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Grandpre v. Gusman

United States District Court, E.D. Louisiana

July 31, 2018

PETER ANTHONY GRANDPRE, JR.
v.
SHERIFF MARLIN N. GUSMAN, ET AL.

          ORDER AND REASONS

          DANIEL E. KNOWLES, III UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Peter Anthony Grandpre, Jr., a state inmate, filed this pro se and in forma pauperis civil action pursuant to 42 U.S.C. § 1983. He named as defendants Sheriff Marlin N. Gusman, Warden Chaz Ruiz, Lieutenant Henry, and Deputy B. Savage. In this lawsuit, plaintiff claims that excessive force was used against him and that he was denied immediate medical attention after the incident. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).[1]

         The defendants have filed motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.[2] Plaintiff has opposed the motions.[3]

         In reviewing a motion for summary judgment, the Court may grant the motion when no genuine issue of material fact exists and the mover is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). There is no “genuine issue” when the record taken as a whole could not lead a rational trier of fact to find for the nonmovant. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         “Procedurally, the party moving for summary judgment bears the initial burden of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact.” Taita Chemical Co., Ltd. v. Westlake Styrene Corp., 246 F.3d 377, 385 (5th Cir. 2001) (quotation marks and brackets omitted). The party opposing summary judgment must then “go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal quotation marks omitted); accord Provident Life and Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th Cir. 2001). The Court has no duty to search the record for evidence to support a party's opposition to summary judgment; rather, “[t]he party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which the evidence supports his or her claim.” Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). Conclusory statements, speculation, and unsubstantiated assertions are not competent summary judgment evidence and will not suffice to defeat a properly supported motion for summary judgment. Id.; Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996).

         In this lawsuit, plaintiff makes the following allegations:

         On September 8, 2016, plaintiff was confined on Pod F-1 at the Orleans Justice Center. At 9:00 p.m., Captain Ross, Deputy Savage, and another unidentified deputy entered the pod. Savage approached plaintiff and asked why he was not returning to his cell for lockdown. Plaintiff replied that he had spoken to Deputy Zanders, who was aware that plaintiff had just been notified of a death in his family. Savage responded with an obscenity, instructed plaintiff to return to his cell, and tried to grab him. Plaintiff backed away, telling Savage that no use of force was necessary. Plaintiff then moved his hand away as Savage attempted to apply handcuffs. At that point, the unidentified deputy approached and identified himself as a ranking officer. As that officer and plaintiff were speaking, Savage again tried to grab plaintiff. Plaintiff responded by pointing his finger at Savage and telling him not to touch him. Savage then again tried to grab plaintiff, who extended his hand to keep to keep Savage at a distance. Savage then sprayed plaintiff with a burst chemical spray. Telling Savage that he should not have used the spray, plaintiff retreated, whereupon Savage sprayed him with two more bursts of chemical spray.

         After plaintiff unsuccessfully tried to wash the spray off of his face at the cell sink, he requested medical attention. The unidentified deputy then handcuffed plaintiff to escort him to the medical unit; however, as they were leaving the pod, Lt. Henry stopped them. Saying that plaintiff could not go to the medical unit, Henry instead returned plaintiff to his cell. Once he was locked in his cell, with his hands still cuffed and his face burning from the spray, plaintiff began to have a panic attack and was unable to catch his breath. After five or ten minutes, two unidentified deputies then escorted him to the medical department. He was later returned to his cell without a shower to remove the spray residue.

         In their motion for summary judgment, the defendants do not dispute the foregoing allegations. Rather, they simply argue that the allegations, even if true, fail to rise to the level of constitutional violations.

         Before addressing the merits of plaintiff's underlying claims, the Court first notes that, for the following reasons, plaintiff's allegations are insufficient to state a claim against Sheriff Gusman and Warden Ruiz in either their official or individual capacities.

         If Gusman and Ruiz are being sued in their official capacities, it is clear that “[o]fficial capacity suits generally represent another way of pleading an action against an entity of which an officer is an agent.” Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999). Accordingly, any official-capacities claims against Gusman and Ruiz would in reality be claims against the local governmental body itself. Maize v. Correct Health Jefferson, L.L.C., Civ. Action No. 13-5925, 2013 WL 6490549, at *2 (E.D. La. Dec. 10, 2013); see also Picard v. Gusman, Civ. Action No. 12-1966, 2012 WL 6504772, at *4 (E.D. La. Nov. 26, 2012), adopted, 2012 WL 6504528 (E.D. La. Dec. 13, 2012); Alexander v. City of Gretna, Civ. Action No. 06-5405, 2010 WL 3791714, at *3 (E.D. La. Sept. 17, 2010); Weatherspoon v. Normand, Civ. Action No. 10-060, 2010 WL 724171, at *2-3 (E.D. La. Feb. 22, 2010). However, the United States Fifth Circuit Court of Appeals has explained:

In order to hold a municipality or a local government unit liable under Section 1983 for the misconduct of one of its employees, a plaintiff must initially allege that an official policy or custom was a cause in fact of the deprivation of rights inflicted. To satisfy the cause in fact requirement, a plaintiff must allege that the custom or policy served as a moving force behind the constitutional violation at issue or that [his] injuries resulted from the execution of an official policy or custom. The description of a policy or custom and its relationship to the underlying constitutional violation, moreover, cannot be conclusory; it must contain specific facts.

Spiller v. City of Texas City, Police Department, 130 F.3d 162, 167 (5th Cir. 1997) (emphasis added; citations, quotation marks, and brackets omitted). Further, “[a] plaintiff may not infer a policy merely because harm resulted from some interaction with a governmental entity.” Colle v. Brazos County, Texas, 981 F.2d 237, 245 (5th Cir. 1993); see also Wetzel v. Penzato, Civ. Action No. 09-7211, 2009 WL 5125465, at *3 (E.D. La. Dec. 23, 2009). Rather, he must identify the policy or custom which allegedly caused the deprivation of his constitutional rights. See, e.g., Murray v. Town of Mansura, 76 Fed. App'x 547, 549 (5th Cir. 2003); Treece v. Louisiana, 74 Fed. App'x 315, 316 (5th Cir. 2003); Wetzel, 2009 WL 5125465, at *3. In the instant case, plaintiff does not allege that his constitutional rights were violated as a result of a policy or custom, much less identify such a policy or custom. Accordingly, he has failed to state a proper official-capacity claim against Gusman or Ruiz.

         On the other hand, if Gusman and Ruiz are being sued in their individual capacities, “[p]laintiffs suing governmental officials in their individual capacities ... must allege specific conduct giving rise to a constitutional violation. This standard requires more than conclusional assertions: The plaintiff must allege specific facts giving rise to the constitutional claims.” Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002) (citation omitted). Moreover, “[p]ersonal involvement is an essential element of a civil rights cause of action.” Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983). In the instant case, the complaint includes no allegations whatsoever against either Gusman or Ruiz. Where, as here, a plaintiff merely lists an individual as a defendant but makes no factual allegations against him, no cognizable claim has been stated against that defendant. See, e.g., Hall v. Peck, Civ. Action No. 16-13527, 2017 WL 745729, at *2 (E.D. La. Jan. 12, 2017), adopted, 2017 WL 788354 (E.D. La. Feb. 23, 2017); Reavis v. State of Louisiana, Civ. Action No. 16-1692, 2016 WL 3571440, at *3 (E.D. La. June 8, 2016), adopted, 2016 WL 3524139 (E.D. La. June 28, 2016); White v. Gusman, Civ. Action No. 14-2131, 2014 WL 6065617, at *2 (E.D. La. Nov. 12, 2014). Accordingly, plaintiff has likewise failed to state a proper individual-capacity claim against Gusman or Ruiz.

         In any event, even if plaintiff were able to correct those pleading defects, it still would not ultimately aid him. For the following reasons, none of the defendants named in this lawsuit can be found liable because, for the following reasons, there was no underlying constitutional violation. Plaintiff's primary claim is that Deputy Savage's use of chemical spray constituted excessive force. Because plaintiff was a pretrial detainee at the time of the incident, [4] his excessive force claim “lies under the Fourteenth Amendment.” Benoit v. Bordelon, 596 Fed. App'x 264, 267 n.2 (5th Cir. 2015).

         In this Circuit, it had long been the rule that excessive force claims brought pursuant to the Fourteenth Amendment by pretrial detainees were to be considered using the same analysis as employed when considering excessive force claims brought pursuant to the Eighth Amendment by convicted prisoners. Valencia v. Wiggins, 981 F.2d 1440, 1446-47 (5th Cir. 1993). Under that analysis, courts were to employ the subjective standard announced in Whitley v. Albers, 475 U.S. 312 (1986), and Hudson v. McMillian, 503 U.S. 1 (1992), which looked to “whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically for the very purpose of causing harm.” Valencia, 981 F.2d at 1446 (internal quotation marks omitted); accord Kitchen v. Dallas County, Texas, 759 F.3d 468, 477 (5th Cir. 2014). As part of that analysis, courts were to consider the following factors:

1. the extent of the injury suffered;
2. the need for the application of force;
3. the relationship between the need and the amount of ...

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