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Hernandez v. Ash

United States District Court, W.D. Louisiana, Lake Charles Division

October 19, 2017

JAIME HERNANDEZ DOC #609464
v.
JASON ASH, ET AL

         SECTION P

          UNASSIGNED, DISTRICT JUDGE

          MEMORANDUM ORDER

          KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE

         Before 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 Center.

         This 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.

         I.

         Background

         Hernandez 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.”[1] 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 agent. Id.

         Hernandez 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.

         As 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.

         II.

         Applicable Law

         A. Frivolity Review

         Hernandez 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)).

         A 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).

         B. 42 ...


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