Wright v. Smith

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

CHADWICK WRIGHT (#368195) CIVIL ACTION

VERSUS

LT. WILLIAM SMITH, ET AL. NO. 13-775-JWD-RLB

RULING AND ORDER

This matter comes before the Court on the defendants’ Motion for Summary Judgment

(R. Doc. 46).1 The Motion is opposed. See R. Docs. 47 and 59-3.

The pro se plaintiff, an inmate incarcerated at the Louisiana State Penitentiary (“LSP”),

Angola, Louisiana, filed this action pursuant to 42 U.S.C. § 1983 against Lt. William Smith,

Capt. Gary Aymond, Nurse Supervisor Katherine Bell and an unidentified “Jane Doe” medical

technician employed at LSP, complaining that the defendants violated his constitutional rights in

several respects. Specifically, the plaintiff alleges that on April 20, 2012, defendant Aymond

charged the plaintiff with a retaliatory disciplinary report in response to the plaintiff’s exercise of

his First Amendment right to seek redress of grievances and that on June 30, 2012, defendant

Aymond and the remaining defendants variously subjected the plaintiff to an improper search,

charged him with false and retaliatory disciplinary reports, subjected him to excessive force, and

exhibited deliberate indifference to his serious medical needs. Pursuant to a previous Report by

the Magistrate Judge (R. Doc. 32), adopted by the District Judge on February 11, 2015 (R. Doc.

33), defendants “Jane Doe” and Katherine Bell were dismissed for failure of the plaintiff to serve

1 This matter was remanded to the District Court by United States Court of Appeals for the Fifth Circuit in order for

the District Court to take in as evidence the plaintiff’s amended Declaration (R. Doc. 59-3) and to consider whether

defendants Smith and Aymond are entitled to summary judgment in light of the facts asserted therein. See R. Doc.

78.

these defendants in accordance with Federal Rule of Civil Procedure 4(m). Pursuant to the same

Report and Recommendation, the plaintiff’s claims relating to the events of April of 2012 were

dismissed as time-barred.

The defendants move for summary judgment relying upon the pleadings, a Statement of

Undisputed Facts, the affidavits of Lt. Joshua Barett, Katherine Bell, Dr. Randy Lavespere,

defendant Lt. William Smith, and defendant Gary Aymond, and certified copies of disciplinary

reports dated June 30, 2012 for contraband, an aggravated sex offense, and aggravated

disobedience and defiance, portions of the plaintiff’s medical records, Department Regulation

No. C-02-003 pertaining to searches of offenders, and the Camp D Raven 3 and 4 Logbook for

June 30, 2012.2 The plaintiff opposes the defendants’ Motion for Summary Judgment relying

upon the pleadings, a Statement of Disputed Factual Issues, and his own Declaration.

Pursuant to well-established legal principles, summary judgment is appropriate where

there is no genuine disputed issue as to any material fact, and the moving party is entitled to

judgment as a matter of law. Rule 56, Federal Rules of Civil Procedure. Celotex Corp. v.

Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). A party

moving for summary judgment must inform the Court of the basis for the motion and identify

those portions of the pleadings, depositions, answers to interrogatories and admissions on file,

together with affidavits, if any, that show that there is no such genuine issue of material fact.

Celotex Corp. v. Catrett, supra, 477 U.S. at 323. If the moving party carries its burden of proof

under Rule 56, the opposing party must direct the Court’s attention to specific evidence in the

record which demonstrates that the non-moving party can satisfy a reasonable jury that it is

2 The Logbook for Hawk 1 and 2 for June 30, 2012 is also listed as an exhibit, “L”, but was not provided. Instead a

duplicate copy of exhibit “J,” the Logbook for Camp D Raven 3 and 4 was marked as exhibit “L.” Nevertheless, a

copy of the Camp D Hawk 1 and 2 Logbook for June 30, 2012 is found in the record at R. Doc. 43-4.

