United States District Court, W.D. Louisiana, Monroe Division
G. JAMES JUDGE
REPORT AND RECOMMENDATION
L. HAYES MAGISTRATE JUDGE
se plaintiff Jerry Dregin, incarcerated at the Jackson
Parish Correctional Center Phase II and proceeding in
forma pauperis, filed the instant civil rights complaint
pursuant to 42 U.S.C. §1983 on October 12, 2017. He
names Jackson Parish Correctional Center, Andy Brown, Timothy
Ducote, Betty Pullin, Lafayette Parish District Attorney,
Michael Hoffpauir, and Dyani Jarosz, seeking his release from
custody, compensatory damages and a restraining order. 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.
of the Case
time of the filing of this suit, plaintiff was a pre-trial
detainee awaiting trial on a charge of possession of a
firearm by a felon. He argued that he was being held in
custody without an order of the court because the
15th Judicial District Court relieved him of all
bond obligations. He has since pled no contest to a charge of
attempt to possess firearm by convicted felon, in violation
of La. R.S. 14:27(95.1). [Rec. Doc. 7-1, p. 7] He claims that
he is being held illegally and seeks release from prison, and
damages for pain and suffering, false imprisonment, loss of
income and future damages.
November 14, 2017, plaintiff filed a request for a
restraining order against Jackson Parish Correctional Center
and Lasalle Management. [Rec. Doc. 7]
is a prisoner who has been permitted to proceed in forma
pauperis. As a prisoner seeking redress from an officer
or employee of a governmental entity, his complaint is
subject to preliminary screening pursuant to 28 U.S.C. §
1915A. See Martin v. Scott, 156 F.3d 578');">156 F.3d 578, 579-80
(5th Cir.1998) (per curiam). Because he is
proceeding in forma pauperis, his complaint is also
subject to screening under § 1915(e)(2). Both §
1915(e)(2) (B) and § 1915A(b) provide for sua
sponte dismissal of the complaint, or any portion
thereof, if the Court finds it is frivolous or malicious, if
it fails to state a claim upon which relief may be granted,
or if it seeks monetary relief against a defendant who is
immune from such relief.
complaint is frivolous when it “lacks an arguable basis
either in law or in fact.” Neitzke v.
Williams, 19');">490 U.S. 319, 325 (1989). A claim lacks an
arguable basis in law when it is “based on an
indisputably meritless legal theory.” Id. at
327. A complaint fails to state a claim upon which relief may
be granted when it fails to plead “enough facts to
state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007); accord Ashcroft v. Iqbal, 556 U.S. 662, 678
plaintiff filed his complaint as a civil rights complaint
pursuant to Section 1983, it appears that in addition to
money damages he seeks an immediate release from custody.
Thus, to the extent that his complaint may be construed as
challenging the legality of his confinement or as seeking his
immediate release from confinement, such claims must be
raised by petition for habeas corpus relief filed
pursuant to 28 U.S.C. §2241 or 2254. See Carson v.
Johnson, 112 F.3d 818');">112 F.3d 818, 820 (5th Cir.1997); Cook v.
Texas Dep't of Criminal Justice Transitional Planning
Dep't, 166');">37 F.3d 166, 168 (5th Cir.1994); Pugh v.
Parish of St. Tammany, 875 F.2d 436, 439 (5th Cir.1989);
Preiser v. Rodriguez, 11 U.S. 475');">411 U.S. 475, 500, 93 S.Ct.
1827, 36 L.Ed.2d 439 (1973); Serio v. Members of the La.
State Board of Pardons, 1 F.2d 1112');">821 F.2d 1112, 1117 (5th
Cir.1987). “Challenges to the validity of any
confinement or to particulars affecting its duration are the
province of habeas corpus.” Muhammad v.
Close, 540 U.S. 749, 750, 124 S.Ct. 1303');">124 S.Ct. 1303, 1304 (2004).
to the extent that plaintiff seeks his immediate release from
custody in this civil rights litigation, such claim must be
dismissed for failing to state a claim for which relief can