Gibson et al v. Gusman et al

Filing 30

ORDER AND REASONS ADOPTING REPORT AND RECOMMENDATIONS 24 and plaintiffs' complaint is dismissed with prejudice as frivolous. Ordered that plaintiffs' 22 MOTION for Preliminary Injunction is denied as set forth in document. Signed by Judge Ivan L.R. Lemelle.(ijg)(NEF: MJ Knowles)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PHILIP GIBSON, ET AL.

CIVIL ACTION

VERSUS

NO. 14-2273

MARLIN N. GUSMAN, ET AL.

SECTION “B”(3)
ORDER AND REASONS

Before the Court is a federal civil rights complaint filed
in

forma

pauperis

by

pro

se

Plaintiffs

Philip

Gibson,

Mark

Luzzo, and Benito Castro (“Plaintiffs”), pursuant to 42 U.S.C.
§ 1983.1

(Rec. Doc. 1).

Defendants

in

their

The complaint named the following

individual

and

official

capacities:

the

“City of New Orleans, Property Management Director, John Doe”;
Mayor

Mitch

Orleans

City

[sic]”;

the

Landrieu;

the

Council;

the

unidentified

unidentified
unidentified

“New

Orleans

members
state
Fire

of

“Fire

the

New

Marshall

Inspector”;

the

unidentified director of the “Department of Health and Human
Services”; the unidentified director of the state “Department of
Hospitals”; the unidentified deputy mayors of the City of New

1

In pertinent part, that statute provides:

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction
thereof
to
the
deprivation
of
any
rights,
privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit
in equity, or other proper proceeding for redress . . . .
42 U.S.C. § 1983 (2012).

Orleans;

Sheriff

Marlin

Gusman;

Chief

Earl

Weaver;

Chief

Bordelon; Directors Martin and Jenkins; Dr. Gore; Dr. Smith; and
Wardens Louque, Winfield, Pittman, and “John Doe.”

(Rec. Doc. 1

at 23-29).
For the reasons explained below, IT IS ORDERED THAT the
Magistrate Judge’s Report and Recommendation (Rec. Doc. 24) is
ADOPTED,

overruling

Accordingly,
for

IT

preliminary

instant

IS

ORDERED

injunction

objections
THAT

is

the

DENIED

and

to

same.

instant
the

motion

complaint

is

DISMISSED WITH PREJUDICE.
Cause of Action and Facts of Case:
Plaintiffs, who are incarcerated in Orleans Parish Prison
(“OPP”), allege various conditions of their confinement within
the OPP system violate their constitutional rights.
1 at 32-35).

Accordingly, Plaintiffs seek monetary damages, and

an injunction or transfer to another facility.
40).

After

(Rec. Doc.

filing

their

preliminary injunction.

complaint,

(Rec. Doc. 1 at

Plaintiffs

moved

for

a

(Rec. Doc. 22).

The matter was referred to United States Magistrate Judge
Knowles.2

On March 25, 2015, Judge Knowles, issued a Report and

Recommendation,

recommending

that

2

Plaintiffs’

motion

for

a

Additionally, it should be noted that Plaintiffs filed a
"Motion to Certify Class Action" (Rec. Doc. 11) which was denied
by the Magistrate Judge (Rec. Doc. 21 at 2).

2 

preliminary

injunction

with prejudice.

be

denied

and

the

complaint

(See Rec. Docs. 22; 24 at 14).

dismissed

On May 4, 2015,

Plaintiffs filed a timely objection to the Magistrate Judge’s
Report and Recommendation.3
Plaintiffs

allege

(Rec. Doc. 28 at 8).

four

separate

claims

under

§ 1983.

First, they have been exposed to hazardous substances, namely,
“toxic carcinogenic material” and black mold spores.
Doc. 1 at 37).
provide

adequate

Third,

Defendants

injury.

4

(Rec.

Second, the jail medical department fails to
medical
fail

to

care.

(Rec.

adequately

(Rec. Doc. 1 at 38).

Doc.

protect

1,

pp.

37-38).

Plaintiffs

from

Finally, the OPP’s inadequate

prisoner classification system has exposed Plaintiffs to a risk
of injury by violent inmates.

(Rec. Doc. 1 at 39).

Law and Analysis:
I.

Standard of Review

3

Plaintiffs signed and dated the objection May 4, 2015,
although the document was not filed with the Court until May 8,
2015.
Even so, the document was received by the Court before
the expiration of the 14 day period for filing a response. 28
U.S.C. § 636(b)(1) (2009).
4

Plaintiffs’ motion for preliminary injunction references
black mold, asbestos, and cigarette smoke as environmental
factors from which Courts have granted inmates relief and/or
damages.
However, Plaintiffs do not allege their own personal
exposure to these specific substances in the list of facts set
forth in the motion for preliminary injunction.
(Rec. Doc. 22
at pp. 4, 6-7, 9). Moreover, Plaintiffs fail to identify in the
complaint these substances, with the exception of black mold
spores, as substances to which Plaintiffs have suffered
exposure. (Rec. Doc. 1 at 37).
3 

Upon timely objection to a magistrate judge's findings and
recommendation,
determination
proposed
made.”5

the

of

district

those

findings

or

court

portions

“shall

of

the

recommendations

28 U.S.C. § 636(b)(1).

make

a

report

to

or

which

de

novo

specified

objection

is

“A judge of the [district] court

may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.

The judge may

also receive further evidence or recommit the matter to the
magistrate judge with instructions.”
When

a

prisoner

sues

an

Id.

officer

or

employee

of

a

governmental entity pursuant to 42 U.S.C. § 1983, the court is
obliged to evaluate the complaint and dismiss it without service
of process, if it is frivolous, malicious, fails to state a
claim upon which relief can be granted, or seeks monetary relief
from a defendant who is immune from such relief.

28 U.S.C. §

1915(e)(2); Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990).
Although

this

litigant’s

claims

determining

when

Court

construes

liberally,
such

it

complaints

a
has

are

pro

se

broad

civil

rights

discretion

frivolous.

Moore

in
v.

McDonald, 30 F.3d 616, 620 (5th Cir. 1994) (citing Haines v.
Kerner, 404 U.S. 519, 520 (1972));
Badge No. 153,

Macias v. Raul A. (Unknown)

23 F.3d 94, 97 (5th Cir. 1994).

5

The Fifth

In the instant case, Plaintiffs object to the Magistrate
Judge’s Report and Recommendation in its entirety.
(Rec. Doc.
28 at 8).
4 

Circuit has held that a complaint is frivolous “if it lacks an
arguable basis in law or fact.”

Reeves v. Collins, 27 F.3d 174,

176 (5th Cir. 1994) (citing Denton v. Hernandez, 504 U.S. 25
(1992)).
to

In making this determination, the Court is empowered

dismiss

claims

based

on

“indisputably

meritless

legal

theor[ies],” as well as those claims “whose factual contentions
are clearly baseless.”

Macias, 23 F.3d at 97.

A complaint

fails to state a claim on which relief may be granted when the
plaintiff fails to allege enough facts to state a claim that is
“plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 677
(2009).

These factual allegations, when assumed to be true,

must raise a right to relief above the speculative level.
Katrina
2007).
factual

Canal
A

Breaches

claim

is

allegations

Litig.,

facially
allow

495

F.3d

plausible

the

court

191,
when

to

draw

205
the

(5th

In re
Cir.

plaintiff's

the

reasonable

inference that defendant is liable for the alleged misconduct.
Iqbal, 556 U.S. at 678.
II.

Analysis
After

applicable

an

independent

law,

Recommendation,

and

the

analysis
Magistrate

Plaintiffs’

of

the

Judge’s

objection

to

complaint,
Report
the

the
and

Magistrate

Judge’s Report and Recommendation, the Court concludes that the
Magistrate Judge’s Report and Recommendation should be approved
and adopted over Plaintiffs’ objection.

5 

Improperly Named Defendants6
As a preliminary matter, Plaintiffs have improperly named a
number of Defendants in their complaint.
amend,

Plaintiffs’

reasons

explained

claims
below.

would

fail

Even if given leave to
on

Accordingly,

the

merits

Plaintiffs’

for

the

complaint

should be dismissed because it is frivolous, and otherwise fails
to

state

a

Additionally,
dismissal

sua

claim

upon

because

which

relief

Plaintiffs’

sponte,

can

underlying

Plaintiffs’

motion

be
claims

for

granted.
warrant

preliminary

injunction must also be denied because of the impossibility of
making the requisite showing of a “likelihood of success on the
merits.”
City Defendants
Included among the numerous Defendants are city officials
and

employees.

properly

The

identified,

majority

of

including:

those

“New

Defendants

Orleans

City

are

not

Council

Members, John Doe(s),” “New Orleans Fire Inspector, John Doe,”
and “City of New Orleans Deputy Mayors, John Doe(s).”
Generally,

Section

1983

claims

must

be

asserted

identified persons, rather than “John Doe” defendants.
v.

Terrebonne

Parish

Sheriff's

Office,

No.

