Gilmore v. Bush et al
Memorandum Opinion and Order: this action is dismissed pursuant to 28 U.S.C. § 1915(e). An appeal of this decision cannot be taken in good faith. This case is closed. Judge Jeffrey J. Helmick on 5/1/2017. (S,AL)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
Sean A. Gilmore,
Case No. 3:16-cv-01975
Officer Bush, et al.,
BACKGROUND AND HISTORY
Pro se Plaintiff Sean A. Gilmore filed this action under 42 U.S.C. § 1983 against Lucas
County Jail Officer Bush, Sergeant John Doe, and Head Nurses John and Jane Doe. In his
Complaint, Plaintiff contends he slipped and fell on a wet, freshly-mopped floor in his dorm area.
He states he injured his back, neck, shoulder, and jaw. He asserts the Defendants were negligent in
failing to place safety cones around the wet floor to warn inmates that it posed a hazard, and this
violated his right to be free from cruel and unusual punishment. He states that falling on the floor
was embarrassing and asserts a claim for intentional infliction of emotional distress. He further
contends, without explanation, that he was denied medical care and was denied due process when
Bush would not give him grievance forms. He seeks $50,000.00 from each Defendant for physical
and emotional injuries, and $20,000.00 against each Defendant for punitive damages.
STANDARD OF REVIEW
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365 (1982)
(per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), I am required to dismiss an in forma pauperis
action under 28 U.S.C. ' 1915(e) if it fails to state a claim upon which relief can be granted, or if it
lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319 (1989); Lawler v. Marshall, 898
F.2d 1196 (6th Cir. 1990); Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). A claim
lacks an arguable basis in law or fact when it is premised on an indisputably meritless legal theory or
when the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. A cause of action fails to
state a claim upon which relief may be granted when it lacks Aplausibility in the complaint.@ Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 564 (2007).
A pleading must contain a Ashort and plain statement of the claim showing that the pleader
is entitled to relief.@ Ashcroft v. Iqbal , 556 U.S. 662, 677-78 (2009). The factual allegations in the
pleading must be sufficient to raise the right to relief above the speculative level on the assumption
that all the allegations in the Complaint are true. Bell Atl. Corp., 550 U.S. at 555. The Plaintiff is not
required to include detailed factual allegations, but must provide more than Aan unadorned,
the-defendant-unlawfully-harmed-me accusation.@ Iqbal, 556 U.S. at 678. A pleading that offers
legal conclusions or a simple recitation of the elements of a cause of action will not meet this
pleading standard. Id. In reviewing a Complaint, I must construe the pleading in the light most
favorable to the Plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998).
The Eighth Amendment prohibition on cruel and unusual punishment protects
convicted prisoners from the “unnecessary and wanton infliction of pain.” Baker v. Goodrich,
649 F.3d 428, 434 (6th Cir. 2011) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). Pretrial
detainee claims, though they fall under the Due Process Clause of the Fourteenth Amendment
rather than the Eighth Amendment, are analyzed under the same rubric as Eighth Amendment
claims brought by prisoners. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983);
Roberts v. City of Troy, 773 F.2d 720, 723 (6th Cir. 1985) (citing Bell v. Wolfish, 441 U.S. 520, 545
The Eighth Amendment imposes a constitutional limitation on the power of the states
to punish those convicted of crimes. Punishment may not be “barbarous” nor may it
contravene society’s “evolving standards of decency.” Rhodes v. Chapman, 452 U.S. 337, 346
(1981). The Eighth Amendment protects inmates by requiring that “prison officials ... ensure
that inmates receive adequate food, clothing, shelter, and medical care, and ... ‘take reasonable
measures to guarantee the safety of the inmates.’” Id. at 832 (quoting Hudson v. Palmer, 468 U.S.
517, 526-27 (1984)). This, however, does not mandate that a prisoner be free from discomfort
or inconvenience during his or her incarceration. Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir.
1987) (per curiam) (quoting Rhodes, 452 U.S. at 346). Prisoners are not entitled to unfettered
access to the medical treatment of their choice, see Hudson v. McMillian, 503 U.S. 1, 9 (1992), nor
can they “expect the amenities, conveniences and services of a good hotel.” Harris v. Fleming,
839 F.2d 1232, 1235 (7th Cir. 1988). See Thaddeus-X v. Blatter, 175 F.3d 378, 405 (6th Cir. 1999).
In sum, the Eighth Amendment affords the constitutional minimum protection against
conditions of confinement which constitute health threats, but does address those conditions
which cause the prisoner to feel merely uncomfortable or which cause aggravation or
annoyance. Hudson, 503 U.S. at 9-10 (requiring extreme or grave deprivation).
The Supreme Court in Wilson v. Seiter, 501 U.S. 294, 298 (1991), set forth a framework
for courts to use when deciding whether certain conditions of confinement constitute cruel and
unusual punishment prohibited by the Eighth Amendment. A Plaintiff must first plead facts
which, if true, establish that a sufficiently serious deprivation has occurred. Id. Seriousness is
measured in response to “contemporary standards of decency.” Hudson, 503 U.S. at 8 (1992).
Routine discomforts of prison life do not suffice. Id. Only serious medical needs or extreme
deprivations regarding the conditions of confinement will implicate the protections of the
Eighth Amendment. Id. at 9. Second, a Plaintiff must also establish a subjective element
showing the prison officials acted with a sufficiently culpable state of mind. Id. Deliberate
indifference is characterized by obduracy or wantonness, not inadvertence or good faith error.
Whitley, 475 U.S. at 319. Liability cannot be predicated solely on negligence. Id. A prison
official violates the Eighth Amendment only when both the objective and subjective
requirements are met. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Plaintiff’s claim does not meet either the objective or subjective criteria. First, Plaintiff
gives no information about the incident. He states he slipped and fell on a wet floor that was
freshly mopped. A wet floor, alone, does not constitute a serious health threat or extreme
condition of confinement. Furthermore, Plaintiff contends the Defendants were negligent in
not properly placing hazard cones around the wet floor area. To satisfy the subjective criteria,
Plaintiff must demonstrate that the Defendants acted with a sufficiently culpable state of mind.
Negligence claims do not rise to the level of a constitutional violation. Plaintiff has not stated
a claim for cruel and unusual punishment under the Fourteenth Amendment.
Furthermore, Plaintiff contends he was denied due process when Officer Bush would
not give him grievance forms. To establish a procedural due process violation, Plaintiff must
prove that :(1) he was deprived of a liberty or property interest, and (2) the procedures afforded
to protect that interest were insufficient. Swihart v. Wilkinson, 209 F. App’x 456, 458 (6th Cir.
2006). Petitioner fails to raise a claim of constitutional magnitude because he has no
constitutionally protected liberty or property interest in an effective prison or jail grievance
procedure. See Hewitt v. Helms, 459 U.S. 460, 467 (1983); Walker v. Michigan Dept. of Corrections,
No. 04–1347, 2005 WL 742743, at *3 (6th Cir. Apr. 1, 2005).
Plaintiff’s remaining claims arise, if at all, under state tort law. Supplemental
jurisdiction exists whenever state law and federal law claims derive from the same nucleus of
operative facts and when considerations of judicial economy dictate having a single trial. United
Mine Workers of America v. Gibbs, 383 U.S. 715, 724 (1966). I, however, may exercise discretion
in hearing state law matters. Id. at 726. In cases where the federal law claims are dismissed
before trial, the state law claims should also be dismissed. Id. Having dismissed Plaintiff’s
federal law claims, I decline jurisdiction to hear Plaintiff’s state law claims.
Having considered and examined the pro se Plaintiff’s pleadings to determine their legal
viability, I conclude they fail to state a claim upon which relief may be granted. Therefore, this
action is dismissed pursuant to 28 U.S.C. § 1915(e). An appeal of this decision cannot be taken in
good faith. This case is closed.
s/ Jeffrey J. Helmick
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?