Simmons v. Bennett

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

MONROE DIVISION

WESTLEY CHAD-GRANT SIMMONS, SR. CIVIL ACTION NO. 25-0098

SECTION P

VS.

JUDGE TERRY A. DOUGHTY

WILLIAM BENNETT, ET AL. MAG. JUDGE KAYLA D. MCCLUSKY

REPORT AND RECOMMENDATION

Plaintiff Westley Chad-Grant Simmons, Sr., a prisoner at Caldwell Correctional Center

("CCC") proceeding pro se and in forma pauperis, filed this proceeding on approximately

January 27, 2025, under 42 U.S.C. § 1983. He names the following defendants: Sheriff William

'Clay' Bennett, Chief Deputy Jack McKeithen, Warden Kevin Wyles, Deputy Warden David

Callender, Major Josh Frederick, Lieutenant Mayes,1 and Lieutenant Trenchell.2

For reasons that follow, the Court should stay Plaintiff's claim that Lieutenant Mayes

used excessive force when she choked him, dug her nails into his neck, and placed her knee and

weight on his pelvis and "private area." The Court should retain Plaintiff's claims that Lieutenant

Trenchell tazed him, that Lieutenant Mayes tazed him, and that Major Frederick tripped and

tazed him. The Court should dismiss Plaintiff's remaining claims, including his official capacity

claims against Defendants Frederick, Mayes, and Frederick, and his requests to prosecute, and

terminate the employment of, Mayes and Frederick.

1 Plaintiff also refers to Lieutenant Mayes as "Ms. Mayes." [doc. # 1, p. 12].

2 This matter has been referred to the undersigned for review, report, and recommendation under

28 U.S.C. § 636, and the standing orders of the Court.

Background

Plaintiff claims that on either November 9 or 10, 2024, Lieutenant Trenchell "tazed" him

even though he was "fully compl[iant] with both hands on [a] wall" and facing the wall. [doc. #

13, p. 2]. After Trenchell's use of force, Plaintiff was placed in a restraint chair. Id.

Plaintiff claims that approximately 2.5 hours later, at approximately 9:10 a.m., while he

was fully chained in the restraint chair, Lieutenant Mayes entered his holding cell and shocked

him with a tazer. [doc. # 13, p. 2]. He claims that when he asked to speak with a higher-ranking

officer, Lieutenant Mayes attacked him with excessive force, choking him with both of her hands

until he was unable to breathe, digging her nails into his neck, and placing her knee and weight

on his pelvis and "private area." [doc. #s 1, pp. 4, 5, 13, 20; 6, p. 2]. Plaintiff states that he had

to grab Mayes' leg and throw her off him to avoid dying, being choked unconscious, or having a

heart attack or stroke due to his high blood pressure. Id. at 13. He maintains that he never posed

a threat because he was fully restrained in the restraint chair and complied with orders. [doc. #

13, p. 3].

Plaintiff alleges that after the use of force, Mayes falsely charged him with a "sex

charge," alleging that Plaintiff touched her inappropriately during the incident above. [doc. # 1,

p. 13]. The charge is pending. [doc. # 13, p. 5].

Plaintiff states that on November 13, 2024, at approximately 12:40 p.m., Major Frederick

utilized excessive force for no reason, tripping him while he was walking with both hands behind

his back and "in full compliance" and then shocking him with a "stun gun" or "tazer" nine times

in his back while he was "flat down on [his] stomach with both hands behind [his] back with

[his] legs cross[ed]." [doc. #s 1, pp. 4, 5, 13, 19; 6, p. 3].

Plaintiff claims that at approximately 1:10 p.m. the same day, in "booking," Major

Frederick tripped him again and shocked him nine more times with the stun gun even though

Plaintiff was "in full compliance." [doc. # 1, pp. 4, 5, 19]. Frederick allegedly ignored Plaintiff

when he begged for mercy and told Frederick that he had high blood pressure. Id. at 14.

Ignoring Plaintiff's screams for help, Frederick allegedly told Plaintiff, "this is how we do it in

the hills." Id. Frederick caused Plaintiff to fall and chip two of his teeth. Id. at 13. Plaintiff also

suffered a damaged back muscle, nerve damage in his neck and back, and burn marks from the

tazer. [doc. #s 1, p. 15; 13, p. 4].

Plaintiff claims that after Frederick's uses of force, Frederick placed him in a holding cell

until November 15, 2024, where he lacked a mattress, a sheet, and a blanket. [doc. # 13, pp. 4-

5]. On November 15, 2024, Frederick brought Plaintiff a medical mattress. Id.

In his initial pleading, Plaintiff claims that Sheriff Bennett was deliberately indifferent to

his "serious mental help 'medical needs.' [sic]." [doc. # 1, p. 17]. He also alleged that Chief

Deputy McKeithen and Warden Wyles were deliberately indifferent to his serious medical needs.

Id. at 17-18. In an amended pleading, Plaintiff alleges that he had to wait 89 days (from

November 13, 2024, to February 10, 2025) to receive medical care for his neck, back, trauma,

and anxiety. [doc. # 13, pp. 5-6]. To date, he has not received an appointment with a dentist or a

psychologist. Id. at 6.

Plaintiff claims that Sheriff Bennett, Chief Deputy McKeithen, Warden Wyles, and

Deputy Warden Callender "never investigated" or considered his grievance. [doc. # 1, pp. 15-

16]. He similarly alleges that Deputy Warden Callender and Sheriff Bennett failed to answer his

grievances. Id. at 16, 17, 18.

Plaintiff claims that Sheriff Bennett, Chief Deputy McKeithen, and Warden Wyles failed

to discipline staff members involved in the uses of force described above. [doc. # 1, pp. 17-18].

For relief, Plaintiff seeks punitive damages, compensatory damages, the termination of

Defendants Mayes' and Frederick's employment, and the prosecution of Mayes and Frederick.

[doc. # 1, p. 5].

Law and Analysis

1. Preliminary Screening

Plaintiff is a prisoner who has been permitted to proceed in forma pauperis. As a

prisoner seeking redress from an officer or employee of a governmental entity, his complaint is

subject to preliminary screening pursuant to 28 U.S.C. § 1915A.3 See Martin v. Scott, 156 F.3d

578, 579-80 (5th Cir. 1998) (per curiam). Because he is proceeding in forma pauperis, his

Complaint is also subject to screening under § 1915(e)(2). Both § 1915(e)(2)(B) and § 1915A(b)

provide for sua sponte dismissal of the complaint, or any portion thereof, if the Court finds it is

frivolous or malicious, if it fails to state a claim on which relief may be granted, or if it seeks

monetary relief against a defendant who is immune from such relief.

A complaint is frivolous when it “lacks an arguable basis either in law or in fact.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is

“based on an indisputably meritless legal theory.” Id. at 327. Courts are also afforded the

unusual power to pierce the veil of the factual allegations and dismiss those claims whose factual

contentions are clearly baseless. Id.

3 Under 28 U.S.C. § 1915(h), “‘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.”

A complaint fails to state a claim on which relief may be granted when it fails to plead

“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007); accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is

facially plausible when it contains sufficient factual content for the court “to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing

Twombly, 550 U.S. at 570). Plausibility does not equate to possibility or probability; it lies

somewhere in between. Id. Plausibility simply calls for enough factual allegations to raise a

reasonable expectation that discovery will reveal evidence to support the elements of the claim.

Twombly, 550 U.S. at 556.

Assessing whether a complaint states a plausible claim for relief is a “context-specific

task that requires the reviewing court to draw on its judicial experience and common sense.”

Iqbal, supra. A well-pled complaint may proceed even if it strikes the court that actual proof of

the asserted facts is improbable and that recovery is unlikely. Twombly, supra.

In making this determination, the court must assume that all of the plaintiff’s factual

allegations are true. Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998). However, the

same presumption does not extend to legal conclusions. Iqbal, supra. A pleading comprised of

“labels and conclusions” or “a formulaic recitation of the elements of a cause of action” does not

satisfy Rule 8. Id. A complaint fails to state a claim where its factual allegations do not “raise a

right to relief above the speculative level.” Montoya v. FedEx Ground Package Sys., Inc., 614

F.3d 145, 148 (5th Cir. 2010) (quoting Twombly, 550 U.S. at 555). “[U]nadorned, the-defendant

unlawfully-harmed-me accusation[s]” will not suffice. Iqbal, 556 U.S. at 677.

“[P]laintiffs must allege facts that support the elements of the cause of action in order to

make out a valid claim.” City of Clinton, Ark. v. Pilgrim’s Pride Corp, 632 F.3d 148, 152-53

(5th Cir. 2010). Courts are “not free to speculate that the plaintiff ‘might’ be able to state a claim

if given yet another opportunity to add more facts to the complaint.” Macias v. Raul A.

(Unknown) Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994).

A hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926

F.2d 480, 483 n.4 (5th Cir. 1991). A district court may dismiss a prisoner’s civil rights

complaint as frivolous based upon the complaint and exhibits alone. Green v. McKaskle, 788

F.2d 1116, 1120 (5th Cir. 1986).

“To state a section 1983 claim, a plaintiff must (1) allege a violation of a right secured by

the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was

committed by a person acting under color of state law.” Whitley v. Hanna, 726 F.3d 631, 638

(5th Cir. 2013) (internal quotation marks omitted). Consistent with the standard above, a

“[S]ection 1983 complaint must state specific facts, not simply legal and constitutional

conclusions.” Fee v. Herndon, 900 F.2d 804, 807 (5th Cir. 1990).

2. Heck v. Humphrey and Wallace v. Kato

Plaintiff claims that when he was fully restrained in a restraint chair, Lieutenant Mayes

choked him with both of her hands until he was unable to breathe, dug her nails into his neck,

and placed her knee and weight on his pelvis and "private area." [doc. #s 1, pp. 4, 5, 13, 20; 6, p.

2]. He states that he had to grab Mayes' leg and throw her off him to avoid dying, being choked

unconscious, or having a heart attack or stroke due to his high blood pressure. Id. at 13. He

maintains that he never posed a threat because he was fully restrained and complied with the

correctional officers. [doc. # 13, p. 3].

Plaintiff alleges that after the use of force, Mayes falsely charged him with a "sex

charge." [doc. # 1, p. 13]. In a Disciplinary Report that Plaintiff attaches to his pleading, Mayes

reported that after Plaintiff escaped his restraints, she tried to "place him back in the restraints[,]"

but he "started fighting" so she placed her forearm on his chest and pushed him back to make

him sit still. [doc. # 1-2, p. 18]. Mayes stated that Plaintiff then reached around her thigh and

grabbed her vagina and thigh with his right hand. Id. Plaintiff was arrested and charged with

sexual battery; his charge remains pending.4

If Plaintiff is convicted of his pending sexual battery charge, he may not be entitled to

seek relief for the excessive force claims above until any conviction is reversed, expunged,

declared invalid, or called into question by a federal court’s issuance of a writ of habeas corpus.

