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Ross v. Waitz

United States District Court, E.D. Louisiana

January 8, 2019

JOSEPH JEROME ROSS
v.
JOSEPH L. WAITZ, JR., ET AL.

         SECTION “I” (1)

          REPORT AND RECOMMENDATION

          JANIS VAN MEERVELD, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Joseph Jerome Ross, instituted this lawsuit by filing a largely incomprehensible pleading.[1] The Clerk of Court interpreted that pleading as an attempt to file a federal civil rights action pursuant to 42 U.S.C. § 1983, and, therefore, directed plaintiff to submit a properly completed § 1983 complaint form.[2] Plaintiff thereafter submitted the required form.[3] He then continued to file additional documents on a regular basis, although those documents were likewise largely incomprehensible.[4] However, the various pleadings appear to center on three basic allegations: (1) plaintiff was improperly charged with driving while intoxicated, third offense; (2) after his arrest, his vehicle was towed, and the towing company refuses to return the vehicle to him; and (3) he was denied adequate medical care while incarcerated.

         In this lawsuit, plaintiff sued the following defendants: the Terrebonne Parish Jail; the Terrebonne Parish Sheriff's Office; Sheriff Jerry J. Larpenter; Parish President Gordon Dove; District Attorney Joseph L. Waitz, Jr.; and Assistant District Attorneys Dixie C. Brown, Dennis J. Elfert, and Larry Ward.

         Due to the rambling nature of plaintiff's pro se pleadings, the Court has attempted to understand his allegations and claims by holding a Spears hearing[5] on November 20, 2018, and by obtaining the records concerning his arrest and conviction and his medical care at the jail.[6]Through these efforts, the Court has been able to glean the following information.

         The relevant police report shows that, on May 20, 2018, plaintiff was arrested by Houma Police Department Officer Sidney Theriot, Jr., an individual who has not been named as a defendant in this lawsuit. Plaintiff was arrested for, among other charges, driving while intoxicated, third offense. The state court records show that he pleaded guilty to that offense on August 22, 2018. However, in this lawsuit, he claims that he should have been charged with only a second (not third) offense driving while intoxicated.

         At the time of plaintiff's arrest, his vehicle was towed from the scene by Jimmy's Wrecker Service. As noted, plaintiff claims that the towing company refuses to return the vehicle to him; however, at the Spears hearing, he clarified that his property would be returned if he paid the accumulated charges owed to the towing company. Unfortunately, he does not have sufficient funds to pay those charges at the present time. Neither Jimmy's Towing Company nor any individual or entity affiliated with that business has been named as a defendant in this lawsuit.

         Lastly, plaintiff claims that, while he was incarcerated, he was denied adequate medical care for an injured finger, a hernia, and a heart problem. The individuals who allegedly denied plaintiff medical care have not been named as defendants herein.

         I. Screening Standards

         Plaintiff filed this federal civil action in forma pauperis.[7] Concerning such actions, 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).

         Because plaintiff was incarcerated at the time he filed this lawsuit, [8] he is also subject to the screening provisions of 28 U.S.C. § 1915A. That statute mandates that federal courts “review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a).[9] 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 determining 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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