3:25-cv-00420•Hamburg v. Rosso et al
Texte intégral
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. Case 3:25-cv-00420-SDD-EWD Document 8 12/10/25 Page 2 of 8
2 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. Case 3:25-cv-00420-SDD-EWD Document 8 12/10/25 Page 3 of 8
3 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). Case 3:25-cv-00420-SDD-EWD Document 8 12/10/25 Page 4 of 8
4 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 Case 3:25-cv-00420-SDD-EWD Document 8 12/10/25 Page 5 of 8
5 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”). Case 3:25-cv-00420-SDD-EWD Document 8 12/10/25 Page 6 of 8
6 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. Case 3:25-cv-00420-SDD-EWD Document 8 12/10/25 Page 7 of 8
7 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. S 29 R. Doc. 4. 30 R. Doc. 7. Case 3:25-cv-00420-SDD-EWD Document 8 12/10/25 Page 8 of 8
Vous vous demandez comment ce texte s’applique à votre situation ?
Consultation gratuite, sans engagement
Décrivez votre situation. Notre équipe vous recontactera par e-mail pour votre consultation.
Poursuivez vos recherches dans ChatGPT ou Claude
Connectez Omnilex pour rechercher dans le corpus juridique depuis votre assistant IA.