Cager v. Jindal et al

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATIONS 7 in part. FURTHER ORDER denying as moot 5 MOTION to Certify Class filed by Edward Cager. FURTHER ORDER that Plaintiffs complaint is DISMISSED WITH PREJUDICE. Signed by Judge Nannette Jolivette Brown on 1/5/2015. (NEF: MAG-3)(caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
EDWARD CAGER

CIVIL ACTION

VERSUS

NO. 14-554

BOBBY JINDAL, et al.

SECTION: “G”(3)

ORDER AND REASONS
Before the Court are Plaintiff Edward Cager’s (“Plaintiff”) objections1 to the April 1, 2014,
Report and Recommendation of the United States Magistrate Judge assigned to the case.2 Plaintiff,
a state prisoner sentenced to the custody of the Louisiana Department of Public Safety and
Corrections and confined to the B.B. “Sixty” Rayburn Correction Center (“RCC”) filed a complaint
pursuant to 42 U.S.C. § 1983 alleging that Governor Bobby Jindal, Secretary James M. LeBlanc of
the Louisiana Department of Public Safety and Corrections (“DOC”), and Warden Robert Tanner
(collectively, “Defendants”) are illegally imprisoning him at hard labor.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 the Magistrate Judge erred in
recommending that the complaint be dismissed with prejudice as frivolous and that the Magistrate
Judge abused his discretion in denying Plaintiff’s motion to appoint counsel.5 After reviewing the
complaint, the Magistrate Judge’s Report and Recommendation, Plaintiff’s objections, the record,
1

Rec. Doc. 8.

2

Rec. Doc. 7.

3

Rec. Doc. 1.

4

Rec. Doc. 7.

5

Rec. Doc. 8.

1

and the applicable law, for the following reasons, the Court will adopt in part the Magistrate Judge’s
Report and Recommendation, overrule Plaintiff’s objections and dismiss this action with prejudice.
I. Background
A. Factual Background6
Plaintiff filed the instant complaint on March 12, 2014.7 He alleges that he was convicted
in 2010 of possession with intent to distribute heroin, possession with intent to distribute marijuana,
distribution of heroin, illegal carrying of a weapon, contraband, convicted felon in possession of a
firearm, and second degree murder.8 He was sentenced as an habitual offender under Louisiana
Revised Statute § 15:529.1 to twenty-two years imprisonment.9 He argues that § 15:529.1 did not
authorize imprisonment “at hard labor” until it was amended in 2010, after he was sentenced.10
Therefore, he contends that Defendants are subjecting him to “involuntary servitude” in violation
of the Thirteenth Amendment and have deprived him of a “state-created liberty interest” to avoid
imprisonment at hard labor.11 He additionally argues that Defendants’ actions in retroactively
applying the 2010 amendments to § 15:529.1 violated the federal Ex Post Facto Clause.12
On March 12, 2014, Plaintiff filed a “Motion for the Appointment of Counsel.”13 The

6

The following background derives from Plaintiff’s complaint, and the Court will consider allegations as
true for the purposes of considering Plaintiff’s objections.
7

Rec. Doc. 1.

8

Id. at 11.

9

Id.

10

Id. at 9.

11

Id. at 5.

12

Id.

13

Rec. Doc. 4.

2

Magistrate Judge denied the motion on April 1, 2014, finding that appointment of counsel was not
warranted.14 On March 12, 2014, Plaintiff also filed a “Motion for Certification of the Class,”
arguing that the Court should grant class certification pursuant to Rule 23 of the Federal Rules of
Civil Procedure.15
B. Report and Recommendation Findings
On April 1, 2014, the Magistrate Judge recommended that Plaintiff’s “Motion for
Certification of the Class” be denied.16 The Magistrate Judge found that the motion should be denied
because pro se litigants should not allowed to serve as class representatives.17
The Magistrate Judge also recommended that Plaintiff’s claims be dismissed as frivolous.18
He found Plaintiff’s Thirteenth Amendment claim was patently frivolous because requiring a
prisoner to work, with or without pay, does not violate the Thirteenth Amendment regardless of
whether or not the prisoner was sentenced to hard labor.19 He also found Plaintiff’s “state-created
liberty interest” claim without merit, noting that “[r]equiring a prisoner to work while incarcerated

14

Rec. Doc. 6 (citing Norton v. Dimazana, 122 F.3d 286, 293 (5th Cir. 1997); Ulmer v. Chancellor, 691
F.2d 209, 213 (5th Cir. 1982)).
15

Rec. Doc. 5.

