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Lodge v. Tigner

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

May 16, 2018

LEROY ANTOINE LODGE, Plaintiff
v.
LIBBY TIGNER, ET AL., Defendants

          DEE D. DRELL JUDGE

          REPORT AND RECOMMENDATION

          JOSEPH H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE.

         Before the Court is the civil rights complaint (42 U.S.C. § 1983) of pro se Plaintiff Leroy Antoine Lodge (“Lodge”) (#105750). Lodge is an inmate in the custody of the Louisiana Department of Corrections, incarcerated at the Winn Correctional Center in Winnfield, Louisiana. Lodge filed suit in the Middle District of Louisiana complaining that officials at Rivers Correctional Center, where he was previously incarcerated, violated his constitutional rights. The suit was recently transferred to this Court, which granted Lodge's motion for leave to proceed in forma pauperis. (Docs. 6, 14).

         Because Lodge cannot show that his constitutional rights have been violated, his complaint should be dismissed.

         I. Background

         In his original complaint filed in the Middle District of Louisiana, Lodge only complains that Defendants violated his constitutional rights by failing to respond to his grievances. In his amended complaint filed in this Court, Lodge also complains that his constitutional rights were violated when he was sprayed in the eye with lice control spray and not provided medical care until the following day; that he was denied access to the courts; and that his personal property was stolen when he was temporarily transferred. (Doc. 10, p. 5).

         II. Law and Analysis

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

         Lodge is a prisoner who has been permitted to proceed in forma pauperis. As a prisoner seeking redress from an officer or employee of a governmental entity, Lodge's complaint is subject to preliminary screening pursuant to 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998) (per curiam). Because he is proceeding in forma pauperis, Lodge's 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.

         A complaint is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Id. at 327. A complaint fails to state a claim upon which relief may be granted when it fails to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009).

         B. Lodge cannot establish that he suffered a constitutional violation.

         First, Lodge claims his constitutional rights were violated because his grievances were not answered. However, an inmate has no constitutional right to a grievance procedure, and no due process liberty interest in having a grievance resolved to his satisfaction. See Geiger v. Jowers, 404 F.3d 371, 374-75 (5th Cir. 2005).

         Next, Lodge complains his rights were violated when he was sprayed in his left eye with lice control spray by John Hood. (Doc. 10, p. 5). First, Lodge does not present any non-conlusory allegations that Defendant Hood acted intentionally or maliciously in spraying lice control spray into Lodge's left eye. Moreover, Lodge fails to allege that he suffered more than a de minimis injury from the lice spray. Short-term pain alone is insufficient to constitute more than de minimis injury for purposes of an excessive force claim. See Williams v. United States, 2009 WL 3459873, *12 (S.D. Tex. 2009) (accepting plaintiff's allegations as true that he suffered extreme pain from being kicked and sprayed in the eyes with pepper spray; his injury was de minimis ); Baeza v. Becker, 14-CV-659, 2015 WL 6127190, at *1 (W.D. Tex. Oct. 15, 2015) (citing Williams); Martinez v. Nueces Cty., Tex., 2:13-CV-178, 2015 WL 65200, at *11 (S.D. Tex. Jan. 5, 2015), aff'd sub nom. Martinez v. Day, 639 Fed.Appx. 278 (5th Cir. 2016).

         Lodge complains that he did not receive medical care until the day after he was sprayed in the eye with lice control spray. Lodge alleges that the infirmary was already closed for the day when he was sprayed. (Doc. 10). Lodge cannot show that receiving medical care the day after the lice control spray got in his eye was constitutionally inadequate. See Hudson v. Gusman, 2014 WL 906155, at *6 (E.D. La. March 7, 2014) (finding that treatment given forty-eight hours after being sprayed with pepper spray was constitutionally adequate); Pea v. Cain, 2014 WL 268696, at *7 (M.D. La. Jan. 23, 2014) (noting that even if prison officials denied the inmate plaintiff a shower after being sprayed with irritant, the plaintiff's claim did not rise to one of constitutional dimension). Moreover, there are no allegations that the delay resulted from deliberate ...


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