Outley v. Batiste

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

RANDY OUTLEY (#125022) CIVIL ACTION NO.

VERSUS 17-1782-EWD

JANE BATISTE, ET AL. CONSENT

RULING AND ORDER1

On November 10, 2020, the Court held a pre-trial conference in this case. Based upon

review of the record, Randy Outley (“Plaintiff”), who is representing himself and is confined at

the Elayn Hunt Correctional Center in St. Gabriel Louisiana, was advised that he had never alleged

or produced evidence of any injury as a result of the alleged failure to protect of Defendants Jane

Batiste and Channle Veals (“Defendants”) that forms the basis of this suit. At the conference, the

Plaintiff was instructed to, if possible, respond to the noted deficiency by filing with the Court any

evidence that may indicate that he suffered more than a de minimis injury as a result of the alleged

failure to protect. The Court warned Plaintiff that if he was unable to show he suffered more than

a de minimis injury, his claims would be dismissed.2 Although Plaintiff has responded to the

Court’s directives in the form of a “Motion Not to Dismiss;”3 Plaintiff has failed to produce

evidence to show that he suffered more than de minimis injuries as a result of the alleged failure

to protect. Accordingly, summary judgment is appropriate and Plaintiff’s claims against

Defendants will be dismissed with prejudice.

1 The parties consented to proceeding before the magistrate judge pursuant to 28 U.S.C. § 636(c) and an Order of

Reference was issued. See R. Docs. 65, 66, & 71.

2 R. Doc. 65.

3 R. Doc. 70.

I. Background

Plaintiff filed this action pursuant to 42 U.S.C. § 1983 alleging “gross negligence” and

“failure to protect” on the part of Defendants.4 Plaintiff alleges that on April 21, 2017, he and

another inmate, a “tier walker,” later identified as Exalton Guidry (“Guidry”),5 got into an

argument and Guidry kicked Plaintiff through the bars of the cell dividing them.6 Plaintiff was

written up for property destruction and placed on mental health watch.7 Later that day, Plaintiff

alleges that his cell door was opened by Batiste while Plaintiff was in full restraints and while

Guidry was walking on Plaintiff’s “tier.”8 Plaintiff states that when he exited his cell, still in full

restraints, Guidry began to beat Plaintiff. Veals allegedly backed up and allowed this to occur

until a senior officer, Major Bellamy, stopped the conflict.9 Plaintiff claims Batiste knew Plaintiff

and Guidry had just had a conflict because “she had just seen us kicking at each other.”10

Defendants previously filed a motion for summary judgment seeking dismissal of

Plaintiff’s claims due to Plaintiff’s failure to exhaust administrative remedies or, alternatively, on

the basis of qualified immunity since Defendants had no knowledge of any threat posed by Guidry

to Plaintiff.11 The Court denied that motion because Plaintiff had sufficiently exhausted

administrative remedies and because there existed a genuine dispute regarding the fundamental

question of what knowledge Veals and Batiste possessed regarding the relationship between

Guidry and Plaintiff prior to opening Plaintiff’s cell door and escorting Plaintiff through the tier

4 R. Docs. 1 & 1-2, p. 1. Plaintiff sued Defendants only in their individual capacities. See R. Doc. 1-2. The Court

previously dismissed Plaintiff’s compensatory damages claim for failure to allege a physical injury. See R. Doc. 33.

That Ruling and Order did not foreclose recovery of nominal or punitive damages. Id. at n. 23.

5 R. Docs. 21-6; 21-7; 24-3, p. 6.

6 R. Doc. 1, p. 4.

7 R. Doc. 1, p. 4. It is unclear why Plaintiff was placed on mental health watch.

8 R. Docs. 1 & 1-2.

9 R. Doc. 1-2, p. 1.

10 Id. See also, R. Doc. 12-1, p. 1.

11 R. Doc. 21.

while Guidry was present.12 The Court now considers whether summary judgment is appropriate

for other reasons on its own motion.

