Andrew v. St. Tammany Parish Prison
| Decision Date | 14 January 2016 |
| Docket Number | CIVIL ACTION NO. 15-2105 SECTION "I" (2) |
| Parties | DON M. ANDREW, JR. v. ST. TAMMANY PARISH PRISON ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
Plaintiff, Don M. Andrew, Jr., is currently incarcerated at Oakdale Federal Correctional Institution. At the time of the incidents he complains about in this case, Andrew was a prisoner in the St. Tammany Parish Jail. He filed this complaint pro se and in forma pauperis pursuant to 42 U.S.C. § 1983 against St. Tammany Parish Prison1 and Officer Ty Poynter, who was employed at the St. Tammany Parish Jail. Andrew alleges that he was subjected to excessive force, received constitutionally inadequate medical care and was verbally harassed while incarcerated in the jail. He seeks monetary damages and injunctive relief. Record Doc. No. 5 (Complaint at ¶¶ IV and V).
On December 7, 2015, I conducted a telephone conference in this matter. Participating were plaintiff pro se and Molly Manieri, 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.
Andrew testified that he was incarcerated in the St. Tammany Parish Jail on charges of conspiracy to commit arson, mail fraud and wire fraud at the time of the incidents about which he complains in this matter. He stated that he was convicted of these charges in November 2014 and sentenced to 20 years in prison. He testified that he was held at the St. Tammany Parish Jail from October 12, 2012 to March 19, 2015. He stated that he arrived at Oakdale Federal Correctional Institution on November 4, 2015, after being in Pollock Federal Correctional Institution. He said he is 44 years old.
Andrew confirmed that he asserts three claims in this case.2 His first claim is that defendant Deputy Poynter used excessive force against him on October 3, 2014. Andrew testified that, between 9:30 and 10:30 p.m. on that date, he and Poynter "had a dispute" over whether plaintiff could take a shower. Andrew stated that he had refused to take a shower earlier in the day, but wanted to take one at about 9:30 p.m. He testified that prisoners were allowed to take a shower anytime between 6:00 a.m. and 11:00 p.m. He stated that he asked Poynter if he could take a shower, but Poynter replied that Andrew had already taken one.
Plaintiff stated that he asked Poynter to check the record book to confirm that Andrew had not taken a shower earlier. He testified that Poynter cursed at him, said that he did not have to do anything that Andrew asked, and called him "boy." Andrew testified that Poynter refused his request to let him speak to the deputy's supervisor.
Andrew stated that he was in isolation for protective custody on October 3, 2014, and had to be logged out. He testified that he was in protective custody because he had a fusion operation on his back in 2005. He stated that he told St. Tammany Parish Jail personnel about his 2005 surgery when he arrived seven years later on October 12, 2012. He said he also had a burn on his foot on October 3, 2014, and had been in a bus accident in April 2012.
As to Poynter's use of force, Andrew testified that, after Poynter denied his request to speak to a supervisor, Poynter told him to lie down on his stomach in his cell. Plaintiff stated that he did so and Poynter handcuffed him behind his back. Andrew testified that Poynter "pulled me up, hard, knowing that I had a medical condition with my back." He said that Poynter "yanked me up real hard" by the handcuffs. Plaintiff testified that he "was screaming and asked [Poynter] could he please be a little gentle with me." He said that Poynter responded, "You gotta learn how to listen, boy," and used "a few more" curse words Andrew statedthat Poynter tried to make him get on his knees when they were in the hallway, "knowing that was something that I can't do."
Plaintiff testified that Poynter's supervisor, Deputy Cassidy, then asked Andrew why he did not just listen to Poynter. Andrew said he replied that the Medical Department had his "medical credentials" describing what he could and could not do, and that he was in pain. He stated that he sat on the bench after that for about six hours, in pain. He stated that Poynter "knew Medical had all my . . . paperwork . . . and he knew I couldn't do that, as far as getting on my knees."
Andrew testified that about one and one-half minutes (90 seconds) elapsed from when Poynter put the handcuffs on him in the cell until Cassidy spoke to him in the hallway. He stated that, while his hands were cuffed behind his back in the hallway, Poynter which is when Cassidy said that Andrew should listen to Poynter. Plaintiff testified that Poynter "threw me on the bench and they were saying some other vulgarity things to me."
Andrew said that, while he was on his stomach, Poynter pulled on his handcuffs and "raised me like he was trying to make me touch my neck." Andrew stated that the first incident of pulling on his cuffs to raise him from the bed lasted about 10 seconds. He said that the second pulling incident occurred after Poynter pushed him into the hallway and told him to "get on your knees, boy." Andrew stated that the secondinstance lasted about 45 seconds, when Poynter pulled him up from his knees by his handcuffs. Asked what injuries he suffered, Andrew testified that he had hand, back and neck pain, for which he is currently being treated with aspirin at Oakdale.
Plaintiff confirmed that his second claim in this case is that he did not receive proper medical care for the injuries he suffered in the same incident. He stated that Cassidy refused to provide him with medical care and that no one came to see him about his injuries. He said "they" told him there was nothing in his medical records, but that his St. Tammany Parish Jail medical records show that he told jail personnel on October 10, 2012, about his seven-year-old lumbar fusion and the burn on his foot.
Andrew confirmed that he had reviewed his medical records, Record Doc. No. 18, and that they are accurate. He claimed that the records confirm that he has a painful back problem. He said that medical personnel at the St. Tammany Parish Jail had given him x-rays, but no pain medicine. He confirmed that the records show that he was seen by four different doctors at St. Tammany Parish Jail.
Andrew testified that his third claim is that he was verbally harassed when Poynter cursed him and called him "boy," and when Poynter and Cassidy addressed vulgarities to him.
Plaintiff stated that he filed a grievance at the St. Tammany Parish Jail concerning the incident with Poynter, but did not receive any response. He said he received a disciplinary citation and a hearing for "failing to follow direct orders, a few other things"with respect to this incident. He stated that he was found guilty of the disciplinary charge and that his telephone privileges were taken away for a week.
In pertinent part, Andrew's medical records from St. Tammany Parish Jail reveal that his history of a lumbar spine fusion was noted at his initial health assessment on October 12, 2012. Record Doc. No. 18-1 at p. 28. He was seen by S. Bhatt, M.D., on December 5, 2012, for complaints of abdominal and back pain and his request for a double mattress. Id. at p. 54. Dr. Bhatt noted that Andrew exaggerated his symptoms and was in no distress. The doctor prescribed acetaminophen (Tylenol) for back pain. Dr. Bhatt found no medical indication that might necessitate a double mattress. Id. at p. 55.
Andrew submitted a sick call request dated August 21, 2013, complaining that he had fallen on his back during a fight on August 20, 2013, and had tingling in his back down to his toes and pain in his foot. He said he had suffered back pain since his arrival at the jail on October 12, 2012. Andrew reported to Nurse Travis on August 26, 2013, that he had nerve damage from the fall. Nurse Travis observed that plaintiff both ambulated and bent over without difficulty and was in no acute distress. R. Demaree Inglese, M.D., Medical Director of the St. Tammany Parish Sheriff's Office, added a note that he had seen plaintiff in clinic the previous day for a different complaint and that Andrew had walked normally, risen from a seated position without difficulty and not mentioned any back problem. Id. at p. 15.
Dr. French saw Andrew on August 28, 2013, for plaintiff's complaint of a "twisting injury" and back pain since an altercation on August 20, 2013. Dr. French found no signs of acute back injury. Plaintiff had a normal gait, full range of motion, no spasm, and could bend easily. Dr. French saw no medical need for the second mattress that Andrew had requested. The physician prescribed a nonsteroidal anti-inflammatory drug ("NSAID") and analgesic balm for pain. Id. at p. 47.
On July 9, 2014, plaintiff was seen by Nurse Thomas and Dr. Bhatt for complaints of lower back pain, left leg numbness and left arm tingling after an altercation. Nurse Thomas observed that plaintiff ambulated without difficulty and easily stepped up onto and sat on the exam table. Id. at p. 95. Dr. Bhatt stated that Andrew had "vague reports" of pain and numbness, but had full range of motion and a normal motor and neurological examination. Dr. Bhatt prescribed NSAIDs for physical discomfort. Id. at p. 39.
In a sick call request dated August 10, 2014, Andrew complained that his injuries from the July 9, 2014, altercation had worsened and he had shooting pains in his back going down to his toes with numbness and tingling. He stated that his thumb was swollen and his left shoulder and neck hurt. He requested a second mattress. The nurse who responded on ...
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