McGown v. Jefferson Parish Sheriff's Office et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JERRELL JHERON MCGOWN 	CIVIL ACTION
VERSUS 	NO. 25-1135
JEFFERSON PARISH SHERIFF’S
OFFICE, ET AL.
SECTION “H”(4)
REPORT AND RECOMMENDATION
This matter was referred to a United States Magistrate Judge to conduct a hearing,
including 	an 	evidentiary 	hearing, 	if 	necessary, 	and 	to 	submit 	proposed 	findings 	and
recommendations for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), § 1915e(2), and
§ 1915A, and as applicable, 42 U.S.C. § 1997e(c)(1) and(2). On July 15, 2025, the Court
conducted a hearing pursuant to Spears v. McCotter,1 and its progeny, with the plaintiff
participating by conference telephone. 2 Upon review of the record, the Court has determined that
this matter can be disposed of without an evidentiary hearing.
I. 	Background
A. 	Complaint (ECF No. 1)
Plaintiff Jerrell Jheron McGown (“McGown”) is a pretrial detainee housed in the Jefferson
Parish Correctional Center. ECF No. 1, ¶II, at 2. McGown filed this pro se and in forma pauperis
suit pursuant to 42 U.S.C. § 1983 against defendants Jefferson Parish Sheriff’s Office (“JPSO”),
Sheriff Joseph Lopinto, Officer Jerry Ard, Officer Latasha Green, Officer Hector Acosta, Jefferson
Parish Correctional Center (“JPCC”), Ochsner Health, E.M.S. technician Jamie Eschette, and
E.M.S. technician Christopher Settler. Id., ¶III(B)-(G), at 4.
1 766 F.2d 179 (5th Cir. 1985). The purpose of the Spears Hearing is to ascertain what the prisoner alleges occurred
and the legal basis for the claims. The information received is considered an amendment to the complaint or a more
definite statement under Fed. R. Civ. Proc. 12(e). Wilson v. Barrientos, 926 F.2d 480, 482 (5th Cir. 1991).
2 ECF No. 5. Plaintiff was sworn before testifying and the hearing was electronically recorded.
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McGown claims that Officer Jerry Ard used excessive force during his arrest when, after
placing handcuffs on him, Officer Ard slammed him to the ground and punched him several times.
Id. at 5. McGown also states that Officer Ard picked him up off the ground and pushed him around,
causing him to stumble over his own feet. Next, McGown claims that Officer Ard moved him
towards his police unit where he then slammed McGown into the unit several times.
In addition to Officer Ard, McGown claims that during his arrest Officer Hector Acosta
immediately got out of his police unit and slammed him to the ground while punching him several
times and giving no direct verbal commands. Id. at 5. He states Officer Acosta placed his knee
onto McGown’s neck using all of his body weight and cut off his airway while placing his other
knee on McGown’s back. McGown claims he advised Officer Acosta that he could not breathe,
but that Officer Acosta ignored him and pressed harder. McGown states that Officer Latasha Green
told Officer Acosta to “get off him, you’re going to kill him.” McGown states that Officer Green
used excessive force by tasing him several times while he was handcuffed in the back of a police
unit.
Further, McGown alleges that, while in the back of an ambulance, Officer Green gave a
hand signal to E.M.S. technician Jamie Eschette. Id. at 6. After signaling, McGown claims that
Jamie Eschette placed an Automated External Defibrillator on him, turned it up the maximum
shock, and began to shock him. McGown states he pulled three of the six points of contact out,
therefore stopping some of the shock. Additionally, McGown states that Oschner Health medical
staff violated his rights by taking his blood and giving samples to the JPSO officers without a
warrant or his consent.
In an unrelated incident related to his confinement, McGown states that JPCC failed to
protect him which resulted in him being stabbed by another inmate and taken to University Medical
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Center. Id. at 6. McGown also claims that JPCC failed to book him properly and that he was placed
into JPCC on charges but was not booked on the charges until six months later.
As relief, McGown seeks compensation for loss of wages, medical damages, punitive
damages, unjustly imperiling his job and interrupting sources of income, imperiling family
relationships, false imprisonment, violation of certain rights, mental anguish, monetary injunctive
relief, physical and emotional distress, and failure to protect in the institution. Id., ¶V, at 7.
B. 	Spears Hearing
During the Spears hearing, McGown testified that on the night of June 19, 2024, officers
alleged they received a call that McGown was drunk and causing a disturbance at the Fast Fuel
Mart located at 831 Whitney Avenue in Gretna, Louisiana. According to McGown, officers alleged
that while at the store he confronted a clerk with a knife. McGown stated that was incorrect, as he
did not have a knife on him. McGown testified he was purchasing a Redbull energy drink when
officers entered the store and told him to place his hands behind his back. McGown stated that he
complied, and officers immediately began using excessive force. Once handcuffed, McGown
testified that Officer Ard slammed his head against the door of the store while opening the door to
bring him outside. Once outside of the store, McGown stated he was swung around by Officer Ard
and while trying to catch his balance, Officer Ard slammed him onto the ground and started
punching him.
