Marshall v. Pohlman
ORDER AND REASONS: IT IS ORDERED that Madison Marshall IIIs claims against Sheriff James Pohlman are DISMISSED WITH PREJUDICE as frivolous and otherwise for failure to state a claim for which relief can be granted under 28 U.S.C. § 1915, § 1915A, and 42 U.S.C. § 1997e. Signed by Magistrate Judge Karen Wells Roby on 6/21/2017.(tm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MADISON MARSHALL, III
UNITED STATES MAGISTRATE
JUDGE KAREN WELLS ROBY
ORDER AND REASONS
Before the Court is a complaint filed by the pro se pauper Plaintiff Madison Marshall, III
(“Marshall”) filed against Defendant Sheriff James Pohlman. In accordance with Title 28 U.S.C.
§ 636(c) and the consent of the parties, this matter has been referred to the undersigned Magistrate
Judge for all further proceedings and entry of judgment. R. Doc. 12. Upon review, the Court has
determined that the complaint is frivolous. As such, for the following reasons, the Plaintiff’s claims
against Sheriff Pohlman are DISMISSED.
On October 28, 2016, the Plaintiff Madison Marshall, III filed the instant complaint. R.
Doc. 1. On November 1, 2016, the Court granted Marshall’s request to proceed in forma pauperis.
Marshall alleges that from August 19, 2016 through September 29, 2016 he was living in an unfit
environment in the St. Bernard Parish jail. He alleges that the toilets did not function and that he
had to smell urine for a week where he slept and ate. R. Doc. 1, p. 5. Marshall also states that he
complained about the feeding situation as the plastic plates were filthy and dirty with black stains.
Id. at p. 5, 8. Moreover, he complains that the showers were full of mold and mildew. Id. He further
states that water leaked everywhere in the shower and that the only cleaning supplies were a mop
and broom. Id. Marshall asserts that he filed complaints with the Ranking St. Bernard Deputys,
but that he was ignored. Marshall seeks $500,000 for the unsanitary practices and environments
he was housed in as well as the unfit living quarters. Id. at p. 6.
Standard of Review
“[A] District Court may dismiss without prejudice a pro se litigant's complaint if it is
frivolous or malicious.” Harris v. United States Dept. of Justice, 680 F.2d 1109, 1111 (5th Cir.
1982) (citing Mitchell v. Beaubouef, 581 F.2d 412, 416 (5th Cir. 1978)). As the Fifth Circuit in
The two stage procedure that has been adopted in this Circuit for processing
prisoner pro se complaints filed in forma pauperis has full application in the present
context for it gives adequate protection to those not represented by attorneys and
comports with the explicit provisions of 28 U.S.C. [§] 1915. The District Court first
decides whether the litigant meets the economic requirements to proceed in forma
pauperis. Then, pursuant to [§] 1915[(e)(2)], the Court may dismiss the complaint
if, upon giving it the liberal reading traditionally granted pro se complaints, it
determines that it is unmeritorious, frivolous or malicious.
680 F.2d at 1111 (internal citations omitted); see also 28 U.S.C. § 1915(e)(2); see also Phillips v.
City of Dallas, 2015 WL 233336, at *4 (N.D. Tex. Jan. 14, 2015) (noting that “a district court may
summarily dismiss a complaint filed in forma pauperis if it concludes that the action” is frivolous,
malicious or fails to state a claim).
The Court has broad discretion in determining the frivolous nature of the complaint. See
Cay v. Estelle, 789 F.2d 318 (5th Cir. 1986), modified on other grounds, Booker v. Koonce, 2 F.3d
114 (5th Cir. 1993). However, the Court may not sua sponte dismiss an action merely because of
questionable legal theories or unlikely factual allegations in the complaint.
A claim is frivolous only when it lacks an arguable basis either in law or in fact. Neitzke
v. Williams, 490 U.S. 319 (1989); Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998). A claim lacks
an arguable basis in law if it is based on an undisputably meritless legal theory, such as if the
complaint alleges the violation of a legal interest which clearly does not exist. Harper v. Showers,
174 F.3d 716, 718 (5th Cir. 1999). It lacks an arguable factual basis only if the facts alleged are
"clearly baseless," a category encompassing fanciful, fantastic, and delusional allegations. Denton
v. Hernandez, 504 U.S. 25, 32-33 (1992); Neitzke, 490 U.S. at 327-28. Therefore, the Court must
determine whether the plaintiffs' claims are based on an undisputably meritless legal theory or
clearly baseless factual allegations. Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994); see
Jackson v. Vannoy, 49 F.3d 175, 176-77 (5th Cir. 1995); Moore v. Mabus, 976 F.2d 268, 269 (5th
Marshall has named Sheriff Pohlman as defendants, seeking to hold him liable in his
supervisory roles in the facility. However, a supervisory official cannot be held liable pursuant to
§ 1983 under any theory of respondeat superior simply because an employee or subordinate
allegedly violated the plaintiff’s constitutional rights. See Alton v. Texas A&M Univ., 168 F.3d
196, 200 (5th Cir. 1999); see also Baskin v. Parker, 602 F.2d 1205, 1220 (5th Cir. 1979).
