Parker v. Luryd et al
Filing
7
MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 11/28/2016. (cna)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
RICHARD O. PARKER,
Plaintiff.
Civ. No. 16-979-RGA
V.
DEPUTY BUREAU CHIEF WERDAL
LURYD, etal.,
Defendants.
Richard O. Parker, James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se
Plaintiff.
MEMORANDUM OPINION
w
November ^ , 2016
Wilmington, Delaware
ANDREWS, U:(S. District Jut
Plaintiff Richard O. Parker, an inmate at the James T. Vaughn Correctional
Center in Smyrna, Delaware, filed this action pursuant to 42 U.S.C. § 1983. He
appears pro se and has been granted leave to proceed in forma pauperls. (D.I. 5).
The
Court proceeds to review and screen the Complaint (D.I. 3) pursuant to 28 U.S.C.
§ 1915(e)(2)(B) and § 1915A(a).
BACKGROUND
Parker suffers from diabetes, gout, and other medical conditions. He takes
medication, but not insulin. Parker alleges that food is sen/ed cold at various housing
units, that the food is nutritionally inadequate, and that cooks permit food substitution.
Parker alleges that he receives inedible food, constantly receives food in cold diet trays
(for example, oatmeal and cream of wheat that are coagulated, pancakes and french
toast arrive cold so that butter will not spread on them), and food that arrives in large
pans served from a veggie serving cart that is not designed to serve hot food. Parker
alleges that on November 26, 2015, he met with dietitian Gina Ferretti concerning l^is
diet, and that she texted Defendant food service director Christopher Senate outlini ng
specific diet changes. To date, the changes have not been made. Finally, Parker
alleges that he complained to Defendants about his medical diet that Is high in soy
and
that the same diet Is served to the general population. Plaintiff seeks class certlfickion,
punitive damages, and declaratory and injunctive relief.
SCREENING OF COMPLAINT
A federal court may properly dismiss an action sua sponte under the screening
provisions of 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) If "the action is frivolous or
malicious, fails to state a claim upon which relief may be granted, or seeks monetary
relieffrom a defendant who is immune from such relief." Ball v. Famigllo, 726 F.3d f48,
452 (3d Cir. 2013); see also 28 U.S.C. § 1915(e)(2) (in forma pauperisactions); 28
U.S.C. § 1915A (actions in which prisoner seeks redress from a 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 anc
take them in the light most favorable to a pro se plaintiff. Phillips v. County of
Allegheny, 515 F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 93
(2007). Because Plaintiff proceeds pro se, his pleading is liberally construed and hils
complaint, "however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. at 94 (citations
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). Under28 U.S.C. § 1915(e)(2)(B)(i) ^nd
§ 1915A(b)(1), a court may dismiss a complaint as frivolous if it is "based on an
indisputably meritless legal theory" or a "clearly baseless" or "fantastic or delusiona
factual scenario. Neitzke, 490 U.S. at 327-28; Wilson v. Rackmlll, 878 F.2d 772, 774
(3d Cir. 1989).
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. Tourscher v. McCullough, 184 F.3d 236, 240 (3d bir.
1999). However, before dismissing a complaint or claims for failure to state a clainh
upon which relief may be granted pursuant to the screening provisions of 28 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 Hosp., 293
F.3d 103,114 (3d Cir. 2002).
Awell-pleaded complaint must contain more than mere labels and conclusions.
See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell At!. Corp. v. Twombly, 550 U.S. 54^
(2007). A plaintiff must plead facts sufficient to show that a claim has substantive
plausibility. See Johnson v. City ofShelby,
U.S.
, 135 S.Ct. 346, 347 (2014). A.
complaint may not dismissed, however, for imperfect statements ofthe legal theory
supporting the claim asserted. See id. at 346.
Underthe pleading regime established by Twombly and Iqbal, a court reviewing
the sufficiency of a complaint must take three steps: (1) take note ofthe elements 1he
plaintiff must plead to state a claim; (2) identify allegations that, because they are no
more than conclusions, are not entitled to the assumption of truth; and (3) when there
are well-pleaded factual allegations, assume their veracity and then determine whe her
they plausibly give rise to an entitlement to relief. Connelly v. Lane Constr. Corp., 609
F.3d 780, 787 (3d Cir. 2016). Elements are sufficiently alleged when the facts in the
complaint "show" that the plaintiff is entitled to relief. Iqbal, 556 U.S. at 679 (quoting
Fed. R. Civ. P. 8(a)(2)). Deciding whether a claim is plausible will be a "context-specific
task that requires the reviewing court to draw on its judicial experience and commoi
sense." Id.
DISCUSSION
Conditions of Confinement
Parker's claim that food is served cold is construed as an Eighth Amendment
conditions of confinement claim. Conditions of prison confinement violate the Eight
Amendment only ifthey "deprive inmates of the minimal civilized measure of life's
necessities." Rhodes v. Chapman, 452 U.S. 337, 347 (1981); see also Atkinson v.
Taylor, 316 F.3d 257, 272 (3d Cir. 2003). The issue of serving cold food has been
considered and rejected by other courts. The provision of cold food is not, by itself, a
violation of the Eighth Amendment as long as the food is nutritionally adequate and is
"prepared and served under conditions which do not present an immediate danger to
the health and well being of the inmates who consume it." Brown v. Detella, 1995 U.S.
Dist. Lexis 13260, at *8 (N.D. III. Sept. 7, 1995) (citing Ramos v. Lamm, 639 F.2d 559,
571 (10th Cir. 1980)). Thus, "while prisoners are guaranteed a nutritionally adequa
diet under the Eighth Amendment, see Ramos[, 639 F.2d at 571], there is no
constitutional right to hot meals." Laufgas v. Spezlale, 263 F. App'x 192, 198 (3d Cir.
2008) (rejecting claim that prison's failure to provide two hot meals a day constituted a
violation of inmate's constitutional rights; Brown-El v. Delo, 969 F.2d 644, 648 (8th Cir.
1992) (finding frivolous prisoner's claim that his constitutional rights were violated \Ahen
he was served cold food). Parker's claims that the food is nutritionally inadequate and
inedible are pled in a conclusory manner and fail to state claims upon which relief rfiay
be granted.
Accordingly, the Court will dismiss the claims as legally frivolous and for failiire to
state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(i),
(ii) and § 1915A(b)(1). The Court liberally construes the Complaint and finds that
Parker appears to have stated a cognizable claim against Senate for failing to provic
him with a medically necessary diet.
Personal invoivement/Respondeat Superior
Named as defendants are Werdal Luryd, Deputy Bureau Chief - Food Services,
Warden David Pierce, and C. Morris, who is in charge of the kitchen at the VCC, all
supervisory officials. It is well established that claims based solely on the theory of
respondeat superior or supervisor liability are facially deficient. See Iqbal, 556 U.S. bt
676-77; see also Solan v. Ranck, 326 P. App'x 97,100-01 (3d Cir. 2009) (holding tfiat
"[a] defendant in a civil rights action must have personal involvement in the alleged
wrongs; liability cannot be predicated solely on the operation of respondeat superior').
"Personal involvement can be shown through allegations of personal direction or of
actual knowledge and acquiescence." Rode v. Dellarclprete, 845 F.2d 1195,1207 (3d
Cir. 1988). Under the liberal notice pleading standard of Rule 8(a), Parker's complaiit
fails to allege facts that, if proven, would show personal involvement by any named
defendant. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (a civil rights
complaint is adequately pled where it states the conduct, time, place, and persons
responsible).
The Complaint does not allege any direct or personal involvement by Luryd,
Pierce, or Morris. Therefore, the claims will be dismissed. However, since it appear^
plausible that Parker may be able to articulate a claim against Defendants, or name
alternative defendants, he will be given an opportunity to amend his pleading as to th|<
issues of a proper medical diet, inedible food, and nutritionally inadequate food. See
O'Dell V. United States Gov't, 256 F. App'x 444 (3d Cir. 2007) (leave to amend Is proper
where the plaintlfrs claims do not appear "patently meritless and beyond all hope of
redemption").
Class Action
The Complaint contains class action allegations. In order for a courtto certlfy| a
class action the named plaintiff must prove that he meets the requirements of
numeroslty, commonality, typicality, and adequacy of representation. Fed. R. GIv. P
23. The requirements set forth In Rule 23 are In the conjunctive. Therefore, a district
court can only certify a class If all four requirements of Rule 23(a) are met. See In re
Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 309 n.6 (3d CIr. 2008). Because a
four of these elements must be met before a class action may be certified, the failure to
satisfy any single element Is fatal to any effort to characterize this case as a class
action.
A class action can be maintained only If the representative parties will fairly arid
adequately protect the Interests of the class. Fed. R. GIv. P. 23(a)(4). Parker, a pro
se
Inmate litigant, plainly Intends to serve as this class representative. However, he Is
unable to satisfythe adequacy of representation factor because he Iswithout sufFiclelint
legal education. See Krebs v. Rutgers, 797 F. Supp. 1246,1261 (D.N.J. 1992) (denied
class certification where pro se plaintiffs lacked legal education). Pro se litigants are
generally not appropriate as class representatives. See Megan v. Rogers, 570 F.3d
146,159 (3d GIr. 2009). The proposed class action does not meet the threshold
requirement that the representative partywill fairly and adequately protect the Interesjts
of the class and, therefore, the purported class action lawsuit will not be permitted to
proceed forward as such. The Complaintwill proceed solely on Parker's individual
claims.
CONCLUSION
For the above reasons: (1) Parker will be allowed to proceed with his medica
diet claim against Senate; (2) the Court will dismiss all other remaining claims as
frivolous and forfailure to state a claim upon which relief may be granted pursuant tcj) 28
U.S.C. § 1915(e)(2)(B)(i), (ii) and § 1915A(b)(1); (3) the matter will not proceed as a
class action; and (4) Plaintiff will be given leave to amend the medical diet inedible
food, and nutritionally Inadequate food claims.
An appropriate order will be entered.
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