Opinion
Civil Action 1:23-cv-00338-LG-RPM
01-10-2025
OSCAR THOMAS PLAINTIFF v. RACHEL JEWELL, et al. DEFENDANTS
REPORT AND RECOMMENDATION
ROBERT P. MYERS, JR. UNITED STATES MAGISTRATE JUDGE
On November 29, 2023, pro se Plaintiff Oscar Thomas filed this civil action under 42 U.S.C. § 1983, against six Defendants: (1) Dt. Lt. Rachel Jewell, (2) Dt. Sgt. Steven Lee Saucier, (3) Dt. E.J. Taylor, (4) Dt. Ian Larsen, (5) Dt. James Sancher, and (6) Sgt. Dave Wilder. [1] at 2.When he filed this lawsuit, Thomas was an inmate housed at the Hancock County Public Safety Complex in Bay St. Louis, Mississippi. Id. at 1. He is now housed in the custody of the Mississippi Department of Corrections (“MDOC”). [26] at 1. Thomas is proceeding in forma pauperis [6].
Thomas also sued the Bay St. Louis Police Department, [1] at 2, but he subsequently amended his Complaint to replace the Bay St. Louis Police Department with the City of Bay St. Louis, Mississippi, as Defendant, [10] at 1. The City of Bay St. Louis was then dismissed because “Thomas ha[d] failed to allege sufficient facts to maintain this action against” it. [12] at 4.
On May 20, 2024, Defendants filed a Motion [20] to Dismiss under Federal Rule of Civil Procedure 12(b)(6). Thomas has not responded. For the following reasons, the undersigned recommends that Defendants' Motion [20] to Dismiss be granted. Thomas's Fourth, Fifth, and Ninth Amendment claims should be dismissed with prejudice, his Sixth and Eighth Amendment claims should be dismissed without prejudice, and this case should be closed.
Before the Motion [20] to Dismiss was filed, Jewell, Taylor, Larsen, Sancher, and Wilder had waived [17] service of process. When Saucier did not timely waive service of process, a summons was issued [18] to him on May 7, 2024. On May 23, 2024, counsel for the other Defendants appeared [22] [23] on Saucier's behalf, and Saucier joined [24] the pending Motion [20] to Dismiss.
I. BACKGROUND
The events giving rise to this lawsuit occurred on November 5, 2020, in Bay St. Louis. [1] at 4. Thomas claims that he was detained by Saucier under the pretense of “fail[ing] to use [a] traffic signal,” id.; see also [8] at 1, though he was actually detained “as a suspect to a homicide that happen[ed] a few days prior,” [11] at 1. Jewell, who is Saucier's superior, allegedly authorized the stop “from false information and hearsay that had no [relationship] to traffic infractions.” [8] at 1. Thus, Thomas claims that his detention was “unwarranted” and unsupported by probable cause. Id. Thomas claims that Taylor, Larsen, Sancher, and Wilder “assisted” with the stop and search. Id. at 2.
During the stop, Saucier “never approached [Thomas's] vehicle to ask [him] for [his] license [and] registration” or to tell him why he was detained. Compl. [1] at 4. Instead, Saucier held Thomas “at gunpoint” from the door of his police vehicle and “coerced [Thomas] into step[ping] outside of [his] vehicle.” Id. Thomas claims that he “complied with [his] hands up” but was subsequently “tackled, handcuffed and handed to another investigator.” Id. He was then “escorted across the street . . . while two investigators search[ed] [his] vehicle without asking [for] consent.” Id. Allegedly, officers also searched Thomas's person without providing a Miranda warning. Id. During this time, Thomas “relayed [to the officers] the whereabouts of [his] pistol,” which was in his vehicle. Id. at 5.
Miranda v. Arizona, 384 U.S. 436 (1966) (outlining procedural safeguards to protect the Fifth Amendment privilege against self-incrimination).
