Arnett v. Turner et al
MEMORANDUM OPINION AND ORDER granting 31 Motion for Summary Judgment filed by Rick Loy, Ray Wingfield, Jackie Newburn, James Langley, David Turner. It is FURTHER ORDERED that all writs issued in connection with the bench trial set for June 20, 201 1, 44 , 45 , and 46 , are hereby WITHDRAWN; the subpoena issued for Chad Prince, 43 , is hereby QUASHED; and the bench trial is CANCELLED. The Clerk of Court is FURTHER DIRECTED to mail a copy of this Order to Chad Prince, 434 Walker Rd., Amity, Arkansas 71921. Signed by Honorable Barry A. Bryant on June 16, 2011. (dmc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
CASE NO.: 6:09–cv-06058
SHERIFF DAVID TURNER et al.
MEMORANDUM ORDER AND OPINION
Michael Arnett, currently an inmate in the Varner Unit of the Arkansas Department of
Correction, in Grady, Arkansas, filed this civil rights action under 42 U.S.C. § 1983. Pursuant to the
provisions of 28 U.S.C. § 636 (c), this case is before the undersigned on consent of the parties. ECF
No. 14. Now before the Court is Defendants’ Motion for Summary Judgment. ECF No. 31. The
Court has also reviewed and considered the Memorandum Brief in support of the motion, ECF No.
32, the Statement of Facts as presented by Defendants, ECF No. 33, as well as the two responses
filed by Plaintiff, ECF Nos. 47 and 48.
As this case is before the Court on a Motion for Summary Judgment, the Court will state the
facts as presented by the non-moving party, the Plaintiff. On October 31, 2006, Plaintiff was booked
into the Clark County Detention Center. ECF No. 48. Plaintiff alleges that during his time at the
Detention Center he was subjected to racial discrimination, malnourishment, unconstitutional
conditions of confinement, and that the Defendants failed to protect him from other inmates. Id.
Plaintiff also makes official-capacity claims that Defendants had the following unconstitutional
cruel and unusual punishment;
denial of medical care;
understaffing of officers;
lock-down policy which denied showers and cell cleaning;
denial of yard call;
denial of food as punishment; and
Specifically, Plaintiff states that on or around January 20, 2007, he was in a fight with other
inmates. Id. On January 19, 2007, Plaintiff had filed a grievance stating he feared harm from other
inmates, and stated that he had some injuries that required medical attention because he had been
harmed by other inmates. Id. Plaintiff also stated this was the second time such an incident had
occurred. ECF No. 48; ECF No. 32, Ex. G. A medical report was filed, dated January 20, 2007,
stating that Plaintiff had a lip and scalp laceration, which was treated on that date, and sutures needed
to be removed in one week. ECF No. 32, Ex. J. Plaintiff states he was delayed over twenty-four
hours in receiving this medical care. ECF No. 48. On January 21, 2007, Plaintiff filed another
grievance, stating that he had been in an altercation the night before, presumably January 20, 2007,
and was in need of medical care. Id.; ECF No. 32, Ex. H. On January 22, 2007, Plaintiff was
moved to B-Block for protection. ECF No. 48.
According to Plaintiff, the January 20, 2007 incident occurred because Plaintiff would not let
the other inmates smoke in his room, and “they got mad.” Id. While those inmates told Defendant
Newburn the incident was related to a magazine, which was taken, Plaintiff states there was no
magazine and the incident was related only to his request that they quit smoking in his room. Id.
On June 10, 2009, Plaintiff alleges he was again harmed by other inmates in the jail. Plaintiff
states that he was given verbal threats, which he conveyed to the Defendants, before the incident.
However, the inmates who threatened Plaintiff were not the inmates who actually injured him on June
10, 2009. Id. Plaintiff had alerted Defendant Loy about “trouble” those inmates were “causing in
the block” but Plaintiff does not state he ever received any threats from those inmates before they
injured him. Id. According to Plaintiff, these inmates had threatened other inmates with shanks.
ECF No. 48. On June 10, Plaintiff’s cellmate was visiting another inmate in another cell, when the
inmates came into the cell and started “beating up” Plaintiff’s cellmate. Id. Plaintiff’s cellmate got
free and came into their cell to wake up Plaintiff and tell Plaintiff what had happened. Id. The
inmates who were causing the injuries tried to enter the cell, but Plaintiff’s cellmate began fighting
them at the door and the fight spilled into the dayroom. Id. Plaintiff and some other inmates tried
to break up the fight, and in the ensuing fight, Plaintiff was injured. Id. Plaintiff states the fight lasted
five to ten minutes, and there was no guard in the booth to monitor the inmates during this time. ECF
No. 48. Because of the two instances alleged by Plaintiff1, he states he has had a total of 20 stitches
and six to seven staples during his 32 month incarceration in Clark County. Id.
Plaintiff further alleges he was subjected to racial discrimination, as he was a Caucasian who
was charged with murder of an African American. Id. Plaintiff alleges Defendant Newburn and nonparty Ruby Moody2 discriminated against him because of his race. Id. Plaintiff alleges that due to
Plaintiff states in his response to the Motion for Summary Judgment that there were three instances of
being injured by other inmates, but does not give any other dates other than January 20, 2007, and June 10, 2009.
ECF No. 48. Plaintiff states the other dates would be available via medical records, but does not provide those
records to the Court. Id. The Court also notes that in his Complaint, ECF No. 1, at 4, Plaintiff states that the
June 10, 2009 incident is “the second time an incident like this happened.” Accordingly, the Court will not
address any alleged failure to protect by Defendants beyond the January 20, 2007, and June 10, 2009, allegations as
no other date has been alleged by Plaintiff.
Plaintiff previously named Rubin Mood as a defendant, but this individual was unable to be located by
the United States Marshal’s Service. Plaintiff was given thirty days to file a Motion for Service stating the full
name and service address of this defendant but did not file any such motion. ECF No. 28. Accordingly, the
defendant named as Rubin Mood was dismissed from this case on May 6, 2011. ECF No. 40.
this racial discrimination, he was placed on lockdown for two to three days at a time and verbal racial
slurs were directed against him by Newburn. Id. Plaintiff also alleges that the inmates were
“coached” to attack him as an act of “racial hate” from Newburn. ECF No. 48. Further, Plaintiff
states he was denied yard call as a “flight risk,” but that Defendant Sheriff Turner knew nothing about
that limitation, and it was placed on him by Defendant Newburn and was racially motivated. Id.
Newburn is also alleged to have not given Plaintiff his food on one occasion because he was not “at
[his] door quick enough,” and another jailer brought his food to him thirty minutes later. Id.
Newburn is alleged to have delayed his receipt of medical care because of Plaintiff’s race, and to have
failed to file grievances submitted by Plaintiff. Id.
Finally, Plaintiff alleges he lost 29 pounds during his incarceration, due to a lack of adequate
calories being provided in his meals. ECF No. 1; ECF No. 48. According to Plaintiff, the jail was
trying to save money by cutting back on food for the inmates. ECF No. 48. Plaintiff could give no
example of the average food provided to him in a day by the Clark County Detention Center, but
stated that it was the same portions as what his son received in kindergarten. Id. The booking
information showed that Plaintiff weighed 160 pounds on October 31, 2006, the date of his entry into
the Clark County Facility. ECF No. 32, Ex. C. Plaintiff states this weight is not accurate as he was
not weighed on a scale, nor was he asked his weight. ECF No. 48. Plaintiff agrees that on January
30, 2009, during a medical visit, a scale was used to measure his weight at 172 pounds. Id. Plaintiff
does agree the Arkansas Department of Correction booking sheet, dated August 20, 2009, shows that
he weighed 163 pounds upon receipt at the ADC, and agrees that his weight was measured by a scale,
at that time. Id.; ECF No. 32, Ex. D. Plaintiff states he was at times delayed food by a non-party,
but that he was never denied food. ECF No. 48.
Plaintiff also alleges the plumbing did not work and some of the cells he stayed in did not have
any running water at all. Id. Further, when an inmate would flush a toilet in one cell, waste could
back up in another cell. Id. Plaintiff made no response upon inquiry, as to how he was harmed by
the plumbing issues alleged to exist in the jail. Id.
According to Plaintiff, black mold grew in the showers, and Plaintiff stated he was harmed
by that mold because “any long exposure can produce substantial health risks.” Id. Plaintiff stated
he had no access to cleaning supplies, as they were brought in at the convenience of the jail and staff,
and would be brought in at night or in the morning, and could contain dirty water. ECF No. 48.
