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Tasby v. Cain

United States District Court, M.D. Louisiana

September 12, 2017

VIDALE TASBY (#330329)
v.
N. BURL CAIN, WARDEN, ET AL.

         NOTICE

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 14 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 of the Magistrate Judge which have been accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE=S REPORT.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          ERIN WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE

         Before the Court are the Motion to Dismiss of Defendants Burl Cain, Carol Gilcrease, Matthew Gamble and Darrel Vannoy (R. Doc. 18), the Motion for Summary Judgment of the same Defendants (R. Doc. 22), Plaintiff's Motion for Entry of Judgment, which the Court interprets to be a cross-motion for summary judgment pursuant to Fed.R.Civ.P. 56 (R. Doc. 47), [1] and the Motion to Dismiss of Defendants James LeBlanc and Stephanie Lamartiniere (R. Doc. 91).

         Pro se Plaintiff, an inmate confined at the Louisiana State Penitentiary (“LSP”), Angola, Louisiana, filed this action pursuant to 42 U.S.C. § 1983 against former Warden Burl Cain, current Warden Darrel Vannoy, current or former Mental Health Directors Carol Gilcrease (originally identified as “Carol Duthu”), Ms. Peabody and Ms. Kristy Thomas (originally identified as “Ms. Kelly”), LSP psychiatrists Dr. Gamble and Dr. Reinbold, LSP social worker David Ankenbrand, and the Louisiana Department of Public Safety and Corrections (“DOC”). In his Complaint, as amended, Plaintiff asserts claims related to his long-term segregated confinement at LSP, allegedly without adequate mental health care or treatment. In his Amended Complaint, he has also asserted a claim arising under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”), and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (“RA”).[2]

         The Court will first address the parties' cross-motions for summary judgment. In this regard, pursuant to well-established legal principles, summary judgment is appropriate where there is no genuine disputed issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Rule 56, Federal Rules of Civil Procedure. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). A party moving for summary judgment must inform the Court of the basis for the motion and identify those portions of the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, that show that there is no genuine issue of material fact. Celotex Corp. v. Catrett, supra, 477 U.S. at 323. If the moving party carries its burden of proof under Rule 56, the opposing party must direct the Court's attention to specific evidence in the record that demonstrates that the non-moving party can satisfy a reasonable jury that it is entitled to a verdict in its favor. Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 248. However, whereas summary judgment is appropriate when there is no genuine disputed issue as to any material fact, and the moving party is able to show that he is entitled to judgment as a matter of law, Fed.R.Civ.P. 56, the moving party always bears the initial burden of showing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). This is done by informing the Court of the basis for the motion and identifying those portions of the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, that show that there is no genuine issue of material fact. Celotex Corp. v. Catrett, supra, 477 U.S. at 323. The nonmoving party is not required to respond to the motion until the movant has made the required showing in support thereof. Id. It is only after the movant has carried his burden of proof that the burden shifts to the non-movant to show that the entry of summary judgment is not appropriate. See Allen v. Rapides Parish School Bd., 204 F.3d 619, 621 (5th Cir. 2000). In resolving a motion for summary judgment, the Court must review the facts and inferences in the light most favorable to the non-moving party, and the Court may not evaluate the credibility of witnesses, weigh the evidence, or resolve factual disputes. International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).

         Plaintiff moves for summary judgment relying upon the pleadings, a sworn declaration provided “under penalty of perjury, ” the sworn declarations of co-inmates Noel Dean, Keith Thompson (together with copies of excerpts from inmate Thompson's prison records), Leavorda Smalley, Andrew Isadore, Adrian M. Dunn, Trivenskey Odom, Ronald Williams, Aaron Jones, Jermaine Favors, Jesse Offord, Quinnard Wilson, Corey Adams, Kerry Sanders, Jared Graham, Shawn Wickem, Joseph Trim, Wade P. Jackson and Troy McCloud, a copy of Plaintiff's Conduct Report, copies of excerpts from Plaintiff's administrative remedy and disciplinary proceedings, copies of excerpts from medical publications, legal opinions and newspaper articles, copies of indigent mail forms, a copy of Plaintiff's medical and mental health records, copies of excerpts from his criminal proceedings and post-conviction relief proceedings, including psychological evaluations undertaken in 1989 and 1993, and a copy of Plaintiff's Enemy List at LSP.

