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Moses v. Geo

United States District Court, W.D. Louisiana, Lake Charles Division

August 8, 2019

KELVIN MOSES
v.
GEO, ET AL.

          JAMES D. CAIN, JR., JUDGE

          REPORT AND RECOMMENDATION

          KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE

         Before 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.

         This 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.

         I.

         Background

          Moses 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.

         On July 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.

         Cooley 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.

         II.

         Summary Judgment Standard

         A court 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.

         If the 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).

         A court 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 Nat. Bank v. ...


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