Green v. Guidry

• Decision Date: 04 October 2019
• Docket Number: CIVIL ACTION NO. 19-12052 SECTION: "I"(1)
• Parties: JAVAL ANTHONY GREEN v. DEPUTY SHERIFF GUIDRY, ET AL.
• Court: U.S. District Court — Eastern District of Louisiana

JAVAL ANTHONY GREEN v. DEPUTY SHERIFF GUIDRY, ET AL.

CIVIL ACTION NO. 19-12052 SECTION: "I"(1)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

October 4, 2019

REPORT AND RECOMMENDATION

Plaintiff, Javal Anthony Green, a Louisiana state prisoner, filed this pro se federal civil action pursuant to 42 U.S.C. § 1983. He sued Deputy Sheriff Guidry, Deputy Sheriff Edward Lawson, and Officer John Verret,¹ alleging that the defendants violated his rights in numerous respects.

To clarify plaintiff's claims, the Court held a Spears hearing on September 27, 2019. See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). "[T]he Spears procedure affords the plaintiff an opportunity to verbalize his complaints, in a manner of communication more comfortable to many prisoners." Davis v. Scott, 157 F.3d 1003, 1005-06 (5th Cir. 1998). The United States Fifth Circuit Court of Appeals has observed that a Spears hearing is in the nature of a Fed. R. Civ. P. 12(e) motion for more definite statement. Eason v. Holt, 73 F.3d 600, 602 (5th Cir. 1996). Spears hearing testimony becomes a part of the total filing by the pro se applicant. Id.

I. Screening Standards

Plaintiff filed this federal civil action in forma pauperis.² Concerning such actions, federal law provides:

Notwithstanding any filing fee, or any portion thereof, that may have been paid, 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).

In addition, because plaintiff is incarcerated, he is also subject to the screening provisions of 28 U.S.C. § 1915A. That statute mandates that federal courts "review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a).³ Regarding such lawsuits, federal law similarly requires:

On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint -

(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A(b).

A complaint is frivolous "if it lacks an arguable basis in law or fact." Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994). In determining whether a claim is frivolous, the Court has "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 claimswhose factual contentions are clearly baseless." Neitzke v. Williams, 490 U.S. 319, 327 (1989); Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994).

A complaint fails to state a claim on which relief may be granted when the plaintiff does not "plead enough facts to state a claim to relief that is plausible on its face. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (citation, footnote, and quotation marks omitted). The United States Supreme Court has explained:

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. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations and quotation marks omitted).

II. Plaintiff's Claims

In his complaint, plaintiff asserts a variety of claims and seeks relief pursuant to 42 U.S.C. § 1983. In pertinent part, that statute provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....

42 U.S.C. § 1983.

For the following reasons, it is recommended that all of plaintiff's claims be dismissed pursuant to the Court's screening authority.

A. Murder Threat

Plaintiff claims that, during his arrest, Officer John Verret and another unidentified officer threatened to murder him, make it look like an overdose, and dump his body in Dulac, Louisiana. However, that allegation, even if true, is not actionable under § 1983, because "[v]erbal threats do not rise to the level of a constitutional violation." Westbrook v. Treon, 78 F. App'x 970, 972 (5th Cir. 2003); accord Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002) ("[C]laims of verbal abuse are not actionable under § 1983 ...."); Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993) ("Mere allegations of verbal abuse do not present actionable claims under § 1983.").

B. Excessive Force

Plaintiff next claims that, after a prior arrest, he was placed in a restraint chair and choked by Deputy Sheriff Guidry, Deputy Sheriff Lawson, and other officers. At the Spears hearing, plaintiff testified that this incident occurred on August 29, 2017. This claim must therefore be dismissed because it was not filed within the applicable statute of limitations.

"Where it is clear from the face of a complaint filed in forma pauperis that the claims asserted are barred by the applicable statute of limitations, those claims are properly dismissed as frivolous. Courts may raise the defense of limitations sua sponte in a § 1915 action." Abston v. Federal Bureau of Prisons, 689 F. App'x 304, 304 (5th Cir. 2017) (citation, quotation marks, and brackets omitted).⁴

Regarding the statute of limitations, the United States Fifth Circuit Court of Appeals has held:

The statute of limitations for Section 1983 claims is "the forum state's personal-injury limitations period," which in Louisiana is one year. Jacobsen v. Osborne, 133 F.3d 315, 319 (5th Cir. 1998). "In applying the forum state's statute of limitations, the federal court should also give effect to any applicable tolling provisions." Gartrell v. Gaylor, 981 F.2d 254, 257 (5th Cir. 1993). However, federal law governs when a Section 1983 claim accrues. Jacobsen, 133 F.3d at 319. This court has stated that "[u]nder federal law, a cause of action accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action." Gartrell, 981 F.2d at 257. As a result, the limitations period begins "when the plaintiff is in possession of the 'critical facts that he has been hurt and who has inflicted the injury.'" Id. (quoting Lavellee v. Listi, 611 F.2d 1129, 1130 (5th Cir. 1980)).

Smith v. Regional Transit Authority, 827 F.3d 412, 421 (5th Cir. 2016). Therefore, "[a]n excessive force claim generally accrues on the date when the force is inflicted." Morrill v. City of Denton, 693 F. App'x 304, 306 (5th Cir. 2017); accord Armstrong v. Serpas, 670 F. App'x 851, 852 (5th Cir. 2016). Accordingly, plaintiff's claim accrued on the date the excessive force was used against him, i.e. August 29, 2017, and the statute of limitations then required that he file suit with respect to that claim within one year of that date. However, plaintiff did not file this federal complaint until August 1, 2019.⁵

Because plaintiff's excessive force claim accrued in 2017 but he did not file his complaint until 2019, the claim was clearly prescribed unless the one-year statute of limitations was tolled. As previously noted, the Court looks to the forum state's law to determine whether the limitationsperiod was tolled. Smith, 827 F.3d at 421. Regarding Louisiana's laws on tolling, the United States Fifth Circuit Court of Appeals has explained:

Under Louisiana law, the doctrine of contra non valentem suspends the running of prescription in "exceptional circumstances." Lapuyade v. Rawbar, Inc., 190 So. 3d 1214, 1220 (La. Ct. App. 2016). Louisiana courts apply the doctrine of contra non valentem in four situations:

(1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff's action;

(2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting;

(3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; or

(4) where the cause of action is neither known nor reasonably known by the plaintiff even though plaintiff's ignorance is not induced by the defendant.

Marin v. Exxon Mobil Corp., 48 So.3d 234, 245 (La. 2010).

LaShip, L.L.C. v. Hayward Baker, Inc., 680 F. App'x 317, 323 (5th Cir. 2017).

Plaintiff has identified no reason that the doctrine of contra non valentem would apply in this case. Therefore, the undersigned recommends that the excessive force claim be dismissed as frivolous because it was prescribed at the time the complaint was filed.

C. Strip Searches

Plaintiff also complains that he was strip searched on two occasions by a homosexual male guard. When he filed a grievance concerning the incidents, a jail officer responded that jail policy provides that inmates are searched by an officer of the same gender - regardless of sexual...