UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA

__________________________________________ ) CL ARENCE SMI TH-B EY, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-0702 ( PL F) ) CCA/C TF, et al. , ) ) Def endants. ) __________________________________________)
OPI NI ON Plaintiff Clarence Smit h-B ey is an inmate at the Corr ectional Tr eatment F acility (“CTF ”), a

jail fac ility

located in Washing ton, D.C., and privately operated by

Correc tions Corporation of Ame rica

(“CCA”) pursuant to a c ontrac t with the District of Columbia. Food service s at CTF a

re pr ovided by

Aramark F ood Corporation (“ Aramark” ). Mr. Smith-Bey has 1 named CTF , CCA, and Aramark a s defe ndants in this case, a long w ith CTF/CCA employ ees Desa ndra Pea ce, I fea

nyi Akas, Shameka

Bive ns, and Walter F ulton. Mr. Smith-Bey , proce eding pro se , alleg es that the kitche n at CTA is so poorly maintained and inf

ested with ver

min that being f

orce d to eat food pr epar ed ther e amounts to
crue l and unusual punishment inflicted in violation of the Eig hth Amendment to the United

Mr. Smith-Bey

identified CTF’ s food servic e provide r as “ Aramark F ood Corp.” 1 in his complaint. S ee Complaint at 1. Ac cordingto Arama rk’s c ounsel, howeve r, there is no entity known as “ Aramark F ood Corp.” See Arama rk F ood Corp.’s Motion to Dismi ss and/or Quash Servic e at 1. Mr. Smith-Be y there fore has moved to ame nd his complaint to state claims ag ainst “Ara

mark Corre ctional Service s, L L C” instead of “ Aramark F ood Corp.” Plaintiff’s Motion to C orre ct Title of De fenda nt[ ’]s Name at 1. B eca

use the Court dismisses all of Mr. Smit h-B ey ’s claims on other grounds, any dispute over Ar amar

k’s cor rec t name is moot.States Consti tution. He bring s his claims under 42 U.S.C. § 1983 and see ks injunctive relief and monetary damag es in the amount of $750,000. Tw o motions t o dismiss , one brought by Aramark and the other

by all defe ndants except Ara mark (“ the CCA defe ndants”), a re c urre ntly

pending befor e the Court. Also pendingare the followingmotions filed by Mr. Smith-Bey : (1) a motion “to cor rec t titl e of de fenda

nt[ Aramark’s] name,” (2) a motion “to gr ant re lief fr om CCA/C TF and Ar amar

k Correc tion[ al] S ervic es,” a nd (3) a motion “for this Court to respond.” F or the
rea sons discussed below, the Court will g rant the motion to dismis s filed by the CCA defe ndants and deny all other pe nding motions as moot. 2
I . BA CKGROUND Acc ordingto the complaint, on Fe bruar y 3, 2009, Mr. Smith-Bey

was e atinghis dinner in CTF when he f

ound a dea d cockr oach in his food. See Compl. at 5. I n acc ordanc e with the prison’s interna l gr ievanc e proc edure s, he submitted an “infor mal resolution form” to pr ison administrators on Fe bruar y 6, 2009, stating that “I

had a r oach in my

beans a nd Spanish rice Tuesday . Idid tell the office r, I threw up my

food by putting my

right index fing er down my throat. The of

fice r[’s] name is Off

icer Akas.” Def

. Mot., Ex hibit 1, Attachment B. Mr. Smith-Bey

alleg es that on F ebrua

ry 18, 2009, he found a

second de ad cockr oach in his food. He submitt ed a se cond informa l resolution form, stating , “I had a de ad
roac h in my

oatmeal, I

notice[d] it after e atinghalf of the oatmeal. I almost ate the roa ch. This is The pa pers submitted by

the par ties and re viewed by

the Court include: plaintiff’s 2 complaint (“Compl.”), the CCA defenda nts’ motion to di smiss (“Def . Mot.”), plaintiff’ s “memora ndum of points and authorities to support civil complaint” (“ Pl. Mem.”), plaintiff’s memorandum of points and a uthorities in support of his moti on to “cha lleng e the oaths of the aff idavit” (“ Pl. R esp.”) , and plaintiff’ s “motion to gra nt relief f rom CCA/CTF and Ara

