Severin v. Gusman et al

Filing 24

REPORT AND RECOMMENDATIONS re 5 Complaint filed by Kirk Patrick. For all of the foregoing reasons, it is RECOMMENDED that plaintiff's complaint be DISMISSED WITH PREJUDICE as legally frivolous and/or for failure to state a claim under 28 U.S.C. 1915(e)(2) and 42 U.S.C. 1997e(c)(1). ORDER AND REASONS DENYING 19 MOTION to Amend/Correct 5 Complaint. Objections to R&R due by 10/30/2015. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 10/15/2015.(my)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KIRK PATRICK SEVERIN

CIVIL ACTION

VERSUS

NO. 15-283

ORLEANS PARISH CRIMINAL
SHERIFF OFFICE ET AL.

SECTION “H”(2)

ORDER AND REASONS ON MOTION TO AMEND;
REPORT AND RECOMMENDATION
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 (Complaint at ¶¶ IV and V
and Attachments).
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 subsequently

filed 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.
THE RECORD
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 “they just started recently [to] come and spray bleach, but from
my experiences with spores and mildew, they constantly grow and it discolors the
2

mildew, [which] still has rapid growth when you spray it. I think it will put it maybe
dormant, . . . [but] two showers running” 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 “it’s
just not enough. It keeps me sneezing, coughing; my throat is sore right now.”
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 “flu,
cold-like symptoms, . . . I feel like I’m developing . . . COPD [chronic obstructive
pulmonary disease]. It feels like it’s shortening my wind.”

3

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 his
4

condition 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 verification
5

needed 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.
ANALYSIS
I.

STANDARDS OF REVIEW
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, 589

6

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)
(quoting former 28 U.S.C. § 1915(d), now incorporated in 28 U.S.C. § 1915(e), as
amended). 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 definite
statement 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
7

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. “The
Court should allow proper cross-examination and should require that the parties properly
identify and authenticate documents. A defendant may not use medical records to refute
a plaintiff’s testimony at a Spears hearing.” Id. (citing Wilson, 926 F.2d at 482-83;
Williams v. Luna, 909 F.2d 121, 124 (5th Cir. 1990)). However, “’[m]edical records of
sick calls, examinations, diagnoses, and medications may rebut an inmate’s allegations
of deliberate indifference.’” Gobert v. Caldwell, 463 F.3d 339, 347 n.24 (5th Cir. 2006)
(quoting Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995)) (internal citations
omitted).
After a Spears hearing, the complaint may be dismissed as legally frivolous if it
lacks an arguable basis in law, Jackson v. Vannoy, 49 F.3d 175, 176-77 (5th Cir. 1995);
Moore v. Mabus, 976 F.2d 268, 269 (5th Cir. 1992), or “as factually frivolous only if the
facts alleged are ‘clearly baseless,’ . . . [or] when the facts alleged rise to the level of the
irrational or wholly incredible.” Id. at 270.
8

“’A complaint lacks an arguable basis in law if it is based on an indisputably
meritless legal theory, such as if the complaint alleges the violation of a legal interest
which clearly does not exist.’” Davis, 157 F.3d at 1005 (quoting McCormick v. Stalder,
105 F.3d 1059, 1061 (5th Cir. 1997)). “When a complaint raises an arguable question
of law which the district court ultimately finds is correctly resolved against the plaintiff,
dismissal under Rule 12(b)(6) is appropriate; however, dismissal under the section
1915(d) standard is not.” Moore, 976 F.2d at 269. A prisoner’s in forma pauperis
complaint which fails to state a claim may be dismissed sua sponte at any time under 28
U.S.C. § 1915(e)(2) and 42 U.S.C. § 1997e(c)(1).
In this case, plaintiff’s complaint may be dismissed under 28 U.S.C. § 1915(e) and
42 U.S.C. § 1997e(c)(1), either as legally frivolous, because his claims lack an arguable
basis in law, or under Rule 12(b)(6) in light of his testimony explaining the factual basis
of his claims. Plaintiff’s complaint, as amended by his testimony at the Spears hearing,
fails to state a cognizable claim of violation of his constitutional rights, even under the
broadest reading.1

1

The court must “liberally construe briefs of pro se litigants and apply less stringent standards to
parties proceeding pro se than to parties represented by counsel,” Smith v. Lonestar Constr., Inc., 452
F. App’x 475, 476 (5th Cir. 2011) (quotation omitted); Moore v. McDonald, 30 F.3d 616, 620 (5th Cir.
1994), and I have done so in this case.

9

II.

UNSANITARY CONDITIONS
Plaintiff’s testimony confirmed his written allegations concerning unsanitary

conditions during his incarceration in OPP. Severin was a pretrial detainee at all times
that form the basis of his claims in this case. Regardless whether an inmate is a pretrial
detainee or a convicted prisoner, the standard of liability is the same for episodic acts or
omissions of jail officials of the type alleged in this case. McCarty v. Zapata County,
243 Fed. Appx. 792, 2007 WL 1191019, at *1 (5th Cir. Apr. 20, 2007) (citing Gibbs v.
Grimmette, 254 F.3d 545, 547 (5th Cir. 2001); Hare v. City of Corinth, 74 F.3d 633, 636
(5th Cir. 1996)); Olabisiomotosho v. City of Houston, 185 F.3d 521, 526 (5th Cir. 1999).
In Hare, the Fifth Circuit held
(1) that the State owes the same duty under the Due Process Clause and the
Eighth Amendment to provide both pretrial detainees and convicted
inmates with basic human needs, including medical care and protection
from harm, during their confinement; and (2) that a state jail official’s
liability for episodic acts or omissions cannot attach unless the official had
subjective knowledge of a substantial risk of serious harm to a pretrial
detainee but responded with deliberate indifference to that risk.
Hare, 74 F.3d at 650.
Here, nothing in plaintiff’s written submissions or Spears testimony leads to an
inference that the condition he described was the result of a prison official’s act either
“implement[ing] a rule or restriction or otherwise demonstrat[ing] the existence of an
identifiable intended condition or practice” or that the “official’s acts or omissions were
sufficiently extended or pervasive, or otherwise typical of extended or pervasive
10

