Carter v. Calcasieu Parish et al

Filing 11

REPORT AND RECOMMENDATIONS recommending that the 1 Complaint filed by Darrel T Carter be DISMISSED WITH PREJUDICE as frivolous and for failing to state a claim for which relief may be granted. IT IS FURTHER RECOMMENDED that the 7 MOTION for Production of Public Records filed by Darrel T Carter be DISMISSED AS MOOT. Objections to R&R due by 1/21/2014. Signed by Magistrate Judge Kathleen Kay on January 2, 2014. (crt,Benoit, T)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

DARREL TREMAINE CARTER

:

CIVIL ACTION NO: 2:13-cv-2323

:

SECTION P

:

JUDGE TRIMBLE

:

MAGISTRATE JUDGE KAY

VERSUS
SHERIFF’S OFFICE CALCASIEU
PARISH, ET AL

REPORT AND RECOMMENDATION

Pro se plaintiff Darrel T. Carter, proceeding in forma pauperis, filed the instant civil
rights complaint on July 22, 2013.

Plaintiff is an inmate in the custody of Louisiana’s

Department of Public Safety and Corrections (LDOC) and is currently incarcerated at Calcasieu
Correctional Center (CCC), Lake Charles, Louisiana.
Plaintiff names the following as defendants: Calcasieu Parish Sheriff’s Office
(CPSO), CCC Assistant Wardens Charles Lavergne and Boyd, CCC Warden Dean Burkhalter,
Calcasieu Parish Sheriff Tony Mancuso, the Fourteenth Judicial District Court, and the LDOC.
This matter has been referred to the undersigned for review, report, and
recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of
the court.
I. Background
Plaintiff contends that he has been subjected to retaliation for filing grievances. Doc. 1,
pp. 4-5. He claims that shortly after filing a request for administrative remedy he was placed in a
cell with an HIV positive inmate. Id. As a result of this action by the defendants, plaintiff

-1-

claims that his life and health are in danger. Id. He seeks a thorough medical examination,
damages for mental anguish, and to have CCC investigated for corruption. Id. at 6.
Plaintiff also claims that he has been held at least a year past his release date. Doc. 1, p.
3. He states, “I had enough time served before 1-25-13 incarceration and the February 1, 2013
signing of my probation revocation papers before my May 22, 2013 probation hearing whereas I
was given credit for time served with all charges except for any new charges ran concurrently.”
Id. at 5. As a result of allegedly being unlawfully held plaintiff seeks immediate release and
$200, 000.00 for lost wages. Id. at 6.
II. Law and Analysis
A. Screening
Plaintiff has been granted leave to proceed in forma pauperis under 28 U.S.C. § 1915.
Under 28 U.S.C. § 1915(e)(2)(B), a district court is directed to dismiss an action if the court
determines that the action is frivolous or malicious or fails to state a claim upon which relief can
be granted. See 28 U.S.C. § 1915(e)(2)(B)(i) and (ii); Bradley v. Puckett, 157 F.3d 1022, 1025
(5th Cir.1998).
A complaint is frivolous if it lacks an arguable basis in law or fact. Gonzalez v. Wyatt,
157 F.3d 1016, 1019 (5th Cir.1998) citing Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.
1997). A complaint fails to state a claim upon which relief may be granted if it is clear the
plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief.
Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215 (5th Cir.1998). When determining whether a
complaint is frivolous or fails to states a claim upon which relief may be granted, the court must
accept plaintiff's allegations as true. Horton v. Cockrell, 70 F.3d 397, 400 (5th Cir.1995)
(frivolity); Bradley, 157 F.3d at 1025 (failure to state a claim).

-2-

B. Habeas Corpus Related Claims
In his request for relief plaintiff seeks release from confinement.
A civil rights proceeding is not an appropriate avenue for pursuing release from
confinement. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). A habeas petition, on the other
hand, is the proper vehicle to seek release from custody. See Pugh v. Parish of St. Tammany,
875 F.2d 436, 439 (5th Cir.1989). Plaintiff should pursue any such relief in a properly filed
federal habeas corpus proceeding, if appropriate.
C. 42 U.S.C. § 1983
Section 1983 proscribes conduct by any person who, under the color of state law, acts to
deprive another person of any right, privilege, or immunity secured by the Constitution and laws
of the United States. 42 U.S.C. §1983. Thus, an initial inquiry in a lawsuit filed under §1983 is
whether plaintiff has alleged that his constitutional rights have been violated. If no constitutional
violation has been alleged, there is no cognizable claim under §1983. In order to hold the
defendants liable under 42 U.S.C. §1983, the plaintiff must allege facts to show (1) that a
constitutional right has been violated and (2) that the conduct complained of was committed by a
person acting under color of state law, that is, that the defendant was a state actor.

See

Hessbrook v. Lennon, 777 F.2d. 999, 1005 (5th Cir.1985).
a. Improper Defendants
The court notes that several parties to this action do not have the capacity to be sued.
Federal Rule of Civil Procedure 17(b) provides that the “[c]apacity to sue or be sued shall
be determined … by the law of the state where the court is located.” Thus, Louisiana law
governs whether the named entities have the capacity to be sued in this action. Under Louisiana
law, to possess such a capacity, an entity must qualify as a “juridical person.” This term is

-3-

defined in the Louisiana Civil Code as “... an entity to which the law attributes personality, such
as a corporation or partnership.” La. Civ.Code Ann. art. 24.
i. Calcasieu Parish Sheriff’s Department
The Calcasieu Parish Sheriff’s Department is not a proper party to this action.
In Louisiana, correctional centers are not legal entities capable of suing or being sued.
Ruggiero v. Litchfield, 700 F. Supp. 863, 864 (M.D. La.1988). The State of Louisiana has not
granted juridical status to Calcasieu Parish Sheriff’s Department nor to any parish sheriff’s
office. Liberty Mutual Ins. Co. v. Grant Parish Sheriff’s Dept., 350 So.2d 236 (La.App. 3rd Cir.
8/30/77). Thus, the Calcasieu Parish Sheriff’s Department is not a juridical person capable of
being sued under 42 U.S.C. § 1983 and should be dismissed from this suit
ii. The Louisiana Department of Corrections
Plaintiff’s claims against the LDOC are not viable because state agencies are not
“persons” within the meaning of 42 U.S.C. § 1983. Stotter v. Univ. of Tex. at San Antonio, 508
F.3d 812, 821 (5th Cir.2007); Will v. Michigan State Dep't of Police, 491 U.S. 58, 71 (1981).
Furthermore, the Eleventh Amendment bars lawsuits against a state agency if the agency is so
closely connected to the state that the state itself is the party in interest. See Vogt v. Board of
Comm’rs of the Orleans Levee District, 294 F.3d 684, 688-89 (5th Cir.2002). Additionally, the
Fifth Circuit has previously found that the Louisiana Department of Public Safety and
Corrections is protected from suit by the Eleventh Amendment. See Champagne v. Jefferson
Parish Sheriff’s Office, 188 F.3d 312 (5th Cir.1999). Thus, plaintiff’s action against the LDOC
is barred and should be dismissed with prejudice.

-4-

iii. Fourteenth Judicial District Court
As previously stated, Louisiana law governs whether the court is an entity which
can be sued, i.e. whether it qualifies as a Ajuridical person.@ Fed. R. Civ. P. 17(b). Under these
guidelines (Fed. R. Civ. P. 17(b) and La. Civ. Code Ann. art. 24), the Fourteenth Judicial District
Court is a non-juridical entity and is not capable of being sued. See Moity v. Louisiana St. Bar
Assn., 414 F.Supp. 180, 182 (E.D. La.1976) (“state courts are not considered ‘persons’ within the
meaning of § 1983.”), aff’d, 537 F.2d 1411 (5th Cir.1976).
b. Investigation of CCC
Plaintiff requests that the court order an investigation of CCC for corruption.
This type of relief is not available through this complaint. The court’s duty is to review
the plaintiff’s compliant for alleged violations of his constitutional rights. Thus, plaintiff has
failed to state a claim for which relief may be granted.
c. Retaliation
Plaintiff claims that he was put in a cell with an HIV positive inmate as an act of
retaliation for filing grievances.
Prison officials may not retaliate against an inmate because that inmate exercised a right
guaranteed to him under the Constitution. Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995),
cert. denied, 516 U.S. 1084, 116 S.Ct. 800, 133 L.Ed.2d 747 (1996). However, as the Fifth
Circuit has emphasized, claims of retaliation from prison inmates must “be regarded with
skepticism, lest federal courts embroil themselves in every disciplinary act that occurs in penal
institutions.” Id. at 1166.
To state a claim of retaliation, a prisoner must allege facts which establish that (1) he
exercised a specific constitutional right, (2) the defendant had the intent to retaliate against him

-5-

for his exercise of that right, (3) a retaliatory adverse act occurred, and (4) causation. Causation
requires a showing that “but for the retaliatory motive the complained of incident ... would not
have occurred.” Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997) (quoting Woods v.
Smith, 60 F.3d 1161, 1166 (5th Cir. 1995)), cert. denied, 522 U.S. 995, 118 S.Ct. 559, 139
L.Ed.2d 400 (1997). “The inmate must allege more than his personal belief that he is the victim
of retaliation.” Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999). “The inmate must
produce direct evidence of motivation or, the more probable scenario, allege a chronology of
events from which retaliation may plausibly be inferred.” Id. (quoting Woods v. Smith, 60 F.3d
1161, 1166 (5th Cir. 1995).
Plaintiff’s complaint makes conclusory allegation in support of his claim.

Such

allegations of retaliatory motive are not sufficient to evidence a pattern of retaliation or motive
for same. Plaintiff’s allegations of retaliation are insufficient to state a claim and should be
dismissed.
d. No Actual Injury
To state a claim under 42 U.S.C. § 1983, plaintiff must allege an actual injury caused by
the defendants' acts.

See Brock v. Sparkman, 101 Fed. Appx. 430 (5th Cir.2004) (citing

Memphis Community School Dist. v. Stachura, 477 U.S. 299, 308-09 (1986)) (prisoner who had
bumps and bruises from repeatedly hitting his head on bunk bed had no cognizable injury);
Jackson v. Culbertson, 984 F.2d 699, 700 (5th Cir.1993) (excessive force claim dismissed as
frivolous when prisoner suffered no injury).
In this case, plaintiff has not alleged an injury caused by his placement in the cell with an
inmate with HIV. Plaintiff merely seeks monetary damages for mental anguish and suffering
without alleging he suffered any health problems as a result of defendants’ actions.

-6-

According to the Prison Litigation Reform Act “[n]o Federal civil action may be brought
by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional
injury while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e, Siglar v.
Hightower, 112 F.3d 191, 193-94 (5th Cir.1997). For purposes of this statute, the physical injury
must be more than de minimis. Id.
As previously stated, plaintiff has not alleged even a de minimis injury sufficient to
support a claim for emotional or mental suffering and his claims should be dismissed.
e. Unlawful Imprisonment and Heck v. Humphrey
Plaintiff states that his continued incarceration is illegal as he is being held past his
release date. As such, he contests his detention and seeks compensatory damages for the
wrongful detention. However, his claims are barred until such time as the conviction or sentence
in question has been declared invalid.
The United States Supreme Court held that in order to recover monetary compensation
for an allegedly unconstitutional conviction or sentence or for “harm caused by actions whose
unlawfulness would render a conviction or sentence invalid,” a prisoner must show that the
conviction or sentence has been “reversed on direct appeal, expunged by executive order,
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.” Heck v. Humphrey, 512 U.S. 477,
486-487 (1994). Thus, when a state prisoner seeks damages in a § 1983 suit, the district court
must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity
of his conviction or sentence and, if it would, the complaint must be dismissed unless the
plaintiff can demonstrate that the conviction or sentence has already been invalidated. Heck, at
486-487.

-7-

Under Heck, plaintiff must demonstrate that his sentence has been reversed, invalidated,
or expunged prior to bringing the instant action. Plaintiff has failed to make such a showing.
Thus, his claim for monetary damages fails to meet the above standard and should be dismissed
as frivolous.
III. Conclusion
For the reasons stated,
IT IS RECOMMENDED that plaintiff’s civil rights complaint be DISMISSED WITH
PREJUDICE as frivolous and for failing to state a claim for which relief may be granted
pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B)(i), (ii), and (iii).
IT IS FURTHER RECOMMENDED that plaintiff’s Motion for Production of Public
Records [doc. 7] be DISMISSED AS MOOT.
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Rule 72(b), parties aggrieved by
this recommendation have fourteen (14) days from service of this report and recommendation to
file specific, written objections with the Clerk of Court. A party may respond to another party’s
objections within fourteen (14) days after being served with a copy of any objections or response
to the district judge at the time of filing.
Failure to file written objections to the proposed factual findings and/or the
proposed legal conclusions reflected in this Report and Recommendation within fourteen
(14) days following the date of its service, or within the time frame authorized by
Fed.R.Civ.P. 6(b), shall bar an aggrieved party from attacking either the factual findings or
the legal conclusions accepted by the District Court, except upon grounds of plain error.
See, Douglass v. United Services Automobile Association, 79 F.3d 1415 (5th Cir. 1996).

-8-

THUS DONE this 2nd day of January, 2014.

-9-