Cortez v. City of Morgan City et al, No. 6:2017cv00857 - Document 45 (W.D. La. 2018)
Court Description: ORDER AND REASONS granting 26 Motion for Summary Judgment. FURTHER ORDERED that there be judgment in favor of Defendants and against Plaintiff Stephen Cortez. Signed by Judge Susie Morgan on 9/24/2018. (crt,Bunting, M) Modified on 9/24/2018 (Flores, T).
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Cortez v. City of Morgan City et al Doc. 45 U N ITED S TATES D ISTRICT COU RT W ESTERN D ISTRICT OF LOU ISIAN A STEPH EN CORTEZ, Pla in tiff CIVIL ACTION VERSU S N O. 17-8 57 CITY OF MORGAN CITY, ET AL., D e fe n d a n ts SECTION : “E” ( 4 ) ORD ER AN D REAS ON S Before the Court is a motion for sum m ary judgm ent filed by Defendants Sergeant Gary Keller, Sergeant J am es Mikeska, and the City of Morgan City. 1 Plaintiff Stephen Cortez opposes the m otion. 2 Defendants have filed a reply. 3 For the reasons that follow, the m otion for sum m ary judgm ent is GRAN TED . BACKGROU N D 4 On J une 29, 20 16, Plaintiff Stephen Cortez was arrested for driving while im paired, reckless operation of a m otor vehicle, and im proper lane usage and booked into the City of Morgan City J ail. 5 Because Plaintiff was unable to post his $ 62,0 0 0 bond, he rem ain ed in police custody from the date of his arrest until his release on J uly 8, 20 16. 6 After six days in custody, on J uly 5, 20 16, Plaintiff was alone in his cell 7 when he pointed a plastic spoon at Patrick Augmann, a fellow inm ate and jail trustee who was cleaning the cell block 1 R. Doc. 26. R. Doc. 36. 3 R. Doc. 37. 4 The factual background is derived from Plaintiff’s Com plaint, R. Doc. 1; the parties’ statem ents of m aterial fact, R. Docs. 26-10 , 35; an d video surveillance footage of the incident, R. Doc. 26-11 (m anual attachm ent). The Court construes all facts in the light m ost favorable to Plaintiff. Saucier v. Katz, 533 U.S. 194, 20 1 (20 0 1). 5 R. Doc. 1 at ¶ IV. 6 Id. at ¶ VII. 7 There is a factual dispute with respect to the size of the cell, but it is not m aterial to the Court’s decision. See R. Doc. 26-10 at ¶ 3 (allegin g the cell is 8x8 feet) and R. Doc. 35 (allegin g the cell is 10 x10 feet). 2 1 Dockets.Justia.com where Plaintiff was housed. 8 As Trustee Augm ann approached Plaintiff, Plaintiff began using vulgar language and threaten ing to kill Trustee Augm ann. 9 As Trustee Augm ann attem pted to calm Plaintiff, Plaintiff “began breaking the phone in his cell and attem pting to eat pieces of [it].”10 After attem pting to convince Plaintiff to stop breaking the phone, Trustee Augm ann left the block and reported the issue to Sergeant Keller. 11 Sergeant Keller consulted with Sergeant Mikeska and Officer Phillip Dural, and the three officers went to Plaintiff’s cell to assess the situation. 12 When Officer Dural and Sergeants Keller and Mikeska arrived, Plaintiff pointed the plastic spoon at the officers, threatenin g to kill them and yelling profanity. 13 The officers attem pted to disarm Plaintiff with verbal com m ands, 14 but Plaintiff continued to use profanity and “began growling like a dog.”15 “Due to Plaintiffs [sic] behavior, the officers intended to disarm Plaintiff, rem ove him from his cell and put him in the padded cell for the safety of him self, inm ates, an d staff m em bers.”16 When verbal com m ands failed, Officer Dural pointed a pepper gun at Plaintiff, ordering him to drop the spoon an d back away from the cell bars. 17 The officers decided 8 Trustee Augm ann and the Defendants refer to the object held by the Plaintiff as a shiv or a shan k, com m only understood to be a m akeshift weapon m ade out of a com m onplace object. 