The opinion of the court was delivered by: Gilbert, District Judge
Plaintiff, an inmate in the Tamms Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. In this case, Plaintiff presents 11 different claims, as discussed below. The basic theme of this action is Plaintiff's habit of self-mutilation and suicide attempts. On the one hand, he claims that Defendants fail to take proper steps to ensure that he cannot harm himself; on the other hand, he complains about the inhumanity of the steps they do take to prevent self-harm.
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.
On March 19, 2003, Defendants Gibson and Neighbors attempted to remove a sheet that Plaintiff had hung over his door. In the process, they kicked his hands, although he claims he presented no threat to them. Apparently Plaintiff had his hand sticking out through the hatch door; Gibson kicked the door, which then cut Plaintiff's hand. He alleges that Defendants Watts and Stewart observed this incident but failed to intervene.
Plaintiff was then removed from his cell by the tactical team and taken to the nurses' room. Plaintiff requested medical treatment for the cut on his right hand and for self-inflicted injuries to his left arm, as well as a visit from a mental health professional. He alleges that out of retaliation, Defendant Fornear did not provide him with access to a mental health professional. He also claims that Fornear subjected him to additional excessive force by causing him extreme pain while cleansing his wounds. While Fornear was dressing his wounds, he claims that Defendant Folsom twisted the cuff on his wrist, thus cutting off circulation, while Defendant Hilliard bent his injured right thumb backwards, causing him more pain. After that, Defendant Pratis touched his buttocks and scrotum, then inserted one or more fingers into his anus through his clothing.
Three claims of excessive force are suggested by these allegations: (1) against Gibson and Neighbors for kicking his hand, and against Watts and Stewart for failing to prevent that act; (2) against Fornear for causing him pain while cleansing his wounds; and (3) against Folsom and Hilliard for their actions.
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).
Applying these standards to the allegations, the Court finds that the actions of Gibson and Neighbors do not constitute excessive force; it follows that Watts and Stewart had no duty to prevent those actions. Likewise, the fact that Plaintiff experienced some pain while Fornear cleaned his wounds does not state a claim for use of excessive force. However, the Court is unable to dismiss the excessive force claims against Folsom and Hilliard at this time.
Plaintiff then invokes the Fourth Amendment, arguing that Pratis's action constituted an unlawful search of his body. Although Pratis's behavior -- essentially emulating a body cavity search through Plaintiff's clothes -- was unpleasant and perhaps unprofessional, this incident does not rise to the level of an unreasonable body search. See generally Bell v. Wolfish, 441 U.S. 520, 559 (1979); Forbes v. Trigg, 976 F.2d 308, 312 (7th Cir. 1992), cert. denied, 507 U.S. 950 (1993); Meriwether v. Faulkner, 821 F.2d 408 (7th Cir. 1987), cert. denied, 484 U.S. 935 (1987). Accordingly, this claim is also dismissed from this action with prejudice.
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); Farmer v. Brennan, 511 U.S. 825 (1994). In keeping with this standard, the Seventh Circuit has found that "the need for a mental illness to be treated could certainly be considered a serious medical need." Sanville v. McCaughtry, 266 F.3d 724, 734 (7th Cir. 2001); Wellman v. Faulkner, 715 F.2d 269 (7th Cir. 1983). 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). Allegations of "refusal" to provide medical care, without more, will not establish deliberate indifference, nor will delay, even if serious injury results. Shockley v. Jones, 823 F.2d 1068, 1072 (7th Cir. 1987).
In this case, the Court finds that Fornear's refusal to call a mental health professional on this one particular occasion, without more, does not rise to the level of an Eighth Amendment violation. Accordingly, Plaintiff's claim against Fornear for denial of mental health treatment is dismissed from this claim with prejudice.
Plaintiff vaguely alleges that Fornear's denial of a visit from a mental health professional was "due to retaliation," and prison officials may not retaliate against inmates for filing grievances or otherwise complaining about their conditions of confinement. See, e.g., Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002); DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000); Babcock v. White, 102 F.3d 267 (7th Cir. 1996); Cain v. Lane, 857 F.2d 1139 (7th Cir. 1988). Furthermore, "[a]ll that need be specified is the bare minimum facts necessary to put the defendant on notice of the claim so that he can file an answer." Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002).
