Opinion
Civil No. 3:97cv77
August 4, 2000.
REPORT AND RECOMMENDATION
Plaintiff Dale J. Burke ("Burke") commenced this action under 42 U.S.C. § 1983 on June 19, 1997 while a pretrial detainee at the Cass County Correctional Center ("CCCC"). Before the court is defendants' Motion for Summary Judgment (Doc. #38) and Burke's objection thereto. For the following reasons the undersigned recommends that defendants' Motion for Summary Judgment be in all things GRANTED and plaintiff's complaint and all amendments be dismissed, with prejudice. In addition, plaintiff was found guilty of the charges for which he was being detained and is presently incarcerated at the North Dakota State Penitentiary. Accordingly, the undersigned recommends Burke's claims for declaratory and injunctive relief be DENIED as MOOT.
Brief Factual and Procedural Background
On or about May 2, 1997 Burke was arrested on charges of murder and arson. He was housed at the CCCC as a pretrial detainee pending trial. He was found guilty of the charges and sentenced to the North Dakota State Penitentiary, where he remains incarcerated. This action arises from his complaints while a pretrial detainee. In particular, Burke filed a complaint on June 19, 1997 consisting of eight alleged violations of his constitutional rights. He moved to amend the complaint on two occasions, September 4, 1997 and September 23, 1997, to allege an additional 18 constitutional rights violations. The court has reviewed all of the allegations and the pleadings in this action and finds that the defendants are entitled to summary judgment as to all of the claims asserted by Burke.
Conditions of Confinement
Most of Burke's allegations of constitutional rights violations pose a challenge to the conditions of his confinement while detained at CCCC. Count 2 of the complaint contends that the bedding and wearing apparel are only washed weekly; in Count 3 of the initial complaint, Count 2 of the amended complaint and Count 9 of the second amended complaint Burke complains that the food is cold and stale, there is improper food handling and the diet is inadequate; Count 7 of the complaint asserts that mail is not posted daily; Count 1 of the amended complaint alleges that no standards of cleanliness are enforced; Count 3 of the amended complaint asserts the sinks do not drain properly and the toilets back up; Count 4 of the amended complaint alleges the air vents are dirty and the facility contains asbestos; Count 6 of the amended complaint alleges the security system in the facility is deficient; Count 1 of plaintiff's second amended complaint alleges the telephone costs are excessive and some numbers are blocked; Count 2 of the second amended complaint complains about the lack of access to an AM/FM radio; Count 6 of the second amended complaint asserts the facility lacks adequate heat; Count 7 of the second amended complaint complains of the existence of lead paint in the facility and that trash receptacles are sometimes left open.
It is well settled that a detainee may be detained to ensure his appearance at trial and may be subjected to restrictions and conditions so long as those conditions are not tantamount to punishment for the crime charged, or otherwise violate the Constitution. Bell v. Wolfish, 441 U.S. 520, 539 (1979). See also Ferguson v. Cape Girardeau County, 88 F.3d 647, 650 (8th Cir. 1996) ("Conditions of pretrial confinement are impermissible if they constitute punishment as determined by the due process standards of the Fifth and Fourteenth Amendments."). The deliberate indifference standard of the Eighth Amendment applies when evaluating claims under the Due Process Clause, requiring an inmate to show that he/she was deprived of the "minimal civilized measure of life's necessities" in order to prevail. Whitnack v. Douglas County, 16 F.3d 954, 957(8th Cir. 1994). Plaintiff has failed to show that he was deprived of a "single, identifiable human need such as food, warmth, or exercise" for a significant period of time, id., or that the correctional officers were "deliberately indifferent to the risk of harm posed by the [condition]", Smith v. Copeland, 87 F.3d 265, 268 (8th Cir. 1996). Burke makes no specific allegations of harm or injury or deprivation of a basic human need and has therefore failed to state a claim for relief under § 1983.
Count 1 of the complaint asserts that CCCC's placement of Burke with, and subsequent denial of his request for a transfer from, inmate Adrian Spath "potentially endangered" him. Plaintiff does not claim he was in fact harmed by Spath. Thus, although Burke has a right to be free from assaults, to prevail on this claim under § 1983 he "must show the defendants were deliberately indifferent to his constitutional rights, either because they actually deprived him of some right, or because they acted with reckless disregard of his right to be free from violent attacks by fellow inmates."Falls v. Nesbitt, 966 F.2d 375, 377-78 (8th Cir. 1992) (quotingAndrews v. Siegel, 929 F.2d 1326, 1330 (8th Cir. 1991)). Since plaintiff has not even alleged a threat by Spath, he cannot show he was subject to a pervasive risk of harm, and his claim must fail.
Many of Burke's complaints stem from CCCC policies instituted to maintain security of the facility which serve legitimate government interests other than the punishment for the crime charged, justifying the imposition of restraints and conditions for a pretrial detainee. Bell v. Wolfish, 441 U.S. 520, 539 (1979). These complaints include his assertion in Count 4 of his complaint that his constitutional rights were violated because he was "forced to use envelopes that have Cass County Correctional Center printed on them"; Count 5 complains about the policy prohibiting inmates from using writing materials other than pencils and looseleaf paper; Count 4 of the second amendment complains of having to walk in leg irons when outside of CCCC; and Count 10 of the second amended complaint complains of not being given street clothes to appear in public, other than at trial. Certainly none of these conditions amount to punishment. Therefore, plaintiff's claims must fail.
