Imbraguglio v. LeBlanc

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

DOMINICK IMBRAGUGLIO #522412

CIVIL ACTION

VERSUS

NO. 22-18-JWD-EWD

JAMES M. LEBLANC, IN HIS OFFICIAL

CAPACITY AS SECRETARY OF THE

DEPARTMENT OF PUBLIC SAFETY

AND CORRECTIONS, ET AL.

RULING AND ORDER

This matter comes before the Court on the Motion to Dismiss (Doc. 56) filed by James M.

LeBlanc, Secretary of the Department of Public Safety and Corrections (“DPSC”); Seth Smith,

Warden of Elayn Hunt Correctional Center (“EHCC”) and Chief of Operations of DPSC; Jerry

Goodwin, Warden of David Wade Correctional Center (“DWCC”); Darryl Vannoy, Warden of

Louisiana State Penitentiary (“LSP”); Timothy Hooper, Warden of EHCC and LSP; Paul Smith,

Assistant Warden of LSP; Chadwick Darbonne, Assistant Warden of LSP; Vincent Knight,

corrections officer at LSP; Todd Moreau, corrections officer at LSP; Herman Holmes, corrections

officer at LSP; Tailor Graffia, agent at LSP; Sheri Barton, agent at LSP, and Lindsey Metz, agent

at LSP, all moving in their individual and official capacities, and all referred to collectively as

“Defendants.” Plaintiff Dominick Imbraguglio (“Plaintiff”) opposes the motion, (Doc. 60), and

Defendants have filed a reply, (Doc. 61). Oral argument is not necessary. The Court has carefully

considered the law, the facts in the record, and the arguments and submissions of the parties and

is prepared to rule. For the following reasons, Defendants’ motion is granted.

I. RELEVANT FACTUAL BACKGROUND

Plaintiff is an inmate housed in LSP. (Compl., Preamble, Doc. 1 at 3.) On or about June

14, 2014, Plaintiff was housed at EHCC, and there he was charged with simple escape. (Id. ¶ 3.)

Consequently, he was “reclassified to extended lockdown custody and placed upon closed-cell

restriction (‘CCR’)[.]” (Id.)

Plaintiff claims that, as a result of this infraction, he was housed in solitary confinement at

three different DPSC facilities (EHCC, DWCC, and LSP), from June 14, 2014, to July 2, 2021,

“without exception and without any solitary confinement break” in violation of the Louisiana

Administrative Code tit. 22, pt. I, § 341, which lists the penalty for such an infraction as 30 days

confinement to dormitory, room, or cell and/or up to 10 days of disciplinary detention, for each

violation. (Id. ¶¶ 4, 6, 7, 8.)

Indeed, Plaintiff “has been held in solitary confinement for a total of 2,708 days over a

period of about seven and a half years, or 2,767 days from June 14, 2014, until the time of this

filing” of the Complaint. (Id. ¶ 5.) He has only been out of solitary for 59 days on two separate

occasions: on July 2, 2021, for 47 days, and September 20, 2021, for 17 days. (Id.)

Plaintiff went to the Lockdown Review Board (the “LRB”) every 90 days during his time

in solitary confinement at each facility. (Id. ¶ 10.) After each hearing the LRB decided that

Plaintiff would remain in solitary confinement because of “the original nature of his lockdown,

Simple Escape,” even though this decision violates the above cap on confinement from the

Administrative Code. (Id.)

Further, on or about January 27, 2021, LSP started to use “an unauthorized schedule of

punishment for inmate infractions” named the “Disciplinary Sanctions Matrix,” (“Matrix”). (Id. ¶

11.) Plaintiff claims that the “schedule of discipline is not legislatively authorized” for the DPSC

and that it “institutes sanctions that are more than nine times the legislative rules.” (Id.)

On at least four occasions detailed in the Complaint, Plaintiff was sentenced pursuant to

the Matrix to time in solitary confinement well beyond what was allowed by the Administrative

Code. (See id. ¶¶ 12–15.) Plaintiff appealed each time, but those appeals were denied by LSP

officials Warden Timothy Hooper, Deputy Warden Joseph Lamartiniere, and Assistant Warden

Tim Delaney. (Id. ¶ 16.)

Plaintiff claims these sanctions, and his consistent placement in solitary, violates not just

the Administrative Code but also “Ralph v. Dees, C.A.71-94 USDC (Md. LA), which addressed

the entire disciplinary process, including isolation/detention, specifically stating that ‘No inmate

shall be confined in isolation for a period exceeding ten consecutive days, nor shall [any] inmate

[be] confined in isolation for more than 20 days of each calendar month.’ ” (Compl. ¶ 17, Doc.1)

All of this is also “in accordance with federal court issued orders in compliance with the due

process guarantees specified in Wolff v. McDonnell[,] 94 S. Ct[.] 2963 (1974).” (Compl. ¶ 17, Doc.

1.)

Additionally, starting around January 27, 2021, and continuing, Plaintiff was only allowed

to leave his 6’ x 9’ cell in solitary confinement for fifteen minutes. (Id. ¶ 18.) Plaintiff could only

do so to shower. (Id.) Further, after the January and March disciplinary hearings, Plaintiff was

“subjected to strip searches and cell searches every twelve hours[.]” (Id. ¶ 19.) Defendants did so

despite Woodfox v. Phelps No. 209,535 ‘H’ 19th JDC (1978))” and despite the Administrative

Code’s prohibition on using such actions as punishment. (Compl. ¶ 19, Doc. 1.) There is no

penological interest for these searches, as Plaintiff is only let out of his cell for fifteen minutes a

day and as he is fully restrained, escorted, and observed during that time. (Id. ¶ 20.)

Plaintiff alludes to a due process violation for being unable to “appeal the loss of visitation

privileges, or the implementation of strip searches and cell searches every twelve hours[,]” again,

in violation of the Administrative Code. (Id. ¶ 21.) Further:

[T]he circumstances and conditions under which Plaintiff

Imbraguglio were held in solitary confinement include but are not

limited to: only fifteen minutes a day outside of his cell, and then

only to shower[;] possession of no personal property: possession of

only one pair of boxers, one towel, one pair of socks, no use of

telephone, radio, or television; no access to reading materials; and

visitation privileges.

(Id. ¶ 22.) Moreover, Plaintiff alleges that his visitation privileges were suspended for three

months twice in 2021, even though the Administrative Code provides that such privileges can only

be lost “[i]f the violation involves visiting.” (Id. ¶ 23 (italics omitted).)

Plaintiff alleges that his “excessive prolonged exposure to solitary confinement” has

resulted in “extreme mental health disabilities for which he was prescribed Loxapine 10 mg for

schizophrenia, Trazadone 150 mg for depression and anxiety, and Sertraline 50 mg for social

anxiety, phobia, obsessive compulsive disorder, post-traumatic stress disorder, self-harm, and

depression, which conditions continue to exacerbate.” (Id. ¶ 24.) Plaintiffs allege other injuries as

well, (id. ¶ 25), all of which were caused by various actions of Defendants, including (a) refusing

to intervene to prevent the use of excessive solitary confinement; (b) fully restraining Plaintiff and

subjecting him to excessive cell and strip searches without cause; (c) refusing to intervene to stop

the use of the unlawful Matrix program; and (d) other actions committed by each specific

Defendant. (Id. ¶ 26; see id. ¶¶ 27–46.) Plaintiff seeks $350,000 in general damages, an unknown

amount of medical expenses, $650,000 in punitive damages, attorneys’ fees, and all other relief to

which he may be entitled or which a jury may award. (Id.¶ 47.)

II. RULE 12(B)(1) MOTION (OFFICIAL CAPACITY CLAIMS)

A. Relevant Standard

In Ramming v. United States, 281 F.3d 158 (5th Cir. 2001), the Fifth Circuit explained the

following about the Rule 12(b)(1) standard:

Motions filed under Rule 12(b)(1) of the Federal Rules of Civil

Procedure allow a party to challenge the subject matter jurisdiction

of the district court to hear a case. Fed. R. Civ. P. 12(b)(1). Lack of

subject matter jurisdiction may be found in any one of three

instances: (1) the complaint alone; (2) the complaint supplemented

by undisputed facts evidenced in the record; or (3) the complaint

supplemented by undisputed facts plus the court's resolution of

disputed facts. Barrera–Montenegro v. United States, 74 F.3d 657,

659 (5th Cir. 1996).

The burden of proof for a Rule 12(b)(1) motion to dismiss is on the

party asserting jurisdiction. McDaniel v. United States, 899 F. Supp.

305, 307 (E.D. Tex. 1995). Accordingly, the plaintiff constantly

bears the burden of proof that jurisdiction does in fact

exist. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th

Cir. 1980).

When a Rule 12(b)(1) motion is filed in conjunction with other Rule

12 motions, the court should consider the Rule 12(b)(1)

jurisdictional attack before addressing any attack on the merits. Hitt

v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curiam).

. . .

In examining a Rule 12(b)(1) motion, the district court is

empowered to consider matters of fact which may be in

dispute. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981).

Ultimately, a motion to dismiss for lack of subject matter

jurisdiction should be granted only if it appears certain that the

plaintiff cannot prove any set of facts in support of his claim that

would entitle plaintiff to relief. Home Builders Ass'n of Miss., Inc.

v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998).

Id. at 161.

B. Parties’ Arguments

Defendants assert that “it is well established that suits against state officials in their official

capacities for monetary damages are barred by the Eleventh Amendment.” (Doc. 56-1 at 11.)

Thus, these claims should be dismissed. (Id.)

Plaintiff responds that “Eleventh Amendment qualified immunity” is a “fact driven issue,

considered on an individual case basis.” (Doc. 60 at 8.) Plaintiff maintains that these issues are

best resolved later in the case. (Id.) Plaintiff concludes on this issue, “given the judicially provided

analysis on” the issue that Plaintiff’s constitutional rights were violated, “that the Eleventh

Amendment barring such claims under qualified immunity is easily defeated and the Defendant’s

are in fact liable to Mr. Imbraguglio for the claims asserted and not shielded by qualified

immunity.” [sic throughout] (Id.)

In reply, Defendants assert, “ Plaintiff improperly responds to this rule [about the Eleventh

Amendment] with analysis regarding whether qualified immunity should be awarded to these

defendants. However, that issue is not before the court, and [P]laintiff’s arguments should not be

considered.” (Doc. 61 at 7.) Thus, Defendants say, all claims for monetary damages against

Defendants in their official capacity should be dismissed. (Id.)

C. Applicable Law

The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not

be construed to extend to any suit in law or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.

Const. amend. XI. “It is clear, of course, that in the absence of consent[,] a suit in which the State

or one of its agencies or departments is named as the defendant is proscribed by the Eleventh

Amendment. This jurisdictional bar applies regardless of the nature of the relief

sought.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (citations omitted).

Similarly, “the Eleventh Amendment bars a suit against state officials when the state is the

real, substantial party in interest. Thus, the general rule is that relief sought nominally against an

officer is in fact against the sovereign if the decree would operate against the latter.” Id. at 101

(cleaned up). Accordingly, “[t]he Eleventh Amendment bars claims against a state brought

pursuant to 42 U.S.C. § 1983.” Aguilar v. Tex. Dep't of Crim. Just., 160 F.3d 1052, 1054 (5th Cir.

1998) (citing Farias v. Bexar Cnty. Bd. of Trs. for Mental Health Mental Retardation Servs., 925

F.2d 866, 875 n.9 (5th Cir. 1991)). “Section 1983 does not waive the states’ sovereign

immunity[.]” Id. (citing Quern v. Jordan, 440 U.S. 332, 338 n.7 (1979)).

Indeed, “[t]he Supreme Court has ‘held that a State is not a ‘person’ against whom a § 1983

claim for money damages might be asserted.’ ” Murray v. LeBlanc, No. 21-592, --- F. Supp. 3d --

-, 2022 WL 4361738, at *7 (M.D. La. Sept. 20, 2022) (deGravelles, J.) (quoting Griffin v. La. State

Bd. of Nursing, No. 21-303, 2021 WL 5239585, at *5 (M.D. La. Nov. 10, 2021) (deGravelles, J.)

(quoting Williams v. Louisiana, No. 17-453, 2019 WL 1003645, at *4 (M.D. La. Feb. 28, 2019)

(deGravelles, J.) (quoting Med. RX/Sys., P.L.L.C. v. Tex. Dep't of State Health Servs., 633 F. App'x

607, 610 (5th Cir. 2016) (citing Lapides v. Bd. of Regents of Univ. Sys. of Ga, 535 U.S. 613, 617

(2002))))). “This rule extends to ‘arms of the state,’ and to a state's ‘officials acting in their official

capacities.’ ” Id. (quoting Griffin, 2021 WL 5239585, at *5 (quoting Williams, 2019 WL 1003645,

at *4 (internal citations and quotations omitted))).

Nevertheless, “[i]n Ex Parte Young, 209 U.S. 123 [ ] (1908), the Supreme Court carved out

an exception to Eleventh Amendment immunity.” Aguilar, 160 F.3d at 1054. “The [Ex Parte

Young] Court held that enforcement of an unconstitutional law is not an official act because a state

can not confer authority on its officers to violate the Constitution or federal law.” Id. (citing Am.

Bank & Tr. Co. of Opelousas v. Dent, 982 F.2d 917, 920–21 (5th Cir. 1993)). “To meet the Ex

Parte Young exception, a plaintiff's suit alleging a violation of federal law must be brought against

individual persons in their official capacities as agents of the state, and the relief sought must be

declaratory or injunctive in nature and prospective in effect.” Id. (citing Saltz v. Tenn. Dep't of

Emp. Sec., 976 F.2d 966, 968 (5th Cir. 1992)).

D. Analysis

“There is little dispute on this issue. Plaintiffs do not seriously argue that DPSC is not an

‘arm of the state’ entitled to Eleventh Amendment immunity, nor could it.” Murray, 2022 WL

4361738, at *8 (citing Hanna v. LeBlanc, 716 F. App'x 265, 268 (5th Cir. 2017) (per curiam)

(“DPS & C, as a Louisiana executive department . . . [is] entitled to the Eleventh Amendment's

protection.” (citations omitted)). Further, Plaintiff makes no claims that would invoke the Ex parte

Young exception; rather, he asserts only claims for monetary damages. (See Compl. ¶ 47, Prayer,

Doc. 1 at 21–23.) Thus, Plaintiff’s claims against Defendants in their official capacity are barred

by the Eleventh Amendment.

Further, Plaintiff’s discussion of qualified immunity is misplaced. “Qualified immunity

provides government officials performing discretionary functions with a shield against civil

damages liability, so long as their actions could reasonably have been thought consistent with the

rights they are alleged to have violated.” Watkins v. Gautreaux, 515 F. Supp. 3d 500, 508 (M.D.

La. 2021) (deGravelles, J.) (quoting Gobert v. Caldwell, 463 F.3d 339, 345 (5th Cir. 2006) (citing

Anderson v. Creighton, 483 U.S. 635, 638 (1987))). “In determining whether an official enjoys

[qualified] immunity, we ask (1) whether the plaintiff has demonstrated a violation of a clearly

established federal constitutional or statutory right and (2) whether the official's actions violated

that right to the extent that an objectively reasonable person would have known.” Id. (quoting

Gobert, 463 F.3d at 345 (citing Hope v. Pelzer, 536 U.S. 730 (2002))).

Conversely, as Justice Stevens explained in his dissent in Pennhurst, “the Eleventh

Amendment did more than simply prohibit suits brought by citizens of one State against another

State. Rather, it exemplified the broader and more ancient doctrine of sovereign immunity, which

operates to bar a suit brought by a citizen against his own State without its consent.” 465 U.S. at

140–41 (Stevens, J., dissenting) (citations omitted).

In short, qualified immunity and the Eleventh Amendment are wholly distinct concepts.

Even if Plaintiff’s arguments about the former were correct (which is questionable), they would

have little to do with the latter and the issue at hand. Accordingly, all claims for monetary damages

against Defendants in their official capacity will be dismissed without prejudice, as barred by the

Eleventh Amendment.

III. RULE 12(B)(6) MOTION (INDIVIDUAL CAPACITY CLAIMS)

A. Relevant Standard

In Erickson v. Pardus, 551 U.S. 89 (2007), the Supreme Court explained:

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and

plain statement of the claim showing that the pleader is entitled to

relief.” Specific facts are not necessary; the statement need only

“ ‘give the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.’ ”

Id. at 93 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

Interpreting Rule 8(a) and Twombly, the Fifth Circuit explained:

The complaint (1) on its face (2) must contain enough factual matter

(taken as true) (3) to raise a reasonable hope or expectation (4) that

discovery will reveal relevant evidence of each element of a claim.

“Asking for [such] plausible grounds to infer [the element of a

claim] does not impose a probability requirement at the pleading

stage; it simply calls for enough facts to raise a reasonable

expectation that discovery will reveal [that the elements of the claim

existed].”

Lormand v. US Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009) (quoting Twombly, 550

U.S. at 545) (emphasis added by Lormand)).

Later, in In re Great Lakes Dredge & Dock Co. LLC., 624 F.3d 201 (5th Cir. 2010), the

Fifth Circuit explained:

To avoid dismissal [under Fed. R. Civ. P. 12(b)(6)], “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 [ ] (2009) (quoting [Twombly, 550 U.S. 544]). To be

plausible, the complaint's “[f]actual allegations must be enough to

raise a right to relief above the speculative level.” Twombly, 550

U.S. at 555 [ ]. In deciding whether the complaint states a valid claim

for relief, we accept all well-pleaded facts as true and construe the

complaint in the light most favorable to the plaintiff. [Doe v.

MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008)] (citing [Hughes

v. Tobacco Inst., Inc., 278 F.3d 417, 420 (5th Cir. 2001)]). We do

not accept as true “conclusory allegations, unwarranted factual

inferences, or legal conclusions.” Ferrer v. Chevron Corp., 484 F.3d

776, 780 (5th Cir. 2007) (quoting Plotkin v. IP Axess Inc., 407 F.3d

690, 696 (5th Cir. 2005)); see also Iqbal, 129 S. Ct. at 1940 (“While

legal conclusions can provide the complaint's framework, they must

be supported by factual allegations.”).

Id. at 210.

Analyzing the above case law, our brother in the Western District stated:

Therefore, while the court is not to give the “assumption of truth” to

conclusions, factual allegations remain so entitled. Once those

factual allegations are identified, drawing on the court's judicial

experience and common sense, the analysis is whether those facts,

which need not be detailed or specific, allow “the court to draw the

reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft, 129 S. Ct. at 1949, Twombly, 555 U.S. at 556,

[ ]. This analysis is not substantively different from that set forth in

Lormand, supra, nor does this jurisprudence foreclose the option

that discovery must be undertaken in order to raise relevant

information to support an element of the claim. The standard, under

the specific language of Fed. Rule Civ. P. 8(a)(2), remains that the

defendant be given adequate notice of the claim and the grounds

upon which it is based. This standard is met by the “reasonable

inference” the court must make that, with or without discovery, the

facts set forth a plausible claim for relief under a particular theory

of law provided there is a “reasonable expectation” that “discovery

will reveal relevant evidence of each element of the claim.”

Lormand, 565 F.3d at 257; Twombly, 555 U.S. at 556 [ ].

Diamond Servs. Corp. v. Oceanografia, S.A. De C.V., No. 10-177, 2011 WL 938785, at *3 (W.D.

La. Feb. 9, 2011) (citation omitted).

Afterward, in Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787 (5th Cir. 2011),

the Fifth Circuit explained:

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. A claim for relief is plausible on its face when

the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct

alleged. A claim for relief is implausible on its face when the well-

pleaded facts do not permit the court to infer more than the mere

possibility of misconduct.

Id. at 796 (cleaned up).

Finally, in Thompson v. City of Waco, Texas, the Fifth Circuit recently summarized the

Rule 12(b)(6) standard as thus:

We accept all well-pleaded facts as true and view all facts in the

light most favorable to the plaintiff. We need not, however, accept

the plaintiff's legal conclusions as true. To survive dismissal, a

plaintiff must plead enough facts to state a claim to relief that is

plausible on its face. 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. Our task, then, is to determine whether the plaintiff stated

a legally cognizable claim that is plausible, not to evaluate the

plaintiff's likelihood of success.

764 F.3d at 502–503 (cleaned up).

Additionally, the general rule regarding what may be considered in deciding a Rule

12(b)(6) motion is well known.

In determining whether a plaintiff's claims survive a Rule 12(b)(6)

motion to dismiss, the factual information to which the court

addresses its inquiry is limited to (1) the facts set forth in the

complaint, (2) documents attached to the complaint, and (3) matters

of which judicial notice may be taken under Federal Rule of

Evidence 201.

Gomez v. Galman, 18 F.4th 769, 775 (5th Cir. 2021) (per curiam) (quoting Walker v. Beaumont

Indep. Sch. Dist., 938 F.3d 724, 735 (5th Cir. 2019)). See also Innova Hosp. San Antonio, Ltd.

P'ship v. Blue Cross & Blue Shield of Georgia, Inc., 892 F.3d 719, 726 (5th Cir. 2018). However,

there is an exception to this rule: a court may consider documents attached to a motion to dismiss

“where the complaint refers to the documents and they are central to the claim.” Kane Enters. v.

MacGregor (USA) Inc., 322 F.3d 371, 374 (5th Cir. 2003) (citing Collins v. Morgan Stanley Dean

Witter, 224 F.3d 496, 498–99 (5th Cir. 2000)).

B. Parties’ Arguments

1. Defendants’ Original Memorandum (Doc. 56-1)

Defendants begin by emphasizing that solitary confinement is not per se cruel and unusual

under the Eighth Amendment. (Doc. 56-1 at 5.) According to Defendants, Plaintiff must show

that the prison conditions posed a “ ‘sufficiently serious’ threat to his health’ and “that prison

officials acted with ‘deliberate indifference’ to such threat.” (Id. (quoting Hope v. Harris, 861 F.

App’x 571, 582 (5th Cir. 2021) (quoting Farmer v. Brennan, 511 U.S. 825 (1994)).) Defendants

say Plaintiff fails to satisfy either requirement. (Id.)

As to the first, the deprivation must be “objectively serious” such that it becomes cruel and

unusual punishment. (Id. at 6.) Defendants discuss a few cases that purport to require deprivation

of basic needs, and Defendants maintain that Plaintiff’s situation falls short. (Id. at 6–7.) Rather,

Plaintiff’s allegations merely amount to conditions of solitary, which, again, are not per se cruel

and unusual. (Id. at 7.) Inmates are not entitled to be housed in a particular part of the jail. (Id.)

Further, while Plaintiff complains of a long confinement, courts have found that longer

confinements did not give rise to constitutional violations. (Id. at 7–8.)

As to the second requirement, Plaintiff fails to overcome the high standard required for

deliberate indifference. (Id. at 8–9.) Plaintiff does not allege that any of these Defendants knew

of a substantial risk to Plaintiff’s health or disregarded that risk. (Id. at 9.)

Defendants close by arguing that various other allegations do not rise to a constitutional

violation. (Id.) These include using restraints, losing visitation privileges, being subjected to strip

searches and cell searches, and violations of the Louisiana Administrative Code. (Id. at 9–11.)

Finally, Plaintiff has no due process claim, as he filed ARPs and attended hearings on disciplinary

matters, yet all claims of violations related to these proceedings are conclusory. (Id. at 11.)

2. Plaintiff’s Opposition (Doc. 60)

Plaintiff maintains that he has alleged “violation[s] of the legislatively codified rules and

procedures for adult offenders” and “judicially prescribed sanctions involving solitary

confinement,” all “in contravention of his constitutional rights.” (Doc. 60 at 2.) Plaintiff

emphasizes that he has been “consistently in solitary confinement for over 7 years, with only two

stints out of solitary confinement totaling 59 days.” (Id. at 4.) While courts have found periods of

under fifteen months to be insufficient to give rise to a liberty interest, “the length of confinement

is but one factor that is considered.” (Id.)

“Here, there is a 7 year period in solitary confinement together with other issues, however,

the length of confinement is clearly in violation of established codified and Judicially prescribed

sanctions.” (Id.) Plaintiff claims that there is extensive literature on how isolation affects

“mentally disturbed prisoners,” and Plaintiff’s mental health conditions have been exacerbated by

Defendants’ conduct. (Id.)

As to deliberate indifference, Plaintiff asserts that his mental health conditions were “well

documented[,]” and Defendants had knowledge of this, yet continued his confinement. (Id. at 5.)

“This issue of the stress of continued solitary confinement upon Mr. Imbraguglio has brought to

[DPSC] officials’ attention several times within the seven year period he has been kept therein.”

(Id.)

