Smith v. Atkins

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

KECITE RENEE SMITH CIVIL ACTION

VERSUS NO. 24-2104

MAILROOM DEPUTY ATKINS, ET AL. SECTION: “J”(1)

REPORT AND RECOMMENDATION

Plaintiff, Kecite Renee Smith, a state pretrial detainee, filed this pro se federal civil action

pursuant to 42 U.S.C. § 1983. She asserted claims against the following defendants: Deputy

Atkins; Deputy King; Sergeant Mizzel; Officer Fonitno; Corporal Vanhaulen; Jacquelan

Davenport; and the Twenty-Second Judicial District Courthouse.

Federal law requires that this matter be screened. For example, with respect to actions,

such as this one, which are filed in forma pauperis, federal law mandates:

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, screening is also required by 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).1 Regarding such lawsuits, the statute similarly provides:

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 claim is frivolous “if it lacks an arguable basis in law or fact.” Reeves v. Collins, 27

F.3d 174, 176 (5th Cir. 1994). When making that determination, 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 claims whose

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) (footnote, citation, and quotation marks omitted).

1 “As used in this section, the term ‘prisoner’ means any person incarcerated or detained in any facility who is accused

of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions

of parole, probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915A(c).

For the following reasons, even when plaintiff’s complaint is liberally construed,2 her

federal civil rights claims should be dismissed as frivolous and/or failing to state a claim on which

relief may be granted.

As noted, plaintiff brought this lawsuit 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, except that in any

action brought against a judicial officer for an act or omission taken in such

officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory

decree was violated or declaratory relief was unavailable.

42 U.S.C. § 1983. Accordingly, “[t]o state a claim under § 1983, a plaintiff must allege the

violation of a right secured by the Constitution and laws of the United States, and must show that

the alleged deprivation was committed by a person acting under color of state law.” West v.

Atkins, 487 U.S. 42, 48 (1988).

Claims Against Deputies Atkins and King

Plaintiff alleges that, on two occasions, Deputies Atkins and King failed to give her

complete forms for filing a lawsuit pursuant to 42 U.S.C. § 1983 or for requesting pauper status.3

She further alleges that, as a result, the “Clerk’s Office of the United States District Court had to

send me a pauper Form and a front page of the 42 USC 1983 Form ….”4

Those allegations implicate the right of access to the courts. Inmates clearly have a

constitutional right of access to the courts, and that right extends to pretrial detainees. See United

2 The Court must liberally construe a pro se civil rights complaint. See Moore v. McDonald, 30 F.3d 616, 620 (5th

Cir. 1994).

3 Rec. Doc. 4, pp. 5-8.

4 Id. at p. 7.

States v. Moya-Gomez, 860 F.2d 706, 743 (7th Cir. 1988); Wetzel v. Strain, Civ. Action No. 09-

7048, 2010 WL 744993, at *3 (E.D. La. Feb. 26, 2010); Kirkpatrick v. Daugherty, Civil Action

No. 6:05cv461, 2006 WL 2401108, at *4 (E.D. Tex. Aug. 17, 2006). However, “[w]hile the

precise contours of a prisoner’s right of access to the courts remain somewhat obscure, the

Supreme Court has not extended this right to apply further than the ability of an inmate to prepare

and transmit a necessary legal document to a court.” Brewer v. Wilkinson, 3 F.3d 816, 820 (5th

Cir. 1993) (footnote omitted). For the following reasons, that limited right obviously has not been

violated here.

As an initial matter, the Court notes that it can hardly be said that plaintiff’s ability to

exercise her right of access to the courts has been unduly impeded. On the contrary, the records

of this Court reflect that she filed seven § 1983 lawsuits between July and August 2024.5 That

fact, in and of itself, seriously undercuts any suggestion that her ability to seek judicial relief has

been curtailed.

