Brown v. Bargery

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2000 FED App. 0109P (6th Cir.)

File Name: 00a0109p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

;



FORREST ZAYNE BROWN,



Plaintiff-Appellant,





No. 98-6481

STEPHEN MICHAEL



RICHMOND, CHRISTOPHER >

MICHAEL CROFT, and TONY 



Plaintiffs, 

LYNN MEADOWS,







v.





Defendant-Appellee. 

ALAN BARGERY,



1

Appeal from the United States District Court

for the Western District of Tennessee at Jackson.

No. 98-01217—James D. Todd, District Judge.

Submitted: February 2, 2000

Decided and Filed: March 27, 2000

Before: MERRITT, SILER, and MOORE, Circuit Judges.

1

2 Brown, et al. v. Bargery No. 98-6481

_________________

COUNSEL

ON BRIEF: Forrest Zayne Brown, Chattanooga, Tennessee,

pro se.

MOORE, J., delivered the opinion of the court, in which

MERRITT, J., joined. SILER, J. (pp. 9-10), delivered a

separate dissenting opinion.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. Forrest Zayne

Brown, a Tennessee prisoner proceeding pro se and in forma

pauperis, appeals a district court order dismissing his 42

U.S.C. § 1983 civil rights claim as frivolous pursuant to 28

U.S.C. § 1915(e)(2). Because Brown’s complaint contains

factual allegations and legal theories that conceivably

implicate Eighth Amendment concerns, the district court

erred when it dismissed the complaint as frivolous pursuant

to § 1915(e)(2). Furthermore, we believe the error was not

harmless because the district court could not have properly

dismissed Brown’s complaint pursuant to § 1915(e)(2) for

failure to state a claim on which relief may be granted. Thus,

we REVERSE the district court’s judgment, and REMAND

the case to the district court for further proceedings consistent

with this opinion.

I. BACKGROUND

Brown and three other inmates at the Hardeman County

Correctional Facility brought this § 1983 suit against their

warden, Alan Bargery, seeking equitable relief on grounds

that the conditions at the prison violated their Eighth

Amendment rights. Plaintiffs alleged that the sleeping bunks

located in one of the prison’s housing units had been

improperly installed upside down, causing the inmates to slide

10 Brown, et al. v. Bargery No. 98-6481 No. 98-6481 Brown, et al. v. Bargery 3

I have had to go to the extremes of taking an old piece of off their bunks and land onto the concrete floor. Plaintiffs

sheet, ripping it into strips, and actually tying my also alleged that the anchor bolts that fasten the bunks to the

mattress onto the steel bunk so that it would no longer wall improperly protruded into their sleeping area, which

slide off. could potentially cause an injury. Brown initially filed a

grievance with the prison’s review committee, but the

Thus, his bed has been taken care of. If the cruel and unusual grievance was denied after prison officials claimed that the

punishment here is allowing the mattresses to slide off the sleeping bunks had been installed in accordance with the

steel bunks, then inmates can easily cure the problem by tying manufacturer’s specifications.

the mattresses in the very creative way suggested by Brown,

or in some other fashion. On August 26, 1998, Brown and the other inmates filed a

motion to proceed in forma pauperis. Brown was the only

That leaves as an issue only the bolts which stick out of the one of the inmates who properly completed and submitted an

wall and upon which inmates occasionally scratch themselves. in forma pauperis affidavit and a prison trust fund account

I do not see how protruding bolts can constitute cruel and statement. On September 22, 1998, the district court

unusual punishment, even if they stick out over a bunk. They “screened” the case in accordance with the Prison Litigation

are not spikes and they do not seem to protrude for any great Reform Act of 1995 (“PLRA”), dismissing it sua sponte

distance, according to the diagram in the record. pursuant to 28 U.S.C. § 1915(e)(2) on grounds that the Eighth

Amendment claim was frivolous. The district court also

The Constitution “does not mandate comfortable prisons.” certified pursuant to 28 U.S.C. §11915(a)(3) that an appeal

Rhodes v. Chapman, 452 U.S. 337, 349 (1981). The could not be taken in good faith. Brown now appeals the

