Petition for Writ of Certiorari — Brandon Scott Lavergne, Petitioner v. Darrell Vannoy, Warden

denied him “the minimal civilized measure of life’s

necessities” and exposed him “to a substantial risk of

serious harm.”'” The “alleged deprivation” must be

“objectively serious.”''® Second, the prisoner must

show “that the official possessed a subjectively

culpable state of mind in that he exhibited deliberate

indifference” to the risk of harm.!"' ‘Deliberate

indifference is an extremely high standard to meet.”

“A prison official displays deliberate indifference only

if he (1) knows that inmates face a substantial risk of

serious bodily harm and (2) disregards that risk by

failing to take reasonable measures to abate it.”'!? This

inquiry is “subject to demonstration in the usual ways,

including inference from circumstantial evidence.”'!*A

“factfinder may conclude that a prison official knew of

a substantial risk from the very fact that the risk was

obvious.”"!*

The Eighth Amendment “does not mandate

comfortable prisons, but neither does it permit

inhumane ones.”!!® At a minimum, prison officials

“must provide humane conditions of confinement” and

1097d. (quotation marks omitted).

110 Vd.

‘N7q. (citations and quotations marks omitted).

'27Id., quoting Domino, 239 F.3d at 756.

‘37d, (quotation marks omitted).

M4Gates v. Cook, 376 F.3d 323, 333 (Sth Cir. 2004).

115 Ti d.

6 Farmer, 511 U.S. at 832 (internal quotation marks and citations

omitted).

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“ensure that inmates receive adequate food, clothing,

shelter, and medical care.”''’ They cannot deprive

prisoners of the “basic elements of hygiene” or the

“minimal civilized measure of life’s necessities.”'"®

Prison conditions cannot inflict “wanton and

unnecessary” pain.!'?

Plaintiff’s first claim regarding conditions of his

confinement arise from punishments that were imposed

upon him resulting from the cell phone violation,

discussed above; attempted simple escape, which

occurred in October 2018; and having another inmate

place a call on his behalf.'”° According to Plaintiff, the

punishments imposed for his various rules infractions

worked in tandem to result in cruel and unusual

punishment because Plaintiff was left in solitary

confinement “with no possible contact to the outside

world.”’?! The punishments, which Plaintiff had to

endure simultaneously included loss of visitation and

Wg.

8Palmer v. Johnson, 193 F.3d 346, 352-53 (Sth Cir. 1999)

(quotation marks omitted).

"7d, at 351.

20R_ Doc. 1-1, p. 1. Plaintiff alleges that on October 15, 2018, he

attempted to escape LSP but was captured and placed in “CCR,”

R. Doe. 1-1, p. 1. While in CCR, Plaintiff asked another inmate,

Terry Smith, to make a phone call to Plaintiff’s “then girlfriend”

to let herself [sic] and [his] family know [he] was OK.” Jd. The

phone call was overhead, and disciplinary reports were issued

both Terry Smith and Plaintiff. As a result, Plaintiff was

sentenced to eight week loss of phone privileges. R. Doc. 1-1,

p.l.

IR. Doc. 101, p. 11.

93 of 156

phone privileges, loss of commissary privileges, and

solitary confinement.'”? As discussed above, visitation

is a privilege, which Plaintiff has no protected interest

in; similarly, use of a phone in prison is a privilege, and

the withdrawal of these privileges is not an atypical,

significant deprivation that might rise to the level of a

constitutional concern.’ Further, even considering that

Plaintiff was unable to contact the outside world for up

to five week, he does not describe an “extreme

deprivation.”'*4 For example, Plaintiff does not allege

that he lacked interaction with others in the facility

during this time period.'** Plaintiff also complains

122See Scott v. Moore, 114 F.3d 51, 53 n. 2 (Sth Cir. 1997) (citing

Collazo-Leon v. United States Bureau of Prisons, 51 F.3d 315

(ist Cir. 1995) (case involving disciplinary segregation and

denial of telephone and visitation privileges properly classified

as a conditions of confinement case).

'23See Magee v. Crowe, 2010 WL 1751575 at *9 (E.D. La. April

1, 2010) (punishment consisting of loss of commissary and

telephone privileges does not rise to the level of constitutional

violation). See also Smith v. Tanner, No. 18-3719, 2018 WL

62046417, at *10 (E.D. La. No. 5, 2018) (collecting cases noting

prisoners have no right to unlimited telephone use. Instead a

prisoner’s right to telephone access is subject to rational

limitations in the face of legitimate security interests of the penal

institution. Holding that withdrawal of privileges such as

canteen, telephone, outdoor recreation, and mattress restrictions,

without any atypical, significant deprivation does not result in

a violation of due process or other constitutional rights).

124See Price v. Johnson, No. 20-72, 2020 WL 1312400, at *10

(W.D. La. 2020).

'25See id. (finding that the alleged deprivation of social interaction

was not sufficiently extreme to state a claim).

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generally, that, when his disciplinary sentences expired,

he still did not have 24 hour per day access to emails

and phone calls; he also fails to state a claim in this

regard. Inmates are not entitled to unlimited telephone

use.!”° Similarly, inmates have no constitutional right

to email access.'?’ Thus, Plaintiff has not stated a claim

as a result of his limits in communicating using these

forms of communication. Accordingly, Plaintiff has

failed to state a conditions of confinement claim

regarding the lack of interaction with persons outside

LSP he experienced as a result of disciplinary charges

and has failed to state a claim regarding the general

26See Lopez v. Reyes, 692 F.2d 15, 17 (Sth Cir. 1982). See also

Smith, 2018 WL 6204617 at *10 (collecting cases noting

prisoners have no right to unlimited telephone use).

27See e.g., Bristow v. Amber, No. 12-412, 2012 WL 1963577, at

*2-3 (S.D. Ohio May 31, 2012) (prisoners do not have a First

Amendment right to access email); Grayson v. Federal Bureau

of Prisons, No. 11-2, 2012 WL 380426, at *3 (N.D. W. Va. Feb.

6, 2012) (“[P]risoners have no First Amendment constitutional

right to access email.”); Rueb v. Zavaras, No. 09-2817, 2011

WL 839320, at *6 (D. Colo. Mar 7, 2011) (“[I]nmates have no

established First Amendment right to access email.”); Holloway

v. Magness, No. 07-88, 2011 WL 204891, at *7 (E.D. Ark. Jan.

21, 2011) (“[A]ssuming that the free speech clause of the First

Amendment requires prisons to permit communication between

prisoners and persons outside the prison, it does not follow that

the First Amendment requires that the government provide

telephones, video conferencing, email, or any of the other

marvelous forms of technology that allow instantaneous

communication across geographical distances; the First

Amendment is a limit on the exercise of governmental power,

not a source of positive obligation on the part of the

government.”’),

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limitations placed on his communications with the

outside world.'** Plaintiff also cannot state a claim

regarding restrictions to his commissary privileges, as

these are privileges, not rights, and such restrictions do

not deprive Plaintiff of any basic measure of life’s

necessities.!”? Plaintiff also cannot state a claim for

confinement of a solitary nature, as more fully

explained below.

Plaintiff generally claims that he is the “only

prisoner in the entire state of Louisiana not sentenced

to death, who has been ordered to live at death row,”!”°

and Plaintiff complains that he does not have air

conditioning.'?! Other conditions complained of by

Plaintiff include the following: (1) he is housed in a

single-man cell 23 hours per day; (2) he is given

recreation three times per week for one hour per day;

28To the extent Plaintiff intended to make a claim regarding lack

of communication with the outside world under the First

Amendment, the claim still fails. Though prisoners have First

Amendment right to communicate with the outside world (see

Thornburgh y, Abbott, 490 U.S. 401, 411-12 (1989)), this nght

is not unlimited. As discussed in connection with Plaintiff's

claims regarding phone and email privileges, prisoners must

only be provided with the means of communications. Here,

Plaintiff was able to communicate via mail, and the fact that

some of his mail was delayed does not rise to the level of a

constitutional violation for the reasons explained above.

'29See Gardner v. Thompkins, 464 F.2d 1031, 1031-32 (Sth Cir.

1972) (denial of canteen privileges not a claim of constitutional

proportions).

BR. Doc. 1-1, p. 23.

BIR. Doc. 1-1, p. 24.

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(3) Plaintiff is only allowed two visits per month, which

visits must be pre-approved; (4) Plaintiff is placed in

restraints when transported anywhere within the prison;

(5) Plaintiff is not allowed to attend church services,!*?

and (6) Plaintiff is not allowed to use emails like the

other prisoners and is only allowed phone calls when

he is out of his cell.!°?

To the extent Plaintiff’s complaint regarding being

housed at death row is a complaint regarding the

solitary nature of his confinement, this Court has

previously considered and rejected this claim.!**

Accordingly, this claim should be dismissed as

'2This claim is discussed below in relation to Plaintiff’s claims

regarding infringement of his religious liberties.

3R. Doc. 1-1, p. 20-22. This claim was discussed above in

relation to Plaintiff’s other complaints regarding deprivation of

communication.

347 avergne v. Stutes, No. 17-1696 c/w 18-693, 2019 WL 4619963,

*2-3 (M.D. La. Sept. 10, 2019) (finding that Plaintiff’s

complaints regarding his confinement, which was determined

via plea agreement, are barred by Heck v. Humphrey, 512 U.S.

477 (1994)). Plaintiff does not allege that since this Court last

considered this claim the sentence has been reversed, expunged,

declared invalid, or called into question. Thus, because the

Court has already considered this exact claim, it is duplicative

and subject to dismissal. Plaintiff filed an amended complaint

on this issue (R. Doc. 10), but the facts alleged do not save

Plaintiff’s claim. Plaintiff’s amended complaint details new

rules regarding being held in solitary confinement, but as

described herein, Plaintiff’s sentence is unique as by virtue of

his original sentence he is to be held in solitary confinement.

Thus, these new rules do not have any impact on Plaintiff.

Further, Plaintiff clearly has not yet exhausted the claims in R.

Doc. 10, and they are subject to dismissal pursuant to 42 U.S.C.

§ 1997e. 97 of 156

duplicative.’ Further, Plaintiff does not have any right

to be housed in any particular section of the prison, so

to the extent his complaint is that his sentence is being

carried out in a particular section of the prison, namely

death row, Plaintiff also fails to state a claim.!*°

Plaintiff’s listed complaints regarding being housed

in a single-man cell 23 hours per day and recreation

'5Plaintiff filed two amended complaints (R. Docs. 9 & 14) that

relate to this claim. Plaintiff states in these amendments that

Vannoy stated “That isn’t enough time” with respect to

Plaintiffs time in solitary confinement, and that Vannoy has

admitted Plaintiff’s plea agreement calls for Plaintiff to be held

in solitary confinement and that with respect to this, Vannoy

opined that such a sentence is worse than being held in CCR.

Plaintiff alleges his plea agreement violates Louisiana statutory

law. These amendments are irrelevant as Plaintiff cannot state

a claim regarding the solitary nature of his confinement because

it is part of his original sentence, which has not been reversed,

expunged, declared invalid, or called into question.

