Sam

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

KEVIN SAM

CIVIL ACTION

VERSUS

NO. 23-1485-JWD-EWD

STAFFORD BYRD, ET AL.

RULING AND ORDER

This matter comes before the Court on the Motion for Partial Summary Judgment (Doc. 31)

(“Pl. MSJ”) filed by Plaintiff Kevin Sam (“Plaintiff” or “Sam”). Defendants Stafford Byrd

(“Byrd”) and the State of Louisiana through the Department of Public Safety and Corrections

(“State” or “DOC”) (collectively, “Defendants”) oppose the motion, (Doc. 37), and Plaintiff has

filed a reply, (Doc. 38). Oral argument is not necessary. The Court has carefully considered the

law, the facts in the record, and the arguments and submissions of the party and is prepared to rule.

For the following reasons, Plaintiff’s motion is granted in part and denied in part.

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff was a DOC offender housed at Louisiana State Penitentiary (“LSP”) at Angola on

December 5, 2021. (Answer ¶ 4, Doc. 13.) On the same day, Byrd was employed by DOC at LSP.

(Id. ¶ 5.)

Plaintiff claims that Byrd severely and unnecessarily beat him without provocation or any

resistance by Sam. (Ruling and Order, Doc. 47 at 1–3.) Plaintiff brings claims against Byrd for

(1) excessive force in violation of the Eighth Amendment under 42 U.S.C. § 1983, and (2) state

law claims of battery and negligence. (Am. Pet. ¶¶ 35–42, Doc. 1-8.) Plaintiff also alleges that the

State is vicariously liable for the state law torts of Byrd. (Id. ¶¶ 43.)

Plaintiff’s testimony as to what happened is recounted in the Court’s ruling on Defendants’

Motion for Partial Summary Judgment (Doc. 33) (“Defs. MSJ”).1 That version need not be

repeated in full here.

Defendants, of course, provide a different account of what happened, and that is more

relevant to the instant motion. Specifically, Byrd claims that, on December 5, 2021, his job duties

included conducting shake down searches of offenders coming off the Cell Block D recreation

Yard. (Byrd Aff. ¶ 3, Doc. 37-2.) At about 3:15 p.m., he was conducting such searches and

attempted to do so on Sam. (Id. ¶ 4.) Byrd says he ordered Sam to submit to a shake down search,

but Sam refused. (Id. ¶ 5.) Byrd ordered him to submit to a search again, and Sam again refused,

stating, “You ain’t about to pat me down, you bitch ass n####.” (Id. ¶ 6.)

Byrd tried to conduct the shake down search by patting Sam down, but Sam pulled away

from his attempt to reach him. (Id. ¶¶ 7–8.) Byrd grabbed Sam by his arm in an effort to restrain

him and obtain his compliance with the search. (Id. ¶ 8.) Sam tried to pull himself free of Byrd’s

grip, so Bryd tried to end Sam’s resistance by bringing Sam to the ground so he could be placed

in mechanical restraints. (Id. ¶¶ 9–10.)

Lt. Walker assisted Byrd in applying those restraints once Plaintiff was on the ground. (Id.

¶ 11.) After they applied the restraints, Bryd and Walker searched Sam and brought him to Cell

Block D. (Id. ¶ 12.) Thereafter, Byrd reported to medical personnel for evaluation and was cleared

fit to return to duty. (Id. ¶ 13.)

Byrd avers, “At no point in [his] interaction with . . . Sam on December 5, 2021, did [Byrd]

observe any physical injury to him, and he did not voice any complaint of injury to [Byrd].” (Id. ¶

1 The Court notes the Plaintiff provides an account of what happened in his Statement of Undisputed Material Facts

Offered in Relation to [Pl. MSJ] (Doc. 31-3) (“SUMF”). However, as Defendants point out, Plaintiff provides almost

no record citations in this document. This deficiency will be discussed further below.

14.) Further, “[a]t no point in [his] interaction with . . . Sam on [that day] did [Byrd] punch him or

otherwise strike him with [his] fist or any other implement.” (Id. ¶ 15.)

Defendants also submit some of Plaintiff’s medical records. On December 5, 2021, the day

of the incident, Plaintiff sought treatment alleging he got hit in the head and eye. (Doc. 37-3 at 4.)

The provider reported “0 bruising 0 swelling 0 trauma.” (Id.) Plaintiff was not seen again until

December 8, 2021, (3 days later), during which time he got “beat up” and “hit in the eye,” and he

had “bruising” and “swelling.” (Id. at 3.) Plaintiff was then seen again on December 11, 2021, at

which time he showed 0 visible signs of trauma, “refused to be assessed” and “voice[d] no medical

complaints at this time.” (Id. at 2.)

Plaintiff now files the instant motion seeking partial summary judgment on some of

Defendants’ affirmative defenses. (Doc. 31 at 1.) Specifically, Plaintiff seeks dismissal of the

following defenses: (1) qualified immunity; (2) denial of liability; (3) comparative fault; (4) failure

to mitigate; (5) good faith; (6) discretionary immunity under La. R.S. § 9:2798.1; and (7) the

statutory cap under La. R.S. § 13:5106. (Id. at 1–2.)

II. SUMMARY JUDGMENT STANDARD

Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil

Procedure, which states that a “court shall grant summary judgment if 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(a). “A party asserting that a fact cannot be or is genuinely disputed must

support the assertion by citing to particular parts of materials in the record,” or by “showing that

the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse

party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).

Thus, “[a] movant for summary judgment need not set forth evidence when the nonmovant

bears the burden of persuasion at trial.” Wease v. Ocwen Loan Servicing, L.L.C., 915 F.3d 987,

997 (5th Cir. 2019) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (“we find no express

or implied requirement in Rule 56 that the moving party support its motion with affidavits or other

similar materials negating the opponent's claim.”)). “The moving party may meet its burden to

demonstrate the absence of a genuine issue of material fact by pointing out that the record contains

no support for the non-moving party’s claim.” Id. (citing Stahl v. Novartis Pharms. Corp., 283

F.3d 254, 263 (5th Cir. 2002)).

If the mover bears his burden of showing that there is no genuine issue of fact, “its opponent

must do more than simply show that there is some metaphysical doubt as to the material facts. . . .

The nonmoving party must come forward with specific facts showing that there is a genuine issue

for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (cleaned

up). The non-mover’s “burden is not satisfied with some metaphysical doubt as to the material

facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.”

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (cleaned up).

Additionally, “[w]hen evidence exists in the summary judgment record but the nonmovant

fails even to refer to it in the response to the motion for summary judgment, that evidence is not

properly before the district court.” Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) (citing

Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998); Skotak v. Tenneco Resins,

Inc., 953 F.2d 909, 916 (5th Cir. 1992). “Rule 56 does not impose upon the district court a duty to

sift through the record in search of evidence to support a party’s opposition to summary judgment.”

Id. (quoting, inter alia, Ragas, 136 F.3d at 458). See also Nissho–Iwai American Corp. v. Kline,

845 F.2d 1300, 1307 (5th Cir. 1988) (it is not necessary “that the entire record in the case . . . be

searched and found bereft of a genuine issue of material fact before summary judgment may be

properly entered”); cf. United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not

like pigs, hunting for truffles buried in briefs”).

Ultimately, “[w]here the record taken as a whole could not lead a rational trier of fact to

find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co.,

475 U.S. at 587 (citation omitted).

In resolving the motion, the court may not undertake to evaluate the

credibility of the witnesses, weigh the evidence, or resolve factual

disputes; so long as the evidence in the record is such that a

reasonable jury drawing all inferences in favor of the nonmoving

party could arrive at a verdict in that party's favor, the court must

deny the motion. Indeed, even if the moving party comes forward

with an abundance of evidence supporting its theory of the case, the

nonmoving party may nevertheless defeat the motion by countering

with evidence of its own, which, if credited by the fact-finder, would

entitle the nonmoving party to a verdict in its favor. Or, the non-

moving party can defeat the motion by demonstrating that the

evidence tendered by the moving party is itself laced with

contradictions of [material] fact.

Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (cleaned up).

III. DISCUSSION

A. Preliminary Note

Defendants raise the point that Plaintiff largely does not support his SUMF with any

citations to record documents. (Doc. 37 at 3.) Thus, say Defendants, the Court should disregard

most of this submission. (Id.) Plaintiff responds that he does not have the burden of proof on

affirmative defenses and need only point to a lack of proof by Defendants. (Doc. 38 at 2.)

Both sides make fair points. Defendants are correct that Plaintiff’s SUMF violates Local

Civil Rule 56; this rule provides in relevant part:

An assertion of fact set forth in a statement of material facts shall be

followed by a citation to the specific page or paragraph of identified

record material supporting the assertion. The court may disregard

any statement of fact not supported by a specific citation to record

material properly considered on summary judgment. The court shall

have no independent duty to search or consider any part of the record

not specifically referenced in the parties’ separate statement of facts.

M.D. La. Civ. R. 56(f). Thus, the Court may disregard any unsupported facts.

Plaintiff says that he does not bear the burden of proving affirmative defenses. It is certainly

true that “[a]n affirmative defense places the burden of proof on the party pleading it.” Occidental

Petroleum Corp. v. Wells Fargo Bank, N.A., 117 F.4th 628, 643 (5th Cir. 2024) (quoting F.T.C. v.

Nat’l Bus. Consultants, Inc., 376 F.3d 317, 322 (5th Cir. 2004)). And, as stated above, “[a] movant

for summary judgment need not set forth evidence when the nonmovant bears the burden of

persuasion at trial.” Wease, 915 F.3d at 997 (citation omitted). Thus, Sam makes a fair point that

he “may meet its burden to demonstrate the absence of a genuine issue of material fact by pointing

out that the record contains no support for the non-moving party’s claim.” Id. (citation omitted).

