Patmore v. Carlson, Civ. No. 73-307-E.

• Decision Date: 28 April 1975
• Docket Number: Civ. No. 73-307-E.
• Citation: 392 F. Supp. 737
• Parties: James D. PATMORE, Plaintiff, v. Norman A. CARLSON, Director Federal Bureau of Prisons, et al., Defendants.
• Court: U.S. District Court — Eastern District of Illinois

392 F. Supp. 737

James D. PATMORE, Plaintiff, v. Norman A. CARLSON, Director Federal Bureau of Prisons, et al., Defendants.

Civ. No. 73-307-E.

United States District Court, E. D. Illinois.

April 28, 1975.

James D. Patmore, pro se.

Henry A. Schwarz, U. S. Atty., East St. Louis, Ill., William C. Evers, III, Asst. U. S. Atty., for defendants.

ORDER

FOREMAN, District Judge:

This case is before the Court on defendants' Motion to Dismiss. Several grounds and issues are raised with the Motion to Dismiss. The Court will discuss each in turn.

Plaintiff, a prisoner in Marion Federal Penitentiary, Marion, Illinois, has filed suit under 28 U.S.C. §§ 1331, 2201, and 2202, alleging that defendants, Director of Federal Bureau of Prisons, Warden and Correctional Supervisor deprived plaintiff of rights, privileges and immunities under the First, Fifth, Sixth, Eighth and Ninth Amendments to the Constitution of the United States. Specifically, plaintiff alleges: (1) that he has suffered cruel and unusual punishment by defendants for a year; (2) that the Correctional Supervisor assaulted him with a club, knocked him to the floor and further assaulted him (plaintiff contends that this was attempted murder); (3) that he has been subjected to physical and mental harassment; (4) that he has been denied proper medical care and safekeeping; (5) that defendants are guilty of contributory negligence since plaintiff found a razor blade near his cell; and (6) that the controversy exceeds $10,000. Plaintiff prays for an injunction or a hearing, declaratory relief and $50,000 in damages.

Defendants contend that since plaintiff was transferred to the United States Penitentiary, Terre Haute, Indiana, in December, 1973 that part of plaintiff's prayer for relief is moot. The Court agrees that plaintiff's request for an injunction and for a declaratory judgment are now moot.

In their Motion to Dismiss, point 7(d), defendants state, "Venue would be improper in the Eastern District of Illinois, since defendant Carlson is not a resident of the Eastern District of Illinois". This Court disagrees with defendants' conclusion. 28 U.S.C. § 1391(e) states in part, "A civil action in which each defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, may, except as otherwise provided by law, be brought in any judicial district in which: . . . (2) the cause of action arose . . .". Plaintiff's cause of action arose in November, 1973 when he was a prisoner lodged in Marion Federal Penitentiary, Marion, Illinois. This penitentiary is within the Eastern District of Illinois.

Defendants contend that plaintiff has failed to exhaust all of his administrative remedies which is a prerequisite to a tort action against the United States under 28 U.S.C. § 2680. This Court views this contention as irrelevant since plaintiff has sued under § 1331, raising a federal question, and not under the tort claims act.

Defendants contend that suits against Government employees must also be brought against the United States. Defendants cite Malone v. Bowdoin, 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962) and Larson v. Domestic and Foreign Commerce Corporation, 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). This Court disagrees with defendants' conclusion. The Malone case dealt with land and contained no allegation that the officer had exceeded his delegated powers as an officer of the United States. In the Larson case, the Supreme Court noted that if the actions of an officer do not conflict with the terms of his statutory authority, then they are actions of the sovereign. 337 U.S. 682, 689-697, 69 S.Ct. 1457, 93 L.Ed. 1628. The contention in the instant proceeding is that the defendants have exceeded their statutory authority in their actions. Thus, the Court rejects the defendants' argument.

The final point to consider is whether or not there is a federal question and a claim upon which relief can be granted.

In plaintiff's complaint, point eleven (complaint, page 2), he states: "The plaintiff has been denied proper medical care and safekeeping, in violation of the Bureau of Prisons Policy Statement." The Seventh Circuit has noted in Thomas v. Pate, 493 F.2d 151 (7th Cir. 1974), cert. denied in 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 ". . . that prison officials are vested with broad discretion in determining the nature and character of medical treatment afforded to . . . prisoners." Supra at 157. Federal Courts will not inquire into the adequacy or sufficiency of medical care available at prisons except where the inmate has presented exceptional circumstances. Pinkston v. Bensinger, 359 F.Supp. 95 (N.D.Ill.1973). Courts do not wish to be in the position of second-guessing physicians in their determination of the proper treatment. For a claim of medical mistreatment to rise to a constitutional proportion there must be a showing of potential or real substantial harm. 493 F.2d at 157-158. There is no such showing of "substantial harm" in the instant case.

However, the allegations of plaintiff that he was struck with a club by one of the defendants, knocked to the floor and struck repeatedly again, presents a different situation. It is arguable that such an allegation is an allegation of deprivation of rights granted under the Fifth and Eighth Amendments to the Constitution. The question becomes one of whether or not plaintiff can recover for such deprivations.

Plaintiff has asserted jurisdiction on the basis of 28 U.S.C. § 1331. His allegation of a deprivation...