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LaVergne v. Stutes

United States District Court, M.D. Louisiana

September 10, 2019

BRANDON S. LAVERGNE # 424229
v.
KEITH STUTES, ET AL. BRANDON S. LAVERGNE # 424229 V, KEITH STUTES, 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

         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 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 injunctive relief.

         Pursuant 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).

         A claim 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).

         A § 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.

         In his 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 sentence.[1]

         Defendant 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.

         The 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.

         In June 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.

         In 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. ...


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