“officials must ensure that inmates receive adequate food, district court’s decision to dismiss his complaint as frivolous.

clothing, shelter, and medical care, and must ‘take reasonable

measures to guarantee the safety of the inmates.’” Farmer, II. ANALYSIS

511 U.S. at 832 (quoting Hudson v. Palmer, 468 U.S. 517,

526-27) (1984)). The district court granted Brown’s motion to proceed in

forma pauperis and then dismissed his complaint as frivolous

The officials in the institution involved in this case may pursuant to 28 U.S.C. § 1915(e)(2).2 This court has held that

have been unwise or negligent, but their conduct has not risen

to the level of being deliberately indifferent under the Eighth

Amendment. Therefore, I would affirm the decision of the 1

district court. Brown may appeal the district court’s dismissal of the complaint as

frivolous even though the district court certified pursuant to 28 U.S.C.

§ 1915(a)(3) that an appeal could not be taken in good faith. See, e.g.,

McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997).

2

28 U.S.C. § 1915(e)(2) provides:

Notwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines

that–

(A) the allegation of poverty is untrue; or

(B) the action or appeal–

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or

4 Brown, et al. v. Bargery No. 98-6481 No. 98-6481 Brown, et al. v. Bargery 9

a district court should only use § 1915(e)(2) to screen a ______________

prisoner complaint in those instances where a prisoner is

proceeding in forma pauperis. See Benson v.O’Brian, 179 DISSENT

F.3d 1014 (6th Cir. 1999). Because Brown has requested ______________

leave to proceed in forma pauperis, the district court properly

applied the screening requirements set forth in § 1915(e)(2) SILER, Circuit Judge, dissenting. Although I agree that the

to the allegations in this case.3 district court might have erroneously dismissed the case as

frivolous under 28 U.S.C. § 1915(e)(2), I feel that we should

We review de novo a judgment dismissing a suit as nevertheless affirm the decision of the district court because

frivolous pursuant to §§ 1915(e)(2) and 1915A(b). McGore, Forrest Zayne Brown, the plaintiff, failed to state a claim

114 F.3d at 604. The Supreme Court has explained that a upon which relief may be granted under either 28 U.S.C.

complaint should be dismissed as frivolous only if it lacks an § 1915(e)(2)(B)(ii) or 28 U.S.C. § 1915A(b)(1).

arguable basis in law or fact. Neitzke v. Williams, 490 U.S.

319, 325 (1989). A complaint lacks an arguable basis in law The Eighth Amendment only arises in prison conditions

or fact if it contains factual allegations that are “fantastic or when an official is deliberately indifferent “to a substantial

delusional” or if it is based on legal theories that are risk of serious harm to an inmate.” Farmer v. Brennan, 511

indisputably meritless. Id. at 327-28; see also Lawler v. U.S. 825, 828 (1994). Even considering the evidence in the

Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990) (“Examples of light most favorable to Brown, as we must in a motion to

legal claims which are frivolous under Neitzke would be a dismiss, I do not see that there was a substantial risk of

state prisoner’s assertion of an eighth amendment claim serious harm to Brown. The conditions of which he

stemming from the actions of a state corrections officer complains are that the bunks are improperly installed in some

against the United States Attorney General or a prisoner’s of the areas, including his cell in the prison, resulting in his

assertion of a right to have a steak dinner once a week.”). falling out of bed and skin abrasions from the bolts which

protrude from the wall near his bunk.

In Nietzke, the Supreme Court considered a district court’s

sua sponte dismissal of a plaintiff’s Eighth Amendment claim I do not question the subjective test which the majority

on grounds that the claim was frivolous. The plaintiff in states is required, because Brown has apparently brought the

Nietzke, an inmate in the custody of the Indiana Department defective conditions to the attention of prison authorities.

