# Harris v. Mackey

> District Court, N.D. Ohio · October 22, 2024

URL: https://www.frixlaw.com/law-library/cases/10664775

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** October 22, 2024
- **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/10664775

## How later opinions describe it (automated extraction)

- noting that the requirement that EPA first “find” a violation made Section 7413 a non-discretionary duty

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10664775. Public record. Not legal advice.