Dewey v. Hershberger

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

CHARLES LEE DEWEY, III,

Plaintiff,

v. CAUSE NO. 1:24-CV-508-PPS-AZ

TROY HERSHBERGER, ALLEN CNTY

BOARD OF COMMISSIONERS, and

WARDEN,

Defendants.

OPINION AND ORDER

Charles Lee Dewey, III, a prisoner without a lawyer, filed a complaint about the

conditions of confinement at the Allen County Jail and his ability to practice his religion

when he was confined there from March 4, 2024, through November 18, 2024. [ECF 1.]

“A document filed pro se is to be liberally construed, and a pro se complaint, however

inartfully pleaded, must be held to less stringent standards than formal pleadings

drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and

citations omitted). Nevertheless, under 28 U.S.C. § 1915A, I must review the merits of a

prisoner complaint and dismiss it if the action is frivolous or malicious, fails to state a

claim upon which relief may be granted, or seeks monetary relief against a defendant

who is immune from such relief.

Conditions of Confinement

Dewey was held in the Allen County Jail for eight months. He says that during

that time, he dealt with medically inadequate food, “unwholesome” food, inadequate

recreation, inadequate bedding, inadequate sanitation, and increased violence. [ECF 1 at

2.] Dewey was a pretrial detainee when he entered the jail on March 4, 2024, but his

status changed on September 6, 2024, when he was sentenced on one of his criminal

cases. State v. Dewey, No. 02D05-2012-F1-000024 (Allen Super. Ct. decided Sept. 6, 2024).

Therefore, both Fourteenth and Eighth Amendment standards apply to this case at

different points. See Miranda v. Cnty. of Lake, 900 F.3d 335, 352 (7th Cir. 2018). But for

simplicity, I will analyze the claims under the Fourteenth Amendment because it is an

easier standard for a plaintiff to satisfy.

As a pretrial detainee, Dewey is protected under the Fourteenth Amendment

from being held in “conditions that ‘amount to punishment.’” Mulvania v. Sheriff of Rock

Island Cnty., 850 F.3d 849, 856 (7th Cir. 2017) (quoting Bell v. Wolfish, 441 U.S. 520, 535

(1979)). Conditions may amount to punishment if, as a result, inmates are denied “the

minimal civilized measure of life’s necessities,” which include “reasonably adequate

ventilation, sanitation, bedding, hygienic materials, and utilities.” Hardeman v. Curran,

933 F.3d 816, 820 (7th Cir. 2019) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981) and

Gray v. Hardy, 826 F.3d 1000, 1005 (7th Cir. 2016)). The Fourteenth Amendment also

requires that pretrial detainees be reasonably protected from a substantial risk of

serious harm. Thomas v. Dart, 39 F.4th 835, 841 (7th Cir. 2022).

To state a Fourteenth Amendment claim against an individual defendant, a

pretrial detainee must allege the defendant “did not take reasonable available measures

to abate the risk of serious harm to [plaintiff], even though reasonable officers under the

circumstances would have understood the high degree of risk involved, making the

consequences of the defendants’ conduct obvious.” Pittman ex rel. Hamilton v. Madison

Cnty., Ill., 108 F.4th 561, 572 (7th Cir. 2024) (emphasis omitted). “A jail official’s response

to serious conditions of confinement is objectively unreasonable when it is ‘not

rationally related to a legitimate nonpunitive governmental purpose’ or is ‘excessive in

relation to that purpose.’” Mays v. Emanuele, 853 F. App’x 25, 27 (7th Cir. 2021)

(quoting Kingsley v. Hendrickson, 576 U.S. 389, 398 (2015)). In determining whether an

action or condition is reasonable or whether it amounts to punishment, I must consider

the “totality of facts and circumstances.” Mays v. Dart, 974 F.3d 810, 819 (7th Cir. 2020).

Of note, “negligent conduct does not offend the Due Process Clause,” and thus

allegations of negligence, even gross negligence, do not state a Fourteenth Amendment

claim. Miranda, 900 F.3d at 353.

First, Dewey alleges that he is gluten intolerant and “several times” he was

served medically inadequate food, which caused him pain, digestive issues, and bloody

stools as well as depression. [ECF 1 at 2.] He grieved this issue, but his food was almost

never corrected. He alleges he was forced to choose between eating medically

inadequate food or not eating. In addition, he says that sometimes food showed up

cold, contaminated, or otherwise “unwholesome.” [Id.]

Dewey does not raise a constitutional claim regarding the food he was served at

the jail. The Fourteenth Amendment guarantees him life’s necessities. But having a

problem with food “several times” over an eight-month period does not plausibly

allege that his overall diet was inadequate or threatened his health.

Dewey next complains that he was unable to get sufficient exercise. He says the

inmates on his unit were let out of their cells each day for four hours, in two-hour time

blocks, to use the dayroom. But he says the dayroom was too crowded to exercise in

and the rules prohibit the inmates from running or playing in the dayroom. In addition,

twice a week they received recreation, but he complains that the rec room was just an

empty room with no activities or equipment, though a basketball was added in October

2024. This has caused him high stress levels, leading to stress headaches, loss of sleep,

anxiety, and depression. He says that due to no vigorous exercise, he has suffered

“physical unwellness.” [ECF 1 at 2.]

