Opinion
Cause No. NA 99-148-C H/G.
December 15, 2000.
ENTRY ON PENDING MOTIONS
Plaintiff James Carl Higgs was incarcerated for approximately twelve weeks in 1999 at the Harrison County Jail. He alleges that during that time, defendants violated his federal constitutional rights. The defendants are Harrison County Sheriff William Carver and Sgt. Wolfe, a deputy sheriff of Harrison County.
A number of matters are now before the court. The defendants seek resolution of the claims asserted in the complaint, as amended on August 17, 1999, through the entry of summary judgment. For the reason outlined below, the motion for summary judgment is granted as to all claims asserted in the first amended complaint. Higgs' motion to strike the defendants' reply to his response to the motion for summary judgment is denied because the reply was timely under Local Rule 56.1 in effect at the time defendants filed their reply. Higgs has also submitted an Amended and/or Supplemental Complaint, which the court refers to as the "second amended complaint." Defendants object to Higgs' submission of the second amended complaint. The defendants' objection is overruled. The court considers the claims in the second amended complaint and subjects those claims to screening pursuant to 28 U.S.C. § 1915A(b). There are no viable claims in that complaint, either, so the court enters final judgment in favor of defendants.
I. Second Amended Complaint
The plaintiff submitted his second amended complaint on January 14, 2000. The second amended complaint recites facts and circumstances that Higgs alleged in his first amended complaint. It also adds a number of incidents that occurred at the Jail after he filed the first amended complaint.
The defendants oppose the second amended complaint, first, on the basis that the plaintiff failed to file for leave to amend the complaint as required by Rule 15(a) of the Federal Rules of Civil Procedure. Rule 15(a) provides that leave to amend shall be "freely given when justice so requires," and plaintiff is proceeding without a lawyer.
The defendants assert that Chief Judge Barker, who dismissed a separate December 1999 complaint filed by Higgs, did not grant him leave to file an amended complaint in this action. See NA 99-231-C-B/S, Entry of December 10, 1999. True enough, but this narrow statement is not particularly helpful here. Judge Barker's Entry of December 10, 1999, in NA 99-231-C-B/S stated:
The plaintiff's claims in this action can probably be included among the claims in NA 99-148-C-H/G. This action will not proceed separately, but will instead be dismissed without prejudice. If the plaintiff attempts to expand the claims in NA 99-148-C-H/G in an appropriate manner and is not permitted to do so, he may seek to reopen this action to proceed with viable claims in his complaint.
After an unsuccessful attempt to consolidate NA 99-231-C-B/S with the present action at the end of December 1999, Higgs tendered his second amended complaint in the present action. Thus, Higgs' response to the Entry in NA 99-231-C-B/S, through his motion to expand claims and/or to consolidate, followed by the amended complaint, was a reasonable and diligent response to Judge Barker's entry. The undersigned judge sees no reason not to permit Higgs to add those claims to this case. The defendants argue that they will be prejudiced because of the timing here, but the relatively prompt development of this action in relation to the first amended complaint is not a reason to multiply lawsuits, even though the consequence is to add some claims to this case.
The defendants' motion to strike the second amended complaint is therefore denied. Higgs' motion to consolidate this action with NA 99-231-C-B/S is also denied, and the second amended complaint shall be treated in the following fashion:
First, all portions of the second amended complaint that repeat claims and allegations made in the first amended complaint can be addressed now in terms of the pending motion for summary judgment, which is ripe for decision. Claims asserted in the second amended complaint that were not asserted in the first amended complaint — these being "new claims" — are screened in this Entry as required by 28 U.S.C. § 1915A(b).
II. Motion for Summary Judgment
A. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides that a motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." A "material fact" is one that "might affect the outcome of the suit." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Succinctly stated, "summary judgment serves as the ultimate screen to weed out truly insubstantial lawsuits prior to trial." Crawford-El v. Britton, 523 U.S. 574, 600 (1998). "Summary judgment is appropriate — in fact, is mandated — where there are no disputed issues of material fact and the movant must prevail as a matter of law." Dempsey v. Atchison, Topeka and Santa Fe Ry., 16 F.3d 832, 836 (7th Cir. 1993).
