Howard v. Vannoy et al

Filing 17

ORDER: Because leave to amend is futile in the Court's view, the Court's previous 11 Ruling granting the Defendants' Rule 12(b)(1) and 12(b)(6) Motion to Dismiss shall stand, as supplemented by this Order. Judgment shall be entered accordingly. Signed by Chief Judge Shelly D. Dick on 5/21/2021. (SWE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

EMANUEL HOWARD

CIVIL ACTION

VERSUS

NO. 18-570-SDD-EWD

DARRELL VANNOY, ET AL.
ORDER
This matter is before the Court on the Response to the Judgment of December 20,
2018 filed by Plaintiff, Emanuel Howard on January 9, 2019.1

The Court previously

entered a Ruling2 granting the Defendants’ Rule 12(b)(1) and 12(b)(6) Motion to Dismiss3
for Plaintiff’s failure to submit an Opposition within the time limits set forth by Local Rule
7(f) and also because the Court found that the motion had merit. Following the orders in
the Court’s Ruling, Plaintiff filed the aforementioned Response and a Memorandum in
Opposition4 to Defendants’ original Motion.
First, the explanation by Plaintiff’s counsel for the failure to timely file an opposition
demonstrates counsel’s lack of familiarity with the local rules of the Middle District of
Louisiana and misinterpretation of the docket sheet. Plaintiff claims: “On October 25,
2018, this Honorable Court issued a Notice to Counsel advising that the Status
Conference … was cancelled. Further, this Honorable Court advised that it would take
1

Rec. Doc. No. 15.
Rec. Doc. No. 11.
3
Rec. Doc. No. 7.
4
Rec. Doc. No. 15.
2

Document Number: 67400 

1

up the arguments advanced [b]y Defendants within 90 days of October 25, 2018.”5 To
the extent Plaintiff’s counsel contends this Court advised that it would rule on Defendants’
Motion to Dismiss within 90 days of October 25, 2018, that is an incorrect interpretation
of the Magistrate Judge’s docket entry.

The Magistrate Judge advised that, since

Defendants had filed a Motion to Dismiss, the Status Conference was cancelled, and the
Magistrate Judge would “review this matter in 90 days,” i.e., revisit the need for a Status
Conference.6
Next, counsel claims that “no notice was issued by the Clerk of Court showing that
the motion was referred to this Honorable Court for consideration. With that, Plaintiff was
unsure if the Defendants’ motion was actually accepted by the Clerk and this Honorable
Court.” Counsel’s “understanding” is not the procedure employed by the Middle District
of Louisiana. Once Defendants’ motion was filed and docketed, the motion was properly
before the district judge and, pursuant to the Local Rules of the Middle District, Plaintiff
had 21 days to file an Opposition to the motion or seek an extension of that deadline. To
the extent this Section of the Court previously issued briefing notices, such notices were
done as a courtesy. Plaintiff, like any other party in any other matter, remains bound to
know and follow the Local Rules of this Court when practicing herein.
Nevertheless, the Court does not view counsel’s misunderstanding as bad faith,
considering that Plaintiff filed the appropriate response and opposition memorandum
within the time period allowed by the Court. Thus, the Court will consider the 12(B)(1)

5
6

Rec. Doc. No. 14, ¶ 3.
Rec. Doc. No. 10.

Document Number: 67400 

2

and 12(B)(6) Motion to Dismiss7 filed by Defendants, Warden Darrell Vannoy and the
Louisiana Department of Corrections, along with Plaintiff’s Opposition.8 However,
dismissal remains warranted based on the merits in this matter. Plaintiff conceded
dismissal of his 42 U.S.C. § 1983 claims against the Louisiana Department of Corrections
and Warden Vannoy, in his official capacity.9 Thus, the only remaining claims are the
Section 1983 claims asserted against Warden Vannoy in his individual capacity.
I.

FACTUAL BACKGROUND
During the relevant time period, Plaintiff alleges that he was confined as an inmate

at the Louisiana State Penitentiary (“LSP”) in Angola, Louisiana, specifically in the Hickory
3 dormitory.10 Plaintiff further alleges that, on March 25, 2017, another Hickory 3 inmate
heated a liquid substance in the dorm microwave and poured the heated liquid onto
Plaintiff, which resulted in a physical altercation between Plaintiff and this other inmate,
and from which Plaintiff sustained injuries.11 Plaintiff claims he was injured because
Defendants failed to staff Hickory 3 with the appropriate number of corrections officers
and failed to promulgate rules restricting inmate access to, and use of, the microwave
located in Hickory 3.12
Pursuant to Plaintiff’s concessions in his Opposition, the only viable claims are
those Eighth Amendment constitutional claims asserted against Warden Vannoy, in his

7

Rec. Doc. 13.
Rec. Doc. No. 15.
9
Rec. Doc. No. 15, p. 6.
10
Rec. Doc. No. 1, ¶ 10.
11
Id. at ¶¶ 10-16.
12
Id. at ¶¶ 17-20.
8

Document Number: 67400 

3

individual capacity, for subjecting Plaintiff him to cruel and unusual punishment by failing
to adopt policies/procedures to protect inmates from improper microwave use in the
dorms and failing to staff Hickory 3 with the appropriate number of officers to protect
Plaintiff from the injuries sustained. Warden Vannoy asserted the affirmative defense of
qualified immunity; Plaintiff bears the burden of demonstrating that his pleadings have
overcome this defense at the Rule 12(b)(6) stage. Plaintiff has failed to carry this burden.
II.

LAW & ANALYSIS
A. Motion to Dismiss Under Rule 12(b)(6)
When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all well-

pleaded facts as true, viewing them in the light most favorable to the plaintiff.’”13 The
Court may consider “the complaint, its proper attachments, documents incorporated into
the complaint by reference, and matters of which a court may take judicial notice.”14 “To
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state
a claim to relief that is plausible on its face.’”15 In Twombly, the United States Supreme
Court set forth the basic criteria necessary for a complaint to survive a Rule 12(b)(6)
motion to dismiss. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation

13
In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007)(quoting Martin v. Eby Constr.
Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).
14
Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011).
15
In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (quoting Martin v. Eby Constr. Co. v. Dallas Area
Rapid Transit, 369 F.3d at 467).
4
Document Number: 67400 

of the elements of a cause of action will not do.”16 A complaint is also insufficient if it
merely “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”17 However,
“[a] claim has facial plausibility when the plaintiff pleads the factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”18 In order to satisfy the plausibility standard, the plaintiff must show “more than
a sheer possibility that the defendant has acted unlawfully.”19 “Furthermore, while the
court must accept well-pleaded facts as true, it will not ‘strain to find inferences favorable
to the plaintiff.’”20 On a motion to dismiss, courts “are not bound to accept as true a legal
conclusion couched as a factual allegation.”21
B. Qualified Immunity
In Harlow v. Fitzgerald, the United States Supreme Court established the principle
that “government officials performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”22
“When a defendant invokes qualified immunity, the burden shifts to the plaintiff to

16

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal citations and brackets
omitted)(hereinafter Twombly).
17
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(internal citations
omitted)(hereinafter “Iqbal”).
18
Twombly, 550 U.S. at 570.
19
Iqbal, 556 U.S. at 678.
20
Taha v. William Marsh Rice University, 2012 WL 1576099 at *2 (quoting Southland Sec. Corp. v. Inspire
Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004)).
21
Twombly, 550 U.S. at 556 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d
209 (1986)).
22
457 U.S. 800, 818 (1982).
5
Document Number: 67400 

demonstrate the inapplicability of the defense.”23
A claim of qualified immunity requires the Court to engage in the well-established
two-step analysis developed by the Supreme Court in Saucier v. Katz.24 As stated by the
Fifth Circuit in the context of a motion for summary judgment:
First, we determine whether, viewing the summary judgment evidence in
the light most favorable to the plaintiff, the defendant violated the plaintiff's
constitutional rights. See, e.g., Tarver v. City of Edna, 410 F.3d 745, 750
(5th Cir. 2005); McClendon v. City of Columbia, 305 F.3d 314, 322–23 (5th
Cir.2002) (en banc); Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir.
2001). If not, our analysis ends. If so, we next consider whether the
defendant's actions were objectively unreasonable in light of clearly
established law at the time of the conduct in question. See, e.g., Tarver,
410 F.3d at 750; Glenn, 242 F.3d at 312. To make this determination, the
court applies an objective standard based on the viewpoint of a reasonable
official in light of the information then available to the defendant and the law
that was clearly established at the time of the defendant's actions. See
Glenn, 242 F.3d at 312; Goodson v. City of Corpus Christi, 202 F.3d 730,
736 (5th Cir. 2000); see also Tarver, 410 F.3d at 750 (“If officers of
reasonable competence could disagree as to whether the plaintiff's rights
were violated, the officer's qualified immunity remains intact.”).25
When the defense of qualified immunity is raised in a Rule 12(b)(6) motion, “it is
the defendant's conduct as alleged in the complaint that is scrutinized for ‘objective legal
reasonableness’.”26 The plaintiff must support his claim with “sufficient precision and
factual specificity to raise a genuine issue as to the illegality of defendant's conduct at the
time of the alleged acts.”27 When greater detail is required to address the defense of

23

Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009) (citing McClendon v. City of Columbia, 305
F.3d 314, 323 (5th Cir. 2002) (en banc)).
24
533 U.S. 194 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 229 (2009). See Lytle v. Bexar
County, Tex., 560 F.3d 404, 409 (5th Cir. 2009).
25
Freeman v. Gore, 483 F.3d 404, 410–11 (5th Cir. 2007).
26
McClendon, 305 F.3d at 323 (quoting Behrens v. Pelletier, 516 U.S. 299 (1996)).
27
Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir.1995) (en banc).
6
Document Number: 67400 

qualified immunity, the Court may insist that a plaintiff file a reply pursuant to Federal Rule
of Civil Procedure 7(a) tailored to an answer pleading the defense of qualified immunity.28
“The district court need not allow any discovery unless it finds that plaintiff has supported
his claim with sufficient precision and factual specificity to raise a genuine issue as to the
illegality of defendant's conduct at the time of the alleged acts.”29
C. Analysis
Plaintiff’s allegations fail for a number of reasons. First, Warden Vannoy is correct
that he may only be liable to Plaintiff under Section 1983 if he was personally involved in
the conduct allegedly causing the constitutional violation, or if there exists a causal
connection between Warden Vannoy’s conduct and the alleged constitutional violation.
The Fifth Circuit has held that, in a claim asserted under Section 1983, “[a] plaintiff must
establish that the defendant was either personally involved in the deprivation or that his
wrongful actions were causally connected to the deprivation.”30 It is undisputed that
Plaintiff has not alleged personal involvement in the microwave incident on the part of
Warden Vannoy.
Next, Plaintiff fails to demonstrate the violation of a clearly established statutory or
constitutional right of which a reasonable person would have known regarding the
placement of a microwave, without a use policy or greater supervision, in a prison

