Opinion
Case No. CIV-17-245-F
03-23-2017
ROBERT V. WONSCH, Plaintiff, v. ARAMARK CORRECTIONAL SERVICES, LLC, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, appearing pro se, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his federal constitutional rights. Plaintiff also alleges violations of "Federal Trade Laws." The matter has been referred by United States District Judge Stephen P. Friot for proposed findings and recommendations consistent with 28 U.S.C. § 636(b)(1)(B) and (C). An initial review of Plaintiff's Complaint [Doc. No. 1] has been conducted pursuant to 28 U.S.C. § 1915A. For the reasons set forth below, the Court finds Plaintiff's Complaint fails to state any plausible claims upon which relief may be granted. Accordingly, it is recommended that Plaintiff's Complaint be dismissed without prejudice to refiling.
I. Plaintiff's Claims
Plaintiff's claims arise out of his confinement at the Cleveland County Detention Center (CCDC). Plaintiff alleges that on three different occasions he has suffered food poisoning as a result of being served uncooked or undercooked food. See Compl. at p. 1. Plaintiff alleges for over a week he was unable to get out of bed and suffered from diarrhea. Id. He alleges "the nurse" said he would have to "wait it out." Id. Plaintiff also alleges a failure to "properly train trustees /inmates in food preparation and handling." See Compl. at pp. 1-2.
As a separate claim, Plaintiff alleges that on November 17, 2016, while eating dinner, he choked on a piece of plastic found in his food. See Compl. at p. 2. Plaintiff alleges he showed "Mr. Wilson," the officer working at that time. Id. According to Plaintiff, Mr. Wilson told Plaintiff the plastic was from the kitchen and from the bag [his] food c[a]me in." Id.
Plaintiff further alleges a violation of "Federal Trade Laws." Id. Plaintiff bases this claim on allegedly over-priced commissary items.
Plaintiff names as Defendants the following: Aramark Correctional Services, LLC; Sheriff Joseph K. Lester; F. DeWayne Beggs; Cleveland County, Oklahoma; Cleveland County Board of County Commissioners; Bandi Allen, an employee of Aramark Correctional Services; and Does 1-1000. As relief, Plaintiff seeks "unlimited" compensatory and punitive damages.
II. Standard for Dismissal
Pursuant to 28 U.S.C. § 1915A(a), "[t]he court shall review, before docketing, if feasible, or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." The court shall dismiss the complaint if it is frivolous or malicious or fails to state a claim upon which relief may be granted. Id., § 1915A(b)(1).
The court's review of a complaint under § 1915A(b)(1) mirrors that required by Fed. R. Civ. P. 12(b)(6). The court must accept the plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from them, in the light most favorable to the plaintiff. See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). The court "review[s] the complaint for plausibility; that is, to determine whether the complaint includes enough facts to state a claim to relief that is plausible on its face." Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009) (quotations and citation omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A pro se plaintiff's complaint must be broadly construed under this standard. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972). The generous construction to be given the pro se litigant's allegations "does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The court "will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
In addition to these standards, the Tenth Circuit has made clear that "context matters" when determining the plausibility of the allegations of a complaint. Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008). The requirements of Rule 8(a) are particularly important in the context of a § 1983 action involving multiple claims against multiple defendants. Id. at 1249. Thus, the complaint should "make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her." Id. at 1250; see also Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007) (the allegations of the plaintiff's complaint should inform each defendant "what [he or she] did to [the plaintiff]; when the defendant did it; how the defendant's action harmed [the plaintiff]; and, what specific legal right the plaintiff believes the defendant violated")
III. Analysis
Plaintiff does not state facts to demonstrate whether he is being detained at the CCDC as a pretrial detainee or a convicted prisoner. The source of the constitutional protections for pretrial detainees is the Due Process Clause while the protections afforded convicted prisoners derive from the Eighth Amendment. See, e.g., Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998); see also Covalt v. Inmate Servs. Corp., 658 F. App'x 367, 369 (10th Cir. 2016). Regardless of his status, however, the same standard governs his claims challenging the conditions of his confinement. Id.
To state a cognizable claim, Plaintiff must satisfy both an objective component, i.e., that the deprivation at issue was "sufficiently serious" and a subjective component, i.e., that the prison official acted with a "deliberate indifference." Craig, 164 F.3d at 495. A prison official is liable only if he knows of and disregards an excessive risk to inmate health or safety. Id. at 495-96. "[O]nly those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation." Wilson v. Seiter, 501 U.S. 294, 298 (1991) (citation and internal quotation marks omitted). Indeed, prison conditions may be "restrictive and even harsh" without rising to the level of a constitutional violation. Craig, 164 F.3d 495 (citations omitted).
A. Three Incidents of Alleged Food Poisoning
Plaintiff's allegations regarding the three incidents of food poisoning fail to plausibly state a claim for the deprivation of his constitutional rights. Plaintiff alleges that he was served "uncooked meatloaf," an "unidentified meat" and potatoes and beans that were "never cooked all the way." Compl. at p. 1. Plaintiff does not state how long he has been incarcerated at the CCDC. Nor does Plaintiff state whether the incidents occurred in close proximity to one another. Plaintiff states that he had "severe pain all over [his] body" and was unable to get out of bed "except to use the toilet." Id. He also claims he suffered diarrhea for a week. Id.
Plaintiff does not allege any facts to demonstrate he was actually diagnosed with food poisoning. Nor does he allege facts sufficient to demonstrate a causal connection between the food served and the conditions he suffered. Without any dates to support his claims, no inferences can be drawn regarding any such causal connection. Regardless of these pleading deficiencies, Plaintiff's allegations of isolated instances of food poisoning are otherwise insufficient to state a plausible claim for relief. See Ferris v. Jefferson Cty., No. 07-cv-2215-REB-MJW, 2008 WL 5101240 at *5-6 (D. Colo. Nov. 26, 2008) (unpublished op.) (collecting cases holding that isolated and/or unintentional instances of food poisoning do not rise to the level of a constitutional violation). Notably, Plaintiff fails to identify any particular defendant responsible for the alleged food poisoning. Nor do Plaintiff's allegations demonstrate how the food poisoning resulted from the deliberate indifference of any prison official, as opposed to mere negligent conduct. See id. at *6 ("At most, plaintiff's claims of food poisoning are based on negligence, and thus they are not cognizable under § 1983).
Plaintiff states that he sought administrative relief by filing requests to staff and grievances but he never identifies any responsible prison official, state when the incidents occurred, or when he submitted his requests for administrative relief. See Compl. at p. 1.
To the extent Plaintiff bases this claim on an alleged failure to properly train inmates in food preparation or handling, Plaintiff's allegations are too conclusory. Allegations of general deficiencies in training are insufficient to give rise to § 1983 liability. Lopez v. LeMaster, 172 F.3d 756, 760 (10th Cir. 1999). Moreover, "a claim based on an alleged policy or custom of failing to act (such as a failure to train employees) can be successful only if the inaction resulted from the 'deliberate indifference' to the plaintiff's rights, as opposed to mere negligence." Brocks v. Bd. of Cty. Comm'rs of Sedwick Cty., Kansas, 329 F. App'x 200, 202 (10th Cir. 2009) (citation omitted). Plaintiff fails to identify any specific facts to support this claim, show that a deficiency in training actually caused any particular prison official to act with deliberate indifference to his safety, or that the resulting harm Plaintiff suffered was objectively sufficiently serious. Accordingly, this claim should be dismissed for failure to state a claim upon which relief may be granted.
For these same reasons, to the extent Plaintiff alleges a denial of proper medical care related to the food poisoning his claim necessarily fails. He alleges that a nurse told him to "wait it out." He does not identify the nurse, include her as a named defendant, allege that he requested and was denied treatment by any other prison official or that he suffered from any conditions other than abdominal pain and diarrhea. Compare Allen v. Ferrel, No. 11-cv-01424-CMA-MJW, 2013 WL 1222127 at *9 (D. Colo. Feb. 13, 2013) (unpublished op.) (finding plaintiff's flu-like symptoms including vomiting, stomach cramping and diarrhea did not constitute a "serious medical need").
B. Plastic Found in Food
Plaintiff's claim that on one occasion he choked on a piece of plastic found in his food is similarly deficient. Plaintiff does not identify any responsible defendant, allege facts to demonstrate deliberate indifference by any prison official or identify any sufficiently serious harm suffered as a result of this incident. Courts have found similar allegations insufficient to establish the violation of a constitutional right. See, e.g., Green v. Atkinson, 623 F.3d 278, 281 (5th Cir. 2010) ("[F]inding a foreign object in food does not constitute a violation of the constitutional rights of the prisoner affected."); Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir. 1992) (ruling that presence of foreign objects in food was insufficient to prove deliberate indifference); Hamm v. DeKalb Cty., 774 F.2d 1567, 1575 (11th Cir. 1985) ("The fact that [prison] food occasionally contains foreign objects or is sometimes served cold, while unpleasant, does not amount to a constitutional deprivation."); LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993) (same); Ockert v. Beyer, No. 10-3058-SAC, 2010 WL 5067062 at *2 (D. Kan. Dec. 7, 2010) (unpublished op.) (recognizing that an occasional foreign object in food does not give rise to a constitutional violation). Therefore, this claim should be dismissed for failure to state a plausible claim for § 1983 relief.
