United States District Court, E.D. Louisiana
PETER ANTHONY GRANDPRE, JR.
SHERIFF MARLIN N. GUSMAN, ET AL.
ORDER AND REASONS
E. KNOWLES, III UNITED STATES MAGISTRATE JUDGE
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. §
defendants have filed motions for summary judgment pursuant
to Rule 56 of the Federal Rules of Civil
Procedure. Plaintiff has opposed the
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).
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
lawsuit, plaintiff makes the following allegations:
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.
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.
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.
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.
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.
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
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,  his excessive force claim “lies
under the Fourteenth Amendment.” Benoit v.
Bordelon, 596 Fed. App'x 264, 267 n.2 (5th Cir.
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 ...