Dewey has not alleged that the opportunities provided for physical activity at the

Allen County Jail reached the level of a constitutional concern, which requires that the

condition of confinement “posed an objectively serious threat to [his] health.” Mays, 853

F. App’x at 26. Specifically, twice a week he had the opportunity for vigorous exercise

during recreation, even if the conditions were not ideal. Then, in his daily time out of

his cell, he does not allege that he was denied all ability to exercise, just that he could

not exercise vigorously. Cf. Smith v. Dart, 803 F.3d 304, 313 (7th Cir. 2015) (“As the

district court noted, there is a significant difference between a lack of outdoor recreation

and an inability to exercise. Smith does not allege that his movements are restricted to

the point that he is unable to exercise inside his cell or in jail common areas . . . .

Accordingly, we agree with the district court that Smith’s allegation that he ‘can[‘]t go

outside [for] recreation’ fails to state a sufficiently serious constitutional deprivation.”

(alterations in original)). Dewey’s allegation that these conditions caused him “physical

unwellness” is too vague to allow me to reasonably infer that he was harmed by these

conditions.

Dewey alleges he did not receive “reasonably adequate bedding.” [ECF 1 at 2.]

He alleges the bedding caused him severe back pain and stress. He describes the bed

mats as “thin” and “chintzy.” [Id. at 3.] He asserts that, although the mats may be

adequate for a short time, they are not adequate for long-term usage.

Pretrial detainees are entitled to reasonably adequate bedding as part of the

minimal civilized measure of life’s necessities guaranteed by the Fourteenth

Amendment. But Dewey’s complaints about the quality of the mattress do not trigger

the Fourteenth Amendment. Courts have consistently held that uncomfortable

mattresses do not violate the Constitution. See Arringon v. Donathan, No. 22-4081, 2022

WL 4466714, at *2 (C.D. Ill. Sept. 26, 2022) (requiring civil detainee who was 6 feet tall

and 260 pounds to sleep on narrow bed was not a sufficiently serious condition under

the Fourteenth Amendment); Marshall v. Nickel, No. 06-C-617-C, 2007 WL 5582139, at *9

(W.D. Wis. Jan. 29, 2007) (“The use of an uncomfortable mattress for several months is

not sufficient to state a claim under the Eighth Amendment.”), on reconsideration in part,

No. 06-C-617, 2007 WL 5614091 (W.D. Wis. Mar. 12, 2007); Jenkins v. Miller, No. 17-cv-

25-bbc, 2018 WL 6788527, at *9 (W.D. Wis. Dec. 26, 2018) (collecting cases) (“Even

though courts have found that a lack of bedding for more than a week may qualify as

the denial of a basic life necessity, they have not found that the constitutional protection

applies to uncomfortable beds or mattresses.” (citations omitted)). To come out

differently here, Dewey needs to plausibly allege that the mattress “posed an

objectively serious risk of harm.” Roundtree v. Dart, No. 23-2576, 2025 WL 401207, at *3

(7th Cir. Feb. 5, 2025). Back pain from an uncomfortable mattress does not reach this

level.

Dewey alleges overcrowding and understaffing at the Allen County Jail has led

to sanitation issues, such as stained beds, moldy air vents, flying/biting bugs coming

from the shower, and scum growing in the toilets. He alleges that on March 8, 2024, he

developed a rash from these conditions and experienced pain and irritation.

These conditions do not allow me to reasonably infer that the sanitation at the jail

fell to a constitutionally significant level. The only harm Dewey alleges from these

conditions is a one-time rash, but the link between the rash and the conditions alleged

are not obvious and so he must provide a plausible basis for his belief that the rash was

caused by the poor sanitation or bugs. A complaint must contain sufficient factual

matter to “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007). “Factual allegations must be enough to raise a right to

relief above the speculative level, on the assumption that all the allegations in the

complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555 (quotation marks,

citations, and footnote omitted). In addition, pest infestations, like the one alleged here,

can become a constitutional violation if they present a substantial risk of harm to the

inmate, by, for example, raising sanitation concerns or physically harming the inmate.

But Dewey provides no detail about the extent of the infestation or its impact on him.

See, e.g., Smith, 803 F.3d at 312 (“[A]lthough he alleged that mice and cockroaches are

present in the jail, he did not allege facts from which one could infer that the degree of

infestation rose to the level of constitutional concern.”). These sanitation issues do not

state a claim for relief.

Dewey further alleges that overcrowding led to increased violence. He says that

on July 10, 2024, he was attacked by an inmate, and on May 13, 2024, he was sexually

assaulted by another, causing him physical and emotional trauma, anxiety, and

depression.