         Defendants Burl Cain, Carol Gilcrease, Matthew Gamble and Darrel Vannoy move for summary judgment relying upon the pleadings, a Statement of Undisputed Facts, a certified copy of Plaintiff's pertinent administrative remedy proceedings, certified copies of Plaintiff's Master Prison Record, Conduct Record and Location Sheet, certified copies of Plaintiff's Lockdown Review Board Decisions between April 2015 and July 2016, certified copies of Plaintiff's Shower Rosters between April 2015 and October 2016, certified copies of LSP Directive No. 10.013 (re: the “Camp J Management Program”), LSP Directive No. 10.001 (re: “Lockdown”), and DOC Regulation No. B-05-005 (re: “Administrative Remedy Procedure”), certified copies of Plaintiff's medical records between January 2014 and the present, copies of Orders of Dismissal in Bobby Joe Reickenbacker, et al. v. M.J. “Mike” Foster, Jr., et al., Civil Action No. 99-0910-RET-SCR, and the affidavits of Ass't Warden Jonathan London and Defendant Matthew Gamble.

         In his Complaint, as amended, Plaintiff alleges that he is a mentally impaired individual who has been housed in segregated confinement at LSP for more than 15 years, now almost 18 years, “with no end in sight.” Plaintiff complains that such segregated confinement, i.e., confinement in a small cell alone for 23-24 hours per day, is deleterious to his mental health and has exacerbated his mental deficiencies and caused physical complications as well. Plaintiff further complains that the conditions of his confinement at Camp J are deplorable, with constant noise and light, the danger of altercations with other inmates, the potential for excessive force by security officers, and exposure to unsanitary conditions. Plaintiff also complains of the use of punitive-style suicide watch cells at LSP that are filthy and uncomfortable. As a result of Plaintiff's segregated confinement, he has allegedly suffered a loss of familial relationships because he has been restricted to non-contact visits and has had to communicate with family members through a wire mesh. In addition, Plaintiff contends that the mental health care system at LSP is grossly inadequate and amounts to cruel and unusual punishment under the Eighth Amendment to the United States Constitution. According to Plaintiff, the alleged inadequacies constitute deliberate indifference to his serious medical needs and to the serious medical needs of other inmates, including the afore-mentioned long-term segregated confinement, a failure to provide one-on-one counseling, group therapy, or rehabilitation programs to mental health prisoners, inadequate mental health staffing at Camp J at LSP, the use of untrained co-inmates as “nurses' aids, ” the absence of an “urgent medical care system, ” and the failure of prison officials to abide by a consent decree settlement agreement reached between the Government and Defendants in 2005 in Reickenbacker v. Foster, supra. Plaintiff further alleges that he was sexually abused by an LSP social worker assigned to Camp J, Gary Midkiff, that Defendants Dr. Reinbold and Gamble have responded to his reports of suicidal thoughts with comments that he should just kill himself, that he has been retaliated against for participating in the referenced civil action and for seeking mental health treatment, and that he and other inmates have been discriminated against because of their race. Finally, Plaintiff asserts that he has been discriminated against and denied services solely by reason of his mental disability in violation of the ADA and RA.

         In response to Plaintiff's allegations, the moving Defendants first assert that Plaintiff lacks standing to assert the rights of other inmates confined at LSP. Defendants are correct in this regard. Specifically, although Plaintiff includes allegations regarding deprivations that have allegedly been suffered by other inmates at LSP, the law is clear that a pro se litigant does not have standing in this Court to assert the civil rights of third parties injured by the alleged unlawful conduct of prison personnel. See Frost v. McFerrin, 2014 WL 992803, *2 (W.D. La. Mar. 13, 2014), citing Coon v. Ledbetter, 780 F.2d 1158, 1160 (5th Cir. 1986). Accordingly, Plaintiff's claims asserted on behalf of persons other than himself are subject to dismissal for this reason.

         Defendants also assert that certain of Plaintiff's claims are barred by application of the one-year limitations period applicable to claims asserted in Louisiana under § 1983. In this regard, inasmuch as there is no federal statute of limitations for claims brought pursuant to 42 U.S.C. § 1983, a federal court must borrow the forum state's general personal injury limitations period for such claims. Owens v. Okure, 488 U.S. 235, 249-50 (1989). In Louisiana, the applicable period of limitations is one year. La. Civ. Code Art. 3492. Moreover, under federal law, a cause of action under 42 U.S.C. § 1983 accrues “when the aggrieved party has either knowledge of the violation or notice of facts which, in the exercise of due diligence, would have led to actual knowledge thereof.” Piotrowski v. City of Houston, 51 F.3d 512, 516 (5th Cir. 1995). A plaintiff need not realize that a legal cause of action exists but must only have knowledge of the facts that support a claim. Id. Accordingly, inasmuch as Plaintiff has admittedly long been in possession of all pertinent information relative to the claims asserted herein, including specifically his claims relative to his long-term confinement in segregated housing at LSP, it is clear that his claims relative to events occurring more than a year prior to the institution of this civil action (taking into account the additional time during which his administrative remedy proceedings were pending[3]) are prescribed. Thus, considering that Plaintiff signed his original federal Complaint herein on May 6, 2016, [4] and taking into account the 74 days that Plaintiff's administrative remedy proceedings were pending, see R. Doc. 22-3 at p. 2, all of Plaintiff's claims relative to events preceding February 21, 2015 are time-barred.[5]

         Turning to a consideration of Plaintiff's claims arising within the applicable time period, Defendants next contend that certain of Plaintiff's claims are subject to dismissal because Plaintiff has failed to exhaust available administrative remedies relative thereto as mandated by 42 U.S.C. § 1997e. Pursuant to this statute, Plaintiff was required to exhaust administrative remedies available to him at the prison prior to commencing a civil action in this Court with respect to prison conditions. This provision is mandatory and applies broadly to “all inmate suits about prison life.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Further, a prisoner must exhaust administrative remedies by complying with applicable prison grievance procedures before filing a suit relative to prison conditions. Johnson v. Johnson, 385 F.3d 503, 517 (5th Cir. 2004). Not only must the prisoner exhaust all available remedies, but such exhaustion must be proper, including compliance with an agency's deadlines and other critical procedural rules. Woodford v. Ngo, 548 U.S. 81, 90 (2006). One of the principal purposes of the administrative exhaustion requirement is to provide fair notice to prison officials of an inmate's specific complaints so as to provide “‘time and opportunity to address complaints internally.'” Johnson v. Johnson, supra, 385 F.3d at 516, quoting Porter v. Nussle, supra, 534 U.S. at 525. Further, the degree of specificity necessary in a prisoner's grievance should be evaluated in light of this intended purpose. Id.

         Upon a review of Plaintiff's pertinent administrative grievance No. LSP-2015-0527, i.e., the grievance that he identified as having been filed relative to the claims asserted in this proceeding, the Court concludes that Defendants' assertion is well-taken in this regard in certain respects. Specifically, in Plaintiff's grievance dated February 23, 2015, Plaintiff complained of the alleged violation of his Eighth Amendment constitutional rights as a result of his long-term confinement in segregated housing at LSP without adequate mental health care. Plaintiff complained that long-term segregated confinement has had a deleterious effect upon his mental health and upon the mental health of other inmates confined at LSP, that there has been inadequate mental health staffing in his housing unit, that he has not been provided with one-on-one counseling or group therapy, that he has been denied rehabilitative programs by mental health staff, that there are no preventive policies in place to reduce the threat of the use of chemical agents on mental health inmates, [6] and that his familial relationships have been damaged because he has not been allowed to have contact visits. Plaintiff further asserted that these deficiencies have followed from the failure of prison officials to adequately comply with obligations incurred as a result of the 2005 settlement of the class action lawsuit in which Plaintiff was a named co-plaintiff, Reickenbacker v. Foster, supra. At the conclusion of Plaintiff's grievance, he summarized his claim by stating that the “foundation” thereof was “based on [the] longterm solitary confinement of the mentall[y] ill (severe)” at LSP in violation of the Eighth Amendment and 42 U.S.C. § 1983. See R. Doc. 22-3 at p. 8. Plaintiff included two additional assertions in the referenced grievance, specifically (1) that Dr. William Reinbold had exhibited deliberate indifference to Plaintiff's serious medical needs on an unstated date by encouraging Plaintiff to “just die” when Plaintiff complained of suicidal thoughts, and (2) that he had been retaliated against for seeking mental health treatment. Plaintiff provided only one example of such retaliation, however, i.e., that when his aunt wrote to prison officials to express concern about Plaintiff's well-being in late 2014, Plaintiff's prescription for the medication Wellbutrin was subsequently decreased without warning or justification from 200mg to 150 mg.

         Based on the foregoing recitation of complaints, the Court finds that Plaintiff has adequately presented, and therefore successfully exhausted, the following claims specifically included in Plaintiff's grievance. These claims may be summarized as including (1) that he has been subjected to long-term segregated confinement without adequate mental health treatment, (2) that the terms and provisions of the class action settlement agreement reached in Reickenbacker v. Foster, supra, have not been complied with, (3) that he has been retaliated against for requesting or complaining about his medical care, and (4) that his familial relationships have been damaged because he has been denied contact visitation.[7] However, in the referenced grievance, there is no mention whatever of any purported discrimination against Plaintiff based upon his race as is asserted in Plaintiff's Complaint. Nor is there any reference in the grievance to any purported retaliation for Plaintiff's exercise of his First Amendment rights by participating as a co-plaintiff in the referenced class action lawsuit. Nor is there any reference to alleged unconstitutional conditions of confinement in his housing unit, either with regard to generally unsanitary conditions, to excessive noise or lighting, to a generalized danger of harm from co-inmates and security officers, or with regard to the use of suicide watch cells. Nor is there any assertion that Defendant Dr. Gamble has personally been deliberately indifferent to Plaintiff's serious medical needs by encouraging Plaintiff to commit suicide.[8] Finally, Plaintiff makes no reference in his grievance to the statutory provisions of the ADA or RA nor asserts that he is seeking to obtain any of the benefits provided under these statutes. As such, Plaintiff has failed to adequately assert these claims in connection with the referenced grievance. Consequently, the Court concludes that Plaintiff's grievance failed to provide sufficient notice to prison administrators that Plaintiff was attempting to assert such claims so as to “provide administrators with a fair opportunity under the circumstances to address the problem” now presented before this Court. See Johnson v. Johnson, supra, 385 F.3d at 517. Accordingly, Plaintiff's claims regarding racial discrimination, retaliation for participation in the class action lawsuit, unconstitutional conditions of confinement, the use of suicide watch cells, deliberate indifference on the part of Defendant Gamble, and claims asserted under the ADA and RA in this proceeding are subject to dismissal for failure to exhaust administrative remedies relative thereto pursuant to 42 U.S.C. § 1997e. See, e.g., Riley v. Kazmierczak, 497 Fed.Appx. 442, 443 (5th Cir. 2012) (dismissing ADA claims asserted by a prisoner because of a failure to exhaust administrative remedies).

         In addition to the foregoing, Plaintiff has included in his later filings references to events that have occurred subsequent to the filing of the original Complaint in this case. Specifically, Plaintiff has referred to an incident in August 2016 when he was involved in a physical confrontation with Defendant Dr. Gamble and security officers that apparently resulted in Plaintiff suffering a fractured bone in his hand and in the imposition of disciplinary charges against Plaintiff. See R. Doc. 46 at pp. 10-15. In addition, Plaintiff has included references to incidents occurring in December 2016. However, inasmuch as the law requires that an inmate complainant present and exhaust administrative remedies before asserting a claim relative thereto in federal court, see Trevino v. Sanders, 202 F.3d 265 (5th Cir. 1999), it is clear that his claims relative to these incidents were ...


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