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Prisoner Can Sue for Cockroaches, But He Can't Sue the State

By Robyn Hagan Cain | Last updated on

Calvin Thomas filed a civil rights claim against the State of Illinois and the Illinois Department of Correction, alleging that he had been subjected to cruel and unusual conditions in his prison cell.

What was so cruel and unusual about Thomas’ digs? Try cockroaches. And mice. And a missing window pane that let the rain in. (Is there anything worse than damp clothes?)

This week, the Seventh Circuit Court of Appeals affirmed dismissal of Thomas’ case. While the appellate court found it unacceptable that Thomas literally lived in a rat hole, they also found it unacceptable that Thomas sued the state instead of individuals at the prison.

Both the Constitution and statutory law blocked Thomas' suit from moving forward. First, the Eleventh Amendment generally bars suits against a state or a state agency, unless Congress abrogates a state's sovereign immunity. (Thomas sued under 42 USC §1983, but Congress didn't create a sovereign immunity exception under §1983.) Second, the Supreme Court held in Will v. Michigan Department of State Police that a state and its agencies are not suable "persons" within the meaning of §1983.

Judge Richard Posner, writing for the Seventh Circuit panel, observed that Thomas could have avoided both the statutory and the constitutional bars to his lawsuit by naming individuals as defendants, rather than just a state and an agency of the state.

If only...

You see, the district judge dismissed the case on alternative grounds: sovereign immunity and failure to allege a harm.

Judge Posner wrote the opinion in this case "to correct the judge's apparent assumption that creation of a mere hazard to health, as opposed to an actual impairment of health, can never be a harm sufficient to support an Eighth Amendment violation."

The district judge said that "a successful complaint of pest infestation can be distinguished [from an unsuccessful one only] by an allegation of 'significant physical harm' arising from the pests." Judge Posner countered that the Seventh Circuit had previously emphasized that physical injury was not the only type of injury actionable in a prisoner's civil rights suit.

There are three types of harm that infestation can create: disease, psychological harm, and "loss of chance" or hazard. Here, Thomas asserted hazard.

According to Posner, the potential harm from living in a small cell infested with mice and cockroaches is pretty obvious. Vermin bacteria can aggravate asthma and cause other disease, inhaling microscopic particles from mice infected with hantavirus can infect a person with potentially fatal Hantavirus Pulmonary Syndrome, and rodent contact can cause the plague.

Assuming the applicability of the "loss of a chance" theory of damages, Thomas' prison cell infestation might have been a compensable hazard, even if he was lucky enough to avoid disease and psychological damage.

If only Thomas had named an individual as a defendant.

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