                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

__________________________________________
                                          )
CLARENCE SMITH-BEY,                       )
                                          )
             Plaintiff,                   )
                                          )
      v.                                  )                 Civil Action No. 09-0702 (PLF)
                                          )
CCA/CTF, et al.,                          )
                                          )
             Defendants.                  )
__________________________________________)


                                           OPINION

               Plaintiff Clarence Smith-Bey is an inmate at the Correctional Treatment Facility

(“CTF”), a jail facility located in Washington, D.C., and privately operated by Corrections

Corporation of America (“CCA”) pursuant to a contract with the District of Columbia. Food

services at CTF are provided by Aramark Food Corporation (“Aramark”).1 Mr. Smith-Bey has

named CTF, CCA, and Aramark as defendants in this case, along with CTF/CCA employees

Desandra Peace, Ifeanyi Akas, Shameka Bivens, and Walter Fulton.

               Mr. Smith-Bey, proceeding pro se, alleges that the kitchen at CTA is so poorly

maintained and infested with vermin that being forced to eat food prepared there amounts to

cruel and unusual punishment inflicted in violation of the Eighth Amendment to the United



       1
               Mr. Smith-Bey identified CTF’s food service provider as “Aramark Food Corp.”
in his complaint. See Complaint at 1. According to Aramark’s counsel, however, there is no
entity known as “Aramark Food Corp.” See Aramark Food Corp.’s Motion to Dismiss and/or
Quash Service at 1. Mr. Smith-Bey therefore has moved to amend his complaint to state claims
against “Aramark Correctional Services, LLC” instead of “Aramark Food Corp.” Plaintiff’s
Motion to Correct Title of Defendant[’]s Name at 1. Because the Court dismisses all of Mr.
Smith-Bey’s claims on other grounds, any dispute over Aramark’s correct name is moot.
States Constitution. He brings his claims under 42 U.S.C. § 1983 and seeks injunctive relief and

monetary damages in the amount of $750,000. Two motions to dismiss, one brought by Aramark

and the other by all defendants except Aramark (“the CCA defendants”), are currently pending

before the Court. Also pending are the following motions filed by Mr. Smith-Bey: (1) a motion

“to correct title of defendant[ Aramark’s] name,” (2) a motion “to grant relief from CCA/CTF

and Aramark Correction[al] Services,” and (3) a motion “for this Court to respond.” For the

reasons discussed below, the Court will grant the motion to dismiss filed by the CCA defendants

and deny all other pending motions as moot.2


                                        I. BACKGROUND

               According to the complaint, on February 3, 2009, Mr. Smith-Bey was eating his

dinner in CTF when he found a dead cockroach in his food. See Compl. at 5. In accordance with

the prison’s internal grievance procedures, he submitted an “informal resolution form” to prison

administrators on February 6, 2009, stating that “I had a roach in my beans and Spanish rice

Tuesday. I did tell the officer, I threw up my food by putting my right index finger down my

throat. The officer[’s] name is Officer Akas.” Def. Mot., Exhibit 1, Attachment B.

               Mr. Smith-Bey alleges that on February 18, 2009, he found a second dead

cockroach in his food. He submitted a second informal resolution form, stating, “I had a dead

roach in my oatmeal, I notice[d] it after eating half of the oatmeal. I almost ate the roach. This is


       2
                The papers submitted by the parties and reviewed by the Court include: plaintiff’s
complaint (“Compl.”), the CCA defendants’ motion to dismiss (“Def. Mot.”), plaintiff’s
“memorandum of points and authorities to support civil complaint” (“Pl. Mem.”), plaintiff’s
memorandum of points and authorities in support of his motion to “challenge the oaths of the
affidavit” (“Pl. Resp.”), and plaintiff’s “motion to grant relief from CCA/CTF and Aramark
Correction Services LLC” (“Mot. for Relief”).

                                                 2
the second time. Officer Peace witness[ed] the roach on the spoon when I showed her.” Def.

Mot., Exhibit 1, Attachment C. A prison official responded on the same form by noting that

“Terminix pest control spray[s] in the culinary area once a week. All food trays are washed at

140 to 160 degrees. All tray carts are washed with hot water and liquid sanitizer. And the

culinary area is cleaned and sanitize[d] after every meal line.” See id.

               On February 26, 2009, Mr. Smith-Bey submitted a third informal resolution form,

stating that “[o]n Feb. 18 I was eating my oatmeal and discovered a [r]oach after eating half of

the oatmeal. I showed the roach to Officer Peace, she made a [n]otation in the log [b]ook. This

was the second time in two weeks period. The [f]irst time was Feb. 3, the second was Feb. 18,

200[9]. The [f]irst time [was] officer Akas.” Compl., Ex. 2 at 1. A prison official responded on

the same form by noting, “I apologize for this unfortunate incident. We continue to work with

Terminex Weekly (the[y] come to spray and fog the culinary on Wednesday). Inmates who

experience problems [] are certainly not expected to eat the food. Please show the tray to the

officer as you did and you will be re[-]served. Thank you for making us aware of this incident.”

Id. at 2.

               Pursuant to CTF policy, the next step in the grievance process after submitting an

informal resolution form is submission of a formal grievance. See Def. Mot., Exhibit 1 ¶ 8. Mr.

Smith-Bey did not complete a formal grievance form after submitting any of the three informal

resolution forms that he filled out, but the parties disagree as to why. The defendants contend

that plaintiff was offered a formal grievance form, but declined to accept it. See id. ¶ 15. Mr.

Smith-Bey alleges that he was never given the form although he requested it on at least three




                                                 3
separate occasions. Pl. Resp. at 7. He maintains that CTF intentionally prevented him from

completing the administrative process. Id., Exs. C-E.

               Having failed, for whatever reason, to exhaust CTF’s internal grievance process,

Mr. Smith-Bey filed the complaint in this action on April 15, 2009. The first part of his

complaint appears on a form provided for use by prisoners who wish to allege a violation of their

civil rights. See Compl. at 1. In response to the prompt, “State here [as] briefly as possible the

facts of your case,” Mr. Smith-Bey wrote:

               On Feb. 3, [20]09 I was eating Dinner, after eating halfway through
               my meal I located a dead roach in my beans. I told Officer Akas,
               and he said the roaches are real bad in the kitchen.

               On Feb. 18th I was eating my breakfast, and after eating almost all
               of my oatmeal, a roach dead was found in my food. This was a
               large roach, I showed it to Officer Peace who was on duty. She log
               it in the logbook, and [two other inmates] also are witness[es].

Id. at 5. In a handwritten complaint attached to his form complaint, Mr. Smith-Bey again

described the two occasions on which he had allegedly discovered a roach in his food, but this

time expanded his claims to include complaints about the condition of the kitchen: “The food

cart that house[s] the food trays, it should have a door that keeps the air and roaches out. The

mice and roaches come all upon the assembly line when preparing the food.” Id. at 7.

               Attached to the complaints was a handwritten letter addressed to this Court by Mr.

Smith-Bey. In that letter the plaintiff did not mention finding a dead roach in his food, but

instead made even broader claims regarding the condition of the kitchen at CTF: “The culinary is

a health hassard [sic] w/ roaches, mice, bugs, foul smell. No regard for HACCP guidelines.

Temperature log/guidelines. Eating equipment a disaster.” Compl., Ex. A at 1. He added,



                                                 4
“Roaches and mice and other bugs still control the kitchen, along with poor food handling

skills.” Id.

               In July of 2009, Mr. Smith-Bey filed a motion “to grant relief from CCA/CTF and

Aramark Correction Services LLC” in which his claims evolved further. He contended that “the

kitchen is infested with insects, roaches, flies, spiders, daddy long legs, mice, rats, etc. The

insects get in the food cart, and they also climb up on the assembly line where the food is being

prepared. . . . CCA officers are right there to witness the cruel behavior that continues . . . daily.”

Mot. for Relief at 1.


                                          II. DISCUSSION

               In their motion to dismiss, the CCA defendants make three arguments. First, they

argue that Mr. Smith-Bey’s claims must fail because he has not exhausted available

administrative remedies. Def. Mot. at 6-8. Second, they argue that the plaintiff has failed to

allege facts constituting an Eighth Amendment violation. Id. at 8-11. Third, they argue that even

if the plaintiff’s Eighth Amendment rights were violated, he is not entitled to money damages

because he did not suffer physical injury. Id. at 11-12. Because the Court concludes that the first

two issues are dispositive in this matter, it does not address the third.


                          A. Failure to Exhaust Administrative Remedies

               The defendants contend that by not completing CTF’s internal grievance process

with regard to any of his three informal complaints, Mr. Smith-Bey failed to exhaust his

administrative remedies. Def. Mot. at 7-8. The plaintiff counters that defendants’ own acts and

omissions are to blame for his inability to exhaust, and that his claims therefore should not be


                                                   5
rejected on that ground. Pl. Resp. at 5. The Court finds this dispute irrelevant, however, because

Mr. Smith-Bey has not even initiated the grievance process with regard to his most serious

claims.


                                      1. Standard of Review

               The defendants raise the exhaustion issue in their motion to dismiss, but should

have done so in a motion for summary judgment. Failure to exhaust “is an affirmative defense,”

and “inmates are not required to specially plead or demonstrate exhaustion in their complaints.”

Jones v. Bock, 549 U.S. 199, 216 (2007). Where, as here, the failure to exhaust is not apparent

from the face of the complaint, the defense must be raised and supported with record evidence on

a motion for summary judgment. See, e.g., Shane v. United States, Civil Action No. 07-0577,

2008 WL 101739, at *7 (D.D.C. Jan. 9, 2008).

               In this case, the defendants have attached to their motion to dismiss various

affidavits and other documents supporting their contention that Mr. Smith-Bey did not follow the

prison’s procedures for filing grievances. See, e.g., Def. Mot., Ex. 1, Attachments A-D. Mr.

Smith-Bey has responded by filing a slew of opposing documents, including a “motion to

challenge the oaths of the affidavit” in which he attempts to refute point-by-point various

statements made by Joyce Allen, CTF’s grievance officer, in an affidavit submitted by the

defendants. See Pl. Resp. at 1-9. He has also submitted in support of his arguments regarding

exhaustion a letter from another inmate and a copy of an “inmate request slip” purporting to

show that Mr. Smith-Bey requested formal grievance forms from CTF on August 2, 2009. See




                                                 6
id., Exs. C, F. Under such circumstances, the Court will treat the pending motion to dismiss as a

motion for summary judgment. See FED . R. CIV . P. 12(d).

                “[W]here both parties submit matieral outside the pleadings and the parties are not

taken by surprise or deprived of a reasonable opportunity to contest facts averred outside the

pleadings and the issues involved are discrete legal issues, the court may convert [a motion to

dismiss] to a motion for summary judgment without providing notice or the opportunity for

discovery to the parties.” Citizens for Responsibility & Ethics in Washington v. Bd. of

Governors of the Fed. Reserve Sys., 669 F. Supp. 2d 126, 128-29 (D.D.C. 2009) (internal

quotation marks and citation omitted). In this instance, the parties would not be aided by an

additional opportunity to submit documents in support of their arguments; both plaintiff and

defendants have already filed supporting exhibits, and the only facts upon which the Court must

rely to reach its decision are not in dispute. See infra at 8.

                Summary judgment shall be granted if the pleadings ... “and any affidavits show

that that there is no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” FED . R. CIV . P. 56(c). Material facts are those that “might affect

the outcome of the suit under the governing law. . . .” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). When considering a summary judgment motion, “the evidence of the non-

movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255;

see also Washington Post Co. v. Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C.

Cir.1989). The non-moving party's opposition, however, must consist of more than mere

unsupported allegations or denials and must be supported by affidavits or other competent




                                                   7
evidence setting forth specific facts showing that there is a genuine issue for trial. See FED . R.

CIV . P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).


