R. CLARKE VANDERVORT, Magistrate Judge
Pending for consideration are the following matters: (1) the State Defendant's Motion for Summary Judgment and Memorandum in Support (Document Nos. 78 and 79.); (2) Plaintiff's Response to Motion for Summary Judgment (Document No. 89.); and (3) the States Defendants' Supplement to their Motion for Summary Judgment (Document No. 104). Additionally, on January 28, 2004, Plaintiff filed a Motion to Enforce the Eighth Amendment of the United States Constitution (Document No. 99.) The undersigned construes this latter document as Plaintiff's Motion for Summary Judgment and considers it herein.
Because Plaintiff is acting pro se, the documents which he has filed in this case are held to a less stringent standard than if they were prepared by a lawyer, and therefore they are construed liberally. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
Having examined and considered the entire record and conducted a hearing upon the issues presented on this date, the undersigned finds that Plaintiff has not shown that Defendants have committed any act which deprived him of any right, privilege or immunity protected by the Constitution or laws of the United States and therefore respectfully recommends that Defendants' Motion for Summary Judgment be granted, Plaintiff's Motion to Enforce Eighth Amendment be denied and this matter be dismissed.
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
Plaintiff, an inmate designated for misconduct to the Quilliams 2 [QII] Segregation Unit at Mount Olive Correctional Complex [MOCC], filed his Complaint in this matter on June 3, 2002, initiating this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil and constitutional rights. (Document No. 1.) Essentially, Plaintiff complains that Defendants have not provided him and others in segregation at MOCC with the minimal civilized measure of food and through their failure have wantonly inflicted pain upon him and other segregated inmates. Specifically, Plaintiff claims that "[s]ince October 2000, [he] has persistently and vehemently complained about the lack of food in QII (i.e., over seventy (70) written complaints), . . . and the physical effects of the lack of food. . . ." He states that as a consequence of his complaints meals served to him were videotaped from March 15, 2001, onward. He states that he has lost 28 pounds in the 40 month period while he has been in QII, and that daily since April 15, 2002, he has experienced "severe headaches, severe hunger pangs, dizziness, an inability to sleep, an inability to exercise, and the need to lie down, not to rest but solely from a state of enervation, a state which could be likened to a drugged torpor, all from the lack of adequate food." (Document No. 1, ¶¶ 19-22.) Plaintiff complains that "[t]he response to [his] many complaints about inadequate food quantity and the physical suffering it is causing him have been uniformly indifferent." Id., ¶ 23. He contends that Defendants' conduct has constituted cruel and unusual punishment and violated his rights under the Eighth Amendment of the United States Constitution. Id., ¶¶ 1, 52-53. Second, he charges that Defendants engaged in a conspiracy to violate his constitutional rights in retaliation against him for taking action in Court over food service at MOCC in Skundor v. Blocker, et al., 5:00-0902, in violation of the First Amendment of the United States Constitution. Id., ¶¶ 54-57. Third and finally, he claims that Defendants' conduct violates his right to equal protection insofar as he and others in segregation at MOCC receive food of substantially less nutritional value than non-segregated prisoners and that his and other segregated inmates' unequal treatment is in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Id., ¶¶ 58-59. Plaintiff requests an injunction requiring Defendants to provide him and the other segregated inmates "with the minimal civilized measure of food and with reasonably equal food to that provided to . . . non-segregated MOCC prisoners", compensatory damages including nominal damages, punitive damages and costs and fees. Id., p. 16.
Plaintiff named as Defendants Beverly Gandee, Senior Inmate Grievance Coordinator for the Division of Corrections, James Rubenstein, Commissioner of the West Virginia Division of Corrections, Leslie Tyree, formerly General Counsel for the Division of Corrections, Thomas McBride, Warden of MOCC, Kathryn Lucas, Director of Contractual Services for the West Virginia Division of Corrections, and Joe Wood, formerly Commander of the Quilliams Segregation Unit at Mount Olive. These Defendants will be referred to as the State Defendants in this document. Plaintiff also named Garry Blocker as a Defendant. Mr. Blocker was the representative of, contracted to provide food service at MOCC. Mr. Blocker is no longer a party in this case.
The undersigned notes that Exhibit 4-A, attached to Plaintiff's Complaint, a G-1 Grievance Form dated October 2, 2000, is the only document among the attachments to the Complaint evidencing Plaintiff's report to Defendants of physical repercussions from his alleged inadequate diet. ("As a result, I experience hunger pangs, headaches, am unable to stay active for a regular 17-hour day, nor engage in moderate exercise without fear of severe hunger pangs and headaches.")
Indifference to complaints about prison conditions is not a cognizable basis for a § 1983 claim because inmates do not have a constitutional right to a procedure for considering such complaints. See Brown v. Dodson, 863 F. Supp. 284, 285 (W.D. Va. 1994) ("Because a state grievance procedure does not confer any substantive constitutional right upon prison inmates, prison officials' failure to comply with the state's grievance procedure is not actionable under § 1983.")
On August 26, 2002, the State Defendants filed a Motion to Dismiss pursuant to Rule 12(b)(6) and Memorandum in Support. (Document Nos. 16 and 17.) The State Defendants specified six grounds for claiming that Plaintiff's Complaint fails to state a claim for which relief can be granted. First, they contended that this case is "substantially similar" to the case of Skundor v. Blocker, et al., 5:00-0902, which is currently pending in this Court and suggested that this case should therefore be held in abeyance while the Court considers that case. (Document No. 17, pp. 5-6.) Second, Defendants contended that Plaintiff's case fails because Plaintiff asserts that the Defendants are liable on the basis of the doctrine of respondeat superior and that doctrine is inapplicable in cases of this nature. Id., p. 6. Third, Defendants claimed that Plaintiff's case fails because the State Defendants have qualified immunity from liability. Id., pp. 7-8. Fourth, Defendants stated that Plaintiff's Complaint must be dismissed because the State of West Virginia is entitled to absolute immunity under the Constitutions of the United States and West Virginia. Id., p. 8. Fifth, citing Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), Defendants claimed that Plaintiff's Complaint must be dismissed because Plaintiff complains only about their conduct in their official capacities and the State and State officials do not constitute a "person" within the meaning of § 1983. Id., p. 8. Sixth and finally, Defendants claimed that Plaintiff has not established the requisite element of deliberate indifference. They claimed that nothing in the record supports Plaintiff's claim that he suffers hunger pangs, headaches or dizziness and that though Plaintiff states that he has lost weight, medical records do not support his claim. Id., p. 8. Attaching and referring to Plaintiff's medical records, Defendants stated that between November 22, 2000, and January 31, 2002, Plaintiff's weight actually went up from 164 to 180 with only one decline of 5 pounds between November 19 and 26, 2001. Then Defendants indicated that between January 31 and February 20, 2002, Plaintiff's weight went from 180 to 165, and Plaintiff's weight remained steady at 165 until June, 2002, when he filed this lawsuit. They pointed out that Plaintiff's body mass index is high normal. Id., p. 10. Essentially, Defendants contended that Plaintiff's factual allegations indicate "his disagreement with food service and prison administration over the amount of food he receives. . . ." Id., pp. 4-5, and "his disagreement with the quantity of the diet he receives" Id., p. 10, and do not support a claim of deliberate indifference to his basic human needs.
Plaintiff, a Muslim, complained in Skundor v. Blocker, et al., 5:00-0902, a § 1983 case, that Defendants failed and refused to make changes and accommodations in his schedule for receiving meals between December 9, 1999, and January 7, 2000, when he was observing the Fast of Ramadan thereby interfering with his First Amendment right to free exercise of his religion, Islam. Plaintiff further contended that because of Defendants' conduct he had far less than the requisite daily caloric allotment during the approximately one month Fast of Ramadan of 1999. Plaintiff claimed that Defendants' conduct in failing to provide him with a nutritionally adequate quantity of food constituted cruel and unusual punishment in violation of his Eighth Amendment rights. The case was settled, and dismissal was entered in September, 2003.
The undersigned notes that the medical records attached as Exhibit A to Defendants' Memorandum in Support of their Motion to Dismiss covering only the period of time from November 8, 2001, through June 3, 2002, do not appear to reference any complaints of Plaintiff of physical repercussions from his allegedly inadequate diet.
Plaintiff filed Motions for Temporary Restraining Order on October 25 and October 28, 2002 (Document Nos. 28 and 29.). By his Motion for Temporary Restraining Order, Plaintiff sought to compel Defendants to provide him with "demonstrably nutritionally adequate food." He claimed that he is on the same regimen of meals which resulted in his loss of 15 pounds in the first part of 2002 and that it "produces intense hunger pangs, severe headache, enervation and difficulty sleeping." He stated that "[w]ithout an order from this Honorable Court I will continue to be tortured by the denial of the minimal civilized measure of food in violation of the Eighth Amendment of the United States Constitution." (Document Nos. 28 and 29, ¶¶ 4,6, 7 and 10.)
Plaintiff's Motion for Temporary Restraining Order appears to have been filed twice as Documents 28 and 29. Document Nos. 28 and 29 are identical.
On November 13, 2002, the undersigned filed Proposed Findings and Recommendation concluding that the State Defendants' asserted grounds for dismissal were without merit and recommending that the District Court deny Defendants' Motion to Dismiss. (Document No. 31.) The undersigned stated as follows:
The undersigned considered the Defendant's Motion under Rule 12(b)(6) and therefore focused upon the sufficiency of the allegations contained in Plaintiff's Complaint.
Plaintiff's Complaint states a claim for relief under § 1983 for violation of Plaintiff's Eighth Amendment right to adequately nutritional meals. Plaintiff alleges the elements necessary to prove the claim. Plaintiff alleges an ongoing deprivation of adequately nutritional meals and physical repercussions as a consequence of the deprivation. (Document No. 1, ¶¶ 19-21.) He further alleges circumstances indicating Defendants' deliberate indifference to the deprivation and the consequent physical repercussions. (Document No. 1, ¶¶ 23-33.) Construing the Plaintiff's
pro se Complaint liberally under the recognized limitations applicable in consideration of the State Defendants' Rule 12(b)(6) Motion to Dismiss and having no evidence in the form of affidavits or admissions, the undersigned finds that it does not appear beyond doubt that the Plaintiff can prove no set of facts to support his allegations. Plaintiff should have a reasonable opportunity to gather facts in support of his claims.
Id., p. 11. Respecting Defendants' claim that of entitlement to qualified immunity, the undersigned stated that "whether the State Defendants are entitled to qualified immunity must be addressed, but it is premature to consider it without further factual development. It is not a proper consideration in determining whether Plaintiff's Complaint suffices to state a claim for which relief can be granted under Rule 12(b)(6)."
Id., p. 11-12. Respecting Plaintiff's Motion for Temporary Restraining Order, the undersigned considered the factors set forth in
Black welder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 186, 196 (4th Cir. 1977), and recommended that the District Court deny Plaintiff's Motion stating as follows:
Plaintiff's Motion for Temporary Restraining Order must fail on substantive grounds. Reading the Plaintiff's Motion together with the Plaintiff's verified Complaint, it does not clearly appear from specific facts that immediate and irreparable injury, loss, or damage will result to Plaintiff if his Motion or a preliminary injunction is not granted. It is by no means clear from a careful examination of the record that there has been any inadequacy in Plaintiff's diet of a constitutional magnitude, a "sufficiently serious" deprivation, that the nutritional content of Plaintiff's meals has been significantly reduced recently thus indicating a change in the
status quo which should be corrected or that Plaintiff has or will suffer a "serious or significant physical or mental injury" or has or will suffer immediate and irreparable injury, loss or damage. Plaintiff's Motion for Temporary Restraining Order should therefore be denied.
(Document No. 31, p. 13.) Plaintiff filed Rule 72 Objections to Magistrate Judge's Recommendation to Deny Temporary Restraining Order or Preliminary Injunction on November 26, 2002. (Document No. 32.) In view of Plaintiff's Objections, the District Court adopted the undersigned's findings and recommendations and renewed its referral of the case to the undersigned by Order filed on December 11, 2002. (Document No. 33.)
On December 26, 2002, Plaintiff filed a Motion for Preliminary Injunction. (Document No. 35.) Plaintiff stated that he "is seeking a preliminary injunction ordering Defendant Thomas McBride, Warden, in his official capacity pursuant to Fed.R.Civ.P. 25(d)(1), to provide nutritionally adequate food to Plaintiff." Id., p. 2. Plaintiff claimed that his "basic nutritional needs are not being met", he "repeatedly informed MOCC officials that he experiences severe hunger pangs, headaches, and weight loss from the lack of food" and "MOCC officials refuse to take any action because of the pending lawsuit. . . ." Id., p. 3. Thus, he claimed that he would suffer irreparable harm if a preliminary injunction was not granted. Id., p. 5. "[H]arm to Defendant McBride . . . is nonexistent. * * * The public interest is also served by enforcing the food service contract since that is what the public pays for." Id., p. 6. Plaintiff contended that Defendants improperly contend that Plaintiff is receiving nutritionally adequate food on the basis of his normal body mass index. Essentially, Plaintiff argued that body mass index is no indication of the nutritional adequacy of his diet. Id., pp. 5-6.) Plaintiff attached his Declaration and Exhibits in support of his Application.
