The opinion of the court was delivered by: Will, District Judge.
Edward Redding is a prisoner in the Illinois State Penitentiary
at Joliet. He filed a complaint in this Court which seeks an
injunction and a declaratory judgment that his rights "may have
been abrogated under color of State Law" by certain prison
officials including the Warden, Frank J. Pate. The complaint also
asserts that "jurisdiction is invoked, absent diversity of
citizenship or jurisdictional amount, under [the] Doctrine of * *
* Ortega v. Ragen, 216 F.2d 561 (7th Cir., 1954.)"*fn1
Defendant Pate has moved to dismiss the complaint as to him.
His motion attacked the Court's jurisdiction on the ground that
plaintiff has failed to allege either diversity of citizenship or
the requisite dollar amount, both of which he claims are
necessary to maintain a declaratory judgment action herein.
Alternatively, defendant asserts that "the presence of a federal
question has not been demonstrated. * * *"
The allegations of the complaint, obviously prepared by the
prisoner, which the Court is bound in the interests of justice to
interpret with liberality,*fn2 are as follows:
Two supplemental documents (each entitled "Additional Statement
of Fact") have been received from the plaintiff. They reassert
the allegations of the complaint and charge the defendants with
further unwarranted action in retaliation for the filing of this
It is well settled that a suit to redress the deprivation of a
federal civil right is maintainable in this or any other federal
district court regardless of diversity of citizenship or
jurisdictional amount (neither of which are pleaded herein).
Ortega v. Ragen, supra. Accordingly, the crucial inquiry on the
motion is whether the complaint alleges facts and otherwise
affords a basis for a claim which is cognizable under the Civil
Rights Act, 42 U.S.C. § 1981-1995.
The vast majority of cases in which relief has been sought in
the federal courts for asserted maltreatment of state prisoners
by prison officials have been dismissed without a hearing on the
merit. The grounds for dismissal have variously been (1) the
inapplicability to the States of the Eighth Amendment's guarantee
against cruel and unusual punishment,*fn3 (2) the failure to
exhaust existing State remedies,*fn4 (3) the notion that an
assumption of jurisdiction would constitute an unwarranted
intrusion in the internal discipline of State penal
institutions,*fn5 or combinations of the foregoing. There have
been instances, however, in which federal district courts have
taken jurisdiction under the Civil Rights Act in such matters.
For example, in Gordon v. Garrson, 77 F. Supp. 477 (E.D. Ill.
1948), Judge Lindley denied a motion to dismiss as to a prison
warden on the basis of the following allegations:
"As to defendant Irwin, the suit is against him in
his capacity as representative of the state, so as to
bring the provisions of the Civil Rights Act into
play. Plaintiff identifies him as Warden or
Superintendent of the Illinois State Farm and implies
at least, that the injuries resulted because of
failure of defendant to exercise care, as
Superintendent, for plaintiff's well-being. Plaintiff
avers that after he had been struck and beat over the
head with a black-jack by an officer, resulting in
infection of the middle ear and complete deafness in
that ear, he was dragged to a sub-basement solitary
cell and chained by the wrist for 18 hours; that, by
order of the defendant, he was placed and kept in the
solitary cell for 92 days incommunicado; that,
subsequently, by order of Irwin, he was fed bread and
water 6 days a week, with one full meal every seventh
day, for 92 days; that, with knowledge of Irwin,
during that period, plaintiff was forced to sleep on
a wet cement floor on
a wet blanket; that, with knowledge of Irwin, he was
starved, mistreated and inhumanely punished from
November 10, 1942 until February 8, 1943; that he was
allowed one bath by Irwin and that he was compelled
to walk in his stocking feet in snow the distance of
a city block to obtain that. These averments, it
seems to me, state a legitimate cause of action under
the Civil Rights Act against Irwin." 77 F. Supp. at
While Judge Lindley discusses in an earlier part of the opinion
the question of whether the above actions were taken by Irwin in
his capacity as warden or superintendent — thereby invoking the
color of State law required by section 1983*fn6 — he nowhere
discusses what federal civil right the plaintiff was deprived of
as a result of his prison treatment. The alleged facts probably
constitute cruel and unusual punishment within the meaning of the
Eighth Amendment. In light of this, it is perhaps fair to assume
that Judge Lindley did not rely on the Eighth Amendment because,
as the law stood then (1948), the Supreme Court had never, in so
many words, sanctioned its application to the States.
In the absence of a clear-cut interpretation by the Supreme
Court extending the Eighth Amendment to the States, a judge-made
federal civil right evolved. Thus, in Blythe v. Ellis,
194 F. Supp. 139 (S.D.Tex. 1961), allusion is made to the purview of
"The court is of the opinion that defendant's
alleged conduct constitutes `internal discipline'.
Federal courts do not inquire into such matters as
solitary confinement, refreshment funds, work
assignments, etc. Bryant v. Harrelson, * * *
187 F. Supp. 738; Siegel v. Ragen, * * 180 F.2d 785,
certiorari denied 1950, 339 U.S. 990 * * *. No
intentional deprivation of essential medical care or
infliction of serious bodily injury appears. Unlike
`internal discipline', those occurrences are
actionable. Gordon v. Garrson, * * 77 F. Supp. 477;
Coleman v. Johnston, 7 Cir., 1957, 247 F.2d 273 * *
*." 194 F. Supp. at 140.
Interestingly enough, the opinion goes on to assert in the next
paragraph that "(a)s for the Eighth Amendment's `cruel and
unusual punishment' clause, it is inapplicable. McElvaine v.
Brush, 1891, 142 U.S. 155 * * * compels this conclusion. Ex parte
Bernard * * * 52 F. Supp. 102, at page 104, states `* * * the
Eighth Amendment * * * is not a guarantee against state action.'
* *." Ibid.
The above, however, is no longer a correct statement of the
law. The Supreme Court clarified any doubt in the matter by its
recent opinion in Robinson v. California, 370 U.S. 660, 82 S.Ct.
1417, 8 L.Ed.2d 758 (1962), wherein the Eighth Amendment's
guarantee against cruel and unusual punishment was applied
through the Due Process Clause of the Fourteenth Amendment to a
California statute making drug addiction a crime. Accordingly,
those decisions which have bottomed their dismissal of Civil
Rights actions by State prisoners in whole or in part on the
assumption that the Eighth Amendment is not applicable to the
States have been overruled to that extent.
There still remains, of course, the question of what
constitutes "cruel and unusual punishment," but the notion that
the States are immune from this guarantee of the Bill of Rights
is now nothing more than nostalgia. Moreover, the cases make it
clear that the concept of "cruel and unusual punishment" is broad
and elastic. Thus, in the Robinson case 370 U.S. at ...