Plaintiff alleges that he "spit up a piece of plastic" after choking and that "this was a life or death situation" because he "thought he was going to die." Compl. at p. 2. But Plaintiff does not allege he suffered any injury as a result of the choking incident. He states he told Mr. Wilson, the officer on duty, about the incident and that Mr. Wilson conducted an investigation. Plaintiff does not, however, bring any claims against Mr. Wilson or allege that he was responsible for the incident.
C. Violations of Federal Trade Laws
Finally, Plaintiff alleges that commissary items are too expensive and that items are marked up "1,000 % of retail cost of stores in the area." See Compl. at p. 2. As an example, Plaintiff states that ramen noodles are sold individually for $1.00 compared to a retail store which sells "a 12 pack for $1.00." Id. According to Plaintiff, this practice constitutes "price fixing" in violation of "Federal Trade Laws." Id. Plaintiff does not identify any constitutional provision in support of his claim and the Tenth Circuit has held that "[t]here is no constitutional right to purchase food from the canteen" Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir. 2002); see also Griffin v. Smith, No. 13-cv-03015-BNB, 2014 WL 11878139 at *2 (D. Colo. March 19, 2014) (unpublished op.) ("A challenge to the charges or items available at a prison's commissary or canteen do[es] not present a constitutional claim.") aff'd, 572 F. App'x 625, 626 (10th Cir. 2014); McChan v. Corrs. Corp. of America, No. 94-3051-RDR, 1997 WL 104110 at * 6 (D. Kan. Feb. 13, 1997) (unpublished op) ("[Plaintiff's] claim that commissary prices were above costs evinces no constitutional violation."). Additionally, Plaintiff fails to identify any statutory basis for his claim. His allegations, therefore, are too vague to state a plausible claim for relief.
IV. Plaintiff's Motion to Appoint Counsel
Plaintiff has filed a Motion to Appoint Lawyer [Doc. No. 4]. Plaintiff states that he has been "denied access to the State Bar or list of Lawyers" and therefore, he requests that the Court appoint counsel. He further claims he has been denied assistance from a person trained in the law and that his access to courts has been violated. He references another action he has filed and which is currently pending in this Court, Wonsch v. Garner, Case No. CIV-17-77-F as allegedly impacted by his lack of access to the courts.
Plaintiff does not bring a claim for denial of access to the courts in his Complaint. --------
"The decision of whether to appoint counsel in a civil case under § 1983 is left to the discretion of the trial court." Marshall v. Columbia Lea Reg'l Hosp., 345 F.3d 1157, 1181 (10th Cir. 2003); see also Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991); 28 U.S.C. § 1915(e)(1). The factors to be considered include: (1) the merits of the litigant's claim; (2) the nature of the factual issues raised in the claims; (3) the litigant's ability to present the claims; and (4) the complexity of the legal issues raised. Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). While appointment of counsel in § 1983 cases is permissible, it is appropriate only in complex cases in which the prisoner demonstrates a meritorious claim that he lacks the ability to present. Toevs v. Reid, 685 F.3d 903, 916 (10th Cir. 2012).
The Court has carefully considered the applicable factors and the circumstances of Plaintiff's case. Notwithstanding Plaintiff's adequate ability to present his claims, Plaintiff's Complaint fails to state any plausible claim for relief. Moreover, neither the factual nor legal issues presented are complex. Plaintiff's lack of training or knowledge in the law is not, by itself, persuasive because the same could be said about any pro se litigant. See Rucks, 57 F.3d at 979 (reasoning that because appointing an attorney would assist any pro se litigant in presenting the strongest possible case, such an argument was not grounds to require a district court to do so). Accordingly, it is recommended that Plaintiff's request for appointment of counsel be denied.
RECOMMENDATION
It is recommended that the Complaint [Doc. No. 1] be dismissed without prejudice pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state claim upon which § 1983 relief may be granted. It is further recommended that the dismissal count as a "prior occasion" or "strike" pursuant to 28 U.S.C. § 1915(g). See Hafed v. Federal Bureau of Prisons, 635 F.3d 1172, 1177 (10th Cir. 2011). Finally, it is recommended that Plaintiff's Motion to Appoint Counsel [Doc.No.4] be denied and that Plaintiff's Application for Leave to Proceed in Forma Pauperis [Doc. No. 8] and Motion for Sanctions [Doc. No. 9] be denied as moot.
NOTICE OF RIGHT TO OBJECT
Plaintiff is advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by April 13, 2017. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Moore v United States, 950 F.2d 656 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation disposes of all issues referred by the District Judge in this matter.
ENTERED this 23rd day of March, 2017.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE