Donald A. Smith v. Thomas J. Dart

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-1169
D ONALD A. SMITH,
Plaintiff-Appellant,
v.
T HOMAS J. D ART, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 5034 — Amy J. St. Eve, Judge.
A RGUED A PRIL 2, 2015 — D ECIDED SEPTEMBER 25, 2015
Before BAUER , P OSNER , and MANION , Circuit Judges.
BAUER , Circuit Judge. Plaintiff-appellant, Donald A. Smith,
a pretrial detainee at the Cook County Jail, brought this pro se
civil rights action under 42 U.S.C. § 1983, claiming that
defendant-appellee, Cook County Sheriff Thomas J. Dart
(“Dart”), violated his federal rights by paying him insufficient
wages and subjecting him to inhumane working and living
conditions. The district court dismissed Smith’s work- and
wage-related claims on preliminary review under 28 U.S.C.

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2 No. 14-1169
§ 1951A. The court later dismissed Smith’s remaining claims
without prejudice for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6). Smith filed two post-dismissal
motions, each of which the district court treated as a motion for
reconsideration, and each of which the district court denied.
The court then dismissed Smith’s case with prejudice under
Federal Rule of Civil Procedure 41(b). Smith appealed. For the
reasons that follow, we affirm in part and reverse in part.
I. BACKGROUND
On July 15, 2013, Smith filed a pro se complaint under 42
U.S.C. § 1983 in the United States District Court for the
Northern District of Illinois. Smith named Dart and two other
jail officials as defendants in the caption of his complaint.1 The
complaint states that Smith, as a pretrial detainee and United
States Army veteran, was placed in Division Five and enrolled
in a special program that the jail offered to veterans. As a part
of the veterans’ program, Smith was given a job in the jail
laundry. The program afforded him other benefits as well,
including the opportunity to live in a special wing for veterans,
apart from the general jail population, and to have his case
heard in veterans’ court. Smith claimed that he was paid only
$3 a day for his work in the jail laundry and not the required
federal minimum wage. He also claimed that he was subjected
to inhumane working conditions, alleging that his job in the jail
laundry required him to stand in a “hot, smelly room” from
five or six o’clock in the morning until one o’clock in the
1 Dart is the only one of the three named defendants who was served with
process and filed an appearance in this case.

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No. 14-1169 3
afternoon. Lastly, Smith claimed that he was subjected to
inhumane conditions of confinement. Specifically, he alleged
insufficient food portions, the presence of rodents and insects,
no mirrors, lack of outdoor recreation, and that he was forced
to drink filthy water.
Pursuant to 28 U.S.C. § 1951A, the district court conducted
a preliminary review of the complaint. The court summarily
dismissed Smith’s work- and wage-related claims. The court
held that Smith had “no constitutional right to be paid for his
jail job assignment at all, let alone in accordance with mini-
mum wage laws,” and that his “allegation that he has to work
7- and 8-hour days in a ‘hot, smelly room’ [was] insufficiently
egregious to rise to the level of a constitutional violation.”
However, the court determined that Smith had stated colorable
conditions of confinement claims.
Dart then moved to dismiss the remainder of Smith’s claims
for failure to state a claim under Federal Rule of Civil Proce-
dure 12(b)(6), or alternatively, for a more definite statement
under Rule 12(e). In response, Smith submitted two letters, the
substance of which we set forth in our discussion below. The
district court did not address Smith’s first letter and treated
his second letter as a motion to introduce evidence, which it
denied. The court then granted Dart’s motion to dismiss as
uncontested and dismissed Smith’s complaint without preju-
dice. In doing so, the court advised Smith of the deficiencies in
his original pleading and instructed him to file an amended
complaint.
Subsequent to the district court’s dismissal order, Smith
filed a “Motion Clarifying Preivously [sic] Cited Complaint

