Mitchell v. Starks

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

HASSON MITCHELL CIVIL ACTION

VERSUS

STATE OF LOUISIANA, ET AL, NO. 20-00470-BAJ-SDJ

RULING AND ORDER

Plaintiff is an inmate at the Elayn Hunt Correctional Center “EHCC”) in St.

Gabriel, Louisiana. He alleges that on December 21, 2017 he protested a correctional

officer’s mistreatment of a fellow inmate, prompting the same officer to handcuff him,

mace him, and forcibly “throw” him into the shower, causing him to trip over a

concrete partition, fall, and suffer multiple broken bones.

Plaintiff seeks damages from the offending officer—Defendant Lt. Allen

Stark—alleging constitutional claims of excessive force and retaliation, and state law

claims of negligence and battery. Plaintiff also seeks recovery from Lt. Stark’s

employer—Defendant Louisiana Department of Public Safety and Corrections

(“LDPSC”)—asserting that LDPSC is vicariously liable for Lt. Stark’s state law torts.

Now before the Court is Defendants’ Motion For Summary Judgment (Doc.

41). Plaintiff opposes Defendants’ Motion. (Doc. 48). For the reasons stated herein,

Defendants’ Motion will be denied and Plaintiffs claims will be submitted to a jury.

I. BACKGROUND

A, Summary Judgment Evidence

The facts set forth below are drawn from Defendants’ Statement Of

Uncontested Facts (Doc. 1-2; Doc. 41-8, “SOF”), Plaintiffs Response To Statement Of

Facts (Doc. 43-12, “Response SOF”), the parties’ joint Pre-Trial Order (Doc. 50,

“PTO”), and the record evidence submitted in support of these pleadings.!

On December 21, 2017, Lt. Stark and three additional correctional officers—

non-parties Col. Brent Thompson, Capt. Donald Johnson, and Lt. Eric Lane—

responded to reports of “an offender breaking glass” in EHCC’s “Fox 7” yard. (Doc.

41-2 at {| 2; Doc. 41-3 at 2-4). Upon arriving at Fox 7, Lt. Stark approached inmate

Thomas Miller-—the offender allegedly responsible for the broken glass——“to remove

him from Fox 7.” (Doc. 41-2 at 7 4).

Plaintiff and muitiple other inmates were also in the Fox 7 yard at the time.

1 Plaintiff encourages the Court to treat the allegations set forth in his original un-verified

complaint as summary judgment evidence, based on a subsequent letter to counsel in which

he states, “I declare under the penalty of perjury that the facts stated are true and correct in

my ARP and in my lawsuit.” (Doc. 48-1). “A plaintiff's verified complaint can be considered

as summary Judgment evidence to the extent that it comports with the requirements of Fed.

R. Civ. P. 56.” King v. Dogan, 31 F.3d 844, 346 (5th Cir. 1994),

Here, there are two problems with Plaintiffs purported verification. First, it comes

three years after Plaintiffs complaint, and Plaintiff cites no authority that allows the Court

to effectively convert an unverified complaint to competent summary judgment evidence

based on an after-the-fact verification. Second, Plaintiffs purported verification is deficient

because it does not state that it is made on personal knowledge, and does not specify what

Plaintiff means by “my lawsuit.” Further, Plaintiffs “ARP” is not part of the summary

judgment record. Thus, Plaintiffs verification fails the specificity requirements set forth at

Rule 56(c). See Guzman v. Allstate Assurance Co., 18 F.4th 157, 161 (5th Cir. 2021) (“Self-

serving affidavits and declarations, like all summary judgment evidence, must “be made on

personal knowledge, set out facts that would be admissible in evidence, and show that the

affiant or declarant.is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).

And these facts must be particularized, not vague or conclusory.”).

The Court will not excuse these deficiencies when, as here, Plaintiff is represented by

counsel. Accordingly, for now, the Court disregards the allegations set forth in Plaintiff's

complaint and his “ARP.” In any event, Plaintiff is not prejudiced by this ruling, because

sufficient additional evidence exists to create a material dispute defeating summary

judgment.

Inmate Dwayne Miller—-Thomas Miller’s cousin—witnessed Lt. Stark’s encounter

with Inmate Miller, and saw Lt. Stark “punching[,] kicking and stomping” him. (Doc.

43-6 at p. 1; see also Doc. 43-8 at p. 1)). Eventually, Lt. Stark placed Inmate Miller in

handcuffs, and escorted him out of the yard. (Doc. 41-2 at | 4).

Plaintiff also witnessed Lt. Stark’s encounter with Inmate Miller, and

attempted to intervene. Fellow inmate Cleveland Bell recalls that Plaintiff was calm,

telling Lt. Stark “that he didn’t have to treat him [Inmate Miller] like that,” and

thereafter telling Capt. Johnson (in Lt. Stark’s presence) “that he had no problem,

and ... was just trying to get Lt. Stark to stop using excessive force, because [Lt.

Stark] was clearly doing too much.” (Doe. 48-8 at p. 1). By contrast, Capt. Johnson

remembers Plaintiff “being unruly,” “yelling,” and encouraging other offenders to

“jump on” Lt. Stark, saying “Man we are going to beat Lt. Stark’s a**,” and “Man y’all

some b******, Let's get this mother {*****,” (Doc. 41-2 at [4 4-6).

Perceiving a threat, Capt. Johnson “immediately ordered [Plaintiff] to place

his hand [sic] behind his back to be handcuffed.” (Doc. 41-2 at { 4). Plaintiff

“complied.” (7d. at { 7). Then, Capt. Johnson ordered Lt. Lane “to escort [Plaintiff] to

Administrative Segregation, also known as Beaver 5.” (Id. at { 8).

Lt. Lane followed Capt. Johnson’s command, and recalls that Plaintiff “was

acting unruly” “[d]uring the entire transport from Fox 7 to Beaver 5.” (Doc. 41-3 at

{ 5). Significantly, however, Lt. Lane provides no description of Plaintiffs “unruly”

behavior, or any indication that Plaintiffs behavior caused a disturbance, impeded

Lt. Lane’s ability to escort Plaintiff to Beaver 5, or necessitated a forceful response.

(See id. at J 3-5).

Lt. Stark met Lt. Lane and Plaintiff Beaver 5’s main lobby. (/d. at {J 6-7).

Lt. Stark took control of Plaintiff—who remained handcuffed—at which point Lt.

Lane immediately “exited.” Ud. at 4 6-7). After Lt. Lane left, Lt. Stark led Plaintiff

to the Beaver 5 segregation unit, where they were observed by two additional

correctional officers—Master Sergeants Kendrick Williams and Carmen Dowdy—and

two additional inmates—Shane Chesne and Travis Dunn.

Set. Wiliams was “in the Beaver 5 interlock” when he observed Lt. Stark

“[come] in the door with [Plaintiff].” (Doc. 41-4 at J 2). Sgt. Williams recalls that

Plaintiff “was in handcuffs,” and “was being combative”’—i.e., “physically resisting”

and “refusing all orders that [Lt. Stark] was giving him.” (/d. at 7 4-5). Sgt. Williams

also remembers that he “heard Plaintiff teli [Lt. Stark], ‘I’m going to get you.” Ud. at

6). Then, Sgt. Williams “reached down to grab a set of full restraints when [he]

heard a loud noise.” (Doc. 41-4 at { 3). Apparently, Lt. Stark had “take[n] [Plaintiff]

to the ground ... to get him under control so that Plaintiff would not harm himself,

other offenders or security staff.” (id. at J 7). Notably, Sgt. Williams does not state

that he witnessed Lt. Stark take Plaintiff “to the ground.” (See id.),

Set. Williams further states that after Lt. Stark took Plaintiff to the ground,

he (Sgt. Williams) “exited Beaver 5 Interlock and opened C-Tier to allow access to the

shower,” at which point Lt. Stark “escorted [Plaintiff] into the shower.” (Doc. 41-4 at

{{ 8-9). After Lt. Stark “escorted” Plaintiff into the shower, Set. Williams recalls

removing Plaintiff's handcuffs and ordering Plaintiff to submit to a strip search. (Id.

at 10-11). Plaintiff initially refused, “but he eventually complied,” submitting to a

search conducted by Lt. Stark. Ud. 4] 11).

