Roane v. Miller et al, No. 4:2015cv01826 - Document 5 (N.D. Ohio 2015)
Court Description: Memorandum Opinion and Order dismissing this action. The Court certifies that an appeal from this decision could not be taken in good faith. Judge John R. Adams on 12/2/2015. (M,TL)
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Roane v. Miller et al Doc. 5 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION TERRANCE ROANE, Plaintiff, v. LAURIE MILLER, et al., Defendants. ) ) ) ) ) ) ) ) ) CASE NO. 4:15 CV 1826 JUDGE JOHN R. ADAMS MEMORANDUM OF OPINION AND ORDER Pro se Plaintiff Terrance Roane filed this action under 42 U.S.C. § 1983 against Ohio State Penitentiary (“OSP”) Corrections Officer Laurie Miller, OSP Warden Jay Forshey, and OSP Institutional Inspector Thompson. In the Complaint, Plaintiff alleges Miller made an inappropriate comment to him. He seeks monetary damages. I. Background Plaintiff indicates that on November 9, 2014, he was exercising in a recreation area when Officer Miller made her security rounds through that area. Plaintiff had taken his shirt off. He claims Miller commented as she passed by, “You have a hot body.” He contends she has made similar comments to him in the past. He indicates he asked her to stop. He filed grievances but they were denied by Institutional Inspector Thompson. He alleges Thompson did not take his complaint seriously. He acknowledges that Warden Forshey was not directly involved in the incident, but states he is legally responsible for the operation of OSP and is therefore liable. Dockets.Justia.com II. Standard of Review Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court is required to dismiss an in forma pauperis action under 28 U.S.C. § 1915(e) if it fails to state a claim upon which relief can be granted, or if it lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). A claim lacks an arguable basis in law or fact when it is premised on an indisputably meritless legal theory or when the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. A cause of action fails to state a claim upon which relief may be granted when it lacks “plausibility in the complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The factual allegations in the pleading must be sufficient to raise the right to relief above the speculative level on the assumption that all the allegations in the complaint are true. Twombly, 550 U.S. at 555. The Plaintiff is not required to include detailed factual allegations, but must provide more than “an unadorned, the defendant unlawfully harmed me accusation.” Iqbal, 556 U.S. at 678. A pleading that offers legal conclusions or a simple recitation of the elements of a cause of action will not meet this pleading standard. Id. In reviewing a Complaint, the Court must construe the pleading in the light most favorable to the Plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998). -2- III. Analysis Plaintiff does not specify the legal claim he seeks to assert. To the extent he was attempting to assert a violation of his Eighth Amendment rights, he failed to state a claim upon which relief may be granted. The Eighth Amendment imposes a constitutional limitation on the power of the states to punish those convicted of crimes. Punishment may not be “barbarous” nor may it contravene society’s “evolving standards of decency.” Rhodes v. Chapman, 452 U.S. 337, 346 (1981). In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court remarked that “having stripped [inmates] of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.” Id. at 833. The Eighth Amendment protects inmates by requiring that “prison officials ... ensure that inmates receive adequate food, clothing, shelter, and medical care, and ... ‘take reasonable measures to guarantee the safety of the inmates.’ ” Id. at 832 (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). This, however, does not mandate that a prisoner be free from discomfort or inconvenience during his or her incarceration. Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987) (per curiam) (quoting Rhodes, 452 U.S. at 346). Prisoners are not entitled to unfettered access to the medical treatment of their choice, see Hudson v. McMillian, 503 U.S. 1, 9 (1992), nor can they “expect the amenities, conveniences and services of a good hotel.” Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir.1988); see Thaddeus-X v. Blatter,175 F.3d 378, 405 (6th Cir. 1999). In sum, the Eighth Amendment affords the constitutional minimum protection against conditions of confinement which constitute health threats, but does address those conditions which cause the prisoner to feel merely -3- uncomfortable or which cause aggravation or annoyance. Hudson, 503 U.S. at 9-10 (requiring extreme or grave deprivation). The Supreme Court in Wilson v. Seiter, 501 U.S. 294, 298 (1991), set forth a framework for courts to use when deciding whether certain conditions of confinement constitute cruel and unusual punishment prohibited by the Eighth Amendment. A Plaintiff must first plead facts which, if true, establish that a sufficiently serious deprivation has occurred. Id. Seriousness is measured in response to “contemporary standards of decency.” Hudson, 503 U.S. at 8.. Routine discomforts of prison life do not suffice. Id. Only deliberate indifference to serious medical needs or extreme deprivations regarding the conditions of confinement will implicate the protections of the Eighth Amendment. Id. at 9. A Plaintiff must also establish a subjective element showing the prison officials acted with a sufficiently culpable state of mind. Id. Deliberate indifference is characterized by obduracy or wantonness, not inadvertence or good faith error. Whitley v. Albers, 475 U.S. 312, 319 (1986). Liability cannot be predicated solely on negligence. Id. A prison official violates the Eighth Amendment only when both the objective and subjective requirements are met. Farmer v. Brennan, 511 U.S. 825, 834 (1994). In this case, Plaintiff’s allegations fail to establish an objectively serious deprivation. He contends only that Miller told him he had a “hot body.” Verbal harassment and offensive comments by corrections officers are not objectively serious and do not state an Eighth Amendment claim. See Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). -4- Furthermore, Plaintiff cannot hold the Warden or the Institutional Inspector liable for Miller’s actions. Respondeat superior is not a proper basis for liability under § 1983. Leary v. Daeschner, 349 F.3d 888, 903 (6th Cir. 2003); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). A supervisor cannot be held liable for the acts of an employee based solely on the supervisor’s right to control employees, or “simple awareness of employee’s misconduct.” Leary, 349 F.3d at 903; Bellamy, 729 F.2d at 421. Furthermore, “a supervisory official’s failure to supervise, control or train the offending individual is not actionable unless the supervisor ‘either encouraged the specific incident of misconduct or in some other way directly participated in it.’ ” Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (quoting Hays v. Jefferson County, 668 F.2d 869, 874 (6th Cir. 1982)). “At a minimum, Plaintiff must show that the [supervisor] at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers.” Id. (quoting Hays, 668 F.2d at 874). Plaintiff admits Warden Forshey did not directly participated in the incident. He cannot be held liable for Miller’s actions. Furthermore, the claims against Thompson are based on the unfavorable decision Plaintiff received on his grievance. Responding to a grievance or otherwise participating in the grievance procedure is insufficient to trigger liability under 42 U.S.C. § 1983. Shehee v. Luttrell, 199 F.3d. 295, 300 (6th Cir. 1999). To the extent Plaintiff intended to assert some other claim, he failed to give sufficient indication of the claim to meet basic notice pleading requirements. The Complaint must give the Defendants fair notice of what the Plaintiff’s claims are and the grounds upon which they rests. Bassett v. National Collegiate Athletic Ass’n, 528 F.3d 426, 437 (6th Cir. 2008). Absent a -5- reasonable indication of the legal basis for Plaintiff’s claim, it does not meet the basic pleading requirements. IV. Conclusion Accordingly, this action is dismissed pursuant to 28 U.S.C. §1915(e). The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith.1 IT IS SO ORDERED. Date: December 2, 2015 /s/ John R. Adams JOHN R. ADAMS UNITED STATES DISTRICT JUDGE 28 U.S.C. § 1915(a)(3) provides: An appeal may not be taken in forma pauperis if the trial court certifies that it is not taken in good faith. -6-
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