United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE
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.
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
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.
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).
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. (Doc. 5).
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).
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).
Law and Analysis
Summary Judgment Standard
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.'” 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).
Gipson's complaint against Villemarette should be
dismissed for failure to effect service.
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
Defendants' Motion for Summary Judgment ...