of Corrections, alleged that his Eighth Amendment rights had However, the objective test set out in Farmer is the one

been violated by prison officials who repeatedly denied his which fails in this case. This is a simple case of alleged

negligence. According to the district court, the plaintiffs

could file a claim against the state on a negligence theory

under Tennessee law, but a negligence claim is not actionable

(iii) seeks monetary relief against a defendant who is immune under 42 U.S.C. § 1983. See Wilson v. Seiter, 501 U.S. 294,

from such relief. 298 (1991). Admittedly, the failure of the bunk as presently

3 installed without the lip on the upper side to retain the

The district court should also have applied the screening mattress might cause mattresses to slip, when the inmate rolls

requirements set forth in 28 U.S.C. § 1915A(b), which are virtually

identical to the screening requirements set forth in § 1915(e)(2). McGore about in his bed. However, Brown’s original complaint

v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). Section 1915A provided an excellent solution which any inmate who rolls

applies in the present case because Brown is a prisoner who seeks redress about in his bed could effect. In his complaint, he states:

from a government employee. 28 U.S.C. § 1915A(a).

8 Brown, et al. v. Bargery No. 98-6481 No. 98-6481 Brown, et al. v. Bargery 5

we must assume, for present purposes, that the beds in the requests for medical treatment. The district4 court screened

specified housing units were improperly installed upside the case pursuant to 28 U.S.C. § 1915(d), dismissing the

down, which would pose an unreasonable risk of future injury complaint as frivolous after it determined that these

by causing inmates to fall from their bunks while asleep and allegations merely “described a constitutionally

by subjecting inmates to the hazards of rolling into sharp noncognizable instance of medical malpractice.” Nietzke, 490

protruding mounting bolt studs. Pls.’ Compl. at 2. Moreover, U.S. at 321-22. In dismissing the complaint, the district court

we must assume – based on Brown’s allegations concerning equated the standard for frivolousness with the standard for a

his repeated attempts to notify prison officials about the dismissal for the failure to state a claim upon which relief

conditions in his cell – that the warden knew about and may be granted. On appeal, the Seventh Circuit reversed the

deliberately disregarded the risk to Brown’s health and safety. district court’s determination that the complaint was

See Pls.’ Compl. at 2-5. Thus, we hold that the district court’s frivolous, and a unanimous Supreme Court affirmed the

dismissal of Brown’s complaint as frivolous was not harmless Seventh Circuit’s decision. The Court explained that “[w]hen

because the district court could not have properly screened a complaint raises an arguable question of law which the

this case under § 1915(e)(2) even if the district court had district court ultimately finds is correctly resolved against the

articulated as its theory for dismissing the complaint the plaintiff, dismissal on Rule 12(b)(6) grounds is appropriate,

rationale of failure to state a claim on which relief may be but dismissal on the basis of frivolousness is not.” Id. at 328.

granted.

In the present case, the district court determined that

III. CONCLUSION Brown’s personal safety claims were legally frivolous because

his complaint did not satisfy the objective and subjective

Because Brown’s complaint contains factual allegations components of an Eighth Amendment violation. Like the

and legal theories that conceivably implicate Eighth district court in Nietzke, the district court in this case has

Amendment concerns, the district court erred when it confused a dismissal on grounds that a complaint is frivolous

dismissed the complaint as frivolous pursuant to § 1915(e)(2). with a dismissal for the failure to state a claim upon which

Furthermore, we believe the district court could not have relief may be granted. Indeed, it is important to remember

properly dismissed Brown’s complaint pursuant to that Brown’s complaint is frivolous only if the legal theories

§ 1915(e)(2) even on the basis of failure to state a claim on raised in the complaint are indisputably meritless or if the

which relief may be granted. Thus, we REVERSE the factual contentions are fantastic or delusional. Here, Brown’s

district court’s judgment, and REMAND the case to the claims regarding the improperly installed sleeping bunks

district court for further proceedings consistent with this could conceivably implicate Eighth Amendment concerns.

opinion. See, e.g., Thaddeus-X v. Blatter, 175 F.3d 378, 402-03 (6th

Cir. 1999) (en banc) (holding that material issues of fact

precluded summary judgment on inmate’s Eighth Amendment

4

Congress revised § 1915(d) and renumbered it as § 1915(e)(2) when

it enacted the Prison Litigation Reform Act of 1995. Although Congress

has made several substantive changes to § 1915 since the Supreme

Court’s decision in Nietzke, see, e.g., Benson, 179 F.3d at 1016, these

changes do not affect the Court’s analysis so far as the decision attempts

to clarify what is meant by the term “frivolous.”

6 Brown, et al. v. Bargery No. 98-6481 No. 98-6481 Brown, et al. v. Bargery 7

claims challenging the conditions of his confinement). Thus, inmate must show that prison officials had “a sufficiently

we conclude that the district court erred when it dismissed culpable state of mind.” Id. (citations omitted). “In prison-

Brown’s complaint as frivolous pursuant to § 1915(e)(2). conditions cases that state of mind is one of ‘deliberate

indifference’ to inmate health or safety.” Id. (citations

Furthermore, we believe that the district court’s decision to omitted). Although the deliberate indifference standard

dismiss Brown’s complaint as frivolous does not amount to “describes a state of mind more blameworthy than

a harmless error because the district court could not have negligence,” this standard is satisfied if “the official knows of

properly dismissed Brown’s complaint pursuant to and disregards an excessive risk to inmate health or safety; the

§ 1915(e)(2) even if it had articulated as its theory that official must both be aware of facts from which the inference

Brown’s complaint failed to state a claim on which relief may could be drawn that a substantial risk of serious harm exists,

be granted. We review de novo a judgment dismissing a suit and he must also draw the inference.” Id. at 835, 837.

for failure to state a claim upon which relief may be granted

pursuant to §§ 1915(e)(2) and 1915A(b), viewing all the facts Here, Brown’s allegations regarding the improperly

alleged in the complaint, as well as any inferences reasonably installed sleeping bunks deal primarily with a single problem

drawn from those facts, in the light most favorable to the at the prison: the unsafe sleeping environment in which the

plaintiff. McGore, 114 F.3d at 604. Dismissal of a complaint improperly installed bunks caused inmates to slide off their

for the failure to state a claim on which relief may be granted bunks and land on the concrete cell floor and subjected

is appropriate only if it appears beyond a doubt that the inmates to the hazzards of rolling into protruding anchor bolt

plaintiff can prove no set of facts in support of his claim that studs. Pls.’ Compl. at 2. These allegations are analogous to

would entitle him to relief. See Sistrunk v. City of those made in Helling v. McKinney, 509 U.S. 25, 28 (1993),

Strongsville, 99 F.3d 194, 197 (6th Cir. 1996) (“A motion to a case in which an inmate brought a § 1983 claim against

dismiss may be granted under Fed.R.Civ.P. 12(b)(6) ‘only if prison officials, alleging that these officials had violated his

it is clear that no relief could be granted under any set of facts Eighth Amendment rights by forcing him to share a cell with

that could be proved consistent with the allegations.’”) another inmate who smoked five packs of cigarettes a day.

(quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)), The Supreme Court concluded that the inmate had sufficiently

cert. denied, 520 U.S. 1251 (1997). alleged an Eighth Amendment claim because the Eighth

Amendment prohibits prison officials from exhibiting

Brown has sufficiently stated an Eighth Amendment claim deliberate indifference toward future health problems that an

if he has alleged facts that, if proven, would show that prison inmate may develop as a result of current prison conditions.

officials acted with “deliberate indifference” towards Id. at 35. As the Court explained, “[A plaintiff] states a cause

conditions at the prison that created a substantial risk of of action under the Eighth Amendment by alleging that

serious harm. Farmer v. Brennan, 511 U.S. 825, 834 (1994); [defendants] have, with deliberate indifference, exposed him

see also Woods v. Lecureux, 110 F.3d 1215, 1222 (6th Cir. to levels of [Environmental Tobacco Smoke] that pose an

1997). This test involves both an objective and subjective unreasonable risk of serious damage to his future health.” Id.

component. The objective component requires an inmate to

show that the alleged deprivation is “sufficiently serious.” Like the inmate in Helling, the plaintiffs in the present case

Farmer, 511 U.S. at 834 (citations omitted). As the Supreme have alleged facts that could conceivably show that the

Court explained in Farmer, “[T]he inmate must show that he warden acted with deliberate indifference towards future

is incarcerated under conditions posing a substantial risk of health problems that the inmates may develop as a result of

serious harm.” Id. To satisfy the subjective component, an the unsafe sleeping conditions in their housing cells. Indeed,