Simoneaux v. Epps et al
Filing
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Memorandum Opinion and Order dismissing Defendants Laura Tilley and Latasha Clay without prejudice. Signed by District Judge Keith Starrett on August 26, 2013 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
RICHARD SIMONEAUX, # T7765
PLAINTIFF
VERSUS
CIVIL ACTION NO. 2:13CV113-KS-MTP
CHRISTOPHER EPPS, RONALD KING,
HUBERT DAVIS, BRENDA SIMMS,
LATISHA JOHNSON, LAURA TILLEY, and
LATASHA CLAY
DEFENDANTS
MEMORANDUM OPINION AND ORDER DISMISSING TILLEY AND CLAY
BEFORE THE COURT are pro se Plaintiff Richard Simoneaux’s pleadings. He is
incarcerated with the Mississippi Department of Corrections and challenges the conditions of his
confinement. The Court has considered and liberally construed the pleadings. As set forth
below, Defendants Laura Tilley and Latasha Clay are dismissed.
BACKGROUND
On May 29, 2013, Simoneaux initiated this civil action. He is located at South
Mississippi Correctional Institution, where Tilley and Clay both work in the Inmate Legal
Assistance Program. He subsequently amended the Complaint to name them Defendants. As is
relevant to them, he alleges that on or about June 28, he had attempted to file a Declaration and
Pleading in Support of Statement of Claim. He gave it to Tilley and Clay to mail to the Court.
For some reason, the pleading never made it, and Tilley and Clay had no record of mailing it.
He then had to rewrite the Declaration [16], and it was filed with the Court on August 14. The
Declaration is a supplement to the original Complaint.
DISCUSSION
Simoneaux sues Tilley and Clay under 42 U.S.C. § 1983 and, construed liberally, under
state law for failing to file the Declaration earlier.
The Prison Litigation Reform Act of 1996, applies to prisoners proceeding in forma
pauperis in this Court. One of the provisions reads, “the court shall dismiss the case at any time
if the court determines that . . . the action . . . –(i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The statute “accords judges not only the
authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual
power to pierce the veil of the complaint's factual allegations and dismiss those claims whose
factual contentions are clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). “[I]n an
action proceeding under Section 1915(d), [a federal court] may consider, sua sponte, affirmative
defenses that are apparent from the record even where they have not been addressed or raised.”
Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990). “Significantly, the court is authorized to test the
proceeding for frivolousness or maliciousness even before service of process or before the filing
of the answer.” Id. The Court has permitted Simoneaux to proceed in forma pauperis in this
action. His Complaint is subject to sua sponte dismissal under Section 1915.
Simoneaux alleges absolutely no damages from Tilley and Clay’s alleged mishandling of
his Declaration. He was not prevented from filing the pleading or prosecuting any of the claims
because of this. For this reason, he does not state a claim for denial of access to the courts.
Christopher v. Harbury, 536 U.S. 403, 413, 416 (2002). Likewise, damages are an essential
element to a state law claim of negligence. Duckworth v. Warren, 10 So. 3d 433, 440 (¶23)
(Miss. 2009). Therefore, he fails to state a claim upon which relief may be granted against either
of these Defendants. He admits that he was able to file the pleading, and it is now before the
Court. These two Defendants are therefore dismissed without prejudice, and this dismissal
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counts as a strike pursuant to 28 U.S.C. § 1915(g).
IT IS THEREFORE ORDERED AND ADJUDGED that, for the reasons stated above,
Defendants Laura Tilley and Latasha Clay should be and are hereby DISMISSED WITHOUT
PREJUDICE for failure to state a claim against them upon which relief could be granted. This
dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g). The remainder of the case shall
proceed.
SO ORDERED, this the 26th day of August, 2013.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
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