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requiring an allegation of harm or substantial risk of serious harm
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Civil Action No. 18-1152
11-30-2018
BLAINE E. COLEMAN, Sr., Plaintiff, v. C/O HODGES, Defendant.
Judge Nora Barry Fischer/Magistrate Judge Maureen P. Kelly REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that, pursuant to the screening provisions of the Prison Litigation Reform Act ("PLRA"), the operative complaint be dismissed before being served upon the Defendant because the operative complaint fails to state a claim upon which relief can be granted.
II. REPORT
Blaine E. Coleman, Sr. ("Plaintiff") is currently incarcerated at the Mercer County Jail ("MCJ"). He has filed this prisoner civil rights complaint against one corrections officer who is apparently employed at the MCJ, by the last name of Hodges. He claims that Defendant Hodges violated Plaintiff's Eighth Amendment rights from August 8, 2018 to August 11, 2018 by not allowing Plaintiff to shower, exercise, or have a mattress to sleep on during those four days and because there was clogged ventilation within his cell during those same four days. ECF No. 7.
Although Plaintiff invokes the Eighth Amendment, we take judicial notice of the fact that Plaintiff is, in fact, a pre-trial detainee, awaiting trial on various charges including murder of the second degree, aggravated arson causing death, and conspiracy to commit aggravated assault. Commonwealth v. Coleman, No. CP-43-CR-0000621-2017 (C.C.P. Mercer County). Because Plaintiff's operative complaint fails to state a claim upon which relief can be granted, it should be dismissed before being served pursuant to the screening provisions of the PLRA.
The Court takes judicial notice of Plaintiff's criminal court dockets available at:
https://ujsportal.pacourts.us/docketsheets/CPReport.ashx?docketNumber=CP43CR00006212017&dnh=UQaYhgYdHUfa57bZy9TWLg%3d%3d (site last visited 11/30/2017). Those dockets show that after the Court of Common Pleas of Mercer County granted Plaintiff's suppression motion on November 14, 2017, the Commonwealth took an appeal to the Pennsylvania Superior Court, where that appeal is still pending in Commonwealth v. Coleman, No. 1789 WDA 2017 (Pa. Super.), the dockets of said appeal are available at:
https://ujsportal.pacourts.us/DocketSheets/AppellateCourtReport.ashx?docketNumber=1789+WDA+2017&dnh=mRF%2fIULYBMmhljT62ZRtAA%3d%3d (site last visited 11/30/2017). Those dockets show that Appellant's brief was filed on March 27, 2018, and after an extension of time was granted, Appellee's brief was filed on June 25, 2018 and that a decision is being awaited.
A. RELEVANT PROCEDURAL AND FACTUAL HISTORY
Proceeding pro se, Plaintiff filed a Motion to Leave to Proceed in forma pauperis (the "IFP Motion"). ECF No. 1. Attached to the IFP Motion was a proposed Complaint ("Proposed Complaint") which was the prisoner civil rights form complaint provided by the Clerk's Office of this District. EF No. 1-1. We note that Plaintiff signed the IFP Motion as of August 21, 2018. ECF No. 1 at 1. Pursuant to the prisoner mail box rule, this lawsuit is deemed to have been filed on August 21, 2018, only 10 days after the alleged incidents ended on August 11, 2018. Because Plaintiff had more than sufficient funds to pay the filing fee, the undersigned issued a Report and Recommendation, ECF No. 3, recommending that Plaintiff's IFP Motion be denied. On September 26, 2018, Plaintiff filed a second IFP Motion. ECF No. 6. On that same day Plaintiff filed an "Amended Complaint." ECF No. 7. On the following day, Plaintiff paid the entire filing fee of $400.00. ECF No. 4. On September 28, 2018, the Honorable Nora Barry Fischer denied Plaintiff's two pending IFP Motions, (i.e., ECF Nos. 1 and 6) as moot and vacated the Report and Recommendation, ECF No. 3, as moot as well.
We question whether a period of 10 days was sufficient for Plaintiff to have exhausted his administrative remedies as required by the PLRA, 42 U.S.C. §1997e, but because we do not have access to the MCJ grievance policies, we cannot definitively conclude such from the face of the complaint and matters of which judicial notice may be had.
B. APPLICABLE LEGAL PRINCIPLES
In the PLRA, Pub. L. No. 104-134, 110 Stat. 1321 (1996), Congress adopted major changes affecting civil rights actions brought by prisoners, in an effort to curb the increasing number of frivolous and harassing law suits brought by persons in custody. The PLRA permits courts to screen complaints filed by prisoners and dismiss them before they are served if the complaints fail to state a claim or are frivolous or malicious. See Santana v. United States, 98 F.3d 752, 755 (3d Cir. 1996). Because Plaintiff is a prisoner who is suing a government employee, and/or because Plaintiff is a prisoner suing about prison conditions, the screening provisions of the PLRA apply. See 28 U.S.C. § 1915A, ("[t]he court shall review, before docketing, if feasible 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."); 42 U.S.C. § 1997e (permitting courts to screen complaints concerning "prison conditions").
In performing the Court's mandated function of sua sponte review of complaints under 28 U.S.C. § 1915A and 42 U.S.C. § 1997e, to determine if they fail to state a claim upon which relief can be granted, a federal district court applies the same standard applied to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). See, e.g., Courteau v. United States, 287 F. App'x 159, 162 (3d Cir. 2008) ("the legal standard for dismissing a complaint for failure to state a claim pursuant to § 1915A is identical to the legal standard employed in ruling on 12(b)(6) motions."); Montanez v. Pa. Health Care Service Staffs, Civ.A. No. 09-1547, 2011 WL 7417026, at *2 (W.D. Pa. Dec. 14, 2011), report adopted by, 2012 WL 602938 (W.D. Pa. Nov. 23, 2012).
