Bernard Brown v. R. Brock, No. 15-6685 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-6685 BERNARD BROWN, Plaintiff – Appellant, v. R. BROCK, Food Services Manager; PATRICIA SCARBERRY, Food Services Director, Defendants - Appellees. No. 15-6726 BERNARD BROWN, Plaintiff – Appellant, v. PATRICIA SCARBERRY, Food Services Director at Red Onion State Prison; R. BROCK, Food Services Manager at Red Onion State Prison, Defendants - Appellees. Appeals from the United States District Court for the Western District of Virginia, at Roanoke. Glen E. Conrad, Chief District Judge. (7:14-cv-00466-GEC; 7:14-cv-00707-GEC-RSB) Submitted: September 29, 2015 Decided: December 16, 2015 Before WILKINSON, SHEDD, and DIAZ, Circuit Judges. No. 15-6685 dismissed; No. 15-6726 affirmed in part; vacated and remanded in part by unpublished per curiam opinion. Bernard Brown, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Bernard Brown appeals from the dismissal without prejudice of two similar 42 U.S.C. § 1983 (2012) complaints under U.S.C. § 1915A (2012) for failure to state a claim. 28 The first was dismissed on October 6, 2014 (No. 15-6685), and the second was dismissed on January 26, 2015 (No. 15-6726). We dismiss the appeal in No. 15-6685 as untimely; however, in No. 15-6726, we affirm in part, and vacate and remand in part. Parties in a civil action in which the United States is not a party have 30 days following the entry of the district court’s final judgment or order to file a notice of appeal. App. P. 4(a)(1)(A). Fed. R. If a party files in the district court any of the motions listed in Fed. R. App. P. 4(a)(4)(A), including a motion “to alter or amend the judgment under Rule 59,” then the 30-day appeal period runs from the entry of the order disposing of the last such motion. timely filing of a Fed. R. App. P. 4(a)(4)(A). notice jurisdictional requirement.” of appeal in a civil case “[T]he is a Bowles v. Russell, 551 U.S. 205, 214 (2007). Assuming that Brown’s post-judgment motions in No. 15-6685 could be properly construed as Rule 59(e) motions, the 30-day appeal period ran from the entry of the court’s October 31, 2014 order denying Brown’s second motion for reconsideration. 3 Thus, his April 24, 2015 notice of appeal was clearly untimely. Accordingly, we dismiss No. 15-6685 for lack of jurisdiction. Turning to No. 15-6726, allegations in a pro se complaint are to be liberally construed, and a court should not dismiss an action for failure to state a claim “‘unless after accepting all well-pleaded allegations in the plaintiff’s complaint as true and drawing all reasonable factual inferences from those facts in the plaintiff’s favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief.’” De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003) (quoting Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002)). However, a prisoner’s complaint seeking redress from the Government that is frivolous, malicious, or fails to state a claim may be dismissed sua sponte. 28 U.S.C. § 1915A. We review de novo a district court’s dismissal for failure to state a claim pursuant to § 1915A. Slade v. Hampton Rds. Reg’l Jail, 407 F.3d 243, 248 (4th Cir. 2005) (citation omitted). Liberally construing the complaint, Brown asserts that Patricia Scarberry, Food Services Director at Brown’s prison, knowingly used a defective can opener during food preparation and was aware that pieces of metal could end up in prisoners’ food. Brown bit down on one of these pieces of metal and permanently injured his tooth causing pain and potential loss of the tooth. When informed that Brown found metal in his food, 4 Scarberry allegedly admitted that the metal likely came from the kitchen but stated that she had no other choice but to use the can opener. Scarberry allegedly stated that she had seen metal in various foods on different occasions. In addition, Brown averred that metal had been found in his food several times in the past. The Eighth Amendment prohibits the infliction of “cruel and unusual punishments” on prisoners, and wanton infliction of pain.” 312, 319 (1986) omitted). (internal including the “unnecessary Whitley v. Albers, 475 U.S. quotation marks and citations To succeed on an Eighth Amendment claim, a prisoner must show that “the prison official acted with a sufficiently culpable state of mind (subjective component) and . . . [the] injury inflicted on (objective component).” Cir. 2008). the inmate was sufficiently serious Iko v. Shreve, 535 F.3d 225, 238 (4th Allegations of unsanitary food service facilities are sufficient to state a cognizable constitutional claim, see Bolding v. Holshouser, 575 F.2d 461, 465 (4th Cir. 1978), so long as the deprivation is serious deliberately indifferent to the need. U.S. 294, 297-302 (1991). A single and the defendant is Wilson v. Seiter, 501 incident of finding a foreign object in food does not constitute a violation of the constitutional rights of the prisoner affected; however, evidence of frequent or regular injurious incidents of foreign 5 objects in food raises what otherwise might be merely isolated negligent behavior to the level of a constitutional violation. Green v. Atkinson, 623 (vacating dismissal of F.3d 278, complaint 280-81 that (5th alleged Cir. 2010) prisoner was injured by metal in his food after similar occurrences in the past and admission by defendant that there was nothing to be done). Construing Brown’s claims of Scarberry’s prior knowledge and repetition of the incidents liberally, we conclude that he has alleged sufficient deliberate response from Scarberry. indifference to require a However, Brown’s complaint does not substantively mention Defendant R. Brock, Food Services Manager, and does not allege any prior knowledge on his behalf, aside from the services fact at grievances. that the he is prison in and a management that he position responded to in food certain As the principles of respondeat superior do not apply in § 1983 cases, Brown’s allegations are insufficient to state a Servs., claim 436 against U.S. 658, Brock. 694 See (1978) Monell (holding v. Dep’t that of Soc. defendant in § 1983 action may not be sued solely for injury caused by his employee or agent). Accordingly, we dismiss No. 15-6685, affirm the dismissal of the complaint against Brock in No. 15-6726, vacate the portion of the district court’s opinion dismissing the complaint 6 against Scarberry in No. 15-6726, and remand to the district court for further proceedings as to this claim. motion to remand. facts and materials legal before We deny Brown’s We dispense with oral argument because the contentions are adequately this and argument court presented would not in the aid the decisional process. No. 15-6685 DISMISSED No. 15-6726 AFFIRMED IN PART; VACATED AND REMANDED IN PART 7
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