Lumsden v. Davis

• Decision Date: 12 March 2021
• Docket Number: W-20-CV-630-ADA
• Citation: 525 F.Supp.3d 782
• Parties: Raymond E. LUMSDEN, TDCJ No. 02109472, v. Lori DAVIS, et al.
• Court: U.S. District Court — Western District of Texas

525 F.Supp.3d 782

Raymond E. LUMSDEN, TDCJ No. 02109472,

v.Lori DAVIS, et al.

W-20-CV-630-ADA

United States District Court, W.D. Texas, Waco Division.

Signed March 12, 2021

Raymond E. Lumsden, Gatesville, TX, Pro Se.

Landon Allen Wade, Penelope Jo Maley, Office of the Attorney General, Law Enforcement Defense Division, Austin, TX, for TDCJ Director Lorie Davis, Warden Cynthia Lofton, Senior, Asst. Warden Chimdi Akwitti, Asst. Warden Nick Clayton, Major Beau Smith, Jessica Riley, H. M. Pederson.

ORDER

ALAN D. ALBRIGHT, UNITED STATES DISTRICT JUDGE

Before the Court are Plaintiff Raymond E. Lumsden's complaint filed pursuant to 42 U.S.C. § 1983 (ECF No. 1); Defendants Davis, Lofton, Akwitti, Clayton, Smith, Riley, and Pederson's Motion to Dismiss and Motion for Summary Judgment (ECF Nos. 16, 28), Plaintiff's Response in Opposition (ECF No. 34), Defendants’ Reply (ECF No. 36), and Plaintiff's Sur-reply (ECF No. 40); Plaintiff's Motion to Compel (ECF No. 35) and Defendants’ Response (ECF No. 37); and Plaintiff's Motion to Take Photographic Images and to Appoint Counsel (ECF No. 41). Plaintiff is proceeding pro se and in forma pauperis. Upon careful consideration of the parties’ motions, the Court dismisses Defendants’ Motion to Dismiss, grants Defendants’ Motion for Summary Judgment, and denies Plaintiff's pending motions.

I. Statement of the Case

Plaintiff is in custody at the Hughes Unit of the Texas Department of Criminal Justice-Correctional Institutions Division (TDCJ-CID). Plaintiff alleges that he arrived at the Hughes Unit in June 2019 and was exposed to its "deplorable" living conditions. He alleges that there is a strong smell of sewer gas throughout the Unit; the cells are covered in feces, dried blood, mold, and rust; there is an uncontrolled infestation of rats, cockroaches and ants in the cells and in the kitchen; there is chipped paint throughout the Unit; prisoners are not provided with any cleaning supplies and the janitorial staff only uses water for cleaning; the Hughes Unit does not separate mentally-ill offenders from the general population; and there is a severe staffing shortage which has resulted in a lack of maintenance and deplorable sanitation. Plaintiff alleges these conditions have exacerbated his chronic asthma

, as well as caused him to suffer migraines, burning eyes, sore throat, bloody nose, rashes, and dizziness. Plaintiff also alleges that, after he complained about the living conditions, Defendants conspired to retaliate against him by transferring him to a different Unit.

Plaintiff claims violations of his Eighth Amendment rights based on his conditions of confinement and the Defendants’ deliberate indifference to these conditions and their serious risk to Plaintiff's health and safety. He also claims conspiracy to retaliate. Plaintiff names the following defendants in both their official and individual capacities: Lorie Davis, TDCJ-CID Director; Cynthia Lofton, Hughes Unit Warden; Chimdi Akwitti, Hughes Unit Assistant Warden; Nick Clayton, Hughes Unit Assistant Warden; Major Beau Smith; Jessica Riley; and H.M. Pederson. He seeks declaratory and injunctive relief and damages. (ECF No. 1.)

After Defendants filed a Motion to Dismiss (ECF No. 16), the Court converted Defendants’ motion into a motion for summary judgment (ECF No. 22). Defendants thereafter filed a motion for summary judgment, arguing they are entitled to Eleventh Amendment immunity and qualified immunity. (ECF No. 28.) In support of their motion, Defendants filed 200 pages of Plaintiff's medical records from June 2019 through July 2020 under seal. (ECF No. 30.)¹ Plaintiff filed a response in opposition (ECF No. 34), to which Defendants replied and Plaintiff filed a sur-reply (ECF Nos. 36, 40). Plaintiff also filed a Motion to Compel, which Defendants oppose (ECF Nos. 35, 37), as well as a Motion to Take Photographs and/or Appoint Counsel (ECF No. 41).

II. Factual Background

Upon arriving at the Hughes Unit in June 2019, Plaintiff was confronted with the Unit's "deplorable living conditions." (ECF No. 1 at 3.) His initial placement was in the transit overflow section which smelled strongly of sewer gas—which Plaintiff alleges is toxic to humans—as well as feces. The fumes immediately irritated Plaintiff's chronic asthma

. The cell Plaintiff was assigned to had fecal matter, dried blood, mold, and rust all over the walls; the floor was covered in cockroaches; and the toilet and sink did not work until they were repaired three hours later.

