Wright v. Smith et al

Filing 80

RULING AND ORDER: The defendants' 46 Motion is GRANTED IN PART, and the plaintiff's claim asserted against defendant Aymond for a violation of his Fourth Amendment rights is dismissed with prejudice. In all other regards, the defendants' 46 Motion is DENIED. this matter is referred back to the Magistrate Judge for further proceedings herein. Signed by Judge John W. deGravelles on 7/11/2019. (KAH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

CHADWICK WRIGHT (#368195)

CIVIL ACTION

VERSUS
LT. WILLIAM SMITH, ET AL.

NO. 13-775-JWD-RLB

RULING AND ORDER
This matter comes before the Court on the defendants’ Motion for Summary Judgment
(R. Doc. 46).1 The Motion is opposed. See R. Docs. 47 and 59-3.
The pro se plaintiff, an inmate incarcerated at the Louisiana State Penitentiary (“LSP”),
Angola, Louisiana, filed this action pursuant to 42 U.S.C. § 1983 against Lt. William Smith,
Capt. Gary Aymond, Nurse Supervisor Katherine Bell and an unidentified “Jane Doe” medical
technician employed at LSP, complaining that the defendants violated his constitutional rights in
several respects. Specifically, the plaintiff alleges that on April 20, 2012, defendant Aymond
charged the plaintiff with a retaliatory disciplinary report in response to the plaintiff’s exercise of
his First Amendment right to seek redress of grievances and that on June 30, 2012, defendant
Aymond and the remaining defendants variously subjected the plaintiff to an improper search,
charged him with false and retaliatory disciplinary reports, subjected him to excessive force, and
exhibited deliberate indifference to his serious medical needs. Pursuant to a previous Report by
the Magistrate Judge (R. Doc. 32), adopted by the District Judge on February 11, 2015 (R. Doc.
33), defendants “Jane Doe” and Katherine Bell were dismissed for failure of the plaintiff to serve

1

This matter was remanded to the District Court by United States Court of Appeals for the Fifth Circuit in order for
the District Court to take in as evidence the plaintiff’s amended Declaration (R. Doc. 59-3) and to consider whether
defendants Smith and Aymond are entitled to summary judgment in light of the facts asserted therein. See R. Doc.
78.

these defendants in accordance with Federal Rule of Civil Procedure 4(m). Pursuant to the same
Report and Recommendation, the plaintiff’s claims relating to the events of April of 2012 were
dismissed as time-barred.
The defendants move for summary judgment relying upon the pleadings, a Statement of
Undisputed Facts, the affidavits of Lt. Joshua Barett, Katherine Bell, Dr. Randy Lavespere,
defendant Lt. William Smith, and defendant Gary Aymond, and certified copies of disciplinary
reports dated June 30, 2012 for contraband, an aggravated sex offense, and aggravated
disobedience and defiance, portions of the plaintiff’s medical records, Department Regulation
No. C-02-003 pertaining to searches of offenders, and the Camp D Raven 3 and 4 Logbook for
June 30, 2012.2 The plaintiff opposes the defendants’ Motion for Summary Judgment relying
upon the pleadings, a Statement of Disputed Factual Issues, and his own Declaration.
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 Corp. 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

The Logbook for Hawk 1 and 2 for June 30, 2012 is also listed as an exhibit, “L”, but was not provided. Instead a
duplicate copy of exhibit “J,” the Logbook for Camp D Raven 3 and 4 was marked as exhibit “L.” Nevertheless, a
copy of the Camp D Hawk 1 and 2 Logbook for June 30, 2012 is found in the record at R. Doc. 43-4.
2

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 Corp. 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).
In his Complaint, the plaintiff alleges that during a ten-day period preceding April 20,
2012, he learned from several sources that defendant Aymond was planning to retaliate against
the plaintiff if the plaintiff did not voluntarily withdraw an administrative grievance that the
plaintiff had filed against the defendant. After the plaintiff advised defendant Aymond that the
plaintiff would not withdraw the referenced grievance, the defendant allegedly approached the
plaintiff on April 20, 2012, stated “what did I tell you,” and escorted the plaintiff to
administrative segregation in connection with an allegedly falsified disciplinary report. The
plaintiff complains that he was thereafter found guilty in connection with that report and was
sentenced to segregated confinement and to a loss of fifty-two weeks of incentive pay.3

3

These claims were previously dismissed as time-barred. See R. Docs. 32 and 33.

