Forrest Zayne Brown v. Alan Bargery

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0109P (6th Cir.)
File Name: 00a0109p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
FORREST ZAYNE BROWN ,
Plaintiff-Appellant,
S TEPHEN M ICHAEL
R ICHMOND , C HRISTOPHER
M ICHAEL C ROFT , and TONY
LYNN M EADOWS,
Plaintiffs,
v.
ALAN BARGERY ,
Defendant-Appellee.
;>

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No. 98-6481
Appeal from the United States District Court
for the Western District of Tennessee at Jackson.
No. 98-01217—James D. Todd, District Judge.
Submitted: February 2, 2000
Decided and Filed: March 27, 2000
Before: MERRITT, SILER, and MOORE, Circuit Judges.

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2 Brown, et al. v. Bargery No. 98-6481
_________________
COUNSEL
ON BRIEF: Forrest Zayne Brown, Chattanooga, Tennessee,
pro se.
MOORE, J., delivered the opinion of the court, in which
MERRITT, J., joined. SILER, J. (pp. 9-10), delivered a
separate dissenting opinion.
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OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Forrest Zayne
Brown, a Tennessee prisoner proceeding pro se and in forma
pauperis, appeals a district court order dismissing his 42
U.S.C. § 1983 civil rights claim as frivolous pursuant to 28
U.S.C. § 1915(e)(2). Because Brown’s complaint contains
factual allegations and legal theories that conceivably
implicate Eighth Amendment concerns, the district court
erred when it dismissed the complaint as frivolous pursuant
to § 1915(e)(2). Furthermore, we believe the error was not
harmless because the district court could not have properly
dismissed Brown’s complaint pursuant to § 1915(e)(2) for
failure to state a claim on which relief may be granted. Thus,
we REVERSE the district court’s judgment, and REMAND
the case to the district court for further proceedings consistent
with this opinion.
I. BACKGROUND
Brown and three other inmates at the Hardeman County
Correctional Facility brought this § 1983 suit against their
warden, Alan Bargery, seeking equitable relief on grounds
that the conditions at the prison violated their Eighth
Amendment rights. Plaintiffs alleged that the sleeping bunks
located in one of the prison’s housing units had been
improperly installed upside down, causing the inmates to slide

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10 Brown, et al. v. Bargery No. 98-6481
I have had to go to the extremes of taking an old piece of
sheet, ripping it into strips, and actually tying my
mattress onto the steel bunk so that it would no longer
slide off.
Thus, his bed has been taken care of. If the cruel and unusual
punishment here is allowing the mattresses to slide off the
steel bunks, then inmates can easily cure the problem by tying
the mattresses in the very creative way suggested by Brown,
or in some other fashion.
That leaves as an issue only the bolts which stick out of the
wall and upon which inmates occasionally scratch themselves.
I do not see how protruding bolts can constitute cruel and
unusual punishment, even if they stick out over a bunk. They
are not spikes and they do not seem to protrude for any great
distance, according to the diagram in the record.
The Constitution “does not mandate comfortable prisons.”
Rhodes v. Chapman, 452 U.S. 337, 349 (1981). The
“officials must ensure that inmates receive adequate food,
clothing, shelter, and medical care, and must ‘take reasonable
measures to guarantee the safety of the inmates.’” Farmer,
511 U.S. at 832 (quoting Hudson v. Palmer, 468 U.S. 517,
526-27) (1984)).
The officials in the institution involved in this case may
have been unwise or negligent, but their conduct has not risen
to the level of being deliberately indifferent under the Eighth
Amendment. Therefore, I would affirm the decision of the
district court.
No. 98-6481 Brown, et al. v. Bargery 3
1Brown may appeal the district court’s dismissal of the complaint as
frivolous even though the district court certified pursuant to 28 U.S.C.
§ 1915(a)(3) that an appeal could not be taken in good faith. See, e.g.,
McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997).
228 U.S.C. § 1915(e)(2) provides:
Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines
that–
(A) the allegation of poverty is untrue; or
(B) the action or appeal–
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
off their bunks and land onto the concrete floor. Plaintiffs
also alleged that the anchor bolts that fasten the bunks to the
wall improperly protruded into their sleeping area, which
could potentially cause an injury. Brown initially filed a
grievance with the prison’s review committee, but the
grievance was denied after prison officials claimed that the
sleeping bunks had been installed in accordance with the
manufacturer’s specifications.
On August 26, 1998, Brown and the other inmates filed a
motion to proceed in forma pauperis. Brown was the only
one of the inmates who properly completed and submitted an
in forma pauperis affidavit and a prison trust fund account
statement. On September 22, 1998, the district court
“screened” the case in accordance with the Prison Litigation
Reform Act of 1995 (“PLRA”), dismissing it sua sponte
pursuant to 28 U.S.C. § 1915(e)(2) on grounds that the Eighth
Amendment claim was frivolous. The district court also
certified pursuant to 28 U.S.C. § 1915(a)(3) that an appeal
could not be taken in good faith.1 Brown now appeals the
district court’s decision to dismiss his complaint as frivolous.
II. ANALYSIS
The district court granted Brown’s motion to proceed in
forma pauperis and then dismissed his complaint as frivolous
pursuant to 28 U.S.C. § 1915(e)(2).2 This court has held that

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4 Brown, et al. v. Bargery No. 98-6481
(iii) seeks monetary relief against a defendant who is immune
from such relief.
3The district court should also have applied the screening
requirements set forth in 28 U.S.C. § 1915A(b), which are virtually
identical to the screening requirements set forth in § 1915(e)(2). McGore
v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). Section 1915A
applies in the present case because Brown is a prisoner who seeks redress
from a government employee. 28 U.S.C. § 1915A(a).
a district court should only use § 1915(e)(2) to screen a
prisoner complaint in those instances where a prisoner is
proceeding in forma pauperis. See Benson v.O’Brian, 179
F.3d 1014 (6th Cir. 1999). Because Brown has requested
leave to proceed in forma pauperis, the district court properly
applied the screening requirements set forth in § 1915(e)(2)
to the allegations in this case.3
We review de novo a judgment dismissing a suit as
frivolous pursuant to §§ 1915(e)(2) and 1915A(b). McGore,
114 F.3d at 604. The Supreme Court has explained that a
complaint should be dismissed as frivolous only if it lacks an
arguable basis in law or fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989). A complaint lacks an arguable basis in law
or fact if it contains factual allegations that are “fantastic or
delusional” or if it is based on legal theories that are
indisputably meritless. Id. at 327-28; see also Lawler v.
Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990) (“Examples of
legal claims which are frivolous under Neitzke would be a
state prisoner’s assertion of an eighth amendment claim
stemming from the actions of a state corrections officer
against the United States Attorney General or a prisoner’s
assertion of a right to have a steak dinner once a week.”).
In Nietzke, the Supreme Court considered a district court’s
sua sponte dismissal of a plaintiff’s Eighth Amendment claim
on grounds that the claim was frivolous. The plaintiff in
Nietzke, an inmate in the custody of the Indiana Department
of Corrections, alleged that his Eighth Amendment rights had
been violated by prison officials who repeatedly denied his
No. 98-6481 Brown, et al. v. Bargery 9
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DISSENT
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SILER, Circuit Judge, dissenting. Although I agree that the
district court might have erroneously dismissed the case as
frivolous under 28 U.S.C. § 1915(e)(2), I feel that we should
nevertheless affirm the decision of the district court because
Forrest Zayne Brown, the plaintiff, failed to state a claim
upon which relief may be granted under either 28 U.S.C.
§ 1915(e)(2)(B)(ii) or 28 U.S.C. § 1915A(b)(1).
The Eighth Amendment only arises in prison conditions
when an official is deliberately indifferent “to a substantial
risk of serious harm to an inmate.” Farmer v. Brennan, 511
U.S. 825, 828 (1994). Even considering the evidence in the
light most favorable to Brown, as we must in a motion to
dismiss, I do not see that there was a substantial risk of
serious harm to Brown. The conditions of which he
complains are that the bunks are improperly installed in some
of the areas, including his cell in the prison, resulting in his
falling out of bed and skin abrasions from the bolts which
protrude from the wall near his bunk.
I do not question the subjective test which the majority
states is required, because Brown has apparently brought the
defective conditions to the attention of prison authorities.
However, the objective test set out in Farmer is the one
which fails in this case. This is a simple case of alleged
negligence. According to the district court, the plaintiffs
could file a claim against the state on a negligence theory
under Tennessee law, but a negligence claim is not actionable
under 42 U.S.C. § 1983. See Wilson v. Seiter, 501 U.S. 294,
298 (1991). Admittedly, the failure of the bunk as presently
installed without the lip on the upper side to retain the
mattress might cause mattresses to slip, when the inmate rolls
about in his bed. However, Brown’s original complaint
provided an excellent solution which any inmate who rolls
about in his bed could effect. In his complaint, he states:

