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Gibson v. Leblanc

United States District Court, M.D. Louisiana

July 16, 2019




         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.

         In 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.



         This matter comes before the Court on the remaining defendants' Motion for Summary Judgment (R. Doc. 188). The Motion is not opposed.

         The 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.[1] The plaintiff seeks punitive and compensatory damages, as well as declaratory and injunctive relief.

         The remaining defendants[2], Lindel Slater, Todd Barrere, and Marvin Hartley 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 Mail Room Call Out Sheet & Receipt.

         Pursuant 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).

         In his 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 Murry then arrived and the plaintiff and the nearby inmates again attempted to explain why the plaintiff had missed the morning pill call.

         CO Murry 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 only.”

         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.

         The 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.

         The 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 ...

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