Approximately two months later, on June 27, 2012, the plaintiff was transferred from
segregated confinement to a working cellblock at LSP. Three days later, on June 30, 2012,
defendant Aymond allegedly visited the plaintiff’s cell with another officer and conducted a
search of the plaintiff’s belongings. According to the plaintiff, defendant Aymond falsely
purported to discover “contraband” in the plaintiff’s cell and instructed the other officer to issue
the plaintiff a disciplinary report (omitting any reference to defendant Aymond’s presence during
the search), causing the plaintiff to again be escorted to administrative segregation. Upon arrival
in segregated confinement, the plaintiff was allegedly placed in the shower cell at that location
while awaiting assignment to a cell. While he was waiting, defendant Katherine Bell4 allegedly
arrived on the cell tier to dispense medications and, without justification, falsely accused the
plaintiff of masturbating in the shower cell. Several hours later on the same date, defendants
Aymond and Smith approached the plaintiff in the shower cell and proceeded to spray him with
irritant spray without justification or provocation, and one of these officers threw a food tray and
some dirty cleaning water on the plaintiff during the incident. According to the plaintiff, the
unprovoked use of chemical agent was not unusual inasmuch as there is an alleged “customary
practice” at LSP, pursuant to which supervisory security officers routinely “use chemical agent
on inmates whenever a female security guard accuses an inmate of masturbating.” In addition to
the foregoing, the plaintiff asserts that defendants Bell and Smith issued two additional
disciplinary reports against the plaintiff in connection with the above-referenced incidents of
June 30, 2012, falsely accusing the plaintiff, respectively, of engaging in a “sex offense” and of
“aggravated disobedience,” the latter for allegedly causing a disturbance in his cell that required

Defendant Katherine Bell was previously dismissed due to the plaintiff’s failure to serve this defendant in
accordance with Federal Rule of Procedure 4(m). See R. Docs. 32 and 33.
4

the application of irritant spray. The plaintiff asserts that defendant Smith’s disciplinary report
of that date again omitted any reference to the presence of defendant Aymond.
Finally, the plaintiff complains that immediately after the application of irritant spray by
defendants Smith and Aymond on June 30, 2012, defendant Aymond instructed the plaintiff to
take a shower and change into a fresh jumpsuit. The plaintiff refused, however, believing that
the shower water was too hot and believing, from past experience, that the hot water would
aggravate the effects of the chemical agent. Ultimately, however, after assistance was provided
by another security officer, Sgt. Frye (not named as a defendant herein), the plaintiff agreed to
change into a clean jumpsuit, and a medical officer arrived on the tier, identified as defendant
“Jane Doe,”5 who attended to the plaintiff’s complaints. The plaintiff complains, however, that
defendant “Doe” refused to assist the plaintiff in obtaining access to cold water to rinse away the
residual chemical agent and, as a result, the plaintiff suffered chemical burns to his head. The
plaintiff also complains that he was ultimately found guilty of the three (3) disciplinary reports
issued against him by security officers on that date and was sentenced to a loss of fifty-two (52)
weeks of incentive pay and eight (8) weeks of canteen privileges in connection with the
“contraband” charge issued at the instruction of defendant Aymond, to a loss of fifty-two (52)
weeks of incentive pay and eight (8) weeks of canteen privileges in connection with the “sex
offense” charge issued by defendant Bell, and to monetary restitution in the amount of $ 2.00 and
a transfer to punitive segregated confinement at Camp J at LSP in connection with the
“aggravated disobedience” charge issued by defendant Smith. According to the plaintiff, all of

Defendant “Jane Doe” was previously dismissed due to the plaintiff’s failure to serve this defendant in accordance
with Federal Rule of Procedure 4(m). See R. Docs. 32 and 33.
5

the events of June 30, 2012, were part of a continuing plan by defendant Aymond to retaliate
against the plaintiff.
The defendants assert that they are entitled to qualified immunity in connection with the
plaintiff’s claims. Specifically, the defendants contend that the plaintiff’s allegations and
evidentiary showing fail to show the existence of a genuine issue of disputed fact relative to any
alleged 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 F.
App’x. 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
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 262.6
Undertaking the qualified immunity analysis with respect to the plaintiff’s remaining
claims of a violation of his Fourth Amendment rights, retaliation, and use of excessive force, the
Court finds that the defendants’ motion for summary judgment should be granted in part with
respect to the plaintiff’s Fourth Amendment claim. As to the plaintiff claims of retaliation and
the use of excessive force, the Court finds that there are genuine disputed issues of material fact
in this case relative to these claims.
First, with regards to the plaintiff’s claim that defendant Aymond violated his Fourth
Amendment rights by searching his cell on June 30, 2012 with another correctional officer, the
Court notes that while imprisoned persons enjoy many protections of the Constitution, it is clear
that imprisonment carries with it the circumscription or loss of many significant rights. See Bell
v. Wolfish, 441 U.S. 520, 545 (1979). Loss of freedom of choice and privacy are inherent
incidents of confinement. The Fourth Amendment proscription against unreasonable searches
and seizures does not apply within the confines of the prison cell. The recognition of privacy
rights for prisoners in their individual cells simply cannot be reconciled with the concept of
incarceration and the needs and objectives of penal institutions. Hudson v. Palmer, 468 U.S.
517, 526 (1984); United States v. Ward, 561 F.3d 414, 419 (5th Cir. 2009) (stating that “as a per
se rule a prisoner cannot invoke the Fourth Amendment because society is not prepared to
recognize a prisoner's expectation of privacy in his prison cell”).

