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Evans v. Parish

United States District Court, E.D. Louisiana

May 6, 2019

SYLVESTER LARNELL EVANS, JR., Plaintiff,
v.
JEFFERSON PARISH, LOUISIANA; Defendant.

          SUSIE MORGAN, JUDGE

          REPORT AND RECOMMENDATION

          \JANIS VAN MEERVELD, UNITED STATES MAGISTRATE JUDGE

         Pro se plaintiff Sylvester Larnell Evans, Jr., AKA Church, filed the above-captioned matter in this Court in which he asserts a claim against Jefferson Parish for “several breaches of constitutional and state law.”

         On December 28, 2018, the Court ordered Mr. Evans to show cause by Monday, January 28, 2019 as to why this case should not be summarily dismissed under 28 U.S.C. § 1915(e)(2)(B)(i-iii) for failing to state a claim on which relief may be granted. Mr. Evans responded on January 31, 2019.

         28 U.S.C. § 1915(e)(2)(B) provides for summary dismissal sua sponte, should the Court determine that a case is frivolous. Section 1915(e)(2)(B) provides in pertinent part as follows:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that -
(B) the action or appeal -
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2)(B)(i)-(iii) (emphasis added). A claim is “frivolous” where it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). “A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges violation of a legal interest which clearly does not exist.” Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009) (per curium) (quoting Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999). “A complaint lacks an arguable basis in fact when ‘the facts alleged are fantastic or delusional scenarios or the legal theory upon which a complaint relies is indisputably meritless.'” Id. (quoting Harris, 198 F.3d at 156).

         “To determine if a complaint fails to state a claim” under 28 U.S.C. § 1915(e)(2)(B)(ii), the court applies the same standard “applicable to dismissals made pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Id. In ruling on a 12(b)(6) motion, “[t]he court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks omitted) Further, “[t]o survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead enough facts to state a claim to relief that is plausible on its face. Factual allegations must be enough to raise a right to relief above the speculative level.” Id. (citation, footnote, and quotation marks omitted). On that point, the United States Supreme Court has explained:

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. The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a ...

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