9 R. Doc. 26-10 at ¶ 5 (alleging Plaintiff pointed a “shiv” at Trustee Augm ann); R. Doc. 35 (denying Plaintiff pointed a shiv at Trustee Augm ann); R. Doc. 26-11 (showing Plaintiff pointed an object at Trustee Augm ann). The video does not clearly answer the question of whether the object was a shiv, as Defendants contend, or a plastic spoon, as Plaintiff contends. For purposes of this m otion, because the facts are construed in the m anner m ost favorable to the Plaintiff, the Court assum es the object was actually a plastic spoon. Saucier, 533 U.S. at 20 1. 10 R. Doc. 26-10 at ¶ 9; R. Doc. 35 at ¶ 9. 11 R. Doc. 26-10 at ¶ 12; R. Doc. 35 at ¶ 12. 12 R. Doc. 26-10 at ¶ 13; R. Doc. 35 at ¶ 13. 13 The R. Doc. 26-10 at ¶ 14 (describin g the object as a “shiv”); R. Doc. 35 at ¶ 13 (disputin g whether the object was a shiv, contending it was a plastic spoon). 14 R. Doc. 26-10 at ¶ 16; R. Doc. 35 at ¶ 16. 15 R. Doc. 26-10 at ¶ 17; R. Doc. 35 at ¶ 17. 16 R. Doc. 26-10 at ¶ 18; R. Doc. 35 at ¶ 18. 17 R. Doc. 26-10 at ¶ 19; R. Doc. 35 at ¶ 19. 2 not to use the pepper gun, fearing it m ight contam inate the entire cell block, 18 and it was determ ined that “[o]ther techniques could not be utilized to obtain com pliance in cluding a taser due to the am ount of m etal in the cell including bed fram es, sink and toilet on which [Plaintiff] could have injured his head.”19 After considering their options, the officers decided to use “soft hand techniques” to disarm Plaintiff and entered his cell. 20 Once in the cell, Sergeant Mikeska attem pted to take the spoon from Plaintiff, at which tim e Plaintiff m oved his hand away an d lunged at Sergeant Mikeska with the spoon. 21 Believing Sergeant Mikeska was in im m inent danger, Sergeant Keller punched Plaintiff in the face to prevent what he believed was deadly force, 22 while Sergeant Mikeska “grabbed [Plaintiff’s] other hand to try to bring him to the ground.”23 “[T]he blow . . . caused [Plaintiff] to relax enough such that [he] released the [spoon].”24 On ce Plaintiff released the spoon, the officers attem pted to place Plaintiff’s 18 R. Doc. 26-10 at ¶ 20 ; R. Doc. 35 at ¶ 20 . The Court notes Plaintiff disputes whether Sergeants Keller an d Mikeska were “qualified to give an opinion” on whether they could safely use the pepper gun , as “only Phillip Dural was certified with the pepper ball gun.” R. Doc. 35 at ¶ 20 . Plaintiff does not dispute that the officers did not use the gun, nor does Plaintiff dispute that th e officers were concerned about using the pepper gun out of fear of cross-contam ination. Id. 19 R. Doc. 26-10 at ¶ 21; R. Doc. 35 at ¶ 21. 20 R. Doc. 26-10 at ¶ 22; R. Doc. 35 at ¶ 22. 21 Plaintiff disputes whether he struck Sergeant Mikeska in the chest, pointin g to Sergeant Keller’s deposition testim ony, page 30 , lines 2– 8. This testim ony does not support Plain tiff’s contention, as this testim ony relates only to the initial charge filed against the Plaintiff. See R. Doc. 26-4 30 :2– 8. Later in Sergeant Keller’s deposition, he testifies that he, Officer Dural, and Sergeant Mikeska planned on goin g “in and just disarm [ing] [Plaintiff]. We were goin g to use soft hand techniques. That wasn’t goin g to be an issue until he lunged at Sergeant Mikeska w ith the shank. And at that tim e I felt it was im m in ent danger or lifethreatening if he hit [Sergeant] Mikeska in the chest with the shan k.” Id. at 37:1– 6 (em phasis added). 22 R. Doc. 26-10 at ¶ 26; R. Doc. 35 at ¶ 26. Plaintiff alleges Sergeant Keller punched him in the face while Sergeant Mikeska held him ; however, Plaintiff cites no evidence to substantiate this assertion , so the Court does not consider this fact genuinely disputed. See Ragas v. Tenn . Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (“[U]nsubstantiated assertions are not com petent sum m ary judgm ent evidence.”) (citing Celotex, 477 U.S. at 324)); see also id. (“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.” (quotin g Skotak v. Tenneco Resins, Inc., 953 F.2d 90 9, 915– 16 & n .7 (5th Cir. 1992))). 23 R. Doc. 26-2 at 30 :3– 9. 24 R. Doc. 26-10 at ¶ 27 (describing the object as a shiv); R. Doc. 35 at ¶ 27 (disputing whether the object was a shiv). 3 hands behin d his back. 25 Plaintiff struggled with the officers and attem pted to bite Sergeant Mikeska. 26 Plaintiff did not com ply with verbal com m ands to stop resisting, 27 and once handcuffed he refused to walk to the padded cell. 28 After the officers placed Plaintiff in a padded cell, they noticed a cut on Plaintiff’s nose and attem pted to clean the wound, 29 but Plaintiff “keep pulling his head away, refusing to allow the officers to clean [it].”30 After eventually cleaning the wound, the officers left Plaintiff in the padded cell and placed him on m edical observation. 31 Plaintiff rem ain ed in the padded cell under m edical observation for three days, until J uly 8, 20 16, when it was determ ined Plaintiff’s m ental state was not im proving, and he was brought to Teche Region al Medical Center. 32 Once the hospital personn el advised Sergeant Mikeska that Plaintiff would be adm itted for a psychiatric evaluation, Sergeant Mikeska requested J udge Kim Stansbury reduce Plaintiff’s bond and release him on his own recognizance, which request J udge Stansbury granted. 33 Plaintiff’s m edical records indicate he was adm itted for observation due to his altered m ental state, secondary to acute alcohol withdrawal, and a healing laceration around the bridge of his nose. 34 25 R. Doc. 26-10 at ¶ 28– 30 ; R. Doc. 35 at ¶ 28– 30 . R. Doc. 26-10 at ¶ 31; R. Doc. 35 at ¶ 31. 27 R. Doc. 26-10 at ¶ 32; R. Doc. 35 at ¶ 32. 28 R. Doc. 26-10 at ¶ 36 (stating he refused to walk and was “flailin g his legs”); R. Doc. 35 at ¶ 36 (disputin g whether Plaintiff’s legs were flailin g). 29 R. Doc. 26-10 at ¶ 37; R. Doc. 35 at ¶ 37. 30 R. Doc. 26-10 at ¶ 38; R. Doc. 35 at ¶ 38. 31 R. Doc. 26-10 at ¶ 42; R. Doc. 35 at ¶ 42. 32 R. Doc. 26-10 at ¶ 60 ; R. Doc. 35 at ¶ 60 . 33 R. Doc. 26-10 at ¶¶ 62, 63; R. Doc. 35 at ¶¶ 62, 63. 34 R. Doc. 26-10 at ¶ 66 (citin g R. Doc. 26-8 at 19); R. Doc. 35 at ¶ 66. Plaintiff disputes this fact, citin g to his m edical records. A review of the records reveals, however, confirm s the accuracy of Defendants’ assertion. The m edical records describe the injury as “a scratch on his nose with som e erythem a.” R. Doc. 26-8 at 19. As a result, the Court does not consider this fact to be genuin ely disputed. See Ragas, 136 F.3d at 458. 26 4 Plaintiff alleges he has no m em ory from J uly 5, 20 16 through J uly 10 , 20 16 when he becam e aware he was in the intensive care ward of Teche Region al Medical Center. 35 Based on these events, Plaintiff brings four claim s against Defendants: (1) A Fourteenth Am endm ent claim for excessive force, pursuant to 42 U.S.C. § 1983, against Sergeants Mikeska and Keller in their personal capacities; (2) A Fourteenth Am endm ent claim for deliberate indifference to his severe m edical needs, pursuant to 42 U.S.C. § 1983, against Sergeants Mikeska and Keller in their personal capacities; (3) A Monell claim , 36 pursuant to 42 U.S.C. § 1983, against the City of Morgan City for failure to train; and (4) A Monell claim , pursuant to 42 U.S.C. § 1983, against the City of Morgan City, alleging the City has a policy of releasing inm ates from custody before bringing them to the hospital for treatm ent. On August 6, 20 18, Defendants filed the instant m otion, asserting a qualified im m unity defense and seeking judgm ent as a m atter of law on Plaintiffs’ claim s against them . 37 Plaintiff filed his opposition on August 29, 20 18. 38 Defendants filed a reply on Septem ber 12, 20 18. 39 SU MMARY JU D GMEN T STAN D ARD Sum m ary judgm ent is proper only “if the m ovant shows that there is no genuine dispute as to any m aterial fact an d the m ovant is entitled to judgm ent as a m atter of law.”40 “An issue is m aterial if its resolution could affect the outcom e of the action.”41 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrain[s] from m aking credibility determ inations or weighing 35 Id. at ¶ VIII. Monell v. N ew York City Dept. of Social Servs, 436 U.S. 658 (1978). 37 R. Doc. 26. 38 R. Doc. 32. Plaintiff’s opposition, although tim ely, was deficient. R. Doc. 34. Plain tiff filed an am ended opposition on Septem ber 10 , 20 18. R. Docs. 35, 36. It is this version of Plaintiffs’ opposition the Court considers. 39 R. Doc. 37. 40 F ED . R. CIV. P. 56; see also Celotex, 477 U.S. at 322– 23. 41 DIR ECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 36 5 the eviden ce.”42 All reasonable inferences are drawn in favor of the non-m oving party. 43 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the non-m 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. 44 Governm ent officials m ay assert a qualified im m unity defense in a Rule 56 m otion for sum m ary judgm en t. Once a defendant asserts qualified im m unity as a defense, the plaintiff bears the burden of dem onstrating the defendant is not entitled to its protections. 45 The qualified im m unity defense serves to shield governm ent officials, sued in their individual capacities and perform ing discretion ary 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.”46 “A court required to rule upon the qualified im m unity issue m ust [first] consider” whether, taken in the light m ost favorable to the plaintiff, “the facts alleged show the officer’s conduct violated a constitutional right.”47 “If no constitutional right would have been violated were the allegations established, there is no n ecessity for further inquiries concern ing qualified im m unity.”48 If the complaint m akes out a constitutional violation, the Court then m ust determ ine whether that constitutional right was clearly established at the tim e the violation occurred. 49 To be “clearly established” for the purpose of qualified im m unity, 42 Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398– 99 (5th Cir. 20 0 8); see also Reeves v. Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 43 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 44 Hibernia N at. Bank v. Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citin g Am oco Prod. Co. v. Horw ell Energy , Inc., 969 F.2d 146, 147– 48 (5th Cir. 1992)). 45 W hitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 20 13). 46 Kinney v. W eaver, 367 F.3d 337, 349 (5th Cir. 20 0 4). 47 Saucier v. Katz, 533 U.S. 194, 20 1 (20 0 1). 48 Id. 49 Id. 6 “[t]he contours of the right m ust be sufficiently clear that a reasonable official would understand that what he is doing violates that right.”50 Qualified im m unity attaches when an official’s conduct “‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’”51 For a right to be clearly established, “‘existing precedent m ust have placed the statutory or constitutional question beyond debate.’”52 “[T]he contours of the right m ust be sufficiently clear that a reasonable official would understand that what he is doing violates that right.”53 “Officials should receive the protection of qualified im m unity ‘unless the law is clear in the m ore particularized sen se that reasonable officials should be put on notice that their conduct is unlawful.’”54 “In other words, im m unity protects ‘all but the plainly in com petent or those who knowingly violate the law.’”55 “The court’s focus, for purposes of the ‘clearly established’ an alysis should be on ‘fair warning’: qualified im m unity is unavailable ‘despite notable factual distinctions between the precedents relied on an d the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.’”56 LAW AN D AN ALYSIS In resolving questions of qualified im m unity at the sum m ary judgm ent stage, courts engage in a two-part inquiry. 57 The threshold issue is whether, “[t]aken in the light m ost favorable to the party asserting the injury . . . the officer’s conduct violated a 50 Anderson v. Creighton, 48 3 U.S. 635, 640 (1987). W hite v. Pauly , 137 S. Ct. 548, 549 (20 17) (quoting Mullenix v. Luna, 136 S. Ct. 30 5, 30 8 (20 15) (per curiam )). 52 Id. 53 W ern ecke v. Garcia, 591 F.3d 386, 392 (5th Cir. 20 0 9) (quotin g Anderson, 483 U.S. at 640 ). 