United States District Court, E.D. Oklahoma
JOSEPH Z. WOMBLE, Plaintiff,
KAMERON HARVANEK, Defendants.
OPINION AND ORDER
A. White UNITED STATES DISTRICT JUDGE
action is before the Court on Plaintiff's motion for
preliminary injunction (Dkt. 5) and Defendant's motion to
dismiss Plaintiff's amended civil rights complaint (Dkt.
16). Plaintiff, a pro se prisoner in the custody of the
Oklahoma Department of Corrections, brings this action under
the authority of 42 U.S.C. § 1983, seeking monetary and
injunctive relief for alleged constitutional violations
during his incarceration at Mack Alford Correctional Center
(MACC) in Stringtown, Oklahoma. His sole defendant is MACC
Warden Kameron Harvanek, in his individual capacity.
alleges in his amended complaint (Dkt. 9) that when he was
housed at MACC from January 2012 to August 2016, Defendant
was deliberately indifferent to Plaintiff's
unconstitutional conditions of confinement. In August 2015,
the ice machine and water fountain on Plaintiff's housing
unit allegedly stopped working, and neither was replaced.
Plaintiff claims that in June 2016, his cell temperature rose
to more than 90 degrees on more than fifteen occasions, and
he became severely dehydrated on three occasions that month.
further alleges that on June 16, 2016, he sent a Request to
Staff to Defendant concerning the heat and the lack of cold,
uncontaminated drinking water. Defendant denied the request
and told Plaintiff to drink water from the sink in his cell.
Plaintiff asserts, however, that the water in his sink was
warm, contaminated, and brown in color, and he often vomited
after drinking it.
second grievance to Defendant on June 26, 2016, Plaintiff
complained that because the temperature was so high in his
cellblock, Defendant was required to provide cold,
uncontaminated drinking water by installing a water fountain.
Defendant again denied relief and stated, “You have
[enough] ice and water to prevent dehydration.” (Dkt. 9
at 4). Plaintiff asserts that at the time, he received only
one, half-melted, 6-ounce scoop of ice a day, and his cell
water was contaminated and warm. Plaintiff appealed the
grievance denial to the Administrative Review Authority,
which summarily denied the appeal in July 2016.
courts must engage in a preliminary screening of cases in
which prisoners seek redress from a governmental entity or
officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). The court must identify any cognizable
claims and dismiss any claims which are frivolous, malicious,
fail to state a claim upon which relief may be granted, or
seek monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915A(b); 28 U.S.C. §
pleading standard for all civil actions was articulated in
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
See Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). To
avoid dismissal for failure to state a claim under
Fed.R.Civ.P. 12(b)(6), a complaint must present factual
allegations, assumed to be true, that “raise a right to
relief above the speculative level.” Twombly,
550 U.S. at 555. The complaint must contain “enough
facts to state a claim to relief that is plausible on its
face.” Id. at 570. A court must accept all the
well-pleaded allegations of the complaint as true, even if
doubtful in fact, and must construe the allegations in the
light most favorable to the plaintiff. Id. at
555-56. “So, when the allegations in a complaint,
however true, could not raise a claim of entitlement to
relief, ” the cause of action should be dismissed.
Id. at 558. The Court applies the same standard of
review for dismissals under 28 U.S.C. §
1915(e)(2)(B)(ii) that is employed for Fed.R.Civ.P. 12(b)(6)
motions to dismiss for failure to state a claim. Kay v.
Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007).
se plaintiff's complaint must be broadly construed under
this standard. Erickson v. Pardus, 551 U.S. 89, 94
(2007); Haines v. Kerner, 404 U.S. 519, 520 (1972).
The generous construction to be given to the pro se
litigant's allegations “does not relieve the
plaintiff of the burden of alleging sufficient facts on which
a recognized legal claim could be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Notwithstanding a pro se plaintiff's various mistakes or
misunderstandings of legal doctrines or procedural
requirements, “if a court can reasonably read the
pleadings to state a valid claim on which the plaintiff could
prevail, it should do so . . . .” Id. A
reviewing court need not accept “mere conclusions
characterizing pleaded facts.” Bryson v. City of
Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990); see
also Twombly, 550 U.S. at 555 (“While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff's obligation to
provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.”)
(quotations and citations omitted). The court “will not
supply additional factual allegations to round out a
plaintiff's complaint or construct a legal theory on a
plaintiff's behalf.” Whitney v. New
Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
Motion to Dismiss
Harvanek asserts, among other things, that Plaintiff has
failed to allege an Eighth Amendment violation. Conditions of
confinement violate the prohibition against cruel and unusual
punishment when “they result in unquestioned and
serious deprivation of basic human needs.” Rhodes
v. Chapman, 452 U.S. 337, 347 (1981). The Constitution,
however, “‘does not mandate comfortable
prisons'” and only those deprivations denying
‘the minimal civilized measure of life's
necessities' are sufficiently grave to form the basis of
an Eighth Amendment violation.” Wilson v.
Seiter, 501 U.S. 294, 298 (1991) (quoting
Rhodes, 452 U.S. at 349, 347).
prevail on a “conditions of confinement” claim
under the Eighth Amendment, an inmate must establish that (1)
the condition complained of is “‘sufficiently
serious'” to implicate constitutional protection,
and (2) prison officials acted with “‘deliberate
indifference' to inmate health or safety.”
DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir.
2001) (quoting Farmer v. Brennan, 511 U.S. 825, 834
(1994)). An alleged deprivation is “sufficiently
serious” if it exposes the inmate to a
“substantial risk of serious harm.”
Farmer, 511 at 834. To show deliberate indifference,
“a plaintiff must establish that defendant(s) knew he
faced a substantial risk of harm and disregarded that risk,
‘by failing to take reasonable measures to abate
it.'” Hunt v. Uphoff, 199 F.3d 1220, 1224
(10th Cir. 1999) (quoting Farmer, 511 U.S. at 847).
“[T]he 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.” DeSpain, 264 F.3d at 975 (quoting
Farmer, 511 U.S. at 837).
the Court finds Plaintiff has failed to show that the broken
ice machine, the broken water fountain, or the temperature of
his cell qualifies as a sufficiently serious deprivation.
Plaintiff received a daily cup of ice during the hot summer
months, and he had water from the sink in his cell. Although
Plaintiff claims the water in his cell was contaminated, he
offers only conclusory allegations. In addition, there is no
indication that Plaintiff's symptoms of dehydration and
vomiting were serious enough to warrant treatment.
Plaintiff has failed to allege “deliberate
indifference” by Defendant that would rise to the level
of a constitutional violation. See Strope v.
Sebelius, 189 F.App'x 763, 766 (10th Cir. 2006)
(unpublished) (holding that although the temperature in a
cell may be “excessively hot” and uncomfortable,
those conditions did not rise to a violation of the Eighth
Amendment). Defendant's denial of Plaintiff's
grievances is not evidence of deliberate indifference.
See Stewart v. Beach, 701 F.3d 1322, 1328 (10th Cir.
2012) (“Whatever knowledge [the warden] may have had
when he denied [plaintiff's] appeal, his only involvement
was to deny the grievance appeal, which is insufficient for
§ 1983 liability.”). See also Kinkead v.
Sutmiller, 2014 WL 4792074, at *2 (W.D. Okla. Sept. 24,
2014) (unpublished) (initial denial ...