But, there are a few problems with Plaintiff’s position. First, “once the defense of qualified

immunity has been raised, the plaintiff has the burden of demonstrating that ‘(1) the official

violated a statutory or constitutional right, and (2) the right was “clearly established” at the time.’”

McClelland v. Katy Indep. Sch. Dist., 63 F.4th 996, 1005 (5th Cir. 2023) (emphasis added) (quoting

Benfield v. Magee, 945 F.3d 333, 337 (5th Cir. 2019) (quoting Morgan v. Swanson, 659 F.3d 359,

371 (5th Cir. 2011) (en banc))).2 Thus, as to this specific defense, Plaintiff has the burden, and he

must bring forward evidence to support his claim. Second, more broadly speaking, Plaintiff cites

no authority for the proposition that he is relieved of his obligations to comply with the Local

Rules in situations such as these.

2 The Court finds it highly doubtful that a litigator as seasoned as Plaintiff’s counsel, who has probably tried over ten

§ 1983 cases before undersigned, would not know that her client has the burden of overcoming qualified immunity.

Perhaps recognizing this problem, Plaintiff attempts to cure his deficient filing by attaching

his deposition, an employee manual, and a corrected SUMF to his reply memorandum. (Docs. 38-

1, 38-2, 38-3, and 38-4). The Court has discretion to consider new evidence filed with a reply,

depending on the circumstances of the case, including its timing, the existing litigation posture,

and whether the non-movant is given an adequate opportunity to respond. See Elwakin v. Target

Media Partners Operating Co. LLC, 901 F. Supp. 2d 730, 745–46 (E.D. La. 2012) (citations

omitted).

Under the unique circumstances of this case, the Court will not strike these exhibits or the

amended SUMF. First, the reply was filed in late May 2025, and no subsequent objection or motion

to strike Plaintiff’s exhibits has been filed. (Doc. 38.) Second, Plaintiff’s version of the facts largely

comes from his deposition, which was submitted before this reply memorandum with Plaintiff’s

opposition to Defs. MSJ. (Doc. 36-1.) Thus, the reply (and deposition attached to it) raised no new

issues. Third, Defendants were already in possession of Byrd’s employment manual. And fourth,

and most critical to the Court, the Court finds that this motion largely turns on the evidence

submitted by Defendants and the questions of fact that arise from that evidence. As a result,

Defendants suffer no prejudice from this submission, and it ultimately has little if any effect on

the outcome of the motion. Phrased another way, the parties are fighting over an unimportant issue.

B. Defenses Regarding Liability

1. Qualified Immunity

a. Parties’ Arguments

Plaintiff first seeks summary judgment on Defendants’ defense of qualified immunity.

(Doc. 31-2 at 4.) Plaintiff argues that qualified immunity rarely applies in the context of excessive

force claims under the Eighth Amendment, and it does not apply in this case either. (Id.) Plaintiff

recaps his version of the facts before asserting that qualified immunity does not apply to state law

claims either. (Id. at 5–7.) Plaintiff then turns to the federal claims, citing several cases where

qualified immunity was denied to a defendant on a motion for judgment on the pleadings or when

the defendant submitted no evidence to refute Plaintiff’s allegations. (Id. at 7–9.) Similarly,

because, says Plaintiff, he was unjustly beaten, Plaintiff is entitled to partial summary judgment

on the qualified immunity defense. (Id. at 9–10.)

In response, Defendants make some irrelevant points3 before arguing that qualified

immunity remains applicable to Plaintiff’s federal claims. (Doc. 37 at 4.) According to Defendants,

Plaintiff has no evidence while, conversely, Defendants submit Byrd’s affidavit to contradict

Plaintiff’s account. (Id.) Thus, the Court should reject Plaintiff’s arguments. (Id. at 5.)

Plaintiff replies that (1) there is no qualified immunity under Louisiana state law for a

battery nor does it affect respondeat superior for a battery, and (2) Plaintiff’s account of what

happen shows there is no qualified immunity. (Doc. 58 at 2–3.)

b. Applicable Law

“Qualified immunity shields government officials performing discretionary functions from

civil damages liability ‘as long as their actions could reasonably have been thought consistent with

the rights they are alleged to have violated.’” Crittindon v. LeBlanc, 37 F.4th 177, 185 (5th Cir.

2022), cert. denied, 144 S. Ct. 90 (2023) (quoting Anderson v. Creighton, 483 U.S. 635, 638

(1987)). “Determining whether an officer is entitled to qualified immunity requires a two-step

inquiry. First, we ask whether the officer’s alleged conduct has violated a federal right. Second,

3 Defendants argue first that qualified immunity is available as a corollary to a claim under Louisiana’s version of the

Eighth Amendment, La. Const. Art. I, § 20. (Doc. 37 at 3.) Next, Defendants then pound that Plaintiff only asserts a

claim of vicarious liability against the state for battery. (Id. at 4.) As Plaintiff points out in reply, he makes no claim

under the Louisiana constitution. (Doc. 38 at 2.)

we ask whether the right in question was clearly established at the time of the alleged violation,

such that the officer was on notice of the unlawfulness of his or her conduct.” Id. at 185–86

(cleaned up). Courts are “permitted to exercise their sound discretion in deciding which of the two

prongs of the qualified immunity analysis should be addressed first in light of the circumstances

in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).

As to the first prong, this Court has recognized:

A use of force by a prison official is excessive and violates the

Eighth Amendment to the United States Constitution only when

such force is applied maliciously and sadistically for the very

purpose of causing harm rather than in a good faith effort to maintain

or restore discipline. Wilkins v. Gaddy, 559 U.S. 34, 37 (2010),

quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992). Not every

malicious or malevolent action by a prison guard gives rise to a

federal cause of action, however, and 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 v. McMillian, supra, 503 U.S. at

10, quoting Whitley v. Albers, 475 U.S. 312, 327 (1986).

The fact that an inmate may have sustained only minimal injury,

however, does not end the inquiry, and an inmate who has been

subjected to gratuitous force by prison guards “does not lose his

ability to pursue an excessive force claim merely because he has the

good fortune to escape without serious injury.” Wilkins v. Gaddy,

supra, 559 U.S. at 38. Notwithstanding this, the Court may consider

the extent of injury, if any, as potentially relevant to a determination

whether an alleged use of force was excessive under the

circumstances. In addition, other factors that may be considered in

determining whether an alleged use of force has been excessive

include the perceived need for the application of force, the

relationship between the need for force and the amount of force

utilized, the threat reasonably perceived by prison officials, and any

efforts made to temper the severity of a forceful response. Hudson

v. McMillian, supra, 503 U.S. at 7.

Locklear v. Warden, No. CV 22-894-JWD-SDJ, 2023 WL 5814401, at *3 (M.D. La. Aug. 8, 2023),

report and recommendation adopted, No. CV 22-894-JWD-SDJ, 2023 WL 5811248 (M.D. La.

Sept. 7, 2023).

As to the second prong, “[i]n determining what constitutes clearly established law, [the

Fifth Circuit] first looks to Supreme Court precedent and then to [its] own.” Crittindon, 37 F.4th

at 186 (quoting Shumpert v. City of Tupelo, 905 F.3d 310, 320 (5th Cir. 2018)). “When there is no

direct controlling authority, [the Fifth Circuit] may rely on decisions from other circuits to the

extent that they constitute a robust consensus of cases of persuasive authority.” Id. (quoting

Shumpert, 905 F.3d at 320 (internal quotation marks and citation omitted)). “Ultimately, the

touchstone is ‘fair warning’: The law can be clearly established ‘despite notable factual distinctions

between the precedents relied on and the cases then before the Court, so long as the prior decisions

gave reasonable warning that the conduct then at issue violated constitutional rights.’” Id. (quoting

Shumpert, 905 F.3d at 321 (quoting Hope v. Pelzer, 536 U.S. 730, 740 (2002))).

Nevertheless, “[t]o be clearly established, a right must be ‘sufficiently clear that every

reasonable official would have understood that what he is doing violates that right.’” Garcia v.

Blevins, 957 F.3d 596, 600 (5th Cir. 2020) (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per

curiam)). Courts “do not require plaintiffs to identify a case ‘directly on point,’ but the case law

must ‘place[ ] the statutory or constitutional question beyond debate.’” Id. (quoting Morgan v.

Swanson, 659 F.3d 359, 371 (5th Cir. 2011)) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011)).

c. Analysis

Having carefully considered the matter, the Court will deny Pl. MSJ on this issue as moot.

First, Defendants concede that they do not have qualified immunity for the battery claim. (Doc. 37

at 4 (“While qualified immunity may not apply to the particular state law claims that Plaintiff has

now limited himself to, the defense remains applicable as to Plaintiff’s federal claims.”).) Thus,

Plaintiff seeks summary judgment regarding a state law affirmative defense that Defendants are

not asserting.

Second, as to the federal claims, and contrary to Plaintiff’s position, it is his burden to show

that qualified immunity does not apply. See McClelland, 63 F.4th at 1005 (citations omitted). “If

the movant bears the burden of proof on an issue, either because he is the plaintiff or as a defendant

he is asserting an affirmative defense, he must establish beyond peradventure (that is, beyond

doubt) all of the essential elements of the claim or defense to warrant judgment in his favor.” Imani

v. City of Baton Rouge, 614 F. Supp. 3d 306, 334 (M.D. La. 2022) (deGravelles, J.) (cleaned up).