                        2. Plaintiff’s Failure to Exhaust Most of His Claims

       The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought

with respect to prison conditions under section 1983 of this title, or any other Federal law, by a

prisoner confined in any jail, prison, or other correctional facility until such administrative

remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The exhaustion requirement of

Section 1997e(a) is mandatory and “applies to all prisoners seeking redress for prison

circumstances or occurrences.” Porter v. Nussle, 534 U.S. 516, 520 (2002). Section 1997e(a)

“afford[s] corrections officials time and opportunity to address complaints internally before

allowing the initiation of a federal case,” and, where possible, to “satisfy the inmate, thereby

obviating the need for litigation.” Id. at 524-25. If an inmate fails to exhaust one of more

discrete claims, the PLRA requires only that the unexhausted claims be dismissed, not the

complaint in its entirety. Jones v. Bock, 549 U.S. at 220-22.

               While Mr. Smith-Bey has vehemently denied the defendants’ claims that

additional, unexhausted administrative remedies were available to him, see Pl. Resp. at 1-9, he

does not dispute the defendants’ descriptions of the three informal resolution forms that he

completed or the accuracy of the copies of those forms that are attached to the defendants’

motion. See Def. Mot., Ex. 1, ¶¶ 12-14; id., Ex. 1, Attachments B-C. Indeed, Mr. Smith-Bey

himself attached a copy of the third of those forms to his complaint. See Compl., Ex. 2. It is

evident from the face of those informal resolution forms that the plaintiff only initiated the



                                                  8
grievance process with respect to his complaints about finding a cockroach in his food on two

occasions. He never presented to prison administrators his broader claims regarding the litany of

unsanitary conditions that he now alleges are present in the prison’s kitchen.

               Mr. Smith-Bey’s complaint and subsequent filings make a large number of claims

that were not raised or even hinted at in his informal grievances. Such claims include his

contentions that (1) a prison official acknowledged that “the roaches are bad” in the kitchen and

told the plaintiff that if he did not like the food in the kitchen, he could purchase food from the

commissary kitchen instead, Mot. for Relief at 1; (2) CTF’s kitchen is infested with cockroaches,

mice, spiders, and other vermin, id.; (3) the food at CTF is contaminated, tastes bad, and is often

cold, Pl. Mem. at 2; (4) the kitchen does not conform to applicable regulations and is a health

hazard, Compl., Ex. A; and (5) the food is prepared in generally unsanitary conditions and the

kitchen workers disregard sanitation procedures. Pl. Mem. at 2.

               Mr. Smith-Bey’s modest complaints about two cockroaches were not sufficient to

put prison officials on notice as to the much graver claims that he has raised in his complaint and

subsequent filings. “The level of detail necessary in a grievance to comply with the grievance

procedures will vary from system to system and claim to claim, but it is the prison's

requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones v.

Bock, 549 U.S. at 218. Here, the best indicator of the level of detail required was the informal

grievance form itself, which asked the plaintiff for a “Description of issue, problem, and solution

you suggest.” See Compl., Ex. B. By describing only the two occasions when he allegedly

found a cockroach in his food and not making any of his broader claims about the overall food

and health conditions, Mr. Smith-Bey conveyed that the only “issue” or “problem” he wanted


                                                  9
prison officials to address involved the two instances of a cockroach finding its way into his

food. Nor did he offer a solution, as the form invited him to do, that would have put the

defendants on notice as to the breadth of the claims that he now makes before this Court. To the

extent that Mr. Smith-Bey’s informal resolution forms did not give prison officials the

opportunity to address his claims internally as the PLRA envisions, it would be inappropriate for

the Court to address those claims here. Thus, the only claims brought by Mr. Smith-Bey that are

properly before this Court are his allegations that he found a cockroach in his food on two

occasions.

               With respect to those claims, there is a factual dispute as to whether the plaintiff

exhausted all available administrative remedies. See Def. Mot. at 4; Pl. Resp. at 2 (insisting that

prison administrators withheld the necessary grievance forms from him). The Court therefore

declines to resolve those claims by relying on the PLRA’s exhaustion requirement, and instead

will address the merits of plaintiff’s constitutional claims, dismissing them because they fail to

rise to the level of an Eighth Amendment violation.


