Marzett v. Brown et al
Filing
53
ORDER granting in part and denying in part 42 Defendants' Motion for Summary Judgment. Signed by Judge Jay C. Zainey on 9/26/12. (jrc, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DELMON MARZETT
CIVIL ACTION
VERSUS
NO: 11-2264
R. BROWN, ET AL.
SECTION: "A" (3)
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment (Rec. Doc.
42) filed by defendants Marlin N. Gusman, Sheriff of New Orleans,
Major Brown, Lieutenant Dorsey, and Deputy James Fried.
Plaintiff Delmon Marzett opposes the motion.
The motion,
scheduled for submission on August 15, 2012, is before the Court
on the briefs without oral argument.
For the reasons that
follow, the motion is GRANTED IN PART AND DENIED IN PART.
I.
BACKGROUND
Plaintiff Delmon Marzett is a prisoner housed at the Orleans
Parish Prison (“OPP”), Conchetta and/or House of Detention.1
Marzett filed this lawsuit pro se seeking to recover under 42
U.S.C. § 1983 for alleged violations of his Fourth and Fourteenth
Amendment rights.
1
Marzett asserts two separate claims arising
Orleans Parish Prison includes several correctional
facilities, all under the ultimate control and authority of
Sheriff Marlin Gusman. Defendants’ motion for summary judgment
states that Marzett was housed in the House of Detention facility
but Marzett’s hand-written Statement of Claim states that he was
housed in the Conchetta facility when at least some of the events
giving rise to this lawsuit occurred.
out of his confinement at OPP.
First, Marzett complains that
while housed in Conchetta, he was deprived of his freedom to
practice his Muslim religion.
Second, Marzett complains that on
July 12, 2011, after returning from court, he and about two dozen
other inmates were as a group subjected to a strip search by an
allegedly gay male deputy.
Marzett seeks to recover $250,000.00
for mental/emotional pain and suffering for each of his claims.
(Rec. Doc. 1, at 6).
The specifics of each of these claims will
be discussed in greater detail later in this opinion.
Defendants now move for summary judgment arguing that 1)
Marzett’s right to freedom of religion was not violated because
he has not been barred from practicing his religion and because
deference is owed to prison officials to determine a prisoner’s
ability to observe religious practices, 2) the strip search was
not unconstitutional because of the compelling interest in prison
security, 3) Marzett cannot recover for solely emotional injury
absent physical injury, and 4) Sheriff Gusman cannot be liable
because Marzett does not allege that Gusman was personally
involved in the acts at issue and respondeat superior does not
provide a basis for liability.
This matter is scheduled to be tried to a jury on January
22, 2013.
II.
DISCUSSION
Summary judgment is appropriate only if "the pleadings,
2
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any," when viewed in the light
most favorable to the non-movant, "show that there is no genuine
issue as to any material fact."
TIG Ins. Co. v. Sedgwick James,
276 F.3d 754, 759 (5th Cir. 2002) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50 (1986)).
A dispute about a
material fact is "genuine" if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.
Id. (citing Anderson, 477 U.S. at 248).
The court must draw all
justifiable inferences in favor of the non-moving party. Id.
(citing Anderson, 477 U.S. at 255).
Once the moving party has
initially shown "that there is an absence of evidence to support
the non-moving party's cause," Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986), the non-movant must come forward with "specific
facts" showing a genuine factual issue for trial.
Id. (citing
Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986)).
Conclusional allegations and
denials, speculation, improbable inferences, unsubstantiated
assertions, and legalistic argumentation do not adequately
substitute for specific facts showing a genuine issue for trial.
Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993)).
1)
Validity of the Religious Restrictions
The First Amendment provides that “Congress shall make no
law respecting an establishment of religion or prohibiting the
3
free exercise thereof.”
The First Amendment’s free exercise
clause applies to the states via the Fourteenth Amendment.
School Dist. of Abington v. Schempp, 374 U.S. 203, 215 (1963)
(citing Cantwell v. Conn., 310 U.S. 296, 303 (1940)).
Convicted prisoners do not forfeit all constitutional
protections by reason of their conviction and confinement in
prison.
O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987).
Inmates retain their First Amendment right to the free exercise
of religion.2
McFaul v. Valenzuela, 684 F.3d 564, 571-
2
The complaint of a pro se prisoner is held to a less
stringent standard than formal pleadings drafted by lawyers.