As the United States Supreme Court explained in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), a complaint may properly be dismissed pursuant to Fed. R. Civ. P. 12 (b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Id. at 570 (rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Under this standard, the court must, as a general rule, accept as true all factual allegations of the complaint and all reasonable inferences must be viewed in the light most favorable to plaintiff. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir. 1985). In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and exhibits attached to the complaint when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n.2 (3d Cir. 1994). Moreover, under the 12(b)(6) standard, a "court need not . . . accept as true allegations that contradict matters properly subject to judicial notice or by exhibit." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001), amended by, 275 F.3d 1187 (9th Cir. 2001). The court need not accept inferences drawn by plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Indeed, the United States Supreme Court has explained 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[.]" Id., 550 U.S. at 555.
The question to be resolved is: whether, taking the factual allegations of the complaint, which are not contradicted by the exhibits and matters of which judicial notice may be had, and taking all reasonable inferences to be drawn from those uncontradicted factual allegations of the complaint, are the "factual allegations . . . enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true even if doubtful in fact[.]" Twombly, 550 U.S. at 555. Or put another way, a complaint may be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570.
Furthermore, because Plaintiff is pro se, courts accord an even more liberal reading of the complaint, employing less stringent standards when considering pro se pleadings than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519 (1972).
C. DISCUSSION
1. Complaints Regarding Conditions of Confinement
Plaintiff's Proposed Complaint lacked a signature page. ECF No. 1-1. While the Amended Complaint had a signature page, it was missing page 3 of the prisoner civil rights form complaint, which addressed, inter alia, the forms of relief requested. Given the deficiencies in both the Proposed Complaint and Amended Complaint, we will construe both Complaints together as the "Operative Complaint."
The factual allegations in the Operative Complaint are sparse. Plaintiff's entire allegations are that: "C/O Hodges would not allow me to shower or exercise. No mattress and clog ventilation within my cell." ECF No. 7 at 2. These conditions allegedly occurred for four days from Wednesday, August 8, 2018 through Saturday, August 11, 2018. By way of relief, Plaintiff seeks "monetary value of $50,000 dollars and change the procedure within the Jail." ECF No. 1-1 at 3. These conditions took place in the "RHU" or Restricted Housing Unit. ECF No. 7 at 2. Plaintiff was apparently housed in the RHU due to disciplinary issues. Id. ¶ II.B.
2. Application of the Fourteenth Amendment to Pre-Trial Detainee Claims
Although Plaintiff alleges that the foregoing conduct violates his Eighth Amendment rights, because Plaintiff is a pre-trial detainee, in fact, it is the Fourteenth Amendment's standards which govern a challenge by a pre-trial detainee to the conditions of his/her confinement.
In contrast to convicted and sentenced prisoners who may be "punished" save for cruel and unusual punishments as precluded by the Eighth Amendment, pre-trial detainees may not strictly speaking be "punished" but may only be subjected to necessary regulatory restraints. In Bell v. Wolfish, 441 U.S. 520 (1979), the United States Supreme Court held that the:
proper inquiry is whether those [challenged] conditions [of confinement] amount to punishment prior to an adjudication of guilt in accordance with law. For under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.Id. at 535 (citations omitted). However, jail officials may subject pre-trial detainees to "regulatory restraints" Id. at 537. In performing the analysis of whether a particular condition amounts to prohibited punishment or permitted regulatory restraint,
[a] court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. Absent a showing of an expressed intent to punish on the part of the detention facility officials, that determination generally will turn on whether [it has] an alternative purpose . . . and whether it appears excessive in relation to [that] purpose . . . . Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to "punishment." Conversely, if a restriction or condition is not reasonably related to a legitimate goal-if it is arbitrary or purposeless-a court may permissibly infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.Id. at 538-39 (citations, brackets and internal quotations omitted).
Furthermore, even in the context of pre-trial detainees, unpleasant or adverse conditions that occur in the course of their detention that are de minimis fail to rise to a constitutional violation. "There is, of course, a de minimis level of imposition with which the Constitution is not concerned[.]" Robinson v. Danberg, 673 F. App'x. 205, 212-13 (3d Cir. 2016) (quoting Bell, 441 U.S. at 539 n.21). Rather, The Supreme Court in Bell explained that only the conditions of confinement provided "in such a manner as to cause [detainees] to endure genuine privations and hardship over an extended period of time" raises a due process concern. Bell, 441 U.S. at 542.
Indeed, in light of the foregoing statement in Bell concerning "privation and hardship over an extended period of time," courts have considered the length of time a pre-trial detainee is exposed to conditions of confinement to constitute a significant factor under the Fourteenth Amendment analysis, including the question of whether the condition is more than de minimis. As one district court has observed:
Courts must be mindful that these inquiries spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court's idea of how best to operate a detention facility. Cf. United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2048-49, 52 L.Ed.2d 752 (1977); United States v. Russell, 411 U.S. 423, 435, 93 S.Ct. 1637, 1644, 36 L.Ed.2d 366 (1973).
Davis v. Glanz, 15-CV-011-TCK-FHM, 2015 WL 729696, at *3-4 (N.D. Okla. Feb. 19, 2015).
