Petition — Duckworth v. Adams

fi.

Supreme Court, U

~ ’ e a

FILED

SCT 1 I979

JR CLERM

IN THE ee

Supreme Court of the United States

OctoBer TERM, 1979

° 49-536

Jack R. Duckwortu, Joe F. Koziowski,

Pete G. YouncsiLoop, Bos Gtiancy,

R. Suriner, Ropney Kets,

Ronatp BatcuHetor, G. WILKINS,

Brayon GLICK,

Petitioners,

N

VS.

Biturr R. Apams,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

THeopore L. SENDAK

Attorney General of Indiana

Davip A. ARTHUR

Deputy Attorney General

Attorneys for Petitioners

Office of Attorney General

219 State House

Indianapolis, Indiana 46204

Telephone: (317) 232-6332

IN THE

Supreme Court of the United States

OctoBer TERM, 1979

NO.

Jack R. Duckwortn, Joe F. Koztowsk1,

Pete G. Youncsioop, Bos Gtiancy,

R. Suriner, Ropney Kets,

Rona_p Batcuetor, G. WILKINS,

Brayon GLIck,

Petitioners,

VS.

Biturre R. Apams,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

TuHeopore L. SENDAK

Attorney General of Indiana

Davin A. ArTHUR

Deputy Attorney General

Attorneys for Petitioners

Office of Attorney General

219 State House

Indianapolis, Indiana 46204

Telephone: (317) 232-6332

TABLE OF CONTENTS

Page

eS oa 4a Facade ae eee ee wee eens il

PET eT eC eer eT eter re 2

I or hins ee ae nae ek enna Re eke ERO ES tis 2

Questions Presented for Review .................45. 2

Constitutional and Statutory Provisions Involved.... 2

tr OR es etenen eansndens 3

Facts Material to the Consideration of the

PG ihc cas ve sset ken seca ns 3

Reasons for Allowance of the Writ

I. The Seventh Circuit Erred in Considering the

Appeal herein when the Notice of Appeal was

Pee Five 1G) GO LD 6 os cos eos cece denne 4

II. The Seventh Circuit has erroneously Expanded

the Role of Federal Courts by Reversing the

District Court’s Dismissal of a Complaint and

thereby Requiring that Court to Evaluate the

Minutiae of Daily Prison Routine ........... 6

I sak cs hoe aae Kee S eae be eNOS 10

Appendix

Order of the Seventh Circuit ................... A-1

Memorandum Opinion of the District Court ..... A-10

Judgment of the District Court ................. A-25

TABLE OF AUTHORITIES

Cases Page

Aikens v. Lash, 371 F. Supp. 482 (N.D. Ind. 1974) ... 10

Baxter v. Palmigiano, 425 U.S. 308 (1976)........... 9

Bell v. Wolfish, __. U.S. ____., 99 S. Ct. 1861

CDT) 05 enc nccvedudeee tee 8

Brainerd v. Beal, 498 F.2d 901 (7th Cir. 1974),

cert. denied, 419 U.S. 1069, reh. denied,

AMO USD. GAB. vinccccdeannetee eee eee 5

Browder v. Director, Illinois Department of Correction,

434 O23. S67 (0008) .2dccksteadenee ee 4,5

Dunn v. Henderson, 446 F.2d 1398 (5th Cir. 1971)... 5

Durel v. United States, 299 F.2d 583 (5th Cir. 1962) .

Estelle v. Gamble, 429 U.S. 97 (1976) ........... Ricag ae

Fallen v. United States, 378 U.S. 139 (1964) ......... 5

Files v. City of Rockford, 440 F.2d 811 (7th Cir. 1971). 5

Fine v. Paramount Pictures, Inc., 171 F.2d 571

(tin Ci. BERD .. <cnindéncn eee ae 5

Four Certain Unnamed Inmates v. Hall, 550 F.2d 129

(ist Cie. S607). ..s.ccnccdedicenaeeeeeee ees 9

Glidden Company v. Zdanok, 370 U.S. 530 (1962) ... 5

Gregg v. Georgia, 428 U.S. 153 (1976) .............. 8

Jones v. North Carolina Prisoners’ Labor Union,

433 US. 119 C079). ..:ccksscsanckeeeeeeseeee 8

Lashley v. Ford Motor Co., 518 F.2d 749 (4th Cir.1975) 5

Montanye v. Haymes, 427 U.S. 236 (1976) ........... 9

Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977),

cert. denied, U.S. ____., 98 S. Ct. 3144 (1978). 8

Pell v. Procunier, 417 U.S. 817 (1974) ............... 7

Price v. Johnston, 334 U.S. 266 (1948) .............. 7

Reed v. People of the State of Michigan,

986 F.2d S00 (th Ci. TGGB) oc cc ccecicvcccesees 5

Richland Knox Mutual Ins. Co. v. Kallen,

376 F.2d 360 (6th Cir. 1967) ............0ceeeeees 5

ii

Statutes

Page

Re EO cake Nati eras ph acta keckaunewes 2

oe Pere rrr Tt Pere reer ere 2

ee es sy as ga nV eae wee eee ee a 2,8

Rules

Rule 19(1)(b), Rules of the Supreme Court of the

os. al ble charg ies sass eae oe ee 2

Rule 4, Federal Rules of Appellate Procedure ....... 3, 4

ili

IN THE

Supreme Court of the United States

Octoser Term, 1979

NO.

Jack R. Duckwortnu, Joe F. Koztowsk1,

Pete G. YouncsLoop, Bos Guiancy,

R. Suriner, Ropney Keitu,

Rona.p BartcuHe.or, G. WILKINS,

Brayon GLuick,

Petitioners,

VS.

Bituie R. Apams,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioners, Jack R. Duckworth, Joe F. Kozlowski, Pete

G. Youngblood, Bob Glancy, R. Shriner, Rodney Keith,

Ronald Batchelor, G. Wilkins; and Brayon Glick, respect-

fully pray this Court issue a Writ of Certiorari to review

the judgment of the United States Court of Appeals for the

Seventh Circuit (hereafter Seventh Circuit), entered in

cause number 78-1109 on July 3, 1979, which reversed the

judgment of the United States District Court for the

Northern District of Indiana, South Bend Division (hereaf-

ter District Court).

OPINIONS BELOW

The order of the Seventh Circuit issued on July 3, 1979,

has not been officially reported. A copy of said order is

]

2

appended hereto at page A-1. The December 5, 1977,

opinion of the District Court has not been officially re-

ported. A copy of said opinion is appended hereto at page

A-10. Some typographical errors have been corrected.

JURISDICTION

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1254(1) and Rule 19(1)(b) of the Rules of this

Court, to review a decision of the Seventh Circuit that is

in conflict with applicable decisions of this Court.

The decision of the Seventh Circuit was entered on July

3, 1979. This Petition is timely in that it is filed prior to

the expiration of the ninety (90) day period allowed by 28

U.S.C. § 2101(c). .

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Seventh Circuit erred in considering

the appeal herein when the notice of appeal was filed five

(5) days late.

2. Whether the Seventh Circuit has erroneously ex-

panded the role of Federal courts by reversing the District

Court’s dismissal of a complaint and thereby requiring

that Court to evaluate the minutiae of daily prison rou-

tine.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Eighth Amendment to the Constitution of the Unit-

ed States provides as follows:

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments

inflicted.

42 U.S.C. § 1983 provides as follows:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory, subjects, or causes to be sub-

3

jected, any citizen of the United States or other

person within the jurisdiction thereof to the depri-

vation of any rights, privileges, or immunities se-

cured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in

equity, or other proper proceeding for redress.

