Jason v. LeBlanc et al, No. 2:2015cv00607 - Document 73 (E.D. La. 2017)
Court Description: ORDER AND REASONS: ORDERED that the Defendants' 51 Motion for Summary Judgment on the Basis on Qualified Immunity is DENIED WITHOUT PREJUDICE, and may be refiled after the completion of the limited discovery ordered herein. Signed by Judge Susie Morgan on 9/21/2017. (clc)
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Jason v. LeBlanc et al Doc. 73 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A CLAREN CE JOSEPH JASON , Plain tiff CIVIL D OCKET VERSU S N O. 15 -6 0 7 J AMES LEBLAN C, ET AL., D e fe n d an ts SECTION : “E” ( 5) ORD ER AN D REAS ON S Before the Court is a m otion for sum m ary judgm ent based on qualified im m unity filed by Defendants J am es LeBlanc, Secretary of the Louisiana Departm ent of Public Safety and Corrections (DPSC), Robert Tanner, current Warden of the Rayburn Correctional Center (RCC), Lt. Shane Ladner, and Sgt. Master Bradley Pierce. 1 Plaintiff, Clarence J oseph J ason opposes this m otion. 2 FACTU AL AN D PROCED U RAL BACKGROU N D On February 18, 20 15, Plaintiff filed his initial com plaint regarding an incident that occurred at the Rayburn Correctional Center (“RCC”) on August 27, 20 14. 3 Plaintiff filed an am en ded com plaint on J uly 6, 20 15, 4 and a Schulter Reply Brief on Septem ber 8 , 20 15. 5 It is uncontested that Plaintiff suffered injuries when he was hit from behind with a swing blade origin ally issued by Defendant Pierce to Bernard Turner, another inm ate at RCC. 6 At som e point after the swing blade was issued to Turner, Turner abandoned the tool on the prison yard and went inside the prison to watch TV. 7 At this point, another 1 R. Doc. 51. R. Doc. 59. 3 R. Doc. 1. 4 R. Doc. 22. 5 R. Doc. 27. 6 R. Doc. 51-1 at ¶¶ 30 , 36; R. Doc. 59-14 at ¶¶ 30 , 36. 7 R. Doc. 51-1 at ¶ 33; R. Doc. 59-14 at ¶ 33. 2 1 Dockets.Justia.com inm ate, Victor Cooper, picked up the swing blade and used it to attack the Plaintiff. 8 Plaintiff alleges claim s pursuant to Title 42, United States Code, Section 1983 against each of the Defendants in their in dividual capacities for violations of his Eighth Am en dm ent rights and again st Defendants LeBlanc and Tanner for their failure train and supervise. 9 On Decem ber 27, 20 16, Defendants filed their m otion for sum m ary judgm ent based on qualified im m unity. 10 On J anuary 3, 20 17, the Court granted Plaintiff’s m otion for an extension of tim e to file a response to the Defendants’ m otion for sum m ary judgm ent. 11 On J anuary 24, 20 17, Plaintiff filed his response in opposition to the Defendants’ m otion. 12 In his opposition, Plain tiff requests that the Court either deny the Defendants’ m otion or defer ruling until discovery has occurred. 13 LEGAL STAN D ARD I. Sum m ary J udgm ent Sum m ary judgm ent is appropriate only “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.”14 “An issue is m aterial if its resolution could affect the outcom e of the action.”15 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrains from m aking credibility determ inations or weighing 8 R. Doc. 51-1 at ¶¶ 35, 37; R. Doc. 59-15 at ¶¶ 35, 37. R. Docs. 1, 22. Defendants’ m otion to dism iss claim s against them in their official capacities, R. Doc. 23, was granted on August 24, 20 15. R. Doc. 26. 10 R. Doc. 51. 11 R. Doc. 57. 12 R. Doc. 59. 13 R. Doc. 59, at 26. The Plain tiff previously filed a m otion to com pel discovery pursuant to Rule 37(a)(3)(B) of the Federal Rules of Civil Procedure. R. Doc. 48. After oral argum ent on the m otion to com pel before Magistrate J udge North, the parties agreed that a stay of discovery is appropriate until Defendants’ pending m otion for sum m ary judgm ent on the issue of qualified im m unity is resolved. R. Doc. 58 . 14 F ED . R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986). 15 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 9 2 the evidence.”16 All reasonable inferences are drawn in favor of the nonm oving party. 17 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the nonm oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 18 If the dispositive issue is on e on which the m oving party will bear the burden of persuasion at trial, the m oving party “m ust com e forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’” 19 If the m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries this burden, the burden of production then shifts to the nonm oving party to direct the Court’s attention to som ething in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed exist. 