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.
in Baton Rouge, Louisiana.
JUDGE'S REPORT AND RECOMMENDATION
pro se plaintiff, an inmate confined at Elayn Hunt
Correctional Center (“EHCC”) filed this
proceeding pursuant to 42 U.S.C. § 1983 against Warden
Tim Hooper. He prays for an investigation to help him get his
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.
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,
1119 (5th Cir. 1986).
plaintiff alleges that while incarcerated at Caddo
Correctional Center he became homosexual. He later realized
he had a physical deformity in his genital area and became
heterosexual again. When other inmates asked him if he was
still homosexual, he responded that he was not because he had
changed his life because he was being murdered and his vital
life was gone. He could no longer see behind him but could
see his spirit.
plaintiff further alleges that he was transferred to EHCC,
and that his conscious is now blocked and he is being
terrorized. The plaintiff requests a federal investigation to
help him get his spirit back.
plaintiff's Complaint fails to state a federal
constitutional claim cognizable under 42 U.S.C. § 1983,
which statute provides for a private right of action against
any person who, acting under color of state law, deprives an
individual of rights, privileges, or immunities secured by
the Constitution or laws of the United States. The plaintiff
has not presented a logical set of facts which would enable
the Court to determine the factual or legal basis for any
cause of action. Rather, the plaintiff's claims are
frivolous as the plaintiff has raised only fanciful
extent that the plaintiff's allegations may be
interpreted as seeking to invoke the supplemental
jurisdiction of this court over potential state law claims, a
district court may decline the exercise of supplemental
jurisdiction if a plaintiff's state law claims raise
novel or complex issues of state law, if the claims
substantially predominate over the claims over which the
district court has original jurisdiction, if the district
court has dismissed all claims over which it had original
jurisdiction, or for other compelling reasons. 28 U.S.C.
§ 1367. In the instant case, ...