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Gipson v. Keith

United States District Court, W.D. Louisiana, Alexandria Division

March 2, 2018

KEITH GIPSON
v.
TIM KEITH, et al.

          TRIMBLE, JUDGE

          REPORT AND RECOMMENDATION

          Joseph H.L. Perez-Montes United States Magistrate Judge

         Before the Court are cross-motions for summary judgment (Docs. 83, 94). Gipson contends he was subjected to and injured by second hand smoke while incarcerated at Winn Correctional Center. Because Plaintiff Gipson has not carried his burdens of proof, Gipson's motion for summary judgment (Doc. 94) should be denied and Defendants' motion (Doc. 83) should be granted.

         I. Background

         Plaintiff Keith Gipson, an inmate confined by the Raymond Laborde Correctional Center (“RLCC”) in Cottonport, Louisiana, filed this civil rights action pursuant to 42 U.S.C. § 1983 (Docs. 1, 9). The remaining defendants are Nicole Walker (“Walker”) (assistant warden at Winn Correctional Center (“WCC”) in Winnfield, Louisiana) and Secretary James LeBlanc (“LeBlanc”) in his official capacity (Secretary of the Louisiana Department of Corrections).[1] Defendants answered the complaints (Docs. 16, 18).

         Gipson contends that, while he was incarcerated in WCC in 2013 and 2014, he was exposed to second-hand smoke, to which he is allergic. Gipson seeks general and punitive damages, a declaratory judgment, and injunctive relief (Doc. 9).

         Gipson contends he has been on prescription medication for smoke-related allergies since January 11, 2008 (Doc. 1). On December 14, 2013, Gipson was in a simple fight with another inmate, and Gipson was moved from a non-smoking tier (D-1) to A-1 tier, which was “filled with smoke from cigarettes, mojo, crystal meth, and marijuana, causing [him] respiratory related problems and severe headaches requiring medical treatments at [his} costs [sic]” (Doc. 9). Gipson further alleges that he won his disciplinary appeal for the simple fight on January 22, 2014 and the report was ordered expunged (Doc. 9). Gipson contends he has had respiratory problems and severe headaches from exposure to smoke (ETS) since 2010, and that Walker and LeBlanc knowingly committed fraud in denying there was no available non-smoking tier at WCC to cover up the fact that cigarettes and/or other drugs are smoked on every tier at WCC. Gipson contends the CCA employees do nothing to prevent smoking at WCC.

         Gipson filed a previous motion for summary judgment (Doc. 23), which was denied (Doc. 45). Defendants filed a motion to dismiss (Doc. 29), which was granted in part (Doc. 51).

         Defendants then filed this Motion for Summary Judgment (Doc 83), without supporting evidence, arguing the existing record does not establish a genuine issue of material fact. Gipson filed an opposition, with supporting evidence, to Defendants' motion (Docs. 89, 90) and a cross-motion for summary judgment (Doc. 94).

         II. Law and Analysis

         A. Standards governing the Motion for Summary Judgment generally.

         Under Rule 56 of the Federal Rules of Civil Procedure, a court must 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.” Paragraph

         (e) of Rule 56 also provides the following:

         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:

(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials--including the facts considered undisputed--show that the movant is entitled to it; or
(4) issue any other appropriate order.[2]

         “A genuine dispute of material fact exists ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” See Hefren v. McDermott, Inc., 820 F.3d 767, 771 (5th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In deciding a motion for summary judgment, a court must construe all facts and draw all inferences in the light most favorable to the non-movant. See Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010). However, a ...


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