Opinion
Civil Action No. 05-0895-M, SECTION P.
August 9, 2005
MEMORANDUM ORDER
Before the court is the civil rights complaint ( 42 U.S.C. § 1983) of pro se plaintiff Lonnie Poydras, filed in forma pauperis on May 12, 2005. Plaintiff is an inmate in the custody of the Louisiana Department of Public Safety and Corrections. He is incarcerated at the Madison Parish Detention Center (MPDC), Tallulah, Louisiana and in this suit complains of conditions of confinement at that institution. Plaintiff named the MPDC, Warden Shivers, and Corrections Officers Shane Johnson and Captain Jenkins as his defendants.
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 complains that he, a non-smoker, has been confined in a dormitory where 55 out of the 59 inmates are smokers. He claims that he has been forced to endure these conditions since March, 2002. He claims that his exposure to smoke has caused numerous physical maladies including loss of weight, respiratory problems, and chest pains. He claims that despite his requests, he has been refused a transfer.
LAW AND ANALYSIS 1. Rule 8 Considerations
Rule 8 of the Federal Rules of Civil Procedure does not require explicit detail, but it does require a plaintiff to allege specific facts which support the conclusion that his constitutional rights were violated by each person who is named as defendant. This conclusion must be supported by specific factual allegations stating the following:
(1) the name(s) of each person who allegedly violated plaintiff's constitutional rights;
(2) a description of what actually occurred or what each defendant did to violate plaintiff's rights;
(3) the place and date(s) that each event occurred; and
(4) a description of the alleged injury sustained as a result of the alleged violation.
Plaintiff's complaint does not comply with the requirements of Rule 8 as outlined above.
Plaintiff essentially argues that the defendants violated his Eighth Amendment rights against cruel and unusual punishment by exposing him to environmental tobacco smoke (ETS). In Helling v. McKinney, 509 U.S. 25, 35-36, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993), the Supreme Court addressed the issue of exposure to ETS and held that the prisoner stated a cause of action under the Eighth Amendment when he alleged that prison officials were deliberately indifferent to his serious medical needs by exposing him to ETS which posed an unreasonable risk to his health. In Rochon v. City of Angola, 122 F.3d 319, 320 (5th Cir. 1997) the Fifth Circuit recognized that a prisoner states an Eighth Amendment claim if he alleges that he was exposed to ETS for a sustained time, even if the ETS had not already harmed his health. Plaintiff should amend his complaint to demonstrate facts supporting his claim that the defendants were deliberately indifferent to his health and safety.
2. The Defendants
Plaintiff has named Warden Shivers as a defendant. Plaintiff is hereby advised: "Supervisory officials may be held liable only if: (i) they affirmatively participate in acts that cause constitutional deprivations; and (ii) implement unconstitutional policies that causally result in plaintiff's injuries." Mouille v. City of Live Oak, Tex., 977 F.2d 924, 929 (5th Cir. 1992), cert. denied, 508 U.S. 951, 113 S.Ct. 2443, 124 L.Ed.2d 660 (1993). "Vicarious liability does not apply to § 1983 claims." Pierce v. Texas Dept. of Crim. Justice, Inst. Div., 37 F.3d 1146, 1150 (5th Cir. 1994), cert. denied, 514 U.S. 1107, 115 S.Ct. 1957, 131 L.Ed.2d 849 (1995). "Personal involvement is an essential element of a civil rights cause of action." Thompson v. Steele, 709 F.2d 381, 382 (5th Cir.), cert. denied, 464 U.S. 897, 104 S.Ct. 248, 78 L.Ed.2d 236 (1983). In other words, to the extent that plaintiff seeks to name supervisory officials, such as the Warden as a defendant, he must allege facts sufficient to demonstrate either personal involvement or the implementation of unconstitutional policies by those defendants.
3. Exhaustion of Administrative Remedies
Plaintiff claims that he filed an Administrative Remedies Grievance but his allegation concerning the administration's response is somewhat ambiguous.
He has not demonstrated that he has exhausted all available administrative remedies before proceeding in this court. The Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997e(a), which makes the exhaustion requirement mandatory in prison conditions cases, provides as follows:
(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.
Plaintiff should provide the court with proof that he filed the Grievances he claims to have filed and establish the date(s) upon which he filed each administrative remedy request. The court notes that most institutions employ a multi-stepped procedure which requires an inmate to appeal negative decisions to progressively higher authorities. Exhaustion, as defined by 42 U.S.C. § 1997e, does not occur until ALL AVAILABLE STEPS have been utilized.
4. Remedy
Plaintiff has not indicated the nature of the remedy he seeks. He should amend his complaint and set forth the remedy he desires.
Before this court determines the proper disposition of plaintiff's claims, plaintiff should be given the opportunity to remedy the deficiencies of his complaint. Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). Accordingly;
THE CLERK IS DIRECTED to serve the plaintiff with a copy of this Order.
IT IS ORDERED that plaintiff amend his complaint within thirty (30) days of the filing of this order to cure the deficiencies as outlined above, and alternatively, dismiss those claims plaintiff is unable to cure through amendment. Specifically, but not exclusively, plaintiff shall precisely state what each named defendant did to violate plaintiff's constitutional rights with respect to each separate incident alleged.
Plaintiff shall also provide evidence of his attempts to exhaust ALL administrative remedies PRIOR to the filing of this lawsuit. Failure to comply with this order may result in dismissal of this action as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) or under Rule 41(b) or 16(f) of the Federal Rules of Civil Procedure. Plaintiff is further required to notify the Court of any change in his address under U.L.R. 41.3W.
THUS DONE AND SIGNED.