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Lewis v. Orleans Parish Sheriff's Office

United States District Court, E.D. Louisiana

June 25, 2019

GRAYLIN SYLVESTER LEWIS
v.
ORLEANS PARISH SHERIFF'S OFFICE ET AL.

         SECTION “J” (2)

          REPORT AND RECOMMENDATION

          JOSEPH C. WILKINSON, JR UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Graylin Sylvester Lewis, was a prisoner incarcerated in the Orleans Justice Center (“the Orleans jail”) in New Orleans, Louisiana, as a pretrial detainee at all relevant times. He filed this complaint pro se and in forma pauperis pursuant to 42 U.S.C. § 1983 against the Orleans Parish Sheriff's Office and various officers at the jail, including Chief Michael Laughin, Colonel Scott Colvin, Major Kevin Winnfield, Captain Bernadette Jenkins, Captain Johnson, Lieutenant Hugh Blanchard, Director Darnley R. Hodge, Sr., Terry Haynes and Warden Nicole Harris. Lewis alleges that while incarcerated in the jail for about six months from August 2018 until January 2019, he was denied access to the court and his counsel and was subjected to unconstitutional conditions of confinement. He seeks compensation for mental anguish and stress. Record Doc. No. 4-1 (Complaint at ¶ V).

         On April 23, 2019, I conducted a telephone conference in this matter. Participating were: plaintiff pro se; Benjamin Kahn and Freeman Matthews, 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

         In his original complaint, Lewis cursorily alleged only that he was placed in administrative segregation on August 24, 2018, for 30 days, during which he was “denied access to legal materials, personal hygienes (sic) . . . shower, clean linen and materials to clean cell, . . . access to toiletries, . . . recreation (while in restraints) [and] access to my mail. I was not able to speak to my attorney. . . the shower is unsanitary due to mold, scum and dirt. The rec. area is infested with mold and spiders. The food is always cold. Transport bus [is] fill[ed] with mold and I sit on it for 4-9 hours.” Record Doc. No. 4-1 at pp. 4-5.

         In subsequent written submissions in response to the court's order that he detail his claims, Record Doc. No. 8, Lewis reiterated the claims asserted in his complaint and alleged that he was “denied access to the courts by (A) being refused legal materials, (B) being given legal advice by deputy's staff members and denied envelopes, paper and pens (C) delaying legal mail, incoming and outgoing . . [and jail officials] refusing to take me to court though they were timely and legally notified of my court date and time [and] being denied access to my attorney . . . .” Record Doc. No. 9 at pp. 7-8. He attached copies of his various jail grievances and the responses. Id. at pp. 10-31. He also alleged that “the sheriff is withholding my incoming mail. It took them eight days before they brought my legal mail to me. They are delaying mail from the Eastern District Court, because they know that it's a deadline for it.” Record Doc. No. 13 at p. 2.

         During his Spears testimony, Lewis clarified that the incidents about which he complains in this case occurred during the period of August 2018 through January 2019. He stated that he was then in jail on charges of being a convicted felon in possession of a firearm. He said he had been released on bond on this charge on April 17, 2019, and that his trial date is June 18, 2019.

         He confirmed that his first claim is that he was denied access to the court in various ways during the subject time period. Specifically, Lewis stated that jail officials delayed his legal mail, failed to provide him with legal materials and interfered with his ability to talk to his lawyer, all in connection with his access to the Orleans Parish Criminal District Court where his current charges are being prosecuted. He testified that he is represented by counsel in his criminal case, a lawyer named Lawrence Gaillier, whom Lewis hired to provide him with representation in that case in May or June 2018. He stated that he was originally arrested on that charge in 2017 and granted a bond, but he was later rearrested and placed in jail after his bond was revoked in August 2018.

         Lewis testified that jail officials failed to transport him from the jail to court on eight different occasions when he was scheduled for hearings in his criminal case. He stated that he was not brought to court on those occasions because he was “in administrative segregation . . . in the hole” for various disciplinary infractions in the jail.

         He described administrative segregation as “lockdown” for “disciplinary action.” He said that he was sentenced to 30-day periods in lockdown for separate disciplinary violations six or seven times. Lewis alleged that these actions were "retaliation" after he frequently complained and asked to see ranking officers about problems and issues he saw in the jail. He alleged that jail officers were “picking at me, messing with me constantly” because his complaints usually escalated into Lewis speaking with ranking officers and making the lower-ranked officers to whom he originally complained “look bad” because “they couldn't handle the situation.” He said the disciplinary charges against him were for “nothing serious . . . . foolishness, ” and included “defiance” and “not respecting the staff” while “speaking up for other people.” He said defendant Captain Jenkins once sent him to lockdown for calling her "stupid or dumb." Lewis confirmed that he had attached some - though not all - of the grievance papers concerning these charges to his complaint.

         Lewis testified that the hearings in Orleans Parish Criminal District Court he missed in his criminal case included motion, pretrial and bond hearings. He said, “I was in jail for a whole year with no bond” on the felon in possession of a firearm charge with no opportunity to “get with my lawyer and explain to the judge how the court took my bond back on error.” He testified that his lawyer had gone to court on those occasions without him; that jail officials explained to the judge at those hearings that he had not been brought to court because of the disciplinary actions; and that the judge was “lenient” in giving them “the opportunity to bring me the next time.” Lewis complained that “it was going on for so long [and] I couldn't even talk to my attorney” to explain it. He added that while in lockdown, jail officials would not give him writing materials to write to his lawyer or the court to explain what was happening to him and that ranking officers did nothing until November 2018, when he started to receive stamped envelopes.

         Lewis testified that his missed court dates in his criminal No. 535-581 were on August 28, 2018, for a motion hearing and on September 4, 2018 for a pretrial conference. He stated that he was transported to court for a pretrial hearing by jail officials on September 27, 2018 because “I had got out of the hole.” He said he was subsequently put back into lockdown and was not brought to court for pretrial hearings on October 5, 2018; October 12, 2018; October 22, 2018; October 26, 2018; November 2, 2018; and December 3, 2018. He said that on his one court appearance during this period on September 27th, nothing occurred because “I guess they weren't expecting me.”

         Lewis testified that after his final missed court appearance in early December, he was transported to court by jail officials four or five times. He denied that he was not taken to court because he was in administrative segregation, stating that inmates in disciplinary lockdown are in fact routinely taken to court as scheduled. He alleged that “this was a punishment that was going on dealing with me. I had to speak to the director [defendant Hodge] for him to start allowing me to go to court.” He stated that on September 27th, Director Hodge saw him in response to one of Lewis's complaints and the director made jail officials take him to court on that day. He said he complained to Hodge about his inability to see or speak to his lawyer on the phone or to receive writing materials or mail privileges to communicate with his lawyer while in administrative segregation. He alleged that if he had been transported to court as scheduled, his case might already have been addressed and, if a prison term resulted, he could already have been sent “upstate” to a state Department of Corrections facility, served his time and been “home” by now. He stated that jail officials were preventing him from getting “anything done” in court in his criminal case and were doing so as punishment for his various disciplinary infractions in the jail. Lewis testified that his bond was finally reset in the criminal court on April 3 or 4, 2019, and he was released on bond when an outstanding warrant for his arrest was resolved.

         Asked about the process for the disciplinary charges against him, Lewis testified that he was given a “writeup” setting out his alleged violations each time; followed by a hearing before the disciplinary hearing officer, Sgt. Stamps, and a chance to speak on his own behalf - although it was a “no win situation, you might as well just plead guilty.” He estimated that he had six or seven - maybe more - hearings before the disciplinary hearing officer, and he said he was found guilty on each occasion.

         He complained that while he was in administrative segregation for the disciplinary violations, he could not use the phone to call his lawyer because there were no working telephones in lockdown. Lewis also stated that he had spoken to his lawyer or someone else from the lawyer's office a few times while in jail and that his lawyer also came to the jail to see him whenever he requested a visit after being released from lockdown. Lewis estimated that he was usually sentenced to 30-day periods of time in lockdown. He said that when released from lockdown, he could talk to his lawyer and buy supplies from the jail store. He complained that while being disciplined in lockdown he was denied the privilege of buying supplies from the jail store and restoration of these privileges was once delayed for as long as two weeks after he was released from lockdown. He acknowledged that after the disciplinary lockdown periods ended, his store privileges were restored, but he complained that he should still have been allowed store privileges while in lockdown.

         Lewis testified that after his final release from administrative segregation in early December 2018, he was transported to court for a hearing in his criminal case on December 17, 2018. He testified that he was returned to administrative segregation for another disciplinary violation in January 2019, but only for three days, during which time he did not miss a court date. He testified that in 2019 he was transported from jail to court “maybe four times” before he was released on bond. He stated that on the fourth of these appearances, he received a bond from the presiding judge in criminal court.

         Lewis alleged that jail personnel “called the judge and told him that I was acting out . . . and this is what I feel, the judge took it upon himself and got personal and left me in jail all that time with no bond.” He said he had a bond hearing in court for his criminal case on December 21, 2018, but the judge denied his motion for a bond on that date. He acknowledged that his lawyer was present for that bond hearing, but Judge Willard denied his request for a bond on that date. He testified that he requested a bond again later in 2019 and at that subsequent hearing Judge Willard reversed his earlier position that Lewis was a flight risk and gave him a bond after it was shown that Lewis had not previously been personally served with a subpoena with which he failed to comply. Lewis testified that he was originally granted a bond and released pending trial when initially arrested on the pending felon in possession of a firearm charge in 2017, but his bond was subsequently revoked when the judge mistakenly found that Lewis had failed to comply with a subpoena, when in fact no subpoena had ever been served upon him. He testified that once convinced that he had never actually been subpoenaed, the judge re-issued the bond, but by then he had already been in jail for about a year with no bond.

         As to his complaints about the conditions at the jail, Lewis described mold in the jail showers and on the seats of the buses used to transport him to court. He said the mold caused him to have shortness of breath, stomach aches and nausea. He stated that the inmates tried to clean the showers every night, but they did not have the proper cleaning supplies. He said they only had soap and water to try to keep the area clean. Lewis also complained that the food served at the jail was either too cold or not properly cooked or only properly cooked or hot on jail monitor inspection day. He acknowledged that he was fed three meals a day. He also complained that the linens and clothing were not properly cleaned and that while in administrative lockdown he would have to “go six or seven days with no shower.”

         He concluded his testimony by saying that nothing was done by jail officials in response to his various grievances and complaints.

         Before the Spears hearing, defendants filed three motions seeking dismissal of plaintiff's claims: (1) Defendant Orleans Parish Sheriff's Office filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6), arguing that it is not a legal entity capable of suing or being sued. Record Doc. No. 15. (2) Defendant Darnley R. Hodge, Sr. filed a motion under Rule 12(b)(6) arguing that all claims against him are barred by absolute immunity because he is a Compliance Director appointed specifically by this court under a consent decree whose authority flows directly from the court. Record Doc. No. 25. (3) Defendants Sheriff Marlin Gusman, Nicole Harris, Michael Laughlin, Scott Colvin, Kevin Winfield, Bernadette Jenkins, Hugh Blanchard and Terry Haynes filed a motion for judgment on the pleadings on grounds that Lewis fails to state cognizable claims of violation of his constitutional rights and that they are entitled to qualified immunity. Record Doc. No. 26.

         Lewis was provided with an opportunity after the Spears hearing to file written responses to these motions. Record Doc. No. 34. Lewis filed untimely responses on June 17, 2019, in which he re-alleged his allegations stated above, as well as a new allegation that defendant "Hodge should held accountable . . . his staff fabricated a story stating that I did not want to attend court [and] . . . they . . . said that the judge had to call for me go to court." Record Doc. No. 35 at pp. 2-3. Lewis also attached the docket sheet from his criminal proceedings in the Orleans Parish Criminal District Court and his grievance request records. Record Doc. No. 35-1 at pp. 1-29.

         Defendant Hodge was permitted to file a reply to plaintiff's opposition memorandum. Record Doc. Nos. 36, 37.

         ANALYSIS

         I. STANDARDS OF REVIEW

         (A) SCREENING

         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). Such complaints by prisoners must be dismissed upon review if they are frivolous, fail to state a claim upon which relief can be granted, or seek monetary relief for a defendant who is immune. 28 U.S.C. § 1915A(b)(1) and (2); 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 documents as additional evidence, as long as they are properly identified, authentic and reliable. “The Court should allow proper cross-examination and should require that the parties properly ...


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