Elder v. Bass

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

MONROE DIVISION

GLEN ELDER CIVIL ACTION NO. 24-0713

SECTION P

VS.

JUDGE TERRY A. DOUGHTY

WARDEN NOLEN BASS, ET AL. MAG. JUDGE KAYLA D. MCCLUSKY

REPORT AND RECOMMENDATION

Plaintiff Glen Elder, a prisoner at Tensas Parish Detention Center (“TPDC”) proceeding

pro se and in forma pauperis, filed this proceeding on approximately May 28, 2024, under 42

U.S.C. § 1983. He names the following defendants: Warden Nolen Bass, Assistant Warden

Johnson, and Mayor Jarrob Bottley.1 For reasons that follow, the Court should dismiss

Plaintiff’s claims.

Background

Plaintiff states that the water at TPDC was off on multiple occasions: “September 15th to

24th of 2023, February 26, [20]24, February 29, [20]24, March 6, [20]24, March 28, [20]24, . . .

[and from] 7-7-24 [to] 7-11-24.” [doc. # 12, p. 1]. Plaintiff claims that he was forced to defecate

in a clear bag five times because of the lack of water at TPDC and resulting inoperative toilets.

[doc. # 1, p. 3]. He states that the experiences were humiliating and embarrassing, depriving him

of dignity and decency. [doc. # 12, pp. 1, 4].

1 This matter has been referred to the undersigned for review, report, and recommendation under

28 U.S.C. § 636, and the standing orders of the Court.

Plaintiff had to “put [his] bag of feces [] in the big bag in the shower full of feces and

urine by (80) inmates . . . [sic].” [doc. # 1, p. 3]. He suggests that the bags of feces in the

shower were removed hourly. Id. He states that he is “now unable to bond socially and

mentally” because he was exposed to biohazardous waste. [doc. # 12, p. 2].

Plaintiff suggestively claims that he had to shower near the large bag of feces located in

the shower area, which exposed him to health and safety hazards. [doc. # 12, pp. 1, 3]. He states

that staff dragged the bags when they removed them, causing the bags to leak excrement and

urine on the floor. Id. at 5. The floor was “not sanitized or regularly cleaned.” Id.

Plaintiff claims that he had to urinate in either a shower or toilets full of feces because D-

Dorm lacks a urinal. [doc. #s 1, p. 3; 12, p. 2]. He states that the feces and urine odors in his

dormitory were extremely bad and placed his health at risk. [doc. # 1, pp. 3-4]. He breathed the

odors in all day, and he had headaches, a running nose, dry coughs, and irritation to his lungs,

throat, and eyes. [doc. #s 1, p. 4; 12, p. 3].

Plaintiff claims that when the water was off at TPDC, he only received between 1-5

bottles of water each day for brushing his teeth, washing/showering, cooking, and drinking.

[doc. # 1, p. 4]. In an amended pleading, he states that he was provided one 16-ounce bottle of

water after each meal. [doc. # 12, p. 1]. He states that he was unable to shower or wash his face

for substantial lengths of time. Id at 3-4. He was also unable to wash his hands after defecating

and before eating. Id. at 6.

Plaintiff claims that the large bags of excrement are not all “going in the dumpster”; some

are disposed of “on the side of the shop in [] massive piles to be burned in a deep hole[,]” which

allegedly pollutes the ground. [doc. # 12, p. 4].

Plaintiff claims that the lack of water and water pressure has made the pipes at TPDC

extremely rusty, causing leaks. [doc. # 12, p. 5].

Plaintiff mentions that he lacked recreation when the water was off, and he also endured

verbal abuse from staff. [doc. # 12, p. 6].

Plaintiff “suffered a serious injury from an attack of dysentery caused weight loss and

psychological harm from [his] sporadic experiences . . . [sic].” [doc. # 12, p. 6]. For relief, he

seeks: (1) a new urinal in Delta Dormitory; (2) the removal of the pile of feces outside; (3) the

repair of the damaged sewage system and toilets; (4) the repair of the ventilation system; (5)

mental and physical healthcare; (6) safety rails for the shower and paint for the shower floor; (7)

the removal of rusted plates on the wall; (8) the repair of lights in the dormitory; (9) debris

cleaned off of the ceiling; (10) the repair of water fountains; and (11) $500,000.00 for mental and

physical pain. [doc. # 12, p. 7].

Law and Analysis

1. Preliminary Screening

Plaintiff is a prisoner who has been permitted to proceed in forma pauperis. As a

prisoner seeking redress from an officer or employee of a governmental entity, his complaint is

subject to preliminary screening pursuant to 28 U.S.C. § 1915A.2 See Martin v. Scott, 156 F.3d

578, 579-80 (5th Cir. 1998) (per curiam). Because he is proceeding in forma pauperis, his

Complaint is also subject to screening under § 1915(e)(2). Both § 1915(e)(2)(B) and § 1915A(b)

provide for sua sponte dismissal of the complaint, or any portion thereof, if the Court finds it is

2 Under 28 U.S.C. § 1915(h), “‘prisoner’ means any person incarcerated or detained in any

facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations

of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary

program.”

frivolous or malicious, if it fails to state a claim on 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.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is

“based on an indisputably meritless legal theory.” Id. at 327. Courts are also afforded the

unusual power to pierce the veil of the factual allegations and dismiss those claims whose factual

contentions are clearly baseless. Id.

A complaint fails to state a claim on which relief may be granted when it fails to plead

“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007); accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is

facially plausible when it contains sufficient factual content for the court “to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing

Twombly, 550 U.S. at 570). Plausibility does not equate to possibility or probability; it lies

somewhere in between. Id. Plausibility simply calls for enough factual allegations to raise a

reasonable expectation that discovery will reveal evidence to support the elements of the claim.

Twombly, 550 U.S. at 556.

Assessing whether a complaint states a plausible claim for relief is a “context-specific

task that requires the reviewing court to draw on its judicial experience and common sense.”

Iqbal, supra. A well-pled complaint may proceed even if it strikes the court that actual proof of

the asserted facts is improbable and that recovery is unlikely. Twombly, supra.

In making this determination, the court must assume that all the plaintiff’s factual

allegations are true. Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998). However, the

same presumption does not extend to legal conclusions. Iqbal, supra. A pleading comprised of

“labels and conclusions” or “a formulaic recitation of the elements of a cause of action” does not

satisfy Rule 8. Id. A complaint fails to state a claim where its factual allegations do not “raise a

right to relief above the speculative level.” Montoya v. FedEx Ground Package Sys., Inc., 614

F.3d 145, 148 (5th Cir. 2010) (quoting Twombly, 550 U.S. at 555). “[U]nadorned, the-defendant

unlawfully-harmed-me accusation[s]” will not suffice. Iqbal, 556 U.S. at 677.

“[P]laintiffs must allege facts that support the elements of the cause of action in order to

make out a valid claim.” City of Clinton, Ark. v. Pilgrim’s Pride Corp, 632 F.3d 148, 152-53

(5th Cir. 2010). Courts are “not free to speculate that the plaintiff ‘might’ be able to state a claim

if given yet another opportunity to add more facts to the complaint.” Macias v. Raul A.

(Unknown) Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994).

A hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926

F.2d 480, 483 n.4 (5th Cir. 1991). A district court may dismiss a prisoner’s civil rights

complaint as frivolous based upon the complaint and exhibits alone. Green v. McKaskle, 788

F.2d 1116, 1120 (5th Cir. 1986).

“To state a section 1983 claim, a plaintiff must (1) allege a violation of a right secured by

the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was

committed by a person acting under color of state law.” Whitley v. Hanna, 726 F.3d 631, 638

(5th Cir. 2013) (internal quotation marks omitted). Consistent with the standard above, a

“[S]ection 1983 complaint must state specific facts, not simply legal and constitutional

conclusions.” Fee v. Herndon, 900 F.2d 804, 807 (5th Cir. 1990).

2. Conditions of Confinement

“While the Constitution does not require that custodial inmates be housed in comfortable

prisons, the Eighth Amendment's prohibition against cruel and unusual punishment does require

that prisoners be afforded ‘humane conditions of confinement’ and prison officials are to ensure

that inmates receive adequate food, shelter, clothing, and medical care.” Herman v. Holiday, 238

F.3d 660, 664 (5th Cir. 2001) (quoting Farmer v. Brennan, 511 U.S. 825 (1994)). To establish

an Eighth Amendment violation, a prisoner must demonstrate that a prison official was

deliberately indifferent to conditions that resulted in the “extreme deprivation[,]” Shannon v.

Vannoy, 682 F. App’x 283, 285 (5th Cir. 2017), of the “minimal civilized measure of life’s

necessities.”3 Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008). To establish

deliberate indifference, the prisoner must show that the official knew of and disregarded an

excessive risk to inmate health or safety; the official must have been both aware of facts from the

inference could be drawn that a substantial risk of serious harm exists, and he must have drawn

the inference. Farmer, 511 U.S. at 837.

“Some conditions of confinement may establish an Eighth Amendment violation in

combination when each would not do so alone, but only when they have a mutually enforcing

effect that produces the deprivation of a single, identifiable human need such as food, warmth, or

exercise—for example, a low cell temperature at night combined with a failure to issue

blankets.” Wilson v. Seiter, 501 U.S. 294, 304 (1991) (internal quotation marks and quoted

source omitted).4 However, “Nothing so amorphous as ‘overall conditions’ can rise to the level

of cruel and unusual punishment when no specific deprivation of a single human need exists.”

Id. at 305.

3 The deprivation alleged must be, objectively, sufficiently serious. Farmer, 511 U.S. at 834.

This standard is not static: the inquiry is whether the conditions are contrary to “the evolving

standards of decency that mark the progress of a maturing society.” Estelle v. Gamble, 429 U.S.

97, 102 (1976) (quotation marks and quoted source omitted).

4 “Such things as food, sleep, clothing, shelter, medical attention, reasonable safety, sleep, and

exercise have been recognized by courts as basic physical human needs subject to deprivation by

conditions of confinement.” Wilkerson v. Stalder, 639 F. Supp. 2d 654, 678 (M.D. La. 2007)

(citing cases).

Here, Plaintiff fails to plausibly allege that any defendant was deliberately indifferent.

As to defendants’ involvement or knowledge, he offers only the following, interspersed

irregularly throughout his amended pleading:

○ “He could no longer communicate whether professionally or personally with

wardens . . . solely because of the way (TPDC)’s behaved in the times,

inadequate sewage system or operable toilets, loss of water pressure and

(continual) shut off of water supply from its population. [sic].”

○ “Wardens Bass and Johnson and associates treated Plaintiff, who seeks

rehabilitation through its correctional system, who hopes to become a law

abiding human being but only being dehumanized . . . do to lack of sewage

system, operable toilets ‘do to lack of water.’ [sic].”

○ “Plaintiff has grieved in drama and complained several times and on several

occasions as it relates to him being forced and deprived of living conditions

inside his housing unit but has not seen any relief as supervisory officials Bass

and Johnson has a responsibility to his staff and his prisoners and has illustrated

some very poor or rather unethical behaviors in terms of them maintaining an

exceptional living conditions for plaintiff condemns this is deplorable (MLM)

my life matters so I got the courts involved. [sic].”

○ “The Defendants and associates had the plaintiff using small clear trash bags,

as a toilet, do to lack of operable toilet and lack of sewage system, to relieve

myself, deprived of deprivation of dignity also my decency, being dehumanized.

[sic].”

○ “When the water comes back on Johnson comes in dorms and fighting with

toilets. Do to packed with urine and feces and toilet paper . . . if flushed it runs

over on the floor so they break up paper and feces and then manual flush to avoid

back up and damaging the system and forced them to outside and pump on the

ground also a ‘continual lack of water.’ [sic].”

[doc. # 12, pp. 2, 3, 6]. None of these allegations plausibly demonstrate that any particular

defendant knew of yet disregarded a substantial risk of serious harm to Plaintiff.

Plaintiff at best suggests that Warden Bass and Assistant Warden Johnson could have

known about some unspecified conditions (of the manifold he lists) during the sporadic,

unspecified periods when the water was off, but there is no allegation that Bass and Johnson

knew of a risk of harm that any particular condition(s) posed to Plaintiff. He does not allege, for

instance, that he informed any defendant that any condition or sum of conditions exposed him to

a substantial risk of serious harm. See Alexander v. Texas Dep't of Crim. Just., 951 F.3d 236,

241 (5th Cir. 2020) (“While Alexander reported the cell conditions to officers on shift, he cannot

make the requisite showing that they in fact ‘drew the inference’ that there was a substantial risk

of serious harm.”).

