The opinion of the court was delivered by: Herndon, District Judge
Plaintiff, formerly an inmate in the Menard Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff also seeks leave to proceed in forma pauperis, and the Court finds that he is, in fact, indigent. Therefore, the motion for leave to proceed in forma pauperis (Doc. 2) is GRANTED.*fn1
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 governmental entity.
(b) Grounds for Dismissal.-- On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint--
(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; portions of this action are legally frivolous and thus subject to summary dismissal.
In January 2004, Plaintiff got into a verbal altercation with Defendant Smith; apparently Smith made some derogatory comments about Plaintiff's race and religion.*fn2 This altercation led to a decision to take Plaintiff to segregation; he was handcuffed by Defendant Stevens. Plaintiff asked Stevens to loosen the cuffs due to a prior injury to his left arm. This request was denied, and Plaintiff alleges that he was then beaten without provocation by Defendants Smith, Stevens and Garnett.
The intentional use of excessive force by prison guards against an inmate without penological justification constitutes cruel and unusual punishment in violation of the Eighth Amendment and is actionable under Section 1983. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir. 2000). "[W]henever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson, 503 U.S. at 6-7. An inmate seeking damages for the use of excessive force need not establish serious bodily injury to make a claim, but not "every malevolent touch by a prison guard gives rise to a federal cause of action. . . . [the] prohibition of 'cruel and unusual' punishment necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort 'repugnant to the conscience of mankind.'" Id. at 9-10; see also Outlaw v. Newkirk, 259 F.3d 833, 837-38 (7th Cir. 2001).
Based on these standards, the Court is unable to dismiss the excessive force claim against Smith, Stevens and Garnett at this point in the litigation. See 28 U.S.C. § 1915A.
Plaintiff also lists Jay Merchant as a defendant in the caption of his complaint. However, the statement of claim does not include any allegations against him, and "[a] plaintiff cannot state a claim against a defendant by including the defendant's name in the caption." Collins v. Kibort,143 F.3d 331, 334 (7th Cir. 1998). Therefore, Plaintiff has failed to state a claim against Merchant, who shall be dismissed from this action.
IT IS HEREBY ORDERED that Defendant MERCHANT is DISMISSED from this ...