McCoy v. Stokes et al

Filing 56

REPORT AND RECOMMENDATION re 24 MOTION for Summary Judgment, 31 MOTION for Preliminary Injunction, and 21 MOTION to Dismiss: IT IS RECOMMENDED that Defendants' Motion for Summary Judgment (Doc. 24) be granted by dismissing all of Plaintiff 's claims; that Plaintiff's Motion for Preliminary Injunction (Doc. 31) be denied as moot; and that Defendants' Motion to Dismiss (Doc. 21) be denied as moot. Objections to R&R due by 1/22/2010. Signed by Magistrate Judge Mark Hornsby on 1/5/10. (crt,Cassanova, M)

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UNITED STATES DISTRICT COURT W E S T ER N DISTRICT OF LOUISIANA S H R E V EP O R T DIVISION R O B E R T LEROY McCOY VERSUS C R A IG STOKES, ET AL C I V I L ACTION NO. 08-cv-1918 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 Rob ert Leroy McCoy ("Plaintiff") is awaiting trial in Bossier Parish on charges that h e killed his estranged wife's parents and her 17 year old son. Plaintiff was arrested in I d a h o . A Nez Perce County jail log states that Plaintiff attempted to commit suicide in his cell by using a bed sheet to hang himself. Deputies and medical professionals were able to r e v i v e Plaintiff, and he was extradited to Bossier Parish, where he is now housed at the B o s s i e r Parish maximum security jail awaiting trial on the murder charges. Plaintiff has a t t em p t e d suicide at least twice since his return to Bossier Parish. Plain tiff filed this pro se complaint against Bossier Parish Sheriff Larry Deen, Warden C r a i g Stokes, Deputy Robert Parker, and Deputy Daniel Talley. Plaintiff alleges in his c o m p l a i n t that he was subjected to an episode of excessive force and that his medical care h a s not been appropriate. Before the court are Defendants' Motion to Dismiss (Doc. 21) and Mo tion for Summary Judgment (Doc. 24). M o t i o n for Summary Judgment T h e June 8, 2008 Medical Incident P l a i n ti f f alleges in his complaint that on June 8, 2008 he was taken from the jail to the h o s p i ta l at LSU-HSC for what Plaintiff describes as a bleeding ulcer. He alleges that "the fa cil ity" informed the hospital that they believed Plaintiff had swallowed razor blades. P l a i n ti f f alleges that examinations with a camera tube inserted in his stomach and colon p r o v e d that the deputies at the jail were wrong. Plaintiff was released back to jail after four days in the hospital. Warden Stokes testifies by affidavit that Plaintiff attempted suicide on June 8, 2008 b y ingesting the jagged, broken plastic cover to a disposable razor after cutting both of his arms . Plaintiff was found in his observation cell in a large amount of blood and feces. He w a s immediately transported to LSU-HSC where he received treatment for blood loss until his discharge four days later. Photographs attached to Stokes' affidavit depict the plastic r a z o r cover and a bloody mess of a cell. Nurse David Gorman testifies by affidavit that P l a i n ti f f received, during his stay at the hospital, blood transfusions, medications, and lab w o r k to treat his condition. F o r a convicted prisoner or pretrial detainee to prevail on a claim that his medical care ( o r lack of care) violated the Constitution, he must prove that prison or jail officials were " d e l ib e r a t el y indifferent" to his "serious medical needs." Estelle v. Gamble, 97 S.Ct. 285, 2 9 1 (1976); Hare v. City of Corinth, 74 F.3d 633, 643 (5th Cir. 1996) (en banc). Deliberate Page 2 of 16 i n d i f fe r e n c e encompasses only unnecessary and wanton infliction of pain repugnant to the c o n s c i e n ce of mankind. Estelle, 97 S.Ct. at 291-92. Disagreement with the diagnostic m e a s u r e s or methods of treatment afforded by prison officials does not state a constitutional c l a im for indifference to medical needs. Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir . 1997). It is not clear whether Plaintiff attempts to state a claim based on his visit to the h o s p i ta l on June 8 or whether it is simply part of his continuing allegations that he has never a t t em p t e d suicide. Plaintiff reasons that he would not make such attempts because he is i n n o c e n t of the crimes with which he is charged. The summary judgment evidence shows t h a t the jail officials properly responded to a serious health emergency by immediately t r a n sp o r t in g Plaintiff to the hospital. Even if the cause of the emergency was a bleeding u l c e r rather than a suicide attempt, officials did not act with deliberate indifference by imm edia tely sending Plaintiff to the hospital. Plaintiff alleges that unspecified persons at the jail informed the hospital that Plaintiff h a d swallowed razor blades, an assertion that Plaintiff says proved false. The evidence s ho w s that there was an indication in the cell that reasonably prompted the jail officials to c o n v e y that warning to the hospital. Whether the belief that Plaintiff had swallowed a razor b l a d e proved true or not, the allegations do not suggest that any named defendant acted with delibe rate indifference to a serious medical need in connection with this incident. Defendants Page 3 of 16 shou ld be granted summary judgment with respect to any claims based on medical care follo win g the June 8, 2008 incident. Medical Problems with Leg P l a i n ti f f alleges in his complaint that on June 13, 2008 he was in the shower area w h e n he was subjected to an episode of excessive force. The claim based on that event will b e addressed in a separate section below. Plaintiff alleges that in the hours after the shower i n c i d en t he noticed his leg swelling from the top of his thigh to the tip of his toe. Plaintiff a l l eg e s that he pressed an emergency button several times with no response, although a depu ty eventually came to the cell to check on him. Plaintiff asked to see the nurse but was told the nurse was gone for the day. Plaintiff then asked the deputy to look at his leg. P l a i n ti f f alleges that the deputy did so and immediately called nurse David Gorman, who cam e to examine Plaintiff's leg. Plaintiff alleges that he told nurse Gorman that his leg had been that way for the past t h r e e hours. Nurse Gorman allegedly called for an EMT to look at the leg. The EMT r e p o r te d that the leg was swollen but had a good pulse. A couple of hours later, Plaintiff a l l e g e s , Plaintiff's leg was three times the size of his other leg and he again called for a s s i st a n c e . Nurse Gorman allegedly returned, saw the leg, could not find a pulse, and imm edia tely told deputies to transport Plaintiff to the hospital. Plaintiff alleges that hospital workers eventually found a weak pulse in his leg, but the l e g continued to increase in size, cause pain, and become numb. Plaintiff alleges that he was Page 4 of 16 f o u n d to have a blood clot from his waist area to the bottom of his thigh, as well as a clot b e h i n d his knee and another by his ankle. Plaintiff alleges that he was admitted to the hosp ital, given continuous medicine for three days, and released with blood thinner pills that P l a i n ti f f alleges he will have to take for the rest of his life. T h e Plaintiff's allegations with respect to this medical problem are not directed at any n a m e d defendant. Plaintiff does not fault Sheriff Dean, Warden Stokes, Deputy Parker, or De puty Talley for any delay associated with medical care for the swelling leg. Nurse G o r m a n is not a named defendant, but by Plaintiff's allegations Gorman acted promptly and r e a s o na b l y in response to the alleged medical condition. Accordingly, Plaintiff has not a l l eg e d facts to suggest that any defendant was deliberately indifferent to a serious medical n e e d with respect to this alleged medical condition. All claims based on delay or other asp ects of the medical treatment of the leg should be dismissed. Medical Problem With Eyes P l a i n ti f f alleges that, after his return from the hospital for the blood clot matter, he wa s placed in a holding cell with a cloth gown, where guards harassed him. A week later, a guard allegedly sprayed Plaintiff with mace as Plaintiff slept on the floor. Plaintiff alleges t h e mace stayed on him for two days and swelled both of his eyes. P l a i n ti f f alleges that his eyes became worse and he was taken to the hospital. Plaintiff a l l eg e s that deputies threatened Plaintiff not to tell the truth, and the deputies told a doctor t h a t Plaintiff had an allergic reaction to his blood thinner medication. Plaintiff alleges that Page 5 of 16 h e received an eye examination and was released back to jail. He alleges that his eyes c o n t i n u e d to be bloodshot and swollen for some time afterwards. P l a i n ti f f does not specify in his complaint, or in any of his many other filings, the n a m e of the deputy who allegedly sprayed mace on him as he slept on the floor. Plaintiff a l l eg e s that a Lt. Wick (not a named defendant) was the one who threatened him not to tell t h e truth about the cause of his medical problem. Plaintiff nowhere alleges that any named d e f e n d a n t participated in the events just described. N u r s e Gorman testifies in support of the motion for summary judgment that he is aware that Plaintiff has been seen twice at LSU-HSC for evaluation of his eyes. The first visit was July 15, 2008. The physician indicated that Plaintiff had bilateral subconjunctival h e m o r r h a g e that the physician expected to resolve in two weeks. The physician noted in the r e c o r d s that he questioned whether the condition was caused by the patient. Plaintiff was s e e n at LSU-HSC again on August 15, 2008. The physician indicated that there were no f u r t h e r subconjunctival hemorrhages and that Plaintiff should continue with medication p r e v i o u sl y prescribed. P l a i n ti f f has filed several items subsequent to the filing of the motion for summary judg men t, and the court has reviewed each of them to determine whether they included any c o m p e