Inmates might also have a two to three day delay before being able to clean. ECF No. 48.
Summary judgment is proper if, after viewing the evidence in the light most favorable to the
non-nonmoving party, no genuine issues of material fact exist and the moving party is entitled to
judgment as a matter of law. Nelson v. Corr. Med. Servs., 533 F.3d 958, 961 (8th Cir. 2008).
Plaintiff cannot survive the motion for summary judgment merely by pointing to disputed facts; the
facts in dispute must be material to the outcome of the case. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1985). If the facts alleged by Plaintiff, when viewed in the light most favorable
to his case, would not allow a reasonable jury to find in his favor, then summary judgment should be
granted in favor of Defendants. Bloom v. Metro Heart Group of St. Louis, Inc., 440 F.3d 1025, 1029
(8th Cir. 2006).
Section 1983 provides a federal cause of action for the deprivation, under color of law, of a
citizen's “rights, privileges, or immunities secured by the Constitution and laws” of the United States.
In order to state a claim under 42 U.S.C. § 1983, plaintiff must allege that the defendant acted under
color of state law and that he violated a right secured by the Constitution. West v. Atkins, 487 U.S.
42 (1988); Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir. 1999). The deprivation must be
intentional; mere negligence will not suffice to state a claim for deprivation of a constitutional right
under § 1983. Daniels v. Williams, 474 U.S. 327 (1986); Davidson v. Cannon, 474 U.S. 344 (1986).
Under § 1983, a defendant may be sued in either his individual capacity, or in his official
capacity, or claims may be stated against a defendant in both his individual and his official capacities.
In Gorman v. Bartch, 152 F.3d 907 (8th Cir. 1998), the Eighth Circuit discussed the distinction
between individual and official capacity suits. As explained by the Gorman case:
Claims against government actors in their individual capacities differ from those in
their official capacities as to the type of conduct that is actionable and as to the type
of defense that is available. See Hafer v. Melo, 502 U.S. 21 (1991). Claims against
individuals in their official capacities are equivalent to claims against the entity for
which they work; they require proof that a policy or custom of the entity violated the
plaintiff's rights, and the only type of immunity available is one belonging to the entity
itself. Id. 502 U.S. at 24-27 (1991). Personal capacity claims, on the other hand, are
those which allege personal liability for individual actions by officials in the course of
their duties; these claims do not require proof of any policy and qualified immunity
may be raised as a defense. Id. 502 U.S. at 25-27.
Gorman, 152 F.3d at 914. Plaintiff brings both official and individual capacity claims in this Section
1983 action. The Court will address each type of claim in turn.
A. Official Capacity Claims
As noted above, official capacity claims are the equivalent of claims asserted against Clark
County. Under § 1983, a governmental entity may not be held vicariously liable for the
unconstitutional acts of employees. However, a governmental entity may be held liable for the
unconstitutional acts of its officials or employees when those acts implement or execute an
unconstitutional policy or custom. Doe v. Washington County, 150 F.3d 920, 922 (8th Cir.1998).
Thus, Clark County would be liable for the Defendants’ conduct only if it had a policy or
custom that caused Plaintiff's injury. See Board of County Comm'rs v. Brown, 520 U.S. 397 (1997).
In the absence of a written policy, a plaintiff must identify a pattern of widespread unconstitutional
conduct that was so pervasive and well-settled that it had the effect of law. See Jane Doe A v.
Special Sch. Dist. of St. Louis County, 901 F.2d 642, 646 (8th Cir. 1990). Plaintiff must show that
Clark County “through its deliberate conduct . . . was the ‘moving force’ behind the injury alleged.”
Brown, 520 U.S. at 404.
“[I]naction or laxness can constitute government custom if it is permanent and well settled.”
Tilson v. Forrest City Police Dept., 28 F.3d 802, 807 (8th Cir. 1994) (citation omitted). “Such a
government custom of laxness or inaction must be the moving force behind the constitutional
violation.” Id. A governmental body may also be held accountable based on a failure to train and
supervise adequately under certain circumstances. City of Canton v. Harris, 489 U.S. 378 (1989).
