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holding "flu-like symptoms" and head cold were not serious medical needs
Summary of this case from Fletcher v. Sussex Cnty.Opinion
Civil Action No. 99-3269.
December 18, 2000
ORDER AND REASONS
Plaintiff, Leo Schwartz, filed the above captioned pro se complaint naming Wayne L. Jones, Steven Guidry, the St. John Correctional Center, the 40th Judicial District Court, Eugene Weinert, Ernest Martin, Conrad Lewis, Jimmy Oubre, Paul Jenson, Harold Lobel, Merrill Guertin, and J.W. Johnson as defendants in this lawsuit seeking injunctive relief. In his original complaint, plaintiff asked this Court to: (1) order that the St. John Correctional Center give plaintiff his law books from his property; (2) order a federal and state investigation of the St. John Correctional Center; (3) order the U.S. government to interview the plaintiff prior to beginning its investigation; (4) order the U.S. government to interview inmates in dormitories B-100, A-300, and A-400 with plaintiff present; (5) close down St. John Correctional Center and send all of the staff to a school for training and re-open the prison after each staff member completes all of the courses with a "grade of excellence;" (6) order the termination of employment for Harold Lobel (alleged to be head of the medical department) and Merrill Guertin (alleged to be a medic); (7) order the 40th Judicial District Court, Judge Jasmine and Judge Snowdy, to dismiss the bonds of plaintiff and his girlfriend, Karen Rose Donini, and transfer them to the Parish of Jefferson; and (8) order the charges against plaintiff and Ms. Donini in St. John Parish be dismissed. Plaintiff did not request damages in his original or supplemental complaints.
Rec. Doc. 1, para. V(1)-(8).
Rec. Doc. 1, 15, and 32.
Plaintiff alleges that his constitutional rights were violated when: 1) he was denied access to the courts in that he was denied adequate access to the law library and law books; 2) he was denied medical care by the failure of the infirmary to give him cold medication, aspirin, and cough drops; 3) he was subjected to unsanitary and unconstitutional living conditions in the failure to properly provide toilet paper, regular showers, razors, proper meals and condiments; 4) he was not allowed adequate recreation; 5) he was forced to observe religious services in violation of his civil rights; 6) he was subjected to threats and intimidation, with no physical contact, by Sergeant Major Ernest Martin, Sergeant Eugene Weinert; Sergeant Conrad Lewis, Deputy J.W. Johnson, and Sergeant Jimmy Oubre; 7) he was unconstitutionally housed as a pre-trial detainee with convicted prisoners; 8) he was denied equal protection when he was forced to have his hair cut; 9) he did not receive his mail, including legal mail, personal mail, and periodicals; and, 10) he was not allowed to marry Karen Rose Donini.
Rec. Doc. 51.
Defendants filed a motion for summary judgment, pursuant to Fed.R.Civ.P. 56, on the grounds that there are no genuine issues of material fact and they are entitled to judgment as a matter of law. Plaintiff filed an opposition to the defendants' motion for summary judgment. This matter was referred to the undersigned Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c).
Rec. Doc. 41.
Rec. Doc. 51.
Rec. Doc. 33.
In reviewing a motion for summary judgment, the Court may grant judgment when no genuine issue of material fact exists and the mover is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. In Celotex Corp. v. Catrett 477 U.S. 317, 323-27 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986), the United States Supreme Court indicated that the party seeking summary judgment must point out the absence of evidence showing a genuine issue of material fact. See Slaughter v. Allstate Insurance Company, 803 F.2d 857, 860 (5th Cir. 1986). The party opposing summary judgment, and who bears the burden of proof at trial, must then "go beyond the pleadings and by [his] own affidavits, or by `depositions, answers to interrogatories, and admissions on file, ' designate `specific facts showing that there is a genuine issue for trial'." Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. "[C]onclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's burden." Douglass v. USAA, 79 F.3d 1415, 1429 (5th Cir. 1996) (citingForsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994). In the instant matter, defendants are entitled to a partial summery judgment as a matter of law.
