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Moler v. Baty

United States District Court, W.D. Louisiana, Lake Charles Division

September 23, 2019

ARTHUR FLEMMING MOLER REG. # 27271-171
v.
CLARA BATY, ET AL.

         SECTION P

          JAMES D. CAIN, JR. JUDGE

          REPORT AND RECOMMENDATION

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.

         Before the court is a civil rights complaint filed pursuant to Bivens v. Six Unknown Named Agents, 91 S.Ct. 1999 (1971), by plaintiff Arthur Flemming Moler, who is proceeding pro se and in forma pauperis in this matter. Moler is an inmate in the custody of the Bureau of Prisons and is currently incarcerated at the Federal Correctional Institute in Forrest City, Arkansas (“FCI-FC”). However, his claims relate to events that occurred while he was at the Federal Correctional Institute at Oakdale, Louisiana (“FCIO”).

         This matter has been referred to the undersigned for review, report, and recommendation in accordance with 28 U.S.C. § 636 and the standing orders of this court. For reasons stated below, IT IS RECOMMENDED that the matter be DENIED and DISMISSED WITH PREJUDICE as frivolous and for failure to state a claim on which relief can be granted, under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).

         I. Background

         Plaintiff arrived at FCIO on or about March 24, 2018, with grievances regarding matters that occurred at his previous location. Doc. 6-1, p. 3. The staff members from his unit refused to take his grievances, did not provide enough grievance forms or the required staff verifications for grievances and rejected grievances without independent investigation. Id.

         He also alleges that during his time at FCIO, several of the named defendants used discriminatory language, telling inmates “get with their own kind, ” and when someone new arrived, telling them the inmates to “get where they fit.” Id. at p. 5. When plaintiff was handed over to a black guard to go to the SHU, he was told, “How do you like that for Affirmative Action?” Id.

         The gravamen of plaintiff's complaint centers around his being placed in the SHU from July 16, 2018, until his transfer out of FCI-FC on September 27, 2018. Plaintiff claims that he became aware of “intentional fraud of unit staff working only 30-35 hours of their 40-hour weekly schedules.” Id. at p. 11. He alleges when the guards realized that he had been noting this, on July 16, 2018, at 8:00 a.m., he was given a “299 shot” for allegedly being out of bounds the day before. Id. He contends that there was no investigation conducted into this alleged infraction and on July 16, 2018, a UDC hearing was held, pursuant to which plaintiff was sanctioned and sent to SHU. Plaintiff argues that he was not given the twenty-four-hour notice prior to a hearing, as required by law. Id. at p. 9. Plaintiff states that he did have a prison representative but also claims she was never provided a copy of the charges and was, therefore, unprepared for the hearing. Id. at p. 12. Finally, plaintiff claims that, following his hearing and sanctions, he was given a custodial classification, a “Management Variable ‘MGTV, '” that he did not deserve. Id. at pp. 7-8. In summary, plaintiff argues that because procedures were not followed with respect to the hearing, his Due Process rights were violated and that all actions were taken in retaliation for plaintiff's discovering, and reporting, of the “theft of government funds, ” by the FCIO staff.

         II. Law & Analysis

         A. Frivolity Review

         Moler has been granted leave to proceed in forma pauperis in this matter. Accordingly, his complaint is subject to screening under 28 U.S.C. § 1915(e)(2), which provides for sua sponte dismissal of the complaint or any portion thereof if the court determines that it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

         A complaint is frivolous if it lacks an arguable basis in law or fact. Gonzalez v. Wyatt, 157 F.3d 1016, 1019 (5th Cir. 1998). A complaint fails to state a claim upon which relief may be granted if it is clear the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief. Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215 (5th Cir. 1998). When determining whether a complaint is frivolous or fails to state a claim upon which relief may be granted, the court must accept plaintiff's allegations as true. Horton v. Cockrell, 70 F.3d 397, 400 (5th Cir. 1995) (frivolity); Bradley v. Puckett, 157 F.3d at 1025 (failure to state a claim).

         B. ...


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