mark Correc tion Services L L C” (“Mot. for Relief”)
. 2the sec ond time. Office r Peac e witness[ed] the roach on the spoon when I showed he r.” D ef. Mot., Ex hibit 1, Attachment C. A prison officia l responded on the same for m by noting that “Te rminix pest control spra y [s] in the culinary

are a once a we ek. All food tra y s are washe d at 140 to 160 deg ree s. All tray car ts are w ashed w ith hot water a nd liquid saniti zer. And the culinary are a is clea

ned and sa

nitiz e[d] afte r eve ry

meal line.” See id. On Fe bruar

y 26, 2009, Mr. Smith-Bey submitt ed a third infor

mal resolution form, stating that “[o] n Fe b. 18 I was e atingmy

oatmeal a

nd discovere d a [r]oach afte r ea ting ha lf of the oatmea l. Ishowed the r oach to Of fice r Peac e, she ma de a [n]otation i n the log[b] ook. This was the se cond time in two wee ks period. The [f] irst time was Fe b. 3, the sec ond was F eb. 18, 200[9] . The [f]irst t ime [was] office r Aka s.” Compl., Ex . 2 at 1. A prison off icial re sponded on the same f

orm by noting, “ Iapolog ize for this unfortunate inc ident. We continue to work with Terminex Weekly

(the[y ] come to spray

and fogthe culinar

y on Wednesday

). Inmates who experience problems [] are cer tainly not expected to eat the f

ood. Please show the tr ay to the office r as you did and you will be re[-]served. Tha nk y ou for makingus awa re of this incident.” I d. at 2. Pursuant to CTF policy , the next st ep in the g rieva nce pr ocess a fter submitting a n informal re solution form is subm ission of a forma l gr ievanc e. See D ef. Mot., Exhibi t 1 ¶ 8. Mr. Smit h-B ey

did not complete a f

ormal g rieva

nce f orm afte r submitting any

of the thre e informa l resolution forms that he f illed out, but the parties disag ree as to why . The de fenda nts contend that plaintiff was of

fer ed a f ormal g rieva

nce f orm, but declined to a ccept it. S ee id. ¶ 15. Mr. Smit h-B ey

alleg es that he w as neve r g iven the for m although he reque sted it on at least three

3separ ate oc casions. Pl. Resp. at 7. He maintains that CTF intentionally preve nted him from completingthe administrative proc ess. I d., Ex s. C-E.

Havingfailed, f

or whatever

rea son, to ex haust CTF’s inter nal g rieva nce pr ocess, Mr. Smith-Bey

filed the c omplaint in thi s action on April 15, 2009. The first part of his complaint appea

rs on a f orm provided f

or use by prisoners who w ish to alleg e a violation of the ir civil rig hts. See Compl. at 1. I n response to the prompt, “State her e [as] briefly as possible the fac ts of y our ca se,” Mr . Smit h-B ey wrote: On Fe b. 3, [20] 09 Iwas e atingDinner, a fter e atinghalfwa y throug h my meal I located a dead r oach in my

beans. I told Office r Aka s, and he sa id the roac hes ar e re al bad in the kitche n. On Fe b. 18th Iwas e atingmy brea kfast, and a fter e atingalmost all of my oatmeal, a

roac h dead w as found in my food. This was a larg e roa ch, I

showed it to Offic er Pea ce who was on duty . She log it in the logbook, and [two other inmates] also are witness[es]
. I d. at 5. In a handwritten complaint attac hed to his form complaint, Mr. Smith-Be y ag ain descr ibed the two occ asions on which he ha d alleg edly discovere d a roa ch in his food, but this time expanded his claims to include complaints about the condition of the kitche n: “The f ood
car t that house[s] the food tra y s, it should have a door that keeps the a ir and roa ches out. The mice and r oache s come a ll upon the assembly line when pr epar ing the food.” I d. at 7. Attache d to the complaints was a ha ndwritten letter a ddresse d to this C ourt by Mr. Smit h-B ey . In that letter the pla intiff did not mention finding a de ad roa ch in his food, but instead made even br oader claims reg ardingthe condition of the kitche n at CTF: “T he culinar y is a hea lth hassard [ sic ] w/ roaches, mice , bug s, foul smell. No reg ard f or HACCP guide lines. Temper ature log/g

uidelines. Eatingequipment a disaster .” Compl., Ex . A at 1. He added,

4“Roac hes and mice and other bug s still control the kitche n, alongwith poor food handling skills.” I d. In J uly

of 2009, Mr. Smith-Be y

filed a motion “to g rant re lief fr om CCA/C TF a nd Aramark Corre ction Service s L L C” in which his claims evolved f urther. H e conte nded that “the kitchen is infested w ith insects, roac hes, flies, spider s, daddy long le g s, mice, rats, etc. The insects g et in the food c art, a nd they also climb up on the assembly line wher e the f

ood is being prepa red. . . . CCA off

icer s are rig ht there to witness the c ruel be havior that c ontinues . . . daily .” Mot. for Relief at 1.
I I . DI SCUS SI ON

In their motion to dism iss, the CCA defenda nts make three arguments. First, they argue that Mr. Smith-Be y ’s claims must fail bec ause he has not exhausted available administrative re medies. De f. Mot. at 6-8. Sec ond, they arg ue that the plaintiff ha s failed to alleg e fa cts constituting an E ighth Ame ndment violation. I d. at 8-11. Third, the y argue that eve n if the plaintiff’s Eig hth Amendment rights were violated, he is not entitled to money damag es beca use he did not suffe r phy sical injury . I d. at 11-12. B eca use the Court conc ludes that the first two issues are dispositi ve in this matter, it does not addre ss the third.
A. Failure to Exhaust Administrative Reme dies The de fenda

nts contend that by

not completing CTF ’s interna l gr ievanc e proc ess with reg ard to a

ny of his three informal complaints, Mr. Smith-Be y failed to e x haust his administrative re medies. De f. Mot. at 7-8. The plaintiff counter s that defe ndants’ own a cts and omissions are to blame for his inability to exhaust, and that his claims therefor e should not be
5reje cted on that ground. Pl. Resp. at 5. The Court finds this dispute irreleva nt, however , beca

use Mr. Smith-Bey

has not eve n initiated the g rieva nce pr ocess with re g ard to his most serious claims.
1. Standard of Re view

The de fenda

nts raise the e x haustion issue in their motion to di smiss, butshould have done so in a motion for summary judgme nt. Failure to exhaust “is an affir mative def

ense,” and “inmate s are not require d to specially plead or demonstrate e x haustion in their complaints.” J ones v. B ock, 549 U.S. 199, 216 (2007). Wher e, as he re, the failure to exhaust i s not appare nt from the f ace of the c omplaint, the defe nse must be ra ised and supporte d with rec ord evide nce on a motion for summary

judgme nt. See, e.g ., Shane v. United States, Civil Action No. 07-0577, 2008 WL101739, at *7 (D.D .C. J an. 9, 2008).

In this case, the de fenda

nts have attached to their

motion to di smiss various aff idavits and other doc uments supporting the ir contention that Mr. Smith-Be y did not follow the prison’s proc edure s for filingg rieva nces. See , e.g ., Def

. Mot., Ex . 1, Attachments A- D. Mr. Smit h-B ey

has re sponded by

filing a slew of opposingdocuments, includinga “motion to challeng e the oaths of the af fidavit” in which he attempts to refute point-by -point various statements made by

J oy ce A llen, CTF’s grieva nce of fice r, in an a ffidavit submitted by the defe ndants. See Pl. Resp. at 1-9. He has also submitted in support of his arguments reg arding exhaustion a letter from a nother inmate a

nd a copy of an “ inmate re quest slip” purportingto show that Mr. Smith-Bey reque sted forma l gr ievanc e for ms from CTF on August 2, 2009. See

6id., Ex s. C, F. Under such circ umstances, the Court will treat the pendingmotion to di smiss as a motion for summary

judgme nt. See F E D . R. C I V . P. 12(d). “[W ]here both par

ties submit m atiera l outside the pleading s and the pa rties ar e not taken by surprise or

deprive d of a r easona

ble opportunity

to contest fac ts averr ed outside the pleading s and the issues involved ar e discre te leg al issues, the cour t may conver t [ a motion to dismiss ] t o a motion for summary judgme nt without providing notice or the opportunity

for discovery to the parties.” Citi zens for Responsibility & E thics in W ashing ton v. Bd. of Gover nors of the F ed. Reser

ve Sy s., 669 F. Supp. 2d 126, 128-29 (D .D.C. 2009) (interna l quotation marks and c itation omit ted). In this inst ance , the par ties would not be aided by an additional opportunity

to submitdocuments in support of their a rguments; both plainti ff a nd defe ndants have alre ady

filed supportingexhibi ts, and the only fac ts upon which the Court must rely to rea ch its decision ar e not in dispute. See infra at 8. Summary judgme nt shall be g rante d if the plea dings ... “ and any aff idavits show that that there is no ge nuine issue as to any materia l fac t and that the movant is entitled to judgme nt as a matter

of law.” F E D . R. C I V . P. 56(c). Material fa cts are those that “mig ht affe ct the outcome of

the suit under the g overninglaw. . . .” Anderson v. L iberty L obby , Inc., 477 U.S. 242, 248 (1986). When conside ringa summary judgme nt motion, “the evidence of the nonmovant is to be believed, a nd all justifiable infere nces a re to be drawn in his favor.” I d. at 255;
see a lso W ashing ton PostCo. v. Dep' t of Hea lth and Human Servs., 865 F .2d 320, 325 (D.C. Cir.1989). The non- moving pa rty ' s opposition, however, must consist of more than me re unsupported alleg ations or denials a nd must be supported by

aff idavits or other c ompetent

7evidenc e settingforth spec ific fa cts showingthat there is a g enuine issue f or trial. See F E D . R. C I V . P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

2. Plaintiff’s Fa ilure to Exhaust Mos t of His Claims The Prison L itigation Refor m Act (“ PL RA”) pr ovides that “[n] o action shall be br oug ht with respec t to prison conditions under section 1983 of this title, or any other F eder al law, by

a prisoner c onfined in any

jail, prison, or other c orre ctional fa cility until such administrative
reme dies as ar e ava ilable ar e exhausted.” 42 U .S.C. § 1997e(a). The exhaustion requirement of Section 1997e(a ) is mandatory and “a pplies to all prisoners see king r edre ss for prison circ umstances or

occur renc es.” Porter

v. Nussle, 534 U.S. 516, 520 (2002). Sec tion 1997e(a) “af ford[s] corr ections off

icials time and opportunity to addre ss complaints internally befor e allowingthe initiation of a fede ral c ase,” and, whe re possible, to “satisfy the inmate, ther eby obviating the need f

or litigation.” I d. at 524-25. I f an inmate fails to exhaust one of more discrete claims, the PL RA require s only that the unexhausted claims be dismissed, not the complaint in its entirety . J ones v. B ock, 549 U.S. at 220-22.

Whil e Mr. Smith-Be y

has vehe mently

denied the de fenda

nts’ claims that additional, unexhausted administrative reme dies wer e ava ilable to him, see Pl. Resp. at 1-9, he does not dispute the def

endants’ de scriptions of the thre e informa l resolution forms that he completed or

the ac cura cy

of the c opies of those for ms that are attached to the de fenda nts’ motion. S ee D ef. Mot., Ex. 1, ¶¶ 12-14; id., Ex . 1, Attachments B -C. Indeed, Mr . Smit h-B ey himself attache d a copy

of the third of those f

orms to his complaint. S ee Compl., Ex. 2. I t is evident fr om the fac e of those inf ormal re solution forms that the plaintiff only initiated the

8g rieva

nce pr ocess with re spect to his complaints about findinga coc kroac h in his food on two
occa sions. He neve r pre sented to prison administrators his broa der c laims reg ardingthe litany of unsanitary

conditions that he now alleg es ar e pre sent in the prison’s kitchen. Mr. Smith-Bey ’s complaint and subseque nt filings make a lar g e number of cla ims that wer e not ra ised or eve n hinted at in his informal g rieva nces. Such c laims include his contentions that (1) a

prison officia l acknowle dg ed that “the roac hes ar e bad” in the kitchen and told the plaintiff that if he did not like the food in the kitche n, he could pur chase food fr om the commissary

kitchen instead, Mot. for Relief at 1; (2) CTF’s kitche n is infested with coc kroac hes, mice, spiders, a

nd other ve rmin, id.; (3) the food at CTF is contaminated, ta stes bad, and is ofte n cold, Pl. Mem. at 2; (4) the kitche n does not confor m to applicable r egulations and is a hea lth hazard, Compl., Ex . A; and (5) the food is pre pare d in ge nera lly unsanitary

conditions and the kitchen wor

kers disre g ard sa

nitation procedur es. Pl. Mem. at 2. Mr. Smith-Bey ’s modest complaints about two coc kroac hes we re not suff icient to put prison officials on notice as to the much g rave r cla ims that he has ra ised in his complaint and subsequent filing s. “The le vel of de tail nece ssary in a g rieva

nce to c omply

with the g rieva

nce proce dures will var

y from sy stem to sy stem and cla im to claim, but it is the prison' s require ments, and not the PL RA, that define the boundarie s of prope r exhaustion.” J ones v. Boc k, 549 U.S. at 218. Her e, the be st indicator of the le vel of de tail require d was the infor mal g rieva nce f orm itself, which a sked the plaintiff f or a “ Desc ription of issue, problem, and solution y ou sug g est.” See Compl., Ex . B. B y descr ibing only

the two occ asions when he alleg edly found a c ockroa ch in his food and not makingany of his broade r cla ims about the overa ll food and hea lth conditions, Mr. S mith-Bey conveyed that the only

“issue” or

“proble m” he wa

nted
9prison officia ls to address involved the two instanc es of a cockr oach f

inding its way

into his food. Nor did he offe r a solution, as the for m invited him t o do, that would have put the defe ndants on notice a s to the brea dth of the cla ims that he now makes be fore this Court. To the extent that Mr. Sm ith-Be y ’s informal r esolution forms did not give pr ison officials the opportunity

to addre ss his claims internally as the PL RA envisions, it would be inappropriate for the Court to addre ss those claims here . Thus, the only claims brought by

Mr. Smith-Bey

that are proper ly befor e this Court are his a lleg ations that he found a cockr oach in his food on two
occa sions. Wit h respe ct to those claims, there is a fac tual dispute as to whether the plaintiff exhausted all available administrative re medies. See D ef. Mot. at 4; Pl. Resp. at 2 (insisting that prison administrators withheld the nec essar y g rieva nce f orms from him). The Court ther efor e declines to re solve those claims by rely ing on the PL RA’s exhaustion requirement, a nd instead will address the me rits of plaintiff’s c onstitut ional claims, dismissi ngthem beca use they fail to rise to the leve l of an Eig hth Amendment violation. B. The Plaintiff ’s Rem aining Cl aims The de fenda

nts have moved to dismiss Mr. Smi th-Be y ’s re maining c laims pursuant to Rule 12(b)( 6) of the F eder al Rules of Civil P roce dure, a rguing that the claims, eve n if true, do not alleg e an E ighth Ame ndment violation. Def. Mot. at 8. The defe ndants furthe r contend that e ven if Mr. Smith-Be y ’s Eig hth Amendment rig hts were violated, he is not entitled to money damag es bec ause he has suffe red no phy sical injury . The Court agree s with the first argument and so nee d not addre ss the second.

