United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the United States District
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.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
JUDGE'S REPORT AND RECOMMENDATION
matter comes before the Court on Motion to Dismiss filed on
behalf of defendants Col. Antoine Whitaker and Maj. William
Smith (R. Doc. 42). The motion is not opposed and plaintiff
consents to their dismissal. See R. Doc. 44.
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.
Whitaker and Smith assert, inter alia, pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure, that
the plaintiff has failed to state a claim upon which relief
may be granted. In Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S.
662 (2009), the Supreme Court clarified the standard of
pleading that a plaintiff must meet in order to survive a
motion to dismiss pursuant to Rule 12(b)(6). Specifically,
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, supra, at 555.
“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.' ” Ashcroft v. Iqbal,
supra, 556 U.S. at 678, quoting Bell Atlantic
Corp. v. Twombly, supra. “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. It follows that, “where the well-pleaded
facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged-but it
has not ‘show[n]'-‘that the pleader is
entitled to relief.' ” Id. at 679.
“Where a Complaint pleads facts that are ‘merely
consistent with' a defendant's liability, it
‘stops short of the line between possibility and
plausibility of entitlement to relief.' ”
Id. at 678 (internal quotation marks omitted).
motion to dismiss for failure to state a claim under Rule
12(b)(6), the Court “must accept as true all of the
factual allegations contained in the Complaint.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007). Further,
“[a] document filed pro se is ‘to be
liberally construed' ... and ‘a pro se
Complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers.' ” Id. (citation omitted).
Notwithstanding, the court need not accept “a legal
conclusion couched as a factual allegation, ”
Papasan v. Allain, 478 U.S. 265, 286 (1986), or
“naked assertions [of unlawful conduct] devoid of
further factual enhancement.” Ashcroft v.
Iqbal, supra, 556 U.S. at 678 (internal
quotation marks omitted).
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.
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
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
plaintiff asserts that defendants Whitaker and Smith failed
to protect him from the use of excessive force by defendant
Zeringue. A defendant security officer may be found
responsible for a failure to intervene and take reasonable
measures to protect an inmate from another officer's
excessive use of force. See Whitley v. Hanna, 726
F.3d 631, 646 (5th Cir. 2013) citing Hale v.
Townley, 45 F.3d 914, 916 (5th Cir. 1995). The test in
such instance is whether the observing officer had actual
knowledge of a substantial risk of harm to the inmate yet
disregarded that risk by failing to take reasonable measures
to prevent the resulting harm. Id. This claim is
evaluated under the Eighth Amendment's “deliberate
indifference” standard as set forth in Farmer v.
Brennan, 511 U.S. 825 (1994). See e.g. Luken v.
Lynaugh, 98 F.3d 1339 (5th Cir. 1996) (applying the
“deliberate indifference” standard in connection
with a failure-to-intervene claim). Under this standard, a
prison official is deliberately indifferent if the official
is both “aware of facts from which the inference could
be drawn that a substantial risk of harm exists, ” and
the official in fact draws that inference. Farmer,
511 U.S. at 837.
moving defendants assert that the plaintiff's Complaint
as amended contains no allegations of deliberate indifference
on their part. The plaintiff agrees and requests that his
claims against defendants Whitaker and Smith ...