Sherrick v. Marindino

a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

ALEXANDRIA DIVISION

JOSEPH G SHERRICK #11487-035, CIVIL DOCKET NO. 1:21-CV-01506

Plaintiff SEC P

VERSUS JUDGE DRELL

WARDEN MARINDINO ET AL, MAGISTRATE JUDGE PEREZ-MONTES

Defendants

REPORT AND RECOMMENDATION

Before the Court is the Complaint (ECF No. 1) and Amended Complaints (ECF

Nos. 5, 13) of Plaintiff Joseph Sherrick (“Sherrick”). Sherrick is a prisoner in

the custody of the Federal Bureau of Prisons incarcerated at the Federal Correctional

Institution in Pollock, Louisiana (“FCI-Pollock”). He names as Defendants Warden

McConnell, Warden Merindino, Ms. Early, Lt. Futrell, Officer Jones, Officer Chase,

all Correctional Officers and Staff that work in “E Unit,” and “Plumbers Department

Crew.”

Because Sherrick fails to state a viable constitutional claim, his Complaint and

Amended Complaints (ECF No. 1, 5, 13), should be DENIED and DISMISSED.

I. Background

Sherrick alleges that he tested positive for COVID-19 in January 2021. He

claims that he contracted the virus from a staff member. Sherrick alleges that Ms.

Early is liable for only performing daily temperature checks of employees rather than

daily rapid tests. ECF No. 1 at 3. He alleges that Ms. Early and other Defendants

did not take all precautionary steps to secure his safety and wellbeing. at 6; ECF

No. 13 at 2.

Sherrick alleges that his toilet broke and would not flush while he was sick

with COVID-19. ECF No. 1 at 6. He informed an officer in Unit E of the problem.

Sherrick was informed that an email was sent to the Unit Team, and a work order

was initiated. Because there was no emergency plumber available, the toilet did

not flush from January 15, 2021 until January 20, 2021. ; ECF No. 13 at 8.

Sherrick had to be escorted to another cell when he needed to use the bathroom.

On one occasion, Sherrick allegedly had to “go in a bag” because the officer took too

long to respond. Sherrick alleges he suffered mental, emotional, and physical

distress.

In a subsequent Amended Complaint, Sherrick alleges that his finger was

injured when Ms. Attenberger slammed his hand in the food tray slot while Sherrick

was trying to pass his trash through for disposal. ECF No. 5 at 1. Sherrick claims

Ms. Attenberger acted in retaliation for Sherrick appealing a disciplinary report. Ms.

Attenberger refused to call the medical department even though Sherrick’s finger was

bleeding. at 2.

Sherrick also alleges that Dr. Markey and Ms. Smith refused to renew

medications for his “serious medical conditions.” ECF No. 5 at 3. Sherrick alleges

that he suffers from eczema and low back and neck pain, for which he had been

prescribed clobetasol cream and indomethacin. ; ECF No. 13 at 11.

Sherrick seeks $13.5 million dollars in damages. He asks that the medical

staff “be stripped of their medical license” and that Ms. Attenberger and Lt. Rene be

terminated from employment. ECF No. 5 at 6. Sherrick also asks that he be

transferred to Calcasieu Parish Jail.

II. Law and Analysis

A. Sherrick’s Complaint is subject to preliminary screening under 28

U.S.C. § 1915A.

As a prisoner seeking redress from an officer or employee of a governmental

entity, Sherrick’s Complaint is subject to preliminary screening pursuant to 28 U.S.C.

§ 1915A. , 156 F.3d 578, 579–80 (5th Cir. 1998) ( ).

Section 1915A(b) provides for dismissal of a complaint, or any portion

thereof, if the Court finds it is frivolous or malicious, if it fails to state a claim upon

which relief may be granted, or if it seeks monetary relief against a defendant who is

immune from such relief.

A complaint is frivolous when it “lacks an arguable basis either in law or in

fact.” , 490 U.S. 319, 325 (1989). A claim lacks an arguable basis

in law when it is “based on an indisputably meritless legal theory.” at 327. A

claim is factually frivolous if the alleged facts are “clearly baseless, a category

encompassing allegations that are ‘fanciful,’ ‘fantastic,’ and ‘delusional.’”

, 504 U.S. 25, 32-33 (1992). A complaint fails to state a claim upon which

relief may be granted when it fails to plead “enough facts to state a claim to relief

that is plausible on its face.” , 550 U.S. 544, 570 (2007);

, 556 U.S. 662 (2009).

B. Sherrick has no right to be transferred to another facility.

The Attorney General has the power to designate the place of a federal

prisoner’s confinement in a state or federal prison, and to permit the transfer of a

prisoner from one institution to another. 18 U.S.C. § 4082; ,

456 F.2d 1117, 1119 (5th Cir. 1972). There is no protected liberty interest in being

housed in a particular facility. , 461 U.S. 238, 244–45 (1983);

, 217 F.3d 332, 334 (5th Cir. 2000)). Therefore, Sherrick’s request to

be transferred must be denied.

C. Sherrick fails to state a viable “conditions of confinement” claim.

recognized an implied cause of action against federal employees for

unreasonable searches and seizures in violation of the Fourth Amendment. 403 U.S.

at 389. Thereafter, the United States Supreme Court extended in only two

more cases: , 442 U.S. 228, 248-49 (1979) (recognizing a cause of

action under the Due Process Clause of the Fifth Amendment for a female employee

who was terminated based on her gender) and , 446 U.S. 14, 16–18

(1980) (recognizing a cause of action under the Eighth Amendment for a deceased

prisoner who was deprived medical attention by prison officers who knew of his

serious medical condition). 137 S. Ct. 1843, 1855 (2017) (“These

three cases— , , and —represent the only instances in which the

Court has approved of an implied damages remedy under the Constitution itself.”).

In recent decades, the Supreme Court has “consistently refused to extend

to any new context.” , 534 U.S. 61, 68 (2001);

, 137 S. Ct. at 1857 (noting that the Court has refused to recognize new

actions “for the past 30 years” and listing a series of cases involving such

refusals).

As the United States Court of Appeals for the Fifth Circuit recently noted:

In , the Court stated that “[w]hen a party seeks to assert an

implied cause of action under the Constitution itself . . . separation-of-

powers principles are or should be central to the analysis. The question

is who should decide whether to provide for a damages remedy, Congress

or the courts?” 137 S. Ct. at 1857 (internal quotation marks and citation

omitted). “The answer,” the Court concluded, “most often will be

Congress.” . This is because “[i]n most instances . . . the Legislature

is in the better position to consider if the public interest would be served

by imposing a new substantive legal liability.” . (cleaned up). As a

result, “the Court has urged caution before extending remedies

into any new context.” . (internal quotation marks and citation

omitted). Indeed, “expanding the remedy is now considered a

disfavored judicial activity.” . (internal quotation marks and citation

omitted).

, 999 F.3d 287, 293 (5th Cir. 2021).

The Supreme Court has developed a two-part test to determine if a

claim may proceed. , 2021 WL 2936055, at *5 (N.D. Tex. 2021) (citing

, 137 S. Ct. at 1843). Because is a judicially crafted remedy, and not a

statutory one like 42 U.S.C. § 1983, courts should consider: (1) whether the case

“presents a new context”; and (2) whether “there are any special factors that counsel

hesitation about granting the extension.” , 990 F.3d 879, 881 (5th Cir.

2021) (finding “the question is antecedent” to other issues in a case, including

qualified immunity) (internal quotations and citations omitted). The Supreme Court

has also strongly counseled against extending to new contexts,

, 140 S. Ct. 735, 744 (2020), and repeatedly held that such extensions are “a

‘disfavored’ judicial activity.” , 137 S. Ct. at 1857; , 973

F.3d 438, 442 (5th Cir. 2020) (“ was the product of an ‘ ’ that

freely implied rights of action” and that “ended long ago.”) (emphasis in original),

, 2021 WL 2044553, at *1 (2021); , 2021 WL 2936055, at *5

(N.D. Tex. 2021).

“Virtually everything else is a ‘new context’ ” and the “understanding of a ‘new

context’ is broad” . . . “because ‘even a modest extension’ of the trilogy ‘is still

an extension.’” , 2021 WL 2936055 at *5 (quoting , 973 F.3d at 442

(citations omitted)). The types of differences that are meaningful enough to make

the context “new” include: “the rank of the officers involved; the constitutional right

at issue; the generality or specificity of the official action; the extent of judicial

guidance as to how an officer should respond to the problem or emergency to be

confronted; the statutory or other legal mandate under which the officer was

operating; the risk of disruptive intrusion by the Judiciary into the functioning of

other branches; or the presence of potential special factors that previous Bivens cases

did not consider.” , 137 S. Ct. at 1860. Moreover, “it is not enough even if ‘a

plaintiff asserts a violation of the same clause of the same amendment in the same

way.’ ” , 973 F.3d at 442 (quoting , 933 F.3d 414, 422 (5th Cir.

2019)); , 2021 WL 2936055 at *5.

Sherrick’s demand for damages for contracting COVID-19 and being confined

for five days without a working commode differs significantly “from the trilogy

of actions sanctioned by the Supreme Court. . .” and is foreclosed by . ,

2021 WL 2936055 at *5 (citing , 137 S. Ct. at 1859, 1865) ( only

recognized an implied damages remedy under the Eighth Amendment for “failure to

provide medical treatment.”)). Other courts, post- , have also held that

will not be extended to reach “non-medical care conditions of confinement” claims.1

Thus, Sherrick cannot state a claim under for the conditions of his

confinement.

Even if extended to Sherrick’s claims, he cannot establish that he was

confined in conditions that amounted to punishment or that Defendants acted with

deliberate indifference. A prison official is not deliberately indifferent “unless the

official knows of and disregards an excessive risk to inmate health or safety; the

official must both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw the inference.”

, 511 U.S. 825, 837 (1994). Deliberate indifference is an extremely high

standard to meet. , 239 F.3d 752,

756 (5th Cir. 2001). “Actions and decisions by officials that are merely inept,

erroneous, ineffective, or negligent do not amount to deliberate indifference. To reach

the level of deliberate indifference, official conduct must be ‘wanton,’ which is defined

to mean ‘reckless.’” , 848 F.3d 415,

1 , No. 21-cv-2130, 2021 WL 2156366, *4 (E.D. Pa. May 27, 2021)

(citations omitted); , No. 3:11-cv-1609, 2021 WL 2222725, *3 (M.D. Pa. Jun. 2,

2021) (noting that although courts “in the wake of ” initially did not

consider whether conditions-of-confinement claims remained viable, “[a]s the dust settles,

however, and courts began to appreciate ’s watershed scope, the better-reasoned

authority has declined to recognize a remedy for Eighth Amendment conditions-of-

confinement. . . claims.”).

420 (5th Cir. 2017) (citation and quotation marks omitted). “[P]rison officials who

actually knew of a substantial risk to inmate health or safety may be found free from

liability if they responded reasonably to the risk, even if the harm ultimately was not

averted.” , 511 U.S. 825, 844 (1994).

Additionally, the deprivation must be, objectively, sufficiently serious. at

834. “There is no doubt that infectious diseases generally and COVID-19 specifically

can pose a risk of serious or fatal harm to prison inmates.” , 956

F.3d 797, 801 (5th Cir. 2020). However, not only must the harm in question be

serious, but the risk of that harm must be substantial.

Sherrick does not allege that Defendants failed to take any reasonable

measures to protect him, or failed to implement any recommended COVID-19

protocols. For example, he does not allege that Defendants failed to test symptomatic

inmates, isolate infected patients or employees, quarantine inmates or employees

thought to have been exposed, implement social distancing, or provide soap or

disinfectants. In fact, Sherrick acknowledges that Ms. Early implemented regular

temperature checks of the staff. ECF No. 1 at 3.

Sherrick specifically complains that Defendants did not administer daily

COVID rapid tests on employees. But Sherrick provides no authority indicating that

an absence of rapid testing qualifies as wanton or reckless, or amounts to a

constitutional violation. Nor does Sherrick reference any authority indicating that

daily rapid testing is required or even recommended by the CDC or other experts.

Sherrick’s implication that daily rapid tests would have prevented him from

contracting COVID-19 is conclusory. There are no allegations suggesting that

Defendants failed to respond reasonably to the risk of COVID-19.

