Primus v. Paretti

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

KENNETH WAYNE PRIMUS CIVIL ACTION

VERSUS NO. 24-165

CAPTAIN PARETTI, ET AL. SECTION: “J”(3)

REPORT AND RECOMMENDATION

Defendants Daniel Fleischman, Rhonda Simmons, Stephen Paretti,

Lieutenant Aaron Mendow, Corporal Van Halen, Corporal Hannah Kairdolf, Deputy

Michael Cartner, Deputy Brandon Dussouy and Deputy Julian Harrington filed a

motion to dismiss under Rule12(b)(6) of the Federal Rules of Civil Procedure.1

Because defendants filed records relating to an investigation of Primus’s complaint

under the Prison Rape Elimination Act of 2003 (“PREA”), 42 U.S.C. § 15601 et seq.,

as well as jail surveillance footage, the Court converted the motion to one for

summary judgment. The parties received notice of the conversion, defendants

received an opportunity to supplement their motion, and Primus was provided with

additional time to respond.2

Defendants filed a supplemental memorandum along with a statement of

undisputed facts and additional evidence.3 Primus opposed the original motion.4. He

filed his own statement of disputed5 and a second opposition.6 The sole evidence

1 R. Doc. 78.

2 R. Doc. 89.

3 R. Doc. 96.

4 R. Doc. 92.

5 R. Doc. 120.

6 R. Doc. 123.

submitted by Primus is jail surveillance footage related to an incident of October 11,

2023.7 Having considered the memoranda, the record, and the applicable law, it is

recommended that defendants’ motion for summary judgment be granted.

I. Background

Primus, a state pretrial detainee, filed this pro se and in forma pauperis civil

action under 42 U.S.C. § 1983. In his third amended complaint, he named as

defendants Warden Fleischman, Assistant Warden Simmons, Captain Paretti,

Lieutenant Mendow, Corporal Kairdolf, Corporal Van Halen, Deputy M. Cartner,

Deputy B. Dussouy, Deputy Harrington, and Nurse McKnight.8 The allegations in

his third amended complaint mainly relate to incidents that occurred on three dates:

October 11, 2023 (sexual assault), November 1, 2023 (excessive force), and November

21, 2023 (confinement with alleged perpetrator of October 11 assault).

II. Standards of Law

A. Summary Judgment

Summary judgment is appropriate if a 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(a). A fact is “material” when its resolution might affect the

case’s outcome under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

7 R. Doc. 115.

8 R. Doc. 69. Defendant McKnight is not subject to the motion for summary judgment.

Although Primus originally named as defendants Sheriff Randy Smith, Lieutenant

Moore, Sergeant Harrison, and Travis Martin, they are no longer parties to the

operative complaint. The Clerk of Court should update the docket sheet to terminate

their names.

248 (1986). “A genuine dispute of material fact exists ‘if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.’” S. Ins. Co. v.

Affiliated FM Ins. Co., 830 F.3d 337, 343 (5th Cir. 2016) (quoting Anderson, 477 U.S.

at 248). Courts resolve factual controversies in favor of the nonmoving party. An

actual controversy, however, exists only “when both parties have submitted evidence

of contradictory facts.” Guillot ex rel. T.A.G. v. Russell, 59 F.4th 743, 750 (5th Cir.

2023) (quotation omitted). “‘If the evidence is merely colorable, or is not significantly

probative,’ summary judgment is appropriate.” Cutting Underwater Techs. USA, Inc.

v. Eni U.S. Operating Co., 671 F.3d 512, 517 (5th Cir. 2012) (quoting Anderson, 477

U.S. at 248).

Summary judgment is proper when “a party [] fails to make a showing

sufficient to establish the existence of an element essential to that party’s case, and

on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986). “In such a situation, there can be ‘no genuine issue as to

any material fact,’ since a complete failure of proof concerning an essential element

of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at

322–23. Once the moving party shows “that there is an absence of evidence to support

the non-moving party’s cause,” the nonmoving party must come forward with “specific

facts” showing a genuine factual issue for trial. TIG Ins. Co. v. Sedgwick James of

Washington, 276 F.3d 754, 759 (5th Cir. 2002)(citing Celotex, 477 U.S. 317 at 325).