In this claim, Plaintiff merely throws in the term "retaliation" without even the "bare minimum facts" to support this claim; he makes no allegation that he had engaged in any protected action that was the motivating factor behind Fornear's actions. Therefore, this retaliation claim is dismissed with prejudice.
From May 16-18, 2003, Plaintiff was on crisis watch after he was observed cutting on himself and making a noose. On May 16, Defendant Doe 1 placed him in a cell completely naked, although the cell was very cold. The next day, Plaintiff complained to Defendant Couch about the cold; she told him she would get him a blanket and foam mattress. Later that afternoon, Plaintiff asked Officer Cruise (not named as a defendant) about access to his personal property; Cruise advised him that per orders from Defendant Markel, Plaintiff could not have any personal property due to "being on security strip out." Dissatisfied with this response, Plaintiff began to cut himself again; he was later taken to the infirmary and placed in four-point restraints. While in restraints, Defendant Qualls inserted a catheter into his penis despite his objections; she told him that she was acting on orders from Defendant Chandra. Plaintiff claims that it was extremely cold in the infirmary, and the restraints were too tight on his chest and thighs. The restraints were removed after 16 hours, but he was left in the holding cell with only a smock to wear; he was not provided with a blanket and mattress until May 19.
Prisoners have an Eighth Amendment right to adequate shelter, including a right to protection from cold. See Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir. 1997). To assess whether cold cell temperatures constitute cruel and unusual punishment, courts must consider factors including "the severity of the cold; its duration; whether the prisoner has alternative means to protect himself from the cold; the adequacy of such alternatives; as well as whether he must endure other uncomfortable conditions as well as cold." Id. at 644; see also Palmer v. Johnson, 193 F.3d 346 (5th Cir. 1999) (finding that exposure to extreme cold for 17 hours could constitute Eighth Amendment violation); Henderson v. DeRobertis, 940 F.2d 1055, 1058 (7th Cir. 1991) (finding that deprivation of blankets for four days in extreme cold could constitute Eighth Amendment violation). The cold need not present an imminent threat to the inmate's health to implicate the Eighth Amendment. See Dixon, 114 F.3d at 642.
In this claim, Plaintiff makes few allegations against any specific defendant regarding the cold temperatures. He alleges that Doe initially placed him in the cell after his suicide attempt, and that Couch told him that she would bring him a mattress and blanket when he complained to her about the cold. Apparently she did not act quickly enough on that promise, as Plaintiff began to cut on himself and was taken to the infirmary a few hours later. Unfortunately, it was no warmer in the infirmary, yet Clover did not provide him with anything to protect him from the cold.
Based on the allegations in the complaint, the Court is unable to dismiss this claim against Clover, Couch and Doe at this point in the litigation. See 28 U.S.C. § 1915A.
The only medical care claim presented by this scenario is Qualls's insertion of a catheter per Chandra's instructions. However, these allegations do not suggest that either Qualls or Chandra was deliberately indifference to Plaintiff's medical needs. See Estelle, 429 U.S. at 106; 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). Accordingly, this medical care claim against Qualls and Chandra is dismissed from this action with prejudice.
After his suicide attempt, Plaintiff was placed in a crisis care watch, with no property. When he asked Cruise about access to his property, Cruise told him that per Markel's instruction, Plaintiff could not have access to his property due to his strip-out status.
The only constitutional right that might be implicated by these facts is Plaintiff's right, under the Fourteenth Amendment, to be free from deprivations of his property by state actors without due process of law. To state a claim under the due process clause of the Fourteenth Amendment, a plaintiff must establish a deprivation of liberty or property without due process of law; if the state provides an adequate remedy, a plaintiff has no civil rights claim. Hudson v. Palmer, 468 U.S. 517, 530-36 (1984) (availability of damages remedy in state claims court is an adequate, post-deprivation remedy). The Seventh Circuit has found that Illinois provides an adequate post-deprivation remedy in an action for damages in the Illinois Court of Claims. Murdock v. Washington, 193 F.3d 510, 513 (7th Cir. 1999); ...