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Gilliam v. Kelly

United States District Court, E.D. Arkansas, Eastern Division

May 14, 2015

ALONZO GILLIAM, III ADC# 098194, Plaintiff,
v.
WENDY L. KELLY, Deputy Director, ADC; et al., Defendants.

ORDER

KRISTINE G. BAKER, District Judge.

The Court has received five Proposed Findings and Recommendations ("Recommendations") from United States Magistrate Judge Joe J. Volpe (Dkt. Nos. 165, 226, 331, 343. 425) and plaintiff Alonzo Gilliam III's objections (Dkt. No. 176, 250, 346, 369, 431, 432). Mr. Gilliam has also filed two "Appeals" to this Court of two orders entered by Magistrate Judge Volpe (Dkt. Nos. 323, 334), which the Court construes, to the extent they apply to any Recommendation, as objections to the Recommendations. After a review of all the Recommendations, and the objections received thereto, as well as a de novo review of the record, the Court adopts in their entirety the first, third, fourth, and fifth Recommendations. The Court adopts, as modified by this Order, the second Recommendation. To the extent necessary, the Court denies both of Mr. Gilliam's attempts to appeal to this Court two orders entered by Judge Volpe.

The first Recommendation recommends that the Court grant defendant Latoris Willis's motion to dismiss (Dkt. No. 131). In response to the first Recommendation, Mr. Gilliam filed a "Notice, " indicating that he "has no objection to defendant Willis being dismissed as a defendant" (Dkt. No. 176). Accordingly, the Court adopts in its entirety the first Recommendation and dismisses Mr. Gilliam's claims against Mr. Willis (Dkt. No. 165).

The second Recommendation recommends that the Court grant defendant Arthur Witherspoon's motion to dismiss (Dkt. No. 199). The Court writes separately to address Mr. Gilliam's objections. Mr. Gilliam alleges two incidents involving Mr. Witherspoon. First, Mr. Gilliam alleges that he was told by Mr. Witherspoon that a maintenance slip had been submitted to fix lighting problems in his cell and that appropriate staff were aware of the problem. Second, Mr. Gilliam claims that Mr. Witherspoon "fail[ed] to stop the tray that had feces on it from being sent to plaintiff when he by his own admission stated that Sgt. P. Hill sent the tray to plaintiff" (Dkt. No. 250, at 2). The Court will address each of these claims in turn.

As to his cell-lighting and maintenance slip allegations, Mr. Gilliam does not allege in his complaint that Mr. Witherspoon lied or deceived him about the maintenance slip or about Mr. Witherspoon's statement that appropriate staff were aware of the lighting problem. Accordingly, the second Recommendation finds that Mr. Gilliam failed to allege in his complaint that Mr. Witherspoon subjectively knew of but disregarded a threat to Mr. Gilliam's safety as required to state a valid claim regarding his conditions of confinement. See Beaulieu v. Ludeman, 690 F.3d 1017, 1045 (8th Cir. 2012). For this reason, Judge Volpe recommends in the second Recommendation dismissal of Mr. Gilliam's allegations against Mr. Witherspoon. However, Judge Volpe stated in the second Recommendation in a footnote, "If Plaintiff believes that Witherspoon was aware that maintenance had not been informed of the lighting situation, he may indicate as much in his objections to this Recommendation. The Court reminds Plaintiff that such allegations must plead enough facts to be facially plausible." (Dkt. No. 226, n.5).

In fact, although Mr. Gilliam acknowledges that he did not allege that Mr. Witherspoon had lied or deceived him, he contends that, after conducting some discovery, he now has "received documentation that shows not only did [Mr.] Witherspoon lie and deceive Plaintiff but several other defendants did as well because none of them alerted maintenance or submitted a maintenance repair slip as they had informed Plaintiff they had regarding the lights" and that, as a result, Mr. Gilliam was forced to "remain in the cell longer expose[d] to harassment, retaliation and prolonged exposure to darkness." (Dkt. No. 250, at 2). Mr. Gilliam requests permission to file an amended complaint to add these allegations.

Federal Rule of Civil Procedure 15(a) grants discretion to the Court to grant or deny a motion by a party to amend that party's pleading when the parties can no longer amend as a matter of course. Fed.R.Civ.P. 15(a). The Eighth Circuit has held that "futility constitutes a valid reason for denial of a motion to amend.'" K-tel Int'l, Inc. Sec. Litig., 300 F.3d 881, 899 (8th Cir. 2002) (quoting Knapp v. Hanson, 183 F.3d 786, 790 (8th Cir. 1999)). Further, a district court may sua sponte dismiss a plaintiff's claims without notice and an opportunity to be heard when it is patently obvious the plaintiff cannot prevail. Smith v. Boyd, 945 F.2d 1041, 1043 (8th Cir. 1991) (affirming district court's sua sponte dismissals of prisoner's "meritless" claims). The Court denies as futile Mr. Gilliam's request to amend his complaint to add these allegations that Mr. Witherspoon lied to and deceived Mr. Gilliam. Mr. Gilliam has not exhausted his administrative remedies against Mr. Witherspoon, making any request to amend his complaint futile.

Mr. Gilliam alleges that on March 5 or 6, 2012, he was placed in a cell without lighting and that Mr. Witherspoon, along with other defendant officers, told Mr. Gilliam that the officers were going to submit a maintenance slip and later informed Mr. Gilliam that the maintenance slips had been submitted (Dkt. No. 9, at 12). Mr. Gilliam repeated these allegations against Mr. Witherspoon and the other defendants in his second amended complaint (Dkt. No. 275). In the fifth Recommendation, Judge Volpe notes that Mr. Gilliam failed to exhaust his administrative remedies with regard to the March 5 or 6 cell-lighting and maintenance-slip incidents because he failed to identify the prison employees about whom he was filing his grievances and, thus, did not follow the Arkansas Department of Correction grievance directives (Dkt. No. 425). Moreover, the evidence supporting Judge Volpe's fifth Recommendation as to other defendants also confirms that Mr. Gilliam failed to exhaust his administrative remedies as to Mr. Witherspoon for the cell-lighting and maintenance-slip allegations (Dkt. Nos. 2, at 49; 383-12). In an affidavit, the Grievance Coordinator for the Arkansas Department of Correction states that Mr. Gilliam submitted only two grievances regarding the cell-light and maintenance-slip issues and that neither of these grievances identified individual prison employees (Dkt. No. 383-12, at 2).

The Court has reviewed Mr. Gilliam's grievances, which he attached to his initial complaint. Mr. Gilliam's grievances regarding the cell-lighting and maintenance slip incidents do not mention or identify Mr. Witherspoon or the other defendants (Dkt. No. 2, at 39-45, 49). Accordingly, based on a review of Mr. Gilliam's pleadings and the record evidence in this case, Mr. Gilliam has not exhausted the grievance procedures for his cell-lighting and maintenance-slip allegations against Mr. Witherspoon. Therefore, the Court adopts the second Recommendation as modified in this Order and dismisses Mr. Gilliam's cell-lighting and maintenance-slip claims against Mr. Witherspoon.

Next, Mr. Witherspoon moves to dismiss Mr. Gilliam's allegations regarding the dirty food tray. Mr. Gilliam has responded to Mr. Witherspoon's motion to dismiss (Dkt. No. 215). The second Recommendation does not address this claim. Mr. Gilliam attached to his initial complaint the grievances and related documents regarding this claim (Dkt. No. 2, at 46). These materials and Mr. Gilliam's allegations indicate that Mr. Gilliam received a tray he believed had feces on it, that Mr. Witherspoon returned the allegedly dirty tray, and that Mr. Witherspoon allegedly gave a new tray to Mr. Gilliam. Mr. Witherspoon moves to dismiss this claim, contending that it fails to state a valid conditions of confinement and deliberate indifference claim, that Mr. Witherspoon is entitled to qualified immunity, and that Mr. Gilliam has made no prior showing of a physical injury as required under the Prison Litigation Reform Act.

To survive Mr. Witherspoon's motion to dismiss the allegations regarding the dirty food tray, Mr. Gilliam's claim "must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554 570 (2007)). Accepting Mr. Gilliam's allegations as true, his claim regarding the food tray fails to state a claim for relief that is plausible on its face.

Based on his allegations and response to Mr. Witherspoon's motion to dismiss, Mr. Gilliam contends that his allegations regarding the dirty food tray state a valid conditions of confinement and deliberate indifference claim against Mr. Witherspoon (Dkt. Nos., 9, at 10-11; 275, at 18). "To establish a conditions-of-confinement' claim... [Mr. Gilliam] must show that the alleged wrongdoing was objectively harmful enough to establish a constitutional violation.'" Schoelch v. Mitchell, 625 F.3d 1041, 1047 (8th Cir. 2010) (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992)). Mr. Gilliam must demonstrate that he suffered "extreme deprivations, meaning that he was denied the minimal civilized measure of life's necessities.'" Id. Further, Mr. Gilliam must allege that Mr. Witherspoon actually knew of, but disregarded the threat to, Mr. Gilliam's safety.

Mr. Gilliam's allegations regarding the food tray do not establish an objectively harmful "extreme deprivation" to Mr. Gilliam. Mr. Gilliam alleges that Mr. Witherspoon laughed when Mr. Gilliam stated there were feces on the food tray, that he indicated to Mr. Gilliam that another officer sent the dirty food tray, and that he then returned the food tray and brought back a new one to Mr. Gilliam. Accepting these allegations as true, the Court finds that Mr. Gilliam fails to allege that he "suffered an objectively serious mental or physical injury from the conditions of his confinement." Id .; see Smith v. Copeland, 87 F.3d 265, 268-69 (8th Cir. 1996) (holding that, where plaintiff was subject to an "overflowed toilet in his cell for four days, " such "allegations regarding raw sewage' d[id] not rise to a level of constitutional significance" because plaintiff "did not allege that he was exposed to disease or suffered any other consequences of the exposure" and was "offered an opportunity to flush the toilet and to clean up the mess but he declined"); White v. Nix, 7 F.3d 120, 121 (8th Cir. 1993) (finding no Eighth Amendment violation where prisoner was confined to unsanitary cell for 11 days but where cleaning supplies were available to prisoner).

Accordingly, the Court finds that Mr. Gilliam's allegations against Mr. Witherspoon regarding the dirty food tray fail to state a claim upon which the Court may grant relief. Therefore, the Court grants Mr. ...


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