Petition for Writ of Certiorari — Clarence Joseph Jason, Petitioner v. Robert Tanner, Warden, et al.

Supreme Court briefDec 5, 2019

Ask Donna

What actually matters in this document.

Text

Case: 18-30837

Document: 00515109438

Page: 1

Date Filed: 09/09/2019

L‘

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 18-30837

FILED

September 9, 2019

Lyle W. Cayce

Clerk

CLARENCE JOSEPH JASON,

Plaintiff-Appellee,

ROBERT TANNER, Warden, Rayburn Correctional Center; SHANE

LADNER, Lieutenant; BRADLEY PIERCE, Sergeant,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of Louisiana

Before SMITH, GRAVES, and WILLETT, Circuit Judges.

DON R. WILLETT, Circuit Judge:

Clarence Jason was struck by a fellow inmate on the back of the head

with a yard tool that the prison issued to inmates. Jason sued four state

officials under § 1983 for violating his Eighth Amendment rights, claiming

deliberate indifference and failure to train. The officials asserted qualified

immunity, but the district court granted it only to one official. The other three

appeal that denial. We REVERSE and grant qualified immunity to all four

officials.

Clarence Jason was an inmate at a Louisiana prison. The prison has an

inmate yard that features a football field, a baseball field, and a basketball

court. One day while Jason was on the yard, a fellow inmate struck him on the

WC.U-V

Case: 18-30837

Document: 00515109438

Page: 2

Date Filed: 09/09/2019

No. 18-30837

back of the head with a sling blade. A sling blade is a manual weed-cutting tool

consisting of a long wooden handle with a heavy (often hooked) steel blade at

the end. The attacker had a sling blade in the first place because Sergeant

Master Bradley Pierce had issued it to a third (and otherwise uninvolved)

inmate as part of a program in which inmates tended the yard.

The prison issued a few sling blades each morning. To check out a sling

blade, an inmate handed over his ID card. (An inmate relies on his ID for

meals, attending educational programs, visitation privileges, and “virtually

anything else” that requires leaving his unit. So, apparently, the exchange was

a meaningful accounting measure.) Meanwhile, officers supervised the

inmates by making periodic rounds in the yard.

Despite this ID-exchange protocol, one inmate with a sling blade

abandoned his tool and wandered off. Before the supervising officer noticed,

the attacker picked up the discarded blade and cracked Jason’s skull from

behind. The blow caused Jason “severe head trauma.”

Right before this, Jason had gotten into an argument with his attacker.

But other than that, Jason alleges no previous disputes with him. The prison

discovered the attack when the supervising officer, Lt. Shane Ladner, came

across a pool of blood and a broken sling blade while on patrol. At that point,

Ladner radioed for help, and the officers nabbed the attacker.

All of this happened despite the prison’s Tool Control Policy. The warden,

Robert Tanner, testified that he and several other prison officials drafted the

Tool Control Policy; that the policy is reviewed annually; and that the

American Correctional Association found that the tool policy complied with its

standards in every audit since 1993.

The Tool Control Policy instructs the prison on how to inventory and

categorize various tools—like “restricted tools” and “compound maintenance

tools. Jason seemed to imply in his brief that sling blades were restricted tools.

Case: 18-30837

Document: 00515109438

Page: 3

Date Filed: 09/09/2019

No. 18-30837

And the district court too determined that they were restricted tools. But

according to the prison officers, “swing blades and other similar yard tools . . .

(such as shovels, reel mowers, and hoes)” weren’t classified as restricted.

Presumably, they may have been classified as “compound maintenance tools.”

In any event, under the policy, the prison stores yard tools in a locked

storage room while they’re not being used. The prison issued yard tools for two

to three hours at a time. And the officers testified that, under the policy, they

“received regular, ongoing training ... to ensure the safety and security of the

inmates.”

As for monitoring the yard, Ladner and Pierce testified that

1. They both make rounds;

2. Two “dorm officers” “observe the yard through the dorm

windows during their [dorm] rounds”;

3. Several tower cameras at the fence line continually show

yard activity;

4. The “Gate” officer has a line of sight “over the front portions

of [the yard]”; and

5. So do “officers stationed at the gym, and the laundry, and

the vo-tech building” as well as the Gate officer for another,

nearby prison unit.

But none of these measures prevented this attack.

Going “at least as far back as 2007,” there had been “no prior assaults by

inmates with a yard tool at [the prison].” And “during the previous seven-year

period, there [had] only been four incidents”—three with a broom and one with

a mop.

Jason filed a § 1983 suit asserting violations of his Eighth

Amendment rights. He sued:

• Shane Ladner, Lieutenant at the prison;

• Bradley Pierce, Sergeant Master at the prison;

UV.VA- ^

Case: 18-30837

Document: 00515109438

Page: 5

Date Filed: 09/09/2019

No. 18-30837

III

“The denial of a motion for summary judgment based on qualified

immunity is immediately appealable notwithstanding that such denial was

premised upon the existence of ‘material issues of fact.’”1 We have jurisdiction

to review only the district court’s legal analysis of qualified immunity.2

We review the denial of qualified immunity de novo.3 In doing so, we

assess the scope of established rights and the reasonableness of officer

conduct.4 Summary judgment is appropriate only if “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a

matter of law.”5 In reviewing, we consider only “the scope of clearly established

law and the objective reasonableness” of the defendant’s acts (as determined

by the district court).6 As we’ve explained, we “can review the materiality of

any factual disputes, but not their genuineness.”7

Materiality challenges “contendQ that taking all the plaintiffs factual

allegations as true no violation of a clearly established right was shown.”8 And

we must view the facts in the light most favorable to the plaintiff.9

As the Supreme Court explained in Harlow, government officials have a

right to qualified immunity when carrying out their duties.10 But that

1 Thompson v. Upshur Cty., 245 F.3d 447, 455 (5th Cir. 2001) (alteration omitted)

(quoting Behrens v. Pelletier, 516 U.S. 299, 3134 (1996)).

2 Southard v. Tex. Bd. of Criminal Justice, 114 F.3d 539, 552 (5th Cir. 1997).

3 Thompson, 245 F.3d at 456.

4 Freeman v. Gores, 483 F.3d 404, 410 (5th Cir. 2007).

5 Fed. R. Civ. P. 56(a).

6 Thompson, 245 F.3d at 456.

7 Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc) (emphasis in original)

(quoting Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000)).

8 Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 379 (5th

Cir. 2005).

9 Southard, 114 F.3d at 552.

10 Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982).

LxW\Vn\ ~ K

Case: 18-30837

Document: 00515109438

Page: 6

Date Filed: 09/09/2019

No. 18-30837

immunity is not absolute. Plaintiffs can go to trial if they show that the official

violated their clearly established right.11 In other words, it’s a two-prong test—

(1) whether the official violated a right; and (2) whether that right was clearly

established.

The constitutional right here is the Eighth Amendment’s protection

against cruel and unusual punishment. As the Supreme Court explained in

Farmer12 and as we reiterated in Williams, “prison officials have a duty to

protect prisoners from violence at the hands of other prisoners.”13 For claims

against officials who failed to adequately protect an inmate and who failed to

train, there are different tests. But both largely turn on the existence of

“deliberate indifference.”

The Supreme Court’s 1994 Farmer decision held that prison officials

violate their duty to protect prisoners under the Eighth Amendment “only

when two requirements are met.”14 First, as an objective matter, the

deprivation or harm must be “sufficiently serious.”15 Second, the official must

have been deliberately indifferent.16

The Supreme Court defined the first element—sufficient seriousness—

as the “denial of the minimal civilized measure of life’s necessities.”17 Jason

sustained a serious head wound. So his injury meets the first requirement of

the Farmer standard.

11 Id.; see also Hogan v. Cunningham, 722 F.3d 725, 734 (5th Cir. 2013); Ontiveros v.

City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009).

12 Farmer v. Brennan, 511 U.S. 825, 833 (1994).

13 Williams v. Hampton, 797 F.3d 276, 280 (5th Cir. 2015) (en banc) (quoting Farmer

511 U.S. at 833).

14 Farmer, 511 U.S. at 834.

15 Id. (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).

16 Id.

17 Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).

Case: 18-30837

Document: 00515109438

Page: 7

Date Filed: 09/09/2019

No. 18-30837

As for deliberate indifference, the Supreme Court defined it as when the

official “knows of and disregards an excessive risk to inmate health or safety.”18

In other words, it’s a subjective test. Elaborating, the Supreme Court

explained: “[Tjhe official must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists, and he must also

draw the inference. This approach comports best with the text of the

Amendment as our cases have interpreted it. The Eighth Amendment does not

outlaw cruel and unusual ‘conditions’; it outlaws cruel and unusual

‘punishments.’”19

But the district court seemed to misapply the test. The court determined

that Ladner and Pierce knew the risk. But the court failed to identify evidence

indicating that they knew of a “substantial risk” that a fellow inmate would

attack Jason. Ladner and Pierce acknowledged that there was a risk that an

inmate could use a sling blade to attack someone. But there were measures in

place to prevent that. A substantial risk requires more.

The district court next concluded that Ladner and Pierce disregarded

that risk. The court’s rationale? Ladner and Pierce couldn’t prove that

everyone who was supposed to keep watch in fact had a line of sight and

actually watched the inmates—at all times. Plus, neither Ladner nor Pierce

witnessed the assault. But that doesn’t show disregard of a risk.

Ladner and Pierce’s jobs were simply to keep track of the blades and to

keep an eye on the prisoners while they made their rounds. Jason never

alleged, and the district court never asserted, that Ladner and Pierce shirked

their duties; that they handed out sling blades and then failed to do their

18 Id. at 837.

19 Id.

Case: 18-30837

Document: 00515109438

Page: 8

Date Filed: 09/09/2019

No. 18-30837

rounds. The sad reality is simply that, in this case, the prison’s protocol wasn’t

enough to keep Jason safe.

Consider our 2015 en banc opinion Williams.20 There, one of the prison

guards—Hampton—failed to check that her block gun was loaded. It was

supposed to contain a hard, nonlethal rubber slug. But it was empty. And after

the relieving officer traded places with Hampton, prisoners escaped from their

exercise pens, attacking fellow inmates who later sued.21

In its internal investigation, the prison found that Hampton violated her

duties, thus threatening the safety of the prisoners and her fellow guards.22

Even so, we still granted her qualified immunity. There was no evidence that

Hampton knew the block gun was unloaded when she handed it to the relieving

officer.23 So she didn’t realize there was “an excessive risk to inmate safety or

that she disregarded such a risk.”24 And we also emphasized that there was

“no evidence that any inmate had escaped from the exercise pens prior to the

day of the attacks at issue.”25 In granting qualified immunity, we stressed that

deliberate indifference “has its genesis in the cruel and unusual punishments

clause of the Eighth Amendment.”26 Yet these “acts or omissions did not

amount to punishment.”27

Here, there was no evidence that Ladner and Pierce shirked their duties.

No one alleges that they themselves did anything wrong. And even in Williams,

when the defendant had made a mistake, that alone still wasn’t enough to

20 797 F.3d at 278-80.

21 Id.at 279-80.

22 Mat 286.

23 Id. at 287.

24 Id. at 288.

25 Id. at 289.

26 Id.

27 Id.

Case: 18-30837

Document: 00515109438

Page: 9

Date Filed: 09/09/2019

• »

No. 18-30837

defeat qualified immunity. What’s more, there was no evidence that any

inmate had ever before attacked a fellow inmate with a sling blade.

Admittedly, one might have reservations about the sensibility of giving

inmates sling blades to begin with. But under our en banc-decision in Williams,

Ladner’s and Pierce’s alleged individual conduct doesn’t rise to deliberate

indifference. They should thus be immune from suit.

Turning to Tanner: Section 1983 liability for supervisory officials hinges

on a three-part test, which we reiterated in our 2001 Thompson opinion.28

First, the supervisor must’ve failed to train the officers involved. Second, that

failure to train must’ve caused the violation of the plaintiffs rights. Third, the

failure to train must’ve constituted deliberate indifference.29

The district court held that Tanner failed to adequately train his officers.

The court held so because it found “that in 15 years, Defendant Pierce received

only 15 minutes of documented training related to ‘tools,’ and Defendant

Ladner, in 24 years of service, received 5.5 hours of ‘tools’ training, all prior to

2009.” The appellants urge that our 2005 Roberts opinion cautioned that

adequacy-of-training assessments should consider all training provided rather

than be construed too narrowly.30 We read Roberts differently, as focused on

the training “in relation to the tasks the particular officers must perform.”31

Even so, it wasn’t the lack of training that caused the risk to Jason.

Rather, it was the sufficiency of the overall protocol—having only two guards

making rounds and relying on other guards peering out of windows. But that

situation might have been a mere reality of the prison’s budget.

28 Thompson, 245 F.3d at 459.

29 Id.

30 Roberts v. City of Shreveport, 397 F.3d 287, 293-94 (5th Cir. 2005)).

31 Id. (quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)).

Case: 18-30837

Document: 00515109438

Page: 10

Date Filed: 09/09/2019

No. 18-30837

Regardless, even if the district court were right about the first two

requirements,

its

deliberate-indifference

analysis runs

aground.

