Outley v. Bastiste et al
RULING AND ORDER denying 70 Motion Not to Dismiss. Pursuant to Federal Rule of Civil Procedure 56(f)(3), summary judgment is granted in favor of Defendants, Jane Batiste and Channle Veals, and this matter is DISMISSED WITH PREJUDICE. Signed by Magistrate Judge Erin Wilder-Doomes on 11/18/2020. (EDC)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
RANDY OUTLEY (#125022)
CIVIL ACTION NO.
JANE BATISTE, ET AL.
RULING AND ORDER 1
On November 10, 2020, the Court held a pre-trial conference in this case. Based upon
review of the record, Randy Outley (“Plaintiff”), who is representing himself and is confined at
the Elayn Hunt Correctional Center in St. Gabriel Louisiana, was advised that he had never alleged
or produced evidence of any injury as a result of the alleged failure to protect of Defendants Jane
Batiste and Channle Veals (“Defendants”) that forms the basis of this suit. At the conference, the
Plaintiff was instructed to, if possible, respond to the noted deficiency by filing with the Court any
evidence that may indicate that he suffered more than a de minimis injury as a result of the alleged
failure to protect. The Court warned Plaintiff that if he was unable to show he suffered more than
a de minimis injury, his claims would be dismissed. 2 Although Plaintiff has responded to the
Court’s directives in the form of a “Motion Not to Dismiss;” 3 Plaintiff has failed to produce
evidence to show that he suffered more than de minimis injuries as a result of the alleged failure
Accordingly, summary judgment is appropriate and Plaintiff’s claims against
Defendants will be dismissed with prejudice.
The parties consented to proceeding before the magistrate judge pursuant to 28 U.S.C. § 636(c) and an Order of
Reference was issued. See R. Docs. 65, 66, & 71.
R. Doc. 65.
R. Doc. 70.
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Plaintiff filed this action pursuant to 42 U.S.C. § 1983 alleging “gross negligence” and
“failure to protect” on the part of Defendants. 4 Plaintiff alleges that on April 21, 2017, he and
another inmate, a “tier walker,” later identified as Exalton Guidry (“Guidry”), 5 got into an
argument and Guidry kicked Plaintiff through the bars of the cell dividing them. 6 Plaintiff was
written up for property destruction and placed on mental health watch. 7 Later that day, Plaintiff
alleges that his cell door was opened by Batiste while Plaintiff was in full restraints and while
Guidry was walking on Plaintiff’s “tier.” 8 Plaintiff states that when he exited his cell, still in full
restraints, Guidry began to beat Plaintiff. Veals allegedly backed up and allowed this to occur
until a senior officer, Major Bellamy, stopped the conflict. 9 Plaintiff claims Batiste knew Plaintiff
and Guidry had just had a conflict because “she had just seen us kicking at each other.” 10
Defendants previously filed a motion for summary judgment seeking dismissal of
Plaintiff’s claims due to Plaintiff’s failure to exhaust administrative remedies or, alternatively, on
the basis of qualified immunity since Defendants had no knowledge of any threat posed by Guidry
to Plaintiff. 11
The Court denied that motion because Plaintiff had sufficiently exhausted
administrative remedies and because there existed a genuine dispute regarding the fundamental
question of what knowledge Veals and Batiste possessed regarding the relationship between
Guidry and Plaintiff prior to opening Plaintiff’s cell door and escorting Plaintiff through the tier
R. Docs. 1 & 1-2, p. 1. Plaintiff sued Defendants only in their individual capacities. See R. Doc. 1-2. The Court
previously dismissed Plaintiff’s compensatory damages claim for failure to allege a physical injury. See R. Doc. 33.
That Ruling and Order did not foreclose recovery of nominal or punitive damages. Id. at n. 23.
R. Docs. 21-6; 21-7; 24-3, p. 6.
R. Doc. 1, p. 4.
R. Doc. 1, p. 4. It is unclear why Plaintiff was placed on mental health watch.
R. Docs. 1 & 1-2.
R. Doc. 1-2, p. 1.
Id. See also, R. Doc. 12-1, p. 1.