entitled to a verdict in its favor. Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 248. This

burden is not satisfied by some metaphysical doubt as to alleged material facts, by unsworn and

unsubstantiated assertions, by conclusory allegations, or by a mere scintilla of evidence. Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). Rather, Rule 56 mandates that summary

judgment be entered against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case and on which that party will bear the burden

of proof at trial. Celotex Corp. v. Catrett, supra, 477 U.S. at 323. Summary judgment is

appropriate in any case where the evidence is so weak or tenuous on essential facts that the

evidence could not support a judgment in favor of the non-moving party. Little v. Liquid Air

Corp., supra, 37 F.3d at 1075. In resolving a motion for summary judgment, the Court must

review the facts and inferences in the light most favorable to the non-moving party, and the

Court may not evaluate the credibility of witnesses, weigh the evidence, or resolve factual

disputes. International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).

In his Complaint, the plaintiff alleges that during a ten-day period preceding April 20,

2012, he learned from several sources that defendant Aymond was planning to retaliate against

the plaintiff if the plaintiff did not voluntarily withdraw an administrative grievance that the

plaintiff had filed against the defendant. After the plaintiff advised defendant Aymond that the

plaintiff would not withdraw the referenced grievance, the defendant allegedly approached the

plaintiff on April 20, 2012, stated “what did I tell you,” and escorted the plaintiff to

administrative segregation in connection with an allegedly falsified disciplinary report. The

plaintiff complains that he was thereafter found guilty in connection with that report and was

sentenced to segregated confinement and to a loss of fifty-two weeks of incentive pay.3

3 These claims were previously dismissed as time-barred. See R. Docs. 32 and 33.

Approximately two months later, on June 27, 2012, the plaintiff was transferred from

segregated confinement to a working cellblock at LSP. Three days later, on June 30, 2012,

defendant Aymond allegedly visited the plaintiff’s cell with another officer and conducted a

search of the plaintiff’s belongings. According to the plaintiff, defendant Aymond falsely

purported to discover “contraband” in the plaintiff’s cell and instructed the other officer to issue

the plaintiff a disciplinary report (omitting any reference to defendant Aymond’s presence during

the search), causing the plaintiff to again be escorted to administrative segregation. Upon arrival

in segregated confinement, the plaintiff was allegedly placed in the shower cell at that location

while awaiting assignment to a cell. While he was waiting, defendant Katherine Bell4 allegedly

arrived on the cell tier to dispense medications and, without justification, falsely accused the

plaintiff of masturbating in the shower cell. Several hours later on the same date, defendants

Aymond and Smith approached the plaintiff in the shower cell and proceeded to spray him with

irritant spray without justification or provocation, and one of these officers threw a food tray and

some dirty cleaning water on the plaintiff during the incident. According to the plaintiff, the

unprovoked use of chemical agent was not unusual inasmuch as there is an alleged “customary

practice” at LSP, pursuant to which supervisory security officers routinely “use chemical agent

on inmates whenever a female security guard accuses an inmate of masturbating.” In addition to

the foregoing, the plaintiff asserts that defendants Bell and Smith issued two additional

disciplinary reports against the plaintiff in connection with the above-referenced incidents of

June 30, 2012, falsely accusing the plaintiff, respectively, of engaging in a “sex offense” and of

“aggravated disobedience,” the latter for allegedly causing a disturbance in his cell that required

4 Defendant Katherine Bell was previously dismissed due to the plaintiff’s failure to serve this defendant in

accordance with Federal Rule of Procedure 4(m). See R. Docs. 32 and 33.

the application of irritant spray. The plaintiff asserts that defendant Smith’s disciplinary report

of that date again omitted any reference to the presence of defendant Aymond.

Finally, the plaintiff complains that immediately after the application of irritant spray by

defendants Smith and Aymond on June 30, 2012, defendant Aymond instructed the plaintiff to

take a shower and change into a fresh jumpsuit. The plaintiff refused, however, believing that

the shower water was too hot and believing, from past experience, that the hot water would

aggravate the effects of the chemical agent. Ultimately, however, after assistance was provided

by another security officer, Sgt. Frye (not named as a defendant herein), the plaintiff agreed to

change into a clean jumpsuit, and a medical officer arrived on the tier, identified as defendant

“Jane Doe,”5 who attended to the plaintiff’s complaints. The plaintiff complains, however, that

defendant “Doe” refused to assist the plaintiff in obtaining access to cold water to rinse away the

residual chemical agent and, as a result, the plaintiff suffered chemical burns to his head. The

plaintiff also complains that he was ultimately found guilty of the three (3) disciplinary reports

issued against him by security officers on that date and was sentenced to a loss of fifty-two (52)

weeks of incentive pay and eight (8) weeks of canteen privileges in connection with the

“contraband” charge issued at the instruction of defendant Aymond, to a loss of fifty-two (52)

weeks of incentive pay and eight (8) weeks of canteen privileges in connection with the “sex

offense” charge issued by defendant Bell, and to monetary restitution in the amount of $ 2.00 and

a transfer to punitive segregated confinement at Camp J at LSP in connection with the

“aggravated disobedience” charge issued by defendant Smith. According to the plaintiff, all of

5 Defendant “Jane Doe” was previously dismissed due to the plaintiff’s failure to serve this defendant in accordance

with Federal Rule of Procedure 4(m). See R. Docs. 32 and 33.

the events of June 30, 2012, were part of a continuing plan by defendant Aymond to retaliate

against the plaintiff.

The defendants assert that they are entitled to qualified immunity in connection with the

plaintiff’s claims. Specifically, the defendants contend that the plaintiff’s allegations and

evidentiary showing fail to show the existence of a genuine issue of disputed fact relative to any

alleged violation of the plaintiff’s constitutional rights.

The qualified immunity defense is a familiar one and, employing a two-step process,

operates to protect public officials who are performing discretionary tasks. Huff v. Crites, 473 F.

App’x. 398 (5th Cir. 2012). As enunciated in Saucier v. Katz, 533 U.S. 194 (2001), the first step

in the analysis is to consider whether, taking the facts as alleged in the light most favorable to the

plaintiff, the defendant’s conduct violated the plaintiff’s constitutional rights. Id. at 201.

Second, the district court looks to whether the rights allegedly violated were clearly established.

Id. This inquiry, the Court stated, is undertaken in light of the specific context of the case, not as

a broad, general proposition. Id. The relevant, dispositive inquiry in determining whether a

constitutional right was clearly established is whether it would have been clear to a reasonable

state official that his conduct was unlawful in the situation which he confronted. Id. at 202. The

assertion of the qualified immunity defense alters the summary judgment burden of proof.

Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005). Once a defendant pleads qualified

immunity, the burden shifts to the plaintiff, who “must rebut the defense by establishing that the

official’s allegedly wrongful conduct violated clearly established law and that genuine issues of

material fact exist regarding the reasonableness of the official’s conduct.” Gates v. Texas

Department of Protective and Regulatory Services, 537 F.3d 404, 419 (5th Cir. 2008), citing

Michalik v. Hermann, supra, 422 F.3d at 262.6

Undertaking the qualified immunity analysis with respect to the plaintiff’s remaining

claims of a violation of his Fourth Amendment rights, retaliation, and use of excessive force, the

Court finds that the defendants’ motion for summary judgment should be granted in part with

respect to the plaintiff’s Fourth Amendment claim. As to the plaintiff claims of retaliation and

the use of excessive force, the Court finds that there are genuine disputed issues of material fact

in this case relative to these claims.

First, with regards to the plaintiff’s claim that defendant Aymond violated his Fourth

Amendment rights by searching his cell on June 30, 2012 with another correctional officer, the

Court notes that while imprisoned persons enjoy many protections of the Constitution, it is clear

that imprisonment carries with it the circumscription or loss of many significant rights. See Bell

v. Wolfish, 441 U.S. 520, 545 (1979). Loss of freedom of choice and privacy are inherent

incidents of confinement. The Fourth Amendment proscription against unreasonable searches

and seizures does not apply within the confines of the prison cell. The recognition of privacy

rights for prisoners in their individual cells simply cannot be reconciled with the concept of

incarceration and the needs and objectives of penal institutions. Hudson v. Palmer, 468 U.S.

