Lopez v. Sanders et al

Filing 95

ORDER denying 84 Motion to Dismiss. Signed by Judge D. P. Marshall Jr. on 8/31/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION

NICK LOPEZ, Individually and as
Administrator of the Estate of
Rigoberto Lopez-Alvarado

v.

PLAINTIFF

No. 2:10-cv-76-DPM

T.C. OUTLAW; JERRY CISSELL;
TRACY GUTHRIE; MARK TIPTON;
TIM MOORE; JUAN BALTAZAR;
JEREMY LLOYD; DARYL LLOYD;
LT. MARK SHELDON; LT. JOHN ELAM;
CAPT. DARYL MAUNE; PALMER
HERRINGTON; STERLING AKINS; DARRELL
ORDWAY; TONY A GEROR; and ALAN MINGO,
in their individual capacities

DEFENDANTS

ORDER
The Court earlier denied without prejudice the Defendants' motion for
summary judgment on Lopez's Eighth Amendment claims and opened a
three-month window for "basic discovery" on the deliberate-indifference
allegations. Document No. 75. About a month after this window closed, with
the Court's permission, Lopez filed an amended complaint that includes
detailed allegations about the events leading to Lopez-Alvarado's 2007

murder at FCI Forrest City.
The Defendants have again moved for dismissal or summary judgment,
arguing non-plausible claims/ qualified immunity. Document No. 84. The
motion and many attached exhibits are mostly directed at the facts of the
dispute, not the sufficiency of the allegations in Lopez's complaint. The Court
could consider summary judgment at this point. Country Club Estates, L.L.C.

v. Town of Lama Linda, 213 F.3d 1001, 1005 (8th Cir. 2000). But as Lopez points
out, the motion lacks an accompanying statement of material undisputed
facts. Local Rule 56.1(a). More importantly, Lopez contends that he cannot
respond on the facts without more discovery- including getting responses to
outstanding discovery requests. Document No. 92, at 2. The Court reluctantly
agrees that a decision on the merits would be premature.
The Court is mindful that qualified immunity should be decided as soon
in the case as possible. E.g., Shannon v. Koehler, 616 F.3d 855~ 864 n.5 (8th Cir.
2010). Prison officials have qualified immunity when a prisoner sues for
injuries caused by another prisoner's surprise attack. Tucker v. Evans~ 276 F .3d
999, 1001 (8th Cir. 2002). This holding, however, came on review of a complete
summary-judgment record. Prosser v. Ross, 70 F .3d 1005, 1006 (8th Cir. 1995).
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It is clearly established that "the [E]ighth [A]mendment require[s] prison

officials to protect prisoners from violence at the hands of other prisoners."

Young v. Selk, 508 F.3d 868, 875 (8th Cir. 2007) (quotation omitted). At this
point, the Court must take Lopez's allegations about ignored risks as true.

Irving v. Dormire, 519 F.3d 441,445-46 (8th Cir. 2008). In the face of the risks
Lopez alleges, all the conduct he describes would have violated his clearly
established right to be protected from prison violence. Defendants' request
for qualified immunity on the pleadings is therefore denied without prejudice.
To make a case for the fact finder on the alleged constitutional violation,
Lopez must substantiate the serious risks he alleges the Defendants knew
about. Fnrmer

'l'.

Brennan, 511 U.S. 825, 837 (1994). To do so he needs full

discovery. The Court will re-evaluate the immunity issue in this case on a
more complete record. E.g., Prosser, 70 F.3d at 1007. And it will be better able
to do so, and give detailed analysis, then. Jones v. McNeese, 675 F.3d 1158 (8th
Cir. 2012).
Construing the Defendants' motion as one to dismiss, the Court denies
it. Lopez-Alvarado was murdered by other inmates while in the custody of
the Bureau of Prisons.

The amended complaint alleges that deliberate

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indifference to at least eighteen enumerated risks contributed to the death.
Document No. 79, at 8-9. The allegations are plausible, though discovery may

not bear them out. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). If not, or if the
full record supports qualified immunity, then Defendants will prevail on
summary judgment.
The parties may begin full discovery on the Eighth Amendment claims.
The scheduling order is suspended. The Court will issue an amended final
scheduling order soon setting a new discovery cutoff, new pretrial deadlines,
and a new trial date-for this case and the companion case. Any future
motion for summary judgment must comply with the Local Rules. The new
trial date will stick. To keep the issues and the record clear, the Court would
appreciate future motions that seek dismissal or summary judgment, but not
both. The Court regrets its delay in ruling on this motion.

***
Motion to dismiss, Document No. 84, denied.
So Ordered.

D.P. Marshall Jr.V
United States District Judge

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