The opinion of the court was delivered by: Reagan, 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. 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 amended complaint (Doc. 32) 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 amended complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A; portions of this action are subject to summary dismissal for failure to state a claim.
At the end of the lengthy amended complaint, Plaintiff states seven counts that do not clearly correspond to the factual allegations and legal claims presented in the body of the complaint. The Court is, therefore, somewhat perplexed at Plaintiff's intentions regarding organization. The Court concludes, however, that Plaintiff's factual allegations are organized in a way that more accurately expresses the legal claims arising from the stated facts than do the counts listed at the end of the complaint. Therefore, the Court will not use those counts as described by Plaintiff at the end of the amended complaint (Doc. 32), and will instead use the framework described below, which is based on the legal claims stated in paragraphs 65-111, and 116-123 of the amended complaint.*fn1
Therefore, to facilitate the orderly management of future proceedings in this case, and in accordance with the objectives of Federal Rules of Civil Procedure 8(f) and 10(b), the Court finds it appropriate to break the claims in Plaintiff's pro se amended complaint (Doc. 32) into numbered counts, as shown below. The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The designation of these counts does not constitute an opinion as to their merit.
COUNT 1: Against unspecified defendants for unconstitutional conditions at Tamms.
COUNT 2: Against Defendants Clover, Walton, Newell, Turner, Crippen, Sherrard, Plott, Hawkins, Blankenship, and Bennefield, for unconstitutional use of excessive force and sexual assault.
COUNT 3: Against Defendants Hill, Walker, Nance, Fornear, Allen, Powers, Clover, and Chandra, for failure to report the alleged sexual assault.
COUNT 4: Against Defendants Plott, Rice, Caliper, and Powers, for intentionally exposing Plaintiff to Hepatitis C.
COUNT 5: Against unspecified defendants for unsanitary conditions of confinement.
COUNT 6: Against Defendants Smith, Massey, Childers, Watkins, Hudson, Mason, Vicks, and Bernard for unconstitutional use of excessive force.
COUNT 7: Against Defendants Smith, Bennefield, and Roper for failing to intervene to protect Plaintiff from unconstitutional use of excessive force.
COUNT 8: Against Defendants Simmons, Smith, Simpson, Bennefield, and Roper for deliberate indifference to Plaintiff's serious medical needs.
COUNT 9: Against Defendants Leslie and Swink for deliberate indifference to Plaintiff's serious medical needs.
COUNT 10: Against Defendants Rhodes, Chandra, Stevens, Clover, Couch, Peppers, and Kwasniewski for deliberate indifference to his serious mental health needs.
COUNT 11: Against Defendants Bennefield, Blankenship, Montgomery, Frey, Hinsley, Jones, Jackson, and Branche for violations of due process in forcing Plaintiff to wear a "spit hood."
COUNT 12: Against Defendants Martin, Ivy, and Mitchell for unconstitutional retaliation.
COUNT 13: Against unspecified defendants for transferring him to Tamms without due process.
COUNT 14: Against Defendants Osman, Hosch, and Bonifield for denial of access to courts.
COUNT 15: Against unspecified defendants for violations of the Americans with Disabilities Act.
COUNT 16: Against unspecified defendants for violations of the Rehabilitation Act.
Plaintiff begins his statement of facts with a number of very general allegations about the conditions at Tamms Correctional Center. Plaintiff states that the harsh conditions at Tamms, the highest security institution in the state of Illinois, are harmful to mentally ill inmates. Furthermore, the policies at Tamms are not designed to help mentally inmates progress in their behavioral development, but actually make their behavior worse. Many mentally ill inmates at Tamms do not receive mental health treatment and they are not transferred out of Tamms for mental health treatment, even when it is clear that they have decompensated psychologically. (¶¶ 65-84.)
All allegations listed in these paragraphs are far too general to state any claims under section 1983 because they do not indicate that Plaintiff, personally, was deprived of any constitutional right by a specific defendant acting under color of state law. See West v. Atkins, 487 U.S. 42, 49 (1988). Furthermore, a plaintiff lacks standing in a section 1983 action where he alleges that inmates generally are treated in contravention to the constitution, but not that plaintiff himself was so treated. See Higgason v. Farley, 83 F.3d 807, 810 (7th Cir. 1996). Accordingly, Plaintiff has failed to state a claim under section 1983 on these general factual allegations; Count 1 is therefore DISMISSED from the action with prejudice. See 28 U.S.C. § 1915A.
