Merits

Before examining the claims individually, we must address a flaw common to many of them.
Plaintiff is suing defendants Sheahan, Velasco and Anderson under 42 U.S.C. § (“section”) 1983
solely in their individual capacities. (Second Am. Compl. {ff 1, 8.) Liability under section 1983
“does not attach unless the individual defendant caused or participated in a constitutional

deprivation.” Vance v. Peters, 97 F.3d 987, 991 (7" Cir. 1996) (internal quotation marks and citation

omitted). Plaintiff alleges that Sheahan “has ultimate responsibility for . . . the Cook County Jail”
and that Velasco has “full responsibility for its day to day operations.” (Second Am. Compl. {{f 5,
6.) Those allegations support the inference that Sheahan and Velasco knew about and approved of
the alleged practice of housing inmates in condemned cells and requiring them to sleep in “boats.”
It does not, however, support the inference that they knew and approved of housing plaintiff in a cel]
with a malfunctioning lock? or had any involvement in the alleged denial of treatment for plaintiff's

back injury‘ or asthma.’ Consequently, the latter claims must be dismissed.

Even if Sheahan or Velasco had ordered that plaintiff be housed in a cell with a
malfunctioning lock that claim would still have to be dismissed because a four-hour confinement is
not a deprivation of constitutional magnitude. See infra at 5-6.

“Even if Sheahan or Velasco personally denied plaintiff treatment for his back injury, this
claim would still have to be dismissed because the injury, as plaintiff describes it in his grievance,
does not constitute a serious medical need. (See Second Am. Compl., Ex. B, 2/25/01 Grievance
(alleging that plaintiff “scrap[ed] his back” on the edge of the bunk)); Wynn v. Southward, 251 F.3d
588, 593 (7" Cir. 2001) (to state medical care claim “a prisoner must show that (1) he had a serious
medical need, and (2) the defendants were deliberately indifferent to it”).

SEven if Sheahan or Velasco personally denied plaintiff medical treatment for his asthma
attack, this claim would still have to be dismissed. The grievance plaintiff filed about this incident

4.


events, though unpleasant, are not the kind of “extreme deprivations” required to sustain a
conditions-of-confinement claim. Henderson, 196 F.3d at 845 (internal quotation marks and citation
omitted).

Deliberate indifference allegations are also lacking for this claim. Even if Sheahan and
Velasco knew after plaintiff filed his first water-related grievance that water sometimes leaked into
his cell — an assumption that is not supported by plaintiff's complaint — the only harm plaintiff
reported was that his bedding became wet. (Second Am. Compl, Ex. A, 1/1/01 Grievance.) Wet

bedding does not pose “‘a substantial risk of serious harm” to “inmate health or safety.” Farmer, 511

US. at 837. Because plaintiff has not alleged that defendants knew that the water problem posed
a serious threat to his well-being and disregarded that threat, he has not alleged that they were
deliberately indifferent.

Finally, plaintiff alleges that defendant Anderson violated his Fourteenth Amendment rights
by failing to protect him from the other inmates. Prison officials have a duty “to protect prisoners

from violence at the hands of other prisoners,” but they breach that duty only if they are aware of,

and disregard, an objective risk to an inmate’s safety. Farmer, 511 U.S. at 833 (internal quotation
marks and citation omitted); Mayoral v. Sheahan, 245 F.3d 934, 938 (7" Cir. 2001). Plaintiff alleges
that: (1) he told Anderson he need to be transferred out of section 3-G because he had enemies there;
(2) Anderson agreed to the transfer, but ultimately did nothing; and (3) as a result, plaintiff was
severely beaten by other inmates and sustained permanent injuries. (Second Am. Compl. { 19.)

Those allegations adequately state a failure to protect claim against Anderson.