R. Doc. 21.
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while Guidry was present. 12 The Court now considers whether summary judgment is appropriate
for other reasons on its own motion.
Law & Analysis
A. Standard of Review
A court may consider summary judgment on a motion brought by a party, or sua sponte
independent of a motion. 13 In order to consider summary judgment on its own after identifying
for the parties material facts that may not be genuinely in dispute, the court must first give the
parties, “notice and a reasonable time to respond.” 14 A district court possesses the power to enter
summary judgement sua sponte, “so long as the losing party [is] on notice that she ha[s] to come
forward with all of her evidence.” 15 Adequate notice need not contain the phrase “summary
judgment” or explicitly reference Federal Rule of Civil Procedure 56 to be considered sufficient. 16
This Court provided Plaintiff with notice that his suit would be dismissed if he failed to provide
evidence that he sustained more than a de minimis injuries as a result of the alleged failure to
protect that forms the basis of this suit, and gave Plaintiff a specific time period in which to provide
any evidence. 17
Summary judgment is appropriate where there is no genuine disputed issue as to any
material fact, such that the moving party is entitled to judgment as a matter of law. 18 Summary
judgment must be entered against a party who fails to make a showing sufficient to establish the
R. Docs. 34 & 35.
Compare Fed. R. Civ. P. 56(a) (permitting a party to move for summary judgment on each claim or defense), with
Fed. R. Civ. P. 56(f)(3) (permitting a court to, “consider summary judgment on its own after identifying for the parties
material facts that may not be genuinely in dispute”).
Fed. R. Civ. P. 56(f).
Celotex Corp. v. Catrett, 477 U.S. 317, 326, (1986).
Nat'l Cas. Co. v. Kiva Const. & Engineering, Inc., 496 Fed.App’x 446, 452 (5th Cir. 2012), citing Scott v. Mississippi
Dep’t of Corr., 961 F.2d 77, 79 (5th Cir. 1992).
R. Doc. 65.
Fed. R. Civ. P. 56. See also, Celotex Corp., 477 U.S. at 322; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
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existence of an element essential to that party’s case and on which that party will bear the burden
of proof at trial. 19 In resolving a motion for summary judgment, the court may not evaluate the
credibility of witnesses, weigh the evidence, or resolve material factual disputes. 20 However, only
competent summary judgment evidence can be considered. 21
B. Failure to Protect
Under the Eighth Amendment to the United States Constitution, a prisoner has a
constitutional right to be sheltered from the threat of harm or violence from other inmates.22
Specifically, prison officials “have a duty ... to protect prisoners from violence at the hands of
other inmates.” 23 However, a showing of some injury is required to establish a failure to protect
claim. Because Plaintiff has not provided competent summary judgment evidence to establish any
injury and because, even if other information in the record is considered, any injuries are not more
than de minimis, Plaintiff’s failure to protect claim must be dismissed.
1. There is no competent summary judgment evidence to establish any injury
Numerous cases have addressed whether injury is required to demonstrate a constitutional
violation in the context of a failure to protect claim and have concluded that the dismissal of an
inmate’s failure to protect claim is warranted, even as frivolous, where no harm or injury has in
fact occurred as a result of the defendants’ actions. 24 Here, the only competent summary judgment
Celotex Corp., 477 U.S. at 323.
International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).
See, Fed. R. Civ. Proc. 5(c), which requires an assertion to be supported by “citing to particular parts of materials
in the record, including depositions, documents, electronically stored information, affidavits or declarations,
stipulations, admission, interrogatory answers, or other materials”). See also, Smith v. Palafox, 728 Fed. App’x 270,
275-76 (5th Cir. 2018) (upholding exclusion of unsworn expert reports submitted in opposition to summary judgment
because “evidence proffered in opposition to summary judgment must be sworn or declared under penalty of perjury
Johnston v. Lucas, 786 F.2d 1254, 1259 (5th Cir. 1986).
Farmer v. Brennan, 511 U.S. 825, 832 (1994).
Alexander v. Morgan, No.17-313, 2018 WL 1734633, at *3 (M.D. La. March 27, 2018), report and recommendation
adopted, Alexander v. Morgan, No. 17-313, 2018 WL 1735048 (M.D. La. April 10, 2018). See also Walzier v.
McMullen, 333 Fed.App’x. 848, 851 (5th Cir. 2009) (upholding summary judgment in favor of the defendants where
there was no proof of harm to the plaintiff from co-inmates and, “[a]bsent a showing that other inmates harmed [the
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evidence in the record indicates that Plaintiff was examined after the encounter with Guidry, and,
at this examination, Plaintiff voiced no complaints, showed no signs of trauma, and was in no
apparent distress. 25 Because the only competent evidence in the record shows that Plaintiff did
not suffer any injuries as a result of the alleged attack occurring on April 21, 2017, he cannot
prevail on his claim for failure to protect as a matter of law. 26
2. Even if other information were considered, Plaintiff has not established
more than de minimis injuries
Plaintiff has stated in other documents before the Court that do not constitute competent
summary judgment evidence that he suffered only general soreness and pain as a result of the
incident. 27 However, even if these statements are considered, damages are not available to a
plaintiff for a failure to protect claim if he has suffered no more than a de minimis injury. 28 In
other words, a showing of more than a de minimis injury is required to prove a constitutional
plaintiff], there is no factual basis for a failure to protect claim”); Castellano v. Treon, 79 F.App’x. 6, 7 (5th Cir. 2003)
(upholding the dismissal of an inmate’s failure-to-protect claim as frivolous where the plaintiff conceded that “he
suffered no actual physical injury resulting from the prison officials’ purported failure to protect”); Wilson v. King,
2015 WL 1427479, at *6 (S.D. Miss. Mar. 27, 2015) (dismissal as frivolous where the inmate plaintiff “admit[ted]
that he suffered no physical injury”).
R. Doc. 49-11 (Plaintiff’s medical records), p. 39. In fact, Plaintiff repeatedly refers to his belief that the applicable
legal standard does not require a showing of physical injury. See e.g., R. Doc. 11, p. 1 (“Most courts have decided
constitutional violations are in different categorys [sic]. And for that reason you can get compensatory damages even
if you have no physical injury.”); R. Doc. 12, p. 1 (Same).
See Spivey v. Wilson, No. 17-94, 2019 WL 5095629, at *9 (E.D. Tex. Sept. 27, 2019) (granting summary judgment
for defendants and dismissing a plaintiff’s claims of failure to protect when in the days following the incident the
plaintiff did not complaint of injuries in his sick calls or conversations with medical personnel). Recovery of any
damages, including nominal or punitive, requires the showing of a constitutional violation. In order to establish a
constitutional violation for failure to protect, Plaintiff must suffer more than de minimis injury. See Alexander, 2018
WL 1734633, at *3. Because the record evidence that Plaintiff did not sustain any injury is uncontradicted, Plaintiff
cannot recover any damages for this failure to protect claim, including nominal or punitive damages.
R. Doc. 24-2, p. 2 (“The tier walker hit me with body punches. I ducked into him so he couldn’t hit me in the face
a boxing move. I told the EMT the same. I’m glad I didn’t have to go to the hospital. I was just was sore in the
body.”). See also, R. Doc. 70 (“I suffered the pain of that beating in full restraints. PAIN.”).
Ruiz v. Price, 84 Fed.App’x. 393, 395 (5th Cir. 2003) (“Ruiz cannot receive damages as relief against these
defendants because he did not allege more-than-de-minimis injury.”). See Gilliam v. McMillin, No. 09-99, 2012 WL
845185, at *2 (S.D. Miss. Mar. 12, 2012) (“vague statement as to injury is insufficient to surmount the de minimis
hurdle”); Burns v. Morgan, No. 05-4222, 2006 WL 237018, at *4 (S.D. Tex. Jan. 30, 2006) (head, neck, and shoulder
pain treated with ice pack and ibuprofen was not more than de minimis injury). See also Herron v. Patrolman No. 1,
111 Fed.Appx. 710, 713 (5th Cir. 2004) (a temporary increase in pain is insufficient to surpass the de minimis
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violation based on failure to protect. 29 Though there is no bright line for what amounts to more
than a de minimis injury, courts have taken a “common-sense” approach to determining whether
an injury is de minimis. 30 Generally, “scrapes, scratches, cuts, abrasions, bruises, pulled muscles,
back aches, leg aches, etc.” do not pass the de minimis threshold. 31 Similarly, a sore, bruised ear
lasting for three days is de minimis. 32
General soreness and pain, as alleged by Plaintiff, is clearly de minimis. 33 An injury that
passes the de minimis threshold must be the kind of physical injury that is “an observable or
diagnosable medical condition requiring treatment by a medical care professional. It is not a sore
muscle, an aching back, a scratch, an abrasion, a bruise, etc., which lasts even up to two or three
weeks.” 34 “Injuries treatable at home and with over-the-counter drugs, heating pads, rest, etc.” are
not more than de minimis, so as to permit recovery of damages for a failure to protect claim. 35
Here, the medical records produced do not indicate Plaintiff was injured at all, but even if this
Court were to consider Plaintiff’s statements regarding general pain and soreness, Plaintiff has not
provided evidence to show he suffered more than de minimis injuries from the alleged failure to
See Spivey, 2019 WL 5095629, at *9 (“A prisoner claiming a constitutional violation for failure to protect must also
show more than a de minimis injury.”); Carter v. Prator, No. 12-1233, 2013 WL 3894134 (W.D. La. July 26, 2013)
(“the Eighth Amendment’s prohibition of cruel and unusual punishment excludes from constitutional recognition de
minimis physical injury.”); Walzier, 333 Fed.App’x. at 851 (“[a]bsent a showing that other inmate harmed [plaintiff],
there is no factual basis for a failure to protect claim.”); Simmonds v. Laughlin, No. 04-1015, 2006 WL 581272, at *2
(S.D. Tex. March 7, 2006) (“Such Eighth Amendment claims are not actionable unless there is a showing of physical
injury resulting from the allegedly unconstitutional conduct.”).
Luong v. Hatt, 979 F.Supp. 481, 486 (N.D. Tex. Sept. 11, 1997).
Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
See Luong, 979 F.Supp. at 486 (scrapes, scratches, bruises, and aches are suffered by free world people in everyday
living and do not rise to a level sufficient to pass the de minimis threshold).
Plaintiff cites Hudson v. McMillian, 530 U.S. 1 (1992) and McLaurin v. Prater, 30 F.3d 982 (8th Cir. 1994) for the
proposition that a showing of injury is not required for a claim under the Eighth Amendment. These cases are
distinguishable from Plaintiff’s case because Hudson and McLaurin analyzed the need to show harm in the context of
excessive force claims, whereas the claim here is for failure to protect. The Court does not opine on what degree of
injury is required to state a claim of excessive force in the Fifth Circuit because that claim is not before the Court.
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Accordingly, because Plaintiff has failed to bring forward sufficient evidence to establish
a required element of a failure to protect claim after notice and an opportunity to be heard, his
clams are subject to dismissal.
Accordingly, IT IS ORDERED that Plaintiff’s Motion Not to Dismiss 37 is DENIED.
IT IS FURTHER ORDERED that, pursuant to Federal Rule of Civil Procedure 56(f)(3),
summary judgment is granted in favor of Defendants, Jane Batiste and Channle Veals, and this
matter is DISMISSED WITH PREJUDICE.
Signed in Baton Rouge, Louisiana, on November 18, 2020.
UNITED STATES MAGISTRATE JUDGE
R. Doc. 70.
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