Harold Nance v. Walter C. Kelly, Superintendent, Attica Correctional Facility

I dissent. We should affirm the district judge’s wise dismissal of this in forma pauperis complaint under 28 U.S.C. § 1915(d), because the claim is based on not one, but two “indisputably meritless legal theories].” Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1835, 104 L.Ed.2d 338 (1989).

First, the majority concludes that Nance’s allegation that he was deliberately denied medical treatment states a cognizable claim of cruel and unusual punishment under the eighth amendment. I cannot join in that conclusion. To sink to the level of a constitutional violation a prison’s medical…