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Goldston v. Weary

United States District Court, E.D. Louisiana

February 2, 2015

KEVIN GOLDSTON,
v.
LARRY WEARY, ET AL., Section

ORDER AND REASONS

NANNETTE JOLIVETTE BROWN, District Judge.

Before the Court are Plaintiff Kevin Goldston's ("Plaintiff") objections[1] to the August 20, 2014, Report and Recommendation of the United States Magistrate Judge assigned to the case.[2] 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 against Master Sergeant Larry Weary, Supervising Captain Frank Cleland, Supervising Major Tim Crawford, Warden Robert Tanner and Secretary James M. LeBlanc of the Louisiana Department of Public Safety and Corrections.[3] Plaintiff claims that Larry Weary, a Master Sergeant at Rayburn Correctional Center, violated his civil rights by forging Plaintiff's name on a diet roster.[4] The Magistrate Judge recommends that the Court dismiss Plaintiff's complaint with prejudice.[5] Plaintiff objects to the Magistrate Judge's Report and Recommendation and reasserts, among other objections, that forgery is prohibited under state and federal law.[6] After reviewing the complaint, the Magistrate Judge's Report and Recommendation, Plaintiff's objection, the record, and the applicable law, for the following reasons, the court will overrule Plaintiff's objections, adopt the Magistrate Judge's Report and Recommendation, and dismiss this action with prejudice

I. Background

A. Factual Background [7]

Plaintiff filed the instant complaint on August 12, 2014.[8] In his complaint, Plaintiff alleges that on March 17, 2014, while approaching the diet line, Defendant Weary asked for his name.[9] Plaintiff replied: "I'm Kevin Goldston and should be at the top of page. No 2."[10] After Plaintiff produced his identification card, Defendant Weary then used his black ink pen to write Plaintiff's initials next to his name and prison number on the diet roster.[11] Defendant Weary did not allow the Plaintiff to write his initials with an available pencil.[12] On or about March 21, 2014, Plaintiff initiated a request for an administrative remedy alleging official misconduct and corrupt practice from Defendant Weary.[13]

On March 31, 2014, Defendants Cleland and Crawford spoke with Plaintiff about his administrative remedy request.[14] Defendants Cleland and Crawford acknowledged that Defendant Weary admitted to writing every offenders's, including the Plaintiff's, initials on the diet roster.[15]

On April 21, 2014, Plaintiff's administrative remedy request was denied.[16] Warden Tanner found that Defendant Weary did not commit forgery, criminal intent, or malfeasance as the Plaintiff alleged.[17] Plaintiff sought administrative review, which was denied by Secretary LeBlanc, on May 23, 2014.[18] Plaintiff then filed the instant federal lawsuit against Weary, Cleland, Crawford, Tanner, and LeBlanc pursuant to 42 U.S.C. § 1983.[19]

B. Report and Recommendation Findings

On August 19, 2014, the Magistrate Judge recommended that Plaintiff's complaint be dismissed with prejudice as frivolous and/or for failure to state a claim on which relief may be granted.[20] The Magistrate Judge found Plaintiff's complaint to be frivolous because Defendant Weary's conduct did not deprive Plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States.[21] The Magistrate Judge reasoned that Plaintiff had no federally protected right to personally sign or initial the diet roster.[22] Thus, Plaintiff did not suffer compensable harm when Defendant Weary initialed for Plaintiff.[23]

The Magistrate Judge also found Plaintiff's Fourth Amendment claim frivolous because no seizure occurred.[24] Plaintiff further alleged that Defendant's Weary's action violated federal criminal statutes. The Magistrate Judge did not consider this contention, finding that criminal statutes do not provide a basis for private causes of action under 42 U.S.C. § 1983.[25] Finally, the Magistrate Judge found Plaintiff's claim that the remaining Defendants failed to discipline Defendant Weary clearly frivolous because "an inmate has no constitutional right to an adequate and effective grievance procedure or to have his complaints investigated and resolved to his satisfaction."[26]

II. Plaintiff's Objections

On August 29, 2015, Plaintiff filed objections to the Magistrate Judge's Report and Recommendation.[27] Plaintiff argues that forgery satisfies the second element under his 42 U.S.C. § 1983 claim because forgery is prohibited under state and federal law.[28] Plaintiff also asserts that a seizure occurred because Defendant Weary took possession of Plaintiff's identification card and acted as though having power of attorney.[29] Contesting the Magistrate Judge's finding that criminal statutes do not provide a basis for private action under 1983, Plaintiff further argues that under 28 U.S.C. § 1331 the Court has broad discretion to fashion remedies for civil rights violations.[30]

III. Standard of Review

A. Review of the Magistrate Judge's Report and ...


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