Plaintiff states that on April 21, 2004, Defendant Blankenship brought Plaintiff a lunch tray with a blue dot on it. Plaintiff had received a number of food trays with blue dots on them, and Plaintiff considered this blue dot to be evidence of food tampering by unspecified prison employees. Plaintiff began self-mutilating in an attempt to receive a housing change so that he would not continue to receive trays with a blue dot. Plaintiff refused to be examined by the unit nurse (Defendant Swink), so he was taken to see Defendant Powers in the health care unit, who ordered that Plaintiff be placed in restraints. Defendants Clover, Walton, Newell, Turner, and Crippen escorted Plaintiff to the restraint cell. While they were restraining him, Defendant Bennefield painfully twisted Plaintiff's hand, when Plaintiff asked him to stop, a "tussel [sic] broke out," and Plaintiff had to be wrestled to the floor. Three additional officers (Defendants Sherrard, Plott, and Hawkins) were summoned to assist in restraining Plaintiff. Plaintiff states that while all of these officers were forcefully trying to restrain him, Defendant Bennefield "rammed his finger into Plaintiff['s] anus," sexually assaulting him. Defendants Blankenship, Newell, Plott, Crippen Jr., Hawkins, and Turner covered up the sexual assault by claiming that physical force was necessary because Plaintiff had spit on them. (¶¶ 89-90.)
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 legal standards, the Court cannot dismiss Plaintiff's claim of improper use of excessive force. Accordingly, Plaintiff may proceed on Count 2 against Defendants Clover, Walton, Newell, Turner, Crippen, Sherrard, Plott, Hawkins, Blankenship, and Bennefield.
Plaintiff states that Defendants Hill, Walker, Nance, Fornear, Allen, Powers, Clover, and Chandra, failed to report the sexual assault by Defendant Bennefield, in violation of the Eighth and Fourteenth Amendments. (¶¶ 91-92.)
The Court knows of no federal reporting requirement regarding documentation of sexual assault of prisoners. If such a requirement exists it is a creature of state law. "The federal government is not the enforcer of state law." Pasiewicz v. Lake County Forest Preserve Dist., 270 F.3d 520, 526 (7th Cir. 2001). Thus, such a claim is not cognizable under section 1983, which provides a cause of action for violations of rights secured by the constitution and federal law by state actors. See West v. Atkins, 487 U.S. 42, 49 (1988). Plaintiff's creative argument that the failure to document his alleged sexual assault constituted deliberate indifference to his serious medical needs fails because he has not stated a medical need.
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).
A "serious" medical need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention. Laaman v. Helgemoe, 437 F.Supp. 269, 311 (D.N.H. 1977). See, e.g., Mahan v. Plymouth County House of Corrections, 64 F.3d 14, 18 (1st Cir. 1995); Monmouth County Correction Institution Inmates v. Lanzaro, 834 F.2d 326, 347 (3rd Cir. 1987), cert. denied, 486 U.S. 1006, 108 S.Ct. 1731, 100 L.Ed.2d 195; Sheldon v. Penzley, 49 F.3d 1312, 1316 (8th Cir. 1995); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996); Hill v. DeKalb Regional Youth Detention Ctr., 40 F.3d 1176, 1186 (8th Cir. 1994). Similarly, the Ninth Circuit regards a medical condition to be "serious" where "the failure to treat a prisoner's condition could result in further significant injury or the 'unnecessary and wanton infliction of pain,'" McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992) (quoting Estelle), and considers the following to be indications that a prisoner has a serious medical need: "The existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain." Id. at 1059-1060. We find these approaches to defining "seriousness" in the Eighth Amendment medical care context to be both sensible and workable, and shall therefore apply them here.
Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997).
The Seventh Circuit considers the following to be indications of a serious medical need:
(1) where failure to treat the condition could "result in further significant injury or the unnecessary and wanton infliction of pain"; (2) "[e]xistence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment"; (3) "presence of a medical condition that significantly affects an ...