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Moses v. Parish

United States District Court, E.D. Louisiana

January 22, 2015

DWAYNE ANTHONY MOSES, SR.
v.
JEFFERSON PARISH, ET AL

SECTION: " A" (1)

Dwayne Anthony Moses, Sr., Plaintiff, Pro se, Pine Prarie, LA.

For Newell Normand, Sheriff of Jefferson Parish, Defendant: Daniel Rault Martiny, LEAD ATTORNEY, Martiny & Associates, Metairie, LA.

REPORT AND RECOMMENDATION

SALLY SHUSHAN, UNITED STATES MAGISTRATE JUDGE.

Plaintiff, Dwayne Anthony Moses, Sr., a state inmate, filed this civil action pursuant to 42 U.S.C. § 1983. He named the following defendants: Jefferson Parish; Sheriff Newell Normand; Warden Sue Ellen Monfra; Deputy Wilfred; Sergeants Foret, Lee, Banner, Berrian, and Abadie; and other unidentified individuals. On January 6, 2015, the undersigned conducted a Spears hearing in order to better understand the nature and factual bases of plaintiff's claims. See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). The United States Fifth Circuit Court of Appeals has observed that a Spears hearing is in the nature of a Fed.R.Civ.P. 12(e) motion for more definite statement, and a plaintiff's testimony at such a hearing becomes a part of the total filing by the pro se applicant. Eason v. Holt, 73 F.3d 600, 602 (5th Cir. 1996). Based on plaintiff's complaint and his testimony at the Spears hearing, the Court finds that plaintiff is making the following allegations in this lawsuit.

Officials at the Jefferson Parish Correctional Center failed to transport plaintiff to his parole revocation hearing scheduled for September 11, 2014. When he failed to appear, the hearing was rescheduled. However, before that rescheduled hearing was held, he was visited by his parole officer and, based on the parole officer's advice, plaintiff signed paperwork admitting that he had violated his parole, thereby obviating the need for the hearing.

Plaintiff also alleges that he was sprayed with mace by defendant Wilfred during the distribution of medications to inmates on October 2, 2014. Wilfred stated that she sprayed plaintiff as he " walked briskly" toward her, which she interpreted as a move to assault her. Although plaintiff alleges that was untrue, he was nevertheless charged with the criminal offense of simple assault, and that charge remains pending in state court. He claims that the defendants charged him with simple assault in order to retaliate against him for filing administrative grievances.

At the Spears hearing, plaintiff stated that he sued Warden Monfra and Sheriff Normand because they are supervisory officials. He conceded that they were not personally involved in the foregoing incidents.

I. Standards of Review

Federal law mandates that federal courts " review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a).[1] Regarding such lawsuits, federal law further requires:

On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint --

(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A(b).

Additionally, with respect to actions filed in forma pauperis, such as the instant lawsuit, federal law similarly provides:

Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that ... the action or appeal --
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary damages against a defendant who is immune ...

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