Lachney v. Gray

Filing 40

REPORT AND RECOMMENDATION re 37 Motion for Summary Judgment filed by Charles Gray, Norman McKellar, Jeffory Kain, and Jennifer McDaniel: IT IS RECOMMENDED that the motion be granted and that all claims against those defendants be dismissed with prejudice. Objections to R&R due by 4/16/2009. Signed by Magistrate Judge Mark Hornsby on 3/30/09. (crt,Cassanova, M)

UNITED STATES DISTRICT COURT W E S T ER N DISTRICT OF LOUISIANA S H R E V EP O R T DIVISION

C H A R L E S LACHNEY VERSUS C H A R L E S GRAY

C I V I L ACTION NO. 07-cv-0398 J U D G E HICKS M A G I S T R A T E JUDGE HORNSBY

R E P O RT AND RECOMMENDATION I n t r o d u c t io n C h a r l e s Lachney ("Plaintiff") filed this pro se civil rights action against officials at t h e Bossier Medium Security Facility, where Plaintiff was housed for approximately eight m o n t h s . Plaintiff alleged in his complaint, as amended, that he was taken off his seizure m e d i c a t io n , denied protective custody or transfer, and subjected to excessive force. T h e court reviewed the complaint, which named several defendants, and directed that P l a i n ti f f file a copy of the complaint and completed summonses for each defendant, so that t h e Marshal could make service. Plaintiff provided a service address at the jail, and service t h e r e was accepted by current employees of the Bossier Parish Sheriff. It was learned that t h e other defendants (Deputy Chancellar, Deputy Carpenter, Deputy Maggio, Dr. Russell, a n d Dr. Roberts) were not known employees of the Bossier Parish Sheriff. Plaintiff was g r a n t e d leave to conduct discovery and learn a proper address for the unserved Defendants.

H e was unable to do so after a reasonable time, so a Report and Recommendation (Doc. 36) i s s u e d and recommended that all claims against those defendants be dismissed without p r e j u d ic e . De fend ants Charles Gray, Norman McKellar, Jeffory Kain, and Jennifer McDaniel h a v e now filed a Motion for Summary Judgment (Doc. 37) that attacks the merits of the a l l eg a t i o n s against them. The Clerk of Court issued a notice (Doc. 38) on December 23, 2 0 0 8 that advised that Plaintiff had 15 calendar days to file any memorandum in opposition to the motion. More than 60 days have passed, but Plaintiff has not filed any memorandum in opposition. Plaintiff did file one submission (Doc. 39), which was docketed as an o b j e c ti o n to the earlier Report and Recommendation, but it could also be liberally construed a s opposition to the motion for summary judgment. The two-page submission is not a c c o m p a n i e d by any competent summary judgment evidence. It merely makes a general plea t h a t the court not drop the suit, and Plaintiff complains that the defendants do not know how to properly run the prison facility. S u m m a r y Judgment Standard Sum mary judgment is proper when the movant can demonstrate that there is no g e n u i n e issue of material fact and that he is entitled to judgment as a matter of law. All facts a n d inferences must be construed in the light most favorable to the non-movant. Kirschbaum v . Reliant Energy, Inc., 526 F.3d 243, 248 (5th Cir. 2008). But where the non-moving party fails to establish the existence of an element essential to that party's case, and on which that

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party will bear the burden of proof at trial, no genuine issue of material fact can exist. M c L a u r i n v. Noble Drilling (US) Inc., 529 F.3d 285, 288 (5th Cir. 2008). Summary Judgment Record J e n n i f e r McDaniel, a nurse at the Bossier facility, testifies about Plaintiff's medical c a r e , and she attaches to her affidavit certified copies of Plaintiff's voluminous medical r e c o r d s from his short stay at the facility. Nurse McDaniel testifies that Plaintiff was given a medical screen for health conditions and medications when he arrived at the facility, and it was noted that he had a history of seizures. Plaintiff was, therefore, assigned a lower bunk b e d . Note was made of the medications Dilantin, Lopid, and Docusate. M c D a n i e l testifies that Plaintiff, during his time at the facility, was seen at least nine t i m e s by the physician, 25 times by a nurse or paramedic, once by a psychologist, once by a dentist, and he had visits to the LSU-HSC ophthalmology clinic. The Bossier medical p e r s o n n e l monitored Plaintiff's Dilantin (anti-seizure medication) level. It was noticed as b e i n g at a sub-therapeutic level, so the physician directed that it be checked again in three w e e k s . The follow-up level was also sub-therapeutic, even though the Dilantin medication h a d been increased. Dr. Roberts then discontinued the Dilantin, as Plaintiff had experienced n o seizure activity with the sub-therapeutic level. (Nurse McDaniel testifies that she lacked autho rity to order the discontinuation of a medication). Captain Charles Gray testifies that P l a i n t i f f was placed on med watch for a time to observe any seizure activity. Once the m e d i c a l condition was validated, Plaintiff was returned to his dormitory. Deputy McKellar

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t e s t if i e s , as did Gray, that Plaintiff was placed on med watch for four days to observe any i n d i c at i o n of a seizure. McKellar, who monitored prisoners from the control room, testifies that Plaintiff was monitored by camera, and no seizure activity was noted. Captain Gray also testifies to the general procedures at the facility for an inmate to re q u e s t medical care. He testifies that he is aware that Plaintiff was seen by medical staff mu ltiple times while he was an inmate at the facility. Gray denies knowledge of any seizures t h a t occurred during that time. With respect to Plaintiff's complaints about not being t r a n sf e r r e d , Gray testifies that the Department of Corrections has a policy that an inmate is n o t considered for transfer if he has a disciplinary write-up within six months of the request. P l a i n ti f f had three disciplinary write-ups during the time of his incarceration in Bossier from July 2006 until his transfer in March 2007. The infractions were for contraband, a weapon, and medication found in his cell. Gray testifies in his Affidavit that at no time did he "physically `slap' Lachney ( P l a in t i f f) and [he] is unaware of any other personnel striking the inmate." When a denial is framed so narrowly, as in the above sentence, courts sometime become concerned that the a f f i a n t is attempting to avoid giving testimony regarding other acts or omissions. Plaintiff a l l eg e d that Gray "slapped" him twice and "punched [him] in [his] head enough to go into a seizure...." Gray's testimony denies only slapping Plaintiff. He does not deny "punching" P l a i n t i f f . Nevertheless, the court will accept the testimony as denying the allegations of

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e x c e s s iv e force with respect to this unopposed motion, but such narrow denials by Gray and sim ilarly situated affiants should be avoided (except where necessary) in future cases. With respect to protective custody, Gray testifies that he is aware that Plaintiff accused o t h e r inmates of attempting to sexually assault him. Gray testifies that an investigation was i n c o n c lu s i v e as to the named inmates and what actually occurred. Based on the investigation, P l a i n ti f f was not placed in protective custody, and no request was ever received for p r o t e c ti v e custody. Plaintiff was transferred one day after an alleged assault by other inmates. De puty McKellar testifies that, during the relevant time, he worked in the control r oo m . It was his responsibility to monitor the area and notify prison staff if assistance was n e e d e d . He states that his only communication with prisoners was to make announcements. M c K e l l ar specifically denies having any physical contact with the prisoners or any respo nsibility for giving medication. He also testifies that, "[a]s a staff member working in t h e Control Room, appearer did not witness or have any knowledge of threats, any incidents r e g a r d in g physical attack, use of excessive force or sexual attack on the inmate." McKellar t e s ti f i es that he did not see Plaintiff struck by Captain Gray or any other personnel at the fac ility. Deputy Jeffory Kain testifies that he was working as a trainee at the facility during the r e l e v an t time. His duties included monitoring hallways and sick call, but he had no a d m i n i s tr a t iv e duties. Kain denies knowledge of Plaintiff ever requesting protective custody

