United States District Court, W.D. Louisiana, Shreveport Division
MAGISTRATE JUDGE HORNSBY
MAURICE HICKS, JR., CHIEF JUDGE UNITED STATES DISTRICT COURT
the Court is Defendants Jerry Goodwin, Louisiana Department
of Public Safety and Corrections, James M. LeBlanc, Chris
Evans, Lonnie Nail, Scott Cottrell, and Mark Hunter's
(collectively the “State Defendants”) Motion for
Summary Judgment (Record Document 34) pursuant to Rule 56 of
the Federal Rules of Civil Procedure seeking to dismiss all
of Plaintiff Cory Leone's (“Leone”) claims.
Leone opposed the motion. See Record Document 40.
For the reasons which follow, the State Defendants'
Motion is hereby GRANTED.
AND PROCEDURAL BACKGROUND
August 16 and 17, 2015, offender Ronnie Hongo
(“Hongo”) and Leone were housed on David Wade
Correctional Center's (“DWCC”) North Compound
in the H3B dormitory. On August 16, Leone and Hongo got into
a verbal dispute over a fan located in their dormitory, which
was unwitnessed by corrections officials, where Leone called
Hongo a homosexual. See Record Document 34-11 at
16-17. Hongo told another offender, Onge Washington
(“Washington”), that he and Leone had had words.
See Record Document 34-13. Washington stated that he
“successfully diffused” the dispute, and that
Hongo told him that everything was fine and the issue was
settled. See id. No one informed corrections
officials of the dispute that day.
August 17 just after 9:00 a.m., Hongo assaulted Leone, who
was asleep at the time, with two padlocks he secured to a
belt. See Record Document 34-8 at 51. Pursuant to a
review of the security video during the investigation, at
8:53 a.m., Hongo entered the dormitory and went to his bed
where he removed the padlocks from his lockers and put his
weapon together, hiding it from view. See id. at 43.
At 8:58 a.m., a corrections officer got up from his desk to
make a round in the dormitory, and stopped to speak to
offender Morian Spivey (“Spivey”). See
id. at 44. While the corrections officer was speaking to
Spivey, Hongo approached Leone and began to strike him
without warning just after 9:00 a.m. See id. at
corrections officer immediately ran over to restrain Hongo,
with additional corrections officers responding to assist.
See id. at 52-53. By 9:03 a.m., medical personnel
had arrived at the scene and began life-saving response on
Leone. See id. at 54. Leone was transported to the
North Infirmary, where medical personnel continued to assess
him, stabilize his condition, and called for transportation
to University Health-Shreveport. See Record Document
34-10 at 44-46. A 911 call was made from DWCC to the
Claiborne Parish Sheriff's Office at 9:08 a.m. requesting
a trauma unit to the North Infirmary. See id. at 65.
Prior to the assault, corrections officers were unaware of
the verbal dispute of August 16, or that Hongo intended to
harm Leone the following day. See Record Document
34-11 at 5-6. On August 27, Lt. Col. Scott Cottrell
(“Cotrell”) made an investigative report to
Warden Jerry Goodwin (“Warden Goodwin”).
See Record Document 34-10 at 50-56.
treatment at University Hospital-Shreveport, Leone was
returned to DWCC on August 28, and interviewed by Cottrell.
See id. at 1. Cottrell then issued an addendum to
his investigative report. As a result of the investigation,
Hongo received discipline for both the August 16 and 17
incidents, and was criminally charged for the August 17
attack on Leone. See Record Document 34-8 at 13-15.
Leone and Washington also received discipline for their
participation in the verbal argument with Hongo on August 16.
December 7, 2015, Leone submitted a request for protective
custody claiming that DWCC had failed to protect him.
See Record Document 34-10 at 2. Protective custody,
a non-punitive housing option, is a form of separation from
the general population for offenders requesting or requiring
protection from other offenders for reasons of health and
safety. See id. at 60-61. During the interview for
protective custody, Leone told Warden Goodwin and Col. Chris
Evans (“Evans”) that he was concerned for his
safety being housed in the same unit where he was previously
attacked, and that he was following the advice of his
attorney in seeking protective custody. See id. at
December 9, 2015, Leone was transferred from medium security
to maximum security for protective custody in N4 on the South
Compound. See id. There are three levels of
protective custody. Protective Custody - Level 2 is the
protection assignment which is usually made at an
offender's request who has raised protection concerns,
and it may be either short term or long term. Upon his
arrival for Level 2-Protective Custody in N4, Col. Lonnie
Nail (“Nail”) explained to Leone that maximum
security for protective custody carried limitations as to his
visitation, phone and other privileges, and Leone appeared to
understand. See Record Document 34-7 at 8-9. An
offender placed in protective custody receives a review by a
Classification Review Board every seven days for the first 60
days, and then every 30 days thereafter. See id. at
6. Nail sits on Classification Review Boards for the South
Compound, and stated that from December 9, 2015, until the
middle of April, 2017, Leone never made a request for a
classification change, and Leone's classification
remained the same. See id. at 4. In April of this
year, Leone's classification was changed to a different
level of protective custody, and he is now housed in N1A.
was seen by the medical staff prior to being placed in
protective custody. See Record Document 34-10 at 43.