A party moving for summary judgment initially has the burden of showing the absence of any genuine issue of material fact in evidence of record. Adickes v. S.H. Kress Co., 398 U.S. 144 (1970); Schroeder v. Barth, Inc., 969 F.2d 421, 423 (7th Cir. 1992). If the moving party carries this burden, the opposing party then must "go beyond the pleadings" and present specific facts which show that a genuine issue exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Scherer v. Rockwell Int'l Corp., 975 F.2d 356, 360 (7th Cir. 1992). "[A] party opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual, why summary judgment should not be entered." Recklau v. Merchants Nat'l Corp., 808 F.2d 628, 629 n. 4 (7th Cir. 1986), quoting Liberies v. County of Cook, 709 F.2d 1122, 1126 (7th Cir. 1983).
Because the defendants seek the entry of summary judgment, and because Higgs is proceeding without counsel, the notice required by Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982), was issued. Through this notice, Higgs was notified of the nature of the defendants' motion, of the proper manner in which to respond and of the consequences of failing to respond. Higgs responded with his own brief, affidavit, and exhibits.
B. Discussion
Higgs was confined at the Jail for two periods in 1999 — from June 18, 1999 until September 21, 1999, and later, after a transfer to the Indiana Department of Correction ("DOC"), from October 11, 1999 until October 22, 1999. During his initial stay at the Jail, Higgs was a pretrial detainee. In September 1999, Higgs was tried and convicted of residential entry, reckless driving, and being an habitual offender. After sentencing in October, he was again transferred to the DOC.
Higgs brings his claims pursuant to 42 U.S.C. § 1983. Jurisdiction for this action is conferred by 28 U.S.C. § 1343(3). Section 1983 is not itself a source of substantive rights, but it provides "a method for vindicating federal rights elsewhere conferred." Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997), quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979). The first step in any § 1983 claim is to identify the specific constitutional right infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994). Certain of Higgs' claims relate to specific situations, such as his need for legal materials, his interest in the exercise of his religious freedom, and his claim of the denial of equal protection, while the remaining claims relate to either general or specific conditions of his confinement at the Jail.
1. Access to the Courts. Prisoners have a due process right of access to the courts to give them a reasonably adequate opportunity to present their claims. Bounds v. Smith, 430 U.S. 817, 825 (1977). Such access must be adequate, effective, and meaningful. Id. at 822. In Lewis v. Casey, 518 U.S. 343, 351 (1996), the Supreme Court explained that an inmate alleging denial of access to the courts lacks even the standing to assert such a claim in the absence of actual injury, which means an adverse decision in, or inability to litigate, some concrete legal claim:
Because Bounds did not create an abstract, free-standing right to a law library or legal assistance, an inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is sub-par in some theoretical sense. . . . Insofar as the right vindicated by Bounds is concerned, "meaningful access to the courts is the touchstone," Bounds, 430 U.S., at 823 (internal quotation marks omitted), and the inmate therefore must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim.
Id. A failure to identify some detriment that is linked to an adverse decision in, or inability to litigate, the plaintiff's case "is fatal . . . under any standard of sufficiency." Martin v. Davies, 917 F.2d 336, 340 (7th Cir. 1990) (giving as examples of prejudice "court dates missed" and "inability to make timely filings"). The court turns to Higgs' specific claims of denial of access:
(a) On July 13, 1999, Higgs filed a grievance stating that he had inadequate access to law books. He complained that he had been allowed into the law library only once in three weeks, and that when he went to the library, he found it contained only a few helpful resources. According to Sheriff Carver, in response to Higgs' grievances he was allowed "further access to the law library."
(b) On July 30, 1999, Higgs complained of a lack of immediate notary services and of not being allowed to file a complaint in court. He complained that Jail officials procrastinated when he asked for notary services. However, his complaint was notarized on July 30, 1999, and although Higgs complained that officers refused to send his complaint to federal court without the approval of his public defender, his complaint was filed in federal court on August 5, 1999. This is the present action. Higgs has suffered no detriment as a result of when this action was filed or even whether the complaint and associated papers were notarized.
(c) Higgs also complained that Jail officials refused to make extensive copies of legal reference material, and they told him they would provide him with copies only a few pages at a time. Higgs has not identified any adverse decision in or inability to litigate any case, criminal or civil, which resulted from any lack of copies.
Contrary to the Higgs' apparent belief that, because he has a right to file a lawsuit, any conduct he perceives as delaying such a filing is actionable, Higgs could avoid summary judgment only by showing that he suffered detriment from the delay or the impediment. He has not done so, and thus the defendants' summary judgment motion on the denial of access claims must be granted.
2. Religious Diet. Higgs first requested a pork-free diet on July 5, 1999. At that time, however, he gave no reason for his request. The request was denied. On July 30, 1999, Higgs submitted a grievance stating that "the eating of pork is forbiden [sic] by my religion (Islam)." Higgs states that a pork-free diet was approved for him on August 9, 1999. The initial denial of his request for a pork-free diet, and hence the delay in supplying him with a pork-free diet, is the basis of Higgs' claim that the defendants violated his right to the free exercise of his religion.
Higgs claims his rights under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, were violated. That Act, however, is no longer binding on the states and creates no enforceable rights. See City of Boerne v. Flores, 521 U.S. 507, 536 (1997).
With RFRA out of the picture, Higgs' free exercise claim is analyzed under the traditional First Amendment test. The First Amendment broadly provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." The right of inmates to practice their religious beliefs while incarcerated is well-established. See Al-Alamin v. Gramley, 926 F.2d 680 (7th Cir. 1991) (collecting cases).
Higgs' request for a no-pork diet was honored within a few days after he gave a religious reason for his request. Before he supplied that religious reason, Higgs was offered the standard fare. There was no infringement on Higgs' right to religious freedom here. A contrary ruling would have the anomalous result of imposing liability on jail officials who fail to divine an inmate's unexplained reasons for asking for a particular prison diet.
3. Equal Protection. Higgs alleges that he was discriminated against and denied equal protection due to his race. He alleges that white prisoners were given more grievance forms than he was, that white prisoners were allowed more showers, that he was placed in segregation or lockdown for longer times and more frequently than white prisoners, and that the commissary stopped stocking "Magic Shave," a compound used by African-American men who are sensitive to razors.
A policy of deliberate racial discrimination in the administration of a prison violates the equal protection clause of the Fourteenth Amendment. E.g., Black v. Lane, 824 F.2d 561, 562 (7th Cir. 1987); Madyun v. Thompson, 657 F.2d 868, 874 (7th Cir. 1981). Merely to state the claim, however, does not entitle the claimant to a trial on the claim. Roche v. John Hancock Mutual Life Ins. Co., 81 F.3d 249, 253 (1st Cir. 1996) ("Put bluntly, `motions for summary judgment must be decided on the record as it stands, not on a litigant's visions of what the facts might some day reveal.'"), quoting Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994).
"A person bringing an action under the Equal Protection Clause must show intentional discrimination against him because of his membership in a particular class, not merely that he was treated unfairly. . . . `The decisionmaker [must have] selected or reaffirmed a particular course of action at least in part "because of," not merely "in spite of," its adverse effects upon an identifiable group.'" Huebschen v. Dep't of Health and Social Serv., 716 F.2d 1167, 1171 (7th Cir. 1983), quoting Personnel Administrator v. Feeney, 442 U.S. 256, 279 (1979). A required threshold showing for an equal protection claim is that the plaintiff was treated differently than others who are similarly situated. Gehl Group v. Koby, 63 F.3d 1528, 1538 (10th Cir. 1995). If groups "are not similarly situated, there is no equal protection violation." United States v. Woods, 888 F.2d 653, 656 (10th Cir. 1989); see also Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir. 1982) (inconsistency in the operation of a prison does not, in itself, constitute a denial of equal protection).
Although Higgs presents a laundry list of allegations, nothing in what he has offered supports an equal protection claim. Higgs' assertions are the very type of conclusory allegations that the Supreme Court warned against in Lujan v. National Wildlife Federation, 497 U.S. 871 (1990), and they would not allow a jury reasonably to find for the plaintiff. "The object of [Rule 56(e)] is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit." See id. at 888.
4. Conditions of Confinement. Higgs submitted many grievances concerning the conditions of his confinement at the Jail. During his initial period of confinement in the Jail he was a pretrial detainee. "Generally, confinement of pretrial detainees may not be punitive, because `under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt.'" Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995), quoting Bell v. Wolfish, 441 U.S. 520, 535 (1979).
