Leshore v. ABL Food Services et al, No. 1:2006cv00232 - Document 4 (N.D. Ind. 2006)

Court Description: OPINION AND ORDER DISMISSING, WITH PREJUDICE, pursuant to 28:1915A the federal law claims; DISMISSING, WITHOUT PREJUDICE, pursuant to 28:1367(c)(3)and 28:1915A the state law claims. Signed by Judge Theresa L Springmann on 6/21/06. (cer)

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Leshore v. ABL Food Services et al Doc. 4 case 1:06-cv-00232-TLS-RBC document 4 filed 06/21/2006 page 1 of 4 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION JAMES L. LESHORE, Plaintiff, v. ABL FOOD SERVICES, et al., Defendants. ) ) ) ) ) ) ) ) ) CAUSE NO. 1:06-CV-232-TS OPINION AND ORDER James L. Leshore, a pro se prisoner, submitted a Complaint under 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 1915A, the court must review the merits of a prisoner complaint and dismiss it if the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. Courts apply the same standard under § 1915A as when addressing a motion under Rule 12(b)(6), which provides for the dismissal of a complaint, or any portion of a complaint, for failure to state a claim upon which relief can be granted. Weiss v. Colley, 230 F.3d 1027 (7th Cir. 2000). A claim may be dismissed only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. Accordingly, pro se complaints are liberally construed. In order to state a cause of action under 42 U.S.C. § 1983, the Supreme Court requires only two elements: First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of the right acted under color of state law. These elements may be put forth in a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). In reviewing the complaint on a motion to dismiss, no more is required from plaintiff's allegations of intent than what would satisfy Rule 8 s notice pleading minimum and Rule 9(b) s requirement that motive and intent be pleaded generally. Dockets.Justia.com case 1:06-cv-00232-TLS-RBC document 4 filed 06/21/2006 page 2 of 4 Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001) (citations, quotation marks and ellipsis omitted). Mr. Leshore alleges that while he was a pre-trial detainee, he injured a tooth while eating dinner because there was a rock in his food. Although the Eighth Amendment s prescription against cruel and unusual punishments applies only to persons convicted of crimes and although the rights of pre-trial detainees are derived from the Fourteenth Amendment s Due Process Clause, the recognized standard of protection afforded to both convicted prisoners and pretrial detainees under the Eighth and Fourteenth Amendments is the same. Palmer v. Marion County, 327 F.3d 588, 593 (7th Cir. 2003). A violation of the Eighth Amendment s cruel and unusual punishments clause consists of two elements: (1) objectively, whether the injury is sufficiently serious to deprive the prisoner of the minimal civilized measure of life s necessities, and (2) subjectively, whether the prison official s actual state of mind was one of deliberate indifference to the deprivation. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Deliberate indifference is something approaching a total unconcern for [the plaintiff s] welfare in the face of serious risks, or a conscious, culpable refusal to prevent harm. Duane v. Lane, 959 F.2d 673, 677 (7th Cir. 1992). This total disregard for a prisoner s safety is the functional equivalent of wanting harm to come to the prisoner. McGill v. Duckworth, 944 F.2d 344, 347 (7th Cir. 1991). [C]onduct is deliberately indifferent when the official has acted in an intentional or criminally reckless manner, i.e., the defendant must have known that the plaintiff was at serious risk of being harmed and decided not to do anything to prevent that harm from occurring even though he could have easily done so. Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005) (quotation marks, brackets, and citation omitted). 2 case 1:06-cv-00232-TLS-RBC document 4 filed 06/21/2006 page 3 of 4 Negligence on the part of an official does not violate the Constitution, and it is not enough that he or she should have known of a risk. Instead, deliberate indifference requires evidence that an official actually knew of a substantial risk of serious harm and consciously disregarded it nonetheless. Pierson v. Hartley, 391 F.3d 898, 902 (7th Cir. 2004) (citations omitted). It is not enough to show that a defendant merely failed to act reasonably. Gibbs v. Franklin, 49 F.3d 1206, 1208 (7th Cir. 1995). Mr. Leshore does not allege, and based on his Complaint it would not be reasonable to infer, that the rock in his dinner was more than an isolated act of negligence that could have occurred to any member of the public who eats food prepared by others. Such risks do not amount to cruel and unusual punishment. Remedy for this type of injury, if any, must be sought in state court under traditional tort law principles. Reynolds v. Powell, 370 F.3d 1028, 1031 (10th Cir. 2004) (quotation marks, square brackets, and ellipsis omitted.) Neither is there a reasonable inference that anyone had actual knowledge that there was a rock in his food, but choose to do nothing to remove it. Even if the defendants should have more thoroughly cleaned and inspected the Plaintiff s food (i.e., they were negligent), the Eighth Amendment does not prohibit mistakes, it prohibits wanting harm to come to a prisoner. The facts alleged by Mr. Leshore do not present a federal constitutional claim. Because the Court is dismissing his federal law claims, it declines to exercise supplemental jurisdiction over his state law claims pursuant to 28 U.S.C. § 1367(c)(3). Therefore, they will be dismissed without prejudice. For the forgoing reasons, the Court: (1) DISMISSES WITH PREJUDICE, pursuant to 28 U.S.C. § 1915A, the federal law claims; and 3 case 1:06-cv-00232-TLS-RBC document 4 filed 06/21/2006 page 4 of 4 (2) DISMISSES WITHOUT PREJUDICE, pursuant to 28 U.S.C. § 1367(c)(3) and 28 U.S.C. § 1915A, the state law claims. SO ORDERED on June 21, 2006. s/ Theresa L. Springmann THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT 4

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