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Foster v. Andrews

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

March 20, 2018

RICHARD FOSTER, ADC #168964 PLAINTIFF
v.
GARY ANDREWS, Lieutenant, Faulkner County Jail Unit 1, et al. DEFENDANTS

          RECOMMENDED PARTIAL DISPOSITION

         The following Recommended Partial Disposition ("Recommendation") has been sent to United States District Judge James M. Moody, Jr. Any party may file written objections to this Recommendation. Objections must be specific and include the factual or legal basis for disagreeing with the Recommendation. An objection to a factual finding must specifically identify the finding of fact believed to be wrong and describe the evidence that supports that belief.

         An original and one copy of the objections must be received by the Clerk of this Court within fourteen (14) days of this Recommendation. If no objections are filed, Judge Moody can adopt this Recommendation without independently reviewing all of the evidence in the record. By not objecting, you may also waive any right to appeal questions of fact.

         I. Introduction

         Plaintiff Richard Foster ("Foster") is a prisoner in the Arkansas Department of Correction. He has filed a pro se § 1983 Substituted Complaint alleging that Defendants violated his constitutional rights while he was a pretrial detainee and a convicted prisoner at the Faulkner County Detention Center. Doc. 15. Before Foster may proceed with action, the Court must screen his allegations.[1]

         II. Discussion

         A. Defendant Randell

         Foster named Major John Randell ("Randell") in his original Complaints, which were struck from the record as being filed in violation of the Federal Rules of Civil Procedure. Docs. 2, 4, 5, 9, & 13. Foster's Substituted Complaint does not name Randell or contain any factual allegations against him. Doc. 15. Thus, the Court recommends that Randell be dismissed, without prejudice, as a Defendant in this lawsuit.

         B. Defendants Andrews, Page, Riedmueller, and Ryals

         1. Conditions of Confinement Claims

         In his Substituted Complaint, Foster alleges that Defendants Lieutenant Gary Andrews ("Andrews"), Sergeant Rusty Page ("Page"), Jail Administrator Christopher Riedmueller ("Riedmueller"), and Sheriff Tim Ryals ("Ryals") subjected him to a unconstitutional conditions of confinement by: (1) forcing him to sleep on a floor containing fecal matter, trash, and food; (2) failing to remove black mold from the ceiling and walls; and (3) confining him in a cell with a broken call button and exposed wires.

         To state a viable § 1983 conditions of confinement claim, Foster must plead facts suggesting that: (1) objectively, he was subjected to conditions that created a substantial risk of serious harm to his health or safety; and (2) subjectively, Defendants were deliberately indifferent to the risk of harm posed by those conditions. See Davis v. Oregon Cnty., Mo., 607 F.3d 543, 548-49 (8th Cir. 2010); Revels v. Vincenz, 382 F.3d 870, 875 (8th Cir. 2004).

         Foster contends that he slept on a filthy floor and was exposed to black mold for six months, and that doing so caused him to become physically ill. See Beaulieu v. Ludeman, 690 F.3d 1017, 1045 (8h Cir. 2012) ("Conditions, such as a filthy cell, may be tolerable for a few days and intolerably cruel for weeks or months"). The Court concludes, for screening purposes only, that Foster has pled a viable § 1983 unconstitutional conditions of claim, regarding sleeping on the floor and the presence of black mold, against Andrews, Page, Riedmueller, and Ryals. Thus, the Court recommends that service be ordered as to these specific claims only.

         In contrast, Foster alleges that he lived in a cell with a broken call button and exposed wires for only ten days. See Turner v. Mull, 784 F.3d 485, 491 (8th Cir. 2015) (finding no constitutional violation where a prisoner was exposed to unconstitutional conditions for a brief duration). Importantly, Foster does not contend that he was actually harmed, in any way, by temporarily living in a cell with exposed wires and a broken call button. See Smith v. Copeland, 87 F.3d 265, 268 (8th Cir. 1996) (finding no constitutional violation where a prisoner failed to demonstrate that he was actually harmed as a result of being exposed to allegedly inhumane conditions of confinement); Seltzer-Bey v. Delo, 66 F.3d 961, 964 (8th Cir. 1995) (same). Thus, the Court recommends that Foster's unconstitutional conditions of confinement claim against Andrews, Page, Reidmueller, and Ryals regarding the broken call button and exposed wires be dismissed, without prejudice, for failing to state a claim upon which relief may be granted.

         2. Personal ...


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