"A condition of confinement may be imposed on a pretrial confinee without violating the Due Process Clause if it is reasonably related to a legitimate and non-punitive goal." Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir. 1996). "However, if the restriction or condition is not reasonably related to a legitimate governmental goal, or is arbitrary, then there is a permissible inference that it is punishment." Hawkins v. Poole, 779 F.2d 1267, 1269 (7th Cir. 1985). Because "punishment" implies an intent to punish, the Seventh Circuit has held that, for conditions of confinement to violate a detainee's rights under the Due Process clause, a culpable mental state is required — either an intent to punish or deliberate indifference to the prisoner's suffering. Antonelli, 81 F.3d at 1428; Salazar v. City of Chicago, 940 F.2d 233, 238 (7th Cir. 1991). Substantively, the deliberate indifference standard which has developed from Estelle v. Chapman, 429 U.S. 97 (1976), and Farmer v. Brennan, 511 U.S. 825 (1994), applies to pretrial detainees. Salazar, 940 F.2d at 240.
A prison official violates the Eighth Amendment (which applies to persons who have been convicted) and the due process clause of the Fourteenth Amendment (which applies to pretrial detainees . . .) when he is deliberately indifferent to a substantial risk of serious harm to an inmate, and a finding of deliberate indifference requires evidence that the official was aware of the risk and consciously disregarded it nonetheless.
Mathis v. Fairman, 120 F.3d 88, 92 (7th Cir. 1997), citing Farmer and Salazar. "Thus, to violate a pretrial detainee's due process rights, prison officials would have to intend for him to die or to suffer grievously, or they would have to act indifferently to a known risk that he would die or suffer grievously." Rapier v. Harris, 172 F.3d 999, 1006 (7th Cir. 1999).
By contrast, when Higgs returned to the Jail in October 1999, he was then a convicted offender. The applicable constitutional provision then was the Eighth Amendment prohibition against cruel and unusual punishments. Pursuant to the Eighth Amendment, prison officials have a duty to "provide humane conditions of confinement; . . . [to] ensure that inmates receive adequate food, clothing, shelter and medical care, and [to] `take reasonable measures to guarantee the safety of the inmates[.]'" Farmer v. Brennan, 511 U.S. 825, 833 (1994), quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984).
A prison official violates the Eighth Amendment when (1) the deprivation alleged is objectively sufficiently serious and (2) the prison official acts with "deliberate indifference." See Wilson v. Seitner, 501 U.S. 294, 297-302 (1991). Deliberate indifference exists when an official "knows of and disregards an excessive risk to inmate health or safety; the 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." Farmer, 511 U.S. at 832. In applying this standard,
an inmate need not show that a prison official acted or failed to act believing that harm would actually befall the inmate; rather it is enough for the inmate to show that the official acted or failed to act despite his knowledge of a substantial risk of serious harm. [Farmer,] 511 U.S. at 842. Moreover, whether a prison official had the requisite knowledge of a substantial risk is a fact question that could be demonstrated by drawing an inference from circumstantial evidence. For example, a fact finder could conclude that the official was aware of the substantial risk from the very fact that the risk was obvious. Id.
Walker v. Peters, No. 97-4058, 2000 WL 1754184, at *3 (7th Cir. Nov. 30, 2000).
On July 30, 1999, Higgs complained of a lack of showers and exercise. At some points during his stay at the Jail, Higgs did not get a shower for four days. Because Higgs has a medical history of Hepatis B and/or C, he suffers from rashes when not allowed to bathe often. He also complains in general of the onerous conditions he encountered at the Jail.
Certain aspects of Higgs' confinement were undoubtedly unpleasant. Nothing in the record, however, suggests that any of the hardships Higgs suffered in the Jail constituted deprivations of basic human needs or "of the minimal civilized measure of life's necessities." See Rhodes v. Chapman, 452 U.S. 337, 347 (1981); see also James v. Milwaukee County, 956 F.2d 696, 699 (7th Cir. 1992) ("not all prison conditions trigger eighth amendment scrutiny — only deprivations of basic human needs like food, medical care, sanitation, and physical safety."); Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988) (ten days in a segregation unit without toilet paper, toothbrush or toothpaste, and in a "filthy, roach-infested cell" did not constitute cruel and unusual punishment). Thus, the conditions at the Jail which Higgs complains of were neither objectively sufficiently serious, nor has Higgs demonstrated that the defendants knew of and disregarded an excessive risk to Higgs' health or safety.
