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Smith v. Orsi

United States District Court, W.D. Arkansas, Fayetteville Division

February 20, 2019

JOSHUA CODY SMITH PLAINTIFF
v.
KEN ORSI, Supervisor, Trinity Services; and NURSE FRAN DEFENDANTS

          OPINION AND ORDER

          TIMOTHY L. BROOKS STATES DISTRICT JUDGE.

         Joshua Cody Smith ("Smith"), currently an inmate of the Benton County Detention Center ("BCDC"), has filed a civil rights action under 42 U.S.C. § 1983. He proceeds pro se and in forma pauperis.

         Smith names as Defendants Ken Orsi, the supervisor of Trinity Food Services at the BCDC, and Nurse Fran, a member of the medical staff at the BCDC. Smith has sued the Defendants in both their individual and official capacities.

         The case is before the Court for preservice screening under the provisions of the Prison Litigation Reform Act ("PLRA"). Pursuant to 28 U.S.C. § 1915A, the Court has the obligation to screen any complaint in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915(e)(2).

         I. BACKGROUND

         According to the allegations of the Complaint, on December 14, 2018, unbeknownst to Smith, his drink, a "dark soda pop" served in a paper cup, contained the tab from the top of the drink can. When Smith took the last swallow of his drink, the can tab became lodged in his throat. Smith alleges the tab caused him to choke, cut his throat, and made him spit up blood. Smith asserts that he had purchased the drink from Trinity Food Services. Smith suspects that the tab was put in his drink by "someone." Smith names Orsi as the involved Defendant on this claim.

         Next, Smith alleges he was denied medical care. Specifically, he asserts that Nurse Fran told him: "Hope you don't ask me for a cough drop. My name is Fran with medical if you want to put a grievance in." Smith names both Nurse Fran and Orsi as the Defendants on this claim.

         II. LEGAL STANDARD

         Under the PLRA, the Court is obligated to screen the case prior to service of process being issued. The Court must dismiss a complaint, or any portion of it, if it contains claims that: (1) are frivolous, malicious; (2) fail to state a claim upon which relief may be granted; or, (3) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i-iii).

         A claim is frivolous if "it lacks an arguable basis either in law or fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim fails to state a claim upon which relief may be granted if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "In evaluating whether a pro se plaintiff has asserted sufficient facts to state a claim, we hold 'a pro se complaint, however inartfully pleaded ... to less stringent standards than formal pleadings drafted by lawyers.'" Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir. 2014) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).

         III. DISCUSSION

         Section 1983 requires proof of two elements: (1) the conduct complained of must be committed by a person acting under color of state law, and (2) the conduct must deprive the plaintiff of rights or privileges secured by the Constitution or laws of the United States.

         1. The Can Tab

         Smith's claim regarding the can tab being in his drink fails as a matter of law. Smith does not allege that Orsi served him the drink, poured the drink in the cup, or had any knowledge that the can tab was in the cup. For a supervisor to be held liable under § 1983, he must be personally involved in or be directly responsible for the events at issue. See Hughes v. Stottlemyre,454 F.3d 791, 798 (8th Cir. 2006). A supervisor cannot be held liable merely because someone he has supervisory authority over is alleged to have engaged in unconstitutional conduct. Ambrose v. Young,474 F.3d 1070, 1079 (8th Cir. 2007). Furthermore, an isolated incident of a foreign ...


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