# Disedare v. Brumfield

> District Court, E.D. Louisiana · March 13, 2024

URL: https://www.frixlaw.com/law-library/cases/10190582

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** March 13, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10190582

## How later opinions describe it (automated extraction)

- finding “the record suggests that at least some officers involved in Taylor’s ordeal were deliberately indifferent to the conditions of his cells” when “upon placing Taylor in the second cell, an[] officer told Taylor he hoped Taylor would ‘f***ing freeze’”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CLYDE DISEDARE, CIVIL DOCKET
Plaintiff
VERSUS NO. 22-2680
SGT. COLTER BRUMFIELD, ET AL., SECTION: “E” (2)
Defendants
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment filed by Defendants Colter
Brumfield, Randall Williams, Darryl Mizell, Kevin Luper, and the State of Louisiana. 1
Plaintiff opposed. 2 Defendants replied. 3 For the reasons that follow, the motion is
GRANTED IN PART and DENIED IN PART.
BACKGROUND
Plaintiff Clyde Disedare is incarcerated at Rayburn Correctional Center (“RCC”),4
where he was held at all times relevant to this action.5 Defendants in this case are state
correctional officers Brumfield, Williams, Mizell, and Luper (collectively, the “Defendant

officers”), and the State of Louisiana through the Louisiana Department of Public Safety and
Corrections (the “DPSC”).6 Plaintiff alleges that over a four-day period in March 2021, the
Defendant officers, suspecting Plaintiff had stored contraband in his rectum, repeatedly
ordered him to ingest laxatives, perform bowel movements in full restraints, submit to strip

1 R. Doc. 54. The Court dismissed claims against Defendant Miley Adams from this case without prejudice on
December 19, 2022. R. Doc. 13. The Court dismissed claims against Defendant Major Brian Brumfield from
this case without prejudice on May 18, 2023. R. Doc. 36.
2 R. Doc. 69.
3 R. Doc. 75.
4 R. Doc. 1-1 at p. 1.
5 Id. at pp. 2–3.
6 Id.
searches, and undergo x-rays.7 No contraband was found.8 Plaintiff originally sued in
Louisiana state court on July 6, 2022, bringing claims under 42 U.S.C. § 1983 (“Section
1983”) and Louisiana state law.9 Under Section 1983, Plaintiff alleges the Defendant officers
violated the Eighth Amendment’s prohibition of cruel and unusual punishments by housing
him in unconstitutionally unsanitary conditions of confinement,10 exercising excessive force
by corporal punishment,11 and breaching their duty to protect.12 Under Louisiana state law,
Plaintiff asserts claims of negligence against the Defendant officers and respondeat superior
against the DPSC for the alleged tortious acts committed by its employees, the Defendant

officers.13
On August 16, 2022, Defendants removed the case to this Court from the 22nd Judicial
District Court for the Parish of Washington in the State of Louisiana.14 On July 21, 2023,
Defendants filed their motion for summary judgment.15 In the motion, Defendants move this
Court for summary judgment “on the grounds that Defendants are entitled to Qualified
Immunity and Plaintiff’s [Section] 1983 claims of cruel and unusual punishment, failure to
protect, and State law claims of battery and negligence against [the Defendant officers], as
well as the State law claims of respondeat superior against DPSC, cannot be supported.”16

7 Id.
8 Id. at pp. 8–9.
9 Id. at p. 1.
10 Specifically, Plaintiff alleges “[h]e had no hygiene, no shower and he had to eat with unclean hands and an
open five gallon bucket of human wa[s]te[] within three (3) feet of his dry cell.” Id. at p. 9.
11 Specifically, Plaintiff alleges he “was escorted back to the Sun Unit in shower sandals and full restraints
causing injury to his ankles and toes” and “[u]se of the dry cell, scans and multiple body scans, search[es],
laxatives and denial of medical care was cruel and unusual punishment.” Id. at pp. 7, 9.
12 Specifically, Plaintiff alleges Defendant officers “st[ood] by and allow[ed] the violation of rights/failure to
protect.” Id. at p. 10.
13 Id. at p. 11.
14 R. Doc. 1.
15 R. Doc. 54.
16 R. Doc. 54-1 at p. 1.
LEGAL STANDARDS
I. Summary Judgment
Under Rule 56 of the Federal Rules of Civil Procedure, “[a] party may move for
summary judgment, identifying each claim or defense—or the part of each claim or defense—
on which summary judgment is sought.”17 Summary judgment is appropriate only “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.”18 Indeed, “[i]f the moving party fails to meet this
initial burden, the motion must be denied, regardless of the nonmovant’s response.”19 “An

issue is material if its resolution could affect the outcome of the action.”20 When assessing
whether a material factual dispute exists, the Court considers “all of the evidence in the
record but refrains from making credibility determinations or weighing the evidence.”21 All
reasonable inferences are drawn in favor of the nonmoving party.22 There is no genuine issue
of material fact if, even viewing the evidence in the light most favorable to the nonmoving
party, no reasonable trier of fact could find for the nonmoving party, thus entitling the
moving party to judgment as a matter of law.23
If the dispositive issue is one on which the moving party will bear the burden of
persuasion at trial, the moving party “must come forward with evidence which would ‘entitle
it to a directed verdict if the evidence went uncontroverted at trial.’”24 Pursuant to Rule

17 FED. R. CIV. P. 56(a).
18 FED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
19 Kee v. City of Rowlett, 247 F.3d 206, 210 (5th Cir. 2001) (quoting Tubacex, Inc. v. M/V Risan, 45 F.3d 951,
954 (5th Cir. 1995)).
20 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
21 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008); see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
22 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
23 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).
24 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)).
56(c), the party asserting a fact cannot be or is genuinely disputed must provide support for
the assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.25

“The court need consider only the cited materials.”26 If the moving party fails to carry this
burden, the motion must be denied. If the moving party successfully carries this burden, the
burden of production then shifts to the nonmoving party to direct the Court’s attention to
something in the pleadings or other evidence in the record setting forth specific facts
sufficient to establish a genuine issue of material fact does indeed exist.27
If the dispositive issue is one on which the nonmoving party will bear the burden of
persuasion at trial, the moving party may satisfy its burden of production by either (1)
submitting affirmative evidence that negates an essential element of the nonmovant’s claim,
or (2) demonstrating there is no evidence in the record to establish an essential element of
the nonmovant’s claim.28 When proceeding under the first option, if the nonmoving party
cannot muster sufficient evidence to dispute the movant’s contention that there are no
disputed facts, a trial would be useless, and the moving party is entitled to summary

25 FED. R. CIV. P. 56(c).
26 FED. R. CIV. P. 56(c)(3).
27 Celotex, 477 U.S. at 322–24.
28 Id. at 331–32 (Brennan, J., dissenting); see also St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir. 1987)
(citing Justice Brennan’s statement of the summary judgment standard in Celotex, 477 U.S. at 329–35 and
requiring the movants to submit affirmative evidence to negate an essential element of the nonmovant’s claim
or, alternatively, demonstrate the nonmovant’s evidence is insufficient to establish an essential element); Fano
v. O’Neill, 806 F.2d 1262, 1266 (5th Cir. 1987) (citing Justice Brennan’s dissent in Celotex, and requiring the
movant to make an affirmative presentation to negate the nonmovant’s claims on summary judgment); 10A
CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FED. PRAC. AND PROC. §2727.1 (2016) (“Although
the Court issued a five-to-four decision, the majority and dissent both agreed as to how the summary-judgment
burden of proof operates; they disagreed as to how the standard was applied to the facts of the case.” (internal
citations omitted)).
judgment as a matter of law.29 When, however, the movant is proceeding under the second
option and is seeking summary judgment on the ground that the nonmovant has no evidence
to establish an essential element of the claim, the nonmoving party may defeat a motion for
summary judgment by “calling the Court’s attention to supporting evidence already in the
record that was overlooked or ignored by the moving party.”30 Under either scenario, the
burden then shifts back to the movant to demonstrate the inadequacy of the evidence relied
upon by the nonmovant.31 If the movant meets this burden, “the burden of production shifts
[back again] to the nonmoving party, who must either (1) rehabilitate the evidence attacked

in the moving party’s papers, (2) produce additional evidence showing the existence of a
genuine issue for trial as provided in Rule 56(e), or (3) submit an affidavit explaining why
further discovery is necessary as provided in Rule 56(f).”32 “Summary judgment should be
granted if the nonmoving party fails to respond in one or more of these ways, or if, after the
nonmoving party responds, the court determines that the moving party has met its ultimate
burden of persuading the court that there is no genuine issue of material fact for trial.”33
“[U]nsubstantiated assertions are not competent summary judgment evidence.”34
“The party opposing summary judgment is required to identify specific evidence in the
record and to articulate the precise manner in which that evidence supports the claim.”35
“‘Rule 56 does not impose upon the district court a duty to sift through the record in search
of evidence to support a party’s opposition to summary judgment.’”36 The party opposing

