United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE.
the Court is the motion to dismiss of the nine named
Defendants herein, Colonel Mike Todd, Lieutenant Colonel
Kevin Luper, Lieutenant Jason Smith, CSM Waldo Jones, CSM
Brian Nichols, Sergeant Lloyd Spears, Deputy Warden Keith
Bickham, Warden Robert Tanner, and Secretary James LeBlanc.
(Rec. doc. 15). Plaintiff has filed no memorandum in
opposition to Defendants' motion. For the reasons that follow,
it is recommended that Defendants' motion be granted and
that Plaintiff's suit be dismissed.
is an inmate of the B.B. “Sixty” Rayburn
Correctional Center (“RCC”) in Angie, Louisiana,
who is serving a 40-year sentence for first-degree robbery
following his conviction by a jury in the Orleans Parish
Criminal District Court. Plaintiff's complaint in the
instant matter concerns two separate but related incidents at
RCC that will be addressed in chronological order. First,
Plaintiff alleges that on July 10, 2018, he ordered a media
device called a JP-5 Player from an outside vendor approved
by the Louisiana Department of Corrections for $80.00.
Unbeknownst to Plaintiff, the JP-5 Player allegedly arrived
at RCC on July 23, 2018 but was not given to him at that time
as he was then assigned to Level 1 Extended Lockdown, as will
be discussed more fully infra, where such devices
are not permitted as an incident of administrative
segregation. On October 24, 2018, Plaintiff states that he
was transferred to a less restrictive housing unit where such
devices are typically allowed. Plaintiff subsequently
corresponded with Deputy Warden Bickham, who forwarded that
correspondence to Colonel Todd, who later advised Plaintiff
that he would not be allowed to possess the device because he
had been housed in administrative segregation when the device
was received at RCC. Plaintiff was therefore asked to provide
an outside address that the JP-5 Player could be forwarded
to, absent which the device would be destroyed. On February
25, 2019, Plaintiff states that he confronted Bickham while
the latter was making rounds and that Bickham stated that the
withholding of the device was a form of punishment and that
Plaintiff would be well advised to curb his litigiousness if
he valued the privileges that are available to inmates at
RCC. Plaintiff states that he initiated an Administrative
Remedy Procedure (“ARP”) grievance with respect
to this occurrence and that grievance was pending at the time
that he authored his complaint. Plaintiff alleges that this
occurrence is but one instance in a pattern of mistreatment,
unfounded write-ups, and adverse actions to which he has been
subjected since November 4, 2016 along with limitations on
canteen access and his ability to purchase hygienic
necessities like deodorant.
second incident complained of by Lewis, he alleges that on
July 18, 2018, he was “written up” for aggravated
fighting for simply wrapping his arm in a towel to prevent
being bitten or scratched by another inmate, whereupon all of
his personal property was impounded by Lieutenant Johnson as
a prelude to being placed in administrative segregation.
Plaintiff states that he was found guilty of the prison rule
violation by Colonel Luper on July 20, 2018 and was sentenced
to 90 days in Level 1 Extended Lockdown. There, he was
provided only one towel, two sheets, and a blanket and had no
access to his personal property which included prescription
eyeglasses, a knee brace, and various legal materials, the
same being stored and sealed in boxes. Plaintiff states that
he “profusely” asked a number of RCC officials
about access to his personal property, to no avail.
Correspondence sent to Warden Tanner and Deputy Warden
Bickham was equally unavailing.
weekend before he was to be afforded an opportunity to
inventory his personal property, Plaintiff states that he
spotted the boxes containing his property in a storage closet
with the seals on them having been broken. Lewis indicates
that CSM Nichols ordered him out of his cell on August 11,
2018 to inventory his property which he initially refused to
do. However, under the threat of being sprayed with a
chemical agent, an unidentified major and Lieutenant Smith
restrained and escorted Lewis to the lobby where the boxes
containing his personal property were located by Sergeant
Spears. Despite his protestations, Plaintiff alleges that
Sergeants Spears, Nichols, and Jones proceeded to recklessly
rummage through his property while murmuring expletives and
homosexual monikers. Plaintiff was then led back to his cell
without any of his property, reportedly being told that if he
refused to sign for it, he would not receive it. Lewis states
that his property was scattered about in a random fashion,
some being in plastic bags, and he was told that it would be
sent to the mail room. Plaintiff states that he then filed an
ARP grievance in an attempt to obtain redress. That grievance
was responded to by Lieutenant Luper, who
“forged” a response despite video camera footage
to the contrary. Lieutenant Luper also allegedly relied upon
a statement from Lieutenant Smith that only Plaintiff's
“unauthorized” property had been sent to the
mailroom, notwithstanding the fact that his
“authorized” property (i.e., eyeglasses,
knee brace, legal materials, and books) remains unaccounted
for. At the second step of the grievance process, Plaintiff
indicates that Secretary LeBlanc similarly denied him relief.
