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Hmeid v. Nelson Coleman Correctional Center

United States District Court, E.D. Louisiana

August 15, 2018

BASHIR IBRAHIM HMEID
v.
NELSON COLEMAN CORRECTIONAL CENTER ET AL.

         SECTION “J” (2)

          REPORT AND RECOMMENDATION

          JOSEPH C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Bashir Ibrahim Hmeid, is a prisoner currently incarcerated in the Tensas Parish Detention Center (“Tensas”) in Waterproof, Louisiana. He filed this complaint pro se and in forma pauperis pursuant to 42 U.S.C. § 1983 against the Nelson Coleman Correctional Center (“Coleman”), Deputy Charles Floyd, Deputy David Bailey, Lieutenant Rocco Dominic and Sergeant Darryl Richardson.

         Hmeid asserts six claims: (1) While incarcerated in Coleman on August 17, 2017, Deputies Floyd and Bailey, Lieutenant Dominic and Sergeant Richardson used excessive force against him when they tased and beat him during a strip search. (2) He did not receive adequate medical care for a wrist injury that existed before he was incarcerated or for the injuries he suffered on August 17, 2017. (3) There is a lack of privacy in the Coleman bathroom and shower areas, and the food and the jail are cold. (4) Jail officials tampered with his mail. (5) Coleman inmates do not receive adequate recreation time. (6) State Department of Corrections (“DOC”) and parish inmates should not be housed together because parish inmates are disruptive. Hmeid originally sought transfer from Coleman, but he has been transferred to Tensas since filing his complaint. Record Doc. No. 4 (Complaint at ¶ V).

         On May 22, 2018, I conducted a telephone conference in this matter. Participating were plaintiff pro se and Steven Mauterer, counsel for defendants. Plaintiff was sworn and testified for all purposes permitted by Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), and its progeny. After the Spears hearing and pursuant to my order, defense counsel submitted to me the videotape of the subject tasing incident and the incident report that plaintiff referred to during his testimony, and I have reviewed them in connection with this report. Record Doc. Nos. 16, 18-20.

         THE RECORD

         I. PLAINTIFF'S TESTIMONY

         Plaintiff testified that he is currently incarcerated in Tensas based upon a conviction on June 15, 2017, for simple burglary, for which he is serving a six-year prison sentence. He stated that his release date is February 10, 2023. He confirmed that his claims in this case are based principally on an incident that occurred while he was incarcerated in Coleman on August 17, 2017. Hmeid testified that he was transferred from the Jefferson Parish jail to Coleman on June 22, 2017, and that he remained there until April 2018.

         Hmeid confirmed that he asserts several claims in the instant case. First, he testified that on August 17, 2017, he was tasered and beaten while handcuffed in the shower. Plaintiff stated that on that date he was in his bed for the 11:00 p.m. lockdown, and about 10 minutes into the lockdown Deputies Bailey and Floyd instructed him and his cellmate to go downstairs to the shower area to be strip searched. Hmeid testified that he took his clothes off, and “whatever the officer ordered or asked me to do, I did it.” He stated that he opened his mouth, and he squatted and coughed. Plaintiff testified that the officers told him that he had to bend at the waist, spread his buttocks and cough. In response, Hmeid said, “I've never heard of that. I know DOC regulations.” He stated that he refused to bend at the waist because it was a violation of his privacy rights. Plaintiff testified that the guards told him it was their procedure, and that he would go to lockdown if he did not comply.

         Hmeid testified that about 10 officers surrounded him and told him that he would go to segregation lockdown if he did not bend at the waist and spread his buttocks. Plaintiff testified that he felt humiliated because the guards were looking at him and making gestures and comments. He stated that Sergeant Richardson and Lieutenant Dominic pulled out their tasers and pointed them at his forehead while saying, “You're going to follow procedure.” Hmeid asserted that the second time the tasers were pointed at him, he got scared and complied with the order to bend at the waist and spread his buttocks. Plaintiff testified that the officers yelled out, “He didn't do it right, ” and then tasered, beat and kicked him. “They got on top of me, and I started screaming.”

         Hmeid testified that after he was tased and taken to the ground, he was handcuffed behind his back. Plaintiff testified that he stopped resisting after he was handcuffed, but that there were officers on top of him who continued to kick and beat him for 10 to 15 minutes. He stated that he was not tasered again after he was handcuffed, but that his shoulders and knees were bleeding. Plaintiff testified that he was kicked and punched after he was handcuffed, but he did not know who was beating him because he was on his stomach and it was difficult to turn around. Hmeid identified Deputy Bailey, Sergeant Richardson, Lieutenant Dominic and Deputy Floyd as the officers who were present during this incident. Hmeid asserted that the video surveillance footage from the dorm could verify what happened, and that other inmates housed in his dorm heard but did not see the incident.

         Hmeid testified that after the incident his head was bruised, he had a major headache, his arm was twisted, the handcuffs were tightened around his wrist and both of his shoulders and knees were bleeding. He stated that he was taken to the infirmary, where Sergeant Richardson took pictures of his injuries. Plaintiff testified that he reviewed his medical records that I ordered defendants to produce, Record Doc. Nos. 5, 17, and they are accurate. He noted that the records were missing the video of the incident and the photographs taken in the infirmary after the incident. Defense counsel confirmed that he had the video, photographs and an incident report in his possession, copies of which he would send to the court for review.

         Hmeid testified that the only people who saw the incident were the guards and a fellow inmate who was also in the shower area during the strip search. He asserted that other inmates heard the incident from the second-story of the cell block, including Justin Robicheaux, David Lee and Howard Burl. Plaintiff stated that the dorm was small, housing only about 20 inmates, and other inmates heard what was happening but were not allowed to look down from the balcony to see into the shower area below.

         Plaintiff testified that Coleman's policy that inmates bend at the waist and spread their buttocks during strip searches violated his privacy rights. He stated that he was sent to lockdown five to 10 times for disciplinary reasons after the incident, and that each time he went to lockdown he was strip searched. Hmeid testified that he felt this policy “was just unnecessary.”

         Hmeid affirmed that, in addition to his claims concerning the strip search and tasing incident, he also asserted claims concerning his conditions of confinement at Coleman. Hmeid testified that the food at Coleman was left on carts in the hallways for hours. “If you don't eat, they don't care. They'll just take it, put it back in the kitchen and say they fed you.” Hmeid stated that the cold temperature in the jail resulted in him “staying sick” and frequently having colds.

         Hmeid complained that the lack of walls between the urinals, the toilets, the shower area and the rest of the dorm was a privacy violation because “it's disrespectful and fights escalate from that.” He stated that the guards stare at the inmates from a glass observation “pod” while they shower and use the restroom. Plaintiff confirmed that his complaint is that the guards can see him while he is engaged in these activities, which are supposed to be private.

         Plaintiff testified that he did not receive medical attention for problems with his arm, elbow, wrist and hand, which had all been operated on before his incarceration at Coleman. Hmeid stated that he experienced pain “when it's cold inside the dorm, due to the screws in my arm and the plate in my hand.” Plaintiff stated that the doctor gave him only Tylenol for the pain associated with his previous injuries and surgeries. He testified that he saw a doctor or nurse at Coleman every couple of weeks to address these problems.

         Hmeid also testified that he did not receive adequate medical care in September 2017, after the tasing incident, when he complained of pain in his side and that “he couldn't even get up out of the bed.” He confirmed that he saw a doctor about pain in his side on September 19, 2017, and that his related urinalysis test produced negative findings.

         Plaintiff testified that prison officials tampered with his mail. He stated that some of his legal papers, including documents related to the instant lawsuit and others related to his criminal case, were missing after he came out of lockdown. “I filed a complaint, and finally they put it all in a manilla envelope and some of it was just missing. There was paperwork that I needed that I couldn't ever find.” Plaintiff testified, however, that this did not cause any problems with the court and that his legal proceedings were not disrupted. He stated that he was represented by an attorney in his state court criminal case. Hmeid testified that he did not find the paperwork he needed to file for post-conviction relief, and he is unsure whether his attorney filed a post-conviction application.

         Hmeid also complained that inmates at Coleman were taken outside for recreation only once or twice a week for 30 to 35 minutes. He stated that he would “just walk around” when he went outside. He asserted that the DOC mandates that inmates are entitled to at least 45 minutes of recreation once every day.

         Finally, plaintiff testified that Coleman housed parish inmates and DOC inmates in the same dorms, and he complained that this structure led to fights. He testified that “people come off the streets, [] a guy that's never been in jail a day in his life, and they put him right there in the same dorm as me and he does a lot of violating.” Hmeid stated that he got into a verbal argument with a parish inmate who stole his cup, but he testified that the argument did not escalate into a physical altercation. Plaintiff asserted that parish inmates and DOC inmates should not be housed together.

