BANKS v. FOTI

Full title: LEROY BANKS III v. SHERIFF CHARLES C. FOTI

Court: United States District Court, E.D. Louisiana

Date published: Apr 17, 2000

CIVIL ACTION NO. 99-3180 SEC. "C" (1) (E.D. La. Apr. 17, 2000)

Opinion

CIVIL ACTION NO. 99-3180 SEC. "C" (1).

April 17, 2000.

PARTIAL REPORT AND RECOMMENDATION

SALLY SHUSHAN, Magistrate Judge.

Plaintiff, Leroy Banks, is a prisoner currently incarcerated in the Orleans Parish Prison (OPP). He filed this pro se and in forma pauperis complaint seeking damages pursuant to 42 U.S.C. § 1983 against Sheriff Charles C. Foti. In his complaint and amended complaint, plaintiff alleges that the conditions of his confinement while incarcerated in the OPP amount to cruel and unusual punishment. Plaintiff also contends that he fears for his life because he is a pre-trial detainee who is housed with convicted inmates who have been remanded to the custody of the Louisiana Department of Public Safety and Corrections (DOC). Finally, plaintiff alleges in his amended complaint that the defendant was deliberately indifferent to his medical needs.

STANDARD OF REVIEW

An in forma pauperis complaint may be dismissed if it is determined that the allegation of poverty is untrue, or if the action or appeal is frivolous, malicious, fails to state a claim for which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2). The Court has broad discretion in determining the frivolous nature of the complaint. See Cay v. Estelle, 789 F.2d 318 (5^th Cir. 1986), modified on other grounds, Booker v. Koonce, 2 F.3d 114 (5^th Cir. 1993). In doing so, the Court has ". . . not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989); Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5^th Cir. 1994). Thus, a complaint is frivolous "if it lacks an arguable basis in law or fact." Reeves v. Collins, 27 F.3d 174, 176 (5^th Cir. 1994) (citation omitted); see also Booker, 2 F.3d at 116. With the exception of his claim that it is improper for him to be housed with DOC inmates since he is a pre-trial detainee,¹ Banks' allegations lack any arguable basis in law and should be dismissed as frivolous and for otherwise failing to state a claim for which relief can be granted.

1 The court must liberally construe a pro se civil rights complaint. See Moore v. McDonald, 30 F.3d 616, 620 (5^th Cir. 1994).

STANDING:

As an initial matter, this Court notes that plaintiff attempts to raise claims in his complaint on behalf of other inmates incarcerated in the OPP. In order for a plaintiff to bring a lawsuit before the federal courts, Article III of the U.S. Constitution requires there be a case or controversy over which the federal court has jurisdiction and that the plaintiff has standing to assert the claim. Standing, "at its `irreducible constitutional minimum,' requires that the plaintiff demonstrate that he or she has suffered injury in fact, that the injury is fairly traceable to the actions of the defendant, and that the injury will likely be redressed by a favorable decision.'"Association of Community Organizations for Reform Now v. Fowler, 178 F.3d 350, 356 (5^th Cir. 1999) (quoting Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 1161, 137 L.Ed.2d 281 (1997)). Therefore, to the extent he attempts to raise claims on behalf of anyone other than himself, plaintiff lacks standing to raise those claims and they should be dismissed as frivolous.

RESPONDEAT SUPERIOR LIABILITY

Although he named Sheriff Foti as a defendant, plaintiff does not allege that any action by Sheriff Foti violated his constitutional rights. Rather, plaintiff named Sheriff Foti as a defendant because he has supervisory authority over the Orleans Parish Prison. A supervisory official cannot be held liable pursuant to § 1983 under any theory of respondeal superior simply because an employee or subordinate allegedly violated plaintiff's constitutional rights. See Alton v. Texas AM University, 168 F.3d 196, 200 (5^th Cir. 1999); see also Baskin v. Parker, 602 F.2d 1205, 1220 (5^th Cir. 1979). 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 that a causal connection exists between an act of the official and the alleged constitutional violation." Douthit v. Jones, 641 F.2d 345, 346 (5^th Cir. 1981); see also Watson v. Interstate Fire Casualty Co., 611 F.2d 120 (5^th Cir. 1980). Plaintiff has not alleged that Sheriff Foti was personally responsible for any alleged violation of his constitutional rights, nor for any of the acts about which plaintiff complains in this lawsuit.