20 If the dispositive issue is one on which the nonm oving party will bear the burden of persuasion at trial, the m oving party m ay satisfy its burden of production by either (1) subm itting affirm ative eviden ce that negates an essential elem ent of the nonm ovant’s claim , or (2) dem onstrating there is no evidence in the record to establish an essential elem ent of the nonmovant’s claim . 21 When proceeding under the first option, if the 16 Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 20 0 8); see also Reeves v . Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 17 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 18 Sm ith v. Am edisy s, Inc., 298 F.3d 434, 440 (5th Cir. 20 0 2). 19 Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1263– 64 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)). 20 Celotex, 477 U.S. at 322– 24. 21 Id. at 331– 32 (Brennan , J ., dissenting); see also St. Am ant v. Benoit, 80 6 F.2d 1294, 1297 (5th Cir. 1987) (citing J ustice Brennan’s statem ent of the sum m ary judgm ent standard in Celotex Corp. v. Catrett, 477 U.S. 317, 322– 24 (1986), and requirin g the m ovants to subm it affirm ative evidence to negate an essential elem ent of the nonm ovant’s claim or, alternatively, dem onstrate the nonm ovant’s evidence is insufficient to establish an essential elem ent); Fano v. O’N eill, 80 6 F.2d 1262, 1266 (citing J ustice Bren nan’s dissent in Celotex, and requiring the m ovant to m ake an affirm ative presentation to n egate the non m ovant’s claim s on sum m ary judgm ent); 10 A CHARLES ALAN W RIGHT, ARTHUR R. M ILLER & M ARY KAY KANE , F EDERAL P RACTICE AND P ROCEDURE §2727.1 (20 16) (“Although the Court issued a five-to-four decision , the m ajority 3 nonm oving party cannot m uster sufficient eviden ce to dispute the m ovant’s contention that there are no disputed facts, a trial would be useless, and the m oving party is entitled to sum m ary judgm ent as a m atter of law. 22 When, however, the m ovant is proceeding under the second option and is seeking sum m ary judgm ent on the ground that the nonm ovant has no evidence to establish an essential elem ent of the claim , the nonm oving party m ay defeat a m otion for sum m ary judgm ent by “calling the Court’s attention to supporting eviden ce already in the record that was overlooked or ignored by the m oving party.”23 Under either scenario, the burden then shifts back to the m ovant to dem onstrate the inadequacy of the evidence relied upon by the nonm ovant. 24 If the m ovant m eets this burden, “the burden of production shifts [back again] to the nonm oving party, who m ust either (1) rehabilitate the evidence attacked in the m oving party’s papers, (2) produce additional eviden ce showing the existence of a genuin e issue for trial as provided in Rule 56(e), or (3) subm it an affidavit explaining why further discovery is necessary as provided in Rule 56(f).”25 “Sum m ary judgm ent should be granted if the nonm oving party fails to respond in one or m ore of these ways, or if, after the nonm oving party responds, the court determ ines that the m oving party has m et its ultim ate burden of persuading the court that there is no genuine issue of m aterial fact for trial.”26 “[U]nsubstantiated assertions are not com petent sum m ary judgm ent evidence. The party opposing sum m ary judgm ent is required to identify specific evidence in the and dissent both agreed as to how the sum m ary-judgm ent burden of proof operates; they disagreed as to how the standard was applied to the facts of the case.” (internal citations om itted)). 22 First N ational Bank of Arizona v. Cities Service Co., 391 U.S. 253, 28 8– 89 (1980 ); Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 249– 50 (1986). 23 Celotex, 477 U.S. at 332– 33. 24 Id. 25 Celotex, 477 U.S. at 332– 33, 333 n.3. 26 Id.; see also First N ational Bank of Arizona, 391 U.S at 289. 