Tucker v. Gusman
| Decision Date | 23 October 2015 |
| Docket Number | CIVIL ACTION NO. 15-1811 SECTION "E" (2) |
| Parties | BRANDON D. TUCKER v. SHERIFF MARLIN N. GUSMAN |
| Court | U.S. District Court — Eastern District of Louisiana |
Plaintiff, Brandon D. Tucker, 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 the Orleans Parish Criminal Sheriff Marlin N. Gusman. Tucker alleges that while incarcerated in OPP, he was subjected to various unconstitutional conditions of confinement and denied adequate medical treatment. He seeks monetary damages. Record Doc. Nos. 1 and 9 ().
On July 16, 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.
Tucker testified that he has been incarcerated as a pretrial detainee in the old jail building of OPP for about one year since his arrest on July 9, 2014, on charges of attempted first degree murder and armed robbery. He said that no trial date has yet been set for him in the state criminal court. Tucker confirmed the assertions in his written submissions that his claims in this case arise from allegedly unconstitutional conditions of confinement in OPP and denial of adequate outdoor recreation activities. During his testimony, however, he also complained that his medical care for a foot fungus and rash he contracted allegedly as a result of the conditions has been inadequate.
Specifically, Tucker testified that he has been housed on Tier B-3 of the old OPP jail building throughout his incarceration. He stated that he has been exposed to mold and mildew in the showers and on the ceiling. He alleged that he has contracted a foot fungus as a result of his exposure to mold in the showers and that, although he was prescribed an erythromycin ointment by OPP medical personnel for that condition in March 2015, he had not yet received any of it. He confirmed the accuracy of the notations to that effect in his medical records, which had been produced by defendant in response to my order, Record Doc. Nos. 6 and 15, except that Tucker testified that he had not refused the ointment at any time, as the records reflect. Neither plaintiff nor defense counsel could confirm the accuracy of the notations in the medical records indicating that the prescribed ointment was "out of stock" at the jail.
Tucker testified that his foot condition was "rashing up right now," in that the fungal irritation had started small but was getting worse. He complained that inmateslike himself are not provided with proper cleaning "chemicals" that might eliminate the mold and mildew from the showers. He said that the exposure to mold and mildew gets worse with daily showering. He said a nurse at the jail had checked his foot condition, but the condition is becoming more irritated.
Tucker testified that the inmates attempt to clean the mold and mildew daily with materials provided by jail staff and that "it helps to a certain extent," but does not eliminate the problem. Tucker did not know specifically what kind of cleaning materials are being provided and used, but he said the inmates try to clean the shower area with the materials supplied. He confirmed that jail personnel supply the inmates daily with cleaning fluid "in Styrofoam cups" and expect the inmates themselves to do the cleaning. He stated that sometimes the cleaning materials have "a strong odor," but he said they are not sufficient to eliminate the mold problem, despite the inmates' daily cleaning efforts. He said that jail personnel also provide the inmates daily with a mop and broom to do the cleaning, but not with a shower brush to scrub the area.
Tucker also complained that the "eating table" in his jail unit is made of metal and is rusty and covered with old blue paint, and these conditions cause him to suffer skin irritation and itching. He said he has to stand up to eat his food because he cannot sit and use the table to eat properly.
Tucker testified that his outdoor recreation opportunities are also insufficient. He said he is taken outside for recreation once a week to a courtyard equipped with basketball goals and enough room to walk around, play sports, play chess and "inhale the fresh air." He explained that his complaint concerning recreation is that he should be taken outdoors more than once a week.
At the conclusion of the conference, I ordered defendant immediately to provide plaintiff with the previously prescribed erythromycin ointment for his foot condition and to arrange to transport plaintiff to a physician for an examination of his condition for all purposes contemplated by Fed. R. Civ. P. 35. Defendant complied, and the records of that treatment and examination, defense counsel's letter dated July 27, 2015, and Dr. Xuong Nguyen's report have now been provided to the court and filed under seal in this matter. Record Doc. Nos. 14 and 16. Specifically, Dr. Nguyen's report states the following:
As to the erythromycin ointment that plaintiff stated he had not received for his rash, Dr. Nguyen further stated in his report that "Mr. Tucker had been treated with Erythromycin eye ointment from 3/7/15-3/16/15, for an eye infection, which also, successfully resolved." Id., Record Doc. No. 16-1 (Sealed Report) (emphasis added).
Before the Spears hearing, defendant filed a motion to dismiss plaintiff's claims pursuant to Fed. R. Civ. P. 12(b)(6) on grounds of failure to state a claim upon which relief can be granted. Record Doc. No. 3. Plaintiff failed to file a response to defendant's motion, despite having been granted an extension of time to do so. Record Doc. Nos. 7 and 12. The motion remains pending and is addressed in this report.
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 failto 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 definitestatement 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, ...
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