# Harvey v. Holloway

> District Court, W.D. Arkansas · February 28, 2018

URL: https://www.frixlaw.com/law-library/cases/10009025

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** February 28, 2018
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10009025

## How later opinions describe it (automated extraction)

- noting the objective component is “contextual and responsive to contemporary standards of decency”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
KENDALL CHANCE HARVEY PLAINTIFF
V. CASE NO. 5:18-CV-05036
SHERIFF SHAWN HOLLOWAY;
LIEUTENANT ROBIN HOLT; DAWN
OSBORNE, Kitchen Supervisor, and
THEMA SNODGRASS, Kitchen Lead DEFENDANTS
OPINION AND ORDER
Plaintiff Kendall C. Harvey filed this action pursuant to 42 U.S.C. §1983. He
proceeds pro se and in forma pauperis. 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. § 1915A(a).
|. BACKGROUND
According to the allegations of the Complaint, on January 11, 2018, inmates at
the Benton County Detention Center were served contaminated food causing sickness
throughout the jail. Plaintiff indicates he was served lunch at around 11:30 a.m. After
lunch on January 11th, Plaintiff took a nap. Plaintiff alleges that he woke up
approximately two to three hours later feeling sick to his stomach and having dizzy
spells.
Plaintiff asserts that he then began vomiting, followed by “really bad” diarrhea.
Plaintiff alleges he was sick with stomach pains and diarrhea for about a week.

Plaintiff alleges Sheriff Holloway, Lieutenant Robin Holt, Dawn Osborne, and
Thema Snodgrass were negligent in the performance of their jobs when they allowed,
and/or participated in the serving of contaminated food to the inmates.
Plaintiff sues the Defendants in both their individual and official capacities. As
relief, he asks for compensatory damages.
ll. 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, or fail to state a claim upon which relief
may be granted; or, (2) seek monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915A(b).
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)).
However, mere conclusory allegations with no supporting factual averments are
insufficient to state a claim upon which relief can be based. Allen v. Purkett, 5 F.3d
1151, 1153 (8th Cir. 1993); see also Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).
“[A] pro se plaintiff requires no special legal training to recount the facts surrounding

his alleged injury, and he must provide such facts if the court is to determine whether
he makes out a claim on which relief can be granted.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991) (citations omitted).
lll. DISCUSSION
Section 1983 provides a federal cause of action for the deprivation, under color
of law, of a citizen's "rights, privileges, or immunities secured by the Constitution and
laws" of the United States. In order to state a claim under 42 U.S.C. § 1983, plaintiff
must allege that the defendant acted under color of state law and that he violated a
right secured by the Constitution. West v. Atkins, 487 U.S. 42 (1988); Dunham v.
Wadley, 195 F.3d 1007, 1009 (8th Cir. 1999). The deprivation must be intentional;
mere negligence will not suffice to state a claim for deprivation of a constitutional right
under § 1983. Daniels v. Williams, 474 U.S. 327 (1986); Davidson v. Cannon, 474 U.S.
344 (1986). To the extent Plaintiff attempts to assert a negligence claim, it is insufficient
as a matter of law.
The Eighth Amendment to the United States Constitution prohibits the imposition
of cruel and unusual punishment.' U.S. Const. amend. VIII. The Cruel and Unusual
Punishment Clause of the Eighth Amendment forbids conditions that involve the
“wanton and unnecessary infliction of pain,” or are “grossly disproportionate to the
severity of the crime.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981).

' Plaintiff is a pretrial detainee. However, the Eighth Circuit has consistently applied
the Eighth Amendment to conditions of confinement claims brought by pretrial
detainees. See, e.g., Davis v. Oregon Cnty., Mo., 607 F.3d 543, 548 (8th Cir. 2010)
(“Pretrial detainees are entitled to the same protection under the Fourteenth
Amendment as imprisoned convicts receive under the Eighth Amendment.”) (internal
quotation marks and citation omitted).

“[W]hen the State takes a person into its custody and holds him there against his

will, the Constitution imposes upon it a corresponding duty to assume some responsibility
for his safety and general well-being.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 851
(1998) (citation omitted). The Constitution does not mandate comfortable prisons, but
neither does it permit inhumane ones. See Farmer v. Brennan, 511 U.S. 825, 832 (1994).
“The Eighth Amendment prohibits punishments that deprive inmates of the minimal
civilized measure of life’s necessities.” Smith v. Copeland, 87 F.3d 265, 268 (8th Cir.
1996). Jail or prison officials must provide reasonably adequate ventilation, sanitation,
bedding, hygienic materials, food, and utilities. Prison-condition claims may include
threats to an inmate’s health and safety. /rving v. Dormire, 519 F.3d 441, 446 (8th Cir.
2008) (citation omitted).
To state an Eighth Amendment claim, the plaintiff must allege that prison officials
acted with “deliberate indifference” towards conditions at the detention facility that created
a substantial risk of serious harm. Farmer, 511 U.S. at 834. “Conditions of confinement,
however, constitute cruel and unusual punishment ‘only when they have a mutually
enforcing effect that produces deprivation of a single, identifiable human need such as
food, warmth, or exercise.” Whitnack v. Douglas Cnty., 16 F.3d 954, 957 (8th Cir. 1994)
(quoting Wilson v. Sieter, 501 U.S. 294 (1991)).
The deliberate indifference standard involves both an objective and subjective
component. The objective component requires an inmate to show that “he is incarcerated
under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834
(citations omitted); see also Hudson v. McMillian, 503 U.S. 1, 2 (1992) (noting the
objective component is “contextual and responsive to contemporary standards of

