United States District Court, Northern District of Illinois
May 18, 1973
AARON PINKSTON, PLAINTIFF,
PETER BENSINGER AND JOHN J. TWOMEY, DEFENDANTS.
The opinion of the court was delivered by: Bauer, District Judge.
MEMORANDUM OPINION AND ORDER
This cause comes on the defendants' motion either to dismiss
the complaint or for summary judgment in their favor. The
plaintiff is presently incarcerated in the Illinois State
Penitentiary, Joliet Branch, Special Programs Unit, pursuant
to a conviction by the Circuit Court of Cook County for armed
robbery. Plaintiff was sentenced to serve from two to five
years in the penitentiary on June 10, 1971.
The defendants are Peter B. Bensinger, former director of
the Illinois Department of Corrections, and John J. Twomey,
Warden of the Illinois State Penitentiary, Joliet Branch.
This is an action to redress an alleged deprivation of the
plaintiff's civil rights guaranteed by the Civil Rights Act of
1870 and 1871, 42 U.S.C. § 1981 and 1983. The jurisdiction of
this Court is predicated on 42 U.S.C. § 1981 and 1983 and
28 U.S.C. § 1331 and 1343(3).
The plaintiff in his complaint alleges the following
deprivations of his constitutional rights:
1. He must sleep on a concrete base with a
"filthy" mattress and with inadequate
2. The cell is dark, damp and chilly.
3. Showers are infrequent.
4. Medical attention is inadequate.
5. He is served cold food.
6. He is not allowed privacy during visitation
7. He is not allowed a shower or adequate
clothing prior to visitation.
8. Recreation is limited to one-half hour per
9. He is not permitted an opportunity to take
part in educational programs nor permitted
access to a general law library.
10. He is not allowed religious services nor
furnished religious reading material.
11. Some of his incoming and outgoing mail is not
The plaintiff seeks declaratory and injunctive relief
against the defendants.
It is the opinion of this Court that the motion of the
defendants is meritorious and that the instant case is
controlled by the Seventh Circuit decision in Armstrong v.
Bensinger, 479 F.2d 701 (1973) in that the allegations of the
plaintiff's complaint do not rise to the stature of a
The defendants, in support of their instant motion, have
submitted affidavits and exhibits which clearly demonstrate
the following important factors regarding the existing
1. Mattresses used in the segregation unit are
of the same type and condition as those
provided the general prison population. If an
inmate is dissatisfied with the condition of
his mattress he may direct his grievance to a
guard or other prison official. In that case
an inspection is made and if the mattress is
found to be of poor quality, it is replaced.
Further, each inmate is supplied with two
blankets and, if weather warrants, a third
blanket is provided.
2. The complex in which the segregation unit is
located is centrally heated and kept at a
temperature of approximately seventy degrees.
Each cell contains a ventilation shaft and
each ventilation shaft contains a light
fixture. Also the artificial lighting outside
the cells provide additional illumination in
the cell. Attempts to improve the lighting
conditions have been physically resisted by
3. All inmates of the segregation unit are given
access to shower facilities at least once a
week. The only exception to this rule is
where the attempts to provide such facilities
are thwarted by the conduct of the inmates
themselves. Furthermore, inmates are provided
with sanitary items in order that they may
attend to their personal hygiene in the
confines of their cells.
4. Illinois Department of Corrections
Administrative Regulation Number 807 provides
that inmates in segregation shall receive
meals per day. Plaintiff was in fact served
hot meals and such meals more than met
5. All inmates of the segregation unit are
afforded access to the exercise yard for at
least one hour per week unless prevented by
the conduct of the inmates. Plaintiff's yard
privileges were rescinded by the Disciplinary
Committee for ninety days, commencing August
28, 1972, for fighting in the guard hall.
