United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
TIMOTHY L. BROOKS STATES DISTRICT JUDGE.
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.
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.
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. §
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.
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.
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.
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)).
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.
The Can Tab
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 ...