Pea v. Cain et al

Filing 27

REPORT AND RECOMMENDATIONS regarding 1 Complaint filed by Donald Pea. It is recommended that the Court decline the exercise of supplemental jurisdiction over the plaintiffs state law claims. It is further recommended that the Motion for Summary Judgment of defendant Greg Templeton (Rec. Doc. 22) be granted in part, dismissing all of the plaintiffs claims asserted against the defendant except the plaintiffs claim for monetary damages asserted against the defendant in the defendants in dividual capacity arising out of the alleged use of excessive force on 09/11/2011, and that this matter be referred back to the Magistrate Judge for further proceedings. Objections to R&R due by 1/21/2014. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 01/02/2014. (CGP) Modified on 1/2/2014 to edit text(CGP).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

DONALD PEA (#457171)

CIVIL ACTION

VERSUS
N. BURL CAIN, WARDEN, ET AL.

NO. 12-0779-SDD-RLB

NOTICE
Please take notice that the attached Magistrate Judge’s Report has been filed with the
Clerk of the United States District Court.
In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served
with the attached Report to file written objections to the proposed findings of fact, conclusions of
law and recommendations therein. Failure to file written objections to the proposed findings,
conclusions, and recommendations within 14 days after being served will bar you, except upon
grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and
legal conclusions of the Magistrate Judge which have been accepted by the District Court.
ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE
WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE’S REPORT.
Signed in Baton Rouge, Louisiana, on January 2, 2014.

s

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

DONALD PEA (#457171)

CIVIL ACTION

VERSUS
N. BURL CAIN, WARDEN, ET AL.

NO. 12-0779-SDD-RLB

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court on the Motion for Summary Judgment of the
remaining defendant in this case, Lt. Greg Templeton (Rec. Doc. 22). This motion is opposed.
The pro se plaintiff, an inmate confined at the Louisiana State Penitentiary (“LSP”),
Angola, Louisiana, filed this action pursuant to 42 U.S.C. § 1983 against Warden N. Burl Cain,
Ass’t Warden Joe Lamartiniere, Ass’t Warden Darrel Vannoy, Ass’t Warden Troy Poret, Sgt. R.
Frye, Major Whittaker, Capt. Feasel (also referred to as “Feisel,” “Fease” and “Feasei”), Sgt.
Geoffery Crosby (identified as Geoffery “Crasby” in the Complaint) and Lt. Greg Templeton,
complaining that his constitutional rights were violated on September 11, 2011, when defendants
Templeton, Frye and Crosby subjected him to excessive force. In addition, the plaintiff asserted
that the alleged use of excessive force was in retaliation for his prior commission of a rule
violation and that the defendants compelled him to take a hot shower after the incident, thereby
worsening the effect of the chemical irritant which had been used against him. Finally, the
plaintiff complained that defendants Cain, Poret and Whittaker failed to take remedial action
after being informed of the alleged wrongful conduct of the other defendants. Pursuant to Earlier
Magistrate Judge’s Report in this case, approved by the District Judge on July 10, 2013 (Rec.
Docs. 17 and 21), the plaintiff’s claims asserted against all defendants except Lt. Greg

Templeton have been dismissed.
Defendant Greg Templeton now moves for summary judgment, relying upon the
pleadings, a Statement of Undisputed Facts, a certified copy of the Chemical Agent Logbook for
the date September 11, 2011, a certified copy of LSP Directive No. 09.002 (relative to “Use of
Force”), certified copies of four (4) disciplinary reports issued against the plaintiff on September
11, 2011 (charging the plaintiff with one count of Theft, three counts of Aggravated
Disobedience and three counts of Defiance), a certified copy of an Unusual Occurrence Report
dated September 11, 2011 (prepared by defendant Templeton), certified copies of the plaintiff’s
pertinent disciplinary records and medical records, and the affidavits of Geoffery Crosby, Dr.
Jason Collins and defendant Greg Templeton.
Pursuant to well-established legal principles, summary judgment is appropriate where
there is no genuine disputed issue as to any material fact, and the moving party is entitled to
judgment as a matter of law. Rule 56, Federal Rules of Civil Procedure. Celotex Corp. v.
Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). A party
moving for summary judgment must inform the Court of the basis for the motion and identify
those portions of the pleadings, depositions, answers to interrogatories and admissions on file,
together with affidavits, if any, that show that there is no such genuine issue of material fact.
Celotex Corporation v. Catrett, supra, 477 U.S. at 323. If the moving party carries its burden of
proof under Rule 56, the opposing party must direct the Court’s attention to specific evidence in
the record which demonstrates that the non-moving party can satisfy a reasonable jury that it is
entitled to a verdict in its favor. Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 248. This
burden is not satisfied by some metaphysical doubt as to alleged material facts, by unsworn and
unsubstantiated assertions, by conclusory allegations, or by a mere scintilla of evidence. Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). Rather, Rule 56 mandates that summary
judgment be entered against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case and on which that party will bear the burden
of proof at trial. Celotex Corporation v. Catrett, supra, 477 U.S. at 323. Summary judgment is
appropriate in any case where the evidence is so weak or tenuous on essential facts that the
evidence could not support a judgment in favor of the non-moving party. Little v. Liquid Air
Corp., supra, 37 F.3d at 1075. In resolving a motion for summary judgment, the Court must
review the facts and inferences in the light most favorable to the non-moving party, and the
Court may not evaluate the credibility of witnesses, weigh the evidence, or resolve factual
disputes. International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991), cert.
denied, 502 U.S. 1059 (1992).
As pertinent to the claim remaining before the Court, the plaintiff alleges that on the
morning of September 11, 2011, he was involved in a confrontation with defendants Templeton,
Frye and Crosby, during which these defendants subjected him to irritant spray notwithstanding
that he was in full restraints and was providing no provocation or justification for the use of
force. The plaintiff further asserts that this conduct was undertaken in retaliation for his having
previously committed a rule infraction and that the use of irritant spray was inappropriate
inasmuch as he suffers with asthma. In the plaintiff’s memorandum in opposition to the Motion
for Summary Judgment (Rec. Doc. 26), he has provided additional factual information relative to
these claims. Specifically, the plaintiff alleges that he was approached by defendant Templeton
on the afternoon of the referenced date and was falsely accused of having stolen some chicken
from the food cart in his housing unit. As a result, defendant Templeton placed the plaintiff in
behind-the-back restraints and escorted the plaintiff to an administrative segregation tier to await

a hearing on the disciplinary charge. The plaintiff alleges that, instead of placing him in a
regular cell on the segregation tier, defendant Templeton placed the plaintiff in the shower cell
on the tier. The plaintiff contends, contrary to the assertions of defendant Templeton, that the
defendant did not remove the plaintiff’s restraints upon placing him in the shower cell. The
plaintiff also disputes the defendant’s assertion (1) that the plaintiff thereafter began to cause a
loud disturbance on the tier, yelling and “racking the bars” of the shower cell and disobeying
repeated orders to cease the disturbance and come to the bars of the cell to be restrained, and (2)
that the defendant then utilized only a brief one-second application of chemical irritant spray in
order to obtain the plaintiff’s compliance. Instead, the plaintiff asserts that defendant Templeton,
without justification and without provocation, sprayed a large amount of chemical agent into the
plaintiff’s cell. The plaintiff further argues that the defendant’s assertions to the contrary are not
credible because, in fact, the plaintiff was physically unable to rack the bars because his hands
were still in behind-the-back restraints, and he could not have disobeyed orders to come to the
bars of the cell to be restrained because he was already in restraints. In addition, the plaintiff
asserts that the amount of chemical agent utilized by the defendant was much more than a onesecond application. Instead, the plaintiff asserts that eight (8) grams of chemical agent was
utilized by the defendant and that this quantity equates to more than a one-second burst. The
plaintiff also asserts that the defendant utilized the entirety of a separate “personal” can of
chemical agent which the defendant had in his possession.1

1. In his Complaint and supporting pleadings, the plaintiff alleges that two other
defendants joined Lt. Templeton in spraying chemical irritant into the plaintiff’s cell on the
referenced date, Sgt. R. Frye and Sgt. Geoffery Crosby. These defendants have been dismissed
from this proceeding, however, with defendant Frye having been dismissed because of the
plaintiff’s failure to timely serve the defendant, and with defendant Crosby having been
dismissed because of the plaintiff’s failure to exhaust administrative remedies relative to that
defendant. See Rec. Doc. 17.

In addition to the foregoing, the Court notes that the plaintiff’s Opposition to the
defendant’s Motion for Summary Judgment (Rec. Doc. 26) provides additional factual
information which seemingly contradicts certain of the assertions made in his original
Complaint. For example, whereas the plaintiff alleged in the Complaint that the defendant
compelled him to take a hot shower after the referenced incident, the plaintiff asserts in his
Opposition that the defendant refused to allow him to take a shower until the next day. In
addition, the plaintiff alleged in the Complaint that the defendant’s action were motivated by
retaliatory animus in response to the plaintiff’s “alleged previous rule violation,” the plaintiff
states in his Opposition that the defendant was retaliating against the plaintiff for having
assaulted a co-inmate several weeks previously, which co-inmate the defendant utilized as a
“snitch” or confidential informant at the prison. Finally, the plaintiff’s Opposition asserts a new
claim that was not included in either the original Complaint or in the plaintiff’s pertinent
administrative grievance, specifically that there was a delay of approximately two hours between
the application of chemical agent on the referenced date and the provision of appropriate medical
attention thereafter.
Initially, the Court notes that the plaintiff has named the defendant herein in both the
defendant’s individual and official capacities. Notwithstanding, § 1983 does not provide a
federal forum for a litigant who seeks the recovery of monetary damages against a state official
acting in an official capacity because such official is not seen to be a “person” within the
meaning of § 1983. Will v. Michigan Department of State Police, 491 U.S. 58, 64 (1989).
Additionally, in Hafer v. Melo, 502 U.S. 21 (1991), the United States Supreme Court addressed
the distinction between official capacity and individual capacity lawsuits and made clear that a
suit against a state official in his official capacity for monetary damages is treated as a suit

against the State and is therefore barred by the Eleventh Amendment. Id. at 25. Accordingly,
the plaintiff’s claim for monetary damages asserted against the defendant in the defendant’s
official capacity is subject to dismissal. In contrast, the plaintiff’s claim for monetary damages
asserted against the defendant in the defendant’s individual capacity remains viable because a
claim against a state official in his individual capacity, seeking to impose liability for actions
taken by the official under color of state law, is not treated as a suit against the state. Id.2
Turning to the plaintiff’s claim for monetary damages asserted against the defendant in
the defendant’s individual capacity, the defendant contends that he is entitled to qualified
immunity in connection with the plaintiff’s claims. Specifically, the defendant asserts that the
plaintiff will be unable to present evidence sufficient to establish that the defendant participated
in any violation of the plaintiff’s constitutional rights.
The qualified immunity defense is a familiar one and, employing a two-step process,
operates to protect public officials who are performing discretionary tasks. Huff v. Crites, 473
Fed. Appx. 398 (5th Cir. 2012). As enunciated in Saucier v. Katz, 533 U.S. 194 (2001), the first
step in the analysis is to consider whether, taking the facts as alleged in the light most favorable
to the plaintiff, the defendant’s conduct violated the plaintiff’s constitutional rights. Id. at 201.
Second, the district court looks to whether the rights allegedly violated were clearly established.
Id. This inquiry, the Court stated, is undertaken in light of the specific context of the case, not as

2. Although the plaintiff makes a statement in the body of his Complaint that he is
seeking “injunctive relief” (Rec. Doc. 1 at p. 6), and although a claim for injunctive relief
asserted in federal court against a defendant official acting in the defendant’s official capacity is
not prohibited under the Eleventh Amendment (because such a suit is not treated as an action
against the State), Will v. Michigan Department of State Police, supra, 491 U.S. at 71; 15 Am.
Jur. 2d Civil Rights § 101, the plaintiff does not include any prayer for injunctive relief in the
Complaint. To the contrary, in the “Relief Requested” section of the Complaint, the plaintiff
prays only for monetary damages. Id. at p. 10. Accordingly, the Court declines to address the
plaintiff’s claim for prospective injunctive relief.

a broad, general proposition. Id. The relevant, dispositive inquiry in determining whether a
constitutional right was clearly established is whether it would have been clear to a reasonable
state official that his conduct was unlawful in the situation which he confronted. Id. at 202. The
assertion of the qualified immunity defense alters the summary judgment burden of proof.
Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005). Once a defendant pleads qualified
immunity, the burden shifts to the plaintiff, who “must rebut the defense by establishing that the
official’s allegedly wrongful conduct violated clearly established law and that genuine issues of
material fact exist regarding the reasonableness of the official’s conduct.” Gates v. Texas

Department of Protective and Regulatory Services, 537 F.3d 404, 419 (5th Cir. 2008), citing
Michalik v. Hermann, supra, 422 F.3d at 262.3
Undertaking the qualified immunity analysis with respect to the plaintiff’s claims, the
Court concludes that the defendant’s motion should be granted in part and denied in part.
Specifically, the Court finds that the plaintiff’s allegations and evidentiary showing are sufficient
to create a genuine issue of material fact relative to his claim of alleged excessive force, but are
not sufficient to overcome the defendant’s assertion of qualified immunity relative to the
remaining claims.
First, with regard to the plaintiff’s claim that his constitutional rights were violated
through the use of excessive force, it is well-settled that the “core judicial inquiry” in evaluating
an excessive force claim under the Eighth Amendment to the United States Constitution is
whether the force was applied maliciously and sadistically for the very purpose of causing harm

3. The United States Supreme Court has held that rigid chronological adherence to the
Saucier two-step methodology is not mandatory. Pearson v. Callahan, 555 U.S. 223, 236
(2009). Although the Saucier methodology will be “often beneficial,” the Callahan Court leaves
to the lower courts discretion as to the order in which they may wish to address the two prongs
of the qualified immunity analysis. Id.

rather than in a good faith effort to maintain or restore discipline. Wilkins v. Gaddy, 559 U.S. 34,
37 (2010), quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992). Although the Eighth
Amendment’s prohibition against cruel and unusual punishment necessarily excludes from
constitutional recognition de minimis uses of physical force (provided that such force is not of a
sort “repugnant to the conscience of mankind”), Hudson v. McMillian, supra, 503 U.S. at 10, an
inmate who is subjected to gratuitous force by a prison official “does not lose his ability to
pursue an excessive force claim merely because he has the good fortune to escape without
serious injury.” Wilkins v. Gaddy, supra, 559 U.S. at 38. Factors to be considered in
determining whether an alleged use of force has been excessive include the extent of injury
sustained, if any, the need for the application of force, the relationship between the need for
force and the amount of force utilized, the threat reasonably perceived by prison officials, and
any efforts made to temper the severity of a forceful response. Hudson v. McMillian, supra, 503
U.S. at 7.
Applying the foregoing standard, the Court concludes that although the issue is a close
one, there are disputed questions of fact which preclude summary judgment in connection with
the plaintiff’s claim of alleged excessive force. Specifically, the plaintiff asserts in a sworn
statement that defendant Templeton placed the plaintiff in the administrative segregation shower
cell on September 11, 2011 and, without justification or provocation, sprayed a large amount of
chemical irritant into the plaintiff’s cell, notwithstanding that the plaintiff was fully restrained at
the time and notwithstanding that the plaintiff informed the defendant that he suffers with
asthma. The plaintiff asserts that the application of chemical agent rendered him unconscious,
that he was not allowed to shower (or conversely that he was compelled to shower in hot water),
and that he was not seen by a medical officer until approximately two hours later. In addition,

the plaintiff asserts that the chemical agent caused great discomfort which persisted for several
days thereafter, and that he has since suffered with vision deficits and hair loss as a result of the
defendant’s conduct.
In response to the plaintiff’s assertions, the defendant has presented affidavits attesting
that, after the plaintiff was placed in the shower cell on the referenced date, the plaintiff’s
restraints were removed and he began to cause a loud disturbance, yelling and “racking” the bars
of the cell. In response, the defendant gave the plaintiff several orders to cease the disturbance
and to come to the bars of the cell to allow himself to be restrained.4 When the plaintiff refused
these orders, the defendant obtained a can of chemical irritant and, after again ordering the
plaintiff to come to the bars of the cell, sprayed a one-second burst of chemical agent into the
plaintiff’s cell in an attempt to obtain compliance. According to the defendant, the plaintiff then
complied with the defendant’s directives, was allowed to shower without further incident, was
provided with a clean jumpsuit, and was seen by a medical technician. The defendant points to a
medical report which was prepared by the medical technician after the incident and notes that
that report reflects that the plaintiff voiced no complaints whatever and had no objective signs of
injury resulting from the use of chemical irritant. The defendant asserts, therefore, that the
evidence shows that only a minimal amount of force was utilized on the date of the incident and
that this force was not greater than was necessary to obtain compliance from a contentious and

4. The Court notes that whereas the defendant asserts in his affidavit that he repeatedly
ordered the plaintiff to cease the disturbance on the date of the incident and to “come to the cell
bars to be restrained,” see Rec. Doc. 22-4, the disciplinary report, Unusual Occurrence Report
and ARP Statement prepared by the defendant contemporaneously with the incident make no
reference to any orders to the plaintiff to come to the bars of the cell to be restrained, see Rec.
Doc. 11-1 at pp. 10, 11 and 14.

recalcitrant inmate.5
The competing assertions of the parties present issues of credibility which are not
susceptible of resolution on summary judgment. Accepting the plaintiff’s sworn assertions as
true and applying the factors relevant to an excessive force inquiry, the Court first notes that,
although the defendant points to the alleged absence of reported or observable injury as
justification for the grant of summary judgment, the plaintiff asserts that he experienced pain for
several days after the incident (and also permanent complications thereafter), and the law is clear
in any event that no specific quantum of injury is necessary to support a claim of excessive force,
and even minor injuries alone do not justify dismissal.6 See Martin v. Seal, 510 Fed. Appx. 309
(5th Cir. 2013) (overturning the district court’s denial of qualified immunity to a prison security
officer in connection with a claim of excessive force where the district court failed to properly
consider the relevant factors, including inter alia the extent of injury or lack thereof, noting the
conflict between the defendants’ assertion that the plaintiff sustained no injury from an
application of irritant spray and the plaintiff’s competing assertion that much more spray was
utilized than the defendants admitted). See also Comeaux v. Sutton, 496 Fed. Appx. 368, 371 (5th
Cir. 2012) (noting that the plaintiff’s minimal injuries, described as “a bruised lip” and “two
superficial scrapes,” did not relieve the defendants of liability for excessive force); Brown v.
Jones, 471 Fed. Appx. 420 (5th Cir. 2012) (finding that the plaintiff’s claim of injury, resulting

5. The defendant has produced evidence indicating that only a single can of irritant spray
was utilized during the incident involving the plaintiff on September 11, 2011, and that the can
weighed 74 grams prior to the incident and 66 grams afterward. See Rec. Doc. 22-6. The
defendant has provided no evidence, however, indicating what this amount of irritant spray, 8
grams in total, equates to in any practical sense.
6. The plaintiff also asserts that the medical officer falsified the resulting medical
records and lied about the extent of the plaintiff complaints after the incident in order to assist
the defendant in covering up the plaintiff’s claim of excessive force.

from being allegedly grabbed and struck in the groin, was sufficient to overcome the defendants’
motion for summary judgment). This is particularly true where, as here, accepting the plaintiff’s
sworn version of events as true, there was no need for the use of force and no threat reasonably
perceived by the defendant security officer because the plaintiff asserts that he was within a cell,
was restrained in behind-the-back restraints, was not disobeying orders or causing a disturbance,
and was offering no justification for any use of force against him. See Baldwin v. Stalder, 137
F.3d 836, 840 (5th Cir. 1998) (“Needless to say, ‘[t]he amount of force that is constitutionally
permissible ... must be judged by the context in which that force is deployed’”). See also
Chambers v. Johnson, 372 Fed. Appx. 471 (5th Cir. 2010) (recognizing that if, as the plaintiff
asserted, he complied with the orders of security officers, “then the defendants could not have
reasonably perceived any threat requiring a need to use force”); Peterson v. Peshoff, 216 F.3d
1079 (5th Cir. 2000) (finding that an inmate’s plaintiff’s claim “that correctional officers used
excessive force by wantonly and maliciously spraying him with mace without provocation while
he was confined in his cell” was not frivolous). Finally, the fact that the plaintiff, who suffers
with asthma, was not seen by a medical officer until approximately two hours after the
application of chemical agent suggests that little action was taken by the defendant to temper the
severity of the irritant spray. See Martin v. Seal, supra, 510 Fed. Appx. at 313 (5th Cir. 2013)
(noting that it was relevant that security officers “arranged for the provision of medical care
immediately after each spraying” and “offer[ed] [the plaintiff] a shower after each incident”).
On this showing, therefore, summary judgment should be denied relative to the plaintiff’s claim
of excessive force.
In contrast to the foregoing, the Court finds that the defendant is entitled to qualified
immunity in connection with the plaintiff’s remaining claims. First, the plaintiff asserts that the

actions of the defendant were motivated by retaliatory animus in response to the plaintiff having
committed a prior rule violation or, conversely, in response to the plaintiff having physically
assaulted a co-inmate several weeks previously. In this regard, the taking of action against an
inmate in retaliation for the inmate’s exercise of his constitutional rights may be a violation of
the inmate’s constitutional rights. Woods v. Smith, 60 F.3d 1161, 1165 (5th Cir. 1995), cert.
denied, 516 U.S. 1084 (1996). However, a claim of retaliation made by a prison inmate is
regarded with skepticism, lest the federal courts potentially become embroiled in every adverse
act that may occur within a penal institution. Id. at 1166. Accordingly, to prevail on a claim of
retaliation, a prisoner must be able to establish (1) that he was exercising or attempting to
exercise a specific constitutional right, (2) that the defendant intended to retaliate against the
prisoner for the exercise of that right, (3) that an adverse retaliatory action, greater than de
minimis, was undertaken against the prisoner by the defendant, and (4) that there is sufficient
causation, i.e., that “but for” the retaliatory motive, the adverse action would not have occurred.
Morris v. Powell, 449 F.3d 682, 684 (5th Cir.), cert. denied, 549 U.S. 1038 (2006). See also Hart
v. Hairston, 343 F.3d 762, 764 (5th Cir. 2003); Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir.
1999). If an inmate is unable to point to his exercise of a specific constitutional right, then his
claim will fail as a matter of law. See Tighe v. Wall, 100 F.3d 41 (5th Cir. 1996) (dismissing an
inmate’s claim for failure to demonstrate the exercise of a specific constitutional right); Woods v.
Smith, supra, 60 F.3d at 1166 (observing that, “[t]o state a claim of retaliation an inmate must
allege the violation of a specific constitutional right”). Further, the inmate must allege more than
a mere personal belief that he is the victim of retaliation. Jones v. Greninger, supra, 188 F.3d at
325; Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir.), cert. denied, 522 U.S. 995 (1997).
Finally, to demonstrate the requisite retaliatory intent on the part of a defendant, the inmate must

produce direct evidence of motivation or allege a chronology of events from which retaliation
may plausibly by inferred. Woods v. Smith, supra, 60 F.3d at 1166.
In the instant case, the plaintiff’s claim of retaliation fails as a matter of law. First, he
fails to identify any specific constitutional right which he was attempting to exercise and which
prompted the alleged wrongdoing by the defendant. All that the plaintiff alleges in this regard is
that the defendant retaliated in response to “an alleged previous rule violation” committed by the
plaintiff, Rec. Doc. 1 at p. 7, or conversely, that the defendant retaliated in response to the
plaintiff having assaulted a co-inmate several weeks earlier, Rec. Doc. 26-1 at p. 2.
Notwithstanding, the plaintiff does not have a constitutional right either to violate prison rules or
to physically assault other inmates. Accordingly, the plaintiff’s allegations fail to meet the first
part of the test because he fails to identify a specific constitutional right which he sought to
exercise. Moreover, the plaintiff states no more than his personal belief that the alleged
wrongful conduct was undertaken with retaliatory intent, and he provides no chronology of
events from which a retaliatory motive may plausibly be inferred. In short, there is no basis in
the record for a finding that the defendant was acting with retaliatory purpose and, accordingly,
the plaintiff has failed to state a claim upon which relief may be granted relative to this issue.
Finally, the plaintiff alleged in his Complaint that after the application of chemical agent
on September 11, 2011, the defendant compelled the plaintiff to take a hot shower and that the
hot water worsened the effect of the chemical agent. See Rec. Doc. 1 at p. 8. Not only is this
claim belied by the plaintiff’s subsequent assertion that the defendant refused to allow the
plaintiff to take a shower, but to the extent that the plaintiff seeks by this assertion to state a
claim that the defendant was deliberately indifferent to the plaintiff’s health or well-being, this
claim should also be rejected. Specifically, in the context of a claim that a prison security officer

has subjected an inmate to an deleterious condition of confinement, the law is well-settled that
“[t]he Constitution ... ‘does not mandate comfortable prisons,’ and only those deprivations
denying ‘the minimal civilized measure of life’s necessities,’ are sufficiently grave to form the
basis of an Eighth Amendment violation” (citations omitted)). Wilson v. Seiter, 501 U.S. 294,
298 (1991). Accordingly, a constitutional violation occurs only when two requirements are met.
First, there is the objective requirement that the condition be sufficiently serious, depriving a
prisoner of “the minimal civilized measure of life’s necessities,” or denying the prisoner some
“basic human need.” Harris v. Angelina County, Texas, 31 F.3d 331, 334 (5th Cir. 1994), citing
Wilson v. Seiter, supra. Second, under a subjective standard, the Court must find that the prison
official responsible for the deprivation was “‘deliberately indifferent’ to inmate health or safety.”
Wilson v. Seiter, supra, 501 U.S. at 303. See also Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Mere negligence is not a sufficient basis for liability under § 1983. Oliver v. Collins, 904 F.2d
278, 281 (5th Cir. 1990); Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987). Instead, a
prison official must both be personally aware of facts from which an inference may be drawn
that a substantial risk of serious harm exists, and the official must also draw the inference in fact.
Farmer v. Brennan, supra, 511 U.S. at 837.
Applying the foregoing standard, the Court concludes that the plaintiff’s claim regarding
the alleged hot shower should be rejected. The plaintiff’s assertion in this regard is entirely
conclusory, and he does not assert (1) that he complained to the defendant about the hot water,
(2) that the defendant intended for the shower to cause the plaintiff additional harm, or (3) that
the defendant was subjectively aware that the plaintiff faced a substantial risk of serious harm as
a result of this condition. Moreover, the medical record generated after the incident reflects that
the plaintiff made no complaint whatever regarding having been compelled to take a hot shower,

and there were no noted objective findings consistent with exposure to hot water. Finally, the
plaintiff’s assertions relative to the hot water are not deserving of credibility in any event
because of his subsequent contradictory assertion that he was denied an opportunity to take a
shower until the next day. See Rec. Doc. 26-1 at p. 3. Accordingly, on this showing, the Court
is unable to find that the defendant was deliberately indifferent to a perceived substantial risk of
serious harm to the plaintiff’s health or safety which the defendant ignored. Summary
judgement, therefore, is appropriate in connection with this claim.7
The plaintiff also seeks to invoke the supplemental jurisdiction of this Court in
connection with claims arising under state law. A district court, however, may decline the
exercise of supplemental jurisdiction if the plaintiff’s state law claims raise novel or complex
issues of state law, if the claims substantially predominate over the claims over which the district
court has original jurisdiction, if the district court has dismissed all claims over which it had
original jurisdiction, or for other compelling reasons. 28 U.S.C. § 1367. In the instant case,

7. The Court declines to interpret the plaintiff’s Opposition Memorandum, Rec. Doc. 26,
as an amendment to the Complaint. In that Memorandum, the plaintiff complains of the
defendant’s alleged refusal to allow him to shower after the incident and also complains that he
was not provided with medical care until approximately two hours after the incident. The
plaintiff did not assert these claims either in his original Complaint or in the administrative
grievance which he filed relative to the claims asserted in this proceeding. Further, even if the
defendant did in fact refuse to allow the plaintiff to take a shower after the incident, this claim is
not one of constitutional dimension. Specifically, courts which have addressed this issue have
concluded that a failure to allow an inmate to shower after an application of irritant spray is not
the type of wrongdoing that rises to the level of deliberate indifference. See Roach v. Caddo
Parish Sheriff’s Dept., 2010 WL 420068 (W.D. La., Jan. 29, 2010); Dufrene v. Tuner, 2006 WL
2620091 (W.D. La., Aug. 14, 2006). Moreover, with regard to the alleged failure to provide
medical treatment for a two-hour period, the law is clear that a mere delay in providing medical
treatment does not constitute an Eighth Amendment violation without both deliberate
indifference and a resulting substantial harm. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir.
1993). Inasmuch as there is nothing in the record that suggests that the plaintiff suffered
substantial harm as a result of the alleged two-hour delay, this claim is without merit as a matter
of law.

considering the allegations of the plaintiff’s Complaint and the recommendation of the Court that
all of the plaintiff’s claims be dismissed except his claim pertaining to the alleged use of
excessive force on September 11, 2011, the Court recommends that the exercise of supplemental
jurisdiction be declined.
RECOMMENDATION
It is recommended that the Court decline the exercise of supplemental jurisdiction over
the plaintiff’s state law claims. It is further recommended that the Motion for Summary
Judgment of defendant Greg Templeton (Rec. Doc. 22) be granted in part, dismissing all of the
plaintiff’s claims asserted against the defendant except the plaintiff’s claim for monetary
damages asserted against the defendant in the defendant’s individual capacity arising out of the
alleged use of excessive force on September 11, 2011, and that this matter be referred back to the
Magistrate Judge for further proceedings.
Signed in Baton Rouge, Louisiana, on January 2, 2014.

s

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE