United States District Court, N.D. Ohio, Eastern Division
MARCUS J. BARGANIER, SR., Pro Se, Plaintiff
CLIFFORD PICKNEY, et al., Defendants
MEMORANDUM OF OPINION AND ORDER
SOLOMON OLIVER, JR. UNITED STATES DISTRICT JUDGE
Plaintiff Marcus J. Barganier, Sr., a prisoner in the
Cuyahoga County Jail, has filed this in forma pauperis civil
rights action pursuant to 42 U.S.C. § 1983 against the
Cuyahoga County Sheriff Clifford Pickney, the Warden of the
Cuyahoga County Jail Eric Ivey, and the Director of Regional
Corrections Kenneth Mills (ECF No. 1.) In his Complaint, he
alleges that the practice of “red-zone”
lock-downs in the Jail constitutes cruel and unusual
punishment in violation of the Eighth Amendment. He alleges
these “red-zone” lock-downs occur in the Jail
“four to five days out of each week” and last
from “10:00 a.m. . . . to 7:30 p.m. most of the time,
” and that during the lock-downs, inmates are confined
to their cell with no use of “the shower, gaming area
inside the Pod Unit, or use of the telephone to call family,
friends, or attorneys.” (Id. at 5,
¶¶ C, D.) The Plaintiff asks the Court to order the
Jail to “cease its on-going ‘red-zone'
lock-downs, ” “to allow inmates to have access to
the showers and telephones during regular operating hours
from 7:30 a.m.- 1:00 a.m., 1:30 p.m.- 5:30 p.m. and 7:30
p.m.- 10:00 p.m., ” and “to penalize the
defendant(s) mon[e]tarily . . . for their inactions to
correct on-going problems that results in a red-zone.”
(Id. at ¶ VI.)
pro se pleadings are liberally construed, Williams v.
Curtin, 631 F.3d 380, 383 (6thCir. 2011),
federal district courts are required, under 28 U.S.C. §
1915A, to review any complaint filed in a civil action
“in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity,
” and to dismiss before service such action that the
court determines is frivolous or malicious, fails to state a
claim on which relief can be granted, or seeks monetary
relief from a defendant who is immune from such relief. See
28 U.S.C. § 1915A; Hill v. Lappin, 630 F.3d
468, 470 (6th Cir. 2010). In order to survive a
dismissal for failure to state a claim, a complaint must
contain sufficient factual matter, accepted as true, to state
claim to relief that is plausible on its face. Hill, 630 F.3d
at 471 (holding that the dismissal standard articulated in
Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) governs
dismissals for failure to state a claim under 28 U.S.C.
§ 1915A). To state a colorable claim under § 1983,
a plaintiff must allege facts sufficient to demonstrate he
has been deprived of a right secured by the Constitution or
laws of the United States by a person acting under color of
state law. Tahfs v. Proctor, 316 F.3d 584, 590
(6th Cir. 2002).
construing the Plaintiff's Complaint liberally, the Court
finds it fails to state a plausible claim under § 1983.
the Complaint does not set forth allegations suggesting that,
or how, any of the named Defendants was personally involved
in, or responsible for, the frequent practice of
“red-zone” lock- downs in the Jail that the
Plaintiff contends is unconstitutional. Rather, the Plaintiff
premises his action against the Defendants solely on the
basis that they hold supervisory positions of authority in
the Jail. (See ECF No. 1 at 4, ¶ D.) It is
well-established that liability for constitutional violations
cannot be imposed on supervisory officials solely on the
basis of respondeat superior, or on a failure to act.
Sheehee v. Luttrell, 199 F.3d 295, 300
(6th Cir. 1999).
the Plaintiff's allegations are insufficient to rise to
the level of cruel and unusual punishment under the Eighth
Amendment. It is well-established that the Constitution
“does not mandate comfortable prisons.”
Wilson v. Seiter, 501 U.S. 294, 298 (1991).
“[R]outine” discomforts of prison life do not
suffice to state a claim of cruel and unusual punishment
under the Constitution because such “discomfort is
‘part of the penalty that criminal offenders pay for
their offenses against society.'” Hudson v.
McMillian, 503 U.S. 1, 9-10 (1992), citing Rhodes v.
Chapman, 452 U.S. 337, 347 (1981). “[O]nly those
deprivations denying ‘the minimal civilized measure of
life's necessities' are sufficiently grave to form
the basis of an Eighth Amendment violation.”
Id. In other words, the Constitution is concerned
only with “deprivations of essential food, medical
care, or sanitation” or “other conditions
intolerable for prison confinement.” Rhodes, 452 U.S.
at 348. See also Ivey v. Wilson, 832 F.2d 950, 954
(6th Cir. 1987) (“Not every unpleasant
experience a prisoner might endure while incarcerated
constitutes cruel and unusual punishment within the meaning
of the Eighth Amendment.”).
“red-zone” lock-down practice of which the
Plaintiff complains, though unpleasant and harsh, does not
rise to the level of the kind of extreme deprivation required
to make out a constitutional conditions-of-confinement claim.
See, e.g., Bishawi v. Northeast Ohio Correctional
Center, 628 F.Appx. 339, 345-46 (6th Cir.
2014) (finding numerous unpleasant prison conditions,
including frequent lockdowns, insufficient to support an
Eighth Amendment claim); Quier v. Maury County Jail,
No. 1: 14 CV 153, 2015 WL 269932, at *2 (M.D. Tenn. Jan. 21,
2015) (“being placed in administrative lockdown, even
for 23 hours a day, does not rise to the level of a violation
of the Eighth Amendment's prohibition against cruel and
foregoing reasons, the Plaintiff's Complaint is dismissed
in accordance with 28 U.S.C. § 1915A. The Court further
certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an