Granger v. Babin et al

Filing 49

RULING granting in part and denying in part 41 Motion for Summary Judgment. Granger's excessive force claim may proceed to trial. All other claims are DISMISSED. Signed by Judge James J. Brady on 05/27/2014. (CGP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CLEVERN GRANGER
CIVIL ACTION
VERSUS
NO. 12-628-JJB-SCR
CAPTAIN PERCY BABIN, ET AL
RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on a Motion (doc. 41) for Summary Judgment brought by
Defendants, Captain Percy Babin, Master Sergeant Tyrone Kilbourne, Major Douglas
Stroughter, Colonel John Smith, Sergeant Otto Kilbourne, and Warden Steve Radar. Plaintiff,
Clevern Granger, has filed an opposition (doc. 44), to which Defendants have filed a reply (doc.
47). Oral argument is unnecessary. The Court’s jurisdiction exists pursuant to 28 U.S.C. § 1331.
For the reasons stated herein, Defendants’ Motion (doc. 41) for Summary Judgment is
GRANTED in part and DENIED in part.
I.

Background
Clevern Granger (“Granger”) is an inmate incarcerated at the Dixon Correctional Institute

(“DCI”). Doc. 41-2, at ¶ 23. He has been housed at DCI since October 2011. Id. Granger’s suit
arises out of an incident that occurred on November 22, 2011 while Granger was confined to
DCI. Id. at ¶ 1. Granger alleges that he sustained injuries at the hands of several correctional
officers made defendants in this suit. The exact circumstances surrounding this incident, and
whether there was justification for the alleged use of force, are still in dispute as shall be
discussed below. That said, it is undisputed that on November 22, 2011, Granger received
medical care after the incident between himself and prison personnel. Doc. 41-2, at ¶ 22. The
medical records reveal that Granger suffered mild swelling and small bruises. Doc. 41-11, Ex. I,
at 4 & 8. After the incident, Granger filed an Administrative Remedy Procedure (“ARP”)
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requesting relief for the injuries that he suffered during the incident. Doc. 41-15, Ex. M, at 8.
He received both a First and Second Response in which prison administration denied his
requested relief. Id., at 3-7. As a result of the incident, Granger was found guilty of violating
Rule 3 for defiance and Rule 5 for aggravated disobedience, decisions he subsequently appealed.
Doc. 41-4, Ex. B.
As a result of the events of November 22, 2011, Granger filed the present suit seeking
relief pursuant to 42 U.S.C. § 1983 and various Louisiana state laws, rules, and regulations.
Specifically, he asserts the following claims: (1) use of excessive force in violation of the Eighth
Amendment of the U.S. Constitution against several correctional officers; (2) supervisory
liability against Warden Radar; and (3) violation of prison policies under several state law, rules,
and regulations.
Defendants aver that they are entitled to summary judgment on all of Granger’s claims.
They contend that summary judgment should be granted for the following reasons: (1) Granger’s
excessive force claim fails because his minor injuries are insufficient to substantiate an excessive
force claim and he has failed to prove causation; (2) Granger is barred from bringing a
supervisory liability claim because he failed to administratively exhaust this claim; (3) a
violation of prison policies is not actionable under § 1983; and (4) Defendants are entitled to
qualified immunity.
II.

Summary Judgment Standard
Summary judgment is appropriate when “the movant shows that there is no genuine

dispute as to any material fact.” FED. R. CIV. P. 56(a). The party seeking summary judgment
carries the burden of demonstrating that there is an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). When the burden at

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trial rests on the non-moving party, the moving party need only demonstrate that the record lacks
sufficient evidentiary support for the non-moving party’s case. Id. The moving party may do
this by showing that the evidence is insufficient to prove the existence of one or more essential
elements of the non-moving party’s case. Id. A party must support its summary judgment
position by “citing to particular parts of materials in the record” or “showing that the materials
cited do not establish the absence or presence of a genuine dispute.” FED. R. CIV. P. 56(c)(1).
Although the Court considers evidence in a light most favorable to the non-moving party,
the non-moving party must show that there is a genuine issue for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-49 (1986). Conclusory allegations and unsubstantiated assertions
will not satisfy the non-moving party’s burden. Grimes v. Tex. Dep’t of Mental Health, 102 F.3d
137, 139–40 (5th Cir. 1996). Similarly, “[u]nsworn pleadings, memoranda or the like are not, of
course, competent summary judgment evidence.” Larry v. White, 929 F.2d 206, 211 n.12 (5th
Cir. 1991). If, once the non-moving party has been given the opportunity to raise a genuine fact
issue, no reasonable juror could find for the non-moving party, summary judgment will be
granted for the moving party. Celotex, 477 U.S. at 322-23.
III.

Discussion
Before devoting its attention to the claims presented on summary judgment, it is

important to make two things clear. First and foremost, it is important to clearly articulate which
claims have been asserted and/or pursued by Granger and therefore, are presently before the
Court. While the Defendants seek to have claims for liability imposed upon Warden Radar
under a theory of Respondeat Superior, deliberate indifference to medical needs, and retaliation
on the basis of Granger filing an ARP and engaging in the administrative process dismissed,

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Granger avers that he has not asserted these claims. Therefore, they are not before the Court and
will not be addressed.
Second, it is important to identify the evidence presented that the Court did not consider
in making its ruling. Defendants challenge Granger’s reliance upon: (1) the affidavit of Durwin
Abbot; (2) the statement of Gavin Taylor; (3) a summary of Granger’s medical records; and (4)
excerpts of Warden Radar’s deposition testimony from another lawsuit. Defendants assert that
such evidence would be inadmissible at trial and/or is irrelevant to the present proceedings. The
Court agrees. While the Defendants correctly assert that the document marked “Affidavit” of
Durwin Abbot is not a valid affidavit, it could be considered a declaration. Under the current
version of Rule 56 of the Federal Rules of Civil Procedure, a court can consider a declaration at
the summary judgment stage, provided it is “made on personal knowledge, set[s] out facts that
would be admissible in evidence, and show[s] that the . . . declarant is competent to testify on the
matters stated.” FED. R. CIV. P. 56(c)(4). Furthermore, these declarations must comply with 28
U.S.C. § 1746, which requires, inter alia, “If executed within the United States, its territories,
possessions, or commonwealths: ‘I declare (or certify, verify, or state) under penalty of perjury
that the foregoing is true and correct. Executed on (date). (Signature).’” 28 U.S.C. § 1746(2).
Nevertheless, the Court will not consider the declaration of Durwin Abbot as it fails to meet the
declaration requirement by omitting to contain a date.

Furthermore, the content of the

declaration is irrelevant to the Court’s determination. Similarly, the Court will not consider the
statement of Gavin Taylor as it fails to meet the abovementioned requirements. More important,
the date of Taylor’s account is one month prior to the incident at issue here. With regard to
summary of medical records, the Court will not consider an uncertified, unverifiable medical

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record. Finally, the Court will not consider the deposition testimony of Warden Radar as it
concerns a different case than the one presently before the Court.
A. Excessive Force Claim
The Eighth Amendment prohibits prison officials from inflicting cruel and unusual
punishment on prisoners, including using excessive force. Farmer v. Brennan, 511 U.S. 825,
832 (1994). “Whenever prison officials stand accused of using excessive physical force . . ., the
core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6–7
(1992). The Fifth Circuit previously provided the following with regards to excessive force
claims in the prisoner context:
Several factors are relevant in the inquiry whether unnecessary and wanton
infliction of pain was used in violation of a prisoner’s eighth amendment right to
be free from cruel and unusual punishment. These include:
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 officials; and
5. any efforts made to temper the severity of a forceful response.
Baldwin v. Stalder, 137 F.3d 836, 839 (5th Cir. 1998) (citing Hudson, 962 F.2d at 523).
The Defendants’ primary claim is that Granger cannot present sufficient evidence to
prove that excessive force was used on November 22, 2011. Specifically, the Defendants argue
that no excessive force was used, any force used was done so in a reasonable manner to restore
order, and in any event, Granger’s injuries were too minor to support a constitutional violation.
The Court begins by addressing the third argument before turning its attention to the first two
arguments below. While the extent of the injury suffered is relevant to the excessive force
inquiry, it is not dispositive. Hudson, 503 U.S. at 7. Indeed, neither the Fifth Circuit nor the
Supreme Court has endorsed an arbitrary threshold that a plaintiff must satisfy in order to
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maintain an excessive force claim. See Brown v. Lippard, 472 F.3d 384, 386 (5th Cir. 2006)
(relying upon Hudson, 503 U.S. 1) (“This Court has never directly held that injuries must reach
beyond some arbitrary threshold to satisfy an excessive force claim[.]”). Therefore, Granger’s
injuries may substantiate his excessive force claim.
Viewing the excessive force claim in toto, the Defendants and Granger paint two vastly
different portraits of the day’s events. The Defendants characterize the incident as one in which
officers responsibly removed an irate inmate from a heavily trafficked area of the prison to a
quiet place to reduce tension and allow the inmate the opportunity to calm himself down.
According to the Defendants, the incident began when Granger attempted to return his cup to his
dormitory. MSgt. Marcello Aff., Doc. 41-3, p. 1. Granger was met by MSgt. Marcello who gave
him direct orders not to enter into his dorm as the dorms were closed for daily cleaning. Id.
Granger responded to these direct verbal orders by attempting to push past MSgt. Marcello to
enter into the closed dorms. Id. At this point, Granger made physical contact with MSgt.
Marcello. Id. This physical contact prompted MSgt. Marcello to activate his beeper to request
assistance.

Id.

MSgt. Kilbourne, Major Stroughter, Colonel Smith, and Sgt. Kilbourne

responded to the beeper alert. Id. Granger remained agitated and upset when the other officers
arrived. Id. The decision was made to remove Granger from the heavily trafficked bullpen into
the major’s office to give Granger an opportunity to calm down. Major Stroughter Aff., Doc. 415, at 1-2. While the Defendants admit that they placed handcuffs on Granger, they maintain that
they were used after he had calmed down and only to escort him to administrative segregation.
Id. at 2. Defendants also maintain that they used words to calm him down and refute that they
hit, kicked, or punched him. Id. at 2. Granger, by way of his deposition testimony, tells a
different story.

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While Granger agrees that the incident began as he was attempting to enter his dorm to
return his cup, this is the extent of the parties’ agreement concerning the events of that day.
Granger maintains that MSgt. Marcello did not tell him that the dorms were closed for cleaning.
Granger Depo., Doc. 44-9, 15:15-24. Granger also denies that he attempted to push past MSgt.
Marcello or that he actually pushed MSgt. Marcello. Id. at 17:14-16; 18:24-19:1. Instead,
Granger testified that MSgt. Marcello ran in front of him and pushed him. Id. at 19:1-9. At this
time, MSgt. Marcello activated his beeper to request backup.

Id. at 19:11-14.

Granger

acknowledged that the four officers that the Defendants listed responded to the alert, but insists
that Captain (now Major) Babin was also present. Id. at 20:9-14. Granger states that once he
saw Major Stroughter, he calmly attempted to report MSgt. Marcello for pushing him. Id. at
24:14-25:16. Instead of listening, he was placed in restraints and led into the major’s office. Id.
at 26:1-13. Once behind the closed doors of the major’s office, Major Stroughter, Colonel
Smith, MSgt. Kilbourne, Sgt. Kilbourne, and Captain Babin proceeded to repeatedly punch and
kick Granger in his buttocks, head, chest, and side. Id. at 26:1-34:19. The entire incident in the
major’s office lasted approximately a minute. Id. at 36:10-22. After the incident, he was led to
the cellblocks by an officer not made a party to this suit. Id. 39:1-7.
As is readily apparent, the evidence paints two vastly different pictures of the events that
occurred on November 22, 2011.

According to the Defendants, Granger’s insubordination

prompted the reasonable and necessary response of restraining him and removing him to a quiet
location where he could calm down. However, Granger’s deposition testimony shows that he
was brought into a secluded room where he was beaten and kicked by several officers. As
aforementioned, the court looks at the evidence in the light most favorable to the non-moving
party to determine whether there is a genuine issue of material fact. Furthermore, the court will

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not make credibility determinations regarding conflicting evidence at the summary judgment
stage, as that is the province of the jury. See Melancon v. Ascension Parish, 823 F. Supp. 401,
404 n.19 (M.D. La. 1993) (“In a motion for summary judgment, a federal district court is not
called upon to make credibility assessments of conflicting evidence.”). Accordingly, looking at
the evidence in the light most favorable to the plaintiff, this Court finds that there are genuine
issues of material fact as to the events on November 22, 2011, and thus, granting summary
judgment for the Defendants as to the excessive force claim would be improper.
B. Supervisory Liability Claim
The Defendants correctly assert that Granger’s § 1983 claim against Warden Rader for
supervisory liability must be dismissed for Granger’s failure to exhaust this claim. Under the
Prison Reform Litigation Act (“PRLA”), all plaintiff inmates must administratively exhaust their
claim before litigating it in federal court. See Porter v. Nussle, 534 U.S. 516, 532 (2002) (“[W]e
hold that the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether
they involve general circumstances or particular episodes, and whether they allege excessive
force or some other wrong.”). Granger did not file an ARP his supervisory liability claim and
therefore, failed to administratively exhaust this claim. Accordingly, the supervisory liability
claim is dismissed without prejudice.
C. Claim Based Upon a Violation of Prison Policies
Granger has identified La. R.S. 15:829, as well as several prison policies, that he avers
precludes the use of corporal punishment to discipline inmates. The Defendants correctly assert,
that without more, an alleged violation of a state law, regulation or procedure is not cognizable
under § 1983. See Woodard v. Andrus, 419 F.3d 348, 353 (5th Cir. 2005) (“[A] violation of a
state statute alone is not cognizable under § 1983 because § 1983 is only a remedy for violations

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of federal statutory and constitutional rights.”). Accordingly, the claim based upon alleged
violations of prison policies is dismissed.1
D. Qualified Immunity
In their motion, the Defendants argue that they are entitled to qualified immunity for their
actions. Qualified immunity protects government officials “from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
“The Supreme Court has characterized the doctrine as protecting ‘all but the plainly incompetent
or those who knowingly violate the law.’” Cozzo v. Tangipahoa Parish Council, 279 F.3d 273,
284 (5th Cir. 2002) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
Courts must apply “a two-step analysis to determine whether a defendant is entitled to
summary judgment on the basis of qualified immunity.” Freeman v. Gore, 483 F.3d 404, 410
(5th Cir. 2007). First, the court must “determine whether, viewing the summary judgment
evidence in the light most favorable to the plaintiff, the defendant violated the plaintiff’s
constitutional rights.” Id. If so, the court next considers “whether the defendant’s actions were
objectively unreasonable in light of clearly established law at the time of the conduct in
question.” Id. at 411. “The touchstone of this inquiry is whether a reasonable person would
have believed that his conduct conformed to the constitutional standard in light of the
information available to him and the clearly established law.” Glenn v. City of Tyler, 242 F.3d
307, 312 (5th Cir. 2001) (quoting Goodson v. Corpus Christi, 202 F.3d 730, 736 (5th Cir.
2000)). The court “must evaluate an officer’s use of force ‘from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight.’”

1

Poole v. City of

From the Court’s vantage point, it appears as though any claim based upon the state’s prohibition against corporal
punishment would be subsumed into the excessive force claim.

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Shreveport, 691 F.3d 624, 627−28 (5th Cir. 2012) (quoting Graham v. Connor, 490 U.S. 386,
396 (1989)).
Similar to the denial of summary judgment as to the excessive force claim, the Court
must also deny summary judgment with regards to the Defendants’ assertion that they are
entitled to qualified immunity for their actions. In the Court’s view, there are critical differences
between the evidence presented by the parties, with one side presenting evidence that the
officers’ actions were reasonable and justified, and the other side presenting evidence of an
attack on the Plaintiff. Accordingly, there are genuine issues of material fact regarding whether
there initially was a violation of clearly establish constitutional rights, and even if there was,
whether the Defendants’ conduct was objectively reasonable under the circumstances.
Therefore, summary judgment must be denied as to the Defendants’ qualified immunity claim.
IV.

Conclusion
For the foregoing reasons, Defendants’ Motion (doc. 41) for Summary Judgment is

GRANTED in part and DENIED in part. Granger’s excessive force claim may proceed to trial.
All other claims are DISMISSED.
Signed in Baton Rouge, Louisiana, on May 27, 2014.





JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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