Benson v. Cady

• Decision Date: 18 April 1985
• Docket Number: No. 83-2658,83-2658
• Parties: Alex BENSON, Plaintiff-Appellant, v. Elmer O. CADY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 335

761 F.2d 335

Alex BENSON, Plaintiff-Appellant, v. Elmer O. CADY, et al., Defendants-Appellees.

No. 83-2658.

United States Court of Appeals Seventh Circuit.

Argued Sept. 25, 1984.

Decided April 18, 1985.

Robert Miller (Law Student), Northwestern University Legal Clinic, Chicago, Ill., for plaintiff-appellant.

Richard J. Boyd, State of Wis., Dept. of Justice, Madison, Wis., for defendants-appellees.

Before WOOD and ESCHBACH, Circuit Judges, and SWYGERT, Senior Circuit Judge.

HARLINGTON WOOD, Jr., Circuit Judge.

Plaintiff-appellant Alex Benson, an inmate at Waupun Correctional Institution [WCI] in Waupun, Wisconsin, appeals from the district court's dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure of his eighth amendment claim that defendants were deliberately indifferent to his physical safety needs and serious medical needs and his pendent state claims arising out of the same facts. Named as defendants were Cady, then Administrator of the Division of Corrections for the State of Wisconsin; Israel, then Warden at WCI; Manthe, Director of Treatment at WCI; Whitmore, Director of the Bureau of Institutional Health Services for the State of Wisconsin; and Mokrohiski, MacLean, Kayute, Bergen, Blevins, and Kliese, physicians at WCI and Dodge Correctional Institution [DCI] at all times relevant to Benson's claim.

I.

The allegations of Benson's amended complaint in support of his eighth amendment claim of deliberate indifference to his safety and serious medical needs are as follows. Sometime between February 22 and February 25, 1981, one of the weights on the barbell exercise equipment that Benson was using at the institution slipped off and struck him in the neck, head, and shoulder area of his body. The lock and screw designed to hold the weight on the equipment were missing. Defendants Cady, Manthe, and Israel failed to have the equipment inspected and repaired. Although Benson filed a request for medical attention on the same day he sustained this injury to his neck, he did not see a physician until two days later.

Benson further alleged that he was assigned to a double cell pursuant to a policy promulgated by defendants Cady and Israel and implemented by defendant Manthe. The conditions in the cell were such that Benson's living space during the day consisted of the area normally occupied by his bed, which was held in its daytime vertical position by two large hooks. One of these hooks was missing. Sometime between March 14 and March 18, 1981, the remaining hook failed, and the bed fell from its vertical position and struck Benson in the neck. Defendants Cady, Israel, and Manthe failed to have the bed inspected and repaired. Again, Benson filed a request for medical attention on the day of the accident but did not receive that attention until two days later. Benson's neck was not X-rayed until one year after this accident. These delays in treatment were alleged to be attributable to the failure of defendants Israel, Cady, and Whitmore to implement an emergency health care system for the efficient and speedy diagnosis and treatment of injuries. Additionally, defendants Cady, Israel, and Manthe instituted a policy of handcuffing inmates during medical examinations. The implementation of this policy in Benson's case interfered with the evaluation and treatment of his injury.

Defendants Whitmore, Mokrohiski, and MacLean allegedly failed to ensure that Benson received all medication prescribed for him by physicians at the University of Wisconsin Hospital in February, 1981 and in May, 1981, and by physicians at the institution in March, 1981 and April, 1981. These defendants further failed to ensure that Benson received all traction prescribed for him in March, August, and November of 1981 and in February of 1982. Defendants Whitmore, Kayute, Bergen, and Blevins did not ensure that Benson received all medication prescribed for him by University of Wisconsin Hospital physicians in November, 1981, and did not ensure that he received the cervical collar prescribed in February, 1981. Defendant Kliese prescribed a psychiatric drug rather than the muscle relaxant and pain reliever Benson needed.

Additionally, Benson alleged that defendant Israel failed to authorize visits to Waupun Memorial Hospital for prescribed physical therapy on ten of the twenty days in March and April of 1981 for which it was scheduled. And, although Israel authorized Benson's visits to Waupun Memorial Hospital for physical therapy on ten days in March and April of 1981, he refused to permit Benson to stay for both scheduled therapy sessions. Finally, on May 6, 1982, Benson was returned to a double cell pursuant to the policy of defendants Cady and Israel, a move that further aggravated his injuries.

As a result of the acts and omissions of defendants, Benson allegedly sustained injuries to his neck, right shoulder and right arm, some of which are permanent and will require further treatment. These injuries allegedly have restricted his ability to function in his trade as a tailor and precluded his enjoyment of certain enumerated activities.

Benson's second claim is that defendants Cady and Israel have promulgated a racially discriminatory double celling policy. This discrimination claim, the claim against Israel for refusing to authorize Benson's visits to a local hospital for prescribed physical therapy, and a pendent state claim based upon this conduct by Israel survived the motion to dismiss. The eighth amendment claims against all other defendants and the remaining pendent state claims were dismissed, erroneously Benson argues.

II.

We pause for a moment to articulate our standard of review and some general principles applicable to eighth amendment tort actions. Benson's amended complaint, which was drafted by an attorney, is not entitled to the protection afforded pro se complaints under Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Rather, the sufficiency of the amended complaint is to be appraised under the standard set forth in Conley v. Gibson, 355 U.S. 41, 42, 45-46, 78 S.Ct. 99, 100, 101-102, 2 L.Ed.2d 80 (1957):

[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Although the Federal Rules of Civil Procedure do not require a plaintiff "to set out in detail the facts upon which he bases his claim," id. at 47, 78 S.Ct. at 102, he must "set out sufficient factual matter to outline the elements of his cause of action or claim, proof of which is essential to his recovery." Daves v. Hawaiian Dredging Co., 114 F.Supp. 643, 645 (D.Haw.1953) (quoted in Sutliff, Inc. v. Donovan Companies, Inc., 727 F.2d 648, 654 (7th Cir.1984)). If the factual allegations narrated in the complaint are insufficient to outline an eighth amendment violation, attaching to these facts the bare legal conclusion that defendants were deliberately indifferent will not save the complaint. Id.

A section 1983 action is a tort damage action even though the duty the defendant is alleged to have breached is created by the Constitution or federal law. Lossman v. Pekarske, 707 F.2d 288, 290 (7th Cir.1983). The elements of a cause of action under section 1983 are (1) a constitutionally recognized duty on the part of the state to conform to a certain standard of conduct for the protection of others against an unreasonable risk of harm; (2) a failure to conform to that standard; (3) a causal connection between the state's failure and the plaintiff's injury; and (4) actual damage. Jackson v. Byrne, 738 F.2d 1443, 1446 (7th Cir.1983) (duty); Parrett v. City of Connersville, Ind., 737 F.2d 690, 695 (7th Cir.1984) (causal connection); Lossman, 707 F.2d at 290-91 (actual damage).

It is axiomatic that a plaintiff can prove no deprivation of his constitutional rights under section 1983 unless the state has a constitutionally recognized duty to protect the plaintiff. Jackson, 738 F.2d at 1446. We have stated that, as a general rule, the Constitution, which is a "charter of negative liberties," does not require the state to provide even elementary protective services to its citizens. Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982). See also Beard v. O'Neal, 728 F.2d 894, 899 (7th Cir.1984). But if the state has created a custodial or other special relationship with a particular class of individuals, courts have recognized that the state may have a constitutionally recognized "affirmative duty" to provide certain "elementary protective services." Jackson, 738 F.2d at 1446-47. Prison inmates represent one such class. In Estelle v. Gamble, 429 U.S. 97, 104-06, 97 S.Ct. 285, 291-92, 50 L.Ed.2d 251 (1976), the Supreme Court recognized a constitutional duty on the part of the state not to be deliberately indifferent to the medical needs of its prison inmates. Although this eighth amendment duty has been phrased negatively by the Supreme Court, we have stated that the state has an affirmative obligation "to provide persons in its custody with a medical care system that meets minimal standards of adequacy." Wellman v. Faulkner, 715 F.2d 269, 271 (7th Cir.1983).

The eighth amendment duty articulated in Estelle has not been limited to elementary services necessary to protect inmates' health. The state also has a duty to protect inmates from unwarranted physical injury. Deliberate indifference on the part of prison officials to violent attacks and sexual assaults by other inmates is proscribed by the eighth amendment. Walsh v. Brewer, 733 F.2d 473, 476 (7th Cir.1984); Ramos v. Lamm, 639 F.2d 559, 572 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Little v. Walker, 552 F.2d 193, 197 (7th Cir.1977), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 530 (1978).

It has long been established, however, that negligence, evidenced by,...