Opinion
Civil Action 21-21-SDD-RLB
03-17-2021
JOSEPH MICHAEL ANDREWS (#7700006906) v. LIVINGSTON PARISH DETENTION CENTER, ET AL.
NOTICE
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.
In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court.
ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
The pro se Plaintiff, an inmate confined at the Livingston Parish Detention Center (“LPDC”), Livingston, Louisiana, filed this proceeding pursuant to 42 U.S.C. § 1983 against defendant Livingston Parish Detention Center and Government/Society complaining that his constitutional rights were violated while confined in the Transitional Unit.
Pursuant to 28 U.S.C. §§ 1915(e) and 1915A, this Court is authorized to dismiss an action or claim brought by a prisoner who is proceeding in forma pauperis or is asserting a claim against a governmental entity or an officer or employee of a governmental entity if satisfied that the action or claim is frivolous, malicious or fails to state a claim upon which relief may be granted. An action or claim is properly dismissed as frivolous if the claim lacks an arguable basis either in fact or in law. Denton v. Hernandez, 504 U.S. 25, 31 (1992), citing Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hicks v. Garner, 69 F.3d 22, 24-25 (5th Cir. 1995). A claim is factually frivolous if the alleged facts are “clearly baseless, a category encompassing allegations that are ‘fanciful,' ‘fantastic,' and ‘delusional.'” Id. at 32-33. A claim has no arguable basis in law if it is based upon an indisputably meritless legal theory, “such as if the complaint alleges the violation of a legal interest which clearly does not exist.” Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998). The law accords judges not only the authority to dismiss a claim which is based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the factual allegations. Denton v. Hernandez, supra, 504 U.S. at 32. Pleaded facts which are merely improbable or strange, however, are not frivolous for purposes of § 1915. Id. at 33; Ancar v. Sara Plasma, Inc., 964 F.2d 465, 468 (5th Cir. 1992). A § 1915 dismissal may be made any time, before or after service or process and before or after an answer is filed, if the court determines that the allegation of poverty is untrue; or the action is frivolous or malicious; fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2) and Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).
In his Complaint, the plaintiff alleges that he was housed in the Transitional Unit at LPDC due to a false charge. While housed in the Transitional Unit the plaintiff alleges that he was poisoned, beaten, shocked with a taser, shot with a red dot laser, and gassed. The plaintiff also alleges that witchcraft and sorcery were used in an attempt to kill him and he was poisoned three times per day for two weeks. The plaintiff further alleges that silent weapons tried to kill him while he was vomiting. The weapons ate into the wall like acid. The plaintiff alleges that he was targeted and tortured by the secret government.
The named defendants in this matter are LPDC and Government/Society. Section 1983 only imposes liability on a “person” who violates another's constitutional rights under color of law. In accordance with Rule 17(b) of the Federal Rules of Civil Procedure, Louisiana law governs whether a person or entity can be sued. Under Louisiana law, to possess such a capacity, an entity must qualify as a “juridical person.” This term is defined by the Louisiana Civil Code as an “entity to which the law attributes personality, such as a corporation or partnership.” See La. Civ. Code Ann. art. 24.
Additionally, in order for a person to be found liable under § 1983 the person must have been personally involved in conduct causing an alleged deprivation of the plaintiff's constitutional rights, or there must be a causal connection between the conduct of that person and the constitutional violation sought to be redressed. Lozano v. Smith, 718 F.2d 756, 768 (5th Cir. 1983).
In the instant matter, the plaintiff has not identified any person who, while acting under color of state law, was personally involved in conduct causing an alleged deprivation of his constitutional rights. A parish or municipal jail is “not an entity, but a building.” Savoy v. St. Landry Parish Council, 2008 WL 4822269 at *3 (W.D. La. Oct. 10, 2008). To the extent “Government” refers to the state government of Louisiana, neither a state nor its officers acting in their official capacities are “persons” within the meaning of § 1983. Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989). Nor is “Society.” To the extent “Government” refers to the Federal Government, the Federal Government is an improper defendant in this action. The plaintiff is not a federal inmate and has not alleged the involvement of a federal actor. See Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) (establishing right to bring lawsuit for money damages against individual law enforcement officials acting under cover of federal law for violations of constitutional rights); see also United States v. Mitchell, 445 U.S. 535, 538 (1980) (finding United States is sovereign and immune from suit unless unequivocally consents to being sued).
Furthermore, even if the plaintiff had a named a person within the meaning of § 1983, many of the plaintiff's allegations are frivolous in that they surpass being merely improbable or strange. Rather the plaintiff's allegations are fanciful.
To the extent that the plaintiff's allegations may be interpreted as seeking to invoke the supplemental jurisdiction of this court over potential state law claims, a district court may decline the exercise of supplemental jurisdiction if a plaintiff's state law claims raise novel or complex issues of state law, if the claims substantially predominate over the claims over which the district court has original jurisdiction, if the district court has dismissed all claims over which it had original jurisdiction, or for other compelling reasons. 28 U.S.C. § 1367. In the instant case, having recommended that the plaintiff's federal claims be dismissed, the Court further recommends that the exercise of supplemental jurisdiction be declined.
RECOMMENDATION
It is recommended that the Court decline the exercise of supplemental jurisdiction over any potential state law claims, and that this action be dismissed, with prejudice, as frivolous and for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. §§ 1915(e) and 1915A.
The plaintiff is advised that 28 U.S.C. § 1915(g) provides that, “In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section [Proceedings in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.”