Norwood v. Carter

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

RICKY NORWOOD, Jr., #2206 4035, )

)

Plaintiff, )

)

vs. ) Case No. 22-cv-02862-JPG

)

CLAY CARTER, )

BRIAN CARTER, )

TROY REED, )

KEVIN KRIPPS, )

KEEFE COMPANY, )

and IC SOLUTIONS, )

)

Defendants. )

MEMORANDUM AND ORDER

GILBERT, District Judge:

Plaintiff Ricky Norwood, Jr., an inmate in Marion County Law Enforcement Center,

brings this pro se action for deprivations of his constitutional rights pursuant to 42 U.S.C.

§ 1983. Plaintiff complains about negligent safety protocols, price gouging, false advertising,

mishandling of inmate trust fund accounts, and mishandling of grievances at the Jail. (Doc. 1).

He seeks monetary relief. Id. at 10.

This case is now before the Court for a preliminary review of the Complaint pursuant to

28 U.S.C. § 1915A, which requires the Court to screen prisoner complaints and filter out non-

meritorious claims. 28 U.S.C. § 1915A(a). Any portion of the complaint that is legally frivolous

or malicious, fails to state a claim for relief, or requests money damages from an immune

defendant must be dismissed. 28 U.S.C. § 1915A(b). At this juncture, the factual allegations are

liberally construed. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

The Complaint

Plaintiff complains about five aspects of his confinement at Marion County Law

Enforcement Center, and his complaints are summarized below. (Doc. 1, pp. 7-9).

First, Plaintiff alleges that the Jail is not equipped with carbon monoxide detectors or a

proper fire alarm system. When he filed grievances to address his concerns, Brian Carter said

the systems were working “as far as he knew,” Troy Reed said they were “still working on the

issue,” and Kevin Kripps ignored his grievances altogether. Plaintiff brings a claim against these

defendants for negligence. Id. at 7.

Second, Plaintiff was informed by Brian and Clay Carter that the Jail would be switching

to a new vendor for commissary supplies after Keefe Company notified the Jail of its decision to

increase prices for commissary items in a letter dated August 15, 2022. When no new vendor

was selected, Plaintiff complained that excessive commissary prices violated Jail Administrative

Code 701.250, providing that commissary prices should not exceed prices of local stores. Troy

Reed responded to this grievance, by stating that he would speak with Keefe Company. Plaintiff

then filed a grievance with the sheriff and received no response. Plaintiff brings a claim against

the defendants for price gouging. Id.

Third, IC Solutions, the Jail’s phone provider, has increased prices for phone calls by one

cent ($0.01). In August 2022, IC Solutions charged $3.48 for phone calls. Now, calls cost

$3.49. Plaintiff argues that calls should really only cost $3.45. In response to his grievance

about the issue, Clay Carter agreed to contact IC Solutions. When Plaintiff appealed to Troy

Reed and Kevin Kripps, he received no response. Plaintiff characterizes this as false advertising.

Id. at 8.

Fourth, Plaintiff maintains that fifteen percent of profits on sales from commissary and

calls are set aside to “buy things for the jail.” Id. Plaintiff submitted a grievance asking that

these funds be used for inmate recreation (i.e., televisions and board games), education,

grooming supplies, and religious items. Plaintiff claims the funds have instead been used to

purchase additional cleaning supplies, bed linens, and housing materials. Plaintiff characterizes

this as a mishandling of inmate trust funds. Id.

Finally, Plaintiff complains that Troy Reed and Kevin Kripps have not responded to his

grievances for two months. He brings a claim against them for “abridging the grievance

process.” Id. at 8.

Plaintiff asserts the following claims against Defendants in the pro se Complaint:

Count 1: Negligence claim against Defendants for failing to install carbon

monoxide detectors and a proper fire alarm system at the Jail.

Count 2: Price gouging claim against Defendants for failing to use a new

commissary supplier, after learning that Keefe Company intended to

increase the prices of commissary items on or around August 2022, in

violation of Jail Administrative Code 701.250.

