United States District Court, Western District of Louisiana, Alexandria Division
Gheorghe Dragos, Plaintiff, Pro se, Skokie, IL.
JAMES D. KIRK, UNITED STATES MAGISTRATE JUDGE. JUDGE DRELL.
REPORT AND RECOMMENDATION
JAMES D. KIRK, UNITED
STATES MAGISTRATE JUDGE.
Pro se plaintiff Gheorghe Dragos, proceeding in forma pauperis, filed the instant complaint seeking relief under the Federal Torts Claims Act, and either 42 U.S.C. § 1983 or Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Plaintiff is an inmate in the custody of the Department of Homeland Security, presently incarcerated at the Etowah County Detention Center in Gadsden, Alabama. He seeks compensatory damages related to incidents that allegedly occurred in Alexandria, Louisiana. He named as defendants Eric Holder, Field Officer Director Scott Sutterfield, and Unknown Agents of the Federal Bureau of Narcotics.
This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of the Court.
Plaintiff alleges that, on August 20, 2013, he was transported from LaSalle Detention Center to the airport in Alexandria, Louisiana, along with several other Mexican detainees. He was placed in an ICE vehicle. Plaintiff alleges that an officer ordered him to exit the van, and Plaintiff failed to comply. Plaintiff alleges that his head was placed on the floor and he was jumped on by the officer. Plaintiff was bleeding from his mouth, when another officer grabbed him and held him and the first officer punched him in the stomach and body, causing Plaintiff's eyeglasses to break. Plaintiff's false teeth were knocked from his mouth, as well. Plaintiff was screaming, so a crowd of people began to gather. The officers then left Plaintiff alone. However, ten to fifteen minutes later, when the crowd dissipated, the officers continued punching Plaintiff. [Doc. #1]
Plaintiff was returned to the LaSalle Detention Center and examined by the doctor. An appointment was scheduled for Plaintiff with a doctor outside of the facility, as well. [Doc. #1]
On January 7, 2014, Plaintiff was transferred from LaSalle to an immigration court in Oakdale, Louisiana, where he was issued a warning for failure to deport. Plaintiff was then transferred to Basile Detention Center. Plaintiff then discovered that his bag containing his legal work was missing. He believes that his property was shipped out with the inmates that were deported on August 20, 2013 from Alexandria, when Plaintiff refused to deport.
Law and Analysis
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, Plaintiff's complaint is subject to preliminary screening pursuant to 28 U.S.C. § 1915A.
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 upon which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief.
A complaint is frivolous when it " lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). A claim lacks an arguable basis in law when it is " based on an indisputably meritless legal theory." Id. at 327. A claim is factually frivolous when the facts alleged are " clearly baseless", 490 U.S. at 327, a category encompassing allegations that are " fanciful, "  " fantastic, "  and " delusiona1."
See Denton v. Hernandez, 504 U.S. 25, 32-33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). A complaint fails to state a claim upon 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 A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); accord Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
1. Lost Property
Petitioner seeks an award of damages for his property that was deported with Mexican detainees on August 20, 2013. First, to the extent that Plaintiff seeks damages under the FTCA, the only proper defendant is the United States. See Kennedy v. Texas Utilities, 179 F.3d 258, 261 n. 5 (5th Cir. 1999); McGuire v. Turnbo, 137 F.3d 321, ...