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Davis v. Ouachita Correctional Center

United States District Court, W.D. Louisiana, Monroe Division

September 26, 2019


         SECTION P



          Karen L. Hayes, United States Magistrate Judge.

         Plaintiff Tony D. Davis, a pre-trial detainee at Ouachita Correctional Center (“OCC”) proceeding pro se and in forma pauperis, filed the instant proceeding on June 28, 201');">19');">9');">9');">9');">9');">9');">9');">9, under 42 U.S.C. § 1');">19');">9');">9');">9');">9');">9');">9');">983. He names the following defendants in their official capacities: OCC, Sheriff Jay Russell, Warden Pat Johnson, and Medical Coordinator Donna Norman.[1');">1" name="FN1');">1" id= "FN1');">1">1');">1] For reasons that follow, the Court should retain Plaintiff9');">9');">9');">9');">9');">9');">9');">9;s conditions-of-confinement claims against Sheriff Jay Russell and Warden Pat Johnson concerning mold, mildew, fungus, and bacteria.[2] The Court should dismiss Plaintiff9');">9');">9');">9');">9');">9');">9');">9;s remaining claims.


         Plaintiff is a pre-trial detainee at OCC who has been awaiting trial since 201');">16. [doc. # 9');">9');">9');">9');">9');">9');">9');">9, 1');">1');">p. 1');">1]. Plaintiff alleges that the air vents, air ducts, and showers at OCC “are covered in visible black mold, mildew, and fungus.” [doc. # 1');">1, p. 3]. In his amended pleading, he alleges that black mold, mildew, and fungus is present in the interior walls, on the floors, and on the ceiling of the shower. [doc. # 9');">9');">9');">9');">9');">9');">9');">9, p. 3');">p. 3]. Once each week, trustee prisoners attempt to clean some areas in OCC, but the bleach they use is “excessively diluted” and does not remove the offending substances. Id.

         “Due to the constant exposure to the black mold, it has attached to [Plaintiff9');">9');">9');">9');">9');">9');">9');">9;s] body progressively. [sic].” [doc. # 1');">1, p. 3');">p. 3]. Plaintiff has been exposed to the black mold and fungus for approximately thirty-five months. [doc. #s 1');">1, p. 3; 9');">9');">9');">9');">9');">9');">9');">9, p. 3');">p. 3]. The mold and fungus caused his toenails to turn black, rashes to appear from his feet up to his ankles, itching, irritation, discoloration, peeling skin, restless nights, mental distress, pain, suffering, shortness of breath, headaches, nasal congestion, and a sore throat. [doc. #s 1');">1, pp. 3');">p. 3-4; 9');">9');">9');">9');">9');">9');">9');">9, p. 4');">p. 4].

         Plaintiff claims that Defendants Russell, Johnson, and Norman all know of the mold, mildew, bacteria, and fungus. [doc. # 9');">9');">9');">9');">9');">9');">9');">9, pp. 2-3]. They are also all aware that “the long term exposure to fungal substances, mildew, and (black) mold is harmful and dangerous.” Id. at 3. Therefore, according to Plaintiff, these defendants “subjectively meant for harm to occur by not remedying the problem.” Id. Plaintiff claims that the conditions amount to “a form of punishment . . . .” Id. at 4.

         Plaintiff maintains that the “shower walls and ceilings are deteriorating due to the poor ventilation system.” Id. at 4. “The vents and air duct[s] in the showers and the cells have been painted over, causing poor air circulation.”[3] Id. “Vents have become infested with mold, mildew, and fungus bacteria, [and] these are the same vents that are connected to the main air duct and ventilation system that connects throughout the entire facility.” Id. “The failure to maintain adequate ventilation” forces Plaintiff to breathe mildew, mold, and fungus. Id. The poor ventilation subjects inmates to a “‘bacteria gas chamber.9');">9');">9');">9');">9');">9');">9');">9;” Id.

         Plaintiff claims that he wrote “a grievance concerning the mold in the showers in July of 201');">18, but [he] did not receive a response or [his] grievance back.” Id. He adds that “there is a conflict of interest in the ‘Administrative Remedy Procedure9');">9');">9');">9');">9');">9');">9');">9; at this facility, ” because a “majority of the staff members are family or friends which results in ARP9');">9');">9');">9');">9');">9');">9');">9;s being lost, not answered in the required time period, or answered with a sarcastic remark but not remedying or addressing the problem.” Id. at 4-5. He maintains that this conflict of interest violates “the Right of Access to the Courts.” Id. at 4.

         Plaintiff alleges that, on approximately August 2, 201');">16, or October 1');">10, 201');">16, he “went to medical for jock itch/rashes” on his mid-lower body and that “it was determined that [he] had ‘gout.9');">9');">9');">9');">9');">9');">9');">9;” [doc. # 9');">9');">9');">9');">9');">9');">9');">9, 1');">1');">p. 1');">1]. He was prescribed anti-fungal cream, amoxicillin, and indomethacin. Id. Plaintiff claims that “this facility” misdiagnosed him, that gout was never the problem, and that he actually contracted a “fungus bacteria from the molded showers.” Id. Plaintiff also claims that the facility charged him for gout medication. Id.

         Plaintiff claims that, although Defendant Norman was aware that the side effects of his gout medication caused itching and peeling skin, Norman failed to “address the side effects with” him before “the issuance of the medication.” Id.

         Plaintiff claims that the anti-fungal cream “stopped the further spreading of the rash and the itching sensation, but it did not eliminate the problem entirely because the rash ‘did not9');">9');">9');">9');">9');">9');">9');">9; fully go away.” Id. He claims that he “was never scheduled for a follow up review to ensure that the medication issued was effective.” Id.

         Plaintiff alleges that, on approximately August 21');">1, 201');">18, he was treated for “re-occurring symptoms of rashes, skin irritation, itching, [and] peeling skin that had risen from [his] feet, ” progressed to various spots on his legs, and “left permanent marks and visible skin damage.” Id. He was again “issued anti-fungal cream, which only stopped the rash from spreading, but it never fully alleviated the problem.” Id. The cream only “pacif[ies]” his ailments, and the medical staff knows that he will suffer severe, long-term effects from exposure to the mold and fungus. [doc. # 1');">1, p. 4');">p. 4].

         Plaintiff claims that he “was not given a follow up to check the condition of [his] health issues.” [doc. # 9');">9');">9');">9');">9');">9');">9');">9, 1');">1');">p. 1');">1]. Plaintiff claims that he was charged for care again. Id. at 1');">1-2.

         Plaintiff9');">9');">9');">9');">9');">9');">9');">9;s rashes and black toenails remain, and he has “become mentally distraught, depressed, anxious, and mentally anguished from the extensive length of time that [he] has been suffering under these unhealthy living conditions . . . .” Id. On August 2, 201');">19');">9');">9');">9');">9');">9');">9');">9, a physician prescribed Plaintiff Prozac to aid his mental-health symptoms. Id. at 2.

         In his amended pleading, Plaintiff claims that the “shower floors are infested with worms and maggots.” Id. at 4.

         Plaintiff seeks punitive damages, $375, 000.00 in compensatory relief, reimbursement for his past, present, and future medical expenses, treatment by a dermatologist and a lung specialist, an order instructing OCC to renovate the vents, shower stalls, and air ducts, an audit of medical records, an audit of the Administrative Remedy Procedure, an audit of all previous lawsuits against the Medical Department at OCC, and a transfer out of OCC. [doc. #s 1');">1, p. 5; 9');">9');">9');">9');">9');">9');">9');">9, p. 5].

         Law and Analysis

         1');">1. Preliminary Screening

         Plaintiff is a prisoner who has been permitted to proceed in forma pauperis. As a prisoner seeking redress from an officer or employee of a governmental entity, his complaint is subject to preliminary screening pursuant to 28 U.S.C. § 1');">19');">9');">9');">9');">9');">9');">9');">91');">15A.[4] See Martin v. Scott, 1');">156 F.3d 578, 579');">9');">9');">9');">9');">9');">9');">9-80 (5th Cir. 1');">19');">9');">9');">9');">9');">9');">9');">99');">9');">9');">9');">9');">9');">9');">98) (per curiam). Because he is proceeding in forma pauperis, his Complaint is also subject to screening under § 1');">19');">9');">9');">9');">9');">9');">9');">91');">15(e)(2). Both § 1');">19');">9');">9');">9');">9');">9');">9');">91');">15(e)(2)(B) and § 1');">19');">9');">9');">9');">9');">9');">9');">91');">15A(b) provide for sua sponte dismissal of the complaint, or any portion thereof, if the Court finds it is frivolous or malicious, if it fails to state a claim on which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief.

         A complaint is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams,9');">9');">9');">9');">9');">9');">9');">90 U.S. 31');">19');">9');">9');">9');">9');">9');">9');">9');">49');">9');">9');">9');">9');">9');">9');">90 U.S. 31');">19');">9');">9');">9');">9');">9');">9');">9, 325 (1');">19');">9');">9');">9');">9');">9');">9');">989');">9');">9');">9');">9');">9');">9');">9). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Id. at 327. Courts are also ...

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