Charles E. Payne v. Department of Corrections et al

Filing 4

ORDER AND REPORT AND RECOMMENDATIONS: Motion for Leave to Proceed in forma pauperis 1 is GRANTED. It is ORDERED that Plaintiff be allowed to prosecute his action without prepayment of fees or costs. It is RECOMMENDED that the Court DISMISS Plainitt's Complaint for failure to state a claim - objections due w/in fourteen (14) days. Signed by Magistrate Judge Elizabeth Preston Deavers on 10/06/2011. (sr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CHARLES E. PAYNE,
Plaintiff,
Civil Action 2:11-cv-00831
Judge Edmund A. Sargus
Magistrate Judge E.A. Preston Deavers

v.

GARY MOHR, et al.,
Defendants.
ORDER AND REPORT AND RECOMMENDATION
I.
Plaintiff Michael Daugherty’s Motion for Leave to Proceed in forma pauperis under 28
U.S.C. § 1915(a)(1) and (2) (ECF No. 1) is GRANTED. Plaintiff is required to pay the full
amount of the Court’s $350 filing fee. 28 U.S.C. § 1915(b)(1).
Plaintiff's application reveals that he currently possesses the sum of $ 0.07 in his prison
account, which is insufficient to pay the full filing fee. His application indicates that his average
monthly balance for a six-month period prior to filing his application to proceed in forma
pauperis was $0.26. Such funds are insufficient to pay the entire filing fee.
Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff’s inmate trust account
(Account # A637780) at the London Correctional Institution is DIRECTED to submit to the
Clerk of the United States District Court for the Southern District of Ohio as an initial partial
payment, 20% of the greater of either the average monthly deposits to the inmate trust account or
the average monthly balance in the inmate trust account, for the six months immediately
preceding the filing of the Complaint.

After full payment of the initial, partial filing fee, the custodian shall submit 20% of the
inmate’s preceding monthly income credited to the account, but only when the amount in the
account exceeds $10.00 until the full fee of $350.00 has been paid to the Clerk of this Court. 28
U.S.C. § 1915(b)(2); see also McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
Checks should be made payable to: Clerk, United States District Court. The checks
should be sent to:
Prisoner Accounts Receivable
260 U.S. Courthouse
85 Marconi Boulevard
Columbus, Ohio 43215
The prisoner’s name and this case number must be included on each check.
It is ORDERED that Plaintiff be allowed to prosecute his action without prepayment of
fees or costs and that judicial officers who render services in this action shall do so as if the costs
had been prepaid.
II.
Having performed an initial screen of the Complaint required by 28 U.S.C. §§ 1915(e)(2)
and 1915A, it is RECOMMENDED that the Court DISMISS Plaintiff’s Complaint for failure
to state a claim.
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute seeking to
“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).
In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are
assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from
filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490
U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e) as part of the

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statute, which provides in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that-*

*

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(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or . . . .
28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31; see also 28 U.S.C. § 1915A
(requiring the Court to screen a prisoner’s complaint “as soon as practicable” and dismiss any
portion of a the complaint if it is frivolous, malicious, or fails to state a claim). Thus, § 1915(e)
and § 1915A require sua sponte dismissal of an action upon the Court’s determination that the
action is frivolous or malicious, or upon determination that the action fails to state a claim upon
which relief may be granted.
To properly state a claim upon which relief may be granted, a plaintiff must satisfy the
basic federal pleading requirements set forth in Fed. R. Civ. P. 8(a). See also Hill v. Lappin, 630
F.3d 468, 470–71 (6th Cir. 2010) (applying Fed. R. Civ. P. 12(b)(6) standards to review under 28
U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Although this pleading standard does not require
“‘detailed factual allegations,’ . . . [a] pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action,’” is insufficient. Ashcroft v. Iqbal, 566
U.S. ----, ----, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)). Furthermore, a complaint will not “suffice if it tenders ‘naked assertion[s]’
devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). Instead, to
survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a complaint must

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contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’” Id.
(quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. In considering whether this facial plausibility standard is met, a
Court must construe the complaint in the light most favorable to the non-moving party, accept all
factual allegations as true, and make reasonable inferences in favor of the non-moving party.
Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434
(6th Cir. 2008) (citations omitted).
Although Plaintiff does not explicitly label his claim, he appears to bring a claim
pursuant to 42 U.S.C. § 1983 for unconstitutional conditions of confinement in violation of the
Eighth Amendment. Plaintiff specifically maintains that while eating a meal in the dining hall he
noticed maggots in his food. He maintains that he later became sick and implies that he ingested
the insects.
It is well established that prison officials “must provide humane conditions of
confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter,
and medical care, and must take reasonable measures to guarantee the safety of the inmates.”
Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotations omitted). Nevertheless,
various federal courts, including the United States Court of Appeals for the Sixth Circuit in
which this Court sits, have suggested that a single incident of food contamination is insufficient
to establish a conditions of confinement claim. Smith v. Younger, 187 F.3d 638, 1999 WL
623355, at *2 (6th Cir. Aug. 9, 1999) (holding that the presence of a worm in the plaintiff’s food
failed to state a conditions of confinement claim); Green v. Atkinson, 623 F.3d 278, 281 (5th Cir.
2010) (“A single incident of food poisoning or finding a foreign object in food does not
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constitute a violation of the constitutional rights of the prisoner affected.”); Tucker v. Metts, No.
2:10-1316, 2011 WL 1085031, at *4 (D.S.C. Feb. 17, 2011) (“[T]he law is clear that a single
incidence of unintended food poisoning is not a constitutional violation.”).
In this case, the undersigned concludes that Plaintiff’s Complaint fails to state a claim
upon which relief may be granted. Plaintiff’s Complaint gives no indication that there have been
multiple instances of foreign objects in his food or otherwise inadequate food preparation.
Rather, Plaintiff bases his claim entirely on one incident. Additionally, Plaintiff has pled no
facts from which the Court could reasonably infer that the food contamination was intentional.
Consequently, while Plaintiff’s allegations certainly establish an unpleasant experience, they do
not rise to the level of a constitutional claim. It is therefore RECOMMENDED that the Court
DISMISS Plaintiff’s Complaint for failure to state a claim.
III.
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
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court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that a
defendant waived appeal of the district court’s denial of a pretrial motion by failing to timely
object to the magistrate judge’s report and recommendation). Even when timely objections are
filed, appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507
F.3d 981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails
to specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”)
(citation omitted)).

Date: October 6, 2011

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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