Santos v. Flemmings et al (INMATE2)

Filing 26

RECOMMENDATION of the Magistrate Judge that this case be dismissed with prejudice prior to service of process as further set out. Objections to R&R due by 12/15/2009. Signed by Honorable Terry F. Moorer on 12/1/09. (sl, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION _____________________________ N E D O L A N D E Z LEONEL SANTOS, #140 896 P l a in tif f , v. O F F IC E R DANNY FLEMMING, e t al., D e f e n d a n ts . _____________________________ * * * * * 2:09-CV-787-TMH (WO)

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE T h is matter is before the court on an amended complaint filed by Plaintiff on October 1 9 , 2009.1 Plaintiff seeks $10,000.00 in damages for a violation of his right to equal p r o t e c ti o n . Names as defendants are Lieutenant A. Moses, Sergeant Calhoun, and

C o rre c tio n a l Officer Danny Flemming. Upon review of Plaintiff's amended complaint the c o u rt finds that this matter is due to be dismissed prior to service under 28 U.S.C. § 1 9 1 5 ( e ) ( 2 ) ( B ) .2

Plaintiff originally filed this action on August 20, 2009. On October 8, 2009 the court directed Plaintiff to file an amended complaint as further set forth therein. The order also informed Plaintiff that the amended complaint filed in compliance with the October 8 order would supersede the original complaint. (See Doc. No. 19.) A prisoner who is allowed to proceed in forma pauperis in this court will have his complaint screened in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B). This screening procedure requires the court to dismiss a prisoner's civil action prior to service of process if it determines that the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
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I. DISCUSSION A . Equal Protection P la in tif f alleges that Defendants violated his right to equal protection on July 4, 2009 b y denying him the opportunity to eat one of the two meals served that day. According to P la in tif f , he took the shortest route to the chow hall but "[m]issed chow because [he] was s e n t back to go the route far around away from the chow hall . . ." (Doc. No. 22 at pg. 3.) Equal protection principles require generally that government officials behave in a w a y such "that all persons similarly situated should be treated alike." Cleburne v. Cleburne L iv in g Center, Inc., 473 U.S. 432, 439 (1985). Thus, in order to establish a claim cognizable u n d e r the Equal Protection Clause, a plaintiff must, at the very least, allege that he is s im ila rly situated with other persons who were treated differently and that the reason for the d if f e re n tia l treatment was based on a constitutionally protected interest. Jones v. Ray, 279 F .3 d 944, 947 (11 th Cir. 2001); Damiano v. Florida Parole and Probation Com'n, 785 F.2d 9 2 9 , 932-33 (11 th Cir. 1986). Inconsistency in the operation of a prison may not, in itself, c o n s titu te a denial of equal protection. Village of Arlington Heights v. Metropolitan Hous. D e v . Corp., 429 U.S. 252, 265-66 (1977); Jones v. White, 992 F.2d 1548, 1573 (11 th Cir. 1 9 9 3 ); E & T Realty v. Strickland, 830 F.2d 1107 (11 th Cir. 1987). [ O ]f f icia l action will not be held unconstitutional solely because it results in a . . . disproportionate impact. . . . Proof of . . . discriminatory intent or p u rp o s e is required to show a violation of the Equal Protection Clause. D is c rim in a to ry purpose . . . implies more than intent as volition or intent as a w a re n e ss of consequences. It implies that the decision maker . . . selected . . . a particular course of action at least in part 'because of,' not merely 'in spite o f ,' its adverse effects upon an identifiable group.

Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (footnote and citation o m itte d ); see also Hernandez v. New York, 500 U.S. 352, 359 (1991). Evidence which merely in d ic a te s disparity of treatment or erroneous or even arbitrary administration of state powers, ra th e r than against instances of purposeful or invidious discrimination, is insufficient to show d is c rim in a to ry intent. McKleskey v. Kemp, 481 U.S. 279, 292 (1987). Conclusory allegations o r assertions of personal belief of disparate treatment or discriminatory intent are insufficient. G J R Inv., Inc. v. County of Escambia, 132 F.3d 1359, 1367-68 (11th Cir. 1998); Coon v. Ga. P a c . Corp., 829 F.2d 1563, 1569 (11th Cir. 1987). In m a te s themselves do not constitute a suspect or quasi-suspect class entitling such p e rs o n s to "strict scrutiny" of disparate government treatment. Here, what Plaintiff

c o m p la in s of is his disappointment in missing one of two meals served at the prison during a holiday meal schedule. Plaintiff regards this conduct as actionable unequal treatment. N e v e rth e le ss , Plaintiff does not allege that he has been subjected to any tangible unequal tre a tm e n t by Defendants' conduct such as their decision being based upon a constitutionally p ro te c te d interest. As a matter of law, therefore, the allegations supporting this claim, without m o re , do not rise to the level of a constitutional violation. B . Eighth Amendment T o the extent Plaintiff's claim that he missed a meal on July 4, 2009 may be c o n sid e re d to assert an Eighth Amendment violation, he is likewise entitled to no relief. P la in tif f claims that missing one of the meals served on July 4, 2009 was unthoughtful and u n re a so n a b le conduct and deprived him of one of the required nutritional number of meals

served that day (Doc. No. 22 at pgs. 3-4.) A prison official has a duty under the Eight Amendment to "ensure that inmates re c e iv e adequate food, clothing, shelter and medical care." Farmer v. Brennan, 511 U.S. 8 2 5 , 832 (1994). In order to demonstrate an Eighth Amendment violation with respect to c o n d itio n s of confinement, a prisoner must satisfy both an objective and a subjective inquiry. F a r m e r, 511 U.S. at 834. The objective component requires an inmate to prove that he was d e n ie d the "minimal civilized measure of life's necessities." Id. The challenged prison c o n d itio n must be "extreme" and must pose "an unreasonable risk of serious damage to his f u tu re health." Chandler v. Crosby, 379 F.3d 1278, 1289-90 (11 th Cir. 2004). The subjective c o m p o n e n t requires a prisoner to prove that the prison official acted with "deliberate in d if f ere n c e" in disregarding that risk by showing that an official knew the inmate faced a " su b s ta n tia l risk of serious harm" and with such knowledge, disregarded that risk by failing to take reasonable measures to abate it. Farmer, 511 U.S. at 828, 834, 837. With respect to claims involving a denial of food, courts look to the amount and d u ra tio n of the deprivation in determining whether the deprivation is sufficiently serious. See T a lib v. Gilley, 138 F.3d 211, 214 n.3 (5 th Cir. 1998). In this case, Plaintiff alleges the d e p riv a tio n of a single meal on one occasion. The court concludes that this deprivation is not s u f f ic ie n tly serious to rise to the level of a constitutional violation, and it is, therefore, subject to dismissal as frivolous. 28 U.S.C. § 1915(e)(2)(B)(i). See e.g. Dartling v. Farwell, 139 F e d . Appx 847 (9 th Cir. 2005) (inmate's allegation that he was deprived of a single meal did n o t constitute an injury serious enough to support an Eighth Amendment claim.); Wilkins v.

Roper, 843 F. Supp. 1327 (E.D. Mo.1994) (plaintiff failed to state a claim under the Eighth A m e n d m e n t based on the denial of a single meal); Brown v. Madison Police Department, 2 0 0 3 WL 23095753, *3 (W.D. Wis. 2003) (dismissing claim by plaintiff alleging that he was d en ied two meals on a single occasion). I I . CONCLUSION A c c o r d in g ly, it is the RECOMMENDATION of the Magistrate Judge that this case b e DISMISSED with prejudice prior to service of process pursuant to the provisions of 28 U .S .C . § 1915(e)(2)(B)(i). It is further O R D E R E D that the parties are DIRECTED to file any objections to the R e c o m m e n d a tio n on or before December 15, 2009. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation to which a party objects. F r iv o lo u s , conclusive or general objections will not be considered by the District Court. The p a rtie s are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a g i s tr a t e Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of

Prichard, 661 F.2d 1206 (11 th Cir. 1981, en banc), adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on S e p te m b e r 30, 1981. D o n e , this 1st day of December 2009.

/s/Terry F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE