Opinion
Civil Case No. 2:18-cv-01587-JMC-MGB
06-25-2019
Travis J. Wright, Plaintiff, v. K. Newsome, and Lt. Vetter, Defendants.
REPORT AND RECOMMENDATION
This action has been filed by Plaintiff, pro se and in forma pauperis, pursuant to 42 U.S.C. § 1983, alleging a violation of his constitutional rights during his time as a federal pretrial detainee at the Lexington County Detention Center ("LCDC") in Lexington, South Carolina. Specifically, Plaintiff sues two LCDC officials regarding the food service at LCDC—Aramark America Food Service employee, K. Newsome, and grievance coordinator, Lt. Vetter. Plaintiff is now at FCI-Butner in Butner, North Carolina. This matter is before the Court upon Defendant Lt. Vetter's Motion for Summary Judgment. (Dkt. No. 60.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge for consideration. For the reasons set forth herein, the undersigned recommends granting Defendant's motion.
It appears that at the time of the events giving rise to this action, LCDC contracted with Aramark to provide food services to the inmates.
BACKGROUND
This action arises from certain alleged deficiencies with respect to the food served at LCDC and Defendants' alleged failure to properly address and process Plaintiff's grievances complaining of these deficiencies. (Dkt. No. 36.) Specifically, the Complaint alleges that on a "regular basis," Plaintiff was "served hot food below serving temp[erature]"; the food that was "not sanitized"; and food lacked "nutritious balance." (Id. at 7-8.) The Complaint alleges that Plaintiff submitted several grievances complaining of these conditions and that grievance coordinator, Defendant Lt. Vetter, essentially ignored the grievances. (Id. at 8-9.) The Complaint alleges that Plaintiff "may have suffered [] a threat of life and death due to [Lt. Vetter's] unprofessional ways." (Id. at 9.) The Complaint also alleges that Defendant K. Newsome failed to resolve the food deficiencies after receiving notice of Plaintiff's grievances. (Id. at 8.) Under "injuries," the Complaint states, "mental stress; weight loss; digestion difficulty; illness to no avail due to internal damage may occur, with proper medical examination." (Id. at 10.) The Complaint alleges constitutional violations in that Defendants deprived Plaintiff of due process and their deliberate indifference constituted cruel and unusual punishment. (Id. at 9-10.)
Lt. Vetter attached to his Motion for Summary Judgment the apparent grievances at issue. (Dkt. No. 60-5.) These grievances establish the following: On March 3, 2018, Plaintiff submitted a grievance complaining of "a repeat of hot food being serve[d] below temperature, of proper serving portion[s] not be[ing] nutrion[ally] balance[d], and food (veg) not being properly prep[ped] (rotten spots in cook and served veg)." (Id. at 5.) The grievance further states "This is an issue which can be dangerous to human stomach." (Id.) K. Newsome responded to this grievance on April 12, 2018, stating, "We will monitor tray periodically to ensure they are leaving the kitchen at 140 [degrees] or above." (Id.)
On March 3, 2018, Plaintiff also submitted a separate grievance complaining that "I've been requesting the veg diet since day one . . ." (Id. at 4.) The grievance states that Plaintiff has made this request several times and has not received a "response to any request." (Id.) The grievance asks that "the issue . . . [be] resolve[d] and [Plaintiff] gets the nutritional[ly] balance[d] veg meal" that he requests. (Id.) The grievance form indicates that the grievance was received by an officer on April 3, 2018. (Id.) It states that a response is required from Medical. (Id.) No response is stated on the form. (Id.)
On April 2, 2018, Plaintiff submitted another grievance complaining of "(1) diet meals; (2) legal law material; (3) temp and food serving portions." (Id. at 3.) The grievance requests "a transfer to a better facility, that can provide [Plaintiff] with adequate necessities as needed." (Id.) Lt. Vetter responded to this grievance on April 3, 2018, stating, "Please submit one grievance per form, per issue so we can assign your concern to the appropriate person. Please include more details to explain what exactly you are grieving." (Id.)
Lt. Vetter has provided certain emails he sent to "Khrislynn Newsome" and "Christy Frame" on April 6, 2018 and April 9, 2018, asking that they please answer Plaintiff's grievances. (Dkt. No. 60-6.) Lt. Vetter has also provided request forms submitted by Plaintiff—however, these forms do not relate to the claims in this action. (Id. at 6-9 (asking "to see psychology," stating money was taken out of his account for foot cream, asking for foot cream).) Lt. Vetter has also provided records which show that Plaintiff was incarcerated at LCDC from March 5, 2018 through June 13, 2018—a little over three months. (Dkt. No. 60-7 at 4.)
Plaintiff filed this action on June 11, 2018. He filed an Amended Complaint on November 30, 2018. (Dkt. No. 36.) On March 25, 2019, the undersigned issued a Report and Recommendation, recommending that Plaintiff's claims against Defendant K. Newsome be dismissed with prejudice for Plaintiff's failure to execute service under Rule 4(m) of the Federal Rules of Civil Procedure. On February 25, 2019, Defendant. Lt. Vetter filed a Motion for Summary Judgment. (Dkt. No. 60.) The Motion has been fully briefed and is ripe for disposition.
The summons for K. Newsome was returned, unexecuted, stating that K. Newsome is "not employed with Aramark Staff." (Dkt. No. 50.) The Court then issued an Order, giving Plaintiff an opportunity "to provide any additional identification or location information he may have for this Defendant so that K. Newsome can be served with process." (Dkt. No. 51.) Defense counsel later communicated with the Court that Defendant K. Newsome had been employed by Aramark, but she no longer worked for the organization. Defense counsel also stated that Defendant K. Newsome is not employed by the LCDC, and he does not know her current location. The Court relayed this information to Plaintiff by Order and gave him another opportunity to provide any additional identification or location information he may have for K. Newsome so she could be served with process. (Dkt. No. 58.) The Court further advised Plaintiff that Defendant K. Newsome could be dismissed as a party Defendant if she is not served with process. (Id.); see Rule 4(m), Fed. R. Civ. P. Plaintiff still failed to adequately provide identification and location information for K. Newsome. Because K. Newsome was not served process within the requisite 90-day period under Rule 4(m) of the Federal Rules of Civil Procedure, the undersigned issued the above-referenced Report and Recommendation, recommending that Plaintiff's claims against K. Newsome be dismissed with prejudice. (Dkt. No. 68.)
STANDARDS
A. Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. The mandated liberal construction means that only if the court can reasonably read the pleadings to state a valid claim on which the complainant could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the complainant's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
B. Summary Judgment Standard
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Facts are 'material' when they might affect the outcome of the case, and a 'genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, "'the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'" Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
DISCUSSION
Defendant L. Vetter contends that Plaintiff's claims should be dismissed because, inter alia, Plaintiff has failed to establish any constitutional violations. As discussed above, Plaintiff claims that the alleged deficiencies in the food at LCDC constitutes cruel and unusual punishment and asserts that Defendants' failure to properly address and process his grievances amounts to a denial of due process. The undersigned considers these claims, below.
A. Alleged Due Process Violations
Plaintiff's Complaint alleges that Defendant Lt. Vetter essentially ignored his grievances and that Defendant K. Newsome failed to take proper action once she received notice of Plaintiff's grievances. (Dkt. No. 36 at 8-9.) In his response to the Motion, Plaintiff asserts that Lt. Vetter did not respond to his grievances within the requisite 10 days provided for on the grievance forms. (Dkt. No. 70.) As an initial matter, the evidence belies Plaintiff's assertions here. The submitted grievances indicate that Lt. Vetter directly responded to Plaintiff's April 2, 2018 grievance. (Dkt. No. 60-5 at 3.) Further, the emails sent by Lt. Vetter on April 6, 2018 and April 9, 2018, indicate that he attempted to obtain answers to Plaintiff's other grievances. (Dkt. No. 60-6.) Thus, the evidence does not support Plaintiff's claims that his grievances were ignored by Lt. Vetter.