Plaintiff further states, “It bears noting that Mr. Imbraguglio is not complaining of the

confinement itself, but rather the illegal unconstitutional length thereof.” (Id. at 5.) Defendant says

Plaintiff is merely complaining about “dissatisfaction” with his assignment, but, to the contrary,

Plaintiff objects to his seven years in solitary. (Id. at 5–6.) Plaintiff again hammers that the

punishment imposed on him, including the Matrix, violates Louisiana law and the consent decree

in Ralph v. Dees, C.A. 71-94 (M.D. La.). (Id. at 6.) Plaintiff concludes by urging that Defendants

are not entitled to qualified immunity and that their motion should be denied. (Id. at 7–8.)

3. Defendants’ Reply (Doc. 61)

In reply, Defendants again argue that long-term solitary confinement is not a per se Eighth

Amendment violation, but, Defendants say, that is exactly what Plaintiff argues. (Doc. 61 at 3.)

Plaintiff concedes that he is complaining only about the length of confinement, (id. (citing Doc.

60 at 5)), but allegations that this amounts to a constitutional violation are conclusory. (Id.)

Even if Plaintiff was confined in violation of the Administrative Code and Matrix, that

alone is insufficient to support a constitutional violation. (Id. at 3–4.) Violations of department

rules do not, by themselves, support a violation of constitutional rights, and the Fifth Circuit has

likewise rejected such a claim based on the Ralph v. Dees decree. (Id. at 4.) Plaintiff has failed to

cite to any authority supporting a finding that this duration is constitutionally impermissible,

whereas Defendants rely on several cases showing longer durations were not violations. (Id. at 4–

5.)

As to the elements of Plaintiff’s claim, courts first look at whether an inmate was deprived

of the basic necessities of life, but, here, Plaintiff complains only about the length of his

confinement. (Id. at 5–6.) Defendants rely upon Fussel v. Vannoy, No. 13-571, 2016 WL 3538376

(M.D. La. June 22, 2016), in support of their case. (Id. at 6.) Plaintiff also fails to demonstrate the

second requirement: deliberate indifference. (Id. at 7.)

C. Applicable Law

1. Eighth Amendment Conditions of Confinement Claims Generally

“The Eighth Amendment prohibits the infliction of ‘cruel and unusual punishments.’ ”

Hope v. Harris, 861 F. App'x 571, 582 (5th Cir. 2021) (per curiam) (quoting U.S. Const. amend.

VIII). “Long-term solitary confinement is not per se cruel and unusual,” but “there is a line where

solitary confinement conditions become so severe that its use is converted from a viable prisoner

disciplinary tool to cruel and unusual punishment.” Id. (cleaned up).

“To state a claim for a violation of the Eighth Amendment based on conditions of

confinement, a prisoner must allege (1) that the prison conditions pose a ‘sufficiently serious’

threat to his health, including his mental health, and (2) that prison officials acted with ‘deliberate

indifference’ to such threat.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting

Wilson v. Seiter, 501 U.S. 294, 298, 302 (1991))).

2. First Element: Deprivation of Basic Human Need

“The Eighth Amendment ‘does not mandate comfortable prisons, but neither does it permit

inhumane ones.’ ” LaVergne v. McDonald, No. 19-709, 2020 WL 7090064, at *11 (M.D. La. Nov.

23, 2020) (quoting Farmer, 511 U.S. at 832 (internal quotation marks and citations omitted)),

report and recommendation adopted, No. 19-709, 2020 WL 7081598 (M.D. La. Dec. 3, 2020).

“At a minimum, prison officials ‘must provide humane conditions of confinement’ and ‘ensure

that inmates receive adequate food, clothing, shelter, and medical care.’ ” Id. (quoting Farmer,

511 U.S. at 832). “They cannot deprive prisoners of the ‘basic elements of hygiene’ or the

‘minimal civilized measure of life's necessities.’ ” Id. (quoting Palmer v. Johnson, 193 F.3d 346,

352–53 (5th Cir. 1999) (quotation marks omitted)). “Prison conditions cannot inflict ‘wanton and

unnecessary’ pain.” Id. (quoting Palmer, 193 F.3d at 351).

In sum, “[t]o meet the first requirement,” for a conditions of confinement claim, “the

prisoner must show that the conditions, either alone or in combination, constitute an unquestioned

and serious deprivation of his basic human needs such as food, clothing, medical care, and safe

and sanitary living conditions.” Hope, 861 F. App'x at 582 (cleaned up). “And, conditions of

confinement may be aggregated to rise to the level of a constitutional violation ‘when they have a

mutually enforcing effect that produces the deprivation of a single, identifiable human need such

as food, warmth, or exercise.’ ” Id. at 582–83 (citing Wilson, 501 U.S. at 304 (explaining that there

may be an Eighth Amendment violation where a prisoner complained of a “low cell temperature

at night combined with a failure to issue blankets”)); see also id. at 584 (finding sufficiently serious

condition where plaintiff spent “decades [in] solitary confinement alongside such conditions of

mold, urine, and feces” and where plaintiff claimed he “suffered physical harm as a result of being

exposed to such chemicals ‘unnecessarily dispensed’ by” defendant); see also Novak v. Beto, 453

F.2d 661, 665 (5th Cir. 1971) (emphasizing that “there are several cases that have concluded that

certain prison conditions were so ‘base, inhuman and barbaric’ that they violate the Eighth

Amendment and that the “common thread that runs through all these cases and that [wa]s not

present in our case” was “the deprivation of basic elements of hygiene,” and holding that, while

“trouble[ing],” there was no Eighth Amendment violation “by the lightless cell, the limited

bedding, and the minimal food provided prisoners in solitary confinement” (citing for “common

thread” the following: Wright v. McMann, 387 F.2d 519 (2d Cir. 1967) (complaint alleged cell

encrusted with excrement, plaintiff entirely naked, forced to sleep on concrete floor, windows open

throughout subfreezing weather, no soap, towel or toilet paper); Hancock v. Avery, 301 F. Supp.

786 (M.D. Tenn. 1969) (hole for waste, flushed irregularly by guard, no soap, towel or toilet paper,

prisoner slept naked on floor); Holt v. Sarver, 300 F. Supp. 825 (E.D. Ark. 1969) (isolation cells

dirty and unsanitary, pervaded with bad odors, plain cotton mattress uncovered and dirty;

conducive to spreading, and did spread, infectious diseases); Jordan v. Fitzharris, 257 F. Supp.

674 (N.D. Cal. 1966) (cells not cleaned regularly, prisoner had no means to clean himself, a hole

for receiving bodily wastes, no flushing mechanism))); see also LaVergne, 2020 WL 7090064, at

*14 (“Generally, only more extreme deprivations [than conclusory allegations about a lack of air

conditioning, being limited to two pre-approved visits per month, and having restraints used during

transport] rise to the level of a constitutional deprivation.” (citing Novak, 453 F.2d at 665 and its

authority)).

Additionally, “[c]onfinement to a cell for 23 hours per day does not rise to the level of a

constitutional violation.” LaVergne, 2020 WL 7090064, at *13 (citing Milton v. Gusman, No. 10-

3309, 2010 WL 5376117 at *1 (E.D. La. Dec. 20, 2010) (citing Argue v. Hofmeyer, 80 F. App’x.

427, 429 (6th Cir. 2003) (holding that confinement for 23 hours per day, Monday through Friday

is not unconstitutional because it does not impose an atypical and significant hardship); and Hill

v. Pugh, 75 F. App’x. 715, 721 (10th Cir. 2003) (holding that confinement for 23 hours per day

five days a week and 24 hours per day on the remaining two days is not unconstitutional because

it shows neither an unquestioned and serious deprivation of basic human needs nor intolerable or

shocking conditions))).

Further, “[w]hile this circuit has noted in the past that deprivation of exercise per se does

not violate the cruel and unusual punishment clause, it has also noted that denial of exercise may

constitute an impairment of health actionable under the Eighth Amendment.” Hernandez v.

Velasquez, 522 F.3d 556, 560 n.5 (5th Cir. 2008) (internal quotations and citations omitted) (citing,

inter alia, Miller v. Carson, 563 F.2d 741, 751 n. 12 (5th Cir.1977)). “In the specific context of a

health impairment claim, the facts of a case must clearly evince the prisoner's serious medical need

and the prison officials' deliberate indifference to it.” Id. at 561 (cleaned up). “Merely negligent

diagnosis or treatment of a medical condition does not state a claim under the Eighth Amendment.”

Id. (citation omitted). Ultimately, the Fifth Circuit has advised “that deprivation of exercise claims

should be evaluated on a case-by-case basis using, inter alia, the following criteria: (1) the size of

the inmate's cell; (2) the amount of time the inmate spends locked in his cell each day; and (3) the

overall duration of the inmate's confinement.” Hewitt v. Henderson, 271 F. App'x 426, 428 (5th

Cir. 2008) (citations omitted).

Thus, in Hernandez, the Fifth Circuit found that an inmate did not suffer an Eighth

Amendment violation by being denied exercise for thirteen months because there was “no

indication” that the conditions he suffered (“muscle atrophy, stiffness, loss of range of motion, and

depression”) “posed a substantial risk of serious harm.” 522 F.3d at 560–61. Further, the plaintiff

failed to show that “prison officials failed reasonably to address his medical needs,” as the evidence

showed that they timely responded to plaintiff’s sick call requests complaining about the above

symptoms. Id. at 561–62.

Likewise, in LaVergne, this Court denied a conditions-of-confinement claim for lack of

exercise, explaining:

Plaintiff is provided with outdoor exercise three days per week and

has failed to provide any facts indicating that the limit on the amount

of outdoor exercise he receives has had any detrimental effects to

his health. Moreover, the Fifth Circuit has found that one hour of

outdoor exercise three days per week is constitutionally sufficient.

Thus, Plaintiff has failed to state a claim of constitutional dimension

with respect to his complaints of being in a cell 23 hours per day and

enjoying three days of outdoor recreation per week for one hour per

day.

LaVergne, 2020 WL 7090064, at *13.

But, in Hewitt, the Fifth Circuit reversed a dismissal of claims as frivolous because:

The record in the instant case has not been developed on the

specifics of the exercise prohibition to which Hewitt has been

subject or the particulars of the exercise alternatives available to

him. Furthermore, in reaching its conclusion that Hewitt's claims

were frivolous and failed to state a claim on which relief could be

granted, the district court did not sufficiently inquire into Hewitt's

particular conditions of confinement and the exact manner in which

the defendants have applied the exercise prohibition to him. For

instance, the record is incomplete concerning, inter alia, the

particular size of Hewitt's cell or the degree to which in-cell exercise

in fact was practicable; whether Hewitt is provided with some form

of regular out-of-cell exercise or an otherwise appropriate exercise

alternative; whether Hewitt has exposure to fresh air and sunlight

during his recreation periods; the amount of time that Hewitt is

required to spend in his cell each day; the prospective length of

Hewitt's imprisonment; and the amount of time that Hewitt already

has been in administrative segregation. These factors and other

specific details of Hewitt's conditions of confinement ultimately are

determinative of whether Hewitt has stated an Eighth Amendment

claim for deprivation of adequate exercise opportunities.

271 F. App’x at 428 (citations omitted).

Similarly, in Sinclair v. Henderson, 331 F. Supp. 1123, 1129–31 (E.D. La. 1971), the

district court evaluated whether there was a constitutional violation when, for up to nine years,

Death Row inmates were housed in 6 feet by 9 feet cells and were allowed out for only 15 minutes

to bathe, wash clothes, and supposedly exercise. Id. at 1129–31. Chief Judge West found cruel

and unusual punishment because the inmates were denied a reasonable “opportunity for regular

outdoor exercise[.]” Id.

3. Second Element: Deliberate Indifference

With respect to the second element, “the prisoner must show that the defendant acted with

‘more than mere negligence.’ ” Hope, 861 F. App'x at 583 (quoting Farmer, 511 U.S. at 835). A

“prisoner must show that those prison officials were (1) ‘aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists’; (2) ‘subjectively drew the inference

that the risk existed’; and (3) ‘disregarded the risk.’ ” Id. (quoting Cleveland v. Bell, 938 F.3d 672,

676 (5th Cir. 2019) (citing Farmer, 511 U.S. at 837 (alterations omitted))).

In short, “the prison officials must know of, and disregard, an excessive risk to a prisoner's

health or safety.” Id. (citing Cleveland, 938 F.3d at 676). “Evidence that a risk was obvious or

otherwise apparent may be sufficient to support an inference that the prison official was aware of

the risk.” Id. (citing Estate of Cheney ex rel. Cheney v. Collier, 560 F. App’x 271, 273–74 (2014)

(collecting cases)).

4. Duration in Solitary

In sum, courts in this circuit have denied claims for periods in solitary for nineteen years

or longer where plaintiffs have failed to satisfy the Farmer v. Brennan standard in whole or in part.

