Mitchell v. Starks et al

Filing 61

RULING AND ORDER denying 41 Motion for Summary Judgment. Signed by Judge Brian A. Jackson on 11/17/2022. (EDC)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
HASSON MITCHELL CIVIL ACTION

VERSUS
STATE OF LOUISIANA, ETAL. NO. 20-00470-BAJ-SDJ

RULING AND ORDER
Plaintiff is an inmate at the Elayn Hunt Correctional Center ("EHCC") in St.
Gabriel, Louisiana. He alleges that on December 21, 2017 he protested a correctional
officer s mistreatment of a fellow inmate, prompting the same officer to handcuff him,
mace him, and forcibly "throw him into the shower, causing him to trip over a
concrete partition, fall, and suffer multiple broken bones.

Plaintiff seeks damages from the offending officer—Defendant Lt. Alien
Stark—alleging constitutional claims of excessive force and retaliation, and state law
claims of negligence and battery. Plaintiff also seeks recovery from Lt. Stark's

employer—Defendant Louisiana Department of Public Safety and Corrections
( LDPSC )—asserting that LDPSC is vicariously liable for Lt. Stark s state law torts.
Now before the Court is Defendants' Motion For Summary Judgment (Doc.
41). Plaintiff opposes Defendants' Motion. (Doc. 43). For the reasons stated herein,

Defendants Motion will be denied and Plaintiffs claims will be submitted to a jury.

I. BACKGROUND
A. Summary Judgment Evidence
The facts set forth below are drawn from Defendants Statement Of
Uncontested Facts (Doc. 1-2; Doc. 41-8, <(SOF"), Plaintiffs Response To Statement Of

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Facts (Doc. 43-12, "Response SOF"), the parties' joint Pre-Trial Order (Doc. 50,

PTO ), and the record evidence submitted in support of these pleadings.1
On December 21, 2017, Lt Stark and three additional correctional officersnon-parties Col. Brent Thompson, Capt. Donald Johnson, and Lt Eric Laneresponded to reports of "an offender breaking glass" in EHCC's "Fox 7" yard. (Doc.

41-2 at If 2; Doc. 41-3 at UK 2-4). Upon arriving at Fox 7, Lt. Stark approached inmate
Thomas Miller—the offender allegedly responsible for the broken glass—"to remove
him from Fox 7." (Doc. 41-2 at ^ 4).

Plaintiff and multiple other inmates were also in the Fox 7 yard at the time.

1 Plaintiff encourages the Court to treat the allegations set forth in his original un-verified
complaint as summary judgment evidence, based on a subsequent letter to counsel in which
he states, I declare under the penalty of perjury that the facts stated are true and correct in
my ARP and in my lawsuit. (Doc. 43-1). "A plaintiffs verified complaint can be considered
as summary judgment evidence to the extent that it comports with the requirements of Fed.
K Civ. P. 56." King v. Dogan,, 31 F. 3d 344, 346 (5th Cir. 1994).
Here, there are two problems with Plaintiffs purported verification. First, it comes
three years after Plaintiffs complaint, and Plaintiff cites no authority that allows the Court
to effectively convert an unverified complaint to competent summary judgment evidence
based on an after-the-fact verification. Second, Plaintiffs purported verification is deficient
because it does not state that it is made on personal knowledge, and- does not specify what
Plaintiff means by my lawsuit. Further, Plaintiffs ARP" is not part of the summary
judgment record. Thus, Plaintiffs verification fails the specificity requirements set forth at
Rule 56(c). See Guzman v. Allstate Assurance Co., 18 F.4th 157, 161 (5th Cir. 2021) ("Selfserving affidavits and declarations, like all summary judgment evidence, must "be made on
personal knowledge, set out facts that would be admissible in evidence, and show that the
affiant or declarant.is competent to testify on the matters stated. Fed. R. Civ. P. 56(c)(4).
And these facts must be particularized, not vague or conclusory.").

The Court will not excuse these deficiencies when, as here, Plaintiff is represented, by
counsel. Accordingly, for now, the Court disregards the allegations set forth in Plaintiffs
complaint and his "ARP." In any event, Plaintiff is not prejudiced by this ruling, because
sufficient additional evidence exists to create a material dispute defeating summary
judgment.

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Inmate Dwayne Miller—Thomas Miller's cousin—witnessed Lt. Stark's encounter

with Inmate Miller, and saw Lt. Stark "punching[,] kicking and stomping" him. (Doc.
43-6 at p. 1; see also Doc. 43-8 at p. 1)). Eventually, Lt. Stark placed Inmate Miller in

handcuffs, and escorted him out of the yard. (Doc. 41-2 at ^[ 4).
Plaintiff also witnessed Lt. Stark's encounter with Inmate Miller, and
attempted to intervene. Fellow inmate Cleveland Bell recalls that Plaintiff was calm,
telling Lt. Stark "that he didnt have to treat him [Inmate Miller] like that," and
thereafter telling Capt. Johnson (in Lt. Starks presence) "that he had no problem,
and ... was just trying to get Lt. Stark to stop using excessive force, because [Lt.
Stark] was clearly doing too much. (Doc. 43-8 at p. 1). By contrast, Capt. Johnson
remembers Plaintiff being unruly," "yelling, and encouraging other offenders to
"jump on" Lt. Stark, saying "Man we are going to beat Lt. Stark's a**," and "Man y'all
some b******. Let's get this mother ffr****." (Doc. 41-2 at n 4-6).

Perceiving a threat, Capt. Johnson "immediately ordered [Plaintiff] to place
his hand [sic] behind his back to be handcuffed. (Doc. 41-2 at K 4). Plaintiff
complied. (Id. at ^ 7). Then, Capt Johnson ordered Lt. Lane "to escort [Plaintiff] to
Administrative Segregation, also known as Beaver 5. (Id. at H 8).
Lt. Lane followed Capt. Johnson's command, and recalls that Plaintiff "was
acting unruly" <([d]uring the entire transport from Fox 7 to Beaver 5/) (Doc. 41-3 at

^ 5). Significantly, however, Lt Lane provides no description of Plaintiff s "unruly"
behavior, or any indication that Plaintiffs behavior caused a disturbance, impeded

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Lt. Lanes ability to escort Plaintiff to Beaver 5, or necessitated a forceful response.

(See id. at n 3-5).
Lt. Stark met Lt. Lane and Plaintiff in Beaver 5's main lobby. {Id. at ^f 6-7).
Lt. Stark took control of Plaintiff—who remained handcuffed—at which point Lt
Lane immediately "exited." (Id. at ^ 6-7). After Lt. Lane left, Lt Stark led Plaintiff
to the Beaver 5 segregation unit, where they were observed by two additional
correctional officers—Master Sergeants Kendrick Williams and Carmen Dowdy—and
two additional inmates—Shane Chesne and Travis Dunn.

Sgt. Williams was in the Beaver 5 interlock" when he observed Lt Stark
"[come] in the door with [Plaintiff]." (Doc. 41-4 at If 2). Sgt. Williams recalls that
Plaintiff was in handcuffs," and was being combative"—i.e., physically resisting"

and refusing all orders that [Lt. Stark] was giving him." (Id. at Iflf 4-5). Sgt Williams
also remembers that he "heard Plaintiff tell [Lt. Stark], 'I'm going to get you/' (Id. at
T[ 6). Then, Sgt Williams "reached down to grab a set of full restraints when [he]
heard a loud noise." (Doc. 41-4 at If 3). Apparently, Lt. Stark had "take[n] [Plaintiff]
to the ground ... to get him under control so that Plaintiff would not harm himself,
other offenders or security staff. {Id. at If 7). Notably, Sgt. Williams does not state
that he witnessed Lt. Stark take Plaintiff to the ground." (See id.).
Sgt. Williams further states that after Lt. Stark took Plaintiff to the ground,
he (Sgt. Williams) "exited Beaver 5 Interlock and opened C-Tier to allow access to the
shower, at which point Lt. Stark escorted- [Plaintiff] into the shower." (Doc. 41-4 at