Congress amended Rule 56(c) in 2010 to “permit[] a party to support or dispute

summary judgment through unsworn declarations, provided their contents can be

presented in admissible form at trial.” Patel v. Texas Tech Univ., 941 F.3d 743, 746

(5th Cir. 2019)(determining that the district court abused its discretion when it

refused to consider unsworn expert reports at summary judgment). But whether

presented by affidavit or unsworn declaration, statements must be based on personal

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

affiant is competent to testify on the matters stated in the affidavit. Fed. R. Civ. P.

56(c)(4). Statements made without personal knowledge are not capable of being

presented in an admissible form at trial. D’Onofrio v. Vacation Publications, Inc., 888

F.3d 197, 208 (5th Cir. 2018). These principles are “particularly relevant where a pro

se plaintiff’s allegations form his entire response in opposition to summary

judgment.” Id. (citing Davis v. Fernandez, 798 F.3d 290, 294–96 (5th Cir. 2019).

B. Section 1983

Section 1983 authorizes claims against a person who, acting under color of

state law, deprived the claimant of any rights secured by the Constitution and the

laws of the United States. See 42 U.S.C. § 1983. The statute is not itself a source of

substantive rights; it merely provides a method for vindicating federal rights

conferred elsewhere. Olabisiomotosho v. City of Hous., 185 F.3d 521, 525 n.3 (5th Cir.

1999). A plaintiff must satisfy three elements to establish § 1983 liability: (1)

deprivation of a right secured by the Constitution or laws of the United States; (2)

occurrence under color of state law; and (3) causation by a state actor. Victoria W. v.

Larpenter, 369 F. 3d 475, 482 (5th Cir. 2004) (citation omitted).

III. Analysis

Primus has alleged claims against defendants in their individual9 and official

capacities. Each will be considered in turn.

A. Defendants are not liable for placing Primus in Cell 2 nor for

failing to detect and intervene in his alleged sexual assault.

Primus alleges that Taylor, another inmate, sexually assaulted him on October

11, 2023, and sues multiple defendants in connection with the incident. Defendants

Fleischman, Simmons, Paretti, and Van Halen, however, had no alleged personal

involvement in the events of October 11, 2023. “Personal involvement is an essential

element of a civil rights cause of action.” Thompson v. Steele, 709 F.2d 381, 382 (5th

Cir. 1983). Thus, these defendants are entitled to summary judgment on that basis

alone.

Primus claims certain other defendants (Mendow, Cartner, Kairdolf, Van

Halen, Dussouy, and Harrington), are liable for placing him in the cell with Taylor,

failing to protect Primus, or failing to intervene during the assault. The unrebutted

evidence, however, confirms that they are not liable under § 1983. In support of

summary judgment, defendants submitted certified copies of Primus’s PREA

complaint, the related Unusual Occurrence report, the extensive investigative report,

and the offense incident report related to the PREA complaint—all of which support

judgment.10 In opposing summary judgment, Primus submitted only limited jail

9 Defendants have invoked their qualified immunity defense, but the Court need not

reach it given the analysis herein.

10 R. Doc. 78-2 at 1–2, R. Doc. 78-3 at 1–11; R. Doc. 78-4 at 1–60; R. Doc. 78-7 at 1–

11; R. Doc. 78-8 at 1–60.

surveillance footage from October 11, 2023.11 The footage confirms the undisputed

fact that Primus was placed in a cell with Taylor, but it does not portray subsequent

events, including the alleged result. In any event, the issue under § 1983 is not

whether a sexual assault occurred, but whether defendants violated the plaintiff’s

constitutional rights relative to the assault.

The Eighth Amendment’s prohibition on cruel and unusual punishment

imposes a duty on prison officials to “‘protect prisoners from violence at the hands of

other prisoners.’” Williams v. Hampton, 797 F.3d 276, 280 (5th Cir. 2015) (citing

Farmer v. Brennan, 511 U.S. 825, 832–83 (1994) (omission in original)). This right

extends to pretrial detainees through the due process clause of the Fourteenth

Amendment. See Hare v. City of Corinth, Miss., 74 F.3d 633, 639 (5th Cir. 1996).

The law does not require that prison officials prevent all inmate-on-inmate

violence. Adames v. Perez, 331 F.3d 508, 512 (5th Cir. 2003). A plaintiff must show

that he was “‘incarcerated under conditions posing a substantial risk of serious harm

and that prison officials were deliberately indifferent to his need for protection.’”

