Smith v. Larpenter et al

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATIONS 8 . Signed by Judge Nannette Jolivette Brown.(ijg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GLYNN EREC SMITH

CIVIL ACTION

VERSUS

NO. 13-6403

JERRY LARPENTER, et al.

SECTION “G”(3)
ORDER AND REASONS

Before the Court is Plaintiff Glynn Erec Smith’s (“Plaintiff”) objection1 to the June 10, 2014,
Report and Recommendation of the United States Magistrate Judge assigned to the case.2 Plaintiff,
a state prisoner in the Terrebonne Parish Criminal Justice Complex, filed a complaint pursuant to
42 U.S.C. § 1983 against Sheriff Jerry Larpenter (“Larpenter”), Warden Major Thomas Cope
(“Cope”) and Deputy Bailys (“Bailys”) alleging that his diabetic meal tray was not delivered at noon
on August 21, 2013.3 The Magistrate Judge recommends that the Court dismiss with prejudice
Plaintiff’s complaint.4 Plaintiff objects to the Magistrate Judge’s Report and Recommendation
arguing that he became weak due to prison officials’ failure to provide him with his proper diet.5 He
asserts that this conduct was “cruel and extremly [sic] excessive and unusual punishment.”6 After
reviewing the complaint, the Magistrate Judge’s Report and Recommendation, Plaintiff’s objections,

1

On July 8, 2014, Plaintiff filed an objection to the Report and Recommendation. (Rec. Doc. 11). The
Clerk of Court marked the objection as deficient because Plaintiff had not included the following information: (1)
the name of this Court, title, docket number, section and magistrate judge number; (2) the filer’s name, address and
telephone number below his signature; or (3) a certificate of service. (Rec. Doc. 12 at 3). The Clerk of Court
provided Plaintiff with a deficiency remedy date of July 29, 2014, but Plaintiff failed to provide the requested
information. Id. Because Plaintiff is proceeding pro se, the Court will consider the arguments made in his deficient
objection to the Report and Recommendation.
2

Rec. Doc. 8.

3

Rec. Doc. 1 at 5.

4

Rec. Doc. 7.

5

Rec. Doc. 11 at 2.

6

Id.

the record, and the applicable law, for the following reasons, the Court will overrule Plaintiff’s
objections, adopt the Magistrate Judge’s Report and Recommendation and dismiss this action with
prejudice.
I. Background
A. Factual Background7
Plaintiff filed the instant complaint on November 18, 2013.8 He alleges that on August 21,
2013, prison officials failed to deliver his noon meal to his prison quarters.9 He asserts that he is
suppose to be served a special dietary meal due to his diabetes.10 He alleges that he informed Bailys
of the issue, but the officer refused to do anything to remedy the situation.11 He contends that he
began to feel sick and “felt as if [he] was going into diabetic shock between the noon meal and the
supper meal.”12 Plaintiff complains that if it had not been for the two inmates who had a little food
left over from the noon meal, he would have gone into a diabetic coma and possibly died due to
Bailys’ actions.13 Therefore, he seeks ten thousand ($10,000 ) dollars in monetary damages.14

7

The following background derives from Plaintiff’s complaint, and the Court will consider allegations as
true for the purposes of considering Plaintiff’s objections.
8

Rec. Doc. 1.

9

Id. at 5.

10

Id.

11

Id. at 6.

12

Id.

13

Id.

14

Id. at 5.
2

B. Report and Recommendation Findings
On June 10, 2014, the Magistrate Judge recommended that Plaintiff’s claims be dismissed
as frivolous.15 She found that supervisory officials, like Larpenter and Cope, cannot be held liable
pursuant to § 1983 under any theory of respondeat superior simply because an employee or
subordinate at the prison allegedly violated the plaintiff’s constitutional rights.16 She noted that the
supervisory officials may only be liable under § 1983 if they were “personally involved in the acts
causing the deprivation of his constitutional rights or a causal connection exists between an act of
the official and the alleged constitutional violation.”17 She found that Plaintiff had not alleged that
Larpenter or Cope were present for, or personally involved in his noon diabetic meal tray not being
delivered or any of the alleged complaints he has against Bailys.18 Further, she found that Plaintiff
had not alleged that “he suffered any injury as a result of any directive, supervised training or
activity, or other policy set forth by the Sheriff or Warden which would create vicarious liability.”19
Accordingly, she found Plaintiff’s § 1983 claims against Larpenter and Cope were frivolous and
otherwise failed to state a claim for which relief could be granted.20
The Magistrate Judge also recommended that the claim against Bailys be dismissed as
frivolous and for failure to state a claim for which relief could be granted.21

15

Rec. Doc. 8 at 6.

16

Id. at 4 (citing Alton v. Tex. A&M Univ., 168 F.3d 196, 200 (5th Cir. 1999)).

17

Id. (quoting Douthit v. Jones, 641 F.2d 345, 346 (5th Cir. 1981)).

18

Id.

19

Id. (citing Thompson v. Upshur County, 245 F.3d 447, 459 (5th Cir. 1991)).

20

Id.

21

Id. at 5.
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C. Plaintiff’s Objections
On July 8, 2014, Plaintiff attempted to file an objection to the Magistrate Judge’s Report and
Recommendation.22 He contends that the failure of prison officials to deliver the meal was “torture”
because of “the reaction [his] body went [through].”23 Plaintiff argues that he became weak due to
prison officials’ failure to provide him with his proper diet.24 He asserts that this conduct was “cruel
and extremly [sic] excessive and unusual punishment.”25
II. Standard of Review
A. Review of the Magistrate Judge’s Report and Recommendation
When designated by a district court to do so, a United States Magistrate Judge may consider
prisoner petitions challenging the conditions of confinement and recommend their disposition to the
District Court Judge in accordance with the Magistrate Judge’s findings of fact and determinations
of law.26 A District Judge “may accept, reject, or modify the recommended disposition” of a
Magistrate Judge on a dispositive matter.27 The District Judge must “determine de novo any part of
the [Report and Recommendation] that has been properly objected to.”28 However, a District Court’s
review is limited to plain error of parts of the report which are not properly objected to.29
22

Rec. Doc. 11.

23

Id. at 2.

24

Id.

25

Id.

26

28 U.S.C. § 636(b)(1)(B).

27

Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).

28

Fed. R. Civ. P. 72(b)(3).

29

See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded
by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending time to file objections from ten to fourteen days).
4

B. Standard for Frivolousness
A district court has broad discretion in determining the frivolous nature of a prisoner’s
complaint.30 A complaint is frivolous if it lacks an arguable basis in law or fact.31 A claim has no
arguable basis in law if “it is based on an indisputably meritless legal theory.”32 It lacks a basis in
fact if “the facts alleged are clearly baseless.”33 If a court finds that a prisoner’s claims are frivolous,
the court must dismiss the claims sua sponte.34
III. Law and Analysis
A. Plaintiff’s Claim Against the Supervisory Officials
Plaintiff does not object to the Magistrate Judge’s finding that his claim against the
supervisory officials should be dismissed . Supervisory officials, Larpenter and Cope cannot be held
liable pursuant to § 1983 under any theory of respondeat superior simply because an employee or
subordinate at the prison allegedly violated the plaintiff’s constitutional rights.35 Plaintiff does not
alleged that Larpenter or Cope were present for, or personally involved in his noon diabetic meal
tray not being delivered or any of the alleged complaints he has against Bailys.36 Further, Plaintiff
does not allege that he suffered any injury as a result of any directive, supervised training or activity,

30

See Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998) (citation omitted).

31

Id.

32

Id.

33

Id.

34

See 28 U.S.C. § 1915A, 42 U.S.C. § 1997e(c).

35

Alton, 168 F.3d at 200.

36

See Douthit, 641 F.2d at 346.
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or other policy set forth by Larpenter or Cope which would create vicarious liability.37 Accordingly,
reviewing for plain error and finding none, the Court adopts the Magistrate Judge’s recommendation
that Plaintiff’s claim against Larpenter and Cope should be dismissed as frivolous and for otherwise
failing to state a claim for which relief could be granted pursuant to 28 U.S.C. § 1915(e) and §
1915A and 42 U.S.C. § 1997e.
B. Plaintiff’s Claim Against Deputy Bailys
The Magistrate Judge recommended that Plaintiff’s claim against Bailys be dismissed
because Plaintiff did not allege that he suffered any physical injury as a result of his noon meal not
being delivered. Plaintiff objects arguing that he became weak due to prison officials’ failure to
provide him with his proper diet. He contends that the failure of prison officials to deliver the meal
was “torture” because of “the reaction [his] body went [through].”
42 U.S.C. § 1997e(e) provides: “No Federal civil action may be brought by a prisoner
confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while
in custody without a prior showing of physical injury or the commission of a sexual act.” The Fifth
Circuit has held that state prisoners are precluded from recovering compensatory damages where
no physical injury occurred.38 Here, Plaintiff seeks only monetary compensatory damages in the
amount of $10,000.00. In his objections to the Report and Recommendation he alleges that he
became weak, but he does not allege that the failure to deliver his noon meal caused him any
physical harm. Plaintiff alleges speculative consequences that could have resulted from missing his
meal, including the possibility of a diabetic coma causing death. However, he has not alleged any

37

See Thompson, 245 F.3d at 459.

38

Stauffer v. Gearhart, 741 F.3d 574, 583 (5th Cir. 2014).
6

actual physical injury. Accordingly, on de novo review, the Court finds that Plaintiff’s claim against
Bailys should be dismissed as frivolous and for failure to state a claim for which relief could be
granted pursuant to 28 U.S.C. § 1915e(2) and 42 U.S.C. § 1997e(e).
IV. Conclusion
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s objections are OVERRULED;
IT IS FURTHER ORDERED that the Court adopts in part the Report and
Recommendation issued by the Magistrate Judge;
IT IS FURTHER ORDERED that Plaintiff’s complaint is DISMISSED WITH
PREJUDICE.

8th
NEW ORLEANS, LOUISIANA, this ______day of July, 2015.

___________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

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