Sgt. Dowdy corroborates Set. Williams’ account, to a point. Sgt. Dowdy was

also in the “Beaver 5 Interlock when [she] observed [Lt. Stark] enter ... with

Plaintiff,” who “was acting irate and using profanity.” (Doc. 41-5 at J 2-3). Set.

Dowdy heard Plaintiff “state in a loud, boisterous tone, ‘I’m not going in the shower”

—even after Lt. Stark “ordered him several times to do so”—and saw Plaintiff “turn

his body away from [Lt. Stark] while [Lt. Stark] was attempting to escort him into

the shower.” Ud. at |] 4-5). Even so, Sgt. Dowdy “did not witness when [Lt. Stark]

took [Plaintiff] to the ground.” Ud. at § 6).

Inmates Chesne and Dunn offer accounts that are generally consistent with

the statements of Sgts. Williams and Dowdy. Each, however, provides additional

detail that frames Lt. Stark’s actions in a substantially different light. Inmate Chesne

states:

I saw [Lt. Stark] bring [Plaintiff] in the lobby of Beaver #5 handcuffed],]

at which time [Plaintiff] started screaming that they was [sic] hurting

him. After a few minutes ... Lt. Stark threw [Plaintiff] in the shower],]

sprayed him with mace and told him to shut the f*** up before they kick

his a** some more. [Plaintiff] laid on the floor crying for medical help ...

at which time he started using the bathroom on his self [sic].

(Doc. 48-7 at p. 1).

Inmate Dunn offers a similar account, with additional detail:

I... was housed in Beaver 5... when I saw Lt. Stark dragging and

punching [Plaintiff] up the walk into Beaver 5 unit... . They then threw □

[Plaintiff] in the shower half way while he was handcuffed behind his

back. He [Plaintiff] had no way to brace his fall. He [Plaintiff] landed on

the 1 foot tall, 1 foot wide concrete partition that you have to step over

to enter the shower. I heard him scream in pain and complain about his

back and arm that he landed on, telling Lt. Stark after he threw him

that he think [sic] he broke something. They told him nothing is wrong

with him and drug him the rest of the way into the shower. Lt. Stark

continued to assault [Plaintiff] in the shower with restraints. I heard the

audible noises of the assault as well as [Plaintiff] begging them to stop.

Lt. Stark deployed chemical agents onto him while he was laying down

restraining in the shower.

(Doc, 48-9 at p. 1).

The next day (December 22) Plaintiff sought medical attention from EHCC

medical staff. Plaintiffs certified medical records show that he complained of “an

altercation” with a “C/O” that resulted in “[left] wrist pain,” “facial and lower back

pain,” incontinence, and other “symptoms.” (Doc. 43-11 at p. 70). EHCC medical staff

braced Plaintiff with a C-collar, and arranged for ambulance transport to the

emergency room at Our Lady of the Lake Regional Medical Center (OLOL), where

Plaintiff was admitted and diagnosed with a broken wrist. (Id. at pp. 66, 70). OLOL

staff also observed an “age-indeterminate fracture of [Plaintiffs] left L2” vertebrae.

Ud. at p. 67; see also Doc. 43-4 at pp. 1-2).

OLOL records reflect that Plaintiffs initial “complaint” to OLOL emergency

staff was consistent with Plaintiffs complaint to EHCC medical staff:

Mr. Mitchell [Plaintiff] is a 38 yo man with no significant PMH who was

brought in from prison after being assaulted yesterday around 3pm.

Patient reports his head was slammed against a wall and he was thrown

on the ground and kicked. Endorses LOC for unknown amount of time. ~-

Complains of generalized headache associated with blurry vision and

worsened with photophobia. Complains of left facial pain, neck pain, rib

pain, lower back pain, and left wrist pain. States he tried to walk this

morning but had too much pain. Pain improved with rest.

(Doc. 43-4 at p. 2).

Plaintiffs medical records reflect that he complained of ongoing pain for

months after his December 21 encounter with Lt. Stark. (See generally Doc. 43-11).

Another inmate—-Cleveland Bell—states that after the December 21 altercation,

Plaintiff “looked like he’d been in some bad accident. His face was badly swollen on

one side, and he had to use a wheelchair for awhile [sic].” (Doc. 48-8 at p. 1).

Notably absent from the summary judgment record is any account from Lt.

Stark regarding the events of December 21, 2017.

