Tapp v. Dunlap et al

Filing 6

Opinion and Order. Plaintiff's Complaint fails to state a plausible claim and is dismissed pursuant to 28 U.S.C. § 1915A. The Court further certifies, pursuant to 28 U.S.C. §1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Christopher A. Boyko on 8/11/2017. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

KATAWN OMDU TAPP,
Plaintiff,
v.
DANIEL DUNLAP, et al.,

Defendants.

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CASE NO. 1: 17 CV 647
JUDGE CHRISTOPHER A. BOYKO

OPINION AND ORDER

CHRISTOPHER A. BOYKO, J.:
Background
Pro se Plaintiff Katawn Omdu Tapp has filed an informa pauperis Prisoner Complaint
pursuant to 42 U.S.C. § 1983 against Lake County Sheriff Daniel Dunlap, Chief Deputy
Sheriff Frank Leon Bruno and Captain Cynthia Brooks, Administrator of the Lake County
Adult Detention Facility (the Facility). (Doc. No. 1.) Although the Plaintiff does not allege
any specific constitutional violation in his Complaint, he complains of a litany of conditions in
the Facility, including mold in the showers, insects, dust and that corrections officers serve
food without wearing hair nets or gloves. Additionally, he contends that medication should be
distributed to inmates by certified registered nurses rather than corrections officers; that
“[d]etainees should be allowed make one (1) free phone call upon being ‘booked’”; that the

“offender population would like to access and utilize a Law Library that is up-to-date”; and
that they “should be required One (1) mandatory hour of recreation day” and be provided
clean blankets once a month. (Id. at 4.)
He seeks monetary damages for “having to live in an unsanitary environment” in the
Facility, as well as injunctive relief. In July 2017, he notified the Court that he was
transferred from the Facility and is now incarcerated in the Lorain Correctional Institution.
Standard of Review
Although pro se pleadings liberally construed, Williams v. Curtin, 631 F.3d 380 (6th
Cir. 2011), Federal District Courts are expressly required, under 28 U.S.C. §1915A, to screen
all actions in which a prisoner seeks redress from a governmental entity, or officers or
employees of a governmental entity, and to dismiss before service any such action that the
Court determines is frivolous or malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief from a defendant who is immune from such relief. See 28
U.S.C. §1915A; Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010). To survive a dismissal for
failure to state a claim, a pro se complaint must contain sufficient factual matter, accepted as
true, to state claim to relief that is plausible on its face. Hill, 630 F.3d at 471 (holding that the
dismissal standard articulated in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007) governs dismissals under 28 U.S.C. § 1915A).
Analysis
Upon review, the Court finds that the Plaintiff’s Complaint must be dismissed
pursuant to § 1915A.
To the extent the Plaintiff seeks declaratory or injunctive relief regarding conditions at
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the Facility, such claims are now moot because he is no longer incarcerated there. See Holson
v. Good, 579 F. App’x 363, 366 (6th Cir. 2014) (holding that a plaintiff’s § 1983 claims
against a parole officer seeking injunctive relief based on conditions at a halfway house were
rendered moot when the plaintiff was moved out of the halfway house).
Further, the Plaintiff has failed to allege a plausible constitutional claim that could
support a damages claim under § 1983. It is well established that the Constitution “does not
mandate comfortable prisons.” Wilson v. Seiter, 501 U.S. 294, 298 (1981). “Not every
unpleasant experience a prisoner might endure while incarcerated constitutes cruel and
unusual punishment within the meaning of the Eighth Amendment.” Ivey v. Wilson, 832 F.2d
950, 954 (6th Cir. 1987). “[E]xtreme deprivations are required to make out a conditions-ofconfinement claim” because routine “discomfort is ‘part of the penalty that criminal offenders
pay for their offenses against society.’” Hudson v. McMillian, 503 U.S. 1, 8-9 (1992), citing
Rhodes v. Chapman, 452 U.S. 337, 347 (1981). “[O]nly those deprivations denying ‘the
minimal civilized measure of life’s necessities’ are sufficiently grave to form the basis of an
Eighth Amendment violation.” Hudson, 503 U.S. at 9. In other words, the Constitution is
concerned only with “deprivations of essential food, medical care, or sanitation,” or “other
conditions intolerable for prison confinement.” Rhodes, 452 U.S. at 348.
None of the conditions of which the Plaintiff rises to the level of the kind of extreme
deprivation required to make out a constitutional, conditions-of-confinement claim. Federal
Courts have routinely found similar prison conditions insufficient to state a claim. See, e.g.,
Shrader v. White, 761 F.2d 975 (4th Cir.1985) (prisoner's allegations that there were leaking
ceilings, cold water in cells, dripping shower heads, the shower area was covered in rust,
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mold, and mildew, and shower controls did not work were constitutionally insignificant);
Oliver v. Powell, 250 F. Supp. 2d 593, 604 (E.D.Va. 2002) (prisoner’s allegations that cell
contained roaches, leaky toilets, peeling paint and writing on the wall did not state a claim
under the Eighth Amendment); Partak v. Behrle, No. 09 CV 1256, 2011 WL 7629500, at *17
(N.D.N.Y. Sept. 12, 2011) (“the shower drain being clogged for three days is unpleasant,
inconvenient, and even if plaintiff got athletes foot as a result, does not rise to the level of a
denial . . . sufficient to violate the Eighth Amendment”) (report & rec. adopted, Partak v.
Behrle, No. 09 CV 1256, 2012 WL 1037950 (N.D.N.Y. Mar. 27, 2012)).
All of the conditions of which the Plaintiff complains and had to temporarily endure
while housed in the Facility, though unpleasant, are part of penalty that criminal offenders pay
for their offenses against society. See Rhodes v. Chapman, 452 U.S. 337.
The Plaintiff has also failed to allege a plausible constitutional claim to the extent he
alleges a deprivation of access to “up-to-date” legal resources. In order to state a
constitutional claim under the First Amendment for denial of access to the courts, a plaintiff
must plead and demonstrate that his lack of access to legal materials actually hindered his
efforts to pursue a non-frivolous legal claim. See Lewis v. Casey, 518 U.S. 343, 351-53
(1996). The Plaintiff makes no such allegations here.
Conclusion
Accordingly, for the reasons stated above, the Plaintiff’s Complaint fails to state a
plausible claim and is dismissed pursuant to 28 U.S.C. § 1915A. The Court further certifies,
pursuant to 28 U.S.C. §1915(a)(3), that an appeal from this decision could not be taken in

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good faith.
IT IS SO ORDERED.

s/ Christopher A. Boykko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: August 11, 2017

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