Higgs also asserts that he should be reimbursed for a can of "Magic Shave" allegedly taken from him by Jail officials. The alleged taking of this property can be or could have been addressed under the Indiana Tort Claims Act (Ind. Code § 34-13-3-1, et seq.) and is not actionable under 42 U.S.C. § 1983. See Antonelli v. Sheahan, 81 F.3d 1422, 1430-31 (7th Cir. 1996) (plaintiff's allegation jail staff had taken personal property from him failed to state claim for relief where plaintiff alleged "neither that the deprivations took place according to established state procedure, nor that he lacked an adequate remedy under state law"); accord, Easter House v. Felder, 910 F.2d 1387 (7th Cir. 1990) (en banc). Higgs' allegations indicate that the loss of his property at the Jail was a random occurrence, and he could have pursued remedies under state law.
5. Lockdown and Segregation. At various times during his stay at the Jail, Higgs was kept under lockdown conditions. During some of that time, the lockdown was the result of the activity of a number of prisoners. At other times, it was Higgs' conduct that brought about this restraint. On July 22, 1999, Higgs complained again about being placed on lockdown without written reason. He also complained that he did not have written rules for lockdown. In response, Higgs was told that he was placed on lockdown for "repeatedly threatening and harassing other inmates and has continued on lockdown as he has repeatedly cussed and attempted to intimidate the correction staff." On July 23, 1999, Higgs was provided with a copy of the rules he violated.
Higgs alleges that he was kept in segregation without a hearing. He states that on July 23, 1999, he requested to be given a hearing or to be released from segregation. He denied that he had violated any of the written rules and requested that all charges of rule violations be dropped.
Higgs contends that due process of law entitled him to some procedure before being placed on lockdown or taken from the Jail's general population, including formal charges being brought against him and the opportunity to "defend himself." The Seventh Circuit discussed this issue in Rapier v. Harris, 172 F.3d 999 (7th Cir. 1999), holding that although it is permissible to punish a pretrial detainee for misconduct while in pretrial custody, that punishment can be imposed only after affording the detainee some sort of procedural protection. Id. at 1004.
The analysis in Rapier begins with the "fundamental principle that a person held in confinement as a pretrial detainee may not be subjected to any form of punishment for the crime for which he is charged." Id. at 1002, citing Bell v. Wolfish, 441 U.S. 520, 535 (1979). Nevertheless, a pretrial detainee is subject to certain restrictions on his liberty, and the "government may take measures that are reasonably calculated to effectuate the pretrial detention." Id. at 1003.
The government has an interest in maintaining security and order in its facility, and the regulatory measures imposed by prison officials to ensure the effectiveness of pretrial confinement may be discomforting at times. Id. As long as such measures "are `reasonably related' to the effective management of the confinement facility, they are not considered punishment for the crime that the detainee is suspected to have committed." Id. In addition to regulatory measures, "a pretrial detainee can be punished for misconduct that occurs while he is awaiting trial in a pretrial confinement status." Id., citing Mitchell v. Dupnik, 75 F.3d 517, 524 (9th Cir. 1996), and Collazo-Leon v. United States Bureau of Prisons, 51 F.3d 315, 318 (1st Cir. 1995).
As applied to convicted prisoners, the Due Process Clause guarantees procedural protections before officials impose punishment that is beyond the normally expected incidents of prison life. See Rapier, 172 F.3d at 1004, citing Sandin v. Conner, 515 U.S. 472, 484 (1995) (a prisoner incarcerated as a result of a criminal sentence had no liberty interest in being free from segregated confinement imposed as a disciplinary measure). Pretrial detainees, however, are not similarly situated because they are not under a sentence of confinement. They must be afforded procedural protection before they are "punished" for misconduct while in pretrial custody. Id. at 1004-05.
The problem lies in the fact that the same conduct by a pretrial detainee may be the basis for either non-punitive "regulatory" restrictions or "punitive" sanctions. Id. at 1005. The Seventh Circuit looked to Bell for a methodology for distinguishing between punitive and non-punitive actions against pretrial detainees. The Seventh Circuit found that "a particular measure amounts to punishment when there is a showing of express intent to punish on the part of detention facility officials, when the restriction or condition is not rationally related to a legitimate non-punitive government purpose, or when the restriction is excessive in light of that purpose." Id. at 1005, citing Bell, 441 U.S. at 538.
The defendants do not dispute the fact that Higgs was placed on lockdown and in segregation without any form of process. They argue that Higgs was not punished and that
placing Higgs on lockdown was not excessive in light of the legitimate governmental objective of maintaining order and discipline in the jail. In fact, placing Higgs on lockdown was the least excessive alternative. Clearly, admonishment had not worked prior to this.
