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Cummings v. SGT. Ford

United States District Court, W.D. Louisiana, Alexandria Division

March 22, 2018

CHARLES ALVIN CUMMINGS JR. Plaintiff
v.
SGT. FORD, ET AL., Defendants

          DEE D. DRELL JUDGE.

          MEMORANDUM ORDER

          Joseph H.L. Perez-Montes United States Magistrate Judge.

         Before the Court is a civil rights complaint (42 U.S.C. § 1983) filed by pro se Plaintiff Charles Alvin Cummings Jr. (“Cummings”) (#397892). Cummings was granted leave to proceed in forma pauperis. (Doc. 8). Cummings is an inmate in the custody of the Louisiana Department of Corrections, incarcerated at the Raymond Laborde Correctional Center in Cottonport, Louisiana. Cummings alleges he was subjected to excessive force and is in imminent danger of serious physical injury.

         I. Background

         Cummings states that, on January 13, 2018, he threw a milk carton of feces on another inmate as the inmate passed Cummings's cell on his way to the shower. (Doc. 1, p. 5). When the inmate was walking back from the shower, he threw an unknown liquid substance on Cummings. (Doc. 1, p. 5).

         Cummings states that, the following day, he “again possessed a milk carton filled with human feces to throw on another offender who was in the shower and who had threatened to throw something” on Cummings. (Doc. 1, p. 6). Lt. Hicks noticed that the other offender was holding something, and Lt. Hicks ordered the offender to drop what he was holding. The offender complied. (Doc. 1, p. 6). Lt. Hicks then noticed Cummings was holding another carton of feces. He ordered Cummings “to pour the feces out in the toilet.” (Doc. 1, p. 6). Cummings “refused to pour out the feces.” (Doc. 1, p. 6). Lt. Hicks called Cpt. Anderson to the scene, and Cpt. Anderson also ordered Cummings to put the feces in the toilet. (Doc. 1, p. 7). Again, Cummings refused to comply. (Doc. 1, p. 7).

         Lt. Hicks and Cpt. Anderson left Cummings temporarily, but returned with pepper spray. Cummings then threw the feces at Lt. Hicks and Cpt. Anderson. (Doc. 1, p. 7). Cpt. Anderson sprayed Cummings with the pepper spray. (Doc. 1, p. 7). The officers left the cell. Cpt. Anderson returned with Sgt. David and placed Cummings in restraints. (Doc. 1, p. 7). Cummings was removed from the cell and escorted to a closet. Cummings alleges that Lt. Hicks, Sgt. David, Sgt. Ford, Sgt. Ewing, and Cpt. Anderson all punched and kicked Cummings in the closet for approximately five minutes. (Doc. 1, p. 8).

         Cummings was examined by a nurse. Cummings complained of rib pain, back pain, a “busted lip, ” and a “busted nose.” (Doc. 1, p. 8). Following the examination, Cummings was returned to his cell. (Doc. 1, p. 8). Cummings complains that he did not receive an x-ray. (Doc. 1, p. 8).

         Cummings claims that he was again beaten in the closet two weeks later by Lt. Vanetta and Major Dupree. (Doc. 1, p. 8). Cummings provides no factual allegations surrounding this incident.

         II. Law and Analysis

         Cummings has filed numerous civil actions and appeals in the federal courts, at least three of which were dismissed as frivolous, malicious, or for failing to state a claim for which relief can be granted.[1]

         A prisoner shall not be granted pauper status under § 1915(g) if “the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

         In his first complaint, filed on February 7, 2018, Cummings claims that he is in imminent danger because, since throwing feces on the officers, Cummings has been “harassed” by correctional officers during every shift. (Doc. 1, p. 8). Cummings also claims to be in imminent danger because he was allegedly beaten a second time. Finally, Cummings claims that he is in imminent danger because he has not received an x-ray. (Doc. 1, p. 8).

         Cummings filed an amended complaint on February 27, 2018, in which he provided Defendants' full names. (Doc. 9). In the amended complaint, Cummings does not allege suffering any further ...


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