Moreover, a state actor may be liable under § 1983 only if he “was personally involved in the acts
causing the deprivation of his constitutional rights or a causal connection exists between an act of
the official and the alleged constitutional violation.” Douthit v. Jones, 641 F.2d 345, 346 (5th Cir.
1981); see also Watson v. Interstate Fire & Cas. Co., 611 F.2d 120 (5th Cir. 1980).
Marshall has not alleged that Sheriff Pohlman was personally involved in not properly
providing a clean living facility. The only alleged connection Sheriff Pohlman appears to have
with the case is that he should be in charge of the St. Bernard Parish Jail. Without some personal
action or connection which would render Sheriff Pohlman liable under § 1983, Marshall’s claims
against Sheriff Pohlman as a supervisory official are frivolous and otherwise fail to state a claim
for which relief can be granted.
Marshall also has not alleged that he has suffered any constitutional injury directly resulting
from any order, training, or other policy implemented by Sheriff Pohlman which would create
liability under § 1983. See Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992); Thompson v. Upshur
County, 245 F.3d 447, 459 (5th Cir. 1991); Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987);
see also, City of St. Louis v. Praprotnik, 485 U.S. 112, 124-25 (1988).
Nevertheless, even if Marshall could state a basis for liability against Sheriff Pohlman, his
complaint about the unclean plates are still frivolous. Marshall complains that his food is being
served on dirty and stained plastic plates.
The Constitution mandates that detainees and inmates be provided “‘well-balanced
meal[s], containing sufficient nutritional value to preserve health.’” Green v. Ferrell, 801 F.2d
765, 770 (quoting Smith v. Sullivan, 553 F.2d 373, 380 (5th Cir.1977)) (footnote omitted); see also
Eason, 73 F.3d at 1327 (“To comply with the Constitution, inmates must receive ‘reasonably
adequate’ food.”). Prisons are required to provide “nutritionally adequate food that is prepared and
served under conditions which do not present an immediate danger to the health and well being of
the inmates who consume it.” See French v. Owens, 777 F.2d 1250, 1255 (7th Cir .1985), cert.
denied sub nom, Owens v. French, 479 U.S. 817 (1986).
A minor sanitation restriction or problem, although admittedly unpleasant, does not amount
to a constitutional violation. Whitnack v. Douglas Cnty., 16 F.3d 954, 958 (8th Cir.1994); Knop v.
Johnson, 977 F.2d 996, 1013 (6th Cir.1992); Robinson v. Ill.State Corr. Ctr., 890 F.Supp. 715,
720 (N.D.Ill.1995). “[E]ven unsanitary conditions may not constitute constitutional deprivations
if a good faith effort has been made to maintain a clean area.” Pickett v. Aramark, No. 08-296,
2010 WL 146866, at *2 (N.D. Fla. Jan 8, 2010) (citing Kennibrew v. Russell, 578 F.Supp. 164
(E.D.Tenn.1983)). “Furthermore, without some showing of physical injury resulting from the food
service practices or potential contamination of the food, [a plaintiff] has no basis for bringing a
suit under § 1983.” Walton v. Topps, No. 12-0931, 2012 WL 3947529, at *10 (E.D. La. July 23,
2012) (citing Jackson v. Taylor, No. 05–823, 2008 WL 4471439, at *5 (D. Del. Sep. 26, 2008)).
Here, Marshall has not alleged that he has been denied adequate nutrition or that his dietary
needs have not been met. He has solely alleged a minor sanitation problem in connection with the
plates on which food is served. His claims do not rise to the level of a constitutional violation.
Marshall has also not alleged a physical injury arising from the conditions. As such, Marshall’s
claims can be dismissed with prejudice as frivolous and/or for failure to state a claim for which
relief can be granted pursuant to § 1915(e), § 1915A, and § 1997e. See Walton, 2012 WL 3947529,
at *10; Tatten, 2012 WL 2190781, at *6; Groves v. Gusman, No. 09-7431, 2011 WL 1459775, at
*4 (E.D. La. Mar. 4, 2011).
Condition of Confinement Claim
Even if Marshall had identified a proper defendant, he has not alleged or established a
constitutional violation resulting from the conditions in St. Bernard Parish Jail in order to recover
under § 1983. As a result the claims against the defendant should be dismissed.
The Eighth Amendment’s prohibition on “cruel and unusual punishments” forbids
conditions of confinement “which are incompatible with ‘the evolving standards of decency that
mark the progress of a maturing society’ . . . or which ‘involve the unnecessary and wanton
infliction of pain.’”
