Brown v. Timmerman-Cooper et al

Filing 94

REPORT AND RECOMMENDATIONS re 88 MOTION for Judgment on the Pleadings & 90 MOTION for Preliminary Injunction and Temporary Restraining Order: The Magistrate Judge RECOMMENDS that the defendants' motion for judgment on the pleadings be granted and Mr. Brown's motion for a TRO and for a preliminary injunction be denied. Objections to R&R due within fourteen (14) days of the date of this Report. Signed by Magistrate Judge Terence P Kemp on 2/4/2013. (er1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Frank C. Brown, Jr.,

:

Plaintiff,

:

v.

:

Warden Deb Timmerman-Cooper, :
et al.,
Defendants.

Case No. 2:10-cv-283
JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
Plaintiff Frank C. Brown, Jr., a state prisoner formerly
housed at the London Correctional Institution, filed this civil
rights action under 42 U.S.C. §1983.

In his complaint, as

explained in prior orders of this Court, Mr. Brown alleges that
he and other inmates at London were denied adequate amounts of
clothing, linens, hygiene materials, laundry detergent, washers,
dryers, and cleaning supplies.

Mr. Brown asserts that the

defendants’ actions violated the Eighth Amendment to the United
States Constitution, which prohibits cruel and unusual
punishment.
In an Opinion and Order filed on July 10, 2012, the Court
granted in part and denied in part defendants’ motion for
judgment on the pleadings, dismissing the class action claims in
the complaint but denying the motion in all other respects.

In

particular, the Court overruled defendants’ arguments that the
complaint did not adequately plead their personal involvement in
the actions described in the complaint and that Mr. Brown did not
properly exhaust the remedies available to him under the prison
grievance system prior to filing suit.

Defendants have now filed

another motion for judgment on the pleadings (their third in this
case), arguing that the complaint fails to state a claim upon

which relief can be granted.

That motion is fully briefed.

Mr.

Brown has also filed another motion for a temporary restraining
order and preliminary injunction - one of several he has filed in
this case - asking the Court to provide him some remedy for what
he characterizes as retaliation which has affected his ability to
litigate this and other cases.
briefed.

That motion is also fully

This Report and Recommendation will address both

motions.
I.

The Facts

For purposes of ruling on a motion for judgment on the
pleading, the well-pleaded and plausible facts must be taken to
be true.

See, e.g., Southern Ohio Bank v. Merrill Lynch, Pierce,

Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir. 1973); see also
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569 (2007).

The

Court will summarize the operative facts which are found in Mr.
Brown’s complaint (Doc. 4).

This summary includes facts recited

in the exhibits to the complaint, which the Court may consider
when ruling on a motion for judgment on the pleadings.

See

Haeberle v. University of Louisville, 90 Fed. Appx. 895 (6th Cir.
February 6, 2004), citing Weiner v. Klais & Co., 108 F.3d 86, 89
(6th Cir. 1997).
All of Mr. Brown’s claims in this case arise from his
incarceration at the London Correctional Institution, where he
was housed until being transferred to the Madison Correctional
Institution in late 2011.

The body of his complaint takes issue

with what he characterizes as “a practice of cruel and unusual
punishment by not providing adequate clothing and sanitary
conditions ....”

In particular, he alleges that prison officials

did not provide him with proper or adequate amounts of clothing
and laundry facilities.

Although he includes other inmates’

situations in his allegations due to his effort to bring this
case as a class action, he includes himself in a group of inmates
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who were issued two sets of underclothing, or whites, one or two
sets of blues (which included shirts and pants), and “no hooded
sweatshirts and/or coats or hooded coats for winter, spring, and
fall wear.”

See Complaint, at PAGEID #37.

He also complains

that the way laundry was scheduled, many inmates could wash their
clothing only once a week.

Finally, he asserts that linens were

not timely exchanged for new ones and that the laundry schedule
created sanitary problems with towels, which could lead to
diseases such as “skin borne maladies, aphids, and illnesses.”
Id. at PAGEID #38.

He does not allege, however, that he ever

contracted any of these ailments.
Mr. Brown’s grievances and other attachments shed some
additional light on his allegations.

It appears that it was the

Institution’s policy not to allow inmates to use soap issued for
bathing purposes as laundry detergent and to launder inmates’
clothing once a week.

Also, it appears that it was policy to

issue an inmate three sets of state clothing rather than the one
or two sets Mr. Brown claims to have received.

Finally, one of

Mr. Brown’s grievances states, as does his complaint, that he was
not given a hooded sweatshirt (at least when he arrived at London
in September, 2008), but only a jacket, even though he had an
outside job.

It is these facts which, defendants claim, do not

set forth a plausible cause of action under the Eighth Amendment.
The Court notes that this motion, filed almost two and one-half
years after the complaint was filed, is the first time that
defendants have actually addressed the merits of Mr. Brown’s
constitutional claims.
II.

Discussion

The Eighth Amendment to the United States Constitution
prohibits the imposition of cruel and unusual punishment.

It

applies to state officials such as the defendants through the
operation of the Due Process Clause of the Fourteenth Amendment.

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It has been used to evaluate prison conditions, which, at times,
are found to be so at odds with “evolving standards of decency,”
see Rhodes v. Chapman, 452 U.S. 337, 346 (1981), quoting Trop v.
Dulles, 356 U.S. 86, 101 (1958), that they cannot be squared with
the language of the Eighth Amendment.

That is, prison

“[c]onditions must not involve the wanton and unnecessary
infliction of pain, nor can they be grossly disproportionate
to the severity of the crime warranting imprisonment.”
Rhodes v. Chapman, 452 U.S. at 347. However, conditions that
cannot be said to be cruel and unusual under contemporary
standards are not unconstitutional. See id. Further, a prison
official charged with an Eighth Amendment violation must have
acted with “‘deliberate indifference’ to a substantial risk of
serious harm” in order to be held liable. See Woods v. Lecureux,
110 F.3d 1215, 1222 (6th Cir. 1997), quoting Farmer v. Brennan,
511 U.S. 825, 834 (1994).
More specifically, as it applies to clothing and sanitation,
the Eighth Amendment has been interpreted to forbid prison
conditions or practices which pose a substantial risk to an
inmate’s health or well-being. See, e.g., Flanory v. Bonn, 604
F.3d 249, 255 (6th Cir. 2010)(holding that an intentional denial
of dental care and dental hygiene items “satisfies the objective
and subjective requirements of an Eighth Amendment
violation...”). As the Court of Appeals explained in Knop v.
Johnson, 977 F.2d 996, 1012-13 (6th Cir. 1992), the failure to
provide adequate clothing for inmates exposed to winter weather
can also violate the Eighth Amendment; “[e]xposure to Michigan
winters without adequate clothing can obviously inflict pain. No
legitimate government interest is served by withholding adequate
clothing.” The denial of laundry facilities or clean clothes may
also constitute an Eighth Amendment violation, but only when the
inmate claims to have “suffered a physical injury or a disease as
a result of these conditions.” Miller v. Brown, 2007 WL 1876506,
*8 (D.N.J. June 26, 2007). Generally, it is the case that, at
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least for purposes of a money damages claim, in order for any
prison condition to be actionable under the Eighth Amendment, an
inmate must show that he or she has been actually harmed by the
condition in question. See, e.g., Benjamin v. Fraser, 343 F.3d
35, 51 n. 17 (2d Cir. 2003)(“To establish the deprivation of a
basic human need such as reasonable safety, an inmate must show
‘actual or imminent harm,’” quoting Lewis v. Casey, 518 U.S. 343,
350 (1996)). Put another way, an inmate who does not claim to
have suffered “a severe or prolonged lack of sanitation
constituting an infliction of pain within the meaning of the
Eighth Amendment” has no claim for damages based on allegedly
unsanitary clothing or living conditions. See Washington v.
Perry, 2009 WL 2579214, *4 (W.D. Wash. Aug. 19, 2009). Merely
being exposed to conditions which create a risk of harm is no
basis for an award of damages unless the harm actually occurs.
Molina v. Smearsal, 2011 WL 127158 (N.D. Ohio Jan. 14, 2011).
The defendants make two arguments in support of their motion
for judgment on these claims. First, they assert that the only
relief Mr. Brown sought in his complaint was injunctive relief,
and that his transfer to another institution moots any such
claim. Defendants correctly understand the significance of Mr.
Brown’s transfer as it relates to any potential injunctive relief
directed to the clothing and laundry practices at London. As
this Court has held, “[w]hen an inmate files suit against prison
officials at the institution of his incarceration based upon
those officials' wrongful conduct, seeking declaratory and
injunctive relief, and that inmate is subsequently transferred or
released, courts routinely dismiss the declaratory and injunctive
relief claims as moot.” Russell v. Ohio, 2012 WL 870729, *5
(S.D. Ohio March 14, 2012), adopted and affirmed 2012 WL 1142925
(S.D. Ohio Apr. 4, 2012), citing Sossamon v. Texas, 131 S.Ct.
1651, 1669-70 (2011). Mr. Brown’s claims for declaratory and
injunctive relief are moot, notwithstanding his argument, in his
opposing memorandum, that he has encountered other allegedly
unconstitutional conditions at Madison. Those are simply not the
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subject of his complaint or this lawsuit.
Defendants’ argument about mootness breaks down, however,
when they assert that the only fair interpretation of Mr. Brown’s
complaint is that he is asking solely for prospective relief and
not monetary damages. It is true that an injunction is the
remedy he asks for specifically; however, under Fed.R.Civ.P.
54(c), a judgment “should grant the relief to which each party is
entitled, even if the party has not demanded that relief in its
pleadings.” See also EEOC v. Massey Ferguson, Inc., 622 F.2d
271, 277 (7th Cir. 1980). The defendants themselves seem to have
