United States District Court, M.D. Louisiana
MAGISTRATE JUDGE'S REPORT
STEPHEN C. RIEDLINGER, Magistrate Judge.
Pro se plaintiff, an inmate confined at Louisiana State Penitentiary, Angola, Louisiana, filed this action pursuant to 42 U.S.C. § 1983 against Maj. Deujon Shane Worsham, Capt. Donald Lamana and Capt. Joe Barr. Plaintiff alleged that he was subjected to an excessive use of force and was denied adequate medical treatment in violation of his Eighth Amendment rights.
For the reasons which follow, the plaintiff's complaint should be dismissed.
I. Factual Allegations
Plaintiff alleged that on February 22, 2013, he was restrained by Sgt. Perkins and escorted to the shower cell. Plaintiff alleged that when his cell door was opened he exited his cell and immediately began spraying human waste on two inmates confined in an adjacent cell. Sgt. Perkins activated his beeper and telephoned defendants Maj. Worsham, Capt. Barr and Capt. Callahand. Plaintiff alleged that following the incident Sgt. Perkins placed him in a shower cell but did not remove his restraints.
Plaintiff alleged that approximately five to ten minutes later, Capt. Barr removed him from the shower cell and attempted to question him about the incident but the plaintiff refused to discuss it. Plaintiff alleged that Capt. Barr ordered Maj. Worsham to place the plaintiff in administrative lockdown. Plaintiff alleged that Capt. Barr made homosexual gestures towards him while escorting him to administrative lockdown. Plaintiff alleged that Sgt. Raymond Jones placed him in cell number six after searching the cell and the plaintiff for contraband.
Plaintiff alleged that after he ate his lunch, Maj. Worsham removed the plaintiff's tray from the hatch and threw it on the floor. Plaintiff alleged that Capt. Barr appeared before his cell and sprayed him with mace without provocation for 8 to 12 seconds. Plaintiff alleged that the door to his cell was closed and he was rendered unconscious for 20 to 30 minutes.
Plaintiff alleged that following the incident he was not allowed to take a shower and that medical personnel refused to wash the mace from his eyes.
Plaintiff alleged that he filed an Administrative Remedy Procedure ("ARP") which was accepted into the two-step procedure as ARP LSP-2013-1332, and he attached copies of the First and Second Steps of the ARP as an exhibit to his complaint.
II. Applicable Law and Analysis
A. Frivolous Standard
Subsection (c)(1) of 42 U.S.C. § 1997e provides the following:
(c) Dismissal.-(1) The court shall on its own motion or on the motion of a party dismiss any action brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility if the court is satisfied that the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief.
An in forma pauperis suit is properly dismissed as frivolous if the claim lacks an arguable basis either in fact or in law. Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733 (1992); Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1831-32 (1989); Hicks v. Garner, 69 F.3d 22, 24 (5th Cir. 1995). A court may dismiss a claim as factually frivolous only if the facts are clearly baseless, a category encompassing allegations that are fanciful, fantastic, and delusional. Denton, 504 U.S. at 33-34, 112 S.Ct. at 1733. Pleaded facts which are merely improbable or strange, however, are not frivolous for section 1915(d) purposes. Id.; Ancar v. SARA Plasma, Inc., 964 F.2d 465, 478 (5th Cir. 1992). Dismissal under 28 U.S.C. § 1915(d) may be made ...