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Jones v. Blackmore

United States District Court, M.D. Louisiana

June 25, 2019

JONATHAN JONES (#581316)
v.
ZUCCARO BLACKMORE, ET AL.

          NOTICE

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.

         In 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.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

         This 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.

         The 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.[1]He seeks monetary and injunctive relief.

         The 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. at 25.

         Accordingly, 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.

         Turning 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).

         On a 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).

         In his 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.

         From 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 received.

         Around 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 ...


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