08-4972,

against
Francis
2009

WL

4730707, at *3 (E.D. La. Dec. 9, 2009) (stating that "a § 1983

6

As mentioned above, Plaintiffs are suing all Defendants in
their individual and official capacities. (Rec. Doc. 1 at 29).
6 

action

must

be

filed

against

an

actual

identified

person");

Staritz v. Valdez, No. 3-06-CV-1926, 2007 WL 1498285, at *2
(N.D. Tex. May 21, 2007) (stating that "[t]he federal rules make
no provision for joining fictitious or 'John Doe' defendants in
an action under a federal statute");

Vollmer v. Bowles, No.

3:96-CV-0081, 1997 WL 102476, at *2 (N.D. Tex. Feb. 28, 1997) on
reconsideration

in

part,

No.

3:96-CV-0081-D,

1997

WL

135600

(N.D. Tex. Mar. 19, 1997) ("Neither the Federal Rules of Civil
Procedure nor 42 U.S.C. § 1983 provides authority for joining
fictitious defendants in this suit. The rules make no provision
for the naming of 'Does' and later substituting a real person's
name.").
Because
unidentified

Plaintiffs

cannot

individuals,

pursue

Plaintiffs’

a

lawsuit

claims

against

against

the

unidentified Defendants, including unidentified members of the
New

Orleans

City

Council,

unidentified

“New

Orleans

Fire

Inspector,” and unidentified deputy mayors must be dismissed as
frivolous and for otherwise failing to state a claim upon which
relief can be granted.

7

7

Plaintiffs have named “City of New Orleans, Property
Management Director, John Doe.”
The Magistrate Judge’s Report
and Recommendation lists this defendant among those that
Plaintiffs have improperly named because they are unidentified.
However, the Court concludes that this particular defendant is
not unidentifiable, but rather improperly named for reasons
explained in the following paragraphs.

7 

As noted above, Plaintiffs’ substantive claims concern the
condition

of

their

confinement

within

the

OPP.

As

the

Magistrate Judge correctly recognizes, neither the improperly,
nor the properly, named Defendants play any role in the day-today operation of the parish jails as a result of the statutorily
established division of responsibilities between the City of New
Orleans and the Orleans Parish Sheriff with respect to operation
of the parish prison system.
Because the Court adopts in full the Magistrate Judge’s
analysis

of

this

issue,

that

portion

of

the

Report

and

Recommendation is set forth in pleno here:
Put
simply,
the
City,
as
the
local
governing
authority, is responsible only for financing and
maintaining the jails, La. Rev. Stat. Ann. §§ 15:304,8
15:702,9
and
33:4715,10
while
the
Sheriff
is
responsible for the day-to-day operation of the jails,
La. Rev. Stat. Ann. §§ 13:5539(C)11 and 15:704.12 See,
8

La. Rev. Stat. Ann. § 15:304 provides in pertinent part:
"All expenses incurred in the different parishes of the state or
in the city of New Orleans by . . . confinement . . . of persons
accused or convicted of crimes . . . shall be paid by the
respective parishes in which the offense charged may have been
committed or by the city of New Orleans, as the case may be."
9

La. Rev. Stat. Ann. § 15:702 provides in pertinent part:
"The governing authority of each parish shall be responsible for
the physical maintenance of all parish jails and prisons."
10

La. Rev. Stat. Ann. § 33:4715 provides in pertinent part:
"The police jury of each parish shall provide . . . a good and
sufficient jail . . . .”
11
La. Rev. Stat. Ann. § 13:5539(C) provides in pertinent part:
"Each sheriff shall be keeper of the public jail of his parish
. . . ." This provision formerly appeared at La. Rev. Stat. Ann.
§ 33:1435(A).
8 

e.g., Fairley v. Stalder, 294 Fed. App'x 805, 812 (5th
Cir. 2008) ("We have examined Louisiana Revised
Statutes
sections
15:702,
15:704,
33:1435,
and
33:4715, and we agree that day-to-day operation of the
parish prison is the responsibility of the local
sheriff, and that financing and maintenance are the
responsibility of the local governing authority.").
This
division
of
responsibilities
was
concisely
explained in Broussard v. Foti, Civil Action No. 002318, 2001 WL 258055 (E.D. La. Mar. 14, 2001):
In Louisiana, sheriffs are the final policy
makers with respect to the management of
jails. See Jones v. St. Tammany Parish Jail,
4 F. Supp. 2d 606, 613 (E.D. La. May 8,
1998). Under Louisiana law, the authority of
the Orleans Parish Criminal Sheriff is
derived from the state Constitution, not
from the City of New Orleans. See La. Const.
art. 5 § 27. The sheriff's office, not the
City, controls the inmates of the jail, the
employees of the jail, and the daily
management and operation of the jail. See
La. R.S. § 33:1435; 15:704; O'Quinn v.
Manuel, 773 F.2d 605, 609 (quoting Amiss v.
Dumas, 411 So.2d 1137, 1141 (La.App. 1st
Cir.), writ denied, 415 So.2d 940 (La.
1982)).
Under the statutory framework, the
responsibility of the City of New Orleans'
is to finance and physically maintain the
jail. See Griffin v. Foti, 523 So.2d 935,
[938] (La.App. 4th Cir. 1988); see also
O'Quinn, 773 F.2d at 609. In Louisiana, the
legislative scheme dictates that the City of
New
Orleans
bears
the
obligation
of
satisfying
the
expenses
of
housing
prisoners, while the sheriff has the duty of
operating the facility. See Amiss, 411 So.2d
at 1141. The City has no authority over the
operations of the jail or the management of
the sheriff's employees. See Jones, 4 F.
Supp. 2d at 613; O'Quinn, 773 F.2d at 609

