Burgo v. Stratton et al

Filing 7

REPORT AND RECOMMENDATIONS re 5 Amended Complaint filed by Donald Burgo, 1 Complaint filed by Donald Burgo Objections to R&R due by 1/22/2010. IT IS RECOMMENDED that plaintiff's claims be DISMISSED WITH PREJUDICE. Signed by Magistrate Judge C Michael Hill on 1/4/10. (crt,Jordan, P)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA D O N A L D BURGO L A . DOC # 197078 V S. C I V I L ACTION NO. 6:09-1166 S E C T IO N P J U D G E HAIK D A W N ANNETTE STRATTON, ET AL. M A G I S T R A T E JUDGE HILL

R E P O R T AND RECOMMENDATION P r o se plaintiff, Donald Burgo, proceeding in forma pauperis, filed the instant c iv il rights complaint pursuant to 42 U.S.C. §1983 on July 9, 2009. Plaintiff is an inmate in the custody of Louisiana's Department of Public Safety and Corrections. He is in c a rc e ra te d at the C. Paul Phelps Corrections Center in DeQuincy, Louisiana. Plaintiff su ed his ex-wife, Dawn Stratton, his mother, Lois Burgo, and his wife's relative, Debra S tra tto n Cook Jagneaux, an officer of the Morgan City Police Department. Plaintiff c o m p la in s that Dawn Stratton and Lois Burgo have conspired to steal property belonging e ith e r to the plaintiff or to his father, James Burgo, and have engaged in a "conspiracy, e x to rtio n , exploitation of the infirm . . . [and] abuse of the legal system for spite, m o n e ta ry gain, and personal imprisonment . . . ." Plaintiff further complains that Dawn S tra tto n has "overtly been having me arrested by her relatives whom work in the Morgan C ity Police Department, Debra Stratton/Cook/Jagneaux." Plaintiff prays for compensatory damages in the amount of "$24,000,000.00 a n d /o r any portion of my father's estate she [Dawn Stratton] has stolen, laundered, or

d a m a g e d with interests compounded, loss of wages, emotional, mental and physical d a m a g e s , trauma inflicted . . . ." He also prays for the institution of criminal charges a g a in s t Ms. Stratton and for further investigation of Ms. Stratton regarding the alleged th e f ts . By separate pleading, plaintiff additionally seeks a freeze on the bank accounts of D a w n Stratton and Lois Burgos, as well as an official audit of their financial income and a s s e ts . [rec. doc. 5]. This matter has been referred to the undersigned for review, report, and re c o m m e n d a tio n in accordance with the provisions of 28 U.S.C. § 636 and the standing o rd e rs of the Court. Background P la in tif f is serving an eight year criminal sentence with the Louisiana Department o f Corrections. He was convicted on two counts of cruelty to the infirmed and then ad jud icated an habitual offender in the Sixteenth Judicial District Court for St. Mary P a ris h . See State of Louisiana v. Donald Christopher Burgo, 2007-KA-0227 (La. App. 1 C ir. 6/8/2007), 958 So.2d 1217 (unpublished);1 Burgo v. Ruiz,6:09cv1165 (W.D. La.).

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The facts of the case were provided by the First Circuit Court of Appeals as follows:

O n August 28, 2005, with Hurricane Katrina approaching the Louisiana coast, seventy-four year-old Lois Burgo c o n ta c te d her thirty-nine year-old son, defendant, and told him that she and her husband (defendant's father, James B u r g o ) would pick him up at his trailer in Amelia and let him stay with them at their home in Morgan City. Because o f the approaching storm, Mrs. Burgo felt that defendant would be safer with them than in his trailer in Amelia. W h e n Mrs. Burgo picked up the defendant in Amelia, she knew right away that he was `very angry' and suspected he w a s under the influence of some substance. After arriving at his parents' home located at 1700 Elk Street in Morgan C ity , defendant exited the truck and started yelling at one of his parents' neighbors across the street. Mrs. Burgo was fin a lly able to coax defendant to go inside the home.

