Boutte v. Clay et al

Filing 8

MEMORANDUM ORDER, IT IS ORDERED that Boutte amend his complaint within 30 days of the filing of this order to cure deficiencies outlined. Signed by Magistrate Judge Kathleen Kay on 6/6/2017. (crt,FinnSld, P)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

MELVIN BRADLEY BOUTTE
B.O.P. # 13611-035

:

CIVIL ACTION NO. 2:16-cv-1377
SECTION P

VERSUS

:

JUDGE MINALDI

KEITH COOLEY, ET AL

:

MAGISTRATE JUDGE KAY

MEMORANDUM ORDER

Before the court is the civil rights action filed in forma pauperis by pro se plaintiff Melvin
Bradley Boutte (“Boutte”).1 Boutte is an inmate in the custody of the Federal Bureau of Prisons
and is incarcerated at FCI-Forrest City Low in Forrest City, Arkansas. However, he complains of
events that occurred while he was incarcerated at FCI-Oakdale (“FCIO”) in Oakdale, Louisiana.
As defendants, he names FCIO Warden Becky Clay; FCIO Lieutenants Morgan and DeVille;
FCIO officers M. Bergeron, R. Smith, Teddy Desholel, and K. Clostner; Nurse Perkins; and
Counselor Odom.
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.

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This matter arises under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 91 S.Ct. 1999 (1971),
which authorizes civil rights suits against federal agents or employees for a violation of a constitutional right
comparable to the statutory cause of action permitted against state officials by 42 U.S.C. § 1983.

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I.
BACKGROUND
Boutte states that on November 11, 2014, he was cleaning up in the inner east serving line
in food services when one of his coworkers retrieved scalding water from the back cooking area
in order to clean the floor. Doc. 1, att. 2, p. 3. Boutte claims that the coworker dumped the hot
water under the serving line, which went into his boot and caused burns to his leg and foot. Id.
Boutte states that he was “hollering and rushing to take [his] boot and sock off.” Id. He claims that
a co-worker brought a bucket of cold water for him to put his foot in and then the coworker told
FCIO officer Bergeron about Boutte’s injury. Id. Bergeron looked at Boutte’s foot and called
medical to inform them that Boutte was on his way there. Id. at 3–4. Boutte states that he walked
to the nurse’s station where he was treated by Nurse Perkins. Id. at 4. He claims that his foot looked
worse the next day and that Dr. Galante diagnosed him with second degree burns and prescribed
pain medication. Id.
At the time of the incident, Boutte alleges that defendant Bergeron was in charge of the
serving line and defendant Smith was in charge of the back cooking area. Id. at 3. Boutte contends
that Bergeron and Lt. Morgan were talking when the accident occurred and that his injuries resulted
from the lack of supervision in the kitchen serving area. Id. at 2–4. In his administrative remedy
filings he alleged that Smith, Bergeron, and Morgan were inattentive to their jobs, failed to observe
safety precautions, and failed to file an incident report and/or report the incident to the safety
department. Id. at 26–28, 59–61, 63–64, 70–73. Boutte contends that had Smith, Bergeron, and
Morgan been paying attention to their jobs, they would have stopped the other inmate from
retrieving the hot water and throwing it on the floor as such actions are in violation of safety
protocol. Id. Boutte’s claims about the alleged failure to file a report appear to be that had a report
been filed, the safety department would have taken pictures of his injuries. E.g., id. at 28. Boutte
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further states that Morgan is an operations lieutenant and that it was Morgan’s job to make sure
that Bergeron and Smith supervised the inmate workers to ensure that the inmates followed all
safety protocols. Id. at 64. As to Nurse Perkins, Boutte contends that she, too, failed to file an
incident report and/or report the incident to the safety department, resulting in the safety
department failing to take photographs of his injuries. Id. at 46.
As relief for the above, Boutte seeks $740,000.00 for unspecified damages. Doc. 1, p. 4.
II.
APPLICABLE LAW
A. Frivolity Review
Boutte has been granted leave to proceed in forma pauperis under 28 U.S.C. § 1915. This
act directs a district court to dismiss an action if the court determines that it is frivolous or malicious
or fails to state a claim on which relief may be granted. Bradley v. Puckett, 157 F.3d 1022, 1025
(5th Cir. 1998) (citing 28 U.S.C. § 1915(e)(2)(B)(i) and (ii)).
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). 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 state 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 v. Puckett, 157 F.3d at 1025 (failure to state a claim).
B. 42 U.S.C. § 1983
Federal law provides a cause of action against any person who, under the color of 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 the initial question is whether the plaintiff has alleged
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that his constitutional rights have been violated. If no constitutional violation has been alleged,
there is no cognizable claim that would entitle plaintiff to relief. In order to hold the defendants
liable, a 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. West v. Atkins, 108 S.Ct. 2250, 2254–55 (1988).
C. Rule 8 Considerations
Rule 8 of the Federal Rules of Civil Procedure requires a pleading containing a claim for
relief to contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” FED. R. CIV. P. 8(a)(2). Under Rule 8, the complaint must allege “sufficient facts from
which the court can determine the existence of subject matter jurisdiction and from which the
defendants can fairly appreciate the claim made against them.” Bynum v. Terrebonne Parish
Consol. Gov’t, 2011 WL 6654985, *3 (E.D. La. Nov. 8, 2011) (citations omitted). Thus Boutte
should amend his complaint to provide:
(1) a description of what each named defendant did to violate his
rights;2
(2) the place and date that each event occurred;
(3) a description of the alleged injury sustained as a result of the alleged
violation. This description should provide sufficient detail to enable the
court to determine the seriousness of the injury, if any, he alleges he
sustained;
(4) for what damages does he seek the requested award of monetary
damages (i.e. Boutte should explain to the court, in his own words, the
basis for which he seeks the damages); and
(5) the date that he was transferred from FCIO.

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Boutte has not stated allegations against Lt. DeVille, Officer Bennett, Counselor Odom, Teddy Desholel, or K.
Clostner.
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Additionally, Boutte should describe all claims he wishes to raise in this proceeding rather than
simply attaching copies of prior proceedings and leaving this court to sort through them in an
attempt to discern which claims he wishes to renew.
D. Theories of the Complaint
Boutte’s complaint must provide the factual elements listed above as well as reflect the
legal considerations applicable to each theory of recovery.
1. Limitations
The statute of limitations in a Bivens action is governed by state law. Gaspard v. United
States, 713 F.2d 1097, 1102 n. 11 (5th Cir. 1983). In this case, Boutte’s claims are delictual in
nature and therefore subject to a one year period of liberative prescription under Article 3492 of
the Louisiana Civil Code. Gray v. Negi, 2012 WL 1014983, *3 (W.D. La. Mar. 23, 2012) (citing
Hawkins v. McHugh, 46 F.3d 10, 12 (5th Cir. 1995)). As with § 1983 claims, the date of accrual
for a Bivens claim begins when the plaintiff knows or has sufficient information to know that he
has been injured. Id. (citing Piotrowski v. City of Houston, 51 F.3d 512, 516 (5th Cir. 1995)).
Therefore it appears that the prescriptive period began run against Boutte’s claims when he was
injured on November 11, 2014, making his complaint filed on September 30, 2016, potentially
untimely. However, the Fifth Circuit also notes that the time in which a prisoner exhausts
administrative remedies is not counted toward the prescriptive period. Daley v. Miceli, 2013 WL
5516467, *3 (W.D. La. Oct. 2, 2013) (citing Harris v. Hegmann, 198 F.3d 153, 158 (5th Cir.
1999)). Accordingly, Boutte should state all the dates his various claims accrued and the dates his
administrative remedies were pending in order to show that his claims have not prescribed.

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2. Failure to Supervise
Boutte asserts that Lieutenant Morgan, as an operations lieutenant, failed to make sure that
Bergeron and Smith supervised the inmate workers to ensure that the inmates followed all safety
protocols. To state a claim based on inadequate training or supervision, the plaintiff must plead
sufficient facts to show (1) that the supervisor failed to train or supervise the subordinate official,
(2) a causal link between the failure to train or supervise a subordinate and the violation of a
constitutional right and (3) that the failure to train or supervise amounts to deliberate indifference.
Cook v. City of Dallas, 2015 WL 7352121, *5 (N.D. Tex. Aug. 23, 2015) (citing Mesa v. Prejean,
543 F.3d 264, 274 (5th Cir. 2008)). Deliberate indifference is “a stringent standard of fault,”
distinguishable from both negligence and gross negligence. Estate of Davis ex rel. McCully v. City
of North Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005) (citation omitted); Conner v. Travis
Cty., 209 F.3d 794, 796 (5th Cir. 2000).
Boutte should amend his complaint to state a claim upon which relief may be granted as
indicated above or dismiss the claims.
3. Negligence
Boutte states that defendants Smith, Bergeron, and Morgan were inattentive to their jobs
and they been paying attention, they would have stopped the other inmate from retrieving the hot
water and throwing it on the floor. At best, his allegations set forth a claim for negligence against
these individuals. Claims to recover damages for personal injuries resulting from the alleged
negligence of defendants are not cognizable under § 1983 or Bivens. Wooley v. Patterson, 2015
WL 5055391, *3 (W.D. La. 2015) (citing Bowie v. Procunier, 808 F.2d 1142 (5th Cir. 1987)).
Boutte should amend these claims to show how they rise to a constitutional level or dismiss them
from the instant action.

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4. Supervisory Liability
Boutte has not stated a sustainable claim against Warden Clay. It is clear that this party is
named in her supervisory capacity. Supervisory officials may not be held liable under § 1983 under
the doctrine of respondeat superior. See Mouille v. City of Live Oak, 977 F.2d 924 (5th Cir. 1992).
To be liable, a supervisory official must be personally involved in the act causing the alleged
constitutional deprivation, or must have implemented a policy so deficient that the policy itself
acts as a deprivation of constitutional rights. Cronn v. Buffington, 150 F.3d 538, 544 (5th Cir.
1998). Boutte has named Warden Clay as a defendant but has not alleged personal involvement on
her part or that she implemented a policy so deficient that the policy itself acts as a deprivation of
constitutional rights. Accordingly, Boutte should amend his complaint to demonstrate liability on
the part of this defendant or dismiss his claims against her.
5. Failure to Report
Boutte alleges that defendants Smith, Bergeron, Morgan, and Perkins failed to file an
incident report and/or report the incident to the safety department. Boutte has not alleged that these
defendants had any affirmative duty to report the incident or that he has any constitutional right
that was violated by the alleged failure to report. Thus, Boutte’s allegations in this regard fail to
state a claim and he should amend his complaint in keeping with the above or dismiss his claims.
6. Failure to Follow Policy
To the extent that Boutte contends that defendants Smith, Bergeron, and Morgan’s actions
violated safety protocol and/or precautions, he is advised that an alleged failure to follow prison
rules and regulations does not, in and of itself, give rise to a constitutional violation. Taylor v.
Howards, 268 F.3d 1063 (5th Cir. 2001) (citing Myers v. Klevenhagen, 97 F.3d 91 (5th Cir. 1996)).

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Boutte should amend his complaint to demonstrate liability on the part of the defendants or dismiss
this claim.
III.
CONCLUSION
Boutte’s pro se complaint is deficient in a number of respects as discussed above. Before
this court determines the proper disposition of his claims, he should be given the opportunity to
remedy the deficiencies of his complaint or dismiss those claims that he cannot remedy. Bazrowx
v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998).
Accordingly;
THE CLERK IS DIRECTED to serve the plaintiff with a copy of this Order.
IT IS ORDERED that Boutte amend his complaint within thirty (30) days of the filing
of this order to cure the deficiencies as outlined above, and alternatively, dismiss the claims he is
unable to cure through amendment.
Failure to comply with this order may result in dismissal of this action as frivolous under
28 U.S.C. § 1915(e)(2)(B)(i) or under Rule 41(b) or 16(f) of the Federal Rules of Civil
Procedure. See Link v. Wabash R. Co., 82 S.Ct. 1386 (1962).
Boutte is further required to notify the court of any change in his address under LR 41.3.
THUS DONE AND SIGNED in Chambers this 6th day of June, 2017.

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