plaintiff testified “that ice persistently formed on the walls of the cells suggest[ed] that temperatures in the cell block were literally freezing, during the day as well as at night, and that this condition continued unchanged for several winters”
How later courts described this case
- plaintiff testified “that ice persistently formed on the walls of the cells suggest[ed] that temperatures in the cell block were literally freezing, during the day as well as at night, and that this condition continued unchanged for several winters”
- no constitutional violation for limited denial of underwear, blankets, mattress, exercise, and visits
- “‘To establish standing, a party must, at a minimum, have suffered an ‘injury-in- fact,’ fairly traceable to the defendant’s conduct, which is likely to be redressed by a favorable decision.’”
- finding no Eighth Amendment violation when inmate was placed in “strip cell for two days without clothing, bedding, or running water, with a concrete floor, a concrete slab for a bed, and cold air blowing on him”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
ZACHERY TREY ALLEN PLAINTIFF
ADC #158242
v. No: 4:23-cv-00198-KGB-PSH
STEVEN D. BROWN, et al. 1 DEFENDANTS
PROPOSED FINDINGS AND RECOMMENDATION
INSTRUCTIONS
The following Proposed Recommendation has been sent to United States
District Judge Kristine G. Baker. 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 Zachery Trey Allen filed a pro se complaint pursuant to 42 U.S.C. §
1983 (Doc. No. 2) while incarcerated at the Arkansas Division of Correction’s
Tucker Unit. Allen was subsequently granted leave to proceed in forma pauperis
1 The Clerk of Court is directed to remove Warden Todd Ball as a defendant in
this case because he is not listed as a defendant or described in Allen’s amended
complaint (Doc. No. 7).
and invited to file an amended complaint to clarify and narrow his claims. Doc. Nos.
4 & 6. He was cautioned that an amended complaint would render his original
complaint without legal effect and that only claims properly set out in the amended
complaint would be allowed to proceed. Doc. No. 6 at 4. Allen filed an amended
complaint on May 2, 2023 (Doc. No. 7). The Court has liberally construed2 Allen’s
amended complaint for screening purposes and finds that his claims should be
dismissed for failure to state a claim upon which relief may be granted.
I. Screening Standard
Federal law requires courts to screen prisoner complaints. 28 U.S.C. § 1915A,
1915(e)(2). Claims that are legally frivolous or malicious; that fail to state a claim
for relief; or that seek money from a defendant who is immune from paying damages
should be dismissed before the defendants are served. 28 U.S.C. § 1915A,
1915(e)(2). Although a complaint requires only a short and plain statement of the
claim showing that the pleader is entitled to relief, the factual allegations set forth
therein must be sufficient to raise the right to relief above the speculative level. See
Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555
(2007) (“a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment]to
2 See Stone v. Harry, 364 F.3d 912, 915 (8th Cir. 2004) (“When we say that a pro
se complaint should be given liberal construction, we mean that if the essence of an
allegation is discernible, even though it is not pleaded with legal nicety, then the district
court should construe the complaint in a way that permits the layperson’s claim to be
considered within the proper legal framework.”).
relief’ requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. . . .”). While construed liberally, a pro se
complaint must contain enough facts to state a claim to relief that is plausible on its
face, not merely conceivable.
II. Analysis
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that the
conduct of a defendant acting under color of state law deprived him of a right,
privilege, or immunity secured by the United States Constitution or by federal law.
42 U.S.C. § 1983.
Allen complains that defendants Sergeant David Hutchinson and Corporal
Jerome Eason placed him in an isolation cell on January 1, 2023, with no clothing
or a blanket on the orders of Lieutenant Steven Brown. Doc. No. 7 at 4. He claims
that Sergeant Roberson denied him a blanket or boxers on January 2, 2023, and that
Major Johnson released him on January 4, 2023, but denied witnessing him naked.
Id. Allen claims that temperatures outside were below 40 and the fans were turned
on for two days. Id. Allen fails to state a claim upon which relief may be granted
for the reasons described below.
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. “The Constitution
‘does not mandate comfortable prisons,’ but neither does it permit inhumane ones, .
. . ” Farmer v. Brennan, 511 U.S. at 832 (quoting Rhodes v. Chapman, 452 U.S.
337, 349 (1981)); see also O’Leary v. Iowa State Men’s Reformatory, 79 F.3d 82,
83–84 (8th Cir. 1996) (no constitutional violation for limited denial of underwear,
blankets, mattress, exercise, and visits); Williams v. Delo, 49 F.3d 442, 446 (8th
Cir.1995) (no constitutional violation for inmate confined to a “strip cell” for four
days without clothes, water, bedding, a mattress, soap, or other hygiene items);
Seltzer-Bey v. Delo, 66 F.3d 961, 963-964 (8th Cir. 1995) (finding no Eighth
Amendment violation when inmate was placed in “strip cell for two days without
clothing, bedding, or running water, with a concrete floor, a concrete slab for a bed,
and cold air blowing on him”).