As he was on the ground, McGown stated that Officer Acosta pulled up, immediately
exited his patrol unit, and assisted Officer Ard by straddling McGown while placing his knee
between McGown’s head and neck and began punching him. McGown further stated there were
bystanders observing the incident who obtained video footage. McGown testified his mother is in
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possession of the video footage and that he has subpoenaed the store video footage through the
state trial court as part of his defense.
While in the back of the police car, McGown stated he was laying down in the back seat
and Officer Green threatened to tase him if he did not sit up. McGown testified he was laying down
because he was dragged into the patrol unit that way and he had no control over getting up. He
stated that since he could not sit up, Officer Green proceeded to tase him while he was handcuffed
in the back of the patrol unit and, in the process of tasing him, also ended up tasing another officer.
When asked why he claimed Officer Green tased him multiple times in his complaint, McGown
stated he claimed Officer Green tased him multiple times because she kept her hand on the trigger
which left the prongs inside of him which resulted in administering multiple shocks. McGown
testified that Officer Acosta falsified the police report by stating McGown reconfigured the
handcuffs from behind him to in front of him while in the back of the car. McGown stated that was
incorrect, and that Officer Acosta was pulling him out of the car by his hands when he was
handcuffed behind his back, and that Officer Acosta pulled very hard, which resulted in the
handcuffs being reconfigured from behind his back to in front of him. McGown further testified
that he named Sheriff Joseph Lopinto as a defendant because he failed to supervise and properly
train his officers.
After his arrest, McGown testified he requested medical attention due to his head being
slammed into the store door, pain he was experiencing in his head and arms, and skin abrasions.
He stated he named Oschner Health as a defendant because when he was in the back of the
ambulance, Officer Green gave E.M.S. worker Jamie Eschette a hand signal. McGown testified
after Officer Green gave the hand signal, Eschette placed a defibrillator onto him and turned it up
to the max and attempted to shock him. McGown stated that he pulled the leads out before she
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could shock him. He further testified that he named E.M.S. technician Christopher Sattler as a
defendant because he witnessed the incident with Officer Green and Jamie Eschette in the back of
the ambulance.
McGown stated that a blood test was taken, but that no blood alcohol content was noted in
the police report. When asked if there were any narcotics in his system during the incident, he
testified there were not any that day, but that the blood test taken at the hospital did come back
positive for marijuana and benzodiazepine. As a result of the incident, McGown testified he was
charged with simple criminal damage to the officer’s vehicle when he was slammed into the
vehicle and a door handle was broken, disturbing the peace while intoxicated, battery on an officer
with force or violence, and resisting arrest with injury. McGown stated all his charges are still
pending and that he does not have a trial date at this time, as motions filed by his public defender
are still pending.
McGown testified that he named JPCC as a defendant because he was stabbed while in
custody in December of 2024. He stated he was on the pod in the housing area during breakfast
time when another inmate walked up to him and stabbed him in the left shoulder. McGown testified
he does not remember the name of the inmate who stabbed him but that the inmate was shipped
out to another facility as a result of the stabbing. He stated he was taken to the infirmary and then
transported to University Medical Center for care to stop the bleeding from his shoulder.
Further, McGown stated that JPCC failed to book him properly and that he was not brought
before a commissioner until he had been in custody for 15 days and did not receive a bond hearing
within 48 hours of his arrest. He testified that when he was finally brought before the
commissioner, the commissioner did not tell him a bond, but stated that when his family called the
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jail, he did have a bond set. McGown testified when he saw the commissioner he was only told
that the State had filed a bill to accept the charges and then he was arraigned.
II. 	Standards of Review for Frivolousness
Pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A and 42 U.S.C. § 1997e(c), the Court is
required to sua sponte dismiss cases filed by prisoners proceeding in forma pauperis upon a
determination that they are frivolous. The Court has broad discretion in determining the frivolous
nature of the complaint. See Cay v. Estelle, 789 F.2d 318, 325 (5th Cir. 1986), modified on other
grounds, Booker v. Koonce, 2 F.3d 114 (5th Cir. 1993). However, the Court may not sua sponte
dismiss an action merely because of questionable legal theories or unlikely factual allegations in
the complaint.
Under this statute, a claim is frivolous when it lacks an arguable basis either in law or fact.
Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Talib v. Gilley, 138 F.3d 211, 213 (5th Cir.
1998). “A [claim] lacks an arguable basis in law if it is based on an indisputably meritless legal
theory, such as if the complaint alleges the violation of a legal interest which clearly does not
exist.” Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999) (quoting Davis v. Scott, 157 F.3d
882, 889 (5th Cir. 1998)). It lacks an arguable factual basis only if the facts alleged are “clearly
baseless,” a category encompassing fanciful, fantastic, and delusional allegations. 	Denton v.
Hernandez, 504 U.S. 25, 32-33 (1992) (citing Neitzke, 490 U.S. at 327-28). Thus, the Court must
determine whether plaintiff’s claims are based on an indisputably meritless legal theory or clearly
baseless factual allegations. 	Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994); Jackson v.
Vannoy, 49 F.3d 175, 176-77 (5th Cir. 1995); Moore v. Mabus, 976 F.2d 268, 269 (5th Cir. 1992).
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III. 	Analysis
A. 	Improper Defendants
a. 	Jefferson Parish Sheriff’s Office
McGown named JPSO as a defendant. In Louisiana, “a parish sheriff's office is not a legal
entity capable of being sued in a federal civil rights action.” Francis v. Terrebonne Parish Sheriff’s
Office, No. 08-4972, 2009 WL 4730707, at *2 (E.D. La. Dec. 9, 2009) (citing Cozzo v. Tangipahoa
Parish Council-President Government, 279 F.3d 273, 283 (5th Cir. 2002)); Martin v. Davis, No.
06-1770, 2007 WL 763653, at *2 (E.D. La. Mar. 8, 2007) (citing LA. REV. STAT . ANN. § 33:361
and Causey v. Parish of Tangipahoa, 167 F. Supp. 2d 898, 909 (E.D. La. Apr. 12, 2001)). The
same is true of a city police department, which “is merely a department . . . and not a proper party
defendant” in a § 1983 action. Causey, 167 F. Supp. 2d at 909 (citing Norwood v. City of
Hammond, No. 99-879, 1999 WL 777713, at *2 (E.D. La. Sep. 30, 1999)). The State of Louisiana
grants no such legal status to any law enforcement office or department. Liberty Mut. Ins. Co. v.
Grant Parish Sheriff’s Dep’t, 350 So. 2d 236, 238-39 (La. App. 3d Cir. 1977).
Similarly, under federal law, Louisiana’s sheriff’s offices and city police departments are
not considered to be “persons” for purposes of § 1983 liability. Calhoun v. Sanderson, No. 01-
3765, 2003 WL 1595088, *5 (E.D. La. Mar. 25, 2003) (sheriff’s office); Creppel v. Miller, No.
92-2531, 1993 WL 21408, *1 (E.D. La. Jan. 22, 1993) (city police department office); Causey,
167 F. Supp. 2d at 909 (city police department); Melancon v. New Orleans Police Dept., No. 08-
5005, 	2009 	WL 	249741, 	at 	*2 	(E.D. 	La. 	Jan. 	30, 	2009) 	(Order 	adopting 	Report 	and
Recommendation) (citing Montoya v. Taylor, 44 F.3d 1005 n.1 (5th Cir. 1995)) (city police
department).
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Given that JPSO is not a person or suable entity to be held liable under § 1983, McGown’s
claims against JPSO must be dismissed pursuant to 28 U.S.C. § 1915(e), § 1915A as frivolous and
for failure to state a claim upon which relief can be granted.
b. 	Jefferson Parish Correctional Center
McGown named JPCC as a defendant, but it is not a proper defendant for purposes of
§ 1983. 	A plaintiff bringing a § 1983 complaint is required to identify both a constitutional
violation and the responsible person acting under color of state law. Flagg Bros., Inc. v. Brooks,
436 U.S. 149, 156 (1978). OPP, however, is not recognized as a “person” within the meaning of
§ 1983. 	See Douglas v. Gusman, 567 F. Supp. 2d 877, 892 (E.D. La. 2008) (Order adopting
attached Report and Recommendation).
In Louisiana, a jail facility is not an entity “legally empowered to do” anything independent
of either the responsible parish officials or the parish sheriff. Roberts v. Sewerage and Water Bd.
of New Orleans, 634 So. 2d 341, 347 (La. 1994). Because a jail is not a juridical entity under state
law, “a prison or jail or its administrative departments are not entities that can be sued under
Section 1983 . . .” and jails “are not persons for purposes of suit under Section 1983 as the statute
and case law define that term.” Douglas, 567 F. Supp. 2d at 892; see Fed. R. Civ. P. 17(b). As
one division of this Court has noted, a parish jail is “not an entity, but a building.” See Jones v. St.
Tammany Parish Jail, 4 F. Supp.2d 606, 613 (E.D. La. 1998) (dismissing with prejudice the St.
Tammany Parish Jail as an improper defendant); see also Kerr v. Orleans Parish Sheriff's Office
Prison, No. 15-0746, 2015 WL 4755174, at *1 (E.D. La. Aug. 10, 2015).
Consequently, McGown’s claims against JPCC should be dismissed under 28 U.S.C.
§ 1915 and § 1915A as frivolous and for failure to state a claim for which relief can be granted.
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c. 	Sheriff Joseph Lopinto
McGown names Sheriff Joseph Lopinto as a defendant for his purported failure to properly
train and supervise the officers involved in McGown’s arrest.
To succeed on an individual-capacity § 1983 claim, a plaintiff must establish that the
defendant, while acting under color of state law, was personally involved in the deprivation of a
right secured by the laws or constitution of the United States, or that the defendant’s wrongful acts
were casually connected to such a deprivation. James v. Tex. Collin Cnty., 535 F.3d 365, 373 (5th
Cir. 2008). 	“It is not enough for a plaintiff to simply allege that something unconstitutional
happened to him. The plaintiff must plead that each defendant individually engaged in actions that
caused the unconstitutional harm.” Jones v. Hosemann, 812 F. App’x 235, 238-39 (5th Cir. 2020).
A state actor may be liable under § 1983 only if he “was personally involved in the acts causing
the deprivation of his constitutional rights or a causal connection exists between an act of the
official and the alleged constitutional violation.” Douthit v. Jones, 641 F.2d 345 (5th Cir. 1981);
Watson v. Interstate Fire & Casualty Co., 611 F.2d 120 (5th Cir. 1980). McGown does not allege
that Sheriff Lopinto had any personal involvement in the events surrounding his arrest.
In addition, Sheriff Lopinto cannot be held responsible pursuant to § 1983 under any theory
of respondeat superior or simply because an employee or subordinate allegedly violated the
plaintiff’s constitutional rights. See Alton v. Tex. A&M Univ., 168 F.3d 196, 200 (5th Cir. 1999);
see also, Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002) (“Section 1983 does not create
supervisory or respondeat superior liability.”). A supervisory official may be held liable for his
subordinates’ actions only if the named official issued an order or implemented an unconstitutional
policy that causally resulted in plaintiff’s injury. See Johnson v. Moore, 958 F.2d 92, 94 (5th Cir.
1992); Thompson v. Upshur Cnty., 245 F.3d 447, 459 (5th Cir. 1991); Thompkins v. Belt, 828 F.2d
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298, 304 (5th Cir. 1987); see also City of St. Louis v. Praprotnik, 485 U.S. 112, 124-25 (1988).
McGown has not alleged any such level of involvement or liability against Sheriff Lopinto.
Therefore, McGown’s claims against Sheriff Joseph Lopinto must be dismissed pursuant
to 28 U.S.C. § 1915(e) and § 1915A as frivolous and for failure to state a claim for which relief
can be granted.
d. 	Oschner Health and E.M.S. Personnel
McGown named Oschner Health and E.M.S. technicians Jamie Eschette and Christopher
Sattler as defendants. As outlined below, these private entities and actors are not proper defendants
and the claims against them must be dismissed as frivolous and otherwise for failure to state a
claim for which relief can be granted.
A plaintiff bringing a § 1983 complaint is required to identify both a constitutional
violation and the responsible person acting under color of state law. Flagg Bros., Inc. v. Brooks,
436 U.S. 149, 156 (1978). Generally, a suit under § 1983 cannot be brought against a private entity
acting in its private capacity. See Wheat v. Mass, 994 F.2d 273, 275-76 (5th Cir. 1993) (a hospital
does not become a state actor simply due to receipt of public funds and being subject to state
regulation); Lott v. Lopinto, No. 19-14010, 2021 WL 11550132, at *2 (E.D. La. Jan. 29, 2021)
(citations omitted) (“neither Walmart nor its employees are not 	“considered to be acting under
color of state law for purposes of § 1983 liability.”). A non-state or private actor can, however, be
held liable under a § 1983 cause of action if the actor engaged in “a conspiracy with state actors to
violate [the plaintiff’s] constitutional rights.” Tebo v. Tebo, 550 F.3d 492, 496 (5th Cir. 2008); see
Priester v. Lowndes County, 354 F.3d 414, 420 (5th Cir. 2004) (private company not liable under
§ 1983 unless plaintiff alleges and proves an agreement between private and public defendants to
commit an illegal act resulting in a deprivation of the plaintiff’s constitutional rights). Although
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the Court must “treat pro se pleadings more liberally, some facts must be alleged that convince
[the court] that the plaintiff has a colorable claim.” Mills v. Crim. Dist. Ct. No. 3, 837 F.2d 677,
678 (5th Cir. 1988).
Oschner Health, E.M.S. technician Jamie Echette, and E.M.S. technician Christopher
Sattler are all private actors. Further, McGown has not alleged that any of these private defendants
were acting under color of state law and his factual allegations do not provide any basis to conclude
that they acted outside of their private capacities nor in conspiracy with any state actor to violate
his constitutional rights. Any interactions alleged to be observed between Officer Green and
E.M.S. technician Jamie Eschette while in the back of the ambulance by McGown appear to be
conjecture and do not rise to the level of actual conspiracy to violate his constitutional rights.
For these reasons, Oschner Health, E.M.S. technician Jamie Eschette, and E.M.S.
technician Christopher Sattler are all private actors not to be held liable under § 1983. Thus, the
claims against these defendants are frivolous and otherwise fail to state a claim for which relief
can be granted and should be dismissed pursuant to 28 U.S.C. § 1915, § 1915A and 42 U.S.C. §
1997e.
B. 	Excessive Force
McGown asserts claims of excessive force against Officers Ard, Green, and Acosta during
his arrest on June 19, 2024. McGown alleges that Officer Ard slammed his head into the store door
while he was handcuffed and began punching him while on the ground outside the store, Officer
Acosta pinned him to the ground making it hard for him to breathe while outside the store and
began punching him, and that Officer Green tased him while handcuffed for not sitting up in the
back of the patrol unit after officers placed him in the back seat laying down. McGown alleges he
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was not resisting at any point during the arrest and, as a result, requested medical care for injuries
to his head and arms.
McGown does not indicate in his complaint the capacity in which he has named any of
these defendants. 	When this happens, to determine whether a defendant has been sued in his
official or individual capacity, the court must look to the complaint and the course of the
proceedings to determine in which capacity the defendant is sued. Kentucky v. Graham, 473 U.S.
159, 167 n.14 (1985) (“In many cases, the complaint will not clearly specify whether officials are
sued personally, in their official capacity, or both. ‘The course of proceedings’ in such cases
typically indicate the nature of the liability sought to be imposed.”) (citations omitted); Garrett v.
Stephens, 675 F. App’x 444, 447 (5th Cir. 2017) (where complaint did not specifically state
whether plaintiff was suing defendants in their individual or official capacities, the Court
“assume[d] he was pursuing both avenues.”); Hopkins v. Gusman, No. 06-5022, 2007 WL
2407247, at *4 (E.D. La. Aug. 17, 2007) (“In the Fifth Circuit, ‘the allegations in the complaint
must be examined in order to determine the nature of the plaintiff's cause of action.’” (quoting
Parker v. Graves, 479 F.2d 335, 336 (5th Cir.1973)); Forside v. Miss. State Univ., No. 01-438,
2002 WL 31992181, at *5 n.2 (N.D. Miss. 2002) (“While some circuits require rigid pleading
requirements to specify individual or official capacity in section 1983 suits, . . . the Fifth Circuit
looks to the substance of the claim, the relief sought, and the course of proceedings.”). 3
3 Citing other Circuits, one division of this Court has adopted the more rigid rule that “[w]hen a pro se
plaintiff does not specify in his complaint whether a defendant is named in his or her official or individual capacity, it
is generally presumed by operation of law that the defendant is named in his or her official capacity.” Douglas v.
Gusman, 567 F. Supp. 2d 877, 888-89 (E.D. La. 2008) (Order adopting R&R) (citing Egerdahl v. Hibbing Cmty. Coll.,
72 F.3d 615, 619 (8th Cir. 1995); Soper v. Hoben, 195 F.3d 845, 853 (6th Cir. 1999); Wells v. Brown, 891 F.2d 591,
593 (6th Cir. 1989)).
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Reviewing McGown’s complaint, he largely seeks monetary relief against the defendants.
The monetary relief sought is for deprivation of his constitutional rights, loss of wages, mental
anguish, and physical and emotional distress. ECF No. 1, ¶V, at 7. Broadly construing these terms
and the request for monetary compensation, it appears to the Court that McGown intends to sue
the Officers individually for violating his constitutional rights through their intentional use of
excessive force. However, McGown’s claims appear to be inextricably intertwined with his
criminal pretrial detention and are barred by the United States Supreme Court’s doctrine under
Heck v. Humphrey, 512 U.S. 477 (1994).
In Heck, the Supreme Court held that a claim that, in effect, attacks the constitutionality of
a conviction or imprisonment is not cognizable under § 1983 and does not accrue until that
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 corpus.” 	Id. at 486-87. 	The Heck doctrine applies
whether a plaintiff seeks monetary or injunctive relief. Wilkinson v. Dotson, 544 U.S. 74, 81-82
(2005) (under Heck, “a state prisoner’s section 1983 action is barred (absent prior invalidation) -
no matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit
(state conduct leading to conviction or internal prison proceedings) - if success in that action would
necessarily demonstrate the invalidity of confinement or its duration”); Clarke v. Stalder, 154 F.3d
186, 189 (5th Cir. 1998) (citing Edwards v. Balisok, 520 U.S. 641 (1997)).
The Supreme Court applied a modified version of Heck to pretrial detainees in Wallace v.
Kato, 549 U.S. 384, 393-94 (2007). 	In Wallace, the Court explained that, if a pretrial detainee
files civil rights claims related to the validity of a pending criminal proceeding, the best practice
is for the district court to stay the civil rights action until the pending criminal case is resolved to
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determine the impact of the Heck limitations. Id., 549 U.S. at 393-94; see Mackey v. Dickson, 47
F. 3d 744, 746 (5th Cir. 1995) (finding stay of pretrial § 1983 challenges to be the best practice).
The court in Wallace explained:
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 anticipated
criminal trial), it is within the power of the district court, and in accord with
common practice, to stay the civil action until the criminal case or the likelihood of
a criminal case is ended. If the plaintiff is ultimately convicted, and if the stayed
civil suit would impugn that conviction, Heck will require dismissal; otherwise, the
civil action will proceed, absent some other bar to suit.
Wallace, 549 U.S. at 393-94 (citations omitted).
As for McGown’s claims of excessive force, the determination of whether the Heck bar
applies to a § 1983 excessive force claim, “is analytical and fact-intensive, requiring [a court] to
focus on whether success on the excessive force claim requires negation of an element of the
criminal offense or proof of a fact that is inherently inconsistent with one underlying the criminal
conviction.” 	Bush v. Strain, 513 F.3d 492, 497 (5th. Cir. 2008) (footnote omitted). When the
excessive force claim arises from “‘a single violent encounter’ in which the plaintiff insists he was
an innocent party,” Heck would apply to bar the claim. Lee v. Ard, 785 F. App’x 247, 248 (5th
Cir. 2019) (quoting Bush, 513 F.3d at 498 and citing DeLeon v. City of Corpus Christi, 488 F.3d
649, 656-57 (5th. Cir. 2007)). In evaluating the use of force, the Court may analyze whether the
use of force was distinct from the events leading to the criminal conviction or part of a series of
ongoing events. Hall v. Abilene’s Task Force, 681 F. App’x 422, 423 (5th Cir. 2017) (finding Heck
barred excessive force claims because plaintiff did not assert that the officers’ use of force was
“temporally or conceptually distinct” from his criminal conviction and instead arose from “a
continuous series of events” (citing DeLeon, 488 F.3d at 656-57)).
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In the instant case, McGown has a pending charge for resisting arrest with injury that stems
from his removal from the store and placement in the back of the patrol unit during the course of
his arrest. Therefore, it would not appear the officers’ use of force was “temporally or conceptually
distinct” from his criminal charge. DeLeon, 488 F.3d at 656-57. Given that the alleged use of force
and subsequent injuries occurred during an ongoing series of events in conjunction with the alleged
resisting, a stay is proper under Wallace until such time as the applicability of Heck can be properly
addressed after disposition of the relevant, pending charges of resisting a police officer. See Arnold
v. Town of Slaughter, 100 F. App’x 321, 323 (5th Cir. 2004).
Thus, McGown’s claims against Officers Ard, Acosta, and Green for excessive force, all
tied to his arrest and indictment, fall under the Heck bar. As a pretrial detainee, under Wallace,
McGown’s claims cannot proceed and will have to be stayed. If he is or has since been convicted,
he will have to establish that a state or federal court has determined the terms of his confinement
to be invalid or criticized in one of the ways discussed in Heck for this Court to consider his claim.
At this time, he cannot pursue a claim related to excessive force against the Officers, and a stay is
recommended.
C. 	Failure to Protect
McGown named JPCC, while not a proper defendant, for their failure to protect him when
he was stabbed in the shoulder by an inmate while out on the pod during breakfast. As previously
noted, McGown is a pretrial detainee. “[T]he State owes the same duty under the Due Process
Clause and the Eighth Amendment to provide both pretrial detainees and convicted inmates with
basic human needs, including ... protection from harm, during their confinement.” Hare v. City of
Corinth, Miss, 74 F.3d 633, 650 (5th 1996). Thus, regardless of whether the inmate is a pretrial
detainee or a convicted prisoner, the standard of liability is the same for episodic acts or omissions
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of jail officials that expose an inmate to being harmed by another inmate, such as those alleged by
McGown in this case. Hamilton v. Lyons, 74 F.3d 99, 104 n.3 (5th Cir. 1996); Hare, 74 F.3d at
650. It is well settled that inmates have a constitutional right to be protected from violence at the
hands of another inmate. See Leal v. Wiles, 734 F. App’x 905, 909 (5th Cir. 2018) (citing Farmer
v. Brennan, 511 U.S. 825, 833–34 (1994)) (discussing the prison officials’ duty to protect inmates
and detainees); Hare, 74 F.3d at 650.
To state a § 1983 failure-to-protect claim, McGown must allege that “he was incarcerated
under conditions posing a substantial risk of serious harm and that prison officials were
deliberately indifferent to his need for protection.” Jones v. Greninger, 188 F.3d 322, 326 (5th Cir.
1999) (quoting Newton v. Black, 133 F.3d 301, 308 (5th Cir. 1998)). To satisfy the deliberate
indifference element, the plaintiff must allege that the defendants “(1) were aware of facts from
which an inference of an excessive risk to the prisoner’s health or safety could be drawn and (2)
that they actually drew an inference that such potential for harm existed.” Rogers v. Boatright, 709
F.3d 403, 407–08 (5th Cir. 2013). Thus, plaintiff must allege that the official not only knew of and
disregarded an excessive risk to inmate health or safety but that he also drew that inference.
