                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 12a0826n.06

                                         No. 10-3760                                   FILED
                                                                                  Aug 01, 2012
                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT                         LEONARD GREEN, Clerk


PEDRO AGRAMONTE, et al.,                       )
                                               )
       Plaintiffs-Appellants,                  )
                                               )    ON APPEAL FROM THE UNITED
v.                                             )    STATES DISTRICT COURT FOR THE
                                               )    NORTHERN DISTRICT OF OHIO
J. T. SHARTLE, Warden,                         )
                                               )
       Defendant-Appellee.                     )




       Before: DAUGHTREY, MOORE, and COLE, Circuit Judges.


       MARTHA CRAIG DAUGHTREY, Circuit Judge. Plaintiff Pedro Agramonte is one

of several pro se federal prisoners who are appealing the judgment of the district court

dismissing their civil rights action, filed pursuant to 42 U.S.C. § 1983, for failure to state a

cause of action upon which relief could be granted. This case has been referred to a panel

of the court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. Upon examination, we

agree that oral argument is not needed and that disposition is appropriate under Federal

Rule of Appellate Procedure 34(a).


       As the district court noted, the gist of the complaint is that of overcrowding, which

the plaintiffs contend resulted from the warder’s remodeling of some of the two-bed

cubicles at Federal Correctional Center Elkton to accommodate three inmates. According
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Agramonte v. Shartle

to the complaint, this expansion was accomplished by removing a chair and writing desk

in the remodeled cubicles and replacing them with a third bed. As the district court

summarized the allegations, the inmates complain that the growth in population at FCI

Elkton was not accompanied by corresponding improvements to the prison’s

“infrastructure,” which led the plaintiffs to allege as follows:


       They contend the number of toilets, urinals, wash basins and showers has
       not been increased. They indicate inmates often have to stand in line to wait
       for a vacant restroom or shower. They indicate that additional hot water
       tanks have not been installed. To maximize hot water during inmate
       showers, washing machines have been set to use cold water. They state
       that there are no comfortable places to sit to write letters or watch television.
       They allege that chairs with metal grills have been placed in the common
       areas. They indicate these chairs are so uncomfortable that it is difficult to
       sit through an entire movie. Finally, the plaintiffs also contend that the
       number of inmates in wheelchairs has increased at FCI Elkton. They
       contend these inmates would have a difficult time evacuating the building in
       the event of a fire, due to the number of inmates in the building. They ask
       the court to order FCI Elkton to convert all cells back to two man cells, and
       to award them monetary damages.


       Following review under the Prison Litigation Reform Act, the district court dismissed

the complaint, concluding that the inmates’ allegations were insufficient to state a claim for

cruel and unusual punishment under the Eighth Amendment or a violation of due process

under the Fifth Amendment. See 28 U.S.C. §§ 1915(e), 1915A, and 42 U.S.C. § 1997e.

The district court also denied subsequent motions by the plaintiffs to alter or amend the

judgment and to grant summary judgment. The plaintiffs now appeal these rulings.




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       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). Dismissal 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). Here, the district court

concluded, and we agree, that “[e]ven if the plaintiffs’ allegations are accepted as true, they

do not state a violation of their Eighth Amendment rights.” As the district court noted:


       While crowded conditions can be restrictive and even harsh, they do not
       violate the Eighth Amendment unless they deprive the inmate of the minimal
       civilized measure of life's necessities. Rhodes v. Chapman, 452 U.S. 337,
       347 (1981). Inmates “cannot expect the amenities, conveniences and
       services of a good hotel.” Harris v. Fleming, 839 F.2d 1232, 1235 (7th
       Cir.1988); see Thaddeus-X v. Blatter,175 F.3d 378, 405 (6th Cir. 1999).
       Although the plaintiffs may have been subjected to uncomfortable living
       conditions, they do not allege with any specificity that they were subjected to
       conditions that could reasonably be described as an unnecessary and
       wanton infliction of pain. Plaintiffs have not alleged a deprivation which
       triggers Eighth Amendment scrutiny.


       Without question, “[p]rison 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 v. Brennan, 511 U.S. 825, 832 (1994)

(quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). Harsh and uncomfortable

prison conditions do not automatically create an Eighth Amendment violation, however.

Rather, “extreme deprivations” must be alleged in order to support a prison-overcrowding

claim. Hudson v. McMillian, 503 U.S. 1, 9 (1992). In this case, the plaintiffs have failed


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to allege that the conditions of their confinement were sufficiently onerous to state a claim

under the Eighth Amendment. See, e.g., Preston v. Smith, 750 F.2d 530, 534 (6th Cir.

1984) (finding no Eighth Amendment violation where prisoner alleged that his segregation

cell lacked a mattress or hot water); Coleman v. Governor of Michigan, 413 F. App’x 866,

875 (6th Cir. 2011) (holding that complaints of “lack of access to televisions, better shoes,

specific dental products and different lighting” did not state a claim of an Eighth

Amendment violation). Although the FCI Elkton inmates may have been inconvenienced

by the increased population, overcrowding is not, in itself, a constitutional violation, and the

plaintiffs have not alleged that the allegedly overcrowded conditions resulted in an

unconstitutional denial of such basic needs as food, shelter, or sanitation. See Wilson v.

