Preston v. Bass

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

MONROE DIVISION

FREDERICK CHARLES PRESTON, JR. CIVIL ACTION NO. 25-0117

SECTION P

VS.

JUDGE TERRY A. DOUGHTY

NOLAN BASS, JR., ET AL. MAG. JUDGE KAYLA D. MCCLUSKY

REPORT AND RECOMMENDATION

Plaintiff Frederick Charles Preston, Jr., a prisoner at Catahoula Correctional Center

("CCC") proceeding pro se and in forma pauperis, filed this proceeding on approximately

January 30, 2025, under 42 U.S.C. § 1983. He names the following defendants: Warden Nolan

Bass, Jr., Captain Victor Smith, Lieutenant Cameron Bethel, Correctional Officer S. Neal,

Lieutenant Lundy, Correctional Officer Betty Dunmore, Sergeant Burks, Correctional Officer

Davis, Correctional Officer T. Harvey, Nurse D. Harvey, Lieutenant Robert Clark, and

Correctional Officer Brown.1

For reasons below, the Court should retain the following: (1) Plaintiff's excessive force

claims against Smith and Bethel; (2) his claims that Smith, T. Harvey, Davis, Burks, and Lundy

failed to provide decontamination measures after Smith sprayed him with mace; and (3) his

conditions of confinement claims that Smith and Bethel returned him to a cell filled with mace

after spraying him with mace. The Court should dismiss Plaintiff's remaining claims.2

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.

2 Plaintiff does not state any claims on which relief may be granted against Defendants Bass,

Neal, Dunmore, Nurse Harvey, Clark, or Brown.

Background

Plaintiff claims that defendants at Tensas Parish Detention Center ("TPDC") retaliated

against him because of a previous lawsuit he filed against officials at TPDC, including Warden

Nolan Bass, Jr., and Nurse D. Harvey. See Frederick Charles Preston, Jr. v. Pat Smith, et al.,

3:23-cv-0324 (W.D. La. 2023). In the previous lawsuit, the Court, inter alia, initially dismissed

Plaintiff's claims against Bass but retained Plaintiff's claims against Nurse Harvey. Id. at Docs.

9, 12. Plaintiff later settled his claims against Nurse Harvey. Id. at Doc. 41. He states that the

parties reached a settlement on October 8, 2024. [doc. # 1, p. 4].

Plaintiff claims that from when he settled his prior lawsuit to when he was transferred to

CCC on January 17, 2025, he was "the target of name calling, above normal searches, [j]eers,

[and] harassment[.]" [doc. # 1, p. 4]. He states that he was "well known around the jail for being

the lawsuit man because the spreading knowledge of the money [he] received from Tensas."

[doc. # 5, p. 5]. He alleges that "shortly after the former case was settled[,]" staff denied the

"smallest of request[s] . . . for things like toilet paper or bed linens . . . ." Id. Staff would instead

tell him to buy the items because he had money. Id. Other prisoners would receive these items

upon request. Id. He asserts that when he asked Ms. Bass3—who is Warden Bass's relative and

who works in the commissary—about missing items in his orders, she would comment about

Plaintiff "spending money [he did not] deserve and how they [were going to transfer him] as

soon as [he] [gave] some of 'that money back.'" Id. He claims he was searched "on multiple

occasions for no reason . . . ." Id.

On December 17, 2024, Plaintiff was placed in lockdown because Correctional Officer

Ezell charged him with masturbating in view of Correctional Officer Dunmore. [doc. # 1, p. 4].

3 Ms. Bass is not a defendant.

Plaintiff states that the charge was false and was retaliation for his prior lawsuit. [doc. #s 1, p. 4;

5, p. 5]. He alleges that later, on December 20, 2024, Defendant Dunmore apologized to him,

stated that she knew he did not masturbate "to her," and stated that "she did nothing to stop the

false accusation." [doc. # 5, p. 3]. He claims that because Dunmore apologized, she "was a part

of the retaliation of some staff members." Id.

In lockdown, Plaintiff attempted to speak to Captain Smith. [doc. # 1, p. 5]. Captain

Smith stated that he did not want to speak to Plaintiff. Id. When Plaintiff informed Smith that

the charge against him was false, Smith warned Plaintiff that he would spray him in the mouth

with mace if he did not "shut the fuck up[.]" Id. Plaintiff reiterated his innocence and stated that

Smith did not want to listen to him. Id. Plaintiff claims that Smith, without cause, then sprayed

him with mace on his face and directly in his left eye. Id. Plaintiff maintains that before Smith

sprayed him, he did not pose a threat, was not being physically aggressive, was not causing a

disturbance, and did not disobey a direct order. [doc. #s 1, p. 4; 5, p. 1]. After Smith sprayed

him, Plaintiff struggled to breathe, his face burned and festered, and his eyes swelled and

blistered. [doc. # 1, p. 5]. Plaintiff had access to a sink in his cell to wash his eyes, but the sink

"barely had water flow" at the time. [doc. # 5, p. 7]. Plaintiff claims that Smith returned him to

the contaminated cell and did not allow him to shower or clean the cell. Id.

"During the night," Plaintiff "declared a medical emergency to C.O. Sammy and Lt.

Lundy[,]" who told him that "the day shift should have showered [him] and there was nothing

she [sic] could do." [doc. # 1, p. 5]. He alleges that he told Lundy that he was maced and "had

no property[,]" but Lundy did not allow him to shower or have a mattress or blanket and

"allowed [him] to suffer through the night." [doc. # 5, pp. 3, 7]. Lundy allegedly stated that "the

day shift should have showered [Plaintiff] and" given him a mattress and that "it wasn't her

responsibility to do so." Id. at 7. Plaintiff told Lieutenant Clark that he needed to shower and

clean his cell, but he claims that Clark ignored his request. Id. at 6. He "declared a medical

emergency for [his] eyes to Lt. Cameron Bethel who told [him] that she was counting and left

without returning." [doc. # 1, pp. 5-6]. Minutes later, he asked Defendants T. Harvey, Davis,

and Burks for care for his eyes, but they ignored him even after seeing the condition of his eyes.

[doc. # 1, p. 6]. Plaintiff claims that Defendant Neal was deliberately indifferent "when she

didn't send [him] to medical" after he declared a medical emergency for his eyes. [doc. # 5, p.

3]. Twenty-four hours passed, and he was not "given the opportunity to shower or clean" his

cell. [doc. # 1, p. 6].

On December 18, 2024, twenty-four hours after Smith sprayed Plaintiff with mace,

Plaintiff told Smith that he had not showered or received his personal property, mattress, or a

blanket. [doc. # 1, p. 6]. When Smith told Plaintiff that he could obtain the items from "the

officer who placed [him] on lockdown[,]" Plaintiff responded that he would not be able to wait

two more days (when Lieutenant Clark was scheduled to return). Id. Smith then asked Plaintiff

what he was "going to do about it" and told Plaintiff to "make sure to tell them (the federal

court)" when he filed his lawsuit that Plaintiff liked to expose himself to women. Id. Plaintiff

notes that up "to that point, [he] hadn't once mentioned suing anyone[,] which led" him to "know

that a nefarious retaliation was at hand spearheaded by Warden Bass and his staff." Id. Plaintiff

claims that he knew Smith was retaliating when he sprayed Plaintiff with mace the previous day

because of Smith's later comment about filing a lawsuit in federal court. [doc. # 5, p. 2].

"Less than two hours after the encounter with Captain Smith," Plaintiff told Defendant

Bethel that he would not return to his cell without medical attention and without speaking to a

ranking officer about not being able to shower. [doc. # 1, pp. 6-7]. Bethel asked, "So you not

[sic] going back in your cell?" Id. at 7. Plaintiff responded, "No ma'am." Id. Plaintiff claims

that Bethel then sprayed him with mace at "point blank range" while he was on his knees with

his hands on his head, compliant, respectful, and not posing a threat. [doc. #s 1, p. 7; 5, p. 6].

He had not been "given any verbal order to return to [his] cell." [doc. # 1, p. 7]. Bethel then

walked away, leaving Plaintiff on the floor. [doc. # 5, p. 2]

"Minutes later Captain Smith responded[,]" saw Plaintiff sitting on the floor wiping mace

from his eyes, and stated that he should mace Plaintiff in the mouth because Bethel "didn't do it

right." [doc. # 1, p. 7]. Smith handcuffed Plaintiff and escorted him to a "drunk cage." Id.

There, "the mace began burning in earnest and [Plaintiff] fought for breath." Id. Nurse Harvey

heard Plaintiff's complaints and "saw the condition of [his] eyes." Id. Plaintiff "declared a

medical emergency[,]" and Nurse Harvey instructed Captain Smith to allow Plaintiff to "take a

cold shower." Id. Plaintiff claims that Nurse Harvey was deliberately indifferent to his "medical

emergency declaration for" his eyes after Bethel sprayed him with mace. [doc. # 5, p. 4]. After

Plaintiff showered, he received some of his personal property, a blanket, and a mattress. Id.

Plaintiff faults Smith and Bethel for "reintroducing" him to a "contaminated cell after"

they maced him. [doc. # 5, p. 2].

Plaintiff states that on December 19, 2024, he "turned in a sick call to C.O. T. Harvey to

get medical attention" for his eyes, and he was "told that [he] would be seen the next day on 12-

20-24[,]" but he "wasn't seen" until January 3, 2025. [doc. # 1, pp. 7-8].

