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Gipson v. McCain

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

April 9, 2018

RICKEY GIPSON #325027, Plaintiff
v.
SANDY MCCAIN, ET AL., Defendants

          DEE D. DRELL, JUDGE.

          REPORT AND RECOMMENDATION

          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 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 relief.

         Gipson's 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.

         I. Background

         Gipson 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).

         Gipson 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).

         Gipson 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. (1:14-cv-2278).

         II. Law and Analysis

         A. Gipson's complaint is subject to screening under §§ 1915(e)(2) and 1915A.

         Gipson 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.

         B. Gipson's claims are barred, in part, by sovereign immunity.

         A suit 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 sovereign immunity.

         “Under 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 ...


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