36See Tucker v. Royce, Nos. 09-35, 09-106, & 10-04; 2011

WL541116, *6 (N.D. Ms. Feb. 8, 2011) (dismissing claim that

particular housing assignment constituted cruel and unusual

punishment and holding that “[p]risoner classification is a

matter squarely within the broad discretion of prison officials,

free from judicial intervention except in extreme

circumstances.” Jd. (internal quotation marks and citations

omitted)). To the extent Plaintiff complains that he was, at some

point in time, released from solitary confinement on death row

but then returned to that confinement as a result of disciplinary

sanctions, his claim still fails. Sanctions which may be imposed

as a result of disciplinary cases, including various terms of

commissary, recreation, and cell restriction, do not implicate

concerns that are protected by the Due Process Clause. Madison,

104 F.3d at 768 (“commissary and cell restrictions as

punishment are in fact merely changes in the conditions of his

confinement and do not implicate due process concerns.”).

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three times per week for one hour per day are part and

parcel of his plea agreement to be housed in solitary

confinement. Though his claim is also likely barred by

Heck due to its relationship to the plea agreement and

for the same reasons as previously stated by this

Court,!*’ the Fifth Circuit has found that one hour of

outdoor exercise three days per week is constitutionally

sufficient.'*? Thus, Plaintiff has failed to state a claim

of constitutional dimension with respect to his

complaints of being in a cell 23 hours per day and

enjoying three days of outdoor recreation per week for

one hour per day.

Moreover, an inmate has neither a protected property nor liberty

interest in his custodial classification. Moody v. Baker, 857 F.2d

256, 257-58 (Sth Cir. 1988) (internal citations omitted).

Plaintiff’s placement on death row is nothing more than an issue

of custodial classification because Plaintiff was sentenced to life

in solitary confinement. The Due Process clause is only

implicated “when state action exceeds the sentence in such an

unexpected way as to give rise to protection by the Due Process

Clause.” Stevens v. Cain, No. 14-204, 2017 WL 2389978, at *6

(M.D. La. May 23, 2017) (emphasis added). Plaintiff's

placement in solitary confinement does not exceed the sentence;

rather, this is exactly the sentence that was imposed on Plaintiff

pursuant to his plea agreement. Plaintiff is warned that his

continued attempts to invalidate his plea agreement and

sentence through § 1983 claims may result in sanctions.

“7Lavergne v. Stutes, Civil Action No. 17-1696 c/w 18-693, 2019

WL 4619963, *2-3 (M.D. La. Sept. 10, 2019).

‘3See McBride v. Bremer, 990 F.2d 1253, *2 (Sth Cir. 1993)

(“providing one hour of outdoor exercise three days a week and

permit[ting] inmates to move to the dayroom or stay in the cell

for the majority of the day” is constitutionally sufficient).

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Plaintiff has also failed to state a claim regarding

the lack of air conditioning where he is housed.

Although exposure to extreme heat is actionable under

certain circumstances, Plaintiff’s allegations in this case

fall short of what is required to establish a constitutional

violation, as Plaintiff does not allege any facts to

indicate extreme heat is present where he is housed.

Even if Plaintiff had alleged extreme heat, his claims

would fail. For example, in Johnson v. Texas Board of

Criminal Justice,’ the United States Court of Appeal

for the Fifth Circuit upheld a dismissal, as frivolous, of

an inmate plaintiffs claims, finding that his allegations

regarding extreme heat were “not sufficient to state a

constitutional claim” because although he alleged that

temperatures were “sometimes uncomfortably hot, he

did not allege that he suffered from any heat-related

injuries despite being subjected to these conditions

numerous times.”'*> Similarly, it has been held that

44981 Fed. App’x. 319 (Sth Cir. 2008).

'4357d. at 321, See also, Woods v. Edwards, 51 F.3d 577, 581 (Sth

Cir. 1995) (upholding summary judgment in favor of the

defendants where the inmate plaintiff alleged that excessive heat

at Camp J at LSP aggravated his medical condition but where

he “failed to present medical evidence of any significance” to

support that assertion); Ventry v. Gusman, No. 11-2989, 2012

WL 1405862, *7 (E.D. La. March 29, 2012) (dismissing as

frivolous an inmate’s claim regarding uncomfortably hot

conditions of confinement where his allegations “[fell] short of

what is required to establish a constitutional violation” and

where his claim regarding the aggravation of his medical

condition was “speculative at best”); Clark v. Gusman, No. 11-

2673, 2012 WL 1825306, *6 (E.D. La. March 29, 2012) (same).

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purely conclusory allegations of excessive heat and

inadequate ventilation, without more, fail to implicate

a federal constitutional right.'*° In the instant matter,

Plaintiff only provides the conclusory allegation that he

does not have air conditioning; this is insufficient to

state a claim of constitutional dimension.

Next, Plaintiff complains that he is allowed only

two visits per month, and these visits must be preapproved. Since Plaintiff has no right to visitation at all,

as explained above, he cannot state a claim regarding

limitations on visitation.'*” This claim lacks merit.’

Similarly, Plaintiff cannot state a claim regarding

'46See Johnson y. Thaler. CA No. 99-20222, 1999 WL 1131941,

*1 (Sth Cir. Nov. 12, 1999) (concluding that the inmate

plaintiffs’ conclusory “allegations of inadequate ventilation and

excessive heat do not entitle them to relief under 42 U.S.C. §

1983”); Parker v. Smith, No. 93-5542, 1994 WL 198944, *2 (Sth

Cir. May 6, 1994) (upholding the frivolous dismissal of a

plaintiff’s claim that “the ventilation system in the Smith County

jail [was] inadequate”).

147See Overton v. Bazzetta, 539 U. S. 126 (2003) (Prison regulation

that subjected inmates with two substance-abuse violations to

ban of at least two years on visitation with those outside the

prison not cruel and unusual punishment); Martin v. Scott, 156

F.3d 578, 579 (Sth Cir. 1998) (finding no claim where a prisoner

claimed that officials limited his visitation time); Lair v. Purdy,

188 Fed. App’x. 250 (Sth Cir. 2006) (inmate’s claims that he

was subjected to harsher visitation restrictions than other

inmates in violation of his rights under the First Amendment

was frivolous and failed to state a claim upon which relief may

be granted).

“48See, Price, 2020 WL 1312400 (dismissing as frivolous

Plaintiff’s complaint based on allegations that he could only

visit on the first and third Sunday of the month behind a glass).

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the fact that he is placed in restraints when he is

transported about the prison. “[U]se of restraints of

prisoners in matters of security [has been] found to fall

within the discretion of prison officials.”'*” Moreover,

“the jurisprudence is uniform that reasonable steps

taken to enforce security needs in a prison do not

violate a prisoner’s constitutional rights.”'°° The use of

restraints alone does not violate the constitution, and

Plaintiff has not alleged any aggravating factors so as

to state a claim of constitutional dimension.!*! Thus,

Plaintiff fails to state a claim in this regard.

Generally, only more extreme deprivations rise to

the level of a constitutional deprivation.!°? Even

considering the conditions complained of by Plaintiff

Burnett v. Phelps, 621 F.Supp. 1157, 1161 (M.D. La. Nov. 18,

1985) (citing Fulford v. King, 692 F.2d 11, 13 (Sth Cir. 1982).

0d, (citing Olgin v. Darnell, 664 F.2d 107 (Sth Cir. 1981);

McFadden v. Lucas, 713 F.2d 143 (Sth Cir.), cert denied 464

U.S. 998 (1983)).

\See, e.g., McLaughlin v. Tanner, No. 13-6563, 2014 WL

2807312, *2 (E.D. La. June 3, 2014) (requirement that extended

lock down inmates be fully restrained during exercise

constitutional); Tucker v. Royce, Nos. 09-35, 09-106, 10-04;

2011 WL 541116, *6 (N.D. Miss. Feb. 8, 2011) (complaint that

certain restraints were used to move the plaintiff about the

prison dismissed).

'S28ee Novak, 453 F.2d at 665 (collecting cases) (Wright v.

McMann, 387 F.2d 519 (2d Cir. 1967) (cell was encrusted with

excrement and the plaintiff was forced to sleep on the concrete

floor, naked, with the windows open throughout subfreezing

weather, with no soap, towels, or toilet paper) Hancock v. Avery,

301 F.Supp. 786 (M.D. Tenn. 1969) (hole for waste, flushed

irregulary by guard, no soap, luwel or uilel paper, prisuner slept

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together, they do not rise to the level of a constitutional

violation.!*

H. Disallowing Attendance at Any Religious

Services States a Claim, But Plaintiff’s Other

Claims Regarding Religion and Education

Should Be Dismissed

Plaintiff asserts that until August 2018, he was

attending the prison Baptist seminary, but as

punishment for August 2018 cell phone incident, he

was removed from the school.'** Similarly, he

complains that after his removal from the school, he

naked on floor); Jordan v. Fitzharris, 257 F.Supp. 674 (N.D.

Cal. 1966) (cells not cleaned regularly, prisoner had no means

to clean himself, a hole for receiving bodily wastes with no

flushing mechanism)). In Novak, the Fifth Circuit noted that

cases that chaltenge conditions of confinement have a “common

thread,” namely, “the deprivation of basic elements of hygiene.”

See also Harper v. Showers, 174 F.3d 716, 720 (Sth Cir. 1999)

(“[Flilthy, unsanitary” cells can violate the Eighth

Amendment.”). Plaintiff has not alleged any facts to indicate he

is being deprived of the basic elements of hygiene or of any

other minimal civilized measure of life’s necessities.

'S3To the extent Plaintiff has attempted to bring an equal protection

claim on the bases of the conditions of his confinement as

compared to other prisoners, such a claim fails because, as

explained in n. 36, due to Plaintiff’s unique custodial

classification resulting from his unique plea agreement, Plaintiff

is not similarly situated to any of the other inmates he has

described, and as stated above, “[w]hen classification is a

necessary part of prison security, it does not amount to denial

of equal protection of the law.” Lopez, 692 F.2d at 17.

MR. Doc. 1-1, p. 18. Note, though Plaintiff has framed this as an

issue involving the First Amendment and the RLUIPA, it is a

due process claim, which is discussed above in connection with

Plaintiff’s complaints regarding disciplinary proceedings.

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was unable to obtain grades for certain classes to

continue his studies and obtain a “minster degree” by

mail.!*> It is well-settled that a prisoner has no

constitutional right to participate in an educational or

rehabilitative program.!°° Plaintiff had no right to attend

the educational program from which he was removed.

Similarly, to the extent Plaintiff had difficulty enrolling

in other classes, he does not have a constitutional right

to be enrolled in such classes.'*’ Thus, he cannot state

a claim based on his removal from the program.

However, with respect to Plaintiff’s allegation that

he is not allowed to attend any church services, he has

stated a claim.'** It is well-established that prisoners

must be accorded “reasonable opportunities” to

exercise their religious freedom guaranteed by the First

Amendment.!°? However, conflicts have arisen between

prisoners’ exercise of this right and genuine concerns

of day-to-day prison administration. “[W]hen a prison

regulation impinges on inmates’ constitutional rights,

the regulation is valid if it is reasonably related to

legitimate penological interests.”'° The factors

'S5R. Doe. 1-1, p. 19.

'S6See Moody v. Daggett, 429 U.S. 78, 88, n. 9 (1976).

‘S7Carroll y. LeBlanc, No. 17-426, 2020 WL 1428226, at *2 (W.D.

La. Jan. 27, 2020) (dismissing as frivolous a plaintiff's claim

that a correctional institution had no religion classes on the basis

that the state has not constitutional obligation to provide basic

educational or vocational training to prisoners).

'S8R. Doc. 1-1, pp. 18; 22.

9Cruz v. Beto, 405 U.S. 319 (1972).

160Turner v. Safley, 482 U.S. 78, 89 (1987).

