United States District Court, W.D. Louisiana, Lake Charles Division
ARTHUR FLEMMING MOLER REG. # 27271-171
CLARA BATY, ET AL.
D. CAIN, JR. JUDGE
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.
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”).
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).
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.
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?”
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.
Law & Analysis
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. §
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).