unconstitutional. The relevant question is whether they amounted to punishment, since a pretrial
detainee may not be punished without due process of law. Bell v. Wolfish, 441 U.S. 520, 535-36
(1979); May, 226 F.3d at 884.

Confinement in one’s cell and loss of privileges are common punishments in correctional
institutions, but are not necessarily punitive. A prisoner in protective custody may be confined to
his cell for his own protection, for example, and certain privileges may be unavailable to a class
of prisoners for administrative reasons unrelated to punishment. See Higgs v. Carver, 286 F.3d
437, 438 (7th Cir. 2002). Nevertheless, correctional officials may not arbitrarily restrict a
detainee’s limited liberty and avoid the obligations of due process simply by claiming that the
detainee is not being punished. Restraints not expressly imposed as punishment may nevertheless
be considered to be punishment if they are not rationally related to a legitimate non-punitive
governmental purpose or if they appear excessive in relation to the purpose they allegedly serve.
Wolfish, 441 U.S. at 538-39; May, 226 F.3d at 884.

Morris states that he has a good disciplinary record, but acknowledges he was charged with
attempting to escape in 1999. Morris was charged with violent crimes and had previously been
convicted of violent crimes.” Requiring Morris to be handcuffed and shackled during movement
within the Jail needs no further justification.

Nor do frequent and randomly-timed cell searches. "Shakedowns" are a necessary part of
jail operations. See Block v. Rutherford, 468 U.S. 576, 588-91 (1984); Wolfish, 441 U.S. at 555-
57. Morris would have to allege facts indicating that he was singled out for arbitrary harassment
in order to claim that the "shakedowns" were a form of concealed punishment or retaliation.

It is less clear that there was a non-punitive purpose for confining Morris to his cell for 23
hours every day without privileges for nineteen months. It appears from the complaint that Morris
was placed in a protective custody unit because he needed insulin injections, but was not permitted

to come in contact with protective-custody detainees. Morris may be able to allege additional facts

¥ The court may take judicial notice of matters of public record in ruling on a motion under Rule 12(b)(6).
Anderson vy. Simon, 217 F.3d 472, 474-75 (7th Cir. 2000). Because the same standards govern the review of a
prisoner’s complaint under 28 U.S.C. § 1915A to determine whether it states a claim upon which relief may be
granted, see Wynn, 251 F.3d at 591-92; Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000), the court
presumably may do so here. The publicly-accessible internet website maintained by the Illinois Department of
Corrections shows that Morris was recently convicted of aggravated criminal sexual assault and armed robbery on
charges brought in 1999, and had previously been convicted of robbery, armed robbery and unlawful restraint.

4



no need for legal terms or legal argument, only "a short and plain statement of the claim" is
required. Fed.R.Civ.P. 8(a)(2).

If Morris does not know the name of a defendant, he may name that person as “John Doe
#1" or "Jane Doe #2" and provide as much identifying information as possible. Every person
Morris wishes to sue must be named as a defendant in the caption of the complaint, including
"John Does."

The clerk shall send Morris a copy of the amended complaint form and instructions for filing
along with a copy of this order. The original, signed complaint must be filed together with one
copy for the court and one copy for each defendant named. Copies may be either photocopies or
conformed copies, that is, typed or hand-written word for word from the original. Morris may
request additional copies of the amended complaint form from the Prisoner Correspondent. If
Morris does not file an amended complaint in accordance with the instructions in this order, this

suit may be dismissed.

JAMES B. MORAN

Se Judge, U.S. District Court

June_/3_, 2003


If Morris believes someone was deliberately indifferent to his need for treatment but does
not know his or her name, he may submit an amended complaint naming as one defendant a
supervisory official, such as the institution’s medical director, while naming each defendant whose
name is unknown as a “John (or Jane) Doe." The amended complaint should describe each such
defendant and his or her responsibilities, and state why Morris believes such person was
deliberately indifferent to his need for treatment and how it has harmed him. Although a
supervisor is not liable under § 1983 for a subordinate’s conduct unless he or she was personally
involved, Boyce, 314 F.3d at 888, if Morris’s allegations indicate that it is likely that his
constitutional rights were violated by an unknown subordinate, this suit may proceed against the
supervisor so that Morris may use pretrial discovery to learn who was actually responsible. See
Billman v. Indiana Dept. of Corrections, 56 F.3d 785, 789-90 (7th Cir. 1995).

