Chapple, Jr. v. Unknown Officers

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JEFFREY LYNN CHAPPLE, Jr., :

:

Plaintiff, :

: Case No. 2:21-cv-05086

v. :

: Chief Judge Algenon L. Marbley

FRANKLIN COUNTY SHERIFF’S : Magistrate Judge Elizabeth P. Deavers

OFFICERS FCCC 1 & 2, et al., :

:

Defendants. :

OPINION & ORDER

This matter comes before the Court on the Magistrate Judge’s March 23, 2022, Report and

Recommendation (ECF No. 24). Plaintiff timely objected to the Report and Recommendation

(ECF No. 26). For the following reasons, Plaintiff’s Objections are SUSTAINED IN PART and

OVERRULED IN PART, and the Report and Recommendation is ADOPTED AS MODIFIED.

I. BACKGROUND

Plaintiff Jeffrey Lynn Chapple is currently detained at the Franklin County Corrections

Centers (collectively, “FCCC”),1 where he is awaiting trial before the Court of Common Pleas for

1 There are two correctional facilities in Franklin County: Franklin County Corrections Center I (“FCCC I”),

which is located at 370 S. Front St., Columbus, OH 43215, and Franklin County Corrections Center II (“FCCC II”),

which is located at 2460 Jackson Pike, Columbus, OH 43223. See Divisions: Corrections, FRANKLIN CNTY. SHERIFF’S

OFFICE, https://sheriff.franklincountyohio.gov/About/Divisons/Corrections. Chapple refers to Franklin County

Corrections Center 1 & 2 in his pleadings, presumably referring to FCCC I and FCCC II, respectively. He was in

custody at FCCC I when he filed the Complaint in this case. (ECF No. 1-1 at 12). The Complaint refers to incidents

at both facilities.

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Franklin County.2 (ECF No. 23 at 1–3).3 In his Complaint, Chapple names over twenty defendants

— some known and some unknown — who all appear to be officers or officials of the Franklin

County Sheriff’s Office and/or the FCCC. (Id. at 1, 4, 7). The Complaint lists thirty-three (33)

specific allegations of wrongdoing by Defendants over a fourteen-month period, written as a

narrative of apparently unconnected events. (See id. at 5, 8–16). These allegations range from the

inconveniences of custodial life to accusations of excessive force. Ultimately, Chapple requests

this Court investigate the facts underlying his Complaint and take action to address the pain and

suffering he has experienced. (Id. at 6).

Chapple, proceeding without the assistance of counsel, filed this action on October 10,

2021 (ECF No. 1). The Magistrate Judge granted him leave to proceed in forma pauperis (ECF

No. 22). Because this case involves a plaintiff proceeding in forma pauperis, this Court must

conduct an initial screening of the Complaint. 28 U.S.C. §§ 1915(e)(2), 1915A(b). Magistrate

Judge Deavers issued her Report and Recommendation (ECF No. 24) pursuant to the screening

requirement on March 23, 2022. Chapple now objects to the recommendations (ECF No. 26).

II. STANDARD OF REVIEW

If a party objects within 14 days to the magistrate judge’s proposed findings and

recommendations, the district court “shall make a de novo determination of those portions of the

report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C.

§ 636(b)(1); see also Fed. R. Civ. P. 72(b). The district court may “accept, reject or modify the

2 The Franklin County Clerk of Courts’ Case Information website reflects that Chapple is the defendant in

the case docketed as No. 20 CR 003865. See Case Information Online, FRANKLIN CNTY. CLERK OF CTS.,

https://fcdcfcjs.co.franklin.oh.us/CaseInformationOnline/ (search case field for “20 CR 003865”).

3 Chapple’s Complaint is attached as an exhibit to his Motion for Leave to Proceed In Forma Pauperis (ECF

No. 1-1) and docketed independently (ECF No. 23). This Court refers to ECF No. 23 when citing to the Complaint

for consistency. The docket items are identical.

