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Burrow v. Lopinto

United States District Court, E.D. Louisiana

August 27, 2018

ELIJAH DEJON BURROW
v.
JOSEPH P. LOPINTO, ET AL.

         SECTION: “E” (1)

          REPORT AND RECOMMENDATION

          JANIS VAN MEERVELD UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Elijah Dejon Burrow, a state pretrial detainee, filed this pro se and in forma pauperis civil action pursuant to 42 U.S.C. § 1983. He sued the following defendants: Jefferson Parish Sheriff Joseph P. Lopinto; the Jefferson Parish Sheriff's Office; and “Officer Mclin.” In this lawsuit, plaintiff's statement of his claims, in its entirety, is as follows: “Officer Mclin punched me in my face, pulled down my pants in front of everybody, stood on my neck, laughed at me, put false charges on me, didn't return my property.”[1]

         With respect to actions filed in forma pauperis, federal law provides:

Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that ... the action …
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2)(B).

         Federal law also mandates that federal courts screen cases, such as the instant one, “in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a).[2] Regarding such lawsuits, federal law similarly requires:

On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint -
(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A(b).

         A complaint is frivolous “if it lacks an arguable basis in law or fact.” Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994). In making a determination as to whether a claim is frivolous, the Court has “not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989); Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994).

         A complaint fails to state a claim on which relief may be granted when the plaintiff does not “plead enough facts to state a claim to relief that is plausible on its face. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” In re Katrina ...


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