decency”) (quotation omitted). To satisfy the subjective component, an inmate must show
that prison officials had “a sufficiently culpable state of mind.” Farmer, 511 U.S. at 834
(citations omitted); see also Brown v. Nix, 33 F.3d 951, 954-55 (8th Cir. 1994). The
subjective component “requires proof of a reckless disregard of a known risk.” Crow v.
Montgomery, 403 F.3d 598, 602 (8th Cir. 2005) (citation omitted).
In this case, Plaintiff's only allegation is that he was served contaminated food on
a single occasion. Plaintiff does not allege he was routinely served contaminated food or
that food was routinely prepared in a manner presenting an immediate danger to his
health. See, e.g., Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir. 1992) (“Wishon has
presented no evidence that the food he was served was nutritionally inadequate or
prepared in a manner presenting an immediate danger to his health, or that his health
suffered as a result of the food.”).
In Islam v. Jackson, 782 F. Supp. 1111, 1114-15 (E.D. Vir. 1992), the court held
that serving one meal contaminated with maggots and meals under unsanitary conditions
for thirteen days was not crue! and unusual punishment. In George v. King, 837 F.2d 705,
707 (5th Cir. 1988), a case nearly identical to the one before us, the court held that “a
single incident of unintended food poisoning, whether suffered by one or many prisoners
at an institution, does not constitute violations of the constitutional rights of the affected
prisoners.” /d. In so holding, it noted that it was confronted with “a single incident of mass
food poisoning of the kind occasionally experienced by those in military service or in other
institutional settings, as well as individually in the more routine course of daily life.” /d.;
see also Bennett v. Misner, 2004 WL 2091473, at *20 (D. Or. Sept. 17, 2004) (“Neither
isolated instances of food poisoning, temporary lapses in sanitary food service, nor

service of meals contaminated with maggots are sufficiently serious to constitute an
Eighth Amendment violation.”). Plaintiff's allegations that he was served contaminated
food on a single occasion and became temporarily ill as a result are insufficient to state a
claim of constitutional dimension.
Further, with respect to Sheriff Holloway and Lieutenant Holt, Plaintiff has not
alleged that either directly participated in the alleged unconstitutional violations. “Liability
under § 1983 requires a causal link to, and direct responsibility for, the deprivation of
rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (citation omitted). “A
supervisor is not vicariously liable under 42 U.S.C. § 1983 for an employee's
unconstitutional activity.” White v. Holmes, 21 F.3d 277, 280 (8th Cir. 1994). Instead,
the supervisor must be personally involved in the alleged constitutional violation or his
corrective inaction must constitute deliberate indifference towards the constitutional
violation. Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995).
In George, the Fifth Circuit stated that “[i]f prisoners regularly and frequently suffer
from food poisoning with truly serious medical complications as a result of particular,
known unsanitary practices which are customarily followed by the prison food service
organization, and the authorities without arguable justification refuse to attempt remedial
measures, the requisite indifference might well be manifested or inferred.” /d. at 707. In
this case, Plaintiff has made no allegations sufficient to establish a basis for supervisory
liability.
Plaintiff's official capacity claims are the equivalent of claims against Benton
County. “Official-capacity liability under 42 U.S.C. § 1983 occurs only when a
constitutional injury is caused by ‘a government's policy or custom, whether made by its

lawmakers or by those whose edicts or acts may fairly be said to represent official policy.”
Grayson v. Ross, 454 F.3d 802, 810-811 (8th Cir. 2006) (quoting Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 694 (1978)). Plaintiff has not alleged the existence of any custom
or policy of Benton County that was a moving force behind the alleged constitutional
violations.
IV. CONCLUSION
No plausible claims are stated. This case is DISMISSED WITHOUT
PREJUDICE. See 28 U.S.C. § 1915(e)(2)(B)(i-ii) (in forma pauperis action, or any
portion of it, may be dismissed at any time due to frivolousness or for failure to state a
claim).
The dismissal of this case constitutes a strike within the meaning of the Prison
Litigation Reform Act. The Clerk is directed to place a § 1915(g) strike flag on this
case. A,
IT 1S SO ORDERED on thie day of February, 2018.

US bas uct Cuuxt i : "7
TESTERN DST ARKANSAS _AOTHYL BROOKS
FEB 28 2018 fe ITED/STATES DISTRICT JUDGE
DOUGLAS F. YOUNG, Clerk
Deputy Clerk

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10009025. Public record. Not legal advice.