The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
TONY JOSEPH TABOR #478277 CIVIL ACTION NO. 17-cv-0907
VERSUS JUDGE ELIZABETH E. FOOTE
JERRY GOODWIN, ET AL. MAGISTRATE JUDGE HORNSBY
MEMORANDUM ORDER
Now before the Court is a Motion by pro se Plaintiff Tony Tabor (“Plaintiff”) to Alter a
Judgment pursuant to Federal Rule of Civil Procedure 59(e). [Record Document 74]. For the
reasons discussed below, this motion is DENIED.
Plaintiff was an inmate housed at David Wade Correctional Center when, he alleges,
Defendant Major Rodrick Malcolm (“Malcolm”) twice wrongfully sprayed him with a chemical
agent. Record Document 71, p. 1. Plaintiff brought claims under 42 U.S.C. § 1983 against Malcolm
and several other prison and state officials, alleging violations of his First and Eighth Amendment
rights. Record Documents 13, p.1; 77, p. 1. Malcolm, the last defendant remaining in the case,
filed a motion for summary judgment on April 5, 2019. Record Document 69. Plaintiff did not file
an opposition. Magistrate Judge Hornsby issued a Report and Recommendation (“R&R”)
recommending that Malcolm’s motion should be granted. Record Document 71, p. 6. Plaintiff did
not file an objection to the R&R. The Court then granted the motion for summary judgment and
ordered the Clerk of Court to close this case. Record Document 73. Plaintiff filed the instant motion
the following day. Record Document 74.
Plaintiff states that he was under the care of a doctor on May 24, 2019, and therefore could
not comply with the instructions in the R&R issued on May 1, 2019, to file written objections
within 14 days of being served with the R&R. /d. In another filing requesting an extension of time
to file an objection, Plaintiff states that he was under a doctor’s care from April 10 through August
12, 2019, during which time he could not read, write, or think clearly because of a head injury and
could not write because of a cut on his lower arm. Record Document 75. The Court agrees that
such injuries would seem to prevent Plaintiff from timely filing an opposition to the motion for
summary judgment and/or an objection to the R&R. Although Plaintiff provides no evidence to
support his claim that he was too ill to file timely responses, the Court will accept this claim as
true for the purposes of this motion and evaluate Plaintiff's opposition as if it had been timely
filed.
After reviewing Plaintiffs opposition, the Court finds that it contains no argument or
evidence justifying a departure from the Court’s previous order granting Malcom’s motion for
summary judgment and closing this case. Record Document 73. Plaintiff asserts that “policy
clearly states that the [chemical agent] should only be used when [Plaintiff] is of [sic] a physical
danger to himself or to others.” Record Document 77, p. 1. However, Plaintiff does not provide
the Court with any additional information regarding this alleged policy or any citation to the policy
itself. Plaintiff also cites some case law that raises questions as to whether Malcolm was justified
in spraying Plaintiff with a chemical agent. Id. at 2; see Treats v. Morgan, 308 F.3d 868, 872 (8th
Cir. 2002) (“The law recognizes that order and discipline are important in running a correctional
institution, but that does not authorize the arbitrary use of force, nor does it justify punitive use of
force on difficult inmates not posing a real threat to other persons or raising security concerns.”)
(internal citations omitted). Although relevant, this case law is not enough to overcome Malcolm’s
qualified immunity defense.
Malcolm argues that he is entitled to qualified immunity because Plaintiff has failed to
allege any specific acts by Malcolm that violated Plaintiff's clearly established constitutional
rights. Record Document 69-3, p. 4. When a government official such as Malcolm asserts qualified
immunity as a defense, the plaintiff is then responsible for rebutting that defense by establishing
that the official’s alleged conduct violated clearly established law and that genuine issues of
material fact exist regarding the reasonableness of the official’s conduct. Gates v. Tex. Dep’t of
Protective and Regulatory Servs., 537 F.3d 404, 419 (Sth Cir. 2008). In his opposition, Plaintiff
does not rebut the defense of qualified immunity. Instead, Plaintiff argues that qualified immunity
does not apply to this case because he is suing Malcolm in his official capacity. Record Document
77, p. 2. Therefore, because Plaintiff has failed to respond to Malcom’s qualified immunity
defense, the Court will not alter its judgment granting Malcolm’s motion for summary judgment
and closing this case. See Record Document 73.
IT IS ORDERED that Plaintiff's Motion to Alter Judgment [Record Document 74] is
hereby DENIED.
IT IS FURTHER ORDERED that Plaintiff's Motion to Compel [Record Document 79]
is hereby DENIED as moot.
THUS DONE AND SIGNED at Shreveport, Louisiana, this the / SM day of
January, 2020.
ELIZABET} OTE
UNITED STAT oy