Opinion
CIVIL ACTION NO. 20-2521 SECTION "D"(4)
11-02-2020
JOSEPH ZENO v. TERREBONNE PARISH CRIMINAL JUSTICE COMPLEX
REPORT AND RECOMMENDATION
This matter was referred to a United States Magistrate Judge to conduct a hearing, including an evidentiary hearing, if necessary, and to submit proposed findings and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), § 1915e(2), and § 1915A, and as applicable, 42 U.S.C. § 1997e(c)(1) and(2). Upon review of the record, the Court has determined that this matter can be disposed of without an evidentiary hearing.
I. Factual and Procedural Background
Plaintiff, Joseph Zeno ("Zeno"), is a pretrial detainee housed in the Terrebonne Parish Criminal Justice Complex ("TPCJC"). Zeno filed this pro se and in forma pauperis complaint pursuant to 42 U.S.C. § 1983 against the TPCJC claiming that the lockdown cells and nearby dayroom and shower areas are unsanitary and not cleaned properly or regularly by the inmate-trustee cleaning crews. In addition, because he is in lockdown, he was denied his own cleaning supplies, such as a broom or mop. Zeno seeks an order to have the facility properly and regularly clean the dayrooms and showers and properly clean the lockdown cells when one inmate is removed and another is placed in the cell.
Rec. Doc. No. 4-1, p. 3. Zeno indicates that his conviction is "pending." Id.
II. Standards of Review for Frivolousness
Pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A and 42 U.S.C. § 1997e(c), the Court is required 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, 325 (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 when it lacks an arguable basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 324-25 (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 indisputably 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) (quoting Davis v. Scott, 157 F.3d 882, 889 (5th Cir. 1998)). 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) (citing Neitzke, 490 U.S. at 327-28). Thus, the Court must determine whether plaintiff's claims are based on an indisputably meritless legal theory or clearly baseless factual allegations. Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994); Jackson v. Vannoy, 49 F.3d 175, 176-77 (5th Cir. 1995); Moore v. Mabus, 976 F.2d 268, 269 (5th Cir. 1992).
III. Analysis
A. Terrebonne Parish Criminal Justice Complex
Zeno named the TPCJC as the sole defendant because that is the facility where he is housed and which he seeks to have cleaned and sanitized. However, the jail itself is not a proper defendant, and the claims against it must be dismissed as frivolous and otherwise fail to state a claim for which relief can be granted.
Section 1983 imposes liability on any "person" who violates someone's constitutional rights under color of law. 42 U.S.C. § 1983; see Will v. Mich. Dep't of St. Police, 491 U.S. 58 (1989). Under federal law, a county or parish prison facility simply is not recognized as a "person" within the meaning of the statute. Douglas v. Gusman, 567 F. Supp.2d 877, 892 (E.D. La. 2008) (Order adopting Report and Recommendation) (citing U.S. ex rel. Arzonica v. Scheipe, 474 F.2d 720, 721 (3rd Cir. 1973)); Cullen v. DuPage County, No. 99-1296, 1999 WL 1212570, at *1 (N.D. Ill. Dec. 14, 1999); Whitley v. Westchester County Corr. Facility Admin., No. 97-0420, 1997 WL 659100, at *6 (S.D.N.Y. Oct. 22, 1997); Powell v. Cook County Jail, 814 F. Supp. 757, 758 (N.D. Ill. 1993); Hancock v. Washtenaw County Prosecutor's Office, 548 F. Supp. 1255, 1256 (E.D. Mich. 1982).
In addition, a parish prison is not a proper defendant because it lacks capacity to sue or be sued as required by Fed. R. Civ. P. 17(b). An entity's capacity to be sued is determined by reference to the law of the state in which the district court sits. Fed. R. Civ. P. 17(b). Although the Louisiana courts have not ruled on the issue of whether a parish jail is a suable entity, this Court must look to Louisiana law to determine if a jail can itself be sued.
To possess such a capacity under Louisiana law, 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. Louisiana law, however, divides the responsibility for its parish jails. The parish is charged with its jails' physical maintenance, La. Rev. Stat. Ann. § 15:702, and the sheriff of each parish has the duty to administer and operate the jails, La. Rev. Stat. Ann. § 15:704. The office of sheriff is a constitutionally created office in Louisiana, existing separately from the parish government. La. Const. art. 5 § 27; see Langley v. City of Monroe, 582 So. 2d 367, 368 (La. App. 2nd Cir. 1991) (holding that the parish could not be liable for injuries attributed to the sheriff). Thus, in Louisiana, jail facilities are not "legally empowered to do" anything independently of either the respective parish officials or the parish sheriff. See Roberts v. Sewerage and Water Bd. of New Orleans, 634 So. 2d 341, 347 (La. 1994).
In addition, "a prison or jail or its administrative departments are not entities that can be sued under Section 1983 because they are not juridical entities under state law capable of being sued and/or because they are not persons for purposes of suit under Section 1983 as the statute and case law define that term." Douglas, 567 F. Supp.2d at 892. In other words, a parish jail is "not an entity, but a building." See Jones v. St. Tammany Parish Jail, 4 F. Supp.2d 606, 613 (E.D. La. 1998) (dismissing with prejudice the St. Tammany Parish Jail as an improper defendant); see also, Kerr v. Orleans Parish Sheriff's Office Prison, No. 15-0746, 2015 WL 4755174 (E.D. La. Aug, 10, 2015).
For these reasons, the TPCJC is not a person or suable entity to be held liable under § 1983. The claims against the TPCJC are frivolous and otherwise fail to state a claim for which relief can be granted and should be dismissed pursuant to 28 U.S.C. § 1915, § 1915A and 42 U.S.C. § 1997e.