4 record and to articulate the precise m anner in which that evidence supports the claim . ‘Rule 56 does not im pose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to sum m ary judgm ent.’”27 II. Qualified Im m unity “The doctrine of qualified im m unity shields ‘governm ent officials perform ing discretionary functions …from liability for civil dam ages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’”28 Although qualified im m unity is nom inally an affirm ative defense, “the plaintiff has the burden to negate the defen se once properly raised.”29 The defendant official m ust initially plead his good faith and establish that he was acting within the scope of his discretionary authority. Once the defendant has done so, the burden shifts to the plaintiff to rebut this defense by establishing that the official’s allegedly wrongful conduct violated clearly established law. 30 In resolving questions of qualified im m unity at the sum m ary judgm ent stage, courts engage in a two-pronged inquiry. 31 “The court m ust decide whether the plaintiff has alleged a violation of a constitutional right and whether that right was ‘clearly established’ at the tim e of the incident.”32 27 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998 ) (citin g Celotex, 477 U.S. at 324; Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) an d quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 90 9, 915– 16 & n .7 (5th Cir. 1992)). 28 Luna v. Mullenix, 773 F.3d 712, 718 (5th Cir. 20 14) (quoting Harlow v. Fitzgerald, 457 U.S. 80 0 , 818 (1982)). 29 Brum field, 551 F.3d at 326. See also Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 20 0 9) (citing Pearson v. Callahan, 555 U.S. 223, 231 (20 0 9)). 30 Id. (quoting Bazan ex rel. Bazan v. Hidalgo Cnty ., 246 F.3d 866, 872 (5th Cir. 1997) (“We do not require that an official dem onstrate that he did not violate clearly established federal rights; our precedent places that burden upon plaintiffs.”)). 31 See Tolan v. Cotton, 134 S. Ct. 18 61, 18 65 (20 14). 32 Orr v. Copeland, 844 F.3d 484, 492 (5th Cir. 20 16). 5 “[A] plaintiff seeking to overcom e qualified im m unity m ust plead specific facts that both allow the court to draw the reasonable inference that the defendant is liable for the harm [the plaintiff] has alleged and that defeat a qualified im m unity with equal specificity.”33 “Therefore, even where the qualified im m unity defense is raised by m otion for sum m ary judgm ent, the Court ‘must first determ ine whether the allegations in [the] com plaint are sufficient to negate [the] assertions of qualified im m unity.’” 34 This “dem an ds m ore than bald allegations and conclusory statem ents.” 35 A plaintiff “m ust allege facts specifically focusing on the conduct of [the defendant] which caused his injury.”36 “The qualified im m unity defen se is appropriately resolved at the sum m ary judgm ent stage when (1) a plaintiff has established that the defendant has engaged in the com plained-of conduct or (2) the court ‘skip[s], for the m om ent, over … still-contested m atters to consider an issue that would m oot their effect if proved.’”37 “If resolution of [qualified im m unity] in the sum m ary judgm ent proceeding turns on what the defendant actually did, rather than on whether the defendant is im m unized from liability …, and if there are conflicting versions of his con duct, one of which would establish and the other defeat liability,” then sum m ary judgm ent is not appropriate. 38 Although sum m ary judgm ent ultim ately may be appropriate based on a plaintiff’s inability to prove the facts essential to recovery, this “has nothing to do with the qualified im m unity defense.”39 33 Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 20 12). Hatcher v. Bem ent, 20 15 WL 151110 6, at *7 (N.D. Tex. Apr. 3, 20 15) (quotin g Flem ing v. Tunica, 497 F. App’x 381, 38 8 (5th Cir. 20 12) (alterations in original). 35 Id. (quotin g W icks v. Miss. State Em ploy m ent Servs., 41 F.3d 991, 995 (5th Cir. 1995)). 36 W icks, 41 F.3d at 995. 37 Hatcher, 20 15 WL 151110 6, at *7 (quotin g Harlow v . Fitzgerald, 457 U.S. 80 0 , 818 (198 2) and citing Haverda v. Hay s County , 723 F.3d 586, 599 (5th Cir. 20 13)) (alterations in original). 38 Haverda, 723 F.3d at 599 (quoting Barker v. N orm an, 651 F.2d 110 7, 1123-24 (5th Cir. 1981)). 39 Id. 34 6 “One of the m ost salient benefits of qualified im m unity is protection from pretrial discovery, which is costly, tim e-consum ing, and intrusive.” 