Gordon v. Gill et al

Filing 9

MEMORANDUM OPINION - Signed by Judge Leonard P. Stark on 8/6/12. (rwc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
THOMAS GORDON,
Plaintiff,
v.

Civ. No. 11-1029-LPS

SGT. GEORGE GILL, et al.,
Defendants.

Thomas Gordon, James T. Vaughn Correctional Center, Smyrna, Delaware, ProSe Plaintiff.

MEMORANDUM OPINION

August 6, 2012
Wilmington, Delaware

I.

INTRODUCTION
Plaintiff Thomas Gordon ("Plaintiff'), filed this action pursuant to 42 U.S.C. § 1983

alleging violations of his constitutional rights. 1 Plaintiff is incarcerated at the James T. Vaughn
Correctional Center ("VCC") in Smyrna, Delaware. He appears pro se and has been granted leave
to proceed in forma pauperis. (D.I. 5) The Court proceeds to review and screen the Complaint
pursuant to 28 U.S.C. § 1915 and§ 1915A.

II.

BACKGROUND 2
Plaintiff filed his Complaint (D.I. 3) on October 26, 2011, followed by an Amended

Complaint (D.I. 8) on July 6, 2012. The Amended Complaint is the operative pleading
According to the Amended Complaint, Plaintiff and Defendant Sgt. George Gill ("Gill")
had an exchange of words on September 11, 2011. Plaintiff wrote a letter of complaint followed
by a grievance and, the next morning, there was a shakedown of his cell by Gill and Defendant C/0
Michael Deppe ("Deppe"). Gill told Deppe to crack the flap of Plaintiff's cell and Gill sprayed an
entire can of cap stun into Plaintiff's cell and face. Deppe then closed the flap.
Next, it is alleged that Gill and Deppe submitted a false write-up against Plaintiff, resulting
in his placement in twenty-four hour restraints in isolation and on an alternative meal plan (i.e.,
nutra-loaf). On September 16, 2011, after the hearing officer spoke to his witnesses, Plaintiff was

'Pursuant to 42 U.S.C. § 1983, a plaintiff must allege that some person has deprived him of
a federal right, and that the person who caused the deprivation acted under color of state law. See
West v. Atkins, 487 U.S. 42,48 (1988).
2

The recitation of facts herein is based on taking Plaintiff's allegations as true, as the Court
must do at this stage.

1

found "not guilty" of all offenses. Regardless, Plaintiff remained on the nutra-loaf diet - even
though Defendant Major Scarborough ("Scarborough") received an email to remove him from the
diet.
Plaintiff was on the nutra-loaf diet for a total of seven days. When he was not removed
from the nutra-loaf diet after the "not guilty" finding, Plaintiff protested and went on a hunger and
thirst strike. He lost fifteen pounds during the strike. Plaintiff seeks compensatory and punitive
damages, as well as any other relief the Court deems appropriate.

III.

LEGAL STANDARDS

This Court must dismiss, at the earliest practicable time, certain in forma pauperis and
prisoner actions that are frivolous, malicious, fail to state a claim, or seek monetary relief from a
defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2) (in forma pauperis
actions); 28 U.S.C. § 1915A (actions in which prisoner seeks redress from governmental
defendant); 42 U.S.C. § 1997e (prisoner actions brought with respect to prison conditions). The
Court must accept all factual allegations in a complaint as true and take them in the light most
favorable to a prose plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93 (2007); Phillips v. County
ofAllegheny, 515 F .3d 224, 229 (3d Cir. 2008). Because Plaintiff proceeds pro se, his pleading is
liberally construed and his Complaint, "however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers." Erickson, 551 U.S. at 94 (internal quotation
marks omitted).
An action is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v.
Williams, 490 U.S. 319,325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i) and§ 1915A(b)(l), a
court may dismiss a complaint as frivolous if it is "based on an indisputably meritless legal theory"
2

or a "clearly baseless" or "fantastic or delusional" factual scenario. Neitzke, 490 at 327-28; see

also Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989); Deutsch v. United States, 67 F.3d 1080,
1091-92 (3d Cir. 1995) (holding frivolous a suit alleging that prison officials took inmate's pen and
refused to give it back).
The legal standard for dismissing a complaint for failure to state a claim pursuant to
§ 1915(e)(2)(B)(ii) and § 1915A(b)(1) is identical to the legal standard used when ruling on Rule
12(b)(6) motions. See Tourscher v. McCullough, 184 F.3d 236,240 (3d Cir. 1999). However,
before dismissing a complaint or claims for failure to state a claim upon which relief may be
granted pursuant to the screening provisions of28 U.S.C. §§ 1915 and 1915A, the Court must
grant Plaintiff leave to amend his complaint, unless amendment would be inequitable or futile. See

Grayson v. Mayview State Hasp., 293 F.3d 103, 114 (3d Cir. 2002).
A well-pleaded complaint must contain more than mere labels and conclusions. See

Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). When
determining whether dismissal is appropriate, the Court conducts a two-part analysis. See Fowler

v. UPMC Shadyside, 578 F.3d 203,210 (3d Cir. 2009). First, the factual and legal elements of a
claim are separated. See id. The Court must accept all of the complaint's well-pleaded facts as
true, but may disregard any legal conclusions. See id. at 210-11. The assumption of truth is
inapplicable to legal conclusions or to "[t]hreadbare recitals of the elements of a cause of action
supported by mere conclusory statements." Iqbal, 556 U.S. at 678. Second, the Court must
determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a
"plausible claim for relief." Fowler, 578 F.3d at 211. In other words, the complaint must do more
than allege the plaintiffs entitlement to relief; rather, it must "show" such an entitlement with its
3

facts. !d. A claim is facially plausible when its factual content allows the Court to draw a
reasonable inference that the defendant is liable for the misconduct alleged. See Iqbal, 556 U.S. at
678. The plausibility standard "asks for more than a sheer possibility that a defendant has acted
unlawfully." !d. "Where a complaint pleads facts that are 'merely consistent with' a defendant's
liability, it 'stops short of the line between possibility and plausibility of 'entitlement to relief."'

!d. (quoting Twombly, 550 U.S. at 570).
IV.

DISCUSSION
A.

Conditions of Confinement

Plaintiff complains that he was placed on a nutra-loaf diet for seven days. In protest, he
went on a hunger and thirst strike and lost fifteen pounds.
A condition of confinement violates the Eighth Amendment only if it is so reprehensible as
to be deemed inhumane under contemporary standards or such that it deprives an inmate of
minimal civilized measure ofthe necessities of life. See Hudson v. McMillian, 503 U.S. 1, 8
(1992); Wilson v. Seiter, 501 U.S. 294,298 (1991). When an Eighth Amendment claim is brought
against a prison official, it must meet two requirements: (1) the deprivation alleged must be,
objectively, sufficiently serious; and (2) the prison official must have been deliberately indifferent
to the inmate's health or safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). Deliberate
indifference is a subjective standard in that the prison official must actually have known or been
aware of the excessive risk to inmate safety. See Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d
Cir. 2001).
Prisoners must receive adequate nutrition to maintain normal health; the food need not be
tasty or aesthetically pleasing. See Cunningham v. Jones, 567 F.2d 653, 659-60 (6th Cir. 1977). A
4

food loaf diet does not violate the Eighth Amendment because nutritional and caloric requirements
are met. See, e.g., Ostrander v. Trippett, 71 F. App'x 565, 566 (6th Cir. Aug. 11, 2003) (not
published); see also LeMaire v. Maas, 12 F.3d 1444, 1456 (9th Cir. 1993) (providing nutra-loaf, a
nutritionally adequate blend of fresh ingredients designed to be given to inmates without eating
utensils, is not deprivation serious enough to violate Eighth Amendment).
Plaintiff does not allege that the nutra-loaf diet, which he was on for seven days, caused
him weight loss. Rather, he states that, to protest the continuation of the diet after he was found
"not guilty" of disciplinary charges, he went on a hunger and thirst strike that resulted in weight
loss. See Adams v. Kincheloe, 743 F.Supp. 1385, 1391 (E.D. Wash. 1990) (placing inmate on
disciplinary five-day diet of"nutra-loaf' did not violate Eighth Amendment, especially since
inmate did not suffer from any weight loss or medical conditions).
The nutra-loaf diet claim is frivolous. The Court will dismiss the claim raised against
Scarborough pursuant to 28 U.S.C. § 1915(e)(2)(B) and§ 1915A(b)(1).
B.

False Disciplinary Report

As to Plaintiff's claim that Gill and Deppe filed a false disciplinary charge followed by a
day in isolation, this, without more, did not violate Plaintiff's constitutional rights under the Due
Process Clause. See Smith v. Mensinger, 293 F.3d 641, 653-54 (3d Cir. 2002). Plaintiff's due
process rights are triggered by a deprivation of a legally cognizable liberty interest. For a prisoner,
such a deprivation occurs when the prison "imposes atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472,484 (1995).
Lesser restraints on an inmate's freedom are deemed to fall "within the expected parameters of the
sentence imposed by a court oflaw." !d. Thus, "[a]s long as the conditions or degree of
5

confinement to which the prisoner is subjected is within the sentence imposed upon him and is not
otherwise violative of the Constitution, the Due Process Clause does not in itself subject an
inmate's treatment by prison authorities to judicial oversight." Jd. at 480 (internal quotation marks
omitted).
Segregation for a period of 10 days and reclassification to a higher security level have been
found to fall within the expected parameters of the sentence imposed by a court oflaw. See id. at
485; Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir. 1997) (stating prisoner's confinement in
administrative segregation for fifteen months did not impose atypical and significant hardship).
Here, Plaintiff's one day in isolation, even if the result of false disciplinary actions, did not trigger
the protections ofthe Due Process Clause.
In addition, because Plaintiff because had a procedural opportunity to address his assertion
that the misconduct report was false, the claim fails. See Smith, 293 F.3d at 654 (stating as long as
procedural requirements are satisfied, mere allegations of falsified evidence or misconduct reports,
without more, are not enough to state due process claim). Indeed, Plaintiff appeared at a hearing
and was found "not guilty."
For the above reasons, the claim will be dismissed as frivolous pursuant to 28 U.S.C.
§ 1915(e)(2)(B) and§ 1915A(b)(l).

V.

CONCLUSION
For the above reasons, the Court will dismiss the claims against Major Scarborough and

will dismiss the false disciplinary claims as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b)(I). Amendment would be futile. Plaintiff will be allowed to proceed against Gill and
Deppe on his Eighth Amendment excessive force/failure to protect claims.

6

An appropriate Order follows.

7