Lewis v. Bossier Parish et al

Filing 55

REPORT AND RECOMMENDATIONS re 1 Complaint and 14 Amended Complaint,, filed by Freddie R Lewis: IT IS RECOMMENDED that the following claims be DISMISSED WITH PREJUDICE as frivolous and for failure to state a claim upon which relief may be granted: (1) Claims against Sgt. Shelton, the Bossier City Police Department, and the Bossier City Police Chief arising out of his November 18, 2005 arrest; (2) Claims against the Parish of Bossier arising out of his November 19, 2005 transfer; (3) Claims aga inst Medical Assistant Thornhill and Medical Assistant David arising out of his November 19, 2005 request for medical treatment; (4) Claims against Warden Weaver, Assistant Warden Stokes, Sgt. Wadsworth, Sgt. Jones, Deputy Pierce, Deputy Porter, and Deputy Martin arising out of denial of access to the courts while at Bossier Parish Maximum Security Facility from November 10, 2005 until February 22, 2005; (5) Claims against Deputy Porter and Deputy Martin arising out of the search of his cell whi le incarcerated at the Bossier Parish Maximum Security Facility from November 10, 2005 until February 22, 2005; (6) Claims against Warden Weaver, Assistant Warden Stokes, Medical Officer Thornhill, and Medical Officer David arising out of his Februar y 20, 2006 medical examination; (6) Claims against Assistant Warden Stokes arising out of the February 22, 2006 confrontation; (7) Claims against Medical Assistant Broadenski arising out of his February 24, 2005 medical visit; (8) Claims against the Bossier Parish Sheriff's Department and the Bossier City Police Department arising out of his classification claims; (9) Claims against Sgt. Wadsworth, Sgt. Jones, Deputy Martin, Deputy Porter, Deputy Pierce, Warden Dennis Weaver and Assistant W arden Stokes arising out of the denial of access to the courts; (10) Claims against George Henderson; (11) Claims against Assistant Warden Lee arising out of the prison disciplinary proceedings; (12) Claims against Assistant Warden Lee arising out of the prison administrative grievance procedure; (13) Claims against Judge Stinson, Judge Bolin, Judge Robinson and Magistrate Judge Robert Shemwell; (14) Claims against Mary Jackson; (15) Claims against the District Attorney; and (16) Claims against Agent T. Smith, Officer M. Teutsch, Deputy Hall and Deputy Prather. IT IS FURTHER RECOMMENDED that Plaintiff's civil rights claim seeking monetary compensation for his allegedly unconstitutional conviction and/or sentence be DISMISSED WITH PREJUDICE as frivolous under 28 U.S.C. § 1915(e) until such time as the Heck conditions are met. Objections to R&R due by 3/11/2010. Signed by Magistrate Judge Mark Hornsby on 2/22/10. (crt,Cassanova, M)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF LOUISIANA S H R EV E P O RT DIVISION F R E D D I E R. LEWIS VERSUS B O S S I E R PARISH SHERIFF'S D E P A R T M E N T , ET AL. C I V I L ACTION NO. 07-394-P J U D GE STAGG MAGISTRATE JUDGE HORNSBY

REPORT AND RECOMMENDATION I n t r o d u c t io n Befo re the Court is a civil rights complaint filed in forma pauperis by pro se plaintiff Fred die R. Lewis ("Plaintiff"), pursuant to 42 U.S.C. § 1983.1 This complaint was received and filed in this Court on March 1, 2007. Plaintiff was a pre-trial detainee detained at the B o s s i e r Parish Penal Farm in Plain Dealing, Louisiana when he filed this complaint. He is cur ren tly incarcerated at the Winn Correctional Center in Winnfield, Louisiana. Plaintiff names as defendants: the Bossier Parish Sheriff's Department, Sheriff Larry C . Dean, the Parish of Bossier, George Henderson, Warden Mark Toloso, Warden Dennis We aver, Assistant Warden Joe Lee, Assistant W arden Stokes, Sgt. Shelton, Agent T. Smith, B o s s i e r City Police Chief, the City of Bossier, Nursing Assistant Thornhill, Nursing Assistant D a v i d , Officer M . Teutsch, Deputy Hall, Deputy J. Martin, Deputy Prather, Sgt. Pierce,

Plaintiff has also asserted claims against several Defendants for retaliation for filing actions in this court and failure to provide medical treatment. These claims require further review and will be addressed in a separate memorandum order.
1

B o s s i e r Parish Minimum Security Facility Medical Staff, Judge J. Marion Robinson, District A t t o r n e y Marvin, Steve Broadenski, Sgt. Wadsworth, Deputy Porter, Deputy Jones. P r e s c r i p ti o n I n Wilson v. Garcia, 471 U.S. 261 (1985), the Court articulated the guidelines to be u s e d in determining what prescriptive period should apply to Section 1983 claims. The Court d e t e r m in e d "§ 1983 claims are best characterized as personal injury actions" and the forum sta te's statute of limitations applicable to such claims should be used. Id. at 280. In Gates v . Spinks, 771 F.2d 916 (5th Cir. 1985), the Fifth Circuit Court of Appeals phrased the test a s : "The state statute governing the general tort remedy for personal injuries should apply t o 1983 actions . . ." Gates, 771 F.2d at 919. T h e Louisiana Civil Code provides a general prescriptive statute that governs tort a c t i o n s . The article subjects delictual actions to a liberative prescription of one year. See L a . C.C. art. 3492. The Fifth Circuit qualified this prescriptive period, however, when it held t h a t "a section 1983 action accrues and the statute of limitations begins to run when the p l a i n ti f f knows or has reason to know of the injury which is the basis for the action." Watts v . Graves, 720 F.2d 1416, 1417 (5th Cir. 1983). Finally, prescription on the claim is tolled wh ile the administrative remedy procedure is pending. See Harris v. Hegmann, 198 F.3d 153 (5th Cir. 1999).