7.


is clear that no relief could be granted under any set of facts that could be proved consistent with the

allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

Discussion
Exhaustion

Bailey’s damage claims against Sheahan, Velasco and Anderson are governed by the Prisoner
Litigation Reform Act (“PLRA”). That statute requires prisoners to exhaust “such administrative
remedies as are available” before filing a section 1983 suit. 42 U.S.C. § 1997e(a). Bailey says he
filed grievances on each of his claims, but received no response to any of them. (Second Am.
Compl. § 10.) The jail officials’ inaction, Bailey alleges, made it impossible for him to pursue the
process any further. (Id.) Because he pursued the jail’s administrative procedures as far as he could,
Bailey contends that he has satisfied the exhaustion requirement. (Id. (alleging that administrative
process requires response from jail).)

Defendants say the jail officials’ alleged inaction does not excuse plaintiff from the
exhaustion requirement. Rather, defendants say, detainees are required to pursue administrative
procedures even if the relief they seek is unavailable administratively. While that is true, see Booth
vy. Churner, 532 U.S. 731, 741 (2001) (stating that PLRA mandates exhaustion “regardless of the
relief offered through administrative procedures”), it is also irrelevant. Plaintiff is not making a
futility argument. Rather, he claims that he was prevented from exhausting his remedies by the jail
officials’ refusal to participate in the process. In such cases, our court of appeals has said,
administrative remedies are unavailable and the exhaustion requirement is met. See Lewis v.

Washington, 300 F.3d 829, 833 (7" Cir. 2002).

3+


The medical care claim plaintiff asserts against defendant Anderson suffers the same fate.
Plaintiff alleges that Anderson “was in charge of Division 9 [of the jail] during the time period in
which [plaintiff] was injured.” (Id. 7.) But that allegation does not support the inference that he
had any involvement in, or even awareness of, the alleged denial of medical care to plaintiff for his
asthma attack. Because plaintiff has not alleged that Anderson participated in that action, the
medical care claim plaintiff asserts against him must be dismissed.°

That leaves the condemned cell and sleeping conditions claims plaintiff asserts against
Sheahan and Velasco and the failure to protect claim plaintiff asserts against Anderson. To state a
viable conditions-of-confinement claim, plaintiff must allege both that he suffered a serious
deprivation and that defendants acted with deliberate indifference. Farmer v. Brennan, 511 U.S. 825,

834 (1994). A deprivation is serious within the meaning of Farmer only if it denies the inmate “the

minimal civilized measure of life’s necessities.” Id. (internal quotation marks and citation omitted).
Requiring a detainee to sleep on a mattress on the floor does not, however, constitute such a
deprivation. See Jenkins v. Velasco, No. 94 C 7391, 1995 WL 765315, at *5 (N.D. Ill. Dec. 27,
1995) (“Jenkins’ assertion that he was forced to sleep on the floor of the Cook County Jail for ten
days... does not, in and of itself, amount fo a sustainable allegation of a constitutional violation.”);
Coughlin v. Sheahan, No. 94 C 2863, 1995 WL 12255, at *1-2 (N.D. Ill. Jan. 12, 1995) (allegations

that detainee was required to sleep on a mattress on the floor for nearly a year did not state

suggests that he had recovered from his asthma attack nearly an hour before the corrections officer
appeared to open his cell. (Id. | 21; Defs.’ Mem. Supp. Mot. Dismiss Second Am. Compl., Ex.
A,11/4/01 Grievance.) Because plaintiff was apparently not in respiratory distress when he requested
medical attention, defendants’ refusal to provide it would not constitute deliberate indifference. See
infra at 5-7.

‘See n.5.

5.


Conclusion

For the reasons stated above, defendants’ motion to dismiss is granted in part and denied in
part. All of the claims that plaintiff asserts against defendants Sheahan and Velasco and the medical
care claim that plaintiff asserts against defendant Anderson are dismissed without prejudice. The
Court gives plaintiff one last chance — his fifth, given this case’s previous life before Judge Kennelly
— to amend these claims, if he can do so in accordance with Rule 11. If plaintiff does not amend
these claims within fourteen days of the date of this Memorandum Opinion and Order, the dismissal
will become with prejudice. Defendants’ motion to dismiss the failure to protect claim asserted
against defendant Anderson is denied.