In Count 6 of his complaint Burke alleges that the commissary prices are "very high." As noted by the defendants, Burke was provided with all of his necessities during his confinement; he was not forced to purchase any items from the commissary. As there is no constitutional right of access to a prison gift or snack shop, Tokar v. Armontrout, 97 F.3d 1078, 1083 (8th Cir. 1996), plaintiff has failed to establish of claim under § 1983.
In Count 8 of his complaint Burke essentially asserts that CCCC's grievance procedures are inadequate because he filed nine grievances and only one was ever answered. He does not assert that he was prohibited from filing a grievance or treated differently than any other inmate in this regard. Nor does he assert he was denied any procedural safeguards in making the grievances. The fact that his grievances were repeatedly denied does not amount to a constitutional rights violation. See Ellingburg v. King, 490 F.2d 1270, 1271 (8th Cir. 1974) ("Broad and conclusory statements unsupported by factual allegations are not sufficient to support a cause of action under § 1983.").
In Count 8 of his first amended complaint and again in Count 8 of his second amended complaint Burke asserts that his "rights to visitation are not guaranteed" and the conditions are poor. He also asserts that as a result of a rule violation his visitation rights were restricted. Visitation is a privilege and within the correctional facility's province to administer as it sees fit. In other words, "there is no Constitutional right to contact visitation." Ramos v. Lamm, 639 F.2d 559, 580 n. 26 (10th Cir. 1980) cert. denied 450 U.S. 1041 (1981). Thus, the deprivation of the privilege cannot rise to the level of a § 1983 claim.
Burke alleges in Count 5 of his second amended complaint that he has been denied meaningful access to the courts because the CCCC law library is inadequate and he has been forced to do all of his legal work in pencil. To prevail on such a claim, Burke must show he has suffered an actual injury, such as an inability to present a claim. Lewis v. Casey, 518 U.S. 343 (1996). This he obviously cannot do. Accordingly, Burke fails to present a claim under Count 5 of his second amended complaint.
Count 5 of the amended complaint alleges that CCCC's no smoking policy and alleged no caffeine policy amount to cruel and unusual punishment. There is no allegation that Burke suffered actual harm as a result of the no smoking policy, nor did he seek assistance for nicotine withdrawal. Furthermore, the policies serve reasonable and legitimate purposes and are not tantamount to unconstitutional punishment. Bell v. Wolfish, 441 U.S. 520, 539 (1979). For this reason, plaintiff's § 1983 claim must fail.
Defendants state that regular caffeinated coffee is available to the inmates.
The last remaining claim of constitutional rights violation is Burke's assertion in Count 3 of his second amended complaint that his rights were violated due to the co-pay charges for medical appointments and prescriptions and Count 7 of the amended complaint regarding a nervous breakdown he apparently suffered, for which he received medication. As noted by defendants, Burke has again failed to allege facts indicating he has been injured by the co-pay policy. To the contrary, Burke received treatment and medications for which his prison account was never debited, despite the existence of the co-pay policy. Furthermore, the policy provides that no one shall be denied medical treatment due to their failure to pay. Thus, the co-pay policy does not amount to punishment, and has been repeatedly held not to represent deliberate indifference in violation of the Eighth Amendment. See Hutchinson v. Belt, 957 F. Supp. 97 (W.D.La. 1996) (finding that the prison's medical co-payment policy does not violate the Eighth Amendment); Hudgins v. DeBruyn, 922 F. Supp. 144 (S.D.Ind. 1996) (holding that the prison policy requiring inmates to purchase over the counter medications with personal funds does not violate the Eighth Amendment); Johnson v. Department of Public Safety and Correctional Services, 885 F. Supp. 817 (D.Md. 1995) (holding that the jail's co-payment policy served legitimate and reasonable prison goals). Because Burke received all appropriate medical treatment, his claim in Count 7 of the amended complaint is also without merit.
In sum, plaintiff's complaint, amended complaint and second amended complaint fail to state a cause of action under § 1983. Accordingly, defendants' Motion for Summary Judgment should be granted and plaintiff's complaints be dismissed, with prejudice.
In the light of the foregoing, this court declines to address defendants' positions regarding their entitlement to qualified immunity and the lack of municipal liability, other than to say they likely have significant merit. See Tokar v. Armontrout, 97 F.3d 1078, 1083 (8th Cir. 1996).
IT IS RECOMMENDED:
Defendants' Motion for Summary Judgment (Doc. #38) be GRANTED. Plaintiff's complaint and all amendments thereto should be dismissed, with prejudice, for failure to state a claim upon which relief may be granted. Plaintiff's request for injunctive or declaratory relief should be DENIED as MOOT.
Pursuant to Local Rule 72.1(E)(4) any party may object to this report and recommendation within ten (10) days after being served a copy.
Dated this __ day of August, 2000.