IVAN L.R. LEMELLE, Senior District Judge.
Before the Court is Defendants' "Second Motion for Summary Judgment." Rec. Doc. 76. Plaintiff timely filed an opposition memorandum. Rec. Doc. 77. Defendants then requested (Rec. Doc. 81), and this Court granted (Rec. Doc. 83), leave to file a reply memorandum (Rec. Doc. 84). For the reasons discussed below,
This case arises out of the March 28, 2014 arrest of Roger D. Magee ("Plaintiff"). From sometime in 2010 through April or May of 2012, Plaintiff provided information to the Federal Bureau of Investigation ("FBI") about former Defendant Jerry Wayne Cox ("Cox"), a Pentecostal Minister in Franklinton, Louisiana, Cox's relationship with former Defendant Walter P. Reed ("Reed"), the former Washington Parish District Attorney for the 22nd Judicial District, and property damage insurance claims purportedly made by Cox and Reed. Rec. Doc. 23 at ¶¶ 1(a), 4(a). According to Plaintiff, Cox and Reed were involved in "the personal injury `business.'" Id. at ¶ 4(b). Cox would purportedly "refer clients to Reed, while Reed, in turn, would bring in counsel . . . to file pleadings, etc." Id. The men then "shared in [the] settlement proceeds." Id. According to Plaintiff, his cooperation with the FBI concerned Cox and Reed because it could have led the FBI to various crimes, including the "underreporting of income and tax fraud. . . ." Id. at ¶ 4(c).
At some point between August 4 and 6, 2012, Cox and Reed attended a religious meeting in Arkansas, Plaintiff's home state. Id. at ¶ 5(a). While in Arkansas, Cox met with Plaintiff and "said to Plaintiff something to the effect of, `You didn't scare us . . . much with the FBI; well, you scared us a little . . . but when I found out that Reed was ex-FBI, Reed said that he took care of it.'" Id. Cox further warned Plaintiff that, "[i]f and when you cross state lines [into Louisiana], Reed will handle you!" Id.
About two and a half months later, on October 25, 2012, an "Order for Body Attachment" was issued against Plaintiff for failing to pay child support payments to his ex-wife. Id. at ¶ 5(d). Even though the order was eventually recalled, Plaintiff alleges that the action was initiated by Cox and Reed. Id. at ¶¶ 5(e). To support this assertion, Plaintiff notes that his ex-wife never contacted him requesting payment, the order was issued only two months after Cox made his threats, and Defendant Randy Seal ("Defendant Seal"), the Sheriff for Washington Parish, in partnership with Reed's office, participated in a "`roundup' of parents who were in arrears on their child support payments during 2013." Id. at ¶¶ 5(e)-(f) (emphasis deleted).
Plaintiff subsequently sought to visit his family in Louisiana, so he contacted the Office of Child Support Enforcement in Arkansas. Id. at ¶ 5(g). He was assured that he was protected by the court's recall order, but that he could take the recall order with him to Louisiana as a precaution. Id.
On Friday, March 28, 2014, Plaintiff traveled to his aunt's home in Franklinton, Louisiana for a relatively large family gathering. Id. at ¶ 6. Around 3:00 p.m., while Plaintiff was seated on the porch, holding his sixteen-month-old grandson, five police units converged on the premises. Id. at ¶¶ 6-7. The officers on the scene included Defendants Corbet Hunt, Darren Spears, Michelle Brumfield, Mitchem Nesmith, and Damen Mitchell ("Defendant Officers"). Id. at ¶ 11. These officers, clothed in body armor and many with their weapons drawn, approached the house. Id. at ¶ 7.
The lead officer "motioned with his finger to Plaintiff." Id. at ¶ 8. Plaintiff stood and "stated that, if this had to do with child support payments, he was `in compliance' with the State of Arkansas and that he could show them court papers that relieved Plaintiff of his obligations due to his disabilities." Id. Plaintiff then proceeded toward open double doors leading to the dining room in order to retrieve the recall order. Id. at ¶ 9. In response, Defendant Spears tased Plaintiff in the back; Plaintiff "crashed head first onto the concrete floor." Id. Three or four officers "[came] down on his back" and Plaintiff's left hand was handcuffed. Id. There is some dispute about whether or not Plaintiff's right hand was handcuffed before or after Defendant Spears tased Plaintiff a second time. Id.; see also Rec. Doc. 77 at 4 (citing Rec. Doc. 77-4 at 23).
Eventually, Plaintiff stood and vomited. Id. at ¶ 12. Even though his family requested an ambulance, informing the officers that Plaintiff was diabetic, Plaintiff "was shoved into the rear of a patrol car where Plaintiff drifted in and out of consciousness as he was transported to the Washington Parish Jail in Franklinton, Louisiana." Id. at ¶¶ 12-13. Plaintiff was kept in a room in the Washington Parish Jail for approximately half an hour before he was booked. Id. at ¶ 14. During that time, one of the deputies purportedly "bragged, `In case you ever want to come looking for me, I'm the one who tased you, you son-of-a-bitch.'" Id.
As a result of this incident, Plaintiff alleges that he was unconscious for some time, suffered a severe traumatic brain injury, injuries to his left foot, left knee, and shoulder, and subsequently experienced various symptoms, including profound headaches, disorientation, dizziness, and fatigue. Id. at ¶ 10. He claims that Reed, aware of the recall order, informed Defendant Seal that the sheriff's office had probable cause to arrest Plaintiff. Id. at ¶ 27(b). Further, Reed and Cox purportedly told Defendant Seal that Plaintiff's arrest should involve "a large deployment of officers and showing of force" and "the use of force against Plaintiff." Id. at ¶ 27(c).
Once incarcerated in Washington Parish Jail, Plaintiff claims that he was assigned to a block with black mold on the walls, little ventilation, and where inmates were forced to sleep on the floor. Id. at ¶ 17. Plaintiff alleges in his complaint that the jail is intentionally overcrowded in order to increase the money, based on the number of inmates, that is paid by the state to Defendant Seal. Id. at ¶ 18.
Further, despite Plaintiff's head injury and subsequent complaints, Plaintiff maintains that he was not given a CT scan for one and one-half months. Id. at ¶ 19. He was also purportedly denied insulin for three to four days at a time and medication for his blood pressure for approximately a week at a time. Id. Consequently, Plaintiff submitted four written "Administrative Remedy Procedure" ("ARP") complaints. Id. at 21. He never received a written response. Id. Accordingly, Plaintiff argues that Defendants Seal and Miller operate an understaffed facility that fails to provide adequate medical treatment to inmates and has a policy ("either explicit or de facto") of ignoring ARP complaints. Id. at ¶ 20.
Pursuant to a plea agreement, Plaintiff eventually pled guilty to violations of Louisiana Revised Statute §§ 14:75 (failure to pay child support) and 14:108 (resisting an officer). Id. at ¶ 23. He was placed on probation for five years and released from jail on July 7, 2014 (101 days after his arrest). Id.
On May 1, 2015, Plaintiff filed an amended complaint, alleging (1) violations of his civil rights under 42 U.S.C. § 1983, including (a) false arrest and excessive force in violation of the Fourth and Fourteenth Amendments (id. at ¶¶ 25-31); (b) procedural due process violations and false imprisonment in violation of the Fourth, Fifth, and Fourteenth Amendments (id. at ¶¶ 32-37); (c) free speech retaliation in violation of the First Amendment (id. at ¶¶ 38-47); and (d) conditions of confinement that violated due process (id. at ¶¶ 48-58); (2) municipal violations under § 1983 and Monell v. Department of Social Services of New York, 436 U.S. 658 (1978), including those related to (a) former Defendant Reed's policies in the DA's office (id. at ¶¶ 59-63) and (b) Defendant Seal's policies in the Sheriff's Office (id. at ¶¶ 64-68); and (3) battery and excessive force in violation of Louisiana law (id. at ¶¶ 69-73). Plaintiff prayed for a declaratory judgment, an injunction, compensatory damages, damages incurred as a result of physical and mental injuries (an amount not less than $30,000,000), punitive damages, attorneys' fees, and other costs. Id. at 33-34.
On June 15, 2015, Reed filed a motion to dismiss for failure to state a claim. Rec. Doc. 29. On August 19, 2015, this Court granted the motion, dismissing all claims against Reed, because (1) Plaintiff's false arrest and First Amendment retaliation claims were barred by Heck v. Humphrey, 512 U.S. 477 (1994), (2) Plaintiff's excessive force claim failed to show that the actions of the arresting officers were in some way caused by Reed and Plaintiff failed to satisfy his burden of showing that Reed was not entitled to qualified immunity, (3) Plaintiff's due process claim related to bond failed to show that Reed was "causally connected" to Plaintiff's bail problems, and (4) Plaintiff's Monell claim failed to show that any of the supposedly improperly-trained district attorneys participated in the claims brought against Plaintiff. Rec. Doc. 37. Plaintiff appealed the Order and Reasons. Rec. Doc. 40.
On July 22, 2015, Defendant Officers and Defendants Mike Haley, Miller, and Seal filed a motion for partial judgment on the pleadings or for partial summary judgment. Rec. Doc. 34. On August 31, 2015, the same Defendants filed a motion for summary judgment. Rec. Doc. 38. On October 19, 2015, this Court granted both motions. Rec. Doc. 49. Specifically, we found that the claims for false arrest, false imprisonment, and free speech retaliation previously dismissed against Reed must also be dismissed against these Defendants pursuant to Heck. Id. at 9-15. Similarly, Plaintiff's Monell claims for false arrest and false imprisonment were found to be Heck-barred and were accordingly dismissed. Id. at 18-20. Nonetheless, we found that Plaintiff's excessive force claims, including his Monell claims based on excessive force, were not barred by Heck; therefore, the motion to dismiss/motion for summary judgment was denied to the extent it sought to dismiss the excessive force claims against these Defendants. Id. at 15-17, 20. The claims for battery and excessive force in violation of Louisiana law were dismissed as duplicative with Plaintiff's § 1983 excessive force claims. Id. at 17-18. Finally, Plaintiff's procedural due process claims for denial of bail were dismissed because there was no evidence to suggest that Defendants were in any way related to Plaintiff's denial of bail. Id. at 20-24.
On September 14, 2015, Cox filed a motion for judgment on the pleadings or, alternatively, a motion for summary judgment. Rec. Doc. 39. On October 28, 2015, this Court granted the motion and dismissed Plaintiff's claims against Cox with prejudice. Rec. Doc. 54. Specifically, we found that Plaintiff's claims for false arrest and imprisonment and for free speech retaliation were barred by Heck. Id. at 10-15. His claims for excessive force failed because they did not show how Cox was "causally connected" to the claim. Id. at 15-16. Finally, his claims for battery and excessive force under Louisiana law were dismissed as duplicative. Id. at 16-17. Plaintiff appealed the Order and Reasons. Rec. Doc. 56.
On December 9, 2015, we granted Plaintiff's motion to stay pending the outcome of his appeals (Rec. Docs. 40, 56). Rec. Doc. 58. On January 22, 2016, the Fifth Circuit found that it lacked jurisdiction over the appeals, because we had not disposed of all claims and parties before the appeals were filed. Rec. Doc. 59 at 2. On March 17, 2016, the stay was lifted. Rec. Doc. 63. After trial was rescheduled for March 27, 2017, Defendant Officers and Defendants Haley, Miller, and Seal, filed the instant motion for summary judgment. Rec. Doc. 76.
In their motion for summary judgment, Defendants contest (1) the claims related to excessive force, encompassing Plaintiff's claims of severe depression, and (2) the claims related to the conditions of Plaintiff's confinement, including any alleged policy to refuse adequate medical care. Rec. Doc. 76-1 at 4, 11.
The parties appear to agree that the first tasing is not actionable, based on this Court's earlier Order and Reasons finding certain actions barred by Heck. See Rec. Doc. 76-1 at 4 (citing Rec. Doc. 49); Rec. Doc. 77 at 12.
According to Defendants, the second tasing, which took place 13 seconds after the first, was in "probe mode," meaning that the barbs fired from the taser were still in Plaintiff's body from the first tasing. Rec. Doc. 76-1 at 4 (citing Rec. Doc. 76-5 at 6).
Id. at 9.
However, Defendants suggest that during his deposition, Plaintiff testified that he was "tased more than twice, both before and after he was handcuffed." Id. at 5 (citing Rec. Doc. 76-6 at 3-23) (emphasis in original).
After a recess during the deposition, however, Plaintiff "clarified" his testimony. Id. at 6. At that time, Plaintiff's counsel stated that "the witness wants to make something clear about some testimony that he's not sure was clear concerning the tasing and the handcuffing." Rec. Doc. 76-6 at 21. Plaintiff then testified "What I wanted to make clear was when I was on the floor, they had my hand . . . and they tased me . . . I'm guessing what would be the second time, I — they . . . bring my hand back around and they . . . handcuff me, and then the taser goes off again. . . ." Id.
Plaintiff maintains that Defendants misrepresent his testimony. After Plaintiff responded "Yes, sir," to defense counsel's question "And that's when they got the other out and handcuffed you," defense counsel repeated the question: "Okay. So you were handcuffed after they tased you the second time?" Rec. Doc. 77-3 at 36. Plaintiff responded, "Second or possibly the third time. The taser just kept going." Id. at 36-37. In other words, it appears that Plaintiff maintains that he consistently testified that he was unsure when the second tasing occurred. Plus, before the recess and subsequent "clarified testimony," the following exchange took place:
Rec. Doc. 77-3 at 39-40.
In addition to the timing of the second tasing (and therefore the validity of any claims arising from it), Defendants also contest the severity of any injury allegedly resulting from the second tasing. Rec. Doc. 76-1 at 10. They suggest that, while the first, non-actionable tasing allegedly made Plaintiff fall and strike his head, Plaintiff "has not suggested a mechanism through which the second tasing could have led to a brain injury." Id. Further, Defendants maintain that Plaintiff's expert, Dr. Kevin Greve, stated that "[n]othing related to [Plaintiff's] arrest or subsequent incarceration has caused new or worsening brain damage." Id. (quoting Rec. Doc. 76-7 at 2).
Plaintiff responds that the second tasing "proximately caused `severe and progressively worsening depression." Rec. Doc. 77 at 8. Dr. Greve apparently reviewed Defendants' memorandum in support of their motion and stated that
Rec. Doc. 77-13 at 3 (emphasis in original).
In their reply, Defendants argue that Dr. Greve's declaration (Rec. Doc. 77-13 at 2-5) should not be considered because it is an expert report initially filed as an attachment to Plaintiff's opposition on January 24, 2017 and expert reports had to be exchanged by January 20, 2017. Rec. Doc. 84 at 6-7. To support their assertion that the declaration is an expert report, they noted that it "contains expert opinions, expert commentary, and elaborates extensively on Dr. Greve's original October 14, 2016, timely report." Id. at 7.
Further, even if the Court were willing to overlook the untimeliness of the declaration/report, Defendants argue that it suffers from issues under Daubert v. Dow Pharmaceuticals, Incorporated, 509 U.S. 579 (1993): (1) "it offers no scientific background for Greve's opinion that the two second tasing that indisputably took place thirteen seconds after the first, and was of shorter duration, would have . . . somehow lead to a [more] severe psychological reaction"; (2) Dr. Greve does not explain how Plaintiff's incarceration might have contributed to Plaintiff's depression or in what proportion; and (3) Dr. Greve does not consider other factors that might have impacted his opinion, including Plaintiff's "pre-existing depression, his penchant for violence, his substance abuse problems, [and] a prior suicide attempt. . . ." Rec. Doc. 84 at 7-8. Because Dr. Greve "failed to make any attempt to eliminate some of the most obvious causes for [Plaintiff's] depression, i.e., make a differential diagnosis . . . [h]is methodology is . . . unreliable [and t]he Daubert standard. . . precludes the use of the expert report and Declaration." Id.
Finally, Defendants argue that Dr. Greve's declaration is comparable to a "sham affidavit." Rec. Doc. 84 at 9. They explain that his original report does not distinguish between damages caused by the first tasing, second tasing, and/or Plaintiff's incarceration and his declaration is merely an attempt to attribute all damages to the second tasing (arguably the only avenue for recovery remaining for Plaintiff). Id. In Defendants' words, "[Plaintiff's] attorney specifically advised Greve that the first tasing is not [] actionable. . . . Greve then, naturally, focuses in his Declaration on the second tasing, concluding — voila! — that the second tasing was more significant than the first. . . ." Id.
In Plaintiff's § 1983 claims against Defendants Seal, Haley, and Miller, Defendants recognize four specific claims related to the conditions of Plaintiff's confinement: (1) the existence of a policy to intentionally overcrowd Washington Parish Jail, forcing certain inmates, including Plaintiff, to sleep on the floor; (2) the existence of a policy to allow the jail walls to remain "caked" with black mold and to improperly ventilate the jail; (3) the existence of either an explicit or de facto policy against providing adequate medical care to inmates; and (4) failure to provide adequate administrative remedies to inmates. Rec. Doc. 76-1 at 11.
In his opposition, Plaintiff only addresses the last two claims. He specifically admits that he "is not making claims for mold-related injuries." Rec. Doc. 77 at 16 n.1. However, he simply does not address the arguments that Defendants raised regarding any alleged overcrowding. See Rec. Doc. 76-1 at 12. Therefore, we will assume that there is no genuine issue of material fact as to these claims, such that Defendants are entitled to judgment as a matter of law.
Further, it appears that Plaintiff is treating his claims of inadequate medical treatment and administrative remedies as a single, related claim. He argues that "the focus of his claim is on the policies and conditions that affected both Magee and other detainees, viz., the failure to administer and monitor medications, and the
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting FED. R. CIV. P. 56(c)). See also TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). A genuine issue exists if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant must point to "portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. If and when the movant carries this burden, the non-movant must then go beyond the pleadings and present other evidence to establish a genuine issue. Matsushita Elec. Indus. Co., Ltd. V. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
However, "where the non-movant bears the burden of proof at trial, the movant may merely point to an absence of evidence, thus shifting to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial." Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). Conclusory rebuttals of the pleadings are insufficient to avoid summary judgment. Travelers Ins. Co. v. Liljeberg Enter., Inc., 7 F.3d 1203, 1207 (5th Cir. 1993).
Defendants argue that Plaintiff's "clarified" deposition testimony should be dismissed in the same way that the Fifth Circuit dismisses "sham affidavits" that, without explanation, impeach sworn testimony in an attempt to defeat summary judgment. Rec. Doc. 76-1 at 7-8 (citing S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996) ("It is well settled that this court does not allow a party to defeat a motion for summary judgment using an affidavit that impeaches, without explanation, sworn testimony"); Thurman v. Sears, Roebuck & Co., 952 F.2d 128, 137 n.23 (5th Cir. 1992); Metro Cty. Title Inc. v. F.D.I.C., 13 F.3d 883, 887 n.16 (5th Cir. 1994); Albertson v. T.J. Stevenson & Co., 749 F.2d 223, 228 (5th Cir. 1984).
Plaintiff counters that the "sham affidavit" argument is invalid in light of all of Plaintiff's deposition testimony, which demonstrates that he consistently stated that he was not sure when the second tasing took place and that it might have been after he was handcuffed. Rec. Doc. 77 at 7.
Defendants respond that "[t]he overwhelming evidence shows that the second . . . tasing occurred before plaintiff was placed in handcuffs" and that "[t]he mere argued existence of a factual dispute will not defeat an otherwise properly supported motion." Rec. Doc. 84 at 2 (citing Anderson, 477 U.S. at 248 ("a party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.'") (internal citations omitted)).
After considering the parties' arguments and reading the deposition testimony in full, it does not appear to the Court that Plaintiff "clarified" his testimony merely in an attempt to preserve a genuine issue of fact, but because he was sincerely uncertain about when the second tasing occurred. Defendants present testimony from officers stating that the second tasing occurred before Plaintiff's right hand was cuffed. Thus, there is conflicting testimony as to the timing of the second tasing. We cannot weigh the evidence or make credibility determinations on a motion for summary judgment. Blank v. Bell, 634 F. App'x 445, 447 (5th Cir.), cert. denied, 136 S.Ct. 2036 (2016) (citing Deville v. Marcantel, 567 F.3d 156, 163-64 (5th Cir. 2009)). Thus, it is for the jury to consider all of the evidence and determine if the second tasing occurred before or after Plaintiff was fully handcuffed. If the tasing occurred after he was handcuffed, Plaintiff's claims are certainly not barred by Heck.
This Court's earlier Order specifically found that "Plaintiff's allegations that excessive force was used after he was handcuffed certainly do not invalidate his guilty plea to resisting arrest prior to being restrained, and therefore this claim is not Heck-barred." Rec. Doc. 49 at 16. We recognized that, at the time, Plaintiff was alleging only "that the officers came down on his back after he fell to the ground, handcuffed him, and [then] tased him once more. (Rec. Doc. 23 at 13)." Id. at 16 n.6.
Nonetheless, Plaintiff
At its core, our earlier ruling barred any claims that would undermine Plaintiff's guilty plea to resisting arrest. Plaintiff is now arguing that his guilty plea only applied to his non-compliant conduct before the second tasing and we will entertain those arguments now.
In Bramlett, officers responded to reports of a "scuffle" at a daiquiri shop. 2004 WL 2988486, at *1. Upon arriving at the scene, Derrick Bramlett, who was sitting in his vehicle, was identified as one of the individuals involved in the scuffle. Id. The officers approached the vehicle, one standing in front of the vehicle and the other approaching from the driver's side. Id. Bramlett was asked to exit the vehicle, but he instead "started the engine and accelerated toward" the officer in front of him. Id. The officers fired several shots; Bramlett survived, but "was shot once in the head and twice in the back." Id. Bramlett was subsequently found guilty of aggravated battery against the officer standing in front of the vehicle and of three counts of vehicular negligent injury to pedestrians. Id. at *2. In Bramlett's subsequent § 1983 action, Bramlett alleged that the officers used excessive force when they shot at him. Id. The officers argued on summary judgment that Bramlett's excessive force claims were barred by Heck. Id. Bramlett denied that "a judgment in his favor on the excessive force issue would be inconsistent with his criminal convictions because the battery against [the officer] occurred prior to the use of excessive force." Id. After considering (1) "the specific elements that comprise[d] the conviction at issue" and (2) "the specific facts being alleged in the civil case," the court determined that Bramlett's aggravated battery conviction had no preclusive effect under Heck on the excessive force claim. Id. at *4. During Bramlett's trial, the officer testified that he had jumped out of the moving vehicle's path before shots were fired; "[t]hus, [the officer] did not shoot Bramlett in self-defense in order to protect himself from an attempted murder or from an aggravated battery" and "a finding in this case that the officers stepped over the line in shooting Bramlett would do nothing to undermine the conviction for aggravated battery." Id. See also Smithart v. Towery, 79 F.3d 951 (9th Cir. 1996).
In Bush, the plaintiff threw a cup of ice water at a witness being interviewed by police. 513 F.3d at 496. An officer then attempted to arrest her for simple battery. Id. When her left hand was handcuffed, the plaintiff pulled her right arm away. Id. The officer testified that, while he was trying to cuff the plaintiff's right hand, she continued to resist and the two of them fell onto the rear window of a nearby vehicle. Id. The plaintiff testified that she stopped resisting, both hands were cuffed, and that the officer
Id. at 498. In the plaintiff's criminal trial, the state court judge found that the officer "advised the defendant that she was under arrest and that as he was attempting to cuff her she struggled to get free from him to strike this other person . . . So, I find the defendant guilty of res[isting]." Id. at 499. According to the Fifth Circuit, "[t]he court made no findings regarding how long Bush's resistance lasted or at what point Bush was injured." Id. Ultimately, "[b]ecause Bush . . . produced evidence that the alleged excessive force occurred after she stopped resisting arrest, and the fact findings essential to her criminal conviction are not inherently at odds with this claim, a favorable verdict on her excessive force claims will not undermine her criminal conviction." Id. at 500.
In the instant case, Defendants argue "that the timing of the handcuffing is irrelevant because the Fifth Circuit recognizes a Heck bar if the incident involves a single interaction." Rec. Doc. 84 at 5 n.1 (citing DeLeon v. City of Corpus Christi, 488 F.3d 649, 656 (5th Cir. 2007)). More specifically, Defendants assert that "a claim of full innocence coupled with a guilty plea means that the entire excessive force claim is Heck-barred if it involves a single interaction, as it does here." Id. at 6 (citing Daigre v. City of Waveland, Miss., 549 F. App'x 283, 287 (5th Cir. 2013); Arnold v. Town of Slaughter, 100 F. App'x 321 (5th Cir. 2004) (in which the plaintiff asserted in the civil case that he had done nothing wrong and was viciously attacked by the officer for no reason, but the judge in the earlier criminal case made a specific finding that the plaintiff resisted the officer by being hostile and threatening; thus, the Fifth Circuit determined that a judgment in the plaintiff's favor based upon the theory that the officer used force against him for no reason whatsoever would be contrary to this standing conviction); DeLeon, 488 F.3d at 656-57 (where the "complaint maintains that [the civil plaintiff/criminal defendant] did nothing wrong" and still thought he was innocent)).
However, Plaintiff
513 F.3d at 499; see also Daigre, 549 F. App'x at 287 ("Unlike the allegations in Bush, Daigre's broad claims of innocence relate to the entire arrest encounter, and not merely a discrete part of it."). Similarly, if we read particular sentences in Plaintiff's complaint or memoranda out of context, it may appear that he was claiming complete innocence. However, he explicitly admitted to turning and walking away from the officers on the scene after being told in a non-verbal way to "come here." Rec. Doc. 77 at 3. He does not deny resisting in that way; rather, he denies resisting after being tased the first time and alleges that the second tasing was excessive. Indeed, contrary to Defendants' overbroad argument, the court in Bramlett noted that "nothing in Heck and its progeny support the proposition that a § 1983 excessive force claim is barred merely because the same set of events give rise to both the criminal conviction and the excessive force claim." 2004 WL 2988486, at *4.
Here, the record does not appear to contain the bill of information to which Plaintiff pled guilty, the factual basis for his plea, or findings of fact by a judge or jury. The Ninth Circuit faced a similar situation in Smith v. City of Hemet, where plaintiff admitted to obstructing justice by repeatedly refusing to cooperate after being given verbal commands from officers; the officers
Id.
