United States District Court, W.D. Louisiana, Lake Charles Division
MARK ANTHONY THOMPSON REG. # 44671-379
ERIC LINK, ET AL.
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
Law & Analysis
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).
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).
Section 1983/Bivens Liability
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).
Application to the Complaint
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. § ...