Emory v. Duckworth, S 81-176.

• Decision Date: 01 February 1983
• Docket Number: No. S 81-176.,S 81-176.
• Citation: 555 F. Supp. 985
• Parties: Michael EMORY, Plaintiff, v. Jack R. DUCKWORTH, Defendant.
• Court: U.S. District Court — Northern District of Indiana

555 F. Supp. 985

Michael EMORY, Plaintiff, v. Jack R. DUCKWORTH, Defendant.

No. S 81-176.

United States District Court, N.D. Indiana, South Bend Division.

February 1, 1983.

Michael Emory, pro se.

Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, Ind., for defendant.

MEMORANDUM AND ORDER

SHARP, Chief Judge.

This case was filed pursuant to 42 U.S.C. § 1983 by an inmate at the Indiana State Prison, Michigan City, Indiana, against the prison's superintendent, Jack R. Duckworth. In some of the plaintiff's pleadings subsequent to the initial complaint, the Indiana Attorney General appeared in the captions as a party-defendant. However, plaintiff declared in his Answer to Defendant's Motion to Dismiss that it was never his intention to sue the Indiana Attorney General. Accordingly, this Court ordered the dismissal of the Indiana Attorney General as a defendant in this action on August 16, 1982.

A pretrial conference was held in this case on August 24, 1982 at the Indiana State Prison. At that time this Court ordered that the defendant's earlier motion to dismiss be converted to a motion for summary judgment. Further, the plaintiff was ordered to respond to the defendant's motion for summary judgment not later than January 3, 1983.

On November 4, 1982, the defendant filed a formal Motion for Summary Judgment with this Court, supplemented by a Memorandum and, later, by affidavits of defendant Duckworth and two correctional officers. Included in defendant's motion was the following statement:

A memorandum in support and affidavits are attached hereto and incorporated herein by reference. Rule 56(a) sic provides in part "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denial of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." Factual assertion contained in the attached affidavits will be accepted as true by the Court in the absence of affidavits or other material filed by Plaintiff contradicting the assertions.

Notwithstanding this Court's order at the pretrial conference that plaintiff was to file a response to the defendant's motion for summary judgment not later than January 3, 1983, the plaintiff ignored both this Court's order and the admonition quoted above as set forth in the defendant's motion. Even so, this Court issued a second order on January 7, 1983, citing Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982), and ordering the plaintiff to respond by January 24, 1983. To date, the plaintiff has failed to comply with this Court's orders. Plaintiff has filed nothing in this case for more than ten months.

Before proceeding to a summary disposition of this matter under Rule 7(b) of the Rules of the United States District Court for the Northern District of Indiana, this Court must direct its attention to plaintiff's motion for the appointment of counsel.

There is no constitutional right to appointed counsel in a civil case. Thomas v. Pate, 493 F.2d 151 (7th Cir.), cert. den., 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1974). Rather, the decision whether to appoint counsel in a civil rights action rests within the sound discretion of the trial court. McBride v. Soos, 594 F.2d 610 (7th Cir.1979). When considering motions for the appointment of counsel, this Court is guided by the standards set forth in Maclin v. Freake, 650 F.2d 885 (7th Cir.1981). These standards include, but are not limited to, consideration of the legal and factual merits of the plaintiff's claim, the complexity of the issues presented, and the plaintiff's physical and intellectual abilities to prosecute his claim. See also, McKeever v. Israel, 689 F.2d 1315 (7th Cir.1982); Caruth v. Pinkney, 683 F.2d 1044 (7th Cir.1982). A careful review of the complete file in this case in light of the standards enunciated in Maclin, McKeever, and Caruth, supra, leads this Court to the conclusion that plaintiff's motion for the appointment of counsel should be denied. The Court makes this decision within the sound exercise of its discretion, based on the lack of any merit to the claims presented, the relative simplicity of the facts surrounding the incident complained of, and the plaintiff's clear ability to articulate adequately the legal and factual bases of his allegations. Accordingly, plaintiff's request for appointed counsel is DENIED.

Proceeding now to the merits of plaintiff's case, the facts as asserted by the plaintiff in his complaint are that on or about December 30, 1980, the plaintiff arrived at the prison and was housed in a cell in the Admissions and Orientation Unit (A & O). There had recently been a fire in that cell, and plaintiff alleges that the cell was covered with the powdery residue of a substance emitted by fire extinguishers, which caused him to itch. He further asserts that on January 2, 1981, the commode in his cell broke into pieces while he was sitting on it causing him injury. He also speculates that the fire which had previously occurred in that cell weakened the commode and the neglect on the part of prison officials in failing to repair or renovate the cell after the fire resulted in his injury. He alleges that these facts violate his Eighth and Fourteenth Amendment rights.

In the motion to dismiss previously filed with this Court the defendant asserted that there was no direct personal involvement on the part of the defendant and the complaint alleged, at most, only negligent behaviour on the part of the defendant or other prison officials. The plaintiff responded to this allegation by asserting that pursuant to Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), "there was nothing in the language of § 1983 or its legislative history which limits the statute solely to intentional deprivations and that because a wrong was negligently as opposed to intentionally committed did not foreclose the possibility that such an action could be brought under § 1983."

It is true that the Supreme Court of the United States held in Parratt that negligence can be sufficient to state a claim for deprivation of one's property rights. However, it is equally true that there is no uniform answer to the question whether mere negligence is sufficient to state a claim under § 1983 for non-property, i.e., liberty interest claims. 451 U.S. at 533, 101 S.Ct. at 1911; see also, Juncker v. Tinney, 549 F.Supp. 574 (D.Md.1982); Riley v. Johnson, 528 F.Supp. 333 (E.D.Mich.1981); Watson v. McGee, 527 F.Supp. 234 (S.D.Ohio 1981); Haygood v. Younger, 527 F.Supp. 808 (E.D.Cal.1981); Eberle v. Baumfalk, 524 F.Supp. 515 (N.D.Ill.1981); Peery v. Davis, 524 F.Supp. 107 (E.D.Va.1981). One must therefore look to the nature of the right involved. 451 U.S. at 548, 101 S.Ct. at 1919 (Powell, J., concurring in result).

The claim in the present case is not a deprivation of property in violation of the Fifth and Fourteenth Amendments but a claim of the imposition of cruel and unusual punishment under the Eighth Amendment. The Eighth Amendment prohibits punishments or conditions that "involve the unnecessary or wanton infliction of pain." Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2398, 69 L.Ed.2d 59 (1981). The Seventh Circuit has described this standard as one of whether prison officials intentionally inflicted excessive or grossly severe punishment on a prisoner or knowingly maintained conditions so harsh as to shock the general conscience. Stringer v. Rowe, 616 F.2d 993, 1000-1001 (7th Cir.1980); United States ex rel. Miller v. Twomey, 479 F.2d 701, 719-20 (7th Cir.1973), cert. den. sub nom., Gutierrez v. Dept. of Public Safety, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 102 (1974); see also, Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir.1982).

"Wanton" infliction of pain or intentional or knowing conduct obviously requires a level of culpability above mere negligence. Thus, the Seventh Circuit has held that isolated acts of violence do not constitute cruel and unusual punishment, without an inquiry as to whether or not those isolated acts resulted from negligence or even from some greater culpability. Madyun v. Thompson, 657 F.2d 868, 875 (7th Cir.1981). The Fifth Circuit, after Parratt, has held that "A prisoner has a right to be protected from the constant threat of violence and from sexual assault." Jones v. Diamond, 636 F.2d 1364, 1373 (5th Cir.1981), cert. granted sub nom., Ledbetter v. Jones, 452 U.S. 959, 101 S.Ct. 3106, 69 L.Ed.2d 970. By focusing only on whether there is a constant threat, the Fifth Circuit has tacitly stated that simple negligence on a single, unpredicted occasion is not of constitutional magnitude. This is consistent with pre-Parratt cases concerning offender safety. In Woodhous v. Commonwealth of Virginia, 487 F.2d 889 (4th Cir.1973), the Court held that a prisoner has a right to be "protected from constant threat of violence and sexual assault by his fellow inmates ...." Id., at 890. It does not appear, however, that any circuit has adopted a negligence standard for personal injury claims arising in prisoner petitions brought under 42 U.S.C. § 1983. The reason for this may very well be language in Estelle v. Gamble, 429 U.S. 97 at 106, 97 S.Ct. 285 at 292, 50 L.Ed.2d 251, wherein the court declared that, at least insofar as the Eighth Amendment is concerned a showing of deliberate indifference, not negligence, would be required to state a cognizable claim. See also, Little v. Walker, 552 F.2d 193, 197 n. 8 (7th Cir.1977), cert. den., 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 530 (1978); Beard v. Mitchell, 604 F.2d 485, 494 (7th Cir.1981) (intentional conduct or recklessness standard not limited to Eighth Amendment issues); Starstead v. City of Superior, 533 F.Supp. 1365, 1370 n. 4 (W.D. Wis.1982...