Id. at 538-39. Time can play a significant part in a court's analysis of these issues. See id. at 543; see also Block v. Rutherford, 468 U.S. 576, 587, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984) (mentioning brevity of detention while sustaining prohibition on contact visits for pretrial detainees); Hutto v. Finney, 437 U.S. 678, 686-87, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) ("A filthy, overcrowded cell and a diet of 'grue' might be tolerable for a few days and intolerably cruel for weeks and months.").
In addition to the foregoing requirement for a conditions of confinement claim under the Fourteenth Amendment that the deprivation be of sufficient seriousness, there is also a scienter requirement in order to establish a constitutional violation. See, e.g., Stevenson v. Carroll, 495 F.3d 62, 68 (3d Cir. 2007) ("Unconstitutional punishment [under the Fourteenth Amendment for pre-trial detainees] typically includes both objective and subjective components. As the Supreme Court explained in Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991), the objective component requires an inquiry into whether 'the deprivation [was] sufficiently serious and the subjective component asks whether 'the officials act[ed] with a sufficiently culpable state of mind[.]' Id. at 298, 111 S.Ct. 2321."). This scienter requirement for establishing a constitutional violation requires more than negligence or gross negligence. Rosario v. Washington Meml. Hosp., CIV.A. 12-1799, 2013 WL 2158584, at *4 (W.D. Pa. May 17, 2013) ("Whatever the proper standard applicable to Plaintiff who was both a convicted person serving probation and, as regards the attacks on the two Nurse Defendants, an arrestee or a pretrial detainee, negligence or even gross negligence is simply beneath the constitutional threshold irrespective of Plaintiff's status or which amendment's standard applies. Daniels v. Williams, 474 U.S. 327, 333 (1986) ('injuries inflicted by governmental negligence are not addressed by the United States Constitution'); Woodward v. City of Worland, 977 F.2d 1392, 1399 n. 11 (10th Cir. 1992) ('Neither simple nor gross negligence implies an intentional and deliberate violation of constitutional rights, and consequently neither form of negligence satisfies the scienter requirement of § 1983.'); Kwasnik v. LeBlon, 228 F. App'x 238, 244 (3d Cir. 2007) ('Liberally construing the Amended Complaint, as we must, we conclude that the allegations, and reasonable inferences drawn therefrom, at best, merely state a negligence claim. Negligence claims are not cognizable under § 1983.')").
In fact, the minimal scienter requirement under a Fourteenth Amendment conditions of confinement claim appears to be deliberate indifference. See Roman v. Union County Jail, CV 16-1049 (ES), 2017 WL 498715, at *4 (D.N.J. Feb. 7, 2017) ("As the Third Circuit explained in Bistrian v. Levi, in order to state a claim for failure to protect, be it under the Fourteenth Amendment, which applies to pre-trial detainees and convicted but-not-yet sentenced inmates, or the Eighth Amendment, which applies to sentenced prisoners, a plaintiff must plead facts which show that '(1) he was incarcerated under conditions posing a substantial risk of serious harm, (2) the [Defendant] was deliberately indifferent to that substantial risk to his health and safety, and (3) the [Defendant's] deliberate indifference caused him harm.' 696 F.3d 352, 366-67 (3d Cir. 2012). 'Deliberate indifference in this context is a subjective standard: the prison official-defendant must actually have known or been aware of the excessive risk to inmate safety.['] Id. at 367.").
With these standards in mind, we turn to consider the allegations set forth in the Operative Complaint.
3. Placement in the RHU is not "Punishment" Per Se.
As an initial matter we must note that Plaintiff asserts that he was the subject of prior disciplinary proceedings in May 2018, which deal with the same facts involved in this action. ECF No. 7 ¶ II.B. Apparently, these disciplinary proceedings resulted in his placement in the RHU at MCJ.
Given some of the language in the cases under the Fourteenth Amendment concerning detainees and "punishment," it is necessary to provide some clarification. To the extent that Plaintiff claims his mere placement in the RHU and the mere imposition of the restrictions regarding a mattress, showers and exercise for four days constituted "punishment" as prohibited by Bell v. Wolfish, he fails to comprehend the meaning of "punishment" as used in Bell and in the Fourteenth Amendment context concerning pre-trial detainees. Being placed in the RHU for disciplinary reasons self-evidently involves an intent to punish Plaintiff for some infraction of the MCJ rules of conduct. However, such a punitive intent does not transform the disciplinary actions taken against Plaintiff for his breaking of MCJ rules into prohibited "punishment" within the meaning of Bell v. Wolfish or transform the disciplinary sanctions into anything other than permissible "regulatory restraints" upon Plaintiff. As explained by the United States Court of Appeals for the Third Circuit:
The term "punishment" in this context warrants further explanation. "Punishment," as used in Bell, refers to the punishment of a pretrial detainee for his alleged criminal conduct, committed prior to his detention, for which he has not yet been convicted. Bell, 441 U.S. at 535-36, 99 S.Ct. 1861. The Supreme Court explained that this type of "punishment" is prohibited by the Due Process Clause because the detainee "ha[d] not been adjudged guilty of any crime" and "had only a 'judicial determination of probable cause as a prerequisite to [the] extended restraint of [his] liberty following arrest.' " Id. at 536-37, 99 S.Ct. 1861 (quoting Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)). Bell did not concern the type of "punishment" or discipline alleged in this case: punishment of a detainee for his in-facility conduct that might violate the facility's rules and policies. Despite the apparent distinctions between Bell and cases where a detainee claims that he was "punished" for his in-facility conduct, we agree with the First Circuit's determination in Collaz-Leon v. U.S. Bureau of Prisons, that the "theoretical constitutional premises of Bell's analysis provides some rational guidance" for evaluating claims involving in-facility conduct that could warrant disciplinary action.11
11The First Circuit explained in Collazo-Leon,
[o]n the authority of Bell, it may be divined that even if a restriction or condition may be viewed as having a punitive effect on the pretrial detainee, it is nonetheless constitutional if it also furthers some legitimate governmental objective such as addressing a specific institutional violation and is not excessive in light of the seriousness of the violation.... If there is a reasonable relation between the sanctions and legitimate institutional policies, an intent to punish the detainee for prior unproven criminal conduct cannot be inferred.
Steele v. Cicchi, 855 F.3d 494, 504 -05 (3d Cir. 2017).
51 F.3d at 318.
In the instant case, Plaintiff cannot state a claim for a violation of the Fourteenth Amendment due to the mere fact that he was placed in the RHU for a disciplinary infraction or suffered other sanctions for disciplinary violations that he committed. The Operative Complaint does not allege any facts that would state a claim upon which relief can be granted merely by his placement in the RHU or by the imposition of punitive sanctions while in the RHU, such as restrictions on showers, exercise or having a mattress.
4. No Mattress for Four Days Fails to State a Claim.
Plaintiff's allegation that Defendant Hodges would not allow Plaintiff to have a mattress for four days fails to allege sufficient facts to nudge his claim over the line of plausibility within the contemplation of Twombly. Twombly, 550 U.S. at 570 ("Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed."). Given the short period of duration, at most 96 hours, and the lack of factual specificity surrounding the circumstances of Defendant Hodges denying Plaintiff a mattress, the Operative Complaint fails to state a conditions of confinement claim under the Fourteenth Amendment. See, e.g., Knight v. Wapinsky, 3:12-CV-2023, 2013 WL 786339, at *5-6 (M.D. Pa. Mar. 1, 2013) (in addressing a Fourteenth Amendment claim, the court stated: "Assuming arguendo that Plaintiff was being triple celled and forced to sleep directly on the concrete floor for approximately six weeks, without allegations that the conditions were unsafe or unsanitary or that Plaintiff suffered any resulting harm, there is no constitutional violation."); Brookings v. Williams, 402 F.Supp.2d 508 (D. Del. 2005) (forcing pretrial detainee to sleep on the floor without a mattress next to the toilet for five days due to overcrowding was not punishment or a due process violation). Accord Davis v. Glanz, 15-CV-011-TCK-FHM, 2015 WL 729696, at *3 - 4 (N.D. Okla. Feb. 19, 2015) (where a pre-trial detainee was made to sleep on the floor without a mattress for 10 consecutive days and then at another time for 7 consecutive days, the Court screened the complaint and dismissed it pre-service for failure to state a claim upon which relief could be granted, reasoning that: "Because of the brief time period involved, the Court finds that the conditions alleged by Plaintiff do not rise to the level of a Fourteenth Amendment violation."); Payton v. Gusman, No. 12-2578, 2013 WL 5530280, at *8 (E.D. La. Oct. 7, 2013) (where pre-trial detainee was made to sleep on the concrete floor for three days without a mattress, the Court screened the complaint and found that such conditions failed to state a claim upon which relief could be granted); Desroche v. Strain, 507 F.Supp.2d 571 (E.D. La. 2007) (pre-trial detainee required to sleep on the floor without a mattress in an overcrowded holding tank for ten days. Only available water was from a dirty sink. No constitutional violation found); Thompson v. Brown, C/A No. 3:11-318-TMC-JRM, 2011 WL 6012592, at *1-2 (D.S.C. Nov. 8, 2011) (analyzing under Fourteenth Amendment pre-trial detainee standards and rejecting conditions of confinement claim where the plaintiff claimed "his mattress and blanket were confiscated for six days, he was not allowed to have any toilet tissue for six days, his clothes were taken away from him for six days, his cell was cold, he had no running water in his cell, and he was forced to sleep on a steel cot for six days"), adopted by, 2011 WL 6012550 (D.S.C. Dec. 2, 2011).
Compare the following Eighth Amendment cases concerning convicted prisoners: Adderly v. Ferrier, 419 F. App'x 135, 139-40 (3d Cir. 2011) (finding that denial of clothing, toiletries, legal mail, mattress and shower for seven days did not constitute Eighth Amendment violation); Milhouse v. Gee, No. 09-2134, 2011 WL 3627414, *13 (M.D. Pa. Aug. 17, 2011) ("Pursuant to the case law related to the denial of bedding, the denial of [an inmate's] mattress for a short period of time does not rise to the level of a constitutional violation."); Lane v. Culp, Civ. No. 05-576, 2007 WL 954101 (W.D. Pa. Mar. 28, 2007) (holding that denial of clothing and bedding for period of seven days does not rise to level of constitutional violation); Castro v. Chesney, Civ. No. 97-4983, 1998 WL 767467 (E.D. Pa. Nov. 3, 1998) ("Plaintiff's allegation that he was deprived of a mattress and blanket for a period of two days, even if proved, would not rise to the level of a constitutional violation.").