Pogue v. Bello, No. 01-30383, 2001 WL 1467095, at *1 (5th Cir. Oct. 25, 2001) (citation

omitted). Mere negligence in failing to protect a prisoner from assault does not

establish a constitutional violation. Adames, 331 F.3d at 512.

The undisputed evidence shows that Primus and three other inmates (Taylor,

Stapleton, and Parker) shared a rolled cigarette containing an unknown substance.12

11 R. Doc. 115. Defendants stated that they had no objection to the submission of the

jail surveillance video. R. Doc. 116 at 2.

12 R. Doc. 78-4 at 16 (sealed).

They were given medical attention for resulting adverse reactions.13 They were then

referred to a suicide observation area.14 Primus’s last video clip shows him walking,

with assistance of deputies, into suicide observation cell number 2 (“Cell 2”), with the

other three inmates who had shared the cigarette.

Although Primus alleged (without giving any specifics) that the three other

inmates had a history of sexual assault, none of the Cell 2 inmates had a meritorious

PREA complaint filed against them.15 Furthermore, Taylor’s criminal history

includes no charges or convictions for sex-related offenses.16 And, while a pro se

inmate’s unsworn statements may be considered for summary judgment purposes,

Primus’s statement that Taylor had a “reputation” as a sexually aggressive inmate

does not save his claims. Even if Primus could testify as to his subjective belief, there

is no sign that Primus could establish at trial that the defendants knew of Taylor’s

alleged reputation.

Primus’s allegation that the defendants are liable for failing to detect an

alleged sexual assault similarly lacks any record support. Primus alleges that he

awoke in Cell 2 to being sexually assaulted by Taylor –i.e., that Taylor “put a finger

in [his] a------.”17 After Primus first made this claim, Authorities reviewed the

surveillance footage of Cell 2 from Primus’s entry through his release from that cell.18

13 Id.

14 Id.

15 Id. at 19–21.

16 Id. at 20.

17 Id.

18 Id. at 31–34.

They also reviewed a log book, which was consistent with the footage.19 They

concluded the surveillance footage showed that Primus was never on his hands and

knees (the position in which he alleged the assault occurred). Rather, Primus was

lying on the ground with his head facing the back of the cell and his feet near the door

for the first two hours.20 He subsequently sat up and began walking around the cell.21

The surveillance footage corroborated that a deputy was conducting regular periodic

observations.22 None of the deputies or medical staff who came in contact with Primus

observed any sexual act in Cell 2. And none received any reports of such an act from

other inmates.23

In his statement of undisputed facts, Primus continues to claim that Taylor

sexually assaulted him.24 But Primus has set forth no evidence that defendants knew

that a substantial risk of sexual assault existed and then intentionally disregarded

that risk. Farmer, 511 U.S. at 837. To the contrary, the unrebutted evidence shows

that the inmates in Cell 2 were subject to periodic direct observation and video

surveillance. There is no evidence that anyone detected or should have detected the

alleged assault. Under these circumstances, “[t]he failure of employees to notice and

stop the assault constitutes negligence, not deliberate indifference.” Brumfield v.

19 Id. at 31.

20 Id. at 32–34.

21 Id.

22 Id.

23 Id. at 35.

24 Primus appears to suggest that the inmates did not receive smocks. Defendants

have presented uncontroverted evidence, including video footage, that smocks were

provided. R. Doc. 78-4 at 10, 15–16, 19, 25–26, 28, 30, 32, 33.

Natchitoches Par. Det, Ctr., 689 F. App’x 309, 309–10 (5th Cir. 2017) (citation

omitted). Thus, defendants are entitled to summary judgment on the failure-to-

protect and failure-to-intervene claims against them in their individual capacities.

C. Defendants are entitled to summary judgment on the

conditions-of-confinement claims.

Primus alleges that he had neither bedding nor a mattress for an

approximately 24-hour period while in Cell 2.25 To prevail, Primus must first show

that the conditions of his confinement were “so serious as to deprive prisoners of the

minimal measure of life’s necessities, as when it denies the prisoner some basic

human need.” Harper v. Showers, 174 F.3d 716, 720 (5th Cir. 1999) (citation omitted).

Second, he must show that “the responsible prison officials acted with deliberate

indifference to his conditions of confinement.” Id.

Primus has not met this standard. There is no constitutional right to avoid

being placed on suicide watch. Young v. McCain, No. 16-03404, 2017 WL 2373244, at

*8 (E.D. La. April 24, 2017) (citation omitted), adopted, 2017 WL 2371154 (E.D. La.

May 31, 2017), aff’d, 760 F. App’x 251 (5th Cir. 2019). Primus also fails to

demonstrate that he was deprived of “the minimal civilized measure of life’s

necessities” during his temporary placement in Cell 2. See Harper, 174 F.3d at 720.

Primus’s lack of a mattress and blanket for approximately twenty four hours in Cell

2 did not violate his constitutional rights. In short, “[i]t is reasonable for inmates to

be denied clothing and blankets while on suicide watch because it is one of the only

25While defendants argue that Primus failed to exhaust this claim, they present no

evidence to support their argument. R. Doc. 69 at 2, 6–7, 9–12, 14–15, 17–19.

methods of ensuring a suicidal inmates’ safety.” Regalado v. City of Edinburg, No.

7:22-cv-228, 2023 WL 2394299, at *22 (S.D. Tex. Feb. 1, 2023) (citation omitted),

adopted, 2023 WL 2391014 (S.D. Tex. March 7, 2023), reconsideration denied, 2023

WL 11857629 (S.D. Tex. May 2, 2023). For these reasons, Primus’s conditions of

confinement claims should be dismissed.

D. Defendants are entitled to summary judgment on the alleged use

of excessive force on November 1, 2023.

Primus alleges in his third amended complaint that “[o]n November 1, 2023[,]

Captain Paretti shoved me into a doorway of the dorm I was housed in without

warning or provocation from me.”26 He claims that Warden Fleischman and Assistant

Warden Simmons witnessed the assault but “did nothing.”27

Force against a pretrial detainee is “excessive” and therefore a violation of the

Fourteenth Amendment when the force is objectively unreasonable. Kingsley v.

Hendrickson, 576 U.S. 389, 396–97 (2015). To determine objective reasonableness,

courts look to the “facts and circumstances of each particular case.” Id. at 397 (quoting

Graham v. Connor, 490 U.S. 386, 396 (1989)). Courts consider the following non-

exclusive Kingsley factors regarding the reasonableness of the force:

[T]he relationship between the need for the use of force and the amount

of force used; the extent of the plaintiff’s injury; any effort made by the

officer to temper or to limit the amount of force; the severity of the

security problem at issue; the threat reasonably perceived by the officer;

and whether the plaintiff was actively resisting.

26 R. Doc. 69 at 7.

27 Id. at 8.

Id. at 397. “[A] court must also account for the ‘legitimate interests that stem from

[the government’s] need to manage the facility in which the individual is detained,’

appropriately deferring to ‘policies and practices that in th[e] judgment’ of jail officials

‘are needed to preserve internal order and discipline and to maintain institutional

security.’” Id. (alterations in original) (quoting Bell, 441 U.S. at 540 (1979)).

To begin, Primus has not set forth any evidence that he incurred any actionable

injury. He alleges that he received medical attention for an injury,28 but he has not

described that injury nor provided any evidence of it. And, as discussed below, the

video of the incident does not portray a circumstance from which injury could be

inferred. Without showing (nor even alleging) an injury that was more than de

minimis, Primus’s claim fails.

Alternatively, Paretti’s use of force was objectively reasonable.29 Defendants’

evidence, including the surveillance video, shows that the interaction began when

Primus spoke with Paretti, Simmons, and Fleischman in a hallway. Simultaneously,

an active medical emergency in an adjacent area caused multiple deputies and

medical staff to enter and exit the hallway. Paretti terminated the discussion and

ordered Primus to return to his cell. Paretti opened the cell door and commanded

Primus four times to enter while gesturing him to go inside. Primus started to enter,

but then began to turn back. Using only his right hand, which also held a piece of

paper, Paretti guided Primus through the threshold so that the door could be closed.30

28 R. Doc. 69 at 8.

29 R. Doc. 78-2.

30 R. Doc. 78-5 (jail surveillance video); see R. Doc. 78-2 at 2 (affidavit).

Primus claims that he received “no warning” before being “shoved back.”31 The

jail surveillance footage, however, contradicts his claim that he was given no warning

and that he was “shoved back” into the doorway. Craig, 49 F.4th at 409 (citing Scott,

550 U.S. at 380–81). Thus, there is no genuine dispute as to these facts.

Courts have consistently found that a pretrial detainee’s refusal to comply with

repeated orders justifies the use of some degree of force by officers, including in cases

in which the force was greater than used on Primus. See, e.g., Wilcox v. McEvoy, 6:22-

CV-00388-JCB, 2023 WL 6056082, at *6 (E.D. Tex. Aug. 1, 2023) (finding that

swatting inmate’s hand and pushing his arm back into cell after inmate ignored

repeated verbal orders to place his arm back inside the cell was an objectively

reasonable use of force), adopted, 2023 WL 6048775 (E.D. Tex. Sept. 14, 2023).

Moreover, the use of force was minimal and limited to using an open hand to push

Primus into a housing unit during a medical emergency in the adjacent housing unit.

See Cain v. Ambriz, 114 F. App’x 600, 601 (5th Cir. 2004) (holding that an officer’s

use of an open hand to the face to push an inmate into his cell when he refused to

comply with requests was not objectively unreasonable).

As to the threat reasonably perceived by Paretti, Primus’s noncompliance with

repeated orders inherently created a threat. See, e.g., Minix v. Blevins, No. 6:06-306,

2007 WL 1217883, at *24 (E.D. Tex. April 23, 2007) (ruling that disobeying orders

poses a threat to the order and security of an institution). And as to the final

reasonableness factor, prior to using an open hand to push Primus into the housing

31 R. Doc. 120 at 5.

unit, Paretti gave Primus verbal orders and gestured at least four times for Primus

to enter his assigned housing unit. Fleischman also appears to verbally order Primus

into the housing unit and pointed toward the door. “The issuance of verbal orders

constitutes an effort made to temper the severity of a forceful response.” Grandpre v.

Gusman, No. 17-8935-DEK, 2018 WL 3632364, at *7 (E.D. La. July 31, 2018) (citing

Thompson v. Beasley, 309 F.R.D. 236, 249 (N.D. Miss. 2015)).

In summary, all Kingsley factors support the defendants, and the video of the

incident confirms there is no legitimate factual dispute. Therefore, summary

judgment for defendant Paretti is warranted with respect to this claim. And given

that there was no excessive force, there was no basis or duty for either Fleischman or

Simmons to intervene such that summary judgment is warranted in their favor as

well. See Reynolds v. Wood County, Tex., No. 22-40381, 2023 WL 3175467, at *4 (5th

Cir. May 1, 2023) (“[T]he individual officer-defendants are not liable on Reynolds’s

bystander liability claim because the underlying excessive force claim fails.”).

E. Defendants are entitled to summary judgment relative to the

alleged incident of November 21, 2023.

Primus claims that, even though he filed a PREA complaint relative to Taylor,

they were placed in the same housing unit on November 21, 2023.32 Primus has not

identified any risk to his safety based on Taylor’s presence in the dormitory on

November 21, 2023. While he recently asserted for the first time that he had an

“altercation” with Taylor and that he was subject to an “assault,” he presented no

32 R. Doc. 69 at 8, 16–17, 19.

additional detail relative to the alleged altercation, assault or any resulting physical

injury.33 Winding v. Sparkman, 423 F. App’x 473, 474 (5th Cir. 2011) (citing Jones v.

Greninger, 188 F.2d 322, 326 (5th Cir. 1999) and 42 U.S.C. § 1997e(e)); Walzier v.

McMullen, 333 F. App’x 848, 851 (5th Cir. 2009) (“Absent a showing that other

inmates harmed Walzier, there is no factual basis for a failure to protect claim.”).

And, finally, he has not presented evidence that the alleged altercation was the result

of anything more than alleged negligence. As discussed below, the decisionmakers

who placed the two inmates together were unaware of the prior alleged incident. As

a result, defendants are entitled to summary judgment as to this claim.

F. Defendants are entitled to summary judgment on the alleged

PREA retaliation claim.

Primus appears to assert that defendants Van Halen, Fleischman, and

Simmons moved Taylor into Primus’s housing unit as retaliation for him filing his

PREA complaint relative to the alleged sexual assault by Taylor.34

A prison official may not retaliate against a prisoner for exercising his First

Amendment rights of access to the courts or to complain through proper channels

about alleged misconduct at the facility. Morris v. Powell, 449 F.3d 682, 684 (5th Cir.

2006) (citing Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995)). Prisoners’ claims

of retaliation should be “carefully scrutinized by the courts.” Adeleke v. Fleckenstein,

385 F. App’x 386, 387 (5th Cir. 2010) (citing Woods, 60 F.3d at 1166). To prevail on a

claim of retaliation, a prisoner must be able to establish: (1) he was exercising or

33 R. Doc. 120 at 6; R. Doc. 123 at 6.

34 R. Doc. 69 at 1, 10.

attempting to exercise a specific constitutional right; (2) the defendant intentionally

retaliated against the prisoner for the exercise of that right; (3) the defendant

undertook an adverse retaliatory action, greater than de minimis, against the inmate;

and (4) there is causation: that but for the retaliatory motive, the adverse action

would not have occurred. McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998).

“A prisoner who brings a retaliation claim bears a heavy burden that may not

be satisfied with conclusional allegations or his own personal beliefs.” Williams v.

Dretke, 306 F. App’x 164, 167 (5th Cir. 2009).

Primus satisfies the first element because filing a grievance is a

constitutionally protected activity. See, e.g., Richard v. Martin, 390 F. App’x 323, 325–

26 (5th Cir. 2010) (acknowledging that there is a First Amendment right to file a

prison grievance); Woods, 60 F.3d at 1164. But Primus cannot meet the remaining

elements. Primus concedes that Van Halen was unaware of his grievance and acted

without a retaliatory motive.35 With regard to defendants Fleischman and Simmons,

Primus fails to present evidence that Taylor’s placement in Primus’s housing unit

would not have occurred but for their desire to retaliate against Primus. The

movement of inmates is “an activity which occurs routinely within the prison, [and]

does not in and of itself raise the inference of retaliation.” Hurley v. Blevins, No.

6:04CV368, 2005 WL 997317, at *6 (E.D. Tex. March 28, 2005).

Moreover, “[r]etaliation against a prisoner is actionable only if it is capable of

deterring a person of ordinary firmness from further exercising his constitutional

35 R. Doc. 120 at 6; R. Doc. 17 at 6–7; R. Doc. 123 at 5.

rights.” Morris, 449 F.3d at 685–86 (emphasis added). Here, Primus has presented no

evidence of a constitutional injury beyond the vague suggestion of an altercation. He

has not shown that the act of placing Taylor in his housing unit deterred him from

further exercising his First Amendment rights. Conversely, Primus previously

submitted evidence that he continued to file grievances after the events of November

21, 2023.36 See Young v. Ledet, No. 20-2165, 2021 WL 799683 (E.D. La. Jan 15, 2021)

(finding that retaliation claims failed where prisoner “denie[d] any denial of his right

to access the courts or pursue his grievances”), adopted, 2021 WL 795981 (E.D. La.

March 2, 2021), appeal dismissed, No. 21-30161, 2021 WL 4300897 (5th Cir. July 6,

2021). For these reasons, defendants are entitled to summary judgment as to his

retaliation claim against them.

G. Defendants are entitled to summary judgment on the claim that

they did not follow jail policies and procedures.

Primus alleges that, when he tried to file a PREA complaint via the jail

telephone, the PREA reporting feature was blocked.37 He admits that the blockage

was corrected after he reported the issue in an ARP and an email, and he concedes

that he was later able to file his complaint.38 He further argues that, on November

21, 2023, he was not kept separate from Taylor in violation of the PREA policy and

36 See R. Doc. 50 at 4 (grievance dated Sept. 3, 2024); R. Doc. 54 at 2 (grievance dated

Sept. 9, 2024).

37 R. Doc. 69 at 13.

38 Id. at 14; R. Doc. 120 at 3.

protocol, jail policy, and DOC rules and regulations.39 Defendants correctly argue

that these claims must be dismissed.40

The PREA does not create a private cause of action or a federal right for

purposes of suit under § 1983. See Krieg v. Steele, 599 F. App’x 231, 232–33 (5th Cir.

2015). Thus, Primus cannot succeed on his claims against defendants in their

individual capacities for alleged violations of the PREA. Nor can Primus succeed on

his claims alleging failure to follow jail and/or Department of Correction policies and

procedures. A plaintiff is not constitutionally entitled to have the prison follow its

own rules. Perry v. Allemand, 687 F. App’x 352, 353 (5th Cir. 2017) (citations omitted).

Therefore, Primus’s claims against defendants under the PREA and for failure to

follow prison policies and procedures should be dismissed.

H. Defendants are entitled to summary judgment on the claims

expressing dissatisfaction with the disciplinary process.

Primus asserts that defendants Fleischman, Simmons, and Paretti are liable

for failing to act on his grievance, failing to take disciplinary action, or failing to take

other action against individuals for holding multiple inmates in suicide observation

cells.41 Defendants correctly assert that these claims must be dismissed.42

The Fifth Circuit has repeatedly held that an inmate does not have a

constitutional right to an adequate and effective grievance procedure, or to have his

complaints investigated and resolved to his satisfaction. Stauffer v. Gearhart, 741

39 R. Doc. 69 at 8, 16-17, 19.

40 R. Doc. 78-1 at 35-36 (citations omitted).

41 R. Doc. 69 at 16.

42 R. Doc. 78-1 at 36.

F.3d 574, 587 (5th Cir. 2014) (citing Geiger v. Jowers, 404 F.3d 371, 373–74 (5th Cir.

2005)); Propes v. Mays, 169 F. App’x 183, 184-85 (5th Cir. 2006) (concluding that

prisoners do not have a federally protected liberty interest in having grievances

investigated, let alone resolved in their favor) (citing Geiger, 404 F.3d at 373–74). A

prisoner has no protected liberty interest in the adequacy or the result of prison

administrative grievance procedures. Smith v. Horton, 670 F. App’x 872, 873 (5th Cir.

2016) (quoting Sandin, 515 U.S. at 484). Without a constitutional right at issue,

Primus’s dissatisfaction of the responses by Fleischman, Simmons, and Paretti to his

grievances is frivolous. Therefore, summary judgment should be entered in favor of

defendants.

I. Defendants are entitled to summary judgment on the

supervisory and official capacity claims.

Primus also named defendants in their official capacities.43 As indicated,

defendants argue that the official capacity claims against them must be dismissed as

they are not policy makers.44 They also argue that Primus’s allegations are

insufficient to allege a Monell claim.45 Primus did not respond to these arguments.

First, Fleischman, Simmons and Paretti cannot be liable as supervisory

officials under § 1983 pursuant to a theory of respondeat superior. Eason v. Thaler,

73 F.3d 1322, 1327 (5th Cir. 1996); accord Field v. Corr. Corp. Inc., 364 F. App’x 927,

929 (5th Cir. 2010). A supervisory official is liable for subordinates’ actions only if the

official implemented an unconstitutional policy that caused the plaintiff’s injury.

43 R. Doc. 69 at 1.

44 R. Doc. 78-1 at 6–7.

45 Id. at 20–21.

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691–95 (1978); Thompson v. Johnson, 348

F. App’x 919, 921 (5th Cir. 2009) (citing Mouille v. City of Live Oak, 977 F.2d 924, 929

(5th Cir. 1993)).

To the extent that Primus sues the defendants in their official capacities, such

a suit is “really a suit against the municipality that employs the defendant[s].”

Rombach v. Culpepper, No. 16-556, 2018 WL 1202556, at *4 (E.D. La. Mar. 8, 2018)

(citing Monell, 436 U.S. at 690 n.55). Thus, Primus’s official-capacity claims against

defendants are against the St. Tammany Parish Sheriff’s Office itself. To succeed on

an official-capacity claim under Monell, the plaintiff must establish: (1) an official

policy or custom, of which (2) a policymaker can be charged with actual or

constructive knowledge, and (3) a constitutional violation whose “moving force” is

that policy or custom. Valle v. City of Houston, 613 F.3d 536, 541–42 (5th Cir. 2010)

(quotations and citations omitted).

“A plaintiff may not infer a policy merely because harm resulted from some

interaction with a governmental entity.” Colle v. Brazos Cty., 981 F.2d 237, 245 (5th

Cir. 1993); see also Wetzel v. Penzato, No. 09-7211, 2009 WL 5125465, at *3 (E.D. La.

Dec. 23, 2009). Rather, the plaintiff must identify the policy or custom which allegedly

caused the deprivation of his constitutional rights. See, e.g., Murray v. Town of

Mansura, 76 F. App’x 547, 549 (5th Cir. 2003); Treece v. Louisiana, 74 F. App’x 315,

316 (5th Cir. 2003); Wetzel, 2009 WL 5125465, at *3.

