Allen v. LeBlanc et al
ORDER denying 34 Motion for Access to Directory, MOTION to Amend Suit to Strategic Lawsuit Against Public Partners. Plaintiff shall have twenty-one (21) days from the date of this order to file any additional opposition to Defendant's 32 Motion to Dismiss. Signed by Magistrate Judge Erin Wilder-Doomes on 1/3/2017. (LLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CHARLES ALLEN (#484859)
SEC. JAMES LeBLANC, ET AL.
O R D E R1
Before the Court is Plaintiff=s Motion for Access to Directory/Motion to Amend Suit to
Strategic Lawsuit Against Public Partners (R. Doc. 34).
In his original Complaint, Pro se Plaintiff, an inmate confined at the Louisiana State
Penitentiary (ALSP@), Angola, Louisiana, filed this action pursuant to 42 U.S.C. ' 1983 against
The law is not settled regarding whether a motion to amend that is denied is a casedispositive motion under 28 U.S.C. § 636. “Generally, a motion for leave to amend the pleadings
is a nondispositive matter that may be ruled on by a magistrate judge pursuant to 28 U.S.C. §
636(b)(1).” Cazares v. Morris, 2011 WL 2414543, at *2 (D.Ariz. June 16, 2011) (citing, inter
alia, JJCO, Inc. v. Isuzu Motors America, Inc., 2009 WL 3818247, *2 (D.Haw. Nov. 12, 2009)
(magistrate Judge’s denial of a motion for leave to amend complaint is not a dispositive ruling)
(citing, in turn, U.S. Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099, 1102 n. 1
(9th Cir. 1985), superseded by statute on other grounds as recognized in Simpson v. Lear Astronics
Corp., 77 F.3d 1170 (9th Cir. 1996) (noting that the plaintiff’s motion for leave to amend its
Complaint was properly treated as a nondispositive motion when the magistrate judge granted the
plaintiff’s motion). There are circumstances, such as when a “magistrate judge denies a party the
opportunity to assert a new claim or defense[,]” or “when the denial is specifically premised on
futility[,]” that courts have “view[ed] a magistrate judge’s denial of a motion for leave to amend
as a dispositive ruling.” JJCO, Inc., supra, 2009 WL 3818247, at *3 (citing cases). That “view
is not universal[,]” as the court in JJCO, Inc. astutely observed, however. Id. at *3 (citing Hall v.
Norfolk S. Ry. Co., 469 F.3d 590, 595 (7th Cir. 2006) (finding a magistrate judge’s denial of a
motion to amend on grounds of futility to be nondispositive and subject to review for clear error
by the district court); Morgal v. Maricopa County Bd. Of Supervisors, 284 F.R.D. 452, 458
(D.Ariz. 2012). It does not appear that the Fifth Circuit has ruled on this issue. However, at least
one other court in this Circuit has held that a magistrate judge may conclusively decide a motion
for leave to amend, even one that results in a denial of leave. See Chesapeake Louisiana, L.P. v.
Innovative Wellsite Systems, Inc., 2014 WL 4387297 n. 1 (W.D. La. Sept. 4, 2014).
Secretary James LeBlanc, former Warden Burl Cain, Ass=t Warden Troy Poret, Major Trampus
Butler, Major Trent Barton, Mental Health Worker Roberta Barrow, Classification Officer
Raphael Augustine and Legal Programs Director Trish Foster.
Plaintiff complained that
Defendants violated his constitutional rights in September, 2014, by charging him with a false
disciplinary report in retaliation for Plaintiff=s exercise of his First Amendment right to complain
about the alleged wrongful conduct of correctional officers.
Plaintiff further complained that he
was found guilty of the false disciplinary charge and sentenced to punitive segregated confinement
at Camp J at LSP, where he was forced to shave his beard in violation of his religious beliefs.
Since the filing of the original Complaint, Plaintiff has filed a Motion for Summary
Judgment that has been denied as premature, see R. Docs. 22, 29 and 37, and Defendants have
filed a Motion to Dismiss that is currently pending before the Court.
See R. Doc. 32.
these motions have addressed the claims asserted in Plaintiff’s original Complaint.
In the instant “Motion to Amend” (R. Doc. 34), Plaintiff is now seeking to fundamentally
alter the nature of his original claims and to add numerous defendants, more than 30 in number,
who are entirely unrelated to the claims asserted in the original Complaint.
asserts in the instant motion that while perusing the American Heritage Dictionary, he learned of
a particular type of lawsuit, which lawsuit is purportedly denominated a “Strategic Lawsuit
Against Public Partners” or “SLAPP” lawsuit and which lawsuit, he believes, is appropriate for
the assertion of new far-reaching claims of conspiracy to violate his constitutional rights.