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 in determining whether there
has been a constitutional violation. Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir.
1997). See e.g., Corselli v. Coughlin, 842 F.2d 23, 27 (2d Cir. 1988) (plaintiff
alleged he was exposed to cold temperatures for approximately three months and it
was so cold that ice was forming in his toilet); Dixon v. Godinez, 114 F.3d at 644
(plaintiff testified “that ice persistently formed on the walls of the cells suggest[ed]
that temperatures in the cell block were literally freezing, during the day as well as
at night, and that this condition continued unchanged for several winters”); Bennett
v. Chitwood, 519 Fed. Appx. 569, 574 (11th Cir. 2013) (no objectively serious
deprivation was demonstrated where the “case [was] not one in which ice formed
inside the cell”); Diggs v. Godinez, 1997 WL 308847, at *6 (N.D. Ill. June 3, 1997)
(plaintiff asserted “that ice often formed on the inside of [the plaintiff’s] own cell,
and that [the plaintiff] lacked extra blankets or a space heater” for one year);
Dillingham v. Schofield, 2011 WL 3664470, at *8 (E.D. Tenn. Aug. 19, 2011)
(plaintiff alleged that the temperature outdoors was below zero and that ice formed
in the cell for a period of three days, which caused the skin on the plaintiff’s fingers
to crack and bleed).
Allen alleges he was without clothing or a blanket for three days while housed
in an isolation cell. He alleges no specific injury as a result of these conditions,3
3 Allen mentions not receiving his medications for schizophrenia, but he does not
allege the named defendants denied him this medication or were otherwise deliberately
indifferent to his serious medical needs.
other than humiliation.4 His main complaint is that he was cold; he maintains that
temperatures were below 40 degrees on January 1-4, 2023. Doc. No. 7 at 4. He
does not allege that ice formed in his cell or that he suffered any particular injury
due to being cold.5 Accepting Allen’s allegations as true, the Court recognizes that
he would have certainly been uncomfortable in these conditions. Unfortunately, the
cited case law compels the Court to find that the alleged conditions do not rise to the
level of a denial of a civilized measure of life’s necessities. Accordingly, Allen fails
to state a claim upon which relief may be granted.
III. Conclusion
For the reasons stated herein, Allen’s conditions-of-confinement claims
should be dismissed without prejudice for failure to state a claim upon which relief
may be granted. It is therefore recommended that:
4 “Because a § 1983 action is a type of tort claim, general principles of tort law
require that a plaintiff suffer some actual injury before he can receive compensation.”
Irving v. Dormire, 519 F.3d 441, 448 (8th Cir. 2008) (citing Carey v. Piphus, 435 U.S.
247, 253-55 (1978)); see also Johnson v. State of Mo., 142 F.3d 1087, 1088 (8th Cir.
1998) (“‘To establish standing, a party must, at a minimum, have suffered an ‘injury-in-
fact,’ fairly traceable to the defendant’s conduct, which is likely to be redressed by a
favorable decision.’”) (quoting Brouhard v. Lee, 125 F.3d 656, 661 (8th Cir. 1997)).
Additionally, a prisoner-plaintiff may not recover compensatory damages for emotional
injury without also showing a physical injury (or the commission of a sexual act). 42
U.S.C. § 1997e(e).
5 The Court takes judicial notice that the low temperatures in Central Arkansas on
the dates in question ranged from 45-66 degrees Fahrenheit, well above freezing. See
Fed. R. Evid. 201; https://www.wunderground.com/history/weekly/us/ar/little-
rock/KLIT/date/2023-1-1.
1. Allen’s claims be dismissed without prejudice.
2. Allen’s pending motions for injunctive relief (Doc. Nos. 3 & 8) be
denied as moot. °
3. Dismissal of this action count as a “strike” within the meaning of 28
U.S.C. § 1915(g).
4. The Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma
pauperis appeal from the order adopting this recommendation would not be taken in
good faith.
SO RECOMMENDED this 9th day of May, 2023.
UNITED STATES MAGISTRATE JUDGE
6 Allen’s motions for injunctive relief should also be denied because they are
unrelated to the claims he sets forth in his amended complaint concerning his placement
on behavior control January 1-4, 2023. In his first motion for injunctive relief, he asks
for a transfer to another unit because Major Antonio D. Johnson Jr. let his staff threaten
him with physical abuse and refused to allow him anything to drink from February 22-24,
2023. Doc. No. 3. In his second motion for a temporary restraining order, Allen alleges
that guards at the Tucker Unit are threatening him, using intimidation tactics, and
withholding his legal mail. Doc. No. 8.