54 Id. at 393 (quotin g Kinney , 367 F.3d at 350 ). 55 W hite, 137 S. Ct. at 549. 56 W ern ecke, 591 F.3d at 392 (5th Cir. 20 0 9) (quoting Hope v. Pelzer, 536 U.S. 730 , 740 (20 0 2)). 57 Tolan v. Cotton, 134 S. Ct. 1861, 1865 (20 14). 51 7 [constitutional] right.”58 “If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concern ing qualified im m unity.”59 Plaintiff brings two § 1983 claim s against Sergeants Mikeska and Keller in their personal capacities, as well as two Monell claim s again st the City of Morgan City. The Court analyzes each in turn. Ultim ately, the Court concludes Defendants are entitled to qualified im m unity and grants judgm ent in their favor. I. Pla in tiff’s Fo u rth Am e n d m e n t Cla im Plaintiff first alleges Sergeants Mikeska and Keller violated his constitutional right to be free from excessive force when Sergeant Keller struck Plaintiff in the face, rather than using a less violent m eans of restrain in g him . According to Plaintiff, the officers should have used the pepper gun, as “[t]his option would have elim inated the n eed for hard hand strike to [his] head.”60 Defendants seek sum m ary judgm ent on this claim , arguing their actions were objectively reason able. When a plaintiff alleges excessive force while awaiting trial in police custody, the federal right at issue arises from the Due Process Clause of the Fourteenth Am endm ent. 61 “[W]hen a court is called upon to exam ine the am ount of force used on a pretrial detainee[] for the purpose of institutional security, the appropriate analysis is . . . ‘whether force was applied in a good faith effort to m aintain or restore discipline, or m aliciously and sadistically for the very purpose of causing harm .’”62 In judging the reason ableness of an officer’s actions, a court m ust consider: “the relationship between the need for the use of force an d the am ount of force used; the extent of the plaintiff's injury; any effort 58 Saucier, 533 U.S. at 20 1. Id. 60 R. Doc. 36 at 4. 61 Valencia v. W iggins, 981 F.2d 1440 , 1445 (5th Cir. 1993). 62 Id. at 1446 (quotin g Hudson v. McMillian, 50 3 U.S. 1, 6 (1992)). 59 8 m ade by the officer to tem per or to lim it the am ount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.”63 Whether an officer’s use of force was objectively reasonable turns on the facts an d circum stances of each particular case. 64 “A court m ust m ake this determ ination from the perspective of a reasonable officer on the scene, including what the officer knew at the tim e, not with the 20 / 20 vision of hindsight.”65 A court m ust also defer to “policies and practices that in th[e] judgm ent” of jail officials “are needed to preserve internal order and discipline an d to m aintain in stitutional security” and consider the “legitim ate interests that stem from [the governm ent's] need to m anage the facility in which the individual is detained.”66 Only if the Court determ ines the officers’ conduct violated the Fourteenth Am endm ent m ust it then consider whether “the right in question was ‘clearly established’ at the tim e of the violation.”67 In this case, it is undisputed that Plaintiff was behaving erratically and threatened to stab and kill a fellow inm ate, 68 and began breaking things in his cell. 69 Although it is disputed whether Plaintiff was holding a plastic spoon or a shiv, it is undisputed that once the officer Defendants arrived, Plaintiff began to threatening to stab the officers with the object. 70 It is undisputed that Defendants attem pted to disarm Plaintiff using verbal 63 Id. (citing Graham , 490 U.S. at 396). Kingsley v. Hendrick, 135 S. Ct. 2466, 2473 (20 15) (quotin g Graham v. Conn or, 490 U.S. 386, 396 (1989)). 65 Id. 66 Bell v. W olfish, 441 U.S. 520 , 540 (1979). 67 Hope v. Pelzer, 536 U.S. 730 , 739 (20 0 2). 68 R. Doc. 26-10 at ¶ 17; R. Doc. 35 at ¶ 17. 69 R. Doc. 26-10 at ¶ 9; R. Doc. 35 at ¶ 9. 