The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
MARLOW GREEN CIVIL ACTION
VERSUS
CAPT. SCOTT DUNCAN, ET AL. NO.: 17-00363-BAJ-RLB
RULING AND ORDER
Before the Court is Defendants Scott Duncan, Tyrone Kilbourne, and Gary
Aymond’s Ex-Parte Motion for Summary Judgment (Doc. 45). Also before the
Court is Plaintiffs Motion to Strike (Doc. 46) and Defendants’ First Motion for
Leave to File (Doc. 50). For the reasons stated herein, Defendants’ Motion (Doe.
45) is DENIED. Further, Plaintiffs Motion to Strike (Doc. 46) is DENIED AS
MOOT, and Defendants’ Motion for Leave (Doc. 50) is DENIED.
I. BACKGROUND
Plaintiffis an inmate housed at the Louisiana State Penitentiary, who alleges
he was attacked by another inmate, John Duncan. In his Complaint, Plaintiff alleged
that inmate Duncan was combative with prison authorities and announced that he
was “homicidal and suicidal,” that he “did not want to be in a cell with anyone,” and
would harm himself and any inmate he was placed in a cell with. (Doe. 1, at {| 7-9).
Plaintiff further alleged that all three Defendants heard these threats. Ud., at {| 10).
Defendants then allegedly forced inmate Duncan into Plaintiff's cell, and inmate
Duncan immediately began beating Plaintiff once uncuffed. (Id., at pp. 14-19).
On October 18, 2018, Defendants filed a Motion for Summary Judgment (Doc.
19). The Court granted that Motion with respect to Plaintiffs negligence claims
against Defendants and denied it with respect to Plaintiffs § 1983 failure-to-protect
claims deriving from the Eighth Amendment. See (Doc. 30). In his Opposition (Doc.
20), Plaintiff provided declarations from three other inmates (Does. 20-3, 20-4, & 20-
5) stating that inmate Duncan made threats under circumstances that would have
been heard by Defendants, prior to being placed in Plaintiffs cell and attacking him.
Now, nearly one year after the Court-ordered deadline for filing motions,
Defendants bring a new Motion for Summary Judgment to re-argue their qualified
immunity defense to Plaintiffs § 1983 claims in light of a recent Fifth Circuit decision.
II. LEGAL STANDARD
The Court will grant summary judgment where the movant demonstrates that
there is no genuine dispute as to any material fact and that they are entitled to
judgment as a matter of law. FED. R. Civ. P. 56(a). In deciding whether the movant
has made that showing, the Court views facts and draws reasonable inferences in the
non-movant’s favor. See Vann v. City of Southaven, Miss., 884 F.3d 307, 309 (5th Cir.
2018) (Citation omitted).
Pursuant to Federal Rule of Civil Procedure 16(b)(1), a scheduling order must
be issued following a scheduling conference. A scheduling order establishing a
deadline for filing motions was issued in September of 2017. (Doc. 16). Extending the
time to file motions is permitted under Federal Rule of Civil Procedure 6(b)(1), which
permits a court to extend time for good cause after the original time or its extension
expires where “the party failed to act because of excusable neglect.” FED. R. Civ. P.
6(b)(1)(B).
HI. DISCUSSION
At the outset, the Court must address the fact that Defendants have failed to
comply with the deadline for filing motions in this case. All motions were ordered to
be filed by October 19, 2018, and this Motion was filed almost a year later, on
September 27, 2019. (Docs. 16 & 45). It would not be improper to deny this Motion on
purely procedural grounds, even considering Defendants’ Motion for Leave (Doe. 50),
filed four days after the Motion itself. Nevertheless, even if the Court were to grant
leave to file this Motion for excusable neglect under Rule 6(b)(1)(B) in light of new
law cited by Defendants, Defendants’ Motion fails on the merits.
The Court’s previous Order rejecting Defendants’ qualified immunity defense
in Defendants’ first Motion to Dismiss (Doc. 19) specifically stated that “qualified
immunity does not change the analysis” of Plaintiffs failure-to-protect claims. (Doc.
30, at p. 4). Inmate declarations provided by Plaintiff showed a genuine dispute of
material fact on the question of deliberate indifference to the risk that Plaintiff would
be attacked by inmate Duncan. The same holds true now.
Defendants’ new Motion hinges entirely upon a new Fifth Circuit case, Jason
vu. Tanner, No, 18-30837, 2019 WL 4252240 (5th Cir. Sept. 9, 2019). In Jason, an
inmate attacked the plaintiff with a sling blade someone had discarded on the yard,
which the attacker acquired despite an ID check system that monitored sling blades
(Jason, at *1), The crux of Jason that Defendants emphasize is the holding that the
district court misapplied the test of “substantial risk” that a fellow inmate would
attack the plaintiff, acknowledging only a risk. (d., at *4). The district court further
erred by finding that the defendants disregarded that risk by failing to prove that
everyone who was supposed to be keeping an eye on inmates was doing so at all times.
Id. The Fifth Circuit held that there was no evidence defendants shirked their duties,
which were merely to keep track of the blades and keep an eye on prisoners while
they made rounds. Id.
Jason adds nothing new to the relevant law. It merely offers a factual scenario
that did not meet the standard for deliberate indifference. In Jason, the plaintiff was
attacked during an argument with another inmate with whom the plaintiff had no
previous disputes. (/d., at *1). Here, Plaintiff also does not allege any history with his
attacker, but he has provided declarations from other inmates corroborating his
claims that inmate Duncan made vocal threats, including those of a homicidal nature,
towards any potential cellmate before he was paired with Plaintiff. Defendants’ claim
that they “did not hear [] Duncan” does not resolve the dispute of material facts
concerning inmate Duncan’s threats. Defendants’ statement that “[t]he sad truth is
this; Duncan would have attacked any inmate he would have been celled with in order
to avoid being double celled” does not bolster Defendants’ argument that they were
not aware of any substantial risk of serious harm. (Doc. 45-1, at p. 9).
IV. CONCLUSION
Accordingly,
IT IS ORDERED that Defendants’ Motion for Summary Judgment (Doc.
45) is DENIED.
IT IS FURTHER ORDERED that Plaintiffs Motion to Strike (Doc. 46) is
DENIED AS MOOT.
IT IS FURTHER ORDERED that Defendants’ Motion for Leave (Doc. 50)
is DENIED.
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Baton Rouge, Louisiana, this Z| a day of October, 2019.
JUDGE BRIAN >a
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA