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Etheridge v. Tanner

United States District Court, E.D. Louisiana

September 19, 2019

SHAROD STEPHEN ETHERIDGE
v.
ROBERT TANNER, ET AL.

         SECTION: “T” (1)

          REPORT AND RECOMMENDATION

          JANIS VAN MEERVELD UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Sharod Stephen Etheridge, a Louisiana state prisoner, filed this pro se federal civil action pursuant to 42 U.S.C. § 1983. He sued numerous prison officials, some of whom are only partially identified. Specifically, he listed the following defendants in his complaint: Warden Robert Tanner; Warden Billy Anderson; Warden Beverly Kelly; Sergeant Jeffrey Rogers; Floyd Brooks; Colonel Crawford; Colonel Harrell; Sergeant J. Tynes; Sergeant Magee; Lieutenant Dillon;[1] “Herbut”; “Sale”; “Nick”; “Waskom”; “Phillup”; “Bowens”; and “Sistrunk.” Plaintiff indicated that the defendants were being sued in both their official and individual capacities.[2]

         In an attempt to clarify plaintiff's claims, the Court held a Spears hearing on May 3, 2019. See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). “[T]he Spears procedure affords the plaintiff an opportunity to verbalize his complaints, in a manner of communication more comfortable to many prisoners.” Davis v. Scott, 157 F.3d 1003, 1005-06 (5th Cir. 1998). The United States Fifth Circuit Court of Appeals has observed that a Spears hearing is in the nature of a Fed.R.Civ.P. 12(e) motion for more definite statement. Eason v. Holt, 73 F.3d 600, 602 (5th Cir. 1996). Spears hearing testimony becomes a part of the total filing by the pro se applicant. Id.

         Despite the Spears hearing, many of plaintiff's claims remained vague. Therefore, to better understand the context of his allegations and claims, the Court took the further step of ordering his records from the Elayn Hunt Correctional Center (“EHCC”) and the Rayburn Correctional Center (“RCC”), the two facilities he referenced in his complaint and Spears hearing testimony. Those records, which were also provided to plaintiff for his use in this proceeding, have been filed into this federal record.[3]

         Based on plaintiff's complaint, his Spears hearing testimony, and the prison records, the Court finds that he is making the following allegations in this lawsuit:

         After sentencing in his state criminal trial, plaintiff was transferred to EHCC in St. Gabriel, Louisiana. While there, he was placed in disciplinary segregation based on an accusation that he intentionally caused a toilet to overflow, and he was kept in segregation too long. While in segregation, he was denied food, harassed, and denied a shower after having urine and feces thrown on him. Also while at EHCC, he was placed on the medication Vistaril. He felt that was improper, and the medication was eventually discontinued.

         Plaintiff was then transferred to RCC in Angie, Louisiana, on May 9, 2017.[4] At the Spears hearing, plaintiff identified defendant “Sale” as the officer who transported him from EHCC to RCC. During the transfer, Sale kept plaintiff in handcuffs that were too tight and gave him shoes that had been sprayed with mace. Plaintiff also testified that he encountered defendant “Nick” during that first night at RCC. “Nick” was disrespectful and handcuffed plaintiff in a painful manner.

         At RCC, plaintiff was confined on suicide watch from May through August of 2017. The conditions he endured during that period were unnecessarily punitive.[5]

         From “sometime in May of 2017 up until about the 2nd week of December 2017 certain staff/guards began a horrifying pattern of physical abuse and sheer torment of Plaintiff during his stay on lockdown.”[6] Specifically: (1) Sergeant J. Tynes started a rumor that plaintiff was a “rapist.”[7] (2) Sergeant Tynes also “physically slammed [plaintiff's] body to the floor while [he] was in handcuff(s) and leg(s) restraints at one point.”[8] (3) Sergeant Magee grabbed plaintiff's shackles “and yanked them in an upward motions causing [him] to fall and painfully injure [his] head and back area.”[9] (4) Sergeant Jeffrey Rogers headbutted plaintiff, twisted his shoulders, slammed his body to the ground, and applied pressure to his ribs, chest, and back.[10] (5) Lieutenant Dillon sprayed plaintiff with a chemical agent.[11] (6) He was falsely charged with disciplinary infractions and not afforded an opportunity to refute the charges.[12] (7) At the Spears hearing, plaintiff testified that he was slammed to the floor by defendant “Waskom.”[13]

         At the Spears hearing, plaintiff testified that Floyd Brooks was an RCC social worker. Brooks would ask plaintiff questions and then use the information gained to continue his placement on suicide watch.

         I. Screening Standards

         Plaintiff filed this federal civil action in forma pauperis.[14] Concerning such actions, federal law provides:

Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that ... the action …
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2)(B).

         In addition, because plaintiff is incarcerated, he is also subject to the screening provisions of 28 U.S.C. § 1915A. That statute mandates that federal courts “review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Regarding such lawsuits, federal law similarly requires:

         On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint -

(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A(b).

         A complaint is frivolous “if it lacks an arguable basis in law or fact.” Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994). In determining whether a claim is frivolous, the Court has “not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989); Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994).

         A complaint fails to state a claim on which relief may be granted when the plaintiff does not “plead enough facts to state a claim to relief that is plausible on its face. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (citation, footnote, and quotation marks omitted). The United States Supreme Court has explained:

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. The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully. 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.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations and quotation marks omitted).

         II. Plaintiff's Claims

         Plaintiff filed this lawsuit pursuant to 42 U.S.C. § 1983. In pertinent part, that statute provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ….

42 U.S.C. § 1983.

         Although broadly construing plaintiff's complaint, [15] the undersigned recommends that the complaint be dismissed for the following reasons as frivolous, for failing to state a claim on which relief may be granted, and/or for seeking monetary relief from a defendant who is immune from such relief.

         A. Time-Barred Claims

         “Where it is clear from the face of a complaint filed in forma pauperis that the claims asserted are barred by the applicable statute of limitations, those claims are properly dismissed as frivolous. Courts may raise the defense of limitations sua sponte in a § 1915 action.” Abston v. Federal Bureau of Prisons, 689 Fed.Appx. 304, 304 (5th Cir. 2017) (citation, quotation marks, and brackets omitted). That said, “[b]efore entering a sua sponte dismissal on limitations grounds, a court must accord the parties fair notice and an opportunity to present their positions.” Juarez v. Anderson, 598 Fed.Appx. 297, 297 (5th Cir. 2015) (quotation marks omitted). By virtue of this Report and Recommendation, plaintiff is hereby placed on notice that the issue of prescription is being raised with respect to some of his claims for the following reasons and that he has the opportunity to respond in an objection to the United States District Judge. See Alexander v. Trump, 753 Fed.Appx. 201, 208 (5th Cir. 2018) (noting that issuance of a Report and Recommendation adequately provides a plaintiff with notice of a Court's sua sponte invocation of a defense and an opportunity to respond), cert. denied, 139 S.Ct. 1200 (2019); Webster v. United States, Civ. Action No. 6:19-CV-00196, 2019 WL 2511167, at *1 (E.D. Tex. June 17, 2019).

The United States Fifth Circuit Court of Appeals has held:
The statute of limitations for Section 1983 claims is “the forum state's personal-injury limitations period, ” which in Louisiana is one year. Jacobsen v. Osborne, 133 F.3d 315, 319 (5th Cir. 1998). “In applying the forum state's statute of limitations, the federal court should also give effect to any applicable tolling provisions.” Gartrell v. Gaylor, 981 F.2d 254, 257 (5th Cir. 1993). However, federal law governs when a Section 1983 claim accrues. Jacobsen, 133 F.3d at 319. This court has stated that “[u]nder federal law, a cause of action accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action.” Gartrell, 981 F.2d at 257. As a result, the limitations period begins “when the ...

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