Flanory v. Bonn

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0125p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
-
JERRY FLANORY,
-
Plaintiff-Appellant,
-
-
No. 09-1161
v.
,
>
-
-
ALLEN BONN, Classification Director,
-
Newberry Corr. Fac. – sued in his individual
-
capacity; ROBERT TORP, Former Acting
Principal – sued in his individual capacity; -
-
-
JEFFREY WOODS, Former Acting Principal
-
and Deputy Warden – sued in his individual
-
capacity; LINDA TRIBLEY, Assistant Deputy
Warden of Housing & Programs – sued in her -
-
-
individual capacity; ALMA POTTS, Assistant
-
Resident Unit Supervisor – sued in his/her
-
individual capacity; NANCY MARSHALL,
Classification Director – sued in her -
-
Newberry Corr. Facility Warden – sued in his -
individual capacity; BARRY D. DAVIS,

-
-
individual capacity; JIM ARMSTRONG,
Grievances & Appeals – sued in his -
-
Defendants-Appellees. -
individual capacity,

-
N
Appeal from the United States District Court
for the Western District of Michigan at Marquette.
No. 08-00108—R. Allan Edgar, District Judge.
Submitted: March 11, 2010
Decided and Filed: May 6, 2010
*
Before: MARTIN and GIBBONS, Circuit Judges; MARBLEY, District Judge.

*
The Honorable Algenon L. Marbley, United States District Judge for the Southern District of
Ohio, sitting by designation.

1
No. 09-1161 Flanory v. Bonn, et al. Page 2

_________________

COUNSEL
ON BRIEF: Jerry Flanory, Flint, Michigan, pro se.

_________________

OPINION
_________________

MARBLEY, District Judge. Plaintiff-Appellant Jerry Flanory (“Flanory”), a
prisoner proceeding pro se, appeals the decision of the district court to dismiss his
Complaint for failure to state a claim against Defendants-Appellees Allen Bonn
(“Bonn”), Robert Torp (“Torp”), Jeffrey Woods (“Woods”), Linda Tribley (“Tribley”),
Alma Potts (“Potts”), Nancy Marshall (“Marshall”), Barry Davis (“Davis”), and Jim
Armstrong (“Armstrong”) (collectively, the “Defendants”). For the following reasons,
we REVERSE the judgment of the district court and REMAND the case.

I. BACKGROUND

Flanory is currently incarcerated at the Mound Correctional Facility, but his
claims pertain to events that took place while he was housed at the Newberry
Correctional Facility (“NCF”). On or about December 12, 2004, Flanory was
interviewed by Bonn, the Classification Director at NCF, for placement in the General
Equivalent Degree (“GED”) program at the facility. Flanory informed both Bonn and
Torp, the principal of NCF’s GED program, that he had obtained his GED from the
Sarvis Educational Center many years before, and that he had since obtained an
Associate Degree in General Studies from the Montcalm Community College. Flanory
further advised that verification of his educational history could be found in his
Presentence Investigation Report (“PSIR”). Torp informed Flanory that NCF policy
prohibits the use of the PSIR for verification of educational history. Linda Tribley, the
Assistant Deputy Warden at NCF, advised Flanory that it was his responsibility to
provide documentation showing his educational achievements. Notwithstanding the fact
No. 09-1161 Flanory v. Bonn, et al. Page 3

that he already had his GED, and over his objections, Flanory was assigned to the GED
program. Because he already had obtained his GED, Flanory refused to attend the class.

On January 4, 2005, Flanory filed a grievance on the issues of his GED,
Associate Degree, and PSIR, contesting the requirement that he participate in a GED
class, which he had already completed, for a degree he had already obtained. On
January 5, 2005, Flanory signed an Assignment Waiver Form to be removed from the
GED program and the school roster. On January 28, 2005, Bonn placed Flanory on
room restriction for waiving the GED program. Room restriction disqualified Flanory
from indigent status. As a result, he was not able to purchase personal hygiene items,
including toothpaste. In response to Flanory’s grievance concerning the situation, Davis,
NCF Warden, denied Flanory’s grievance appeal, stating that Flanory would be
ineligible for indigent status for a period of 12 months, and that certain hygiene items,
including bars of soap, shampoo, tooth swabs, and toilet paper, were available in the
housing units. Flanory then requested these items from Potts, NCF Assistant Resident
Unit Supervisor, who responded that the items were not available. Toothpaste was
among the hygiene items listed by Davis as only available for purchase in the prisoner
store.

In October 2005, Flanory met with the new principal of NCF’s GED program,
Mr. Belles, who then contacted Montcalm Community College and verified Flanory’s
Associate Degree. On November 10, 2005, Flanory was removed from room restriction
and added to the work pool. After securing funds from his job assignment, Flanory
requested his records from the Sarvis Educational Center. On April 18, 2006, Flanory
received documentation showing that he had earned a GED.

Flanory’s placement on room restriction and his loss of indigent status caused
him to be without toothpaste beginning in January 2005, for a period of 337 days.
Flanory had undergone a dental examination in October 2004, which revealed no dental
problems. In September 2005, Flanory experienced a toothache. After an examination,
Flanory was diagnosed with peridontal disease of the gums, and one tooth was extracted.
No. 09-1161 Flanory v. Bonn, et al. Page 4

On May 1, 2008, Flanory initiated this action, which sought compensatory and
punitive damages, alleging that his dental health declined because he was wrongfully
placed on room restriction and denied indigent status, and he was not otherwise provided
with dental hygiene supplies. Flanory claimed that Defendants violated the Privacy Act,
5 U.S.C. §§ 552a(e)(5), (g)(1)(c) and (g)(4), by failing to verify his educational
credentials, which caused Defendants to place him on room restriction and deny him
indigent status for approximately nine months. He further alleged that Defendants
violated his Eighth Amendment right to be free from cruel and unusual punishment by
denying his access to dental hygiene supplies, including toothpaste, which led to his gum
disease.

On August 27, 2008, Magistrate Judge Greeley issued a Report and
Recommendation that Flanory’s Complaint be dismissed for failure to state a claim. On
September 17, 2008, Flanory filed Objections to the Report and Recommendation. In
his objections, Flanory conceded his Privacy Act claim. On January 5, 2009, the district
court issued an Order approving and adopting the Report and Recommendation. Flanory
v. Bonn, No. 2:08-cv-108, 2009 WL 33472 (W.D. Mich. Jan. 5, 2009). Flanory then
timely filed this appeal.

II. JURISDICTION

Because Flanory has appealed from a final judgment that disposed of all of his
claims, we have jurisdiction based on 28 U.S.C. § 1291. This case has been referred to
a panel of the court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. Upon
examination, this panel unanimously agreed that oral argument is not needed. Fed. R.
App. P. 34(a).

III. STANDARD OF REVIEW

The Prison Litigation Reform Act, Pub. L. No. 103-134, 110 Stat. 1321 (1996),
requires dismissal of any prisoner action brought under federal law if the complaint is
frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks
monetary relief from a defendant immune from such relief. 28 U.S.C. §§ 1915(e),
No. 09-1161 Flanory v. Bonn, et al. Page 5

1915A; 42 U.S.C. § 1997e. We review de novo a district court’s dismissal of a
complaint pursuant to 28 U.S.C. §§ 1915(e), 1915A, and 42 U.S.C. § 1997e. Grinter v.
Knight, 532 F.3d 567, 571-72 (6th Cir. 2008). “A motion to dismiss for failure to state
a claim is a test of the plaintiff’s cause of action as stated in the complaint, not a
challenge to the plaintiff’s factual allegations.” Golden v. City of Columbus, 404 F.3d
950, 958-59 (6th Cir. 2005). A complaint fails to state a claim upon which relief could
be granted when it is clear that the plaintiff can prove no set of facts consistent with the
allegations that would entitle him to relief. Jones v. City of Carlisle, 3 F.3d 945, 947
(6th Cir. 1993). A complaint that suggests “the mere possibility of misconduct” is
insufficient; rather, the complaint must state “a plausible claim for relief.” Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1950 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S 544, 556
(2007)). To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege a
violation of a right secured by the federal Constitution or laws and must show that the
violation was committed by a person acting under color of state law. West v. Atkins, 487
U.S. 42, 48 (1988); Street v. Corrs. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996).

IV. ANALYSIS

Since Flanory conceded his Privacy Act claim earlier in the litigation, the only
remaining claim is the alleged Eighth Amendment violation. The Eighth Amendment
prohibits prison officials from “unnecessarily and wantonly inflicting pain” on prisoners
by acting with “deliberate indifference” to prisoners’ serious medical needs. Blackmore
v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir. 2004) (quoting Estelle v. Gamble, 429
U.S. 97, 104 (1976)). Failure to provide medical care may rise to the level of a violation
of the Cruel and Unusual Punishments Clause of the Eighth Amendment where objective
and subjective requirements are met. Harrison v. Ash, 539 F.3d 510, 517-18 (6th Cir.
2008); Farmer v. Brennan, 511 U.S. 825, 833 (1994).

To satisfy the objective component, the injury must be sufficiently serious.
Wilson v. Seiter, 501 U.S. 294, 297 (1991) (stating that Eighth Amendment is implicated
by the “unnecessary and wanton infliction of pain” and not “inadvertent failure to
provide adequate medical care”); Estelle, 429 U.S. at 106 (“In order to state a cognizable
No. 09-1161 Flanory v. Bonn, et al. Page 6

claim, a prisoner must allege acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs.”); Talal v. White, 403 F.3d 423, 426
(6th Cir. 2005) (requiring that the prisoner demonstrate more than “mere discomfort or
inconvenience”). In the context of “conditions of confinement” cases, the Eighth
Amendment is concerned only with “deprivations of essential food, medical care or
sanitation” or “other conditions intolerable for prison.” Rhodes v. Chapman, 452 U.S.
337, 347 (1981); see also Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000) (citing
Farmer, 511 U.S. at 834) (“[T]he inmate must show that he is incarcerated under
conditions posing a substantial risk of serious harm.”).

Dental needs fall into the category “of serious medical needs” because “[d]ental
care is one of the most important needs of inmates.” McCarthy v. Place, 313 F. App’x
810, 814 (6th Cir. 2008) (quoting Ramos v. Lamm, 639 F.2d 559, 576 (10th Cir. 1980)).
The Second Circuit has recognized that “[a] cognizable claim regarding inadequate
dental care, like one involving medical care,” is “based on various factors, such as the
pain suffered by the plaintiff, the deterioration of the teeth due to a lack of treatment, or
the inability to engage in normal activities.” Chance v. Armstrong, 143 F.3d 698, 703
(2d Cir. 1998). The Seventh Circuit has recognized the ability of prisoners to state a
cognizable Eighth Amendment claim where they were denied oral hygiene supplies,
specifically toothpaste. Board v. Farnham, 394 F.3d 469, 481 (7th Cir. 2005). In Board,
the court found that certain prison officials were not entitled to qualified immunity when
they denied prisoners toothpaste for a three-and-a-half week period. Id. at 481-82.
Additionally, the prisoners alleged that they had requested toothpaste approximately 15
times during the three-and-a-half week period. Id. at 481.

We have indicated that even though the physical injury required by § 1997e(e)
for a § 1983 claim need not be significant, it must be more than de minimis for an Eighth
Amendment claim to go forward. See, e.g., Adams v. Rockafellow, 66 F. App’x 584, 586
(6th Cir. 2003) (citing Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) and Luong
v. Hatt, 979 F. Supp. 481, 485 (N.D.Tex. 1997)); Corsetti v. Tessmer, 41 F. App’x 753,
755 (6th Cir. 2002) (citing Siglar and Luong in finding that two small bruises and minor
No. 09-1161 Flanory v. Bonn, et al. Page 7

cuts were de minimis injury); Styles v. McGinnis, 28 F. App’x 362, 364 (6th Cir. 2001)
(citing Siglar); Benson v. Carlton, No. 99-6433, 2000 WL 1175609, at * 1 (6th Cir. Aug.
9, 2000) (citing Siglar in finding that prisoner’s “whirling sensation” in head after
missing a meal was de minimis injury); see also Hudson v. McMillian, 503 U.S. 1, 9-10
(1992) (holding that “cruel and unusual punishment necessarily excludes from
constitutional recognition de minimis uses of physical force”) (quotation and citation
omitted). Courts have not found the objective component satisfied where the deprivation
of hygiene items was temporary. Harris v. Fleming, 839 F.2d 1232, 1235-36 (7th Cir.
1988) (no constitutional violation where prison officials failed to provide prisoner with
toilet paper for five days, and with soap, toothbrush, and toothpaste for ten days)); see
also McNatt v. Unit Manager Parker, No. 3:99-cv-1397, 2000 WL 307000, at *4
(D.Conn. Jan.18, 2000) (no Eighth Amendment violation occurred when inmates
endured, among other deprivations, no toiletries or clothing for six days). Given that the
deprivation of toothpaste in this case allegedly spanned 337 days, after which Flanory
was diagnosed with peridontal disease of the gums and one tooth was extracted,
Flannory has shown both that the deprivation was not temporary and that he suffered
physical injury.

The subjective component requires a showing that prison officials knew of, and
acted with deliberate indifference to, an inmate’s health or safety. Wilson, 501 U.S. at
302-03; Talal, 403 F.3d at 426. Deliberate indifference “entails something more than
mere negligence.” Farmer, 511 U.S. at 835. An inmate must show that prison officials
had “a sufficiently culpable state of mind” in denying medical care. Brown, 207 F.3d
at 867 (citing Farmer, 511 U.S. at 834). In Brown, we noted that “[i]n prison-conditions
cases that state of mind is one of deliberate indifference to inmate health or safety.” Id.
This standard is met if “the official knows of and disregards an excessive risk to inmate
health or safety; the official must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” Id. (quoting Farmer, 511 U.S. at 837); see also Grose v. Caruso, 284 F.
App’x 279, 283 (6th Cir. 2008) (finding that prisoner’s allegations that officials failed
to provide training to prevent the provision of inadequate medical care and implicitly
No. 09-1161 Flanory v. Bonn, et al. Page 8

authorized unconstitutional conduct should survive a motion to dismiss); Pack v. Martin,
174 F. App’x 256, 259 (6th Cir. 2006) (“The party asserting a claim that medical care
received was lacking or inadequate bears the burden of proving that the decision to
provide no, or substandard, medical care was deliberate or knowing.”); Davis v. Powell,
110 F. App’x 660, 662 (6th Cir. 2004) (finding that prison officials were not deliberately
indifferent to prisoner’s dental needs when prisoner was actively receiving ongoing
dental care from physicians at the prison facility).

The Supreme Court has found “great difficulty agreeing that prison authorities
may not be deliberately indifferent to an inmate’s current health problems but may
ignore a condition of confinement that is sure or very likely to cause serious illness and
needless suffering the next week or month or year.” Helling v. McKinney, 509 U.S. 25,
33 (1993) (finding that prisoner’s involuntary exposure to cellmate’s environmental
tobacco smoke created an unreasonable health risk, thus subjecting him to cruel and
unusual punishment). In Helling, the Supreme Court explicitly rejected “petitioners’
central thesis that only deliberate indifference to current serious health problems of
inmates is actionable under the Eighth Amendment.” Id. at 34.

Flanory alleges that he was completely denied toothpaste for 337 days; and this
Court has found dental health to be of great importance. McCarthy, 313 F. App’x at
814. A prisoner whose inability to purchase hygiene items results from his rejection of
educational status satisfies the objective and subjective requirements of an Eighth
Amendment violation when he alleges a complete deprivation and shows that the
deprivation resulted from a deliberate indifference to hygiene needs.1 Indeed, other
circuits have found cognizable Eighth Amendment claims where, as here, inmates have

1
Where plaintiffs have failed to allege a deprivation of hygiene items resulting from deliberate
indifference, we have found that their claims do not rise to the level of an Eighth Amendment violation.
See Argue v. Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003) (holding that a prisoner had failed to state
an Eighth Amendment claim because he did not allege a complete denial of hygiene products or that the
deprivation occurred out of indifference to his hygiene needs); Moore v. Chavez, 36 F. App’x 169, 171 (6th
Cir. 2002) (finding that the plaintiff had failed to allege that “he suffered extreme discomfort due to his
inability to purchase the items or that he was completely denied the basic elements of hygiene”); see also
Brown v. Brown, 46 F. App’x 324, 325-26 (6th Cir. 2002) (holding that a prisoner who was merely
inconvenienced because he was unable to purchase personal hygiene supplies for several months due to
a hold on his account failed to state an Eighth Amendment claim); Brown v. Crowley, No. 99-2216, 2000
WL 1175615, at *3 (6th Cir. Aug. 10, 2000) (“Brown’s allegations did not show that the defendants
knowingly forced him to go without shampoo and toothpaste.”).
No. 09-1161 Flanory v. Bonn, et al. Page 9

been denied toothpaste. See Board, 394 F.3d at 481 (recognizing the ability of prisoners
to state a cognizable Eighth Amendment claim where they were denied toothpaste); see
also Chance, 143 F.3d at 703 (holding that the plaintiff’s Eighth Amendment claim for
inadequate dental care survived a motion to dismiss where he “alleged that, as the result
of the defendants’ actions, he suffered extreme pain, his teeth deteriorated, and he [had]
been unable to eat properly”). Here, Flannory also alleges not only a toothache and
resulting tooth extraction, but also a gum disease that developed as a result of not having
had toothpaste with which to brush his teeth for almost a year. Denying an inmate
toothpaste for 337 days bespeaks an indifference to basic hygiene needs. In Board, the
Seventh Circuit found an Eighth Amendment violation when prisoners went without
toothpaste for 3 1/2 weeks while being held in a jail for 126 days awaiting trial. Board,
394 F.3d at 473. This time period pales in comparison to Flanory’s deprivation. Also,
Flanory’s education classification involved an Associate Degree and GED, both of
which were documented in the PSIR and were independently verified.

Flanory’s complete deprivation of toothpaste for 337 days and resulting health
problems amount to more than a mere inconvenience or a harmless deprivation of
hygiene products, which would be insufficient to state an Eighth Amendment claim. See
Moore, 36 F. App’x at 171; Argue, 80 F. App’x at 430. Further, the responses that
Flanory received to his various grievances show that prison officials were aware that
Flanory was without toothpaste as a result of his losing indigent status. Prison officials
were also aware that the only way for Flanory to obtain toothpaste would be for Flanory
to purchase the item from the prison store. Indeed, Davis stated as much in his written
response to Flannory’s second-step grievance when he wrote: “[b]ars of soap, shampoo,
tooth swabs, and toilet paper are available in the housing units. The other hygiene items
are available for purchase in the prisoner store.” (R. 1: Complaint Exs. p. 9.). We have
recognized an Eighth Amendment violation where the plaintiff can show an intent to
inflict harm or punishment because the named defendants were involved in the denial
of indigent status that resulted in the deprivation of hygiene items. Crowley, No. 99-
2216, 2000 WL 1175615, at *3 (“Nothing indicates that Brown was deliberately denied
shampoo or toothpaste by any named defendant who sought to punish him.”).
No. 09-1161 Flanory v. Bonn, et al. Page 10

We are aware of cases within our circuit that have reached a contrary conclusion
where a prisoner has rejected an education classification, but we find them to be
distinguishable. Moore, 36 F. App’x at 171; Argue, 80 F. App’x at 430. Moore
involved a prisoner who refused to take a qualifying exam, and was therefore denied
prison employment. Moore, 36 F. App’x at 170. The plaintiff in Moore, however,
alleged neither a complete denial of the basic elements of hygiene nor any resulting
serious discomfort. Id. at 170-71. Argue also involved a prisoner whose indigent status
had been revoked after he rejected an education classification and whose GED was never
verified. Argue, 80 F. App’x at 428 n.2. In Argue, we found that the prisoner had failed
to state an Eighth Amendment claim because he did not allege a complete denial of
hygiene products or that the deprivation occurred out of indifference to his hygiene
needs. Id. at 430. Additionally, the prisoner in Argue did not allege that he had suffered
any harm because he had been denied hygiene products. Id.

Flanory has alleged that he was completely denied certain hygiene items and that
he specifically was without toothpaste for a period of 337 days. Flanory has also alleged
that Defendants were aware that he was without toothpaste and were deliberately
indifferent to his hygiene needs. He has also shown an injury in that he was diagnosed
with peridontal disease of the gums and had a tooth extracted. In his Complaint, Flanory
has made allegations which satisfy the objective and subjective components required for
an Eighth Amendment violation. Therefore, Flanory has not failed to state a claim upon
which relief could be granted. Flanory’s Eighth Amendment claim was improperly
dismissed.

V. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s dismissal of
Flanory’s Eighth Amendment claim and REMAND the case.