Secondly, and more specifically concerning her instant allegations, plaintiff suffered no

prejudice from the defendants’ purported actions. That alone is fatal to her access-to-courts claims,

because such a claim is cognizable only if the alleged deprivation resulted in actual prejudice to

her in her litigation. See, e.g., Chriceol v. Phillips, 169 F.3d 313, 317 (5th Cir. 1999) (“[A]n inmate

alleging denial of access to the courts must demonstrate an actual injury stemming from

defendants’ unconstitutional conduct.”); Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998);

McDonald v. Steward, 132 F.3d 225, 230-31 (5th Cir. 1998) (“[B]efore a prisoner may prevail on

a claim that his constitutional right of access to the courts was violated, he must demonstrate that

5 In addition to the instant lawsuit, she also filed: Smith v. Spinks, Civ. Action No. 24-1891; Smith v. Davenport, Civ.

Action No. 24-1892; Smith v. Davenport, Civ. Action No. 24-1997; Smith v. Fonitno, Civ. Action No. 24-1998; Smith

v. Davenport, Civ. Action No. 24-2073; and Smith v. Davenport, Civ. Action No. 24-2149.

his position as a litigant was prejudiced by his denial of access to the courts.” (quotation marks

omitted)); Walker v. Navarro County Jail, 4 F.3d 410, 413 (5th Cir. 1993).

Here, as plaintiff herself has acknowledged, on the two occasions that the defendants

allegedly failed to provide her with complete forms, she was nevertheless still able to file suit after

the missing forms or pages were provided to her by the Clerk of this Court. Accordingly, she

suffered no prejudice as a result of the defendants’ actions, and so her access-to-courts claims

should be dismissed. See Ford v. Foti, No. 94-30614, 1995 WL 241811, at *3 (5th Cir. Apr. 14,

1995) (although inmate was denied forms by jail officials, he was not prejudiced, and therefore

not denied access to the courts, because he could pursue relief in a timely manner after obtaining

the forms directly from the court); see also Petty v. Kelly, No. 02-41231, 2003 WL 21756716, at

*1 (5th Cir. June 24, 2003) (finding no access-to-courts violation where inmate “was able to file

the complaint that he sought to file”).

For these reasons, plaintiff’s claims against Deputies Atkins and King should be dismissed.

Claims Against Sergeant Mizzel

Plaintiff alleges that Sergeant Mizzel allowed inmate Jacquelan Davenport to serve as a

trustee delivering meals and commissary orders to plaintiff and other inmates.6 Plaintiff further

alleges that “Davenport have a Prea charge on me,”7 and she opines: “I feel like that is not fair to

still allow her to be in contact with me knowing that she placed a prea on me and the officers here

at St. Tammany Parish Jail is allowing it!”8 However, whether Davenport has been granted trustee

status simply is not plaintiff’s concern. Moreover, plaintiff has failed to allege any cognizable

harm she suffered as a result of Mizzel’s act of allowing Davenport to deliver meals and

6 Rec. Doc. 4, p. 8.

7 Id. PREA is an acronym for the Prison Rape Elimination Act. See 34 U.S.C. §§ 30301-09.

8 Rec. Doc. 4, p. 8.

commissary orders to plaintiff and other inmates. Therefore, the claim against Sergeant Mizzel

should be dismissed.

Claims Against Officer Fonitno and Corporal Vanhaulen

Plaintiff alleges that, on August 16, 2024, Officer Fonitno refused to provide her with

another food tray after she reported that her food “tasted spoiled.”9 She further alleges that, on

that occasion, Fonitno “had a very bad attitude,” “holler[ed]” at her, and “just really wasn’t quiet

[sic] professional.”10 Plaintiff also complains that Fonitno improperly allows an inmate named

“Maddy” to work as a trustee,11 and she suspects that Maddy “is doing something to my food.”12

Plaintiff similarly complains that Fonitno allows inmate Jacquelan Davenport and unspecified

other inmates to “do as they please, especially Frantinizing [sic] and coming in contact still with

me and allowing them to do things to my food ….”13 Lastly, plaintiff complains that Fonitno used

excessive force against inmate Johnice Tolyer and other unspecified inmates.14

With respect to the foregoing allegations, plaintiff also names Corporal Vanhaulen as a

defendant, noting that Vanhaulen is a supervisor on Fonitno’s shift and allows Fonitno to behave

in this manner.15

Plaintiff’s allegation that Fonitno refused to provide a replacement meal on one occasion,

even if true, simply does not rise to the level of a constitutional violation. As was explained in

another case in which a pretrial detainee complained of being deprived of a single meal:

The Constitution requires that inmates be provided well-balanced meals with

sufficient nutritional value to preserve health. See Berry v. Brady, 192 F.3d 504,

507 (5th Cir. 1999). However, the deprivation of food does not violate the

constitution unless “it denies a prisoner the minimal civilized measures of life’s

9 Id. at p. 9.

10 Id.

11 Id. at pp. 9-10.

12 Id. at p. 10.

13 Id.

14 Id. at pp. 11-14.

15 Id. at p. 14.

necessities.” Berry, 192 F.3d at 707 (quotation and citation omitted). It is well

settled that an inmate’s constitutional rights are not violated if he misses one or

even an occasional meal. Coleman v. Platt, 558 F. App’x 493, 494 (5th Cir. Mar.

