Opinion
Civil Action No. 05-2176, Section P.
June 27, 2006
REPORT AND RECOMMENDATION
Before the court is a civil rights complaint filed in forma pauperis on December 19, 2005 by pro se plaintiff Jamie Edelkind. At the time he filed his complaint, Edelkind was a pre-trial detainee in the custody of the United States Marshal's Service (USMS), being held at the St. Martin Parish Law Enforcement Center, Breaux Bridge, Louisiana. Edelkind was awaiting trial in this court on a charge of failure to pay child support in violation of 18 U.S.C. § 228(a)(3). Edelkind was convicted on this charge on June 16, 2006, following a five-day jury trial. [See United States of America v. Jamie Edelkind, No. 6:05-cr-60067, Rec. Doc. 78]
Plaintiff's suit against Lafayette Parish Sheriff Michael W. Neustrom and his Deputies, Captain Champagne and Director Reardon, is pursuant to the provisions of 42 U.S.C. § 1983 since these defendants are alleged to be "state actors." His suit against George B. Walsh, Director of the United States Marshal's Service, is pursuant to Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), which authorized civil rights actions against federal actors.
According to the petition, plaintiff is an inmate in the custody of the Federal Bureau of Prisons (BOP); he is serving a 60 month sentence and until he was transported to Louisiana to answer to the pending charges, he was incarcerated at the Federal Medical Center (FMC) Devens, Massachusetts.
Between November, 2005, and mid-April, 2006, Edelkind was detained at the Lafayette Parish Corrections Center (LPCC). The instant civil rights suit complains of conditions of confinement at LPCC, and names Lafayette Parish Sheriff Michael W. Neustrom, LPCC Warden Champagne, LPCC Director Robert Reardon and George B. Walsh, the Director of the USMS, as his defendants. [Docs. 1, 4, and 16-1]
In his original complaint [Doc. 1-1]. Edelkind prayed for ". . . an injunction prohibiting further violation of [his] rights . . ." and ". . . a monetary judgment . . ." of $1,000,000 from Neustrom and Champagne and $10,000,000 from the Director of the USMS. In his first amended complaint he asked only that he be ". . . removed to an institution that can hold [him] in a constitutionally compliant manner . . ." and that the court ". . . sanction the defendants with . . . monetary fines, closure . . ." [Doc. 4, p. 4] In his second amended complaint he advised that ". . . he seeks the same relief propounded in the originally filed claim . . ." [Doc. 16-1, p. 8]
On March 22, 2006 the undersigned completed an initial review of plaintiff's complaints and directed him to amend to provide additional information. [Doc. 11] On May 8, 2006 plaintiff amended his complaint as directed. [Doc. 16]
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. For the following reasons it is recommended that the complaint be DISMISSED WITH PREJUDICE as frivolous and for failing to state a claim as provided by 28 U.S.C. §§ 1915 and 1915A.
Background
The original complaint [Doc. 1] and amended complaints [Doc. 4, 16-1] allege the following:
On November 4, 2005, the USMS transported plaintiff from the FMC at Devens, Massachusetts to the LPCC where he was to be held pending his trial in this court on child-support charges in the matter entitled United States of America v. Jamie Edelkind, No. 6:05-cr-60067. Plaintiff remained incarcerated at LPCC until his transfer to the St. Martin Parish facility in mid-April. [See Doc. 17, Notice of Change of Address]
Plaintiff alleged that he was proceeding pro se in one criminal matter and two civil matters. The USMS refused plaintiff permission to take any of his legal materials or files which remained in storage at FMC Devens. Plaintiff claimed that this action deprived him of his right of access to the courts.
Plaintiff is an observant Orthodox Jew. During the three-day period while he was in transit between FMC Devens and LPCC, he was not provided Kosher meals and consequently, the only food provided to him during this period was three apples.
From November 4, 2005 — November 8, 2005 LPCC failed to provide any Kosher meals and advised plaintiff that they could not and would not provide a Kosher diet. Subsequently, LPCC provided plaintiff with Kosher meals but plaintiff claims that these meals did not provide balanced nutrition. Plaintiff also claims that he has been denied his rights under the RLUIPA [Religious Land Use and Institutionalized Persons Act, 42 U.S.C.A. § 2000cc-1] because LPCC failed to provide his religious diet and otherwise interfered with his ability to practice religious observances.
Plaintiff also made the following specific complaints:
A. General Conditions of Confinement. Plaintiff complains that:
1. the conditions of confinement at LPCC do not conform to federally established minimal standards;
2. LPCC is overcrowded and that consequently he and 200 other inmates must sleep on the floor;
3. LPCC does not provide a daily recreation program and instead provides recreation for 45 minutes every other week;
4. LPCC does not provide adequate clothing and that he has not been issued socks, underwear, shoes, or a towel; and,
5. laundry exchange is done on a weekly basis.
B. Access to Court. Plaintiff also complains that:
1. LPCC does not permit "unmonitored legal calls" and has refused his request to make such a call;
2. He is denied access to the courts because LPCC has refused to provide him with envelopes and postage or an "alternative means to access the courts locally and elsewhere;" and,
3. He is denied access to a law library, a notary, copying services, or a word processor.
4. Plaintiff also claims that his inability to use the LPCC law library has deprived him of the right to prepare his defense to his pending criminal charges.