Plaintiff states that he also corresponded with Warden Tanner
and Deputy Warden Bickham in an attempt to access his
authorized property and to be afforded a property inventory.
He claims there was no response to that correspondence, which
he says was referred to Colonel Todd, who has a penchant for
retaliating against him based on his past litigation history.
Lewis alleges that on five separate occasions, unidentified
members of the security staff approached him and demanded an
address to which his unauthorized property could be mailed at
his expense. Then, on October 2, 2018, Colonel Todd and
Lieutenant Mingo, equipped with a body camera, again asked
Lewis for a mailing address under the threat of destruction
of his property. That same day during mail call, Plaintiff
states that he received a letter from Deputy Warden Bickham
and Colonel Todd advising that his property would be
destroyed the following day. Plaintiff indicates the property
was, in fact, destroyed. For all of the foregoing, Lewis
seeks compensatory and punitive damages as well as
declaratory and injunctive relief.
Defendants now move for the dismissal of Plaintiff's
complaint under 28 U.S.C. §1915(e), 42 U.S.C.
§1997e(c)(1), and Rule 12(b)(1) and (6) of the Federal
Rules of Civil Procedure, advancing various arguments in
support thereof. First, the Defendants argue that
Plaintiff's §1983 claims against them in their
official capacity are barred by the Eleventh Amendment.
Defendants' argument is well-founded as it is axiomatic
that the Eleventh Amendment bars citizens' suits in
federal court against states, their political subdivisions,
and state officials acting in their official capacity.
Champagne v. Jefferson Parish Sheriff's
Office, 188 F.3d 312, 313-14 (5th Cir.
1999)(citing Voisin's Oyster House v. Guidry,
799 F.2d 183, 185 (5th Cir. 1986)). Because sovereign immunity
deprives a court of jurisdiction, the claims so barred are
appropriately dismissed without prejudice. Warnock v.
Pecos County, Texas, 88 F.3d 341, 343 (5th Cir. 1996);
Kervin v. City of New Orleans, No. 06-CV-3231, 2006
WL 2849861 at *2-4 (E.D. La. Sept. 28, 2006). In light of
these authorities, it will be recommended that
Plaintiff's §1983 claims against the nine named
Defendants in their official capacity be dismissed without
prejudice for want of jurisdiction.
to Plaintiff's §1983 claims against the Defendants
in their individual capacity, the first of the two incidents
complained of involved Plaintiff's ordering of an
electronic device that was not given to him because it
arrived at RCC on a date when he was in administrative
segregation, a customary practice for inmates there who are
so confined. See, e.g., Tauzier v.
LeBlanc, No. 09-CV-4471, 2010 WL 1731200 at *2 (E.D. La.
Apr. 15, 2010), adopted, 2010 WL 1731176 (E.D. La.
Apr. 28, 2010). In that regard, inmates like Lewis have no
constitutional right to visitation privileges, access to the
jail commissary, radio and television use, and the like.
Id. (citing Scheanette v. Dretke, 199
Fed.Appx. 336, 337 (5th Cir. 2006); Gonzalez
v. Johnson, 48 Fed.Appx. 103, 2002 WL 31016600 at *1
(5th Cir. 2002); Montana v. Commissioners Court, 659
F.2d 19, 23 (5th Cir. Unit A 1981), cert. denied,
455 U.S. 1026, 102 S.Ct. 1730 (1982). See also Newman v.
Alabama, 559 F.2d 283, 291 (5th Cir.), rev'd in
part on other grounds sub nom. Alabama v. Pugh,
438 U.S. 781, 98 S.Ct. 3057 (1977)(so long as the State
furnishes its prisoners with reasonably adequate food,
clothing, shelter, sanitation, medical care, and personal
safety, that ends its Eighth Amendment obligations)).
from an equal protection perspective, Plaintiff would need to
prove purposeful discrimination resulting in a discriminatory
effect among persons similarly situated. Muhammad v.
Lynaugh, 966 F.2d, 901, 903 (5th Cir. 1992).
In Muhammad, the Fifth Circuit found that a prisoner
housed in one prison unit was not “similarly
situated” to a prisoner housed in another unit and
because all inmates housed in the “Michael Unit”
were not permitted to possess tape players, the plaintiff
being no exception, there was no constitutional violation.
Id. See also Martin v. Scott, 156 F.3d 578, 580
(5th Cir. 1988), cert. denied, 527 U.S.
1041, 119 S.Ct. 2405 (1999)(inmates with different housing
classifications are not similarly situated); Woods v.
Collins, 68 F.3d 471, 1995 WL 581879 at *2 (5th Cir.
1995)(similarly situated inmates are those state prisoners
housed in transfer facilities, not all state prisoners
regardless of where they are housed). Here, although
Plaintiff complains that inmates housed in the less
restrictive housing unit that he was transferred to on
October 24, 2018 are allowed to possess JP-5 Players, he
identifies no such inmates like himself who were assigned to
Level 1 Extended Lockdown on the date that the device was
received at RCC, absent which no equal protection claim is
apparent. Clark v. Foti, 50 F.3d 1032, 1995 WL
136127 at * (5th Cir. 1995). To the extent that
Plaintiff's first claim can be characterized as one for
deprivation of property (i.e., the JP-5 Player) by a
state employee, such a deprivation, whether done negligently,
Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908
(1981), overruled on other grounds, Daniels v.
Williams, 474 U.S. 327, 330, 106 S.Ct. 662, 664 (1986),
or intentionally, Hudson v. Palmer, 468 U.S. 517,
104 S.Ct. 3104 (1984), is not actionable under §1983
when an adequate state-law remedy exists. Murphy v.
Collins, 26 F.3d 541, 543-44 (5th Cir. 1994); Hines
v. Booth, 841 F.2d 623, 624 (5th Cir. 1988). Louisiana
law provides such a remedy. See LSA-C.C. Art. 2315.
As respects any untoward comments that may have been directed
to Plaintiff by Deputy Warden Bickham, the law is clear that
verbal abuse or threatening language of a correctional
officer do not, even if true, amount to constitutional
violations. Harvey v. Stalder, 130 Fed.Appx. 654
(5th Cir. 2005); Wilson v. Budner, 976
F.2d 957, 958 (5th Cir. 1992). Otherwise, Plaintiff's
conclusory allegations of retaliatory mistreatment provide an
insufficient basis for liability under §1983. Irby
v. Cole, 278 Fed.Appx. 315, 316 (5th Cir.
second incident complained of by Plaintiff begins with his
being written up and adjudicated guilty of aggravated
fighting in a prison disciplinary proceeding. The Court does
not read Plaintiff's complaint as presenting a credible
challenge to validity of the disciplinary proceeding but even
if it could be, as Plaintiff does not allege that he lost any
“good time” credits as a result of the
adjudication in question, the sanctions to which he was
subjected, which are merely changes in the conditions of his
confinement, do not implicate due process concerns as they do
not pose an atypical or significant hardship beyond the
ordinary incidents of prison life. Richard v.
Quarterman, No. 07-CV-2893, 2007 WL 2688442 at *2 (S.D.
Tex. Sept. 10, 2007)(quoting Madison v. Parker, 104
F.3d 765, 768 (5th Cir. 1997)). As a consequence
of being placed in administrative segregation following the
prison rule violation, Plaintiff's personal property was
initially impounded but was subsequently rummaged through and
partially lost and/or destroyed. While the Court certainly
does not condone the Defendants' actions, if true, here
again Plaintiff's remedy with respect to his lost and/or
damaged property lies in Article 2315, not §1983.
Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir.
2009), cert. denied, 560 U.S. 944, 130 S.Ct. 3368
(2010). That the personal property may have included
eyeglasses and a knee brace, without more, does not
demonstrate that prison officials were aware that their
actions exposed Lewis to substantial harm or that the
officials consciously disregarded that risk to the extent
that such items were even medically necessary. Id.
at 769-70 (confiscation of prisoner's spare glass eye).
Similarly, to the extent that Lewis' impounded personal
property may have included legal materials, he fails to show
any resulting prejudice. Id. at 769. And again, the
use of derogatory epithets, even if true, is not redressable
under §1983. Mosley v. Antoine, 61 Fed.Appx.
919, 2003 WL 1109061 (5th Cir. 2003).
Plaintiff complains of the handling and outcome of the ARP
grievance that he initiated with respect to the handling of
his personal property. Inasmuch as inmates have no
constitutional right to an adequate and effective grievance
procedure or to have their complaints investigated and
resolved to their satisfaction, no constitutional violation
is apparent. Propes v. Mays, 169 Fed.Appx. 183,
184-85 (5th Cir. 2006); Geiger v. Jowers,
404 F.3d 371, 373-74 (5th Cir. 2005); Tyson v.
Tanner, No. 08-CV-4599, 2009 WL 2883056 at *5 (E.D. La.
Aug. 25, 2009). The Court also notes that without a showing
of physical injury, of which feelings of fear and anxiety do
not qualify, damages for mental or emotional suffering
experienced while in custody are not recoverable under
§1983. 42 U.S.C. §1997e(c); Herman v.
Holiday, 238 F.3d 660, 665-66 (5th Cir. 2001);
Cambre v. Jefferson Parish Sheriff's Office, No.
05-CV-6863, 2006 WL 2092403 at *4-5 (E.D. La. Jul. 25, 2006).
foregoing reasons it is recommended that Defendants motion be
granted and that Plaintiffs §1983 claims against them in
their official capacity be dismissed without prejudice for
want of jurisdiction. It is further recommended that
Plaintiffs §1983 claims against the Defendants in their
individual capacity be ...