The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
KEVON ROBINSON CASE NO. 2:20-CV-01042
VERSUS JUDGE JAMES D. CAIN, JR.
HUNTER CLOUD ET AL MAGISTRATE JUDGE LEBLANC
MEMORANDUM RULING
Before the Court is a “Motion for Summary Judgment” (Doc. 68) filed by
Defendants, Sgt. Hunter Cloud, Sgt. Zachary LaCaze, Sgt. Matthew Lovejoy, Major Selten
Manuel, and the State of Louisiana, through the Louisiana Department of Public Safety
and Corrections, who move the Court to grant summary judgment in their favor pursuant
to Rule 56 of the Federal Rules of Civil Procedure, dismissing with prejudice, Plaintiff’s
claims brought under 42 U.S.C. § 1983 and under state law.
FACTUAL STATEMENT
During the relevant time period, Plaintiff, Kevon Robinson, was incarcerated at
Allen Correctional Center by the Louisiana Department of Corrections. Plaintiff alleges
that on September 5, 2019, inmates were being escorted to their cells (cell 12) on Mars C1
Tier by correctional officers, Lovejoy and Cloud.1 In the process of cell 12 being opened,
cell 13 was opened. Plaintiff was inside of cell 13. Plaintiff called for cell 13 to be closed.
It is disputed as to whether Plaintiff stepped out of his cell, and/or he looked out of his cell
and called for cell 13 to be closed. It is also disputed as to the statement Plaintiff may or
1 Defendant’s exhibit 1, ¶ 9.
may not have made regarding closing cell 13. The rest of the story that resulted in an
altercation between Plaintiff and the correctional officers allegedly causing Plaintiff
physical injury is highly disputed.
SUMMARY JUDGMENT STANDARD
A court should grant a motion for summary judgment when the movant shows “that
there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56. The party moving for summary judgment is initially
responsible for identifying portions of pleadings and discovery that show the lack of a
genuine issue of material fact. Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995).
The court must deny the motion for summary judgment if the movant fails to meet this
burden. Id.
If the movant makes this showing, however, the burden then shifts to the non-
moving party to “set forth specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quotations omitted). This
requires more than mere allegations or denials of the adverse party's pleadings. Instead, the
nonmovant must submit “significant probative evidence” in support of his claim. State
Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). “If the evidence is
merely colorable, or is not significantly probative, summary judgment may be granted.”
Anderson, 477 U.S. at 249 (citations omitted).
A court may not make credibility determinations or weigh the evidence in ruling on
a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000). The court is also required to view all evidence in the light most favorable
to the non-moving party and draw all reasonable inferences in that party’s favor. Clift v.
Clift, 210 F.3d 268, 270 (5th Cir. 2000). Under this standard, a genuine issue of material
fact exists if a reasonable trier of fact could render a verdict for the nonmoving party.
Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).
LAW AND ANALYSIS
Defendants argue that they are entitled to qualified immunity, that they used
reasonable force, and that Plaintiff’s injuries are de minimis, and that Plaintiff’s failure to
protect claim must fail because Plaintiff cannot prove deliberate indifference. Regarding
Plaintiff’s state law claims, Defendant argue that because the standard for Louisiana’s state
law claims are the same as constitutional claims, Plaintiff’s excessive force claim fails, and
Plaintiff’s malicious prosecution claim is moot.
Qualified immunity
“A qualified immunity defense serves to shield a government official from civil
liability for damages based upon the performance of discretionary functions if the official’s
acts were objectively reasonable in light of then clearly established law. Drew v. Town of
Church Point, 2018 WL 1973247 (W.D. La. 2018) (quoting Atteberry v. Nocona Gen.
Hosp., 430 F.3d 245, 253 (5th Cir. 2005). Qualified immunity is an “expression of policy
designed to aid in the effective functioning of government” and recognizes that an officer
acting reasonably may make a mistake and as a result acknowledges that “it is better to risk
some error than not decide at all.” Sheuer v. Rhoades, 416 U.S. 232, 94 S.Ct. 1683 (1959).
