Porter v. Wallace et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TOMARCUS PORTER CIVIL ACTION
VERSUS NO. 25-691
LANCE WALLACE, ET AL. SECTION “I” (2)
REPORT AND RECOMMENDATION
Plaintiff Tomarcus Porter filed a complaint pursuant to 42 U.S.C. § 1983, which 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). Having considered the record and the applicable law, the Court has
determined that this matter can be disposed of without an evidentiary hearing.
I. FACTUAL ALLEGATIONS
A. Complaint (ECF No. 1)
Porter, a convicted inmate housed at Louisiana State Penitentiary, filed this pro se and in
forma pauperis complaint pursuant 42 U.S.C. § 1983 against defendants Lance Wallace, Henry
McMurry, Russell Roberts, Zachery Thigpen, Caleb Lemire, Dereck Mingo, Austin Seals, Daniel
Boyd, and Thomas Mitchell involving an alleged use of force when he was housed at Rayburn
Correctional Center. ECF No. 1 at 1; id. ¶III(B)-(G), at 6; id. at 7.
Broadly construing his complaint, Porter claims that defendants used excessive force
against him and fabricated a report made on February 27, 2023, to make it appear as though he
was resisting. ECF No. 1-1 at 5. He states that Officer Russell Roberts was taking him outside and,
once off camera, moved Porter in a back-and-forth motion to make it appear as though he was
resisting. Id. at 7. Porter claims this was retaliation for an incident he had with Officer Lance
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Wallace on April 28, 2022, when he had to stand his ground to stop an assault by throwing feces
at Wallace. Porter also claims that Officer Henry McMurry used excessive force by kicking,
punching, and spraying Porter with a chemical agent. He states McMurry gave a false statement
that Porter bit him. Porter claims this was also in retaliation for the April 28, 2022, incident with
Officer Wallace.
Further, Porter claims that Officer Lance Wallace used excessive force in retaliation for
the April 28, 2022, incident by slapping, punching, and kicking Porter while outside and then again
in the medical exam room where he slapped and beat Porter leaving a bruise on the left side of his
face. In addition to Officer Wallace, Porter states that Officer Caleb Lemaire used excessive force
by kicking Porter in the left side of his rib cage, slapping and punching him in the face, and
slamming his head into a brick wall on the way to the unit from the infirmary. Id. at 8. Porter also
states Officer Daniel Boyd used excessive force when he first responded to the incident and
restrained him, then once other officers arrived, began kicking and punching Porter in the face and
back. Porter claims Officer Zachery Thigpen grabbed his right ankle and twisted it, then began
kicking him in the back and punching him in the face while he was fully restrained.
Aside from his claims of excessive force, Porter states that Nurse Austin Seals failed to
protect him by failing to intervene as Seals witnessed the use of force by the other defendants.
Further, Porter states Officer Dereck Mingo showed deliberate indifference by failing to act as a
supervisor when he did not enforce sanctions and write up the other officers for their conduct. Id.
at 9. As to Officer Thomas Mitchell, Porter claims Officer Mitchell was the officer who responded
to his administrative grievance claiming that there was camera footage of the incident that did not
support a finding of excessive force, and by not producing the actual camera footage, is also liable.
As relief, Porter seeks a declaratory judgment, injunctive relief, compensatory and punitive
damages, and that all defendants be charged for their violation of law. ECF No. 1, ¶V, at 8.
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B. Response to § 1983 Order (ECF No. 12)
In his response, Porter largely reiterates the facts of his complaint as outlined above. ECF
No. 12 at 1-2. Porter states that the alleged use of force took place on February 26, 2023. Porter
also reiterates that Officer Mitchell’s involvement was limited to his role as the responding officer
to the Administrative Remedy Procedure grievance that Porter filed surrounding the use of force
on February 26, 2023. Id. at 2.
II. LEGAL STANDARDS
A. Statutorily Required Screening
As soon as practicable after docketing, the court must review a prisoner’s § 1983 complaint
for a cognizable claim, or dismiss the complaint if it is frivolous and/or fails to state a claim.1 A
claim is frivolous if it “lacks an arguable basis in law or fact.”2 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.”3 A factually frivolous claim alleges only
facts that are “‘clearly baseless,’ . . . are ‘fanciful,’ ‘fantastic,’ and ‘delusional’ . . . [or] rise to the
level of the irrational or wholly incredible . . . .”4 A court may not dismiss a claim simply because
the facts are “unlikely.”5
A complaint fails to state a claim on which relief may be granted when the factual
allegations do not rise above a speculative level, with the assumption that all factual allegations in
the complaint are true, even if doubtful.6 The Rule 12(b)(6) analysis is generally confined to a
1 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e)(2)(B); Martin, 156 F.3d at 579-80.
