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(1) = Outdated Food

Plaintiff complains that the food at Will County was served past the “use by” date on the
packaging. Specifically, he complains that what the court assumes was packaged frozen fish
dated to be used by January 26, 2001, was served in April, 2001. Also, powdered milk was out
of date (Plaintiff gives no specifics.). And the bread and cake, delivered in large “garbage” bags’,
were out of date (again no specifics.) Further, Plaintiff seems to be complaining that inmates in
the juvenile division get donated bread, cake and coffee cake, whereas the adults do not. He does
not state whether any food that he ate was spoiled or that he was made sick by any of these
outdated foods. Instead, Plaintiff alleges that he has had stomach problems, specifically
diarrhea. He does not state that the out of date food caused his diarrhea, or even that he ate any
of the food described in his complaint, or how long his illness lasted. Plaintiff was employed in
the kitchen and could conceivably simply be reporting what he saw, not what he ate. However,
reading the complaint in the light most favorable to the Plaintiff, the court will assume that at
some point Plaintiff himself ate at least some of the “outdated” food.

Defendants state, without any case authority, that serving food that is past the “use by”
date does not state a constitutional claim, and that in any case because there have been no
appellate decisions on this specific point, therefore defendants enjoy qualified immunity on this
claim. Defendants do not enjoy qualified immunity regarding food service, as the law regarding
jail food has been clearly established for some time. However, the court need not belabor the

point, as Plaintiff has failed to state a constitutional violation regarding food service at Will

' The court assumes that the bread and cake bags were large bulk delivery bags, as
Plaintiff makes no allegation that the items were in fact, garbage.

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(3) Access to the Courts

Finally, Plaintiff alleges that he is unable to use the computer available in the library, and
has asked to go to the paper library but has been unsuccessful. He fails to allege that he has any
case pending, that he has been harmed in any legal action as a result of not going to the library, or
indeed any indication of why he needed to use the library in the first place. Only deliberate, not
negligent, actions resulting in denial of access to the courts are actionable. Harrel v, Cook, 169
F. 3d 428, 431-32 (7" Cir. 1999). Plaintiff must show that he suffered a concrete injury from the
denial of access to the court in order to maintain a claim for denial of access. Nance v. Vieregge,
147 F. 3d 589, 591 (1998). He must show that unjustified acts or conditions hindered his efforts to
pursue a non-frivolous legal claim. Lewis v. Casey,518 U.S. 343(1996). Plaintiff's claim that he
was only given access to the computer library and not the “paper” library, without more, fails to
state a claim for lack of access to the court.

(4) Supervisory Liability

Defendant Warden Block and Defendant Underwood assert that in any case, each has no
personal involvement with any of plaintiff's claims and should be dismissed from the case on that
basis. Plaintiff claims only that Warden Block is the “overseer” of the institution and Underwood
is the “overseer” of the kitchen. He does not claim that either had personal knowledge of the
service of “outdated” food, nor that either intended to serve such food to the detainees. Further,
he fails even to connect either defendant to the allegations regarding the law library and the jail
issued clothing. An individual cannot be held liable in a $1983 action unless he caused or
participated in the alleged constitutional deprivation. Vance y, Peters, 97 F. 34 987, 991 (7" Cir.

1996); . Sheik-Abdi v. McClellan, 37 F.3d 1240, 1248 (7th Cir. 1994); Rascon v. Hardiman, 803


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bounces from one jail to another, in the unlikely event that he will return to Will County, the
court addresses the merits of the complaint.
DISCUSSION

Plaintiff had been a pretrial detainee while in the Will County Jail; therefore, his claims
regarding the conditions of his confinement are analyzed under the Due Process Clause of the
Fourteenth Amendment rather than the Eighth Amendment. See Tesch v. County of Green Lake,
157 F. 3d 465, 473 (7th Cir. 1998), citing Bell V. Wolfish, 441 U.S. 520, 535 n. 16 (1979). The
standard for determining punishment is similar whether considered in the context of the Due
Process Clause or the Eighth Amendment. Salazar v. City of Chicago, 940 F.2d 233, 239-240
(7th Cir. 1991). The Due Process Clause of the Fourteenth Amendment prohibits the state from
inflicting "punishment" on pretrial detainees, Brownell v. Figel, 950 F.2d 1285, 1289 (7th
Cir.1991) (citing Bell v. Wolfish, 441 U.S. 520, 536(1979)). Although the source of protection for
pretrial detainees is the Due Process Clause, the protection is at least as extensive as that
provided for convicted prisoners by the Cruel and Unusual Punishment Clause of the Eighth
Amendment. Salazar v. City of Chicago, 940 F.2d 233, 239-40 (7th Cir.1991).

