United States District Court, M.D. Louisiana
RULING AND ORDER
W. DEGRAVELLES, JUDGE UNITED STATES DISTRICT COURT
matter comes before the Court on the remaining
defendants' Motion for Summary Judgment (R. Doc. 219).
The Motion is opposed. See R. Doc. 222.
pro se plaintiff, an inmate incarcerated at
Louisiana State Penitentiary (“LSP”), Angola,
Louisiana, filed this proceeding pursuant to 42 U.S.C. §
1983 against Capt. William Rosso, Asst. Warden Chad Menzina,
Major Willie Richardson, Capt. Benjamin Zeringue Warden Burl
Cain, and Dr. John Doe, complaining that his constitutional
rights have been violated through excessive force, deliberate
indifference to his serious medical needs, denial of due
process in connection with disciplinary proceedings, and
retaliation for the exercise of First Amendment
rights. The plaintiff seeks compensatory and
punitive damages, as well as declaratory and injunctive
remaining defendants move for summary judgment relying upon
the pleadings, a Statement of Uncontested Material Facts, the
Affidavit of M. Sgt. Brandy Giroir, and a copy of the
Louisiana Administrative Code, Title 22, Part I, Section 325.
The plaintiff opposes the summary judgment relying upon the
pleadings, a Response to the Defendants' Statement of
Uncontested Material Facts, a copy of the Louisiana
Department of Public Safety and Corrections' Disciplinary
Rules and Procedures for Adult Offenders, and excerpts of the
depositions of the plaintiff and Sgt. Trevor Miles.
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).
Verified Complaint, the plaintiff alleges the following: On
August 6, 2013, he was injured in a vehicle accident which
required him to wear a sling on his left arm. On May 20,
2014, the plaintiff was standing in the light duty line at
work call at Camp D when he was instructed by defendant Capt.
Rosso to work in the field. The plaintiff showed defendant
Rosso his indoor duty status form, and told him that he could
not work in the field. Defendant Rosso began yelling and
cursing at the plaintiff, and told him to go to work in the
field or that he would be placed in administrative
segregation. The plaintiff turned away from defendant Rosso,
who grabbed the strap of the plaintiff's arm sling and
pulled it, causing the sling to be ripped off of the
plaintiff's arm. Defendant Rosso then twisted the
plaintiff's arm behind his back, and he felt something
pop or tear in his shoulder. The plaintiff was then placed in
administrative segregation for Rule 5 (Aggravated
Disobedience) and Rule 28 (Aggravated Work Offense)
three hours later, the plaintiff was examined by an EMT, but
received no further treatment. Two days later, on May 22,
2014, the plaintiff made an emergency medical complaint due
to the pain he was experiencing in his left shoulder. The
plaintiff was taken to the prison hospital. An x-ray of the
plaintiff's shoulder was negative, and the plaintiff was
the plaintiff returned from the hospital, a disciplinary
hearing was held, chaired by defendant Major Richardson.
Despite showing defendant Major Richardson his indoor duty
status form, the plaintiff was found guilty and sentenced to
four weeks loss of canteen.
plaintiff was subsequently seen by Dr. Lavaspere on June 4,
2014, who ordered an MRI and orthopedic consultation. The
plaintiff later filed an ARP against defendant Rosso on
August 18, 2014.
September 4, 2014, the plaintiff was called to the Camp D
Security Supervisor's office. Defendant Asst. Warden
Menzina, in the presence of defendants Major Richardson,
Capt. Rosso, and Capt. Zeringue (and Col. Randy Robinson who
has not been named as a defendant), told the plaintiff to
withdraw his ARP. The plaintiff refused and defendants
Menzina and Rosso began to curse at him, and stated that the
plaintiff could either withdraw his ARP or they were going
to, “f*** over you.” The plaintiff again refused,
and he was told by defendant Rosso to, “get your stupid
a** out of here and just get ready, because you don't
September 8, 2014 an MRI of the plaintiff's left shoulder
revealed a torn rotator cuff and ligament damage. On
September 27, 2014, the plaintiff was placed in
administrative segregation by defendant Zeringue who authored
a false Disciplinary Report accusing the plaintiff of
violating Rule 5 (Aggravated Disobedience). A disciplinary
hearing was held on September 30, 2014, and the plaintiff was
found guilty and sentenced to Camp J. The plaintiff filed a
disciplinary Appeal with defendant Cain on October 3, 2014.
As of the filing of the Complaint, the plaintiff's Appeal
had not been answered.
response to the plaintiff's allegations, the defendants
contend that the plaintiff's retaliation claim is subject
to dismissal for failure to exhaust administrative remedies.
In this regard, pursuant to 42 U.S.C. § 1997e, the
plaintiff was required to exhaust administrative remedies
available to him at the prison prior to commencing a civil
action in this Court with respect to prison
conditions. This provision is mandatory and applies
broadly to “all inmate suits about prison life.”
Porter v. Nussle, 534 U.S. 516, 532 (2002). Further,
a prisoner must exhaust administrative remedies by complying
with applicable prison grievance procedures before filing a
suit relative to prison conditions. Johnson v.
Johnson, 385 F.3d 503, 517 (5th Cir. 2004).
Not only must the prisoner exhaust all available remedies,
but such exhaustion must be proper, including compliance with
an agency's deadlines and other critical procedural
rules. Woodford v. Ngo, 548 U.S. 81, 90 (2006). One
of the principal purposes of the administrative exhaustion
requirement is to provide fair notice to prison officials of
an inmate's specific complaints so as to provide
“‘time and opportunity to address complaints
internally.'” Johnson v. Johnson,
supra, 385 F.3d at 516, quoting Porter v.
Nussle, supra, 534 U.S. at 525. Further, the
degree of specificity necessary in a prisoner's grievance
should be evaluated in light of this intended purpose.
defendants assert that the plaintiff never initiated a formal
grievance with regards to his retaliation claim. The
plaintiff complained in his ARP (“LSP-2014-2559)
regarding the alleged use of excessive force by defendant
Rosso. See R. Doc. 20-1, p. 18-19. On September 30,
2014 a First Step Response was issued, and relief was denied.
See R. Doc. 20-1, p. 4. On October 5, 2014, the
plaintiff attempted to supplement his ARP by adding his
retaliation claim. See R. Doc. 1-2, p. 11-14. On
October 9, 2014, the plaintiff proceeded to the Second Step
wherein he complained of retaliation by Camp-D Security for
refusing to drop his ARP. See R. Doc. 1-2, p. 16-17.
On November 19, 2014 a Second Step Response was issued, and
relief was denied. The Second Step Response addresses the May
20, 2014 allege use of excessive force by defendant Rosso,
and the disciplinary report subsequently issued with regard
to that incident. As such, the defendants are correct that
the plaintiff's claim of retaliation was not addressed in
the ARP proceeding.
the plaintiff correctly points out in his Opposition that he
appropriately asserted his retaliation claim regarding the
allegedly false disciplinary charge in his appeal of the
disciplinary board's decision. The plaintiff asserts in
his Verified Complaint, in his deposition, and again in his
Opposition that he appealed the findings of the disciplinary
board issued on September 30, 2014 to former Warden Cain,
then after not receiving a response, to Secretary James
LeBlanc. A purported copy of these appeals is attached to the
plaintiff's Complaint. See R. Doc. 1-2, p.
28-32. Therein the plaintiff complains of retaliation by
defendants Richardson, Zeringue, and Menzina. As noted by the
plaintiff, the Fifth Circuit has found that the proper method
of exhaustion for claims regarding an allegedly false
disciplinary report is through a disciplinary appeal. See
Richardson v. Spurlock, 260 F.3d 495, 499 (5th Cir.
2001). The Court ...