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March 24, 1994

LOUIS C. HARRIS, etc., Plaintiff,
MICHAEL SHEAHAN, et al., Defendants.


The opinion of the court was delivered by: MILTON I. SHADUR

Louis Harris a/k/a Darrell Jones ("Harris") has tendered a self-prepared 42 U.S.C. ยง 1983 ("Section 1983") Complaint against Cook County Sheriff Michael Sheahan, the Transportation Department of the Cook County Department of Corrections ("Department"), the medical staff of Cook County Hospital ("Hospital") and the medical staff of Department's Division 6. Harris asks leave to proceed without the payment of a filing fee and also seeks the appointment of counsel on a pro bono publico basis. For the reasons stated in this memorandum opinion and order, the first motion is granted in part and denied in part, while the second motion is denied.

 Harris certainly qualifies for in forma pauperis treatment in financial terms, because his Application To Proceed In Forma Pauperis reflects no receipts of money during the past 12 months and no current assets, and his prisoner account with Department has only $ .16 to his credit. Where Harris fails in principal part is rather in his not having advanced a non-"frivolous" claim against most of the defendants in the legal sense defined in Neitzke v. Williams, 490 U.S. 319, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989) and most recently reconfirmed in Denton v. Hernandez, 118 L. Ed. 2d 340, 112 S. Ct. 1728, 1733-34 (1992).

 To avoid any possibility of mischaracterizing Harris' claims, his Statement of Claim (Complaint P IV) is copied here verbatim:

On January 5, 1994 on or about 8:00 PM, I was been transferred back to the Cook County Dept of Corrections from Markham, Illinois. I had appeared in court. When we approached 24th and Sacremento. The bus was struck by acar (model unknown) at the front of the bus. I was sitting towards the front of the bus. The weather was unbearable and driving conditions were hazardous, the car skided across a stoplight, and struck the bus driven by one correction officer(s) names unknown. The officer was driving too fast for the conditions of the road. I received head and back injuries due to the accident. I was transported to the hospital, but was denied medical attention. By Cook County Hospital and the medical staff of Division VI.
I the plaintiff is still suffering from pains, headaches, and illnesses from the accident, I was denied xrays, and medication and still is to this date. I defendant believes his back or spine is broke, and due to head injuries the plaintiff has suffered brain damage, that has resulted in memory lapses.

 As indicated both by Harris' naming of the numerous defendants and by that Statement of Claim, he asserts two different claims--one stemming from the collision of the two motor vehicles and the other from a claimed lack of medical attention to the injuries that he suffered.

 At the outset, Harris cannot proceed against Sheriff Sheahan. No possible individual responsibility has been ascribed to Sheriff, and respondeat superior principles are inapplicable in the Section 1983 context ( Monell v. Department of Social Services of City of New York, 436 U.S. 658, 691, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978)).

 As for Harris' substantive claims, it may of course be possible to characterize an individual's right to be free from unwarranted injury as a type of liberty (one of the necessary elements of a Section 1983 claim for a Due Process Clause violation). *fn1" But Daniels v. Williams, 474 U.S. 327, 333, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986) has expressly held "that injuries inflicted by governmental negligence are not addressed by the United States Constitution"--or to put it a bit differently ( id. at 332):

Far from an abuse of power, lack of due care suggests no more than a failure to measure up to the conduct of a reasonable person. To hold that injury caused by such conduct is a deprivation within the meaning of the Fourteenth Amendment would trivialize the centuries-old principle of due process law.

 That renders "frivolous" in the legal sense Harris' Section 1983 claim based on the collision itself. As for the claimed lack of medical attention, a like principle applies--Daniels, id. at 333 also quoted Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976):

Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. *fn2"

 Instead the latter seminal case, id. at 104-05 (citation and footnotes omitted) has stated the constitutional standard in these terms:

We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the "unnecessary and wanton infliction of pain," proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how ...

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