Neal v. State of Ga., 469 F.2d 446, 448 (5th Cir. 1973) (quoting
Haines v. Kerner, 404 U.S. 519 (1972)). Therefore, the Court
must give Marzett’s complaint a liberal reading. The facts pled
in conjunction with Marzett’s claim for free exercise of religion
unarguably implicate the First Amendment. Marzett did not
expressly invoke the First Amendment in his complaint although he
has attempted during the course of this litigation to invoke
other constitutional amendments by name, e.g., the Fourth and
Fourteenth Amendments. Nonetheless, Marzett cannot be held to
the same standards of legal acumen that one would expect of an
attorney. It suffices for purposes of this action that Marzett
has pled the specific facts that demonstrate a potential
violation of his First Amendment rights, see Neal, 469 F.2d at
448-49, and Defendants’ briefing demonstrates that this is the
claim that they understood Marzett to have pled.
Marzett did not invoke the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc, et
seq., which might also be implicated under the facts. The RLUIPA
prohibits the government from imposing “a substantial burden on
the religious exercise of a person residing in or confined to an
institution . . . even if the burden results from a rule of
general applicability, 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.A. § 2000cc-1(a) (West 2003). The Act
applies to prisons, jails, and correctional facilities of a
4
72 (5th Cir. 2012) (quoting Hicks v. Garner, 69 F.3d 22, 25 (5th
Cir. 1995)).
The right is not absolute, however, as it is
subject to reasonable restrictions and limitations necessitated
by penological goals.
Id.
The limitations on the exercise of
constitutional rights arise both from the fact of incarceration
and from valid penological objectives, including deterrence of
crime, rehabilitation of prisoners, and institutional security.
O’Lone, 482 U.S. at 348 (citing Pell v. Procunier, 417 U.S. 817,
political subdivision of the state, 42 U.S.C.A. §
1997(1)(A),(B)(ii), so long as the facility receives federal
financial assistance, 42 U.S.C. § 2000cc-1(b)(1).
It is unclear whether a liberal reading of Marzett’s pro se
complaint would require the Court to assume that Marzett is
pursuing a statutory claim under the RLUIPA. See Greenup v.
Gusman, No. 09-6677, 2010 WL 1410676, at *1 n.1 (E.D. La. Mar.
26, 2010). But as a practical matter, a claim under the Act
would not provide any greater relief to Marzett than his § 1983
claim.
The Act may or may not include actors in their personal
capacities, see 42 U.S.C. § 2000cc-2(a); § 2000cc-5(4)(A)(iii);
Smith v. Allen, 205 F.3d 1255, 1272-73 (5th Cir. 2007), abrogated
on other grounds by Sossamon v. Texas, 131 S. Ct. 1651 (2011);
Mayfield v. Tex. Dep’t of Crim. Justice, 529 F.3d 599, 606 n.8
(5th Cir. 2008), and it does not relieve the prisoner of any of
the damages recovery restrictions imposed by the Prison
Litigation Reform Act, 42 U.S.C. § 1997e. See 42 U.S.C. § 2000cc2(e); Mayfield, 529 F.3d at 605-06. If the Act even applies in
this case, perhaps its most significant impact would be on the
apportioning of the burdens of persuasion, see id. § 2000cc-2(b)
(“If a plaintiff produces prima facie evidence to support a claim
alleging a violation of the Free Exercise Clause . . ., the
government shall bear the burden of persuasion on whether the law
(including a regulation) or government practice that is
challenged by the claim substantially burdens the plaintiff’s
exercise of religion.”). RLUIPA imposes a higher burden than
does the First Amendment in that the statute requires prisoner
officials to put forth a stronger justification for regulations
that impinge on the religious practices of prison inmates.
Mayfield, 529 F.3d at 612.
5
822-23 (1974); Procunier v. Martinez, 416 U.S. 396, 412 (1974)).
A restriction “impinging on an inmate’s constitutional
rights must be upheld ‘if it is reasonably related to legitimate
penological interests.’”
McFaul, 684 F.3d at 571-72 (quoting
Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1515
(2012)).
This approach ensures the ability of corrections
officials “to anticipate security problems and to adopt
innovative solutions to the intractable problems of prison
administration,” and avoids unnecessary intrusion of the
judiciary into problems particularly ill-suited to “resolution by
decree.”
O’Lone, 482 U.S. at 349-50 (quoting Turner v. Safley,
482 U.S. 78, 89 (1987); Martinez, 416 U.S. at 405).
To evaluate the reasonableness of a prison restriction that
affects the free exercise of religion, the court considers 1)
whether the regulation or action has a logical connection to the
legitimate governmental interests invoked to justify it; 2)
whether the inmate has an available alternative means of
exercising the rights; 3) the impact of accommodation on other
inmates, guards, and prison resources; and 4) the presence or
absence of ready alternatives that fully accommodate the
prisoner’s “rights at de minimis cost to valid penological
interests.”
78).
McFaul, 684 F.3d at 572 (quoting Turner, 482 U.S. at
To determine whether there is an alternative way for the
prisoner to exercise his right to practice his religion, courts
6
consider “whether the regulation entirely stifles the prisoner’s
religious expression.”
Id. (quoting Scott v. Miss. Dep’t of
Corr., 961 F.2d 77, 81 (5th Cir. 1992)).
In assessing whether the restriction is reasonable, the
court must determine whether the government objective underlying
the restriction at issue is legitimate and neutral, and that the
restriction is rationally related to that objective.
McFaul, 684
F.3d at 572 (quoting Freeman v. TDCJ, 369 F.3d 854, 860 (5th Cir.
2004)).
The court must be mindful that prison administrators and
not judges are tasked with making the difficult judgments
concerning institutional operations.
U.S. at 89).
Id. (quoting Turner, 482
Therefore, due deference must be given to the
decisions of prison officials “who are actually charged with and
trained in the running of the particular institution under
examination.
O’Lone, 482 U.S. at 349 (quoting Bell v. Wolfish,
441 U.S. 520, 562 (1979); McFaul, 684 F.3d at 572 (quoting
Turner, 482 U.S. at 89).
Turning now to the instant case, Defendants contend that
summary judgment is appropriate because Marzett does not claim
that he is completely disallowed from practicing his religion.
Rather, according to Defendants, he merely asserts that his
observance of certain religious practices has been restricted due
to his incarceration.
Defendants argue that Supreme Court
jurisprudence mandates deference to prison officials when
7
restricting inmates’ religious practices due to security and
safety concerns.
(Rec. Doc. 42-1, at 11).
Defendants are reading Marzett’s complaint far too narrowly
and their motion for summary judgment paints with far too broad a
brush.
Marzett claims that OPP does not allow the Muslim
population to congregate for the Friday Jumu’ah service that
Muslims traditionally observe, that no imam3 is available for him
(and that two specific imams were put on a terrorist list), that
no Islamic material is available to him although the Christians,
Jehovah’s witnesses, and Catholics have bibles and other
religious materials given to them for free while Muslims must buy
their own Qur’an.
Marzett contends that after bringing various
grievances about this, he finally purchased his own Islamic
materials and books but when they arrived prison officials
refused to release them to him.
Marzett claims that he was
denied the materials because of 9-11 and terrorism and because
the books were considered hate material by prison officials.4
3
An imam is a leader in the Muslim community who will often
lead Islamic worship services at a Mosque and provide religious
guidance to Muslims.
4
One of the Islamic materials mentioned in the complaint is
the Final Call newspaper. (Rec. Doc. 1, at 7). This particular
publication was the subject of litigation in the Western District
of Louisiana, and on appeal the Fifth Circuit upheld the district
court’s decision that the prison violated the inmate’s rights by
banning the paper in its entirety. Leonard v. State of
Louisiana, Dep’t of Pub. Saf. & Corr., 449 Fed. Appx. 386 (5th
Cir. 2011) (unpublished).
In his declaration Marzett states that it was defendant
8
Marzett complains that the prison chaplain and the commissary
carry no Islamic materials.
As the Court construes Marzett’s complaint and opposition,
he is claiming that prison officials at OPP are completely
stifling the observance of his Islamic faith, not merely
restricting some of his practices.
(Rec. Doc. 52, at 12).
Moreover, he claims that this is being done in a discriminatory
or “non-neutral” manner which impugns all Muslims based on the 911 terror attacks.
Whether Marzett’s claims are true or false or
misleadingly overblown the Court cannot say because Defendants
offered no affidavits or any evidence whatsoever in support of
their motion for summary judgment.
