RULING1

ERIN WILDER-DOOMES, Magistrate Judge.

Before the Court is a Motion for Summary Judgment2 filed by plaintiff, De'Juan Thomas ("Plaintiff") and a Second Motion for Summary Judgment3 filed by defendants, James LeBlanc ("Secretary LeBlanc"), Jerry Goodwin ("Warden Goodwin"), and Sally Gryder ("Ms. Gryder") (collectively, "Defendants").4 Both Motions are fully briefed.5 On August 12, 2019, the Court conducted a hearing on both Motions and took the Motions under advisement. For the reasons set forth herein, the Court denies Plaintiff's Motion for Summary Judgment6 and grants in part Defendants' Second Motion for Summary Judgment.7 Specifically, the Court finds that Ms. Gryder is entitled to qualified immunity for the time period of June 5, 2015 through August 17, 2016 and that Defendants are entitled to summary judgment dismissing "Count Seven — Pattern and Practice Liability," as well as Plaintiff's claim for injunctive relief. Additionally, the Court dismisses with prejudice Plaintiff's claims against unidentified "Does 1-10," as well as any official capacity claims for monetary damages against Defendants based on the agreement of counsel during the August 12, 2019 motion hearing.8

Considering this Ruling, a separate Order setting remaining pretrial deadlines and a trial date will issue.

I. Background

On November 11, 2017, Plaintiff filed a Complaint asserting claims pursuant to 42 U.S.C. § 1983, as well as state law claims based on Plaintiff's alleged false imprisonment.9 Plaintiff alleges he was illegally imprisoned for 589 days past the end of his actual sentence due to the acts of Sally Gryder, an employee in the Records Department at the David Wade Correctional Center ("DWCC") for the Louisiana Department of Corrections (the "DOC").10 Plaintiff alleges that while the DOC originally calculated his release date correctly as June 5, 2015,11 Ms. Gryder thereafter concluded that the June 5, 2015 date was incorrect based on a discrepancy between the Bill of Information and the state court's Sentencing Order, and informed Plaintiff that he would not be released until February 28, 2017.12

On August 31, 2018, Plaintiff's state law claims were dismissed with prejudice as prescribed.13 With respect to Plaintiff's federal claims, this Court explained that:14

The parties agree that on January 23, 2013, Plaintiff pleaded guilty in Orleans Criminal District Court and was sentenced as follows: (1) Count 1: sexual malfeasance in prison — five years; (2) Count 2: sexual battery — two years; and (3) Count 3: second degree kidnapping — five years.20 During his incarceration at DWCC, Plaintiff's sentence was recalculated by Ms. Gryder on four occasions. The first recalculation gave Plaintiff credit for time served, while the second and third recalculations gave Plaintiff Certified Treatment and Rehabilitation Program ("CTRP") credits and "good time" credits.21 The result of these first three recalculations (based on time served, CTRP credit, and good time credits) resulted in a release date of June 5, 2015.22

The parties further agree that in May 2015, Ms. Gryder recalculated Plaintiff's sentence a fourth time. This fourth recalculation is the basis for the instant lawsuit.23 Ms. Gryder testified that in May of 2015 she was "double checking" Plaintiff's release date prior to his anticipated June 2015 release and sought clarification after she noticed that the Bill of Information and Sentencing Order ordered Plaintiff's charges differently.24 It is undisputed that Ms. Gryder thereafter sent an email to the Orleans Parish District Attorney's Office inquiring about the discrepancy and spoke with the Assistant DA, who informed her that Plaintiff was sentenced to five years on the sexual battery conviction.25 On May 7, 2015, an Amended Minute Entry was entered on the criminal docket which read, in part: "The Defendant pled guilty and was sentenced on 1/25/13 as to...Count 3, R.S. 14:43.1 (5 years, D.O.C.)." After seeing the May 7, 2015 Amended Minute Entry, Ms. Gryder again contacted the Orleans Parish District Attorney's Office to confirm Plaintiff was sentenced to five years for sexual battery, and on May 11, 2015, the Assistant DA responded "The updated minute entry is correct. I can send you a certified copy, if that would be helpful."26 Ms. Gryder then recalculated Plaintiff's release date to be February 28, 2017.27 It is undisputed that sexual battery is not subject to any good time reductions and that if Plaintiff had been sentenced to five years for sexual battery, his release date would have been February 28, 2017.28

Following this fourth recalculation of Plaintiff's release date, the parties agree that Plaintiff sent letters to Ms. Gryder and Warden Goodwin objecting to the February 28, 2017 release date; that Warden Goodwin spoke with Ms. Gryder and her supervisor, Brenda Acklin, regarding Plaintiff's release date; and that a letter dated July 28, 2015 and signed by Warden Goodwin was issued to Plaintiff stating: "Your time was adjusted correctly by Mrs. Gryder and the minutes from Orleans Parish are attached for your information."29 Thereafter, Plaintiff filed a Motion for Correction of Illegal Sentence with the Criminal District Court, and on July 28, 2016, that court issued an order (the "July 2016 Order") stating:

While Ms. Gryder testified that she did not see the July 2016 Order until litigation commenced,31 Plaintiff has filed a Declaration stating that he sent the July 2016 Order to Ms. Gryder on August 17, 2016.32 It is undisputed that on December 5, 2016, Plaintiff sent a letter to Brenda Acklin, as well as a copy of the sentencing transcript.33 Ms. Gryder testified that she realized that Plaintiff should have been released in June 2015 when she received the sentencing transcript in "early December, 2016."34

Following receipt of the sentencing transcript, it is undisputed that Ms. Gryder sent an email to the Assistant DA requesting an updated minute entry35 and processed Plaintiff for release in January 2017.36 An employee with DWCC requested approval of a new residence plan for Plaintiff on December 14, 2016, and an approved residence plan was sent to DWCC on January 3, 2017.37 On January 6, 2017, a State ID was requested and ordered for Plaintiff, and the ID was issued on January 6, 2017 and received on January 11, 2017.38 Plaintiff was released from DWCC on January 13, 2017 and spent approximately one month on parole before being released from supervision.39

II. Law and Analysis

A. Summary Judgment Standard

Pursuant to well-established legal principles, summary judgment is appropriate where there is no genuine disputed issue as to any material fact, and the moving party is entitled to judgment as a matter of law.40 A party moving for summary judgment must inform the court of the basis for the motion and identify those portions of the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, that show that there is no such genuine issue of material fact.41 If the moving party carries its burden of proof under Rule 56, the opposing party must direct the court's attention to specific evidence in the record which demonstrates that the non-moving party can satisfy a reasonable jury that it is entitled to a verdict in its favor.42 This burden is not satisfied by some metaphysical doubt as to alleged material facts, by unsworn and unsubstantiated assertions, by conclusory allegations, or by a mere scintilla of evidence.43 Rather, Rule 56 mandates that summary judgment be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial.44 Summary judgment is appropriate in any case where the evidence is so weak or tenuous on essential facts that the evidence could not support a judgment in favor of the non-moving party.45 In resolving a motion for summary judgment, the Court must review the facts and inferences in the light most favorable to the non-moving party, and the Court may not evaluate the credibility of witnesses, weigh the evidence, or resolve factual disputes.46

B. Plaintiff's Claims are not Heck Barred

Defendants assert that Plaintiff's claims are barred pursuant to Heck v. Humphrey.47 In Heck, the United States Supreme Court held that in order to recover monetary compensation for an allegedly unconstitutional conviction or imprisonment, or for "harm caused by actions whose unlawfulness would render a conviction or sentence invalid," a claimant must show that the 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."48 "Thus," the Court explained, "the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity if his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated."49 Conversely, "if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit."50

The "favorable termination" requirement of Heck prohibits a criminal defendant's collateral attack on the defendant's conviction or sentence.51 Here, however, Plaintiff does not seek to collaterally attack either his conviction or his sentence. Instead, all parties agree that on January 23, 2013, Plaintiff pleaded guilty in Orleans Criminal District Court and was sentenced as follows: (1) Count 1: sexual malfeasance in prison — five years; (2) Count 2: sexual battery — two years; and (3) Count 3: second degree kidnapping — five years.52 The parties further agree that Plaintiff's correct release date was June 5, 2015.53 Nothing in the instant action would invalidate either Plaintiff's conviction or sentence,54 and Defendants cite the Court to no cases in which the unique fact pattern at issue here was considered.55 Accordingly, the Court finds that Plaintiff's claims are not Heck barred.56 [distinguish Bryant]

C. Ms. Gryder is Entitled to Qualified Immunity for the Period of June 5, 2015 through August 17, 2016; Ms. Gryder is not Entitled to Qualified Immunity for the Period of August 18, 2016 through January 13, 2017

"A public official is entitled to qualified immunity unless the plaintiff demonstrates that (1) the defendant violated the plaintiff's constitutional rights and (2) the defendant's actions were objectively unreasonable in light of clearly established law at the time of the violation."57 An official's conduct violates clearly established law where, "at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right."58 However, "[a]n official that violates a constitutional right is still entitled to qualified immunity if his or her actions were objectively reasonable."59

"There is a clearly established right to timely release from prison" and "a jailer has a duty to ensure that inmates are timely released...."60 The Fifth Circuit has found that "`[w]hile not a surety for the legal correctness of a prisoner's commitment, [a jailer] is most certainly under an obligation, often statutory, to carry out the functions of his office. Those functions include not only the duty to protect a prisoner, but also the duty to effect his timely release.'"61 Despite the defense of qualified immunity, "[i]f [the jailer] negligently establishes a record keeping system in which errors of this kind are likely, he will be held liable."62 Accordingly, "the issue is whether [Gryder's] actions, in light of the duty to ensure [Plaintiff's] timely release from prison, were objectively unreasonable."63

Plaintiff argues that Ms. Gryder is liable because her actions were taken "causelessly" and therefore were deliberately indifferent. In Johnson v. Treen,64 the Fifth Circuit explained that "[t]he legal conclusion of `deliberate indifference,' therefore, must rest on facts clearly evincing `wanton' actions on the part of the defendants" and that:

Plaintiff contends that Ms. Gryder's action of seeking "clarification of a clear order" meets this definition of causelessly (reasoning that there is no cause to seek clarification if something is clear). Plaintiff relies on Ms. Gryder's deposition testimony wherein she agreed that the Sentencing Order was "clear"66 and that there was no rule that required the counts in the Bill of Information to match the order of the counts in the Sentencing Order. Plaintiff contends that "Ms. Gryder was by definition acting causelessly in her efforts to resolve a mismatch between two documents that did not have to match. And she was by definition acting causelessly in her efforts to seek `clarification' of a `clear order.'"67 The Court disagrees.

The Fifth Circuit has recognized that a jailer is "under relatively little time pressure" and "has the means, freedom, and the duty to make necessary inquiries."68 "[A] defense of official immunity is available to a jailer who has acted in reasonable good faith,"69 and "the Fifth Circuit has recognized that a determination of whether a jailer violates the Due Process Clause by unduly detaining an individual depends on `the context of this case.'"70 Here, although Plaintiff disagrees that Ms. Gryder had sufficient cause to seek clarification of Plaintiff's sentence, it was objectively reasonable for Ms. Gryder to do so. It is undisputed that the Bill of Information and the Sentencing Order list the charges differently. If Plaintiff had been sentenced to five years (rather than two) for sexual battery, his correctly computed sentence would have resulted in a release date of February 28, 2017. The parties agree that the Defendants have an obligation to ensure that prisoners are not released early.71

Ms. Gryder's alleged failure to follow DOC policy requiring her to recognize that the Sentencing Order controlled over the subsequently amended minute entry does not dictate a different result. Because it was not objectively unreasonable for Ms. Gryder to seek clarification in the first place, it was not objectively unreasonable for Ms. Gryder to rely on that clarification once received. Moreover, "a prison official's failure to follow prison policies or regulations does not establish a violation of a constitutional right"72 and "negligent conduct does not implicate the due process clause."73 Here, where the amended minute entry and confirmation from the DA occurred in response to Ms. Gryder's request for clarification, it would be especially inconsistent to require that Ms. Gryder continue to rely on the earlier Sentencing Order, and the Court finds that constitutional minima are met where Ms. Gryder sought to be more conscientious rather than less with respect to her calculation of Plaintiff's release date.74

Although the Court finds that Ms. Gryder's action of seeking clarification and thereafter recalculating Plaintiff's release date a fourth time were objectively reasonable, there is a genuine issue of material fact regarding the date on which Ms. Gryder knew that this fourth recalculation was based on inaccurate information. While Ms. Gryder testified that she did not see the July 2016 Order until litigation commenced,75 Plaintiff has filed a Declaration stating that he sent the July 2016 Order to Ms. Gryder on August 17, 2016.76 Plaintiff was not released until almost five months after he allegedly provided Ms. Gryder with official, corrected information. In Whirl, the Fifth Circuit considered the liability of a jailer who had held plaintiff in jail almost nine months after dismissal of indictments against him. Notice of the dismissal was sent to the sheriff's office, but the sheriff testified that "he was not apprised of these proceedings."77 The Fifth Circuit found that the sheriff's ignorance for nine months after termination of proceedings against Whirl was unreasonable.78 Further, the court noted that "[f]ailure to know of a court proceeding terminating all charges against one held in custody is not, as a matter of law, adequate legal justification for an unauthorized restraint."79 While the question here is not as clear cut as that set out in Whirl, based on the timeline of "clarifications" from the criminal court and the Assistant DA, Plaintiff has raised a material issue of fact regarding when Ms. Gryder knew she had recalculated Plaintiff's release date based on incorrect information. Accordingly, while the Court finds that Ms. Gryder is entitled to qualified immunity for Plaintiff's over-detention from June 5, 2015 through August 17, 2016 and therefore summary judgment dismissing Plaintiff's claims against Ms. Gryder for that period of time is appropriate, a genuine issue of material fact precludes summary judgment in favor of Ms. Gryder for the time period of August 18, 2016 through January 13, 2017.80

D. Plaintiff's Claim of Supervisory Liability is Dismissed

Per his Complaint, Plaintiff asserts a "pattern and practice liability" claim against Secretary LeBlanc and Warden Goodwin.81 A supervisory official may be held liable under § 1983 "only if (1) he affirmatively participates in the acts that cause the constitutional deprivation, or (2) he implements unconstitutional policies that causally result in the constitutional injury."82 "In order to establish supervisor liability for constitutional violations committed by subordinate employees, plaintiffs must show that the supervisor act[ed], or fail[ed] to act, with deliberate indifference to violations of others' constitutional rights committed by their subordinates."83 "A supervisory official is held to a standard of `deliberate indifference,' which requires proof that the supervisor `disregarded a known or obvious consequence of his action.'"84

"Liability for failure to promulgate policy and failure to train or supervise both require that the defendant have acted with deliberate indifference."85 "To establish that a state actor disregarded a known or obvious consequence of his actions, there must be `actual or constructive notice' `that a particular omission in their training program causes ... employees to violate citizens' constitutional rights' and the actor nevertheless `choose[s] to retain that program.'"86 "`A pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference,' because `[w]ithout notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.'"87 "Without cabining failure-to-train claims in this manner (or, logically, failure-to-promulgate-policy claims), a standard `less stringent' than deliberate indifference would be employed, and `a failure-to-train claim would result in de facto respondeat superior liability.'"88

"[P]roof of deliberate indifference generally requires a showing of more than a single instance of the lack of training or supervision causing a violation of constitutional rights."89 Significantly, "[w]ithout more, the fact that an employee erred in one instance does not provide sufficient evidence to show that [a supervisor's] alleged actions in failing to train were objectively unreasonable."90 The Fifth Circuit has "stressed that a single incident is usually insufficient to demonstrate deliberate indifference."91 Generally, a plaintiff must "demonstrate `at least a pattern of similar incidents in which the citizens were injured.'"92 "Prior indications cannot simply be for any and all `bad' or unwise acts, but rather must point to the specific violation in question. That is, notice of a pattern of similar violations is required. While the specificity required should not be exaggerated, our cases require that the prior acts be fairly similar to what ultimately transpired...."93

Plaintiff argues that "the DOC has investigated and admitted that it has been overdetaining hundreds of inmates per month, more than sufficient to hold LeBlanc and Goodwin liable under Monell/Hinojosa."94 In support of his contention that this pattern of over-detention supports a finding of liability in this case, Plaintiff relies on a 2012 study conducted by Louisiana DOC staff (referred to as the "Lean Six Sigma") wherein, per Plaintiff, it was "found that as of January 2012, the DOC had a `1446 backlog of cases to have time computed,' resulting in an average processing delay of 110 days."95 Plaintiff further asserts that an October 2017 audit conducted into the DOC found "`DOC's process for calculating offender release dates is inconsistent, which can result in errors.'"96 Finally, Plaintiff points to a newspaper Op-Ed wherein the Louisiana Attorney General noted "`a layer of incompetence so deep that the Corrections Department doesn't know where a prisoner is on any given day of the week or when he should actually be released from prison.'"97 Plaintiff asserts that despite such incompetence, "there has not been a single example of `discipline or adverse employment action for DOC employees who have incorrectly computed sentences or release dates, from 2000 to the present.'"98

Even taking all the assertions set out by Plaintiff regarding backlogs, miscalculations, and incompetence as true, Plaintiff's over-detention does not involve such concerns.99 While Plaintiff correctly notes that the Lean Six Sigma report reflected a backlog of 1446 cases to have time computed as of January 2012,100 it is undisputed that Plaintiff's sentence was recalculated four times prior to the June 5, 2015 release date. Likewise, while Plaintiff correctly notes that the October 2017 audit found that the DOC's process for calculating offender release dates was inconsistent,101 the parties agree that June 5, 2015 was Plaintiff's correct release date had his sentence been subject to time-served, good time credits, and CTRP credits; and that February 28, 2017 was the correct release date had Plaintiff's sentence not be subject to those time reductions.102 Accordingly, this is not a case involving a delay in Plaintiff's sentence calculation, or an error in that calculation. Instead, Plaintiff complains that in calculating his release date, Ms. Gryder improperly relied on information that was wrong.103 Because Plaintiff has presented no evidence to support a finding that Warden Goodwin or Secretary LeBlanc were deliberately indifferent based on a pattern of sufficiently similar incidents, Defendants are entitled to summary judgment dismissing "Count Seven — Pattern and Practice Liability."104

E. Injunctive Relief

Plaintiff argues that he is entitled to seek injunctive relief because the sentencing mistake of which he complains is "capable of repetition, yet evading review." "This exception to the mootness doctrine has two prongs: `(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.'"105 "Under the second prong, the party invoking jurisdiction must show a `demonstrated probability' or `reasonable expectation,' not merely a `theoretical possibility,' that it will be subject to the same government action."106 Plaintiff bears the burden of proving both prongs.107

Defendants argue that Plaintiff has been released from prison and there is "no indication that Plaintiff intends to return to incarceration, or into a situation where he will then be held past his release date by the defendants."108 In opposition, Plaintiff asserts that "there is a reasonable expectation that this might happen to Mr. Thomas again" based on recidivism rates.109 In their reply, Defendants submit Plaintiff's deposition testimony, wherein he agrees that he has no "intention of returning to incarceration with the State of Louisiana."110 The Court will not assume that Plaintiff is likely to return to prison, and finds Plaintiff's argument regarding recidivism rates to be too theoretical to allow him to seek injunctive relief. Accordingly, Defendants are entitled to summary judgment dismissing Plaintiff's request for injunctive relief.

III. Conclusion

For the reasons set forth herein, IT IS HEREBY ORDERED that Plaintiff's Motion for Summary Judgment111 is DENIED.

IT IS FURTHER ORDERED that Defendants' Second Motion for Summary Judgment112 is GRANTED IN PART. IT IS HEREBY ORDERED that Plaintiff's claims against Ms. Gryder for the time period of June 5, 2015 through August 17, 2016 are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that Plaintiff's claim against Warden Goodwin and Secretary LeBlanc based on supervisory liability are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that Plaintiff's claim for injunctive relief is DISMISSED WITH PREJUDICE.

Based on the agreement of counsel during the August 12, 2019 motion hearing,113 IT IS FURTHER ORDERED that Plaintiff's claims against unidentified "Does 1-10," as well as any official capacity claims for monetary damages against Defendants, are DISMISSED WITH PREJUDICE.

A separate Order setting remaining pretrial deadlines and a trial date will issue.