ENTER:

ce

UNITED STATES DISTRICT JUDGE

parep: __9- 3-03

-8-



Minute Ordeg Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Paul E. Plunkett Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 02 C 7226 DATE 9/3/2003
CASE Javier Bailey vs. Michael Sheahan, et al
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]

DOCKET ENTRY:

() QO Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

(3) ao Answer brief to motion due, . Reply to answer brief due

(4) i) Ruling/Hearing on set for at

(5) Oo Status hearing[held/continued to] (set for/re-set for] on set for __ at

(6) o Pretrial conference[held/continued to} [set for/re-set for] on set for at

) Oo Trial{set for/re-set for] on at

(8) oO [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) OLocal Rule 41.1 COFRCP41(a)(1) CFRCP41(a)(2).

(10) | {Other docket entry) | ENTER MEMORANDUM OPINION AND ORDER: Defendants’ motion to dismiss is
granted in part and denied part. All of the claims that plaintiff asserts against defendants Sheahan and Velasco and the medical
care claim that plaintiff asserts against defendant Anderson are dismissed without prejudice. The Court gives plaintiff once
fast chance - his fifth, given this case’s previous life before Judge Kennelly - to amend these claims, if he can do so in
accordance with Rule 11. If plaintiff does not amend these claims within fourteen days of the date of this Memorandum
Opinion and Order, the dismissal will become with prejudice. Defendants’ motion to dismiss the failure to protect claim
asserted against defendant Anderson is denied. Status hearing date of 10/1/03 at 9:30a.m. to stand.

a) of [For further detail see order attached to the original minute order.]

No notices required, advised in open court,
No notices required. urbe of notices
Notices mailed by judge's staff.
sep 0 5 2003
Notified counsel by telephone. date docketes
wo | Docketing to mail notices.
Mail AO 450 form. 1uNGa LoAUSIO’s'n doekbiingd dep initials
v | Copy to judge/magistrate judge. WITH
courtroom A236 BW 4 gas 60 date mailed notice
TBK deputy’s
initials SIA SEEDERS
Mpabiime'recetvedin’ 2 TJ
cena Chae tee rig ey ini



Fourteenth Amendment claim). Unless that sleeping arrangement caused plaintiff to suffer some
serious injury, it cannot support a Fourteenth Amendment claim. See Landfair v. Sheahan, 878 F.
Supp. 1106, 1112 (N.D. Ill. 1995) (plaintiff, who claimed he contracted meningitis from sleeping
on the floor, alleged serious deprivation); Jenkins, 1995 WL 765315 at *5-6 (allegations that having
to sleep on the floor coupled with the lack of clean clothing and the gang problems in the jail caused
plaintiff to have a mental breakdown alleged serious deprivation). Because plaintiff has not alleged
that the sleeping conditions caused him any injury, let alone a serious one, his claim must be
dismissed.

Plaintiff's failure to allege that he was injured by the sleeping conditions also dooms his
deliberate indifference allegations. Defendants were deliberately indifferent if they had “actual
knowledge of impending harm easily preventable.” Delaney v. DeTella, 256 F.3d 679, 683 (7th Cir.
2001) (emphasis, internal quotation marks and citation omitted). Because plaintiff has not alleged
that the sleeping conditions posed a threat to him, defendants could not have been deliberately
indifferent to that threat.

The fact that plaintiff was housed in a condemned cell that leaked also does not constitute
aserious deprivation. Plaintiffalleges that water leaked into his cell on two occasions, (Second Am.
Compl. {{ 15-16.) The first time, plaintiff says, the water soaked his bedding. (Id. § 15.) The

second time it caused him to fall and “scrap[e]” his back.” (Id., Ex. B, 2/25/01 Grievance.) Those

"In the body of his second amended complaint, plaintiff alleges that he “seriously injur[ed]”
his back when he slipped on the water. (Second Am. Compl. { 16.) That allegation is belied,
however, by the grievance he filed about the incident, which says he scraped his back on the bunk
when he fell. (Id., Ex. B, 2/25/01 Grievance.) When there is a conflict between the allegations of
acomplaint and an exhibit, the exhibit controls. See Northern Ind. Gun & Outdoor Shows, Inc. v.
City of South Bend, 163 F.3d 449, 454 (7th Cir. 1998).

6-



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
JAVIER BAILEY, )
)
Plaintiff, )
)
v. ) No. 02 C 7226
) Paul E. Plunkett, Senior Judge
MICHAEL SHEAHAN, et al., ) 0
)
Defendants. ) DOCKET

MEMORANDUM OPINION AND ORDER

Javier Bailey has sued Michael F. Sheahan, Cook County Sheriff, Emesto Velasco, Director
of the Cook County Jail and Cook County Corrections Officer Anderson for their alleged violations
of his Fourteenth Amendment rights.' Defendants have filed a Federal Rule of Civil Procedure
(“Rule”) 12(b)(6) motion to dismiss the claims plaintiff asserts against them in his second amended

complaint. For the reasons set forth below, the motion is granted in part and denied in part.

‘Plaintiff actually alleges that defendants violated his right to be free from cruel and unusual
punishment. However, pretrial detainees like plaintiff are “protected by the Fourteenth
Amendment’s Due Process Clause rather than the Eighth Amendment’s prohibition against cruel and
unusual punishment.” Henderson v. Sheahan, 196 F.3d 839, 844 n.2 (7th Cir. 1999).

Defendants also ask the Court to strike plaintiff's complaint under 28 U.S.C. § 1915(g).
Because their argument on this point is so poorly developed, however, the Court deems it to be
waived. Clay v. Holy Cross Hospital, 253 F.3d 1000, 1002 n.1 (7th Cir. 2001) (stating that
“perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority,

are waived”) (internal quotation marks and citation omitted).



Facts

Javier Bailey has been held at the Cook County Jail since November 16, 2000. (Second Am.
Compl. § 4.) The first cell in which he was housed was overcrowded. (Id. / 14.) As a result,
plaintiff was forced to sleep on the floor in a “blue plastic contrivance” that the inmates call a boat.
(Id.) Moreover, water sometimes leaked into the cell soaking Bailey’s bedding and, on February 24,
2001, causing him to fall and injure his back. (Jd. ff 15-16.) Though he requested immediate
medical assistance for that injury, defendants did not provide it. (Id. ¥ 16.)

Subsequently, Bailey was housed in another cell that had a malfunctioning lock. (Id. 21.)
In October 2001, a corrections officer failed to open the cell door manually, leaving Bailey locked
in the cell from 8:00 a.m. until 12:00 p.m. (Id.) During that time, Bailey had an asthma attack and
was forced to use another inmate’s asthma pump for relief. (Id.) When the corrections officer
appeared to open his cell Bailey requested medical attention, but none was provided. (Id.)

Sometime thereafter, Bailey was transferred from Section 3-C to Section 3-G of Division 9
of the Jail. (Id. 4] 19.) Bailey told defendant Anderson that he had enemies in Section 3-G and asked
for another transfer. (Id.) Bailey was not transferred and on May 31, 2002 he was attacked by
several other inmates. (Jd.) Since the beating, Bailey has had vision problems and frequent

headaches, (Id.)

The Legal Standard
On a Rule 12(6)(6) motion to dismiss, the Court accepts as true all well-pleaded factual
allegations of the complaint, drawing all reasonable inferences in plaintiff's favor. Midwest

Grinding Co. v. Spitz, 976 F.2d 1016, 1019 (7th Cir. 1992). No claim will be dismissed unless “it

-2-