Furthermore, although Plaintiff alleges that he was not provided a mattress for four days, he does not assert that he was denied a bed. This is significant as the cases note that provision of neither a bed (perhaps in the form of a concrete or metal slab or even something called a "boat") or, alternatively, provision of a mattress is an important consideration in performing the constitutional analysis. Where a bed is provided but without a mattress, there may be no constitutional violation. Cf. Alfred v. Bryant, 378 F. App'x 977, 980 (11th Cir. 2010) (analyzing the Eighth Amendment, the Court stated: "Objectively speaking, sleeping on a steel bed without a mattress for eighteen days, though uncomfortable, is not so extreme as to violate contemporary standards of decency. See Hamm, 774 F.2d at 1575-76"); Stevens v. Cottey, 145 F. App'x 179, 181 (7th Cir. 2005) (under Eighth Amendment, inmate's complaint of having to sleep on metal bedframe with no mattress for three days and on a mattress on the floor for five days did not rise to the level of a constitutional violation); O'Leary v. Iowa State Men's Reformatory, 79 F.3d 82, 84 (8th Cir. 1996) (sleeping without mattress or blanket for four days on a concrete slab in cell located ten feet from exterior door during winter did not deny plaintiff the minimal civilized measures of life's necessities under Eighth Amendment); Moore v. Younce, 7:16-CV-00575, 2017 WL 5907426, at *4 (W.D. Va. Nov. 30, 2017) ("Furthermore, sleeping on a 'metal-concrete slab' for two nights does not describe the deprivation of life's basic necessities or implicate the historical conceptions of the 'evolving standards of decency that mark the progress of a maturing society.'"); Howard v. Baca, CV 10-5081-JFW OP, 2011 WL 5570086, at *8 (C.D. Cal. Sept. 27, 2011) ("Courts have held that the failure to provide inmates with beds or mattresses is actionable under the Eighth and Fourteenth Amendments."), report and recommendation adopted, CV 10-5081-JFW OP, 2011 WL 5570142 (C.D. Cal. Nov. 15, 2011) (emphasis added). See also Anela v. Wildwood, 790 F.2d 1063, 1067 (3d Cir. 1986) ("allegation that City failed to provide bed or mattress to pretrial detainees states actionable constitutional claim") (emphasis added).
See, e.g., Walker v. George W. Hill Correctional, Civ. A. No. 18-CV-2724, 2018 WL 3430678, at *3 (E.D. Pa. July 13, 2018) (in the context of a pre-trial detainee analyzed under the Fourteenth Amendment, the Court concluded that detainee plaintiff's claims that "he was forced to share a cell with two other individuals and that he was forced to sleep on the floor inside what was described as a boat unit" and that "his sleeping area was a very unhealthy and unsanitary space two feet from the toilet bowl" failed to state a Fourteenth Amendment claim with respect to allegations of overcrowding).
For a picture of what a "boat" looks like, please see:
http://www.hrw.org/sites/default/files/reports/us0609webwcover.pdf (site last visited 11/30/2018). Cf. Pilkey v. Monmouth County Correctional Instn., CIV.A.055073(SRC), 2006 WL 1798947, at *3 (D.N.J. June 28, 2006) (analyzing a convicted prisoner's claim under the Eighth Amendment, the Court stated: "Since Plaintiff's Complaint is silent as to any alternative bedding arrangements being available to—but not used by—the prison officials, or as to any substandard physical conditions of confinement, and since the Complain [sic] does not allege that Plaintiff was singled out for this triplecelling practice, Plaintiff's eleven nights of triplecelling [and sleeping in a boat on the floor] cannot amount to a cruel and unusual punishment. Indeed, the Court has no reason to conclude that the eleven nights of triplecelling deprived Plaintiff of 'the minimal civilized measure of life's necessities,' or that prison officials 'acted ... with deliberate indifference to a substantial risk of harm to [Plaintiff's] health or safety.'").
In light of the foregoing caselaw, Plaintiff fails to state a claim upon which relief can be granted with regard to being denied a mattress for four days by Defendant Hodges.
5. No Exercise Out of the Cell for Four Days Fails to State a Claim.
Plaintiff complains that he was denied exercise for four days by Defendant Hodges. We understand Plaintiff's assertion to be that he was denied out-of-cell exercise by Defendant Hodges because Plaintiff fails to assert that he could not exercise within his cell. Cf. Thomas v. Ramos, 130 F.3d 754, 764 (7th Cir. 1997) ("Thomas, however, was not in this situation [of having a viable Eighth Amendment claim] while he was confined in segregation because he would have been able to engage in exercise in his cell such as push-ups, sit-ups, jogging in place, and step-ups."). To the extent that Plaintiff could exercise in his RHU cell, his inability to exercise outside of his cell for four days simply is insufficient to state a Fourteenth Amendment claim as such a claim is de minimis as a matter of law. Barnes v. County of Monroe, 85 F. Supp. 3d 696, 738-39 (W.D.N.Y. 2015) (in the context of a pre-trial detainee's claim concerning denial of out of cell exercise, the court held that "Plaintiff's exercise deprivation over the course of four days does not rise to the level of an objective constitutional violation."); Brookins v. Williams, 402 F. Supp. 2d 508, 510-11 (D. Del. 2005) ("Additionally, plaintiff claims that during those five days in that cell, he was not allowed to exercise properly and there was a lack of hot water. (D.I.17) It was these conditions that plaintiff claims led to his feelings of stress, anxiety and humiliation." Notwithstanding these claims, the Court found no constitutional violation).
Compare the following Eighth Amendment cases for convicted prisoners: Gattis v. Phelps, 344 F. App'x 801, 805 (3d Cir. 2009) (the Court of Appeals quoted with approval "Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir. 1992) (forty-five minutes of exercise per week not constitutionally infirm); Knight v. Armontrout, 878 F.2d 1093, 1096 (8th Cir. 1989) (holding that denial of outdoor recreation for thirteen days not cruel and unusual punishment). Moreover, 'a temporary denial of outdoor exercise with no medical effects is not a substantial deprivation.' "); Kot v. Matty, CIV. A. 90-7644, 1991 WL 246906, at *1 (E.D. Pa. Nov. 15, 1991) (court found no Eighth Amendment violation where Plaintiff alleged "lack of shower, library, exercise and health services in the intake unit"), aff'd, 980 F.2d 723 (3d Cir. 1992), aff'd, 980 F.2d 723 (3d Cir. 1992); May v. Baldwin, 109 F.3d 557, 565-66 (9th Cir. 1997) (temporary twenty-one day denial of outdoor exercise, with no medical effects is not a substantial deprivation under the Eighth Amendment).
In the instant case, Plaintiff fails to allege any harm suffered from his inability to exercise outside of his cell for four days. Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995) ("In the context of a conditions-of-confinement claim, to demonstrate that a deprivation is extreme enough to satisfy the objective component of an Eighth Amendment claim, a prisoner must 'produce evidence of a serious or significant physical or emotional injury resulting from the challenged conditions', or demonstrate a substantial risk of such serious harm resulting from the prisoner's unwilling exposure to the challenged conditions"); Brigaerts v. Cardoza, C-90-0300-CAL, 1993 WL 87217, at *3 (N.D. Cal. Mar. 19, 1993) ("However, plaintiff does not allege that he was denied all exercise. He also fails to allege any actual harm that he suffered due to the allegedly inadequate recreation."), aff'd, 28 F.3d 105 (9th Cir. 1994). Accordingly, Plaintiff's allegation of being denied out of cell exercise for four days fails to state a claim upon which relief can be granted.
6. Lack of Showers for Four Days Fails to State a Claim.
Plaintiff complains that Defendant Hodges prevented Plaintiff from showering for four days. Just as the foregoing deprivations failed to state a claim upon which relief could be granted, this claim of lack of showers also fails to state a claim upon which relief can be granted because being denied a shower for four days does not constitute a serious enough deprivation of sufficient duration to establish a constitutional violation. See e.g., Best-Bey v. Pennsylvania, CIV.A. 06-5515, 2008 WL 161214, at *6 (E.D. Pa. Jan. 16, 2008) ("Considered in totality, the Court declines to find that Plaintiff's allegations of sleeping on a floor in an overcrowded cell and not being allowed to shower for three days state a Fourteenth Amendment claim."). See also Barnes v. County of Monroe, 85 F. Supp. 3d 696, 738-39 (W.D.N.Y. 2015) ("To the extent Plaintiff alleges that his inability to shower over the course of four days constitutes a constitutional deprivation, his claim must fail. Even a two-week suspension of shower privileges does not constitute a denial of 'basic hygienic needs.' McCoy, 255 F.Supp.2d at 260 (citing Cruz v. Jackson, No. 94 Civ. 2600(RWS), 1997 WL 45348, at *6 (S.D.N.Y. Feb. 5, 1997))."); Flake v. Peck, No. 9:12-cv-00517 (MAD/ATB), 2014 WL 1289582, at *22 (N.D.N.Y. Mar. 31, 2014) (where plaintiff was a pre-trial detainee, the court concluded that his claim that he was denied a shower for four days failed to establish a constitutional violation, finding that "[T]his Circuit has rejected claims of shower deprivation, lasting up to two weeks.") (collecting cases)). Accordingly, we find that Plaintiff's complaint that he was denied a shower for four days fails to state a claim upon which relief can be granted.
Compare the following Eighth Amendment cases for convicted prisoners: Freeman v. Miller, 615 F. App'x 72, 77 (3d Cir. 2015)(finding no Eighth Amendment violation where the convicted prisoner was denied a desk, seat, showers, a mattress, soap, recreation, mail, and toilet paper, and was permitted to wear only underwear and a suicide smock for approximately seven days after being placed in the RHU); Adderly v. Ferrier, 419 F. App'x 135, 139-40 (3d Cir. 2011) (finding that denial of clothing, toiletries, legal mail, mattress and shower for seven days did not constitute Eighth Amendment violation); Collier v. Adams, 602 F. App'x 850, 853 (3d Cir. 2015) (citing with approval Williams v. Delo, 49 F.3d 442, 446 (8th Cir. 1995) (prisoner held in cell without clothes, mattress, and running water for four days, but who was provided milk which he did not like to drink, did not show that the conditions violated the Eighth Amendment)); Gregory v. Wyse, 512 F.2d 378, 380, 382 (10th Cir. 1975) (under the Eighth Amendment confinement for at least ten days in a small cell with only a cement slab for a bed, no bedding, a light in the cell on at all times, two meals per day, and one shower per week did not violate the Eighth Amendment); Devon v. Warden SCI Mahanoy, No. 08-1448, 2008 WL 3890161, at *4 (M.D. Pa. Aug. 19, 2008) (holding that thirteen days without shower, shave or recreation did not violate the Eighth Amendment); Norman Briggs v. Sgt. Heidlebaugh, Deputy Shannon, No. CIV.A. 96-3884, 1997 WL 318081, at *3 (E.D. Pa. May 22, 1997) ("Plaintiff's next claim that he was not allowed to take a shower for two weeks fails as well. The Eighth Amendment does not require that inmates receive frequent showers. DiFilippo v. Vaughn, 1996 WL 355336, at *5 (E.D. Pa. 1996). While a delay of two weeks may seem harsh, it does not give rise to a constitutional deprivation. See Tinsley v. Vaughn, 1991 WL 95323, at *4 (E.D. Pa. 1991) (suspension of shower privileges for twelve days does not violate the Eighth Amendment).").
7. Clogged Ventilation for Four Days Fails to State a Claim.
Lastly, Plaintiff complains of "clogged ventilation" for the four days. We first note that "the Constitution does not give inmates the right to be free from all discomfort. The issue with regards to ventilation is the same as with all alleged constitutional violations-does the condition amount to punishment of pretrial detainees." Yelardy v. Taylor, CIV.A. 03-1032 (GMS), 2006 WL 680660, at *8 (D. Del. Mar. 14, 2006). Caselaw clearly establishes the complaints about inadequate ventilation for such a short period of time as four days simply fall below the constitutional threshold. See, e.g., Alpheaus v. Camden County Correctional Facility, 17-CV-0180(JBS-AMD), 2017 WL 2363001, at *13 (D.N.J. May 31, 2017).
In Alpheaus, the detainee plaintiff complained of inadequate ventilation in his cell, complaining of spending 2 -3 weeks with no cold air in July 2016. The Court dismissed the claim for failure to state a clam upon which relief could be granted, and reasoned as follows:
70. Under the "objective component" to a Fourteenth Amendment Due Process claim, a detainee must prove that the condition of which he complains is sufficiently serious to violate the Constitution. Hudson v. McMillian, 503 U.S. 1, 8 (1992). Severe discomfort is insufficient to establish the objective component of a conditions of confinement claim. The challenged condition must be "extreme." Id. at 9. Given the inherent subjectivity involved in temperature conditions, courts have looked to objectively verifiable criteria to determine whether the temperature in a particular case was severe.
71. Plaintiff here has offered no such facts to demonstrate the temperature severity inside his cell for "2-3 weeks in July 2016" (Complaint § III(C)), such as, by way of example: the outside air temperatures and humidity levels experienced in CCCF's geographic location in New Jersey in July 2016; the ambient temperature in Plaintiff's CCCF cell that month; whether Plaintiff experienced sleep difficulties on or about that time period; whether he suffered heat-related health complications from the temperatures in his cell; whether he made grievances to CCCF staff regarding the summer conditions of which he now complains; whether he requested or was provided fans, ice water, or extra shower opportunities on or around that time; whether there were windows in his cell that provided cross-ventilation; whether he required or requested medications to deal
with any medical problems that interfered with his body's ability to maintain a normal temperature; whether his cell was exposed to direct sunlight; whether Plaintiff was required to perform prison labor; and whether he had any limited opportunity to gain relief in air-conditioned areas. (The foregoing examples are merely illustrative but not exhaustive or exclusive.) In short, Plaintiff has not offered the facts necessary to demonstrate that the "no cold air" (Complaint § III(C)) situation crossed the line that separates institutional administration from punishment. While temperatures at CCCF may have been unpleasant, Plaintiff has not offered facts from which it can be inferred that they were constitutionally excessive.Alpheaus, 2017 WL 2363001, at *13. Accord Biancone v. Kramer, 513 F. Supp. 908, 910 (E.D. Pa. 1981) (in a case where the detainee plaintiff complained of the "stifling" heat, the lack of ventilation, inconvenient lavatories and inaccessible water fountains, the Court found that "'the purpose of the facility is to detain. Loss of freedom of choice and privacy are inherent incidents of confinement in such a facility. And the fact that such detention interferes with the detainee's desire to live as comfortably as possible and with as little restraint as possible during confinement does not convert the conditions or restrictions of detention into punishment. Bell v. Wolfish, 441 U.S. at 537, 99 S.Ct. at 1873. In sum, against the county commissioners plaintiff has failed to state a claim and, therefore, this part of the complaint will be dismissed.")
Compare the following Eighth Amendment cases: Gans v. Rozum, 267 F. App'x 178, 180 n.1 3d Cir. 2008)("his Eighth Amendment claim failed because his allegations of slow sick call, occasional cold cell, dusty ventilation, and companion-less exercise are not sufficiently serious"); Stokelin v. A.C.J.F. Warden, CV 17-3484 (RBK), 2018 WL 4357482, at *3 (D.N.J. Sept. 13, 2018) ("To be considered a constitutional violation, inadequate ventilation must 'undermine[ ] the health of inmates and the sanitation of the penitentiary' "); Kamara v. Adminstr., Bayside State Prison, 17CV7383NLHAMD, 2018 WL 999670, at *2 (D.N.J. Feb. 21, 2018) ("Here, Plaintiff fails to allege that the conditions of his cell are so sufficiently serious so as to result in the denial of a civilized life's necessities.... The same can be said for an allegation regarding ventilation and uncomfortable heat in a prison cell without more, which does not state an Eighth Amendment claim. Plaintiff fails to include any allegations regarding the frequency and duration of the alleged poor ventilation or how it has adversely affected him.")(some citations omitted); Carter v. Owens, 17CV00182JBSAMD, 2017 WL 3107204, at *9 (D.N.J. July 21, 2017) ("Here, Plaintiff's generalized allegation of being 'subjected to lack of ventilation' (Complaint, Docket Entry 1 at 6-7) does not provide any facts whatsoever from which to infer that the Ventilation Conditions were sufficiently serious or that any particular defendant acted with deliberate indifference with respect to Plaintiff's health and safety as to ventilation."); White v. Marshall, No. 2:08cv362-CSC, 2008 WL 4826283, at * 3-4, 9 (M.D. Ala. Nov. 5, 2008) (holding Plaintiff's confinement for thirty days in a paper gown in the jail's strip cell that did not have a mattress, blanket, commode, wash basin, personal hygiene items, a lightbulb, or ventilation, but did have a drain or hole for disposal of human waste did not violate Eighth Amendment) (collecting cases). See also Bomer v. Lavigne, 101 F. App'x 91, 93 (6th Cir. 2004) ("brief inconvenience" of being confined for three days to a cell with no ventilation due to a power outage does not violate Eighth Amendment); Jasman v. Schmidt, 4 F. App' x 233, 235-36 (6th Cir. 2001) (affirming dismissal of Eighth Amendment claim where inmate did not allege he was harmed by poor ventilation); Pryor v. Cox, No. 97-3912, 1999 WL 1253040 (6th Cir. Dec. 13, 1999) (affirming sua sponte dismissal of Eighth Amendment claim alleging that prisoner "was subjected to bad food, unsanitary conditions, and excessive heat," because prisoner did not allege that he suffered any physical injury). --------
What the Court stated in Alpheaus applies equally here. Accordingly, Plaintiff's claim concerning the ventilation should be dismissed for failure to state a claim.
