Kiger v. Clairborne et al

Filing 114

REPORT AND RECOMMENDATION re 64 MOTION for Summary Judgment: IT IS RECOMMENDED that the Motion for Summary Judgment be granted and that all of Plaintiff's claims against all Defendants be dismissed with prejudice. Objections to R&R due by 3/9/2009. Signed by Magistrate Judge Mark Hornsby on 02/20/09. (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

P A U L J. KIGER VERSUS O F F IC E R CLAIRBORNE, ET AL

C I V I L ACTION NO. 07-cv-2086 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 P a u l Kiger ("Plaintiff") is a convicted state prisoner who was housed at the Bossier M e d i u m Security Facility from August 10, 2007 until January 7, 2008. Plaintiff alleges in h i s original and amended complaints that Deputy Dominic Claiborne (sometimes spelled C l a i r b o rn e ) issued him an XL size jumper when Plaintiff requested an XXL jumper. Plaintiff a l l eg e s that the seam of the jumper was pressed in his buttocks, and his genitals were s h o w i n g through. Plaintiff alleges that he complained, following which he was wrongfully hit and maced. Plaintiff also complains that he was kept in isolation for several days after the incident. Deputy Claiborne: No Service P l a i n ti f f has named several defendants, but Deputy Claiborne is obviously the p r i n c ip a l target of the allegations. The court, pursuant to its obligation to have court officers s e r v e process for paupers, directed the Marshal to serve Claiborne at the address provided b y Plaintiff. The Marshal attempted to make service at the correctional facility address

p r o v i d e d by Plaintiff, but he noted on the return, "Subject no longer works for Bossier Par ish." After several months of proceedings related to finding an address for Claiborne, the o t h e r defendants filed under seal Claiborne's last address known to them. The Marshal was d i r e c te d to attempt service on Claiborne at that address, but he returned the summons u n e x e c u t e d with the remark "Apartment was vacant." The court, after reciting the detailed history of this service issue, permitted Plaintiff more than 30 additional days, ending on January 12, 2008, to file a current address for Claiborne where service may be made. P l a i n ti f f was warned that failure to do so might result in dismissal of the claims against C l a i b o r n e. Doc. 88. P l a i n ti f f has not filed another address for Claiborne. Rather, he has filed a series of m e r i t l e s s motions attempting to substitute other persons in Claiborne's place. The court has d e n i e d the motions and explained to Plaintiff that the procedure he seeks to employ applies only when the party has been sued in his official capacity and ceases to hold office. Plaintiff's claim against Claiborne is plainly an individual capacity claim. The difference b e t w e e n the two types of claims is explained in Kentucky v. Graham, 105 S.Ct. 3099 (1985). S e e Doc. 109. The court has given Plaintiff more than a reasonable opportunity, even granting him l e a v e to conduct discovery on the issue, and Plaintiff has not been able to produce a valid a d d r e s s for Claiborne. The court is obligated to direct the Marshal to make service at an a d d r e s s that has been provided, but the court is not a detective agency, and it has no way of

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o b t a i n in g service on Claiborne absent a valid address. Under these circumstances, the court is justified in dismissing all claims against Claiborne for failure to prosecute. Furthermore, f o r the reasons set forth below, the summary judgment evidence submitted by the other defe ndan ts contests the allegations against Claiborne, and Plaintiff has not created a genuine issu e of material fact in that regard. Summary Judgment Record T h e other defendants have joined in a Motion for Summary Judgment (Doc. 64) that is supported by affidavits and copies of prison records. Those records show that Plaintiff is 5 ' 8" tall and weighed about 160 to 165 pounds at the relevant time. Captain Charles Gray t e s ti f i es that inmates are not allowed a one-piece jumpsuit that is too large because it would a l l o w for the concealment of weapons and contraband. Gray adds that, when the new uniform was adopted, he had the deputies try on the jumpsuits so that they were aware of the s i z e s when they issued the uniforms. He testifies that an XL jumpsuit is "plenty big" for a m a n of Plaintiff's size. De puty Thomas Wilson testifies that he is aware that Plaintiff complained about the s i z e of the uniform issued to him. Wilson says that he instructed Plaintiff to put on the unifo rm and meet him in the hallway. Plaintiff did not comply with the order, so Deputies W i l s o n and Claiborne took Plaintiff to isolation. Wilson testifies that he did not see Plaintiff b e i n g hit with the cell door or struck by any deputy (as alleged by Plaintiff). Wilson testifies t h a t Plaintiff was cursing and, with the cell door open, Plaintiff rushed from the back of the

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cell with his fist clenched in an aggressive manner. Deputy Claiborne then sprayed Plaintiff in the face with freeze spray, and Plaintiff was placed back in the cell. Plaintiff refused m e d i c a l care, but Deputies Martin and Coker cuffed Plaintiff to take him to the medical offic e. Wilson says that he had no contact with Plaintiff after this incident. De puty Brandon Coker testifies that he placed Plaintiff in handcuffs after Claiborne s p r a ye d Plaintiff. Coker escorted Plaintiff to the medical department and released one hand f r o m the handcuffs. Coker testifies that Plaintiff turned aggressively toward him, and Deputy M artin had to immediately restrain Plaintiff and place the handcuffs on him again. Plaintiff r e f u s e d medical care, and he was returned to isolation. P l a i n ti f f has complained about his conditions while in isolation, including the lack of b e d d i n g . Deputy Jonathan Colgin testifies that when an inmate is in isolation, mats are p r o v i d e d only during the time from 10:00 p.m. to 6:30 a.m. Otherwise, the mats are kept s t a c k e d in the hallway outside the isolation cells. At night, the door to an inmate's cell is o p e n e d , and the inmate is instructed to obtain his mat and bedding. If the inmate refuses, he is not forced to obtain a mat. Only suicidal inmates are prohibited from having bedding, and Co lgin testifies that Kiger was not (to his knowledge) suicidal. Other deputies, including L i n t o n Jacobs, Heath Lyles, and Jessie Williams, Jr. testified that they had no personal inv olv em ent in the incidents alleged in the complaint.

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A n a l y s is of Summary Judgment P l a i n ti f f was given an extension of time to respond to the Motion for Summary Judg men t. He has filed a memorandum (Doc. 111), but it is not supported by any competent summ ary judgment evidence. Plaintiff repeats his allegations that Deputy Claiborne

m i s t re a t e d him, and he alleges that Deputies Martin, Coker, Claiborne, and an unknown dep uty took him to a holding cell and beat him. Under Fed.R.Civ.P. 56(c), a summary judgment "shall be rendered forthwith if the p l e a d i n g s , depositions, answers to interrogatories, and admission on file, together with the a f f i d a v i t s , if any, show that there is no genuine issue as to any material fact and that the m o v i n g party is entitled to judgment as a matter of law." A fact is "material" if it might affect t h e outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2 5 0 5 , 2510 (1986). An issue is "genuine" if there is sufficient evidence so that a reasonable jury could return a verdict for either party. Anderson, supra; B & A Pipeline Co. v. Dorney, 904 F.2d 996, 1002 (5th Cir. 1990). The party seeking summary judgment has the initial responsibility of informing the court of the basis for its motion, and identifying those parts of the record that it believes dem onstra te the absence of genuine issue of material fact. Celotex Corp. v. Catrett, 106 S.Ct. 2 5 4 8 (1986). If the moving party carries his initial burden, the burden then falls upon the n o n m o v i n g party to demonstrate the existence of a genuine issue of a material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 106 S.Ct. 1348, 1355-56 (1986).

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T h e moving parties have satisfied their burden of presenting summary judgment e v i d e n c e that flatly contradicts Plaintiff's allegations, shifting the burden to Plaintiff to dem onstra te the existence of a genuine issue of material fact. In determining whether a fact is material, it must be kept in mind that Plaintiff can prevail on his Eighth Amendment e x c e s s iv e force claim only if he shows that force was applied maliciously and sadistically to c a u s e harm, rather than in a good-faith effort to maintain or restore discipline. Hudson v. M c M i l li a n, 112 S.Ct. 995 (1992). P l a i n ti f f has presented only his memorandum, but unsworn memoranda are not c o m p e t e n t summary judgment evidence. Larry v. White, 929 F.2d 206, 211 n.12 (5th Cir. 1 9 9 1 ) . Plaintiff has, since the Motion for Summary Judgment was filed, filed a number of m o t i o n s , such as a request to have the Marshal enter the facility to take photographs and seize o r copy computer equipment, which Plaintiff apparently believes will help him oppose the m o t i o n . The court has denied the motions as frivolous. See, e.g., Doc. 98 (denying several motions). Plaintiff has filed more than 25 submissions since the Motion for Summary J u d g m e n t was filed in October 2008, but he has yet to file competent summary judgment evide nce that would create a genuine issue of material fact. E x h a u s t i o n of Administrative Remedies T h e Motion for Summary Judgment should be granted for the reasons above, but the m o t i o n asserts one additional argument that bears mention. Defendants argue that Plaintiff f a i le d to exhaust his administrative remedies before he filed suit, as required by 42 U.S.C.

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§ 1997e(a). That argument is an affirmative defense. Jones v. Bock, 127 S.Ct. 910 (2007); C a r b e v. Lappin, 492 F.3d 325 (5th Cir. 2007). Movants cite in support of the argument the affid avit of Captain Gray, but Gray testifies only that he is not "aware of any grievance filed b y the inmate." Movants also cite the affidavit of Deputy Coker, who testifies that he is "unaw are of any grievances filed by [Plaintiff]." Coker adds, "All grievances must be logged a n d numbered when received, and none were." That is the extent of the evidence on this def ens e, on which movants bear the burden. Local judges have granted or recommended the granting of many motions for summ ary judgment for prison and jail officials on the grounds that the inmate did not exhaust a d m i n i s t r a ti v e remedies before filing suit. The successful motions, most often filed by o f f i c ia ls at David Wade Correctional Center and the Caddo Correctional Center, are s u p p o r t ed by an affidavit from an official who testifies that he or she is responsible for the adm inistratio n of the administrative grievance system at the facility. The affidavit will usua lly explain the grievance procedure and/or be accompanied by a certified copy of the g r i e v a n ce procedure in place at the institution at the relevant time, state affirmatively that the a f f i a n t has made a review of the grievance records under his administration, and declare the r e s u lt s of that review. The affiant usually attaches a copy of any grievances that were filed a n d the administration's written responses thereto. See, e.g., Gillet v. Anderson, 577 F . S u p p . 2 d 828 (W.D. La. 2008)(David W ade Correctional Center); Humphreys v. Pylant,

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2 0 0 8 WL 2812962 (W.D. La. 2008)(Franklin Parish Detention Center); and Adger v. Wynn, 200 8 WL 4186865 (W.D. La. 2008)(Caddo Correctional Center). That degree of detail is lacking in this case, and this is only the second time the court is aware of the Bossier Parish Sheriff asserting that a grievance procedure is in place in the B o s s i e r Parish jails. Many Bossier Parish prisoners who have filed suits have alleged that there is no administrative grievance procedure in place or that grievances are ignored. Given t h a t background, and the lack of factual detail regarding the alleged grievance process and t h e search for any grievances filed by Plaintiff, summary judgment is not appropriate with regard to this defense. The same recommendation was made the first time the Bossier Parish S h e r i f f raised the defense, in Harrison v. Deen, 2008 WL 5435339 (W.D. La. 2008). Since the decision in Jones v. Bock, the court may no longer raise and explore failure to exhaust administrative remedies sua sponte, and it is dependent on counsel to urge and support the defense. Failure to exhaust is often a solid defense for prison and jail officials w h o work in a facility with a grievance plan in place. When raised early and supported by e v i d e n c e , the defense often ends the litigation quickly without any significant expense by the taxpayers who fund the prison or jail's legal defense, or the unnecessary expenditure of j u d i c i al resources addressing the merits of the case. Defendants are encouraged to present t h e defense early when it is applicable, but a defendant who wishes to prevail on the defense m u s t support it with specific facts backed by competent summary judgment evidence that e s t a b li s h e s a basis for the defense.

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A cc or di ng ly; I T IS RECOMMENDED that the Motion for Summary Judgment (Doc. 64) be g r a n t e d and that all of Plaintiff's claims against all Defendants be dismissed with p r e j u d i c e. 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 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 20th day of February, 200 9.

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