United States District Court, W.D. Louisiana, Lake Charles Division
UNASSIGNED, DISTRICT JUDGE
KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE
the court is a civil rights complaint filed in forma
pauperis by pro se plaintiff Jaime Hernandez
(“Hernandez”). Hernandez is an inmate in the
custody of Louisiana's Department of Public Safety and
Corrections and is incarcerated at Dixon Correctional
Institute in Jackson, Louisiana. However, he complains about
events that occurred when he was incarcerated Allen
Correctional Center (“ALC”) in Kinder, Louisiana.
Hernandez names the following ALC personnel as defendants
herein: Lieutenant Ash, Captain Clark, Warden Keith Cooley,
Medical Director Justin DeVille, and Allen Correctional
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.
claims that on January 11, 2016, a sex offender was scheduled
to be placed in his cell. Doc. 1, p. 3. Hernandez alleges
that this put him “in a very undesirable
position” as he is a victim of sexual assault.
Id. He states that the guard on duty at the time
would not listen to his arguments, and that the guard and
Lieutenant Ash questioned his reasoning to either move him to
another cell or “contact P.R.E.A.” Id.
Hernandez contends that Lieutenant Ash called him to his cell
bars to be restrained but that Ash instead opened the cell
door prior to restraining him. Id. Hernandez claims
that he stepped out of his cell and faced the wall in order
to be restrained but that Lieutenant Ash told him to
“go back into the cell verbally refused to be housed in
a cell with a sex offender.” Id. Hernandez
states he explained to Lieutenant Ash that he had
“H.I.V., HEP-C, and Asthema [sic]” but
was still sprayed with two to four ounces of a chemical
contends that Lieutenant Ash reported that Hernandez was in
direct violation of Rule No. 3-Defiance as well as Rule No.
30c-General Prohibited Behavior. Id. Hernandez
states that he was then taken to the infirmary for treatment
of an eye injury “attained from the use of physical
force” by Lieutenant Ash. Id.
relief, Hernandez seeks “monetary damages” and
“a day in court to express the pain and danger of my
life these people almost cost me.” Id. at 4.
has been granted leave to proceed in forma pauperis
under 28 U.S.C. § 1915. This Act directs a district
court to dismiss an action if the court determines that it is
frivolous or malicious or fails to state a claim on which
relief may be granted. Bradley v. Puckett, 157 F.3d
1022, 1025 (5th Cir. 1998) (citing 28 U.S.C. §
1915(e)(2)(B)(i) and (ii)).
complaint is frivolous if it lacks an arguable basis in law
or fact. Gonzalez v. Wyatt, 157 F.3d 1016, 1019 (5th
Cir. 1998). A complaint fails to state a claim upon which
relief may be granted if it is clear the plaintiff cannot
prove any set of facts in support of his claim that would
entitle him to relief. Doe v. Dallas Indep. Sch.
Dist., 153 F.3d 211, 215 (5th Cir. 1998). When
determining whether a complaint is frivolous or fails to
states a claim upon which relief may be granted, the court
must accept plaintiff's allegations as true. Horton
v. Cockrell, 70 F.3d 397, 400 (5th Cir. 1995)
(frivolity); Bradley, 157 F.3d at 1025 (failure to
state a claim).