29 First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288–89 (1980); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249–50 (1986).
30 Celotex, 477 U.S. at 332–33.
31 Id.
32 Id. at 332–33, 333 n.3.
33 Id.; see also First Nat’l Bank, 391 U.S at 289.
34 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324).
35 Id. (citing Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)).
36 Id. (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915–16 & n.7 (5th Cir. 1992)).
summary judgment, however, “need not respond to it with affidavits or other evidence
‘unless and until the movant has properly carried its burden.’”37
II. Summary Judgment on Qualified Immunity Claims
The doctrine of qualified immunity operates “to ensure that before they are subjected
to suit, officers are on notice their conduct is unlawful.”38 Thus, qualified immunity “shields
‘government officials performing discretionary functions . . . from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.’”39 “In resolving questions of qualified

immunity at the summary judgment stage, courts engage in a two-pronged inquiry.”40 “The
first asks whether the facts, taken in the light most favorable to the party asserting the injury,
show the officer’s conduct violated a federal right.”41 “The second prong of the qualified-
immunity analysis asks whether the right in question was ‘clearly established’ at the time of
the violation.”42 Courts may address the questions in either order.43
Concerning the first prong of the qualified immunity analysis, the defense is
“appropriately resolved at the summary judgment stage when (1) a plaintiff has established
that the defendant has engaged in the complained-of conduct or (2) the court ‘skip[s], for
the moment, over . . . still-contested matters to consider an issue that would moot their
effect if proved.’”44 “If resolution of [qualified immunity] in the summary judgment
proceeding turns on what the defendant actually did, rather than on whether the defendant

37 Leyman Mfg. Corp. v. U.S., 8 Cl. Ct. 535, 544 (Cl. Ct. 1985) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144,
160 (1970)).
38 Saucier v. Katz, 533 U.S. 194, 206 (2001).
39 Luna v. Mullenix, 773 F.3d 712, 718 (5th Cir. 2014) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
40 See Tolan v. Cotton, 572 U.S. 650, 655 (2014).
41 Id. at 655–56.
42 Id. at 656.
43 Pearson v. Callahan, 555 U.S. 223, 227 (2009).
44 Hatcher v. Bement, 14-432, 2015 WL 1511106, at *7 (N.D. Tex. Apr. 3, 2015) (quoting Harlow, 457 U.S. at
818; citing Haverda v. Hays County, 723 F.3d 586, 599 (5th Cir. 2013)) (alterations in original).
is immunized from liability . . ., and if there are conflicting versions of his conduct, one of
which would establish and the other defeat liability,” then summary judgment is not
appropriate.45 Although summary judgment ultimately may be appropriate based on a
plaintiff’s inability to prove the facts essential to recovery, this “has nothing to do with the
qualified immunity defense.”46
Thus, “a plaintiff seeking to overcome qualified immunity must 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 [] defeat a qualified immunity with equal specificity.”47

“Therefore, even where the qualified immunity defense is raised by motion for summary
judgment, the Court ‘must first determine whether the allegations in [the] complaint are
sufficient to negate [the] assertions of qualified immunity.’”48 This “demands more than bald
allegations and conclusory statements.”49 A plaintiff “must allege facts specifically focusing
on the conduct of [the defendant] which caused his injury.”50
With respect to the second prong of the qualified immunity analysis, the U.S.
Supreme Court has “‘repeatedly told courts . . . not to define clearly established law at a high
level of generality.’”51 At the same time, “this does not mean that ‘a case directly on point’ is
required.”52 Rather, “clearly established” means that the “contours of the right must be
sufficiently clear that a reasonable officer would understand that what he was doing violates

45 Haverda, 723 F.3d at 599 (quoting Barker v. Norman, 651 F.2d 1107, 1123–24 (5th Cir. 1981)).
46 Id.
47 Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012).
48 Hatcher, 2015 WL 1511106, at *7 (quoting Fleming v. Tunica, 497 F. App’x 381, 388 (5th Cir. 2012)
(alterations in original)).
49 Id. (quoting Wicks v. Miss. State Employment Servs., 41 F.3d 991, 995 (5th Cir. 1995)).
50 Wicks, 41 F.3d at 995.
51 Morgan v. Swanson, 659 F.3d 359, 372 (5th Cir. 2011) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742
(2011)).
52 Id. (quoting al-Kidd, 563 U.S. at 741–42).
that right.”53 “This is not to say that an official action is protected by qualified immunity
unless the very action in question has previously been held unlawful, but it is to say that in
the light of pre-existing law the unlawfulness must be apparent.”54 “[O]fficials can still be on
notice that their conduct violates established law even in novel factual circumstances.”55
“Although earlier cases involving ‘fundamentally similar’ facts can provide especially strong
support for a conclusion that the law is clearly established, they are not necessary to such a
finding.”56 The Supreme Court recently clarified that “‘in an obvious case,’ general standards
‘can clearly establish the answer, even without a body of relevant case law.’”57 “[F]or the

obvious-case exception, there are two necessary conditions: (1) ‘particularly egregious facts’
and (2) ‘no evidence’ that the official's actions ‘were compelled by necessity or exigency.’”58
LAW AND ANALYSIS
Plaintiff sued the Defendant officers, in their individual capacities, asserting claims
arising out of federal and state law and sued the DPSC asserting a claim under state law.59
Plaintiff alleges the Defendant officers’ conduct “was inhumane, bizarre, obscene, extreme
and outrageous”60 and that the officers “acted in a manner that was in wanton or reckless
disregard or with malice or willfulness to cause injury and violate constitutional rights.”61
Specifically, Plaintiff’s federal claim under Section 1983 alleges the Defendant officers

53 Thompson v. Upshur Cnty., Texas, 245 F.3d 447, 457 (5th Cir. 2001) (quoting Anderson v. Liberty Lobby,
477 U.S. at 248).
54 Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citing Mitchell v. Forsyth, 472 U.S. 511, 535 n.12 (1985)).
55 Hope v. Pelzer, 536 U.S. 730, 741 (2002).
56 Id.
57 Roque v. Harvel, 993 F.3d 325, 335 (5th Cir. 2021) (citing Brosseau v. Haugen, 543 U.S. 194, 199 (2004);
Taylor v. Riojas, 592 U.S. 7 (2020) (per curiam)).
58 McMurry v. Brunner, 21-50888, 2022 WL 17493708, at *8 (5th Cir. 12/7/22) (Oldham, J., concurring)
(citing Taylor v. Riojas, 592 U.S. 7).
59 R. Doc. 1-1 at p. 1.
60 Id. at p. 10.
61 Id.
violated his Eighth Amendment rights.62 Plaintiff’s claims under Louisiana state law allege
negligence against the Defendant officers and respondeat superior against the DPSC.63
In their motion for summary judgment, Defendants argue they “are entitled to
Qualified Immunity and Plaintiff’s [Section] 1983 claims of cruel and unusual punishment,
failure to protect, and State law claims of battery and negligence against [the officers], as
well as the State law claims of respondeat superior against DPSC, cannot be supported.”64
I. Section 1983 claims must be predicated on an underlying constitutional
or statutory violation.

