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Berger v. Gibson

United States District Court, E.D. Arkansas, Pine Bluff Division

November 16, 2017

RUSSELL BERGER ADC #115855 PLAINTIFF
v.
JAMES GIBSON, et al. DEFENDANTS

          PROPOSED FINDINGS AND RECOMMENDATION

         INSTRUCTIONS

         The following proposed Findings and Recommendation have been sent to United States District Judge Billy Roy Wilson. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection, and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         DISPOSITION

         Plaintiff Russell Berger filed a pro se Complaint pursuant to 42 U.S.C. § 1983, the American with Disabilities Act, 42 U.S.C. §§ 12101, et seq., as amended (“ADA”), and the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“RA”), while incarcerated at the Arkansas Department of Correction's Varner Unit (Doc. No. 2). Berger was granted leave to proceed in forma pauperis and ordered to file an Amended Complaint identifying claims relating to only one issue, containing a short statement of the specific role each defendant had in the alleged constitutional violations, and describing the injuries sustained by Berger (Doc. No. 3). Berger filed an Amended Complaint on October 6, 2017 (Doc. No. 4). Berger sues defendants in both their individual and official capacities and seeks both monetary and injunctive relief. See Doc. No. 4 at 2; Doc. No. 2 at 11. For the reasons stated herein, Berger's claims should be dismissed for failure to state a claim upon which relief may be granted.

         I. Screening Standard

         Before docketing the complaint, or as soon thereafter as practicable, the Court must review the complaint to identify cognizable claims or dismiss the complaint if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915A. Rule 8 of the Federal Rules of Civil Procedure requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” In Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007), the Court stated, “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above the speculative level, ” citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). A complaint must contain enough facts to state a claim for relief that is plausible on its face, not merely conceivable. Twombly at 570. However, a pro se plaintiff's allegations must be construed liberally. Burke v. North Dakota Dept. of Corr. & Rehab., 294 F.3d 1043, 1043-1044 (8th Cir.2002) (citations omitted).

         II. Analysis

         Claims Relating to One Issue

         Because Berger's initial complaint described numerous unrelated claims, he was ordered to file an amended complaint identifying claims relating to one issue. Berger narrowed his claims in his Amended Complaint but still raises the following unrelated issues: (1) the inadequacy of his accommodations based on his tall stature (see Doc. No. 4, ¶¶ 16-23, 27-29); and (2) the ADC's failure to provide him with an adequate diabetic diet (see Id. at ¶¶ 24-26). Because these claims are factually unrelated to one another, they may not be prosecuted in a single action against multiple defendants. See Fed. R. Civ. P. 20(a)(2). Additionally, Berger should not be allowed to defeat the filing fee requirements by joining multiple causes of action in one suit. Accordingly, the Court examines the viability of Berger's primary complaint regarding his accommodations and recommends dismissing Berger's diabetic diet claim against Defendants Swopes, Clark, and John Doe (warden). If Berger wishes to pursue his diabetic diet claim, he must file a separate lawsuit.

         Eighth Amendment Conditions of Confinement Claim

         Berger alleges he is 6 foot 8 inches tall and an insulin dependent diabetic with arthritis, degenerative bone disease, and neuropathy. He also alleges he previously had back surgery. He claims that the mattresses, beds, and bedding in his cell are too short for him. He claims that he suffers pain when his feet hit the concrete slab at the end of his bed, and that he cannot sleep because he is too cold as his bedding does not adequately cover him. He also complains that the thermal underwear provided to him is too small and he cannot wear it. Berger further states that due to his height and vision problems, he cannot see televisions (TVs) that were mounted outside his cell. To do so, he has to stoop, causing him pain.

         The treatment a prisoner receives in prison and the conditions of his confinement are subject to scrutiny under the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 832 (1970). To prevail on a conditions of confinement claim, a prisoner must show (1) the alleged deprivation was, “objectively, sufficiently serious, ” and resulted “in the denial of the minimal civilized measure of life's necessities, ” and (2) prison officials were deliberately indifferent to “an excessive risk to inmate health or safety.” Farmer, 511 at 834. In other words, a plaintiff must prove the existence of objectively harsh conditions of confinement, together with a subjectively culpable state of mind by prison officials in condoning or creating the conditions. Choate v. Lockhart, 7 F.3d 1370, 1373 (8th Cir. 1993); Revels v. Vincenz, 382 F.3d 870, 875 (8th Cir. 2004). “[D]iscomfort compelled by conditions of confinement, without more, does not violate the amendment.” Smith v. Coughlin, 748 F.2d 783, 787 (2nd Cir. 1984) (quoting Jackson v. Meachum, 699 F.2d 578, 581 (1st Cir. 1983)).

         Berger has not alleged facts sufficient to support a claim that he has been subjected to objectively harsh conditions of confinement. He has not alleged that he was denied life's necessities such as food, shelter, and water or that he has suffered the unnecessary or wanton infliction of pain. Rather, the facts alleged by Berger show that he has been uncomfortable in his bed, occasionally cold, and unable to watch TV. Berger states he has trouble sleeping, but he does not describe any further details such as how much sleep he has lost. He also does not allege that the temperature in his cell was particularly cold or provide any further allegations to support his contention that he was cold. The Eighth Amendment guarantees prisoners the right to adequate shelter and protection from extreme cold, and courts examine allegations of the severity of the cold and the length of time a prisoner is exposed to it. Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir. 1997).[1] Construing Berger's complaint liberally, as the Court must, Berger fails to assert sufficient facts to support his claim that he was subjected to unconstitutional conditions of confinement because his blanket is too small for him or because he could not fit into the thermal underwear provided. Additionally, his claim that he cannot watch TV without pain is insufficient to state a constitutional claim. “Inmates have no constitutional right to watch television or listen to a radio.” Russell v. Helder, No. 5:15-CV-05082, 2016 WL 4014106, at *6 (W.D. Ark. June 28, 2016), report and recommendation adopted, No. 5:15-CV-5082, 2016 WL 4007698 (W.D. Ark. July 26, 2016) (citing cases). Berger's Eighth Amendment claims should be dismissed for failure to state a claim upon which relief may be granted.

         ADA ...


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