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Graves v. Cain

United States District Court, M.D. Louisiana

September 10, 2019

RONALD GRAVES (#356003)
v.
BURL CAIN, 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 defendants Secretary James LeBlanc, Lt. Derek Jones, Col. Wilford Cazelot, and Asst. Warden Ray Vittorio (R. Doc. 43). The motion is opposed. See R. Docs. 44 and 49.

         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 former warden Burl Cain, Secretary James LeBlanc, Lt. Derek Jones, Col. Wilford Cazelot, and Asst. Warden Ray Vittorio complaining that his constitutional rights were violated due to the defendants' failure to protect him from harm.[1]

         The moving defendants first seek dismissal on jurisdictional grounds, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, of the plaintiff's claim against them in their official capacities. In this regard, the defendants are 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 the defendants in their official capacities, for monetary damages, are subject to dismissal.[2] In contrast, the plaintiff's claims for monetary damages asserted against the defendants in their individual capacities 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. 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, the defendants next assert, 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, [3] the plaintiff alleges that on July 4, 2015 he was attacked by inmate Ricky Gary. The dormitory was overcrowded and hot, and the inmates were unable to feel any air from the fan. Inmate Gary accused the plaintiff of turning the fan and poured a hot liquid substance on the plaintiff. Inmate Gary then beat the plaintiff in the face, head, and upper body with locks attached to a cord. The plaintiff ran to the dormitory door and banged on the door for help. Defendant Lt. Jones looked at him through the door but did not open the door and intervene in the ongoing attack. As a result of the attack by inmate Gary, the plaintiff endured months of painful scrubbing of his face in order to promote new skin growth and suffers from permanent hearing loss.

         Due to a policy implemented by former warden Burl Cain, security officers were removed from the dormitories and the inmates were double bunked. No. provisions were made for security to be alerted in the case of an emergency. Due to this policy, approximately 96 inmates are locked in the dormitory at night with an officer making rounds only once every hour. Defendant Secretary LeBlanc was aware of former warden Cain's policy and the ongoing security concerns due to overcrowding and had the authority to stop implementation of the policy but did not.

         Prior to the attack, the plaintiff informed defendant Asst. Warden Vittorio that inmate Gary had threatened his life if he touched the fan. Before walking away, defendant Vittorio responded in a sarcastic manner, “Now you want an air conditioner, get it like you live.” “Get it like you live” means that the inmate is on his own and shouldn't bother the official making the statement. When defendants Col. Cazelot and Lt. Jones were making rounds the plaintiff asked these officers if anything would be done about the fan situation and informed them that he didn't want “to get stuck out behind this Gary Guy because of a fan.” The plaintiff also told defendants Cazelot and Jones that he had already ...


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