Court understands the rambling allegations of Plaintiff’s proposed amended complaint, it appears
that the claims sought to be added relate back to years before he was convicted of the offense for
which he is currently incarcerated and involve a purported conspiracy among, inter alia, (1)
members of a religious sect or “cult” to which Plaintiff’s father belonged in Plaintiff’s youth, “The
Family International” or “Children of God,” (2) supervising employees of the Home Depot
Corporation for which Plaintiff allegedly performed contracting services before his incarceration,
and (3) officials employed by the Louisiana Department of Public Safety and Corrections
thereafter. Plaintiff alleges that members of the religious sect subjected Plaintiff to disciplinary
measures beginning more than ten years before his conviction when he refused to submit to sexual
abuse by cult members and that the cult later ultimately directed or induced Plaintiff to commit the
murder for which he was later convicted.
Plaintiff further alleges that he was subjected to
hypnosis by employees of The Home Depot Corporation and later by officials at the Department
of Corrections after his incarceration, apparently at the behest of the religious group.
further alleges the involvement of former President George Bush and the Central Intelligence
Agency in the referenced conspiracy, and he ultimately complains that both his current
incarceration and a pattern of abuse and harassment at LSP since his incarceration, including
“repeated defamations, beatings, gassings, electric shock” and false disciplinary charges, are a
continuation of the referenced conspiracy, all for the purpose of maintaining his silence and
See R. Doc. 34 at p. 10. Plaintiff seeks to add as defendants to this proceeding,
inter alia, members of the religious group, employees of the Home Depot Corporations, former
President George Bush, members of his own family, members of the family of his murder victim,
police detectives involved with his original prosecution, his criminal defense attorney, and
numerous officials employed by the Louisiana Department of Corrections.
Pursuant to Rule 15(a)(1) of the Federal Rules of Civil Procedure, “[a] party may amend
its pleading once as a matter of course within … 21 days after serving it, or … 21 days after service
of a motion under Rule 12(b) ….”
In all other cases, a party may amend its pleading only with
the consent of the opposing party or the Court, provided that leave to amend should be freely
granted when justice requires.
See Fed. R. Civ. P. Rule 15(a)(2).
Although it has been
recognized that Rule 15 evinces a strong bias in favor of granting a motion for leave to amend, see
Jackson v. Walker, 2014 WL 1912362, *2 (W.D. La. May 13, 2014), the Court may deny such
leave when the amendment would be futile, as where it would assert a non-meritorious or frivolous
claim that would not survive a Rule 12(b)(6) motion to dismiss.
See also Jewell v. Bell, 388
Fed. Appx. 435 (5th Cir. 2010); Soliz v. Bennett, 150 Fed. Appx. 282 (5th Cir. 2005).
Upon a review of Plaintiff’s Motion to Amend in the instant case, the Court concludes that
the proposed amendment should not be allowed.
In the first place, it does not appear that the
amendment is one to which Plaintiff is entitled as of right in accordance with Rule 15(a)(1).
Specifically, it appears from the Docket Sheet that Defendants were served with Plaintiff original
Complaint on or about January 7, 2016, and the instant Motion to Amend, filed in April 2016, was
not filed within 21 days of such service.
Further, the Motion to Amend may not be seen to have
been filed in response to either the filing or service of Defendants’ pending Motion to Dismiss
pursuant to Rule 12(b).
Whereas the Court’s Docket Sheet appears to reflect that Plaintiff’s
Motion to Amend was filed after the filing of Defendants’ 12(b) Motion to Dismiss, Plaintiff’s
Motion to Amend was in fact filed, as a matter of law, three weeks previously, on or about April
6, 2016 when he signed and submitted the Motion to prison officials for transmission to the Court.
See R. Doc. 34 at p. 23.
This is because, pursuant to the so-called “prison mailbox rule,” a
pleading filed by an incarcerated prisoner is deemed to be filed, not when it is received and/or
docketed by the Court, but when the prisoner places the pleading into the prison mailing system.
See Cooper v. Brookshire, 70 F.3d 377, 379-80 (5th Cir. 1995); Vicks v. Griffin, 2008 WL 553186,
*3 (E.D. La. Feb. 28, 2008).
Thus, Plaintiff’s Motion to Amend may not be seen to have been
filed after service of Defendants’ Rule 12(b) motion or in response thereto, and the Court therefore
has discretion under Rule 15(a)(2) to evaluate and address the propriety of granting Plaintiff leave
to amend the Complaint in this instance.
Upon a review of Plaintiff’s Motion to Amend and proposed Amended Complaint, the
Court concludes that the proposed amendment would be futile and that granting leave to amend
would be ill-advised. Without undertaking a detailed legal and factual analysis in connection
with Plaintiff’s additional factual allegations, it appears clear that his claims, for the most part, are
barred by passage of the one-year limitations period applicable to claims brought pursuant to 42
U.S.C. § 1983.
Treadwell v. St. Tammany Parish Jail, 599 Fed. Appx. 189 (5th Cir. 2015), citing
Elzy v. Roberson, 868 F.2d 793 (5th Cir. 1989).
Further, many of the persons sought to be added
as defendants are not state actors subject to liability under § 1983, as required by that statute,
because they are not alleged to have been acting under color of state law when they engaged in the
conduct complained of by Plaintiff.
Finally, Plaintiff’s claims regarding a far-reaching
conspiracy dating back many years are entirely conclusory and are, for the most part, delusional
and unsupported by his factual allegations. And to the extent that he seeks to name as defendants
officials who are employed by the Louisiana Department of Corrections and seeks to complain of
events that have allegedly occurred more recently at LSP, Plaintiff does little more than provide
the names of such officials, and he provides no factual allegations regarding the actual events of
which he complains, the dates that they allegedly occurred, or the manner in which each such
official was personally and directly involved in those events.
See Lozano v. Smith, 718 F.2d 756,
768 (5th Cir. 1983) (holding that a state official must be shown to have been personally and directly
involved in conduct causing an alleged deprivation of an inmate’s constitutional rights or shown
to have had a causal connection therewith). See also Bell v. Livingston, 356 Fed. Appx. 715, 71617 (5th Cir. 2009) (recognizing that “[a] supervisor may not be held liable for a civil rights
violation under any theory of respondeat superior or vicarious liability”).
Nor does it appear that
Plaintiff’s claims have been administratively exhausted as mandated by 42 U.S.C. § 1997e.
Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998) (explaining that § 1997e “plainly requires that
administrative remedies be exhausted before the filing of a § 1983 suit, rather than while the action
is pending”), overruled by implication on other grounds, Jones v. Bock, 549 U.S. 199 (2007).
Thus, the Court finds that the claims asserted in Plaintiff’s proposed Amended Complaint would
not apparently survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which
relief may be granted, and the Court declines to grant leave to amend the Complaint to add such
The Court further notes that Plaintiff’s pleadings evidence some confusion
regarding his attempt to convert his Complaint into a purported “SLAPP” lawsuit. Contrary to
Plaintiff’s assertions, his claims do not fit neatly into the SLAPP context, and there is no benefit
associated with asserting a claim in such a lawsuit. In fact, it appears that such lawsuits are
disfavored under the law. As stated by the Louisiana Court of Appeal for the Fifth Circuit in
Yount v. Handshoe, 171 So.3d 381 (La. App. 5th Cir. 2015):
“SLAPP” is an acronym for Strategic Lawsuit Against Public Participation, a term first
coined … to describe generally meritless suits brought by large private interests to deter
common citizens from exercising their constitutional right to petition or to punish them for
doing so…. Courts have difficulty identifying these suits which masquerade as ordinary
lawsuits, most often in the form of defamation or a business tort. SLAPP suits consist of
a civil complaint or counter claim (form monetary damages and/or injunction) filed against
non-governmental individuals and/or groups because of their communications to a
government body … on an issue of some public interest or concern. Typical examples of
SLAPP suits include cases brought by 1) police, teachers, and other public officials and
employees against their critics; 2) landlords against tenants reporting problems to the city
health inspectors; 3) business against consumers reporting problems with their products or
service; and 4) by dumps, toxic waste incinerators, bars, and other less-than-attractive
enterprises against their NIMBY (“Not-In-My-BackYard”) homeowner opponents. At
their heart, SLAPP suits threaten a citizen’s right to petition because the mere filing of the
suit limits public participation in the political process.
Id. at 387 (citations omitted). As a result of a perceived increase in the use of such disfavored
SLAPP lawsuits, states have enacted so-called anti-SLAPP statutes that provide a procedural
mechanism for summary dismissal of same based upon a special motion to strike. In Louisiana,
such an anti-SLAPP statute is codified at article 971 of the Louisiana Code of Civil Procedure.
Accordingly, in the exercise of its discretion, the Court declines to allow Plaintiff leave to
amend his Complaint to assert the referenced claims and to add additional parties herein.
IT IS ORDERED that Plaintiff=s Motion for Access to Directory/Motion to Amend Suit
to Strategic Lawsuit Against Public Partners (R. Doc. 34) is hereby DENIED.
IT IS FURTHER ORDERED that Plaintiff shall have twenty-one (21) days from the date
of this Order to file any additional opposition he may have to Defendants’ pending Motion to
Dismiss (R. Doc. 32).
Signed in Baton Rouge, Louisiana, on January 3, 2017.
UNITED STATES MAGISTRATE JUDGE
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