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Case: 19-30063

Document: 00515063445

Page: 1

Date Filed: 08/05/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 19-30063

FILED

August 5, 2019

Lyle W. Cayce

Clerk

MITCHELL STEVENS

Plaintiff-Appellant

v.

DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY;

CHAD MANSINNI, Warden; TROY PORET, Warden; UNKNOWN DUPONT,

Warden; ORVILLE LAMARTIANEER, Warden; UNKNOWN CRUZ, Colonel;

UNKNOWN ROBINSON, Colonel; CHAD ORBRA, Lieutenant Colonel;

SHELTON SCALES, Major; WILLIAM ROSSO, Captain; MAGAN SHIPLEY,

Class. Officer; UNKNOWN FAIRCHILD, Class. Officer; UNKNOWN

BOUDROUX, Sec. Officer Staff Sergeant; UNKNOWN PIGEON, Lieutenant;

SHERWOOD PORET, Registered Nurse; MELANIE BARTON, Registered

Nurse; JAMES LABLANC, Sec.; ALL WHO ADMINISTER SHOTS SINCE

2002; AMY ZAUNBRACHER, Registered Nurse,

Defendants-Appellees

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:14-CV-204

Before HIGGINBOTHAM, SOUTHWICK, and WILLETT, Circuit Judges.

PER CURIAM:*

* Pursuant to 5TH ClR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

ClR. R. 47.5.4.

Case: 19-30063

Document: 00515063445

Page: 2

Date Filed: 08/05/2019

No. 19-30063

Mitchell Stevens, Louisiana prisoner # 78189, moves this court to provide

him authorization to proceed in forma pauperis (IFP) following the district

court’s order denying his Federal Rule of Civil Procedure 60(b) motion

challenging the dismissal of his 42 U.S.C. § 1983 complaint. The district court

certified that Stevens’s appeal was not taken in good faith and denied his

request to proceed IFP on appeal pursuant to the imminent danger exception

of 28 U.S.C. § 1915(g).

Stevens is barred under the three-strikes provision in 28 U.S.C. § 1915(g)

from proceeding in forma pauperis (IFP) in any civil action while incarcerated

or detained in any facility unless he is under imminent danger of serious

physical injury. In asserting that he is under imminent danger of serious

physical injury, Stevens argues that he suffers from physical injuries caused

by tuberculosis testing that the defendants have forced him to undergo since

2002.

Specifically, he contends that the testing has caused him to suffer

periodic internal pains, his skin to peel and split, and his nails to turn black

and deteriorate. He also surmises that the substance used in the testing is

slowly causing the development of cancer.

Stevens fails to support his

conclusional allegations with any evidence that his alleged conditions exist or

that they are caused by the tuberculosis testing. Thus, he has failed to show

that he was in imminent danger of serious physical injury at the time that he

filed his motion to proceed IFP. See Banos v. O’Guin, 144 F.3d 883, 884-85 (5th

Cir. 1998); Stone v. Jones, 459 F. App’x 442, 442 (5th Cir. 2012); Cloud v. Stotts,

455 F. App’x 534, 535 (5th Cir. 2011).

Accordingly, Stevens’s motion for leave to proceed IFP is DENIED. The

facts surrounding the IFP decision are inextricably intertwined with the merits

of the appeal. See Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 1997).

2

Case: 19-30063

Document: 00515063445

Page: 3

Date Filed: 08/05/2019

No. 19-30063

The appeal presents no nonfrivolous issues and is dismissed as frivolous. 5TH

ClR. R. 42.2.

MOTION DENIED; APPEAL DISMISSED

3

Case 3:14-cv-00204-JWD-RLB

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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

MITCHELL STEVENS (#78189)

CIVIL ACTION

v.

NO. 14-204-JWD-RLB

BURL CAIN, ET AL.

RULING AND ORDER

After independently reviewing the entire record in this case and for the reasons set forth

in the Magistrate Judge’s Report (Doc. 20), to which an objection was filed:

IT IS ORDERED that the Plaintiffs objection is OVERRULED; that the Court decline

the exercise of supplemental jurisdiction over any potential state law claims; and that this action

be dismissed, with prejudice, as legally frivolous and for failure to state a claim upon which

relief may be granted pursuant to 28 U.S.C. §§ 1915(e) and 1915A.

Signed in Baton Rouge, Louisiana, on June 1. 2017.

JUDGE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

Case 3:14-cv-00204-JWD-RLB

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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

MITCHELL STEVENS (#78189)

CIVIL ACTION

VERSUS

NO. 14-204-JWD-RLB

BURL CAIN, ET AL.

NOTICE

Please take notice that the attached Magistrate Judge’s Report has been filed with the

Clerk of the United States District Court.

In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served

with the attached Report to file written objections to the proposed findings of fact, conclusions of

law and recommendations therein. Failure to file written objections to the proposed findings,

conclusions, and recommendations within 14 days after being served will bar you, except upon

grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and

legal conclusions of the Magistrate Judge which have been accepted by the District Court.

ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE

WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE’S REPORT.

Signed in Baton Rouge, Louisiana, on May 23, 2017.

RICHAKSL. BOUlfiiEOiS, JR

UNITED STATES MAGISTRATE JUDGE

Case 3:14-cv-00204-JWD-RLB

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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

MITCHELL STEVENS (#78189)

CIVIL ACTION

VERSUS

NO. 14-204-JWD-RLB

BURL CAIN, ET AL.

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

The pro se plaintiff, an inmate confined at the Louisiana State Penitentiary (“LSP”),

Angola, Louisiana, filed this proceeding pursuant to 42 U.S.C. § 1983 against numerous

defendants, complaining that his constitutional rights were violated when the plaintiff was forced

to undergo tuberculosis testing in violation of his religious beliefs. He prays for monetary,

declaratory, and injunctive relief.

Pursuant to 28 U.S.C. §§ 1915(e) and 1915A, this Court is authorized to dismiss an

action or claim brought by a prisoner who is proceeding in forma pauperis or is asserting a claim

against a governmental entity or an officer or employee of a governmental entity if satisfied that

the action or claim is frivolous, malicious or fails to state a claim upon which relief may be

granted. An action or claim is properly dismissed as frivolous if the claim lacks an arguable

basis either in fact or in law. Denton v. Hernandez, 504 U.S. 25, 31 (1992), citing Neitzke v.

Williams, 490 U.S. 319, 325 (1989); Hicks v. Garner, 69 F.3d 22, 24-25 (5th Cir. 1995).

A claim is factually frivolous if the alleged facts are “clearly baseless, a category

encompassing allegations that are ‘fanciful,’ ‘fantastic,’ and ‘delusional.’” Id. at 32-33. A claim

has no arguable basis in law if it is based upon an indisputably meritless legal theory, “such as if

the complaint alleges the violation of a legal interest which clearly does not exist.” Davis v.

Scott, 157 F.3d 1003, 1005 (5th Cir. 1998). The law accords judges not only the authority to

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dismiss a claim which is based on an indisputably meritless legal theory, but also the unusual

power to pierce the veil of the factual allegations. Denton v. Hernandez, supra, 504 U.S. at 32.

Pleaded facts which are merely improbable or strange, however, are not frivolous for purposes of

§ 1915. Id. at 33; Ancar v. Sara Plasma, Inc., 964 F.2d 465, 468 (5th Cir. 1992). A § 1915

dismissal may be made any time, before or after service or process and before or after an answer

is filed, if the court determines that the action “is frivolous or malicious; fails to state a claim on

which relief may be granted; or seeks monetary relief against a defendant who is immune from

such relief.” See 28 U.S.C. § 1915(e)(2) and Green v. McKaskle, 788 F.2d 1116, 1999 (5th Cir.

1986).