Primus presents no evidence that any of the defendants have any policy-

making authority. Further, while Primus broadly claims that there is a “policy of

housing multiple naked inmates together,”46 he fails to present any specific evidence

of such a policy nor any evidence that the defendants’ decisions reflect official jail

policy or custom. Moreover, for the reasons previously explained, Primus failed to

establish any constitutional violation related to any of his claims. See Rios v. City of

Del Rio, 444 F.3d 417, 425–26 (5th Cir. 2006) (“It is facially evident that this test

cannot be met if there is no underlying constitutional violation.”) (citing Breaux v.

City of Garland, 205 F.3d 150, 161 (5th Cir. 2000)); accord Brauner v. Coody, 793 F.3d

493, 501 (5th Cir. 2015). Finally, defendants correctly assert that Fifth Circuit

jurisprudence dictates that Warden Fleischman is not a policymaker. Guillot ex rel.

T.A.G., 59 F.4th at 750 (“Official-capacity suits may be brought only against an

official acting as a policymaker, such that his decisions represent the official policy of

the local government unit . . . [and] [i]n Louisiana, the sheriff [not the warden] is the

final policymaker.”). Accordingly, any official-capacity claims asserted against

defendants should be dismissed.

J. State Law Claims

It is unclear whether Primus intended to assert state law claims, such as

negligence or assault. In any event, the Court should decline to consider such state

law claims against defendants because Primus lacks a valid federal claim. Batiste v.

Island Records, Inc., 179 F.3d 217, 227 (5th Cir. 1999). The Court therefore

recommends that jurisdiction be declined over any supplemental state law claims

against these defendants and that those claims be dismissed without prejudice.

46 R. Doc. 117 at 2.

K. Injunctive Relief

In his third amended complaint, Primus asks the Court to grant injunctive

relief requiring the St. Tammany Parish Jail to provide him with mental health

counseling and trauma therapy by an outside physician.47 He also filed a motion

seeking an injunction preventing the jail from housing multiple naked inmates

together.48 In that motion, Primus merely reargues points made in his opposition to

the motion for summary judgment.49 As the Court is recommending that summary

judgment be entered in favor of the defendants on all federal claims, Primus is not

entitled to injunctive relief. His request for injunctive relief should be denied.

IV. RECOMMENDATION

It is therefore RECOMMENDED Defendants’ Motion to Dismiss, R. Doc. 78,

which was converted to a motion for summary judgment, see R. Doc. 89, should be

GRANTED.

It is further RECOMMENDED that summary judgment be granted in

defendants’ favor and that all claims against defendants Daniel Fleischman, Rhonda

Simmons, Stephen Paretti, Lieutenant Aaron Mendow, Corporal Van Halen,

Corporal Hannah Kairdolf, Deputy Michael Cartner, Deputy Brandon Dussouy, and

Deputy Julian Harrington in both their official and individual capacities be

DISMISSED WITH PREJUDICE.

47 R. Doc. 69 at 20.

48 R. Doc. 117.

49 Id.

It is FURTHER RECOMMENDED that the Court decline to exercise

supplemental jurisdiction over any state law claims under 28 U.S.C. § 1367(c) and

that such claims against these defendants be DISMISSED WITHOUT

PREJUDICE.

It is FURTHER RECOMMENDED that Primus’s Motion for Preliminary

Injunction, R. Doc. 117, be DENIED.

It is FURTHER RECOMMENDED that the Clerk of Court be directed to

TERMINATE Sheriff Randy Smith, Lieutenant Moore, Sergeant Harrison, and

Travis Martin because they are not in fact parties to this lawsuit.

A party’s failure to file written objections to the proposed findings, conclusions,

and recommendation in a magistrate judge’s report and recommendation within 14

days after being served with a copy shall bar that party, except upon grounds of plain

error, from attacking on appeal the unobjected-to proposed factual findings and legal

conclusions accepted by the district court, provided that the party has been served

with notice that such consequences will result from a failure to object. 28 U.S.C. §

636(b)(1); Douglass v. United Services Auto. Assn, 79 F.3d 1415, 1430 (5th Cir. 1996)

(en banc).

New Orleans, Louisiana, this 18 day of April, 2025.

.

A. J. DOSSIER

UNITED STATES MAGISTRATE JUDGE

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