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June 18, 1963


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 lawsuit.

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 this right:

    "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 ...

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