The Fourteenth Amendment’s protection includes the right to be protected from

harm. To state a plausible claim for failure to protect, a plaintiff must allege:

(1) the defendant made an intentional decision regarding the conditions of

the plaintiff’s confinement; (2) those conditions put the plaintiff at

substantial risk of suffering serious harm; (3) the defendant did not take

reasonable available measures to abate the risk, even though a reasonable

officer in the circumstances would have appreciated the high degree of risk

involved, making the consequences of the defendant’s inaction obvious;

and (4) the defendant, by not taking such measures, caused the plaintiff’s

injuries.

Thomas, 39 F.4th at 841.

Dewey does not identify any defendant who could be held liable for the attacks,

which requires, at a minimum, that “a specific defendant was on notice of a serious risk

of harm to the detainee.” Thomas, 39 F.4th at 841 (citation and internal quotation marks

omitted). Instead, it appears that Dewey is alleging that the attacks resulted from

overcrowding at the Allen County Jail. However, he has not alleged any facts that show

the Allen County Jail was unconstitutionally overcrowded from March 4, 2024, through

November 18, 2024. Nor has he provided a reasonable basis to infer that overcrowding

was a cause of the attacks. This claim may not proceed.

Religion Claims

Dewey alleges he was denied the ability to practice his religion, which he

identified as “Norse Runes.” [ECF 1 at 3.] Relatedly, he alleges the clock in his block

was broken and the jail refused to fix it. As a result, he missed the official prayer time

set by the chaplain.

Inmates retain their right under the First Amendment to practice their religion.

Kaufman v. McCaughtry, 419 F.3d 678, 681 (7th Cir. 2005). “The Free Exercise Clause

prohibits the state from imposing a substantial burden on a central religious belief or

practice.” Kaufman v. Pugh, 733 F.3d 692, 696 (7th Cir. 2013) (internal quotation marks

and citations omitted). A substantial burden “put[s] substantial pressure on an adherent

to modify his behavior and to violate his beliefs.” Thompson v. Holm, 809 F.3d 376, 379

(7th Cir. 2016). However, a prison practice that imposes a substantial burden on the free

exercise of religion may be justified if it is “reasonably related to a legitimate

penological interest.” Id. at 380. The Religious Land Use and Institutionalized Persons

Act (“RLUIPA”) offers broader protections than the First Amendment by prohibiting

substantial burdens on an inmate’s religious exercise unless that burden serves a

“compelling governmental interest” and is “the least restrictive means of furthering that

compelling governmental interest.” 42 U.S.C. § 2000cc-1(a); see also Cutter v. Wilkinson,

544 U.S. 709 (2005).

Dewey has not sufficiently explained how the broken clock placed a substantial

burden on his religious practice. He does not detail what his religious practice entails,

the significance of the official prayer time, and why he did not have alternative ways of

knowing the time.

Dewey also complains that the jail would not provide him with the books he

needed to practice his Norse religion, even though Christian inmates can have a Bible

and Jewish inmates can have a Torah. Neither the First Amendment nor RLUIPA

require the jail to purchase him religious books. See Cutter, 544 U.S. at 720 n.8 (RLUIPA

is “[d]irected at obstructions institutional arrangements place on religious observances”

and “does not require a State to pay for an inmate’s devotional accessories.”). The

Establishment Clause, however, requires the jail to treat all religions equally, “except to

the extent required by the exigencies of prison administration.” Johnson-Bey v. Lane, 863

F.2d 1308, 1312 (7th Cir. 1988); see also Larson v. Valente, 456 U.S. 228, 252 (1982)

(“[T]he Lemon v. Kurtzman ‘tests’ [abandoned in Kennedy v. Bremerton Sch. Dist., 597 U.S.

507, 510 (2022)] are intended to apply to laws affording a uniform benefit to all religions,

and not to provisions . . . that discriminate among religions.”).

Dewey’s allegations do not identify any differential treatment on the part of the

jail. Dewey alleges that Christian and Jewish inmates were allowed to possess their

religion’s holy book, but he does not say how those inmates obtained those books. If the

jail did not purchase those books, it is not obligated to purchase religious books for

Dewey. He has not alleged any differential treatment.

This complaint does not state a claim for which relief can be granted. If Dewey

believes he can state a claim based on (and consistent with) the events described in this

complaint, he may file an amended complaint because “[t]he usual standard in civil

cases is to allow defective pleadings to be corrected, especially in early stages, at least

where amendment would not be futile.” Abu-Shawish v. United States, 898 F.3d 726, 738

(7th Cir. 2018). To file an amended complaint, he needs to write this cause number on a

Pro Se 14 (INND Rev. 2/20) Prisoner Complaint form which is available from his law

library. He needs to write the word “Amended” on the first page above the title

“Prisoner Complaint” and send it to the court after he properly completes the form.

For these reasons, the court:

(1) GRANTS Charles Lee Dewey, III until April 25, 2025, to file an amended

complaint; and

(2) CAUTIONS Charles Lee Dewey, III if he does not respond by the deadline,

this case will be dismissed under 28 U.S.C. § 1915A without further notice because the

current complaint does not state a claim for which relief can be granted.

SO ORDERED on March 26, 2025.

/s/ Philip P. Simon

JUDGE

UNITED STATES DISTRICT COURT