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Pontefract v. United States

United States District Court, N.D. Ohio, Eastern Division

December 23, 2019

CLYDE PONTEFRACT, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants.

          MEMORANDUM OF OPINION AND ORDER

          BENITA Y. PEARSON UNITED STATES DISTRICT JUDGE.

         Pro 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 punishment.

         For the reasons that follow, this case is dismissed.

         I. Background

         Plaintiff 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.”[1] 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. [2] Nor does Plaintiff allege that his weight or reduced exercise has had a negative impact on his health.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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 ¶¶ 67-73.

         II. Standard of Review

         Pro 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)).

         In 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.

         III. Analysis

         Before 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.

         In 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 ...


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