16

Rec. Doc. 8 at 2, 8.

17

Id. at 2 (citing Fymbo v. State Farm Fire & Casualty Co., 213 F.3d 1320, 1321 (10th Cir. 2000); Powers
v. Clay, Civ. Action No. V-11-051, 2011 WL 6130929, at *3 (S.D. Tex. Dec. 8, 2011); Wetzel v. Strain, Civ. Action
No. 09-7633, 2009 WL 5064445, at *1 (E.D. La. Dec. 16, 2009); Luna v. Kliebert, Civ. Action No. 09-3853, 2009
WL 2175773, at *1 n.1 (E.D. La. Jul. 17, 2009), aff'd, 368 F. App’x 500 (5th Cir. 2010); Sosa v. Strain, Civ. Action
No. 06-9040, 2007 WL 1521441, at *7 (E.D. La. May 22, 2007)).
18

Id. at 8.

19

Id. at 4–5 (citing Villarreal v. Morales, 370 F. App’x 542, 543 (5th Cir. 2010); Smith v. Dretke, 157 F.
App’x 747, 748 (5th Cir. 2005); Walton v. Texas Department of Criminal Justice, Institutional Division, 146 F.
App’x 717, 718 (5th Cir. 2005); Ali v. Johnson, 259 F.3d 317 (5th Cir. 2001)).

3

is not an atypical and significant hardship different from the ordinary incidents of prison life.”20
Finally, the Magistrate Judge found Plaintiff’s ex post facto claim without merit.21 He noted
that the Louisiana First Circuit Court of Appeal rejected the argument that state law did not allow
habitual offender sentences to be imposed at hard labor prior to the 2010 amendment.22
Alternatively, he found that even if state law did not allow him to be imprisoned at hard labor, prison
authorities may impose a work requirement under federal constitutional law.23
II. Objections
A. Plaintiff’s Objections
On April 16, 2014, Plaintiff filed objections to the Magistrate Judge’s Report and
Recommendation.24 Plaintiff argues that Louisiana Revised Statute § 15:529.1 created a liberty
interest to avoid imprisonment at hard labor.25 He asserts that the Magistrate Judge incorrectly
applied the “atypical and hardship principle” set forth by the Supreme Court in Sandin v. Conner.26
He argues that “atypical and hardship principle” applies only to minor liberty interests, while the

20

Id. at 5 (citing Sandin v. Conner, 515 U.S. 472 (1995); Gill v. Texas Department of Criminal Justice,
No. 95-20723, 1996 WL 60544, at *2 (5th Cir. Jan. 23, 1996); Ibarra v. Federal Bureau of Prisons, Civ. Action No.
5:12-CV-139, 2013 WL 6065445, at *3 (N.D. Tex. Nov. 18, 2013); Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir.
1995); Madison v. Parker, 104 F.3d 765, 767 (5th Cir. 1997)).
21

Id. at 6.

22

Id. (citing State v. Douglas, 72 So.3d 392, 398–99 (La. App. 1st Cir. 2011)).

23

Id. at 8 (citing Ali v. Johnson, 259 F.3d 317 (5th Cir. 2001); Villarreal v. Morales, 370 Fed. App'x 542,
544 (5th Cir. 2010)).
24

Rec. Doc. 8.

25

Id. at 1.

26

Id. at 1–4.

4

issue presented in the instant case is a major liberty interest.27 He cites Louisiana Revised Statute
§ 15:824(c), which provides, “Notwithstanding any other law to the contrary, only individuals
actually sentenced to death or imprisonment at hard labor shall be committed to the Department of
Corrections.”28 He argues that a person sentenced without hard labor shall not be committed to the
Department of Corrections.29 He contends that he could not be legally committed to imprisonment
at hard labor because at the time he was sentenced Louisiana Revised Statute § 15:529.1 did not
authorize imprisonment at hard labor.30 He cites the United States Supreme Court decision In re
Mills,31 the Louisiana Supreme Court decision State v. King32 and a Louisiana Attorney General
opinion33 to support his assertion that his sentence was illegal.34 Accordingly, he asserts that
Defendants do not have the authority to house Plaintiff within the custody of the Department of
Corrections.35

27

Id. at 4.

28

Id. at 5.

29

Id.

30

Id.

