PHELPS v. DUNCAN et al.

Filing 11

ORDER ON 9 REPORT AND RECOMMENDATION. Signed by William Terrell Hodges on 1/8/2018. The Magistrate Judge's Report and Recommendation is rejected in part and adopted in part. The plaintiff's claim under the Fourteenth Amendment is dismissed pursuant 28 U.S.C. § 1915(e) (2)(B). Plaintiff's Eighth Amendment claim shall be allowed to proceed, and this matter is remanded for further proceedings before the Magistrate Judge. (kdm)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
RODNEY LEE PHELPS,
Plaintiff,
v.

CASE NO. 5:16-cv-00072-WTH-CJK

DIANA DUNCAN, B WELCH, RAYMOND WOOD,
Defendants.
_____________________________/
ORDER ON REPORT AND RECOMMENDATION
This cause comes on for consideration upon the Magistrate Judge's Report
and Recommendation dated September 5, 2017. (ECF No. 9). The parties have
been furnished a copy of the Report and Recommendation and have been afforded
an opportunity to file objections pursuant to Title 28, United States Code, Section
636(b)(1). Plaintiff has filed objections at ECF No. 10. I have made a de novo
review based on those objections. Having considered the Report and
Recommendation, and the timely filed objections, I have determined that the
Report and Recommendation should be adopted in part and rejected in part.
According to his amended complaint, plaintiff is a prisoner who worked in
the prison kitchen pouring boiling hot water from a “tilt kettle” into powdered milk

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and coffee. In his complaint, he alleged that he discovered that the large floor
drains under the tilt kettle were missing their grate covers:

He alleged that he immediately told his direct supervisors about the dangerous
situation. They both allegedly told plaintiff to be careful but also threatened to
send him to confinement if he did not continue to work without the drain being
covered with a grate:

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Plaintiff also alleged that the other defendant, Diana Duncan, was personally
aware of the dangerous condition caused by the lack of a cover on the floor drain,
having been told of it by plaintiff and other inmates. She, too, directed plaintiff to
be careful but also to work without the drain cover or go to confinement:

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He alleged that when he returned to work he awkwardly tried to use the tilt
kettle while also trying to avoid slipping into the inches-deep drain. Eventually,
his foot slipped into the drain, which caused him to lose control of the tilt kettle.
The tilt kettle drained down onto his foot, which he described as “engulfed” in
boiling water. He also spilled the pot into which he was pouring the boiling liquid.
That liquid also found its way onto plaintiff’s foot. He received first, second and
third-degree burns.
He filed suit, claiming that making him work under such unsafe conditions
constituted cruel and unusual punishment in violation of the Eighth Amendment,
and deprived him of a liberty interest without due process in violation of the

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Fourteenth Amendment. The Magistrate Judge recommended dismissing the
Eighth Amendment claim with the following language:
Here, plaintiff has not come close to describing a condition that was
sufficiently serious to violate the Eighth Amendment. Plaintiff
acknowledges Duncan reported the absence of drain covers to the
maintenance department and instructed him to be careful. He also
acknowledges Welch and Wood told him to be careful. At most, plaintiff has
alleged facts from which one could conclude the defendants were negligent;
negligence, however, is not actionable under § 1983. Williams v. Bennett,
689 F.2d 1370, 1380 (11th Cir. 1982). Indeed, the Supreme Court has made
it clear that “Eighth Amendment liability requires more than ordinary lack of
due care for the prisoner’s interests or safety.” Farmer, 511 U.S. at 835
(internal marks omitted). In other words, “[t]he Eighth Amendment does not
outlaw cruel and unusual ‘conditions’; it outlaws cruel and unusual
‘punishments.’” Id. at 837. Hence, “an official’s failure to alleviate a
significant risk that he should have perceived but did not, while no cause for
commendation, cannot under our cases be condemned as the infliction of
punishment.” Id. at 838. Even construed in the light most favorable to
plaintiff, his allegations do not rise to the level of an Eighth Amendment
violation.
The Magistrate Judge therefore considered this case as involving mere negligence
and “a significant risk that [defendants] should have perceived but did not.” Here,
however, plaintiff alleges that the defendants were repeatedly told by plaintiff and
others about the risk. They perceived the risk but consciously chose to force
plaintiff to continue working despite the risk.
The Eighth Amendment's proscription against cruel and unusual punishment
prohibits prison officials from exhibiting deliberate indifference to a substantial
risk of serious harm to an inmate. See Farmer v. Brennan, 511 U.S. 825, 828, 114

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S.Ct. 1970, 128 L.Ed.2d 811 (1994). To state a claim on a § 1983 Eighth
Amendment claim about prison conditions, a plaintiff must sufficiently plead “(1)
a substantial risk of serious harm; (2) the defendants' deliberate indifference to that
risk; and (3) causation.” Hale v. Tallapoosa Cnty., 50 F.3d 1579, 1582 (11th
Cir.1995). Deliberate indifference on the part of a prison official requires a
showing of: “(1) subjective knowledge of a risk of serious harm, (2) disregard of
that risk, (3) by conduct that is more than gross negligence.” Thomas v. Bryant,
614 F.3d 1288, 1312 (11th Cir.2010); Jinks v. Owens, 517 F. App'x 913, 915 (11th
Cir. 2013). The defendants must “both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists” and “also draw the
inference.” Farmer, 511 U.S. at 837, 114 S.Ct. at 1979. The defendants may
escape liability for known risks “if they responded reasonably to the risk, even if
the harm ultimately was not averted.” Moore v. Faurquire, 595 F. App'x 968, 973
(11th Cir. 2014), citing Farmer, 511 U.S. at 844.
Here, plaintiff alleges that each of the defendants knew of the risk of
plaintiff pouring boiling hot water while trying to avoid slipping into an inchesdeep floor drain that was under his feet while he worked. The only response to the
known risk by the two direct supervisors was to tell the plaintiff to be careful. But,
when plaintiff persisted and informed them he did not think he could avoid
slipping into the drain while doing his job, they compelled him to work anyway,

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threatening him with confinement, according to plaintiff’s allegations. The Food
Services Director also responded by telling plaintiff to be careful, and by stating
she had informed the maintenance department. She also allegedly threatened
plaintiff with confinement if he did not continue working.
Requiring plaintiff to work despite such known risks might rise to a level
beyond gross negligence. That is, as the Eighth Circuit stated in Ray v. Mabry, 556
F.2d 881, 882 (8th Cir. 1977), “there are circumstances in which prison work
requirements can constitute cruel and unusual punishment.” The Eighth Circuit
then quoted Talley v. Stephens, 247 F.Supp. 683, 687 (E.D. Ark. 1965):
(F)or prison officials knowingly to compel convicts to perform physical
labor which is beyond their strength, or which constitutes a danger to their
lives or health, or which is unduly painful constitutes an infliction of cruel
and unusual punishment prohibited by the Eight Amendment to the
Constitution of the United States as included in the 14th Amendment.
Plaintiff here has alleged more than a mere slippery, wet floor like that in Harvey
v. Plowman, No. 3:11CV437/MCR/CJK, 2012 WL 6135818, at *3 (N.D. Fla. Nov.
7, 2012), report and recommendation adopted, No. 3:11CV437/MCR/CJK, 2012
WL 6138339 (N.D. Fla. Dec. 11, 2012). He alleges that he was required to try to
work with boiling liquids in a tilt kettle while trying to avoid slipping into an open
drain under his feet that was several inches deep, several feet long and several feet
wide. Plaintiff has adequately plead enough to be given the chance to prove that
the conditions under which he was forced to work were sufficiently serious to

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satisfy the “objective component” of the test from Chandler v. Crosby, 379 F.3d
1278 (11th Cir.2004), and a chance to satisfy Chandler’s “subjective component”
by proving that the defendants knew of the risk and that their conduct was more
than gross negligence. Thus, the Court declines to dismiss the Eighth Amendment
claim under 28 U.S.C. § 1915(e)(2)(B).
Also, while the Court agrees that Director Duncan cannot be held
vicariously liable for the acts of her subordinates, plaintiff alleges more than just
vicarious liability regarding her. Instead, he alleges that he and other inmates
personally informed her about the dangerous condition and that she personally
directed him to work under those conditions anyway. This is the type of personal
control or direction required under Monell v. Dep’t of Soc. Servs., 436 658, 694 n.
58 (1979). Thus, the part of the Report and Recommendation that would dismiss
the claims against Director Duncan is rejected.
On the other hand, the Court agrees with the Magistrate Judge that plaintiff’s
allegations do not fit a Fourteenth Amendment claim. Plaintiff has not alleged that
officials altered his term of imprisonment. He also has not alleged that officials
imposed an atypical or significant hardship on him in any way other than the
conduct already covered by his Eighth Amendment claim. Thus, any relief he
would be entitled to from the Fourteenth Amendment claim would already be

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available if he succeeded with his Eighth Amendment claim. To prevent confusion
or multiplication of the issues, the Court agrees that the Fourteenth Amendment
claim should be dismissed.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. The Magistrate Judge’s Report and Recommendation is rejected in part
and adopted in part.
2. The plaintiff’s claim under the Fourteenth Amendment is dismissed
pursuant 28 U.S.C. § 1915(e)(2)(B).
3. Plaintiff’s Eighth Amendment claim shall be allowed to proceed, and this
matter is remanded for further proceedings before the Magistrate Judge.
DONE AND ORDERED this 8th day of January, 2018.