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1H[ 8-9). After Lt. Stark "escorted Plaintiff into the shower, Sgt. Williams recalls
removing Plaintiffs handcuffs and ordering Plaintiff to submit to a strip search. (Id.
at ^ 10-11). Plaintiff initially refused, but he eventually complied, submitting to a
search conducted by Lt. Stark. (Id. ^\ 11).
Sgt. Dowdy corroborates Sgt. Williams' account, to a point. Sgt. Dowdy was

also in the "Beaver 5 Interlock when [she] observed [Lt. Stark] enter ... with
Plaintiff, who "was acting irate and using profanity." (Doc. 41-5 at ^ 2-3). Sgt.
Dowdy heard Plaintiff "state in a loud, boisterous tone, 'I'm not going in the shower'"
—even after Lt. Stark "ordered him several times to do so"—and saw Plaintiff "turn

his body away from [U. Stark] while [Lt. Stark] was attempting to escort him into
the shower. (Id. at UK 4-5). Even so, Sgt. Dowdy "did not witness when [Lt. Stark]
took [Plaintiff] to the ground." {Id. at H 6).
Inmates Chesne and Dunn offer accounts that are generally consistent with

the statements of Sgts. Williams and Dowdy. Each, however, provides additional
detail that frames Lt Stark's actions in a substantially different light. Inmate Chesne
states:

I saw [Lt. Stark] bring [Plaintiff] in the lobby of Beaver #5 handcuffed[,]
at which time [Plaintiff] started screaming that they was [sic] hurting
him. After a few minutes ... Lt. Stark threw [Plaintiff] in the shower[,]
sprayed him with mace and told him to shut the f*** up before they kick
his a** some more. [Plaintiff] laid on the floor crying for medical help ...
at which time he started using the bathroom on his self [sic].
(Doc.43.7atp. 1).

Inmate Dunn offers a similar account, with additional detail:

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I ... was housed in Beaver 5 ... when I saw Lt. Stark dragging and

punching [Plaintiff] up the walk into Beaver 5 unit.... They then threw
[Plaintiff] in the shower halfway while he was handcuffed behind his
back. He [Plaintiff] had no way to brace his fall. He [Plaintiff] landed on
the 1 foot tall, 1 foot wide concrete partition that you have to step over
to enter the shower. I heard him scream in pain and complain about his

back and arm that he landed on, telling Lt. Stark after he threw him
that lie think [sic] he broke something. They told him nothing is wrong
with him and drug him the rest of the way into the shower. Lt. Stark
continued to assault [Plaintiff] in the shower with restraints. I heard the
audible noises of the assault as well as [Plaintiff] begging them to stop.
Lt. Stark deployed chemical agents onto him while he was laying down
restraining in the shower.
(Doc. 43-9 at p. 1).

The next day (December 22) Plaintiff sought medical attention from EHCC
medical staff. Plaintiffs certified medical records show that he complained of "an
altercation" with a "C/0" that resulted in "[left] wrist pain," "facial and lower back
pain, incontinence, and other symptoms." (Doc. 43-11 at p. 70). EHCC medical staff
braced Plaintiff with a C-collar, and arranged for ambulance transport to the

emergency room at Our Lady of the Lake Regional Medical Center (OLOL), where
Plaintiff was admitted and diagnosed with a broken wrist. (Id. at pp. 66, 70). OLOL
staff also observed an "age-indetemiinate fracture of [Plaintiffs] left L2" vertebrae.
(Id. at p. 67; see also Doc. 43-4 at pp. 1-2).

OLOL records reflect that Plaintiffs initial "complaint" to OLOL emergency
staff was consistent with Plaintiffs complaint to EHCC medical staff:
Mr. Mitchell [Plaintiff] is a 38 yo man with no significant PMH who was
brought in from prison after being assaulted yesterday around 3pm.

Patient reports his head was slammed against a wall and he was thrown
on the ground and kicked. Endorses LOG for unknown amount of time. '

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Complains of generalized headache associated with blim'y vision and
worsened with photophobia. Complains of left facial pain, neck pain, rib
pain, lower back pain, and left wrist pain. States he tried to walk this
morning but had too much pain. Pain improved with rest.
(Doc. 43-4 at p. 2).

Plaintiffs medical records reflect that he complained of ongoing pain for
months after his December 21 encounter with U. Stark. (See generally Doc. 43-11).
Another inmate—Cleveland Bell—states that after the December 21 altercation,

Plaintiff "looked like he'd been in some bad accident. His face was badly swollen on
one side, and he had to use a wheelchair for awhile [sic]." (Doc. 43-8 at p. 1).
Notably absent from the summary judgment record is any account from Lt.