Def. Br. at 11.
Defendants' arguments on the merits of Higgs' procedural due process claims essentially present questions of fact about both the defendants' purposes in putting Higgs in lockdown while he was still a pretrial detainee and the reasonableness of those measures. Those issues cannot be resolved on summary judgment.
Defendants also contend they are entitled to qualified immunity even if Higgs' placement in lockdown or in segregation was punitive in nature. Again, from Rapier:
As a general rule, government officials performing discretionary functions are "shielded from liability for civil damages insofar as their conduct does not violate `clearly established' statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Rapier, 172 F.3d at 1006. Rapier was decided on April 19, 1999, a few months before Higgs' confinement in the Jail as a detainee. Rapier clearly established a right on behalf of pretrial detainees not to be placed in lockdown or other segregation for punitive purposes without an opportunity to be heard about the reasons for the action. Qualified immunity is not available to defendants on the procedural due process claims.
Defendants also contend, however, that even if Higgs could establish a violation of his due process rights, no damages would be available as a result of 42 U.S.C. § 1997e(e). That statute provides: "No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." Id. In general, a plaintiff who proves a violation of his constitutional rights is not entitled to damages without proof of actual injury resulting from the violation. Memphis Community School District v. Stachura, 477 U.S. 299, 306-07 (1986). In fact, claims for violations of procedural due process rights are the archetype of claims that require proof of actual injury to support an award of damages. See Carey v. Piphus, 435 U.S. 247, 264 (1978) (reversing award of damages for violation of procedural due process rights without proof of resulting mental or emotional distress). Higgs has not identified any injury other than mental or emotional distress that he might have suffered as a result of the alleged violation of his procedural due process rights. Because Higgs is no longer located at the Jail and faces no serious prospect of a return to lockdown status at the Jail without procedural protections as a pretrial detainee, there also is no prospect of injunctive relief. Because no judicial relief is available at this time, defendants are entitled to summary judgment on this claim.
In Robinson v. Page, 170 F.3d 747 (7th Cir. 1999), the Seventh Circuit stated: "It would be a serious mistake to interpret section 1997e(e) to require a showing of physical injury in all prisoner civil rights suits." Id. at 748. The court further observed that § 1997e(e) applies only to claims for mental or emotional injury. Id.; accord, Rowe v. Shake, 196 F.3d 778, 781-82 (7th Cir. 1999). In Rowe, the court wrote that a deprivation of First Amendment rights, for example, such as prison officials interfering with the receipt of mail, is a cognizable injury. The court wrote that a prisoner is entitled to judicial relief for a violation of his First Amendment rights aside from any physical, mental, or emotional injury he may have sustained. However, the court did not identify what such relief might be, especially in light of Carey v. Piphus and its progeny. See Rowe, 196 F.3d at 781-82. There is no doubt that injunctive relief should be available to enforce federal constitutional rights in the case of ongoing violations, especially where no damages remedy is available as a result of § 1997e(e). See Zehner v. Trigg, 952 F. Supp. 1318, 1331 (S.D. Ind. 1997) (in light of § 1997e(e), remedies other than damages, "especially injunctive relief backed up with meaningful sanctions for contempt — are available to courts to vindicate constitutional rights even where damages may not be available"), aff'd, 133 F.3d 459 (7th Cir. 1997). In Higgs' case, however, this court sees no damages that would be available on his procedural due process claim.
6. Grievances. Higgs filed numerous grievances on diverse subjects while confined in the Jail. Although the record shows that on some occasions his concerns were addressed, he argues that the grievance process at the Jail was inadequate. Higgs' claim is legally insufficient, whether he was satisfied with the responses or not. As explained in Antonelli v. Sheahan, 81 F.3d 1422, 1430-31 (7th Cir. 1996):
[A]ny right to a grievance procedure is a procedural right, not a substantive one. Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982) (citing Shango v. Jurich, 681 F.2d 1091, 1101-02 (7th Cir. 1982)). Accordingly, a state's inmate grievance procedures do not give rise to a liberty interest protected by the Due Process Clause. Id. Moreover, Mr. Antonelli's invocation of the judicial process indicates that the prison has not infringed his First Amendment right to petition the government for a redress of grievances. Id. at 10 (citing Cruz v. Beto, 405 U.S. 319, 321 (1972)); see also Flick v. Alba, 932 F.2d 728 (8th Cir. 1991) (per curiam) (citing Azeez) (footnote omitted).
Higgs' situation is indistinguishable. He filed written grievances, apparently using the appropriate procedures. Those procedures — which Higgs was required by 42 U.S.C. § 1997e(a), the Civil Rights of Institutionalized Persons Act, to exhaust — did not all result in resolutions that were satisfactory to Higgs. There appear to be various reasons for his dissatisfaction with the responses. Because Higgs had no expectation of a particular outcome of his grievances, however, there is no viable claim that can be vindicated through § 1983. Juriss v. McGowan, 957 F.2d 345, 349 n. 1 (7th Cir. 1992) (without a predicate constitutional violation one cannot make out a prima facie case under § 1983).
7. Dental Care. On July 20, 1999, a dentist examined Higgs and recommended that he have one or two teeth removed. Nothing in the dentist's notes indicates that Higgs' dental needs required emergency treatment. On July 30, 1999, Higgs complained of pain and that he wanted to have two teeth extracted. On August 23, 1999, the dentist saw Higgs again and pulled two teeth. Higgs contends that the length of time between the dentist's recommendation and treatment is evidence of indifference to his health.
Prison officials have a duty to ensure that inmates receive adequate medical care. Farmer, 511 U.S. at 832. To state a claim under § § 1983 for medical mistreatment or denial of medical care, a prisoner must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976); Farmer, 511 U.S. at 835. Deliberate indifference exists only when an official "knows of and disregards an excessive risk to an inmate's health; the 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." Id. (construing Estelle). A serious medical need is defined as one that a physician has diagnosed as requiring treatment, or one that is so obvious that even a layperson would easily recognize the necessity for a doctor's attention. Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997).
The most serious allegation in plaintiff's complaint is that he suffered a delay in receiving treatment for his bad teeth. In Langston v. Peters, 100 F.3d 1235, 1240-41 (7th Cir. 1996), the Seventh Circuit agreed with the Eighth Circuit that an inmate who complains that delay in medical treatment rose to a constitutional violation "must place verifying medical evidence in the record to establish the detrimental effect of delay in medical treatment to succeed." Id., quoting Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th Cir. 1995), and citing Martin v. Tyson, 845 F.2d 1451, 1458 (7th Cir. 1988) (rejecting Eighth Amendment claim for delay in treatment in part because prisoner failed to produce any evidence of injury caused by the delay).
Even if Higgs' need for dental intervention may indeed have been a serious medical need at some point, due at least to the alleged degree and duration of the pain he suffered, Higgs has not shown a deliberate indifference on the part of the defendants in responding to that need or that he suffered injury as a result of the time between dental appointments. The record does not establish when Higgs first complained of tooth pain, however, on a June 19, 1999, Medical Questionnaire, Higgs responded "no" to the question asking whether he had "any type of painful dental problems."
Higgs was seen by a dentist within a month of his incarceration. Then, within approximately three weeks of that first appointment, the recommended, but non-emergency, treatment was provided. Those facts simply cannot support an inference of deliberate indifference to Higgs' dental needs. A prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement "only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Farmer, 511 U.S. at 847.
Summary judgment is, in a rough sense, "the `put up or shut up' moment in a lawsuit, when a party must show what evidence [he] has that would convince a trier of fact to accept [his] version of events." Schacht v. Wisconsin Dep't of Corrections, 175 F.3d 497, 504 (7th Cir. 1999). Although Higgs has raised a number of claims, he has failed to come forward with evidence sufficient to allow a reasonable jury to find in his favor on those claims. Higgs cannot point to any disputed issues of material fact, so the defendants must prevail as a matter of law. See Dempsey, 16 F.3d at 836. The defendants' motion for summary judgment on the claims common to the first and second amended complaints is granted.
III. New Claims in the Second Amended Complaint
Higgs presents a number of claims in the second amended complaint that are not encompassed in his first amended complaint. These new claims are therefore not extinguished by the summary judgment ruling in Part II. A description and discussion of the new claims follows:
1. On September 20, 1999, Higgs complained of chest pain and was taken to the Harrison County Hospital, where it was determined that he should be transported to another hospital for more tests. Higgs was taken to Wishard Hospital in Indianapolis, Indiana. Higgs claims he should have been taken to a closer hospital, Jewish Hospital in Louisville, Kentucky. Higgs asserts that the Sheriff's decision to transfer him to Wishard Hospital was an "unlawful abuse of authority" because the Sheriff allegedly based that decision on security needs rather than on medical needs. (The Indiana Department of Correction apparently could provide security at Wishard Hospital in Indianapolis, and the court assumes that interstate travel with an inmate posed some additional complications for the Sheriff.)