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C l a i m s arising out of November 18, 2005 arrest P l a i n ti f f claims his civil rights were violated on November 18, 2005, because Sgt. S h e l t o n and another officer falsely arrested him and dislocated his right shoulder during the arrest. He also claims he received no medial treatment for his shoulder while in the custody o f the Bossier City Police Department. Prescription began to run as to these claims in N o v e m b e r 2005. The above entitled and numbered complaint was not signed by Plaintiff u n t i l February 26, 2007, and it was not filed by the Clerk of Court until March 1, 2007. Pla intif f's claims are, therefore, prescribed. Accordingly, Plaintiff's civil rights claims against Sgt. Shelton, the Bossier City P o l i c e Department, and the Bossier City Police Chief regarding his alleged false arrest, s h o u l d e r injury, and denial of medical treatment on November 18, 2005, should be dismissed a s frivolous. C l a i m s arising out of November 19, 2005 transfer P l a i n ti f f claims that on November 19, 2005, he was transferred to the Bossier Parish M a x im u m Security Facility. He complains that inmates booked into custody at the facility are not tested for communicable diseases and as a result he was exposed to diseases such as t u b e r c u l o s i s , staff infection, and hepatitis. He further complains that there were brown re clu se spiders at the facility.

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P l a i n ti f f also claims that he was forced to buy a thermal shirt from the facility. He c la im s items such as underwear, socks, hygiene products, stamps, paper, and envelopes could onl y be purchased at the commissary and not from outside sources. Prescription began to run as to these claims in November 2005 when he was t r a n sf e r r e d to the Bossier Parish Maximum Security Facility. The above entitled and n u m b e r e d complaint was not signed by Plaintiff until February 26, 2007, and it was not filed b y the Clerk of Court until March 1, 2007. Plaintiff's claims are, therefore, prescribed. Accordingly, Plaintiff's civil rights claims against the Parish of Bossier regarding the t e s ti n g of inmates for communicable diseases, his alleged exposure to communicable d i s e a s e s , and the commissary policies at the Bossier Parish M axim um Security Facility s h o u l d be dismissed as frivolous. C l a i m s arising out of November 19, 2005 request for medical treatment Plaintiff claims that on November 19, 2005, he filed a medical request to Medical A s s i s ta n t Thornhill and Medical Assistant David because of his shoulder injury. He claims t h a t on November 21, 2005, he again sought medical assistance for his shoulder injury. He c la im s he did not receive a response until December 2005 when his shoulder was examined a n d he was diagnosed as having an extended dislocation of his right shoulder. He claims that o n December 20, 2005, the Bossier Parish mobile x-ray came to the facility. He claims he w a s prescribed pain medication and charged $25.00. He complains that he was not

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t r a n sp o r t e d to LSU Medical Center for an examination and treatment. Plaintiff complains t h a t he was charged approximately $30.00 a month for the medication. P r e s c r ip t i o n began to run as to these claims in December 2005 at the latest. The above e n t i tl e d and numbered complaint was not signed by Plaintiff until February 26, 2007, and it w a s not filed by the Clerk of Court until March 1, 2007. Plaintiff's claims are, therefore, pre scrib ed. Accordingly, Plaintiff's civil rights claims against Medical Assistant Thornhill and M e d i c a l Assistant David regarding his alleged inadequate medical treatment in November a n d December of 2005 should be dismissed as frivolous. C l ai m s arising out of denial of access to the courts while at Bossier Parish Maximum S e c u r i t y Facility from November 10, 2005 until February 22, 2005 P l a i n ti f f claims that while incarcerated at the Bossier Parish M axim um Security Fa cil ity, Warden Weaver, Assistant Warden Stokes, Sgt. Wadsworth, Sgt. Jones, Deputy P i e r c e , Deputy Porter, and Deputy Martin informed him that here were no civil rights forms a t the facility. He further claims he was denied legal counsel and assistance, a law library a n d books, and legal supplies. He further claims he did not have the correct mailing address f o r the federal and state courts until November 30, 2005. He claims that on February 8, 2 0 0 5 , Deputy Martin, Deputy Porter, Sgt, Jones, and Sgt. Wadsworth threw away his IFP applications. P r e s c r ip t i o n began to run as to these claims on February 23, 2006 at the latest. The a b o v e entitled and numbered complaint was not signed by Plaintiff until February 26, 2007,

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a n d it was not filed by the Clerk of Court until March 1, 2007. Plaintiff's claims are, ther efo re, prescribed. Accordingly, Plaintiff's civil rights claims against Warden Weaver, Assistant Warden S t o k e s , Sgt. Wadsworth, Sgt. Jones, Deputy Pierce, Deputy Porter, and Deputy Martin regarding the denial of access to the courts while detained at the Bossier Parish Maximum S e c u r i t y Facility should be dismissed as frivolous. T h re at s and Transfer to Work Camp P l a i n ti f f claims that, on February 22, 2006, Assistant Warden Stokes threatened him a n d , approximately 15 minutes later, Plaintiff was transferred to the Bossier Parish Minimum Secu rity Work Camp. He claims he was transferred in retaliation for filing the civil actions aga inst Bossier Parish. These claims are untimely. Prescription began to run as to these claims on

