Brizuela v. Immigration Centers of America et al

Filing 4

MEMORANDUM OPINION AND ORDER- it is hereby ORDERED that this action be and is DISMISSED WITH PREJUDICE for failure to state a claim, pursuant to 28 U.S.C. § 1915A(b)(l); and it is further ORDERED that plaintiff's application to proceed i n forma pauperis 2 be and is DENIED as moot; and it is further ORDERED that plaintiff is advised that, pursuant to 28 U.S.C. § 1915(g), this dismissal may affect his ability to proceeding forma pauperis in future civil actions; and it is further ORDERED that the Clerk record this dismissal for purposes of the Prison Litigation Reform Act. Signed by District Judge Claude M. Hilton on 12/8/2016. (dest )(copy sent as directed in the Order)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

Ismael Brizuela,
Plaintiff,

V.

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)
)
)

Immigration Centers of America, ^ aL,
Defendants.

)
)
)

l:15cvl662 (CMH/IDD)

MEMORANDUM OPINION AND ORDER

Ismael Brizuela was an ICE detainee confined at the Farmville Detention Center when he

filed this pro se civil rights action, pursuant to 42 U.S.C. § 1983, alleging that two instances of
being served contaminated food violated his Eighth Amendment rights, and that he suffered
retaliation after he complained. Plaintiff has now filed a change of address to what appears to be
a residence in Texas. Plaintiff has neither submitted the filing fee required by 28 U.S.C. §
1914(a) nor applied to proceed in forma pauperis in this action. For the reasons which follow,

plaintiffs claims will be dismissed pursuant to 28 U.S.C. § 1915A(b)(l) for failure to state a

claim upon which relief can be granted.'

' Section 1915A provides:
(a) Screening.—The court shall review, before docketing, iffeasible or, in any event,
as soon as practicable after docketing, a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
(b) Grounds for dismissal.—On review, the court shall identify cognizable claims
or dismiss the complaint, or any portion of the complaint, if the complaint—
(1) is frivolous, malicious, or fails to state a claim upon which relief
can be granted; or
(2) seeks monetary relieffrom a defendant who is immune from such
relief
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1. Plaintiffs Allegations

Plaintiff alleges that he has consumed rice virtuallyon a daily basis since he was "a little
boy in the mid 1960's," but "on 02/21/2015 everything changed" when he and his fellow
detainees at the Farmville Detention Center ("FDC") were served "rotten maggot infested food."
(Dkt. 1, Aff. of Facts at

2, 4) Plaintiff asserts that this incident has left him unable to eat rice,

because he "began experiencing excruciating nightmares about maggots in [his] food" in which
he "feel[s] that rice [he] ha[s] eaten was not actually rice but maggots," his "whole body is being

used as a breeding ground for maggots," and he "feels like [he is] being eaten alive by those
maggots from the inside out." As a result, he is "now leaving [sic] in a new world that [he] don't
wish on anybody." Id, ^ 6. Plaintiff alleges that he "vividly gets flashbacks every day" when

food trays are served," he has "started to experience frequent nightmares," and he suffers from
post-traumatic stress disorder as the result of "the maggot incident." Compl. at

31-35.

In a second incident, plaintiff found "a rock the size of a bean in his food tray" a few days

after the "maggot scandal." Compl. at ^ 25. He submitted a detainee request form regarding the

incident on February 25, 2015, in which he stated, "I could have gotten hurt had I bitten that
rock." Compl., Ex. 5. Officer R. Davila responded that "ICE, as well as ICA ... are making
every effort to ensure it does not happen again." Id.

Following the two food incidents, plaintiff allegedly was "targeted" by FDA's Chief of
Security, Mr. Kingery. "In obvious retaliation," Mr. Kingery moved plaintiff from Dorm #1 to
Dorm #5 and then to Dorm #3, where plaintiff was housed v^th Marvin Jones, who had assaulted

plaintiffs nephew a few days earlier. Plaintiffchracterizes this as "a calculated decision to place
the plaintiff, who is a 55 year old frail man in the same room with this big and muscular

aggressive young man" that"deliberately exposed his lifeto grave harm." He asserts that it

amounted to "reckless endangerment to his life." Compl. at

28-30.