101. Standard of Re view The plaintiff' s complaint was filed pro se . Complaints fil ed without the assistance of counse l must be construed libera lly . See Richar dson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999) (c iting Ha ines v. Ker ner, 404 U .S. 519, 520-21 (1972) (pe r cur iam) (holding alleg ations contained in a prisoner' s pro se complaint to less stringe nt standards than ple ading s written by

counsel in re versing

a dismissal for fa ilure to state a c laim)). On a motion to dismi ss under Rule 12(b) (6), whic h provides for the dismissal of a complaint in the event that it “f ail[s] to state a c laim upon which re lief ca n be g rante d,” the Court must acce pt as true a ll of the fac tual alleg ations contained in the c omplaint. See Be ll Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007). The complaint “is construe d liberally in the [pl aintiff' s] favor, and [the Court should] g rant [the plaintiff] the benefit of a ll inferenc es that ca n be der ived from the f

acts a lleg ed.” K owal v. MCICommc'ns Corp., 16 F .3d 1271, 1276 (D.C. Cir. 1994). Neve rtheless, the Court ne ed not ac cept infe renc es dra wn by the plaintiff if those infere nces a

re unsuppor

ted by fac ts alleg ed in the complaint, nor must the Court ac cept plaintiff' s leg al conc lusions. S ee id.; see also Ashcr oft v. I qbal, 129 S.Ct. 1937, 1949-50 (2009).
2. Absenc e of a

n Eig hth Amendment Violation Establishing a

n Eig hth Amendment violation require s an objec tive showing that the depr ivation alleg ed is “suff iciently serious,” a

nd a subjec tive showing that prison officia ls had a “ sufficie ntly

culpable sta

te of mind,” one marke d by “deliber ate indiffe renc e.” F arme r v. Br ennan, 511 U .S. 825, 834 (1994). Prison authorities are require d to “provide huma ne conditions of confine ment” and to “ ensure that inmates rec eive a dequate food.” I d. at 832.

11Prisons must serve “nutritionally adequate food that is pre pare d and ser ved under conditions which do not pre sent an immediate da ng er to the he alth and we ll being of the inmates who consume it.” F renc h v. Owens, 777 F .2d 1250, 1255 (7th Cir. 1985) (quotingRamos v. L amm, 639 F.2d 559, 575 ( 10th Cir. 1980)). Not just any unpleasa nt condition violates the Eighth Amendment, howe ver; the c ondition mus t be “so g rave that it violates contemporar y standards of dece ncy .” Scott v. District of Columbia, 139 F.3d 940, 943 (D .C. Cir. 1998) (quoting H elling v. McKinney , 509 U.S. 25, 36 (1993)).

The Court finds that plaintiff fa ils to allege a suff iciently serious depr ivation that would rise to the leve l of an Eig hth Amendment violation. Whi le ce rtainly unpleasa nt, two instances of

discoveringcockr oache s in one’s food do not rise to the le vel of a sufficie ntly serious depr ivation. See Hamm v. De Kalb County , 774 F.2d 1567, 1575 ( 11th Cir. 1985) (“The fac t that the food occ asionally contains for eig n objects or sometimes is serve d cold, while unpleasa nt, does not amount to a constitutional deprivation.”); se e also L unsford v. Rey

nolds, 376 F.Supp. 526, 528 (W.D.Va. 1974) (“O cca sional incidents of a f oreig n object conta ined in food, while re g rettable , does not prese nt a question of constitutional proportion.”), A llen v. Maryland, Civil Action No. 10-0353, 2010 WL727753, at *1 (D.Md. F eb. 25, 2010) ( “To state a constitutional violation for unsanitary food pre paration an inmate must do more than alleg e a single or isolated incident of contamination.”) . Consequently , Mr. Smith-Bey ’s claims will be dismiss ed for

failure to state a c laim.

12I I I . CONCLUSI ON For the fore g oing r easons, the Court will g rant the CCA def endants’ motion to dismiss the complaint in this case, whic h has bee n partly conver ted into a motion for summary judgme nt. All other pendingmotions wil l be denied a s moot. An Order consistent with this Opinion shall issue this s ame da y . SO ORDERED. /s/____________________________ PAULL . FRI EDMAN United States District J udg e DATE: Mar ch 29, 2010

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