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Simmons v. Louisiana Department of Public Safety and Corrections

United States District Court, M.D. Louisiana

February 5, 2019

JERRY SIMMONS #593386
v.
LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS

          NOTICE

          RICHARD L. BOURGEOIS, JR., UNITED STATES MAGISTRATE JUDGE

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.

         In 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.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

         The 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.

         Pursuant 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).

         A claim 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).

         The 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.

         The 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.

         The law 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 herein.

         First, 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.

         With 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 administrative grievance):

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 ...

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