21, 2014) (plaintiff’s claim that he missed only one meal did not rise to the level of

a cognizable constitutional injury) (citing Berry, 192 F.3d at 507, and Palmer v.

Johnson, 193 F.3d 346, 352 (5th Cir. 1999)); Talib [v. Gilley], 138 F.3d [211,] 214

n.3 ([5th Cir. 1998)] (“Missing a mere one of out every nine meals is hardly more

than missed by many working citizens over the same period”). Even on a regular,

permanent basis, having only two rather than three meals a day may be

constitutionally adequate. Green v. Ferrell, 801 F.2d 765, 770-71 (5th Cir. 1986).

[Plaintiff’s] claim that he missed a meal is frivolous and fails to state a claim for

which relief can be granted.

Aucoin v. Terrebonne Parish Sheriff’s Office, Civ. Action No. 21-110, 2021 WL 2080212, at *11

(E.D. La. Apr. 27, 2021), adopted, 2021 WL 2075405 (E.D. La. May 24, 2021), aff’d, No. 21-

30322, 2022 WL 16657429 (5th Cir. Nov. 3, 2022).

Likewise, even if, as alleged, Fonitno has a “bad attitude,” is unprofessional, or yells on

occasion, that, too, does not cross a constitutional line. See, e.g., Naquin v. Jack, Civ. Action No.

20-458, 2020 WL 8675909, at *12 (E.D. La. July 16, 2020) (“[P]laintiff cannot premise his § 1983

claim on alleged rude or disrespectful comments by prison personnel.”), adopted, 2021 WL

780750 (E.D. La. Mar. 1, 2021). While it is unseemly for jail officials to taunt or otherwise

verbally abuse inmates who have little or no ability to respond without subjecting themselves to a

disciplinary action (or worse), purely verbal abuse simply does not run afoul of any federal

constitutional protection. See, e.g., Orange v. Ellis, 348 F. App’x 69, 72 (5th Cir. 2009) (“[C]laims

of verbal harassment do not reveal a constitutional violation. Mere words are not sufficient to

support a Section 1983 claim.” (citation omitted)); 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.”);

Moody v. Lee, Civ. Action No. 13-2745, 2014 WL 107944, at *5 (W.D. La. Jan. 9, 2014)

(“[V]erbal threats or taunts, without more, do not support a claimed constitutional violation.

Allegations of mere verbal abuse by prison guards simply do not give rise to a cause of action

under § 1983. Plaintiff's claim to the contrary ... lacks an arguable basis in law and fact and must

... be dismissed as frivolous.” (citations omitted)).

To the extent that plaintiff is complaining that Fonitno allows Maddy to serve as a jail

trustee and allows other inmates to “do as they please,” the manner in which Fonitno performs his

duties with respect to other inmates is, once again, not plaintiff’s concern. And that remains true

despite plaintiff’s suggestion that Fonitno’s purportedly lackadaisical attitude toward maintaining

order has resulted in the other inmates being able to tamper with her food, because that allegation

of tampering is nothing more than mere suspicion and speculation which, alone, are insufficient to

support a plausible claim. See, e.g., United States ex rel. Steury v. Cardinal Health, Inc., 625 F.3d

262, 266 (5th Cir. 2010) (to state a claim, “[t]he plaintiff’s factual allegations must support a claim

to relief that is plausible on its face and rises above mere speculation”).

Lastly, to the extent that plaintiff is alleging that Fonitno used excessive force against other

inmates, she does not have standing to assert a claim on behalf of another inmate. See, e.g.,

Gregory v. McKennon, 430 F. App’x 306, 310 (5th Cir. 2011); Morrison v. Gusman, Civ. Action

No. 10-217, 2010 WL 724173, at *4 (E.D. La. Feb. 22, 2010); Diggs v. Nelson Coleman Corr.

Ctr., Civ. Action No. 10-97, 2010 WL 1038229, at *7 (E.D. La. Feb. 17, 2010), adopted, 2010 WL

1038230 (E.D. La. Mar. 17, 2010); Scheanette v. Riggins, No. Civ. A. 9:05CV34, 2006 WL

722212, at *9 (E.D. Tex. Mar. 15, 2006).

As to Corporal Vanhaulen, plaintiff is suing him solely because Vanhaulen is a supervisor

on Fonitno’s shift and allows Fonitno to behave in the foregoing manner. That is not actionable

for two reasons.

First, to the extent that plaintiff is suing Vanhaulen based merely on his supervisory

position, that is not allowed in a § 1983 action. “It is black-letter law … that § 1983 does not

create respondeat superior liability.” McNeal v. LeBlanc, 90 F.4th 425, 431 (5th Cir. 2024);

accord Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (“In a § 1983 suit ... – where masters do not

answer for the torts of their servants – the term ‘supervisory liability’ is a misnomer. Absent

vicarious liability, each Government official, his or her title notwithstanding, is only liable for his

or her own misconduct.”); Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987) (“Under section

1983, supervisory officials are not liable for the actions of subordinates on any theory of vicarious

liability.”).

Second, even if plaintiff’s complaint is broadly construed as asserting a failure-to-

intervene/bystander liability claim against Vanhaulen based on his purported inaction,16 that, too,

fails because, as already noted, plaintiff has not stated a plausible underlying claim against Fonitno.

Without an underlying violation by Fonitno, there is simply no basis for such a claim against

Vanhaulen. See, e.g., Espinal v. City of Houston, 96 F.4th 741, 745 n.4 (5th Cir. 2024)

(“[B]ystander liability would be predicated on an underlying constitutional violation. Because we

conclude [plaintiff] has failed to allege any violation of his constitutional rights by anyone, his

bystander claims … necessarily fail.” (citation omitted)); Reynolds v. Wood County, No. 22-

16 Regarding such claims, the United States Fifth Circuit Court of Appeals has held:

“An officer is liable for failure to intervene when that officer: (1) knew a fellow officer was violating

an individual’s constitutional rights, (2) was present at the scene of the constitutional violation, (3)

had a reasonable opportunity to prevent the harm but nevertheless, (4) chose not to act.” Joseph [ex

rel. Estate of Joseph v. Bartlett], 981 F.3d [319,] 343 [5th Cir. 2020)]. We have held that officers

have a reasonable opportunity to intervene if they are present at the scene and that they violate their

duty to intervene if their conduct demonstrates they acquiesced to the unconstitutional conduct

engaged in by others. Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995). Hale is clearly established

law that provides fair notice to officers of their duty to intervene, rather than to acquiesce, in the

unconstitutional conduct of others. See Timpa [ v. Dillard], 20 F.4th [1020,] 1039 [(5th Cir. 2021)]

(applying Hale to bystander claims).

Austin v. City of Pasadena, 74 F.4th 312, 331 (5th Cir. 2023).

40381, 2023 WL 3175467, at *4 (5th Cir. May 1, 2023); Cano v. Faust, No. 22-20189, 2023 WL

2521869, at *2 (5th Cir. Mar. 14, 2023).

For all of these reasons, plaintiff’s claims against Officer Fonitno and Corporal Vanhaulen

should be dismissed.

Claims Against Jacquelan Davenport

Plaintiff has also separately named Jacquelan Davenport, one of the inmates referenced

supra, as a defendant in this civil action. However, an inmate is not a proper defendant in a § 1983

action. On the contrary, “[n]umerous cases have held that an inmate is not a state actor or a person

acting under the color of state law for purposes of stating a claim under § 1983.” Goodell v.

Anthony, 157 F. Supp. 2d 796, 801 (E.D. Mich. 2001); accord Naquin v. Jack, Civ. Action No.

20-548, 2020 WL 8675909, at *8 (E.D. La. July 16, 2020), adopted, 2021 WL 780750 (E.D. La.

