Daniels v. Bossier Parish Medium Sec. Facility
| Decision Date | 23 August 2011 |
| Docket Number | CIVIL ACTION NO. 08-1379-P |
| Parties | DOMINICK LAVAR DANIELS v. BOSSIER PARISH MEDIUM SECURITY FACILITY, ET AL. |
| Court | U.S. District Court — Western District of Louisiana |
In accordance with the standing order of this Court, this matter was referred to the undersigned Magistrate Judge for review, report and recommendation.
Before the Court is a civil rights complaint filed in forma pauperis by pro se plaintiff Dominick Lavar Daniels ("Plaintiff), pursuant to 42 U.S.C. § 1983. This complaint was received and filed in this Court on September 16, 2008. Plaintiff is incarcerated at the Bossier Parish Medium Security Facility in Pain Dealing, Louisiana, and he complains his civil rights were violated by prison officials. He names the Bossier Parish Medium Security Facility, Larry C. Dean, Edward Milner, Captain Gray and Nurse Burton as defendants.
Plaintiff claims that Larry C. Dean hired unprofessional staff members who placed his life in danger. He claims that on July 15, 2008, he was transferred from the maximum security facility to the medium security facility. He claims Lt. Milner called him to the front to take a drug test. He claims he was told to leave his property in Dorm D-4. He claims thatwhen he returned to the dorm, his property was missing.
Plaintiff claims he asked for a grievance form so he could file a complaint about the missing property, but was told that there were none. He claims a sergeant told him that if he asked again for a grievance form, he would be beaten, placed in the hole and 180 days of his good time credits would be taken from him. Plaintiff claims he fears he will be beaten for filing this complaint.
Plaintiff claims the prison officials throw legal papers in the trash. He claims memos are posted in the dorm instructing inmates to write a kite and not contact the courts regarding their cases. Plaintiff claims Sgt. Toloso strongly checked him for writing to the Warden regarding the law library and contacting the court regarding his lawyer. Plaintiff claims that on May 15, 2008, Sgt. Porter denied his request to go to the law library. He claims that on May 16, 2008, Sgt. Toloso denied his request to go to the law library. Plaintiff claims that on June 13, 2008, Sgt. Bannet denied his request to go to the law library.
Plaintiff claims his dorm is not properly ventilated and as a result is filled with germs. He claims the dorm only has toilets and no urinals. He claims there is no bleach in the dorm for cleaning. He claims the sprinkler system is rusted. Plaintiff claims he has caught a cold twice and suffered flu like symptoms because of the improper ventilation and lack of cleaning supplies. He claims his mucus was bloody when he blew his nose.
Plaintiff claims inmates are charged $.42 for a stamp and $.23 for an envelope. He claims many inmates cannot afford to pay this. Plaintiff claims he had to sell one of his meals in order to buy a stamp to mail his mother a letter requesting more money. He claimshe has had to beg people for soap, toothpaste, and paper.
Plaintiff claims Nurse Barton does not test incoming inmates for HIV, TB, and hepatitis. He claims that on September 3, 2008, Nurse Burton tested all the inmates in Dorm D-4 and 11 inmates tested positive for TB.
Plaintiff, a Muslim, complains there are no Islamic call-outs on Fridays for Muslims to pray altogether facing the Kaba in Mecca. He claims there are Christian call-outs. He claims that on June 24, 2008, Sgt. Porter denied his request for a Holy Qur'an. He claims preachers give Christian inmates Bibles. He claims Muslim inmates must buy the Holy Qur'an from the publisher.
Plaintiff claims that on July 15, 2008, Sgt. Nugent and Ms. Stacey called him out because he was asking about missing store items. Plaintiff claims that on July 18, 2008, Jim Jackson placed him on lock-down for three days because his cellmate was under his covers.
Plaintiff claims that on September 8, 2008, he was transferred to Dorm C-1 and forced to work at hard labor. He claims he must walk six to seven miles a day. He claims he is only fed a peanut butter sandwich, a bologna sandwich and a bag of chips. He claims he is threatened with lock-down, beatings, and loss of good time credits if he does not walk the required number of miles.
Plaintiff claims he is taken from his dorm for hours at a time and other inmates are allowed to cast lots for his store items and white clothes.
As relief, Plaintiff seeks monetary compensation and a transfer to another facility.
Plaintiff claims that on July 15, 2008, his property was taken from his dorm when he went to take a drug test. He also claims inmates took his store items and clothes when he was away from his dorm. Plaintiff filed this claim pursuant to 42 U.S.C. § 1983 of the Civil Rights Act which provides redress for persons "deprived of any rights, privileges or immunities secured by the Constitution or laws of the United States" by a person acting under color of state law. Accordingly, the initial inquiry and threshold concern of the reviewing court is whether Plaintiff's constitutional rights have been violated. See Parratt v. Taylor, 451 U.S. 527, 107 S. Ct. 1908 (1981).
The property of which Plaintiff was allegedly deprived can constitute "property" within the meaning of the Due Process Clause of the Fourteenth Amendment and its loss is worthy of redress if the loss implicates constitutional rights. See id. at 542, 107 S. Ct. at 1916. However, the Fourteenth Amendment is not a font of tort law to be superimposed upon whatever systems may already be administered by the States. See Baker v. McCollan, 433 U.S. 137, 99 S. Ct. 2689 (1979). A constitutional deprivation of property without due process of law, as differentiated from a state tort law claim, must be intentional and plaintiff must allege specific facts which support such a conclusion.
Absent an intentional deprivation of property where the charge only supports a negligent failure by defendants, a constitutional deprivation does not lie. "[T]he Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty or property." Daniels v. Williams, 474 U.S. 327, 328, 106 S. Ct. 662,663 (1986). Moreover, even in instances where intentional deprivation occurs where an adequate state post-deprivation remedy is available, the Due Process Clause is not implicated. See Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3204 (1984), on remand, 744 F.2d 22 (4th Cir. 1984); Marshall v. Norwood, 741 F.2d 761, 764 (5th Cir. 1984).
Mere assertions of intentionality are not enough in the absence of specific facts supporting the assertions and "even if the taking were intentional, the state could afford the [plaintiff] due process by providing a post-deprivation remedy for the redress of the unforeseeable, unauthorized injury... alleged." Lewis v. Woods, 848 F.2d 649, 652 (5th Cir. 1988). Louisiana law provides Plaintiff the opportunity to seek redress for his loss, whether intentional or negligent. See La. Civ. Code art. 2315.
Accordingly, Plaintiff's claims regarding the taking of his property are not cognizable under Section 1983 and should be dismissed with prejudice.
Plaintiff claims a sergeant threatened to beat him, place him in the hole, and take 180 days of his good time credits if he asked for a grievance form after being told there were none. He further claims he was threatened with lock-down, beatings, and loss of good time credits if he did not walk the required number of miles for his job. The Eighth Amendment prohibition of cruel and unusual punishment proscribes wanton infliction of unnecessary pain upon a prisoner by prison officials. However, verbal abuse and harassment do not constitute cruel and unusual punishment as contemplated by the Eighth Amendment, andallegations of such, without more, are insufficient grounds for relief under 42 U.S.C. § 1983. See Collins v. Cundy, 603 F.2d 825 (10th Cir. 1979); Ellingburg v. Lucas, 518 F.2d 1196 (8th Cir. 1975). Moreover, the Fifth Circuit held that "mere threatening language and gestures of a custodial officer do not, even if true, amount to constitutional violations." Lynch v Cannatella, 810 F.2d 1363, 1376 (5th Cir. 1987) (citing McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983)). Even if Plaintiff has been subjected to verbal threats as alleged, this claim does not amount to harm sufficient to constitute a constitutional violation.
Accordingly, Plaintiff's claims regarding verbal threats lack an arguable basis in law and should be dismissed with prejudice as frivolous.
Plaintiff filed this claim pursuant to 42 U.S.C. § 1983 of the Civil Rights Act which provides redress for persons "deprived of any rights, privileges or immunities" by a person acting under color of state law. The particular right protected under 42 U.S.C. § 1983 in matters which concern alleged unconstitutional conditions of confinement is the Eighth Amendment prohibition against cruel and unusual punishment. Under the Eighth Amendment, prison officials are required to provide humane conditions of confinement, ensuring that inmates receive adequate food, clothing, shelter and medical care, and must take reasonable measures to guarantee safety of inmates. See Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970 (1994).
An Eighth Amendment claim has two required components. See Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324 (1991). First, the deprivation alleged must besufficiently serious. See id., 111 S. Ct. at 2324. "[O]nly those deprivations denying 'the minimal civilized measure of life's necessities' are sufficiently grave" to constitute cruel and unusual punishment. Id., 111 S. Ct. at 2324 (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399 (1981)). Further...
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