Farmer, 511 U.S. at 837. The risk of assault cannot be just any risk but must be “excessive.”
Brewster v. Dretke, 587 F.3d 764, 770 (5th Cir. 2009). This is because “[p]rison officials are not
... expected to prevent all inmate-on-inmate violence.” Adames v. Perez, 331 F.3d 508, 512 (5th
Cir. 2003).
An inmate pursuing a claim for failure to protect may prove it by showing that the
defendants knew of a specific threat to him but failed to take measures to protect him from it.
Farmer, 511 U.S. at 843. In the absence of a specific threat, an inmate may prove a claim of failure
to protect if he can show that he was placed in a prison environment “where terror reigns.” Jones
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v. Diamond, 636 F.2d 1364 (5th Cir. 1981), overruled on other grounds by International
Woodworkers of America, AFL-CIO and its Local No. 5-376 v. Champion Intern. Carp., 790 F.2d
1174 (5th Cir. 1986). This situation arises in a jail or prison where officials allow “a pervasive risk
of harm” and “fail[ ] to take reasonable steps to prevent the known risk.” Stokes v. Delcambre, 710
F.2d 1120 (5th Cir. 1983) (sheriff housed college students arrested on a non-violent misdemeanor
charge with a dozen inmates charged with violent felonies – leading to the students’ severe beating
and rape). “[I]t does not matter whether the risk comes from a single source or multiple sources,
any more than it matters whether a prisoner faces excessive risk of attack for reasons personal to
him or because all prisoners in his situation face such a risk.” Farmer, 511 U.S. at 843. Negligence,
however, on the part of the prison officials does not rise to the level of a § 1983 claim for deliberate
indifference; nor does an official’s failure to alleviate a significant risk that he should have
perceived, but did not. See Thompson v. Upshur County, TX, 245 F.3d 447, 459 (5th Cir. 2001);
Domino v. Texas Dep’t of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001).
McGown cannot name, and does not allege, any JPCC official that had any knowledge of
a specific threat to him and failed to take measures to protect him from it. Further, McGown has
not alleged, nor can he make a showing, that he was placed in a prison environment where terror
reigns given the set of facts presented surrounding the stabbing. In fact, McGown testified that
after the stabbing incident took place, JPCC officials shipped the inmate to another facility, and he
was given medical care for his injury. As such, he does not present a viable failure to protect claim
against JPCC. Vela v. Garcia, 728 F. App’x 285, 287 (5th Cir. 2018) (explaining that prisoner’s
failure “to allege [defendants] were aware of facts from which the inference could be drawn that
[prisoner] was exposed to a substantial risk of serious harm” was fatal to his failure-to-protect
claim).
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Thus, it would be unnecessary to afford McGown an inherently futile opportunity to file
an amended complaint to name a JPCC official as a defendant regarding the stabbing. See, e.g.,
Smith v. Terrebonne Par. Crim. Just. Complex, No. 14-2207, 2014 WL 5780696, at *3 (E.D. La.
Nov. 4, 2014) (“[T]he Court need not give plaintiff an opportunity to amend his complaint to name
a proper defendant, because it is clear that his underlying claim is frivolous and/or fails to state a
claim on which relief may be granted . . .”); see also Martzen v. McLane, 764 F. App’x 402, 403
(5th Cir. 2019) (noting that a plaintiff need not be given an opportunity to amend if he has “already
alleged his best case and . . . any further amendment would not have stated a valid § 1983 claim”).
Therefore, McGown’s claims against JPCC for failure to protect must be dismissed under
28 U.S.C. § 1915 and § 1915A as frivolous and for failure to state a claim for which relief can be
granted.
D. 	State Law Claims
McGown alleges that JPCC failed to book him properly and that he was not brought before
a commissioner until he had been in custody for 15 days. Louisiana Code of Criminal Procedure
art. 230.1 governs the amount of time for appearance before a judge from the time of arrest.
“The flaw in plaintiff's federal claims, however, is that they are premised on purported
violations of state law, namely, article 230.1, and violations of state law are not actionable under
42 U.S.C. § 1983.” Couvillion v. Lopinto, No. 24-590, 2024 WL 2739321, at *3 (E.D. La. May 2,
2024); see, e.g., Hayes v. Herford, No. 22-cv-0872, 2022 WL 2446498, at *2 (W.D. La. June 13,
2022) (“Plaintiff's claim [that the defendants failed to abide by the provisions of art. 230.1] alleges
a violation of State law, at worst, and therefore is insufficient to state a claim for which relief may
be granted pursuant to § 1983.”), adopted, 2022 WL 2444946 (W.D. La. July 5, 2022); Delaney v.
