Gorbey v. Bowles

          REPORT AND RECOMMENDATION

          Pamela Meade Sargent, United States Magistrate Judge

         Michael S. Gorbey, (“Gorbey”), a federal inmate proceeding pro se, brings these civil rights actions against various Bureau of Prisons, (“BOP”), employees of the United States Penitentiary Lee, (“USP Lee”), pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388, 389 (1971). Because at least three of Gorbey's previous complaints have been dismissed with prejudice for failing to state a claim upon which relief may be granted, under 28 U.S.C. § 1915A(b)(1), Gorbey may not proceed with these actions unless he pays the filing fee or shows that he was under “imminent danger of serious physical injury.” 28 U.S.C.A. § 1915(g) (West 2006). These matters are before the undersigned magistrate judge by referral, pursuant to 28 U.S.C. § 636(b)(1)(B), to conduct an evidentiary hearing to determine if Gorbey was under imminent danger of serious physical injury at the time he filed each of these actions. See Martin v. Shelton, 319 F.3d 1048, 1050 (8^thCir. 2003). Evidentiary hearings were conducted on September 8 and 26, 2017, with Gorbey participating by video conference. The undersigned now submits the following report, recommending that the court find that Gorbey was not under imminent danger of serious physical injury at the time that he filed each of these actions.

         I. Facts

         By Complaint filed with the court on March 8, 2017, ^[1] in No. 7:17cv91, Gorbey alleged that the defendants were holding him in a special housing unit, (“SHU”), cell in deliberate indifference to certain unsanitary conditions in retaliation for his filing a prior lawsuit. (No. 7:17cv91, Docket Item No. 1.) The Complaint alleged that the defendants purposefully placed Gorbey in cell A-111 on February 28, 2017, with a malfunctioning toilet. The Complaint stated, in part:

Every day the toilet has been backing up & overflowing flooding the cell with feces & dirty water while Gorbey is forced to use his own towel & linen to [clean] it up & being forced to [breathe] & walk in such conditions while staff [continue] to fail to pick up trash (repeatedly for weeks)[.]

Gorbey has been sick, [losing] weight, feeling feverish & [constantly] sleepy while [a bacterial] infection on his face, back & arms returns and though he submitted sick-call slips of 3-2-17 and 3-6-17.

(Complaint at 2-3.) At another point in his Complaint, Gorbey stated that the USP Lee staff were picking up the trash from his SHU cell “every several days.” (Complaint at 2.) Gorbey also alleged that the delivery of his incoming mail was being delayed and that his outgoing mail was being destroyed. (Complaint at 4.)

         On March 20, 2017, Gorbey filed an Amended Complaint, (Docket Item No. 3), which also alleged that staff were refusing to pick up trash from Gorbey's cell. The Amended Complaint stated, in part: “Being repeatedly kept in these conditions around [feces and urine] has made Gorbey … sick & caused bacterial infections, posing a threat to his safety.” (Amended Complaint at 3.) Gorbey also alleged that he had been refused medical assessment for more than 12 days after he requested to be placed on sick call, clean laundry had been provided on only two occasions during the previous 30-day period, and the ventilation system was either blowing cold air or not blowing any air. He also alleged that none of his personal mail was getting through and that almost all of his legal mail was tampered with.

         By Complaint filed with the court on April 23, 2017, ^[2] in No. 7:17cv192, Gorbey alleged that the defendants were deliberately indifferent to the threat to his safety by being placed in a cell with a hostile, violent offender “for several months.” (No. 7:17cv192, Docket Item No. 1 at 2.) Gorbey also complained that the defendants had held him in administrative detention for an unreasonable period of time and that they were delaying or tampering with his mail.

         At the September 8 evidentiary hearing, Gorbey testified that he placed his Complaint in No. 7:17cv91 in the USP Lee institutional mail to be mailed to the court on March 8, 2017. He said that he placed an Amended Complaint in the USP Lee institutional mail to be mailed to the court on March 14, 2017. He said that when he mailed his Complaint in this case, he was being held in cell A-111 at USP Lee. He said the ventilation in this cell had been cut off for “a while.” He said that everything in his cell was “sweating, ” and “nothing” was dry. He testified that the cell was soaking wet and that even his clothes and towels were mildewing from the dampness. He said that trash had been sitting in his cell for three to five days without being picked up. He said the toilet was broken and that he told the staff that the toilet in the cell was broken before they moved him into the cell on March 4, 2017.

         Gorbey testified that the toilet in cell A-111 overflowed on the morning of March 8, 2017. He said that the toilet overflowing was an everyday occurrence. He said that the toilet was flushed from outside of the cell. He said officers would hit the flush button, and the toilet would clog and not flush; the officers would hit the flush button again, and the toilet would overflow. He said that, on the morning of March 8, 2017, officers came by cell A-111 and picked up the trash. He said they pushed the toilet flush button and watched as the toilet overflowed. Gorbey said that he did not know the names of the officers who did this, but he had obtained their names later, but could not remember them. He claimed that one of the officers came back later and threatened him to not file any complaint about his actions.

         Gorbey said that Lt. Bowles came by and saw that the toilet in his cell had overflowed, and Gorbey told him that he was going to file a lawsuit. He said that Bowles refused to give him a plunger and said, “you can include the plunger” in your lawsuit. Gorbey admitted that his cell door had a space at the bottom, which would allow the water from an overflowing toilet to run outside of the cell.

         Immediately after testifying that the officers had picked up the trash earlier in the morning of March 8, Gorbey then testified that the trash was piled “three feet high” on the cell floor that morning because, he said, it had been a couple of days since anyone had picked up the trash. Gorbey later testified that, prior to the morning of March 8, 2017, the trash had not been collected from his cell since March 4.

         Gorbey testified that he was moved from cell A-111 on March 9, 2017. He said that when he placed his Amended Complaint in the mail on March 15, 2017, he was being housed in cell B-205. Gorbey testified that the conditions in cell B-205 were the same as in cell A-111, with a malfunctioning toilet and no ventilation. In fact, Gorbey testified that the toilet in cell B-205 overflowed on the morning of March 15 before he mailed his Amended Complaint. Gorbey said, “Just because it didn't kill me doesn't mean I wasn't under an imminent danger.” Gorbey said that dirty laundry was picked up in the SHU at USP Lee an average of once a week, and it was not returned for four to five days later. Gorbey also testified that he had repeatedly requested to see Medical because he was sick and was suffering from a rash all over his body. Gorbey admitted that he filed his first sick call request on February 28, 2017, while being housed in cell A-112. He said that he also filed requests on March 2, 6, 8 and 13, 2017. Gorbey said that on March 6, 8 and 13 he requested to be seen by the medical staff for his rash and a lung infection. He said that he was not seen by Medical until March 29, 2017.

         Gorbey testified that when he saw Medical on March 29, 2017, he was suffering from a fever, had been losing weight, and he had a lung infection and a rash. Gorbey said that, by the time he saw Medical, the rash on his arms had gone away, but he still had the rash on his back. He claims that these rashes started when he was moved into cell A-112. Before this, he testified, he only had rashes on his face, which had been diagnosed as dermatitis. Gorbey said that he was given an antibiotic for his lung infection, but his rash was never treated.

         Gorbey also testified that the fact that his legal mail was being tampered with placed him in imminent danger. He said that it allowed prison officials to know what he had filed in his cases, and it had resulted in delays in his incoming and outgoing legal mail. Gorbey said the delays in the mail interfered with his ability to utilize the prison's administrative remedies.

         Gorbey said USP Lee was on lockdown on March 8 and, because of this, trash was not being picked up from the cell, and inmate laundry was not being done on a regular basis. He said that he had to wear the same clothes for days.