Plaintiff does thinly suggest that he sent grievances or complaints about “living

conditions” to an unknown person(s) and that Bass and Johnson did not provide him any relief.

Even construed liberally and in his favor however, this opaque allegation does not plausibly

reveal that he informed defendants that he was exposed to a substantial risk of serious harm.

Aside from bluntly referring to living conditions (without specifying, for instance, whether he

referred to inadequate flooring, rust on pipes or walls, unsanitary conditions, exposure to

excrement, or lack of recreation), Plaintiff does not disclose the content of any grievance or

complaint. Nor does he allege that he directed the complaints to defendants, specify the

approximate date(s) he sent the complaints, or allege that defendants received and reviewed

them.5

The undersigned is sympathetic to Plaintiff’s alleged experiences, but Plaintiff does not

plausibly allege wanton infliction of pain or the type of “‘cold hearted, casual unwillingness to

investigate what can be done for a man who is obviously in desperate need of help’” that the

5 See Ball v. LeBlanc, 792 F.3d 584, 595 (5th Cir. 2015) (“[A] prison administrator who has

received an administrative remedy request is not necessarily made aware, without factual

corroboration, that there is a substantial risk of serious harm.”); Ornelas v. Hamilton, 2021 WL

4618465, at *2 (5th Cir. Oct. 6, 2021) (finding that a defendant was not aware of an excessive

risk to the plaintiff where the plaintiff alleged that he sent letters to the defendant reporting abuse

and asking for help because there was no allegation that the defendant saw or received the

letters).

Fifth Circuit has “recognized as necessary to constitute deliberate indifference.”6 See Davis v.

Lithicum, 574 F. App'x 379, 380 (5th Cir. 2014); Wilson v. Seiter, 501 U.S. 294, 297 (1991)

(observing that the Eighth Amendment prohibits the wanton infliction of pain). The Court

should dismiss these claims.

3. Threats

Plaintiff claims that staff threatened him. He does not, however, allege that any named

defendant threatened him. Even if he did, verbal threats, without more, do not support a claimed

constitutional violation. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997); McFadden v.

Lucas, 713 F.2d 143, 146 (5th Cir. 1983). Allegations of mere verbal abuse by prison guards

simply do not give rise to a cause of action under Section 1983. Bender v. Brumley, 1 F.3d 271,

274 n.4 (5th Cir. 1993); Siglar, 112 F.3d at 191. “[M]ere allegations of verbal abuse or epithets,

reprehensible though they may be, do not amount to a cognizable constitutional violation

under Section 1983.” Matthews v. LeBlanc, 2022 WL 2951759, at *1 (5th Cir. July 26, 2022).

Plaintiff does not state a claim of constitutional dimension. The Court should dismiss

these claims.

Recommendation

For the reasons above, IT IS RECOMMENDED that Plaintiff Glen Elder’s claims be

DISMISSED WITH PREJUDICE as legally frivolous and for failing to state claims on which

relief may be granted.

Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Rule 72(b), parties aggrieved by

6 In fact, Plaintiff suggests that Assistant Warden Johnson helped remove clogged toilets and

prevented “back ups” when the water returned to TPDC. [doc. # 12, p. 6]. In addition, Plaintiff

does not mention Mayor Bottley at all.

this recommendation have fourteen (14) days from service of this Report and Recommendation

to file specific, written objections with the Clerk of Court. A party may respond to another

party’s objections within fourteen (14) days after being served with a copy of any objections or

response to the district judge at the time of filing.

Failure to file written objections to the proposed factual findings and/or the

proposed legal conclusions reflected in this Report and Recommendation within fourteen

(14) days following the date of its service, or within the time frame authorized by Fed. R.

Civ. P. 6(b), shall bar an aggrieved party from attacking either the factual findings or the

legal conclusions accepted by the District Court, except upon grounds of plain error. See

Douglass v. United Services Automobile Association, 79 F.3d 1415 (Sth Cir. 1996).

In Chambers, Monroe, Louisiana, this 27" day of August, 2024.

th Ae

Kayla Dye iV c Gisky |

United States Magistrate Judge

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