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examined to determine the reasonableness of prison

regulations are as follows: (1) whether there is a

rational relationship between the regulation and the

legitimate government interest asserted; (2) whether the

inmates have alternative means to exercise the right;

(3) courts must consider the impact on guards, other

inmates, and the allocation of prison resources that

would result from accommodating the asserted right;

(4) whether ready alternatives exist which

accommodate the right and satisfy the governmental

interest.'°' Courts must balance the inmates’ right to

free exercise of religion with the interest of prison

officials charged with complex duties arising from

administration of the penal system. Prison officials are

afforded great deference in carrying out their complex

duties.'®

The Turner factors are not weighed equally.'!° The

first factor is controlling, and the other factors merely

help a court determine if the connection is logical.’

lelTd, at 89-91.

1620 ’Lone v. Shabazz, 482 U. S. 342, 349 (1987). In O’Lone, the

Supreme Court faced a situation in which policies adopted by

prison officials prevented Muslim prisoners from attending

Jum’ ah services, and the Court held that it would not substitute

its judgment on difficult and sensitive matters of institutional

administration for the judgment of those charged with the

formidable task of running a prison. /d. at 353.

18 Mayfield v. Texas Dep't of Criminal Justice, 529 F.3d 599, 607

(5th Cir. 2008).

164 Scott v. Mississippi Dept. of Corrections, 961 F.2d 77, 81 (Sth

Cir. 1982).

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The First Circuit has held that “[s]ignificant restrictions

on [attendance of religious services] must have some

relation to legitimate penological interests”'® Based

upon Plaintiff’s allegations, read in the light most

favorable to him, he has stated a claim with respect to

being prevented from attending any religious

services.’ Plaintiff alleges that others who are

confined to Death Row are allowed to attend weekly

religious services,'®’ so he has at least alleged facts to

suggest that there is no legitimate penological interest

for prohibiting Plaintiff’s attendance at these religious

services. Accordingly, Plaintiff’s claim regarding his

exclusion from religious services against Vannoy,

LaMartinaire, Delaney, Cruze, Oubre, Sharky, and

McDonald arising from the First Amendment and the

‘Rose v. Woods, 95 F.3d 53, *1 (Sth Cir. 1996) (citing Muhammad

vy. Lynaugh, 966 F.2d 901, 902 (Sth Cir. 1992).

‘66Plaintiff has stated this claim under the First Amendment and

under RLUIPA, as RLUIPA places a heavier burden than the

First Amendment on prison officials to justify a substantial

burden on an inmate’s religious exercise. See Stevens v. Cain,

No. 14-204, 2017 WL 2389978, at *4 (M.D. La. May 23, 2017)

(“RLUIPA imposes a higher burden than does the First

Amendment.”); Legate v. Stephens, No. 13-148, 2014 WL

3587981, at *17 (S.D. Tex. June 6, 2014) citing Patel v. U.S.

Bureau of Prisons, 515 F.3d 807, 813 (8th Cir. 2008) (“RLUIPA

imposes a more stringent standard than that of the First

Amendment.”). Though a separate analysis regarding RLUIPA

may be required in the future, it is unnecessary for screening

purposes.

‘OR, Doe. 1-1, p. 22.

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Religious Land Use and Institutionalized Persons Act!®

(“RLUIPA”) should survive.'©

However, to the extent Plaintiff has attempted to

allege RLUIPA claims against these Defendants in their

individual capacities, he cannot do so. RLUIPA does

not permit a claim against individual defendants in their

individual capacities.'” The statute expressly states that

RLUIPA’s scope is limited to a “program or activity

that receives Federal financial assistance.”!”! In this

case, the recipient of federal funds is the Louisiana

Department of Public Safety and Corrections, not any

individual defendant. Thus, because no individual

defendant receives federal financial assistance as that

term is used in the statute, Plaintiff cannot maintain a

‘68The RLUIPA states that “no government shall impose a

substantial burden on the religious exercise of a person residing

in or confined to an institution ... unless the government

demonstrates that imposition of the burden on that person—(1)

is in furtherance of a compelling governmental interest; and (2)

is the least restrictive means of furthering that compelling

governmental interest.” 42 U.S.C. § 2000cc-1(a). Though

Plaintiff states his claim is under RLUIPA only, the Court is

required to interpret pro se pleadings liberally, so the

undersigned interprets Plaintiff’s claim as both under the First

Amendment and RLUIPA.

1©See Young v. Erickson, 758 F.Supp. 777, 784-85 (E.D. Wis. Dec.

20, 2010) (on summary judgment, material issues of fact existed

precluding summary judgment on the plaintiff’s claim under

RLUIPA that he was not allowed to attend religious services,

despite fact that the plaintiff was in segregation for his own

safety).

See 42 U.S.C § 2000cc-1.

Md. § 2000ce (b)(1).

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RLUIPA claim against a defendant in his or her

individual capacity.'” Additionally, Plaintiff only seeks

injunctive relief with respect to these claims arising

under the First Amendment and RLUIPA.”

RECOMMENDATION

IT IS RECOMMENDED that all claims and

Defendants be dismissed with the exception of

Plaintiff’s claims for nominal and punitive damages

against Douglas McDonald in his individual capacity

for the alleged incident of excessive force occurring on

January 10, 2019 and Plaintiff’s claims for injunctive

relief under the First Amendment and RLUIPA for

denying Plaintiff attendance at church services against

Darrell Vanoy, Joseph LaMartinaire, Tim Delaney,

Jimmy Cruze, Chad Oubre, Ricky Sharky, and Douglas

McDonald.'%

'2See Stewart v. Beach, 701 F.3d 1322, 1333-34 (10th Cir. 2012).

1BR. Doc. 1-1, p. 19.

