# Kimble v. Jenkins

> District Court, W.D. North Carolina · June 11, 2019

URL: https://www.frixlaw.com/law-library/cases/10254669

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** June 11, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:19-cv-57-FDW

WILLIAM KIMBLE, JR., )
)
Plaintiff, )
)
vs. ) ORDER
)
JULIE JENKINS, et al., )
)
Defendants. )
__________________________________________)

THIS MATTER is before the Court on initial review of the Complaint, (Doc. No. 1).
Plaintiff is proceeding in forma pauperis. (Doc. No. 7).
I. BACKGROUND
Pro se Plaintiff filed this civil rights suit pursuant to 42 U.S.C. § 1983 while incarcerated
at the Marion Correctional Institution. (Doc. No. 1). He names as Defendants the following Marion
C.I. employees: Correctional Program III Julie Jenkins, Correctional Program II G. Swink, and
Assistant Superintendent of Programs David Cothron.
Construing the Complaint liberally and accepting it as true, Plaintiff was told by a dentist
in October and December 2018 that he needs to floss on a regular basis. Defendants deprived him
of “decent” conditions of confinement by refusing to allow him to purchase dental floss since he
arrived at Marion C.I. on March 2, 2018. (Doc. No. 1 at 4). Plaintiff is not provided adequate floss
by prison officials and he has not been given any legitimate notice or reason for the refusal. As a
result, he is unable to floss after each meal and can only floss once each evening. Defendants
Jenkins and Swink are not allowing Plaintiff to purchase floss from the canteen because other
inmates may use floss to make fishing lines to pass items from cell to cell and because floss
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containers are not see-through. As a result, inmates are only given seven to nine inches of floss at
a time which is insufficient. Officers hand out floss without washing their hands which is
unsanitary and places Plaintiff at risk of being exposed to harmful bacteria, the flu, and the
common cold and could result in blood poisoning.
The dental floss policy is discriminatory and deprives Plaintiff of equal protection of the

law. Jenkins and Swink treat some inmates differently than others without a legitimate reason.
Plaintiff needs to have floss in his possession at all times to prevent gum swelling and bleeding.
Plaintiff has had toothaches and headaches and bleeding gums could place Plaintiff at a higher risk
of developing heart disease later in life. At the time Plaintiff filed the Complaint there had not been
any dental floss on the unit for several weeks.
Plaintiff requests compensatory and punitive damages.
II. STANDARD OF REVIEW
Because Plaintiff is a prisoner proceeding in forma pauperis, the Court must review the
Complaint to determine whether it is subject to dismissal on the grounds that it is “(i) frivolous or

malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). In its frivolity
review, a court must determine whether the Complaint raises an indisputably meritless legal theory
or is founded upon clearly baseless factual contentions, such as fantastic or delusional scenarios.
Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). A complaint should not be dismissed for failure
to state a claim “unless ‘after accepting all well-pleaded allegations in the plaintiff’s complaint as
true and drawing all reasonable factual inferences from those facts in the plaintiff’s favor, it
appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him
to relief.’” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (quoting Edwards v. City of
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Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)).
A pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520
(1972); see also Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (“Liberal construction of the
pleadings is particularly appropriate where … there is a pro se complaint raising civil rights
issues.”). However, the liberal construction requirement will not permit a district court to ignore

a clear failure to allege facts in his complaint which set forth a claim that is cognizable under
federal law. Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). A pro se complaint must
still contain sufficient facts “to raise a right to relief above the speculative level” and “state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007);
see Ashcroft v. Iqbal, 556 U.S. 662 (2009) (the Twombly plausibility standard applies to all federal
civil complaints including those filed under § 1983). This “plausibility standard requires a plaintiff
to demonstrate more than a sheer possibility that a defendant has acted unlawfully.” Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal quotation marks omitted). He must
articulate facts that, when accepted as true, demonstrate he has stated a claim entitling him to relief.

Id.
III. DISCUSSION
(1) Conditions of Confinement
The Eighth Amendment prohibits punishments that “involve the unnecessary and wanton
infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 103 (1976) (quoting Gregg v. Georgia, 428
U.S. 153, 173 (1976)). “It not only outlaws excessive sentences but also protects inmates from
inhumane treatment and conditions while imprisoned.” Williams v. Benjamin, 77 F.3d 756, 761
(4th Cir. 1996). The Constitution “does not mandate comfortable prisons, … but neither does it
permit inhumane ones.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v.
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Chapman, 452 U.S. 337, 349 (1981)). Thus, prison official must provide sentenced prisoners with
adequate food, clothing, shelter, and medical care, and “take reasonable measures to guarantee
the[ir] safety….” Hudson v. Palmer, 468 U.S. 517, 526-27 (1984); see Farmer, 511 U.S. at 832-
34. Inmates’ claims that prison officials disregarded specific known risks to their health or safety
are analyzed under the deliberate indifference standard of the Eighth Amendment. See Pressly v.

Hutto, 816 F.2d 977, 979 (4th Cir.1987). To establish the imposition of cruel and unusual
punishment, a prisoner must prove two elements: (1) “the deprivation of [a] basic human need was
objectively sufficiently serious,” and (2) “subjectively the officials act[ed] with a sufficiently
culpable state of mind.” Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995) (quoting Strickler v.
Waters, 989 F.2d 1375, 1379 (4th Cir. 1993) (quotation omitted).
To establish a violation of the Eighth Amendment in the context of a challenge to
conditions of confinement, an inmate must allege (1) a “sufficiently serious” deprivation under an
objective standard and (2) that prison officials acted with “deliberate indifference” to the inmate’s
health and safety under a subjective standard. Wilson v. Seiter, 501 U.S. 294, 297-99 (1991). A

sufficiently serious deprivation occurs when “a prison official’s act or omission ... result[s] in the
denial of the minimal civilized measure of life’s necessities.” Id. at 298 (citing Rhodes, 452 U.S.
at 347).
The conditions that Plaintiff has described are not sufficiently serious to amount to a
constitutional deprivation, he has failed to adequately allege that prison officials imposed these
conditions with deliberate indifference to his health and safety, and he has inadequately alleged
that the conditions have resulted in physical harm. The lack of constant access to unlimited
amounts of dental floss, the complete absence of floss for a period of a few week, and the allegedly
unsanitary handling of floss by prison employees might be unpleasant but do not satisfy the very
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high standards for cruel and unusual punishment under the Eighth Amendment. See generally
De’Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003); see, e.g., Richmond v. Stigile, 22
F.Supp.2d 476 (D. Md. 1998) (prisoner who alleged he was deprived of basic hygiene items
because his indigence did not rise to the level of an Eighth Amendment violation because the
deprivation was not sufficiently lengthy or serious, prison officials did not act with deliberate

indifference, and the conditions did not result in physical harm). Therefore, Plaintiff’s Eighth
Amendment claims are insufficient to proceed.
(2) Due Process
The Fourteenth Amendment’s Due Process Clause provides that no person shall be
deprived of “life, liberty, or property, without due process of law.” U.S. Const. Amend XIV. To
state a due process claim, a plaintiff must demonstrate that he protected a protected liberty or
property interest and that he was denied that interest without being afforded due process of law.
See Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460–61 (1989). The first inquiry in any
due process challenge is whether the plaintiff has been deprived of a protected interest in property

or liberty that was accomplished by state action. See Tigrett v. The Rector and Visitors of the Univ.
of Va., 290 F.3d 620, 628 (4th Cir. 2002); Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167,
172 (4th Cir. 1988). “Unless there has been a ‘deprivation’ by ‘state action,’ the question of what
process is required and whether any provided could be adequate in the particular factual context is
irrelevant, for the constitutional right to ‘due process’ is simply not implicated.” Stone, 855 F.2d
at 172.
A plaintiff does not have a federally protected liberty interest in any particular housing or
classification unless it exceeds the scope of his original sentence and imposes an atypical and
significant hardship in relation to the ordinary incidents of prison life. See Sandin v. Conner, 515
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U.S. 472 (1995). “[C]hanges in a prisoner’s location, variations of daily routine, changes in
conditions of confinement (including administrative segregation) and the denial of privileges …
are necessarily functions of prison management that must be left to the broad discretion of prison
administrators to enable them to manage prisons safely and efficiently.” Gaston v. Taylor, 946
F.2d 340, 343 (4th Cir. 1991) (en banc)). As a general matter, a prisoner has no constitutional right

to access a prison commissary. See Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir. 2002);
Madison v. Parker, 104 F.3d 765 (5th Cir. 1997); Vick v. Core Civic, 329 F.Supp.3d 426, 451
(M.D. Tenn. 2018); Montalvo v. Lamy, 139 F.Supp.3d 597 (W.D.N.Y. 2015); Mitchell v. City of
New York, 2011 WL 1899718 (S.D.N.Y. 2011).
Plaintiff alleges that, except for a period of a few weeks, the prison provided each inmate
with a length of dental floss every day. Plaintiff’s claim that he was unable to purchase additional
dental floss due to institutional concerns about safety and security fails to allege an atypical or
significant hardship upon which a due process claim could be based. See Vick, 329 F.Supp.3d at
451 (plaintiff’s conditions of confinement claim premised on the lack of access to the prison