B. Procedural History

Plaintiff initiated this action in the Eighteenth Judicial District Court for the

Parish of Iberville, Louisiana, naming Lt. Stark and LDPSC as Defendants. (Doe. 1-

2). Against Lt. Stark, Plaintiff alleges claims of unlawful retaliation in violation of

the First Amendment and excessive force in violation of the Eighth Amendment, and

state law claims of negligence and battery. (Doc. 1-2 at 7] 49-51, 53-60). Against

LDPSC, Plaintiff alleges respondeat superior liability for Lt. Stark’s state law torts.

LDPSC removed Plaintiffs action to this Court, asserting federal question

jurisdiction. (Doc. 1). Now Defendants jointly move for summary judgment, arguing

(1) Plaintiffs constitutional claims fail because Lt. Stark is shielded by qualified

immunity (Doc. 41-1 at pp. 6-18); Plaintiffs negligence and battery claims fail because

Lt. Stark followed EHCC policy and employed appropriate force “to obtain control of

the situation,” (d. at pp. 18-21); and (3) in turn, Plaintiffs respondeat superior claim

fails because Plaintiff cannot “prove that Lt. Stark is liable for any negligence,” (id.

at p. 20). Plaintiff opposes Defendants’ Motion. (Doc. 43).

II. ANALYSIS

A. Standard

The summary judgment standard is well-set: to prevail, the moving party must

show that there is no genuine dispute as to any material fact and that it is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(a). In making this assessment, the

Court must view all evidence and make all reasonable inferences in the light most

favorable to the non-moving party. Owens v. Circassia Pharms., Inc., 33 F.4th 814,

824 (5th Cir. 2022).

Importantly, at summary judgment, it is not the Court’s “function ... to weigh

the evidence and determine the truth of the matter but to determine whether there

is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

It follows that “[c]redibility determinations have no place in summary judgment

proceedings.” Richardson v. Oldham, 12 F.8d 1878, 1879 (6th Cir. 1994),

Hqually important, whether moving for or against summary judgment, a

party's evidence “must be particularized, not vague or conclusory.” See Guzman v.

Allstate Assurance Co,, 18 F.4th 157, 161 (5th Cir. 2021). “[S]peculation, improbable

inferences, or unsubstantiated assertions” will not carry the day. Jones v. United

States, 986 F.3d 318, 321 (Sth Cir. 2019) (quotation marks omitted).

B. Discussion

1. Lt. Stark is not entitled to qualified immunity from

Plaintiff's constitutional claims

“The doctrine of qualified immunity shields a government official performing

discretionary functions from civil damages liability, provided his complained of

actions meet the test of ‘objective legal reasonableness.” Staten v. Tatom, 465 F.

App'x 358, 357 (5th Cir. 2012) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 819

(1982)). “We assess the ‘objective reasonableness’ of an officer's actions in light of the

particular circumstances and the legal rules ‘clearly established’ at the time the

officer's actions were taken.” Id. (quoting Anderson v. Creighton, 488 U.S. 635, 639

(1987).

In practice, the two-pronged test for qualified immunity asks (1) “whether the

facts, viewed in the light most favorable to the party asserting the injury, show that

the official’s conduct violated a constitutional right,” and (2) “whether the right was

‘clearly established.” Cunningham v. Castloo, 983 F.3d 185, 190-91 (5th Cir. 2020).

A court may analyze these prongs in either order, and resolve the case on a single

prong. Id. at 190.

Critically, “[a] qualified immunity defense alters the usual summary judgment

burden of proof,” because “[o]nce a government official asserts [qualified immunity],

the burden shifts to the plaintiff to rebut the defense.” Bourne v. Gunnels, 921 F.3d

484, 490 (Sth Cir. 2019) (quotation marks omitted); see also Collier v. Montgomery,

569 F.3d 214, 217 (6th Cir. 2009) “Although nominally an affirmative defense, the

plaintiff has the burden to negate the assertion of qualified immunity once properly

raised,”). Still, however, “all inferences are drawn in the plaintiff's favor.” Bourne,

921 F.3d at 490 (quotation marks and alterations omitted).

a. Excessive Force

Plaintiff contends that Lt. Stark used excessive force when he threw him—

handcuffed and not resisting—into the shower, then maced him and continued to

assault him.

