Petition for Writ of Certiorari — Dennis Ray Davis, Jr., Petitioner v. Commissioner, Caddo Parish, et al.

Case: 21-30264

Document: 00516178597

Page: 1

Date Filed: 01/25/2022

tHmteti States Court of Appeals

for tfje Jftftlj Circuit

No. 21-30264

Dennis Ray Davis, Jr.,

Plaintiff—Appellant,

versus

Commissioner Caddo Parish; Woody Wilson,

Individually and in his Official Capacity; James R.

Demouchet; Foster Campbell, Individually and in his

Official Capacity; Steve Prator; et al,

Defendants—Appellees.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:17-CV-1269

Before Jones, Duncan, and Engelhardt, Circuit Judges.

Per Curiam:

A member of this panel previously DENIED Appellant’s motion for

reconsideration of the clerk’s denial of the motion to reopen. The panel has

considered Appellant’s motion for reconsideration.

IT IS ORDERED that the motion is DENIED.

Case: 21-30264

Document: 00516173164

Page: 1

Date Filed: 01/20/2022

fHutteb States Court of Appeals:

for tfjc jFtftfj Circuit

No. 21-30264

Dennis Ray Davis, Jr.,

Plaintiff—Appellant,

versus

Commissioner Caddo Parish; Woody Wilson,

Individually and in his Official Capacity; James R.

Demouchet; Foster Campbell, Individually and in his

Official Capacity; Steve Prator; et al,

Defendants—Appellees.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:17-CV-1269

ORDER:

IT IS ORDERED that Appellant’s motion for clarification of the

Court’s order of December 23,2021, denying the motion for reconsideration

of the denial of the motion to reopen the appeal is DENIED.

Case: 21-30264

Document: 00516173164

Page: 2

Date Filed: 01/20/2022

No. 21-30264

Kurt D. Engelhardt

United States Circuit Judge

2

Case: 21-30264

Document: 00516142888

Page: 1

Date Filed: 12/23/2021

®mtetr States! Court of appeals

for tfje Jftftf) Circuit

No. 21-30264

Dennis Ray Davis, Jr.,

Plaintiff—Appellant,

versus

Commissioner Caddo Parish; Woody Wilson,

Individually and in his Official Capacity; James R.

Demouchet; Foster Campbell, Individually and in his

Official Capacity; Steve Prator; et al,

Defendants—Appellees.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:17-CV-1269

ORDER:

On December 6, 2021, the clerk denied appellant’s motion to reopen

the appeal. Upon consideration of appellant’s motion for reconsideration,

IT IS ORDERED that the motion is DENIED.

Case: 21-30264

Document: 00516142888

Page: 2

Date Filed: 12/23/2021

No. 21-30264

Kurt D. Engelhardt

United States Circuit Judge

2

Case: 21-30264

Document: 00516117687

Page: 1

Date Filed: 12/06/2021

United States Court ofAppeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

LYLE W. CAYCE

CLERK

TEL. 504-310-7700

600 S. MAESTRI PLACE,

Suite 115

NEW ORLEANS, LA 70130

December 06, 2021

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:

No. 21-30264

Davis v. Commissioner Caddo Parish

USDC No. 5:17-CV-1269

The court has denied the motion to reopen case in this case.

Sincerely,

LYLE W.

By:

______

Monica R. Washington, Deputy Clerk

504-310-7705

Mr. Dennis Ray Davis Jr.

Case: 21-30264

Document: 00516039196

Page: 1

Date Filed: 10/01/2021

®niteb States; Court of Appeals

for tlje Jftftf) Circuit

No. 21-30264

A True Copy

Certified order issued Oct 01, 2021

dwl< W. OtHjU.

Dennis Ray Davis, Jr.,

Clerk, U.S. Court of Appeals, Fifth Circuit

Plaintiff—Appellant,

versus

Commissioner Caddo Parish; Woody Wilson,

Individually and in his Official Capacity; James R.

Demouchet; Foster Campbell, Individually and in his

Official Capacity; Steve Prator; et al,

Defendants—Appellees.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:17-CV-1269

CLERK’S OFFICE:

Under 5th Cir. R. 42.3, the appeal is dismissed as of October 1,

2021, for want of prosecution. The appellant failed to timely file the

appellant’s brief.

