United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
MICHAEL B. NORTH UNITED/STATES MAGISTRATE JUDGE.
before the Court are the Rule 12(b)(1) and 12(b)(6) motions
to dismiss of Defendants, Sergeant Justin Rester and
Lieutenant Jacob Waskom. (Rec. docs. 25, 26). Plaintiff has
filed no memoranda in opposition to the motions, timely or
otherwise. Also before the Court is
Plaintiff's motion to amend. (Rec. doc. 19). For the
reasons that follow, it is ordered that Plaintiff's
motion to amend is denied and it will be recommended that
Defendants' motions be granted.
Antoine Daniels, Plaintiff herein, is an inmate of the B.B.
“Sixty” Rayburn Correctional Center
(“RCC”) in Angie, Louisiana. He filed the
above-captioned matter pursuant to 42 U.S.C. §1983
against Defendants, Sergeant Justin Rester
(“Rester”), Lieutenant Jacob Waskom
(“Waskom”), and CSM Bryan Nichols
(“Nichols”), all of whom are correctional
officers at RCC. In his complaint, Plaintiff
complained of an incident that allegedly occurred on March 7,
2017 in which Rester yanked his arm through a “tray
hatch, ” causing swelling to the wrist area and
multiple lacerations. Plaintiff also alleged that the
investigation into the incident and the prison disciplinary
proceedings that followed were premised on falsified
documents and were thus flawed and ineffective. Plaintiff
prayed for the removal of Rester and Waskom from their jobs,
$50, 000.00 in damages, and reimbursement of $30.00 in
restitution. (Rec. doc. 1). Plaintiff subsequently amended
his complaint to increase his monetary demand to $75, 000.00.
(Rec. doc. 7).
four months later, Plaintiff filed another motion to amend,
seeking to bring in five additional Defendants who were
involved in a set of separate incidents that allegedly
occurred in October of 2018. (Rec. doc. 17). On October 22,
2018, the Court denied Plaintiff's motion to amend as
raising unrelated claims against wholly new and different
Defendants. (Rec. doc. 18). More recently, Plaintiff has once
again moved to amend his complaint, alleging that in the wake
of the March 7, 2017 incident that he originally sued upon,
he was “written up” by Rester, was subsequently
haled into prison disciplinary court, and was sentenced to 10
days in administrative segregation where he was deprived of a
mattress for 15 hours per day and, at one point, was without
a mattress for a continuous 24hour period. (Rec. doc. 19).
after Plaintiff's most recent motion to amend was filed
counsel enrolled on behalf of Rester and Waskom. (Rec. doc.
21). Those two Defendants were then ordered to file a
response to Plaintiff's motion to amend. (Rec. doc. 22).
Following an intervening, unsuccessful motion for entry of
default by Plaintiff (rec. docs. 23, 24), Rester and Waskom
filed the two motions to dismiss that are presently before
the Court. (Rec. docs. 25, 26). In the first of those
motions, one brought for a lack of subject matter
jurisdiction under Rule 12(b)(1), the two moving Defendants
seek the dismissal of Plaintiff's §1983 claims
against them in their official capacity based upon Eleventh
Amendment immunity. (Rec. doc. 25). The Defendants also argue
that state officials acting in their official capacity are
not considered to be “persons” within the meaning
of §1983. (Id.). In the second motion, which
was brought pursuant to Rule 12(b)(6), the Defendants renew
the second of the two arguments that they urged in their Rule
12(b)(1) motion, i.e., that state officials acting
in their official capacity are not considered to be
“persons” under §1983. (Rec. doc. 26). The
Defendants then go on to oppose Plaintiff's recent motion
to amend, arguing that he has pleaded insufficient facts to
show that they violated federal law and that the temporary
deprivation of a mattress presents no constitutional
violation. (Id.). The Defendants specifically invoke
the qualified immunity to which they are entitled and further
argue that the use of force against Plaintiff was reasonable
and did not amount to cruel and unusual punishment and that
inmates have no right to have their grievances investigated
and resolved to their satisfaction. (Id.). As noted
above, Plaintiff has filed no memoranda in response to either
of Defendants' motions.
the primary argument raised in the first of Defendants'
motions, it is axiomatic that the Eleventh Amendment bars
citizens' suits in federal court against states, their
alter egos, and state officials acting in their official
capacity. Champagne v. Jefferson
Parish Sheriff's Office, 188 F.3d 312, 313-14
(5th Cir. 1999)(citing Voisin's Oyster
House v. Guidry, 799 F.2d 183, 185 (5th Cir. 1986)).
“Because sovereign immunity deprives the court of
jurisdiction, the claims barred by sovereign immunity can be
dismissed only under Rule 12(b)(1) and not with
prejudice.” Warnock v. Pecos County, Texas, 88
F.3d 341, 343 (5th Cir. 1996); Kervin v. City of New
Orleans, No. 06-CV-3231, 2006 WL 2849861 at *2-4 (E.D.
La. Sept. 28, 2006). In light of these authorities, it will
be recommended that Defendants' Rule 12(b)(1) motion be
granted and that Plaintiff's claims against all
of the Defendants in their official capacity be dismissed
without prejudice for want of jurisdiction.
Court now turns to arguments raised in Defendants' Rule
12(b)(6) motion which are offered in opposition to
Plaintiff's recent motion to amend. In his motion to
amend, the Court recalls, Plaintiff complained that following
the alleged use of excessive force against him on March 7,
2017, Rester “… wrote [him] up …”
for an unidentified prison rule violation, that he appeared
before the RCC Disciplinary Court several days thereafter,
and that he was sentenced to 10 days in administrative
segregation, where he was deprived of a mattress for 15 hours
per day and, at one point, was without a mattress for a
continuous 24-hour period. Notably, Plaintiff does
not allege that he was given insufficient notice of the
disciplinary proceeding against him, that he was not allowed
to present evidence in his defense, or that he was denied a
statement of the evidence that was relied upon and the reason
for the disciplinary action. More importantly, Plaintiff does
not allege that he lost any “good time” credits
as a result of the disciplinary adjudication in question,
only comforts such as the availability of a mattress during
daylight hours as is customary for inmates subject to
administrative segregation at RCC. See Smith v.
Tanner, No. 18-CV-3719, 2018 WL 6204617 at 13-15 (E.D.
La. Nov. 5, 2018), adopted, 2018 WL 6199974 (E.D.
La. Nov. 27, 2018). Sanctions of this nature, “which
are ‘merely changes in the conditions of [an
inmate's] confinement,' do not implicate due process
concerns” as they do not impose an atypical or
significant hardship beyond the ordinary incidents of prison
life. Richard v. Quarterman, No. 07-CV-2893, 2007 WL
2688442 at *2 (S.D. Tex. Sept. 10, 2007)(quoting Madison
v. Parker, 104 F.3d 765, 768 (5th Cir. 1997)); see
also Hebrard v. Cain, No. 16-CV-10913, 2016 WL 4145793
at *3 (E.D. La. July 5, 2016), adopted, 2016 WL
4131389 (E.D. La. Aug. 8, 2016). The lack of a mattress
during daylight hours or even for a continuous 24-hour period
does not rise to the level of a constitutional violation.
Smith, 2018 WL 6204617 at *13-15 (and cases cited
therein). As the claims raised in Plaintiff's proposed
amended complaint are futile, his motion for leave to amend
will be denied. Id. at *15-16.
with the recommended dismissal of Plaintiff's §1983
claims against the Defendants in their official capacity,
that will leave before the Court only Plaintiff's claims
against the Defendants in their individual capacity. In light
of the Defendants' invocation of qualified immunity, a
separate order will be issued directing Plaintiff to file a
Rule 7(a) Schultea  reply which fairly engages the
qualified immunity defense. Morin v. Caire, 77 F.3d
116, 121 (5th Cir. 1996).
foregoing reasons, it is ordered that Plaintiff's motion
to amend (rec. doc. 19) is denied.
also recommended that Defendants' motions to dismiss be
granted and that Plaintiff's claims against the
Defendants in their official capacity be dismissed without
prejudice for want of jurisdiction.
partys 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 ...