Douglas v. Gusman
| Decision Date | 09 June 2008 |
| Docket Number | Civil Action No. 07-5469. |
| Citation | 567 F.Supp.2d 877 |
| Parties | Charles Henry DOUGLAS v. Sheriff Marlin GUSMAN, et al. |
| Court | U.S. District Court — Eastern District of Louisiana |
Charles Henry Douglas, Angola, LA, pro se.
Timothy R. Richardson, Freeman Rudolph Matthews, Usry, Weeks & Matthews, New Orleans, LA, for Sheriff Marlin Gusman, et al.
The court, having considered the complaint, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge, and the failure of plaintiff to file an objection to the Magistrate Judge's Report and Recommendation, hereby approves the Report and Recommendation of the United States Magistrate Judge and adopts it as its opinion in this matter. Therefore,
IT IS ORDERED that plaintiff's complaint asserting claims pursuant to 42 U.S.C. § 1983 is hereby DISMISSED WITH PREJUDICE as legally frivolous and/or for failure to state a claim.
Plaintiff, Charles Henry Douglas, is a convicted burglar currently incarcerated in the Louisiana State Penitentiary in Angola, Louisiana. He filed this complaint pro se and in forma pauperis pursuant to 42 U.S.C. § 1983 against Orleans Parish Criminal Sheriff Marlin Gusman, former Orleans Parish Criminal Sheriff Charles C. Foti, Jr., the Medical Department of Orleans Parish Prison ("OPP"), A. Jenkins, Warden Lecour, W. Bailey, Mr. Deterville, Lt. Gaines, K. Waston, R. Drake, R. Brown, K. Oser, A. Carias and K. Johnson. Douglas alleges in his complaint that he is deaf and that, while incarcerated at OPP, he was not allowed the same access to a telecommunications device for the deaf (TDD), also known as a telephone typewriter (TTY), as hearing inmates are allowed to a telephone; he was not given closed captioning on the television; he was threatened by some defendants when he complained about the lack of a TTY; defendant Carias threw him against a wall when he complained; and he was put into a holding cell for a few hours each time he complained. He seeks compensatory and punitive damages and attorney's fees. Record Doc. No. 1 (Complaint at ¶¶ IV, V).
On December 18, 2007, I conducted a telephone conference in this matter. Participating were plaintiff pro se, via TTY,1 and Monique Morial, counsel for defendants. Plaintiff was sworn and testified for all purposes permitted by Spears v. McCotter, 766 F.2d 179 (5th Cir.1985), and its progeny.
Douglas testified that he is currently incarcerated in the Louisiana State Penitentiary at Angola based on a parole violation and on his conviction for burglary in October 2007, for which he is serving a two-year sentence. He testified that his complaint arises from two periods of time when he was incarcerated in OPP. He confirmed that his claims are that: (1) because he is deaf, he was not given the same rights as the other prisoners to use the telephone or watch television; and (2) he was not given the aid of an interpreter for the deaf for medical and/or doctors' appointments.
Douglas stated that in 2000 he was released on parole from prison, where he had been serving a sentence for a gun-related conviction in 1995, and that he had six years remaining of the sentence to finish while on parole. He testified that he was arrested on May 3, 2006 and that he stayed in OPP until he was moved some time in August 2006 to the Department of Corrections. He stated that he was transferred back to OPP in May 2007, where he remained until he was moved to Angola during the first week of November 2007. He testified that he was sentenced on his burglary conviction on October 30, 2007 and that his parole violation was to run with that sentence.
Plaintiff said that his first set of claims arise from when he first arrived at the OPP lockup after being arrested. He testified that, when he arrived at lockup, he asked to use the TTY. However, he said he was told that there was no TTY and there were no interpreters to help him understand the prison procedures. He testified that there was no help for him to use the telephone, so he wrote a note to the guard asking for help. He stated that the guard refused to help him make a telephone call.
