Opinion
C. A. 9:21-01343-MGL-MHC
09-20-2021
Leslie Tucker, Plaintiff, v. Jackie McGee, Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry, United states Magistrate Judge
This a civil action filed by pretrial detainee housed at the Florence County Detention Center (FCDC). In the event a limitations issue arises, Plaintiff shall have the benefit of the holding in Houston v. Lack, 487 U.S. 266 (1988) (prisoner's pleading was filed at the moment of delivery to prison authorities for forwarding to the district court). Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
In the Court's Order dated May 14, 2021, Plaintiff was given the opportunity to bring his case into proper form by providing the specific items as specified in the Order. He was also advised of pleading deficiencies. ECF No. 8. Plaintiff has not filed all the necessary proper form documents, as discussed further below. He filed his Amended Complaint on May 27, 2021.
I. BACKGROUND
Although Plaintiff mentions other employees of FCDC, he only asserts claims against Defendant Jackie McGee, a kitchen supervisor at the FCDC. He appears to allege that, beginning on September 25, 2020, Defendant fed Plaintiff and other inmates cold meal trays and “un-prep” food every day. Amended Complaint, ECF No. 11 at 4. He requests $200,000.00 in damages. ECF No. 11 at 5.
Plaintiff provided copies of three grievances he allegedly filed at the FCDC. In a grievance dated January 1, 2012, Plaintiff asserts that his breakfast was served cold, he informed Officer Mclveen that the food was cold, and Officer Mclveen disposed of the tray without telling the food administrator about an ongoing problem. ECF No. 11-1 at 1. On January 6, 2021, Plaintiff submitted a grievance to an unnamed “Major” in which he complained that he and other inmates had been eating cold meal trays for “to[o] long” and that if the Major did not come to speak with Plaintiff in the next day or so, Plaintiff would “continue to call the Federal U.S. Marshal[]s out to [the Major's] jailhouse….” Id. at 2. In a grievance dated December 30, Plaintiff complained that he was fed cold and “un-prep” breakfast trays by the housing officer and he requested that Sergeant Scott explain why Scott allowed the food administrator and officers to serve cold food.
Plaintiff did not place a year on the grievance, but presumably it was submitted on December 30, 2020.
II. STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se Amended Complaint pursuant to the procedural provisions of 28 U.S.C. § 1915, the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996), and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992), Neitzke v. Williams, 490 U.S. 319 (1989), Haines v. Kerner, 404 U.S. 519 (1972), Nasim v. Warden, Maryland House of Corr., 64 F.3d 951 (4th Cir. 1995), and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se petitions are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016).
However, even when considered under this less stringent standard, for the reasons set forth below, the Amended Complaint submitted in this case is subject to summary dismissal. The requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).
III. DISCUSSION
A. Failure to State a Claim
This action should be summarily dismissed because Plaintiff fails to state a cognizable claim against the named Defendant in this action. 1. Cold Food Claims
Plaintiff claims that Defendant refuses to send out meals on a “hot box cart” and serves him cold meal trays every day. Although Plaintiff states that he brings his case pursuant to § 1983, he failed to identify any constitutional or statutory right that was violated. See ECF No. 11 at 3.
Although Plaintiff appears to assert that Defendant is prohibited from serving cold food because federal funds were allegedly used to pay for the food, he has not identified any specific federal law that Defendant allegedly violated.
In the light most favorable to Plaintiff, he may be attempting to alleged that his Fourteenth Amendment rights have been violated. The Fourteenth Amendment proscribes incarcerating a pretrial detainee in conditions that “amount to punishment, or otherwise violate the Constitution.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). However, not every inconvenience encountered rises to the level of “punishment” from a constitutional standpoint. Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988). Conditions constitute punishment when there is “an ‘expressed intent' to punish” or “a lack of a reasonable relationship ‘to a legitimate nonpunitive governmental objective, from which a punitive intent may be inferred.” Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992) (quoting Martin v. Gentile, 849 F.2d at 870). “To demonstrate that conditions of confinement constitute cruel and unusual punishment, [an inmate] must (1) establish that prison officials acted with ‘deliberate indifference' and (2) prove extreme deprivations of basic human needs or ‘serious or significant' pain or injury.” Smith v. Ozmint, 578 F.3d 246, 255 (4th Cir. 2009) (quoting Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996)). To show that the conditions deprived him of a basic human need, a plaintiff must allege officials failed to provide him with humane conditions of confinement, such as “adequate food, clothing, shelter, and medical care, and [taking] reasonable measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994).
Plaintiff fails to state a claim concerning the food he is served. Plaintiff has not alleged any facts to indicate that he suffered an extreme deprivation of a basic human need or suffered serious or significant pain or injury. Cold food does not constitute a deprivation of a necessity of life. See Prophete v. Gilless, 869 F.Supp. 537, 538 (W.D. Tn. 1994) (holding that cold food does not pose danger to inmate health and thus does not constitute deprivation of necessity of life); see also Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir.1985) (Cold food “while unpleasant, does not amount to a constitutional deprivation.”). Although Plaintiff claims that he received a “sease” of his back/upper shoulder (ECF No. 11 at 5), he has alleged no facts to indicate that his medical condition resulted from cold food. Numerous courts have held that cold food does not rise to the level of a constitutional violation. See, e.g., Hewitt v. Ward, No. CIV.A. 0:12-2373-MGL, 2013 WL 4056293, at *5 (D.S.C. Aug. 12, 2013) (unpublished) (“To the extent that [plaintiff] alleges that he experienced cruel and unusual punishment because ... of the food's temperature, or because of the lack of variety of his meals, his claims fail as a matter of law.”); Davis v. Villers, No. 5:12CV48, 2012 WL 7017863, at *7 (N.D. W.Va. Oct. 9, 2012) (unpublished) (no constitutional claim found where the plaintiff did not allege that his health was endangered in any way and merely alleged that he was “displeased with the temperature of the food”), report and recommendation adopted, 2013 WL 459747 (N.D. W.Va. Feb. 7, 2013) (unpublished); Laufgas v. Speziale, 263 F. App'x. 192, 198 (3d Cir. 2008) (finding no constitutional right to hot meals every day); Lunsford v. Bennett, 17 F.3d 1574, 1581 (7th Cir. 1994) (holding that allegations of cold, poorly prepared beans were insufficient to state a constitutional claim); Brown-El v. Delo, 969 F.2d 644, 648 (8th Cir. 1992) (finding no constitutional violation for serving prisoner cold food).
Plaintiff has also not alleged any facts to indicate that Defendant acted with deliberate indifference. He merely appears to assert that Defendant should bring him food on a hot box and serve him hot food, but he has alleged no facts to indicate that this rises to the level of deliberate indifference. Additionally, Plaintiff appears to admit that there is no hot box cart available at FCDC for Defendant McGee to use, as he asks in one of his grievances “[why] can[‘t] a Hot box be funded by the Feds to keep the Inmates['] [f]ood warm back here?” ECF No. 11-1 at 3.
2. Medical Claim
In the “Injuries” section of the Amended Complaint, Plaintiff states that he received a “sease on [his] back[, his] upper shoulder.” ECF No. 11 at 5. He may be attempting to assert a claim as to medical care because he asserts that he “notified for medical attention and was refused.” Id.
To the extent that Plaintiff may be attempting to assert a claim for medical deliberate indifference, his claim should be dismissed because Plaintiff has not alleged that he requested medical attention and was refused such from the named Defendant. Plaintiff fails to provide any specific facts to support a claim that Defendant McGee violated his federal constitutional or statutory rights. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (requiring, in order to avoid dismissal, “ ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests'” (quoting Fed.R.Civ.P. 8(a)(2))). Although the “liberal pleading requirements” of Rule 8(a) only require a “short and plain” statement of the claim, a plaintiff must “offer more detail ... than the bald statement that he has a valid claim of some type against the defendant.” Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001) (internal citations omitted); see also White v. White, 886 F.2d 721, 723 (4th Cir. 1989) (district court did not abuse discretion by dismissing plaintiff's complaint which “failed to contain any factual allegations tending to support his bare assertion”). An individual defendant is not liable under § 1983 absent personal involvement. See Iqbal, 556 U.S. at 676-77 (explaining that “a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution” because each official can be liable only for his own misconduct); see Williamson v. Stirling, 912 F.3d 154, 171 (4th Cir. 2018) (“To establish personal liability under § 1983, however, the plaintiff must affirmatively show that the official charged acted personally in the deprivation of the plaintiff's rights. . . . Importantly, mere knowledge of such a deprivation does not suffice.”) (internal quotation marks and citations omitted).
To the extent Plaintiff is attempting to assert a claim under § 1983 for deliberate indifference to a serious medical need, he must allege that he had a serious medical need, and that officials knowingly disregarded that need and the substantial risk it posed. See Farmer v. Brennan, 511 U.S. at 835; Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 209-11 (4th Cir. 2017). An official acts with deliberate indifference if he had actual knowledge of the detainee's serious medical needs and the related risks, but nevertheless disregarded them. See Scinto v. Stansberry, 841 F.3d 219, 236 (4th Cir. 2016). Plaintiff provides no details as to when the “sease” occurred, the duration of this event, or the extent of this alleged condition. Thus, he simply fails to allege sufficient facts to indicate that he had a serious medical need. See, e.g., Sledge v. Kooi, 564 F.3d 105, 108 (2nd Cir. 2009) (finding that eczema, back pain, stomach disorders, allergies, and asthma did not constitute a “serious medical need”); Cooper v. Casey, 97 F.3d 914, 916 (7th Cir. 1996) (stating that minor aches and pains do not rise to the level of a serious medical need); Beckwith v. Giroux, 2002 WL 32356381, at *4 (D.Md. Aug. 8, 2002) (rejecting “low back pain” as a serious medical condition sufficient to support the plaintiff's Eighth Amendment claim). Nor has Plaintiff alleged that Defendant, a kitchen supervisor who he has not alleged had anything to do with medical care at the FCDC, knowingly disregarded any serious need of Plaintiff for medical care.
Because Plaintiff was a pre-trial detainee at all relevant times, the Fourteenth Amendment applies to his claim for deliberate indifference to serious medical needs. The analysis, however, remains the same. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239 (1983); but see Kingsley v. Hendrickson, 576 U.S. 389, 397-398, 400-401 (2015) (holding that the test for excessive force claims brought by pretrial detainees under the Fourteenth Amendment differs from the test for excessive force claims brought by convicted prisoners under the Eighth Amendment). Therefore, Eighth Amendment cases are instructive in analyzing pretrial detainees' claims of deliberate indifference.
3. Claims of Other Inmates
Plaintiff alleges that other inmates were also served cold food. To the extent that Plaintiff, a non-lawyer, may be attempting to allege claims on behalf of other inmates, he may not do so. See Laird v. Tatum, 408 U.S. 1 (1972); see also Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464, 482 (1982); Flast v. Cohen, 392 U.S. 83, 99 (1968) (a district court, when determining whether a plaintiff has standing to sue, must focus on the status of the party who has filed the complaint, such that the merits of the case are irrelevant); Lake Carriers Ass'n v. MacMullan, 406 U.S. 498, 506 (1972); Hummer v. Dalton, 657 F.2d 621, 625-626 (4th Cir. 1981) (a prisoner's suit is “confined to redress for violation of his own personal rights and not one by him as a knight-errant for all prisoners”). Cf. Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (a pro se prisoner cannot be an advocate for others in a class action).
4. State Law Claims
To the extent that Plaintiff may be attempting to allege claims, such as negligence, under South Carolina law, such claims should be dismissed. As Plaintiff fails to state any federal claim, only the state law claims would remain, and federal courts are allowed to hear and decide state-law claim(s) only in conjunction with federal-law claims, through the exercise of “supplemental jurisdiction.” See 28 U.S.C. §1367; Wisconsin Dep't of Corrs. v. Schacht, 524 U.S. 381, 387 (1998). Of course, a district court may have jurisdiction of a civil action “where the matter in controversy exceeds the sum or value of $75,000...and is between - (1) citizens of different States...”. 28 U.S.C. § 1332. However, Plaintiff has not alleged complete diversity of the parties. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 372-374 (1978) (Complete diversity of parties means that no party on one side may be a citizen of the same State as any party on the other side). Here, Plaintiff and Defendant are citizens of South Carolina. See ECF No. 11 at 1.
Thus, there is no complete diversity and Plaintiff may not bring his claims pursuant to § 1332. As Plaintiff has asserted no valid federal claim and there is no diversity jurisdiction, this Court should not exercise supplemental jurisdiction over any state law claims. See 28 U.S.C. § 1367 ; see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); Tigrett v. Rector and Visitors of the Univ. of Va., 290 F.3d 620, 626 (4th Cir. 2002) (affirming district court's dismissal of state law claims when no federal claims remained in the case); Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999) (“[T]he Constitution does not contemplate the federal judiciary deciding issues of state law among non-diverse litigants”).
B. Failure to Bring Case into Proper Form
Finally, it should be noted that Plaintiff has failed to bring this case into proper form. In the Court's Order, Plaintiff was given the opportunity to bring his case into proper form by providing a fully completed summons form and a fully completed and signed Form USM-285. Plaintiff was specifically warned that his failure to provide the necessary document within the timetable set forth in the Order would subject the case to dismissal. See ECF No. 8.
The time to bring this case into proper form has now lapsed. Although Plaintiff provided a partially completed summons form, he failed to fully complete it and he failed to provide a fully completed and signed Form AO-240. Thus, in the alternative, it is recommended that this action be dismissed in accordance with Fed.R.Civ.P. 41. See Link v. Wabash R.R. Co., 370 U.S. 626 (1962); Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989) (holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion).
RECOMMENDATION
Based on the foregoing, it is recommended that the Court dismiss Plaintiffs Amended Complaint without issuance and service of process.
The Fourth Circuit Court of Appeals has noted that, where the district court has already afforded a litigant with an opportunity to amend, the district court has the discretion to either afford another opportunity to amend or can “dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order.” Workman v. Morrison Healthcare, 724 Fed.Appx. 280, 281 (4th Cir. 2018); see also Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020); Domino Sugar Corp. v. Sugar Workers Local Union 392 of United Food and Commercial Workers Int 'l Union, 10 F.3d 1064 (4th Cir. 1993).
Plaintiffs attention is directed to the important notice on the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Colls, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984). 12