"A supervisory official may be held liable under § 1983 for the wrongful acts of a subordinate when the supervisory official breaches a duty imposed by state or local law, and this breach causes plaintiff's constitutional injury." Smith v. Brenoettsy, 158 F.3d 908, 911 (5^th Cir. 1998) (citing Sims v. Adams, 537 F.2d 829, 831 (5^th Cir. 1976)). In order for Sheriff Foti to be held liable in his capacity as a supervisory official for his failure to train his employees, Banks must show that:

1) the supervisor either failed to supervise or train the subordinate official; 2) a causal link exists between the failure to train or supervise and the violation of the plaintiff's rights; and, 3) the failure to train or supervise amounts to deliberate indifference. For an official to act with deliberate indifference, the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.

Id. at 911-12 (internal quotes and citations omitted). Plaintiff has not alleged that the events about which he complains resulted from Sheriff Foti's failure to train his employees.

Finally, "a supervisory official cannot be liable merely for failing to adopt policies to prevent constitutional violations; however, he can be held liable if he affirmatively adopts policies which are wrongful or illegal." Reimer v. Smith, 663 F.2d 1316, 1323 (5^th Cir. 1981). Plaintiff has made no allegation that his constitutional rights were violated as a result of an illegal policy promulgated by Sheriff Foti.

Sheriff Foti cannot be held liable under a theory of respondeat superior for a § 1983 claim simply because individuals in his employ performed acts that Banks contends violated his constitutional rights. See Alton 168 F.3d at 200; see also Baskin, 602 F.2d at 1208. Without an affirmative link between an act by the defendant and the claim alleged herein, Banks cannot succeed on his respondeat superior claim against Sheriff Foti.See Douthit, 641 F.2d at 346. Accordingly, plaintiff's § 1983 claims against Sheriff Foti are based on a meritless legal theory and should be dismissed as frivolous.

FOURTEENTH AMENDMENT

"The constitutional rights of a pretrial detainee flow from both the procedural and substantive due process guarantees of the Fourteenth Amendment, which provides that no state shall `deprive any person of life, liberty, or property, without due process of law. . . .'" Olabisiomotosho v. City of Houston, 185 F.3d 521, 525-26 (5<sup>th</sup> Cir. 1999) (internal quotes and citations omitted). When analyzing a constitutional challenge by a pretrial detainee, this Court must "begin by deciding whether to classify the "challenge as an attack on a `condition of confinement' or as an `episodic act or omission.'" Olabisiomotosho, 185 F.3d at 526 (quoting Scott v. Moore, 114 F.3d 51, 53 (5^th Cir. 1997) (en banc)). The former category would include such claims as "where a detainee complains of the number of bunks in a cell or his television or mail privileges." Id. The latter category, on the other hand, occurs "where the complained-of harm is a particular act or omission of one or more officials." Id. The protections guaranteed by the Fourteenth Amendment, whether procedural or substantive, are not triggered by negligent inaction. See id. (citing Davidson v. Cannon, 474 U.S. 344, 348, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986)). In his complaint, plaintiff states that he is a pretrial detainee and claims that: 1) his health was endangered when he was exposed to AIDS by being housed in the same cell with an inmate who is infected with the disease; 2) the tier in which he is housed was not properly sanitized after an inmate complained of having pubic lice; 3) the tier's guard booth was unattended on three separate dates; 4) on October 30, 1999, the deputy contaminated the gloves to be used by the inmates who served food by placing them on the floor and sliding them under the door; and, 5) the washbasin and toilets in the cells were not working on three separate occasions.² Although presented to the Court as a challenge to the conditions of his confinement, plaintiff's claims amount to a complaint about episodic acts or omissions by prison officials.³

2 Plaintiff also complains that there is inadequate ventilation in the OPP. Issues relating to ventilation in the OPP have been adjudicated by this Court to assure compliance with constitutional mandates. See Hamilton v. Morial, No. 69-2443 "LLM" (5) (E.D. La., Order and Reasons, May 24, 1993) (Mitchell, J.). This claim is frivolous and should be dismissed.

3 Plaintiff also claims that the conditions of his confinement amount to punishment because he is incarcerated in the same tier as convicted inmates even though he is a pre-trial detainee. On this date, the Court issued a minute entry ordering plaintiff to file a statement of facts and witness and exhibit lists regarding this claim. The Court also ordered plaintiff to amend his complaint by naming a proper party as a defendant.

An Eighth Amendment analysis applies to both convicted prisoners and pre-trial detainees alleging an episodic act or omission. See Hare v. City of Corinth, 74 F.3d 633, 650 (5^th Cir. 1996)) ("subjective definition of deliberate indifference [enunciated in Farmer v. Brennan] provides the appropriate standard for measuring the duty owed to pretrial detainees under the Due Process Clause"). For an individual defendant, a plaintiff "must establish that the official acted with subjective deliberate indifference to prove a violation of his constitutional rights." Olabisiomotosho, 185 F.3d at 526 (quotingFlores v. County of Hardeman, 124 F.3d 736, 738-39 (5^th Cir. 1997)). In order to prove that an individual defendant acted with subjective deliberate indifference, a plaintiff must show that "the official had subjective knowledge of a substantial risk of serious harm to a pretrial detainee but responded with deliberate indifference to that risk." Id. (quoting Hare, 74 F.3d at 650).

Plaintiff alleges that his health was endangered when he was exposed to AIDS by being housed in the same cell with an inmate who is infected with the disease and when OPP officials failed to disinfect the tier in which he is housed after an inmate complained of having pubic lice. Plaintiff does not allege that he contracted AIDS or pubic lice. The Prison Litigation Reform Act (PLRA) enacted a new statutory provision, 42 U.S.C. § 1997e(e), which provides that:

No Federal civil action may be brought by a prisoner confined in a jail, prison or other correctional facility for mental or emotional injury suffered while in custody without a prior showing of physical injury.

Plaintiff alleges that because OPP officials fail to practice healthy sanitary practices, he suffers from mental stress and pain. The PLRA created a statutory bar to recovery for mental and/or emotional damages unless the plaintiff alleges a physical injury. See Jones v. Greninger, 188 F.3d 322, 326 (5^th Cir. 1999); see also 42 U.S.C. § 1997e(e) (West 1999). Plaintiff has not alleged that he suffered a physical injury as a result of being housed on the same tier as an inmate who is infected with AIDS or as a result of being housed on the same tier as an inmate who is infected with pubic lice. Accordingly, plaintiff's claim should be dismissed as frivolous because of his failure to state a claim pursuant to 42 U.S.C. § 1983.

Plaintiff also argues that he feared for his life when the guard booth on his tier was left unattended on three separate dates. Again, plaintiff has not alleged that he suffered a physical injury as a result of the guard booth being left unattended, but merely argues that his safety was potentially at risk. Accordingly, plaintiff's claim should be dismissed as frivolous because of his failure to state a claim pursuant to 42 U.S.C. § 1983. See Jones, 188 F.3d at 326 see also 42 U.S.C. § 1997e(e) (West 1999).

Plaintiff also alleges that on October 30, 1999, the deputy contaminated the gloves to be used by the inmates who served food by placing them on the floor and sliding them under the door. Plaintiff does not contend that he was physically injured as a result of this action by the deputy. Plaintiff's concern that the dirty gloves might have contaminated the food being served that day with dirt germs plaintiff's claim should also be dismissed as frivolous. See Jones, 188 F.3d at 326 see also 42 U.S.C. § 1997e(e) (West 1999).

Finally, plaintiff claims that the washbasin and toilets in the cells were not working on three separate occasions. Plaintiff admits that he had use of a working bathroom, but argues that it took too long for OPP officials to fix the plumbing. Plaintiff has alleged no facts that would show that any prison official had subjective knowledge of a substantial risk of serious harm to a pretrial detainee but responded with deliberate indifference to that risk." Olabisiomotosho, 185 F.3d at 526. Because plaintiff has not alleged that any individual defendant acted with subjective deliberate indifference, his claim is legally frivolous and should be dismissed.

DENIAL OF MEDICAL CARE

In the absence of allegations that a defendant's actions or omissions were other than episodic, an Eighth Amendment analysis applies to both convicted prisoners and pre-trial detainees in denial of medical care cases. See Hare v. City of Corinth, 74 F.3d 633, 648-49 (5^th Cir. 1996) (citing Sanderfer v. Nichols, 62 F.3d 151, 154-55 (6^th Cir. 1996) (applying Farmer's subjective standard of deliberate indifference to pretrial detainee's medical care claim). Thus, pre-trial detainees are not "entitled to greater protection of rights shared in common with convicted inmates." Id. at 649 (citing Cupit v. Jones, 835 F.2d 82, 85 (5^th Cir. 1987) (noting that "the distinction as to medical care due a pretrial detainee, as opposed to a convicted inmate, may indeed be a distinction without a difference")). "Punishment is inflicted only when a prison official was aware of a substantial risk of serious harm . . . but was deliberately indifferent to that risk." Hare, 74 F.3d at 649.

Denial of medical care amounts to punishment when prison officials are deliberately indifferent to a pretrial detainee's serious medical needs. See Hare, 74 F.3d at 648-49; see also Norton v. Dimazana, 122 F.3d 286, 291 (5^th Cir. 1997) (citingEstelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292, 50 L.Ed.2d 251 (1976)). "Deliberate indifference encompasses only unnecessary and wanton infliction of pain repugnant to the conscience of mankind." Norton, 122 F.3d at 291. "`Subjective recklessness,' as used in the criminal law, is the appropriate test for deliberate indifference." Id. (citing Farmer, 511 U.S. 838-40, 114 S.Ct. 1980).

Therefore, "a state jail official's liability for episodic acts or omissions cannot attach unless the official had subjective knowledge of a substantial risk of serious harm to a pretrial detainee but responded with deliberate indifference to that risk." Hare, 74 F.3d at 650. Plaintiff's disagreement with the course of medical treatment he received does not state a claim for indifference to medical needs. Norton, 122 F.3d at 291 (citing Spears v. McCotter, 766 F.2d 179, 181 (5^th Cir. 1985).

Plaintiff argues that he was not properly treated for his injuries after he was attacked by fellow inmate Keoki Silby on December 3, 1999. Plaintiff admits that he was twice seen by a nurse for his injuries and that he was given pain medication. Nevertheless, plaintiff contends that after he was injured he should have been observed for longer than five minutes to ensure that he was not seriously injured and that his injuries should have been x-rayed. Plaintiff's disagreement with the course of medical treatment that he received does not state a claim for indifference to medical needs. See Norton, 122 F.3d at 291. Plaintiff has not alleged any facts that would show that an OPP "official had subjective knowledge of a substantial risk of serious harm to [him] but responded with deliberate indifference to that risk." Hare, 74 F.3d at 650. Accordingly, this claim is legally frivolous and should be dismissed.

COMMISSARY

Plaintiff also alleges that prices of items sold in the commissary are too high. Inmates do not have a constitutionally guaranteed right to purchase commissary items at low prices. See French v. Butterworth, 614 F.2d 23, 25 (1^st Cir. 1980); see also Tunnell v. Robinson, 486 F: Supp. 1265 (W.D. Pa. 1980); Owens-El v. Robinson, 442 F. Supp. 1368 (W.D. Pa. 1978); United States ex rel. Wolfish v. Levi, 439 F. Supp. 114 (S.D. N.Y. 1977), aff'd in part and rev'd in part, 573 F.2d 118 (2d Cir. 1978), rev'd on other grounds sub nom. Bell v. Wolfish, 441 U.S. 520, 99 S. Ct, 1861, 1872, 60 L. Ed. 2d 447 (1979). Accordingly, this claim should also be dismissed as frivolous.

RECOMMENDATION

It is RECOMMENDED that, except for his claim that it is improper for him to be housed with DOC inmates since he is a pre-trial detainee, plaintiff's Section 1983 claims be DISMISSED WITH PREJUDICE.

A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within ten (10) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1430 (5^th Cir. 1996) (en banc).