Accordingly, a pretrial detainee claiming that prison officials inflicted unconstitutional
punishment typically must allege both a subjective component--the jail officials acted with the
Tequisite state of mind--and an objective component--the alleged punishment was sufficiently
serious. See Wilson v. Seiter, 501 U.S. 294, 298 (1991). This state of mind requires that the
official " ‘consciously disregar[d]' a substantial risk of serious harm." Farmer v. Brennan, 511
USS. 825,837 (1994) (quoting Model Penal Code § 2.02(2)(c) (1985)). Stone-El v. Sheahan, 914

F.Supp. 202, 205-06 (N.D. Il. 1995).


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County, For jail food to be adequate, all that is required is "nutritionally adequate food that is
prepared and served under conditions which do not present an immediate danger to the health
and well being of the inmates who consume it." French v. Owens, 777 F.2d 1250, 1255 (7th Cir.
1985). A well balanced diet, containing sufficient nutritional value to preserve health is all that is
constitutionally required. Lunsford v. Bennett, 17 F. 3d 1574, 1580 (7" Cir. 1994). It does not
appear from Plaintiff's allegations that the food was nutritionally inadequate, nor does it appear
from his allegations that this food presented an immediate danger to his health. Plaintiff has
failed to state that the food was spoiled. Defendants are correct to point out that the “used by”
date, especially for frozen or dried foods, as opposed to fresh foods, does not mean anything. It
is not an allegation that the food is spoiled.
Without these allegations, plaintiffs' claims have "nothing to distinguish it from incidents
of negligence which can occur even at certain restaurants in downtown Chicago." Summers v.
Sheahan, 883 F.Supp. 1163, 1170 (N.D.II1.1995), Even if he had alleged that the food was
spoiled, occasional service of spoiled food does not rise to the level of a constitutional violation.
Antonelli v. Sheahan, 863 F.Supp. 756, 762 (N.D.II1.1994). Therefore, the court finds that the
service of food from packaging with outdated “use by” dates, cannot be said, without more, to
deprive him of basic nutritional needs and does not amount to a constitutional violation.
Furthermore, in order to state a claim for relief for any conditions in a jail, a prison official
may be found liable for deliberate indifference if he knows of and disregards an excessive risk to
inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994))." '{TJhe official must both
be aware of facts from which the inference could be drawn that a substantial risk of serious harm

exists, and he must also draw the inference.’ " /d., In order to state a valid claim under the


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F.2d 273(7th Cir. 1986)(citing Wolf-Lillie v. Sonquist,699 F. 2d 864, 869 (7" Cir. 1983).
Supervisors and others in authority cannot be held liable for any alleged wrongdoing on the part of
subordinates pursuant to the doctrine of respondeat superior because that doctrine does not apply
in §1983 actions. Pacelli v. DeVito, 972 F.2d 871, 877 (7" Cir. 1992). See Jones v. City of
Chicago, 856 F. 2d 985, 992 (7" Cir. 1988). And the supervisory liability does not attach in any
case, when there is no constitutional violation. Thus, there is no supervisory liability stated in
Plaintiff's complaint against either defendant.
CONCLUSION
For the above reasons, the defendants’ motion to dismiss is granted. This case is

dismissed in its entirety. Any pending motions are denied as moot.

ENTER:

PaseLe Ve yy [iy

Blanche M. Manning
UNITED STATES DISTRICT COURT

DATED: WOY 25, 2001.



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Minute Order Form (06/97)
United Six..2s District Court, Northern Distrfecof Llinois
Name of Assigned Judge ii Sitting Judge if Other
or Magistrate Judge Blanche M. Manning than Assigned Judge
CASE NUMBER 01 C 3961 DATE 11/21/2001
CASE Harvey vs. Block, et al.
TITLE
Uin the following box (2) indicate the party filing the motion, e.g, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented. }
DOCKET ENTRY:
qd) 0 Filed motion of [ use listing in “Motion” box above.] “|
(2) o Brief in support of motion due _
(3) q Answer brief to motion due _. Reply to answer brief due
(4) im Ruling/Hearing on set for at
(5) Qa Status hearing[held/continued to] [set for/re-set for] on setfor____at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for __ at :
(7) Oo Trial{set for/re-set for]on____at
(8) QO [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OGeneral Rule 21 CIFRCP41(a)(1) CI FRCP41(a)(2).
ao [Other docket entry} This matter is before the court for consideration of defendants’ motion to
dismiss the complaint for failure to state a claim. Plaintiff has failed to file a response to the motion,
despite the court’s sua sponte granting him an extension of time to do so. The defendants’ motion to
dismiss is granted. This case is dismissed in its entirety. Any pending motions are denied as moot. Enter
Memorandum and Order.
G1) ff [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
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Notified counsel by telephone. & %. 2006!
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J21/2008
courtroom date myiled notice
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Fourteenth Amendment, plaintiff would need to allege that spoiled food was routinely served, and
that plaintiffs complained about this situation to defendant, who did nothing about it. His failure
to allege such facts means that he has failed to state a claim for relief regarding food service.

