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Smith v. Davis

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

April 9, 2019

ROBERT SMITH #579741
v.
ROBERT DAVIS

          Judge DOUGHTY

          REPORT AND RECOMMENDATION

          MARK L. HORNSBY U.S. MAGISTRATE JUDGE

         Introduction

         Robert Smith (“Plaintiff”) is a self-represented prisoner who was formerly housed at the David Wade Correctional Center (“DWCC”). He filed this civil rights action against Correctional Officer Robert Davis based on allegations that Davis sexually assaulted and harassed him. Before the court is Davis' Motion for Summary Judgment (Doc. 35) that asserts the defenses of failure to exhaust administrative remedies and qualified immunity. For the reasons that follow, it is recommended that the motion be granted.

         Background Facts

         Plaintiff's first communication with the court regarding this matter was a letter in which he alleged that he was sexually assaulted in his cell on July 21, 2017. The letter stated that Plaintiff filed a complaint against Sgt. Robert Davis under the Prison Rape Elimination Act (“PREA”). Plaintiff wrote that Sgt. Davis “grabbed my butt and pressed his hard penis in my back, ” and stopped only when Plaintiff broke out of his handcuffs, fought off Davis with mixed martial arts, and placed the handcuffs on Davis before shoving him out of the cell. Plaintiff also wrote that he had “been raped more than once by the same inmate” with nothing done about it. Doc. 1.

         Plaintiff concluded his initial submission, which was styled as a letter to the clerk of court, by saying that he was trying to get some outside help to pursue his legal claims. The court responded by providing Plaintiff a copy of a Section 1983 complaint, which Plaintiff then filed (Doc. 4). Plaintiff's complaint named Robert Davis as the sole defendant. He alleged that Davis came to his cell to take Plaintiff for his shower but, after Plaintiff was handcuffed behind his back and on his knees, Davis “grabbed my butt and pressed his hard penis in my back” even though Plaintiff told him to stop. Davis left the cell but then stood in front of a tier door “licking his lips why watching me shower!” Plaintiff stated: “This happened July 19, 2017.” Plaintiff attached a copy of a PREA complaint form to his judicial complaint. The PREA complaint also referred to the date of the incident as July 19, 2017. The form indicated that an investigation determined the allegation to be unsubstantiated.

         Sgt. Davis' summary judgment materials include a copy of the administrative remedy process grievance filed by Plaintiff, along with related investigative materials and findings. Plaintiff's grievance began: “This is a PREA report that is July 19, 2017 hearby correct word for word!” Plaintiff wrote that he was taken to the showers and, “I keep on seeing Sgt. Davis standing out A tier door just staring at me why I was showering and he keept on licking his lips!” Plaintiff added allegations that Davis was a pervert and a predator, and that he had threatened to choke Plaintiff. Plaintiff wrote, “This is on July 17, 2017 after haircuts!” The grievance did not make any reference to alleged sexual contact. Plaintiff complained only that Davis stared, licked his lips, and threatened to choke Plaintiff.

         The step one grievance investigation included the submission of written statements by Sgt. Davis and two coworkers. Davis wrote that he adamantly denied the allegations. “I never kept licking my lips while offender Smith was showering.” He also denied that he sexually harassed Plaintiff or threatened to choke him. The coworkers stated that they never saw Davis licking his lips or acting other than in a professional manner. The first step response noted that the investigating officer had reviewed the statements and video surveillance, although the date of the video was not mentioned in the report. The finding stated that, during the time Plaintiff was in the shower, Sgt. Davis was busy conducting showers on other tiers, and he “did not stand at the tier door at all.” The grievance was deemed to be without merit.

         Plaintiff requested review at step two, the final step, before the S ecretary o f the D OC or his designee. He wrote that he had a witness who saw Sgt. Davis “standing there licking his lips but he did threaten to choke me” when he was on the tier. The secretary received the step two request on August 21, 2017. The date of the decision, which is potentially important, is not legible on the copy submitted by Sgt. Davis. The step two finding summarized the earlier findings and determined that Plaintiff failed to provide evidence to substantiate his allegations.

         Sgt. Davis testifies in an affidavit that he continues to be employed at DWCC and was working in Plaintiff's unit on July 19, 2017. He testifies that “[a]t no time on July 19, 2017” did he grab Plaintiff's buttock, press his penis into the back of Plaintiff, watch Plaintiff shower and lick his lips, or sexually assault Plaintiff. Coworkers Paul Pitts and Rodney Long offer corroborating affidavits in which they state they were working the same shift with Sgt. Davis on July 19, 2017. They deny that at any time on July 19 did they observe Sgt. Davis committing any of the complained of acts.

         Summary Judgment Burdens

         Summary judgment is appropriate “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.” Fed. R. Civ. Pro. 56(a). A fact is “material” if it might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2510 (1986). A dispute is “genuine” if there is sufficient evidence so that a reasonable jury could return a verdict for either party. Anderson, supra; Hamilton v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir. 2000).

         The party seeking summary judgment has the initial responsibility of informing the court of the basis for its motion and identifying those parts of the record that it believes demonstrate the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 106 S.Ct. 2548 (1986). If the moving party carries his initial burden, the burden then falls upon the nonmoving party to demonstrate the existence of a ...


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