Opinion
Civil Action No. 00-2390 Section "N"(4)
May 20, 2002
ORDER AND REASONS
This matter is before the United States Magistrate Judge upon consent of the parties pursuant to Title 28 U.S.C. § 636 (c) . In accordance with its statutory obligation to conduct a frivolous review pursuant to Title 28 U.S.C. § 1915(e)(2) and 1915A, and as applicable, Title 42 U.S.C. § 1997e(c)(1) and (2), the Court conducted a second hearing pursuant to Spears v. McCotter, and its progeny, on April 15, 2002. Participating were the plaintiff, Keleb Dendreth ("Dendreth"), pro se, and counsel for the defendants.
Rec. Doc. No. 15.
766 F.2d 179 (5th Cir. 1985).
Rec. Doc. No. 28. The matter was set for Non-Jury Trial on April 15, 2002. However, the Trial was continued and convened to a Spears Hearing. The purpose of the Spears Hearing is to ascertain what it is the prisoner alleges to have occurred and the legal basis for the claims. Spears, 766 F.2d at 180. The information elicited at the hearing is in the nature of an amended complaint or a more definite statement under Fed.R.Civ.P. 12(e). Wilson v. Bariensos, 926 F.2d 480, 481 (5th Cir. 1991). The Court also conducted a Spears Hearing on January 22, 2001. The plaintiff was sworn prior to testifying.
I. Factual Summary
The plaintiff, Keleb Dendreth, is incarcerated in Winn Correctional Center in Winnfield, Louisiana. He filed this pro se and in forma pauperis complaint pursuant Title 42 U.S.C. § 1983 against the Orleans Parish Criminal Sheriffs Office, Sheriff Charles C. Foti, Jr., Officer T. Jones, Deputy Taylor, and Sgt. Bonita Hill. Dendreth alleges that the defendants failed to provide him with adequate protection, used excessive force against him, and denied him adequate medical care. A. The Original Complaint
See Rec. Doc. #1.
Dendreth alleges that he was attacked by an inmate while housed in punitive segregation at the Orleans Parish Prison ("OPP"). Dendreth contends that he was in his bed when the inmate made sexual advances towards him. When Dendreth rejected the advances, the inmate attacked him, beat him, ripped his clothes off, and tried to rape him.
According to Dendreth, the deputy on duty, Ms. Taylor, ignored his plea for help. When he ultimately told her about the attack he was instructed to go back to his cell. When he returned to his cell, the inmate attacked him again. Dendreth alleges that he again called for Deputy Taylor's assistance but Deputy Taylor attacked him and took him to see her ranking officers. He alleges that the ranking officer threatened him and the Security Investigation Division ("SID") officers booked him on fabricated disciplinary charges. Dendreth alleges that he was found not guilty of the disciplinary charges. Despite being found not guilty, he was placed in segregation.
He does not identify the SID officers involved.
He claims that on July 25, 2000, he was sent to the disciplinary board and was given 90 days in segregation because he defended himself as the victim of the sexual assault and the subsequent attack by Deputy Taylor. The attacker was not charged. He contends that the OPP staff had substantial knowledge of the attacks but were deliberately indifferent to his safety.
Dendreth also alleges that he was not taken for medical care after the attack by the inmate or the attack by Deputy Taylor. He suffered neck, back and eye injuries. He claims that he also feared for his life while he was housed at OPP. He further alleges that the prison officials would not respond to his grievances. He seeks medical attention and compensatory and punitive damages in the amount of $1.5 million.
The Court conducted two Spears Hearings on January 22, 2001, and April 15, 2002.
Dendreth testified that he was convicted in February 2000, for possession of cocaine. The subject incident occurred in July 2000, after Dendreth was convicted. Dendreth testified that he named Sheriff Foti as the supervising official over the jail and the other named defendants. He also named Sergeant Bonita Hill because she was the ranking officer over the tier and over Deputy Taylor. He claims that she too was unnecessarily verbally abusive and physically aggressive. He further alleges that Deputy Taylor was deliberately indifferent to his safety and that she verbally and physically abused him.
He specifically alleged that, when his cell-mate, "Wayne," attacked him, he called for Deputy Taylor to open the cell door to let him out. However, Deputy Taylor cursed at him and refused to do so. He testified that she threatened to charge him with a disciplinary violation if he continued to bother her.
The second time Wayne tried to attack him, he again called Deputy Taylor for help. On this occasion, Deputy Taylor came to the tier, slapped him and forced him back into his cell. He testified that Deputy Taylor later charged him with assault.
He further testified that he was not given a disciplinary hearing on the charge. Instead, another deputy took him to the sixth floor disciplinary tier because other inmates complained about him being gay. At the hearing, Dendreth could not recall what Deputy T. Jones' involvement was regarding the circumstances surrounding the incident. He testified that Jones may have been the deputy who transferred him to the sixth floor.
He also claimed that the conditions of the disciplinary confinement amounted to cruel and unusual punishment. He had no toiletry items, no commissary privileges, no visitation, and no telephone access. He claims he was often locked in his cell seven days a week, 24 hours a day. He would write complaints but the prison officials would only add to his disciplinary time.
Dendreth also testified that at one point during his detention in OPP from January 2000, to October 2000, Deputy Hennessy, who is not a named defendant, held him down and shaved his head. He was also not given any medication for the treatment of Sickle Cell Anemia, a disease with which he has been diagnosed. He also alleges that the deputies constantly harassed him about being HIV positive simply because he was gay.
II. Procedural Background
On July 17, 2001, the Court issued Order and Reasons ordering the dismissal of the claims against Deputy Taylor for lack of service pursuant to Fed.R.Civ.P. 4(m). Thereafter, on April 15, 2002, the Court granted leave for Dendreth to amend his complaint to include Sergeant Hill and to include the claims against her that he raised in the Spears Hearings. The matter is presently set for non-jury trial on August 16, 2002, at 1:30 p.m.
Although Deputy Taylor is allegedly a main participant in the events surrounding Dendreth's complaint, she was never located or properly served. She is also no longer employed by the Orleans Parish Criminal Sheriffs Office.
III. Standard of Review for Frivolousness
Title 28 U.S.C. § 1915A and Title 42 U.S.C. § 1997e(c) require the Court to sua sponte dismiss cases filed by prisoners proceeding in forma pauperis upon a determination that they are frivolous. The Court has broad discretion in determining the frivolous nature of the complaint. See Cay v. Estelle, 789 F.2d 318 (5th Cir. 1986), modified on other grounds, Booker v. Koonce, 2 F.3d 114 (5th Cir. 1993).
However, the Court may not sua sponte dismiss an action merely because of questionable legal theories or unlikely factual allegations in the complaint. Under this statute, a claim is frivolous only when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319 (1989); Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998).
A claim lacks an arguable basis in law if it is based on an undisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist. Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999). It lacks an arguable factual basis only if the facts alleged are "clearly baseless," a category encompassing fanciful, fantastic, and delusional allegations. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992); Neitzke, 490 U.S. at 327-28. Therefore, the Court must determine whether the plaintiffs' claims are based on an undisputably meritless legal theory or clearly baseless factual allegations. Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994); see Jackson v. Vannoy, 49 F.3d 175, 176-77 (5th Cir. 1995); Moore v. Mabus, 976 F.2d 268, 269 (5th Cir. 1992).
IV. Claims against the Orleans Parish Criminal Sheriffs Office
Dendreth named the Orleans Parish Criminal Sheriffs Office as a defendant in this action. In accordance with Rule 17(b) of the Federal Rules of Civil Procedure, Louisiana law governs whether the Orleans Parish Sheriffs Department has the capacity to sue or be sued. 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 Art. 24.
Rule 17(b) of the Federal Rules of Civil Procedure provides tat "capacity to sue or be sued shall be determined by the law of the state in which the district court is held." See Fed.R.Civ.P. 17(b).
In Louisiana, Parish Sheriffs Offices are not legal entities capable of suing or being sued. Ruggiero v. Litchfleld, 700 F. Supp. 863, 865 (M.D. La. 1988). The State of Louisiana grants no such legal status to any Parish Sheriff's Offlce. Liberty Mutual Insurance Co. v. Grant Parish Sherif's Department, 350 So.2d 236 (La.App. 3d Cir.), writ refused, 352 So.2d 235 (La. 1977). Thus, the Orleans Parish Criminal Sheriffs Office is not a juridical person capable of being sued under § 1983. Accordingly, Dendreth's claims against the Orleans Parish Criminal Sheriffs Office are frivolous pursuant to Title 28 U.S.C. § 1915(e).
V. Claims Against Sheriff Charlg C. Foti, Jr. and Sergeant Bonita Hill as Supervisors
Dendreth has named Sheriff Foti and Sergeant Hill as defendants in their capacity as supervisory officials. However, a supervisory official cannot be held liable pursuant to § 1983 under any theory of respondeat superior simply because an employee or subordinate allegedly violated the plaintiff's constitutional rights. See Alton v. Texas AM University, 168 F.3d 196, 200 (5th Cir. 1999); see also Baskin v. Parker, 602 F.2d 1205, 1220 (5th Cir. 1979).
Moreover, a state actor may be liable under § 1983 only if the plaintiff can establish that the official "was personally involved in the acts causing the deprivation of his constitutional rights or that a causal connection exists between an act of the official and the alleged constitutional violation." Douthit v. Jones, 641 F.2d 345, 346 (5th Cir. 1981); see also Watson v. Interstate Fire Casualty Co., 611 F.2d 120 (5th Cir. 1980).
