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
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, complaining that his
constitutional rights were violated during treatment provided
when the plaintiff choked on food. He prays for monetary,
declaratory, and injunctive relief.
to 28 U.S.C. §§ 1915(e) and 1915A, this Court is
authorized to dismiss an action or claim brought by a
prisoner who is proceeding in forma pauperis or is
asserting a claim against a governmental entity or an officer
or employee of a governmental entity if satisfied that the
action or claim is frivolous, malicious or fails to state a
claim upon which relief may be granted. An action or claim is
properly dismissed as frivolous if the claim lacks an
arguable basis either in fact or in law. Denton v.
Hernandez, 504 U.S. 25, 31 (1992), citing Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Hicks v.
Garner, 69 F.3d 22, 24-25 (5th Cir. 1995).
is factually frivolous if the alleged facts are
“clearly baseless, a category encompassing allegations
that are ‘fanciful,' ‘fantastic,' and
‘delusional.'” Id. at 32-33. A claim
has no arguable basis in law if it is based upon an
indisputably meritless legal theory, “such as if the
complaint alleges the violation of a legal interest which
clearly does not exist.” Davis v. Scott, 157
F.3d 1003, 1005 (5th Cir. 1998). The law accords judges not
only the authority to dismiss a claim which is based on an
indisputably meritless legal theory, but also the unusual
power to pierce the veil of the factual allegations.
Denton v. Hernandez, supra, 504 U.S. at 32.
facts which are merely improbable or strange, however, are
not frivolous for purposes of § 1915. Id. at
33; Ancar v. Sara Plasma, Inc., 964 F.2d 465, 468
(5th Cir. 1992). A § 1915 dismissal may be made any
time, before or after service or process and before or after
an answer is filed, if the court determines that the action
“is frivolous or malicious; fails to state a claim on
which relief may be granted; or seeks monetary relief against
a defendant who is immune from such relief.”
See 28 U.S.C. § 1915(e)(2) and Green v.
McKaskle, 788 F.2d 1116, 1999 (5th Cir. 1986).
plaintiff alleges the following in his Complaint: On November
5, 2017, the plaintiff was eating in his cell when he began
to choke and subsequently passed out. Treatment provided at
LSP resulted in damage to the plaintiff's vocal chords
and thyroid. The petitioner filed several grievances
regarding the care provided which were rejected. One
grievance was finally accepted and was denied at the First
and Second Steps.
plaintiff's allegations fail to state a claim cognizable
in this Court. First, § 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. Accordingly, the plaintiff's § 1983 claims
asserted against the defendants in their official capacities
for monetary damages are subject to dismissal. In contrast,
the plaintiff's claim for monetary damages and
declaratory and injunctive relief asserted against the
defendants in their individual capacities remain viable
because such claims are not treated as a suit against the
state. Of course, the plaintiff must prove a deprivation of a
constitutional right to obtain any relief.
to the plaintiff's claims regarding a violation of his
due process rights in connection with his administrative
proceedings, an inmate does not have a constitutional right
to have his prison disciplinary or administrative proceedings
properly investigated, handled, or favorably resolved.
Mahogany v. Miller, 252 Fed.Appx. 593, 595 (5th Cir.
2007), and there is no procedural due process right inherent
in such a claim. As stated by the United States Court of
Appeal for the Fifth Circuit in Geiger v. Jowers,
404 F.3d 371 (5th Cir. 2005) (in the context of the handling
of an administrative grievance):
Insofar as [the plaintiff] seeks relief regarding an alleged
violation of his due process rights resulting from the prison
grievance procedures, the district court did not err in
dismissing his claim as frivolous…[The plaintiff] does
not have a federally protected liberty interest in having
these grievances resolved to his satisfaction. As he relies
on legally nonexistent interest, any alleged due process
violation arising from the alleged failure to investigate his
grievances is indisputably meritless. Id. at 373-74.
the failure of prison officials to follow prison rules or
regulations does not amount to a violation of the
plaintiff's constitutional rights. Jackson v.
Cain, 864 F.3d 1235, 1252 (5th Cir. 1989). Nor does this
Court sit as some form of an appellate court to review errors
made by state tribunals that do not affect an inmate's
constitutional rights. See, e.g., Coleman v. Director,
TDCJ-CID, 2009 WL 56947, *2 (E.D. Tex. Jan. 7, 2009)
(noting, in the context of an inmate's habeas corpus
proceeding arising out of a prison ...