“Qualified immunity protects ‘all but the plainly incompetent or those who knowingly
violate the law.’” (quoting Malley v. Briggs, 475 U.S. 335, 341 106 S.Ct. 1092 (1986).
The doctrine of qualified immunity attempts to balance two competing societal
interests: “the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment, distraction, and liability
when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231
(2009). These interests combine to create an affirmative defense that shields public officials
sued in their individual capacities “from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
A two-fold inquiry is utilized to determine whether qualified immunity is
applicable: (1) whether the plaintiff has alleged a violation of a clearly established
constitutional right; and (2) if so, whether the officer’s conduct was objectively reasonable.
Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994); Hare v. City of Corinth, 135 F.3d
320, 325 (5th Cir. 1998).
With respect to the first factor, a constitutional right “is clearly established if, in
light of pre-existing law, the unlawfulness is apparent.” Id. Even if the government
officials’ conduct violated a clearly established right, the official is nonetheless entitled to
qualified immunity if his conduct was objectively reasonable. Hernandez Ex. Rel.
Hernandez v. Texas of Protective and Regulatory Services, 380 F.3d 872, 879 (5th Cir.
2004). Thus, the doctrine “shields an officer from suit when they make a decision that,
even if constitutionally deficient, protects the officer from the hazy border between
excessive and acceptable force.” Brousseau v. Haugen, 543 U.S. 194, 197, 125 S.Ct. 596,
599 (2004), citing Saucier v. Katy, 533 U.S. 194, 206, 121 S.Ct. 2151.
In Mangieri, supra, the Fifth Circuit held that the objective reasonableness prong of
qualified immunity analysis is a question of law properly addressed by the trial court in the
context of summary relief, not the jury, stating that “a district court errs in ‘holding that the
objective reasonableness’ prong of the qualified immunity standard is generally a factual
question for the jury. See Mangieri, 29 F.3d at 1015-1016.
A good-faith assertion of qualified immunity alters the usual summary judgment
burden of proof, shifting it from the defendant-movant to the plaintiff-non-movant to show
that the defense is not available. Cass v. City of Abilene, 814 F.3d 721, 728 (5th Cir. 2016)
(quoting Trant v. Wade, 776 F.3d 368, 376 (5th Cir. 2015)). Though the plaintiff bears the
burden of negating the availability of qualified immunity, all inferences are still drawn in
the plaintiff’s favor. Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).
Excessive force
Defendants argue that they used reasonable force to maintain order and discipline,
to prevent escape, and that there was no deliberate indifference on their part.
Prison officials “may not ... use excessive physical force against prisoners” and must
“take reasonable measures to guarantee the safety of the inmate.” Gates v. Tex. Dep’t of
Protective and Regulatory Servs., 537 F.3d 404, 419 (5th Cir. 2008). For an inmate to
prevail on an Eighth Amendment claim, he is required to show both that (1) the alleged
deprivation was objectively sufficiently serious in nature, and (2) the officials subjectively
acted with a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 298 (1991).
Force is excessive and violates the Eighth Amendment if applied maliciously and
sadistically for the very purpose of causing harm rather than in a good faith effort to
maintain or restore discipline. Hudson v. McMillian, 503 U.S.1, 112 S.Ct. 995 (1992).
Defendants assert that they physically restrained Plaintiff after he had left his cell
and refused an order to return to his cell. Defendants assert that Plaintiff threatened them
with harm and then struck Sgt. Cloud on the face. Defendants remark that Plaintiff had a
history of violent and defiant behaviors and had expressed homicidal ideation. Thus,
Defendants argue that Plaintiff posed a threat to the safety and order of the institution when
he attempted to leave his cell, refused direct orders, threatened Defendants, and physically
harmed one of the Defendants. Defendants contend that Plaintiff was making an attempted
escape.
