Mitchell v. Thomas

          NOTICE

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U.S. District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

         Before the Court is a Motion for Leave to File Amended Complaint for Damages (the “Motion for Leave”), filed by plaintiff David Mitchell.^[1] The Motion for Leave is opposed.^[2]

         Also before the Court is a Motion to Dismiss and a Motion to Stay Discovery pending resolution of the Motion to Dismiss, filed by defendant Sergeant Clarence Roberts.^[3] Both of these motions are also opposed.^[4]

         The undersigned RECOMMENDS that the Motion to Dismiss be GRANTED with regard to Plaintiff's federal claims asserted and that the court decline to exercise supplemental jurisdiction over the state law claims. The undersigned also RECOMMENDS that the Motion for Leave be DENIED as futile.^[5] The undersigned further RECOMMENDS that the dismissal of Plaintiff's claims against Sgt. Roberts be WITHOUT PREJUDICE and that, if this Report and Recommendation is adopted, Plaintiff be permitted thirty (30) days in which to file a Second Amended Complaint. The undersigned recommends that the Motion to Stay Discovery be DENIED as moot.

         Factual and Procedural Background

         On February 16, 2017, Plaintiff, an inmate at Louisiana State Penitentiary (Angola), filed a Complaint for Damages^[6] in this Court against Sergeant Willie Thomas and Sergeant Clarence Roberts (collectively, “Defendants”) in their individual capacities, seeking monetary damages, attorney's fees and costs under 42 U.S.C. §§ 1983 and 1988 based on the Defendants' alleged use of excessive force in violation of Plaintiff's Eighth Amendment rights.^[7] Alternatively, Plaintiff seeks relief under La. Civ. Code art. 2315, alleging that the Defendants were negligent in failing to protect Plaintiff from an attack by another inmate.^[8]

         Plaintiff alleges that on June 22, 2016, Defendants conspired to harm Plaintiff in retaliation for Plaintiff “having filed a prior sexual harassment PREA” against Sgt. Thomas.^[9] Plaintiff alleges that on June 22, 2016, Sgt. Roberts “removed Inmate Tillman from his cell as though inmate Tillman was going to and from the shower; however, in violation of policy Sgt. C. Roberts had not had Inmate Tillman come to the bars and be restrained prior to existing [sic] the cell.”^[10]Alternatively, Plaintiff alleges that Sgt. Roberts did not place Tillman in restraints after Tillman had showered. Plaintiff asserts that Sgt. Roberts then brought Tillman to Plaintiff's cell, opened the cell door and allowed Tillman into Plaintiff's cell, where Tillman “violently attacked DAVID MITCHELL causing serious personal injury.”^[11] Plaintiff claims that “it was obvious that Sgt. Willie Thomas had conspired with Sgt. C. Roberts” because Sgt. Thomas stood by and watched as Sgt. Roberts removed Tillman from the shower, unrestrained, and as Sgt. Roberts allowed Tillman into Plaintiff's cell. Plaintiff further asserts, “It is unknown why the key guard opened the Cell 2 door and whether the key guard was instructed to do so by either Sgt. Willie Thomas or by Sgt. C. Roberts.”^[12] Plaintiff claims that he suffered serious injuries to his head, back, neck and spine as a result of the attack by Tillman.

         In the Complaint, Plaintiff alleges that, “The motive for the attack was retaliation. Retaliation by a guard against an inmate for filing a PREA complaint is in violation of policy and law, both state and federal.”^[13] Plaintiff alleges that the Defendants' actions violated La. R.S. 15:829, which prohibits the use of corporal punishment against inmates housed by the Department of Public Safety and Corrections, and violated “Department Regulation No. C-02-006 regarding use of force.”^[14] Plaintiff further asserts that, “Defendant acted in a manner that was in wanton or reckless disregard or with malice or willfulness to cause injury and violate constitutional rights.”^[15]As a result of his alleged injuries, Plaintiff seeks an award for the following damages: (1) physical pain and suffering; (2) property damage and loss; (3) physical injuries; (4) emotional and mental distress, pain and suffering, humiliation, embarrassment; (5) past, present and future medical expenses; (6) inconvenience; (7) lost wages; (8) all litigation expenses; and (9) attorney's fees and costs.^[16]

