KURT ENGELHARDT, District Judge
The Court has considered the Complaint, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge, and the plaintiff's Objection thereto. In his Objection, plaintiff states forthrightly that he has merely "changed the basis of the complaint from negligence to deliberate indifference." Notably, plaintiff also seeks to file an Amended Complaint, which contains no new factual allegations but merely labels the prior allegations as "deliberate indifference" as opposed to the previous label of "negligence." In light of the proposed Amended Complaint, plaintiff's Objection thus is also based on an attempt to argue all of the same conduct as previously alleged, but to cloak it in an allegation of "deliberate indifference."
See document number 13-2, filed on January 30, 2009.
Given the exigencies and unprecedented emergency circumstances surrounding Hurricane Katrina and its aftermath, the Court cannot agree that the actions of the defendants rise to the level of "deliberate indifference." Moreover, even had plaintiff used the term "deliberate indifference" in the original Complaint, the Magistrate Judge adequately addressed whether such conduct as allegedly committed by the defendants rose to such a level, and concluded that, under the extraordinary circumstances existing at the relevant time, it did not.
See Magistrate's Report and Recommendation, document number 10, page 5.
For these reasons, the Court overrules the Objection of plaintiff and also denies plaintiff's motion to amend his complaint to include the term "deliberate indifference," and hereby approves the Report and Recommendation of the United States Magistrate Judge and adopts it as its opinion in this matter. Therefore,
IT IS ORDERED that Wendell Brooks's claims against Orleans Parish Criminal Sheriff Marlin Gusman are DISMISSED WITH PREJUDICE as frivolous and for otherwise failing to state a claim for which relief can be granted.