United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
MICHAEL B. NORTH UNITED/STATES MAGISTRATE JUDGE
the standardized form that is made available to prisoners for
filing suit pursuant to 42 U.S.C. §1983, the
above-captioned matter was filed by pro se
Plaintiff, David Tran, against Defendants, the United States
Marshals Service (“USMS”), the St. Charles Parish
Correctional Center (“SCPCC, ” better known as
the Nelson Coleman Correctional Center, “NCCC”),
the St. Charles Parish Sheriff's Office
(“SCPSO”), and the unidentified Sheriff of St.
Charles Parish. (Rec. docs. 5, pp. 1, 2, 3, 4; 5-1, pp. 1,
5). Given the entities and the individual named as Defendants
herein, this matter comes before the Court for statutory
screening under 28 U.S.C. §1915A irrespective of the
fact that Plaintiff has paid the civil action filing fee
prescribed by 28 U.S.C. §1914(a). (See docket
entry between rec. docs. 7 and 8). The gatekeeping provision
codified in §1915A directs a district court to dismiss a
complaint, or any portion thereof, if it is frivolous,
malicious, fails to state a claim upon which relief can be
granted, or if it seeks monetary relief from a defendant who
is immune from providing such relief. 28 U.S.C.
§1915A(b)(1) and (2); see also 42 U.S.C.
§1997e(c)(1). For the reasons that follow, it is
recommended that Plaintiff's lawsuit be dismissed
pursuant to 1915A(b) and §1997e(c).
is a federal pre-trial detainee who was assigned to be housed
at the SCPCC/NCCC by the USMS following his arrest on Monday,
November 7, 2017 and pending the resolution of the criminal
charges that are pending against him in United States v.
Tran, No. 17-CR-217 “H” (1). In the process
of being booked into that facility by the SCPSO, Plaintiff
alleges that he was “negligently injured” when he
slipped and fell over an “improperly stored” leg
shackle that was connected to a booking bench. Despite
requesting medical care, Plaintiff states that he was not
taken to the hospital or provided any treatment for his back,
shoulder, hands, legs, and fingers, constituting deliberate
indifference to his medical needs and the negligent
imposition of suffering. (Rec. docs. 5, pp. 3, 4; 5-1, p. 5).
Plaintiff seeks three million dollars in compensatory and
punitive damages. (Rec. doc. 5-1, p. 6).
first of the four Defendants named in this matter is the
USMS, a federal law enforcement agency within the U.S.
Department of Justice. See 28 U.S.C. §561,
et seq. As to it, “[a]bsent a waiver,
sovereign immunity shields the Federal Government and its
agencies from suit.” FDIC v. Meyer, 510 U.S.
471, 475, 114 S.Ct. 996, 1000 (1994). “Sovereign
immunity is jurisdictional in nature.” Id. The
Court being undirected to and unaware of any waiver of
sovereign immunity by the USMS, via statute or otherwise, it
lacks jurisdiction to consider the claims against the agency.
Sheid v. United States Marshal Service, No.
08-CV-3295, 2009 WL 1750379 at *7 (S.D. Tex. Jun. 17, 2009),
aff'd, 379 Fed.Appx. 345 (5th Cir. 2010),
cert. denied, U.S.__, __ 131 S.Ct. 1469 (2011). Even
if that were not the case, to the extent that this matter can
be construed as a Bivens action, the counterpart to
an action under §1983, Evans v. Ball, 168 F.3d
856, 863 n. 10 (5th Cir. 1999), such an action may not be
brought against a federal agency like the USMS.
Sheid, 2009 WL 1750379 at *8. For these reasons,
Plaintiff's complaint fails to state a claim upon which
relief can be granted as to the USMS and should thus be
second Defendant named by Plaintiff in this matter is the
SCPCC/NCCC. That correctional center, however, is not a
proper defendant - it is a building, not a
“person” subject to suit under §1983.
Langlinais v. Nelson Coleman Corr. Center, No.
13-CV-3003, 2013 WL 5507303 at *1 (E.D. La. Oct. 2, 2013);
Davis v. Nelson Corr. Center, No. 10-CV-2257, 2010
WL 4935304 at *2 (E.D. La. Oct. 29, 2010), adopted,
2010 WL 4931883 (E.D. La. Nov. 30, 2010); Taylor v.
Nelson Coleman Corr. Center, No. 10-CV-0841, 2010 WL
1979618 at *2 (E.D. La. Apr. 22, 2010), adopted,
2010 WL 1980406 (E.D. La. May 14, 2010); Diggs v. Nelson
Coleman Corr. Center, No. 10-CV-0097, 2010 WL 1038229 at
*3 (E.D. La. Feb. 17, 2010), adopted, 2010 WL
1038230 (E.D. La. Mar. 17, 2010). No. valid §1983 claim
against the SCPCC/NCCC lies here.
terms of named Defendants is the SCPSO. In Louisiana, a
“… sheriff's office is not a legal entity
capable of being sued …” Cozzo v. Tangipahoa
Parish Council - President Gov't, 279 F.3d 273, 283
(5th Cir. 2002); Wetzel v. St. Tammany Parish
Jail, 610 F.Supp.2d 545, 548 (E.D. La. 2009); Causey
v. Parish of Tangipahoa, 167 F.Supp.2d 898, 904 (E.D.
