Peterson v. Barksdale et al

Filing 20

OPINION and ORDER denying 13 Motion to Dismiss for Failure to State a Claim; the plaintiff's response 16 is construed as a motion to amend his Complaint and it is GRANTED; the defendants shall file their answer to the complaint, as amended, within 14 days, the defendants shall file motions for summary judgment by no later than April 14, 2017; and the Clerk's Office shall set his case for a bench trial in the Big Stone Gap Division at least 120 days from the date of entry of this Order. Signed by Magistrate Judge Pamela Meade Sargent on 3/20/2017. (tvt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
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TROY PETERSON,
Plaintiff,
v.
E. BARKSDALE, Warden, et al.,
Defendants.

Civil Action No. 7:16cv00217
MEMORANDUM ORDER
By: Hon. Pamela Meade Sargent
United States Magistrate Judge

The matter is before the court on the Defendants’ Motion To Dismiss,
(Docket Item No. 13), (“Motion”). Based on the arguments of the parties and
counsel, and for the reasons stated below, the Motion will be DENIED.
Troy Peterson, (“Peterson”), an inmate housed in the Virginia Department of
Corrections, (“VDOC”), at Red Onion State Prison, (“Red Onion”), filed this case
pursuant to 42 U.S.C. § 1983 against defendants E. Barksdale, the Warden of Red
Onion, P. Scarberry, Kitchen Supervisor, and N. Gregg, Dietician.1 The facts
alleged in the Complaint are sparse. Peterson simply listed who the defendants
were and stated:
I have written many request[s] and complaints about the trays
not having the right foods or there not being a healthy diet (2000
calories). I’ve explained [we’re] only getting 1000 calories or less.
… The vegetarian trays are unhealthy and there is no
[vegetarian] menu (diet). All they do is take the meat off and put
beans on.
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Peterson also sued “The Food Services Company,” but on defense counsel’s
representation that no such entity existed, the court previously dismissed Peterson’s claims
against that entity by Order dated November 28, 2016, (Docket Item No. 18).
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… I have lost 40 lb. in 6 months. I eat my whole tray [b]ut I
can’t maintain my health (lost weight). I am sick and getting rashes.
(Complaint, (Docket Item No. 1), at 2.) Peterson seeks compensatory and punitive
damages and injunctive relief ordering the defendants to provide a healthy
vegetarian diet of at least 2000 calories a day.
The Motion argues that Peterson’s claims should be dismissed because he
has failed to allege facts sufficient to support a claim under § 1983 against the
defendants.

The Motion also argues that Peterson has failed to allege direct

personal involvement by each defendant sued. In his response to the Motion,
Peterson stated:
Defendant E. Barksdale is the warden and overseer of Red
Onion he let this happen and did nothing even after it was reported
(many times).
Defendant P. Scarberry runs the kitchen [therefore] all trays
(meals) have to have her OK.
Defendant N. Gregg … made the menu.
(Docket Item No. 16.)
Federal Rules of Civil Procedure Rule 12(b)(6) provides for dismissal of a
complaint for “failure to state a claim upon which relief can be granted.” FED. R.
CIV. P. 12(b)(6). To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Twombly, the
Supreme Court stated that “a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” 550 U.S. at 555
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(quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). The “[f]actual allegations
must be enough to raise a right to relief above the speculative level.” Twombly,
550 U.S. at 555 (citations omitted).