understood this; their prior motion for judgment on the
pleadings, raising the issue of lack of personal involvement,
would have been unnecessary had the complaint requested only
prospective relief. Prison officials sued in their official
capacity for injunctive relief need not have been personally
involved in the alleged deprivations so long as they possess the
power or authority to remedy unconstitutional conditions. See,
e.g., Bodie v. Morgenthau, 342 F.Supp. 2d 193, 203 (S.D.N.Y.
2004)(“While a plaintiff many not pursue money damages against an
individual defendant who lacks personal involvement with the
underlying offense, that does not preclude a plaintiff from
seeking prospective, injunctive relief against the same
defendant”). Thus, the Court is required to determine if the
complaint states a claim for constitutional violations, and for
money damages, notwithstanding Mr. Brown’s transfer out of the
London Correctional Institution.
In the Court’s view, Mr. Brown’s complaint does not satisfy
the current pleading standards which the Supreme Court has
clarified in such recent decisions as Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 569 (2007) and Ashcroft v. Iqbal, 556 U.S.
129 (2009). The complaint contains essentially no allegations
that as a result of any of the conditions to which Mr. Brown was
subjected - less than the regulation amount of clothing,
infrequent laundry services, using “crusty” towels, or sleeping
on pillows without pillowcases - he suffered any harm, let alone
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the kind of wanton or unnecessary infliction of pain that rises
to the level of an Eighth Amendment violation. His concerns
truly seemed to be, at least when he filed the complaint, that
the prison was not living up to its own standards concerning the
amount and type of clothing issued to inmates, and that the
inmates were being forced to experience conditions - such as
having to wear the same underclothing for a week at a time which the prison officials themselves would not consider
appropriate. That may be so, but equality between the living
conditions of prisoners and prison staff is not the touchstone of
the Eighth Amendment; rather, it is the prevention of the wanton
or unjustified infliction of unnecessary pain or suffering on
inmates.
Prison conditions are rarely ideal. Even standards
established by organizations that evaluate prison conditions and
recommend best practices “do not establish constitutional
minima.” Miles v. Bell, 621 F.Supp 51, 60 (D. Conn. 1985). Our
system of divided government entrusts the operation of state
prisons to the state governments, and particularly the executive
branches of those governments. That being so, courts cannot (and
should not) substitute their own judgments for those of prison
officials about how to operate prisons unless conditions in
prisons fall below an acceptable level of decency. In other
words, the Constitution, and the Courts which enforce it, do not
and should not prevent prison officials from operating prisons
“consistent with the penal philosophy of their choosing, absent
constitutional violations,” and such officials may impose
“‘restrictive and even harsh’” conditions “unless the evidence
demonstrates that conditions are so extreme as to violate basic
concepts of humanity and deprive inmates of a minimal level of
life's basic necessities.” Madrid v. Gomez, 889 F.Supp. 1146,
1262 (N.D. Cal. 1995), quoting Farmer v. Brennan, supra, at 833.
The only allegation made by Mr. Brown that comes even close
to satisfying his duty to plead facts, rather than legal
conclusions, see Twombly, supra, and to allege a direct injury
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from the defendants’ actions, is his claim that he was not issued
adequate outdoor clothing. However, the complaint alleges, in an
exhibit, only one specific failure to issue a hooded sweatshirt,
and that was in September, 2008. At that time of the year, the
failure to provide an inmate with a coat or hooded sweatshirt
rather than a shirt and jacket - even if the inmate must work
outdoors - is not a per se violation of the Eighth Amendment.
Mr. Brown does not allege in his complaint that on any particular
day, or ever, as a result of inadequate outdoor clothing, he was
subjected to severe weather conditions and suffered needlessly
from being unprotected from the elements. Again, this type of
claim cannot be sustained by a showing of mild discomfort; even
an inmate who “was never issued certain clothing items,...
suffered from hurt ears and numb hands, felt frostbite and caught
colds” did not prove an Eighth Amendment violation because he
“did not show that he was forced to be in the cold for long
periods of time or that he suffered anything more than the usual
discomforts of winter.” Mays v. Springborn, 575 F.3d 643, 648
(7th cir. 2009). “Inmates who have been successful in pursuing
Eighth Amendment claims related to cold exposure have been
exposed to extremely cold temperatures for long periods of time
or have had no other means of warming themselves.” Rhoden v.
Bundren, 2008 WL 747589, *2 (S.D. Ill. March 19, 2008). Simply
put, Mr. Brown has alleged nothing of the sort. His statement
that he and other inmates were not routinely issued hooded
sweatshirts or coats cannot, without more, survive a motion to
dismiss because it does not indicate what type of harm Mr. Brown
actually suffered, if any, for how long he suffered it, and under
what circumstances it occurred. And as noted above, he does not
allege any type of injury from the other practices he challenged.
Thus, none of his Eight Amendment claims allege the type of
denial of the minimal necessities of life, or the wanton or
unnecessary infliction of pain, which rise to the level of
constitutional violations. The defendants are therefore entitled
to judgment on the pleadings.
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III.

The Motion for Injunctive Relief

Mr. Brown’s motion for injunctive relief appears to be
directed primarily to issues he has had, or is having, with cases
other than this one.

He refers specifically to interference with

a habeas case due to the confiscation of his legal materials back
in 2011, and his continued inability to amend his complaint in
Case No. 2:10-cv-965.

None of the issues raised in his complaint

in this case are addressed in the motion and, of course, he is no
longer subject to those conditions because he is no longer at the
London institution.
The Court recommends denying the motion.

In addition to the

fact that this case should be dismissed for the reasons set forth
above, the Court notes that “a party moving for a preliminary
injunction must necessarily establish a relationship between the
injury claimed in the party's motion and the conduct asserted in
the complaint.”

Colvin v. Caruso, 605 F.3d 282, 300 (6th Cir.

2010) (quoting Devose v. Herrington, 42 F.3d 470, 471 (8th
Cir.1994)).

“This is because ‘[t]he purpose of interim equitable

relief is to protect the movant, during the pendency of the
action, from being harmed or further harmed in the manner in
which the movant contends [he] was or will be harmed through the
illegality alleged in the complaint.’”

Colvin, 605 F.3d at 300,

quoting Omega World Travel, Inc. v. Trans World Airlines, 111
F.3d 14, 16 (4th Cir.1997); see also S. Milk Sales, Inc. v.
Martin, 924 F.2d 98, 102 (6th Cir. 1991), quoting University of
Texas v. Camenisch, 451 U.S. 390, 395 (1981).

There are

certainly exceptions to this rule for actions which make it
impossible for a party even to litigate the case at hand, but as
far as this action is concerned, that is not the situation
described in the motion.

Therefore, this motion should also be

denied.
IV.

Recommendation

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Based on the foregoing, it is recommended that the
defendants’ motion for judgment on the pleadings (#88) be granted
and that this case be dismissed.

It is further recommended that

Mr. Brown’s motion for a temporary restraining order and for a
preliminary injunction (#90) denied.
V.

Procedure on Objections

If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).

A judge

of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/Terence P. Kemp
United States Magistrate Judge

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