In this case, Plaintiff maintains Defendants had a policy of cruel and unusual punishment,
which included: locking down the entire jail for weeks at a time and not allowing showers or cell
cleaning during this time; allowing only five minute showers three days a week; not providing
adequate cleaning supplies; not being allowed to go out for yard call; being denied food as a form of
punishment; not having running water in the cells; not having adequate night-time lighting; and not
having enough jailers on duty. Further, Plaintiff maintains Clark County had a policy of racial
discrimination in the form of using racial slurs, had untrained officers, and had a policy of providing
poor to no medical treatment. Finally, Plaintiff seeks punitive damages and compensatory damages
from each of the Defendants for his official capacity claims.
First, punitive damages are, of course, not available against a governmental entity. City of
Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). Second, in this case Plaintiff maintains
several issues he faced while in Clark County jail, but identifies no policy or procedure that was the
moving force behind the alleged constitutional violations. For example, Plaintiff states there were
untrained officers and a shortage of officer staffing but provides no evidence regarding any policy or
procedure followed by Clark County for training or officer staffing. There is no evidence of the ratio
of officers to inmates, or how many officers were working a given shift. In short, Plaintiff provides
no existence of any policy or custom on the part of Clark County, and does not allege any facts
supporting the existence of such a policy or custom, to support his conclusory list of wrongs. There
is simply nothing from which the Court could conclude a genuine issue of fact exists as to Clark
County’s liability. Defendants are therefore entitled to summary judgment on the official capacity
B. Individual Capacity Claims
Plaintiff also makes several individual capacity claims. The Court will address each claim in
i. Failure to Protect
Plaintiff claims Defendants failed to protect him on January 20, 2007, and June 10, 2009,
when he was injured by other inmates in the Clark County Jail. Due process “‘protects pretrial
detainees both from deliberate exposure to violence and from failure to protect when prison officials
learn of a strong likelihood that a prisoner will be assaulted.’ ” Anderson v. Gutschenritter, 836 F.2d
346, 349 (7th Cir.1988) (quoting Matzker v. Herr, 748 F.2d 1142, 1150 (7th Cir. 1984)). Similarly,
the Eighth Amendment imposes a duty on the part of prison officials to protect convicted prisoners
from violence at the hands of other prisoners. See e.g., Perkins v. Grimes, 161 F.3d 1127, 1129 (8th
Cir. 1998). In addressing failure to protect claims brought by pretrial detainees, the United States
Court of Appeals for the Eighth Circuit has noted that pretrial detainees are entitled to at least as
much protection as a convicted inmate and has applied Eighth Amendment analysis to claims brought
both by pretrial detainees and convicted prisoners. See Perkins, 161 F.3d at 1129-1130; see also
Crow v. Montgomery, 403 F.3d 598, 600 (8th Cir. 2005) (analyzing a pretrial detainee's failure to
protect claim under the same Eighth Amendment analysis used for similar claims brought by
convicted prisoners); Thomas v. Booker, 784 F.2d 299 (8th Cir. 1986)(same).
In Riley v. Olk-Long, 282 F.3d 592 (8th Cir. 2002), the appeals court stated:
An Eighth Amendment claim for failure to protect is comprised of two elements.
First, an “inmate must show that [he] is incarcerated under conditions posing a
substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Second, the inmate must establish that the defendant prison official recklessly
disregarded that risk. Jackson v. Everett, 140 F.3d 1149, 1151 (8th Cir. 1998). “For
the purposes of failure to protect claims, it does not matter ... whether a prisoner
faces an excessive risk of attack for reasons personal to [him] or because all prisoners
in [his] situation face such a risk.” Hott v. Hennepin County, Minn., 260 F.3d 901,
906 (8th Cir. 2001)(internal quotations omitted). The question is whether a prison
official has a “sufficiently culpable state of mind,” meaning that [he] is deliberately
indifferent to an inmate's safety. Farmer, 511 U.S. at 834 (internal quotation
omitted). The prison official's state of mind is measured by a subjective, rather than
an objective, standard. Id. at 838-39; see also Jackson, 140 F.3d at 1152
(“[D]eliberate indifference must be viewed from [defendant's] perspective at the time
in question, not with hindsight's perfect vision.”). “[T]he official must both be aware
of facts from which the inference could be drawn that a substantial risk of serious
harm exists, and [he] must also draw the inference.” Farmer, 511 U.S. at 837.
Riley, 282 F.3d at 595; see also Krein v. Norris, 309 F.3d 487 (8th Cir. 2002).
Thus, to prevail on his failure to protect claim, Plaintiff must show: (1) that his incarceration
posed a substantial risk of serious harm, and (2) the Defendants knew of and disregarded an excessive
risk to his safety. Pagels v. Morrison, 335 F.3d 736, 740 (8th Cir. 2003). To establish the second
component, Plaintiff must show that Defendants acted, or failed to act, with deliberate indifference
to his safety. Id. Negligence is not sufficient. Id. Even if the conduct was unreasonable, this is not
enough because “reasonableness is a negligence standard.” Id. at 742 (internal quotation marks and
citation omitted). Plaintiff must have placed the Defendants “on notice” that particular inmates posed
a threat of serious injury to him. Perkins at 1130. Moreover, Plaintiff must allege “personal
involvement” on the part of each individually-named defendant. See Szabla v. City of Brooklyn
Park, 486 F.3d 385, 397 (8th Cir. 2007) (no respondeat superior liability under § 1983, and no
liability merely because an official employs the individual who allegedly violated the plaintiff's
constitutional rights); Clemmons v. Armontrout, 477 F.3d 962, 967 (8th Cir. 2007) (“[A] warden's
general responsibility for supervising the operations of a prison is insufficient to establish personal
involvement.”); Mark v. Nix, 983 F.2d 138, 139-40 (8th Cir. 1993) (section 1983 liability requires
some personal involvement or responsibility).
Plaintiff states his injuries on January 20, 2007 were sustained from inmates who grew angry
with him when he would not allow them to smoke in his cell. While Plaintiff stated in a grievance
dated January 19, 2007, the previous day, that he feared harm from some inmates, there is nothing
provided by Plaintiff to show the inmates who actually harmed him were the ones he stated he feared
would harm him. Additionally, Plaintiff clearly felt he could stand-up to the inmates who caused him
harm, by telling them they could not smoke in his room. Plaintiff indicated he also sent in additional
grievances, other than the January 20, 2007 grievance, stating he feared harm, but Plaintiff does not
allege he requested protection in those grievances, or that he identified the inmates who ultimately
did cause him harm. There is simply no allegation and no showing the Defendants knew, or should
have known, the January 20, 2007 fight was imminent or that Plaintiff was in any risk of harm from
the inmates who actually caused him harm on January 20, 2007.
Similar analysis must be given to the June 10, 2009 altercation. While Plaintiff stated he had
received threats before this incident, he also stated the inmates who harmed him were not the inmates
who made the threats. Plaintiff had generally alerted Defendant Loy about “trouble” the inmates were
causing in the cell block. Plaintiff states this altercation occurred when he attempted to break up a
fight between his roommate and the other inmates. Plaintiff provides no facts that he was in any way
the target of the altercation, rather the facts allege show that he inserted himself into the incident.
Again, it was not possible for the Defendants to know Plaintiff would put himself in harm’s way by
attempting to break-up the fight, and Plaintiff does not allege that to be the case. Despite Plaintiff’s
warnings about the other inmates causing trouble, those inmates did not come to him and begin an
altercation, rather, Plaintiff placed himself into an ongoing fight with other inmates and was harmed
as a result. Such facts do not rise to the level of a failure to protect claim.
ii. Delay of Medical Care
Plaintiff states that as a result of the January 20, 2007 incident, he was delayed medical care
for over twenty-four hours. He placed a grievance on January 19, 2007, stating he was injured, and
medical records show he was seen in the hospital on January 20, 2007.
The Eighth Amendment's proscription of cruel and unusual punishment obligates prison
officials to provide adequate medical care to inmates in their custody. Estelle v. Gamble, 429 U.S.
97, 102-03 (1976). To succeed with an inadequate medical care claim, a plaintiff must allege and
prove that: (1) he had objectively serious medical needs; and (2) prison officials subjectively knew
of, but deliberately disregarded, those serious medical needs. Dulany v. Carnahan, 132 F.3d 1234,
1239 (8th Cir.1997). Additionally, the Eighth Circuit has held that a “prisoner must show more than
negligence, more even than gross negligence, and mere disagreement with treatment decisions does
not rise to the level of a constitutional violation.” Estate of Rosenberg v. Crandell, 56 F.3d 35, 37
However, “‘Grossly incompetent or inadequate medical care can constitute
deliberate indifference, as can a doctor's decision to take an easier and less efficacious course of
treatment.’” Warren v. Fanning, 950 F.2d 1370, 1373 (8th Cir.1 991) (quoting Smith v. Jenkins, 919
F.2d 90, 93 (8th Cir. 1990)).
