Hemingway v. Castillo et al

Filing 6

ORDER DISMISSING CASE. Signed by Judge S. Thomas Anderson on 3/28/2013. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

RICKY HEMINGWAY,
Plaintiff,
vs.
JUAN D. CASTILLO, et al.,
Defendants.

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No. 12-2390-STA-cgc

ORDER CORRECTING THE DOCKET
ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL
ORDER OF DISMISSAL
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

On May 23, 2012, Plaintiff Ricky Hemingway, Bureau of Prisons
(“BOP”)

register

number

91626-071,

an

inmate

at

the

Federal

Correction Institution in Memphis, Tennessee (“FCI Memphis”), filed
a pro se complaint pursuant to Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L.
Ed. 2d 619 (1971), accompanied by motions seeking leave to proceed
in forma pauperis and appointment of counsel. (ECF Nos. 1 & 3.)1 On
June 13, 2012, the Court granted leave to proceed in forma pauperis
and assessed the civil filing fee pursuant to the Prison Litigation
Reform Act of 1996 (“PLRA”), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 4.)

1
The Clerk is directed to remove the first two pages of ECF No. 1,
which is Plaintiff’s original in forma pauperis motion, and to docket those pages
as a separate document. The remainder of ECF No. 1 is the complaint.

The Clerk shall record the defendants as former FCI Memphis Warden
Juan D. Castillo, FCI Memphis Safety Manager D. Mayfield, and FCI
Memphis Facilities Manager D. Dosa. Each defendant is sued in his
or her individual and official capacities.
The Complaint alleges that Plaintiff slipped and fell in the
shower on April 22, 2011, injuring his wrist, back, and leg.
(Compl. ¶ 1.) The shower was not equipped with safety holding
rails, a handicap seat, or slip or skid mats or strips. (Id. ¶ 2.)
Defendants knew or should have known about the hazardous condition
of the shower stalls because of prior complaints. (Id. ¶ 3.)
Plaintiff now suffers from chronic pain and also has “a strong fear
or mental phobia of falling each time he gets into the showers.”
(Id. ¶ 4.) Plaintiff seeks money damages in the amount of $330,000.
(Id., “Relief Sought.”)
The Court is required to screen prisoner complaints and to
dismiss any complaint, or any portion thereof, if the complaint—
(1) is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is
immune from such relief.
28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
In assessing whether the complaint in this case states a claim
on which relief may be granted, the Court applies the standards
under Federal Rule of Civil Procedure 12(b)(6), as stated in
Ashcroft v. Iqbal, 556 U.S. 662, 677-79, 129 S. Ct. 1937, 1949-50
(2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 55557, 127 S. Ct. 1955, 1964-66, 167 L. Ed. 2d 929 (2007). Hill v.
2

Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). “Accepting all wellpleaded allegations in the complaint as true, the Court consider[s]
the factual allegations in [the] complaint to determine if they
plausibly suggest an entitlement to relief.” Williams v. Curtin,
631 F.3d 380, 383 (6th Cir. 2011) (internal quotation marks and
alteration omitted). “[P]leadings that . . . are no more than
conclusions are not entitled to the assumption of truth. While
legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations.” Iqbal, 556 U.S. at 679,
129 S. Ct. at 1950; see also Twombly, 550 U.S. at 555 n.3, 127 S.
Ct. at 1964-65 n.3 (“Rule 8(a)(2) still requires a ‘showing,’
rather than a blanket assertion, of entitlement to relief. Without
some factual allegation in the complaint, it is hard to see how a
claimant could satisfy the requirement of providing not only ‘fair
notice’ of the nature of the claim, but also ‘grounds’ on which the
claim rests.”).
“A complaint can be frivolous either factually or legally. Any
complaint that is legally frivolous would ipso facto fail to state
a claim upon which relief can be granted.” Hill, 630 F.3d at 470
(citing Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827,
1831-32, 104 L. Ed. 2d 338 (1989)).
Whether a complaint is factually frivolous under §§
1915A(b)(1) and 1915(e)(2)(B)(i) is a separate issue from
whether it fails to state a claim for relief. Statutes
allowing a complaint to be dismissed as frivolous give
“judges not only the authority to dismiss a claim based
on an indisputably meritless legal theory, but also the
unusual power to pierce the veil of the complaint’s
factual allegations and dismiss those claims whose
factual contentions are clearly baseless.” Neitzke, 490
3

