United States District Court, M.D. Louisiana
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the United States District
accordance with 28 U.S.C. § 636(b)(1), you have fourteen
(14) days after being served with the attached Report to file
written objections to the proposed findings of fact,
conclusions of law and recommendations therein. Failure to
file written objections to the proposed findings,
conclusions, and recommendations within 14 days after being
served will bar you, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual
findings and legal conclusions of the Magistrate Judge which
have been accepted by the District Court.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
MAGISTRATE JUDGE'S REPORT AND
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on Motion to Dismiss filed on
behalf of defendant Lt. Brian Hall (R. Doc. 21). The motion
is opposed. See R. Doc. 25.
pro se plaintiff, an inmate incarcerated at
Louisiana State Penitentiary (“LSP”), Angola,
Louisiana, filed this proceeding pursuant to 42 U.S.C. §
1983 against Lt. Brian Hall and Msgt. Lance Osbourne
complaining that his constitutional rights have been violated
through the use of excessive force. The plaintiff seeks
compensatory and punitive damages, as well as declaratory
Hall first seeks dismissal on jurisdictional grounds,
pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure, of the plaintiff's claim against his in his
official capacity. In this regard, the defendant is correct
that § 1983 does not provide a federal forum for a
litigant who seeks monetary damages against either a state or
its officials acting in their official capacities,
specifically because these officials are not seen to be
“persons” within the meaning of § 1983.
Will v. Michigan Department of State Police, 491
U.S. 58, 71 (1989). In addition, in Hafer v. Melo,
502 U.S. 21 (1991), the United States Supreme Court addressed
the distinction between official capacity and individual
capacity lawsuits and made clear that a suit against a state
official in an official capacity for monetary damages is
treated as a suit against the state and is therefore barred
by the Eleventh Amendment. Id. at 25. Accordingly,
the plaintiff's claims asserted against defendant Lt.
Hall in his official capacity, for monetary damages, are
subject to dismissal. In contrast, the plaintiff's claims
for monetary damages asserted against this defendant in his
individual capacity remains viable because a claim against a
state official in an individual capacity, seeking to impose
personal liability for actions taken under color of state
law, is not treated as a suit against the state. Id.
at 29. The plaintiff's claim for declaratory relief
asserted against defendant Lt. Hall in his official capacity
also remains viable because such a claim is not treated as a
claim against the state. Will v. Michigan Department of
State Police, supra, 491 U.S. at 71 n.10. Of
course, the plaintiff must prove a deprivation of a
constitutional right to obtain any relief.
to the plaintiff's claims that are not subject to
dismissal on the basis of Eleventh Amendment immunity,
defendant Lt. Hall next asserts, pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, that the plaintiff has
failed to state a claim upon which relief may be granted. In
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),
and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the
Supreme Court clarified the standard of pleading that a
plaintiff must meet in order to survive a motion to dismiss
pursuant to Rule 12(b)(6). Specifically, “[f]actual
allegations must be enough to raise a right to relief above
the speculative level.” Bell Atlantic Corp. v.
Twombly, supra, at 555. “To survive a
motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.' ”
Ashcroft v. Iqbal, supra, 556 U.S. at 678,
quoting Bell Atlantic Corp. v. Twombly,
supra. “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. It follows
that, “where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct,
the complaint has alleged-but it has not
‘show[n]'-‘that the pleader is entitled to
relief.' ” Id. at 679. “Where a
Complaint pleads facts that are ‘merely consistent
with' a defendant's liability, it ‘stops short
of the line between possibility and plausibility of
entitlement to relief.' ” Id. at 678
(internal quotation marks omitted).
motion to dismiss for failure to state a claim under Rule
12(b)(6), the Court “must accept as true all of the
factual allegations contained in the Complaint.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007). Further,
“[a] document filed pro se is ‘to be
liberally construed' ... and ‘a pro se
Complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers.' ” Id. (citation omitted).
Notwithstanding, the court need not accept “a legal
conclusion couched as a factual allegation, ”
Papasan v. Allain, 478 U.S. 265, 286 (1986), or
“naked assertions [of unlawful conduct] devoid of
further factual enhancement.” Ashcroft v.
Iqbal, supra, 556 U.S. at 678 (internal
quotation marks omitted).
Complaint as amended, the plaintiff alleges the following. On
September 9, 2015, Msgt. Lance Osbourne threatened to slap
the plaintiff before physically assaulting the plaintiff, who
was in full restraints. Osbourne had personal feelings of
disgust toward the plaintiff. He approached the plaintiff,
lifted him off the floor, and slammed him. Osbourne then
proceeded to kick the plaintiff several times. Subsequent to
the attack, Ross was issued a duty status and placed in a
September 10, 2015, Osbourne walked down the tier during
shift change. The plaintiff was scared that Osbourne would
alter his food or attack him again, so he began screaming for
help and asking for a supervisor. The plaintiff threatened to
throw something at Osbourne if he continued down the tier.
When Osbourne came closer, the plaintiff threw something at
him. Shortly after, defendant Lt. Hall arrived. He
immediately shook his can of chemical agent and sprayed the
plaintiff. The plaintiff was then placed in full restraints,
and defendant Lt. Hall began hitting the plaintiff in his
face until he was unconscious. The plaintiff suffered two
black eyes, a swollen face, bruised ribs, bleeding and
swelling to his mouth, lock jaw, and mental pain. Osbourne
and defendant Lt. Hall resigned a short time later.
response to the plaintiff's allegations, the defendant
has asserted that he is entitled to qualified immunity in
connection with the plaintiff's claims. The qualified
immunity defense is a familiar one and, employing a two-step
process, operates to protect public officials who are
performing discretionary tasks. Huff v. Crites, 473
Fed.Appx. 398 (5th Cir. 2012). As enunciated in Saucier
v. Katz, 533 U.S. 194 (2001), the first step in the
analysis is to consider whether, taking the facts as alleged
in the light most favorable to the plaintiff, the
defendant's conduct violated the plaintiff's
constitutional rights. Id. at 201. Second, the
district court looks to whether the rights allegedly violated
were clearly established. Id. This inquiry, the
Court stated, is undertaken in light of the specific context
of the case, not as a broad, general proposition.
Id. The relevant, dispositive inquiry in determining
whether a constitutional right was clearly established is
whether it would have been clear to a reasonable state
official that his conduct was unlawful in the situation which
he confronted. Id.
the qualified immunity analysis, the Court finds that the
defendant's motion should be granted in part.
Specifically, the Court concludes that the plaintiff's
claim against ...