A successful civil rights action that would necessarily imply the invalidity of the plaintiff’s

conviction or sentence must be dismissed unless the plaintiff first shows that the conviction or

sentence has been reversed, expunged, declared invalid, or called into question by a federal

court’s issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477 (1994).

While the rule in Heck does not extend to pending criminal matters, successful claims

under Plaintiff’s allegations could necessarily imply the invalidity of any future conviction.5 See

Wallace v. Kato, 549 U.S. 384, 393-94 (2007) (finding that the Heck rule applies only when

there has been a conviction or sentence that has not been invalidated, not to pending criminal

charges).

To explain, Plaintiff suggests that he did nothing wrong: that he did not pose a threat, that

he was compliant, that he was fully restrained, that he was defending himself, and that he

4 TELEPHONE CALL TO CALDWELL PARISH DISTRICT ATTORNEY, (April 11, 2025); [doc. # 13, p.

5].

5 A successful claim will not necessarily imply the invalidity of a conviction “if the factual basis

for the conviction is temporally and conceptually distinct from” the claim. Bush v. Strain, 513

F.3d 492, 498 (5th Cir. 2008).

therefore did not commit the crime with which he is charged. He maintains that he did not

sexually batter Defendant Mayes; rather, he grabbed her leg to throw her off him and avoid

dying, being choked unconscious, or having a heart attack or stroke due to his high blood

pressure.

In Louisiana, "Sexual battery is the intentional touching of the anus or genitals of the

victim by the offender using any instrumentality or any part of the body of the offender, directly

or through clothing, or the touching of the anus or genitals of the offender by the victim using

any instrumentality or any part of the body of the victim, directly or through clothing, when any

of the following occur: (1) The offender acts without the consent of the victim." LA. REV. STAT.

§ 14:43.1 (emphasis added). If this Court held that Mayes used excessive force, it would (1) lend

credence to Plaintiff's contention that he only intended to grab Mayes' leg and remove her from

his person to defend himself from excessive force and (2) thereby 'imply' that Plaintiff did not

intend to touch the "genitals of the victim" and did not, consequently, commit a sexual battery.

See DeLeon v. City of Corpus Christi, 488 F.3d 649, 656 (5th Cir. 2007) (finding that because

the plaintiff claimed he did nothing wrong, his excessive force claim was barred by Heck; the

claim would necessarily imply the invalidity of his conviction of aggravated assault on an

officer). Otherwise stated, prevailing on the excessive force claims above could constitute a

collateral attack on the validity of a future conviction.

Successful excessive force claims could imply the invalidity of a future conviction for

another reason. Under LA. REV. STAT. § 14:18(7): “The fact that an offender’s conduct is

justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime

based on that conduct. This defense of justification can be claimed . . . [w]hen the offender’s

conduct is in defense of persons or of property under any of the circumstances described in

Articles 19 through 22.” Under Article 19, “The use of force or violence upon the person of

another is justifiable . . . [w]hen committed for the purpose of preventing a forcible offense

against the person . . . , provided that the force or violence used must be reasonable and

apparently necessary to prevent such offense.” LA. REV. STAT. § 14:19(A)(1)(a). Here, if

Plaintiff proved that Mayes used excessive force before he attempted to grab her to throw her off

him, he would essentially prove that even if he did intend to touch the "genitals of the victim[,]"

his actions following the excessive force amounted to justifiable self-defense, thus undermining

a potential conviction.6 See generally Stave v. Morrison, 45,620, 55 So. 3d 856, 864 (La. App. 2

Cir. 11/24/10) (observing that the "defense of justification can be claimed when any crime,

except murder, is committed through the compulsion of threats by another of death or great

bodily harm" and analyzing whether the criminal defendant's oral battery and rape were

justified).

Federal courts should stay civil rights claims that attack the legality of a detainee’s arrest,

prosecution, and detention until the allegedly improper state prosecution concludes. See Kato,

549 U.S. at 393-94. Critically, “If a plaintiff files a false-arrest claim before he has been

convicted (or files any other claim related to rulings that will likely be made in a pending or

6 In Hudson v. Hughes, 98 F.3d 868, 872 (5th Cir. 1996), the Fifth Circuit held that a Louisiana

conviction for battery of an officer—a crime for which justification is an affirmative defense—

prevented the plaintiff from suing for excessive force in connection with the incident. The court

reasoned that “if the plaintiff proved his excessive force claim, he would essentially be proving

that his battery was justified, which would undermine his conviction.” Arnold v. Town of

Slaughter, 100 F. App’x 321, 323 (5th Cir. 2004) (discussing Hudson). Similarly, in Arnold, 100

F. App’x at 323, the court reasoned: “[C]ertain convictions will prevent a plaintiff from bringing

an excessive force claim. For example, we have held that a Texas conviction for aggravated

assault on a police officer bars claims for excessive force related to the same conduct. . . . Texas

law permits an officer to use any force-even deadly force-to protect against an aggravated

assault. Sappington, 195 F.3d at 237. Because any force was justified in response to an assault,

a finding that the officers used excessive force would necessarily mean that the plaintiff had not

committed aggravated assault.”

anticipated criminal trial), it is within the power of the district court . . . to stay the civil action

until the criminal case . . . is ended.” Id. (emphasis added); see Mackey v. Dickson, 47 F.3d 744,

746 (5th Cir. 1995) (opining that courts should stay proceedings “until the pending criminal case

has run its course . . . .”).