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In his rambling Complaint, plaintiff names his ex-wife, Dawn Stratton, his mother, L o is Burgo, and Officer Debra Stratton Cook Jagneaux as defendants alleging the f o llo w in g : O n or about 8-28-06, Dawn Stratton (Divorced Wife), has been exploiting th e infirm, violation of R.S.14:93.4 against plaintiff's parents, James Burgo a n d Lois Burgo. She has threatened and absconded with my child (D ia m o n d Burgo) to the state of Texas previously. She has threatened Ja m e s and Lois Burgo by stating that [she] would abscond to Texas with D iam o n d Burgo, unless she was granted a restraining order, complete e x c o m m u n ic a tio n and contact between plaintiff and parents. Upon verbal a g re e m e n t between James Burgo, Lois Burgo and Dawn Stratton, that D ia m o n d Burgo would remain in parents' custody and domicile, a re stra in in g order was requested from the 16 th Judicial District Court and g ra n te d . As soon as restraining order was issued, Dawn Stratton absconded w ith Diamond Burgo to Texas. Thus creating an unnecessary and mutually u n w a n te d separation between family members. Through this type of vice, m a n ip u la tio n of the legal system for personal financial gain and power over o th e rs , motive and system, she has overtly been having me arrested by her relativ es whom work in the Morgan City Police Department, Debra S tra tto n /C o o k /J a g n e au x . My father, James Burgo, WW-II Veteran, M e m b e r of the Society of Naval Architects and Marine Engineers, has had b ra in surgery to remove blood clots. Post-Op has suffered memory lapses.

Once Mrs. Burgo and defendant got to the door of her home, defendant opened the door and said, `Ladies, first,' and th e n proceeded to push his mother through the door while yelling obscenities at her. Defendant's father, who was e i g h t y - tw o years old and recovering from recent brain surgery, told defendant to stop talking to his mother that way. D e fe n d a n t told Mr. Burgo that he would talk to them any way he wanted, and then struck his father. D e fe n d a n t walked out of the house and into the backyard to check on his dog. At this time, Mrs. Burgo took her h u s b a n d by his hand, assisted him into the den, and went to the phone to call for help. Defendant then returned and h it Mr. Burgo again, knocking him to the floor. Defendant pulled the phone from his mother's hand, threw it to the flo o r , and hit his mother in the front of her head, knocking off her glasses and cutting her nose. Mrs. Burgo fell to the c o u c h , then to the floor. Mrs. Burgo thought defendant was going to attack Mr. Burgo again, so she placed herself o v e r her husband's body as defendant struck her on the side of her head again. A t that moment, Officer John Schaff of the Morgan City Police Department entered the home and discovered the B u r g o s coming toward the door as if they were being chased. Behind them came defendant, who was holding a dog le a sh . Defendant was arrested and taken to jail. During a pat down of defendant, Officer Schaff recovered a metal p i p e from defendant's left pocket with some residue of suspected narcotics. State of Louisiana v. Donald C h r is to p h e r Burgo, 2007-KA-0227 (6/8/2007) at pp. 2-3.

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T e stif ied during trial under oath, `The women were telling him what to re m e m b e r' upon record. Dawn Stratton, by means of coersion, unlawful a rre sts , current incarceration, is exploiting my father, trying to obtain his s ig n a tu re and power of attorney. With their exhibited motive to connive for m o n e ta ry gain, they may have stolen from my property, possessions, land, to o ls , as well as that of my father's while I have been incarcerated. Dawn S tra tto n has been using Lois Burgo by means of monopolizing visitations w ith my daughter as vice, coersion, manipulation and theft. This e x p lo itatio n of my family, miscarriage of justice needs to be thoroughly in v e stig a te d and quelled. [rec. doc. 1, p. 4] L a w and Analysis S c r e e n in g W h e n a prisoner sues an officer or employee of a governmental entity pursuant to 42 U.S.C. §1983, the court is obligated to evaluate the complaint and dismiss it without s e rv ic e of process, if it is frivolous, malicious, fails to state a claim upon which relief can b e granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U .S .C .1 9 1 5 A ; 28 U.S.C.1915(e)(2). Ali v. Higgs, 892 F.2d 438, 440 (5th Cir.1990). A claim is frivolous if it lacks an arguable basis in law or in fact. Booker v. K o o n c e , 2 F.3d 114, 115 (5th Cir.1993); Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1 7 2 8 , 1733, 118 L.Ed.2d 340 (1992). When "it is clear from the face of a complaint filed in forma pauperis that the claims asserted are barred by the applicable statute of lim ita tio n s " , those claims are properly dismissed as frivolous. Moore v. McDonald, 30 F .3 d 616, 620 (5th Cir. 1994); Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993). A d is tric t court may raise the limitation period sua sponte. See Harris v. Hegmann, 198 F.3d 1 5 3 (5th Cir. 1999). 4

A civil rights complaint fails to state a claim upon which relief can be granted if it a p p e ars that no relief could be granted under any set of facts that could be proven c o n sis te n t with the allegations of the complaint. Of course, in making this determination, th e court must assume that all of the plaintiff's factual allegations are true. Bradley v. P u c k e tt, 157 F.3d 1022, 1025 (5th Cir.1998). P la in tif f has set forth specific facts which he claims entitles him to relief and he h a s pleaded his best case. The facts alleged by plaintiff have been accepted as true for the p u rp o s e s of this Report. Nevertheless, plaintiff's claims are subject to dismissal for the re a s o n s that follow. N o n - S ta t e Actors T o prevail on a civil rights claim an inmate must prove that he was deprived, under c o lo r of law, of rights, privileges, or immunities secured by the United States Constitution a n d laws. 42 U.S.C. § 1983; Banuelos v. McFarland, 41 F.3d 232, 234 (5th Cir.1995). Under the "color of law" requirement, the defendants, in a § 1983 action, must have c o m m itte d the complained-of acts in the course of their performance of duties and have m is u s e d power that they possessed by virtue of state law and made possible only because th e wrongdoer is clothed with the authority of state law. United States v. Classic, 313 U .S . 299, 325 (1941); Screws v. United States, 325 U.S. 91, 110 (1944) (plurality o p in io n ).

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T t is clear that neither plaintiff's ex-wife, Dawn Stratton, nor his mother, Lois B u r g o , are state actors as required for liability under § 1983. To the contrary, these w o m e n are merely private citizens who were in no way clothed with the authority of state la w . Further, there is no factual basis to support any claim of a conspiracy between these w o m e n and Officer Jagneaux to support a claim of state action. See Marts v. Hines, 68 F .3 d 134, 136 (5th Cir. 1995); Mills v. Criminal District #3, 837 F.2d 677 (5th Cir. 1 9 8 8 ); See also Babb v. Dorman, 33 F.3d 472, 476 (5th Cir. 1994) citing Lynch v. C a n n a tella , 810 F.2d 1363, 1369-70 (5th Cir. 1987) (finding that bald, conclusory a lleg a tio n s that a conspiracy exists are insufficient to state a conspiracy claim); Young v. B ig g e r s, 938 F.2d 565, 569 (5th Cir. 1991); Rodriguez v. Neeley, 169 F.3d 220, 222 (5 th C ir. 1999) citing McAfee v. 5th Circuit Judges, 884 F.2d 221 (5th Cir.1989). Plaintiff's c iv il rights claims against Dawn Startton and Lois Burgo should therefore be dismissed as f a ilin g to state claims upon which relief may be granted. S ta tu te of Limitations P la in tif f has also sued Officer Jagneaux, who is presumably a state actor, alleging o n ly that Officer Jagneaux was responsible for various wrongful arrests of the plaintiff. Although plaintiff does not set forth the date of these allegedly wrongful arrests, it is clear that these wrongful arrests occurred prior to plaintiff's present incarceration. This court's re c o rd s and the jurisprudence of the State of Louisiana reveal that plaintiff was arrested o n August 28, 2005, he was convicted in 2006 of two counts of cruelty to the infirmed for