Additionally, the Court established a

“plausibility standard” in which the pleadings must allege enough to make it clear
that relief is not merely conceivable, but plausible. See Twombly, 550 U.S. at 55563.
The Court further explained the Twombly standard in Ashcroft v. Iqbal, 556
U.S. 662, 678-79 (2009):
Two working principles underlie our decision in Twombly.
First, the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice. … Second, only a
complaint that states a plausible claim for relief survives a motion to
dismiss. …
In keeping with these principles a court considering a motion to
dismiss can choose to begin by identifying pleadings that, because
they 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. When there
are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an
entitlement to relief.
(Internal citations omitted).
The Eighth Amendment to the U.S. Constitution not only prohibits excessive
sentences, but it also protects inmates from inhumane treatment and conditions
while imprisoned. See Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996).
Allegations of inadequate food for human nutritional needs are sufficient to state a
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cognizable constitutional claim, so long as the deprivation is serious and the
defendant is deliberately indifferent to the need. See Shrader v. White, 761 F.2d
975, 986 (4th Cir. 1985) (citing Bolding v. Holshouser, 575 F.2d 461 (4th Cir.
1978)); see also Wilson v. Seiter, 501 U.S. 294, 303-04 (1991). Also, the Fourth
Circuit has ruled that a pro se litigant’s complaint should not be dismissed unless it
appears beyond doubt that the litigant can prove no set of facts in support of his
claim that would entitle him to relief. See Gordon v. Leeke, 574 F.2d 1147, 1151
(4th Cir. 1978).
In this case, Peterson alleges that he has received inadequate food which has
caused weight loss and health problems. The allegations in this case appear similar
to those in Wilson v. Johnson, 385 F. App’x 319 (4th Cir 2010). Among other
allegations raised, the plaintiff in Wilson alleged that the food service staff at the
correctional center where he was held had provided “minute” food portions which
had caused him to lose 12 pounds of weight in one month’s time. See Wilson, 385
F. App’x at 320. The district court had dismissed the claim under 28 U.S.C. §
1915A(b) for failing to state a claim. The Fourth Circuit vacated the dismissal of
this claim and remanded, finding that the dismissal of the claim prior to a response
from the defendants was premature. See Wilson, 385 F. App’x at 320. The Fourth
Circuit reasoned that, under Gordon, 574 F.2d at 1151, Wilson might be “able to
prove sufficient facts to support his Eighth Amendment claim…” Wilson, 385 F.
App’x at 320. The same is true in this case. Therefore, I find that Peterson’s
Complaint adequately pleads a claim under the Eighth Amendment based on
inadequate nutrition.
The defendants also argue that Peterson’s claim should be dismissed because
he has failed to allege direct personal involvement by each particular defendant.
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See Wright v. Collins, 766 F.2d 841, 850 (4th Cir 1985) (“[i]n order for an
individual to be liable under § 1983, it must be ‘affirmatively shown that the
official charged acted personally in the deprivation of the plaintiff’s rights.…’”)
(quoting Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977)). While sufficient
allegations against each of the defendants may not be contained on the face of the
Complaint, it is clear that Peterson could amend to state sufficient allegations
because he has done so in his response to the Motion. In his response, he states
that defendant Scarberry runs the kitchen and approves all meals served. Peterson
states that defendant Gregg, as Dietician, made the menu served. He also alleges
that defendant Barksdale knew of the inadequate nutrition provided and did
nothing to intervene. I find that these facts adequately allege direct personal
involvement by each individual defendant.
Rather than grant the Motion and then grant Peterson time to file an
amended complaint, I will construe Peterson’s response as a motion to amend, and
I will allow the Complaint to be amended to contain the facts alleged in the
response. Based on this, I will deny the Motion.
Therefore, it is ORDERED as follows:
1.

The pro se plaintiff’s response to the Motion, (Docket Item No. 16), is
construed as a motion to amend his Complaint. That motion is
GRANTED, and the Complaint is amended with the facts contained
in the response;

2.

Defendants’ Motion To Dismiss, (Docket Item No. 13), is DENIED;

3.

The defendants shall file their answers to the Complaint, as amended,
within 14 days of the date of entry of this Memorandum Order;

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4.

The defendants shall file motions for summary judgment by no later
than April 14, 2017; and

5.

The Clerk’s Office shall set this case for bench trial in the Big Stone
Gap Division at least 120 days from the date of entry of this Order.

Copies of this Memorandum Order will be certified to all counsel of record
and to the unrepresented plaintiff.
ENTERED: March 20, 2017.
s/

Pamela Meade Sargent
UNITED STATES MAGISTRATE JUDGE

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