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Jenell B. Moore v. Tom Mitchell

September 10, 2012

JENELL B. MOORE, PLAINTIFF,
v.
TOM MITCHELL, RON HATTON, AND JAMES N. CROSS, DEFENDANTS.



The opinion of the court was delivered by: Michael J. Reagan United States District Judge

MEMORANDUM AND ORDER REAGAN, District Judge:

Plaintiff Jenell B. Moore, a federal inmate currently confined at the Federal Correctional Institution in Greenville, Illinois, brings this action for alleged deprivations of his constitutional rights. On Plaintiff's complaint form, he was given the choice to label this pro se action either as a civil-rights complaint under 42 U.S.C § 1983 as a state prisoner; a civil-rights complaint under 28 U.S.C. § 1331 as a federal prisoner; or a civil complaint under the Federal Tort Claims Act or other law (Doc. 1, p. 1). He checked both the § 1983 and § 1331 choices. The Clerk of Court labeled the action a § 1331 claim because Plaintiff is a federal inmate. As the Court will discuss below, however, the allegations in the complaint sound in negligence, indicating Plaintiff should be bringing this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346, 2671--2680. The Court will conduct its preliminary review of the complaint under

28 U.S.C. § 1915A, which provides:

(a) Screening.- The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.

(b) Grounds for Dismissal.- On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-

(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true, Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of the plaintiff's claim, Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, courts "should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements." Brooks, 578 F.3d at 581. At the same time, however, the factual allegations of a pro se complaint are to be construed liberally. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir.2009).

The Complaint

On the afternoon of July 27, 2011, Plaintiff was working as a utility worker in the Food Service Department at the Federal Correctional Institution in Greenville, Illinois. The Food Service Administrator, Tom Mitchell, ordered an inmate named Jones to dispose of all "Hot Bio-Hazardous Waste Chemicals and Materials" (oil and grease) from the fryer area in the kitchen.

The Assistant Food Service Administrator, Ron Hatton, ordered Plaintiff to assist Jones. Plaintiff was not given any safety equipment and had not been trained to remove such waste. As Hatton stood nearby and supervised, Jones scooped up the waste and poured it into a large plastic container. Jones was ordered to have Plaintiff help move the plastic container. When they picked it up, the bottom melted away and hot waste spilled onto Plaintiff's right leg, injuring his leg, foot, and ankle. Plaintiff seeks $25,000 from each defendant and requests a trial by jury.

Discussion

Although Plaintiff calls his complaint § 1983 or § 1331 civil-rights action, it is a negligence claim. Plaintiff outlines the elements of negligence at common law and says Defendants were negligent and breached their duty to, among other things, ensure that Plaintiff was provided with training to handle hot chemicals and materials.

Federal prisoners may bring suit under the FTCA for injuries sustained through the negligent acts of prison officials. Palay v. United States, 349 F.3d 418, 425 (7th Cir.2003) (discussing United States v. Muniz, ...


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