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4 No. 14-1169
About Conditions At Cook County Jail; Pluss [sic] Reconcider-
ation [sic] of Portion of Same dismissed under The Eigth [sic]
Amendment.” This motion included the date on which he was
first incarcerated in Division Five (December 12, 2012) and the
dates that he worked in the jail laundry (January 15, 2013 to
November 18, 2013). The motion also indicated that he was
“transfered [sic] against his wishes” out of Division Five (and
presumably the veterans’ program) to Division Eleven. The
district court construed this filing as a motion for clarification
(which it granted) and reconsideration of the dismissal order
(which it denied). The court specifically directed Smith, for a
second time, to file an amended pleading and granted him
additional time to do so.
Smith then submitted another filing, entitled “Amended
Motion in Support of Original Complaint.” In this filing, Smith
claimed that he was subjected to “the previously mentioned
violations of his Constitutional rights” since the date of his
incarceration in Division Five. He also set forth case law and
referenced newspaper articles and a Department of Justice
study to support the allegations he had pleaded in his original
complaint. Relevant to his conditions of confinement claims, he
alleged that the water at the jail contained radioactive chemi-
cals, “sex[,] drugs[,] and lead,” and that corrections officers
were fully aware of this. He reiterated that he had been
transferred from Division Five to Division Eleven and further
stated that he had been housed in Division Eleven for approxi-
mately one and a half months and that there had been “very
little change for the better due to [the] transfer.” The district
court construed this filing as a second motion for reconsidera-
tion, which it denied.

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No. 14-1169 5
Two weeks later, on January 27, 2014, the district court
dismissed Smith’s case with prejudice pursuant to Federal Rule
of Civil Procedure 41(b). The court explained that, despite
warning Smith that failure to amend his complaint would
result in summary dismissal, Smith did not submit an amend-
ed complaint as instructed. This appeal followed.
II. DISCUSSION
Smith, represented by counsel on appeal, challenges the
district court’s dismissal of his work- and wage-related claims
under 28 U.S.C. § 1951A, as well as the court’s dismissal of his
conditions of confinement claims under Federal Rule of Civil
Procedure 12(b)(6). We review de novo both a § 1951A dismissal
at the screening stage and a Rule 12(b)(6) dismissal for failure
to state a claim. Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th
Cir. 2006). When reviewing a motion to dismiss, we accept all
facts alleged in the complaint as true and draw all reasonable
inferences from those facts in favor of the plaintiff. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 563 (2007); Vill. of DePue v.
Exxon Mobil Corp., 537 F.3d 775, 782 (7th Cir. 2008).
To satisfy the notice pleading standard of Rule 8(a)(2) of the
Federal Rules of Civil Procedure, a complaint must merely
provide “a short and plain statement of the claim,” which is
sufficient to “give the defendant fair notice of what the …
claim is and the grounds upon which it rests,” Bell Atl. Corp.,
550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)),
including “some indication … of time and place,” Thomson v.
Washington, 362 F.3d 969, 970–71 (7th Cir. 2004). Although
detailed factual allegations are not required, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a

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6 No. 14-1169
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp., 550 U.S. at 570);
Bonte v. U.S. Bank, N.A., 624 F.3d 461, 463 (7th Cir. 2010). In
other words, a plaintiff “must plead some facts that suggest a
right to relief that is beyond the speculative level.” Atkins v.
City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011) (internal
quotation marks and citation omitted). Because pro se plead-
ings are to be held to “less stringent standards than formal
pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519,
520 (1972) (per curium), we accord a liberal reading to pro se
complaints, Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011).
With these general principles in mind, we turn to Smith’s
challenges on appeal.
A. Conditions of Confinement
At the outset, we note that Smith’s constitutional rights as
a pretrial detainee are derived from the Due Process Clause of
the Fourteenth Amendment, rather than the Eighth Amend-
ment, which is applicable to convicted prisoners. See, e.g.,
Kingsley v. Hendrickson, _ U.S. _, 135 S. Ct. 2466, 2475 (2015);
Budd v. Motley, 711 F.3d 840, 842 (7th Cir. 2013). In the context
of a conditions of confinement claim, a pretrial detainee is
entitled to be free from conditions that amount to “punish-
ment,” Bell v. Wolfish, 441 U.S. 520, 535 (1979), while a con-
victed prisoner is entitled to be free from conditions that
constitute “cruel and unusual punishment.” Farmer v. Brennan,
511 U.S. 825, 832 (1994). In both cases, however, the alleged
conditions must be objectively serious enough to amount to a
constitutional deprivation, and the defendant prison official

