Washington v. Heartline et al

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 13 Report and Recommendations, and Plaintiff's Complaint is dismissed for failure to state a claim. Further directing the Clerk to place a § 1915(g) strike flag on the case. Signed by Honorable P. K. Holmes, III on September 21, 2011. (cap)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
JEROME WASHINGTON
v.

PLAINTIFF
Case No. 4:10-CV-04189

CAPTAIN STEVE HEARTLINE and
SGT. JOHNNY WELCH

DEFENDANTS
ORDER

On this 21st day of September 2011, there comes on for consideration the Report and
Recommendations (Doc. 13) filed in this case on July 5, 2011, by the Honorable Barry A. Bryant,
United States Magistrate for the Western District of Arkansas. Also before the Court are Plaintiff’s
Objections (Doc. 14) to the Report and Recommendations.
The court has reviewed this case and, being well and sufficiently advised, finds as follows:
Plaintiff’s objections offer neither law nor fact requiring departure from the Report and
Recommendation. The Court notes, initially, that Plaintiff is not expected to be well-versed in the
law when stating his claim. The Court will construe a pro se plaintiff’s pleadings broadly based on
the facts provided. See e.g., Haines v. Kerner, 404 U.S. 519 (1972)(holding pro se complaints “to
less stringent standards than formal pleadings drafted by lawyers. . . ”). The Magistrate broadly
construed all of Plaintiff’s factual allegations in reaching the conclusions reflected in the Report and
Recommendation. Plaintiff, while doing a commendable job of arguing relevant legal precedent in
his Objections, does not offer any new facts which would convert his claim into a claim for which
relief may be granted. Plaintiff argues that he disagrees with the Magistrate’s interpretation and
application of Whitnack v. Douglas County, 16 F.3d 954 (8th Cir. 1994). The Court, however, has
reviewed Whitnack and agrees with the Magistrate’s conclusion that dismissal of this action is

appropriate. The conditions suffered by the plaintiffs in Whitnack seem to have been more extreme
than those alleged by Plaintiff in the instant matter. As the Eighth Circuit stated, “While the length
of time a prisoner must endure an unsanitary cell is undoubtedly one factor in the constitutional
calculus, the degree of filth is surely another, and . . . the length of time required before a
constitutional violation is made out decreases as the level of filthiness endured increases.” Whitnack,
16 F.3d at 958. While Plaintiff may have been subjected to some level of discomfort for longer than
the Whitnack plaintiffs, it appears to the Court that the “level of filthiness endured” was far less.
Furthermore, Plaintiff has not alleged that he was deprived of a single, identifiable human
need such as food, warmth, or exercise. See, e.g., Tokar v. Armontrout, 97 F.3d 1078, 1082 (8th Cir.
1996). Evidence that a plaintiff was simply made “uncomfortable” is not enough. Whitnack, 16 F.3d
at 958. Plaintiff argues that he could have been exposed to toxic mold. A remote future possibility
of harm from the mold is not actionable. Plaintiff has not alleged that he has suffered any health
problems as a result of any possible exposure. Finally, although the Court can foresee that extreme
lighting issues may, in some cases, result in constitutional violations, Plaintiff has not alleged facts
sufficient to indicate that the lighting issues in his cell, to which he was exposed for fifteen days,
were so unreasonable as to result in his suffering physical or psychological harm. While Plaintiff
alleges he suffered “mental anguish” due to the conditions in the cell, he also admits he received no
medical treatment for such mental anguish other than seeing the psychologist. See Hudson v.
McMillian, 503 U.S. 1, 8-9 & 16-17 (1992) (Blackmun, J., concurring) (de minimim infliction of
psychological pain is not actionable). In other words, the lighting issue was not sufficiently serious
to meet the objective component required to sustain Eighth Amendment claims.
For the above-stated reasons, the Court finds that the Report and Recommendation is proper
and should be and hereby is ADOPTED IN ITS ENTIRETY. Accordingly, for the reasons stated

herein and in the Magistrate Judge’s Report and Recommendations, Plaintiff’s Complaint is
DISMISSED for failure to state a claim. The dismissal of this case constitutes a strike under the
Prison Litigation Reform Act, 28 U.S.C. § 1915(g). The Clerk is therefore directed to place a §
1915(g) strike flag on the case.
IT IS SO ORDERED this 21st day of September 2011.

/s/P. K. Holmes, III
P.K. HOLMES, III
UNITED STATES DISTRICT JUDGE