Love v. Bendily

Filing 29

REPORT AND RECOMMENDATIONS regarding 23 MOTION for Summary Judgment filed by Lewis E. Love..recommends that the motion be denied.. Objections to R&R due by 3/13/2009. Signed by Magistrate Judge Stephen C. Riedlinger on 02/27/09. (PAH, )

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

LEWIS E. LOVE (#457127) VERSUS JODY BENDILY, ET AL NOTICE Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U. S. District Court. In accordance with 28 U.S.C. § 636(b)(1), you have ten days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within ten days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT. Baton Rouge, Louisiana, February 27, 2009. CIVIL ACTION NUMBER 08-506-JVP-SCR

STEPHEN C. RIEDLINGER UNITED STATES MAGISTRATE JUDGE

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA LEWIS E. LOVE (#457127) VERSUS JODY BENDILY, ET AL CIVIL ACTION NUMBER 08-506-JVP-SCR

MAGISTRATE JUDGE'S REPORT Before Judgment. the court is the plaintiff's Motion for Summary

Record document number 23.

The motion is not opposed.

Pro se plaintiff, an inmate confined at Dixon Correctional Institute, Jackson, Louisiana, filed this action pursuant to 42 U.S.C. § 1983 against former Louisiana Department of Public Safety and Corrections Secretary Richard L. Stalder, former Warden James LeBlanc, Warden Steve Rader, former Assistant Warden Dennis Grimes and Col. Jody Bendily. Plaintiff alleged that the defendants were

deliberately indifferent to his serious medical needs and subjected him to unconstitutional conditions of confinement in violation of his constitutional rights. Plaintiff moved for summary judgment1 relying on a statement of undisputed facts, the plaintiff's declaration, a copy of the

results of Administrative Remedy Procedure DCI-2007-597, copies of

Plaintiff addressed claims in his motion for summary judgment which were not raised in his complaint. Plaintiff's motion for summary judgment shall not be treated as an amendment to the complaint.

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the results of emergency reclassification boards dated September 12 and 26, 2007, copies of correspondence to prison officials, a copy of a memorandum from Louise Mitchell, R.N. dated September 20, 2007, copies of medical duty status forms, copies of Compound 1 Limited Duty lists, a copy Policy Number 4B-002, a copy of a Heat Pathology list, and copies of articles regarding Chronic

Obstructive Pulmonary Disease (COPD). Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56, Fed.R.Civ.P. Supporting

affidavits must set forth facts which would be admissible in evidence. Opposing responses must set forth specific facts showing that there is a genuine issue for trial. Rule 56(e).

Plaintiff alleged that he suffers from asthma, and in 2003 was issued a permanent limited medical duty status which restricted him to performing work indoors with no exposure to dust or chemicals. Plaintiff alleged that on September 12, 2007, he was advised by a treating physician that his asthma had progressed to COPD.

Plaintiff alleged that Col. Bendily reclassified him to regular duty as a dormitory orderly the same day. Plaintiff alleged that

the duties he was required to perform as a dormitory orderly exposed him to dust and required him to use cleaning products which aggravated his asthma and COPD. Plaintiff alleged that he notified Col. Bendily, Asst. Warden Grimes, Warden Rader and Warden LeBlanc 2

that

his

work

assignment

was

causing

him

to

be

exposed

to

conditions which aggravated his medical condition.

Plaintiff

alleged that on September 26, 2007, he was reclassified to a limited duty status and was assigned to the Corrections Learning Network, which is an educational program held in Recreation Room II on Compound 1. Plaintiff alleged that he is required to attend the class seven hours per day, five days per week. Plaintiff alleged

that throughout the day inmate orderlies use bleach, germicide, dust mops, and metal (brass) cleaners which aggravate his asthma and COPD. The Eighth Amendment prohibits only the wanton and unnecessary infliction of pain. (1976). Whether Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285 the treatment received by an inmate is

characterized as inhumane conditions of confinement, a failure to attend to medical to needs, the or a combination of both, it is

appropriate

apply

"deliberate

indifference"

standard

articulated in Estelle. 2321, 2327 (1991).2 Some conditions

Wilson v. Seiter, 501 U.S. 294, 111 S.Ct.

of

confinement

may

establish

an

Eighth

Amendment violation "in combination" when each would not do so alone, but only when they have a mutually enforcing effect that In Seiter, the Supreme Court stated that, in emergency situations, where prison officials must act "in haste, [and] under pressure", the requisite intent rises to "acting `maliciously and sadistically for the purpose of causing harm.'" Seiter, 501 U.S. 294, 111 S.Ct. at 2321. 3
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produces the deprivation of a single, identifiable human need. Nothing so amorphous as "overall conditions" can rise to the level of cruel and unusual punishment when no specific deprivation of a single human need exists. Id. The summary judgment evidence showed that the plaintiff was issued a medical duty status by Dr. Tarver on September 12, 2007, assigning the plaintiff to regular duty indoors, bottom bunk, no dust, no chemicals and may have an extra blanket.3 On September

12, 2007, reclassification board members Gwen White and Col. Bendily reclassified the plaintiff from limited duty CR C-1 to dormitory C orderly.4 On September 21, 2007, the plaintiff sent

correspondence to Warden Rader and Warden LeBlanc complaining that his reclassification to a job as a dormitory orderly was

aggravating his medical condition.5

Warden Rader referred the In her

plaintiff's letter to Louise Mitchell, Nursing RN Manager.6

response, Mitchell advised the plaintiff that his classification would be reviewed by the next reclassification board and would be assigned work duties in accordance with his duty status.7 On

September 26, 2007, reclassification board members White and Col.

3 4 5 6 7

Rec.doc.no. 23-3, p. 8, exhibit 1. Rec.doc.no. 23-2, p. 3, exhibit 2. Rec.doc.no. 23-2, pp. 5-6, exhibit 4. Rec.doc.no. 23-2, p. 7, exhibit 5. Id. 4

Bendily reclassified the plaintiff from dormitory C orderly to limited duty CR C-1.8 Plaintiff was assigned a job at "C.L.N.", On October

which presumably is the Corrections Learning Network.9

17, 2007, the plaintiff was issued a duty status assigning him to regular duty indoors, bottom bunk, no lifting greater than 15 pounds, must sit to work, no excess dust or chemicals, extra blanket, and extra pillow to raise head.10 On January 11, 2008, the plaintiff was issued a permanent duty status with the same

restrictions identified in the October 17, 2007 duty status.11 This duty status only prohibited the plaintiff from being exposed to "excess" dust or chemicals; it did not prohibit his exposure to all dust or chemicals. The summary judgment evidence is not sufficient to support summary judgment for the plaintiff. Although the foregoing

historical information is undisputed, there is insufficient summary judgment evidence to support finding that the plaintiff was exposed to excessive levels of dust or chemicals while he attended

Corrections Learning Network classes and that he was actually injured as a result of the alleged exposure to the irritants during those classes.

8 9 10 11

Rec.doc.no. 23-3, p. 14, exhibit 6. Rec.doc.no. 23-3, p. 15, exhibit 7. Rec.doc.no. 23-3, p. 16, exhibit 8. Rec.doc.no. 23-3, p. 56, exhibit 18. 5

RECOMMENDATION It is the recommendation of the magistrate judge that the plaintiff's motion for summary judgment be denied. Baton Rouge, Louisiana, February 27, 2009.

STEPHEN C. RIEDLINGER UNITED STATES MAGISTRATE JUDGE

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