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Galtogbah v. Blanchard

United States District Court, W.D. Louisiana, Alexandria Division

September 25, 2019

TOYLAWUD TON TON GALTOGBAH, Plaintiff
v.
ASST. WARDEN BLANCHARD, ET AL., Defendants

          DRELL JUDGE

          REPORT AND RECOMMENDATION

          JOSEPH H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE.

         Before the Court is a Complaint and Amended Complaint (Docs. 1, 8) under Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics[1] filed by pro se Plaintiff Toylawud Ton Ton Galtogbah (“Galtogbah”). Galtogbah is an immigration detainee in the custody of the Department of Homeland Security/U.S. Immigration and Customs Enforcement (“DHS/ICE”). He is being detained at the Adams County Correctional Center in Washington, Mississippi. Galtogbah complains that he was improperly administered an injection by two nurses against his will while he was incarcerated at the LaSalle Detention Facility (“LDF”) in Jena, Louisiana.

         Because Bivens liability does not extend to privately-operated prisons or their employees, Galtogbah's Complaint and Amended Complaint (Docs. 1, 8) should be DENIED and DISMISSED WITH PREJUDICE.

         I. Background

         Galtogbah alleges that, on March 29, 2017, after returning from court, Nurses Nowell and Harris asked him to “take this shot” to calm him down. (Doc. 1, pp. 1-2). Galtogbah told the nurses “no” because he had never had the medication before and did not know how he would react. (Doc. 1, p. 2). Galtogbah alleges that officers held him down so Nurses Nowell and Harris could administer the injection. (Doc. 1, p. 2). Galtogbah further alleges that officers sprayed him with pepper spray. (Doc. 1, p. 2). Galtogbah claims that he later learned that the injection administered was “illegal.” (Doc. 1, p. 3).

         II. Law and Analysis

         A. Galtogbah's Complaint is subject to screening under §§ 1915(e)(2) and 1915A.

         Galtogbah is a prisoner who has been allowed to proceed in forma pauperis. As a prisoner seeking redress from an officer or employee of a governmental entity, Galtogbah's Complaint (Docs. 1, 8) is subject to preliminary screening pursuant to 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998) (per curiam). Because he is proceeding in forma pauperis, Galtogbah's Complaint (Docs. 1, 8) is also subject to screening under § 1915(e)(2). Both § 1915(e)(2)(B) and § 1915A(b) provide for sua sponte dismissal of the complaint, or any portion thereof, if the Court finds it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief.

         A complaint is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Id. at 327. A complaint fails to state a claim upon which relief may be granted when it fails to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009).

         B. Galtogbah cannot state a claim against LDF Defendants under Bivens.

         A civil rights lawsuit asserting claims of constitutional violations against federal government actors must be brought under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). “A Bivens action and a § 1983 suit represent coextensive proceedings; the ‘only difference' being that the former involves an action against federal actors and the latter against state actors.” Doe v. Neveleff, 11-CV-907, 2013 WL 489442, at *3 (W.D. Tex. Feb. 8, 2013), report and recommendation adopted, 2013 WL 12098684 (W.D. Tex. Mar. 12, 2013) (citing Izen v. Catalina, 398 F.3d 363, 367 n. 3 (5th Cir.) (per curiam), cert. denied, 547 U.S. 1111 (2006).

         A federal official may only be sued in a Bivens action in his individual capacity. Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1294 n. 12 (5th Cir. 1994). Additionally, the United States is not vicariously liable for constitutional torts committed by its officials because the United States has not waived sovereign immunity for such actions. Brown v. United States, 653 F.2d 196, 199 (5th Cir. 1981).

         Galtogbah names as Defendants LDF Warden Cole, LDF Assistant Warden Blanchard, Major Bruce Spence, and Nurses Nowell and Harris. (Doc. 8, p. 3). LDF houses immigration detainees, which “‘is a fundamental sovereign attribute exercised exclusively by the legislative and executive branches of the United States government.'” Doe v. Neveleff, 11-CV-907, 2013 WL 489442, at *13 (W.D. Tex. Feb. 8, 2013), report and recommendation adopted, 2013 WL 12098684 (W.D. Tex. Mar. 12, 2013) (quoting Medina v. O'Neill, 589 F.Supp. 1028, 1038 (S.D. Tex. 1984)). ...


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