United States District Court, M.D. Louisiana
BRANDON S. LAVERGNE # 424229
KEITH STUTES, ET AL. BRANDON S. LAVERGNE # 424229 V, KEITH STUTES, ET AL.
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 numerous defendants complaining that his constitutional
rights were violated due to the imposition of an illegal
sentence, and due to his classification resulting from the
illegal sentence. He prays for monetary damages and
to 28 U.S.C. § 1915A, this Court is authorized to
dismiss an action or claim brought by a prisoner who 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.
Pleaded 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).
§ 1915A dismissal may be made any time, but ideally as
soon as practicable after docketing. In the instant matter,
this case was recently reassigned to the undersigned
Magistrate Judge in June of 2019. Accordingly, the Magistrate
Judge now reviews the plaintiff's Complaint, as amended,
pursuant § 1915A.
Complaint, as amended, the plaintiff alleges the following:
On August 17, 2012, pursuant to a plea agreement, the
plaintiff was sentenced to life in prison to be served in
solitary confinement at Louisiana State Penitentiary
(“LSP”). Defendants Doga, LeJeune, Stutes,
Harson, Clause, Landry, Haney, and Hamilton were all involved
in some aspect of the plea negotiations and resulting
LeBlanc chose to carry out the illegal sentence, and
defendant Cain implemented the plaintiff's sentence at
LSP. While housed in solitary confinement, the plaintiff did
not have direct access to the law library and had limited
access to inmate counsel substitute and law books. As a
result, two of the plaintiff's criminal appeals were
rejected due to failure to comply with the state appellate
court's rules, and the plaintiff filed numerous suits in
federal which were dismissed and resulted in the plaintiff
being unable to file additional suits without prepayment of
fees. Defendants LeBlanc and Cain were responsible for
keeping the death row library properly updated and having
inmate counsel substitute being properly trained in both
criminal and civil law. The plaintiff filed a grievance
regarding these issues and wrote letters to defendants
LeBlanc and Cain, but no corrective action was ever taken.
plaintiff attempted to seek relief in state court through the
judicial review process which required him to file for review
in the 19th Judicial District Court. Defendant
Welborn charged the plaintiff several hundred dollars for
“building fund fees” and processing fees. These
fees were not disclosed to the plaintiff prior to filing and
are not charged to the general public in the same manner. The
plaintiff refused to pay these fees and the court refused to
transfer his file to the state appellate court. However, the
plaintiff was able to seek review in the state appellate
court and the Louisiana Supreme Court.
of 2017, the plaintiff was moved from solitary confinement
into a dorm in which the inmates were double bunked with
limited security officers, resulting in inmates smoking
tobacco and using drugs with no intervention from security.
Due to the overcrowding, the dorms were filthy and contained
strong odors. The double bunking and reduction of security
policies were implemented by defendant Cain, and continued by
defendant Vannoy. Defendant Benjamin is the former head of
security and allowed the drug use and smoking to persist.
Defendant LeBlanc failed to control the population count as
required by statute. The plaintiff's first grievance
regarding these issues was ignored at the first and second
steps. The plaintiff's second grievance was exhausted.
September of 2018, the plaintiff learned that his biological
mother was dying. On October 15, 2018, the plaintiff
attempted to escape in order to visit his mother in person.
The plaintiff was caught and taken to “CCR.” The
plaintiff was not brought before the disciplinary board until
30 days later. The disciplinary board, consisting of
defendants Smith and Curtier, found the plaintiff guilty of
simple escape and sentenced him to “maximum death row
CCR.” The plaintiff is the only inmate out of over 100
in CCR with this particular sentence. ...