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recommended disposition; receive further evidence; or return the matter to the magistrate with

instructions.” Fed. R. Civ. P. 72(b). On the other hand, if a party fails to object timely to the

magistrate’s recommendation, that party waives the right to de novo review by the district court

of the report and recommendation. See Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not

appear that Congress intended to require district court review of a magistrate’s factual or legal

conclusions, under a de novo or any other standard, when neither party objects to those

findings.”). Waiver does not, however, “preclude further review by the district judge, sua sponte

or at the request of a party, under a de novo or any other standard.” Id. at 154.

A party’s objection should be specific, identify the issues of contention, and “be clear

enough to enable the district court to discern those issues that are dispositive and contentious.”

Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). The onus is on the objecting party “to pinpoint

those portions of the magistrate’s report that the district court must specially consider.” Mira v.

Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (quotation marks and citation omitted). When a

pleader fails to raise specific issues, the district court will consider this to be “a general objection

to the entirety of the magistrate report[, which] has the same effects as would a failure to object.”

Howard v. Sec’y of Health & Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991).

In actions brought by “a prisoner seek[ing] redress from a governmental entity or officer

or employee of a governmental entity,” the Court must dismiss any complaint, or portion thereof,

that is “frivolous, malicious, fails to state a claim . . . [or] seeks monetary relief from a defendant

who is immune to such relief” in its initial screening. 28 U.S.C. § 1915A(a)–(b). This Court

assesses whether a plaintiff has stated a claim under § 1915A under the same framework as the

Rule 12(b)(6) dismissal standard outlined in Ashcroft v. Iqbal, 556 U.S 662 (2009), and Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) — that is, to survive the initial screening, a

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prisoner’s complaint “must contain sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Hill v. Lappin, 630 F.3d 468, 570–71 (6th Cir. 2010) (citing

Iqbal, 556 U.S. at 678). A claim is considered plausible on its face “when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009)

(quoting Iqbal, 556 U.S. at 678). And though the court “need not accept as true a legal conclusion

couched as a factual allegation,” id. (quoting Twombly, 550 U.S. at 555) (internal quotations

omitted), the court must “construe the complaint in the light most favorable to the plaintiff, accept

its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” In re Travel

Agent Comm’n Antitrust Litig., 583 F.3d 896, 903 (6th Cir. 2009) (quoting Jones v. City of

Cincinnati, 521 F.3d 555, 559 (6th Cir. 2008)).

Finally, allegations in a pro se complaint are subject to “‘less stringent standards than

formal pleadings drafted by lawyers,’ and therefore should be liberally construed,” Williams v.

Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir.

2004)), but even “the lenient treatment generally accorded to pro se litigants has limits.” Pilgrim

v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (internal citations omitted).

III. LAW & ANALYSIS

The Magistrate Judge interpreted Chapple’s broad plea for relief as an attempt to raise

claims of constitutional deprivation under 42 U.S.C. § 1983 and grouped the 33 incidents

mentioned by Chapple into the following eight (8) categories of claims: (1) official capacity

claims; (2) conditions of confinement claims; (3) personal property claims; (4) disciplinary claims;

(5) grievance procedure claims; (6) failure to protect claims; (7) religious rights claims; and (8)

excessive force claims. (ECF No. 24 at 3–4). The Magistrate’s Report and Recommendations

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suggested that this Court dismiss all claims against Defendants in their official capacities. (Id. at

6). The magistrate also recommended that this Court: (1) allow Chapple to proceed on his

excessive force claims against Defendants Curren, John Jones, Sgt. Neal, Robinson, Bateman, and

Sgt. Neely in their individual capacities; (2) provide Chapple with the opportunity to amend his

claim regarding the food tray with semen on his fries (ECF No. 23 ¶ 11) and his religious rights

claims (ECF No. 23 ¶ 5); and (3) dismiss Chapple’s remaining claims. (Id. at 32).

Chapple’s Objections (ECF No. 26) consists of three parts. First, Chapple includes an

introductory cover page, asserting his opposition to the report and explaining what he has included

in the objection. (ECF No. 26 at 1). Much of the introduction is, in truth, a general objection to

the Report and Recommendation; Chapple asserts that “[n]one of [his] claims should be dismissed

because they’re all facts and blood” and that he “object[s] to all the claims thats [sic] been

dismissed.” (Id.). An objection that simply rejects the Magistrate’s Report whole-cloth and does

not identify any specific issues “has the same effects as would a failure to object” and thus does

not necessitate de novo review by this Court. Howard, 932 F.2d at 509. By contrast, the statements

in the introduction about trash-contaminated beverages given to inmates at FCCC and about the

identity of officers who tampered with Chapple’s food trays do focus on specific facts and,

therefore, warrant further analysis. See infra Parts III.C.2–3.

Second, Chapple includes two petitions that he circulated to other inmates. (See ECF No.

26 at 2–4). The first asks whether FCCC officers should be required to wear bodycams; it is signed

by thirteen individuals, who broadly support the use of bodycams as a means of keeping officers

and deputies accountable and honest. (Id. at 2–3). The second petition simply asks other inmates

to describe problems that they have faced from FCCC officers; only three (3) individuals

responded to this petition. (Id. at 4–5). While these petitions effectively draw attention to the

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troubling conditions at FCCC, they do not identify specific issues of contention with the

Magistrate’s Report. See Currie, 50 F.3d at 380 (noting that objections should “be clear enough

to enable the district court to discern those issues that are dispositive and contentions”). Nor do

the petitions sufficiently demonstrate “the existence of a custom of tolerance of acquiescence of

federal rights of violations” such that Chapple can sustain an allegation of unconstitutional

Franklin County policy, Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013) (citing Thomas v.

City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005)), especially since only one of the thirteen

signatories of the first petition lists any alleged officer misconduct.

Finally, Chapple provides ten pages of objections, with each page addressed to a particular

Defendant and focused on a specific incident from the Complaint. (Id. at 5–14). In keeping with

the liberal construction afforded pro se litigants, see Williams, 631 F.3d at 383, this Court

organizes Chapple’s ten objections to align with the Magistrate Judge’s categorization of

Chapple’s claims. Thus, this Court reads Chapple’s Objections (ECF No. 26) to focus on his

personal property, disciplinary, conditions of confinement, verbal harassment, and failure-to-

protect claims. Each claim and its corresponding objections are addressed in turn.4

A. Personal Property Claims

The Magistrate’s Report and Recommendation found that, because Chapple failed to

“allege[] any facts which indicate that the state post-deprivation remedies are inadequate or

unavailable to redress the wrong,” his personal property claims must be dismissed. (ECF No. 24

at 19 (quoting Thompson v. Esham, 2016 WL 692542, at *1 (S.D. Ohio Feb. 22, 2016) (citing

4 The following analysis discusses all but one of Chapple’s ten objections. His first objection (ECF No. 26

at 5) simply expresses his general frustration with the conditions of his confinement and objects to the Magistrate’s

recommendation that his claim about semen on his fries be dismissed. (Id.). As the Magistrate did not, in fact, dismiss

that claim and as general objections are construed as a failure to object, this Court does not address Chapple’s first

objection further.

6

Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995)))). Chapple’s second and ninth objections

(ECF No. 26 at 6, 13) both contest the magistrate’s conclusion. Neither, however, directly

addresses the claims that the Magistrate Judge considered, disputes any of the facts cited in the

Report and Recommendation, or suggests any missteps in the legal analysis. (See ECF No. 26 at

6, 13). Instead, the objections simply re-state the factual allegations that Chapple provides in his

Complaint. (Compare, e.g., ECF No. 26 at 13, with ECF No. 23 ¶ 7). Because these objections

merely dispute the correctness of the Magistrate Judge’s recommendation without specifying any

issues of contention, this Court construes Chapple’s second and ninth objections as general

objections. See Miller, 50 F.3d at 380. Accordingly, Chapple’s second and ninth objections are

OVERRULED. Chapple’s personal property claims are DISMISSED.

B. Disciplinary Claims

With respect to Chapple’s disciplinary claims, the Magistrate Judge found that “the

discipline [Chapple] describes is not excessive or disproportional to his alleged behavior and does

not rise to the level of a constitutional violation,” especially since “Chapple acknowledges in the

Complaint several behaviors that would reasonably prompt disciplinary measures.” (ECF No. 24

at 21 (citing ECF No. 23, Complaint, ¶¶ 10, 14, 20)). Accordingly, the Report and

Recommendation concluded that the disciplinary claims should be dismissed. (Id.).

Chapple’s second and tenth objections (ECF No. 26 at 6, 14) address that recommendation.

The objections, however, do not state with any specificity why this Court should review the

Magistrate Judge’s recommendation to dismiss, or pinpoint any legal arguments that are off the

mark, see Mira, 806 F.2d at 637, but only mention once more his allegations of being moved to a

different cell and having his security level increased. (ECF No. 23 at 14). This Court therefore at

most construes Chapple’s second and tenth objections as general objections. Accordingly,

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Chapple’s second and tenth objections are OVERRULED, and his disciplinary claims are

DISMISSED.

C. Conditions of Confinement Claims

By contrast, Chapple’s objections to the Magistrate Judge’s recommendations with respect

to his conditions of confinement claims do identify specific facts. (See ECF No. 26 at 1, 7–8, 10–

11). Chapple notes, for example, that he was given juice from a bag that had been in a trash can

and that the water provided to inmates is full of lead. (Id. at 1, 8, 11). He also contends that he

was placed overnight in a cell that had blood and feces “all over the floors, walls, sink & toilet.”

(Id. at 7). This Court understands Chapple’s mention of these facts as, in effect, objections to the

magistrate’s recommendation that this Court dismiss all but one of his conditions of confinement

claims. (See ECF No. 24 at 18).

Conditions of confinement claims are typically scrutinized under the Eighth Amendment,

which “imposes duties on [prison] officials, who must provide humane conditions of

confinement[,] . . . must ensure that inmates receive adequate food, clothing, shelter, and medical

care, and must ‘take reasonable measures to guarantee the safety of the inmates.’” Farmer v.

Brennan, 511 U.S. 825, 833 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526–27 (1984));

see also Helling v. McKinney, 509 U.S. 25, 31 (1993). Of course, Chapple is a pretrial detainee,

not a prisoner whose guilt has already been adjudicated, and so he is protected from cruel and

unusual punishments by the Fourteenth Amendment’s Due Process Clause, rather than by the

Eighth Amendment. See Miller v. Calhoun Cnty., 408 F.3d 803, 812 (6th Cir. 2005)). Although

the Fourteenth Amendment’s Due Process Clause provides protections “at least as great as” the

Cruel and Unusual Punishments Clause, County of Sacramento v. Lewis, 523 U.S. 833, 849–50

(1998), courts have typically applied the same Eighth Amendment conditions of confinement

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analysis to claims by pretrial detainees. See, e.g., Spencer v. Bouchard, 449 F.3d 721, 728 (6th

Cir. 2006), abrogated on other grounds by Jones v. Bock, 549 U.S. 199 (2007); Richmond v. Huq,

885 F.3d 928, 937 (6th Cir. 2018) (“This Court has historically analyzed Fourteenth Amendment

pretrial detainee claims and Eighth Amendment prisoner claims ‘under the same rubric.’” (quoting

Villegas v. Metro. Gov’t of Nashville, 709 F.3d 563, 568 (6th Cir. 2013))).

Traditionally, such claims have had an objective and a subjective component, wherein the

prisoner or pretrial detainee must show both that “he is incarcerated under conditions posing a

substantial risk of serious harm,” see Farmer, 511 U.S. at 834, and that the defendants “(1) were

‘aware of facts from which the inference could be drawn that a substantial risk of serious harm

exists’; (2) actually drew the inference; and (3) consciously disregarded the risk.” Westmoreland

v. Butler Cnty., 29 F.4th 721, 726–27 (6th Cir. 2022) (quoting Farmer, 511 U.S. at 834). But, in

the aftermath of the Supreme Court’s decision in Kingsley v. Hendrickson, 576 U.S. 389 (2015),

the Sixth Circuit held that the traditional subjective prong was no longer appropriate in analyzing

claims by pretrial detainees. See Brawner v. Scott Cnty., 14 F.4th 585, 596 (6th Cir. 2021), reh’g

en banc denied, 18 F.4th 551 (6th Cir. 2021). Instead, a pretrial detainee seeking to establish

deliberate indifference need not show that “the officers were subjectively aware their use of force

was unreasonable,” but must only prove that “a defendant . . . acted deliberately (not accidentally),

but also recklessly ‘in the face of an unjustifiably high risk of harm that is either known or so

obvious that it should be known.’” Id. at 596 (quoting Farmer, 511 U.S. at 836)). A pretrial

detainee, in other words, must demonstrate “something akin to reckless disregard,” which is “more

than negligence but less than subjective intent.” Id. (quoting Castro v. County of Los Angeles, 833

F.3d 1060, 1071 (9th Cir. 2016) (en banc)).