28

Id. at 1433–34.
Id.
30
James v. Texas Collin County, 535 F.3d 365, 373 (5th Cir. 2008)(citing Anderson v. Pasadena Indep.
Sch. Dist., 184 F.3d 439, 443 (5th Cir. 1999)).
7
Document Number: 67400 
29

dormitory. Plaintiff argues that his constitutional right to be free from cruel and unusual
punishment includes:
the right to not be placed in a situation where an item placed within a prison
dormitory by prison officials would not be used in a manner so as to cause severe
harm. Prison officials should reasonably know that the item at issue (a microwave
oven) in its normal and ordinary operation can be used to cause great bodily harm
if there are no rules or limits placed on the use of that item. This right is
particularized, and the facts alleged in this matter establish a violation of this
constitutional right.31
Plaintiff somewhat undermines his own argument, stating:
Although the Plaintiff acknowledges that the Louisiana Department of
Corrections and Warden Vannoy have taken effort to keep harmful items
out of the hands of inmates, the Plaintiff contends that these efforts were
diminished with the discretionary placement of a microwave oven inside of
the dormitory of the inmates without established rules for its usage.32
The Court must determine whether the allegedly violated constitutional right was
clearly established within the particular context of the case.33 The Court acknowledges
that whether a right is clearly established does not mean that a plaintiff must cite “a case
directly on point, but existing precedent must have placed the statutory or constitutional
question beyond debate.”34 Although Plaintiff need not cite a case specific to microwaves,
Plaintiff fails to direct the Court to any precedent whatsoever demonstrating that it is
clearly established that the placement of a similar appliance or item in a prison dormitory,
without rules for use, violates the Eighth Amendment, such that any reasonable
corrections officer would know of the alleged risk.

31

Rec. Doc. No. 15, p. 3.
Id. at p. 4.
33
Saucier v. Katz, 533 U.S. at 201.
34
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
32

Document Number: 67400 

8

Additionally, with respect to supervisory liability, Plaintiff has not alleged any
previous incidents regarding microwave or appliance usage in the dormitories which
would have alerted Warden Vannoy to the risk alleged herein.35 If such incidents existed,
Plaintiff would similarly have to allege facts supporting the inference that Warden Vannoy
had notice of these incidents and the accompanying risk but was deliberately indifferent
to the known risk. No such allegations are made.
Finally, even if Plaintiff could establish the violation of a constitutional right, Plaintiff
has utterly failed to overcome Warden Vannoy’s assertion of qualified immunity. Plaintiff
cites general case law on the doctrine but fails to direct the Court to any jurisprudence
whatsoever that would undermine the application of the defense of qualified immunity
under similar facts.

Once asserted, it is Plaintiff’s burden to demonstrate why the

Defendant is not entitled to the defense.36 Plaintiff has simply not done so here.

35

The same is true regarding the speculative alleged lack of appropriate staffing.
“Where a public official invokes qualified immunity as a defense to a civil action against him, the plaintiff
has the burden of establishing a constitutional violation and overcoming the defense.” Carney v. New
Orleans City, 468 F.Supp.3d 751, 759 (E.D. La. 2020)(citing Jackson v. Texas, 959 F.3d 194, 201 (5th Cir.
2020) (citing McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc))). “A court must
determine that a plaintiff's pleadings ‘assert facts which, if true, would overcome the defense of qualified
immunity.’” Id. at 760 (quoting Zapata v. Melson, 750 F.3d 481, 485 (5th Cir. 2014). “A plaintiff seeking to
overcome qualified immunity ‘must plead specific facts that both allow the court to draw the reasonable
inference that the defendant is liable for the harm he has alleged and that defeat a qualified immunity
defense with equal specificity.’” Id. (quoting Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012)).
9
Document Number: 67400 
36

III.

CONCLUSION
Accordingly, because leave to amend is futile in the Court’s view, the Court’s

previous Ruling37 granting the Defendants’ Rule 12(b)(1) and 12(b)(6) Motion to Dismiss38
shall stand, as supplemented by this Order.
Judgment shall be entered accordingly.
IT IS SO ORDERED.
Baton Rouge, Louisiana, this 21st day of May, 2021.

S

________________________________
SHELLY D. DICK
CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

37
38

Rec. Doc. No. 11.
Rec. Doc. No. 7.

Document Number: 67400 

10