Februa ry 23, 2006 at the latest. The above entitled and numbered complaint was not signed b y Plaintiff until February 26, 2007, and it was not filed by the Clerk of Court until March 1, 200 7. Plaintiff's claims are, therefore, prescribed. Furthermore, verbal abuse and harassment do not constitute cruel and unusual p u n i s h m e n t as contemplated by the Eighth Amendment, and allegations of such, without m o r e , are insufficient grounds for relief under 42 U.S.C. § 1983. See Collins v. Cundy, 603 F . 2 d 825 (10th Cir. 1979); Ellingburg v. Lucas, 518 F.2d 1196 (8th Cir. 1975). The Fifth Circu it held that "mere threatening language and gestures of a custodial officer do not, even

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if true, amount to constitutional violations." Lynch v Cannatella, 810 F.2d 1363, 1376 (5th Cir. 1987) (citing McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983)). Even if Plaintiff w a s subjected to threats as alleged, this claim does not amount to harm sufficient to con stitute a constitutional violation. Moreover, the United States Supreme Court has held that it is for state prison autho rities to decide where a state prisoner is to be incarcerated, and that a prisoner has no r i g h t to challenge his place of incarceration. See Olim v. Wakinekona, 461 U.S. 238, 103 S .C t . 1741, 75 L.Ed.2d 813 (1983); Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.E d.2d 451 (1976). Accordingly, Plaintiff's claims against Assistant Warden Stokes arising out of the Februa ry 22, 2006 confrontation and transfer should be dismissed with prejudice as frivolous. C l ai m s arising out of cell search while incarcerated at the Bossier Parish Maximum S e c u r i t y Facility from November 10, 2005 until February 22, 2005 P l a i n ti f f claims that in February 2005, he complained because Deputy Martin failed to return his IFP application to him. He claims that because he complained about Deputy Ma rtin's actions, Deputy Porter and Deputy Martin searched his cell. He further claims they t h r e w away his medication because they erroneously assumed he was accumulating it. He claim s Deputy Porter did not realize that he had purchased the medication. Plaintiff claims that on February 8, 2006, Deputy Martin, Deputy Porter, Sgt. Jones, a n d Sgt. Wadsworth threw away his IFP applications. Plaintiff claims that on February 21, 2 0 0 6 , Officer Burton sent him a response informing him that she had completed one IFP

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applic ation and given it to the booking desk to return to him.

He claims that on February

2 2 , 2006, Assistant Warden Stokes threatened him and threw Officer Burton's response r e g a r d in g the IFP application in his face. He claims that 15 to 30 minutes later, he was t r a n sf e r r e d to the Bossier Parish Minimum Security Pea Farm Work Camp. He claims he wa s transferred in retaliation for his filing of civil actions against Bossier Parish. Prescription began to run as to these claims on February 23, 2006 at the latest. The a b o v e entitled and numbered complaint was not signed by Plaintiff until February 26, 2007, a n d it was not filed by the Clerk of Court until March 1, 2007. Plaintiff's claims are, ther efo re, prescribed. Accordingly, Plaintiff's civil rights claims against Deputy Porter and Deputy Martin regarding the retaliatory search of his cell and the disposal of his medication at the Bossier P a r i s h Maximum Security Facility should be dismissed as frivolous. C l a i m s arising out of February 20, 2006 medical examination P l a i n ti f f claims that on February 20, 2006, he was examined by an LSU Medical C e n t e r doctor. He claims the doctor reviewed the X-rays taken by the mobile unit and found t h e m inadequate. He claims the doctor ordered him transported to LSU Medical Center for X - r a y s , examination, and treatment. He further claims the doctor prescribed Tylenol for his pain for ten days and ordered that he be transported to LSU M edica l Center if the pain did n o t stop. Plaintiff claims Warden Weaver, Assistant Warden Stokes, Medical Officer T h o r n h i l l , and Medical Officer David did not comply with the doctor's instructions and den ied him medical treatment. Page 8 of 27

P r e s c r ip t i o n began to run as to these claims on February 23, 2006 at the latest, the day a f t e r he was transferred to the Bossier Parish Minimum Security Facility. The above entitled a n d numbered complaint was not signed by Plaintiff until February 26, 2007, and it was not f i l ed by the Clerk of Court until March 1, 2007. Plaintiff's claims are, therefore, prescribed. F u r t h e rm o r e , Plaintiff admits that the doctor prescribed ten days of pain medication f o r him and ordered that he be taken to LSU M e d i c a l Center if his pain continued. Plaintiff w a s no longer detained at the Bossier Parish M inimu m Security Facility after his pain m e d i c a t io n ended. Therefore, Warden Weaver, Assistant Warden Stokes, Medical Officer Tho rnhill, and Medical Officer David did not fail to comply with the doctor's instructions. Accordingly, Plaintiff's civil rights claims against Warden Weaver, Assistant Warden S t o k e s , Medical Officer Thornhill, and Medical Officer David regarding his inadequate m e d i c a l treatment in February 2006 should be dismissed as frivolous. Cla ims arising out of February 24, 2006 medical visit P l a i n ti f f claims that on February 24, 2006, Medical Assistant Steve Broadenski d i s c o n ti n u e d his medication prescribed on February 20, 2006, because he felt that his s h o u l d e r was healed. He further claims that he was charged $10.00 for a sick call visit. He c la im s he was charged with refusing medical attention because he refused to sign a receipt. P l a i n ti f f admits that on March 1, 2006, Medical Assistant Steve Broadenski reinstated his p r e s c ri p t io n . P r e s c r ip t i o n began to run as to these claims on February 25, 2006. The above entitled a n d numbered complaint was not signed by Plaintiff until February 26, 2007 and it was not Page 9 of 27

f i l ed by the Clerk of Court until March 1, 2007. Plaintiff's claims are, therefore, prescribed. A cc or di ng ly, Plaintiff's civil rights claims against Medical Assistant Broadenski arising out of his February 24, 2005 medical visit should be dismissed as frivolous. C l a s s i fi c a t io n P l a i n ti f f complains about the way that the Bossier Parish Sheriff's Department c l a s si f i es inmates. He also complains that the Bossier Parish Sheriff's Department and B o s s i e r City Police Department use patrolman as jailers instead of certified correctional o f f i c er s in violation of his constitutional rights. These are not claims that this Court can r e s o lv e . Federal courts should not, under the guise of enforcing constitutional standards, a ss u me the superintendence of state prison administration. See Jones v. Diamond, 636 F.2d 1 3 6 4 , 1368 (5th Cir. 1981) (en banc) (overruled on other grounds). Thus, this Court accords s tate prison administrators wide-ranging deference to adopt and to execute policies and p r a c t ic e s that are needed to maintain and preserve order, discipline, and security in prison. S e e Bell v. Wolfish, 441 U.S. 520, 547 (1979). T h e classification of prisoners is such a practice that is left to the discretion of prison o f f i c i a l s . See McCord v. Maggio, 910 F.2d 1248, 1250 (5th Cir. 1990). "It is well settled t h a t `[p]rison officials must have broad discretion, free from judicial intervention, in c l a s si f yi n g prisoners in terms of their custodial status'." McCord, 910 F.2d at 1250 (quoting Wilk erson v. Maggio, 703 F.2d 909 (5th Cir. 1983)). In Louisiana, the classification of prisoners is the duty of the Department of C o r r e c t io n s and an inmate, such as Plaintiff, has no right to a particular classification. In Page 10 of 27

a d d i t io n , "speculative, collateral consequences of prison adm i n i s tr a t iv e decisions do not create constitutionally protected liberty interests." Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1 9 9 5 ) (citing Meachum v. Fano, 427 U.S. 215, 299 n.8, 96 S. Ct. 2532, 2540 n.8 (1976)). T h u s , the prison officials' decision about the classification of a prisoner and the resulting c o n s e q u e n c e s of such decision do not give rise to constitutionally protected liberty interests. F o r the same reasons, the hiring of prison guards is the duty of the Department of Corrections and an inmate, such as Plaintiff, has no right to certified correctional officers. Accordingly, Plaintiff's claims against the Bossier Parish Sheriff's Department and t h e Bossier City Police Department with respect to the prison classification system and the q u a l i fi c a ti o n s for prison guards are frivolous because they lack an arguable basis in law and i n fact, and they should be dismissed with prejudice as frivolous. He ck Claim P l a i n ti f f seeks monetary compensation pursuant to his claim that a valid search w a r r a n t did not exist in his criminal case. The United States Supreme Court held that in o r d e r to recover monetary compensation for an allegedly unconstitutional conviction or sentence or for "harm caused by actions whose unlawfulness would render a conviction or s e n t e n c e invalid," a prisoner must show that the conviction or sentence has been "reversed o n 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 hab eas ." Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372 (1994). Heck i n v o l v e d a civil rights claim brought by a state prisoner. The Court dismissed the Section Page 11 of 27

1 9 8 3 suit until plaintiff could demonstrate that his conviction or sentence had been i n v a l id a t e d . W h e n a claim comes within the parameters of the Heck teachings, it is not cognizable u n d e r 42 U.S.C. § 1983 so long as the validity of the conviction or sentence has not been c a l le d into question as defined therein, which requires dismissal of claims not meeting its pre con ditio ns for suit. See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996). P l a i n ti f f is seeking monetary compensation for civil rights violations under Section 1 9 8 3 ; therefore, he must prove that his conviction and/or sentence have been invalidated. H e has not met this precondition, and his claim regarding the invalid search warrant must be d i s m i ss e d until such time that he can demonstrate that his convictions and/or sentences have b e e n invalidated.2 Acce ss to the Courts P r is o n ers have a constitutional right of meaningful access to the courts. Degrate v. Go dw in , 84 F.3d 768, 768-69 (5th Cir.1996) (quoting Bounds v. Smith, 430 U.S. 817, 828, 9 7 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977)). However, this constitutional guarantee is not w i t h o u t limitation. Lewis v. Casey, 518 U.S. 343 (1996) (quoting Turner v. Safley, 482 U.S. 7 8 , 89, 107 S.Ct. 2254, 2261-62, 96 L.Ed.2d 64 (1987)). In Lewis v. Casey, 518 U.S. 343, ( 1 9 9 6 ) , the Supreme Court reviewed its holding in Bounds v. Smith, 430 U.S. 817, (1977) w h i c h is the source of a prisoner's constitutional right to "meaningful access to the courts."

The Court notes that Plaintiff was a pre-trial detainee when he filed this action. However, he has since been convicted and sentenced.
2

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Wh ile the Supreme Court reaffirmed a prisoner's right of access to the courts in Lewis, the C o u r t limited the parameters of Bounds and set forth a standard to be applied when d e t e r m in i n g whether to grant relief for an access to the courts violation. In so holding, the Cou rt noted that a prisoner must show an actual injury, explaining that this requirement is d e r i v e d from the doctrine of standing. Lewis, 116 S.Ct. at 2179. The Court used the analogy o f a prisoner who is denied access to that of a healthy prisoner who has been deprived of m e d i c a l treatment. In both cases, neither the access deprived prisoner nor the healthy p r i s o n er have sustained constitutional injury, and thus, are not entitled to relief under Section 1 9 8 3 . The Court emphasized that the court's role is to provide relief to claimants who have suf fere d actual harm, not to interfere with the management of prisons. Accordingly, the Fifth Circuit has held that a prisoner cannot prevail on an access to t h e courts claim without proving an actual injury in non-frivolous litigation as a result of the defend ant's alleged unconstitutional conduct. Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998); Chriceol v. Phillips, 169 F.3d 313, 317 (5th Cir. 1999). M o t i o n for bond in state court P l a i n ti f f claims he attempted to mail approximately five motions for an OR bond from t h e Bossier Parish Maximum Security Facility to the state court. He claims these motions were either lost or thrown away by Sgt. Wadsworth, Sgt. Jones, Deputy Martin, Deputy Porter, and Deputy Pierce. Plaintiff admits that his sixth motion for OR bond was received b y the state court and on January 12, 2006, Judge Bruce Bolin denied it based on the alleged charges. Page 13 of 27