Stark regarding the events of December 21,2017.
B. Procedural History
Plaintiff initiated this action in the Eighteenth Judicial District Court for the
Parish oflberville, Louisiana, naming Lt. Stark and LDPSC as Defendants. (Doc. 12). Against Lt Stark, Plaintiff alleges claims of unlawful retaliation in violation of
the First Amendment and excessive force in violation of the Eighth Amendment, and
state law claims of negligence and battery. (Doc. 1-2 at fl 49-51, 53-60). Against
LDPSC, Plaintiff alleges respondeat superior liability for Lt Stark's state law torts.
LDPSC removed Plaintiffs action to this Court, asserting federal question
jurisdiction. (Doc. 1). Now Defendants jointly move for summary judgment, arguing
(1) Plaintiffs constitutional claims fail because Lt. Stark is shielded by qualified
immunity (Doc. 41-1 at pp. 6-18); Plaintiffs negligence and battery claims fail because

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Lt. Stark followed EHCC policy and employed appropriate force "to obtain control of
the situation, (id. at pp. 18-21); and (3) in turn, Plaintiffs respondeat superior claim
fails because Plaintiff cannot prove that Lt. Stark is liable for any negligence," {id.
at p. 20). Plaintiff opposes Defendants' Motion. (Doc. 43).

II. ANALYSIS
A. Standard
The summary judgment standard is well-set: to prevail, the moving party must

show that there is no genuine dispute as to any material fact and that it is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). In making this assessment, the

Court must view all evidence and make all reasonable inferences in the light most
favorable to the non-moving party. Owens v. Circassia Pharms., Inc., 33 F.4th 814,

824 (5th Cir. 2022).
Importantly, at summary judgment, it is not the Court s function ... to weigh

the evidence and determine the truth of the matter but to determine whether there
is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

It follows that "[c]redibility determinations have no place in summary judgment
proceedings." Richardson v. Oldham, 12 F.3d 1373, 1379 (5th Cir. 1994).
Equally important, whether moving for or against summary judgment, a
party s evidence "must be particularized, not vague or conchisory." See Gnzman v.

Allstate Assurance Co., 18 F.4th 157, 161 (5th Cir. 2021). "[Sjpeculation, improbable
inferences, or unsubstantiated assertions" will not carry the day. Jones v. United

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States, 936 F.3d 318, 321 (5th Cir. 2019) (quotation marks omitted).
B. Discussion

1. U. Stark is not entitled to qualified immunity from
Plaintiffs constitutional claims
The doctrine of qualified immunity shields a government official performing
discretionary functions from civil damages liability, provided his complained of
actions meet the test of objective legal reasonableness/" Staten v. Tatom, 465 F.

App'x 353, 357 (5th Cir. 2012) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 819
(1982)). "We assess the 'objective reasonableness' of an officer's actions in light of the
particular circumstances and the legal rules clearly established' at the time the
officer's actions were taken. Id. (quoting Anderson v. Creigkton, 483 U.S. 635, 639

(1987)).
In practice, the two-pronged test for qualified immunity asks (1) "whether the
facts, viewed in the light most favorable to the party asserting the injury, show that
the officials conduct violated a constitutional right," and (2) "whether the right was
'clearly established."' Cunningham v. Castloo, 983 F.3d 185, 190-91 (5th Cir. 2020).
A court may analyze these prongs in either order, and resolve the case on a single
prong. Id. at 190.

Critically, (<[a] qualified immunity defense alters the usual summary judgment
burden of proof," because (<[o]nce a government official asserts [qualified immunity],
the burden shifts to the plaintiff to rebut the defense." Bonrne v. Gunnels, 921 F. 3d

484, 490 (5th Cir. 2019) (quotation marks omitted); see also Collier v. Montgomery,

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569 F.3d 214, 217 (5th Cir. 2009) ("Although nominally an affirmative defense, the
plaintiff has the burden to negate the assertion of qualified immunity once properly
raised."). Still, however, "all inferences are drawn in the plaintiffs favor." Bourne,

921 F.3d at 490 (quotation marks and alterations omitted).
a. Excessive Force

Plaintiff contends that Lt Stark used excessive force when he threw himhandcuffed and not resisting—into the shower, then maced him and continued to
assault him.

