Cadiere v. Terrebonne Parish Consolidated Government et al

Filing 14

ORDER: IT IS HEREBY ORDERED that Plaintiff's objections are OVERRULED; IT IS FURTHER ORDERED that the Court ADOPTS the 11 Report and Recommendation issued by the Magistrate Judge; IT IS FURTHER ORDERED that Plaintiff's complaint is DISMISSED WITH PREJUDICE as frivolous and for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. 1915, 28 U.S.C. 1915A, and 42 U.S.C. 1997e. Signed by Judge Nannette Jolivette Brown on 4/24/2017.(mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JERRY JOHN CADIERE, JR.

CIVIL ACTION

VERSUS

NO. 16-16591

TERREBONNE PARISH CONSOLIDATED
GOVERNMENT, et al.

SECTION “G”(4)

ORDER
Before the Court are Plaintiff Jerry John Cadiere, Jr.’s (“Plaintiff”) objections to the Report
and Recommendation of the United States Magistrate Judge assigned to the case.1 Plaintiff, a state
prisoner housed in the Terrebonne Parish Criminal Justice Complex in Houma, Louisiana, filed a
complaint pursuant to 42 U.S.C. § 1983 against the Terrebonne Parish Consolidated Government
and the Terrebonne Consolidated Government (collectively, “Defendants”).2 The Magistrate
Judge issued a Report and Recommendation, recommending that the Court dismiss Plaintiff’s
claims with prejudice as frivolous.3 On January 25, 2017, Plaintiff filed objections to the Report
and Recommendation.4 After reviewing the complaint, the Magistrate Judge’s Report and
Recommendation, Plaintiff’s objections, the record, and the applicable law, for the following
reasons, the Court will overrule Plaintiff’s objections, adopt the Report and Recommendation, and
dismiss Plaintiff’s claims with prejudice.

1

Rec. Doc. 12.

2

Rec. Doc. 1.

3

Rec. Doc. 11 at 4.

4

Rec. Doc. 12.

I. Background
A.

Factual and Procedural Background5
On November 21, 2016, Plaintiff filed a complaint against Defendants.6 In his complaint,

Plaintiff alleges that he previously injured his knee while in the Terrebonne Parish Sheriff Office’s
care.7 Plaintiff further alleges that he sent requests to the medical department at the Terrebonne
Parish Criminal Justice Complex, but he was not able to see a doctor for two months.8 Plaintiff
states that a doctor visits Terrebonne Parish Criminal Justice Complex on Tuesdays and
Thursdays.9 Plaintiff asserts that he was off of his medication for almost two weeks before he
started to receive medication again.10 He also alleges that he filed written grievances but did not
receive a response.11
Plaintiff seeks an order from the Court directing Defendants to fix the problem with his
knee.12 He also seeks $2.5 million dollars for pain and suffering and reimbursement for filing fees
and court costs.13

The following background derives from Plaintiff’s complaint, and the Court will consider his allegations as
true for the purpose of considering Plaintiff’s objections.
5

6

Rec. Doc. 1.

7

Id. at 5.

8

Id.

9

Id.

10

Id.

11

Id.

12

Id.

13

Id.

2

B.

Report and Recommendation Findings
On January 24, 2017, the Magistrate Judge issued a Report and Recommendation

recommending that the Court dismiss Plaintiff’s claims as frivolous and for failure to state a claim
upon which relief can be granted pursuant to 28 U.S.C. § 1915, 28 U.S.C. § 1915A, and 42 U.S.C.
§ 1997e.14 The Magistrate Judge noted that in Monell v. Department of Social Services of the City
of New York the United States Supreme Court held that municipalities and municipal officials sued
in an official capacity may be held liable under Section 1983.15 However, for the municipality or
local government unit to be liable, “a plaintiff must initially allege that an official policy or custom
‘was a cause in fact of the deprivation of rights inflicted.’”16
Here, the Magistrate Judge found that Plaintiff had not alleged that his inability to see a
doctor or to receive medication was the result of a policy or custom of the Defendants.17
Accordingly, the Magistrate Judge determined that Plaintiff failed to state a non-frivolous claim
which would entitle him to relief under Section 1983, and his claims should be dismissed with
prejudice.18
C.

Plaintiff’s Objections
Plaintiff objects to the Magistrate Judge’s recommendation.19 Plaintiff avers that he

14

Rec. Doc. 11 at 4.

15

Id. at 3 (citing 436 U.S. 658, 689 (1978)).

16

Id. (quoting Spiller v. City of Texas Police Dept., 130 F.3d 162, 167 (5th Cir. 1997) (quoting Leffall v.
Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994))).
17

Id. at 4.

18

Id.

19

Rec. Doc. 12.

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followed the jail’s grievance procedures, but he did not receive a response from jail officials.20 He
contends that he filled out at least eight request forms to see a doctor, but he did not receive a
response.21 He argues that the doctor visits the jail every week on Tuesday and Thursday, but jail
officials were avoiding Plaintiff’s requests.22 He asserts that it has now been four months, and he
still has not seen a doctor.23 He avers that there is something wrong with his knee, and he continues
to experience pain and suffering.24 He contends that his civil rights have been violated, and he
requests that the Court not dismiss his case.25 Finally, Plaintiff notes that he has been in the custody
of the Department of Corrections since December 5, 2016, but he still has not been transported to
a Department of Corrections facility where he could receive treatment for his knee injury.26
II. Standard of Review
A. Review of the Magistrate Judge’s Report and Recommendation
In accordance with Local Rule 73.2, this case was referred to the Magistrate Judge to
provide a Report and Recommendation. A district judge “may accept, reject, or modify the
recommended disposition” of a magistrate judge on a dispositive matter.27 A district judge must
“determine de novo any part of the [Report and Recommendation] that has been properly objected

20

Id. at 1.

21

Id.

22

Id.

23

Id.

24

Id.

25

Id.

26

Id. at 2.

27

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

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to.”28 A district court’s review is limited to plain error for parts of the report which are not properly
objected to.29
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 The law
“‘accords judges not only the authority to dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless.’”32 A claim has no arguable
basis in law if “it is based on indisputable meritless legal theory.”33 It lacks a basis in fact if “the
facts alleged are clearly baseless.”34 If a court finds that a prisoner’s claims are frivolous, the court
must dismiss the claims sua sponte.35
III. Law and Analysis
Plaintiff objects to the Magistrate Judge’s recommendation that his claims against
Defendants be dismissed because he has not alleged that his failure to see a doctor or his failure to

28

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

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).
29

30

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

31

Id.

32

Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994) (quoting Neitzke v. Williams,
490 U.S. 319, 327 (1989)).
33

Talib, 138 F.3d at 213.

34

Id.

35

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

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receive medication was the result of a policy or custom of the Defendants.36 Accordingly, the Court
reviews this issue de novo.
In Monell v. Department of Social Services of the City of New York, the United States
Supreme Court held that municipalities and municipal officials sued in an official capacity may be
held liable under Section 1983.37 To maintain a Section 1983 claim against a municipality, a
plaintiff must show that officials acted in accordance with an official policy or custom.38 Thus,
municipalities are not vicariously liable for rights violations committed by their employees, but
they are liable whenever “their official policies cause their employees to violate another person’s
constitutional rights.”39 The Supreme Court has instructed that:
it is not enough for a § 1983 plaintiff merely to identify conduct properly
attributable to the municipality. The plaintiff must also demonstrate that, through
its deliberate conduct, the municipality was the “moving force” behind the injury
alleged. That is, a plaintiff must show that the municipal action was taken with the
requisite degree of culpability and must demonstrate a direct causal link between
the municipal action and the deprivation of federal rights.40
Accordingly, to maintain a Section 1983 claim against Defendants Terrebonne Parish
Consolidated Government and the Terrebonne Consolidate Government, Plaintiff must allege that
officials acted in accordance with an official policy or custom to violate his constitutional rights.
Plaintiff had not alleged that the denial of his request to see a doctor or to receive medication was
the result of a policy or custom of the Defendants in either his complaint or his objections to the
36

Rec. Doc. 11.

37

Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 689 (1978).

38

James v. Texas Collin Cty., 535 F.3d 365, 375 (5th Cir. 2008) (citing Monell, 436 U.S. at 658).

39

City of St. Louis v. Praprotnik, 485 U.S. 112, 122 (1988); see also Beattie v. Madison Cty. Sch. Dist., 254
F.3d 595, 602 (5th Cir. 2001).
40

Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 404 (1997).

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Magistrate Judge’s Report and Recommendation. Accordingly, on de novo review, the Court
adopts the Magistrate Judge’s recommendation that Plaintiff’s claims against Defendants be
dismissed with prejudice as frivolous and for failure to state a claim upon which relief may be
granted pursuant to 28 U.S.C. § 1915, § 1915A, and 42 U.S.C. § 1997e.
IV. Conclusion
For the foregoing reasons, the Court adopts the Magistrate Judge’s Report and
Recommendation. Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s objections are OVERRULED;
IT IS FURTHER ORDERED that the Court ADOPTS the Report and Recommendation
issued by the Magistrate Judge;
IT IS FURTHER ORDERED that Plaintiff’s complaint is DISMISSED WITH
PREJUDICE as frivolous and for failure to state a claim upon which relief may be granted
pursuant to 28 U.S.C. § 1915, 28 U.S.C. § 1915A, and 42 U.S.C. § 1997e.
NEW ORLEANS, LOUISIANA, this ______day of April, 2017.
24th
__________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

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