It is clearly established that the Eighth Amendment protects prisoners from

“the unnecessary and wanton infliction of pain” at the hand of prison officials. Hudson

v. McMillian, 503 U.S. 1, 5 (1992) (quotation marks omitted). When, as here, a prison

official invokes qualified immunity to defend against a prisonev’s claim of excessive

force, “the core judicial inquiry is ‘whether force was applied in a good-faith effort to

maintain or restore discipline, or maliciously and sadistically to cause harm.”

Bourne, 921 F.3d at 491 (quoting Hudson, 503 U.S. at 6-7).

Courts analyze (1) the extent of the injury suffered, (2) the need for the

application of force, (8) the relationship between that need and the

amount of force used, (4) the threat reasonably perceived by the

responsible officials, and (5) any efforts made to temper the severity of

a forceful response.

The amount of force that is constitutionally permissible must be judged

by the context in which that force is deployed. Courts must decide

excessive force claims based on the nature of the force rather than the

extent of the injury. An inmate need not establish a significant injury to

pursue an excessive force claim because injury and force are only

imperfectly correlated, and it is the latter that ultimately counts.

10

Bourne, 921 F.3d at 491-92 (alteration, quotation marks, and citations omitted),

Viewed in the light most favorable to Plaintiff, and drawing all reasonable

inferences in Plaintiffs favor, the sum of the summary judgment evidence establishes

the following: On December 21 Plaintiff observed Lt. Stark forcibly remove Inmate

Miller from the Fox 7 yard. Plaintiff attempted to intervene, creating the potential

for a broader disturbance among the other inmates in the Fox 7 yard, but nonetheless

promptly compled when Capt. Johnson ordered him to place his hands behind his

back to be handcuffed. Thereafter, Lt. Lane removed Plaintiff (handcuffed) from the

7 yard to the Beaver 5 lobby without any appreciable difficulty.

Once in Beaver 5, Lt. Stark took over. Plaintiff verbally and physically resisted

Lt. Stark, and, according to Capt. Johnson, Lt. Stark took Plaintiff to the ground to

gain control over the situation (though Capt. Johnson did not see this first takedown).

After this initial takedown, Plaintiff submitted to Lt. Stark’s control and allowed Lt.

Stark to “escort” him to the shower without further resistance. Nonetheless, despite

Plaintiffs compliance, Lt. Stark threw Plaintiff (still handcuffed) into the shower

area, causing Plaintiff to trip over the conerete partition, fall, and break his left wrist

(and possibly his back). As Plaintiff was crying out in pain, Lt. Stark sprayed him

with mace, continued to beat him, and “told him to shut the f*** up before they kick

his a** some more.”

The Court assumes for present purposes that Lt. Stark’s initial takedown was

a constitutionally permissible “good-faith effort to maintain or restore discipline.” See

11

Bourne, 921 F.3d at 491 (quoting Hudson, 503 U.S. at 6~7). Lt. Stark’s subsequent

acts are another matter. First, of course, Plaintiff suffered substantial injuries—a

broken wrist and possibly a broken back. Second, Lt. Stark had already gained

Plaintiffs compliance when he threw Plaintiff into the shower, maced him, and beat

him, eliminating the need for additional force. This inference naturally follows from

Capt. Johnson’s account, which conspicuously omits any indication that Plaintiff

resisted as Lt. Stark “escorted [him] into the shower.” Third, without any need, Lt.

Stark nonetheless applied substantial force, “throwing” Plaintiff hard enough that he

stumbled and tripped over a known and obvious hazard (the concrete partition), and

thereafter beating Plaintiff. Fourth, there is no evidence that when Lt. Stark

reasonably perceived an ongoing threat when brought Plaintiff to the shower. In fact,

the available evidence reasonably suggests the opposite—that Plaintiff was not a

threat: Plaintiff had been removed from the Fox 7 yard (where he might have created

a disturbance among the other inmates), and had submitted to Lt. Stark’s control.

Fifth, there is also no evidence that after the initial takedown and before throwing

Plaintiff into the shower, Lt. Stark attempted to temper the severity of his actions.

Indeed, it appears that Lt. Stark escalated his response even after throwing Plaintiff

into the shower, by deploying mace and beating Plaintiff when he on the ground,

crying out in pain.