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we must assume, for present purposes, that the beds in the
specified housing units were improperly installed upside
down, which would pose an unreasonable risk of future injury
by causing inmates to fall from their bunks while asleep and
by subjecting inmates to the hazards of rolling into sharp
protruding mounting bolt studs. Pls.’ Compl. at 2. Moreover,
we must assume – based on Brown’s allegations concerning
his repeated attempts to notify prison officials about the
conditions in his cell – that the warden knew about and
deliberately disregarded the risk to Brown’s health and safety.
See Pls.’ Compl. at 2-5. Thus, we hold that the district court’s
dismissal of Brown’s complaint as frivolous was not harmless
because the district court could not have properly screened
this case under § 1915(e)(2) even if the district court had
articulated as its theory for dismissing the complaint the
rationale of failure to state a claim on which relief may be
granted.
III. CONCLUSION
Because Brown’s complaint contains factual allegations
and legal theories that conceivably implicate Eighth
Amendment concerns, the district court erred when it
dismissed the complaint as frivolous pursuant to § 1915(e)(2).
Furthermore, we believe the district court could not have
properly dismissed Brown’s complaint pursuant to
§ 1915(e)(2) even on the basis of failure to state a claim on
which relief may be granted. Thus, we REVERSE the
district court’s judgment, and REMAND the case to the
district court for further proceedings consistent with this
opinion.
No. 98-6481 Brown, et al. v. Bargery 5
4Congress revised § 1915(d) and renumbered it as § 1915(e)(2) when
it enacted the Prison Litigation Reform Act of 1995. Although Congress
has made several substantive changes to § 1915 since the Supreme
Court’s decision in Nietzke, see, e.g., Benson, 179 F.3d at 1016, these
changes do not affect the Court’s analysis so far as the decision attempts
to clarify what is meant by the term “frivolous.”
requests for medical treatment. The district court screened
the case pursuant to 28 U.S.C. § 1915(d),4 dismissing the
complaint as frivolous after it determined that these
allegations merely “described a constitutionally
noncognizable instance of medical malpractice.” Nietzke, 490
U.S. at 321-22. In dismissing the complaint, the district court
equated the standard for frivolousness with the standard for a
dismissal for the failure to state a claim upon which relief
may be granted. On appeal, the Seventh Circuit reversed the
district court’s determination that the complaint was
frivolous, and a unanimous Supreme Court affirmed the
Seventh Circuit’s decision. The Court explained that “[w]hen
a complaint raises an arguable question of law which the
district court ultimately finds is correctly resolved against the
plaintiff, dismissal on Rule 12(b)(6) grounds is appropriate,
but dismissal on the basis of frivolousness is not.” Id. at 328.
In the present case, the district court determined that
Brown’s personal safety claims were legally frivolous because
his complaint did not satisfy the objective and subjective
components of an Eighth Amendment violation. Like the
district court in Nietzke, the district court in this case has
confused a dismissal on grounds that a complaint is frivolous
with a dismissal for the failure to state a claim upon which
relief may be granted. Indeed, it is important to remember
that Brown’s complaint is frivolous only if the legal theories
raised in the complaint are indisputably meritless or if the
factual contentions are fantastic or delusional. Here, Brown’s
claims regarding the improperly installed sleeping bunks
could conceivably implicate Eighth Amendment concerns.
See, e.g., Thaddeus-X v. Blatter, 175 F.3d 378, 402-03 (6th
Cir. 1999) (en banc) (holding that material issues of fact
precluded summary judgment on inmate’s Eighth Amendment