(2) Jail Issued Underwear

Plaintiff asserts that he should not have to wear jail issued clothing, particularly the
underwear. He does not state that the clothing is not washed, but rather that it shows stains from
prior use. Because neither component of a constitutional conditions claim, discussed Supra at pp.
3-4, is present here, the conditions of which plaintiff complains are not so unreasonable as to
violate due process, and plaintiff has failed to allege injury, this claim must be dismissed.

Pretrial conditions of imprisonment “do not reach even the threshold of constitutional
concern until a showing is made of ‘genuine privations and hardship over an extended period of
time.”" Bell v. Wolfish, 441 U.S.520,542(1979). Here, defendants provided plaintiff with clean
clothing. The supply of these items may not have been as plaintiff desired, and it is unfortunate
that some of the jail-issued underwear was not pristine. Nevertheless, plaintiff cannot complain
that he was deprived of basic necessities. It also follows that defendants did not have the requisite
intent required to be deliberately indifferent to plaintiff's sanitary needs.

Plaintiff not only fails to allege a constitutional violation, he also fails to allege any injury
from wearing jail issued clothing. The Prison Litigation Reform Act requires an inmate to show
some physical injury in order to recover for damages. See 42 U.S.C.§1997e(e); Zehner v. Trigg,
133 F. 3d 459, 461 (7" Cir. 1997). Because plaintiff does not claim any injury, his claim must

also fail.


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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Dominick Harvey,

)
)
Plaintiff, Dock pen

v. ved 2007 Case No. 01 C 3961
Warden Charles Block, et al., }
Defendants, } Judge Blanche M. Manning
MEMORANDUM AND ORDER

Plaintiff Dominick Harvey is currently an inmate at DuPage County Jail, and formerly
was an inmate at the Will County Adult Detention Center (“Will County”). He brought this pro
se civil rights action pursuant to 42 U.S.C.§1983, claiming that the defendants, the warden and
the director of food service at Will County, violated his constitutional rights by serving him
outdated food, denying him access to the courts, and forcing him to wear institutional issued
underwear. This matter is before the court for consideration of defendants’ motion to dismiss the
complaint for failure to state a claim. Plaintiff has failed to file a response to the motion, despite
the court’s sua sponte granting him an extension of time to do so. As the court stated in that
order, it will now rule without benefit of Plaintiffs views. For the reasons stated herein, the
motion is granted.

STANDARD OF REVIEW

In considering a motion to dismiss, the court must accept as true all well-pleaded facts
and must draw all reasonable inferences from those allegations in plaintiffs favor; a complaint
shall only be dismissed if it is beyond doubt that the plaintiff can prove no facts which would

entitle him to relief. MCM Partners, Inc. v. Andrews-Bartlett & Assoc., Inc., 62 F.3d 967, 972


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(th Cir. 1995). Furthermore, when confronted with a pro se complaint, the court must employ a
more liberal standard of review than would be used where an attorney prepared the complaint.
Haines v. Kerner, 404 U.S. 519 (1972); Whitford v. Boglino, 63 F.3d 527, 535 (7th Cir. 1995).
Despite this liberal review of pleadings, federal rules still require that the complaint allege facts
which would provide an adequate basis for each claim. Gray v. Dane County, 854 F.2d 179, 182
(7th Cir. 1988). On a motion to dismiss, a plaintiff's well-pleaded allegations of fact are taken as
true and all reasonable inferences are drawn in the plaintiff's favor. Leatherman v. Tarrant
County Narcotics Intelligence and Coordination Units, 507 U.S. 163 (1993); Swofford v.
Mandrell, 969 F.2d 547, 549 (7th Cir.1992). Additionally, as long as they are consistent with the
allegations of the complaint, a party may assert additional facts in his or her response to a motion
to dismiss. Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1428 (7th
Cir.1996); Highsmith v. Chrysler Credit Corp., 18 F.3d 434, 439-40 (7th Cir.1994).
Furthermore, the court can take judicial notice of matters of public record without converting a
motion to dismiss into one for summary judgment. Henson v. CSC Credit Services, 29 F. 34
280, 284 (7" Cir. 1984).
FACTS
Initially, it is clear from the Plaintiffs submissions to this court (and not using the
affidavit supplied by defendants, attached to their motion to dismiss) that the Plaintiff is no
longer incarcerated in Will County, and has moved about quite a bit since this case was filed.
The most recent change of address shows Plaintiff at the DuPage County Jail. Therefore, his

claims as to Will County are now moot. However, because Plaintiff's history shows that he