         On May 2, 2017, Sgt. Roberts filed a Motion to Dismiss, asserting that the Complaint fails to state a claim under state or federal law against Sgt. Roberts and that Sgt. Roberts is entitled to qualified immunity in his individual capacity.^[17] The Motion to Dismiss is opposed.^[18]

         Plaintiff filed the instant Motion for Leave to File Amended Complaint for Damages on June 9, 2017, seeking to cure the deficiencies raised by Sgt. Roberts' Motion to Dismiss.^[19] Plaintiff asserts that the amendment should be allowed under Fed.R.Civ.P. 15 and the Fifth Circuit's “history of pursuing ‘a course of strong liberality . . . in allowing amendments.”^[20] That same date, in a one-page opposition, Plaintiff opposed the Motion to Dismiss on the basis that the Motion for Leave to File Amended Complaint for Damages cures any defects that may have existed in the original Complaint, such that the Motion to Dismiss is moot should the court allow the amendment to the Complaint.^[21]

         On June 23, 2017, Sgt. Roberts filed an opposition to the Motion for Leave, asserting that the proposed amendments continue to fail to state a claim upon which relief can be granted and do not overcome the qualified immunity.^[22] As such, Sgt. Roberts asserts the Motion for Leave should be denied as futile and/or frivolous.

         Applicable Law and Analysis

         In conducting a Rule 12(b)(6) analysis, the Court accepts “all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). In order to survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 570, 557, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id., 550 U.S. at 555, 127 S.Ct. at 1965 (internal citation omitted). While factual assertions are presumed to be true, “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” are not enough to withstand a 12(b)(6) motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).

         A. Sgt. Roberts' Motion to Dismiss Should Be Granted

         Although the original Complaint only specifically lists two claims for relief, an excessive force claim under 42 U.S.C. § 1983 and a negligent failure to protect claim under Louisiana law, Sgt. Roberts asserts in the Motion to Dismiss that the Complaint fails to state a claim against him in his individual capacity under § 1983 for retaliation, failure to protect, conspiracy, excessive force or violations of state law and/or prison policies, and also fails to state a negligence claim against him under Louisiana law.^[23] Sgt. Roberts also asserts that he is entitled to qualified immunity in his individual capacity. In response, Plaintiff does not argue that the original Complaint was sufficient, instead Plaintiff asserts that the proposed Amended Complaint for Damages cures all the deficiencies that were raised by Sgt. Roberts' Motion to Dismiss.^[24]

         1. The Allegations Against Sgt. Roberts in the Original Complaint

         The original Complaint makes the following allegations specific to Sgt. Roberts:

Sgt. C. Roberts removed Inmate Tillman from his cell as though Inmate Tillman was going to and from the shower; however, in violation of policy Sgt. C. Roberts had not had Inmate Tillman come to the bars and be restrained prior to exiting the cell.

In the alternative, Sgt. C. Roberts did not place Inmate Tillman in restraints after he had showered. He should have been ordered to come to the bars and be restrained prior to existing [sic] the shower and this was not done. Sgt. C. Roberts and Inmate Tillman then proceeded to Cell #2 where DAVID MITCHELL was confined. Sgt. C. Roberts opened the cell door and allowed Inmate Tillman into Cell #2 where Inmate Tillman violently attacked DAVID MITCHELL causing serious personal injury.

Due to the circumstances it was obvious that Sgt. Willie Thomas had conspired with Sgt. C. Roberts to cause harm to DAVID MITCHELL as retaliation for the prior PREA complaint, ^[25] because at the time of the attack, Sgt. Willie Thomas was at the front of the Tier outside of the gate looking down the Tier.

Sgt. Willie Thomas stood by and watched as Sgt. C. Roberts removed Inmate Tillman from the shower unrestrained and as Sgt. C. Robert opened the cell 2 door to allow Inmate Tillman into DAVID MITCHELL's cell. It is unknown why the key guard opened the Cell 2 door and whether the key guard was instructed to do so by either Sgt. Willie Thomas or by Sgt. C. Roberts.^[26]

         2. Plaintiff's § 1983 Claim for Retaliation

         The original Complaint states that Sgt. Thomas retaliated against Plaintiff because Plaintiff had filed a prior sexual harassment PREA against Sgt. Thomas. The only allegation with regard to Sgt. Roberts' alleged retaliation is that “due to the circumstances” it was obvious that Sgt. Roberts conspired with Sgt. Thomas to harm Plaintiff in retaliation for Plaintiff's PREA complaint against Sgt. Thomas.^[27] The “obvious circumstance” Plaintiff references is the fact that during the time of the alleged attack, Sgt. Thomas was at the front of the tier and watched Sgt. Roberts remove inmate Tillman while inmate Tillman was unrestrained, and watched Sgt. Roberts allow inmate Tillman into Plaintiff's cell.

         The law is well-settled that a prison official may not retaliate against or harass an inmate for complaining through proper channels about a guard's misconduct. Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2006) (citation omitted); See, Hunter v. Sterling, Civ. A. No. 08-0835-JVP-DLD, 2010 WL 1385188, at *6 (M.D. La. Mar. 1, 2010) (citing authority). However, “Claims of retaliation must . . . be regarded with skepticism, lest federal courts embroil themselves in every disciplinary act that occurs in state penal institutions.” Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (quoting Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994)). To prevail on a claim of retaliation, a prisoner must be able to establish that (1) he was exercising or attempting to exercise a specific constitutional right, (2) the defendant intentionally retaliated against the prisoner for the exercise of that right, (3) an adverse retaliatory action, greater than de minimis, was undertaken against the prisoner by the defendant, and (4) there is causation, i.e., that but for the retaliatory motive, the adverse action would not have occurred. Morris v. Powell, supra, 449 F.3d at 684; Hart v. Hairston, 343 F.3d 762, 764 (5th Cir. 2003). The inmate must allege more than a mere personal belief that he is the victim of retaliation. Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999); Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997)). To demonstrate the requisite retaliatory intent on the part of a defendant, the inmate must produce direct evidence of motivation or allege a chronology of events from which retaliation may plausibly be inferred. Woods v. Smith, supra, 60 F.3d at 1166.

         Although the Fifth Circuit has held that complaining about the conduct of corrections officers through proper channels is a constitutionally protected activity, ^[28] it is not clear from the original Complaint that Plaintiff filed a formal grievance against Sgt. Thomas for sexual harassment. This Court has previously explained that, “an inmate's right to complain to supervising officials regarding alleged misconduct is limited to complaints which are made through ‘proper channels.'” Triplett v. LeBlanc, Civ. A. No. 13-243-JWD-RLB, 2015 WL 893057, at *7 (M.D. La. Mar. 2, 2015) (finding that an inmate speaking out at a meeting convened by the assistant warden “does not appear to be an assertion of a complaint through ‘proper channels' as to support a claim of retaliation.”); See, Hanna v. Maxwell, 415 Fed. App'x 533, 536 (5th Cir. 2011) (rejecting an inmate's claim of retaliation where the alleged retaliation was not in response to complaints made through proper channels); Morris v. Powell, supra, 449 F.3d at 684; Sanchez v. Allen, Civ. A. No. 5:13cv25, 2013 WL 5829156, at *1 (E.D. Tex. Oct. 29, 2013) (same); Rankin v. Pearson, Civ. A. No. 5:11cv138-DCB-RHW, 2013 WL 1305517, *4 (S.D.Miss. Mar. 26, 2013) (same).

         Even assuming Plaintiff had asserted a complaint against Sgt. Thomas using the “proper channels, ” the original Complaint does not allege any facts to show that Sgt. Roberts intentionally retaliated against Plaintiff because Plaintiff exercised his constitutional right to complain against Sgt. Thomas. The original Complaint does not allege that Sgt. Roberts was aware of Plaintiff's prior PREA complaint against Sgt. Thomas, nor does the original Complaint allege any relationship at all between Sgt. Roberts and Sgt. Thomas by which the court could infer that but for the retaliatory motive the events Plaintiff alleges would not have occurred. Plaintiff does not allege the date upon which the prior PREA complaint against Sgt. Thomas was made, ^[29] nor does Plaintiff allege that any statements were voiced by Sgt. Roberts that explicitly suggested a retaliatory motive or intent. Thus, the original Complaint certainly fails to set forth “direct evidence of motivation” on the part of Sgt. Roberts and also fails to set forth “a chronology of events from which retaliation may plausibly be inferred, ” as required to show that Sgt. Roberts intentionally retaliated against Plaintiff. Tasby v. Cain, Civ. A. No. 16-0277-JJB-EWD, 2017 WL 4295441, at *7 (M.D. La. Sept. 12, 2017), report and recommendation adopted, 2017 WL 4322413 (M.D. La. Sept. 28, 2017). Even on a Rule 12(b)(6) motion, “where the well-pleaded facts do not permit the court to infer more than a mere possibility of misconduct, the complaint has alleged- but it has not ‘show[n]' - ‘that the pleader is entitled to relief.'” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). Accordingly, Plaintiff's conclusory allegations in the original Complaint are not sufficient to state a claim of retaliation against Sgt. Roberts under 42 U.S.C. § 1983. See, Tasby, 2017 WL 4295441, at *7 (“Accordingly, his non-specific conclusory allegations of retaliation are not sufficient to support a claim relative thereto.”). Sgt. Roberts' Motion to Dismiss should be granted with regard to Plaintiff's § 1983 retaliation claim.

         3. Plaintiff's § 1983 Conspiracy Claim

         Similarly, the allegations contained in the original Complaint are insufficient to state a claim for conspiracy against Sgt. Roberts under § 1983. The Fifth Circuit has held that to establish a conspiracy claim under 42 U.S.C. § 1983, an inmate must show an actual violation of § 1983 and an agreement by the defendants to commit an illegal act. Leggett v. Williams, 277 Fed. App'x 498, 501 (5th Cir. 2008) (citing Hale v. Townley, 45 F.3d 914, 920 (5th Cir. 1995)). To the extent that Plaintiff alleges the Defendants engaged in a conspiracy to allow Tillman to attack Plaintiff, Plaintiff has failed to state a cause of action against Sgt. Roberts under 42 U.S.C. § 1983. The original Complaint does not allege facts tending to show that the Defendants entered into an agreement to cause Plaintiff harm. Instead, Plaintiff alleges that while transporting inmates to and from the showers, Sgt. Roberts permitted the improperly unrestrained Tillman to enter Plaintiffs' cell where Tillman attacked Plaintiff. Plaintiff then draw the conclusion that, “Due to the circumstances, it was obvious that Sgt. Willie Thomas had conspired with Sgt. C. Roberts to cause harm to DAVID MITCHELL as retaliation for the prior PREA complaint, because at the time of the attack, Sgt. Willie Thomas was at the front of the Tier outside of the gate looking down the Tier.”^[30] “‘Mere conclusory allegations of a conspiracy cannot, absent reference to material facts, ' state a substantial claim of federal conspiracy under 42 U.S.C.A. § 1983.” Hale v. Harney, 786 F.2d 688, 690 (5th Cir. 1986) (quoting Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982)); See, Hall v. Armond, Civ. A. No. 12-677-SDD-SCR, 2014 WL 2465932, at *4 (M.D. La. May 30, 2014) (“The conspiracy allegations made by the plaintiff are conclusory, and more than a blanket of accusation is necessary to support a § 1983 claim.”) (citations omitted). The leap is simply too great to make in this instance that the facts alleged by Plaintiff in the original Complaint are sufficient to state a claim for conspiracy under 42 U.S.C. § 1983. Sgt. Roberts' Motion to Dismiss should be granted with regard to Plaintiff's § 1983 conspiracy claim.

         4. Plaintiff's § 1983 Claim for ...