Further, even if Plaintiff's claims are true, violations of policies and procedures do not rise to the level of a constitutional violation. The "Constitution creates no entitlement to grievance procedures or access to any such procedure voluntarily established by the state." Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994); see also Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (federal grievance regulations providing for administrative remedy procedure do not create liberty interest in access to that procedure); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1998) (state Department of Corrections administrative policy establishing a grievance procedure did not create legitimate liberty interest protected by due process); Keeler v. Pea, 782 F. Supp. 42, 44 (D.S.C. 1992) (finding that § 1983 "does not provide any relief against prison rules violations assuming, arguendo, that such a violation occurred").
Thus, Plaintiff's claim that Defendants failed to follow any SCDC policy regarding the processing of his grievances, even if true, fails to set forth a constitutional claim. See Jenkins v. Porter, No. 3:09-cv-2697-HMH, 2010 WL 2640253, at *3 (D.S.C. June 3, 2010) ("Even assuming that Defendant violated SCDC grievance procedures, such actions do not state a claim which is actionable under § 1983."), adopted by, 2010 WL 2640257 (D.S.C. June 29, 2010); Ashann-Ra v. Commonwealth of Virginia, 112 F. Supp. 2d 559, 569 (W.D. Va. 2000) ("Because a state grievance procedure does not confer any substantive right upon prison inmates, a prison official's failure to comply with the state's grievance procedure is not actionable under § 1983."). Thus, Plaintiff's claims arising from the alleged mishandling of his grievances should be dismissed as a matter of law.
B. Alleged Cruel and Unusual Punishment
To state a constitutional violation for cruel and unusual living conditions, Plaintiff must plead facts indicating that the condition of his confinement rises to a level that would amount to cruel and unusual punishment under the Eighth Amendment of the United States Constitution. Rhodes v. Chapman, 452 US 337, 344-47 (1981). The Fourth Circuit Court of Appeals has explained that a prisoner must plead: (1) that objectively, the deprivation of a basic human need was "sufficiently serious" and (2) that subjectively, the prison employees acted with a "sufficiently culpable state of mind." Johnson v. Quinones, 145 F.3rd 164, 167 (4th Cir. 1998) (quoting Wilson v. Seiter, 501 US 294, 298 (1991)). The alleged deprivation must be sufficiently serious for the objective component of the test to be satisfied. Strickler v. Waters, 989 F.2d 1375, 1379-81 (4th Cir. 1993), cert. denied, 510 U.S. 949 (1993).
As discussed above, the Complaint alleges that on a "regular basis," Plaintiff was "served hot food below serving temp[erature]"; the food that was "not sanitized"; and food lacked "nutritious balance." (Dkt. No. 36 at 7-8.) The evidence shows that Plaintiff was incarcerated at LCDC from March 5, 2018 through June 13, 2018—a little over three months. (Dkt. No. 60-7 at 4.) Plaintiff's grievances provide more context to these allegations. Specifically, his March 3, 2018 grievance indicates that Plaintiff wanted a nutritionally balanced vegetarian meal. (Dkt. No. 60-5 at 4.) Plaintiff requests a vegetarian diet in this grievance. (Id.) In his response to Lt. Vetter's Motion for Summary Judgment, Plaintiff alleges for the first time that he bit a rock in a meal of beans. He writes next to this allegation, "unsanitized [sic] food pro." (Dkt. No. 70 at 1.) He states that "Plaintiff may, if made available, present dental records to provide damage of tooth." (Id.) Plaintiff later states that he has requested his dental records "from medical/dental," and was told that he will receive copies as soon as the records are gathered. (Id. at 7.) He indicates these records will prove his damages. (Id.)