Rule 4, Federal Rules of Appellate Procedure provides,

in pertinent part, as follows:

Appeals in Civil Cases. In a civil case (including

a civil action which involves an admiralty or mari-

time claim and a proceeding in bankruptcy or a

controversy arising therein) in which an appeal is

permitted by law as of right from a district court to

a court of appeals the notice of appeal required by

Rule 3 shall be filed with the clerk of the district

court within 30 days of the date of the entry of the

judgment or order appealed from; but if the United

States or an officer or agency thereof is a party, the

notice of appeal may be filed by any party within

60 days of such entry. If a timely notice of appeal is

filed by a party, any other party may file a notice of

appeal within 14 days of the date on which the first

notice of appeal was filed, or within the time

otherwise prescribed by this subdivision, whichever

period last expires.

STATEMENT OF THE CASE

This Petition arises from the reversal by the Seventh

Circuit of a decision by the District Court in the case of

Adams v. Duckworth et. al., Cause No. S77-35 whereby the

District Court dismissed a purported civil rights complaint

filed by Respondent (Plaintiff below).

Facts Material to the Consideration of the

Questions Presented

Respondent, a prisoner at the Indiana State Prison, filed

the first complaint in this action on March 7, 1977, pur-

porting to allege violations of his Eighth Amendment

4

rights. This complaint was supplemented on April 7 and

July 28, adding the names of additional defendants and

asserting violations of First and Fourteenth Amendment

rights. Petitioners (Defendants below) moved to dismiss

the original and first supplemental complaints on May 2,

1977, and the second supplemental complaint on Septem-

ber 7, 1977. The District Court issued its Memorandum

Opinion and Judgment dismissing this action on Decem-

ber 5, 1977. See Appendix at page A-10. Respondent’s

notice of appeal was filed on January 9, 1978. The Seventh

Circuit reversed the judgment of the District Court on

July 3, 1979. See Appendix at page A-1.

REASONS FOR ALLOWANCE OF THE WRIT

I.

The Seventh Circuit Erred in Considering

the Appeal herein when the Notice of Appeal

was Filed Five (5) Days Late

Consideration of the appeal in this case was precluded

in the Seventh Circuit by reason of Rule 4(a), Federal

Rules of Appellate Procedure. In rendering its decision,

the Seventh Circuit is thus in conflict with an applicable

decision of this Court in Browder v. Director, Illinois

Department of Corrections, 434 U.S. 257 (1978), in which

the Court held:

This 30-day time limit is “mandatory and jurisdic-

tional.” (Citations omitted.) The purpose of the rule

is clear: it is “to set a definite point of time when

litigation shall be at an end, unless within that

time the prescribed application has been made;

and, if it has not, to advise prospective appellees

that they are free of appellant’s demands. Any

other construction of the statute would defeat its

purpose.” (Citation omitted.) Jd., at 264.

5

A notice of appeal is a simple instrument to prepare and

file. Files v. City of Rockford, 440 F.2d 811 (7th Cir. 1971).

The Rule applies to all parties wishing to appeal, and

applies to state prisoners. Dunn v. Henderson, 446 F.2d

1398 (5th Cir. 1971). While this Court has overlooked

untimely filing by a prisoner if he has made every effort to

comply, Fallen v. United States, 378 U.S. 139 (1964), it

cannot be said in the present case that Respondent made

such effort. The record contains no showing of, or attempt

to show, excuseable neglect. See, Brainerd v. Beal, 498

F.2d 901 (7th Cir. 1974), cert. denied, 419 U.S. 1069, reh.

denied, 420 U.S. 913. The judgment of the District Court

was entered on December 5, 1977. Respondent signed his

notice on the thirtieth day, January 4, 1978. As a prisoner,

he knew that the notice would have to be mailed to

the District Court and could not arrive on January 4. No

time is allowed for mailing. Lashley v. Ford Motor Co., 518

F.2d 749 (4th Cir. 1975). It is the date of filing rather than

the date on which the notice is signed that controls. Durel

v. United States, 299 F.2d 583 (5th Cir. 1962).

While Petitioners did not raise the untimely filing in the

Seventh Circuit, it is a question that the Courts of Appeal

may consider sua sponte. Richland Knox Mutual Ins. Co. v.

Kallen, 376 F.2d 360 (6th Cir. 1967). The Seventh Circuit

made no mention of the late filing. It is an issue that the

Courts of Appeal cannot waive or modify, Reed v. People of

the State of Michigan, 398 F.2d 800 (6th Cir. 1968), and

therefore one that the Courts must consider whether ar-

gued or not. Fine v. Paramount Pictures, Inc., 171 F.2d

571, 574 (7th Cir. 1948). As timely filing is jurisdictional,

Browder v. Director, supra, it is an issue that can be raised

at any stage of the proceedings. See, Glidden Company v.

Zdanok, 370 U.S. 530, 535-36 (1962).

The Seventh Circuit should have dismissed the appeal

for lack of jurisdiction, and in considering the appeal and

reversing the judgment of the District Court, the Seventh

Circuit is clearly in conflict with this Court’s very recent

decision in Browder.

6

Il.

The Seventh Circuit has Erroneously

Expanded the Role of Federal Courts by

Reversing the District Court’s

Dismissal of a Complaint and Thereby

Requiring that Court to Evaluate the

Minutiae of Daily Prison Routine

The complaint and supplements comprise approximately

fifty handwritten pages listing many grievances. The

Conduct Adjustment Board (the institutional “court”)

found Respondent guilty of possessing marijuana and

money and sentenced him to a term in segregation. He

was to serve the term in the I-Cellhouse Detention Unit

(“I.D.U.”). He seeks to raise several claims, none of which

is of constitutional magnitude. He complains that he was

stripped and searched while other offenders were not

stripped; that he has been locked up for investigation and

released without being charged; that he was denied a visit

with a particular person; that he was not allowed to attend

religious services while in segregation; that he was denied

the use of the law library on weekends; that the adminis-

trative appeals might be determined after the sentence

had been served; that the medication he received was

inadequate; that he suffered the effects of “mace” sprayed

at adjoining cells; that property was lost when he was

moved to the segregation unit; that the visiting room was

too small; that he did not have adequate access to the

telephones; that mail was delayed or lost; that he was not

able to get a new lightbulb until the morning; that he

could not get matches on demand; that he could not get a

change of linen if Monday is a holiday; that on certain

occasions he did not get certain foods; that coffee is not

served with the evening meal; that one day in June, 1977,

the heat was left on; that mentally ill prisoners were

housed in nearby cells; that the Conduct Adjustment

Board “falsely” continued his case thereby raising the

inference that it was not the actual decision maker and

therefore was not impartial; that the Board only recorded

7

those facts that supported its decision; that certain officers

lied in their reports; that the periodic review of the status

of those in segregation was undertaken by the Board; and,

that conditions in I[.D.U. are unsanitary. Respondent

sought injunctive relief in his original complaint and

monetary damages in his supplemental complaints.

The complaint and supplements are actually a compen-

dium of petty grievances and disagreements. No single

claim states a violation of a constitutional right. The

Seventh Circuit erred in reversing the judgment of the

District Court — an error that would turn the District

Court into a forum for a grievance session for any inmate

who dislikes the manner in which the State administers

the institution and who lists enough grievances. This is

clearly in conflict with decisions of this Court.

This Court has recognized certain rights that are re-

tained even in prison. However, “[{l]Jawful incarceration

brings about the necessary withdrawal or limitation of

many privileges and rights, a retraction justified by the

considerations underlying our penal system.” Price uv.