Defendants filed a Response to Preliminary Injunction on January 29, 2003. (Document No. 37.) Defendants stated that Plaintiff's entitlement to injunctive relief was decided when the Court considered his Motion for Temporary Restraining Order.Id., p. 2. Defendants point out that "there have been no new facts and no new discovery undertaken that would change the instant case." Id., p. 3. They attached the Declaration of Richard Slade, M.D., a physician who contracts with Correctional Medical Services. Id., Exhibit A. Dr. Slade stated based upon his observation and evaluation of Plaintiff that "I have observed nothing which would lead me to conclude that he is malnourished." Id., ¶ 6.
Plaintiff filed a Reply to the Defendants' Response to his Application on February 3, 2003. (Document No. 39.) He restated his claim that he is receiving a nutritionally inadequate diet and that the inadequacy constitutes cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution. Plaintiff contended that Dr. Slade's Declaration should be rejected because Dr. Slade did not indicate how he is qualified to assess whether Plaintiff looks malnourished and did not state facts which lead him to the conclusion that Plaintiff does not. Id., p. 2. Further, Plaintiff claimed essentially that whether or not he looks malnourished is no indication that "the Food Service Director . . . is serving Plaintiff dietician-certified nutritionally adequate meals. . . ." Id., p. 3.
On February 7, 2003, Defendant Blocker filed a Motion to Dismiss, a Memorandum in Support and Affidavit, claiming that he was not properly served, and Plaintiff filed a Motion to Dismiss Defendant Gary Blocker for the same reason. (Document Nos. 40, 41, 42 and 43.) On April 1, 2003, the undersigned filed Proposed Findings and Recommendation that the District Court grant Plaintiff's and Mr. Blocker's Motions (Document No. 51.) By Order filed on April 23, 2003, the District Court adopted the undersigned's Proposed Findings and Recommendation and granted the Motions to Dismiss Mr. Blocker. (Document Nos. 55 and 56.)
On April 24, 2003, the Court entered an Order modifying its schedule for proceedings in this case to allow for discovery through June 30, 2003, and require the filing of Motions for Summary Judgment by July 21, 2003. (Document No. 57.) Plaintiff began discovery by written Interrogatories and Requests for Production of Documents. (Document Nos. 52, 59, 60, 76.) and it is apparent from the Court's docket sheet that the State Defendants submitted Answers to all of Plaintiff's written discovery except his Fourth Request for Production of Documents (Document No. 76.) indicating service on July 9, 2003, after the period allowed for discovery. (Document Nos. 61-67, 70-74.) Defendants took Plaintiff's deposition on May 23, 2003. (Document No. 58.)
Plaintiff was 42 years old at the time his deposition was taken. See Plaintiff's deposition, p. 3.
On August 11, 2003, the undersigned filed Proposed Findings and Recommendation that Plaintiff Motion for Preliminary Injunction be denied. (Document No. 83.) The undersigned stated as follows:
Considering Plaintiff's Motion for Preliminary Injunction in view of the factors set forth in
Black welder Furniture Co. v. Seilig Mfg. Co.,
550 F.2d 189, 196 (4th Cir. 1977), and the "sufficiently serious" clement which Plaintiff must prove objectively to prevail upon his claimed Eighth Amendment violation according to
Wilson v. Seiter,
501 U.S. 294, 297-99,
111 S.Ct. 2321, 2323-2325,
115 L.Ed.2d 271 (1991), it is clear, as it was in consideration of Plaintiff's Motion for Temporary Restraining
Order, that Plaintiff's Motion for Preliminary Injunction must be denied. Plaintiff has failed to produce specific facts indicating that immediate and irreparable injury, loss, or damage will result to Plaintiff if his Application for Preliminary Injunction is not granted. It is not evident that the nutritional content of Plaintiff's meals has been reduced thus indicating a change in the
status quo which should be corrected or that Plaintiff has or will suffer a "serious or significant physical or mental injury" or has or will suffer immediate and irreparable injury, loss or damage if a preliminary injunction is not issued. To the contrary, it is evident from the Affidavit of Dr. Slade that Plaintiff's diet provides adequate nourishment. Again, the undersigned finds that it is certainly not clear from the record that there has been inadequacy in Plaintiff's diet amounting to a "sufficiently serious" deprivation to sustain his claim under the Eighth Amendment.
See
White v. Gregory,
1 F.3d 267, 269 (4th Cir. 1993),
cert. denied,
510 U.S. 1096,
114 S.Ct. 931,
127 L.Ed.2d 223 (1994) (Chief Judge Haden's summary dismissal of inmate's claim under the Eighth Amendment affirmed where inmate claimed that he only received two meals a day on weekends and holidays and admitted that he received three meals a day on weekdays and did not claim any deleterious physical or mental effects from the meal schedule.);
Strickler v. Waters,
989 F.2d 1375, 1381 (4th Cir. 1993),
cert. denied,
510 U.S. 949,
114 S.Ct. 393,
126 L.Ed.2d 341 (1993).
(Id., pp. 12-13.) Over Plaintiff's objections, the District Court accepted the undersigned's recommendation and denied Plaintiff Motion by Order entered on August 27, 2003. (Document No. 85.) Defendants' Motion for Summary Judgment.
Plaintiff submitted his Declaration dated August 22, 2003, in support of his objections (Document No. 84, Exhibit A.) stating as follows:
33. I am not complaining that I am starving to death. I am complaining that I am unable to remain active throughout the day; I cannot exercise; I have headaches every day of every week for the last few years and they are getting worse; I have intense hunger pangs every day, all day, of every week for the last few years and they are getting worse, some nights I cannot sleep because of hunger; I am hungry after eating and am listless all day. I believe such treatment lasting day in and day out with no end in sight is torture, albeit of a low-grade type.
* * *
35. I believe that the continuous and increasing pain of hunger, and its effects on my sleep, are seriously affecting my mental capabilities.
Protesting inadequate food, Plaintiff went on a hunger strike from March 24 through May 18, 2003. See Plaintiff's Declaration, ¶ 26, attached as Exhibit 16 to his Response to Defendants' Motion for Summary Judgment (Document No. 89.). Plaintiff testified that he lost 36 pounds during his hunger strike. See Plaintiff's deposition, pp. 42-43. Plaintiff's chart indicates therefore that he weighed 178 on April 3, 2003, and 154 on May 5, 2003. See Plaintiff's Response to Defendant's Motion for Summary Judgment, Exhibit 16, ¶ 22. He indicates that on September 23, 2003, he weighed 155. Id. Plaintiff was therefore continuing to suffer the effects of his self-deprivation when he prepared his August 22, 2003, Declaration.
On July 14, 2003, the State Defendants filed a Motion for Summary judgment and Memorandum in Support. (Document Nos. 78 and 79.) Defendants claim that Plaintiff's Eighth Amendment claim has no merit because Plaintiff "is provided more food than he asserts. The menu is prepared by a registered dietician and is designed to provide a nutritionally and calorically sound diet. The food service staff also provide the specified meals. Thus the meal service is constitutionally sound." (Document No. 79, p. 6.) The Defendants further assert that Plaintiff has not suffered any physical injury or objective harm as a result of his diet. (Id., pp, 6, 7.) Second, Defendants contend that Plaintiff can state no claim against them for their failure to respond to his grievances because Plaintiff has no constitutional right in the first place to a grievance procedure. (Id., pp. 8-9.) Third, Defendants claim that once the Court finds that Plaintiff's claims that they failed to respond to his grievances have no constitutional basis, Plaintiff's remaining claims against them cannot succeed because they were supervisors of food service and were not directly involved in it. Defendants therefore assert that Plaintiff's claims fail because the doctrine of respondeat superior has no application in § 1983 cases and there is no evidence upon which they can be found liable as supervisors. (Id., pp. 10-11.) Fourth, Defendants submit that they are entitled to qualified immunity. (Id., pp. 11-12.) Finally, Defendants contend that Plaintiff's claimed entitlement to damages is barred by 42 U.S.C. § 1997e(e) because he has and can show no actual physical injury. (Id., pp. 12-14.)
42 U.S.C. § 1997e(e) provides that "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." Headaches do not constitute a sufficient physical injury under 1997e(e) to permit a recovery for mental and emotional injury. Cain v. Commonwealth of Va., 982 F. Supp. 1132, 1135, fn. 3 (E.D.Va. 1997).
In support of their claim of entitlement to summary judgment, Defendants attach a copy of the transcript of Plaintiff's May 23, 2003, deposition to their Memorandum in Support of their Motion for Summary Judgment. Defendants point out that Plaintiff testified that the daily caloric content of meals receives fluctuates between two thousand and four thousand calories with the average being about two thousand seven hundred. (Document No. 79, p. 3, and Plaintiff's deposition, pp. 35-36.) They further point out that Plaintiff acknowledges that, though he has indicated that he has suffered hunger pains, headaches and other symptoms as a consequence of inadequate food, he has not seen a doctor about it and has therefore not been found medically to be suffering from the effects of inadequate food. (Id., Plaintiff's deposition, pp. 13, 36.) They note that Plaintiff testified that he went on a hunger strike several weeks before trial was scheduled in Skundor v. Blocker, 5:00-0902. (Id., Plaintiff's deposition, pp. 41-43.) Other documents indicate that Plaintiff refused meals in late march and early April, 2003. (Id., Exhibit H, See Incident Reports.)
Defendants also submit the Affidavit of Dorothy Zimmer and the Declarations of Defendant Kathryn Lucas, Michael Coleman, Defendant Joe Wood, Defendant Beverly Gandee, and Richard Slade, M.D. Ms. Zimmer, a certified Registered Dietician and Director of Menu Program Department for Aramark Correctional Services, Inc., food service provider at Mount Olive Correctional Complex since 1997, addresses Plaintiff's claim that he is served constitutionally inadequate food in her March 19, 2003, Affidavit (Document No. 79, Exhibit B.) stating that she is "responsible for the nutritional quality of Aramark's menu programs including the menus for all of the prisoners at MOCC, including those housed in Quilliams I and II, in accordance with the contractual agreement between Aramark and MOCC[.]" (Id., ¶ 4.) She states respecting the nutritional quality of food served to Plaintiff and others in segregation at Mount Olive as follows:
5. In accordance with the terms of the aforementioned contract, Aramark provides three (3) meals per day prepared from four (4) weekly menus that meet the nutritional and caloric requirements established by the American Dietetic Association and the menu standards of the American Corrections Association;
6. The menus for MOCC provide a weekly average that far exceeds an average 3200 calories per day, a level that far surpasses typical energy requirements;
7. The menu also complies with the Recommended Dietary Allowances and the Dietary Reference Intakes for males and females 19 to 60 years as established by the Food and Nutrition Board of the Institute of Medicine;
8. Per MOCC policy, prisoners housed in Quilliams I and II are served meals in their housing areas and do not have access to the self-service bar located in the prison cafeteria;
9. The items offered on the self-service bar are indicated on the menu along with a designated portion for preplated service of the same items to lockdown prisoners as housed in Quilliams I and II; and
10. The nutritional analysis of the menu is based on the portions as indicated for lockdown prisoners which meet nutritional and caloric requirements as stated above.
(Id.) Defendant Lucas, Director of Contractual Services for the West Virginia Division of Corrections, addresses Plaintiff's claims of inadequate food and failure to respond to his many grievances in her July 11, 2002, Declaration as follows:
5. That as an inmate on the segregation unit, inmate Skundor is fed three meals per day which are provided on institutional feeding trays filled in the prison kitchen and delivered three times per day by staff.
6. That these meal trays are filled by inmate workers in the kitchen and
delivered to the segregation unit where they are distributed by correctional officers.
7. That I have also monitored food service operations from time to time as have other executive staff at Mount Olive Correctional Complex.
8. That in the course of so monitoring food service operations, I have at no time observed any material defect with respect to the amount of food or quality of food provided to segregated inmates during the normal feeding hours.
9. That at no time have I observed inmate Skundor be deprived of life's necessities on account of a failure of the food service department.
10. That with respect to certain administrative grievances it was the belief of staff that inmate Skundor had already proceeded to litigation regarding the matters involving food service.
11. That when an inmate institutes suit on an issue, unless exceptional circumstances exist, the issue is no longer addressed administratively as the matter has been before a Court and such responses risk inconsistent positions and outcomes and do not conserve governmental resources.
(Id., Exhibit C.) Mr. Coleman, Deputy Warden of Mount Olive, addresses Plaintiff's allegations of inadequate food and failure to respond to his complaints in his July 11, 2003, Declaration, indicating that he too inspected food service from time to time and "I have not observed anything which would lead me to conclude that an inmate was not receiving adequate nutrition." (Id., Exhibit D, ¶ 11.) Mr. Coleman stated further as follows: "That I have observed inmate Skundor deprive himself of food by engaging in a hunger strike immediately prior to what he believed would be a late May, 2003, trial." (Id., ¶ 13.) Likewise, Defendant Joe Woods, formerly Commander of the Quilliams Segregation Unit at Mount Olive, states in his July 7, 2003, Declaration, as follows:
6. That inmate Skundor had presented to me certain concers regarding food service at the said correctional facility.
* * *
9. That with respect to inmate Skundor, as commander of Quilliams II
Segregation Unit, I was aware, that while inmate Skundor was dissatisfied with his meal service, he was also being adequately provided with food.
10. That at no time did I ever believe that inmate Skundor was not being provided with sufficient nutrition to sustain normal activity, let alone, sedentary activity for 23 hours per day, which is the normal routine for an inmate in segregation.
(Id., Exhibit E.) Defendant Gandee, Senior Inmate Grievance Coordinator for the Division of Corrections, addresses Plaintiff's claim that the Defendants failed to respond to his grievances and complaints in her July 8, 2003, Declaration stating that she responded to Plaintiff's complaints in accordance with her training by advising that the Department of Corrections could not address the issue of inadequate food because litigation was pending." She further states in response to Plaintiff's claim of retaliation for his filing of this lawsuit that "I had no prior knowledge of the plaintiff prior to my contact with him in the grievance process." and that "my response to him was not motivated by any desire to retaliate for pending litigation but was the product of believing that inmate Skundor then had the issue before the Courts. (Id., Exhibit F, ¶¶ 13 and 14.) Defendants further attach the January 27, 2003, Declaration of Richard Slade, M.D., a physician who contracts with Correctional Medical Services. (Id., Exhibit G.) Dr. Slade states based upon his observation and evaluation of Plaintiff that "I have observed nothing which would lead me to conclude that he is malnourished." (Id., ¶ 6.)
Plaintiff's Response.
On October 15, 2003, Plaintiff filed a Response to Defendants' Motion for Summary Judgment. (Document No. 89.) With respect to his Eighth Amendment claim, Plaintiff states that "Plaintiff's weight fluctuations are affirmative, objective evidence that support his claims of hunger pangs, headaches, dizziness, enervation, and muscle atrophy." (Id., p. 11.) Plaintiff cites as evidence his summary and graph of his weight fluctuations from November, 1998, through September, 2003, in his Declaration (Id., p. 12 and Exhibit 16, ¶¶ 22 and 23.) Plaintiff claims in response to Defendant's assertion that he has suffered no physical injury that he has suffered hunger pangs, headaches, enervation, muscle atrophy and weight loss. (Id., p. 13.) Plaintiff then addresses the nutritional adequacy of his meals from the standpoint of caloric content. (Id., pp. 14-19.) He acknowledges that the Defendant's four week cycle menu is nutritionally adequate because "[i]t provides an average of 3792 calories a day[.]" (Id., p. 14.) He claims that his meals average 2,560 calories a day. (Id., p. 15.) He distinguishes cases cited by Defendants which suggest that 2,000 calories a day is adequate indicated that the deprivation of food was for a relatively short period of time "[w]hereas Plaintiff's diet is long term." (Id., p. 17.) Thus, Plaintiff contends that there is sufficient evidence that the caloric content of his diet is deficient. Finally, Plaintiff asserts that there is ample evidence that Defendants failure to act upon his grievances on grounds that he had filed a lawsuit amounted to deliberate indifference to his nutritional needs. (Id., pp. 19-23.) Plaintiff further takes issue with the statements of those who submitted the Declarations attached to Defendants' Memorandum and quoted above that they audited the food service at MOCC stating that "[i]t may be that Defendants McBride and Coleman have perjured themselves." (Id., at 22.) Plaintiff bases his accusation upon the testimony of Mr. Tim Whittington, Associate Warden of Operations, who is assigned to assure compliance with the food service contract, that he had no knowledge that anyone audited menu compliance of the food service contractor (Id., p. 21.) and Defendant offers no actual evidence to prove that food service was audited.
It is evident that Plaintiff has resided in punitive segregation since November, 1998. See Plaintiff's Prison Record attached as Exhibit A to Defendants' Memorandum in Support of Motion for Summary Judgment (Document No. 79.). Plaintiff states that he was able to supplement his diet through commissary food purchases and Christmas packages between late December, 2000, and February, 2002. See Plaintiff's Declaration, ¶ 24, attached as Exhibit 16 to his Response to Defendants' Motion for Summary Judgment (Document No. 89.) According to Plaintiff's chart, his weight went from 164 to 180 during this period. Id., ¶ 22. His weight remained steady at 165 from February 20 through June 3, 2002. Id. Plaintiff states that he was in mainline population from August 13 to October 18, 2002, and received adequate food. Id., ¶ 25. Then back in segregation after October 18, 2002, he weighed 188 on January 20, 2003, three months later, and 190 on February 10, 2003, almost four months after he returned to the segregation unit. Id. He went on a hunger strike from March 24 through May 18, 2003, Id., ¶ 26. Plaintiff testified that he lost 36 pounds during his hunger strike. See Plaintiff's deposition, pp. 42-43. Claimant's chart indicates therefore that he weighed 178 on April 3, 2003, and 154 on May 5, 2003. See Plaintiff's Response to Defendant's Motion for Summary Judgment, Exhibit 16, ¶ 22. He indicates that on September 23, 2003, he weighed 155. Id.
Next, consistently with the claims he stated in his Complaint, Plaintiff launches into a discussion of evidence supporting his claim that Defendants engaged in a conspiracy to retaliate against him for his filing of Skundor v. Blocker. (Document No. 89, p. 24.) Plaintiff asserts that Defendants' refusal to investigate his complaints of inadequate diet was motivated by his filing of a lawsuit and intended to chill Plaintiff's exercise of his right to access to the Courts. (Id., p. 24-39.)
Finally, Plaintiff claims that he was denied equal protection because, as a segregated prisoner, he is served smaller portions than mainline prisoners receive. Plaintiff indicates that it is evident that he receives smaller portions than mainline inmates because he suffers adverse effects from them. (Id., p. 39-44.) On January 28, 2004, Plaintiff filed a Motion to Enforce the Eighth Amendment of the United States Constitution (Document No. 99.). Plaintiff states that "Defendants have not produced any affirmative evidence of the nutritional adequacy of Plaintiff'smeals. They have not testified that the dietician-certified prison menu is actually served." (Id., ¶ 4.) He states further that "Plaintiff has presented evidence that his meals do not follow the dietician-certified prison menu, . . . and that his diet is so inadequate that he experiences pain on a daily basis. . . ." (Id., ¶ 6.) He requests that the Court enforce the Eighth Amendment by requiring the Defendants to provide him a constitutionally adequate diet.
THE SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate under Federal Rule of Civil Procedure 56 when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Once the moving party demonstrates the lack of evidence to support the non-moving party's claims, the non-moving party must go beyond the pleadings and make a sufficient showing of facts presenting a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). All inferences must be drawn from the underlying facts in the light most favorable to the non-moving party. Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. Summary judgment is required when a party fails to make a showing sufficient to establish an essential element of a claim, even if there are genuine factual issues proving other elements of the claim. Celotex, 477 U.S. 322-23, 106 S.Ct. 2552-53. Generally speaking, therefore, summary judgment will be granted unless a reasonable jury could return a verdict for the non-moving party on the evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
DISCUSSION
Eighth Amendment
"[F]ederal courts must take cognizance of the valid constitutional claims of prison inmates." Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987). Generally speaking, to prevail upon a claim under 42 U.S.C. § 1983, a Plaintiff must prove that (1) a person acting under color of State law (2) committed an act which deprived him of an alleged right, privilege or immunity protected by the Constitution or laws of the United States.
The Eighth Amendment protects against the infliction of "cruel and unusual punishments." As a general matter, prohibited punishments include those which "involve the unnecessary and wanton infliction of pain." Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976) ( quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976)). "It not only outlaws excessive sentences but also protects inmates from inhumane treatment and conditions while imprisoned." Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). Thus under the Eighth Amendment, sentenced prisoners are entitled to "adequate food, clothing, shelter, sanitation, medical care and personal safety." Wolfish v. Levi, 573 F.2d 118, 125 (2d Cir. 1978), rev'd on other grounds, Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). See also Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994) (Supreme Court noted that Eighth Amendment imposes certain duties upon prison officials to "ensure that inmates receive adequate food, clothing, shelter and medical care, and must `take reasonable measures to guarantee the safety of the inmates.'"), quoting Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984));Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981) (Court held that only those conditions depriving inmates of "the minimal civilized measure of life's necessities" are sufficiently grave to form the basis of an Eighth Amendment violation); The Eighth Amendment "does not mandate comfortable prisons." Rhodes v. Chapman, 452 U.S. at 349, 101 S.Ct. at 2400. "To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society." Id. at 347, 101 S.Ct. at 2399; Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995), citing Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992); Lopez v. Robinson, 914 F.2d 486, 490 (4th Cir. 1990). Sentenced prisoners are therefore constitutionally guaranteed a nutritionally adequate diet under the Eighth Amendment.
To establish a violation of the Eighth Amendment in the context of a challenge to conditions of confinement, an inmate must allege (1) a "sufficiently serious" deprivation under an objective standard and (2) that prison officials acted with "deliberate indifference" to the inmate's health and safety under a subjective standard. Wilson v. Seiter, 501 U.S. 294, 297-99, 111 S.Ct. 2321, 2323-2325, 115 L.Ed.2d 271 (1991). A sufficiently serious deprivation occurs when "a prison official's act or omission . . . result[s] in the denial of the minimal civilized measure of life's necessities.'" Id. at 298, 111 S.Ct. 2321 ( citing Rhodes v. Chapman, 452 U.S. at 347, 101 S.Ct. 2392). "In order to establish the imposition of cruel and unusual punishment, a prisoner must prove two elements — that `the deprivation of [a] basic human need was objectively sufficiently serious,' and that `subjectively the officials act[ed] with a sufficiently culpable state of mind.'" Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995) ( quoting Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993) (quotation omitted)). See also White v. Gregory, 1 F.3d 267, 269 (4th Cir. 1991) ("In Strickler, we held that a prisoner must suffer `serious or significant physical or mental injury' in order to be `subjected to cruel and unusual punishment within the meaning of the' Eighth Amendment.") The touchstone is the health of the inmate. Prison administrators may place inmates in punitive segregation, but, in holding them there, they may not create circumstances which threaten their physical and mental health.Hutto v. Finney, 437 U.S. 678,685-87, 98 S.Ct. 2565, 2570-71, 57 L.Ed.2d 522 (1978). Plaintiff in this case must therefore allege in the first place and eventually establish a "sufficiently serious" deprivation of a nutritionally adequate diet and resulting "serious or significant physical or mental injury" in order to maintain and prevail upon his Eighth Amendment claim. In Landman v. Royster, 333 F. Supp. 621, 647 (E.D.Va. 1971), Judge Mehrige, finding a bread and water diet unconstitutional, discussed the effects of a constitutionally inadequate diet as follows:
Bread and water provides a daily intake of only 700 calories, whereas sedentary men on the average need 2000 calories or more to maintain continued health. Evidence is not present on the other nutritional shortcomings of a bread and water diet, but it does no violence to the doctrine of judicial notice to remark that vitamin, protein and mineral content is probably deficient as well. The purpose and intended effect of such a diet is to discipline a recalcitrant by debilitating him physically. Without food, his strength and mental alertness begin to decline immediately. It is a telling reminder too that prison authorities enjoy complete control over all sources of pleasure, comfort, and basic needs. Moreover, the pains of hunger constitute a dull, prolonged sort of corporal punishment. That marked physical effects ensue is evident from the numerous instances of substantial weight loss during solitary confinement.
Not all deprivations are deemed sufficiently serious to survive a motion to dismiss. Islam v. Jackson, 782 F. Supp. 1111 (E.D.Va. 1992). As stated above, Plaintiff must allege and establish that he has suffered a "serious medical and emotional deterioration attributable to" the alleged deprivation. Id. at 1114 ( citing Lopez v. Robinson, 914 F.2d 486, 490 (4th Cir. 1990) ( quoting Shrader v. White, 761 F.2d 975, 979 (4th Cir. 1985)). See also Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996); White v. Gregory, 1 F.3d 267, 269 (4th Cir. 1993) (Chief Judge Haden's summary dismissal of inmate's claim under the Eighth Amendment affirmed where inmate claimed that he only received two meals a day on weekends and holidays and admitted that he received three meals a day on weekdays and did not claim any deleterious physical or mental effects from the meal schedule.) Cf. Cunningham v. Jones, 567 F.2d 653 (6th Cir. 1977) (District Court's decision vacated and case remanded where evidence established a substantial deprivation of jail food in the serving of only one meal when three meals were normally served for the District Court's consideration of whether the one meal was sufficient to maintain normal health.); Phelps v. Kapnolus, 2002 WL 31318963 (2nd Cir. (N.Y.)) (Dismissal of inmate's Complaint alleging Eighth Amendment violation for failure to provide adequately nutritional meals for a two week period of time reversed because it did not appear beyond doubt that Plaintiff could prove no set of facts in support of his claim.)
To establish the subjective component of deliberate indifference, an inmate must allege and prove each defendant's consciousness of the risk of harm to the inmate. See Farmer, supra, 511 U.S. at 840, 114 S.Ct. at 1980. In particular an inmate must establish that the prison official "knows of and disregards an excessive risk to inmate health and safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, supra, 511 U.S. at 837, 114 S.Ct. at 1979. Plaintiff in this case must therefore allege and establish each Defendant's awareness that he was receiving a nutritionally inadequate diet and disregard for the serious physical and mental consequences.
"[I]n order to withstand summary judgment on an Eighth Amendment challenge to prison conditions a plaintiff must produce evidence of a serious or significant physical or emotional injury resulting from the challenged condition. The Eighth Amendment does not prohibit cruel and unusual prison conditions; it prohibits cruel and unusual punishments. If a prisoner has not suffered serious or significant physical or mental injury as a result of the challenged condition, he simply has not been subjected to cruel and unusual punishment within the meaning of the Amendment." Strickler v. Waters, 989 F.2d 1375, 1380-81 (4th Cir. 1993), cert. denied, 510 U.S. 949, 114 S.Ct. 393, 126 L.Ed.2d 341 (1993). In view of this standard, if no facts or inferences which can be drawn from the circumstances will support Plaintiff's Eighth Amendment claim viewing the evidence in a light favorable to Plaintiff, summary judgment is appropriate. If it is evident that there are genuine issues of material fact respecting the alleged infringement upon Plaintiff's Eighth Amendment right, summary judgment must be refused.
Having carefully considered all of the evidence in the record, the undersigned finds that Plaintiff has not demonstrated that (1) he has suffered serious or significant physical or mental injury as a consequence of a nutritionally inadequate diet; (2) his diet is so nutritionally inadequate that he has suffered a "sufficiently serious" deprivation under the Eighth Amendment; and (3) the Defendants have acted with deliberate indifference to his physical and mental health.
In the category of physical injury, Plaintiff complains of "severe headaches, severe hunger pangs, dizziness, an inability to sleep, an inability to exercise, and the need to lie down, not to rest but solely from a state of enervation, a state which could be likened to a drugged torpor, all from the lack of adequate food." He further complains that he has lost weight as a consequence of his nutritionally inadequate diet. None of Plaintiff's complaints have been confirmed or diagnosed medically. In fact, Plaintiff testified that he has not talked to a doctor about his headaches or the other alleged symptoms deriving from his lack of adequate food. When asked whether the doctor ever indicated that he needed additional nutrition, Plaintiff testified "No. He thinks I'm fine because of my body mass index." Then Plaintiff testified that in March, 2002, he told the doctor that he was hungry all the time and the doctor sent a memo to the warden that he was fine. (Plaintiff's deposition, p. 13-15.) Fluctuations in Plaintiff's weight do not amount to any indication that his diet was inadequate. Indeed, it is evident that Plaintiff maintained a steady weight for months at a time on the diet he was served. According to his Declaration, he was steady at 165 from February 20 through June 3, 2002. Then back in segregation after October 18, 2002, he weighed 188 on January 20, 2003, three months later, and 190 on February 10, 2003, almost four months after he returned to the segregation unit. Additionally, the undersigned notes that Dr. Slade indicated in his January 27, 2003, Declaration that Plaintiff's diet provided adequate nourishment. It is simply not evident at all from the record that Plaintiff has suffered any health problems as a consequence of a lack of nutritional food. Plaintiff has therefore failed to produce and cannot produce any evidence of a serious or significant physical or emotional injury resulting from his allegedly inadequate diet; ergo, based on the Fourth Circuit's standard stated inStrickler v. Waters, supra, he has not been subject to cruel and unusual punishment within the meaning of the Eighth Amendment. On this reasoning alone, therefore, Defendants' Motion for Summary Judgment should be granted.
The undersigned further finds that Plaintiff has failed to demonstrate that his diet is so nutritionally inadequate that he has suffered a "sufficiently serious" deprivation under the Eighth Amendment. It is clear from documents which Plaintiff has submitted in this case that he has received adequate food. Exhibit 18 attached to Plaintiff's Response to Defendants' Motion for Summary Judgment (Document 89.) is Plaintiff's listing of every food item served at every meal which he has received over a considerable period of time and a tally of the caloric content. Exhibit 20 is Plaintiff's listing of the daily and average calories of the meals he received. It is undisputed that Plaintiff has received three meals a day having an average caloric content of over 2,800. Under these circumstances, Plaintiff cannot meet the objective component of the Eighth Amendment analysis. It therefore follows logically that Plaintiff cannot meet the subjective component of the analysis either. Because there is no evidence that Plaintiff has suffered deterioration in his health as would certainly be expected if his diet were constitutionally inadequate, there is and can be no evidence that Defendants acted with deliberate indifference, i.e., were aware that Plaintiff was receiving a nutritionally inadequate diet and disregarded the serious physical and mental consequences of it. Having examined the entire record, the undersigned finds, contrary to Plaintiff's assertions, that Defendants were reasonably attentive to his complaints and circumstances. Plaintiff simply cannot be found to have sustained a deprivation under the Eighth Amendment under these circumstances. Retaliation
To sustain a claim of retaliation, a plaintiff "must allege either that the retaliatory act was taken in response to the exercise of a constitutionally protected right or that the act itself violated such a right." Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994), cert. denied, 514 U.S. 1022, 115 S.Ct. 1371, 131 L.Ed.2d 227 (1995). The Fourth Circuit has indicated that retaliation claims of prisoners should be treated with skepticism. Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir 1996); Adams v. Rice, 40 F.3d at 74. To survive Defendant's Motion for Summary Judgment, Plaintiff must therefore adduce significant probative evidence that "each retaliatory act violate[d] some constitutional right . . . or constitute[d] punishment for the exercise of a constitutional right." Cochran v. Morris, 73 F.3d at 1318 citing Adams v. Rice, 40 F.3d at 75. Plaintiff must also demonstrate that he suffered some adverse impact beyond de minimis inconvenience as a consequence of the retaliatory act. Mt. Healthy City Sch. Dist. Bd. Of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977);ACLU v. Wicomico County, 999 F.2d 780, 785-86 (4th Cir. 1994); Huang v. Board of Governors, 902 F.2d 1134, 1140 (4th Cir 1990).
Plaintiff has failed to produce any evidence in proof of his assertion that Defendants refused to investigate his complaints of inadequate diet because he filed a lawsuit intending to chill Plaintiff's exercise of his right to access to the Courts. Plaintiff filed grievances respecting food service at MOCC, appealed and received responses more than a year before he filed his Complaint in this case (June 3, 2002). See Plaintiff's Response to Motion for Summary Judgment, Exhibits 32 and 33. Immediately after Plaintiff filed his Complaint, he filed further grievances and received responses. (Id., Exhibits 30 and 31.) Plaintiff was informed that "[i]t is the position of the Commissioner of the Division of Corrections that all issues you are grieving are currently before the United States District Court . . . and the Commissioner will await the outcome of that litigation and subsequent direction by the judge." (Id., Exhibit 31D.) Thereafter and while this action has been pending, Plaintiff filed additional grievances and received further responses. (Id., Exhibits 23 through 29.) It appears that Plaintiff also sent many disdainful demands for food to staff members. See Defendants' Memorandum in Support of Motion for Summary Judgment, Exhibit H. It appears that the most recent response Plaintiff has received to his many grievances and profane demands is the August 6, 2003, memorandum from Defendant Rubenstein, a copy of which is attached as Exhibit 11 to Plaintiff's Supplemental Complaint (Document No. 90.). In considering Plaintiff's appeal of one of his grievances, Defendant Rubenstein writes "[t]he Division of Corrections will not debate specific caloric counts with its inmates. This inmate has been housed within the Mount Olive Correctional Complex for several years and has yet to be diagnosed as suffering from malnutrition. The food served to him is constitutionally sufficient."