Though “[o]rdinarily a pro se litigant should be offered an

opportunity to amend his complaint before it is dismissed,”

leave to amend is not required if the plaintiff has already pleaded

her best case (Wiggins v. Louisiana State University—Health

Care Services Division, 710 Fed. Appx. 625, 627 (Sth Cir. 2017)

(internal quotation marks omitted)) or if leave to amend would

be futile. See Stem v. Gomez, 813 F.3d 205, 215-16 (Sth Cir.

2016), citing Marucci Sports, L.L.C. v. Nat’l Collegiate Athletic

Ass’n., 751 F.3d 368, 378 (Sth Cir. 2014), quoting Jones v.

Robinson Prop. Grp. L.P., 427 F.3d 987, 994 (Sth Cir. 2005).

Here, the facts do not indicate that any amendment with respect

to those claims recommended to be dismissed would result in a

nonfrivolous claim. Therefore, the Court should decline to

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IT IS FURTHER RECOMMENDED that

Plaintiff’s claims against Darrell Vannoy, Joseph

LaMartinaire, Tim Delaney, Jimmy Cruze, Chad

Oubre, Ricky Sharky, and Douglas McDomand in their

individual capacities arising under RLUIPA be

dismissed.

IT IS FURTHER RECOMMENDED that this

matter be referred to the magistrate judge for further

proceedings on Plaintiff’s remaining claims, i.e.,

Plaintiff’s claims regarding excessive force against

Douglas McDonald and regarding infringement upon

his First Amendment right to attend religious services

against the relevant Defendants in their individual and

official capacities and Plaintiff’s claim against these

Defendants for the same acts in their official capacities

arising under RLUIPA. An order regarding service will

be issued separately.!7

afford Plaintiff an opportunity to amend his complaint with

respect to any of the claims that are recommended to be

dismissed, as any amendment would be futile. Further, Plaintiff

has already taken the opportunity to amend his complaint

several times, and courts are not required to provide plaintiffs

with unending leave to attempt to state a claim. See, e.g.,

McDowell v. Our Lady of the Lake, No. 19-569, 2019 WL

4916165 at n. 32 (M.D. La. Sept. 19, 2019); Jackson v. United

States Postal Service, No. 19-568, 2019 WL 5587227, at n. 34

(M.D. La. Sept. 19, 2019); Joseph v. People Ready, No. 17-124,

2018 WL 5818346, *2 (M.D. La. Nov. 7, 2018).

Plaintiff formally requested service in his original complaint. R.

1-1, p. 25. The undersigned will issue orders regarding service

following a ruling on this Report, if appropriate.

109 of 156

ORDER

Considering the issuance of this Report and

Recommendation, Plaintiff’s Motion for Status

Conference’”* is DENIED.

Signed in Baton Rouge, Louisiana, on November

23, 2020.

/S/ Erin Wilder-Doomes

ERIN WILDER-DOOMES

UNITED STATES MAGISTRATE JUDGE

'76R. Doe. 11.

110 of 156

H

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

RENIL ESCOBARRIVERA

VERSUS

WARDEN DARRELL VANNOY, ET AL

CIVIL ACTION NO. 19-498

JUDGE BRIAN A. JACKSON

MAGISTRATE JUDGE ERIN WILDER-DOOMES

OPPOSITION TO PLAINTIFE’S MOTION

FOR SUMMARY JUDGMENT

MAY IT PLEASE THE COURT:

Defendants, Darrel Vannoy, Joseph LaMartiniere,

and Tim Delaney, respectfully submit this

memorandum of Opposition to Plaintiff’s Motion for

Summary Judgment moving this Honorable Court to

deny Plaintiff's Motion for Summary Judgment on the

ground that he has failed to put forth competent

summary judgment evidence that proves _ that

Defendants violated his constitutional rights for him

remaining in CCR. As such, this Honorable Court

should deny Plaintiff’s Motion.

I. STATEMENT OF THE CASE

Plaintiff, Renil Escobarrivera (DOC# 573215),

filed a motion seeking summary judgment in his favor

for his claim of a due process violation for being placed

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in CCR for—what Plaintiff deems to be—an extended

amount of time and him not being released. As shown

by their Motion for Summary Judgment,' Defendants

did not violate Plaintiff’s rights and did not have a role

in Plaintiff’s continued CCR confinement. Plaintiff

failed to and cannot put before this Court competent

summary judgment evidence that Defendants are the

reason why Plaintiff has remained in CCR custody and

as such should have his motion seeking a summary

judgment in this favor denied.

II. LAW

In order for Plaintiff to be successful in his Motion

for Summary Judgment, Plaintiff must put forth

competent summary judgment evidence to demonstrate

that there is no genuine disputed issue as to any

material fact and the moving party is entitled to

judgment as a matter of law.” Opposing responses must

set forth facts showing that there is a genuine issue for

trial.2 The opposing party must direct the Court’s

attention to specific evidence in the record that

demonstrates that the non-moving part can show a

reasonably jury that it is entitled toa verdict in its favor.’

As set out more fully below, the evidence that

Plaintiff provided is not competent summary judgment

evidence and does not support Plaintiff’s claims.

'R. Doc. 52.

*Fep. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

258 (1986).

Anderson, 477 U.S. at 248.

“Id. 112 of 156

Additionally, Plaintiff fails to provide the court with

legitimate arguments for a judgment to be rendered in

his favor. As such, Plaintiff’s Motion for Summary

Judgment must be denied.

IH. ARGUMENT

A. Defendants are Entitled to Qualified Immunity

As stated in their Motion for Summary Judgment,

Qualified immunity balances two important interests,

the need to hold public officials accountable when they

exercise power irresponsibly and the need to shield

officials from harassment, distraction and liability when

they perform their duties reasonably.” Government

officials, performing discretionary functions,

“generally are shielded from liability for civil damages

insofar as their conduct does not violate clearly

established statutory or constitutional rights of which

a reasonable person would have known.”® Qualified

immunity allows officials the freedom to exercise fair

judgment, protecting “all but the plainly incompetent

or those who knowingly violate the law.”’ Actions and

decisions made by officials that are merely inept,

erroneous, ineffective, or negligent do not amount to

deliberate indifference and do not divest officials of

qualified immunity.’

>Pearson v. Callahan, 129 S.Ct. 808, 815-816, citing Harlow v.

Fitzgerald, 102 S.Ct. 2727, 2738 (1982).

°Harlow v. Fitzgerald, 102 S. Ct. 2727, 2738 (1982).

™Malley v. Briggs, 106 S.Ct. 1092, 1096 (1986).

Alton v. Texas A & M University, 168 T.3d 196, 201 (Sth Cir. 1999).

113 of 156

The U. S. Supreme Court has repeatedly stressed

that the immunity issue must be resolved at the earliest

possible stage of the litigation since it entails not

merely a defense to liability, but is instead immunity

from suit and an entitlement not to stand trial or face

the other burdens of litigation.” The Courts have

traditionally used the two-step method in determining

whether a defendant is entitled to qualified immunity.

The sequencing of the analysis has been left to the

discretion of the District Court Judges to determine

which of the two prongs should be analyzed first.!°

The first step in the analysis is to consider whether,

taking the facts as alleged in the light most favorable

to the plaintiff, the defendant’s conduct violated the

plaintiff’s constitutional right.'' This is a “purely legal

question” to be determined by the Court.!* The court

uses currently applicable constitutional standards to

make this assessment.”? The plaintiff bears the burden

of pleading such a violation of clearly established law."

The second step the district court must determine is

whether the right allegedly violated was clearly

established at the time of the infraction.'° This inquiry

> Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

'0 Pearson v. Callahan, 1129 S.Ct. 808 at 818, 172 L.Ed.2d 565 (2009).

Nd,

2 Siegert v. Gilley, 111 S. Ct. 1789, 1793 (1991).

3 Saucier, 121 S.Ct. at 2156.

\4 See Mitchell v. Forsyth, 105 S.Ct. 2806, 2815 (1985).

3 Td.

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must be undertaken in light of the specific factual

context of the case, not as a broad, general proposition.

The relevant, dispositive inquiry in determining

whether a constitutional right was clearly established

in whether it would have been clear to a reasonable

state official that his conduct was unlawful in the

situation which he confronted.'®

The court must determine whether an alleged right

was established with sufficient particularity that a

reasonable official could anticipate his actions would

violate that right.!’ It is not enough that the law be

established as a general proposition (such as that the

Fourth Amendment prohibits “unreasonable” searches

and seizures or that the Eighth Amendment prohibits

“excessive” force). Rather, the right that the official is

alleged to have violated must have been “clearly

established” in a more particularized and more relevant

sense. The contours of the right must be sufficiently

clear that a reasonable official would understand that

what he is doing violates that right at the time.!* As the

Supreme Court held:

The relevant, dispositive inquiry in

determining whether a right is clearly

established is whether it would be clear

to a reasonable office that his conduct

16 Td,

'7 Anderson v. Creighton, 107 S. Ct. 3034, 3039 (1987).

'8 Saucier, 121 S. Ct. at 2156,

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was unlawful in the situation he

confronted.'°

If the law did not put the officer on notice that his

conduct in the situation he confronted would be clearly

unlawful, he is entitled the qualified immunity.”

Officials are not expected to determine the manner in

which the law’s gray areas might be clarified or

defined.?! Further, the Supreme Court has held that

qualified immunity protects “all but the plainly

incompetent or those who knowingly violate the law.””

Defendants sued in their individual capacities should

be granted qualified immunity unless their actions

“were patently incompetent or intentionally flouted the

law.”

i. Plaintiffs Constitutional Rights were not Violated.

The first step in the qualified immunity inquiry is

whether defendants violated Plaintiff’s constitutional

rights. The isolation inherent in extended lockdown is

only constitutionally objectionable when imposed

'9 Saucier, 121 S.Ct. at 2156 (emphasis added).

20 Saucier, 121 S.Ct. at 2156-57.

21 Davis v. Scherer, 104 S.Ct. at 3012, 3019-20 (1984).

2 Malley v. Briggs, 106 S.Ct. 1092, 1096 (1986).

23 Brady v. Fort Bend County, 58 F.3d 173, 173 (Sth Cir. 1995);

see also Shipp v. McMahon, 234 F.3d 907, 915 (Sth Cir. 2000)

(noting that “courts have narrowly adjudicated issues of

qualified immunity largely to the benefit of government

officials,” and qualified immunity protects “all but the plainly

incompetent or those who knowingly violate the law”).

116 of 156

without penological justification.”* Internal security

may be the most legitimate penological goal.?> The

Fourteenth Amendment’s Due Process Clause protects

persons against deprivations of life, liberty, or property;

and those who seek to invoke its procedural protection

must establish that one of these interests is at stake.?¢

The Supreme Court has previously held that segregated

confinement leads to a due process claim where the

confinement imposes atypical and significant hardship

on the inmate in relation to ordinary incidents of prison

life.?” Sandin, sets forth the test and determine whether

restrictive confinement constitutes “atypical and

significant hardship” in relation to the ordinary

incidents of prison life by considering the nature of the

more-restrictive confinement and its duration in

relation to prison norms and to the terms of the

individual’s sentence.”®

In regards to the penological justification, the sole

reason for Plaintiff’s placement in CCR is due to

Plaintiff’s escape attempt.?’ Plaintiff’s continued

placement in CCR is solely due to him being an escape

24 Rhodes v. Chapman, 452 U.S. 337, 346 (1981).

5 Overton v. Bazzetta, 539 U.S. 126, 133 (2003).

26 Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162

L.Ed.2d 174 (2005).

27 Wilkerson v. Goodwin, 774 F.3d 845, 855-57 (Sth Cir. 2014).

28 Sandin v. Conner, 515 U.S. 472, 4884, 115 S.Ct. 2293, 132

L.Ed.2d 418 (1995).

2°R. Doc. 44-1 at page 4. Request for Admission No. 2 and R. Doc.

52-4 at {3 and 4.

117 of 156

risk.*° Prison officials are afforded wide-ranging

deference in maintaining institutional order and

control.*! This includes the classification of offenders’

custody status.** Plaintiff has received numerous

reviews of his custody status and cell placement and

has yet to be recommended for release. In assessing

whether an offender is to be released form CCR, some

criteria that is taken into account is offender age,

conduct history, and disciplinary record; amongst other

things. At the time, Plaintiff remains an escape risk by

the review board.

In looking to the atypical and significant hardship

criteria, it is best to look to the cases of Sandin and

Wilkinson. The Court in Sandin found that in the

circumstances of that case, segregated confinement did

not present a dramatic departure from the basic

conditions of Conner’s indeterminate sentence due to

the fact that inmates in the general population at the

prison experienced significant amounts of lockdown

time, that the degree of confinement in disciplinary

segregation was not excessive in either duration or

degree of restriction compared to other types of

restrictive confinement imposed on inmates, and that

the thirty-day disciplinary segregation did not work a

major disruption in the inmate’s environment.

2°R. Doc. 52-4 at J 22.

>| Bell v. Wolfish, 441 U.S. 520, 547 (1979).

3? Hernandez v. Velasquez, 522 F.3d 556, 562 (Sth Cir. 2008).

33 Id. at 485-87, 115 S.Ct. 2293.

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In comparison, the Court in Wilkinson determined

that a prisoner’s assignment to the Ohio Supermax

facility entailed highly restrictive conditions of

confinement, and did give rise to a liberty interest.**

The reasoning for this determination of “highly

restrictive conditions” rests on the fact that on the Ohio

Supermax institution inmates spent 23 hours a day in

single cells whose doors were solid metal that

prevented communication from one cell to another, the

prisoners took all their meals alone in their cells,

visitation opportunities were rare, and the placement at

the institution was indefinite with a _ parole

disqualification.*°

In this matter, Plaintiff’s confinement to CCR does

not deprive Plaintiff of ordinary prison life that is

atypical or poses a significant hardship. CCR cellblocks

are like the other cellblocks located at Louisiana State

Penitentiary in that they are comprised of cells that

have barred doors and are located on open tiers.*° When

an offender is in housed in CCR, the offender has the

ability to speak to other offenders on the tier, receives

two (2) hours per day on the tier unrestrained, and

unless restricted—an hour of yard time three (3) days

34 Wilkinson, 545 U.S. at 213, 224, 125 S.Ct. 2384.

35 Id. at 214, 223-24, 125 S.Ct. 2384.

3©R. Doc. 52-4 at J 9. See Sandin, 515 U.S. at 486, 115 S.Ct. at

2301 (The Court held that the Plaintiff’s segregated confinement

did not present atypical, significant deprivation which might

conccivably creat a liberty intcrest duc to the fact that the

119 of 156

a week.*’ Additionally, Plaintiff is allowed to participate

in some courses. Even if Plaintiff is released from CCR,

it does not necessarily mean that Plaintiff will be placed

in a dormitory setting and can just be placed in another

cell assignment, which is similar to his current

placement in CCR.*8

In looking towards the issue of duration, there has

yet to be an established period of confinement where

the confinement reaches the threshold of becoming a

constitutional violation. It is evident that Plaintiff has

not been in isolation as long as the individuals in the

Wilkerson,? Shoats, or Laue*! cases. The case

regarding duration most similar to Plaintiff is the Baker

case.

In Baker, the Plaintiff alleged that he was

improperly sentenced to disciplinary and administrative

segregation for an excessive period of time, therefore

depriving him of a liberty interest, and that the

procedures used to place and keep him in segregation

disciplinary segregation mirrored the conditions of those in

administrative segregation and protective custody.

IR. Doc. 52-4 at { 10.

38R. Doc. 52-4 at J 18.

3° Wilkerson, 774 F.3d 845 (Plaintiff in the case were confined to

solitary confinement for close to four decades).

“Shoats v. Horn, 213 F.3d 140, (3d Cir. 2000) (Plaintiff confined

in administrative segregation for eight years).

“Laue v. Johnson, 117 Fed.Appx. 365, (5th Cir. 2004) (Plaintiff

confined in administrative segregation for eight years).

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were deficient.” Plaintiff was an inmate at the Southern

Ohio Correctional Facility during riots where hostages

were taken and ten people were murdered. At the time

of the riots, Plaintiff was a maximum-security inmate

serving 15-25 years. Plaintiff was transferred to another

facility and placed in a restrictive administrative unit.

At the new facility, once an offender was cleared of

wrongdoing he would be placed in general population.

Plaintiff was determined to have murdered the

corrections officer that was killed and remained

segregated from the general population. Plaintiff was

confined in a segregated fashion for two and one-half

years.”

The court in Baker looked to Sandin and

determined that to make the liberty interest

determination, the Court would need to base it on

whether it will affect the overall duration of the

inmate’s sentence.“* The Court determined that there

was no evidence that the segregation would impact

plaintiff’s overall sentence. ** The court noted that the

two and one-half years period may have been atypical

in length, but the purpose was justified and determined

that there was no significant hardship due to the reason

® Jones v. Baker, 155 F.3d 810, 811 (6th Cir. 1998).

* Id. (The two and one-half years is the period prior to the

completion of the investigation and did not include the time after

the investigation of the riot concluded).

“4 Baker, 155 F.3d 812.

8 Td.

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