RodrÍguez–sÁnchez v. Acevedo–vilÁ

763 F.Supp.2d 294

Favio RODRÍGUEZ–SÁNCHEZ, Plaintiff

v.Aníbal ACEVEDO–VILÁ, Miguel Pereira–Castillo, José A. Ortiz–Roque, Luis Fortuño–Burset, Defendants.

Civil 08–2238 (JA).

United States District Court, D. Puerto Rico.

Feb. 10, 2011.

Hector E. Guzman–Silva, Hector L. Ramos–Vega, Federal Public Defender's Office, Hato Rey, PR, Thomas Trebilcock–Horan, San Juan, PR, for Plaintiff.

OPINION AND ORDER

JUSTO ARENAS, United States Chief Magistrate Judge.

On October 28, 2008, plaintiff pro se Favio Rodríguez–Sánchez, an inmate at Correctional Institution Annex 296, Guayama, Puerto Rico, filed a civil rights complaint against the former governor of Puerto Rico, Aníbal Acevedo–Vilá, Miguel Pereira–Castillo, then head of Corrections for the Commonwealth of Puerto Rico, and Superintendent José A. Ortiz–Roque, warden of the Guayama prison. Summonses were returned executed on all three on January 26, February 3, and March 1, 2010. (Docket Nos. 24, 25, 27.) Answers were required by February 16, February 24, and March 22, 2010 respectively. On February 18, 2010, former governor Aníbal Acevedo–Vilá moved to quash service of process. The other two defendants failed to answer or otherwise plead. The motion to quash was granted on May 17, 2010. Rodríguez–Sánchez v. Acevedo–Vilá, 269 F.R.D. 116 (D.P.R.2010). On June 30, 2010, I appointed the Federal Public Defender to represent plaintiff. (Docket No. 34.) Plaintiff then requested entry of default on July 28, 2010. (Docket No. 37.) Default was entered by the Clerk on October 20, 2010. (Docket No. 43.) A default hearing was held before me on February 8, 2011. (Docket Nos. 64 & 66.) Plaintiff appeared represented by Assistant Federal Public Defenders Héctor L. Ramos–Vega and Thomas Trebilcock–Horan. The defaulted defendants failed to appear or be represented.

Plaintiff Favio Rodríguez–Sánchez testified that he lives in the West Detention Center (Mayagüez) in medium security, has been imprisoned for five years and is eligible for release in August 2011. Previously he has been in several prisons including a prison known as Guayama Annex 296, a maximum security institution. He explained that maximum security entails being locked in a cell for 23 hours daily with one hour granted for recreation, this outside the cell. Prior to arriving in Guayama Annex 296, he had been in two correctional institutions, the first one being in Aguadilla, Puerto Rico. He arrived in Guayama Annex 296 due to a mass transfer from a Ponce correctional institution on September 25, 2007. Because it is a maximum security facility, he noted that there should have been one person per cell but there were two persons, including himself. The cell number was 205, located in Building 5A. His cell mate was Josue Torres. Torres had lived in that cell for about three months prior to plaintiff's arrival.

Plaintiff lived in cell 205 from September 25 to October 31, 2007. The cell was designed for a person with disabilities. There was no adequate place to sit. The toilet was clogged, ruined, and useless. It never worked. Cell 205 was next to the showers, and runoff water channeled through the cell. Foul odors came from the fluid running through his cell. The electric lights were put on during the routine counts and normally, he could not put the light on, so the cell mates were in darkness day and night for the most part. Rodents could come in because there was nothing to obstruct their entering the cell. The windows were made of steel rods through which mice, roaches and mosquitos entered. There were no screens. Plaintiff would defecate in plastic bags and throw the bags out the window. Sometimes during certain hours, he could ask for permission to use another cell where a bucket would be used to deposit the feces. That hour was the recreation hour allowed under maximum security.

Plaintiff and his roommate received supplies every 15 days so if there was no plastic bag or permission to go to another cell, he had to wait. The inmates were given the bags for the trash for the whole section. His cell mate would have the same, maybe one or two bags a week, so one bag was for him and one bag was for plaintiff. If the bag was used once, one had to throw it away. If there was no bag, then permission was requested to use another cell. He was also threatened with administrative charges for throwing feces out the window. He developed pain in his left side. He would have to urinate in the sink because the toilet did not flush. He developed fungus on his feet ad could not walk around the cell because of the filth. Therefore he spent a good deal of time in his bunk cell.