It is clearly established that the Eighth Amendment protects prisoners from
the unnecessary and wanton infliction of pain at the hand of prison officials. Hudson
v. McMillian, 503 U.S. 1, 5 (1992) (quotation marks omitted). When, as here, a prison
official invokes qualified immunity to defend against a prisoner's claim of excessive
force, "the core judicial inquiry is 'whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadistically to cause harm/"

Bourne, 921 F.3d at 491 (quoting Hudson, 503 U.S. at 6-7).
Courts analyze (1) the extent of the injury suffered, (2) the need for the
application of force, (3) the relationship between that need and the
amount of force used, (4) the threat reasonably perceived by the
responsible officials, and (5) any efforts made to temper the severity of
a forceful response.

The amount of force that is constitutionally permissible must be judged
by the context in which that force is deployed. Courts must decide
excessive force claims based on the nature of the force rather than the

extent of the injury. An inmate need not establish a significant injury to
pursue an excessive force claim because injury and force are only

imperfectly correlated, and it is the latter that ultimately counts.

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Bonrne, 921 F.3d at 491-92 (alteration, quotation marks, and citations omitted).

Viewed in the light most favorable to Plaintiff, and drawing all reasonable
inferences in Plaintiffs favor, the sum of the summary judgment evidence establishes
the following: On December 21 Plaintiff observed Lt Stark forcibly remove Inmate
Miller from the Fox 7 yard. Plaintiff attempted to intervene, creating the potential
for a broader disturbance among the other inmates in the Fox 7 yard, but nonetheless

promptly complied when Capt. Johnson ordered him to place his hands behind his
back to be handcuffed. Thereafter, Lt. Lane removed Plaintiff (handcuffed) from the
Fox 7 yard to the Beaver 5 lobby without any appreciable difficulty.
Once in Beaver 5, Lt. Stark took over. Plaintiff verbally and physically resisted
Lt. Stark, and, according to Capt Johnson, Lt. Stark took Plaintiff to the ground to
gain control over the situation (though Capt. Johnscm did not see this first takedown).
After this initial takedown, Plaintiff submitted to Lt. Stark s control and allowed Lt.
Stark to "escort him to the shower without further resistance. Nonetheless, despite

Plaintiffs compliance, Lt. Stark threw Plaintiff (still handcuffed) into the shower
area, causing Plaintiff to trip over the concrete partition, fall, and break his left wrist
(and possibly his back). As Plaintiff was crying out in pain, U. Stark sprayed him
with mace, continued to beat him, and told him to shut the f*** up before they kick
his a some more.

The Court assumes for present purposes that Lt. Stark's initial takedown was
a constitutionally permissible "good-faith effort to maintain or restore discipline." See

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Bourne, 921 F.3d at 491 (quoting Hudson, 503 U.S. at 6m7). Lt. Stark's subsequent
acts are another matter. First, of course, Plaintiff suffered substantial injuries—a

broken wrist and possibly a broken back. Second, Lt. Stark had already gained
Plaintiffs compliance when he threw Plaintiff into the shower, maced him, and beat
him, eliminating the need for additional force. This inference naturally follows from
Capt. Johnson's account, which conspicuously omits any indication that Plaintiff
resisted as Lt. Stark escorted [him] into the shower. Third, without any need, Lt.
Stark nonetheless applied substantial force, "throwing Plaintiff hard enough that he
stumbled and tripped over a known and obvious hazard (the concrete partition), and
thereafter beating Plaintiff. Fourth, there is no evidence that when Lt Stark
reasonably perceived an ongoing threat when brought Plaintiff to the shower. In fact,

the available evidence reasonably suggests the opposite—that Plaintiff was not a
threat: Plaintiff had been removed from the Fox 7 yard (where he might have created
a disturbance among the other inmates), and had submitted to Lt. Stark s control.

Fifth, there is also no evidence that after the initial takedown and before throwing
Plaintiff into the shower, Lt Stark attempted to temper the severity of his actions.
Indeed, it appears that Lt. Stark escalated his response even after throwing Plaintiff
into the shower, by deploying mace and beating Plaintiff when he on the ground,
crying out in pain.

On this record, and absent any account from Lt. Stark, Plaintiff has plainly
produced enough evidence to rebut Lt Stariks qualified immunity defense and

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establish a genuine contest regarding whether Lt. Stark acted maliciously and
sadistically to cause harm when he threw Plaintiff—handcuffed and no longer
resisting—into the shower, and thereafter assaulted him. See Bourne, 921 F.3d at

491 (quoting Hudson, 503 U.S. at 6-7); e.g. id. 921 F.3d at 492-93 (contested issues
of fact defeated defendants qualified immunity defense to excessive force claim where
the parties offered "competing versions of what occurred during the use of force and

whether defendants applied force after [plaintiff) stopped resisting and was
restrained [with handcuffs]"); Rankin v. Klevenhagen, 5 F.3d 103, 105 (5th Cir. 1993)
(summary judgment evidence sufficiently established excessive force where prison
guard placed [plaintiff) in a compliance hold/ slammed him against a wall and the
jail's floor, handcuffed him and stomped' on his back and legs"); Cf. Cowart v. Erwin,
837 F.3d 444, 454 (5th Cir. 2016) (rejecting defendant's qualified immunity defense
and affirming jury s excessive force verdict where defendant punched plaintiff twice
in the face after plaintiff was restrained and non-threatening"; "We have little
difficulty concluding that in 2009, the time of the incident, it was well-established, in
sufficiently similar situations, that officers may not 'use gratuitous force against a
prisoner who has already been subdued ... [or] incapacitated/").2

2 See also Perez v. Collier, No. 20-20036, 2021 WL 4095263, at *4 (5th Cir. Sept. 8, 2021)
(Under Perez's version of the facts, he was handcuffed and complying with the officials'
orders to return to his cell when they punched him, gouged his eye, and twisted his fingers.
All reasonable officials in these circumstances would have known that this conduct violated
Perez's Eight Amendment rights."); Chacon v. York, 434 F. App'x 330, 332 (5th Cir. 2011)
(By declaration made under penalty of perjury, Chacon asserted that Deputy York used
unnecessary force against him without provocation and that he suffered a laceration above
his right eyelid requiring at least one stitch and a staple. ... Because it is not possible to

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In sum, on December 21, 2017, Plaintiff maintained a clearly established right
to be free from "the unnecessary and wanton infliction of pain" at the hands of Lt.
Stark. Hudson, 503 U.S. at 5. An officer confronted with the same circumstances
presented here would have known that it was unlawful to forcibly throw a restrained
compliant prisoner towards a known hazard and thereafter mace him and beat him
when he was in a prone position. Yet, here an evidentiary basis exists to conclude

that this is exactly what happened. Accordingly, Lt Stark's qualified immunity
defense fails, and Plaintiffs excessive force claim must be submitted to the jury.
b. Retaliation
Plaintiffs retaliation claim is interwoven with his excessive force claim.
Specifically, Plaintiff contends that Lt. Stark threw him into the shower to "punish"
him for having complained to ranking officers about... [Lt. Stark] beating... Inmate
Miller." (Doc. 43 at pp. 12, 17).

The law of this circuit is clearly established ... that a prison official may not
retaliate against ... an inmate for ... complaining to a supervisor about a guard's

misconduct." Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995).
To state a valid claim for retaliation under section 1983, a prisoner must

allege (1) a specific constitutional right, (2) the defendant's intent to retaliate against

conclude as a matter of law, considering the evidence in the light most favorable to Chacon,
that York acted in an objectively reasonable manner-which would entitle him to qualified
immunity-the district court erred in granting the motion for summary judgment for York on
the excessive force claim/').

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the prisoner for his or her exercise of that right, (3) a retaliatory adverse act, and (4)
causation." Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999).

Again, viewing all evidence and making all reasonable inferences in Plaintiffs
favor, Plaintiff overcomes qualified immunity. First, as stated, the Constitution
protects an inmate's right to "complainQ to a supervisor about a guard's misconduct."

