Morgan v. Gusman
| Decision Date | 14 January 2016 |
| Docket Number | CIVIL ACTION NO. 15-3693 SECTION "E" (2) |
| Parties | DARRYL MORGAN v. SHERIFF MARLIN N. GUSMAN ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
At the time of filing this complaint, plaintiff Darryl Morgan was a prisoner incarcerated in the Orleans Parish Prison system ("OPP"). 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, Captain Johnson, Lt. Holmes and Sgt. Watson. Morgan alleges that while incarcerated in OPP, he was subjected to unconstitutional conditions of confinement and denied adequate medical treatment. He seeks monetary damages for his pain and suffering. Record Doc. No. 1 (Complaint at ¶¶ IV and V).
On October 15, 2015, I conducted a telephone conference in this matter. Participating were plaintiff pro se; Charlin 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.
Morgan testified that he was then incarcerated in OPP as a pretrial detainee awaiting trial, with his next court appearance scheduled for November 4, 2015, on charges of attempted armed robbery and burglary. He said he was arrested on these charges on January 13, 2015, and has remained in OPP since that date.1
Morgan confirmed that his claims in this case arise from a single incident occurring April 25-27, 2015, when a pipe broke causing a sewage backup on the first floor of the Templeman 5 unit of OPP, where he was then being housed on Tier B-1, located on the second floor of the building.
Morgan testified that he did not see the pipe break or the sewage backup, but he learned about it from deputies, who told the inmates that "the sewage had backed up and what had happened was feces, urine and contaminated water was being drained out for three days in a row." Morgan said that he saw deputies wearing plastic bags over their shoes during this time and that "due to this, it caused sickness."
Morgan alleged that he was exposed to the sewage backup because his food was being prepared in an area where the contaminated water had leaked from the broken pipe, and "our food was coming up on a cart" with "no protection on the food" from the water leak. He complained that "we got this food for three days in a row until [the pipe leak] was completely fixed" and that the food was never delivered by another route. He said that the smell was so bad in the jail during that time that the nurse missed one day of delivery of medications to his tier. Morgan acknowledged that he did not walk in thewater himself and did not go onto the first floor where the leak had occurred, but he alleged that his food was exposed to the water and that the water could be seen on the carts delivering the food. He said these conditions continued for three days, during April 25-27, but the situation was fixed by April 28th.
Asked what injuries he suffered as a result of the sewage leak, Morgan testified, "I had diarrhea, . . . fever, I had a sore throat, . . . it was hard for me to breathe. . . stomach ache and headache." He said these conditions persisted for about four or five days. Morgan confirmed that he had received the medical records I ordered the sheriff to produce, Record Doc. Nos. 5 and 14, that he had read "some of them," and that they were accurate "far as my medications." He confirmed that his complaints in this case include that on one day, April 26th, he did not get his medication for diabetes, Metformin, that he takes daily, because the nurse could not make her rounds on that day due to the sewage problem. He acknowledged that the nurse returned and delivered his medication on the following day. He said he knew he had fever during this time, not because anyone actually took his temperature, but because "I felt my head" while he was also having stomach ache and diarrhea.
Morgan testified that he had "no other choice" but to eat the food that was being delivered during that time. He confirmed that when jail personnel cleaned up the sewage and fixed the broken pipe, his problems were resolved.
On cross-examination, Morgan said he named Sheriff Gusman as a defendant because the sheriff "is over the whole jail," in charge of the OPP facility and should have done something about the situation. He denied telling anyone on April 29, 2015, that he was "all set" from a medical standpoint. He confirmed that after his Metformin delivery was missed on one day during the plumbing breakdown, it was resumed the next day and continues to be delivered.
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 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. 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 the facts 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 interestwhich 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 legally frivolous, because his claims lack an arguable basis in law, or under Rule 12(b)(6) in light of his testimony explaining the factual basis of his claims. Plaintiff's complaint, as amended by his testimony at the Spears hearing, fails to state a claim of violation of his constitutional rights cognizable under Section 1983, even under the broadest reading.2
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