Plaintiff seeks injunctive relief. Since filing his complaint, he has transferred from St. John Correctional Center. Therefore, "any claims for injunctive relief to correct procedures and practices at that facility are moot." Edwards v. Johnson, 209 F.3d 772 (5th Cir. 2000); see also Hernandez v. W.L. Garrison, 916 F.2d 291, 293 (5th Cir. 1990). The plaintiffs claims for injunctive relief are therefore dismissed.
Rec. Doc. 1, pp. 8-10. See also Rec. Doc. 51, p. 5-6.
Plaintiff was transferred to Jefferson Parish Correctional facility and has informed this Court that he has since been released from jail. (Rec. Doc. 46). He was housed at St. John Correctional Center from February 15, 1998 to December 22, 1999.
In his opposition to the motion for summary judgment plaintiff states that he "is seeking declaratory judgment, injunctive relief and possibly compensatory and punitive damages, if applicable, but not a prerequisite." Rec. Doc. 51, p. 1. The only specific request for relief by the plaintiff was contained in his original complaint in which he requested. this court issue several orders as set forth in pages 1 and 2, supra.
Further, plaintiff's claims for declaratory relief became moot when he was transferred from St. John Correctional Center. At that point he no longer had a personal stake in the outcome of a declaratory action. Rocky v. King, 900 F.2d 864, 867 (5th Cir. 1990) (citing United States Parole Comm'n v. Geraghty, 445 U.S. 388, 395-396, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479 (1980)). The claim for declaratory relief is dismissed.
Liberally construing plaintiffs pleadings as seeking monetary damages, his claims are reviewed as follows:
Rec. Doc. 51, p. 1.
1) Denial of access to the courts.
Plaintiff claims he was denied access to the courts in that he was only able to gain limited access to the prison law library, denied his personal law books and denied the opportunity to copy legal materials. He states that he requested to go to the law library on forty-four (44) occasions and was only allowed to go on twenty (20) occasions. He claims he was unable to properly prepare appeals to the Louisiana Fifth Circuit and Louisiana Supreme Court for his criminal conviction until he was transferred to Jefferson Parish Correctional Center. Plaintiff was represented by counsel Wayne Walker on his underlying criminal conviction. In Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), the Supreme Court recognized that inmates are guaranteed under the Constitution a right of access to courts. The Bounds court required that prison officials provide inmates with "a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts." Id., 430 U.S. at 825, 97 S.Ct. at 1496. However, the Court "did not create an abstract, free-standing right to a law library or legal assistance" in the prison. See Lewis v. Casey 518 U.S. 343, 116 S.Ct. 2174, 2180, 135 L.Ed.2d 606 (1996). In order for an inmate to establish that his access to the courts has been impeded by inadequacies in the law library or legal assistance, the inmate must establish an actual injury or prejudice to his efforts to pursue a specific legal claim. See id. Furthermore, prisoners are not entitled to unlimited access to the law library. See Jones v. Greninger, 188 F.3d 322, 326 (5th Cir. 1999). "An inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense . . . prison law libraries and legal assistance programs are not ends in themselves, but only the means for ensuring `a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.'" Casey, 518 U.S. at 351, 116 S.Ct. at 2180 (citing Bounds, 430 U.S. at 823-25, 97 S.Ct., at 1495-96). Plaintiffs claim that he was not allowed to go to the law library each time he made a request or that the library had older books does not state a federal constitutional violation. Further, plaintiff has failed to state any actual injury as he was represented by counsel for his criminal charge and was not proceeding pro se. Plaintiff cites no instances where he or his attorney were unable to file a legal document or missed a court deadline. Assuming all of plaintiff's allegations as true, he is not entitled to relief on his claim of lack of access to the library and the inadequacies of the materials in the library.
Rec. Doc. 51, p. 11. Prison records reflect he was allowed access to the library on 17 occasions. Rec. Doc. 41, Exhibit C, Guidry 2.
2) Denial of medical care for the failure to provide cold medication, aspirin, and cough drops.
In the absence of allegations that a defendant's actions or omissions were other than episodic, an Eighth Amendment analysis applies to both convicted prisoners and pre-trial detainees in denial of medical care cases. Hare v. City of Corinth, 74 F.3d 633, 648-49 (5th Cir. 1996) (citing Sanderfer v. Nichols, 62 F.3d 151, 154-55 (6th Cir. 1996) (applying Farmer's subjective standard of deliberate indifference to pretrial detainee's medical care claim). Thus, pre-trial detainees are not "entitled to greater protection of rights shared in common with convicted inmates." Id. at 649 (citing Cupit v. Jones, 835 F.2d 82, 85 (5th Cir. 1987) (noting that "the distinction as to medical care due a pretrial detainee, as opposed to a convicted inmate, may indeed be a distinction without a difference")). "Punishment is inflicted only when a prison official was aware of a substantial risk of serious harm . . . but was deliberately indifferent to that risk." Hare, 74 F.3d at 649.
Denial of medical care amounts to punishment when prison officials are deliberately indifferent to a pretrial detainee's serious medical needs.See Hare 74 F.3d at 648-49; see also Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997) (citing Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976)). "Deliberate indifference encompasses only unnecessary and wanton infliction of pain repugnant to the conscience of mankind." Norton, 122 F.3d at 291. "`Subjective recklessness,' as used in the criminal law, is the appropriate test for deliberate indifference." Id. (citing Farmer, 511 U.S. 838-40, 114 S.Ct. 1980).
Therefore, "a state jail officials liability for episodic acts or omissions cannot attach unless the official had subjective knowledge of a substantial risk of serious harm to a pretrial detainee but responded with deliberate indifference to that risk." Hare 74 F.3d at 650.
Plaintiff has alleged that on two occasions, January 15, 1999, and November 27, 1999, he was denied aspirin, cold medicine and cough drops for a "head-cold and flu-like symptoms." These are not serious medical needs. The failure to provide medicine on two occasions for such symptoms does not rise to the level of a federal constitutional claim for the denial of medical care. See Gibson v. McEvers, 631 F.2d 95, 98 (7th Cir. 1980) (which found that a cold was not a serious medical condition). These claims are dismissed.
Rec. Doc. 51, p. 16.
3) Unsanitary and unconstitutional living conditions in the failure to provide toilet paper, regular showers, razors, proper meals and condiments.
In Bell v. Wolfish, 441 U.S. 520, 537, 99 S.Ct. 1861, 1873 (1979), the United States Supreme Court determined that "the fact that . . . detention interferes with the [pre-trial] detainee's understandable desire to live as comfortably as possible . . . during confinement does not convert the conditions or restrictions of detention into `punishment.'" Id., 441 U.S. at 537, 99 S.Ct. at 1873; see also Parker v. Carpenter, 978 F.2d 190 (5th Cir. 1992). Thus, if a particular act, condition, or restriction within the prison amounts to punishment, it is unconstitutional. Cupit v. Jones, 835 F.2d 82, 85 (5th Cir. 1987).
To determine whether a condition or restriction amounts to punishment, a court must determine if the restriction is imposed for the purpose of punishment or if it is reasonably related to a legitimate governmental purpose. Bell; Cupit. "Absent proof of an official's expressed intent to punish, the determination of whether a condition is `punishment' turns on whether an alternative purpose to which the restriction may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned to it." Valencia v. Wiggins, 981 F.2d 1440, 1446 (5th Cir. 1993), cert. denied, 509 U.S. 905, 113 S.Ct. 2998, 125 L.Ed.2d 691 (1993).
The plaintiff alleges that he was not provided with toilet paper for weeks at a time during December 1998 and February 1999. The defendants deny this and claim it is the policy of the prison to provide inmates with toilet paper. As this remains a disputed fact this issue will be allowed to proceed to trial.
Rec. Doc. 51, p. 17.
Rec. Doc. 41, Exhibit C, para. 13-17.
Plaintiff alleges that he was not allowed regular showers. In his opposition, he merely states that this issue is "suitable for the claim of deliberate indifference," but he does not contest the facts presented by the defendants. The defendants state that shower facilities are available to the inmates seventeen (17) hours a day. If an inmate is placed in administrative segregation he is allowed to shower once a day. The defendants contend that during the time plaintiff complains of no shower he was in administrative segregation and that during that time he refused a shower. Assuming plaintiff was unable to shower for a week, he has not made a claim that rises to the level of a federal constitutional violation. See Walker v. Mintzes, 771 F.2d 920, 928 (6th Cir. 1985); Davenport v. Derobertis, 844 F.2d 1310, 1316 (7th Cir. 1988).
Rec. Doc. 51, pp. 18-19; Rec. Doc. 1, para. I.
Rec. Doc. 51, pp. 18-19.
Rec. Doc. 41, Exhibit C, para. 20-23.
Rec. Doc. 41, Exhibit C, para. 21.
Rec. Doc. 41, Exhibit C, para. 22.
The plaintiff also claims that for several weeks, the prison only issued razors once a week. He contends that this condition of confinement amounted to deliberate indifference. Even if this amounted to cruel and unusual punishment, plaintiff has not alleged any harm that he suffered due to this alleged limitation. The Prison Litigation Reform Act (PLRA) enacted a new statutory provision, 42 U.S.C. § 1997e(e), which provides that:
Rec. Doc. 51, p. 18.
No Federal civil action may be brought by a prisoner confined in a jail, prison or other correctional facility for mental or emotional injury suffered while in custody without a prior showing of physical injury.
The PLRA created a statutory bar to recovery for mental and\or emotional damages unless the plaintiff alleges a physical injury. See Jones v. Greninger, 188 F.3d 322, 326 (5th Cir. 1999); see also 42 U.S.C. § 1997e(e) (West 1999). Plaintiff has not alleged that he suffered a physical injury. Further, defendants have offered evidence that all inmates are given ample opportunities to shave. Defendants' motion for summary judgment on the claim is granted.
Rec. Doc. 41, Exhibit C, para. 24.
Finally, petitioner contends that he was not given condiments with his meals and that he was not satisfied with the meal selection. He also alleges that he missed breakfast once because of a lockdown. Constitutional standards only require that prison authorities provide an inmate with a "well balanced meal containing sufficient nutritional value to preserve health." Smith v. Sullivan, 553 F.2d 373, 380 (5th Cir. 1977); Oladipupo v. Austin, 104 F. Supp.2d 626, 640 (5th Cir. 2000) (denial of one meal did not violate detainee's due process rights). Plaintiff has failed to set forth facts to establish a deprivation of or deviation from this standard. Defendants' motion for summary judgment on the claim is granted.
4) Denial of adequate recreation.
In order to be successful on a claim under § 1983 for lack of exercise provisions, a prisoner must set forth facts sufficient to "support the existence of any health hazard under the specific circumstances involved." Ruiz v. Estelle [Ruiz VII], 679 F.2d 1115, 1152 (5th Cir.), amended in part, vacated in part on other grounds, 688 F.2d 266 (5th Cir. 1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983). Plaintiffs allegations fail to set forth facts sufficient to establish a health risk resulting from the present exercise programs and procedures at the prison. Defendants provide in their affidavit and accompanying logs that outdoor recreation was provided on an average of three times per week as weather and security permitted. They also indicate that a day room is available for inmates on average 17 hours per day. Plaintiff has provided his own log from December 15, 1998 to December 10, 1999, which this Court must assume is accurate for consideration of a motion for summary judgment, showing constitutionally sufficient outdoor recreation. Further, though the denial of exercise is cognizable as a violation of civil rights, Spain v. Procunier, 600 F.2d 189, 190 (9th Cir. 1979), plaintiff does not allege that he was denied all exercise; he merely alleges lack of outdoor exercise. He also fails to allege any actual harm that he suffered due to the allegedly inadequate recreation. Defendants have supplied evidence showing that the amount of recreation time offered to inmates is adequate. Defendants' motion for summary judgment on the claim for is granted.
