Tanner v. East Baton Rouge Parish Sheriff's Office

• Court: District Court, M.D. Louisiana
• Decided: October 19, 2021
• Docket: 3:20-cv-00530
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

JOSEPH WAYNE TANNER CIVIL ACTION

VERSUS NO. 20-530-SDD-SDJ EAST BATON ROUGE SHERIFF’S OFFICE, ET AL.

NOTICE 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. Signed in Baton Rouge, Louisiana, on October 19, 2021.

S

SCOTT D. JOHNSON UNITED STATES MAGISTRATE JUDGE UNITED STATES DISTRICT COURT

VERSUS NO. 20-530-SDD-SDJ EAST BATON ROUGE SHERIFF’S OFFICE, ET AL.

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION The pro se Plaintiff, a person formerly confined at the East Baton Rouge Parish Prison (“EBRPP”), Baton Rouge, Louisiana, filed this proceeding pursuant to 42 U.S.C. § 1983 against defendants, Sid Gautreaux, Lasalle Corrections, Correct Health, and Gary Gillery, complaining that his constitutional rights were violated when he was subjected to a behavioral study without his consent. He seeks monetary and injunctive relief. 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, as amended, Plaintiff alleges the following: Two East Baton Rouge Parish Sheriff’s deputies relayed information about Plaintiff’s social media accounts, charges, and details of a police report over an “open line.” After making a complaint regarding the same, Plaintiff was transferred to Catahoula Correctional Center. While on the transfer bus, the same deputies and other guards discussed that Plaintiff was schizophrenic, a sex offender, and a rat in

the presence of other offenders. These slanderous allegations spread throughout Catahoula Correction Center, and when Plaintiff reported the same, he was involuntarily placed in a behavior study, “A.K.A. (a box).” Due to the study, Plaintiff was stabbed, hit with locks, and otherwise attacked, resulting in numerous serious injuries. While still on the behavior study, Plaintiff was transferred back to the East Baton Rouge Parish Prison, where the slander, hazing, and assaults continued. The two deputies that initially disseminated Plaintiff’s information were allowed to administer the testing. The study continued when Plaintiff was transferred as a DOC inmate to Richland Parish Detention Center, resulting in continued slander and hazing from inmates and guards. Plaintiff never agreed to participate in this behavior study. All the complained of slander, hazing, and assaults were a direct result of the study. A suit against a government official in his official capacity is the equivalent of filing suit against the government agency of which the official is an agent. Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999). Therefore, to determine whether Plaintiff has

stated such a claim, the Court must conduct a municipal liability analysis under Monell v. Dep't of Social Services of the City of New York, 436 U.S. 658 (1978). See Nowell v. Acadian Ambulance Service, 147 F.Supp.2d 495, 501 (W.D. La. 2001) (citing Turner v. Houma Mun. Fire and Police Civil Service Bd., 229 F.3d 478, 483 fn.10 (5th Cir. 2000)). To assert a claim of municipal liability under Section 1983, a plaintiff must adduce sufficient factual matter to satisfy three elements: (1) the existence of an official policy or custom; (2) a policymaker with final policymaking authority; and (3) a violation of constitutional rights whose “moving force” is the policy or custom. Davis v. Tarrant County, Tex., 565 F.3d 214, 227 (5th Cir. 2009). Municipal liability cannot be established by a theory of respondeat

superior. Monell, 436 U.S. at 691. Instead, the plaintiff must point to some official policy or custom that caused their constitutional harm. Id. The Fifth Circuit Court of Appeals has unanimously defined an official policy for Section 1983 purposes as: 1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or

2. A persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority. Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir.1984). Whether an official has been delegated policymaking authority is a question of law for the judge. Gros v. City of Grand Prairie, Tex., 181 F.3d 613, 617 (5th Cir. 1999). In making this determination, a court should consider state and local “positive law,” as well as evidence of municipal “customs and usages.” See id. at 616; see also id. at 616 n.2 (observing that the Supreme Court has rejected the principle of a “de facto” policymaker, but also determining that

continuous refusal of actual policymaker to review decisions of subordinate official would, “at some point,” establish the subordinate official as the policymaking authority via custom or usage). “Actual or constructive knowledge of [a] custom must be attributable to the governing body of the municipality or to an official to whom that body has delegated policy-making authority.” Piotrowski v. City of Houston, 237 F.3d 567, 579 (quoting Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir. 1984) ). Elaborating on these requirements, the Fifth Circuit has stated: Actual knowledge may be shown by such means as discussions at council meetings or receipt of written information. Constructive knowledge may be attributed to the governing body on the ground that it would have known of the violations if it had properly exercised its responsibilities, as, for example, where the violations were so persistent and widespread that they were the subject of prolonged public discussion or of a high degree of publicity. Hicks-Fields v. Harris Cnty., Tex., 860 F.3d 803, 808–09 (5th Cir. 2017) (quoting Bennett v. City of Slidell, 728 F.2d 762, 768 (5th Cir. 1984) ).

Finally, “[t]o succeed [in alleging ‘moving force’ causation], ‘a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.’” Valle v. City of Houston, 613 F.3d 536, 542 (5th Cir. 2010) (quoting Bd. of the County Comm'rs v. Brown, 520 U.S. 397, 404 (1997) ). “That is, ‘the plaintiff must demonstrate that a municipal decision reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision.’ ” Id. (quoting Brown, 520 U.S. at 411). In the instant matter, Plaintiff’s Complaint, as amended, is devoid of any such policy or practice allegations. Additionally, Plaintiff has not alleged that any defendant is a policymaker with final policymaking authority. Plaintiff’s allegations assert a theory of respondeat superior

instead of pointing to an official policy or custom that caused the alleged constitutional violation. Accordingly, Plaintiff’s Complaint fails to state a claim against defendants in their official capacities. With regards to Plaintiff’s claims asserted against the defendants in their individual capacities, 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. Louisiana courts uniformly hold that sheriff's offices or sheriff's departments are not juridical entities. Sipes v. City of Monroe, 2013 WL 1282457 at *3 (W.D. La. Mar. 28, 2013) (collecting cases). Additionally, 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). In order for a prison official to be found liable under § 1983 in their individual capacity, the official must have been personally and directly involved in conduct causing an alleged deprivation of an inmate's constitutional rights or there must be a causal connection between the actions of the official and the constitutional violation sought to be redressed. Lozano v. Smith, 718 F.2d 756, 768 (5th Cir. 1983). Any allegation that the defendant is responsible for the actions of subordinate officers or co-employees under a theory of vicarious responsibility or respondeat superior is alone insufficient to state a claim under § 1983. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009), citing Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). See also Bell v. Livingston, 356 F. App’x. 715, 716–17 (5th Cir. 2009) (recognizing that “[a]

supervisor may not be held liable for a civil rights violation under any theory of respondeat superior or vicarious liability”). Further, in the absence of direct personal participation by a supervisory official in an alleged constitutional violation, an inmate plaintiff must allege that the deprivation of his constitutional rights occurred as a result of a subordinate's implementation of the supervisor's affirmative wrongful policies or as a result of a breach by the supervisor of an affirmative duty specially imposed by state law. Lozano v. Smith, supra, 718 F.2d at 768. Plaintiff has made no such allegations as to any defendant. As such, Plaintiff has failed to state a claim against the defendants in their individual capacities. Even if the Court were to generously assume that Plaintiff has stated a claim against any

of the named defendants, Plaintiff’s claims are subject to dismissal because Plaintiff has failed to exhaust available administrative remedies relative thereto as mandated by 42 U.S.C. § 1997e. Pursuant to this statute, Plaintiff was required to exhaust administrative remedies available to him at the prison prior to commencing a civil action in this Court with respect to prison conditions. This provision is mandatory and applies broadly to “all inmate suits about prison life.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Further, a prisoner must exhaust administrative remedies by complying with applicable prison grievance procedures before filing a suit relative to prison conditions. Johnson v. Johnson, 385 F.3d 503, 517 (5th Cir. 2004). Not only must the prisoner exhaust all available remedies, but such exhaustion must be proper, including compliance with an agency’s deadlines and other critical procedural rules. Woodford v. Ngo, 548 U.S. 81, 90 (2006). One of the principal purposes of the administrative exhaustion requirement is to provide fair notice to prison officials of an inmate’s specific complaints so as to provide “‘time and opportunity to address complaints internally.’” Johnson v. Johnson, supra, 385 F.3d at 516, quoting Porter v. Nussle, supra, 534 U.S. at 525. Further, the degree of

specificity necessary in a prisoner’s grievance should be evaluated in light of this intended purpose. Id. In his Complaint, Plaintiff asserts that he has not exhausted all steps in the grievance procedure because he was placed in lockdown. As such, the Complaint makes clear that Plaintiff failed to exhaust his administrative remedies prior to filing suit as required by 42 U.S.C. § 1997e. Additionally, it appears that Plaintiff’s claims prescribed prior to filing suit. Inasmuch as there is no federal statute of limitations for claims brought pursuant to 42 U.S.C. § 1983, a federal court must borrow the forum state’s general personal injury limitations period for such claims. Owens v. Okure, 488 U.S. 235, 249-50 (1989). In Louisiana, the applicable period of limitations is one year. La. Civ. Code Art. 3492.1 Moreover, under federal law, a cause of

action under 42 U.S.C. § 1983 accrues “when the aggrieved party has either knowledge of the violation or notice of facts which, in the exercise of due diligence, would have led to actual knowledge thereof.” Piotrowski v. City of Houston, 51 F.3d 512, 516 (5th Cir. 1995) (citations and internal quotation marks omitted). A plaintiff need not realize that a legal cause of action exists but must only have knowledge of the facts that support a claim. Id. Under Louisiana law, a party pleading a limitations defense normally has the burden of establishing the elements of that defense. See Savoy v. St. Landry Parish Council, 2009 WL 4571851, *3 (W.D. La. Dec. 1,

1 See La. Civ. Code Art. 3456 2009). However, when the face of the plaintiff’s complaint reflects that more than a year has passed since the events complained of, the burden of proof shifts to the plaintiff to show that the limitations period has been interrupted or tolled. Id. In the instant case, Plaintiff complains of incidents occurring as early as January 23, 2019, by which date Plaintiff was possessed of sufficient information to place him on notice of

the existence of his cause of action. Accordingly, Plaintiff’s claims accrued on that date, and he had one year within which to file a complaint in this Court. Ordinarily, therefore, any claim that Plaintiff may have had against the defendants arising out of the incident complained of would be seen to have prescribed no later than January 23, 2020, the one-year anniversary of the incident. Further, inasmuch as Plaintiff did not file his federal Complaint until, at the earliest, April 28, 2020, the date that he apparently signed it, it appears from the face of the Complaint that his claims are time-barred. To the extent that 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 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, for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. §§ 1915(e) and 1915A.2 Signed in Baton Rouge, Louisiana, on October 19, 2021.

SCOTT D. JOHNSON UNITED STATES MAGISTRATE JUDGE

2 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.”