Green v. Withrow, No. 3:2014cv00181 - Document 15 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 6/15/2015. Copy of Memorandum Opinion was mailed to Plaintiff and electronically sent to counsel. (sbea, )
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Green v. Withrow Doc. 15 IN THE UNITED STATES DISTRICT COURT || JUN I 6 2015 FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division CLERK, U.S. DISTRICT COURl ANTWAN RAY GREEN, RICHMOND, VA Plaintiff, V. Civil Action No. M.T. 3:14CV181 WITHROW, Defendant. MEMORANDUM OPINION Antwan Ray Green, in forma pauperis, Withrow has reasons set No. moved for a inmate filed this 42 U.S.C. to dismiss. below, the Green Court proceeding se § 1983 action.^ has the pro responded. Motion to and M.T. For the Dismiss (ECF ("PLRA") this 10) will be granted in part and denied in part. I. Pursuant to the Court must dismiss determines the a Virginia claim on STANDARD OF REVIEW Prison Litigation Reform Act any action action (1) "is which relief filed by frivolous" may be a prisoner or (2) granted." if the Court to state "fails 28 U.S.C. ^ The statute provides, in pertinent part: Every person who, under color of any statute . . . of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . . 42 U.S.C. § 1983. Dockets.Justia.com § 1915(e)(2); includes see claims 28 U.S.C. based upon § 1915A. "^an The first indisputably standard meritless legal theory,'" or claims where the "^factual contentions are clearly baseless.'" 1992) The Clay v. Yates, (quoting Neitzke second standard dismiss under Fed. "A motion sufficiency contests is R. to of a v. 809 Williams, the Civ. P. Arthur R. 952 Miller, Federal Rule 427 319, (E.D. 327 for a Va. (1989)). motion 12(b) (6) importantly, facts, (4th Cir. U.S. standard under applicability of defenses." 980 F.2d 943, 490 417, to 12(b)(6). dismiss the Supp. familiar complaint; surrounding F. it the merits does of a tests not the resolve claim, or the Republican Party of N.C. v. Martin, 1992) (citing 5A Charles A. Practice and Procedure § Wright & 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is plaintiff. Cir. 1993); applies viewed Mylan Labs., see only to Inc. factual a identifying pleadings Ashcroft V. the also Martin, considering conclusions, in motion are Iqbal, not light v. Matkari, 980 dismiss that, entitled 662, 952. however, can because favorable 7 F.3d 1130, F.2d at allegations, to 556 U.S. most choose they to the 679 (2009). are This to the 1134 (4th principle and "a to begin no assumption court more of by than truth." The Federal Rules of Civil Procedure "require[ ] only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' notice of what the rests.'" . Bell Atl. (second alteration U.S. 41, with complaints 47 "formulaic Id. . in . v. containing of (citations omitted). sufficient level," "to id. raise only the the defendant "labels elements right (citation U.S. 544, Conley v. cannot Instead, a 550 (quoting Plaintiffs recitation ^give Twombly, original) (1957)). to fair claim is and the grounds upon which i t Corp. in order a to satisfy and of (2007) Gibson, this cause of 355 standard conclusions" a or action." above stating the a speculative claim that "plausible on its face," rather than merely "conceivable," at 570. pleads "A factual reasonable has U.S. at that that alleged." 550 facial content inference misconduct Corp., claim plausibility allows the Iqbal, the when the court defendant is 556 U.S. at 678 in order is id. plaintiff to draw liable Therefore, 556). a plaintiff must allege facts relief omitted), 555 the for the (citing Bell Atl. for a claim or complaint to survive dismissal for failure to state a claim, the plaintiff the must "allege elements of [his or] & Co., F.Sd 324 Microsoft Corp., United States, her claim." 761, 309 facts 765 F.3d 289 F.Sd 270, (4th 193, 281 sufficient Bass v. Cir. 213 E.I. 2003) (4th (4th Cir. to state DuPont de Nemours (citing Cir. all 2002); 2002)). Dickson v. lodice v. Lastly, while complaints, 1978), it the Gordon does v. not Court Leeke, act as liberally 574 the F.2d construes 1147, inmate's 1151 advocate, pro (4th sua se Cir. sponte developing statutory and constitutional claims the inmate failed to clearly Carroll, raise 107 concurring); (4th Cir. on F.3d the face 241, 243 Beaudett v. of his (4th City of complaint. Cir. See 1997) Hampton, 775 Brock v. (Luttig, J., F.2d 1274, 1278 1985). II. SUMMARY OF J^LEGATIONS AND CLAIMS In January and February of 2014, Green was incarcerated in the Fairfax County Adult Detention Center. (Compl. 