Russell v. Orleans Parish Prison et al

Filing 23

ORDER AND REASONS - Plaintiffs complaint against the Sheriff is dismissed with prejudice pursuant to 28 U.S.C. §1915(e)(2)(B)(i) and (ii). Judgment will be entered accordingly. Signed by Magistrate Judge Michael North.(bwn)

HOLLIS RUSSELL
VERSUS

ORLEANS PARISH PRISON
SHERIFF MARLIN GUSMAN

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

CIVIL ACTION

NUMBER: 15-0916
SECTION: "C"(5)

ORDER AND REASONS

Presently before the Court for statutory screening under 28 U.S.C. §1915A, in this

case which comes before the undersigned upon the consent of the parties pursuant to 28

U.S.C. §636(c) (rec. doc. 19), is the above-captioned 42 U.S.C. §1983 complaint of pro se
Plaintiff, Hollis Russell, against Defendant, Orleans Parish Sheriff Marlin N. Gusman. (Rec.
doc. 7). 1/

Plaintiff is an inmate of the Allen Correctional Center in Kinder, Louisiana, who was

housed at the Orleans Parish Prison (“OPP”) at the time that suit was filed. (Rec. doc. 7, p.
2). As his statement of claim herein, Plaintiff alleges as follows:

Orleans Parish Prison Sheriff Marlin N. Gusman refuses to have
the jail cleaned of mole (sic) and dust. The prisoners make
loud noise all through the day and night making it impossible
to sleep. There is no control in the jail.
(Rec. doc. 7, p. 4).

Notwithstanding the manner in which Plaintiff captioned his complaint, a review of page four thereof,
where he was directed to provide identifying information for every individual he has named as a Defendant in
this lawsuit, reveals that there is but one Defendant in this matter, namely, Sheriff Gusman. (Rec. doc. 7, p. 4).
Even if Plaintiff had intended to name the Orleans Parish Prison as an additional Defendant, that facility is a
building, not a person or an entity that is capable of being sued under 42 U.S.C. §1983. Wetzel v. St. Tammany
Parish Jail, 610 F.Supp. 2d 545, 548-49 (E.D. La. 2009).
1/

In his prayer for relief, Plaintiff seeks injunctive relief ordering the Sheriff to shut

down parts of the jail and to clean them of mold and dust; to enhance security to supervise

prisoners’ behavior and noise; and, to be awarded unspecified compensation for pain and
suffering. (Rec. doc. 7, p. 5).

Plaintiff has instituted this suit IFP pursuant to 28 U.S.C. §1915. (Rec. doc. 9). A

proceeding brought IFP may be dismissed as frivolous under §1915(e)(2)(B)(i) if the claim
alleged therein has no arguable basis in law or fact, Booker v. Koonce, 2 F.3d 114 (5th Cir.
1993), or if it fails to state a claim upon which relief can be granted.

28 U.S.C.

§1915(e)(2)(B)(ii); see also 28 U.S.C. §1915A(b), 42 U.S.C. §1997e(c). Giving the instant

complaint a liberal reading, the Court nonetheless finds that this matter should be
dismissed as frivolous and for failing to state a claim upon which relief can be granted.

Plaintiff gives no indication in his complaint of the capacity in which the named

Defendant is being sued. “When a pro se plaintiff does not specify in his complaint whether
a defendant is named in his or her official or individual capacity, it is generally presumed

by operation of law that the defendant is named in his or her official capacity.” Douglas v.

Gusman, 567 F.Supp. 2d 877, 888-89 (E.D. La. 2008). “‘In a suit brought against a municipal

official in his [or her] official capacity, the plaintiff must show that the municipality has a
policy or custom that caused his injury.’” Carter v. Strain, No. 09-CV-0015, 2009 WL

3231826 at *2 (E.D. La. Oct. 1, 2009)(quoting Parm v. Shumate, 513 F.3d 135, 142 (5th Cir.

2007), cert. denied, 555 U.S. 813, 129 S.Ct. 42 (2008)). “‘A plaintiff may not infer a policy
merely because harm resulted from some interaction with a governmental entity.’” Id.
(quoting Colle v. Brazos County, Texas, 982 F.2d 237, 245 (5th Cir. 1993)). Rather, the

plaintiff “. . . must identify the policy or custom which allegedly caused the deprivation of
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his constitutional rights.” Id. (citing Murray v. Town of Mansura, 76 Fed.Appx. 547, 549 (5th

Cir. 2003) and Treece v. Louisiana, 74 Fed.Appx. 315, 316 (5th Cir. 2003)).

Measured against the foregoing standards, Plaintiff’s allegations against the named

Defendant in his official capacity fail to state a claim upon which relief can be granted, as he
does not allege that the purported deprivation resulted from a policy or custom, much less

identify any such policy or custom. Carter, 2009 WL 3231826 at *2. Viewing Plaintiff’s
allegations as being made against the named Defendant in his individual capacity he fares

no better because “[p]laintiffs 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.” Id. at *1 (quoting Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002)).

This is so because “’[p]ersonal involvement is an essential element of a civil rights cause of
action.’” Id. (quoting Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983)). Supervisory
officials like the Sheriff “. . . cannot be held liable for federal civil rights violations allegedly

committed by his associates based merely on a theory of strict liability or vicarious

liability.” Id. (footnotes omitted). Respondeat superior is not a concept that is applicable to
proceedings brought under §1983. Harvey v. Andrist, 754 F.2d 569, 572 (5th Cir.), cert.

denied, 471 U.S. 1126, 105 S.Ct. 2659 (1985); Lozano v. Smith, 719 F.2d 756, 768, (5th Cir.
1983); Douthit v. Jones, 641 F.2d 345, 346 (5th Cir. 1981).

Other than identifying the Sheriff as the Defendant in the caption of and again on

page four of his complaint, Plaintiff’s principal pleading contains no allegations whatsoever
regarding the Sheriff’s involvement in the matters of which he complains herein. Although
Plaintiff attaches to his complaint two inmate grievance forms that he purportedly
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completed during his stay at OPP, neither of those forms was specifically directed to or
responded to by the Sheriff himself. (Rec. doc. 7, pp. 7-9). In one of those grievances that

Plaintiff completed on February 2, 2015, assigned No. 744612, he complained of the
presence of dust and mold and excessive noise in the areas of OPP in which he was housed.

(Id. at p. 8). That grievance was responded to by OPP correctional official K. Winfield on
the same date who advised Plaintiff that “THE TIER IS GIVEN CLEANING SUPPLIES.” (Id. at

p. 7). Subsequent to his transfer from OPP, Plaintiff expressed his dissatisfaction with the

OPP official’s response, writing at the bottom of the grievance form that “soap and water is
not enough to remove dust and mold [in the] building …” (Id.). While Plaintiff may be

displeased with the adequacy of the cleaning supplies that he was provided, the prompt
response and supplies that he was furnished belie any credible claim of deliberate

indifference on the part of OPP officials and prisoners are simply not entitled to cleaning

supplies of their choosing. Russell v. Pittman, No. 14-CV-2204, 2015 WL 4478054 at *3
(E.D. La. July 22, 2015)(and cases cited therein).

In his recent response to the Court’s Briefing Order, Plaintiff indicates that during

his three-month stay at OPP from April 27, 2015 to July 29, 2015, he was subjected to

unsafe amounts of black mold and humid conditions due, in part, to inadequate shower
exhaust systems; that he was also subject to an unsafe and excessive amount of dust

particles in the air due to an inadequate air filtration system; that he notified medical staff

about his pre-existing asthmatic condition at the time of his initial processing into OPP;

and, that after he developed “severe breathing problems,” he applied for but was denied
medical care before being transferred from OPP. (Rec. doc. 14, pp. 1-2). Plaintiff charges
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the Sheriff with an inability to control the “noise and violence” at OPP despite “… know[ing]
about these obvious unsafe and harmful conditions …” (Id. at p. 2).