The

deliberate-indifference requirement stems from the Supreme Court’s ruling in

Monell some 40 years ago, rejecting pure respondeat superior liability

under § 1983.32 It was only eight years ago that the Supreme Court, in

Connick, fully elaborated on deliberate indifference. In the Court’s words:

“Deliberate indifference is a stringent standard of fault, requiring

proof that a municipal actor disregarded a known or obvious

consequence of his action.” Bryan Cty. [u. Brown, 520 U.S. 397, 410

(1997)]. Thus, when city policymakers are on actual or constructive

notice that a particular omission in their training program causes

city employees to violate citizens’ constitutional rights, the city

may be deemed deliberately indifferent if the policymakers choose

to retain that program.33

In Connick, the Supreme Court considered “whether a district attorney’s

office may be held liable under § 1983 for failure to train based on a single

Brady violation. 34 The case had to do with a supposed armed robbery and

murder. Despite convictions for both charges, Thompson (the plaintiff) was

innocent. It was only after nearly two decades in prison—one month from

execution that Thompson’s investigator discovered exculpatory evidence that

the prosecution failed to turn over. The reviewing court vacated both of his

convictions. And he sued the district attorney in his official capacity.35

The jury found the district attorney’s office liable for failing to train the

prosecutors. 36 On appeal, Connick (the DA) insisted that it was wrong to find

him “deliberately indifferent to an obvious need for more or different Brady

32 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694-95 (1978).

33 Connick v. Thompson, 563 U.S. 51, 61-62 (2011) (alteration omitted).

34 Id. at 54.

35 Id.

36 Id. at 57.

Case: 18-30837

Document: 00515109438

Page: 11

Date Filed: 09/09/2019

No. 18-30837

training because there was no evidence that he was aware of a pattern of

similar Brady violations.”37 But we affirmed. And rehearing the case en banc,

we again affirmed—this time with a down-the-middle, even split. The Supreme

Court reversed.

The Supreme Court held that to “prove deliberate indifference,

Thompson needed to show that Connick was on notice that, absent additional

specified training, it was ‘highly predictable’ that the prosecutors in his office

would be confounded by those gray areas and make incorrect Brady decisions

as a result. In fact, Thompson had to show that it was so predictable that failing

to train the prosecutors amounted to conscious disregard for defendants’ Brady

rights.”38 In other words, there needed to be a pattern of previous violations.39

Justice Scalia’s concurrence elaborated on deliberate indifference. He

explained that a “theory of deliberate indifference” which allowed liability

despite “no pattern or practice of prior violations” would effectively “repeal the

law of Monell in favor of the Law of Large Numbers.”40

Here, there was no repeated pattern of violations. True, there had been

three yard fights with brooms and one with a mop. Now there’s been one with

a yard tool. But prison fights are lamentably common. And three yard fights

with brooms and one with a mop just aren’t enough to constitute a pattern.

Besides, the Supreme Court in Connick required that only very similar

violations could jointly form a pattern.41 In that case, Thompson underscored

that “during the ten years preceding his armed robbery trial, Louisiana courts

had overturned four convictions because of Brady violations by prosecutors in

37 Id. at 58.

38 Id. at 71.

39 Id.

40 Id. at 73 (Scalia, J., concurring).

41 Connick, 563 U.S. at 62.

Case: 18-30837

Document: 00515109438

Page: 12

Date Filed: 09/09/2019

No. 18-30837

Connick’s office.”42 Yet those cases weren’t similar enough for the Court.

Similarly, four cleaning-tool incidents don’t create a pattern of violation that

should’ve put the prison on notice for a sling-blade incident.

That’s why in our unreported 2013 Walker case, we held that even a

repeated pattern of violence isn’t by itself enough to prove deliberate

indifference.43 There, the warden put a prisoner in the same cell as a

notoriously violent inmate. The violent inmate killed his new cellmate, and the

dead cellmate s parents sued the prison for failure to train. Yet we held that

the plaintiffs hadn t shown deliberate indifference because they couldn’t prove

it was the lack of training that caused the violation.44

Returning to the cleaning-tool incidents: Even if the district court was

right on causation, there was no pattern of violations. When inmate-on-inmate

violence is a week-to-week regularity, four broom-or-mop incidents over seven

years might not reasonably sound the yard-tool alarm. After all, many

prisoners have devised many creative ways to injure someone—shanks,45

toothbrush shivs,46 ruler shivs,47 ladle shivs,48 tightly-rolled-newspaper spears

(successfully used to kill a guard in 1985),49 or broken black binder clips.50

All of this isn t to say that prisons have no duty to ensure safety. Nor is

it to say that prisoners don’t deserve safety; or that it’s impossible to keep them

42 Id. at 63.

43 Walker v. Upshaw, 515 F. App’x 334, 335 (5th Cir. 2013)

44 Id. at 339-40.

45 Ed Pilkington, Seven Inmates Brutally Killed with Knives in South Carolina Prison

Unrest, GUARDIAN (Apr. 16, 2018), https://www.theguardian.com/us-news/2018/apr/16/7mmates-dead-17-injured-south-carolina-prison-fight.

46 Brent Rose, The Many Insane Flavors of Improvised Prison Weapons, GlZMODO (Oct.

25,

2011), https.//gizmodo.com/the-many-insane-flavors-of-improvised-prison-weapons5853104.

47 Id.

48 Id.

49 Id.

50 Id.

'cV,W\V)\\“ K

Case: 18-30837

Document: 00515109438

Page: 13

Date Filed: 09/09/2019

No. 18-30837

safe. No, that is all far from the truth. Rather, these makeshift-weapon

examples merely demonstrate how prisons often face novel threats. It may well

be impractical to take every single theoretically possible safety precaution.

Besides, there is an exception that will sometimes apply (though not

here): single-incident liability as theorized in City of Canton.51 That exception

allows liability where a municipality “failfed] to train its employees concerning

a clear constitutional duty implicated in recurrent situations that a particular

employee is certain to face.”52

One recent Fifth Circuit case used this exception: Littell,63 There, “$50

went missing during a sixth-grade choir class.”54 No one fessed up. So the

assistant principal took all twenty-two girls in the choir class to the female

school nurse, who strip searched them, taking them one at a time into a

bathroom, where she checked around the waistband of their panties, loosened

their bras, and checked under their shirts.”55 The school district allegedly

permitted school officials to conduct invasive searches” of students. But it did

so with no training whatsoever.56

We found that the facts “mirrorfed] Canton’s hypothetical in all material

respects. 57 But here, there was training. There was also a monitoring system

in place. Again, it just failed to prevent the attack. Put differently: square peg,

round hole. Littell was about a supervisor who didn’t train his subordinates;

not even at all. Had he adequately trained them, they would’ve known not to

51 489 U.S. at 396 (O’Connor, J., concurring).

52 Id.

53 Littell v. Hous. Indep. Sch. Dist., 894 F.3d 616, 625 (5th Cir. 2018)

54 Id. at 619.

55 Id. at 620.

56 Id.

57 Id. at 625.

txVC\V\\ ■ K

Case: 18-30837

Document: 00515109438

Page: 14

Date Filed: 09/09/2019

No. 18-30837

strip search young girls. Yet here, it’s not so much about insufficient training.

Instead, it’s about insufficient protocol.

This was the first and only sling-blade attack in a presumably otherwise

incident-free program. The prison had instituted safety measures against

sling-blade misuse—albeit one that didn’t prevent this attack. But the

Supreme Court’s caselaw and our caselaw emphasize that only inadequate

training can establish vicarious liability. Not simply an inadequate protocol.

In sum, we REVERSE the district court and grant all three appellants

qualified immunity.

t*vc.vA -X

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 1 of 30

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CLARENCE JOSEPH JASON,

Plaintiff

CIVIL DOCKET

VERSUS

NO. 15-607

JAMES LEBLANC, ET AL.,

Defendants

SECTION: “E” (5)

ORDER AND REASONS

Plaintiff Clarence Joseph Jason filed suit against Defendants James LeBlanc,

Robert Tanner, Shane Ladner, and Bradley Pierce, seeking vindication of his Eighth

Amendment rights pursuant to 42 U.S.C. § 1983.1 Before the Court is Defendants’

renewed motion for summary judgment.* Defendants seek a judgment that they are

entitled to qualified immunity on Plaintiffs claims. Plaintiff opposes the motion. 3

(

Defendants filed a reply memorandums

BACKGROUND

This case involves the August 27, 2014 attack on Plaintiff Clarence Jason, an

inmate at Rayburn Correctional Center (“RCC”).s Plaintiff was attacked with a swing

blade wielded by another inmate, Victor Cooper, who picked up the tool after finding it

abandoned in the prison yard.6 Plaintiff alleges Defendants Lieutenant Shane Ladner and

Sergeant Master Bradley Pierce, in their individual capacities, violated his right to

reasonably safe conditions of confinement when the Defendants provided inmates with

(

1R. Docs. 1, 22.

2 R. Doc. 92.

3 R. Doc. 97.

4 R. Doc. 101.

s R. Docs. 1, 22.

DefendSIL^fi^i0 ri°f t?e

backSJound’see the Court’s September 25, 2017 Order and Reasons

2017)

11 motl0n for summary judgment. Jason v. LeBlanc, 2017 WL 4238709 (E.D. La. Sept. 25,

t*Vv\o\ \

-&■

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 2 of 30

unsupervised access to tools that could be used as dangerous weapons.7 Plaintiff also

brings claims against Defendants Robert Tanner, Warden of RCC, and James LeBlanc,

Secretary of the Louisiana Department of Public Safety and Corrections, in their

individual capacities, for failing to train RCC officers.8

On December 27, 2016, Defendants filed a motion for summary judgment,

asserting they are entitled to qualified immunity on Plaintiffs claims.9 The Court was

unable to determine the motion for summary judgment on the failure to protect claim

because the second prong, deliberate indifference, could not be resolved at that time.10 As

explained by the Court, a prison official demonstrates deliberate indifference when he

“knows of and disregards an excessive risk to inmate health or safety.”11 The standard

outlined by Farmer v. Brennan12 requires an evaluation of both the subjective knowledge

and objective reasonableness of each Defendant and, as a result, the Court was required

to consider the individual roles of each defendant in the disputed incidents.^ Based on

the summary judgment record, the Court found it was unable to determine whether Pierce

and Ladner were deliberately indifferent. Because the extent of Pierce’s and Ladner’s

training was disputed, the Court also was unable to rule on Plaintiffs failure to train claim

against Defendants Tanner and LeBlanc. The Court denied the motion for summary

judgment as to all Defendants without prejudice, and allowed discovery limited to the

7 R. Docs. 1, 22. Defendants’ motion to dismiss claims against them in their official capacities, R. Doc. 23,

was granted on August 24, 2015, R. Doc. 26.

8 In Plaintiffs opposition to the motion for summary judgment, he alludes to a separate claim against

Tanner for a failure to supervise. Plaintiffs original complaint does not include a cause of action for failure

to train or supervise. R. Doc. 1. Plaintiff s amended complaint adds only a cause of action for failure to train

R. Doc. 22.

s R. Doc. 51.

10 R. Doc. 73 at 13-15.

11 Id. (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

12 511 U.S. 825 (1994).

* Longoria v. Texas, 473 F.3d 586,592-93 (5th Cir. 2006).

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 3 of 30

relevant issues. * The Court allowed Defendants to refile their motion for summary

judgment after the completion of the limited discovery^

On March 20, 2018, Defendants filed a renewed motion for summary judgment.16

Defendants again assert they are entitled to qualified immunity on all of Plaintiffs claims.

LEGAL STANDARD

Summary Judgment

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate if

“there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.”1? “An issue is material if its resolution could affect the outcome of the

action.”18 When assessing whether a material factual dispute exists, the Court considers

“all of the evidence in the record but refrains from making credibility determinations or

weighing the evidence.”1? All reasonable inferences are drawn in favor of the nonmoving

party.20 There is no genuine issue of material fact if, even viewing the evidence in the light

most favorable to the nonmoving party, no reasonable trier of fact could find for the

nonmoving party, thus entitling the moving party to judgment as a matter of law.21 “A

genuine dispute as to a material fact exists when, after considering the pleadings,

depositions, answers to interrogatories, admissions on file, and affidavits , a court

determines that the evidence is such that a reasonable jury could return a verdict for the

party opposing the motion.”22

14 R. Doc. 73 at 15.

*5 Id.

16 R. Doc. 92.

17 Fed. R. Civ. P. 56.

18 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).

JteSif

pT V'??ati°nwjde Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). See also

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,150-51 (2000).

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

21 Smith v. Amedisys, Inc., 298 F.3d 434,440 (5th Cir. 2002).

22 Haverda v. Hays County, 723 F.3d 586,591 (5th Cir. 2013).

-V

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 4 of 30

II.

