United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR., UNITED STATES MAGISTRATE JUDGE
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the United States District
accordance with 28 U.S.C. § 636(b)(1), you have fourteen
(14) days after being served with the attached Report to file
written objections to the proposed findings of fact,
conclusions of law and recommendations therein. Failure to
file written objections to the proposed findings,
conclusions, and recommendations within 14 days after being
served will bar you, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual
findings and legal conclusions of the Magistrate Judge which
have been accepted by the District Court.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
JUDGE'S REPORT AND RECOMMENDATION
matter comes before the Court on the Cross Motions for
Summary Judgment filed on behalf of plaintiff Robert Diggins
(R. Doc. 35) and defendant Sgt. Eric Turner (R. Doc. 39). The
plaintiff's Motion is opposed. See R. Doc. 40.
pro se plaintiff, an inmate incarcerated at the
Louisiana State Penitentiary (“LSP”), Angola,
Louisiana, filed this action pursuant to 42 U.S.C. §
1983 against Sgt. Eric Turner, Sgt. Kenyon Mearday, Sgt.
Jones, and Major Simon complaining that his constitutional
rights have been violated due to the defendants'
retaliation for filing a grievance against defendant Sgt.
plaintiff moves for summary judgment relying upon the
pleadings, a Statement of Undisputed Facts, his own
affidavit, and copies of his pertinent Requests for
Administrative Remedy, excerpts of his medical records, a
disciplinary proceeding, correspondence sent to the Legal
Programs Department, an Unusual Occurrence Report, a policy
titled, “Smoking Policy, ” and the affidavit of
Trish Foster. Defendant Sgt. Turner moves for summary
judgment relying upon the pleadings, a Statement of
Undisputed Facts, the affidavit of defendant Eric Turner, and
copies of the plaintiff's enemy list, Camp J Gator Unit
Daily Post Roster dated 10/30/15, Camp J Gator 1 and 2 Unit
Logbook dated 10/30/15, Camp J Gar 1 and 2 Unit Logbooks
dated 8/12/15 - 8/15/15, Shower Log for Far 1/R dated
8/12/15, 8/14/15, and 8/15/15, defendant Eric Turner's
time sheet for 10/26/15 - 11/8/15, Time Clock Cards for Gar 1
dated 8/12/15 through 8/15/15, the plaintiff's pertinent
Requests for Administrative Remedy, and Unusual Occurrence
Reports authored by Perry Dixon and Kenyon Mearday.
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).
Complaint, the plaintiff alleges that on while in
administrative segregation defendant Sgt. Turner would not
provide the plaintiff with a jumpsuit, soap, and other items.
On August 14, 2015, Sgt. Turner threatened to retaliate
against the plaintiff if he submitted a grievance regarding
the jumpsuit, soap, and other items. Sgt. Turner threatened
to have the plaintiff moved to another area of the prison
where he would be attacked by other inmates. The plaintiff
still chose to file his grievance, which was denied at both
October 30, 2015, the plaintiff was let out of his cell for
his recreation hour at 9:30 p.m. rather than during the day
as usual. While the plaintiff was out of his cell, Sgt.
Mearday harassed the plaintiff because he would not bring a
cigarette to another offender. The plaintiff then returned to
his cell to retrieve his shower clothes, and while doing so,
Sgt. Mearday opened offender Noel Dean's cell and
offender Dean then stabbed the plaintiff multiple times.
the plaintiff tried to explain to Major Simon that Sgt.
Mearday had purposefully let offender Dean out of his cell,
Major Simon told the plaintiff to “shut the ….
up” and that he “don't like rats.”
Major Simon instructed Sgt. Mearday to write up the plaintiff
and offender Dean to cover up the incident. Offender Dean
later told unknown persons that an officer had asked him to
attack the plaintiff due to the filing of the plaintiff's
grievance against Sgt. Turner.
regards to the plaintiff's claim against him, defendant
Turner asserts that he is entitled to qualified immunity in
connection with the plaintiff's claim. Specifically,
defendant Turner contends that the plaintiff's
allegations and evidentiary showing fail to show the
existence of a genuine issue of disputed fact relative to any
alleged violation of the plaintiff's constitutional
qualified immunity defense is a familiar one and, employing a
two-step process, operates to protect public officials who
are performing discretionary tasks. Huff v. Crites,
473 Fed.Appx. 398 (5th Cir. 2012). As enunciated
in Saucier v. Katz, 533 U.S. 194 (2001), the first
step in the analysis is to consider whether, taking the facts
as alleged in the light most favorable to the plaintiff, the
defendant's conduct violated the plaintiff's
constitutional rights. Id. at 201. Second, the
district court looks to whether the rights allegedly violated
were clearly established. Id. This inquiry, the
Court stated, is undertaken in light of the specific context
of the case, not as a broad, general proposition.
Id. The relevant, dispositive inquiry in determining
whether a constitutional right was clearly established is
whether it would have been clear to a reasonable state
official that his conduct was unlawful in the situation which
he confronted. Id. at 202. The assertion of the
qualified immunity defense alters the summary judgment burden
of proof. Michalik v. Hermann, 422 F.3d 252, 262
(5th Cir. 2005). Once a defendant pleads qualified
immunity, the burden shifts to the plaintiff, who “must
rebut the defense by establishing that the official's