misconduct by other officials, to prove an intended condition or practice.” Id. at 645.
Thus, the complained-of harm is a particular act or omission of one or more officials, and
the deliberate indifference standard enunciated in Estelle v. Gamble, 429 U.S. 97, 104
(1976), applies. Olabisiomotosho, 185 F.3d at 526; Tamez v. Manthey, No. 09-40310,
2009 WL 4324808, at *4 (5th Cir. 2009).
Applying this standard, Severin’s allegations do not rise to the level of violations
of the Constitution. Two requirements must be met before Section 1983 liability will
arise for constitutional violations relating to conditions of confinement of the type
plaintiff described.
First, the alleged deprivation must objectively be “sufficiently serious,” which
means that “the inmate must show that he is incarcerated under conditions posing a
substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 847 (1994). To rise
to the level of a constitutional violation, the conditions must be “‘so serious as to deprive
[plaintiff] of the minimal measure of life’s necessities,’ in this case the basic human need
for sanitary conditions.” Alexander v. Tippah County, 351 F.3d 626, 630 (5th Cir. 2003)
(quoting Woods v. Edwards, 51 F.3d 577, 581 (5th Cir. 1995)).
Second, the inmate must show that a prison official was deliberately indifferent
to inmate health or safety. Farmer, 511 U.S. at 847. A prison official cannot be held
liable “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
11

that a substantial risk of serious harm exists, and he must also draw the inference.” Id.
at 837 (emphasis added).
The Supreme Court has recently reaffirmed that “‘deliberate indifference’
is a stringent standard of fault, requiring proof at a municipal actor
disregarded a known or obvious consequence of his action.” . . . The
“deliberate indifference” standard permits courts to separate omissions that
amount to an intentional choice from those that are merely unintentionally
negligent oversight[s].
Southard v. Tex. Bd. of Crim. Justice, 114 F.3d 539, 551 (5th Cir. 1997) (quoting Bd. of
County Comm’rs v. Brown, 520 U.S. 397, 410 (1997) (other quotations omitted))
(emphasis added). “‘Subjective recklessness,’” as used in the criminal law, is the
appropriate test for deliberate indifference.” Norton, 122 F.3d at 291 (citing Farmer, 511
U.S. at 838-40).
Severin’s written allegations and testimony meet neither of these two
requirements. The conditions described by plaintiff, while plainly not comfortable or
pleasant, do not rise to a level of seriousness constituting a constitutional violation.
Severin conceded in his testimony that the only physical injury or illness he has suffered
as a result of the allegedly unsanitary conditions or limited outdoors exercise are minor,
common respiratory complaints. Thus, he alleges no serious harm or risk of serious harm
in the constitutional sense, and the court can perceive none under the circumstances
described in plaintiff’s testimony and written submissions.
Short term sanitation problems, although admittedly unpleasant, do not amount
to constitutional violations. Whitnack v. Douglas County, 16 F.3d 954, 958 (8th Cir.
12

1994); Knop v. Johnson, 977 F.2d 996, 1013 (6th Cir. 1992); Robinson v. Illinois State
Corr. Ctr., 890 F. Supp. 715, 720 (N.D. Ill. 1995). “[J]ails must provide only reasonably
adequate hygiene and sanitation conditions.” Burton v. Cameron County, 884 F. Supp.
234, 241 (S.D. Tex. 1995) (citing Green v. Ferrell, 801 F.2d 765, 771 (5th Cir. 1986));
accord Benshoof v. Layton, No. 09-6044, 2009 WL 3438004, at *4 (10th Cir. Oct. 27,
2009); Gates v. Cook, 376 F.3d 323, 342 (5th Cir. 2004).
Serving time in prison “is not a guarantee that one will be safe from life’s
occasional inconveniences.” Holloway v. Gunnell, 685 F.2d 150, 156 (5th Cir. 1982).
Courts have repeatedly held “that the Constitution does not mandate prisons with
comfortable surroundings or commodious conditions.” Talib v. Gilley, 138 F.3d 211,
215 (5th Cir. 1998) (citing Rhodes v. Chapman, 452 U.S. 337, 349 (1981)); accord
Hernandez v. Velasquez. 522 F.3d 556, 560 (5th Cir. 2008).
Severin’s allegations about mold, mildew and dirty conditions at the jail fail to
establish constitutional violations. See Davis, 157 F.3d at 1006 (no constitutional injury
when plaintiff was confined in “filthy” cell) (citing Smith v. Copeland, 87 F.3d 265, 269
(8th Cir. 1996) (no constitutional violation when prisoner was exposed for four days to
raw sewage from overflowed toilet in his cell)); Davis v. St. Charles Parish Corr. Ctr.,
No. 10-98, 2010 WL 890980, at *9 (E.D. La. Mar. 8, 2010) (Lemmon, J.) (citing Talib,
138 F.3d at 215); Wilson v. Lynaugh, 878 F.2d 846, 849 & n.5 (5th Cir. 1989)) (Inmate
who complained of “unsanitary practice[s],” including inadequate ventilation, unsanitary
13

