Bagneris v. Cain

Filing 4

REPORT AND RECOMMENDATIONS regarding 1 Complaint filed by Terry Bagneris...It is recommended that the pltfs complaint be dismissed as frivolous pursuant to 28 USC 1915(e)(2)(B)(i)... Objections to R&R due by 2/18/2010. Signed by Magistrate Judge Stephen C. Riedlinger on 2/1/2010. (JDL, )

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

TERRY BAGNERIS (#152277) VERSUS BURL N. CAIN NOTICE Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U. S. District Court. In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT. Baton Rouge, Louisiana, February 1, 2010. CIVIL ACTION NUMBER 10-49-JVP-SCR

STEPHEN C. RIEDLINGER UNITED STATES MAGISTRATE JUDGE

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA TERRY BAGNERIS (#152277) VERSUS BURL N. CAIN CIVIL ACTION NUMBER 10-49-JVP-SCR MAGISTRATE JUDGE'S REPORT Pro se plaintiff, an inmate confined at Louisiana State Penitentiary, Angola, Louisiana, filed this action pursuant to 42 U.S.C. § 1983 against Warden Burl Cain. Plaintiff alleged that he

was denied due process by the Camp J Committee Review Board in violation of his constitutional rights. Subsection (c)(1) of 42 U.S.C. § 1997e provides the following: The court shall on its own motion or on the motion of a party dismiss any action brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility if the court is satisfied that the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. An in forma pauperis suit is properly dismissed as frivolous if the claim lacks an arguable basis either in fact or in law. Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733 (1992); Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1831-32 (1989); Hicks v. Garner, 69 F.3d 22, 24 (5th Cir. 1995). A court may

dismiss a claim as factually frivolous only if the facts are

clearly baseless, a category encompassing allegations that are fanciful, fantastic, and delusional. 112 S.Ct. at 1733. Denton, 504 U.S. at 33-34,

Pleaded facts which are merely improbable or

strange, however, are not frivolous for section 1915(d) purposes. Id.; Ancar v. SARA Plasma, Inc., 964 1992). F.2d 465, 468 (5th Cir.

Dismissal under 28 U.S.C. §1915(d) may be made at any time

before or after service of process and before or after an answer is filed. Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).

Plaintiff alleged that for the past four years he has been placed in restraints behind his back. Plaintiff alleged that the

Camp J Committee Review Board is required to conduct a hearing to determine whether the plaintiff should continue to be restrained behind his back. Plaintiff alleged that he has never appeared

before the Camp J Committee Review Board for a hearing in violation of his due process rights. Plaintiff named Warden Cain but failed to allege any

allegations against him. To be liable under § 1983, a person must either be personally involved in the acts causing the alleged deprivation of

constitutional rights, or there must be a causal connection between the act of that person and the constitutional violation sought to be redressed. Lozano v. Smith, 718 F.2d 756 (5th Cir. 1983).

Plaintiff's allegation that Warden Cain is responsible for the actions of his subordinates is insufficient to state a claim under

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§

1983.

Monell v. Department of Social Services, 436 U.S. 658, 98

S.Ct. 2018 (1978). Because it is clear that the plaintiff's claim against Warden Burl Cain has no arguable basis in fact or in law the complaint should be dismissed as frivolous pursuant to 28 U.S.C. §

1915(e)(2)(B)(i). RECOMMENDATION It is the recommendation of the magistrate judge that the plaintiff's complaint be dismissed as frivolous pursuant to 28 U.S.C. §1915(e)(2)(B)(i). Baton Rouge, Louisiana, February 1, 2010.

STEPHEN C. RIEDLINGER UNITED STATES MAGISTRATE JUDGE

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