Pullen v. Mainner et al

Filing 90

ORDER adopting Report and Recommendation re 81 Report and Recommendation denying 52 Motion to Amend/Correct; denying 59 Motion to Amend/Correct; denying 67 Motion for Leave to File; denying 71 Motion for Leave to File. Signed by Judge Michael R. Barrett on 9/22/15. (ba)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Terry Tyrone Pullen, Jr.,
Plaintiff,

Case No. 1:14cv223

v.

Judge Michael R. Barrett

C.O. Mainner, et al.,
Defendants.
ORDER
This matter is before the Court upon the Magistrate Judge’s June 8, 2015 Report
& Recommendations (“R&R”) recommending that Plaintiff’s Motions for Leave to Amend
(Docs. 52, 59, 67, 71) be denied.
The parties were given proper notice under Rule 72(b) of the Federal Rules of
Civil Procedure, including notice that the parties would waive further appeal if they failed
to file objections to the R&R in a timely manner. See United States v. Walters, 638 F.2d
947, 949-950 (6th Cir. 1981). Plaintiff filed Objections to the R&Rs. (Doc. 84). For the
reasons stated below, the Court OVERRULES Plaintiff’s Objections, and the Magistrate
Judge’s R&R is ADOPTED in its entirety.
In her R&R, the Magistrate Judge concluded that Plaintiff’s proposed
amendments—which would add defendants as well as supplement Plaintiff’s claims or
add new claims—would be futile because they fail to state a claim upon which relief
may be granted.
Plaintiff’s objections focus on Plaintiff’s claims based on the sale of shampoo
bottles from the commissary and the passing out of shampoo bottles. According to

Plaintiff, the inmates in the unit where he is housed have used the shampoo bottles to
project human bodily fluids.

Plaintiff claims this has resulted in a violation of his

Fourteenth Amendment right to due process and his Eighth Amendment right to be free
from conditions posing substantial risk of serious harm.
The Due Process Clause of the Fourteenth Amendment provides in relevant part
that no state shall “deprive any person of life, liberty, or property, without due process of
law.” U.S. Const. amend XIV. It is not clear from Plaintiff’s objections or his motions for
leave to file an amended or supplemental complaint which due process right Plaintiff is
asserting.

Moreover, it would appear that any claim Plaintiff may have would be

properly brought as claim under the Eighth Amendment. See Whitley v. Albers, 475
U.S. 312, 327 (1986) (explaining that in the Eighth Amendment “serves as the primary
source of substantive protection to convicted prisoners” and “the Due Process Clause
affords respondent no greater protection than does the Cruel and Unusual Punishments
Clause.”); see also Wells v. Jefferson Cnty. Sheriff Dep't, 159 F. Supp. 2d 1002, 1008
(S.D. Ohio 2001) aff'd, 35 F. App'x 142 (6th Cir. 2002) (claim that jail staff failed to
protect plaintiff from physical attacks is properly brought as Eight Amendment violation).
Under the Eighth Amendment, “[p]rison officials have an affirmative duty to
protect inmates from violence perpetrated by other prisoners.” Wilson v. Yaklich, 148
F.3d 596, 600 (6th Cir. 1998). “Nevertheless, not all injuries suffered by an inmate at
the hands of another prisoner result in constitutional liability for prison officials under the
Eighth Amendment.” Id. Moreover, the Prison Litigation Reform Act provides that “[n]o
Federal civil action may be brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury suffered while in custody without a

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prior showing of physical injury.” 42 U.S.C. § 1997e(e). Under a similar set of facts,
another district court has explained:
Even assuming Plaintiff is claiming that being battered with spit and urine
constitutes a physical injury, he cannot avoid the application of §
1997e(e). Although the requisite physical injury need not be serious, it
must be more that de minimis. Robinson v. Corr. Corp. of Am., 14 F.
App'x. 382, 383 (6th Cir. 2001).
Jennings v. Weberg, No. 2:06CV235, 2007 WL 80875, at *3 (W.D. Mich. Jan. 8, 2007).
Here, Plaintiff has alleged an injury caused by the bodily fluids projected from the
shampoo bottles. However, this physical injury is de minimis, and cannot support a
claim under the Eighth Amendment.
Based on the foregoing, the Court hereby ADOPTS the Magistrate Judge’s June
8, 2015 R&R. Accordingly, Plaintiff’s Motions for Leave to Amend (Docs. 52, 59, 67, 71)
are hereby DENIED.
IT IS SO ORDERED.
/s/ Michael R. Barrett
JUDGE MICHAEL R. BARRETT

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