Brennan, 511 U.S. 825, 837 (1994).
Heat and Smoke

With respect to Plaintiff's allegations concerning heat and smoke, the court concludes that
the conditions he describes do not constitute punishment in the constitutional sense. The heat
extended over a two-week period; while the circumstances were undoubtedly unpleasant, Plaintiff
has not identified any extraordinary impact.on his own health, nor has he identified any specific
physical injury. The court is uncertain whether the smoke exposure occurred only over the same
two-week period or over a longer period of time; regardless of the time frame, however, Plaintiff
has not alleged that the smoke exposure resulted in any specific harm. Indeed, it is not even clear
from Plaintiff's complaint that any of the individuals he has named as Defendants were aware of
the heat or smoke, let alone that such individuals were deliberately indifferent to it. Because
Plaintiff has failed even to allege that the conditions were an extreme deprivation or that the jail
Officials acted with deliberate indifference to his basic human needs, see Wilson , 501 U.S. at 298-
302 (1991), his claims regarding heat and smoke are dismissed.
Restrictions on Outdoor Recreation

In addition to the heat and smoke in June 2003, Plaintiff's complaint challenges the
deprivation of outdoor recreation over a one-year period. As the Seventh Circuit has recognized
in Antonelli v. Sheahan, 81 F.3d 1422 (7th Cir. 1996), “[l]ack of exercise may rise to a constitutional
violation in extreme and prolonged situations where movement is denied to the point that the
inmate’s health is threatened.” /d. at 1432. Case law makes it clear that a prisoner seeking to
establish a threat to his health from the lack of exercise has a difficult burden, however. See Harris
v. Fleming, 839 F.2d 1232, 1236 (7th Cir. 1988) (“Unless extreme and prolonged, lack of exercise
is not equivalent to a medicaily threatening situation”). The fact that prisoners were confined

indoors may not be sufficient to state a claim; even severe restrictions on outdoor exercise do not


appear to rest on the assumption that he must have been involved in every decision at Cook
County Jail, an assumption the court does not share. Indeed, Plaintiff has not identified the role
any of the three other named Defendants played in the decision to deprive him of outdoor
recreation. Defendants Holmes, Vivado, and Maul have not sought dismissal on this ground,
however, and the court presumes their personal involvement will be expiored in discovery and/or
trial or summary judgment.
CONCLUSION

For the reasons stated, Defendants’ motion to dismiss (Doc. No. 11-1, 18-1) is granted in
part and denied in part. Claims relating to heat and smoke exposure are dismissed. Claims
against Sheriff Sheahan in his personal capacity are also dismissed. The motion is otherwise
denied, and Defendants are directed to file their answer to the complaint within 21 days. Counsel
for Defendants is requested to arrange a telephone status conference with Plaintiff and the court

to take place on a date and time during the first week in August 2004.

ENTER:

Dated: July 7, 2004



in addition to the outdoor recreation claim, Plaintiff asserts that during very hot weather in
June of 2003, the heat inside his cell was extreme, “[dlue to the fact that instead of cool air it was
winter heat.” (/d.) The heat, coupled with improper ventilation, smoke from other cells where
inmates were cooking (using milk cartons as fuel), and smoke from cigars smoked by some jail
Officials, combined to create a health hazard. (/d.)

Plaintiff seeks injunctive relief and damages. Apart from the stiffness and pain he
experienced from the tack of outdoor recreation, he cites no specific injuries. Nor has he explained
what role the three supervisory officers (Acting Director John Maul, Superintendent M. Holmes, and
Chief of Security S. Vivado) played in the alleged deprivations. Although Plaintiff has named
Sheriff Michael F. Sheahan in the caption, his complaint makes no mention of the role, if any, that
Mr. Sheahan played in the alleged wrongdoing.

DISCUSSION

Plaintiff was a pretrial detainee in the Cook 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). Under either of
these provisions, the standard for determining whether the conditions of confinement are punitive
is the same, Salazar v. City of Chicago, 940 F.2d 233, 239-240 (7th Cir. 1991): Punishment in the
constitutional sense requires allegations of extreme deprivations over an extended period of time.
Hudson v. McMillian, 503 U.S. 1, 9 (1992); Bell, 441 U.S. at 542. Only those deprivations denying
the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an
Eighth Amendment violation. Wilson v. Seiter, 501 U.S. 294, 298 (1991). Further, to establish a
constitutional violation, Plaintiff must establish not only a grave deprivation, but also that defendant

jail officials were deliberately indifferent to, or intended to subject him to harm. See Farmer v.


