Lerille v. Lafourche Parish

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ROBBY JOHN LERILLE CIVIL ACTION VERSUS NUMBER: 21-1729 LAFOURCHE PARISH, ET ALR. EPORT AND RECOM MEND ATIONS ECTION: “I”(5) in forma pauperis pro se This 42 U.S.C. §1983 proceeding was filed by Plaintiff, Robby John Lerille, against Defendants, the Parish of Lafourche, the Medical Department of the Lafourche Parish Criminal Complex (“LPCC”), the Federal Emergency Management Agency (“FEMA”), and the Centers for Disease Control and Prevention (“CDC”). (Rec. doc. 1, pp. 1, 4). Plaintiff, an inmate of LPCC, complains of the circumstances suIdr.rounding his possible exposure to and treatment for COVID-19 in July of this year. ( at pp. 4-5). Plaintiff faults the CDC and FEMA for not instituting programs to address the situation that he encountered as well as Lafourche ParishId f.or not alerting the Department of Health and Human Services of the alleged outbreak. ( ). Plaintiff seekIsd .the implementation of such programs, as well as $1,000,000 in compensatory damageins . f o(rm aat ppa. u6p).e ris As noted above, Plaintiff has initiated this isnu ifto rma pauperis pursuant to 28 U.S.C. §1915 . (Rec. doc. 3). A proceeding brought may be dismissed as frivolouBs ouonkdeer rv .§ K1o9o1n5c(ee)(2)(B)(i) if the claim alleged therein has no arguable basis in law th or fact, , 2 F.3d 114 (5 Cir. 1993), osre eif aitls foails to state a claim upon which relief can be granted. 28 U.S.C. §1915 (e)(2)(B)(ii); 28 U.S.C. §1915A(b), 42 U.S.C. §1997e(c). Giving the instant complaint a liberal reading, it is the recommendation of the undersigned Magistrate Judge that this matter be dismissed as frivolous and for failing to At the outset, the Court will address the threshold issue of exhaustion of available prison administrative remedies. Under 42 U.S.C. §1997e(a), an inmate is required to exhaust available prison administrative remedies before bringing suit. That statute, which was enacted in 1996 as part of the Prison Litigation Reform Act (“PLRA”), provides that “[n]o 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.” 42 U.S.C. §1997e(a). The exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances Colirf fopradr tvic. uGliabrb sepisodes, and whether they th allege excessiPvoer ftoerrc ve. oNru ssoslmee other wrong. , 298 F.3d 328 , 329 (5 Cir. 2002)(citing , 534 U.S. 516 , 122 S.Ct. 983 (2002)). Exhaustion must be proper and in full compliance with applicable prison procedural rulGeusy avn. dL edBelaandclines; substantial compliance with administrative procedures is insufficient. Wrig,h Nt ov.. 1H3o-lClinVg-2sw79o2rt hc/w 13-CV-5033, 2015 WL 65303 at *9 (E.D. La. Jan. 5, 2015)(citing th , 260 F.3d 357 , 358 (5 Cir. 2001)). EGxhoanuzastleiozn v o. Sf eaadlministrative remedies is th essentially a condition precedent to bringing suit. , 702 F.3d 785, 788 (5 Cir. 2012). “Pre-filing exhaustion is mandatory, andI tdh. e case must be dismissed if available administrative remedies were not exhausted.” (emphasis added). Although the exhaustion requirement is in the nature of an affirmative defense, “… a court can dismiss a case prior to service on defendants for failure to state a claim, predicated on faCilaurrbee tvo. eLxahpapuinst, if the complaint itself makes clear that the prisoners efaei laeldso t oM oeoxhrea uvs. tT.”h a ler th , 492 F.3d 325, 328 (5 Cir. 2007)(footnote omitted); , 436 th Fed.Appx. 311, 312 (5 Cir. 2011). Naquin v. Larpenter Just like the plaiJnontieffss v i.n L arpenter , No. 18-CV-14199, 2019 WL 3229358 (E.D. La. Jul. 17, 20a1d9o)p, ted , No. 13-CV-0056, 2013 WL 1947243 Aatu *th1e (mEe.Dn.t Lav.. ATeprrr. eb1o2n, n2e0 P1a3r)i,s h Sheriff’s, O2f0fi1c3e WL 1947188 (E.D. La. May 10, 2013), Lathers v. Nelson C, oNleom. 0a9n- CCVo-r5r8ec3t7io, n2a0l0 9C eWntLe r4782368 at *7 (E.D. La. Dec. 3, 2009), and , No. 07-CV-2891, 2007 WL 1702780 at *3 (E.D. La. Jun. 11, 2007), Plaintiff admits on the face of his complaint, in answer to Question No. II(A) of the pre-printed §1983 complaint form, that LPCC has a prisoner grievance procedure in place at that facility. (Rec. doc. 1, p. 2). He also candidly admits that he did not present the facts alleged in his lawsuit to the LPCC grievance procedure, explaining that he instead spoke with unidentified nursesI da.nd staff members regarding the alleged deficiencies in the care that he was receiving. ( at pp. 2-3). Such informally-made complaints fall far short of satisfying the exhaustion requirement. Given that Plaintiff makes clear on the face of his complaint that he has not exhausted the remedies that were available to him through the LPCC prisoner grievance procedure prior to filing suiint, fohrism ac opmaupplaeirnist should be dismissed with pUrnedjuerdwicoeo df ovr. Wthiels opnurpose of proceeding cert. pduenrsieudant to 28 U.S.C. §1915 . Lath, e1r5s1 F.3d th 292, 296 (5 Cir. 19S9e8e) a, lso Plaisance, 5v2. C6a Uin.S. 1133, 119 S.Ct. 1809 (1999); , 2007 th WWrLi g1h7t0 v2. 7H8o0ll iantg *s3w. o rth , 374 Fed.Appx. 560, 561 (5 Cir. 2010)(citing th , 260 F.3d 357 , 359 (5 Cir. 2001)). Turning to the specific Defendants named by Plaintiff, the first-listed Defendant, the Parish of Lafourche, Mis oan leolcl avl. gDoevpetr. noifn gS obcoiadly S tehravti cise sconsidered to be a “person” within the meaning of §1983. , 436 U.S. 658, 694-95 , 98 S.Ct. 2018, 2037-38 (1978). However, a governmental body like Lafourche Parish may be held liable under §1983 only where the Iedx. e cCuatritoenr ovf. aSntr uainnconstitutional policy or custom proximately causes a plaintiff’s injuries. Parm v. Shuma,t eNo. 09-CV-0015, 2009 WL 3231826 acte *r2t. th (dEe.nDie. dLa. Oct. 1, 2009)( quoting , 513 F.3d 135, 142 (5 Cir. 2007), , 555 U.S. 813 , 129 S.Ct. 42 (2008)). “ʻA plaintiff may not infer Iad .policy meCroelllye bv.e Bcaruaszeo sh Caromun rteys, uTletexads from some interaction with a government entity.’” (quoting th , 982 F.2d 237 , 245 (5 Cir. 1993)). Rather, the plaintiff “… must identify tIhde. policy Moru crruasyto vm. Twohwinc ho fa lMleagnesdulyra caused the deprivation of his constitutional th rTirgehetcse.” v . Lo u(cisiitainnga , 76 Fed.Appx. 547, 549 (5 Cir. 2003) and th , 74 Fed.Appx. 315, 316 (5 Cir. 2003)). As Plaintiff does not allege that the purported deprivation of his constitutional rights resulted from a policy or custom, much less identify any such policy or custom, any §1983 claim against Lafourche Parish should beA udtihsmemisesnetd v .a Ps afrriisvho loofu Tse arnredb ofonrn efailure to state a claim under §1915(e)(2)(B)(i) and (ii). adopted , No. 09-CV-4618, 2010 WL 1930943 at *6 (E.D. La. Mar. 19, 2010), , 2010 WL 1930938 (E.D. La. May 10, 2010). A similar result obtains for the second Defendant identified by Plaintiff, the Lafourche Parish Medical Department. This is so because discrete Hdoewpaarrtdm ve. nGtus somf apnrison facilities are simply not considered to be “persons” under §1983. adopted , No. 11-CV-2602, 2011 WL 6130763Ja caotb s*o2n-3 v . (GEu.Dsm. aLna. Nov. 17, 2011), , 2011 WL 6148592 (E.D. La. Dec. 8, 20a1d1o)p; ted , No. 09-CV-3695, 2009 WL 2870171 at *2 (E.D. La. Aug. 10, 2009), , 2009 WL 2957961 (E.D. La. Aug. 26, 2009). In light of these authorities, it will be recommended that Plaintiff’s §1983 claim against the Lafourche Parish Medical Department be dismissed with prejudice pursuant to §1915(e)(2)(B)(i) and (ii). The remaining two Defendants, FEMA and the CDC, share a common characteristic and will thus be addressed together. No §1983 action against those two Defendants lies here as they are federal agencies which operateL yuonndse rv .f eSdheereatzl law and are not “persons” or th state acStcoortst avc. tUinngit eudn dSetart ecso lVoert eorfa snt’as tAe dlmawin. . , 834 F.2d 493, 495 (5 a fCf’idr. 1987); Emerson v. Louisi, a7n4a9 F.Supp. 133, 134 (W.D. La. 1990), , th 929 F.2d 126 (5 Cir. 1991); , No. 07-CV-0456, 2008 WL 294899 at *2 (M.D. La. Jan. 31, 2008)(FEMA). There being no viable §1983 claims against these two Defendants, there are no appropriate juridical persons before the Court aHgoawinasrtd whom judgment may properAlyll ebne ve. nGtuesrmeda,n thus justifying dismissal of this action. , 2011 WL 6130763 at *2-3; , No. 05-CV-1633, 2006 WL 286007 at *3 n. 8 (E.D. La. Feb. 2, 2006). In closing, some final observations are in order. Above the caption on the first page of the §1983 complaint form that he submitted Plaintiff added the handwritten notations of “Writ of Habeas Corpus” and “Writ of Mandamus.” (Rec. doc. 1, p. 1). As for the former notation, it would be inappropriate to construe this matter as a habeas petition as Plaintiff does not name as the Defendant/Respondent herein the individual who has custody of him, he makes no showing of having exhausted available state-court remedies, and his release from custody is not an available remedy under §1983. As for Plaintiff’s reference to mandamus, that species of reCliheef niesy av .“ dDrisats. tCico uarntd f oerx ttrhaeo Drdisitn. aOrfy ”C orleummebdiay “reserved for really extraordinary causes.” , 542 U.S. 367, 380 , 124 S.Ct. 2576, 2586 (2004). Such relief may be granted only when the mandamus petitioner is able to establish that: 1) he is clearly entitled to the relief requested, 2)In t hree respondent has a clear duty to act, and 3) no other adequate remedy is available. Sessions th , 672 F.2d 564, 566 (5 CirG. r1ee9n8 2v). . H ecMkalenrdamus is not available to review th discretionary acts of agency officials. , 742 F.2d 237 , 241 (5 Cir. 1984). Finally, the federal mandamus statute, 28 U.S.C. §1361 , pertains only to officers and employees of the United States or any agency thereof. The guidance offered by the CDC and FEMA regarding COVID-19 is just that. As noted by the Fifth Circuit, the “… Eighth Amendment does not enact the CDC guidelines” and a prison’s failure to comply with CDC gVuaidleenltininees v“.… C odlolieesr not clearly evince a wanton th disregard for any serious medical neseedes .a” l so Young v. Ledet , 978 F.3d 154, 164 (5 Cir. 2020)(internal quotation omitted); adopted , No. 20-CV-2165, 2021 WL 799683 at *16 (E.D. La. Jan. 15, 2021), , 2021 WL 795981 (E.D. La. Mar. 2, 2021). Mandamus is not available to review the discretionary acts of the CDC and FEMA respecting the pandemic. RECOMMENDATION For the foregoing reasons, it is recommended that Plaintiff’s suit be dismissed with prejudice pursuant to 28 U.S.C. §1915 (e)(2)(B)(i) and (ii). A party’s failure to file written objections to the proposed findings, conclusions, and recommendation contained in a magistrate judge’s report and recommendation within 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 Douglass v. United States Auto. Assoc. such consequences will result from a failure to object. , 79 F.3d 1415 (5th Cir. 1996)(en banc)2.1 9/ t h September New Orleans, Louisiana, this day of , 2021. MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE Douglass 1/