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Bacon v. Zeringue

United States District Court, M.D. Louisiana

January 19, 2018

DWIGHT BACON (#556894)
v.
MAJOR BENJAMIN ZERINGUE, ET AL.

          NOTICE

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.

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

         In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations 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 of the Magistrate Judge which have been 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

         This matter comes before the Court on the parties' Cross Motions for Summary Judgment (R. Docs. 50, 51, and 53).

         The pro se plaintiff, an inmate incarcerated at Louisiana State Penitentiary (“LSP”), Angola, Louisiana, filed this proceeding pursuant to 42 U.S.C. § 1983 against Major Benjamin Zeringue, Lt. Luther Montandon, Col. Antoine Whitaker and Major William Smith complaining that his constitutional rights have been violated through excessive force, and failure to protect him from the use of excessive force. The plaintiff seeks compensatory and punitive damages, as well as injunctive relief.

         Defendant Major Benjamin Zeringue moves for summary judgment relying upon the pleadings, a Statement of Undisputed Facts, various discovery requests and responses, his own Affidavit and the Affidavit of Major Carl Smith. The plaintiff opposes the defendant's Motion relying upon the pleadings, and a copy of a disciplinary report dated October 23, 2015, a copy of an accident/injury report dated October 23, 2015, various photographs, and excerpts from his medical records.

         The plaintiff moves for summary judgment relying upon the pleadings, his own Declaration made under penalty of perjury, disciplinary reports dated October 23, 2015, November 8, 2010, December 1, 2010, and December 17, 2010, various discovery requests and responses, excerpts of ARP “LSP-2015-3419, ” hobbycraft receipts dated April 26-27, 2014, a suspension record, an accident/injury report dated October 23, 2015, excerpts of the plaintiff's medical records, and various photographs. Defendant Zeringue opposes the plaintiff's Motion relying upon the pleadings, his own Affidavit, the Affidavit of Carl Smith, various discovery responses and requests, and a certified copy of APR “LSP-2015-3331.”

         Pursuant to well-established legal principles, summary judgment is appropriate where there is no genuine disputed issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Rule 56, Federal Rules of Civil Procedure. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). A party moving for summary judgment must inform the Court of the basis for the motion and identify those portions of the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, that show that there is no such genuine issue of material fact. Celotex Corp. v. Catrett, supra, 477 U.S. at 323. If the moving party carries its burden of proof under Rule 56, the opposing party must direct the Court's attention to specific evidence in the record which demonstrates that the non-moving party can satisfy a reasonable jury that it is entitled to a verdict in its favor. Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 248. This burden is not satisfied by some metaphysical doubt as to alleged material facts, by unsworn and unsubstantiated assertions, by conclusory allegations, or by a mere scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). Rather, Rule 56 mandates that summary judgment be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, supra, 477 U.S. at 323. Summary judgment is appropriate in any case where the evidence is so weak or tenuous on essential facts that the evidence could not support a judgment in favor of the non-moving party. Little v. Liquid Air Corp., supra, 37 F.3d at 1075. In resolving a motion for summary judgment, the Court must review the facts and inferences in the light most favorable to the non-moving party, and the Court may not evaluate the credibility of witnesses, weigh the evidence, or resolve factual disputes. International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).

         In his Complaint as amended, the plaintiff alleges the following. On October 21, 2015, defendant Montandon conducted a shake down of the plaintiff. No. contraband was found, but defendant Montandon accused the plaintiff of being intoxicated. The plaintiff then left the area with the intent of informing the warden that he was being harassed. When the plaintiff arrived at the warden's office he found defendant Whitaker and defendant Zeringue near the office. Defendant Montandon was behind the plaintiff.

         The plaintiff began to explain the situation to defendant Whitaker while defendant Montandon spoke to defendant Zeringue. Before the plaintiff could finish speaking to defendant Whitaker, defendant Zeringue “slammed” the plaintiff on the ground and told the plaintiff that “he been waiting to send me to Camp J.” (R. Doc. 1 at 5). The plaintiff was then restrained with his arms behind his back secured by handcuffs. As he was being escorted by defendant Whitaker and defendant Zeringue, defendant Zeringue tripped the plaintiff, causing him to fall on a gate and then on the ground. Defendant Smith picked the plaintiff up, and defendant Zeringue then tried to cause the plaintiff's head to contact a wall but was stopped by defendant Whitaker.

         Defendant Zeringue and defendant Smith then began to escort the plaintiff to the treatment center due to a cut above the plaintiff's left eye. As they approached the back door, defendant Zeringue tripped the plaintiff again causing him to fall on the gate and then the ground. The plaintiff was treated and transferred to lockdown. The next day he declared himself a medical emergency because his head, shoulders, right elbow, knees, and wrists were bleeding. The plaintiff was not seen by a doctor for 105 days, and had not received medical treatment as of the time of the filing of his original Complaint.

         In response to the plaintiff's allegations, defendant Zeringue asserts that he is entitled to qualified immunity in connection with the plaintiff's claims. Specifically, defendant Zeringue contends that the plaintiff's allegations and evidentiary showing fail to show the existence of a genuine issue of ...


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