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Tabor v. Coleman

United States District Court, W.D. Louisiana, Shreveport Division

December 3, 2018

TONY JOSEPH TABOR
v.
VINCENT COLEMAN, ET AL.

         SECTION P

          S. MAURICE HICKS, JR. JUDGE

          REPORT AND RECOMMENDATION

          KAREN L. HAYES UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Tony J. Tabor, a prisoner at David Wade Correctional Center proceeding pro se and in forma pauperis, filed the instant proceeding on October 4, 201');">18, under 42 U.S.C. § 1');">1983. He names Vincent Coleman as Defendant.[1');">1" name="FN1');">1" id="FN1');">1">1');">1] This matter has been referred to the undersigned for review, report, and recommendation in accordance with 28 U.S.C. § 636 and the standing orders of the Court. For the following reasons, it is recommended that, with the exception of Plaintiff's excessive force claim, Plaintiff's claims be dismissed.[2]

         Background

         Plaintiff, who suffers from bipolar disorder, post-traumatic stress disorder, depression, and Guillain-Barre Syndrome (“GBS”), alleges that, on an unknown date in 201');">17, Defendant Coleman instructed him to “come to the cell bars” and then sprayed him with an excessive, “non-policy” amount of chemical agent in the eyes, nose, and mouth. [doc. #s 1');">1, pp. 3-5; 1');">11');">1');">1');">11');">1, 1');">1');">p. 1');">1]. Plaintiff alleges that he never posed a threat to anyone and that Coleman sprayed him after accusing Plaintiff of “yelling out of his cell.” [doc. # 1');">11');">1');">1');">11');">1, 1');">1');">p. 1');">1].

         Plaintiff began rinsing his face in the toilet, but Coleman returned and sprayed him again, allegedly stating, “I told you to hold the noise . . . .” [doc. #s 1');">1, p. 4; 1');">11');">1');">1');">11');">1, 1');">1');">p. 1');">1]. Plaintiff “reacted by fanning his large bath towel to protect his life . . . .” [doc. # 1');">11');">1');">1');">11');">1, 1');">1');">p. 1');">1].

         Plaintiff also claims: (1');">1) that, because he exercised his freedom of speech and association, he endured retaliation; (2) that his right to practice his religion was violated “while on 34 [sic] for thirty days” because he lacked a Bible; (3) that he was “placed on thirty-four [sic] for 30 days, ” without exercise, sanitation, a mattress, or adequate clothing; and (4) that he was deprived of sleep while on “34” because he lacked a mattress and adequate clothing. [doc. # 1');">1, 5');">p. 5]. He explains that “‘34' occurs when an offender is placed in a paper gown for thirty days without personal property, without recreation, without bedding, [and] without the use of the phone.” [doc. # 1');">11');">1');">1');">11');">1, p. 2');">p. 2]. He was placed on “34” because he fanned his bath towel after Coleman sprayed him. Id. He adds that Coleman was aware of his physical and mental conditions. [doc. # 1');">1, p. 5].

         Plaintiff asks the Court to demote Defendant, and he seeks $1');">100, 000.00, $250.00 for each day that he was deprived of bedding, and an injunction prohibiting Coleman from using a “chemical agent to harm anyone else.” [doc. #s 1');">1, p. 7; 1');">11');">1');">1');">11');">1, p. 4].

         Plaintiff filed a “Motion for Protective Order” on October 26, 201');">18, reiterating that Coleman sprayed him with a chemical agent and claiming that he fears that Coleman will spray him again. [doc. # 5, p. 2');">p. 2]. He asks the Court to protect him “from all physical and or mental harm” and to prevent Coleman from interacting with him unsupervised. Id. at 3. Plaintiff maintains that he will prove his allegations “upon discovery.” Id. at 2.

         Law and Analysis

         1');">1. Preliminary Screening

         Plaintiff 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, his complaint is subject to preliminary screening pursuant to 28 U.S.C. § 1');">191');">15A.[3] See Martin v. Scott, 1');">156 F.3d 578, 579-80 (5th Cir.1');">1998) (per curiam). Because he is proceeding in forma pauperis, his Complaint is also subject to screening under § 1');">191');">15(e)(2). Both § 1');">191');">15(e)(2) (B) and § 1');">191');">15A(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.

         A complaint is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 1');">19');">490 U.S. 31');">19, 325 (1');">1989). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Id. at 327. Courts are also afforded the unusual power to pierce the veil of the factual allegations and dismiss those claims whose factual contentions are clearly baseless. Id.

         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');">550 U.S. 544, 570 (2007); accord Ashcroft v. Iqbal, 556 U.S. 662');">556 U.S. 662, 678 (2009). Likewise, a complaint fails to state a claim upon which relief can be granted if it appears that no relief could be granted under any set of facts that could be proven consistent with the allegations of the complaint. Of course, in making this determination, the court must assume that all of the plaintiff's factual allegations are true. Bradley v. Puckett, 1');">157 F.3d 1');">1022');">1');">157 F.3d 1');">1022, 1');">1025 (5th Cir. 1');">1998).

         A civil rights plaintiff must support his claims with specific facts demonstrating a constitutional deprivation and may not simply rely on conclusory allegations. Ashcroft, 556 U.S. at 662; Schultea v. Wood, 1');">1427');">47 F.3d 1');">1427, 1');">1433 (5th Cir. 1');">1995). Nevertheless, a district court is bound by the allegations in a plaintiff's complaint and is “not free to speculate that the plaintiff ‘might' be able to state a claim if given yet another opportunity to add more facts to the complaint.” Macias v. Raul A. (Unknown) Badge No. 1');">153, 23 F.3d 94, 97 (5th Cir. 1');">1994).

         A hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n.4 (5th Cir. 1');">1991');">1). A district court may dismiss a prisoner's civil rights complaint as frivolous based upon the complaint and exhibits alone. Green v. McKaskle, 788 F.2d 1');">11');">1');">1');">11');">11');">16, 1');">11');">1');">1');">11');">120 (5th Cir. 1');">1986).

         2. ...


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