Magee v. Reed et al

Filing 88

ORDER AND REASONS: IT IS ORDERED that the 76 motion for summary judgment is GRANTED IN PART as set forth in document. Plaintiff's claims of inadequate medical care are DISMISSED WITH PREJUDICE.Signed by Judge Ivan L.R. Lemelle on 3/8/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROGER D. MAGEE

CIVIL ACTION

VERSUS

NO. 14-1986

WALTER P. REED, ET AL.

SECTION "B"(1)
ORDER AND REASONS

Before the Court is Defendants’ “Second Motion for Summary
Judgment.” Rec. Doc. 76. Plaintiff timely filed an opposition
memorandum. Rec. Doc. 77. Defendants then requested (Rec. Doc.
81), and this Court granted (Rec. Doc. 83), leave to file a reply
memorandum (Rec. Doc. 84). For the reasons discussed below,
IT IS ORDERED that the motion for summary judgment (Rec. Doc.
76) is GRANTED IN PART.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case arises out of the March 28, 2014 arrest of Roger D.

Magee (“Plaintiff”). From sometime in 2010 through April or May of
2012, Plaintiff provided information to the Federal Bureau of
Investigation

(“FBI”)

about

former

Defendant

Jerry

Wayne

Cox

(“Cox”), a Pentecostal Minister in Franklinton, Louisiana, Cox’s
relationship with former Defendant Walter P. Reed (“Reed”), the
former Washington Parish District Attorney for the 22nd Judicial
District, and property damage insurance claims purportedly made by
Cox

and

Reed.

Rec.

Doc.

23

at

¶¶

1(a),

4(a).

According

to

Plaintiff, Cox and Reed were involved in “the personal injury

‘business.’” Id. at ¶ 4(b). Cox would purportedly “refer clients
to Reed, while Reed, in turn, would bring in counsel . . . to file
pleadings, etc.” Id. The men then “shared in [the] settlement
proceeds.” Id. According to Plaintiff, his cooperation with the
FBI concerned Cox and Reed because it could have led the FBI to
various crimes, including the “underreporting of income and tax
fraud . . . .” Id. at ¶ 4(c).
At some point between August 4 and 6, 2012, Cox and Reed
attended a religious meeting in Arkansas, Plaintiff’s home state.
Id. at ¶ 5(a). While in Arkansas, Cox met with Plaintiff and “said
to Plaintiff something to the effect of, ‘You didn’t scare us . .
. much with the FBI; well, you scared us a little . . . but when
I found out that Reed was ex-FBI, Reed said that he took care of
it.’” Id. Cox further warned Plaintiff that, “[i]f and when you
cross state lines [into Louisiana], Reed will handle you!” Id.
About two and a half months later, on October 25, 2012, an
“Order for Body Attachment” was issued against Plaintiff for
failing to pay child support payments to his ex-wife. Id. at ¶
5(d). Even though the order was eventually recalled, Plaintiff
alleges that the action was initiated by Cox and Reed. Id. at ¶¶
5(e). To support this assertion, Plaintiff notes that his ex-wife
never contacted him requesting payment, the order was issued only
two months after Cox made his threats, and Defendant Randy Seal
(“Defendant

Seal”),

the

Sheriff
2

for

Washington

Parish,

in

partnership with Reed’s office, participated in a “‘roundup’ of
parents who were in arrears on their child support payments during
2013.” Id. at ¶¶ 5(e)-(f) (emphasis deleted).
Plaintiff

subsequently

sought

to

visit

his

family

in

Louisiana, so he contacted the Office of Child Support Enforcement
in Arkansas. Id. at ¶ 5(g). He was assured that he was protected
by the court’s recall order, but that he could take the recall
order with him to Louisiana as a precaution. Id.
On Friday, March 28, 2014, Plaintiff traveled to his aunt’s
home in Franklinton, Louisiana for a relatively large family
gathering. Id. at ¶ 6. Around 3:00 p.m., while Plaintiff was seated
on the porch, holding his sixteen-month-old grandson, five police
units converged on the premises. Id. at ¶¶ 6-7. The officers on
the scene included Defendants Corbet Hunt, Darren Spears, Michelle
Brumfield,

Mitchem

Nesmith,

and

Damen

Mitchell

(“Defendant

Officers”). Id. at ¶ 11. These officers, clothed in body armor and
many with their weapons drawn, approached the house. Id. at ¶ 7.
The lead officer “motioned with his finger to Plaintiff.” Id.
at ¶ 8. Plaintiff stood and “stated that, if this had to do with
child support payments, he was ‘in compliance’ with the State of
Arkansas and that he could show them court papers that relieved
Plaintiff

of

his

obligations

due

to

his

disabilities.”

Id.

Plaintiff then proceeded toward open double doors leading to the
dining room in order to retrieve the recall order. Id. at ¶ 9. In
3

response, Defendant Spears tased Plaintiff in the back; Plaintiff
“crashed head first onto the concrete floor.” Id. Three or four
officers “[came] down on his back” and Plaintiff’s left hand was
handcuffed.

Id.

There

is

some

dispute

about

whether

or

not

Plaintiff’s right hand was handcuffed before or after Defendant
Spears tased Plaintiff a second time. Id.; see also Rec. Doc. 77
at 4 (citing Rec. Doc. 77-4 at 23).1 At this point, however, it is
undisputed that Defendant Spears did not warn Plaintiff before
activating the taser for the second time. Rec. Doc. 23 at ¶ 9.
Eventually, Plaintiff stood and vomited. Id. at ¶ 12. Even
though his family requested an ambulance, informing the officers
that Plaintiff was diabetic, Plaintiff “was shoved into the rear
of a patrol car where Plaintiff drifted in and out of consciousness
as he was transported to the Washington Parish Jail in Franklinton,
Louisiana.” Id. at ¶¶ 12-13. Plaintiff was kept in a room in the
Washington Parish Jail for approximately half an hour before he
was booked. Id. at ¶ 14. During that time, one of the deputies
purportedly “bragged, ‘In case you ever want to come looking for
me, I’m the one who tased you, you son-of-a-bitch.’” Id.
As a result of this incident, Plaintiff alleges that he was
unconscious for some time, suffered a severe traumatic brain
injury, injuries to his left foot, left knee, and shoulder, and

Rec. Doc. 77-4 contains the deposition testimony of Defendant Spears. It will
be cited according to the record document page number, not the page number of
the deposition transcript.
1

4

subsequently

experienced

various

symptoms,

including

profound

headaches, disorientation, dizziness, and fatigue. Id. at ¶ 10. He
claims that Reed, aware of the recall order, informed Defendant
Seal that

the sheriff’s office

had probable cause to arrest

Plaintiff. Id. at ¶ 27(b). Further, Reed and Cox purportedly told
Defendant Seal that Plaintiff’s arrest should involve “a large
deployment of officers and showing of force” and “the use of force
against Plaintiff.” Id. at ¶ 27(c).
Once incarcerated in Washington Parish Jail, Plaintiff claims
that he was assigned to a block with black mold on the walls,
little ventilation, and where inmates were forced to sleep on the
floor. Id. at ¶ 17. Plaintiff alleges in his complaint that the
jail is intentionally overcrowded in order to increase the money,
based on the number of inmates, that is paid by the state to
Defendant Seal. Id. at ¶ 18.
Further,

despite

Plaintiff’s

head

injury

and

subsequent

complaints, Plaintiff maintains that he was not given a CT scan
for one and one-half months. Id. at ¶ 19. He was also purportedly
denied insulin for three to four days at a time and medication for
his

blood

pressure

for

approximately

a

week

at

a

time.

Id.

Consequently, Plaintiff submitted four written “Administrative
Remedy Procedure” (“ARP”) complaints. Id. at 21. He never received
a

written

response.

Id.

Accordingly,

Plaintiff

argues

that

Defendants Seal and Miller operate an understaffed facility that
5

fails to provide adequate medical treatment to inmates and has a
policy (“either explicit or de facto”) of ignoring ARP complaints.
Id. at ¶ 20.
Pursuant

to

a

plea

agreement,

Plaintiff

eventually

pled

guilty to violations of Louisiana Revised Statute §§ 14:75 (failure
to pay child support) and 14:108 (resisting an officer). Id. at ¶
23. He was placed on probation for five years and released from
jail on July 7, 2014 (101 days after his arrest). Id.
On May 1, 2015, Plaintiff filed an amended complaint, alleging
(1)

violations

of

his

civil

rights

under

42

U.S.C.

