Bernhart v. Gusman

• Decision Date: 16 November 2015
• Docket Number: CIVIL ACTION NO. 15-1800 SECTION "N" (2)
• Parties: KERMITT JOE BERNHART v. MARLIN GUSMAN ET AL.
• Court: U.S. District Court — Eastern District of Louisiana

KERMITT JOE BERNHART v. MARLIN GUSMAN ET AL.

CIVIL ACTION NO. 15-1800 SECTION "N" (2)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

November 16, 2015

REPORT AND RECOMMENDATION

At the time of filing this complaint, plaintiff Kermitt Joe Bernhart was a prisoner incarcerated in the Orleans Parish Prison system ("OPP").¹ He filed this complaint pro se and in forma pauperis pursuant to 42 U.S.C. § 1983 against Orleans Parish Criminal Sheriff Marlin N. Gusman, Major K. Winnfield, Lt. Sims, Lt. Ruez, Lt. Jackson, Lt. Givens, Lt. Holmes and Captain Gibbons. Bernhart alleges that while incarcerated in OPP, he was stabbed by other inmates in two separate incidents, subjected to unconstitutional conditions of confinement and a strip search and provided with inadequate responses to his grievances. He seeks monetary damages and injunctive relief. Record Doc. Nos. 5 (Complaint at ¶¶ IV and V) and 6 (Supplement to Complaint).

On August 11, 2015, I conducted a telephone conference in this matter. Participating were plaintiff pro se; Charlin Fisher, 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.

THE RECORD

Bernhart testified that, at the time of the conference, he was incarcerated in OPP as a pretrial detainee, awaiting trial on charges of second degree murder, two counts of attempted second degree murder, possession of contraband in jail and aggravated battery. He said he was scheduled for jury trial on August 17, 2015.² Plaintiff confirmed that he asserts four kinds of claims in this case: (1) he was stabbed twice by other inmates while incarcerated in OPP; (2) the jail is infested with mold; (3) he was improperly strip-searched; and (4) he did not receive proper responses to his grievances at OPP.

As to the stabbings, Bernhart testified that the first occurred on December 9, 2013³ in OPP, when his right hand was stabbed by another inmate named Ravenel Williams. Plaintiff stated that he "was being molested in the shower" by Williams and another inmate whom he new only by the nickname "J-Real."⁴ Bernhart said one of his attackers was a convicted rapist who liked raping people. Plaintiff testified that the attack occurred at about 7:30 p.m., and other inmates in the area at the time intervened to help him fightoff the attack. Plaintiff said that in the resulting melee, he took the knife that Williams had used against him and used it himself to stab Williams and J-Real.

Bernhart explained that when other inmates intervened in the attack by Williams and J-Real, "they made it look like a big old brawl in the dayroom because everyone was trying to stop them [his attackers] from what they were doing, and the deputies seen that, and it wasn't what it looked like at all." Thus, Bernhart alleged, Williams and J-Real had made it appear to the deputies that all the inmates, including himself, were taking part in a jailhouse brawl, when in fact he and the other inmates who helped him had acted in self-defense. Bernhart stated that Williams told him that he would make sure all the inmates were charged in the melee, "since ya'll don't want to let me rape them guys, everyone's gonna get a charge." Bernhart said he asked inmates and deputies not to tell anyone that he had been molested because he did not want to become known as a jailhouse "punk," knowing he had to remain incarcerated in OPP while facing his charges.

Bernhart testified that Williams and J-Real "kinda snuck up on me and attacked me." He stated that he had no reason to believe before the attack that Williams and J-Real would do anything against him, and he knew from his past experience in jail that inmates like J-Real and Williams would not say anything to anyone about such an attack before attempting it. He testified that the shower was located within the day room, and the other inmates were able to see the attack as it began, and they tried to stop it.

Plaintiff confirmed that it must have appeared to the deputies working the tier that night, including Deputy Tapp and Sgt. Miguel, that the inmates had all become involved in and were all responsible for the brawl. Asked if he thought the deputies had done anything wrong in connection with the incident, Bernhart stated that "from my understanding, . . . Deputy Tapp . . . . just saw what was happening" and "when all the police came onto the tier, that's when I stopped" and handed over the knife to the officers. Bernhart confirmed that he had not named Tapp or Miguel as defendants and that he did not intend to accuse them of having violated his rights or to sue them. He explained that his aim was simply to show that he had been stabbed and then acted in self-defense, and "I don't want the humiliation throughout the jail; me having to live here throughout my charges and everyone calling me a punk and all those things."

As to the second stabbing, Bernhart stated that it occurred on December 14, 2014, about a year after the first incident. He stated that there was another inmate, whose name he did not know, with whom Bernhart had previously been involved in two or three fights, "and I told the guy I don't want to fight with him no more, he couldn't beat me . . . ." Bernhart said that he had already beaten this other inmate in their previous two or three fights that occurred on the day or two before the second stabbing incident. He testified that on the day of the second stabbing, he told this other inmate that he did not want to fight him anymore and that the other inmate could not beat him. "I guess [this other inmate] couldn't take that he couldn't beat me," he said. Bernhart testified that atfeeding time, the other inmate approached Bernhart in his cell and stabbed him under his eye and other places and kept trying to stab him. Bernhart said he responded, again fighting to defend himself, by chasing the other inmate out of his cell into the day room, where the deputies saw all the blood and broke up the chase. He identified the ranking deputy on the scene as Lt. Washington.

Asked if he was alleging that any of the deputies did something wrong in connection with this second stabbing, Bernhart said, "No, sir. From what I know, the deputy, he seen what was happening, and he said, 'hey, man, ya'll chill,' and he called for backup, and that's what he was supposed to do, call for backup . . . ." Bernhart said that he was not charged with anything based on this second stabbing, and that he was taken to the hospital for medical treatment. Bernhart said that his complaint is not that the deputies had done anything wrong in connection with the stabbings, but that he "felt humiliated" by being stabbed in the jail and subjected to the kinds of negative reputation that would spread around the jail as a result of the incidents, even though he was just trying to defend himself.

As to his claim concerning the conditions of his confinement in the jail, Bernhart said that his claim involves mold throughout the old OPP building, where he has been held during his entire period of incarceration. Bernhart testified that "I've been breathing in this manifested mold for 34 months." He said the mold is "growing from the ceilings,throughout the whole facility, on the tiers, . . . in the showers, mold everywhere." He stated that the conditions are not liveable.

Asked if any attempts are made to clean the mold, Bernhart replied, "Yes, sir. I try to clean it all the time. I get cleanup supplies. Clean it. But it grows right back." He said OPP personnel provide him with cleaning supplies, including "mold cleaner and stuff," but it grows right back. He said he tried to clean the mold on the ceilings at least two or three times, that he cleans the shower every Sunday, and that other inmates also regularly try to clean the mold, but it always comes back. Bernhart testified that even though the mold goes away after cleaning, it comes back, just like grass grows back after being cut.

Asked if the mold caused him any medical problems, Bernhart said that he has both Hepatitis C and maybe liver failure, and he knows the mold is not good for his breathing conditions. He said he had both medical conditions before he entered the jail, but he feels that the mold makes these conditions worse. He confirmed that he has received medical treatment inside OPP for his Hepatitis C, including "everything they could do toward that situation." As to the mold, however, he complained that "I have to inhale it, . . . I have to breathe it in," and he expressed the opinion that breathing in mold spores from the air is particularly bad for his preexisting liver failure condition.

As to his claim that he was improperly strip-searched on April 15, 2015, Bernhart testified that the search was conducted by Lt. Givens of SOD ("Special OperationsDepartment"). He stated that all the inmates housed on the tier with him on that date were taken outdoors to the recreation area, where all the inmates were told to strip while in the yard, causing them all to suffer "indecent exposure." He said that a total of about 30 inmates were involved in the strip-search. He explained that the deputies transferred the inmates from inside the tier to the outdoors recreation area so that the deputies could search the tier while the inmates were outside for security reasons, including probably searching for weapons or other contraband prohibited in the jail. He confirmed that the searches were conducted after the two stabbing incidents about which he also complains.

Bernhart explained that his complaint was that the strip search should have been conducted indoors, not outside where other inmates looking out the windows of their cells could see him naked. He stated that "we were just taken outside in the yard, . . . they searched our clothes and stuff, and they took us back to the tier." He testified that the strip search resulted in no physical injury to him.

As to his final claim, Bernhart...