12

La. Rev. Stat. Ann. § 15:704 provides in pertinent part:
"Each sheriff shall be the keeper of the public jail of his
parish . . . ."
9 

(administration of the jail is province of
sheriff).
In
other
words,
the
City's
financial obligations do not constitute
authority
to
control
how
the
sheriff
fulfills his duties. See [Jones, 4 F. Supp.
2d] at 613 (citing Jenkins v. Jefferson
Parish Sheriff's Office, 402 So. 2d 669, 670
(La.
1981)).
Thus,
the
City's
responsibilities are limited to funding and
maintaining the jail. See La. R.S. § 15:702.
Broussard, 2001 WL 258055, at *2. Moreover, with
respect to the City's obligation to "maintain" the
jails, that obligation is one merely to fund, not
actually provide, any needed maintenance. Actual
provision
of
the
maintenance
is
the
Sheriff's
responsibility. See Rue v. Gusman, Civ. Action No. 096480, 2010 WL 1930936, at *4 (E.D. La. May 11, 2010);
Griffin v. Foti, 523 So.2d 935, 938-39 (La. App. 4th
Cir.), writ denied, 531 So.2d 272 (La. 1988).
Therefore, the city officials and employees named
in this lawsuit simply are not proper defendants with
respect to plaintiffs' claims. See, e.g., Rue, 2010 WL
1930936, at *3-4 (finding that there was no legal
basis for holding the City and its employees liable
for the conditions of the plaintiff's confinement
within the Orleans Parish Prison system in light of
the division of responsibilities between the City and
the Sheriff); Wade v. Gusman, Civ. Action No. 06-4541,
2006 WL 4017838, at *3 (E.D. La. Oct. 17, 2013)
("Because . . . [Mayor] C. Ray Nagin . . . had no
authority over the operations or employees of the
Orleans Parish Prison system, [he] cannot be held
legally responsible for the conditions within the
prison system . . . ."), adopted, 2007 WL 60998 (E.D.
La. Jan. 8, 2007); Galo v. Blanco, Civ. Action No. 064290, 2006 WL 2860851, at *2 (E.D. La. Oct. 4, 2006)
(finding that there was no legal basis for holding the
mayor liable for the conditions of the plaintiff's
confinement within the Orleans Parish Prison system in
light of the division of responsibilities between the
City and the Sheriff).
Accordingly, these claims should be dismissed as frivolous
and for otherwise failing to state a claim upon which relief can
be granted.

10 

State Defendants
Plaintiffs
Marshall

have

[sic],”

also

the

sued

the

unidentified

unidentified
director

of

state

“Fire

the

state

“Department of Health and Human Services,” and the unidentified
director of the state “Department of Hospitals.”13
Because the Court adopts in full the Magistrate Judge’s
analysis

of

this

issue,

that

portion

of

the

Report

and

Recommendation is set forth in pleno here:
Again, as already noted, naming unidentified
persons as defendants is generally improper. Second,
to the extent that plaintiffs are suing these
defendants for monetary damages in their official
capacities, that is also improper. State officials or
employees sued in their official capacities for
monetary damages simply are not considered "persons"
subject to suit under 42 U.S.C. § 1983. Will v.
Michigan Department of State Police, 491 U.S. 58, 71
(1989); Stotter v. University of Texas, 508 F.3d 812,
821 (5th Cir. 2007); American Civil Liberties Union v.
Blanco, 523 F. Supp. 2d 476, 479 (E.D. La. 2007);
Tyson v. Reed, Civ. Action No. 09-7619, 2010 WL
360362, at *4 (E.D. La. Jan. 21, 2010); Searls v.
Louisiana, Civ. Action No. 08-4050, 2009 WL 653043, at
*6 (E.D. La. Jan. 21, 2009); Demouchet v. Rayburn
Correctional Center, Civ. Action No. 07-1694, 2008 WL
2018294, at *3 (E.D. La. May 8, 2008). Additionally,
because a claim against a state official or employee
in his or her official capacity for monetary damages
is actually a claim against the state itself, such
claims are barred by the Eleventh Amendment. Williams
v. Thomas, 169 Fed. App'x 285, 286 (5th Cir. 2006);
Tyson, 2010 WL 360362, at *4; Searls, 2009 WL 653043,
13

The State of Louisiana does not have a “Department of Health
and Human Services” or a “Department of Hospitals.” Rather, it
has a “Department of Health and Hospitals. La. Rev. Stat. Ann.
§ 36:251 (West, WestlawNext through the 2014 Reg. Sess.).
Plaintiffs are presumably attempting to sue the head of that
department.
11 

at *6; Demouchet, 2008 WL 2018294, at *3.
Accordingly, these claims should be dismissed as frivolous
and for otherwise failing to state a claim upon which relief can
be granted.
Prison Officials and Employees
Plaintiffs have sued various OPP officials and employees,
including Warden “John Doe.”

This is generally improper for the

reasons explained above.
Of
remain:

the

Defendants

Orleans

Parish

listed

on

Sheriff,

the

Marlin

complaint,
Gusman;

these

OPP

few

Chief

of

Security, Earl Weaver; OPP “Chief of Operations, Bordelon;” OPP
Facilities

Managers

Martin

and

Jenkins;

OPP

Medical

Services

Directors Dr. Gore and Dr. Smith; OPP Wardens Louque, Winfield,
and Pittman.
suing

all

capacities.
allege

Plaintiffs indicate in the complaint that they are

Defendants

in

both

their

(Rec. Doc. 1, p. 29).

sufficient

facts

to

individual

and

official

However, Plaintiffs fail to

maintain

claims

against

these

Defendants in any capacity.
Section 1983 provides a federal cause of action against any
person who, acting under color of state law, deprives another of
his constitutional rights.

42 U.S.C. § 1983.

A plaintiff must

prove both the constitutional violation and that the action was
taken under color of state law.

Flagg Bros., Inc. v. Brooks,

436 U.S. 149, 156 (1978); Polk County v. Dodson, 454 U.S. 312

12 

(1981).

“A person acts under color of state law only when

exercising power ‘possessed by virtue of state law and made
possible

only

because

authority of state law.’”

the

wrongdoer

is

clothed

with

the

Thibodeaux v. Bordelon, 740 F.2d 329,

333 (5th Cir. 1984) (quoting United States v. Classic, 313 U.S.
299, 326 (1941)).
"Plaintiffs

suing

governmental

officials

in

their

individual capacities . . . must allege specific conduct giving
rise to a constitutional violation. This standard requires more
than conclusional assertions: The plaintiff must allege specific
facts giving rise to the constitutional claims."

Oliver v.

Scott, 276 F.3d 736, 741 (5th Cir. 2002) (citation omitted).
"Personal involvement is an essential element of a civil rights
cause of action."

Thompson v. Steele, 709 F.2d 381, 382 (5th

Cir. 1983).
Official capacity suits have been viewed as “another way of
pleading an action against an entity of which an officer is an
agent.”

Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th

Cir. 1999).

Consequently, to hold a governmental entity liable

based on an official-capacity claim in a section 1983 lawsuit,
the federal violation at issue must have resulted from a "policy
or custom" of that governmental entity.

Kentucky v. Graham, 473

U.S. 159, 166 (1985). Further, "[a] plaintiff may not infer a
policy merely because harm resulted from some interaction with a

13 

governmental entity."
237,

245

(5th

Cir.

Colle v. Brazos County, Tex., 981 F.2d
1993);

see

also

Wetzel

v.

Penzato,

Civ.

Action No. 09-7211, 2009 WL 5125465, at *3 (E.D. La. Dec. 23,
2009).

Rather, he must identify the policy or custom which

allegedly caused the deprivation of his constitutional rights.
See, e.g., Murray v. Town of Mansura, 76 Fed. App'x 547, 549
(5th Cir. 2003); Treece v. Louisiana, 74 Fed. App'x 315, 316
(5th Cir. 2003); Wetzel, 2009 WL 5125465, at *3.
Here,

Plaintiffs

do

not

make

any

factual

allegations

concerning the specific manner in which any of the Defendants
were personally involved in the acts or omissions giving rise to
the claims asserted.