The additional allegations made by Plaintiff in his response to the Briefing Order fall

short of establishing personal involvement on the part of the Sheriff sufficient to hold him
liable in his individual capacity because nowhere does Plaintiff set forth particular facts

establishing the Sheriff’s participation in or even awareness of the matters of which
Plaintiff complains. The Court also notes that in responding to the Court’s Briefing Order,

the Sheriff is not specifically identified by Plaintiff as an individual who possesses

knowledge of the complained-of conditions. (Rec. doc. 14, pp. 2-3). Essentially, Plaintiff

seeks to hold the Sheriff liable under the concept of respondeat superior which, as noted
above, is not applicable to §1983 proceedings. Harvey, 754 F.2d at 572; Carter, 2009 WL

3231826 at *1-2.

Moreover, “… 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.’” Russell, 2015 WL 4478054 at *2 (quoting McAllister v. Strain, No.

09-CV-2823, 2009 WL 5178316 at *3 (E.D. La. Dec. 23, 2009)). That being the case, the
mere presence of rust, mold, or other similar conditions, while possibly unpleasant and

uncomfortable, does not establish a constitutional violation. Id.; Billizone v. Jefferson Parish
Corr. Center, No. 14-CV-1263, 2015 WL 1897683 at *3-4 (E.D. La. Apr. 27, 2015). With

respect to Plaintiff’s complaints regarding excessive noise at OPP, nowhere does he allege

that prison officials arranged for such an inconvenience for the specific purpose of
depriving him of sleep. Ross v. United States, No. 13-CV-0573, 2013 WL 5290498 at *2 (N.D.

Tex. Sept. 18, 2013)(citing Johnson v. Texas Bd. of Criminal Justice, 281 Fed.Appx. 319, 3215

22 (5th Cir. 2008). Plaintiff’s allegations of inadequate ventilation are too conclusory to

entitle him to relief, Rue v. Gusman, No. 09-CV-6480, 2010 WL 1930936 at *5 (E.D. La. May

11, 2010)(and cases cited therein), and the presence of overly-humid or “dank” air fails to
rise to the level of a constitutional violation. Russell, 2015 WL 4478054 at *3. Plaintiff also

fails to allege that he suffered substantial harm as a result of any delay in the provision of
medical care. Richard v. Martin, 390 Fed.Appx. 323, 325 (5th Cir. 2010)(citing Mendoza v.

Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993)). And Plaintiff’s passing reference to allegedly
uncontrolled violence at OPP is likewise unavailing because he does not contend that he

was placed in harm’s way or was particularly susceptible to being attacked, or that OPP

officials had been made aware of and were deliberately indifferent to his need for
protection. Rue, 2010 WL 1930936 at *5-6.

Finally, the two species of relief sought by Plaintiff are not available here. Because

Plaintiff is no longer housed at OPP, his request for injunctive relief with respect to the
conditions of confinement at that facility is now moot. Burge v. Dunn, 68 F.3d 465 (5th Cir.

1995)(citing Rocky v. King, 900 F.2d 864, 867 (5th Cir. 1990)). The other form of relief

sought by Plaintiff, unspecified compensatory damages, is unavailable here as 42 U.S.C.
§1997e(e) bars recovery of monetary relief for mental or emotional damages without a
prior showing of physical injury. Richard v. Cupp, No. 08-CV-1544, 2009 WL 840218 at *6
(W.D. La. Mar. 25, 2009).

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For all these reasons, Plaintiff’s complaint against the Sheriff is dismissed with

prejudice pursuant to 28 U.S.C. §1915(e)(2)(B)(i) and (ii). Judgment will be entered
accordingly.

New Orleans, Louisiana, this

9th day of

October

, 2015.

MICHAEL B. NORTH
UNITED STATES MAGISTRATE JUDGE

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