Count 3: False advertising claim against Defendants for charging $3.49 for phone

calls when inmates were previously charged $3.48 and should actually be

charged $3.45.

Count 4: Inmate trust fund abuse claim against Defendants for using fifteen percent

of profits from commissary sales and phone calls to purchase cleaning

supplies, bed linens, and housing materials for the Jail instead of using

those funds as Plaintiff requested for education, recreation, religious

exercise, and grooming supplies.

Count 5: Grievance mishandling claim against Troy Reed and Kevin Kripps.

Any other claim not addressed herein is dismissed without prejudice as inadequately pled.1

1 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (an action fails to state a claim for relief if it

does not plead “enough facts to state a claim to relief that is plausible on its face”).

Discussion

Upon careful review of the Complaint, the Court deems it appropriate to exercise its

authority under § 1915A and dismiss this action as being frivolous, meritless, and for failure to

state a claim for relief. An action or claim is frivolous if “it lacks an arguable basis either in law

or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective

standard that refers to a claim that any reasonable person would find meritless. Lee v. Clinton,

209 F.3d 1025, 1026-27 (7th Cir. 2000). An action fails to state a claim upon which relief can be

granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.”

Twombly, 550 U.S. at 570. The claim of entitlement to relief must cross “the line between

possibility and plausibility.” Id. at 557.

Count 1

Count 1 stems from allegations of negligence for failing to install carbon monoxide

detectors or a proper fire alarm system at the Jail. Negligence does not, and cannot, support a

claim for unconstitutional conditions of confinement under 42 U.S.C. § 1983. The Eighth

Amendment prohibits cruel and unusual punishment meted out against convicted persons, and

the Due Process Clause of the Fourteenth Amendment prohibits all punishment against pretrial

detainees. Smith v. Dart, 803 F.3d 304, 309 (7th Cir. 2015); Antonelli v. Sheahan, 81 F.3d 1422,

1427 (7th Cir. 1996) (citing Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979)). Negligence does

not support a claim under the Eighth or Fourteenth Amendment.

This claim fails for another reason. Section 1983 provides that “[e]very person who,

under color of any statute, ordinance, regulation, custom, or usage, of any State” deprives a

person of his federal constitutional or statutory rights shall be liable in an action at law.

42 U.S.C. § 1983. To state a claim under § 1983, the plaintiff must establish that he suffered a

deprivation of his federal rights by a defendant who acted under color of state law. Id.;

McNabola v. Chicago Transit Auth., 10 F.3d 501, 513 (7th Cir. 1993). Liability requires

involvement in the constitutional deprivation. Wilson v. Civil Town of Clayton, 839 F.2d 375,

384 (7th Cir. 1988). Plaintiff must set forth allegations suggesting that each individual defendant

directly participated in a deprivation of his constitutionally or federally protected rights. Pepper

v. Village of Oak Park, 430 F.3d 809, 810 (7th Cir. 2005) (citations omitted). A “causal

connection” or an “affirmative link” between the misconduct and the official sued is necessary.

Rizzo v. Goode, 423 U.S. 362, 371 (1976). Here, Plaintiff merely states that he asked about the

status of the carbon monoxide detectors and fire alarm systems at the Jail; he does not allege or

suggest the any defendants played a role in the decision about these systems or their

maintenance. For these reasons, Count 1 cannot proceed and shall be dismissed with prejudice

against the defendants.

Counts 2, 3, and 4

Counts 2, 3, and 4 arise from concerns about the cost of commissary items and phone

calls and the use of profits derived from their sales to make purchases for inmate supplies and

services. Plaintiff’s disagreement about the cost of these items or use of related profits falls far

short of stating a claim for any constitutional deprivation under Section 1983.

Plaintiff points to a Jail regulation that limits commissary prices to equivalent rates

charged for the same items at local stores, i.e., Jail Administrative Code 701.250. However, he

offers no single example of price increases the exceed local rates. And, Illinois state statutes

permit jails to recoup costs for expenses incurred from incarceration. See 730 ILCS 125/20(a)

(county board may require convicted persons confined in its jail to reimburse the county for

expenses incurred by their incarceration to the extent of their ability to pay). The Jail can charge

for commissary items. If Plaintiff disagrees with the cost of any items, he can choose not to

purchase them.

The same can be said of charges for phone calls. Relevant state regulations do not

specify how much county jails can charge, instead stating: “[D]etainees may be required to bear

the expense of any telephone calls they make or to place only collect calls.” 20 ILL. ADM. CODE

701.190 (d). The Court is unaware of a federal regulation or state statute that caps the amount

county jails can charge for phone calls. The Seventh Circuit has held that telephone rates, even

high rates, do not violate the First Amendment. Arsberry v. Illinois, 244 F.3d 558, 564 (7th Cir.

2001). The same case foreclosed relief based on telephone rates under the Takings Clause or the

Due Process clause. Id. at 564-66. Plaintiff has no constitutional claim based on the rate for

telephone service.

Finally, Plaintiff’s disagreement with the manner in which the Jail spends its profits from

commissary and phone sales is just that – a difference of opinion with Jail administrators. He

offers no allegations which remotely suggest the Jail misused his trust fund account or inmate

trust funds, generally, in a manner that implicates the Constitution or that any defendants were

personally involved in the misuse of funds. Accordingly, Counts 2, 3, and 4 shall be dismissed

with prejudice.

Count 5

Count 5 stems from the mishandling of grievances at the Jail. Plaintiff alleges that Troy

Reed and Kevin Kripps did not respond to his grievances during a two-month period. This gives

rise to no constitutional claim because the Constitution does not require jails to provide a

grievance procedure in the first place. Moreover, the creation of this procedure does not give

rise to a constitutionally protected right. Daniel v. Cook County, 833 F.3d 728, 736 (7th Cir.

2016); Owens v. Hinsley, 635 F.3d 950-, 953 (7th Cir. 2011); Grieveson v. Anderson, 538 F.3d

763, 772-73 (7th Cir. 2008). Count 5 shall also be dismissed with prejudice.

Disposition

IT IS ORDERED that the Complaint (Doc. 1) is DISMISSED with prejudice against

ALL DEFENDANTS as factually and/or legally frivolous and for failure to state a claim.

Plaintiff’s claims against ALL DEFENDANTS pursuant to 42 U.S.C. § 1983 are DISMISSED

with prejudice. Plaintiff is ADVISED that the dismissal counts as one of his three allotted

“strikes” under the provisions of 28 U.S.C. § 1915(g). Plaintiff is also ADVISED that his

obligation to pay the filing fee for this action was incurred when he filed the action; the filing fee

of $350.00 remains due and payable. 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464,

467 (7th Cir. 1998).

If Plaintiff wishes to appeal this Order, he may file a notice of appeal with this Court

within thirty (30) days of the entry of judgment. FED. R. CIV. P. 4(A)(4). If Plaintiff does choose

to appeal, he will be liable for the $505.00 appellate filing fee irrespective of the outcome of the

appeal. See FED. R. APP. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724,

725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien, 133 F.3d at

467. Finally, if the appeal is found to be nonmeritorious, Plaintiff may incur a “strike.” A

proper and timely motion filed pursuant to Federal Rule of Civil Procedure 59(e) may toll the 30-

day appeal deadline. FED. R. APP. P. 4(a)(4). A Rule 59(e) motion must be filed no more than

twenty-eight (28) days after the entry of the judgment, and this 28-day deadline cannot be

extended. The Clerk shall CLOSE THIS CASE and enter judgment accordingly.

IT IS SO ORDERED.

DATED: 8/23/2023 s/J. Phil Gilbert

J. PHIL GILBERT

United States District Judge