Harris v. Mackey

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

DWAYNE HARRIS, ) Case No. 1:24-cv-1215

)

Plaintiff, ) Judge J. Philip Calabrese

)

v. ) Magistrate Judge

) James E. Grimes, Jr.

MISTY MACKEY, Warden, et al., )

)

Defendants. )

)

OPINION AND ORDER

Dwayne Harris, an inmate at the Lake Erie Correctional Institution, filed this

action without a lawyer against Warden Misty Mackey, Safety and Sanitation Officer

Mr. Dunbar, Core Civic President Damon T. Hininger, Ohio Department of

Rehabilitation and Correction Director Annette Chambers-Smith, former United

States Environmental Protection Agency Administrator Andrew R. Wheeler, and

current United States EPA Administrator Michael S. Regan. Plaintiff claims that he

is being exposed to black mold, asbestos, aggressive geese, and goose feces at Lake

Erie Correctional. Further, he claims that prison officials refuse to provide him with

adequate medical treatment for fifteen medical conditions. He asserts claims under

42 U.S.C. § 1983, the Administrative Procedure Act, the Clean Water Act, the Clean

Air Act, and the Toxic Substances Control Act. He seeks monetary damages and

injunctive relief.

STATEMENT OF FACTS

The complaint contains very few facts. It is composed almost entirely of legal

argument. Plaintiff indicates that he arrived at Lake Erie Correctional on February

21, 2024. Lake Erie Correctional is a private prison owned and operated by Core

Civic. Lake Erie Correctional houses State prisoners under contract with the ODRC.

Plaintiff states that the Lake Erie Correctional prison compound is infested

with wild geese that behave aggressively toward people. Further, he states that the

geese deposit feces on the basketball courts, handball courts, the baseball field, and

workout courts. Inmates in these areas may step on feces and bring it into the prison

on their shoes. Plaintiff contends that these circumstances create a hazard to his

health. Also, he states that Lake Erie Correctional has black mold and asbestos. He

indicates that the ODRC has a policy requiring unit staff and administrative deputy

officers to conduct daily sanitation inspections in the housing units. Because of this

policy, he contends that Defendants have personal knowledge of the conditions.

Also, Mr. Harris alleges that he was been denied adequate medical treatment

for cancer, headaches, sinus problems, blurred vision, breathing difficulty, irritated

eyes, stomach virus, diarrhea, abdominal pain, fever, a defective immune system,

cryptosporidium, giardia, and cryptosporidiosis. He claims this denial of care violates

his Eighth Amendment rights.

Mr. Harris seeks an order requiring Defendants to arrange for him to be

evaluated by a qualified physician and to follow that physician’s recommended

treatment. Additionally, he seeks a transfer to a level 2 institution and an award of

monetary damages.

ANALYSIS

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, 324 (1989); Lawler v. Marshall,

898 F.2d 1196, 1198 (6th Cir. 1990); Sistrunk v. City of Strongsville, 99 F.3d 194, 197

(6th Cir. 1996). A claim lacks an arguable basis in law or fact when it is premised on

an indisputably meritless legal theory or when the factual contentions are clearly

baseless. Neitzke, 490 U.S. at 327.

A cause of action fails to state a claim upon which relief may be granted when

it lacks “plausibility in the Complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564

(2007). A pleading must contain a “short and plain statement of the claim showing

that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009).

The factual allegations in the pleading must be sufficient to raise the right to relief

above the speculative level on the assumption that all the allegations in the complaint

are true. Twombly, 550 U.S. at 555. The plaintiff is not required to include detailed

factual allegations, but must provide more than “an unadorned, the-Defendant-

unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A pleading that offers

legal conclusions or a simple recitation of the elements of a cause of action will not

meet this pleading standard. Id. In reviewing a complaint, the Court must construe

the pleading in the light most favorable to the plaintiff. Bibbo v. Dean Witter

Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998).

I. Federal Defendants

Plaintiff brings claims against former United States Environmental Protection

Agency Administrator Andrew R. Wheeler and current the agency’s current

Administrator Michael S. Regan under the Administrative Procedure Act, 5 U.S.C.

§ 706(1); the Clean Water Act, 33 U.S.C. § 1365(a)(2), the Clean Air Act, 42 U.S.C.

§ 7604(a)(1)(2), 42 U.S.C. § 7607(a); and the Toxic Substances Control Act, 15 U.S.C.

§ 2601(b)(1)(2). As an initial matter, Mr. Wheeler served as the Administrator of the

EPA from 2019 to 2021. Plaintiff did not arrive at Lake Erie Correctional until

February 2024, some three years after Mr. Wheeler left office. Plaintiff failed to

allege facts that establish a claim against Mr. Wheeler or standing to pursue any

such claim.

I.A. Clean Water Act

Plaintiff purports to bring suit under a provision of the Clean Water Act that

permits a private citizen to sue on his own behalf. Broadly, the Act states that, with

certain exceptions, the discharge of any pollutant by any person without an

appropriate permit shall be unlawful. 33 U.S.C. § 1311. The Clean Water Act defines

“discharge of a pollutant” as “any addition of any pollutant to navigable waters from

any point source.” Id. § 1362(12)(A). The term “pollutant” includes “dredged spoil,

solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions,

chemical wastes, biological materials, radioactive materials, heat, wrecked or

discarded equipment, rock, sand, cellar dirt and industrial, municipal, and

agricultural waste discharged into water,” Id. § 1362(6). “The term ‘point source’

means any discernible, confined and discrete conveyance, including but not limited

to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling

stock, concentrated animal feeding operation, or vessel or other floating craft, from

which pollutants are or may be discharged.” Id. § 1362(14). Finally, “‘navigable

waters' means the waters of the United States, including territorial seas.” Id.

§ 1362(7). Therefore, a viable claim under the Clean Water Act requires: (1) the

addition (2) of a pollutant (3) to navigable waters (4) from a point source (5) by a

person. 33 U.S.C. §§ 1311(a), 1362(6), (7), (12), (14) & (16).

Plaintiff’s complaint makes no mention, directly or by inference of any person

discharging a pollutant through a point source (or otherwise) into a navigable body

of water. The Clean Water Act has no application to the facts alleged.

I.B. Clean Air Act

For similar reasons, Plaintiff’s claim under the Clean Air Act fails as a matter

of law. The federal Clean Air Act “creates a complex regulatory scheme designed ‘to

protect and enhance the quality of the Nation’s air resources.’” Sierra Club v.

Jackson, 648 F.3d 848, 851 (D.C. Cir. 2011) (quoting 42 U.S.C. § 7401(b)(1)). To

regulate air pollution, Congress developed a statutory partnership between the

States and the federal government.

EPA identifies air pollutants and sets national ambient air quality standards

(“NAAQS”). 42 U.S.C. § 7409(b). The States adopt one or more State Implementation

Plans (“SIPs”) showing how they will meet and maintain the NAAQS within their

territory. 42 U.S.C. § 7407(a). States retain primary responsibility to control air

pollution through SIPs. Id. With EPA approval, a State’s SIP is added to the Federal

Register and becomes federal law. See 40 C.F.R. § 52.1870 (Ohio’s SIP).

If a State does not enforce its SIP, EPA can choose to enforce the SIP against

violators by issuing an order to comply with the SIP, imposing an administrative

penalty, or bringing a civil action to force compliance. 42 U.S.C. §§ 7413(a)(1)(A)–(C).

Failing that, if EPA first finds that any requirement of an approved plan is not being

implemented, it must sanction the State. 42 U.S.C. § 7509(a)(4).