II. Law & Analysis

A. Standard of Review

A court may consider summary judgment on a motion brought by a party, or sua sponte

independent of a motion.13 In order to consider summary judgment on its own after identifying

for the parties material facts that may not be genuinely in dispute, the court must first give the

parties, “notice and a reasonable time to respond.”14 A district court possesses the power to enter

summary judgement sua sponte, “so long as the losing party [is] on notice that she ha[s] to come

forward with all of her evidence.”15 Adequate notice need not contain the phrase “summary

judgment” or explicitly reference Federal Rule of Civil Procedure 56 to be considered sufficient.16

This Court provided Plaintiff with notice that his suit would be dismissed if he failed to provide

evidence that he sustained more than a de minimis injuries as a result of the alleged failure to

protect that forms the basis of this suit, and gave Plaintiff a specific time period in which to provide

any evidence.17

Summary judgment is appropriate where there is no genuine disputed issue as to any

material fact, such that the moving party is entitled to judgment as a matter of law.18 Summary

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

12 R. Docs. 34 & 35.

13 Compare Fed. R. Civ. P. 56(a) (permitting a party to move for summary judgment on each claim or defense), with

Fed. R. Civ. P. 56(f)(3) (permitting a court to, “consider summary judgment on its own after identifying for the parties

material facts that may not be genuinely in dispute”).

14 Fed. R. Civ. P. 56(f).

15 Celotex Corp. v. Catrett, 477 U.S. 317, 326, (1986).

16 Nat'l Cas. Co. v. Kiva Const. & Engineering, Inc., 496 Fed.App’x 446, 452 (5th Cir. 2012), citing Scott v. Mississippi

Dep’t of Corr., 961 F.2d 77, 79 (5th Cir. 1992).

17 R. Doc. 65.

18 Fed. R. Civ. P. 56. See also, Celotex Corp., 477 U.S. at 322; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

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

of proof at trial.19 In resolving a motion for summary judgment, the court may not evaluate the

credibility of witnesses, weigh the evidence, or resolve material factual disputes.20 However, only

competent summary judgment evidence can be considered.21

B. Failure to Protect

Under the Eighth Amendment to the United States Constitution, a prisoner has a

constitutional right to be sheltered from the threat of harm or violence from other inmates.22

Specifically, prison officials “have a duty ... to protect prisoners from violence at the hands of

other inmates.”23 However, a showing of some injury is required to establish a failure to protect

claim. Because Plaintiff has not provided competent summary judgment evidence to establish any

injury and because, even if other information in the record is considered, any injuries are not more

than de minimis, Plaintiff’s failure to protect claim must be dismissed.

1. There is no competent summary judgment evidence to establish any injury

Numerous cases have addressed whether injury is required to demonstrate a constitutional

violation in the context of a failure to protect claim and have concluded that the dismissal of an

inmate’s failure to protect claim is warranted, even as frivolous, where no harm or injury has in

fact occurred as a result of the defendants’ actions.24 Here, the only competent summary judgment

19 Celotex Corp., 477 U.S. at 323.

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

21 See, Fed. R. Civ. Proc. 5(c), which requires an assertion to be supported by “citing to particular parts of materials

in the record, including depositions, documents, electronically stored information, affidavits or declarations,

stipulations, admission, interrogatory answers, or other materials”). See also, Smith v. Palafox, 728 Fed. App’x 270,

275-76 (5th Cir. 2018) (upholding exclusion of unsworn expert reports submitted in opposition to summary judgment

because “evidence proffered in opposition to summary judgment must be sworn or declared under penalty of perjury

….”).

22 Johnston v. Lucas, 786 F.2d 1254, 1259 (5th Cir. 1986).

23 Farmer v. Brennan, 511 U.S. 825, 832 (1994).

24 Alexander v. Morgan, No.17-313, 2018 WL 1734633, at *3 (M.D. La. March 27, 2018), report and recommendation

adopted, Alexander v. Morgan, No. 17-313, 2018 WL 1735048 (M.D. La. April 10, 2018). See also Walzier v.

