Engrum v. Banks et al

Filing 44

REPORT AND RECOMMENDATIONS re 41 MOTION for Summary Judgment filed by Jessie Scriber; RECOMMENDED that Motion for Summary Judgment be DENIED Objections to R&R due by 2/22/2010. Signed by Magistrate Judge Mark L Hornsby on 2/5/10. (crt,McDaniel, C)

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

J E F F R E Y C. ENGRUM, JR. VERSUS J A M E S BANKS, ET AL

C IV IL ACTION NO. 08-cv-1704 J U D G E WALTER M A G I S T R A T E JUDGE HORNSBY

R E P O R T AND RECOMMENDATION I n t r o d u c tio n J e f fre y Engrum ("Plaintiff") filed this civil rights complaint, alleging excessive force, a g a in st Jessie Scriber and James Banks, both of whom were correctional officers at the David W a d e Correctional Center. Scriber was served and has defended the complaint. An attempt to serve Banks was unsuccessful, and he has yet to appear in the case. Scriber first filed a m o tio n to dismiss (Doc. 12) for failure to state a claim on which relief may be granted, q u a lifie d immunity, and Eleventh Amendment immunity. The motion was granted with re g a rd to Scriber's immunity from any damage award against him in his official capacity, and th e same relief was ordered sua sponte for Banks. The motion was denied in all other re s p e c ts . Docs. 26 and 33. Scriber has now returned with a Motion for Summary Judgment (Doc. 41). He a rg u e s that Plaintiff's excessive force claim is barred under the doctrine of Heck v. H u m p h re y, 114 S.Ct. 2364 (1994) because a finding of excessive force by the officers would n e c e ss a rily imply the invalidity of a prison disciplinary proceeding that found Plaintiff guilty

o f misconduct during the incident at issue. For the reasons that follow, it is recommended th a t the motion be denied. T h e Allegations P lain tiff 's allegations in his amended complaint, which Plaintiff stated should s u p e rc e d e the original complaint, are as follows. Plaintiff alleges that Captain Scriber was e sc o rtin g him from the recreational area into the N-3 lobby area when Scriber said, "You k n o w you played into my trap nigger boy." Amended Complaint, ¶ 1. Plaintiff asked Scriber to refrain from using racial and derogatory language. Defendant Banks then approached in a n aggressive manner and ordered, "Motherfucker, don't say shit," as he pointed a large can o f mace at Plaintiff. ¶ 2. Scriber yelled, "If he says one word mace that boy's ass." ¶ 3. Plaintiff responded th a t he was not a boy, but a man, then Scriber yelled, "Gas him," and Banks sprayed Plaintiff d ire c tly in his face with the chemical agent. Plaintiff was, at all relevant times, in full re stra in t handcuffs, black box, waist chain, and leg irons. ¶ 4. The mace caused Plaintiff to s u f f er burning skin on his face, neck, ears, mouth, nose, and eyes. Plaintiff had coughing, s n e e zin g , and burning to his throat and nasal passages, a restriction on the ability to breathe, s h o rtn e s s of breath, dizziness, watering eyes, and temporary blindness. ¶ 5. Scriber has not submitted affidavits or other summary-judgment evidence that directly c h a lle n g e s these allegations. The motion for summary judgment relies, instead, on the effect o f disciplinary charges that stemmed from the altercation.

Page 2 of 6

T h e Heck Defense S c rib e r submits certified copies of prison disciplinary records that show Plaintiff was c h a rg e d with defiance and aggravated disobedience as a result of the incident. Scriber stated in his disciplinary charge that he was escorting Plaintiff along with Sgt. Solomon when S c rib e r gave Plaintiff a direct verbal order to button the top button of his jumpsuit. Plaintiff a lle g e d ly did not comply and stated, "F*** you, white boy!" Scriber wrote that he then gave a second direct order for Plaintiff to button his jumpsuit, but Plaintiff did not comply and c o n tin u e d to yell and curse. Captain Banks was notified by radio. C a p ta in Banks filed his own charge of defiance based on the incident. He wrote that h e was summoned by radio to the area, where he heard Plaintiff yelling in a loud tone of v o ic e at Sgt. Scriber. Banks wrote that he gave Plaintiff a direct order to stop yelling, but P la in tif f responded, "F*** you, p**** ass n*****." T h e record also includes a charge of aggravated disobedience filed by Scriber. It is b a se d on essentially the same facts plus the required use of chemical agents after Captain B a n k s arrived. The copy of this disciplinary report does not indicate its resolution. The c o p ie s of the two defiance charges state that Plaintiff was found guilty of each and sentenced to 10 days in isolation and 12 weeks loss of yard and recreation privileges. Scriber's counsel s ta te s in her memorandum that Plaintiff was also found guilty of aggravated disobedience, b u t she says the resulting sentence for all of the charges was the 10 days in isolation and 12

Page 3 of 6

w e e k s loss of privileges. There is no indication that Plaintiff was deprived of any good time c re d its . Heck held that where success in a prisoner's Section 1983 damages action would im p l ic itly question the validity of his conviction or duration of sentence, the prisoner must f ir s t achieve favorable termination of his available state or federal habeas opportunities to c h a lle n g e the underlying conviction or sentence. The rule prevents a prisoner from

a t te m p t in g to achieve through a Section 1983 suit what should be presented through the fra m ew o rk of a habeas corpus proceeding and its related rules and procedures. The Court h a s also applied Heck in circumstances where a prisoner's claim could affect good-time c re d its that would impact the time he served in custody. Edwards v. Balisok, 117 S.Ct. 1584 (19 9 7 ). S c rib e r argues that Plaintiff's excessive force claims here necessarily imply the in v a lid ity of his disciplinary convictions, meaning Plaintiff must demonstrate that he has re v e rse d the disciplinary decision or otherwise had it invalidated before he may pursue this S e c tio n 1983 claim. Scriber's argument is foreclosed by Muhammad v. Close, 124 S.Ct. 1303 (2004) w h ic h held that Heck does not apply to a prisoner's suit which does not seek a judgment that a ttac k s the prisoner's criminal conviction or the length of his sentence. The prisoner in M u h a m m a d was charged with violating a prison rule against threatening behavior and placed in special detention for six days pending a disciplinary hearing. The prisoner was acquitted

Page 4 of 6

o f threatening behavior, but found guilty of a lesser infraction of insolence. The prisoner was o rd e re d to serve an additional seven days of detention and deprived of privileges for 30 days as penalties for insolence. He brought a Section 1983 action that alleged the charges were roo ted in retaliation for prior lawsuits and grievances against a corrections officer. T h e Supreme Court stated that it was a "mistaken view" that Heck applies c a teg o ric a lly to all suits challenging prison disciplinary proceedings. Muhammad, 124 S.Ct. a t 1306. Administrative determinations that do not raise any implication about the validity o f the underlying criminal conviction and do not directly affect the length of sentence (such a s by revocation of good time credits) does not raise a claim for which the prisoner could s e e k habeas relief, so Heck does not apply. Id. T h e same is true in this case. Plaintiff was sentenced to isolation and loss of p riv ile g e s. He did not lose any good-time credits. His Section 1983 suit does not attack the co n v iction for which he is incarcerated and would not affect the length of his sentence. There is no habeas remedy for punishments such as loss of privileges that do not affect the length o f the prison sentence. Scriber must defend the excessive claim on the merits. Accordingly; I T IS RECOMMENDED that the Motion for Summary Judgment (Doc. 41) be d e n ie d .

Page 5 of 6

O b je c tio 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 rie v e d by this recommendation have ten (10) business days from service of this report and re c o m m e n d a tio n to file specific, written objections with the Clerk of Court, unless an e x te n sio n of time is granted under Fed. R. Civ. P. 6(b). A party may respond to another p arty's objections within ten (10) days after being served with a copy thereof. Counsel are d ire c te d to furnish a courtesy copy of any objections or responses to the District Judge at the tim e of filing. A party's failure to file written objections to the proposed findings, conclusions and re c o m m e n d a tio n set forth above, within 10 days after being served with a copy, shall bar that p a 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 5th day of February, 2010.

Page 6 of 6