United States District Court, E.D. Louisiana
JARRED C. SIMMONS
JOSEPH LOPINTO, ET AL.
REPORT AND RECOMMENDATION
MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE
U.S.C. §1983 proceeding was filed in forma
pauperis by pro se Plaintiff, Jarred C.
Simmons, against Defendants, Jefferson Parish Sheriff Joseph
P. Lopinto and Chief Sue Ellen Monfra and Deputy A. Sylvester
of the Jefferson Parish Correctional Center
(“JPCC”). (Rec. docs. 1, pp. 1, 5; 5).
Simmons is an inmate of the JPCC in Gretna, Louisiana, who is
awaiting trial on a series of charges, most notably with
being a principal to second-degree murder and attempted
second-degree murder. While incarcerated at JPCC, Plaintiff
alleges that on March 24, 2018, “Dep. Sylvester
pick[ed] up two cups off the ground and threw juice into my
face.” (Rec. doc. 1, p. 5). A prison grievance that
Plaintiff reportedly lodged regarding the incident was not
responded to. (Id.). In his prayer for relief,
Plaintiff merely asks for assistance in asserting his
putative claim. (Id. at p. 6).
noted above, Plaintiff has instituted suit herein in
forma pauperis pursuant to 28 U.S.C. §1915. (Rec.
doc. 5). A proceeding brought in forma pauperis may
be dismissed as frivolous under §1915(e)(2)(B)(i) if the
claim alleged therein has no arguable basis in law or fact,
Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993),
or if it fails to state a claim upon which relief can be
granted. 28 U.S.C. §1915(e)(2)(B)(ii). See also
28 U.S.C. §1915A(b), 24 U.S.C. §1997e(c). Giving
the instant complaint a liberal reading, it is the
recommendation of the undersigned that this matter be
dismissed as frivolous and for failing to state a claim upon
which relief can be granted.
gives no indication in his complaint of the capacity in which
the named Defendants are 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 named Defendants in their 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. Viewing
Plaintiff's allegations as having been made against
Defendants Lopinto and Monfra in their individual capacity,
he fares no better because “[p]laintiffs suing
governmental officials in their individual capacities . . .
must allege specific conduct giving rise to a constitutional
violation. This standard requires more than conclusional
assertions: The plaintiff must allege specific facts giving
rise to the constitutional claims.” Id. at *1
(quoting Oliver v. Scott, 276 F.3d 736, 741 (5th
Cir. 2002)). This is so because “‘[p]ersonal
involvement is an essential element of a civil rights cause
of action.'” Id. (quoting Thompson v.
Steele, 709 F.2d 381, 382 (5th Cir. 1983)).
Supervisory officials like the Sheriff and Chief Monfra
“. . . cannot be held liable for federal civil rights
violations allegedly committed by … [their]
subordinates based merely on a theory of strict liability or
vicarious liability.” Id. (footnotes omitted).
Respondeat superior is simply not a concept that is
applicable to proceedings brought under §1983.
Harvey v. Andrist, 754 F.2d 569, 572 (5th
Cir.), cert. denied, 471 U.S. 1126, 105 S.Ct. 2659
(1985); Lozano v. Smith, 719 F.2d 756, 768,
(5th Cir. 1983); Douthit v. Jones, 641
F.2d 345, 346 (5th Cir. 1981).
than identifying the Sheriff and Chief Monfra as Defendants
in the caption of and again on page five of his complaint,
Plaintiff's principal pleading contains no allegations
whatsoever regarding their involvement in the matter of which
he complains. Plaintiff's failure to plead facts
specifying how the Sheriff and Chief Monfra were involved in
the alleged wrong is fatal to his claim against those
Defendants in their individual capacity. Jacquez v.
Procunier, 801 F.2d 789, 793 (5th Cir. 1986); Jolly
v. Klein, 923 F.Supp. 931, 943 (S.D. Tex. 1996).
leaves before the Court the primary claim herein:
Plaintiff's Eighth Amendment claim for excessive force
against Deputy Sylvester in his individual capacity. In order
to prevail on such a claim, Plaintiff must first prove up the
subjective component by establishing that “… the
defendant acted maliciously and sadistically in an
‘unnecessary and wanton infliction of pain.'”
Mosley v. White, 464 Fed.Appx. 206, 211-12 (5th Cir.
2010)(quoting Hudson v. McMillian, 503 U.S. 1, 8,
112 S.Ct. 995, 1000 (1992)). Second is an objective component
which requires a prisoner to demonstrate that the alleged
wrongdoing was objectively “harmful enough” to
establish a constitutional violation. Id. (quoting
Hudson, 503 U.S. at 8, 112 S.Ct. at 999). Not every
malevolent touch, push, or shove by a prison guard gives rise
to a federal cause of action. Hudson v. McMillian,
503 U.S. 1, 9, 112 S.Ct. 995, 1000 (1992). “Thus, a
party's claim must allege more than a de minimis
use of physical force in order to state a prima
facie case of an Eighth Amendment violation.”
Mosley, 464 Fed.Appx. at 212 (citing Eason v.
Holt, 73 F.3d 600, 604 n. 24 (5th Cir.
1996)). “The de minimis use of physical force
is excluded from ‘constitutional recognition,'
unless it is of a sort ‘repugnant to the conscience of
mankind.'” Id. (quoting Hudson,
503 U.S. at 9-10, 112 S.Ct. at 1000). Although there is no
categorical requirement that the physical injury be
significant, serious, or more than minor, “… it
is clear that some physical injury is required.”
Lacey v. Galveston County Sheriff's Dept., No.
06-CV-0441, 2008 WL 624615 at *6 (S.D. Tex. Mar. 5, 2008). If
a prisoner fails to establish either the subjective or
objective components, “… there is not a valid
Eighth Amendment claim.” Mosley, 464 Fed.Appx.
at 212; see also Bailey v. Kirkland, No. 08-CV-1125,
2009 WL 1956286 at *2 (W.D. La. Jul. 6, 2009)(Eighth
Amendment claim not actionable without showing of physical
addition, 42 U.S.C. §1997e(e) provides that “[n]o
Federal civil action may be brought by a prisoner confined in
a jail, prison, or other correctional facility, for mental or
emotional injury suffered while in custody without a prior
showing of physical injury.” In Siglar v.
Hightower, 112 F.3d 191, 193 (5th Cir. 1997),
the Fifth Circuit recognized that the Eighth Amendment's
prohibition against cruel and unusual punishment excludes
from constitutional recognition de minimis uses of
physical force, provided that the use of force is not of a
sort “repugnant to the conscience of mankind.”
Because the plaintiff's injury in that case - a sore,
bruised ear lasting for three days - was considered de
minimis, the Fifth Circuit found that he had failed to
raise a valid Eighth Amendment claim for excessive force.
Id. at 193-94. In an earlier case, Jackson v.
Culbertson, 984 F.2d 699 (5th Cir. 1993), the
Fifth Circuit affirmed the dismissal of the plaintiff's
excessive force claim as frivolous, finding that the spraying
of the inmate with a fire extinguisher with no resulting
injury “… was a de minimis use of
physical force and was not repugnant to the conscience of
mankind.” Id. at 700. In another case that
post-dated Siglar, the court found plaintiff's
Eighth Amendment claim to be frivolous where the defendant
“… approached him as he was eating dinner,
poured water into his food tray from a pitcher on the table,
and then poured water from her drinking bottle on
plaintiff's head and back …” Ekpin v.
Bell, No. 04-CV-0036, 2004 WL 1515562 at *1-3 (N.D. Tex.
Jul. 6, 2004). And in Fackler v. Dillard, No.
06-CV-10466, 2006 WL 2404498 at *3 (E.D. Mich. Aug. 16,
2006), the court found that “[t]hrowing a small
(allegedly four ounce) cup of urine through an inmate's
food slot resulting in urine splashing on the inmate
undoubtedly constitutes a de minimis use of force
… [and] ‘is not a sort repugnant to the
conscience of mankind.'” Id. (citation
in the present case does not allege that he suffered any
physical injury as a result of reportedly having juice thrown
in his face by Deputy Sylvester. Guided by the authorities
cited above, the Court is constrained to conclude that
Plaintiff suffered nothing more than a de minimis
use of physical force that is not repugnant to the conscience
of mankind and thus fails to state an actionable Eighth
Amendment claim. Although Plaintiff is undoubtedly aware of
how to assert a demand for compensatory damages,  he makes no
such demand in this case which would, at any rate, be barred
by §1997e(e). No constitutional violation being apparent
here or any other valid basis upon which to support an award
of compensatory or even nominal damages, punitive damages are
also not recoverable in this matter. See Hutchins v.
McDaniels, 512 F.3d 193, 196-98 (5th Cir. 2007);
Douglas v. Gusman, 567 F.Supp.2d 877, 891-92 (E.D.
La. 2008); Foley v. Cain, No. 13-CV-0370, 2015 WL
729913 at *3 (M.D. La. Feb. 18, 2015)(plaintiff must prove
deprivation of a constitutional right to obtain relief in the
form of nominal or punitive damages).
foregoing reasons, it is recommended that Plaintiffs suit be
dismissed with prejudice pursuant to 28 U.S.C.
§1915(e)(2)(B)(i) and (ii).
party's failure to file written objections to the
proposed findings, conclusions, and recommendation contained
in a magistrate judges report and recommendation within 14
days after being served with a copy shall bar that party,
except upon grounds of plain error, from attacking on appeal
the unobjected-to proposed factual findings and legal
conclusions accepted by the district court, provided that the
party has been served with notice that such consequences ...