A p p l i c a ti o n of the actual injury requirement to the instant claim supports a finding that Plaintiff`s claim is frivolous. Plaintiff has clearly not satisfied the "actual injury" requirement b e c a u s e on January 12, 2006, Judge Bolin denied his sixth motion for OR bond. Plaintiff has f a i le d to demonstrate that he lost the right to commence, prosecute or appeal any suit as a result of the alleged refusal to mail his motions for OR bond. Thus, he has failed to state any actu al injury. In addition, these claims are untimely. Prescription began to run as to these claims p r i o r to January 12, 2006. The above entitled and numbered complaint was not signed by P l a i n ti f f until February 26, 2007, and it was not filed by the Clerk of Court until March 1, 200 7. Plaintiff's claims are, therefore, prescribed. Accordingly, Plaintiff's claims against Sgt. Wadsworth, Sgt. Jones, Deputy Martin, De puty Porter, and Deputy Pierce regarding access to the court should be dismissed with p r e j u d i c e as frivolous. C i v i l Action No. 06-cv-0109 P l a i n ti f f claims that on January 17, 2006, he filed civil action 06-cv-0109 in this Co urt. Plaintiff claims Warden Dennis Weaver and Assistant Warden Stokes refused to com plete his IFP application. However, Plaintiff alleges in civil action 06-cv-0109 (Doc. 16) t h a t this Court committed an error regarding his IFP application and that this is why is case w a s dismissed. Thus, Plaintiff has failed to allege an actual injury which was the result of Wa rden Dennis Weaver and Assistant Warden Stokes's alleged unconstitutional conduct.

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Acc o rd in g ly, Plaintiff's claims against Warden Dennis Weaver and Assistant Warden S t o k e s regarding access to the court in civil action 06-cv-0109 should be dismissed with p r e j u d i c e as frivolous. C i v i l Action 06-cv-0179 P l a i n ti f f claims that on January 30, 2006, he filed civil action 06-cv-0179 in this Co urt. He claims Warden Dennis Weaver and Assistant W arden Stokes refused to complete h i s IFP application in this action. A p p l i c a ti o n of the actual injury requirement to the instant claim supports a finding that Plaintiff's claim is frivolous. Plaintiff has clearly not satisfied the "actual injury"

require m e n t because on March 22, 2006, he filed a motion to proceed in forma pauperis ( D o c . 10) which this Court granted on March 27, 2006 (Doc. 11). Plaintiff has failed to dem onstra te that he lost the right to commence, prosecute, or appeal any suit as a result of t h e alleged denial to sign the IFP application. Thus, he has failed to state any actual injury. A cc or di ng ly, Plaintiff's claims against Warden Dennis Weaver and Assistant Warden S to k e s regarding access to the court in civil action 06-cv-0179 should be dismissed with p r e j u d i c e as frivolous. S t a t e Actor P l a i n t i f f names inmate George Henderson as a defendant in this action. Plaintiff c la im s that on March 10, 2006, inmate George Henderson attacked him. He claims inmate H e n d e r s o n struck him in the face with an object. Plaintiff claims that as a result of this a t t ac k , his eye socket, sinus cavity, and pallet were fractured. He also claims he lost Page 15 of 27

c o n s c i o u s n e s s . He claims that to this day, he still suffers nerve damage, impaired vision, and c o n t i n u o u s pain and headaches. He also claims he has lost pigmentation in his eye area and ma y be permanently disfigured. Section 1983 prescribes redress for conduct by any person who, under color of state l aw , acts to deprive another person of any right, privilege, or immunity secured by the C o n s t i tu t i o n and laws of the United States. See 42 U . S. C . § 1983. A plaintiff in a civil rights suit must show that the conduct of which he is complaining was committed by a person a c t in g under color of state law. Plaintiff has not alleged any acts that could give rise to a find ing that George Henderson was a state actor for purposes of Section 1983. Accordingly, Plaintiff's civil rights claims against inmate George Henderson should b e dismissed as frivolous. D i s c i p li n a r y Proceedings P lain tiff claims that on March 13, 2006, Assistant Warden Joe Lee attempted to coerce him into waving his right to a disciplinary hearing. He claims Assistant Warden Joe Lee then o r g a n i z ed a disciplinary board comprised of himself, the jail cook, and the maintenance man w h i c h was held in a storage room. He claims the board justified the March 10, 2006 attack b y finding that Plaintiff called inmate Henderson a name. To the extent Plaintiff contends he was punished without due process, that claim is not cognizable. In Sandin v. Connor, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), the Supre m e Court clarified when due process protections attach to the prison disciplinary p r o c e s s . The Supreme Court held that the Due Process Clause of the Fourteenth Amendment Page 16 of 27

d o e s not afford an inmate a protected liberty interest that would entitle the inmate to p r o c e d u r a l protections in the disciplinary process when the maximum sanction the inmate could receive does not "present the type of atypical, significant deprivation in which a state m i g h t conceivably create a liberty interest" and the duration of the prisoner's original s e n t e n c e is not affected. Id. 132 L.Ed.2d at 431. Under the guidance provided by Sandin, t h e Fifth Circuit has held that as a general rule, only sanctions which result in loss of good t im e credit or which otherwise directly and adversely affect release will implicate a cons titutionally protected liberty interest. Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995). Moreover, in commenting on Sandin, the Fifth Circuit noted that liberty interests w h i c h are protected by the Due Process Clause are generally limited to actions which affect t h e quantity of time rather than the quality of time served by a prisoner. Madison v. Parker, 1 0 4 F.3d 765, 767 (5th Cir. 1997) citing Sandin, 115 S.Ct. at 2297. P l a i n ti f f in the instant case does not allege that the disciplinary action affected the d u r a t io n of his sentence or that the disciplinary sentence was atypical of the prison enviro nm ent. In fact, Plaintiff does not allege that a disciplinary sentence was even rendered. A cc or di ng ly, Plaintiff's claims against Assistant Warden Joe Lee that he was punished w i t h o u t due process of law are without merit and should be dismissed with prejudice as frivolous. A d m i n i s t r a t iv e Grievance Procedure P l a i n ti f f claims that on March 17, 2006, he filed a grievance form. He claims that on M a r c h 20, 2006, Assistant Warden Lee found that his grievance needed to be summarized Page 17 of 27

a n d was unreadable. He claims that in May 2006, Assistant Warden Lee informed him that a grievance procedure did not exist. P l a i n ti f f complains his grievances were rejected and/or not processed in violation of his constitutional rights. Inmates do not have a constitutionally protected right to a prison a d m i n i s tr a t iv e grievance procedure. See Oladipupo v. Austin, et al., 104 F.Supp.2d 626 ( W .D . La. 2000); Brown v. Dodson, et al., 863 F. Supp. 284 (W.D. Va. 1994); Flick v. Alba, 9 3 2 F.2d 728, 729 (8 th Cir. 1991). A prison official's failure to comply with a state a d m i n i s tr a t iv e grievance procedure is not actionable under Section 1983 because a state a d m i n i s tr a t iv e grievance procedure does not confer any substantive constitutional right upon p r i s o n inmates. Mann v. Adams, 855 F.2d 639, 640 (9 th Cir. 1988). Furthermore, state a d m i n i s tr a t iv e grievance procedures are separate and distinct from state and federal legal p r o c e d u r e s . Thus, a prison official's failure to comply with state administrative grievance p r o c e d u r e s does not compromise an inmate's right of access to the courts. Flick, supra. T h u s , insofar as Plaintiff alleges that the Defendants failed to comply with the prison a d m in i s t r a t i v e grievance procedure, those allegations, standing alone, do not provide an arg uab le basis for recovery under Section 1983. Accordingly, these claims against Assistant Warden Lee regarding the administrative r e m e d y procedure should be dismissed with prejudice as frivolous. Judicial Immunity It is well established that judges enjoy absolute immunity from liability for damages a r i si n g out of performance of their judicial duties, regardless of bad faith. Pierson v. Ray, Page 18 of 27

3 8 6 U.S. 547, 87 S.Ct. 1213 (1967); Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099 (1978). Acts are judicial in nature if they are (1) normal judicial functions (2) that occurred in the judge's court or chambers and were (3) centered around a case pending before a judge. Brew ster v. Blackwell, 692 F.2d 387, 396-97 (5 th Cir. 1982). Judge Stinson Plaintiff claims that on November 21, 2005, he appeared before Judge Stinson for his 7 2 hour hearing. He admits that he was appointed an attorney during the hearing. He c o m p l a i n s that the hearing lasted only ten seconds and he was denied a full and fair hearing p u r s u a n t to La. C.Cr.P. art. 521. Plaintiff cannot allege claims against Judge Stinson because t h e conduct challenged unequivocally falls within the judge's authority as judicial officer of the court and in the ordinary exercise of judicial duties. In addition, the claims against Judge Stinson are untimely. Prescription began to run a s to these claims in November 2005. The above entitled and numbered complaint was not s i g n e d by Plaintiff until February 26, 2007, and it was not filed by the Clerk of Court until M arch 1, 2007. Plaintiff's claims are, therefore, prescribed. Judge Bolin P l a i n ti f f claims that on January 12, 2006, Judge Bolin denied his motion for OR bond. H e complains that he denied the motion based only on the alleged charges. Plaintiff cannot main t a i n these claims against Judge Bolin because the conduct challenged unequivocally falls within the judge's authority as judicial officer of the court and in the ordinary exercise of judicial duties. Page 19 of 27

In addition, the claims against Judge Bolin are untimely. Prescription began to run a s to these claims in January 2006. The above entitled and numbered complaint was not s i g n e d by Plaintiff until February 26, 2007, and it was not filed by the Clerk of Court until M arch 1, 2007. Plaintiff's claims are therefore prescribed. Judge Robinson P l a i n ti f f claims Judge Robinson denied his motions for discovery and inspection. He c o m p l a i n s Judge Robinson denied his motions on the erroneous basis that a court appointed h a d previously filed said motions. He claims Judge Robinson did not respond to his request t h a t criminal charges be filed against George Henderson, Warden Toloso, Assistant Warden L e e and staff. Plaintiff claims that in August 2006, he filed a personal injury action in the L o u i s i a na Twenty-Sixth Judicial District Court that Judge Robinson denied. He claims Judge R o b i n s o n obstructed justice by his denial. Plaintiff cannot maintain these claims against J u d g e Robinson because the conduct challenged unequivocally falls within the judge's auth ority as judicial officer of the court and in the ordinary exercise of judicial duties. Accordingly, Plaintiff's civil rights claim against Judge Stinson, Judge Bolin and J u d g e Robinson should be dismissed as frivolous.