In Pertuz v. Normand, the § 1983 plaintiff previously pled guilty to resisting arrest under Louisiana Revised Statute § 14:108; as to the basis for her guilty plea, the judge stated merely that "I find that there is a factual basis which exists for the defendant to plead guilty to the above mentioned claims." No. 13-0293, 2014 WL 1246839, at *1 (E.D. La. Mar. 25, 2014). The court ultimately determined that her excessive force claims were not Heck-barred, because the plaintiff's alleged sequence of events (some resistance followed by excessive force
Here, we do not know the factual basis for Plaintiff's guilty plea. Accordingly, it is possible that Plaintiff pled guilty to resisting arrest based solely on his initial reaction (standing and walking away from the officers). If this is true, then any judgment in his favor on his excessive force claims for police conduct following the first tasing would not tend to undermine Plaintiff's earlier guilty plea.
The parties disagree as to the appropriate standard to be applied to Plaintiff's claims of inadequate medical care and administrative remedies. This is because Plaintiff's claims may arise under one of two theories: a challenge of (1) a "condition of confinement" or (2) an "episodic act or omission." Shepherd v. Dallas Cty., 591 F.3d 445, 452 (5th Cir. 2009) (quoting Hare v. City of Corinth, Miss., 74 F.3d 633, 644-45 (5th Cir. 1996)). If Plaintiff properly states a claim challenging a condition of confinement, Defendants' intent may be inferred. Id. "More often, however, a plaintiff's claim, properly characterized, faults specific jail officials for their acts or omissions because the plaintiff cannot establish the existence of an officially sanctioned unlawful condition." Id. "[T]he focus of the claim is one individual's misconduct, the detainee is required to prove intent—specifically, that one or more jail officials `acted or failed to act with deliberate indifference to the detainee's needs.'" Id. (quoting Hare, 74 F.3d at 648).
Plaintiff argues that he has alleged a policy or condition. Defendants argue, in a conclusory manner, that Plaintiff must demonstrate a sufficiently serious injury and deliberate indifference. Nonetheless, Plaintiff maintains that, even if we find the evidence insufficient to support a claim related to the conditions of confinement, he has adequately alleged deliberate indifference. Accordingly, we will consider Plaintiff's claim under both standards.
Based on Plaintiff's testimony and the affidavit of former jail employee Tanner Rochester, Plaintiff alleges that the focus of his claim is the jail's official policy or pervasive condition. Rec. Doc. 77 at 16. However, it is important to note that the standard proposed by Plaintiff is rarely used and is available only when there "is a challenge to `general conditions, practices, rules, or restrictions of pretrial confinement' . . . such as `the number of bunks per cell, mail privileges, disciplinary segregation, etc.'" Estate of Henson v. Wichita Cty., Tex., 795 F.3d 456, 463 (5th Cir. 2015) (quoting Hare, 74 F.3d at 644; Shepherd, 591 F.3d at 452).
Plaintiff claims that there is either an explicit or de facto policy to provide inadequate medical care. The affidavit of Tanner Rochester (which Defendant argues should be ignored because it is not based on personal knowledge of the jail at the time of Plaintiff's confinement) suggests that there was, at most, an
Shepherd, 591 F.3d at 452 (citing Hare, 74 F.3d at 645; Bell v. Wolfish, 441 U.S. 520, 539 (1979)).
Ultimately, to succeed on a conditions of confinement claim, Plaintiff must be able to show and, at the summary judgment stage, must be able to point to some evidence that:
Estate of Henson, 795 F.3d at 468 (citing Duvall v. Dallas Cty., Tex., 631 F.3d 203, 207 (5th Cir. 2011) (quoting Hare, 74 F.3d at 645); Edler v. Hockley Cty. Comm'rs Court, 589 F. App'x 664, 668 (5th Cir. 2014)).
In Shepherd, the plaintiff "presented extensive independent evidence" to prove a de facto policy of failing to properly treat inmates; the Fifth Circuit determined that such a policy was "reasonably infer[red]" from a county-commissioned report, a United States Department of Justice report, jail officials' affidavits, and other documentary evidence indicating that the inmates received "grossly inadequate" treatment. 591 F.3d at 453.
In Estate of Henson, the plaintiffs alleged that a doctor was only required to be at the jail three times per week; nurses were not required to be at the jail 24-hous per day; the nurses were licensed vocational nurses ("LVNs"), not registered nurses; the LVNs were not supervised, as required by law; and "the lack of standing orders regarding pneumonia, Emphysema, and Chronic Obstructive Pulmonary Disorder (COPD), when combined with [the doctor's] absence, the LVNs lack of supervision, and [the doctor's] nurse intimidation, forced LVNs to illegally diagnose and treat Henson." 795 F.3d at 468-69. Even though the plaintiffs "identified a combination of staffing policies and practices," the Fifth Circuit determined that the staffing arrangement was reasonably related to providing medical attention to inmates and did not amount to punishment. Id. at 469 (citing Bell, 441 U.S. at 542). To prove that the medical system was constitutionally deficient, the plaintiffs needed to present evidence of "more than an isolated incident; [they] `must demonstrate a pervasive pattern of serious deficiencies in providing for his basic human needs.'" Id. (citing Edler, 589 F. App's at 668 (quoting Shepherd, 591 F.3d at 454); Duvall, 631 F.3d at 208).
In the instant case, Plaintiff alleges that there is a de facto policy to refuse to administer and monitor medications, falsify medical records, and destroy ARP complaint forms submitted by inmates. Rec. Doc. 77 at 16; see also Rec. Doc. 77-10 at ¶¶ 8-11. Looking at the evidence presented, there appear to be sporadic lapses or delays in the administration of medication to Plaintiff. Rec. Doc. 77 at 8-9. These failures do not appear "sufficiently extended or pervasive." Rather, "the complained-of harm [appears to be] a particular act or omission of one or more officials." Smith v. Kaufman Cty. Sheriff's Office, No. 10-703, 2011 WL 7547621, at *11 (N.D. Tex. Dec. 14, 2011), report and recommendation adopted sub nom., 2012 WL 850777 (N.D. Tex. Mar. 14, 2012). In other words, particular jail personnel were "interposed between the detainee and the municipality, such that the detainee complains first of a particular act of, or omission by, the actor and then points derivatively to a policy, custom, or rule (or lack thereof) of the municipality that permitted or caused the act or omission." Estate of Henson, 795 F.3d at 463 (citing Scott v. Moore, 114 F.3d 51, 53 (5th Cir. 1997)). Further, to prove some policy or condition, Plaintiff relies solely on his own testimony and the affidavit of a former jail employee.
"A supervisor cannot be held liable under section 1983 on the basis of respondeat superior." Southard v. Tex. Bd. of Criminal Justice, 114 F.3d 539, 550 (5th Cir. 1997) (citing Monell, 436 U.S. at 694 n.58). "Rather, the misconduct of the subordinate must be affirmatively linked to the action or inaction of the supervisor." Id. at 550-51. For example, "a municipality can be liable for failure to train its employees when the municipality's failure shows `a deliberate indifference to the rights of its inhabitants.'" Farmer v. Brennan, 511 U.S. 825, 840 (1994) (quoting Canton v. Harris, 489 U.S. 378, 389 (1989)). Thus, for a party to succeed on a failure-to-train claim, he or she must demonstrate that (1) the training procedures were inadequate; (2) the defendant was deliberately indifferent in adopting its training policy; and (3) the inadequate training policy directly caused the constitutional violation. Sanders-Burns v. City of Plano, 594 F.3d 366, 381 (5th Cir. 2010); see also Saenz v. City of El Paso, 637 F. App'x 828, 832 (5th Cir. 2016).
Ordinarily, to demonstrate deliberate indifference, "a plaintiff may allege that the municipality had `[n]otice of a pattern of similar violations,' which were `fairly similar to what ultimately transpired.'" Saenz, 637 F. App'x at 832 (citing Sanders-Burns, 594 F.3d at 381). "Alternatively, a plaintiff may allege deliberate indifference if the specific injury suffered is a `patently obvious' or `highly predictable' result of inadequate training." Id. (quoting Connick v. Thompson, 563 U.S. 51, 64 (2011)). Notably, "[w]here an inmate can show no more than `ordinary negligence,' such lapses by jail staff do not demonstrate `a condition so threatening as to implicate constitutional standards.'" Kitchen v. Dallas Cty., Tex., 759 F.3d 468, 483 (5th Cir. 2014), overruling on other grounds recognized by Thompson v. Beasley, 309 F.R.D. 236 (N.D. Miss. July 13, 2015) (quoting Coleman v. Sweetin, 745 F.3d 756, 764 (5th Cir. 2014)). As to claims of inadequate medical care, the plaintiff "must establish `deliberate indifference to
First, Defendants argue that Plaintiff has failed to show that any violation was sufficiently serious. Rec. Doc. 76-1 at 15. Second, Defendants maintain that Plaintiff cannot prove deliberate indifference. Id. at 17.
The Fifth Circuit "has held that minor ailments do not constitute a serious medical need. . . ." Pierce v. Scott, 162 F.3d 1159 (5th Cir. 1998) (citations omitted); see also Tasby v. Cain, 86 F. App'x 745, 746 (5th Cir. 2004) (determining that the plaintiff's assertion that he suffered a rash was not a sufficiently "serious harm" under § 1983); Wesson, 910 F.2d at 284 (finding that "swollen wrists with some bleeding, do not constitute such a `serious medical need' that any minor delay caused by the defendants in delivering [the plaintiff] to the care of medical personnel could be construed as `deliberate indifference'"); Patterson v. Orleans Par. Dist. Attorney's Office, No. 06-7322, 2007 WL 5063238, at *17 (E.D. La. April 16, 2007), report and recommendation adopted sub nom., 2008 WL 915447 (E.D. La. Mar. 31, 2008) (finding that "back or leg pain, `nerves' and blood pressure" did not present serious medical needs that posed a substantial risk of harm during the plaintiff's incarceration); Claudet v. Jones, No. 10-87, 2010 WL 4365512, at *4 (E.D. La. Oct. 27, 2010) (finding that the plaintiff's back, neck, shoulder, and chest pain, as well as his high blood pressure, were not serious medical needs); Lusk v. Dallas Cty. Sheriff's Dep't, No. 00-662, 2002 WL 31757706, at *4 (N.D. Tex. Nov. 29, 2002) (finding that a herniated disc and degenerative spinal disease were not sufficiently serious).
Here, Defendants argue that, according to Plaintiff's own expert, Dr. Fadi Hendee, "[Plaintiff] could have sustained a serious injury but . . . he did not." Rec. Doc. 76-1 at 15. Specifically, Dr. Hendee made the following findings:
Rec. Doc. 76-10 at 2 (emphasis added). Based on these findings, Defendants argue that Plaintiff's symptoms "might" have been caused by a failure to receive medication. Rec. Doc. 76-1 at 15. Further, and more significantly, Defendants argue that dizziness and headaches do not amount to the type of serious injury that would give rise to an actionable constitutional claim. Id.