RESTRICTIVE CONDITIONS

Morris complains of the restrictive conditions of his confinement as a "Special Incarceration"

(S.I.) detainee, and states that he was the only one in this category who was a pretrial detainee.

He alleges that from June 15, 2000 through January of 2002 he was confined to his cell 23 hours

per day and required to take his recreation time at the same time as his cellmate. Morris
complains he was "treated like a dog" and had "absolutely no privileges at all." Morris also
complains of being subjected to 3-5 "shakedowns" (cell searches) per week since August of 2001,
and of being handcuffed and shackled whenever he was moved. Morris’s time in the law library
was limited to an hour and a half per week, and a court order to give him additional time was
ignored.

Taking the last claim first, a state official’s failure to obey a state-court order does not
violate the Constitution. Although prisoners have a constitutional right of access to the courts,
restricting Morris’s access to the law library could violate that right only if he suffered some
detriment as a consequence, Lewis v. Casey, 518 U.S. 343, 350-54 (1996); May v. Sheahan, 226
F.3d 876, 883 (7th Cir. 2000), and Morris alleges none.

With respect to Morris’s confinement in his cell for 23 hours per day and lack of privileges,

Morris may be able to state a claim. These restrictions and deprivations are not necessarily


tending to show that these restrictions and deprivations were not reasonably related to a non-
punitive purpose. As in the case of Morris’s medical care claims, Morris must also name the
defendant or defendants responsible and explain their roles in imposing these conditions of

confinement on him.

RETALIATION

Morris states that in January of 2002 he wrote an 18-page letter of complaint addressed to
Ms. Zelda Whittler, a Cook County undersheriff, and his wife sent it by registered mail. In
response, "this administration had a fit." Thereafter, members of the Special Emergency Response
Team, or S.O.R.T., were assigned to escort Morris to and from his court appearances. According
to Morris, S.O.R.T. officers are intimidating; they "will break you up in no time." Morris alleges
that "[t]he $.O.R.T. officers told me more than once, ‘[CCDOC Assistant] Director Lyles don’t
like you, due to the fact that you went over his head.’"

The First Amendment guarantees Morris the right to petition governmental officials to seek
redress of grievances. Although a detainee has no right to choose his guards, "otherwise
permissible conduct can become impermissible when done for retaliatory reasons." Zimmerman
vy. Tribble, 226 F.3d 568, 573 (7th Cir. 2000). Nevertheless, assuming that the S.O.R.T. officers
were assigned to accompany Morris to signify Assistant Director Lyles’ displeasure with Morris’s
constitutionally protected speech, what was Morris’s injury? Morris does not allege that he was
assaulted or threatened by the S.O.R.T. officers, or that he was deterred from filing any grievance,
complaint or suit. Being told that Lyles disliked him hardly even qualified as harassment.

Persons having power over others are likely to resent those who complain about them to their
superiors, and resentment may lead to retaliation, even if no more than a nasty glare or an angry
word. If the person in power is a government official, the First Amendment is implicated, but not
every act of retaliation amounts to a federal case. The venerable maxim of tort law, "de minimis
non curat lex," "the law does not care about trifles," "place[s] outside the scope of legal relief the
sorts of intangible injuries normally small and invariably difficult to measure that must be accepted

as the price of living in society rather than made a federal case out of," and applies to



so AO 450(Rev. 5/85)Judgment in a Civil Case

United States District Court
Northern District of Dlinois

Eastern Division

Ernest Morris JUDGMENT IN A CIVIL CASE
v. Case Number: 03 C 2613

Ernesto Velasco et al.

oO Jury Verdict. This action came before the Court for a trial by jury. The issues have been
tried and the jury rendered its verdict.

| Decision by Court. This action came to trial or hearing before the Court. The issues
have been tried or heard and a decision has been rendered.

IT IS HEREBY ORDERED AND ADJUDGED that following initial review of the complaint
as required by 28 U.S.C. Section 1915A, the complaint is dismissed without prejudice.