Plaintiff alleges mold and rust all over the Hughes Unit, and the smell of sewer gas is everywhere but is especially severe in the cells and shower areas. He states the sewer gas has caused him to seek treatment for burning eyes, sore throat, runny and bloody nose, migraines, and dizziness, and has worsened his chronic asthma

. Plaintiff's medical records show he has been diagnosed with mild persistent asthma, and that in June 2020, he complained of burning, red eyes, sore throat, and headaches, and requested eye drops. He stated that his symptoms were due to the unsanitary conditions and sewer gas. The next month Plaintiff said the eye drops and medication were helping but noted "the deplorable conditions makes it a futile battle."

Plaintiff states that the cells are infested with cockroaches, ants, rodents, and spiders, and that the Unit's pest control is insufficient. Plaintiff filed a grievance complaining about a "major sanitation, roach, mice and mold problem" and that he had never seen pest control spray in the Unit. He also complained there were roaches and mice everywhere and requested chemicals to clean his cell along with the elimination of pests/rodents. (ECF No. 1-2 at 7-8.) Defendant Clayton responded "[p]est control sprays on a scheduled basis. Daily sanitation of housing areas is conducted to prevent unsanitary conditions and offender should be receiving chemicals to clean their cells." (Id. ) In his Step 2 grievance, Plaintiff stated he has never seen pest control spray, has never received chemicals to clean his cell, the showers were only cleaned with water, and there was "mold, filth, roach infestation, smell/odor, and garbage piled on the floors!" Defendant Riley responded that Plaintiff's concerns had been addressed in his Step 1 grievance. (Id. at 5-6.)

Plaintiff alleges there is chipped paint all over the prison, which causes him to break out into a rash and itch. In June 2020, Plaintiff sought medical treatment for persistent itching and was provided two lotions. Plaintiff filed a grievance complaining about the maintenance issues in Hughes, stating the chipped paint gets into food and causing him to break out in a rash. (Id. at 15-16.) On a Grievance Investigation Worksheet, Patricia Burton wrote "The interiors of most of the buildings are in poor condition. The sanitation efforts are insufficient. Take into consideration that we are short staffed [and] actively correcting our plethora of deficiencies." (Id. at 2.) In response to Plaintiff's grievance, Defendant Akwitti noted "[s]taff agree[ ] with your assessment for the need to paint.... Staff is fully aware there is a need to correct the deficiencies and are working toward making the situation better." (Id. ) Plaintiff filed a Step 2 grievance, where he alleged Akwitti and the Unit administration were indifferent to the maintenance problem; Defendant Pederson denied the grievance, stating there was no conclusive evidence of a policy violation. (Id. at 14.) Plaintiff alleges that in June 2020, he spoke to Akwitti about the maintenance issues, and Akwitti told him "[i]t will be easier to just send you to another unit for us" and that the Hughes administration had discussed transferring Plaintiff. (ECF No. 1 at 6.)

In December 2019, Plaintiff filed a Step 1 grievance stating that the Hughes Unit kitchen was violating TDCJ policy by not provide balanced, nutritious meals to the prisoners. Plaintiff alleged ninety percent of the meat is stolen and sold; prisoners are served insufficient portions of the same food without variety; the food trays are full of grease because they are not washed with soap. Akwitti responded saying "[a]ppropriate serving utensils are used to ensure that offenders are receiving the adequate serving amount." (ECF No. 1-2 at 9-10.) Plaintiff did not file a Step 2 appeal.

Plaintiff states the Hughes Unit does not separate mentally-ill prisoners from the general population, which poses a health risk for him. Plaintiff filed a grievance in September 2019, stating a psychotic prisoner had attacked other prisoners at random while yelling demonic statements, and that an Officer Kellar had witnessed the event but did nothing. Plaintiff then asked his family to report the issue to the Warden. Thereafter, Akwitti confronted Plaintiff, saying "If you have your family call again, or threaten me with Lorie Davis, I'll lock you up under 12 [Building] and nobody will find you." Defendant Clayton responded to this grievance, stating "It appears that the incident was handled appropriately. There is no evidence to support your allegations of substandard duty performance. Further, no evidence was found to support your claims against Assistant Warden Akwitti." (Id. at 11-12.) Plaintiff did not file a Step 2 appeal.

Finally, Plaintiff alleges the Hughes Unit is understaffed. He filed a grievance on the matter, wherein he complains that none of the prisoners received their four hours of "non-programmatic out-of-cell" time. In response, Clayton stated that the "Administration is aware of the issues with offenders not getting the full 4 hours for recreation due to a staff shortage." (Id. at 19-20.) Plaintiff further alleges this staff shortage has resulted in the lack of maintenance, the deplorable sanitation and cleaning, the failure to repaint areas that are rusty and moldy, and an increase in prison violence. Plaintiff attached to his complaint several pages from a "Prison Legal News" article discussing mold in...