Sargent v. Larpenter et al

Filing 27

ORDER AND REASONS - Plaintiff's suit is dismissed with prejudice under §1915(e) 2)(B)(i) and (ii). Judgment will be entered accordingly. Signed by Magistrate Judge Michael North.(bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JAMES MAXWELL SARGENT

CIVIL ACTION

VERSUS

NUMBER: 16-08734

JERRY J. LARPENTER, ET AL.

SECTION: “A”(5)
ORDER AND REASONS

Presently before the Court is the above-captioned 42 U.S.C. §1983 complaint, as

supplemented, of pro se Plaintiff, James Maxwell Sargent, against Defendants, Jerry J.
Larpenter, Sheriff of Terrebonne Parish; Claude Triche, Warden of the Terrebonne Parish

Criminal Justice Complex (“TPCJC”); and Karen Becnel (“Becnel”), whom Plaintiff identifies

as the Inmate Account Manager of TPCJC. 1 Plaintiff was previously granted leave to file this
matter in forma pauperis under 28 U.S.C. §1915. (Rec. doc. 3).

At the time that he drafted his complaint and throughout the first several months that

this matter has been pending, Plaintiff was an inmate of TPCJC in Houma, Louisiana. In his
original complaint, Plaintiff complained of various conditions of confinement that allegedly
existed at that correctional facility, to wit: 1) being housed in a cell with no mattress or
bedding for three days and being provided only a damaged mattress for the 12 days

thereafter; 2) overcrowding; 3) an insufficient number of functioning toilets and sinks that
provide hot water; 4) a lack of clean, filtered, cool, fresh drinking water; 5) being served
insufficient portions of food which are often cold; and 6) the failure of Becnel to respond to
This case is before the undersigned upon the consent of the parties pursuant to 28 U.S.C. §636(c) (rec. doc.
23).

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Plaintiff’s request for a certified copy of his inmate account statement. (Rec. doc. 1). Plaintiff
requested compensatory and punitive damages as well as injunctive relief. (Id.).

After the Defendants were served with Plaintiff’s complaint but prior to their making

an appearance herein, Plaintiff submitted for filing a pleading denominated “Supplemental
Complaint Under Extraordinary Circumstances.” (Rec. doc. 7). In that pleading, Plaintiff first

recalled having previously filed his original complaint, which he thereby sought to

supplement with “several additional complaints” related to the conditions of confinement
allegedly existing at TPCJC. (Id.). Plaintiff then went on to present allegations regarding: 1)

an incident in which his legal mail was screened by jail officials; 2) overcrowding; 3) a lack
of clean, filtered, cool, fresh drinking water; and 4) the alleged overpricing of items available

for purchase through the TPCJC commissary. (Id.). The prayer for relief set forth in Plaintiff’s

supplemental and amended pleading requests only injunctive relief. (Id.). On July 20, 2016,

the Court issued an order directing that the Clerk of Court issue summons as to Plaintiff’s
supplemental and amended pleading and forward same to the Marshal to be served. (Rec.

doc. 8).

The Defendants have since filed answers to both Plaintiff’s original and

supplemental and amended complaints. (Rec. docs. 10, 19).

More recently, on December 8, 2016, Plaintiff contacted the undersigned’s chambers

via telephone to advise that he had recently been released from custody. (Rec. doc. 24).
Plaintiff was thus instructed to promptly file a notice of change of address in the record of
this proceeding as required by Local Rule 11.1 and by order dated December 13, 2016, he

was formally ordered to do so by December 30, 2016. (Id.). On December 29, 2016 at 2:08

p.m., Plaintiff caused to be transmitted to the undersigned’s chambers e-mail address an email that contained a post office box mailing address in Houma. At the Court’s direction, the
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record has since been updated with Plaintiff’s post office box mailing address. Despite
having been provided with a “Notice of Change of Address” form by the Clerk’s Office
instructions to complete and return said form to the Court (“Court only” entry foll. rec. doc.

26), Plaintiff has not done so.

As noted above, Plaintiff has instituted this suit in forma pauperis pursuant to 28 U.S.C.

§1915. A proceeding brought in forma pauperis may be dismissed as frivolous under

§1915(e)(2)(B)(i) if the claims alleged therein lack an 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. For the reasons that follow, the Court finds that this matter should be dismissed as
frivolous and for failing to state a claim upon which relief can be granted.

“It is well-settled in the Fifth Circuit that an amended complaint supersedes … [an]

original complaint, and the original complaint has no legal effect, except to the extent that it
is incorporated by reference into the amended complaint.”

