United States District Court, W.D. Louisiana, Monroe Division
TODD H. MERCER
ROBERT G. JAMES
REPORT AND RECOMMENDATION
L. HAYES UNITED STATES MAGISTRATE JUDGE
plaintiff Todd H. Mercer, proceeding in forma
pauperis, filed the instant civil rights complaint
pursuant to 42 U.S.C. §1983 on February 21, 2018.
Plaintiff is incarcerated at the Tensas Parish Detention
Center, Waterproof, LA. He sues fellow inmate, Thomas Mason,
alleging that Mason attacked him causing physical and mental
injury. He seeks compensatory damages and injunctive relief.
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.
For the following reasons it is recommended that the
complaint be DISMISSED WITH PREJUDICE as
of the Case
December 25, 2017, plaintiff was attacked by Thomas Mason
while watching television in his dorm. Mason came up from
behind plaintiff, placed him in a choke hold and threw him to
the floor. When he attempted to stand up, Mason bit him on
the back twice. He eventually was able to free himself, at
which time the guards were made aware of the situation and
restrained Mason. The guards “made sure he was seen by
medical staff at shift change the next morning.” [Rec.
Doc. 1, p. 5]
brings the instant suit, which “does not involve jail
officials, ” against his fellow inmate, seeking
compensatory damages as well as a restraining order. [Rec.
Doc. 6, p. 2]
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, 6 U.S. 662');">556 U.S. 662, 678
seeks relief pursuant to 42 U.S.C. §1983.
“[Section] 1983 is not itself a source of substantive
rights; it merely provides a method for vindicating federal
rights conferred elsewhere.” Olabisiomotosho v.
City of Houston, 185 F.3d 521');">185 F.3d 521, 525 n. 3 (5th Cir.1999).
“To state a claim under § 1983, a plaintiff must
allege the violation of a right secured by the Constitution
and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color
of state law.” West v. Atkins, 487 U.S.
42, 48, 108 S.Ct. 2250');">108 S.Ct. 2250, 101 L.Ed.2d 40 (1988)(emphasis
has not alleged any action that would give rise to his fellow
inmate being classified as a state actor. Since plaintiff is
not complaining of any civil rights violations committed by a
"state actor, " his complaint against Mason alleges
a state law tort claim, not a civil rights claim which could
be addressed in Federal Court. As plaintiff's civil
rights claim against inmate Mason lacks an arguable basis in
law, it should be dismissed with prejudice as frivolous. To
the extent that he ...