3-4.)^ On January 24, 2014, Green's dinner meal was "cold" and "uncooked." (Id. to at a 4.) deputy served. Sergeant M.T. about (Id.) your mouth." the Withrow overheard Green complaining quality of the dinner Green very nasty (Id.) Green took the tray and notified Withrow and unprofessional manner," next day, Withrow moved Green false charge of eating unauthorized food. to (Id.) (id.), responded, "you won't win with me I'm the supervisor The been Withrow yelled "take the fucking tray" and "shut that he intended to file a complaint against Withrow. a had Withrow (Id.) another pod (Id.) "In for the As Withrow was ^ The Court employs the pagination assigned to the Complaint by the Court's CM/ECF docketing system. removing Green, Withrow won[']t win with me ^boy.'" On January 29, lunch. (Id.) stated, 2014, Green (Id. a "I told you yesterday at 5.) deputy offered Green food informed you the deputy that Dr. loaf for Okassa had placed him on a no tomatoes diet and he could not eat the food loaf because it contained crushed tomatoes.^ out of his yelled Green (Id.) Green looked cell and saw Withrow standing nearby. to Withrow food. and (Id.) asked Withrow Withrow walked why (Id.) Withrow away. was (Id.) Green refusing The deputy, however, responded that Dr. Okassa had removed Green from the no tomatoes diet. (Id.) Green later discovered that Withrow and his co-workers had applied a good deal of pressure to Dr. Okassa in order to have her withdraw Green's no tomato diet." (Id.) ^ Green explains that he is allergic to tomatoes and the ingestion hives. of tomatoes (Pl.'s Reply 3, causes him ECF No. to swell and break out in 13). " Withrow suggests that the Court should simply disregard as conclusory Green's allegation that Withrow pressured Dr. to remove the no tomato restriction on Green's diet. Okassa Withrow directs the Court to no persuasive authority for the proposition that such an allegation may be summarily disregarded. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted) ("[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.") Moreover, the sudden, unexplained removal of Green from the no tomato diet during the course of Withrow's campaign of retaliation supports the inference that Withrow instigated the alteration in Green's diet. Green could not eat on January 29, January 31, 2014, and, February 1, 2014, food loaf containing crushed tomatoes. Liberally construed, Green 2014, January 30, 2014, as he was only offered (Id.; Pl.'s Reply 3.) contends that, in violation of the Eighth Amendment:^ Claim One Withrow used offensive speaking to Green. Claim Two Withrow deprived Green of an adequate dinner tray on January 24, 2014. Claim Three Withrow failed to provide Green with meals that he could eat from January 2014 through February 1, 2014. III. To make out an Eighth allege facts that indicate subjectively the 'sufficiently culpable Amendment (1) 145 F.3d 164, 167 U.S. 294, 298 (1991)). must allege facts of was extreme discomfort'" ^ fines U.S. (4th Cir. that is amend. VIII. an inmate *sufficiently serious,' officials 1998) Under amounted "'part "Excessive bail shall imposed, nor cruel and Const, claim, of mind.'" that suggest and any 29, must that objectively the deprivation prison state when ANALYSIS suffered or harm inflicted "was that language Johnson v. (quoting Wilson v. the that to of objective prong, (2) with acted and a Quinones, Seiter, the 501 inmate the deprivation complained more the than penalty the that "'routine criminal not be required, nor excessive unusual punishments inflicted." offenders pay for V. Waters, Hudson 989 V. their offenses F.2d 1375, McMillian, against 1380 503 U.S. n.3 1, society.'" (4th 9 Cir. 1993) (1992)). demonstrate such an extreme deprivation, a Strickler "In (quoting order to prisoner must allege 'a serious or significant physical or emotional injury resulting from the F.3d challenged 630, 634 (4th conditions.'" Cir. 2003) De'Lonta (quoting v. Anqelone, Strickler, 989 330 F.2d at 1381). The subjective requires the prong plaintiff of to a deliberate allege facts defendant substantial 825, 837 (1994). of claim a disregarded and indicate a risk of serious harm to his person. 511 U.S. knew that particular Brennan, actually indifference See Farmer v. "Deliberate indifference is a very high standard-a showing of mere negligence will not meet it." Grayson v. Estelle v. Peed, Gamble, 195 F.3d 692, 429 U.S. 97, 695 105-06 (4th Cir. 1999) (citing (1976)). [A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be risk of serious harm exists, drawn that a substantial and he must also draw the inference. Farmer, 511 U.S. at 837. Farmer teaches "that general knowledge of facts creating a substantial risk of harm is not enough. prison official must also draw the inference between The those general facts inmate." and Quinones, 837); Rich (stating specific 168 Bruce, F.3d Thus, to 129 to indifference sufficient risk 145 F,3d at v. same). deliberate facts the of harm (citing 336, survive a an Farmer, 338 inference a to the 511 U.S. (4th motion standard requires form confronting Cir. at 1997) dismiss, the plaintiff to assert that ^'the official in question subjectively recognized a substantial risk of harm" and "that the official actions were rel. Lee 'inappropriate in light of that risk.'" v. Cleveland, (quoting Rich, A. fails the extent based upon Green risk 3:12CV142, seeks Withrow's to allege facts 294, 303 (4th Cir. 2004) of 2013 § 1983 relief B. use of bring an Eighth offensive serious WL harm. 1897114, at Amendment language. *2 Chase (E.D. without more, (citing Wilson v. (4th Cir. 2007))). to Green that indicate such conduct exposed him to (observing that verbal abuse, McKeller, v. Va. Coppedge, May 3, 2013) states no claim for 254 F. App'x 960, 961 Accordingly, Claim One will be dismissed. Inadequate Meals "Allegations needs . F.3d 129 F.3d at 340 n.2). substantial No. 372 Parrish ex Offensive Language To claim in question subjectively recognized that his . . constitutional of [may inadequate be] claim, food sufficient so long 8 for to as human state the nutritional a cognizable deprivation is serious . 2009) . . King v. (internal 294) . citation Lewis, 358 F. App'x 459, omitted) (citing 460 Wilson, (4th Cir. 501 U.S. at In determining whether an Eighth Amendment violation has occurred, "[c]ourts consider deprivation of food." (5th Cir. 2010) six meals fifty-four claim absent an amount Lockamy v. 951 in the Rodriguez, (citation omitted) hour allegation duration 402 F. of the App'x 950, (finding deprivation of period of and insufficient injury as a to result state of a missing meals). To the extent Green seeks to claim based solely on Withrow's bring failure appropriate dinner tray on January 24, an Eighth Amendment claim. White v. (4th Cir. that 1993) "simply does physical not (concluding rise or mental to the Eighth Amendment to provide him with an 2014, he fails to state Gregory, two meals level of injury'"). an a 1 F.3d 267, 269 day on weekends, 'serious or significant Accordingly, Claim Two will be dismissed. Green's claim that Withrow effectively deprived him of any food for Amendment 830 food four claim. (7th Cir. for four hardship.") straight days See Atkins 2011) days v. adequately City of (citations omitted) would Accordingly, Three will be denied. impose a states Chicago, 631 ("Depriving a an Eighth F.3d 823, person of constitutionally significant Withrow's Motion to Dismiss Claim Withrow inununity. also asserts to invoking qualified existence and Withrow's The allegedly Campbell brief, is defendant WL Galloway, of entitled the 483 briefing, do the 3603495, must "at to must dismissal 2010 violated v. approach immunity demand 3:10CV486-HEH, 2010). he to qualified That assertion omits any citation to controlling law. Contrary No. that (1) than suit." at *3 the level 258, 271 with full supporting authority, defendant mention Fisher v. (E.D. identify proper F.3d more "[a] Neale, Sept. specific of {4th Va. its 8, right particularity," Cir. 2007); (2) why the right was not so clearly established as to put a reasonable official on notice of any legal obligations; factual basis official in conduct was {4th Cir. (3) supporting the the defendant's lawful. 1990) . obligation with and See describe with particularity the assertion situation Collinson v. that would have Gott, 895 a reasonable believed F.2d 994, his 998 As Withrow has utterly failed to satisfy this respect to Claim Three, his demand that Claim Three be dismiss based on the defense of qualified immunity of will be denied. IV. The Motion to and denied in Dismiss part. Any CONCLUSION {ECF No. 10) will party wishing to be granted in part file a motion for sununary judgment must do so within ninety (90) days of the date of entry hereof. The Clerk is directed to send a copy of the Memorandum Opinion to Green and counsel of record. /s/ Robert E. Payne Senior United States District Judge Richmond, Virginia 11
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