Gordon et al v. Wilcher et al

Filing 3

ORDERED that plaintiff's must respond to this Order within twenty one days after it is served upon them, otherwise risk dismissal on abandonment grounds. Signed by Magistrate Judge G. R. Smith on 9/27/2016. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
RONNIE GORDON, et al. ,
Plaintiffs,
v.
Case No. CV416-00252
JOHN T. WILCHER, et al.
Defendants.

ORDER
Proceeding pro se and in forma pauperis (IFP), Ronnie Gordon and
55 of his fellow inmates bring this 42 U.S.C. § 1983 action against the
county prison administrator, sheriff, sheriff’s office, an officer at the
prison where they are incarcerated, and “J. Walter.”

I. BACKGROUND
Plaintiffs are incarcerated at Chatham County Detention Center
(CCDC). They allege that one inmate, Zicron McKinney, found a live
maggot in his meal on September 6, 2016, and after the food was taken
back to the kitchen, other inmates continued to be served from the same
(presumably maggot-contaminated) pots. Defendant Cpl. Bryant was on
duty but had left his post without authorization and was thus

unavailable to help immediately address the matter.
Plaintiffs also complain about the generally un-hygienic conditions
of the kitchen coolers, which “are nasty with black tar looking stuff
around the groove[s].” They allege that these conditions are “cruel and
unusual” and violate their due process rights, and they seek “declaratory
and injunctive relief” as well as compensatory and punitive damages and
costs of suit.

II. PLAINTIFFS MAY NOT PROCEED TOGETHER IN FORMA
PAUPERIS
Because the plain language of the Prison Reform Litigation Act
(PLRA) requires that each prisoner proceeding in forma papueris (IFP)
pay the full filing fee, in a multi-plaintiff action each individual prisonerplaintiff must pay to play or face dismissal. Hubbard v. Haley , 262 F.3d
1194, 1198 (11th Cir. 2001) (“the PLRA clearly and unambiguously
requires that ‘if a prisoner brings a civil action or files an appeal [IFP],
the prisoner shall be required to pay the full amount of the filing fee’”)).
This “modest monetary outlay” forces prisoners to “think twice about
the case and not just file reflexively.”

Id. at 1198 (quoting 141 Cong.

Rec. S7526 (daily ed. May 25, 1005) (statement of Sen. Kyl)).
Plaintiffs are in a similar position to those in Hubbard. Allowing
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them to proceed IFP together would, presumably, permit them to divide
the filing fee among themselves and defy the PLRA’s mandate that each
prisoner pay the full filing fee. Id. at 1197; see 28 U.S.C. § 1915(b)(1). As
incarcerated prisoners, plaintiffs must abide the PLRA’s requirements by
being solely responsible for their own filing fees, if they wish to proceed
either in an individual action or together with co-plaintiffs 1 in this
action. 2
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Plaintiffs are cautioned that Ronnie Gordon, lead plaintiff in the case, cannot
represent his fellow inmates in a class action without the assistance of counsel. See
Massimo v. Henderson , 468 F.2d 1209, 1210 (5th Cir. 1972) (affirming dismissal of
portion of prisoner’s complaint seeking relief on behalf of fellow inmates); Wallace v.
Smith , 145 F. App’x 300, 302 (11th Cir. 2005) ( per curiam) (affirming district court’s
dismissal of a class action brought by a pro se litigant proceeding IFP).
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Plaintiffs are further cautioned that, even if they timely submit the required
forms, their complaint may not survive screening under 28 U.S.C.§ 1915A. Even
taking their allegations as true, the alleged maggot incident was not objectively,
sufficiently serious to constitute a violation of the Eighth Amendment, and they have
failed to allege a violation of the Fourteenth Amendment.
To prevail on their Eighth Amendment claim, plaintiffs must show that the
condition of their confinement -- i.e. , their food -- “posed an unreasonable risk of
serious damage to [their] future health.” See Chandler v. Crosby , 379 F.3d 1278,
1289 (11th Cir. 2004). The allegation that a maggot was found in someone’s meal, on
its own, cannot meet plaintiffs’ burden of objectively proving that the incident posed
an unreasonable risk of serious damage to their future health. Even liberally
construing their complaint, plaintiffs proffer no evidence that any inmate suffered an
injury as a result of the incident, much less suggest a risk to their future health.
Isolated incidents like this are rarely serious enough to constitute a violation of
the Eighth Amendment. See, e.g., Watkins v. Trinity Serv. Group Inc. , 2006 U.S.
Dist. LEXIS 85592 (M.D. Fla. Nov. 27, 2006) (isolated food poison and maggot
incident were not sufficiently serious deprivations to violate prisoner’s constitutional
rights, as physical injuries of diarrhea vomiting, cramps, and nausea were considered
de minimis ); Bennett v. Misner , 2004 WL 2091473 *20 (D. Or., Sept. 17, 2004)
(“Neither isolated instances of food poisoning, temporary lapses in sanitary food

