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Thibeaux v. Psychiatrist

United States District Court, M.D. Louisiana

March 29, 2018

RAYFIELD JOSEPH THIBEAUX
v.
PSYCHIATRIST, ET AL.

          NOTICE

          ERIN WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U.S. District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth 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 accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         Signed in Baton Rouge, Louisiana.

         MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

         On March 20, 2018, plaintiff Rayfield Joseph Thibeaux, a pro se litigant, filed a Civil Complaint (the “Complaint”)[1] to initiate these proceedings. Plaintiff alleges that while incarcerated at Dixon Correctional Institute in 1981, Warden Burl Cain, Warden Van Buren, East Louisiana Mental Health Systems psychologist Tom Desport, and an unidentified psychiatrist at East Louisiana Mental Health Systems (collectively, “Defendants”) secretly implanted a coiled wire device in his rectum.[2] Plaintiff alleges that Defendants are using the device for the purpose of remotely monitoring his activities.[3] Plaintiff seeks “a Court ordered release from the monitoring system, ” as well as actual and punitive damages.[4] Plaintiff claims that the wrongs alleged in the Complaint “are continuing to occur at this present time.”[5] Plaintiff alleges that the Court has subject matter jurisdiction under 28 U.S.C. § 1331, federal question.[6]

         On March 20, 2018, Plaintiff also filed an Application to Proceed In District Court Without Prepaying Fees or Costs (Short Form), [7] a Motion to Appoint Counsel[8] and a Motion to Have Summons and Complaint Served by U.S. Marshal.[9] On March 21, 2018, the undersigned issued an Order[10] granting the Short Form Application and setting a hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), to determine whether all or any part of this case should be dismissed as frivolous because (1) the complaint has no realistic chance of ultimate success; or (2) it has no arguable merit in terms of the arguable substance of the claims presented, both in law and in fact; or (3) beyond doubt, the plaintiff can prove no set of facts which would entitle him to relief. See, Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986).

         Following further review, it was determined that the Spears hearing was not necessary. It is RECOMMENDED that this matter be DISMISSED as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). It is further recommended that the pending Motion to Appoint Counsel and Motion to Have Summons and Complaint Served by U.S. Marshal be DENIED as moot.

         I. Background and Analysis

         On March 12, 2012, this Court dismissed a previous action filed by Plaintiff in which he asserted identical claims against Warden Burl Cain, Dixon Correctional Institute (“DCI”), East Louisiana Mental Health System psychologist Tom Desport and an unidentified psychiatrist at East Louisiana Mental Health System.[11] In dismissing the previous matter, this Court concluded that “the same or substantially similar claims” had been asserted in four previous complaints filed by the Plaintiff in federal district courts in Florida, Texas and Colorado and that the claims in the matter filed in this Court were, therefore, barred by issue preclusion.[12] Noting the Plaintiff's history of filing frivolous and malicious litigation, this Court imposed a monetary sanction of $70.00 and stated that Plaintiff would not be allowed to proceed in forma pauperis in future lawsuits unless and until that sanction was paid.[13] The Court also ordered that Plaintiff be barred from filing future complaints except upon written approval of a judicial officer of this Court.[14]

         A review of the instant Complaint demonstrates that Plaintiff seeks to assert claims that are the same or substantially similar to the claims dismissed in several previous actions. Although Plaintiff has paid the $70.00 sanction previously imposed by this Court[15] and could therefore proceed in forma pauperis in this matter, no information has been provided to the Court regarding whether Plaintiff has obtained prior approval from a judicial officer of this Court to file the instant Complaint, as required by this Court's March 12, 2012 Order.[16] Without such approval, Plaintiff is barred from filing the instant Complaint.

         Further, pursuant to the provisions of 28 U.S.C. § 1915(e), this Court is authorized to dismiss an action brought in forma pauperis if satisfied that the action is frivolous, malicious, or fails to state a claim upon which relief may be granted.[17] An in forma pauperis suit is properly dismissed as frivolous if the claim lacks an arguable basis either in fact or in law.[18] Similarly, a court may dismiss sua sponte an in forma pauperis complaint which, while not technically frivolous, fails to state a claim upon which relief can be granted under either 28 U.S.C. § 1915(e)(2)(B) or Fed.R.Civ.P. 12(b)(6).[19] In making a determination as to whether an in forma pauperis complaint is frivolous or fails to state a claim, a court must construe the allegations of the pro se litigants liberally. Such litigants are held to less stringent standards than formal pleadings drafted by lawyers.[20]

         Here, Plaintiff has asserted a claim that is the same or substantially similar to the claims raised in the other five complaints identified herein. The causes of action arise from the same series of events and allege essentially the same facts in each case, namely the alleged implantation of a monitoring device by the Defendants. A complaint filed in forma pauperis that seeks “to relitigate claims which allege substantially the same facts arising from a common series of events which have already been unsuccessfully litigated” may be dismissed as frivolous ...


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