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 Motion for Judgment on the
pleadings filed on behalf of defendants Warden Daryl Vannoy
and Major Jimmy Smith (R. Doc. 74). The motion is opposed.
See R. Doc. 77.
pro se plaintiff, an inmate confined at the
Louisiana State Penitentiary (“LSP”), Angola,
Louisiana, filed this proceeding pursuant to 42 U.S.C. §
1983 against numerous defendants alleging that his
constitutional rights have been violated due to
unconstitutional conditions of confinement and the use of
excessive force. He prays for injunctive, declaratory and
moving defendants move for a judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12(c), and
assert, inter alia, that the plaintiff has failed to
state a claim upon which relief may be granted. A motion for
judgment on the pleadings is evaluated on the same basis as a
motion to dismiss filed pursuant to Federal Rule of Civil
Procedure 12(b)(6). Gentilello v. Rege, 627 F.3d
540, 543-44 (5th Cir. 2010) (citing Doe v.
MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008)).
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).
regards the moving defendants, in his Complaint as amended,
the plaintiff alleges that for 20 years he has chosen to
remain in a one-man cell. Beginning in 2009, 40 additional
beds were added to the dormitories. In 2012, the extended
lockdown cells in the Jaguar unit were converted to two-man
cells. The plaintiff was transferred to another unit and
refused to return in 2014, 2015, and again in 2017. Each time
the plaintiff was sent to administrative segregation at Camp
December 12, 2017, the plaintiff was moved from Camp J to
Camp C, and he was told to prepare to go to the Jaguar unit.
The plaintiff contacted a social worker in order to be put on
standard suicide watch and avoid being transferred to the
Jaguar unit. These actions were repeated on December 15,
2017, December 26, 2017, and January 3, 2018.
February 1, 2018, the plaintiff was sent to administrative
segregation in the CBB. On February 19, 2018, the plaintiff
was sprayed with a chemical agent after refusing to be double
bunked in his cell in administrative segregation. After the
plaintiff was sprayed with the chemical agent he was forced
to double bunk with another inmate. At some point prior to
being sprayed, the plaintiff spoke to defendant Smith who
declined defendant Reams' suggestion to spray the
plaintiff with a chemical agent and assured the plaintiff
that he would be seen by a social worker once he arrived at
plaintiff asserts defendant Warden Vannoy is legally
responsible for the overall operation of the penitentiary,
and that defendant Smith is the assistant warden over the
CBB. The plaintiff further asserts that being forced to