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No. 14-1169 7
must possess a sufficiently culpable state of mind. 2 See, e.g.,
Sain v. Wood, 512 F.3d 886, 893–94 (7th Cir. 2008); Board v.
Farnham, 394 F.3d 469, 478 (7th Cir. 2005); Cavalieri v. Shepard,
321 F.3d 616, 620 (7th Cir. 2003). An adverse condition amounts
to a constitutional deprivation when it results in the denial of
a basic human need, Rice ex rel. Rice v. Corr. Med. Servs., 675
F.3d 650, 664 (7th Cir. 2012), such as “adequate food, clothing,
shelter, and medical care,” Farmer, 511 U.S. at 832.
The district court dismissed Smith’s conditions of confine-
ment claims, holding that he failed to state facts indicating that
the alleged conditions were sufficiently serious enough to
implicate the Constitution. Smith challenges this decision on
appeal. We address each of his arguments in turn.
Smith first contends that, in dismissing his conditions of
confinement claims, the district court conflated the Fourteenth
Amendment with the Eighth Amendment, and thus failed to
consider whether his claims fell somewhere within the “gray
area” that exists between them. First, the district court ac-
knowledged Smith’s status as a pretrial detainee and that his
2 With respect to this second, subjective element, an inmate must “prove
that the defendant ‘possess[ed] a purposeful, a knowing, or possibly a
reckless state of mind’ with respect to the defendant’s actions (or inaction)
toward the plaintiff.” Davis v. Wessel, 782 F.3d 793, 801 (7th Cir. 2015)
(quoting Kingsley, 135 S. Ct. at 2472). Although the parties argue this
element in their briefs, it is not at issue in this appeal. As the district court
correctly noted, the personal involvement of senior jail officials, such as
Dart, can be inferred at the motion to dismiss stage, where, as here, the
plaintiff alleges “potentially systemic,” as opposed to “clearly localized,”
constitutional violations. See Antonelli v. Sheahan, 81 F.3d 1422, 1428–29 (7th
Cir. 1996).

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8 No. 14-1169
rights are derived from the Fourteenth Amendment. The
district court also recognized the Supreme Court’s holding in
Bell v. Wolfish that due process protects pretrial detainees from
being subjected to conditions of confinement that amount to
punishment. The court determined, however, that Smith failed
to allege facts indicating that he was subjected to such grave
conditions. Second, the district court did not err by relying on
Eighth Amendment cases or by failing to consider whether
Smith’s conditions of confinement claims fell within some
“gray area” that exists between the Eighth and Fourteenth
Amendments. We have held that there is little practical
difference, if any, between the standards applicable to pretrial
detainees and convicted inmates when it comes to conditions
of confinement claims, and that such claims brought under the
Fourteenth Amendment are appropriately analyzed under the
Eighth Amendment test. See, e.g., Smego v. Mitchell, 723 F.3d
752, 756 (7th Cir. 2013) (“[T]he protection afforded under [the
Due Process Clause] is functionally indistinguishable from the
Eighth Amendment’s protection for convicted prisoners.”);
Hart v. Sheahan, 396 F.3d 887, 892 (7th Cir. 2005) (“[T]he
standards applicable to complaints by convicts and by pretrial
detainees about unsafe conditions of confinement merge.”);
Farnham, 394 F.3d at 478 (“[W]e have found it convenient and
entirely appropriate to apply the same standard to claims
arising under the Fourteenth Amendment (detainees) and
Eighth Amendment (convicted prisoners) without differentia-
tion.” (internal quotation marks omitted)); Weiss v. Cooley, 230
F.3d 1027, 1032 (7th Cir. 2000) (“[T]here is little practical
difference between the two standards.”). Accordingly, Smith’s
generalized claim of error fails.