See Fussell v. Vannoy, No. 13-571, 2016 WL 3538376, at *2–4 (M.D. La. June 22, 2016) (rejecting

claim that 27-plus years in solitary was an Eighth Amendment violation because (a) there was a

penological justification for the extended lockdown, given plaintiff’s 87 disciplinary write-ups,

and (b) plaintiff failed to show deliberate indifference because (i) even though Plaintiff alleged

psychological disorders arising from his time in solitary, defendant was not a part of the mental

health team, and (ii) in any event, plaintiff was treated for his injuries); Striz v. Collier, No. 18-

202, 2020 WL 7868102, at *13–14 (S.D. Tex. Nov. 24, 2020) (granting motion for summary

judgment on Eighth Amendment claim where Plaintiff did not “make any specific allegations

about the conditions of his confinement” in his nineteen years in administrative segregation but

only “vague and conclusory allegations,” and where Plaintiff failed to show deliberate

indifference), aff'd, No. 20-40878, 2022 WL 1421834 (5th Cir. May 5, 2022) (per curiam). But,

ultimately, “under the Eighth Amendment, ‘the length of confinement cannot be ignored in

deciding whether the confinement meets constitutional standards.’ ” Hope, 861 F. App'x at 583

(quoting Hutto v. Finney, 437 U.S. 678, 686 (1978)).

D. Analysis

Having carefully considered the matter, the Court will grant Defendants’ motion. In short,

Plaintiff has failed to adequately plead any Eighth Amendment violation.

Again, to meet the first Farmer v. Brennan requirement for a conditions of confinement

claim, “the prisoner must show that the conditions, either alone or in combination, constitute an

unquestioned and serious deprivation of his basic human needs such as food, clothing, medical

care, and safe and sanitary living conditions.” Hope, 861 F. App'x at 582.

Here, Plaintiff alleges that he has been in solitary confinement, with only two short breaks,

for over seven and a half years. (Compl. ¶ 5, Doc. 1.) Even worse, Plaintiff pleads that, while at

LSP, starting around January 27, 2021, and continuing, Plaintiff was only allowed to leave his 6’

x 9’ cell in solitary confinement for fifteen minutes, and then only to shower. (Id. ¶¶ 8, 18.)

Plaintiff complains of a number of conditions, including, “only fifteen minutes a day outside of

his cell, and then only to shower[;] possession of no personal property: possession of only one pair

of boxers, one towel, one pair of socks, no use of telephone, radio, or television; no access to

reading materials; and visitation privileges.” (Id. ¶ 22.) Finally, Plaintiff describes in detail the

various mental health medications he was prescribed to deal with the severe mental distress from

which he suffers from his time in solitary. (Id. ¶ 24.)

The Court is deeply troubled by the terrible (and seemingly unjustified) conditions

Defendants have made Plaintiff endure. But, what is critical is Plaintiff’s statement in his

opposition: “It bears noting that Mr. Imbraguglio is not complaining of the confinement itself, but

rather the illegal unconstitutional length thereof.” (Doc. 60 at 5.) Thus, even if at least some of

these conditions (such as only being allowed out of his cell for fifteen minutes a day) may

constitute a sufficiently serious condition, see Sinclair, 331 F. Supp. at 1129–31, here Plaintiff is

only complaining about the duration of his confinement.

As amply demonstrated above, “[l]ong-term solitary confinement is not per se cruel and

unusual,” Hope, 861 F. App'x at 582, and numerous other cases have held that confinements of

longer duration were not automatically constitutional violations, see Fussell, 2016 WL 3538376,

at *3 (rejecting claim for 27-plus year confinement); Striz, 2020 WL 7868102, at *13–14

(dismissing claim for nineteen-years in solitary). Thus, though this Farmer v. Brennan element

could possibly be cured through amendment, Plaintiff ultimately fails at this time to satisfy the

first part of his condition-of-confinement claim.

But, more fatally, Plaintiff also fails to satisfy the second requirement: deliberate

indifference. Again, a “prisoner must show that those prison officials were (1) ‘aware of facts from

which the inference could be drawn that a substantial risk of serious harm exists’; (2) ‘subjectively

drew the inference that the risk existed’; and (3) ‘disregarded the risk.’ ” Hope, 861 F. App'x at

583 (emphasis added) (quoting Cleveland, 938 F.3d at 676).

Here, Plaintiff specifically alleges that his “excessive prolonged exposure to solitary

confinement” has resulted in “extreme mental health disabilities for which he was prescribed

Loxapine 10 mg for schizophrenia, Trazadone 150 mg for depression and anxiety, and Sertraline

50 mg for social anxiety, phobia, obsessive compulsive disorder, post-traumatic stress disorder,

self-harm, and depression, which conditions continue to exacerbate.” (Compl. ¶ 24, Doc. 1

(emphasis added).) Thus, although “[t]he Court does not question that Plaintiff's [many] years in

solitary confinement have caused him significant harm,” there is no deliberate indifference because

“Plaintiff is, by all accounts, actively being treated for the injuries of which he complains.” Fussell,

2016 WL 3538376, at *4 (citing, inter alia, Rogers v. Boatright, 709 F.3d 403, 410 (5th Cir. 2013)

(acknowledging that “a prisoner's disagreement with his medical treatment” does not constitute

deliberate indifference, absent exceptional circumstances); see also Hernandez, 522 F.3d at 561–

62 (dismissing impairment of health claim because, “[v]iewing this evidence in the light most

favorable to Hernandez, it does not show that Defendants wantonly disregarded his medical needs.

Rather, it shows that Hernandez was provided with medical care as he requested it.”).

Thus, even assuming that Plaintiff had adequately alleged that each Defendant was aware

of Plaintiff’s severe mental distress and the severe risk of harm to him from his time in solitary,

(see Compl. ¶¶ 28–46, Doc. 1), a burden which can by itself be difficult to meet, see Fussell, 2016

WL 3538376, at *4 (finding no deliberate indifference because defendant was “not, nor has he

ever been, a member of LSP's Mental Health Department” such that he would have “some level of

control over” that department), Plaintiff has failed to allege that Defendants disregarded that risk

so as to be deliberately indifferent to it. For this additional reason, Plaintiff’s Eighth Amendment

claims fail.

Plaintiff’s reliance on the Louisiana Administrative Code and consent decree of Ralph v.

Dees, No. 71-94 (M.D. La.), is also misplaced, for the Fifth Circuit rejected similar arguments in

Marshall v. Lynn, 3 F.3d 440, 1993 WL 347326 (5th Cir. 1993) (unreported per curiam). There,

an inmate at LSP filed a § 1983 action “alleging that his constitutional rights were violated because

the 1986 Disciplinary Rules and Procedures for Adult Prisoners had not been registered in

accordance with the Louisiana Administrative Procedures Act . . . and the consent decree entered

in Ralph v. Dees, C.A. No. 71-94 (M.D. La. 1975).” Id. at *1. The Fifth Circuit dismissed the

plaintiff’s appeal as frivolous, explaining:

In order to state a claim under 42 U.S.C. § 1983, the plaintiff must

allege a deprivation of rights, privileges, or immunities secured by

the Constitution or laws of the United States. Parrat v. Taylor, 451

U.S. 527, 535 [ ] (1981). This Court has previously rejected a similar

claim, holding in Martin v. Blackburn, 581 F.2d 94 (5th Cir. 1978),

that a “claim that state officials have failed to follow the procedural

provisions of state law, without more, does not aver a cause of action

under § 1983.” The Louisiana Administrative Procedures Act does

not create a liberty interest in the promulgation of prison rules in

accordance with state law. See Welch v. Roemer, No. 92-3017 (5th

Cir. Mar. 18, 1992) (unpublished). Marshall's argument that the

consent decree in Ralph v. Dees created a protected liberty interest

has no merit. Remedial decrees do not create or enlarge

constitutional rights and do not serve as the basis of § 1983

liability. Green v. McKaskle, 788 F.2d 1116, 1122-23 (5th Cir.

1986).

Id. See also Lewis v. Sec'y of Pub. Safety & Corr., 870 F.3d 365, 369 (5th Cir. 2017) (“The LaDPSC

and [Corrections Corporation of America] internal rules and regulations do not alone create

federally-protected rights[,] and a prison official's failure to follow prison policies or regulations

does not establish a violation of a constitutional right.” (citations omitted)). For similar reasons,

Plaintiff’s claim is not saved by the Louisiana Administrative Code or Ralph v. Dees decree.

In sum, Plaintiff fails to state a viable Eighth Amendment conditions-of-confinement claim

against any Defendant. As a result, these claims will be dismissed.

IV. LEAVE TO AMEND

“[A] court ordinarily should not dismiss the complaint except after affording every

opportunity to the plaintiff to state a claim upon which relief might be granted.” Byrd v. Bates, 220

F.2d 480, 482 (5th Cir. 1955) (citation omitted). The Fifth Circuit has further stated:

In view of the consequences of dismissal on the complaint alone,

and the pull to decide cases on the merits rather than on the

sufficiency of pleadings, district courts often afford plaintiffs at least

one opportunity to cure pleading deficiencies before dismissing a

case, unless it is clear that the defects are incurable or the plaintiffs

advise the court that they are unwilling or unable to amend in a

manner that will avoid dismissal.

Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002).

One leading treatise has further explained:

As the numerous case[s] . . . make clear, dismissal under Rule

12(b)(6) generally is not immediately final or on the merits because

the district court normally will give the plaintiff leave to file an

amended complaint to see if the shortcomings of the original

document can be corrected. The federal rule policy of deciding cases

on the basis of the substantive rights involved rather than on

technicalities requires that the plaintiff be given every opportunity

to cure a formal defect in the pleading. This is true even when the

district judge doubts that the plaintiff will be able to overcome the

shortcomings in the initial pleading. Thus, the cases make it clear

that leave to amend the complaint should be refused only if it

appears to a certainty that the plaintiff cannot state a claim. A district

court's refusal to allow leave to amend is reviewed for abuse of

discretion by the court of appeals. A wise judicial practice (and one

that is commonly followed) would be to allow at least one

amendment regardless of how unpromising the initial pleading

appears because except in unusual circumstances it is unlikely that

the district court will be able to determine conclusively on the face

of a defective pleading whether the plaintiff actually can state a

claim for relief.

5B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2022).

Here, Plaintiff has not previously amended his complaint in response to a ruling from this

Court assessing the sufficiency of his claims. Thus, “the Court will act in accordance with the

‘wise judicial practice’ and general rule” and allow leave to amend. Jordan v. Gautreaux, 593 F.

Supp. 3d 330, 372–73 (M.D. La. 2022) (quoting Watkins, 515 F. Supp. 3d at 519 (citing JMCB,

LLC v. Bd. of Com. & Indus., 336 F. Supp. 3d 620, 641–42 (M.D. La. 2018) (deGravelles, J.))); see

also Murphy v. Bos. Sci. Corp., No. 18-31, 2018 WL 6046178, at *1 (M.D. La. Nov. 19, 2018)

(deGravelles, J.) (reaching same result (citing, inter alia, JMCB, supra)).

In closing, the Court notes that Defendants briefly attempt to dismiss any due process claim

to the extent Plaintiff sought to asserts it. (Doc. 56-1 at 11.) Defendants focused primarily on the

procedures of the ARPs and various hearings in which Plaintiff took part, and they then argue that

Plaintiff failed to plead non-conclusory allegations about the deficiencies of any appeal Plaintiff

may have taken. (Id.) Plaintiff does not respond to this argument, so, to the extent any such claim

was ever made, it has been waived. See Payton v. Town of Maringouin, No. 18-563, 2021 WL

2544416, at *26 (M.D. La. June 21, 2021) (deGravelles, J.) (collecting authorities on waiver), aff'd,

No. 21-30440, 2022 WL 3097846 (5th Cir. Aug. 3, 2022). Nevertheless, without expressing any

opinion on whether Plaintiff can adequately plead a due process violation, if Plaintiff intends to

assert same, he should clarify the allegations of his complaint and establish the claim’s viability.

See Hope, 861 F. App'x at 580–81 (affirming dismissal of due process claim based on indefinite

time in solitary confinement for Texas prisoner)

V. CONCLUSION

Accordingly,

IT IS ORDERED that Defendants’ Motion to Dismiss (Doc. 56) is GRANTED. All §

1983 claims by Plaintiff against Defendants are DISMISSED WITHOUT PREJUDICE.

Plaintiff will be given twenty-eight (28) days in which to amend the Complaint to cure any

deficiencies therein. Failure to do so will result in the dismissal of claims with prejudice and/or

judgment being entered against Plaintiff.

Signed in Baton Rouge, Louisiana, on March 22, 2023.

S

JUDGE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA