Hogan v. Terrebonne Parish Criminal Justice Complex, CIVIL ACTION NO. 15-1258 SECTION "I" (2)
| Decision Date | 16 July 2015 |
| Docket Number | CIVIL ACTION NO. 15-1258 SECTION "I" (2) |
| Parties | ROBERT MAURICE HOGAN v. TERREBONNE PARISH CRIMINAL JUSTICE COMPLEX ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
Plaintiff, Robert Maurice Hogan, is a prisoner currently incarcerated in the Terrebonne Parish Criminal Justice Complex ("TPCJC") in Houma, Louisiana. He filed this complaint pro se and in forma pauperis pursuant to 42 U.S.C. § 1983 against the TPCJC, Sheriff Jerry Larpenter, Warden Thomas Cope and Colonel Mike Solet. He alleges that while incarcerated in the TPCJC for about four-and-a-half months in 2015, the telephones in his unit of the jail were turned off daily, depriving him of access to his attorney. He seeks injunctive relief and monetary compensation. Record Doc. No. 1 (Complaint at ¶ V).
On June 25, 2015, I conducted a telephone conference in this matter. Participating were plaintiff pro se and William Dodd, 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.
Plaintiff testified that he was being detained at the time of the conference on a "parole hold" alleging violation of his parole on a previous attempted simple burglary conviction. He stated that he was originally arrested on February 10, 2015, and placed in the TPCJC, where he remained through the date of the telephone conference, on a felony charge of using a telephone to communicate an arson threat, which was later reduced to misdemeanor criminal mischief. He stated that he plead guilty to the reduced criminal mischief charge on June 24, 2015.
Hogan testified that his claims in this case arise from defendants' practice during his four-and-half months of incarceration of turning off the telephones in the unit of the jail where he was being held as a disciplinary measure against inmates who would hang bed sheets or other items from their bunks, blocking the view of correctional officers into their cell areas. He said the deputies would turn off the telephones in the holding area, until the inmates would take down whatever was blocking the deputies' view into the cell area.
Hogan testified that sometimes the telephone service would be turned off all day, sometimes "for days" at a time. He speculated that subpoenaing the telephone records would show when and for how long the phone service had actually been turned off.1 He conceded that the deputies' need for the inmates to take down the materials blocking theirview into the holding area was a concern about jail security, since the correctional officers need to able to see the inmates to maintain order.
Asked to estimate the number and amounts of time during which telephone service was turned off, Hogan said "days at a time" in February, with some days on which the telephones were turned on late in the day. He explained that ordinarily the telephones in the jail are turned on for the prisoners to use beginning at 8:00 a.m. and then turned off at the 11:00 p.m. bed time for inmates. He complained that the telephones were cut off to all 40 prisoners housed in his unit, even if only one inmate had something hanging from a bunk that was blocking the guards' view. Hogan said the phones were turned off in this manner intermittently, during his entire stay in the unit. He acknowledged that the phones would be turned on again when the inmates complied with the requirement that they not hang things that would block the guards' view.
Asked what effect turning the phones off as a disciplinary measure had on him personally, Hogan stated, He said he asked the jail administrators if he could be "brought to the front" to use a telephone, but he was not allowed to do so. Although he stated that he eventually wrote his lawyer a letter, Hogan alleged that there were certain times when he needed to talk to his lawyer right then, but he could not do so because the phones were cut off. Hogan testified that he never talked to his lawyer on the phone, even when the phones were working, whileincarcerated because he had no urgent need to speak with his lawyer when the phones were working, only when they were not working. He testified that he was able to write to his lawyer six or seven times.
Asked if anything bad happened to him because he was unable to talk to his lawyer on the telephone when he wanted to do so, he said, "Well, it's over with now because the case is finished so . . . ." He then expressly acknowledged that nothing bad had happened in his case because he could not talk to the lawyer on the phone. He said he had needed to call his lawyer because he "had something fresh on his mind," but when the phones were turned back on he had already sent the lawyer a letter. He said he was able to meet in person with his lawyer while in jail maybe five times and that the case was now over since he had plead guilty to the reduced misdemeanor charge.
A prisoner's pro se complaint for alleged civil rights violations must be screened by the court as soon as practicable after docketing, regardless 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 F.3d 106, 112 (2d Cir. 2004); Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998); Lewis v. Sec'y, DOC, No. 2:10-CV-547-FTM-29, 2013 WL 5288989, at *2 (M.D. Fla. Sept. 19, 2013), aff'd, 589 F. App'x 950 (11th Cir. 2014).Such complaints by prisoners must be dismissed upon review if they are frivolous or fail to state a claim upon which relief can be granted. 28 U.S.C. § 1915A(b)(1); Lewis, 589 F. App'x at 952; Thompson, 213 F. App'x at 942; Shakur, 391 F.3d at 113; Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999).
"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 (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 definitestatement 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 grounds by Denton v. Hernandez, 504 U.S. 25, 112 S. Ct. 1728 (1992)), and may consider and rely upon documents as additional evidence, as long as they are properly identified, authentic and reliable. Id. (citing Wilson, 926 F.2d at 482-83; Williams v. Luna, 909 F.2d 121, 124 (5th Cir. 1990)). However, "'[m]edical records of sick calls, examinations, diagnoses, and medications may rebut an inmate's allegations of deliberate indifference.'" Gobert v. Caldwell, 463 F.3d 339, 347 n.24 (5th Cir. 2006) (quoting Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995)) (internal citations omitted).
After a Spears hearing, the complaint may be dismissed as legally frivolous if it lacks an arguable basis in law, Jackson v. Vannoy, 49 F.3d 175, 176-77 (5th Cir. 1995); Moore v. Mabus, 976 F.2d 268, 269 (5th Cir. 1992), or "as factually frivolous only if thefacts alleged are 'clearly baseless,' . . . [or] when the facts alleged rise to the level of the irrational or wholly incredible." Id. at 270.
"'A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist.'" Davis, 157 F.3d at 1005 (quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997)). "When a complaint raises an arguable question of law which the district court ultimately finds is correctly resolved against the plaintiff, dismissal under Rule 12(b)(6) is appropriate; however, dismissal under the section 1915(d) standard is not." Moore, 976 F.2d at 269. A prisoner's in forma pauperis complaint which fails to state a claim may be dismissed sua sponte at any time under 28 U.S.C. § 1915(e)(2) and 42 U.S.C. § 1997e(c)(1).
In this case, plaintiff's complaint may be dismissed under 28 U.S.C. § 1915(e) and 42 U.S.C. § 1997e(c)(1), either as frivolous, because it lacks...
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