commissary failed to state an Eighth Amendment claim upon which relief could be granted).
Plaintiff’s due process claim with therefore be dismissed.
(3) Equal Protection
The Fourteenth Amendment’s Equal Protection Clause provides that “[n]o State shall ...
deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend.
XIV, § 1. The equal protection requirement “does not take from the States all power of
classification,” Personnel Adm’r v. Feeney, 442 U.S. 256, 271 (1979), but “keeps governmental
decisionmakers from treating differently persons who are in all relevant respects alike,” Nordlinger
v. Hahn, 505 U.S. 1, 10 (1992). To succeed on an equal protection claim, a § 1983 plaintiff “must
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first demonstrate that he has been treated differently from others with whom he is similarly situated
and that the unequal treatment was the result of intentional or purposeful discrimination.” Morrison
v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). If he makes this showing, “the court proceeds to
determine whether the disparity in treatment can be justified under the requisite level of scrutiny.”
Id. Ordinarily, when a state regulation or policy is challenged under the Equal Protection Clause,

unless it involves a fundamental right or a suspect class, it is presumed to be valid and will be
sustained “if there is a rational relationship between the disparity of treatment and some legitimate
governmental purpose.” Heller v. Doe, 509 U.S. 312, 319–320 (1993). The Fourth Circuit does
not recognize prisoners as “a suspect class.” Roller v. Gunn, 107 F.3d 227, 233 (4th Cir. 1997).
When equal protection challenges arise in a prison context, courts must adjust the level of scrutiny
to ensure that prison officials are afforded the necessary discretion to operate their facilities in a
safe and secure manner. See Morrison, 239 F.3d at 654–55. In a prison context, therefore, the court
must determine whether the disparate treatment is “reasonably related to [any] legitimate
penological interests.” Shaw v. Murphy, 532 U.S. 223, 225 (2001). This deferential standard

applies “even when the alleged infringed constitutional right would otherwise warrant higher
scrutiny;” however, this more deferential review does not ignore the concerns that justify
application of a heightened standard outside of the prison context. Morrison, 239 F.3d at 655-56.
Plaintiff alleges that the prison’s dental floss policy is discriminatory and deprives Plaintiff
of equal protection of the law, and that Defendants Jenkins and Swink treat some inmates
differently than others without a legitimate reason. Plaintiff fails to allege to which protected group
he belongs, that he was purposefully discriminated against on the basis of that suspect class, or
that other similarly situated prisoners are treated differently. Even if such a classification and
different treatment existed, Plaintiff admits that the prison’s policy is due to safety and security
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concerns about inmates “fishing” with dental floss. These allegations demonstrate that the dental
floss policy is reasonably related to a legitimate penological interest. Plaintiff’s claims alleging
discrimination and violation of equal protection are therefore insufficient to proceed.
(4) Relief
As relief, Plaintiff seeks compensatory and punitive damages. However, Plaintiff cannot

recover compensatory damages because he has failed to adequately allege the existence of a
physical injury. See 42 U.S.C. § 1997e(e). See Perkins v. Dewberry, 139 Fed. Appx. 599 (4th Cir.
2005) (unpublished) (stating that “de minimis physical injuries cannot support a claim for mental
or emotional injury.”); Mayfield v. Fleming, 32 Fed. Appx. 116 (4th Cir. 2002) (unpublished)
(stating that “the district court correctly concluded that [plaintiff’s] claim for money damages is
barred because he can show no physical injury.”). Punitive damages are unavailable because
Plaintiff has failed to adequately allege that defendant’s conduct was “motivated by evil motive or
intent, or when it involves reckless or callous indifference to the federally protected rights of
others” Smith v. Wade, 461 U.S. 30, 51 (1983). Further, if Plaintiff were to seek injunctive relief,

such a claim would be moot because Plaintiff no longer resides at Marion C.I.; his address of
record is at the Bertie Correctional Institution. See Williams v. Griffin, 952 F.2d 820 (4th Cir.
1991); Taylor v. Rogers, 781 F.2d 1047, 1048 n.1 (4th Cir. 1986).
V. CONCLUSION
For the foregoing reasons, the Complaint is dismissed as frivolous and for failure to state
a claim upon which relief can be granted and this case will be closed.
IT IS, THEREFORE, ORDERED that:
1. The Complaint, (Doc. No. 1), is DISMISSED as frivolous and for failure to state a
claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii).
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2. The Clerk of Court is directed to terminate this action.

Signed: June 11, 2019

Frank D. Whitney ¥
Chief United States District Judge ~“#**

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254669. Public record. Not legal advice.