Nekic v. Burns et al
Filing
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MEMORANDUM AND ORDER; the plaintiff is ASSESSED the full filing of three-hundred, fifty dollars. The defendant Melanie Gregory is DISMISSED as a defendant in this lawsuit for plaintiff's failure to state a claim against her. The Clerk is DIRECTED to send plaintiff two service packets. Plaintiff is ORDERED to complete the service packet and return to the Clerk's office within twenty-one (21) days of the date of receipt of this Order. Signed by District Judge J Ronnie Greer on 10/23/12. (KDO)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at GREENEVILLE
PETER NEKIC
v.
STEVE BURNS, NEIL MATHEWS,
and MELANIE GREGORY
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NO. 2:12-cv-358
Greer/Inman
MEMORANDUM and ORDER
Acting pro se and requesting a jury trial, pretrial detainee Peter Nekic, brings this civil
rights action for monetary and injunctive relief under 42 U.S.C. § 1983, against Greene County
Sheriff Steve Burns, Greene County Detention Center [GCDC] Administrator Neil Mathews,
and a former inspector for the Tennessee Correctional Institution (TCI), Melanie Gregory.
Although plaintiff’s application to proceed in forma pauperis reflects a balance of zero (0) in
his inmate trust account, it remains that, as a prisoner, he is responsible for paying the filing
fee. 28 U.S.C. § 1915(b)(1).
Plaintiff therefore is ASSESSED the full filing fee of three-hundred, fifty dollars
($350.00). McGore v. Wrigglesworth, 114 F.3d 601, 607 (6th Cir. 1997) overruled on other
grounds by Jones v. Bock, 549 U.S. 199 (2007). However, because plaintiff is unable to pay
the full filing fee at this time, he shall pay the fee on an installment basis, when and if
sufficient funds become available. The custodian of plaintiff's inmate trust account at the
institution where he now resides is DIRECTED to submit to the Clerk of Court, twenty
percent (20%) of plaintiff's preceding monthly income credited to the account, but only when
the amount in the account exceeds ten dollars ($10), until the full $350 fee has been paid to the
Clerk. 28 U.S.C. § 1915(b)(2).
The Clerk is DIRECTED to mail a copy of this Order to the custodian of inmate trust
accounts at plaintiff's current place of confinement to ensure compliance with the assessment
procedures outlined herein. All payments should be sent to: Clerk's Office, USDC; 220 W.
Depot Street, Suite 200; Greeneville, TN 37743.
Plaintiff claims, in his complaint, that he was arrested on February 28, 2012, and
thereafter placed in the GCDC, which is 60 to 70% overcrowded, as reported in an article in
the Greeneville Sun on June 20, 2012. Thereafter, he was given “a piece of plastic and made
to sleep on a bare concrete floor in a cell designed for (4) inmates but housed (8),” (Compl. at
4). As Ground One of his pleading, plaintiff lists the general conditions which were imposed
on him in violation of his constitutional rights, of unidentified state and federal standards, and
of the unspecified guidelines for the treatment of pretrial detainees. Among those conditions
are:
(1)
holes in the roof/ceiling, resulting in flooding of the floors when it rains;
(2)
black mold growing on the walls; inmates must sleep on mats without stuffing;
(3)
lack of adequate soap and toilet paper; and
(4)
temperatures in the housing pod fluctuate between extremely cold and extremely hot.
Other conditions are asserted as separate grounds for relief. More specifically, as
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Ground Two, the challenged condition encompasses a lack of adequate sun light, fresh air and
recreation. Plaintiff asserts that, for nearly six months (February 28, 2012 - August 20, 2012),
he was allowed access to these three things only five times, for a period of 45 minutes to one
hour, when he was permitted to engage in “walking recreation” on a gym floor or an outdoor
roof pen, the latter of which measures 25' by 45' and, potentially, could have contained sixty
or more inmates. Plaintiff claims that this conditions identified in Ground Two have
contributed adversely to his unidentified mental health issues.
