Moreover, in Sandin v. Conner, 515 U.S. 472, 484 (1995), the Supreme Court held that state-
created liberty interests are “generally limited to freedom from restraint which, while not exceeding
the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause
of ils own force, nonetheless imposes atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life.” The Seventh Circuit has held that disciplinary segregation in
Illinois is not an atypical, significant deprivation. Williams v. Ramos, 71 F.3d 1246, 1249 (7" Cir.
1995). Although Lynch complains about the conditions in segregation, he has not alleged that he
suffered any physical injury as a result of not being able to go to the yard or being celled with several
inmates who were mentally ill. Under 42 U.S.C. § 1997e(e), “no Federal civil action may be brought
by a prisoner , . . for mental or emotional injury suffered while in custody without a prior showing
of physical injury.”

An inmate may not use a civil rights action in an attempt to gain release or shorten his time
of imprisonment or supervised release; his sole remedy is by way of a petition for a writ of habeas
corpus, Preiser v. Rodriguez, 411 U.S. 475 (1973), with its concomitant requirement of exhaustion
of state remedies. See Rose v. Lundy, 455 U.S. 509, 518 (1982). Lynch accordingly may scek
restoration of his good time only through a petition for a writ of habeas corpus after he has exhausted
his state remedies.

Allegations of an inadequate investigation does not state a violation of a plaintiff's civil
rights. See Hanrahan v. Lane, 747 F.2d 1137, 1142 (7" Cir. 1984); McDonald v. State of Hlinois,
557 F.2d 596 (7" Cir,), cert. denied, 434 U.S, 966 (1977), Moreover, violations of state laws or
procedural guarantees do not of themselves constitute a violation of federal rights protected under

§ 1983. See Archie v. City of Racine, 847 F.2d 1211, 1217 (7" Cir. 1988) (en banc), cert. denied,



v. Illinois Dept. of Corrections, 150 F.3d 810, 812 (7" Cir. 1998). If this court finds that appeal is
not taken in good faith, and the Court of Appeals agrees, he will not be permitted to proceed in forma
Dauperis and pay the fec in installments, but will have o pay the fee immediately or the appeal will
be dismissed. 28 U.S.C. § 1915(a)(3). ‘To avoid a finding that the appeal is not taken in good faith,
a motion to proceed in forma pauperix on appeal should cxplain the grounds for the appeal. See

Hyche v. Christensen, 170 F.3d 769, 771 (7" Cir. 1999); Fed. R. App. P. 24(a)(1)(C).

IT IS SO ORDERED.

{

sok io B, CONLON, Judge

United States District Court

DATED: g L [ OL-



In September 2001, Lynch’s migraine medication was discontinued without explanation.
During the third week of October 2001, Dr. Ngu examined Lynch and ordered medication for his
migraine headaches, Dr. Smith later canceled the prescription.

On November 4, 2001, Dr. Tilden examined Lynch for complaints of pain in his lower neck,
left shoulder, arm, wrist, hand, and knee. X-rays were taken and revealed the Lynch’s 4", 5" and
6" cervical vertebrae were degenerated. Lynch was given a prescription for a mild pain reliever and
a muscle relaxant. Lynch asked to be examined by a bone specialist. Dr. Smith did not respond to
any of Lynch's requests.

‘The Eighth Amendment protects inmates from deliberate indifference to a serious injury or
medical need. See Chapman v, Keliner, 241 F.3d 842, 845 (7" Cir. 2001); Zentmeyer v. Kendall
County, 220 F.3d 805, 810 (7" Cir. 2000) (quoting Eytelle v. Gamble, 429 U.S. 97, 104 (1976).
Farmer v. Brennan, 511 U.S. 825, 837 (1994), holds that a prison official acts with deliberate
indifference when “the official knows of and disregards an excessive risk o inmate health or safety;”
and is both aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists and draws the inference. Neither negligence nor even gross negligence nor
incompetence is a sufficient basis for liability; rather, liability attaches only if the conduct is
intentional or criminally reckless. See Salazar v, City of Chicago, 940 F.2d 233, 238-39 (7" Cir.
1991) (noting that any act with a state of mind Jess than intent or criminal recklessness, such as
negligence or gross negligence, does not amount to punishment).

