# Dewey v. Hershberger

> District Court, N.D. Indiana · March 26, 2025

URL: https://www.frixlaw.com/law-library/cases/10831488

## Case

- **Court:** District Court, N.D. Indiana
- **Decided:** March 26, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10831488. Public record. Not legal advice.