United States District Court, W.D. Louisiana, Lake Charles Division
D. CAIN, JR., JUDGE
REPORT AND RECOMMENDATION
KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE
the court is an unopposed Motion for Summary Judgment [doc.
25] filed by defendants in this civil rights action brought
by pro se plaintiff Kelvin Moses, who was an inmate in the
custody of the Louisiana Department of Public Safety at the
time of filing. No. opposition to the motion was filed by the
plaintiff as the motion was served upon him at the River Bend
Detention Center, his last known address, but returned to
sender, marked “Not Deliverable As Addressed; Unable to
Forward.” Doc. 27.
matter has been referred to the undersigned for review,
report, and recommendation in accordance with the provisions
of 28 U.S.C. § 636 and the standing orders of this
court. For the reasons stated below, IT IS
RECOMMENDED that the Motion for Summary Judgment
[doc. 25] be GRANTED and that the action be
DISMISSED WITHOUT PREJUDICE.
filed this suit under 42 U.S.C. § 1983 and the Prison
Rape Elimination Act (PREA) on December 8, 2017, against
various employees at Allen Correctional Center
(“ACC”). Moses alleged that staff members
Sergeants William Coleman and Tucker harassed him, and that
Tucker threatened him and Coleman made a lewd comment to him.
Doc. 11, p. 2. Moss made a complaint against Sergeant Coleman
under the Prison Rape Elimination Act (“PREA”)
and was moved from Saturn Unit to Mercury Unit. Moses
subsequently called the PREA 1-800 reporting number and filed
a written complaint against Terry Langley, Warden Keith
Cooley, Warden Anthony Allemande, Warden Mark Estes, and GEO
for failure to follow PREA protocol, cruel and unusual
punishment, retaliation, discrimination, violation of his
civil rights under Section 1983, and failure to protect and
deliberate indifference. Doc. 1.
5, 2017, this Court dismissed all claims against defendants
GEO, Allen Correctional Center, David J. Donahue, William
Coleman, Anthony Allemande, Mark Estes and Sergeant Tucker
and dismissed all claims against defendants Keith Cooley and
Terry Langley, except those based upon retaliation and
violations of the Eighth Amendment. Doc. 12.
and Langley now move for summary judgment, asserting that
Moses was not transferred in retaliation; but rather,
transferred in accordance with ACC policy, pursuant to the
PREA. Doc. 25, att. 2. Defendants argue that there is no
genuine issue whether the inmate's transfer to another
unit was retaliatory or that he was subjected to cruel and
unusual punishment. Id. Moses has filed no response
to the motion and his time for doing so has passed.
should grant a motion for summary judgment when 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.P. 56. The party moving for
summary judgment is initially responsible for identifying
portions of pleadings and discovery that show the lack of a
genuine issue of material fact. Tubacex, Inc. v. M/V
Risan, 45 F.3d 951, 954 (5th Cir. 1995). The court must
deny the motion for summary judgment if the movant fails to
meet this burden. Id.
movant makes this showing, however, the burden then shifts to
the non-moving party to “set forth specific facts
showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505,
2511 (1986) (quotations omitted). This requires more than
mere allegations or denials of the adverse party's
pleadings. Instead, the nonmovant must submit
“significant probative evidence” in support of
his claim. State Farm Life Ins. Co. v. Gutterman,
896 F.2d 116, 118 (5th Cir. 1990). “If the evidence is
merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 106 S.Ct.
at 2511 (citations omitted).
may not make credibility determinations or weigh the evidence
in ruling on a motion for summary judgment. Reeves v.
Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2110
(2000). The court is also required to view all evidence in
the light most favorable to the non-moving party and draw all
reasonable inferences in that party's favor. Clift v.
Clift, 210 F.3d 268, 270 (5th Cir. 2000). Under this
standard, a genuine issue of material fact exists if a
reasonable trier of fact could render a verdict for the
nonmoving party. Brumfield v. Hollins, 551 F.3d 322,
326 (5th Cir. 2008). “A motion for summary judgment
cannot be granted simply because there is no opposition, even
if failure to oppose violated a local rule. The movant has
the burden of establishing the absence of a genuine issue of
material fact and, unless he has done so, the court may not
grant the motion, regardless of whether any response was
filed.” Hetzel v. Bethlehem Steel Corp., 50
F.3d 360, 362 n. 3 (5th Cir. 1995) (quoting Hibernial
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