Case: 21-30264

Document: 00516039196

Page: 2

Date Filed: 10/01/2021

No. 21-30264

LYLE W. CAYCE

Clerk of the United States Court

of Appeals for the Fifth Circuit

By:

Shea E. Pertuit, Deputy Clerk

ENTERED AT THE DIRECTION OF THE COURT

2

Case 5:17-cv-01269-SMH-MLH Document 76 Filed 03/11/21 Page 1 of 16 PagelD #: 747

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

DENNIS RAY DAVIS, JR.

CIVIL ACTION NO. 17-1269-P

VERSUS

CHIEF JUDGE HICKS

WOODY WILSON, ET AL.

MAGISTRATE JUDGE HORNSBY

REPORT AND RECOMMENDATION

In accordance with the standing order of this court, this matter was referred to the

undersigned Magistrate Judge for review, report and recommendation.

STATEMENT OF CLAIM

Before the court is a civil rights complaint and numerous amended complaints and

filings filed in forma pauperis by pro se plaintiff Dennis Ray Davis, Jr. (“Plaintiff’),

pursuant to 42 U.S.C. § 1983.1 This complaint was received and filed in this court on

October 2, 2017. Plaintiff is incarcerated at the Caldwell Correctional Center in Grayson,

Louisiana.

i

Plaintiff names Caddo Parish Commissioner Woody Wilson, James R.

Plaintiffs allegations here are substantially similar to, and arise from the same series of events

as allegations he raised in other closed and pending proceedings: Dennis Ray Davis. Jr. v. SPD.

et al., 17-531 (pending, Plaintiff s claims arising from his conviction and sentence for DWI fourth

offense, that he was maliciously prosecuted and an illegal hold was placed on him, ineffective

assistance of counsel, excessive bond, habeas corpus claims); Dennis Ray Davis. Jr. v. Robert B.

Whyce, et al.. No. 18-0009 (W.D. La. 2018) /dismissing, inter alia. Plaintiffs claims of false

imprisonment arising from his fourth DWI offense); Dennis Ray Davis. Jr. v. Robert B. Wvche,

et al.. No. 17-1230 (W.D. La. 2017) (dismissing Plaintiffs claims, arising from his fourth DWI

offense, that the District Attorney owed him $50,000.00, that he was falsely imprisoned, and that

he was denied bond).

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Demouchet, Foster Campbell, Steve Prator, Philip Raberstiow, Dianne Doughty, Mike

Spence, the Caddo Commisoner Office, the Sheriff Office, the Caddo Parish District

Attorney, James Stewart, Mesika Creel, J. Ruffin, Cheyiel Stild, Sgt. England, Robert

Wyceh, Michael Exsudade, Sgt. Montoya, Roxanna Stone, Deputy Rollpolia, Chery Still,

Michael Pye, Nikkiy Mandillion, John Chirldren, Sherrif s Office Internal Affairs, Seanea

D. Hall, and Mrs. Wanna as defendants.

Plaintiffs complaint is replete with legal jargon and conclusory, disjointed

assertions. He has filed numerous, vague and confusing filings in this matter. This court

ordered Plaintiff to file a restated and amended complaint stating only the facts of his

claims. Plaintiffs amended complaint failed to comply with the court’s order and like his

complaint referred to filings in other actions and legal jargon. His filings are conclusory,

disjointed assertions written in stream of consciousness.

Plaintiff claims he was falsely arrested and imprisoned on August 3, 2016. He

claims he was charged with attempted first degree murder and armed robbery in case

#343728 and bond was set at $500,000. He claims he was not allowed to post bond because

the Caddo Correctional Center jail records showed there was a hold on him. He claims

there was never a hold on him, and his bonding status was incorrectly entered into the

records.

Plaintiff claims he filed more than 150 grievances in the administrative remedy

procedure regarding the errors in the jail records as to his bond status. He claims that

because of the errors he was unable to bond out of jail.

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On February 23, 2017, Judge Brady O’Callahan established that bond had been

adduced in all of Petitioner’s matters and revoked his probation in docket # 339,179 [Doc.

12, p. 13]. He claims he was given credit for time served.

On June 15, 2017, Plaintiff was convicted of Driving While Intoxicated-Fourth

Offense. On September 28, 2017, Plaintiff was sentenced to 23 years imprisonment at hard

labor. Plaintiff claims his conviction and sentence are illegal because his motion to quash

his prior guilty pleas filed on April 13, 2015 was granted on May 5, 2016. He claims his

DWI Fourth conviction was illegal because of double jeopardy.

He claims District

Attorney James Stewart withheld exculpatory evidence of DWI Second Offense in case

#329219 in order to justify his incarceration since August 3, 2016. He claims the Caddo

District Attorney Office knowingly offered false and misleading reports of Detective

Mayfield.

Plaintiff claims he was unable to hire the counsel of his choice because of his false

imprisonment and involuntary slavery and he received ineffective assistance of counsel.

He claims his appointed attorney Carlos Prudhomme and the Public Defender Board did

not investigate the errors of Caddo Correctional Center regarding the hold on him. He

claims his attorney failed to file a motion to suppress. He claims his attorney did not meet

with him at the jail. He claims his attorney had no strategy during the trial and sentencing

phases of his criminal proceedings. Plaintiff claims his attorney filed a motion for a sanity

evaluation because he did not believe he had the mental capacity at the time of the offense

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and to understand the proceedings. He claims this motion was harmful and showed bias

and prejudice.

Plaintiff claims Warden Wyche, Clerk of Court Mike Spence, and Dianne Doughty

failed to report corrected information to the District Attorney Office and the Department

of Motor Vehicles.

Plaintiff claims Sgt. Childress ordered him to two days segregation for disciplinary

reasons starting on October 3, 2017 and ending on October 5, 2017. He was charged with

disobeying written or verbal orders from staff and found guilty. He claims Sgt. England

and Warden Wyche failed to investigate his grievance.

Plaintiff claims Micheal Exscude and Micheal Pye refused to allow him to make a

formal police report regarding damage to his properties and stolen equipment and truck.

Plaintiff claims his character was defamed.

He claims he suffered extreme

embarrassment, humiliation, loss of family reputation, mental anguish, emotional distress,

loss of love, affection, and loss of income. He claims the local media was the illegal forum

for the Caddo Sheriffs Department in case #33179. He claims there was a news article

dated March 2, 2016 entitled “Contractor takes advantage of the elderly.” He claims this

news story was a lie.

Plaintiff claims appointed attorney Michael Enright provided him with ineffective

assistance of counsel in criminal case #342728 regarding the charges of attempted first

degree murder and armed robbery. He claims the Public Defender’s Office is working

against him.

He claims the Public Defender’s Office is part of the Caddo District

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Attorney’s Office and the Judiciary. He claims Enright failed to file pretrial motions and

apply meaningful trial strategies. He claims Enright failed to challenge the eyewitness

testimony. He claims Enright failed to mitigate the evidence of the psychiatrist reports.

Plaintiff Judge O’Callahan denied him the right to speak in court.

Accordingly, Plaintiff seeks a default judgment, a change of venue, monetary and

punitive damages, dismissal of attempted first degree murder and armed robbery charges,

transfer of criminal #33179 to civil court, and his release from incarceration.

LAW AND ANALYSIS

Bond Denial and Wrongful Incarceration

Plaintiff claims he was falsely arrested and imprisoned on August 3, 2016 for

attempted first degree murder and armed robbery and denied bond because of a hold. He

claims there was no hold on him. Plaintiff has no absolute constitutional right to bail. See

Broussard v. Par, of Orleans. 318 F.3d 644, 651 (5th Cir. 2003); United States v. Torres.

566 F. Supp. 2d 591, 600 (W.D. Tex. 2008). Furthermore, to the extent Plaintiff seeks

release from custody, his claim should be dismissed. Release from custody is not available

through a civil rights action. See Davis v. Wvche. 5:17-CV-1230; Calderon v. Ashmus.

523 U.S. 740, 747 (1998) (any claim attacking the validity or duration of confinement must

be raised in a habeas corpus petition); Preiser v. Rodriguez. 411 U.S. 475, 500 (1973).