U.S. at 327, 109 S. Ct. 1827 (interpreting 28 U.S.C. §
1915). Unlike a dismissal for failure to state a claim,
where a judge must accept all factual allegations as
true, Iqbal, 129 S. Ct. at 1949-50, a judge does not have
to accept “fantastic or delusional” factual allegations
as true in prisoner complaints that are reviewed for
frivolousness. Neitzke, 490 U.S. at 327-28, 109 S. Ct.
1827.
Id. at 471.
“Pro se complaints are to be held ‘to less stringent standards
than formal pleadings drafted by lawyers,’ and should therefore be
liberally construed.” Williams, 631 F.3d at 383 (quoting Martin v.
Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants and
prisoners are not exempt from the requirements of the Federal Rules
of Civil Procedure. As the Sixth Circuit has explained:
Before the recent onslaught of pro se prisoner
suits, the Supreme Court suggested that pro se complaints
are to be held to a less stringent standard than formal
pleadings drafted by lawyers. See Haines v. Kerner, 404
U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972) (per
curiam). Neither that Court nor other courts, however,
have been willing to abrogate basic pleading essentials
in pro se suits. See, e.g., id. at 521, 92 S. Ct. at 596
(holding petitioner to standards of Conley v. Gibson);
Merritt v. Faulkner, 697 F.2d 761 (7th Cir.) (duty to be
less stringent with pro se complaint does not require
court to conjure up unplead allegations), cert. denied,
464 U.S. 986, 104 S. Ct. 434, 78 L. Ed. 2d 3366 (1983);
McDonald v. Hall, 610 F.2d 16 (1st Cir.1979) (same);
Jarrell v. Tisch, 656 F. Supp. 237 (D.D.C. 1987) (pro se
plaintiffs should plead with requisite specificity so as
to give defendants notice); Holsey v. Collins, 90 F.R.D.
122 (D. Md. 1981) (even pro se litigants must meet some
minimum standards).
Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown
v. Matauszak, 415 F. App’x 608, 612, 613 (6th Cir. 2011) (affirming
dismissal of pro se complaint for failure to comply with “unique
pleading requirements” and stating “a court cannot ‘create a claim

4

which [a plaintiff] has not spelled out in his pleading’”) (quoting
Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th
Cir. 1975)) (alteration in original); Payne v. Secretary of Treas.,
73

F.

App’x

836,

837

(6th

Cir.

2003)

(affirming

sua

sponte

dismissal of complaint pursuant to Fed. R. Civ. P. 8(a)(2) and
stating, “[n]either this court nor the district court is required
to create Payne’s claim for her”); cf. Pliler v. Ford, 542 U.S.
225, 231 (2004) (“District judges have no obligation to act as
counsel or paralegal to pro se litigants.”); Young Bok Song v.
Gipson, 423 F. App’x 506, 510 (6th Cir. 2011) (“[W]e decline to
affirmatively require courts to ferret out the strongest cause of
action on behalf of pro se litigants. Not only would that duty be
overly burdensome, it would transform the courts from neutral
arbiters of disputes into advocates for a particular party. While
courts are properly charged with protecting the rights of all who
come before it, that responsibility does not encompass advising
litigants as to what legal theories they should pursue.”), cert.
denied, ___ U.S. ___, 132 S. Ct. 461, 181 L. Ed. 2d 300 (2011).
Plaintiff’s claims arise under Bivens, which provides a right
of action against federal employees who violate an individual’s
rights under the United States Constitution. “Under the Bivens line
of cases, the Supreme Court has recognized a cause of action
against federal officials for certain constitutional violations
when there are no alternative processes to protect the interests of
the plaintiff and no special factors counseling against recognizing