Section 1983 “is not itself a source of substantive rights, but merely provides a method
for vindicating federal rights elsewhere conferred.”65 Because Section 1983 only provides a
remedy for designated rights, “an underlying constitutional or statutory violation is a
predicate to liability.”66
“The Eighth Amendment, which applies to the States through the Due Process Clause
of the Fourteenth Amendment, prohibits the infliction of ‘cruel and unusual punishments’
on those convicted of crimes.”67 The provision is applicable to “some deprivations that [a]re
not specifically part of the sentence but [a]re suffered during imprisonment,”68 and
embodies “broad and idealistic concepts of dignity, civilized standards, humanity, and
decency,” against which courts evaluate penal measures.69 Courts have long “held repugnant
to the Eighth Amendment punishments which are incompatible with ‘the evolving standards

62 Id.
63 Id. at p. 11.
64 R. Doc. 54-1 at p.1.
65 Graham v. Connor, 490 U.S. 386, 393–94 (1989).
66 Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997) (citation omitted).
67 Wilson v. Seiter, 501 U.S. 294, 297 (1991) (citing Robinson v. California, 370 U.S. 660, 666 (1962)).
68 Id.
69 See Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quoting Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968));
see also Trop v. Dulles, 356 U.S. 86, 100 (1958) (“The basic concept underlying the Eighth Amendment is
nothing less than the dignity of man.”).
of decency that mark the progress of a maturing society,’”70 and those “which involve the
unnecessary and wanton infliction of pain.”71
The United States Supreme Court and the Fifth Circuit have recognized inmates’
claims against prison officials arising under the Eighth Amendment’s “cruel and unusual
punishments clause” for, inter alia: (1) “deliberate indifference to serious medical needs of
prisoners”;72 (2) excessive force or “unnecessary and wanton infliction of pain”;73 (3) breach
of “duty to protect prisoners from violence at the hands of other prisoners”;74 (4) “bystander
liability” when one officer witnesses a fellow officer violating a prisoner’s constitutional

rights;75 and (5) housing prisoners in “deplorably unsanitary conditions” of confinement.76
The analysis of Plaintiff’s Section 1983 claims “begins by identifying the specific
constitutional right allegedly infringed.”77 “The validity of the claim must then be judged by
reference to the specific constitutional standard which governs that right,” rather than to a
generalized standard.78 In this case, Plaintiff’s claims are based on alleged violations of his
Eighth Amendment rights. Specifically, Plaintiff alleges the Defendant officers violated his
Eighth Amendment rights against cruel and unusual punishments by housing him in
unconstitutionally unsanitary conditions of confinement,79 asserting excessive force by
corporal punishment,80 and breaching their duty to protect him from fellow officers (i.e.,

70 Estelle, 429 U.S. at 102–03 (citing Trop, 356 U.S. at 101; Gregg v. Georgia, 428 U.S. 153, 172–173 (1976);
Weems v. United States, 217 U.S. 349, 378 (1910)).
71 Id. at 103 (citing Gregg, 428 U.S. at 173; Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947);
Wilkerson v. Utah, 99 U.S. 130, 136 (1879)).
72 See id. at 104.
73 See Whitley v. Albers, 475 U.S. 312, 319 (1986).
74 See Farmer v. Brennan, 511 U.S. 825, 833 (1994) (citations omitted).
75 See Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013).
76 See Taylor v. Riojas, 592 U.S. at 8–9.
77 Graham, 490 U.S. at 394.
78 Id.
79 Specifically, Plaintiff alleges “[h]e had no hygiene, no shower and he had to eat with unclean hands and an
open five gallon bucket of human wa[s]te[] within three (3) feet of his dry cell.” R. Doc. 1-1 at p. 9.
80 Specifically, Plaintiff alleges the “[u]se of the dry cell, scans and multiple body scans, search[es], laxatives
and denial of medical care was cruel and unusual punishment.” Id.
bystander liability).81 In their motion for summary judgment, the Defendant officers argue
they “are each individually entitled to qualified immunity” from Plaintiff’s Eighth
Amendment claims, related to Plaintiff’s allegations that “the Defendants subjected him to
cruel and unusual punishment,” which they describe specifically as “fail[ure] to protect him
from other officer’s acts or omissions [bystander liability], and use[] [of] excessive force
against him.”82
A. The Defendant officers did not move for summary judgment on
Plaintiff’s claim based on unconstitutionally unsanitary
conditions of confinement.

The Eighth Amendment “imposes duties on [prison] officials, who must provide
humane conditions of confinement; prison officials must ensure that inmates receive
adequate food, clothing, shelter, and medical care, and must ‘take reasonable measures to
guarantee the safety of the inmates.’”83 While the Eighth Amendment protects the safety and
wellbeing of convicted prisoners, it “does not mandate comfortable prisons, but neither does
it permit inhumane ones.”84 Indeed, it is well established that prison officials cannot deprive
prisoners of the “basic elements of hygiene” or the “minimal civilized measure of life’s
necessities.”85 “[U]nsanitary conditions in a prison cell can, in certain circumstances, rise to
the level of cruel and unusual punishment.”86 While “[a] dirty cell does not automatically
violate the Constitution,”87 courts have held “filthy, unsanitary” cells can violate the Eighth
Amendment.88

81 Specifically, Plaintiff alleges Defendant officers “st[ood] by and allow[ed] the violation of rights/failure to
protect.” Id. at p. 10.
82 R. Doc. 54-1 at p. 22.
83 Farmer, 511 U.S. at 832 (quoting Hudson v. Palmer, 468 U.S. 517, 526–27 (1984)).
84 Id.
85 Palmer v. Johnson, 193 F.3d 346, 352–53 (5th Cir. 1999).
86 Hope v. Harris, 861 Fed. App’x 571, 584 (5th Cir. 2021).
87 Taylor v. Stevens, 946 F.3d 211, 220 (5th Cir. 2019), overruled by Taylor v. Riojas, 592 U.S. 7 (2020).
88 Harper v. Showers, 174 F.3d 716, 720 (5th Cir. 1999); see also Hutto v. Finney, 437 U.S. 678, 686–87 (1978)
(“A filthy, overcrowded cell . . . might be tolerable for a few days and intolerably cruel for weeks or months.”).
Plaintiff cites Taylor v. Riojas, a recent Supreme Court opinion on conditions of
confinement, which Plaintiff contends establishes the clearly established constitutional right
violated by his four-day confinement in the unsanitary dry cell.89 Rather than challenging
Plaintiff’s version of the facts related to his conditions of confinement claim, Defendants’
reply merely attacks Plaintiff’s reliance on Taylor v. Riojas by attempting to distinguish
Taylor from the instant case on its facts.90 Defendants simply argue, “[h]aving to sleep on a
mat on top of a dirty rack is not comparable to the facts in Tayl[o]r,” without any discussion
of the other, more deplorably unsanitary, conditions of Plaintiff’s confinement.91

In his petition, Plaintiff claims the conditions of his four-day confinement in the dry
cell deprived him of adequate sanitation and personal hygiene in violation of the Eighth
Amendment’s proscription of “cruel and unusual punishment.”92 Specifically, Plaintiff
claims “he was not allowed any hygiene” and contends his requests “to take a shower or wash
his hands” were denied while confined to the dry cell.93 Consequently, Plaintiff attests, “he
had to eat with unclean hands [near] an open five gallon bucket of human [waste].”94
Concerning the unsanitary conditions of the dry cell, Plaintiff further claims “he [w]as given
a thick mat, a turtle blanket, no pillow and told to just lay the mat over the dried blood on
the rack.”95
In Plaintiff’s sworn declaration, he declares he had no access to “any hygiene,
toothbrush, toothpaste, or soap,” “was not allowed to shower,” and “was told [he] could not

89 R. Doc. 69 at pp. 7–8 (citing Taylor v. Riojas, 592 U.S. 7 (2020)). “No reasonable correctional officer could
have concluded that under the circumstances to house T[a]ylor in such conditions was constitutionally
permissible. The same is true of the multiple searches and dry cell procedure used in this case.” Id.
90 R. Doc. 75 at p. 5.
91 Id.
92 R. Doc. 1-1 at p. 10.
93 Id. at p. 6.
94 Id. at p. 9.
95 Id. at p. 6.
wash his hands” during the four-day period of his confinement in the dry cell.96 Plaintiff
contends the unavailability of cleaning supplies was particularly unsanitary in light of the
fact that after completing a bowel movement, he was only allowed “to wipe himself with his
hands in cuffs[,] . . . which was messy to say the least.”97 With no ability to wash his hands,
Plaintiff declares he “had to eat with unclean hands [near] an open bucket of human waste
in front of [the] cell.”98 Plaintiff further declares he was directed to lay atop a mat covering
“dried blood on the rack.”99
Plaintiff clearly identifies his Eighth Amendment claim as a conditions of

confinement claim; Defendants’ motion requests summary judgment only “on the grounds
that [they] are entitled to Qualified Immunity and Plaintiff’s [Section] 1983 claims of cruel
and unusual punishment [and] failure to protect . . . cannot be supported.”100 Defendants
motion for summary judgment on claims, in general, of cruel and unusual punishment is not
sufficient to be a motion for summary judgment on Plaintiff’s claim of cruel and unusual
punishment based on his unconstitutionally unsanitary conditions of confinement claim.101
Qualified immunity is an affirmative defense that must be raised by the defendant.102
Defendants who file a motion for summary judgment based on qualified immunity to a
Section 1983 claim must follow the requirements of Rule 56 just as any other movant
would.103 Under Rule 56, “[a] party may move for summary judgment, identifying each claim