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w h ic h he was ultimately sentenced to serve eight years imprisonment, and his convictions a n d habitual offender adjudication were affirmed on direct appeal on June 8, 2007. See State of Louisiana v. Donald Christopher Burgo, 2007-KA-0227 (La. App. 1 st Cir. 6 /8 /2 0 0 7 ), 958 So.2d 1217 (unpublished); Burgo v. Ruiz, 6:09-1165 (W.D.La. 2009). Plaintiff has been in continuous custody on the felony charges for which he now stands c o n v ic te d and for which he is now imprisoned, since, at the latest, the date his convictions a n d habitual offender adjudication were affirmed on direct appeal, June 8, 2007. Moreover, according to the available evidence, Officer John Schaff, and not Officer Ja g n e a u x , was the arresting officer on that date. 2 Thus, any allegedly false arrests a ttr ib u ta b le to Officer Jagneaux occurred, at the latest, prior to June 8, 2007. The Supreme Court has held that the statute of limitations for a §1983 action is the sa m e as the statute of limitations in a personal injury action in the state in which the claim a ro s e . Wilson v. Garcia, 471 U.S. 261, 279-280, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1984). The Fifth Circuit has approved application of Louisiana's one-year personal injury statute o f limitations provided by La. Civ.Code Ann. art. 3492 in a § 1983 action. Lavellee v. L isti, 611 F.2d 1129 (5 th Cir. 1980). However, the date of accrual for a §1983 claim is a q u e s tio n of federal law. Wallace v. Kato, 549 U.S. 384, 127 S.Ct. 1091, 1095, 166 L .E d .2 d 973 (2007); Piotrowski v. City of Houston, 51 F.3d 512 (5th Cir. 1995); Longoria v . City of Bay City, 779 F.2d 1136 (5th Cir. 1986).

2

See footnote 1, supra.

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Here, plaintiff complains of allegedly wrongful arrests by Officer Jagneaux, a re la tiv e of his estranged spouse, which, in accordance with the above analysis, occurred, a t the latest, prior to June 8, 2007, when plaintiff's convictions and multiple offender a d ju d ic a tio n were affirmed on direct appeal. Plaintiff was undoubtedly aware of each alleg ed wrongful arrest on the date each occurred. Thus, under federal law, plaintiff's c la im against Officer Jagneaux accrued, at the latest, on June 8, 2007, when plaintiff e ith e r knew or should have known the facts on which his constitutional violation is based, w h e th e r or not he realized a legal cause of action existed. See Piotrowski, 51 F.3d at 516 q u o tin g Vigman v. Community National Bank and Trust Co., 635 F.2d 455, 459 (5th Cir. 1 9 8 1 ). Since plaintiff's claim accrued, at the latest, on June 8, 2007, plaintiff had one ye a r, or until June 8, 2008 to file his federal § 1983 action. However, this action was not f ile d until July 9, 2009, over two years after his claim accrued and over one year after the lim itatio n period had expired. Thus, plaintiff's §1983 action against Officer Jagneaux is c le a rly barred by the one year statute of limitations. Accordingly, plaintiff's claims a g a in s t Officer Jagneaux should be dismissed on this basis as frivolous. Accordingly; I T IS RECOMMENDED that plaintiff's claims against his ex-wife, Dawn S tra tto n , and his mother, Lois Burgo, be DISMISSED WITH PREJUDICE pursuant to 2 8 U.S.C. §§1915(e)(2)(B)(ii) and 1915A(b)(1) because plaintiff has failed to state a c la im upon which relief may be granted.

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I T IS FURTHER RECOMMENDED that plaintiff's claims against Debra S tra tto n Cook Jagneaux be DISMISSED WITH PREJUDICE as frivolous pursuant to the provisions of 28 U.S.C. § § 1915(e)(2)(B)(i) and 1915A(b)(1). U n d er the provisions of 28 U.S.C. §636(b)(1)(C) and Fed.R.Civ.Proc. 72(b), p a rtie s aggrieved by this recommendation have fourteen (14) business days from service o f this report and recommendation to file specific, written objections with the Clerk of C o u rt. A party may respond to another party's objections within fourteen (14) days after b e in g served with a copy thereof. F a ilu r e to file written objections to the proposed factual finding and/or the p r o p o se d legal conclusions reflected in this Report and Recommendation within fo u r te e n (14) days following the date of its service, or within the time frame a u t h o r iz e d by Fed.R.Civ.P. 6(b), shall bar an aggrieved party from attacking either th e factual findings or the legal conclusions accepted by the District Court, except u p o n grounds of plain error. See Douglas v. United Services Automobile Association, 7 9 F.3d 1415 (5 t h Cir. 1996). In chambers, Lafayette, Louisiana, January 4, 2010.

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