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Lopez v. LeBlanc

United States District Court, M.D. Louisiana

March 8, 2019

NELSON T. LOPEZ #615051
v.
JAMES LEBLANC, ET AL.

          NOTICE

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.

         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

         This matter comes before the Court on Motions to Dismiss filed on behalf of defendants James LeBlanc, Darryl Vannoy, Ray Vittorrio, Butch Browning, Jimmy Guidry, and Joseph Landry (R. Docs. 16 and 27). These motions are not opposed.

         The pro se plaintiff, an inmate confined at the Louisiana State Penitentiary (“LSP”), Angola, Louisiana, filed this proceeding pursuant to 42 U.S.C. § 1983 James LeBlanc, Darryl Vannoy, Ray Vittorrio, Joseph Landry, Becky Meredith, Butch Browning and Jimmie Guidry alleging that he has been subject to unconstitutional conditions of confinement.[1] He prays for declaratory, injunctive, and monetary relief.

         The defendants assert, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, that the plaintiff has failed to state a claim upon which relief may be granted. In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court clarified the standard of pleading that a plaintiff must meet in order to survive a motion to dismiss pursuant to Rule 12(b)(6). Specifically, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, supra, at 555. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, supra, 556 U.S. at 678, quoting Bell Atlantic Corp. v. Twombly, supra. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. It follows that, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. at 679. “Where a Complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Id. at 678 (internal quotation marks omitted).

         On a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court “must accept as true all of the factual allegations contained in the Complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). Further, “[a] document filed pro se is ‘to be liberally construed' ... and ‘a pro se Complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Id. (citation omitted). Notwithstanding, the court need not accept “a legal conclusion couched as a factual allegation, ” Papasan v. Allain, 478 U.S. 265, 286 (1986), or “naked assertions [of unlawful conduct] devoid of further factual enhancement.” Ashcroft v. Iqbal, supra, 556 U.S. at 678 (internal quotation marks omitted).

         The plaintiff alleges the following in his Complaint: On November 17, 2016, the plaintiff was transferred to Camp D from the main prison. Immediately upon transfer, the plaintiff observed foul showering conditions in the form of clogged drainage, odorous water pooled in the shower drains, and inoperable shower heads. On December 22, 2016, the plaintiff composed a letter to defendant Assistant Warden Ray Vittorio to inform him of the same. Defendant Vittorio failed to respond, and the plaintiff sought help from defendant Joseph Landry on December 28, 2016, January 3, 2017, and January 12, 2017. On the last occasion, the plaintiff and two other inmates asked defendant Landry to contact the maintenance crew and Landry responded, “All this shit I have going on, I don't give a damn about some showers, bother me again and I will lock your black ass up.”

         Weeks later, the plaintiff sought medical treatment for a painful rash. The plaintiff was prescribed Tolnaftate cream and a powder for a bacterial rash on his thighs and feet.

         Camp D is operating at 50% over capacity due to the addition of 32 inmates. Living space per inmate has been reduced from 50 square feet to 42 square feet. The ventilation ducts and windows are inoperable, and the only source of ventilation is an exhaust fan at the back of dorm which is inmate operated at will. Due to the poor ventilation, the plaintiff inhales foul odors and gases emanating from inmates defecating on nearby toilets. The bathrooms are approximately 216 square feet and are meant to accommodate 96 inmates with only five toilets, three shower heads, and six sinks which all have some sort of malfunction. The ventilation in the bathroom is also inoperable.

         Due to the lack of temperature control and air circulation, the inmates endure harsh cold temperatures in the winter and stifling hot temperatures in the summer. The ratio of security personnel to inmates is 1 to 192, which causes plaintiff to fear the potential risk to health, safety, and life.

         On the morning of April 28, 2017, while working outside, the plaintiff was suffering from an upset stomach and asked Becky Meredith to escort him to the toilet facilities location 50 yards away. Meredith refused and instructed the plaintiff to relieve himself in the nearby ditch. When the plaintiff requested to be escorted again, Meredith threatened to have the plaintiff placed in administrative segregation. ...


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