La. 2001); Ruggiero v. Litchfield, 700 F.Supp. 863,
865 (M.D. La. 1988). In light of these authorities,
Plaintiff's §1983 claim against the SCPSO should
also be dismissed.
final named Defendant in this matter is the unidentified
Sheriff of St. Charles Parish. Not only does Plaintiff fail
to specifically identify the Sheriff by name, he also fails
to provide any indication in his complaint of the
capacity(ies) in which the Sheriff is being sued. “When
a pro se plaintiff does not specify in his complaint whether
a defendant is named in his or her official or individual
capacity, it is generally presumed by operation of law that
the defendant is named in his or her official
capacity.” Douglas v. Gusman, 567 F.Supp.2d
877, 888-89 (E.D. La. 2008). “'In a suit brought
against a municipal official in his [or her] official
capacity, the plaintiff must show that the municipality has a
policy or custom that caused his injury.'”
Carter v. Strain, No. 09-CV-0015, 2009 WL 3231826 at
*2 (E.D. La. Oct. 1, 2009)(quoting Parm v. Shumate,
513 F.3d 135, 142 (5th Cir. 2007), cert.
denied, 555 U.S. 813, 129 S.Ct. 42 (2008)).
“'A plaintiff may not infer a policy merely because
harm resulted from some interaction with a governmental
entity.'” Id. (quoting Colle v. Brazos
County, Texas, 982 F.2d 237, 245 (5th Cir. 1993)).
Rather, the plaintiff “. . . must identify the
policy or custom which allegedly caused the deprivation of
his constitutional rights.” Id. (citing
Murray v. Town of Mansura, 76 Fed.Appx. 547, 549
(5th Cir. 2003) and Treece v. Louisiana,
74 Fed.Appx. 315, 316 (5th Cir. 2003)).
against the foregoing standards, Plaintiff's allegations
against the Sheriff in his official capacity fail to state a
claim upon which relief can be granted, as he does not allege
that the purported deprivation resulted from a policy or
custom, much less identify any such policy or custom.
Carter, 2009 WL 3231826 at *2. Construing
Plaintiff's allegations as having been made against the
Sheriff in his individual capacity, Plaintiff fares no better
for the following reasons. Although Plaintiff identifies the
Sheriff as a Defendant on one of the pages of his complaint
(rec. doc. 5-1, p. 5), he presents no factual allegations
that specifically illustrate the Sheriff's participation
in the alleged wrong, a necessary requirement in a
civil-rights cause of action. Jacquez v. Procunier,
801 F.2d 789, 793 (5th Cir. 1986). “To state
a cause of action under §1983, the plaintiff must allege
facts reflecting the defendants' participation in the
alleged wrong, specifying the personal involvement of
each defendant.” Jolly v. Klein, 923
F.Supp. 931, 943 (S.D. Tex. 1996)(emphasis added)(citing
Murphy v. Kellar, 950 F.2d 290, 292 (5th Cir.
1992)). Moreover, supervisory officials like the Sheriff
cannot be held liable for civil-rights violations allegedly
committed by his associates based on a theory of strict or
vicarious liability. Harvey v. Andrist, 754 F.2d
569, 572 (5th Cir.), cert. denied, 471
U.S. 1126, 105 S.Ct. 2659 (1985).
Plaintiff had named one or more proper Defendants in this
matter and/or had identified and pled more specific
allegations against the Sheriff, the undersigned would
nevertheless recommend that his lawsuit be dismissed for the
following reasons. Plaintiff's primary claim is that he
was “negligently injured” when he fell over an
“improperly stored” leg shackle in the booking
area of the SCPCC/NCCC. Such an allegation is not actionable
under §1983 as the Due Process Clause is simply not
implicated by a negligent act of a state official causing
unintended loss of or injury to life, liberty, or property.
Herrera v. Millsap, 862 F.2d 1157, 1160 (5th Cir.
1989)(quoting Daniels v. Williams, 474 U.S. 327,
328, 106 S.Ct. 662, 664 (1986)).
does Plaintiff's complaint present an arguable claim for
deprivation of needed medical care. To facilitate the Court
in conducting the statutory screening mandated by
§1915A(a), earlier on in this case the Sheriff was
ordered to provide the undersigned, as well as Plaintiff,
with a verified copy of the medical records that were
generated at the SCPCC/NCCC. (Rec. doc. 8). Among those
records is an Incident Report that was prepared by Corporal
Ronald Springer the day after the occurrence. According to
that Report, at approximately 6:42 p.m. on the day in
question Springer ordered Plaintiff and two other inmates who
were seated on the bench to stand up and walk to a particular
cell. As Plaintiff was in the process of doing so, he stepped
onto a shackle that was connected to a booking bench and
slipped and fell, landing on his lower back. Springer
notified the Medical Department of the incident and four
minutes later, LPN Bridgette Oubre arrived on the scene,
checked Plaintiff's vital signs, and performed an initial
evaluation of his lower back. Oubre then conferred with Dr.
Lawrence Durante and thereafter advised Corporal Singer that
Plaintiff had been placed on the list to see the doctor and
to have an x-ray done of his lower back. Plaintiff was
prescribed Ibuprofen 800 mg three times per day and was
cleared to return to his cell. Video surveillance of the
incident was reviewed by Lieutenant Raiford who confirmed
that Plaintiff had slipped on a shackle that was attached to
a front booking bench.
being screened and processed into SCPCC/NCCC on November 7,
2017, Plaintiff was initially assigned to suicide watch after
he refused to answer questions about his current mental
state. By the following day, that assignment had been
discontinued by the doctor after Plaintiff denied suicidal
and homicidal ideations and was observed to be calm and
cooperative with normal speech. He was assigned to a bottom
bunk and appointments with two other doctors were scheduled
for November 13 and 14, 2017. Plaintiff appeared before the
Court for a detention hearing in his criminal case on
November 9, 2017. In connection with that hearing, the
undersigned issued an order directing the St. Charles Parish
Sheriff to have Plaintiff medically examined and/or treated
for “bruising/injury to back.” (Rec. doc. 13 in
No. 17-MJ-145). On November 10, 2017, Plaintiff completed a
“Request for Sick Call” form asking to be seen by
a doctor for an unspecified complaint. That form was
responded to with a request that Plaintiff identify his
medical concern. Plaintiff was seen by a psychiatrist for
suicide watch follow-up on November 13, 2017 and overall
improvement to his mental health was documented. Later that
night, Plaintiff submitted another “Request for Sick
Call, ” stating that he was hurt and needed to see a
doctor. The following day, Plaintiff was evaluated by Dr.
Wood, who ordered x-rays of the left shoulder and lumbar
spine, prescribed Tylenol for pain relief, and directed that
Plaintiff remain on lower bunk assignment for two months. The
ordered radiological studies were conducted on November 16,
2017. X-rays of the left shoulder were unremarkable. X-rays
of the lumbar spine, however, revealed an age-indeterminate
avulsion fracture of the superior anterior endplate of the L5
vertebral body with mild scattered degenerative disc disease.
pain medication list was reconciled on November 21, 2017. The
following day, Plaintiff was re-evaluated by Dr. Wood in
light of the recent x-ray results. Plaintiff's lower back
pain was said to be “better” and the plan was to
refer him to an orthopedist if there was no significant
improvement in two weeks. His medication regimen was adjusted
to better manage his pain. Per Dr. Wood's order,
Plaintiff's mattress was also to be inspected to assure
that it was properly inflated. On November 25, 2017,
Plaintiff was seen by medical personnel for a single episode
of coughing up blood and upset stomach after taking his
medications the previous evening. Plaintiff was administered
Pepto Bismol several days later after complaining of nausea
and vomiting for three days. He was observed to ambulate
without difficulty on this date. He also complained of a
continuing back and left shoulder pain in a sick call request
form dated November 26, 2017. Plaintiff was seen by Dr.
Durante on November 30, 2017 and was prescribed Vistaril. A
follow-up appointment with Dr. Wood was scheduled for
December 6, 2017.
December 4, 2017, Plaintiff completed an “Inmate
Request Form” which he directed to the Medical
Department complaining of the adequacy of the mattress in his
cell. A handwritten notation on the top right-hand corner of
the form indicates that Plaintiff was eventually provided
with a better mattress pursuant to a request from the Medical
Department. Plaintiff was seen again by Dr. Wood on December
6, 2017 and a multi-step treatment plan was put in place,
including a referral to an orthopedist. Based on recent
weight loss ...