B. Conditions of Confinement
Even if Zeno could identify a proper defendant, his claims still are frivolous because he has not alleged a constitutional violation arising from the conditions of his confinement to state a claim under § 1983. The Eighth Amendment's prohibition on "cruel and unusual punishments" applies to both convicted and pretrial inmates and forbids conditions of confinement "which are incompatible with 'the evolving standards of decency that mark the progress of a maturing society' . . . or which 'involve the unnecessary and wanton infliction of pain.'" Estelle v. Gamble, 429 U.S. 97, 102-103 (1976) (citations omitted). "[C]onditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society." Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
An official is deliberately indifferent to an inmate's health and safety in violation of the Eighth Amendment "only if he knows that the inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Farmer v. Brennan, 511 U.S. 825, 847 (1994); Jones v. Greninger, 188 F.3d 322, 326 (5th Cir. 1999). "Deliberate indifference cannot be inferred merely from a negligent or even a grossly negligent response to a substantial risk of harm." Thompson v. Upshur County, 245 F.3d 447, 459 (5th Cir. 1991). The plaintiff must prove facts sufficient to show "at a minimum, that the prison officials realized there was imminent danger and have refused--consciously refused, knowingly refused--to do anything about it." Campbell v. Greer, 831 F.2d 700, 702 (7th Cir. 1987).
Thus, to state a claim under § 1983 arising from the sanitation of his cell area, Zeno must have alleged the requisite knowledge or personal involvement necessary to state a § 1983 claim against a prison official, if one had been named as defendant. See Farmer, 511 U.S. at 847; Douthit v. Jones, 641 F.2d 345, 346 (5th Cir. 1981) (a defendant is liable under § 1983 only if he was "personally involved in the acts causing the deprivation of his constitutional rights or a causal connection exists between an act of the official and the alleged constitutional violation."). Zeno has not, however, indicated that the prison officials were aware of the alleged unsanitary condition of his cell or the alleged inadequacy of the cleaning by other inmates in the common areas or showers, or any impact either may have had on him.
In the grievance form attached to his complaint, he only complains that the hatch hole, through which food is served, is not regularly cleaned to avoid the possible spread of Covid-19. This is not the same as the claims before the Court nor did the form seem to place the defendants on notice of the particular sanitation problems urged in this federal complaint. Nevertheless, assuming that unsanitary conditions existed, Zeno he has not alleged a physical impact or illness associated with the alleged conditions or that the jail officials intended a risk of serious harm to his person, or intentionally ignored that risk, to state a constitutional violation. See McCarty v. McGee, No. 06cv113, 2008 WL 341643, at *3 (S.D. Miss. Feb. 5, 2008) ("Plaintiff's claim that the shower he was forced to share with other inmates is polluted and covered in mold and fungus, causing him to catch athlete's foot and ringworm, fails to rise to the level of a constitutional violation.").
Furthermore, the federal courts have long recognized that serving time in prison "is not a guarantee that one will be safe from life's occasional inconveniences." Holloway v. Gunnell, 685 F.2d 150, 156 (5th Cir. 1982). The courts also have repeatedly held "that the Constitution does not mandate prisons with comfortable surroundings or commodious conditions." Talib, 138 F.3d at 215 (citing Rhodes, 452 U.S. at 349); accord Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008). In keeping with this philosophy, the federal courts have recognized that certain institutional problems such as dampness, mold, and stale air do not amount to a constitutional violation. See, e.g., White v. Gusman, No. 14-2131, 2014 WL 6065617, at *1 (E.D. La. Nov. 12, 2014); Harrison v. Cox, No. 12-1813, 2013 WL 620799, at *5 (W.D. La. Jan.16, 2013), adopted, 2013 WL 622399, at *1 (W.D. La. Feb. 15, 2013); Clark v. Gusman, No. 11-2673, 2012 WL 1825306, at *5 (E.D. La. Mar. 29, 2012), adopted, 2012 WL 1825302, at *1 (E.D. La. May 18, 2012). The mere presence of mold or need for daily cleaning in a prison setting simply does not render an inmate's confinement unconstitutional. See, e.g., Eaton v. Magee, No. 10-112, 2012 WL 2459398, at *5 (S.D. Miss. Jun. 27, 2012) ("Plaintiff's claim that the bathroom and shower area are unsanitary and contain black mold fails to rise to the level of a constitutional violation."); Barnett v. Shaw, No. 11-0399, 2011 WL 2200610, at *2 (N.D. Tex. May 18, 2011) (allegation of "excessive amount of black mold in the showers and sinks" was insufficient to raise a claim for constitutional violation), adopted, 2011 WL 2214383, at *1 (N.D. Tex. Jun. 7, 2011); Reynolds v. Newcomer, No. 09-1077, 2010 WL 234896, at *10 (W.D. La. Jan. 19, 2010) ("the presence of black mold in living areas, eating areas, and shower areas" are "no more than a de minimis level of imposition with which the Constitution is not concerned.").
Zeno's claims are frivolous and otherwise fail to present a claim for which relief can be granted under § 1983. The claims should be dismissed for this reason under 28 U.S.C. § 1915, § 1915A, and 42 U.S.C. § 1997e.
IV. Recommendation
It is therefore RECOMMENDED that Joseph Zeno's § 1983 complaint against the defendant, Terrebonne Parish Criminal Justice Complex, be DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915, § 1915A and 42 U.S.C. § 1997e as frivolous and otherwise for failure to state a claim for which relief can be granted.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996).
Douglass referenced the previously applicable ten-day period for the filing of objections. Effective December 1, 2009, 28 U.S.C. § 636(b)(1) was amended to extend the period to fourteen days.
New Orleans, Louisiana, this 2nd day of November, 2020.
/s/ _________
KAREN WELLS ROBY
CHIEF UNITED STATES MAGISTRATE JUDGE