The undersigned will first address Plaintiff's newly raised allegations. As an initial matter, "[a] plaintiff may not argue a new claim in response to a motion for summary judgment." Haggwood v. Magill, No.5:15-cv-3271-RMG, 2016 WL 4149986, at *6 (D.S.C. Aug. 3, 2016) (citing White v. Roche Biomedial Labs., Inc., 807 F. Supp. 1212, 1216 (D.S.C. 1992)); see also S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013) (parties cannot amend their complaints through briefing or oral advocacy); Gilmour v. Gates, McDonald & Co., 382 F.3d 1312 (11th Cir. 2004) (plaintiff may not amend complaint through argument in brief opposing summary judgment); Bridgeport Music, Inc. v. WM Music Corp., 508 F.3d 394, 400 (6th Cir. 2007) (a party may not expand its claims to assert new theories in response to summary judgment); Bryan v. Def. Tech., U.S., No. 1:10-cv-2834-TLW-SVH, 2011 WL 4435597, at *4 (D.S.C. Aug. 10, 2011) ("A plaintiff may not amend his pleadings to avoid summary judgment."), adopted by, 2011 WL 4435579 (D.S.C. Sept. 23, 2011), aff'd, 466 F. App'x 208 (4th Cir. 2012).
Further, to the extent this allegation is liberally construed as part of Plaintiff's claim that that the food is not properly sanitized, it still fails to support finding a constitutional violation. As another court in this district noted, "occasional incidents of a foreign object contained in food, while regrettable, does not present a question of constitutional proportion." Moore v. Ozmint, No. CIV.A. 3:10-cv-3041-RBH, 2012 WL 762460, at *6 (D.S.C. Feb. 16, 2012) (quoting Lunsford v. Reynolds, 376 F. Supp. 526, 528 (W.D. Va. 1974), adopted by, 2012 WL 762439 (D.S.C. Mar. 6, 2012); see also Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir. 1985), cert. denied, 475 U.S. 1096 (1986) ("The fact that the food occasionally contains foreign objects or sometimes is served cold, while unpleasant, does not amount to a constitutional deprivation.") Wassil v. Casto, No. 3:13-cv-06020, 2014 WL 988479, at *5 (S.D.W. Va. Mar. 12, 2014) ("Even if Defendants were aware of all the other foreign objects found in the food—the rock, earthworm, rotten potatoes, glove, and hairs—those objects would not present an objectively serious risk to the health of inmates."). While Plaintiff alleges he suffered tooth damage as a result of biting a rock in his meal, he does not explain the extent of the damage and he has not provided any evidence to support finding an injury. Moreover, he has failed to demonstrate any deliberate indifference by Defendants that they knew of and disregarded the risk of a rock being in the food served to inmates. None of the grievances provided by Lt. Vetter mention foreign objects in the food, and there is no evidence to otherwise indicate deliberate indifference here. For these reasons, this newly added allegation fails to establish a constitutional violation. See, e.g., Wassil, 2014 WL 988479, at *5 (finding "Plaintiffs have . . . failed to sufficiently allege that Defendants acted with deliberate indifference, that is, that they knew of and disregarded an objectively serious risk to inmates"; noting, "although the evidence letter states that inmates intentionally put foreign objects in the food, Plaintiffs never allege that officials know that this is the cause of at least some of the problems"); Reed v. Olson, No. 4:09-cv-3126-JFA-TER, 2011 WL 765559, at *3-4 (D.S.C. Jan. 19, 2011) (no Eighth Amendment violation where inmate alleged "that the food is often contaminated with hair, rocks, various pieces of steal [sic] particles, and bugs, both alive and dead").
In his response brief, Plaintiff states that he will submit his dental records when they are provided to him. (Dkt. No. 70 at 7.) Plaintiff filed his response brief on April 2, 2019, almost three months ago. He has not since provided any update as to the status of these records. However, as discussed further above, his allegations here still fail to establish a constitutional violation, regardless.
Turning to the allegations set forth in the Complaint, Plaintiff alleges that that on a "regular basis," Plaintiff was "served hot food below serving temp[erature]"; the food that was "not sanitized"; and food lacked "nutritious balance." (Dkt. No. 36 at 7-8.) "It is well-established 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 (4th Cir. 1985). However, a prisoner is entitled only to reasonably adequate food. Hamm, 774 F.2d at 1574.
Here, Plaintiff has failed to show that these alleged deficiencies in the food resulted in a serious deprivation or that Defendants were deliberately indifferent. Courts in this circuit have repeatedly held that cold meals are an ordinary incident of prison life and pose no danger to inmate health. See, e.g., Joyner v. Patterson, No. 0:13-cv-2675-DCN-PJG, 2014 WL 3909531 (D.S.C. Aug. 11, 2014) (noting that inmate complaint of cold food does not amount to constitutional hardship), aff'd, 597 Fed. App'x. 748 (4th Cir. 2015); Tyler v. Lassiter, 2016 WL 866325, *5 (E.D.N.C. March 3, 2016) (same); Couch v. Jabe, 479 F.Supp.2d 569, 587 (W.D. Va. Sept. 22, 2006) (holding after surveying case law that cold food does not violate the Eighth Amendment). Further, allegations of rotten and non-sanitized food, without more, do not establish a constitutional violation. See, e.g., Gardner v. Devenyns, No. JKB-11-2725, 2012 WL 706850 (D. Md. Mar. 2, 2012) (inmate being repeatedly served spoiled milk was not a constitutional violation), aff'd, 474 F. App'x 378 (4th Cir.2012); Bedell v. Angelone, No. 2:01-cv-780, 2003 WL 24054709, *14 (E.D. Va. 2003) ("Being served rotten food is unpleasant and unfortunate; however, it simply does not rise to the level of a constitutional violation because Plaintiff has not shown that is resulted in a serious deprivation or that Defendants were deliberately indifferent.").
Finally, with respect to Plaintiff's allegations that he requires a nutritionally balanced vegetarian meal (Dkt. Nos. 36 at 8; 60-5 at 4), there is no evidence of "a serious or significant physical or emotional injury resulting from" Plaintiff's alleged failure to receive a vegetarian diet. The grievance implies that Plaintiff believes such a diet is better for his digestive system. (Dkt. No. 60-5 at 4.) The Amended Complaint also generally alleges that Plaintiff has suffered weight loss and "digestion difficulty." (Dkt. No. 36 at 10.) However, Plaintiff has not shown any connection between these alleged injuries and being deprived a vegetarian meal. See, e.g., Livingston v. Padula, No. 8:08-cv-3064-HFF-BHH, 2009 WL 1872107, at *2 (D.S.C. June 29, 2009) (noting plaintiff's allegations "that his digestive system was damaged from eating cold food for over two years, and he now has to rely on laxatives to move his bowels"; finding "[o]ther than his own conclusory allegations, the plaintiff has not shown any connection between being served cold food and his medical condition").
In sum, Plaintiff has failed to establish that any of the alleged deficiencies with respect to the food served at LCDC amount to a constitutional violation. Plaintiff's claims arising from these allegations should therefore be dismissed as a matter of law.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that Defendant Lt. Vetter's Motion for Summary Judgment (Dkt. No. 60) be GRANTED, and that Plaintiff's Complaint be dismissed with prejudice.
While the Court recommends the claims against K. Newsome be dismissed based on Plaintiff's failure to serve this Defendant in accordance with Rule 4(m) of the Federal Rules of Civil Procedure (Dkt. No. 68), the claims against K. Newsome should also be dismissed on their merits, for the reasons discussed in this Report and Recommendation.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE June 25, 2019 Charleston, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).