Michael W. Dobbins, Clerk of Court

RPMS

Willie A. Haynes, Deputy Cletid

Date: 6/13/2003



Minute Qzger Form (06/97)

+S ( United States District Court, Northern District of Illinois

Name of Assigned Judge or JAMES B. MORAN Sitting Judge if Other
Magistrate Judge than Assigned Judge
CASE NUMBER 03 C 2613 DATE! sun 13, 2003
CASE Ernest Morris (IDOC #N-34658) v. Ernesto Velasco, et al.
TITLE |

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the

MOTION: nature of the motion being presented.]

DOCKET ENTRY:

1) Oo Filed motion of [ use listing in “Motion” box above.}

(2) im Brief in support of motion due

(3) im Answer brief to motion due. . Reply to answer brief due

(4) o Ruling/Hearing on set for at

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

(6) QO Pretrial conferencef[held/continued to] [set for/re-set for] on set for at .

(7) o Trial[set for/re-set for) on at

(8) a [Bench/Jury trial] [Hearing] held/continued to at

9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OQ FRCP4(m) © General Rule21 © FRCP41(a1) © FRCP41(a)(2).

(10) a (Other docket entry} Enter memorandum opinion and order. Following initial review of the complaint as
required by 28 U.S.C. § 1915A, the complaint is dismissed without prejudice. Plaintiff may file an amended complaint
in accordance with the instructions in the memorandum opinion and order, within thirty days of the date of this order. If
plaintiff fails to comply with this order, this action may be dismissed with prejudice. Although plaintiff has not filed a
change of address, IDOC records indicate that he is at Menard Correctional Center. The clerk shall send a copy of this
order to the plaintiff at Menard Correctional Center. g 7

(11) a For further detail see order attached to the origihe! minute order.

INo notices required, advised in open court.

INo notices required,
4 rumber of notices

INotices mailed by judge's staff. JUN 16 2003

date docketed

Docketing to mail notices. . ( °
oy [Mail AO 450 form. Hunoa 19141810 ‘sn fe ny inifals

‘opy to judge/magistrate judge. Nada

INotified counsel by telephone.

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constitutional torts under 42 U.S.C. § 1983. Swick v. City of Chicago, 11 F.3d 85, 87 (7th Cir.
1993).

In the First Amendment context, if the alleged retaliatory conduct would have been unlikely
to deter the exercise of free speech, it is considered de minimis. Power v. Summers, 226 F.3d 815,
820 (7th Cir. 2000); Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982); Cannon v. Burkeybile,
No. 99 C 4623, 2002 WL 448988 (N.D.IIl. 2002)(Hart, J.). The test is objective in that it asks
whether a person of “ordinary firmness" would be deterred; the sensitivities of the particular
plaintiff are irrelevant.” What is de minimis depends to some extent on context; while a prisoner’s
vulnerability must be considered, "[p]risoners may be required to tolerate more than public
employees, who may be required to tolerate more than average citizens, before an action taken
against them is considered adverse." Canon, 2002 WL 448988 at *5 (quoting Thaddeus-X v.
Blatter, 175 F.3d 378, 396-98 (6th Cir. 1999). As alleged in the complaint, the substitution of
"elite" S.O.R.T. officers for Morris’s ordinary escort was a de minimis retaliation that did not

amount to an actionable violation of his First Amendment rights.

CONCLUSION

The complaint is dismissed for failure to state a claim upon which relief may be granted.
Morris may file an amended complaint within thirty days of the date of this order. The complaint
should state, with respect to each defendant, what Morris alleges that particular defendant did or
failed to do that violated Morris’s rights; he should not allege that "defendants" did something

unless he is claiming that each defendant actually did the same thing at the same time. There is

2 In Bart, 677 F.2d at 625, Judge Posner, writing for the Seventh Circuit, stated that retaliation “unlikely to deter
a person of ordinary firmness" would not be actionable, indicating that the test is objective. However, Power, also
written by Judge Posner (and citing Bart), suggests a subjective test: "[aJny deprivation under color of law that is likely
to deter the exercise of free speech ... is actionable ... if ... the circumstances are such as to make such a refusal an
effective deterrent to the exercise of a fragile liberty." Power, 226 F.3d at 820. Although "circumstances" in its literal
sense refers to matters outside the individual, it may be understood as including a plaintiff’s individual susceptibility --
certainly a factor in whether the deterrent is effective. Neither Bart nor Power involved retaliation against incarcerated
persons, but other circuits have adopted Bart’s “person of ordinary firmness" in inmate cases. See Dawes v. Walker,
239 F.3d 489, 492-93 (2d Cir. 2001); Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000); Thaddeus-X v. Blatter,
175 F.3d 378, 396-98 (6th Cir. 1999); Crawford-El v. Britton, 93 F.3d 813, 826 (D.C.Cir. 1996), rev'd on other
grounds, 523 U.S. 574 (1998). Because the test as articulated in Bart is clearly objective, while Power may be
ambiguous and shows no intent to overrule or modify Bart, we treat the test as objective here.