Johnston, 334 U.S. 266, 285 (1948). Given that fact, and

given the fact that Respondent is merely presenting a

series of minor inconveniences that in no way could or do

amount to a violation of the Constitution, the District

Court should not be required to listen to such petty griev-

ances, but should be allowed to decermine, as it did, that

the matters sought to be raised are matters on which it

must defer to the decisions of corrections officials. See, Pell

v. Procunier, 417 U.S. 817 (1974).

Because the realities of running a penal institu-

tion are complex and difficult, we have also recog-

nized the wide-ranging deference to be accorded the

decisions of prison administrators. We noted in Pro-

cunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800,

1867, 40 L.Ed.2d 224 (1974) that

“courts are ill equipped to deal with the increas-

ingly urgent problems of prison administration

and reform. Judicial recognition of that fact

8

reflects no more than a healthy sense of realism.

Moreover, where state penal institutions are

involved, federal courts have a further reason

for deference to the appropriate prison authori-

ties.” See also, Cruz v. Beto, 405 U.S. 319, 321,

92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1971).

Jones v. North Carolina Prisoners’ Labor Union,

433 U.S. 119, 126 (1977).

There are many competing philosophies and theories of

corrections, and the courts are

not to exercise judicial power for the attainment of

what [judges] as individuals might like to see ac-

complished in the way of ideal prison conditions.

There are those who would argue that tmprison-

ment in any form is cruel and unusual. Newman v.

Alabama, 559 F.2d 283 (5th Cir. 1977), cert. denied,

____ U.S. ____ , 98 S.Ct. 3144 (1978).

_ This was most recently pointed out by this Court in Bell

v. Wolfish, ___ U.S. ____ , 99 S.Ct. 1861 (1979), in which

this Court deferred to the federal authorities responsible

for running the Metropolitan Correction Center in New

York. That the Petitioners are officials and officers of a

state institution is an additional reason for judicial re-

straint. Jones, supra, at 126.

The District Court clearly followed the decisions of this

Court that were ignored by the Seventh Circuit 42 U.S.C.

§ 1983 was never intended tg@:serve as a basis for allowing

Federal courts to intervene in purely administrative mat-

ters. The Eighth Amendment proscribes conduct that con-

stitutes “unnecessary and wanton infliction of pain.”

Gregg v. Georgia, 428 U.S. 153, 173 (1976); see also, Estelle

v. Gamble, 429 U.S. 97 (1976).

No condition alleged in any of the complaints or sup-

plements is of constitutional magnitude. The conditions,

practices and acts alleged may seem uncomfortable and

displeasing to some, but it must be kept in mind that

Respondent is a prisoner and is living in prison. There is

9

no right to maximum comfort or to have a particular theory

of penology put into effect. The “cumulative impact”

approach taken by the Seventh Circuit (See Appendix at p.

A- ) is not supported by decisions of this Court. In Bell v.

Wolfish, supra, this Court considered each condition and

practice separately, not as adding to the total environ-

ment.

Because of the needs of security and order, inmates may

be strip searched. Bell v. Wolfish, supra. Inmates are

sometimes subject to being housed in different areas when

an investigation is necessary. Four Certain Unnamed In-

mates v. Hall, 550 F.2d 129 (1st Cir. 1977), citing Mon-

tanye v. Haymes, 427 U.S. 236 (1976). Likewise, move-

ments within the institution are necessarily and legiti-

mately restricted when one is placed in segregation; thus,

the ability to attend religious services is lost during that

time. Visits and facilities for visiting, telephone access,

access to the law library on weekends, light bulbs,

matches, mirrors, linen on holidays, coffee at night, specif-

ic items on the menu, the type of medication received, and

the placement of prisoners are all conditions of confine-

ment best left to the discretion of the trained authorities

on the scene. Otherwise, courts would be forced to assert

themselves into the most minute, insignificant details of

daily prison life, whenever an inmate disagrees with an

administrative decision.

The due process claims are likewise merely minor

grievances. There is no absolute right to call witnesses,

Baxter v. Palmigiano, 425 U.S. 308, 321 (1976), and defer-

ence is proper. The Board is to report its findings, not

everything that it hears. In their findings of fact, courts

state what they find, not what everybody testifies. That

disciplinary appeals may not be decided until the sentence

is served is no more a violation than that overburdened

appellate courts might not decide a criminal appeal until

the defendant has completed his sentence.

The conditions of I.D.U. alleged to be unconstitutional

were considered previously by the same district court in a

10

class action suit, although with a different judge then

presiding. Aikens v. Lash, 371 F.Supp. 482 (N.D. Ind.

1974). The district court held against the plaintiff inmates

on their claims. /d., at 495. The district court disapproved

of certain of the conditions that it found, but appropriately

determined not to interfere in areas reserved to state

prison officials. Aikens was a class action that included

future inmates such as Respondent, and the issues should

be laid to rest.

CONCLUSION

For these reasons, a writ of certiorari should be issued to

review the judgment and order of the Seventh Circuit.

Respectfully submitted,

THEODORE L. SENDAK

Attorney General of Indiana

DAVID A. ARTHUR

Deputy Attorney General

Office of Attorney

General

219 State House

Indianapolis, Indiana 46204

Telephone: (317) 232-6332

APPENDIX

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

(ARGUED NOVEMBER 27, 1978)

JULY 3, 1979

Before

Hon. Lutuer M. Swycert, Circuit Judge

Hon. Rosert A. Sprecuer, Circuit Judge

Hon. Wi.uiam J. Bauer, Circuit Judge

Bitue R. Apams,

Plaintiff-Appellant,

No. 78-1109 vs.

Jack R. Duckwortu, Jor F.

Koz.owsk1, Pete G. YouNGBLOOD,

Bos Guiancy, R. Suriner, RopNey

Keitu, Ronatp Batcue vor, G.

Witkins, Brayon GLICK,

Defendants-Appeilees.

Appeal from the

United States District

Court for the Northern

District of Indiana,

South Bend Division.

No. 8-77-35 (Civil)

ALLEN Suarp, Judge.

ORDER

Plaintiff-appellant Billie R. Adams appeals from the

order of the district court granting defendants-appellees’

motion to dismiss his pro se amended complaint for failure

to state a claim upon which relief could be granted, pursu-

A-1

A-2

ant to Rule 12(b)(6) of the Federal Rules of Civil Proce-

dure. Appellant contends the failure of the district court to

construe liberally his pro se amended complaint, as well as

the substantial nature of the allegations raised therein

and the incorrect rulings on these allegations, require that

the decision of the district court be reversed and re-

manded. In consideration of the arguments advanced in

support of these contentions, we regard the district court’s

order of dismissal to be improvidently rendered. Accord-

ingly, for the reasons set forth below, we vacate the order

of the district court, and remand the cause with instruc-

tions to permit the appellant the opportunity to prove the

allegations presented by his complaint.

I. a“

The appellant is and, at all times relevant to this action,

has been a prisoner at the Indiana State Prison in Michi-

gan City, Indiana. On March 7, 1977, he filed a pro se civil

rights action under 42 U.S.C. § 1983 against the warden

and six other named employees of the Indiana State Pris-

on. On April 7, 1977, and again on July 28, 1977, the

appellant filed supplemental complaints naming two addi-

tional prison employees as defendants. These supplemen-

tal complaints were treated by the district court as

amendments to the original complaint for purposes of the

motion to dismiss.

Appellant’s complaint challenged the procedure by

which he was placed in disciplinary segregation at the

prison, and also the conditions of his confinement in the

disciplinary segregation unit. Appellant challenged the

procedures which accompanied the decision to place him in

disciplinary segregation on due process grounds, alleging,

inter alia, that he did not receive an impartial hearing,

that his ability to call witnesses was restricted, that he did

not have an opportunity to testify, that the decision was

not based upon substantial evidence, and that the evi-

dence relied upon and the reasons for the decision were

not stated by the Conduct Adjustment Board in its deci-

sion.

