UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA MONROE DIVISION
EARNEST T. ARY CIVIL ACTION NO. 24-0633
SECTION P VS. JUDGE TERRY A. DOUGHTY
WARDEN NOLEN BASS, ET AL. MAG. JUDGE KAYLA D. MCCLUSKY
REPORT AND RECOMMENDATION
Plaintiff Earnest T. Ary, a prisoner at Tensas Parish Detention Center (“TPDC”) proceeding pro se and in forma pauperis, filed this proceeding on approximately May 13, 2024, under 42 U.S.C. § 1983. He names the following defendants: Warden Nolen Bass, Assistant Warden A. Johnson, and the Louisiana Department of Public Safety and Corrections.1 For reasons that follow, the Court should dismiss Plaintiff’s claims. Background
Plaintiff claims that at TPDC, he was forced to defecate in clear bags at least twelve times because the water at the facility was off. [doc. # 1, p. 3]. He had to place his clear bag in a larger bag located in a shower, which remained there for days. Id. He suggests that he had to shower near the larger bag. Id. He also had to urinate in a shower because D-Dorm lacked a urinal. Id. He alleges that the feces odor in the 80-man dormitory is extremely bad; he is inhaling feces and urine odors all day, causing him headaches and a running nose. Id. at 4. He was not provided cleaning supplies. Id.
1 This matter has been referred to the undersigned for review, report, and recommendation under 28 U.S.C. § 636, and the standing orders of the Court. Plaintiff claims that he was deprived of “water for days at a time.” [doc. # 1, p. 3]. He suggests he received two bottles of water at “chow time.” Id. at 4. Plaintiff seeks $500,000.00 in compensation. [doc. # 1, p. 5]. Law and Analysis
1. Preliminary Screening
Plaintiff is a prisoner who has been permitted to proceed in forma pauperis. As a prisoner seeking redress from an officer or employee of a governmental entity, his complaint is subject to preliminary screening pursuant to 28 U.S.C. § 1915A.2 See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998) (per curiam). Because he is proceeding in forma pauperis, his Complaint is also subject to screening under § 1915(e)(2). Both § 1915(e)(2)(B) and § 1915A(b) provide for sua sponte dismissal of the complaint, or any portion thereof, if the Court finds it is frivolous or malicious, if it fails to state a claim on which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief. A complaint is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Id. at 327. Courts are also afforded the unusual power to pierce the veil of the factual allegations and dismiss those claims whose factual contentions are clearly baseless. Id. A complaint fails to state a claim on which relief may be granted when it fails to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
2 Under 28 U.S.C. § 1915(h), “‘prisoner’ means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.” 550 U.S. 544, 570 (2007); accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible when it contains sufficient factual content for the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570). Plausibility does not equate to possibility or probability; it lies
somewhere in between. Id. Plausibility simply calls for enough factual allegations to raise a reasonable expectation that discovery will reveal evidence to support the elements of the claim. Twombly, 550 U.S. at 556. Assessing whether a complaint states a plausible claim for relief is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, supra. A well-pled complaint may proceed even if it strikes the court that actual proof of the asserted facts is improbable and that recovery is unlikely. Twombly, supra. In making this determination, the court must assume that all of the plaintiff’s factual allegations are true. Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998). However, the same presumption does not extend to legal conclusions. Iqbal, supra. A pleading comprised of
“labels and conclusions” or “a formulaic recitation of the elements of a cause of action” does not satisfy Rule 8. Id. A complaint fails to state a claim where its factual allegations do not “raise a right to relief above the speculative level.” Montoya v. FedEx Ground Package Sys., Inc., 614 F.3d 145, 148 (5th Cir. 2010) (quoting Twombly, 550 U.S. at 555). “[U]nadorned, the-defendant unlawfully-harmed-me accusation[s]” will not suffice. Iqbal, 556 U.S. at 677. “[P]laintiffs must allege facts that support the elements of the cause of action in order to make out a valid claim.” City of Clinton, Ark. v. Pilgrim’s Pride Corp, 632 F.3d 148, 152-53 (5th Cir. 2010). Courts are “not free to speculate that the plaintiff ‘might’ be able to state a claim if given yet another opportunity to add more facts to the complaint.” Macias v. Raul A. (Unknown) Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994). A hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n.4 (5th Cir. 1991). A district court may dismiss a prisoner’s civil rights complaint as frivolous based upon the complaint and exhibits alone. Green v. McKaskle, 788
F.2d 1116, 1120 (5th Cir. 1986). “To state a section 1983 claim, a plaintiff must (1) allege a violation of a right secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law.” Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013) (internal quotation marks omitted). Consistent with the standard above, a “[S]ection 1983 complaint must state specific facts, not simply legal and constitutional conclusions.” Fee v. Herndon, 900 F.2d 804, 807 (5th Cir. 1990). 2. Limitation on Recovery Under 42 U.S.C. § 1997e(e) Under 42 U.S.C.
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA MONROE DIVISION
EARNEST T. ARY CIVIL ACTION NO. 24-0633
SECTION P VS. JUDGE TERRY A. DOUGHTY
WARDEN NOLEN BASS, ET AL. MAG. JUDGE KAYLA D. MCCLUSKY
REPORT AND RECOMMENDATION
Plaintiff Earnest T. Ary, a prisoner at Tensas Parish Detention Center (“TPDC”) proceeding pro se and in forma pauperis, filed this proceeding on approximately May 13, 2024, under 42 U.S.C. § 1983. He names the following defendants: Warden Nolen Bass, Assistant Warden A. Johnson, and the Louisiana Department of Public Safety and Corrections.1 For reasons that follow, the Court should dismiss Plaintiff’s claims. Background
Plaintiff claims that at TPDC, he was forced to defecate in clear bags at least twelve times because the water at the facility was off. [doc. # 1, p. 3]. He had to place his clear bag in a larger bag located in a shower, which remained there for days. Id. He suggests that he had to shower near the larger bag. Id. He also had to urinate in a shower because D-Dorm lacked a urinal. Id. He alleges that the feces odor in the 80-man dormitory is extremely bad; he is inhaling feces and urine odors all day, causing him headaches and a running nose. Id. at 4. He was not provided cleaning supplies. Id.
1 This matter has been referred to the undersigned for review, report, and recommendation under 28 U.S.C. § 636, and the standing orders of the Court. Plaintiff claims that he was deprived of “water for days at a time.” [doc. # 1, p. 3]. He suggests he received two bottles of water at “chow time.” Id. at 4. Plaintiff seeks $500,000.00 in compensation. [doc. # 1, p. 5]. Law and Analysis
1. Preliminary Screening
Plaintiff is a prisoner who has been permitted to proceed in forma pauperis. As a prisoner seeking redress from an officer or employee of a governmental entity, his complaint is subject to preliminary screening pursuant to 28 U.S.C. § 1915A.2 See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998) (per curiam). Because he is proceeding in forma pauperis, his Complaint is also subject to screening under § 1915(e)(2). Both § 1915(e)(2)(B) and § 1915A(b) provide for sua sponte dismissal of the complaint, or any portion thereof, if the Court finds it is frivolous or malicious, if it fails to state a claim on which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief. A complaint is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Id. at 327. Courts are also afforded the unusual power to pierce the veil of the factual allegations and dismiss those claims whose factual contentions are clearly baseless. Id. A complaint fails to state a claim on which relief may be granted when it fails to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
2 Under 28 U.S.C. § 1915(h), “‘prisoner’ means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.” 550 U.S. 544, 570 (2007); accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible when it contains sufficient factual content for the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570). Plausibility does not equate to possibility or probability; it lies
somewhere in between. Id. Plausibility simply calls for enough factual allegations to raise a reasonable expectation that discovery will reveal evidence to support the elements of the claim. Twombly, 550 U.S. at 556. Assessing whether a complaint states a plausible claim for relief is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, supra. A well-pled complaint may proceed even if it strikes the court that actual proof of the asserted facts is improbable and that recovery is unlikely. Twombly, supra. In making this determination, the court must assume that all of the plaintiff’s factual allegations are true. Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998). However, the same presumption does not extend to legal conclusions. Iqbal, supra. A pleading comprised of
“labels and conclusions” or “a formulaic recitation of the elements of a cause of action” does not satisfy Rule 8. Id. A complaint fails to state a claim where its factual allegations do not “raise a right to relief above the speculative level.” Montoya v. FedEx Ground Package Sys., Inc., 614 F.3d 145, 148 (5th Cir. 2010) (quoting Twombly, 550 U.S. at 555). “[U]nadorned, the-defendant unlawfully-harmed-me accusation[s]” will not suffice. Iqbal, 556 U.S. at 677. “[P]laintiffs must allege facts that support the elements of the cause of action in order to make out a valid claim.” City of Clinton, Ark. v. Pilgrim’s Pride Corp, 632 F.3d 148, 152-53 (5th Cir. 2010). Courts are “not free to speculate that the plaintiff ‘might’ be able to state a claim if given yet another opportunity to add more facts to the complaint.” Macias v. Raul A. (Unknown) Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994). A hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n.4 (5th Cir. 1991). A district court may dismiss a prisoner’s civil rights complaint as frivolous based upon the complaint and exhibits alone. Green v. McKaskle, 788
F.2d 1116, 1120 (5th Cir. 1986). “To state a section 1983 claim, a plaintiff must (1) allege a violation of a right secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law.” Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013) (internal quotation marks omitted). Consistent with the standard above, a “[S]ection 1983 complaint must state specific facts, not simply legal and constitutional conclusions.” Fee v. Herndon, 900 F.2d 804, 807 (5th Cir. 1990). 2. Limitation on Recovery Under 42 U.S.C. § 1997e(e) Under 42 U.S.C. § 1997e(e), “No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered
while in custody without a prior showing of physical injury or the commission of a sexual act (as defined in section 2246 of Title 18).” “[I]t is the nature of the relief sought, and not the underlying substantive violation, that controls: Section 1997e(e) applies to all federal civil actions in which a prisoner alleges a constitutional violation, making compensatory damages for mental or emotional injuries non-recoverable, absent physical injury.” Geiger v. Jowers, 404 F.3d 371, 375 (5th Cir. 2005). “The ‘physical injury’ required by § 1997e(e) ‘must be more than de minimus [sic], but need not be significant.’” Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999) (quoting Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997)). Here, Plaintiff “brought” this action when he was incarcerated. [doc. #s 1, p. 2; 1-2]. As to all his claims, he seeks monetary compensation for only mental, emotional, or de minimis injuries he suffered while in custody. He experienced headaches and a “running nose,” but absent more these do not plausibly amount to greater-than-de minimis injuries.3
Plaintiff does not present a prior showing of physical injury or the commission of a sexual act as defined in 18 U.S.C. § 2246. Thus, he may not recover compensation for mental or emotional injuries. In addition, Plaintiff does not allege that he suffered any other injuries or damages compensable by monetary relief. Accordingly, the Court should dismiss Plaintiff’s request for compensatory relief. As Plaintiff does not seek any other cognizable relief for his claims, the Court should dismiss them. Recommendation
For the reasons above, IT IS RECOMMENDED that Plaintiff Earnest T. Ary’s claims be DISMISSED WITH PREJUDICE for failing to state claims on which relief may be granted. Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Rule 72(b), parties aggrieved by this recommendation have fourteen (14) days from service of this Report and Recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party’s objections within fourteen (14) days after being served with a copy of any objections or
3 See Kossie v. Crain, 354 F. App'x 82, 83 (5th Cir. 2009) (finding headaches de minimis); Amir- Sharif v. Dallas Cty., 2006 WL 2860552, at *7 (N.D. Tex. Oct. 5, 2006) (“Sleep deprivation, headaches and weight loss amount to de minimis physical injuries without more.”); Herron v. Patrolman No. 1, 111 F. App’x 710, 713 (5th Cir. 2004) (holding that a “temporary increase of pain . . . is at most a de minimis injury that will not support a claim of mental or emotional suffering.”); Johnson v. Desoto Cnty. Sheriff Dep't, 2013 WL 3944284, at *2 (N.D. Miss. July 31, 2013) (“[I]t does not appear that the plaintiff suffered any injury beyond a temporary stuffy nose, which is insufficient to support his claim for damages.”); Hoever v. Belleis, 703 F. App'x 908, 912 (11th Cir. 2017) (“Hoever was not entitled to any damages on the basis of his sinus injury.”). response to the district judge at the time of filing. Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in this Report and Recommendation within fourteen (14) days following the date of its service, or within the time frame authorized by Fed. R. Civ. P. 6(b), shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the District Court, except upon grounds of plain error. See Douglass v. United Services Automobile Association, 79 F.3d 1415 (Sth Cir. 1996). In Chambers, Monroe, Louisiana, this 26" day of August, 2024.
Kayla Dye Mc@lugky United States Magistrate Judge