To the contrary, Plaintiff aggressively disputes Defendant’s rendition of the events
that occurred. Plaintiff refers the Court to the video, and video pictures, which Plaintiff
contends tells the real story. Plaintiff asserts that he never left his cell, but only poked his
head out of the cell, along with one foot, but never left his cell. Plaintiff also asserts that
Cloud entered Plaintiff’s cell, while Lovejoy deserted inmate Derrick Leonard, leaving him
alone on the Tier in front of cell 12, then Lovejoy followed Cloud directly into cell 13—
Plaintiff’s cell. LaCaze walks around inmate Derrick Leonard and followed Lovejoy
directly into Plaintiff’s cell.
Then, cell 12 opens and while Cloud, LaCaze and Lovejoy assault Plaintiff in his
cell, inmate Steven Oliver, Leonard’s cellmate in cell 12 walked through the open door
onto the Tier. Shortly thereafter, Selten Manuel runs in front of cell 6 toward cell 13.
Trailing behind is Officer Jackson.
As to the alleged verbal threats, Plaintiff asserts that he was out of his cell for about
one second and only stated to “Close cell 13.”2 Plaintiff argues that he made no verbal
threat toward Defendants.
Next, Plaintiff asserts that he did not attack Cloud, but that Cloud attacked him,
further noting that all criminal charges were dismissed. Plaintiff contends there are
numerous irregularities in statements made by Defendants, suggesting that their sworn
affidavits are deceitful. Plaintiff encourages the Court to watch the video that Defendants
have submitted as summary judgment evidence and take notice of the irregularities in
Defendants’ affidavits and the video of the incident. Plaintiff argues that there is a genuine
issue of material fact as to whether or not Plaintiff actually attacked Cloud, whether he was
attempting an escape, and whether he refused a direct order.
De minimis injuries
The Eighth Amendment’s prohibition against cruel and unusual punishment
necessarily excludes from constitutional recognition de minimis uses of physical force,
provided that such force is not of a sort “repugnant to the conscience of mankind.” Hudson,
supra. While an inmate-plaintiff need not show a significant injury to prevail on a claim of
excessive force, a necessary element of an excessive force claim is proof of some injury
resulting from the use of such force. Knight v. Caldwell, 970 F.2d 1430 (5th Cir. 1992),
cert. denied, 507 U.S. 926, 113 S.Ct. 1298 (1993). However, the extent of an injury may
also be an indication of the amount of force applied. Wilkins v. Giddy, 559 U.S. 34, 37-38,
2 Plaintiff’s exhibit 1, Robinson Declaration; Plaintiff’s exhibit 2, Derrick Leonard Declaration; Plaintiff’s exhibit 3,
Oliver Declaration.
130 S.Ct. 1175, 1178 (2010) (citing Hudson, supra) (quoting Whitley v. Albers, 475 U.S.
312, 321, 106 S.Ct. 1078 (1986)).
Generally, “scrapes, scratches, cuts, abrasions, bruises, pulled muscles, back aches,
leg aches, etc.” do not pass the de minimis threshold. Outley v. Batiste, 2020 WL 6789326,
at *3 (M.D. La. Nov. 18, 2020), quoting Luong v. Hatt, 979 F.Supp. 481, 486 (N.D. Tex.
Sept. 11, 1997).
Defendants argue that Plaintiff did not sustain more than de minimis injuries. After
the incident, a medical exam showed that Plaintiff sustained “redness” to the inside of his
lower lip, and despite claims of back pain, all medical assessments of his back and an x-
ray of his lumbar spine were within normal limits.3 Additionally, Defendants suggest that
Plaintiff’s complaints of back pain predated the incident and are not supported by objective
evidence. Defendants argue that Plaintiff’s alleged injuries do not rise to the level of being
constitutionally actionable.