A-3

With respect to the constitutionality of the conditions of

his confinement, the appellant asserted the conditions in

the maximum security unit at the prison constituted cruel

and unusual punishment under the Eighth Amendment,

alleging, inter alia, that the detention unit was unsani-

tary, that the plumbing was inadequately maintained, and

that his cell lacked heat and proper ventilation. He also

complained. of the presence of insects and rodents in his

unit, the excessive use of mace, inadequate clothing, the

lack of medical and psychiatric care, and of being required

to live in close proximity with mentally disturbed prison-

ers, whom he had seen stab other inmates. Appellant also

alleged certain violations of his First Amendment rights,

including the denial of his access to religious services and

materials.

Appellant sought injunctive and declaratory relief, as

well as monetary damages in the amount of $90,000. The

district court, in its memorandum opinion and order, dis-

missed certain of the named defendants on the ground

that the appellant’s complaint failed to allege sufficient

personal involvement under 42 U.S.C. § 1983 with respect

to these defendants. The district court then granted the

appellees’ motion to dismiss for failure to state a claim as

to the other defendants, and the appellant subsequently

appealed to this Court.

Il.

As a threshold matter, we hold that the dismissal of

defendants Duckworth, Kozlowski, Youngblood, Glancy,

Glick and Wilkins constituted reversible error. Where

equitable relief, as distinguished from the monetary dam-

ages, is sought under the provisions of the Civil Rights

Act, the personal involvement of the defendant is not

required. See Adams v. Pate, 445 F.2d 105, 107, n.2 (7th

Cir. 1971). Thus, assuming arguendo that the appellant

did not allege sufficient personal involvement on behalf of

these six defendants to state a claim for relief as to

monetary damages, the appellant’s claim for equitable

relief against these defendants is cognizable under 42

A-4

U.S.C. § 1983. In reversing the order of the district court

on this ground, however, we express no view concerning

the sufficiency of the plaintiff's allegations of personal

involvement as to these six defendants. On remand, there-

fore, the court is directed to reinstate the appellant’s

complaint against these six defendants for purposes of

re-evaluating appellant’s claims for monetary and equit-

able relief.

Il.

Addressing the appellant’s contention that his pro se

amended complaint alleged sufficient facts to state a claim

for relief, we conclude the district court erred in dismiss-

ing his complaint under Fed. R. Civ. P. 12 (b)(6). |

It is well-settled that a complaint should not be dismis-

sed for failure to state a claim unless it appears “beyond

doubt that the plaintiff can prove no set of facts which

would entitle him to relief.” Conley v. Gibson, 355 U.S. 41,

45-46 (1957). Moreover, motions to dismiss are subject to

even greater scrutiny in cases of pro se complaints. Haines

vu. Kerner, 404 U.S. 519 (1972). Due to the lack of legal

expertise that accompanies their preparation, pro se com-

plaints are generally entitled to a liberal construction.

French v. Heyne, 547 F.2d 994 (7th Cir. 1976). Additional

reasons exist for requiring that pro se complaints drafted

by prisoners be accorded special liberality, which reasons

are present in the case at bar. Appellant was confined in

an isolation unit at the prison at the time he filed his

original complaint and two supplemental complaints, and

the fact of his confinement was made known to the district

court. The original complaint alleged: “Plaintiff being con-

fined in disciplinary segregation is unable to gather any

further information or to have access to proper forms,

typewriter, and experience needed to abide by every rule

of the court.” The predicament confronting the appellant

in this case is similar to that encountered by the

prisoners-plaintiffs in LaBatt v. Twomey, 513 F.2d 641

(7th Cir. 1975), in which we held that the district courts

should be especially cautious in granting summary dispos-

A-5

ition under such circumstances. LaBatt v. Twomey, supra,

at 650.

In this case, the record demonstrates that the district

court failed to construe liberally the appellant’s pro se

complaint. No recognition is made in the court’s opinion

that the appellant was proceeding pro se, but rather, the

court stated “while plaintiff’s complaint is vague, desul-

tory, inconcise and difficult to follow as a result of not —

being constructed in numbered paragraphs as con-

templated by Federal Rules of Civil Procedure, it is clear

that nowhere does it state a claim upon which relief can be

granted.”

IV.

Construing the appellant’s pro se amended complaint

liberally, it cannot be said that he is entitled to no relief

under any set of facts which could be proved in support of

his claims. A fair reading of the allegations contained in

the complaint indicates appellant was confined to disci-

plinary segregation prior to being afforded a hearing, that

the subsequent hearing was not impartial, that the Con-

duct Adjustment Board recorded only certain facts, that

appropriate procedures were not followed, that all wit-

nesses appellant wanted were not called, and that the

decision was not based upon substantial evidence. These

allegations (when taken as true as they must be on a

motion to dismiss) indicate that appellant was confined to

disciplinary segregation without being accorded due pro-

cess of law in violation of the rights secured to him by the

Fourteenth Amendment.

In the context of this case, the reliance of the district

court on Adams uv. Pate, 445 F.2d 105 (7th Cir. 1971) to

dismiss the appellant’s procedural due process claims is

inapposite. In United States ex rel. Miller v. Twomey, 479

F.2d 701 (7th Cir. 1973), cert. denied, 414 U.S. 1146

(1974), and its progeny, this Court further delineated the

procedural due process standards governing the placement

of prisoners in disciplinary segregation.

A-6

Thus, absent emergency circumstances, a prisoner is

entitled to notice and a hearing before he is confined to

segregation. LaBatt v. Twomey, 513 F.2d 641 (7th Cir.

1975); Hayes v. Walker, 555 F.2d 625 (7th Cir. 1977). Since

no emergency is claimed to have existed in this case, the

decision to place the appellant in segregation without a

hearing is judicially reviewable, and the allegations con-

cerning his pre-hearing segregation should not have been

dismissed.

Furthermore, a prisoner subject to disciplinary confine-

ment is entitled to an impartial hearing, an opportunity to

call witnesses unless to do so would jeopardize institu-

tional security, and a decision based upon substantial

evidence which sets forth the reason for the decision and

the evidence relied upon. Aikens v. Lash, 547 ¥.2d 372

(7th Cir. 1976); Hayes v. Walker, supra. In this case,

appellant alleged that the fact finders who imposed disci-

plinary segregation upon him were not impartial. It is

fundamental to do process that fact finders be impartial.

United States ex rel. Miller v. Twomey, supra.

Appellant also alleged he was not permitted to call all of

his witnesses to the disciplinary hearing. Although the

right to call witnesses at such hearings is limited, Baxter

v. Palmigiano, 425 U.S. 308, 321 (1976), and prison offi-

cials retain broad discretion in determining whether to

permit witnesses to be called, such discretion is not unfet-

tered. Wolff v. McDonnell, 418 U.S. 539, 566 (1974). In this

case, the record is silent as to the reasons why appellant

was not permitted to call his witnesses. This Court has

previously held that support for the denial of a request to

call witnesses must appear on the record. Hayes v. Walker,

555 F.2d at 630. Appellant further alleged that the disci-

plinary hearing decision was not based upon substantial

evidence and that the records of the hearing reflected only

certain of the facts adduced. These allegations, when

taken as true, indicate procedural due process violations.

Discipline decisions must be based upon substantial evi-

dence, Aikens v. Lash, supra, and must be supported by a

written statement of the fact finders as to the evidence

A-7

relied upon and the reasons for the disciplinary action.

Hayes v. Walker, supra; Wolff v. McDonnell, supra.

