Ashford v. Harris et al

Filing 32

RECOMMENDED DISPOSITION recommending that 17 Defendants' Motion for Summary Judgment be granted and Plaintiff's claims should be dismissed with prejudice. Objections to R&R due 11 days from the time of the Recommended Disposition. Signed by Magistrate Judge Beth Deere on 11/19/09. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS PINE BLUFF DIVISION

C H A R L E S ASHFORD A D C #133975 V. G R A N T HARRIS, et al. C A S E NO.: 5:09CV00097 SWW/BD

P L A IN T IF F

DEFENDANTS

R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections: T h e following recommended disposition has been sent to United States District J u d g e Susan Webber Wright. Any party may file written objections to this re c o m m e n d a tio n . Objections should be specific and should include the factual or legal b a s is for the objection. If the objection is to a factual finding, specifically identify that f in d in g and the evidence that supports your objection. An original and one copy of your o b je c tio n s must be received in the office of the United States District Court Clerk no later th a n eleven (11) days from the date you receive the Recommended Disposition. A copy w ill be furnished to the opposing party. Failure to file timely objections may result in w a iv e r of the right to appeal questions of fact. M a il your objections and "Statement of Necessity" to: C le rk , United States District Court E a s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325

II.

B ackground: P la in tif f , an inmate at the Varner Super Max Unit ("VSM") of the Arkansas

D e p a rtm e n t of Correction ("ADC") filed this action pro se under 42 U.S.C. § 1983. (D o c k e t entry #2) In his Complaint, Plaintiff alleges that he has not been provided n u tritio n a lly adequate food and, as a result, has suffered weight loss. Plaintiff originally n a m e d as Defendants Grant Harris, Warden of VSM; John Whaley, Assistant Warden of V S M ; and Charles Freyder, Chaplain at VSM. The Court previously dismissed all claims a g a in s t Mr. Freyder. (#11) Defendants Harris and Whaley now have filed a motion for s u m m a ry judgment. (#17) In the motion, the Defendants argue that: (1) they are entitled to qualified im m u n ity; (2) Plaintiff has failed to state a claim for deliberate indifference; (3) Plaintiff h a s failed to state a conditions-of-confinement claim; and (4) respondeat superior does n o t apply to § 1983 claims. Plaintiff has responded to the Defendants' motion. (#31) Based upon the evidence presented, the Court recommends that the Defendants' m o tio n (#17) be GRANTED and that Plaintiff's claims be DISMISSED with prejudice.1

Because Plaintiff has failed to state either a deliberate-indifference or a c o n d itio n s -o f -c o n f in e m e n t claim, the Court will not address the Defendants' qualified im m u n ity argument in this recommendation. In addition, the Court notes that despite b e in g characterized as both a deliberate-indifference and conditions-of-confinement c la im , the claim that an individual has been denied a nutritionally adequate diet arises u n d e r the prohibition against cruel and unusual punishment contained in the Eighth A m e n d m e n t. Although a deliberate-indifference claim requires that Plaintiff establish th a t the Defendants were aware of a substantial risk of serious harm to Plaintiff and c o n s c io u s ly disregarded that risk, Farmer v. Brennen, 511 U.S. 825, 832, 114 S.Ct. 1970 2

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III.

D is c u s s io n : A. S ta n d a rd

S u m m a ry judgment is appropriate when the evidence, viewed in the light most f a v o ra b le to the nonmoving party, presents no genuine issue of material fact. FED. R. C IV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 246 (1986). Once the moving party has successfully carried its b u rd e n under Rule 56(c), the nonmoving party has an affirmative burden to go beyond the p le a d in g s and by depositions, affidavits, or otherwise, designate "specific facts showing th a t there is a genuine issue for trial." FED. R. CIV. P. 56(e); Mosley v. City of N o r th w o o d s , 415 F.3d 908, 910-11 (8th Cir. 2005) ("The nonmoving party may not `rest o n mere allegations or denials, but must demonstrate on the record the existence of s p e c if ic facts which create a genuine issue for trial.'" (quoting Krenik v. County of Le S u e u r , 47 F.3d 953, 957 (8th Cir. 1995))). If the opposing party fails to carry that burden o r fails to establish the existence of an essential element of its case on which that party w ill bear the burden of proof at trial, summary judgment should be granted. See Celotex,

(1 9 9 4 ), and a conditions-of-confinement claim requires that Plaintiff establish that he was d e p riv e d of a "minimal civilized measure of life's necessities," Rhodes v. Chapman, 452 U .S . 337, 347, 101 S.Ct. 2392 (1981), both require that Plaintiff provide proof of a n u tritio n a lly deficient diet. Here, Plaintiff has failed to present any such proof. As a re s u lt, the Court does not address these claims separately in this recommendation. 3

477 U.S. at 322. "Although it is to be construed liberally, a pro se complaint must c o n ta in specific facts supporting its conclusions." Martin v. Sargent, 780 F.2d 1334, 1 3 3 7 (8th Cir. 1985). B. A n a l ys i s

H e re , Plaintiff claims that he was denied nutritionally adequate food and that D e f e n d a n ts Harris and Whaley, although aware of this situation, failed to act. It is wells e ttle d that under the Eighth Amendment "prisoners have a right to nutritionally adequate f o o d ." Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir. 1992). In order to establish that a p riso n e r plaintiff has been denied nutritionally adequate food, he must present some e v id e n c e to support this claim. See Pratt v. Corrections Corp. of America, 267 Fed. A p p x . 482, *1 (8th Cir. 2008) (unpublished per curiam) (inmate plaintiff's vegetarian diet d id not violate his eighth amendment rights "as he did not rebut defendants' evidence that m e a ls were nutritionally adequate"). Plaintiff has failed to present any such evidence. In contrast, the Defendants have a tta c h e d to their motion a document containing the caloric and nutritional information of its Kosher meal plan. (#19-7) Based upon this evidence, it appears that the Kosher meal p la n provides approximately 2,620 calories a day, including 107 grams of protein. (#197 ) Because Plaintiff has failed to present any evidence that the Kosher meal plan failed to

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provide him a nutritionally adequate diet, Plaintiff cannot establish either a deliberate in d if f e re n c e or condition-of-confinement claim as a matter of law.2 In addition, Plaintiff has failed to present evidence that he sustained any injury as a re s u lt of the alleged nutritional deprivation. In his Complaint, Plaintiff specifically a lle g e s that "he has been under going a severe weight loss weighing only 150 pounds," (#2 at p.4), but according to Plaintiff's "inmate synopsis" completed at the time Plaintiff e n te re d the ADC, which is attached to the Defendants' motion for summary judgment, in 2 0 0 5 , Plaintiff weighed 144 pounds. (#19-2) Accordingly, it appears that Plaintiff has a c tu a lly gained, rather than lost, weight since his arrival at the ADC. Plaintiff, again, has f a ile d to present any evidence to the contrary. C. R e s p o n d e a t Superior

P la in tif f claims that Defendants Harris and Whaley were aware that he was re c e iv in g inadequate nutrition, but failed to remedy the situation. Although the

The Court also notes that when Plaintiff filed a grievance regarding the alleged in a d e q u a c ie s of the Kosher diet, he was informed that only the Unit's Chaplain could h a v e him removed from the Kosher meal plan list. (#2 at p.8) In his Complaint, Plaintiff s ta te s that he did file a request to be removed from the Kosher diet list. Although the D e f e n d a n ts provide a memo from the chaplain removing Plaintiff from the Common Fare M e a l plan (formerly known as the Kosher diet), that memo is dated August 28, 2008. (#19-10) Plaintiff's grievance is dated October 2008 (#2 at p.8), and the Chief D e p u ty/D e p u ty/A s s ista n t Director's Decision is dated February 27, 2009. (#19-10) Accordingly, it is not clear whether Plaintiff was, in fact, removed from the Kosher diet w h e n requested. Because Plaintiff has failed to present any evidence that he was denied o f a nutritionally inadequate diet while on the Kosher meal plan, however, his claim still f a ils . 5

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Defendants correctly argue that respondeat superior is not a basis for liability under § 1983, supervisors may be liable when their "corrective inaction amounts to deliberate in d if f e re n c e ." Fruit v. Norris, 905 F.2d 1147, 1151 (8th Cir. 1990). Here, because P la in tif f claims that Defendants were personally aware of his situation and failed to act, h e is not attempting to hold these Defendants liable based upon respondeat superior. However, because the Court has determined that Plaintiff has failed to establish a c o n s titu tio n a l claim as a matter of law, the Defendants are entitled to summary judgment. IV. C o n c lu s io n : T h e Court recommends that the Defendants' motion for summary judgment (#17) b e GRANTED. Plaintiff's claims should be DISMISSED with prejudice. D A T E D this 19th day of November, 2009.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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