Freilich v. Green Energy

Resources, Inc., 297 F.R.D. 277, 282-83 (W.D. Tex. 2014)(citing Eason v. Holt, 73 F.3d 600, 603

(5th Cir. 1996)(noting that Fifth Circuit jurisprudence consistently holds that an amended

complaint supersedes an original complaint)). “An amended complaint supersedes the

original complaint and renders it of no legal effect unless the amended complaint specifically
refers to and adopts or incorporates by reference the earlier pleading.” King v. Dogan, 31
F.3d 344, 346 (5th Cir. 1994)(emphasis added; citation omitted).

In the instant matter, although Plaintiff’s supplemental complaint refers to his

original complaint (rec. doc. 7, p. 1), the subsequent pleading does not specifically adopt or
incorporate by reference the allegations set forth in the earlier pleading. Applying the Fifth
Circuit rule described above, Plaintiff’s supplemental complaint supersedes his original
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complaint and renders the original pleading of no legal effect. As noted earlier, in his

supplemental complaint, Plaintiff requested only injunctive relief with respect to the

conditions that allegedly existed at TPCJC. Because Plaintiff is no longer housed at TPCJC, 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)(table)(citing Rocky v. King, 900 F.2d

864, 867 (5th Cir. 1990)). That being the case, dismissal under §1915(e)(2)(B)(i) and (ii) is

warranted on this basis alone. Gray v. Gusman, No. 15-CV-5531, 2015 WL 9875868 at *3
(E.D. La. Dec. 4, 2015), adopted, 2016 WL 231093 (E.D. La. Jan. 19, 2016).

Even if Plaintiff’s supplemental complaint did not trump his original complaint, he

would fare no better for the following reasons. The Constitution does not require that

inmates be housed in comfortable prisons, only that they be afforded humane conditions of

confinement and reasonably adequate food, shelter, clothing, and medical care. Herman v.
Holiday, 238 F.3d 660, 664 (5th Cir. 2001)(citing Farmer v. Brennan, 511 U.S. 825, 114 S.Ct.

1970 (1994)). In order to establish a constitutional violation as a result of inadequate
conditions of confinement, 2/ an inmate must demonstrate, first, that he was deprived of the

minimal civilized measure of life’s necessities or some basic human need and, second, that

prison officials acted out of deliberate indifference to the inmate’s health or safety. Id; see

also Taylor v. Woods, 211 Fed.Appx. 240, 241 (5th Cir. 2006); Pittman v. Allison, No. 08-CV-

0328, 2010 WL 2736961 at *3 (S.D. Miss. July 9, 2010).

“Deliberate indifference is

established by showing that the defendant officials ‘(1) were aware of facts from which an

2/ Regardless whether Plaintiff was a pre-trial detainee or a convicted prisoner at the time of the occurrences
of which he complains herein, the standard of liability is the same for episodic acts or omissions of jail officials
of the type alleged in this case. Olabisimotosho v. City of Houston, 185 F.3d 521, 526 (5th Cir. 1999); Hamilton v.
Lyons, 74 F.3d 99, 104 n. 3 (5th Cir. 1996); Hare v. City of Corinth, 74 F.3d 633, 650 (5th Cir. 1996).

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inference of excessive risk to the prisoner’s health or safety could be drawn and (2) that they
actually drew an inference that such potential for harm existed.’” Herman, 238 F.3d at 664

(quoting Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998)). “‘Deliberate indifference’

is a stringent standard of fault, one which requires proof that a municipal actor disregarded
a known or obvious consequence of his action.” Ford v. Gusman, No. 11-CV-2950, 2012 WL

2567063 at *8 (E.D. La. May 11, 2012), adopted, 2012 WL 2567034 (E.D. La. July 2,

2012)(citing Board of the County Commissioners of Bryan County, Oklahoma v. Brown, 520
U.S. 397, 410, 117 S.Ct. 1382, 1391 (1997)). It has been equated with a “subjective

recklessness” as that term is used in criminal law. Norton v. Dimazana, 122 F.3d 286 291 (5th
Cir. 1997).

The allegations made by Plaintiff fall far short of establishing the objective and

subjective components of deliberate indifference that are needed to prevail on a conditions-

of-confinement claim. From an objective standpoint, “[a]dmittedly, there is a point beyond
which a prison’s conditions are so unsatisfactory as to render them unconstitutional.”
Hawkins v. Gusman, No. 10-CV-1178, 2011 WL 1527218 at *3 (E.D. La. Apr. 1, 2011), adopted,
2011 WL 1527021 (E.D. La. Apr. 20, 2011)(citing Gates v. Cook, 376 F.3d 323, 338 (5th Cir.

2004)(confinement in “’extremely filthy’ [cells] with crusted fecal matter, urine, dried

ejaculate, peeling and chipping paint, and old food particles on the walls” was

unconstitutional)). The conditions alleged by Plaintiff, while less than optimal, do not rise to
that level. Wilson v. Lynaugh, 878 F.2d 846, 849 n. 5 (5th Cir. 1989); see also Marshall v.
Allison, No. 08-CV-1387, 2011 WL 601178 at *4 (S.D. Miss. Feb. 11, 2011)(quoting Herman,

238 F.3d at 664)(drinking water that appeared to be unclean, lack of cleaning supplies on
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weekends, mold on walls and in showers, dusty air vents, and inadequate personal hygiene
items do not result in denial of “minimal civilized measure of life’s necessities”).

Turning to the specific allegations presented by Plaintiff, his complaint about the brief

lack of adequate bedding materials, while certainly unpleasant and uncomfortable, fails to
rise to the level of a constitutional violation. Desroche v. Strain, 507 F.Supp.2d 571, 580 (E.D.

La. 2007)(Feldman, J.), appeal dis’d, 291 Fed.Appx. 569 (5th Cir. 2008)(citing Seltzer-Bey v.

Delo, 66 F.3d 961, 964 (8th Cir. 1995)(placement in strip cell without clothes, running water,
mattress, or blanket for two days was not unconstitutional where there was no evidence that

inmate suffered any injury or adverse health consequences or that jail officials knew of and

disregarded an excessive risk to his health and safety) and Williams v. Delo, 49 F.3d 442, 445

(8th Cir. 1995)(placement in strip cell without clothes, running water, mattress, pillow, or
blanket for four days, where plaintiff sought no treatment for any resulting medical condition
or injury, was not unconstitutional)).

With respect to Plaintiff’s other allegations, “the mere fact that prisoners are confined

in overcrowded conditions does not in and of itself amount to a constitutional deprivation. .
. ‘[A]lthough overcrowding may give rise to unconstitutional conditions, overcrowding itself

is not per se unconstitutional.’” Morrison v. Gusman, No. 10-CV-0217, 2010 WL 724173 at *7
(E.D. La. Feb. 22, 2010)(quoting Castillo v. Cameron County, 238 F.3d 339, 354 (5th Cir. 2001)).

As for Plaintiff’s allegations regarding the food served at TPCJC, the law is clear that a prison

must provide “… its prisoners with reasonably adequate food … to satisfy constitutional
requirements.” Green v. McKaskle, 788 F.2d 1116, 1126 (5th Cir. 1986). A prison diet is

reasonably adequate when it contains sufficient nutritional health to preserve health. Green
v. Ferrell, 801 F.2d 765, 770 (5th Cir. 1986). In Green, for example, the court held that two
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meals per day for each prisoner was sufficient even though experts had recommended three
separate meals per day. Id. at 770-71.

Plaintiff does not allege that the prison diet that he was served at TPCJC lacked

sufficient nutritional value or that he suffered any medical problems as a result of being
furnished an insufficient amount of food. In any event, a failure to provide a prisoner with
one or even several meals presents no constitutional violation. Hill v. Gusman, No. 06-CV-

0527, 2006 WL 3760454 at *4 (E.D. La. Dec. 18, 2016)(and cases cited therein). Otherwise,

to the extent that Plaintiff complains of the food service practices at TPCJC, although jail food

must be prepared under conditions that do not present an immediate danger to the health
and well-being of the inmates who consume it, inmates cannot expect the amenities,
conveniences, and services of a good hotel. Billizone v. Jefferson Parish Correctional Center,

No. 14-CV-1263, 2015 WL 1897683 at *5 (E.D. La. Apr. 27, 2015)(quotations and citations
omitted). “[W]ithout an allegation of resulting harm, complaints regarding food service
practices simply are not of constitutional dimension.” Gabriel v. Gusman, No. 10-CV-1688,

2010 WL 3169840 at *6 (E.D. La. July 16, 2010), adopted, 2010 WL 3175045 (E.D. La. Aug.

10, 2010); accord Billizone, 2015 WL 1897683 at *5; Billizone v. Jefferson Parish Correctional
Center, No. 14-CV-2594, 2015 WL 966149 at *8 (E.D. La. Mar. 4, 2015); Hawkins v. Gusman,

No. 10-CV-1178, 2011 WL 1527218 at *4 (E.D. La. Apr. 1, 2011), adopted, 2011 WL 1527021

(E.D. La. Apr. 20, 2011); Spurlock v. Gusman, No. 10-CV-0991, 2010 WL 2102829 at *7 (E.D.

La. May 5, 2010), adopted, 2010 WL 2102825 (E.D. La. May 25, 2010). By way of example,

the fact that inmates must eat in the vicinity of toilet facilities, while unpleasant, is not
unconstitutional. Gabriel, 2010 WL 3169840 at *6 (and cases cited therein).
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The final claim raised by Plaintiff in his original complaint is that on May 19, 2016, in

connection with his application to proceed in forma pauperis in this matter, he submitted a

request for a certified statement of his inmate bank account to Becnel, the staff person in
charge of such matters.

Plaintiff accuses Becnel of being “… a totally unsocial,

unapproachable person who is known to use profanity and rudeness and refuses to speak to

or address inmates in any way.” (Rec. doc. 1, p. 8). Despite the fact that Plaintiff’s pauper

application in this case bears an inmate account certification from Sergeant Becnel dated

May 20, 2015 (rec. doc. 2, p. 3), a mere one day after Plaintiff states that it was submitted to

her, he goes on to allege in his complaint, which he signed under penalty of perjury on May
25, 2016 along with his pauper request, that his “… request for a certified account statement
remains unanswered … [and that] … Becnel should be held responsible for this failure.” (Rec.
doc. 1, p. 8). Given those operative dates, Plaintiff’s allegations regarding Becnel’s purported

unresponsiveness are refuted by the record itself. The law is also clear that verbal abuse or
threatening language of a correctional officer, do not, even if true, amount to constitutional
violations. Harvey v. Stalder, 130 Fed.Appx. 654 (5th Cir. 2005); Wilson v. Budner, 976 F.2d

957, 958 (5th Cir. 1992).

Plaintiff concludes his original complaint by charging Sheriff Larpenter and Warden

Triche, by virtue of their supervisory positions, with being “… responsible for any and all
violations that are adjudicated and accrued … as a result of []his petition.” (Id. at pp. 8-9).

Such supervisory officials, however, “… cannot be held liable for federal civil rights violations
allegedly committed by … [their] associates based merely on a theory of strict or vicarious

liability.” Carter v. Strain, No. 09-CV-0015, 2009 WL 3231826 at *1 (E.D. La. Oct. 1, 2009).
This is so because personal involvement is an essential element of a civil rights cause of
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action, Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983), and 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).

Finally, by way of his supplemental complaint, Plaintiff raised two additional claims

that had not been included in his original complaint. First, Plaintiff alleges that on July 1,

2016, legal mail that was sent to him at TPCJC was “returned to sender” as containing
inappropriate “Internet/Website material.” (Rec. doc. 7, p. 2). As Plaintiff does not allege

that his position as a litigant was prejudiced in any way, he has no §1983 cause of action.
Whiting v. Kelly, 255 Fed.Appx. 896, 898-99 (5th Cir. 2007); Walker v. Navarro, 4 F.3d 410,

413 (5th Cir. 1993). Second, Plaintiff complains that items available for purchase at the TPCJC

commissary are overpriced. In that regard, prison officials have no constitutional duty to
make items available for purchase from a prison commissary nor do inmates have a

constitutionally protected liberty interest in purchasing goods from the commissary at the

lowest possible price. Patin v. LeBlanc, No. 11-CV-3071, 2012 WL 3109402 at *31 (E.D. La.

May 18, 2012), adopted, 2012 WL 3109398 (E.D. La. Jul. 31, 2012). In Vinson v. Texas Board
of Corrections, 901 F.2d 474, 475 (5th Cir. 1990), for example, the Fifth Circuit affirmed the

dismissal of a prisoner’s suit as frivolous, as well as the imposition of monetary sanctions,
where the prisoner had alleged, inter alia, that the commissary was selling rulers for 30 cents

above normal price and typing paper for five cents more than the normal price, referring to
the issues raised as utterly lacking in merit.

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For all these reasons, Plaintiff’s suit is dismissed with prejudice under

§1915(e)(2)(B)(i) and (ii). Judgment will be entered accordingly.
New Orleans, Louisiana, this 10th day of

February

, 2017.

MICHAEL B. NORTH
UNITED STATES MAGISTRATE JUDGE

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