LaGarde v. Metz

Filing 44

RULING AND ORDER denying 36 Motion for Summary Judgment. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 6/10/2015. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

FELTON LEGARDE

CIVIL ACTION

VERSUS

NO. 13-805-RLB

SERGEANT CHRISTOPHER
L. METZ

RULING AND ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Before the Court is Plaintiff’s Motion for Summary Judgment filed on January 14, 2015.
(R. Doc. 36). Any opposition by Defendant, Christopher L. Metz, was due by February 9, 2015.
See LR 7(f) (responses to motions must be filed within 21 days); Fed. R. Civ. P. 6(d) (adding 3
days for responses when service is made under Rule 5(b)(2)(E)); Fed. R. Civ. P. 5(2)(b)(E)
(service by electronic means). As of this Order, Defendant has not opposed or otherwise
responded to Plaintiff’s Motion for Summary Judgment.
I.

BACKGROUND
This is a suit for constitutional violations made actionable by 42 U.S.C. § 1983. Plaintiff

is an inmate incarcerated by the State of Louisiana. Defendant is employed by the State of
Louisiana as a prison guard. At the time of the alleged incident, Defendant was working in the
same facility in which Plaintiff was housed. According to Plaintiff, on March 13, 2013,
Defendant “approached with his penis out and told [Plaintiff] to ‘suck his dick.’” (R. Doc. 36 at
1). After refusing this “advance,” Plaintiff explains that Defendant followed him into the
restroom. (R. Doc. 36 at 1). While Plaintiff “was urinating,” Defendant allegedly took the

handle of a broom and “shoved it on [Plaintiff’s] butt,” saying: “‘You going to suck my dick.
You a hoe.” (R. Doc. 36 at 1); (R. Doc. 36-4 at 2). Plaintiff again refused Defendant’s
“advance” and left the restroom. (R. Doc. 36 at 1). Plaintiff claims that Defendant “then
followed [Plaintiff] about his day” while “punching on [him]” and “telling him, ‘Bitch, you a
hoe. You going to suck my dick.’” (R. Doc. 36 at 1); (R. Doc. 36-4 at 2).
Following these events, Plaintiff filed an ARP (Administrative Remedy Procedure),
lodging a formal complaint against Defendant. (R. Doc. 36-4). The ARP did not include all of
the allegations in the Complaint. (R. Doc. 36) (In a letter to his attorney, Plaintiff explains, “I
didn’t get to write everything that I wanted to write in the ARP . . . .”). The prison’s First Step
Response Form summarizes the allegations: “Offender Felton Lagarde in his ARP alleged . . .
that Sgt. Metz approached him with his penis in his hand and asked him to suck his penis.” (R.
Doc. 36-5). According to prison officials, when questioned about the incident, Defendant
“admitted to Offender Legarde’s allegations.” (R. Doc. 36-5).
On December 18, 2013, Plaintiff filed this law suit claiming that Defendant’s conduct
amounted to excessive force and sexual harassment in violation of his Eighth Amendment rights.
Defendant submitted an Answer denying the allegations; however, he failed to plead qualified
immunity—an affirmative defense. Plaintiff later filed this Motion for Summary Judgment on
the issue of liability. (R. Doc. 36). Defendant has not filed an opposition or otherwise
responded.
II.

APPLICABLE LAW
Summary judgment is appropriate when there are no genuine issues of material fact and

the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56. When a motion
for summary judgment is properly made and supported under Rule 56(c), the opposing party may

not rest on the mere allegations of their pleadings, but rather must come forward with “specific
facts showing that there is a genuine issue for trial.” Matsushita Electric Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986); Fed. R. Civ. P. 56(c)(1).
III.

DISCUSSION
Plaintiff suggests that Defendant’s use of excessive force and sexually harassing behavior

amounted to an Eighth Amendment violation. He seeks summary judgment on the issue of
liability under the Eighth Amendment.
A.

Sexual Harassment

An alleged sexual assault is actionable “under § 1983 when (1) the assault is objectively,
sufficiently serious and (2) the involved prison official acted with a sufficiently culpable state of
mind.” Tilley v. Gonzalez, 2010 WL 1541494, at *4 (N.D. Tex. Mar. 10, 2010); see also
Burleson v. Tex. Dep't Criminal Justice, 393 F.3d 577, 589 (5th Cir. 2004) (same elements apply
in the context of a general Eighth Amendment claim). There can be no doubt that severe or
repetitive sexual abuse of an inmate by a prison officer can be objectively, sufficiently serious
enough to constitute an Eighth Amendment violation. Boddie v. Schnieder, 105 F.3d 857, 861862 (2d Cir. 1997). However, not all sexually-harassing actions amount to a constitutional
violation afforded such protection. Boddie, 105 F.3d at 861 (verbal harassment and fondling of
inmate’s genitals by prison guard, though despicable, not sufficiently serious to establish Eighth
Amendment violation); Adkins v. Rodriguez, 59 F.3d 1034, 1037 (10th Cir. 1995) (verbal sexual
harassment by jailer, while outrageous and reprehensible, does not amount to a violation of the
inmate's Eighth Amendment rights); Petty v. Venus Correctional Unit, 2001 WL 360868, at *2
(N.D. Tex. April 10, 2001) (same).

The facts established by Plaintiff, although uncontested, are insufficient to state a claim
under the Eighth Amendment. Plaintiff has put forth evidence that Defendant exposed himself,
asked Plaintiff to perform sexual acts on him and shoved a broomstick on Plaintiff’s “butt.”
While the Court finds this conduct deplorable, it is not sufficient to rise to the level of an Eighth
Amendment violation.
Because only severe or repetitive sexually harassing behavior or abuse will violate the
Eighth Amendment, district courts in the Fifth Circuit have “consistently found that single,
isolated acts,” like the conduct alleged by Plaintiff, are not actionable claims of sexual
harassment under the Eighth Amendment. Ben v. Brinks, 2014 WL 931796, at *2 (W.D. Tex.
Feb. 13, 2014), report and recommendation adopted, 2014 WL 931432 (W.D. Tex. March 10,
2014). For example, in Ben v. Brinks, an inmate alleged “unwanted and unsolicited rubbing and
touching of his inner thighs and buttocks” by a prison guard, who also “threatened to have him
killed if he made any complaints to the authorities.” Ben, 2014 WL 931796, at *1. The court
found this single instance of sexual touching, which did not result in any physical injury, along
with verbal threats, were not sufficiently serious or repetitive to violate the Eighth Amendment.
Id. at *3.
In Wright v. Thompson, the court dismissed an inmate’s sexual harassment claim alleging
that “on one particular date, [a prison guard] touched his penis,” and otherwise verbally harassed
him on several occasions. Wright, 2010 WL 3282955, at *1-2, 4 (W.D. La. June 30, 2010),
report and recommendation adopted, 2010 WL 3282957 (W.D. La. Aug. 17, 2010). According
to the court, the “single brief physical contact . . . coupled with the officer’s verbal harassment,”
was not the “kind of severe and repetitive abuse or wanton and sadistic infliction of pain that
rises to the level of an Eighth Amendment violation.” Id. at *4-5.

Finally, in Cooper v. Caddo Correctional Center, the Western District of Louisiana
found an inmate’s allegations that a prison guard verbally harassed him and “grabbed his
buttocks on one occasion for 30 to 40 seconds” while the inmate was urinating did not amount to
sexual harassment in violation of the Eighth Amendment. Cooper, 2007 WL 471185, at *1-2
(W.D. La. Jan. 11, 2007). 1 The Western District explained that Cooper’s “single, brief physical
contact and associated verbal harassment are not sufficiently serious and pervasive to permit
redress under the constitution.” Id. at *3. Moreover, the court noted that the inmate’s “exposure
to verbal sexual harassment and verbal abuse [did] not present an actionable claim under §
1983.” Id. at *2 (citing Jane Doe 5 v. City of Haltom City, 106 F. App’x 906, 908 (5th Cir. 2004)
(“Verbal sexual harassment does not violate a detainee or inmate’s constitutional rights . . . .”)).
Similar to the allegations in Ben, Wright and Cooper, Plaintiff has not demonstrated an
actionable claim for sexual harassment under the Eighth Amendment. The alleged conduct took
place over the course of a single day and did not result in any physical injury. Most importantly,
it included only one instance of sexually-natured touching — when Defendant placed a broom
handle “on [Plaintiff’s] butt.” 2 While the conduct complained of is deplorable, it is not
“repugnant to the conscience of mankind” — i.e., sufficiently serious or pervasive to violate the
Eighth Amendment. Hudson v. McMilliam, 503 U.S. 1, 10 (1992); see also Copeland v. Nunan,
250 F.3d 743, at *3 (5th Cir. 2001) (eighth amendment was not violated where prisoner was
subjected to two instances of “unwanted touching for which he suffered no physical and no more
1

The Cooper opinion cited by the Court is a Report and Recommendation issued by a magistrate judge. Although
not available through Westlaw, that Report and Recommendation was fully adopted by the District Court. See
Judgment, Cooper v. Caddo Correctional Center, No. 06-09 (W.D. La. Feb. 8, 2007), ECF No. 49 (adopting
magistrate judge’s report and recommendation to grant defendant’s motion for summary judgment, and dismissing
plaintiff’s cause of action).
2

There is no indication that the broom handle even made contact with Plaintiff’s skin, as opposed to his clothes.
The Court further notes that the Motion and Memorandum both assert that the broom handle was shoved on
Plaintiff’s rectum. (R. Doc. 36 at 1); (R. Doc. 36-1 at 1). Plaintiff’s Declaration, however, does not identify contact
with the rectum. (R. Doc. 36-4 at 2) (“he took the broom handle and shoved it on my butt”).

than de minimis psychological injuries”); Washington v. City of Shreveport, 2006 WL 1778756,
at *2, 6 (W.D. La. June 26, 2006) (prisoner’s allegations that guard “fondled her breast once,
touched her inner thigh, and made sexual remarks to her, including repeatedly asking her for
sex,” did not constitute sexual harassment under the Eighth Amendment). Moreover, Plaintiff
cannot recover for verbal sexual harassment under § 1983. See Jane Doe 5, 106 F. App’x at 908
(“Verbal sexual harassment does not violate a detainee or inmate’s constitutional rights . . . .”).
And so, the facts currently established by Plaintiff are insufficient to grant summary judgment
for a claim of sexual harassment in violation of the Eighth Amendment.
B.

Excessive Force

In the context of an excessive force claim, “the core judicial inquiry” is not whether a
“certain quantum of injury was sustained, but rather whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Wilkins v.
Gaddy, 559 U.S. 34, 37 (2010). While a serious injury must not occur for a court to find
excessive force, the “absence of serious injury” remains relevant to the Eighth Amendment
inquiry. Hudson v. McMillian, 503 U.S. 1, 7 (1992). Nonetheless, the “Eighth Amendment’s
prohibition of cruel and unusual punishments necessarily excludes from constitutional
recognition de minimis uses of physical force.” Gaddy, 559 U.S. at 37-38. For example, an
inmate complaining of a “push or shove that causes no discernable injury almost certainly fails to
state a valid excessive force claim.” Id. at 38.
Plaintiff claims that after refusing Defendant’s sexual advances, Defendant “punched on
him” throughout the remainder of the day. (R. Doc. 36-1 at 1); (R. Doc. 36-4 at 2). Plaintiff does
not indicate how many times Defendant “punched on him” or how hard he was punched.
Instead, in his own words, Plaintiff did not suffer any physical injury as a result of the punches.

(R. Doc. 36-1 at 5) (Defendant “may not have actually asserted the type of physical pain akin to
typical Eighth Amendment claims.”).
The Eighth Amendment necessarily excludes from constitutional recognition uses of
force that do not result in injury, as well as “de minimis uses of physical force, provided that the
use of force is not of a sort repugnant to the conscience of mankind.” Hudson, 503 U.S. at 9-10
(quoting Whitley v. Albers, 475 U.S. 312, 327 (1986)). Plaintiff has not alleged any physical
injury caused by the punches and has not put forth evidence establishing the level of force
exerted. Simply put, the facts that are currently before the Court are insufficient to warrant
summary judgment for Plaintiff. This is not to say that Plaintiff cannot establish an Eighth
Amendment violation after further discovery. It is also not to say that Defendant could not
prevail on his own motion. Nonetheless, summary judgment in favor of the Plaintiff is
inappropriate at this time. Therefore,
IT IS ORDERED that Plaintiff’s Motion for Summary Judgment is DENIED.
Signed in Baton Rouge, Louisiana, on June 10, 2015.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE