Hill v. Kilbourne et al

Filing 86

RULING denying 22 and 41 Motion for Summary Judgment. The claims against the misnamed Defendant, Capt. Jerry Babin, are dismissed pursuant to Rule 4(m), Fed. R. Civ. P., for failure to serve. Signed by Judge Shelly D. Dick on 06/23/2014. (CGP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

MARCUS D. HILL (#310825)
CIVIL ACTION
VERSUS
NO. 11-778-SDD-SCR
TYRONE KILBOURNE, ET AL.

RULING
The Court has carefully considered the Complaint1, the record, the law applicable
to this action, and the Report and Recommendation2 of United States Magistrate Judge
Stephen C. Riedlinger dated May 8, 2014. Plaintiff has filed an Objection3 which the
Court has also considered.
The procedural posture and history are important to this Court’s Ruling.
Summary Judgment motions were filed in May and June of 2012.4

The Plaintiff,

proceeding pro se, filed an Objection5 to the first Motion for Summary Judgment6 on
May 30, 2012. On October 9, 2012, counsel enrolled to represent the Plaintiff7. Shortly
thereafter, on October 16, 2012, counsel for the Plaintiff moved to continue8 the pending
Summary Judgment to allow for additional discovery.

The Court granted Plaintiff’s

motion for extension of the deadline to respond and/or oppose summary judgment by
allowing leave until December 10, 2012 to obtain opposing affidavits and until
1

Rec. Doc. 1.
Rec. Doc. 72.
3
Rec. Doc. 76.
4
Rec. Docs. 22 and 41.
5
Rec. Doc. 29.
6
Rec. Doc. 22.
7
Rec. Doc. 45.
8
Rec. Doc. 48.
2

1

December 24, 2012 to file an opposition to summary judgment.9 Plaintiff’s request to
extend the discovery deadlines was denied.10 Plaintiff moved the Court to reconsider its
extension of summary judgment deadlines and permit the Plaintiff even more time to
submit “Declarations” and re-urged extension of the discovery deadline, which the Court
denied.11 Plaintiff filed a Response in Opposition12 to summary judgment on December
20, 2012 consisting of a memorandum only. No countervailing affidavits, declarations,
or statement of contested facts was filed by Plaintiff. In denying the Plaintiff’s motion for
additional time to seek countervailing declarations/affidavits, the Magistrate Judge
found:
Instead of filing an objection to the ruling, i.e. appealing the ruling to the district
judge, as provided by Rule 72(a), Fed.R.Civ.P. the plaintiff filed this motion
pursuant to Rules 59 and 60, Fed.R.Civ.P. However, as the defendants correctly
noted, neither rule applies since a final judgment has not been issued.
Plaintiff’s motion is essentially a do-over of his previous motion. It presents no
arguments which were not made and considered in connection with the previous
motion, nor any new arguments which could not have been made in the previous
motion.
On

May

8,

2014,

the

Magistrate

Judge

rendered

a

Report

Recommendation13 that the Defendants’ summary judgments be granted.

and

After the

adverse Report and Recommendation, Plaintiff moved to file the Plaintiff’s
“Declaration”14 presumably as a countervailing summary judgment affidavit. On the
same day, Plaintiff filed objections15 to the Magistrate Judge’s Report and
Recommendation.
9

Rec. Doc. 55.
Id.
11
Rec. Docs. 58 and 70.
12
Rec. Doc. 62.
13
Rec. Doc. 72.
14
Rec. Doc. 73.
15
Rec. Doc. 76.
10

2

Plaintiff’s counsel was notified by the Clerk that the filings seeking to late file a
“Declaration” were deficient. The Clerk provided counsel specific filing instructions to
resolve the deficiencies. Despite great efforts by the Clerk’s office to assist counsel in
filing, the filing deficiencies remained. The Court struck the attempted late filings by
Order16 dated June 19, 2014.
On June 23, 2014, the Court granted Plaintiff leave to file a declaration verifying
the allegations of his Complaints and to file a sworn declaration of an inmate witness,
David Cooper.
On summary judgment, factual allegations set forth in a verified complaint may
be treated the same as when they are contained in an affidavit. Hart v. Hairston, 343
F.3d 762, 765 (5th Cir. 2003), citing, Huckabay v. Moore, 142 F.3d 233, 240 n. 6 (5th
Cir.1998); King v. Dogan, 31 F.3d 344, 346 (5th Cir.1994); 28 U.S.C. § 1746; cited with
approval, Stewart v. Guzman, 555 F. App'x 425, 432 (5th Cir. 2014). Considering the
verified allegations of the Plaintiff’s Complaints and the countervailing witness
declaration, there are material issues of fact as to the events that form the basis of the
Plaintiff’s claims. Hence, summary judgment must be denied.
The Court notes that when written, the Magistrate Judge’s Report and
Recommendation was correct. There was no countervailing summary judgment
evidence in opposition to the Defendants’ Rule 56 Motion. However, the record has
since been supplemented (with leave of Court) with verified and sworn factual
attestations, making summary judgment inappropriate at this time. The Parties present

16

Rec. Doc. 80

3

conflicting accounts of what transpired between inmate Hill and the Defendants.
Accordingly, summary judgment is DENIED.17
For the reason that the record, having been recently supplemented, reveals that
material issues of fact are in dispute, the Court declines to adopt the Report and
Recommendation of the Magistrate Judge.
IT IS HEREBY ORDERED that the Defendant’s Motion for Summary Judgment18
filed on behalf of Msgt. Tyrone Kilbourne and the Defendants’ Motion for Summary
Judgment19 filed on behalf of Col. John Smith, Maj. Doug Stroughter, and Capt. Percy
Babin are DENIED; and
IT IS FURTHER ORDERED that the claims against the misnamed Defendant,
Capt. Jerry Babin, are dismissed pursuant to Rule 4(m), Fed.R.Civ.P., for failure to
serve.
Signed in Baton Rouge, Louisiana, on June 23, 2014.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

17

Counsel’s blatant ignorance of the Local Rules of Court and the Federal Rules of Civil Procedure as
they relate to these proceeding will not be tolerated and counsel is admonished to consult all applicable
rules of procedure and conduct before filing any further pleadings in this matter.
18
Rec. Doc. 22.
19
Rec. Doc. 41.

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