Miniero v. Killeen

Full title: DOMENICK MICHAEL MINIERO, Plaintiff, v. VAUGHN KILLEEN, A.C.S., MICHAEL…

Court: United States District Court, D. Idaho

Date published: Jan 3, 2005

Case No. CV-04-616-S-LMB (D. Idaho Jan. 3, 2005)

Opinion

Case No. CV-04-616-S-LMB.

January 3, 2005

INITIAL REVIEW ORDER

LARRY BOYLE, Magistrate Judge

Plaintiff's Complaint was conditionally filed on December 10, 2004. The Court now reviews the Complaint to determine whether summary dismissal is appropriate. See 28 U.S.C. §§ 1915(e) and 1915A. Having reviewed the record, and otherwise being fully informed, the Court enters the following Order.

I. REVIEW OF COMPLAINT

A. Background

Petitioner is a pretrial detainee housed at the Ada County Jail. He asserts that it is a constitutional violation for his jailers to require him to perform daily cleaning chores in the jail's community areas or to punish him for refusing to do so.

B. Standard of Law

The Court is required to review prisoner and in forma pauperis complaints seeking relief against a governmental entity or an officer or employee of a governmental entity to determine whether summary dismissal is appropriate. 28 U.S.C. §§ 1915(e) and 1915A. The Court must dismiss a complaint or any portion thereof which states a frivolous or malicious claim, which fails to state a claim upon which relief may be granted, or which seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A.

Because pretrial detainees are presumed innocent, they may not be punished while incarcerated. Bell v. Wolfish, 441 U.S. 520, 535 (1979). It is considered punishment if a jailer requires a pretrial detainee to perform work other than general housekeeping chores, or if the jailer places a pretrial detainee in administrative segregation for refusing to do such work. Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992). However, requiring a pretrial detainee to perform general housekeeping chores is not deemed punishment. Bijeol v. Nelson, 579 F.2d 423, 425 (7th Cir. 1978). In Bijeol, the court found acceptable the following chores that pretrial detainees were required to take turns performing in the common areas for 45 to 120 minutes per day: dusting, vacuuming, emptying ashtrays, setting up and cleaning tables for meals, cleaning windows, cleaning marks off the walls, and keeping books in order. Id. at 424.

C. Discussion

In this case, without more, Plaintiff's claims do not state a constitutional violation because he appears to be complaining about having to do general housekeeping chores like those in Bijeol. Plaintiff shall be given thirty (30) days in which to amend his Complaint to include more specific allegations of the types of work Plaintiff is required to perform to show that the work is more than general household chores. Alternatively, Plaintiff may file a notice of voluntary dismissal. If Plaintiff files an amended complaint upon which he can proceed, the Court will consider his request for appointment of counsel at that time.

The Court will presently deem Plaintiff's Motion to Proceed in Forma Pauperis moot. If Plaintiff decides to proceed with this action, and the Court grants the Motion to Proceed in Forma Pauperis, the Ada County Jail shall be required to deduct the sum of $150.00 from Plaintiff's jail trust account in increments to forward to the Clerk of Court to pay the filing fee.

II. ORDER

NOW THEREFORE IT IS HEREBY ORDERED that Plaintiff shall have thirty (30) days after entry of this Order in which to amend his Complaint or to file a notice of voluntary dismissal.

IT IS FURTHER HEREBY ORDERED that Plaintiff's Motion to Proceed in Forma Pauperis (Docket No. 1) is MOOT. The Court shall reconsider this Motion if Plaintiff files an amended complaint.