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o r a transfer. He states that if a request had been made, it would have been forwarded to a s u p e r v is o r with authority to act on such matters. Kain denies that he participated in any p h y s ic a l or verbal assaults on any inmate, including Plaintiff. He adds that he did not witness any seizure activity by Plaintiff. Analysis A . Excessive Force A convicted prisoner's excessive force claim is analyzed under the Eighth Am endm ent. It provides a cause of action if the force was applied maliciously and

sadistica lly for the purpose of causing harm, rather than a good-faith effort to maintain or restore discipline. Hudson v. McMillian, 112 S.Ct. 995 (1992). Movants have presented c o m p e t e n t summary judgment evidence that directly challenges the unsworn allegations in Plaintiff's complaint that Plaintiff was subjected to excessive force. Plaintiff has not r e s p o n d e d with summary judgment evidence that would create a genuine issue of material f a c t , so summary judgment is warranted on all excessive force claims. B . Medical Care F o r Plaintiff to prevail on his claim that his medical care violated the Constitution, he m u s t prove that a defendant was "deliberately indifferent" to his "serious medical needs." Hare v. City of Corinth, 74 F.3d 633, 643 (5th Cir. 1996) (en banc). Disagreement with the diagn ostic measures or methods of treatment afforded by prison officials does not state a

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c o n s t i t u t io n a l claim for indifference to medical needs. Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997). T h e summary judgment evidence shows that Plaintiff received frequent medical care f o r a variety of ailments. His primary complaint, the discontinuance of Dilantin, is explained b y Nurse McDaniel to have been at the direction of a physician based on his reasoned m e d i c a l judgment. Other evidence shows that Plaintiff was carefully monitored for four days a f t e r the medicine was discontinued, and no seizures were detected. There is no evidence P l a i n ti f f had any seizures at the facility. Plaintiff's unsworn allegations are insufficient to def eat summary judgment on this claim. C. Protective Custody P l a i n ti f f complains that he should have been given protective custody or transfer. To e s t a b l i s h a failure to protect claim, Plaintiff must show that he was incarcerated under c o n d i t io n s posing a substantial risk of serious harm and that prison officials were deliberately i n d i f fe r e n t to his need for protection. To act with deliberate indifference, the official must b e aware of facts from which the inference could be drawn that a substantial risk of harm e x i s t s , and he must also draw the inference. Farmer v. Brennan, 114 S.Ct. 1970 (1994); N e a l s v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995). Captain Gray testified that he was aware of only one potential basis for which Plaintiff m i g h t need protective custody, but an investigation did not bear out that need. Plaintiff was t r a n sf e r r e d one day after an attack. Those unchallenged facts do not suggest deliberate

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i n d i f fe r e n c e . There is no genuine issue of material fact with regard to this issue, so summary jud gm ent is appropriate. The same is true with respect to any remaining aspects of Plaintiff's complaint. The summ ary judgment evidence offered by the movants directly challenges the allegations in the com plaint, and that evidence has not been met with any competing evidence that would give rise to a genuine issue that requires a trial. Accordingly; I T IS RECOMMENDED that the Motion for Summary Judgment (Doc. 37) filed b y Charles Gray, Norman McKellar, Jeffory Kain, and Jennifer McDaniel be granted and t h a t all claims against those defendants be dismissed with prejudice. O b j e c t io n s U n d e r the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties a g g r i e v ed by this recommendation have ten (10) business days from service of this report and r e c o m m e n d a t i o n to file specific, written objections with the Clerk of Court, unless an e x t e n s io n of time is granted under Fed. R. Civ. P. 6(b). A party may respond to another party's objections within ten (10) days after being served with a copy thereof. Counsel are d i r e c te d to furnish a courtesy copy of any objections or responses to the District Judge at the t i m e of filing. A party's failure to file written objections to the proposed findings, conclusions and r e c o m m e n d a t i o n set forth above, within 10 days after being served with a copy, shall bar that

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pa rty, except upon grounds of plain error, from attacking on appeal the unobjected-to p r o p o s e d factual findings and legal conclusions accepted by the district court. See Douglass v . U.S.A.A., 79 F.3d 1415 (5th Cir. 1996) (en banc). THUS DONE AND SIGNED in Shreveport, Louisiana, this 30th day of March, 2009.

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