40 Consequently, the Fifth Circuit “has established a careful procedure under which a district court m ay defer its qualified im m unity ruling if further factual developm ent is n ecessary to ascertain the availability of that defense.”41 The Fifth Circuit has explained that “a district court m ust first find ‘that the plaintiff’s pleadings assert facts which, if true, would overcom e the defense of qualified im m unity.” 42 “Thus, a plaintiff seeking to overcom e qualified im m unity m ust plead specific facts that both allow the court to draw the reasonable inference that the defendant is liable for the harm he has alleged and that defeat a qualified im m unity defense with equal specificity.”43 “After the district court finds the plaintiff has so pled, if the court rem ains ‘unable to rule on the im m unity defense without further clarification of the facts,’ it m ay issue a discovery order ‘narrowly tailored to uncover only those facts needed to rule on the im m unity claim .’”44 The Fifth Circuit has further explained that “[a]n order that sim ultaneously withholds ruling on a qualified im m unity defense while failing to constrain discovery to develop claim ed im m unity is by definition not narrowly tailored.”45 LAW AN D AN ALYSIS Plaintiff filed the instant suit in form a pauperis seeking relief from the Defendants under 42 U.S.C. § 1983 for violations of the Eighth Am endm ent’s prohibition of cruel and unusual punishm ents. 40 Plaintiff sued Defendants Secretary J am es LeBlanc, Warden Backe, 691 F.3d at 648 (citing Helton v. Clem ents, 787 F.2d 10 16, 10 17 (5th Cir. 1986). 41 Id. 42 Id. (citations om itted). Id. 44 Id. (quotin g Lion Boulos v. W ilson, 834 F.2d 50 4, 50 7-0 8 (5th Cir. 1987). 45 Id. at 649. 43 7 Robert Tanner, Lt. Shane Ladner, and Corrections Sergeant Master Bradley Pierce, in their in dividual capacities pursuant to 42 U.S.C. § 1983 for violations of his Eighth Am endm ent rights. Plaintiff alleges the Defendants violated his right to reasonably safe conditions of confin em ent when the Defendants provided other inm ates with unsupervised access to tools which could be used as dangerous weapons. In resolving questions of qualified im m unity at the sum m ary judgm ent stage, courts engage in a two-pronged inquiry. 46 “The court m ust decide whether the plaintiff has alleged a violation of a constitutional right and whether that right was ‘clearly established’ at the tim e of the incident.”47 The court m ay address the questions in either order. 48 The Court will first address the second prong: whether the right that was allegedly violated was clearly established at the tim e of the incident. The Suprem e Court has “’repeatedly told courts . . . not to define clearly established law at a high level of generality.’” 49 At the sam e tim e, “this does n ot m ean that ‘a case directly on point’ is required.”50 Rather, “clearly established” m eans that the “contours of the right m ust be sufficiently clear that a reasonable officer would understand that what he was doing violates that right.” 51 In Farm er, the Suprem e Court explained that the Eighth Am endm ent “im poses duties on [prison] officials, who m ust provide hum ane conditions of confinem ent; prison officials m ust ensure that inm ates receive adequate food, clothing, 46 See Tolan v. Cotton, 134 S. Ct. 18 61, 18 65 (20 14). Orr v. Copeland, 844 F.3d 484, 492 (5th Cir. 20 16). 48 Pearson, 555 U.S. at 227. 49 Morgan v. Sw anson, 659 F.3d 359, 372 (quotin g Ashcroft v. al-Kidd, --- U.S. ----, 131 S.Ct. 20 74, 20 84 (20 11)). 50 Id. (quotin g al-Kidd, 131 S.Ct. at 20 83). 51 Thom pson v. Upshur Cnty ., Texas, 245 F.3d 447, 457 (5th Cir. 20 0 1) (quoting Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 248 (198 6)). 47 8 shelter, an d m edical care, and m ust ‘take reasonable m easures to guarantee the safety of the inm ates.’”52 Further, “Several courts . . . have noted that the Eighth Am endm ent m ay be violated when prison officials perm it inm ate access to objects that could be used as weapons, especially when this conduct is accom panied by a lack of adequate supervision over the inm ates.”53 The Court finds that the Plaintiff’s Eighth Am endm ent right allegedly violated by the Defendants was clearly established at the tim e of the incident. With respect to the first prong of the qualified im m unity standard – i.e. whether the Defendants violated Plaintiff’s constitutional rights – the Suprem e Court has explain ed, “The Constitution ‘does not m andate com fortable prisons,’ but neither does it perm it inhum ane ones, and it is now settled that ‘the treatm ent a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Am endm ent.’”54 “In its prohibition of ‘cruel and unusual punishm ents,’ the Eighth Am endm ent places restraints on prison officials, who m ay not, for exam ple, use excessive physical force against prisoners.” 55 As explained above, the Eighth Am en dm ent also im poses a duty on prison officials to “take reasonable m easures to guarantee the safety of the inm ates.”56 To succeed on a claim for a failure to protect, an inm ate m ust show that (1) he was incarcerated under conditions posing a substantial risk of harm ; and (2) a prison official was deliberately in different to this risk. 57 “A prison official violates the Eighth Am en dm ent’s prohibition against cruel and unusual punishm ent when his 52 Farm er v . Brennan , 511 U.S. 8 25, 832 (1994) (quotin g Hudson v. Palm er, 468 U.S. 517, 526-27 (1984)). Iw anski v. Oklahm oa Dept. of Corrections, 1999 WL 1188 836, at *4 (10 th Cir. Dec. 14, 1999) (collecting cases). 54 Farm er, 511 U.S. at 832 (citations om itted). 55 Id. (citations om itted). 56 Id. (citations om itted). 57 Anderson v. W ilkinson, 440 F. App’x 379, 381 (5th Cir. 20 11) (citing Farm er v. Bren nan, 511 U.S. 8 25, 834 (1994)). 53 9 conduct dem onstrates deliberate indifference when he “knows of and disregards an excessive risk to inm ate health or safety.” 58 “To know of’ a risk, an official m ust be subjectively aware of the risk: that is, the official m ust both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he m ust also draw the inference.”59 “This issue is a question of fact.”60 “Finally, even if a prison official was subjectively aware of the risk, he m ay be found free from liability if he ‘responded reasonably to the risk, even if the harm ultim ately was n ot averted.”61 “The deliberate indifference standard is ‘an extrem ely high standard to m eet.’”62 The Fifth Circuit has “declin ed to find deliberate indifferen ce where an official ‘should have’ inferred a risk posed to an inm ate, requiring proof that the official, ‘did draw such an inference.”63 “Nevertheless, an inm ate does not have to produce direct eviden ce of an official’s knowledge about the risk; he m ay rely on circum stantial evidence to dem onstrate such knowledge.”64 Defendants argue the Plaintiff has not alleged a violation of a constitutional right because, as interpreted by the Defendants, “the plaintiff is alleging that giving tools to inm ates that could be used as weapons was a practice that created a dangerous condition.” 65 In addition, according to Defendants, the incident at issue was an unpreventable, isolated in cident and therefore, Plaintiff’s Eighth Am endm ent right to protection from inm ate-on-inm ate attacks was not violated. 66 In respon se, Plaintiff states 58 Id. (citing Farm er, 511 U.S. at 837). Id. (internal citations and quotations om itted). 60 Id. (quotin g Farm er, 511 U.S. at 837). 61 Id. (quotin g Farm er, 511 U.S. at 844). 62 Id. (quotin g Dom ino v. Tex. Dep’t of Crim inal Justice, 239 F.3d 752, 756 (5th Cir. 20 0 1)). 63 Id. (em phasis in original) (citations om itted). 64 Id. (citations om itted). 65 R. Doc. 51-2 at 10 . 66 Id. 59 10 that he is not claim ing that issuing tools to inm ates for work is unconstitutional. 67 Instead, Plaintiff argues that issuing tools that can be used as weapons to inm ates without direct supervision is dangerous. 68 In order to show a violation of his Eighth Am endm ent right, Plain tiff must first dem onstrate that he was incarcerated under conditions posing a substantial risk of serious harm . 