That is,

In contrast, if the movant bears the burden of proof on a claim at

trial, then its burden of production is greater. It must lay out the

elements of its claim, citing the facts it believes satisfies those

elements, and demonstrating why the record is so one-sided as to

rule out the prospect of the nonmovant prevailing. If the movant fails

to make that initial showing, the court must deny the motion, even

if the opposing party has not introduced contradictory evidence in

response.

Id. at 335 (quoting 10A Charles Alan Wright, Arthur R. Miller, et al., Federal Practice and

Procedure § 2727.1 (4th ed. 2022)).

Plaintiff cannot meet that burden on the record currently before the Court. According to

Byrd’s affidavit, he applied force to Sam only after Sam refused multiple times to subject himself

to a search and only to obtain compliance for same. (Bryd Aff. ¶¶ 3–8, Doc. 37-2.) Moreover, a

reasonable juror could conclude that the force used by Byrd—bringing Sam to the ground to place

him in mechanical restraints—was reasonable under the circumstances and not done maliciously

and sadistically to inflict harm. (Id. ¶¶ 8–10.) As Byrd testified, “[a]t no point in [his] interaction

with . . . Sam on December 5, 2021, did [Byrd] punch him or otherwise strike him with [his] fist

or any other implement.” (Id. ¶ 15.)

A reasonable juror could also find that any injury to Byrd was de minimis. Again, Byrd

attests, “[a]t no point in [his] interaction with . . . Sam on December 5, 2021, did [Byrd] observe

any physical injury to him, and he did not voice any complaint of injury to [Byrd.].” (Id. ¶ 14.)

Likewise, Sam’s medical records from the day of the incident show that the provider reported no

bruising, swelling, or trauma. (Doc. 37-3 at 4.) Thus, under Byrd’s version of events, the Hudson

factors weigh in Defendants’ favor.

In sum, Plaintiff has not established that every reasonable jury would conclude that

Plaintiff is not entitled to qualified immunity. Plaintiff’s maintenance of this motion after Byrd’s

affidavit was submitted borders on frivolous. Consequently, Pl. MSJ will be denied on this issue.

2. Good Faith, Denial of Liability, and Comparative Fault

a. Parties’ Arguments

Plaintiff next argues he is entitled to summary judgment on the above defenses. (Doc. 31-

2 at 10.) “A denial of a fact is not an affirmative defense.” (Id.) Good faith, Plaintiff says, is also

not a legal ground for immunity. (Id.) Next, comparative fault is not a defense for constitutional

violations. (Id.) Alternatively, Plaintiff was not negligent, and Byrd cannot prove that he was. (Id.

at 11.)

Defendants respond first that Plaintiff provides no legal basis for his position that a general

denial is not a valid affirmative defense. (Doc. 37 at 5.) Further, “good faith” is a recognized

defense that is “merely another way of invoking qualified immunity specific to state constitutional

claims.” (Id.) Plaintiff did not disclaim any possible state constitutional claims until after the

Defendants filed their answer. (Id.) As to comparative fault, Byrd notes that Plaintiff made a claim

under Louisiana state law, so comparative fault is a viable defense. (Id. at 6.)

In reply, Plaintiff reiterates that a denial of a fact is not an affirmative defense. (Doc. 38 at

3–4.) Likewise, Plaintiff says that Defendant has not offered factual support for his comparative

fault defense.

b. Law and Analysis

Having carefully considered the matter, the Court will deny Sam’s motion. As to the denial

of liability, the Court finds persuasive Magistrate Judge Bourgeois’s opinion in Cayette v. PNK

(Baton Rouge) P'ship, No. CV 15-692-SDD-RLB, 2016 WL 3579028, at *3–4 (M.D. La. May 19,

2016), report and recommendation adopted, No. 15-692-SDD-RLB, 2016 WL 3582082 (M.D. La.

June 28, 2016). There, plaintiffs moved to strike certain affirmative defenses, including one that

the plaintiff’s claims were barred “to the extent that they impose upon [defendant] obligations for

which [defendant] is not legally responsible.” Id. at *3. Plaintiffs argued that

“intervening/superseding causes, events, or the acts of third persons do not provide a defense to

federal disability access claims.” Id. Defendant replied that it intended the defenses to have a

“broader reach than third-party liability” and that it could mean other bases for which defendant

was not liable under Title III of the ADA. Id. Plaintiff responded that the defense was “incredibly

broad and vague” and that defendant should be forced to clarify its meaning. Id. at *4.

The magistrate judge recommended that the motion be denied, explaining:

This asserted defense is not a true affirmative defense as those listed

in Rule 8(c), as it solely asserts that Plaintiff’s claims are legally

insufficient to the extent Defendant is not “legally responsible” for

the claims asserted. While mislabeled as an “affirmative defense,”

the inclusion of this broad denial of liability as an “affirmative

defense” is merely redundant of Defendant’s denials of liability and

does not prejudice Plaintiff. The “drastic remedy” of striking this

asserted defense is unwarranted. See Nickens v. State Employees

Credit Union, Inc., No. 13-1430, 2014 WL 3846060, at *3 (D. Md.

Aug. 4, 2014) (denying motion to strike asserted affirmative defense

that the “Defendants are not legally responsible for any injuries or

damages allegedly sustained by Plaintiff about which she

complaints” under the heightened pleading standard of Twombly and

Iqbal).

Id.

The same reasoning applies here. While Defendants technically erred in describing this as

an affirmative defense, Sam suffers no prejudice, and granting summary judgment on this issue

merely invites confusion for trial, where Defendants will be allowed to offer evidence contesting

liability. As a result, Sam’s motion on this issue is denied.

Plaintiff’s motion is also denied as to the affirmative defense of “good faith.” First, this

defense is simply redundant to the qualified immunity defense asserted by Plaintiff. In that respect,

the inclusion of this redundant defense is harmless, and granting summary judgment on it merely

invites confusion. Second, to the extent this defense was meant to address claims for violation of

the state constitution, the record is clear now that no such claims are asserted. Thus, the motion

can be denied as moot on that basis.

Finally, as to comparative fault, Plaintiff claims (1) this defense cannot apply to federal

constitutional claims, and (2) Defendants have no proof to support it. But Defendants do not argue

comparative fault for the federal constitutional claims, and, under Byrd’s version of the facts

(summarized above), Plaintiff was jointly at fault for causing his injuries by, inter alia, failing to

comply with orders. Thus, Plaintiff’s motion on this issue is denied as well. Again, Plaintiff’s

motion borders on frivolous, and is certainly a waste of judicial and party resources.

3. Discretionary Immunity

a. Parties’ Arguments

Plaintiff next argues that Byrd’s battery is not subject to the discretionary immunity of La.

R.S. § 9:2798.1 because (a) it is not based on policymaking or discretionary acts and (b) the

immunity does not apply to malicious acts. (Doc. 31-2 at 11.) Because the assault occurred at the

operational level, and not at the policymaking level, Byrd is not immune under this statute. (Id. at

11–12.)

In response, Defendants contend that discretionary immunity applies to operational acts

and ministerial or policymaking acts. (Doc. 37 at 7.) Rather, the statute “bars negligence claims

against governmental employees whenever the act complained of is one in which the governmental

employee had discretion to act and the action taken was within the employee’s lawful power.” (Id.

(citation omitted).) Correctional officers like Byrd have the lawful authority to use force, and they

have the discretion to determine the appropriate amount of force to apply. (Id.) Byrd’s affidavit

demonstrates that he exercised that discretion properly. (Id.)

Plaintiff responds that La. R.S. § 9:2798.1 is inapplicable as a matter of law. (Doc. 38 at

4–6.) Plaintiff quotes at length the statute and an Eastern District of Louisiana case on this issue.

(Id. (citations omitted).)

b. Law and Analysis

The Louisiana Supreme Court recently summarized the law governing La. R.S. § 9:2798.1

as follows:

The doctrine of discretionary immunity is set forth in La. R.S.

9:2798.1 B, which provides that “[l]iability shall not be imposed on

public entities or their officers or employees based upon the exercise

or performance or the failure to exercise or perform their

policymaking or discretionary acts when such acts are within the

course and scope of their lawful powers and duties.” We explained

the application of the discretionary act doctine in Cormier v. T.H.E.

Ins. Co., 98-2208, pp. 6-7 (La. 9/8/99), 745 So. 2d 1, 6-7:

[ ] the court must first consider whether the

government employee had an element of choice and

his course of action was not specifically prescribed

by the statute, regulation, or policy. Conduct cannot

be discretionary unless it involves an element of

judgment or choice. Thus, discretionary immunity

will not apply when a specific course of action is

prescribed as the employee has no rightful option but

to adhere to the directive. On the other hand, when

discretion is involved, the court must then determine

whether that discretion is the kind shielded by the

exception: one grounded in social, economic, or

political activity . . . If it is, then the doctrine applies

and the employee or agency is insulated from

liability; if it is not, the employee or agency is liable

for any negligence.

(Citations omitted)

Misita v. Maumoulides, 2022-00266 (La. 4/26/22), 336 So. 3d 886, 887 (per curiam).

Here, even construing the facts in evidence in a light most favorable to Bryd, the Court

finds that Sam is entitled to partial summary judgment on this issue. While Byrd’s decision in how

to respond to Sam was certainly discretionary, no reasonable juror could conclude that his

decisions were rooted in “social, economic, or political activity.”

The Court finds persuasive Disedare v. Brumfield, No. CV 22-2680, 2024 WL 1092833,

at *1 (E.D. La. Mar. 13, 2024), opinion vacated in part on reconsideration, No. CV 22-2680, 2024

WL 1514650 (E.D. La. Apr. 8, 2024). There, “Plaintiff alleges that over a four-day period in March

2021, the Defendant officers, suspecting Plaintiff had stored contraband in his rectum, repeatedly

ordered him to ingest laxatives, perform bowel movements in full restraints, submit to strip

searches, and undergo x-rays.” Id. “No contraband was found[,]” and plaintiff filed suit bringing

claims under § 1983 and Louisiana law for negligence. Id. Defendants argued they were entitled

to discretionary immunity for the state law claims, but the district court rejected this. Id. at 13–15.

Judge Morgan wrote:

The immunity statute does not protect operational governmental

decisions, but only confers immunity for discretionary decisions

based on social, economic, or political concerns. In other words,

when the government acts negligently for reasons unrelated to

public policy considerations, it is liable to those it injures. Thus, for

Defendants to prevail on summary judgment, they must demonstrate

their conduct was consistent with the course of action prescribed by

a policy or, absent a policy on point, was discretionary and grounded

in a social, economic, or political policy, by citing to materials in

the record for support.

In this case, Defendants failed to satisfy their burden because they

included no statements of undisputed material fact demonstrating

their conduct complied with any specific policy or procedure that

prescribes a course of action. Nor did they include statements of

undisputed material facts demonstrating they exercised reasonable

discretion with respect to a specific social, economic, or political

policy that involved choice or discretion. Instead, Defendants

merely made conclusory assertions that the Defendant officers

“followed DPSC policy and procedures when investigating

Plaintiff, which included the use of a visual body cavity search, body

scanner scans, and the placement on dry cell restrictions.”

Id. at *15 (cleaned up). Cf. Murray v. LeBlanc, 629 F. Supp. 3d 437, 466 (M.D. La. 2022)

(deGravelles, J.) (dismissing claims against secretary of DOC for “contracting and working with

Lasalle and similar institutions” because “any fair reading of the pleadings shows that his conduct

was grounded in ‘social, economic, or political policy.’”).

The same reasoning applies here. Bryd has not identified a policy that prescribed a course

of conduct, and, even construing the facts in a light most favorable to him, his conduct was not

rooted in policy. As a result, the Court will grant Sam partial summary judgment on the question

of Bryd’s entitlement to discretionary immunity under La. R.S. § 2798,1.

C. Defenses Regarding Damages

1. Failure to mitigate

Plaintiff next moves for summary judgment on Defendants’ failure to mitigate damages

defense. (Doc. 31-2 at 11.) Plaintiff claims there is no proof that he refused treatment. (Id.) Further,

Sam was incarcerated, so he had no choice but to use LSP for medical care. (Id.)

Defendants respond that, even if Plaintiff had limited resources available for treatment, he

still had an affirmative duty to reduce his damages. (Doc. 37 at 6.) Defendants cite Plaintiffs

medical records, specifically how (a) Plaintiff didn’t seek treatment until three days after the

incident, and only then after another confrontation with a chemical agent; (b) Plaintiff did not seek

follow up medical attention for days; and (c) “he failed to avoid subsequent confrontations within

a week of the incident.” (Id.)

Plaintiff replies, “Defendants offer only the medical records, which only show the dates

upon which medical treatment was afforded. There is no competent proof offered into the record

that Plaintiff was not requesting medical treatment or that he otherwise failed to mitigate.” (Doc.

38 at 4.)

Having carefully considered the matter, the Court will deny Plaintiff’s motion on this issue.

Again, according to the medical records in evidence, Plaintiff received treatment on the day of the

incident, but he was not seen again until December 8, 2021, (3 days later), during which time he

got “beat up” and “hit in the eye,” and he had “bruising” and “swelling.” (Doc. 37-3 at 3.) Plaintiff

was then seen again on December 11, 2021, at which time he showed 0 visible signs of trauma and

“refused to be assessed” and “voice[d] no medical complaints at this time.” (Id. at 2.) Considering

these facts, a reasonable jury could easily conclude that Plaintiff failed to mitigate his damages.

Plaintiff is not entitled to partial summary judgment on this issue.

2. Statutory Cap under La. R.S. § 13:5106 and La. R.S. § 13:5112.

a. Parties’ Arguments

Plaintiff next argues that he is entitled to summary judgment on Defendants’ eighth

affirmative defense, which invokes the statutory limitation of damages contained in La. R.S.

§ 13:5106 and § 13:5112. (Doc. 31-2 at 13.) Plaintiff argues that these statutes conflict with § 1983

and thus with the Supremacy Clause of the Constitution. (Id.) As a result, these state statutes cannot

limit Plaintiff’s federal claims. (Id. at 13–14.)

Defendants reply that there is no violation of the Supremacy Clause. (Doc. 37 at 8.)