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service, nor service of meals contaminated with maggots are sufficiently serious to
constitute an Eighth Amendment violation”); Islam v. Jackson , 782 F. Supp. 1111,
1114 (E.D. Va. 1992) (an isolated two week period of food contamination, including
food infested with maggots, not sufficiently serious); George v. King , 837 F.2d 705,
707 (5th Cir. 1988) (a single incident of prisoner food poisoning is not a constitutional
violation). Because the alleged maggot incident was a single, isolated event, it was
simply not a sufficiently serious deprivation to violate plaintiffs’ constitutional rights.
Plaintiffs’ allegation that the kitchen coolers are unclean also fails to rise to the
level of a constitutional violation. Courts have consistently ruled that the lack of
sanitation in certain prison kitchen and food areas, while “appalling” and a risk
factor for “contracting any number of food-borne diseases,” does not in and of itself
amount to an Eighth Amendment violation. See Grubbs v. Bradley , 552 F. Supp.
1052, 1128 (D. Tenn. 1982) (presence of vermin alone did not amount to a
constitutional violation); Bennett , 2004 WL 2091473 at *20.
Moreover, plaintiffs have not shown that defendants acted with deliberate
indifference. To show that defendants were acting with deliberate indifference
requires a showing that they knew of, and disregarded, an excessive risk to the
prisoners’ health or safety. See Farmer v. Brennan , 511 U.S. 825, 837 (1994); see also
Lamarca v. Turner , 995 F.2d 1526, 1536 (11th Cir. 1993) (to demonstrate an official’s
deliberate indifference, the prisoner must prove that the official possessed knowledge
of the condition and the means to cure that condition).
Plaintiffs do not assert that the jail staff acted with deliberate indifference when
the maggots were discovered. On the contrary, their allegations demonstrate
deliberate concern for the nutritional and medical needs of the inmates. Plaintiffs
allege that wing officer Faison “did all that she could do to resolve the matter,” but
that defendant Cpl. Bryant was not available to assist her. Doc. 1 at 3. Then, the
contaminated tray of food “was taken out and replaced with pack-outs” and more
food was brought out. Id. It is unclear how one officer’s unavailability to help
Officer Faison take immediate action to remedy the situation could possibly mean
that defendants were indifferent to the situation.
Plaintiffs’ complaint contains no allegations that defendants failed to feed them,
or that defendants fed them nutritionally inadequate food, other than the single,
isolated instance on September 6, 2016. Therefore, the complaint fails to establish
that defendants acted with sufficient culpability, and the court must dismiss
plaintiffs’ complaint. See Islam , 782 F. Supp. at 1115.
Finally, Plaintiffs cannot base a Fourteenth Amendment claim on an alleged
violation of their Eighth Amendment rights because any harm was de minimis , and
(as discussed above) defendants did not act with deliberate indifference. To the
extent their Fourteenth Amendment claim is based on defendants’ failure to respond
to their food-related grievance -- and even assuming defendants did not properly
respond to their grievance -- plaintiffs cannot seek redress under the Fourteenth

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III. CONCLUSION
Plaintiffs cannot proceed jointly without each being individually
responsible for their own filing fee. The PLRA, Pub. L. No. 104-134, 110
Stat. 1321, enacted requires all prisoners, even those who are allowed to
proceed in forma pauperis , to pay the full filing fee of $350.00. 28 U.S.C.
§ 1915(b)(1). Prisoner litigants allowed to proceed in forma pauperis
must pay an initial partial filing fee of 20 percent of the greater of the
average monthly deposits to, or average monthly balance in, the
prisoner’s account for the 6-month period immediately preceding the
filing of the complaint. Prison officials are then required to collect the
balance of the filing fee by deducting 20 percent of the preceding month’s
income credited to the prisoner’s account. 28 U.S.C. § 1915(b)(2). This
payment shall be forwarded to the Clerk of Court “each time the amount
in plaintiff’s account exceeds $10 until the full filing fees are paid.” Id .
The entire filing fee must be paid even if the suit is dismissed at the
outset because it is frivolous, malicious, fails to state a claim, or seeks
monetary damages against a defendant who is immune from such relief.

Amendment. See Crenshaw v. Lister , 2005 WL 1027326 at *3 (M.D. Fla. Mar. 29,
2005) (prison official’s failure to process a prisoner’s grievances does not give rise to a
due process violation).

In addition to requiring payment of the full filing fee, the Act now
requires prisoners to exhaust all administrative remedies before
challenging “prison conditions” in a civil action. 42 U.S.C. § 1997e; see
18 U.S.C. § 3626(g)(2). All prisoner civil rights actions filed after April
26, 1996 are subject to dismissal if the prisoner has not exhausted the
available administrative remedies with respect to each claim asserted.
Moreover, even if the complaint is dismissed for failure to exhaust, the
prisoner will still be responsible for payment of the full filing fee.
The law also provides that prisoners cannot bring a new civil action
or appeal a judgment in a civil action in forma pauperis if the prisoner
has on three or more prior occasions, while incarcerated, brought a civil
action or appeal in federal court that was dismissed because it was
frivolous, malicious, or failed to state a claim upon which relief may be
granted. The only exception to this “three strikes” rule is if the prisoner
is in “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
Because of these changes in the law, the Court will give plaintiffs
an opportunity, individually, to voluntarily dismiss the complaint
pursuant to Fed. R. Civ. P. 41(a)(1). Such a voluntary dismissal will not
require plaintiffs to pay their individual filing fee or count as a dismissal

It

which may later subject plaintiffs to the three-dismissal rule under
§ 1915(g). They must respond with this Order within 21 days after it is
served upon them, otherwise risk dismissal on abandonment grounds.
Should any or all insist on continuing this lawsuit, the Court will furnish
each of them with a form § 1983 Complaint and mandatory IFP forms.

SO ORDERED , this 27th day of September, 2016.

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UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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