United States District Court, M.D. Louisiana
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 ยง 1983 Claim for ...