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Thompson v. Link

United States District Court, W.D. Louisiana, Lake Charles Division

March 29, 2019

MARK ANTHONY THOMPSON REG. # 44671-379
v.
ERIC LINK, ET AL.

          FOOTE JUDGE.

          REPORT AND RECOMMENDATION

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.

         Before the court is a civil rights complaint and amendment thereto [docs. 1, 5] filed pursuant to Bivens v. Six Unknown Named Agents, 91 S.Ct. 1999 (1971), by Mark Anthony Thompson, who is proceeding pro se and in forma pauperis in this matter. It has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of this court.

         I. Background

         Thompson brings this civil rights complaint against various individuals - namely, a Department of Homeland Security investigator, two Assistant United States Attorneys, and a retired United States district judge - involved in his 2015 conviction in this court for attempted production of child pornography and attempt to entice a minor to engage in criminal sexual activity. Doc. 1; see United States v. Thompson (“Thompson I”), No. 2:14-cr-0074 (W.D. La. Dec. 4, 2015). As a result of these convictions Thompson was sentenced to concurrent terms of 360 months' imprisonment. Thompson I, No. 2:14-cr-0074, at doc. 195. Thompson's conviction and sentence were affirmed on appeal and this court has recommended that his Motion to Vacate filed under 28 U.S.C. § 2255 be denied in all respects. See United States v. Thompson (“Thompson II”), 709 Fed. App'x 758 (5th Cir. 2017), cert. denied, 138 S.Ct. 934 (2018); Thompson I, No. 2:14-cr-0074, at doc. 263.

         Thompson now complains of misconduct by the attorneys, investigator, and judge assigned to his case, including unlawful search and seizure, violation of the First Amendment through the government's use of Thompson's statements as evidence at trial, improper remarks and conduct, and suppression of favorable evidence. Docs. 1, 5. Except for the illegal search and First Amendment allegations, these claims were litigated on his appeal and have been raised again in his § 2255 motion. Thompson II, 709 Fed. App'x at 761-66; Thompson I, No. 2:14-cr-0074, at doc. 263.

         II. Law & Analysis

         A. Frivolity Review

         Thompson has been granted leave to proceed in forma pauperis in this matter. Accordingly, his complaint is subject to screening under 28 U.S.C. § 1915(e)(2). That statute provides for sua sponte dismissal of any claim that the court determines is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

         A complaint is frivolous if it lacks an arguable basis in law or fact. Gonzalez v. Wyatt, 157 F.3d 1016, 1019 (5th Cir. 1998). A complaint fails to state a claim upon which relief may be granted if it is clear the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief. Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215 (5th Cir. 1998). When determining whether a complaint is frivolous or fails to state a claim upon which relief may be granted, the court must accept plaintiff's allegations as true. Horton v. Cockrell, 70 F.3d 397, 400 (5th Cir. 1995) (frivolity); Bradley v. Puckett, 157 F.3d at 1025 (failure to state a claim).

         B. Section 1983/Bivens Liability

         The Civil Rights Act of 1871 created a broad right of action for damages against state officials for “deprivation of any rights, privileges, or immunities secured by the Constitution.” 42 U.S.C. § 1983 (emphasis added); see Ziglar v. Abbasi, 137 S.Ct. 1843, 1854 (2017). Bivens provides an analogous damages remedy for civil rights violations committed by federal actors. However, it has only been recognized by the Supreme Court for Fourth, Fifth, and Eighth Amendment violations. Abbasi, 137 S.Ct. at 1854-55. Accordingly, lower courts must exercise caution in determining whether Bivens remedies are available in contexts not yet recognized by the Supreme Court. See Butts v. Martin, 877 F.3d 571, 588 (5th Cir. 2017) (remanding case to district court for consideration of whether Bivens provided a remedy for plaintiff's free exercise claim).

         C. Application to the Complaint

         As an initial matter, the court notes that Judge Patricia Minaldi is not a proper party to the suit. Federal Rule of Civil Procedure 17 directs this court to look to state law to determine capacity to sue or be sued. Under Louisiana law, the proper party following demise of the person who would have been the party is the representative appointed in the succession proceeding brought as a result of the death. See, e.g., State ex rel. Dep't of Transp. & Dev. v. Estate of Davis, 572 So.2d 39, 42- 43 (La. 1990) (citing La. Code Civ. P. art. 734). Judge Minaldi, whom Thompson seeks to sue in her personal capacity, is deceased. Accordingly, any claims against her should be dismissed under 28 U.S.C. ยง ...


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