Douglas said that he was sent to the Templeman unit at OPP after leaving lockup and that he spoke to the Templeman warden and some of the ranking officers about the TTY device when he got there. He testified that they told him that, because he had just arrived, he would have to wait for a week or so to use a TTY. He said he was later told that there was no TTY device at the prison, so he filed a grievance. He testified that, after he had not received any response for 30 to 45 days, he contacted the advocacy center for help and the advocacy center wrote a letter to the Sheriff. He said he received threats from the staff and ranking officers at the prison when he kept complaining.
Plaintiff stated that a TTY is a device for the deaf to use to communicate by telephone with hearing people. He stated that he was not given use of a TTY until after he filed a complaint and that he was only allowed to use the device for one 10-minute call per week. He testified that the other inmates were allowed to use the telephones from early morning until around 11:00 pm, seven days a week, and that they had unlimited call time. He stated that he was restrained and placed in a cold holding cell when he complained about wanting to use the TTY to call his lawyer.
Plaintiff testified that he was given use of a TTY five to ten times at the end of the period from May 2006 to August 2006. He said that he received access to the TTY about 15 to 20 times from the day when he returned to OPP in May 2007 until about September 2007. He testified that, after he filed the instant complaint in federal court in August 2007, the warden moved him to a new building at the prison and gave him access to the TTY for one call in the daytime and one call in the evening, seven days a week, for about six weeks before he was transferred to Angola during the first week of November 2007.
Plaintiff testified that a State public defender named Anna Van Cleeve was initially appointed to represent him in his criminal proceedings and that an attorney named John Fuller helped him at the end before he was sentenced. He also said that the court ordered an interpreter for him in his criminal proceedings.
Douglas testified that he suffered from emotional distress, frustration and depression as a result of his limited access to a TTY device. He stated that he was unable to eat at times. He said that he requested medical attention for his depression, but that he was only given medication to ease his stress and help his appetite. He stated that he was also required to take a class that was held at the jail.
Plaintiff testified that he was threatened by members of the Special Investigation Division after he was moved to the new building in September 2007. He stated that an officer made him get on his knees in a holding cell and put his hands behind his head, and then placed a piece of paper in front of him for him to read, which stated that he should stop writing complaints to the Sheriff or they would spray pepper on him and keep him in lockdown until he is released from jail.
Douglas testified that when he asked an officer why they never put the closed captions on the jail television, the officer told him to stay out of jail and then he could have closed captions at home. He stated that the closed captions were never put on the television while he was in jail.
Plaintiff's medical records from the OPP dated from May 29, 2007 through September 5, 2007 reflect that he is deaf, but he reported no other medical problems during medical screening at intake on May 29, 2007. The medical records do not reflect that Douglas either requested or received any medical treatment or medications during that time period. Record Doc. No. 10.
"A federal court may dismiss a claim in forma pauperis `if satisfied that the action is frivolous or malicious.'" Moore v. McDonald, 30 F.3d 616, 620 (5th Cir.1994) (). A complaint is frivolous "if it lacks an arguable basis in law or fact." Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir.1998); Reeves v. Collins, 27 F.3d 174, 176 (5th Cir.1994). The law "`accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.'" Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir.1994) (quoting Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)).
The purpose of a Spears hearing is to dig beneath the conclusional allegations of a pro se complaint, to ascertain exactly what the prisoner alleges occurred and the legal basis of the claims. Spears, 766 F.2d at 180. "[T]he Spears procedure affords the plaintiff an opportunity to verbalize his complaints, in a manner of communication more comfortable to many prisoners." Davis, 157 F.3d at 1005. The information elicited at such an evidentiary hearing is in the nature of an amended complaint or a more definite statement under Fed. R.Civ.P. 12(e). Wilson v. Barrientos, 926 F.2d 480, 481 (5th Cir.1991); Adams v. Hansen, 906 F.2d 192, 194 (5th Cir.1990). "Upon development of the actual nature of the complaint, it may also appear that no justiciable basis for a federal claim exists." Spears, 766 F.2d at 182.
The court may make only limited credibility determinations in a Spears hearing, Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir.1997) (citing Cay v. Estelle, 789 F.2d 318, 326-27 (5th Cir.1986), overruled on other...
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