The plaintiff alleges the following in his Complaint: On October 8, 2013, the plaintiff

was called out from his housing unit for an annual tuberculosis (“T.B.”) test. The defendant

claims that his religious beliefs require him to refrain from putting any substances into his body

other than food and liquids for thirst; therefore, the plaintiff told the nurse that he refused due to

his religious beliefs. The nurse offered various explanations as to why the plaintiff was required

to undergo T.B. testing, but the plaintiff again refused. The nurse then made a call, and

defendant Captain William Rosso arrived. The nurse then informed the plaintiff that he would

be physically restrained and the testing would be performed. The nurse informed the plaintiff

that everyone was required to undergo T.B. testing by law, but the plaintiff again refused.

Defendant Rosso asked the nurse if she wanted the plaintiff to be restrained, but the nurse

informed defendant Rosso that a court order would be required in order to do so.

The plaintiff was then taken by defendant Rosso to the Education Building, where

defendant Col. Cruz and defendant Maj. Shelton Scales were waiting. The plaintiff was again

advised by the defendants that T.B. testing was required by law. The plaintiff again refused and

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the defendants agreed that the plaintiff should be confined, restrained and the testing

administered. The plaintiff was placed in solitary confinement.

On October 10, 2013, the plaintiff was taken before a disciplinary board, consisting of

defendants Lt. Col. Chad Orbra and Classification Officer Fairchild, for aggravated disobedience

and failure to obey a direct verbal order. The plaintiff informed the disciplinary board of his

religious objection to the testing, but was found guilty and sentenced to 30 days in the working

cell block, suspended for 30 days, and the plaintiff was returned to solitary confinement. The

plaintiff was advised by defendant Orbra that he would be physically restrained and forced to

undergo the testing.

That night the plaintiff drafted a grievance regarding forced annual T.B. testing, and his

religious objection to the same. The grievance was received on or about November 17, 2013.

On November 25, 2013, defendant Orbra called the plaintiff into an office and made several

verbal threats of physical violence if the plaintiff failed to consent to the testing. On December

2, 2013, the plaintiff was called to a table at breakfast to meet with defendants Orbra, Rosso, and

Scales. The defendants asked if the plaintiff intended to withdraw his grievance. When the

plaintiff responded in the negative, the defendants began to “a barrage of verbal abuse.” The

defendants then ask defendant Nurse Melanie Barton to come to perform the testing, but she

refused.

On December 12, 2013, the plaintiff was informed by defendant Rosso that he had made

arrangements for the plaintiff to undergo T.B. testing the following day but the testing did not

occur. On December 16, 2013, defendant Rosso kept the plaintiff in from work and sent the

plaintiff to the treatment center. The gate guard informed the plaintiff that there was not a

scheduled appointment for him and sent the plaintiff back to his dorm. Defendant Rosso was

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enraged, and ordered that the plaintiff return to the gate for transport. Defendant Rosso order the

gate guard to add the plaintiff to the roster.

The plaintiff was taken to the treatment center where he encountered defendant Nurse

Sherwood Poret. Defendant S. Poret inquired as to why the plaintiff was refusing the T.B.

testing. The plaintiff informed Defendant S. Poret of his religious objection to the testing, but

defendant S. Poret stated that the testing would be administered the following day.

On December 17, 2013, the plaintiff was again removed from the work line and taken to

the Education Building. Defendants Warden Chad Mansinni, Col. Robinson, Orbra, Scales and

Rosso were present. The plaintiff was verbally harassed by defendants Orbra, Scales, and Rosso.

Defendant Robinson did not make any threats, but agreed that the plaintiff was required to

undergo T.B. testing. Defendant Mansinni also made no threats but informed the plaintiff that

the T.B. testing would be performed in the near future.

Defendants Barton, Nurse Amy Zaunbracher, and S. Poret then arrived, and discussed

with the guards how to force the plaintiff to undergo testing. The plaintiff was then returned to

extended lockdown. On December 18, 2013, the plaintiff amended his grievance to include the

events which occurred since the filing of his original grievance.