96 R. Doc. 69-5 at pp. 6–8.
97 R. Doc. 69 at p. 13.
98 R. Doc. 69-5 at p. 8 (“There was a bigger mess than normal due to ankles being cuffed. I could not position
my feet and legs in my natural, normal position. I was told I could not wash my hands with soap and water
while in ‘Dry Cell #1.’ Yet I still had to eat with unclean hands and open bucket of human waste in front of
cell.”).
99 Id. at p. 6 (“I was told to just lay the mat down over the dried blood, drops and smear.”).
100 R. Doc. 54-1 at p.1.
101 See R. Doc. 54-1.
102 Gomez v. Toledo, 446 U.S. 635, 636 (1980).
103 FED. R. CIV. P. 56; see also Adelsheimer v. Carroll Cnty., 639 F. Supp. 3d 699, 703 (N.D. Miss. 2022) (“[I]t
is clear that, in choosing to file a summary judgment motion, defendants were required to follow the
requirements of the Federal Rules of Civil Procedure relating to such motions.”).
or defense—or the part of each claim or defense—on which summary judgment is sought.”104
Interpreting Rule 56, the Fifth Circuit has stated that “[i]n order to determine whether
summary judgment is proper, it is first necessary to analyze the legal result sought to be
compelled.”105 “Only by analyzing the legal result can [the Court] determine what facts must
be established and whether those facts are in genuine dispute.”106 Indeed, the party seeking
summary judgment always bears the initial burden of informing the court of the legal basis
of its motion and identifying the specific portions of the pleadings or filings it believes
demonstrate the absence of any genuine issue of material fact.107 “[T]he substantive law will

identify which facts are material” and relevant to the motion for summary judgment.108 This
is as true in a Section 1983 case as in any other case.109
Defendants do not identify Plaintiff’s conditions of confinement as a claim on which
they are seeking summary judgment. Defendants do not include any facts related to this
claim in their Statement of Uncontested Facts.110 Nor do they argue they are entitled to
judgment as a matter of law on this claim. Instead, the Defendants ignore this specific claim
and speak broadly of cruel and unusual punishment. This approach is contrary to the
Supreme Court’s direction that the analysis must begin by identifying the specific
constitutional right at issue. Defendants failed to move the Court for summary judgment on
the issue of qualified immunity as it relates specifically to Plaintiff’s Eighth Amendment
conditions of confinement claim. As a result, the question of whether qualified immunity

104 FED. R. CIV. P. 56(a).
105 Irwin v. United States, 558 F.2d 249, 251 (5th Cir. 1977).
106 Id.
107 Celotex, 477 U.S. at 323; see also Coleman v. Town of Brookside, 637 F. Supp. 3d 1290, 1295 (N.D. Ala.
2022) (“The party asking for summary judgment always bears the initial responsibility of informing the court
of the basis for its motion and identifying those portions of the pleadings or filings which it believes
demonstrate the absence of a genuine issue of material fact.” (citing Celotex, 477 U.S. at 323)).
108 Anderson v. Liberty Lobby, 477 U.S. at 247.
109 See Tolan v. Cotton, 572 U.S. 650 (2014).
110 See R. Doc. 54-14.
shields the Defendant officers from liability on the conditions of confinement claim is not
even before the Court. Absent such a motion, and an accompanying statement of undisputed
material facts, with record citations, Defendants cannot possibly have demonstrated that no
material facts are in dispute or that as a result they are entitled to judgment as a matter of
law on that claim.111
Defendants’ mere conclusory assertion that “Plaintiff was not subjected to Cruel and
Unusual Punishment”112 does not satisfy their initial burden under Rule 56(c). Rule 56(c)
requires a party asserting that a fact is not in dispute to support that assertion by “citing to

particular parts of materials in the record” or “showing that the materials cited do not
establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.”113 “The moving party bears the burden of
showing the district court that there is an absence of evidence to support the nonmoving
party's case.”114 The Court cannot simply take Defendants’ word for it.115
The fact that Defendants are moving for summary judgment on a qualified immunity
defense does not entitle them to more lenient standards when asserting a motion for
summary judgment than those required by Rule 56.116 The party seeking summary judgment
“always bears the initial responsibility of informing the district court of the basis for its
motion, and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, which it believes

111 See R. Doc. 54-1.
112 Id. at p. 13.
113 Fed. R. Civ. P. 56(c)(1).
114 Kee, 247 F.3d at 210 (citing Celotex, 477 U.S. at 325).
115 See Adelsheimer, 639 F. Supp. 3d at 703 (“Rule 56(c) required defendants to cite ‘to particular parts of
materials in the record, including depositions, documents’ or other admissible summary judgment evidence.
This court cannot simply take their word for it.”).
116 See Tolan, 572 U.S. at 660; see also Adelsheimer, 639 F. Supp. 3d at 703 (“[T]his court emphasizes that the
mere fact that a defendant is asserting a qualified immunity defense entitles him to no more lenient standards
when asserting a summary judgment motion under Rule 56.”).
demonstrate the absence of a genuine issue of material fact.”117 “[T]here is no separate Rule
56 for qualified immunity defendants” in Section 1983 cases.118 Courts are required “to view
the evidence at summary judgment in the light most favorable to [the plaintiff] with respect
to the central facts of th[e] case.”119 In this case, Defendants included no statements of
undisputed material fact relating to Plaintiff’s unsanitary conditions of confinement claim;
the Court must consider the facts alleged by Plaintiff as true.
The Supreme Court reversed a lower court’s granting of summary judgment on a
Section 1983 claim involving officer misconduct when the officers failed to include

statements of undisputed material fact that addressed all facts that were material to the
claim.120 In Adickes v. S.H. Kress & Co., a white school teacher sued the owner of a restaurant
for denying her service and subsequently conspiring with law enforcement to arrest her.121
The Supreme Court ultimately found the defendant “failed to fulfill its initial burden of
demonstrating what is a critical element . . . of the case,” when affidavits of the officers
involved in the Section 1983 claim failed to “foreclose the possibility” that they were present
in the store while the plaintiff was there and that they communicated with restaurant staff
to influence the decision to not serve her.122 “Given these unexplained gaps in the materials
submitted” by the defendant, the Court determined the defendant did not refute material
facts offered by the plaintiff and reversed the lower court’s granting of summary judgment.123

117 Celotex, 477 U.S. at 323 (emphasis added).
118 Adelsheimer, 639 F. Supp. 3d at 703 (interpreting Tolan v. Cotton, 572 U.S. 650 (2014)).
119 Tolan, 572 U.S. at 657.
120 See Adickes, 398 U.S. 144 (1970).
121 Id. at 146.
122 Id. at 158 (citing FED. R. CIV. P. 56(c)).
123 Id. (quoting 6 J. MOORE, FED. PRAC. 56.22(2), at 2824–25 (2d ed. 1966) (“Yet the party moving for summary
judgment has the burden to show that he is entitled to judgment under established principles; and if he does
not discharge that burden then he is not entitled to judgment. No defense to an insufficient showing is
required.”)).
In their motion for summary judgment, Defendants do not even identify conditions
of confinement as a claim on which they are seeking summary judgment based on qualified
immunity. Defendants fail their initial burden of informing the Court of the legal basis of
their motion.124 The Defendants do not demonstrate the facts concerning the critical
elements of the claim are undisputed and that they are entitled to judgment as a matter of
law. As in the Adickes case, their affidavits do not foreclose the possibility that they were
involved in denying Plaintiff adequate sanitation and personal hygiene while he was
confined to the dry cell. As a result, Defendants failed to satisfy their initial burden under

Rule 56(c), which requires the moving parties to cite with specificity to materials in the
record that show the absence of a genuine dispute of material fact with respect to the claims
made by the Plaintiff.125 The Court cannot construe Defendants’ general invocation of
qualified immunity as encompassing Plaintiff’s unconstitutional conditions of confinement
claim. To do so would improperly “credit[] the evidence of the party seeking summary
judgment and fail[] properly to acknowledge key evidence offered by the party opposing that
motion.”126
Defendants’ Statement of Uncontested Facts does address the factual bases of the
claims based on excessive force and bystander liability, for which they also seek summary
judgment. This serves to point out Defendant officers’ failure to do so with respect to the
unsanitary conditions of confinement claim. 127 Rather, the only summary judgment

evidence offered by Defendants even remotely relevant to the conditions of confinement
claim is that “Plaintiff was offered liquids and a bathroom break every two hours and his cell

124 See Celotex, 477 U.S. at 323; see also Coleman, 637 F. Supp. 3d at 1295.
125 See FED. R. CIV. P. 56(c); Tolan, 572 U.S. at 657, 660; Adelsheimer, 639 F. Supp. 3d at 703.
126 See Tolan, 572 U.S. at 659.
127 See R. Doc. 54-14.
search was per policy” on March 17, 18, and 19, 2021.128 These facts, even if true, do not
establish that there are no disputed issues of material fact with respect to Plaintiff’s
unconstitutionally unsanitary conditions of confinement claim.
The Defendant officers are not entitled to summary judgment on their qualified
immunity defense against Plaintiff’s unconstitutional conditions of confinement claim.129
B. The Defendant officers are entitled to summary judgment on
Plaintiff’s excessive force claim.