Plaintiff’s only claim against the State is vicarious liability for state law claims, so the statutory

cap conflicts with no federal law. (Id. at 8–9.)

Plaintiff responds, “Defendants have offered no jurisprudence that allows a state court cap

to apply in federal court. As a matter of the law the cap does not apply in federal court.” (Doc. 38

at 6.)

b. Law and Analysis

Having carefully considered the matter, the Court will deny Plaintiff’s motion on this issue.

Louisiana Revised Statutes § 9:5106 provides:

B. (1) The total liability of the state and political subdivisions for all

damages for personal injury to any one person, including all claims

and derivative claims, exclusive of property damages, medical care

and related benefits and loss of earnings, and loss of future earnings,

as provided in this Section, shall not exceed five hundred thousand

dollars, regardless of the number of suits filed or claims made for

the personal injury to that person.

La. R.S. § 13:5106(B)(1). Thus, Section “5106(B)(1) caps the liability for . . . the State at

$500,000.00.” Sahota v. Cobb, No. CIV.A. 14-2722, 2015 WL 6835480, at *3 (W.D. La. Nov. 6,

2015), judgment entered, No. CIV.A. 14-2722, 2015 WL 6830755 (W.D. La. Nov. 6, 2015).

“Section 13:5112 sets the time for accrual and rate of legal interest on any personal injury claim

against a political subdivision of the State” or the State. Id.

The Supremacy Clause of the United States Constitution provides:

This Constitution, and the Laws of the United States which shall be

made in Pursuance thereof; and all Treaties made, or which shall be

made, under the Authority of the United States, shall be the Supreme

Law of the Land; and the Judges in every State shall be bound

thereby, any thing in the Constitution or Laws of any State to the

Contrary notwithstanding.

Id. (quoting U.S. Const. art. VI, cl. 2). As the Western District has explained:

It has long been established that “a state statute is void to the extent

that it actually conflicts with a valid federal statute”; said conflict is

found where compliance with both federal and state law is

impossible or if the state law stands as an obstacle to the

accomplishment and execution of the full purposes and objectives

of Congress.

Id. at *4 (quoting Edgar v. Mite Corp., 457 U.S. 624, 631 (1982). Thus, Plaintiff is correct that

applying these statutes to his § 1983 claim would run afoul of the Supremacy Clause. See id.

(granting plaintiff’s motion for partial summary judgment on defenses under La. R.S. §§ 13:5106

and 13:5112).

However, Defendants make clear that this defense applies only to Plaintiff’s state law

claims, and the Court is satisfied with that. See Asante-Chioke v. Dowdle, No. CV 22-4587, 2024

WL 2863379, at *5 (E.D. La. June 6, 2024) (Barbier, J.) (denying motion to strike this defense

because, “Although Defendants’ answers do not specify that these defenses apply to Plaintiff's

state law claims, the notice pleading requirement for affirmative defenses does not require such

specificity.”).

Plaintiff argues that Defendants have failed to show how this law applies in federal court,

but the Court disagrees. Rather, the Court finds that Plaintiff has failed to meet her initial summary

judgment burden of showing how a state law can run afoul of the Supremacy Clause when it in no

way conflicts with any federal law (like § 1983). Without more, Plaintiff has waived the argument,

and on this additional ground, the motion will be dismissed. See JMCB, LLC v. Bd. of Com. &

Indus., 336 F. Supp. 3d 620, 634 (M.D. La. 2018) (deGravelles, J.); Payton v. Town of Maringouin,

No. CV 18-563-JWD-EWD, 2021 WL 2544416, at *26 (M.D. La. June 21, 2021) (deGravelles,

J.), aff'd, No. 21-30440, 2022 WL 3097846 (5th Cir. Aug. 3, 2022) (collecting authorities).4

For all these reasons, Plaintiff’s motion for partial summary judgment on this affirmative

defense will be denied. The defense remains viable for Plaintiff’s state law claims against the State.

IV. CONCLUSION

Accordingly,

IT IS ORDERED that the Motion for Partial Summary Judgment (Doc. 31) (“Pl. MSJ”)

filed by Plaintiff Kevin Sam is GRANTED IN PART and DENIED IN PART. The motion is

GRANTED in that, as a matter of law, the Court finds that Bryd is not entitled to discretionary

immunity under La. R.S. § 9:2798.1. In all other respects, the motion is DENIED.

Signed in Baton Rouge, Louisiana, on November 10, 2025.

S

JUDGE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

4 The Corut notes that, in Sahota, the Court does not specify whether this defense is precluded only for the § 1983

claims or whether it is precluded for state law claims as well. See 2015 WL 6835480, at *4. The authority cited by

Sahota refer to § 1983 and Title VII. Id. Thus, the Court narrowly construes this ruling. To the extent the Court

misreads Sahota, the Court opts instead to adopt Judge Barbier’s reasoning in Asante-Chioke.