Plaintiff had the right to be present at the
Disciplinary Hearing and answer the charges
6. There is a detailed procedure, recently
established, assuring the inmates of the
Segregation Unit the same access to legal
materials as provided the general prison
7. Illinois Department of Corrections Regulation
Number 807 provides that the prison chaplains
will visit the inmates in Segregation
regularly or upon request. Further, the
regulation states that reading and
educational materials may be ordered by the
inmates. It does not appear that the
plaintiff has ever been refused a request to
see the chaplain or secure religious
materials from him.
8. The plaintiff, being placed in Segregation,
has not lost any mail privileges enjoyed by
the general prison population. Further, the
plaintiff's mail record demonstrates that he
has enjoyed such mail privileges.
It is well settled that segregated confinement, comparable
to the Special Program Unit at Joliet, does not in itself
violate the Eighth Amendment. Burns v. Swenson, 430 F.2d 771
(8th Cir. 1970); United States ex rel. Knight v. Ragen,
337 F.2d 425
(7th Cir. 1964), cert. denied, 380 U.S. 985
, 85 S.Ct.
1355, 14 L.Ed.2d 277 (1965); United States ex rel. Miller v.
Twomey, 333 F. Supp. 1352
Federal courts have also held that allegations similar to
the specific allegations in the plaintiff's complaint fail to
state a claim upon which relief can be granted.
The mere fact that a concrete base is used to support
plaintiff's mattress does not constitute a condition "so foul,
so inhuman and so violative of basic concepts of decency" to
fall within the proscription of the Eighth Amendment. Wright
v. McMann, 387 F.2d 519 (2nd Cir. 1967). This is especially
true since plaintiff is not forced to sleep on bare concrete,
but is provided with a mattress, sheets and blankets which are
exactly the same as those provided the general prison
population. The use of the word "filthy" in this context as
was used by the plaintiff in the instant complaint has been
held to be a general conclusory allegation insufficient to
state a claim upon which relief can be granted. Adams v. Pate,
445 F.2d 105 (7th Cir. 1971). See also, Ford v. Board of
Managers, 407 F.2d 937 (3rd Cir. 1969).
In the absence of any factual allegation that the sheets and
two blankets are inadequate covering, the plaintiff's
allegations are without merit. Metcalf v. Ogilvie,
436 F.2d 361 (7th Cir. 1970); Sanberg v. Daley, 306 F. Supp. 277
The lighting conditions in the Joliet penal institution's
Special Programs Unit complex are quite superior to those
found in Adams v. Pate, supra, wherein the turning on of the
cell light only when the inmate was fed was held not to
constitute cruel and unusual punishment.
It is the opinion of this Court that the defendant's
procedure and opportunities for showers did not constitute
cruel and unusual punishment. See also Landman v. Peyton,
370 F.2d 135 (4th Cir. 1966); Sostre v. McGinnis, 442 F.2d 178
(2nd Cir. 1971).
In dealing with the medical needs of the inmates, prison
have broad discretion as to the type of medical treatment
which is demanded and federal courts will not inquire into the
adequacy or sufficiency of such medical care. United States ex
rel. Lawrence v. Ragen, 323 F.2d 410 (7th Cir. 1963). Only
when the inmate has presented "exceptional circumstances" will
the court intervene. United States ex rel. Knight v. Ragen,
supra. General allegations of negligence or inadequate medical
treatment fail to state a cause of action under the Civil
Rights Act. United States ex rel. Knight v. Ragen, supra;
Hopkins v. County of Cook, 305 F. Supp. 1011 (N.D.Ill. 1969);
Church v. Hegstrom, 416 F.2d 449 (2nd Cir. 1969). In the
instant action, the plaintiff does not contend that he has ever
been denied a request for medical care. Nor is his allegation
of "inadequate medical attention" supported by any other
factual allegation which could constitute "exceptional
circumstances." The plaintiff has failed to state a claim under
the Civil Rights Act.
The plaintiff's allegations that he was served cold food,
which is contrary to the defendants' affidavits and exhibits,
is insufficient to establish a denial of constitutional
rights. To establish such a violation plaintiff would have had
to allege that he was denied that quality or quantity of food
required for appropriate nutrition. Collins v. Schoonfield,
344 F. Supp. 257 (D.C.Md. 1972); Landman v. Royster,
333 F. Supp. 621 (E.D.Va. 1971). The plaintiff in the instant
complaint makes no such allegations.
Visitation procedures are clearly matters within the scope
of prison discipline and security. Perez v. Turner,
462 F.2d 1056 (10th Cir. 1972); Walker v. Pate, 356 F.2d 502 (7th Cir.
Any inconvenience suffered by plaintiff's lack of privacy
during visitation periods is certainly outweighed by the
state's interest in preventing the introduction of weapons or
other contraband into a penal institution. If, as it has been
held, prison authorities may bar certain visitors altogether,
surely they may require that a prison official be present
during visitation periods. See Rowland v. Wolff, 336 F. Supp. 257
(D.C.Neb. 1971); Walker v. Pate, supra.
Restricted recreation as allowed by the Special Programs
Unit has been held not to constitute cruel and unusual
punishment. Landman v. Peyton, supra; Novak v. Beto,
453 F.2d 661
(5th Cir. 1971); State ex rel. Pingley v. Coiner,
186 S.E.2d 220 (W.Va.Sup.Ct. 1972).
The portion of the instant complaint alleging a deprivation
of an opportunity to attend educational classes conducted by
the prison does not raise a constitutional question and
therefore is not a proper subject for relief under the Civil
Rights Act. Diehl v. Wainwright, 419 F.2d 1309 (5th Cir.
1970); Queen v. South Carolina Dept. of Corrections,
307 F. Supp. 841 (D.C.S.C. 1970); United States ex rel. Cleggett v.
Pate, 229 F. Supp. 818 (N.D.Ill. 1964). Likewise, denial of
access to the prison's general library is among the many
restrictions and limitations upon activity necessarily within
the discretion of prison administrators. Landman v. Peyton,
supra; Breece v. Swenson, 332 F. Supp. 837 (W.D.Mo. 1971).
Certainly the restrictions in the instant case are far less
prohibitive than those found constitutional in Sostre v.
McGinnis, 442 F.2d 178 (2nd Cir. 1971) (inmate could not buy or
receive books, magazines or newspapers).
The plaintiff's allegation that he, as other inmates in
segregation, is not allowed to participate in worship services
open to the general prison population, does not assert a
deprivation that rises to the level of a constitutional
violation. See Wright v. McMann, supra. It is clear that
inmates "justifiably segregated" while retaining their right to
religious belief, can be prohibited from attending corporate
religious services. Sharp v. Sigler, 408 F.2d 966 (8th Cir.
1969); Cooper v. Pate, 382 F.2d 518 (7th Cir. 1967); Breece v.
Swenson, supra; Cruz v. Beto, 329 F. Supp. 443 (S.D.Tex. 1970);
Belk v. Mitchell, 294 F. Supp. 800 (W.D.N.C. 1968).
Such a general allegation as the plaintiff's, that one is
denied the right to "participate in religious services" is
insufficient to state a claim upon which relief can be
Plaintiff seems to allege that certain unidentified outgoing
mail is not being forwarded by prison officials. The
plaintiff's prison mail record does not support any of these
allegations. Plaintiff does not specify by type, content or
date the pieces of mail to which he is referring. Although the
rules of pleading in federal courts are to be liberally
construed in pro se prisoner cases, Haines v. Kerner,
405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972), the Federal Rules do
not authorize complaints, such as the instant one, which are
framed in vague, general and factually unsupported allegations.
Metcalf v. Ogilvie, supra; Sanberg v. Daley, 306 F. Supp. 277
Accordingly, it is hereby ordered that the defendants'
motion to dismiss is granted.