Accordingly, in view of the appellant’s pro se status and

the substantial nature of his procedural due process alle-

gations, we conclude his complaint stated valid claims

upon which relief could be granted.

¥.

Similarly, we conclude the district court erred in dismis-

sing the appellant’s complaint challenging the conditions

of his confinement for failure to state a claim under the

Eighth Amendment. In its opinion, the district court relied

extensively upon Aikens v. Lash, 371 F. Supp. 482 (N.D.

Ind. 1974), to hold that the appellant failed to state a

claim on issues pertaining to the living conditions in the

“T” Cellhouse Detention Unit (IDU) at the Indiana State

Prison. However, Aikens did not sanction the conditions in

the IDU as constitutionally adequate, but rather deferred

consideration of the claims challenging these conditions

until the legislature and the prison staff had an opportuni-

ty to act in correcting the many deficiencies existing on

the IDU. Aikens, supra at 495. Nor did this Court place an

imprimatur of constitutionality upon the conditions in the

IDU on the appeal in that case. Aikens v. Lash, 514 F.2d

55, 58, n.8 (7th Cir. 1975). Accordingly, we do not regard

these decisions as res judicata of the appellant’s challenge

to the conditions of his confinement.

Moreover, we regard the substantial nature of the appel-

lant’s allegations concerning these conditions as sufficient

to state a claim for relief. These conditions, which have

been summarized previously, are typical of the conditions

which have been condemned by other courts as violative of

the Eighth Amendment. Thus, in measuring these condi-

tions under the strictures of the Eighth Amendment, the

court must judge whether the conditions complained of

would be shocking to the collective national conscience.

See, e.g., LaBatt v. Twomey,.513 F.2d 641 (7th Cir. 1975).

In evaluating conditions of confinement against this stan-

A-8

dard, the court may consider the cumulative impact of all

the challenged conditions, Kirby v. Blackledge, 530 F.2d

583, 587 (4th Cir. 1976), the duration of the punishment,

LaBatt v. Twomey, supra at 648, and the appropriateness

of the punishment vis-a-vis the severity of thc offense.

LaReau v. MacDougall, 473 F.2d 974 (2d Cir. 1972).

Application of these principles to the instant case com-

pels the conclusion that the appellant’s pro se complaint

alleged sufficient facts to state a claim for relief under the

Eighth Amendment. The appellant was confined to the

maximum security unit for a period of six iuonths as a

result of the possession of marijuana and money. Consider-

ing the duration and proportionality of his punishment in

light of the offenses, together with the cumulative impact

upon the appellant of the debilitating conditions alleged in

his complaint, we find the appellant is entitled to an

opportunity to prove the allegations challenging the condi-

tions of his confinement.

Vi.

Finally, we conclude the appellant has stated a constitu-

tional claim based upon a denial of his First Amendment

religious rights. In view of the appellant’s pro se status, we

regard his factual allegations as sufficient to raise an

issue whether his confinement unconstitutionally denied

him access to religious materials and individual religious

services. On remand, therefore, the appellant will be per-

mitted to prove a constitutional violation of his rights

secured by the First Amendment.

As a final note, we observe that, in ruling on the

sufficiency of the appellant’s claims, the district court was

confronted with the difficult and laborious task of analyz-

ing some fifty handwritten pages representing the appel-

lant’s pro se original and two supplemental complaints. In

remanding this case to the district court, we are sym-

pathetic to the burden imposed upon the court by the

nature of the appellant’s complaint. However, we take

solace that ‘is burden will be alleviated in the assurance

A-9

at oral argument by appellant’s counsel on appeal, Legal

Services Organization of Indiana, Inc., that it will repre-

sent the appellant in the event the case is remanded.

For the foregoing reasons, the order of the district court

dismissing the appellant’s complaint is vacated, and the

cause is remanded with directions to permit the appellant

an opportunity to prove the allegations raised in his com-

plaint.

VACATED and REMANDED

A-10

IN THE |

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

Biture R. Apams

Plaintiff

Vv.

Jack DuckworTH

J. F. Koziowsk1

P. G. Youncsioop ;

Bos GLANEY

R. SHRINER

Ropney KeltH

Rona_p BatcHELOR

Defendants

No. S 77-35

MEMORANDUM OPINION

Defendants Duckworth, Kozlowski, Youngblood, Glancy,

Glick and Wilkins are dismissed from this cause since in

his supplemental complaint plaintiff requests monetary

damages from all defendants. The Seventh Circuit has

ruled that where monetary damages rather than equitable

relief is sought under the provisions of the Civil Rights

Act the doctrine of respondent superior does not apply, and

personal involvement of a defendant is required. Adams v.

Pate, 445 F.2d 105 (7th Cir. 1971). These individuals are

named as defendants but their names do not appear in the

body of the complaint and apparently plaintiff’s complaint

does not allege any overt acts on their part which denied

plaintiff his rights under 42 U.S.C.A. § 1983.

Plaintiff’s first allegation is that he was subjected to an

A-11

unreasonable search. It has long been established that a

convict loses a great measure of his protection against

unreasonable searches and seizures. Martin v. United

States, 183 F.2d 436 (4th Cir. 1950), and that a prisoners’

right to be free from unreasonable searches is subject to

curtailment made necessary by the purposes of confine-

ment and the requirements of security. Palmigiano uv.

Travisono (D.C. R.1.) 317 F. Supp. 776.

Circumstances very similar to this case were faced by

the U.S. District Court of the Western District of Missouri

in Burns v. Wilkinson (W.D. Mo.) 333 F. Supp. 94 (1971).

There, the inmate alleged that he had been “compelled by

guards at the prison to strip naked in an aggressive and

belligerent manner, that he was taken from the im-

mediate vicinity of his cell and was peremptorily con-

strained to remain undressed in the cold night air while

said cell was ransacked and searched.” Burns v. Wilkin-

son, supra, at 95. The Court concluded that:

... The facts alleged by petitioner, of a single

search “at some time before midnight” carried out

in an “aggressive and belligerent” manner, but

during which no actual assault or other abuse is

stated to have taken place, do not demonstrate that

the search was unnecessary and unrelated to prison

security. No violation of any federal right is

thereby made out to warrant interference by a

federal court in the control, discipline, treatment

and security of state prisoners by the state of Mis-

souri. In United States v. Follette (S.D.N.Y.) 282 F.

Supp. 10, 13, it was held that, with respect to

convicted probationers, a search could be deemed

unreasonable “only if made too often or if made at

an unreasonable hour or if unreasonably prolonged

or for other reasons establishing arbitrary or op-

pressive conduct by the parole officer.” None of

these conditions are alleged by petitioner, nor are

they inferable from the complaint or petition filed

in this case. A ruling in favor of petitioner on the

facts which he has alleged would set a precedent

A-12

which would endanger the security of the prisons

and the personal safety of the persons who main-

tain and guard the prisons. Petitioner therefore

does not state any claim of denial of a federal right

with respect to the search of his person. Nor does he

allege any facts which, if true, would constitute

irreparable injury. Burns v. Wilkinson, supra, at p.

96-97.

Hence plaintiff’s allegation of unreasonable search and

seizure do not raise questions of Constitutional dimension

and does not state a claim upon which relief may be

granted.

Plaintiff’s second allegation is that he has been subject

to cruel and unusual punishment because of harassment,

being in disciplinary segregation and being denied visita-

tion by a friend. None of these allegations have presented

the Court with any question of constitutional dimension.

As a general rule, the Eighth Amendment only gives

constitutional dimension to punishment that is barbarous

or shocking to the conscience of society. LaReau v. Mac-

Dougall, 473 F.2d 974 (2nd Cir. 1972), cert. denied 414

U.S. 878 (1973); Watkins v. Johnson, 375 F. Supp. 1005

(E.D. Pa. 1974), aff'd. 511 F.2d 1397.

The Seventh Circuit has held that to establish a viola-

tion of the Eighth Amendment, prisoners must show

either that the actions of the prison intentionally inflicted

excessive or grossly severe punishment on them or that

conditions were so harsh as to shock the general con-

science and were knowingly maintained by defendants.

LaBatte v. Twomey 513 F.2d 641 (7th Cir. 1975).

Segregation by itself is not cruel and unusual punish-

ment. Miller v. Twomey 479 F.2d 701 (7th Cir. 1973); Krist

v. Smith, (D.C. Ga. 1970), 309 F. Supp. 497, 439 F.2d 146;

Newsome v. Sielaff (D.C. Pa. 1974), 375 F. Supp. 1189.

Plaintiff’s general allegation of harassment lacks support-

ing evidence and is too broad to support a claim. The

decision of whether or not to permit an inmate to receive

visits from particular individuals has been held to be

A-13

within the discretion of prison officials. Walker v. Pate 356

F.2d 502 (7th Cir. 1966), cert. denied 86 S.Ct. 1598, 384

U.S. 966, 16 L.Ed.2d 678. Even if plaintiff's allegations

were true they fail to state a violation of plaintiff’s Eighth

Amendment rights under 42 U.S.C. § 1983.

Plaintiff’s third allegation is that he has been denied

due process and equal protection. “Prison disciplinary pro-

ceedings are not part of a criminal prosecution and the full

panoply of rights due a defendant is such proceedings does

not apply...In sum, there must be mutual accommoda-

tion between institutional needs and objectives and the

provisions of the Constitution that are of general applica-

tion.” Wolff v. McDonnell 418 U.S. 539, 94 S.Ct. 2963, 41

L.Ed. 935 (1974). Due process requirements are met if

there is some assurance of elemental fairness. Nolan v.

Scofati 430 F.2d 548 (1st Cir. 1970). The Seventh Circuit

has held that the requirements of due process in disciplin-

ary hearings are met if the prisoner is confronted with the

accusation and given a reasonable opportunity to present

his side of the dispute:

It thus appears that the prisoner is confronted with

the accusation against him and afforded a reason-

able opportunity to deny the accusation or explain

his actions. In the context of the nature of the

administrative action here involved, this would ap-

pear to fairly and rationally satisfy the concept of

procedural due process. Adams v. Pate, 445 F.2d

105 (7th Cir. 1971).

Here plaintiff did not allege that he was not notified of

the charges against him, nor does he allege that he was

not allowed to deny the charge or explain his actions.

Plaintiff does not even allege denial of access to the legal

department, merely that it was not available on weekends;

he does not allege that he was not allowed to call any

witnesses on his own behalf or cross-examine the accusing

officer; nor does he complain of a lack of appeal process,

merely the time that might be involved. Plaintiff's chal-

lenges to the hearing are really questioning interpretation

A-14

of evidence and facts and the sentence imposed, not the

procedure and his allegation about lack of impartial fact

finders is unsupported. Failure to follow procedure at a

disciplinary hearing is not a violation of constitutional

rights. Wolff v. McDonnell, supra.

Also since the portion of plaintiff's complaint dealing

with the disciplinary hearing is, in fact, challenging the

fact of his confinement in seclusion, not the conditions of

his confinement there, his claim is not cognizable under §

1983. The Supreme Court has ruled that 42 U.S.C. § 1983

is not the proper vehicle for relief for attempts to effect

discharge from unlawful confinement. Preiser v. Rod-

riguez, 411 U.S. 488, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).

Thus even if plaintiff’s allegations were true, they fail to

state a violation of constitutional rights cognizaBle under

42 U.S.C. § 1983.

Plaintiff apparently also feels that defendants are deny-

ing access to the courts by restricting access to notaries.

However, plaintiff does not allege that he has been denied

access to a notary or the courts and, from the fact that he

filed two pleadings in one month, it appears that he was

able to procure the services of a notary. Even if these

allegations were true, and defendants do not concede that

they are, they fail to state a claim upon which relief can be

granted.

In the interest of fairness and justice the court chooses

to accept the second pleading as a supplemental complaint

and to treat it as an amendment to the original complaint.

Plaintiff’s first request for relief asks that he be allowed

the right to attend religious services on Sundays. It is well

established that “Denial of permission to prisoners in

administrative segregation to attend religious services (is)

reasonable in the light of the need for security so long as

inmates are allowed to receive religious materials and

visits by the chaplain or other ministers of their choosing.”

Diamond v. Thompson, (D.C. Ala. 1973) 364 F. Supp. 659;

Sharp v. Sigler (D.C. Neb. 1967) 277 F. Supp. 963. Plain-

tiff does not allege that he was denied access to the

A-15

chaplain or to religious material in segregation, and the

claim he does advance is not of constitutional proportions.

All or parts of plaintiff's second, third, fourth, sixth,

ninth, eleventh and twelfth requests for relief deal with

the physical condition of the cells in the I.D.U. (“I” Cell-

house Detention Unit). The living conditions in the I.D.U.

were also litigated in Aikens v. Lash (N.D. Ind. 1974), 371

F. Supp. 482,

Plaintiffs contend that long-term confinement

therein, under the living conditions and manner of

operation, constitutes a deprivation of rights under

the Fourteenth, Eighth, Fourth, and First Amend-

ment to the United States Constitution. Aikens v.

Lash, supra, at 492.

Since that trial was held at the prison, Judge Grant, the

presiding judge, was able to inspect the I.D.U. personally:

Mention should also be made of the fact that our

presence there made possible an unannounced in-

spection trip through the two segregation units

involved in this controversy. With the prior knowl-

edge and approval of all counsel and flanked only

by a law clerk and one prison guide, it was possible

for the Judge to walk the “range” on both floors of

both units, located in separate buildings a short

walk from the courtroom. Aikens v. Lash, supra,

485.

As a result of his inspection and the other evidence

presented in Aikens, Judge Grant ruled that one of the

seclusion units, the Deputies Office Unit (D.O.) was un-

constitutional and violated the Eighth Amendment. How-

ever, the Court held “against the plaintiffs on their con-

stitutional challenges against the I.D.U. Seclusion Unit.”

Aikens v. Lash, supra, at p. 495. Conditions there were

held not to constitute a deprivation of the constitutional

rights of inmates.

Other courts, including the Seventh Circuit have dealt

with similar circumstances involving ventilation, com-

A-16

modes, cleanliness, showers, lack of radios and other cell

conditions. In those cases, allegations of disorder, discom-

fort, inconvenience, and maintenance problems were held

not sufficient to suggest deprivation of any right secured

by the constitution or laws or show conditions so foul,

inhumane and violative of the basic concepts of decency as

to fall within the proscription of the Eighth Amendment.

Adams v. Pate, supra, at 109; Bussue v. Lankler (D.C. N.Y.

1972), 337 F. Supp. 146; Lovern v. Cox (D.C. Va. 1974), 374

F. Supp. 32. Thus, even if plaintiff’s allegations were true,

they fail to state a claim of action upon which relief can be

granted.

All or parts of plaintiff’s fourth and fifth requests for

relief deal with the food and food service at the I.D.U.

Plaintiff alleges that the food is not hot enough, the meals

do not vary enough from week to week and that the eating

utensils are inadequate.

The court also reviewed the dietary and utensil policies

of the I.D.U. in Aikens and found that the dietary and

service policies of the I.D.U. were adequate and did not

raise any questions of constitutional magnitude.