McMullen, 333 Fed.App’x. 848, 851 (5th Cir. 2009) (upholding summary judgment in favor of the defendants where

there was no proof of harm to the plaintiff from co-inmates and, “[a]bsent a showing that other inmates harmed [the

evidence in the record indicates that Plaintiff was examined after the encounter with Guidry, and,

at this examination, Plaintiff voiced no complaints, showed no signs of trauma, and was in no

apparent distress.25 Because the only competent evidence in the record shows that Plaintiff did

not suffer any injuries as a result of the alleged attack occurring on April 21, 2017, he cannot

prevail on his claim for failure to protect as a matter of law.26

2. Even if other information were considered, Plaintiff has not established

more than de minimis injuries

Plaintiff has stated in other documents before the Court that do not constitute competent

summary judgment evidence that he suffered only general soreness and pain as a result of the

incident.27 However, even if these statements are considered, damages are not available to a

plaintiff for a failure to protect claim if he has suffered no more than a de minimis injury.28 In

other words, a showing of more than a de minimis injury is required to prove a constitutional

plaintiff], there is no factual basis for a failure to protect claim”); Castellano v. Treon, 79 F.App’x. 6, 7 (5th Cir. 2003)

(upholding the dismissal of an inmate’s failure-to-protect claim as frivolous where the plaintiff conceded that “he

suffered no actual physical injury resulting from the prison officials’ purported failure to protect”); Wilson v. King,

2015 WL 1427479, at *6 (S.D. Miss. Mar. 27, 2015) (dismissal as frivolous where the inmate plaintiff “admit[ted]

that he suffered no physical injury”).

25 R. Doc. 49-11 (Plaintiff’s medical records), p. 39. In fact, Plaintiff repeatedly refers to his belief that the applicable

legal standard does not require a showing of physical injury. See e.g., R. Doc. 11, p. 1 (“Most courts have decided

constitutional violations are in different categorys [sic]. And for that reason you can get compensatory damages even

if you have no physical injury.”); R. Doc. 12, p. 1 (Same).

26 See Spivey v. Wilson, No. 17-94, 2019 WL 5095629, at *9 (E.D. Tex. Sept. 27, 2019) (granting summary judgment

for defendants and dismissing a plaintiff’s claims of failure to protect when in the days following the incident the

plaintiff did not complaint of injuries in his sick calls or conversations with medical personnel). Recovery of any

damages, including nominal or punitive, requires the showing of a constitutional violation. In order to establish a

constitutional violation for failure to protect, Plaintiff must suffer more than de minimis injury. See Alexander, 2018

WL 1734633, at *3. Because the record evidence that Plaintiff did not sustain any injury is uncontradicted, Plaintiff

cannot recover any damages for this failure to protect claim, including nominal or punitive damages.

27 R. Doc. 24-2, p. 2 (“The tier walker hit me with body punches. I ducked into him so he couldn’t hit me in the face

a boxing move. I told the EMT the same. I’m glad I didn’t have to go to the hospital. I was just was sore in the

body.”). See also, R. Doc. 70 (“I suffered the pain of that beating in full restraints. PAIN.”).

28 Ruiz v. Price, 84 Fed.App’x. 393, 395 (5th Cir. 2003) (“Ruiz cannot receive damages as relief against these

defendants because he did not allege more-than-de-minimis injury.”). See Gilliam v. McMillin, No. 09-99, 2012 WL

845185, at *2 (S.D. Miss. Mar. 12, 2012) (“vague statement as to injury is insufficient to surmount the de minimis

hurdle”); Burns v. Morgan, No. 05-4222, 2006 WL 237018, at *4 (S.D. Tex. Jan. 30, 2006) (head, neck, and shoulder

pain treated with ice pack and ibuprofen was not more than de minimis injury). See also Herron v. Patrolman No. 1,

111 Fed.Appx. 710, 713 (5th Cir. 2004) (a temporary increase in pain is insufficient to surpass the de minimis

threshold).

violation based on failure to protect.29 Though there is no bright line for what amounts to more

than a de minimis injury, courts have taken a “common-sense” approach to determining whether

an injury is de minimis.30 Generally, “scrapes, scratches, cuts, abrasions, bruises, pulled muscles,

back aches, leg aches, etc.” do not pass the de minimis threshold.31 Similarly, a sore, bruised ear

lasting for three days is de minimis.32

General soreness and pain, as alleged by Plaintiff, is clearly de minimis.33 An injury that

passes the de minimis threshold must be the kind of physical injury that is “an observable or

diagnosable medical condition requiring treatment by a medical care professional. It is not a sore

muscle, an aching back, a scratch, an abrasion, a bruise, etc., which lasts even up to two or three

weeks.”34 “Injuries treatable at home and with over-the-counter drugs, heating pads, rest, etc.” are

not more than de minimis, so as to permit recovery of damages for a failure to protect claim.35

Here, the medical records produced do not indicate Plaintiff was injured at all, but even if this

Court were to consider Plaintiff’s statements regarding general pain and soreness, Plaintiff has not

provided evidence to show he suffered more than de minimis injuries from the alleged failure to

protect.36

29 See Spivey, 2019 WL 5095629, at *9 (“A prisoner claiming a constitutional violation for failure to protect must also

show more than a de minimis injury.”); Carter v. Prator, No. 12-1233, 2013 WL 3894134 (W.D. La. July 26, 2013)

(“the Eighth Amendment’s prohibition of cruel and unusual punishment excludes from constitutional recognition de

minimis physical injury.”); Walzier, 333 Fed.App’x. at 851 (“[a]bsent a showing that other inmate harmed [plaintiff],

there is no factual basis for a failure to protect claim.”); Simmonds v. Laughlin, No. 04-1015, 2006 WL 581272, at *2

(S.D. Tex. March 7, 2006) (“Such Eighth Amendment claims are not actionable unless there is a showing of physical

injury resulting from the allegedly unconstitutional conduct.”).

30 Luong v. Hatt, 979 F.Supp. 481, 486 (N.D. Tex. Sept. 11, 1997).

31 Id.

32 Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).

33 See Luong, 979 F.Supp. at 486 (scrapes, scratches, bruises, and aches are suffered by free world people in everyday

living and do not rise to a level sufficient to pass the de minimis threshold).

34 Id.

35 Id.

36 Plaintiff cites Hudson v. McMillian, 530 U.S. 1 (1992) and McLaurin v. Prater, 30 F.3d 982 (8th Cir. 1994) for the

proposition that a showing of injury is not required for a claim under the Eighth Amendment. These cases are

distinguishable from Plaintiff’s case because Hudson and McLaurin analyzed the need to show harm in the context of

excessive force claims, whereas the claim here is for failure to protect. The Court does not opine on what degree of

injury is required to state a claim of excessive force in the Fifth Circuit because that claim is not before the Court.

Accordingly, because Plaintiff has failed to bring forward sufficient evidence to establish

a required element of a failure to protect claim after notice and an opportunity to be heard, his

clams are subject to dismissal.

C. Conclusion

Accordingly, IT IS ORDERED that Plaintiff’s Motion Not to Dismiss37 is DENIED.

IT IS FURTHER ORDERED that, pursuant to Federal Rule of Civil Procedure 56(f)(3),

summary judgment is granted in favor of Defendants, Jane Batiste and Channle Veals, and this

matter is DISMISSED WITH PREJUDICE.

Signed in Baton Rouge, Louisiana, on November 18, 2020.

S

ERIN WILDER-DOOMES

UNITED STATES MAGISTRATE JUDGE

37 R. Doc. 70.