The named defendants are Immigration Centers of America LLC; "the eight secret owners

of ICA;" Trinity Food Services; Jeffrey Crawford, the Director of FDA; and Douglas Kingery,

the Chief of Training and for Chief of Security at FDA. As relief, plaintiff seeks declaratory and
injunctive relief, as well as monetary damages in an aggregate amount of $ 3,040,000.00.
11. Standard of Review

In reviewing a complaint pursuant to § 1915A, a court must dismiss a prisoner complaint
that is frivolous, malicious, or fails to state a claim upon which relief can be granted. 28 U.S.C.

§ 1915A(b)(l). Whether a complaint states a claim upon which relief can be granted is
determined by "the familiar standard for a motion to dismiss under Fed. R. Civ. P. 12(b)(6)."
Sumner v. Tucker. 9 F. Supp. 2d 641, 642 (E.D. Va. 1998); Hishon v. King & Spaldine. 467 U.S.
69, 73 (1984). To survive a 12(b)(6) motion, "a complaint must contain sufficient factual
matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal.
556 U.S. —, —, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twomblv. 550

U.S. 544, 570 (2007)). "A claim has facial plausibility 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. However, "[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice" to meet this standard, id., and a

plaintiffs "[f]actual allegations must be enough to raise a right to relief above the speculative
level...". Twomblv. 550 U.S. at 55. Moreover, a court "is not bound to accept as true a legal

conclusion couched as a factual allegation." Iqbal. 129 S. Ct. at 1949-1950.

Courts may also consider exhibits attached to the complaint. United States ex rel.
Constructors. Inc. v. Gulf Ins. Co.. 313 F. Supp. 2d 593, 596 (E.D. Va. 2004). Where a conflict

exists between "the bare allegations of the complaintand any attached exhibit, the exhibit
prevails." Id. at 596 (citing Favetteville Investors v. Commercial Builders. Inc.. 936 F.2d 1462,
1465 (4th Cir.1991)).
III. Analysis
A. Food Claims

As to the incident where plaintiff allegedly discovered a rock in his food, it is well settled
that "inmates must be provided nutritionally adequate food, 'prepared and served under
conditions which do not present an immediate danger to the health and well being of the inmates
who consume it.'" Shrader v. White. 761 F.2d 975,986 (4th Cir. 1985) (citations omitted); see
Holding v. Holshouser. 575 F.2d 461,465 (4th Cir.), cert, denied. 439 U.S. 837 (1978)

(concluding inmate's allegation of failure to provide adequate sanitary food service facilities can
state a cognizable claim). Although the Eighth Amendment requires prisons to provide inmates

with wholesome and nutritious meals, an inmate must allege a serious injury arising from the

provision of inadequate food to state an Eighth Amendment violation.^ Wilson v. Seiter. 501
U.S. 294, 298 (1991); White v. Gregory. 1 F.3d 267,268 (4th Cir. 1993), cert, denied. 510 U.S.

1096 (1994) (concluding that plaintiff failed to state a claim because he failed to allege "serious

or significant physical or mental injury" from being served only two meals a day on holidays and

weekends); Islam v. Jackson. 782 F. Supp. 111,114-115 (E.D. Va. 1992) (holding that plaintiff

^Plaintiffspecifically brings hisclaims regarding thefood incidents at FDC as Eighth Amendment
violations. It is unclear whether the Eighth Amendment is applicable, since plaintiff is an
immigrationdetaineewhose detentionmayor may notalso involvea criminalconviction. Ifplaintiff
is a non-criminal immigration detainee, his claims are governed by the Due Process Clause of the
Fourteenth Amendment. However, it is well established that the due process rights of a detainee

are at leastas greatas the Eighth Amendment protections available to a convicted prisoner. Slade
V. Hampton Roads Regional Jail. 407 F.3d 243, 250 (4th Cir. 2005). Therefore, the Eighth
Amendment standards are used for analytical purposes here.

who became ill after eating one meal but was treated immediatelyand suffered no lasting affects
did not state a serious injury); Lunsford v. Reynolds. 376 F. Supp. 526 (W.D. Va. 1974)

(determining that a claim of occasional incidentsof foreign objects in food does not state Eighth
Amendment claim). Here, it is clear that plaintiff suffered no injury whatever, much less a

serious one, as the result of finding the rock in his food. That is so because he stated on the
institutional grievance he filed regarding the incident only that he "could have gotten hurt had
[he] bitten that rock." Compl., Ex. 5. Therefore, plaintiffs claim of unconstitutional conditions
of confinement based on his discovery of a rock in his food will be dismissed pursuant to §

1915A(b)(l) for failure to state a claim upon which relief can be granted.
In a second claim related to food service at FDA, plaintiff states that on February 21,

2015, he ingested rice that was infested with maggots, and that as a result he experiences
nightmares, migraines, "mental torture and anguish," and itchy skin, and his "mind is now
messed up." Pltf Aff, f 6. While these allegations of ongoing mental and physical problems

relating to the ingestion of the contaminated rice otherwise could be sufficient to state an Eighth

Amendment claim, plaintiff has included exhibits to the complaint that make it clear that none of
the named defendants can be liable for the harm he alleges.
First, the exhibits plaintiff has supplied belie his allegations that the rice in question was

infested with maggots. In fact, when the exhibits are considered, as they appropriately may be,
Gulf Ins. Co.. 313 F. Supp. at 596, they reveal that there were no maggots in the rice. On

February26,2015, Director Crawford addresseda memorandum to FDA's detainee population
regarding the incident. In pertinent part, it stated:

As you all may know this past weekend,there were severalportioned
trays served during the dinner meal on Saturdaythat contained larva
of some kind; the vast majority of the dorms were not affected. As
the director of the facility I take such matters extremely seriously. I

ordered a complete investigationinto the problem. That investigation
is in the final stages and has revealed evidence oftampering with the
food by detainees who worked in the kitchen.
Immediately following the compromised meal, a food service
investigator was brought to the facility on Sunday. The investigator
performed tests on every product used in the meal served on Saturday
night. Several trays from Saturday night were also preserved as
evidence and used for testing. Tests of all the ingredients revealed
that there was no contamination in any of the ingredients used. Our
investigation has concluded that a detainee, or group of detainees,
planted the larva on the food trays in the kitchen.
A few detainees alleged that the kitchen personnel used expired food
to make up the meal from Saturday night. As part of the
investigation, that allegation was also investigated. There were no
expired food or food products found in the kitchen inventory.
Additionally the facility had an unannounced routine inspection from
the county health department on Thursday, February 19,2015. Had
any expired foods been present, the health department inspector
would have cited the facility for a violation. The county health
inspector found one deficiency in the kitchen related to a crack in the
floor for safety concerns. There were no other violations reported by
this independent inspector.

Compl., Ex. 2. Director Crawford further observed that "a few detainees within the population...

are trying to degrade the reputation of this facility" by "leveling accusations against this facility
that are not based in any reality." Id
Plaintiff has also included a copies of detainee request forms he submitted regarding the
incident. On March 21,2015, plaintiff stated to Deputy Jackson that "we haven't had an

explanation as to what happened or how it happened." The deputy responded, "First there were

no maggots in the food. [Emphasis added] SecondlyMr. Crawford indicatedthat during the

beginning of the investigation the evidence suggested product tampering by a detainee. Lastly

the investigation has beencompleted. The situation was corrected. And it is our responsibility to

hold the responsible party(s) accountable not yours." Compl. Ex. 3(b). On March 26, 2015,
plaintiff addressed a detainee request to Director Crawford, stating that he was experiencing
"nightmares about that horrible episode" and stated that "we haven't had no explanation as to
what happened or how it happened." Director Crawford responded, "Detainee BRIZUELAMARCIA, you've been informed several times about this incident, the outcome of the
investigation, and the fact that there were no maggots in the food. [Emphasis added] I am
surprised you continue to submit requests asking the same questions." Compl. Ex. 3(a).

On March 27,2015, Officer R. Davila responded to a detainee request form by stating
to plaintiff that "it was a very unfortunate incident that occurred in the kitchen. It was [illegible]
error or fault of anyone who worked in the kitchen, but appears that way at first. It turned out to
be a bad batch of Beef Soup Base Mix that was contaminated at the manufacturer. Item,

[illegible] and Lot # have all been provided." Compl., Ex. 4.
Second, even if the rice had been infested with vermin, as plaintiff claims, he has
submitted another exhibit that belies his claim that the symptoms he describes were caused by

ingestion of the allegedly contaminated rice. On a Mental Health Rounds contact form dated
September 9,2015, Wayne O'Brien, Ph.D., LPN referred plaintiff to see a psychiatrist. Under

"Nature of Problem, he wrote: "Nightmares. 'Awake - he believes see rice move a see varmints.'

Tears are 'about the injustice he experiences here.' Sadness. Lockedup for over 6 years - 5 of
those in jail. He said, 'I feel like I'm being tortured for something I didn't do.' Complains about

many people/system. They 'moved him from dormto dorm.' No solutions. 'Worried about his
case - trying to overturn former conviction.' Children, 3 grandchildren. EU psychiatrist on 9-2815." Compl., Ex. 10 at 7. The doctor's notes indicate that while plaintiffdid mention having

hallucinations of seeing things in his food, id, his nightmares and depression were linked instead
to his general circumstances of being incarcerated and concerned about his family as opposed to
the ingestion of the rice. Thus, as plaintiffs exhibits contradict his allegations that his ongoing

mental and physical problems were caused by eating the rice, he fails to satisfy the requirement
that a serious injury must have resulted from the provision of inadequate food to state an Eighth
Amendment violation. Wilson. 501 U.S. at 298. Accordingly, plaintiffs claim that his

constitutional rights were violated by the food he received at FDC fails to state a claim for which
relief can be granted.
B. Retaliation/Endangerment

As to plaintiffs allegations concerning his transfer to the same cell as inmate Marvin
Jones, plaintiff characterizes that action as both retaliation and reckless disregard of his safety by

defendant Mr. Kingery. To the extent that plaintiff claims retaliation, to succeed on such a claim
an inmate must allege facts sufficient to demonstrate that the alleged retaliatory act "was taken in
response to the exercise of a constitutionally protected right or that the act itself violated such a
right." Adams v. Rice. 40 F.3d 72, 75 (4th Cir. 1994). Thereafter, he must demonstrate that he

suffered some adverse impact or actual injury. ACLU of Md.. hic. v. Wicomico Countv. Md..
999 F.2d 780, 785 (4th Cir. 1993). Additionally, an inmate must come forward with specific

evidence "establish[ing] that but for the retaliatory motive, the complained of incident... would
not have occurred." Woods v. Smith. 60 F.3d 1161,1166 (5th Cir. 1995). It is apparent that

plaintiff in this case cannot satisfy these elements, because he suffered no actual injury as the
result of the transfer to Jones' cell; instead, he states only that he "could have been" bullied,

beaten or even killed by Jones. Compl. at 5. Furthermore, plaintiff does not allege that the

transfer occurred in response to the exercise of a constitutionally protected right; rather, he states

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that it happened because plaintiff was "asking questions about the dangerous environment that he
was being subjected to." Id Accordingly, plaintiff states no actionable claim for retaliation.
To the extent that plaintiff characterizes his transfer to Marvin Jones' cell as

endangerment, it fares no better. The Eighth Amendment imposes a duty on prison officials "to
protect prisoners from violence at the hands of other prisoners." Farmer v. Brennan. 511 U.S.
825, 834 (1994); Wilson v. Seiter. 501 U.S. 294,198 (1991). However, not "every injury

suffered by one prisoner at the hands of another translates into constitutional liability for prison
officials responsible for the victim's safety." Id To establish a claim for failure to protect, a
plaintiff must show: (1) "serious or significant physical or emotional injury," De'Lonta v.

Angelone. 330 F.3d 630, 634 (4th Cir. 2003); and (2) that the prison officials had a "sufficiently
culpable state of mind." Farmer. 511 U.S. at 834 (internal quotation marks omitted); Odom v. S.
C. Dep't of Corr.. 349 F.3d 765, 770 (4th Cir. 2003). As to the first prong, "[o]nly extreme
deprivations are adequate," De'Lonta. 330 F.3d at 634; thus, the deprivation must be
"objectively, sufficiently serious." Odom. 349 F.3d at 770, quoting Wilson. 501 U.S. at 298.
Since plaintiff admittedly suffered no actual injury as the result of the cell transfer, he states no
claim for endangerment, and his claim that his constitutional rights were violated when he was
transferred to inmate Jones' cell will be dismissed pursuant to § 1915A for failure to state a

claim upon which relief can be granted.
C. Claims Against Improper Defendants

In addition, plaintiff can state no claims against named defendants Immigration Centers

of America or Trinity Food Services. To state a cause of action under § 1983, a plaintiff must

allege facts indicating plaintiff was deprived of rights guaranteed by the Constitution or laws of
the United States and that this deprivation resulted from conduct committed by a person acting

under color of state law.

West v. Atkins. 487 U.S. 42 (1988). As both of these defendants

are not persons, they can have no liability to plaintiff pursuant to § 1983, and his claims against
them accordingly will be dismissed pursuant to §1915A.

In addition, plaintiff has stated no cognizable claim against named defendants "the eight
secret owners of ICA." Plaintiff asserts that these individuals "profit from mistreatment of
detainees" and that their company "has implemented, executed and adopted the policies,
practices, acts, and omissions complained of herein." Compl. at 2. To state a cause of action
under § 1983, a named defendant must have had personal knowledge of and involvement in the
alleged violations of plaintiffs constitutional rights for the action to proceed against him.
Plaintiffs allegations against the "the eight secret ovmers of ICA" do not meet this test, and as a
resuh his claims against them will be dismissed pursuant to §1915A.
Lastly, plaintiff states no claim against defendant Jeffrey Crawford, the Director of FDA.

Plaintiff alleges that Crawford should be liable because "he is responsible for all operations and

responsibilities of the facility and bears personal custody, care, safety and treatments for all

detainees." Compl. at 3. It thus appears that Director Crawford has been sued solely on the basis
of his supervisory position. However, supervisory officials may be held liable only in certain
circumstances for the constitutional injuries inflicted by their subordinates. Shaw v. Stroud. 13

F.3d 791, 798 (4th Cir. 1994) (citing Slakan v. Porter. 737 F.2d 368 (4th Cir. 1984)). This

liability is not premised on respondeat superior, but upon"a recognition that supervisory
indifference or tacit authorization of subordinates misconduct may be a causative factor in the

constitutional injuries theyinflict on those committed to theircare." Id. at 798 (quoting Slakan.
737 F.2d at 372-73). To establish supervisory liability under § 1983, a plaintiffmust
demonstrate:

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(1) that the supervisor had actual or constructive knowledge that his subordinate was
engaged in conduct that posed "a pervasive and unreasonable risk" ofconstitutional
injury to citizens like the plaintiff; (2) that the supervisor's response to that
knowledge was so inadequate as to show "deliberate indifference to or tacit
authorization of the alleged offensive practices,"; and (3) that there was an
"affirmative causal link" between the supervisor's inaction and the particular
constitutional injury suffered by the plaintiff.

Id. at 799 (citations omitted). Here, plaintiff offers no facts, as opposed to speculative assertions,
to demonstrate that Director Crawford had actual or constructive knowledge that subordinates

were engaged in conduct that posed a "pervasive and unreasonable risk" of constitutional injury

to plaintiff. Accordingly, plaintiffs claim against him is subject to dismissal pursuant to §1915A.
IV. Conclusion

For the foregoing reasons, it is hereby
ORDERED that this action be and is DISMISSED WITH PREJUDICE for failure to state

a claim, pursuant to 28 U.S.C. § 1915A(b)(l); and it is further
ORDERED that plaintiffs application to proceed in forma pauperis (Docket # 2) be and
is DENIED as moot; and it is further

ORDERED that plaintiff is advised that, pursuant to 28 U.S.C. § 1915(g),^ this dismissal
may affect his ability to proceed in forma pauperis in future civil actions; and it is further
ORDERED that the Clerk record this dismissal for purposes of the Prison Litigation
Reform Act.

28 U.S.C. § 1915(g) provides:

In no eventshalla prisoner bringa civilaction or appeal ajudgmentin a civilaction
or proceeding under this section if the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility, brought an action or appeal in a court
ofthe United Statesthat was dismissedon the grounds that it is frivolous, malicious,

orfails to statea claimupon which reliefmay begranted, unless theprisoner is under
imminent danger of serious physical injury.
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To appeal, plaintiff must file a written notice of appeal with the Clerk's Office within
thirty (30) days of the date of this Order.

Fed. R. App. P. 4(a). A written notice of appeal is

a short statement stating a desire to appeal this Order and noting the date of the Order plaintiff
wants to appeal. Plaintiff need not explain the grounds for appeal until so directed by the court.

The Clerk is directed to send of copy of this Order to plaintiff and to close this civil case.

Entered this '7-^ day of

2016.

United States District Judge
Alexandria, Virginia

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