The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
GARY OLIVER, ) Case No.: 1:19 CV 1388
)
Plaintiff, )
) JUDGE SOLOMON OLIVER, JR.
v. )
)
ARMOND BUDISH, et al., ) MEMORANDUM OF OPINION
) AND ORDER
Defendants. )
Pro se Plaintiff Gary Oliver filed this action against Cuyahoga County Executive Armond
Budish, Cuyahoga County Jail Warden Eric Ivey, Cuyahoga County Jail Corrections Director
Kenneth Mills, and former Cuyahoga County Sheriff Clifford Pinkey. In the Complaint, Plaintiff
alleges he was denied pain medication and was subjected to intolerable conditions in the Cuyahoga
County Jail. He seeks monetary and injunctive relief.
Background
Plaintiff alleges he is being held in the Cuyahoga County Jail. He states he has a number of
medical conditions, including diabetes, high cholesterol, lower back pain, and leg pain from a
fracture. He contends he takes pain medication and wears a leg and back brace. He alleges he has
been denied pain medication and the braces at the jail. He also alleges he should be housed in the
medical unit and not on the tenth floor where he is currently housed.
Plaintiff further contends the conditions in the jail are intolerable. He states that there is
asbestos and black mold in the air. He claims detainees are locked in their cells for “red zones”
during which time they cannot shower or use the telephones to call family or attorneys. He contends
red zones may last up to 26 hours at a time. He states that the mattresses are thin and rest on hard
concrete or metal slabs. He indicates that this aggravates his back and leg pain.
Standard of Review
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365
(1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the Court is required to dismiss
an in forma pauperis action under 28 U.S.C. §1915(e) if it fails to state a claim upon which relief
can be granted, or if it lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319
(1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v. City of Strongsville, 99 F.3d
194, 197 (6th Cir. 1996). An action has no arguable basis in law when a Defendant is immune from
suit or when a Plaintiff claims a violation of a legal interest which clearly does not exist. Neitzke,
490 U.S. at 327. An action has no arguable factual basis when the allegations are delusional or rise
to the level of the irrational or “wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 32 (1992);
Lawler, 898 F.2d at 1199.
When determining whether the Plaintiff has stated a claim upon which relief can be granted,
the Court must construe the Complaint in the light most favorable to the Plaintiff, accept all factual
allegations as true, and determine whether the Complaint contains “enough fact to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The
Plaintiff’s obligation to provide the grounds for relief “requires more than labels and conclusions,
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and a formulaic recitation of the elements of a cause of action will not do.” Id. Although a
Complaint need not contain detailed factual allegations, its “factual allegations must be enough to
raise a right to relief above the speculative level on the assumption that all the allegations in the
Complaint are true.” Id. The Court is “not bound to accept as true a legal conclusion couched as
a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). The Supreme Court in Ashcroft
v. Iqbal, 556 U.S. 662, 677-678 (2009), further explains the “plausibility” requirement, stating that
“ a claim has facial plausibility when the Plaintiff pleads factual content that allows the Court to
draw the reasonable inference that the Defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. Furthermore, “the plausibility standard is not akin to a ‘probability requirement,’ but
it asks for more than a sheer possibility that a Defendant acted unlawfully.” Id. This determination
is a “context-specific task that requires the reviewing Court to draw on its judicial experience and
common sense.” Id.
Analysis
The Eighth Amendment imposes a constitutional limitation on the power of the states to
punish those convicted of crimes. Punishment may not be “barbarous” nor may it contravene
society’s “evolving standards of decency.” Rhodes v. Chapman, 452 U.S. 337, 346 (1981). The
Eighth Amendment, therefore, prohibits conduct by prison officials that involves the “unnecessary
and wanton infliction of pain.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987) (per curiam)
(quoting Rhodes, 452 U.S. at 346).
The Supreme Court in Wilson v. Seiter, 501 U.S. 294, 298 (1991), set forth a framework for
courts to use when deciding whether certain conditions of confinement constitute cruel and unusual
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punishment prohibited by the Eighth Amendment. Plaintiff must first plead facts which, if true,
establish that a sufficiently serious deprivation has occurred. Id. Seriousness is measured in
response to “contemporary standards of decency.” Hudson v. McMillian, 503 U.S. 1, 8 (1992).
Routine discomforts of prison life do not suffice. Id. Only deliberate indifference to serious medical
needs or extreme deprivations regarding the conditions of confinement will implicate the protections
of the Eighth Amendment. Id. at 9. Plaintiff must also establish a subjective element showing the
prison officials acted with a sufficiently culpable state of mind. Id. Deliberate indifference is
characterized by obduracy or wantonness, not inadvertence or good faith error. Whitley v. Albers,
475 U.S. 312, 319 (1986). Liability cannot be predicated solely on negligence. Id. A prison official
violates the Eighth Amendment only when both the objective and subjective requirements are met.
Farmer v. Brennan, 511 U.S. 825, 834 (1994)
In this case, Plaintiff fails to establish the subjective element of his claims. Deliberate
indifference “entails something more than mere negligence.” Farmer, 511 U.S. at 835. An official
acts with deliberate indifference when “he acts with criminal recklessness,” a state of mind that
requires that the official act with conscious disregard of a substantial risk of serious harm. Id. at
837. This standard is met if “the official knows of and disregards an excessive risk to inmate health
or safety; the official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.” Id. Plaintiff does not
allege facts reasonably suggesting that the County Executive, the Sheriff, the Warden or the
Corrections Director were personally aware of his situation, that they drew the inference that his
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health was at risk, and disregarded that risk in their actions. He cannot state a claim for relief
against them under the Eighth or Fourteenth Amendments.
Conclusion
Accordingly, this action is dismissed pursuant to 28 U.S.C. §1915(e). The Court certifies,
pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good
faith.1
IT IS SO ORDERED.
/S/ SOLOMON OLIVER, JR.
SOLOMON OLIVER, JR.
UNITED STATES DISTRICT JUDGE
October 31, 2019
1 28 U.S.C. § 1915(a)(3) provides:
An appeal may not be taken in forma pauperis if the trial court certifies that it is not
taken in good faith.
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