Moses v. Mahmoud et al

Filing 60

ORDER AND REASONS granting in part and denying in part 44 Motion for Summary Judgment. ORDERED that the Court's 09/09/2021 Order (R. Doc. 24) remains the same, except that Moses's claims against Richardson are dismissed with prejudice. Signed by Judge Darrel James Papillion on 09/25/2024. (ko)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DAYTREND DENONE MOSES

CIVIL ACTION

VERSUS

NO. 20-2361

MOHAMED MAHMOUD, ET AL.

SECTION: “P” (3)

ORDER AND REASONS
Before the Court is a Motion for Summary Judgment 1 whereby the remaining defendants
in this action, Mohamed Mahmoud (“Mahmoud”) and Darryl Richardson (“Richardson”)
(together, “Defendants”), seek dismissal of the remaining claims in this action. For the reasons
set forth below, the Court GRANTS IN PART and DENIES IN PART Defendants’ Motion for
Summary Judgment.
I.

BACKGROUND
Plaintiff Daytrend DeNone Moses (“Moses”) contends that Mahmoud and Richardson, St.

Charles Parish Sheriff’s Deputies employed at the Nelson Coleman Correctional Center
(“Correctional Center”), are liable to him in their individual capacities pursuant to 28 U.S.C.
§ 1983. 2 Moses seeks compensatory and punitive damages for Eighth Amendment violations
against Mahmoud for deliberate indifference and excessive force and against Richardson for
deliberate indifference and bystander liability. 3
On August 26, 2020, Moses filed this action against five Correctional Center employees
(including Mahmoud and Richardson) arising out of mistreatment Moses alleges began on April
20, 2020, while he was an inmate at the Correctional Center. 4 Many of those claims were

R. Doc. 44.
R. Doc. 1.
3
Id.
4
See id. Moses brought claims against Deputy Garrett Haun (“Haun”), Lieutenant Elizabeth Raiford (“Raiford”), and
Nurse Juanasha Smith (“Smith”) that were previously dismissed as frivolous. See R. Doc. 25.
1
2

previously dismissed. 5 Moses’s claims related to a fall he suffered as Mahmoud escorted him
down a flight of stairs at the Correctional Center. 6 Moses contends that when he asked Mahmoud
where he was going, Mahmoud told him to stop complaining and began to speed up. 7 Moses
alleges that he asked Mahmoud to go slower but that Mahmoud pushed him down the stairs.8
Moses further alleges that, although Richardson was standing nearby, Richardson failed to
intervene when Mahmoud was pushing him down the stairs and that, after the fall, Richardson told
him that something worse would happen if he did not stop complaining. 9
On November 23, 2020, all of the original defendants filed a motion to dismiss; United
States Magistrate Judge Karen Wells Roby thereafter conducted a Spears hearing. 10 On February
10, 2021, Judge Roby promulgated two reports and recommendations: the first reviewed Moses’s
claims for frivolousness and the second ruled on Defendants’ motion to dismiss. 11 The second
Report and Recommendation converted Defendants’ motion to dismiss into a motion for summary
judgment and recommended that many of Moses’s claims be dismissed. 12 Over Defendants’
objections, 13 United States District Judge Jane Milazzo adopted Judge Roby’s reports and

R. Docs. 22 & 23.
Judge Roby’s Partial Report and Recommendation did not decide whether Raiford could be held liable for claims of
intentional indifference, failing to intervene, using verbal slurs and threats, and failing to investigate Moses’s PREA
complaint. See R. Doc. 17 at 18. But in the Report and Recommendation, dated the same day, Judge Roby
recommended that all claims against Raiford be dismissed. R. Doc. 18 at 19, 24, 29. Judge Milazzo adopted the
recommendations and dismissed Moses’s claims against Raiford. R. Docs. 23, 24, & 25.
7
R. Doc. 17 at 4.
8
R. Docs. 1, 17 at 3-4.
9
R. Doc. 17 at 3-4.
10
See generally Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). A Spears hearing allows a federal court to ascertain
the factual and legal basis for a prisoner’s § 1983 claims. Information received in a Spears hearing is considered an
amendment to the complaint or a more definite statement. FED. R. CIV. P. 12(e).
11
R. Docs. 17 & 18.
12
R. Doc. 18 at 11-12.
13
R. Doc. 19 (attaching declarations by Richardson, Haun, Mahmoud, and another prison official).
5
6

2

recommendations without alteration in a September 9, 2021 order; only Moses’s claims against
Mahmoud and Richardson survived. 14
On September 27, 2021, Mahmoud and Richardson filed an Answer and Affirmative
Defenses reasserting qualified immunity,15 and on May 23, 2023, Mahmoud and Richardson filed
the instant motion, effectively requesting reconsideration of Judge Milazzo’s September 9, 2021
order. 16 On June 9, 2023, this action was transferred from Judge Milazzo to this Section. 17
II.

