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May 22, 1992

BARRY A. MILES, Individually and on behalf of all others similarly situated, Plaintiff,


The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.


 Before the court are Barry Miles's ("plaintiff") motions to file his pro se complaint without paying the filing fee, to proceed in forma pauperis, and for appointment of counsel. As stated below, the court finds no legal basis for the claims and dismisses the action with prejudice. Therefore, the court denies these motions as moot.

 Plaintiff is an inmate at the Joliet Correctional Center in Joliet, Illinois. His two-count complaint alleges violations of 42 U.S.C. § 1983. Count I alleges that on January 30 plaintiff was confined in the segregation unit. *fn1" On that afternoon, canteen workers were serving lunch to the segregation unit inmates in cells numbered 402 through and including 426. *fn2" All the food for this group of cells comes from the same source. Shortly after all the trays were served by "the preacher," the inmate in cell 402 noticed his tray had a dead mouse in the entree. All 25 trays were returned and the rodent was given to Assistant Warden Clark. Several prison officials and canteen workers immediately investigated the incident. Two paramedics treated all exposed prisoners. Two hours later, hamburgers, coleslaw, and tater tots were served. In Count II, plaintiff complains that coffee was not served to members of his unit, although inmates in the rest of the prison did receive coffee. This, he contends, violated the Equal Protection Clause of the Fourteenth Amendment and constituted cruel and unusual punishment. For these violations, plaintiff seeks $ 50,000 in compensatory damages and $ 25,000 in punitive damages. Although plaintiff admits he has not exhausted his administrative remedies, this is no longer a basis for dismissal when the complaint only seeks monetary damages. McCarthy v. Madigan, 117 L. Ed. 2d 291, 112 S. Ct. 1081 (1992). Plaintiff's stated reason for not following the grievance procedure is that it is "a joke" and doing so would be futile. He presently seeks waiver of the filing fee, leave to proceed in forma pauperis, and appointment of counsel.


 Before the court considers whether plaintiff's motions should be granted, the court will determine whether they have a sound legal basis.


 The Eighth Amendment, as applied to the States via the Due Process Clause of the Fourteenth Amendment, prohibits prison officials from inflicting "cruel and unusual punishments" on inmates. The Supreme Court has recently clarified which standards apply when a court reviews an Eighth Amendment claim. The test has both an objective and subjective component. Wilson v. Seiter, 115 L. Ed. 2d 271, 111 S. Ct. 2321, 2324 (1991) (citing Rhodes v. Chapman, 452 U.S. 337, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981) (objective component) and Whitley v. Albers, 475 U.S. 312, 89 L. Ed. 2d 251, 106 S. Ct. 1078 (1986) (subjective component)). The objective component examines the gravity of the alleged deprivation. Hudson v. McMillian, 117 L. Ed. 2d 156, 112 S. Ct. 995, 1000 (1992). Thus, it poses the question, was the deprivation serious enough? Wilson, 111 S. Ct. at 2324 . Not every deprivation will give rise to a federal case. Inmates must tolerate some inconvenience and discomfort in their accommodations. Id. at 2327. However, punishment such as torture or burning at the stake violate any standard of decency. James v. Milwaukee County, 956 F.2d 696, 698-99 (7th Cir. 1992). The typical case falls somewhere in the middle. In such a case, the inmate must show that the deprivation was extreme to state a claim. Hudson, 112 S. Ct. at 1000 .

 The subjective component looks at the state of mind of the prison officials alleged to have violated plaintiff's rights with cruel and unusual punishments. Wilson, 111 S. Ct. at 2324. Intent is the cornerstone of the word punishment. Id. at 2325 (quoting Duckworth v. Franzen, 780 F.2d 645, 652 (7th Cir.) (Posner, J.), cert. denied, 479 U.S. 816, 93 L. Ed. 2d 28, 107 S. Ct. 71 (1986)). Consequently, only wanton conduct amounts to cruel and unusual punishment. Id. at 2325-26. The standard is not a fixed peg upon which an inmate can try to hang his cause of action, but depends on "'the kind of conduct against which an Eighth Amendment objection is lodged.'" Wilson, 111 S. Ct. at 2326 (quoting Whitley, 475 U.S. at 320). The mental state necessary to "be characterized as 'wanton' depends upon the constraints facing the official" at the time. Id. The question posed here is, therefore, did the officials act with a sufficiently culpable mind? Id. at 2324. In a prison conditions case such as this, the standard is deliberate indifference. Id. at 2327.

 First, the objective component. Here, plaintiff alleges discovery of a mouse in the victuals of a fellow inmate. Learning that vermin were used in preparation of one's meal would disturb almost anyone. However, plaintiff does not allege that he (nor anyone else for that matter) consumed the tainted food, that he required treatment by the paramedics dispatched to the area, or that he became sick or nauseated. Thus the deprivation to plaintiff was minimal at most.

 Plaintiff's claim also fails on the subjective component. Here, plaintiff must show that prison officials acted with deliberate indifference. Wilson, 111 S. Ct. at 2327 . Deliberate indifference means that the prison officials disregarded a risk of danger so substantial that knowledge can be inferred from that conduct. James, 956 F.2d at 700.

 The conduct of defendants does not meet the deliberate indifference standard. There is no indication that officials knew of any severe infestation problem in the prison kitchen. But see Johnson v. Lane, Nos. 82 C 158, 82 C 3686, 82 C 5362, 82 C 5438, 1986 WL 7944 (N.D.Ill. July 3, 1986) (noting problem). But even if there were notice, defendants reacted promptly, supplied medical assistance to those who required it, and provided substitute meals in a timely manner. This evidence, especially when ...

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