McGrath v. Strain

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATIONS 15 . Signed by Judge Jay C. Zainey.(jrc, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOHN THOMAS McGRATH, SR.

CIVIL ACTION

VERSUS

NO. 12-956

JACK STRAIN

SECTION “A" (2)
ORDER

The Court, having considered the complaint, the record, the applicable law, the
Report and Recommendation of the United States Magistrate Judge, and the objection
to the Magistrate Judge's Report and Recommendation, hereby approves the Report and
Recommendation of the United States Magistrate Judge and adopts it as its opinion in
this matter.
The incident that forms the basis of this lawsuit occurred on March 9, 2012. The
complaint mentions nothing about physical injuries. In response to the Report and
Recommendation, which clearly explained why Plaintiff’s claims are not cognizable
under federal law and why he cannot recover damages in the absence of physical injury,
Plaintiff filed two “statements” (Rec. Docs. 18 & 20) and an Objection (Rec. Doc. 19).
Via those documents Plaintiff now claims that he did in fact sustain a physical injury at
the jail but the injury was sustained in conjunction with an incident that occurred on
March 1, 2012. According to Plaintiff, Sergeant LeBlanc placed him “in arm bar
position” and broke his left hand. (Rec. Doc. 19, at 1).

At the Spears hearing held on June 7, 2012, the magistrate judge questioned
Plaintiff specifically about physical injuries and Plaintiff denied having any. Plaintiff
concedes having previously denied any physical injuries but he claims that the reason he
withheld this information from the magistrate judge is because he wasn’t injured “at the
very moment” and he couldn’t prove that his left hand was broken. (Rec. Doc. 20, at 1).
But according to Plaintiff, an X-ray of his hand taken on September 13, 2012, showed
that his hand was broken. (Id.). Plaintiff also states that a deputy called Davis, who does
not appear to be a defendant in this case, was present when the magistrate judge
conducted the Spears hearing and advised Plaintiff not to state a claim about “my broke
hand cause he would make sure more charges would be placed on [him].” (Rec. Doc. 19,
at 3).
The foregoing notwithstanding, it is undisputed that Plaintiff did not sustain any
physical injury from the March 9, 2012, incident, which is the sole incident at issue in
this lawsuit. Plaintiff never moved to amend his complaint in order to add claims related
to an incident that occurred on March 1, 2012, and it is not clear to the Court whether this
new claim has even been properly exhausted. The Court therefore adopts the Report and
Recommendation because the claims related to the March 9, 2012, incident are not
legally cognizable for the reasons given by the magistrate judge.
Accordingly;

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IT IS ORDERED that plaintiff's complaint is hereby DISMISSED WITH
PREJUDICE as legally frivolous and/or for failure to state a claim under 28 U.S.C. §
1915(e)(2) and 42 U.S.C. § 1997e(c)(1).
October 5, 2012

_________________________________
UNITED STATES DISTRICT JUDGE

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