Seymour F. X. (Cotton, Jr.) v. Terrell Don Hutto, Commissioner, Arkansas Department of CorrectionSeymour F. X. (Cotton, Jr.) v. Terrell Don Hutto, Commissioner, Arkansas Department of Correction
We have consolidated under one docket number appeals from two civil rights complaints by Seymour F. X. Cotton, Jr., in which other prisoners have joinеd in some of the allegations. We treat the two cases in separate parts of this opinion.
I. Seymour F. X. [Cotton, Jr.], et al. v. Terrell Don Hutto, etc. D.C. No. PB~ 76-C-85.
This § 1983 action was brought by six inmates of the East Building (the maximum sеcurity facility) at the Cummins Unit, Arkansas Department of Correction. The defendants are Terrell Don Hutto (commissioner of the Arkansas Department of Correction), A. L. Lockhart (Cummins’ superintendent), and various employees of the Department of Correction. The complaint seeks an injunction, dаmages, and declaratory relief to redress what the plaintiffs allege to be unconstitutional conditions of confinement.
The district court dismissed thе action prior to service on defendants. Plaintiffs appeal.
The complaint includes the following allegations:
1) On January 1, 1976, the prisoners were not allowed to watch the 11:00 p. m. news.
2) Some оf the prisoners cannot afford newspapers or radios.
3) The prisoners are never allowed to watch the 6:00 p. m. news. 1
4) The prisoners have no gym privileges.
5) The prisoners arе allowed to leave the building only twice a day, at meal time.
6) The prisoners are allowed to shower only three times a week, for three minutes at a time.
7) The prisoners’ clothes are ragged, and not as well laundered as those of other prisoners.
9) The prisoners’ mattresses are thin.
10) There is no air conditioning in the summer.
These recited charges do not independently or conjunctively show a violation of the prisoners’ constitutional rights.
A second group of grievances contains complаints of one of the six prisoners, Bobby James Roberts. The district court indicated that Roberts’ claims were subject to dismissal because they had been rаised in a separate action pending before the court. Appellants do not challenge this ruling on appeal, nor does the reсord show any error in that dismissal.
A third group of complaints relates to medical care. These prisoners state, “It’s impossible for the prisoners of the East Bldg, not to stay sick for which they’re only allowed to complain to the prison doctor on Tuesday if he happened to have his self placed on the sick-call list which is brought around to the cells on Sunday night.”
This allegation fails to state a claim for relief. It does not assert that a рarticular prisoner was denied medical care on a particular occasion or was harmed thereby.
See Ellingburg v. King,
An additional allеgation deserves comment. Appellants assert that “sadistic wardens turn the air conditioner or blower on back in the cell area during showering of the prisoners, and during the winter months.” This allegation must be read in light of the pattern of “habitual harassment of inmates by prison personnel, through physical аnd mental abuse * * * ” which has been found to exist at Cummins.
See Finney v. Arkansas Bd. of Corrections,
If the conditions complained of grow into constitutional violations, the prisoners’ rights are protected. Conditions in Arkаnsas prisons, including adequacy of medical care, remain before the federal court. See Finney v. Arkansas Bd. of Corrections, supra. In dismissing these actions, the district court also commеnted on the still pending litigation, aspects which we considered in Finney, relating to substandard conditions in the Arkansas prisons. The district court in this context said:
The Court has general prison conditions under advisement in Holt v. Hutto, No. PB-69 C-24, and consolidated cases. Even if they rose to the level of a constitutional violation, the allegations of petitioners in the instant case will not aid the Court in the resolution of those issues.
Under these circumstances and considering the nature of the complaints, 2 the district court did not abuse its discretion in declining to hear the separate complaints made by the prisoner-plaintiffs in this action.
II. Seymour F. X. [Cotton, Jr.] v. Terrell Don Hutto, etc. — D.C. No. PB-76-C-89.
This action under § 1983 was brought by Seymour F. X. Cotton, Jr., individually.
Cotton alleges that on December 25,1973, he was beaten by several wardens while in punitive isolation. As a result of the beating, he contends, he sufferеd a hernia, which was diagnosed by the prison doctor, Dr. Smiley, shortly after the beating. He asserts that the hernia was later confirmed
Later, Cotton alleges, a disciplinary board forced him to submit to a physical examination. Cotton states:
On or about September 9, 1975, petitioner was bodily forced from his cell by defendants Ashley and Dugan and taken to the infirmary. There petitioner was forced by Ashley and Doggins [sic] to yield to a hurried, 15-second, exam by defendant Dr. Adam. At the conclusion of this unprofessional and hasty exаm Dr. Adams classified petitioner A-l and capable of doing field labor.
Appellant filed a complaint containing these allegations on March 9, 1976. He prayed for various forms of equitable relief, including an order that he be given a hernia operation and that he be excused from field work until the operation is given.
The district court dismissed the complaint on its own motion, concluding that the failure to afford a hernia operatiоn resulted from a mere difference of opinion over a matter of medical judgment. 3 This appeal followed.
The facts pleaded in this case do not demonstratе a disagreement between prisoner and prison administration over proper medical treatment. The facts pleaded (particulаrly the cursory nature of the examination), if proven, might well show such “deliberate indifference” to a request for medical treatment as to warrant § 1983 relief.
See Wilbron v. Hutto,
supra;
Williams v. Vincent,
We think the summary dismissal of this aspect of Cotton’s complaint (PB-76-C-89) was inappropriate. This claim is remanded to the district court for further prоceedings. 4
In summary, we affirm the dismissal in all proceedings except Cotton’s personal claim relating to his disability and medical problems arising from an alleged hernia.
Notes
. The complaint does not allege that the prisoners were denied access to all news of outside events, only that рarticular means of access to outside news were limited.
. The allegations made here are unlikely to give rise to any substantial claim for dаmages by any one of the prisoners.
. The district court may deem it proper in its discretion to consolidate this complaint of Cotton’s with pending рroceedings which relate to medical care questions arising at Cummins.
. The district court also treated the complaint as one attempting to state a claim for the beating which led to the hernia. The court concluded that this claim was barred by the statute of limitations. Even the most liberal rеading of the complaint reveals, however, that no claim for the beating is meant to be stated here. The guards who allegedly beat apрellant are not named as defendants. The relief sought is prospective only, dealing with the administration of medical care.
Therefore, the statute of limitations problem considered by the district court is not an issue in this case, and we express no opinion on the validity of that court’s conclusion on the question.