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Jordan S. Herb v. Dauphin County Prison


July 26, 2012


The opinion of the court was delivered by: Judge Caldwell


I. Introduction

Plaintiff, an inmate at the Dauphin County Prison, filed this 42 U.S.C. § 1983 action based on his conditions of confinement, specifically, being required to eat his meals next to a toilet constantly emitting an ammonia-like odor. Herb names the prison as the sole defendant.

Plaintiff also seeks to proceed in forma pauperis. Based on this request, the court is required under 28 U.S.C. § 1915(e)(2)(B) to examine the complaint for legal sufficiency. In doing so, the court will grant Herb's motion to proceed in forma pauperis but will dismiss the complaint for failure to state a claim upon which relief may be granted.

II. Standard of Review

A complaint filed in forma pauperismay be dismissed if it is determined that the action fails to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). In deciding whether the complaint fails to state a claim on which relief may be granted, the court employs the same standard used to analyze motions to dismiss under Fed. R. Civ. P. 12(b)(6). Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). Under Rule 12(b)(6), we must "accept all factual allegations as true, construe the complaint in the light most favorable to plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. Cnty. Of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)).

Pro se pleadings are held to a less stringent standard than formal pleadings drafted by attorneys and are to be liberally construed. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009). Pro se litigants are to be granted leave to file a curative amended complaint even when a plaintiff does not seek leave to amend, unless such an amendment would be inequitable or futile. See Phillips, 515 F.3d at 245-46 (citing Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004)). However, a complaint that sets forth facts which affirmatively demonstrate that the plaintiff has no right to recover is properly dismissed without leave to amend. Grayson v. Mayview State Hospital, 293 F.3d 103, 106 (3d Cir. 2002). With this standard in mind, we set forth the background of this litigation, as Plaintiff alleges it.

III. Background

Herb alleges the following. On June 26, 2012, he and another inmate were placed in a cell that was originally designed to house only one prisoner. (Doc. 1, Compl. at p. 2).*fn1 He and his cellmate are forced to eat their meals in this poorly ventilated cell while seated near a foul-smelling toilet. (Id.) Herb states "[t]his is the most d[isgusting] thing [he has] ever endured." After filing a grievance on the matter, as of July 18, 2012, nothing had changed and he is "still being forced to eat in [his] cell beside a toilet." (Id. at p. 3). He claims the smell of ammonia coming from the toilet "is so strong [his] eyes are actually burning. This is due to no ventilation." (Id.). As relief, Plaintiff seeks an injunction requiring the prison to build a dining hall and damages in the amount of $185,000 to teach the prison a lesson.

IV. Discussion

A. Failure to State A Claim against Dauphin

County Prison

To state a § 1983 claim, a plaintiff must plead two essential elements: (1) the conduct complained of was committed by a person acting under color of state law, and (2) the conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 580-81 (3d. Cir. 2003). Personal involvement in the alleged wrongs is necessary for the imposition of liability in a civil rights action. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005); Sutton v. Rasheed, 323 F.3d 236, 249-50 (3d Cir. 2003); Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988). There is no respondeat superior liability in 1983 actions. Evancho, supra.

A county prison does not have the legal capacity to be sued in its own name. Johnson v. DeRose, No. 09-CV-267, 2010 WL 817398, at *9, n.8 (M.D. Pa. Mar. 9, 2010) (Caldwell, J.). Hence, the prison must be dismissed as a defendant. A proper defendant would be Dauphin County, but the County would not be liable under respondeat superior, only for a policy or custom that caused injury to Plaintiff. Watson v. Abington Twp., 478 F.3d 144, 155 (3d Cir. 2007). Plaintiff could also have named individual prison officials personally involved in the situation.

B. Herb Fails to State a Conditions-of-Confinement Claim Under the Eighth Amendment, prison officials must provide humane conditions of confinement; ensure that inmates receive adequate food, clothing, shelter, and medical care; and take reasonable measures to guarantee the inmates' safety. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994). Conditions that result in "unquestioned and serious deprivations of basic human needs" or "deprive inmates of the minimal civilized measure of life's necessities" violate the Eighth Amendment. Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981); see also Hudson v. McMillian, 503 U.S. 1, 8--10, 112 S.Ct. 995, 999--1000, 117 L.Ed.2d 156 (1992). The prison official or employee must also be deliberately indifferent to an inmate's health or safety. Farmer, 511 U.S. at 834, 114 S.Ct. at 1977.

Here, Herb contends he is forced to eat in his cell where a foul ammonia odor from his toilet causes his eyes to burn. Notably, it is not alleged that his toilet was malfunctioning, or that he was not permitted to flush it. Nor is it suggested that the toilet odor was due to sewage overflow in his cell. Albeit distasteful, being required to eat in his cell under such conditions does not amount to an Eighth Amendment deprivation. See Walters v. Berks Cnty. Prison, No. 11-6357, 2012 WL 760849, at *2 (E.D. Pa. Mar. 9, 2012) (being forced to eat in a cell next to a toilet emitting unpleasant odors does not violate the Eighth Amendment); Hill v. Smith, No. 09-0811, 2010 WL 148272, at *3, 6 (W.D. La. Jan. 12, 2010) (being forced to eat in a dormitory near toilets emitting odors does not violate the Eighth Amendment).

Plaintiff's allegations cannot be remedied by amendment, so we will dismiss the Complaint without leave to amend.

We will issue an appropriate order.

William W. Caldwell United States District Judge



(Judge Caldwell)

: CIVIL NO. 1:12-CV-1402


AND NOW, this 26th day of July, 2012, IT IS ORDERED that:

1. The Plaintiff's Application to Proceed in forma pauperis (Doc. 6), is GRANTED.

2. This action is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted.*fn1

3. Any appeal taken from this Order shall be deemed frivolous, lacking in good faith and without probable cause.

4. The Clerk of Court shall close this file.

William W. Caldwell United States District Judge

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