water fountains, 52 inmates using one ice cooler, rest room four feet from the dining area,
toilets leaking water and unsanitized living quarters, failed to state a claim. “Simply
because [plaintiff’s] dorm is less sanitary than he would like does not render the
conditions unconstitutional.”). As the Fifth Circuit recently held in Brauner v. Coody,
No. 12-314, 2015 WL 4393788, at *4-5 (M.D. La. July 17, 2015) (Africk, J.), no
constitutional violation occurs when showers are cleaned with bleach, and the prisoner
was provided a disinfectant spray bottle for his personal use. The court specifically noted
that failure of prison officials to maintain germ-free showers is not cruel and unusual
punishment.
In two other cases, the Fifth Circuit has held that extreme, virtually permanent
conditions of cells that contained excrement and other filth violate the Eighth
Amendment. In Harper v. Showers, 174 F.3d 716, 716 (5th Cir. 1999), there were
“continual” conditions of “filthy, sometimes feces-smeared cells,” and in Gates v. Cook,
376 F.3d 323, 338 (5th Cir. 2004), there were “‘extremely filthy’ [cells] with crusted
fecal matter, urine, dried ejaculate, peeling and chipping paint, and old food particles on
the walls.”
By contrast, in Davis, the Fifth Circuit found no constitutional violation when a
prisoner was locked in a “management cell” for three days, where the cell was,
“according to Davis, ‘just filthy, with ‘blood on the walls and excretion on the floors and
bread loaf on the floor.’” Davis, 157 F.3d at 1004, 1006. The appeals court quoted the
14

Supreme Court’s holding that “‘the length of confinement cannot be ignored. . . . A
filthy, overcrowded cell . . . might be tolerable for a few days and intolerably cruel for
weeks or months.’” Id. at 1006 (quoting Hutto v. Finney, 437 U.S. 678, 686-87 (1978)).
The Fifth Circuit found that “Davis did not suffer an extreme deprivation of any ‘minimal
civilized measure of life’s necessities’” when he was confined in the cell for only three
days. Id. (quoting Wilson v. Seiter, 501 U.S. 294, 304 (1991)).
When compared to the conditions described by the Fifth Circuit in the foregoing
cases, the much less objectively unsanitary conditions described by Severin do not rise
to the level of a constitutional violation. The conditions he experienced in OPP were
neither virtually permanent nor an extreme deprivation of the type that might offend the
Constitution, and he suffered no serious physical injuries or ailments as a result of any
allegedly unsanitary conditions.
Under these circumstances, plaintiff cannot state a cognizable Section 1983 claim
that defendants are responsible for constitutionally inadequate unsanitary conditions of
confinement. For all of the foregoing reasons, plaintiff’s complaints in this case about
unsanitary conditions of his confinement advance a legally frivolous argument and fail
to state a claim for relief under Section 1983.
III.

OUTDOORS RECREATION
Severin also alleges that he has not received sufficient outdoor exercise or

recreation during his four-month imprisonment in OPP. He complained that during his
15

four months of incarceration in the Tent 3 facility of OPP since his arrest, the only times
he had been outdoors was to clean the tents. He stated that he received no outside
recreational opportunities, though he acknowledged that some inmates exercised indoors
in the tents at night, while he chooses not to do so.
The Fifth Circuit “has held that deprivation of exercise may constitute an
impairment of health, which is actionable under the Eighth Amendment, and that the
absence of outdoor exercise opportunities may constitute an Eighth Amendment
violation.” Hewitt v. Henderson, 271 F. App’x 426, 428 (5th Cir. 2008) (citations
omitted) (emphasis added). “While neither the Fifth Circuit nor the United States
Supreme Court has ever specifically held that inmates enjoy an absolute right to
out-of-cell exercise, the Fifth Circuit has repeatedly held that an extended deprivation of
exercise opportunities might impinge upon an inmate’s Eighth Amendment rights
depending upon the particular facts of a given case.” Doolittle v. Holmes, No. 06-986-C,
2010 WL 22552, at *4 (M.D. La. Jan. 4, 2010) (citing Hewitt, 271 F. App’x at 428;
Green v. Ferrell, 801 F.2d 765 (5th Cir. 1986); McGruder v. Phelps, 609 F.2d 1023 (5th
Cir. 1979)) (emphasis in original).
However, it is clear that inmates have no protected liberty interest in specific
recreational opportunities and the “[d]eprivation of exercise is not a per se constitutional
violation.” Lewis v. Smith, 277 F.3d 1373, 2001 WL 1485821, at *1 (5th Cir. 2001)
(citing Stewart v. Winter, 669 F.2d 328, 336 n.19 (5th Cir. 1982); Miller v. Carson, 563
16