Accordingly, Plaintiff s civil rights claims regarding his bond should be dismissed

as frivolous and for failure to state a claim on which relief can be granted.

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Heck

Plaintiff claims he was wrongly convicted and sentenced for DWI fourth offense in

case number 341453 because of the actions of Defendants. He also claims he was wrongly

convicted of armed robbery and attempted first degree murder. He claims his probation

was revoked.

Plaintiff is seeking monetary damages for allegedly unconstitutional

convictions and sentences. The United States Supreme Court held that in order to recover

monetary compensation for an allegedly unconstitutional conviction or sentence or for

"harm caused by actions whose unlawfulness would render a conviction or sentence

invalid," a prisoner must show that the conviction or sentence has been "reversed on direct

appeal, expunged by executive order, declared invalid by a state tribunal authorized to

make such determination, or called into question by a federal court's issuance of a writ of

habeas." Heck v. Humphrey. 512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372 (1994). Heck

involved a civil rights claim brought by a state prisoner. The Court dismissed the Section

1983 suit until plaintiff could demonstrate that his conviction or sentence had been

invalidated. The holding in Heck has been extended to parole and probation revocation

proceedings. Littles v. Bd. of Pardons and Paroles Div.. 68 F.3d 122, 123 (5th Cir. 1995);

Jackson v. Vannov. 49 F.3d 175, 177 (5th Cir. 1995); see also Cougle v. County of DeSoto. 303

Fed.Appx. 164, 165 (5th Cir. 2008). When a claim comes within the parameters of the Heck

teachings, it is not cognizable under 42 U.S.C. § 1983 so long as the validity of the

conviction or sentence has not been called into question as defined therein, which requires

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dismissal of claims not meeting its preconditions for suit. See Johnson v. McElveen. 101

F.3d 423, 424 (5th Cir. 1996).

Plaintiff is seeking monetary damages for civil rights violations under Section 1983;

therefore, he must prove his conviction and/or sentence and/or revocation have been

invalidated. He has not met this precondition and his complaint must be dismissed until

such time that he can demonstrate that his conviction and/or sentence and/or revocation

have been invalidated.

Disciplinary Conviction and Sentence

Plaintiff claims he was sentenced to two day segregation for disciplinary reason. He

claims Sgt. England and Warden Wyche failed to investigate his grievance. Plaintiff is

seeking monetary damages for an allegedly unconstitutional disciplinary board conviction

and sentence. As previously stated, the United States Supreme Court held that in order to

recover damages for an allegedly unconstitutional conviction or sentence or for "harm

caused by actions whose unlawfulness would render a conviction or sentence invalid," a

prisoner must show that the conviction or sentence has been "reversed on direct appeal,

expunged by executive order, declared invalid by a state tribunal authorized to make such

determination, or called into question by a federal court's issuance of a writ of habeas."

Heck v, Humphrey. 512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372 (1994). Heck involved a

civil rights claim brought by a state prisoner. The Court dismissed the Section 1983 suit

until plaintiff could demonstrate that his conviction or sentence had been invalidated. In

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Edwards v. Balisok. 520 U.S. 641,117 S.Ct. 1584 (1997), the Supreme Court approved the

application of the Heck doctrine to prison disciplinary proceedings.

When a claim comes within the parameters of the Heck teachings, it is not

cognizable under 42 U.S.C. § 1983 so long as the validity of the conviction or sentence has

not been called into question as defined therein, which requires dismissal of claims not

meeting its preconditions for suit. See Johnson v. McElveen. 101 F.3d 423, 424 (5th Cir.

1996).

Plaintiff is seeking monetary damages for civil rights violations under Section 1983;

therefore, he must prove that his disciplinary board conviction and/or sentence have been

invalidated. He has not met this precondition and his complaint must be dismissed until

such time that he can demonstrate that his disciplinary board conviction and/or sentence

have been invalidated.

Ineffective Assistance of Counsel

Plaintiff claims he received ineffective assistance of counsel. He claims Carlos

Prudhomme and the Public Defender Board failed to investigate the hold on him. He

claims Prudhomme failed to file a motion to suppress. He claims Prudhomme failed to

meet him at the jail. He claims Prudhomme had no trial or sentencing strategy. He claims

Prudhomme filed a motion for a sanity hearing which was harmful and showed bias and

prejudice.

Plaintiff claims Michael Enright provided him ineffective assistance of counsel in

his criminal proceedings for the charges of attempted first degree murder and armed

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Document 76 Filed 03/11/21 Page 9 of 16 PagelD #: 755

robbery. He claims the Public Defender Office is working against him. He mistakenly

claims the Public Defender Office is part of the District Attorney’s Office and the Judiciary.

He claims Enright failed to file pretrial motions and apply meaningful trial strategies. He

claims Enright failed to challenge the eyewitness testimony and mitigate the evidence of

the psychiatrist reports.

Section 1983 prescribes redress for conduct by any person who, under color of state

law, acts to deprive another person of any right, privilege or immunity secured by the

Constitution and laws of the United States. 42 U.S.C. § 1983. A plaintiff in a civil rights

suit must show that the conduct complained of was committed by a person acting under

„ color of state law. Neither privately obtained nor court appointed defense attorneys act

under color of state law for purposes of Section 1983.

Both a retained and a court appointed attorney serve their client, the accused; they

do not serve the state. They serve a private function for their client that follows from the

very nature of the attorney-client relationship and for which no state office or authority are

needed. Hence, neither a retained nor a court appointed attorney acts under color of state

law and cannot be held liable under Section 1983. See Polk County v. Dodson. 454 U.S.

312 (1981); Ellison v. DeLa Rosa. 685 F.2d 959, 960 (5th Cir. 1982) (citing Polk County.

supra): United States ex rel. Simmons v. Zibilich. 542 F.2d 259, 261 (5th Cir. 1976);

Nelson v. Stratton. 469 F.2d 1155 (5th Cir. 1972); Richardson v. Fleming. 651 F.2d 366

(5th Cir. 1981); Mills v. Criminal District Court #3. 837 F.2d 677 (5th Cir. 1988)(citing

Nelson, supra).

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Accordingly, Plaintiffs civil rights claims against Carlos Prudhomme, the Public

Defender Board, and Michael Enright should be dismissed as frivolous.

State Actors - Local Media

Plaintiff claims the local media was the illegal forum for the Caddo Parish Sheriffs

Department. He claims the stories about him in the local media were false, specifically

regarding docket #33179. He claims the false stories defamed his character and caused

him to suffer extreme embarrassment, humiliation, loss of family reputation, mental

anguish, emotional distress, loss of love, affection, and income. He does not name the

media outlets as defendants, but he does raise claims against them in his complaint.

Section 1983 prescribes redress for conduct by any person who, under color of state

law, acts to deprive another person of any right, privilege, or immunity secured by the

Constitution and laws of the United States. See 42 U.S.C. § 1983. A plaintiff in a civil

rights suit must show that the conduct of which he is complaining was committed by a

person acting under color of state law. “[T]he under-color-of-state-law element of § 1983

excludes from its reach merely private conduct, no matter how discriminatory or

wrongful[.]” Am. Mfrs. Mut. Ins. Co. v. Sullivan. 526 U.S. 40, 50 (1999) (internal

quotation marks and quoted sources omitted).

The local media of which Plaintiff complains are manifestly, private

citizens/entities, and Plaintiff does not offer any plausible allegations to establish that they

acted under color of state law. See Lavergne v. Turk. 583 F. App'x 367, 368 (5th Cir. 2014)

(observing that Independent Media group was a private citizen); Bui Phu Xuan v. Fort

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Worth Star Telegram. 277 F. App'x 452, 454 (5th Cir. 2008) (observing that the StarTelegram, which allegedly published two libelous articles about the appellant, was a

private party). Plaintiff makes no allegations that the local media conspired or acted in

concert with state actors.

Accordingly, Plaintiffs civil rights claims against the local media be dismissed as

frivolous and for failure to state a claim on which relief can be granted.

Judge Brady O’Callahan

Plaintiff claims Judge O’Callahan did not allow him to speak in court. Plaintiff

cannot allege claims against Judge Brady O’Callahan. It is well established that judges

enjoy absolute immunity from liability for damages arising out of performance of their

judicial duties, regardless of bad faith. Pierson v. Ray. 386 U.S. 547, 87 S.Ct. 1213 (1967);

Stump v. Sparkman. 435 U.S. 349, 98 S.Ct. 1099 (1978). Acts are judicial in nature if they

are (1) normal judicial functions (2) that occurred in the judge’s court or chambers and

were (3) centered around a case pending before a judge. Brewster v. Blackwell, 692 F.2d

387, 396-97 (5th Cir. 1982). The conduct challenged by Plaintiff unequivocally falls

within the judge’s authority as judicial officer of the court and in the ordinary exercise of

judicial duties.

Accordingly, Plaintiffs civil rights claims against Judge Brady O’Callahan should

be dismissed with prejudice as frivolous.

District Attorney James Stewart and Assistant DA Mekesha Smith Creal

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Plaintiff claims District Attorney James Stewart withheld exculpatory evidence of

DWI Second Offense.

He claims the District Attorney’s Office offered false and

misleading reports of Detective Mayfield. Prosecutors have absolute immunity when

acting in a quasi-judicial mode. Imbler v. Pachtman. 424 U.S. 409, 106 S.Ct. 984, 47

L.Ed.2d 128 (1976); Geter v, Fortenberry. 849 F.2d 1550 (5th Cir. 1988). The Fifth Circuit

has repeatedly recognized the purpose of the immunity defense is to protect public officials

from undue interference with their duties and from disabling threats of liability. Geter, 849

F.2d at 1552. Absolute immunity is immunity from suit rather than from liability. Elliot

v. Perez. 751 F.2d 1472 (5th Cir. 1985). The Fifth Circuit "has likewise accepted the

premise that the protected official should be sheltered from trial and pre-trial preparation

as well as liability." Id. at 1478.

The conduct challenged unequivocally falls within the authority of the District

Attorney James Stewart and Assistant District Attorney Mekesha Smith Creal, as quasi­

judicial officers of the court and in the ordinary exercise of their quasi-judicial duties.

Accordingly, Plaintiffs civil rights claims against the Caddo Parish District

Attorney James Stewart and Assistant District Attorney Mekesha Smith Creal should be

dismissed with prejudice as frivolous.

Clerk of Court Mike Spence, Dianne Doughty, and Warden Wyche

Plaintiff claims Mike Spence, Dianne Doughty, and Warden Wyche failed to report

corrected information to the District Attorney Office and the Department of Motor

Vehicles.

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A Section 1983 plaintiff has long been required to plead his case with "factual detail

and particularity," not mere conclusory allegations. Elliot v. Perez. 751 F.2d 1472, 1473

(5th Cir. 1985); Hale v. Harney, 786 F.2d 688 (5th Cir. 1986). The Supreme Court has

abolished this heightened pleading standard for claims against municipalities, Leatherman

v. Tarrant County Narcotics Intelligence and Coordination Unit. 507 U.S. 163, 113 S.Ct.

1160 (1993), but the requirement remains firmly in place for claims against individual

public officials. See Schultea v. Wood. 47 F.3d 1427 (5th Cir. 1995) (en banc).

In this case, Plaintiff has named individuals as defendants and is therefore required

to give factual details regarding his alleged constitutional rights violations. Plaintiff has

failed to do so even after amending his complaint.

As such, Plaintiffs civil rights complaint against Clerk of Court Mike Spence,

Dianne Doughty and Warden Wyche should be dismissed as frivolous.

Police Report

Plaintiff claims he was denied the right to make a formal police report regarding

damage to his properties and stolen equipment and truck. Plaintiff in incorrect that he has

a right to make a formal police report. Furthermore, the lack of a police report does not

preclude Plaintiff from filing a civil action regarding the damage to his properties and

stolen equipment and truck.

The due process clause of the Fourteenth Amendment affords protection against

government officials depriving a person of her life, liberty, or property. But it generally

does not guarantee that the government will protect citizens from each other. Whitley v.

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Hanna, 726 F.3d 631, 651 (5th Cir. 2013), citing Town of Castle Rock v. Gonzales. 125

S.Ct. 2796 (2005), and DeShanev v. Winnebago County Department of Social Services,

109 S.Ct. 998 (1989). Accordingly, courts have recognized that the “victim of a crime has

no constitutionally protected interest in the prosecution or pursuit of a perpetrator.” Payne

v. Jefferson Parish Sheriffs Department. 2014 WL 1154482, (E.D. La. 2014).

The Supreme Court has also recognized that “a private citizen lacks a judicially

cognizable interest in the prosecution or nonprosecution of another.” Linda R.S. v. Richard

D., 93 S.Ct. 1146, 1149 (1973). Accordingly, an alleged sexual assault victim who

complained a district attorney failed to investigate the alleged perpetrator’s responsibility

for the crime lacked standing for action against the District Attorney.

Lefebure v.

D'Aquilla. 987 F.3d 446 (5th Cir.2021). A prisoner who complained that a sheriff did not

file criminal charges against guards who beat him failed to state an actionable claim. Oliver

v. Collins. 914 F.2d 56, 60 (5th Cir. 1990). See also Lewis v. Jindal. 368 Fed. Appx. 613,

614 (5th Cir. 2010) (“It is well-settled that the decision whether to file criminal charges

against an individual lies within the prosecutor's discretion, and private citizens do not have

a constitutional right to compel criminal prosecution.”).

Accordingly, Plaintiffs claims should be dismissed as frivolous and for failure to

state a claim.

CONCLUSION

Because Plaintiff filed this proceeding in forma pauperis ("IFP"), if this court finds

Plaintiffs complaint to be frivolous, it may dismiss the complaint as such at any time,

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before or after service of process, and before or after answers have been filed. See 28

U.S.C. § 1915(e); Green v. McKaskle. 788 F.2d 1116, 1119 (5th Cir. 1986); Spears v.

McCotter. 766 F.2d 179, 181 (5th Cir. 1985). District courts are vested with extremely

broad discretion in making a determination of whether an IFP proceeding is frivolous and

may dismiss a claim as frivolous if the IFP complaint lacks an arguable basis either in law

or in fact. See Hicks v. Gamer. 69 F.3d 22 (5th Cir. 1995); Booker v. Koonce. 2 F.3d 114

(5th Cir. 1993); Neitzke v. Williams. 490 U.S. 319, 109 S.Ct. 1827 (1989).

Accordingly;

IT IS RECOMMENDED that Plaintiffs civil rights claims seeking monetary

damages for his allegedly unconstitutional convictions, sentences, and revocations be

DISMISSED WITH PREJUDICE as frivolous under 28 U.S.C. § 1915(e) until such time

as the Heck conditions are met. IT IS FURTHER RECOMMENDED that Plaintiffs

remaining civil rights claims be DISMISSED WITH PREJUDICE as frivolous under 28

U.S.C. § 1915(e). IT IS FURTHER RECOMMENDED that this action—insofar as it

seeks the dismissal of the criminal convictions, sentences, and revocations and his

immediate release—be DISMISSED for failing to state a claim for which relief may be

granted pursuant to Section 1983.

OBJECTIONS

Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 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, unless an

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Case 5:17-cv-01269-SMH-MLH Document 76 Filed 03/11/21 Page 16 of 16 PagelD #: 762

extension of time is granted under Fed. R. Civ. P. 6(b). A party may respond to another

party’s objection within fourteen (14) days after being served with a copy thereof. Counsel

are directed to furnish a courtesy copy of any objections or responses to the District Judge

at the time of filing.

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

recommendations set forth above, 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

proposed factual findings and legal conclusions that were accepted by the district court and

that were not objected to by the aforementioned party. See Douglas v. U.S.A.A.. 79 F.3d

1415 (5th Cir. 1996) (en banc).

THUS DONE AND SIGNED, in chambers, in Shreveport, Louisiana, on this 11th

day of March, 2021.

n—-f

Mark L. Hornsby

U.S. Magistrate Judge

Page 16 of 16

1

I

Additional material

from this filing is

available in the

Clerk's Office.