Thomas was then transported to the police station. Id. While he was in custody, officers “accused [Thomas] of driving the vehicle while it was flagged as stolen,” which he claims is “false.” Id. They also accused Thomas of knowing “the gun was stolen when [he] purchased it,” which he claims “is also false.” Id. Thomas alleges that Saucier provided “false” testimony about these events at a suppression hearing on December 2, 2021. [11] at 2; see also United States v. Thomas, No. 1:21-cr-00014-HSO-RPM (S.D.Miss.) (Minute Entry, Dec. 2, 2021).
On January 11, 2022, Thomas was charged by superseding indictment in this Court with (1) being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and (2) being an unlawful user of a controlled substance in possession of a firearm under 18 U.S.C. §§ 922(g)(3) and 924(a)(2). Thomas, No. 1:21-cr-00014-HSO-RPM (Doc. 52 at 1). On March 4, 2022, Thomas pled guilty to being a felon in possession of a firearm, Thomas, No. 1:21-cr-00014-HSO-RPM (Minute Entry, Mar. 4, 2022); see also (Doc. 68 (“Plea Agreement”)), and he was later sentenced to 110 months in the custody of the Bureau of Prisons, “to be served concurrently with any state term of imprisonment that may be imposed related to the criminal conduct that occurred on November 5, 2020,” Thomas, 1:21-cr-00014-HSO-RPM (Minute Entry, June 16, 2022); see also (Doc. 78 (“Judgment”)); [11] at 1.
On April 4, 2024, Thomas pled guilty in the Hancock County Circuit Court to possession of a controlled substance with intent under Mississippi Code § 41-29-139(a)(1). State of Miss. v. Thomas, No. 23CI1:22-cr-00137 (Hancock County Circuit Court) (Doc. 38 at 1). Thomas was sentenced as a habitual offender to serve 12 years in MDOC custody “without hope of parole or early release.” Thomas, No. 23CI1:22-cr-00137 (Doc. 50 at 2). Thomas is incarcerated at the Leake County Correctional Facility in Carthage, Mississippi, with a tentative release date of May 25, 2036. See https://www.ms.gov/mdoc/inmate/Search/GetDetails/251837 (last accessed Jan. 7, 2025). Thomas's federal and state convictions and sentences have not been reversed, expunged, or otherwise declared invalid or called into question. [11] at 1; see also Thomas v. State of Miss., No. 2024-TS-00714 (Miss. Sept. 4, 2024) (dismissing appeal “for lack of an appealable judgment”); United States v. Thomas, No. 22-60367 (5th Cir. Jan. 6, 2023) (dismissing appeal “based on the appeal waiver in Thomas's written plea agreement”).
Thomas claims a violation of his Fourth, Fifth, Sixth, Eighth, and Ninth Amendment rights. [1] at 5; [8] at 1; [11] at 2. He asks the Court to expunge his “wrongful incarceration, arrest [and] related conviction from [his] criminal history.” [1] at 4. He also requests an unspecified measure of compensatory damages. Id.
II. GOVERNING PRINCIPLES
A. Standard of Review
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “A court must accept all well-pleaded facts as true, view them in the light most favorable to the plaintiff, and draw all reasonable inferences in the plaintiff's favor.” Culumber v. Morris Network of Miss., Inc., No. 1:23-cv-00219-HSO-BWR, 2024 WL 3513496, at *2 (S.D.Miss. July 23, 2024). “A claim may not be dismissed under Rule 12(b)(6) unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Housley v. Harrison Cnty., Miss., No. 1:14-cv-00205-LG-JCG, 2014 WL 6471426, at *1 (S.D.Miss. Nov. 18, 2014). “The issue is not whether the [plaintiff] will ultimately prevail, but whether [he is] entitled to offer evidence to support [his] claims.” Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007).
At this stage, the Court need not “accept as true conclusory allegations or unwarranted deductions of fact.” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (quotation omitted). “It is well-established that pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers.” Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (quotation omitted; emphasis added). “However, regardless of whether the plaintiff is proceeding pro se or is represented by counsel, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” Id. (quotation omitted).
