Hamburg v. Rosso et al

ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
KEVIN T. HAMBURG (#624781) 	CIVIL ACTION NO.
VERSUS 	25-420-SDD-EWD
WILLIAM ROSSO, ET AL.
NOTICE
Please take notice that the attached Magistrate Judge’s Report has been filed with the Clerk
of the U. S. District Court.
In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the
attached report to file written objections to the proposed findings of fact, conclusions of law, and
recommendations set forth 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 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 December 10, 2025.
S
Case 3:25-cv-00420-SDD-EWD Document 8 12/10/25 Page 1 of 8

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
KEVIN T. HAMBURG (#624781) 	CIVIL ACTION NO.
VERSUS 	25-420-SDD-EWD
WILLIAM ROSSO, ET AL.
MAGISTRATE JUDGE’S REPORT, RECOMMENDATION, AND ORDER
Before the Court is the Complaint and Motion for Preliminary Injunction of Plaintiff Kevin
T. Hamburg (“Hamburg”), who is representing himself and who is incarcerated at the Louisiana
State Penitentiary in Angola, Louisiana.1 	Based on the screening required under 28 U.S.C. §
1915A, and allowed by § 1915(e), it is recommended that all Hamburg’s claims be dismissed
without prejudice for failure to exhaust before filing this suit as required by the 42 U.S.C. 1997e
and that the Motion for Preliminary Injunction be denied.
I. 	BACKGROUND
On May 12, 2025, Hamburg filed this suit under 42 U.S.C § 1983, alleging that he was
retaliated against between the months of March and May 2025.2 Hamburg seeks money damages
and injunctive relief.3
1 R. Docs. 1, 4. Documents in the Court record are referred to as “R. Doc. __.”
2 R. Doc. 1, pp. 4-5. Based on the prison mailbox rule, which generally applies to the court filing of documents by
Louisiana inmates representing themselves, an inmate’s pleadings are considered filed on the date they are presented
to prison officials or placed into the prison mailing system for transmission to the court, not on the date that they are
ultimately received or docketed by the court. See Cooper v. Brookshire, 70 F.3d 377, 379-80 (5th Cir. 1995); Vicks v.
Griffin, 07-5471, 2008 WL 553186, at *3 (E.D. La. Feb. 28, 2008). A court generally presumes that the date the inmate
signed and dated his Complaint is the date he gave it to prison officials for mailing to the courts. See Toomer v. Cain,
09-7446, 2010 WL 4723365, at n.3 (E.D. La. July 30, 2010) (finding that, “[g]enerally, a court will look to the date a
prisoner signed his pleading”). Because Hamburg’s Complaint is signed May 12, 2025, that is the date it is considered
filed.
3 R. Doc. 1, p. 6.
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II. 	LAW & ANALYSIS
A. Standard of Review
This Court may dismiss a claim by a prisoner against a governmental entity or an officer
or employee of a governmental entity, or by any other plaintiff who has been granted IFP status, if
the claim is frivolous, malicious, or fails to state a claim upon which relief may be granted.4 The
screening process gives the court the ability early in the case to separate those claims that may
have merit from those that lack a basis in law or in fact. Dismissal of any claim that does not pass
screening may be made before service of process or before any defendant has answered. Hamburg
has sued prison employees, so his claims are subject to the screening process.
To determine whether a complaint fails to state a claim for purposes of screening under §§
1915(e) and/or 1915A, courts apply the same standard used for dismissal under Federal Rule of
Civil Procedure 12(b)(6).5 	This means the court must accept all well-pleaded facts as true and
view them in the light most favorable to the plaintiff.6 “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’”7 “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”8
For a complaint to survive dismissal, it must contain enough factual information to raise a
4 28 U.S.C. §1915(e) authorizes dismissal of claims that are frivolous, malicious, or fail to state a claim where the
plaintiff was allowed to file suit as a pauper, i.e., without prepaying the filing fee (“IFP”). 28 U.S.C. §1915A authorizes
dismissal of claims by prisoners against a governmental entity or employee of a governmental entity for the same
reasons regardless of the pauper status of the plaintiff. Hamburg was granted IFP status on May 16, 2025, so both
statutes apply. R. Doc. 3.
5 Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (recognizing that the standards for determining whether a
complaint fails to state a claim for relief are the same under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A and Fed. R.
Civ. P. 12(b)(6)).
6 Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
7 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
8 Id.
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reasonable expectation that discovery will provide evidence of each element of the plaintiff’s
claim(s).9
B. Hamburg Failed to Exhaust Administrative Remedies
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought
with respect to prison conditions under § 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.”10 The PLRA’s exhaustion requirement is mandatory, and unexhausted
claims may not be brought in federal court.11 When a prisoner fails to exhaust his administrative
remedies, he fails to state a claim upon which relief may be granted 12 	Generally, a prisoner’s
failure to exhaust administrative remedies is an affirmative defense under the PLRA and prisoners
“are not required to specially plead or demonstrate exhaustion in their complaints.”13 However, a
district court may dismiss a case for failure to state a claim on its own motion based on failure to
exhaust “if the complaint itself makes clear that the prisoner failed to exhaust.”14
In Louisiana, an inmate must follow a two-step Administrative Remedy Procedure
(“ARP”) process to exhaust administrative remedies before filing suit in federal court. The ARP
process is found in the Louisiana Administrative Code under Title 22, Part I, § 325. An inmate
begins the ARP process by completing a request for administrative remedy or by writing a letter
to the warden. 	An ARP screening officer screens the inmate’s request and either accepts the
9 AGEM Management Services, LLC v. First Tennessee Bank Nat. Ass’n, 942 F.Supp.2d 611, 617 (E.D. La. April 25,
2013), citing Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 255-57 (5th Cir. 2009).
10 42 U.S.C. § 1997e(a).
11 Jones v. Bock, 549 U.S. 199, 211 (2007).
12 Hicks v. Garcia, 372 Fed.Appx. 557, 558 (5th Cir. 2010).
13 Jones, 549 U.S. at 216.
14 Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2014).
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request or rejects it for one of the allowed reasons. A request rejected during the screening process
cannot be appealed to the second step. If a request is accepted at the screening level, the warden
must respond on a first-step response form within forty (40) days of receipt of the request (five
days for a complaint under the Prison Rape Elimination Act). If an inmate is not satisfied with the
first-step response, he may proceed to the second step of the ARP process by appealing to the
Secretary of the Department of Corrections (DOC). 	The DOC Secretary must issue a response
within forty-five (45) days from the date the second-step request is received using a second step
response form. An inmate dissatisfied with the second-step response may file suit. Whether or
not a second-step response is received, once ninety days have passed from the date the inmate
begins the ARP process, unless an extension has been granted, the inmate may file suit.
Hamburg’s claims are unexhausted on the face of the Complaint. He alleges he suffered
from retaliatory actions because the contents of a grievance he filed on March 8, 2025 “were
exposed.”15 It appears the first retaliatory action occurred on April 2, 2025. Hamburg filed suit just
over a month later—on May 12, 2025. It is unlikely that Hamburg could have exhausted his
administrative remedies within this short timeframe.16 	Further, Hamburg makes clear in his
Motion for Preliminary Injunction that he has not exhausted administrative remedies and notes
that the two ARPs he filed with respect to this case were rejected on April 10, 2025 and April 16,
2025, respectively.17 Hamburg also admits in his Complaint that he filed an emergency ARP, but
15 R. Doc. 1, p. 4.
16 See Ceasar v. Louisiana Dept. of Public Safety & Corr., No. 17-1691, 2019 WL 6000370, at *3 (M.D. La. Oct. 21,
2019) (dismissing claim as unexhausted on the face of the complaint when the suit was filed nineteen days after
incident occurred).
17 R. Docs. 4-1, pp. 1-2; 4-2; 4-3. This information was voluntarily provided by Hamburg and was not in response to
any question of the Court. Accordingly, using this information to dismiss the Complaint pursuant to § 1915(e) and §
1915A does not sidestep Jones v. Bock, 549 U.S. 199 (2007) and is permissible. See Carbe v. Lappin, 492 F.3d 325,
327-328 (5th Cir. 2007). See Cockerham v. Vannoy, No. 15-630, 2015 WL 7820982, at *2 (M.D. La. Nov. 13, 2015),
report and recommendation adopted, No. 15-630, 2015 WL 7863090 (M.D. La. Dec. 3, 2015) (dismissing complaint
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did not wait for a response because he was “afraid.”18 Fear does not excuse the exhaustion
requirement.19 Accordingly, Hamburg’s Complaint is subject to dismissal on its face as
unexhausted.
C. Hamburg Should Not be Given Further Leave to Amend
“Ordinarily, a pro se litigant should be offered an opportunity to amend his complaint
before it is dismissed.”20 “Granting leave to amend, however, is not required if the plaintiff has
already pleaded her best case.”21 	Further, leave to amend is not required when an amendment
would be futile, i.e., “an amended complaint would still ‘fail to survive a Rule 12(b)(6) motion.’”22
No amendment can cure the fact that Hamburg did not exhaust administrative remedies before
proceeding to this Court, so an opportunity to amend is unnecessary.
D. Hamburg’s Request for Preliminary Injunctive Relief Should be Denied
Also pending is a Motion seeking preliminary injunctive relief.23 “A preliminary injunction
is an extraordinary and drastic remedy; it is never awarded as of right.”24 The decision whether to
on screening for failure to exhaust and noting “[p]laintiff's ARP was rejected at the First Step of the administrative
process as being procedurally deficient because he complained of ‘multiple issues,’ and the plaintiff did not correct
the deficiency by re-submitting his ARP in proper form. Plaintiff's substantive claims were not administratively
addressed or exhausted at either the First or the Second Step of the administrative process.”).
18 R. Doc. 1, p. 5.
19 Dove v. Shaw, No. 14-27, 2015 WL 5254069, at *3 (S.D. Miss. Sept. 9, 2015) (“allegation [of fear] is insufficient
to excuse the mandatory duty to comply with the exhaustion requirements in the PLRA”) (citing Randall v. Nash, 505
Fed.Appx. 373, 373 (5th Cir. 2013).
20 Wiggins v. Louisiana State University—Health Care Services Division, 710 Fed. Appx. 625, 627 (5th Cir. 2017)
(internal quotation marks omitted).
21 Id.
22 See Stem v. Gomez, 813 F.3d 205, 215-16 (5th Cir. 2016), citing Marucci Sports, L.L.C. v. Nat’l Collegiate Athletic
Ass’n, 751 F.3d 368, 378 (5th Cir. 2014) (quoting Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 994 (5th Cir.
2005)).
23 R. Doc. 4.
24 Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (internal citations and quotations omitted). See also Allied Mktg.
Grp., Inc. v. CDL Mktg., Inc., 878 F.2d 806, 809 (5th Cir. 1989) (preliminary injunctive relief “is an extraordinary
remedy and should be granted only if the movant has clearly carried the burden of persuasion with respect to all four
factors”).
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grant or deny a request for a preliminary injunction is within the sound discretion of the Court.25
At all times, the burden of persuasion to get a preliminary injunction or temporary restraining order
remains with the plaintiff as to each of the four required elements. Specifically, a plaintiff must
establish: (1) a substantial likelihood of prevailing on the merits; (2) a substantial threat of
irreparable injury if the injunction is not granted; (3) the threatened injury outweighs any harm
that will result to the non-movant if the injunction is granted; and (4) the injunction will not
disserve the public interest.26 	If a plaintiff fails to meet his burden on any of the necessary
elements, the Court need not address the other elements.27
Hamburg cannot establish a likelihood of success on the merits at this time because his
claims are unexhausted. If the recommendation to dismiss this matter for failure to state a claim
under 28 U.S.C. §§ 1915(e) and/or 1915A is adopted, the request for an injunction should
necessarily be denied.
RECOMMENDATION
IT IS RECOMMENDED that this case be DISMISSED WITHOUT PREJUDICE for
failure to state a claim pursuant to 28 U.S.C. §§ 1915(e) and 1915A due to Plaintiff Kevin T.
Hamburg’s failure to exhaust administrative remedies before filing suit in this Court, as required
by 42 U.S.C. § 1997e. 28
25 See Allied Mktg. Grp., Inc., 878 F.2d at 809.
26 See Ridgely v. Fed. Emergency Mgmt. Agency, 512 F.3d 727, 734 (5th Cir. 2008).
27 See Roho, Inc. v. Marquis, 902 F.2d 356, 261 (5th Cir. 1990) (declining to address the remaining elements necessary
to obtain a preliminary injunction after finding that the plaintiff failed to show a substantial likelihood of success on
the merits).
28 Hamburg 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.” Should this
Report and Recommendation be adopted, the Ruling in this matter will count as a strike.
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ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE
IT IS FURTHER RECOMMENDED that the Motion for Preliminary Injunction be
DENIED. 29
ORDER
Considering the foregoing recommendation, IT IS ORDERED that the Motion seeking
appointment of counsel is DENIED,30 without prejudice to reurging if the recommendation for
dismissal of the case is not adopted.
Signed in Baton Rouge, Louisiana, on December 10, 2025.
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29 R. Doc. 4.
30 R. Doc. 7.
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