Ackal, Civ. Action No. 09-1643, 2009 WL 5195935, at *5 (W.D. La. Dec. 30, 2009). Moreover,
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article 230.1 does not give rise to a constitutionally protected liberty interest, and, therefore, failure
to comply with that article does not constitute a federal due process violation under the Fourteenth
Amendment. LaFrance v. City of New Orleans, Civ. Action No. 16-14439, 2017 WL 3277291, at
*4-5 (E.D. La. June 19, 2017); see also Dominick v. Stone, Civ. Action No. 19-0503, 2019 WL
2932817, at *3-4 (W.D. La. June 14, 2019), adopted, 2019 WL 2932756 (W.D. La. July 8, 2019).
Pursuant to 28 U.S.C. § 1367(a), in any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are
so related to claims in action within such original jurisdiction that they form part of the same case
or controversy under Article III of the United States Constitution. This jurisdiction is “a doctrine
of discretion,” and in so deciding, courts consider “judicial economy, convenience and fairness to
litigants,” as well as whether “the state issues substantially predominate.” United Mine Workers
of America v. Gibbs, 383 U.S. 715, 726-27 (1966). 	Ultimately, “[a] district court has ‘wide
discretion’ in deciding whether it should retain jurisdiction over state law claims once all federal
claims have been eliminated.” Enochs v. Lampasas Cnty., 641 F.3d 155, 161 (5th Cir. 2011) (citing
Guzzino v. Felterman, 191 F.3d 588, 595 (5th Cir. 1999)). Thus, the Fifth Circuit recognizes that
its “general rule is to dismiss state claims when the federal claims to which they are pendent are
dismissed.” Parker & Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580, 585 (5th Cir. 1992)
(citing Wong v. Stripling, 881 F.2d 200, 204 (5th Cir. 1989)); see Carnegie-Mellon University v.
Cohill, 484 U.S. 343, 351 (1988) (when the federal claims are eliminated at an “early stage” of the
litigation the district court has “a powerful reason to choose not to continue to exercise
jurisdiction”); Gibbs, 383 U.S. at 726 (“Certainly, if the federal claims are dismissed before trial,
even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as
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well.”). 	The Supreme Court has for nearly half a century cautioned federal courts to avoid
“[n]eedless decisions of state law[.]” Gibbs, 383 U.S. at 726.
As stated previously, the Court recommends that McGown’s § 1983 claims against JPCC
be dismissed as frivolous and for failure to state a claim for which relief can be granted. Thus,
there is no basis to maintain § 1983 claims against them and nothing left to which the state law
claims against them are pendent. Considering the statutory provisions of § 1367(c) and balancing
the relevant factors of judicial economy, convenience, fairness, and comity and considering the
early stage of this proceeding, this Court should decline to exercise jurisdiction over any state law
constitutional or against defendant JPCC and dismiss those claims without prejudice.
IV. 	Recommendation
It is therefore RECOMMENDED that plaintiff Jerrell Jheron McGown’s 42 U.S.C.
§ 1983 claims against defendants Jefferson Parish Sheriff’s Office, Sheriff Joseph P. Lopinto,
Jefferson Parish Correctional Center, Oschner Health, E.M.S. technician Jamie Eschette, and
E.M.S. technician Christopher Sattler be DISMISSED WITH PREJUDICE pursuant to 28
U.S.C. § 1915(e), § 1915A, and 42 U.S.C. § 1997e as frivolous and otherwise for failure to state a
claim for which relief can be granted.
It is further RECOMMENDED that McGown’s state law claims against defendant
Jefferson Parish Correctional Center be DISMISSED WITHOUT PREJUDICE because the
Court declines to exercise supplemental jurisdiction over these claims.
It is further RECOMMENDED that, pursuant to Wallace v. Kato, 549 U.S. 384 (2007),
McGown’s § 1983 claims for excessive force during his arrest on June 19, 2024, against defendants
Officer Jerry Ard, Officer Latasha Green, and Officer Hector Acosta be STAYED. The Clerk of
Court should be directed to statistically close the stayed portion of the case for administrative
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purposes. Further, the Court should order that, within 60 days of finality of McGown’s conviction
or upon disposition of the state criminal charges in his favor, either party may move to reopen the
matter for further proceedings consistent with Heck v. Humphrey, 512 U.S. 477 (1994).
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within fourteen (14) days
after being served with a copy shall bar that party, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by
the district court, provided that the party has been served with notice that such consequences will
result from a failure to object. Douglass v. United Servs. Auto. Assn., 79 F.3d 1415, 1430 (5th Cir.
1996).4
New Orleans, Louisiana, this 	day of February, 2026.
_______________________________________
KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE
4 Douglass referenced the previously applicable ten-day period for the filing of objections. 	Effective
December 1, 2009, 28 U.S.C. § 636(b)(1) was amended to extend the period to fourteen days.
27th
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