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No. 14-1169 9
Next, Smith argues that the district court erred in granting
Dart’s motion to dismiss as uncontested. More specifically, he
claims that the district court should have considered a pair of
letters that he submitted in response to Dart’s motion and the
additional factual allegations included therein. On this point,
we agree.
The district court held a hearing and entered Dart’s motion
to dismiss on October 1, 2013. Smith mailed his first letter,
entitled “In support of original complaint,” two days later,
which the district court received on October 7, 2013. This letter
contains factual assertions that support and elaborate on the
allegations spelled out in Smith’s original complaint (it also
contains a number of allegations that do not relate to his
original complaint). The court received Smith’s second letter,
which he labeled as an “Additional Request to intraduce [sic]
evidence,” on October 9, 2013. This letter is not as helpful to
Smith’s case as the first. The district court did not address
Smith’s first letter and denied his second letter, stating “[n]o
proof in support of Plaintiff’s claims is necessary at this time.”
We have held that facts alleged by a plaintiff in a brief in
opposition to a motion to dismiss “may be considered when
evaluating the sufficiency of a complaint so long as they are
consistent of the allegations in the complaint.” Gutierrez v.
Peters, 111 F.3d 1364, 1367 n.2 (7th Cir. 1997); Albiero v. City of
Kankakee, 122 F.3d 417, 419 (7th Cir. 1997) (“[W]e have held that
a plaintiff may supplement the complaint with factual narra-
tion in an affidavit or brief.”). Although neither of Smith’s
letters were formally labeled as a motion in response to Dart’s
motion to dismiss, the letters were filed on the heels of Dart’s
motion and contained additional factual assertions that added

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10 No. 14-1169
to the allegations that Smith made in his original complaint.
Given the district court’s obligation to construe pro se pleadings
liberally, the court ought to have considered these letters when
ruling on Dart’s motion.
Dart argues that, even if the district court had considered
the two letters, Smith’s allegations are still insufficient to state
a conditions of confinement claim. We agree with respect to
some of Smith’s claims, but disagree with respect to others.
However, before addressing each claim in light of the addi-
tional facts contained in Smith’s letters, we first identify the
claims comprehended by Smith’s original complaint. The
relevant portion of Smith’s complaint states:
[D]aily given breakfast of 1 egg - 1 2% milk half cup
cereal small pak [sic] of Kool-Aid then lunch peanut
butter sandwich and cookies with 1 pak [sic] of Kool-
Aid. Pre-trial detainees are in program and conditions
are foul roaches mice, cockroaches in food no mirrors
even to see self shave can’t go outside recreation filthy
water etc.
Smith’s conditions of confinement claims can thus be
summarized as follows: (1) inadequate food, (2) the presence
of rodents and insects, (3) no mirrors,3 (4) lack of outdoor
recreation, and (5) contaminated water. Although a plaintiff
may assert additional facts in a motion to defeat dismissal, he
or she cannot amend his or her complaint to state new claims
3 The district court did not address Smith’s claim regarding a lack of
mirrors. Smith does not re-raise the issue on appeal. Therefore, it is waived.

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No. 14-1169 11
in such a motion. Am. Inter-Fid. Exch. v. Am. Re-Ins. Co., 17 F.3d
1018, 1021–22 (7th Cir. 1994). Therefore, we consider the factual
allegations contained in Smith’s letters to the extent that they
are consistent with, or add to, the deprivations concomitant
with the claims described above. We do not consider the letters
to the extent that they raise new claims, such as invasion of
privacy, understaffing, inadequate heating, 4 overcrowding,
and so on.
4
We do not reject Smith’s inadequate heat allegation. Rather, we do not
consider that allegation because it does not relate to any of the allegations
raised in his complaint, nor does it work in combination with any of the
allegations in his complaint to show the deprivation of a single, identifiable
basic human need. See Wilson v. Seiter, 501 U.S. 294, 304 (1991)
(“[C]onditions of confinement may establish an Eighth Amendment
violation ‘in combination’ when each would not do so alone, but only when
they have a mutually enforcing effect that produces the deprivation of a
single, identifiable human need such as food, warmth, or exercise—for
example, a low cell temperature at night combined with a failure to issue
blankets.”). Simply stated, it is a new claim. And as such, it cannot be raised
in a brief in opposition to a motion to dismiss; it must be pleaded in a new
or amended complaint. See Am. Inter-Fid. Exch., 17 F.3d at 1021–22. Because
we ultimately end up remanding to the district court, Smith may, with leave
of the court, amend his complaint if he so chooses. Given that the allegation
in his letter in opposition to Dart’s motion to dismiss appears to state a
claim for inadequate heating, see, e.g., Del Raine v. Williford, 32 F.3d 1024,
1035 (7th Cir. 1994), and assuming that he continues to be represented by
counsel, we see no reason why Smith should be denied leave to amend.

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12 No. 14-1169
1. Inadequate Food
The Constitution mandates that prison officials provide
inmates with “nutritionally adequate food that is prepared and
served under conditions which do not present an immediate
danger to the health and well-being of the inmates who
consume it.” French v. Owens, 777 F.2d 1250, 1255 (7th Cir.
1985) (citation omitted). The district court dismissed Smith’s
inadequate food claim on the ground that his complaint did
not suggest that meals served at the jail are nutritionally
deficient or present a substantial danger of harm. Smith’s first
letter adds to this claim by alleging, among other things, that
his “[f]ood is well below nutritional value.” At the motion to
dismiss stage, these six words make all the difference under
our precedent. See Antonelli, 81 F.3d at 1432 (holding inmate’s
allegation of a “nutritionally deficient diet” sufficient to “state[]
a claim for a violation of the Due Process Clause or the Eighth
Amendment”). This claim, therefore, should not have been
dismissed.
2. The Presence of Rodents and Insects
Pest infestations may also form the basis of a Fourteenth or
Eighth Amendment conditions of confinement claim. Antonelli,
81 F.3d at 1431; see also Thomas v. Illinois, 697 F.3d 612, 614 (7th
Cir. 2012). The district court determined that Smith failed to
state a claim because, although 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. Smith’s first letter adds to the
allegations contained in his complaint, stating, “[s]piders, rats,
roaches, centerpides [sic], flys, gnats and beetles are on the

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No. 14-1169 13
tier[,] also there are nests of spiders under the radiators[,]
roaches and gnats make their home in the showers and toilet
area.” We do not doubt that there are rodents and insects in the
Cook County Jail, however, alleging the mere presence of a
laundry list of pests, without more, is not sufficient to state a
constitutional claim. Despite Smith’s additional allegations, we
are left in the dark as to how extensive the infestations are and
how the pests affect him. He does not allege that pests are
present in his cell, or that pests have ever come into contact
with his person or his property, or that he’s been bitten or
stung or otherwise suffered physical or psychological harm, or
that his property has been damaged. Nor does he allege how
often he observes rodents and roaches on the tier, whether it’s
continuously or only from time to time. On all of these matters
we are left to speculate. Smith’s allegations are a far cry from
those we examined in Antonelli, where the plaintiff inmate
alleged “cockroaches that were everywhere, crawling on his
body (along with mice) and constantly awakening him, and
causing the environment to be unsanitary.” 81 F.3d at 1431
(internal quotation marks omitted). His allegations also do not
approach the severity of the conditions that we considered a
“close case,” though sufficient to state a claim, in White v.
Monohan, 326 Fed. Appx. 385, 388 (7th Cir. 2009) (unpublished)
(“White claimed that for over five years the bugs, roaches,
spiders, wasps, and bees had bitten and stung him so often as
to leave multiple scars, wounds, and sores, causing him
internal injuries.” (internal quotation marks omitted)). Thus,
even in light of Smith’s two letters, his pest infestation allega-
tions are insufficient to state a constitutional violation.

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14 No. 14-1169
3. Lack of Outdoor Recreation
We have recognized that lack of exercise can rise to a
constitutional violation “[w]here movement is denied and
muscles are allowed to atrophy[] [and] the health of the
individual is threatened.” French, 777 F.2d at 1255; Antonelli, 81
F.3d at 1432 (“Lack of exercise may rise to a constitutional
violation in extreme and prolonged situations where move-
ment is denied to the point that the inmate’s health is threat-
ened.”); see also Delaney v. DeTella, 256 F.3d 679, 684 (7th Cir.
2001); Thomas v. Ramos, 130 F.3d 754, 764 (7th Cir. 1997). 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 and his letters add nothing to this claim. 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.
4. Contaminated Water
Just as correctional officers cannot deprive inmates of
nutritional food, they cannot deprive inmates of drinkable
water. Atkins, 631 F.3d at 830. The district court dismissed
Smith’s contaminated water claim on the ground that he
alleged no facts from which one could infer that the jail’s water
is unsafe to drink. In his first letter, Smith further alleges with
respect to this claim that “the [correctional officers] do not
drink the water yet we have to and it is a known fact that the
water in the jail is polluted and contains high levels of alpha +
beta radiation also cyanide and lead.” Certainly, the presence

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No. 14-1169 15
of contaminants such as cyanide and lead may render water
unsafe to drink. Thus, accepting Smith’s allegations as true, as
we must at this stage, we cannot say Smith’s allegations of
contaminated water fail to state a claim upon which relief can
be granted.
Lastly, Smith argues that the district court should have
considered his two post-dismissal filings as amended com-
plaints, as opposed to motions for reconsideration. These two
filings, however, do not contain allegations that remedy the
aforementioned deficiencies from which Smith’s pest infesta-
tion and lack of outdoor recreation claims suffer. Given that we
have already held that Smith may proceed on his inadequate
food and contaminated water claims, even if we were to
conclude that the district court erred in the respect he suggest,
the outcome of this appeal would remain the same. This point,
therefore, requires no further discussion.
B. Smith’s Work- and Wage-Related Claims
As recounted previously, Smith claimed in his complaint
that he was entitled to be paid in accordance with federal
minimum wage laws for his work in the jail laundry room. He
also claimed that his working conditions, which caused him to
stand seven to eight hours a day in a “hot, smelly room,” were
unconstitutional. The district court dismissed both claims
summarily on preliminary review.
On appeal, Smith first argues that he stated a valid claim
under the Fair Labor Standards Act (“FLSA”) based on his $3
per day, sub-minimum wage pay. He also argues that the
conditions that he was “compelled to work under” violate the

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16 No. 14-1169
Thirteenth and Fourteenth Amendments. We find neither of
these arguments persuasive.
The FLSA is intended for the protection of employees,
Bennett v. Frank, 395 F.3d 409, 409 (7th Cir. 2005), and applies
to all employers in the free market, whether private or public,
Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 555–56
(1985). In Bennett, we held that prisoners are not protected by
the FLSA because they are not employees of their prison. 395
F.3d at 409. We explained:
[P]eople are not imprisoned for the purpose of enabling
them to earn a living. The prison pays for their keep. If
it puts them to work, it is to offset some of the cost of
keeping them, or to keep them out of mischief, or to
ease their transition to the world outside, or to equip
them with skills and habits that will make them less
likely to return to crime outside. None of these goals is
compatible with federal regulation of their wages and
hours. The reason the FLSA contains no express excep-
tion for prisoners is probably that the idea was too
outlandish to occur to anyone when the legislation was
under consideration by Congress.
Id. at 410.
In Sanders v. Hayden, 544 F.3d 812, 814 (7th Cir. 2008), we
held that civil detainees are not covered by the FLSA, since
Bennett’s reasoning applies equally to this class of persons as
it does to prisoners. We further noted that the minimum wage
is not needed to protect civil detainees’ well-being and stan-
dard of living because, like prisoners, civil detainees have their
basic human needs provided for by the state. Id. We cannot see

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No. 14-1169 17
what difference it makes if the incarcerated person is a pris-
oner, civil detainee, or pretrial detainee. In all cases, the
aforementioned principles apply equally. Thus, like prisoners
and civil detainees, pretrial detainees are not protected by the
FLSA because they are not employees of their prison.
Smith argues that he should fall within the ambit of the
FLSA because the Cook County Jail is not satisfying his basic
needs and he requires the minimum wage to satisfy these
needs. True, we did hold above that Smith stated a claim for
inadequate food and contaminated water. However, this does
not mean that he is entitled to minimum wage. It is the jail’s
constitutional obligation to provide Smith with his basic needs,
including adequate food and drinkable water. When the jail
fails to do so, it is that failure that must be remedied (the
Constitution demands it); it does not entitle him to receive
minimum wage under the FLSA.
Smith’s Thirteenth and Fourteenth Amendments claims
require little discussion. The Thirteenth Amendment provides
that “[n]either slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly
convicted, shall exist within the United States, or any place
subject to their jurisdiction.” U.S. Const. amend. XIII, § 1. As
discussed in the previous section, the Due Process Clause
protects pretrial detainees from being subjected to conditions
of confinement that amount to punishment. Bell v. Wolfish, 441
U.S. at 535.
The glaring problem with Smith’s arguments is that he
chose on his own volition to participate in the veterans’
program and avail himself of its benefits, including the ability

