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SMALLWOOD v. RENFRO

February 23, 1989

ARTHUR SMALLWOOD, Plaintiff,
v.
JERRY RENFRO,1 et al., Defendants



The opinion of the court was delivered by: SHADUR

 MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 Arthur Smallwood ("Smallwood") has sued Jerry Renfrow ("Renfrow"), Jay Fairman ("Fairman"), Stacey McKinley ("McKinley"), *fn2" Donald Cartwright ("Cartwright") and Robert Coupland ("Coupland") under 42 U.S.C. § 1983 ("Section 1983"), asserting violations of Smallwood's rights under the Eighth *fn3" and Fourteenth Amendments *fn4" stemming from an incident at Joliet Correctional Center ("Joliet"). All defendants have now moved for summary judgment under Fed. R. Civ. P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, the motion is granted in part and denied in part.

 Facts5

 Smallwood is a prisoner incarcerated at Joliet. At 6 p.m. September 9, 1987 Smallwood was involved in a fight in the prison library with fellow inmate Antonio Harris (D. Jt. 12(l) para. 7). *fn6" Smallwood's lip was cut during the fight (id. para. 8; Smallwood Dep. 10-11). Smallwood was later given a "disciplinary ticket" (Smallwood Dep. 35).

 Correctional Officer Eichelman (not a defendant here) stopped the fight and summoned his superior, Lieutenant Renfrow, to the library (D. Jt. 12(l) paras. 2, 10). When Renfrow arrived Smallwood asked to go to the hospital. Renfrow denied the request and ordered Smallwood to return to the dorm (Smallwood Dep. 16). Renfrow did not escort Smallwood back there (D. Jt. 12(l) para. 12).

 Sergeant Coupland met Smallwood when he arrived at the dorm (id. para. 13). Coupland started to let Smallwood go to the hospital, but Renfrow (also Coupland's superior officer) stopped Smallwood. Renfrow says he did not believe Smallwood's injury was serious and he knew a medical technician would be available in the dorm to treat Smallwood (Renfrow Aff. paras. 5, 7). Smallwood returned to his dorm and wrote out a grievance (D. Jt. 12(l) para. 15). Renfrow says Smallwood was then treated by a medical technician that same evening (Renfrow Aff. para. 8). Smallwood denies he was treated that day (Smallwood Dep. 39), and his version will of course be accepted on that score.

 At about 7 p.m. Major Cartwright, duty warden at the time, visited Smallwood's dorm (D. Jt. 12(l) para. 16). Smallwood told Cartwright he needed to go to the hospital (Smallwood Dep. 20), but Cartwright deferred to Renfrow's decision (D. Jt. 12(l) para. 17). Though Cartwright does not recall seeing or talking to Smallwood (Cartwright Aff. para. 5), Smallwood says that after denying his request to go to the hospital Cartwright told him to pack up his belongings because he was going to the segregation unit (Smallwood Dep. 21). Again Smallwood's account is credited here.

 Smallwood packed his belongings and then slept until about 9 p.m. (id.). Coupland then arrived and told Smallwood to "get your shit ready, because Lieutenant Renfrow is on his way up here to get you" (id.). When Smallwood questioned Coupland's orders, Coupland said (id.):

 Renfrow then arrived at the dorm. After a short delay Smallwood and Renfrow started toward the segregation unit. On the way Smallwood complained about being taken to segregation (D. Jt. 12(l) para. 23). At some point during the trip Renfrow grabbed Smallwood by the neck and choked him (Smallwood Dep. 26-27). Renfrow also hit Smallwood on the arm with a radio (id. 29). Renfrow's denial of having struck or choked Smallwood (Renfrow Aff. para. 10) must be and is discredited on the current motion.

 Smallwood spent two days in segregation (D. Jt. 12(l) para. 24). During that time he never asked for medical assistance (id. para. 25). However, on the morning of September 11 a nurse did examine Smallwood (Smallwood Dep. 41). Smallwood then had a bruise on his arm (D. Jt. 12(l) para. 26). In addition the nurse said it looked as if Smallwood's lip needed stitches, but you could not stitch an old wound after 24 hours (Smallwood Dep. 41). Smallwood's arm was x-rayed on September 20. It was not fractured (Smallwood Mem. Ex. 2).

 Smallwood filed a grievance with the Institutional Inquiry Board ("Board")(D. Jt. 12(l) para. 27). Board Chairman McKinley interviewed both Smallwood and Renfrow. Smallwood admits McKinley followed all the required procedures in investigating his grievance (D. Jt. 12(l) para. 30). Board ultimately held Smallwood's grievance was "without foundation" (Smallwood Dep. 47).

 Contentions of the Parties

 When this Court found Smallwood's initial self-prepared complaint passed the threshold non-"frivolousness" test to permit in forma pauperis filing, this Court followed its almost universal practice of appointing counsel to represent him pro bono publico. As frequently occurs, that ultimately resulted in an Amended Complaint ("Complaint") prepared by appointed counsel. It comprises two counts, each of which sues all defendants "in both their individual and official capacities" (Complaint para. 10). Count I asserts violations of the Eighth Amendment's prohibition against cruel and unusual punishment and the Fourteenth Amendment's guaranties of equal protection and due process. It seeks $ 5,000 in compensatory damages, $ 10,000 in punitive damages and costs from all defendants jointly and severally.

 Count II is confusing. It alleges a failure to "instruct, supervise, control and discipline," seeks the same damages as in Count I and names the same individuals as defendants. Even though it incorporates all of Count I's substantive allegations, Count II makes no mention of the Eighth Amendment, alleging only Fourteenth (and Fifth) Amendment violations. *fn7" Count II also seeks compensatory (but not punitive) damages from "Joliet Correctional Center" -- though that is neither a named defendant nor a legal entity.

 Defendants respond with three arguments:

 
1. All defendants except Renfrow lack the requisite personal involvement to be liable under Section 1983.
 
2. Even viewed in Smallwood's favor, the facts do not support his constitutional claims.
 
3. To the extent defendants are sued in their individual capacity, they are entitled to qualified immunity, while the asserted official-capacity claims are barred by the Eleventh Amendment.

 This opinion will adopt a somewhat different sequence, starting with the Eleventh Amendment analysis.

 Eleventh Amendment

 
An official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. . . . It is not a suit against the official personally, for the real party in interest is the entity.

 More recently Shockley v. Jones, 823 F.2d 1068, 1070 (7th Cir. 1987) (citations omitted) has repeated the identical proposition:

 
A suit for damages against a state official in his or her official capacity is a suit against the state for Eleventh Amendment purposes.

 That being so, Graham, 473 U.S. at 169, 105 S. Ct. at 3107 (footnote and citations omitted) teaches:

 
The Court has held that, absent waiver by the State or valid congressional override, the Eleventh Amendment bars a damages action against a State in federal court. . . . This bar remains in effect when state officials are sued for damages in their official capacity. *fn8"

 Nor is the rule different in actions brought under Section 1983, which "was not intended to abrogate a State's Eleventh Amendment immunity" ( id. at 169 n.17). And as to the specific kind of lawsuit involved here, Shockley, 823 F.2d at 1070 held:

 
Illinois did not consent to suit in the statute creating the Illinois Department of Corrections, Ill.Ann. Stat. ch. 38, paras. 1001-1201 (Smith-Hurd 1986) . . . .

 Thus any claims by Smallwood against the officers in their official capacities are barred by the Eleventh Amendment. Those ...


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