Gallegos v. McCubbins
| Decision Date | 10 December 2018 |
| Docket Number | CIVIL ACTION NO. 18-4925 SECTION "F" (2),C/W 18-8752 SECTION "F" (2) |
| Parties | RICHARD GALLEGOS, JR. v. OFFICER McCUBBINS ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
Plaintiff, Richard Gallegos, Jr., was a prisoner incarcerated in the Orleans Justice Center ("OJC") in New Orleans, Louisiana, from March 15 until September 16, 2018. He filed this complaint pro se and in forma pauperis pursuant to 42 U.S.C. § 1983 against New Orleans Police Officer McCubbins and other unnamed parties. Record Doc. No. 1. This matter was subsequently consolidated with C.A. No. 18-8752, which was filed by Gallegos against Orleans Parish District Attorney Leon Cannizzaro, Orleans Parish Assistant District Attorney Hilary Khoury, Orleans Parish Public Defender Aaron Zagory, Orleans Parish Criminal District Court Judge Karen Herman, and Housing Authority of New Orleans Police Officers Kevin Doucette and Terrence Varnado. Record Doc. No. 44.
Gallegos asserts claims based on his arrest on March 15, 2018, and incarceration from that time until September 16, 2018. On March 15, 2018, Gallegos claims that he was arrested without probable cause and falsely charged with three counts of aggravated assault with a firearm (La. Rev. Stat. § 14:37.4) and three counts of committing a hate crime (La. Rev. Stat. § 14:107.2). Record Doc. No. 1. He alleges that he was unlawfully detained pursuant to this unlawful arrest and asserts claims based on the conditions of his confinement and a failure properly to treat his medical conditions. Id. Gallegos seeks compensatory damages, punitive damages and declaratory judgment. Id. He also asserts claims arising from his criminal conviction, including: 1) District Attorney Cannizaro, Assistant District Attorney Khoury and Public Defender Aaron Zagory failed to produce exculpatory evidence at trial; 2) Judge Herman failed to provide or subpoena exculpatory evidence; and 3) Officers Varnado and Doucette lied on the stand. C.A. No. 18-8752, Record Doc. No. 1. Gallegos seeks compensatory damages for false imprisonment, mental anguish and defamation of character for those claims. Id.
On August 7, 2018, I conducted the first of two conferences in this matter. Participating via telephone were plaintiff pro se; and Freeman Rudolph Matthews, 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. On September 20, 2018, I conducted a follow-up conference in which plaintiff pro se appeared in person; and Jezreel Joseph and Isaka Williams, counsel for defendants, participated by telephone. Plaintiff was again sworn and testified for all Spears purposes.
During the August 7, 2018, Spears hearing, plaintiff testified that he was then incarcerated at the Orleans Justice Center. Plaintiff confirmed that he was arrested for "six felonies," three counts of aggravated assault with a firearm and three counts of committinga hate crime. Plaintiff testified, however, that he was then charged solely with "aggravated assault with a dangerous weapon," and all other charges had been dismissed. Plaintiff testified that his criminal trial was supposed to take place in May 2018, but was continued until the following day, August 8, 2018.
Under these circumstances, I rescheduled the conference and ordered plaintiff to send a one-page report of the trial outcome after its conclusion. Plaintiff informed me that he also wanted to file "a supplemental complaint" concerning jail conditions. Plaintiff maintained that he wished to proceed on his false arrest claim, but testified that he did not assert any excessive force claim concerning a 2017 incident, which he had described in his written submissions only as background for his other claims.
On August 23, 2018, plaintiff advised in writing that he had been found guilty at his criminal trial, and he submitted additional allegations concerning the conditions of his confinement at OJC, in connection with his motions to supplement and for injunctive relief. Record Doc. Nos. 18-22; 26-36.
During the follow-up September 20, 2018, Spears hearing, plaintiff testified that he had been released from OJC on September 16, 2018. He provided a current address of 3042 Gentilly Boulevard, New Orleans, LA 70122. Plaintiff testified that he had been convicted at trial of the criminal charge against him, but that he had submitted an appeal to the Louisiana Fourth Circuit Court of Appeal, which had not ruled on the matter. I informedhim that, because of his conviction, his claim of false arrest would be dismissed with prejudice as a matter of law, pursuant to Heck v. Humphrey, 512 U.S. 477 (1994).
