Opinion

Marlow Green v. Scott Duncan

Court
District Court, M.D. Louisiana
Filed
Oct 22, 2019
Cited by
0 cases
Authority
More cited than 22.5%

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.

\

Baton Rouge, Louisiana, this Z| a day of October, 2019.

JUDGE BRIAN >a

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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