Opinion
Civil Action 2:11-cv-00114.
May 31, 2011
ORDER AND REPORT AND RECOMMENDATION
I. INTRODUCTION
This matter is before the Court pursuant to an initial screen of Plaintiff's Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. Plaintiff specifically brings claims against Sheriff George Lavendar Jr. and other Ross County (Ohio) employees for alleged constitutional and state law violations. Specifically, Plaintiff brings claims under 42 U.S.C. § 1983, maintaining that Defendants were deliberately indifferent to his serious medical needs and that Defendant Dustin Haybern subjected him to excessive force. Additionally, Plaintiff raises a variety of challenges to the conditions of his confinement. At this time, the Court will allow Plaintiff to proceed on his deliberate medical indifference and excessive force claims. The Court will also allow Plaintiff to proceed on his condition of confinement claims relating to medical treatment, recreation, environmental temperatures, inadequate clothing, cleanliness of facilities, and hygiene. Furthermore, Plaintiff may proceed on his claim that the jail's administration of booking fees violates his right to due process. Finally, the Court will allow Plaintiff to proceed on his First Amendment free exercise of religion claim. It is RECOMMENDED that the Court DISMISS the remainder of Plaintiff's claims for failure to state a claim. Additionally at this time, the Court DENIES Plaintiff's Motion to Appoint Counsel without prejudice.
II. STANDARD
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to "lower judicial access barriers to the indigent." Denton v. Hernandez, 504 U.S. 25, 31 (1992). In doing so, however, "Congress recognized that 'a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.'" Id. at 31 (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e) as part of the statute, which provides in pertinent part:
Formerly 28 U.S.C. § 1915(d).
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that —
* * *
(B) the action or appeal —
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or. . . .28 U.S.C. § 1915(e)(2)(B)(i) (ii); Denton, 504 U.S. at 31; see also 28 U.S.C. § 1915A (requiring the Court to screen a prisoner's complaint "as soon as practicable" and dismiss any portion of a the complaint if it is frivolous, malicious, or fails to state a claim). Thus, § 1915(e) and § 1915A require sua sponte dismissal of an action upon the Court's determination that the action is frivolous or malicious, or upon determination that the action fails to state a claim upon which relief may be granted.
To properly state a claim upon which relief may be granted, a plaintiff must satisfy the basic federal pleading requirements set forth in Fed.R.Civ.P. 8(a). See also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure 12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Although this pleading standard does not require "'detailed factual allegations,' . . . [a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action,'" is insufficient. Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Furthermore, a complaint will not "suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557). Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, "a complaint must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In considering whether this facial plausibility standard is met, a Court must construe the complaint in the light most favorable to the non-moving party, accept all factual allegations as true, and make reasonable inferences in favor of the non-moving party. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citations omitted). Additionally, the Court must construe pro se complaints liberally. Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 362 (6th Cir. 2010). The Court is not required, however, to accept as true mere legal conclusions unsupported by factual allegations. Iqbal, 129 S.Ct. at 1949.
III. ANALYSIS
A. Medical Indifference and Excessive Force Claims
In the first section of his Complaint, Plaintiff brings claims for deliberate indifference to his serious medical needs and excessive force in violation of Eighth Amendment to the United States Constitution. (Compl. 5B-5F, ECF No. 4.) Plaintiff specifically asserts claims against the bulk of Defendants in their official capacity, maintaining that they were indifferent to addressing his medical needs as it relates to his epileptic condition. Additionally, Plaintiff brings an excessive force claim against Defendant Hayburn in his individual and official capacity, alleging that Defendant Hayburn physically assaulted Plaintiff. At this time, the Court will allow Plaintiff to proceed on both his deliberate indifference of serious medical needs and excessive force claims.B. Conditions of Confinement
1. Applicable Law
In the second portion of his Complaint, Plaintiff brings a series of challenges to the conditions of his imprisonment. Plaintiff contentions are wide ranging, covering a variety of topics from the amount of recreation time he receives to matters of personal hygiene. In the introduction to his Complaint, Plaintiff maintains that he is bringing his conditions of confinement claims under Ohio Revised Code § 341.01. (Compl. 5A, ECF No. 4.) Plaintiff appears to claim that Sheriff Lavender is liable to him for allowing jail conditions to fall below the minimum standards for jails in Ohio as set forth by the Ohio Department of Rehabilitation and Correction ("ODRC").
These standards are detailed in the Ohio Administrative Code.
Under Ohio law:
The sheriff shall have charge of the county jail and all persons confined therein. He shall keep such persons safely, attend to the jail, and govern and regulate the jail according to the minimum standards for jails in Ohio promulgated by the department of rehabilitation and correction.
Ohio Rev. Code § 341.01. Contrary to Plaintiff's implication, however, Ohio case law suggests that this statute does not create a private cause of action for prisoners against the sheriff for failure to meet the minimum standards for jails promulgated by the ODRC. See Walker v. Leis, C-940258, 1995 WL 229064, at *3 (Ohio Ct. App. Apr. 19, 1995) ("We agree with the courts that have concluded that [R.C. § 341.01] is no more than a declaration of the common law and does not create liability, but instead establishes responsibility and standards relative to the maintenance of jails."); Bell v. Franklin Cnty. Comm'rs, Nos. 92AP-872, 92AP-992, 1992 WL 369615, at *2 (Ohio Ct. App. Dec. 10, 1992) ("The statutes cited by plaintiff do not expressly impose liability upon the county but, instead, merely establish responsibility and standards regarding the maintenance of jails and are silent on the issue of liability."); Justice v. Rose, 102 Ohio App. 482 (Ohio Ct. App. 1957) ("The liability of the sheriff, if any, in the case must be predicated upon negligence and does not arise from [R.C. 341.01].")
Rather, at least for the purposes of liability, Ohio Courts have interpreted Ohio Rev. Code § 341.01 as merely codifying the duty of the sheriff to exercise reasonable care to assure the safety of prisoners within their jail. See Saunders v. McFaul, 71 Ohio App. 3d 46, 50 (Ohio Ct. App. 1990) ("Officers and jailers have a duty to exercise reasonable care for the safety of prisoners committed to their custody, and to guard against dangers which were known or which should have been known to the jailers.") (citing Jenkins v. Krieger, 67 Ohio St.2d 314 (Ohio 1981); but see Ohio Rev. Code 2744.03(B)(6) (stating that an employee of a political subdivision is immune from liability for acts inside the scope of employment unless the acts or omissions are committed with malicious purpose, bad faith, or in a wanton or reckless matter). Furthermore, the Supreme Court of Ohio has indicated that prison regulations, "are primarily designed to guide correctional officials in prison administration rather than to confer rights on inmates." State ex rel. Larkins v. Wilkinson, 79 Ohio St. 3d 477, 479 (Ohio 1997).
The actual text of Plaintiff's conditions of confinement claims, however, suggests that he is attempting to bring constitutional claims, challenging that the conditions of his confinement violate the constitution. ( See Compl. 5G-6, ECF No. 4.) As the Supreme Court has noted, "[i]t is undisputed that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Helling v. McKinney, 509 U.S. 25, 31 (1993). Consequently, prison officials "must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotations omitted). Furthermore, the United States Court of Appeals for the Sixth Circuit has specifically provided with respect to prisoner's claims regarding the conditions of his confinement:
Within his conditions of confinement claims, Plaintiff frequently cites the United States Constitution. (Compl. 5G-6, ECF no. 4.)
An Eighth Amendment conditions-of-confinement claim has two elements. "First, the deprivation alleged must be, objectively, sufficiently serious; a prison official's act or omission must result in the denial of the minimal civilized measure of life's necessities." [Farmer, 511 U.S. at 834] (internal quotation marks and citations omitted). Second, the prison official's "state of mind [must be] one of 'deliberate indifference' to inmate health or safety." Id. (quoting Wilson v. Seiter, 501 U.S. 294, 302-03, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)).Spencer v. Bouchard, 449 F.3d 721, 728 (6th Cir. 2006). Finally, to state a viable conditions of confinement claim "extreme deprivations are required . . . [b]ecause routine discomfort is 'part of the penalty that criminal offenders pay for their offenses against society,'. . . ." Hudson v. McMillian, 503 U.S. 1, 9 (1992) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).
For the purposes of this initial screen, the undersigned will examine Plaintiff's claims as constitutional claims. The undersigned has also considered, in the alternative, Plaintiff's claims as state law negligence claims for violation of Sheriff Lavender's duty of care concerning the health and safety of his prisoners.
Although Plaintiff's claims generally relate to his conditions of confinement, Plaintiff bases several of his claims on other constitutional rights.
II. Application
At this juncture, and for purposes of the initial screen, it is RECOMMENDED that Plaintiff be allowed to proceed on his conditions of confinement claims relating to medical treatment, recreation, environmental temperatures, inadequate clothing, cleanliness of the facilities, and hygiene. It is also RECOMMENDED that Plaintiff be permitted to proceed on his due process challenge to the administration of booking fees. Finally, it is RECOMMENDED that Plaintiff be allowed to proceed on his free exercise of religion claim brought under the First Amendment.
Of course Defendants are free to move for dismissal after service if they contend that Plaintiff's Complaint fails to state a claim for relief.
The remainder of Plaintiff's claims related to his conditions of confinement fail to state a claim. First, Plaintiff attempts to state a constitutional claim for denial to access to courts. Plaintiff maintains that he is being denied access to the courts because the jail does not contain a law library or provide access to legal materials. (Compl. 5G, ECF No. 4.) Prisoners certainly "enjoy a constitutional right of access to the courts. . . ." Whiteside v. Parrish, 387 F. App'x 608, 613 (6th Cir. 2010) (citing Bounds v. Smith, 430 U.S. 817, 821, (1977)). But this right does not guarantee access to a prison law library. See Lewis v. Casey, 518 U.S. 343, 350-51 (1996). Rather, the right of access "can be satisfied either by providing an inmate with legal materials adequate to allow the inmate to pursue an attack on his conviction or sentence, or by providing that inmate with legal assistance in the form of an attorney or other person trained in the law." Dunlap v. Strickland, No. 2:09-cv-100, 2009 WL 2835188, at *2 (S.D. Ohio Aug. 31, 2009) (citing Holt v. Pitts, 702 F.2d 639, 640 (6th Cir. 1983)); see also Knop v. Johnson, 977 F.2d 996, 1003 n. 5 (6th Cir. 1992) ("Our own court, like other courts of appeals, has always understood the Supreme Court to have meant what it said in holding that prisoners must be provided adequate law libraries 'or' adequate assistance from persons with legal training.") In this case, Plaintiff does not assert that Defendants are failing to provide him access to legal assistance. Rather, at least for the purposes of his Complaint in this case, it appears that Plaintiff is receiving at least some assistance. Plaintiff, therefore, has failed to state a claim on access to court grounds.
The Court has also considered whether these remaining claims constitute viable state law claims based on violation of the sheriff's duty codified at Ohio Rev. Code § 341.01. Plaintiff, however, has not pled sufficient facts to state viable claims on these grounds.
Plaintiff also fails to state a claim for relief concerning the delivery of his mail. For the purposes of this claim, he maintains that the jail officials are not delivering prisoner mail on Saturdays, despite the fact that mail arrives on Saturdays from the Post Office. (Compl. 5G-H, ECF No. 4.) The undersigned finds no authority indicating that prisoners are constitutionally entitled to delivery of mail six days per week, as opposed to five day per week deliver as Plaintiff alleges is the practice. Furthermore, the fact that such a practice might cause mail to be occasionally lost does not rise to the level of a constitutional violation. Cf. Rinehart v. Beck, No. 5:09-CT-3019, 2011 WL 52360, at *5 (E.D.N.C. Jan. 5, 2011) ("Isolated incidents of mail mishandling do not rise to the level of a constitutional violation."); Pearson v. Simms, 345 F. Supp. 2d 515, 519-20 (D. Md. 2003) ("[O]ccasional incidents of delay or non-delivery of mail do not rise to a constitutional level.").
Plaintiff asserts a further claim regarding punishment in the jail. Specifically, Plaintiff contends that the guards are allowed to punish prisoners without proper notice and process. (Compl. 5H-I, ECF No. 4.) As the United States Court of Appeals for the Sixth Circuit has stated, "[i]n order to prevail on a procedural-due-process claim, an inmate must first demonstrate that he was deprived of 'life, liberty, or property' by government action." Heard v. Caruso, 351 F. App'x 1, 7 (6th Cir. 2009) (citing Wilkinson v. Austin, 545 U.S. 209, 221 (2005)). Furthermore, "[w]hat little liberty interest an inmate retains is generally limited to 'freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'" Joseph v. Curtin, No. 09-1616, 2010 WL 4903547, at *2 (6th Cir. Nov. 24, 2010) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). Here, Plaintiff has failed to provide sufficient factual detail for the Court to reasonably infer that he is entitled to relief in connection with disciplinary punishment. In particular, Plaintiff has not provided any facts regarding the types of punishments that the guards impose. Accordingly, Plaintiff has not provided any facts to indicate that he will be able to demonstrate a deprivation of a protected interest.
Next, Plaintiff attempts to raise a condition of confinement claim concerning the meals he is provided. Plaintiff makes bare assertions that the meals are inadequate to the point of starvation and that he "stays hungry." (Compl. 5I, ECF No. 4.) To support his claim, Plaintiff sets forth facts indicating that he is provided a 2000 calorie diet, most of his meals do not contain meat or fresh fruit and vegetables, and he is forced to drink "colored water." (Id.) The undersigned concludes that these facts are insufficient to state a conditions of confinement claim on this grounds. Although the jail is required to provide Plaintiff with adequate food, the facts Plaintiff provides do not rise to the objective level of seriousness required for a constitutional violation. See Tarpley v. Jefferson Cnty. Comm'rs, No. 2:09-cv-00199, 2011 WL 463216, at *4 (S.D. Ohio Jan. 7, 2011) ("[The prisoner] also testified that he was hungry because of the small portions of meals. These allegations do not rise to the level of constitutional violations."); Gawloski v. Dallman, 803 F. Supp. 103, 111-12 (S.D. Ohio 1992) ("Defendants' alleged failure to provide plaintiff with hot meals did not constitute cruel and unusual punishment absent some indication that plaintiff received less than one meal per day or that the meals lacked nutritional value or were in some way physically harmful to plaintiff's health.").
To the extent that Plaintiff maintains that Defendants have failed to place him on a high protein diet, as his doctors have instructed, the undersigned finds that this claim is captured as part of his claims for deliberate indifference to his serious medical needs.
Plaintiff further claims that Defendants are subjecting him to time deprivation as a form of mental torture. (Compl. 5I., ECF No. 4.) Specifically, Plaintiff maintains that there is no clock in his jailing pod and he is unable to see the time. (Id.) The undersigned finds that the failure of jail employees to place a clock within Plaintiff's view is neither "time deprivation" nor a violation that rises to the minimal civilized level of life's necessities. See Hoffmann v. Ferguson, 2010 WL 3853065, at *7 (W.D. Ark. Sept. 7, 2010) (suggesting that "complaints about [a] lack of clocks" did not demonstrate deprivation of an "identifiable human need") (citing Whitnack v. Douglas County, 16 F.3d 954, 957 (8th Cir. 1994)). Rather, Plaintiff's allegations in this regard are more in line with the routine discomfort that is to be expected in prison confinement. Furthermore, to the extent Plaintiff seeks damages for mental injury, he is not entitled to such damages pursuant to 42 U.S.C. § 1997e(e), because he has not pled any physical injury related to his time deprivation claim. 42 U.S.C. § 1997e(e) ("No Federal civil action may be brought by a prisoner confined in a jail . . . for mental or emotional injury suffered while in custody without a prior showing of physical injury."); see also Jackson v. Herrington, 393 F. App'x 348, 354 (6th Cir. 2010) ("Although [the plaintiff] repeatedly asserts that his larger 'action' contains allegations of a dental injury, and implies that this meets the injury requirement, our precedent demonstrates that, absent injury related to the strip search, his Eighth Amendment claim is not cognizable under § 1997e(e).").
Plaintiff also purports to state a claim based on alleged defects in the jail grievance procedures. As this Court has recognized, however, "a prison inmate does not have an inherent constitutional right to an effective prison grievance procedure." Israfil v. Parks, No. 2:10-cv-132, 2010 WL 4642978, at *1 (S.D. Ohio Aug. 18, 2010) (citing Young v. Gundy, 30 F. App'x 568, 569-70 (6th Cir. 2002). Furthermore, Ohio Court have held that the Ohio Administrative Code sections outlining prison grievance procedures do not confer a legal right on inmates. State ex rel. Wickensimer v. Bartleson, No. L-09-1049, 2009 WL 5174167, at *3 (Ohio Ct. App. Dec. 28, 2009). Accordingly, the undersigned concludes that Plaintiff has failed to state a claim for relief on these grounds.
Finally, the undersigned concludes that Plaintiff's final two conditions of confinement claims fail to state claims. It appears that Plaintiff is attempting to state a conditions of confinement claim against Defendants for failure to protect because he and other convicted prisoners are mixed with pre-trial detainees. To establish a constitutional violation for failure to protect "[t]he inmate must show that 'he is incarcerated under conditions posing a substantial risk of serious harm.'" Bishop v. Hackel, 636 F.3d 757, 766 (6th Cir. 2011) (quoting Farmer v. Brennan, 511 U.S. 825, 844 (1994)). Here, Plaintiff offers only the brief conclusory statement that prisoners are in danger because they are housed with pre-trial detainees. (Compl. 6, ECF No. 4.) Plaintiff offers no detail to support why these circumstances create a substantial risk of harm. Under these circumstances, Plaintiff has failed to state a claim. Plaintiff also purports to state a cause of action based on the fact that Defendants apparently have the jail floors painted, making them slippery. The undersigned finds no grounds to conclude that such facts rise to the level of a constitutional violation, nor has Plaintiff provided specific facts to suggest that Defendants are violating their duty of care.
IV. CONCLUSION
For the above reasons, pursuant to the Court's initial screen, it is hereby ORDERED that Plaintiff may proceed on his deliberate indifference and excessive force claims; his condition of confinement claims relating to medical treatment, recreation, environmental temperatures, inadequate clothing, cleanliness of facilities, and hygiene; his due process claim relating to the administration of booking fees; and his free exercise of religion claim under the First Amendment. It is RECOMMENDED that the Court DISMISS the remainder of Plaintiff's claims.
The United States Marshal is DIRECTED to serve by certified mail upon Defendants a summons, a copy of the Complaint, and a copy of this Order.
Each Defendant is ORDERED to answer or otherwise respond to the Complaint within 45 days after being served with a copy of the Complaint and summons.
Finally, Plaintiff's Motion to Appoint Counsel (ECF No. 2) is DENIED WITHOUT PREJUDICE to refiling following the disposition of dispositive motions, if any. A plaintiff does not have a constitutional right to counsel. Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993) (citation omitted). Although the Court has the statutory authority to appoint counsel in civil cases under 28 U.S.C. § 1915(e), the exercise of this authority is limited to extraordinary situations. Id. at 606. The Court has evaluated whether such exceptional circumstances exist in this case, and has determined that the appointment of counsel is not warranted at this juncture.
V. NOTICE
If any party seeks review by the District Judge of this Report and Recommendation, that party may, within fourteen (14) days, file and serve on all parties objections to the Report and Recommendation, specifically designating this Report and Recommendation, and the part in question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Response to objections must be filed within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b).
The parties are specifically advised that the failure to object to the Report and Recommendation will result in a waiver of the right to de novo review by the District Judge and waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat'l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that "failure to object to the magistrate judge's recommendations constituted a waiver of [the defendant's] ability to appeal the district court's ruling"); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that defendant waived appeal of district court's denial of pretrial motion by failing to timely object to magistrate judge's report and recommendation). Even when timely objections are filed, appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994 (6th Cir. 2007) ("[A] general objection to a magistrate judge's report, which fails to specify the issues of contention, does not suffice to preserve an issue for appeal. . . .") (citation omitted)).