Qualified Immunity

Defendants have moved for summary judgment that they are entitled to qualified

immunity from suit.23 Qualified immunity shields federal and state officials from money

damages unless a plaintiff pleads facts showing (l) that the official violated a statutory or

constitutional right, and (2) that the right was ‘clearly established’ at the time of the

challenged conduct.”2* “Qualified immunity ‘gives government officials breathing room

to make reasonable but mistaken judgments,’ and ‘protects all but the plainly

incompetent or those who knowingly violate the law.’”25 As explained by the Supreme

Court, “qualified immunity seeks to ensure that defendants reasonably can anticipate

when their conduct may give rise to liability.”26 In essence, qualified immunity “avoid[s]

excessive disruption of government” by permitting officials to exercise their vested

discretion without fear of civil liability. ”27

Typically, the movant on summary judgment bears the initial burden of

demonstrating the absence of a material fact issue.28 But “[a] good-faith assertion of

qualified immunity alters the usual summary judgment burden of proof, shifting it to the

plaintiff to show that the defense is not applicable.”^ To defeat an assertion of qualified

immunity, a plaintiff must “identify specific evidence in the summary judgment record

demonstrating that there is a material fact issue concerning the essential elements of its

case for which it will bear the burden of proof at trial.”30 “Conclusory allegations and

23 R. Doc. 92.

24 Davidson v. City of Stafford, Texas, 848 F.3d 3841 391 (5th Cir. 2017) (citing Ashcroft v. al-Kidd, 563

U-S. 731, 735 (2011)).

25 Id. (citing Messerschmidt v. Millender, 565 U.S. 535, 546 (2012)).

26 United States v. Lanier, 520 U.S. 259,570 (1997) (internal quotation marks and citations omitted).

27 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

28 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

29 Cass v. City ofAbilene, 814 F.3d 721,729 (5th Cir. 2016).

30 Forsyth v. Barr, 19 F.3d 1527,1533 (5th Cir. 1994).

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 5 of 30

(

denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic

argumentation” are all insufficient to overcome immunity. 31

ANALYSIS

Plaintiff raises claims against Defendants Ladner and Pierce for violating his right

to reasonably safe conditions of confinement by distributing dangerous tools to RCC

inmates and failing to adequately supervise the inmates’ possession and use of those tools.

Plaintiff also brings claims against Defendants LeBlanc and Tanner for failing to properly

train RCC officials. Defendants assert they are entitled to qualified immunity as to all of

Plaintiffs claims. The Court will address each of these claims in turn.

Lieutenant Ladner and Sergeant Master Pierce

The Supreme Court held in Farmer v. Brennan that the Eighth Amendment

imposes a duty upon prison officials to protect prisoners in custody from violence at the

hands of other prisoners.32 The Fifth Circuit, relying on Farmer, set forth the analysis to

be followed when a prisoner’s Eighth Amendment rights allegedly have been violated by

a failure to protect resulting in an attack by a fellow inmate:

It is well established that prison officials have a duty... to protect prisoners

from violence at the hands of other prisoners. It is not, however, every injury

suffered by one prisoner at the hands of another that translates into

constitutional liability for prison officials responsible for the victim’s safety.

A prison official violates the Eighth Amendment only when the inmate

shows that (l) he was incarcerated under conditions the official knew posed

a substantial risk of serious harm and (2) the prison official was deliberately

indifferent to such risk.33

The Fifth Circuit has provided the standard for determining deliberate indifference

in this context:

31 Orr v. Copeland, 844 F.3d 484 (5th Cir. 2016).

32 Farmer, 511 U.S. at 833.

33 Walker v. Upshaw, 515 Fed. App’x 334,338 (5th Cir. 2013) (internal citations omitted). See also Longoria

v. Texas, 473 F.3d 586,592-93 (5* Cir. 2006).

txWvVA - ^

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 6 of 30

A prison official is deliberately indifferent to a risk when he knows of and

disregards an excessive risk to inmate health or safety. To know of a risk, an

official must be subjectively aware of the risk: that is, the official must both

be aware of facts from which the inference could be drawn that a substantial

risk of serious harm exists, and he must also draw the inference. This issue

is a question of fact. Finally, even if a prison official was subjectively aware

of the risk, he may be found free from liability if he "responded reasonably

to the risk, even if the harm ultimately was not averted.”34

The Court already has determined that the Plaintiff in this case was incarcerated

under conditions posing a substantial risk of harm:

In order to show a violation of his Eighth Amendment right, Plaintiff must

first demonstrate that he was incarcerated under conditions posing a

substantial risk of serious harm. 35 “Whether a risk is substantial and the

threatened harm is serious represents an objective test[.]”36 As explained

above, Several courts .. . have noted that the Eighth Amendment may be

violated when prison officials permit inmate access to objects that could be

used as weapons, especially when this conduct is accompanied by a lack of

adequate supervision over the inmates.”37 ln addition, similar to facts in

Goka v. Bobbitt, “the risk to inmate safety from misuse of maintenance and

other tools as weapons is evident on the fact of the tool control policy[.]”38

Plaintiff attaches a copy of RCC s Tool Control Policy to his opposition to

the Defendants’ motion for summary judgment. 39 RCC’s Tool Control

Policy, which has the stated purpose of establishing “procedures that will

ensure adequate control of tools,” explicitly states that “[ojffenders may

only use certain tools,” referred to as “Restricted Tools”, “because of their

potential security risk, within the fenced compound under direct

supervision of staff.”4° RCC’s Tool Control Policy further defines restricted

tools as “implements that can be used to fabricate weapons, or that can be

used as weapons; or that can be used to facilitate an escape.”41 Although the

Tool Control Policy does not include a sling blade in its non-exhaustive list

of examples of restricted tools, the Court finds that it is clear the sling blade

used in the assault at issue is a paradigmatic example of a restricted tool

pursuant to RCC’s own policy.

As the sling blade at issue is clearly a restricted tool, RCC’s own policy

mandates that inmates only be allowed to use the tool when under direct

2011) (quo,i“s Farmer’511 us-at *«>• s“

35 Anderson, 440 Fed. App’x at 381 (5th Cir. 2011) (citing Farmer, 511 U.S. at 834)

3 Hinojosa v. Livingston, 807 F.3d 657, 665 (5th Cir. 2015) (citations omitted).

ST'0"0”’201 F'3d 448,1999 WL .188836 (loth Cir. ,,99).

39 R. Doc. 59-3.

40 Id. at 1, 3 (emphasis added).

4‘ Id. at 3.

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 7 of 30

supervision. Defendants argue that offenders working on the Wind Yard

“are monitored via video monitors by the Unit Key Officer and Lieutenant

using the camera outside of the buildings” and “a Lieutenant and Unit Key

Officer periodically make rounds on the yard to assess the status of all of the

offenders including those working inside the buildings and outside on the

yard.”42 The Plaintiff argues it is clear there was no direct supervision in this

instance. First, Plaintiff points to the affidavit of Darryl Mizell, the Chief

Investigator for RCC, in which Mizell states there is no camera surveillance

monitoring of the Wind recreational yard and that the surveillance cameras

in place are only intended to prevent any escape and therefore are only

directed at the perimeter fence. 43 ln addition, Defendants admit that “After

Sgt. Pierce issued the swing blade to offender Turner, he had no knowledge

that offender Bernard Turner left his assignment or violated the prison

disciplinary rules regarding the issued equipment.” 44 Defendants also

admit it is undisputed that “[w]hile the swing blade was unattended on the

yard, another offender picked it up and used it to attack the plaintiff.”45

Had there been direct supervision, as required by RCC’s own Tool Control

Policy, there would not have been an opportunity for an inmate to leave the

swing blade unattended on the yard, leave the yard altogether, or for

another inmate to pick up the abandoned tool and attack the Plaintiff. Since

it is an undisputed [fact] that this occurred, the Court finds the prison did

not follow its own policies with respect to the supervision of restricted tools

and, thus, the Plaintiff has satisfied his burden in demonstrating that he was

incarcerated under conditions posing a substantial risk of serious harm. 46

The Court also has determined that swing blades are restricted tools under the Tool

Control Policy. 47 The parties agree that the policy defines restricted tools as “implements

that can be used to fabricate weapons, or that can be used as weapons; or that can be used

to facilitate an escape.”48 it is clear that the list of examples of restricted tools is nonexhaustive.49 The parties agree that the swing blade is described as flat, sharp metal plate,

roughly three inches wide by twelve inches long, attached to a three-foot-long wood

42 R. Doc. 51-1 at n 8-9.

43 R. Doc. 59-14 at 118 (citing R. Doc. 51-4, at Iffl 20-21).

44 R. Doc. 51-1 at U 34.

45 Id. at 135.

46 R. Doc. 73 at 11.

47 id. at 11-12.

48 R. Doc. 92-8 at 4.

49 Id. (“Some examples of restricted tools are ... “).

t»WWA-V

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 8 of 30

stick, so The parties further agree that swing blades can be used as a weapon, s1 The Court

therefore reiterates its holding that the swing blade fits the definition of a restricted tool

under the Tool Control Policy.52

The issue remaining to be addressed as to the claims against Pierce and Ladner is

whether these Defendants were deliberately indifferent to this substantial risk of harm.

With respect to this issue, the parties agree there are quite a few undisputed

material facts:

•

In August of 2014, Plaintiff Clarence Jason was an inmate at Rayburn

Correctional Center (“RCC”) in Washington Parish, Louisiana. 53

•

Plaintiff was housed in Wind Unit, a section of RCC that includes four

inmate dormitories, a breezeway that runs between the dormitories, and a

large open-air space referred to as the Wind Yard. 54 The Wind Yard is

expansive, and includes a full-size football field, baseball field, basketball

court, and other recreational spaces.55

•

On work days, the Key Officer for Wind Unit chooses several inmates who

have the appropriate work duty status, assigns each of these inmates a work

area in the yard, and issues each of these inmates a specific yard tool—for

example, a shovel, reel mower, or hoe>

s° R. Doc. 1 at 13.

51 R. Doc. 92-11 at 114 In. 25 - 115 In. 6.

52 Even if the swing blade is not a restricted tool under the Tool Control Policy, the analysis in this case

would remain substantially the same. Clearly, a swing blade is a dangerous tool that can be used as a

weapon. The Defendants either had subjective knowledge of the substantial risk of harm posed by a swing

blade m the hands of an unsupervised inmate, or they should have had such knowledge because the risk

was obvious, and yet they disregarded that risk.

53 R. Doc. 92-1 at H1; R. Doc. 97-1 at H1.

54 R. Doc. 92-1 at H 28; R. Doc. 97-1 at 1 28. RCC has five discrete units: Rain Unit, Wind Unit, Snow Unit

Sun Unit, and Sleet Unit. R. Doc. 92-1 at 111; R. Doc. 97-1 at H 11.

55 R. Doc. 97-7 at 13 (Deposition of Shane Ladner).

56 R. Doc. 92-1 at H19-20; R. Doc. 97-1 at 119-20.

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 9 of 30

•

After asking for volunteers, the Key Officer selects the inmates who receive

yard tools at random from the roughly 300 inmates who are put out into the

Wind Yard. 57

•

The issuance of tools is governed by the RCC Tool Control Policy, the stated

purpose of which is to “ensure adequate control of tools/’ss

•

The policy governs the inventory and identification process for tools, and

assigns various responsibilities to RCC officers.59

•

The RCC Tool Control Policy includes a section on “Restricted Tools.”60

•

According to the RCC Tool Control Policy, restricted tools are “implements

that can be used to fabricate weapons, or that can be used as weapons; or

can be used to facilitate an escape.”61 Examples include axes, box cutters,

files, and hacksaws.62 Because of the potential security risk of issuing such

tools to inmates, the policy mandates that “[o]ffenders may only use

[restricted] tools ... within the fenced compound under direct supervision

of staff?**

•

Swing blades are not expressly listed as restricted tools in the RCC Tool

Control Policy. 64

•

The inmates who are issued tools keep them for approximately two to three

hours at a time. 65

57 R- D°c- 97-1 at H 21. See R. Doc. 92-11 at 59 Ins. 3-15.

59 R Doc 97 4 at 414’ R’ D°C' 971 ^114‘ ^ R' D°C‘ 97’4 (RCC T°01 Contro1 Policy)60 Id.

61 Id.

62 Id.

63 Id. (emphasis added).

64 Id.

63 R. Doc. 92-1 at H 24; R. Doc. 97-1 at 124.

txVnWA1

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 10 of 30

•

On any given day, and on the day of the incident, the Wind Unit is assigned

one Lieutenant Officer, a Key Officer, two Dorm Officers, and a Gate

Officer.66

•

The Lieutenant Officer is the supervisor over the entire Wind Unit, and

makes several “rounds” throughout the unit during the day, but is not

restricted to the Wind Unit premises. 6? On the day of the incident,

Defendant Ladner was the Lieutenant Officer on duty.68

•

The Wind Unit’s Key Officer makes rounds all day throughout the entire

unit, including the Wind Yard.69 On the day of the incident, Defendant

Pierce was the Key Officer on duty. 7°

•

The Dorm Officers are assigned to work in the four dormitories, and do not

conduct rounds on the Wind Yaffil Dorm Officers are able to view parts of

the Wind Yard through the dormitory windows. 72

•

The Gate Officer has line of sight over the front portions of the Wind Yard. 73

•

There are cameras installed on several towers that monitor activity at the

fence surrounding the Wind Unit. 74

66 R. Doc. 92-1 at 130; R. Doc. 97-1 at H 29.

67 R. Doc. 92-1 at 131; R. Doc. 97-1 at 130.

thfassault onPlainti^ ^ ^ at 1129'11 is unclear from the record where Defendant Pierce was during

69 R. Doc. 92-1 at 131; R. Doc. 97-1 at 130.

7° R. Doc. 92-1 at 130; R. Doc. 97-1 at U 29.

- R. Soc. 97-6

^ a* * ^ '7 (DeP°Siti,>n * ^ ^

73 R. Doc. 92-1 at 132; R. Doc. 97-1 at 131.

74 R. Doc. 92-1 at n 32; R. Doc. 97-1 at H 31.

4i'

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 11 of 30

•

No cameras monitor the area of the Wind Yard in which the attack took

place. 75

•

On August 27, 2014, Defendant Sergeant Master Bradley Pierce issued a

swing blade to inmate Bernard Turner to cut the grass on Wind Yard. 76

•

The swing blade consists of a flat, sharp metal plate, roughly three inches

wide by twelve inches long, attached to a three-foot-long wooden stick. 77

•

At some point after Pierce issued the swing blade to Turner, Turner

abandoned the tool in the Wind Yard. 78

•

No RCC officer was watching Turner when he abandoned the swing blade. 79

• After Turner abandoned the swing blade, it was picked up by another

inmate, Victor Cooper, who then beat Plaintiff in his head and back with

it.80

•

No RCC officer witnessed the attack.81

To establish these two Defendants were deliberately indifferent, Plaintiff must

show (l) Pierce and Ladner both had subjective knowledge of the substantial risk of harm,

and (2) both disregarded that risk.8* “Whether a prison official had the requisite

Sw-9^vati (tnSWTS to Interrogatories W Robert Tanner) (“There is no camera that videos the west

side of Wind Yard where the initial attack happened”).

76 R. Doc. 92-1 at H 6; R. Doc. 97-1 at H 6.

77 R. Doc. 1 at, 13. The parties do not dispute Plaintiffs characterization of the tool

78 R. Doc. 92-1 at 17; R. Doc. 97-1 at H 7.

79 R. Doc. 92-1 at H 10; R. Doc. 97-1 at 1 10. Pierce testified that, at the time of the incident he had

knowledge that Turner had abandoned the swing blade. Further, it does not appear from the summary

judgment record that any RCC officii witnessed the abandonment of the tool or the events that immedS

D^l an“tr ^ ^ RCC'Chirf ^gator).

Victor rnnnprV1

dick But Edh?)

6"10 (“We d°n’t know what happened. We never did-were able to prove that

310

ifS °bvi0US somebody did-and, I mean I can’t prove he

82 See Adames v. Perez, 331 F.3d 508,512 (5th Cir. 2003).

tv.VuV>\\ -fc

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 12 of 30

knowledge of a substantial risk is a question of fact subject to demonstration in the usual

ways, including inference from circumstantial evidence[.]”83

Plaintiff points to competent summary judgment evidence showing that Pierce and

Ladner had subjective knowledge of the substantial risk of harm. Defendant Pierce

testified it was “foreseeable” that “the situation like what we’re dealing with” could

happen.84 Pierce also testified that he had read the RCC Tool Control Policy, and was

aware the Policy provided that “offenders may only use certain tools because of their

potential security risk within the fence compound under direct supervision of staff. ”8s

Defendant Ladner testified that “[i]t’s common for [offenders] to use anything they can

get their hands on as a weapon, anything.”8* Ladner conceded that tools “could be used

for assault, and prison staff “should always keep offender and tools in sight.”8? Indeed,

Ladner s testimony emphasizes the fact that, prison inmates can turn almost any object

into a weapon, and that the vigilance of the correctional officers is essential to maintain

inmate safety.88 Ladner testified that he was familiar with the RCC Tool Control Policy,

including its requirements regarding restrictive tools.89 Based on the evidence before the

Court, it appears likely that these Defendants had subjective knowledge of the substantial

risk of harm.90

83 Id. (quoting Farmer, 511 U.S. at 842).

84 R. Doc. 97-6 at 15.

Id. at 22.

R. Doc. 92-11 at 107 Ins. 5-7.

87 Id. at 101.

Di Id.

• It is not necessary

, to ,show that Defendants were aware of any risk specific to the Plaintiff, as the

mintitt need not show that he was especially likely to be assaulted. Farmer, 511 U.S. at 843 (“[I]t does not

matter whether the risk comes from a single source or multiple sources, any more than it matters whether

a pnsoner faces an excessive risk of attack for reasons personal to him or because all prisoners in his

situation face such a nsk. ). Rather, Plaintiff need only show that the officials deliberately ignored a

substantial risk to the safety of all inmates. Id. at 843-44.

89 R. Ddc. 92-11 at 111.

substantial risk o^harm6 ^ diSpUted issues °f faCt aS t0 whether Ladner and Pierce had knowledge of the

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 13 of 30

Even if Ladner and Pierce did not have subjective knowledge of the substantial risk

of harm, “[a] factfinder may conclude that a prison official knew of substantial risk from

the very fact that the risk was obvious.” 9i In Goka v. Bobbitt, the Seventh Circuit

considered a factually similar case. 92 An inmate had been assaulted by another inmate

who was wielding a broom handle which he had been allowed to keep in his cell.93 Under

the tool control policy in effect at that prison, all tools were to be controlled by prison staff

when not in use. The Seventh Circuit found that “the risk to inmate safety from misuse of

maintenance and other tools as weapons is evident on the face of the tool control policy,

which states that the primary purpose of the policy is ‘to minimize the potential danger to

facility security from the misuses of tools.’”94 The same is true in this case. RCC’s Tool

Control Policy, which has the stated purpose of establishing “procedures that will ensure

adequate control of tools,” explicitly states that “[ojffenders may only use certain tools,”

referred to as “Restricted Tools,” “because of their potential security risk, within the

fenced compound under direct supervision of staff. ”95 The Court finds that, even if

Defendant Pierce and Defendant Ladner did not have subjective knowledge of the

substantial and obvious risk posed by handing out potentially dangerous tools to inmates

without appropriate supervision, the risk was so obvious they should have known. 9*

The final issue to be determined is whether Pierce and Ladner were deliberately

indifferent when they disregarded the known risk of harm. The Supreme Court has

Iwanski, 1999 WL1188836, at *2 (quoting Farmer, 511 U.S. at 842).

92 862 F.2d 646 (7th Cir. 1988).

«Id. at 648.

94 Id. at 652.

95 R. Doc. 92-8 at 1,3 (emphasis added).

- ** - the very W,

case.

ExVuVv^" fc'

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 14 of 30

explained that a prison official disregards a known risk “by failing to take reasonable

measures to abate it.” 97 Defendants Ladner and Pierce rest their right to qualified

immunity on their argument that there is “someone watching the inmates at all times”

while the inmates are in Wind Yard and that this defeats a finding that either one of them

disregarded the risk of substantial harm. 98 Defendant Tanner, the warden in charge of

the facility, testified that the direct supervision required under the Tool Control Policy is

“eyes on them,”99 and that “for a restricted tool they need to be in sight.”100 To show that

they were “watching” the inmates and, as a result, did not disregard the risk of substantial

harm, Pierce and Ladner must show that an RCC official had a direct line of sight and was

actually looking at all inmates while they used restricted tools.

Plaintiff bears the burden of establishing that there are contested issues of material

fact with respect to whether Ladner and Pierce were deliberately indifferent. To meet this

burden, Plaintiff argues that whether the Defendants met this standard while the inmates

with restricted tools were in the Wind Yard is a disputed issue of fact. Plaintiff notes that

“Defendants’ testimony establishes that at any given moment, Defendant Pierce might be

the sole officer indirectly supervising 300 inmates, some armed with tools that can be

used [as] dangerous weapons.”101 Defendant Pierce testified that, as the Key Officer, he

did not maintain a direct line of sight over all the inmates in the yard while he made

rounds throughout the unit. When asked, “[y]ou didn’t have a direct line of sight at all

times, though?” Defendant Pierce responded, “No. ” 102 As the officer most directly

97 Farmer, 511 U.S. at 847.

98 R. Doc. 92-1 at H 33.

99 R. Doc. 92-9 at 78 Ins. 5-6.

100

Id. at 79 Ins. 11-12’

101

R. Doc. 97-1 at 130.

102

R. Doc. 92-10 at 143 Ins. 11-13.

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 15 of 30

responsible for monitoring the inmates in Wind Yard, Defendant Pierce’s view of the yard

would be critical to satisfying the Policy’s mandate of “direct supervision” over inmates

using restricted tools.

As noted above, the Wind Yard is quite large, and includes a full-size football field,

a full-sized baseball diamond, and other recreational spaces. 103 It would likely be

impossible for one officer to actually watch all the inmates with restricted tools while they

were in the Wind Yard, and the assistance provided by other officers is far from clear. 104

Defendant Ladner testified that, as the Wind Unit Lieutenant, he is not restricted to the

Wind Unit, and he would at times be “off-unit” 10s and, as a result, he could not have been

in a position to observe the inmates in the Wind Yard. Defendant Ladner also conceded

that “the two dorm officers are confined to the dormitory,”106 and, as a result, the dorm

officers could only see the Wind Yard through various windows. Ladner, in what appears

to be self-contradictory testimony, testified “they might not have their eyes on that

offender, but there is someone watching them at all times.”10? Ladner, in other deposition

testimony, admitted that “there’s not necessarily an officer there every minute.”108 The

parties do not dispute that the Gate Officer has only line of sight over the front portions

103

R. Doc. 92-ii at 51 Ins. 8-20.

w DeitndantS testimony suggests that RCC officers more closely supervised inmates in the recent past. As

fiaintitt notes, until roughly four years ago, inmates worked during the day in the fields, and were directly

supervised by gun guards. R. Doc. 97-1 at H 84. Defendant Pierce explained that “[t]hey’d go out there to cut

grass . [and officers would] walk[] around while they’re cutting die grass—they’re cutting the grass with

swing blades-and you [would] have four gun guards that surround them.” R. Doc. 92-10 at 13 In. 21 - 14

n. 9. Defendant Ladner testified that “[w]e used to have 6o-something officers assigned to the field. Now

we have three. R Doc. 92-11 at 85. “In order to properly execute the sentence of hard labor, which is one

of KeithBkkham^’

°ffender ^must haveJ aJob to the extent possible.” R. Doc. 51-3 at H 32 (affidavit

105 R. Doc. 92-11 at 45 Ins. 2-18 (“I might be escorting someone to this unit, or escorting someone to this

unit, or coming up here to the control center to pick up something here so, yes, anywhere on the

compound.”).

106 R. Doc. 92-11 at 53 Ins. 20-21.

107 Id. at 101 Ins. 16-19.

108 Id. at 62 Ins. 8-9.

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 16 of 30

of the Wind Yard.1Q9 The cited passages of the Defendants’ depositions indicate, at best,

that various staff members, assigned throughout the Wind Unit, have some line of sight

over the inmates in Wind Yard at various times, and that these officers occasionally

witness disciplinary infractions by inmates.no Ladner testified, pointing to locations on a

photograph of Wind Unit, “you have officers stationed here (indicating), that can see all

of this. You have officers stationed here that can see all of this.. . you have this camera

that is watching all of this, a camera here that’s watching all of this... .”m This testimony

does not establish that officers were watching all inmates with restricted tools in the Wind

Yard at all times. The Court cannot see to which areas of the Wind Yard Ladner was

pointing and the Defendants did not capture the meaning of his testimony by having him

mark up an exhibit that was then attached to his deposition.

Defendants did not produce summary judgment evidence to show which portions

of the Wind Yard can be seen from the dormitory windows or that the area in which the

assault took place could be seen from them. Neither did Ladner or Pierce produce

evidence that any of the Dorm Officers saw or could have seen Turner abandon the swing

blade in the Wind Yard or the subsequent assault. Further, it is undisputed that cameras

only monitor a portion of the Wind Yard, and that no cameras monitor the area in which

the attack took place.112

Neither Pierce nor Ladner, nor any other officer, saw Turner abandon the tool, and

no officer witnessed the attack on the Plaintiff. n3 It appear^ from the record that the

109

R. Doc. 92-1 at 132; R. Doc. 97-1 at 131.

110 R. Doc. 92-10 at 168 Ins. 15-25; R. Doc. 92-11 at 104 Ins. 8-18.

111 R. Doc. 92-11 at 101 In. 24 - 102 In. 1-8.

Tanner) rThere is no ™that "deos *■»

“3 R. Doc. 92-1 at H10; R. Doc. 97-1 at H10.

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 17 of 30

assault was not discovered until Defendant Ladner discovered “a large amount of blood

and a broken swing blade” on the Wind Yard “4 Had there been “eyes on”“s supervision

of the inmates in the Wind Yard “at all times,as Defendants claim, a guard would have

seen the abandonment of the tool and the assault.

Summary judgment in qualified immunity cases is appropriate only if the

plaintiff fails to “identify specific evidence in the summary judgment record

demonstrating that there is a material fact issue concerning the essential elements of

its case for which it will bear the burden of proof.”11? The Court finds the Plaintiff has

established that there are genuine disputes of material fact with respect to whether

there were RCC officials actually looking at inmates with restricted tools all times while

they were in Wind Yard. Because Ladner and Pierce rest their right to qualified

immunity on this assertion, which remains in dispute, the Court is unable to determine

whether Ladner and Pierce took, or failed to take, reasonable measures to abate the risk

of substantial harm presented by the use of potentially dangerous tools by inmates in

the Wind Yard.118 Accordingly, the Court denies summary judgment on the issue of

whether Pierce and Ladner are entitled to qualified immunity. n9

114 R. Doc. 92-1 at 111; R. Doc. 97-1 at H11.

us R. Doc. 92-9 at 78 Ins. 5-6.

116 R. Doc. 92-11 at 101 Ins. 16-17.

1,7 0rr v- Copeland, 844 F.3d 484 (5th Cir. 2016).

iSrn°tT+makirg 3 detelrmination at this staSe *at the Defendants are not entitled to

LkinglXZ^Sa^n

8“

* Se"Ume ™ °f ma'erial taCt PreC‘Ude the C™*

119 The Fifth Circuit has jurisdiction to review a district court’s denial of summary judgment with respect to

qualified unmumty only to the extent that the appeal concerns the purely legal question whether the

defendants are entitled to qualified immunity on the facts that the district court found sufficiently

supported in the summaiy judgment record.” Hamilton v. Kindred, 845 F.3d 659, 661 (5th Cir 2017)

Weaver, 367 F^d 337, 347 fcth Cir. 2004)). The Fifth Circuit Wfthe power to

revmw the Strict court s decision that a genuine factual dispute exists and instead considers] only whether

the distnct court erred m assessing the legal significance of conduct that the

district court deemed

sufficiently supported.” Id. (internal quotations omitted).

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 18 of 30

II.

Warden Robert Tanner

Defendants also move for summary judgment that Defendant Tanner is entitled to

qualified immunity with respect to Plaintiffs claim that Tanner failed to properly train

RCC officials on the use of dangerous tools by inmates. Officials are not subject to liability

under 42 U.S.C. § 1983 for acts or omissions of their subordinates on the basis of

respondeat superior.120 However, a supervisory official may be liable for a constitutional

violation if (1) the supervisor failed to train the subordinate officer; (2) a causal link exists

between the failure to train and the violation of the plaintiffs rights, and (3) the failure to

train amounts to deliberate indifference.121 To defeat qualified immunity, the Plaintiff

must show that all three factors have been met or that disputed issues of material fact

exist with respect to some or all of the factors.

The undisputed facts relevant to Ladner’s right to qualified immunity are:

•

Warden Tanner was involved in the drafting and revisions of the RCC Tool

Control Policy. 122

•

The issuance of tools is governed by the RCC Tool Control Policy, the stated

purpose of which is to “ensure adequate control of tools.”123

•

The policy governs the inventory and identification process for tools, and

assigns various responsibilities to RCC officers. 124

•

According to the RCC Tool Control Policy, restricted tools “are implements

that can be used to fabricate weapons, or that can be used as weapons; or

120

Thompson v. Upshur County, 245 F.3d 447, 459 (5th Cir. 2001).

121 Id.

122

R. Doc. 92-1 at 115; R. Doc. 97-1 at 115.

123 R. Doc. 92-1 at H 14; R. Doc. 97-1 at 114. See R. Doc. 97-4 (RCC Tool Control Policy).

124 R. Doc. 97-4.

s. -

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 19 of 30

can be used to facilitate an escape.”12s Examples include axes, box cutters,

files, and hacksaws.126

•

The Tool Control Policy mandates that “[o]ffenders may only use

[restricted] tools ... within the fenced compound under direct supervision

of staff.”12?

•

The Defendants produced Unusual Occurrence Reports (“UORs”) involving

assaults or altercations between inmates from 2007-2009 and 2011-2017 as

well as the Disciplinary Reports involving aggravated fighting from 2010.128

•

During the seven-year period prior to the assault on Plaintiff, there were no

incidents involving assaults with yard tools. 129

•

During the seven-year period prior to the assault on Plaintiff, there were

only four incidents in which an item issued for inmate work assignments

was used in an assault—three incidents involving brooms, and one incident

involving a mop.^o

Failure to Adequately Train

12s Id. at 4.

126 Id.

127 Id.

128 R. Doc. 92-1 at 134; R. Doc. 97-1 at 133. Plaintiff does not contest this statement of fact, but asserts that

” ”Dintiff 03111101 confirm or deny whether Defendants in fact produced

1 ofthe UORs forthe past ten years. R. Doc. 97-1 at H 33. In his deposition, Deputy Warden Keith Bickham

conceded that UORs are periodically deleted, id.

mcKnam

DoC'l2'1 at.J 33;.R-Poc- ?Z~1 at1134'Plaintiff denies this statement of fact, but provides no evidence

to dispute the truth of it. Plaintiffs objection is that, notwithstanding the lack of prior incidents, the risk of

harm to inmates in the Wind Yard was “obvious and foreseeable.” R. Doc. 97-1 at 134. This argument even

durin^the rdevanttinfeperiod3*6 ad*sputeastowhe8ler,herewere’^n^act’Pr*or^sau^ts with a yanHrol

I3° R: Doc; 92-1 at 11 36;

Doc- 97-1 at II 35. Plaintiff denies this statement of fact, but provides

no record

citations to summary judgment evidence to show there is a genuine issue of fact.

ExWiVA - £>"

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 20 of 30

* i

The first prong of the analysis asks whether the supervisor failed to adequately

train the individual officers under his or her command. 131 “For liability to attach based on

an inadequate training claim, a plaintiff must allege with specificity how a particular

training program is defective.” 132 Further, “the focus must be on the adequacy of the

training program in relation to the tasks the particular officers must perform.Ml33

On this issue, the Court finds a genuine dispute of material fact exists as to whether

Defendants Pierce and Ladner, as well as other RCC officials, were adequately trained on

the supervision required when inmates are using dangerous tools in the Wind Yard.

Defendants assert “CSM Pierce and Lt. Ladner both testified that they received regular,

on-going training as to the RCC Tool Control Policy as well as many other RCC policies to

ensure the safety and security of the inmates and the institution itself.’’w Defendant

Ladner testified that “we train on tool policy year-round.” *35 However, Plaintiff has

submitted competent summary judgment evidence calling into question the training the

officers received with respect to the supervision of the use of dangerous tools.*36

Plaintiff relies in part on the training transcripts of Defendants Pierce and

Ladner. *37 These transcripts reveal that in 15 years, Defendant Pierce received only 15

minutes of documented training related to “tools,” and Defendant Ladner, in 24 years of

service, received 5.5 hours of “tools” training, all prior to 2009.138 Defendant Tanner

testified that all training is documented. 139 As a result, if Ladner and Pierce had been

I32^berts V‘ Gty °fShreveP°rt’ 397 F.3d 287, 293 (5th Cir. 2005).

*33 Id.

134 R. Doc. 92-1 at H 25.

133 R. Doc. 97-7 at 20, Ins. 5-6.

136 R. Doc. 97-1 at H 25.

137 R- Docs. 97-13, 97-14.

138 R. Docs. 97-13, 97-14.

139 R- Doc. 92-9 at 67, Ins. 20-25 - 68, In. 20.

■<-

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 21 of 30

trained on the Tool Policy or the supervision of inmates using dangerous tools generally,

it is reasonable to expect that this training would have been documented in their

employment records. Little or no training is reflected in the records and, in the event there

was some limited training on tools, it is unclear what this training entailed, as Defendants

could not produce any training materials, lesson plans, or other records documenting the

content of the training sessions.

Plaintiff also asserts that Defendants own testimony demonstrates that they were

inadequately trained. For example, in his response to interrogatories, Defendant Pierce

represented that he was “not aware of any training dealing with tools,’’ho and Defendant

Ladner represented in his own response to interrogatories that he “can’t recall any specific

training regarding tools.” hx Further, the Defendants’ depositions demonstrate their

misunderstanding of the Tool Control Policy, suggesting that whatever training they did

receive was inadequate to prepare them to implement the policy. For example, Defendant

Tanner, the warden who drafted and adopted the policy, testified that he’s “not the guy

that decides that [certain tools] are restricted,”^ and that the determination of which

tools are restricted should be guided by “common sense.”H3 in contradiction, Defendant

Ladner stated that restricted status “is what is decided by the warden as restricted. ”H4

Moreover, Defendant Pierce’s deposition suggests a troubling unfamiliarity with the RCC

Tool Control Policy. Pierce is unable to articulate what types of tools would be considered

restrictive,” how restrictive tools are identified, or who is responsible for making that

“t0 R. Doc. 97-10 at 3.

141 R. Doc. 97-11 at 4.

142 R- Doc. 92-9 at 77 Ins. 8-9.

143 Id. at 77 Ins. 5-12.

144 R. Doc. 92-11 at 113 Ins. 10-11.

ty.W\V\\ * fc*

Case 2:15-cv-00607-S M- MBN Document 102 Filed 06/13/18 Page 22 of 30

determination. J45 Defendants also maintain different definitions of what constitutes

“direct supervision.” Defendant Tanner, who approved the policy, testified that “direct

supervision ’ means “eyes on them.”1'*6 Defendant Pierce, however, when asked whether

his rounds in the Wind Yard qualified as “direct supervision, explained, “Well, direct

supervision—I’m there. So, as long as I’m still moving, making the rounds, that’s direct

supervision, in my eyes.”^ Defendant Ladner testified that “as long as an officer can see

[the inmates], that’s supervision.” ms Ladner also testified there’s “probably not” a

distinction between direct and indirect supervision. *49

In sum, the Court finds that the Plaintiff has established genuine disputes of

material fact with regard to whether Defendants Ladner and Pierce were adequately

trained on the supervision required over use of dangerous tools by inmates.

Causal Connection

The second prong of the failure-to-train inquiry asks whether “a causal connection

existed between the failure to supervise or train and the violation of the plaintiffs

rights.”160 The Fifth Circuit requires the “failure to train be the ‘moving force’ that caused

the specific constitutional violation.”161 The causal connection “must be more than a mere

“but for’ coupling between cause and effect. The deficiency in training must be the actual

cause of the constitutional violation.” 162 Although “[t]he requirements of proof of

inadequacy of training and causation are, in many respects, intertwined,” a plaintiff must

145 R. Doc. 92-10 at 137-147.

146 R. Doc. 92-9 at 78 Ins. 5-6.

147 R. Doc. 92-10 at 143 Ins. 7-10.

148 R- Doc. 92-11 at 116 Ins. 3-4.

149 Id. at 116 Ins. 18-20.

150 Hobart v. Estrada, 582 Fed. App’x 348, 356 (5th Cir. 2014).

151 Valle v. City ofHouston, 613 F.3d 536, 546 (5th Cir. 2010) (quoting Brown v. Bryan Cty., 219 F.3d 450

461 (5th Cir. 2000)).

152 Id. (quoting Thomas v. Connick, 578 F.3d 293,300 (5th Cir. 2009).

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 23 of 30

submit “ competent summary judgment evidence of [the] causal relationship between any

shortcoming of the officers’ training . .. and the injury complained of.”^ The summary

judgment record must put at issue whether additional training would have avoided the

accident.”^

As explained above, disputed issues of fact prevent the Court from determining

whether a failure to train is established. Assuming the failure to train is established,

however, Plaintiff has put forward sufficient evidence for a reasonable jury to find that

the failure to train is causally connected to the violation of Plaintiffs right. According to

their deposition testimony, Defendants Ladner and Pierce lacked basic knowledge about

the RCC Tool Control Policy; the officers failed to articulate the policy’s standards for

supervision over the use of tools, and misunderstood what tools qualified as “restricted

tools.”!55 Based on the summary judgment record, a jury could reasonably infer that

additional training on the RCC Tool Control Policy would have caused Ladner and Pierce

to comply with the Tool Control Policy by providing direct supervision over the use of the

tools in the Wind Yard, thereby averting the assault. 156 Accordingly, a reasonable jury

could conclude that the lack of training constituted the moving force of Plaintiffs

injury. *57

Deliberate Indifference

The third prong of the failure to train inquiry is whether the failure to train

amounts to deliberate indifference. There are two ways to show deliberate indifference in

153 Pmeda v. City of Houston, 291 F.3d 325, 334 (5th Cir. 2002).

154 Id.

>55 See, e.g R. Doc. 92-10 at 137-147; R- Doc. 92-11 at 116 Ins. 3-20.

'5 ,Even lf 3 swing blade \s not a restricted tool under the Tool Control Policy, it still clearly can be used as

hate averted The assaultd trammS °” ^ supervislon needed for inmates using a swing blade likely would

157 See Bryan County, 219 F.3d at 465.

LxVuV) v\ -

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 24 of 30

a failure to train claim. Usually, a plaintiff presents evidence of a pattern of similar

violations resulting from the deficient training policy.^ in the alternative, a plaintiff may

establish deliberate indifference under the “single incident exception.”159 “This exception

is narrow and requires proof that the highly predictable consequence of a failure to train

would result in the specific injury suffered, and that the failure to train represented the

moving force behind the constitutional violation.

Plaintiff has not presented any evidence showing a pattern of similar violations at

RCC. Plaintiff did not allege such a pattern in his complaint, and, despite Defendant’s

production of nearly a thousand pages of RCC incident reports, is not able to demonstrate

a pattern based on the summary judgment record. Defendants submitted as undisputed

facts that: (l) from at least as far back as 2007 until August 27, 2014, there were no prior

assaults by inmates with a yard tool at RCC;160 and (2) during the seven-year period prior

to the assault on Plaintiff, there were only four incidents in which an item issued for

inmate work assignments was used in an assault.^ Although Plaintiff asserts that these

facts are immaterial or lacking context,162 Plaintiff nevertheless fails to submit any

summary judgment evidence to dispute their truth. As a result, there is no evidence in the

summary judgment record suggesting any pattern of yard-tool-related assaults as a result

of the alleged training deficiency. l63

158 Valle, 613 F.sd at 547.

159 Goodman, 571 F.3d at 395 (citing Brown, 219 F.3d at 457).

160 R. Doc. 92-1 at 135; R. Doc. 97-1 at 134.

161R. Doc. 92-1 at 136; R. Doc. 97-1 at 135. Of these four incidents, three involved brooms and one involved

a mop.

162 R. Doc. 97-1 at 111134-36.

mav^SrtSt8 C0Ti)laiftraJ?0Ut the Defendants’ document production, and suggests that documentation

may east that would establish prior incidents of tool-related assaults. For example, Plaintiff points out that

the Defendants previously provided Plaintiff with a “certification” signed by Deputy Warden Keith that RCC

had no Unusual Occurrence Reports (“UORs”) for inmate assaults involving weapons for the past ten years.

!!nilfLSubsequ/iltlyi:filed a motlon t0 compel, and Bickham admitted in his deposition that the

certification was false because he had not actually looked for UORs for the past ten years. Defendants then

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 25 of 30

As Plaintiff has not introduced evidence of similar incidents, he must establish

deliberate indifference under the single incident exception. As the Fifth Circuit has

explained in the context of Fourth Amendment claims, “typically, application of the single

incident exception requires evidence of the proclivities of the particular officer involved”

in the specific incident or other evidence demonstrating that the constitutional violations

would have appeared to the supervisor as a “highly predictable consequence” of the

training deficiencies. l64

The Fifth Circuit cases examining the single incident exception—ordinarily

addressing Fourth Amendment claims involving the use of excessive force by an

untrained officer-give little guidance with respect to the issues presented in this matter.

For example, in Brown v. Bryan County the Fifth Circuit considered a claim that a sheriff

had failed to train an inexperienced deputy, leading to the use of excessive force by the

deputy against the plaintiff in violation of the Fourth Amendment. l6s In that case, the

court found the jury could have reasonably concluded that it was obvious to the sheriff

that his decision not to train the deputy would result in a constitutional deprivation , even

though the plaintiff had not demonstrated a history of similar violations.166 As later

decisions have emphasized, the Brown court based its decision in part on the fact that the

particular deputy involved demonstrated a proclivity for excessive force that put the

product thousands of pages of UORs. Plaintiff maintains that the UORs produced by the Defendants may

oLnC’ 25 B/Ckh^.test}fied Aat UORs are Periodically deleted and he ‘just doesn’t know how

' tR’ D0C' ?73t

jlai?taff StatCS he “cannot mle out the possibility that UORs documenting prior

re™drrk

C°Urt acknowledges that Defendants’ failure to produce comprehensive

iudtnrnpnt

Ne.v5rt,heless’ltls well-established that the burden of proof in a motion for summary

I?! ™ TnUnity reStS °uthe Plaintiff-See’ e«->Kovadc v- Villarreal, 628 F.3d 20^

t KV

? ( We do not re<luire that an official demonstrate that he did not violate clearly

164

582 Fed. App x at 358 (quoting Valle, 613 F.3d at 549).

1 s 219 F.3d 450,463 (5th Cir. 2000).

166 Id.

txVx\Vv\ " &

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 26 of 30

sheriff on notice that training was necessary.167 Such evidence of an officer’s proclivity for

use of excessive force has no relevance in the Eighth Amendment context when the

plaintiff suffers violence at the hands of his fellow inmate, rather than by an untrained

officer.168

The parties have not directed this Court to, and neither has the Court’s own

research identified, any cases in which the Fifth Circuit has examined the evidentiary

requirements for the single incident exception in Eighth Amendment failure to train cases

in which the failure to train results in an inmate-on-inmate assault. Cases from other

circuits are somewhat helpful. In Thomas v. Cumberland County, for example, the Third

Circuit reversed the district court’s grant of qualified immunity on the plaintiffs § 1983

failure to train claim, finding that a triable issue remained as to whether the county

exhibited deliberate indifference to the need for training of officers in conflict deescalation. l69 The plaintiff in Thomas was an inmate who had been assaulted by another

inmate.170 The plaintiff had not put forward evidence of a pattern of similar constitutional

violations, but the court found the “volatile nature” of the prison would make it more

predictable that the need for such training would be apparent. 171 Because the

circumstances that made an inmate-on-inmate assault likely were present, “the lack of

training here is akin to a failure to equip law enforcement officers with specific tools to

167 See, e.g., Hobart, 582 Fed. App x at 358 (Brown involved “evidence of the proclivities of the particular

officer involved in the excessive use of force”); Valle, 613 F.3d at 549 (“in the one case in which we found a

single incident sufficient to support municipal liability, there was an abundance of evidence about the

proclivities of the particular officer involved in the use of excessive force”).

168 Even in the Fourth Amendment context, the Fifth Circuit has left open the possibility that evidence

unrelated to the proclivities of the officer involved may be sufficient to support a claim under the single

incident exception. See Hobart, 582 Fed. App’x at 358- (“[0]ur case law does not absolutely require

evidence of character traits or proclivities of the officer responsible for the single constitutional

violation...”).

169 749 F.3d 217 (3d Cir. 2014).

170 Id. at 219.

171 Id. at 225.

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 27 of 30

handle recurring situations.”172 The court applied the single incident exception because,

as the Supreme Court noted in City of Canton v. Harris, “the need for training can be said

to be so obvious, that failure to do so could properly be characterized as deliberate

indifference to constitutional rights even without a pattern of constitutional violations.”1^

As a result, the court in Thomas denied summary judgment on qualified immunity.

In the Eighth Amendment context, the single incident exception requires proof

that Defendant Tanner “had sufficient notice” that the failure to train was “obviously

likely” to lead to the violation of Plaintiffs rights.” m This evidence must show the

training deficiencies must have been so obvious that the [constitutional violation] would

have appeared to the [supervisor] a highly predictable consequence.”^ In this case, the

Court finds a genuine dispute of fact exists with regard to whether the need for training is

so obvious that the failure to train constitutes deliberate indifference. Defendants contend

there is no evidence of subjective awareness of a risk of tool-related assault, arguing,

Warden Tanner testified that he was not aware of any issues with the policies and

procedures as to the issuance, supervision, and control of yard tools at RCC.” 176

Defendants misunderstand the analysis, however. In determining whether a risk was so

obvious as to amount to deliberate indifference, the Fifth Circuit conducts an objective

inquiry, asking whether it should have been obvious [to the supervisor] that the highly

predictable consequence of not training” his employees would be to cause Plaintiffs

172 Id.

173 Id- at 223 (discussing City of Canton v. Harris, 489 U.S. 378,390 n.10 (1989))

174 Hobart, 582 Fed. App’x at 357 (quoting Brown, 219 F.3d at 460).

175 Id. (citations omitted).

176 R. Doc. 92 at 7.

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 28 of 30

injury. J77 Based on the summary judgment record, the Court finds a reasonable jury could

conclude the risk should have been obvious to Defendant Tanner.

The summary judgment evidence calls into question whether the RCC officers were

adequately trained regarding the supervision over inmates using dangerous tools. As

Plaintiff convincingly argues, “Defendants’ testimony establishes that at any given

moment, Defendant Pierce might be the sole officer indirectly supervising 300 inmates,

some armed with tools that can be used as dangerous weapons, on a yard so big it includes

a full-size football field, baseball field, basketball court, and other recreational spaces.”178

In a space this large, the lack of comprehensive “eyes on” or monitored camera

surveillance appears to have left areas of the Wind Yard shielded entirely from RCC

surveillance, at least at times. ^9 Given these logistical difficulties, it would be essential for

RCC officers to be trained on what “direct supervision” is required. At this point, the

training Tanner required and provided on this topic for the officers under his command

is in dispute.

Furthermore, as in Johnson, Defendant Tanner acknowledges the potential for

violence among inmates in the Wind Yard is high.l8° It is undisputed that Defendant

Tanner testified that the RCC Tool Control Policy was drafted to address the “obvious”

risk that the inmates might use a yard tool as a dangerous weapon.181 It also is undisputed

that the tool policy itself recognizes that the use of dangerous tools by inmates poses a

security risk because the policy requires “direct supervision” over those tools.182

177 Brown, 219 F.3d at 461 (emphasis added).

178 R. Doc. 97-1 at H 31.

179 R- ?°c- 97-9 at 3 (Answers to Interrogatories by Robert Tanner) (“There is no camera that videos the

west side of Wind Yard where the initial attack happened”).

180 R. Doc. 92-9 at 30 Ins. 11-16.

181 Id.

182 R. Doc. 92-8 at 4.

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 29 of 30

'v.

Defendant Ladner testified that “it’s common for [the inmates] to use anything they can

get their hands on as a weapon, anything.”^ As a result, assuming all disputed facts in

favor of the Plaintiff, a reasonable jury could find that the failure to train RCC officials on

the RCC Tool Control Policy, or otherwise train them with respect to the supervision

needed over inmates using dangerous tools, was “obviously likely” to lead to an assault.

Accordingly, the Court cannot conclude that Defendant Tanner was not deliberately

indifferent as a matter of law. This Court finds that a triable issue of fact exists in this case

as to whether the risk of a tool-related attack created by the failure to train was so obvious

as to constitute deliberate indifference. Accordingly, Defendants’ motion is denied as to

Plaintiffs failure-to-train claim against Defendant Tanner.

III.

Secretary James LeBlanc

Once a Defendant properly invokes qualified immunity, “the plaintiff has the

burden to negate the defense once properly raised.” 184 in Plaintiffs opposition to

Defendant’s motion for summary judgment, Plaintiff fails to present any evidence

whatsoever in support of its claims against Defendant LeBlanc. According, the Court finds

Defendant LeBlanc is entitled to qualified immunity on Plaintiffs claims.

V_.

183 R. Doc. 92-11 at 107 Ins. 5-7.

H°Ilins’551 F’3d 322, 326 (5th Cir. 2008). See also Club Retro, L.L.C. v. Hilton, 568 F 3d

181,194 (5th Cir. 2009) (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009)).

uV\VA-V

Case 2:15-cv-00607-SM-MBN Document 102 Filed 06/13/18 Page 30 of 30

*\s

CONCLUSION

For the foregoing reasons;

IT IS ORDERED that Defendants’ motion for summary judgment with respect

to Defendants Pierce, Ladner, and Tanner is hereby DENIED.

IT IS FURTHER ORDERED that Defendants’ motion for summary judgment

with respect to Defendant LeBlanc is hereby GRANTED.

New Orleans, Louisiana, this 13th day of June, 2018.

SUSIE MOR

UNITED STATES DISTRICT JUDGE

■)

Case 2:15-cv-00607-SM-MBN Document 73 Filed 09/25/17 Page 1 of 15

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CLARENCE JOSEPH JASON,

Plaintiff

CIVIL DOCKET

VERSUS

NO. 15-607

JAMES LEBLANC, ET AL.,

Defendants

SECTION: “E” (5)

ORDER AND REASONS

Before the Court is a motion for summary judgment based on qualified immunity

filed by Defendants James LeBlanc, Secretary of the Louisiana Department of Public

Safety and Corrections (DPSC), Robert Tanner, current Warden of the Rayburn

Correctional Center (RCC), Lt. Shane Ladner, and Sgt. Master Bradley Pierce.1 Plaintiff,

Clarence Joseph Jason opposes this motion.2

(

FACTUAL AND PROCEDURAL BACKGROUND

On February 18,2015, Plaintiff filed his initial complaint regarding an incident that

occurred at the Rayburn Correctional Center (“RCC”) on August 27, 2014.3 Plaintiff filed

an amended complaint on July 6, 2015,4 and a Schulter Reply Brief on September 8,

2015.5 It is uncontested that Plaintiff suffered injuries when he was hit from behind with

a swing blade originally issued by Defendant Pierce to Bernard Turner, another inmate at

RCC.6 At some point after the swing blade was issued to Turner, Turner abandoned the

tool on the prison yard and went inside the prison to watch TV. 7 At this point, another

1 R. Doc. 51.

2 R. Doc. 59.

3 R. Doc. 1.

4 R. Doc. 22.

s R. Doc. 27.

6 R. Doc. 51-1 at 111 30,36; R. Doc. 59-14 at HI 30, 36.

7 R. Doc. 51-1 at 133; R. Doc. 59-14 at H 33.

tAvWA -V

Case 2:15-cv-00607-SM-MBN Document 73 Filed 09/25/17 Page 2 of 15

inmate, Victor Cooper, picked up the swing blade and used it to attack the Plaintiff.8

Plaintiff alleges claims pursuant to Title 42, United States Code, Section 1983 against each

of the Defendants in their individual capacities for violations of his Eighth Amendment

rights and against Defendants LeBlanc and Tanner for their failure train and supervise. 9

On December 27, 2016, Defendants filed their motion for summary judgment

based on qualified immunity.™ On January 3, 2017, the Court granted Plaintiffs motion

for an extension of time to file a response to the Defendants’ motion for summary

judgment.11 On January 24, 2017, Plaintiff filed his response in opposition to the

Defendants’ motion.12 In his opposition, Plaintiff requests that the Court either deny the

Defendants’ motion or defer ruling until discovery has occurred.^

LEGAL STANDARD

Summary Judement

Summary judgment is appropriate only “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/’M “An issue is material if its resolution could affect the outcome of the action.”^

When assessing whether a material factual dispute exists, the Court considers “all of the

evidence in the record but refrains from making credibility determinations or weighing

8 R. Doc. 51-1 at HI 35, 37; R. Doc. 59-15 at HH 35, 37.

9 R. Docs. 1, 22. Defendants motion to dismiss claims against them in their official capacities, R. Doc 23

was granted on August 24, 2015. R. Doc. 26.

’

10 R. Doc. 51.

11 R. Doc. 57.

^ R. Doc. 59.

3 ^oc- 59> at 26. The Plaintiff previously filed a motion to compel discovery pursuant to Rule 37(a)(3)(B)

of the Federal Rules of Civil Procedure. R. Doc. 48. After oral argument on the motion to compel before

Magistrate Judge North, the parties agreed that a stay of discovery is appropriate until Defendants’ pending

motion for summary judgment on the issue of qualified immunity is resolved. R. Doc. 58.

19 Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

18 D/RECTV/nc. u. Robson, 420 F.3d 532,536 (5th Cir. 2005).

Case 2:15-cv-00607-SM-MBN Document 73 Filed 09/25/17 Page 3 of 15

the evidence.”16 All reasonable inferences are drawn in favor of the nonmoving party.

There is no genuine issue of material fact if, even viewing the evidence in the light most

favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving

party, thus entitling the moving party to judgment as a matter of law.18

If the dispositive issue is one on which the moving party will bear the burden of

persuasion at trial, the moving party “must come forward with evidence which would

‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’” *9 If the

moving party fails to carry this burden, the motion must be denied. If the moving party

successfully carries this burden, the burden of production then shifts to the nonmoving

party to direct the Court’s attention to something in the pleadings or other evidence in the

record setting forth specific facts sufficient to establish that a genuine issue of material

fact does indeed exist.20

If the dispositive issue is one on which the nonmoving party will bear the burden

of persuasion at trial, the moving party may satisfy its burden of production by either (l)

submitting affirmative evidence that negates an essential element of the nonmovant’s

claim, or (2) demonstrating there is no evidence in the record to establish an essential

element of the nonmovant’s claim.21 When proceeding under the first option, if the

1! Delta &Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008); see also

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,150-51 (2000).

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

18 Smith v. Amedisys, Inc., 298 F.3d 434,440 (5th Cir. 2002).

Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,1263-64 (5th Cir. 1991) (quoting Golden Rule Ins. Co.

v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).

20 Celotex, 477 U.S. at 322-24.

21 Id. at 331-32 (Brennan, J., dissenting); see also St. Amant v. Benoit, 806 F.2d 1294,1297 (5th Cir. 1987)

(citing Justice Brennan’s statement of the summary judgment standard in Celotex Corp. v. Catrett, 477 U.S.

317, 322-24 (1986), and requiring the movants to submit affirmative evidence to negate an essential

element of the nonmovant’s claim or, alternatively, demonstrate the nonmovant’s evidence is insufficient

to establishan essential element); Fano v. ONeill, 806 F.2d 1262,1266 (citing Justice Brennan’s dissent in

Celotex, and requiring the movant to make an affirmative presentation to negate the nonmovant’s claims

on summary judgment); 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane Federal

Practice and Procedure §2727.1 (2016) (“Although the Court issued a five-to-four decision, the majority

Case 2:15-cv-00607-SM-MBN Document 73 Filed 09/25/17 Page 4 of 15

nonmoving party cannot muster sufficient evidence to dispute the movant’s contention

that there are no disputed facts, a trial would be useless, and the moving party is entitled

to summary judgment as a matter of law.22 When, however, the movant is proceeding

under the second option and is seeking summary judgment on the ground that the

nonmovant has no evidence to establish an essential element of the claim, the nonmoving

party may defeat a motion for summary judgment by “calling the Court’s attention to

supporting evidence already in the record that was overlooked or ignored by the moving

party. ”23 Under either scenario, the burden then shifts back to the movant to demonstrate

the inadequacy of the evidence relied upon by the nonmovant. 24 If the movant meets this

burden, the burden of production shifts [back again] to the nonmoving party, who must

either (l) rehabilitate the evidence attacked in the moving party’s papers, (2) produce

additional evidence showing the existence of a genuine issue for trial as provided in Rule

56(e), or (3) submit an affidavit explaining why further discovery is necessary as provided

■_J

in Rule 56(f). 2s Summary judgment should be granted if the nonmoving party fails to

respond in one or more of these ways, or if, after the nonmoving party responds, the court

determines that the moving party has met its ultimate burden of persuading the court that

there is no genuine issue of material fact for trial.”26

“[Unsubstantiated assertions are not competent summary judgment evidence.

The party opposing summary judgment is required to identify specific evidence in the

and dissent both agreed as to how the summary-judgment burden of proof operates; they disagreed

as to

how the standard was applied to the facts of the case.” (internal citations omitted)).

7 F^st^ational^nk ofArizona v. Cities Service Co., 391 U.S. 253, 288-89 (1980); Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249-50 (1986).

23 Celotex, 477 U.S. at 332-33.

Id.

23 Celotex, 477 U.S. at 332-33,333 n.3.

26 Id.; see also First National Bank ofArizona, 391 U.S at 289.

Case 2:15-cv-00607-SM-MBN Document 73 Filed 09/25/17 Page 5 of 15

record and to articulate the precise manner in which that evidence supports the claim.

‘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.”’2?

II. Qualified Immunity

The doctrine of qualified immunity shields ‘government officials performing

discretionary functions... from liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable p erson

would have known.’”28

Although qualified immunity is nominally an affirmative defense, “the plaintiff has

the burden to negate the defense once properly raised.”2?

The defendant official must initially plead his good faith and establish that

he was acting within the scope of his discretionary authority. Once the

defendant has done so, the burden shifts to the plaintiff to rebut this defense

by establishing that the official’s allegedly wrongful conduct violated clearly

established law. 3°

In resolving questions of qualified immunity at the summary judgment stage, courts

engage in a two-pronged inquiry. 31 “The court must decide whether the plaintiff has

alleged a violation of a constitutional right and whether that right was ‘clearly established’

at the time of the incident.”32

ZRa9T V-TennPipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324:

Forsyth v. Barr, 19 F.3d 1527,1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc , 953 F 2d

909, 915-16 & n.7 (5th Cir. 1992)).

(1982)) V Mullenvc’773 F-3d 712> 718 15th cir- 2014) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

‘-LCV-m,0n'568 F'3d l8l> 194 «■*Cir'2009) (citi"s

30 Jd. (quatingEozan ex rel Bazan v. Hidalgo Cnty., 246 F.3d 866,872 (5th Cir. 1997) (“We do not require

that

plaS^X*

“ ”°‘ ^ dear‘y eStabliShed

31 See Tolan v. Cotton, 134 S. Ct. 1861,1865 (2014).

32 Orr v. Copeland, 844 F.3d 484,492 (5th Cir. 2016).

PreC<,dent P‘aCeS

Case 2:15-cv-Q0607-SM-MBN Document 73 Filed 09/25/17 Page 6 of 15

“[A] plaintiff seeking to overcome qualified immunity must plead specific facts that

both allow the court to draw the reasonable inference that the defendant is liable for the

harm [the plaintiff] has alleged and that defeat a qualified immunity with equal

specificity.”33 “Therefore, even where the qualified immunity defense is raised by motion

for summary judgment, the Court ‘must first determine whether the allegations in [the]

complaint are sufficient to negate [the] assertions of qualified immunity.”’ 34 This

“demands more than bald allegations and conclusory statements.”35 A plaintiff “must

allege facts specifically focusing on the conduct of [the defendant] which caused his

injury.”36

“The qualified immunity defense is appropriately resolved at the summary

judgment stage when (l) a plaintiff has established that the defendant has engaged in the

complained-of conduct dr (2) the court ‘skip[s], for the moment, over ... still-contested

matters to consider an issue that would moot their effect if proved.’”37 “If resolution of

[qualified immunity] in the summary judgment proceeding turns on what the defendant

actually did, rather than on whether the defendant is immunized from liability ..., and if

there are conflicting versions of his conduct, one of which would establish and the other

defeat liability,” then summary judgment is not appropriate. 38 Although summary

judgment ultimately may be appropriate based on a plaintiff s inability to prove the facts

essential to recovery, this “has nothing to do with the qualified immunity defense.”39

33 Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012).

34 Hatcher v. Bement, 2015 WL1511106, at *7 (N.D. Tex. Apr. 3, 2015) (quoting Fleming v. Tunica, 497 F.

App’x 381, 388 (5th Cir. 2012) (alterations in original).

35 Id. (quoting Wicks v. Miss. State Employment Servs., 41 F.3d 991, 995 (5th Cir. 1995)).

s6 Wicks, 41 F.3d at 995.

37 Hatcher, 2015 WL 1511106, at *7 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) and citing

Haverda v. Hays County, 723 F.3d 586,599 (5th Cir. 2013)) (alterations in original).

3g Haverda, 723 F.3d at 599 (quoting Barker v. Norman, 651 F.2d 1107,1123-24 (5th Cir. 1981)).

39 Id.

)

Case 2:15-cv-00607-SM-MBN Document 73 Filed 09/25/17 Page 7 of 15

c. One of the most salient benefits of qualified immunity is protection from pretrial

discovery, which is costly, time-consuming, and intrusive.” 4° Consequently, the Fifth

Circuit has established a careful procedure under which a district court may defer its

qualified immunity ruling if further factual development is necessary to ascertain the

availability of that defense.”41 The Fifth Circuit has explained that “a district court must

first find that the plaintiffs pleadings assert facts which, if true, would overcome the

defense of qualified immunity.” 42 “Thus, a plaintiff seeking to overcome-qualified

immunity must plead specific facts that both allow the court to draw the reasonable

inference that the defendant is liable for the harm he has alleged and that defeat a

qualified immunity defense with equal specificity.”43 “After the district court finds the

plaintiff has so pled, if the court remains unable to rule on the immunity defense without

further clarification of the facts, it may issue a discovery order ‘narrowly tailored to

uncover only those facts needed to rule on the immunity claim.’”44 The Fifth Circuit has

further explained that “[a]n order that simultaneously withholds ruling on a qualified

immunity defense while failing to constrain discovery to develop claimed immunity is by

definition not narrowly tailored. ”45

LAW AND ANALYSTS

Plaintiff filed the instant suit informa pauperis seeking relief from the Defendants

under 42 U.S.C. § 1983 for violations of the Eighth Amendment’s prohibition of cruel and

unusual punishments.

41 j^c^e’ 691 F‘3^ at

Plaintiff sued Defendants Secretary James LeBlanc, Warden

(citing Helton v. Clements, 787 F.2d 1016,1017 (5th Cir. 1986).

42 Id. (citations omitted).

43 Id.

44 Id. (quoting Lion Boulos v. Wilson, 834 F.2d 504,507-08 (5th Cir. 1987)

45 Id. at 649.

LyV\V>A -1

Case 2:15-cv-00607-SM-MBN Document 73 Filed 09/25/17 Page 8 of 15

Robert Tanner, Lt. Shane Ladner, and Corrections Sergeant Master Bradley Pierce, in

their individual capacities pursuant to 42 U.S.C. § 1983 for violations of his Eighth

Amendment rights. Plaintiff alleges the Defendants violated his right to reasonably safe

conditions of confinement when the Defendants provided other inmates with

unsupervised access to tools which could be used as dangerous weapons.

In resolving questions of qualified immunity at the summary judgment stage,

courts engage in a two-pronged inquiry. 46 “The court must decide whether the plaintiff

has alleged a violation of a constitutional right and whether that right was ‘clearly

established at the time Of the incident. ”47 The court may address the questions in either

order. 48

The Court will first address the second prong: whether the right that was allegedly

violated was clearly established at the time of the incident. The Supreme Court has

repeatedly told courts . . . not to define clearly established law at a high level of

generality. ”49 At the same time, “this does not mean that ‘a case directly on point’ is

required.”50 Rather, “clearly established” means that the “contours of the right must be

sufficiently clear that a reasonable officer would understand that what he was doing

violates that right.” 51 In Farmer, the Supreme Court explained that the Eighth

Amendment imposes duties on [prison] officials, who must provide humane conditions

of confinement; prison officials must ensure that inmates receive adequate food, clothing,

46 See Tolan v. Cotton, 134 S. Ct. 1861,1865 (2014).

47 Orr v. Copeland, 844 F.3d 484,492 (5th Cir. 2016).

4g Pearson, 555 U.S. at 227.

(2011)7°" V' SwanSOn’ 659 F‘3d'359, 372 (quoting Ashcroft v. al-Kidd, — U.S. —131 S.Ct. 2074, 2084

5° Id. (quoting al-Kidd, 131 S.Ct. at 2083).

7n?477US ^4^248

^ ^ 44?’457 (5th ^ 2°0l) ^uotinS Anderson v. Liberty Lobby,

Case 2:15-cv-00607-SM-MBN Document 73 Filed 09/25/17 Page 9 of 15

shelter, and medical care, and must ‘take reasonable measures to guarantee the safety of

the inmates.’”52 Further, “Several courts ... have noted that the Eighth Amendment may

be violated when prison officials permit inmate access to objects that could be used as

weapons, especially when this conduct is accompanied by a lack of adequate supervision

over the inmates.”53 The Court finds that the Plaintiffs Eighth Amendment right allegedly

violated by the Defendants was clearly established at the time of the incident.

With respect to the first prong of the qualified immunity standard - i.e. whether

the Defendants violated Plaintiffs constitutional rights - the Supreme Court has

explained, The Constitution ‘does not mandate comfortable prisons,’ but neither does it

permit inhumane ones, and it is now settled that ‘the treatment a prisoner receives in

prison and the conditions under which he is confined are subject to scrutiny under the

Eighth Amendment. 54 in its prohibition of ‘cruel and unusual punishments,’ the Eighth

Amendment places restraints on prison officials, who may not, for example, use excessive

physical force against prisoners.”.ss As explained above, the Eighth Amendment also

imposes a duty on prison officials to “take reasonable measures to guarantee the safety of

the inmates. 56 To succeed on a claim for a failure to protect, an inmate must show that

(l) he was incarcerated under conditions posing a substantial risk of harm; and (2) a

prison official was deliberately indifferent to this risk. 57 “A prison official violates the

Eighth Amendment s prohibition against cruel and unusual punishment when his

‘

54 Farmer, 511 U.S. at 832 (citations omitted).

55 Id. (citations omitted).

56 Id. (citations omitted).

834n(i994)" U' WiMnSOn’ 440 F> APP’X 379’ 381 (5th Cir‘ 2011) (citing Farmer v. Brennan, 511 U.S. 825,

fc*WtVv\

Case 2-15-CV-00607-SM-MBN Document 73 Filed 09/25/17 Page 10 of 15

conduct demonstrates deliberate indifference when he “knows of and disregards an

excessive risk to inmate health or safety.” ss “To know of a risk, an official must be

subjectively aware of the risk: that is, the official must both be aware of facts from which

the inference could be drawn that a substantial risk of serious harm exists, and he must

also draw the inference.”59 “This issue is a question of fact.”60 “Finally, even if a prison

official was subjectively aware of the risk, he may be found free from liability if he

responded reasonably to the risk, even if the harm ultimately was not averted.”61

“The deliberate indifference standard is ‘an extremely high standard to meet.’”62

The Fifth Circuit has “declined to find deliberate indifference where an official ‘should

have inferred a risk posed to an inmate, requiring proof that the official, ‘did draw such

an inference. 63 Nevertheless, an inmate does not have to produce direct evidence of an

official’s knowledge about the risk; he may rely on circumstantial evidence to demonstrate

such knowledge.” 64

Defendants argue the Plaintiff has not alleged a violation of a constitutional right

because, as interpreted by the Defendants, “the plaintiff is alleging that giving tools to

inmates that could be used as weapons was a practice that created a dangerous

condition.” 6s In addition, according to Defendants, the incident at issue was an

unpreventable, isolated incident and therefore, Plaintiff’s Eighth Amendment right to

protection from inmate-ori-inmate attacks was not violated.66 In response, Plaintiff states

58 Id. (citing Farmer, 511 U.S. at 837).

59 Id. (internal citations and quotations omitted).

60 Id. (quoting Farmer, 511 U.S. at 837).

61 Id. (quoting Farmer, 511 U.S. at 844).

62 Id. (quoting Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752,756 (5th Git. 2001)).

63 Id. (emphasis in original) (citations omitted).

64 Id. (citations omitted).

65 R. Doc. 51-2 at 10.

66 Id.

Case 2:15-cv-00607-SM-MBN Document 73 Filed 09/25/17 Page 11 of 15

VV1.

that he is not claiming that issuing tools to inmates for work is unconstitutional.6?

Instead, Plaintiff argues that issuing tools that can be used as weapons to inmates without

direct supervision is dangerous.68

In order to show a violation of his Eighth Amendment right, Plaintiff must first

demonstrate that he was incarcerated under conditions posing a substantial risk of

serious harm. 69 Whether a risk is substantial and the threatened harm is serious

represents an objective test[.]”7° As explained above, “Several courts . ....have noted that

the Eighth Amendment may be violated when prison officials permit inmate access to

objects that could be used as weapons, especially when this conduct is accompanied by a

lack of adequate supervision over the inmates.”7i In addition, similar to facts in Goka v.

Bobbitt, the risk to inmate safety from misuse of maintenance and other tools as weapons

is evident on the fact of the tool control policy[.]”72 Plaintiff attaches a copy of RCC’s Tool

Control Policy to his opposition to the Defendants’ motion for summary judgment. 73

RCC’s Tool Control Policy, which has the stated purpose of establishing “procedures that

will ensure adequate control of tools,” explicitly states that “[ojffenders may only use

certain tools, referred to as ‘Restricted Tools”, “because of their potential security risk,

within the fenced compound under direct supervision of staff.”74 RCC’s Tool Control

Policy further defines restricted tools as “implements that can be used to fabricate

weapons, or that can be used as weapons; or that can be used to facilitate an escape.”75

67 R. Doc. 59 at 14.

6« Id.

69 Anderson, 440 F. App x at 381 (5th Cir. 2011) (citing Farmer, 511 U.S. at 834)

7° Hinojosa v. Livingston, 807 F.3d 657, 665 (5th Cir. 2015) (citations omitted).

71 Iwanski, 1999 WL1188836, at *4 (collecting cases).

72 862. F.2d 646, 652 (7th Cir. 1988).

73 R. Doc. 59-3.

74 Id, at 1, 3 (emphasis added)

75 Id. at 3.

- t‘r

Case 2:15-cv-00607-SM-MBN Document 73 Filed 09/25/17 Page 12 of 15

Although the Tool Control Policy does not include a sling blade in its non-exhaustive list

of examples of restricted tools, the Court finds that it is clear the sling blade used in the

assault at issue is a paradigmatic example of a restricted tool pursuant to RCC’s own

policy.

As the sling blade at issue is clearly a restricted tool, RCC’s own policy mandates

that inmates only be allowed to use the tool when under direct supervision. Defendants

argue that offenders working on the Wind Yard “are monitored via video monitors by the

Unit Key Officer and Lieutenant using the camera outside of the buildings” and “a

Lieutenant and Unit Key Officer periodically make rounds on the yard to assess the status

of all of the offenders including those working inside the buildings and outside on the

yard. ?6 The Plaintiff argues it is clear there was no direct supervision in this instance.

First, Plaintiff points to the affidavit of Darryl Mizell, the Chief Investigator for RCC,in

which Mizell states there is no camera surveillance monitoring of the Wind recreational

yard and that the surveillance cameras in place are only intended to prevent any escape

and therefore are only directed at the perimeter fence. 77 ln addition, Defendants admit

that “After Sgt. Pierce issued the swing blade to offender Turner, he had no knowledge

that offender Bernard Turner left his assignment or violated the prison disciplinary rules

regarding the issued equipment.”78 Defendants also admit it is undisputed that “[w]hile

the swing blade was unattended on the yard, another offender picked it up and used it to

attack the plaintiff.”79

76 R. Doc. 51-1 at 11 8-9.

77 R. Doc. 59-14 at 1 8 (citing R. Doc. 51-4, at 1120-21).

78 R. Doc. 51-1 at 134.

79 Id. at 135.

Case 2:15-cv-00607-SM-MBN Document 73 Filed 09/25/17 Page 13 of 15

Had there been direct supervision, as required by RCC’s own Tool Control Policy,

there would not have been an opportunity for an inmate to leave the swing blade

unattended on the yard, leave the yard altogether, or for another inmate to pick up the

abandoned tool and attack the Plaintiff. Since it is an undisputed that this occurred; the

Court finds the prison did not follow its own policies with respect to the supervision of

restricted tools and, thus, the Plaintiff has satisfied his burden in demonstrating that he

was incarcerated under conditions posing a substantial risk of serious harm.

Second, in order to defeat Defendants’ motion for summary judgment on the basis

of qualified immunity, Plaintiff must demonstrate that a genuine issue of material fact

exists as to the second element of the failure to protect analysis - i.e. that the defendant

prison officials were deliberately indifferent to his need for protection.80 As explained

above, a prison official is “deliberately indifferent” to a risk when he “knows of and

disregards an excessive risk to inmate health or safety.”81 An officer’s awareness of the

risk is evaluated subjectively.82 The Court must address this issue at it pertains to each

individual defendant. Without allowing the Plaintiff to conduct discovery on this issue,

the Court finds that it is unable to rule on whether each individual Defendant is entitled

to immunity. 83 Greater detail explaining how inmates were ultimately left unsupervised

while in possession of restricted tools is needed for the Court to determine which, if any,

Defendants, are entitled to qualified immunity< To further elaborate on this point, it is

apparent to the Court that there are at least three possible, and mutually-exclusive,

explanations as to how and why this potential violation of the Plaintiffs Eighth

1° NeaJs v- Norwood, 59 F.3d 530,533 (5th Cir. 1995) (citations and internal quotation marks omitted)

81 Anderson, 440 F. App’x at 381.

82 Longoria, 473 F.3d at 592-93.

83 See, e.g. Lion Boulos, 834 F.2d at 508.

Case 2:15-cv-00607-SM-MBN Document 73 Filed 09/25/17 Page 14 of 15

.4°

Amendment rights occurred: (l) the RCC Tool Control Policy drafted by Warden Tanner

which requires direct supervision when inmates are issued restricted tools was never

actually implemented; (2) the RCC Tool Control Policy was implemented but the prison

officials responsible for actually effectuating the policy were never properly trained on

how to comply with the direct supervision requirements of the policy; and (3) the RCC

Tool Control Policy was implemented and, although the prison officials responsible were

properly trained on how to effectuate the policy, they failed to do so. Determining which

scenario led to the incident at issue in Plaintiffs complaint is a question of fact that can

be resolved only with additional information gained through discovery. 84 The Court finds

this information is essential to its determination of whether any of the Defendants is

entitled to qualified immunity. 8s It is uncontested that on August 27, 2014, Defendant

Pierce issued a swing blade to another inmate, Bernard Turner, to cut grass in the Wind

Yard.86 It is also uncontested that the Plaintiff was hit from behind with the sling blade

causing severe lacerations.87 While these facts are not in dispute, due to the lack of

relevant information, information that only the Defendants have access to, the Court is

unable to identify which individuals engaged in the specific conduct leading to the lack of

direct supervision of inmates with access to restricted tools.88 The Court is not able to

ascertain whether, for example, Defendant Pierce neglected to follow proper procedure

or whether another guard, who was assigned to the Wind Yard providing the necessary

direct supervision, was not in his or her assigned location. Accordingly, the Court finds

limited discovery regarding the roles of each of the Defendants, the policies actually in

85°yer V' ^ °fMes(luite’ Texas> 2017 WL118811, at *10 (N.D. Tex. Jan. 12, 2017).

86 R. Doc. 51-1 at 130; R. Doc. 59-14 at H 30.

87 R. Doc. 51-1 at 136; R. Doc. 59-14 at 136.

88 See, e.g., Dyer, 2017 WL 118811, at *10.

Case 2:15-cv-00607-SM-MBN Document 73 Filed 09/25/17 Page 15 of 15

place at the time of the incident regarding the issuance of restricted tools, the training

provided, and other relevant information related to the Defendants’ subjective knowledge

of the risk is necessary to rule on the Defendants’ invocations of qualified immunity.

CONCLUSION

For the foregoing reasons;

IT IS ORDERED that the parties shall meet or confer before Monday, October

9? 2017 to discuss the scope, method, and timing of the limited discovery necessary to

address the Defendants invocation of qualified immunity. If the parties reach agreement,

they shall file a joint motion with a proposed order on or before Tuesday, October 10,

2017. If the parties do not timely file a joint motion with an agreed upon proposed order,

the Court shall hold a status conference on Friday, October 13, 2017 at 3:00 p.m at

which time the Court will determine the scope, method, and timing of the limited

discovery.

IT IS FURTHER ORDERED that the Defendants’ Motion for Summary

Judgment on the Basis on Qualified Immunity 89 is DENIED WITHOUT

PREJUDICE, and may be refiled after the completion of the limited discovery ordered

above.

New Orleans, Louisiana, this 25th day of September, 2017.

SUSIE MOR

UNITED STATES DISTRICT JUDGE

*9 R. Doc. 51.

txUi VA - £

Additional material

from this filing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.