70 R. Doc. 26-10 at ¶ 14 (describing the object as a “shiv”); R. Doc. 35 at ¶ 13 (disputing whether the object was a shiv, contendin g it was a plastic spoon). 64 9 com m ands, 71 and that when verbal com m an ds did not work, the officers threatened to use a pepper gun. 72 It is undisputed that, because Plaintiff did not com ply with the officers’ com m ands using these techniques, and it was determ in ed other techn iques would pose a danger to Plaintiff, 73 the officers decided to enter Plaintiff’s cell in order to disarm him . 74 When the officers entered Plaintiff’s cell, it is undisputed Plaintiff lunged at Sergeant Mikeska. 75 In response to this, Sergeant Keller punched Plaintiff in the face, and Plaintiff dropped the object he was holding. Based on the facts that are not in dispute, the Court finds Sergeants Mikeska and Keller’s actions were objectively reason able. The am ount of force Sergeant Keller used to prevent Plaintiff from striking Sergeant Mikeska in the chest was m inim al. He struck the Plaintiff only once and with his hand. According to Plaintiff’s m edical records, the Plaintiff sustained only a superficial injury to the bridge of his nose as a result of Sergeant Keller’s actions. The officers attem pted less intrusive m ean s of gaining Plaintiff’s com pliance before resorting to physical force. Even assum ing that in reality Plaintiff had only a plastic spoon, without the benefit of 20 / 20 hindsight, a reasonable officer could have believed Plaintiff was brandishing a shiv; thus, Sergeant Keller reason ably perceived Plaintiff posed a significant threat to Sergeant Mikeska and respon ded accordingly. 76 Based on the record before the Court, Defendants’ use of force “was applied in a good faith effort to m aintain or restore discipline.”77 In light of these circum stances, Defendants are entitled 71 R. Doc. 26-10 at ¶ 16; R. Doc. 35 at ¶ 16. R. Doc. 26-10 at ¶ 19; R. Doc. 35 at ¶ 19. 73 R. Doc. 26-10 at ¶ 21; R. Doc. 35 at ¶ 21. 74 R. Doc. 26-10 at ¶ 22; R. Doc. 35 at ¶ 22. 75 Plaintiff disputes whether he struck Sergeant Mikeska in the chest. See Note 21. 76 Id. (citing Graham , 490 U.S. at 396). 77 Valencia, 981 F.2d at 1445. 72 10 to qualified im m unity. As a result, the Court grants Defendants sum m ary judgm ent on this claim . II. Pla in tiffs ’ Fo u rte e n th Am e n d m e n t Cla im Plaintiff next contends Defendants acted with deliberate in differen ce when they confined him in a padded cell for three days before taking him to the hospital. 78 Defendants argue they are entitled to sum m ary judgm ent on this claim , as “the evidence in this m atter clearly establishes the officers were not deliberately indifferent to [Plaintiff’s] m edical treatm ent and when, in their opinion, he n eeded m edical attention, [Plaintiff] was brought to the hospital.”79 The Court agrees. It is well-settled that “a state official’s episodic act or om ission violates a pretrial detainee’s due process rights to m edical care [and protection from harm ] if the official acts with subjective deliberate in difference to the detain ee’s rights.”80 To dem onstrate deliberate indifference, a plaintiff m ust present evidence: “(1) that each defendant had subjective knowledge of facts from which an inference of substantial risk of serious harm could be drawn, (2) that each defendant actually drew that inference; an d (3) that each defendant’s response to the risk indicates that the [defendant] subjectively intended that harm occur.”81 Deliberate indifference cannot be inferred m erely from a negligent, or even a grossly negligent response to a substantial risk of serious harm . 82 “Deliberate indifference is an extrem ely high stan dard to m eet.”83 78 R. Doc. 36 at 3. R. Doc. 26-1 at 23. 80 Jacobs v. W . Feliciana Sheriff’s Dep’t, 228 F.3d 388, 393 (5th Cir. 20 0 0 ) (quotin g N erren v. Livingston Police Dep’t, 86 F.3d 469, 473 (5th Cir. 1996)). 81 Tam ez v. Manthey, 589 F.3d 764, 770 , (5th Cir. 20 0 9). 82 Estate of Allison v. W ansley , 524 F. App’x 963, 970 (5th Cir. 20 13) (citin g Hare v. City of Corinth, 74 F.3d 633, 645, 649– 50 (5th Cir.1996) (en banc) (citations om itted)). 83 Id. (citing Dom ino v. Tex. Dep’t of Crim inal Justice, 239 F.3d 752, 756 (5th Cir. 20 0 1)). 79 11 In this case, Plaintiff has failed to offer any evidence to substantiate his claim of deliberate indifference. In opposition to Defendants’ assertion that they are entitled to qualified im m unity, Plaintiff m erely states, “The facts indicate that from 5J UL16 through 8 J UL16 [Plaintiff] was kept in the padded cell without any m edical evaluation.”84 It is undisputed, however, that while Plaintiff was in the padded cell, he was under m edical observation. 85 Moreover, Plaintiff does not dispute that, once the jail staff determ ined Plaintiff’s condition was not im proving, Sergeant Mikeska took Plaintiff to the hospital. 86 Even assum ing the officers should have known sooner than three days that Plaintiff required m ore significant m edical treatm ent, “the failure to alleviate a significant risk that [the officer] should have perceived, but did not[,] is insufficient to show deliberate indifference.”87 As a result, the Court concludes Plaintiff has failed to carry his sum m ary judgm ent burden of dem onstrating Defendan ts are not entitled to qualified im m unity and grants sum m ary judgm ent in favor of Defendants as to this claim . III. Pla in tiff’s M o n e ll Cla im s Plaintiff brings two Monell claims against the City of Morgan City; one for an alleged failure to properly train its officers and one alleging the City has a pattern or practice of discharging detainees once they are admitted into the hospital to avoid paying for the detainees’ medical costs. With respect to the first Monell claim, that the City has failed to properly train its officers, Plaintiff does not identify any area of Sergeants Mikeska and Keller’s training he contends was insufficient or improper, nor has he offered any argum ent addressing how 84 R. Doc. R. Doc. 26-10 at ¶ 42; R. Doc. 35 at ¶ 42. 86 R. Doc. 26-10 at ¶ 60 ; R. Doc. 35 at ¶ 60 . 87 Dom ino v. Tex. Dep’t of Crim . Justice, 239 F.3d 752, 756 (5th Cir. 20 0 1) (citations om itted). 85 12 such alleged inadequate training represents a City policy, how the City was deliberately indifferent, or how this alleged policy was the moving force behind his alleged injury. With respect to Plaintiff’s second Monell claim, Plaintiff does not allege the City has a policy of not providing inmates with medical care; rather, he alleges the City has a policy of releasing inm ates from custody to avoid paying for m edical care. Neither in his com plaint, nor on summary judgment, has Plaintiff alleged how such alleged custom/ policy is in violation of any constitutional right. Municipal liability under § 1983 has three elements: (1) a policy maker, (2) an official policy, and (3) “a violation of constitutional rights whose ‘moving force’ is the policy or custom.”88 Having found no underlying constitutional violation in this case, the Court dismisses Plaintiff’s Monell claim. “If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the department regulations might have authorized the [alleged violation] is quite beside the point.”89 CON CLU SION IT IS ORD ERED that the m otion for summ ary judgm ent filed by Defendants Sergeant Gary Keller, Sergeant J am es Mikeska, and the City of Morgan City be an d hereby is GRAN TED . 90 IT IS FU RTH ER ORD ERED that there be judgm ent in favor of Defendants an d against Plaintiff Stephen Cortez. N e w Orle an s , Lo u is ian a, th is 2 4 th d a y o f Se p te m be r, 2 0 18 . ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT JU D GE 88 89 90 Piotrow ski v. City of Houst., 237 F.3d 567, 578 (5th Cir. 20 0 1). City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986). R. Doc. 26. 13
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