Ainsworth v. LeBlanc et al

Filing 4

REPORT AND RECOMMENDATIONS regarding 1 Complaint. It is the recommendation of the magistrate judge that this action be dismissed pursuant to 28 U.S.C. §1915(e)(2)(B)(i) and(iii). Objections to R&R due by 3/26/2012. Signed by Magistrate Judge Stephen C. Riedlinger on 3/7/2012. (CMM) Modified on 3/7/2012 to edit text. (CMM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

MARION J. AINSWORTH JR. (#418677)
VERSUS

CIVIL ACTION

JAMES LEBLANC, ET AL

NUMBER 12-133-BAJ-SCR
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, March 7, 2012.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

MARION J. AINSWORTH JR. (#418677)
VERSUS

CIVIL ACTION

JAMES LEBLANC, ET AL

NUMBER 12-133-BAJ-SCR
MAGISTRATE JUDGE’S REPORT

Pro se plaintiff, an inmate confined at Dixon Correctional
Institute, Jackson, Louisiana, filed this action pursuant to 42
U.S.C. § 1983 against Louisiana Department of Public Safety and
Corrections Secretary James M. Leblanc, Louisiana Parole Board
members C.A. Lowe, Mr. Jacobs, Mr. Wise and parole officer Kevin
Wyles.

Plaintiff alleged that his parole was revoked and he was

re-incarcerated

in

violation

of

his

constitutional

rights.

Specifically, the plaintiff alleged that he was released by virtue
of earned good time but then his good time parole was subsequently
revoked

and

Department
sentence.

he
of

was

returned

to

the

physical

Public

Safety

and

Corrections

custody
to

of

the

complete

his

Plaintiff alleged that there was no basis to revoke his

parole and the Parole Board was without legal authority to do so.
Plaintiff sought monetary damages and restoration of parole.
Applicable Law and Analysis
Subsection (c)(1) of 42 U.S.C. § 1997e provides the following:
(c) Dismissal.--(1) 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).

First,

the

plaintiff

named

Secretary

LeBlanc

and

parole

officer Wyles as defendants but failed to allege any facts against
them which rise to the level of a constitutional violation.
To be liable under § 1983, a person must either be personally
involved

in

the

acts

causing

2

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).

Second, to the extent that the plaintiff filed this action
against members of the Louisiana Board of Parole responsible for
revoking his parole, the claim fails to state a claim upon which
relief can be granted.
Parole board members are absolutely immune from suit for their
decisions to grant, deny, or revoke parole.

Hulsey v. Owens, 63

F.3d 354 (5th Cir. 1995).
Third, the plaintiff’s claim regarding revocation of his
parole must initially be pursued through habeas corpus since it
challenges the duration of confinement, the resolution of which
claim may entitle him to immediate or early release.

Serio v.

Members of La. State Bd. of Pardons, 821 F.2d 1112 (5th Cir. 1987).
Additionally, unless the plaintiff can demonstrate that a
state court or other authorized tribunal has determined that his
parole was improperly revoked, he has no damages claim cognizable
under § 1983. See, Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364
(1994)

(to

recover

damages

for

an

allegedly

unconstitutional

conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,
a § 1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,

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declared invalid by a state tribunal authorized to make such
determination,

or

called

into

question

by

a

federal

court's

issuance of a writ of habeas corpus).
Because Heck dictates that a cause of action seeking damages
under § 1983 for an allegedly unconstitutional imprisonment does
not accrue until the length of imprisonment has been invalidated,
the

§

1983

complaint

should

be

dismissed

with

prejudice.

Stephenson v. Reno, 28 F.3d 26 (5th Cir. 1994); Boyd v. Biggers, 31
F.3d 279 (5th Cir. 1994); Arvie v. Broussard, 42 F.3d 249 (5th Cir.
1994).
Because it is clear that the plaintiff’s claims have no
arguable basis in fact or in law and the allegations fail to state
a claim, the complaint should be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)(i) and (iii).
RECOMMENDATION
It is the recommendation of the magistrate judge that this
action be dismissed pursuant to 28 U.S.C. §1915(e)(2)(B)(i) and
(iii).
Baton Rouge, Louisiana, March 7, 2012.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

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