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 remaining
defendants' motion for summary judgment (R. Doc. 161).
The Motion is opposed. See R. Doc. 164.
pro se plaintiff, an inmate incarcerated at Elayn
Hunt Correctional Center (“EHCC”), St. Gabriel,
Louisiana, filed this proceeding pursuant to 42 U.S.C. §
1983, the Americans With Disabilities Act, 42 U.S.C. §
12101, et. seq. (“ADA”), the
Rehabilitation Act of 1973, 29 U.S.C. § 794
(“RA”), and the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. § 1961, et seq.
(RICO) against numerous defendants, complaining that his
constitutional rights were violated when the defendants
failed to follow the prison's policy with respect to
hearing impaired inmates, resulting in excessive force being
used against the plaintiff, and causing injury to the
plaintiff to which the defendants were deliberately
indifferent. The plaintiff seeks punitive and
compensatory damages, as well as declaratory and injunctive
remaining defendants, Lindel Slater, Todd Barrere, Marvin
Hartley, Dr. Raman Singh and Dr. Preety Singh, move for
summary judgment relying upon the pleadings, a Statement of
Undisputed Facts, a certified copy of the plaintiff's
pertinent Administrative Remedy proceeding, and a certified
copy of the plaintiff's medical records.
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, as amended, the plaintiff alleges the following:
Upon arrival at EHCC on November 10, 2014, the staff properly
noted that the plaintiff is deaf in his left ear, partially
deaf in his right ear, and requires the assistance of a
hearing aid. On December 1, 2014, at approximately 7:00 a.m.,
the plaintiff was transported to the infirmary where he
remained for over two hours. Around 3:00 p.m., CO George
arrived for the evening pill call. The plaintiff attempted to
explain to CO George why he was not present for the morning
pill call, but CO George stated that the plaintiff was
present but didn't get up. Several nearby inmates
attempted to verify the plaintiff's whereabouts. CO
Murray then arrived and the plaintiff and the nearby inmates
again attempted to explain why the plaintiff had missed the
morning pill call.
Murray informed the plaintiff that he would not receive his
medication, and the plaintiff requested a grievance form
which was denied. The plaintiff then requested to speak with
a ranking officer, and CO Murry ordered the plaintiff to
“stop throwing his hands up in his face, ” even
though the plaintiff was standing approximately six feet away
from CO Murry. Co Murry then ordered that the tier be locked
down and ordered CO Jones to, “call Slater and Lt.
Slater arrived a few minutes later and CO Murry informed him
that the plaintiff was “being disruptive and throwing
his hands up.” Lt. Slater attempted to question the
plaintiff, but CO Murry kept interrupting him and began to
speak over the plaintiff. Due to his hearing impairment, the
plaintiff was no longer able to understand the multiple
orders and statements being issued by the correctional
officers. As he was unable to comprehend what orders were
being issued, he turned around and placed his hands behind
his back in order to be restrained. The plaintiff then asked
Lt. Slater who he should respond to and Lt. Slater charged
the plaintiff from behind. As a result, the plaintiff
suffered a knee fracture.
plaintiff was then taken outside the building and laid on the
walkway. Captain Hartley arrived and removed the
plaintiff's hearing aid from his right ear rendering the
plaintiff unable to understand or communicate with the EMT.
He attempted to inform the various correctional officers,
including Asst. Warden Barrere, that he could not hear
without the assistance of his hearing aid. Captain Linzy then
began yelling foul language close to the plaintiff's
face. Several unspecified officers then began brandishing
knives and removing hair from their forearms, which the
plaintiff interpreted to be a threat.
plaintiff was then transported to the infirmary where he was
diagnosed with a Schatzker II tibial plateau fracture to his
right knee. An ace bandage was ...