On this record, and absent any account from Lt. Stark, Plaintiff has plainly

produced enough evidence to rebut Lt. Stark’s qualified immunity defense and

12

establish a genuine contest regarding whether Lt. Stark acted “maliciously and

sadistically to cause harm” when he threw Plaintiff—handcuffed and no longer

resisting—into the shower, and thereafter assaulted him. See Bourne, 921 F.3d at

491 (quoting Hudson, 503 U.S. at 6-7); e.g. id. 921 F.3d at 492-98 (contested issues

of fact defeated defendants qualified immunity defense to excessive force claim where

the parties offered “competing versions of what occurred during the use of force and

whether defendants applied force after [plaintiff] stopped resisting and was

restrained [with handcuffs]”); Rankin v. Klevenhagen, 5 F.3d 103, 105 (6th Cir. 1993)

(summary judgment evidence sufficiently established excessive force where prison

guard “placed [plaintiff] in a ‘compliance hold,’ slammed him against a wall and the

jail's floor, handcuffed him and ‘stomped’ on his back and legs”); Cf. Cowart v. Erwin,

837 F.3d 444, 454 (Sth Cir. 2016) (rejecting defendant’s qualified immunity defense

and affirming jury's excessive force verdict where defendant punched plaintiff twice

in the face after plaintiff was “restrained and non-threatening”; “We have little

difficulty concluding that in 2009, the time of the incident, it was well-established, in

sufficiently similar situations, that officers may not ‘use gratuitous force against a

prisoner who has already been subdued ... for] incapacitated.”).2

2 See also Perez v. Collier, No, 20-20036, 2021 WL 4095268, at *4 (5th Cir. Sept. 8, 2021)

(“Under Perez's version of the facts, he was handcuffed and complying with the officials’

orders to return to his cell when they punched him, gouged his eye, and twisted his fingers.

All reasonable officials in these circumstances would have known that this conduct violated

Perez's Eight Amendment rights.”); Chacon v. York, 484 F. App'x 330, 332 (5th Cir. 2011)

(“By declaration made under penalty of perjury, Chacon asserted that Deputy York used

unnecessary force against him without provocation and that he suffered a laceration above

his right eyelid requiring at least one stitch and a staple. ... Because it is not possible to

13

In sum, on December 21, 2017, Plaintiff maintained a clearly established right

to be free from “the unnecessary and wanton infliction of pain” at the hands of Lt.

Stark. Hudson, 503 U.S. at 5. An officer confronted with the same circumstances

presented here would have known that it was unlawful to forcibly throw a restrained

compliant prisoner towards a known hazard and thereafter mace him and beat him

when he was in a prone position. Yet, here an evidentiary basis exists to conclude

that this is exactly what happened. Accordingly, Lt. Stark’s qualified immunity

defense fails, and Plaintiff's excessive force claim must be submitted to the jury.

b. Retaliation

Plaintiffs retaliation claim is interwoven with his excessive force claim.

Specifically, Plaintiff contends that Lt. Stark threw him into the shower to “punish”

him for having “complained to ranking officers about ... [Lt. Stark] beating ... Inmate

Miller.” (Doc. 48 at pp. 12, 17).

“The law of this circuit is clearly established ... that a prison official may not

retaliate against ... an inmate for ... complaining to a supervisor about a guard's

misconduct.” Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995).

“To state a valid claim for retaliation under section 1983, a prisoner must

allege (1) a specific constitutional right, (2) the defendant's intent to retaliate against

conclude as a matter of law, considering the evidence in the light most favorable to Chacon,

that York acted in an objectively reasonable manner-which would entitle him to qualified

immunity-the district court erred in granting the motion for summary judgment for York on

the excessive force claim.”).

14

the prisoner for his or her exercise of that right, (8) a retaliatory adverse act, and (4) |

causation.” Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999).

Again, viewing all evidence and making all reasonable inferences in Plaintiffs

favor, Plaintiff overcomes qualified immunity. First, as stated, the Constitution

protects an inmate’s right to “complain{] to a supervisor about a guard's misconduct.”

