Marlin v. Young et al

Filing 95

JUDGMENT ADOPTING 82 Report and Recommendation: ORDERED that the Report and Recommendation is adopted and the motion to dismiss and motion for summary judgment are GRANTED dismissing with prejudice all claims asserted by plaintiff pursuant to the A DA and dismissing without prejudice the instant lawsuit for lack of jurisdiction. The Clerk of Court is hereby directed to return to plaintiff the attached complaint in order for him to properly re-file said complaint. Signed by Judge James T Trimble, Jr on 12/15/09. (crt,Harrison, U)

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IN ALEXANDAIA, LA. RECEWED DEC 15 ?009 TONY R. Mcd, CLERK DEPUTY UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAKE CHARLES DIVISION : : : DOCKET NO. 05-2172 JUDGE TRIMBLE MAGISTRATE JUDGE KAY MICHAEL D. MARLIN VS. J. YOUNG, ET AL JUDGMENT On April 3, 2009, the Magistrate Judge issued a Report and Recommendation' wherein it was recommended that Defendants' motion to dismiss and motion for summary judgment be granted and that Plaintiff's claims pursuant to the Americans With Disability Act,2 be dismissed with prejudice and that the instant action be dismissed without prejudice for lack of jurisdiction because the Petitioner failed to exhaust his administrative remedies prior to filing suit. Plaintiff was given ten (10) days to object, but failed to do so. On April 24, 2009, the undersigned adopted the recommendation dismissing the ADA claims with prejudice and dismissing the suit without prejudice for failure to exhaust administrative remedies.3 On August 20, 2009, Petitioner filed a motion to re-open4 the case maintaining that he had not received the Report and Recommendation, rather it had been sent to his court appointed attorney. Doc.#81. 2 litle 42, United States Code, 12010, et seq. ~ Doc. #82. ~` I)oc. #85. Plaintiff's attorney had been appointed solely for effectuating service on defendants. The attorney was relieved of representation after service was properly made. Accordingly, the Magistrate Judge granted Plaintiff's motion and reopened the case to allow Petitioner to object to the Report and Recommendation.5 Since the case has been re-opened, Plaintiff has filed an objection,6 Defendants have filed a response lo that objection,7 and Plaintiff has filed a response to Defendants' response.8 In his response, Plaintiff concedes that the claims pursuant to the ADA should be dismissed with prejudice.9 Plaintiff further admits that the case must be dismissed withoutprejudice for failure to exhaust administrative remedies and that he must re-file his Complaint.'0 Petitioner attached to his obj ecti:on, a "Civil Rights Complaint Pursuant to 28 U. S .C. 1131 `. `Petitioner's only complaint or objection to the report and recommendation is that he requests that he not pay an additional filing fee. Accordingly, it is OI~DEREDhat the Report and Recommendation ofthe Magistrate Judge is hereby adopted, t and the motion to dismiss and motion for summary judgment'2 are hereby GRANTED dismissing ~ Doe. #87. 6 Doc. #92. ~ Doc. #93. 8 Doe. #94. ~ Doc. #94, p. 3, (A). ` Doc. #94, pp. 3-4. Id. Doe. #73. 2 " 2 with prejudice all claims asserted by Plaintiff pursuant to the ADA and dismissing without prejudice, the instant lawsuit for lack ofjurisdiction. The Clerk of Court is hereby directed to return to Plaintiff the attached Complaint in order for him to properly re-file said Complaint. THUS DONE AND SIGNED in Chambers at Lake Charles, Louisiana, this December, 2009. /~ ~ay of JAME~T.TRIMBLE, JR. UNIT1~15 TATES DISTRICT JUDGE S 3 R~VED ~ NOV 2 0 2009 TONY R.MOORE,GL~< tESTERN DISTRICT OF LOUISIANA IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHflEVEP0RT,WS~ Lake Charles Division Michael D. Marlin Refiling No.:2:O5cv 2172 vs. (1) J. Young, Warden (2) S (4) Marler, Assoc. Warden McMeal, Assoc. Warden Case No.: Demanding A Jury Trial (3) K. Edenfield, Assoc. Warden - (5) Scarlett Lusk, Health Serv.Adm. (6) T.Voicene, Correctional Officer (7) S. Million, Correct. Captain (~) - Jimenez, Admin. Remedy Coord. Civil Rights Complaint Pursuant To 28 U.S.C. 1331 (Bi'v~ens v. Six Unknown Named Agents of Federal Bureau of Narcotics) Comes now Plaintiff, Michael D. Marlin, proceeding pro Se, respectfully files this Civil Rights Complaint; Demanding a Jury Trial against the above named Defendants for violations of Plaintiff's guaranteed Constitutional Rights under color of federal law. Def endants "knew" they were violating Constitutional Rights before this claim. Jurisdiction 1) This court's jurisdiction is invoked under 28 U.S.C.~ 1331 and 1343, and Bivens v. Six Unknown Agents of Federal Bureau of Nar- cotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). 2) Venue is proper in this court under 28 USC~ 1391(h)(2) 1. Parties 3) Michael P. Marlin is the sole Plaintiff and a prisoner at Beaumont Federal Correctional Complex-Low, located at 5560 Knauth Rd.,, Beaumont, TX 77705. Mailing address is P.O.Box 26020, Beaumont, TX 77720--6020. 