On December 19, 2013, the plaintiff was taken before a disciplinary board consisting of

defendant Orbra and defendant Megan Shipley, for failure to obey a direct order. The plaintiff

was found guilty and sentenced to a quarters change to the working cell block, and to undergo

T.B. testing. The plaintiff informed the board that T.B. testing was not an authorized sanction

and that he intended to appeal.

On December 20, 2013, the plaintiff was placed in restraints. His hands were shackled to

his waist and shackles were places on his ankles. He was placed in a shower. Defendant

Warden Orville Lamartiniere appeared with four officers dressed in baseball equipment and riot

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gear. Defendant Lamartiniere was also accompanied by defendants Barton, Zaunbracher, S.

Poret, and Mansinni. Defendant S. Poret had a needle in his hand and ordered the plaintiff to

come to the bars for testing. The plaintiff refused and defendant Lamartiniere ordered the

plaintiff to move to the comer of the shower and get on his knees. Two of the officers, defendant

Lt. Pigeon and Staff Sgt. Boudreaux, placed the plaintiff in a choke hold while the other two

officers held the plaintiffs arms. Defendant S. Poret then performed the Mantoux T.B. skin

testing. The plaintiff thereafter refused medical treatment although he was in great pain.

On December 23, 2013, the plaintiff was taken before a disciplinary board. The plaintiff

was informed by defendant Robison that a rehearing regarding the write up by defendant Orbra

would need to be had due to technical difficulties with the audio recording. On December 26,

2013, the plaintiff was found guilty of “refusal” by defendant Lamartiniere. The plaintiffs

unspecified sanction continued through the date of the filing of his Complaint.

The plaintiffs allegations fail to state a claim cognizable in this Court. First, as to any

claims the plaintiff may be asserting against the defendants in their official capacities, § 1983

does not provide a federal forum for a litigant who seeks monetary damages against either a state

or its officials acting in their official capacities, specifically because these officials are not seen

to be “persons” within the meaning of § 1983. Will v. Michigan Department of State Police, 491

U.S. 58, 71 (1989). In addition, in Hafer v. Melo, 502 U.S. 21 (1991), the United States Supreme

Court addressed the distinction between official capacity and individual capacity lawsuits and

made clear that a suit against a state official in an official capacity for monetary damages is

treated as a suit against the state and is therefore barred by the Eleventh Amendment. Id. at 25.

Accordingly, the plaintiffs § 1983 claims asserted against the defendants in their official

capacities for monetary damages are subject to dismissal. In contrast, the plaintiffs claim for

monetary damages and injunctive relief asserted against the defendants in their individual

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capacities remain viable because such claims are not treated as a suit against the state. Of

course, the plaintiff must prove a deprivation of a constitutional right to obtain any relief.

Turning to the plaintiffs claim that the T.B. testing was performed in violation of his

religious beliefs, the Free Exercise Clause of the First Amendment, as applied to the states

through the Fourteenth Amendment, prohibits conduct which unreasonably impinges upon the

free exercise of an inmate's religious beliefs. While inmates retain their First Amendment

religious rights notwithstanding their incarcerated status, the exercise of these rights is subject to

reasonable restrictions and limitations necessitated by penological goals. O'Lone v. Shabazz, 482

U.S. 342, 349 (1987); see also Baranowski v. Hart, 486 F.3d 112, 120 (5th Cir. 2007), citing

Turner v. Safley, 482 U.S. 78, 89 (1987). A prison action or regulation that impinges upon an

inmate's First Amendment constitutional rights is valid if it is reasonably related to legitimate

penological interests. Turner v. Safley, supra, 482 U.S. at 89.