Woods, 60 F.3d at 1164. Here, Plaintiffs December 21 encounter with Lt. Stark began

when Piaintiff objected to Lt. Stark’s treatment of Inmate Miller. According to Inmate

Bell, Plaintiffs objection was calm and included complaining to Capt. Johnson—a

higher ranking officer—in Lt. Stark’s presence that “Lt. Stark [was] using excessive

force.” Capt. Johnson, on the other hand, states that Plaintiff was “unruly” and

“attempt[ing] to motivate a disturbance.” Plainly, a material dispute exists regarding

whether Plaintiff was engaged in a constitutionally protected complaint, or an

unprotected attempt to provoke an insurrection. Cf. Jackson v. Cain, 864 F.2d 1235,

1248 (5th Cir. 1989) (“A prison inmate is entitled to his First Amendment right to

freedom of expression so long as it is not inconsistent with his status as a prisoner

and does not adversely affect a legitimate state interest.”).

Second, the evidence establishes a genuine dispute regarding whether Lt.

Stark was motivated by retaliatory intent. Again, Inmate Bell states that Plaintiff

made his complaint to Capt. Johnson in Lt. Stark’s presence. Sgt. Williams states

that minutes later Lt. Stark took Plaintiff to the ground then escorted him (without

incident) to the shower. Inmates Chesne and Dunn, by contrast, state that Lt. Stark

15

threw Plaintiff into the shower when Plaintiff was compliant and no longer resisting,

sprayed him with mace, beat him, and “told him [to] shut the f*** up before they kick

his a** some more.” (Doc. 43-7 at p. 1; see also Doc. 48-9 at p. 1). It is not the Court’s

role here to decide between these conflicting accounts.

Third, a dispute exists regarding whether Lt. Stark took a retaliatory adverse

act against Plaintiff. An actionable retaliatory act is any act “capable of deterring a

person of ordinary firmness from further exercising his constitutional rights.” Morris

v. Powell, 449 F.3d 682, 686 (5th Cir. 2006). Such acts specifically include acts that

endanger the health or well-being of an inmate. See id. at 687 (“There is no doubt

that transfer to a more dangerous prison as a penalty for the exercise of constitutional

rights has the potential to deter the inmate from the future exercise of those rights.”).

Here Lt. Stark is alleged to have forcibly thrown Plaintiff into the shower while

Plaintiff was handcuffed, maced him, and beat him, causing serious bodily harm.

Subjected to the same treatment, “a person of ordinary firmness” certainly would be

deterred from exercising his right to complain of Lt. Stark’s conduct again.

Finally, a dispute exists regarding causation. Causation requires “direct

evidence of motivation or, the more probable scenario, ... a chronology of events from

which retaliation may plausibly be inferred.” Woods, 60 F.3d at 1166. Here, a matter

of minutes passed between when Plaintiff complained to Capt. Johnson of Lt. Stark’s

treatment of Inmate Miller, and Lt. Stark’s alleged aggression in the shower. This

tight timeline coupled with Lt. Stark’s alleged threat “to shut the f*** up before they

16

kick his a** some more” establishes a plausible basis to conclude that Plaintiffs

complaint to Capt. Johnson was the but for cause of Lt. Stark’s alleged aggression.

In sum, on December 21, 2017, Plaintiff also enjoyed a clearly established right

to “complain([] to a supervisor about a guard's misconduct” without fear of reprisal.

Woods, 60 F.3d at 1164. An officer confronted with the same circumstances presented

here would have known that it was unlawful to physically injure—z.e., “punish” —a

prisoner for properly complaining of his misconduct. Yet, again, there is an

evidentiary basis to conclude that this is exactly what happened. Accordingly, Lt.

Stark’s qualified immunity defense again fails, and Plaintiff's retaliation claim also

must be submitted to the jury.

2. A substantial dispute exists regarding Plaintiff's state

law claims

Defendants’ challenge to Plaintiffs state law negligence claim is easily

dispatched. Louisiana employs the “duty-risk analysis” to determine liability for

negligence under La. C.C. art. 2315. Landers v. USIC Locating Servs., Inc., 2020-0890

(La. App. 1 Cir. 4/26/21), 324 So. 3d 1070, 1078.

For lability to attach under a duty-risk analysis, a plaintiff must prove

five separate elements: (1) the defendant had a duty to conform his

conduct to a specific standard of care (or the defendant owed a duty of

care to the plaintiff) (the duty element); (2) the defendant failed to

conform his conduct to the appropriate standard (or breached the

requisite duty) (the breach element); (8) the defendant's substandard

conduct was a cause-in-fact of the harm or the plaintiff's injuries (the

cause-in-fact element); (4) the risk of harm was within the scope of

protection afforded by the duty breached (the scope of the duty, scope of

protection or legal cause element); and (5) actual damages (damages

element)

17

Id.

Here, as set forth above, Lt. Stark owed Plaintiff constitutional duties to

refrain from retaliation and malicious infliction of pain. Lt. Stark also owed Plaintiff

state law duties to refrain from corporal punishment, La. R.S. § 15:829, and “to use

reasonable care in preventing harm after [he] had reasonable cause to anticipate it.”

Breaux v. State, 326 So. 2d 481, 482 (La. 1976). A genuine contest exists regarding

whether Lt. Stark violated these duties by throwing Plaintiff (while handcuffed) into

the shower, causing Plaintiff to trip over a known hazard (the concrete partition), and

then assaulted him, in order to punish Plaintiff for complaining of his prior treatment

of Inmate Miller, resulting in multiple broken bones (wrist and back).

Hssentially the same evidence creates a genuine dispute regarding Plaintiff's

battery claim.

The intentional tort of battery is a harmful or offensive contact with a

person, resulting from an act intended to cause the plaintiff to suffer

such a contact. The defendant's intention need not be malicious nor need

it be an intention to inflict actual damage. It is sufficient if the defendant

intends to inflict either a harmful or offensive contact without the

other's consent. In order to prove a prima facie case in an action for

damages allegedly caused by the tortious conduct of the defendant, the

plaintiff must prove three things: fault, causation, and damages.

Zimmerman v. Progressive Sec, Ins. Co., 49,982 (La. App. 2 Cir. 8/12/15), 174 So. 3d

1230, 1285, writ denied, 2015-1955 (La. 11/80/15), 184 So. 3d 36.

Here, as stated, a genuine dispute exists regarding whether Lt. Stark

deliberately and maliciously threw Plaintiff into the shower and then beat him,

intending to punish him for making a complaint, resulting in immediate and

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substantial injuries. Further, a genuine dispute exists regarding whether Plaintiff

tacitly “consented” to the battery—by continuing to resist Lt. Stark even after the

initial takedown—or whether Plaintiff had, by that point, already submitted to Lt.

Stark’s control. See Guillot v. Guillot, 2014-364 (La. App. 3 Cir. 12/23/14), 161 So. 3d

841, 850 (explaining that the plaintiffs consent is a defense to intentional battery).

It follows that LDPSC’s sole objection to respondeat superior liability—that Lt.

Stark “committed no tortious acts” (Doc. 41 at | 7; see Doc. 41-1 at p. 18-21)—also

fails. Plainly, the same evidence establishing a substantial dispute regarding Lt.

Stark’s liability for negligence and battery also establishes a substantial dispute

regarding LDPSC’s vicarious liability as Lt. Stark’s employer. See La. C.C. art. 2317:

Breaux, 326 So. 2d at 482 (“the state is ... liable for its employee's failure to use

reasonable care in preventing harm after they had reasonable cause to anticipate

it.”); cf. Hughes v. Savell, 902 F.2d 376, 379 (6th Cir. 1990) (“Although the state does

not insure inmates against personal attacks, the state is responsible when its

employees fail to use reasonable care to protect inmates from injuries inflicted by

other prisoners which the authorities know or have reason to anticipate will occur. ...

Those cases which do consider the responsibility of individual state prison employees

routinely impute the employee's negligence to the state for purposes of assigning

hiability.”); see also Payne v. Tonti Realty Corp., 04-752 (La. App. 5 Cir. 11/30/04), 888

So. 2d 1090, 1094 “An employer may be vicariously liable for the intentional acts of

its employees.” (citing La. C.C. art. 2320), writ denied 2005-0192 (La. 4/1/05), 897 So.

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2d 606.

II. CONCLUSION

Accordingly,

IT IS ORDERED that Defendants’ Motion For Summary Judgment (Doc.

41) be and is hereby DENIED.

| rh

Baton Rouge, Louisiana, this day of November, 2022

R-~-

JUDGE BRIAN A. bag SON

UNITED STATES BESTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

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