The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JASON JOSEPH RODRIGUE CIVIL ACTION
VERSUS NO. 20-1811
RICHARD PETIE NEAL, et al. SECTION: “G”(5)
ORDER AND REASONS
Before the Court is a Motion to Amend filed by Plaintiff Jason Joseph Rodrigue
(“Plaintiff”).1 Plaintiff, a Louisiana state prisoner incarcerated at the Terrebonne Parish Criminal
Justice Complex (“TPCJC”), filed this civil rights action pursuant to 42 U.S.C. § 1983 alleging
inadequate response by TPCJC personnel to the COVID-19 pandemic and inadequate treatment
for inmates like himself who were affected.2 Pursuant to Local Rule 73.2, the case was referred to
a Magistrate Judge to prepare a Report and Recommendation. The Magistrate Judge recommended
that Plaintiff’s claims be dismissed without prejudice for failure to exhaust available prison
administrative remedy procedures but with prejudice for the purpose of proceeding in forma
pauperis pursuant to 28 U.S.C. §1915.3 Plaintiff did not file an objection to the Report and
Recommendation. Instead, Plaintiff filed the instant Motion to Amend, wherein Plaintiff seeks
leave of Court to file an Amended Complaint raising new claims regarding the adequacy of the
medical care he received at TPCJC following a car accident.4 Considering the Complaint, the
1 Rec. Doc. 17.
2 Rec. Doc. 1 at 4.
3 Rec. Doc. 16.
4 Rec. Doc. 17.
Motion to Amend, the Report and Recommendation, the record, and the applicable law, the Court
grants the Motion to Amend, adopts the Report and Recommendation, and dismisses Plaintiff’s
claims regarding COVID-19 without prejudice for failure to exhaust available prison
administrative remedy procedures.
I. Background
On June 25, 2020, Plaintiff filed a complaint in this Court naming as defendants Dr.
Richard Petie Neal, the former Warden of TPCJC Stephen Bergeron, the former Sheriff of
Terrebonne Parish Jerry Larpenter, and Correctional Officer T. Schwaush (collectively,
“Defendants”).5 Plaintiff alleges that he tested positive for COVID-19 in April 2020 after coming
into contact with a correctional officer who was infected with the virus.6 Plaintiff complains of the
efficacy of the measures in place at TPCJC to address the pandemic.7 Plaintiff asserts that TPCJC
provided inadequate treatment to inmates like himself who were affected.8 Plaintiff seeks his
release on a reconnaissance bond, $500,000 in compensatory damages for pain and suffering, and
the removal of the Defendants from their jobs.9
On September 2, 2020, Dr. Neal filed a motion to dismiss.10 Thereafter, the Magistrate
Judge issued a Report and Recommendation, recommending that the case be dismissed on
alternative grounds and that the motion to dismiss be denied as moot.11 Specifically, the Magistrate
5 Rec. Doc. 1.
6 Id. at 4.
7 Id.
8 Id.
9 Id.
10 Rec. Doc. 15.
11 Rec. Doc. 16 at 1.
Judge recommended that the case be dismissed for Plaintiff’s failure to exhaust the administrative
process available to him at TPCJC.12 In response to a question on the form Complaint of whether
Plaintiff had “… exhausted or completed all steps in the procedure, including appeals” Plaintiff
answered “No,” explaining that his “grievances were dismissed.”13 Because Plaintiff made clear
on the face of the Complaint that he did not fully exhaust the remedies that were available to him
through the TPCJC prisoner grievance procedure prior to filing suit, the Magistrate Judge
recommended that the Complaint be dismissed without prejudice, but recommended dismissal
with prejudice for the purpose of proceeding in forma pauperis pursuant to 28 U.S.C. § 1915.14
Plaintiff did not file an objection to the Report and Recommendation. Instead, Plaintiff
filed a Motion to Amend the Complaint.15 In the Motion, Plaintiff seeks leave of Court to brings a
new claim for inadequate medical care, stating that he was involved in a car accident and is not
receiving proper treatment at TPCJC.16 Plaintiff seeks to add the current Sheriff of Terrebonne
Parish Tim Soignet and the current Warden of TPCJC Ronda Ledet as defendants.17 Defendants
did not file any opposition to the Motion to Amend.
