United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE.
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).
Lodge cannot show that his constitutional rights have been
violated, his complaint should be dismissed.
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).
Law and Analysis
Lodge's complaint is subject to screening under
§§ 1915(e)(2)(b) and 1915A.
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.
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).
Lodge cannot establish that he suffered a constitutional
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).
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).
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 ...