6

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 Court in Pearson 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.

Notwithstanding, the plaintiff also asserts that the referenced search, the subsequent
disciplinary reports for contraband, an aggravated sex offense, and aggravated disobedience and
defiance, and the use of excessive force were orchestrated by defendant Aymond in retaliation
for the plaintiff refusing to withdraw the grievance filed against defendant Aymond. The
defendants assert that defendant Aymond was not personally involved in the search of the
plaintiff’s cell, with the subsequently issued disciplinary reports, or the use of chemical agent on
the plaintiff. The defendants further assert that the plaintiff cannot establish “but for” causation.
Although the Court acknowledges that prison officials are not permitted to retaliate
against an inmate due to that inmate’s use of the grievance process, claims of retaliation by
prison inmates are regarded with skepticism, lest the federal courts potentially embroil
themselves in every adverse action that occurs 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 defendants
intentionally retaliated 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
defendants, and (4) that there is 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. 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 the exercise of a specific constitutional right,
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. 1997). Finally, to demonstrate the
requisite retaliatory intent on the part of a defendant, the inmate must produce direct evidence of
retaliatory motivation or allege a chronology of events from which retaliation may plausibly by
inferred. Woods v. Smith, supra, 60 F.3d at 1166.
The summary judgment evidence submitted by the defendants reflects that defendant
Aymond was not present during the search of the plaintiff’s cell. The Camp D Raven 3 and 4
Logbook for June 30, 2012 and the disciplinary report issued for contraband do not reflect the
presence of defendant Aymond during the search, and the affidavits of Lt. Barrett and defendant
Aymond state that defendant Aymond was not present during the routine search of the plaintiff’s
cell. See R. Docs. 46-4, 46-5, 46-8, and 46-13.
Likewise, the affidavit of defendant Aymond states that he was not present when the
plaintiff was issued a disciplinary report for an aggravated sex offense after the plaintiff was
transferred to Hawk 1 Right, and the affidavit of Katherine Bell states that she did not observe
defendant Aymond on Hawk 1 when she was conducting pill call. The referenced disciplinary
report also does not reflect the presence of defendant Aymond. See R. Docs. 46-5, 46-6, and 469.
Additionally, the disciplinary report issued for defiance and aggravated disobedience and
the Camp D Hawk 1 and 2 Logbook for June 30, 2012 do not reflect the presence of defendant
Aymond when the plaintiff was sprayed with a chemical agent by defendant Smith. The
affidavits of defendants Smith and Aymond state that defendant Aymond was not present at the
time the chemical agent was used. See R. Docs. 43-4, 46-5, 46-7, and 46-10.

However, the plaintiff states in his Declaration (R. Doc. 59-3) that defendant Aymond
was present during each event complained of and his presence was purposefully omitted in all
documents. As such, the court cannot determine without making an inappropriate credibility
determination that defendant Aymond was not present during or personally involved in the
alleged retaliatory events.
Additionally, the timeline of events set forth in the plaintiff’s Declaration is sufficient to
establish the requisite retaliatory intent on the part of defendant Aymond with regards to the
issuance of the false disciplinary report in June of 2012. The plaintiff states the following in his
Declaration: In March of 2012, he filed a grievance against defendant Aymond. In April of
2012, defendant Aymond confronted the plaintiff about the grievance, and the plaintiff was
informed by another inmate that defendant Aymond intended to retaliate against the plaintiff if
he did not abort the grievance procedures. After refusing to sign a “drop sheet” presented to him
by defendant Aymond on April 11, 2012, the plaintiff was escorted to administrative segregation
by defendant Aymond who later filed a false disciplinary report alleging that the plaintiff had
displayed aggression when he was told to pick up his pants. The plaintiff was sentenced to
extended lockdown, among other things.7
On June 6, 2012 the plaintiff proceeded to the Second Step in the grievance procedure.
On June 27, 2012, the plaintiff was moved to the Camp D Raven working cell block rather than
extended lockdown. Three days later his cell was searched by defendant Aymond and J. Barret,
and a false disciplinary report was subsequently issued for contraband. The plaintiff was then
transferred to a shower cell at Camp D by defendant Smith.

7

This claim was dismissed as prescribed but the events complained of are pertinent to the timeline of events overall.

While in the shower cell, former defendant Bell stopped at the plaintiff’s cell twice to
offer him unsolicited information regarding the location of his medication on a different pill cart.
Bell then informed Sgt. Frye that she observed the plaintiff masturbating in the shower cell.
Later the same day, defendants Smith and Aymond approached the shower cell in a hostile
manner, and the defendants immediately sprayed the plaintiff with a chemical agent, threw a
food tray against the back of his head, refused to provide him with cold water to shower, and
threw a bucket of dirty cleaning solution on the back of his head before leaving the plaintiff with
Sgt. Frye. As such, the plaintiff’s Declaration sets forth a timeline of events from which
retaliation can be plausibly inferred.
The Court now turns to plaintiff’s claim of excessive force against defendants Aymond
and Smith. A use of force by a prison official is excessive and violates the Eighth Amendment
to the United States Constitution only when such force is applied maliciously and sadistically for
the very purpose of causing harm 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). Not every malicious or malevolent action by a prison guard gives rise to a federal
cause of action, however, and 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, quoting Whitley v. Albers, 475 U.S. 312, 327
(1986). The fact that an inmate may have sustained only minimal injury, however, does not end
the inquiry, and an inmate who has been subjected to gratuitous force by prison guards “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. Notwithstanding, the

Court may consider the extent of injury, if any, as potentially relevant to a determination whether
an alleged use of force was excessive under the circumstances. In addition, other factors that
may be considered in determining whether an alleged use of force has been excessive include the
perceived 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.
The summary judgment evidence submitted by the defendants shows that defendant
Smith was called to Hawk 1 and 2 regarding an offender causing a disturbance at approximately
3:50 p.m. When defendant Smith arrived, the plaintiff was yelling and shaking the bars of the
shower cell. The plaintiff stated, “That mother f*****g b***h a*s nurse done hooked me up
with a 21.” (R. Doc. 46-7). Defendant Smith gave the plaintiff several direct verbal orders to
stop shaking the bars and cursing. The plaintiff refused and stated, “Get the f**k out of my face
Lt. Smith.” Defendant Smith then retrieved a can of Phantom chemical agent, and again gave
the plaintiff several direct verbal orders to stop causing a disturbance. The plaintiff failed to
comply, and defendant Smith administered a one-second burst of chemical agent into the cell.
The plaintiff then complied with defendant Smith’s orders. A disciplinary report was issued for
defiance and aggravated disobedience, for which the plaintiff was later found guilty. See R.
Docs. 46-7 and 46-10. Thereafter the plaintiff was allowed to shower and was given a clean
jumpsuit. See R. Doc. 46-11.
The defendants assert that, in response to the plaintiff’s refusals to cease the disturbance,
defendant Smith utilized minimal and necessary force to maintain discipline. The question
becomes, therefore, whether defendant Smith’s use of force in response to the plaintiff’s act of

refusal was objectively reasonable or whether it instead rose to the level of excessive force
prohibited by the Eighth Amendment.
Contrary to the evidence presented by the defendants, the plaintiff states in his
Declaration that while in the shower cell, former defendant Bell stopped at the plaintiff’s cell
twice to offer him unsolicited information regarding the location of his medication on a different
pill cart. Bell then informed Sgt. Frye that she observed the plaintiff masturbating in the shower
cell. Later the same day, defendants Smith and Aymond approached the shower cell in a hostile
manner, and the defendants immediately sprayed the plaintiff with a chemical agent, threw a
food tray against the back of his head, refused to provide him with cold water to shower, and
threw a bucket of dirty cleaning solution on the back of his head before leaving the plaintiff with
Sgt. Frye. As such, there is a genuine issue of material fact regarding the need for the use force
on the part of defendants Aymond and Smith, and whether the defendants utilized more force
than was justified under the circumstance.
As previously noted, 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). In the instant
matter, the parties have provided competing sworn accounts of the events, and the resolution of
the factual disputes will require credibility determinations that are not susceptible of
determination on motion for summary judgment. In light of the apparent disputed fact issues
regarding the plaintiff’s retaliation and excessive force claims, the defendants’ Motion should be
denied in this regard. Accordingly,

IT IS ORDERED that the defendants’ Motion (R. Doc. 46) is GRANTED IN PART,
and the plaintiff’s claim asserted against defendant Aymond for a violation of his Fourth
Amendment rights is dismissed with prejudice.
IT IS FURTHER ORDERED that in all other regards, the defendants’ Motion (R. Doc.
46) is DENIED.
IT IS FURTHER ORDERED that this matter is referred back to the Magistrate Judge
for further proceedings herein.
Signed in Baton Rouge, Louisiana, on July 11, 2019.

S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA