Triplett v. Banks et al

Filing 11

MEMORANDUM OPINION AND ORDER OF PARTIAL DISMISSAL: Ordered that the claims against Defendants Laura Tilley, Gia McLeod and Joseph Cooley are dismissed with prejudice; and Ordered that the claims against Defendants Valley Foods, Aramark, and CGL, a Hunt Company, are dismissed with prejudice as frivolous and for failure to state a claim against them upon which relief could be granted. The remainder of the case shall proceed on the lighting, sanitation, accessibility, medical charges and treatment, and food shortage claims. Joseph Cooley (Investigator), Valley Foods, Gia McLeod (ZLAP Director), Laura Tilley (ZLAP Director), Aramark and CGL (a Hunt Company) terminated. Signed by Chief District Judge Louis Guirola, Jr. on 8/2/17. (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
ROBERT WARREN TRIPLETT, JR.,
# 126566
v.

PLAINTIFF
CAUSE NO. 1:17CV65-LG-RHW

JACQUELINE BANKS, MARSHALL
TURNER, FAYTONIA JOHNSON,
LAURA TILLEY, GIA MCLEOD,
JOSEPH COOLEY, RONALD
WOODALL, NURSE HARDY, JOY
ROSS, CAPTAIN R. EVANS,
CAPTAIN S. EVANS, CAPTAIN
COOLEY, CAPTAIN DAVIS,
LIEUTENANT CAUSEY,
LIEUTENANT TAYLOR, VALLEY
FOODS, ARAMARK, JOHN DOES,
CGL, A HUNT COMPANY, DR. C.
MCCLEAVE, and NURSE
PRACTITIONER G. WOODLAND

DEFENDANTS

MEMORANDUM OPINION AND ORDER OF PARTIAL DISMISSAL
This case is before the Court sua sponte. Pro se Plaintiff Robert Warren
Triplett, Jr., is incarcerated with the Mississippi Department of Corrections
(“MDOC”), and he challenges the conditions of his confinement. The Court has
considered and liberally construed the pleadings. As set forth below, Defendants
Laura Tilley, Gia McLeod, Joseph Cooley, Valley Foods, Aramark, and CGL, a Hunt
Company, are dismissed.
FACTS AND PROCEDURAL HISTORY
Triplett is housed at the South Mississippi Correctional Institution

(“SMCI”). The twenty Defendants are all either employed or contracted by MDOC.
Defendant Jacqueline Banks is the Superintendent of SMCI, and Defendant
Marshall Turner is the Warden. Defendants Faytonia Johnson, Joy Ross, Captain
R. Evans, Captain S. Evans, Captain Cooley, Captain Davis, Lieutenant Causey,
and Lieutenant Taylor are all correctional officers there. Defendant Laura Tilley
works in the prison’s law library, and Defendant Gia McLeod is the director of
MDOC’s Inmate Legal Assistance Program. Defendant Joseph Cooley works for
the prison’s Administrative Remedy Program (“ARP”). Defendants Ronald Woodall
and Dr. C. McCleave are doctors at SMCI, and Defendants Nurse Hardy and Nurse
Practitioner G. Woodland work as nurses there. Defendants Valley Foods and
Aramark are, respectively, the former and current food vendors for MDOC.
Finally, Defendant CGL, a Hunt Company, is alleged to be the maintenance
contractor for SMCI.
Triplett’s complaints include lighting, sanitation, and handicap accessibility
issues in his housing zone. He also attempts to assert claims concerning the
handling of his inmate bank account, the handling of his grievances, medical care;
and the amount of food he is being served.
As for the conditions on Triplett’s housing zone, he first alleges that the
lighting is so insufficient that it causes difficulty in seeing and doing his legal work
and makes him depressed. Triplett accuses Banks and Warden Turner of being
deliberately indifferent to the lighting issue.
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Triplett next claims that, since October of 2015, there have been frequent
sewage leaks from two of the toilets, coupled with the fact that the drain in the floor
is allegedly stopped up. This, he contends causes the sewage to puddle on the floor
and be tracked all over the zone. He allegedly reported the issue to Banks, Warden
Turner, and Johnson. The issue was turned over to the maintenance contractor,
and CGL allegedly attempted repairs to the wax seals under the toilets. The
repairs, Triplett contends, have not fixed the issue, which “should have been readily
apparent to” Banks, Turner, and Johnson. (Compl. at 14). Triplett claims that
Johnson allowed him to write the local CGL supervisor to give a repair procedure
that Triplett believes will address the problem, but after the supervisor received it,
“nothing has been done.” Id.
Relatedly, Triplett alleges that there is only one handicap accessible toilet on
the zone, which houses 100 inmates. He admits there is no one on the zone who
needs a wheelchair; however, he contends that he needs the handicap accessible
toilet when his knees become “especially troublesome.” Id. at 13. Triplett accuses
Banks and Johnson of being deliberately indifferent to this situation.
Besides the issues on Triplett’s particular housing zone, he also complains
about the manner in which his inmate bank account is being handled. Specifically,
he accuses Tilley and McLeod of overcharging him for legal postage, which
overcharge is “not in accordance with . . . MDOC . . . policies . . . and then failing to
address these instances when and [sic] Administrative Remedy Procedure was
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submitted.” (Resp. at 1). Triplett also complains that Dr. Woodall charged him
for chronic care eye appointments, allegedly in contravention of MDOC policy.
Triplett further takes issue with the fact that Dr. Woodall handled both the First
and Second Steps of the ARP that challenged these medical charges. Triplett
claims that there are probably more charges he could dispute but for missing
inmate account statements.
As with Tilley, McLeod, and Woodall, Triplett faults Joseph Cooley for the
way Triplett’s ARP grievances were handled. Cooley is accused of losing some of
the grievances, failing to both process the grievances and forward the responses “in
an expedient manner,” backlogging Triplett’s grievances, and sending the grievance
to the same person to hear the First and Second Steps. Id. at 1-2.
Next, Triplett complains about his medical care for his sinuses and a skin
condition. He alleges that Nurse Hardy denied him treatment for a sinus condition
and that this failure was caused by Dr. Woodall’s failure to train the nurses that
they, too, were allowed to provide symptomatic relief, pending an inmate’s
appointment with a doctor. Triplett additionally accuses Dr. Woodall, Dr.
McCleave, and Nurse Woodland of not giving him nose spray to relieve his
congested nose and ears. Triplett also faults Dr. McCleave and Nurse Woodland
for allegedly denying him antibiotics for this. As for Triplett’s dermatological
concerns, he contends that a dermatologist has prescribed him medicated shampoo,
and Dr. Woodall “routinely reduces the number of refills” on this shampoo. Id. at
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6.
Finally, Triplett alleges that he is being denied food through missing items
and inadequate portions of the items that are served. As a result, he claims to
have lost weight. He maintains that the problem stems from inmate kitchen
workers who are stealing food from the kitchen and placing unreasonably small
amounts of food on the inmate trays. Allegedly, Banks, Warden Turner, Ross,
Captain R. Evans, Captain S. Evans, Captain Cooley, Captain Davis, Lieutenant
Causey, and Lieutenant Taylor are all aware of the problem but are deliberately
indifferent to it. Triplett believes the missing items and inadequate portions are
also the fault of Aramark and the personnel of Valley Foods and Aramark.
Triplett brings this action, pursuant to 42 U.S.C. § 1983, asserting claims for
cruel and unusual punishment, denial of handicap accessibility, and violations of
due process. He seeks injunctive relief and compensatory and punitive damages.
DISCUSSION
The Prison Litigation Reform Act of 1996, applies to prisoners proceeding in
forma pauperis in this Court. The statute provides in pertinent part that, “the
court shall dismiss the case at any time if the court determines that . . . the action . .
. (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. ' 1915(e)(2)(B). The statute “accords judges not only the
authority to dismiss a claim based on an indisputably meritless legal theory, but
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also the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless.” Denton v.