II. Standard of Review
A. Review of the Magistrate Judge’s Report and Recommendation
When designated by a district court to do so, a United States Magistrate Judge may consider
prisoner petitions challenging the conditions of confinement and recommend his/her disposition
12 Id. at 3.
13 Id.
14 Id. at 4.
15 Rec. Doc. 17.
16 Id. at 4.
17 Id. at 3.
to the district court judge in accordance with the Magistrate Judge’s findings of fact and
determinations of law.18 A district judge “may accept, reject or modify the recommended
disposition” of a Magistrate Judge on a dispositive matter.19 The district judge must “determine de
novo any part of the [Report and Recommendation] that has been properly objected to.”20
However, a district court’s review is limited to plain error of parts of the report not properly
objected to.21
B. Standard for Frivolousness
A district court has broad discretion in determining the frivolous nature of a prisoner’s
complaint.22 A complaint is frivolous if it lacks an arguable basis in law or fact.23 A claim has no
arguable basis in law if “it is based on indisputable meritless legal theory.”24 It lacks a basis in
facts if “the facts alleged are clearly baseless.”25 If a court finds a prisoner’s claims are frivolous,
the court must dismiss the claims sua sponte.26
III. Law and Analysis
The Magistrate Judge recommended that Plaintiff’s claims regarding the inadequacy of the
treatment provided to him after he tested positive for COVID-19 be dismissed without prejudice
18 28 U.S.C. §636(b)(1)(B).
19 Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. §636(b)(1).
20 Fed. R. Civ. P. 72(b)(3).
21 See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996).
22 See Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998) (citations omitted).
23 Id.
24 Id.
25 Id.
26 See 28 U.S.C. § 1915A; 42 U.S.C. §1997e(c).
for failure to exhaust available prison administrative remedy procedures but with prejudice for the
purpose of proceeding in forma pauperis pursuant to 28 U.S.C. §1915.27 Plaintiff does not object
to the Report and Recommendation.
Pursuant to 42 U.S.C. §1997e(a), “[n]o action shall be brought with respect to prison
conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are exhausted.” The exhaustion
requirement “applies to all inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege excessive force or some other
wrong.”28 The exhaustion requirement applies to prisoner claims alleging denial of medical care
or deliberate indifference to serious medical needs.29 “Pre-filing exhaustion is mandatory, and the
case must be dismissed if available administrative remedies were not exhausted.”30
Generally, the exhaustion requirement must be asserted by the defendant as an affirmative
defense.31 However, “a court can dismiss a case prior to service on defendants for failure to state
a claim, predicated on failure to exhaust, if the complaint itself makes clear that the prisoner failed
to exhaust.”32 If a prisoner fails to exhaust the prisoner grievance procedure prior to filing suit, the
complaint should be dismissed without prejudice, but the dismissal may be considered with
prejudice for the purpose of proceeding in forma pauperis pursuant to 28 U.S.C. § 1915.33
27 Rec. Doc. 16.
28 Clifford v. Gibbs, 298 F.3d 328, 330 (5th Cir. 2002) (quoting Porter v. Nussle, 534 U.S. 516 (2002)).
29 Gonzalez v. Crawford, 419 F. App’x 522 (5th Cir. 2011).
30 Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012).
31 Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007).
32 Id.
33 Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir. 1998), cert. denied, 526 U.S. 1133 (1999).
The Complaint makes clear that Plaintiff failed to exhaust his administrative remedies with
respect to his claims regarding the adequacy of the medical care he received after he tested positive
for COVID-19 and the efficacy of the measures taken by TPCJC staff in response to the
pandemic.34 Therefore, these claims must be dismissed without prejudice for failure to exhaust
administrative remedies. Because the claims regarding Plaintiff’s treatment for COVID-19 must
be dismissed for failure to exhaust administrative remedies, the motion to dismiss those claims
filed by Dr. Richard Petie Neal is moot.35
Separately, Plaintiff seeks leave of Court to amend the Complaint to add claims regarding
the adequacy of his treatment following a car accident. Unlike the original Complaint, the proposed
Amended Complaint is silent regarding whether Plaintiff exhausted his administrative remedies
with respect to these claims. Therefore, the Court cannot raise this issue sua sponte.36 Defendants
have not filed an opposition to the Motion to Amend. Moreover, Federal Rule of Civil Procedure
15(a)(2) provides that a court “should freely give leave when justice so requires.”37 Accordingly,
the Court grants the Motion to Amend.
As a final matter, the Magistrate Judge recommended that the claims regarding Plaintiff’s
treatment for COVID-19 be dismissed without prejudice but that the dismissal be considered with
prejudice for the purpose of proceeding in forma pauperis pursuant to 28 U.S.C. § 1915.38
Recently, the Supreme Court clarified that a dismissal without prejudice counts as a “strike” under
the Prison Litigation Reform Act’s (“PLRA”) three-strikes rule, which prevents a prisoner from
34 Rec. Doc. 1 at 3.
35 Rec. Doc. 15.
36 Carbe, 492 F.3d at 328.
37 Fed. R. Civ. Pro. R. 15(a).
38 Rec. Doc. 16 at 4 (citing Underwood, 151 F.3d at 296).
bringing suit in forma pauperis if he has had three or more prior suits “dismissed on the grounds
that [they were] frivolous, malicious, or fail[ed] to state a claim upon which relief may be
granted.”39 However, when a court grants a plaintiff leave to amend the complaint, the plaintiff is
not charged with a “strike” under the PLRA.40 Because the Court has granted Plaintiff leave to
amend the Complaint, the dismissal of the claims regarding Plaintiff’s treatment for COVID-19
does not count as a “strike” under the PLRA.
IV. Conclusion
The Complaint makes clear that Plaintiff failed to exhaust his administrative remedies with
respect to his claims regarding the adequate medical care he received after he tested positive for
COVID-19 and the efficacy of the measures taken by TPCJC staff in response to the pandemic.
Therefore, these claims must be dismissed without prejudice for failure to exhaust administrative
remedies. Because the claims regarding Plaintiff’s treatment for COVID-19 must be dismissed for
failure to exhaust administrative remedies, the motion to dismiss those claims filed by Dr. Richard
Petie Neal is moot. However, the Court will allow Plaintiff to amend the complaint to bring claims
regarding the adequacy of his treatment following a car accident. Pursuant to Local Rule 73.2, the
Court refers the Amended Complaint to the Magistrate Judge to prepare an additional Report and
Recommendation. Accordingly,
IT IS HEREBY ORDERED that the Court ADOPTS the Report and Recommendation.
Plaintiff’s claims regarding the adequacy of the medical care he received after he tested positive
for COVID-19 and the efficacy of the measures taken by TPCJC staff in response to the pandemic
are dismissed without prejudice for failure to exhaust administrative remedies.
39 Lomax v. Ortiz-Marquez, 140 S. Ct. 1721 (2020).
40 Id. at 1725, n.4.
IT IS FURTHER ORDERED that Defendant Richard Petie Neal’s Motion to Dismiss"!
is DENIED AS MOOT.
IT IS FURTHER ORDERED that Plaintiff's Motion to Amend*” is GRANTED. The
Amended Complaint shall be filed into the record and is REFERRED to the Magistrate Judge to
prepare an additional Report and Recommendation.
NEW ORLEANS, LOUISIANA, this 2nd _ day of August, 2021.
NANNETTE J -)eb BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
4! Rec. Doc. 15.
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