Ordinary citizens may bring a civil action on their own behalf against the EPA

Administrator where he has allegedly failed to perform any act or duty under this

statute which is not discretionary. 42 U.S.C. §§ 7604(a)(2); Askins v. Ohio Dep’t of

Agric., 809 F.3d 868, 876–77 (6th Cir. 2016) (citing 33 U.S.C. § 1365(a)(2) and

Department of Energy v. Ohio, 503 U.S. 607, 615 (1992)) (analyzing the Clean Water

Act’s citizen suit provision, which has language identical to the Clean Air Act). “A

duty is non[-]discretionary under the Clean Air Act if it is ‘clear-cut’ and requires the

Administrator to act by a ‘date-certain deadline.’” Sierra Club v. Wheeler, 956 F.3d

612, 616 (D.C. Cir. 2020).

Plaintiff’s claim under the Clean Air Act has multiple deficiencies. First, he

has not identified a particular pollutant that the prison is placing into the air in such

quantities that it violates State or federal air quality standards. On that basis alone,

he fails to state a claim under the Clean Air Act.

Further, Plaintiff has not identified a non-discretionary duty that the EPA

Administrator failed to perform. He states only that the EPA Administrator is

responsible for inspecting Lake Erie Correctional for violations of the Act. However,

the Clean Air Act does not impose a “clear-cut” duty for EPA to enforce a SIP. To the

contrary, the general federal enforcement provision that provides EPA with power to

enforce a SIP, 42 U.S.C. § 7413, is discretionary. EPA must “find[ ] that any person

has violated” a requirement in a SIP before seeking enforcement. 42 U.S.C.

§§ 7413(a)(1)–(3) & (5). Finding a violation involves a discretionary action. See

Askins, 809 F.3d at 876–77 (citizens could not sue under the Clean Water Act where

EPA first had to choose to hold a hearing to determine whether a State was violating

that provision of the Clean Water Act); City of Seabrook v. Costle, 659 F.2d 1371,

1374–75 (5th Cir. Unit A Oct. 1981) (noting that the requirement that EPA first “find”

a violation made Section 7413 a non-discretionary duty). Second, although EPA must

notify the violator and the State after it officially finds a violation, it “may” choose to

enforce the SIP’s requirements and pursue remedies against the violators. 42 U.S.C.

§§ 7413(a)(1)(A)–(C). The use of the permissive term “may” indicates that this action

is discretionary. Biden v. Texas, 597 U.S. 785, 802 (2022) (quotations omitted). EPA

does not have a non-discretionary duty to inspect a State correctional institution and

act against it. For these reasons, Plaintiff fails to state a claim under the Clean Air

Act.

I.C. Administrative Procedures Act

Plaintiff asserts a claim under the Administrative Procedure Act. The APA

allows for judicial review of federal agency actions where an action is “made

reviewable by statute” or it is a “final agency action for which there is no other

adequate remedy in a court.” 5 U.S.C. § 704; see Berry v. U.S. Dep’t of Labor, 832

F.3d 627, 632 (6th Cir. 2016). While agency actions may be reviewable under the

APA, the opposite is true for refusals to take enforcement steps. Arizona v. Biden, 31

F.4th 469, 478 (6th Cir. 2022); Heckler v. Chaney, 470 U.S. 821, 831, (1985). An

agency’s choice not to prosecute or enforce, whether through civil or criminal process,

is a decision generally committed to an agency’s discretion. Id. Plaintiff has made

no showing that would warrant departing from this general rule. Nor does he have

a right under the APA to have an agency hold someone else liable.

I.D. Toxic Substances Control Act

Finally, the Toxic Substances Control Act, 15 U.S.C.A. § 2061(a), does not

apply to this case. It authorizes the federal government to file suit against an

imminently hazardous consumer product for seizure of the product or against any

person who is a manufacturer, distributor, or retailer of such a product, or both. The

term “imminently hazardous consumer product” means “a consumer product which

presents imminent and unreasonable risk of death, serious illness, or severe personal

injury.” 15 U.S.C. § 2061(a). Plaintiff does not allege that he purchased any product

from any Defendant that does or should meet this definition. Simply, he fails to state

a claim under this statute.

II. State Defendants

Plaintiff asserts Eighth Amendment claims under 42 U.S.C. §1983 against the

ODRC Director, the prison’s Warden, its Safety and Sanitation Officer, and the

President of Core Civic. He brings two claims under the Eighth Amendment. First,

Mr. Harris claims that the prison contains black mold, asbestos, and aggressive geese

that deposit feces on the outdoor recreation areas. Second, he asserts generally that

he is being denied appropriate medical care for a number of medical conditions.

II.A. ODRC Director

Plaintiff fails to state a claim against ODRC Director Annette Chambers-

Smith. He brings this action against her in her individual capacity. He claims Lake

Correctional has conditions that pose health threats to inmates at the facility. He

names Ms. Chambers-Smith as a Defendant because she oversees the operation of all

State-run prisons in Ohio. Lake Erie Correctional, however, is not a State-run prison.

It is a private prison owned and operated by Core Civic. It accepts Ohio prisoners

under contract with the State of Ohio. Ms. Chambers-Smith is not directly

responsible for the maintenance and operation of Lake Erie Correctional.

Moreover, even if she were considered to have authority over personnel at Lake

Erie Correctional, Plaintiff cannot hold her individually liable for the actions or

omissions of personnel at the facility. Plaintiff cannot establish the liability of any

Defendant in his or her individual capacity absent a clear showing that that

particular person was personally involved in the actions which form the basis of the

alleged constitutional violation Rizzo v. Goode, 423 U.S. 362, 371 (1976). Plaintiff’s

theory of liability as to Ms. Chambers-Smith cannot be based solely on her position

of authority or her role as a supervisor. Iqbal, 556 U.S. at 676. But he does not

allege facts suggesting that she was personally involved in any of the situations

described in the complaint. Therefore, she cannot be held personally liable.

II.B. Core Civic President, Warden, and Safety and Sanitation Officer

Plaintiff asserts two Eighth Amendment claims against Mr. Hininger,

Mr. Dunbar and Ms. Mackey. The Eighth Amendment imposes a constitutional

limitation on the power of the States to punish those convicted of crimes. The Eighth

Amendment protects inmates by requiring that “prison officials . . . ensure that

inmates receive adequate food, clothing, shelter, and medical care, and . . . ‘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)).

These protections, however, do not mandate that a prisoner be free from discomfort

or inconvenience during his or her incarceration. Ivey v. Wilson, 832 F.2d 950, 954

(6th Cir. 1987) (per curiam). Prisoners are not entitled to unfettered access to the

medical treatment of their choice. See Hudson v. McMillian, 503 U.S. 1, 9 (1992).

Nor can they “expect the amenities, conveniences and services of a good hotel.” Harris

v. Fleming, 839 F.2d 1232, 1235 (7th Cir.1988); see Thaddeus-X v. Blatter,175 F.3d

378, 405 (6th Cir. 1999). In sum, the Eighth Amendment affords the constitutional

minimum protection against conditions of confinement that constitute health threats,

but does address those conditions which cause the prisoner to feel merely

uncomfortable or which cause aggravation or annoyance. Hudson, 503 U.S. at 9–10

(requiring extreme or grave deprivation).

In Wilson v. Seiter, 501 U.S. 294, 298 (1991), the Supreme Court set forth a

framework for courts to use when deciding whether certain conditions of confinement

constitute cruel and unusual punishment that the Eighth Amendment guards

against. First, a plaintiff must plead facts which, if true, establish that a sufficiently

serious deprivation has occurred. Id. Routine discomforts of prison life do not suffice.

Hudson, 503 U.S. at 8. Only deliberate indifference to serious medical needs or

extreme deprivations regarding the conditions of confinement implicates the

protections of the Eighth Amendment. Id. at 9. Also, a plaintiff must establish a

subjective element showing that 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 where both the objective and subjective

requirements are met. Farmer v. Brennan, 511 U.S. 825, 834 (1994).

Plaintiff claims that prison officials refused to provide him with adequate

medical treatment for his chronic illnesses which he lists as: “diagnosed with Cancer;

Suffer Headaches; Sinus Problems; Blurred Vision; Breathing Difficulty’ Irritated

Eyes; Stomach Virus; Diarrhea; Abdominal Pain; Respiratory; Fever; Defective

Immune System; Cryptosporidium; Giardia; [and] Cryptosporidiosis . . . .” (ECF

No. 1, PageID #3.) But this allegation is wholly conclusory and fails to make a

showing that he has suffered a constitutional violation resulting from a failure to

treat his medical conditions. His complaint provides no information on what

treatments he was or was not provided or why those treatments or the lack of them

constitute deliberate indifference. Nor does he connect any Defendant to his

diagnosis and treatment. Indeed, the Warden, the Safety and Sanitation Officer, and

the President of Core Civic are not immediately implicated in the diagnosis and

treatment of inmate illnesses. Without more information, Plaintiff failed to state a

claim against these Defendants under the Eighth Amendment for his medical care.

Next, Plaintiff claims that aggressive wild geese inhabit the prison grounds

and deposit feces in recreation areas. The presence of wild geese does not present a

sufficiently serious threat to the health and safety of inmates to invoke Eighth

Amendment protections. Geese are migratory birds that arrive in Ohio every spring

and leave in the fall. They can be found throughout the State, on private and public

lands. They are a federally protected species under the Migratory Bird Treaty Act of

1918, 16 U.S.C. §§ 703–712, making it a violation of federal law to harm the geese,

goslings, nests, and eggs. While they may be disruptive, their presence creates

discomfort, aggravation and annoyance. They do not produce the type of serious

threat to health and safety that the Eighth Amendment addresses.

Also, Plaintiff claims that Lake Erie Correctional contains black mold and

asbestos. He provides no other allegations about these conditions, such as where they

might be found, how prevalent they are, or whether he was exposed to the in a

sufficient to make health effects possible. He does not allege that these conditions

are present in areas where he is housed, eats, exercises, or otherwise spends time.

Plaintiff provides so little factual information that it is difficult to determine whether

he is personally in any real danger from these conditions.

Further, Plaintiff fails to allege facts to suggest that any of the Defendants was

personally deliberately indifferent to his health and safety. Plaintiff claims that in

response to his grievances, the Institutional Inspector told him that the units are

inspected daily by unit staff and the Warden’s administrative staff. Therefore, he

should address his concerns with his Unit Manager. He states that he personally

showed the Core Civic President, the Warden, and the Safety and Sanitation Officer

these conditions every weekday from February 22, 2024 through July 2, 2024. (ECF

No. 1, PageID #16.)

Core Civic owns and operate 93 private prison facilities across the United

States. Mr. Hininger is the President and CEO of Core Civic working from the

corporate office in Tennessee. He oversees the administration of all of 93 facilities.

Construing the allegations of the complaint as true, Plaintiff suggests that

Mr. Hininger focused his attention on Lake Erie Correctional and spent every

weekday for four and one half months making daily inspections of the prison to

monitor its conditions. If true, those facts might show deliberate indifference to the

conditions of confinement at the prison. But they also show that Mr. Hininger had

great concern with the prison’s conditions—nearly the opposite of deliberate

indifference. Perhaps he or others were negligent in failing to remediate the

conditions. But negligence is not deliberate indifference. And no other allegations in

the complaint make out a showing of deliberate indifference.

Similarly, Plaintiff alleges that Warden Mackey and Mr. Dunbar accompanied

Mr. Hininger on these inspections every weekday for four and a half months to

monitor the conditions at the prison. Again, construing Plaintiff’s allegations as true,

this does not suggest deliberate indifference to conditions of confinement. He does

not allege any other facts pertaining to Warden Mackey or Mr. Dunbar. Plaintiff fails

to state a claim for relief under the Eighth Amendment.

CONCLUSION

For the foregoing reasons, the Court DISMISSES this action pursuant to 28

U.S.C. §1915(e). Accordingly, the Court DENIES AS MOOT Plaintiffs motions for

screening under the statute. (ECF No. 3; ECF No. 4; ECF No. 6.)

SO ORDERED.

Dated: October 22, 2024

J.PhilipCalabrese

United States District Judge

Northern District of Ohio

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