Hernandez, 504 U.S. 25, 32 (1992). “[I]n an action proceeding under [28 U.S.C. '
1915, a federal court] may consider, sua sponte, affirmative defenses that are
apparent from the record even where they have not been addressed or raised.” Ali
v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990). “Significantly, the court is authorized
to test the proceeding for frivolousness or maliciousness even before service of
process or before the filing of the answer.” Id. The Court has permitted Triplett
to proceed in forma pauperis in this action. His Complaint is subject to sua sponte
dismissal under ' 1915.
Among others, Triplett sues Tilley, McLeod, Joseph Cooley, Valley Foods,
Aramark, and CGL. Triplett accuses the first three of violations of due process,
and he claims cruel and unusual punishment against the latter three.
TILLEY AND MCLEOD
First, the law librarians, Tilley and McLeod are accused of violating MDOC
policy by overcharging Plaintiff for legal postage and then not addressing this issue
when he filed a grievance. This, Plaintiff contends, violates his right to due
process.
An intentional deprivation of property may be a constitutional violation.
Daniels v. Williams, 474 U.S. 327, 330-31 (1986). However:
an unauthorized intentional deprivation of property by a state
employee does not constitute a violation of the procedural
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requirements of the Due Process Clause of the Fourteenth Amendment
if a meaningful postdeprivation remedy for the loss is available. For
intentional . . . deprivations of property by state employees, the state’s
action is not complete until and unless it provides or refuses to provide
a suitable postdeprivation remedy.
Hudson v. Palmer, 468 U.S. 517, 533 (1984). Mississippi provides an adequate
postdeprivation remedy for the loss of property through other means, because
Triplett may sue for conversion and for taking property without just compensation
under the Mississippi Constitution. Nickens v. Melton, 38 F.3d 183, 185 (5th Cir.
1994) (conversion); Johnson v. King, 85 So. 3d 307, 310-11 (¶¶7-8) (Miss. Ct. App.
2012) (Mississippi Takings Clause). For this reason, the claims against the law
librarians for deprivation of property without due process are dismissed as
frivolous.
JOSEPH COOLEY
Second, Triplett asserts a due process claim against Joseph Cooley for
allegedly mishandling his prison grievances.
Triplett “does not have a federally protected interest in having these
grievances resolved to his satisfaction.” Geiger v. Jowers, 404 F.3d 371, 374 (5th
Cir. 2005). Even the failure to investigate a grievance, by itself, does not rise to the
level of a constitutional violation. Id.; Andrews v. Fowler, 98 F.3d 1069, 1079 (8th
Cir. 1996); Smallwood v. McDonald, 805 F.2d 1036, 1036 (6th Cir. 1986); Gomez v.
Whitney, 757 F.2d 1005, 1006 (9th Cir. 1985). The claim against Cooley will
therefore be dismissed as frivolous.
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VALLEY FOODS AND ARAMARK
Next, Triplett sues the food contractors, Valley Foods and Aramark, for a
denial of food. He claims that their dieticians develop the menu based upon the
required caloric guidelines and the menu is approved by MDOC. He accuses
unnamed Valley Foods and Aramark employees of then making substitutions that
reduce the caloric makeup of the meals. He also “suspect[s]” that the missing food
was either stolen by inmates or never provided to the prison. (Resp. at 5). He
seeks to hold the contractors liable on this Eighth Amendment claim, under a
theory of vicarious liability. Id. at 6.
“There is no vicarious or respondeat superior liability of supervisors under
section 1983.” Rios v. City of Del Rio, 444 F.3d 417, 425 (5th Cir. 2006). The
supervisor must either be personally involved in the violation or otherwise have
caused the violation. Id. Triplett merely accuses these Defendants’ employees of
being involved in the alleged food shortage. This is insufficient to state a claim
against Valley Foods and Aramark.
Nevertheless, Triplett also speculates that Aramark is personally involved
because the menus have been changed recently to reduce the serving size of
margarine and sausage gravy that is served to the inmates. As for the gravy,
because the amount of gravy was handwritten on an otherwise typed menu, this
“leads [Plaintiff] to believe that it was originally 6 oz[.], as on the 2016 menus.
However, the production menus, which [he] is inclined to believe are created by
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Aramark management offsite, all show 4 oz.” (Supp. Resp. at 2). He “believe[s]
that all this supports [his] contention . . . that parts of [the alleged] food shortage
are indeed due to corporate decisions, likely onsite in some instances and offsite in
others.” Id. at 3.
Plaintiff’s inclinations and suspicions notwithstanding, this does not suffice
to demonstrate Aramark’s personal involvement. The claims against the food
contractors will therefore be dismissed as frivolous and for failure to state a claim.
CGL
Finally, Triplett sues CGL, the maintenance contractor, for the alleged
repeated sewage leaks on his zone. He claims that the local “supervisor of the
inmate crew” did not implement Triplett’s proposed repairs and that the repairs
completed so far have not worked. (Compl. at 14).
Like the food contractors, CGL is sued under § 1983 only because it is an
employer. Triplett does not allege the involvement of anyone other than the local
supervisor. The Complaint fails to state a claim against CGL upon which relief
may be granted.
IT IS THEREFORE ORDERED AND ADJUDGED that, for the reasons
stated above, the claims against Defendants Laura Tilley, Gia McLeod, and Joseph
Cooley are DISMISSED WITH PREJUDICE as frivolous.
IT IS FURTHER ORDERED AND ADJUDGED that the claims against
Defendants Valley Foods, Aramark, and CGL, a Hunt Company, are DISMISSED
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WITH PREJUDICE as frivolous and for failure to state a claim against them upon
which relief could be granted. The remainder of the case shall proceed on the
lighting, sanitation, accessibility, medical charges and treatment, and food shortage
claims.
SO ORDERED AND ADJUDGED this the 2nd day of August, 2017.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE

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