United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON JUDGE.
the Court is Defendants Scott Duncan, Tyrone Kilbourne, and
Gary Aymond's Ex-Parte Motion for Summary
Judgment (Doc. 45). Also before the Court is
Plaintiffs Motion to Strike (Doc. 46) and
Defendants' First Motion for Leave to File (Doc.
50). For the reasons stated herein, Defendants'
Motion (Doc. 45) is DENIED.
Further, Plaintiffs Motion to Strike (Doc.
46) is DENIED AS MOOT, and
Defendants' Motion for Leave (Doc. 50)
is an inmate housed at the Louisiana State Penitentiary, who
alleges he was attacked by another inmate, John Duncan. In
his Complaint, Plaintiff alleged that inmate Duncan was
combative with prison authorities and announced that he was
"homicidal and suicidal," that he "did not
want to be in a cell with anyone," and would harm
himself and any inmate he was placed in a cell with. (Doc. 1,
at ¶ 7-9). Plaintiff further alleged that all three
Defendants heard these threats. (Id., at ¶ 10).
Defendants then allegedly forced inmate Duncan into
Plaintiffs cell, and inmate Duncan immediately began beating
Plaintiff once uncuffed. (Id., at pp. 14-19).
October 18, 2018, Defendants filed a Motion for Summary
Judgment (Doc. 19). The Court granted that Motion with
respect to Plaintiffs negligence claims against Defendants
and denied it with respect to Plaintiffs § 1983
failure-to-protect claims deriving from the Eighth Amendment.
See (Doc. 30). In his Opposition (Doc. 20),
Plaintiff provided declarations from three other inmates
(Docs. 20-3, 20-4, & 20-5) stating that inmate Duncan
made threats under circumstances that would have been heard
by Defendants, prior to being placed in Plaintiffs cell and
nearly one year after the Court-ordered deadline for filing
motions, Defendants bring a new Motion for Summary Judgment
to re-argue their qualified immunity defense to Plaintiffs
§ 1983 claims in light of a recent Fifth Circuit
Court will grant summary judgment where the movant
demonstrates that there is no genuine dispute as to any
material fact and that they are entitled to judgment as a
matter of law. FED. R. CIV. P. 56(a). In deciding whether the
movant has made that showing, the Court views facts and draws
reasonable inferences in the non-movant's favor. See
Vann v. City of Southaven, Miss., 884 F.3d 307, 309 (5th
Cir. 2018) (Citation omitted).
to Federal Rule of Civil Procedure 16(b)(1), a scheduling
order must be issued following a scheduling conference. A
scheduling order establishing a deadline for filing motions
was issued in September of 2017. (Doc. 16). Extending the
time to file motions is permitted under Federal Rule of Civil
Procedure 6(b)(1), which permits a court to extend time for
good cause after the original time or its extension expires
where "the party failed to act because of excusable
neglect." Fed. R. CIV. P. 6(b)(1)(B).
outset, the Court must address the fact that Defendants have
failed to comply with the deadline for filing motions in this
case. All motions were ordered to be filed by October 19,
2018, and this Motion was filed almost a year later, on
September 27, 2019. (Docs. 16 & 45). It would not be
improper to deny this Motion on purely procedural grounds,
even considering Defendants' Motion for Leave (Doc. 50),
filed four days after the Motion itself. Nevertheless, even
if the Court were to grant leave to file this Motion for
excusable neglect under Rule 6(b)(1)(B) in light of new law
cited by Defendants, Defendants' Motion fails on the
Court's previous Order rejecting Defendants'
qualified immunity defense in Defendants' first Motion to
Dismiss (Doc. 19) specifically stated that "qualified
immunity does not change the analysis" of Plaintiffs
failure-to-protect claims. (Doc. 30, at p. 4). Inmate
declarations provided by Plaintiff showed a genuine dispute
of material fact on the question of deliberate indifference
to the risk that Plaintiff would be attacked by inmate
Duncan. The same holds true now.
new Motion hinges entirely upon a new Fifth Circuit case,
Jason v. Tanner, No. 18-30837, 2019 WL 4252240 (5th
Cir. Sept. 9, 2019). In Jason, an inmate attacked
the plaintiff with a sling blade someone had discarded on the
yard, which the attacker acquired despite an ID check system
that monitored sling blades (Jason, at *1). The crux
of Jason that Defendants emphasize is the holding
that the district court misapplied the test of
"substantial risk" that a fellow inmate would
attack the plaintiff, acknowledging only a risk.
(Id., at *4). The district court further erred by
finding that the defendants disregarded that risk by failing
to prove that everyone who was supposed to be keeping an eye
on inmates was doing so at all times. Id. The Fifth
Circuit held that there was no evidence defendants shirked
their duties, which were merely to keep track of the blades
and keep an eye on prisoners while they made rounds.
adds nothing new to the relevant law. It merely offers a
factual scenario that did not meet the standard for
deliberate indifference. In Jason, the plaintiff was
attacked during an argument with another inmate with whom the
plaintiff had no previous disputes. (Id., at *1).
Here, Plaintiff also does not allege any history with his
attacker, but he has provided declarations from other inmates
corroborating his claims that inmate Duncan made vocal
threats, including those of a homicidal nature, towards any
potential cellmate before he was paired with Plaintiff.
Defendants' claim that they "did not hear □
Duncan" does not resolve the dispute of material facts
concerning inmate Duncan's threats. Defendants'
statement that "[t]he sad truth is this; Duncan would
have attacked any inmate ...