Smith v. C.B.M. Catering Co., 080520 LAEDC, C. A. 20-208

Docket NºCivil Action 20-208
Opinion JudgeKAREN WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE
Party NameDARRELL M. SMITH v. C.B.M. CATERING COMPANY, ET AL.
Case DateAugust 05, 2020
CourtUnited States District Courts, 5th Circuit, Eastern District of Louisiana

DARRELL M. SMITH

v.

C.B.M. CATERING COMPANY, ET AL.

Civil Action No. 20-208

United States District Court, E.D. Louisiana

August 5, 2020

SECTION: “A” (4)

REPORT AND RECOMMENDATION

KAREN WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE

Before the Court is a Rule 12 Motions (R. Doc. 12) filed by Defendant C. B. M. Catering Company (“C.B.M.”) and Ms. Tee seeking dismissal of Plaintiff's claims against them pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). The motion is unopposed.

The motion and underlying matter were referred to a United States Magistrate Judge to conduct a hearing, including an evidentiary hearing, if necessary, and to submit proposed findings and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), § 1915, and § 1915A, and as applicable, 42 U.S.C. § 1997e(c)(1) and (2). Upon review of the record, the Court has determined that this matter can be disposed of without an evidentiary hearing.

I. Factual Background

On March 11, 2019, Plaintiff Darrell M. Smith, in jail on a parole violation, filed his pro se and in forma pauperis complaint under 42 U.S.C. § 1983 against the defendants after suffering injury while working in the kitchen in Orleans Parish Prison. R. Doc. 3. Smith alleges that the time of his injury he was employed by C.B.M. Six days after he fell, he submitted a sick call request because he was in pain. He alleges that, on March 29, 2019, he was removed from he kitchen and saw the doctor on April 2, 2019 and was given a pain pill. He later was seen by the doctor on April 15, 2019. He seeks compensation from the Defendants for his pain and suffering. Smith filed this action against the C.B.M. Catering Company; Ms. Tee, the manager of the C.B.M. who supervises the inmates; the Orleans Parish Prison; and Sheriff Marlin Gusman.

II. Spears Hearing

On April 17, 2020, the Court held a Spears hearing. Smith, after being sworn in, testified that, on the day of the incident, he was assigned to the kitchen as a kitchen floor runner and helper for C.B.M., a catering company that had a contract with the sheriff. Smith testified that he was employed with C.B.M and that his job required him to take food out of a pot, place it in a pan, and place the food in a hot box to keep it warm. He testified that, in the course of doing his job, he noticed something coming from the hot box. He testified that when he was returning from placing something from another kettle that he slipped and injured his neck, back, and head.

Smith testified that Deputy Grissom and Ms. Tee were both near him when he fell. He stated that Ms. Tee witnessed the water coming from the other kettle, picked him up, and placed him in a chair. She then completed an incident report and sent him to the medical unit. Smith recalled that he was provided Ibuprofen, which he continues to take for pain. He complained that his head still periodically hurts. He complained that he suffered with back pain for three months.

Smith confirmed that he named Ms. Tee as a defendant solely because was the supervisor in “charge of the company”. He also sued C.B.M. Catering because it was the company that he worked for and who responsible for the catering services at the jail. Smith seeks compensation for his pain and suffering.

III. Standard of Review

A. Review for Frivolousness

Pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A and 42 U.S.C. § 1997e(c), the Court is required to sua sponte dismiss cases filed by prisoners proceeding in forma pauperis upon a determination that they are frivolous. The Court has broad discretion in determining the frivolous nature of the complaint. See Cay v. Estelle, 789 F.2d 318, 325 (5th Cir. 1986), modified on other grounds, Booker v. Koonce, 2 F.3d 114 (5th Cir. 1993). However, the Court may not sua sponte dismiss an action merely because of questionable legal theories or unlikely factual allegations in the complaint.

Under this statute, a claim is frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998). “A [claim] lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist.” Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999) (quoting Davis v. Scott, 157 F.3d 882, 889 (5th Cir. 1998)). It lacks an arguable factual basis only if the facts alleged are “clearly baseless, ” a category encompassing fanciful, fantastic, and delusional allegations. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (citing Neitzke, 490 U.S. at 327-28). Thus, the Court must determine whether plaintiff's claims are based on an indisputably meritless legal theory or clearly baseless factual allegations. Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994); Jackson v. Vannoy, 49 F.3d 175, 176-77 (5th Cir. 1995); Moore v. Mabus, 976 F.2d 268, 269 (5th Cir. 1992).

B. Rule 12(b)(1) and 12(b)6)

Under Rule 12(b)(6), the Court may dismiss a complaint if it lacks jurisdiction over the subject matter or for failure to state a claim upon which any relief may be granted. See Fed.R.Civ.P. 12(b)(6). The same standard is applied for a motion to dismiss brought under either Rule 12(b)(1) for lack of jurisdiction or under Rule 12(b)(6) for failure to state a claim for which relief can be granted. Benton v. United States, 960 F.2d 19, 21 (5th Cir. 1992).

“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)). The Court must accept all well-pleaded facts as true, viewing the complaint in the light most favorable to the plaintiff. In re Great Lakes Dredge & Dock Co., 624 F.3d 201, 210 (5th Cir. 2010); Guidry v. Am. Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007).

The Supreme Court, however, has declared that “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (internal citation omitted). Moreover, “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” and “[t]he plaintiff must plead enough facts to state a claim to relief that is plausible on its face.” Guidry v. Am. Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007) (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....

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