During this examination, Leone denied any complaints or
problems from his prior injuries. See id. Following
the examination, Leone's routine medications were given
to him by Security Staff, but there were times where he
refused or did not request them. See id. at 3-10.
While in protective custody, Leone continued to receive
medical care. On January 5, 2016, the Mental Health
Department conducted a follow up with Leone, where he voiced
no mental health concerns, and no distress was noted. See
id. at 49. On January 27, Leone was transported to
University Health-Shreveport for a follow up medical
examination with the Ophthalmology Clinic. See id.
at 15. Dr. Pamela Hearn (“Dr. Hearn”), reviewed
the medication recommendations by the Ophthalmology Clinic,
and signed a physician's order for the medications
recommended. See id.
February 15, 2016, another mental health follow-up was made,
and Leone voiced no mental health concerns, and no distress
was noted. See id. at 48. On February 17, Dr. Hearn
reviewed Leone's medical chart, and issued a
physician's order to continue his seizure medication,
Dilantin. See id. at 14.
9, 2016, Leone was again seen by the Mental Health Department
without having any mental health concerns. See id.
at 47. On May 18, Leone was transferred to University
Health-Shreveport for a follow-up Ophthalmology Clinic visit,
and again Dr.
reviewed the medication recommendations by the Ophthalmology
Clinic and entered a physician's order for the
medications recommended. See id. at 26-33. In late
June and early July of 2016, routine blood work showed that
Leone's Dilantin levels had risen. See id. at
21. Dr. Jeffrey Fuller responded by holding doses of
Phenytoin Dilantin, monitoring periodic blood work, and
adjusting doses. See id. at 11-13.
James LeBlanc (“Secretary LeBlanc”) and Warden
Goodwin have extensive experience in supervisory and
administrative positions in the area of corrections.
See Record Document 34-4 and 34-5. The Louisiana
Department of Public Safety and Corrections'
(“LDPSC”) practice of issuing padlocks to
offenders to secure their personal belongings in lockers has
been in place during the entire duration of both of their
tenures with the LDPSC, and has not been changed. See
id. While there is no specific written policy governing
the issuance of padlocks, they are specifically listed as
allowed property. See Record Document 34-5. Both
Secretary LeBlanc and Warden Goodwin are aware that the
practice of allowing offenders padlocks to secure their
personal property is common in penal institutions throughout
the United States, for both state and federal institutions,
and that padlocks are sold in prison commissaries, including
but not limited to, the Federal Bureau of Prisons at FCC
Oakdale (Louisiana), FCC Pollock(Louisiana), FCI Waseca
(Minnesota), FDC Houston (Texas), and FCI Tallahassee
(Florida), as well as being on the items for purchase lists
published by the state departments of corrections in
Mississippi and Texas. See Record Document 34-4 and
Secretary LeBlanc and Warden Goodwin know that the reason
padlocks are issued to offenders as a means of securing their
personal belongings is that theft of an offender's
property is a common occurrence, and incidents of theft often
lead to violence between inmates. See id. In their
experience, issuing padlocks is a reasonable means of
controlling theft and reducing violent confrontations among
offenders. See id. While both Secretary LeBlanc and
Warden Goodwin are aware that offenders on occasion may use
padlocks as weapons to assault other offenders, in their
experience, padlocks are used as weapons on a small number
offender-on-offender assaults. See id. Warden
Goodwin has reviewed DWCC records of offender-on-offender
assaults where a padlock was used as a weapon back to 2009,
and found that there were 11 incidents prior to the subject
assault. See Record Document 34-5.
filed his Complaint August15, 2016, and divided it into
multiple claims. See Record Document 1. First, Leone
claims an Eighth Amendment violation against State Defendants
for failing to protect him from the attack by Hongo using
padlocks issued by DWCC. Second, Leone contends that his
write up for a rule violation related to the August 16, 2015,
verbal altercation with Hongo, and his continued housing
assignment in extended lockdown is retaliation for his
failure to dismiss his Administrative Remedy Procedure (ARP)
Complaint alleging that DWCC failed to protect him from
Hongo's attack. Third, Leone makes a claim for inadequate
medical care immediately after the assault, and while he has
been in extended lock down. Fourth, that his continued stay
in extended lock down constitutes an Eighth Amendment
violation related to his conditions of confinement. Finally,
Leone makes state law claims against the defendants for both
intentional torts and negligence. See id.
Defendants filed the instant Motion for Summary Judgment on
September 18, 2017, asserting there are no issues of material
fact and that they are entitled to a judgment as a matter of
law. See Record Document 34. Leone responded by
filing a Memorandum in Opposition on October 4, 2017,
claiming State Defendants have not shown the absence of any
genuine issues of material fact. See Record Document
of the Federal Rules of Civil Procedure governs summary
judgment. This rule provides that the court "shall grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(a). Also,
"a party asserting that a fact cannot be or is genuinely
disputed must support the motion by citing to particular
parts of materials in the record." Fed.R.Civ.P.
56(c)(1)(A). "If a party fails to properly support an
assertion of fact or fails to properly address another
party's assertion of fact as required by Rule 56(c), the
court may . . . grant summary judgment." Fed.R.Civ.P.
summary judgment motion, "a party seeking summary
judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and
identifying those portions of the pleadings . . . [and]
affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact." Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986) (internal
quotations and citations omitted). If the movant meets this
initial burden, then the non-movant has the burden of going
beyond the pleadings and designating specific facts that
prove that a genuine dispute of material fact exists. See
id. at 325; see Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994).
non-movant, however, cannot meet the burden of proving that a
genuine dispute of material fact exists by providing only
"some metaphysical doubt as to the material facts, by
conclusory allegations, by unsubstantiated assertions, or by
only a scintilla of evidence." Little, 37 F.3d
at 1075. Additionally, in deciding a summary judgment motion,
courts "resolve factual controversies in favor of the
nonmoving party, but only when there is an actual
controversy, that is when both parties have submitted
evidence of contradictory facts." Id. Courts
"do not, however, in the absence of any proof, assume
that the nonmoving party could or would prove the necessary
Court may “consider summary judgment on its own after
identifying for the parties material facts that may not be
genuinely in dispute.” Fed.R.Civ.P. 56(f)(3). A court
may grant summary judgment under Fed.R.Civ.P. 56(f)(3) so
long as it provides the parties with “ample notice
[and] time to respond” and “consider[s]
everything” that the parties claim to be probative of
the matters that have been identified. Santana v. Cook
Co. Bd. of Review, 679 F.3d 614, 619 (7th Cir. 2012);
see also Wang v. Prudential Ins. Co. of Am., 439
Fed.Appx. 359, 363 n.2 (5th Cir. 2011).
to Local Rule 56.1, the moving party shall file a short and
concise statement of the material facts as to which it
contends there is no genuine issue to be tried. Local Rule
56.2 requires that a party opposing the motion for summary
judgment set forth a “short and concise statement of
the material facts as to which there exists a genuine issue
to be tried.” All material facts set forth in the
statement required to be served by the moving party
“will be deemed admitted, for purposes of the motion,
unless controverted as required by this
rule.” Local Rule 56.2.
Section 1983 Suits: Individual Capacity vs. Official Capacity
1983 authorizes the assertion of a claim for relief against a
person who, acting under the color of state law, allegedly
violated the claimant's rights under federal law.
See 42 U.S.C. § 1983. In § 1983 suits,
government officials may be sued in either their individual
or official capacities. A claim against a state or municipal
official in his official capacity "generally
represent[s] only another way of pleading an action against
an entity of which an officer is an agent." Kentucky
v. Graham, 473 U.S. 159, 166 (1985). Individual or
personal capacity suits “seek to impose personal
liability upon a government official for actions he takes
under color of state law.” Id.
Qualified Immunity in Section 1983 Suits
qualified immunity doctrine often protects public officials
from liability in § 1983 actions brought against a
person acting under the color of state law in his individual
capacity. “The basic thrust of the qualified-immunity
doctrine is to free officials from the concerns of
litigation.” Ashcroft v. Iqbal, 556 U.S. 662,
685 (2009) (internal quotations and citations omitted). In
fact, a qualified immunity defense is truly “an
immunity from suit rather than a mere defense to
liability.” Pearson v. Callahan, 555 U.S. 223,
the defendant raises a qualified immunity defense, the
plaintiff carries the burden of demonstrating the
inapplicability of qualified immunity. See Floyd v. City
of Kenner, 351 Fed.Appx. 890, 893 (5th Cir. 2009).
First, the court must determine whether the plaintiff
demonstrated a genuine dispute of material fact as to a
violation of a constitutional right. See Pearson,
555 U.S. at 232. Second, the court must determine whether the
constitutional right at issue was “clearly
established” at the time of the defendant's alleged
misconduct. Id. A defendant who can validly raise a
qualified immunity defense will enjoy its protection so long
as the allegedly violated constitutional right was not
clearly established at the time of the violation. See
id. In other words, the defendant can only be held
liable if he violates a right that is clearly established at
the time of the violation.