Plaintiff requested caselaw from the law library on December 19, 2024. [doc. # 1, p. 8].

He never received any "paperwork." Id. He "made this known in writing" and in person to

Warden Bass and Captain Smith, but he never received "anything from the law library." [doc. #

1, p. 8].

Also on December 19, 2024, a disciplinary board "headed by Captain Smith" sentenced

Plaintiff to thirty days in lockdown. [doc. # 1, p. 8].

On December 20, 2024, Plaintiff punched a steel sheet covering concrete and broke his

right hand. [doc. # 1, p. 8]. He claims that Defendants Dunmore and Brown did not return to

him after he informed them of his injury. Id. at 9. Brown ignored Plaintiff and told him that he

should not have punched the wall. [doc. # 5, p. 4]. Dunmore allegedly saw Plaintiff break his

hand, saw that his knuckle was in the middle of his hand, knew his hand was broken, but did not

"take [him] to medical when [he] declared a medical emergency." Id. at 3. He also claims that

Lieutenant Lundy failed to arrange medical care for his hand. [doc. # 1, p. 9]. He alleges that

Lundy saw his hand and acknowledged that it was broken, but she "did nothing to get [him]

medical attention" and stated "there was nothing she could do because there was no one" to take

him to a hospital. [doc. # 5, p. 3]. He claims that Bethel saw the condition of his hand but failed

to take him "to medical." Id. at 2. He claims that Burks was deliberately indifferent because she

saw his broken hand and said that there was nothing she could do about it. Id. at 3. He claims

that Neal saw his hand yet responded with deliberate indifference. Id. at 3. He claims that

Officer Davis saw his broken hand yet did nothing. Id. He claims that T. Harvey was

deliberately indifferent to his hand injury. Id. at 4. He claims that Defendant Clark denied him

medical care even though Clark knew his hand was broken. Id.

On December 21, 2024, Plaintiff asked Defendant Dunmore for medical care for his hand

and eye, "but nothing was done." [doc. # 1, p. 9]. Hours later, Defendant Neal escorted Plaintiff

to a nurse, who arranged medical care for Plaintiff's hand. Id. Plaintiff received x-rays, a cast, a

prescription for ibuprofen, and a splint at Franklin Medical Center. Id. He was diagnosed with a

"fracture of the fifth metacarpal bone" on his right hand. [doc. # 5, p. 8]. On discharge, he was

instructed to schedule an appointment "the upcoming week" because he "may require surgery by

the orthopedic surgeon." [doc. # 1, pp. 9-10]. Plaintiff claims that the "appointment was never

made" before he was transferred to CCC on January 17, 2025. Id. at 10. In an amended

pleading, Plaintiff alleges that Warden Bass "didn't make sure that a medical order from the

hospital was honored . . . ." [doc. # 5, p. 1].

On December 25, 2024, Plaintiff "reminded C.O. T. Harvey that [he] hadn't been seen by

medical yet" and that he "continued to hurt and have blurred vision." [doc. # 1, p. 10].

On December 27, 2024, Plaintiff submitted "another medical request reminding medical

that [he] hadn't been seen yet." [doc. # 1, p. 10]. On December 30, 2024, Plaintiff submitted a

"request form with a handwritten letter to Warden Bass detailing everything contained in this

complaint and all that had happened since coming to lockdown." [doc. # 1, p. 10].

On January 3, 2025, a nurse practitioner diagnosed Plaintiff with an eye infection and

prescribed him ointment. [doc. #s 1, p. 10; 5, p. 8]. Plaintiff claims, "This injury is caused by

the staff of Warden Bass and their deliberate indifference to my serious medical needs." [doc. #

1, p. 10].

Plaintiff claims that Warden Bass did not allow him to shower from January 4-9, 2025.

[doc. #s 1, p. 10; 5, p. 1].

Plaintiff claims that from December 17, 2024, until January 8, 2025, he was not allowed

to use the telephone, even though the warden allowed inmates in lockdown to use the telephone

every other day. [doc. # 1, p. 11]. Plaintiff claims that this was "a part of the retaliation against

[him] as well as cruel and unusual punishment." Id. He claims that Warden Bass, out of

retaliation, allowed his staff to prohibit him from using the telephone. [doc. # 5, p. 1].

Plaintiff states that someone stole his money and property in lockdown. [doc. # 1, p. 11].

In an amended pleading, he claims that staff "allowed someone to access [his] commissary

account and steal over $400 by transferring it to a phone account . . . ." [doc. # 5, p. 5].

Plaintiff claims: "Out of retaliation, Warden Nolan Bass purposely transferred me

knowing full well that my money was missing and that I wouldn't stop my inquiries until I found

out what was going on." [doc. # 1, p. 10].

Plaintiff claims that Warden Bass is "ultimately responsible for each of the violations of

each staff member named in this complaint." [doc. # 5, p. 1]. He states that Bass was

responsible for "any and all violations of [his] constitutional rights by staff under his direct

authority." Id.

Plaintiff seeks monetary compensation and injunctive relief. [doc. # 1, p. 13].

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.4 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

frivolous or malicious, if it fails to state a claim on which relief may be granted, or if it seeks

4 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.”

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 of 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. Excessive Force

When a prison official is accused of using excessive physical force in contravention of

the Eighth Amendment’s Cruel and Unusual Punishments Clause, the core inquiry is “whether

force was applied in a good-faith effort to maintain or restore discipline, or maliciously and

sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6 (1992) (citing Whitley v. Albers,

475 U.S. 312, 320-21 (1986)). “Force beyond that reasonably required to maintain or restore

discipline is ‘wanton and unnecessary.’” Perez v. Collier, 2021 WL 4095263, at *2 (5th Cir.

Sept. 8, 2021) (quoting Hudson, 503 U.S. at 7). “This standard looks to an official’s subjective

intent to punish.” Id.

However, not every malevolent touch by a prison guard gives rise to a federal cause of

action. Hudson, 503 U.S. at 9. The Eighth Amendment does not protect against “de minimis”

use of physical force, so long as the use of force is not of a sort “repugnant to the conscience of

mankind.” Id. (citation and internal quotation marks omitted). Courts consider the following

factors: (1) the extent of the injury suffered; (2) the need for application of force; (3) the

relationship between that need and the amount of force used; (4) the threat reasonably perceived

by the responsible officials; and (5) any effort made to temper the severity of a forceful response.

Gomez v. Chandler, 163 F.3d 921, 923 (5th Cir. 1999).

A. Smith's Use of Force

The Court should retain Plaintiff's excessive force claim against Captain Smith. In

lockdown, Plaintiff attempted to speak to Captain Smith. [doc. # 1, p. 4]. Captain Smith stated

that he did not want to speak. Id. When Plaintiff informed Smith that the charge against him

was false, Smith warned Plaintiff that he would spray him in the mouth with mace if he did not

"shut the fuck up[.]" Id. Plaintiff reiterated his innocence and stated that Smith did not want to

listen to him. Id. Plaintiff claims that Smith, without cause, then sprayed him with mace on his

face and directly in his left eye. Id. Plaintiff maintains that before Smith sprayed him, he did not

pose a threat, was not being physically aggressive, was not causing a disturbance, and did not

disobey a direct order. [doc. #s 1, p. 4; 5, p. 1]. After Smith sprayed him, Plaintiff struggled to

breathe, his face burned and festered, and his eyes swelled and blistered. [doc. # 1, p. 5].

Plaintiff arguably suffered greater-than-de minimis injury. He also plausibly alleges that

Smith had little need to use force because he was not a threat, was not causing a disturbance, and

did not disobey a direct order. Absent warning Plaintiff once that he should refrain from

speaking, there is no indication that Smith tried to temper the severity of a forceful response.

Plaintiff does suggest that he disobeyed Smith's instruction to stop talking. But construing

Plaintiff’s allegations liberally and in his favor at this early stage of the proceeding, the Court

should retain this claim.

B. Bethel's Use of Force

Plaintiff claims that Lieutenant Bethel sprayed him with mace at "point blank range" even

though he was on his knees with his hands on his head, compliant, respectful, and not posing a

threat. [doc. #s 1, p. 7; 5, p. 6]. He does suggest that Bethel indicated that he should he return to

his cell and that he disobeyed, but he states that Bethel never gave him a direct verbal order. The

Court should retain this claim against Bethel.

3. Medical Care

To plead a constitutional violation of denial of medical care, a plaintiff “must

demonstrate that a government official was deliberately indifferent to ‘a substantial risk of

serious medical harm.’” Bailey v. E. Baton Rouge Par. Prison, 663 F. App’x 328, 330 (5th Cir.

2016) (quoting Wagner v. Bay City, 227 F.3d 316, 324 (5th Cir. 2000)). A prison official acts

with deliberate indifference to an inmate’s health “only if he knows that [the] inmate[ ] face[s] 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); see Reeves v. Collins, 27 F.3d 174,

176-77 (5th Cir. 1994) (applying Farmer to a denial of medical care claim). A plaintiff must

establish that a prison official “refused to treat him, ignored his complaints, intentionally treated

him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard

for any serious medical needs.” Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).

“[N]either an incorrect diagnosis nor the failure to alleviate a significant risk that should

have been perceived, but was not, is sufficient to establish deliberate indifference.” Blank v.

Bell, 634 F. App’x 445, 448 (5th Cir. 2016). “Unsuccessful treatment, medical malpractice, and

acts of negligence do not constitute deliberate indifference; nor does a prisoner’s disagreement

with his medical treatment, absent exceptional circumstances. Moreover, a delay in treatment is

not unconstitutional, unless there has been deliberate indifference that results in substantial harm.

In short, [d]eliberate indifference is an extremely high standard to meet.” Id. (internal quotation

marks and quoted sources omitted); see Alton v. Tex. A & M Univ., 168 F.3d 196, 201 (5th Cir.

1999) (“Actions and decisions by officials that are merely inept, erroneous, ineffective, or

negligent do not amount to deliberate indifference.”); Frazier v. Keith, 707 F. App’x 823, 824

(5th Cir. 2018) (“The choice between forms of treatment is a classic example of a matter of

professional judgment and does not support a finding of deliberate indifference.”).

A. Decontamination After Smith Sprayed Plaintiff With Mace

i. Defendant Smith

Plaintiff plausibly alleges that he had a serious medical need for decontamination and that

Smith was deliberately indifferent to a substantial risk of serious harm in failing to provide

decontamination measures after spraying Plaintiff with mace.

Plaintiff did have access to a sink in his cell. [doc. # 5, p. 7]. And the Fifth Circuit has

stated that pepper spray “‘[d]econtamination consists primarily of flushing the eyes with water.’”

Hoke v. Anderson, 799 F. App'x 224, 226 (5th Cir. 2020) (quoting Wagner v. Bay City, 227 F.3d

316, 319 n.1 (5th Cir. 2000)); see Amos v. Jefferson, 861 F. App'x 596, 602 (5th Cir. 2021)

(noting that a nurse explained to a prisoner that the proper method to decontaminate after being

sprayed with a chemical agent is to use running water, which was available in the prisoner’s

cell).5 However, Plaintiff states that the sink "barely had water flow" at the time. The pleadings

provide little indication of the extent to which he could use the water from the sink. It is

plausible—construing the allegations liberally and in Plaintiff’s favor—that Plaintiff was unable

to use the sink to decontaminate himself.

ii. Lieutenant Clark, Lieutenant Bethel, and Officer Neal

Plaintiff writes that Lieutenant "Clark was the supervising officer on shift on 12-17-

2024[.]" [doc. # 5, p. 7]. He claims that he told Clark that he needed to shower and clean his

cell, but Clark ignored his request. Id. He "declared a medical emergency for [his] eyes to Lt.

Cameron Bethel who told [him] that she was counting and left without returning." [doc. # 1, pp.

5-6]. Plaintiff claims that Defendant Neal was deliberately indifferent "when she didn't send

[him] to medical" after he declared a medical emergency for his eyes. [doc. # 5, p. 3].

5 See also Martin v. Seal, 510 F. App'x 309, 315-16 (5th Cir. 2013) (“[A]fter each round of

chemical treatment, they examined Martin, determined that he was not injured, and offered him a

shower. Such actions counter Martin’s allegations of deliberate indifference.”); King v. City of

Bossier City, 2007 WL 1791215, at *4 (W.D. La. June 19, 2007) (“[T]o the extent plaintiff

claims that he was provided inadequate medical care following the alleged multiple bursts of

pepper spray . . . plaintiff was allowed to rinse out his eyes which shows that defendants were not

deliberately indifferent . . . .”); Ward v. Shaw, 2015 WL 5712812, at *3 (S.D. Miss. Sept. 29,

2015) (finding no deliberate indifference where an inmate was allowed to shower twice after the

administration of pepper spray, reasoning, “although his treatment may not have been the best

that money can buy, this course of treatment did not demonstrate deliberate indifference to his

medical needs.”); Hamilton v. Orr, 2023 WL 2878820, at *4 (M.D. La. Mar. 22, 2023), report

and recommendation adopted, 2023 WL 2868008 (M.D. La. Apr. 10, 2023) (finding that a nine-

hour delay between when a prisoner was sprayed with a chemical agent and when he was

allowed to shower did not state a claim of constitutional dimension).

The Court should dismiss these claims because Plaintiff does not allege that these

defendants knew of his serious medical need and that they were aware Plaintiff was exposed to a

substantial risk of serious harm. Clark, according to Plaintiff's allegations, only knew that

Plaintiff wanted a shower and a cleaner cell. Bethel and Neal only knew that Plaintiff was

declaring a medical emergency for his eyes. He does not allege, for instance, that he told the

defendants that he was recently sprayed with mace and had not showered.6 The undersigned

could speculate that defendants viewed the condition of Plaintiff's eyes and that they therefore

knew of Plaintiff's condition and medical needs from his appearance alone, but Plaintiff is the

master of his complaint, and he does not allege this.7

6 See Ford v. Anderson Cnty., Texas, 102 F.4th 292, 317 (5th Cir. 2024) ("A singular denial of a

request to see a doctor—absent more details that would unambiguously indicate a medical

crisis—does not amount to deliberate indifference.").

7 See generally Rombach v. Culpepper, 2021 WL 2944809, at *5 (5th Cir. July 13, 2021) (finding

that no defendant knew the plaintiff was exposed to a substantial risk of serious harm where the

plaintiff only told them that he “did not feel well and [that] he wanted to go to the hospital.”);

Roberts v. Lessard, 841 F. App'x 691 (5th Cir. 2021) (Correctional center guards were not

subjectively aware that an inmate faced substantial risk of harm even though guards were aware

that the inmate was displaying stroke symptoms; the inmate's symptoms, which included

sweating, slurring speech, and trouble controlling movements, could also have suggested that he

was intoxicated, and it was uncontested that guards believed the inmate was intoxicated); Trevino

v. Hinz, 751 F. App'x 551, 556 (5th Cir. 2018) (“Plaintiffs’ own allegations show that Trevino’s

symptoms were initially ambiguous, and that Officers Hauck and Hinz were therefore not

unreasonable in believing she did not require immediate medical attention. Trevino vomited, had

several shaking episodes, and told the officers she was sick. None of these symptoms clearly

indicated Trevino was undergoing an emergency necessitating immediate medical attention.”);

Cleveland v. Bell, 938 F.3d 672 (5th Cir. 2019) (noting that “actual knowledge is an essential

element” and finding, where a nurse thought there was nothing wrong with Cleveland and

believed he was faking illness, that the nurse did not draw the inference that Cleveland was

experiencing a life-threatening medical emergency).

iii. Defendants T. Harvey, Davis, and Burks

Plaintiff claims that he asked Defendants T. Harvey, Davis, and Burks for care for his

eyes, but they ignored him. [doc. # 1, p. 6]. Unlike his claims above against Bethel and Clark

above, Plaintiff does allege that these defendants witnessed the condition of his eyes, which were

blistered, swollen, and red. Id. Construing these allegations liberally in Plaintiff's favor, the

Court should retain these claims against T. Harvey, Davis, and Burks.

iv. Defendant Lundy

The Court should also retain Plaintiff's claim against Lundy. Plaintiff "declared a

medical emergency to C.O. Sammy and Lt. Lundy[,]" who told him that "the day shift should

have showered [him] and there was nothing she [sic] could do." [doc. # 1, p. 5]. He told Lundy

that he was maced and "had no property[,]" but Lundy did not allow him to shower or have a

mattress or blanket and "allowed [him] to suffer through the night." [doc. # 5, pp. 3, 7]. Lundy

allegedly stated that "the day shift should have showered [Plaintiff] and" given him a mattress

and that "it wasn't her responsibility to do so." Id. at 7. Plaintiff, consequently, alleges that he

had a serious medical need and that Lundy knew he was exposed to a substantial risk of serious

harm absent decontamination measures.

B. Decontamination After Bethel Sprayed Plaintiff with Mace

i. Defendants Bethel and Smith

Plaintiff alleges that Bethel was deliberately indifferent to his serious need for

decontamination after she sprayed him with mace. After spraying him, she allegedly walked

away, leaving him on the floor. [doc. # 5, p. 2]. He also suggests that Smith was deliberately

indifferent. Minutes after Bethel sprayed him, Captain Smith responded, saw Plaintiff sitting on

the floor wiping mace from his eyes, and stated that he should mace Plaintiff in the mouth

because Bethel "didn't do it right." [doc. # 1, p. 7]. Smith handcuffed Plaintiff and escorted him

to a "drunk cage." Id.

As above, “a delay in treatment is not unconstitutional, unless there has been deliberate

indifference that results in substantial harm.” Blank, 634 F. App’x at 448. “[P]ain suffered

during a delay in treatment can constitute a substantial harm . . . .” Alderson v. Concordia Par.

Corr. Facility, 848 F.3d 415, 422 (5th Cir. 2017).

Plaintiff does not plausibly allege that any deliberate indifference and consequent delay

in decontaminating him caused him substantial harm. After Bethel sprayed him, Smith

responded in minutes and escorted him to a drunk cage in the front of the jail. [doc. # 1, p. 7].

Plaintiff states that this was when "the mace began burning in earnest and [he] fought for breath."

