Opinion
CIVIL ACTION 99-0130-CB-M.
October 24, 2000.
REPORT AND RECOMMENDATION
Plaintiff, who is proceeding pro se, commenced this action while an inmate at the City of Orange Beach Jail (Doc. 3). Plaintiff filed a handwritten complaint and paid the $150.00 filing fee (Docs. 1 2). This action has been referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 72.2(c)(4). It is recommended that this action be dismissed without prejudice, prior to service of process, pursuant to 28 U.S.C. § 1915A(b)(1) because Plaintiff's claims are either frivolous or fail to state a claim upon which relief may be granted.
The § 1983 complaint before the Court (Doc. 10) is the result of the Court ordering Plaintiff replead her two prior complaints. See Docs. 1 8.
The sole Defendant is the City of Orange Beach, Alabama. However, Plaintiff's claims are directed to the Orange Beach Municipal Jail ("jail") (Doc. 10, p. 5). Plaintiff complains about a variety of conditions of confinement to which she was subjected at the jail, which are described below. The relief that Plaintiff seeks in this action is damages for the "extreme pain, mental anguish, and anxiety [she] suffered while incarcerated [at the jail]." (Doc. 10, at 7-8).
Plaintiff indicates that the dates of the alleged violations were from January 11, 1997, to December 18, 1997, and from February 18, 1998, to March 18, 1999. Plaintiff states that she filed this action while she was at the jail, but she was then transferred to Baldwin County Correctional Facility in Bay Minette, Alabama (Doc. 3).
This is Plaintiff's response to the form's question: "Statebriefly exactly what you want the Court to do for you if you win (make no legal argument, cite no cases or statutes) [.]"
While Plaintiff was incarcerated at the jail, Plaintiff alleges that she was fed child-size Banquet dinners with a bad-tasting punch for lunch and for dinner, and that for breakfast she could have either a gristly sausage biscuit or a small Swanson frozen breakfast (which she chose). Plaintiff maintains that she was not given fruit or milk, and was rarely served vegetables, which were not fresh. Plaintiff avers that she did not receive a well-balanced diet and that she received only 700 calories a day. Plaintiff contends that she broke a bone shortly after her release which was due to her bones being weakened by the deprivation of calcium and that she began having digestive problems in jail due to her jejune diet and continues to have them. Plaintiff asserts that the jail should be required to serve well-balanced meals if they are housing inmates for an extended period of time and that she wants damages for being deprived an adequate diet while incarcerated.
Plaintiff alleges that the jail policy only lets inmates shower once every 72 hours, which she contends is unsanitary and inhumane. Plaintiff further maintains that inmates could not keep toothbrushes, soap, and pens in their cells and the jailors were too lazy to open the cells to let them brush their teeth and shower except once every 72 hours. Plaintiff states that inmates had to have their own clothes, but could only have three sets of clothes, and the clothes had to be laundered at the jail which caused them to be ruined because trustees did not know how to properly launder clothes. Plaintiff asserts that the staff stole personal belongings out of her cell. Plaintiff alleges that the limited telephone access prevented her from finding a competent attorney, thereby denying her access to the courts. Plaintiff contends that because the jail does not have a law library, her progress in the courts was hampered. Plaintiff avers that keeping an inmate in a holding cell the entire time of incarceration is a violation of her civil rights, that exercise time is limited, that there is no separate cell for intoxicated individuals, and that this jail is not an appropriate place for long-term prisoners.
II. Standards of Review Under 28 U.S.C. § 1915A(b)(1) .
The Court is required to review a complaint filed by a prisoner against a government official and to "dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted[.]" 28 U.S.C. § 1915A(b)(1). This section applies regardless of whether the filing fee has been paid or the prisoner is proceeding in forma pauperis. Ruiz v. United States, 160 F.3d 273, 274 (5th Cir. 1998).
"[A] complaint . . . is frivolous where it lacks an arguable basis in law or fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). A claim is frivolous as a matter of law where, inter alia, the defendants are immune from suit, id. at 327, 109 S.Ct. at 1833, the claim seeks to enforce a right which clearly does not exist, id., or there is an affirmative defense that would defeat the claim, such as the statute of limitations, Clark v. Georgia Pardons Paroles Bd., 915 F.2d 636, 640 n. 2 (11th Cir. 1990). Judges are accorded "not only the authority to dismiss [as frivolous] a claim based on indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833. Moreover, a complaint may be dismissed for failure to state a claim upon which relief may be granted "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (citingConley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)).
III. Discussion.
A. Due Process Claim.
Plaintiff alleges that personal belongings were stolen from her cell and that her clothes were ruined when they were laundered at the jail. In Hudson v. Palmer, 468 U.S. 517, 532-33, 104 S.Ct. 3194, 3203-04, 82 L.Ed.2d 393 (1984), the United States Supreme Court held that the deprivation of property by persons acting under color of state law does not constitute a deprivation without due process of law when a predeprivation hearing is impractical and there is available an adequate postdeprivation remedy at the time of the deprivation. The Hudson court reasoned that impracticality occurs when the loss of property occurs as a result of a "random, unauthorized act by a state employee," id. at 532, 104 S.Ct. at 3203 (quoting Parratt v. Taylor, 451 U.S. 527, 541, 101 S.Ct. 1908, 1916, 68 L.Ed.2d 420 (1981)), as it is impossible for the State to know beforehand of the deprivation, negligent or intentional, and to provide a predeprivation hearing prior to the loss, id. at 533, 104 S.Ct. at 3203. Some postdeprivation remedies that have satisfied due process are administrative procedures, Parratt, 451 U.S. at 543-44, 101 S.Ct. at 1917, or ordinary tort litigation procedures, Hudson, 468 U.S. at 535-36, 104 S.Ct. at 3204.
A predeprivation hearing would have been impractical when Plaintiff's belongings were intentionally taken or when her clothes were intentionally or negligently ruined as these deprivations occurred not as a result of some established procedure. Plaintiff had available to her at the time of the deprivations a postdeprivation remedy that would have adequately compensated for her loss. That is, in Alabama, an employee or other citizen may be held personally liable to a prisoner in an ordinary tort action for property loss claims. Milton v. Espey, 356 So.2d 1201 (Ala. 1978); Ala. Code § 6-5-262 (1993).
It is not necessary that the postdeprivation remedy be available to Plaintiff at the present time to determine whether the deprivation was with or without due process. See Parratt, 451 U.S. at 543-44, 101 S.Ct. at 1917. It is only required that an adequate postdeprivation remedy be available to her when the deprivation occurred. Id. Because a postdeprivation remedy was available to Plaintiff at the time of her loss, the deprivation of Plaintiff's property does not violate due process. Accordingly, Plaintiff's due process claim is frivolous.
B. Access to Courts Claim.
Plaintiff claims that she was denied access to the courts when she was prevented from finding competent counsel due to limited telephone access and when her progress in the courts was hampered due to the jail not having a law library. An inmate does not have free-standing right of access to a law library or to legal assistance. Lewis v. Casey, 518 U.S. 343, 350, 116 S.Ct. 2174, 2179, 135 L.Ed.2d 606 (1996). Law libraries and legal assistance are not ends in themselves, but are means by which officials ensure that a prisoner is provided a "reasonably adequate opportunity" to present his claims to a court. Lewis, 518 U.S. at 351, 116 S.Ct. at 2180.
A violation of the right of access to the courts requires that a prisoner establish that he has been deprived of "meaningful access to the courts." Id. (quoting Bounds v. Smith, 430 U.S. 817, 823, 97 S.Ct. 1491, 1495, 52 L.Ed.2d 72 (1977)). To do so, a prisoner must establish that he has suffered an actual injury.Id. at 349-51, 116 S.Ct. at 2179-80. If a prisoner is unable to establish an actual injury, the prisoner lacks standing to bring a claim for the denial of access to the courts. Id. Moreover, a prisoner's claim in the underlying action must be demonstrated to be a non-frivolous claim and one that is related to the prisoner's direct appeal of his conviction, to his habeas petition, or to his civil rights action vindicating a basic constitutional right. Lewis, 518 U.S. at 354, 116 S.Ct. at 2181-82. "Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration." Id. at 355, 116 S.Ct. at 2182.
Plaintiff's allegations are nebulous and do not establish that she suffered a specific injury. Her allegations give no indication. that the underlying action concerned a direct appeal of her conviction, a habeas petition, or a civil rights action concerning her conditions of confinement and that the action was not frivolous. Accordingly, the undersigned finds that Plaintiff has failed to state a claim for the denial of access to the courts.
The actions of which this Court is aware are frivolous. This Court's docket reflects that on January 23, 1998, Plaintiff filed a § 1983 complaint against her attorney, Civil Action No. 98-0075-AH-S, which was dismissed as frivolous. The Eleventh Circuit Court of Appeals affirmed the decision and found the appeal to be frivolous, and the United States Supreme Court denied the writ of certiorari on December 8, 1999. Plaintiff also filed on February 2, 1999, a habeas petition, Civil Action No. 99-0129-RV-C, which was dismissed on May 18, 1999, for Petitioner's failure to exhaust her state court remedies.
C. Applicability of 42 U.S.C. § 1997e(e) to Plaintiff's Remaining Claims.
Plaintiff specifically identified the relief that she seeks in this action as damages "for the extreme pain, mental anguish, and anxiety [she] suffered while incarcerated [at the jail.]" When Congress enacted the Prison Litigation Reform Act of 1996 ("PLRA"), it included in the PLRA 42 U.S.C. § 1997e(e), which provides: "No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." This section was included in an attempt to curb the flood of prisoner actions in federal court.Harris v. Garner, 216 F.3d 970, 971 (11th Cir. 2000), pet. for cert. filed, No. 00-484 (Sept. 25, 2000).
Section 1997e(e) bars only a damages recovery for a mental or emotional injury where there is no connected physical injury.Harris v. Garner, 190 F.3d 1279, 1287-88 (11th Cir.), modified in part by Harris v. Garner, 216 F.3d 970 (11th Cir. 2000), pet. for cert. filed, No. 00-484 (Sept. 25, 2000). A physical injury that is associated with a mental or emotional injury must be more thande minimis in order to avoid the application of § 1997e(e).Harris, 190 F.3d at 1286 ("We therefore join the Fifth Circuit in fusing the physical injury analysis under section 1997e(e) with the framework set out by the Supreme Court in Hudson for analyzing claims brought under the Eighth Amendment for cruel and unusual punishment, and hold that in order to satisfy section 1997e(e) the physical injury must be more than de minimis, but need not be significant."). Otherwise, the essential purpose and vitality of Congress' scheme would be sapped. Id. at 1287.
Plaintiff is, therefore, required to establish that she suffered a physical injury that is more than de minimis which is connected to her claims for emotional and mental distress. Plaintiff's complaint appears to be chiefly concerned with her claims for emotional and mental distress caused by the conditions of the jail during her incarceration there. Plaintiff, however, does allege that she broke a bone, which she has not identified, after her release from jail which she claims is due to the deprivation of milk during her incarceration and that she has digestion problems, now and while she was incarcerated, due to her jejune diet at the jail. These allegations of physical injury are somewhat vague and some occurred after she left the jail. However, Plaintiff's other allegations regarding showering, brushing her teeth, being unable to keep some items in her cell, being given only limited exercise time, being held in the holding cell during her incarceration, being housed with intoxicated individuals, and being incarcerated in jail that is not designed to hold prisoners for a long duration are claims to which the undersigned finds no physical injury is ascribed by Plaintiff.
Plaintiff's allegations of physical injury are not well connected to Plaintiff's conditions of confinement and thus to the alleged mental and emotional injuries. There may be other proximate causes for these alleged physical injuries or there may also be pre-existing conditions. Nevertheless, the undersigned finds that these alleged physical injuries do not present an injury that is greater than de minimis. Siglar v. Hightower, 112 F.3d 191, 194 (5th Cir. 1997) (finding a sore, bruised ear lasting for three days not a sufficient physical injury under § 1997e(e) to support recovery for emotional or mental suffering); Sarro v. Essex County Correctional Facility, 84 F. Supp.2d 175, 177 (D. Mass. 2000) (finding that difficult breathing which required the use of an inhaler was found not to satisfy the physical injury requirement); McGrath v. Johnson, 67 F. Supp.2d 499, 508 (E.D. Pa. 1999) (finding that inflammation of skin caused by a condition that erupts during periods of mental and emotional pain was not sufficient to satisfy § 1997e(e)'s injury requirement); Cain v. Commonwealth of Va., 982 F. Supp. 1132, 1135 n. 3 (E.D. Va. 1997) (finding that unbearable headaches, vision loss, numbness in arms and legs, joint pain, stomach cramps, lower back pain, and blackouts were not a sufficient physical injury to recover under § 1997e(e) for mental injury); Zehner v. Trigg, 952 F. Supp. 1318, 1321-23 (S.D. Ind. 1997) (holding that mere exposure to friable asbestos in the prison kitchen is not a physical injury that would support recovery for the mental anguish of developing cancer or asbestosis and its related diseases), aff'd, 133 F.3d 459 (7th Cir. 1997); Canon v. Burkybile, No. 99 C-4623, 2000 WL 1409852 (N.D. Ill. July 25, 2000) (finding that headaches, insomnia, stress, and stomach anxiety did not meet the physical injury requirement of § 1997e(e)).
Accordingly, the undersigned finds that Plaintiff has not alleged a physical injury that is sufficiently connected to her conditions of confinement at the jail and that is greater than de minimis. Plaintiff, therefore, has not satisfied the physical injury element of § 1997e(e) and is not allowed to recover on her claims for mental and emotional injuries in this action. As a consequence, Plaintiff's remaining claims for mental anguish, anxiety, and pain are due to be dismissed without prejudice as frivolous as a matter of law. Harris, 216 F.3d at 980 (holding that the dismissal of a claim under § 1997e(e) should be without prejudice).
V. Conclusion.
Based upon the foregoing reasons, it is recommended that this action be dismissed without prejudice, prior to service of process, pursuant to 28 U.S.C. § 1915A(b)(1) because Plaintiff's claims are either frivolous or fail to state a claim upon which relief may be granted.
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION AND FINDINGS CONCERNING NEED FOR TRANSCRIPT
1. Objection . Any party who objects to this recommendation or anything in it must, within ten days of the date of service of this document, file specific written objections with the clerk of court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) (en banc). The procedure for challenging the findings and recommendations of the magistrate judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:
A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a "Statement of Objection to Magistrate Judge's Recommendation" within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection.
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the, district judge's order or judgment can be appealed.
2. Transcript (applicable where proceedings tape recorded) . Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this action are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.