Higgs does not allege that he suffered any harm from being transferred to a hospital in Indianapolis rather than one in Louisville, nor does he contend that he was denied any necessary medical treatment at Wishard Hospital. Under the Constitution, Higgs was not entitled to specific treatment or even to the best care, only to reasonable measures to meet a substantial risk of serious harm. Forbes v. Edgar, 112 F.3d 262, 266-67 (7th Cir. 1997). See also Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996) ("the Constitution is not a medical code that mandates specific medical treatment"). On this point, Higgs has failed to state a claim for which relief can be granted.
2. Higgs alleges that between October 11, 1999, through October 22, 1999, while confined at the Jail after his conviction, he was placed in segregation where he was not given recreation privileges, not allowed to watch television, was allowed showers only "at the whim of staff," and had to use insufficiently hot water from the faucet for his coffee, tea and soups. As discussed above in relation to Higgs' first amended complaint, none of these temporary conditions of confinement constituted deprivations of basic human needs or "of the minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Higgs also alleges that he was denied due process when he was kept in this isolation for two weeks without a hearing or allegations of rule violations. This claim has no merit because, as a convicted offender, Higgs had no liberty interest in remaining outside segregated housing. Sandin v. Conner, 515 U.S. 472, 485-86 (1995). Higgs' conclusory allegation that being held in segregation for a matter of days without a hearing "was done to punish [him] for filing a previous lawsuit against the Sheriff and to discriminate against [him] because of [his] race," must also be dismissed. Higgs has not alleged a chronology of events from which retaliation can be inferred, cf. Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir. 2000), nor has he alleged any facts supporting his theory of racial bias. See Jackson v. E.J. Brach Corp., 176 F.3d 971, 978 (7th Cir. 1999) (a complaint that consists of "conclusory allegations unsupported by factual assertions fails even the liberal standard of Rule 12(b)(6)"), quoting Palda v. General Dynamics Corp., 47 F.3d 872, 875 (7th Cir. 1995). Thus, on this point also, Higgs has failed to state a claim upon which relief can be granted.
3. Higgs alleges that incoming non-legal mail consisting of three letters from a "lady friend" was not forwarded to him by the Jail staff while he was confined at the Reception Diagnostic Center near Indianapolis for eighteen days in September and October 1999, and that once he returned to the Jail, those letters were not promptly delivered to him. Higgs alleges that the "withholding" of this mail was deliberate and was done for the purpose of discriminating against him on the basis of race. "Allegations of sporadic and short-term delays in receiving mail are insufficient to state a cause of action grounded upon the First Amendment." Zimmerman, 226 F.3d at 573, citing Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999), and Sizemore v. Williford, 829 F.2d 608, 610 (7th Cir. 1987). Furthermore, once again, Higgs' conclusory allegation that his mail was withheld because of his race, without any supporting factual assertions, is not enough to state an equal protection claim. Jackson, 176 F.3d at 978. Higgs' mail handling claims are dismissed for failure to state a claim.
4. Higgs' final claim is that he was deprived of his property, including money, legal and religious materials, glasses, personal letters, clothes and hygiene items, while he was in the custody of the DOC for eighteen (18) days and that a watch worth $150.00 had been broken while in the Sheriff's control. As discussed in footnote 1 above, Higgs' claims of temporarily withheld or damaged property are not actionable here.
None of the "new" claims asserted in the second amended complaint are legally sufficient. Accordingly, having granted the defendants' motion for summary judgment on the claims asserted in the first amended complaint, final judgment shall be granted in favor of the defendants on all of the plaintiff's claims. Judgment consistent with this Entry shall now issue.
So ordered.
FINAL JUDGMENT
The court, having this day made its Entry, and having directed the entry of final judgment, it is hereby ORDERED, ADJUDGED, AND DECREED that plaintiff James Carl Higgs take nothing by his complaint against defendants Sheriff William Carver and Sergeant Wolfe, and that this action is DISMISSED WITH PREJUDICE. The costs of this action are assessed against the plaintiff.