Gage v. Jenkins et al

Filing 72

RULING : In the interest of justice, and in accordance with FRCP Rule 56(d), the Court declines to adopt the 67 recommendation of the Magistrate Judge and ruling on the Defendant's 56 Motion for Summary Judgment is hereby DEFERRED, with out prejudice to re-urging. This matter is referred back to the Magistrate Judge for further proceedings consistent with this Ruling, including but not limited to the issuance of any Orders determined by the Magistrate Judge to be appropriate in light FRCP Rule 56(d) and (e). Signed by Judge Shelly D. Dick on 12/4/2014. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CHRISTOPHER GAGE (#424395)
CIVIL ACTION
VERSUS
NO. 13-638-SDD-SCR
LEON JENKINS, 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 November 3, 2014 regarding the Defendants Cross (sic)
Motion for Summary Judgment.3

Plaintiff has filed an Objection4 to the Magistrate

Judge’s Report and Recommendation which the Court has also considered. For the
reasons which follow, the Court declines to adopt the Report and Recommendation of
the Magistrate Judge.
Defendants, correctional officers at Louisiana State Penitentiary (LSP), move for
summary judgment on the grounds of qualified immunity and under the Heck v.
Humphrey5 doctrine. Defendants also rather in artfully moved for summary judgment on
the grounds that there is an absence of evidence of injury resulting from the use of
excessive force, a necessary element of an 8th Amendment claim of cruel and unusual
punishment.6

1

Rec. Doc. 1.
Rec. Doc. 67.
3
Rec. Doc. 56
4
Rec. Doc. 68.
5
512 U.S. 477, 114 S.Ct. 2364 (1994).
6
The gravamen of the Plaintiff’s claim is that after the altercation with Sgt. Taylor, he was injured when
the Defendants, who responded to the altercation, allegedly excessively continued to beat him after he
had been subdued and restrained and taken to administrative segregation. Defendants’ motion is
premised in part on argument that, because Sgt. Taylor inflicted a blow to Plaintiff’s head, evidence is
2

23962

The Court has previously denied the Defendants’ summary judgment motion
made on the grounds of Heck v Humphreys.7

Defendants failed to establish the

elements of Qualified Immunity necessary to support summary judgment. Summary
judgment is appropriate 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.8 Plaintiff, Gage, failed to file any opposition to
the Motion for Summary Judgment. In his objection to the Magistrate’s Report and
Recommendation, Plaintiff states that he “previously responded to an earlier bid for
summary judgment and confused the two pleadings, missing his opportunity to file [an
Opposition] to the current summary judgment.”9
The Plaintiff’s pro se status does not relieve him of the procedural obligations
imposed on all other litigants.10 Gage did not timely file an opposition to Defendants’
Motion for Summary Judgment. His failure to respond, however, does not permit the
Court to enter a “default” summary judgment. Shortly after the instant Motion for
Summary Judgment, the Plaintiff filed a “Motion to Preserve Electronic Surveillance
Video Evidence”11 in which he argues against summary judgment. After the Magistrate
Judge rendered his Report and Recommendation, Plaintiff filed a “Motion to Append

lacking that the Defendants who responded to the altercation subjected him to cruel and unusual
punishment. Defendants argue that, “[t]he fact that plaintiff was not evaluated by a medical professional
immediately after the altercation with Taylor, but before he was escorted to administrative segregation is
the key in this case because inmate Gage cannot prove he was uninjured after the altercation with
Taylor.” Rec. Doc. 56-1, p. 15.
7
The Court adopted the Magistrates Report and Recommendation (Rec. Doc. 66) denying a separate
Motion for Summary Judgment (Rec. Doc. 18) by the Defendants on Heck grounds
8
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986).
9
Rec. Doc. 68. The record verifies that the Plaintiff filed an Opposition to the Defendants’ earlier Motion
for Summary Judgment.
10
Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.1981).
11
Rec. Doc. 67.

23962

Newly Collected Evidence for Summary Judgment Purposes”12 which appears to be an
effort to file countervailing affidavits, albeit belated, which motion remains pending.
The Court is faced with competing considerations. On the one hand, the Court is
to construe a pro se litigant’s pleadings liberally.13

However, “[i]n response to a

summary judgment motion, a litigant, whether pro se or represented, has the duty to
present to the district court the evidence that creates a genuine issue of material fact.”14
Rule 56(e) requires the nonmoving party to go beyond the pleadings in opposition to a
motion for summary judgment.15 A summary judgment motion may be opposed by any
of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings
themselves.16 “Of course, a party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its motion, and identifying
those portions of ‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.”17 However, Rule 56 “mandates the entry of
summary judgment, after adequate time for discovery and upon motion, 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.”18

12

Rec. Doc. 69.
Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972); See also, Perez v.
Johnson, 122 F.3d 1067 (5th Cir. 1997) (unpublished) stating “we are under the duty to construe a [pro se
litigants] pleadings liberally” citing, McCrae v. Hankins, 720 F.2d 863, 865 (5th Cir.1983).
14
Murrell v. Bennett, 615 F.2d 306, 309 (5th Cir.1980).
15
Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986).
16
Id.
17
Id. at 323, 106 S. Ct. at 2553 (1986).
18
Id. at 322, 106 S. Ct. at 2552 (1986).
13

23962

In his “Motion to Preserve Electronic Surveillance Video Evidence”,19 Plaintiff
moves to preserve LSP surveillance video of the events at issue which Plaintiff
contends are “central to genuine issues of material fact for purposes of supporting his
claims and disputing the Defendant's assertions”. The Court construes this pleading as
a Rule 56(d) declaration that the Plaintiff seeks the opportunity to obtain evidence
“essential to justify” opposition to the Defendants’ motion.20
In the interest of justice, and in accordance with FRCP Rule 56(d), the Court
declines to adopt the recommendation of the Magistrate Judge and ruling on the
Defendants’ Motion for Summary Judgment21 is hereby DEFERRED, without prejudice
to re-urging. This matter is referred back to the Magistrate Judge for further proceedings
consistent with this Ruling, including but not limited to the issuance of any Orders
determined by the Magistrate Judge to be appropriate in light FRCP Rule 56(d) and (e).
Signed in Baton Rouge, Louisiana on December 4, 2014.

S

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

19

Rec. Doc. 64.
FRCP Rule 56(d)
21
Rec. Doc. 56.
20

23962