United States District Court, W.D. Louisiana, Alexandria Division
GEORGE A. PRESTON, Plaintiff
BOBBY HICKS, ET AL., Defendants
REPORT AND RECOMMENDATION
H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE
the Court is a Motion for Summary Judgment (Doc. 47) filed by
Defendant Bobby Hicks (“Hicks”). Plaintiff George
A. Preston (“Preston”) filed an untimely
opposition. (Doc. 51). Genuine issues of material fact remain
as to whether Hicks is entitled to qualified immunity and as
to whether Hicks's use of force - a straight-arm bar
takedown and force after Preston was on the ground was
excessive. Thus, Hicks's Motion for Summary Judgment
(Doc. 47) should be DENIED.
proceeding in forma pauperis, filed a civil rights
Complaint under 42 U.S.C. § 1983. (Doc. 1). Preston is
an inmate in the custody of the Louisiana Department of
Public Safety and Corrections (“DOC”),
incarcerated at the Raymond Laborde Correctional Center
(“RLCC”) (formerly Avoyelles Correctional Center
(“ACC”)) in Cottonport, Louisiana. Preston
complained of excessive force by five prison officials. (Doc.
undersigned recommended dismissal of Preston's Complaint
pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915(A).
(Doc. 9). The District Judge agreed. (Doc. 12). Preston
appealed to the United States Court of Appeals for the Fifth
Circuit. Preston v. Hicks, 721 Fed.Appx.
342 (5th Cir. 2018). The Fifth Circuit affirmed in part,
reversed in part, and remanded for further proceedings.
Fifth Circuit summarized the allegations as follows:
[Preston] filed a civil rights complaint against Lieutenant
Bobby Hicks and four other state correctional officers under
42 U.S.C. § 1983, alleging use of excessive force in
violation of the Eighth Amendment. Preston alleged the
following in his complaint. Sergeant Ford, with Preston
nearby, opened the door to the cell of another inmate, Jeremy
Lenor. Preston ran into the cell and started “joking
around” with Lenor. Ford shouted for help from
Lieutenant Bowie, Lieutenant Hicks, Sergeant Dauzat, and
Sergeant Augustine. Those other officers soon entered the
cell. Lieutenant Hicks then elbowed Preston several times in
the face. Several of the officers pulled Preston from the
cell and two of them “slammed” him to the floor.
On the floor, Sergeant Augustine kept Preston's left arm
“strained” behind him while Lieutenant Hicks
allegedly pulled and twisted Preston's right arm. Preston
then screamed that Hicks was hurting his arm and was going to
Preston alleges that Hicks relaxed the twisting of his arm
only when a bone began protruding from his shoulder area,
causing a shoulder separation. Preston filed an
administrative complaint, which was denied. The denial noted
that he had been evaluated by medical staff who reported that
his “right shoulder did not appear to be out of
place.” A doctor ordered an x-ray, which allegedly
showed no fracture or dislocation.
In a disciplinary report Preston attached to the complaint,
Hicks reported that Preston ignored an order not to enter the
other cell and had attempted to hit Lenor. Preston's
evidence included affidavits from two other inmates who both
claimed that Preston did not resist the officers and that
Hicks appeared to be twisting Preston's arm as he
Preston, 721 Fed.Appx. at 343-44. The Fifth Circuit
stated that Preston's allegations were sufficient to
state an excessive force claim against Hicks, but that
Preston failed to state a claim against the guards who
allegedly held Preston to the floor while Hicks pulled and
twisted Preston's arm. Id. Thus, the sole
remaining claim before the Court is Preston's excessive
force claim against Hicks.
answered, asserting various affirmative defenses. (Doc. 28).
Hicks now moves for Summary Judgment (Doc. 47), seeking
dismissal of Preston's action. (Doc. 47). Hicks asserts
there is no genuine issue of material fact that Hicks is
entitled to qualified immunity and, alternatively, that
Hicks's use of force was applied in a good faith effort
to restore and maintain order. (Doc. 47, p. 1). In addition
to his Statement of Uncontested Material Facts, Hicks
attaches in support: (1) the affidavit of Craig Laborde, with
attachments; and (2) the affidavit of Hicks, with an
attachment. (Docs. 47-1, 47-2, 47-3).
opposes and attaches in support: (1) a Statement of Disputed
Factual Issues; (2) his own Declaration; (3) the Declaration
of Ashton Campbell; (4) the Declaration of Jeffery Jacobs;
(5) the Declaration of Carroll Celestine; (6) photographs of
Preston's injury; and (7) Preston's medical record
pertaining to his right shoulder. (Docs. 51-1,
51-2). Hicks responds that Preston's
opposition is untimely and insufficient to raise a genuine
issue of material fact. (Doc. 52).
Law and Analysis
Standards governing the Motion for Summary
Rule 56 of the Federal Rules of Civil Procedure, a court must
grant summary judgment “if 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.” Paragraph
(e) of Rule 56 also provides the following:
If a party fails to properly support an assertion of fact or
fails to properly address another party's assertion of
fact as required by Rule 56(c), the court may:
(1) give an opportunity to properly support or address the
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting
materials--including the facts considered undisputed--show
that the movant is entitled to it; or
(4) issue any other appropriate order.
genuine dispute of material fact exists ‘if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.'” See Hefren
v. McDermott, Inc., 820 F.3d 767, 771 (5th Cir. 2016)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). In deciding a motion for summary judgment,
a court must construe all facts and draw all inferences in
the light most favorable to the non-movant. See Dillon v.
Rogers, 596 F.3d 260, 266 (5th Cir. 2010). However, a
mere scintilla of evidence is insufficient to defeat a motion
for summary judgment. See Stewart v. Murphy, 174
F.3d 530, 533 (5th Cir. 1999).
where a defendant asserts qualified immunity at the summary
judgment stage, “the burden shifts to the Plaintiff to
raise facts that dispute the defendant's assertion of
qualified immunity.” Estate of Pollard v. Hood
Cnty., Tex, 579 Fed.Appx. 260, 264 (5th Cir. 2014) (per
curiam). The court must still view all facts and make all
reasonable inferences in light most favorable to the
plaintiff. Id. But a “plaintiff must produce
evidence that presents a genuine issue of material fact that
(1) the defendants' conduct amounts to a violation of the
plaintiff's constitutional right; and (2) the
defendants' actions were ‘objectively unreasonable
in light of clearly established law at the time of the
conduct in question.'” Id. (quoting
Cantrell v. City of Murphy, 666 F.3d 911, 922 (5th
Cir. 2012). cert. denied, 133 S.Ct. 119 (2012)). If
the plaintiff fails to produce such evidence, the motion for
summary judgment should be granted. Estate of
Pollard, 579 Fed.Appx. at 264.
Standards governing ...