Howard v. Gusman
| Decision Date | 22 January 2016 |
| Docket Number | CIVIL ACTION NO. 15-4388 SECTION "B" (2) |
| Parties | GERARD JEMEL HOWARD v. SHERIFF MARLIN N. GUSMAN ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
At the time of filing this complaint, plaintiff, Gerard Jemel Howard, was a prisoner incarcerated in the new Orleans Parish Prison facility ("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 and two of his ranking deputies, Major Bonita J. Pittman and Carlos J. Louque. Howard alleges that while formerly incarcerated in the old Conchetta facility of OPP for about six months in 2015, he was subjected to unconstitutional conditions of confinement and received inadequate medical care. He seeks compensatory damages and injunctive relief in the form of "a complete physical to determine if I've suffered or contracted any ailment due to the poor living conditions at the prison." Record Doc. No. 5 (Complaint at ¶ V).
On November 30, 2015, I conducted a telephone conference in this matter. Participating were plaintiff pro se and Charlin S. 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.
Plaintiff testified that he was then incarcerated in the new and recently opened OPP facility on a "parole hold" as he awaits possible revocation of his parole stemming from a 1996 conviction on two counts of manslaughter. He testified that the basis of the parole hold was his arrest on March 8, 2015, and subsequent conviction on drug paraphernalia charges, for which he was sentenced to time served on June 15, 2015.
Howard confirmed that his claims in this case arise from the six-month period of time from the date of his arrest in March until September 2015 during which he was confined in the old Conchetta facility of OPP. Asked to describe the living conditions about which he complains, Howard testified that "the floors were always dirty; we'd clean it; the showers had mildew; we'd clean it with bleach and everything; of the two toilets, the one at the end was always stopped up." Plaintiff stated that in response to inmate complaints, deputies provided bleach and other "chemicals" for the inmates to clean the facilities, but they could only put a trash bag over the stopped up toilet to "keep the smell down," while the other toilet had mildew "built up" so that it could only be used to urinate in. He complained that the bunk beds against the wall also had mildew on them.
Howard testified that these conditions caused "a rash on my head" and athlete's feet, for which he filled out a "sick call" and gave it to a nurse. He complained that rather than send him to a doctor, the nurse merely examined his conditions and told himto use medicated shampoo for the head rash, which he was expected to purchase from the jail commissary rather than have it provided by jail officials.
Howard singled out a particular event on June 25, 2015, when black smoke was coming from the ventilation system. He said that when the inmates complained, a ranking sergeant arrived on the scene "with two fire marshals" and at first falsely accused the inmates of smoking in the jail. Howard said he provided inmates with a fan to improve air circulation but refused to leave "hatches" open to give them more fresh air.
Plaintiff acknowledged that his dorm area in Conchetta had five toilets for the inmates to use, only two of which had the poor conditions he described. He said that when jail personnel responded to their complaints about the single stopped up toilet, they came to the area but did nothing, so the inmates simply covered it with a plastic bag. He said deputies who came to the tier always noticed the "stink" from this toilet. Howard complained that the bleach and other chemical supplies that were provided to the inmates for cleaning "didn't work," and the conditions worsened during his stay there, despite the cleaning. He did not know the exact identity of the chemicals that were provided to the inmates for cleaning "at least three times a week." He said the cleaning chemicals were distributed by pouring the liquid into a cup before giving it to the inmates to use in their efforts to clean the showers and other areas of the dorm. "Like I said, . . . we'd bring it to their attention, . . . and they'd bring it to us." He said despite the cleaning efforts, themildew could not be eliminated and seemed to spread. He testified that some inmates developed staph infections as a result of the conditions.
Howard stated that he had received and reviewed the medical records I ordered the sheriff to produce and that they are accurate, Record Doc. Nos. 9, 18, except that some of the complaints he made were not reflected. He complained that the nurses would examine his scalp and athlete's feet and tell him he needed to use medicated soaps and shampoos that were available for purchase in the jail commissary, but "I'm indigent," so he could not buy them at the commissary.
Plaintiff acknowledged the notation in his medical records that he had received medication for pain he suffered from prior gunshot wounds. He also acknowledged that he was taken for a visit to a "chronic care" unit before he was transferred from Conchetta to the new jail and that he was provided with an antifungal "itch cream," which he described as a hydrocortisone medication, but he complained that no medicated shampoo for his scalp breakout was provided to him. He also complained that although the nurses who saw him about his skin problems would examine him and advise how to address them, they would not send him to see the doctor in response to his requests. He testified that most his scalp and athlete's feet problems had cleared up since his transfer to the new jail, but not entirely, and he was continuing to be told to obtain medicated shampoo from the commissary. He confirmed that sometimes when his medications were passed out by jail personnel in the mornings he would not get out of bed to receive it "becauseI was too tired to get up," which was sometimes marked on his medical records as a "refusal" of the medication.
Howard stated that he continues to have problems with his scalp and athlete's feet. He said other inmates sometimes permit him to use their medicated soap or antifungal commissary items. He said his breathing problems had cleared up since the smoke incident in the ventilation unit. He said the smoke problem occurred twice, once in June and once in August, and the resulting smell, like burning plastic, had lingered for several days.
On cross-examination, Howard testified that he notified prison officials of his complaints through the ordinary grievance process, but not to the named defendants personally. He acknowledged that he had no personal contact with Sheriff Gusman or the two named majors about his problems.
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, 2013WL 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 atsuch an evidentiary hearing is in the nature of an amended complaint or a more definite statement 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. ...
To continue reading
Request your trial