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6 Brown, et al. v. Bargery No. 98-6481
claims challenging the conditions of his confinement). Thus,
we conclude that the district court erred when it dismissed
Brown’s complaint as frivolous pursuant to § 1915(e)(2).
Furthermore, we believe that the district court’s decision to
dismiss Brown’s complaint as frivolous does not amount to
a harmless error because the district court could not have
properly dismissed Brown’s complaint pursuant to
§ 1915(e)(2) even if it had articulated as its theory that
Brown’s complaint failed to state a claim on which relief may
be granted. We review de novo a judgment dismissing a suit
for failure to state a claim upon which relief may be granted
pursuant to §§ 1915(e)(2) and 1915A(b), viewing all the facts
alleged in the complaint, as well as any inferences reasonably
drawn from those facts, in the light most favorable to the
plaintiff. McGore, 114 F.3d at 604. Dismissal of a complaint
for the failure to state a claim on which relief may be granted
is appropriate only if it appears beyond a doubt that the
plaintiff can prove no set of facts in support of his claim that
would entitle him to relief. See Sistrunk v. City of
Strongsville, 99 F.3d 194, 197 (6th Cir. 1996) (“A motion to
dismiss may be granted under Fed.R.Civ.P. 12(b)(6) ‘only if
it is clear that no relief could be granted under any set of facts
that could be proved consistent with the allegations.’”)
(quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)),
cert. denied, 520 U.S. 1251 (1997).
Brown has sufficiently stated an Eighth Amendment claim
if he has alleged facts that, if proven, would show that prison
officials acted with “deliberate indifference” towards
conditions at the prison that created a substantial risk of
serious harm. Farmer v. Brennan, 511 U.S. 825, 834 (1994);
see also Woods v. Lecureux, 110 F.3d 1215, 1222 (6th Cir.
1997). This test involves both an objective and subjective
component. The objective component requires an inmate to
show that the alleged deprivation is “sufficiently serious.”
Farmer, 511 U.S. at 834 (citations omitted). As the Supreme
Court explained in Farmer, “[T]he inmate must show that he
is incarcerated under conditions posing a substantial risk of
serious harm.” Id. To satisfy the subjective component, an
No. 98-6481 Brown, et al. v. Bargery 7
inmate must show that prison officials had “a sufficiently
culpable state of mind.” Id. (citations omitted). “In prison-
conditions cases that state of mind is one of ‘deliberate
indifference’ to inmate health or safety.” Id. (citations
omitted). Although the deliberate indifference standard
“describes a state of mind more blameworthy than
negligence,” this standard is satisfied 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. at 835, 837.
Here, Brown’s allegations regarding the improperly
installed sleeping bunks deal primarily with a single problem
at the prison: the unsafe sleeping environment in which the
improperly installed bunks caused inmates to slide off their
bunks and land on the concrete cell floor and subjected
inmates to the hazzards of rolling into protruding anchor bolt
studs. Pls.’ Compl. at 2. These allegations are analogous to
those made in Helling v. McKinney, 509 U.S. 25, 28 (1993),
a case in which an inmate brought a § 1983 claim against
prison officials, alleging that these officials had violated his
Eighth Amendment rights by forcing him to share a cell with
another inmate who smoked five packs of cigarettes a day.
The Supreme Court concluded that the inmate had sufficiently
alleged an Eighth Amendment claim because the Eighth
Amendment prohibits prison officials from exhibiting
deliberate indifference toward future health problems that an
inmate may develop as a result of current prison conditions.
Id. at 35. As the Court explained, “[A plaintiff] states a cause
of action under the Eighth Amendment by alleging that
[defendants] have, with deliberate indifference, exposed him
to levels of [Environmental Tobacco Smoke] that pose an
unreasonable risk of serious damage to his future health.” Id.
Like the inmate in Helling, the plaintiffs in the present case
have alleged facts that could conceivably show that the
warden acted with deliberate indifference towards future
health problems that the inmates may develop as a result of
the unsafe sleeping conditions in their housing cells. Indeed,

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