                               B. The Plaintiff’s Remaining Claims

               The defendants have moved to dismiss Mr. Smith-Bey’s remaining claims

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that the claims, even if

true, do not allege an Eighth Amendment violation. Def. Mot. at 8. The defendants further

contend that even if Mr. Smith-Bey’s Eighth Amendment rights were violated, he is not entitled

to money damages because he has suffered no physical injury. The Court agrees with the first

argument and so need not address the second.



                                                 10
                                       1. Standard of Review

                The plaintiff's complaint was filed pro se. Complaints filed without the assistance

of counsel must be construed liberally. See Richardson v. United States, 193 F.3d 545, 548

(D.C. Cir. 1999) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam) (holding

allegations contained in a prisoner's pro se complaint to less stringent standards than pleadings

written by counsel in reversing a dismissal for failure to state a claim)).

                On a motion to dismiss under Rule 12(b)(6), which provides for the dismissal of a

complaint in the event that it “fail[s] to state a claim upon which relief can be granted,” the Court

must accept as true all of the factual allegations contained in the complaint. See Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint “is construed liberally in the

[plaintiff's] favor, and [the Court should] grant [the plaintiff] the benefit of all inferences that can

be derived from the facts alleged.” Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C.

Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those

inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff's

legal conclusions. See id.; see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009).


                              2. Absence of an Eighth Amendment Violation

                Establishing an Eighth Amendment violation requires an objective showing that

the deprivation alleged is “sufficiently serious,” and a subjective showing that prison officials

had a “sufficiently culpable state of mind,” one marked by “deliberate indifference.” Farmer v.

Brennan, 511 U.S. 825, 834 (1994). Prison authorities are required to “provide humane

conditions of confinement” and to “ensure that inmates receive adequate food.” Id. at 832.



                                                  11
Prisons must serve “nutritionally adequate food that is prepared and served under conditions

which do not present an immediate danger to the health and well being of the inmates who

consume it.” French v. Owens, 777 F.2d 1250, 1255 (7th Cir. 1985) (quoting Ramos v. Lamm,

639 F.2d 559, 575 (10th Cir. 1980)). Not just any unpleasant condition violates the Eighth

Amendment, however; the condition must be “so grave that it violates contemporary standards of

decency.” Scott v. District of Columbia, 139 F.3d 940, 943 (D.C. Cir. 1998) (quoting Helling v.

McKinney, 509 U.S. 25, 36 (1993)).

               The Court finds that plaintiff fails to allege a sufficiently serious deprivation that

would rise to the level of an Eighth Amendment violation. While certainly unpleasant, two

instances of discovering cockroaches in one’s food do not rise to the level of a sufficiently

serious deprivation. See Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir. 1985) (“The

fact that the food occasionally contains foreign objects or sometimes is served cold, while

unpleasant, does not amount to a constitutional deprivation.”); see also Lunsford v. Reynolds,

376 F.Supp. 526, 528 (W.D.Va. 1974) (“Occasional incidents of a foreign object contained in

food, while regrettable, does not present a question of constitutional proportion.”), Allen v.

Maryland, Civil Action No. 10-0353, 2010 WL 727753, at *1 (D.Md. Feb. 25, 2010) (“To state

a constitutional violation for unsanitary food preparation an inmate must do more than allege a

single or isolated incident of contamination.”). Consequently, Mr. Smith-Bey’s claims will be

dismissed for failure to state a claim.




                                                 12
                                      III. CONCLUSION

               For the foregoing reasons, the Court will grant the CCA defendants’ motion to

dismiss the complaint in this case, which has been partly converted into a motion for summary

judgment. All other pending motions will be denied as moot. An Order consistent with this

Opinion shall issue this same day.

                      SO ORDERED.


                                                           /s/____________________________
                                                           PAUL L. FRIEDMAN
                                                           United States District Judge
DATE: March 29, 2010




                                              13
