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Gipson v. Leblanc

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

September 6, 2019

RICKEY WAYNE GIPSON, Plaintiff
v.
JAMES LEBLANC, et al., Defendants

          DRELL JUDGE

          REPORT AND RECOMMENDATION

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

         Defendants Sandy McCain and Troy Poret filed a Motion for Summary Judgment. (Doc. 29). Because there are genuine issues of material fact as to whether Defendants were deliberately indifferent to Plaintiff Ricky Wayne Gipson's (“Gipson's”) exposure to environmental tobacco smoke (“ETS”), Defendants' Motion for Summary Judgment (Doc. 29) should be DENIED.

         I. Background

         Gipson filed a complaint pursuant to 42 U.S.C. § 1983, pro se and in forma pauperis. (Docs. 1, 5, 12). Gipson's complaint against James LeBlanc, Secretary of the Louisiana Department of Public Safety and Corrections, and the State of Louisiana was dismissed. (Doc. 15). The remaining named Defendants are Sandy McCain (“McCain”) (warden of the Raymond Laborde Correctional Center in Cottonport, Louisiana (“RLCC”)), Troy Poret (“Poret”) (deputy warden of the RLCC), and Blaine Villemarette (“Villemarette”) (assistant warden of RLCC). Gipson is suing Defendants in both their individual and official capacities.

         Gipson complains of exposure to ETS. Gipson seeks a jury trial, appointment of an expert, declaratory judgment, injunctive relief (removal of all tobacco products from the prison commissary), compensatory and punitive damages, and costs.

         Gipson alleges that he has been at RLCC since July 12, 2016 (Doc. 1, p. 5). RLCC removed cigarettes from the prison commissary in 2016, in belated compliance with La. R.S. 40:1300.256. (Doc. 1, p. 5). As a result, inmates began purchasing smokeless tobacco (“dip”), drying it in microwaves, and using pages of the Bible to roll and smoke it. (Doc. 1, p. 5).

         The drying process in the microwave causes a foul odor and ETS. (Doc. 1, p. 5). ETS aggravates Gipson's allergies and causes severe headaches, burning and teary eyes, a runny nose, sneezing, and sometimes, chest pain. (Doc. 12, p. 2). A study posted in RLCC shows smoking dip causes chronic obstructive pulmonary disorder, which leads to emphysema and lung failure, and is more dangerous than smoking cigarettes.[1] (Doc. 5).

         Gipson alleges he complained to Defendants of exposure to ETS (as well as mojo, marijuana, and crystal meth), but that Defendants refuse to take steps to address the problem, such as not selling dipping tobacco in the commissary. (Doc. 1, p. 6; Doc. 5).

         McCain and Poret filed a Motion for Summary Judgment with affidavits, documentary evidence, and a statement of uncontested material facts. (Doc. 29). Gipson filed a response to that motion (Doc. 31) with exhibits attached (Doc. 31-2). Defendants replied. (Doc. 32).[2]

         II. Law and Analysis

         A. Summary Judgment Standard

         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.'” 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).

         B. Gipson's complaint against Villemarette should be dismissed for failure to effect service.

         Villemarette was never served because he is no longer employed at RLCC. His summons was returned unexecuted. (Doc. 19). Because more than 120 days have passed since Gipson filed his complaint, and because Villemarette's summons was returned unexecuted, the claims against Villemarette should be dismissed without prejudice under Fed.R.Civ.P. 4(m). See McGinnis v. Shalala, 2 F.3d 548, 550 (5th Cir. 1993), cert. den., 510 U.S. 1191 (1994); Systems Signs Supplies v. U.S. Dept. of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990); Kersh v. Derosier, 851 F.2d 1509, 1512 (5th Cir. 1988).

         C. Defendants' Motion for Summary Judgment ...


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