Galliano v. Lafourche Parish ( 2021 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA IVAN LEE GALLIANO CIVIL ACTION VERSUS NUMBER: 21-1727 LAFOURCHE PARISH, ET ALR. EPORT AND RECOM MEND ATIONS ECTION: “R”(5) in forma pauperis pro se This 42 U.S.C. §1983 proceeding was filed by Plaintiff, Ivan Lee Galliano, 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 circumstanIcde.s surrounding 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 Parish Ifdo.r not alerting the Department of Health and Human Services of the alleged outbreak. ( ). Plaintiff seekIds. the implementation of such programs as well as $2,000,000 in compensatory damageins. f(orm aat pp.a 6u)p. eris 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 “they blew me off,” that his Irde.quests for COVID testing were denied, and that “… my grievance was never answered.” ( at pp. 2-3). As Plaintiff has not provided the Court with a copy of any actual grievances that he submitted through the LPCC grievance procedure or the dates of same as the §1983 form instructs him to do, the Court construes Plaintiff’s reference to “grievance” as simply his informal complaints to prison officials regarding his medical care. Such complaints fall 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 fiinli nfogr msuai tp, ahuisp ecroims plaint should be dismissed wUitnhd eprrwejouoddic ve. fWoril sthone purpose of proceeding cert. de pnuierdsuant to 28 U.S.C. §1915. th Lathers, 151 F.3d 292, 296 (5 Cir. S1e9e9 a8l)s,o Plaisance v,. 5C2a6in U.S. 1133, 119 S.Ct. 1809 (1999); th , 2007W WriLg h1t7 v0.2 H7o8l0li nagt s*w3o. rth , 374 Fed.Appx. 560, 561 (5 Cir. th 2010)(citing , 260 F.3d 357, 359 (5 Cir. 2001)). Alternatively, turning to the specific Defendants named by Plaintiff, the first-listed Defendant, the Parish of Lafourche, is aM oloncealll vg.o Dveeprnt. ionfg S boocidayl Stehravti ciess considered 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 eIdx.e cCuatriotenr ovf. Satnr auinnconstitutional policy or custom proximately causes a plaintiff’s injuries. Parm v. Shumate, No. 09-CV-0015, 2009 th WL 323182c6e artt. *d2e n(Eie.Dd. La. 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 inferI da. policy meCreollyle b ve.c aBursaez ohsa rCmou rnetsyu, ltTeedx afrsom some interaction with a government entity.’” th (quoting , 982 F.2d 237, 245 (5 Cir. 1993)). Rather, the plaintiff “… must identiIfdy. the poliMcyu orrra cyu vs.t oTmow wnh oifc hM aalnlesugeradly caused the deprivation of his th constitutionTarle ericgeh vt.s .L”o uis i(acnitaing , 76 Fed.Appx. 547, 549 (5 Cir. th 2003) and , 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 be dismisseAdu thaesm efrnitv ovl. oPuasr isahn dof Tfoerr refbaoilnunree 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, 2011); , No. 09-CV-3695, 2009 WL 2870171 at adopted *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 entities lies here as they are federal agencies which operaLtey ounnsd ve.r S fheedeetrzal law and are not “persons” or state th aSccotottr sv .a Uctniintegd u Sntdaeters c Voeloterr oafn ’sst Aatdem lianw. . , 834 F.2d 493, 495 (5aff ’dCir. 1987); Emerson v. Louisia, n7a49 F.Supp. 133, 134 (W.D. La. 1990), , 929 F.2d th 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 Haogwaianrsdt whom judgment may propeArlllye nb ev .e Gnutesmreadn, 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). Some final observations are in order in closing. Above the caption on the first page of the §1983 complaint form that he submitted Plaintiff added the handwritten notations of “Article 5-11,” “Writ of Habeas Corpus,” and “Writ of Mandamus.” (Rec. doc. 1, p. 1). What the first notation refers to is unclear but what is clear is that 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 relief is a “drastic and extraordinary” remedy “reserved for really extraordinary Cheney v. Dist. Court for the Dist. Of Columbia 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 requesteIdn, r2e) S tehses iroensspondent has a clear duty to act, and 3) no other adequate remedy is available. , 672 F.2d 564, 566 th (G5ree Cni rv.. 1H9e8c2kl)e. r Mandamus is not available to review discretionary acts of agency officials. th , 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 partDyo huagsla bsse ve.n U sneitrevde dS twatietsh Anuottoi.c Aes tshoac.t such consequences will result from a failure to object. , th 1/ 79 F.3d 1415 (5 Cir. 1996)(en banc)2.9 th September New Orleans, Louisiana, this day of , 2021. MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE Douglass 1/