F.2d 741, 751 n.12 (5th Cir. 1977)); accord Sampson v. Corrs. Corp., No. 08-CV-0915,
2009 WL 837640, at *16 (W.D. La. Mar. 26, 2009) (citing Smith v. Boyd, 945 F.2d
1041, 1043 (8th Cir. 1991); Lato v. Attorney Gen., 773 F. Supp. 973, 978 (W.D. Tex.
1991) (citing Beck v. Lynaugh, 842 F.2d 757, 762 (5th Cir. 1988)). To succeed on a
claim under Section 1983 for lack of exercise, a prisoner must establish “the existence
of any health hazard under the specific circumstances involved.” Ruiz v. Estelle, 679
F.2d 1115, 1152 (5th Cir.), amended in part, vacated in part on other grounds, 688 F.2d
266 (5th Cir. 1982); accord Delaney v. DeTella, 256 F.3d 679, 684 (7th Cir. 2001);
Green v. Ferrell, 801 F.2d 765, 771 (5th Cir. 1986).
As to his wholly conclusory allegation that the lack of outdoor exercise caused
him to suffer various minor respiratory ailments, Severin’s testimony and medical
records do not support the conclusion that any of these conditions was serious or even
related to lack of outdoor recreation. Conditions of confinement may rise to the level of
a constitutional violation only if they result in “a serious or significant . . . injury
resulting from the challenged conditions.” Strickler v. Waters, 989 F.2d 1375, 1381 (4th
Cir.), cert. denied, 114 S. Ct. 393 (1993) (emphasis added); accord White v. Gregory, 1
F.3d 267, 269 (4th Cir. 1993), cert. denied, 114 S. Ct. 931 (1994).
Any harm that Severin may have suffered by the minor maladies he describes in
this case were not serious and did not rise to the level of a constitutional violation. See,
e.g., Wesson v. Oglesby, 910 F.2d 278, 284 (5th Cir. 1990) (swollen wrists with some
17

bleeding not serious); Griffin v. DeRobertis, 557 F. Supp. 302, 306 (N.D. Ill. 1983)
(aches and sore throat not serious); cf. Barker v. Brantley County, 832 F. Supp. 346, 352
(S.D. Ga. 1993), aff’d, 19 F.3d 37 (11th Cir. 1994) (pneumonia is serious medical need).
Certainly, plaintiff did not suffer “a life-long handicap or permanent loss” of the type
required to constitute a serious medical need for constitutional purposes. See Hill v.
Dekalb Reg’l Youth Detention Ctr., 40 F.3d 1176, 1188 (11th Cir. 1994), overruled in
part on other grounds by Hope v. Peltzer, 536 U.S. 730, 739 (2002) (citing Monmouth
County v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (medical need is serious when it
“results in an inmate’s suffering ‘a life-long handicap or permanent loss’”)); Dickson v.
Colman, 569 F.2d 1310, 1311 (5th Cir. 1978) (no serious medical need was demonstrated
when plaintiff’s high blood pressure presented no “true danger” or “serious threat” to his
health). Severin’s minor ailments do not rise to the level of health hazard resulting from
lack of outdoor exercise necessary to state a constitutional violation.
IV.

MEDICAL CARE
Severin was a pretrial detainee at all relevant times about which he complains. He

alleges that he received inadequate medical care for his “cold and flu-like symptoms” and
minor respiratory ailments.
Before the Fifth Circuit’s decision in Hare v. City of Corinth, 74 F.3d 633 (5th Cir.
1996), it appeared that prison officials must provide pretrial detainees with reasonable
medical care unless the failure to provide it was reasonably related to a legitimate
18

government interest. Bell v. Wolfish, 441 U.S. 520, 539 (1979); Cupit v. Jones, 835
F.2d 82, 85 (5th Cir. 1987); Mayweather v. Foti, 958 F.2d 91 (5th Cir. 1992). The
inquiry was “whether the denial of medical care . . . was objectively reasonable in light
of the Fourteenth Amendment’s guarantee of reasonable medical care and prohibition on
punishment of pretrial detainees.” Pfannstiel v. City of Marion, 918 F.2d 1178, 1186
(5th Cir. 1990), abrogated on other grounds as recognized in Martin v. Thomas, 973 F.2d
449, 455 (5th Cir. 1992).
In Hare, however, the Fifth Circuit held:
(1) that the State owes the same duty under the Due Process Clause and the
Eighth Amendment to provide both pretrial detainees and convicted
inmates with basic human needs, including medical care and protection
from harm, during their confinement; and (2) that a state jail official’s
liability for episodic acts or omissions cannot attach unless the official had
subjective knowledge of a substantial risk of serious harm to a pretrial
detainee but responded with deliberate indifference to that risk.
Hare, 74 F.3d at 650. The Fifth Circuit explained that for the Bell “reasonable
relationship” test to be applicable, the pretrial detainee must be able to show that a prison
official’s act either “implement[s] a rule or restriction or otherwise demonstrate[s] the
existence of an identifiable intended condition or practice” or that the “official’s acts or
omissions were sufficiently extended or pervasive, or otherwise typical of extended or
pervasive misconduct by other officials, to prove an intended condition or practice.” Id.
at 645. If the pretrial detainee is unable to prove either, the incident will be considered
to be an episodic act or omission, and the deliberate indifference standard enunciated in
19

Estelle v. Gamble, 429 U.S. 97, 104 (1976), will apply. Shepherd v. Dallas Cnty., 591
F.3d 445, 452 (5th Cir. 2009) (citing Bell, 441 U.S. at 539; Scott v. Moore, 114 F.3d 51,
53 (5th Cir. 1997); Hare, 74 F.3d at 649); Tamez v. Manthey, 589 F.3d 764, 769-70 (5th
Cir. 2009) (citing Scott, 114 F.3d at 53; Hare, 74 F.3d at 649).
In Estelle, the Supreme Court held that a convicted prisoner may succeed on a
claim for damages under 42 U.S.C. § 1983 for inadequate medical care only if he
demonstrates that there has been “deliberate indifference to serious medical needs” by
prison officials or other state actors. Only deliberate indifference, “an unnecessary and
wanton infliction of pain . . . or acts repugnant to the conscience of mankind,” constitutes
conduct proscribed by the Eighth Amendment. Estelle, 429 U.S. at 105-06; accord
Gregg v. Georgia, 428 U.S. 153, 182-83 (1976); Tamez, 589 F.3d at 770; Hare, 74 F.3d
at 650. “Deliberate indifference” means that a prison official is liable “only if he knows
that the inmates face a substantial risk of serious harm and [he] disregards that risk by
failing to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847
(1994). The Farmer definition applies to Eighth Amendment medical claims. Reeves,
27 F.3d at 176.
An inmate must satisfy two requirements to demonstrate that a prison official has
violated the Eighth Amendment. If the court finds that one of the components of the test
is not met, it need not address the other component. Davis, 157 F.3d at 1005. “First, the
deprivation alleged must be, objectively, ‘sufficiently serious’; a prison official’s act or
20

omission must result in the denial of the minimal civilized measure of life’s necessities.”
Farmer, 511 U.S. at 834 (quotation omitted). Thus, plaintiff must show that defendants
“exhibited deliberate indifference to his serious medical needs.” Cooper v. Johnson, 353
F. App’x 965, 967 (5th Cir. 2009) (citing Wilson v. Seiter, 501 U.S. 294, 297 (1991));
accord Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir. 1999); Mendoza v. Lynaugh, 989
F.2d 191, 193 (5th Cir. 1993).
Further, plaintiff must establish that defendant possessed a culpable state of mind.
Farmer, 511 U.S. at 838 (citing Wilson, 501 U.S. at 298). A prison official cannot be
held liable “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.”
Id. at 837; accord Tamez, 589 F.3d at 770 (citing Thompson v. Upshur County, 245 F.3d
447, 458-59 (5th Cir. 2001)). “Such a showing requires the inmate to allege that prison
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.’” Brewster v. Dretke, 587 F.3d 764, 770 (5th
Cir. 2009) (quoting Domino v. Tex. Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir.
2001)) (emphasis added).
The Supreme Court has recently reaffirmed that “‘deliberate indifference’
is a stringent standard of fault, requiring proof that a municipal actor
disregarded a known or obvious consequence of his action.” . . . The
“deliberate indifference” standard permits courts to separate omissions that
21

amount to an intentional choice from those that are merely unintentionally
negligent oversight[s].
Southard v. Tex. Bd. of Crim. Justice, 114 F.3d 539, 551 (5th Cir. 1997) (quoting Bd. of
Cnty. Comm’rs v. Brown, 520 U.S. 397, 410 (1997) (other quotations omitted))
(emphasis added); accord Tamez, 589 F.3d at 770. “‘Subjective recklessness,’” as used
in the criminal law, is the appropriate test for deliberate indifference.” Norton v.
Dimazana, 122 F.3d 286, 291 (5th Cir. 1997).
In the instant case, plaintiff’s pleadings, as expanded by his testimony, establish
that nothing more than episodic acts or omissions as defined in Hare are at issue. See
Tamez, 589 F.3d at 770 (defendants’ alleged refusal “to provide [prisoner] with
immediate medical treatment qualifies as an ‘episodic act or omission’”). Therefore, the
“deliberate indifference” standard applies and Severin must allege facts sufficient to
establish that defendants knew he faced a substantial risk of serious harm and disregarded
that risk by failing to take reasonable measures to abate it. In this case, plaintiff wholly
fails to allege facts sufficient to satisfy any of the essential elements of his claim,
including especially the stringent “deliberate indifference” standard.
Initially, it cannot be concluded that the conditions plaintiff described, consisting
of “cold and flu-like symptoms” and minor respiratory ailments presented serious
medical needs that posed a substantial risk of harm in his particular circumstances. His
testimony about fear of developing COPD was entirely speculative and lacked any
support in his medical history or OPP medical records. Thus, Severin did not suffer “a
22

life-long handicap or permanent loss” of the type required to constitute a serious medical
need for constitutional purposes. See Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176,
1188 (11th Cir. 1994) (citing Monmouth Cnty. v. Lanzaro, 834 F.2d 326, 347 (3d Cir.
1987) (“Where the delay [in medical care] results in an inmate’s suffering ‘a life-long
handicap or permanent loss, the medical need is serious.’”)); see also Fourte v. Faulkner
Cnty., 746 F.3d 384, 389 (8th Cir. 2014) (high blood pressure readings alone do not
indicate serious medical need); Dickson v. Colman, 569 F.2d 1310, 1311 (5th Cir. 1978)
(no serious medical need when plaintiff’s high blood pressure presented no “true danger”
or “serious threat” to his health). Severin acknowledged in his testimony, and the
medical records reflect, that he was regularly treated throughout his incarceration at OPP
with medication for his complaints, including sinus medication, Zyrtec and cetirizine
antihistamine.
Even assuming, however, though certainly without concluding that Severin’s
minor ailments presented a serious medical need for constitutional purposes, he has
alleged facts, confirmed by his testimony and the medical records, that negate any
inference of deliberate indifference by jail officials. His complaint, as amended by his
testimony and confirmed by the medical records, shows that he received constitutionally
adequate medical care while incarcerated at the jail. Severin testified and his medical
records confirm that he was seen by nurses and doctors at the jail and that medications
were prescribed and provided for his minor respiratory complaints.
23