LEGAL STANDARD
Judge Milazzo’s September 9, 2021 Order adopting Judge Roby’s Report and

Recommendation is an interlocutory order because it did not end the action. 18 Federal Rule of
Civil Procedure 54(b) therefore governs this motion for reconsideration of an order that
“adjudicate[d] fewer than all the claims or the rights and liabilities of fewer than all the parties.19
Rule 54(b) permits the district court to “reconsider and reverse its decision for any reason it deems
sufficient.” 20 But “[w]hen there exists no independent reason for reconsideration other than mere
disagreement with a prior order, reconsideration is a waste of judicial time and resources and
should not be granted.” 21
A federal district court “shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
14
Specifically, Judge Milazzo dismissed Moses’s claims against Smith and Haun with prejudice, as frivolous and
otherwise for failure to state a claim for which relief could be granted. See R. Doc. 22. Judge Milazzo also dismissed
with prejudice Moses’s claims against Richardson and Raiford for use of verbal slurs and threats and failure to
investigate his PREA complaint. R. Doc. 22. Judge Milazzo also dismissed with prejudice Moses’s Section 1983
claims against Mahmoud, Richardson, Raiford, Haun, and Smith in their official capacities. See R. Doc. 24. Finally,
Judge Milazzo dismissed Moses’s intentional indifference and bystander liability claims against Raiford. R. Doc. 24.
15
R. Doc. 27.
16
R. Doc. 44.
17
R. Doc. 47.
18
McClendon v. United States, 892 F.3d 775, 781 (5th Cir. 2018).
19
FED. R. CIV. P. 54(b); see, e.g., Muslow v. Bd. of Supervisors, No. 19-11793, 2021 WL 3566302, at *2 (E.D. La.
Aug. 12, 2021).
20
Austin v. Kroger Tex., L.P., 864 F.3d 326, 336 (5th Cir. 2017) (internal quotations and citation omitted).
21
In re Taxotere (Docetaxel) Prods. Liab. Litig., No. 16-cv-17039, 2020 WL 2473772, at *1 (E.D. La. May 13, 2020).

3

law.” 22 A party seeking summary judgment must show there is no genuine dispute of fact by citing
specific parts of the summary judgment materials or by showing that the adverse party cannot
produce admissible evidence to support their alleged facts. 23 A party opposing summary judgment
must set forth specific facts showing there is a genuine issue of material fact that must be resolved
at trial. 24 “[U]nsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and
conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”25
In instances when “opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for summary judgment.” 26 Furthermore,
when there is video evidence provided in the record, a court is “not bound to accept the
nonmovant’s version of the facts if it is contradicted by the video” 27 so long as “‘the video evidence
provides so much clarity that a reasonable jury could not believe’” the contradictory account. 28
While typically the movant bears the initial burden of demonstrating the absence of a
material fact, a good faith assertion of qualified immunity alters the usual summary judgment
burden of proof, shifting the burden to the plaintiff to show that the defendant is not entitled to the
defense. 29

FED. R. CIV. P. 56(a).
FED. R. CIV. P. 56(c).
24
Id.
25
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting CHARLES ALAN WRIGHT, ARTHUR
R. MILLER, & MARY K. KANE, FED. PRAC. & PROC.: CIV. § 2738 (2d ed. 1983)).
26
Scott v. Harris, 550 U.S. 372, 380 (2007).
27
Crane v. City of Arlington, 50 F.4th 453, 461-62 (5th Cir. 2022) (citing Harris v. Serpas, 745 F.3d 767, 771 (5th
Cir. 2014)).
28
Id. at 462 (quoting Darden v. City of Fort Worth, 880 F.3d 722, 730 (5th Cir. 2018)).
29
See Joseph on behalf of Est. of Joseph v. Bartlett, 981 F.3d 319, 329–30 (5th Cir. 2020) (quoting Orr v. Copeland,
844 F.3d 484, 490 (5th Cir. 2016)).
22
23

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III.

LAW AND ANALYSIS
As a preliminary matter, Defendants correctly note that Moses does not explicitly cite any

evidence in the record in opposing the instant motion. 30 But, reading Moses’s brief liberally, 31
Moses relies on his Spears hearing testimony to oppose the instant motion. Moses’s Spears
testimony, made under oath, qualifies as competent evidence for consideration at this stage of
litigation because it is based on his personal knowledge and is neither conclusory nor vague. 32
A. Moses’s Section 1983 deliberate indifference claims.
Section 1983 “enables persons who have ‘been depriv[ed] of any rights, privileges, or
immunities secured by the Constitution and laws’ of the United States by the actions of a person
or entity operating under color of state law to seek redress from those state actors responsible for
the deprivations.” 33 Deliberate indifference that causes unnecessary and wanton pain constitutes
cruel and unusual punishment proscribed by the Eighth Amendment. 34 Moses claims that both
Mahmoud and Richardson acted with deliberate indifference when Moses fell to the ground as
Mahmoud escorted him down the stairs.
To prove deliberate indifference, a plaintiff must show that (1) “he is incarcerated under
conditions posing a substantial risk of serious harm,” and (2) “the prison official’s state of mind is
one of deliberate indifference to the prisoner’s health or safety.” 35 The first component of this test
is evaluated “contextually,” considering “whether society considers the risk . . . to be so grave that

R. Doc. 50 at 3-4.
See Leeper v. Travis Cnty., 1:16-CV-819-RP, 2018 WL 5892377, at *3 n.5 (W.D. Tex. Nov. 9, 2018) (citing Haines
v. Kerner, 404 U.S. 519, 520 (1972)).
32
R. Doc. 18 at 5-7 (describing Moses’s detailed Spears testimony regarding the incident); see also Guzman v. Allstate
Assurance Co., 18 F.4th 157, 161 (5th Cir. 2021). While Moses did not include himself on his witness list, the Court
finds good cause to permit Moses to call himself as a witness. See R. Doc. 45 at 2; Leeper, 2018 WL 5892377, at *3
n.5. And because Defendants included themselves and Haun on their witness list, Moses’s Spears hearing testimony
and the declarations of Mahmoud, Richardson, and Haun are proper summary judgment evidence.
33
Orr, 844 F.3d at 491–92 (citing 42 U.S.C. § 1983).
34
Helling v. McKinney, 509 U.S. 25, 33-34 (1993).
35
Williams v. Banks, 956 F.3d 808, 811 (5th Cir. 2020) (internal quotations omitted).
30
31

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it violates contemporary standards of decency to expose anyone unwillingly to such a risk.”36
Physical assaults qualify as a serious harm. 37 As to the second component, deliberate indifference
requires a showing of more than negligence or even gross negligence. 38 Rather, “[a] deliberately
indifferent state of mind requires that ‘the official knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw the inference.” 39 “[T]he
failure to alleviate a significant risk that [the official] should have perceived but did not is
insufficient to show deliberate indifference.” 40
i.

Moses’s deliberate indifference claim against Mahmoud.

Moses alleges that, as Mahmoud escorted him down the stairs—Moses in handcuffs and
Mahmoud holding his right bicep—he asked Mahmoud “why and where” he was being taken. 41
Mahmoud then allegedly told Moses “to shut up and began to accelerate [Moses’s] descent
essential[ly] pushing [Moses] down.” 42 In Moses’s Spears hearing testimony, he recounted that
“when [he] asked [Mahmoud] to slow down, Deputy Mahmoud pushed him faster and told him to
stop complaining.” 43 Moses further stated that “he then fell to the floor because [Mahmoud] was
pushing him” and that he “injured his shoulder and knee and twisted his back.” 44 There is no
question that Moses faced a substantial risk of serious harm when descending the staircase while
handcuffed and unable to brace himself from a fall. 45

Horton v. Cockrell, 70 F.3d 397, 401 (5th Cir. 1995) (internal quotations and citations omitted).
Id.
38
Est. of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005).
39
Williams, 956 F.3d at 811 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
40
Domino v. Tex. Dep’t of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001).
41
R. Doc. 1 at ¶¶ 13-14.
42
Id.
43
R. Doc. 18 at 5.
44
Id.
45
R. Doc. 19-5 (Ex. D-1).
36
37

6

Moses’s testimony contradicts the sworn declarations of Richardson, Haun, and Mahmoud.
Richardson and Haun both attested that they did not hear Moses speak to Mahmoud. 46 Rather,
Mahmoud and Haun attested that Mahmoud told Moses to slow down. 47 Mahmoud also attested
that he “ordered Offender Moses to slow down” because he thought Moses’s increased rate of
speed “hindered [his] control over the escort and increased [Moses’s] risk of injury.” 48 Like
Moses’s Spears testimony, those declarations—all submitted by defendants in this action before
any claims were dismissed 49—constitute self-interested statements. But self-interested statements
should not be discounted on that basis alone, and it is inappropriate for the Court to evaluate these
witnesses’ credibility at this stage. 50 These contradictory, self-interested sworn statements are,
therefore, sufficient to create a genuine issue of material fact. 51
The video of the incident fails to clearly support either Moses’s narrative or Mahmoud’s. 52
The video contains no audio; the camera angle obscures Mahmoud’s arm behind Moses’s body;
and all the individuals that appear in it—including Moses, Richardson, and Mahmoud—are
wearing masks that hide their facial movements and expressions. 53 Crediting Moses’s Spears
testimony—which, at this stage, the Court must 54—a reasonable jury could find Mahmoud
deliberately ignored Moses’s pleas, or even increased the speed of their descent.

R. Doc. 19-1 at ¶ 8; R. Doc. 19-2 at ¶¶ 8, 11.
R. Doc. 19-2 at ¶ 8; R. Doc. 19-3 at ¶ 7.
48
R. Doc. 19-3 at ¶ 7.
49
Compare R. Docs. 19-1, 19-2, and 19-3 (February 23, 2021 Declarations of Richardson, Haun, and Mahmoud) with
R. Doc. 25 (September 9, 2021 Order dismissing all claims against Haun and certain claims against Richardson and
Mahmoud).
50
Guzman, 18 F.4th at 160-61.
51
Id. (citing Bargher v. White, 928 F.3d 439, 445 (5th Cir. 2019)).
52
Though the video has not been verified for its evidentiary value, it may still support or dispute a fact on summary
judgment. Cobb v. James Constr. Grp., No. 517CV208-CMC, 2020 WL 3516227, at *6 (E.D. Tex. Jan. 13, 2020).
53
R. Doc. 19-5 (Ex. D-1).
54
Falcon v. Holly, 480 F. App’x 325, 326 (5th Cir. 2012).
46
47

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Thus, summary judgment on this claim is inappropriate because genuine disputes of
material fact remain—namely, whether Moses asked Mahmoud to slow down during their descent
and whether Mahmoud ignored Moses’s request.
ii.

Moses’s deliberate indifference claim against Richardson

Moses alleges Richardson watched him descend the stairs and heard him ask Mahmoud to
slow down but took no action to prevent the fall. 55 As discussed above, Moses faced a substantial
risk of serious harm while descending the stairs.
Moses argues that because Richardson heard, if not saw, the incident, Richardson had a
duty under the Eighth Amendment to prevent the fall. 56 As discussed above, Moses’s Spears
hearing testimony and the declarations of Richardson, Haun, and Mahmoud present conflicting
accounts of the incident. Moses testified that he asked Mahmoud to slow down. 57 On the other
hand, Haun and Mahmoud attested Mahmoud told Moses to slow down on the staircase.58
Meanwhile, Richardson attested he did not hear Moses or Mahmoud say a word to each other. 59
While Moses’s Spears hearing testimony provides sufficient evidence that, if accepted as
true, Mahmoud heard Moses ask him to slow down, “‘the failure to alleviate a significant risk that
[the official] should have perceived, but did not’ is insufficient to show deliberate indifference.” 60
The video of the incident comports with Richardson’s declaration, particularly his statement that
he reacted to a call from another prisoner.61 Nine seconds into the video, Richardson turns from
facing the middle of the room towards a wall of cells, as if reacting to someone calling for

R. Doc. 1 at ¶¶ 14–15; R. Doc. 18 at 5.
R. Doc. 18 at 25.
57
Id. at 5.
58
R. Doc. 19-2 at ¶ 8; R. Doc. 19-3 at ¶ 7.
59
R. Doc. 19-1 at ¶ 8.
60
Domino, 239 F.3d at 756 (quoting Farmer, 511 U.S. at 838).
61
R. Doc. 19-1 at ¶ 6.
55
56

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his attention.62

While turning, Richardson momentarily faces the staircase as Moses and

Mahmoud descend.63 Richardson only turns back toward Moses and Mahmoud after Moses falls
at the foot of the staircase. 64 Despite turning to respond to another prisoner’s call, Richardson
did not direct his attention to Moses and Mahmoud until after Moses fell to the ground.
The video compels the conclusion that, even if Moses asked Mahmoud to slow down,
Richardson was not alerted to the danger of the situation and, therefore, lacked the knowledge
required to sustain a claim of deliberate indifference. 65 Reaching this conclusion does not require
finding that Moses did not ask Mahmoud to slow down, only that Moses cannot rebut the video
evidence showing Richardson react to another inmate’s call but not his. For these reasons, this
Court respectfully disagrees with Judge Roby’s Report and Recommendation and Judge Milazzo’s
Order adopting the same, 66 and finds summary judgment in Richardson’s favor is appropriate as
to this claim.
B. Moses’s excessive force claim against Mahmoud
To prevail on a claim of excessive force, a plaintiff must prove two components, one
subjective and the other objective. First, the plaintiff must show “the defendant acted maliciously
and sadistically in an ‘unnecessary and wanton infliction of pain’” 67 in light of (1) the extent of
the injury suffered; (2) the need for the application of force; (3) the relationship between the need
and the amount of force used; (4) the threat reasonably perceived by the responsible official; and

R. Doc. 19-5 (Ex. D-1).
Id.
64
Id.
65
Domino, 239 F.3d at 756.
66
R. Docs. 18 & 24.
67
Mosley v. White, 464 F. App’x 206, 211-12 (5th Cir. 2010) (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992)).
62
63

9

(5) any efforts to reduce the severity of a forceful response. 68 Next, the plaintiff must show the
use of physical force was objectively “harmful enough” to constitute a constitutional violation.69
Moses testified Mahmoud sped up as they descended the staircase, which, if credited by a
reasonable jury, would constitute an “unnecessary and wanton infliction of pain” in causing
injuries that Moses continues to suffer from today. 70 This use of force would be all the more
egregious considering Moses was handcuffed and wearing shower slippers, and presented no threat
to Mahmoud. 71 As discussed above, the injuries suffered by Moses qualify as objectively harmful
enough to support an Eighth Amendment claim.
Because genuine disputes of material fact remain outstanding, summary judgment is
inappropriate as to this claim.
C. Moses’s bystander liability claim against Richardson
Under a theory of bystander liability, an officer may be liable to an individual if the officer
(1) knows that another officer is violating the individual’s constitutional rights; (2) has a
reasonable opportunity to prevent the harm; and (3) chooses not to act. 72 In determining liability,
courts frequently consider whether the officer “acquiesced” to the violation. 73
As discussed above, even if Moses did ask Mahmoud to slow down, Moses cannot
overcome the video evidence indicating Richardson did not notice. 74 As Moses’s claim is
premised on Richardson’s failure to intervene in the fall, Moses cannot show that Richardson knew

Baldwin v. Stalder, 137 F.3d 836, 839 (5th Cir. 1998).
Hudson, 503 U.S. at 8.
70
R. Doc. 18 at 5-6.
71
R. Doc. 19-5 (Ex. D-1).
72
Whitley v. Hanna, 726 F.3d 631, 646-47 (5th Cir. 2013).
73
Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995).
74
As discussed above, this Court’s disagreement with Judge Roby’s Report and Recommendation, R. Doc. 18, does
not require concluding that Moses did not ask Mahmoud to slow down. This Court only decides that Moses has failed
to rebut the video evidence showing that Richardson was not alerted to Moses’s call. R. Doc. 19-5 (Ex. D-1).
68
69

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that his rights were being violated or that he chose not to intervene. Thus, Moses’s bystander claim
against Richardson also fails.
D. Defendants’ qualified immunity defense
In the instant motion, Defendants argue that while “Mr. Moses will not be able to
overcome” the bar of qualified immunity at trial, “for the purpose of this motion on the merit of
his claim, Mr. Moses can present no genuine issue of material fact that he can prevail on his
claims.” 75 In order to defeat qualified immunity, a plaintiff must show (1) that the defendant
violated a statutory or constitutional right, and (2) that the right was “clearly established” as the
time of the challenged conduct. 76 To meet this burden, a plaintiff must identify specific evidence
in the summary judgment record demonstrating that “there is a genuine dispute of material fact
and that a jury could return a verdict entitling the plaintiff to relief for a constitutional injury.” 77
As discussed above, Moses’s Spears hearing testimony provides sufficient evidence for a
jury to return a verdict for Moses on his deliberate indifference and excessive force claims against
Mahmoud. Thus, Mahmoud is not entitled to qualified immunity.
IV.

CONCLUSION
For the foregoing reasons, Defendants’ motion is GRANTED IN PART and DENIED IN

PART.
Accordingly, IT IS ORDERED that the Court’s September 9, 2021 Order (R. Doc. 24)
remains the same, except that Moses’s claims against Richardson are DISMISSED with prejudice.
New Orleans, Louisiana, this 25th day of September 2024.
_________________________________________
DARREL JAMES PAPILLION
UNITED STATES DISTRICT JUDGE
R. Doc. 44-1 at 2 n.2.
Waller v. Hanlon, 922 F.3d 590, 599 (5th Cir. 2019).
77
Est. of Joseph, 981 F.3d at 330.
75
76

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