KAREN WELLS ROBY, Magistrate Judge.
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
The plaintiff, David McClebb ("McClebb"), is an inmate currently incarcerated in the House of Detention ("HOD") within the Orleans Parish prison system.
McClebb alleges that the prison is overcrowded, and the prison officials place 13 to 14 inmates in the ten-man cells. He alleges that when state health inspectors visit the prison, inmates are hidden in the boiler rooms and basement areas so the overcrowding is not discovered.
He also complains that the prison does not provide roll-in kits, which should provide each inmate with a blanket, two towels, a cup, toothpaste, a toothbrush, soap, and a roll of tissue.
He further alleges that the building is or should be condemned, because of the mold and mildew in the shower, which can cause staff infections. He further indicates that the inmates are not provided with cleaning supplies to clean the tiers and living areas, which also results in failed tier inspections.
He also complains that the inmates are not given ice to have cold drinking water during the day, even in the hot months. He also claims that the inmates are not taken for outdoor recreation, and there is no space for walking or exercise.
As a result of these conditions of his confinement, he seeks injunctive relief for the prison staff to correct the listed problems and monetary damages. McClebb alleges on the form complaint that he exhausted administrative remedies at the prison.
Title 28 U.S.C. §§ 1915A and 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 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). 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 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); see Jackson v. Vannoy, 49 F.3d 175, 176-77 (5th Cir. 1995); Moore v. Mabus, 976 F.2d 268, 269 (5th Cir. 1992).
As an initial matter, § 1983 provides a federal cause of action against any
McClebb here has named the OPP Staff as one defendant. He has not identified any particular member of the OPP Staff as a person to be held accountable in this instance. However, a prison and its administrative departments are not entities that can be sued under § 1983, because they are not juridical entities under state law capable of being sued and therefore are not "persons" for purposes of suit under § 1983, as the statute and case law define that term. Cage v. Kent County Corr. Facility, 113 F.3d 1234, 1997 WL 225647, at *1 (6th Cir. 1997); Johnson v. LCDC Med. Staff, No. 09cv13, 2009 WL 1256906, at *2 (E.D. Tenn. Apr. 29, 2009) (suit against medical staff dismissed because "the Medical Staff is not a suable entity under § 1983"); Holifield v. Mobile County Sheriff's Dep't, No. 07-0321-CG-C, 2008 WL 2246961, at *5 (S.D. Ala. May 29, 2008) (suit dismissed because the prison medical care unit "does not appear to be a distinct legal entity that is subject to suit"); Cullen v. DuPage County, No. 99C1296, 1999 WL 1212570, *1 (N.D. Ill. Dec. 14, 1999); Whitley v. Westchester County Corr. Facility Admin., No. 97CIV0420(SS), 1997 WL 659100, at *6 (S.D.N.Y. Oct. 22, 1997); Sponsler v. Berks County Prison, No. 95-1136, 1995 WL 92370, at *1 (E.D. Pa. Feb. 28, 1995); Powell v. Cook County Jail, 814 F.Supp. 757, 758 (N.D. Ill.1993).
Thus, McClebb cannot assert a claim against the OPP Staff under § 1983 and the claims against that defendants should be dismissed as frivolous. Carter v. Strain, No. 09-3401, 2009 WL 2390808, at *3 (E.D. La. July 31, 2009); August v. Gusman, No. 06-3962, 2008 WL 466202, at *7 (E.D. La. Feb. 13, 2008); Staritz v. Valdez, No. 06-CV-1926, 2007 WL 1498285, at *2 (N.D. Tex. May 21, 2007); Banks v. United States, No. 05-6853, 2007 WL 1030326, at *11 (E.D. La. Mar. 28, 2007).
A supervisory official, like Sheriff Gusman, cannot be held liable pursuant to § 1983 under any theory of respondeat superior simply because an employee or subordinate at the prison allegedly violated the plaintiff's constitutional rights. See Alton v. Tex. A&M Univ., 168 F.3d 196, 200 (5th Cir. 1999); see also Baskin v. Parker, 602 F.2d 1205, 1220 (5th Cir. 1979). The Sheriff may only be liable under § 1983 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." Douthit v. Jones, 641 F.2d 345, 346 (5th Cir. 1981); Smith v. Brenoettsy, 158 F.3d 908, 911 (5th Cir. 1998) (citing Sims v. Adams, 537 F.2d 829, 831 (5th Cir. 1976)); see also Watson v. Interstate Fire & Cas. Co., 611 F.2d 120 (5th Cir. 1980). This personal involvement also must include a showing of deliberate indifference as set forth above.
McClebb does not allege that Sheriff Gusman was present for, or personally involved in, the alleged concerns he has about the jail or in the failure to provide the listed items and supplies. McClebb also has not alleged that he has suffered any injury as a result of any directive, supervised training or activity, or other policy set forth by the Sheriff which would create vicarious liability. See Thompson v. Upshur County, 245 F.3d 447, 459 (5th Cir. 1991); Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992); see also City of St. Louis v. Praprotnik, 485 U.S. 112, 124-25 (1988); Bennett v. Pippin, 74 F.3d 578, 586 (5th Cir. 1996).
Instead, McClebb appears to have named Sheriff Gusman simply, because he is the parish sheriff. Thus, McClebb's claims against Sheriff Gusman are frivolous and otherwise fail to state a claim for which relief can be granted pursuant to § 1915(e), § 1915A, and § 1997e.
Nevertheless, even if McClebb could state a basis for liability against Sheriff Gusman or identify a particular person who could be held liable under § 1983, his conditions of confinement claims are still frivolous for the following reasons.
McClebb complains that the living conditions in HOD are unsanitary and overcrowded. "Prison conditions constitute cruel and unusual punishment if they involve the `wanton and unnecessary infliction of pain [or if they are] grossly disproportionate to the severity of the crime warranting imprisonment.'" Hamilton v. Lyons, 74 F.3d 99, 103-04 (5th Cir. 1996) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)); see also Estelle v. Gamble, 429 U.S. 97, 103 (1976); Hutto v. Finney, 437 U.S. 678, 687 (1978).
Like other Eighth Amendment claims, a conditions of confinement claim must satisfy tests for both objective and subjective components. Davis v. Scott, 157 F.3d 1003, 1006 (5th Cir. 1998) (citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)); accord Wilson v. Seiter, 501 U.S. 294, 298-99 (1991); Downey v. Denton County, 119 F.3d 381, 385-86 (5th Cir. 1997). To succeed on a claim of unconstitutional conditions of confinement, this Court "must ask if `the officials act[ed] with a sufficiently culpable state of mind' and if the alleged wrongdoing was objectively `harmful enough' to establish a Constitutional violation." Hudson, 503 U.S. at 8 (quoting Wilson, 501 U.S. at 298, 303). If the Court finds that either the subjective or objective component of the test is not met, it need not address the other component. Davis, 157 F.3d at 1006.
With respect to the objective component, the Supreme Court in Wilson noted that routine discomfort is part of the penalty that convicted prisoners pay for having committed crimes. Therefore, "only those deprivations denying `the minimal civilized measure of life's necessities' are sufficiently grave to form the basis of an Eighth Amendment violation." Wilson, 501 U.S. at 298 (quoting Rhodes, 452 U.S. at 347). "[E]xtreme deprivations are required to make out a conditions-of-confinement claim." Hudson, 503 U.S. at 9.
With respect to the subjective component of the test, the Supreme Court has applied a deliberate indifference standard. Wilson, 501 U.S. at 303. "Deliberate indifference" means that a prison official is liable "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).
Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998) (citing Farmer, 511 U.S. at 837). "Under exceptional circumstances, a prison official's knowledge of a substantial risk of harm may be inferred by the obviousness of a substantial risk." Id. (citing Farmer, 511 U.S. at 842 n.8).
Southard v. Tex. Bd. of Criminal Justice, 114 F.3d 539, 551 (5th Cir. 1997) (citing Bd. of County Comm'rs v. Brown, 520 U.S. 397 (1997)) (citations omitted) (emphasis added).
McClebb complains that the living conditions of the facility were substandard. The conditions described by the plaintiff, while plainly not comfortable or pleasant, do not rise to a level of seriousness constituting a constitutional violation. He does not allege a serious harm or risk of serious harm in the constitutional sense, and the court can perceive none under the circumstances described in the plaintiff's claims. Short term sanitation problems alone, although admittedly unpleasant, do not amount to constitutional violations. Whitnack v. Douglas County, 16 F.3d 954, 958 (8th Cir. 1994); Knop v. Johnson, 977 F.2d 996, 1013 (6th Cir. 1992); Robinson v. Illinois State Corr. Ctr., 890 F.Supp. 715, 720 (N.D. Ill. 1995). "[J]ails must provide only reasonably adequate hygiene and sanitation conditions." Burton v. Cameron County, 884 F.Supp. 234, 241 (S.D. Tex.1995) (citing Green v. Ferrell, 801 F.2d 765, 771 (5th Cir.1986)); accord Benshoof v. Layton, No. 09-6044, 2009 WL 3438004, at *4 (10th Cir. Oct. 27, 2009); Gates v. Cook, 376 F.3d 323, 342 (5th Cir. 2004).
None of McClebb's allegations about the conditions at HOD establish constitutional violations. See Davis, 157 F.3d at 1006 (no constitutional injury when plaintiff was confined in "filthy" cell for three days) (citing Smith v. Copeland, 87 F.3d 265, 269 (8th Cir. 1996) (no Eighth Amendment violation when prisoner was exposed for four days to raw sewage from overflowed toilet in his cell)); Causey v. Allison, No. 08CV155-RHW, 2008 WL 4191746, at *1 (S.D. Miss. Sept. 9, 2008) (no Eighth Amendment violation where prisoner claimed black mold was growing in the shower but "admits that he has had no medical problems resulting from the black mold"); McIntyre v. Phillips, No. 07-527, 2007 WL 2986470, at *2-4 (W.D. Mich. Sept. 10, 2007); Eady v. Head, No. CIVASA04CA0648 NN, 2006 WL 2663776, at *3 (W.D. Tex. Sept. 15, 2006) ("Going without a shower and being exposed to the foul smell of a backed-up shower for two days on two separate occasions does not show deliberate indifference to Plaintiff's basic human needs or constitute cruel and unusual punishment in violation of the Eighth Amendment.").
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). Courts 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). McClebb does not allege that he has suffered any injury, other than inconvenience, as a result of the conditions of his tier at the HOD.
For the foregoing reasons, McClebb's complaint about the conditions of his confinement falls short of stating a constitutional violation, and this claim must also be dismissed as frivolous pursuant to § 1915, § 1915(e), § 1915A, and § 1997e.
McClebb also alleges that some of the inmates do not have mattresses or blankets to sleep on at HOD. He does not allege that he himself is without a mattress or blanket. Nevertheless, even if he intended to do so, he has not alleged a substantial risk of serious harm from the lack of a bed or mattress.
The provision of bedding is within those matters committed to prison administrators' sound discretion. Kot v. Matty, No. 90-7644, 1991 WL 246906, at *2 (E.D. Pa. Nov. 15, 1991), aff'd, 980 F.2d 723 (3rd Cir. 1992). The federal courts have repeatedly held that the deprivation of bedding for a limited period of time is
McClebb alleges no serious harm or risk of serious harm, and the court can perceive none under the circumstances described by plaintiff arising from the lack of a mattress or other bedding. Carter v. Strain, No. 09-15, 2009 WL 3231826, at *3 (E.D. La. Oct. 1, 2009) (citing McAllister v. Strain, No. 08-5174, 2009 WL 500560, at *2-3 (E.D. La. Feb. 25, 2009); Desroche v. Strain, 507 F.Supp.2d 571, 580-81 (E.D. La. 2007). The Court reiterates that McClebb does not allege that he was actually denied a mattress.
His claim as alleged is frivolous and fails to state a claim upon which relief can be granted under § 1983. It must be dismissed pursuant to § 1915(e), § 1915A, and § 1997e.
McClebb also alleges that the inmates are not provided with adequate and consistent opportunities for outdoor exercise or recreation. This complaint also is frivolous and fails to state a claim.
Inmates have no protected liberty interest in specific recreational opportunities and the "[d]eprivation of exercise is not a per se constitutional violation." Lewis v. Smith, 277 F.3d 1373, No. 00-31371, 2001 WL 1485821, at *1 (5th Cir. Nov. 13, 2001) (Table, Text in Westlaw) (citing Stewart v. Winter, 669 F.2d 328, 336 n.19 (5th Cir. 1982); Miller v. Carson, 563 F.2d 741, 751 n.12 (5th Cir.1977)); accord Sampson v. Corr. Corp. of Am., No. 08-CV-0915, 2009 WL 837640, at *16 (W.D. La. Mar. 26, 2009) (citing Smith v. Boyd, 945 F.2d 1041, 1043 (8th Cir. 1991); Beck v. Lynaugh, 842 F.2d 759, 762 (5th Cir. 1988); Lato v. Attorney Gen., 773 F.Supp. 973, 978 (W.D. Tex. 1991)). "[W]hat is constitutionally required, however, is that [the prisoner] not be confined for long periods without the opportunity for regular physical exercise." Lewis, 2001 WL 1485821, at *1 (citing Ruiz v. Estelle, 679 F.2d 1115, 1152 (5th Cir. 1982), amended in part, vacated in part on other grounds, 688 F.2d 266 (5th Cir. 1982)).
Thus, to succeed on a claim under § 1983 for lack of exercise, a prisoner must set forth facts sufficient to "support the existence of any health hazard under the specific circumstances involved." Ruiz, 679 F.2d at 1152; accord Delaney v. DeTella, 256 F.3d 679, 684 (7th Cir. 2001); Ordaz v. Lynaugh, 20 F.3d 1171, No. 93-4290, 1994 WL 144882, at *4 (5th Cir. Apr. 15, 1994) (Table, Text in Westlaw); Green, 801 F.2d at 771. The plaintiff must also allege an actual injury caused by defendant's acts. See Brock v. Sparkman, 101 Fed. Appx. 430, 431 (5th Cir. 2004) (citing Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307 (1986)) (prisoner who had bumps and bruises from repeatedly hitting his head on bunk bed had no cognizable injury); Jackson v. Culbertson, 984 F.2d 699, 700 (5th Cir. 1993) (excessive force claim dismissed as frivolous when prisoner suffered no injury); Oliver v. Collins, 904 F.2d 278, 281 (5th Cir. 1990) (claims properly dismissed when plaintiff alleged insufficient causal connection between defendants' conduct and the claimed assault, and when plaintiff did not allege constitutional harm); Auster Oil & Gas, Inc. v. Stream, 835 F.2d 597, 602 (5th Cir. 1988) (citing Stachura, 477 U.S. at 307) (§ 1983 is designed to compensate persons for actual injuries caused by deprivation of constitutional rights); Jefferson v. City of Hazelhurst, 936 F.Supp. 382, 386 (S.D. Miss. 1995) (To state a claim under § 1983, plaintiff must plead "a direct causal connection . . . without intervening factors, between the deprivation and some injury to plaintiff."). McClebb has not alleged any such health issues.
McClebb does not allege any constitutional violation arising from his recreational opportunities at OPP. He identified no particular injuries suffered as a result of lack of exercise. He does not allege that he was deprived of recreation for any significant time period or that he suffered any physical injury or violation of his constitutional rights of any kind as a result of the alleged limitations on exercise at OPP. See Hernandez, 522 F.3d at 560 (Inmate who alleged that he was deprived of outdoor and out-of-cell exercise for thirteen months while in lockdown and that he suffered muscle atrophy, stiffness, loss of range of motion, and depression failed to show either that he was placed at substantial risk of serious harm or that he suffered a serious illness or injury sufficient to constitute an Eighth Amendment violation.); Ordaz, 1994 WL 144882, at *4 (Plaintiff failed to state a constitutional violation resulting from denial of recreation when he failed to allege health impairment or physical injury.)
McClebb fails to state a cognizable § 1983 claim. This claim must also be dismissed as frivolous and/or for failure to state a claim pursuant to § 1915, § 1915(e), § 1915A, and § 1997e.
Most significantly, as mentioned throughout this report, McClebb has not alleged that any of the conditions described at HOD have caused him a physical injury as required to recover monetary relief under § 1983. For this reason, McClebb's has failed to state a claim for which relief can be granted.
Under 42 U.S.C. § 1997e(e), an inmate cannot recover for "mental and emotional injury suffered while in custody without a prior showing of physical injury." The United States Fifth Circuit Court of Appeals, in interpreting this provision, has held that the phrase "physical injury" in § 1997e(e) means an injury that is more than de minimis, but it need not be significant. Alexander v. Tippah County, Miss., 351 F.3d 626 (5th Cir. 2003) (quoting Harper, 174 F.3d at 719 (quoting Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) (where the Fifth Circuit first set forth its § 1997e(e) definition of physical injury)); Jones v. Greninger, 188 F.3d 322, 326 (5th Cir.1999).
In this case, McClebb has failed to allege any physical injury or illness to support a recovery under § 1983. As a result, McClebb's claims against Sheriff Gusman, and the OPP Staff, should be dismissed with prejudice for failure to state a claim for which relief can be granted pursuant to § 1915(e), § 1915A, and § 1997e.
It is therefore
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation
