United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the United States District
accordance with 28 U.S.C. § 636(b)(1), you have fourteen
(14) days after being served with the attached Report to file
written objections to the proposed findings of fact,
conclusions of law and recommendations therein. Failure to
file written objections to the proposed findings,
conclusions, and recommendations within 14 days after being
served will bar you, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual
findings and legal conclusions of the Magistrate Judge which
have been accepted by the District Court.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
JUDGE'S REPORT AND RECOMMENDATION
pro se plaintiff, an inmate confined at the
Louisiana State Penitentiary (“LSP”), Angola,
Louisiana, filed this proceeding pursuant to 42 U.S.C. §
1983 against Major Terry Morgan and Sgt. Daniel Stewart
complaining that his constitutional rights were violated due
to deliberate indifference to his safety and the issuance of
a false disciplinary report. He prays for monetary damages.
to 28 U.S.C. §§ 1915(e) and 1915A, this Court is
authorized to dismiss an action or claim brought by a
prisoner who is proceeding in forma pauperis or is
asserting a claim against a governmental entity or an officer
or employee of a governmental entity if satisfied that the
action or claim is frivolous, malicious or fails to state a
claim upon which relief may be granted. An action or claim is
properly dismissed as frivolous if the claim lacks an
arguable basis either in fact or in law. Denton v.
Hernandez, 504 U.S. 25, 31 (1992), citing Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Hicks v.
Garner, 69 F.3d 22, 24-25 (5th Cir. 1995).
is factually frivolous if the alleged facts are
“clearly baseless, a category encompassing allegations
that are ‘fanciful, ' ‘fantastic, ' and
‘delusional.'” Id. at 32-33. A claim
has no arguable basis in law if it is based upon an
indisputably meritless legal theory, “such as if the
complaint alleges the violation of a legal interest which
clearly does not exist.” Davis v. Scott, 157
F.3d 1003, 1005 (5th Cir. 1998). The law accords judges not
only the authority to dismiss a claim which is based on an
indisputably meritless legal theory, but also the unusual
power to pierce the veil of the factual allegations.
Denton v. Hernandez, supra, 504 U.S. at 32.
Pleaded facts which are merely improbable or strange,
however, are not frivolous for purposes of § 1915.
Id. at 33; Ancar v. Sara Plasma, Inc., 964
F.2d 465, 468 (5th Cir. 1992). A § 1915 dismissal may be
made any time, before or after service or process and before
or after an answer is filed, if the court determines that the
action “is frivolous or malicious; fails to state a
claim on which relief may be granted; or seeks monetary
relief against a defendant who is immune from such
relief.” See 28 U.S.C. § 1915(e)(2) and
Green v. McKaskle, 788 F.2d 1116, 1999 (5th Cir.
plaintiff alleges the following in his Complaint: On August
8, 2016, Major Terry Morgan stated that the plaintiff was a
snitch and a homosexual. Major Morgan then issued a false
disciplinary report for a Rule 21(C) violation, which was
later dismissed for lack of evidence. Sgt. Daniel Stewart
stated to Major Morgan that he was right because the
plaintiff was a snitch and a homosexual.
plaintiff's allegations fail to state a claim cognizable
in this Court. First, as to any claims the plaintiff is
asserting against the defendants in their official
capacities, section 1983 does not provide a federal forum for
a litigant who seeks the recovery of monetary damages against
state officials acting in their official capacities,
specifically because these officials are not seen to be
“persons” within the meaning of § 1983.
Will v. Michigan Department of State Police, 491
U.S. 58, 64 (1989). Additionally, in Hafer v. Melo,
502 U.S. 21 (1991), the United States Supreme Court addressed
the distinction between official capacity and individual
capacity lawsuits and made clear that a suit against a state
official in his official capacity for monetary damages is
treated as a suit against the state and is therefore barred
by the Eleventh Amendment. Id. at 25. Accordingly,
the plaintiff's claim for monetary damages asserted
against the defendants in their official capacities is
subject to dismissal. In contrast, the plaintiff's claim
for monetary damages asserted against the defendants in their
individual capacities remains viable because a claim against
a state official in his individual capacity, seeking to
impose liability for actions taken by the official under
color of state law, is not treated as a suit against the
state. Of course, the plaintiff must prove a deprivation of a
constitutional right to obtain any relief.
to the plaintiff's claims asserted against the defendants
in their individual capacities, the plaintiff is not entitled
to the recovery of compensatory damages in this case because
he has not alleged a physical injury sufficient to support
such recovery. Pursuant to 42 U.S.C. § 1997e(e), a
prisoner plaintiff is barred from the receipt of compensatory
damages for mental or emotional injury in the absence of some
showing of physical injury. Accordingly, this aspect of the
plaintiff's claim should be rejected. Although the
plaintiff might still be entitled to recover nominal or
punitive damages, see Hutchins v. McDaniels, 512
F.3d 193, 198 (5th Cir. 2007), he would need to establish
some constitutional violation by the defendants in order to
merit such recovery.
regards to the issuance of the disciplinary report by Major
Morgan, the issuance of a false disciplinary report, without
more, fails to state a claim of federal constitutional
dimension cognizable under 42 U.S.C. § 1983.
Specifically, the law is clear that the mere issuance of one
or more false disciplinary reports and the imposition of
resulting punishment does not alone amount to a
constitutional violation. See Grant v. Thomas,
37 F.3d 632 (5th Cir. 1994), citing Collins v. King,
743 F.2d 248, 253-54 (5th Cir. 1984) (“[T]here is
no due process violation if a prisoner, who is falsely
accused of charges, is given an adequate state procedural
remedy to challenge the accusations”). Further, the
failure of prison officials to follow prison rules or
regulations does not amount to a violation of the
plaintiff's constitutional rights. Jackson v.
Cain, 864 F.3d 1235, 1252 (5th Cir. 1989).
instant matter, the plaintiff alleges that the rule violation
was dismissed for lack of evidence; therefore, the plaintiff
was not sentenced to any form of punishment. As such, the
plaintiff's allegations fail to state a claim upon which
relief can be granted.
to the plaintiff's claim for deliberate indifference to
his safety, courts have recognized that a correctional
officer may act with deliberate indifference to an
inmate's safety when the officer disseminates information
to other inmates that the inmate is an informant, and the
inmate is subsequently attacked by co-inmates. SeeWhite v. Fox, 470 F. App'x. 214, 223 (5th Cir.
2012) (concluding that if the defendant in fact
“informed another prisoner that [the plaintiff] acted
as an informant, then whether [the defendant] acted with
deliberate indifference to [the plaintiff's] safety by
creating a risk of assault is a question for the