United States District Court, E.D. Arkansas, Western Division
RECOMMENDED PARTIAL DISPOSITION
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.
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.
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
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.
Defendants Andrews, Page, Riedmueller, and Ryals
Conditions of Confinement Claims
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
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.
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.
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