Likewise, if extended to Sherrick’s complaint about the toilet in his cell

not flushing for five days, his claim would still fail. Unsanitary conditions amount to

constitutional deprivations only in extreme circumstances. ,

946 F.3d 211 (5th Cir. 2019),

, 141 S. Ct. 52 (2020) (plaintiff was confined in cells “covered, nearly floor to

ceiling, in massive amounts of feces: all over the floor, the ceiling, the window, the

walls, and even packed inside the water faucet”) (internal quotations marks

omitted).2

Sherrick’s allegations that he had to be escorted to another cell when he needed

to use the bathroom for five days and had to “go in a bag” once because the officer

took too long to respond to his request (ECF No. 1 at 6) do not amount to the extreme

circumstances or “shockingly unsanitary” conditions that would support a

constitutional violation. , 141 S. Ct. at 53.

2 See also ; , 157 F.3d 1003, 1006 (5th Cir. 1998) (three days in a filthy crisis

management cell with blood on walls and excrement and old food on the floor was insufficient

to objectively demonstrate a sufficiently extreme deprivation) (citing , 87

F.3d 265, 269 (8th Cir. 1996) (holding no Eighth Amendment violation when prisoner was

exposed for four days to raw sewage from overflowed toilet in his cell)); , 719

F.2d 1310, 1312–13 (5th Cir. 1983) (holding 10-day administrative lockdown that subjected

prisoners to “dirty and filthy” mattresses, blankets laundered every one to three weeks, and

no soap to wash hands between using the toilet and eating meals was not sufficient to

establish constitutional deprivation where some measure of hygiene was provided by

available water and utensils at meals)

D. Sherrick fails to state a claim for retaliation.

Sherrick alleges that his finger was injured when Officer Attenberger slammed

his hands in the food tray slot while Sherrick was trying to pass his tray through for

disposal. ECF No. 5 at 1. Sherrick claims Officer Attenberger acted in retaliation for

Sherrick appealing a disciplinary report.

The Fifth Circuit has expressly declined to extend to include First

Amendment retaliation claims against prison officials.

, 998 F.3d 682, 685–86 (5th

Cir. 2021) (noting that the Supreme Court has never recognized a cause of

action under the First Amendment and has rejected a First Amendment retaliation

claim) (citations omitted).

E. Sherrick fails to state a claim for the deprivation of medical care.

Sherrick alleges that Officer Attenberger refused to call the medical

department even though his finger was bleeding. ECF No. 5 at 2. He also complains

that his medications were not refilled for approximately one month after the

prescriptions expired.

A delay in receiving medical care can only constitute an Eighth Amendment

violation if there has been deliberate indifference that results in substantial harm.

, 467 F.3d 459, 463 (5th Cir. 2006). And deliberate indifference

may only be found where an official knows of and disregards an excessive risk to

inmate health or safety. , 511 U.S. at 837.

According to his medical records, Sherrick received medical treatment within

30 minutes of the injury. ECF No. 13-1 at 30. The examination revealed a “small

superficial abrasion” on his finger. Nurse Walters cleaned the abrasion with

saline and provided Sherrick with triple antibiotic ointment and Band-Aids.

Sherrick declined a tetanus shot. The following day, a request for an orthopedic

consultation was initiated. ECF No. 13-1 at 32.

Sherrick’s finger was x-rayed and evaluated by an orthopedist on June 25,

2021. The doctor noted moderate swelling and tenderness, but the x-ray confirmed

there was no fracture. Sherrick’s finger was splinted, and he was prescribed

acetaminophen. ECF No. 13-1 at 34.

Sherrick does not allege that he suffered substantial harm from the 30-minute

delay in obtaining medical care. In fact, in the “free world,” his wait for emergency

medical care and an orthopedic consultation would likely have been significantly

longer. , 2010 WL 723282, at *3 (W.D. Tex.

2010) (“[i]t is common knowledge that people in the free world outside of jail

sometimes have to wait over one day for an appointment to be seen by a doctor”).

Next, Sherrick’s medical records indicate that he arrived at FCI-Pollock with

prescriptions of “clobetasol for hand eczema” and indomethacin for back pain. ECF

No. 13-1 at 25. Both prescriptions expired on May 31, 2021. ECF No. 13-1 at 26.

Sherrick complains that Dr. Markey and Ms. Smith refused to renew his medications

for these “serious medical conditions.” ECF No. 5 at 3.

However, several courts have held that neither back pain nor eczema qualify

as a serious medical need required for an Eighth Amendment violation.

, 2021 WL 3504647, at *6 (W.D. La. 2021) (collecting cases)3;

, 2006 WL 1968913, at *8 (E.D. La. 2006) (collecting cases)4.

Regardless, the medical records that Sherrick provided indicate that his

prescriptions for clobetasol and indomethacin were refilled on June 21, 2021, and that

he received them on June 30, 2021. ECF No. 13-1 at 26. There is no indication that

Sherrick suffered a substantial harm from the one-month delay. And Sherrick’s claim

that Defendants acted with deliberate indifference in failing to promptly renew his

prescriptions is conclusory. , 243 F. App’x 877, 880 (5th Cir.

2007) (affirming dismissal of prisoner’s claims of deliberate indifference when he

3 , 250 F. App’x 482 (3rd Cir. 2007) (failure to provide medications

prescribed for eczema did not demonstrate deliberate indifference to a serious medical need);

, 308 F. App’x 628, 632 (3rd Cir. 2009) (denial of treatment for “weight

loss, eczema of the feet, seborrhea of the scalp, athlete’s foot, constipation, and swollen

knuckles on his right hand” failed to allege a serious medical condition); , 564

F.3d 105 (2nd Cir. 2009) (eczema, back pain, stomach disorders, allergies, and asthma did

not constitute a “serious medical need”); , 2009 WL 2421482, * 3 (E.D.

Va. 2009) (“[I]t is doubtful that a skin rash, even one which causes pain and itching, is a

sufficiently serious medical need to support an Eighth Amendment violation.”);

, 1999 WL 92617, *1-3 (S.D. N.Y. 1999) (prisoner’s claim of intense itching from

eczema did not constitute a “serious medical need”).

4 , No. 3:00–CV–0662, 2002 WL 31757706, at *4 (N.D.

Tex. 2002) (Lindsay, J.) (herniated disc and degenerative spinal disease not serious medical

needs); , No. 17-CV-887, 2002 WL 31075804, at *14 (S.D. N.Y. 2002) (back

spasms and pain not a serious medical need); , No. 97-CV-0201, 2000 WL

385521, at *2–3 (S.D. N.Y. 2000) (when plaintiff was able to walk and function normally

despite neck, back and groin pains, he had no serious medical needs);

, 133 F.Supp.2d 1348, 1359 (S.D. Fla. 2001) (Plaintiff who

suffered from constant, severe back pain that greatly limited his mobility and had a ruptured

spinal disk, for which a neurosurgeon had recommended surgery, had a serious medical

need).

attempted suicide after his psychiatric medications were discontinued);

, 539 F. App’x 432, 433 (5th Cir. 2013) (affirming dismissal as frivolous of

conclusory claims regarding deliberate indifference to a serious medical need);

, 760 F. App’x 251, 256-57 (5th Cir. 2019) (finding conclusory allegations

insufficient to state a claim for deliberate indifference).

III. Conclusion

Because Sherrick fails to state a viable constitutional claim under , his

Complaint and Amended Complaints (ECF Nos. 1, 5, 13) should be DENIED and

DISMISSED WITH PREJUDICE under §1915A.

Under 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b), a party may file

written objections to this Report and Recommendation within 14 days of service,

unless the Court grants an extension of time to file objections under Fed. R. Civ. P.

6(b). A party may also respond to another party’s objections to this Report and

Recommendation within 14 days of service of those objections, again unless the Court

grants an extension of time to file a response to objections.

No other briefs may be filed without leave of court, which will only be granted

for good cause. A party’s failure to timely file written objections to this Report and

Recommendation will bar a party from later challenging factual or legal conclusions

adopted by the District Judge, except if the challenge asserts “plain error.”

SIGNED on Monday, November 1, 2021.

_______________________________________

JOSEPH H.L. PEREZ-MONTES

UNITED STATES MAGISTRATE JUDGE