Pierce v. Porter
| Decision Date | 06 June 2022 |
| Docket Number | Civil Action 21-1262 |
| Parties | WESLEY D. PIERCE v. JONATHAN PORTER, ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
SECTION “M” (2)
REPORT AND RECOMMENDATION
Plaintiff Wesley D. Pierce filed this prisoner civil rights complaint pursuant to 42 U.S.C. § 1983 (ECF No. 4) which was referred to a United States Magistrate Judge to conduct a hearing, including an evidentiary hearing, if necessary, and to submit proposed findings and recommendations for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), § 1915e(2), and § 1915A, and as applicable, 42 U.S.C. § 1997e(c)(1) and(2). Also before the court are a Motion to Dismiss and/or for Summary Judgment (ECF No. 28) filed by defendant Dr. Jose Ham on November 9, 2021, to which Pierce filed an opposition (ECF No. 37). Pierce also filed a Motion for Temporary Restraining Order to prevent his transfer and interference with his criminal proceedings. ECF No. 25.
Having considered the record, including plaintiff's complaint his § 1983 fact statement, Spears hearing testimony, and the applicable law, the undersigned enters the following findings and recommendations.
Pierce was a pretrial detainee in the St. Tammany Parish Jail (“STPJ”) when he filed his pro se prisoner civil rights suit under 42 U.S.C. § 1983. ECF No. 3, at ¶III(A), at 3. He has since been released. ECF No. 39. Pierce alleged several claims categorized as sexual assault, failure to protect, failure to investigate his complaints, and excessive force against defendants Dr. Ham Captain Lacey Kelly, Sheriff Randy Smith, Deputy Warren Farrell, Captain Shaniqueka Weary, and Jonathan Porter. Through his Spears hearing testimony summarized in this report, Pierce has included additional claims arising from the alleged conduct of STPJ officials Lt. Chatelain Deputy Johnathan Lott, Sergeant Harris, Corporal Glover, Deputy Racheal Smith, Corporal Pelligrin, and Sergeant John Doe. As relief, Pierce requests a trial, compensation of $3.5 million, a lifetime of healthcare, and protection from retaliation. Id., ¶V, at 5.
Pierce alleged that, in February or March of 2020, defendant Porter was his mental health counselor at the jail. ECF No. 3, Claim 1, at 6. During a counseling session, Porter asked to see Pierce's penis. Pierce declined and tried to use the PREA hotline at the jail to report the incident, but the number was disconnected. Pierce had his girlfriend, Alexis Perry, call the jail to report the incident to Dr. Ham, but she had to leave a message with the administrative office. After the call, Pierce was immediately brought to Porter's office where he also spoke with Dr. Ham. Pierce claimed that he was required to continue seeing Porter, who would video Pierce doing sexual acts. On two occasions, Deputy Farrell allowed Porter to close the office door during a session with Pierce, and Porter performed oral sex on Pierce behind the closed door.
Pierce also claimed that he was released from jail at some point and returned home. Id., Claim 2, at 6. During that time, Porter contacted him through social media on the pretense of helping him get his life back together. Porter soon began to offer Pierce drugs and gambling money in return for sex. When Pierce refused, Porter “assaulted” him. Pierce claimed that he reported the incident to the Sheriff's Office and was told to report it to the jail. He claimed that he went to the jail but he was not allowed to see the warden. Pierce then called Captain Weary, who instructed him to make a report. Pierce claimed that he filed every report he could, but they were either ignored or his words were twisted around.
Pierce further claimed that, on December 8, 2020, while housed in the jail, he was forced to sit for hours while handcuffed to an iron bench and soaked in his own urine. Id., Claim 3, at 7. He also claimed that, on May 13, 2021, while in the jail, he was physically assaulted by officers with use of excessive force and cruel and unusual punishment.
Pierce reiterated most of the allegations in his Compliant. He stated that Porter had been his mental health counselor at the STPJ since 2017. ECF No. 16, at 1. In February or March of 2020, Porter began making sexual comments to Pierce. Pierce tried to report that conduct on the PREA report line through the jail's phone system, but it was disconnected. He then had his friend, Alexis Perry, make calls to the jail. He was taken immediately to Porter's office. Porter offered to get Pierce in to a welding class and give him two cans of smokeless tobacco dip per week if Pierce would tell Dr. Ham that the reported allegation was a mistake. Pierce admittedly agreed, and Porter made the call to get him into the welding class, a program that did not start because of COVID. Porter then called Dr. Ham to his office for Pierce to tell Dr. Ham that the report was a mistake.
Pierce claimed that, after that incident and through Porter's last day working at the jail, Porter had Pierce perform sexual acts. On two occasions, Deputy Farrell let Porter close the office door which was against jail policy. While the door was closed, Porter would have Pierce record him performing oral sex on Pierce.
On another occasion, Porter told Pierce to go on suicide watch because Dr. Ham thought Pierce was seeing Porter too often. Porter had Pierce placed in segregation cell five where the guards could not see Porter stand at the door to watch Pierce masturbate. Id. at 2. Porter would also watch Pierce masturbate during his counseling sessions, which Porter recorded on his phone.
Pierce indicated that when he returned to jail, Porter no longer worked at the jail, so he renewed his complaints to the jail officials about the incidents. He claimed that this is when he began to be harassed, abused, put in danger, and had his rights violated by jail officials. As examples, he claimed that on December 7, 2020, he was on COVID-19 quarantine when an inmate served him food without wearing gloves or a mask. On December 8, 2020, Sergeant Robin handcuffed Pierce to a bench where he remained while soaked in urine because he was not allowed to go the bathroom. While Pierce sat there, his personal belongings were stolen by security officers. He filed a grievance complaint about the incident, but it was ignored. He did not receive a response to the grievance until he was already released and at home. He further claimed that Lt. Chatelain lied in the response.
Pierce also alleged that on May 20, 2021, Deputy Johnathan Lott ignored his due process rights and continued to do so. Pierce provided no facts or explanation for this statement.
He further alleged that, on July 9, 2021, after this suit was filed, Sergeant Harris and Corporal Glover placed him in a dorm, watched from “the Pod” as he was assaulted, and then they left the area. He claimed that he has been threatened and harassed on several other occasions by jail investigators Deputy Racheal Smith, Corporal Pelligrin, and Sergeant John Doe.
On December 8, 2021, I conducted a telephone conference with Pierce and counsel for the defendants participating in the conference call. ECF No. 36. Plaintiff was sworn and testified for all purposes permitted by Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), overruled on other grounds by Neitzke v. Williams, 490 U.S. 319 (1989), and its progeny. The conference was electronically recorded.
During the hearing, Pierce explained that he was in the STPJ after his arrest for a parole violation in December 2019 through his release in October 2020. He remained out of jail until he had another arrest on November 16, 2020. He posted bond on January 5, 2021, and remained out until he was arrested again on March 7, 2021.
Pierce testified that defendant Porter was his mental health counselor at the jail while he was incarcerated between December 2019 and October 2020. As far as he knew, Porter was employed by an outside company and worked at the jail as the mental health director. Porter had an office at the jail and was present at the jail daily until he was fired in 2020. Porter was not working in the jail when Pierce went back to jail in November 2020.
Pierce explained that, before COVID protocols were in place, Porter made sexual comments to him. Pierce had his girlfriend report this to the jail. Pierce stated that between December 2019 and October 2020, he saw Porter weekly. At some point, Porter began to have him perform sexual acts at each visit. Pierce stated that, on one occasion in Porter's office, Porter performed oral sex on him and had Pierce record it on a phone. Pierce recalled that, after another inmate attempted suicide at the jail, Dr. Ham told Porter that he was seeing Pierce too often. Porter then had Pierce put on suicide watch. While in cell five of the suicide watch area, Porter on two occasions would look through the hatch hole in the door of cell five to watch Pierce masturbate. Pierce claimed he did this at Porter's request, because watching him masturbate was Porter's favorite sexual activity.
Pierce also testified that Dr. Ham was the head doctor over the medical department, and he believe him to be Porter's boss. Pierce stated that he sued Dr. Ham because his girlfriend spoke to Dr. Ham about Porter's sexual comments and nothing was done. He claimed that the jail officials, including Dr. Ham, did not send investigators. Instead, after the complaint was made, Dr. Ham or someone had him sent to Porter's office. While there, Porter offered him a spot in a welding program if he would tell Dr. Ham that the complaints were not...
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