Opinion
CIVIL ACTION NO. 05-2217-LC SECTION P.
August 8, 2006
REPORT AND RECOMMENDATION
Before the court is the pro se civil rights ( 42 U.S.C. § 1983) complaint of Eric Davis a/k/a/William Blanchard, filed in forma pauperis on December 22, 2005. At the time plaintiff filed his complaint, he was a pre-trial detainee in the custody of the Calcasieu Correctional Center (CCC), Lake Charles, Louisiana. Since this time, plaintiff states that he was "sentenced to serve six months in parish jail . . . and . . . fifteen months Department of Corrections." [Doc. # 15, p. 1]. Plaintiff complains of incidents that occurred during his arrest as well as conditions of confinement during his incarceration. He names Sheriff Tony Mancuso, the Calcasieu Parish Sheriff's Department, and unidentified Calcasieu Sheriff's Deputies as defendants herein.
See Doc. #14, a letter from plaintiff noting that his name had changed from William Chester Blanchard to Eric W. Davis.
Plaintiff has improperly named the Calcasieu Parish Sheriff's Department. In accordance with Rule 17(b) of the Federal Rules of Civil Procedure, Louisiana law governs whether the Sheriff's Department has the capacity to sue or be sued in this action. Under Louisiana law, to possess such a capacity, an entity must qualify as a juridical person. This term is defined by the Louisiana civil Code as "an entity to which the law attributes personality, such as a corporation or partnership." La. Civ. Code Ann. Art. 24. In Louisiana, however, Parish Sheriff's Offices are not legal entities capable of suing or being sued. See, Cozzo v. Tangipahoa Parish Council-President, 279 F.3d 273, 283 (5th Cir. 2002); Ruggiero v. Litchfield, 700 F.Supp. 863, 865 (M.D. La. 1998); Causey v. Parish of Tangipahoa, 167 F.Supp.2d 898, 909 (E.D.La. 2001); Liberty Mutual Insurance Co. v. Grant Parish Sheriff's Department, 350 So. 2d 236 (La.App. 3d Cir.), writ refused, 352 So. 2d 235 (La. 1977); Newton v. Tangipahoa Parish Sheriff's Office, et al., 2004 WL 963790 (E.D.La. May 5, 2004). Thus, the claims against the Sheriff's Department lack an arguable basis in law and are recommended dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and 1915A(b)(1).
This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of the court.
STATEMENT OF THE CASE
Plaintiff states that on September 24, 2005 (during Hurricane Rita) he was walking down the street in Lake Charles, Louisiana, when he was stopped by Calcasieu Parish Sheriff's Deputies, who searched and arrested him. Plaintiff contends that his rights were never read to him and that upon being placed in the police car, he was driven to a convenience store where a female officer removed items from the patrol car's trunk and placed them on the ground. Plaintiff claims that he was accused of stealing the items. [Doc. #1-1, p. 4]. He was then brought to a high school gymnasium, where he claims to have been repeatedly beaten, kicked, and verbally abused by several Calcasieu Parish Deputies. Plaintiff was later booked into CCC and charged with looting.
Plaintiff does not make the allegations concerning the reading (or lack thereof) of his rights or the circumstances alleged to have occurred at the convenience store regarding the placement of the items for which he was accused of stealing, part of his suit herein. Specifically, plaintiff states, "the conditions of my incarceration are the basis for complaint which I've filed also the beatings by the officers who arrested me." [Doc. #9, p. 2].
Plaintiff complains that he was placed in an eight person holding cell that was filled with more than thirty people; that there was no running water in the cell nor any chemicals to clean up blood on the floor from people who had been beaten; that he was subjected to these conditions for eight days before he was given a shower; that the unsanitary conditions caused him to get two painful skin diseases and a bacterial infection; that the toilet in the cell was filled with days old human waste; and that there was no medical staff available for nine days. Plaintiff was then moved to an overcrowded lock-down cell where he had to sleep by the urinal without any covers; was given little food and water; and was harassed by sheriff deputies. After several days, plaintiff was moved to Calcasieu Sheriff's prison and was placed in lock-down by deputy Valerie Spears. He claims that for three days he had to sleep on an iron bed rack without a mattress or sheets, and was not fed his evening meal. He further claims that all of the above actions occurred without due process. Plaintiff then states that he was placed in a maximum security dorm, where he remained at the time of filing this matter. He contends that during this time he has been denied access to the law library, has not been allowed to attend religious services, and has had recreation only once. As a result of the above, plaintiff seeks $2,000,000.00 in punitive damages; $1,000,000.00 in exemplary damages; and $500,000.00 in actual damages.
