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Herbig v. Louisville Metro Department of Corrections

United States District Court, W.D. Kentucky, Louisville Division

September 18, 2019



          Rebecca Grady Jennings, District Judge

         Plaintiff Gregory Herbig[1] filed the instant pro se 42 U.S.C. § 1983 action proceeding in forma pauperis. This matter is before the Court on an initial review of the complaint pursuant to 28 U.S.C. § 1915A. For the reasons stated below, the Court will dismiss the action.


         Plaintiff is a convicted inmate at the Louisville Metro Department of Corrections (LMDC). He sues LMDC; LMDC Jailer Mark Bolton in his individual and official capacities; and Trinity Food Service.

         Plaintiff states, “My violated right(s) were constitutionaly commited by cruel & unusual punishment in which damaged both my mental and physical aspect’s of life.” He reports that on May 21, 2019, dinner trays were served by Officer Shuler. He states that the trays “consisted of sppegattie & corn in which contained dead bug’s namely maggots but not limited to.” He states that his dorm was the second dorm to be served. He asserts that the entire floor was served the same tray. Plaintiff maintains, “During the time tray’s were being served, is when this issue was discovered, is when it was brought to Officer Shuler’s attention and upon observation by Mr. Shuler, Mr. Shuler stopped serving all tray’s & he then notified Sargent Gram.” Plaintiff continues, “Upon the finding’s by both Sargent Gram & Officer Shuler, Mr. Shuler the[n] collected all served & unserved tray’s and sent everything back down to the kitchen after both video and camera shots were taken.” Plaintiff asserts that when the kitchen staff observed the issue, they re-made new trays and served them to the entire floor later that evening.

         Plaintiff states, “Since the time of the incedent to this present day, I have a fear of eating the meal’s here at LMDC, due the admittance by change of food & lack of proper supervision by kitchen staff to inspect & properly serve eatable food.” He further asserts, “Both open record’s & grievance was filed as a matter of record & right to no avail to support this filing, again, with no reply from either, to this said date at bar.”

         As relief, Plaintiff seeks compensatory and punitive damages and injunctive relief in the form of “expunging entire criminal record.”


         When a prisoner initiates a civil action seeking redress from a governmental entity, officer, or employee, the trial court must review the complaint and dismiss the complaint, or any portion of it, if the court determines that the complaint is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See § 1915A(b)(1), (2); McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007).

         In order to survive dismissal for failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[A] district court must (1) view the complaint in the light most favorable to the plaintiff and (2) take all well-pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)). “But the district court need not accept a ‘bare assertion of legal conclusions.’” Tackett, 561 F.3d at 488 (quoting Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). Although this Court recognizes that pro se pleadings are to be held to a less stringent standard than formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991), “[o]ur duty to be ‘less stringent’ with pro se complaints does not require us to conjure up unpled allegations.” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979) (citation omitted).

         III. ANALYSIS

         A. Food tray

         The Court construes Plaintiff’s allegations concerning the condition of his food tray as alleging a claim under the Eighth Amendment’s Cruel and Unusual Punishments Clause. An Eighth Amendment claim has both an objective and subjective component: (1) a sufficiently grave deprivation of a basic human need; and (2) a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 298 (1991). A prison’s conditions of confinement are sufficiently grave if they fall beneath “the minimal civilized measure of life’s necessities” as measured by a “contemporary standard of decency.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). A prison official inflicting such conditions acts with a sufficiently culpable state of mind if he does so with “deliberate indifference.” Wilson, 501 U.S. at 303.

         To state a constitutional violation for unsanitary food preparation, a prisoner must do more than allege a single or isolated incident of contamination. Hamm v. DeKalb Cty., 774 F.2d 1567, 1575 (11th Cir. 1985). “The fact that the [prison] food occasionally contains foreign objects or sometimes is served cold, while unpleasant, does not amount to a constitutional deprivation.” Smith v. Younger, No. 95-5482, 1999 U.S. App. LEXIS 20168, at *6 (6th Cir. Aug. 9, 1999) (affirming district court’s dismissal of plaintiff’s Eighth Amendment claim based on the presence of a worm in her peanut butter) (internal quotation omitted); see also Chavis v. Fairman, 51 F.3d 275 (7th Cir. 1995) (holding that occasional service of spoiled food cannot be said to deprive inmates of basic nutritional needs); Fant v. Jones, No. CV 14-3574-SJO (SP), 2015 U.S. Dist. LEXIS 147657, at *9-10 (C.D. Cal. Sept. 14, 2015) (finding no Eighth Amendment claim where the plaintiff alleged that on three occasions over a two-year period he was served meals with insects either in his food or on his tray); Wiley v. Dep’t of Corr., No. 11-97-HRW, 2012 2012 U.S. Dist. LEXIS 166385, at *23 (E.D. Ky. Nov. 21, 2012) (holding that one incident of discovering a dead rat in soup was not ...

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