to vomit continuously; his cell contained no light or window which damaged his sight; his requests to see an eye doctor were denied; his requests for medical treatment for muscle spasms were denied; his requests for medical treatment and medicine prescribed for a skin condition were denied; he was periodically denied exercise for five days at a time and only allowed outdoor exercise on the sunniest days.
With respect to the conditions of plaintiff's confinement, it is well established that solitary confinement is not per se cruel and unusual punishment and that the temporary inconveniences and discomforts incident thereto cannot be regarded as a basis for judicial relief. United States ex rel. Tyrrell v. Speaker, supra at 1202; Ford v. Board of Managers of New Jersey State Prison, 407 F.2d 937, 940 (3d Cir. 1969); Bauer v. Sielaff, 372 F. Supp. 1104, 1109 (E.D. Pa. 1974); United States ex rel. Bracey v. Rundle, 368 F. Supp. 1186, 1191 (E.D. Pa. 1973). However, conditions of confinement of inhuman and barbaric proportions which shock the conscience of the court constitute cruel and unusual punishment and are actionable under the Civil Rights Act. See, e.g., Wright v. McMann, 387 F.2d 519, 521, 525 (2d Cir. 1967) (allegations of solitary confinement in an unheated cell with open windows in winter encrusted with slime and human excrement without clothing or rudimentary hygienic supplies under threat of beatings would, if established, constitute cruel and unusual punishment.) Knuckles v. Prasse, 302 F. Supp. 1036, 1061-1062 (E.D. Pa. 1969), aff'd, 435 F.2d 1255 (3d Cir. 1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2262, 29 L. Ed. 2d 717 (1971) (Confinement of two prisoners for 2 1/2 days in a cell 6 ' x 9 ' 11" with no window or light, a single bed, no clothing or toilet articles and a malfunctioning toilet constituted cruel and unusual punishment.). See also Landman v. Royster, 333 F. Supp. 621, 648-649 (E.D. Va. 1971); Jordan v. Fitzharris, 257 F. Supp. 674 (N.D. Cal. 1966). This constitutional standard of "cruel and unusual punishment" is not readily adaptable to precise mathematical application. It rather depends on a careful analysis of the totality of circumstances in each case. United States ex rel. Bracey v. Rundle, supra at 1191. In the instant case, all of the facts concerning the conditions of plaintiff's confinement have not been presented to the court.
Until the record is more fully developed, it cannot be said at this stage that the plaintiff can prove no set of facts which would entitle him to relief on the basis of "cruel and unusual punishment." This is especially true in the instant case, because in addition to the allegations concerning confinement conditions, plaintiff has also alleged several instances of medical treatment denial to support his claim of "cruel and unusual punishment." Although it is clear that claims of mere negligent medical treatment are not cognizable under the Civil Rights Act, Gittlemacker v. Prasse, 428 F.2d 1, 5-6 (3d Cir. 1970); Church v. Hegstrom, 416 F.2d 449, 450-451 (2d Cir. 1969), deliberate denial of necessary medical treatment can constitute "cruel and unusual punishment." Martinez v. Mancusi, 443 F.2d 921, 923-925 (2d Cir. 1970); United States ex rel. Ingram v. Montgomery County Prison Board, 369 F. Supp. 873, 874-875 (E.D. Pa. 1974); Ramsey v. Ciccone, 310 F. Supp. 600, 604-605 (W.D. Mo. 1970). Plaintiff's allegations of medical treatment denial, which are supported by an uncontroverted affidavit, are, therefore, clearly sufficient to establish a claim for relief on the basis of "cruel and unusual punishment."
Plaintiff's complaint also avers interference with his mail delivery as certain letters and publications mailed to him were never received. In his affidavit, plaintiff further states that literature of a political nature to which he had subscribed was never received despite invoices indicating that the literature had been mailed. With respect to prisoner mail, it is clear that state prison officials do not have unfettered discretion to censor or restrict an inmate's mail and interference with a prisoner's mail can give rise to constitutional claims. Gray v. Creamer, 465 F.2d 179, 186 (3d Cir. 1972). In the instant case, it cannot be determined from either the plaintiff's complaint or affidavit whether the nondelivery of mail was the result of censorship on the part of the defendants or mishandling on the part of delivery personnel. However, giving the complaint the liberal construction that I must and resolving all factual inferences against the defendants, it cannot be said that plaintiff's allegations do not raise potentially cognizable claims under the fourteenth amendment. Dismissal is, therefore, inappropriate.
Plaintiff's final claim is for restitution for personal belongings which were missing after his property was sent to him in the maximum security cell block. It must be emphasized that to state a claim under the civil rights act, a plaintiff must allege conduct which deprives him of rights, privileges or immunities secured to him by the Constitution or laws of the United States. Howell v. Cataldi, 464 F.2d 272, 279 (3d Cir. 1972); Gittlemacker v. Prasse, supra at 6; Basista v. Weir, 340 F.2d 74, 79 (3d Cir. 1965). In this regard, "it becomes important to delineate that conduct which is actionable in state courts as a tort, and that which is actionable in federal courts under § 1983. The two rights of action do not always stand in pari materia. Some common law and statutory torts, although actionable in a state forum, do not rise to constitutional dimensions." Howell v. Cataldi, supra at 278. In the instant case, even assuming that plaintiff could establish that defendants are liable for the loss of his personal articles, it would seem that such liability would be founded on either a theory of common law negligence or breach of a state statutory duty -- neither of which are cognizable actions under the Civil Rights Act. Id. Plaintiff's claim for restitution should, therefore, be dismissed. However, since this case will involve litigation on the other issues raised by plaintiff, there is no reason to prevent plaintiff from presenting at that time any evidence which would demonstrate that his restitution claim is based on constitutional or federal law and not state tort law. Cf. United States ex rel. Tyrrell v. Speaker, supra at 1202; Gray v. Creamer, supra at 187.