The opinion of the court was delivered by: Foreman, District Judge
Plaintiff, an inmate in the Pinckneyville 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, in pertinent part:
(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 that none of the claims in the complaint may be dismissed at this point in the litigation.
Plaintiff states that on January 18, 2004, he was working his prison job in the Pinckneyville Correctional Center Dietary Department when Defendant Disro "snuck upon plaintiff, violently grabbing a cup of coffee from plaintiff's hand, destroying it, and then placed plaintiff into a sort of choke-sleeper hold forcing plaintiff to lose consciousness for a short period of time by way of suffocation." Plaintiff states that during this period of unconsciousness, Defendant Disro dropped Plaintiff onto the floor. When Plaintiff "came to," Defendant Disro was kneeling over Plaintiff with one knee on his neck and the other forced into Plaintiff's side, causing great pain and dizziness, and causing Plaintiff to defecate on himself. Defendant Disro removed his hold on Plaintiff and Plaintiff went to the restroom. Upon Plaintiff's return, Defendant Disro began ridiculing and making derogatory comments about the Plaintiff and the incident.
When Plaintiff returned to his housing unit, he informed an officer of the incident and Plaintiff was taken to the health care unit and examined by medical personnel and spoke with an internal affairs investigator. Shortly thereafter, Plaintiff was put in segregation and the next day received a disciplinary report. In the report and a grievance submitted with the complaint, it appears that Plaintiff was not disciplined, but was taken to segregation on investigative status. Plaintiff filed grievances regarding the incident, but no action was taken against Defendant Disro.
Plaintiff claims that Defendant Disro's treatment of him amounted to cruel and unusual punishment in violation of the Eighth Amendment. The allegations most closely resemble a claim of unconstitutional excessive force.
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 ...