The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
RENIL ESCOBARRIVERA CIVIL ACTION
VERSUS
DARRELL VANNOY, ET AL. NO. 19-00498-BAJ-EWD
RULING AND ORDER
Before the Court are two cross-motions for summary judgment, which,
collectively, seek disposition of Plaintiff’s claims that his ongoing assignment to Close
Custody Restriction (“CCR”)—i.e., segregated confinement—violates his
constitutional right to due process. (Docs. 51, 52). Also before the Court is Defendant
Antonio Whitaker’s Motion To Dismiss Pursuant To FRCP Rule 4(m) (Doc. 40),
seeking dismissal of Plaintiff’s retaliation claim against Defendant Whitaker only, on
the basis that Plaintiff has failed to properly serve Whitaker. Each motion is opposed
(see Docs. 45, 55, 57), and the parties have also submitted reply memoranda in further
support of their respective positions (see Docs. 57, 58, 59).
On February 24, 2021, the Magistrate Judge issued a Report and
Recommendation (Doc. 60), recommending that summary judgment be granted in
Defendants’ favor on Plaintiff’s due process claim. Specifically, the Magistrate Judge
determined that qualified immunity shields Defendants from liability because
Plaintiff cannot prove that his continued assignment to CCR violates a clearly
established constitutional right. In relevant part, the Magistrate Judge explained:
The law regarding due process with respect to segregated confinement
is murky, and Plaintiff’s confinement in CCR (just over three years) is
past the length of time that has been held to be clearly constitutional in
the Fifth Circuit but has not been long enough such that a due process
violation is likely implicated. Specifically, “the Fifth Circuit has
concluded that restrictive placements of less than two-and-a-half years
do not implicate due process and that placements of more than five years
likely do.”
(Doc. 60 at 7 (citing Bailey v. Fisher, 647 F. App'x 472, 475–76 (5th Cir. 2016);
Hernandez v. Abbott, No. 17-23, 2020 WL 5539093, at *12 (E.D. Tex. Aug. 24, 2020),
report and recommendation adopted, No. 17-23, 2020 WL 5534522 (E.D. Tex. Sept.
15, 2020)).
The Magistrate Judge’s Report further recommends that Plaintiff’s claims for
violations of equal protection, and for retaliation against Defendant Whitaker, be
dismissed sua sponte as frivolous under 28 U.S.C. §§ 1915(e) and 1915A. (Doc. 60 at
11-17).
Finally, having addressed the underlying merits of Plaintiff’s claims, the
Magistrate Judge recommends that Defendant Whitaker’s request to dismiss for
insufficient service be denied as moot. (Id. at 17).
On March 8, 2021, Plaintiff filed timely objections to the Magistrate Judge’s
Report and Recommendation (Doc. 62).
Having carefully considered the Magistrate Judge’s Report and
Recommendation, the parties’ motions, and related filings—including Plaintiff’s
objections—the Court APPROVES the Magistrate Judge’s Report and
Recommendation and ADOPTS it as the Court’s opinion in this matter.
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Plaintiff’s objections to the Magistrate Judge’s Report lack merit. Without
belaboring the point, the Court agrees with the Magistrate Judge’s conclusion that,
based on the facts presented, Plaintiff cannot show that his continued assignment to
CCR violates a clearly established constitutional right. The U.S. Fifth Circuit Court
of Appeals has stated unequivocally that a term of “eight years in [segregated]
custody, with no prospect of immediate release in the near future, is ‘atypical’ in
relation to the ordinary incidents of prison life,” Wilkerson v. Goodwin, 774 F.3d 845,
855 (5th Cir. 2014) (quoting Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000)), and
indicated that a term of five years in segregated custody likely implicates a protected
liberty interest, see Bailey v. Fisher, 647 F. App'x 472, 477 (5th Cir. 2016). By contrast,
the Fifth Circuit has also instructed that a duration in segregated confinement of up
to two and one-half years “does not give rise to a liberty interest.” Wilkerson, 774 F.3d
at 855 (emphasis added). Plaintiff’s assignment to CCR—now approaching three and
one-half years—falls in between the two and one-half year mark (no liberty interest),
and the five year mark (possibly a liberty interest). The lack of clear guidance
regarding terms equivalent to Plaintiff’s term is dispositive, and entitles Defendants
to qualified immunity, as explained in the Magistrate Judge’s Report. (See Doc. 60 at
11 (“The law is not clearly established that Plaintiff’s continued confinement in CCR
has given rise to a liberty interest, so any right to due process that could have been
infringed by Defendants was not clearly established either.”)
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The Court further agrees that Plaintiff has failed to state a plausible class-of-
one equal protection claim, or a plausible retaliation claim against Defendant
Whitaker.
Accordingly,
IT IS ORDERED that Plaintiff’s Motion for Summary Judgment (Doc. 51) is
DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary
Judgment is GRANTED, and that Plaintiff’s claims against Defendants Tim
Delaney, Joseph LaMartinaire, and Darrell Vannoy are DISMISSED WITH
PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff’s claims for violations of equal
protection, as well as his claims against Antonio Whitaker for retaliation are
DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §§ 1915(e) and 1915A.
IT IS FURTHER ORDERED that Defendant Antonio Whitaker’s Motion to
Dismiss (Doc. 40) is DENIED AS MOOT.
Having disposed of all claims in Defendants’ favor, the Court will separately
issue a final judgment dismissing Plaintiff’s action with prejudice.
Baton Rouge, Louisiana, this 12th day of March, 2021
______________________________________
JUDGE BRIAN A. JACKSON
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
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