Woods, 60 F.3d at 1164. Here, Plaintiffs December 21 encounter with Lt. Stark began
when Plaintiff objected to Lt Stark's treatment of Inmate Miller. According to Inmate
Bell, Plaintiffs objection was calm and included complaining to Capt Johnson—a
higher ranking officer—in Lt. Stark's presence that "Lt. Stark [was] using excessive
force. Capt. Johnson, on the other hand, states that Plaintiff was unruly" and

attempt[ing] to motivate a disturbance. Plainly, a material dispute exists regarding
whether Plaintiff was engaged in a constitutionally protected complaint, or an
unprotected attempt to provoke an insurrection. Cf. Jackson v. Cain, 864 F.2d 1235,

1248 (5th Cir. 1989) ("A prison inmate is entitled to his First Amendment right to
freedom of expression so long as it is not inconsistent with his status as a prisoner
and does not adversely affect a legitimate state interest/').
Second, the evidence establishes a genuine dispute regarding whether Lt.

Stark was motivated by retaliatory intent. Again, Inmate Bell states that Plaintiff
made his complaint to Capt. Johnson in Lt. Stark s presence. Sgt. Williams states

that minutes later Lt. Stark took Plaintiff to the ground then escorted him (without
incident) to the shower. Inmates Chesne and Dunn, by contrast, state that Lt. Stark

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threw Plaintiff into the shower when Plaintiff was compliant and no longer resisting,
sprayed him with mace, beat him, and "told him [to] shut the f*** up before they kick
his a some more. (Doc. 43-7 at p. 1; see also Doc. 43-9 at p. 1). It is not the Court's
role here to decide between these conflicting accounts.

Third, a dispute exists regarding whether Lt Stark took a retaliatory adverse
act against Plaintiff. An actionable retaliatory act is any act "capable of deterring a
person of ordinary firmness from further exercising his constitutional rights." Morris

v. Powell, 449 F.3d 682, 686 (5th Cir. 2006). Such acts specifically include acts that
endanger the health or well-being of an inmate. See id. at 687 ("There is no doubt
that transfer to a more dangerous prison as a penalty for the exercise of constitutional

rights has the potential to deter the inmate from the future exercise of those rights.").
Here Lt. Stark is alleged to have forcibly thrown Plaintiff into the shower while
Plaintiff was handcuffed, maced him, and beat him, causing serious bodily harm.
Subjected to the same treatment, "a person of ordinary firmness" certainly would be
deterred from exercising his right to complain ofLt. Stark's conduct again.
Finally, a dispute exists regarding causation. Causation requires "direct
evidence of motivation or, the more probable scenario, ... a chronology of events from
which retaliation may plausibly be inferred." Woods, 60 F.3d at 1166. Here, a matter

of minutes passed between when Plaintiff complained to Capt. Johnson ofLt. Stark's
treatment of Inmate Miller, and Lt. Stark's alleged aggression in the shower. This

tight timeline coupled with Lt. Stark's alleged threat "to shut the f*** up before they

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kick his a** some more" establishes a plausible basis to conclude that Plaintiffs
complaint to Capt. Johnson was the but for cause ofLt. Stark's alleged aggression.

In sum, on December 21, 2017, Plaintiff also enjoyed a clearly established right
to complainQ to a supervisor about a guard's misconduct without fear of reprisal.
Woods, 60 F.3d at 1164. An officer confronted with the same circumstances presented
here would have known that it was unlawful to physically injure—i.e., "punish" —a
prisoner for properly complaining of his misconduct. Yet, again, there is an

evidentiary basis to conclude that this is exactly what happened. Accordingly, Lt.
Stark s qualified immunity defense again fails, and Plaintiffs retaliation claim also
must be submitted to the jury.
2. A substantial dispute exists regarding Plaintiffs state
law claims
Defendants' challenge to Plaintiffs state law negligence claim is easily
dispatched. Louisiana employs the "duty-risk analysis" to determine liability for
negligence under La. C.C. art. 2315. Landers v. U SIC Locating Ser vs., Inc., 2020-0890

(La. App. 1 Cir. 4/26/21), 324 So. 3d 1070, 1073.
For liability to attach under a duty-risk analysis, a plaintiff must prove
five separate elements: (1) the defendant had a duty to conform his
conduct to a specific standard of care (or the defendant owed a duty of

care to the plaintiff) (the duty element); (2) the defendant failed to
conform his conduct to the appropriate standard (or breached the
requisite duty) (the breach element); (3) the defendant's substandard
conduct was a cause-in-fact of the harm or the plaintiffs injuries (the

cause-in-fact element); (4) the risk of harm was within the scope of
protection afforded by the duty breached (the scope of the duty, scope of
protection or legal cause element); and (5) actual damages (damages
element)

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Id.

Here, as set forth above, Lt Stark owed Plaintiff constitutional duties to
refrain from retaliation and malicious infliction of pain. Lt. Stark also owed Plaintiff
state law duties to refrain from corporal punishment, La. R.S. § 15:829, and "to use
reasonable care in preventing harm after [he] had reasonable cause to anticipate it."
Breaux v. State, 326 So. 2d 481, 482 (La. 1976). A genuine contest exists regarding

whether Lt. Stark violated these duties by throwing Plaintiff (while handcuffed) into
the shower, causing Plaintiff to trip over a known hazard (the concrete partition), and
then assaulted him, in order to punish Plaintiff for complaining of his prior treatment
of Inmate Miller, resulting in multiple broken bones (wrist and back).
Essentially the same evidence creates a genuine dispute regarding Plaintiffs
battery claim.

The intentional tort of battery is a harmful or offensive contact with a
person, resulting from an act intended to cause the plaintiff to suffer
such a contact. The defendant's intention need not be malicious nor need

it be an intention to inflict actual damage. It is sufficient if the defendant
intends to inflict either a harmful or offensive contact without the
other's consent. In order to prove a prima facie case in an action for

damages allegedly caused by the tortious conduct of the defendant, the
plaintiff must prove three things: fault, causation, and damages.
Zimmerman v. Progressive Sec. Ins. Co., 49,982 (La. App. 2 Cir. 8/12/15), 174 So. 3d

1230, 1235, writ denied, 2015-1955 (La. 11/30/15), 184 So. 3d 36.
Here, as stated, a genuine dispute exists regarding whether Lt. Stark

deliberately and maliciously threw Plaintiff into the shower and then beat him,
intending to punish him for making a complaint, resulting in immediate and

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substantial injuries. Further, a genuine dispute exists regarding whether Plaintiff
tacitly consented" to the battery—by continuing to resist Lt Stark even after the
initial takedown—or whether Plaintiff had, by that point, already submitted to Lt.
Starts control. See Gidllot v. Guillot, 2014-364 (La. App. 3 Cir. 12/23/14), 161 So. 3d
841, 850 (explaining that the plaintiffs consent is a defense to intentional battery).
It follows that LDPSC s sole objection to respondeat superior liability—that Lt.
Stark committed no tortious acts (Doc. 41 at ^[ 7; see Doc. 41-1 at p. 18-21)—also

fails. Plainly, the same evidence establishing a substantial dispute regarding Lt.
Starks liability for negligence and battery also establishes a substantial dispute
regarding LDPSC's vicarious liability as Lt. Stark s employer. See La. C.C. art. 2317;
Breaux, 326 So. 2d at 482 ("the state is ... liable for its employee's failure to use
reasonable care in preventing harm after they had reasonable cause to anticipate

it."); cf. Hughes v. Savell, 902 F.2d 376, 379 (5th Cir. 1990) ("Although the state does
not insure inmates against personal attacks, the state is responsible when its

employees fail to use reasonable care to protect inmates from injuries inflicted by
other prisoners which the authorities know or have reason to anticipate will occur. ...

Those cases which do consider the responsibility of individual state prison employees
routinely impute the employee's negligence to the state for purposes of assigning

liability."); see also Payne v. Tonti Realty Corp., 04-752 (La. App. 5 Cir. 11/30/04), 888
So. 2d 1090, 1094 ("An employer may be vicariously liable for the intentional acts of
its employees." (citing La. C.C. art. 2320), writ denied 2005-0192 (La. 4/1/05), 897 So.

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2d 606.

HI. CONCLUSION
Accordingly,
IT IS ORDERED that Defendants' Motion For Summary Judgment (Doc.
41) be and is hereby DENIED.
Baton Rouge, Louisiana, this ^_^ day of November, 2022

&. a.
JUDGE BRIANA./AdKSON
UNITED STATES STRICT COURT

MIDDLE DISTRICT OF LOUISIANA

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