2 Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998); Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994). The law
“accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the
unusual power to pierce the veil of the complaint’s factual allegations and dismiss those claims whose factual
contentions are clearly baseless.” Macias v. Raul A., 23 F.3d 94, 97 (5th Cir. 1994) (quoting Neitzke, 490 U.S. at 327).
3 Davis, 157 F.3d at 1005 (quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997)).
4 Moore v. Mabus, 976 F.2d 268, 270 (5th Cir. 1992) (quoting Denton v. Hernandez, 504 U.S. 25, 32-33 (1992)).
5 Id.
6 Garrett v. Thaler, 560 F. App’x 375, 377 (5th Cir. 2014) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)).
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review of the complaint and its proper attachments.7 The Fifth Circuit has summarized the
standard for Rule 12(b)(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.’” A claim
for relief is plausible on its face “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” A claim for relief is implausible on its face when “the well-
pleaded facts do not permit the court to infer more than the mere possibility of
misconduct.”8
When evaluating a motion to dismiss under Rule 12(b)(6), a court must accept all well-pleaded
facts as true and view the facts in the light most favorable to the plaintiff.9 Thus, the court should
assume the veracity of all well-pleaded allegations, viewing them in the light most favorable to the
plaintiff, “‘and then determine whether they plausibly give rise to an entitlement to relief.’”10
In comparing a dismissal for failure to state a claim under 28 U.S.C. § 1915(e) and FED. R.
CIV. P. 12(b)(6), Neitzke, 490 U.S. at 319, held that a claim that is dismissed under one rule does
not “invariably fall afoul” of the other.11 If an in forma pauperis complaint lacks even an arguable
basis in law, dismissal is appropriate under both Rule 12(b)(6) and § 1915(e).12 “When a complaint
raises an arguable question of law which the district court ultimately finds is correctly resolved
against the plaintiff, dismissal under Rule 12(b)(6) is appropriate; however, dismissal under [§
1915(e)’s] frivolousness standard is not.”13
7 Walch v. Adjutant Gen.’s Dep’t, 533 F.3d 289, 293 (5th Cir. 2008) (citation omitted).
8 Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 796 (5th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); Twombly, 550 U.S. at 544).
9 Id. at 803 n.44 (quoting True v. Robles, 571 F.3d 412, 417 (5th Cir. 2009) (internal quotations omitted)); accord
Murchison Capital Partners, L.P. v. Nuance Commc’ns, Inc., 625 F. App’x 617, 618 n.1 (5th Cir. 2015) (citing Wood
v. Moss, 572 U.S. 744, 755 n.5 (2014)); Maloney Gaming Mgt., L.L.C. v. St. Tammany Par., 456 F. App’x 336, 340
(5th Cir. 2011) (quoting Elsensohn v. St. Tammany Par. Sheriff’s Ofc., 530 F.3d 368, 371 (5th Cir. 2008) (quoting
Iqbal, 556 U.S. at 696); In re Katrina Canal Breaches Litigation, 495 F.3d at 205 n.10 (5th Cir. 2017)).
10 Jabary v. City of Allen, 547 F. App’x 600, 604 (5th Cir. 2013) (quoting Iqbal, 556 U.S. at 664); see also Dorsey v.
Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008).
11 Moore, 976 F.2d at 269 (quoting Neitzke, 490 U.S. at 326) (citing 28 U.S.C. § 1915(d)) (current version at 28 U.S.C.
§ 1915(e)).
12 Id.
13 Id.
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B. Required Elements of a § 1983 Claim
Section 1983 creates a damages remedy for the violation of federal constitutional or
statutory rights under color of state law:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes to be subjected, any . . . person within
the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an action
at law . . . .14
“The purpose of § 1983 is to deter state actors from using their badge of authority to deprive
individuals of federally guaranteed rights and to provide relief to victims if such deterrence fails.”15
A plaintiff must satisfy three elements to establish § 1983 liability:
(1) deprivation of a right secured by the U.S. Constitution or federal law;
(2) that occurred under color of state law; and
(3) was caused by a state actor.16
Because § 1983 merely provides a remedy for designated rights, rather than creating any
substantive rights, “an underlying constitutional or statutory violation is a predicate to liability.”17
This requires the plaintiff to identify both the constitutional violation and the responsible person
acting under color of state law.18 “The traditional definition of acting under color of state law
requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state
law and made possible only because the wrongdoer is clothed with the authority of state law.’”19
14 42 U.S.C. § 1983.
15 Wyatt v. Cole, 504 U.S. 158, 161 (1992) (citing Carey v. Piphus, 435 U.S. 247, 254-57 (1978)).
16 Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004) (citation omitted).
17 Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997) (citation omitted).
18 Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1978).
19 West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)); accord
Thibodeaux v. Bordelon, 740 F.2d 329, 333 (5th Cir. 1984).
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III. ANALYSIS
A. Timeliness
Porter alleges that defendants Officer Wallace, Officer McMurray, Officer Roberts, Officer
Thigpen, Officer Lemire, Nurse Seals, and Officer Boyd violated his constitutional rights during
the alleged use of force that took place on February 26, 2023.
“[T]he statute of limitations for a Section 1983 action is a state’s general or residual
personal injury statute of limitations.”20 In this instance, Louisiana’s one-year statute of
limitations, or prescriptive period, for tort claims would apply.21 Porter alleges the incident
involving the use of force occurred on February 26, 2023, but did not file his original complaint
until March 18, 2025.22 The prescriptive period commences when the aggrieved party either has
knowledge of the violation or notice of the facts which, in the exercise of due diligence, would
have led to actual knowledge thereof.23 As a direct participant of the February 26, 2023 events,
Porter clearly knew of the facts on which to base any claim.
Given that Porter’s claims accrued on February 26, 2023, and because his federal complaint
was filed no earlier than March 18, 2025, the claims were prescribed at the time of filing unless
the one-year statute of limitations was tolled (or in civilian terms, suspended). In the context of the
20 Brown v. Pouncy, 93 F.4th 331, 334 (5th Cir.) (citation omitted), cert. denied, 145 S. Ct. 170 (2024).
21 In 2024, the Louisiana Legislature extended Louisiana’s prescriptive period for torts to two years. La. Civ. Code
art. 3493.1. However, this change has “prospective application only,” and applies only “to delictual actions arising
after the [July 1, 2024] effective date of [Act 423].” 2024 La. Sess. Law Serv. Act 423 (H.B. 315). Since the alleged
incidents underlying King’s claims occurred before July 1, 2024, the former one-year prescriptive period under La.
Civ. Code art. 3492 remains applicable. See Allied World Nat’l Assurance Co. v. Nisus Corp., 134 F.4th 821, 826 n.3
(5th Cir. 2025) (applying the former Article 3492’s one-year prescriptive period to tort claim arising from facts
occurring before July 1, 2024).
22 ECF No. 1 at 9. Porter is a pro se prisoner. As such, his complaint is “deemed filed as of the date that he duly
submitted it to prison authorities for forwarding to the clerk of court.” Cooper v. Brookshire, 70 F.3d 377, 379 (5th
Cir. 1995). Here, that date is not apparent from the record, as Porter signed his complaint on March 18, 2025, but the
accompanying envelope is postmarked March 25, 2025. ECF No. 1 at 9; id. at 10. However, Porter’s complaint could
not have been submitted to prison officials earlier than the date on which he signed the complaint. See, e.g., Smith v.
Tanner, No. 18-3719, 2018 WL 6204617, at *6 (E.D. La. Nov. 11, 2018), adopted, 2018 WL 6199974 (E.D. La. Nov.
27, 2018). Thus, the Court affords Porter every benefit of the doubt and utilizes March 18, 2025, as the filing date.
23 Piotrowski v. City of Houston, 51 F.3d 512, 516 (5th Cir. 1995) (citing Vigman v. Community Nat’l Bank & Trust
Co., 635 F.2d 455, 459 (5th Cir. 1981)).
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PLRA, the statute of limitations is tolled while the proceedings for exhausting administrative
remedies are pending.24
Here, Porter’s limitations period was tolled while he pursued his administrative remedies
with respect to his claims when he filed his grievance on May 11, 2023, through April 17, 2024,
when his request for remedy was denied.25 However, even taking the relevant tolling period into
consideration, Porter’s complaint is not timely filed because he allowed 77 days to elapse before
he filed his grievance and then allowed for another 335 days to elapse between the time he received
notice of the denial and the filing of his federal complaint. Accordingly, even with the benefit of
that tolling, Porter’s federal complaint was filed 47 days after the limitations period expired.
Louisiana’s one-year prescriptive period on Porter’s claims ran before he filed his
complaint on March 18, 2025. Consequently, any claims against defendants Officer Wallace,
Officer McMurray, Officer Roberts, Officer Thigpen, Officer Lemire, Nurse Seals, and Officer
Boyd pertaining to events that occurred on February 26, 2023, are prescribed and untimely. As
such, they are properly dismissed as frivolous and otherwise for failure to state a claim for which
relief can be granted, making them subject to dismissal pursuant to 28 U.S.C. § 1915, § 1915A
and 42 U.S.C. § 1997e.
B. Officers Mitchell and Mingo
Porter also raises claims relating to Officer Mingo’s failure to act as a supervisor in writing
up the other defendants for their conduct on February 26, 2023, and Officer Mitchell’s findings as
the responding grievance officer to Porter’s remedy request.
As to Porter’s claims involving Officer Mingo’s failure to act as a supervisor, there is no
24 Clifford v. Gibbs, 298 F.3d 328, 333 (5th Cir. 2002); Harris v. Hegmann, 198 F.3d 153, 158 (5th Cir. 1999); see
also Wright v. Hollingsworth, 260 F.3d 357, 359 (5th Cir. 2001) (noting that “under PLRA exhaustion requirement,
limitations on a prisoner’s § 1983 claims is tolled during administrative proceedings”) (citing Harris, 198 F.3d at 157–
59).
25 ECF No. 1 at 5.
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respondeat superior liability under section 1983.26 Thus, Officer Mingo cannot be held liable
under § 1983 pursuant to a theory of respondeat superior simply because the other officers
involved were under his supervision.27 A plaintiff must instead establish that he suffered a
constitutional violation or physical injury directly resulting from an order, policy, or directive
implemented by the official to create vicarious liability under § 1983.28 Porter, however, has not
referenced any order, training, or other policy implemented by Officer Mingo that factored into
the events about which he complains.
Similarly, Porter cannot succeed on his claims involving Officer Mitchell and the
investigation done in response to his grievance request. The Fifth Circuit has repeatedly held that
an inmate does not have a constitutional right to an adequate and effective grievance procedure, or
to have his complaints investigated and resolved to his satisfaction.29 A prisoner has no protected
liberty interest in the adequacy or the result of prison administrative grievance procedures.30
Thus, Porters claims against Officer Mingo and Officer Mitchell involving supervisory
roles or grievance requests should be dismissed pursuant to 28 U.S.C. § 1915 and § 1915A as
frivolous and for failure to state a claim for which relief can be granted.
26 Carter v. Strain, No. 09-3401, 2009 WL 2390808, at *3 (E.D. La. July 31, 2009); see Eason v. Thaler, 73 F.3d
1322, 1327 (5th Cir. 1996) (“There is no respondeat superior liability under section 1983.”); accord Field v. Corr.
Corp. of Am. Inc., 364 F. App’x 927, 929 (5th Cir. 2010); Cox, 281 F. App’x at 391; Kohler, 470 F.3d at 1114-15.
27 Sanders v. English, 950 F.2d 1152, 1160 (5th Cir. 1992); Baskin v. Parker, 602 F.2d 1205, 1208 (5th Cir. 1979);
Barksdale v. King, 699 F.2d 744, 746 (5th Cir. 1983).
28 Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992); Thompson v. Upshur Cnty., 245 F.3d 447, 459 (5th Cir. 1991);
City of St. Louis v. Praprotnik, 485 U.S. 112, 124-25 (1988); see also; Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir.
1987) (Supervisory officials “are not liable for the actions of subordinates on any theory of vicarious liability” and
will only be liable if the official “implement[s] a policy so deficient that the policy itself is a repudiation of
constitutional rights and is the moving force of the constitutional violation.”); Smith v. Brenoettsy, 158 F.3d 908, 911-
12 (5th Cir. 1998) (a supervisory official may be liable for the acts of a subordinate if the plaintiff can establish that
the supervisor either failed to supervise or train the subordinate, that a causal link exists between the failure to train
or supervise and the violation of the plaintiff's rights, and the failure to train or supervise amounted to deliberate
indifference).
29 Stauffer v. Gearhart, 741. F. 3d 574, 587 (5th Cir. 2014) (citing Geiger v. Jowers, 404 F.3d 371, 373–74 (5th Cir.
2005)); Propes v. Mays, 169 F. App’x 183, 184–85 (5th Cir. 2006) (concluding that prisoners do not have a federally
protected liberty interest in having grievances investigated, let alone resolved in their favor) (citing Geiger, 404 F.3d
at 373–74).
30 Smith v. Horton, 670 F. App’x 872, 873 (5th Cir. 2016) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995).
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IV. RECOMMENDATION
For the foregoing reasons,
It is therefore RECOMMENDED that plaintiff Tomarcus Porter’s 42 U.S.C. § 1983
claims against defendants Lance Wallace, Henry McMurry, Russell Roberts, Zachery Thigpen,
Caleb Lemire, Dereck Mingo, Austin Seals, Daniel Boyd, and Thomas Mitchell be DISMISSED
WITH PREJUDICE as frivolous and otherwise fail to state a claim for which relief can be granted
pursuant to 28 U.S.C. § 1915, § 1915A and 42 U.S.C. § 1997e.
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.31
New Orleans, Louisiana, this 5th day of February, 2026.
_____________________________________
DONNA PHILLIPS CURRAULT
UNITED STATES MAGISTRATE JUDGE
31 Douglass v. United Servs. Auto. Assn., 79 F.3d 1415, 1430 (5th Cir. 1996). 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.
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