         On cross-examination, Hmeid confirmed that the officers asked him not to squat but to bend. When asked whether he complied when the officers asked him multiple times to bend at the waist, Hmeid testified that he did not comply at first but that he did when he became scared. “They threatened me to make me bend over by the waist, so I had to follow procedures because I ain't had no choice.” He stated that he failed to bend at the waist multiple times until he got aggravated when he felt that the officers' requests became “a joke.”

         Hmeid again confirmed that his medical records are accurate, but he complained that the missing photos and video of the incident should be included. When asked whether he had any taser prong injuries, Hmeid said, “I don't know. I was in shock. I was hurting physically and mentally. I was hit with a tase[r] and beaten, that's all I remember.” Plaintiff defined the feeling of being “tased” as shaking and shivering, and he said, “I felt like I was about to die.” He testified that he saw red dots from the taser on his body, and that “some type of string and some type of metal thing” came out of the taser gun, hit him and was “pulled out fast.” He stated that he then fell to the floor, where he was laying on his stomach with his arms behind his back. He testified that he did not remember where the taser hit him. Plaintiff further testified that he momentarily lost consciousness and was dragged out of the dorm after the incident.

         II. VIDEO AND INCIDENT REPORT

         Upon plaintiff's request and in compliance with my order, defendants submitted a video of the August 17, 2017 incident to me for in camera review. The post-incident photographs referred to by Hmeid in his testimony were contained in the same compact disc as the video. Record Doc. No. 20. The video of Hmeid's strip search, which has no sound, begins after midnight at 00:25:00. The time stamp is in the upper right-hand corner of the video. A wide-angle view of the two-level dorm shows some prisoners in their beds on the second level while others, including Hmeid, are strip searched below in the shower area. Hmeid is in the front of the shower on the far right. He undresses, raises his arms, turns to face the shower wall, squats twice then turns to face the officer behind him and shrugs his shoulders. Hmeid continues to gesture emphatically, and he seems to be arguing with the officer in front of him and other officers just outside of the shower area. At 00:28:37 two officers approach the shower where Hmeid, another inmate and two officers are standing. Again, Hmeid raises his arms, turns around and squats multiple times (00:29:40). One of the four officers points a taser at Hmeid's left shoulder (00:31:11), Hmeid moves to the right wall of the shower, he falls or is taken to the floor and is then surrounded by five officers (00:31:46). At this point in the video, Hmeid is no longer visible, except for occasional flashes of his feet.

         At about 00:33:30, the video shows that guards stand him up, and two guards escort him out of the dorm, down multiple hallways to a solitary cell. Red marks are visible on Hmeid's right shoulder, but Hmeid is talking, walking, and standing without issue when an officer enters his solitary cell. This portion of the video has sound. An officer attempts to get Hmeid to perform a proper strip search (1:00:30). Hmeid continues to squat instead of bending at the waist, as instructed. The officer takes Hmeid's mattress as he leaves, and the video concludes with Hmeid walking toward his bunk.

         Defendants also submitted (1) a “St. Charles Correctional Center Incident Report” from August 17, 2017 at 3:15 a.m., which was written by Deputy Bailey; (2) two “Use of Force/Discharge of Firearm” reports from August 17, 2017 at 12:31 a.m., one signed by Lieutenant Dominic and another signed by Deputy Bailey; and (3) two Axon taser information reports on taser devices carried by Lieutenant Dominic and Sergeant Richardson.

         In the incident report, Deputy Bailey states that Deputy Floyd conducted Hmeid's strip search at around 12:27 a.m. Deputy Bailey writes that Hmeid refused to comply with Deputy Floyd's instructions - despite Deputy Floyd's warnings that Hmeid would be sent to disciplinary segregation if he did not comply - and at 12:29 a.m., Sergeant Richardson stepped in and gave Hmeid verbal commands that Hmeid continued not to follow. The incident report indicates that Sergeant Richardson pulled out his department-issued taser at 12:31 a.m., in an effort to induce Hmeid's compliance, but that none of the officers involved in the incident actually used their tasers on Hmeid. Deputy Bailey states that he and Lieutenant Dominic placed Hmeid in a prone position to be handcuffed, and that Hmeid resisted while being handcuffed. Lieutenant Dominic's and Deputy Bailey's reported explanation for Hmeid's injuries is that he slipped on the water-resistant floor in the shower area, which led to abrasions on his right shoulder, left index finger and both knees.

         ANALYSIS

         I. STANDARDS OF REVIEW

         A prisoner's pro se complaint for alleged civil rights violations must be screened by the court as soon as practicable after docketing, regardless of whether it has also been filed in forma pauperis. 28 U.S.C. § 1915A(a); Thompson v. Hicks, 213 Fed.Appx. 939, 942 (11th Cir. 2007); Lewis v. Estes, 242 F.3d 375, 2000 WL 1673382, at *1 (8th Cir. 2006); Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004); Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998); Lewis v. Sec'y, DOC, No. 2:10-CV-547-FTM-29, 2013 WL 5288989, at *2 (M.D. Fla. Sept. 19, 2013), aff'd, 589 Fed.Appx. 950 (11th Cir. 2014). After review in the screening process, the court must “identify cognizable claims or dismiss the complaint” if it or portions of it are frivolous or fail to state a claim upon which relief can be granted. 28 U.S.C. § 1915A(b)(1); Lewis, 589 Fed.Appx. at 952; Thompson, 213 Fed.Appx. at 942; Shakur, 391 F.3d at 113; Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999).

         “A federal court may dismiss a claim in forma pauperis ‘if satisfied that the action is frivolous or malicious.'” Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994) (quoting former 28 U.S.C. § 1915(d), now incorporated in 28 U.S.C. § 1915(e), as amended). A complaint is frivolous “if it lacks an arguable basis in law or fact.” Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998); Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994). The law “‘accords judges 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.'” Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).

         The purpose of a Spears hearing is to dig beneath the conclusional allegations of a pro se complaint, to ascertain exactly what the prisoner alleges occurred and the legal basis of the claims. Spears, 766 F.2d at 180. “[T]he Spears procedure affords the plaintiff an opportunity to verbalize his complaints, in a manner of communication more comfortable to many prisoners.” Davis, 157 F.3d at 1005. The information elicited at such an evidentiary hearing is in the nature of an amended complaint or a more definite statement under Fed.R.Civ.P. 12(e). Wilson v. Barrientos, 926 F.2d 480, 481 (5th Cir. 1991); Adams v. Hansen, 906 F.2d 192, 194 (5th Cir. 1990). “Upon development of the actual nature of the complaint, it may also appear that no justiciable basis for a federal claim exists.” Spears, 766 F.2d at 182.

         The court may make only limited credibility determinations in a Spears hearing, Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997) (citing Cay v. Estelle, 789 F.2d 318, 326-27 (5th Cir. 1986), overruled on other grounds by Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728 (1992)), and may consider and rely upon additional evidence, as long as it is properly identified, authentic and reliable. “The Court should allow proper cross-examination and should require that the parties properly identify and authenticate documents.” Id. (citing Wilson, 926 F.2d at 482-83; Williams v. Luna, 909 F.2d 121, 124 (5th Cir. 1990)).

         After a Spears hearing, the complaint may be dismissed, in whole or in part, as legally frivolous if it lacks an arguable basis in law, Jackson v. Vannoy, 49 F.3d 175, 176-77 (5th Cir. 1995); Moore v. Mabus, 976 F.2d 268, 269 (5th Cir. 1992), or “as factually frivolous only if the facts alleged are ‘clearly baseless,' . . . [or] when the facts alleged rise to the level of the irrational or wholly incredible.” Id. at 270.

         “‘A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist.'” Davis, 157 F.3d at 1005 (quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997)). “When a complaint raises an arguable question of law which the district court ultimately finds is correctly resolved against the plaintiff, dismissal under Rule 12(b)(6) is appropriate; however, dismissal under the section 1915(d) standard is not.” Moore, 976 F.2d at 269. A prisoner's in forma pauperis complaint which fails to state a claim may be dismissed sua sponte at any time under 28 U.S.C. § 1915(e)(2) and 42 U.S.C. § 1997e(c)(1).

         In this case, plaintiff's medical care, conditions of confinement, mail tampering, recreation and housing classification claims against defendants must be dismissed under 28 U.S.C. § 1915(e) and 42 U.S.C. § 1997e(c)(1), either as frivolous, because his claims lack an arguable basis in law, or under Rule 12(b)(6) in light of his testimony explaining the factual basis of his claims. However, his complaint against the individual defendants, as amended by his testimony at the Spears hearing and construed broadly, [1] requires further proceedings and should not be dismissed at the screening stage.

         II. EX ...


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