31

135 U.S. 263 (1890). In re Mills discussed an Act of Congress, which established a United States court in
the Indian Territory, and giving it exclusive jurisdiction of offenses “not punishable by death or by imprisonment at
hard labor.” Id.
32

969 So.2d 1228 (La. 2007) (“[A] defendant convicted of armed robbery and sentenced under the habitual
offender law can be sentenced to an additional five years under LSA-R.S. 14:64.3 when the dangerous weapon used
in commission of the armed robbery is a firearm.”).
33

La. Atty. Gen. Op. No. 80-1478 (“Since LSA R.S. 15:824(c) permits commitment to the Department of
Corrections of only those individuals actually sentenced to death or confinement at hard labor, persons convicted of
offenses for which imprisonment at hard labor cannot be imposed are not eligible for commitment to state
institutions, (Department of Corrections).”).
34

Rec. Doc. 8 at 6.

35

Id. at 7.

5

Plaintiff objects to the Magistrate Judge’s finding that his ex post facto claim is without
merit.36 He argues that the Louisiana Second Circuit Court of Appeal decision State v. Robinson,
which provide that a sentence enhanced under the habitual offender statute should be computed by
referring to the underlying offense, was erroneously decided because the habitual offender statute
modifies the sentencing provisions for the underlying offense.37 He cites two Louisiana Supreme
Court decisions holding that fines cannot be imposed under the habitual offender statute, arguing
that this reasoning should apply to his case.38 He also argues that the court in Robinson reasoned that
the Louisiana Revised Statute § 15:529.1 is an addition to, rather than a replacement of, the
conditions required by the sentencing provisions for the underlying offense.39 He contends that this
reasoning was erroneous because the habitual offender statute provides that the sentencing court
shall impose a sentence under the habitual offender statute and vacate the previous sentence.40 He
argues that “[b]y instructing the judge to ‘vacate’ the previous sentence, the legislature intended for
the penalty provisions under the habitual offender statute to effectively replace the penalty provision
for the underlying felony.”41 Plaintiff asserts that his case is distinguishable from Villarreal v.
Morales because the complaint there related to the illegality of the work imposed, while his
complaint relates to the illegality of his custody.42

36

Id.

37

Id. at 7–8 (citing State v. Robinson, 54 So.2d 1292 (La. App. 2nd Cir. 2011)).

38

Id. at 8 (citing State v. Dixon, 584 So.2d 668 (La. 1991); State v. Dickerson, 584 So.2d 1140 (La. 1991)).

39

Id. at 9.

40

Id.

41

Id. at 10.

42

Id. at 11–12 (citing 370 F. App’x at 544).

6

Finally, Plaintiff argues that the Magistrate Judge abused his discretion by denying his
motion to appoint counsel.43 Plaintiff argues that he is entitled to appointment of counsel because:
(1) he has proved two constitutional violations; (2) the issues involved in this case affect more than
2,500 prisoners; (3) he is indigent and not legally trained; and (4) he sought assistance from several
attorneys who showed no interest in the case.44
B. Defendants’ Response
Defendants did not file a brief in opposition to Plaintiff’s objections despite receiving
electronic notice of the filing on April 16, 2014.
III. 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.45 A District Judge “may accept, reject, or modify the recommended disposition” of a
Magistrate Judge on a dispositive matter.46 The District Judge must “determine de novo any part of
the [Report and Recommendation] that has been properly objected to.”47 However, a District Court’s

43

Id. at 12.

44

Id. at 12.

45

28 U.S.C. § 636(b)(1)(B).

46

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

47

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

7

review is limited to plain error of parts of the report which are not properly objected to.48
B. Standard for Frivolousness
A district court has broad discretion in determining the frivolous nature of a prisoner’s
complaint.49 A complaint is frivolous if it lacks an arguable basis in law or fact.50 A claim has no
arguable basis in law if “it is based on an indisputably meritless legal theory.”51 It lacks a basis in
fact if “the facts alleged are clearly baseless.”52 If a court finds that a prisoner’s claims are frivolous,
the court must dismiss the claims sua sponte.53
IV. Law and Analysis
A. Plaintiff’s Liberty Interest Claim
Plaintiff objects to the Magistrate Judge’s finding that his Fourteenth Amendment liberty
interest claim is frivolous. Plaintiff argues that Louisiana Revised Statute § 15:529.1 created a
liberty interest to avoid imprisonment at hard labor. He asserts that the Magistrate Judge incorrectly
applied the “atypical and hardship principle” set forth by the Supreme Court in Sandin v. Conner,
arguing that principle applies only to minor liberty interests while the issue presented in the instant
case is a major liberty interest. Plaintiff’s interpretation of the Supreme Court’s decision in Sandin
v. Conner is misplaced.
In Sandin v. Conner the Supreme Court held that a prisoner’s liberty interest is generally
48

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).
49

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

50

Id.

51

Id.

52

Id.

53

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

8

“limited to freedom from restraint which, while not exceeding the sentence in such an unexpected
manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes
atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”54
The Court did not distinguish between “major” and “minor” liberty interests, as Plaintiff contends.
Instead, the Court distinguished between limitations to freedom of restraint which: (1) exceed the
sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of
its own force; or (2) impose atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.55
The Fifth Circuit has held that requiring an inmate to work is “not an atypical or significant
hardship different from the ordinary incidents of prison life.”56 In his objections to the Report and
Recommendation, Plaintiff appears to argue that his sentence was exceeded in such an unexpected
manner as to give rise to protection by the Due Process Clause of its own force. Plaintiff argues that
Defendants do not have the authority to house Plaintiff within the custody of the Department of
Corrections because at the time he was sentenced Louisiana Revised Statute § 15:529.1, the habitual
offender statute,57 did not authorize imprisonment at hard labor. He correctly notes that Louisiana
Revised Statute § 15:824(c) provides, “Notwithstanding any other law to the contrary, only
individuals actually sentenced to death or imprisonment at hard labor shall be committed to the

54

Sandin, 515 U.S. at 483–84 (internal citations omitted).

55

See Wilkerson v. Goodwin, — F.3d — (5th Cir. 2014), 2014 WL 7211168 *3 (“In Sandin, the Supreme
Court held that, in addition to the obvious due process interests implicated by restrictions that lengthen a sentence,
prisoners’ liberty interests ‘will be generally limited to freedom from restraint which . . . imposes atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life.’”).
56

Gill v. Texas Department of Criminal Justice, No. 95-20723, 1996 WL 60544, at *2 (5th Cir. Jan. 23,

57

LA. REV. STAT. § 15:529.1.

1996).

9

Department of Corrections.”58 However, Plaintiff’s argument that a sentence to imprisonment at
hard labor was illegal under the prior version of habitual offender statute has been rejected by
several Louisiana Courts of Appeal.59 Further, in State v. King, a case cited by Plaintiff, the
Louisiana Supreme Court affirmed a sentence of 198 years at hard labor under the prior version of
the habitual offender statute.60
Based on the foregoing, the Court finds that Plaintiff’s sentence was authorized by Louisiana
law, and he has not shown any limitations to freedom of restraint which exceed the sentence in such
an unexpected manner as to give rise to protection by the Due Process Clause of its own force or
impose atypical and significant hardship on the inmate in relation to the ordinary incidents of prison
life. Accordingly, on de novo review, the Court finds Plaintiff’s claim arising under the Fourteenth
Amendment is without merit and frivolous and must be dismissed with prejudice pursuant to 28
U.S.C. §§ 1915(e)(2)(B), 1915A(b)(1), and 42 U.S.C. § 1997e(c).
B. Plaintiff’s Ex Post Facto Claim
Plaintiff objects to the Magistrate Judge’s finding that his ex post facto claim is without merit
and frivolous. He argues that the Louisiana Second Circuit Court of Appeal decision State v.
Robinson was erroneously decided. However, as discussed above, the Louisiana Supreme Court and
Louisiana Courts of Appeal have affirmed sentences to imprisonment at hard labor under the prior
version of habitual offender statute. Therefore, upon de novo review of the issue, the Court finds

58

Id. at 5.

59

State v. Robinson, 46-330 (La. App. 2d Cir. 2/18/11), 54 So.3d 1292 (“A sentence enhanced under the
habitual offender statute is computed by referring to the underlying offense. . .the sentence conditions required by
La. R.S. 15:529.1(G) are additions to, rather than replacements of, those conditions required by the sentencing
provision for the underlying offense.”). See also State v. Thomas, 11-136 (La. App. 5th Cir. 12/13/11), 81 So.3d 848;
State v. Douglas, 10-2039 (La. App. 1st Cir. 7/26/11), 72 So.3d 392.
60

969 So.2d 1228 (La. 2007).

10

Plaintiff’s ex post facto claim is without merit and frivolous and must be dismissed with prejudice
pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b)(1), and 42 U.S.C. § 1997e(c).
C. Denial of Motion to Appoint Counsel
Plaintiff alleges that the Magistrate Judge erred in failing to appoint him counsel. On April
1, 2014, the Magistrate Judge denied Plaintiff’s Motion to Appoint Counsel, noting that the Report
and Recommendation recommended that Plaintiff’s complaint be dismissed as frivolous.61 Access
to courts is protected by the First Amendment right to petition for redress of grievances and the
Fourteenth Amendment guarantees of procedural and substantive due process.62 Prisoners retain
their constitutional right to court access, and that access must be “adequate, effective, and
meaningful.”63 “The fundamental constitutional right to access to the courts requires prison
authorities to assist inmates in the preparation and filing of meaningful legal papers by providing
prisoners with adequate law libraries or adequate assistance from persons trained in the law.”64 This
right can be satisfied either through appointed counsel, access to a law library, or access to legally
trained paraprofessionals.65 Plaintiff has made no showing that he was denied adequate, effective,
and meaningful court access simply because he was not appointed counsel to represent him in this
matter. In fact, Plaintiff has been provided court access as demonstrated here. This allegation alone
does not rise to the level of a constitutional violation, and this allegation fails to state a claim upon
which relief may be granted. Accordingly, upon de novo review of the Magistrate Judge’s decision

61

Rec. Doc. 6.

62

Jackson v. Procunier, 789 F.2d 307, 309–10 (5th Cir.1986).

63

Bounds v. Smith, 430 U.S. 817, 822 (1977).

64

Id. at 828.

65

Id. at 830–31.

11

in this matter the Court overrules Plaintiff’s objection.
D. Report and Recommendation Findings Not Objected To
The Magistrate Judge found Plaintiff’s Thirteenth Amendment claim was patently frivolous
because requiring a prisoner to work, with or without pay, does not violate the Thirteenth
Amendment regardless of whether or not the prisoner was sentenced to hard labor.66 Plaintiff does
not object to this finding. Reviewing for plain error and finding none, the Court adopts the
Magistrate Judge’s finding that Plaintiff’s Thirteenth Amendment claim is frivolous.
The Magistrate Judge also found that Plaintiff’s “Motion for Certification of the Class”
should be denied.67 The Magistrate Judge cited several cases standing for the proposition that pro
se litigants should not allowed to serve as class representatives.68 Because the Court finds Plaintiff’s
claims are frivolous and should be dismissed, it will not adopt the Magistrate Judge’s findings on
this issue and will deny Plaintiff’s “Motion for Certification of the Class” as moot.69
V. Conclusion
For the foregoing reasons, the Court affirms the Magistrate Judge’s Report and
Recommendation in part. Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s objections are OVERRULED;

66

Rec. Doc. 7 at 4–5 (citing Villarreal, 370 F. App’x at 543; Smith, 157 F. App’x at 748; Walton, 146 F.
App’x at 718; Ali, 259 F.3d at 317).
67

Id. at 2, 8.

68

Id. at 2 (citing Fymbo, 213 F.3d at 1321 (10th Cir. 2000); Powers v. Clay, Civ. Action No. V-11-051,
2011 WL 6130929, at *3 (S.D. Tex. Dec. 8, 2011); Wetzel v. Strain, Civ. Action No. 09-7633, 2009 WL 5064445, at
*1 (E.D. La. Dec. 16, 2009); Luna v. Kliebert, Civ. Action No. 09-3853, 2009 WL 2175773, at *1 n.1 (E.D. La. Jul.
17, 2009), aff'd, 368 F. App’x at 500; Sosa v. Strain, Civ. Action No. 06-9040, 2007 WL 1521441, at *7 (E.D. La.
May 22, 2007)).
69

See Newton v. Stringfellow, 93 F. App’x 615, 616 (5th Cir. 2004) (“Because the district court did not err
in dismissing the plaintiffs’ complaint for failure to state a claim, the district court did not err in denying the motion
for class action maintainability as moot.”).

12

IT IS FURTHER ORDERED that the Court adopts in part the Report and
Recommendation issued by the Magistrate Judge;70
IT IS FURTHER ORDERED that “Motion for Certification of the Class” is DENIED AS
MOOT.
IT IS FURTHER ORDERED that Plaintiff’s complaint is DISMISSED WITH
PREJUDICE.
NEW ORLEANS, LOUISIANA, this ______day of January, 2015.
5th

___________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

70

For the reasons discussed above, the Court does not adopt the portion of the Report and Recommendation
related to Plaintiff’s “Motion for Certification of the Class.”

13