The opinion of the court was delivered by: Joe Billy Mcdade United States District Judge
Tuesday, 15 March, 2011 12:37:27 PM
Clerk, U.S. District Court, ILCD
This cause is before the court for a merit review of the Plaintiff's claims. The court is required by 28 U.S.C. §1915A to "screen" the Plaintiff's complaint, and through such process to identify and dismiss any legally insufficient claim, or the entire action if warranted. A claim is legally insufficient if it "(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. §1915A.
The Plaintiff, a pro se prisoner, has filed this lawsuit pursuant to 42 U.S.C. §1983 against one Defendant: Lieutenant Lee Hackett. The Plaintiff alleges that Defendant Hackett used excessive force against the Plaintiff in violation of the Eighth Amendment. Specifically, the Plaintiff says on May 20, 2010, Lieutenant Hackett said he would "slap the black off" of the Plaintiff. (Comp, p. 4). The Defendant then reached out and slapped the Plaintiff across the right side of his face. Another officer asked the Plaintiff if he was okay and said he would report the incident. The Plaintiff does not claim he suffered any physical injury.
The next morning the Plaintiff was interviewed by an investigator, and was then transferred to another facility. The Plaintiff is now asking for financial compensation, and to have all good time credits restored "especially the one year I lost for an alleged staff assault charge brought against me back on September 27, 2001." (Comp, p. 6). This nine year old incident is clearly not related to the claim in the Plaintiff's complaint.
The court first notes that it appears the Plaintiff has failed to exhaust his administrative remedies for his excessive force claim. The Prison Litigation Reform Act provides:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
The Seventh Circuit has taken a strict compliance approach to exhaustion requiring a prisoner to pursue all available administrative remedies and comply with the prison's procedural rules and deadlines. Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.2002). For instance, the Illinois Department of Corrections requires that an inmate file a grievance form with the Grievance Officer within 60 days of the alleged incident.20 Ill. Admin. Code § 504.810(a). The Plaintiff has attached two grievances to his complaint which pertain to his excessive force claim. The first is dated September 29, 2010 and the second is dated October 22, 2010 (Comp, p. 9, 12). The Administrative Review Board refused to consider the untimely grievances since both were filed several months after the alleged May 20, 2010 incident.
Failure to exhaust is an affirmative defense. See Jones v Bock, 549 U.S. 199 (2007). However, "when the existence of a valid affirmative defense is so plain from the face of the complaint that the suit can be regarded as frivolous, the district judge need not wait for an answer before dismissing the suit." Walker v Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002).
Even if the Plaintiff could somehow demonstrate that he did exhaust his administrative remedies, the conduct alleged, while deplorable, does not rise to the level of a constitutional violation. The Eighth Amendment embodies the concept of proportionality. Harmelin v Michigan, 501 U.S. 957 (1991). Punishment imposed for no offense at all is clearly disproportionate. However, before this proportionality principle can even be considered, the deprivation itself must be "objectively, sufficiently serious" in order to rise to the level of an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994); see also Leslie v Doyle, 125 F.3d 1132, (7th Cir. 1997). In this case, a single slap to the Plaintiff's face causing no injury does not meet this standard. See Hill v. Vannatta, 2005 WL 332453 (7th Cir. Feb 3, 2005)(district court found that a slap causing just redness and swelling was de minimis and thus insufficient to state a claim for excessive force under the Eighth Amendment); Santiago v. Campisi, 91 F.Supp.2d 665, 668 (S.D.N.Y.2000) (Unprovoked slap on jaw was de minimis and not sufficiently repugnant to the conscience of mankind to constitute excessive use of force for Constitutional purposes); Brown v. Croce, 967 F.Supp. 101, 104 (S.D.N.Y.1997)( slapping an inmate twice amounted to nothing more than a de minimis use of force by a prison official); Romaine v ...