The segregation units are provided the same food

as the rest of the general prison population. The

menu for each week is based upon a recommenda-

tion of the Director of Food Service for the State,

who is a licensed dietitian. Food to these units is

delivered by an electronically-controlled hot food

cart. Tests have shown that there is a loss of but 4°

or 5° in transporting these carts from the kitchens

to the seclusion units. Aikens v. Lash, supra, at

493.

The Court also held that denial of items that could be

turned into weapons was reasonable in the I.D.U. for

security purposes.

While use of plastic rather than metal utensils was not

decided by Aikens, it is clear that these items are more

easily converted into weapons than stainless steel trays

and therefore, under Aikens, it should be within the dis-

A-17

cretion of prison officials to deny the use of metal utensils

for security reasons.

Plaintiff’s seventh request for relief deals with medical

treatment. Plaintiff does not allege that he is currently in

need of medical care, nor does he allege that he has been

deprived of medical care, though he does contend that the

cold pack provided for him was inadequate. Therefore, this

complaint does not allege a violation of constitutional

rights since the Seventh Circuit has consistently held that

improper, insufficient or inadequate medical treatment of

prisoners does not state a constitutional claim. U.S. ex rel.

Lawrence v. Ragen, 323 F.2d 410 (7th Cir. 1963); Hender-

son v. Pate, 409 F.2d 507 (7th Cir. 1969). The prisoner

must actually be deprived of essential medical care before

a cause of action is alleged. U.S. ex rel. Knight v. Ragen,

337 F.2d 425 (7th Cir. 1964), cert. denied, 380 U.S. 985

(1964). Plaintiff alleges only inadequate medical care, not

deprivation of medical care, therefore, he has not stated a

valid claim for which relief can be granted.

The issue of medical care in the I.D.U. was also litigated

in Aikens. The Court ruled that the medical services were

not inadequate and did not constitute deprivation of con-

stitutional rights.

True, these services are not as adequate nor

nearly as speedy as the plaintiffs demand but

countless citizens outside the Prison walls will tes-

tify that doctors are busy people and are not always

ready to break and run the moment we demand

them, day or night. Aikens vu. Lash, supra, at p. 493.

Plaintiff’s eighth request for relief asks that “plaintiff be

given daily outdoor fresh air exercise time with recreation

facilities, materials and with access to library for reading

materials.” In Aikens Judge Grant specifically noted that:

Prisoners are confined in I.D.U. twenty-four

hours a day and are not allowed outside their cells

for exercise and are only temporarily released for

visits or hospitalization, but for few other reasons.

Aikens v. Lash, supra, at 493.

A-18

The Court in Aikens did not rule these restrictions

unconstitutional and noted that a shortage of manpower

precluded the prison from providing some of the services

sought by plaintiffs. Plaintiff does not allege denial of

reading material in seclusion. Plaintiff’s allegations do

not raise any question of constitutional proportions.

Plaintiff’s tenth request for velief seeks that he be free

from “restraint(s) on visits” and “from all Chemical

Agents as corporal punishments.”

It is well established that visitation privileges are

within the discretion of prison officials and absent ex-

traordinary circumstances federal courts should not inter-

fere with their discretion. Walker v. Pate, (7th Cir. 1966)

356 F.2d 502, cert. denied 86 S.Ct. 1598, 384 U.S. 966, 16

L.Ed.2d 678; McCray v. Sullivan, (5th Cir. 1975), 509 F.2d

1332, 339 F. Supp. 271. Plaintiff’s allegations dealing with

restrictions on visitation do not present such extraordi-

nary circumstances as to invoke intervention by the

courts.

As to plaintiff’s allegations regarding corporal punish-

ment, the criteria used in determining if an assault

against a prisoner reaches the magnitude of a constitu-

tional deprivation is “whether the complaint indicates

that the prisoner has received physical and mental abuse

or corporal punishment of such base, inhumane and bar-

baric proportions that it shocks and offends the Court’s

sensibilities and offends the Eighth Amendment as well.”

Butler v. Bensinger (D.C. Ill. 1974), 377 F. Supp. 870. In

this case it does not appear that plaintiff has been the

subject of any corporal punishment, either physical or

chemical, let alone that he was subject to base or in-

humane treatment.

Courts have upheld the use of mace in proper circum-

stances as being within the discretion of prison officials.

Crafton v. Rose, (D.C. Tenn. 1972), 369 F. Supp. 131;

Washington v. Anderson (E.D. Okla.), 387 F. Supp. 412

(1974). Plaintiff does not allege that mace was used in

improper circumstances.

A-19

Plaintiff also alleges on pages 7 and 8 of his complaint

that the personal property he was prohibited from taking

into seclusion has been lost through the negligence of

defendants. Even if this were true, it is not conduct which

states a claim under the civil rights statutes since it does

not deprive him of rights, privileges or immunities secured

him by the Constitution or laws of the United States.

Howell v. Cataldi, 464 F.2d 272 (3rd Cir. 1972).

Plaintiff's final claim is for restitution for per-

sonal belongings which were missing after his

property was sent to him in the maximum security

cell block.... Even assuming that plaintiff could

establish that defendants are liable for the loss of

his personal articles, it would seem that such liabil-

ity would be founded on either a theory of common

law negligence or breach of a state statutory

duty—neither of which are cognizable actions

under the Civil Rights Act. Id. Plaintiff’s claim for

restitution should, therefore, be dismissed. Collins

v. Haga, 373 F. Supp. 923 (1974).

While plaintiff's complaint is vague, desultory, incon-

cise and difficult to follow as a result of not being con-

structed in numbered paragraphs as contemplated by the

Federal Rules of Civil Procedure, it is clear that nowhere

does it state a claim upon which relief can be granted.

Even if plaintiff’s allegations were true they fail to state a

violation of constitutional rights cognizable under 42

U.S.C. § 1983.

Plaintiff's Second Supplemental Complaint to this cause

of action alleges violations of his First, Eighth and Four-

teenth Amendment rights. The facts of his Complaint fail

to state a claim upon which relief can be granted.

Allegation 1(A) deals with the conditions and operations

of the visiting room. All that is required of a visitation

area is tolerable comfort or minimally tolerable physical

conditions. Giampetruzzi v. Malcolm, 406 F. Supp. 836

(D.C. N.Y., 1975). Restricting to three the number of

prisoners using the facilities at one time is within the

NNER

A-20

discretion of officials. In Giampetruzzi it was found that

allowing only two prisoners at a time in receiving units

was reasonable to thwart escape attempts. Plaintiff’s alle-

gations of retaliation are conclusory and do not state a

cause of action.

Allegation 1(B) deals with alleged denial of access to a

telephone. Plaintiff does not allege personal involvement

of any of the named defendants. To be actionable there

must be personal involvement in such acts. Adams v. Pate,

445 F.2d 105 (7th Cir. 1971); Boyd v. Adams, 364 F. Supp.

1180 (N.D. Ill. 1973).

Allegation 1(C) deals with delay in mail delivery. Pris-

oners cannot permissibly be denied mail. Collins v.

Schoonfield, 344 F. Supp. 257 (D.C. Md., 1972). However,

plaintiff does not allege that he has been denied the right

to receive mail, he merely claims that its delivery has

been delayed. So long as a delay is not unreasonable, it

does not reach constitutional dimensions. Fore v. Godwin,

407 F. Supp. 1145 (D.C. Va., 1976). Plaintiff’s complaint of

missing magazines appears from the complaint to be as a

result of negligence by guards which does not state a claim

of action under § 1983. Kent v. Prosse, 265 F. Supp. 673

(D.C. Pa., 1967), affirmed 385 F.2d 406 (3d Cir., 1967). In’

any event there is no allegation that any of the named

defendants were in any way personally involved in de-

layed mail delivery. Thus, this allegation does not state a

claim.

Plaintiff’s second allegation deals with physical condi-

tions of the cells, cleaning procedures and maintenance.

In allegation 2(A) he argues that it is cruel and unusual

punishment to have to clean the floor while standing on it

and to have to carry a change of clothing, towels, toilet

articles and a trash bag out of his cell at the same time.

The Seventh Circuit has held that to establish a violation

of the Eighth Amendment, a prisoner must show either

that the actions of the prison intentionally inflicted exces-

sive or grossly severe punishment on him or that condi-

tions were so harsh as to shock the general conscience of

A-21

society. LaBatt v. Twomey, 513 F.2d 641 (7th Cir.“1975).

Plaintiff’s allegations in item 1(A), even if true, fail to

meet this standard. Trivial or frivilous invasions of per-

sonal rights are not cognizable. Wells v. Ward, 470 F.2d

1185 (10th Cir. 1972).

Allegation 2(B) alleges that one night plaintiff was

denied a change in light bulbs until morning, was unable

to get mirrors on hair cut days or hatches on demand and

was denied a change of linen when holidays fall on Mon-

day. These allegations do not state a claim upon which

relief can be granted. He does not allege that he was not

allowed to clean his cell or person or that he was denied

the material to do it with. His allegation merely is that

there were some difficulties involved. Likewise he does not

allege that he has been denied haircuts or change of linen,

merely that they were sometimes delayed. Trivial or

frivilous invasions of personal rights are not cognizable

under § 1983. Wells v. Ward, supra.

The allegations of unsanitary conditions deal with mat-

ters of prison administration, and absent exceptional cir-

cumstances, federal courts will not inquire into such mat-

ters. U.S. ex rel. Knight v. Ragen, 337 F.2d 425, cert.

denied, 14 L.Ed.2d 277 (7th Cir., 1964); Bowman v. Hale,

302 F. Supp. 1306 (D.C. Ala., 1969). These allegations do

not reach constitutional proportions. Similar problems

have been held insufficient to suggest deprivation of any

right secured by the Constitution or show conditions so

foul, inhumane or violative of the basic concepts as to fall

within the proscription of the Eighth Amendment. Adams

v. Pate, 445 F.2d 105 (7th Cir., 1971); Bussie v. Lankler,

(D.C. N.Y., 1972), 337 F. Supp. 146; Lovern v. Cox, (D.C.

Va., 1974), 374 Supp. 32. Thus, even if plaintiff’s allega-

tions were true, they fail to state a claim of action upon

which relief can be granted.

Allegation 2(C) charges that plaintiff has been denied

certain food items on three Sundays and has not been able

to obtain coffee for evening meals. Prisoners in seclusion

are entitled to a diet that provides them appropriate

A-22

nutrition but not necessarily entitled to any particular

food. Collins v. Schoonfield, 344 F. Supp. 257 (D.C. Md.,

1972):

... As to inmates convicted and serving sen-

tences, the provision or denial of certain foods,

provided there is in any event no denial of that

quantity and quality of food required for appropri-

ate nutrition, may not be unconstitutional regard-

less of whether it is advisable....Collins v.

Schoonfield, supra at p. 278.

Plaintiff does not allege denial of a nutritional diet merely

that some items weren’t available at some meals. This is

not cruel and unusual punishment.

Item 2(D) alleges that on one occasion in June*the heat

was left on. This appears to be an isolatec instance and

there is no allegation that it was intended by officials to

punish anyone. Such incidents often occur in institutions

of all types especially in seasons when outside tempera-

tures are fluctuating. One such isolated incident is not

sufficient to suggest deprivation of any right secured by

the Constitution and does not constitute cruel and unusual

punishment.

Plaintiff's allegation in item 2(E) is that he suffered ©

from the use of mace on prisoners in adjoining cells. This

does not state a claim upon which relief may be granted

under 42 U.S.C. § 1983.

... when the jail guards used tear gas to quell a

disturbance in the exercise area of the jail. The gas

penetrated into the appellant’s cell and affected his

eyes and nasal passages.... But the allegations of

the complaint fall short of stating a claim for relief

for deprivation of a protected constitutional right.

Stripped of all the non-essential verbage, the com-

plaint shows that appellant was caused to come

into contact with tear gas used by the jail officers in

quelling the disturbance in the prison. Even if this

constituted an assault, it was insufficient to sustain

an action for relief under the civil rights statute.

A-23

Davis v. United States, 439 F.2d 1118 (8th Cir.,

1971) at p. 1119.

As to the tear gas incident, the alleged facts fall

far short of demonstrating a violation of a constitu-

tional right. Nowhere is it alleged that the spray-

ing was intentionally or maliciously directed at

petitioner, and a single tear gas incident is not

likely to amount to the gross negligence that is

minimally required to state a good cause of action

for inflicting cruel and unusual conditions of con-

finement. Fitchette v. Collins, 402 F. Supp. 147

(D.C. Md., 1975) at p. 157.

As in Fitchette and Davis, plaintiff does not allege that

mace was intentionally or maliciously directed at him, and

in such circumstances even if he was affected by the mace,

it doesn’t amount to cruel and unusual punishment and is

not actionable under 42 U.S.C. § 1983. Also there is no

allegation of personal involvement of defendants. Adams

v. Pate, supra.

Allegation 2(F) deals with prisoners plaintiff contends

are mentally ill being kept in the same security unit as he

is, which he contends endangers him. These allegations do

not state a cause of action because he does not claim there

has been any actual injury to him, and even if there were

an assault by a fellow inmate, it would constitute a tort

not cognizable under 42 U.S.C. § 1983. Kent v. Prosse,

supra; Bowman v. Hale, supra; Fitchette v. Collins, supra.

In any event assuming plaintiff’s allegations of insanity of

other inmates are correct, then defendants are properly

discharging their duties to the prison population by keep-

ing these inmates in a security unit rather than in the

general population.

Allegation 3 deals with plaintiff’s objections to review

procedures for prisoners in seclusion. Due process requires

periodic review of the situation of persons in segregation.

Kelley v. Brewer, 525 F.2d 394 (8th Cir., 1975). However,

plaintiff does not contend that there was no review, his

only objections are that review occurred every thirty days

A-24

and was performed by the Conduct Adjustment Board.

These objections do not show any denial of equal protec-

tion and do not state a claim for which relief can be

granted.

Thus, even if plaintiff’s allegations were true, they fail

to state a violation of constitutional rights cognizable

under 42 U.S.C. § 1983.

This Court now DISMISSES this case for failure to

comply with Rule 12(b)(6) of the Federal Rules of Civil

Procedure and to state a claim upon which relief can be

granted.

Enter December 5, 1977.

/s/ Allen Sharp

Judge, United States District Court

A-25

JUDGMENT ON DECISION BY THE COURT

UNITED STATES DISTRICT COURT

; FOR THE

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

Civit Action Fite No. S 77 0035

Bitte R. Apams

US.

Jack Duckworth, J. F. Koz_owski,

P. G. Youncs.oop, Bos GLaney, R.

Suriner, Ropney Keitu, RoNALD

BatcHe.or, Byron Guick, G.

WILKINS

JUDGMENT

This action came on for (hearing) before the Court,

Honorable ALLEN Suarp, United States District Judge, pre-

siding, and the issues having been duly (heard) and a

decision having been duly rendered,

It is Ordered and Adjudged that the plaintiff take noth-

ing, that the action be dismissed on the merits.

Dated at South Bend, Indiana, this 5th day of December,

1977.

Francis T. GRANDYS

[a se ee ee ee ee ee eee 688 ee eB eee ewe en ee 6 6 8

Clerk of Court

/s/ Eugene J.Szynski

Deputy Clerk