United States District Court, E.D. Louisiana
ORDER AND REASONS
NANNETTE JOLIVETTE BROWN, District Judge.
Before the Court are Plaintiff Edward Cager's ("Plaintiff") objections to the April 1, 2014, Report and Recommendation of the United States Magistrate Judge assigned to the case. Plaintiff, a state prisoner sentenced to the custody of the Louisiana Department of Public Safety and Corrections and confined to the B.B. "Sixty" Rayburn Correction Center ("RCC") filed a complaint pursuant to 42 U.S.C. § 1983 alleging that Governor Bobby Jindal, Secretary James M. LeBlanc of the Louisiana Department of Public Safety and Corrections ("DOC"), and Warden Robert Tanner (collectively, "Defendants") are illegally imprisoning him at hard labor. The Magistrate Judge recommends that the Court dismiss with prejudice Plaintiff's complaint. Plaintiff objects to the Magistrate Judge's Report and Recommendation arguing that the Magistrate Judge erred in recommending that the complaint be dismissed with prejudice as frivolous and that the Magistrate Judge abused his discretion in denying Plaintiff's motion to appoint counsel. After reviewing the complaint, the Magistrate Judge's Report and Recommendation, Plaintiff's objections, the record, and the applicable law, for the following reasons, the Court will adopt in part the Magistrate Judge's Report and Recommendation, overrule Plaintiff's objections and dismiss this action with prejudice.
A. Factual Background 
Plaintiff filed the instant complaint on March 12, 2014. He alleges that he was convicted in 2010 of possession with intent to distribute heroin, possession with intent to distribute marijuana, distribution of heroin, illegal carrying of a weapon, contraband, convicted felon in possession of a firearm, and second degree murder. He was sentenced as an habitual offender under Louisiana Revised Statute § 15:529.1 to twenty-two years imprisonment. He argues that § 15:529.1 did not authorize imprisonment "at hard labor" until it was amended in 2010, after he was sentenced. Therefore, he contends that Defendants are subjecting him to "involuntary servitude" in violation of the Thirteenth Amendment and have deprived him of a "state-created liberty interest" to avoid imprisonment at hard labor. He additionally argues that Defendants' actions in retroactively applying the 2010 amendments to § 15:529.1 violated the federal Ex Post Facto Clause.
On March 12, 2014, Plaintiff filed a "Motion for the Appointment of Counsel." The Magistrate Judge denied the motion on April 1, 2014, finding that appointment of counsel was not warranted. On March 12, 2014, Plaintiff also filed a "Motion for Certification of the Class, " arguing that the Court should grant class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure.
B. Report and Recommendation Findings
On April 1, 2014, the Magistrate Judge recommended that Plaintiff's "Motion for Certification of the Class" be denied. The Magistrate Judge found that the motion should be denied because pro se litigants should not allowed to serve as class representatives.
The Magistrate Judge also recommended that Plaintiff's claims be dismissed as frivolous. He found Plaintiff's Thirteenth Amendment claim was patently frivolous because requiring a prisoner to work, with or without pay, does not violate the Thirteenth Amendment regardless of whether or not the prisoner was sentenced to hard labor. He also found Plaintiff's "state-created liberty interest" claim without merit, noting that "[r]equiring a prisoner to work while incarcerated is not an atypical and significant hardship different from the ordinary incidents of prison life."
Finally, the Magistrate Judge found Plaintiff's ex post facto claim without merit. He noted that the Louisiana First Circuit Court of Appeal rejected the argument that state law did not allow habitual offender sentences to be imposed at hard labor prior to the 2010 amendment. Alternatively, he found that even if state law did not allow him to be imprisoned at hard labor, prison authorities may impose a work requirement under federal constitutional law.
A. Plaintiff's Objections
On April 16, 2014, Plaintiff filed objections to the Magistrate Judge's Report and Recommendation. Plaintiff argues that Louisiana Revised Statute § 15:529.1 created a liberty interest to avoid imprisonment at hard labor. He asserts that the Magistrate Judge incorrectly applied the "atypical and hardship principle" set forth by the Supreme Court in Sandin v. Conner .  He argues that "atypical and hardship principle" applies only to minor liberty interests, while the issue presented in the instant case is a major liberty interest. He cites Louisiana Revised Statute § 15:824(c), which provides, "Notwithstanding any other law to the contrary, only individuals actually sentenced to death or imprisonment at hard labor shall be committed to the Department of Corrections." He argues that a person sentenced without hard labor shall not be committed to the Department of Corrections. He contends that he could not be legally committed to imprisonment at hard labor because at the time he was sentenced Louisiana Revised Statute § 15:529.1 did not authorize imprisonment at hard labor. He cites the United States Supreme Court decision In re Mills,  the Louisiana Supreme Court decision State v. King  and a Louisiana Attorney General opinion to support his assertion that his sentence was illegal. Accordingly, he asserts that Defendants do not have the authority to house Plaintiff within the custody of the Department of Corrections.
Plaintiff objects to the Magistrate Judge's finding that his ex post facto claim is without merit. He argues that the Louisiana Second Circuit Court of Appeal decision State v. Robinson, which provide that a sentence enhanced under the habitual offender statute should be computed by referring to the underlying offense, was erroneously decided because the habitual offender statute modifies the sentencing provisions for the underlying offense. He cites two Louisiana Supreme Court decisions holding that fines cannot be imposed under the habitual offender statute, arguing that this reasoning should apply to his case. He also argues that the court in Robinson reasoned that the Louisiana Revised Statute § 15:529.1 is an addition to, rather than a replacement of, the conditions required by the sentencing provisions for the underlying offense. He contends that this reasoning was erroneous because the habitual offender statute provides that the sentencing court shall impose a sentence under the habitual offender statute and vacate the previous sentence. He argues that "[b]y instructing the judge to vacate' the previous sentence, the legislature intended for the penalty provisions under the habitual ...