Seiter, 501 U.S. 294, 298 (1991); Rhodes v. Chapman, 452 U.S. 337, 345-48 (1981).


       The plaintiffs’ other allegations also fail to state a claim under Rule 12(b)(6). The

statements regarding the ventilation system are conclusory, and the allegation regarding

fire safety violations is speculative. Moreover, this case is distinguishable from Brown v.

Plata, __ U.S. __, 131 S. Ct. 1910 (2011), on which the prisoners rely. In Brown, the

Supreme Court concluded that California’s prison population needed to be reduced

because the overcrowding, which was at 200-300 percent of capacity, “impede[d] efforts

to identify inmate medical or mental health needs and provide even rudimentary care.” Id.

at 1934. Here, however, the plaintiffs have not alleged overcrowding that rises to the level

found to be unconstitutional in Brown and, thus, the district court did not err in concluding

that the allegations failed to state a violation of the Eighth Amendment.

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       Nor did the district court err in dismissing the plaintiffs’ due process claims. The

plaintiffs have not set out a procedural due process claim because they do not allege that

they have suffered an atypical or significant hardship, as required by Sandin v. Conner,

515 U.S. 472, 484 (1995). They have not set out a substantive due process claim because

the conditions alleged to exist at FCI Elkton, even if proven, would not meet the “shock the

conscience” standard applicable to such claims. See, e.g., Braley v. City of Pontiac, 906

F.2d 220, 225 (6th Cir. 1990).


       Finally, the district court did not err in dismissing the complaint before providing the

plaintiffs with discovery. The Prison Litigation Reform Act requires district courts to screen

prisoner claims “before docketing, if feasible, or, in any event, as soon as practicable after

docketing.” 28 U.S.C. § 1915A(a) & (b). In addition, district courts have no discretion to

allow leave to amend to avoid sua sponte dismissal under the Act. See McGore v.

Wrigglesworth, 114 F.3d 601, 612 (6th Cir. 1997).


       For the reasons set out above, we AFFIRM the judgment of the district court.




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       KAREN NELSON MOORE, Circuit Judge, dissenting. Because I believe that

dismissal of this entire case based on failure to state a claim is premature, I respectfully

dissent.


       To avoid dismissal for failure to state a claim under the Prison Litigation Reform Act

(PLRA), 28 U.S.C. §§ 1915(e), 1915A; 42 U.S.C. § 1997e(c), the prisoners were not

required to prove the truth of their assertions; rather, they needed only to make allegations

that, when viewed in their favor, “state a claim to relief that is plausible on its face.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Flanory v. Bonn, 604 F.3d 249,

252–53 (6th Cir. 2010).


       I agree with the majority’s conclusion that many of the plaintiffs’ claims amount to

no more than allegations of uncomfortable living conditions, which do not rise to the level

of an Eighth Amendment claim. Rhodes v. Chapman, 452 U.S. 337, 349 (1981). The

same is true for the plaintiffs’ due-process claims, which do not meet the standards for

stating either a procedural or a substantive due-process violation. Given the more lenient

pleading standard afforded pro se litigants, however, I believe that a few of the plaintiffs’

claims should have been permitted to move forward. In their fourth cause of action, for

instance, the plaintiffs contend that prison officials cut off the hot water to the washing

machines, thereby preventing inmates from washing their clothes in hot water in spite of

numerous inmates having contracted staph infections. Compl. ¶¶ 10, 22. Similarly, the

plaintiffs’ fifth cause of action alleges that an inadequate and unhealthy ventilation system


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has caused frequent respiratory infections in the prison population. Id. ¶¶ 11, 26. Both of

these allegations raise the possibility of health or sanitation problems that, if treated with

deliberate indifference by prison officials, could violate the prisoners’ Eighth Amendment

rights. See Rhodes, 452 U.S. at 348 (stating the Eighth Amendment’s concern with

“deprivations of essential food, medical care, or sanitation”); cf. Board v. Farnham, 394

F.3d 469, 475, 486 (7th Cir. 2005) (noting that the plaintiffs’ claims based on the adverse

health effects caused by an inadequate ventilation system had been permitted to proceed

beyond the dismissal stage and holding that extremely poor ventilation could constitute an

Eighth Amendment violation).


       Although it is true that the plaintiffs’ allegations do not align with those identified in

the Supreme Court’s decision in Brown v. Plata, 131 S. Ct. 1910 (2011), nothing in Brown

suggests that only alleged violations as egregious as those occurring in the prisons

involved in that case can avoid dismissal under the PLRA. Moreover, even conditions that

create only a future risk of unreasonable health issues can raise Eighth Amendment

concerns. Flanory, 604 F.3d at 255 (citing Helling v. McKinney, 509 U.S. 25, 33 (1993)).

Accordingly, I would reverse the district court’s order of dismissal of the plaintiffs’ fourth

and fifth causes of action and remand for further proceedings.




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