Opinion
C.A. No. 04-012 ML
January 22, 2004
Report and Recommendation
Confined at the Adult Correctional Institutions, Cranston, Rhode Island, pro se plaintiff Jose Franco filed a Complaint pursuant to 42 U.S.C. § 1983, together with a request to proceed in forma pauperis. Plaintiff brought this action alleging a violation of his Eighth Amendment rights and names as a defendant Nurse Dale, an employee of the Rhode Island Department of Corrections.
The factual basis of Franco's complaint is as follows: Plaintiff claims that he was assigned a bottle of cocoa butter by a Nurse Bailey for his dry and itchy skin. See Complaint at 3. Plaintiff alleges that Nurse Dale, without authorization from Nurse Bailey, removed the lotion from the "order." Id. As relief, Franco "wants the courts to grant [him] back [his] lotion." Id.
Section 1915 A of Title 28 of the United States Code directs the Court to review prisoner complaints before docketing or soon thereafter to identify cognizable claims or dismiss the complaint if it fails to state a claim upon which relief can be granted. 28 U.S.C. § 1915A; See also 28 U.S.C. § 1915(e)(2). Pursuant to this directive, this Court finds that the instant complaint fails to state a claim upon which relief can be granted.
The Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." See U.S. CONST amend. VIII. The cruel and unusual punishments clause was designed to protect those convicted of crimes, and can limit the type of punishment imposed. Ingrham v. Wright, 430 U.S. 651, 664 (1977). After an individual is incarcerated, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment. Whitely v. Albers, 475 U.S. 312, 318-319 (1986).
When an inmate complains of inadequate medical treatment, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976). A "serious medical need" is one that "has been diagnosed by a physician as mandating treatment, or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Mahan v. Plymouth County House of Corrections, 64 F.3d 14 (1st Cir 1995). Here, I find plaintiffs allegations about "dry and itchy" skin not sufficiently serious to come within the reach of the Eighth Amendment. Accordingly, plaintiff's complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6).
For the reasons set forth above, I recommend that plaintiff's motion to proceed in forma pauperis be denied and his complaint be dismissed. Any objection to this report and recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b). Failure to file timely, specific objection to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam);Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).