This record cannot support an inference that defendants were deliberately
indifferent to plaintiff’s serious medical needs in the constitutional sense. See, e.g.,
LaBorde v. Lowe, 471 F. App’x 390, 391 (5th Cir. 2012) (no deliberate indifference to
serious medical needs when inmate “received extensive medical care and numerous
prescription medications” for his high blood pressure and any other condition for which
he requested treatment); Greer v. Tran, 124 F. App’x 261, 262 (5th Cir. 2005) (no
deliberate indifference to serious medical needs when inmate was tested for diabetes
mellitus, which was ruled out, although he ultimately died after falling into a diabetic
ketoacidotic coma); Raspberry v. Johnson, 281 F.3d 1279, 2001 WL 1692494, at *1 (5th
Cir. 2001) (citing Domino, 239 F.3d at 754) (Plaintiff with injured hand and bruises
failed to allege deliberate indifference to serious medical needs when he was examined
by medical personnel and injuries healed on their own.); Harris v. Donaldson, 71 F.3d
876, 1995 WL 725438, at *2 (5th Cir. Nov. 3, 1995) (no deliberate indifference when
prisoner received medical treatment for diabetes, including blood monitoring, medication
and other attention, rendering his Section 1983 medical care claim merely a “quarrel with
the quality and quantity of his medical treatment” for his chronic condition); Maldonado
v. Keesee, 12 F.3d 1098, 1993 WL 543329, at *1 (5th Cir. Dec. 15, 1993) (no deliberate
indifference when inmate admittedly was being treated by a doctor at the jail and
receiving medication for high blood pressure).

24

Although Severin has alleged some delay in receiving medical care in that he did
not receive the treatment he thought was necessary quickly enough, and he has expressed
dissatisfaction with the overall speed, quality and initial effectiveness of treatment, none
of his allegations rise to the level of deliberate indifference necessary to establish a
constitutional violation cognizable under Section 1983.
[T]he decision whether to provide additional treatment is a classic example
of a matter for medical judgment. A showing of deliberate indifference
requires the prisoner to submit evidence that prison 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. Deliberate indifference is an
extremely high standard to meet.
Gobert, 463 F.3d at 346 (footnotes, citations and internal quotations omitted). No such
showing has been made on the current record. In Severin’s case, the decisions of the
jail’s health care providers regarding how to treat his minor maladies are classic
examples of the exercise of “medical judgment,” which, even if incorrect, cannot serve
as the basis for a finding of deliberate indifference in the constitutional sense.
Mere delay in receiving care is not in and of itself a constitutional violation.
Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2006); Mendoza, 989 F.2d at 195; Wesson
v. Oglesby, 910 F.2d 278, 284 (5th Cir. 1990). Regardless of the length of delay,
plaintiff at a minimum must show deliberate indifference to serious medical needs.
Wilson, 501 U.S. at 298. No such showing can be made in this case in light of the

25

continuing and successful medical attention Severin received during his incarceration in
OPP.
Contentions like Severin’s that amount to a mere disagreement with the speed,
quality or extent of medical treatment or even negligence do not give rise to a Section
1983 claim. “[A]lthough inadequate medical treatment may, at a certain point, rise to the
level of a constitutional violation, malpractice or negligent care does not.” Stewart v.
Murphy, 174 F.3d 530, 534 (5th Cir. 1999) (citation omitted) (active treatment of
prisoner’s serious medical condition, which ultimately resulted in death, does not
constitute deliberate indifference, even if treatment was negligently administered); see
also LaBorde, 471 F. App’x at 391 (plaintiff “received extensive medical care and
numerous prescription medications; he has not shown any intentional delay or refusal to
provide him with medical treatment for his high blood pressure or any other medical
condition for which he requested treatment. At most, he has established a disagreement
with his treatment, unsuccessful treatment, or negligence, which does not amount to a
constitutional violation.”); Rowe v. Norris, 198 F. App’x 579, 581 (8th Cir. 2006) (no
constitutional violation when inmate disagreed with physician’s choice of medication);
Jenkins v. Lee, 84 F. App’x 469, 470 (5th Cir. 2004) (Plaintiff’s summary judgment
evidence and arguments “reflect nothing more than mere disagreement with the care
rendered by [the prison doctor], or, at best, malpractice, which are insufficient to
establish a constitutional violation,” when the doctor prescribed one medication and
26

refused plaintiff’s requests for a specific, alternate medication, after plaintiff complained
of discomfort, lightheadedness, dizzy spells and nausea, and suffered a blackout due to
high blood pressure.); Mendoza, 989 F.2d at 193 (prisoner’s disagreement with the type
or timing of medical services provided cannot support a Section 1983 claim); Wesson,
910 F.2d at 284 (allegations establishing provision of medical treatment are inconsistent
with inference of deliberate indifference); Williams v. Browning, No. V-03-157, 2006
WL 83433, at *1, *3 (S.D. Tex. Jan. 11, 2006) (inmate with diabetes, hypertension,
anxiety and chronic knee ailment who alleged that he was unable to obtain his
medications timely, but did not establish any substantial harm from the delay, failed to
state a claim for deliberate indifference).
Under these circumstances, Severin cannot state a cognizable Section 1983 claim
that defendants were deliberately indifferent to his serious medical needs. For all of the
foregoing reasons, plaintiff’s complaints in this case about his medical care advance a
legally frivolous argument and fail to state a claim for relief based upon violation of his
constitutional rights under Section 1983.
V.

ACCESS TO LEGAL MATERIALS
Finally, Severin testified that he has been unable to obtain copies of paperwork

needed for his court filings in this case, which sometimes causes him problems with
meeting court deadlines. He admitted that legal assistance personnel at the jail respond

27

to his requests, but he complained that it takes too long and that various filings required
by this court in the instant case had been delayed.
Prisoners have a First Amendment right of meaningful access to the courts.
Bounds v. Smith, 430 U.S. 817, 828 (1977); Dickinson v. TX, Fort Bend County, 325 F.
App’x 389, 390 (5th Cir. 2009); Sandoval v. Johns, 264 F.3d 1142, 2001 WL 822779,
at *1 (5th Cir. 2001); McDonald v. Steward, 132 F.3d 225, 230 (5th Cir. 1998); Degrate
v. Godwin, 84 F.3d 768, 768-69 (5th Cir. 1996). However, this constitutional right is not
without limitations. “While the precise contours of a prisoner’s right of access to the
courts remain somewhat obscure, the Supreme Court has not extended this right to
encompass more than the ability of an inmate to prepare and transmit a necessary legal
document to a court.” Vaccaro v. United States, 125 F.3d 852, 1997 WL 574977, at *1
(5th Cir. 1997) (quotation omitted) (emphasis added); accord Norton v. Dimazana, 122
F.3d 286, 290 (5th Cir. 1997); Eason v. Thaler, 73 F.3d 1322, 1328 (5th Cir. 1996).
Significantly, a prisoner’s First Amendment right in this regard is limited to the
presentation of a non-frivolous claim or argument to the court. Lewis v. Casey, 518 U.S.
343, 352-53 (1996).
In addition, to state a claim that his constitutional right of access to the courts was
violated, Severin must demonstrate that his position as a litigant was actually prejudiced.
Id. at 356; Cochran v. Baldwin, 196 F. App’x 256, 257-58 (5th Cir. 2006); Smith v.

28

Polunsky, 233 F.3d 575, 2000 WL 1468717, at *1 (5th Cir. 2000); Eason, 73 F.3d at
1328.
Severin wholly fails to establish the essential elements of a First Amendment
claim detailed above, either in his complaint or his testimony. His testimony and his
written submissions to this court in this case establish that he in fact had the ability to
prepare and transmit legal documents to the courts. In addition, no actual prejudice to
his position as a litigant in this case has occurred.
It is clear that no actual legal prejudice to Severin’s position as a litigant of the
type required by Lewis was caused by any action or omission of the defendants.
“[C]ausation is an element of a section 1983 claim; [defendants’] actions must have
actually caused the deprivation . . . of which [plaintiff] complains.” Hart v. O’Brien, 127
F.3d 424, 446 (5th Cir. 1997), abrogated in part on other grounds as recognized in Spivey
v. Robertson, 197 F.3d 772 (5th Cir. 1999); accord Brown v. Bryan County, 219 F.3d
450, 457 (5th Cir. 2000). In Lewis, the Supreme Court made clear that an inmate must
establish actual injury to state a claim for denial of his right of access to the courts.
Severin acknowledged in his testimony that, although various filings required by
this court in the instant case had been delayed, the court permitted him additional time
to make his submissions, which he ultimately succeeded in doing. The record reflects
that the only deadline missed in this court was as to a notice of deficiency issued by the
Clerk of Court in the instant case. Severin stated that he had experienced no problems
29

with any legal papers, other than in connection with the instant case in this court.
Certainly, he has demonstrated his ability to make written submissions to this court in
connection with this case. Severin has neither alleged nor shown any actual injury to his
position as a litigant in this matter.
For all of the foregoing reasons, Severin’s claims concerning the First Amendment
are legally frivolous and fail to state a claim upon which relief can be granted under
Section 1983. They must be dismissed.
VI.

SHERIFF / MONELL
Severin makes no claim that Sheriff Gusman was personally involved in any of

the alleged acts or omissions upon which his claims are based. “There is no respondeat
superior liability under section 1983.” Eason v. Thaler, 73 F.3d 1322, 1327 (5th Cir.
1996); accord Field v. Corr. Corp. of Am. Inc., 364 F. App’x 927, 929 (5th Cir. 2010);
Cox v. Irby, 281 F. App’x 390, 391 (5th Cir. 2008); Kohler v. Englade, 470 F.3d 1104,
1114-15 (5th Cir. 2006). Thus, this defendant cannot be held liable under Section 1983
pursuant to a theory of respondeat superior simply because the persons allegedly
responsible for plaintiff’s injury, if any, were in his employ or under his supervision.
Sanders v. English, 950 F.2d 1152, 1160 (5th Cir. 1992); Baskin v. Parker, 602 F.2d
1205, 1208 (5th Cir. 1979); Barksdale v. King, 699 F.2d 744, 746 (5th Cir. 1983). His
proposed amended complaint similarly seeks to assert liability against “Captain Russell

30

Rhodes who is warden over the tents [and] has the ultimate responsibility” for the
conditions in them. Record Doc. No. 19 at p. 12.
To hold either of these defendants liable, plaintiff must establish either that they
were “personally involved in the acts causing the deprivation of his constitutional rights
or that a causal connection exists between an act of [these defendants] . . . and the alleged
constitutional violation.” Douthit v. Jones, 641 F.2d 345, 346 (5th Cir. 1981); accord
Cox, 281 F. App’x at 391 ; Kohler, 470 F.3d at 1115. “It is facially evident that this test
cannot be met if there is no underlying constitutional violation.” Rios v. City of Del Rio,
444 F.3d 417, 425-26 (5th Cir. 2006) (citing Breaux v. City of Garland, 205 F.3d 150,
161 (5th Cir. 2000)). In the instant action, plaintiff has failed to establish either that
defendants were personally involved in any acts causing the deprivation of his
constitutional rights or that a causal connection exists between an act of defendants and
the alleged constitutional violation.
A supervisory official may be held liable for his subordinates’ actions only if the
official implemented an unconstitutional policy that causally resulted in plaintiff’s injury.
Monell v. Dep’t of Social Servs., 436 U.S. 658, 691-95 (1978); Thompson v. Johnson,
348 F. App’x 919, 921 (5th Cir. 2009) (citing Mouille v. City of Live Oak, 977 F.2d 924,
929 (5th Cir. 1992)); Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d
404, 435 (5th Cir. 2008). Without alleging a particular custom, usage or policy for which
defendants Sheriff Gusman or Captain Rhodes can be held constitutionally liable,
31

plaintiff fails to state a claim for relief under Section 1983. Monell, 436 U.S. at 691-95;
Thompson, 348 F. App’x at 921-22; Mouille, 977 F.2d at 929. No such unconstitutional
custom, usage or policy has been alleged in this case.
“To hold a supervisory official liable for the acts of a subordinate, Severin must
show that “(1) the supervisor either failed to supervise or train the subordinate official;
(2) a causal link exists between the failure to train or supervise and the violation of the
plaintiff’s rights; and (3) the failure to train or supervise amounts to deliberate
indifference.” Smith v. Brenoettsy, 158 F.3d 908, 911-12 (5th Cir. 1998). To state a
failure to protect claim under § 1983, Severin must show that he is incarcerated under
conditions posing a substantial risk of serious harm and that prison officials were
deliberately indifferent to his need for protection. Neals v. Norwood, 59 F.3d 530, 533
(5th Cir. 1995). For an official to act with deliberate indifference for purposes of either
claim, he “‘must both be aware of facts from which the inference could be drawn that
substantial risk of serious harm exists, and he must also draw the inference.’” Payne v.
Pickett, 246 F. App’x 884, 889-90 (5th Cir. 2007) (quoting Farmer v. Brennan, 511 U.S.
825, 837 (1994)).
In this case, neither Severin’s numerous written submissions nor his testimony
make any of the allegations necessary to establish a Monell claim or any personal
involvement of the Sheriff. Accordingly, his allegations against the Sheriff fail to state
a cognizable Section 1983 cause of action.
32

VII.

ORDER AND REASONS ON MOTION TO AMEND
Severin seeks to amend his complaint in this matter for the purpose of expanding

upon his previously asserted claims. The policy of the Federal Rules of Civil Procedure
is liberal in favor of permitting amendment of pleadings, and Rule 15(a) evinces a bias
in favor of granting leave to amend. Unless there is a substantial reason to deny leave
to amend, the discretion of the district court is not broad enough to permit denial.
Stripling v. Jordan Prod. Co., 234 F.3d 863, 872 (5th Cir. 2000) (citing Foman v. Davis,
371 U.S. 178, 182 (1962); Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir.
1994); Martin’s Herend Imports, Inc. v. Diamond & Gem Trading U.S. Am. Co., 195
F.3d 765, 770 (5th Cir. 1999); Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597-98
(5th Cir. 1981)). Thus, “[t]he court should freely give leave when justice so requires,”
Fed. R. Civ. P. 15(a)(2), but such leave “is by no means automatic.” Wimm v. Jack
Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993) (quotation omitted). Relevant factors to
consider include “undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue prejudice
to the opposing party, and futility of amendment.” Id.
Futility in this context means “that the amended complaint would fail to state a
claim upon which relief could be granted. . . . [Thus,] to determine futility, we will apply
the same standard of legal sufficiency as applies under Rule 12(b)(6).” Stripling, 234
F.3d at 873 (quotations and citations omitted); accord Fenghui Fan v. Brewer, 377 F.
33

App’x 366, 367 (5th Cir. 2010). “To survive a Rule 12(b)(6) motion to dismiss, the
plaintiff must plead ‘enough facts to state a claim to relief that is plausible on its face.’
‘Factual allegations must be enough to raise a right to relief above the speculative level,
on the assumption that all the allegations in the complaint are true (even if doubtful in
fact).’” In Re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)) (footnote omitted).
Severin’s motion to amend is DENIED. For all of the reasons discussed above,
Severin cannot state a cognizable Section 1983 claim concerning any claim asserted in
this case, and his amendment is futile. The proposed amendment, including allegations
of “neglect infliction of emotional distress,” and the provision by OPP medical personnel
of additional medication, including “albuterol sulfate inhalation aerosol” for his
“cold/flu-like symptoms,” further demonstrate that his individual complaints fail to rise
to the level of violation of his constitutional rights. Record Doc. No. 19 at pp. 5, 9-10.
Severin’s proposed amended complaint refers to a consent decree issued as to OPP
on an institutional basis in another section of this court. The existence of that consent
decree is of no moment insofar as the individual alleged constitutional violations asserted
by Severin are concerned. For all of the reasons set out above, none of the allegations
Severin has made as to his particular circumstances rise to the level of violations of his
individual constitutional rights sufficient to state a Section 1983 claim as to him
personally. Thus, his motion to amend is futile and must be denied on that ground.
34

RECOMMENDATION
For all of the foregoing reasons, it is RECOMMENDED that plaintiff’s complaint
be DISMISSED WITH PREJUDICE as legally frivolous and/or for failure to state a
claim under 28 U.S.C. § 1915(e)(2) and 42 U.S.C. § 1997e(c)(1).
A party’s failure to file written objections to the proposed findings, conclusions,
and recommendation in a magistrate judge’s report and recommendation within fourteen
(14) days after being served with a copy shall bar that party, except upon grounds of
plain error, from attacking on appeal the unobjected-to proposed factual findings and
legal conclusions accepted by the district court, provided that the party has been served
with notice that such consequences will result from a failure to object. Douglass v.
United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc) (citing 28
U.S.C. § 636(b)(1)).2

15th
New Orleans, Louisiana, this ________ day of October, 2015.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE

2

Douglass referenced the previously applicable ten-day period for the filing of objections. Effective
December 1, 2009, 28 U.S.C. § 636(b)(1) was amended to extend the period to fourteen days.

35