United States District Court, E.D. Louisiana
ORDER AND REASONS ON MOTION
C. WILKINSON, JR., UNITED STATES MAGISTRATE JUDGE
a civil action brought by Bashir Ibrahim Hmeid under 42
U.S.C. § 1983 (“Section 1983”) against the
Nelson Coleman Correctional Center (“Coleman”),
Deputy Charles Floyd (“Floyd”), Deputy David
Bailey (“Bailey”), Lieutenant Rocco Dominic
(“Dominic”) and Sergeant Darryl Richardson
(“Richardson”). Hmeid originally asserted six
claims: (1) While incarcerated in Coleman on August 17, 2017,
Deputies Floyd and Bailey, Lieutenant Dominic and Sergeant
Richardson used excessive force against him when they tased
and beat him during a strip search. (2) He did not receive
adequate medical care for a wrist injury that existed before
he was incarcerated or for the injuries he suffered on August
17, 2017. (3) His privacy rights were violated in the Coleman
bathroom and shower areas, and the food and the jail are
cold. (4) Jail officials tampered with his mail. (5) Coleman
inmates do not receive adequate recreation time. (6) State
Department of Corrections (“DOC”) and parish
inmates should not be housed together because parish inmates
are disruptive. Record Doc. No. 4 (Complaint at ¶ V).
22, 2018, I conducted a telephone conference in this matter.
Participating were plaintiff pro se and Steven Mauterer,
counsel for defendants. Plaintiff was sworn and testified for
all purposes permitted by Spears v. McCotter, 766
F.2d 179 (5th Cir. 1985), and its progeny. After the
Spears hearing and pursuant to my order, defense
counsel submitted to me the videotape of the subject incident
and the incident report that plaintiff referred to during his
testimony, and I reviewed them. Record Doc. Nos. 16, 18-20.
On August 15, 2018, I issued a report and recommendation in
which I recommended that plaintiff's claims naming the
jail as a defendant and concerning his medical care,
conditions of confinement, mail tampering, recreation time
and housing classification against the individual defendants
be dismissed with prejudice. Record Doc. No. 21 at p. 41. I
further recommended that further proceedings were required as
to plaintiff's excessive force claim against the
individual defendants. Id. at p. 42. The presiding
district judge adopted my report and recommendation on
October 10, 2018, and ordered that a preliminary conference
be conducted to determine (1) if counsel should be appointed
from this court's Civil Pro Bono Panel to represent
plaintiff in this matter and (2) if all parties consent to
proceed before a United States Magistrate Judge pursuant to
28 U.S.C. § 636(c). Record Doc. No. 22.
preliminary conference was conducted on November 1, 2018.
Record Doc. No. 25. At the conference, all parties orally
consented to proceed before a United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c), and plaintiff requested
appointment of counsel. Id. Counsel was subsequently
appointed to represent plaintiff in this matter. Record Doc.
No. 26. This matter was then referred to a United States
Magistrate Judge for all proceedings and entry of judgment in
accordance with 28 U.S.C. § 636(c) upon written consent
of all parties. Record Doc. Nos. 27, 28.
Motion for Summary Judgment, Record Doc. No. 47, is now
pending before me. Record Doc. No. 47. Plaintiff filed a
timely opposition memorandum. Record Doc. No. 51. Defendants
were permitted to file a reply. Record Doc. Nos. 52, 53, 54.
Having considered the complaint, the record, the submissions
of the parties and the applicable law, IT IS ORDERED that the
motion is DENIED for the following reasons.
UNDISPUTED MATERIAL FACTS
following material facts are accepted as undisputed solely
for purposes of the pending motions for summary judgment.
August 17, 2017, Hmeid was an inmate at Coleman. Record Doc.
Nos. 21 at p. 2; 56 at p. 4. On August 17, 2017, St. Charles
Parish Sheriff's Deputies including defendants Floyd,
Bailey, Dominic and Richardson conducted a search of Pod C6,
plaintiff's dorm at Coleman, in response to the smell of
smoke emanating from the dorm. Record Doc. Nos. 47-5 at pp.
34-36; 47-6 at pp. 14, 17. Of the named defendants, only
Richardson and Dominic were authorized to carry and use a
taser gun on the date of the incident. Record Doc. Nos. 47-3
at p. 27; 47-4 at p. 21; 47-5 at p. 13; 47-6 at p. 32; 47-9
at p. 2.
of the search on August 17, 2017, correctional officers,
including defendants, began to conduct strip searches of the
inmates in Pod C6. Record Doc. No. 47- 4 at p. 34.
Plaintiff's particular strip search procedure took place
in the dorm shower area. Record Doc. No. 56 at p. 9. The
incident was recorded on video by a prison surveillance
camera. Record Doc. No. 20. During the search, Hmeid removed
his clothes and proceeded to face the wall, raise his arms,
squat and cough several times. Record Doc. Nos. 47-4 at pp.
56-57, 58-62; 47-5 at pp. 45; 56 at pp. 9-10. At some point
during the search, defendant Richardson unholstered and
pointed his taser at plaintiff. Record Doc. Nos. 47-4 at p.
34; 47-5 at p. 60. Soon after, Richardson grabbed Hmeid's
left arm, and plaintiff was taken to the floor of the shower,
surrounded by five guards and handcuffed. Record Doc. Nos.
47-4 at p. 35; 56 at pp. 11; 63-64; 20 (Video Footage at Time
Hmeid was handcuffed, he was escorted from Pod C6 to the
booking area, and then to a segregation cell. Record Doc.
Nos. 47-4 at p. 35; 47-5 at pp. 61, 63. Plaintiff's
handcuffs were removed once in the segregation cell.
Id. at p. 63. An officer again instructed plaintiff
to perform the strip search procedure by bending at the
waist. Record Doc. No. 20 (Video Footage at Time Stamp
1:00:30). Hmeid squatted instead of bending at the waist as
received medical treatment for injuries after the incident.
Record Doc. Nos. 47-7 at pp. 1-2, 4; 56 at pp. 15-16. The
medical report provides that Hmeid suffered “abrasions
to [right] shoulder, [left] index finger, [left and right
knee], due to [an] altercation with deputies.” Record
Doc. No. 47-7 at p. 4.
Legal Standards for Summary Judgment Motion
judgment is proper “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing
Fed.R.Civ.P. 56(c)). “Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which the party will bear
the burden of proof at trial.” Id. A party
moving for summary judgment bears the initial burden of
demonstrating the basis for summary judgment and identifying
those portions of the record, discovery and any affidavits
supporting the conclusion that ...