United States District Court, W.D. Louisiana, Monroe Division
REPORT AND RECOMMENDATION
L. HAYES, UNITED STATES MAGISTRATE JUDGE
Willie Dominick, III, a prisoner at Lincoln Parish Detention
Center proceeding pro se and in forma pauperis, filed the
instant proceeding on April 18, 2019, under 42 U.S.C. §
1983. He names the following defendants: Sheriff Mike Stone,
Police Jury, City Officer Ashcraft, and Officer Jennifer
Winzer.[1" name="FN1" id=
alleges that Officers Ashcraft and Winzer arrested him in
Ruston, Louisiana, without probable cause, on approximately
February 21, 2019, for possessing marijuana, possessing
marijuana with the intent to distribute it, possessing
ecstasy, possessing drug paraphernalia, and reckless
operation. [doc. # 1, p. 1]. Plaintiff was sleeping in his
parked vehicle when the officers approached, pulled him out
of the vehicle, and searched the vehicle without probable
cause. [doc. #s 1, p. 1; 10, p. 2]. The officers also
searched the vehicle prior to arresting Plaintiff, while he
was still sleeping. [doc. # 10, p. 2].
La. Code Crim. Pro. art. 230.1(A), Plaintiff alleges that
fifty-five days elapsed, from the day of his arrest, before
Defendants brought him to a judge for appointment of counsel.
[doc. # 1, p. 1]. That said, Plaintiff also suggests that a
judge appointed counsel earlier, but that Plaintiff was only
able to speak with counsel fifty-five days after his arrest.
[doc. # 10, p. 2].
seeks punitive damages, "normal" damages, and $500,
000.00 to compensate him for his mental anguish. [doc. #s 1,
p. 1; 4, p. 3].
is a prisoner who has been permitted to proceed in forma
pauperis. As a prisoner seeking redress from an
officer or employee of a governmental entity, his complaint
is subject to preliminary screening pursuant to 28 U.S.C.
§ 1915A. See Martin v. Scott, 156 F.3d
578, 579-80 (5th Cir. 1998) (per curiam). Because he
is proceeding in forma pauperis, his Complaint is also
subject to screening under § 1915(e)(2). Both §
1915(e)(2)(B) and § 1915A(b) provide for sua
sponte dismissal of the complaint, or any portion
thereof, if the Court finds it is frivolous or malicious, if
it fails to state a claim on which relief may be granted, or
if it seeks monetary relief against a defendant who is immune
from such relief.
complaint is frivolous when it “lacks an arguable basis
either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319');">490 U.S. 319, 325 (1989). A claim lacks an
arguable basis in law when it is “based on an
indisputably meritless legal theory.” Id. at
327. Courts are also afforded the unusual power to pierce the
veil of the factual allegations and dismiss those claims
whose factual contentions are clearly baseless. Id.
complaint fails to state a claim on which relief may be
granted when it fails to plead “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 44');">550 U.S. 544, 570
(2007); accord Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). A claim is facially plausible when it contains
sufficient factual content for the court “to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 570). Plausibility does
not equate to possibility or probability; it lies somewhere
in between. Id. Plausibility simply calls for enough
factual allegations to raise a reasonable expectation that
discovery will reveal evidence to support the elements of the
claim. Twombly, 550 U.S. at 556.
whether a complaint states a plausible claim for relief is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, supra. A well-pled complaint
may proceed even if it strikes the court that actual proof of
the asserted facts is improbable and that recovery is
unlikely. Twombly, supra.
a complaint fails to state a claim on which relief can be
granted if it appears that no relief could be granted under
any set of facts that could be proven consistent with the
allegations of the complaint. In making this determination,
the court must assume that all of the plaintiff's factual
allegations are true. Bradley v. Puckett, 157 F.3d
1022, 1025 (5th Cir. 1998). However, the same presumption
does not extend to legal conclusions. Iqbal, supra.
A pleading comprised of “labels and conclusions”
or “a formulaic recitation of the elements of a cause
of action” does not satisfy Rule 8. Id.
“[P]laintiffs must allege facts that support the
elements of the cause of action in order to make out a valid
claim.” City of Clinton, Ark. v. Pilgrim's
Pride Corp, 148');">632 F.3d 148, 152-53 (5th Cir. 2010). Courts
are “not free to speculate that the plaintiff
‘might' be able to state a claim if given yet
another opportunity to add more facts to the
complaint.” Macias v. Raul A. (Unknown) Badge No.
153, 4');">23 F.3d 94, 97 (5th Cir. 1994).
hearing need not be conducted for every pro se complaint.
Wilson v. Barrientos, 480');">926 F.2d 480, 483 n.4 (5th
Cir. 1991). A district court may dismiss a prisoner's
civil rights complaint as frivolous based upon the complaint
and exhibits alone. Green v. McKaskle, 788 F.2d
1116, 1120 (5th Cir. 1986).
state a section 1983 claim, a plaintiff must (1) allege a
violation of a right secured by the Constitution or laws of
the United States and (2) demonstrate that the alleged
deprivation was committed by a person acting under color of
state law.” Whitley v. Hanna, 1');">726 F.3d 631,
638 (5th Cir. 2013) (internal quotation marks omitted).
Consistent with the standard above, a “[S]ection 1983
complaint must state specific facts, not simply legal and
constitutional conclusions.” Fee v. Herndon,
4');">900 F.2d 804, 807 (5th Cir. 1990).
Delay in Appointing Counsel
La. Code Crim. Pro. art. 230.1(A), Plaintiff alleges that
fifty-five days elapsed, from the day of his arrest, before a
judge appointed counsel. [doc. # 1, p. 1]. However, Plaintiff
also suggests that a judge appointed counsel earlier, but
Plaintiff was only able to speak with counsel fifty-five days
after his arrest. [doc. # 10, p. 2]. Plaintiff faults only
Sheriff Mike Stone, alleging that Stone knew or should have
known that all pre-trial detainees should be brought before a
judge to be appointed counsel within 72 hours. [doc. # 1, pp.
La. Code Crim. Pro. art. 230.1(A), “The sheriff or law
enforcement officer having custody of an arrested person
shall bring him promptly, and in any case within seventy-two
hours from the time of the arrest, before a judge for the
purpose of appointment of counsel.” “If the
arrested person is not brought before a judge in accordance
with the ...