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18 No. 14-1169
to work and earn wages. In other words, his “servitude” was
not involuntary, nor can it be considered punishment. Perhaps
recognizing this flaw, Smith argues that he felt compelled to
work because, if he refused, he would lose other special
privileges that he received as a participant in the veterans’
program, such as being housed apart from the general popula-
tion and having his case heard in veterans’ court. Smith did not
have a right to these special privileges, however, and therefore
the loss of these privileges does not constitute punishment in
the constitutional sense.
III. CONCLUSION
In conclusion, we REVERSE the district court’s decision
with respect to Smith’s inadequate food and contaminated
water claims and REMAND for further proceedings on
those claims. The remainder of the district court’s decision
is AFFIRMED.

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No. 14-1169 19
POSNER , Circuit Judge, concurring and dissenting. The
plaintiff claims that while detained in Cook County Jail
awaiting trial he has been subjected to intolerable living
conditions, violative of his constitutional rights. As a pretrial
detainee, proceeding therefore under the due process clause
of the Fourteenth Amendment rather than under the cruel
and unusual punishment clause of the Eighth Amendment,
he is entitled to be free from conditions that amount to “pun-
ishment.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). One of
those conditions is “denial of a basic human need,” Rice ex
rel. Rice v. Correctional Medical Services, 675 F.3d 650, 664 (7th
Cir. 2012), such as “adequate food, clothing, shelter, and
medical care.” Farmer v. Brennan, 511 U.S. 825, 832 (1994).
The denial of such conditions is particularly egregious when
one is dealing with pretrial detainees, for they have not been
convicted of a crime. (The plaintiff also claims to be under-
paid for his work in the jail laundry, but the rejection of that
claim in the majority opinion is correct for the reasons given
in the opinion.)
His complaint, as supplemented in response to the jail’s
motion to dismiss (which I’ll come to shortly), alleged that
insects infest his cell and common areas, that he’s found
cockroaches and mice in his food, that the drinking water in
his cell is contaminated and toxic, that his cell is inadequate-
ly heated during the winter, that he isn’t allowed to go out-
side for recreation or exercise, and that the meals the jail
gives him are nutritionally inadequate—breakfast is a single
egg with a half cup of cereal with milk and a small packet of
Kool-Aid, lunch a peanut butter sandwich and some cookies
(he doesn’t mention supper). Although theoretically he

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20 No. 14-1169
could supplement his diet at the commissary, he alleges that
the commissary’s prices are prohibitive.
These are just allegations. They may be groundless. But I
don’t understand the district court’s deciding to dismiss the
complaint in its entirety, and with prejudice, for failure to
state a claim.
The jail had filed a motion to dismiss on that ground and,
in the alternative, a motion for a more definite statement of
the plaintiff’s claim. The motions contended that he had
failed to “provide sufficient enough [sic—“sufficient” and
“enough” are synonyms] allegations to put the Defendant on
notice of his claims,” that his claims lacked “factual content
that allows the court to [infer] that the defendant [Cook
County Sheriff Thomas Dart, the administrator of the jail] is
liable for the misconduct alleged,” and that he had failed to
allege “when he was housed in Division 5, for how long, and
whether the conditions changed.” (The jail does not dispute,
however, that the Sheriff is the proper defendant if the plain-
tiff’s constitutional rights have been violated.)
The plaintiff responded in a pair of letters, filed with the
court, which explained when he had been assigned to Divi-
sion 5 and how long he had been there (ten months), and al-
so elaborated on the facts alleged in his complaint. Never-
theless the district judge granted the jail’s motion to dismiss,
though with leave for the plaintiff to file an amended com-
plaint. The judge called the jail’s motion “uncontested,” say-
ing that the plaintiff, though she had granted him “the op-
portunity to file an opposing brief,” had failed to do so. She
added that “even accepting Plaintiff’s factual allegations as

