DEXTER HARMON v. OFFICER DEXTER PAYNE, ASSISTANT DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION; OFFICER JAMES GIBSON, WARDEN, VARNER UNIT; OFFICER JAMES SHIPMAN, DEPUTY WARDEN, VARNER UNIT; OFFICER YOLANDA CLARK, FOOD SERVICE DEPARTMENT; OFFICER LAQUISTA SWOPES, CORRECTIONAL OFFICER
No. CV-18-721
Supreme Court of Arkansas
January 16, 2020
2020 Ark. 17
Opinion Delivered: January 16, 2020. PRO SE APPEAL FROM THE LINCOLN COUNTY CIRCUIT COURT [NO. 40CV-18-58]. HONORABLE JODI RAINES DENNIS, JUDGE.
AFFIRMED IN PART; REVERSED IN PART.
SHAWN A. WOMACK, Associate Justice
Dexter Harmon sued Arkansas prison officials under the
During the relevant time period, Harmon was incarcerated at the Varner Supermax Unit of the Arkansas Department of Correction (ADC). In his pro se complaint, Harmon alleged that Appellees failed to comply with an ADC administrative regulation and unit policy concerning the food service at Varner Supermax. He sought to hold Appellees liable for negligence and for cruel and unusual punishment under the
According to the complaint, Appellees consistently served small portions of cold and unappetizing food. Harmon claimed he was provided nutritionally inadequate, poorly seasoned, and “regularly unappealing” food that “tastes nasty.” He also alleged that meals were delivered by unqualified prison employees who had not been trained in food service. He stated that employees did not wash their hands, had poor personal hygiene, appeared sick, and wore their regular uniforms while handling food. Harmon further complained that the food was not kept at acceptable temperatures. He accused Appellees of being deliberately indifferent to these concerns by refusing to thoroughly investigate his grievances and refusing to properly oversee food distribution. As a result, Harmon alleged that he was afraid to eat the food because he believed it was contaminated and placed him at risk of contracting a foodborne illness. According to Harmon, he consequently suffered emotional harm, weight loss, energy loss, and fatigue.
The circuit court granted Appellees’ motion to dismiss. The court concluded that the complaint was barred by sovereign and statutory immunity and failed to state facts upon
II.
On appeal, Harmon contends that his complaint provided sufficient factual allegations to establish an exception to sovereign immunity, preclude application of statutory immunity, and satisfy our fact-pleading requirement. According to Harmon, his complaint provided factual allegations showing that Appellees’ conduct violated the state constitution‘s prohibition against cruel and unusual punishment under the
When reviewing the circuit court‘s decision to grant a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. See Banks v. Jones, 2019 Ark. 204, at 3, 575 S.W.3d 111, 114. All reasonable inferences are resolved in favor of the complaint, and the pleadings are liberally construed. Id. Under our fact-pleading requirement, a complaint must state facts in order to entitle the pleader to relief. Id. Mere conclusions will not suffice. Id. We review a motion to dismiss for abuse of discretion. Id. But whether a party is immune from suit is purely a question of law and is reviewed de novo. Id.
The
Harmon does not challenge the extension of sovereign immunity to the official-capacity claims against Appellees. Rather, he contends that an exception to sovereign immunity applies. According to Harmon, Appellees are not entitled to sovereign immunity because they acted illegally and unconstitutionally and refused to do purely ministerial actions. To be sure, these are among the previously recognized exceptions to the doctrine of sovereign immunity. See Williams, 2018 Ark. 17, at 3, 535 S.W.3d at 268. However, a complaint alleging an exception to sovereign immunity is not exempt from our fact pleading requirements. Id. The complaint must plead sufficient facts establishing an unconstitutional or unlawful act that would avoid application of sovereign immunity. Id.
State officials and employees are not afforded constitutional sovereign immunity in their individual capacities. See Grine v. Bd. of Trs., 338 Ark. 791, 799, 2 S.W.3d 54, 59
B.
The
We have not previously considered the constitutional protections offered to inmates with respect to prison diets. But this issue is well-ploughed in the federal courts. Indeed, the Eighth Circuit has long recognized that inmates have a right to a nutritionally adequate diet. See Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir. 1992). Food must be prepared and served under conditions that do not present an immediate danger to the inmate‘s health and well-being. See French v. Owens, 777 F.2d 1250, 1255 (7th Cir. 1985) (citing Ramos v. Lamm, 639 F.2d 559, 570–71 (10th Cir. 1980)). That said, food need not be tasty or aesthetically pleasing. See Cunningham v. Jones, 567 F.2d 653, 659–60 (6th Cir. 1977). That food occasionally contains foreign objects or is sometimes served cold, while unpleasant, does not amount to a constitutional deprivation. See Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir. 1985). A well-balanced meal containing sufficient nutritional value to preserve health is all that is required. See LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993); Smith v. Sullivan, 553 F.2d 373, 380 (5th Cir. 1977).
Taking the facts alleged in Harmon‘s complaint as true, Harmon failed to allege that the prison food service presented an immediate danger to his health. Indeed, Harmon
Harmon‘s assertions that the food was unsanitary and contaminated were based on allegations that the prison employees who deliver the meals did not wash their hands, appeared sick, and wore their regular uniforms during food service. Harmon made no allegations regarding the sanitary conditions of the kitchen or the hygiene habits of the personnel who are responsible for the food preparation itself. Further, Harmon did not explain how the means of delivering the meals or the temperature of the food at the time of delivery posed a substantial risk of foodborne illnesses. Moreover, under the standards set forth by the federal courts, there is no constitutional requirement that food be delivered by personnel who are experienced in food service or who have been medically screened.
The basic component in stating a viable claim is that prison food is not adequately nutritious to preserve an inmate‘s health. Harmon made only conclusory allegations in this regard. Accordingly, Harmon failed to allege sufficient facts demonstrating a serious deprivation of his right to nutritious food that poses a substantial risk to his health. Because the allegations failed to establish a constitutional violation, he failed to surmount sovereign and statutory immunity. Harmon‘s constitutional claims are therefore barred.
In sum, the circuit court did not abuse its discretion in dismissing Harmon‘s complaint. The factual allegations within the complaint failed to establish an exception to sovereign immunity and avoid statutory immunity. We accordingly affirm the dismissal of the complaint and need not reach the other arguments regarding that order.
As a final point, we must address the circuit court‘s imposition of a strike for the dismissal of the underlying action. See
Affirmed in part; reversed in part.
BAKER, J., concurs without opinion.
HART, J., concurs in part; dissents in part.
JOSEPHINE LINKER HART, Justice, concurring in part and dissenting in part.
I agree that the circuit court properly dismissed the official capacity civil rights claims concerning the deficiencies in the handling of inmate food at the Varner Unit of the Arkansas Department of Correction. As alleged by Mr. Harmon, these practices do not rise to the level of cruel and unusual punishment. However, Mr. Harmon has sufficiently pled negligent-supervision claims against Dexter Payne, James Gibson, James Shipman, Yolanda Clark, and Laquista Swopes as well as their lack of entitlement to statutory immunity. I would therefore reverse and remand this case for further proceedings on the tort claims.
When reviewing a circuit court‘s decision on a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Biedenharn v. Thicksten, 361 Ark. 438, 206 S.W.3d 837 (2005). Furthermore, we liberally construe the facts in plaintiff‘s favor. Id. The majority has failed to follow our standard of review.
It is telling that the majority disposes of Mr. Harmon‘s tort claims in a single paragraph. Contrary to the cursory treatment that the majority affords Mr. Harmon‘s tort claims, these claims are substantial and sufficiently pled to at least survive a motion to dismiss.
In his pleading, Mr. Harmon states the duty of care required by the Department of Correction‘s administrative rules and regulations. He cites the exact requirements imposed by these regulations regarding the proper training, clothing, equipping, and supervision of prison personnel and prisoners involved with food service. He also documents the specific violations of these regulations by specific examples. As required by any tort case, he establishes the duty owed, the breach of that duty, and damages. Further, viewing the facts alleged in the complaint in the light most favorable to Mr. Harmon, as we must, Mr. Harmon establishes malice by the length of time that these violations were allowed to continue, as well as the fact that he availed himself of the prison grievance system without receiving relief. Viewed in the light most favorable to Mr. Harmon, these facts establish willful indifference on the part of the named Department of Correction employees. Accordingly, it is simply not correct when the majority states that disposing of the civil rights claim likewise disposes of the tort claim. This case should be reversed and remanded so that Mr. Harmon can pursue his tort claim.
Dexter Harmon, pro se appellant.
Leslie Rutledge, Att‘y Gen., by: Rosalyn Middleton, Ass‘t Att‘y Gen., for appellee.