517, 526 (1984); United States v. Ward, 561 F.3d 414, 419 (5th Cir. 2009) (stating that “as a per

se rule a prisoner cannot invoke the Fourth Amendment because society is not prepared to

recognize a prisoner's expectation of privacy in his prison cell”).

6 The United States Supreme Court has held that rigid chronological adherence to the Saucier two-step methodology

is not mandatory. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Although the Saucier methodology will be

“often beneficial”, the Court in Pearson leaves to the lower courts discretion as to the order in which they may wish

to address the two prongs of the qualified immunity analysis. Id.

Notwithstanding, the plaintiff also asserts that the referenced search, the subsequent

disciplinary reports for contraband, an aggravated sex offense, and aggravated disobedience and

defiance, and the use of excessive force were orchestrated by defendant Aymond in retaliation

for the plaintiff refusing to withdraw the grievance filed against defendant Aymond. The

defendants assert that defendant Aymond was not personally involved in the search of the

plaintiff’s cell, with the subsequently issued disciplinary reports, or the use of chemical agent on

the plaintiff. The defendants further assert that the plaintiff cannot establish “but for” causation.

Although the Court acknowledges that prison officials are not permitted to retaliate

against an inmate due to that inmate’s use of the grievance process, claims of retaliation by

prison inmates are regarded with skepticism, lest the federal courts potentially embroil

themselves in every adverse action that occurs within a penal institution. Id. at 1166.

Accordingly, to prevail on a claim of retaliation, a prisoner must be able to establish (1) that he

was exercising or attempting to exercise a specific constitutional right, (2) that the defendants

intentionally retaliated against the prisoner for the exercise of that right, (3) that an adverse

retaliatory action, greater than de minimis, was undertaken against the prisoner by the

defendants, and (4) that there is causation, i.e., that but for the retaliatory motive, the adverse

action would not have occurred. Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2006). See also

Hart v. Hairston, 343 F.3d 762, 764 (5th Cir. 2003); Jones v. Greninger, 188 F.3d 322, 324–25

(5th Cir. 1999). If an inmate is unable to point to the exercise of a specific constitutional right,

his claim will fail as a matter of law. See Tighe v. Wall, 100 F.3d 41 (5th Cir. 1996) (dismissing

an inmate's claim for failure to demonstrate the exercise of a specific constitutional right); Woods

v. Smith, supra, 60 F.3d at 1166 (observing that, “[t]o state a claim of retaliation an inmate must

allege the violation of a specific constitutional right”). Further, the inmate must allege more than

a mere personal belief that he is the victim of retaliation. Jones v. Greninger, supra, 188 F.3d at

325; Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997). Finally, to demonstrate the

requisite retaliatory intent on the part of a defendant, the inmate must produce direct evidence of

retaliatory motivation or allege a chronology of events from which retaliation may plausibly by

inferred. Woods v. Smith, supra, 60 F.3d at 1166.

The summary judgment evidence submitted by the defendants reflects that defendant

Aymond was not present during the search of the plaintiff’s cell. The Camp D Raven 3 and 4

Logbook for June 30, 2012 and the disciplinary report issued for contraband do not reflect the

presence of defendant Aymond during the search, and the affidavits of Lt. Barrett and defendant

Aymond state that defendant Aymond was not present during the routine search of the plaintiff’s

cell. See R. Docs. 46-4, 46-5, 46-8, and 46-13.

Likewise, the affidavit of defendant Aymond states that he was not present when the

plaintiff was issued a disciplinary report for an aggravated sex offense after the plaintiff was

transferred to Hawk 1 Right, and the affidavit of Katherine Bell states that she did not observe

defendant Aymond on Hawk 1 when she was conducting pill call. The referenced disciplinary

report also does not reflect the presence of defendant Aymond. See R. Docs. 46-5, 46-6, and 46-

9.

Additionally, the disciplinary report issued for defiance and aggravated disobedience and

the Camp D Hawk 1 and 2 Logbook for June 30, 2012 do not reflect the presence of defendant

Aymond when the plaintiff was sprayed with a chemical agent by defendant Smith. The

affidavits of defendants Smith and Aymond state that defendant Aymond was not present at the

time the chemical agent was used. See R. Docs. 43-4, 46-5, 46-7, and 46-10.

However, the plaintiff states in his Declaration (R. Doc. 59-3) that defendant Aymond

was present during each event complained of and his presence was purposefully omitted in all

documents. As such, the court cannot determine without making an inappropriate credibility

determination that defendant Aymond was not present during or personally involved in the

alleged retaliatory events.

Additionally, the timeline of events set forth in the plaintiff’s Declaration is sufficient to

establish the requisite retaliatory intent on the part of defendant Aymond with regards to the

issuance of the false disciplinary report in June of 2012. The plaintiff states the following in his

Declaration: In March of 2012, he filed a grievance against defendant Aymond. In April of

2012, defendant Aymond confronted the plaintiff about the grievance, and the plaintiff was

informed by another inmate that defendant Aymond intended to retaliate against the plaintiff if

he did not abort the grievance procedures. After refusing to sign a “drop sheet” presented to him

by defendant Aymond on April 11, 2012, the plaintiff was escorted to administrative segregation

by defendant Aymond who later filed a false disciplinary report alleging that the plaintiff had

displayed aggression when he was told to pick up his pants. The plaintiff was sentenced to

extended lockdown, among other things.7

On June 6, 2012 the plaintiff proceeded to the Second Step in the grievance procedure.

On June 27, 2012, the plaintiff was moved to the Camp D Raven working cell block rather than

extended lockdown. Three days later his cell was searched by defendant Aymond and J. Barret,

and a false disciplinary report was subsequently issued for contraband. The plaintiff was then

transferred to a shower cell at Camp D by defendant Smith.

7 This claim was dismissed as prescribed but the events complained of are pertinent to the timeline of events overall.

While in the shower cell, former defendant Bell stopped at the plaintiff’s cell twice to

offer him unsolicited information regarding the location of his medication on a different pill cart.

Bell then informed Sgt. Frye that she observed the plaintiff masturbating in the shower cell.

Later the same day, defendants Smith and Aymond approached the shower cell in a hostile

manner, and the defendants immediately sprayed the plaintiff with a chemical agent, threw a

food tray against the back of his head, refused to provide him with cold water to shower, and

threw a bucket of dirty cleaning solution on the back of his head before leaving the plaintiff with

Sgt. Frye. As such, the plaintiff’s Declaration sets forth a timeline of events from which

retaliation can be plausibly inferred.

The Court now turns to plaintiff’s claim of excessive force against defendants Aymond

and Smith. A use of force by a prison official is excessive and violates the Eighth Amendment

to the United States Constitution only when such force is applied maliciously and sadistically for

the very purpose of causing harm rather than in a good faith effort to maintain or restore

discipline. Wilkins v. Gaddy, 559 U.S. 34, 37 (2010), quoting Hudson v. McMillian, 503 U.S. 1,

7 (1992). Not every malicious or malevolent action by a prison guard gives rise to a federal

cause of action, however, and the Eighth Amendment’s prohibition against cruel and unusual

punishment necessarily excludes from constitutional recognition de minimis uses of physical

force, provided that such force is not of a sort “repugnant to the conscience of mankind.”

Hudson v. McMillian, supra, 503 U.S. at 10, quoting Whitley v. Albers, 475 U.S. 312, 327

(1986). The fact that an inmate may have sustained only minimal injury, however, does not end

the inquiry, and an inmate who has been subjected to gratuitous force by prison guards “does not

lose his ability to pursue an excessive force claim merely because he has the good fortune to

escape without serious injury.” Wilkins v. Gaddy, supra, 559 U.S. at 38. Notwithstanding, the

Court may consider the extent of injury, if any, as potentially relevant to a determination whether

an alleged use of force was excessive under the circumstances. In addition, other factors that

may be considered in determining whether an alleged use of force has been excessive include the

perceived need for the application of force, the relationship between the need for force and the

amount of force utilized, the threat reasonably perceived by prison officials, and any efforts

made to temper the severity of a forceful response. Hudson v. McMillian, supra, 503 U.S. at 7.

The summary judgment evidence submitted by the defendants shows that defendant

Smith was called to Hawk 1 and 2 regarding an offender causing a disturbance at approximately

3:50 p.m. When defendant Smith arrived, the plaintiff was yelling and shaking the bars of the

shower cell. The plaintiff stated, “That mother f*****g b***h a*s nurse done hooked me up

with a 21.” (R. Doc. 46-7). Defendant Smith gave the plaintiff several direct verbal orders to

stop shaking the bars and cursing. The plaintiff refused and stated, “Get the f**k out of my face

Lt. Smith.” Defendant Smith then retrieved a can of Phantom chemical agent, and again gave

the plaintiff several direct verbal orders to stop causing a disturbance. The plaintiff failed to

comply, and defendant Smith administered a one-second burst of chemical agent into the cell.

The plaintiff then complied with defendant Smith’s orders. A disciplinary report was issued for

defiance and aggravated disobedience, for which the plaintiff was later found guilty. See R.

Docs. 46-7 and 46-10. Thereafter the plaintiff was allowed to shower and was given a clean

jumpsuit. See R. Doc. 46-11.

The defendants assert that, in response to the plaintiff’s refusals to cease the disturbance,

defendant Smith utilized minimal and necessary force to maintain discipline. The question

becomes, therefore, whether defendant Smith’s use of force in response to the plaintiff’s act of

refusal was objectively reasonable or whether it instead rose to the level of excessive force

prohibited by the Eighth Amendment.

Contrary to the evidence presented by the defendants, the plaintiff states in his

Declaration that while in the shower cell, former defendant Bell stopped at the plaintiff’s cell

twice to offer him unsolicited information regarding the location of his medication on a different

pill cart. Bell then informed Sgt. Frye that she observed the plaintiff masturbating in the shower

cell. Later the same day, defendants Smith and Aymond approached the shower cell in a hostile

manner, and the defendants immediately sprayed the plaintiff with a chemical agent, threw a

food tray against the back of his head, refused to provide him with cold water to shower, and

threw a bucket of dirty cleaning solution on the back of his head before leaving the plaintiff with

Sgt. Frye. As such, there is a genuine issue of material fact regarding the need for the use force

on the part of defendants Aymond and Smith, and whether the defendants utilized more force

than was justified under the circumstance.

As previously noted, in resolving a motion for summary judgment, the Court must review

the facts and inferences in the light most favorable to the non-moving party, and the Court may

not evaluate the credibility of witnesses, weigh the evidence, or resolve factual disputes.

International Shortstop, Inc. v. Rally’ s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991). In the instant

matter, the parties have provided competing sworn accounts of the events, and the resolution of

the factual disputes will require credibility determinations that are not susceptible of

determination on motion for summary judgment. In light of the apparent disputed fact issues

regarding the plaintiff’s retaliation and excessive force claims, the defendants’ Motion should be

denied in this regard. Accordingly,

IT IS ORDERED that the defendants’ Motion (R. Doc. 46) is GRANTED IN PART,

and the plaintiff’s claim asserted against defendant Aymond for a violation of his Fourth

Amendment rights is dismissed with prejudice.

IT IS FURTHER ORDERED that in all other regards, the defendants’ Motion (R. Doc.

46) is DENIED.

IT IS FURTHER ORDERED that this matter is referred back to the Magistrate Judge

for further proceedings herein.

Signed in Baton Rouge, Louisiana, on July 11, 2019.

S

JUDGE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA