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Preston v. Hicks

United States District Court, W.D. Louisiana, Alexandria Division

September 6, 2019

GEORGE A. PRESTON, Plaintiff
v.
BOBBY HICKS, ET AL., Defendants

          SUMMERHAYS JUDGE

          REPORT AND RECOMMENDATION

          JOSEPH H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE

         Before 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.

         I. Background

         Preston, 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. 1).

         The 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. Id.

         The 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 break it.
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 screamed.

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.[1]

         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).

         Preston 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).[2] Hicks responds that Preston's opposition is untimely and insufficient to raise a genuine issue of material fact. (Doc. 52).

         II. Law and Analysis

         A. Standards governing the Motion for Summary Judgment.

         Under 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 fact;
(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.[3]

         “A 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).

         Additionally, 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.

         B. Standards governing ...


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