6



2

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

ERNESTO VELASCO, et al.,

ERNEST MORRIS, )
)
Plaintiff, )

) nuree

v. ) No. 03 € 2613 DOCKETED

} JUN 1 6 2003
)
)

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Ernest Morris filed this suit under 42 U.S.C. § 1983 against employees of the
Cook County Department of Corrections (CCDOC), complaining that the conditions of his
confinement in the Cook County Jail violated the Constitution. Morris is permitted to proceed
without prepayment, although, because he was in custody when he filed this suit, the Prison
Litigation Reform Act (PLRA) requires that he pay the full filing fee. A separate order shall
assess the initial partial filing fee required by 28 U.S.C. § 1915(b)(1) and instruct correctional
officials to collect installment payments.

Another provision of the PLRA, 28 U.S.C. § 1915A, requires the court to review complaints
filed by prisoners against governmental entities or their officers or employees prior to service, and
dismiss any portion of the complaint it finds frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a defendant immune from such relief. In
determining whether the complaint states a claim upon which relief may be granted, the court
accepts the allegations of the complaint as true and draws all reasonable inferences in the plaintiff's
favor. Wynn v. Southward, 251 F.3d 588, 591-92 (7th Cir. 2001). As explained below, Morris’s
complaint does not state a claim for violation of his constitutional rights, Nevertheless, because
Morris may be able to do so by pleading additional facts, he will be permitted to file an amended

complaint.


MEDICAL CARE

Morris alleges that he is an insulin-dependent diabetic, and that between June 4, 1999 and
June 7, 2000, medical staff at the Jail denied him insulin injections and placed him on oral
medications suitable for a non-insulin dependent diabetic. Unnecessary suffering or damage to a
detainee’s health that results from jail officials’ deliberate indifference to his serious medical needs
is considered unauthorized punishment in violation of the Fourteenth Amendment. See, e.g., Boyce
vy. Moore, 314 F.3d 884, 888-89 (7th Cir. 2002); Chavez v. Cady, 207 F.3d 901, 904 (7th Cir.
2000). Nevertheless, a two-year statute of limitations applies to § 1983 suits arising in Illinois,
Henderson v. Bolanda, 253 F.3d 928, 931 (7th Cir. 2001), making this claim untimely.

Morris alleges that on January 18, 2002, he was injured when he fell down several steps
while shackled and handcuffed, and suffers from limited movement in his right arm and pain in
his back. Morris states that as of December of 2002, "the medical attention I should receive I
don’t even get. I’ve seen the Orthopedic three times, and the physical therapist three times as
well. Within one year." Near the end of the complaint, Morris states that "I need medical
treatment that I’m stiil being denied."

Morris does not allege that his injury was anything other than an accident, so the injury itself
creates no constitutional claim. Daniels v. Williams, 474 U.S. 327 (1986). Denial of medical care
can give rise to a constitutional claim, but poor medical care, even negligent medical care
amounting to malpractice, does not in itself violate the Constitution, because the Constitution only
forbids unauthorized punishment, the "unnecessary and wanton infliction of pain." Estelle v.
Gamble, 429 U.S. 97, 104 (1976)(quoting Gregg v, Georgia, 428 U.S. 153, 182-83 (1976)).
Denial of medical care violates the Constitution only when it is the result of "deliberate
indifference" --- the knowing, conscious disregard of an excessive risk to a prisoner’s health or
safety. Wynn, 251 F.3d at 593 (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

Morris does not allege what treatment he believes he needed; more importantly, he does not
allege who was responsible for denying it. Claims under § 1983 are brought against “persons
who have deprived the plaintiff of a right secured by the Constitution or federal law; they are not

indistinct clouds of potential liability hovering over correctional institutions.