Sanchez v. Osborne et al, No. 4:2010cv00035 - Document 5 (W.D. Ky. 2010)

Court Description: MEMORANDUM AND OPINION by Judge Joseph H. McKinley, Jr on 4/23/10; Plaintiffs complaint will be dismissed for failure to state a, DCA, Defendants, Plaintiff (pro se) (JBM)
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT OWENSBORO DONALD BRYAN SANCHEZ PLAINTIFF v. CIVIL ACTION NO. 4:10CV-P35-M JAILER DAVID OSBORNE et al. DEFENDANTS MEMORANDUM OPINION Plaintiff, Donald Bryan Sanchez, filed a pro se, in forma pauperis complaint pursuant to 42 U.S.C. § 1983 (DN 1). This matter is before the Court for screening pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). For the reasons set forth below, the action will be dismissed. I. SUMMARY OF CLAIMS Plaintiff sues in their official capacities the following Daviess County Detention Center (DCDC) employees: Jailer David Osborne, Captain Billings, and Major Joni Clark. He states that the back wall is growing mold and our showers. He states that in the past six months he has sent complaints to Captain Billing but that all they did was paint over whats above the beds but what under the beds is still there and in showers but even whats been painted is still growing back because the ventalation is stoped up and won t take the steam out. II. ANALYSIS When a prisoner initiates a civil action seeking redress from a governmental entity, officer, or employee, the trial court must review the complaint and dismiss the action, if the court determines that it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915A(b)(1) and (2). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Id. at 327. While a reviewing court must liberally construe pro se pleadings, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam), to avoid dismissal, a complaint must include enough facts to state a claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plaintiff sues Defendants in their official capacities. If an action is brought against an official of a governmental entity in his official capacity, the suit should be construed as brought against the governmental entity. Will v. Mich. Dep t of State Police, 491 U.S. 58, 71 (1989). Therefore, in the case at bar, Plaintiff s claims against the employees of DCDC in their official capacities are actually brought against the Daviess County government. See Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). When a § 1983 claim is made against a municipality, like Daviess County, a court must analyze two distinct issues: (1) whether the plaintiff s harm was caused by a constitutional violation; and (2) if so, whether the municipality is responsible for that violation. Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992). The Court will address the issues in reverse order. [A] municipality cannot be held liable solely because it employs a tortfeasor or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory. Monell v. New York City Dep t of Soc. Servs., 436 U.S. 658, 691 (1978) (emphasis in original); Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994); Berry v. City of Detroit, 25 F.3d 1342, 1345 (6th Cir. 1994). [T]he touchstone of official policy is designed to distinguish acts 2 of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible. City of St. Louis v. Praprotnik, 485 U.S. 112, 138 (1988) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479-80 (1986)) (emphasis in Pembaur). A municipality cannot be held responsible for a constitutional deprivation unless there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation. Monell, 436 U.S. at 691; Deaton v. Montgomery County, Ohio, 989 F.2d 885, 889 (6th Cir. 1993). Simply stated, the plaintiff must identify the policy, connect the policy to the city itself and show that the particular injury was incurred because of the execution of that policy. Garner v. Memphis Police Dep t, 8 F.3d 358, 364 (6th Cir. 1993) (quoting Coogan v. City of Wixom, 820 F.2d 170, 176 (6th Cir. 1987), overruled on other grounds, Frantz v. Village of Bradford, 245 F.3d 869 (6th Cir. 2001)). The policy or custom must be the moving force of the constitutional violation in order to establish the liability of a government body under § 1983. Searcy, 38 F.3d at 286 (quoting Polk County v. Dodson, 454 U.S. 312, 326 (1981) (citation omitted)); Bd. of County Comm rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 404 (1997) (indicating that plaintiff must demonstrate deliberate conduct ). In the instant case, Plaintiff has not alleged a policy or custom regarding mold at DCDC. In fact, it appears from the complaint that DCDC did take the remedial step of painting over some of the mold but because of poor ventilation the mold continued to grow. Moreover, Plaintiff has not alleged a constitutional violation. [P]rison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates. Farmer v. Brennan, 511 U.S. 825, 3 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). The Eighth Amendment requires that prison conditions must not involve the wanton and unnecessary infliction of pain or constitute a serious deprivation of basic human needs. Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Plaintiff, however, does not allege that he has suffered any injury as a result of the mold, and some exposure to black mold is a risk that society has chosen to tolerate. McIntyre v. Phillips, No. 1:07-cv-527, 2007 WL 2986470, at *3 (W.D. Mich. Sept. 10, 2007) (citing Brady v. State Farm Fire & Cas. Co., No. 05-30716, 2006 WL 551388, at *3 (5th Cir. Mar. 8, 2006) (per curiam ); Board v. Farnham, 394 F.3d 469, 486 (7th Cir. 2005)). Accordingly, Plaintiff s complaint will be dismissed for failure to state a claim. Date: April 23, 2010 cc: Plaintiff, pro se Defendants Daviess County Attorney 4414.009 4