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Green v. Beth

United States District Court, W.D. Wisconsin

January 20, 2016

VALIANT GREEN, Plaintiff,
v.
DAVID G. BETH, BRAD HEILET, DAVE LIANEU, JANE AND/OR JOHN DOE NURSING STAFF and JOHN DOE FOOD VENDOR/DISTRIBUTOR, Defendants.

OPINION AND ORDER

BARBARA B. CRABB District Judge

Pro se prisoner Valiant Green has filed an amended complaint in response to this court’s November 12, 2015 order dismissing his original complaint for failing to provide fair notice of his claims, as required by Fed.R.Civ.P. 8. The scope of plaintiff’s amended complaint is similar to his original complaint, in which he alleged that he damaged several teeth after biting down on a rock in food served at the Kenosha County Detention Center. In addition, he alleged that he did not receive prompt medical care for his injury. He brings his claims under both the United States Constitution and Wisconsin’s common law for negligence.

In the November 12 order, I noted two types of problems with plaintiff’s complaint. First, plaintiff did not include allegations explaining how each of the defendants violated his rights. Second, with respect to the unknown defendants, plaintiff neither provided enough information to allow those defendants to be identified later in the case nor showed that he made reasonable efforts to uncover that information before filing his complaint. Because I conclude that plaintiff has not resolved either of those problems in his amended complaint, I am dismissing his claims under the Constitution for his failure to state a claim upon which relief may be granted. In accordance with 28 U.S.C. § 1367(c)(3), I am declining to retain jurisdiction over his state law claims. Plaintiff is free to refile those claims in state court if he wishes.

OPINION

A. Standard of Review

Plaintiff alleges in his amended complaint that he was a pretrial detainee at the time he was injured, which means that his claim is governed by the due process clause of the Fourteenth Amendment. Rice ex rel. Rice v. Correctional Medical Services, 675 F.3d 650, 664 (7th Cir. 2012). In the context of a claim like plaintiff’s regarding his conditions of confinement, the Court of Appeals for the Seventh Circuit has applied a “deliberate indifference” standard to pretrial detainees, which is the same standard applied to convicted prisoners under the Eighth Amendment. Id. This means that plaintiff’s due process claims have three elements:

• Was plaintiff subjected to a substantial risk of serious harm?
• Was each defendant aware of the risk?
• If a defendant was aware of the risk, did he or she consciously refuse to take reasonable measures to prevent plaintiff from being harmed?

Smego v. Mitchell, 723 F.3d 752, 756 (7th Cir. 2013); Fisher v. Lovejoy, 414 F.3d 659, 662 (7th Cir. 2005); Lewis v. Richards, 107 F.3d 549, 553 (7th Cir. 1997); Langston v. Peters, 100 F.3d 1235, 1238 (7th Cir 1996).

B. Failure to Screen Food

Plaintiff’s first claim is that defendants David Beth (the sheriff), Brad Heilet (a lieutenant) and Dave Lianeu (the kitchen manager) may be held liable for failing to screen his food properly. Plaintiff alleges that, on September 12, 2014, he damaged four of his teeth after biting into a rock that was in his food. Two teeth were chipped, one tooth was “split” and a gold tooth was “bent.” In addition, he alleges that there were three other incidents before September 2014 in which inmates at the jail found foreign objects in their food. One incident occurred in “July or August 2014.” Plaintiff says that he does not know what the object was, but it caused the prisoner’s gums to bleed. Plaintiff does not identify when the second incident occurred except to say that it was “prior to Sept. 12, 2014, ” and, again, he does not know what the object was. However, he says that the object “caused [the inmate’s] front tooth to be chipped in half.” With respect to the third incident, plaintiff says that an inmate found a plastic fork in his food at some time before September 12, 2014. (Plaintiff also alleges generally that it was a “common occurrence” for inmates to find “foreign objects” in their food, but the only examples he identifies are those listed above and he identifies no reason to believe that additional incidents occurred .)

I will assume that plaintiff’s allegations of harm are sufficiently serious to sustain a claim under the Constitution. However, I am dismissing this claim because the previous incidents alleged by plaintiff were not sufficient to provide jail officials notice of a substantial risk of serious harm, which is the standard for plaintiff’s claim.

To begin with, plaintiff does not allege that the plastic fork harmed the inmate who found the fork in his food and he does not explain how a plastic fork would be likely to harm an inmate. It is unlikely that an inmate would hurt his teeth on a plastic fork or swallow it. Further, a plastic fork would not likely create a sanitary concern. Although I agree with plaintiff that an inmate’s food should not include any foreign objects, the incident with the plastic fork does not provide notice of a substantial risk of serious harm. Wishon v. Gammon, 978 F.3d 446, 449 (8th Cir.1992)(no constitutional violation when prisoner did not allege that food was “prepared in a manner presenting an immediate danger to his health, or that his health suffered as a result of the food"); Lunsford v. Reynolds, 376 F.Supp. 526, 527 (W.D. Va.1974)(“The only contention concerning food which is detailed at ...


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