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M agistr ate Judge Robert Shemwell P l a i n t i f f claims that Clerk of Court and Magistrate Judge Robert Shemwell3 e n d a n g e r e d him by continuing to send memorandum orders requiring that he have prison offic ials complete his IFP applications. He claims he sent Robert Shemwell documentary p r o o f that the accounts officer had completed the application, but that Warden Weaver, A s s i s ta n t Warden Stokes and other officers refused to return the completed form to him. He c la im s Robert Shemwell returned the documentary proof to him and issued another m e m o r a n d u m order requiring that the IFP application be completed by the financial officer a n d submitted to the Court. He claims Robert Shemwell failed to contact the Bossier Parish Sheriff's Department or Accounts Officer Burton regarding the respondents' misconduct and c r i m i n al actions regarding their failure to return the completed IFP application to him. P l a i n ti f f claims that on March 10, 2006, Robert Shemwell finally mailed the IFP application a n d memorandum order to the accounts officer. Plaintiff claims the respondents then r e s p o n d e d to the memorandum order and completed the IFP application. Plaintiff claims that if Robert Shemwell had done this sooner, he would have been spared threats, humiliation, m e n ta l stress, pain, transfers, and the conspiracy to inflict suffering upon him. P l a i n ti f f cannot maintain his claims against Magistrate Judge Shemwell because the c o n d u c t challenged unequivocally falls within the judge's authority as judicial officer of the

Robert Shemwell held a dual role of Clerk of Court and Part-Time Magistrate Judge in the United States District Court for the Western District of Louisiana. It was in his capacity as Magistrate Judge that he issued Memorandum Orders regarding Plaintiff's applications to proceed in forma pauperis.
3

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c o u r t and in the ordinary exercise of judicial duties. Accordingly, Plaintiff's civil rights c l a i m against Magistrate Judge Shemwell should be dismissed as frivolous. I n e f f e ct i v e Assistance of Counsel P l a i n ti f f claims that in January 2006, he appeared in state court before Judge Parker S e lf . He claims his court appointed attorney Mary Jackson waived his right to the reading o f the indictment, thereby waiving his right to an arraignment. He further claims she pleaded o n his behalf. He claims her actions provided him with ineffective assistance of counsel and t h a t she acted in concert with the State's failure to obtain an indictment and institute p ro s ec u ti on against him. S e c t i o n 1983 prescribes redress for conduct by any person who, under color of state l aw , acts to deprive another person of any right, privilege or immunity secured by the C o n s t i tu t i o n and laws of the United States. 42 U.S.C. § 1983. A plaintiff in a civil rights suit must show that the conduct complained of was committed by a person acting under color o f state law. Neither privately obtained nor court appointed defense attorneys act under color o f state law for purposes of Section 1983. Bo th a retained and a court appointed attorney serve their client, the accused; they do n o t serve the state. They serve a private function for their client that follows from the very n a ture of the attorney-client relationship and for which no state office or authority are n e e d e d . Hence, neither a retained nor a court appointed attorney acts under color of state law a n d cannot be held liable under Section 1983. See Polk County v. Dodson, 454 U.S. 312 (1981); Ellison v. DeLa Rosa, 685 F.2d 959, 960 (5th Cir. 1982) (citing Polk County, supra); Page 22 of 27

U n i t e d States ex rel. Simmons v. Zibilich, 542 F.2d 259, 261 (5th Cir. 1976); Nelson v. Stratto n , 469 F.2d 1155 (5th Cir. 1972); Richardson v. Fleming, 651 F.2d 366 (5th Cir. 1981); Mills v. Criminal District Court #3, 837 F.2d 677 (5th Cir. 1988)(citing Nelson, supra ). A cc or di ng ly, Plaintiff's civil rights claims against Mary Jackson should be dismissed a s frivolous. P rose cutoria l Immunity P l a i n ti f f claims he attempted to file criminal charges against Warden Toloso, Assistant W a r d e n Joe Lee, and their staffs. He claims he submitted requests to the Bossier Parish Distric t Attorney. He complains that he never responded to his request. Prosecu to rs have absolute immunity when acting in a quasi-judicial mode. Imbler v. P a c h t m a n, 424 U.S. 409, 106 S.Ct. 984, 47 L.Ed.2d 128 (1976); Geter v. Fortenberry, 849 F . 2 d 1550 (5th Cir. 1988). The Fifth Circuit has repeatedly recognized the purpose of the imm unity defense is to protect public officials from undue interference with their duties and f r o m disabling threats of liability. Geter, 849 F.2d at 1552. Absolute immunity is immunity f r o m suit rather than from liability. Elliot v. Perez, 751 F.2d 1472 (5th Cir. 1985). The Fifth Circu it "has likewise accepted the premise that the protected official should be sheltered from t r i a l and pre-trial preparation as well as liability." Id. at 1478. T h e conduct challenged unequivocally falls within the authority of the District A tto rn ey, as quasi-judicial officer of the court and in the ordinary exercise of his

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q u a s i -j u d i c ia l duties. Accordingly, Plaintiff's claims against the District Attorney should be d i s m i s s e d as frivolous. Failu re to State a Claim P l a i n ti f f names Agent T. Smith, Officer M. Teutsch, Deputy Hall and Deputy Prather a s defendants. A Section 1983 plaintiff has long been required to plead his case with "factual d etail and particularity," not mere conclusory allegations. Elliot v. Perez, 751 F.2d 1472, 1 4 7 3 (5th Cir. 1985)(Judgment vacated on other grounds); Hale v. Harney, 786 F.2d 688 (5th Cir. 1986). The Supreme Court has abolished this heightened pleading standard for claims a g a i n st municipalities, Leatherman v. Tarrant County Narcotics Intelligence and C o o r d i n a t io n Unit, 507 U.S. 163, 113 S.Ct. 1160 (1993), but the requirement remains firmly in place for claims against individual public officials. See Schultea v. Wood, 47 F.3d 1427 (5th Cir.1995). In this case, Plaintiff has named individual officials as defendants and is therefore r e q u i r e d to give factual details regarding their alleged constitutional rights violations. P l a i n ti f f has failed to do so as to these names Defendants. Accordingly, Agent T. Smith, O f f i c e r M. Teutsch, Deputy Hall and Deputy Prater should be dismissed from this complaint. Conclusion B e c a u s e Plaintiff filed this proceeding in forma pauperis ("IFP"), if this Court finds Pl ain tif f's complaint to be frivolous, it may dismiss the complaint as such at any time, before o r after service of process, and before or after answers have been filed. See 28 U.S.C. § 1915(e); Green v. M cK askle , 788 F.2d 1116, 1119 (5th Cir. 1986); Spears v. McCotter, 766 Page 24 of 27

F . 2 d 179, 181 (5th Cir. 1985). District courts are vested with extremely broad discretion in m a k i n g a determination of whether an IFP proceeding is frivolous and may dismiss a claim a s frivolous if the IFP complaint lacks an arguable basis either in law or in fact. See Hicks v . Garner, 69 F.3d 22 (5th Cir. 1995); Booker v. Koonce, 2 F.3d 114 (5th Cir. 1993); Neitzke v . Williams, 490 U.S. 319, 109 S.Ct. 1827 (1989). A cc or di ng ly; I T IS RECOMMENDED that the following claims be DISMISSED WITH P R E J UD I C E as frivolous and for failure to state a claim upon which relief may be granted pursuan t to 28 U.S.C. § 1915(e)(2)(B)(I) and (ii): ( 1 ) Claims against Sgt. Shelton, the Bossier City Police Department, and the Bossier City Police Chief arising out of his November 18, 2005 arrest; (2) Claims against the Parish o f Bossier arising out of his November 19, 2005 transfer; (3) Claims against Medical A s s i s ta n t Thornhill and Medical Assistant David arising out of his November 19, 2005 r e q u e s t for medical treatment; (4) Claims against Warden Weaver, Assistant Warden Stokes, Sgt. Wadsworth, Sgt. Jones, Deputy Pierce, Deputy Porter, and Deputy Martin arising out of d e n i a l of access to the courts while at Bossier Parish Maximum Security Facility from N o v e m b e r 10, 2005 until February 22, 2005; (5) Claims against Deputy Porter and Deputy M artin arising out of the search of his cell while incarcerated at the Bossier Parish Maximum Secu rity Facility from November 10, 2005 until February 22, 2005; (6) Claims against W a r d e n Weaver, Assistant Warden Stokes, Medical Officer Thornhill, and Medical Officer Da vid arising out of his February 20, 2006 medical examination; (6) Claims against Assistant Page 25 of 27

W a r d e n Stokes arising out of the February 22, 2006 confrontation; (7) Claims against M e d i c a l Assistant Broadenski arising out of his February 24, 2005 medical visit; (8) Claims a g a i n s t the Bossier Parish Sheriff's Department and the Bossier City Police Department a r i si n g out of his classification claims; (9) Claims against Sgt. Wadsworth, Sgt. Jones, De puty Martin, Deputy Porter, Deputy Pierce, Warden Dennis Weaver and Assistant Warden S t o k e s arising out of the denial of access to the courts; (10) Claims against George H e n d e r s o n ; (11) Claims against Assistant Warden Lee arising out of the prison disciplinary p r o c e e d i n g s ; (12) Claims against Assistant Warden Lee arising out of the prison a d m i n i s tr a t iv e grievance procedure; (13) Claims against Judge Stinson, Judge Bolin, Judge Ro binso n and Magistrate Judge Robert Shemwell; (14) Claims against Mary Jackson; (15) C l ai m s against the District Attorney; and (16) Claims against Agent T. Smith, Officer M. T eutsch , Deputy Hall and Deputy Prather. 4 IT IS FURTHER RECOMMENDED that Plaintiff's civil rights claim seeking mon etary compensation for his allegedly unconstitutional conviction and/or sentence be D I S M I SS E D WITH PREJUDICE as frivolous under 28 U.S.C. § 1915(e) until such time a s the Heck conditions are met.

Plaintiff still has claims remaining against the Bossier Parish Sheriff's Department, Sheriff Larry C. Dean, the Parish of Bossier, Warden Mark Toloso, Warden Dennis Weaver, Assistant Warden Joe Lee, Assistant Warden Stokes, Deputy Griffin, Deputy Orr, Deputy Hawn, Doctor Robert Russel, Doctor Haverton, Deputy J. Martin, Deputy Rodgers, Sgt. Parish, Bossier Parish Minimum Security Facility Medical Staff, and Steve Broadenski.
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O B J E C T IO N S U n d e r the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties a g g r i e v e d by this recommendation have fourteen (14) business days from service of this Repo rt and Recommendation to file specific, written objections with the Clerk of Court, u n l e s s an extension of time is granted under Fed. R. Civ. P. 6(b). A party may respond to a n o t h e r party's objection within seven (7) days after being served with a copy thereof. C o u n s e l are directed to furnish a courtesy copy of any objections or responses to the District J u d g e at the time of filing. A party's failure to file written objections to the proposed findings, conclusions and r e c o m m e n d a t i o n s set forth above, within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking, on appeal, the p r o p o s e d factual findings and legal conclusions that were accepted by the district court and t h a t were not objected to by the aforementioned party. See Douglas v. U.S.A.A., 79 F.3d 141 5 (5th Cir. 1996) (en banc). THUS DONE AND SIGNED, in chambers, in Shreveport, Louisiana, on this 22nd d a y of February, 2010.

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