Opinion
Civil Action 2:11-cv-00831.
October 6, 2011
ORDER AND REPORT AND RECOMMENDATION
I.
Plaintiff Michael Daugherty's Motion for Leave to Proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) and (2) (ECF No. 1) is GRANTED. Plaintiff is required to pay the full amount of the Court's $350 filing fee. 28 U.S.C. § 1915(b)(1).
Plaintiff's application reveals that he currently possesses the sum of $0.07 in his prison account, which is insufficient to pay the full filing fee. His application indicates that his average monthly balance for a six-month period prior to filing his application to proceed in forma pauperis was $0.26. Such funds are insufficient to pay the entire filing fee.
Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff's inmate trust account (Account # A637780) at the London Correctional Institution is DIRECTED to submit to the Clerk of the United States District Court for the Southern District of Ohio as an initial partial payment, 20% of the greater of either the average monthly deposits to the inmate trust account or the average monthly balance in the inmate trust account, for the six months immediately preceding the filing of the Complaint.
After full payment of the initial, partial filing fee, the custodian shall submit 20% of the inmate's preceding monthly income credited to the account, but only when the amount in the account exceeds $10.00 until the full fee of $350.00 has been paid to the Clerk of this Court. 28 U.S.C. § 1915(b)(2); s ee also McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
Checks should be made payable to: Clerk, United States District Court. The checks should be sent to:
Prisoner Accounts Receivable
260 U.S. Courthouse
85 Marconi Boulevard
Columbus, Ohio 43215
The prisoner's name and this case number must be included on each check.
It is ORDERED that Plaintiff be allowed to prosecute his action without prepayment of fees or costs and that judicial officers who render services in this action shall do so as if the costs had been prepaid.
II.
Having performed an initial screen of the Complaint required by 28 U.S.C. §§ 1915(e)(2) and 1915A, it is RECOMMENDED that the Court DISMISS Plaintiff's Complaint for failure to state a claim.
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:
(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 Fed.R.Civ.P. 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, 566 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), "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).
Although Plaintiff does not explicitly label his claim, he appears to bring a claim pursuant to 42 U.S.C. § 1983 for unconstitutional conditions of confinement in violation of the Eighth Amendment. Plaintiff specifically maintains that while eating a meal in the dining hall he noticed maggots in his food. He maintains that he later became sick and implies that he ingested the insects.
It is well established that 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). Nevertheless, various federal courts, including the United States Court of Appeals for the Sixth Circuit in which this Court sits, have suggested that a single incident of food contamination is insufficient to establish a conditions of confinement claim. Smith v. Younger, 187 F.3d 638, 1999 WL 623355, at *2 (6th Cir. Aug. 9, 1999) (holding that the presence of a worm in the plaintiff's food failed to state a conditions of confinement claim); Green v. Atkinson, 623 F.3d 278, 281 (5th Cir. 2010) ("A single incident of food poisoning or finding a foreign object in food does not constitute a violation of the constitutional rights of the prisoner affected."); Tucker v. Metts, No. 2:10-1316, 2011 WL 1085031, at *4 (D.S.C. Feb. 17, 2011) ("[T]he law is clear that a single incidence of unintended food poisoning is not a constitutional violation.").
In this case, the undersigned concludes that Plaintiff's Complaint fails to state a claim upon which relief may be granted. Plaintiff's Complaint gives no indication that there have been multiple instances of foreign objects in his food or otherwise inadequate food preparation. Rather, Plaintiff bases his claim entirely on one incident. Additionally, Plaintiff has pled no facts from which the Court could reasonably infer that the food contamination was intentional. Consequently, while Plaintiff's allegations certainly establish an unpleasant experience, they do not rise to the level of a constitutional claim. It is therefore RECOMMENDED that the Court DISMISS Plaintiff's Complaint for failure to state a claim.
III.
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 a defendant waived appeal of the district court's denial of a pretrial motion by failing to timely object to the 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)).