RLUIPA provides that government officials may not impose a substantial burden on the

religious exercise of a person confined to an institution unless that burden is in furtherance of a

compelling governmental interest and is the least restrictive means of furthering that compelling

governmental interest. 42 U.S.C. § 2000cc-l(a). Under RLUIPA, the plaintiff bears the initial

burden of proving that a challenged government action “substantially burdens” his “religious

exercise.” Mayfield v. Texas Dept, of Criminal Justice, 529 F.3d 599, 613 (5th Cir. 2008). If the

plaintiff meets that burden, the burden shifts to the government to “demonstrate that its action

was supported by a compelling interest and that the regulation is the least restrictive means of

carrying out that interest.” Id. “RLUIPA imposes a higher burden than does the First

Amendment in that the statute requires prison regulators to put forth a stronger justification for

regulations that impinge on the religious practices of prison inmates.” Id. at 612. A government

action imposes a substantial burden on religious exercise if it “truly pressures the adherent to

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significantly modify his religious behavior and significantly violate his religious beliefs.” Id. at

613, quoting Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004). Whether the government

action or regulation imposes a substantial burden on an adherent's exercise requires a case-bycase, fact-specific inquiry. Id. Although RLUIPA imposes strict scrutiny upon the imposition of

certain religious limitations upon prisoners, the drafters of the statute were mindful that

discipline, order and security are urgent in penal institutions, and they therefore anticipated that

courts would apply the RLUIPA test “with due deference to the experience and expertise of

prison and jail administrators in establishing necessary regulations and procedures to maintain

good order, security and discipline, consistent with consideration of costs and limited resources.”

See Cutter v. Wilkinson, 544 U.S. 709, 723 (2005).

“A court must determine whether the government objective underlying the regulation at

issue is legitimate and neutral, and that the regulations are rationally related to that objective.”

Freeman v. TDCJ, 369 F.3d 854, 860 (5th Cir. 2004) (internal quotation marks and citation

omitted). Due regard also must be given to the decisions of prison officials, because “ ‘prison

administrators ..., and not the courts, [are] to make the difficult judgments concerning

institutional operations.’ ” Turner, 482 U.S. at 89 (omission and alteration in original) (citing

Jones v. N.C. Prisoners' Labor Union, 433 U.S. 119, 128 (1977)).

Prisons have a “compelling” interest in preventing the spread of tuberculosis, a highly

contagious and deadly disease. McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997).

Thus, prison policies of forcibly testing and treating inmates for tuberculosis and mandating

isolation for non-compliant inmates have been consistently held constitutional. McCormick, 105

F.3d at 1062 fn. 1 citing Karolis v. New Jersey Dept. Of Corrections, 935 F. Supp. 523, 527-28

(D.N.J. 1996) (noting that TB is “likely to spread easily and rapidly” and therefore the state has

“strong interest” in “diagnosing and treating inmates”) and fn. 2 citing Mack v. Campbell, 948

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F.2d 1289, 1991 WL 243569 (6th Cir. 1991) (TB screening program did not violate the

constitution nor did placement in administrative segregation for refusing tuberculosis screening

test), Rhinehart v. Gomez, 1995 WL 364339, *3-4 (N.D. Cal. June 8, 1995) (prison policy of

involuntary or forced testing and treatment for tuberculosis held constitutional) and Karolis v.

New Jersey Dept, of Corrections, 935 F. Supp. 523, 527-28 (D.N.J. 1996) (involuntary

administration of tuberculosis test to prisoner upheld against challenge under Religious Freedom

Restoration Act because there is a compelling state interest in stopping the spread of

tuberculosis).

In McCormick v. Stalder, 105 F.3d 1059, the plaintiff therein complained that his

constitutional rights were violated due a prison policy requiring him to undergo prophylactic

treatment due to a previous positive tuberculosis test. The district court dismissed the suit as

frivolous, and the Court of Appeals for the Fifth Circuit affirmed, finding that the prison’s

interest in preventing the spread of tuberculosis, a highly contagious and deadly disease, is

compelling. The Court further found that the interest in preventing the disease includes an

interest in providing medical treatment for inmates infected with the disease, the prison policy at

issue was a rational means of discharging the prison’s duty to prevent tuberculosis and, citing to

Karolis v. New Jersey Dept, of Corrections, 935 F. Supp. 523, 527-28 (D.N.J. 1996), found that

there is no apparent alternative system of meeting the described objectives.

In Karolis, the plaintiff was offered a choice of either submitting to T.B. testing, which

he considered to be an intrusive medical procedure prohibited by his religion, or suffering

solitary confinement, administrative segregation, and loss of commutation time. While the Court

determined that this choice created a substantial burden on the plaintiffs First Amendment free

exercise rights, the court went on to find that the state had a compelling interest in preventing the

spread of tuberculosis, and that goal is easily achieved through the Mantoux skin test, which is

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the most effective and least restrictive method of determining whether a person is infected with

T.B. Accordingly, the Court dismissed the plaintiffs claims on summary judgment. See Karolis

v. New Jersey Dept, of Corrections, 935 F. Supp. 523, 530 (D.N.J. 1996).

In the instant matter, while the plaintiffs First Amendment free exercise rights might be

substantially burdened by forced T.B. testing, it is widely accepted that the prison has a

compelling interest in preventing the spread of tuberculosis, and the Mantoux skin test is the

least restrictive means of furthering the prison’s compelling interest.1 See also Hebert v.

Neustrom, 2009 WL 2356450 (W.D. La. July 29, 2009) (dismissing a claim regarding T.B.

testing as frivolous due to state’s compelling interest in preventing the spread of tuberculosis);

Ramsey v. Tucker, 2015 WL 4067911 (W.D. La. July 1, 2015) (same); Hasenmeier-McCarthy v.

Rose, 986 F. Supp. 464 (S.D. Ohio 1998) (granting dispositive motion dismissing claim that

forced T.B. testing violated the plaintiffs rights under the First Amendment); Neal v. Watts,

2008 WL 748321 (D.D.C. March 17, 2008) (same); Whitfield v. Goins, 2014 WL 4825916 (S.D.

Ill. Sept. 29, 2014) (same); and Morrow v. Hughey, 2015 WL 4170663 (E.D. Ark. July 6, 2015)

(same). Accordingly, the plaintiffs complaint fails to state a claim for a violation of his First

Amendment free exercise rights.

Turning to the plaintiffs excessive force claim, use of force by a prison official is

excessive and violates the Eighth Amendment to the United States Constitution only when such

force is applied maliciously and sadistically for the very purpose of causing harm rather than in a

good faith effort to maintain or restore discipline. Wilkins v. Gaddy, 559 U.S. 34, 37 (2010),

quoting Hudson v. McMillian, 503 U.S. 1,7 (1992). Not every malicious or malevolent action

by a prison guard gives rise to a federal cause of action, however, and the Eighth Amendment’s

1 See Karolis v. New Jersey Dept, of Corrections, 935 F. Supp. 523 (D.N.J. 1996) for a detailed analysis of the

spread of tuberculosis, and the inadequacy of other means of testing for tuberculosis.

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prohibition against cruel and unusual punishment necessarily excludes from constitutional

recognition de minimis uses of physical force, provided that such force is not of a sort “repugnant

to the conscience of mankind.” Hudson v. McMillian, supra, 503 U.S. at 10, quoting Whitley v.

Albers, 475 U.S. 312, 327 (1986).

The fact that an inmate may have sustained only minimal injury, however, does not end

the inquiry, and an inmate who has been subjected to gratuitous force by prison guards “does not

lose his ability to pursue an excessive force claim merely because he has the good fortune to

escape without serious injury.” Wilkins v. Gaddy, supra, 559 U.S. at 38. Notwithstanding, the

Court may consider the extent of injury, if any, as potentially relevant to a determination whether

an alleged use of force was excessive under the circumstances. Other factors that may be

considered in determining whether an alleged use of force has been excessive include the

perceived need for the application of force, the relationship between the need for force and the

amount of force utilized, the threat reasonably perceived by prison officials, and any efforts

made to temper the severity of a forceful response. Hudson v. McMillian, supra, 503 U.S. at 7.

The plaintiff s Complaint is devoid of any allegations which would tend to show that

force was applied maliciously and sadistically for the purpose of causing harm. Rather, the

plaintiffs allegations establish that force was applied in order to administer the T.B. testing in

accordance with the prison’s mandatory policy after the plaintiff refused testing. As such, the

plaintiff has failed to state an excessive force claim.

Turning to the plaintiff s claims regarding a violation of his due process rights in

connection with his administrative remedy and disciplinary proceedings, an inmate does not have

a constitutional right to have his prison disciplinary or administrative proceedings properly

investigated, handled, or favorably resolved. Mahogany v. Miller, 252 F. App’x. 593, 595 (5th

Cir. 2007), and there is no procedural due process right inherent in such a claim. As stated by

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the United States Court of Appeal for the Fifth Circuit in Geiger v. Jowers, 404 F.3d 371 (5th

Cir. 2005) (in the context of the handling of an administrative grievance):

Insofar as [the plaintiff] seeks relief regarding an alleged violation of his due process

rights resulting from the prison grievance procedures, the district court did not err in

dismissing his claim as frivolous...[The plaintiff] does not have a federally protected

liberty interest in having these grievances resolved to his satisfaction. As he relies on

legally nonexistent interest, any alleged due process violation arising from the alleged

failure to investigate his grievances is indisputably meritless. Id. at 373-74.

This conclusion is equally applicable in the context of prison disciplinary proceedings.

See, e.g., Sanchez v. Grounds, 2014 WL 1049164, *2 (E.D. Tex. Mar. 14, 2014) (finding that an

inmate’s claim regarding a failure to conduct a “proper investigation” of a disciplinary charge

“did not amount to a constitutional deprivation”); and Jackson v. Mizell, 2009 WL 1792774, *7

n.l 1 (E.D. La. June 23, 2009) (noting that “the Court fails to see how a prisoner could ever state

a cognizable claim alleging an inadequate disciplinary investigation”).

Further, the failure of prison officials to follow prison rules or regulations does not

amount to a violation of the plaintiffs constitutional rights. Jackson v. Cain, 864 F.3d 1235,

1252 (5th Cir. 1989). Nor does this Court sit as some form of an appellate court to review errors

made by state tribunals that do not affect an inmate’s constitutional rights. See, e.g, Coleman v.

Director, TDCJ-CID, 2009 WL 56947, *2 (E.D. Tex. Jan. 7, 2009) (noting, in the context of an

inmate’s habeas corpus proceeding arising out of a prison disciplinary proceeding, that “[i]n the

course of reviewing state proceedings, a federal court does not sit as a super state appellate

court.”).

Moreover, in Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court noted that in

some rare situations, an inmate may be entitled to procedural Due Process when state action

exceeds the sentence in such an unexpected way as to give rise to protection by the Due Process

Clause of its own force. Normally, however, the Due Process Clause, itself, does not afford an

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inmate a protected liberty interest that would entitle him to the procedural protections set forth in

Wolff v. McDonnell, 418 U.S. 539 (1974). It is only those restrictions that impose “atypical and

significant hardship[s] ... in relation to the ordinary incidents of prison life” that will invoke the

prospect of state-created liberty interests. Wilkinson v. Austin, 545 U.S. 209, 222-23 (2005).

Thus, while Sandin made it clear that punishments that impact upon the duration of

confinement, or which exceed the sentence in an unexpected manner, or that impose “atypical

and significant hardships] ... in relation to the ordinary incidents of prison life” will give rise to

the protection afforded by the Due Process Clause, more routine disciplinary action will not

invoke this constitutional protection. Sandin, 515 U.S. at 484. In the instant case, the plaintiff

was sentenced to a custody status change. This punishment does not amount to disciplinary

action that infringes upon a constitutionally protected liberty interest which would invoke the

protection of the Due Process Clause of the Fourteenth Amendment. See Dickerson v. Cain, 241

F. App’x. 193 (5th Cir. 2007) (holding that the plaintiff failed to show that placement in Camp J

at LSP presents “an atypical or significant hardship beyond the ordinary incidents of prison

life”). The plaintiffs claim here likewise fails to make such a showing, and should be dismissed

for failure to state a claim upon which relief may be granted.

The plaintiff also asserts that certain defendants conspired to discipline the plaintiff until

he agreed to T.B. testing. These allegations are conclusory, and mere conclusory allegations of a

conspiracy to violate the plaintiffs constitutional rights are not cognizable under § 1983. See

Hale v. Harney, 786 F.2d 688, 690 (5th Cir. 1986); Decker v. Dunbar, 633 F. Supp. 2d 317, 358

(E.D. Tex. 2008). The plaintiffs complaints that he was the object of verbal abuse, harassment,

and threats by certain defendants, without more, are also not actionable under § 1983. See

Orange v. Ellis, 348 F. App’x. 69, 72 (5th Cir. 2009); and McFadden v. Lucas, 713 F.2d 143,

146 (5th Cir. 1983).

Case 3:14-cv-00204-JWD-RLB

Document 20

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Finally, to the extent that the plaintiffs allegations may be interpreted as seeking to

invoke the supplemental jurisdiction of this court over potential state law claims, a district court

may decline the exercise of supplemental jurisdiction if a plaintiffs state law claims raise novel

or complex issues of state law, if the claims substantially predominate over the claims over

which the district court has original jurisdiction, if the district court has dismissed all claims over

which it had original jurisdiction, or for other compelling reasons. 28 U.S.C. § 1367. In the

instant case, having recommended that the plaintiffs federal claims be dismissed, the Court

further recommends that the exercise of supplemental jurisdiction be declined.

RECOMMENDATION

It is recommended that the Court decline the exercise of supplemental jurisdiction over

any potential state law claims, and that this action be dismissed, with prejudice, as legally

frivolous and for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.

§§ 1915(e) and 1915A.2

Signed in Baton Rouge, Louisiana, on May 23, 2017.

UNITED STATES MAGISTRATE JUDGE

2 The plaintiff is advised that 28 U.S.C. § 1915(g) provides that, “In no event shall a prisoner bring a civil action or

appeal a judgment in a civil action or proceeding under this section [Proceedings in forma pauperis] if the prisoner

has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a

court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim

upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.”

Case: 19-30063

Document: 00515100329

Page: 1

Date Filed: 09/03/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-30063

MITCHELL STEVENS,

Plaintiff - Appellant

v.

DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY;

CHAD MANSINNI, Warden; TROY PORET, Warden; UNKNOWN

DUPONT, Warden; ORVILLE LAMARTIANEER, Warden; UNKNOWN

CRUZ, Colonel; UNKNOWN ROBINSON, Colonel; CHAD ORBRA,

Lieutenant Colonel; SHELTON SCALES, Major; WILLIAM ROSSO, Captain;

MAGAN SHIPLEY, Class. Officer; UNKNOWN FAIRCHILD, Class. Officer;

UNKNOWN BOUDROUX, Sec. Officer Staff Sergent; UNKNOWN PIGEON,

Lieutenant; SHERWOOD PORET, Registered Nurse; MELANIE BARTON,

Registered Nurse; JAMES LABLANC, Sec.; ALL WHO ADMINISTER

SHOTS SINCE 2002; AMY ZAUNBRACHER, Registered Nurse,

Defendants - Appellees

Appeal from the United States District Court

for the Middle District of Louisiana

ON PETITION FOR REHEARING

Before HIGGINBOTHAM, SOUTHWICK, and WILLETT, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing is DENIED.

ENTERED FOR THE COURT:

/s/ Leslie H. Southwick

UNITED STATES CIRCUIT JUDGE