B. Scope of Review
“Ordinarily, a court decides a motion to dismiss for failure to state a claim looking only at the face of the complaint.” E.H. v. Miss. Dep't of Educ., No. 3:12-cv-00474-DPJ-FKB, 2013 WL 4787354, at *1 (S.D.Miss. Sept. 6, 2013). “If ‘matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.'” Id. (quoting FED. R. CIV. P. 12(b)(6)). But “some documents outside the pleadings may be considered under Rule 12(b)(6),” id., including “matters of public record . . . and any other matters of which [the Court] may take judicial notice,” Jones v. Jones Cnty., No. 2:22-cv-00093-KS-MTP, 2024 WL 1604651, at *4 (S.D.Miss. Apr. 12, 2024) (internal citations omitted). “While reviewing a motion to dismiss, courts may take judicial notice of court pleadings in other cases, because pleadings are public records.” Noble v. Bank of Am., N.A., No. 1:15-cv-00352-LG-RHW, 2016 WL 70859, at *1 (S.D.Miss. Jan. 6, 2016). “In the context of pro se complaints, courts are required to look beyond the plaintiff's formal complaint and to consider as amendments to the complaint those materials subsequently filed.” Culumber, 2024 WL 3513496, at *3 (quotations and alterations omitted).
In line with these principles, the undersigned has considered the entirety of Thomas's pleadings (his Complaint and responses to the Court's questionnaires), along with the federal- and state-court records of his criminal proceedings.
III. DISCUSSION
Defendants argue that Thomas's Complaint must be dismissed for two reasons: (1) he has failed to plead a constitutional violation, and (2) Defendants are entitled to qualified immunity. [21] at 4. “If the alleged conduct did not violate a constitutional right, the inquiry ends because there is no constitutional violation for which [a] government official would need qualified immunity.” Est. of Parker v. Miss. Dep't of Pub. Safety, No. 1:23-cv-00185-TBM-RPM, 2024 WL 1345699, at *7 (S.D.Miss. Mar. 29, 2024). Because Thomas has failed to establish a constitutional violation, no talk of qualified immunity is necessary. As a reminder, Thomas claims a violation of his Fourth, Fifth, Sixth, Eighth, and Ninth Amendment rights. [1] at 5; [8] at 1; [11] at 2.
A. Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.U.S. CONST. amend. IV. Liberally construing Thomas's pleadings, his Fourth Amendment claims include false arrest, illegal search, and illegal seizure. [1] at 5; [8] at 2; [11] at 2. Defendants argue that these claims are barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). [21] at 4-6.
“In Heck, the Supreme Court held that if a plaintiff's civil rights claim for damages challenges the validity of his criminal conviction or sentence, and the plaintiff cannot show that such conviction or sentence has been reversed, invalidated, or otherwise set aside, the claim is not cognizable under § 1983.” Magee v. Reed, 912 F.3d 820, 822 (5th Cir. 2019). “Heck requires the district court to consider ‘whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.'” Ballard v. Burton, 444 F.3d 391, 396 (5th Cir. 2006) (quoting Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir. 1995)). “This requirement or limitation has become known as the ‘favorable termination rule.'” Id. (quoting Sappington v. Bartee, 195 F.3d 234, 235 (5th Cir. 1999)).
“It is immediately clear that . . . the rationale of Heck precludes [Thomas's] claim of false arrest.” See Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995). Thomas pled guilty in federal court to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) and § 924(a)(2). Thomas, No. 1:21-cr-00014-HSO-RPM (Minute Entry, Mar. 4, 2022); see also (Doc. 68 (“Plea Agreement”)). He pled guilty in state court to possession of a controlled substance with intent under Mississippi Code § 41-29-139(a)(1). Thomas, No. 23CI1:22-cr-00137 (Doc. 38 at 1). Both convictions stemmed from his arrest on November 5, 2020, and any finding that Thomas was falsely arrested would necessarily imply their invalidity. And Thomas admits that his convictions and sentences have not “been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” See Heck, 512 U.S. at 487; [11] at 1.
Thus, Thomas's false-arrest claim is Heck-barred. See, e.g., Walter v. Horseshoe Ent., 483 Fed.Appx. 884, 887 (5th Cir. 2012) (“Heck . . . bars recovery for the false arrest claim, because the conviction necessarily implies that there was probable cause for the arrest.”); Walker v. City of Gulfport, No. 1:13-cv-00331-LG-JCG, 2014 WL 12649008, at *5 (S.D.Miss. Nov. 24, 2014) (finding false-arrest claim Heck-barred because the plaintiff would have “to negate . . . that he was lawfully arrested” to prevail); Winters v. City of Gulfport, No. 1:14-cv-00222-HSO-RHW, 2014 WL 6476264, at *3 (S.D.Miss. Nov. 19, 2014) (finding false-arrest claim Heck-barred where the plaintiff “pled guilty to the charges emanating from the traffic stop and arrest”).
But “Section 1983 claims based on an illegal stop, search, or seizure do not always implicate Heck.” Russell v. McGee, No. 2:19-cv-00039-KS-MTP, 2020 WL 2310404, at *2 (S.D.Miss. Mar. 9, 2020), report and recommendation adopted by 2020 WL 2308086, at *1 (S.D.Miss. May 8, 2020). The Heck Court “explained that all claims based on violations of the Fourth Amendment do not necessarily imply the invalidity of an underlying conviction . . . because . . . doctrines such as independent source, inevitable discovery, and harmless error . . . could permit the introduction of illegally obtained evidence.” Id. (citing Heck, 512 U.S. at 487 n.7). “[T]he independent source doctrine allows trial courts to admit evidence obtained in an unlawful search if officers independently acquired it from a separate, independent source.” Utah v. Strieff, 579 U.S. 232, 238 (2016). “[T]he inevitable discovery doctrine allows for the admission of evidence that would have been discovered even without the unconstitutional source.” Id. And the admission of evidence is harmless error if the evidence “was unnecessary to the conviction.” See Thompson v. Link, No. 2:19-cv-00252, 2019 WL 6359238, at *2 (W.D. La. Nov. 27, 2019); see also Weems v. Conley, 770 Fed.Appx. 237, 238 (5th Cir. 2019) (finding that unlawful-search-and-seizure claim was Heck-barred because “[t]he firearm that served as the basis for [the plaintiff's] convictions was a direct and indirect product of the allegedly unlawful entry, search, seizure, and arrest”).
Nothing in the record suggests that these doctrines apply here. See Hinton v. Joliff, No. 5:16-cv-00015-DCB-MTP, 2016 WL 11477356, at *2 (S.D.Miss. Aug. 31, 2016), report and recommendation adopted by 2016 WL 7190577, at *2 (S.D.Miss. Dec. 12, 2016). Thomas's pleadings show that the discovery of the evidence against him depended on Defendants' alleged misconduct. The discovery of that evidence was not inevitable; the evidence in his vehicle would not have been found without the alleged illegal stop, search, and seizure on November 5, 2020. See id. at *2 n.3. And the evidence found during the stop-Thomas's firearm and his drug paraphernalia-was necessary to his federal and state convictions, respectively. As long as those convictions and the resulting sentences have not been invalidated, Thomas's illegal-search and illegal-seizure claims are Heck-barred too. See, e.g., Shugart v. Six Unknown Fannin Cnty. Sheriffs, 694 Fed.Appx. 299, 299 (5th Cir. 2017) (holding that illegal-search-and-seizure claims were Heck-barred because the evidence obtained “would not otherwise have been admissible on an alternative basis, [so] a judgment on those claims in [the plaintiff's] favor would necessarily imply the invalidity of his drug conviction”).
Thus, the undersigned recommends that Thomas's Fourth Amendment claims be dismissed with prejudice until the Heck conditions are met. See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996) (directing that Heck-barred claims be “dismissed with prejudice to their being asserted again until the Heck conditions are met”).
B. Fifth Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . .; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.U.S. CONST. amend. V. Thomas appears to argue that Defendants violated his Fifth Amendment right against self-incrimination by failing to provide the Miranda warnings when he was arrested. [1] at 4 (“I was searched without being Mara[n]dize[d] [sic].”); [8] at 2 (“[N]one of the officer[s] . . . Marandad [sic] me my rights.”).
Defendants argue that Thomas's Fifth Amendment claim fails because none of them are federal actors. [21] at 6. “The Fifth Amendment applies only to violations of constitutional rights by the United States or a federal actor.” Jones v. City of Jackson, 203 F.3d 875, 880 (5th Cir. 2000). Thomas does not argue that Defendants were federal actors; he admits that each of them worked for the City of Bay St. Louis. [1] at 2. “Because the officers are not federal actors, [Thomas's] claim that they violated his Fifth Amendment . . . rights cannot survive . . . [Defendants'] motion to dismiss.” See Ristow v. Hansen, 719 Fed.Appx. 359, 364 (5th Cir. 2018); see also Hobgood v. Bordelon, No. 1:11-cv-00252-LG-RHW, 2013 WL 2491061, at *4 (S.D.Miss. June 10, 2013) (“Hobgood does not allege that any of the Defendants were acting under authority of the federal government, and therefore he has no cause of action under the Fifth Amendment.”).
Moreover, “Miranda warnings are a procedural safeguard rather than a right explicitly stated in the Fifth Amendment.” Neighbour v. Covert, 68 F.3d 1508, 1510 (2d Cir. 1995). “Violations of the prophylactic Miranda procedures do not amount to violations of the Constitution itself and, as such, fail to raise a cause of action under § 1983.” Foster v. Carroll Cnty., 502 Fed.Appx. 356, 358 (5th Cir. 2012); see also Vega v. Tekoh, 597 U.S. 134, 152 (2022) (declining to extend Miranda “to confer a right to sue under § 1983”); Hill v. Goodwin, No. 3:18-cv-00015-GHD-JMV, 2018 WL 1734913, at *5 (N.D. Miss. Apr. 10, 2018) (“The failure to give a Miranda warning does not raise a cause of action under § 1983.” (emphasis added)). “Rather, to establish a violation of his Fifth Amendment right, [Thomas] must allege that he ‘made a statement that implicated his constitutional right to protection against self-incrimination.'” See Hill, 2018 WL 1734913, at *5 (quoting Foster, 502 Fed.Appx. at 358). Thomas makes no such allegation, reporting instead that he denied the allegations against him when confronted by police. [1] at 5.
Thomas's Fifth Amendment claim should also be dismissed with prejudice. See, e.g., Jackson v. Harris, 446 Fed.Appx. 668, 670 (5th Cir. 2011) (“[The plaintiff's] claim regarding Miranda does not amount to a cognizable constitutional violation under § 1983 because [he] made no statement that was introduced in an incriminating manner.”); Hamilton v. McLemore, No. 2:19-cv-00047-KS-MTP, 2020 WL 10817487, at *2 (S.D.Miss. July 8, 2020) (“Any claims alleged or pled, wherein Plaintiffs seek to recover damages under 42 U.S.C. § 1983 for Miranda violations, are dismissed with prejudice.”).
C. Sixth Amendment
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.U.S. CONST. amend. VI. Thomas invokes the Sixth Amendment, [1] at 5, but he fails to explain how Defendants allegedly violated his Sixth Amendment rights. Thomas does not claim that he was denied a speedy trial, an impartial jury, confrontation of witnesses, compulsory process, or the assistance of counsel. In fact, Thomas's pleadings do not concern his criminal prosecutions at all-focusing instead on the stop, search, and arrest preceding them.
Though courts “apply less stringent standards to parties proceeding pro se than to parties represented by counsel,” Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995), the undersigned will not “invent, out of whole cloth, novel arguments on behalf of a pro se plaintiff,” see Jones v. Alfred, 353 Fed.Appx. 949, 952 (5th Cir. 2009). The Court cannot “raise and discuss legal issues that [Thomas] has failed to assert,” see Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987), nor may the Court “speculate that [he] . . . might be able to state a claim if given yet another opportunity to add more facts to the complaint,” see Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994) (quotation omitted). Because Thomas “provides only cursory reference to the [Sixth] Amendment” in his Complaint (and nowhere else in the pleadings), see Longoria v. Dretke, 507 F.3d 898, 901 (5th Cir. 2007), the undersigned recommends that his Sixth Amendment claims be dismissed without prejudice. See Fells v. City of Gulfport, Miss., No. 1:17-cv-00202-LG-RHW, 2017 WL 4124178, at *3 (S.D.Miss. Sept. 18, 2017) (dismissing claim without prejudice under Rule 12(b)(6) where the complaint's allegations were too threadbare to merit substantive consideration).
D. Eighth Amendment
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST. amend. VIII. As with his Sixth Amendment claims, Thomas repeatedly invokes the Eighth Amendment, [1] at 5; [8] at 2; [11] at 2, but he fails to explain how Defendants allegedly violated his Eighth Amendment rights.
“The protections of the Eighth Amendment apply only to convicted inmates, not suspects or even pretrial detainees.” Hobgood, 2013 WL 2491061, at *4. Thomas “makes no allegation that he was a prisoner” at the time of the events described in his Complaint, so he “does not allege any mistreatment that falls under the Eighth Amendment's prohibition.” See id. The undersigned recommends that Thomas's Eighth Amendment claims be dismissed without prejudice too. See, e.g., Marquar v. Allen, No. 1:11-cv-00054-LG-RHW, 2013 WL 11522048, at *4 (S.D.Miss. Apr. 2, 2013) (concluding that a plaintiff “ha[d] no Eighth Amendment claim” for these reasons).
E. Ninth Amendment
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S. CONST. amend. IX. Thomas appears to argue that Defendants violated his Ninth Amendment rights by failing to “secure . . . the [other] rights retained by [him].” [8] at 1. But Thomas's “Ninth Amendment claims must be dismissed as well because ‘the Ninth Amendment does not confer substantive rights upon which civil rights claims may be based.'” See Hagan v. Jackson Cnty., No. 1:13-cv-00268-HSO-RHW, 2015 WL 5667198, at *4 (S.D.Miss. Sept. 25, 2015) (quoting Johnson v. Tex. Bd. of Crim. Justice, 281 Fed.Appx. 319, 320 (5th Cir. 2008)) (alteration omitted); see also Collins v. Fisher, No. 5:08-cv-00203-DCB-JMR, 2010 WL 4102954, at *7 (S.D.Miss. Oct. 18, 2010) (“Collins's claim premised on the Ninth Amendment must fail because that Amendment does not specify any substantive constitutional rights and therefore cannot form the basis for a § 1983 claim.”). Because the Ninth Amendment does not create a right of action under § 1983, the undersigned recommends that these claims be dismissed with prejudice.
IV. RECOMMENDATION
The undersigned recommends that the Motion [20] to Dismiss filed by Defendants Dt. Lt. Rachel Jewell, Dt. Sgt. Steven Lee Saucier, Dt. E.J. Taylor, Dt. Ian Larsen, Dt. James Sancher, and Sgt. Dave Wilder be granted. Plaintiff Oscar Thomas's Fourth, Fifth, and Ninth Amendment claims should be dismissed with prejudice, his Sixth and Eighth Amendment claims should be dismissed without prejudice, and this case should be closed.
V. NOTICE OF RIGHT TO APPEAL/OBJECT
Within fourteen days of being served with a copy of this Report and Recommendation, any party may serve and file written objections with the Clerk of Court. An objecting party must specifically identify the findings, conclusions, and recommendations to which he objects. Within seven days of service of the objections, the opposing party must either serve and file a response or notify the District Judge that he does not intend to respond to the objections. L.U.CIV. R. 72(a)(3).
The District Judge shall make a de novo determination of those portions of the Report and Recommendation to which objection is made. The District Judge may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. The District Judge may also receive further evidence or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).
The District Judge need not consider frivolous, conclusive, or general objections. A party who fails to file written objections to the proposed findings, conclusions, and recommendations of the Magistrate Judge shall be barred, except upon grounds of plain error, from attacking on appeal any proposed factual finding or legal conclusion adopted by the Court to which he did not object. See Wallace v. Miss., 43 F.4th 482, 494-95 (5th Cir. 2022) (collecting cases).