Severin v. Orleans Parish Criminal Sheriff Office
| Decision Date | 15 October 2015 |
| Docket Number | CIVIL ACTION NO. 15-283 SECTION "H"(2) |
| Parties | KIRK PATRICK SEVERIN v. ORLEANS PARISH CRIMINAL SHERIFF OFFICE ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
Plaintiff, Kirk Patrick Severin, is a prisoner currently 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 Sheriff Marlin N. Gusman and Captain Russell Rhodes. Severin alleges that while incarcerated in OPP, he was subjected to various unconstitutional conditions of confinement. He seeks compensatory and punitive damages in the amount of $1.5 million. Record Doc. No. 5 ().
On April 14, 2015, I conducted a telephone conference in this matter. Participating were plaintiff pro se; and Pete Matthews, 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.
After the conference, Severin filed a motion to amend his complaint to expand upon his claim of unconstitutional conditions of confinement. Defendants subsequentlyfiled an opposition memorandum. Record Doc. Nos. 19 and 21. Defendants argue that the motion should be denied because plaintiff's amendment is futile because it fails to state a claim upon which relief can be granted. Plaintiff's testimony during the Spears hearing has been considered in connection with this motion.
Severin testified that he was originally arrested on December 15, 2014, and charged with possession of a stolen car, which has since been reduced to unauthorized use of a motor vehicle. He stated that, at the time of the conference, he was a pretrial detainee and had been held in the Tent 3 facility of OPP since his arrest. Severin confirmed that he asserts four kinds of legal claims in this case, involving conditions, medical care, outdoor recreation and access to legal materials.
As to his first claim that he has been exposed to unconstitutional conditions of confinement at OPP, he testified that OPP Tent 3 is full of spores, dust, mildew, bacteria and microorganisms. He alleged that mattresses used by the inmates are kept on the floor "where rodents and other things run all night," and "sometimes the floors are wet, sticky, and those things have residual contaminated germs on them, and . . . are never, ever cleaned." He stated that some inmates use old mattress covers as shower curtains, which "hold all types of germs [and] mildews."
Severin stated that all day causes the mildew to return.
Severin alleged that "little black worms" or "bugs, I call them leaches," crawl out of the shower drains. He said that the periodic spraying of bleach is neither regular nor consistent and has only happened "once or twice" during the four months he has been in Tent 3. He said that "some time in the morning" other cleaning efforts are also made by inmates, who "try to mop it" perhaps "three times a week." Severin stated that he did not know exactly what the inmates use to clean the area, although "it's a soap, I'm sure," but those cleaning attempts are not enough to eradicate the residual dust, mold and mildew. He testified that during one such cleaning effort, dust fell from the overhead light fixtures onto his bed and the floor, and he picked up the dust with an old towel. Severin said brooms and other cleaning materials are never left in the tent. He described the inmates' cleaning efforts as mopping the shower and scrubbing the bottom of the floor, but
Severin testified that he has made numerous sick call requests and medical visits, but he believes that OPP medical staff are not prepared to treat illnesses resulting from spores, mildew and possible airborne pathogens. He described his symptoms as
Severin stated that he had received the medical records I ordered defendants to produce, Record Doc. Nos. 10 and 16, and that "they're accurate to a certain extent," but he did not see in those records all of the sick call requests he had submitted. He acknowledged the accuracy of the notation in the records "where they gave me sinus medicine for three or four days or seven days, but that's not the answer." He also confirmed the indication in the medical records that on January 8, 2015, he was seen by a doctor on an "acute care visit" for his various symptoms, at which time he was provided with Zyrtec and advised to stay hydrated by drinking water every day. He also confirmed the notation in his medical records that he takes Benadryl when he is not in jail because "some time my skin develops an itch in air-condition(ing)." He also acknowledged the accuracy of the medical record indicating that he saw Dr. Nguyen at the jail on January 13, 2015, at which time he received cerozine, an antihistamine, for about a week. He said he had spoken about these same symptoms to several OPP medical workers who dispense medication at the jail on various occasions, but he complained that sometimes it takes 12 to15 days to see a doctor after he requests attention.
Severin opined that the medical care at the jail has been inadequate in that "they're ill-equipped to treat [conditions caused by] mildew and your respiratory system that's rejecting this stuff." He said his throat ailments and coughing have never been as bad as he is experiencing in the jail. Severin admitted that no doctor has ever diagnosed hiscondition as COPD. He asserted that he has filed numerous grievances about the dust and other conditions in the tent unit of the jail, but without any satisfactory response. He described the conditions as "just ridiculous," and alleged that jail officials have admitted that they know about the dust but can do nothing about it.
Severin also testified that he has received no outdoor recreation whatsoever while incarcerated in OPP. He said the only times he has been outdoors during his OPP incarceration were to clean the tents, so deputies could take away things the inmates are not supposed to have in their possession in jail or to do "something with a vacuum cleaner" to the air-conditioning system, although he complained that the dust returned shortly after these vacuuming efforts. As to recreation, Severin said, "you just have to do what you have to do." He said inmates sometimes try to exercise indoors in the tents at night, particularly in the day room, when inmate traffic subsides, but he said he never exercises in the day room himself because "it's too noisy and there's too much ignorance in that area."
As to his claim of insufficient access to legal materials, Severin complained that he is unable to obtain copies of paperwork needed for his court filings, which sometimes causes him problems with meeting court deadlines. He admitted that legal assistance personnel at the jail respond to his requests, but he complained that it takes too long. Asked specifically what effect these problems had on his court cases, he stated that various filings required by this court in the instant case, such as the account verificationneeded to support his application to proceed as a pauper, had been delayed. He conceded, however, that the court permitted him additional time to make his submissions, which he ultimately succeeded in doing. He stated that he had experienced no problems with any other copying of legal papers, other than in connection with the instant case in this court.
In summary, Severin complained that he continues to experience daily problems with coughing, sneezing, headaches and post-nasal drip caused by the dust and mold conditions in the jail facility.
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, 589F. 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)).
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