Id. Then, Plaintiff received a shower at the behest of Nurse D. Harvey. Id. Even assuming

(undoubtedly) that Plaintiff suffered pain between when Bethel sprayed him and when he

showered, the pain during the minutes-long delay does not reflect substantial harm. See

Batyukova v. Doege, 994 F.3d 717, 733 (5th Cir. 2021) ("We acknowledge that 15 minutes

appears to be a long time to be left on the ground while bleeding from gunshot wounds. It does

not, however, amount to a legally cognizable claim for deliberate indifference because

Batyukova has not presented any evidence that the delay resulted in 'substantial harm.'”).8

8 See also Huff v. Manfredi, 504 F. App'x 342 (5th Cir. 2012) (inconsequential delays in

treatment for the plaintiff's eye condition did not state a claim for relief); Flores v. Jaramillo,

389 F. App'x 393, 395-96 (5th Cir. 2010) ("Flores alleges an approximately twenty-minute delay

between when she first complained of health problems and when EMS was called. . . . Flores has

offered no evidence from which we can infer that the delay in treatment attributable to the

officers caused substantial harm."); Westfall v. Luna, 903 F.3d 534, 551 (5th Cir. 2018) (finding,

where the plaintiff was "moaning in pain during" a "half-hour delay in calling for medical

assistance[,]" that the plaintiff suffered "no substantial harm" from the delay).

Moreover, because the delay was only minutes, it is not plausible that Plaintiff was

exposed to a substantial risk of serious harm during the short delay. See Rogers v. Jarrett, 63

F.4th 971, 976 (5th Cir.), cert. denied, 144 S. Ct. 193 (2023) (opining that there was no

substantial risk of serious harm where the plaintiff received medical aid within minutes after

displaying severe symptoms).

The Court should dismiss these claims against Bethel and Smith.

ii. Nurse Harvey

Plaintiff claims that Nurse Harvey was deliberately indifferent to his "medical emergency

declaration for" his eyes after Bethel sprayed him with mace. [doc. # 5, p. 4].

Plaintiff does not plead a plausible constitutional violation. Nurse Harvey ordered

Captain Smith to allow Plaintiff to "take a cold shower." [doc. # 1, p. 7]. Nurse Harvey did not

refuse to treat Plaintiff, did not ignore any of his complaints, did not intentionally treat him

incorrectly, and did not engage in any similar conduct that clearly evinced a wanton disregard for

Plaintiff’s serious medical needs. Even assuming Plaintiff was exposed to a substantial risk of

serious harm (i.e., risk of eye damage due to the pepper spray), Plaintiff does not allege that

Harvey actively disregarded that risk of harm.

As above, the Fifth Circuit has stated that pepper spray “‘[d]econtamination consists

primarily of flushing the eyes with water.’” Hoke, 799 F. App'x at 226; see Amos, 861 F. App'x

at 602 (noting that a nurse explained to a prisoner that the proper method to decontaminate after

being sprayed with a chemical agent is to use running water, which was available in the

prisoner’s cell).9 The Court should dismiss this claim.

9 See supra, note 5.

iii. Correctional Officer T. Harvey

Plaintiff states that on December 19, 2024, he "turned in a sick call to C.O. T. Harvey to

get medical attention" for his eyes, and he was "told that [he] would be seen the next day on 12-

20-24[,]" but he "wasn't seen" until January 3, 2025. [doc. # 1, pp. 7-8]. On December 25, 2024,

Plaintiff "reminded C.O. T. Harvey that [he] hadn't been seen by medical yet" and that he

"continued to hurt and have blurred vision." [doc. # 1, p. 10].

Plaintiff, however, does not allege that T. Harvey was responsible for the delay in care.

He does not supply enough information to permit the Court to draw the reasonable inference that

T. Harvey is liable for the misconduct alleged, and he does not plausibly plead deliberate

indifference.10 See Iqbal, 556 U.S. at 678. The Court should dismiss this claim.

C. Initial Medical Care for Plaintiff's Broken Hand

On December 20, 2024, Plaintiff punched a steel sheet covering concrete and broke his

right hand. [doc. # 1, p. 8]. He claims that Defendants Dunmore and Brown did not return to

him after he informed them of his injury. Id. at 9. He claims that Brown ignored him and told

him that he should not have punched the wall. [doc. # 5, p. 4]. Dunmore allegedly saw him

break his hand, saw that his knuckle was in the middle of his hand, knew his hand was broken,

10 See Marshall v. Patel, 317 F. App'x 395, 396 (5th Cir. 2009) (concluding that an inexplicable

delay in receiving medication did not amount to deliberate indifference); Garcia v. Fed. Bureau

of Prisons, 459 F. App'x 458, 459 (5th Cir. 2012) (“The fact of delay in itself is not sufficient to

establish deliberate indifference. . . . [U]nexplained delays in dispensing medications constitute

negligence at most.”); Broussard v. Nelson, 503 F. App'x 259 (5th Cir. 2012) (holding, where the

plaintiff alleged that a nurse failed to provide prescribed medication despite his repeated requests

and failed to timely respond to his emergency call, that the plaintiff's “bare assertion” that the

nurse delayed responding to his emergency call did not demonstrate deliberate indifference and

did not “clearly evince” a “wanton disregard” for his medical needs); Kelm v. Tigner, 2020 WL

1490966, at *5 (W.D. La. Mar. 5, 2020), report and recommendation adopted, 2020 WL

1492548 (W.D. La. Mar. 26, 2020) (“Plaintiff simply alleges that ‘nothing happened’ after he

requested care, which prompts the question, why did ‘nothing’ happen?”).

but did not "take [him] to medical when [he] declared a medical emergency." Id. at 3. He claims

that Lieutenant Lundy failed to arrange medical care for his hand. [doc. # 1, p. 9]. Lundy saw

his hand and acknowledged that it was broken, but she "did nothing to get [him] medical

attention" and stated "there was nothing she could do because there was no one" to take him to a

hospital. [doc. # 5, p. 3]. He claims that Bethel saw the condition of his hand but failed to take

him "to medical." Id. at 2. He claims that Burks was deliberately indifferent because she saw his

broken hand and said that there was nothing she could do about it. Id. at 3. He claims that Neal

saw his hand yet responded with deliberate indifference. Id.at 3. He claims that Officer Davis

saw his broken hand and did nothing. Id. He claims that T. Harvey was deliberately indifferent

to his hand injury. Id. at 4. Finally, he claims that Defendant Clark denied him medical care

even though Clark knew his hand was broken. Id.

On December 21, 2024, Plaintiff asked Defendant Dunmore for medical care for his

hand, "but nothing was done." [doc. # 1, p. 9]. Hours later, Defendant Neal escorted Plaintiff to

a nurse, who arranged medical care. Id. Plaintiff received x-rays, a cast, a prescription for

ibuprofen, and a splint at Franklin Medical Center. Id. He was diagnosed with a "fracture of the

fifth metacarpal bone" on his right hand. [doc. # 5, p. 8].

As above, “a delay in treatment is not unconstitutional, unless there has been deliberate

indifference that results in substantial harm.” Blank, 634 F. App’x at 448. “[P]ain suffered

during a delay in treatment can constitute a substantial harm . . . .” Alderson, 848 F.3d at 422.

While the undersigned is sympathetic to Plaintiff’s plight, Plaintiff does not plead

substantial harm resulting from the one-day delay in receiving medical care. Plaintiff does

suggest that he suffered pain during the delay, but he does not describe sufficiently severe pain.

See Witt v. Bell, 551 F. App'x 240, 241 (5th Cir. 2014) (finding no substantial harm where the

plaintiff broke his big toes, could ambulate without difficulty, and endured a two-week delay in

getting an x-ray); Badeaux v. St. Landry Par. Sheriff's Dep't, 47 F.3d 425 (5th Cir. 1995) (finding

no substantial harm where “no more than five days elapsed following Appellant's first request for

medical treatment” for his knee and his treatment by a prison nurse, his care at hospitals, his pain

medication, and his surgery).11, 12 The Court should dismiss these claims.

11 Compare Bisby v. Garza, 342 F. App'x 969, 971 (5th Cir. 2009) (finding that pain following a

fall was not sufficiently severe during an hours-long delay in receiving an evaluation); Westfall v.

Luna, 903 F.3d 534, 551 (5th Cir. 2018) (finding no claim where (1) the plaintiff’s spinal injury

was not “impacted” by a 30 to 45-minute delay in care and (2) no substantial harm occurred

because the plaintiff did not detail the severity of her pain and alleged only that, during the delay,

she was “moaning in pain.”); with Easter v. Powell, 467 F.3d 459, 464 (5th Cir. 2006) (finding

substantial harm where the plaintiff had a history of cardiac problems and endured severe chest

pains, and the nurse responsible for the delay knew he had heart problems and lacked his heart

medication); Galvan v. Calhoun Cty., 719 F. App’x 372 (5th Cir. 2018) (holding that an inmate

eventually diagnosed with calculus of gallbladder with acute cholecystitis, stated a claim where

he alleged that prison officials failed for several days to answer his repeated requests to be taken

to the hospital for pain “so severe that he thought he might die.”); Harris v. Hegmann, 198 F.3d

153 (5th Cir. 1999) (finding a plausible claim where, following a failed procedure to remedy a

broken jaw, the plaintiff’s jaw was “rebroken” and he suffered constant excruciating pain during

the week-long delay in treatment); Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 422-

23 (5th Cir. 2017) (finding, where an inmate was stabbed and stomped in an attack lasting three

to five minutes, substantial harm because the inmate suffered a “tremendous amount of pain”

during the over week-long delay); Coleman v. Sweetin, 745 F.3d 756, 765-66 (5th Cir. 2014)

(finding substantial harm from a month-long delay where the plaintiff fell and “was in so much

pain that he was unable to lie down in bed or use the toilet properly,” pain overtook his entire

body, he was “out of it” due to the pain, and doctors eventually inserted four pins and a plate

during hip surgery).