C. Specific Conditions of Confinement. Plaintiff also complains that:
1. LPCC is unsanitary and a health hazard;
2. he shares a 26 bed unit with 35 other inmates;
3. the paint on the walls is peeling;
4. the floors are filthy;
5. there is only one shower; that disinfectant is not provided for the shower;
6. some windows are broken; the ventilation is inadequate; and, LPCC's failure to provide a smoke free environment is endangering his health;
7. pillows are unavailable;
8. the mattresses are cracked and contaminated; and
9. cleaning supplies are not provided.
D. Personal Hygiene Complaints. Plaintiff complained that:
1. LPCC does not provide adequate hygiene supplies and provide only one roll of toilet paper and one bar of soap;
2. he has not been provided a razor, nail clippers, shampoo, or toothpaste;
3. LPCC has refused to supply an "indigent" personal hygiene kit and that he has been forced to rely on the kindness of other inmates.
Finally, plaintiff claims that LPCC does not follow its own policy with regard to administrative remedies procedures. Plaintiff claims to have utilized the ARP system, but alleges that his grievances have been ignored.
Plaintiff was ordered to amend his complaint to provide specific information. [Doc. 11] Among other things, plaintiff was specifically ordered to provide ". . . a description of the alleged injury sustained as a result of the alleged violation[s] . . ." [Doc. 11, p. 4] Further, he was directed to ". . . amend his pleadings to establish the particular contours of his personal claim that he has been denied access to the courts and, he should allege whether or not he has suffered an actual injury as a result . . ." [ id., p. 6]
On May 8, 2006, in response to the order to amend, plaintiff filed his Second Amended Complaint [doc. 16-1]. Plaintiff also submitted "over 150 separate administrative remedy forms," demonstrating his attempts to resolve his various complaints. [doc. 16-2, Exhibits]
Plaintiff provided copies of LPCC "General Request Forms" [Doc. 16-2, Vol. 2] and Administrative Remedies Procedure grievances [Doc. 16-2, Volume 1]. These chronicle an almost daily barrage of requests and complaints dating from November 2005 through March 2006. These documents establish that plaintiff exhausted administrative remedies with respect to the claims raised in this complaint.
In the response to the Memorandum Order, plaintiff specified the following injuries: "(1) obstruction, (2) denial and obstruction of religious practice, (3) inability to pursue his 2255 pro se action in the Northern District of Georgia, (4) having his attorney-client communications regarding the instant action reviewed by the defendants, (5) having to endure cruel and unusual punishment by (a) working 16 hours/day, (b) having to perpetrate a fraud, (c) being subject to capricious enforcement by c/o's, and (d) being deprived of warmth and hygiene, and (6) by being subject to extreme duress." [doc. 16-1, pp. 4-5]
He also specified the following injury with respect to his access to the courts claim — "(a) unable to assist his defense, (b) unable to resolve his prior conviction which prevents him from considering a plea in his pending criminal case, (c) unable to assist in his pending appeal, (d) has resulted in his being improperly detained, (e) has prevented him in evaluating discovery, and (f) has interfered with his present pending matters in the United States Supreme Court." [ id., p. 6]
He concluded the amended complaint with a list of "new allegations" — "(1) suborning fraud (HCA documentation fraud), (2) malicious prosecution (two disciplinary actions), (3) peonage (forcing plaintiff to work 16 hours without pay in order to eat), (4) failure to provide religious observance opportunity, (5) failure to properly classify plaintiff, (6) failure to provide for unmonitored legal calls, (7) repeated opening of clearly marked legal mail, (8) inadequate recreational opportunity, (9) lack of adequate facilities (cell size, windows, etc.), (10) lack of copy service, (11) lack of access to courts, (12) lack of mailing supplies, (13) refusal to address past violations in ARP's, and, (14) refusal to address issues of drug and tobacco use at LPCC." [ id., p. 7]
LAW AND ANALYSIS 1. Frivolity Review
When a prisoner sues an officer or employee of a governmental entity pursuant to 42 U.S.C. § 1983, the court is obliged to evaluate the complaint and dismiss it without service of process, if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 1915A; 28 U.S.C. 1915(e)(2). Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990).
A claim is frivolous if it lacks an arguable basis in law or in fact. Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993); Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992). A civil rights complaint fails to state a claim upon which relief can be granted if it appears that no relief could be granted under any set of facts that could be proven consistent with the allegations of the complaint. Of course, in making this determination, the court must assume that all of the plaintiff's factual allegations are true. Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998).
A hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n. 4 (5th Cir. 1991). A district court may dismiss a prisoner's civil rights complaint as frivolous based upon the complaint and exhibits alone. Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986).
District courts must construe in forma pauperis complaints liberally, but they are given broad discretion in determining when such complaints are frivolous. Macias v. Raul A. (Unknown) Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994).
A civil rights plaintiff must support his claims with specific facts demonstrating a constitutional deprivation and may not simply rely on conclusory allegations. Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995). Nevertheless, a district court is bound by the allegations in a plaintiff's complaint and is "not free to speculate that the plaintiff 'might' be able to state a claim if given yet another opportunity to add more facts to the complaint." Macias v. Raul A. (Unknown) Badge No. 153, 23 F.3d at 97.
Plaintiff's complaint specifically details his theories of liability with respect to each named defendant. Plaintiff's claims fall into three categories — (1) conditions of confinement; (2) access to the courts; and (3) miscellaneous complaints.
2. Conditions of Confinement
Plaintiff contends that he was forced to endure uncomfortable and unsanitary conditions of confinement during the six month period he was detained at LPCC. Regrettable as that may be, plaintiff has not established that he is entitled to monetary damages for the pain, suffering, mental anguish or stress that he may have experienced as a result of the allegedly improper conditions of confinement.
Plaintiff complained that the conditions of confinement at LPCC do not conform to federally established minimal standards; LPCC is overcrowded and that consequently he and 200 other inmates must sleep on the floor; LPCC does not provide a daily recreation program and instead provides recreation for 45 minutes every other week; LPCC does not provide adequate clothing and that he has not been issued socks, underwear, shoes, or a towel; laundry exchange is done on a weekly basis; LPCC is unsanitary and a health hazard; he shares a 26 bed unit with 35 other inmates; the paint on the walls is peeling; the floors are filthy; there is only one shower; that disinfectant is not provided for the shower; some windows are broken; the ventilation is inadequate; and, LPCC's failure to provide a smoke free environment is endangering his health; . pillows are unavailable; the mattresses are cracked and contaminated; and cleaning supplies are not provided; LPCC does not provide adequate hygiene supplies and provide only one roll of toilet paper and one bar of soap; he has not been provided a razor, nail clippers, shampoo, or toothpaste; LPCC has refused to supply an "indigent" personal hygiene kit and that he has been forced to rely on the kindness of other inmates.
Title 42 U.S.C. § 1997e was amended by the Prison Litigation and Reform Act of 1996. Under the current version of the statute, prisoners are barred from recovering monetary damages for mental or emotional injuries "unless there is a prior showing of physical injury." Crawford-el v. Britton, 523 U.S. 574, 596, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998). The "physical injury" required by § 1997e(e) must be more than de minimis but need not be significant. Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999) (citing Siglar v. Hightower, 112 F.3d 191 (5th Cir. 1997).
Section 1997e(h) defines "prisoner" to include ". . . any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." When he filed this complaint, plaintiff was a pre-trial detainee accused of a violation of criminal law and therefore Section 1997e applies.
As shown above, plaintiff was specifically directed to provide ". . . a description of the alleged injury sustained as a result of the alleged violation[s] . . ." [Doc. 11, p. 4] Plaintiff has not alleged that he suffered from any physical injury, and thus his claim for monetary damages is legally without merit. See Herman v. Holiday, 238 F.3d 660, 666 (5th Cir. 2001) (holding that a plaintiff was not entitled to money damages as a matter of law on his claim for mental and emotional stress due to an increased risk of illness, cold showers, cold food, unsanitary dishes, insect problems, inadequate clothing, and the presence of an open cesspool near the housing unit because he did not allege any physical injuries resulting therefrom); Harper, 174 F.3d at 719 (finding that a prisoner complaining about his placement in administrative segregation failed to demonstrate a physical injury as required by § 1997e(e) sufficient to support a claim for monetary damages); Alexander v. Tippah County, Mississippi, 351 F.3d 626, 630-31 (5th Cir. 2003), cert. denied, 541 U.S. 1012, 124 S.Ct. 2071, 158 L.Ed.2d 623 (2004) (nausea and vomiting caused by raw sewage on floor of jail cell was de minimis). Plaintiff's conditions of confinement claims are frivolous and dismissal on that basis is warranted.
Plaintiff's response specified the only the following injuries: "(1) obstruction, (2) denial and obstruction of religious practice, (3) inability to pursue his 2255 pro se action in the Northern District of Georgia, (4) having his attorney-client communications regarding the instant action reviewed by the defendants, (5) having to endure cruel and unusual punishment by (a) working 16 hours/day, (b) having to perpetrate a fraud, (c) being subject to capricious enforcement by c/o's, and (d) being deprived of warmth and hygiene, and (6) by being subject to extreme duress." [doc. 16-1, pp. 4-5] The only arguable injury alleged is "extreme duress" which the undersigned interprets as a mental or emotional injury. To the extent that the deprivation of "warmth and hygiene" are alleged as physical injury, they appear to be de minimis at best.
Further, to the extent that plaintiff seeks injunctive relief with respect to his conditions of confinement claims, that claim fares no better. Plaintiff is no longer being detained at LPCC. He departed from that facility sometime in April. The transfer of a prisoner out of an allegedly offending institution generally renders his claims for injunctive relief moot. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) ( per curiam) (plaintiff's individual suit challenging parole procedures mooted by release absent "demonstrated probability" that he would again be subject to parole board's jurisdiction); Cooper v. Sheriff, Lubbock County, Tex., 929 F.2d 1078, 1081 (5th Cir. 1991) ( per curiam) (holding that prisoner transferred out of offending institution could not state a claim for injunctive relief).
In order for plaintiff's claims to remain viable, he would have to establish that the possibility of a transfer back to LPCC would make his claims capable of repetition yet evading review. See Hardwick v. Brinson, 523 F.2d 798, 800 (5th Cir. 1975).
Plaintiff must show either a "demonstrated probability" or a "reasonable expectation" that he would be transferred back to the offending institution and therefore, his claims for injunctive relief based upon the conditions of confinement at LPCC are now moot. Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982). At its most lenient, the standard is not "mathematically precise" and requires that plaintiff show a "reasonable likelihood" of repetition. Honig v. Doe, 484 U.S. 305, 318-19, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). Even under the most permissive interpretation, none of plaintiff's pleadings suggest that the constitutional violations complained of at LPCC are capable of repetition in this case. With regard to his conditions of confinement claim, his request for injunctive relief is moot and dismissal on that ground is therefore recommended.
3. Access to Courts
Plaintiff claims that the defendants have denied him access to the courts. "It has long been recognized that prisoners generally enjoy the constitutional right of access to the court." Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999). See Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). The right of access to the court is not unlimited, however, and includes "only a reasonable opportunity to file non-frivolous legal claims challenging [the prisoners'] convictions or conditions of confinement." Id. (citing Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996)). Put another way, "[w]hile the precise contours of a prisoner's right of access to the courts remain somewhat obscure, the Supreme Court has not extended this right to encompass more than the ability of an inmate to prepare and transmit a necessary legal document to a court." Brewer v. Wilkinson, 3 F.3d at 821; Lewis v. Casey, 518 U.S. at 351, 116 S.Ct. at 2179-81; Norton v. Dimazana, 122 F.3d at 290; and Eason v. Thaler, 73 F.3d 1322, 1329 (5th Cir. 1996).
In the Fifth Circuit, it has been established that access to typewriters and copy machines is not an essential part of the right of access to the courts. See Beck v. Lynaugh, 842 F.2d 759, 762 (5th Cir. 1988), (holding that denial of access to carbon paper and reproduction equipment and denial of face-to-face access to other inmates did not deprive an inmate of his right of access to the courts); and Eisenhardt v. Britton, 478 F.2d 855 (5th Cir. 1973). There simply is no constitutional right of access to carbon paper, reproduction equipment, or to face-to-face meetings with other inmates possessed by pretrial detainees or prisoners. See Beck v. Lynaugh, 842 F.2d at 762. Prisoners possess no right to the assistance of any particular other prisoner or writ writer as long as the constitutional right of access to the courts by the putative recipient of such assistance is not infringed. See Tighe v. Wall, 100 F.3d 41, 43 (5th Cir. 1996). A prisoner who knowingly and voluntarily waives appointed representation by counsel in a criminal proceeding is not entitled to access to a law library. Degrate v. Godwin, 84 F.3d at 769. Furthermore, restrictions on direct access to legal materials may be warranted when prison security is involved. See Eason v. Thaler, 73 F.3d at 1329; and Morrow v. Harwell, 768 F.2d 619, 622 (5th Cir. 1985). However, arbitrary limitations and restrictions on access to legal materials, without the assistance of persons trained in the law, and without the ability of inmates in administrative segregation to examine legal digests, hornbooks, and other legal materials firsthand is unconstitutional. See Eason v. Thaler, 14 F.3d 8, 9-10 (5th Cir. 1994), (holding that allegations of a total denial of all access to the prison law library for 25 days following a prison riot stated a constitutional violation); Pembroke v. Wood County, Texas, 981 F.2d at 229, (holding that the total denial of all access to the law library for seven months violated the plaintiff's constitutional right of access to the courts), citing Morrow v. Harwell, 768 F.2d 619, 622 (5th Cir. 1985), (holding that access to a weekly bookmobile coupled with circumscribed assistance from law students was insufficient to afford meaningful access to the courts); and Green v. Ferrell, 801 F.2d 765, 772 (5th Cir. 1986), (holding that allowing inmates to select volumes twice each week from a list of books available in the County law library and limiting inmates to no more than two volumes at a time violated the inmates' rights to meaningful access to the courts). The obligation to pay filing fees, over time if necessary, is not an unconstitutional denial of access to the courts provided that the litigant is excused from paying the fee when actually unable to do. See Norton v. Dimazana, 122 F.3d at 290-91, (upholding the constitutionality of the PLRA's filing fee requirements). Finally, prisoners possess no constitutionally-protected right to file frivolous lawsuits. See Johnson v. Rodriguez, 110 F.3d 299, 310-13 316 (5th Cir. 1997), cert. denied, 522 U.S. 995, 118 S.Ct. 559, 139 L.Ed.2d 400 (1997).
Plaintiff claims that the various deficiencies at the LPCC law library and the LPCC practices and policies have resulted in him being "(a) unable to assist his defense [presumably in the criminal matter which was pending before this court, United States of America v. Jamie Edelkind, No. 6:05-cr-60067]; (b) unable to resolve his prior conviction [presumably his convictions in the United States District Courts for the Northern District of Georgia, United States of America v. Jamie Edelkind, No. 1:03-cr-00364, and the District of Massachusetts, United States of America v. Jamie Edelkind, No. 1:04-cr-10066] which prevents him from considering a plea in his pending criminal case, (c) unable to assist in his pending appeal [in the United States First Circuit Court of Appeals, United States of America v. Jamie Edelkind, Nos. 05-2228 and 05-2125], (d) has resulted in his being improperly detained, (e) has prevented him in evaluating discovery, and (f) has interfered with his present pending matters in the United States Supreme Court." [ id., p. 6]
The undersigned has been unable to find any matters involving plaintiff pending before the United States Supreme Court. See http://search.access.gpo.gov/supreme-court/ SearchRight.asp?ct=Supreme-Courtq1=edelkindx=24y=27.
Plaintiff has not shown how his ability to prepare and transmit legal documents has in any way been inhibited. Indeed, such a claim by plaintiff is completely unpersuasive. With respect to the instant civil rights complaint, the record demonstrates that plaintiff has filed (1) an original civil rights complaint on December 19, 2005 [Doc. 1]; (2) an amended complaint on February 3, 2006 [Doc. 4]; (3) a Motion to Compel and Motion for Preliminary Injunction on March 6, 2006 [Doc. 7]; (4) a Motion for Leave to Proceed in forma pauperis on March 6, 2006 [Doc. 8]; (5) a Motion for Hearing on March 14, 2006 [Doc. 10]; (6) a Motion for an Extension of Time to Amend Complaint on April 25, 2006 [Doc. 15]; (7) a Second Amended Complaint filed on May 8, 2006 along with over 150 pages of exhibits demonstrating plaintiff's efforts to exhaust administrative remedies [Doc. 16]; (8) a notice of change of address filed on May 8, 2006 [Doc. 17]; (9) a Motion for Court Order filed on May 8, 2006 [Doc. 18]; (10) a letter to the Clerk of Court filed on May 25, 2006 [Doc. 19]; and, (11) a Motion to Compel Service filed on June 1, 2006. [Doc. 20]
With regard to the criminal charges in this District, [ United States of America v. Jamie Edelkind, No. 6:05-cr-60067] the record demonstrates that plaintiff, either on his own, or through court-appointed counsel, has filed or made (1) an oral motion to appoint co-counsel on November 16, 2005; (2) an oral motion to obtain extended access to the LPCC law library on November 16, 2005; (3) an oral motion to have visitation with his son at the LPCC on November 16, 2005; (4) a CJA financial affidavit filed on November 16, 2005 [doc. 9]; (5) a Motion to Request Appointment of Counsel filed on November 16, 2005 [doc. 10]; (6) a waiver of detention hearing filed on November 18, 2005 [doc. 6]; (7) a request for discovery filed on November 21, 2005 [doc. 16]; (8) a Response in Opposition to the Government's Motion to Continue Trial filed on December 12, 2005 [doc. 18]; (9) a Joint Status Report filed on December 9, 2005 [doc. 19]; (10) a Motion to Withdraw Robert M. Marin as attorney and for an Expedited Hearing filed on January 25, 2006 [doc. 26]; (11) an Ex Parte Motion for Hearing to Determine Status of Representation filed on February 1, 2006 [doc. 28]; (12) a Motion to Continue Trial filed on March 17, 2006 following the appointment of new counsel to represent plaintiff in the criminal proceedings [docs. 31-32]; (13) a Motion for a Bill of Particulars filed on April 3, 2006 [doc. 38]; (14) a Motion for Leave to Take Deposition of a Witness Unavailable for Subpoena filed on April 3, 2006 [doc. 39]; (15) a Motion to Dismiss for Lack of Jurisdiction filed on April 3, 2006 [doc. 40]; (16) an Objection to the Magistrate Judge's Report and Recommendation filed on April 24, 2006 [doc. 46]; (17) a Motion for Detention Hearing filed on April 25, 2006 [doc. 47]; (18) an Appeal of the Magistrate Judge's ruling on Motion for Leave to Take Deposition of Witness filed on May 5, 2006 [doc. 49]; (19) a Second Motion to Dismiss filed on May 5, 2006 [doc. 50]; (20) a Joint Status Report filed on May 12, 2006 [doc. 52]; (21) oral motions for leave to file Motion to Enforce Speedy Trial and for Prosecutorial Misconduct filed on May 17, 2006; and, (22) a Motion to Dismiss filed on June 2, 2006. [doc. 59]
With regard to the criminal conviction in the United States District Court for the District of Massachusetts [ United States of America v. Jamie Edelkind, No. 1:04-cr-10066], the PACER court records system reveals that plaintiff filed a Notice of Appeal in July, 2005. While the appeal was being prepared, plaintiff, either on his own or through counsel filed, since November, 2005, the following motions, (1) a Motion to Conform Record Pursuant to Federal Rules of Appellate Procedure Rule 10(e) filed on December 14, 2005 [doc. 113]; (2) a Motion for Leave to File Brief Reply to Government Opposition on December 15, 2005 [doc. 115]; and, (3) Motions to Recuse the Trial Judge and to Convene Hearings and letters to the court filed in February and March, 2006 [doc. 125, doc. 127, doc. 128, doc. 129].
With regard to the criminal appeals to the United States Court of Appeals for the First Circuit [ United States of America v. Jamie Edelkind, Nos. 05-2228 and 05-2125], the PACER court record system reveals that on May 8, 2006 plaintiff filed pro se Petitions for Writ of Prohibition. On May 22, 2006, Judges Selya, Lynch, and Howard denied the petition. The First Circuit's Docket Sheet reflects the following finding by the court, "As defendant is represented by court appointed counsel on these appeals, and as counsel has briefed the issue underlying defendant's pro se petition for writ of prohibition, we decline to consider defendant's pro se filing on the merits and deny it without prejudice to appropriate filings by counsel."
With regard to the criminal prosecution in the Northern District of Georgia ( United States of America v. Jamie Edelkind, No. 1:03-cr-00364), the PACER records of that court reveal that in June 2005 plaintiff filed combined pro se Motion to Withdraw and Vacate his guilty plea, Motion to Vacate Sentence and Judgment under 28 U.S.C. § 2255, and Motion to Dismiss Indictment. [doc. 63] Those motions were denied on April 18, 2006 and April 26, 2006. [docs. 72 and 73]
Finally, the undersigned notes that on April 12, 2006 plaintiff filed a pro se civil suit in the United States District Court for the Southern District of New York in the matter entitled Jamie Edelkind and Linda J. Edelkind v. Fairmont Funding, Ltd., Aurora Loan Services L.L.C., Lehman Brothers Bank, F.S.B., Lehman Brothers Holding, Inc., and Isaac Aryeh, No. 1:06-cv-02862. Plaintiff filed a pro se Motion for Injunctive Relief and Temporary Restraining Order [doc. 3], and a pro se Complaint [doc. 2]. On May 2, 2006 he filed a pro se memorandum advising the court of his address change. [doc. 4] In due course, this complaint was transferred to the United States District Court for the District of Massachusetts where it was docketed as Jamie Edelkind, et al. v. Fairmont Funding Ltd., et al., No. 1:06-cv-10868. This matter remains pending.
As shown above, the United States Supreme Court has not determined that a prisoner's right of access to the courts encompasses anything more than the ability of the inmate to prepare and transmit a necessary legal document to a court. Brewer v. Wilkinson, 3 F.3d at 821; Lewis v. Casey, 518 U.S. at 351, 116 S.Ct. at 2179-81; Norton v. Dimazana, 122 F.3d at 290; and Eason v. Thaler, 73 F.3d 1322, 1329 (5th Cir. 1996). The records of the various United States Courts, including this court, reveal that since his arrival in Louisiana in November, 2005, Mr. Edelkind has filed (or has had filed on his behalf) over forty petitions, motions, or complaints in the United States District Courts in Louisiana, Massachusetts, and New York, and in the United States First Circuit Court of Appeals. Those court records reveal further that he was represented by court-appointed counsel in the criminal prosecution in this court and by court-appointed counsel in the appeal of his Massachusetts conviction in the United States First Circuit Court of Appeals. In short, plaintiff has not shown that the defendants herein have in any way denied him his right to access the courts.
Finally, in order for plaintiff to state a claim that he was denied his constitutional right of access to the courts, he must "demonstrate that his position as a litigant was prejudiced by his denial of access to the court." Eason v. Thaler, 73 F.3d 1322, 1328 (5th Cir. 1996) ( per curiam) (citing Walker v. Navarro County Jail, 4 F.3d 410, 413 (5th Cir. 1993)). This requirement that a claimant show "actual injury" is "not satisfied by just any type of frustrated legal claim." Lewis, 518 U.S. at 354. The Supreme Court, discussing the "actual injury" requirement held that: "The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration." Id. at 355. The Court further held that this right of access to the courts "does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims." Id.
Plaintiff was specifically directed to amend his complaint to show how his position as a litigant was prejudiced. Notwithstanding this specific directive, he has failed to provideany facts concerning the specific legal work he was denied access to, or how that denial resulted in an actual injury. He offers nothing but conclusory statements to establish that his legal position as a litigant in any proceeding was prejudiced by the actions of the defendant.
In short, his access to court claims should be dismissed as frivolous.
4. Miscellaneous Claims a. Practice of Religion
Plaintiff claimed that during the period from November 4, 2005 — November 8, 2005 LPCC failed to provide any Kosher meals. Plaintiff also claimed that he has been denied his rights under the RLUIPA [Religious Land Use and Institutionalized Persons Act, 42 U.S.C.A. § 2000cc-1] because LPCC failed to provide his religious diet and otherwise interfered with his ability to practice religious observances.Inmates, such as the plaintiff, clearly retain protections afforded by the First Amendment, including its directive that no law shall prohibit the free exercise of religion. Nevertheless, lawful incarceration, by its very nature, brings about the necessary withdrawal or limitation of many privileges and rights. The limitations on the exercise of constitutional rights arise both from the fact of incarceration and from valid penological objectives. See O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987).
The standard for evaluating an inmate's claim that a prison regulation or practice improperly restricts his right to the free exercise of his religion requires the court to evaluate the regulation or practice in order to determine whether it "is reasonably related to legitimate penological interests." Id. at 349. The "reasonableness" of a regulation or practice is evaluated based upon the following inquiry:
(1) Is there a valid, rational connection between the prison practice and the legitimate governmental interest put forward by prison officials to justify the practice?
(2) Are there alternative means of exercising the right that remain open to prison inmates, that is, are inmates allowed other means to express their religious beliefs on a general level?
(3) What impact will accommodation of the asserted constitutional right have on guards and other inmates and on the allocation of prison resources generally?
(4) Are alternatives to the prison practice available that would accommodate the inmates' rights at a de minimis cost to valid penological interests? Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), Green v. Polunsky, 229 F.3d 486, 489-90 (5th Cir. 2000). Each factor need not be considered, and the factors need not be evaluated evenly. Scott v. Mississippi Dep't of Corrections, 961 F.2d 77, 80 (5th Cir. 1992).
Plaintiff claims that his right to freely exercise his religion has been impaired but he does not provide any factual support for this conclusory allegation. Nevertheless, the undersigned observes that with regard to the first prong of the Turner test, plaintiff has not alleged that Jewish clergy are barred from LPCC; nor has he alleged that Jewish worship services have been prohibited by any practice or regulation of the facility. According to the evidence available to the court, the facility is unable to locate a Jewish clergyman who would be willing to minister to the LPCC inmates.
See doc. 16-2, Exhibits, Volume 2 — General Request Forms. In response to plaintiff's request, LPCC Chaplain Vic Hummert provided the address and telephone number of the Aleph Institute so that plaintiff could obtain the appropriate liturgical texts. On November 21, 2005, Chaplain Hummert further noted, "Dietary needs are met fairly well, thanks to Lt. LeJeune. Since there is no rabbi or Jewish community present in Lafayette I have contacted the Aleph Institute in Florida to offer assistance."
The second and forth prongs of the Turner test, address whether or not "alternative means" of practicing Judaism have been made available to the plaintiff. In analyzing the availability to inmates of "alternative means" of exercising their religion, however, "[t]he pertinent question is not whether the inmates have been denied specific religious accommodations, but whether, more broadly, the prison affords the inmates opportunities to exercise their faith." Freeman v. Texas Department of Criminal Justice, 369 F.3d 854, 861 (5th Cir. 2004); Adkins v. Kaspar, 393 F.3d 559, 564 (5th Cir. 2004). The record herein establishes that plaintiff was not denied the right to practice his religion.
In O'Lone v. Estate of Shabazz, supra., the inmate-plaintiffs complained that they were not allowed to attend the weekly Muslim congregational service held on Friday evenings because of their assignments to work details outside the main prison grounds. O'Lone v. Estate of Shabazz, 482 U.S. at 345-46. The Supreme Court considered the evidence supplied by the prison administration regarding security needs, rehabilitative needs, and the impact of alternative accommodations; this evidence was evaluated in the light of those rights actually retained by the inmates to practice their religion. The Court then noted that the plaintiff-inmates were not deprived of all forms of religious exercise. Based upon these facts, the Supreme Court held that the "ability on the part of [the inmates] to participate in other religious observances of their faith supports the conclusion that the restrictions at issue here were reasonable." Id. at 352.
Like the plaintiffs in O'Lone v. Estate of Shabazz, this plaintiff has not, nor can he show that he has been deprived of all means of religious expression. Plaintiff does not contend that his right to worship, either alone, or with a group of his co-religionists, has in any way been curtailed by the LPCC Administration; instead, he apparently faults LPCC for not providing scheduled religious services conducted by Jewish clergy, a situation over which the facility apparently has no control.
In short, plaintiff has failed to demonstrate that his First Amendment free-exercise right has been violated. See Mumin v. Phelps, 857 F.2d 1055, 1056 (5th Cir. 1988) (holding that even a prison regulation which prohibited Muslim inmates from attending Friday services was not unconstitutionally restrictive because it satisfied all four "reasonableness" considerations).
"[T]he loss of [plaintiff's] absolute freedom of religious expression is but one sacrifice required by [his] incarceration. . . ." Scott v. Mississippi Dep't of Corrections, 961 F.2d at 82. See Abdur-Rahman v. Michigan Dep't of Corrections, 65 F.3d 489, 492 (6th Cir. 1995) ("Reasonable time, place, or manner restrictions upon communal religious gatherings do not necessitate the identification of a compelling state interest.") Accordingly, the undersigned concludes that plaintiff's First Amendment free exercise of religion claim is frivolous.
Finally, to the extent that this complaint may be liberally construed to raise an equal protection complaint, plaintiff has again failed to state a claim upon which relief may be granted. To state an equal protection claim under § 1983, a plaintiff must show that "the governmental action in question classif[ies] or distinguish[es] between two or more relevant persons or groups[,] . . . or . . . impermissibly interferes with a fundamental right." Edwards v. Johnson, 209 F.3d 772, 780 (5th Cir. 2000) (internal quotations and citations omitted). The plaintiff must specifically demonstrate that the prison officials acted with a discriminatory purpose. Woods v. Edwards, 51 F.3d 577, 580 (5th Cir. 1995). "Discriminatory purpose in an equal protection context implies that the decision maker selected a particular course of action at least in part because of, and not simply in spite of, the adverse impact it would have on an identifiable group." Id.; Edwards v. Johnson, 209 F.3d at 780.
While plaintiff and his co-religionists may be an identifiable group within the prison, he has failed to show that the policy or practice complained of was enacted with any discriminatory purpose. See Muhammad v. Lynaugh, 966 F.2d 901, 903 (5th Cir. 1992) (finding no constitutional violation where plaintiffs were "given the same reasonable opportunity to practice their faith as that provided other religious groups"). Because Plaintiff has failed to demonstrate a violation of his individual constitutional rights or a violation of the rights of any or all Jewish inmates housed in LPCC to practice their religion, his equal protection claim (to the extent that such a claim has been asserted) has no merit.
Finally, plaintiff claims that his requests for a Kosher diet went unheeded for a period of five days upon his arrival at LPCC in November. Plaintiff does not claim that he was forced to consume food in violation of his religion's tenets; rather, he suggests that he had to forego some meals because they were not prepared according to the tenets of his religion. The fact that an inmate misses an occasional meal does not necessarily implicate the inmates's constitutional rights. See Palmer v. Johnson, 193 F.3d 346, 352 (5th Cir. 1999); Green v. Ferrell, 801 F.2d 765, 770 (5th Cir. 1986); see also Talib v. Gilley, 138 F.3d 211, 214 n. 3 (5th Cir. 1998) ("Missing a mere one out of every nine meals is hardly more than that missed by many working citizens over the same period.").
At best, plaintiff has alleged that he missed some meals. He does not state any additional facts that would indicate that he faced a substantial risk of harm because of the incident. Accordingly, he has failed to state a cognizable claim against defendants arising from his deprivation of several meals. Oladipupo v. Austin, 104 F.Supp.2d 626, 640 (W.D.La. 2000).
b. Grievances
Plaintiff's claim that the LPCC administration has failed to respond to his grievances is belied by the documentary evidence he has provided. The evidence submitted by plaintiff establishes that plaintiff was provided prompt responses to many of his requests and grievances. Plaintiff deluged the LPCC Administration with requests and complaints on a daily basis. Plaintiff seems to believe that because the defendants' responses to his ARPs were unacceptable to him that the entire grievance process is thus inadequate. He is wrong. There appears to be no factual basis for this claim.
In any event, even had all of plaintiff's grievances been totally ignored, he would still not be able to state a claim for relief. In Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), the Supreme Court narrowed the due process protections afforded to prisoners. Prisoners have no federally-protected right to have grievances investigated and resolved. Such rights, if any, are provided by state law or regulation and the mere failure of an official to follow state law or regulation, without more, does not violate the constitution and is thus not actionable under Section 1983. See Taylor v. Cockrell, 2004 WL 287339 at *1 (5th Cir. Feb.12, 2004) (not designated for publication) (holding that "claims that the defendants violated . . . constitutional rights by failing to investigate . . . grievances fall short of establishing a federal constitutional claim"). See also Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 138, 97 S.Ct. 2532, 53 L.Ed.2d 629 (Burger, C.J., concurring) (applauding the institution of grievance procedures by prisons but not suggesting that such procedures are constitutionally required); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996) ("[A] state's inmate grievance procedures do not give rise to a liberty interest protected by the Due Process Clause."); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) ("[T]he constitution creates no entitlement to grievance procedures or access to any such procedure voluntarily established by a state."); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (quotation omitted) (holding that a prison grievance procedure is not a substantial right and "does not give rise to a protected liberty interest requiring the procedural protections envisioned by the fourteenth amendment"); and Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) ("There is no legitimate claim of entitlement to a grievance procedure.").
Plaintiff's claim that the defendants ignored his grievances is frivolous. He has failed to state a claim for which relief may be granted.
c. Other Miscellaneous Complaints
Plaintiff concluded his second amended complaint with a list of "new allegations." Some of these "new allegations" have been addressed in the conditions of confinement, access to court, or practice of religion sections above and need no further discussion. [ id., p. 7] The remaining "new claims," ". . . (1) suborning fraud (HCA documentation fraud), (2) malicious prosecution (two disciplinary actions), and, (3) peonage (forcing plaintiff to work 16 hours without pay in order to eat) . . ." are conclusory allegations with no factual support. These unsupported allegations are insufficient to state claims for which relief may be granted and dismissal on that basis is recommended. Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995). See also Wesson v. Ogleby, 910 F.2d 278, 281 (5th Cir. 1990) ("An IFP complaint that recites bare legal conclusions, with no suggestion of supporting facts, or that postulates facts of an entirely fanciful nature, is a prime candidate for dismissal under [§ 1915(d)(2)(B)]."
New Claim 4 — failure to provide religious observance opportunity, has been discussed in Section 4(a) above. New Claim 5 — failure to properly classify plaintiff; New Claim 8 — inadequate recreational opportunity; New Claim 9 — lack of adequate facilities (cell size, windows, etc.); and New Claim 14 — refusal to address issues of drug and tobacco use at LPCC have been addressed in Section 2, Conditions of Confinement. New Claim 6 — failure to provide for unmonitored legal calls; New Claim 7 — repeated opening of clearly marked legal mail; New Claim 10 — lack of copy service; New Claim 11 — lack of access to courts; and, New Claim 12 — lack of mailing supplies were addressed in Section 3, Access to Courts. Finally, New Claim 13 — refusal to address past violations in ARP's, was addressed in Section 4(b) above.
Accordingly,
IT IS RECOMMENDED that plaintiff's civil rights complaint be DISMISSED WITH PREJUDICE as frivolous and for failing to state a claim on which relief may be granted in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).
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 finding 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).