Tilmon v. Chairman

1

TERRY DALE TILMON #81500 v. CHAIRMAN ET AL.

No. 3:21-CV-04037 SEC P

United States District Court, W.D. Louisiana, Monroe Division

July 17, 2023

TERRY A. DOUGHTY JUDGE.

REPORT & RECOMMENDATION

KAYLA DYE MCCLUSKY UNITED STATES MAGISTRATE JUDGE.

Pending before the undersigned Magistrate Judge, on reference from the District Court, is a motion for summary judgment [doc #81] filed by Defendants Union Parish Police Jury (“UPPJ”); Union Parish Detention Center Commission (“UPDCC”); Donnie Adams (“Warden Adams”); and Dusty Gates, Chairman of the Union Parish Detention Center Commission (“Chairman Gates”) (collectively, “Defendants”). Also pending before the undersigned is a motion for copies [doc. #94], filed by Plaintiff Terry Dale Tilmon.

For reasons assigned below, IT IS RECOMMENDED that Defendants' motion for summary judgment [doc. #81], be GRANTED IN PART and DENIED IN PART. Furthermore, IT IS ORDERED that Plaintiff's motion for copies is DENIED.^[1]

Background

Plaintiff Terry Dale Tilmon (“Plaintiff'), a prisoner at Madison Correctional Center (“MCC”),^[2] proceeding pro se and in forma pauperis, filed this proceeding on November 22, 2021, under 42 U.S.C. § 1983. Plaintiff claims that he was “subjected to extreme levels of environmental tobacco and synthetic marijuana smoke.” [doc. # 1, p. 5]. He alleges:

9. Although the facility has in place non-smoking policies such policies are not enforced due to inadequate staffing to enforce said policy.

10. Moreover, tobacco products are sold in the facility's commissary. (eCigarettes).

11. [T]he facility does not offer non-smoking housing units for non-smokers who desire to avoid breathing second-hand smoke.

12. Smoke in housing dormitories [is] so prevailing that such smoke appears like fog on occasions and even has stained the walls of his living area.

13. It is not uncommon that employees complain about the odor and density of tobacco and synthetic marijuana.

14. Huge amounts of tobacco and synthetic marijuana are smuggled into the facility daily due to inadequate staffing.

15. [T]he UPDCC is aware of the dangers of second-hand smoke as [Plaintiff] regularly experiences headaches, coughing sneezing, rises in blood pressure ([Plaintiff] suffers from hypertension) loss of appetite, [and] sleeplessness.

Id. at 5-6. Plaintiff also experienced “nose bleeds.” [doc. # 12, p. 1].

Plaintiff states that “the conditions began on June 24 2019,” and ended October 22, 2021, when he transferred to RPDC. Id. at 2, 5. He faults the UPDCC Chairman for failing to enforce non-smoking policies and failing to prevent the introduction of tobacco and synthetic 4 marijuana. Id. at 2. He also faults the UPPJ, Warden Adams, and the UPDCC. [doc. #s 1, p. 14; 12, pp. 3, 5, 6].

Plaintiff claims that he was unable to practice his religion because of the environmental marijuana smoke. [doc. # 1, p. 6]. The smoke caused him to experience a “euphoric state of mind[,]” and “he is not to perform prayer in such a state of mind” under his Islamic faith. The “presence of synthetic marijuana smoke in dormitory housing substantially burdens his ability to practice his religious beliefs” because he has “had to abandon numerous prayers ....” Id. He must pray five times each day, but he was unable to do so at least three times each day due to the synthetic marijuana smoke. [doc. # 12, p. 2]. He writes: “There is no alternative to prayer.” Id.

Plaintiff claims that the UPDC was infested with cockroaches, bed bugs, and gnats. [doc. # 1, p. 8]. The “presence of vermin [did] not abate” throughout his “entire stay at UPDC[.]” Id. He alleges that “the presence of vermin without effective pest control services has the potential to cause disease ....” Id.

Plaintiff claims that all housing areas were “infested with black mold and mildew ....” [doc. # 1, p. 9]. Ventilation filters were clogged with inches of dust, impeding air flow and the ability to vent synthetic marijuana smoke. Id. at 9-10. Lighting fixtures were “soiled with thick dust ....” Id. at 10.

On November 22, 2020, in “‘M' dormitory[,]” Plaintiff slipped and fell on a “puddle of water that collected on the floor beneath and around the water fountain.” [doc. # 1, p. 11]. He claims that the water fountain was faulty because its stream extended beyond the basin. Id. He experienced numbness in his fingers, limited movement in his left arm, and pain in his left shoulder, hip, neck, and “cervical area[.]” Id. He alleges that “there were no wet floor signs warning of the floor's condition.” Id. Plaintiff and “others have reported the condition of the water fountain to maintenance, correction officers, and the warden to no avail.” Id.

Plaintiff claims that Warden Adams fired him from his position at the UPDC law library and transferred him to RPDC because Plaintiff showed him a grievance and a copy of his initial pleading in this proceeding. [doc. # 12, p. 5].

Plaintiff seeks nominal, compensatory, and punitive damages.

On April 14, 2022, upon the undersigned's initial review, the Court dismissed ten of Plaintiff's claims. [doc. #16]. Eight claims remained, including two against Secretary LeBlanc: a Section 1983 claim alleging that Plaintiff was exposed to unreasonably high levels of e-cigarette and marijuana smoke and a condition-of-confinement claim concerning the presence of insects; rust; peeling paint; mold; mildew; dust; lack of ventilation; and wet floors at UPDC. [doc. #13, pp. 1-2]. All other claims against Secretary LeBlanc were dismissed. Id.

On October 28, 2022, Secretary LeBlanc filed a motion to dismiss. [doc. #45]. On December 27, 2022, the undersigned recommended that Secretary LeBlanc's motion be granted. [doc. #61]. On January 17, 2023, Judge Doughty adopted the undersigned's recommendation and dismissed Plaintiff's claims against Secretary LeBlanc. [doc. #69].

On February 16, 2023, Defendants filed the instant motion for summary judgment. [doc. #81]. Therein, Defendants argue that there are no genuine issues as to any material fact, and they are entitled to judgment as a matter of law. [doc. #81-1, p. 7]. Accordingly, Defendants seek dismissal of all of Plaintiff's claims against them. Id.

On April 17, 2023, Plaintiff filed his opposition to Defendants' motion for summary judgment. [doc. #86]. Therein, he argues that there are genuine issues of material facts that create factual disputes for trial. Id. at 1. Accordingly, he asks that Defendants' motion be denied. Id.

On April 24, 2023, Defendants filed their reply brief in support of their motion for summary judgment. [doc. #89].

On May 5, 2023, Plaintiff filed a motion for leave to file documents. [doc. #90]. On May 10, 2023, the undersigned granted Plaintiff's motion, allowing him to file his exhibits and declaration as supplements to his opposition to Defendants' motion for summary judgment. [doc. #91]. On May 17, 2023, consistent with the undersigned's order, Defendants filed a supplemental reply in support of their motion for summary judgment. [doc. #93].

On June 1, 2023, Plaintiff filed a motion styled as a “motion for copies” [doc. #94], wherein he seeks to re-open discovery. On June 6, 2023, Defendants filed their opposition. [doc. #95].

Accordingly, briefing is complete. This matter is ripe.

Discussion

I. Summary Judgment Standard

Summary judgment is appropriate when the evidence before the Court shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if proof of its existence or nonexistence would affect the outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” if the evidence is such that a reasonable fact finder could render a verdict for the nonmoving party. Id.

A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine dispute of material fact by pointing out that the record contains no support for the non-moving party's claim. Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 263 (5th Cir. 2002) (quoting Fed.R.Civ.P. 56(c)). Thereafter, if the non-movant is unable to identify anything in the record to support its claim, summary judgment is appropriate. Id. “The court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3).^[3]

In evaluating a motion for summary judgment, courts “may not make credibility determinations or weigh the evidence” and “must resolve all ambiguities and draw all permissible inferences in favor of the non-moving party.” Total E & P USA Inc. v. Kerr-McGee Oil & Gas Corp., 719 F.3d 424, 434 (5th Cir. 2013). While courts will “resolve factual controversies in favor of the nonmoving party,” an actual controversy exists only “when both parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). To rebut a properly supported motion for summary judgment, the opposing party must show, with “significant probative evidence,” that a genuine dispute of material fact exists. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000). ‘“If the evidence is merely colorable, or is not significantly probative,' summary judgment is appropriate.” Cutting Underwater Tech. USA, Inc. v. Eni U.S. Operating Co., 671 F.3d 512, 517 (5th Cir. 2012) (quoting Anderson, 477 U.S. at 248).

II. Defendants' Motion for Summary Judgment...