United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER
Y. PEARSON UNITED STATES DISTRICT JUDGE.
Se Plaintiff Clyde Pontefract is a federal prisoner at
the Federal Correctional Institution Elkton (“FCI
Elkton”) in Lisbon, Ohio. He brings this action
pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), against the
United States of America, Warden Steven Merlak, and Nick
Ferguson (collectively “Defendants”). Complaint
(ECF No. 1). Plaintiff claims that Defendants are
deliberately indifferent to his basic nutritional needs in
violation of his rights under the Eighth Amendment of the
United States Constitution to be free from cruel and unusual
reasons that follow, this case is dismissed.
alleges that he is 59 years old, 5'11" in height,
and weighs 160 pounds or less. ECF No. 1 at ¶¶
34-36. He claims that he is receiving insufficient
portion sizes at meal time which prevents him from acquiring
enough calories “to maintain proper weight and health
over three years at below calorie intake of
2000.” ECF No. 1 at PageID #: 14.
Plaintiff claims that he must be cautious with respect to
exercise to avoid burning excessive calories. ECF No. 1
at ¶ 66. But, Plaintiff does not allege what he
believes to be a “proper weight” or that he is
underweight.  Nor does Plaintiff allege that his
weight or reduced exercise has had a negative impact on his
claims that receiving insufficient portion sizes at meal time
results from the “one size fits all” portions
served at FCI Elkton, Defendants not allowing a
“Hot-Bar” at the institution, a food serving tray
that is too small, and food service workers stealing food to
sell to the inmate population. ECF No. 1 at ¶¶
19, 25; PageID #: 15.
extensively cites menu items, required portions, and the
reduced portions he claims to be receiving. He filed numerous
internal complaints and grievances to which the Warden
responded that proper portion sizes were being served that
meet the nutritional requirements established by a registered
dietician. Unsatisfied, Plaintiff suggested that the issue be
settled by weighing 10 separate items to determine “who
is right and who is wrong” but that was not permitted.
ECF No. 1 at ¶¶ 57-62.
asks the Court (among other actions) to: declare Defendants
have violated his rights under federal health and safety laws
and the Constitution's prohibition against cruel and
unusual punishment; require Defendants to install a
“Hot-Bar”; require larger food trays to allow for
increased portion sizes; discontinue the “one size fits
all” practice with respect to food portion sizes; and,
award him $200, 000 in punitive damages. See ECF No. 1 at
Standard of Review
se pleadings are liberally construed by the Court.
Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per
curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972).
Notwithstanding, the district court is required under 28
U.S.C. § 1915(e)(2)(B) to review all in forma
pauperis complaints, and to dismiss before service any
such complaint that the Court determines is frivolous or
malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief. See Hill v. Lappin, 630
F.3d 468, 470 (6th Cir. 2010). While some latitude must be
extended to pro se plaintiffs with respect to their
pleadings, the Court is not required to conjure unpleaded
facts or construct claims against defendants on behalf of a
pro se plaintiff. See Grinter v. Knight,
532 F.3d 567, 577 (6th Cir. 2008) (citation omitted);
Thomas v. Brennan, No. 1:18CV1312, 2018 WL 3135939,
at *1 (N.D. Ohio June 26, 2018) (Gaughan, C.J.) (citing
Beaudett v. City of Hampton, 775 F.2d 1274, 1277
(4th Cir. 1985) and Erwin v. Edwards, 22 F.
App'x. 579, 580 (6th Cir. 2001)).
order to withstand scrutiny under § 1915(e)(2)(B) and
§ 1915A, “‘a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.'”
Hill, 630 F.3d at 470-71 (holding that the dismissal
standard articulated in Ashcroft v. Iqbal, 556 U.S.
662 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007), governs dismissals for failure to state a claim
under § 1915(e)(2)(B) and § 1915A) (quoting
Iqbal, 556 U.S. at 678, quoting Twombly,
550 U.S. at 570)). Thus, a complaint fails to state a claim
on which relief may be granted when it lacks
“sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”
Id. at 471.
discussing the merits of Plaintiff's claim, the Court
must determine whether that claim states a Bivens
cause of action. Bivens provides a cause of action
against individual officers acting under color of federal law
alleged to have acted unconstitutionally. Correctional
Services Corp. v. Malesko, 534 U.S. 61, 70 (2001). It
does not support an action against the United States
government or its agencies. Id. Accordingly,
Plaintiff fails to state a cause of action against the United
States of America.
order to state a plausible Bivens claim against
Merlak and Ferguson, Plaintiff must allege facts suggesting
Merlak and Ferguson were personally involved in the claimed
deprivation of his constitutional rights. See Nwaebo v.
Hawk-Sawyer, 83 F. App'x. 85, 86 (6th Cir. 2003)
(citing Rizzo v. Goode,423 U.S. 362, 373-77
(1976)). Plaintiff alleges that Warden Merlak was
“legally responsible for the overall operation of every
department within [FCI Elkton.]” See ECF No. 1 at
¶¶ 7, 64. Similarly, Plaintiff asserts that
Ferguson, as the Food Administrator, is legally responsible
for the operation of the food service department at FCI
Elkton. ECF No. 1 at ¶¶ 8, 64. But,
Plaintiff does not claim that any conduct was personally
undertaken by either Merlak or Ferguson that allegedly
violated his rights under the Eighth Amendment. Neither
Merlak nor Ferguson can be liable under Bivens on a
theory of respondeat superior. See Johnson v.
U.S. Bureau of Prison, No. 4:12CV2802, 2013 WL 1819227,
at *4 (N.D. Ohio April 29, 2013) (Pearson, J.) (citing
Okoro v. Scibana, 63 Fed.Appx. 182, 184 (6th Cir.
2003)); Jones v. City of Memphis, Tenn., 586 F.2d