United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. Perez-Montes, United States Magistrate Judge.
the Court is a civil rights complaint (42 U.S.C. § 1983)
filed by pro se Plaintiff Rickey Gipson (#325027)
(“Gipson”). Gipson was granted leave to proceed
in forma pauperis. (Doc. 8). Gipson is an inmate in
the custody of the Louisiana Department of Corrections
(“DOC”), incarcerated at the Raymond Laborde
Correctional Center (“RLCC”) in Cottonport,
Louisiana. Gipson complains that his constitutional rights
are being violated by exposure to environmental tobacco smoke
(“ETS”). Gipson names as Defendants Warden Sandy
McCain, Deputy Warden Troy Poret, Assistant Warden Blaine
Villemarette, Secretary James LeBlanc, and the State of
Louisiana through Jeff Landry, each in individual and
official capacities. (Doc. 1, pp. 3, 6). Gipson seeks
monetary damages, as well as declaratory and injunctive
claims against the State of Louisiana and Secretary LeBlanc
should be dismissed based on sovereign immunity and the
failure to state a claim of supervisory liability.
complains that officials at RLCC are subjecting him to
harmful levels of ETS. Gipson alleges that Defendants allow
inmates to purchase ten cans of smokeless tobacco per week.
(Doc. 1, p. 7). The inmates dry the tobacco in the microwave,
roll it in Bible pages, and smoke it. (Doc. 1, p. 7). Gipson
alleges that Defendants McCain, Poret, and Villemarette do
not enforce the no-smoking policy. In response to
Gipson's grievance, Defendants state that the policy is
enforced. (Doc. 1-2, p. 6).
was ordered to amend his complaint to allege any physical
injury suffered. In his amended complaint, Gipson states that
his “allergy was being aggravated” from the
smoke. Gipson also complains that he suffers from
“severe headaches, burning, and teary eyes; running
nose; and sneezing that sometimes causes pain in my
chest.” (Doc. 12, p. 3).
previously filed a similar ETS suit against officers at Winn
Correctional Center (“WCC”), where he was
previously incarcerated. (1:14-cv-2278). Dismissal of that
suit has been recommended pursuant to a motion for summary
judgment filed by the defendants in that case.
Law and Analysis
Gipson's complaint is subject to screening under
§§ 1915(e)(2) and 1915A.
is a prisoner who has been allowed to proceed in forma
pauperis. Title 28 U.S.C. § 1915A provides for the
preliminary screening of lawsuits filed by prisoners seeking
redress from an officer or employee of a governmental entity.
See Martin v. Scott, 156 F.3d 578, 579-80
(5th Cir. 1998) (per curiam); Rosborough v. Mgmt. and
Training Corp., 350 F.3d 459, 461 (5th Cir. 2003).
Because Gipson 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.
Gipson's claims are barred, in part, by sovereign
against a state official or employee in his or her official
capacity is actually a suit against the state itself. See
Hafer v. Melo, 502 U.S. 21, 25 (1991). The Eleventh
Amendment bars a state's citizens from filing suit
against the state in federal court unless the state has
waived its immunity. See Cozzo v. Tangipahoa Parish
Council-President Government, 279 F.3d 273, 280 (5th
Cir. 2002). By statute, Louisiana has refused any such waiver
of its Eleventh Amendment sovereign immunity regarding suits
in federal court. See La. Rev. Stat. Ann. §
13:5106(A). Thus, Gipson's claims for monetary damages
against James LeBlanc in his official capacity as DOC
Secretary and against the State of Louisiana are barred by
Ex Parte Young, a federal court, consistent with the
Eleventh Amendment, may enjoin state officials to conform
their future conduct to the requirements of federal
law.” McCarthy ex rel. Travis v. Hawkins, 381
F.3d 407, 412 (5th Cir. 2004) (citation omitted); see
also Frew v. Hawkins, 540 U.S. 431, 437 (2004) (noting
that the Eleventh Amendment permits suits for prospective
injunctive relief against state officials acting in violation
of federal law). Gipson's claim for prospective relief
against Secretary ...