Warren v. Gusman
| Decision Date | 09 March 2017 |
| Docket Number | CIVIL ACTION NO. 16-15046 SECTION "G" (2) |
| Parties | DOC EUGENE WARREN, III v. MARLIN N. GUSMAN ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
Plaintiff, Doc Eugene Warren, III, is a prisoner incarcerated in the Justice Center of 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; Correct Care Recovery Solutions; Aramark Correctional Services, LLC (incorrectly named by plaintiff as Airmark Food Service); and Nurse Martin. Warren alleges that he was subjected to unconstitutional conditions of confinement, including lack of privacy, improper meals, inadequate medical care and verbal harassment, while incarcerated in OPP. He seeks monetary damages and injunctive relief. Record Doc. No. 1 (Complaint at ¶¶ IV and V).
On November 15, 2016, I conducted a telephone conference in this matter. Participating were plaintiff pro se; Charlin Fisher, Stephanie Murphy and Adam Zuckerman, 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.
Warren testified that he is currently incarcerated in OPP as a pretrial detainee on a robbery charge. He stated that he has been incarcerated in OPP since May 16, 2016, when he was extradited to Louisiana from Georgia. Warren confirmed that he asserts four kinds of claims arising from his incarceration in OPP, including (1) his privacy rights have been violated because he is subject to video surveillance while using the bathroom, (2) he has received inadequate medical care, (3) his meals are inadequate and (4) he has been subjected to verbal mistreatment.
As to his first claim, Warren complained that Sheriff Gusman illegally uses surveillance video in the jail. He stated that, "every time I use the bathroom, I'm being exposed to the web cameras . . . set up to monitor the inmate population." He testified that, upon his arrival at OPP, "there were partitions up in the restroom area," but "Sheriff Gusman ordered the engineers to take the partitions down" due to some other "mitigating factors;" specifically, a lawsuit filed as a result of an inmate having committed suicide in the bathroom. Warren confirmed his understanding that the partitions were taken down to prevent that kind of inmate harm, but he alleged that "all the world can see" him when he uses the bathroom. He speculated that any person with the proper "website information" could pull up the OPP security video on a smart phone.
Warren said he believes that anyone with access to the OPP website can view video of what is seen on the OPP security cameras because he saw an OPP guard use her phone to view video of a recent fight between inmates in the bathroom area of the jail, so that "shecould see who the aggressor was." He said that, if that guard could see the video on her phone, he assumed that any member of the public could also view the OPP security videos, although he conceded he did not know that as a fact. "Anybody could hack into it," he said, adding particularly that "my concern is that there should have been partitions to replace the ones that they took down." Warren said that partitions were formerly located between the toilet stalls, separating each stall so that inmates could "have a little privacy from the next guy." He alleged that the OPP security camera can see everything now, "so you don't have any privacy anymore."
As to his medical care claim, Warren acknowledged that he had received the OPP medical records that I previously ordered the sheriff to produce; that he had not yet finished reviewing them; and that what he had reviewed thus far was accurate, except that records concerning some of his doctors' appointments and his medical complaints were not there. For example, he stated that he had seen Dr. Kennedy at OPP for a medical review regarding his hernia and that Dr. Kennedy told Warren he needed a hernia operation but would probably not get it because of lack of funding. Plaintiff said that the medical records did not reflect that conversation.
Warren testified that he reported to intake deputies upon his arrival at OPP from Georgia that he had been scheduled for hernia surgery in Georgia before his extradition. He stated that the scheduled hernia operation in Georgia was cancelled when the extradition papers were served. He stated that he told OPP medical staff about the cancellation, but nothing had been done at OPP to obtain his hernia operation, despite his "excruciatingpain" from the condition. Warren testified that a doctor at the Atlanta Pretrial Detention Facility had recommended hernia surgery at Grady Hospital in Georgia. He said he has not received hernia surgery or any other attention for his hernia at OPP, except Motrin for the pain.
Warren was asked during his testimony about the following notation in one of his medical records entitled "Progress Notes," signed by Dr. Dunbar and dated July 5, 2016: 2 Warren stated that he had not seen that particular record, but he noted Dr. Kennedy's separate June 29, 2016 "Physician's Orders" in the records referring him for a surgery consult, which he said was the surgery consultation he had on July 5, 2016 with Dr. Dunbar. Warren also confirmedthe notations in his medical records that he had been prescribed and received both Mobic3 and naproxen4 for pain resulting from the hernia, but said he had refused the Mobic after a few usages because he concluded it was not working. He also confirmed that he was seen by Dr. Gonzales in a chronic care unit on July 12, 2016, for both his hernia and hepatitis C. He said that Dr. Gonzales told him to contact the medical unit at OPP if his hernia continued to hurt. Plaintiff complained that his hernia continues to cause pain and that he is not taking naproxen because it does not work and "somebody told me . . . it wasn't nothing but a souped up Tylenol," so he refused to take any more naproxen or Mobic.
Warren stated that he also has hepatitis C, which affects his liver, and "that's one of the reasons that it's not good [for me] to take a lot of pain pills." He testified that he had spoken about his treatment to Dr. Kennedy at OPP, who said "we gotta treat you for hepatitis A and hepatitis B," because "otherwise you could die." Warren complained that he was required to request special blood testing for hepatitis C. He confirmed that he had been blood-tested for hepatitis C about three weeks before the hearing.5
Warren testified that he also suffers from various allergies. He confirmed the references in his medical records that he has received various medications for his allergies, including a recent Benadryl6 injection. He expressed dissatisfaction, however, that he has not been sent for special testing to determine the exact allergen in the jail to which he is allergic. He asserted that, while the medications he receives address his symptoms, only the special allergy testing he seeks will provide a real remedy because it seems to him that something in the jail causes him to break out in hives. He said he was scheduled to see a doctor at OPP at the conclusion of the conference that day, having already been seen by a doctor at OPP as recently as one week earlier for the same thing.
Warren stated that he had an accident before his incarceration in which a forklift ran over his right foot. He said he had hired a lawyer7 to pursue a claim and had seen several doctors at the Louisiana Pain Clinic to treat his foot. He stated that he had received "a tennis shoe profile" from that clinic, which he asked the OPP doctors to fill but without a response to date, because it is difficult for him to walk.
In summary, Warren said,
As to his claim concerning inadequate meals, Warren testified that He stated that his diet requires that he eat no seasoning, no fish and no mayonnaise products. Asked what he can eat, he said, "I can eat food that is not seasoned, properly prepared vegetables, stuff like that." He said "properly prepared" means "properly cooked," not food that is "overcooked" like at OPP, where he said the food is cooked off-site, then transported to the inmates in a "hot box" that keeps the food warm, but also continues to cook it.
Asked to describe the content of his daily meals, Warren said that breakfast includes grits, sausages, potatoes, bread, oatmeal, eggs or cereal; lunch includes meat with seasoning "until recently," potato salad, macaroni salad, bologna, peanut butter and ham salad; and dinner includes fish, potatoes with bread, macaroni salad, and sometimes rice and beans with meat added. He complained that, although he gets vegetables, he does not get fruit or milk. He said he cannot eat the food at OPP because he is allergic to seasonings, fish and mayonnaise products. He stated that he had "lost a few pounds" while in jail and that he weighs about 205 pounds and is 6'3" tall. He said he was diagnosed with these food allergies in 2002 while he was in prison in Alabama.
As to his final claim of verbal mistreatment by Nurse Martin, Warren testified...
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