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Of course, a pretrial detainee who seeks to allege a conditions of confinement claim must

still demonstrate a sufficiently serious deprivation: that he was denied “the minimal civilized

measure of life’s necessities.” Farmer, 511 U.S. at 840 (quoting Rhodes v. Chapman, 452 U.S.

337, 347 (1981)). That prong of the Farmer test has not changed. Whether a deprivation meets

the sufficiently serious standard depends on both the severity of the deprivation, see Hudson v.

McMillian, 503 U.S. 1, 9 (1992), and the duration. See Lamb v. Howe, 677 F. App’x 204, 209 (6th

Cir. 2017). A more modest deprivation, for example, can still constitute an Eighth Amendment

violation “if such deprivations are lengthy or ongoing.” Spencer, 449 F.3d at 729 (quoting Johnson

v. Lewis, 217 F.3d 726, 732 (9th Cir. 2000)).

The Magistrate’s Report and Recommendations organized Chapple’s conditions-of-

confinement claims into three categories: (1) sanitation and hygiene issues; (2) food tray issues;

(3) water issues. This Court addresses each category in turn, in light of Chapple’s Objections and

the foregoing legal framework:

1. Sanitation and Hygiene Issues

Chapple’s third and eighth objections (ECF No. 26 at 7, 12) identify specific facts that

contest the Magistrate Judge’s conclusion that all claims arising out of his sanitation and hygiene

issues should be dismissed.5 The Magistrate’s Report found that “Chapple’s bare assertion that

the cell he was in for one day was ‘nasty’ is insufficient to state a claim . . . [or] a sufficiently

5 The specific facts identified by Chapple are new facts not contained in his Complaint. New facts are

typically not considered by the district court when evaluating objections to a magistrate’s report and recommendation,

see Norton v. Barker, 2021 WL 4128865, at *2 (E.D. Tenn. Sept. 9, 2021) (“Therefore, the Court declines to consider

new facts raised in Plaintiff’s Objections.”), but “when the pleadings are filed by pro se plaintiffs, the court may

consider additional, supporting documents which either serve to elaborate on a complaint or amend the initial filing.”

Tolliver v. Noble, 752 F. App’x 254, 266 (6th Cir. 2018) (citations omitted). In consideration of Chapple’s pro se

status, the Court will consider Chapple’s additional factual allegations in his Objections (ECF No. 26) when

considering whether his claims should be dismissed pursuant to the initial screening required by 28 U.S.C. § 1915A(b).

10

serious deprivation of Chapple’s need for sanitation.” (ECF No. 24 at 10 (internal citations

omitted)). The Report and Recommendation pointed out that the Complaint only states Chapple’s

need for cleaning supplies but “does not describe cell conditions [at the prison] for which he needed

[those] materials.” (Id. at 11 (quoting ECF No. 1 ¶ 16)). By contrast, Chapple’s third and eighth

objections do more than just allege bare assertions of “nastiness”; instead, Chapple states with

specificity that, on April 30, 2021,6 he was moved to 3 West Left Cell 3, which “had blood & do-

do [sic] & other things all over the floors, walls, sink & toilet.” (ECF No. 26 at 7). He further

alleges that, in January 2021, he was placed in a room with “do-do & food dried up on the walls,

floor & toilet & sink was nasty.” (Id. at 12).

Although a short, temporary exposure to feces does not meet the objective component of

the Eighth Amendment conditions of confinement test, see Lamb, 677 F. App’x 209–10 (finding

that an inmate’s four-hour exposure to flooding water from the toilet was insufficient to state a

constitutional claim), Chapple here alleges at least an overnight stay in a cell covered in feces.

(See ECF Nos. 23 ¶ 16; 26 at 7). Longer-term exposure to fecal matter has been deemed sufficient

to state a claim for relief under the Eighth Amendment. See Taylor v. Larson, 505 F. App’x 475,

477 (6th Cir. 2012) (three day stay in cell covered with fecal matter). Exactly how many hours an

inmate must be exposed to fecal matter to establish a constitutional violation appears, at times, to

involve arbitrary line-drawing, compare DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001)

(finding 36 hour exposure to other inmates’ urine and feces in standing water qualified as a

6 The precise date of this event is unclear. In Chapple’s Objections, he states that this incident happened on

April 30, 2021, when he was moved from 3 West Left Cell 5 to Cell 3. (ECF No. 26 at 7). In the Complaint, on the

other hand, Chapple states that the same event (i.e., being moved from Cell 5 to Cell 3) happened on July 14, 2021.

(ECF No. 23 ¶ 16). This Court presumes that Chapple refers to the same event in both scenarios, in keeping with the

liberal construction afforded pro se litigants. This Court will continue to refer to this incident as happening on April

30, 2021, in this Order & Opinion for consistency.

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significant deprivation), with Smith v. Copeland, 87 F.3d 265, 269 (8th Cir. 1996) (dismissing a

plaintiff’s exposure to an overflowed toilet, and his own feces and urine, for four days as

insufficiently serious), especially in light of the fundamental reality that “placing a prisoner in a

cell covered with fecal matter . . . ‘falls below the standard of decency that inheres in the Eighth

Amendment’” and, therefore, in the Fourteenth Amendment as well. Taylor, 505 F. App’x at 477

(quoting Brown v. Plata, 563 U.S. 493, 545 (2011)). This Court finds that Chapple’s allegations

of exposure to feces and blood on the floor, walls, sink, and toilet during his overnight stay in 3

West Left Cell 3 on April 30, 2021, satisfies the first prong of the Farmer test.7 See Fruit v. Norris,

905 F.2d 1147, 1151 (8th Cir. 1990) (noting that “courts have been especially cautious about

condoning conditions that include an inmate’s proximity to human waste”); McBride v. Deer, 240

F.3d 1287, 1292 (10th Cir. 2001); Michaud v. Sheriff of Essex Cnty., 458 N.E.2d 702, 705–06

(Mass. 1983).

The second prong, as modified by Brawner, is also met. The risks of exposure to human

feces and blood are well-established and patently obvious. See Taylor, 505 F. App’x at 477;

McCord v. Maggio, 927 F.2d 844, 848 (5th Cir. 1991) (deeming it “unquestionably a health

hazard” to sleep on a mattress soaked with water contaminated with human waste); Fruit, 905 F.2d

at 1150–51 (noting that “‘common sense’ suggests that [prison officers] should have had

knowledge that unprotected contact with human waste could cause disease”); LaReau v.

MacDougall, 473 F.2d 974, 978 (2nd Cir. 1972) (“Causing a man to live, eat, and perhaps sleep in

close confines with his own human waste is too debasing and degrading to be permitted.”). Here,

7 Chapple’s eighth objection (ECF No. 26 at 12) describes an incident in January 2021 where he was placed

by Lieutenant Benson in a cell with “do-do and food dried up on the floor.” (ECF No. 26 at 12). This Court is unable

to find a corresponding incident in the Complaint, based on either the date or the situation described. Consequently,

this Court is unable to evaluate the length of time that Chapple was exposed to the conditions described.

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Sergeant Howard initially planned to leave Chapple in a cell for five days, where the deprivation

and danger was readily perceivable. (See ECF No. 23 ¶ 16). Chapple has provided enough

allegations to state a plausible claim that Sergeant Howard acted with reckless disregard in

exposing Chapple to a sufficiently serious deprivation. See Brawner, 14 F.4th at 596; see also

Taylor v. Riojas, 141 S. Ct. 52, 53 (2020).

Accordingly, Chapple’s objection are SUSTAINED with respect to his overnight stay in 3

West Left Cell 3 on April 30, 2021 (ECF Nos. 23 ¶ 16; 26 at 7). Chapple is given LEAVE TO

AMEND his claims regarding the condition of the cell he was placed in during the January 2021

incident (ECF No. 26 at 12) to address the deficiency about the duration of his stay in that cell.

The remainder of his sanitation and hygiene conditions-of-confinement claims are DISMISSED.

2. Food Tray Issues

The Magistrate’s Report and Recommendations recommended that all of Chapple’s food

tray claims be dismissed, except for the incident where he was given “fries [that] had body fluids

‘cum’ on them.” (ECF No. 23 ¶ 11). The Magistrate noted that the Complaint contains “no

allegations . . . about who purportedly tampered with Chapple’s food trays,” whereas § 1983 claims

require that the violation of a constitutional right be committed by a person acting under color of

state law. (ECF No. 24 at 16). The introduction of Chapple’s Objections clarifies that, at least for

the semen incident, he is alleging specifically that “John Jones & T. Kirkpatrick placed cum on

my fries and bit from my bagel.”8 (ECF No. 26 at 1 (emphasis added)). Elsewhere in the

introduction, Chapple writes that “when [he] see[s] the tray and it’s messed up, it’s not a difficult

question who done mess with the tray” based on which officer gave Chapple the tray and whether

8 Although this allegation is also a new fact, this Court takes it into consideration in evaluating Chapple’s

claims, pursuant to the liberal construction afforded pro se plaintiffs. See supra Part III.C.1 n.6.

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that officer had any problems with Chapple. (ECF No. 26 at 1). Although this statement comes

closer to alleging that certain officers messed with the trays for his other food tray claims, it does

not rise above the level of mere suspicions.

Moreover, the lack of specific allegations against defendants acting under the color of state

law was not the only flaw identified with Chapple’s food tray claims; Chapple also failed to

provide any specificity about what was wrong with his food trays beyond the fact that they were

“messed with” (except, again, for the incident with the fries). (See ECF No. 24 at 12). This missing

information was not addressed at all in Chapple’s objections. In other words, Chapple has failed

to identify any specific defendants acting under color of state law or described how his food was

messed up with respect to his other food tray claims.

Accordingly, this Court SUSTAINS Chapple’s objection regarding the claim in Paragraph

11 of the Complaint; he may PROCEED on his claim against John Jones and Kirkpatrick that

they placed semen on his fries (ECF No. 23 ¶ 11). His remaining food tray objections are

OVERRULED and those claims are DISMISSED.

3. Water Issues

The introduction of Chapple’s Objections, the fourth objection, and seventh objection (ECF

No. 26 at 1, 8, 11) allege specific facts that contest the Report and Recommendation’s analysis of

Chapple’s water issue claims. In the Complaint, Chapple merely alleges that something is wrong

with the water at FCCC, but “does not articulate what is wrong with the water, or describe how it

looks, tastes, or makes him feel.” (ECF No. 24 at 17). The Objections, on the other hand, are far

more specific. Chapple suggests that Officer Crunkshank, who was not named in the Complaint,

gave inmates juice from “a bag that was opened & sitting inside of a trash can that had trash in it.”

(ECF No. 26 at 1, 8). He also suggests that the water at FCCC is “full of lead.” (Id. at 11).

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Courts have found that “the right to be free from deliberate indifference to serious medical

needs” encompasses claims by inmates against prison officers who knowingly failed to protect

inmates from exposure to toxins, such as friable asbestos or environmental tobacco smoke.

LaBounty v. Coughlin, 137 F.3d 68, 72–74 (2nd Cir. 1998); see also Helling, 509 U.S. at 35.

Whether Kingsley requires the modification of the traditional subjective prong of deliberate

indifference claims with respect to environmental hazards is unknown, see supra Part III.C, but

Chapple’s water issue claim falls short under either the subjective or modified standards. There is

no doubt that exposure to lead in drinking water would pose a “substantial risk of serious harm.”

Farmer, 511 U.S. at 834. Chapple has not, however, provided factual allegations, in the Complaint

or in his Objections, that any of the defendants either had knowledge about the presence of lead in

the FCCC water or should have known about the lead. Cf. Brawner, 14 F.4th at 596 (defining

reckless disregard in the Fourteenth Amendment deliberate indifference context as acting

deliberately and “recklessly in the face of an unjustifiably high risk of harm that is either known

or so obvious that it should be known” (internal quotations omitted)).

Accordingly, Chapple’s objections with respect to his water issue claims are

OVERRULED.

D. Verbal Harassment

This Court next turns to Chapple’s fifth objection (ECF No. 26 at 9), which is directed at

the magistrate’s determination that his verbal harassment claim is without basis. (ECF No. 24 at

29). The Magistrate’s Report and Recommendation correctly notes that, under Sixth Circuit

precedent, “[h]arassing or degrading language by a prison official, while unprofessional and

despicable, does not amount to a constitutional violation.” (Id. (quoting Mallory v. Smith, 2017

WL 3484690, at *3 (W.D. Ky. Aug. 14, 2017) (collecting cases))). Chapple does not dispute the

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case law cited by the magistrate or suggest that there are facts that the magistrate overlooked or

misunderstood; instead, he simply retells the relevant incidents involving Defendant Boyd

“coming and going to my window saying intagonizing [sic] things.” (ECF No. 26 at 9). As this

objection fails to specify the findings Chapple believes to be in error, Chapple’s fifth objection is

OVERRULED.

E. Failure-to-Protect Claims

Finally, this Court considers Chapple’s failure-to-protect claims, which the Magistrate

Judge recommended that this Court dismiss. (ECF No. 24 at 25). In reaching that conclusion, the

Report and Recommendation noted that Chapple did not provide any “allegation[s] that the

inmates in the medical tank represented a high risk of harm to Chapple that was known or so

obvious it should have been known” or “that the officers involved acted with reckless disregard

for Chapple’s safety.” (Id.). Chapple’s sixth objection addresses this rationale, noting that the

other inmates in the medical tank were “predators that has [sic] a history of preying upon the ones

weaker than them.” (ECF No. 26 at 10).

The Sixth Circuit has extended the Brawner modification of the subjective prong of

deliberate indifference claims to failure-to-protect claims against individual officers. See

Westmoreland, 29 F.4th at 728.9 This standard requires the detainee to show that the officers acted

with “reckless disregard,” which is met when:

(1) The defendant made an intentional decision with respect to the conditions under

which the plaintiff was confined; (2) Those conditions put the plaintiff at substantial

risk of suffering serious harm; (3) The defendant did not take reasonable available

measures to abate that risk, even though a reasonable officer in the circumstances

would have appreciate the high degree of risk involved — making the consequences

9 The Sixth Circuit’s decision in Westmoreland v. Butler Cnty, 29 F.4th 721 (6th Cir. 2022) was issued the

day after the Magistrate Judge in this case issued her Report and Recommendation (ECF No. 24).

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of the defendant’s conduct obvious; and (4) By not taking such measures, the

defendant caused the plaintiffs injuries.

Id. at 729 (citing Castro, 833 F.3d at 1071). Chapple’s objection suggests that there was a risk of

harm when he was placed in the medical tank; the objection does not, however, suggest that any

FCCC officers ignored reasonable available measures to abate that risk, nor does Chapple provide

any factual allegations supporting his claim that the other inmates in the tank were “predators”

with so notable a history that the high degree of risk was obvious.

Accordingly, Chapple’s objections with respect to his failure-to-protect claims are

OVERRULED.

IV. CONCLUSION

This Court has conducted an independent review of the pleadings and arguments. For the

reasons discussed above, Chapple’s objections are SUSTAINED IN PART and OVERRULED

IN PART. The Magistrate Judge’s Report and Recommendation is ADOPTED AS MODIFIED.

Accordingly, Chapple may PROCEED with: (1) the excessive force claims against Defendants

Curren, John Jones, Sgt. Neal, Robinson, Bateman, and Sgt. Neely (in their individual capacities);

and (2) with the conditions of confinement claims against Defendants Sgt. Howard, John Jones,

and Kirkpatrick identified above in Sections III-C.1 and III.C.2 (in their individual capacities).

Chapple is granted LEAVE TO AMEND the conditions of confinement claim identified in

Section III.C.1 and the religious nights clam WITHIN THIRTY (30) DAYS. Plaintiff's

remaining claims are DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

ALGENON L. MARB

CHIEF UNITED STATES DISTRICT JUDGE

DATE: November 7, 2022

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