Joseph v. Nelson Coleman Corr. Ctr.
| Decision Date | 30 November 2010 |
| Docket Number | CIVIL ACTION NO. 09-7562 |
| Parties | ALCY JOSEPH, JR. V NELSON COLEMAN CORRECTIONAL CENTER ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
JOSEPH C. WILKINSON, JR.
This is a prisoner's civil rights suit for damages pursuant to 42 U.S.C. § 1983, filed pro se but not in forma pauperis. Plaintiff Alcy Joseph, Jr. asserts three kinds of claims against ten (10) remaining defendants, 1 all of whom are employed at or affiliated with the Nelson Coleman Correctional Center ("Nelson Coleman") in St. Charles Parish, Louisiana. His claims include: (1) inadequate medical care/medical policy in connection with a tuberculosis inoculation he received upon entry into the jail; (2) retaliation for filing grievances in the jail's Administrative Remedies Procedure ("ARP"); and (3) state law claims for slander and/or theft/conversion based upon the confiscation of his driver's license during his arrest before he was incarcerated. All parties have consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Record Doc. No. 26.
Defendants' motion for summary judgment is pending before me. Record Doc. No. 42. The motion is supported by the affidavit of Joseph Cardella, Chief Deputy Sheriff of St. Charles Parish, who "oversees the direction and control of" Nelson Coleman. Record Doc. No. 42-4 at ¶ 2. Plaintiff filed a written response as ordered by the court. Record Doc. Nos. 44 and 45. Although the written response included no evidence, plaintiff was advised in my order concerning the motion, Record Doc. No. 44, that his testimony, provided on August 5, 2010, pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), and its progeny, and other submissions already in the record would be considered in opposition to the motion, so that there was no need to repeat it in his response.
Having considered defendants' motion for summary judgment, the record and the applicable law, and for the following reasons, IT IS ORDERED that defendants' motion for summary judgment is GRANTED.
In support of defendants' motion, Chief Deputy Cardella's affidavit establishes that the anti-tuberculosis inoculation on which Joseph bases his inadequate medical care and policy claim "is a normal and customary tuberculosis screening performed on all inmates entering the Nelson Coleman Correctional Center." Record Doc. No. 42-4 at ¶ 6. Defendants argue that, in the prison setting, their "standard operating policy and procedure to scratch test all inmates entering Nelson Coleman... for tuberculosis" is reasonable and that inoculating plaintiff as they did cannot constitute deliberate indifference to serious medical needs sufficient to establish a Section 1983 medical care claim. Record Doc. No. 42-2 at pp. 2-3. As to plaintiff's retaliation claim, Cardella's affidavit asserts that plaintiff's ARP grievance concerned actions taken by arresting officers during his arrest before he was brought to the jail, not actions taken within the prison itself, and that their response to his grievance was therefore appropriate, since the ARP can address only prison matters. Finally, defendants argue that the court should not exercise its supplemental jurisdiction over plaintiff s state law claims because all of his federal claims must be dismissed.
In his written opposition, plaintiff alleges in general terms that "Nurse Lisa Byrd['s] negligence [in giving plaintiff the anti-tuberculosis inoculation] could've cause[d] petitioner serious future injury" and that he has suffered "serious chest pain since the shot for tuberculosis." As to his retaliation claim, the written response asserts that he "was harass[ed], verbally threaten[ed] and intimidate[d] to stop filing grievance, which is a way to resolve prison problems and/or seek court interven[tion]." The written response reiterates Joseph's state law claim that Deputy Breedy "stole" his driver's license from Joseph's parents' home during his arrest on October 21, 2009. Record Doc. No. 45 at pp. 2-3.
Because plaintiff submitted no evidence in opposition to the motion, I have reviewed and considered the sworn testimony he provided in support of his claims on August 5, 2010. Record Doc. No. 18. On that date, Joseph testified that he had been incarcerated in Nelson Coleman from October 21, 2009 through March 9, 2010. He stated that he was arrested on October 21st on a charge of being a convicted felon living in a house where a gun was found, a violation of his parole. He said he had been paroled from prison after being convicted of drug distribution. Joseph stated that, although the criminal charges against him were dropped, his parole was revoked on January 7, 2010 and he is now serving the remainder of his original drug distribution prison sentence.
As to his medical care claim, Joseph testified that during initial medical screening and processing at Nelson Coleman after his arrest, he was given an anti-tuberculosis inoculation, which left him with a "sore" and ultimately a scar on his arm. He stated that he was screened 13 or 15 years ago and he tested positive for tuberculosis, so that he had the inoculation when he was incarcerated at that earlier time. Joseph testified that, when he was booked into Nelson Coleman on the parole violation charge, he did not recall and therefore did not tell prison officials that he had previously been inoculated for tuberculosis, and that the inoculation he was given at Nelson Coleman should not have been necessary. He alleged that if medical personnel at Nelson Coleman would have had a proper "standard of care" or medical screening procedure in place, he would have been asked whether he had previously been inoculated for tuberculosis, he would have been reminded that he had already been inoculated, and he could have avoided the inoculation.
Joseph testified that, when a nurse at the jail checked his inoculation three days later, she noted on his records that the inoculation "was okay," but when Doctor Woods examined him a few days later, the doctor was "highly upset" and wrote "error" on his medical records. He testified that the "sore" from the anti-tuberculosis inoculation persisted for 30 days and jail personnel kept applying salve and Band-Aids, and he was told by some medical personnel that "he never should've took that shot." Joseph stated that, when he complained, he was told that it was his own fault because he should have told jail personnel that he had previously been inoculated for tuberculosis. During his testimony, he complained again that the error would not have occurred if a proper medical "standard of care" or policy had been in place at the jail. He said he should have been asked whether he had already been inoculated upon his entry and processing into the jail.
Asked what injuries he suffered as a result of the tuberculosis inoculation, Joseph reiterated that he had a "sore" on his arm for about 30 days that ultimately healed, but left him with a scar he will have "for the rest of my life" and that there was also a "risk to my life" in that he did not know how it was going "to turn out, it could've killed me maybe."
As to his retaliation claim, Joseph testified that certain improper evidence was being used against him by arresting officers at his parole revocation hearing. He testified that he wrote a grievance in the ARP at the jail, seeking a Sheriff's Department internal affairs investigation of the arresting deputies' conduct. Joseph testified that defendants retaliated against him for filing this ARP grievance by disciplining him by giving him "three weeks with no canteen." Joseph explained that this meant he was not permitted to buy snacks or other personal items from the jail commissary for three weeks.
Joseph testified that he received a written "write-up" charging him with aggravated disobedience for refusal of an oral order, but he had to pay $1 for a copy of the write-up. Joseph confirmed that one of his previous submissions, Record Doc. No. 9 at p. 10, is the disciplinary report dated January 26, 2010, written by defendant Captain Dale, which resulted in his three-week loss of commissary privileges. He stated that Captain Dale's disciplinary report said that parole decisions were not a proper subject for the jail's ARP. The disciplinary report specifically notes that Joseph was not placed in administrative segregation as a result of the alleged violations, and Joseph testified that his only punishment was three weeks of lost commissary privileges. Joseph testified that he had taken Captain Dale's original decision to "the next step" of the ARP, and that is when he was written up for aggravated disobedience and punished by denial of commissary rights for three weeks. Joseph testified that he appeared before a disciplinary board consisting of three correctional officers, defendants Beard, Brooks and Walker, on the charge made by Dale, and the board imposed the three-week loss of commissary privileges. He complained that the board was not established in compliance with state Department of Corrections procedures.
As to his state law claims, Joseph testified that he was slandered by defendant Breedy, an arresting officer on the underlying criminal charges that subsequently led to his parole revocation. Joseph stated that Breedy slandered him when Breedy said Joseph's driver's license was no longer valid because he had been arrested. Joseph also alleged that Breedy wrongfully took his driver's license from his parents' home, where he was arrested. He described his claim as really "more theft than slander." He said that these events occurred on the morning of his arrest, before he was taken to jail.
At the conclusion of his testimony, Joseph specified that his medical care claims concerning the tuberculosis inoculation are against defendants Byrd, Hunter and Charles; that his retaliation claim is against defendants Dale, Brooks, Beard and Walker; and...
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