Instead, they state in
conclusory fashion that Marzett “was not prohibited from
practicing his religion” while incarcerated at OPP.”
42-2, ¶ 2).
(Rec. Doc.
This statement, which is listed as an uncontested
material fact, is by no means “uncontested” on the current
record.
Defendants’ sole defense to the claims at issue and their
sole support for their motion for summary judgment is their
contention that as prison officials they are owed significant
deference in the running of the prison.
Defendants are of course
correct because the Supreme Court jurisprudence regarding
Major Brown, one of the OPP wardens, who denied Marzett access to
Islamic materials after calling them 9-11 hate material. (Rec.
Doc.52-1, at 1).
9
prisoners’ rights emphasizes the role of prison administrators.
E.g., O’Lone, 482 U.S. at 342.
And Marzett, who has demonstrated
via his filings a significant understanding of the legal issues
involved in his case, surely understands that the constitution
does not require OPP to allow him the freedom necessary to
observe every aspect of his Muslim faith.
See id.
In other
words, at the end of the day it may very well be that OPP has
done nothing wrong.
But the Court has no basis in the record
upon which to evaluate whether the complained of restrictions are
reasonably related to legitimate penological interests, whether
the restrictions are reasonable, how the Turner factors balance
out, whether they are applied neutrally, and whether Marzett
retains an alternative means to observe his Muslim faith.
In
fact, the Court is not even sure of what OPP’s “restrictions” are
in this area.
Marzett’s side of the story is that he has no alternative
means to observe his faith and that the basis for any
restrictions is discrimination against Muslims by certain prison
officials who believe that all materials related to the Muslim
faith are 9-11 hate material.
As the record stands now,
Marzett’s contentions remain uncontradicted by any evidence in
the record so
Defendants cannot obtain summary judgment on
Marzett’s First Amendment claims by relying upon rote citations
to principles of deference to prison officials.
10
Defendants’
motion for summary judgment is therefore DENIED as to the free
exercise of religion claims.
2)
Validity of the Strip Search
For purposes of evaluating the validity of the strip search
that occurred in this case, the Court has the benefit of the very
recent Supreme Court decision of Florence v. Board of Chosen
Freeholders of the County of Burlington, 132 S. Ct. 1510 (2012).
In Florence, the Court upheld a jail’s policy of strip searching
new detainees who are held in the jail’s general population area
while their cases are being processed.
Id. at 1523.
In reaching
its decision the Court reiterated its long-held belief that
corrections officials are due deference when trying to deal with
the inherent difficulties of running a detention center including
keeping contraband out of the jail.
Id. at 1515-16.
There is no
mechanical way to determine whether intrusions into an inmate’s
privacy are reasonable.
520, 559 (1979)).
Id. (citing Bell v. Wolfish, 441 U.S.
The need for a particular search must be
balanced against the resulting invasion of personal rights.
Id.
The Court was persuaded that the jail in that case had struck a
reasonable balance between inmate privacy and the needs of the
institution.
Id. at 1523.
In this case Marzett complains that on July 12, 2011, after
returning from court, he and about two dozen other inmates were
as a group subjected to a strip search by an allegedly gay male
11
deputy.
Marzett contends that each prisoner was required to
manipulate his genitals in the presence of the guards and to bend
over and spread his buttocks for visual inspection.5
According
to Marzett, this search is distinguishable from those that have
been upheld in cases like Bell v. Wolfish because in this case a
group of inmates was subjected to the search in a very cramped
holding cell for the pleasure of two allegedly homosexual or bisexual male deputies.
Marzett argues that a strip search was not
necessary because metal detectors or other methods of detection
could have been used.6
Although the facts surrounding the strip search are sparse,
the Court concludes as a matter of law that Marzett cannot
establish that the search was unreasonable.
Even though there is
no basis for individualized suspicion or probable cause, the law
does not necessarily require that.
Marzett was not pulled out of
his cell and strip searched for the entertainment of the guards
5
Marzett’s pleadings present a more graphic description of
the search that the Court need not recite the details here. The
details of the search that Marzett describes are similar to the
strip search that was upheld in Bell v. Wolfish, 441 U.S. at 55859.
6
Marzett also complains that by conducting the strip search
the defendants violated jail policy. (Rec. Doc. 52, at 2).
Violations of the jail’s own internal policies are not
redressible by this Court unless they rise to the level of a
constitutional violation. Marzett also takes great pains to
convince the Court that he was transferred to other facilities
within OPP after he complained about the strip search. Marzett
characterizes these transfers as retaliatory in nature.
12
on duty.
Marzett was searched upon returning to the jail from a
trip outside of the facility where he could very well have
obtained contraband to bring back into the jail.7
In Florence
the Supreme Court discussed at length the methods that inmates
often use to conceal contraband in body cavities.
1520-22.
132 S. Ct. at
There is no suggestion that Marzett was not returned to
the jail’s general population where he then would have had
contact with other inmates.
Metal detectors are not necessarily
effective for detecting contraband such as cash and drugs and
therefore do not necessarily present a viable alternative.
To be sure, the law does not hold that strip searches in a
facility such as OPP are per se valid, presumed valid, or valid
when performed at the whim of prison officials.
But in light of
the deference due to prison officials who face the difficult task
of keeping contraband out of the facility, and in light of the
facts surrounding this particular strip search, the Court is
persuaded that Marzett does not state a claim for a
constitutional violation.
The motion for summary judgment is
therefore GRANTED as to the strip search claim.
3)
Recovery for Emotional Injury
Defendants move for dismissal of Marzett’s claims for
compensatory damages.
Defendants argue that Marzett has no
7
The Court recognizes that Marzett had left the jail to go
to court where one would hope that he was properly supervised so
that he could not obtain contraband but there are no guarantees.
13
alleged physical injuries and that he is therefore statutorily
precluded from recovering for solely emotional or mental
injuries.
The Prison Litigation Reform Act (“PLRA”) provides that
“”[n]o Federal civil action may be brought by a prisoner confined
in a jail, prison, or other correctional facility, for mental or
emotional injury suffered while in custody without a prior
showing of physical injury.”
42 U.S.C.A. § 1997e(e) (West 2003).
A prisoner can, however, pursue punitive or nominal damages based
on a violation of his constitutional rights.
Mayfield, 529 F.3d
at 606.
In this case Marzett has not alleged physical injuries of
any kind as a result of the incidents giving rise to this lawsuit
so he cannot recover the emotional injury damages that he seeks.
Nominal damages remain a possibility8 and Marzett makes an
ambiguous reference to punitive damages in his complaint.
compensatory damages are clearly precluded by the PLRA.
But
The
motion for summary judgment is therefore GRANTED as to the claim
for mental/emotional damages.
4)
Claims Against Sheriff Gusman
Sheriff Gusman argues that even under a broad reading of
Marzett’s complaint it is clear that Marzett is attempting to
8
The Court notes that in the Henry Leonard matter, nominal
damages in the amount of $1.00 per defendant were awarded. See
note 4, supra.
14
hold Sheriff Gusman liable solely because he is a supervisory
official.
Gusman points out that under the law he is not liable
for the constitutional torts of his employees and that the
complaint alleges no facts to suggest that he was personally
involved in any of the incidents at issue in this case.
In his opposition, Marzett explains how he believes Sheriff
Gusman was personally involved in the incidents at issue.
Marzett contends that Gusman is the one who put two imams on a
terrorist list and that he was aware that the strip searches were
illegal because OPP had recently settled a class action on this
issue.
(Rec. Doc. 52 at 4-5).
Defendant Sheriff Gusman is the elected Sheriff of Orleans
Parish with overall responsibility for the policies, procedures,
operations, and supervision of the Orleans Parish Prison.
Sheriff Gusman unarguably is the final policy maker for the
Orleans Parish Prison.
Clearly, if Marzett’s complaints are
ultimately determined to be constitutional violations, then if it
is determined that the individual guards pursued a course of
conduct pursuant to a policy promulgated by Gusman, then Sheriff
Gusman may potentially be liable notwithstanding that the
doctrine of respondeat superior has no application in § 1983
litigation.
At this stage, however, when it is not even clear to
the Court what particular policies, if any, of Sheriff Gusman are
involved in this case, summary judgment for Sheriff Gusman must
15
be DENIED.
Accordingly;
IT IS ORDERED that the Motion for Summary Judgment (Rec.
Doc. 42) filed by defendants Marlin N. Gusman, Sheriff of New
Orleans, Major Brown, Lieutenant Dorsey, and Deputy James Fried
is GRANTED IN PART AND DENIED IN PART as explained above.
September 26, 2012
_______________________________
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE
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