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Bitner v. Weber

United States District Court, E.D. Louisiana

January 23, 2015

C. WEBER, ET AL., Section


KAREN WELLS ROBY, Magistrate Judge.

Before the Court is a Motion for Summary Judgment (R. Doc. 15) filed by the plaintiff, which along with this matter was referred to a United States Magistrate Judge to conduct a hearing, including an evidentiary hearing, if necessary, and to submit proposed findings and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), § 1915e(2), and § 1915A, and as applicable, 42 U.S.C. § 1997e(c)(1) and (2). A Spears Hearing took place on October 7, 2014 with Kelly Bitner participating by telephone. Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing.

I. Factual Background

The plaintiff, Kelly Eugene Bitner ("Bitner") is currently being held at the Concordia Parish Work Release in Vidalia, Louisiana. He filed this pro se and in forma pauperis complaint pursuant to 42 U.S.C. § 1983 against the defendants, Sheriff C. Weber, Major Brinkley, Captain Zeringue, Lt. Leclair, Sergeant Naquin and the Lafourche Parish Sheriff's Department.

Bitner alleges that the administrators of the LaFourche Sheriffs Work Program (LSWP) harassed and retaliated against him for filing a complaint against them. He alleges that the LSWP has a contract with the Louisiana Department of Public Safety and Corrections to house and employ state prisoners who qualify for work release status. On July 17, 2013, Bitner alleges that he violated the conditions of his parole and as an alternative to revocation he was given a six month term at the work release program. He alleges that he began his term on August 5, 2013 and on October 17, 2013 he was forced under threat of return to prison to accept a job that required him to work seven twelve-hour shifts in one week with no overtime pay.

Bitner made verbal complaints to both Captain Zeringue and Lt. Leclair to no avail. He thereafter alleges that he filed a formal administrative complaint using the defendants' grievance system. Lt. Leclair responded stating that his complaint was frivolous and if this type of abuse of the system continued, he could be removed from the work release program. On December 3, 2013 Bitner field a complaint with the United States Department of Labor complaining that he was not compensated for overtime work.

On December 29, 2013, Bitner was informed by the defendants that he was to begin a new job with K & W Leasing at Bollinger Shipyard where upon his arrival he was informed that he would be required to wear a respirator at all times. Bitner alleges that he thereafter advised the safety supervisor, Mr. Carl Guidry that he had chronic lung problems which would prevent him from wearing a respirator. He alleges that the defendants who assigned him to K & W knew he had these medical issues but assigned him anyway.

On January 3, 2014, Bitner contends that he was issued a formal misconduct notice by Sgt. Naquin because he10 was terminated for failure to wear safety equipment, namely a respirator. Bitner alleges that according to Naquin, this was the second instance in which he was terminated for not wearing his safety equipment. However, Bitner contends that he was never terminated from the previous job for failure to wear safety equipment as alleged. As a result of the misconduct report, Bitner contends that he received notice from Captain Zeringue that he was removed from the program and returned to prison. He complains that the defendants were aware that if he was removed from the program his parole would be revoked and he would serve the remainder of his sentence in prison. He seeks to hold the defendants responsible in their individual and official capacities. He therefore seeks compensation for his loss of liberty, court costs and punitive damages.

A. Spears Hearing

On October 7, 2014, Bitner participated in a Spears hearing. He testified that he was on parole but he violated it. On August 5, 2013, rather than being returned to prison for violating his parole, he was allowed to attempt a six month turn around by participating in a work release program at LaFourche Parish Work Release Program. If he completed the program, he would have been allowed to return to his status of parole and given back his freedom. At LaFourche Parish Work Release Program, Bitner was allowed to work for wages. There were, according to Bitner, twenty prisoners who were strong armed into working a job at LaFourche Sugars which required them to work seven twelve hour shifts with no overtime pay.

He testified that at the same time, the regular employees of the company were allowed to make overtime pay. Bitner testified that he complained to Major Brinkley, Captain Zeringue and Lieutenant LeClair. Bitner testified that he filed a complaint about the no overtime rule, Lieutenant LeClair responded indicating that his complaint was frivolous and that he would be removed from the program if he continued to complain. During the Spears hearing Bitner also testified that he was required to clock in and he testified that he has pay stubs to support his position.

He testified that on December 3, 2013, he filed a complaint with the U.S. Department of Labor which was denied because his place of employment was a farm production facility. The Department of Labor told him that it would not intervene. Bitner testified that he understood the exemption for farmers but did not understand why their employees could actually be paid overtime.

He testified that he last worked for the sugar company on December 25, 2013 because the job ended. He thereafter worked for Bollinger Shipyard, a company he had previously worked for. He further testified that he suffers with chronic lung disease which causes him to let out oxygen but not take it in. Bitner testified that he met with the Bollinger supervisor who indicated that given his skills he would be placed in a section where he did not need a respirator. He thereafter was assigned to the deck of the boat which eliminated the need for the respirator.

After the third day, he returned from work and was told that he needed to submit to a urine sample, which he did. He testified that he was terminated for failure to wear the respirator and it was the second time that he failed to do so, which Bitner disputes. Bitner testified that Bollinger never told him that he was terminated and in fact, he learned that even Bollinger did not know what happened to him. He testified that he was handcuffed and sent back to the jail ...

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