In addition, Plaintiff fails to allege any knowledge on the part of Defendant Hodges concerning the alleged clogged ventilation. This deficiency also causes the Operative Complaint to fail to state a claim upon which relief can be granted under the Fourteenth Amendment.
8. Considered Together the Claims Fail to State a Claim.
The Court also recognizes that some conditions of confinement may establish a Fourteenth Amendment violation in combination when each would not do so alone. Wilson v. Seiter, 501 U.S. 294, 304 (1991) ("Some conditions of confinement may establish an Eighth Amendment violation 'in combination' when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single identifiable human need such as food, warmth, or exercise—for example, a low cell temperature at night combined with a failure to issue blankets."). However, "[t]o say that some prison conditions may interact in this fashion is a far cry from saying that all prison conditions are a seamless web for Eighth Amendment purposes. Nothing so amorphous as 'overall conditions' can rise to the level of cruel and unusual punishment when no specific deprivation of a single human need exists." Id. at 305.
Instantly, we do not find that even considering the conditions of confinement in combination to establish the specific deprivation of a single human need especially when considering the shortness of the alleged deprivations for 96 hours and that there does not seem to be a mutually enforcing effect so as to deprive Plaintiff of a single human need. Best-Bey v. Pennsylvania, CIV.A. 06-5515, 2008 WL 161214, at *6 (E.D. Pa. Jan. 16, 2008) ("While he asserts that he was unable to wash or shower for three days and remained in fear of contracting a disease due to the overcrowded conditions of the intake cell, such assertions do not reach Constitutional proportions, either alone or in combination.... Considered in totality, the Court declines to find that Plaintiff's allegations of sleeping on a floor in an overcrowded cell and not being allowed to shower for three days state a Fourteenth Amendment claim."). Accordingly, for all of the foregoing reasons, the Operative Complaint should be dismissed for failure to state a claim upon which relief can be granted.
9. Injunctive Relief Claims Fail to State a Claim.
We understand Plaintiff to be seeking injunctive relief when he requests in the Operative Complaint to "change the procedure within the jail." ECF No. 1-1 at 3. We deem Plaintiff's request to be a request for injunctive relief to change the policy in the jail. Plaintiff fails though to specify what the current Jail policy is and what he wants the policy to be changed to. Furthermore, the only defendant he named is corrections officer Hodges. Plaintiff fails to allege any policy making authority on the part of Defendant Hodges or an ability on the part of Defendant Hodges to effectuate a change in the policy or procedures of the jail. Accordingly, we find that Plaintiff's request for injunctive relief fails to state a claim for relief against the sole Defendant named herein. See e.g., Lucero v. Hensley, 920 F. Supp. 1067, 1075 (C.D. Cal. 1996) (finding defendants who had no policy making authority not proper party defendants where plaintiffs sought an injunction in order to effectuate a change in policy).
10. Plaintiff May Attempt to Cure the Deficiencies in His Objections.
To the extent that Plaintiff feels he can attempt to allege any additional facts or defendants that could cure the deficiencies noted in this Report and Recommendation, he may do so in his Objections, if he chooses to file any. Coulter v. Ramsden, 510 F. App'x 100, 104 (3d Cir. 2013) ("Last, a formal amendment to the complaint was unnecessary, because the objections Coulter filed on July 27, 2012 served the same purpose as an amendment in that Coulter used them to cure the defects in her complaint. See generally Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 454 (3d Cir. 1996) (if amendment will cure defects in complaint, it must be permitted). After Coulter clarified her cause of action, it then was clear that a formal amendment would be futile, see Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002), because of the insufficient factual assertion of the existence of a conspiratorial agreement.").
III. CONCLUSION
For the reasons set forth herein, it is respectfully recommended that the Complaint be dismissed pursuant to the screening provisions of the PLRA.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2
Respectfully submitted,
s/Maureen P. Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE Date: November 30, 2018 cc: The Honorable Nora Barry Fischer
United States District Judge
BLAINE E. COLEMAN, SR.
Mercer County Jail
55 Thompson Road
Mercer, PA 16137