Plaintiff argues that Defendants have improperly discounted Plaintiff’s claim by
failing to consider whether Plaintiff’s constitutional rights were violated, and if so, the jury
may still award both nominal and punitive damages. In Hudson v. McMillian, the Supreme
Court ruled that “the core judicial inquiry in an excessive force case is not whether a certain
quantum of injury was sustained, but rather whether force was applied in a good-faith effort
to maintain or restore discipline, or maliciously and sadistically to cause harm.” 503 U.S.
1, 7, 112 S.Ct. 995 (1993). “Nominal damages . . . are the appropriate means of
3 Defendant’s exhibit 5.
‘vindicating’ rights whose deprivation has not caused actual, provable injury.” Memphis
Community Sch. Dist. v. Stachura, 477 U.S. 299, 308 n.11, 106 S.Ct. 2537 (1986). Thus,
Plaintiff argues that if the jury finds Defendants violated Plaintiff’s constitutional rights,
but he had not suffered any actual injuries, the jury may still award both nominal and
punitive damages.
Failure to intervene
Plaintiff also brings a claim for failure to intervene. Plaintiff asserts that LaCaze
and Lovejoy followed Cloud into Plaintiff’s cell, and instead of stopping him, they joined
him. Defendant agues that these Defendants used only the amount of force necessary to
bring Plaintiff into compliance and to maintain order after Plaintiff struck an officer.
Specifically, as to Manuel, Defendants assert that he did not know about the subject
incident until shortly afterward.
In Hale v. Townley, the court held that “an officer who is present at the scene and
does not take reasonable measures to protect a suspect from another officer’s use of
excessive force may be liable under section 1983.” 45 F.3d 919 (5th Cir. 1995).
State law battery, excessive force, and malicious prosecution
Tort law liability in Louisiana is based on Louisiana Civil Code article 2315. A
battery is defined as an intentional offensive conduct with another person without that
person’s consent. Caudle v. Betts, 512 so.2d 389, 391 (La. 1987). In a civil battery case,
Plaintiff bears the burden of proof. Frazer v St. Tammany Parish School Board, 774 So.2d
1227, 1234 (La. App. 1 Cir. 12/22/00), writ denied, 787 So.2d 1001 (La. 3/23/01).
While respondeat superior does not apply to § 1983 claims, it does attach to the torts
of an employer’s officers. Penn v. St. Tammany Parish Sheriff’s Office, 843 So.2d 1157,
1161 (La.App. 1 Cir. 4//02/03).
Generally, battery claims fall under the duty/risk analysis for negligence claims.
Stroik v. Ponseti, 699 So.2d 1072 (La.9/9/97). Under that standard, the plaintiff must prove
“(1) the conduct in question was the cause-in-fact of the resulting harm; (2) [the] defendant
owed a duty of care to plaintiff; (3) the requisite duty was breached by the defendant; [and]
(4) the risk of harm was within the scope of protection afforded by the duty breached.” Id.
at 1077. In determining whether there was a breach of duty, the court should apply the
factors enumerated in Kyle v. City of New Orleans, 353 So.2d 969 (La. 1977).
Plaintiff asserts that Cloud, LaCaze, and Lovejoy entered the inmate’s cell for no
penological purpose. Plaintiff argues that these Defendants can present no argument or
evidence as to why they needed to extract Plaintiff from his cell by force or otherwise.
Plaintiff notes that Defendants have falsely suggested that Plaintiff exited his cell and
refused to go back in his cell. Plaintiff also relies on the Disciplinary Rules for Adult
Offenders,4 the Use of Force rules,5 and the Employee Manual.6 The Department
Regulations No. OP-A-16, “Use of Force” expressly states that uses of force that are
4 Plaintiff’s exhibit 4.
5 Plaintiff’s exhibit 5.
6 Plaintiff’s exhibit 21, Rule 3, pp. 39-40.
considered abuse include corporal punishment,7 unnecessary force,8 and excessive
force.910
“The use of force by law enforcement officers is thus scrutinized by considering the
“reasonable force” standard established by Louisiana Code of Criminal Procedure art. 220.
Factors in determining whether the force exerted was reasonable under the circumstances
entail: the known character of the arrestee; the risks and dangers faced by the officer; the
nature of the offense or behavior involved; the chance of escape if the particular means are
not employed; the existence of alternative methods of arrest or subduing the arrestee; the
physical strength, size and weaponry of the officers as compared to that of the arrestee; and
the exigencies of the moment. See Kyle v. City of New Orleans, 353 So.2d 969, 973
(La.1977). Excessive force transforms ordinarily protected use of force into an actionable
battery, rendering the defendant officer and his employer liable for damages. Ross v. Sheriff
of Lafourche Parish, 479 So.2d 506, 511 (La.App. 1st Cir. 1985).
Plaintiff argues that because Sgt. Cloud, Lovejoy, LaCaze and Manuel were
employees of the States of Louisiana, the Department of Corrections is answerable for the
battery and assault under a theory of vicarious liability. Again, Defendants argue that they
used reasonable force to prevent an escape, and because they felt threatened.
As to Plaintiff’s malicious prosecution claims, Defendants contend that this claim
is moot because the indictment in the criminal case against Plaintiff was dismissed. A claim
7 The inflicting of physical pain on an offender for punishment is absolutely forbidden.
8 Force that cannot reasonably be justified by the facts of the situation is absolutely forbidden.
9 Force beyond that which is reasonable and apparently necessary to control a situation where some force is needed
is absolutely forbidden.
10 Plaintiff’s exhibit 21.
for malicious prosecution requires a plaintiff to establish six elements: (1) the
commencement or continuance of an original criminal or civil judicial proceeding; (1) its
legal causation by the present defendant in the original proceeding; (3) its bona fide
termination in favor of the present plaintiff; (4) the absence of probable cause for such
proceeding; (5) the presence of malice therein; and (6) damages conforming to legal
standards resulting to plaintiff. Phillips v. L. Brands Serv. Co., L.L.C., 82 F.4th 291, 302
(5th Cir. 2023) (quoting Lemoine v. Wolfe, 168 So.3d 362, 367 (La. 2015)).
Here, Plaintiff has not presented any summary judgment evidence to create a
genuine issue of material fact for trial as to his malicious prosecution claim. Defendants
rely on its dismissal of the criminal indictment, which suggests that the prosecution of
Plaintiff was without malice. As such, the Court will dismiss this claim.
CONCLUSION
The Court has reviewed the video tape of the incident, without audio, and finds that
there is a genuine issue of material fact for trial as to whether excessive force was used to
maintain order and/or prevent an escape, failure to intervene claim, as well as Plaintiff’s
tort claim of battery. Where an officer’s qualified immunity depends on the resolution of
genuine factual disputes, summary judgment is improper. Washington v. Thomas, 2023
WL 4704142, at *1 (5th Cir. July 24, 2023). The video reflects that Plaintiff may have
taken one step for one second outside of his cell; it does not show that he was attempting
an escape or that he completely walked out of his cell. The video does not show what
occurred inside of the cell, nor is there audio for the Court to determine if Sgt. Cloud
ordered Plaintiff back into his cell. However, taking that as true, the video reflects that
Plaintiff immediately complied—within one second. As such, Plaintiff has submitted
summary judgment evidence that creates a genuine issue of material fact for trial as to
whether Defendants engaged in conduct that violated a clearly established law prohibiting
excessive force. The Court will grant Defendant’s Motion for Summary Judgment to
dismiss Plaintiffs state law malicious prosecution claim and deny Defendant’s Motion for
Summary Judgment as to the remaining claims.
THUS DONE AND SIGNED in Chambers on this 18th day of April, 2024.
UNITED STATES DISTRICT JUDGE
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