However, a warden or other supervising officer like Sheriff Foti or Sergeant Hill, who is not personally involved in the acts that deprived the plaintiff of his constitutional rights, is only liable under § 1983 if: (1) the warden or supervising officer failed to train or supervise the subordinate officers involved; (2) there is a causal connection between the alleged failure to supervise or train and the alleged violation of the plaintiff's constitutional rights; and (3) the failure to train or supervise constituted deliberate indifference to the plaintiff's constitutional rights. Thompson v. Upshur County, 245 F.3d 447, 459 (5th Cir. 1991) (citations omitted).
Proof of a single instance, rather than a pattern of similar violations, normally will not sustain a plaintiff's claim that a lack of training or supervision caused a violation of his constitutional rights. Id. (citing Snyder v. Trepagnier, 142 F.3d 791, 798-99 (5th Cir. 1998) and Thompkins v. Belt, 828 F.2d 298, 304-05 (5th Cir. 1987)). Finally, the inadequacy of the training "must be obvious and obviously likely to result in a constitutional violation." Id. (citing City of Canton v. Harris, 489 U.S. 378, 390 n. 10 (1989)).
Supervisory liability may also exist "without overt personal participation in the offensive act if supervisory officials implement a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation." Thompkins, 828 F.2d at 304. An official policy is:
1. a policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the [government entity] . . . or by an official to whom the [entity] has delegated policy-making authority; or
2. a persistent, widespread practice of . . . officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents [the entity's] policy.Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992). A plaintiff may also establish a custom or policy based on an isolated decision made in the context of a particular situation if the decision was made by an authorized policymaker in whom final authority rested regarding the action ordered. City of St. Louis v. Praprotnik, 485 U.S. 112, 124-25 (1988); Bennett v. Pippin, 74 F.3d 578, 586 (5th Cir. 1996).
Dendreth does not allege that Sheriff Foti was personally involved in the incidents on the disciplinary tier or in the altercations with the named defendants. Sergeant Hill, he claims, is liable in part solely as the supervisor of Deputy Taylor. He does not allege that the actions allegedly taken by the named defendants were part of the policies implemented by Sheriff Foti or were a direct result of Sheriff Foti's failure to train any of the individual defendants. His claims against Sheriff Foti and Sergeant Hill as supervisory officials are therefore frivolous pursuant to Title 28 U.S.C. § 1915 (e).
VI. Remaining Claims Against Sergeant Hill
In addition to naming Sergeant Hill in her supervisory capacity, Dendreth also alleges that Sergeant Hill was at times verbally abusive and physically aggressive towards him. However, the mere use of threatening or abusive language by custodial officers does not give rise to a claim under § 1983. McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.), cert. denied, 464 U.S. 998 (1983); Burnette v. Phelps, 621 F. Supp. 1157 (M.D. La. 1985). "Claims of hurt feelings, humihation, and other heartfelt, yet objectively trivial indignities, are not of Constitutional moment . . ." Jackson v. Liberty County, 860 F. Supp. 360, 363 (E.D. Tx. 1994). Verbal harassment and abusive language by correctional officers, while unprofessional and inexcusable, are simply not sufficient to state a constitutional claim under § 1983. Slagel v. Shell Oil Refinety, 811 F. Supp. 378, 382 (C.D. Ill. 1993), aff'd, 23 F.3d 410 (7th Cir. 1994). Thus, plaintiffs endurance of perhaps unkind comments from Sergeant Hill will not rise to the level of a constitutional violation.
Dendreth also contends that Sergeant Hill was physically aggressive. Dendreth has not explained what he means by aggressive and he has not described any event in which Sergeant Hill made physical contact with him. Nevertheless, not every malevolent touch by a guard is unconstitutional. Hudson v. McMillian, 503 U.S. 1, 9 (1992). A de minimis use of force, such as a slap or a shove, does not implicate constitutional concerns. Id.; Bell v. Wolfish, 441 U.S. 520 (1979); Siglar v. Hightower, 112 F.3d 191, 193-94 (5th Cir. 1997) (bruised ear lasting for three days after guard twisted inmate's ear and held his arm behind his back was de minimis and did not state a claim for excessive force); Jackson v. Culbertson, 984 F.2d 699, 700 (5th Cir. 1993) (inmate who suffered no injury when sprayed with a fire extinguisher was exposed to a de minimis use of force and his claim was properly dismissed as frivolous).
The use of force is only actionable under § 1983 when the force is excessive. Hudson v. McMillian, 503 U.S. 1 (1992). When called upon to examine the amount of force used, the appropriate inquiry under Hudson is "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically to cause harm." Hudson, 503 U.S. at 6 ( quoting Whitley v. Albers, 475 U.S. 312, 320-21 (1986)); Rankin v. Klevenhagen, 5 F.3d 103, 106-07 (5th Cir. 1993) (applying the Hudson standard to a pre-trial detainee). The plaintiff need not show a serious or significant injury in order to prove the violation; a showing of harm is sufficient. Hudson, 503 U.S. at 6; Jackson, 984 F.2d at 700.
To determine whether the use of force was wanton and unnecessary, a court may consider such factors as the need for the application of force, the relationship between the need and the amount of force used, the threat perceived by the officials and efforts made to temper the severity of a forceful response, and the extent of the injury to the inmate. Hudson, 503 U.S. at 6-7.
In the instant matter, Dendreth has failed to allege any facts which would amount to the use of excessive force by Sergeant Hill. In fact, he has not alleged that Sergeant Hill used any physical force against him. In addition, Dendreth contends that his encounter with Sergeant Hill was within the disciplinary context after he had allegedly been in a disturbance with depute Taylor and his cell-mate. For these reasons, Dendreth's claims against Sergeant Hill are frivolous pursuant to Title 28 U.S.C. § 1915(e).
VII. Claims Against depute T. Jones
Dendreth is, at best, unsure as to why he named depute T. Jones as a defendant in this case. After questioning by the Court at the Spears Hearing on April 15, 2002, Dendreth indicated that Jones may have been the name of the deputy who escorted him to the sixth floor disciplinary tier. If depute Jones participated in, or was responsible for, improper disciplinary confinement, Dendreth has failed to state a cognizable claim against Jones.
In Sandin v. Connor, 515 U.S. 472, 481-83 (1995), the Supreme Court held that analysis of a prisoner's due process claims relating to prison disciplinary action begins with determining whether a constitutionally protected liberty interest exists. "Liberty interests protected by the Fourteenth Amendment may arise from two sources — the Due Process Clause itself and the laws of the States." Berrier v. Allen, 951 F.2d 622, 624 (4th Cir. 1991). In Sandin, the Supreme Court recognized that although the States may create liberty interests, "these interests will generally be limited to freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484 (citations omitted). Thus, in Sandin, when a prisoner was placed in disciplinary segregation for 30 days and the discipline did not inevitably affect the duration of his sentence, the Court held that due process does not require that the prisoner be afforded the procedural mechanisms previously prescribed in Wolff v. McDonnell, 418 U.S. 539 (1974).
In Wolff, the Supreme Court held that because disciplinary proceedings are not part of a criminal prosecution, the prisoner is not afforded "the full panoply of rights" provided in criminal proceedings. Wolff, 418 U.S. at 556. Nevertheless, the Wolff court held that prison officials must afford the prisoner some due process in disciplinary proceedings before imposing punishment, including notice of the violation, a hearing and some opportunity to present evidence on his behalf. Id.
"[T]he Due Process Clause does not protect every change in conditions of confinement which has a substantial adverse effect upon a prisoner." Madison v. Parker, 104 F.3d 765, 767 (5th Cir. 1997). The Madison court held that a prisoner's 30-day commissary and cell restrictions imposed as punishment for disciplinary violations were "merely changes in the conditions of his confinement and do not implicate due process concerns." Id. at 768; accord Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000) (citing Preiser v. Rodriguez, 411 U.S. 475, 493 (1973)). The court further held that such restrictions are "penalties, which do not represent the type of atypical, significant deprivation in which a state might create a liberty interest." Madison, 104 F.3d at 768. Examples of disciplinary hardships that would qualify as so atypical and significant as to implicate due process considerations include unwanted administration of psychotropic drugs, involuntary commitment to a mental hospital or extension of the prisoner's sentence for his underlying criminal conviction. Sandin v. Connor, 515 U.S. 472, 484 (1995).
Placing Dendreth in a segregated cell was not an atypical and significant hardship in relation to the ordinary incidents of prison life, nor does it affect the duration of his sentence. See Sandin, 515 U.S. at 484, 486 n. 9; Cooper v. Garcia, 55 F. Supp.2d 1090, 1099 (S.D. Cal. 1999). Dendreth's claims, if any, against Deputy T. Jones for moving him to a disciplinary cell without a hearing are frivolous under Title 28 U.S.C. § 1915(e). Accordingly,
IT IS ORDERED that Keleb Dendreth's claims brought pursuant to Title 42 U.S.C. § 1983 against the defendants, Sheriff Charles C. Foti, Jr., the Orleans Parish Criminal Sheriff's Office, Sergeant Bonita Hill and Deputy T. Jones, are DISMISSED WITH PRFJUDICE as frivolous pursuant to Title 28 U.S.C. § 1915(e)(2), § 1915A and Title 42 U.S.C. § 1997e.
IT IS FURTHER ORDERED that the Non-Jury Trial (doc. #28) scheduled for August 16, 2002, is CANCELLED.
New Orleans, Louisiana, this 20th day of May, 2002.