Allegations of negligence or medical malpractice or incompetence do not state an Eighth
Amendment claim. Gutierrez v, Peters, 111 F.3d 1364, 1374 (7" Cir.1997), These standards apply

both to prison guards and to medical personnel. However, the dissatisfaction or disagreement with



489 U.S. 1065 (1989), T_ynch accordingly has no claim in regard (o his charge of a failure to conduct
a prehearing investigation.

In the second part of his complaint, Lynch makes numerous complaints about his medical
care at Stateville. Lynch was transferred to Stateville on July 26, 2000. His medical file indicated
that he suffers from chronic sinusitis, migraine headaches for which he received prescription
medicine, and degenerative bone disease. Prior to his transfer he received two cortisone injections
to control inflamation and pain.

On August 4, 2000, Lynch submitted a Ictter to the medical administrator and acting medical
director, complaining that his medical problems, except for his chronic hypertension, had not been
addressed since his transfer.

Lynch saw Dr. Tilden for his hypertension the following week, but Dr. Tilden deferred
treatment of his other problems.

Lynch wrote numerous letters and filed several grievances; however, diagnostic examination
of his medical problems and medical treatment were deferred for about a year.

In January 2001, Lynch’s hypertension medicine was delayed for about two weeks, CMT
Heron told Lynch that the medicine was being delivered by UPS from Hanover, Maryland. Lynch
was then given Procardia to substitute for his regular medication. However, Lynch’s medical lite
clearly indicated that he was allergic to Procardia, Lynch took the medicine anyway and
subsequently became ill. Lynch’s regular medicine was delayed regularly over the next 12 months.

Lynch was given Midrin to control his migraine headaches and in July 2001, Dr. ‘Vilden

referred him to an ear, nose, and throat specialist. The specialist ordered further diagnostic

treatment, but Lynch never received it.



headaches. Lynch also was not sent for diagnostic tests as offen or as soon as he thought he should
be. However, nothing in Lynch’s complaint and altachments indicate that any of the defendants
acted with deliberate indifference to his serious medical needs, that is, knew of and disregarded an
excessive risk to his health.

Lynch encountered some delays in receiving his medicine lor hypertension. However, Lynch
states that he was told that this was because of a shipping delay, which is not evidence of deliberate
indifference. In fact, when Lynch complained about not receiving his medicine for hypertension, he
was given a substitute, to which he was allergic. Giving Lynch medication when the file stated that
he was allergic to it may be negligence or malpractice but it does not rise to the level of deliberate
indifference.

Lynch unfortunately has a number of medical problems that cause him pain and discomfort.
However, his obvious dissatisfaction or disagreement with the method of treatment or inability to
effect a final cure does not suggest that those who treated him exhibited deliberate indifference.

This suit is accordingly dismissed for failure to state a claim upon which relief may be
granted. Lynch is warmed that if'a prisoner has had a total of three federal cases or appeals dismissed
as frivolous, malicious, or failing to state a claim, he may not file suit in federal court without
prepaying the filing fee unless he is in imminent danger of serious physical injury. 28
U.S.C. § 1915(g), Ifthe wishes to appeal this dismissal, he may (ile a notice of appeal with this court
within 30 days of the entry of judgment. Rule 4(a)(4), Fed.R.App.P. If he does so, he will be liable
for the $105 appellate filing fee. Unless he is granted leave to proceed in forma pauperis, he will
have to pay the fee immediately. If he cannot do so, the appeal will be dismissed, but he will remain

liable for the fec and it will be deducted from his inmate trust fund account in installments. Evans



‘Minute Order Form (D6)

\b c Vite States District Court, Northern District of Hinois

Nessa ings [SUZANNE B.CONLON | Stine

CASE NUMBER 02 C 4789 DATE 4 / 2i / on
CASE Michael Lynch (A-15561) v. Lieutenant Robinson, et al.
TITLE

[[n the following box (a) indicate the party filing the motion, e.g, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented,’
MOTION: mee y

DOCKET ENTRY:

(1) im Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) Oo Answer brief to motion due, .__- Reply to answer briefdue___

(4) ma Ruling/Hearing onset for at

(5) o Status hearing[held/continued to] [set for/re-set for]on___——sset for__— at

(6) o Pretrial conference[held/continued to] [set for/re-set for}on__——ssetfor___ at ne

(7) oO Trial[set for/re-set for}on at

(8) a [Bench/Jury trial] [Hearing] held/continuedto at

(9) ao This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
QFRCP4(m) Ol General Rule 21 OFRCP41(ayt) OO FRCP41(a)(2).

ao [Other docket entry] Plaintiff's motion for leave to tile in forma pauperis is granted. The

complaint is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim, terminating case.
Any other pending motions are denied as moot. The court orders the trust fund officer at plaintiff's current
place of incarceration to deduct $ 9.10 from plaintiff's account for payment to the clerk of court as an
initial partial filing fee. A copy of this order shall be sent to the trust fund officer at Menard Correctional
Center. This dismissal counts as one of plaintiff's three allotted dismiss@ls under 28 U.S.C. § 1915(g).

dl ff [For further detail see attached Memorandum Opinion and

No nolives required, advised in open court.

No notices required, umber of notices

Notices mailed by judge's staff,

Notified counsel by telephone, date dackered

x Dockcting to mail notices,

x Mail AO 450 form.

dockoting Jeputy initials

Copy to judge/magistrate judge.

courtroom
cL deputy’s
initials

Date/time received in

central Clerk's Office ‘nila deputy initia



the method of treatment or inability to effect a final cure does not suggest that those who treat an
inmate exhibited deliberate indifference. Snipes v. DeTella, 95 F.3d 586 (7" Cir. 1996), cert. denied,
519 ULS. 1126 (1997); Estate of Cole v. Fromm, 94 F.3d 254 (7" Cir. 1996), cert. denied, 519 U.S.
1109 (1997); Meriwether v. Faulkner, 821 ¥.2d 408, 413 (7 Cir), cert, denied, 484 U.S. 935
(1987), The question of whether a certain diagnostic technique or form of treatment should be
prescribed “is a classic example of a matter for medical judgment.” Este//e, 429 U.S. at 107. A
prisoner docs not have a right to a particular type of medical treatment. Meriwether, 821 F.2d at 413.
Evidence that some medical professionals would have chosen a different course of treatment is
insufficient to make out a constitutional claim. /d. (citing Steele v. Choi, 82 F.3d 175, 179 (7"
Cir.1996)). A disagreement about which of many professionally acceptable treatment plans should
have been implemented might stale a cause of action for negligence, but is not actionable under the
Constitution. fd Mere differences of opinion among medical personnel regarding a patient's
appropriate treatment do not give rise to deliberate indifference. Hstedle, at 107, Cole at 261. A
plaintiff can show that medical professionals disregarded a serious medical need “only if the
professional’s subjective response was so inadequate that it demonstrated an absence of professional
judgment, that is, that no minimally competent professional would have so responded under those
circumstances.” Collignon v. Milwaukee County, 163 F.3d 982, 989 (7" Cir. 1998). Cole at 261-62.
“Society does not expect that prisoners will have unqualified access to health care,” Hudson v.
McMillian, 503 U.S. 1, 9 (1992).

Lynch’s complaint and copies of his letters, grievances, and the like demonstrate that Lynch

saw doctors on numerous occasions while he was at Stateville. It appears that Dr. Smith and Dr.

‘Tilden disagreed as to whether Lynch needed prescription medication for his sinusitis and migraine



of commissary for six months. Lynch grieved the ticket. On January 24, 2001, Warden Briley
ordered the Adjustment Committee to rehear the disciplinary report because of procedural errors.
The rehearing was held on February 2, 2001, Lynch’s witness was not called. Lynch never received
a summary report, and he served his full sentence. Lynch grieved the rehearing and the
Administrative Review Board recommended that the grievance be denied on August 31, 2001.

Lynch complains that while he was in segregation, he was not able to go to the yard and was
celled with several different inmates who cither threatened him or were mentally ill, He seeks
money damages and an injunction ordering the restoration of his good time and expungement of the
disciplinary ticket.

In Edwards v. Balisok, 520 U.S. 641, 648 (1997), the Supreme Court held that damage claims
in prison disciplinary proccedings, based on allegations that would necessarily imply the invalidity
of the punishment imposed, are not cognizable under § 1983 unless the finding of the Adjustment
Committee is reversed in some manner. If Lynch’s disciplinary report was (abricated and based on
a false reading of Lynch’s urine sample and if his witness could have cleared Lynch of the charges,
then proof of these allegations would undermine the validity of the disciplinary finding, Lynch has
not proffered any evidence that the findings of this disciplinary hearing have been reversed in some
manner, other than the rehearing that was ordered because of procedural errors. In fact, he grieved
the rehearing, and the ARB recommended that his gricvance be denied. Lynch’s claims for money
damages for the time he spent in segregation and for reduction in grade and denial of commissary
are therefore not cognizable under § 1983 unless and until the disciplinary action has been expunged

or overturned.



Under 28 U.S.C. § 1915(e)(2), the court is directed to dismiss a suit brought in forma
pauperis at any time if the court determines that it is frivolous or malicious, fails to state a claim on
which relief may be granted, or sccks monetary relief against a defendant who is immune {rom such
relief.

Lynch, who was confined at Stateville Correctional Center during the events of this
complaint, makes numerous claims in this voluminous complaint, Most center on the disciplinary
ticket he was written on October 31, 2000, and the remainder concern his medical care. The court
will consider cach in tum.

In September 2000, Lynch witnessed a correctional officer attack another inmate. Lynch
spoke with the supervising lieutenant Robinson about the incident and was told not to make waves
and enemies. During the third week of October, Robinson pulled Lynch out of the lunch line and,
while pat searching him, told him that encouraging other inmates to write grievances could be
construed as dangerous communications. On October 28, 2000, Lynch, along with about 15 other
inmates, was escorted to a dayroom for urine screening. Robinson was in charge of taking Lynch’s
sample, On October 31, 2000, Robinson wrote Lynch a disciplinary report charging him with
violating Rule 504(a) § 203, drugs and drug paraphernalia. Lynch claims that Officer Robinson
fabricated the report.

Hearing investigator McNair failed to conduct a prehearing investigation as required by the
Mlinois Administrative Code (LAC).

On November 3, 2000, Lynch appeared before a hearing committee composed of only one

officer, Hawkins, in violation of IAC rules, Lynch was founded guilty and given six months

segregation, six months of good time was revoked, reduction to C grade for six months, and denial



Dockere:

IN THE UNITED STATES DISTRICT COURT AUG 9 «
FOR THE NORTHERN DISTRICT OF ILLINOIS a2 2007
EASTERN DIVISION

MICHAEL LYNCH,
Plaintiff,
ve CASE NO. 02 C 4789

LIEUTENANT ROBINSON, et al.

JUDGE CONLON
Defendants.

we ESE

MEMORANDUM OPINION AND ORDER

Michael Lynch, currently an inmate at Menard Correctional Center, brings this pro se
complaint pursuant to 42 U.S.C. § 1983. The court finds that Lynch is unable to prepay the filing
fee, The court grants Lynch’s motion to proceed in forma pauperis and assesses an initial partial
filing fee of $ 9.10 pursuant to 28 U.S.C. § 1915(b)(1). The trust fund officer at Lynch’s current
place of incarceration is ordered to collect, when funds exist, the partial filing fee from Lynch’s trust
fund account and pay it directly to the clerk of court. Thereafter, the trust fund officer at the
correctional facility where Lynch is confined is directed to collect monthly payments from Lynch’s
trust fund account in the amount of 20% of the preceding month’s income credited to the account.
Monthly payments collected from Lynch’s trust fund account shall be forwarded to the clerk of court
each time the account balance exceeds $10 until the full $150 filing fee is paid. Separate deductions
and payments shall be made with respect to each action or appeal filed by Lynch. All payments shall
be sent to the Clerk, United States District Court, 219 S$. Dearborn St., Chicago, IL 60604, attn:

Fiscal Dept., and shall clearly identify Lynch’s name and the case number assigned to this action.

»