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 to Dismiss filed on
behalf of defendant Maj. Zuccaro Blackmore (R. Doc. 12). The
motion is not opposed.
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 Maj. Zuccaro Blackmore, Col. Hunt, Lt. Davis,
Sgt. Reed, and Sgt. Long complaining that his constitutional
rights were violated due to deliberate indifference to his
serious medical needs and retaliation.He seeks monetary
and injunctive relief.
moving defendant first seeks dismissal on jurisdictional
grounds, pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure, of the plaintiff's claim against him in
his official capacity. In this regard, the defendant
Blackmore is 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.
the plaintiff's claims asserted against defendant
Blackmore in his official capacity, for monetary damages, are
subject to dismissal. In contrast, the plaintiff's claims
for monetary damages asserted against defendant Blackmore in
his individual capacity 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 claim for injunctive relief also
remains viable. 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,
defendant Blackmore next asserts, 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, the plaintiff alleges the following
with regards to defendant Blackmore: On March 19, 2018 the
plaintiff was sent to administrative segregation between 4:00
p.m. and 5:00 p.m. When the plaintiff's glucose level was
checked in the treatment center, he was given extra units of
insulin due to his level being high. Upon return to the unit
the plaintiff began requesting a food tray because the last
meal had already been served prior to his return from the
treatment center. The plaintiff informed the officers that he
had a tray on his locker box that he had brought with him to
administrative segregation that he could eat if they brought
the tray to him. No. officer brought the tray requested by
the plaintiff or a tray from the last meal served.
5:30 p.m. until 10:30 p.m. the plaintiff pleaded with Sgt.
Long and Sgt. Reed for something to eat since he had just
been administered his insulin. During the same time span he
talked with Lt. Davis, defendant Maj. Blackmore, and Col.
Hunt, who all promised him food which the plaintiff never
12:00 a.m., the plaintiff awoke to Maj. Bernard and an EMT
attempting to help him sit up. When the plaintiff's
glucose level was checked, it was 53. Even after the EMT
ordered that the plaintiff be given a ...