4) Defendants are employees Of the Bureau of Prisons, Oakdale Federal Cortrectional Institution, 1507 B. Whatley Rd., Oaldale, LA 71463. All Defendants are being sued in both their official and personal capacities for damages. Exhaustion 5) Plaintiff has exhausted all administrative remedies pursuant to Title 42~ 1997 (e) a. and all requirements under the P.L.R.A. General Allegations 6) On November 17, 2005, C.O. Voicene proceeded to place Plaintiff in a non-handicap accessible cell itiSegregated Housing Unit (S.H.U.) after being told he was violating Plaintiff's Constitution- al Rights. These cells have no emergency call button(s) to summon help in case of an emergency. In the two weeks being housed in Silt.), Plaintiff was denied the basic necessities and facilities to accomplish basic hygiene, i.e. handicap toilet with grab bars, a handicap accessible shower. In fact, Plaintiff was locked in a shower stall for an hour with very hot water without no way to reach faucet handles and Plaintiff cried out in vain for an officer to provide release from this locked shower stall with no handicap seat. 7) In the two weeks under this torture, the temperatures were extremely cold aggravating Plaintiff's inner ear trouble. Plaintiff has thrown newspapers off a bicycle in the pouring, freezing rain and built houses for over twenty-five years in the freezing temperatures, but never was the severe cold that was experienced at night. While in SHU, Defendant Lusk's staff administered antibiotics and when released, Plaintiff went to Health Services with extreme ear 2. infections in both ears. I told Ms. Lusk at least three times while in SHtJ that I was hurting and I was extremely cold. To this date, I have had trouble with my ears that is very different to my inner ear trouble. By the hearing tests administered at Oakdale F.C.I. and the current Beaumont F.C.C. shows a loss of hearing that is irreparable. Being H.S.A., Ms.. Lusk refused to help me. 8) Plaintiff told every Defendant, except C.O. Voicene, at least twice of my needs being in a wheelchair, and each refused to provide relief. 9) Plaintiff told the Defendants that the law library in S.H.U. was inadequate and requested law books to answer ongoing cases and the cOrrectional officers refused to supply law books. 10) Plaintiff was enrolled in classes in Education and I was refused. Fourteen days I requested books and was denied. 11) Plaintiff was denied religious services. 12) Defendant Warden Young came by twice iii the fourteen days and I requested release or at least give me a blanket to cover up and he just smiled, did nothing. 13) Assoc. Warden Ms. Mc Meal was the only one who would listen to my pleas, but she said her hands were tied and it was up to the War~den (J.Young, Defendant). 14) In early 2005, a wheelchair prisoner got into trouble and Ad- ministration locked him in his own cell, the cell Plaintiff was housed in the Rapides Unit, with a toilet and sink and they brought his meals to his cell in Rapides. 15) After two weeks in SHU, Plaintiff was released because the Lieutenant stated "the snitchnote" was absent--mindedly thrown away saying I would be stabbed if left out in the compound". After release, Plaintiff was not accosted nor approached by any inmate agressively. 16) ~)efendant Warden Young wanted to retaliate against Plaintiff because his wife was the Staff Attorney at Forrest City F.C.I., the IflStitUtiOn where Plaintiff came from, and was mad because I disputed her "undisputable facts" pertaining to a Case I was involved with. 3. 17) All the Defendants have caused irreparable damage to Plain- tiff's ears/hearing; one of life's basic necessities. Causes of Actions RELI~F 18) Count One Defendant Young deliberately placed Plaintiff in a very cold environment purposely to harm me. Plaintiff seeks one million dollars for compensatory and Court's determination for punitive damages. 19) Count Two Captain Million knew he was violating Plaintiff's Constitutional Rights, expecially Eighth Amendment and seeking one million dollars compensatory and Court~sdetermination for punitive damages. 20) Count Three Assoc. Warden Marler knew he wa.s violating Plaintiff's Eighth Amendment, seeking Five Hundred Thousand dollars and all punitive damages. 21) Count Four Associate Wardens McMeal and Edenfield and C.O. Voicene knew they were violating Plaintiff's Eighth Amendment and Plaintiff seeks Two Hundred and fifty thousand dollars each and all punitive damages. 22) Count Five Defendant Health Servives Administrator Ms. S. Lusk knew she was hurting Plaintiff deliberately, knowingly and maliciously seeking One Million dollars and all punitive damages. 23) Count Six Mr. - Jimenez is held accountable to Five Hundred thousand dollars. Prayer 24) WHEREFORE, by all truthful statements above, Plaintiff prays this 4. Honorable Court to Order: 1. Judgment as demanded in this complaint; 2. Compensatory, punitive and nominal damages; 3. Jury Trial on all triable issues. 4. All attorneys fees and Al]. costs; 5. Such further relief as this Court deems just and proper. Certification 25) I, Michael D. Marlin, do hereby certify that all statements made in this compalint as true and correct to the best of my knowledge under all pains and penalties of perjury pursuant to Title 28 USC 1746, triable in any U.S. Court. November 9, 2009 ~ OI~3 `lOb ~ ~ Michael D. Marlin # 08387-003 F.C.C. Beaumont Low, Unit SB P.O.Box 26020 Beaumont, TX 77720-6020 5. R~EIVED ~ T. NOV 2 ~ 2~O9 TONY R. 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