         Gorbey testified that he placed his Complaint in No. 7:17cv192 in the USP Lee institutional mail on April 23, 2017, while he was housed in cell B-205. He said that, later that night, he was moved away from his cellmate to cell B-204. Gorbey testified that when he filed this Complaint, he was being housed in cell B-205 with a violent Puerto Rican gang member who did not speak English, who was serving time for murder and who did not want to be housed in a cell with Gorbey. Gorbey said that his cellmate made a verbal request to Lt. Salcito to be moved out of the cell with Gorbey, but prison staff did not move him. Gorbey said that he also asked Lt. Salcito to move either him or his cellmate. Gorbey said that he made the request because his cellmate was “becoming hostile.” He said his cellmate was trying to “push his way around the cell” and was “being threatful and wanting to fight.” Gorbey testified that he submitted a request form to Lt. Avery on April 18, 2017, asking to be moved. He said that he submitted a second request form on April 19, 2017, to Avery and Salcito asking to be moved. He said that he spoke with Salcito on April 19 or 20 and told him that his cellmate did not want him in the cell. Gorbey said that, on April 20, 2017, he submitted a request form saying that his cellmate had kicked him, and he threatened to file suit if he was not moved. He said that, on April 23, 2017, he submitted another request to be moved because his cellmate was kicking and punching at him and trying to start a fight.

         Gorbey said that Lt. Pratt came to his cell on April 23, and he asked him about his request to be moved. He said that Pratt said that he gave the request to “No. 1” to deal with it. Gorbey said that he had no idea who Pratt was referring to when he said “No. 1.” Gorbey said that he believes that he and his cellmate were deliberately left in the cell together in an effort to get Gorbey in trouble for fighting. Gorbey said that, later on April 23, 2017, he was standing near the sink in the cell when his cellmate pushed him into the table. He said that he mailed his Complaint to the court later that night.

         Despite testifying earlier that he was moved to another cell away from his cellmate, Gorbey later testified that his cellmate was removed from his cell on the next day, April 24, 2017. Gorbey also said that he submitted a sick call request on April 24, but he did not see Medical. He said that he submitted another sick call request the next day, April 25, and a nurse, Karen Pease, came and looked at his side. He said that he did not want to talk to the nurse about what had happened to him at his cell door. Gorbey said that if he reported another inmate hurting him and other inmates heard him, he would be considered a “rat” and be in imminent danger. He said that it was not correct that he had not reported any symptoms to the nurse on April 25. He said that he told the nurse that he did not want to talk to her about his injury at his cell door. He claimed that the nurse did not examine him. Gorbey said that he never received any additional medical treatment while housed at USP Lee.

         On cross-examination, Gorbey testified that he had copies of his sick call requests because he had used carbon paper to make copies of the requests. Gorbey also said that he had filed numerous administrative remedies requests based on a failure of USP Lee staff to provide him with medical care. He said that none of his requests for medical treatment for his bacterial infection was ever answered.

         On redirect, Gorby testified that Defense Exhibit Nos. 3 and 4 showed that the officials at USP Lee were deliberately moving him into cells with broken toilets because it shows that he was moved more often than the usual 21-day cell rotation.

         Special Agent Jimmy Baker also testified at Gorbey's hearings. Baker said that, as the agent over the Special Investigations Unit at USP Lee, he made weekly rounds in the SHU. Baker also testified that SHU officers, case managers, unit managers and duty officers all would do rounds routinely through the SHU. He said that, if Gorbey had notified any of these persons that he was having trouble with his cell's toilet, it could have been remedied. Baker said that trash is routinely picked up in the SHU after every meal. He said that he was not aware of any complaints concerning feces in the cells, rotting food or smelly trash, and he never saw any such conditions in cell A-111 or any other cell in the SHU.

         Baker said that Defense Exhibit No. 1 was Gorbey's Special Housing Unit Record, or form 292. (No. 7:17cv91, Docket Item No. 58-1; No. 7:17cv192, Docket Item No. 45-1.) He said that these forms indicated whether Gorbey had meals, showers, recreation or other time outside of his cell each day. For instance, Baker said that the forms indicated that Gorbey refused recreation on February 27 and 28 and March 2, March 5, March 14-16, March 19-20 and March 23. He said the form also indicated which nurse made rounds in the SHU on each day. Baker said that Defense Exhibit No. 2 was the Special Housing Unit Record, or 292 form, for Gorbey's cellmate. (No. 7:17cv91, Docket Item No. 58-2; No. 7:17cv192, Docket Item No. 45-2.)

         Baker said that he had no knowledge that Gorbey had any complaints about being in a cell with a hostile cellmate in April 2017. He said that he had never received any information that would cause him to do a threat assessment of a threat posed to Gorbey by the cellmate. He said that he was aware that Gorbey was now claiming that his cellmate had kicked or shoved him, but he said that Gorbey never reported it at the time or it did not happen. Baker said he had no knowledge of Gorbey ever filing a BP-9 form with regard to a complaint about a hostile cellmate, and, if he had, it would have been forwarded to Baker's attention. He also said that Gorbey had ample opportunity to speak to anyone who did rounds in the SHU, including the Warden himself.

         Baker did agree that, if the prison was on lockdown, no one was offered recreation. He said that, in his experience, SHU inmates typically refuse recreation. He also testified that all SHU inmates are served meals in their cells.

         Lieutenant Alfredo “Freddie” Salcito also testified at Gorbey's hearing. Salcito said that he worked in the SHU at USP Lee while Gorbey was housed there. He said that he was not aware of any problem with the toilets flooding in the SHU at USP Lee. Salcito said that he was one of only a few correctional officers who spoke Spanish at USP Lee, and he would regularly communicate with Gorbey's Puerto Rican cellmate when they were housed together in the SH U.Salcito said that Gorbey's cellmate did request to be moved into a cell with another Puerto Rican inmate. Salcito said that Gorbey's cellmate was in the SHU in protective custody, not for disciplinary reasons. Salcito said Gorbey's cellmate posed no threat to Gorbey. Salcito testified that, based on his recollection, Gorbey and this Puerto Rican inmate were housed together from February 4 to April 24, 2017, in cell 211.

         Salcito said that he spoke with Gorbey while he was in the cell with this inmate, and Gorbey never gave him any indication that there were any hostilities between the two. He said that Gorbey told him that his cellmate wanted to be moved into a cell with another inmate from Puerto Rico. He said that he never knew that the cellmate had kicked or shoved Gorbey. Salcito said that he did not know why Gorbey's cellmate was moved out of the cell on April 25. He said that he did not recall ever receiving anything from Gorbey in writing complaining about this cellmate. He said that he got the impression that Gorbey wanted his cellmate moved so that he would have a cell by himself for a period of time.

         Salcito said that he did remember a time when Gorbey asked for a plunger, and he gave him a plunger. Salcito said that he flushed the toilet, and it did not overflow. He said that he had walked by and seen cell toilets overflow. He said that, when that happened, the officers would give the inmate a plunger and then move the inmate to a cell with a working toilet until maintenance could fix the toilet.

         Salcito testified that Defense Exhibit No. 3 was Gorbey's Inmate Quarters History. (No. 7:17cv91, Docket Item No. 58-3; No. 7:17cv192, Docket Item No. 45-3.) He said that Defense Exhibit No. 4 was the Inmate Quarters History of the cellmate that Gorbey claims posed a danger to him. (No. 7:17cv91, Docket Item No. 58-4; No. 7:17cv192, Docket Item No. 45-4.) Salcito said that these records showed that Gorbey and this cellmate were housed in the same cells from February 4 to April 24, 2017.

         Gorbey's Inmate Quarters History shows that he was housed in cell 111 from March 4 to March 9, 2017, in cell 205 from March 9 to March 15, 2017, in cell 204 from March 15 to April 2, 2017, in cell 205 from April 2 to April 16, 2017, in cell 212 from April 16 to April 20, 2017, and in cell 209 from April 20 to May 8, 2017. (No. 7:17cv91, Docket Item No. 58-3; No. 7:17cv192, Docket Item No. 45-3.) His cellmate's Inmate Quarters History shows that he was housed in cell 111 from March 4 to March 9, 2017, in cell 205 from March 9 to March 15, 2017, in cell 204 from March 15 to April 2, 2017, in cell 205 from April 2 to April 16, 2017, in cell 212 from April 16 to April 20, 2017, and in cell 209 ...