In Ground Three, plaintiff maintains that the GCDC lacks an adequate grievance
system, and in Ground Four, that the facility serves half cooked, cold, often outdated or spoiled
food, which lacks adequate nutrition. According to the complaint, a typical breakfast consists
of cold, flavorless flour gravy, two pieces of stale white bread, ½ pint of fat-free milk, one
boiled egg, and 2-3 tablespoons of canned fruit; lunch of two pieces of stale bread, one slice
of American cheese, cold water, and a small orange; and dinner of cold, half-cooked
unflavored soup beans and cabbage, cold, overcooked, soupy squash, and one cup of highlydiluted, powdered and usually lukewarm milk drink. Plaintiff questions the nutritional value
of these meals and believes they have contributed to his unidentified but declining physical and
mental health.
Ground Five contains allegations that plaintiff has been denied adequate medical care
for a serious medical condition, to wit, severe back (and arthritic) problems, which have
developed due to his being forced to sleep on a cold concrete floor on a thin piece of plastic,
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covered only by a blanket. Plaintiff unsuccessfully tried to speak to a nurse during medication
call, but was told that he must submit a “medical request.” He submitted such a request on
May 3 and May 9 of 2012, but no response was given. Plaintiff then signed up for “sick call”
on July 15, 2012, but likewise received no response. According to the complaint, “[t]he extent
of specific/ or chronic conditions suffered by plaintiff has yet to be determined,” (Compl. at
9).
To remedy the alleged wrongs purportedly visited upon plaintiff, he would have
defendants provide expert medical doctors to conduct a psychological examination on him to
determine the extent of his injuries and to pay him actual, compensatory, future and punitive
damages.
The Court now must screen the complaint to determine whether it should be dismissed
as frivolous, malicious or for failure to state a claim or because monetary damages are sought
from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2) and § 1915A. In
performing this task, the Court realizes the pleadings of pro se litigants must be liberally
construed and "held to less stringent standards than formal pleadings drafted by lawyers."
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106
(1976)). A complaint which contains only “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements,” is insufficient to state a claim for relief.
Ashcroft v. Iqbal, 552 U.S. 662, 678 (2009). Instead, the pleading must encompass “factual
content that allows the court to draw the reasonable inference that the defendant is liable for
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the misconduct alleged,” so as to clothe the claim in “facial plausibility.” Id.
At the outset, several of the grounds asserted for relief fail to state a constitutional
claim. In Ground Three, for example, plaintiff maintains that he filed grievances regarding
the subject conditions but received no response to his grievances, thus concluding that he was
denied his right to a grievance system. Prisoners, however, have “no constitutionally protected
due process interest in unfettered access to a prison grievance procedure.” Walker v. Michigan
Dept. of Corr., 128 Fed. Appx. 441, 445, 2005 WL 742743, *3 (6th Cir. Apr. 1, 2005) (listing
cases); see Adams v. Rich, 40 F.3d 72, 75 (4th Cir. 1994) (“[T]he Constitution creates no
entitlement to grievance procedures or access to any such procedure voluntarily established
by a state.”). This claim is DISMISSED for failure to state a claim.
Likewise, in Ground Four, plaintiff complains about the food, but his complaints largely
involve the poor quality of the food. Under the Eighth Amendment, prisoners must be
provided meals nutritionally sufficient to sustain their normal health. Cunningham v. Jones,
567 F.2d 653, 660 (6th Cir. 1977). While food served to inmates must be nutritionally
adequate, problems with the quality (i.e., temperature, etc.) of food, generally, are not of
constitutional magnitude. Thaddeus-X v. Blatter, 175 F.3d 378, 404-05 (6th Cir. 1999)
(Suhrheinrich, J., concurring in part and dissenting in part) (citing, inter alia, Cunningham, 567
F.2d at 660)). Plaintiff surmises that the nutritional content of the food he is served at the
GCDC is inadequate, but he has failed to indicate that he lost weight, developed any foodborne illness, or otherwise was sickened as a result of eating the food. Absent contentions
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such as these latter ones, there is nothing factual from which the Court can reasonably infer
that the food served to inmates at the GCDC falls below the constitutional nutritional or
sanitary floor. This claim is also DISMISSED for failure to state a claim.
In Ground Five, plaintiff indicates that he was denied medical care for a “severe back
(and arthritic) problem” caused by sleeping on the floor, though he also explains that it has yet
to be determined whether he has any “specific/or chronic conditions,” and though he requests
that a psychological examination be performed by expert medical doctors to determine the
extent of his injuries, (Compl. at 9-10).
A prisoner states a claim for the denial of medical care under the Eighth Amendment
by alleging prison officials were deliberately indifferent to his serious medical needs.1 Estelle
v. Gamble, 429 U.S. 97, 103 (1976). "Because society does not expect that prisoners will have
unqualified access to health care, deliberate indifference to medical needs amounts to an
Eighth Amendment violation only if those needs are serious." Hudson v. McMillian, 503 U.S.
1, 9 (1992) (internal punctuation and citation omitted). An objectively serious medical
condition is one that "has been diagnosed by a physician as mandating treatment or one that
is so obvious that even a lay person would perceive the need for a doctor's attention." Hayes
v. Snyder, 546 F.3d 516, 522 (7th Cir. 2008). To demonstrate deliberate indifference, an
inmate must show that the prison official knew of and disregarded an excessive risk to inmate
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A pretrial detainee, such as plaintiff, has a right to constitutional prison conditions through the Fourteenth
Amendment Due Process Clause, which is analogous to the Eighth Amendment rights of prisoners. See Watkins v. City
of Battle Creek, 273 F.3d 682, 685-86 (6th Cir. 2001). The Court will refer to the Eighth Amendment in the discussion
of this ground, since the same analysis applies under the Fourteenth Amendment.
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health or safety. Farmer v. Brennan, 511 U.S. at 835-840.
Even if the Court assumes that plaintiff’s alleged severe back problem presents a
serious medical need, see e.g., Estelle, 429 U.S. at 107 (presuming that prisoner’s contention
of severe back pain was sufficiently serious for Eighth Amendment purposes), there is no
evidence of deliberate indifference on the part of any named defendant. Farmer explains that
deliberate indifference is evidenced where a jail official “knows of and disregards an excessive
risk to inmate health or safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must also draw
the inference.” Farmer, 511 U.S. at 837. Here, there are no allegations of fact to suggest the
existence of the required knowledge (and hence, the culpable mental state) on the part of any
defendant (none of whom appear to be a provider of medical care at the GCDC) and, without
allegations addressing the subjective component of an Eighth Amendment claim, plaintiff's
medical claim falls short. Ground Five is likewise DISMISSED for failure to state a claim.
No allegations in the complaint connect defendant Melanie Gregory, whom plaintiff
describes as a former TCI Inspector, to the operation of the GCDC, much less to the claimed
unlawful conditions in that facility. Accordingly, she is DISMISSED as a defendant in this
lawsuit for plaintiff’s failure to state a claim against her.
Because the Court cannot say that the allegations encompassed in Grounds One and
Two are frivolous or malicious or that they fail to state a claim, they will be allowed to proceed
past the screening stage.
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Accordingly, the Clerk is DIRECTED to send plaintiff two service packets (each
containing a blank summons and SM 285 form) for the remaining defendants. Plaintiff is
ORDERED to complete the service packets and return them to the Clerk's Office within
twenty-one (21) days of the date of receipt of this Order. At that time the summonses will be
signed and sealed by the Clerk and forwarded to the U.S. Marshal for service. Fed. R. Civ. P.
4. Plaintiff is forewarned that failure to return the completed service packets within the time
required could jeopardize his prosecution of this action.
Defendants shall answer or otherwise respond to the complaint in the manner and
within the time required by the Federal Rules of Civil Procedure. Fed. R. Civ. P. 12.
Defendants’ failure to respond in a timely fashion to the complaint may result in entry of
judgment by default against them.
Plaintiff is ORDERED to inform the court and defendants, or their counsel of record,
immediately of any address changes. Failure to provide a correct address to this Court within
ten (10) days following any change of address will result in the dismissal of this action.
ENTER:
s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE
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