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Smith v. Tanner

United States District Court, E.D. Louisiana

November 5, 2018

DONALD RAY SMITH
v.
ROBERT TANNER ET AL.

         SECTION “M” (2)

          REPORT AND RECOMMENDATION; ORDER AND REASONS ON MOTION

          JOSEPH C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Donald Ray Smith, is a prisoner currently incarcerated in the Rayburn Correctional Center (“Rayburn”) in Angie, Louisiana. He filed this complaint pro se and in forma pauperis pursuant to 42 U.S.C. § 1983 against Rayburn's Head Warden, Robert Tanner; Rayburn's medical and security staff; Hunt Correctional Center's (“Hunt”) medical staff and the Louisiana Department of Public Safety and Corrections (“DOC”). Smith asserts four claims: (1) Rayburn personnel injured him when responding to his seizure on March 9, 2017. (2) He received inadequate medical care for the injuries he suffered in the incident on March 9, 2017. (3) He is frequently issued false disciplinary rule violation reports and remains in extended lockdown as a result. (4) His cell is too small, the food is inedible, the air is fetid, hygiene is lacking and he is deprived of a mattress.

         He seeks $250 million in punitive damages for pain, suffering and humiliation; an order requiring “the Louisiana Department of Public Safety and Corrections to provide proper medical care for his broken neck, fractured skull, epilepsy, and stroke”; additional epilepsy-focused training for the medical and security staffs at Rayburn and Hunt; an order releasing him from lockdown; and physical therapy. Record Doc. No. 4 (Complaint at ¶ V).

         On July 17, 2018, I conducted a telephone conference in this matter. Participating were plaintiff pro se and Angela O'Brien, 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.

         THE RECORD

         Plaintiff testified that he is currently incarcerated in Rayburn based upon a conviction on January 13, 2014, for failure to register as a sex-offender, for which he is serving an 18-year prison sentence. He stated that his release date is February 10, 2023. He confirmed that his claims in this case are based on an incident that occurred while he was incarcerated in Rayburn on March 9, 2017.

         Smith confirmed that he asserts four claims. First, plaintiff alleged that he was injured by prison staff on March 9, 2017. He testified that on that day, while he was in his dorm at Rayburn, he “felt a seizure coming on.” Smith stated that his last epileptic seizure was about 10 years ago, and he attributed his history of seizures to drug use, although he stated that he has not been convicted of any drug-related crimes.

         Plaintiff testified that he received a copy of his medical records, and that they are “mostly accurate.” He disputed that the incident on March 9, 2017 occurred at 7:40 p.m. Smith asserted that the incident actually happened around 3:12 p.m., and he based that time on the rule violation report that was issued after the incident. Smith confirmed that his basic claim concerning his injuries is that he was misdiagnosed at the Rayburn infirmary as being intoxicated when in fact he had what he believes was an epileptic seizure.

         Plaintiff stated that he knows “how to control his seizures, by laying down in a cool place, ” which is why he was in his bed on March 9, 2017. Smith confirmed that his medical records show that he hit the floor after he passed out in his bed. He testified that his dorm-mates told him that he was not properly stabilized after he fell from his bed. Plaintiff stated that he does not remember being taken out of the dorm, and he does not remember being in the infirmary at all. He asserted that at some point a nurse asked him where he was hurting, and he responded his head and neck hurt, then he passed out. Smith confirmed the accuracy of a note in his medical records showing that nurse Josh Goff saw him in the infirmary, and he testified that nurse Goff misdiagnosed him as being drunk. Plaintiff stated he did not know whether he was purposefully misdiagnosed. He stated that “they really didn't follow the proper procedure in going through the whole ordeal with a drug test . . . and checking my background with my medical records to see my conditions.” Smith testified that the next thing he remembers is getting up to use the restroom while in lockdown in the early morning hours of March 10, 2017. Plaintiff stated that he tried to turn around, fell back, hit the floor, called for help and a nurse told him that his neck was broken. Smith testified that the nurse told him that he did not have a neck brace. Plaintiff confirmed the accuracy of his medical records, which show that about 12 hours passed between the incident and his transfer to Our Lady of the Angels Hospital at 3:40 a.m. on March 10, 2017.

