Clay v. Ouber et al

Filing 69

RULING granting in part and denying in part 65 Motion for Summary Judgment.. the Court finds in the alternative that Jimmy Smith is entitled to the defense of qualified immunity, and his motion for summary judgment should be granted. As to the other named defendants in this matter, the Court finds that there are genuine issues of material fact in dispute such that summary judgment is not proper. Therefore, the motion for summary judgment by the remaining defendants shall be denied, and the jury trial scheduled to begin on June 27, 2011, shall proceed.Signed by Judge Frank J. Polozola on 06/27/11. (PAH) Modified on 6/27/2011 to edi text(PAH).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

DERICK CLAY (#441751)
CIVIL ACTION
VERSUS
NO.

08-748-FJP-SCR

CHAD OUBRE, ET AL

RULING
This motion is before the Court on the defendants’ motion for
summary judgment.1
motion.2

Plaintiff has filed an opposition to the

For the reasons which follow, the Court finds that the

motion should be granted in part and denied in part.
Federal law requires plaintiff to exhaust administrative
remedies available to him at the prison prior to filing suit.3
failed to do so with respect to defendant Jimmy Smith.

He

The Fifth

Circuit has held that exhaustion must be accomplished by fully and
properly complying with applicable prison grievance procedures
before filing a suit related to prison conditions.4

1

Rec. Doc. No. 65.

2

Rec. Doc. No. 68.

3

42 U.S.C. § 1997.

4

Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004); Woodford v.
Ngo, 548 U.S. 81, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006).
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The record reflects that plaintiff made no allegations or
complaints against Jimmy Smith or mentioned his alleged involvement
in the incident in the record of the prison administrative remedy
procedure.

Furthermore,

in

his

opposition

to

this

motion,

plaintiff did not present any argument regarding the requirement to
exhaust administrative remedies as to this defendant.

Thus, the

Court finds that Jimmy Smith should be dismissed as a defendant in
this matter.
In the alternative, the Court finds that Jimmy Smith is
entitled to qualified immunity and summary judgment is proper in
his

favor

under

the

facts

of

this

case.

Plaintiff’s

only

allegation against Smith is an alleged remark made to the plaintiff
which plaintiff believed to be threatening.

The law is clear that

even if Smith made this remark to the plaintiff,

Smith would be

entitled

remark.

to

qualified

immunity

for

such

a

The

jurisprudence of the Fifth Circuit makes it clear that verbal abuse
or even threats do not give rise to a claim cognizable under 42
U.S.C. § 1983.5

Thus, even if the remark was made, it does not

rise to the level of a constitutional violation under Section 1983.

5

See Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir.
2002)(“Claims of verbal abuse are not actionable under § 1983
...”); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997)(“It
is clear that verbal abuse by a prison guard does not give rise to
a cause of action under § 1983.”); Bender v. Brumley, 1 F.3d 271,
274 n. 4 (5th Cir. 1993)(“Mere allegations of verbal abuse do not
present actionable claims under § 1983.”); see also Westbrook v.
Treon, 78 Fed. Appx. 970, 972 (5th Cir. 2003)(“Verbal threats do not
rise to the level of a constitutional violation.”).
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2

In the absence of a constitutional violation, there is no claim.
Further, it could not have been clear to Smith that the making such
a remark was unlawful.
It is true that a statement could be evidence of deliberate
indifference to the actions of others.

To act with deliberate

indifference, an official must be aware of facts from which the
indifference could be drawn that a substantial risk of harm exists,
and must also draw the inference.6
The Court finds from a review of the record in this case that
plaintiff has presented insufficient summary judgment type evidence
to defeat Smith’s motion.

There is no proof in the record that

Smith was aware of any particular details of the incident which
occurred before or after plaintiff’s removal from the cell.

There

is no evidence that Smith knew or should have known that plaintiff
would be subjected to any particular risk of harm which Smith could
or should have prevented.

In fact, plaintiff does not allege that

he advised Smith of the alleged excessive force or asked for
protection.
Therefore, the Court finds in the alternative that Jimmy Smith
is entitled to the defense of qualified immunity, and his motion
for summary judgment should be granted.
As to the other named defendants in this matter, the Court
finds that there are genuine issues of material fact in dispute

6

Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995).

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such that summary judgment is not proper.

Therefore, the motion

for summary judgment by the remaining defendants shall be denied,
and the jury trial scheduled to begin on June 27, 2011, shall
proceed.
IT IS SO ORDERED.
Baton Rouge, Louisiana, June 27, 2011.

S
FRANK J. POLOZOLA

MIDDLE DISTRICT OF LOUISIANA

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