12 See also Garrett v. Univ. of Texas Med. Branch, 261 F. App'x 759, 760 (5th Cir. 2008) (finding,

where the plaintiff suffered extreme pain from appendicitis, that he did not suffer “substantial

harm as a result of the two-day delay.”); Harris v. Walley, 436 F. App'x 372, 373 (5th Cir. 2011)

(finding, where the plaintiff suffered “constant pain” from a year-long delay in surgery to remove

several of his teeth, that he did not suffer substantial harm); King v. Kilgore, 98 F.3d 1338 (5th

Cir. 1996) (finding, where the plaintiff alleged that the delay in care “prolonged his asthma attack

and caused him pain, suffering, and discomfort[,]” that even though “an asthma attack is a

serious and potentially deadly problem,” the plaintiff did not suffer “substantial harm due to the

delay.”).

D. Appointment With a Specialist For Broken Hand

On discharge from the hospital, Plaintiff was instructed to schedule an appointment "the

upcoming week" for his broken hand because he "may require surgery by the orthopedic

surgeon." [doc. # 1, pp. 9-10]. Plaintiff claims that the "appointment was never made" before he

was transferred to CCC on January 17, 2025. Id. at 10. In an amended pleading, Plaintiff alleges

that Warden Bass "didn't make sure that a medical order from the hospital was honored . . . ."

[doc. # 5, p. 1]. Presumably, Plaintiff is alleging that Bass did not ensure that he received an

appointment with an orthopedic surgeon within four weeks after he received care at the hospital

(i.e., from December 21, 2024, to January 17, 2025, when he was transferred to a different

facility).

Plaintiff does not plausibly allege that Bass was deliberately indifferent to a substantial

risk of serious harm because he does not allege that Bass knew of the instruction from the

hospital to schedule the appointment. At best, Plaintiff alleges that on December 30, 2024, he

submitted a "request form with a handwritten letter to Warden Bass detailing everything

contained in this complaint and all that had happened since coming to lockdown." [doc. # 1, p.

10]. Even assuming this overarching letter detailed his medical needs and the instruction to

schedule an appointment with a specialist, Plaintiff does not allege that Bass ever received, read,

reviewed, and denied his request; consequently, he does not allege that Bass was personally

involved in failing to provide the care he sought, and he does not plausibly allege that Bass knew

of a substantial risk of serious harm. 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).

In addition, Plaintiff does not plausibly allege that he was exposed to a substantial risk of

serious harm during the 27-day delay—from when he was discharged from the hospital to when

he was transferred to a different facility—in receiving an appointment. Even non-incarcerated

individuals with full insurance must often wait months to see a specialist, depending on the

locale, specialists’ schedules, the number of available specialists, and demand. See White v.

Rader, 2010 WL 1744652, at *4 (M.D. La. Mar. 29, 2010), report and recommendation

adopted, 2010 WL 1737139 (M.D. La. Apr. 28, 2010) (“[I]t is recognized that even persons who

are not confined in penal institutions must” endure delays before obtaining appointments with

chosen physicians). Moreover, to the extent Plaintiff claims he did not receive 'follow up' care,

complaints of not receiving follow-up examinations do “not rise to the level of deliberate

indifference.” Mathis v. Alexander, 49 F.3d 728 (5th Cir. 1995). The Court should dismiss this

claim.

E. Eye Infection

On January 3, 2025, a nurse practitioner diagnosed Plaintiff with an eye infection and

prescribed him ointment. [doc. #s 1, p. 10; 5, p. 8]. Plaintiff claims, "This injury is caused by

the staff of Warden Bass and their deliberate indifference to my serious medical needs." [doc. #

1, p. 10].

Federal Rule of Civil Procedure 17(b)(3) provides that the “[c]apacity to sue or be sued is

determined . . . by the law of the state where the court is located . . . .” Under Louisiana law, an

entity must qualify as a “juridical person,” which is an “entity to which the law attributes

personality, such as a corporation or a partnership.” LA. CIV. CODE art. 24. Here, "staff" does

not qualify as a juridical person. See Henderson v. Mid States Servs., Inc., 67 F. App’x 247 (5th

Cir. 2003) (finding that the plaintiff did not show “that the Medical Department is a legal entity

amenable to suit . . . .”).

Moreover, "Deliberate indifference [] cannot be shown through the actions of the

cumulative group." Martinez v. City of N. Richland Hills, 846 F. App'x 238, 243 (5th Cir. 2021).

"The court disregards bare assertions of collective responsibility, unsupported by concrete

factual allegations." Id. The Court should dismiss this claim.

4. 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.” 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). 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.

A. Returning Plaintiff to the Cell in Which He Was Maced

Plaintiff claims that Smith sprayed him with mace in his cell on December 17, 2024.

Plaintiff claims that Smith returned him to the cell without removing/sanitizing the mace. [doc.

# 1, p. 5]. Bethel sprayed Plaintiff with mace on December 28, 2024, outside of the cell.

Plaintiff does not specify whether any mace entered his cell after Bethel sprayed him. He claims

that after he showered and received personal property, a blanket, and a mattress, Smith and

Bethel returned him to the contaminated, mace-filled cell without giving him "the opportunity to

sanitize or clean it." [doc. #s 1, p. 7; 5, pp. 2, 4].

Construing these allegations liberally and in his favor, Plaintiff states plausible claims on

which relief may be granted. See Cardona v. Taylor, 828 F. App'x 198, 202 (5th Cir. 2020)

(officers ordered the plaintiff back into his cell which was still filled with tear gas, refused to

provide supplies for decontamination, denied him an opportunity to go to a medical department

for treatment of injuries and exposure to tear gas, and declined to house him in a cell free of tear

gas); Hope v. Harris, 861 F. App'x 571, 584 (5th Cir. 2021) (a prisoner was exposed to pepper

spray and tear gas in his cell “at least ten times through no fault of his own,” his cell was not

decontaminated, and on one occasion he was “left nude in a cell with the pepper spray still on his

body [without anything] to clean it off with for eight days.”). The Court should retain these

claims.

B. Lack of Personal Property, a Blanket, and a Mattress

Plaintiff claims that the night of December 17, 2024, after Smith sprayed him with mace,

he lacked his personal property, a blanket, and a mattress. He alleges that he told Defendant

Lundy that he "had no property[,]" but Lundy did not allow him to have a mattress or blanket

and "allowed [him] to suffer through the night." [doc. # 5, pp. 3, 7]. Lundy allegedly stated that

"the day shift should have" given him a mattress and that "it wasn't her responsibility to do so."

Id. at 7. On December 18, 2024, Plaintiff told Smith that he had not received his personal

property, mattress, or a blanket. [doc. # 1, p. 6]. When Smith told Plaintiff that he could obtain

the items from "the officer who placed [him] on lockdown[,]" Plaintiff responded that he would

not be able to wait two more days for that officer to return. Id. Plaintiff was, however, able to

obtain a blanket from his cellmate. [doc. # 1, p. 6]. Later on December 18, Plaintiff received

some of his personal property, a blanket, and a mattress.

Plaintiff does not state a constitutional claim. He does not plausibly allege that he

endured an extreme deprivation of any life necessity because he lacked these items for one night.

See Hope v. Harris, 861 F. App'x 571, 583 (5th Cir. 2021) ("[A]lthough Hope also generally

alleges excessive noise and sleep deprivation, . . . it is not clear if the alleged noise is serious

enough to cause sleep deprivation or how much sleep Hope actually gets. Without such

allegations, Hope has not alleged that he 'has been deprived of the minimal measure of life's

necessities.'"). Nor does Plaintiff plausibly allege that he was exposed to a substantial risk of

serious harm because he lacked these items. Lacking a mattress and a blanket for one night

could deprive one of sleep or warmth and thereby expose one to harm, but the deprivation of

sleep and/or warmth for one night is not, absent more, extreme and does not expose one to a

substantial risk of serious harm.13 The undersigned is sympathetic to Plaintiff's plight and does

not condone the defendants' alleged actions (or inaction), but ultimately he does not plausibly

allege 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 Fifth Circuit has “recognized as necessary

to constitute deliberate indifference.” See Davis v. Lithicum, 574 F. App'x 379, 380 (5th Cir.

2014). The Court should dismiss this claim.

C. Showers

Plaintiff claims that Warden Bass did not allow him to shower for five days. [doc. #s 1,

p. 10; 5, p. 1].

This claim could implicate a need to maintain adequate hygiene and health. Speculation

aside, Plaintiff does not allege that this condition deprived him of any identifiable life need.