         Smith read aloud Lieutenant James Seal's disciplinary write-up from March 9, 2017, concerning Smith's incident. The write-up states,

Offender Donald Smith, DOC #429663, Date of Incident: 3/9/2017, approximately 3:12p.m. Place of Incident: Wind 2. Job Assignment: Field Crew 11. Housing assignment: Wind 2. Rule Violation: Intoxication, Rule #14.
On the above date and time, I responded to a beeper in Wind 2. Upon arrival to bed 54 in Wind 2, I observed offender Donald Smith lying on the floor. Offender Smith had a scrape on top of his head. Offender Smith was unresponsive at the time. Medical was notified and responded to the area. When offender Smith started to speak, and started responding to questions, he only complained about his head hurting. Offender Smith's speech was slurred and he could not stand without assistance. Offender Smith was transported to the infirmary by wheelchair. Offender Smith vomited once in the infirmary. Major Williams recorded offender Smith's actions in the infirmary using the body camera. Offender Smith slurred his speech while answering questions and said he was high. Offender Smith would not say what he took or smoked to get high. Per nurse Josh Goff, offender Smith does not take any medication that would cause him to appear to be intoxicated. Offender Smith was treated for the minor scrape on top of his head. A picture of the scrape was taken and uploaded in the investigation database. . . .
While observing the video [of Wind 2], I observed that offender Smith was lying on his bed, and started to get out and fell on the floor at 15:12:35. . . .
Offender Smith was placed on administrative segregation and Major Williams was notified.

         Smith testified that a doctor from Oschner Hospital in New Orleans diagnosed him with a stroke and a cervical fracture, for which he was given a cervical collar. Plaintiff stated that he was transferred from Oschner Hospital back to Rayburn, and he was sent to University Medical Center in New Orleans the next day. He stated that he was also brought to Hunt in St. Gabriel, Louisiana. Smith testified that he spent seven days in these various facilities.

         When asked whether he agrees that his medical records show that his fall and cervical fracture were the result of a stroke, Smith testified that he believes that a seizure caused his fall, the fracture and a stroke. “I really had a seizure, ” he said, “that's what the doctors told me.” Plaintiff stated, however, that he also had a stroke. He stated that his other injuries happened after his seizure and fall. Plaintiff said, “I was not stabilized in the proper manner like I was supposed to be while I was unresponsive. My fellow inmates told me [the staff] shoved me in a wheelchair.” Smith asserted that the staff “should have gotten a gurney, a backboard and a neck brace just in case anything was to happen, and next thing you know my neck broke. I don't know how my neck got broke. I know the fall didn't do it because it was just a minor scrape on my head.” Plaintiff alleged that the staff's mishandling of him after his fall is what caused his cervical fracture, not the fall itself.

         Smith testified that his second claim is that he did not receive adequate follow-up medical care for the injuries he sustained on March 9, 2017. Plaintiff stated that he was in a wheelchair at the time of his Spears testimony, and that he is now partially paralyzed. He testified that he regularly receives medicine including, Gabapentin[1], Tylenol and medicines for high blood pressure and stroke. Plaintiff stated that he sees a doctor and a physical therapist once a month, and that he last saw a doctor in June 2018.

         Smith asserted that his physical therapist does not want to treat him. He testified that the physical therapist only sees him for about five minutes at a time. “I keep complaining about the situation and all the pain I'm suffering, and they're not doing anything about it. . . . I'm begging for rehabilitation.” He disputed that he refused physical therapy care on May 4, 2017. Smith testified that he filed an administrative remedy procedure (“ARP”) grievance that day against the sergeant who drove him to the physical therapy facility at Hunt because he came out of his wheelchair during the drive. Plaintiff stated that he made a medical emergency request and was taken to the infirmary instead of physical therapy. Plaintiff stated that he tried to walk at his last physical therapy appointment in June 2018, but he was not quite ready. He stated that he is ready to try to walk now.

         Smith testified that on March 4, 2018, he hit his head on the side of a toilet after security personnel threw him out of his wheelchair during a strip search, and he was taken by ambulance to Our Lady of the Angels hospital. Plaintiff stated that in order to perform the strip search, security personnel transferred him from his wheelchair to a chair in the shower area. Smith testified that after he put his clothes on, he asked for assistance with getting back into his wheelchair. He stated that a sergeant made racist comments, then threw him into his wheelchair. Smith testified that he fell out of the wheelchair, and the sergeant picked him up and threw him back into the chair.

         As to his third claim, plaintiff stated that he is frequently issued disciplinary rule violations because he cannot get out of his wheelchair. He testified that jail personnel are not taking his condition into consideration while he is in lockdown. He said, “They have me on isolation. I'm partially paralyzed. While on isolation, they have me with no mattress, no pillows, no blanket, no nothing.” When asked what kinds of write-ups he received to be placed in lockdown, Smith responded that he was cited for going into unauthorized areas, for watching television and for using racist language. He testified that in 2017 he received 50 or more disciplinary write-ups, and that he has already received about 50 write-ups this year. Smith stated that he is given notice orally of a rule violation; he is given a copy of his rule violation write-ups at his disciplinary hearings; he has had a disciplinary hearing for every write-up; and at the hearing he is told the officer's word is more credible than his. Smith stated that he makes a statement at each hearing.

         Plaintiff testified that he has been in disciplinary lockdown continuously for almost one year. He stated that he is deprived of a mattress, pillows and blankets, and he has no outdoor recreation, telephone or canteen privileges. Smith testified that he is in his wheelchair 15 or more hours per day. He said that he does not know when his term in lockdown is scheduled to end. Smith testified that every time his lockdown classification comes up for review, officers issue “bogus” write-ups to extend his lockdown time. “I'm tired of it, ” plaintiff stated, “and I really want to rehabilitate myself. I really want to walk. I really want to do a lot of things, but they are keeping me from doing it.” Finally, as to his conditions of confinement claim, Smith asserted that the conditions in his lockdown cell are poor. He testified that the food is inedible, and the cell is too small. Plaintiff stated that he lives alone in an 8x10 cell, which contains a bunk, a toilet and his wheelchair. He said, “It's a lot of metal, and a lot of concrete, and they want me to try to stand up and put pressure on my left leg. I tried to do that and hurt myself twice.” Smith alleged that he does not have enough space to try to walk.

         Plaintiff's verified medical records, Record Doc. No. 15, indicate that plaintiff has received substantial medical attention for his various medical conditions. For example, on March 9, 2017, he was taken to the “triage room” at Rayburn after his fall and then transported early the next morning to the hospital on Dr. Cleveland's order. Upon examination at the hospital, he was diagnosed with a cervical fracture, prescribed a cervical collar and medications and discharged back to Rayburn several days later, on March 15, 2017. He received medications, including Gabapentin and neurontin for seizures and Toradol for headaches. He was seen on several occasions in response to his requests by medical department personnel at Rayburn and Hunt, including for neck x-rays on April 17, 2017, and an examination in a neurosurgery clinic. He was transported to the hospital again on September 4, 2017, after another fall, and treated for a concussion, including being given a CT scan with negative findings. In early October 2017, he was transported again to University Medical Center for reassessment. He underwent an MRI in November 2017, was transported to University Medical Center for examination in the neurosurgery clinic in February 2018, and was sent again to the hospital on March 4, 2018 and x-rayed after hitting his head on a toilet. His medical records indicate that he has been seen on numerous occasions since then by Rayburn and Hunt medical personnel and provided with ibuprofen and Tylenol.

         Following the Spears hearing, I ordered plaintiff to provide further information in writing concerning his claim that he has been deprived of a mattress. Record Doc. No. 20. In his written response, plaintiff clarified that as part of his punishment in lockdown for prison disciplinary violations, his mattress has been removed from his cell “during daylight hours” on the days listed in his response. Record Doc. No. 21.

         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 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 claims against individual defendant Robert Tanner, Rayburn's medical and security staff, Hunt's medical staff and the Louisiana DOC 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 ...


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