Plaintiff then testified regarding his conditions of confinement at OJC. As to his claim of inadequate access to legal materials, plaintiff testified that there was "no law library whatsoever" at OJC, which "[interfered] with [his] First Amendment right of access to the court . . . in connection with the difficulties [he] had filing this lawsuit." He stated that legal materials must be requested for delivery to the inmates "on the kiosk" located in OJC, and then "legal services sends you information on what your present charges are." He also said, "You can make a request for maybe state statutes, and they give them to you on the kiosk machine, but anybody trying to do any legal research, it is very inadequate." Plaintiff testified that he needed these legal materials for "civil matters. . . . like the one that is present at the time."
Gallegos also complained that fellow inmates were not made to follow the guidelines in the prison handbook; specifically, that television sets were set to a high volume and not turned off during lockdown times, in violation of rules in "the inmate handbook."
Plaintiff complained about the OJC policy denying prisoners the right to possess nail clippers, even though "when [the inmates had] them originally and [the prison officials] put them out, [the inmates] stole them." Despite this, plaintiff asserted that the nail clippers "should be readily available for the ones that use them like they are supposed to be used."He complained that there was a "four-month hold on . . . ordering" nail clippers. He also complained about the fact that he was never given underwear during his incarceration, but instead wore a pair that he "found . . . in the trash" and then later "found some more underwear." Ironically, he testified that he was not wearing underwear at the time of his arrest on the street, but expected it to be provided in jail. Finally, plaintiff testified that the fixtures in the showers and the faucets were built "[using] the wrong hardware" and are moldy and rusty. Plaintiff testified that he suffered "no harm," including physical injuries, as a result of any of these conditions.
Concerning his claims of inadequate medical care, plaintiff testified as background that in the past he has been "committed [to mental health facilities] three times," the most recent of which was at "DePaul . . . in New Orleans." Plaintiff testified that at OJC he was not treated for these mental conditions, which he described as "psychotic" and "schizophrenic." He testified that he received no medications for those conditions, and as a result suffered "something in [his] mind, nightmares, inability to sleep, and . . . too many things going on in [his] mind . . . mind racing." Plaintiff further testified that he was given no medication, other than Tylenol "for. . .about 22 days through the whole course of six months." He said he had "a lot" of pain from his preexisting physical injuries, including when "[he] was hit by a taxicab . . . . had [his] plateau tibia knocked off . . . fibula broken . . . [and a] Lisfranc fracture in . . . [his] right foot." He also testified that he requested but did not receive "x-rays [for his] bad [rotator] cuffs."
When asked about the accuracy of his verified OJC medical records, Record Doc. No. 24, which indicate that he was treated by a chronic care facility starting on April 4, 2018, with follow-up visits on April 10, May 2, and May 4, 2018, plaintiff testified that these visits were only ". . . [to keep his] Keppra going." Plaintiff identified Keppra as seizure medication, and stated that he received this medication while at OJC "twice a day." His medical records indicate, and plaintiff confirmed, that his "[s]eizures [were] fairly controlled," and that his "[c]ondition [was] stable." His medical records also indicate, and plaintiff confirmed, that he "saw the doctor . . . one, two, maybe three times" in the chronic care facility, and that he saw a nurse "most of the time." Plaintiff testified, and his medical records confirm, that he was given Tums and Prilosec for his "high acid reflux." His medical records also indicate he returned to the chronic care facility in August, and plaintiff confirmed that "sounds about right." Plaintiff testified, finally, that he
After the follow-up hearing, plaintiff filed two (2) motions for leave to amend his complaint. Record Doc. Nos. 39, 40. These motions relate to the same complaints of wrongful arrest and conditions of confinement at OJC addressed in his other filings.
A prisoner's pro se complaint for alleged civil rights violations must be screened by the court as soon as practicable after docketing, regardless of whether it has also been filed in forma pauperis. 28 U.S.C. § 1915A(a); Thompson v. Hicks, 213 F. App'x 939, 942 (11th Cir. 2007); Lewis v. Estes, 242 F.3d 375, 2000 WL 1673382, at *1 (8th Cir. 2006); Shakur v. Selsky, 391...
To continue reading
Request your trial