Mar. 1, 2021). That is true even with respect to inmates serving as jail trustees. See, e.g., Simon

v. Larpenter, Civ. Action No. 20-1854, 2020 WL 9349528, at *6 (E.D. La. Nov. 10, 2020)

(“Because Simon fails to allege facts establishing that the inmate trusty workers are state actors,

his § 1983 claims against them have no basis in federal law, and are therefore frivolous.”), adopted,

2021 WL 1614813 (E.D. La. Apr. 26, 2021).

Of course, it is true that a private individual, such as an inmate, can be held liable under §

1983 for engaging in a conspiracy with state actors. See Mills v. Criminal District Court # 3, 837

F.2d 677, 679 (5th Cir. 1988); see also Mowbray v. Cameron County, 274 F.3d 269, 278 (5th Cir.

2001) (“[I]t is possible, in limited circumstances, to allege a § 1983 conspiracy claim against a

private actor....”). Here, however, plaintiff does not expressly allege that Davenport conspired

with one or more jail officials to harm her. Further, even if plaintiff’s complaint were broadly

construed as containing an implicit allegation of that nature, her claim would still fail because

conclusory allegations of conspiracy simply will not suffice. Priester v. Lowndes County, 354

F.3d 414, 423 n.9 (5th Cir. 2004) (“The allegation of a conspiracy between private and state actors

requires more than conclusory statements.”); Lafleur v. City of Westwego, Civ. Action No. 10-

363, 2011 WL 802612, at *4 (E.D. La. Feb. 28, 2011).

For these reasons, plaintiff’s claims against Davenport should be dismissed.

Claims Against the Twenty-Second Judicial District Courthouse

Lastly, making numerous allegations concerning the St. Tammany Parish criminal justice

system,17 plaintiff has named the Twenty-Second Judicial District Courthouse as a defendant.

However, that is clearly improper, because “a courthouse is not a ‘person’ subject to suit under §

1983.” Elmore v. Mecklenburg County Courthouse, Civ. Action No. 3:23-cv-00036, 2023 WL

5539023, at *2 (W.D.N.C. Aug. 28, 2023), aff’d, No. 23-6953, 2023 WL 8728588 (4th Cir. Dec.

19, 2023); accord Griffin v. Corporation Counsel, No. 22-CV-8521, 2022 WL 16926117, at *4

(S.D.N.Y. Nov. 14, 2022) (“The New York County Courthouse is not a ‘person’ within the

meaning of Section 1983.”); Smalls v. Maryland, No. 22-CV-01095, 2022 WL 16839044, at *3

(D. Md. Nov. 9, 2022) (“[T]he Prince George’s County Circuit Courthouse is not a ‘person’ subject

to suit under 42 U.S.C. § 1983 ….”); Szpila v. Elliott, No. 21-2304, 2022 WL 1050508, at *2 (C.D.

Ill. Apr. 7, 2022) (“Plaintiff cannot sue the Kankakee County Courthouse because it is a building

and not a person capable of being sued pursuant to 42 U.S.C. § 1983.”); Ladd v. Clarence Mitchell

Courthouse, No. CV CCB-20-0491, 2020 WL 6322606, at *2 (D. Md. Oct. 28, 2020) (holding that

a courthouse it is not subject to suit under § 1983 because “[i]nanimate objects such as buildings

… do not act under color of state law and are not ‘person[s]’ subject to suit under § 1983”).

17 Re. Doc. 4, pp. 14-18.

Accordingly, plaintiff’s claims against the Twenty-Second Judicial District Courthouse should be

dismissed.

Furthermore, it is unnecessary to allow plaintiff an opportunity to amend her complaint to

name another defendant with respect to her underlying allegations, because a proper defendant

simply does not exist for the following reasons.

For example, plaintiff cannot sue the Louisiana Twenty-Second Judicial District Court

itself, because a state court likewise is not a “person” or a juridical entity capable of being sued

under 42 U.S.C. § 1983. Moity v. Louisiana State Bar Association, 414 F. Supp. 180, 182 (E.D.

La.) (“[S]tate courts are not considered ‘persons’ within the meaning of § 1983.”), aff’d, 537 F.2d

1141 (5th Cir. 1976); Dunn v. Louisiana, Civ. Action No. 10-4519, 2011 WL 446651, at *3 (E.D.

