United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR., UNITED STATES MAGISTRATE JUDGE
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.
JUDGE'S REPORT AND RECOMMENDATION
pro se plaintiff, a person confined at the Louisiana
State Penitentiary (“LSP”) filed this proceeding
pursuant to 42 U.S.C. § 1983 against the Louisiana
Department of Public Safety and Corrections complaining that
his constitutional rights have been violated in conjunction
with a disciplinary proceeding and due to denial of his right
of access to the courts. He prays for injunctive relief.
to 28 U.S.C. §§ 1915(e) and 1915A, this Court is
authorized to dismiss an action or claim brought by a
prisoner who is proceeding in forma pauperis or is
asserting a claim against a governmental entity or an officer
or employee of a governmental entity if satisfied that the
action or claim is frivolous, malicious or fails to state a
claim upon which relief may be granted. An action or claim is
properly dismissed as frivolous if the claim lacks an
arguable basis either in fact or in law. Denton v.
Hernandez, 504 U.S. 25, 31 (1992), citing Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Hicks v.
Garner, 69 F.3d 22, 24-25 (5th Cir. 1995).
is factually frivolous if the alleged facts are
“clearly baseless, a category encompassing allegations
that are ‘fanciful,' ‘fantastic,' and
‘delusional.'” Id. at 32-33. A claim
has no arguable basis in law if it is based upon an
indisputably meritless legal theory, “such as if the
complaint alleges the violation of a legal interest which
clearly does not exist.” Davis v. Scott, 157
F.3d 1003, 1005 (5th Cir. 1998). The law accords judges not
only the authority to dismiss a claim which is based on an
indisputably meritless legal theory, but also the unusual
power to pierce the veil of the factual allegations.
Denton v. Hernandez, supra, 504 U.S. at 32.
Pleaded facts which are merely improbable or strange,
however, are not frivolous for purposes of § 1915.
Id. at 33; Ancar v. Sara Plasma, Inc., 964
F.2d 465, 468 (5th Cir. 1992). A § 1915 dismissal may be
made any time, before or after service or process and before
or after an answer is filed, if the court determines that the
allegation of poverty is untrue; or the action is frivolous
or malicious; fails to state a claim on which relief may be
granted; or seeks monetary relief against a defendant who is
immune from such relief.” See 28 U.S.C. §
1915(e)(2) and Green v. McKaskle, 788 F.2d 1116,
1999 (5th Cir. 1986).
plaintiff alleges the following in his Complaint: On July 24,
2013, the plaintiff was issued a false disciplinary report.
During the disciplinary board hearing, the plaintiff was not
allowed to present exculpatory evidence and was found guilty.
The plaintiff filed a grievance which was denied, and the
plaintiff was advised to seek relief through the prison
disciplinary appeal process.
plaintiff appealed through the prison disciplinary appeal
process, but his appeal was not processed within the
timeframe set forth by the prison's procedural rules. The
plaintiff then filed for review in the state trial court;
however, the court refused to hear the plaintiff's claims
until the plaintiff resubmitted each claim individually due
to the court's finding that the plaintiff presented
multiple claims stemming from different foundations.
library to which the plaintiff has access is not adequate
thereby further inhibiting his access to the courts.
Additionally, when the plaintiff was transferred to a
segregated unit all his personal property was lost during the
transfer. The plaintiff exhausted the prison procedures and
then pursued his claim regarding his lost property in the
trial court. The plaintiff's claim remained pending in
the trial court as of the date of filing of his Complaint
the only named defendant is the Louisiana Department of
Public Safety and Corrections. Pursuant to 42 U.S.C. §
1983, only a “person” may be sued for the
violation of an inmate's constitutional rights. The
Department of Public Safety and Corrections is not a person
within the meaning of § 1983. Washington v.
Louisiana, 425 Fed.Appx. 330, 333 (5th Cir. 2011).
However, even if the plaintiff would be allowed to amend his
Complaint to name additional defendants you are persons
within the meaning of § 1983, he would still fail to
state a claim upon which relief can be granted.
regards to the handling of the plaintiff's grievances and
disciplinary appeals by the prison and the state court, an
inmate does not have a constitutional right to have his
prison disciplinary or administrative proceedings properly
investigated, handled, or favorably resolved. Mahogany v.
Miller, 252 Fed.Appx. 593, 595 (5th Cir. 2007), and
there is no procedural due process right inherent in such a
claim. As stated by the United States Court of Appeal for the
Fifth Circuit in Geiger v. Jowers, 404 F.3d 371 (5th
Cir. 2005) (in the context of the handling of an
Insofar as [the plaintiff] seeks relief regarding an alleged
violation of his due process rights resulting from the prison
grievance procedures, the district court did not err in
dismissing his claim as frivolous…[The plaintiff] does
not have a federally protected liberty interest in having
these grievances resolved to his satisfaction. As he relies
on legally nonexistent interest, any alleged due process