The opinion of the court was delivered by: MICHAEL J. REAGAN, District Judge
Plaintiff, a former inmate in the Menard Correctional Center,
brings this action for deprivations of his constitutional rights
pursuant to 42 U.S.C. § 1983. Plaintiff previously was granted
leave to proceed in forma pauperis, and he has tendered his
initial partial filing fee as ordered.
This case is now before the Court for a preliminary review of
the complaint pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening. The court shall review, before
docketing, if feasible or, in any event, as soon as
practicable after docketing, a complaint in a civil
action in which a prisoner seeks redress from a
governmental entity or officer or employee of a
(b) Grounds for Dismissal. On review, the court
shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the
(1) is frivolous, malicious, or fails to state a
claim on which relief may be granted; or
(2) seeks monetary relief from a defendant who is
immune from such relief.
28 U.S.C. § 1915A. An action or claim is frivolous if "it lacks
an arguable basis either in law or in fact." Neitzke v.
Williams, 490 U.S. 319
, 325 (1989). Upon careful review of the
complaint and any supporting exhibits, the Court finds it
appropriate to exercise its authority under § 1915A; this action is frivolous and thus subject to summary dismissal.
Plaintiff makes three basic allegations. First, Plaintiff
states that defendant Joe Harper, a social worker, intercepted a
letter Plaintiff wrote to a prison psychiatrist relating his
"emotional disorder." After reading the letter, Harper signed an
order committing Plaintiff to "shock detention" for three days
and nights. According to Plaintiff the detention "was unlawful to
the point of war time torture" and constituted "deliberate
Prison officials have a duty, in light of the Eighth
Amendment's prohibition against cruel and unusual
punishment, to "ensure that inmates receive adequate
food, clothing, shelter, and medical care." Farmer
v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970,
128 L.Ed.2d 811 (1994). To determine whether an inmate's
Eighth Amendment rights were violated by a
deprivation, we examine the alleged violation both
objectively and subjectively. See id. at 834,
114 S.Ct. 1970. "First, the deprivation alleged must be,
objectively, sufficiently serious." Id. (quotation
omitted). Second, the mental state of the prison
official must have been "one of deliberate
indifference to inmate health or safety." Id.
Sanville v. McCaughtry, 266 F.3d 724
, 733 (7th Cir. 2001).
Based on this standard, Plaintiff's claim must be dismissed
because Plaintiff has not stated a constitutional claim. To the
extent the alleged segregation was disciplinary in nature, a
three-day segregation is not sufficiently serious to constitute
cruel and unusual punishment under the Eighth Amendment. See
Leslie v. Doyle, 125 F.3d 1132, 1135 (7th Cir. 1997). To the
extent the segregation was for psychological observation, and the
Court believes it was, it cannot violate the Eighth Amendment
because Plaintiff has made no showing that Defendant Harper acted
with deliberate indifference to Plaintiff's health or safety.
Second, Plaintiff states that on July 18, 2004, defendant Brian
confiscated Plaintiff's walk slow and low bunk permits, telling
Plaintiff that they had been revoked. Plaintiff filed numerous
grievances. On August 20, 2004, after it was determined that the
permits had not been revoked, they were reissued. Plaintiff
states that in the 28-day period in which he did not have the
permits, he stayed in his cell, missing both lunch and dinner meals each day,
because he feared a "trap" or "set up" against him if he left his
cell. It is difficult to tell specifically which constitutional
right Plaintiff is alleging was violated, but the Court believes
that Plaintiff is complaining that his medical permits were
effectively revoked. The Court will construe this claim as one
for deliberate indifference of Plaintiff's medical needs.
The Supreme Court has recognized that "deliberate indifference
to serious medical needs of prisoners" may constitute cruel and
unusual punishment under the Eighth Amendment. Estelle v.
Gamble, 429 U.S. 97, 104 (1976). However, "negligence alone, or
simple malpractice, is insufficient to state a claim for relief,"
Kelly v. McGinnis, 899 F.2d 612, 616 (7th Cir. 1990), as is the
provision of medical treatment other than that preferred by the
inmate. Estelle, 429 U.S. at 107. See also Jones v. Simek,
193 F.3d 485, 489 (7th Cir. 1999); Steele v. Choi, 82 F.3d 175,
178 (7th Cir. 1996), cert. denied, 519 U.S. 897 (1996).
In order to state a claim of cruel and unusual
punishment under the Eighth Amendment, a prisoner
must allege "`acts and omissions sufficiently harmful
to evidence deliberate indifference to serious
medical needs,'" Benson v. Cady, 761 F.2d 335, 340
(7th Cir. 1985), quoting Estelle v. Gamble,
429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251
(1976). "[T]he infliction of suffering on prisoners
can be found to violate the Eighth Amendment only if
that infliction is either deliberate, or reckless in
the criminal law sense." Duckworth [v. Franzen],
780 F.2d [645,] 652-53 [(7th Cir. 1985), cert.
denied, 107 S.Ct. 71 (1986)]. Negligence, gross
negligence, or even "recklessness" as that term is
used in tort cases, is not enough. Id. at 653.
Shockley v. Jones, 823 F.2d 1068
, 1072 (7th Cir. 1987).
Allegations of "refusal" to provide medical care, without more,
will not establish deliberate indifference, nor will delay, even
if serious injury results. Id.
Based on these standards, Plaintiff has not stated a claim of
constitutional dimension. Although the Court sympathizes that
Plaintiff had to suffer as a result of the misbehavior of a
Corrections Officer, the temporary loss of his walk slow and low
bunk permits does not rise to the level of deliberate indifference to Plaintiff's serious medical
needs. It is also unfortunate that Plaintiff had to wait a full
month before prison administrators discovered the error, but the
fact remains that Plaintiff was not denied medical care to an
extent that violated the constitution.
Third, Plaintiff states that he was sentenced improperly and in
violation of Blakely v. Washington, 124 S. Ct. 2531 (2004).
Plaintiff may not challenge his sentence in an action under
42 U.S.C. § 1983. Challenges to the fact or duration of a state
prisoner's confinement must be brought in a habeas action
pursuant to 28 U.S.C. § 2254. See Preiser v. Rodriguez,
411 U.S. 475 (1973); DeWalt v. Carter, 224 F.3d 607, 613-617 (7th
Finally a word about Plaintiff's pending motion for injunction
is in order. In the motion (Doc. 9) and amended motion (Doc. 11),
Plaintiff asks the Court to issue an injunction in a pending
Illinois state probate case regarding the estate of his deceased
mother. The Court does not have jurisdiction over matters of
state law. See 28 U.S.C. §§ 1331, 1332. To the extent that
Plaintiff is asking the Court to consider the state claims under
its supplemental jurisdiction, the Court declines to exercise
this power. See 28 U.S.C. § 1367.
In summary, Plaintiff's complaint does not survive review under
§ 1915A. Accordingly, this action is DISMISSED with prejudice.
Plaintiff is advised that the dismissal of this action will count
as one of his three allotted "strikes" under the provisions of
28 U.S.C. § 1915(g). All pending motions in the case are DENIED as