La. Jan. 20, 2011), adopted, 2011 WL 445684 (E.D. La. Feb. 3, 2011); Thompson v. St. Bernard

Parish Court, Civ. Action No. 09-4465, 2010 WL 110797, at *3 (E.D. La. Jan. 11, 2010); Stewart

v. Criminal District Court of Louisiana, Civ. Action No. 08-3731, 2008 WL 4758610, at *2 (E.D.

La. Oct. 30, 2008); Knight v. Guste, Civ. Action No. 07-1124, 2007 WL 1248039, at *3 (E.D. La.

Apr. 27, 2007).

She also cannot sue the individual judges of that court for their judicial actions, because

“judicial officers enjoy absolute immunity from liability for damages for acts performed in the

exercise of their judicial functions.” Krueger v. Reimer, 66 F.3d 75, 77 (5th Cir. 1995); accord

Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351 (1871) (“[J]udges of courts of superior or general

jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess

of their jurisdiction, and are alleged to have been done maliciously or corruptly.”); Harper v.

Merckle, 638 F.2d 848, 856 n.9 (5th Cir. 1981) (“[W]e can envision no situation – where a judge

acts after he is approached qua judge by parties to a case – that could possibly spawn a successful

§ 1983 suit.”).

Similarly, she cannot sue the prosecutors, because they, too, are absolutely immune for the

actions they take as advocates for the state. The United States Fifth Circuit Court of Appeals has

explained:

A prosecutor is absolutely immune for initiating and pursuing a criminal

prosecution, for actions taken in her role as advocate for the state in the courts, or

when her conduct is intimately associated with the judicial phase of the criminal

process. …

… Our decisions applying those of the Supreme Court make clear that

prosecutors enjoy absolute immunity for acts taken to initiate prosecution, and that

this absolute immunity shelters prosecutors even when they act maliciously,

wantonly or negligently.

Loupe v. O’Bannon, 824 F.3d 534, 539 (5th Cir. 2016) (citations, quotation marks, and brackets

omitted).

It must also be noted that such absolute prosecutorial immunity is sweepingly broad.

“[T]he Fifth Circuit has held prosecutors absolutely immune for actions ranging from withholding

exculpatory evidence, disobeying discovery orders, and fabricating evidence, to charging without

probable cause pursuant to a constitutionally deficient indictment, and committing prosecutorial

misconduct.” Willis v. Bastrop County, No. A-18-CV-0093, 2019 WL 252051, at *5 (W.D. La.

Jan. 17, 2019) (citing Green v. Texas Government, 704 F. App’x 386, 386-87 (5th Cir. 2017)),

adopted, 2019 WL 2572538 (W.D. Tex. Feb. 11, 2019). Accordingly, where a plaintiff is

challenging a prosecutor’s actions “intimately associated with the judicial phase of the criminal

process,” her claims must fail because the prosecutor’s actions are ones to which “absolute

immunity appl[ies] with full force.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976).

And although plaintiff makes allegations even against the public defenders, they cannot be

held liable under § 1983, because “a public defender does not act under color of state law when

performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.”

Polk County v. Dodson, 454 U.S. 312, 325 (1981); accord Hudson v. Hughes, 98 F.3d 868, 873

(Sth Cir. 1996) (“Hudson’s claims against Hughes for ineffective assistance is not cognizable in

this section 1983 action because his attorney is not a state actor.”); see also O’Brien v. Colbath,

465 F.2d 358, 359 (Sth Cir. 1972) (“[I]n our opinion [§ 1983] was never intended as a vehicle for

prosecuting malpractice suits against court-appointed attorneys.”).

RECOMMENDATION

It is therefore RECOMMENDED that plaintiffs federal civil rights claims be

DISMISSED WITH PREJUDICE as frivolous and/or for failure to state a claim on which relief

may be granted.

A party’s failure to file written objections to the proposed findings, conclusions, and

recommendation in a magistrate judge’s report and recommendation within fourteen (14) days

after being served with a copy shall bar that party, except upon grounds of plain error, from

attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by

the district court, provided that the party has been served with notice that such consequences will

result from a failure to object. 28 U.S.C. § 636(b)(1); Douglass v. United Services Auto. Ass’n,

79 F.3d 1415, 1430 (Sth Cir. 1996) (en banc).

New Orleans, Louisiana, this 4th day of October, 2024.

C Vaw _/* log, vol J

JANIS VAN MEERVELD

UNITED STATES MAGISTRATE JUDGE

14