On or about May 24, 2006, plaintiff filed a letter [Doc. #15] with the court wherein he contests the fact that he, as a DOC prisoner, is being housed with individuals not in his prison status, namely parish prisoners and federal inmates. This argument is apparently based on the assertion that plaintiff was supposed to be released from the six month parish jail on May 12, 2006, presumably to being his fifteen month sentence. [Doc. #15, p. 2]. To the extent that plaintiff was attempting to add this claim to the present suit, plaintiff's efforts fail. If he intended the argument to constitute a civil rights claim, it clearly does not as a prisoner has no constitutionally protected interest in residence in a particular facility. Olim v. Wakinekona, 461 U.S. 238, 244-45, 103 S. Ct. 1741, 1745, 75 L. Ed. 2d 813 (1983); Bulger v. United States Bureau of Prisons, 65 F.3d 48, 49 (5th Cir. 1995).
On the other hand, if plaintiff intended this argument to constitute a habeas claim, it would likewise fail because plaintiff clearly did not exhaust his state court remedies in this regard. The requirement of exhaustion of state court remedies in a federal habeas corpus proceeding filed pursuant to 28 U.S.C. § 2254 is well established. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198 (1982); Minor v. Lucas, 697 F.2d 697 (5th Cir. 1983). A petitioner seeking federal habeas corpus relief cannot collaterally attack his state court conviction in federal court until he has exhausted available state remedies. Rose, 455 U.S. 509; Minor, 697 F.2d 697. The exhaustion requirement is a judicial abstention policy developed "to protect the state courts' opportunity to confront and resolve initially any constitutional issues arising within their jurisdictions as well as to limit federal interference in the state adjudicatory process." Dickerson, 816 F.2d at 225; Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509 (1971); Shute v. Texas, 117 F.3d 233 (5th Cir. 1997). In order to satisfy the exhaustion requirement, the petitioner must have provided all state courts that could review the matter with a fair opportunity to review all of his habeas corpus claims before a federal court will review those claims. Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 277 (1982); Picard, 404 U.S. 270. A review of the published jurisprudence reveals that petitioner has not had his present claims reviewed by the Louisiana Supreme Court and therefore, these claims remain unexhausted.
LAW AND ANALYSIS Failure to Exhaust Administrative Remedies
The Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997e, was amended by the Prison Litigation Reform Act (PLRA). As amended, § 1997e(a) makes the exhaustion requirement mandatory in prison conditions cases. Section 1997e(a) provides,
(a) Applicability of Administrative Remedies — No action shall be brought with respect to prison conditions under section 1983 of this title or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
The majority of plaintiff's claims center around his allegations regarding conditions of confinement. Prison condition cases are exactly the type of matter that can best be resolved by the prison officials without resort to judicial action. Thus, it is imperative to note that with respect to plaintiff's condition of confinement claims, he admits that he failed to exhaust administrative remedies before filing this lawsuit as required by 42 U.S.C. § 1997e(a). Specifically, plaintiff states that he did not present the facts relating to his complaint via the prisoner grievance procedure because: (1) "the situation apply's to my arrest, and other irrepairable [sic] damages have occurred due to my arrest" and, (2) the "grievance and disciplinary proceedings in this institution violates all constitutional rights under due process of law." [Doc. #1-1, p. 2]. Plaintiff's claims regarding the alleged beatings by the Calcasieu Parish Deputies prior to his being placed in CCC, would, as indicated by plaintiff, not be subject to the grievance process under the factual scenario presented herein. However, plaintiff's conditions of confinement claims, as previously stated, are absolutely the type of claims requiring exhaustion under 42 U.S.C. § 1997e(a). Simply put, under current law, plaintiff must exhaust the administrative remedy procedure before proceeding herein on those claims. The statute provides for no exceptions. The statute precludes any further action on these claims until plaintiff has fully exhausted the administrative remedy procedure. See also Wendell v. Asher, 162 F.3d 887, 890-91 (5th Cir. 1998) (§ 1997e(a) "plainly requires that administrative remedies be exhausted before the filing of a § 1983 suit, rather than while the action is pending . . ." "[t]o hold otherwise would encourage premature filing by potential litigants, thus undermining Congress' purpose in passing the PLRA, which was to provide the federal courts some relief from frivolous prisoner litigation."); Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir. 1998) (dismissal for failing to exhaust administrative remedies is justified "as a deterrent to premature filing by . . . other potential litigants, thus serving the Congressional purpose of providing relief from frivolous prisoner litigation . . ." and "[b]y choosing to file and pursue his suit prior to exhausting administrative remedies as required, [the plaintiff] sought relief to which he was not entitled — that is, federal court intervention in prison affairs prior to the prison having had the opportunity to address the complaint within its grievance procedures."). Further, the Supreme Court has made it clear that even futility is not a basis for a court to excuse a plaintiff's failure to exhaust. See Booth v. Churner, 532 U.S. 731, 741 n. 6, 121 S.Ct. 1819, 1825, 149 L.Ed.2d 958 (2001) ("we will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise"); accord Porter, 534 U.S. 516, 524, 122 S.Ct. 983, 988, 152 L.Ed.2d 12, ("All 'available' remedies must now be exhausted; those remedies need not meet federal standards, nor must they be 'plain, speedy, and effective.'" (citation omitted) (emphasis supplied).
see also Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002), ". . . we hold that the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. (citation omitted)."
Additionally, plaintiff's reliance on the argument that he is not required to exhaust his administrative remedies because the grievance procedures are unconstitutional is misplaced. In Pope v. State, 99-2559 (La. 6/29/01), 792 So.2d 713, the Louisiana Supreme Court held that the Louisiana Corrections Administrative Remedy Procedure (CARP), La.R.S. 15:1171-79, in effect at that time, violated certain provisions of Louisiana's Constitution in that it divested the Louisiana courts of original jurisdiction over tort actions filed by inmates against the Louisiana Department of Public Safety and Corrections. The Court was concerned with those provisions of the act which "allow[ed] the [Department], in tort actions, to effectively adjudicate its own delictual liability, and then require[d] the district courts to give 'manifest error rule' deference to that adjudication." Id. at 721 (footnote omitted). Nevertheless, the Court also recognized that the Louisiana Legislature may "enact procedures for initial submission of tort claims by prison inmates to an administrative agency for review, . . . as long as the action of the administrative agency does not constitute the exercise of original jurisdiction." Id. at 720. Mindful of that decision, the Legislature, pursuant to 2002 La. Acts No. 89, amended the statute to delete the objectionable provisions and cure the constitutional problems identified in Pope. In short, plaintiff is not exempt from the PLRA's exhaustion requirement with respect to his conditions of confinement cause of action.
Accordingly,
IT IS RECOMMENDED that plaintiff's civil rights conditions of confinement claims be DISMISSED WITHOUT PREJUDICE for failing to exhaust available administrative remedies prior to the filing of suit as mandated by 42 U.S.C. § 1997e. IT IS ALSO RECOMMENDED that plaintiff's claims against the Calcasieu Parish Sheriff's Department be DISMISSED WITH PREJUDICE as such lack an arguable basis in law and are frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and 1915A(b)(1).
IT IS FURTHER RECOMMENDED that plaintiff's claims for excessive force made against the unidentified Calcasieu Parish Sheriff's Deputies remain pending at this time.
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.Proc. 72(b), parties aggrieved by this recommendation have ten (10) business days from service of this report and recommendation to file specific, written objections with the clerk of court. A party may respond to another party's objections within ten (10) days after being served with a copy thereof.
Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in this Report and Recommendation within ten (10) days following the date of its service, or within the time frame authorized by Fed.R.Civ.P. 6(b), shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the District Court, except upon grounds of plain error. See Douglas v. United Services Automobile Association, 79 F.3d 1415 (5th Cir. 1996).