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December 3, 1981


The opinion of the court was delivered by: Aspen, District Judge:


Plaintiff William L. Isaac, an inmate at the Stateville Correctional Center ("Stateville") in Joliet, Illinois, brings this pro se civil rights action against Richard DeRobertis, Warden at Stateville, and five correctional officers seeking declaratory, injunctive, and monetary relief for the alleged violation of his constitutional rights. Before the Court are the motions of certain defendants to dismiss the complaint for failure to state a claim upon which relief may be granted and to strike plaintiff's sur reply brief.*fn1

This suit arises out of an incident that occurred on February 3, 1981, in the Cell-house B — West Segregation Unit at Stateville. The relevant allegations of the complaint are as follows. At approximately 9:00 a. m., defendant David Bunch released plaintiff from his cell so that he could attend the morning session of the prison law library. Bunch, who from prior encounters was on inimical terms with plaintiff, had released all the other inmates scheduled to attend the law library before coming to plaintiff's cell. Upset with the delay in his release, plaintiff exchanged words with Bunch and proceeded downstairs to the bullpen area where he complained about Bunch's conduct to defendant James Rabideau. When another verbal dispute broke out between plaintiff and Bunch, defendant Earl T. Jones, a correctional lieutenant, ordered Rabideau to remove plaintiff's name from the library list.

After all the inmates had left the bullpen for the library, Jones ordered plaintiff to return to his cell. Instead of complying with the order, plaintiff requested to speak to defendant Frank Moran, apparently Jones' superior. Jones then grabbed plaintiff, who was handcuffed behind his back, and started shoving him toward the stairs. When plaintiff fell, Jones, Bunch, and defendant William Sheldon picked him up and began to carry him up the stairs. Halfway up the first flight of stairs the guards dropped plaintiff causing him to slide back down the stairs on his back bumping his head on the steps. As plaintiff neared the bottom of the stairs, Jones stepped on plaintiff's face and then proceeded to stand on his neck. Plaintiff saw Moran observing these events from the doorway of his office.

When the guards attempted to carry plaintiff up the stairs for a second time, he began to resist. Jones then ordered Sheldon and Bunch to place plaintiff in a "steel-enclosed" control segregation cell. Before walking to the cell on his own accord, plaintiff requested permission to gather certain items of personal property that had fallen from his pockets during the altercation. Jones and Rabideau refused the request. Subsequent informal attempts to regain possession of the property were unsuccessful.

Shortly after his placement in control segregation, plaintiff asked for an examination by a medical technician. He was experiencing pain about his head, back, and wrists as a result of the struggle with the guards. Despite repeated verbal and written requests for medical care, plaintiff was not given any assistance for a period of six days. On February 9, 1981, a doctor gave plaintiff a cursory examination and prescribed a pain killer. According to pleadings filed by plaintiff subsequent to the complaint, he continues to experience pain and receive medical attention for injuries suffered during the encounter upon which the complaint is based.

Applying the liberal standards mandated by Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), the Court construes the allegations of the complaint to assert six claims of constitutional violations: (1) the recision of plaintiff's library privileges on February 3, 1981, deprived him of his right of access to the courts; (2) the guards' use of force against plaintiff constituted cruel and unusual punishment; (3) the denial of prompt medical attention for his injuries violated plaintiff's rights under the eighth amendment; (4) the taking of plaintiff's property was without due process; (5) the placement of plaintiff in control segregation was arbitrary and in derogation of administrative regulations; and (6) the conditions of confinement in control segregation amounted to an infliction of cruel and unusual punishment in violation of the eighth amendment.

Before addressing the merits of plaintiff's claims, the Court finds it useful to set forth the standards to be applied in appraising the sufficiency of the complaint. A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure can be granted only if it appears "beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). In making this assessment, all allegations are assumed to be true. Estelle v. Gamble, 429 U.S. 97, 99, 97 S.Ct. 285, 288, 50 L.Ed.2d 251 (1976). Moreover, because plaintiff is proceeding without benefit of counsel, the adequacy of the allegations are adjudged by standards less stringent than those applied to formal pleadings drafted by lawyers. Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176, 66 L.Ed.2d 163 (1980). With these principles in mind, the Court turns to a substantive review of the allegations to determine if they are sufficient to state a claim for relief under 42 U.S.C. § 1983.

I. Denial of Access to the Courts

Plaintiff asserts that defendants violated his constitutional right of access to the courts when they denied him library privileges on his regularly-scheduled day. Defendants contend that the denial of access to a law library on one occasion does not offend the constitutional guarantee of access to the courts. Defendants further argue that the cancellation of plaintiff's law library privileges was justified by his misconduct and that plaintiff fails to allege any resultant harm from the cancellation. In his responsive brief, plaintiff concedes that he is challenging only a temporary restriction on his law library access, but claims that the restriction caused him to miss a deadline for filing a responsive brief in United States ex rel. Issac v. Franzen, 80 C 5088 (N.D.Ill. filed Oct. 1, 1980).

The constitution does not guarantee a prisoner absolute access to a prison law library. See Bounds v. Smith, 430 U.S. 817, 830, 97 S.Ct. 1491, 1499, 52 L.Ed.2d 72 (1977). Prison officials are free to reasonably regulate the time, place, and manner in which library facilities are used so long as inmates are assured meaningful access to the courts. Knell v. Bensinger, 489 F.2d 1014, 1017 (7th Cir. 1973). Meaningful access is the touchstone. Bounds, supra, 430 U.S. at 823, 97 S.Ct. at 1495. A finding that prison officials have deprived an inmate of meaningful access to the courts cannot be sustained in the absence of some showing of prejudice. See Bach v. Coughlin, 508 F.2d 303, 308 (7th Cir. 1974).

Plaintiff's claim that defendants' revocation of his library privileges adversely affected an action he had pending in this Court is not supported by this Court's records.*fn2 Plaintiff filed his responsive brief in case 80 C 5088 on February 13, 1981. The Court has yet to rule on the motion. Since plaintiff was able to submit his brief in ample time to permit its consideration, the Court can find no merit to plaintiff's claim that defendants deprived him of his constitutional right of access to the courts.

II. Guard Abuse

Plaintiff alleges that defendants Sheldon, Jones, and Bunch physically abused him in the presence of defendant Moran. Defendants contend that the alleged force used against plaintiff was not so severe as to cross the line separating a simple battery from a constitutional tort cognizable under § 1983.

The use of force by prison guards against an inmate is not subject to scrutiny under the eighth amendment unless it is tantamount to an intentional infliction of excessive or grossly severe punishment. See Stringer v. Rowe, 616 F.2d 993, 998 (7th Cir. 1980). In determining whether a particular infliction of force upon an inmate is sufficiently severe to constitute cruel and unusual punishment, a court must consider such factors as the amount of force used, whether the use of force was reasonable and justified by the circumstances, and the extent of injury inflicted. Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 32 (1973).

When viewed in light of these factors, the complaint's allegations of guard abuse, liberally construed and accepted as true, are sufficient to withstand a motion to dismiss. The Court is not persuaded by defendants' argument that plaintiff alleged insufficient injury to give rise to a claim of constitutional magnitude. To the contrary, plaintiff asserts that the unprovoked scuffle with the guards caused him severe pain and has resulted in lasting injuries that have required continuing medical attention. Moreover, when, as alleged here, the use of force is unreasonable and not related to any perceived need to maintain order or prison discipline, the lack of extensive injury is not dispositive of the claim. See Howell v. Cataldi, 464 F.2d 272, 280-81 (3d Cir. 1972). Thus, without expressing any opinion as to the ultimate resolution of this issue, the Court concludes that it is not beyond doubt that plaintiff can prove no set of facts in support of his claim that defendants subjected him to an intentional infliction of excessive force in violation of the eighth amendment's proscription against cruel and unusual punishment.

III. Deprivation of Medical Care

Plaintiff alleges that, despite numerous written and verbal requests, he was denied medical attention for a period of six days following the February 3 incident. Defendants challenge plaintiff's claim of denial of prompt medical care on grounds that the complaint fails to disclose any relationship between defendants and the provision of medical care to plaintiff, that exhibits attached to plaintiff's pleadings show that he has received extensive medical attention from doctors and ...

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