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
matter comes before the Court on Motions to Dismiss filed on
behalf of defendants Louisiana Department of Corrections,
James Leblanc, Darrel Vannoy, Jerry Goodwin, Joseph
Lamartiniere, Stephanie Lamartiniere, Jimmy Smith, Tim
Delaney, Kevin Benjamin, Randy Lavespere, Trent Barton,
Shirley Cooley, Tracy Falgout, Matthew Gamble, Melvin Warner,
Lonnie Nail, Justin Worsham, Michael Strain, Jesse Bellamy,
Mark Hunter, Roy Adams, Roger Young, Steve Hayden, River
Kirby, Marcia Booker, Carol Gilcrease, Herman Holmes, and
Joel Williams (R. Docs. 36, 66, and 85). Two Motions (R.
Docs. 66 and 85) are opposed. See R. Docs. 78 and
se plaintiff, an inmate formerly confined at the
Louisiana State Penitentiary (“LSP”), Angola,
Louisiana, filed this action pursuant to 42 U.S.C. §
1983 and the Americans With Disabilities Act, 42 U.S.C.
§ 12101, et seq. (“ADA”) against numerous
defendants complaining that his constitutional rights were
violated due to the use of excessive force and deliberate
indifference to his serious medical needs. As an initial
matter, the Court notes that on April 3, 2019, the Court
dismissed all of the plaintiff's claims, with prejudice,
except the plaintiff's claim for deliberate indifference
to his serious medical needs asserted against defendants S.
Lamartiniere, Adams, Dr. Lavespere, Dr. Gamble, Bellamy and
Smith, and the plaintiff's claim for excessive force
asserted against defendant Holmes, all occurring prior to
March 1, 2017.See R. Docs. 90 and 95. As such,
the Motion to Dismiss filed on behalf of defendants Louisinaa
Department of Corrections, James Leblanc, Darrel Vannoy,
Jerry Goodwin, Joseph Lamartiniere, Stephanie Lamartiniere,
Jimmy Smith, Tim Delaney, Kevin Benjamin, Randy Lavespere,
Trent Barton, Shirley Cooley, Tracy Falgout, Matthew Gamble,
Melvin Warner, Lonnie Nail, Justin Worsham, Michael Strain,
Jesse Bellamy, Mark Hunter, Roy Adams, and Roger Young (R.
Doc. 36) is moot except with regards to defendants S.
Lamartiniere, Smith, Dr. Lavespere, Dr. Gamble, Bellamy, and
Adams. The Motion to Dismiss filed on behalf of defendant
Steve Hayden (R. Doc. 66) is moot in its entirety. The Motion
to Dismiss filed on behalf of defendants River Kirby, Marcia
Booker, Carol Gilcrease, Herman Holmes, and Joel Williams (R.
Doc. 85) is moot except with regards to defendant Holmes.
to the claims not rendered moot by virtue of this Court's
Ruling (R. Doc. 95), the moving defendants first seek
dismissal on jurisdictional grounds, pursuant to Rule
12(b)(1) of the Federal Rules of Civil Procedure, of the
plaintiff's claim against them in their official
capacities. In this regard, the defendants are correct that
§ 1983 does not provide a federal forum for a litigant
who seeks monetary damages against either a state or its
officials acting in their official capacities, specifically
because these officials are not seen to be
“persons” within the meaning of § 1983.
Will v. Michigan Department of State Police, 491
U.S. 58, 71 (1989). In addition, in Hafer v. Melo,
502 U.S. 21 (1991), the United States Supreme Court addressed
the distinction between official capacity and individual
capacity lawsuits and made clear that a suit against a state
official in an official capacity for monetary damages is
treated as a suit against the state and is therefore barred
by the Eleventh Amendment. Id. at 25.
the plaintiff's claims asserted against the defendants in
their official capacities, for monetary damages, are subject
to dismissal. In contrast, the plaintiff's claims for
monetary damages asserted against the defendants in their
individual capacities remain viable because a claim against a
state official in an individual capacity, seeking to impose
personal liability for actions taken under color of state
law, is not treated as a suit against the state. Id.
at 29. The plaintiff's claims for declaratory and
injunctive relief asserted against the defendants in their
official capacities also remain viable because such a claim
is not treated as a claim against the state. Will v.
Michigan Department of State Police, supra, 491
U.S. at 71 n.10. Of course, the plaintiff must prove a
deprivation of a constitutional right to obtain any relief.
to the plaintiff's claims that are not subject to
dismissal on the basis of Eleventh Amendment immunity, the
defendants next assert, pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, that the plaintiff has
failed to state a claim upon which relief may be granted. In
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),
and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the
Supreme Court clarified the standard of pleading that a
plaintiff must meet in order to survive a motion to dismiss
pursuant to Rule 12(b)(6). Specifically, “[f]actual
allegations must be enough to raise a right to relief above
the speculative level.” Bell Atlantic Corp. v.
Twombly, supra, at 555. “To survive a
motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.' ”
Ashcroft v. Iqbal, supra, 556 U.S. at 678,
quoting Bell Atlantic Corp. v. Twombly,
supra. “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. It follows
that, “where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct,
the complaint has alleged-but it has not
‘show[n]'-‘that the pleader is entitled to
relief.' ” Id. at 679. “Where a
Complaint pleads facts that are ‘merely consistent
with' a defendant's liability, it ‘stops short
of the line between possibility and plausibility of
entitlement to relief.' ” Id. at 678
(internal quotation marks omitted).
motion to dismiss for failure to state a claim under Rule
12(b)(6), the Court “must accept as true all of the
factual allegations contained in the Complaint.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007). Further,
“[a] document filed pro se is ‘to be
liberally construed' ... and ‘a pro se
Complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers.' ” Id. (citation omitted).
Notwithstanding, the court need not accept “a legal
conclusion couched as a factual allegation, ”
Papasan v. Allain, 478 U.S. 265, 286 (1986), or
“naked assertions [of unlawful conduct] devoid of
further factual enhancement.” Ashcroft v.
Iqbal, supra, 556 U.S. at 678 (internal
quotation marks omitted).
Complaint as amended (R. Docs. 1, 6, 8, 31, and 69), the
plaintiff alleges in short that on May 16, 2015 his upper
body and head were shut in a cell door due to a mechanism
dysfunction. As a result of the incident, the plaintiff began
to suffer from vertigo and seizures which caused him to fall
furthering injuring his head, neck, and back. The resultant
unbearable pain causes the plaintiff to suffer from anxiety
and depression resulting in acts of self-harm which include
cutting of various body parts and banging of the head.
numerous requests for treatment of his pain, the plaintiff
has not been provided with any form of effective treatment
for his pain. On several occasions of self-harm, the
plaintiff's resulting injuries were untreated or not
promptly treated. On other occasions, the plaintiff's
threats of self-harm were ignored resulting in the plaintiff
being placed on standard watch only and ending in acts of
self-harm. Additionally, the plaintiff has been written up
for behaviors resulting from his mental illness and excessive
force has been used against the plaintiff for the same
reason. In September of 2017, the plaintiff filed a
“sensitive ARP” directly with the secretary of
the Department of Corrections. The ARP was rejected in
October of 2017 and the details of the plaintiff's
grievance became known at the prison. The following month,
the plaintiff was transferred to the David Wade Correctional
Center (“DWCC”) in retaliation for filing the
some of the plaintiff's property was lost and some was
unfairly confiscated. The plaintiff's medical and mental
health needs still remain untreated, and the plaintiff ...