The undersigned notes that Plaintiff wrote a letter to Warden McBride on March 24, 2003, the day he began his hunger strike, stating that "I haven't been able to do any work for three weeks because I'm too . . . hungry all the time, I refuse to live like this. . . . If you are not going to provide me with adequate food for normal daily activity, including some exercise, I will not cat anything until you do so." See Defendant's Memorandum in Support of Motion for Summary Judgment, Exhibit H. The Court's records reveal however that in March, 2003, Plaintiff was represented by attorney Roger Forman and discovery was ongoing in 5:00-0902 in anticipation of trial. On March 17, 2003, Plaintiff filed a Reply to Defendants' Response to his Motion for Judgment on the Pleadings in 5:02-0205 (Document No. 52 therein.) On March 6, 2003, Plaintiff filed a Motion for Appointment of Counsel or for an Order to Provide Adequate Food in this case (Document No. 46.) Furthermore by his own account, Plaintiff's weight was 178 on April 3, 2003, ten days into his hunger strike. See Plaintiff's Response to Defendants' Motion for Summary Judgment, Exhibit 16, ¶ 22.
The undersigned finds that Plaintiff has produced no probative evidence in support of his claim of retaliation. The Defendants clearly responded properly to Plaintiff's many grievances and demands before and after he filed his lawsuits. There is simply no evidence that Defendants retaliated against Plaintiff because he filed his lawsuits by refusing to investigate his complaints. Indeed, the evidence tends to indicate the contrary. It is evident from Defendant Rubenstein's August 6, 2003, Memorandum to Plaintiff that the Defendant's had monitored Plaintiff's health for signs that he was suffering from the effects of malnourishment. The undersigned finds that in doing so, Defendants paid sufficient attention to Plaintiff's complaints. As long as Plaintiff was well nourished, it was not necessary for the Defendants to devote time and resources to any extensive qualitative and quantitative assessment of Plaintiff's diet. Plaintiff's claim that Defendants retaliated against him for exercising his right to file lawsuits is therefore completely without merit.
Equal Protection
The Equal Protection Clause of the Fourteenth Amendment provides that "all persons similarly situated should be treated alike." Inmates in disciplinary segregation and inmates in general population are not similarly situated. See Boyd v. Anderson, 265 F. Supp.2d 952, 966 (N.D.Ind. 2003). They are two separate classifications of inmates, and no requirement that they be treated alike arises under the Constitution. Plaintiff's claim that his right to equal protection has been violated is therefore legally unsound. Furthermore, there is no evidence at all in the record supporting Plaintiff's claim that segregated prisoners receive a different diet than inmates in the general prison population.
Qualified Immunity
Plaintiff has sued all of the State Defendants in their personal capacities, not in their official capacities, except Defendant Coleman. He has sued Defendant Coleman in his official and personal capacities. (Document No. 1, ¶¶ 7-13.) Defendants appropriately raised qualified immunity as a defense against the charges contained in Plaintiff's Complaint. Underlying consideration for the validity of a qualified immunity defense is a policy favoring early resolution. Qualified immunity is generally deemed sufficient to permit public officials to do their work without a meaningful threat of suit. See Scheuer v. Rhodes, 416 U.S. 232, 247-48, 94 S.Ct. 1683, 1691-92, 40 L.Ed.2d 90 (1974). Congress requires Courts to review civil cases initiated by inmates in forma pauperis against government entities, officers or employees early on to determine whether the Plaintiff "seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(a) and (b)(2). Qualified immunity provides complete protection for government officials sued in their individual capacities as long as "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The purpose of this immunity is to allow government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation. Anderson v. Creighton, 483 U.S. 636, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987) "[A]ll but the plainly incompetent or those who knowingly violate the law" are protected. Malley v. Briggs, 475 U.S. 335, 344-45, 106 S.Ct. 1092, 1097-98, 89 L.Ed.2d 271 (1986). The Fourth Circuit follows a two-step sequential analysis for determining the validity of a qualified immunity defense: (1) the Court must determine whether the facts viewed in the light most favorable to the Plaintiff establish a deprivation of an actual constitutional right; and, if so, (2) the Court then proceeds to consider whether that right was clearly established at the time of the purported violation. Jones v. Buchanan, 325 F.3d 520, 526-27 (4th Cir. 2003); Leverette v. Bell, 247 F.3d 160, 166 (4th Cir. 2001), cert. denied, 534 U.S. 993, 122 S.Ct. 460, 151 L.Ed.2d 378 (2001). The undersigned has found that the facts viewed in a light most favorable to Plaintiff do not establish any deprivation of any constitutional right. The Court need not proceed to the second level of the qualified immunity analysis. Defendants are entitled to summary judgment because they are entitled to qualified immunity.
Having thoroughly examined the record in this case with respect to the pending matters and considered the applicable law, the undersigned hereby respectfully PROPOSES that the District Court confirm and accept the foregoing findings and RECOMMENDS that the District Court GRANT Defendants' Motion for Summary Judgment (Document No. 78.), DENY Plaintiff's Motion to Enforce the Eighth Amendment of the United States Constitution (Document No. 99.) and DISMISS this matter from the docket of the Court.
The parties are hereby notified that this "Proposed Findings and Recommendation" is hereby FILED, and a copy will be submitted to the Honorable United States District Judge Charles H. Haden II. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Rule 6(e) and 72(b), Federal Rules of Civil Procedure, the parties shall have thirteen days from the date of filing of this Findings and Recommendation within which to file with the Clerk of this Court specific written objections identifying the portions of the Findings and Recommendation to which objection is made and the basis of such objection. Extension of this time period may be granted for good cause.
Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals.Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989);Thomas v. Arn, 474 U.S. 140, 155 (1985); Wright v. Collins, 766 F.2d 841, 846 (4th Cir. 1985); United States v. Schonce, 727 F.2d 91, 94 (4th Cir. 1984). Copies of such objections shall be served on opposing parties, District Judge Haden and this Magistrate Judge.
The Clerk of this Court is directed to file this "Proposed Findings and Recommendation" and to mail a copy of the same to counsel of record and to Plaintiff.
The Clerk is requested to send a copy of this Order to Plaintiff and counsel of record.