Rec. Doc. 41, Exhibit C, para. 18-19, Guidry 1.
Rec. Doc. 51, pp. 19-20, Exhibit 9.
Id.
5) Forced observance of religious services in violation of plaintiff's civil rights.
Plaintiff alleges that his constitutional rights were violated when the prison allowed chaplains to enter his dormitory and conduct religious services. Plaintiff does not allege that he was forced to attend these services. Rather, he claims his rights were violated when he was not allowed to use that portion of the dormitory or dayroom while services were ongoing. He states during the service other activity, such as watching television or taking a shower had to cease. Plaintiff has not stated any form of requisite attendance or indoctrination pursuant to these services, merely inconvenience and the temporary cessation of certain recreational privileges. This is not a forced observance of religious services. See Theriault v. Silbert, 547 F.2d 1279 (5th Cir. 1977); Montano v. Hedgepeth, 120 F.3d 844 (8th Cir. 1997). Defendants' motion for summary judgment on this claim is granted.
Rec. Doc. 41, pp. 20-21.
6) Plaintiff was subjected to threats and intimidation.
Plaintiff alleges that he has been harassed and intimidated on four occasions by the various named defendants for asserting his constitutional rights under the First Amendment and his right to access to the courts.
Rec. Doc. 51, pp. 21-22.
The mere use of threatening or abusive language by custodial officers does not give rise to a claim under § 1983. McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.), cert. denied, 464 U.S. 998, 104 S.Ct. 499, 78 L.Ed.2d 691 (1983); Burnette v. Phelps, 621 F. Supp. 1157 (M.D. La. 1985). Thus, plaintiffs endurance of perhaps unfriendly comments does not rise to the level of a constitutional violation. Defendants' motion for summary judgment on the claim is granted.
7) Plaintiff was unconstitutionally housed as a pretrial detainee with convicted prisoners.
The classification of inmates, including the housing of pre-trial detainees with convicted inmates, is an administrative function of the prison. Jones v. Diamond, 636 F.2d 1364 (5th Cir. 1981) (en banc); cert. dismissed, sub nom, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981),overruled on other grounds, Int'l Woodworkers of America. AFL-CIO v. Champion Int'l Corp., 790 F.2d 1174 (5th Cir. 1986) (overruling only of the method used to calculate expert witness fees). The Constitution requires that the prison administration act reasonably in placing inmates within the prison. Jones. The federal courts will not interfere with this administration without a constitutional violation. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). However, the defendants do not indicate to this Court what, if any, classification system there is in St. John Parish Prison. "Under Jones v. Diamond, failure to adequately classify inmates is a violation of the Eighth Amendment's prohibition against cruel and unusual punishment." Pembroke v. Wood County, Texas, 981 F.2d 225, 229 (5th Cir. 1993). Defendants are not entitled to summary judgment on this claim.
8) Plaintiff was denied equal protection when he was forced to have his haircut.
Plaintiff claims that his equal protection rights were violated when he was forced to have his hair cut while he claims that African-American inmates were not forced to cut their hair. Defendants' filed an affidavit stating that, for security reasons, inmates must keep their hair above the shirt collar. They also inform the Court by affidavit that the day plaintiff was forced to have his hair cut, two African-American inmates also received haircuts pursuant to the policy that hair may not exceed a certain length.
Rec. Doc. 51, pp. 22-24.
Rec. Doc. 41, Exhibit C, para. 29-30.
Further, the law in the U.S. Fifth Circuit is quite clear that the inmate's claim is without legal basis:
Equally clear in this circuit is the proposition that prison grooming regulations, including specifically the requirement that a prisoner cut his hair and beard, are rationally related to the achievement of valid penological goals, such as security and inmate identification.Hicks v. Garner, 69 F.3d 22, 25 (5th Cir. 1995) (inmate challenged forced haircut based on Free Exercise of Religion Clause). This claim is therefore dismissed.
9) Non-delivery of the mail, including legal mail, personal mail, and periodicals.
Plaintiff contends that on two occasions, November 4, 1999, and December 20, 1999, his legal mail was opened outside of his presence. Plaintiff states that "the opening of his legal mail did not hinder his efforts to pursue a legal claim," but violated his First Amendment rights under the U.S. Constitution and the attorney-client privilege. InOliver v. Turner, 118 F.3d 175, 177-78 (3rd Cir. 1997), the court found that a denial of access of the courts claim for the repeated opening of legal mail outside of the presence of the plaintiff "requires a showing of actual injury. That is, the inmate must `demonstrate that the alleged shortcomings . . . hindered his efforts to pursue a legal claim.'" Id. (citing Casey, 518 U.S. at 349-50, 116 S.Ct. at 2179). Here plaintiff makes no such showing and therefore he has not stated a claim for which relief can be granted.
Rec. Doc. 51, p. 14.
Plaintiff also contends that he had problems sending and receiving personal mail. He states that he "believes" this was deliberate action on the part of defendants. Such an allegation, without more, is not sufficient to defeat defendant's motion for summary judgment. These claims are therefore dismissed.
Rec. Doc. 51, pp. 24-31.
The defendants did not address in their affidavit or memorandum in support of the motion for summary judgment the issue of plaintiffs access to his personal law books. The facts remain in dispute and plaintiffs claim that he was denied access to his personal law books, the Prisoner's Self-Help Manual and the Louisiana Code of Criminal Procedure, will be allowed to proceed to trial.
See this Court's minute entry dated 12/4/00.
To the extent that the plaintiff claims that he did not receive the periodical "Free American," this claim will be allowed to proceed to trial. The plaintiff contends that this periodical was improperly censored as it does not contain inappropriate material. The prison contends that it is "incendiary and inflammatory." As a disputed factual matter, the defendants' motion for summary judgment is denied.
Rec. Doc. 41, Exhibit C, para. 10.
10) Failure to allow marriage.
Plaintiff claims that his civil rights were violated in March, 1998 when he was not allowed to marry Karen Rose Donini. Plaintiff concedes that he did not persist in his request that he be married. Although § 1983 has no statute of limitations, the Louisiana prescription statute is applicable to lawsuits in federal court filed pursuant to 42 U.S.C. § 1983. See Washington v. Breaux, 782 F.2d 553 (5th Cir. 1986). Louisiana law provides for a one year prescriptive period from the date of the injury or damage. La. Civ. Code art. 3492;Freeze v. Griffith, 849 F.2d 172 (5th Cir. 1988). Plaintiff filed his original complaint on May 21, 1999. Therefore, plaintiffs claim that the defendants violated his constitutional rights by not allowing him to marry Karen Rose Donini in March 1998 has prescribed. In addition, Schwartz has presented no evidence of a request for marriage and defendants have no record of such a request. Defendants' motion for summary judgment on this claim is granted.
Rec. Doc. 51, p. 31-32.
Id. at 31.
Rec. Doc. 1.
Rec. Doc. 41, Exhibit C, para. 31.
Accordingly, IT IS ORDERED that the motion for summary judgment filed on behalf of the defendants, Wayne L. Jones, Steven Guidry, the St. John Correctional Center, the 40th Judicial District Court, Eugene Weinert, Ernest Martin, Conrad Lewis, Jimmy Oubre, Paul Jenson, Harold Lobel, Merrill Guertin, and J.W. Johnson, is GRANTED IN PART and that this matter proceed to trial on the remaining four claims as listed in this Court's December 4, 2000, minute entry (Rec. Doc. 54).