69 “Whether a risk is substantial and the threatened harm is serious represents an objective test[.]”70 As explain ed above, “Several courts . . . have noted that the Eighth Am endm ent m ay be violated when prison officials perm it inm ate access to objects that could be used as weapons, especially when this conduct is accom panied by a lack of adequate supervision over the inm ates.”71 In addition, sim ilar to facts in Goka v. Bobbitt, “the risk to inm ate safety from m isuse of m aintenance and other tools as weapons is evident on the fact of the tool control policy[.]”72 Plaintiff attaches a copy of RCC’s Tool Control Policy to his opposition to the Defendants’ m otion for sum m ary judgm ent. 73 RCC’s Tool Control Policy, which has the stated purpose of establishing “procedures that will ensure adequate control of tools,” explicitly states that “[o]ffenders m ay only use certain tools,” referred to as “Restricted Tools”, “because of their potential security risk, within the fenced com pound under direct supervision of staff.” 74 RCC’s Tool Control Policy further defines restricted tools as “im plem ents that can be used to fabricate weapons, or that can be used as weapons; or that can be used to facilitate an escape.”75 67 R. Doc. 59 at 14. Id. 69 Anderson, 440 F. App’x at 381 (5th Cir. 20 11) (citin g Farm er, 511 U.S. at 834). 70 Hinojosa v. Livingston, 80 7 F.3d 657, 665 (5th Cir. 20 15) (citations om itted). 71 Iw anski, 1999 WL 1188 836, at *4 (collectin g cases). 72 862. F.2d 646, 652 (7th Cir. 198 8). 73 R. Doc. 59-3. 74 Id. at 1, 3 (em phasis added) 75 Id. at 3. 68 11 Although the Tool Control Policy does not include a sling blade in its non-exhaustive list of exam ples of restricted tools, the Court finds that it is clear the sling blade used in the assault at issue is a paradigm atic exam ple of a restricted tool pursuant to RCC’s own policy. As the sling blade at issue is clearly a restricted tool, RCC’s own policy m andates that inm ates only be allowed to use the tool when under direct supervision. Defendants argue that offenders working on the Wind Yard “are m onitored via video m onitors by the Unit Key Officer and Lieutenant using the cam era outside of the buildings” and “a Lieutenant and Unit Key Officer periodically m ake rounds on the yard to assess the status of all of the offenders including those working inside the buildings and outside on the yard.”76 The Plaintiff argues it is clear there was no direct supervision in this instance. First, Plaintiff points to the affidavit of Darryl Mizell, the Chief In vestigator for RCC,in which Mizell states there is no cam era surveillance m onitoring of the Wind recreational yard and that the surveillance cam eras in place are only intended to prevent any escape and therefore are only directed at the perim eter fence. 77 In addition, Defendants adm it that “After Sgt. Pierce issued the swing blade to offender Turner, he had no knowledge that offender Bernard Turner left his assignm ent or violated the prison disciplinary rules regarding the issued equipm ent.”78 Defendants also adm it it is undisputed that “[w]hile the swing blade was unattended on the yard, another offender picked it up and used it to attack the plaintiff.”79 76 R. Doc. 51-1 at ¶¶ 8-9. R. Doc. 59-14 at ¶ 8 (citing R. Doc. 51-4, at ¶¶ 20 -21). 78 R. Doc. 51-1 at ¶ 34. 79 Id. at ¶ 35. 77 12 Had there been direct supervision, as required by RCC’s own Tool Control Policy, there would not have been an opportunity for an inm ate to leave the swing blade unattended on the yard, leave the yard altogether, or for another inm ate to pick up the abandon ed tool and attack the Plaintiff. Since it is an undisputed that this occurred, the Court finds the prison did not follow its own policies with respect to the supervision of restricted tools and, thus, the Plaintiff has satisfied his burden in dem onstrating that he was incarcerated under conditions posing a substantial risk of serious harm . Second, in order to defeat Defendants’ m otion for sum m ary judgm ent on the basis of qualified im m unity, Plaintiff m ust dem onstrate that a genuine issue of m aterial fact exists as to the secon d elem ent of the failure to protect analysis – i.e. that the defendant prison officials were deliberately indifferent to his need for protection. 80 As explained above, a prison official is “deliberately indifferent” to a risk when he “knows of and disregards an excessive risk to inm ate health or safety.”81 An officer’s awaren ess of the risk is evaluated subjectively. 82 The Court m ust address this issue at it pertains to each individual defendant. Without allowing the Plaintiff to conduct discovery on this issue, the Court finds that it is unable to rule on whether each individual Defendant is entitled to im m unity. 83 Greater detail explaining how inm ates were ultim ately left unsupervised while in possession of restricted tools is needed for the Court to determ ine which, if any, Defendants, are entitled to qualified im m unity. To further elaborate on this point, it is apparent to the Court that there are at least three possible, and m utually-exclusive, explanations as to how and why this potential violation of the Plaintiff’s Eighth 80 N eals v. N orw ood, 59 F.3d 530 , 533 (5th Cir. 1995) (citations and internal quotation m arks om itted). 440 F. App’x at 381. 82 Longoria, 473 F.3d at 592-93. 83 See, e.g. Lion Boulos, 834 F.2d at 50 8. 81 Anderson, 13 Am endm ent rights occurred: (1) the RCC Tool Control Policy drafted by Warden Tanner which requires direct supervision when inm ates are issued restricted tools was never actually im plem ented; (2) the RCC Tool Control Policy was im plem ented but the prison officials responsible for actually effectuating the policy were never properly trained on how to com ply with the direct supervision requirem ents of the policy; an d (3) the RCC Tool Control Policy was im plem ented and, although the prison officials responsible were properly trained on how to effectuate the policy, they failed to do so. Determ ining which scenario led to the incident at issue in Plaintiff’s com plaint is a question of fact that can be resolved only with additional inform ation gained through discovery. 84 The Court finds this inform ation is essential to its determ ination of whether any of the Defendants is entitled to qualified im m unity. 85 It is uncontested that on August 27, 20 14, Defendant Pierce issued a swing blade to another inm ate, Bernard Turner, to cut grass in the Wind Yard. 86 It is also uncontested that the Plaintiff was hit from behind with the sling blade causing severe lacerations. 87 While these facts are not in dispute, due to the lack of relevant inform ation, inform ation that only the Defendants have access to, the Court is unable to identify which individuals engaged in the specific conduct leading to the lack of direct supervision of inm ates with access to restricted tools. 88 The Court is not able to ascertain whether, for exam ple, Defen dant Pierce neglected to follow proper procedure or whether another guard, who was assigned to the Wind Yard providing the necessary direct supervision, was not in his or her assigned location. Accordingly, the Court finds lim ited discovery regarding the roles of each of the Defen dants, the policies actually in 84 See Dy er v. City of M esquite, Texas, 20 17 WL 118 811, at *10 (N.D. Tex. J an. 12, 20 17). Id. 86 R. Doc. 51-1 at ¶ 30 ; R. Doc. 59-14 at ¶ 30 . 87 R. Doc. 51-1 at ¶ 36; R. Doc. 59-14 at ¶ 36. 88 See, e.g., Dy er, 20 17 WL 118811, at *10 . 85 14 place at the tim e of the incident regarding the issuance of restricted tools, the training provided, and other relevant inform ation related to the Defendants’ subjective knowledge of the risk is necessary to rule on the Defendants’ invocations of qualified im m unity. CON CLU SION For the foregoing reasons; IT IS ORD ERED that the parties shall m eet or confer before Mo n d ay, Octo be r 9 , 2 0 17 to discuss the scope, m ethod, and tim ing of the lim ited discovery necessary to address the Defendants’ invocation of qualified im m unity. If the parties reach agreem ent, they shall file a joint m otion with a proposed order on or before Tu e s d ay, Octo be r 10 , 2 0 17. If the parties do not tim ely file a joint m otion with an agreed upon proposed order, the Court shall hold a status conference on Frid ay, Octo be r 13 , 2 0 17 at 3 :0 0 p .m at which tim e the Court will determ in e the scope, m ethod, and tim ing of the lim ited discovery. IT IS FU RTH ER ORD ERED that the Defendants’ Motion for Sum m ary J udgm ent on the Basis on Qualified Im m unity 89 is D EN IED W ITH OU T PREJU D ICE, and m ay be refiled after the com pletion of the lim ited discovery ordered above. N e w Orle a n s , Lo u is ian a, th is 2 5th d ay o f Se p te m be r, 2 0 17. ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 89 R. Doc. 51. 15
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