Even if he did, the duration does not reflect an extreme deprivation, and Plaintiff fails to allege

13 See Jarvis v. Hall, 2023 WL 3818377, at *4 (5th Cir. June 5, 2023) (opining, where the

plaintiff lacked clothing, bedding, and personal hygiene items for 3-7 days, that, inter alia, the

"temporary deprivations" were not extreme "in light of their short duration.") (citing Novak v.

Beto, 453 F.2d 661, 665-66, 69 (5th Cir. 1971) (short-term solitary confinement without full

bedding was not severe); Hamilton v. Lyons, 74 F.3d 99, 106 n.8 (5th Cir. 1996) (short-term lack

of showers and sheets was not severe); see also Grissom v. Davis, 55 Fed. Appx. 756, 758 (6th

Cir. 2003) (seven days without mattress, sheets, or blanket was not a deprivation of basic human

needs and did not cause serious harm); O'Leary v. Iowa State Men's Reformatory, 79 F.3d 82, 84

(8th Cir.1996) (sleeping with no mattress or blanket for four days on a concrete slab in a cell

located 10 feet from an exterior door during winter did not deny plaintiff the minimal civilized

measures of life's necessities); Seltzer-Bey v. Delo, 66 F.3d 961, 964 (8th Cir.1995) (placement

in a cell without clothes, running water, a mattress or a blanket for two days was not

unconstitutional when the inmate did not suffer any injury or adverse health consequences).

that the conditions exposed him to a substantial risk of serious harm.14 See Brumley v.

Livingston, 459 F. App'x 470, 472 (5th Cir. 2012) (affirming dismissal of a plaintiff's claim that

he was denied showers "because he failed to properly allege that he was subjected to a

substantial risk of harm."). The Court should dismiss this claim.

D. Lack of a Telephone

Plaintiff claims that from December 17, 2024, until January 8, 2025, he was not allowed

to use the telephone, even though the warden allowed other inmates in lockdown to use the

telephone every other day. [doc. # 1, p. 11]. Plaintiff claims that Warden Bass allowed his staff

to prohibit Plaintiff from using the telephone. [doc. # 5, p. 1].

Plaintiff does not state that the condition deprived him of any need. He does not describe

an extreme deprivation of, for example, a need for social contact. Moreover, he does not allege

that he has been unable to contact, for instance, family or his lawyer. He also does not allege that

he lacked social interaction with others within the facility, and the interaction of which he was

allegedly deprived continued only approximately three weeks. This deprivation was not,

objectively, sufficiently serious.

Nor does Plaintiff allege that lacking a telephone for twenty-two days exposed him to a

substantial risk of serious harm. The Court should dismiss this claim. See Hill v. Estelle, 537

14 See Holloway v. Gunnell, 685 F.2d 150, 156 (5th Cir. 1982) (citing with tacit approval several

courts' opinions that "one or two showers a week is sufficient to satisfy constitutional

requirements."); Hamilton v. Lyons, 74 F.3d 99, 106 (5th Cir. 1996) (finding the denial of

showers for a three-day period de minimis); McAllister v. Strain, 2009 WL 500560, at *2 (E.D.

La. Feb. 25, 2009) (denying a claim of no showers for seven days); Simpson v. Epps, 2010 WL

3724546, at *6 (S.D. Miss. Sept. 15, 2010) (six days); Carter v. Strain, 2009 WL 3231826, at *2

(E.D. La. Oct.1, 2009) (eight days); c.f. Bradley, 157 F.3d at 1025 (finding that a plaintiff stated

a claim when he alleged that he was unable to bathe for several months, that he was forced to

clean himself with toilet water, and that the unhygienic conditions resulted in a fungal infection

requiring medical attention).

F.2d 214, 215 (5th Cir. 1976) (dismissing a claim where the plaintiffs did not complain of an

“inability to communicate with courts, counsel, or their families and friends” because

“regulations pertaining to making phone calls . . . do not constitute an abuse of the discretion

enjoyed by prison authorities.”); McDowell v. Litz, 419 F. App'x 149 (3d Cir. 2011) (a 90-day

suspension of telephone privileges neither represented a dramatic departure from accepted

standards for conditions of confinement nor deprived the prisoner of basic necessities).

5. Access to Court

Plaintiff requested caselaw from the law library concerning "what was going on with"

him. [doc. # 1, p. 8]. He never received any "paperwork." Id. He "made this known in writing"

and in person to Warden Bass and Captain Smith, but he never received "anything from the law

library."

To succeed on a claimed denial of access to courts, a plaintiff must show that he lost an

actionable claim or was prevented from presenting such a claim because of the alleged denial.

Lewis v. Casey, 518 U.S. 343, 356 (1996); Eason v. Thaler, 73 F.3d 1322, 1328 (5th Cir. 1996)

(holding that to state a claim of denial of access to the courts, a plaintiff must demonstrate that

his position as a litigant was prejudiced as a direct result of the denial of access). “[T]he

complaint should state the underlying claim in accordance with Federal Rule of Civil Procedure

8(a), just as if it were being independently pursued, and a like plain statement should describe

any remedy available under the access claim and presently unique to it.” Christopher v.

Harbury, 536 U.S. 403, 417-18 (2002).

The “injury requirement is not satisfied by just any type of frustrated legal claim.” Lewis,

518 U.S. at 353. Rather, a plaintiff must demonstrate that the lack of access prevented him from

filing or caused him to lose a case that attacks either his conviction or seeks “to vindicate ‘basic

constitutional rights’” in a civil rights action. Id. at 353-54 (quoting Wolff v. McDonnell, 418

U.S. 539, 579 (1974)).

“Denial-of-access claims take one of two forms: forward-looking claims alleging ‘that

systemic official action frustrates a plaintiff or plaintiff class in preparing and filing suits at the

present time,’ and backward-looking claims alleging that an official action has ‘caused the loss

or inadequate settlement of a meritorious case, the loss of an opportunity to sue, or the loss of an

opportunity to seek some particular order of relief.’” Waller v. Hanlon, 922 F.3d 590, 601 (5th

Cir. 2019) (quoting Christopher, 536 U.S. at 413-14).

“To maintain a backward-looking claim, a plaintiff must identify (1) a nonfrivolous

underlying claim; (2) an official act that frustrated the litigation of that claim; and (3) a remedy

that is not otherwise available in another suit that may yet be brought.” United States v. McRae,

702 F.3d 806, 830-31 (5th Cir. 2012); see Christopher, 536 U.S. at 413-14 ((“These cases do not

look forward to a class of future litigation, but backward to a time when specific litigation ended

poorly, or could not have commenced, or could have produced a remedy subsequently

unobtainable.”).

With respect to the inability to access a library or a claim that a library was deficient, an

inmate must “demonstrate that the alleged shortcomings in the library or legal assistance

program hindered his efforts to pursue a legal claim.” Lewis, 518 U.S. at 351. “He might show,

for example, that a complaint he prepared was dismissed for failure to satisfy some technical

requirement which, because of deficiencies in the prison’s legal assistance facilities, he could not

have known. Or that he had suffered arguably actionable harm that he wished to bring before the

courts, but was so stymied by inadequacies of the law library that he was unable even to file a

complaint.” Id. “[A]n inmate cannot establish relevant actual injury simply by establishing that

his prison's law library or legal assistance program is subpar in some theoretical sense.” Id. The

“inmate must show that a nonfrivolous, arguable claim he wished to bring has been lost or

rejected due to the deficiency or that the deficiency is currently preventing his presentation of

such a claim.” Sanchez v. Stephens, 689 F. App'x 797, 799 (5th Cir. 2017).

Here, Plaintiff appears to present a ‘backward-looking claim,’ suggesting that he lacked

case law concerning the issues he raises in this proceeding. But Plaintiff does not identify any

specific, non-frivolous legal claim that he could not raise because of defendants' actions, that he

raised and lost, or for which he could not obtain a remedy. See Sanchez, 689 F. App'x at 799

(“His assertions that he has been hindered in presenting claims challenging his criminal

conviction and prison disciplinary cases are conclusory. He fails to describe the claims with the

particularity needed to evaluate whether they were nonfrivolous and does not explain with

specificity how the absence of legal materials and assistance in Spanish actually hindered those

claims.”). In addition, Plaintiff does not allege how access to case law from the law library

would have aided him in this proceeding, “how he would have proceeded with access to a law

library,” what specific cases or law he would have cited if he had access to the law library, “or

how [his] claims would have been meritorious.” See Hopkins v. Ogg, 2019 WL 3761360, at *3

(5th Cir. Aug. 8, 2019). He does not demonstrate that any alleged lack of case law hindered his

efforts to pursue a legal claim. See Lewis, 518 U.S. at 351. Ultimately, Plaintiff does not

demonstrate that his position as a litigant was prejudiced as a direct result of the denial of access

to case law.

To the extent Plaintiff claims that his lack of access to the library affected his ability to

research any claims he raises here, “there is no constitutional right to ‘be able to conduct

generalized research.’” Douthit v. Dean, 568 F. App'x 336, 337 (5th Cir. 2014) (quoting Lewis,

518 U.S. at 351) (reasoning that the plaintiff’s “motion alleged that the library’s deficiencies

would cause immediate harm to his case, [but] he did not specify how the case would be harmed.

For example, he did not allege that he was unable to draft an adequate complaint or other

pleading without the missing volumes.”). There is no “abstract, freestanding right to a law

library or legal assistance.” Lewis, 518 U.S. at 351.

The Court should dismiss these claims.

6. Retaliation

Plaintiff claims that defendants at TPDC retaliated against him because of a previous

lawsuit he filed against officials at TPDC, including Warden Bass and Nurse D. Harvey. See

Preston, Jr., supra. In the previous lawsuit, the Court, inter alia, dismissed Plaintiff's claims

against Bass but retained Plaintiff's claims against Nurse Harvey. Plaintiff later settled his

claims against Nurse Harvey on October 8, 2024.

To prevail on a retaliation claim, a plaintiff must prove: (1) the exercise of a specific

constitutional right; (2) the defendants’ intent to retaliate for the exercise of that right; (3) a

retaliatory adverse act; and (4) causation, which in this context means that but for the retaliatory

motive, the complained of incident would not have occurred. McDonald v. Steward, 132 F.3d

225, 2331 (5th Cir. 1998). Courts must “carefully scrutinize” retaliation claims to “assure that

prisoners do not inappropriately insulate themselves from disciplinary actions by drawing the

shield of retaliation around them.” Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). The

standard "places a significant burden on an inmate as the court must regard claims of retaliation

with skepticism." DeMarco v. Davis, 914 F.3d 383, 388 (5th Cir. 2019) (quotation marks and

quoted source omitted).15

A plaintiff must produce direct evidence of motivation or allege a chronology of events

from which retaliation may be plausibly inferred. Woods v. Smith, 60 F.3d 1161 (5th Cir. 1995).

“Mere conclusory allegations of retaliation are insufficient[,] . . . a plaintiff must allege more

than his personal belief that he has been the victim of retaliation.” Jones v. Greninger, 188 F.3d

322, 325 (5th Cir. 1999). With respect to the third prong above, “Retaliation against a prisoner is

actionable only if it is capable of deterring a person of ordinary firmness from further exercising

his constitutional rights.” Smith v. Hebert, 533 F. App’x 479, 482 (5th Cir. 2013).

A. Name Calling, Searches, Jeers, and Harassment

Plaintiff claims that from when he settled his prior lawsuit to when he was transferred to

CCC on January 17, 2025, he was "the target of name calling, above normal searches, [j]eers,

[and] harassment[.]" [doc. # 1, p. 4]. He claims he was searched "on multiple occasions for no

reason . . . ." He does not, however, name a defendant responsible for these actions. The Court

should dismiss this claim.

B. Staff

Plaintiff alleges that "shortly after the former case was settled[,]" staff denied the

"smallest of request[s] . . . for things like toilet paper or bed linens . . . ." [doc. # 5, p. 5]. Staff

would instead tell him to buy the items because he had money. Id. He also claims that Warden

Bass conspired with staff to retaliate.

15 “The prospect of endless claims of retaliation on the part of inmates would disrupt prison

officials in the discharge of their most basic duties. Claims of retaliation must therefore be

regarded with skepticism, lest federal courts embroil themselves in every disciplinary act that

occurs in state penal institutions.” Id. (quoting Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994)).

The Court should dismiss these claims against "staff" because, as explained above, staff

does not qualify as a juridical person.

C. Ms. Bass

Plaintiff asserts that when he asked Ms. Bass—who is Warden Bass's relative and who

works in the commissary—about missing items in his orders, she commented about Plaintiff

"spending money [he did not] deserve and how they [were going to transfer him] as soon as [he]

[gave] some of 'that money back.'" Plaintiff, however, does not name Ms. Bass as a defendant,

and he does not identify any named defendant responsible for these actions. Thus, the Court

should dismiss this ostensible claim.

D. Officer Ezell

Plaintiff states that Officer Ezell falsely charged him with a sex offense in retaliation for

his prior lawsuit. [doc. # 1, p. 4]. But Plaintiff does not name Ezell as a defendant. The Court

should dismiss this ostensible claim.

E. Captain Smith

Plaintiff suggests that Smith sprayed him with mace on December 17, 2024, in retaliation

for the prior lawsuit Plaintiff settled on October 17, 2024. For context, the undersigned presents

Plaintiff's claim verbatim:

The way I knew that it was a retaliation on his part was when he told me to tell

them (federal courts) that I like to show my penis (He used the word 'dick') to

women when I file my lawsuit. At that point I hadn't even mentioned suing

anyone nor did I afterward. I never tell anyone I'm going to sue them before or

during the process.

[doc. # 5, p. 2].

At bottom, Plaintiff's claim is impermissibly speculative. Plaintiff does not explicitly

allege that Smith sprayed him with mace because Plaintiff settled a lawsuit over two months

earlier against Warden Bass and Nurse Harvey. And he does not produce (or allege) direct

evidence of motivation. Smith's stray comment about filing a federal lawsuit, which he uttered a

day after spraying Plaintiff with mace, was, under Plaintiff's allegations, in response to Plaintiff's

request for a shower, his personal property, his mattress, and a blanket (i.e., not in response to

spraying Plaintiff with mace). [doc. # 1, p. 6]. In addition, the comment is not connected to

Plaintiff's prior lawsuit (which he filed on approximately March 9, 2023, well over one year

before Smith sprayed him with mace). At best, Smith's comment appears to be in response to

Plaintiff allegedly exposing himself to Officer Dunmore.

Nor does Plaintiff allege a chronology of events from which retaliation may be plausibly

inferred. Plaintiff filed his prior lawsuit on approximately March 9, 2023. He settled the lawsuit

on approximately October 8, 2024. Smith sprayed Plaintiff with mace on December 17, 2024,

over one year after Plaintiff filed the prior lawsuit and over two months after Plaintiff settled the

lawsuit. This does not reflect a “tight chain of events” between the predicate events and the

alleged retaliatory acts. Compare Johnson v. Collier, 854 F. App'x 621, 622 (5th Cir. 2021)

(finding, where the plaintiff alleged that the defendant retaliated “a year” after the plaintiff

named the defendant in a prior lawsuit, that “[t]he gap in time between Johnson's filing of that

suit and the allegedly retaliatory transfer is too great to support an inference of causation on its

own.”); with Petzold v. Rostollan, 946 F.3d 242, 253 (5th Cir. 2019) (finding that less than an

hour and even up to a month was a chronology of events from which retaliation could be

inferred).16

16 See also Trevino v. Gutierrez, 426 F. App'x 327, 330 (5th Cir. 2011) ("[T]he mere fact that an

undesirable action occurred after a long history of filing grievances against Moore does not

suffice to raise a plausible claim of retaliation."); Cardenas v. Young, 655 F. App'x 183, 185-86

(5th Cir. 2016) ("[T]he only complaints Cardenas made about government officials and witnesses

were made in or around September or October of 2012, five to six months before he was placed

Moreover, he does not allege that Smith was even aware of his prior lawsuit (to which

Smith was not a party).17 At best, Plaintiff mentions elsewhere in his pleading that he was "well

known around the jail for being the lawsuit man because the spreading knowledge of the money

[he] received from Tensas." [doc. # 5, p. 5]. Plaintiff's "personal belief that he was the victim of

retaliation is not sufficient to support a retaliation claim." Davis v. Young, 624 F. App'x 203, 206

(5th Cir. 2015); see Hines v. Texas, 76 F. App'x 564, 567 (5th Cir. 2003) ("At best, the

allegations in Hines's complaint show only that Hines has a subjective belief that he has been

retaliated against because of his litigiousness.").

The Court should dismiss this claim.

F. Nurse Harvey

Plaintiff claims that Nurse Harvey was "also a part of the retaliation staff because she was

the named defendant in [his] previous case . . . ." [doc. # 5, p. 4]. Plaintiff does not identify the

alleged retaliatory act. Rather, he sets forth a bald, formulaic cause of action. This claim is

impermissibly conclusory; the Court should dismiss it.18 See Jones v. Hosemann, 2020 WL

in segregation, and after he was placed in segregation. Thus, retaliation cannot be plausibly

inferred from the chronology of events alleged by Cardenas, and Cardenas's retaliation claim

alleges nothing more than Cardenas's personal belief that he is the victim of retaliation.").

17 See Hale v. Williams, 390 F. App'x 351, 352 (5th Cir. 2010) (finding no triable issue

concerning a retaliatory motive because the defendant was “was not even aware of” the

plaintiff’s act for which he claimed defendant retaliated); Armenta v. Pryor, 377 F. App'x 413,

416 (5th Cir. 2010) (finding no chronology of events where the plaintiff’s “grievances were filed

months before the alleged retaliatory act and” the plaintiff provided “no evidence that any of the

Defendants were named in, or had any knowledge of, his prior grievances or his lawsuit.”);

Baughman v. Seale, 761 F. App'x 371, 382 (5th Cir. 2019), cert. denied, 140 S. Ct. 1142 (2020);

Mark v. Spears, 2023 WL 5316554, at *5 (5th Cir. Aug. 17, 2023).

18 It appears that after setting forth a non-retaliation claim against almost every defendant,

Plaintiff then baldly labels the defendant's action or inaction retaliation, attempting to pad his

claims and set forth an additional cause of action without differentiating the underlying claim

from the retaliation claim.

3250038, at *4 (5th Cir. June 15, 2020) ("But all Jones alleges is that the individual defendants

acted with 'pretext' and 'in retaliation.' Those are purely legal conclusions.").

G. Warden Bass

Plaintiff claims that from December 17, 2024, until January 8, 2025, Warden Bass would

not allow him to use the telephone. He claims that this was "a part of the retaliation against

[him] as well as cruel and unusual punishment." The alleged retaliatory action is, however, de

minimis: lacking a telephone for twenty-two days does not, absent more, constitute an act which

would deter a person of ordinary firmness from further exercising his constitutional rights.19 The

Court should dismiss this claim.

Next, Plaintiff claims: "Out of retaliation, Warden Nolan Bass purposely transferred me

knowing full well that my money was missing and that I wouldn't stop my inquiries until I found

out what was going on." [doc. # 1, p. 10]. Plaintiff does not plausibly allege a retaliatory

adverse act. “[A] claim that an inmate was transferred to a more dangerous prison in retaliation

for an exercise of a constitutional right will support a Section 1983 claim.” Ward v. Fisher, 616

F. App'x 680, 684 (5th Cir. 2015). But Plaintiff does not allege that CCC is more dangerous than,

or inferior to, TPDC. Moreover, he does not allege that the transfer rendered him unable to

pursue his lost funds; rather, he states that he will not stop pursuing his funds and that he will

find "out what was going on." The Court should dismiss this claim.

19 See Petzold v. Rostollan, 946 F.3d 242, 254 (5th Cir. 2019) (concluding allegedly retaliatory

actions were de minimis because the inmate suffered no “serious consequences”); see generally

Weeks v. Collier, 2023 WL 7703823, at *7 (5th Cir. Nov. 15, 2023) (holding that confiscation "of

Tylenol and soap would not deter an ordinary person from pursuing his claims"); Mark v. Spears,

2023 WL 5316554, at *6 (5th Cir. Aug. 17, 2023) (finding, where an officer "coughed up phlegm

and spit it" in the plaintiff's food, that the act was de minimis).

Finally, Plaintiff suggests that all or almost all defendants were engaged in a wide-

ranging conspiracy, orchestrated by Bass, to retaliate against him for his prior lawsuit. However,

Plaintiff's ostensible claim is devoid of detail. Mere "conclusory allegations of conspiracy

cannot, absent reference to material facts, state a substantial claim of federal conspiracy.”

McAfee v. 5th Circuit Judges, 884 F.2d 221, 222 (5th Cir. 1989) (internal quotation marks and

citation omitted). Moreover, Plaintiff does not allege that the defendants agreed to retaliate

against him. See Leggett v. Comer, 280 F. App'x 333, 336 (5th Cir. 2008) (finding that the

plaintiff had no conspiracy claim where he did not allege that defendants had an agreement to

retaliate). The Court should dismiss this claim.

7. Stolen Money and Property

Plaintiff states that in lockdown, someone stole his money and property. [doc. # 1, p. 11].

In an amended pleading, he claims that staff "allowed someone to access [his] commissary

account and steal over $400 by transferring it to a phone account . . . ." [doc. # 5, p. 5].

To reiterate, "staff" is not a juridical entity amenable to suit. Thus, the Court should

dismiss this claim.

8. Supervisory Liability

Plaintiff claims that Warden Bass is "ultimately responsible for each of the violations of

each staff member named in this complaint." [doc. # 5, p. 1]. He states that Bass did nothing to

correct Plaintiff's mistreatment by staff and "was responsible for any and all violations of [his]

constitutional rights by staff under his direct authority." Id.

“Supervisory officials may be held liable only if: (i) they affirmatively participate in acts

that cause constitutional deprivations; or (ii) implement unconstitutional policies that causally

result in plaintiff’s injuries.” Mouille v. City of Live Oak, Tex., 977 F.2d 924, 929 (5th Cir. 1992).

“Vicarious liability does not apply to § 1983 claims.” Pierce v. Texas Dept. of Crim. Justice,

Inst. Div., 37 F.3d 1146, 1150 (5th Cir. 1994). “‘[A] plaintiff must show either [that] the

supervisor personally was involved in the constitutional violation or that there is a sufficient

causal connection between the supervisor’s conduct and the constitutional violation.’” Brown v.

Taylor, 911 F.3d 235, 245 (5th Cir. 2018) (quoting Evett v. Deep E. Tex. Reg’l Narcotics

Trafficking Task Force, 330 F.3d 681, 689 (5th Cir. 2003)).

Here, Plaintiff does not allege that Bass affirmatively participated in any act that caused a

constitutional deprivation or that there was a sufficient causal connection between their conduct

and any alleged constitutional violation.20 Instead, Plaintiff pleads only vicarious liability,

essentially naming Bass as a defendant (for this claim) solely because of the position or title Bass

holds. See Thompkins v. Belt, 828 F.2d 298, 305 (5th Cir. 1987) (“[M]isconduct of Sheriff Belt's

employees cannot be imputed to the sheriff individually . . . .”).

Nor does Plaintiff allege that Bass implemented an unconstitutional policy, practice,

custom, or procedure that deprived him of any constitutional right. See Lentworth v. Potter, 255

F. App'x 903, 905 (5th Cir. 2007) (opining, where the plaintiff alleged that the defendant failed to

"take corrective action" as to subordinates' acts, that the plaintiff did not allege that the

supervisors were personally involved in the acts or implemented an unconstitutional policy).

Accordingly, the Court should dismiss this claim.

20 See Dedrick v. Richards, 47 F.3d 425 (5th Cir. 1995) (“An official who is sued in her

individual capacity cannot be liable under § 1983 on the theory of respondeat superior; to be

liable she must have been personally involved in the plaintiff's injury.”); Salcido v. Univ. of S.

Mississippi, 557 F. App'x 289, 292 (5th Cir. 2014) (“To make out a § 1983 claim against the

Defendants in their individual capacities, Salcido must show that they were either personally

involved in the constitutional violations alleged or that their wrongful actions were causally

connected to the constitutional deprivation.”).

9. Injunctive Relief

“Under Article III of the Constitution, federal courts may adjudicate only actual, ongoing

cases or controversies.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990). “[A] case

is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable

interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969); Rocky v. King, 900

F.2d 864, 867 (5th Cir. 1990). Litigants “must have suffered, or be threatened with, an actual

injury traceable to the defendant and likely to be redressed by a favorable judicial decision.”

Spencer v. Kemna, 523 U.S. 1, 7 (1998) (internal quotation and citation omitted).

“This case-or-controversy requirement persists through all stages of federal judicial

proceedings.” Dierlam v. Trump, 977 F.3d 471, 476 (5th Cir. 2020). “If an intervening event

renders the court unable to grant the litigant any effectual relief whatever, the case is moot.” Id.

“A claim for declaratory and injunctive relief based on conditions of confinement is rendered

moot upon the prisoner's release or transfer from the facility.” Smith v. City of Tupelo,

Mississippi, 281 F. App'x 279, 282 (5th Cir. 2008).

Mootness is jurisdictional and must be raised sua sponte. Bailey v. Southerland, 821 F.2d

277, 278 (5th Cir. 1987).

Here, because Plaintiff is no longer incarcerated at TPDC, his requests for injunctive

relief are moot.21 See Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (determining that an

inmate’s transfer to a different unit rendered claims for declaratory and injunctive relief moot);

Lee v. Richland Par. Det. Ctr., 483 F. App'x 904 (5th Cir. 2012) (affirming that a detainee's

21 Plaintiff does not allege or suggest, and the record does not reveal, that there is a reasonable,

demonstrable probability that he will return to TPDC. See Hardwick v. Brinson, 523 F.2d 798,

800 (5th Cir. 1975); Murphy v. Hunt, 455 U.S. 478, 482 (1982).

request for injunctive relief was moot because the detainee was no longer housed at the detention

center). The Court should therefore dismiss Plaintiff’s requests for injunctive relief.

Recommendation

For the reasons above, IT IS RECOMMENDED that the following be DISMISSED

WITH PREJUDICE for failing to state claims on which relief may be granted: (1) Plaintiff

Frederick Charles Preston, Jr.'s claims that Clark, Bethel, and Neal failed to provide

decontamination measures after Smith sprayed Plaintiff with mace; (2) that Bethel and Smith

failed to provide decontamination measures after Bethel sprayed Plaintiff with mace; (3) that

Nurse Harvey and Officer T. Harvey failed to provide medical care after Bethel sprayed

Plaintiff; (4) that Dunmore, Brown, Lundy, Bethel, Burks, Neal, Davis, T. Harvey, and Clark

failed to provide initial medical care for Plaintiff's hand after he punched a wall; (5) that Warden

Bass failed to make an appointment with a specialist for Plaintiff's broken hand; (6) that

Plaintiff's eye infection was caused by a lack of medical care; (7) that Lundy and Smith failed to

give Plaintiff his personal property, a blanket, and a mattress; (8) that Bass did not allow Plaintiff

to shower and prohibited him from using a telephone; (9) Plaintiff's retaliation claims; (10)

Plaintiff's claim that staff allowed someone to steal his money; and (11) that Bass did not correct

the staff's mistreatment of Plaintiff.

IT IS FURTHER RECOMMENDED that Plaintiff's requests for injunctive relief be

DISMISSED WITHOUT PREJUDICE.

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

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 15 day of May, 2025.

Hal Kp Ve Chus Lexy

United States Magistrate Judge

42