In addition to unconstitutional conditions of confinement, the Eighth Amendment’s
prohibition of cruel and unusual punishment also protects individuals from “unnecessary
and wanton infliction of pain.”130 In determining whether specific conduct rises to the level
of “excessive physical force,” courts first evaluate whether the deprivation was objectively
serious in light of “contemporary standards of decency.”131 Next, courts consider whether the
officials acted with “a sufficiently culpable state of mind.”132 Generally, prison officials are
liable for an inmate’s claim of excessive force “[w]hen [they] maliciously and sadistically use
force to cause harm, [and thereby violate] contemporary standards of decency.”133 “This is
true whether or not significant injury is evident [because,] [o]therwise, the Eighth

128 Id. at pp. 3–5 (citing DPSC Unusual Occurrence Reports, March 16–19, 2021; R. Doc. 54-7 at pp. 4, 5, 7, 8,
10).
129 The Court refrains from determining the viability of Plaintiff’s unconstitutional conditions of confinement
claim, but observes Plaintiff identifies a clearly established constitutional right against “deplorably unsanitary
conditions [of confinement].” See Taylor v. Riojas, 592 U.S. at 8–9. Plaintiff further identifies a genuine issue
of material fact as to the Defendant officers’ deliberate indifference to his unconstitutional conditions of
confinement. Compare R. Doc. 69 at p. 12 (alleging Defendant Brumfield “escorted [Plaintiff] to Dry Cell #1
solitary confinement in the Sun Unit,” and callously stated to him: “I do not care if you push hard enough to
get hemorrhoids or even blow your asshole out. I don’t care, I do not care about you.”), with Taylor v. Riojas,
592 U.S. at 9 (finding “the record suggests that at least some officers involved in Taylor’s ordeal were
deliberately indifferent to the conditions of his cells” when “upon placing Taylor in the second cell, an[] officer
told Taylor he hoped Taylor would ‘f***ing freeze’”). However, because Defendants do not move for summary
judgment on this claim, the Court need not address the application of qualified immunity to the Defendant
officers, individually.
130 Ingraham v. Wright, 430 U.S. 651 (1977).
131 See Hudson v. McMillian, 503 U.S. 1, 7-8 (1992).
132 Id. at 8.
133 Id. at 9 (citing Whitley v. Albers, 475 U.S. at 327).
Amendment would permit any physical punishment, no matter how diabolic or inhuman,
inflicting less than some arbitrary quantity of injury.”134 While the Fifth Circuit requires an
injury to “be more than de minimis,” it “need not be significant.”135 However, “when
authorities use force to put down a prison disturbance,” the excessive force inquiry turns on
“‘whether force was applied in a good faith effort to maintain or restore discipline or
maliciously and sadistically for the very purpose of causing harm.’”136
In this case, Plaintiff claims certain conduct of the Defendant officers’ constituted
“corporal punishment[,] unnecessary[,] and/or excessive force” in violation of the Eighth

Amendment’s proscription of “cruel and unusual punishment.”137 Specifically, Plaintiff
claims the Defendant officers applied excessive force against him when they: (1) subjected
him to several body scans and conducted strip searches of him “solely to harass or to inflict
pain and suffering”;138 and (2) “forced [him] to walk with shackles too tight causing injury
to his feet” and “forced [him] to use laxatives to have bowel movement[s] in a bucket (5
times) with bloody rectum.”139
Unlike Plaintiff’s conditions of confinement claim, Defendants included in their
Statement of Uncontested Facts those that they believe foreclose the possibility they
exercised constitutionally impermissible excessive force on Plaintiff. Specifically, addressing
the factual allegations underlying Plaintiff’s excessive force claim, the Defendant officers

134 Id.
135 Gomez v. Chandler, 163 F.3d 921, 924 (5th Cir. 1999).
136 Hudson v. McMillian, 503 U.S. at 6 (quoting Whitley v. Albers, 475 U.S. at 320-21).
137 R. Doc. 1-1 at p. 10; R. Doc. 69 at pp. 29–30.
138 R. Doc. 69 at p. 5. In his petition, Plaintiff alleges Defendants subjected him to cruel and unusual
punishment when they forced him to walk “to the Sun Unit in shower sandals and full restraints causing injury
to his ankles and toes[,]” “[u]se[d] [] the dry cell, scans and multiple body scans, search[es], laxatives[,] and
deni[ed] [him] medical care.” R. Doc. 1-1 at pp. 7, 9.
139 R. Doc. 69 at p. 30. Plaintiff also attests “the dry cell is a corporal punishment chamber.” Id. at p. 29.
Specifically, Plaintiff claims the Defendant officers inflicted corporal punishment upon him by requiring he be
“[i]n full restraints while having bowel movements and refusing to [] allow[] [him] to wash his hands
[afterwards],” and “forc[ing] [him] to sleep on a bunk with dried blood present.” Id. These allegations are more
relevant to Plaintiff’s conditions of confinement claim and are, thus, discussed in that analysis.
represent: (1) they “scanned [Plaintiff] by the body scanner . . . due to reasonable suspicion
that [he] was in possession of contraband” and “conducted the visual body cavity search of
Plaintiff” under the same suspicion;140 (2) “Plaintiff was escorted to the A-Building Body
Scanner and [after he] was scanned[,] . . . was returned to his dry cell”;141 and (3) “[a]t no
time during their interactions with Plaintiff, did any of the individual Defendants ever order
Plaintiff to take a laxative or give him a laxative,” noting that “administering laxatives are
not part of the Dry Cell procedures.”142 Because Defendants satisfied their initial burden of
informing the Court of the legal basis of their motion under Rule 56(c) with respect to their

qualified immunity against Plaintiff’s excessive force claim,143 “the burden shifts to the
plaintiff to rebut this defense by establishing that the official’s allegedly wrongful conduct
violated clearly established law.”144
1. Plaintiff failed to identify a clearly established constitutional
right that protects him against the Defendant officers’ alleged
exercise of improper excessive force.

Plaintiff failed to satisfy his burden to overcome qualified immunity on his excessive
force claim because he did not identify a clearly established Eighth Amendment right that
protects him against the Defendant officers’ alleged exercise of improper force. In evaluating
Defendants’ assertion of qualified immunity against Plaintiff’s excessive force claim, the
Court first addresses the second prong of the inquiry, which asks “whether the right was
clearly established at the time of the violation.”145 As discussed, the relevant right may not

140 R. Doc. 54-14 at p. 2. In further support of their reasonable suspicion, Defendants claim it is undisputed
that “[a]fter Plaintiff was scanned, Defendant Williams could clearly see an object inside Plaintiff’s body.” Id.
141 Id. at p. 3.
142 Id. at p. 5.
143 R. Doc. 54-1 at p. 22. Defendant officers assert the qualified immunity defense against Plaintiff’s claim that
they “used excessive force against him when Plaintiff was put on dry cell restrictions, placed in the body
scanner, subjected him to searches, allegedly forced him to take laxatives, and denied him medical care.” Id.
144 Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008) (quoting Bazan ex rel. Bazan v. Hidalgo Cnty., 246
F.3d 866, 872 (5th Cir. 1997) (“We do not require that an official demonstrate that he did not violate clearly
established federal rights; our precedent places that burden upon plaintiffs.”)).
145 Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).
be defined at “a high level of generality.”146 Rather, “[t]he dispositive question is whether the
violative nature of a particular conduct is clearly established.”147 While a case directly on
point is not required, an evaluation of existing precedent must place the constitutional
question “beyond debate.”148 The “salient question,” therefore, is whether Defendants had
“fair warning” that their specific actions were unconstitutional.’”149 Plaintiffs’ excessive force
claim alleges the Defendant officers: (1) improperly conducted strip searches and body scans
to humiliate him; and (2) forced him to take laxatives and to walk with shackles, which
caused injuries to his rectum and to his feet and ankles, respectively.150 As discussed below,

under Fifth Circuit law, the Eighth Amendment does not protect Plaintiff against the
Defendant officers’ conduct underlying these claims of excessive force.
First, Plaintiff alleges Defendants conducted several body scans and strip searches
merely “to harass or to humiliate” him in violation of the Eighth Amendment.151 Specifically,
Plaintiff alleges the strip searches and body scans conducted by the Defendant officers, “who
seemed to think the matter was humorous,”152 “were calculated to humiliate [him] and had
no penological purpose.”153 Plaintiff cites Supreme Court cases Hudson v. Palmer and Bell
v. Wolfish, which he contends established his right against “searches conducted solely to
harass or to humiliate.”154 In their reply, Defendants argue Palmer and Bell do not establish

146 Morgan, 659 F.3d at 372 (quoting al-Kidd, 563 U.S. at 742).
147 Mullenix v. Luna, 577 U.S. 7, 10 (2015) (per curiam) (quotation marks omitted).
148 al-Kidd, 563 U.S. at 741.
149 Hope v. Pelzer, 536 U.S. at 731.
150 R. Doc. 69 at p. 5.
151 Id.; R. Doc. 1-1 at pp. 4–6.
152 R. Doc. 1-1 at p. 5.
153 R. Doc. 69 at p. 36.
154 Id. at p. 5 (first citing Hudson v. Palmer, 468 U.S. at 530 (“Calculated harassment unrelated to prison needs
is forbidden by the Constitution.” R. Doc. 69 at p. 33); then citing Bell v. Wolfish, 441 U.S. 520 (1979)). Plaintiff
also cites Oliver v. Scott for the proposition that the Fifth Circuit established a constitutional right to bodily
privacy for prisoners. Id. (citing Oliver v. Scott, 276 F.3d 736 (5th Cir. 2002)). In Oliver, the civil rights plaintiff
alleged prison employees violated “his rights to privacy, right to freedom from unreasonable search and
seizure, and right to equal protection under the Fourth and Fourteenth Amendments.” Oliver, 276 F.3d at 740.
Because the Plaintiff in this case alleged the Defendant officers violated only his Eighth Amendment rights,
a constitutional right against the officers’ alleged conduct because “Defendants’ actions here
were aimed at . . . seeking out and searching for potentially deadly contraband.” 155
Defendants claim that, under Bell, “visual body cavity searches are appropriate even when
devoid of probable cause when done in an effort to ensure security and order at the
institution,” and contend the officers reasonably believed Plaintiff was “in possession of
contraband.”156
This Court agrees with Defendants and finds Bell and Palmer do not establish a clear
constitutional right against excessive force that protects Plaintiff against the Defendant

officers’ allegedly improper strip searches and body scans. The Fifth Circuit has “refused to
extend the Eighth Amendment to strip searches.”157 Further, evaluating a strip and visual
body cavity search of an inmate under the Eighth Amendment in Parker v. Woods, the Fifth
Circuit held that prison officials did not violate an inmate’s constitutional rights when they
conducted a search to ensure the inmate did not conceal potentially dangerous items on or
in his body even when the inmate alleged the search was conducted in a “humiliating and
degrading manner.” 158 Accordingly, under Fifth Circuit law, Plaintiff has no Eighth
Amendment right against the strip searches or body scans underlying his excessive force
claim.
Second, Plaintiff alleges Defendants forced him to walk “1/4 mile back to the Sun Unit
in shower sandals and ankle cuffs that were too tight [and] very painful,” which caused

“[b]oth of his big toes and his ankles [to] bleed,”159 and “forced [him] to use laxatives to have

this Court will refrain from analyzing the merits of Plaintiff’s purported clearly established right to privacy
under the Fourth or Fourteenth Amendments. See R. Doc. 1-1 at p. 10.
155 R. Doc. 75 at p. 3.
156 Id. (citing Bell, 441 U.S. at 561).
157 Oliver, 276 F.3d at 743 n.9 (citing Moore v. Carwell, 168 F.3d 234, 237 (5th Cir. 1999)).
158 Parker v. Woods, 834 Fed. App’x 92, 95–97 (5th Cir. 2020).
159 R. Doc. 69 at p. 14; R. Doc. 1-1 at p. 7.
bowel movement[s] . . . with [a] bloody rectum.”160 Quoting Hudson v. McMillian, Plaintiff
contends “the use of excessive physical force against a prisoner may constitute cruel and
unusual punishment [even] when the inmate does not suffer serious injury.”161 Defendants
claim “Plaintiff did not suffer an injury greater than de minimis”162 and argue “if any force
was used on Plaintiff, it was applied in a good-faith effort to maintain and restore discipline
and was not used maliciously and sadistically to cause harm.”163 Defendants further contend
Plaintiff’s medical records “do not support that he was injured at all while he was assigned
to [the] dry cell.”164

The Court agrees with Defendants and finds that Hudson does not establish a clear
constitutional right against excessive force that protects Plaintiff from the type of physical
force allegedly asserted by the Defendant officers. In the Fifth Circuit “some physical injury
is an indispensable element” to sustain a claim of excessive force.165 While an injury “need
not be significant,” it must “be more than de minimis.”166 For example, the Fifth Circuit held
a prisoner did not raise a valid Eighth Amendment claim for excessive use of force because
his alleged injury of a “sore, bruised ear lasting for three days” after an officer twisted his ear
was not sufficiently extensive.167 Similarly, the court determined a detainee failed to
demonstrate “a legally cognizable injury” when he alleged “fleeting dizziness, temporary loss
of breath[,] and coughing” after an officer choked him.168 Further, the Fifth Circuit held that
a plaintiff’s alleged wrist injury after an “officer put . . . handcuffs on her too tightly, causing

160 R. Doc. 69 at p. 30; R. Doc. 1-1 at pp. 9-10.
161 R. Doc. 69 at p. 35 (quoting Hudson v. McMillian, 503 U.S. at 4).
162 R. Doc. 54-1 at p. 19.
163 Id. at p. 21.
164 Id. at p. 19 (citing Plaintiff’s Medical Records at R. Doc. 54-9).
165 Gomez v. Chandler, 163 F.3d at 923 (citing Knight v. Caldwell, 970 F.2d 1430, 1432–33 (5th Cir.1992)).
166 Id. at 923–24.
167 Siglar v. Hightower, 112 F.3d 191, 193–94 (5th Cir. 1997).
168 Williams v. Bramer, 180 F.3d 699, 704 (5th Cir. 1999), decision clarified on reh’g, 186 F.3d 633 (5th Cir.
1999).
her wrist to swell” was insufficient to support her claim of excessive force.169 In this case, the
Plaintiff allegedly sustained physical injury to his ankles, toes, and rectum during his four-
day period of confinement in the dry cell ending March 19, 2021. RCC’s medical records
indicate Plaintiff did not complain about these injuries to any medical provider after his
release from the dry cell nor did he raise them during his annual physical examination by
Dr. Robert Cleveland six days after he was released from the dry cell on March 25, 2021.170
Thus, even if Plaintiff’s allegations of forceful conduct are true, Plaintiff is not protected from
the alleged physical injuries by the Eighth Amendment under Fifth Circuit law.

Accordingly, Plaintiff has failed to identify a clearly established constitutional right
against excessive force for the Defendant officers’ improper conduct. Because he failed to
satisfy the second prong of the qualified immunity analysis, Defendants’ motion for
summary judgment on the issue of qualified immunity with respect to Plaintiff’s claim of
excessive force will be granted.171
C. The Defendant officers are entitled to summary judgment on
Plaintiff’s bystander liability claim for failure to prevent an
excessive use of force; the Defendant officers are not entitled to
summary judgment on Plaintiff’s bystander liability claim for
failure to prevent unconstitutional conditions of confinement.

“Under the Eighth Amendment to the United States Constitution, a defendant
security officer may be found responsible for a failure to intervene and take reasonable
measures to protect an inmate from another officer's use of excessive force under a theory
of bystander liability.”172 “An officer is liable for failure to intervene when that officer: (1)

169 Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001).
170 R. Doc. 54-9 at pp. 100–11. The records of Plaintiff’s annual physical examination by Robert Cleveland, MD
on March 25, 2021 indicate Plaintiff denied that he was experiencing any pain and specifically denied he was
experiencing pain related to his musculoskeletal and gastrointestinal systems. Id. at pp. 100–01.
171 Because Plaintiff did not identify a clearly established constitutional right that protects him from any
conduct of the Defendant officers he argues is excessive force, the Court need not discuss the application of
qualified immunity to the Defendant officers, individually.
172 LeBouef v. Hardy, 21-556, 2022 WL 17332573, at *3 (M.D. La. Oct. 31, 2022)
knew a fellow officer was violating an individual's constitutional rights, (2) was present at
the scene of the constitutional violation, (3) had a reasonable opportunity to prevent the
harm but nevertheless, (4) chose not to act.”173 “In resolving whether a plaintiff has
sufficiently alleged a bystander liability claim we also consider whether an officer
‘acquiesced in’ the alleged constitutional violation.”174
In this case, Plaintiff alleges “rampant and widespread cronyism . . . causes or
contributes to the [RCC] staff sticking together and covering for one another.”175 Specifically,
Plaintiff alleges the Defendant officers “st[ood] by and allow[ed] the violation of

rights/fail[ed] to protect [him from other officers].”176 Defendants argue they were “clearly
in compliance with DPSC policy and procedures” and cannot be liable under a theory of
bystander liability “because none of Plaintiff’s rights were violated and no harm was
present.”177
In the Fifth Circuit, a finding of bystander liability presumes the existence of a
constitutional right. 178 As discussed above, Plaintiff has not satisfied his burden of
identifying a constitutional right to sustain his Eighth Amendment excessive force claim.
Thus, the Court will grant Defendants’ motion for summary judgment on qualified immunity
with respect to Plaintiff’s bystander to excessive force claim.
Defendants did not move for summary judgment on Plaintiff’s Eighth Amendment
unconstitutional conditions of confinement claim. The Court will deny Defendants’ motion

for summary judgment on Plaintiff’s bystander to conditions of confinement claim.

173 Joseph v. Bartlett, 981 F.3d 319, 343 (5th Cir. 2020).
174 Whitley v. Hanna, 726 F.3d at 647 (citations omitted).
175 R. Doc. 1-1 at p. 9.
176 Id.
177 R. Doc. 54-1 at p. 26.
178 Joseph, 981 F.3d at 343.
II. Summary judgment will be denied on Plaintiff’s state law claim based on
negligence; Plaintiff’s state law claim against DPSC based on respondeat
superior will be dismissed for lack of subject matter jurisdiction.

In his petition, Plaintiff asserts two claims under Louisiana state law against the
Defendant officers and the State of Louisiana, through the DPSC.179 Specifically, Plaintiff
seeks relief under article 2315 of the Louisiana Civil Code for the negligent acts and/or
omissions of the Defendant officers and asserts a claim against the State for employer
liability under a theory of respondeat superior.180
A. The Defendant officers are not entitled to summary judgment on
Plaintiff’s negligence claims based on the Louisiana discretionary
immunity statute.

In his petition, Plaintiff “seeks relief under [article] 2315 of the Louisiana Civil Code
[for] injuries [that] were occasioned by the intentional and/or negligent acts and/or
omissions of the Defendant[] [officers], and, in the alternative, for intentional infliction of
emotional distress.”181 Plaintiff specifically alleges the Defendant officers breached their
duty of care by engaging in the following “unreasonable conduct”: (1) violating “the standard
of care for health care at a correctional facility”; (2) inflicting corporal punishment on
Plaintiff “in violation of a state statute”; and (3) disregarding the “use of force policies and
procedures published by DOC and RCC.”182 Plaintiff’s petition likewise alleges the Defendant
officers breached their duty of reasonable care by subjecting him to unsanitary conditions of
confinement in the dry cell.183

179 See R. Doc. 1-1. Although the letter submitted by Plaintiff’s counsel to the Court on January 17, 2023 also
identifies a “State Court Battery” cause of action asserted against the Defendant officers, Plaintiff’s petition
filed in Louisiana state court does not state any claim of battery. Compare R. Doc. 15, with R. Doc. 1-1.
Accordingly, the Court will not analyze the merits of Defendants’ argument on whether qualified immunity
shields the Defendant officers from liability on Plaintiff’s purported battery claim. See R. Doc. 54-1 at pp. 33–
35.
180 R. Doc. 1-1 at p. 11.
181 Id.
182 Id. at pp. 9–10.
183 See R. Doc. 1-1.
In their answer to Plaintiff’s petition184 and in their motion for summary judgment,
the Defendant officers assert Louisiana statutory immunity shields them from liability for
Plaintiff’s state law negligence claims.185 Louisiana Revised Statutes 9:2798.1 exempts
“public entities or their officers or employees” from liability for “the exercise or performance
or the failure to exercise or perform their policymaking or discretionary acts when such acts
are within the course and scope of their lawful powers and duties.” 186 Defendants
acknowledge there is an exception to the statutory immunity under Louisiana Revised
Statutes 9:2798.1(C)(2), which forecloses the affirmative defense for acts or omissions that

constitute “criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or
flagrant misconduct.”187 However, Defendants incorrectly claim the applicability of this
exception is “the question before this Honorable Court on Defendants’ motion for summary
judgment” and that “[i]n order for Plaintiff to defeat Defendants’ claim of discretionary
immunity, it is incumbent upon him to put forth evidence showing that the conduct of the
defendant rose to the level of misconduct required by Louisiana Revised Statutes
9:2798.1(C)(2).”188
Defendants not only mischaracterize their subjective intent to be the single salient
issue for determining the applicability of the discretionary immunity statute, but they also
improperly try to shift the burden to Plaintiff to prove the affirmative statutory immunity
defense does not apply. Citing one unpublished opinion of the Louisiana First Circuit Court

of Appeal, Defendants argue “[o]nce a public official raises the defense of [statutory]

184 In their answer, Defendants explicitly pled the affirmative defense of “discretionary act immunity pursuant
to La. R.S. 9:2798.1.” R. Doc. 4 at p. 2.
185 R. Doc. 54-1 at p. 35 (citing La. R.S. § 9:2798.1).
186 La. R.S. § 9:2798.1.
187 R. Doc. 54-1 at p. 35 (citing La. R.S. § 9:2798.1(C)(2)).
188 Id. at p. 37 (citing Marshall v. Sandifer, 17-1246, p. 9 (La. App. 1 Cir. 9/21/18), 2018 WL 4520245, at *5).
immunity, the burden rests on the plaintiff to rebut it.”189 To the contrary, Louisiana law is
clear that “[t]he immunity offered by Louisiana’s discretionary immunity statute is . . . an
affirmative defense which must be specifically pleaded in the defendant’s answer.”190 “As
such, the defendant bears the burden of proving that this statutory immunity applies.”191
Indeed, unlike Defendants’ qualified immunity defense against Plaintiff’s claims arising
under the U.S. Constitution, in Louisiana “[t]he government has the burden of proving the
[statutory] immunity [defense] applies as the exception is in derogation of the Louisiana
Constitution’s waiver of sovereign immunity.”192

Because the burden is on the Defendants, the proper inquiry at the summary
judgment stage is whether Defendants show there is no genuine issue of material fact as to
the elements of their affirmative statutory immunity defense and that they are entitled to
judgment as a matter of law.193 In determining whether statutory immunity shields a
defendant from tort liability, Louisiana courts employ a two-step test:
First, if a statute, regulation, or policy prescribes a particular course of action,
there is no choice or discretion involved, and the immunity does not apply.
However, when discretion is involved, a court must then determine whether
that discretion is the kind that is shielded by the statutory immunity, that is,
discretion grounded in social, economic or political policy.194

“The immunity statute does not protect operational governmental decisions, but only
confers immunity for discretionary decisions based on social, economic, or political
concerns.”195 “In other words, when the government acts negligently for reasons unrelated

189 Id. (citing Trantham v. City of Baker, 10-1695, p. 4 n.7 (La. App. 1 Cir. 3/25/11), 2011 WL 1103628, at *4).
190 Asante-Chioke v. Dowdle, 22-4587, 2023 WL 5630464, at *6 (E.D. La. Aug. 31, 2023) (citing White v. City
of New Orleans, 00-2683, p. 2 (La. App. 4 Cir. 1/9/01), 806 So. 2d 675, 677).
191 Id. (emphasis added) (citing Johnson v. Orleans Par. Sch. Bd., 06-1223 (La. App. 4 Cir. 1/30/08), 975 So.
2d 698, 710 (finding municipal housing authority and school board had burden to prove affirmative defense of
discretionary immunity by a preponderance of the evidence)).
192 Batton v. Georgia Gulf, 261 F. Supp. 2d 575, 600 n.21 (M.D. La. May 6, 2023).
193 See FED. R. CIV. P. 56(c).
194 Addington v. Wells, 2023 WL 2808466 (5th Cir. Apr. 6, 2023) (citing Aucoin v. Larpenter, 20-0792, pp.
13–14 (La. App. 1 Cir. 4/16/21), 324 So. 3d 626, 637–38).
195 Aucoin, 20-0792, p. 14, 324 So. 3d at 638.
to public policy considerations, it is liable to those it injures.”196 Thus, for Defendants to
prevail on summary judgment, they must demonstrate their conduct was consistent with the
course of action prescribed by a policy or, absent a policy on point, was discretionary and
grounded in a social, economic, or political policy, by citing to materials in the record for
support.
In this case, Defendants failed to satisfy their burden because they included no
statements of undisputed material fact demonstrating their conduct complied with any
specific policy or procedure that prescribes a course of action. Nor did they include

statements of undisputed material facts demonstrating they exercised reasonable discretion
with respect to a specific social, economic, or political policy that involved choice or
discretion. Instead, Defendants merely made conclusory assertions that the Defendant
officers “followed DPSC policy and procedures when investigating Plaintiff, which included
the use of a visual body cavity search, body scanner scans, and the placement on dry cell
restrictions.”197
Accordingly, Defendants have not met their burden of showing there are no material
facts in dispute and they are entitled to discretionary immunity from tort liability as a matter
of law. Their motion for summary judgment on the issue of discretionary immunity with
respect to Plaintiff’s state law negligence claims will be denied.
B. The State of Louisiana must be dismissed for lack of jurisdiction.

In his petition, Plaintiff alleges the State of Louisiana through the DPSC, as “[a]n
employer[,] is liable pursuant to respondeat superior for the tortious acts committed against
third parties by its employees during the course and scope of employment and while under

196 Id.
197 R. Doc. 54-1 at p. 37. Further, without identifying any particular policy, Defendants contend “[t]hroughout
the investigation into contraband, from March 16-19, 2021, Defendants clearly complied with he prison policy
in order to maintain the security, safety, and order of the facility.” Id.
its control, direction and supervision pursuant to [Louisiana Civil Code articles] 2315, 2317,
and 2320.”198 In their motion for summary judgment, Defendants argue Plaintiff’s claim
against the DPSC fails as a matter of law purely because “Plaintiff has provided no evidence
to substantiate the claim that the Defendants’ battered Plaintiff.”199 While the Court
disagrees with the State’s rationale, the Court will dismiss Plaintiff’s respondeat superior
claim.
“The State of Louisiana is immune from suit in federal court under the Eleventh
Amendment.”200 “Sovereign immunity under the Eleventh Amendment bars actions for

monetary relief in federal court against a State or state agency unless the State has consented
to be sued.”201 “Generally, the State of Louisiana has not waived its immunity or consented
to the exercise of federal judicial power in civil actions against it.”202 “Thus, in each
unsanctioned instance of federal suit, the State or its agency must affirmatively waive its
Eleventh Amendment immunity.”203 “To ensure the enforcement of federal law, however,
the Eleventh Amendment permits suits for prospective injunctive relief against state officials
acting in violation of federal law.”204 “This standard allows federal courts to order
prospective relief and ancillary relief thereto where there exists a violation of federal law.”205
The State of Louisiana has not waived its sovereign immunity for Plaintiff’s
respondeat superior claim against the DPSC. In fact, the Louisiana Governmental Claims
Act explicitly provides, “no suit against the state or state agency or political subdivision shall

198 R. Doc. 1-1 at p. 11.
199 R. Doc. 54-1 at p. 38.
200 Able Sec. and Patrol, L.L.C. v. Louisiana, 07-1931, 2010 WL 1294053, at *4 (E.D. La. Mar. 20, 2010).
201 Id. (citing U.S. CONST. amend. XI; Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984);
Ala. v. Pugh, 438 U.S. 781, 782 (1978); Richardson v. Southern Univ., 118 F.3d 450, 452 (5th Cir. 1997)).
202 Id. (citing La. Rev. Stat. § 13:5106(A); Delahoussaye v. City of New Iberia, 937 F.2d 144, 147 (5th Cir. 1991)).
203 Id. (citing Port Auth. Trans–Hudson Corp. v. Feeney, 495 U.S. 299, 305 (1990); Stem v. Ahearn, 908 F.2d
1, 4 (5th Cir. 1990)).
204 Id. (citing Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004); Ex parte Young, 209 U.S. 123 (1908)).
205 Id. (citing Frew, 540 U.S. at 437).
be instituted in any court other than a Louisiana state court.”206 Fifth Circuit precedent
likewise supports the conclusion that “the [S]tate of Louisiana ha[s] not statutorily
expressed the intent to expose itself to suit in federal court and therefore did not expressly
waive Eleventh Amendment immunity.”207 Further, Plaintiff has failed to allege any
declaratory or injunctive relief in his petition against the State of Louisiana through the
DPSC.208 Although the State of Louisiana is not per se immune from declaratory or
injunctive relief suits, Plaintiff asserts only a damages claim against the DPSC under a theory
of respondeat superior.209 Accordingly, Plaintiff failed to assert a claim for which relief can

be granted against the State of Louisiana through the DPSC and the Eleventh Amendment
bars federal jurisdiction over the claim.
This Court has found damages claims against the State of Louisiana that “inevitably
involve the Louisiana public treasury . . . must be dismissed for lack of subject matter
jurisdiction under the Eleventh Amendment.”210 “Claims against government officials in
their individual capacities ‘seek to impose individual liability upon a government officer for
actions taken under color of state law,’”211 because “[t]he Eleventh Amendment does not
erect a barrier against suits to impose individual and personal liability on state officials
under [Section] 1983.”212 “However, the Eleventh Amendment bars suits against state
officials when the state is the real, substantial party in interest.”213 Thus, even though the

206 La. R.S. § 13:5106(A) (2018).
207 Able Sec., 2010 WL 1294053, at *4 (citing Fairley v. Stalder, 294 Fed. App’x 805, 811 (5th Cir. 2008)).
208 See R. Doc. 1-1.
209 Id. at pp. 11–12.
210 Asante-Chioke, 2023 WL 5630464, at *3.
211 Id. at *4 (quoting Hafer v. Melo, 502 U.S. 21, 25 (1991)).
212 Hafer, 502 U.S. at 30–31 (internal quotation marks omitted); see also Asante-Chioke, 2023 WL 5630464,
at *4 (“In an individual capacity suit, government officials ‘come to court as individuals, and the real party in
interest is the individual, not the sovereign.’” (quoting Lewis v. Clarke, 581 U.S. 155, 163–64 (2017) (internal
citations and quotation marks omitted))).
213 Asante-Chioke, 2023 WL 5630464, at *4 (citing Reyes v. Sazan, 168 F.3d 158, 162 (5th Cir. 1999) (internal
citation omitted)).
State does not raise a sovereign immunity defense against Plaintiff’s claim in the instant
motion for summary judgment, the State did not expressly waive sovereign immunity to his
damages claim. These facts cause the Court to dismiss Plaintiff’s claim against the State of
Louisiana through the DPSC, sua sponte, for lack of subject matter jurisdiction.
CONCLUSION
For the foregoing reasons;
IT IS ORDERED that the Defendants’ Motion for Summary Judgment is
GRANTED IN PART and DENIED IN PART.214

IT IS FURTHER ORDERED that the Defendants’ Motion for Summary Judgment
is GRANTED on the issues of qualified immunity with respect to Plaintiff’s Section 1983
claims against the Defendant officers for excessive force and for bystander liability for failure
to prevent an excessive use of force.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment is
DENIED on the issues of qualified immunity with respect to Plaintiff’s Section 1983 claims
against the Defendant officers for unconstitutional conditions of confinement, bystander
liability for failure to prevent unconstitutional conditions of confinement, and discretionary
immunity with respect to Plaintiff’s state law negligence claims against the Defendant
officers.
IT IS FURTHER ORDERED that Plaintiff’s claim against the State of Louisiana

through the DPSC is DISMISSED for lack of subject matter jurisdiction.

214 R. Doc. 54.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment is
DENIED AS MOOT on the issue of Plaintiffs claims of battery against the Defendant
officers and the State of Louisiana through the DPSC.2?5
New Orleans, Louisiana, this 13th day of March, 2024.

SUSIE MORGAS
UNITED STATES DISTRICT JUDGE

215 As discussed, Plaintiff's letter to the Court submitted on January 17, 2023 identifies a “State Court Battery”
cause of action asserted against the Defendant officers but Plaintiff's petition filed in Louisiana state court does
not state any claim of battery. Compare R. Doc. 15, with R. Doc. 1-1. Thus, the Court did not analyze the merits
of Defendants’ argument on whether qualified immunity shields the Defendant officers from liability on
Plaintiff's purported battery claims and denies as moot the summary judgment motion on the issue of Plaintiff's
battery claims against the Defendant officers and the DPSC. See R. Doc. 54-1 at pp. 33-35.
33

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10190582. Public record. Not legal advice.