In response, Plaintiff argues that he suffered from headaches and a burning around the top of his head and that Dr. Hendee acknowledged that the failure to administer insulin could cause dehydration and other complications, "including the headaches that [Plaintiff] was experiencing." Rec. Doc. 77 at 11.
Based on the existing precedent, including Pierce, Tasby, Wesson, Patterson, Claudet, and Lusk, we agree with Defendants that general claims of dizziness and headaches are not "serious injuries" that could give rise to a claim under § 1983. Plus, it is not insignificant that Plaintiff's expert merely states that these injuries could have resulted from the alleged failure of jail personnel to administer Plaintiff's insulin medication.
Defendants maintain that Plaintiff cannot show deliberate indifference because "his basic medical needs were met," as evidenced by the medical records maintained during Plaintiff's incarceration. Rec. Doc. 76-1 at 17 (citing Gobert v. Caldwell, 463 F.3d 339, 347 n.24 (5th Cir. 2006) ("Medical records of sick calls, examinations, disagnoses, and medications may rebut an inmate's allegations of deliberate indifference") (quoting Bannuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995))). Specifically, records show that Plaintiff's medication was administered and adjusted,
Plaintiff responds that, even though medications for his diabetes and hypertension were given to jail personnel, along with instructions for their use, the jail failed to administer these medications to Plaintiff for the first five days of his imprisonment (March 28-April 2, 2014). Rec. Doc. 77 at 8-9 (citing Rec. Doc. 77-11 at 2). Further, the medication was not administered on seven days throughout April. Id. at 9 (citing Rec. Doc. 77-11 at 2). Plaintiff further claims that some of the jail records were falsified. Id.; see also Rec. doc. 77-3 at 90-94. Even though they purport to show that Plaintiff refused to have his blood sugar levels checked (see Rec. Doc. 77-11 at 3-7), Plaintiff testified that his levels were never checked during his incarceration and that "[t]hey did not have a way to check your sugar. Nobody down there ever got their sugar checked that I'm aware of" (Rec. Doc. 77-3 at 87). Further, former jail employee Tanner Rochester testified that "[o]verall medical care at the Jail was sporadic and poor, particularly with the administration and monitoring of medication." Rec. Doc. 77-10 at ¶ 6. He also stated that "it was an unwritten policy to withhold medicine from certain inmates as a form of punishment." Id. at ¶ 7. Further, "[a]part from some training re: first response, we received no medical training of any kind, including any training regarding chronic illnesses such as diabetes and hypertension." Id. at ¶ 5. According to Plaintiff, these "inadequate training policies caused the constitutional violation, viz., the failure to administer insulin and the failure to monitor Plaintiff's blood sugar." Rec. Doc. 77 at 17.
As to the administrative remedies available to inmates, Mr. Rochester testified as follows:
Rec. Doc. 77-10 at ¶¶ 8-11. Further, Plaintiff testified in his deposition that his ARP's were thrown away (see Rec. Doc. 77-3 at 111) and that "[t]he warden at one time told me . . . I've been getting your APRs [sic]. I threw them away" (id. at 112).
Defendant argues that Rochester's affidavit should be disregarded because it is not based on personal knowledge; specifically, Mr. Rochester was employed by the Sheriff for an eight-month period in 2013, but Plaintiff was only incarcerated in 2014. Rec. Doc. 84 at 10.
Pursuant to Federal Rule of Civil Procedure 56(c)(4), "[a]n affidavit . . . used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Mr. Rochester admits that he was not employed by the jail at the time of Plaintiff's incarceration. He therefore lacks personal knowledge of the acts or omissions alleged by Plaintiff. Further, even if the affidavit were admissible, Mr. Rochester's statement that he believed Jim Miller was aware of certain alleged practices could not be considered. See McWhirter v. AAA Life Ins. Co., 622 F. App'x 364, 366 (5th Cir. 2015) ("Lila emphasizes Karen's attestation in her affidavit that, while she did not witness McWhirter's fall, she `always believed' it occurred while he was exiting the vehicle. This statement is not valid summary-judgment evidence, as it is based on belief rather than personal knowledge") (citing FED. R. CIV. P. 56(c)(4); Bolen v. Dengel, 340 F.3d 300, 313 (5th Cir.), as amended (Oct. 1, 2003)).
Nonetheless, without conclusively determining the value of Mr. Rochester's affidavit, Plaintiff's claims must still fail. In Garcia v. Federal Bureau of Prisons, the prisoner argued that "the prison medical staff was aware of his need for medications, which were prescribed but not provided promptly." 459 F. App'x 458, 458 (5th Cir. 2012). On appeal from the dismissal of his Bivens action and 42 U.S.C. § 1983 complaint, the Fifth Circuit noted that "[t]he fact of delay in itself is not sufficient to establish deliberate indifference" and "[t]he unexplained delays in dispensing medications constitute negligence at most." Id. at 459 (citing Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993); Gobert, 463 F.3d at 351-52 (stating that "a trier of fact might find negligence in the one week lapse in antibiotic treatment" but concluding that mere negligence could not support a finding of deliberate indifference); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (noting that "[u]nsuccessful medical treatment does not give rise to a § 1983 cause of action. Nor does `[m]ere negligence, neglect or medical malpractice.'") (citations omitted)).
Thus, at most, delays or lapses in the administration of medication to Plaintiff amount to negligence, not deliberate indifference. Accordingly, Plaintiff's claims for inadequate medical care (or failure to adequately train jail personnel) must fail.
For the reasons outlined above,