t e n t summary judgment evidence relevant to the claims alleged in the complaint. P l a i n t i f f has offered no evidence regarding his eye claims. Neither the allegations in the c o m p l a i n t nor the summary judgment evidence submitted by Defendants provide any basis Page 6 of 16 f o r a claim of excessive force or denial of medical care against any named defendant. Sum mary judgment should be granted to dismiss all claims based on Plaintiff's allegations reg ard ing his swollen and bloodshot eyes. Third Suicide Attempt De fend ants included in their summary judgment evidence an account of a third suicide a t t em p t committed by Plaintiff on July 28, 2008. Affidavits and medical evidence indicate t h a t Plaintiff bit a large area out of his right arm. The medical report states: "Patient tried to gnaw off his arm." Plaintiff was taken to the hospital for surgical repair and treatment. P l a i n ti f f , in his several filings after the motion for summary judgment, has denied that h e made a third suicide attempt. He asserts that the wounds to his arm were caused by a T aser. The court need not delve further into the facts surrounding this incident because Plaintiff's complaint does not attempt to set forth any claim against any defendant based on eve nts around this alleged suicide attempt. The June 13, 2008 Shower Incident A . Allegations in Complaint P l a i n ti f f alleges in his complaint that on June 13, 2008 Warden Stokes and two d e p u t i es escorted Plaintiff to the shower area. Plaintiff alleges that he told Stokes that some o f the deputies were threatening him, but Stokes told Plaintiff to shut-up because he did not w a n t to hear that. Later, after Stokes left the area, Deputy Daniel Talley entered the shower Page 7 of 16 a r e a and started calling Plaintiff derogatory names, spit in Plaintiff's face, and otherwise tried t o provoke Plaintiff. P l a i n ti f f alleges that Deputy Talley then ordered Plaintiff to put his hands behind his b a c k and walk out the door of the shower. Plaintiff alleges that he proceeded to do so, but did use his right hand to open the door. At that moment, Plaintiff alleges, Talley grabbed Plaintiff's left arm and held it high in the escort position. He tried to pull Plaintiff back into t h e shower area so he could assault Plaintiff where there were no cameras recording the events. Plaintiff alleges that Talley eventually slipped, fell, and pulled Plaintiff on top of him. P l a i n ti f f alleges that he immediately placed his hands behind his back so the cameras would record that he was not the aggressor. Plaintiff alleges that two deputies in the area grabbed P l a i n ti f f and handcuffed him while Deputy Talley repeatedly punched Plaintiff in the face. Pla i n t if f alleges that, while in handcuffs, he put his head down on the floor in an effort to s t o p Talley from hitting him in the face. He saw defendant Robert Parker and several other d e p u t i es running toward him. Parker allegedly used a Taser device on Plaintiff's leg. Two o t h e r deputies pulled Plaintiff's handcuffed arms and sprayed him in the face with mace. P a r k e r then used the Taser on Plaintiff's chest area two times. Parker then jerked Plaintiff u p by his handcuffs and threw him in a holding cell. Plaintiff alleges that nurse David ( G o rm a n ) came to see him but left Plaintiff in the room with mace on his face and nak ed body. Page 8 of 16 B . Defendants' Affidavit Testimony De fend ants submit affidavits that offer a version of the events that differs from that a s s e r te d in the complaint. Warden Stokes testifies that Plaintiff was in the shower and told S t o k e s that he was going to have to take matters into his own hands. Stokes testifies that he told Plaintiff to follow the orders of the deputies and remain calm. Deputy Chase Townley t e s ti f i es that he was in the shower area to observe Plaintiff, who was on suicide watch. P l a i n ti f f was being aggressive verbally and making derogatory remarks and saying that he wo uld take matters into his own hands. Townley testifies that, after Plaintiff finished his show er, Townley tossed a towel to Plaintiff. Plaintiff let the towel drop to the floor and then said that the deputies were being disrespectful to him. Talley testifies that he told Plaintiff t h a t nothing was meant by the tossing of the towel, so Plaintiff should just pick it up and dry himself. The corrections officers testify that an inmate is told from the day he arrives that he is to walk with his arms and hands behind his back when moving from one area to another. This prevents any appearance of a threat to deputies. Deputy Talley instructed Plaintiff to p l a c e his hands behind his back for an escort back to his cell, but Plaintiff refused. De puty Talley testifies that he began to place Plaintiff in the escort position, but Plaintiff aggr essive ly spun around and placed Talley in a compromising position with his back to the Page 9 of 16 i n m a t e . Talley testifies that he and Plaintiff began to struggle, and Plaintiff pushed Talley f r o m the shower room and about 10 or 15 feet across a hallway before Plaintiff landed on top of Talley. Talley testifies that he continued to struggle to bring Plaintiff under control, but P l a i n ti f f constantly resisted, and Plaintiff defied orders to stop struggling and place his hands b e h i n d his back. Talley testifies that Plaintiff locked one arm in an outward position and t u c k e d the other securely under his body. Talley said he used open-handed strikes in an attem pt to control Plaintiff, who was wet and naked, making it difficult to grasp him. Talley testifies that other deputies saw his predicament and came to the area to assist. H e testifies that Warden Stokes responded by using chemical spray, which appeared to have n o effect on Plaintiff. Deputy Parker then administered a dry stun with a Taser device. De puty Parker testifies that he used the Taser in dry stun mode to administer local pain to an a r e a of the body to bring the prisoner under control. He used a total of three five-second s t u n s . Before the third stun, Plaintiff continued resisting and would not follow orders. After t h e third stun, Plaintiff began to comply and allowed himself to be handcuffed. De puty Parker testifies that the nurse was present during the altercation and that P l a i n ti f f was immediately assessed and escorted to his cell by Parker and the nurse. Plaintiff w a s allowed to calm down and, within 30 minutes, the nurse reassessed Plaintiff in the in fir m ar y. Parker testifies that he did not see any injuries to Plaintiff. Nurse Gorman offers s i m i la r testimony and also notes that he did not find any injuries to Plaintiff. Gorman adds Page 10 of 16 t h a t he never saw any force used on Plaintiff after the handcuffs were applied by t h e deputies. C . Plaintiff's Summary Judgment Evidence A f t e r Defendants filed their Motion for Summary Judgment, Plaintiff tendered several filin gs that, generously construed, are intended as opposition to the motion. See Docs. 27, 2 9 , 34-40, 43-45, 48, and 49. Some of the submissions are unsworn memoranda, which are n o t competent summary judgment evidence. Larry v. White, 929 F.2d 206, 211 n.12 (5th Cir. 1991). Many of those filings have little or nothing to do with the allegations in the com plaint. Rather, Plaintiff complains in them about what he believes is a conspiracy theory beh ind efforts to convict him of murder. Several of the filings, including Plaintiff's complaint, contain a declaration by P l a i n ti f f that they are made under penalty of perjury and that all statements made therein are t r u e and correct. Such declarations, made in substantial conformity with 28 U.S.C. § 1746, m a y be competent summary judgment evidence. Hart v. Hairston, 343 F.3d 762 n.1 (5th Cir. 2003). Most of the filings that contain a declaration pursuant to Section 1746 are, however, n o t relevant to the claims asserted in the complaint. Plaintiff talks about an attack on another inma te by a non-defendant deputy, asserts that a non-defendant deputy has engaged in u n l a w f u l sexual conduct with juveniles, complains about his criminal proceedings, and t h e like. Page 11 of 16 On ly one of the submissions, Doc. 29, contains both a declaration pursuant to Section 174 6 and some contentions that are pertinent to the allegations in the complaint. But even this document contains delusional assertions, including: a conspiracy between the Bossier S h e r i f f and the FBI regarding an incident where a police officer was found sleeping with Plaintiff's wife; efforts by Pamela Smart, his court appointed attorney in the murder case, to with hold evidence and deny him equal protection; plots and schemes to make Plaintiff look gu ilty; and starving Plaintiff by withholding food and water. Plaintiff also denies that he has e v e r attempted to commit suicide, and he proclaims his innocence of the criminal charges. P l a i n ti f f also makes some conclusory assertions relevant to his Section 1983 claims. P l a i n ti f f asserts that "they" tore his suicide paper yellow gown from him as they tried to pull him back in the shower area to assault him outside the view of security cameras. Plaintiff s t a te s that he "never became aggressive" and was never "on my back" resisting. P l a i n t i f f states: Cap tain Stokes, Chase Townley both sprayed me with mace wh ile on my knees, Deputy Talley striking me in the face closed fist, with my hands visually behind my back and laying my head a t rest on the floor to avoid striking blows by Deputy Talley. ... De puty Wilson, never opened the shower door, I opened shower d o o r with my right hand and while my left hand was still behind m y back, Deputy Talley grapped it put it high in a escort pos ition , etc.... I was handcuffed when Deputy Parker started Tasing me. Page 12 of 16 D . Analysis and Conclusion T h e claims of pretrial detainees are assessed under the due process clause of the Fou rteenth Amendment rather than the Eighth Amendment's cruel and unusual punishment c l a u s e , which applies to convicted prisoners. But when a court is called upon to examine the a m o u n t of force used on a pretrial detainee for the purpose of institutional security, the Fifth C i r c u it adopts Eighth Amendment standards. The question is whether the measures taken i n f l ic t e d unnecessary and wanton pain and suffering, which depends on whether the force w a s applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistica lly for the purpose of causing harm. Valencia v. Wiggins, 981 F.2d 1440, 1446 (5th Cir . 1993). Plaintiff's allegations of fact in his verified complaint and the additional bits of e v i d e n c e scattered throughout at Doc. 29 are not sufficient to create a genuine issue of m a t e r ia l fact as to whether Warden Stokes, Deputy Parker, and Deputy Talley ran afoul of t h a t standard. Defendants offer evidence that Plaintiff refused their instructions, and Plaintiff adm its that he reached out his right hand when he was supposed to remain in the escort p o s i ti o n with his hands behind his back. Defendants offer evidence that they employed only t h a t force necessary to gain control of Plaintiff and the situation. Plaintiff urges that the force w a s of an unlawful degree under the circumstances, but he submits only conclusory (and caref ully worded) assertions that he never "became aggressive," that he was never "on [his] bac k resisting," and that he was handcuffed when Deputy Parker started tasing him. Page 13 of 16 Wh ile the court may not weigh the competing evidence or make any credibility assess men ts in this summary judgment contest, Harvill v. Westward Communications, L.L .C ., 433 F.3d 428, 436 (5th Cir. 2005), a party may not defeat a motion for summary j u d g m e n t with conclusory allegations or unsubstantiated assertions. Little v. Liquid Air Corp . 37 F.3d 1069, 1075 (5th Cir. 1994). The court finds that a reasonable juror who c o n s i d e re d the few specific facts offered by Plaintiff, together with the aspects of the D e f e n d a n t s ' comprehensive summary judgment evidence that are not contested, could not return a verdict that any named defendant used force maliciously and sadistically for the p u r p o s e of causing harm rather than in a good-faith effort to maintain or restore discipline. A cc or di ng ly, summary judgment should be granted for Stokes, Parker, and Talley with r es p ec t to this claim. S h e r i f f Larry Deen P l a i n ti f f also has not created a genuine issue of material fact with respect to any claim a g a i n s t Sheriff Larry Deen. Plaintiff never mentions Deen in his complaint or summary j u d g m e n t submissions as playing any role in the events about which Plaintiff complains. D e e n has submitted an affidavit in which he testifies that he had no direct involvement in the i n c a r ce r a t io n of Plaintiff and was not aware of any violations of Plaintiff's rights. Plaintiff h a s not presented evidence to create a genuine issue of material fact with regard to Deen, so De en is entitled to summary judgment. Page 14 of 16 P l a i n t if f ' s Motion for Injunctive Relief P l a i n ti f f has also filed a Motion for Preliminary Injunction (Doc. 31) in which he asks t h e court to order the defendants to provide the court a copy of the "camera evidence" that P l a i n ti f f proposes will back his allegations regarding the June 13, 2008 incident in the show er. Given the recommended resolution of Defendants' Motion for Summary Judgment, Plaintif f's request for injunctive relief should be denied as moot. D e f e n d a n t ' s Motion to Dismiss De fend ants filed a Motion to Dismiss based on Plaintiff's failure to comply with a court order that required Plaintiff to respond to Defendants' interrogatories and requests for p r o d u c t io n of documents. Because the court should grant summary judgment (as set forth a b o ve), it is not necessary to address the motion to dismiss. The motion should be denied as moot. A cc or di ng ly; I T IS RECOMMENDED that Defendants' Motion for Summary Judgment ( D o c . 24) be granted by dismissing all of Plaintiff's claims. I T IS RECOMMENDED that Plaintiff's Motion for Preliminary Injunction (Doc. 31) be denied as moot. I T IS FURTHER RECOMMENDED that Defendants' Motion to Dismiss (Doc. 21) be denied as moot. Page 15 of 16 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 fourteen (14) days from service of this report and r e c om 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 pa rty's objections within seven (7) 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 fourteen (14) days after being served with a copy, shall bar that party, except upon grounds of plain error, from attacking on appeal the uno bjecte d-to proposed factual findings and legal conclusions accepted by the district court. S e e 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 January, 2010. Page 16 of 16

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