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No. 14-1169 21
true, the Court finds that the complaint fails to give Defend-
ants sufficient notice of the claims against them. Plaintiff
must elaborate on his claims; the facts alleged are inadequate
to satisfy even basic pleading requirements.”
Yet in response to the jail’s motion to dismiss or for a
more definite statement, he had pleaded additional facts that
cured the pleading deficiencies alleged by the jail. The judge
appears to have overlooked the filings containing the addi-
tional allegations when she said for example that “the com-
plaint states that there are mice and cockroaches, but [the
plaintiff] offers no basis for concluding that the degree of in-
festation is such as to create a constitutional claim.” This
terse turn-down gave the plaintiff no clue of what he had to
allege, regarding his having to share his cell with mice and
cockroaches, in order to plead a constitutional violation. I
don’t understand the judge’s remark in granting the jail’s
motion to dismiss that “the amended complaint must in-
clude dates. … Plaintiff must provide a time frame for the
conditions about which he complains. … Punishment gener-
ally requires allegations of extreme deprivations over an ex-
tended period of time.” He had already stated, in a filing
that the district judge may well have overlooked because it
wasn’t labeled an amended complaint, that he’d been in his
infested cell for 10 months. To state a claim that would sur-
vive a motion to dismiss, the plaintiff wasn’t required to
have kept a calendar, marking on it every day that a mouse
or cockroach appeared in his food or scurried across the
floor of his cell.
Instead of filing a document labeled “amended com-
plaint,” the plaintiff filed a “Motion Clarifying Pre[vi]ously

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22 No. 14-1169
Cited Complaint About Conditions at Cook County Jail;
Plus[] Recon[s]ideration of Portion of Same Dismissed Un-
der the Eig[h]th Amendment.” The judge treated this as a
request for clarification of her order dismissing the com-
plaint, and she offered by way of clarification that “if Plain-
tiff wishes to pursue his claims, he must state facts indicat-
ing that the food served at the jail is nutritionally inadequate
or presents a substantial danger of harm, that the jail’s water
is unsafe to drink, that pest infestation is so profound as to
rise to the level of a constitutional violation, and that the de-
nial of exercise is extreme and prolonged.” This order
evoked from the plaintiff an “Amended Motion in Support
of Original Complaint,” which elaborated on his allegation
that the jail’s water was unsafe to drink but not on his other
allegations. The district judge then dismissed his suit with
prejudice on the ground that he had failed to file an amend-
ed complaint. This appeal followed.
The majority opinion upholds some of his claims, rejects
others, and for the most part I agree with its rulings. But not
with respect to the alleged infestation of his cell by mice and
cockroaches, and the inadequate heating of his cell (although
footnote 4 of the majority opinion leaves some room for him
to renew the heating complaint on remand). The district
judge directed this pro se plaintiff to file an amended com-
plaint specifying whether the infestation of his cell by mice
and cockroaches was “so profound as to rise to the level of a
constitutional violation.” How could a pro se jail detainee be
expected to answer such a question? He had alleged that the
mice and cockroaches were in his food and that he devel-
oped scabies—a highly contagious skin infestation, produc-

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No. 14-1169 23
tive of severe itching, and sometimes referred to as “the sev-
en-year itch”—from the unsanitary conditions. What more
should be required to state a claim of punishment? That he
keep a record of the number of his meals that he shared with
the vermin? He alleged that his cell was inadequately heated
during the winter; again, what more should he have been
required to allege—does the jail give him a thermometer and
a calendar, so that he can keep a written record of the tem-
perature in his cell day by day to submit to a judge?
Smith responded to the defendants’ request for more in-
formation about the pest and heating allegations. That
should have been enough to convince the district court to
deny the motion to dismiss. The jail’s counsel would then
have deposed the plaintiff and maybe other inmates and also
jail employees and on the basis of the testimony elicited in
those depositions might have moved successfully for sum-
mary judgment. Because the district judge terminated the
case prematurely, no one will ever know whether the plain-
tiff’s rejected claims concerning pest infestation and (subject
to the qualification in footnote 4) inadequate heating are in-
deed meritless.

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