Nor do Plaintiffs allege that their rights

were violated as a result of a governmental policy or custom,
let alone identify such a policy or custom.
Therefore, Plaintiffs have not provided facts sufficient to
maintain
capacity.

a

claim

against

Accordingly,

any
any

of

these

claims

Defendants

against

the

in

any

remaining

Defendants should be dismissed as frivolous and for otherwise
failing to state a claim upon which relief can be granted.
Nevertheless, even if the Court were to overlook, or give
Plaintiffs

an

opportunity

to

correct,

the

noted

defects

regarding the Defendants, Plaintiffs still would not be entitled
to

relief

because

their

underlying

merits, as discussed below.

14 

claims

also

fail

on

the

Exposure to Hazardous Substances (Claim 1)
Plaintiffs allege that they have been exposed to “toxic
carcinogenic materials,” yet only identified black mold spores
as one such material.

(Rec. Doc. 1 at 37).

Thus, Plaintiffs

have not stated a claim that rises to a level of constitutional
concern.
It

is

well

settled

that

prison

officials

must

provide

humane conditions of confinement, ensuring that inmates receive
adequate

food,

clothing,

shelter,

medical

care,

and

hygiene.

See Palmer v. Johnson, 193 F.3d 346, 351–52 (5th Cir. 1999)
(citing

Farmer

v.

Brennan,

511

U.S.

825,

832

(1994)).

Obviously, there is a point beyond which a prison's conditions
are so unsanitary as to render them unconstitutional.

See,

e.g., Gates v. Cook, 376 F.3d 323, 338 (5th Cir. 2004) (holding
that

confinement

fecal

matter,

paint,

and

in

“‘extremely

urine,
old

unconstitutional).

dried

food
That

filthy’

ejaculate,
particles

said,

it

[cells]
peeling

on
must

the
be

with
and

crusted
chipping

walls”

remembered

was
that,

although prisons should be reasonably clean, “[t]he Constitution
does not require that prisons be completely sanitized or as
clean or free from potential hazards as one's home might be.”
McAllister v. Strain, No. 09–2823, 2009 WL 5178316, at *3 (E.D.
La. Dec. 23, 2009); accord Talib v. Gilley, 138 F.3d 211, 215
(5th Cir. 1998) (“[T]he Constitution does not mandate prisons

15 

with

comfortable

surroundings

or

commodious

conditions.”).

Rather, the mere fact that mold is present does not render a
plaintiff’s confinement unconstitutional.
14-1153-DEK,

2015

WL

2066517,

at

*2

Smith v. Gusman, No.

(E.D.

La.

May

4,

2015)

(citations omitted).
Furthermore,
exposure

to

a

in

addition

hazardous

to

showing

substance

is

that

the

sufficiently

alleged
serious,

Plaintiffs must also show that Defendants acted with deliberate
indifference to Plaintiffs’ health or safety.
U.S. at 834.

See Farmer, 511

To establish deliberate indifference, the inmate

must allege facts which, if proved, show that prison officials
were aware of a substantial risk of serious harm and failed to
take reasonable measures to abate that risk.

See Hare v. City

of Corinth, 74 F.3d 633, 649 (5th Cir. 1996).

An official's

failure to alleviate a significant risk which he should have
perceived, but did not, cannot be condemned as the infliction of
punishment. See Farmer, 511 U.S. at 837–38; see also Reeves, 27
F.3d at 176.
Here, Plaintiffs have not stated a condition of confinement
claim

that

rises

to

a

constitutional

violation

because

they

identify only black mold spores as a hazardous substance to
which

they

present

allege
does

unconstitutional.

exposure,

and

not

render

Smith,

2015

the

16 

mere

fact

that

Plaintiffs’
WL

2066517,

at

mold

is

confinement
*2

(citations

omitted).
Furthermore,

Plaintiffs

have

not

shown

that

prison

officials were aware of a substantial risk of harm created by
the alleged mold spores and failed to take reasonable measures
to abate any such risk.
Defendants’

deliberate

Therefore, Plaintiffs have not shown
indifference

to

Plaintiffs’

health

or

safety, and have not otherwise shown a condition of confinement
that rises to a constitutional violation.
Accordingly, this claim should be dismissed as frivolous,
and for otherwise failing to state a claim upon which relief can
be granted.
Inadequate Medical Care (Claim 2)
Plaintiffs further claim that the jail medical department
“fails

to

respond

appropriately

to

life-threatening

issues.”

(Rec. Doc. 1, pp. 37-38).

However, Plaintiffs do not provide

adequate

this

facts

to

support

claim,

or

raise

it

above

a

speculative level.
A prisoner's right to medical care is violated only if his
“serious

medical

needs”

have

been

met

with

“deliberate

indifference” on the part of penal authorities.

See, e.g.,

Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir. 1999); Sandifer
v. Tanner, No. 14-2992, 2015 WL 2157352, at *9 (E.D. La. May 7,
2015).

“A serious medical need is one for which treatment has

been recommended or for which the need is so apparent that even

17 

laymen

would

recognize

that

care

is

required.”

Caldwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006).

Gobert

v.

Furthermore,

[d]eliberate
indifference
is
an
extremely
high
standard to meet . . . . [T]he plaintiff must show
that officials refused to treat him, ignored his
complaints, intentionally treated him incorrectly, or
engaged in any similar conduct that would clearly
evince a wanton disregard for any serious medical
needs . . . . And, the failure to alleviate a
significant risk that the official should have
perceived, but did not is insufficient to show
deliberate indifference.
Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th
Cir. 2001) (quotation marks, brackets, and citations omitted).
“Deliberate indifference encompasses only unnecessary and wanton
infliction

of

pain

repugnant

to

the

conscience

of

mankind.”

McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997); see
also Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999).
Here,

Plaintiffs

do

not

specifically

allege,

or

provide

facts to support, a claim that they—the Plaintiffs—have serious
medical needs.
claim

that

Nor do Plaintiffs provide facts to support a

Defendants

have

been

deliberately

indifferent.

Plaintiffs do not show that Defendants refused to treat them,
ignored

their

incorrectly,

or

complaints,
engaged

in

intentionally
any

similar

treated

conduct

that

them
would

clearly evince a wanton disregard for any serious medical needs.
To the extent that the Plaintiffs attempt to bring a claim

18 

on behalf of other inmates, Plaintiffs lack standing to do so.

14

See Gregory v. McKennon, 430 Fed. App’x 306, 310 (5th Cir. 2011)
(finding that a prisoner cannot necessarily bring claims under
42 U.S.C. § 1983 on behalf of other prisoners); Reeves, 37 F.3d
631 (5th Cir. 1994) (holding civil rights litigants must show a
constitutional violation of personal rights).
Thus, Plaintiffs have not pled sufficient facts to provide
this claim with an arguable basis in law or fact, or raise a
right to relief above the speculative level, even assuming that
all the facts alleged in the complaint were true.
this

claim

otherwise

should

failing

be
to

dismissed
state

a

as

claim

being
for

Therefore,

frivolous

which

relief

and
can

for
be

granted.
Failure to Meet Responsibilities to Prevent Harm and Protect
from Violence (Claims 3 and 4)
Additionally, Plaintiffs claim that “La State Departments”
fail to “respond appropriately to life threatening issues within
their know [sic] duty by law to act with authority in preventing
these injuries.” (Rec. Doc. 1 at 38).

Furthermore, Plaintiffs

claim that they “continue to sustain injury by Plaintiffs [sic]
that exhibit deliberate indifference to Plaintiffs substantial
risk of serious physical injury as a result of listed conditions

14

As previously noted, Plaintiffs’ motion to certify this
matter as a class action was denied. (Rec. Docs. 11 and 21).
19 

and exposure to violent persons thru [sic] lack of appropriate
classification in violation of Plaintiffs rights to be free from
cruel and unusual punishment under the Eighth and Fourteenth
Amendments to the United States Constitution.” (Rec. Doc. 1, pp.
38-39).

However, Plaintiffs do not provide a factual basis for

these claims.
[A] prison official cannot be found liable under
the Eighth Amendment for denying an inmate humane
conditions of confinement unless the official knows of
and disregards an excessive risk to inmate health or
safety; the official must both be aware of facts from
which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the
inference . . . . But an official's failure to
alleviate a significant risk that he should have
perceived
but
did
not,
while
no
cause
for
commendation, cannot . . . be condemned as the
infliction of punishment.
Farmer, 511 U.S. at 837-8.
Furthermore, it is “well established that prison officials
have a constitutional duty to protect prisoners from violence at
the hands of their fellow inmates.”

Longoria v. Texas, 473 F.3d

586, 592 (5th Cir. 2006) (citing Farmer, 511 U.S. at 832–33).
This duty, grounded in the Eighth Amendment, is nevertheless a
limited one.

To succeed on a failure-to-protect claim, “the

inmate must show that he is incarcerated under conditions posing
a substantial risk of serious harm and that the prison officials
acted

with

deliberate

indifference

to

the

inmate's

safety.”

Johnson v. Johnson, 385 F.3d 503, 524 (5th Cir. 2004) (internal

20 

quotation marks omitted); see also Daniels v. Williams, 474 U.S.
327, 330 (1986) (stating that mere negligence may not be enough
to state a claim under § 1983).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure,
a pleading must contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.”
556 U.S. at 678–79 (citing Fed.R.Civ.P. 8).

Iqbal,

“[T]he pleading

standard Rule 8 announces does not require ‘detailed factual
allegations,’

but

it

demands

more

than

an

defendant-unlawfully-harmed-me accusation.”

unadorned,

the-

Id. at 678 (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

See

Loughlin v. Tweed, No. 15-649, 2015 WL 3646777, at *4 (E.D. La.
June 10, 2015).
Here,

Plaintiffs

their claims of injury.

do

not

sufficiently

support

factually

Rather Plaintiffs merely make a number

of conclusory statements from which the Court must endeavor to
divine

the

nature

of

the

claims

that

Plaintiffs

attempt

to

assert, and which fail to meet the requirements of pleading
under Rule 8.
Moreover,

Plaintiffs’

assertion

that

the

OPP

inmate

classification system places Plaintiffs in harm’s way is not
sufficient to give rise to a federal claim.

Morrison v. Gusman,

No. 10-217 A, 2010 WL 724173, at *5 (E.D. La. Feb. 22, 2010)
(holding

conclusory

allegations

21 

are

insufficient

to

state

a

civil rights claim); see also Jones v. Diamond, 594 F.2d 997,
1015 (5th Cir. 1979) on reh'g, 636 F.2d 1364 (5th Cir. 1981)
(stating that district court orders requiring State prisons to
develop classification systems were not predicated on an Eighth
Amendment right to classification, but were used as remedies
employed

to

eradicate

abuses

that

were

themselves

unconstitutional); see also Jones v. Gusman, 296 F.R.D. 416,
430-31

(E.D.

including

La.

(stating

conditions

inadequate

an

2013)

of

prisoner

classification

confinement,
system,

may

establish an Eighth Amendment violation in combination only when
they

have

a

mutually

enforcing

effect

that

produces

the

deprivation of a single, identifiable human need such as food,
warmth,

or

Plaintiffs

exercise)
have

not

(citing

shown

that

Gates,
that

376

they

F.3d

are

at

333).

deprived

of

a

single identifiable need due to the alleged inadequacies of the
inmate classification system, alone or in any combination with
other allegations of conditions of confinement.

Plaintiffs have

not shown that they personally are particularly susceptible to
attack in the future due to the purported inadequacies of the
classification
conclusory

system.

statements

Instead,

insufficient

Plaintiffs
to

make

a

offer

federal

only
claim.

Iqbal, 556 U.S. at 678–79.
Having

failed

to

establish

a

factual

basis

for

the

allegations, claims 3 and 4 of the complaint should be dismissed

22 

as being frivolous and for otherwise failing to state a claim
for which relief can be granted.
Motion for Preliminary Injunction
Finally,
injunction.

Plaintiffs

have

filed

a

motion

for

preliminary

(Rec. Doc. 22).

A preliminary injunction is an “extraordinary remedy” that
a

movant

is

only

entitled

to

when

he

shows,

among

other

requirements, that his claim will succeed on the merits.

See

Douthit v. Dean, 568 Fed. App’x 336, 337 (5th Cir. 2014) (citing
Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009)).
Because all of Plaintiffs’ claims should be dismissed as
being frivolous and for otherwise failing to state a claim for
which relief can be granted, Plaintiffs are unable to make this
required

showing.

Accordingly,

Plaintiffs’

motion

for

preliminary injunction should be denied.
Conclusion
After

an

applicable

independent

law,

the

analysis
Magistrate

Recommendation,

and

Plaintiffs’

Judge’s

and

Recommendation,

Report

of

the

complaint,

Judge’s

objection
IT

IS

to

Report
the

ORDERED

the
and

Magistrate
THAT

the

Magistrate Judge’s Report and Recommendation should be APPROVED
and

ADOPTED

over

Plaintiffs’

objection.

Plaintiffs

have

improperly named a number of Defendants in their complaint and,
even if given leave to amend, Plaintiffs’ claims would fail on

23 

the merits for the reasons explained above.
Accordingly, IT IS ORDERED THAT Plaintiffs’ complaint is
DISMISSED WITH PREJUDICE because it is frivolous, and otherwise
fails

to

state

Additionally,
preliminary

IT

claim
IS

injunction

underlying
therefore

a

claims

which

relief

THAT

Plaintiffs’

ORDERED
is

warrant

impossible

upon

for

DENIED

because

dismissal

sua

Plaintiffs

to

can

all

be

motion

of

sponte,
make

granted.

the

for

Plaintiffs’
and

it

is

requisite

showing of a “likelihood that the claims will be successful on
the merits.”
New Orleans, Louisiana, this 18th day of August, 2015.

___________________________________
UNITED STATES DISTRICT JUDGE

24