Estelle v. Gamble, 429 U.S. 97, 102-103 (1976) (citations omitted).
“[C]onditions that cannot be said to be cruel and unusual under contemporary standards are not
unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of
the penalty that criminal offenders pay for their offenses against society.” Rhodes v. Chapman,
452 U.S. 337, 347 (1981).
As discussed previously, a state actor may be liable under § 1983 only if he “was personally
involved in the acts causing the deprivation of his constitutional rights or a causal connection exists
between an act of the official and the alleged constitutional violation.” Douthit, 641 F.2d at 346.
Furthermore, the official must have acted with deliberate indifference to a known risk of harm to
be liable under § 1983. An official is deliberately indifferent to an inmate’s health and safety in
violation of the Eighth Amendment “only if he knows that the inmates face a substantial risk of
serious harm and disregards that risk by failing to take reasonable measures to abate it.” Farmer
v. Brennan, 511 U.S. 825, 847 (1994); Jones v. Greninger, 188 F.3d 322, 326 (5th Cir. 1999).
“Deliberate indifference cannot be inferred merely from a negligent or even a grossly negligent
response to a substantial risk of harm.” Thompson, 245 F.3d at 459. The plaintiff must prove facts
sufficient to show “at a minimum, that the prison officials realized there was imminent danger and
have refused--consciously refused, knowingly refused--to do anything about it.” Campbell v.
Greer, 831 F.2d 700, 702 (7th Cir. 1987). Applying these factors to the instant case, Marshall has
not alleged a constitutional violation based on the conditions in St. Bernard Parish Jail.
The conditions described by plaintiff—an improperly functioning toilet, the smell of urine,
mold, mildew, and dampness—while plainly not comfortable or pleasant, do not rise to a level of
seriousness to be considered a constitutional violation. The federal courts have long recognized
that 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). The Courts also have
repeatedly held “that the Constitution does not mandate prisons with comfortable surroundings or
commodious conditions.” Talib, 138 F.3d at 215 (citing Rhodes, 452 U.S. at 349); accord
Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008).
In keeping with this philosophy, the federal courts have recognized that certain institutional
problems such as dust, mold, and stale air do not amount to a constitutional violation. See, e.g.,
White v. Gusman, No. 14-2131, 2014 WL 6065617, at *1 (E.D. La. Nov. 12, 2014); Harrison v.
Cox, No. 12-1813, 2013 WL 620799, at *5 (W.D. La. Jan.16, 2013), adopted, 2013 WL 622399,
at *1 (W.D. La. Feb. 15, 2013); Clark v. Gusman, No. 11-2673, 2012 WL 1825306, at *5 (E.D.
La. Mar. 29, 2012), adopted, 2012 WL 1825302, at *1 (E.D. La. May 18, 2012). To the extent
Marshall asserts that these factors were present, he has not stated a constitutional violation.
Furthermore, the jurisprudence has repeatedly held that the presence of mold and dampness
in a prison setting does not render an inmate’s confinement unconstitutional. See, e.g., Eaton v.
Magee, No. 10-112, 2012 WL 2459398, at *5 (S.D. Miss. Jun. 27, 2012) (“Plaintiff’s claim that
the bathroom and shower area are unsanitary and contain black mold fails to rise to the level of a
constitutional violation.”); Barnett v. Shaw, No. 11-0399, 2011 WL 2200610, at *2 (N.D. Tex.
May 18, 2011) (allegation of “excessive amount of black mold in the showers and sinks” was
insufficient to raise a claim for constitutional violation), adopted, 2011 WL 2214383, at *1 (N.D.
Tex. Jun. 7, 2011).
Thus, Marshall’s allegations about mold and dampness fail to establish constitutional
violations. See 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) (citing
Talib, 138 F.3d at 215). “Simply because [plaintiff’s] dorm is less sanitary than he would like
does not render the conditions unconstitutional.” Wilson v. Lynaugh, 878 F.2d 846, 849 & n.5 (5th
Cir. 1989)) (inmate who complained of “unsanitary practice[s],” including inadequate ventilation,
unsanitary 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.); Smith v. Melvin,
934 F.3d 647, 1996 WL 467658, at *2 (7th Cir. July 26, 1996) (unpublished table decision)
(“Leaky toilets and puddles are unpleasant but not unconstitutional.”).
For the foregoing reasons, Marshall’s claims are frivolous and otherwise failed to present
a claim for which relief can be granted. The claims should be dismissed for this reason under §
1915, § 1915A, and § 1997e.
IT IS ORDERED that Madison Marshall III’s claims against Sheriff James Pohlman are
DISMISSED WITH PREJUDICE as frivolous and otherwise for failure to state a claim for
which relief can be granted under 28 U.S.C. § 1915, § 1915A, and 42 U.S.C. § 1997e.
New Orleans, Louisiana, this 21st day of June 2017.
KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE
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