Plaintiff is essentially making a claim that his medical care was delayed. However, when an
inmate alleges that a delay in medical care constitutes a constitutional violation, he must allege, and
eventually place in the record, verifying medical evidence establishing the detrimental effect of the
delay. Coleman v. Rahja, 114 F.3d 778, 784 (8th Cir. 1997). Plaintiff did not allege any detrimental
effect of the delay, nor did he indicate that any medical professional had ever told him the delay
caused him any harm. Accordingly, Plaintiff cannot maintain a claim for a constitutional violation due
to inadequate medical care.
iii. Racial Discrimination
Plaintiff has alleged he suffered racial discrimination, specifically from Defendant Newburn.
This discrimination took the forms of being placed on lockdown, denied yard call, delayed food,
having his grievances not be filed, and having other inmates being “coached” to fight him. The Court
also notes that Plaintiff only appears to raise these alleged constitutional wrongs in the context of
being the result of racial discrimination, thus, the Court will not analyze them as separate independent
Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment from
“invidious discrimination based on race.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (citation
omitted). But, only deliberate discrimination is actionable. Personnel Administrator v. Feeney, 442
U.S. 256 (1979); Washington v. Davis, 426 U.S. 229, 239-48 (1976). Thus, a claim of race
discrimination under the Equal Protection Clause requires a showing of discriminatory intent or
purposeful discrimination. Washington, 426 U.S. at 239-40; McCleskey v. Kemp, 481 U.S. 279, 292
(1987). The heart of an equal protection claim is that similarly situated classes of inmates are treated
differently and that this difference in treatment bears no rational relationship to any legitimate penal
interest. Weiler v. Purkett, 137 F.3d 1047, 1051 (8th Cir. 1998) (citing Timm v. Gunter, 917 F.2d
1093, 1103 (8th Cir. 1990).
Here, Plaintiff has not included any facts to support his discrimination claim. He has failed
to identify inmates who were treated more favorably or the race of those inmates; and because he has
not explained how other inmates were similarly situated, he has not stated a claim for racial
discrimination. Moreover, “[p]roof of racially discriminatory intent or purpose is required to show
a violation of the Equal Protection Clause.” City of Cuyahoga Falls v. Buckeye Cmty. Hope Found.,
538 U.S. 188, 194 (2003) (citation and internal quotes omitted). Plaintiff has failed to allege how
any of the alleged actions were based upon a discriminatory intent or purpose.
iv. Denial of Adequate Diet
In this circuit, the Eighth Amendment deliberate indifference standard is applied to all claims
of unconstitutional conditions of confinement whether the individual involved is a pretrial detainee
or a convicted inmate. Butler v. Fletcher, 465 F.3d 340, 345 (8th Cir. 2006). The Eighth
Amendment's prohibition against cruel and unusual punishment is violated if an inmate is not provided
with meals adequate to maintain his health. See e.g., Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir.
1996); Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir. 1992) (prisoners have a right to nutritionally
adequate food); Campbell v. Cauthron, 623 F.2d 503, 508 (8th Cir. 1980) (prisoners are guaranteed
a reasonably adequate diet). To prevail on an Eighth Amendment claim, Plaintiff must show the
Defendants were deliberately indifferent to his dietary needs. Wishon, 978 F.2d at 446.
Merely because the food served is not prepared to an inmate's taste does not implicate the
Eighth Amendment. Rather, the Eighth Amendment is only violated if the food provided is
inadequate to maintain good health. See e.g., Burgin v. Nix, 899 F.2d 733, 734–35 (8th Cir.1990)
(inmates do not have a right to be served a particular type of food).
“The deprivation of food constitutes cruel and unusual punishment only if it denies a prisoner
the ‘minimal civilized measure of life's necessities.’” Talib v. Gilley, 138 F.3d 211, 214 n. 3 (5th Cir.
1998) (expressing doubt that Talib who missed about fifty meals in five months and lost fifteen
pounds met this threshold) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). “Whether the
deprivation of food falls below this threshold depends on the amount and duration of the deprivation.”
Green v. Ferrell, 801 F.2d 765, 770 (5th Cir.1986) (even on a regular permanent basis, two meals
a day may be adequate); see also Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (claim that
inmate missed eight meals properly dismissed as frivolous); Cunningham v. Jones, 667 F.2d 565, 566
(6th Cir. 1982) (Eighth Amendment not violated when inmate served only one meal a day for fifteen
consecutive days where the one meal was sufficient to maintain normal health).
In this case, Plaintiff has failed to show a genuine issue of material fact exists as to whether
his constitutional rights were violated by the diet he was provided while at Clark County. Plaintiff
contends he was provided with a diet that caused him to loose 29 pounds, and included portions
similar to those provided to child in kindergarten. Although Plaintiff denies generally that the diet
was adequate, he has provided nothing other than his vague allegations suggesting that the meals
were nutritionally inadequate, including any allegations of what his meals actually consisted of.
Furthermore, Plaintiff stated in his complaint, which was signed by him on June 16, 2009, that
he weighed 159 pounds at that time. He also agrees that on January 30, 2009, when he was in the
Clark County Jail, a scale was used to accurately weigh him at 172 pounds, and that on August 20,
2009, upon transfer from Clark County to the Arkansas Department of Correction, a scale was used
to accurately weigh him at 163 pounds. Thus, it appears from Plaintiff’s facts he lost approximately
13 pounds from January to June of 2009, and then gained four pounds from June to August of 2009.
Such factors do not establish that Plaintiff’s health was suffering from the Clark County Jail diet, and
he makes no allegations of diminished health. Thus, summary judgment should be granted regarding
his denial of adequate diet claims.
v. Unconstitutional Conditions of Confinement
Plaintiff claims he suffered unconstitutional conditions of confinement due to poor plumbing
of the jail, the presence of black mold, and inadequate cleaning supplies being available. The Supreme
Court has clarified that the “Constitution does not mandate comfortable prisons,” and that only
“extreme deprivations” that deny “the minimal civilized measure of life's necessities are sufficiently
grave to form the basis” of a § 1983 claim. Hudson v. McMillian, 503 U.S. 1, 9 (1992); Rhodes v.
Chapman, 452 U.S. 337, 347-49 (1981). Plaintiff must show that Defendants were deliberately
indifferent, that is, that they knew of, and yet disregarded, an excessive risk of harm to plaintiff's
health and safety. Farmer, 511 U.S. at 827.
First, regarding Plaintiff’s claim of inadequate plumbing, Plaintiff, upon inquiry by the court,
did not respond that he had any injury from the alleged inadequate plumbing. As such, summary
judgement should be granted on his unconstitutional condition of confinement claim regarding
inadequate plumbing. Second, regarding the presence of black mold, upon inquiry by the court to
the harm he suffered, Plaintiff responded that long exposure could produce health risks. Plaintiff has
not alleged or shown how he suffered any health risks or results from the presence of black mold.
Accordingly, summary judgment should be granted on his unconstitutional condition of confinement
claim regarding the presence of black mold. Third and finally, Plaintiff has alleged there were
inadequate cleaning supplies available. However, Plaintiff has failed to identify any harm he suffered
as a result of the allegedly unsanitary cells. See Williams v. Harmon, 2009 WL 1690735 (E.D. Ark.
2009) (holding that plaintiff's failure to give specific facts related to why the cleaning supplies are
inadequate, the condition of his cell, and how he was actually harmed by the alleged denial of
adequate cleaning supplies to be critical flaws in a conditions of confinement claim).
For the forgoing reasons, the Defendants’ Motion for Summary Judgment, ECF No. 31, is
hereby GRANTED in its entirety. The Clerk of Court is hereby also directed to close case no 6:09cv-06068 at the time this order is entered as the cases have been consolidated by order of the Court.
ECF No. 7. A judgment incorporating these findings will be entered pursuant to Federal Rules of
Civil Procedure 52 and 58.
It is FURTHER ORDERED that all writs issued in connection with the bench trial set for
June 20, 2011, ECF Nos. 44, 45, and 46, are hereby WITHDRAWN; the subpoena issued for Chad
Prince, ECF No. 43, is hereby QUASHED; and the bench trial is CANCELLED.
The Clerk of Court is FURTHER DIRECTED to mail a copy of this Order to Chad Prince,
434 Walker Rd., Amity, Arkansas 71921.
IT IS SO ORDERED this 16th day of June 2011.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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