Plaintiff would complain to every officer that would come to the cell. He presented complaints to the prison administration, and complained to the Puerto Rico Civil Rights Commission. He complained to everyone that he could. He made an administrative complaint to the director of administrative remedies for the correctional population, on October 2, 2007. (Exhibit No. 1.) He complained on October 17, 2007 to the person in charge of maintenance. (Exhibit No. 2.) He also made an administrative complaint on October 22, 2007 in relation to his medical symptoms and the number of times he had requested medical attention. (Exhibit No. 3.) Superintendent Ortiz–Roque issued an announcement at the prison that efforts were being made to correct the problems but that it was the prisoners' fault, noting that shirts, pants, socks, plastic bags and snack bags were found in the process of cleaning the “man holes”. (Exhibit No. 4.)

However, when the prisoners arrived there, everything was damaged already. Plaintiff then answered the announcement to that effect. (Exhibit No. 5.) He received a response to the administrative remedy requested from José Ortiz–Roque, three months later but before that, as a result of a routine change, the prisoners were suddenly transferred without notice since the prison was reclassified for prisoners in protective custody. (Exhibit No. 6.) When he received the notification related to his complaints, he had already been transferred to another facility. (Exhibit No. 7.) He asked for reconsideration of prior determinations asking that his claims be reconsidered since plaintiff felt that the answer given to him was not responsive. (Exhibit No. 8.) Plaintiff felt that the efforts of the administration were not real and that the cell where he was relocated was also not habitable. There was a response to the request for reconsideration and the administration dismissed the request for reconsideration (Exhibit No. 9.) Plaintiff also sent a letter to the director of the Civil Rights Commission on October 3, 2007 asking the Commission to intervene and protect his rights. (Exhibit No. 10.) Nobody ever responded to his requests during the time he was in cell 205. Plaintiff's cell mate also made claims but those claims were also ignored.

Before he arrived at the cell 205, his health was fine but once there, he began to have upset stomachs, mosquito bites and fungus on the feet. He requested “sick call” on October 2, 2007. (Exhibit No. 11.) He was not attended due to the high volume of patients. He asked for another “sick call” on October 3, 2007. (Exhibit No. 12.) He asked for yet another “sick call” on October 5, 2007 (Exhibit No. 13.) He continuously suffered from nasal congestion due to the humidity in the cell. He asked for yet another “sick call” on October 11, 2007 complaining of vomiting and stomach ache. He would vomit in the sink, the same place he urinated and brushed his teeth in. (Exhibit No. 14.) He could not be attended due to a shut down. The Corrections Administration gave the individual prisoners no cleaning products for the cell. He used his personal Safeguard soap and a sock to perform cleaning. A sick call request dated October 15, 2007 reflected numerous symptoms. (Exhibit No. 15.) He was seen by a doctor who prescribed Desenex powder, Percogesic and Sudafed.

On October 17, 2007, plaintiff requested a sick call complaining of stomach ache and pain in his left side, and also requested psychological help. (Exhibit No. 16.) Plaintiff still suffers from stomach aches and pain in the left side. On November 7, 2007, seven days after leaving cell 205, plaintiff continued to complain of the stomach ache and pain on his left side, skin rash, and mosquito bites. (Exhibit No. 17.) The only thing eventually cured was the foot fungus but nothing else was adequately treated. Plaintiff sought another “sick call” on November 9, 2007. (Exhibit No. 18.) No evaluation could be done because there was no custodial officer available to move him. He was suffering from the same condition two weeks later. (Exhibit No. 19.)

Plaintiff sent a letter on Christmas Day, 2007 to the director of the Correctional Health Service Corp. complaining of the negligent service he had received and of the condition he was in. (Exhibit No. 20.) A doctor once went to the prison section to see how the water from the showers went into his cell. She and the people that were with her wore face masks when they visited the section. By then, the prisoners were placing their bags of feces in a garbage can in a common area because of threats that administrative complaints would be filed if they continued to throw feces out the window.

When plaintiff first was imprisoned in Aguadilla, his health was fine. He was medically evaluated, as he was in Ponce. In Guayama, with time, he was evaluated but the services there were worse. In the Mayagüez institution, he was evaluated and he was fine except that he tested positive for Hepatitis C, a condition he had never suffered from before. That was at the beginning of 2009. He has never taken drugs intravenously and had no sexual relations in prison. A doctor told him that he could have received hepatitis C from his prison conditions or from the barber's equipment due to a severe dandruff that he had.

Plaintiff testified that an inmate, ...