5

the cause of action.” Koubriti v. Convertino, 593 F.3d 459, 466
(6th Cir. 2010).
Plaintiff’s

claims

against

Defendants

in

their

official

capacities are barred by sovereign immunity. “Official-capacity
suits . . . generally represent only another way of pleading an
action against an entity of which an officer is an agent.” Ky. v.
Graham, 473 U.S. 159, 165, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114
(1985) (internal quotation marks omitted). The United States has
not waived its immunity to suits asserting Bivens claims. Fagan v.
Luttrell, No. 97-6333, 2000 WL 876775, at *3 (6th Cir. June 22,
2000) (“Bivens claims against the United States are barred by
sovereign immunity. The United States has not waived its immunity
to suit in a Bivens action.”) (citation omitted); Miller v. Fed.
Bureau of Investigation, No. 96-6580, 1998 WL 385895, at *1 (6th
Cir. July 1, 1998) (“the doctrine of sovereign immunity precludes
a Bivens action against a federal agency for damages”); Lundstrum
v. Lyng, 954 F.2d 1142, 1146 (6th Cir. 1991) (“A Bivens action may
not be maintained against the United States.”). Any Bivens suit
against Defendants in their official capacities is barred by
sovereign immunity. Center v. Bio-Ethical Reform, Inc. v. City of
Springboro, 477 F.3d 807, 820 (6th Cir. 2007) (“By extension,
sovereign immunity also protects the officers and agents of the
United

States

from

suit

in

their

official

capacities.”);

Ecclesiastical Order of the Ism of Am, Inc. v. Chasin, 845 F.2d
113, 115 (6th Cir. 1988) (per curiam) (“[T]he bar of sovereign

6

immunity cannot be avoided simply by naming officers and employees
of the United States as defendants.”).
Plaintiff’s claims arise under the Eighth Amendment, which
prohibits cruel and unusual punishments. See generally Wilson v.
Seiter, 501 U.S. 294, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991). An
Eighth Amendment claim consists of both objective and subjective
components. Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970,
1977, 128 L. Ed. 2d 811 (1994); Hudson v. McMillian, 503 U.S. 1, 8,
112 S. Ct. 995, 999, 117 L. Ed. 2d 156 (1992); Wilson, 501 U.S. at
298, 111 S. Ct. at 2324; Williams v. Curtin, 633 F.3d at 383;
Mingus v. Butler, 591 F.3d 474, 479-80 (6th Cir. 2010). The
objective component requires that the deprivation be “sufficiently
serious.” Farmer, 511 U.S. at 834, 114 S. Ct. at 1977; Hudson, 503
U.S. at 8, 112 S. Ct. at 999-1000; Wilson, 501 U.S. at 298, 111 S.
Ct. at 2324.
To satisfy the objective component of an Eighth Amendment
claim,

a

prisoner

must

show

that

he

“is

incarcerated

under

conditions posing a substantial risk of serious harm,” Farmer, 511
U.S. at 834, 114 S. Ct. at 1977; see also Miller v. Calhoun Cnty.,
408 F.3d 803, 812 (6th Cir. 2005), or that he has been deprived of
the “‘minimal civilized measure of life’s necessities,’” Wilson,
501 U.S. at 298, 111 S. Ct. at 2324 (quoting Rhodes v. Chapman, 452
U.S. 337, 347, 101 S. Ct. 2392, 2399, 69 L. Ed. 2d 59 (1981)); see
also Hadix v. Johnson, 367 F.3d 513, 525 (6th Cir. 2004). The
Constitution “‘does not mandate comfortable prisons.’” Wilson, 501
U.S. at 298, 111 S. Ct. at 2324 (quoting Rhodes, 452 U.S. at 349,
7

101 S. Ct. at 2400). “[R]outine discomfort ‘is part of the penalty
that criminal offenders pay for their offenses against society.’”
Hudson, 503 U.S. at 9, 112 S. Ct. at 1000 (quoting Rhodes, 452 U.S.
at 347, 101 S. Ct. at 2399). Thus, “extreme deprivations are
required to make out a conditions-of-confinement claim.” Id.
That the floor of the shower in Plaintiff’s housing unit was
slippery does not satisfy the objective component of an Eighth
Amendment violation. As another district court in this district has
explained:
Federal courts have routinely held that wet and
slippery prison floors, while potentially hazardous, do
not amount to the denial of the minimal civilized measure
of life’s necessities. See, e.g., Reynolds v. Powell, 370
F.3d 1028, 1031 (10th Cir. 2004) (holding that “slippery
floors constitute a daily risk faced by members of the
public at large” and do not amount to cruel and unusual
punishment); LeMaire v. Maass, 12 F.3d 1444, 1457 (9th
Cir. 1993) (finding that wet prison floors did not create
a sufficiently serious condition to violate the Eighth
Amendment, and noting that “slippery prison floors ... do
not state even an arguable claim for cruel and unusual
punishment”); Denz v. Clearfield County, 712 F. Supp. 65,
66 (W.D. Pa. 1989) (finding no Eighth Amendment violation
based on slippery floor in prison cell); Mitchell v. West
Virginia, 554 F. Supp. 1215, 1216-17 (N.D. W. Va. 1983)
(finding no Eighth Amendment violation based on slippery
floor in prison dining hall).
Stubl v. Baraga Maximum Corr. Facility, No. 2:08-CV-10, 2008 WL
4813403,

at

*6

(W.D.

Mich.

Oct.

30,

2008)

(report

and

recommendation adopted by the district court); see also Ward v. Ky.
State Reformatory, Civil Action No. 3:09-CV-315-H, 2011 WL 2378172,
at *5 (W.D. Ky. June 15, 2011) (“Federal courts have routinely held
that slippery prison floors do not pose a substantial risk of
serious harm to give rise to an Eighth Amendment violation.”)

8

(internal quotation marks and citations omitted); Mills v. C.C.A.,
No. 1:10-0015, 2010 WL 5155478, at *4 (M.D. Tenn. Dec. 14, 2010)
(“Courts have regularly held that slip and fall accidents do not
give

rise

to

federal

causes

of

action.”)

(report

and

recommendation), adopted, 2011 WL 13552 (M.D. Tenn. Jan. 4, 2011);
Amos v. Parker, No. 11-1160-JDT-egb, slip op. at 6-7 (W.D. Tenn.
Aug. 30, 2010); Jackson v. Shelby Cnty., No. 09-2728-JDT-dkv, slip
op. at 8 (W.D. Tenn. Nov. 25, 2009), aff’d, No. 10-5008 (6th Cir.
July 9, 2010); Dennis v. Shelby Cnty., No. 09-2516-JDT-tmp, slip
op. at 8-9 (W.D. Tenn. Nov. 25, 2009), aff’d, No. 09-6515 (6th Cir.
July 28, 2010); Coffelt v. Mich. Dep’t of Corr., No. 1:08-CV-333,
2008 WL 2559252, at *5 (W.D. Mich. June 20, 2008) (report and
recommendation adopted by district court).
To establish the subjective component of an Eighth Amendment
violation, a prisoner must demonstrate that the official acted with
the requisite intent, that is, that he had a “sufficiently culpable
state of mind.” Farmer, 511 U.S. at 834, 114 S. Ct. at 1977; see
also Wilson v. Seiter, 501 U.S. at 302-03, 111 S. Ct. at 2326. The
plaintiff

must

show

that

the

prison

officials

acted

with

“deliberate indifference” to a substantial risk that the prisoner
would suffer serious harm. Farmer, 511 U.S. at 834, 114 S. Ct. at
1977; Wilson, 501 U.S. at 303, 111 S. Ct. at 2326-27; Helling v.
McKinney, 509 U.S. 25, 32, 113 S. Ct. 2475, 2480, 125 L. Ed. 2d 22
(1993); Woods v. Lecureux, 110 F.3d 1215, 1222 (6th Cir. 1997);
Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir.

1996);

Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 79 (6th Cir. 1995).
9

“[D]eliberate

indifference

describes

a

state

of

mind

more

blameworthy than negligence.” Farmer, 511 U.S. at 835. Thus,
[a] prison official cannot be found liable under the
Eighth Amendment for denying an inmate humane conditions
of confinement unless the 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.
This approach comports best with the text of the Eighth
Amendment as our cases have interpreted it. The Eighth
Amendment does not outlaw cruel and unusual “conditions”;
it outlaws cruel and unusual “punishments.” An act or
omission unaccompanied by knowledge of a significant risk
of harm might well be something society wishes to
discourage, and if harm does result society might well
wish to assure compensation. The common law reflects such
concerns when it imposes tort liability on a purely
objective basis. But an official’s failure to alleviate
a significant risk that he should have perceived but did
not, while no cause for commendation, cannot under our
cases be condemned as the infliction of punishment.
Id.

at

837-38

(emphasis

added;

citations

omitted);

see

also

Garretson v. City of Madison Heights, 407 F.3d 789, 796 (6th Cir.
2005) (“If the officers failed to act in the face of an obvious
risk of which they should have known but did not, then they did not
violate the Fourteenth Amendment.”).
The Complaint does not adequately allege that Defendants were
deliberately indifferent to the risk that inmates might slip in the
shower. That they might have been aware of previous incidents
suggests only negligence rather than deliberate indifference. Kirby
v. Ky. Corr. Psychiatric Ctr., No. 98-6419, 1999 WL 1021736, at *2
(6th Cir. Nov. 2, 1999) (“Defendants acted, at most, with mere
negligence or lack of due care by failing to provide shower mats or
railing. However, mere negligence is insufficient to establish an

10

Eighth Amendment claim.”); Graham v. Poole, 476 F. Supp. 2d 257,
260 (W.D.N.Y. 2007) (“Although plaintiff alleges that defendants
were aware of the dangerous condition of the shower floor, and
failed to rectify it, that amounts to nothing more than negligence,
and is not enough to establish an Eighth Amendment claim . . . .
Again, all that plaintiff has alleged is that defendants failed to
exercise due care in not installing non-slip mats in the shower.
That is not enough.”) (citation omitted).
Therefore, the Court DISMISSES the complaint for failure to
state a claim on which relief may be granted, pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1). The Court also DISMISSES the
claims against Defendants in their official capacities pursuant to
28 U.S.C. §§ 1915(e)(2)(B)(iii) and 1915A(b)(2), as seeking money
damages from a party who is immune from that relief. The motion for
appointment of counsel is DENIED as moot. Judgment shall be entered
for Defendants.
The Court must also consider whether Plaintiff should be
allowed to appeal this decision in forma pauperis, should he seek
to do so. When an appellant seeks to proceed in forma pauperis on
appeal, the United States Court of Appeals for the Sixth Circuit
requires that all district courts in the circuit determine whether
the appeal would be frivolous. Twenty-eight U.S.C. § 1915(a)(3)
provides that “[a]n appeal may not be taken in forma pauperis if
the trial court certifies in writing that it is not taken in good
faith.”

11

The good faith standard is an objective one.

Coppedge v.

United States, 369 U.S. 438, 445 (1962). The test under 28 U.S.C.
§ 1915(a) for whether an appeal is taken in good faith is whether
the litigant seeks appellate review of any issue that is not
frivolous. Id. It would be inconsistent for a district court to
determine that a complaint should be dismissed prior to service on
the defendants, but has sufficient merit to support an appeal in
forma pauperis. See Williams v. Kullman, 722 F.2d 1048, 1050 n.1
(2d Cir. 1983). The same considerations that lead the Court to
dismiss this case for failure to state a claim also compel the
conclusion that an appeal would not be taken in good faith. It is
therefore CERTIFIED, pursuant to 28 U.S.C. § 1915(a)(3), that any
appeal in this matter by Plaintiff would not be taken in good faith
and Plaintiff may not proceed on appeal in forma pauperis. Leave to
proceed on appeal in forma pauperis is, therefore, DENIED.
If Plaintiff appeals the dismissal of this case, the Court is
required to assess the $455 appellate filing fee. In McGore v.
Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997), the Sixth
Circuit set out specific procedures for implementing the PLRA, 28
U.S.C. §§ 1915(a)-(b). Therefore, Plaintiff is instructed that, if
he wishes to take advantage of the installment procedures for
paying the appellate filing fee, he must comply with the procedures
set out in McGore and 28 U.S.C. § 1915(b).
For analysis under 28 U.S.C. § 1915(g) of future filings, if
any, by Plaintiff, this is the first dismissal of one of his cases
as frivolous or for failure to state a claim. This “strike” shall
12

take effect, without further action by the Court, upon expiration
of the time for filing a notice of appeal, the dismissal of any
appeal, or the affirmation of this Court’s decision on appeal,
whichever is later.
IT IS SO ORDERED this 28th day of March, 2013.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE

13