violate due process where the pretrial detainee has an opportunity for indoor activities. See
Thomas v. Ramos, 130 F.3d 754, 764 (7th Cir. 1997) (no deprivation where prisoner had room in
his cell to. do push-ups, sit-ups, step-ups, and jogging in place); Stewart v. McGinnis, 800 F. Supp.
604, 616 (N.D. Sil. 1992), affd, 5 F.3d 1031 (7th Cir. 1993) (no constitutional deprivation where
inmates were not permitted to exercise outdoors during an 85-day lockdown period but were
permitted to leave their cells, use the day room, visit other cells, and go to the bathroom at any
time; citing Martin v. Tyson, 845 F.2d 1451, 1456 (7th Cir. 1988) for its holding that a four month
ban on outdoor recreation was acceptable if justified by a legitimate prison concern). Generally,
therefore, it they serve a legitimate objective, even severe restrictions on outdoor exercise do not
violate the Eighth Amendment (or due process, where pretrial detainees are at issue) so long as.
prisoners have ample opportunity to enjoy indoor activity.

In his complaint, Plaintiff implicitly acknowledges that he was out of his cell for an hour a
day, presumably in a day room or other room larger than his cell in which he could choose to
exercise if he wished to do so. Assuming that the outdoor recreation restriction was imposed to
address a legitimate prison concern, that restriction may well not constitute a violation of Plaintiff's
constitutional rights. In their memorandum in support of their motion to dismiss, Defendants have
devoted considerable attention to this issue, insisting that legitimate security concerns justified the
suspension of outdoor exercise. (Defendants’ Motion to Dismiss at [unnumbered] pages 6-8.) In
the court’s view, these assertions go beyond the allegations of Plaintiff's complaint. Defendants
point out that Plaintiff acknowledged that Defendants Maul, Holmes, and Vivado cited safety
concerns when they suspended outdoor recreation, (id. at [unnumbered} 8), but read as a whole,
the compiaint challenges the bona fides of these concerns. Plaintiff points out that inmates are
transported together in vans for travel to court and for medical treatment, despite Defendants’
purported concerns about safety. On a motion to dismiss, the court accepts this allegation as true

and draws inferences in favor of Plaintiff.


Minute Ordte Form (06/97) 3»

United States District Court, Northern District of Illinois

amet Ateet ice | RegkeaR. Pallmeyer | Site Jute fe

CASE NUMBER & 03 C 6481 DATE 71712004
CASE Duane Roach (#2002-0011028) vs. Sheriff Michael Sheahan, et al.
TITLE

[In the foliowing 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:

qa) Oo Filed motion of [ use listing in “Motion” box above.]

(2) Qa Brief in support of motion due___.

@) Oo Answer brief to motion due___. Reply to answer brief due___-

(4) oO Ruling/Hearing on setfor___at

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

(6) Oo Pretrial conference{held/continued to] [set for/re-set for]on___—s—s set for att

(7) a Trial[set forire-set for]on____at

(8) Qa [Bench/Jury trial] [Hearing] held/continued to__—_at

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

OOFRCP4(m) ClLocal Rule 41.1 CUFRCP41(a\1) OO FRCP41(a)(2).

qo) @ [Other docket entry) Enter Memorandum Opinion and Order. Defendants’ motion to dismiss (Doc.
No. 11-1, 18-1) is granted in part and denied in part. Defendants are directed to file their answer to the complaint
within 21 days. Counsel for Defendant is requested to arrange a telephone status conference with Plaintiff and
the court to take place on a time and date during the first week in August 2004. On April 13, 2004, Plaintiff filed
two motions with the court, but there is no indication that he served copies on Defendants, as required by the
court’s rules. Accordingly, the “motion for copy of statement” (Doc. No. 16-1) and “motion of argument reply”
(Doc. No. 17-1) are stricken.

di) @i {For further detail see order attached to the original minute order.]
"= | No notices required, advised in open court.

No notices required.

~ | Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mai) notices.
Mail AO 450 form.

| | Copy to judge/magistrate judge. 1yne3 {aMlsia ‘sn
ETV icy nO:S Wd L- Wl 082

initials — . -

TS RerTh ©



To the extent Defendants rely on safety or security concerns as a basis for this motion, their
arguments are, in this court's view, premature. On a motion for summary judgment, the court
would expect to consider evidence concerning this matter, and such other issues as whether jail
officials could have addressed legitimate security concerns with measures less restrictive than a
wholesale prohibition on outdoor exercise and recreation. Indeed, assuming that legitimate
concerns required Defendants to bar outdoor recreation for protective custody inmates, the court
would expect them to explain what enabled them to lift the restriction in August 2003.

Claim against Sheahan

Defendant Sheahan argues that the complaint should be dismissed as against him. He
asserts that no official capacity claim is available where Plaintiff has not alleged the existence of
acustom or policy enforced or approved by the Sheriff, and that Plaintiff has not alleged that Sheriff
Sheahan had any personal involvement in the challenged restriction.

With respect to the official capacity claim, the court disagrees. Defendants contend that
Plaintiff is required to make “‘boiler plate’ allegations of a custom, policy or practice enforced or
approved by the SHERIFF.” (Defendants’ Motion to Dismiss at [unnumbered] page 5.) To the
contrary, in this court's view, Plaintiff's allegations that he and other protective custody inmates
were denied outdoor recreation for more than one year on their face imply the existence of an
official jail policy, as opposed to a random, unauthorized or negligent act on the part of a jail official.

Defendants’ argument for dismissal of individual capacity claims against the Sheriff has
traction, however. Liability under 42 U.S.C. § 1983 requires personal involvement; the defendant
must have acted or failed to act with a deliberate or reckless disregard of the plaintiff's
constitutional rights, or others’ actions violating the plaintiff's rights must have. occurred at his
direction or with his knowledge and consent. Black v. Lane, 22 F.3d 1395, 1401 (7th Cir. 1994);

Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). Plaintiff's claims against Sheriff Sheahan


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DUANE ROACH (# 2002-0011028),
Plaintiff,
v. Case No. 03 C 6481
SHERIFF MICHAEL SHEAHAN,

SUPT. HOLMES, CHIEF VIVADO and
JOHN MAUL,

Judge Rebecca Pallmeyer

ewe wwe SS Se SS

Defendants.
MEMORANDUM OPINION AND ORDER

Plaintiff Duane Roach, currently a pretrial detainee at the Cook County Jail, brought this pro
se civil rights action pursuant to 42 U.S.C. § 1983. Roach claims that Defendants, the Sheriff of
Cook County and three Cook County Jail officers, violated his constitutional rights by denying him
outdoor recreation and imposing other unlawful conditions of his confinement. Defendants have
moved to dismiss the complaint pursuant to Feb. R. Civ. P. 12(b)(6). For the reasons stated below,
the motion is granted in part and denied in part.

DISCUSSION
Standard of Review

In applying Rule 12(b)(6), the issue is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support his claims. “This simplified notice
Pleading standard relies on liberal discovery rules and summary judgment motions to define
disputed facts and issues and to dispose of unmeritorious claims.” Swierkiewicz v. Sorema, N.A.,
534 U.S. 506, 512 (2002). All well-pleaded facts are accepted as true, and all reasonable
inferences are drawn in plaintiff's favor. Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163 (1993); Swofford v. Mandrell, 969 F.2d 547, 549 (7th Cir. 1992).

Additionally, as iong 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). Where, as in this case, the plaintiff is not represented by
counsel, the court will employ a more liberal standard of review than would be used where an
attorney prepared the complaint. Haines v. Kemer, 404 U.S. 519 (1972); Whitford v. Boglino, 63
F.3d 527, 535 (7th Cir. 1995).
FACTS

As alleged in his complaint, on July 27, 2002, Plaintiff was assigned to the protective
custody (“PC”) unit of the Cook County Jail (“Jail”). That afternoon, while his unit was on outdoor
recreation, two other PC. inmates engaged in a fightin which one of the two was stabbed.
(Compiaint, page 7.) From that day until August 2, 2003," jail officials suspended all outdoor
recreation for the PC unit. During that year without outdoor recreation, PC inmates, including
Plaintiff, were kept in their cells for 23 hours and allowed outside their cells for only one hour per
day. He claims that “at my age, my body needs to receive oxygen from nature. My back hurt from
not being able to exercise properly; even all my joints as well as my neck are stiff from nat
exercising.” (/d. at 6.) Apart from this stiffness and pain, Plaintiff cites no other injuries. Although
Defendants cited safety concerns as the reason for the recreation suspension, Plaintiff suggests
this is pretextual; he alleges that there are other times when PC inmates are mixed with general
popuiation inmates, such as when being transported to court or to medical clinics in a van, or while

waiting for treatment at Cermak Hospital, the jaii's medical facility. (/d. at 7A.)

‘ Defendants ask the court to strike Plaintiff's response to their motion because he
failed to serve it on them. Plaintiff's failure to serve Defendants is disappointing, but the court
directed the Clerk to serve the response on Defendants weli prior to the date on which their reply
was due. Notably, it is only in reading Plaintiffs response that the court learned that the
suspension of outdoor recreation was terminated, an important matter because Defendants do not
suggest that there is any basis for a permanent prohibition of outdoor recreation. As Defendants
have not been prejudiced, their motion to strike Is denied.

2