Here, Plaintiff’s excessive force claims (i.e., that Mayes choked him, dug her nails into

his neck, and placed her knee and weight on his pelvis and "private area") are at least related to

rulings that will likely be made concerning his pending charge.7 Accordingly, the Court should

stay these claims pending the outcome of Plaintiff’s ongoing criminal prosecution.8

3. Excessive Force

As above, Plaintiff claims that on either November 9 or 10, 2024, Lieutenant Trenchell

"tazed" him even though he was "fully compl[iant] with both hands on [a] wall" and facing the

wall. [doc. # 13, p. 2].

Plaintiff next claims that approximately 2.5 hours later, at approximately 9:10 a.m., while

he was fully chained in the restraint chair, Lieutenant Mayes shocked him with a tazer. [doc. #

13, p. 2].

Plaintiff claims that on November 13, 2024, Major Frederick utilized excessive force for

no reason, tripping him while he was walking with both hands behind his back and "in full

7 Plaintiff's claim that Mayes tazed him is temporally distinct from his pending criminal charge

and should not be stayed. The undersigned discusses that claim below.

8 See Mackey, 47 F.3d at 746 (“At this point it is simply premature to determine whether or not

Mackey’s damage claims are barred under Heck. . . . The court [should] stay proceedings in

the section 1983 case until the pending criminal case has run its course, as until that time it may

be difficult to determine the relation, if any, between the two.”); Davis v. Zain, 79 F.3d 18, 19

(5th Cir. 1996) (“[I]f some presently unforeseen or unarticulated conflict arises between the

criminal retrial and the pending § 1983 case, the district court may consider the propriety of a

stay . . . .”).

compliance" and then shocking him with a "stun gun" or "tazer" nine times in his back while he

was "flat down on [his] stomach with both hands behind [his] back with [his] legs cross[ed]."

[doc. #s 1, pp. 4, 5, 13, 19; 6, p. 3]. He claims later the same day, Major Frederick tripped him

again and shocked him nine more times with the stun gun even though he was "in full

compliance." [doc. # 1, pp. 4, 5, 19]. Frederick allegedly ignored Plaintiff when he begged for

mercy and told Frederick that he had high blood pressure. Id. at 14. Ignoring Plaintiff's screams

for help, Frederick allegedly told Plaintiff, "this is how we do it in the hills." Id. Frederick

caused Plaintiff to fall and chip two of his teeth. Id. at 13. Plaintiff also suffered a damaged

back muscle, nerve damage in his neck and back, and burn marks from the tazer. [doc. #s 1, p.

15; 6, p. 4].

When a prison official is accused of using excessive physical force in contravention of

the Eighth Amendment’s Cruel and Unusual Punishments Clause, the core inquiry is “whether

force was applied in a good-faith effort to maintain or restore discipline, or maliciously and

sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6 (1992) (citing Whitley v. Albers,

475 U.S. 312, 320-21 (1986)). “Force beyond that reasonably required to maintain or restore

discipline is ‘wanton and unnecessary.’” Perez v. Collier, 2021 WL 4095263, at *2 (5th Cir.

Sept. 8, 2021) (quoting Hudson, 503 U.S. at 7). “This standard looks to an official’s subjective

intent to punish.” Id.

However, not every malevolent touch by a prison guard gives rise to a federal cause of

action. Hudson, 503 U.S. at 9. The Eighth Amendment does not protect against “de minimis”

use of physical force, so long as the use of force is not of a sort “repugnant to the conscience of

mankind.” Id. (citation and internal quotation marks omitted). Courts consider the following

factors: (1) the extent of the injury suffered; (2) the need for application of force; (3) the

relationship between that need and the amount of force used; (4) the threat reasonably perceived

by the responsible officials; and (5) any effort made to temper the severity of a forceful response.

Gomez v. Chandler, 163 F.3d 921, 923 (5th Cir. 1999).

Here, the Court should retain these excessive force claims against Lieutenant Trenchell,

Lieutenant Mayes, and Major Frederick. Plaintiff alleges that he suffered greater-than-de

minimis injuries, that the defendants had no need to apply force, that he did not pose a threat, and

that defendants made no effort to temper their uses of force.

4. Conditions of Confinement

Plaintiff claims that after Frederick's uses of force on November 13, 2024, Frederick

placed him in a holding cell until November 15, 2024, where he lacked a mattress, a sheet, and a

blanket. [doc. # 13, pp. 4-5]. On November 15, 2024, Frederick brought Plaintiff a medical

mattress. Id.

“While the Constitution does not require that custodial inmates be housed in comfortable

prisons, the Eighth Amendment's prohibition against cruel and unusual punishment does require

that prisoners be afforded ‘humane conditions of confinement’ and prison officials are to ensure

that inmates receive adequate food, shelter, clothing, and medical care.” Herman v. Holiday, 238

F.3d 660, 664 (5th Cir. 2001) (quoting Farmer v. Brennan, 511 U.S. 825 (1994)). To establish

an Eighth Amendment violation, a prisoner must demonstrate that a prison official was

deliberately indifferent to conditions that resulted in the “extreme deprivation[,]” Shannon v.

Vannoy, 682 F. App’x 283, 285 (5th Cir. 2017), of the “minimal civilized measure of life’s

necessities.”9 Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008). To establish

9 The deprivation alleged must be, objectively, sufficiently serious. Farmer, 511 U.S. at 834.

This standard is not static: the inquiry is whether the conditions are contrary to “the evolving

deliberate indifference, the prisoner must show that the official knew of and disregarded an

excessive risk to inmate health or safety; the official must have been both aware of facts from the

inference could be drawn that a substantial risk of serious harm exists, and he must have drawn

the inference. Farmer, 511 U.S. at 837.

“Some conditions of confinement may establish an Eighth Amendment violation in

combination when each would not do so alone, but only when they have a mutually enforcing

effect that produces the deprivation of a single, identifiable human need such as food, warmth, or

exercise—for example, a low cell temperature at night combined with a failure to issue

blankets.” Wilson v. Seiter, 501 U.S. 294, 304 (1991) (internal quotation marks and quoted

source omitted).10 However, “Nothing so amorphous as ‘overall conditions’ can rise to the level

of cruel and unusual punishment when no specific deprivation of a single human need exists.”

Id. at 305.

Here, Plaintiff does not state a constitutional claim. He does not plausibly allege that he

endured an extreme deprivation of any life necessity because he lacked a mattress, a sheet, and a

blanket for approximately two nights. See Hope v. Harris, 861 F. App'x 571, 583 (5th Cir. 2021)

("[A]lthough Hope also generally alleges excessive noise and sleep deprivation, . . . it is not clear

if the alleged noise is serious enough to cause sleep deprivation or how much sleep Hope

actually gets. Without such allegations, Hope has not alleged that he 'has been deprived of the

standards of decency that mark the progress of a maturing society.” Estelle v. Gamble, 429 U.S.

97, 102 (1976) (quotation marks and quoted source omitted).

10 “Such things as food, sleep, clothing, shelter, medical attention, reasonable safety, sleep, and

exercise have been recognized by courts as basic physical human needs subject to deprivation by

conditions of confinement.” Wilkerson v. Stalder, 639 F. Supp. 2d 654, 678 (M.D. La. 2007)

(citing cases).

minimal measure of life's necessities.'"). Nor does Plaintiff plausibly allege that he was exposed

to a substantial risk of serious harm because he lacked these items. Lacking a mattress, a sheet,

and a blanket for two nights could deprive one of sleep or warmth and thereby expose one to

harm, but the deprivation of sleep and/or warmth for two nights is not, absent more, extreme and

does not expose one to a substantial risk of serious harm.11 The undersigned is sympathetic and

does not condone the defendant's alleged actions (or inaction), but ultimately Plaintiff does not

plausibly allege the type of “‘cold hearted, casual unwillingness to investigate what can be done

for a man who is obviously in desperate need of help’” that the Fifth Circuit has “recognized as

necessary to constitute deliberate indifference.” See Davis v. Lithicum, 574 F. App'x 379, 380

(5th Cir. 2014). The Court should dismiss this claim.

5. Failure to Read Miranda Rights

Plaintiff claims that he was not read his rights under Miranda v. Arizona, 384 U.S. 436,

439 (1966). The alleged failure to read Miranda warnings, however, did not violate Plaintiff’s

constitutional rights and “cannot be grounds for a § 1983 action.” Chavez v. Martinez, 538 U.S.

760, 772 (2003); see Foster v. Carroll Cty., 502 F. App'x 356, 358 (5th Cir. 2012). A “violation

11 See Jarvis v. Hall, 2023 WL 3818377, at *4 (5th Cir. June 5, 2023) (opining, where the

plaintiff lacked clothing, bedding, and personal hygiene items for 3-7 days, that, inter alia, the

"temporary deprivations" were not extreme "in light of their short duration.") (citing Novak v.

Beto, 453 F.2d 661, 665-66, 69 (5th Cir. 1971) (short-term solitary confinement without full

bedding was not severe); Hamilton v. Lyons, 74 F.3d 99, 106 n.8 (5th Cir. 1996) (short-term lack

of showers and sheets was not severe); see also Grissom v. Davis, 55 Fed. Appx. 756, 758 (6th

Cir. 2003) (seven days without a mattress, sheets, or a blanket was not a deprivation of basic

human needs and did not cause serious harm); O'Leary v. Iowa State Men's Reformatory, 79 F.3d

82, 84 (8th Cir. 1996) (sleeping with no mattress or blanket for four days on a concrete slab in a

cell located 10 feet from an exterior door during winter did not deny plaintiff the minimal

civilized measures of life's necessities); Seltzer-Bey v. Delo, 66 F.3d 961, 964 (8th Cir.1995)

(placement in a cell without clothes, running water, a mattress or a blanket for two days was not

unconstitutional when the inmate did not suffer any injury or adverse health consequences).

of the Miranda rule[]” does not provide “a basis for a claim under § 1983.” Vega v. Tekoh, 597

U.S. 134, 141 (2022). The Court should dismiss this claim.

6. Medical Care

To plead a constitutional violation, a plaintiff “must demonstrate that a government

official was deliberately indifferent to ‘a substantial risk of serious medical harm.’” Bailey v. E.

Baton Rouge Par. Prison, 663 F. App’x 328, 330 (5th Cir. 2016) (quoting Wagner v. Bay City,

227 F.3d 316, 324 (5th Cir. 2000)). A prison official acts with deliberate indifference to an

inmate’s health “only if he knows that [the] inmate[ ] face[s] a substantial risk of serious harm

and disregards that risk by failing to take reasonable measures to abate it.” Farmer v. Brennan,

511 U.S. 825, 847 (1994); see Reeves v. Collins, 27 F.3d 174, 176-77 (5th Cir. 1994) (applying

Farmer to a denial of medical care claim). A plaintiff must establish that a prison official

“refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in

any similar conduct that would clearly evince a wanton disregard for any serious medical needs.”

Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).

“[N]either an incorrect diagnosis nor the failure to alleviate a significant risk that should

have been perceived, but was not, is sufficient to establish deliberate indifference.” Blank v.

Bell, 634 F. App’x 445, 448 (5th Cir. 2016). “Unsuccessful treatment, medical malpractice, and

acts of negligence do not constitute deliberate indifference; nor does a prisoner’s disagreement

with his medical treatment, absent exceptional circumstances. Moreover, a delay in treatment is

not unconstitutional, unless there has been deliberate indifference that results in substantial harm.

In short, [d]eliberate indifference is an extremely high standard to meet.” Id. (internal quotation

marks and quoted sources omitted); see Alton v. Tex. A & M Univ., 168 F.3d 196, 201 (5th Cir.

1999) (“Actions and decisions by officials that are merely inept, erroneous, ineffective, or

negligent do not amount to deliberate indifference.”); Frazier v. Keith, 707 F. App’x 823, 824

(5th Cir. 2018) (“The choice between forms of treatment is a classic example of a matter of

professional judgment and does not support a finding of deliberate indifference.”).

Here, Plaintiff's claim that Sheriff Bennett was deliberately indifferent to his "serious

mental help 'medical needs'" is entirely conclusory. For added context, the undersigned presents

Plaintiff's allegations verbatim:

Sheriff William 'Clay' Bennett deliberate indifference to Westley Chad-Grant

Simmons serious mental help 'medical needs' violated Eight Amendments rights

and United States Constitution and 14th Amendments 'Due Process' by fail to

investigated seriousness of claim on Grievances filed on Ms. Mayes and Major

Fredericks for abusive authority, cruel in unusual punishment, and excessive

force in violence. [sic].

[doc. # 1, p. 17]. As to Defendants McKeithen and Wyles, Plaintiff at best presents formulaic

recitations of causes of action, which are insufficient to state plausible claims:

Jack McKiethen 'Chief Deputy' delibrate indifference to Westley Chad-Grant

Simmons, Sr serious medical needs violated 8th Amendments and 14th

Amendments Due Process for failer to investigate Warden Kevin Wyles, Asst.

Warde David Callender, Major Frederick, Ms. Mayes In violation of my

constitution rights of excessive force, cruel In unusual punishments, Abuse his

authority completely by ignoring standard prison policy. Acted under the color

of state law knowingly and intentionly. [soc].

Id. at 17-18.

The Court should dismiss these all-too-conclusory claims.

In an amended pleading, Plaintiff alleges that after he asked a correctional officer for

medical treatment, he had to wait 52 days to receive medical care for his neck, back, trauma, and

anxiety. [doc. # 13, pp. 5-6]. To date, he has not received an appointment with a dentist or a

psychologist. Id. at 6. Plaintiff, however, does not name a defendant responsible for the delay;

and to be sure, he does not connect these latter claims to the allegations in his initial pleading

against Defendants Bennett, McKeithen, and Wyles. Accordingly, the Court should dismiss

these claims.

7. Investigating Grievances

Plaintiff claims that Sheriff Bennett, Chief Deputy McKeithen, Warden Wyles, and

Deputy Warden Callender "never investigated" or considered his grievances. [doc. # 1, pp. 15-

16]. He similarly alleges that Deputy Warden Callender and Sheriff Bennett failed to answer his

grievances. Id. at 16, 17, 18.

A prisoner, however, does “not have a constitutional right to have his grievances resolved

in his favor or to have his claims reviewed pursuant to a grievance process that is responsive to

his perceived injustices . . . .” Burgess v. Reddix, 609 F. App’x 211 (5th Cir. 2015); see

Alexander v. Texas Dep't of Criminal Justice, 2020 WL 826452, at *2 (5th Cir. Feb. 20, 2020)

(affirming dismissal of a claim that grievances were mishandled or improperly denied because

“prisoners have no due process rights in the inmate grievance process.”).

In Sandin v. Conner, 515 U.S. 472, 475 (1995), the Supreme Court left prisoners without

a federally-protected right to have grievances investigated and resolved. See Taylor v. Cockrell,

92 Fed. App’x. 77, 78 (5th Cir. 2004) (holding that “claims that the defendants violated his

constitutional rights by failing to investigate his grievances fall short of establishing a federal

constitutional claim.”); Geiger v. Jowers, 404 F.3d 371, 373-74 (5th Cir. 2005) (“[The plaintiff]

does not have a federally protected liberty interest in having . . . grievances resolved to his

satisfaction. . . . [A]ny alleged due process violation arising from the alleged failure to

investigate his grievances is indisputably meritless.”). Here, accordingly, the Court should

dismiss Plaintiff’s claims.

8. Failure to Discipline

Plaintiff claims that Sheriff Bennett, Chief Deputy McKeithen, and Warden Wyles failed

to discipline staff members involved in the uses of force described above. [doc. # 1, pp. 17-18].

A supervisory official may be held liable under Section if he “affirmatively participate[s]

in acts that cause constitutional deprivation” or “implement[s] unconstitutional policies that

causally result in plaintiff's injury.” Baker v. Putnal, 75 F.3d 190, 199 (5th Cir.1996) (citing

Mouille v. City of Live Oak, Tex., 977 F.2d 924, 929 (5th Cir.1992)).

Here, Plaintiff does not allege that Bennett, McKeithen, or Wyles were involved in the

uses of force or implemented an unconstitutional policy. See Lentworth v. Potter, 255 F. App'x

903, 905 (5th Cir. 2007) (holding, where the plaintiff alleged that supervisory officials were

informed of retaliatory acts and did not take corrective action, that the plaintiff failed to allege

that the defendants were involved in the retaliation or implemented an unconstitutional policy);

Fraire v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992) (finding a claim “wholly

insufficient” where the plaintiffs alleged only that a city ratified an officer’s actions because the

city refused to discipline the officer and knew that the officer’s version of the event was false);

Calhoun v. City of Houston Police Dep't, 855 F. App'x 917, 922 (5th Cir. 2021) (“Calhoun

averred that Houston had a policy of ‘failing’ to ‘properly discipline,’ ‘restrict,’ and ‘control’ its

employees. But such conclusory allegations are insufficient to state a claim.”).

In addition, Plaintiff alleges that Bennett, McKeithen, or Wyles failed to act after the

other defendants allegedly used excessive force. Perforce, he does not allege that the defendants

caused the alleged uses of excessive force. Section 1983 provides in relevant part: “Every

person who . . . subjects, or causes to be subjected, any citizen of the United States . . . to the

deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be

liable to the party injured . . . .” 42 U.S.C. § 1983 (emphasis added). If a person is not

personally involved, then, a fortiori, he cannot subject another to, or cause, a deprivation of

constitutional rights. See Rodriguez v. Lozano, 108 F. App'x 823, 829-30 (5th Cir. 2004)

(opining, where the plaintiff alleged that a warden and captain took no action after the plaintiff

was attacked, that the plaintiff failed to allege that the defendants "acted or failed to act with

deliberate indifference to a substantial risk of serious harm to him before the attack.").

The Court should dismiss these claims.

9. Impermissible Relief

For relief, Plaintiff seeks, among other relief, the termination of Defendants Mayes' and

Frederick's employment and the prosecution of Mayes and Frederick. [doc. # 1, p. 5].

A. Terminating Employment

Federal courts are not prison managers or personnel directors. See Hurrey v. Unknown

TDCJ Corr. Officer A, 2009 WL 3645638, at *2 (N.D. Tex. Nov. 4, 2009). Courts “will not

interfere in the administration of prisons absent an abuse of the wide discretion allowed prison

officials in maintaining order and discipline.” Royal v. Clark, 447 F.2d 501, 501-02 (5th Cir.

1971). The Supreme Court has continuously cautioned federal courts from assuming “a greater

role in decisions affecting prison administration.” Shaw v. Murphy, 532 U.S. 223, 230 (2001);

see Turner v. Safley, 482 U.S. 78, 84-85 (1987); Smith v. Sullivan, 611 F.2d 1039, 1044 (5th Cir.

1980).

Moreover, Plaintiff’s request sounds in mandamus as he essentially asks the Court to, by

writ, compel the non-federal official (or entity) with the authority to terminate defendants’

employment to perform his, her, or its duties. In this respect, the Court lacks jurisdiction.12 See

Samuels v. Emanuel, 2014 WL 50851, at *2 (W.D. La. Jan. 7, 2014) (reasoning, where the

plaintiff asked “that the defendants be relieved from their duties[,]” that “federal district court

lacks jurisdiction to review actions in the nature of mandamus, seeking to compel state officials

to perform duties allegedly owed the plaintiff, as for example in this case . . . .”).

The Court should deny Plaintiff’s requested relief.

B. Prosecuting Defendants

There is no constitutional right to have a person criminally prosecuted. Oliver v. Collins,

914 F.2d 56, 60 (5th Cir. 1990).13 Investigating and prosecuting possible criminal activities lies

in the exclusive jurisdiction of the executive branch of government. In the federal context, for

example, prosecuting criminal actions lies in the discretion of the Attorney General of the United

States and duly authorized United States Attorneys. In Louisiana, prosecuting criminal actions

lies in the discretion of the Louisiana Attorney General and the various District Attorneys. See

LA. CODE. CRIM. PROC. arts. 61 and 62.

Plaintiff should direct his concerns to a local, state, or federal law enforcement agency.

He should be aware that if a prosecuting authority investigates and chooses not to file charges,

“[t]he decision to file or not file criminal charges . . . will not give rise to section 1983 liability.”

Oliver, 904 F.2d at 281. The courts “allow the government discretion to decide which

12 “The district courts shall have original jurisdiction of any action in the nature of mandamus to

compel an officer or employee of the United States or any agency thereof to perform a duty owed

to the plaintiff.” 28 U.S.C. § 1361 (emphasis added).

13 See U.S. v. Batchelder, 442 U.S. 114, 124 (1979) (“Whether to prosecute and what charge to

file or bring before a grand jury are decisions that generally rest in the prosecutor’s discretion.”);

Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially

cognizable interest in the prosecution or nonprosecution of another.”).

individuals to prosecute, which offenses to charge, and what measure of punishment to seek.”

U.S. v. Lawrence, 179 F.3d 343, 348 (5th Cir. 1999); see, e.g., Hymel v. Champagne, 2007 WL

1030207, *2 (E.D. La. 2007) (denying a plaintiff's request to investigate a correctional center:

“this Court has no authority to issue such an order and plaintiff has no constitutional right to such

an order. Moreover, to the extent that plaintiff is alleging that a criminal investigation should be

instituted, such investigations are solely within the purview of law enforcement authorities.”).

The Court should deny Plaintiff’s requested relief.

10. Official Capacity

Plaintiff seeks relief from Defendants Frederick, Mayes, and Trenchell in their official

capacities. [doc. # 1, pp. 2-3].

Plaintiff, however, does not allege that these defendants made any policy. If a defendant

is not a policymaker, the defendant is “not the proper defendant for an official capacity claim . . .

.” Truvia v. Julien, 187 F. App'x 346, 350 (5th Cir. 2006) (“An assistant district attorney,

therefore, is not a policymaker and not the proper defendant for an official capacity claim against

the District Attorney's Office.”); see Kelley v. City of Wake Vill., Texas, 264 F. App’x 437, 442

(5th Cir. 2008) (“Because no evidence has been presented that Officer Crawford was, at any time

relevant to this proceeding, a policymaker in the WVPD, we affirm the district court's dismissal

of the claim against him in his official capacity.”).

To be sure, “the specific identity of the policymaker is a legal question that need not be

pled . . . ." Groden v. City of Dallas, Texas, 826 F.3d 280, 284 (5th Cir. 2016). However, the

undersigned does not recommend dismissing Plaintiff’s official capacity claims against these

defendants because Plaintiff fails to plead the identity of a policymaker; rather, the undersigned

recommends dismissal because Plaintiff does not allege or even suggest that any of these

defendants made policy.

11. Conspiracy

Plaintiff alleges, "[Warden Wyles] conspire to keeps his staffs jobs instead of taking

matters seriously. [sic]." [doc. # 1-2, p. 18]. He also alleges, "[Deputy Warden Callender]

conspire prisoners policy to protect his staff jobs. [sic]." Id.

“A conspiracy may be charged under section 1983 as the legal mechanism through which

to impose liability on all of the defendants without regard to who committed the particular act,

but ‘a conspiracy claim is not actionable without an actual violation of section 1983.’” Hale v.

Townley, 45 F.3d 914, 920 (5th Cir. 1995) (quoting Pfannstiel v. City of Marion, 918 F.2d 1178,

1187 (5th Cir. 1990)). “To plead a conspiracy under Section 1983, a plaintiff must allege facts

that suggest: 1) an agreement between the private and public defendants to commit an illegal act,

and 2) an actual deprivation of constitutional rights.” Shine v. Jones, 743 F. App'x 566, 568 (5th

Cir. 2018). “Charges as to such conspiracies must be based on substantial and affirmative

allegations, and no mere gossamer web of conclusion or inference . . . trifles light as air . . . will

suffice[.]” Crummer Co. v. Du Pont, 223 F.2d 238, 245 (5th Cir. 1955).

Here, Plaintiff does not allege that that Defendants Wyles or Callender agreed to commit

an illegal act. "Conclusory allegations that do not reference specific factual allegations tending

to show an agreement do not suffice to state a civil rights conspiracy claim under § 1983.” See

Montgomery v. Walton, 759 F. App'x 312, 314 (5th Cir. 2019). In this respect, Plaintiff fails to

plead an essential element of a conspiracy claim. Accordingly, the Court should dismiss these

claims.

Recommendation

For the reasons above, IT IS RECOMMENDED that Plaintiff Westley Chad-Grant

Simmons, Sr.'s claim that Lieutenant Mayes utilized excessive force by choking him, digging her

nails into his neck, and placing her knee and weight on his pelvis and "private area" be STAYED

under the following conditions:

a. If Plaintiff intends to proceed with this claim, he must, within thirty (30) days

of the date the criminal proceedings against him conclude, file a motion to lift

the stay;

b. If the stay is lifted and the Court finds that Plaintiff’s claims would impugn

the validity of his conviction, the action will be dismissed under Heck; if no such

finding is made, the action will proceed absent some other bar to suit;

c. Plaintiff should not file any more documents concerning these particular

claims (other than an objection to this Report and Recommendation if he

chooses) in this action until the state court proceedings conclude; and

d. Defendant shall not be required to answer these claims during the stay, and

Plaintiff may not seek a default judgment or conduct any discovery during the

stay.

IT IS FURTHER RECOMMENDED that—with the exception of Plaintiff's claims that

Lieutenant Trenchell tazed him, that Lieutenant Mayes tazed him, and that Major Frederick

tripped him and tazed him—Plaintiff's remaining claims, including his official capacity claims

against Defendants Frederick, Mayes, and Trenchell, and his requests to prosecute, and terminate

the employment of, Mayes and Frederick be DISMISSED WITH PREJUDICE for failing to

state claims on which relief may be granted.

Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Rule 72(b), parties aggrieved by

this recommendation have fourteen (14) days from service of this Report and Recommendation

to file specific, written objections with the Clerk of Court. A party may respond to another

party’s objections within fourteen (14) days after being served with a copy of any objections or

response to the district judge at the time of filing.

Failure to file written objections to the proposed factual findings and/or the

proposed legal conclusions reflected in this Report and Recommendation within fourteen

(14) days following the date of its service, or within the time frame authorized by Fed. R.

Civ. P. 6(b), shall bar an aggrieved party from attacking either the factual findings or the

legal conclusions accepted by the District Court, except upon grounds of plain error. See

Douglass v. United Services Automobile Association, 79 F.3d 1415 (5th Cir. 1996).

In Chambers, Monroe, Louisiana, this 27" day of May, 2025.

canteeffoe Me Coy shy

Kayla Dye McClusky’

United States Magistrate Judge

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