§

1983,

including (a) false arrest and excessive force in violation of the
Fourth and Fourteenth Amendments (id. at ¶¶ 25-31); (b) procedural
due process violations and false imprisonment in violation of the
Fourth, Fifth, and Fourteenth Amendments (id. at ¶¶ 32-37); (c)
free speech retaliation in violation of the First Amendment (id.
at ¶¶ 38-47); and (d) conditions of confinement that violated due
process (id. at ¶¶ 48-58); (2) municipal violations under § 1983
and Monell v. Department of Social Services of New York, 436 U.S.
658 (1978), including those related to (a) former Defendant Reed’s
policies in the DA’s office (id. at ¶¶ 59-63) and (b) Defendant
Seal’s policies in the Sheriff’s Office (id. at ¶¶ 64-68); and (3)
battery and excessive force in violation of Louisiana law (id. at
¶¶

69-73).

Plaintiff

prayed

for

a

declaratory

judgment,

an

injunction, compensatory damages, damages incurred as a result of
6

physical and mental injuries (an amount not less than $30,000,000),
punitive damages, attorneys’ fees, and other costs. Id. at 33-34.
On June 15, 2015, Reed filed a motion to dismiss for failure
to state a claim. Rec. Doc. 29. On August 19, 2015, this Court
granted the motion, dismissing all claims against Reed, because
(1)

Plaintiff’s

false

arrest

and

First

Amendment

retaliation

claims were barred by Heck v. Humphrey, 512 U.S. 477 (1994), (2)
Plaintiff’s excessive force claim failed to show that the actions
of the arresting officers were in some way caused by Reed and
Plaintiff failed to satisfy his burden of showing that Reed was
not entitled to qualified immunity, (3) Plaintiff’s due process
claim related to bond failed to show that Reed was “causally
connected”

to

Plaintiff’s

bail

problems,

and

(4)

Plaintiff’s

Monell claim failed to show that any of the supposedly improperlytrained district attorneys participated in the claims brought
against Plaintiff. Rec. Doc. 37. Plaintiff appealed the Order and
Reasons. Rec. Doc. 40.
On July 22, 2015, Defendant Officers and Defendants Mike
Haley, Miller, and Seal filed a motion for partial judgment on the
pleadings or for partial summary judgment. Rec. Doc. 34. On August
31, 2015, the same Defendants filed a motion for summary judgment.
Rec. Doc. 38. On October 19, 2015, this Court granted both motions.
Rec. Doc. 49. Specifically, we found that the claims for false
arrest, false imprisonment, and free speech retaliation previously
7

dismissed

against

Reed

must

also

be

dismissed

against

these

Defendants pursuant to Heck. Id. at 9-15. Similarly, Plaintiff’s
Monell claims for false arrest and false imprisonment were found
to be Heck-barred and were accordingly dismissed. Id. at 18-20.
Nonetheless, we found that Plaintiff’s excessive force claims,
including his Monell claims based on excessive force, were not
barred by Heck; therefore, the motion to dismiss/motion for summary
judgment

was

denied

to

the

extent

it

sought

to

dismiss

the

excessive force claims against these Defendants. Id. at 15-17, 20.
The

claims

for

battery

and

excessive

force

in

violation

of

Louisiana law were dismissed as duplicative with Plaintiff’s §
1983 excessive force claims. Id. at 17-18. Finally, Plaintiff’s
procedural due process claims for denial of bail were dismissed
because there was no evidence to suggest that Defendants were in
any way related to Plaintiff’s denial of bail. Id. at 20-24.
On September 14, 2015, Cox filed a motion for judgment on the
pleadings or, alternatively, a motion for summary judgment. Rec.
Doc. 39. On October 28, 2015, this Court granted the motion and
dismissed Plaintiff’s claims against Cox with prejudice. Rec. Doc.
54. Specifically, we found that Plaintiff’s claims for false arrest
and imprisonment and for free speech retaliation were barred by
Heck. Id. at 10-15. His claims for excessive force failed because
they did not show how Cox was “causally connected” to the claim.
Id. at 15-16. Finally, his claims for battery and excessive force
8

under Louisiana law were dismissed as duplicative. Id. at 16-17.
Plaintiff appealed the Order and Reasons. Rec. Doc. 56.
On December 9, 2015, we granted Plaintiff’s motion to stay
pending the outcome of his appeals (Rec. Docs. 40, 56). Rec. Doc.
58. On January 22, 2016, the Fifth Circuit found that it lacked
jurisdiction over the appeals, because we had not disposed of all
claims and parties before the appeals were filed. Rec. Doc. 59 at
2. On March 17, 2016, the stay was lifted. Rec. Doc. 63. After
trial was rescheduled for March 27, 2017, Defendant Officers and
Defendants Haley, Miller, and Seal, filed the instant motion for
summary judgment. Rec. Doc. 76.
II.

THE PARTIES’ CONTENTIONS

In their motion for summary judgment, Defendants contest (1)
the claims related to excessive force, encompassing Plaintiff’s
claims of severe depression, and (2) the claims related to the
conditions

of

Plaintiff’s

confinement,

including

any

alleged

policy to refuse adequate medical care. Rec. Doc. 76-1 at 4, 11.
A. EXCESSIVE FORCE
The parties appear to agree that the first tasing is not
actionable, based on this Court’s earlier Order and Reasons finding
certain actions barred by Heck. See Rec. Doc. 76-1 at 4 (citing
Rec. Doc. 49); Rec. Doc. 77 at 12.
According to Defendants, the second tasing, which took place
13 seconds after the first, was in “probe mode,” meaning that the
9

barbs fired from the taser were still in Plaintiff’s body from the
first tasing. Rec. Doc. 76-1 at 4 (citing Rec. Doc. 76-5 at 6).2
It “was a manually controlled burst which [Defendant] Spears
terminated after activating the taser for two (2) seconds.” Id.
(citing Rec. Doc. 76-4 at 4-6).3 According to Defendant Spears,
“the second tasing was necessary because [Plaintiff] was noncompliant, refusing to allow himself to be handcuffed.” Id. (citing
Rec. Doc. 76-4 at 3-4). Specifically, Defendants maintain that
Plaintiff
was noncompliant in that he would not make his right
hand available to the arresting officers so that he could
be fully handcuffed – the left hand had already been
placed in a handcuff. [Plaintiff] struggled and refused
to allow the placement of a handcuff on the right. Spears
tased him again, for two (2) seconds, and his compliance
was obtained.
Id. at 9.
However,

Defendants

suggest

that

during

his

deposition,

Plaintiff testified that he was “tased more than twice, both before
and after he was handcuffed.” Id. at 5 (citing Rec. Doc. 76-6 at
3-23) (emphasis in original).4 Specifically, Plaintiff said “they
never got the handcuff on me. . . . They had one hand behind my
back twisted. My other hand had went under me. Well, there’s four
Rec. Doc. 76-5 is the taser discharge report. The tasings at issue can be
found on page 6, lines 161-62.
3 Rec. Doc. 76-4 contains excerpts from Defendant Spears’ deposition testimony.
It will be cited according to the record document page number, rather than the
page number listed on the deposition transcript.
4 Rec. Doc. 76-6 contains excerpts from Plaintiff’s deposition testimony. It
will be cited according to the record document page number, rather than the
page number listed on the deposition transcript.
2

10

men on top of me, you know, and they all fighting for my hand. I
can’t move because I’m being tased.” Rec. Doc. 76-6 at 6. When
Plaintiff subsequently said “and he tases me again,” Defense
counsel asked “And that’s when they got the other arm out and
handcuffed you?” Id. Plaintiff responded “Yes, sir.” Id. This
testimony benefits Defendants, who argue that if Plaintiff was
tased before he was handcuffed, i.e. while he was still allegedly
resisting arrest, then the second tasing would be barred by Heck.
Rec. Doc. 76-1 at 5-6, 10.
After a recess during the deposition, however, Plaintiff
“clarified” his testimony. Id. at 6. At that time, Plaintiff’s
counsel stated that “the witness wants to make something clear
about some testimony that he’s not sure was clear concerning the
tasing and the handcuffing.” Rec. Doc. 76-6 at 21. Plaintiff then
testified “What I wanted to make clear was when I was on the floor,
they had my hand . . . and they tased me . . . I’m guessing what
would be the second time, I – they . . . bring my hand back around
and they . . . handcuff me, and then the taser goes off again . .
. .” Id.
Plaintiff
testimony.

maintains

After

Plaintiff

that

Defendants

responded

“Yes,

misrepresent
sir,”

to

his

defense

counsel’s question “And that’s when they got the other out and
handcuffed you,” defense counsel repeated the question: “Okay. So
you were handcuffed after they tased you the second time?” Rec.
11

Doc. 77-3 at 36. Plaintiff responded, “Second or possibly the third
time. The taser just kept going.” Id. at 36-37. In other words, it
appears that Plaintiff maintains that he consistently testified
that he was unsure when the second tasing occurred. Plus, before
the recess and subsequent “clarified testimony,” the following
exchange took place:
“I think you clarified that you were tased a second time
with your arm under your body, pinned under your body,
and then after the second tasing, they took your arm out
and handcuffed you; is that correct?”
“Well, I’m not 100 percent sure on that.”
“Okay.”
“As far as when you say the tasing, I was kind of semidizzy, but I – There’s a possibility that they, even
after I was handcuffed, they tased me, and I – That’s
the reason I kept telling them . . . Because there was
so many of them on me, I thought . . . the button was
being pressed by not knowing, not knowingly. I didn’t
know the guy was standing ten feet, you know, out there
with a taser gun just, just steady tasing one time after
– behind the next, just tasing me.”
Rec. Doc. 77-3 at 39-40.
In addition to the timing of the second tasing (and therefore
the validity of any claims arising from it), Defendants also
contest the severity of any injury allegedly resulting from the
second tasing. Rec. Doc. 76-1 at 10. They suggest that, while the
first, non-actionable tasing allegedly made Plaintiff fall and
strike his head, Plaintiff “has not suggested a mechanism through
which the second tasing could have led to a brain injury.” Id.

12

Further, Defendants maintain that Plaintiff’s expert, Dr. Kevin
Greve, stated that “[n]othing related to [Plaintiff’s] arrest or
subsequent

incarceration

has

caused

new

or

worsening

brain

damage.” Id. (quoting Rec. Doc. 76-7 at 2).5
Plaintiff responds that the second tasing “proximately caused
‘severe and progressively worsening depression.” Rec. Doc. 77 at
8. Dr. Greve apparently reviewed Defendants’ memorandum in support
of their motion and stated that
Although it is accurate that my findings were not
consistent with a traumatic brain injury, I did not
conclude that [Plaintiff] suffered no injury affecting
his mental state and cognitive abilities. Indeed, I
opined:
‘ . . . [T]he circumstances related to his
arrest and incarceration have lead to a psychological
reaction in the form of severe and progressively
worsening depression.
Rec. Doc. 77-13 at 3 (emphasis in original).6 Dr. Greve further
stated that “If we were to focus, solely, on the second instance
of [Plaintiff] being tased, my opinion would remain that this
second application of force (as well as other force applied after
he was tased the first time) caused psychological injury (i.e.,
severe depression).” Id. at 4. Ultimately, Dr. Greve concluded
that

“the

more

damaging

psychological

blow

inflicted

against

Rec. Doc. 76-7 contains Dr. Greve’s October 14, 2016 expert report.
Rec. Doc. 77-13 at 2-5 contains an affidavit from Dr. Greve. Notably, the
underlined statement was included in Dr. Greve’s original October 14, 2016
report. See Rec. Doc. 76-7 at 2.
5
6

13

[Plaintiff] may have been the second application of a taser, rather
than the first.” Id.7
In their reply, Defendants argue that Dr. Greve’s declaration
(Rec. Doc. 77-13 at 2-5) should not be considered because it is an
expert report initially filed as an attachment to Plaintiff’s
opposition on January 24, 2017 and expert reports had to be
exchanged by January 20, 2017. Rec. Doc. 84 at 6-7. To support
their assertion that the declaration is an expert report, they
noted that it “contains expert opinions, expert commentary, and
elaborates extensively on Dr. Greve’s original October 14, 2016,
timely report.” Id. at 7.
Further, even if the Court were willing to overlook the
untimeliness of the declaration/report, Defendants argue that it
suffers

from

issues

under

Daubert

Incorporated, 509 U.S. 579 (1993):

v.

Dow

Pharmaceuticals,

(1) “it offers no scientific

background for Greve’s opinion that the two second tasing that
indisputably took place thirteen seconds after the first, and was
of shorter duration, would have . . . somehow lead to a [more]
severe psychological reaction”; (2) Dr. Greve does not explain how
Plaintiff’s incarceration might have contributed to Plaintiff’s
depression or in what proportion; and (3) Dr. Greve does not
consider other factors that might have impacted his opinion,

These findings, specifically related to the second tasing, were not included
in Dr. Greve’s original October 14, 2016 report.
7

14

including Plaintiff’s “pre-existing depression, his penchant for
violence, his substance abuse problems, [and] a prior suicide
attempt . . . .” Rec. Doc. 84 at 7-8. Because Dr. Greve “failed to
make any attempt to eliminate some of the most obvious causes for
[Plaintiff’s] depression, i.e., make a differential diagnosis . .
. [h]is methodology is . . . unreliable [and t]he Daubert standard
. . . precludes the use of the expert report and Declaration.” Id.
Finally, Defendants argue that Dr. Greve’s declaration is
comparable to a “sham affidavit.” Rec. Doc. 84 at 9. They explain
that his original report does not distinguish between damages
caused by the first tasing, second tasing, and/or Plaintiff’s
incarceration and his declaration is merely an attempt to attribute
all damages to the second tasing (arguably the only avenue for
recovery

remaining

for

Plaintiff).

Id.

In

Defendants’

words,

“[Plaintiff’s] attorney specifically advised Greve that the first
tasing is not [] actionable. . . . Greve then, naturally, focuses
in his Declaration on the second tasing, concluding – voila! –
that the second tasing was more significant than the first. . . .”
Id.8

8

Defendants also made other arguments related to Plaintiff’s excessive force
claims, including that they have a video refuting Plaintiff’s claim that he was
“shoved” into a patrol car and that they have EMT records to refute any claim
that Plaintiff did not receive medical treatment on the day of his arrest. Rec.
Doc. 76-1 at 10-11; see also Rec. Doc. 76-9 at 6. However, Plaintiff did not
address these arguments in his opposition, so we will assume that there is no
genuine issue of material fact and that he no longer maintains these claims.
Further, the parties have competing experts and both parties cite to those
experts throughout their memoranda. Naturally, the experts disagree as to the
reasonableness of the second tasing. Given the conflicting opinions, the

15

B. CONDITIONS OF CONFINEMENT
In Plaintiff’s § 1983 claims against Defendants Seal, Haley,
and Miller, Defendants recognize four specific claims related to
the conditions of Plaintiff’s confinement:
a

policy

to

intentionally

overcrowd

(1) the existence of

Washington

Parish

Jail,

forcing certain inmates, including Plaintiff, to sleep on the
floor; (2) the existence of a policy to allow the jail walls to
remain “caked” with black mold and to improperly ventilate the
jail; (3) the existence of either an explicit or de facto policy
against providing adequate medical care to inmates; and (4) failure
to provide adequate administrative remedies to inmates. Rec. Doc.
76-1 at 11.
In his opposition, Plaintiff only addresses the last two
claims. He specifically admits that he “is not making claims for
mold-related injuries.” Rec. Doc. 77 at 16 n.1. However, he simply
does not address the arguments that Defendants raised regarding
any alleged overcrowding. See Rec. Doc. 76-1 at 12. Therefore, we
will assume that there is no genuine issue of material fact as to
these claims, such that Defendants are entitled to judgment as a
matter of law.
Further, it appears that Plaintiff is treating his claims of
inadequate medical treatment and administrative remedies as a

reasonableness of the second tasing will not be determined on summary judgment.
Instead, our analysis at the summary judgment stage will focus on whether or
not Plaintiff’s excessive force claim is Heck-barred.

16

single, related claim. He argues that “the focus of his claim is
on the policies and conditions that affected both Magee and other
detainees,

viz.,

the

failure

to

administer

and

monitor

medications, and the attendant systemic falsification of medical
records and destruction of ARP complaint forms submitted not only
by Magee but other detainess.” Rec. Doc. 77 at 16 (emphasis added).
In

other

words,

the

jail’s

failure

to

provide

adequate

administrative outlets led to, or was a part of, the jail’s failure
to provide adequate medical treatment. Consequently, below, we
will

address

a

single

claim

related

to

the

conditions

of

Plaintiff’s confinement, encompassing claims of inadequate medical
care and administrative procedures.
III. LAW AND ANALYSIS
Under Federal Rule of Civil Procedure 56, summary judgment is
appropriate

only

interrogatories,

if
and

“the

pleadings,

admissions

on

depositions,
file,

together

answers

to

with

the

affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (quoting FED. R. CIV. P. 56(c)). See also TIG Ins. Co. v.
Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). A
genuine issue exists if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The movant must point to
17

“portions

of

interrogatories,

‘the
and

pleadings,
admissions

depositions,
on

file,

answers

together

with

to
the

affidavits, if any,’ which it believes demonstrate the absence of
a genuine issue of material fact.” Celotex, 477 U.S. at 323. If
and when the movant carries this burden, the non-movant must then
go beyond the pleadings and present other evidence to establish a
genuine issue. Matsushita Elec. Indus. Co., Ltd. V. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
However, “where the non-movant bears the burden of proof at
trial, the movant may merely point to an absence of evidence, thus
shifting to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material fact
warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616,
618 (5th Cir. 1994). Conclusory rebuttals of the pleadings are
insufficient to avoid summary judgment. Travelers Ins. Co. v.
Liljeberg Enter., Inc., 7 F.3d 1203, 1207 (5th Cir. 1993).
A. EXCESSIVE FORCE
1. DID THE SECOND TASING OCCUR BEFORE OR AFTER PLAINTIFF
WAS FULLY HANDCUFFED?
Defendants

argue

that

Plaintiff’s

“clarified”

deposition

testimony should be dismissed in the same way that the Fifth
Circuit dismisses “sham affidavits” that, without explanation,
impeach sworn testimony in an attempt to defeat summary judgment.
Rec. Doc. 76-1 at 7-8 (citing S.W.S. Erectors, Inc. v. Infax, Inc.,

18

72 F.3d 489, 495 (5th Cir. 1996) (“It is well settled that this
court does not allow a party to defeat a motion for summary
judgment using an affidavit that impeaches, without explanation,
sworn testimony”); Thurman v. Sears, Roebuck & Co., 952 F.2d 128,
137 n.23 (5th Cir. 1992); Metro Cty. Title Inc. v. F.D.I.C., 13
F.3d 883, 887 n.16 (5th Cir. 1994); Albertson v. T.J. Stevenson &
Co., 749 F.2d 223, 228 (5th Cir. 1984).9 Defendants argue that
Plaintiff is maintaining that “he was tased for the second time
both before and after being handcuffed.” Rec. Doc. 84 at 3. Thus,
according to Defendants, “[a]n after-the-fact effort to repair the
damaging effects of a party’s testimony by reversing course can be
accepted by the courts only if a credible explanation for the 180
degree change in position is presented.” Id. (citing Thurman, 952
F.2d at 136 n.23 (“The only explanation that Thurman offers for
the contradictory statements contained in his Second Affidavit is
that Sears’ counsel outwitted him and made him utter words he did
not intend—which words should not be construed against him as a
conclusive admission. We find this explanation insufficient to

Defendants argue that the “sham affidavit” approach accords with the “sham
issue of fact” doctrine adopted in other circuits. Rec. Doc. 76-1 at 8-9 (citing
In re Fosamax Prods. Liabl. Litig., 707 F.3d 189, 193 (2d Cir. 2013) (“the
District Court was entitled to disregard Dr. Epstein’s new testimony relating
to his knowledge based on the ‘sham issue of fact’ doctrine, which prohibits a
party from defeating summary judgment simply by submitting an affidavit that
contradicts the party’s previous sworn testimony.”); Vinewood Capital, LLC v.
Dar Al-Maal Al-Islami Trust, 541 F. App’x 443, 447-48 (5th Cir. 2013) (“a
party’s uncorroborated self-serving testimony cannot prevent summary judgment,
particularly if the overwhelming documentary evidence supports the opposite
scenario”) (citing Vais Arms, Inc. v. Vais, 383 F.3d 287, 294 (5th Cir. 2004))).
9

19

create genuine issues of material fact required to defeat summary
judgment.”); Albertson, 749 F.2d at 228 (“[t]he nonmovant cannot
manufacture a disputed material fact where none exists. Thus, the
nonmovant cannot defeat a motion for summary judgment by submitting
an affidavit which directly contradicts, without explanation, his
previous testimony.”)).
Plaintiff counters that the “sham affidavit” argument is
invalid in light of all of Plaintiff’s deposition testimony, which
demonstrates that he consistently stated that he was not sure when
the second tasing took place and that it might have been after he
was handcuffed. Rec. Doc. 77 at 7.10
Defendants respond that “[t]he overwhelming evidence shows
that the second . . . tasing occurred before plaintiff was placed
in handcuffs” and that “[t]he mere argued existence of a factual
dispute will not defeat an otherwise properly supported motion.”
Rec. Doc. 84 at 2 (citing Anderson, 477 U.S. at 248 (“a party
opposing a properly supported motion for summary judgment ‘may not
rest upon the mere allegations or denials of his pleading, but .
. . must set forth specific facts showing that there is a genuine

Plaintiff also makes a point to note that, even though the taser data was
requested in April of 2015, Defendants did not turn over the data until September
9, 2016 (sixteen months after the initial request and approximately one month
after Plaintiff’s deposition). Rec. Doc. 77 at 7-8. Discovery issues may be
handled through various motions to compel or for sanctions. See FED. R. CIV. P.
37. Defendants’ delay in turning over this data, without more, is not an
appropriate defense to Defendants’ argument that Plaintiff’s excessive force
claims are barred.
10

20

issue for trial.’”) (internal citations omitted)).11 Defendants
note that Plaintiff’s deposition testimony that he was tased
possibly three times and that the taser “just kept going” is
inconsistent with the taser records, which show only two tasings.
Rec. Doc. 84 at 2-3.
After considering the parties’ arguments and reading the
deposition testimony in full, it does not appear to the Court that
Plaintiff

“clarified”

his

testimony

merely

in

an

attempt

to

preserve a genuine issue of fact, but because he was sincerely
uncertain

about

when

the

second

tasing

occurred.

Defendants

present testimony from officers stating that the second tasing
occurred before Plaintiff’s right hand was cuffed. Thus, there is
conflicting testimony as to the timing of the second tasing. We
cannot weigh the evidence or make credibility determinations on a
motion for summary judgment. Blank v. Bell, 634 F. App’x 445, 447
(5th Cir.), cert. denied, 136 S. Ct. 2036 (2016) (citing Deville
v. Marcantel, 567 F.3d 156, 163-64 (5th Cir. 2009)). Thus, it is

Defendants also argue that, while judges may not make credibility
determinations on a motion for summary judgment, “they are not precluded from
ignoring common sense and human experience.” Rec. Doc. 84 at 2-3 (citing Hobgood
v. Ill. Gaming Bd., 731 F.3d 635, 646 (7th Cir. 2013)). In Hobgood, the Seventh
Circuit was considering Plaintiff’s argument that Defendant’s stated reasons
for the plaintiff’s termination were mere pretexts for unlawful retaliation.
731 F.3d at 645. After noting the stated reasons, the Seventh Circuit stated
that “[w]e do not second guess an employer’s business decision, but neither do
we ‘abandon good reason and common sense in assessing an employer’s actions.’”
Id. at 646. The court then cited a string of cases in which an employer’s stated
reason for a termination was without factual basis or completely unreasonable
and therefore “evidence that [the] employer might be lying about its true
motivation.” Id. Neither Hobgood, nor the cases cited within it are helpful in
the instant case.
11

21

for the jury to consider all of the evidence and determine if the
second

tasing

handcuffed.

If

occurred
the

before

tasing

or

occurred

after
after

Plaintiff
he

was

was

fully

handcuffed,

Plaintiff’s claims are certainly not barred by Heck.
2. EVEN IF THE SECOND TASING OCCURRED BEFORE PLAINTIFF WAS
HANDCUFFED, ARE HIS EXCESSIVE FORCE CLAIMS NECESSARILY
HECK-BARRED?
This

Court’s

earlier

Order

specifically

found

that

“Plaintiff’s allegations that excessive force was used after he
was handcuffed certainly do not invalidate his guilty plea to
resisting arrest prior to being restrained, and therefore this
claim is not Heck-barred.” Rec. Doc. 49 at 16. We recognized that,
at the time, Plaintiff was alleging only “that the officers came
down on his back after he fell to the ground, handcuffed him, and
[then] tased him once more. (Rec. Doc. 23 at 13).” Id. at 16 n.6.12
Thus, we declined to “dismiss claims of excessive force after
handcuffing in the absence of additional information . . . .” Id.
at 16. Plaintiff’s claims of excessive force used prior to being
restrained, however, would tend to undermine his guilty plea to
resisting arrest, so they were found to be barred by Heck. Id. at
16-17. Thus, based on the information and allegations then before
the Court, we ruled that only Defendant’s post-handcuffing conduct
could be used to support Plaintiff’s claims of excessive force.

Plaintiff’s memorandum in opposition to the motion specifically stated that
the second tasing “was delivered to Plaintiff after Plaintiff had been
handcuffed.” Rec. Doc. 41 at 2-3.
12

22

Nonetheless,

Plaintiff

now

alleges

that

he

has

a

valid

excessive force claim even if the second tasing occurred before a
second handcuff was applied. Id. Plaintiff argues that there is no
legal support for Defendants’ position that “only alleged posthandcuffing excessive force is actionable” or for their assertion
that Plaintiff “struggled” while he was on the ground. Rec. Doc.
77 at 12 (citing Rec. Doc. 76 at 5). Further, Plaintiff argues
that his guilty plea could apply only to “his initial actions in
getting up from the chair and turning toward the house, rather
than coming toward one of the Deputies who had gestured to him.”
Rec. Doc. 77 at 14 (citing Bramlett v. Buell, No. 04-518, 2004 WL
2988486 (E.D. La. Dec. 9, 2004). “Accordingly, [Plaintiff’s] civil
claim regarding the use of force when he was tased a second time
can co-exist with [his] criminal charge.” Id. (citing Bush v.
Strain, 513 F.3d 492 (5th Cir. 2008)).
At its core, our earlier ruling barred any claims that would
undermine Plaintiff’s guilty plea to resisting arrest. Plaintiff
is now arguing that his guilty plea only applied to his noncompliant conduct before the second tasing and we will entertain
those arguments now.
In Bramlett, officers responded to reports of a “scuffle” at
a daiquiri shop. 2004 WL 2988486, at *1. Upon arriving at the
scene, Derrick Bramlett, who was sitting in his vehicle, was
identified as one of the individuals involved in the scuffle. Id.
23

The officers approached the vehicle, one standing in front of the
vehicle and the other approaching from the driver’s side. Id.
Bramlett was asked to exit the vehicle, but he instead “started
the engine and accelerated toward” the officer in front of him.
Id. The officers fired several shots; Bramlett survived, but “was
shot once in the head and twice in the back.” Id. Bramlett was
subsequently

found

guilty

of

aggravated

battery

against

the

officer standing in front of the vehicle and of three counts of
vehicular negligent injury to pedestrians. Id. at *2. In Bramlett’s
subsequent § 1983 action, Bramlett alleged that the officers used
excessive force when they shot at him. Id. The officers argued on
summary

judgment

that

Bramlett’s

excessive

force

claims

were

barred by Heck. Id. Bramlett denied that “a judgment in his favor
on the excessive force issue would be inconsistent with his
criminal convictions because the battery against [the officer]
occurred

prior

considering

(1)

to

the

“the

use

of

specific

excessive
elements

force.”

that

Id.

After

comprise[d]

the

conviction at issue” and (2) “the specific facts being alleged in
the civil case,” the court determined that Bramlett’s aggravated
battery conviction had no preclusive effect under Heck on the
excessive force claim. Id. at *4. During Bramlett’s trial, the
officer testified that he had jumped out of the moving vehicle’s
path before shots were fired; “[t]hus, [the officer] did not shoot
Bramlett in self-defense in order to protect himself from an
24

attempted murder or from an aggravated battery” and “a finding in
this case that the officers stepped over the line in shooting
Bramlett

would

do

nothing

to

undermine

the

conviction

for

aggravated battery.” Id. See also Smithart v. Towery, 79 F.3d 951
(9th Cir. 1996).
In Bush, the plaintiff threw a cup of ice water at a witness
being interviewed by police. 513 F.3d at 496. An officer then
attempted to arrest her for simple battery. Id. When her left hand
was handcuffed, the plaintiff pulled her right arm away. Id. The
officer testified that, while he was trying to cuff the plaintiff’s
right hand, she continued to resist and the two of them fell onto
the rear window of a nearby vehicle. Id. The plaintiff testified
that she stopped resisting, both hands were cuffed, and that the
officer then forced her face into the rear window of a nearby
vehicle. Id. The plaintiff filed a § 1983 action for excessive
force; after she was subsequently convicted of resisting arrest,
the officers moved for, and were granted, summary judgment under
Heck. Id. On appeal, the Fifth Circuit recognized that even though
Heck “applies to § 1983 excessive force claims, the determination
of whether such claims are barred is analytical and fact-intensive,
requiring us to focus on whether success on the excessive force
claim requires negation of an element of the criminal offense or
proof of a fact that is inherently inconsistent with one underlying
the criminal conviction.” Id. at 497. The Fifth Circuit continued,
25

[A] § 1983 claim would not necessarily imply the
invalidity of a resisting arrest conviction, and
therefore would not be barred by Heck, if the factual
basis for the conviction is temporally and conceptually
distinct from the excessive force claim. Accordingly, a
claim that excessive force occurred after the arrestee
has ceased his or her resistance would not necessarily
imply the invalidity of a conviction for the earlier
resistance.
Id. at 498. In the plaintiff’s criminal trial, the state court
judge found that the officer “advised the defendant that she was
under arrest and that as he was attempting to cuff her she
struggled to get free from him to strike this other person . . .
So, I find the defendant guilty of res[isting].” Id. at 499.
According to the Fifth Circuit, “[t]he court made no findings
regarding how long Bush’s resistance lasted or at what point Bush
was injured.” Id. Ultimately, “[b]ecause Bush . . . produced
evidence that the alleged excessive force occurred after she
stopped resisting arrest, and the fact findings essential to her
criminal conviction are not inherently at odds with this claim, a
favorable verdict on her excessive force claims will not undermine
her criminal conviction.” Id. at 500.
In the instant case, Defendants argue “that the timing of the
handcuffing is irrelevant because the Fifth Circuit recognizes a
Heck bar if the incident involves a single interaction.” Rec. Doc.
84 at 5 n.1 (citing DeLeon v. City of Corpus Christi, 488 F.3d
649, 656 (5th Cir. 2007)). More specifically, Defendants assert
that “a claim of full innocence coupled with a guilty plea means
26

that the entire excessive force claim is Heck-barred if it involves
a single interaction, as it does here.” Id. at 6 (citing Daigre v.
City of Waveland, Miss., 549 F. App’x 283, 287 (5th Cir. 2013);
Arnold v. Town of Slaughter, 100 F. App’x 321 (5th Cir. 2004) (in
which the plaintiff asserted in the civil case that he had done
nothing wrong and was viciously attacked by the officer for no
reason, but the judge in the earlier criminal case made a specific
finding that the plaintiff resisted the officer by being hostile
and threatening; thus, the Fifth Circuit determined that a judgment
in the plaintiff’s favor based upon the theory that the officer
used force against him for no reason whatsoever would be contrary
to this standing conviction) ; DeLeon, 488 F.3d at 656-57 (where
the

“complaint

maintains

that

[the

civil

plaintiff/criminal

defendant] did nothing wrong” and still thought he was innocent)).
However, Plaintiff does not maintain that he never resisted
or that he was “completely innocent.” Rather, Plaintiff “did admit
in his deposition that one of the Deputies had gestured to him to
‘come here’, before [Plaintiff] went toward the house and before
he was tased the first time, and that [Plaintiff], instead, turned
toward the kitchen door.” Rec. Doc. 77 at 3 (citing Rec. Doc. 773 at 29-32). Significantly, the Fifth Circuit in Bush made the
following observations:
The defendants also argue, albeit inartfully, that
Bush’s complaint does not allege that her claims of
excessive force are separable from the events underlying
27

her resisting arrest conviction. Specifically, the
defendants point to the statement in Bush’s complaint
that “[a]t no time did the plaintiff resist her arrest.”
If we were to take this statement at face value, we might
agree with the defendants. However, taking the statement
in context, we conclude that Bush has adequately pleaded
a claim for excessive force occurring after she was
restrained.
513 F.3d at 499; see also Daigre, 549 F. App’x at 287 (“Unlike the
allegations in Bush, Daigre’s broad claims of innocence relate to
the entire arrest encounter, and not merely a discrete part of
it.”). Similarly, if we read particular sentences in Plaintiff’s
complaint or memoranda out of context, it may appear that he was
claiming complete innocence. However, he explicitly admitted to
turning and walking away from the officers on the scene after being
told in a non-verbal way to “come here.” Rec. Doc. 77 at 3. He
does not deny resisting in that way; rather, he denies resisting
after being tased the first time and alleges that the second tasing
was excessive. Indeed, contrary to Defendants’ overbroad argument,
the court in Bramlett noted that “nothing in Heck and its progeny
support the proposition that a § 1983 excessive force claim is
barred merely because the same set of events give rise to both the
criminal

conviction

and

the

excessive

force

claim.”

2004

WL

2988486, at *4.
Here, the record does not appear to contain the bill of
information to which Plaintiff pled guilty, the factual basis for
his plea, or findings of fact by a judge or jury. The Ninth Circuit

28

faced

a

similar

situation

in

Smith

v.

City

of

Hemet,

where

plaintiff admitted to obstructing justice by repeatedly refusing
to cooperate after being given verbal commands from officers; the
officers then sought to take the plaintiff into custody and they
used physical force to subdue him. 394 F.3d 689, 698 (9th Cir.
2005). The court explained:
As in Sanford v. Motts, “nothing in the record informs
us what the factual basis for [Plaintiff’s] plea” was.
258 F.3d [1117,] 1119 [(9th Cir. 2001)]. There is no
indication as to whether Smith’s plea was based on his
conduct that impeded the officers’ investigation before
they came onto the porch, or his subsequent resistance
to their physical attempt to arrest him, or both. The
record is clear that Smith pled guilty to one count of
violation § 148(a)(1) when he willfully and unlawfully
resisted, delayed, and obstructed the defendant officers
in the discharge of, and attempt to discharge, their
duty. Neither party in its briefs or at oral argument
was able to identify the facts underlying the plea or to
advise us regarding what transpired at the time Smith
entered his plea. It is therefore entirely possible
that, as Smith asserts, he pled guilty to a violation of
§ 148(a)(1) on the basis of his actions during the time
the officers were conducting their lawful investigation.
. . . Because we are unable to determine “the factual
basis for [Smith’s] plea,” id., his lawsuit does not
necessarily imply the invalidity of his conviction and
is therefore not barred by Heck.
Id.
In Pertuz v. Normand, the § 1983 plaintiff previously pled
guilty to resisting arrest under Louisiana Revised Statute §
14:108; as to the basis for her guilty plea, the judge stated
merely that “I find that there is a factual basis which exists for
the defendant to plead guilty to the above mentioned claims.” No.

29

13-0293, 2014 WL 1246839, at *1 (E.D. La. Mar. 25, 2014). The court
ultimately determined that her excessive force claims were not
Heck-barred, because the plaintiff’s alleged sequence of events
(some resistance followed by excessive force after the resistance
ceased) was “consistent with her criminal conviction for resisting
an officer and her section 1983 excessive use of force claim.” Id.
at *7.
Here, we do not know the factual basis for Plaintiff’s guilty
plea. Accordingly, it is possible that Plaintiff pled guilty to
resisting arrest based solely on his initial reaction (standing
and walking away from the officers). If this is true, then any
judgment in his favor on his excessive force claims for police
conduct following the first tasing would not tend to undermine
Plaintiff’s

earlier

guilty

plea.13

Accordingly,

based

on

the

information before us, Defendants are not entitled to judgment as
a matter of law on Plaintiff’s remaining excessive force claim.

Notably, unlike the Texas statute for resisting arrest (Tex. Penal Code §
38.03), the Louisiana statute (LA. REV. STAT. ANN. § 14:108) does not require
showing that the defendant prevented or obstructed a peace officer “by using
force against the peace officer or another.” See also Stephens v. Scott, 244 F.
App’x 603, 604 (5th Cir. 2007) (affirming summary judgment finding that the
plaintiff’s excessive force claims were Heck-barred because the plaintiff’s
claims that “he did not use force against the officers in any way” would
necessarily conflict with his guilty plea to the Texas statute). Here,
Plaintiff’s alleged series of events (initial resistance by walking away, not
using force, followed by the first and second tasings) do not necessarily
conflict with his guilty plea to the Louisiana statute.
13

30

B. MEDICAL CARE
The parties disagree as to the appropriate standard to be
applied to Plaintiff’s claims of inadequate medical care and
administrative remedies. This is because Plaintiff’s claims may
arise under one of two theories:

a challenge of (1) a “condition

of confinement” or (2) an “episodic act or omission.” Shepherd v.
Dallas Cty., 591 F.3d 445, 452 (5th Cir. 2009) (quoting Hare v.
City of Corinth, Miss., 74 F.3d 633, 644-45 (5th Cir. 1996)). If
Plaintiff properly states a claim challenging a condition of
confinement, Defendants’ intent may be inferred. Id. “More often,
however,

a

plaintiff's

claim,

properly

characterized,

faults

specific jail officials for their acts or omissions because the
plaintiff

cannot

establish

the

existence

of

an

officially

sanctioned unlawful condition.” Id. “[T]he focus of the claim is
one individual's misconduct, the detainee is required to prove
intent—specifically, that one or more jail officials ‘acted or
failed to act with deliberate indifference to the detainee's
needs.’” Id. (quoting Hare, 74 F.3d at 648).
Plaintiff argues that he has alleged a policy or condition.
Defendants argue, in a conclusory manner, that Plaintiff must
demonstrate

a

sufficiently

serious

injury

and

deliberate

indifference. Nonetheless, Plaintiff maintains that, even if we
find the evidence insufficient to support a claim related to the
conditions of confinement, he has adequately alleged deliberate
31

indifference. Accordingly, we will consider Plaintiff’s claim
under both standards.
1. CONDITIONS OF CONFINEMENT
Based on Plaintiff’s testimony and the affidavit of former
jail employee Tanner Rochester, Plaintiff alleges that the focus
of his claim is the jail’s official policy or pervasive condition.
Rec. Doc. 77 at 16. However, it is important to note that the
standard proposed by Plaintiff is rarely used and is available
only when there “is a challenge to ‘general conditions, practices,
rules, or restrictions of pretrial confinement’ . . . such as ‘the
number

of

bunks

per

cell,

mail

privileges,

disciplinary

segregation, etc.’” Estate of Henson v. Wichita Cty., Tex., 795
F.3d 456, 463 (5th Cir. 2015) (quoting Hare, 74 F.3d at 644;
Shepherd, 591 F.3d at 452).
Plaintiff claims that there is either an explicit or de facto
policy to provide inadequate medical care. The affidavit of Tanner
Rochester (which Defendant argues should be ignored because it is
not based on personal knowledge of the jail at the time of
Plaintiff’s confinement) suggests that there was, at most, an
unwritten policy to withhold medication as a form of punishment.
Rec. Doc. 77-10 at ¶ 7. Thus, at most, the evidence presented by
Plaintiff suggests that there was a de facto policy.
[A] condition may reflect an unstated or de facto policy,
as evidenced by a pattern of acts or omissions
‘sufficiently extended or pervasive, or otherwise
32

typical of extended or pervasive misconduct by [jail]
officials, to prove an intended condition or practice.’
Proving a pattern is a heavy burden, one that has rarely
been met in our caselaw. Further, to constitute
impermissible punishment, the condition must be one that
is ‘arbitrary or purposeless’ or, put differently, ‘not
reasonably related to a legitimate goal.’
Shepherd, 591 F.3d at 452 (citing Hare, 74 F.3d at 645; Bell v.
Wolfish, 441 U.S. 520, 539 (1979)).
Ultimately, to succeed on a conditions of confinement claim,
Plaintiff must be able to show and, at the summary judgment stage,
must be able to point to some evidence that:
(1) “a rule or restriction or ... the existence of an
identifiable intended condition or practice ... [or]
that the jail official's acts or omissions were
sufficiently extended or pervasive”; (2) which was not
reasonably
related
to
a
legitimate
governmental
objective; and (3) which caused the violation of [the
inmate's] constitutional rights.
Estate of Henson, 795 F.3d at 468 (citing Duvall v. Dallas Cty.,
Tex., 631 F.3d 203, 207 (5th Cir. 2011) (quoting Hare, 74 F.3d at
645); Edler v. Hockley Cty. Comm’rs Court, 589 F. App’x 664, 668
(5th Cir. 2014)).
In Shepherd, the plaintiff “presented extensive independent
evidence” to prove a de facto policy of failing to properly treat
inmates; the Fifth Circuit determined that such a policy was
“reasonably
United

infer[red]”

States

from

Department

of

a

county-commissioned

Justice

report,

jail

report,

a

officials’

affidavits, and other documentary evidence indicating that the
inmates received “grossly inadequate” treatment. 591 F.3d at 453.
33

In Estate of Henson, the plaintiffs alleged that a doctor was
only required to be at the jail three times per week; nurses were
not required to be at the jail 24-hous per day; the nurses were
licensed vocational nurses (“LVNs”), not registered nurses; the
LVNs were not supervised, as required by law; and “the lack of
standing

orders

regarding

pneumonia,

Emphysema,

and

Chronic

Obstructive Pulmonary Disorder (COPD), when combined with [the
doctor’s] absence, the LVNs lack of supervision, and [the doctor’s]
nurse intimidation, forced LVNs to illegally diagnose and treat
Henson.” 795 F.3d at 468-69. Even though the plaintiffs “identified
a combination of staffing policies and practices,” the Fifth
Circuit determined that the staffing arrangement was reasonably
related to providing medical attention to inmates and did not
amount to punishment. Id. at 469 (citing Bell, 441 U.S. at 542).
To prove that the medical system was constitutionally deficient,
the plaintiffs needed to present evidence of “more than an isolated
incident; [they] ‘must demonstrate a pervasive pattern of serious
deficiencies in providing for his basic human needs.’” Id. (citing
Edler, 589 F. App’s at 668 (quoting Shepherd, 591 F.3d at 454);
Duvall, 631 F.3d at 208).
In the instant case, Plaintiff alleges that there is a de
facto policy to refuse to administer and monitor medications,
falsify medical records, and destroy ARP complaint forms submitted
by inmates. Rec. Doc. 77 at 16; see also Rec. Doc. 77-10 at ¶¶ 834

11. Looking at the evidence presented, there appear to be sporadic
lapses or delays in the administration of medication to Plaintiff.
Rec. Doc. 77 at 8-9. These failures do not appear “sufficiently
extended or pervasive.” Rather, “the complained-of harm [appears
to be] a particular act or omission of one or more officials.”
Smith v. Kaufman Cty. Sheriff’s Office,
7547621,

at

*11

(N.D.

Tex.

Dec.

14,

No.

10-703, 2011 WL

2011),

report

and

recommendation adopted sub nom., 2012 WL 850777 (N.D. Tex. Mar.
14,

2012).

In

other

words,

particular

jail

personnel

were

“interposed between the detainee and the municipality, such that
the detainee complains first of a particular act of, or omission
by, the actor and then points derivatively to a policy, custom, or
rule (or lack thereof) of the municipality that permitted or caused
the act or omission.” Estate of Henson, 795 F.3d at 463 (citing
Scott v. Moore, 114 F.3d 51, 53 (5th Cir. 1997)). Further, to prove
some policy or condition, Plaintiff relies solely on his own
testimony and the affidavit of a former jail employee.14 Finally,
unlike the plaintiff in Shepherd, Plaintiff has not demonstrated
that “serious injury and death were the inevitable results of the
jail’s” practices. See Shepherd, 591 F.3d at 454; see also Duvall,
631 F.3d at 208 (finding a de facto policy of exposing inmates to
disease where there were around two hundred infections per month

14

Notably, Defendants contest the validity of this affidavit. See infra.

35

and the “bizarrely high incidence” of the disease was known to the
County); Estate of Henson, 795 F.3d at 469 (finding that there was
no claim for conditions of confinement, even where the plaintiffs
represented a deceased inmate and presented evidence of another
death in the jail four months earlier); see infra for a more robust
discussion of the seriousness of Plaintiff’s claimed injuries.
Consequently, we find that Plaintiff has not presented a claim for
unconstitutional conditions of confinement.
2. EPISODIC ACT OR OMISSION
“A supervisor cannot be held liable under section 1983 on the
basis of respondeat superior.” Southard v. Tex. Bd. of Criminal
Justice, 114 F.3d 539, 550 (5th Cir. 1997) (citing Monell, 436
U.S. at 694 n.58). “Rather, the misconduct of the subordinate must
be

affirmatively

linked

to

the

action

or

inaction

of

the

supervisor.” Id. at 550-51. For example, “a municipality can be
liable for failure to train its employees when the municipality’s
failure shows ‘a deliberate indifference to the rights of its
inhabitants.’” Farmer v. Brennan, 511 U.S. 825, 840 (1994) (quoting
Canton v. Harris, 489 U.S. 378, 389 (1989)). Thus, for a party to
succeed on a failure-to-train claim, he or she must demonstrate
that (1) the training procedures were inadequate; (2) the defendant
was deliberately indifferent in adopting its training policy; and
(3)

the

inadequate

training

policy

directly

caused

the

constitutional violation. Sanders-Burns v. City of Plano, 594 F.3d
36

366, 381 (5th Cir. 2010); see also Saenz v. City of El Paso, 637
F. App’x 828, 832 (5th Cir. 2016).
Ordinarily,

to

demonstrate

deliberate

indifference,

“a

plaintiff may allege that the municipality had ‘[n]otice of a
pattern of similar violations,’ which were ‘fairly similar to what
ultimately

transpired.’”

Saenz,

637

F.

App’x

at

832

(citing

Sanders-Burns, 594 F.3d at 381). “Alternatively, a plaintiff may
allege deliberate indifference if the specific injury suffered is
a ‘patently obvious’ or ‘highly predictable’ result of inadequate
training.” Id. (quoting Connick v. Thompson, 563 U.S. 51, 64
(2011)).

Notably,

“[w]here

an

inmate

can

show

no

more

than

‘ordinary negligence,’ such lapses by jail staff do not demonstrate
‘a

condition

so

threatening

as

to

implicate

constitutional

standards.’” Kitchen v. Dallas Cty., Tex., 759 F.3d 468, 483 (5th
Cir. 2014), overruling on other grounds recognized by Thompson v.
Beasley, 309 F.R.D. 236 (N.D. Miss. July 13, 2015) (quoting Coleman
v. Sweetin, 745 F.3d 756, 764 (5th Cir. 2014)). As to claims of
inadequate medical care, the plaintiff “must establish ‘deliberate
indifference to serious medical needs.’” Wesson v. Oglesby, 910
F.2d 278, 283 (5th Cir. 1990) (emphasis added) (quoting Estelle v.
Gamble, 429 U.S. 97 (1976)).
First, Defendants argue that Plaintiff has failed to show
that any violation was sufficiently serious. Rec. Doc. 76-1 at 15.

37

Second, Defendants maintain that Plaintiff cannot prove deliberate
indifference. Id. at 17.
a. DID PLAINTIFF SUFFER A SUFFICIENTLY SERIOUS INJURY?
The Fifth Circuit “has held that minor ailments do not
constitute a serious medical need . . . .” Pierce v. Scott, 162
F.3d 1159 (5th Cir. 1998) (citations omitted); see also Tasby v.
Cain, 86 F. App’x 745, 746 (5th Cir. 2004) (determining that the
plaintiff’s

assertion

that

he

suffered

a

rash

was

not

a

sufficiently “serious harm” under § 1983); Wesson, 910 F.2d at 284
(finding that “swollen wrists with some bleeding, do not constitute
such a ‘serious medical need’ that any minor delay caused by the
defendants in delivering [the plaintiff] to the care of medical
personnel

could

be

construed

as

‘deliberate

indifference’”);

Patterson v. Orleans Par. Dist. Attorney’s Office, No. 06-7322,
2007 WL 5063238, at *17 (E.D. La. April 16, 2007), report and
recommendation adopted sub nom., 2008 WL 915447 (E.D. La. Mar. 31,
2008) (finding that “back or leg pain, ‘nerves’ and blood pressure”
did not present serious medical needs that posed a substantial
risk of harm during the plaintiff’s incarceration); Claudet v.
Jones, No. 10-87, 2010 WL 4365512, at *4 (E.D. La. Oct. 27, 2010)
(finding that the plaintiff’s back, neck, shoulder, and chest pain,
as well as his high blood pressure, were not serious medical
needs); Lusk v. Dallas Cty. Sheriff’s Dep’t, No. 00-662, 2002 WL
31757706, at *4 (N.D. Tex. Nov. 29, 2002) (finding that a herniated
38

disc

and

degenerative

spinal

disease

were

not

sufficiently

serious).15
Here, Defendants argue that, according to Plaintiff’s own
expert, Dr. Fadi Hendee, “[Plaintiff] could have sustained a
serious injury but . . . he did not.” Rec. Doc. 76-1 at 15.
Specifically, Dr. Hendee made the following findings:
In his Deposition, [Plaintiff] testifies that he
received no insulin medication for approximately “five
to seven days.” In the case of [Plaintiff], a Type 2
Diabetic, the failure to receive insulin for such an
extended period
will likely cause
symptoms and
morbidity. These would include dehydration that, over
time,
can
cause
headaches,
dizziness,
increased
urination, higher risk of infection and other negative
symptoms. If untreated, such dehydration can lead to
renal failure and hyperosmolar coma. I have been advised
that [Plaintiff] did suffer from dizziness and
headaches. In my opinion, the failure to receive
medication and resulting dehydration may have likely
caused such symptoms.
Rec. Doc. 76-10 at 2 (emphasis added). Based on these findings,
Defendants

argue

that

Plaintiff’s

symptoms

“might”

have

been

caused by a failure to receive medication. Rec. Doc. 76-1 at 15.
Further, and more significantly, Defendants argue that dizziness
Plaintiff argues that his “alleged injuries are not insignificant and rise
above the necessary threshold. The ‘physical injury’ required by Section 1997
‘must be more than de minimus, but need not be significant.’” Rec. Doc. 77 at
17. (quoting Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999)). However,
the court in Harper was considering a statutory provision, 42 U.S.C. § 1997e(e),
part of the Prison Litigation Reform Act, which 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” (emphasis added). Thus, to claim a
mental or emotional injury, the plaintiff must first show a physical injury
that is more than de minimus. While Plaintiff argues that the second tasing
caused depression, he does not link his supposedly inadequate medical care to
any mental or emotional harm. Thus, the “de minimus” standard under § 1997e(e)
is inapplicable.
15

39

and headaches do not amount to the type of serious injury that
would give rise to an actionable constitutional claim. Id.
In response, Plaintiff argues that he suffered from headaches
and a burning around the top of his head and that Dr. Hendee
acknowledged that the failure to administer insulin could cause
dehydration and other complications, “including the headaches that
[Plaintiff] was experiencing.” Rec. Doc. 77 at 11.
Based on the existing precedent, including Pierce, Tasby,
Wesson, Patterson, Claudet, and Lusk, we agree with Defendants
that general claims of dizziness and headaches are not “serious
injuries” that could give rise to a claim under § 1983. Plus, it
is not insignificant that Plaintiff’s expert merely states that
these injuries could have resulted from the alleged failure of
jail personnel to administer Plaintiff’s insulin medication.
b. CAN PLAINTIFF PROVE DELIBERATE INDIFFERENCE?
Defendants maintain that Plaintiff cannot show deliberate
indifference

because

“his

basic

medical

needs

were

met,”

as

evidenced by the medical records maintained during Plaintiff’s
incarceration. Rec. Doc. 76-1 at 17 (citing Gobert v. Caldwell,
463 F.3d 339, 347 n.24 (5th Cir. 2006) (“Medical records of sick
calls, examinations, disagnoses, and medications may rebut an
inmate’s

allegations

of

deliberate

indifference”)

(quoting

Bannuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995))).
Specifically,

records

show

that
40

Plaintiff’s

medication

was

administered and adjusted,16 he was given two CT scans,17 and
Plaintiff repeatedly refused blood sugar tests. Id. at 17-18
(citing Rec. Doc. 76-15). Further, Defendant relies on affidavits
from Defendants Seal and Haley to show that Plaintiff cannot prove
that a violation resulted from a custom or policy. Id. at 18
(citing Rec. Docs. 76-16, 76-17).
Plaintiff responds that, even though medications for his
diabetes and hypertension were given to jail personnel, along with
instructions for their use, the jail failed to administer these
medications

to

Plaintiff

for

the

first

five

days

of

his

imprisonment (March 28-April 2, 2014). Rec. Doc. 77 at 8-9 (citing
Rec. Doc. 77-11 at 2). Further, the medication was not administered
on seven days throughout April. Id. at 9 (citing Rec. Doc. 77-11
at 2). Plaintiff further claims that some of the jail records were
falsified. Id.; see also Rec. doc. 77-3 at 90-94. Even though they
purport to show that Plaintiff refused to have his blood sugar
levels checked (see Rec. Doc. 77-11 at 3-7), Plaintiff testified
that his levels were never checked during his incarceration and
that “[t]hey did not have a way to check your sugar. Nobody down

As to claims that Plaintiff did not receive blood pressure medication,
Defendants cite to Plaintiff’s medical records and argue that “his blood
pressure concerns were treated adequately. In fact, his medication was adjusted
as necessary.” Rec. Doc. 76-1 at 16 (citing Rec. Docs. 76-11, 76-12).
17 As to claims of a brain injury, Defendants again cite to Plaintiff’s medical
records, which show that he received a CT scan in April of 2014 (see Rec. Doc.
76-13) and another scan on June 19, 2014 (see Rec. Doc. 76-14). Rec. doc. 76-1
at 17. According to Defendants, Plaintiff “was given standard diagnostic
treatment, and nothing of any significance was found.” Id.
16

41

there ever got their sugar checked that I’m aware of” (Rec. Doc.
77-3

at

87).

Further,

former

jail

employee

Tanner

Rochester

testified that “[o]verall medical care at the Jail was sporadic
and poor, particularly with the administration and monitoring of
medication.” Rec. Doc. 77-10 at ¶ 6. He also stated that “it was
an unwritten policy to withhold medicine from certain inmates as
a form of punishment.” Id. at ¶ 7. Further, “[a]part from some
training re:

first response, we received no medical training of

any kind, including any training regarding chronic illnesses such
as diabetes and hypertension.” Id. at ¶ 5. According to Plaintiff,
these “inadequate training policies caused the constitutional
violation, viz., the failure to administer insulin and the failure
to monitor Plaintiff’s blood sugar.” Rec. Doc. 77 at 17.
As to the administrative remedies available to inmates, Mr.
Rochester testified as follows:
I am familiar with the system whereby inmates made
complaints about conditions at the Jail, including
complaints about inadequate medical care. Some of the
complaints involved urgent medical matters. One of my
duties was to collect the ARP’s from the inmates. I
would, then, deliver the ARP’s to my Sergeant. The
majority of the time (I would estimate approximately 9
out of 10 times), the ARP’s at the Jail would be thrown
away. I was disturbed by this practice and let the
Sergeant know this. His response was, “That’s how we do
things here.” I believe that Jim Miller was aware of
this practice.
Rec. Doc. 77-10 at ¶¶ 8-11. Further, Plaintiff testified in his
deposition that his ARP’s were thrown away (see Rec. Doc. 77-3 at

42

111) and that “[t]he warden at one time told me . . . I’ve been
getting your APRs [sic]. I threw them away” (id. at 112).
Defendant
disregarded

argues

because

that

it

is

Rochester’s
not

based

on

affidavit
personal

should

be

knowledge;

specifically, Mr. Rochester was employed by the Sheriff for an
eight-month period in 2013, but Plaintiff was only incarcerated in
2014. Rec. Doc. 84 at 10.
Pursuant to Federal Rule of Civil Procedure 56(c)(4), “[a]n
affidavit . . . used to support or oppose a motion must be made on
personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to
testify on the matters stated.” Mr. Rochester admits that he was
not employed by the jail at the time of Plaintiff’s incarceration.
He therefore lacks personal knowledge of the acts or omissions
alleged

by

Plaintiff.

Further,

even

if

the

affidavit

were

admissible, Mr. Rochester’s statement that he believed Jim Miller
was aware of certain alleged practices could not be considered.
See McWhirter v. AAA Life Ins. Co., 622 F. App’x 364, 366 (5th
Cir. 2015) (“Lila emphasizes Karen’s attestation in her affidavit
that, while she did not witness McWhirter’s fall, she ‘always
believed’ it occurred while he was exiting the vehicle. This
statement is not valid summary-judgment evidence, as it is based
on belief rather than personal knowledge”) (citing FED. R. CIV. P.

43

56(c)(4); Bolen v. Dengel, 340 F.3d 300, 313 (5th Cir.), as amended
(Oct. 1, 2003)).
Nonetheless, without conclusively determining the value of
Mr. Rochester’s affidavit, Plaintiff’s claims must still fail. In
Garcia v. Federal Bureau of Prisons, the prisoner argued that “the
prison medical staff was aware of his need for medications, which
were prescribed but not provided promptly.” 459 F. App’x 458, 458
(5th Cir. 2012). On appeal from the dismissal of his Bivens action
and 42 U.S.C. § 1983 complaint, the Fifth Circuit noted that “[t]he
fact of delay in itself is not sufficient to establish deliberate
indifference”

and

“[t]he

unexplained

delays

in

dispensing

medications constitute negligence at most.” Id. at 459 (citing
Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993); Gobert, 463
F.3d at 351-52 (stating that “a trier of fact might find negligence
in the one week lapse in antibiotic treatment” but concluding that
mere

negligence

could

not

support

a

finding

of

deliberate

indifference); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.
1991) (noting that “[u]nsuccessful medical treatment does not give
rise to a § 1983 cause of action. Nor does ‘[m]ere negligence,
neglect or medical malpractice.’”) (citations omitted)).
Thus, at most, delays or lapses in the administration of
medication

to

indifference.

Plaintiff

amount

Accordingly,

to

negligence,

Plaintiff’s

44

claims

not

deliberate

for

inadequate

medical care (or failure to adequately train jail personnel) must
fail.
IV.

CONCLUSION

For the reasons outlined above,
IT IS ORDERED that Defendants’ motion for summary judgment
(Rec. Doc. 76) is GRANTED IN PART. Plaintiff’s claim of excessive
force survives. There is conflicting testimony as to the timing of
the second tasing. If it occurred after Plaintiff was fully
handcuffed, Plaintiff’s excessive force claim is not barred by
Heck. Further, even if it occurred before Plaintiff was fully
handcuffed, Plaintiff’s excessive force claim may not be barred by
Heck, because a judgment in favor of Plaintiff on those claims
would not necessarily undermine his guilty plea to resisting
arrest. However, Plaintiff fails to (1) allege a proper claim for
unconstitutional

conditions

of

confinement

or

a

sufficiently

serious injury; or (2) submit adequate evidence of deliberate
indifference.

Accordingly,

Plaintiff’s

claims

of

inadequate

medical care are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 8th day of March, 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

45