Cruse v. Brisolara et al

Filing 121

MEMORANDUM OPIINION AND ORDER granting 44 Motion for Summary Judgment, failure to exhaust administrative remedies; denying 68 Motion for Summary Judgment; denying 69 Motion for Default Judgment; finding as moot 102 Motion for a Jury Trial; finding as moot 103 Motion for Issuance of Subpoenas; granting 105 Motion for Summary Judgment. Signed by Magistrate Judge Robert H. Walker on 9/16/16. (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
ANDREW CLINTON CRUSE, JR.
VERSUS

PLAINTIFF
CIVIL ACTION NO. 1:15cv172-RHW

MELVIN T. BRISOLARA, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Before the Court are three motions for summary judgment filed by the parties in this
prisoner civil rights lawsuit filed June 3, 2015 by pro se plaintiff Andrew Clinton Cruse, Jr.
under 42 U.S.C. § 1983. Defendants filed motions [44] and [105] on October 30, 2015 and
April 15, 2016, respectively; Plaintiff filed motion [68] November 24, 2015. Also before the
Court are Cruse’s motions for default judgment [69] filed November 24, 2015, and for jury trial
[102] and issuance of subpoenas [103], both filed April 6, 2016. All motions are ripe for ruling.
The parties consented to the exercise of jurisdiction by the United States Magistrate Judge under
28 U.S.C. § 636(c) and FED.R.CIV.P. 73, and by order of February 22, 2016, the case was
reassigned to the undersigned for all further proceedings. [95]
Facts and Procedural History
Since his arrest on February 23, 2015, Andrew Clinton Cruse, Jr. has been confined in the
Harrison County Adult Detention Center (HCADC) on various felony charges including
kidnaping, rape, sexual battery, and two counts of uttering forgery. On June 3, 2015,1 Cruse sued
then Sheriff Melvin Brisolara and Harrison County, complaining he had been placed in the jail
cellblock with convicted inmates although he had not yet been indicted on the charges for which
he was confined, and that he sustained an injury in a May 12, 2015 incident when, during a
1

Cruse’s complaint is dated May 20, 2015; it was filed by the Clerk June 3, 2015.

shakedown at the facility, Officer Immel2 fired a riot gun some 10-15 feet from him. Cruse
claims this frightened him and caused him a permanent partial hearing loss. [1], [9]
Defendants’ first summary judgment motion [44] urges dismissal of Cruse’s complaint
due to his failure to exhaust administrative remedies prior to filing suit. In support of this
motion, Defendants present the affidavit of HCADC grievance officer Jennifer Moran, to
establish that HCADC has a three-level grievance procedure. The procedure begins at Level I
with the inmate’s filing a grievance, to which the appropriate personnel respond. If the inmate is
not satisfied with the Level I response he may proceed to Level II which is to the Deputy
Warden, and if not satisfied with the Level II response, he may proceed to Level III, the final step
in the process, which is to the Warden. [44-1, p. 4] The initial (Level I) grievance is submitted
from a computer kiosk, but Level II and Level III grievances are completed on paper forms only,
which are forwarded to the proper respondent, with a copy stored in the office of the grievance
officer. [44-1] Moran attached to her affidavit all Cruse’s complaints and grievances related to
the incident of May 12, 2015, which consist of medical complaints of ear pain, blurred vision,
objections to being charged for medical care, and a request for medical diet [44-1, pp. 5-6, 11-16,
18-24], and grievances regarding the discharge of the gun in close proximity to him, and his
being moved out of his cell [44-1, pp. 7-10, 17, 23-24]. These records include no Level II or
Level III grievances filed by Cruse prior to filing the lawsuit. In fact, Cruse dated his complaint
May 20, 2015, just eight days after the incident of which he complains. The complaint was
postmarked May 26, 2015, received by the Clerk on May 27, 2015, and filed by the Clerk on
June 3, 2015. [1, pp. 4, 6]

2

Cruse was allowed to amend his complaint to add Immel as a defendant on October 15, 2015 at
the screening/omnibus hearing.

In response [53] to motion [44], Cruse repeats his allegation that he was injured, asserts
that no policy allows a gun to be fired in the jail,3 and complains that the grievance procedures
argued by Defendants are from an outdated Inmate Handbook. Cruse complains he has not been
served a copy of the May 2015 edition of the HCADC Inmate Handbook. [53, p. 2] Defendants
respond that the December 2013 edition of the Handbook applies to Cruse’s case, since that
edition was in effect on May 12, 2015 and remained in effect until the Handbook was updated
May 27, 2015. In any event, Chapter VII of the Handbook - the Inmate Grievance Program remained the same in both those editions. [62-1, ¶ 1] In addition to the Handbook, HCADC
grievance procedures are available to inmates in electronic form on the kiosk. [62-1, ¶ 5]
Cruse’s memorandum [54] consists of conclusory allegations that Officer Immel’s bringing a
firearm into the facility violated jail policy and constituted a crime, and Cruse speculates that
such action could create a danger to others if an inmate got the gun. Cruse has presented no
evidence that he completed the three-step grievance procedure required to exhaust his
administrative remedies. Instead, he alleges the circumstances of his case require no grievance
procedure. [54, p. 1]
On November 24, 2015, Cruse filed both a motion for summary judgment [68] and a
motion for default judgment [69]. Cruse’s Motion for default judgment [69] again challenges the
grievance procedure at HCADC, argues the Inmate Handbook is outdated, and makes conclusory
allegations that jail records are being altered to protect Defendants. Despite the title Cruse gave
this pleading, it bears no resemblance to a motion for default judgment and contains no
cognizable grounds upon which a default judgment might be founded. The Court will therefore

3

Actually, Harrison County Sheriff’s Department Policy Number 5.03 issued August 1, 2008
authorizes the use of special munitions - distraction devices. [105-2, pp. 21-23]

deny Plaintiff’s motion for default judgment. However, the Court has considered the pleading to
the extent that it might be construed as additional response to motion [44].
In motion [68], Cruse seeks summary judgment for a claim that was “falsly publist (sic)
saying Plaintiff had a pryor (sic) tinnitus and sensorireural (sic) hearing loss” before the May 12,
2012 incident at the jail. As “evidence” of this allegation, Cruse presents (1) a June 12, 2015
medical record which notes under past medical history “tinnitus and sensorireural (sic) hearing
loss” and states, “Dr. advised that inmate needs hearing test” [68-1, p. 2]; (2) a June 23, 2015
audiological evaluation and report from Dr. Ross Deavours, who summarized:
Speech tests reveal normal hearing for speech with good word recognition at
conversational speech levels. Tests revealed an asymmetrical, sensorineural
hearing loss. The right ear responses are normal through the speech frequencies
with a mild to moderate high frequency loss. The left ear was retested for
reliability and reveal normal hearing sloping to a mild to moderate loss in the higher
speech frequencies and moderate in the high frequencies.
[68-1, pp. 3-4]; and (3) a May 12, 2015 nurse progress record which states Cruse was seen on
the cellblock around 6:40 p.m., was very nervous from all the noise during a shakedown by
security, had a 142/80 blood pressure, respirations of 21 and heart rate of 84. The record states
he was brought to medical for observation and to calm down, and was cleared to return to the
block at 7:10 p.m., feeling better and without any shaking noted. [68-1, p. 1] In response [73] to
Cruse’s summary judgment, the Defendants point out Cruse has presented no evidence showing
Sheriff Brisolara, Officer Immel or Harrison County prepared any of these medical records4 and
since Cruse claims he sustained a hearing loss on May 12, 2015, he can hardly claim the reported
history of hearing loss on the June 2015 records is false. The evidence produced by Plaintiff fails
to show he is entitled to judgment as a matter of law against Defendants.
4

Defendants state the documents were prepared by employees of Correctional Medical
Associates, Inc.

Defendants’ second motion for summary judgment [105] addresses the substance of
Cruse’s claimed constitutional violation. In support of this motion, Defendants present excerpts
from Cruse’s deposition [105-1] and affidavits of HCADC Warden Evan Hubbard [105-2],
Sergeant Robert Immel [105-4] and Sheriff Melvin Brisolara [105-5], as well as the December
2013 edition of the HCADC Inmate Handbook [105-3]. The exhibits establish these additional
facts.
On May 12, 2015, Cruse was a pretrial detainee, classified as C-custody requiring close
supervision. [105-2, p. 13] Cruse admits in his deposition that he and the other inmates housed
in B-Block B-Section were deemed dangerous or “violent offenders.” It is undisputed that there
were 29-30 inmates housed in B-Section on May 12, 2015, and 15-16 of them were out of their
cells, unrestrained in the dayroom at the time of the shakedown. [105-1, pp. 8-9, 12-13], [105-4]
According to Immel’s uncontradicted affidavit, SWAT was asked to assist and provide
security in the shakedown in B-Block B-Section. Immel was the first to enter the Section, taking
one or two steps before deploying a Bore Thunder distraction device,5 which discharges no
munitions or projectiles, but is designed to create noise to use the element of surprise to quickly
gain control of a situation. [105-4], [105-1, p. 14], [105-2, pp. 15-16] Neither Immel nor the
other officers conducting the shakedown were wearing any ear protection when the shakedown
took place. [105-4] Cruse testified he had no dealings with Immel prior to the May 12, 2015
shakedown, and he concedes that shakedowns are necessary in the facility to maintain a safe
environment for both inmates and officers. Cruse further testified he does not think Immel’s
action was intended to hurt him.6 [105-1, pp. 11, 15] Cruse has admittedly received medical

5

Cruse refers to the device as a shotgun or riot gun.

6

In other pleadings, Cruse referred to Immel’s action as “deliberate neglegence (sic).” [69, p.2]

attention for tinnitus and his claimed hearing loss since the incident.7 However, Cruse testified
he had never had a hearing test before the incident, and that none of his treating physicians have
affirmatively linked his hearing loss to deployment of the distraction device. [105-1, pp. 2, 26]
Cruse testified Sheriff Brisolara was not present when the shakedown occurred, and that
he sued the Sheriff and Harrison County because of the actions of their employees. [105-1, pp.
22-24] The Sheriff’s affidavit establishes that he has had no contact with Cruse and was unaware
of any risk of harm to Cruse’s health, and confirms he was not present at the shakedown. [105-5]
Cruse’s response [109] to motion [105] consists primarily of a repetition of allegations from his
prior pleadings.
Summary Judgment Standard
Rule 56, FED.R.CIV.P., requires that a motion for summary judgment be granted “if the
movant shows there is no genuine dispute as to any material fact and that the movant is entitled
to a judgment as a matter of law.” A material fact is one that might affect the outcome of the suit
under the governing law; a genuine dispute exists when the evidence is such that a reasonable
jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). On a motion for summary judgment, the Court views the evidence and draws
reasonable inferences most favorable to the non-moving party. Abarca v. Metropolitan Transit
Authority, 404 F.3d 938, 940 (5th Cir. 2005).
The party who bears the burden of proof at trial also bears the burden of proof at the
summary judgment stage. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). One seeking
summary judgment must identify those portions of the pleadings and discovery on file and any
affidavits which he believes demonstrate the absence of a genuine issue of material fact. Id., at
7

Cruse describes his ear condition as feeling like there is water in his ears. [105-1, p. 21]

325. If the movant fails to show the absence of a genuine issue concerning any material fact,
summary judgment must be denied, even if the non-movant has not responded to the motion.
John v. State of Louisiana, 757 F.2d 698, 708 (5th Cir. 1985). However, once the movant carries
its burden, the burden shifts to the non-movant to show summary judgment should not be
granted. The non-movant may not rest upon mere allegations or denials, but must set forth
specific facts showing there is a genuine issue for trial by either submitting opposing evidentiary
documents or referring to evidentiary documents already in the record which show a genuine
issue as to a material fact exists. Celotex, 477 U.S. at 324-325; Reese v. Anderson, 926 F.2d 494,
498 (5th Cir. 1991); Howard v. City of Greenwood, 783 F.2d 1311, 1315 (5th Cir. 1986) (nonmovant “must counter factual allegations by the moving party with specific, factual disputes;
mere general allegations are not a sufficient response.”). Conclusory allegations, unsubstantiated
assertions or the presence of a scintilla of evidence, will not suffice to create a real controversy
regarding material facts. Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990);
Hopper v. Frank, 16 F.3d 92, 97-98 (5th Cir. 1994); Davis v. Chevron U.S.A., Inc., 14 F.3d 1082,
1086 (5th Cir. 1994).
Exhaustion of administrative remedies
Exhaustion of administrative remedies through a jail or prison grievance system is a
jurisdictional prerequisite for lawsuits filed pursuant to 42 U.S.C. § 1983. Wright v.
Hollingsworth, 260 F.3d 357 (5th Cir. 2001).
No action shall be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are
exhausted.
42 U.S.C. § 1997e(a). The Fifth Circuit takes “a strict approach” to the exhaustion requirement.

See Johnson v. Ford, 261 Fed.Appx. 752, 755 (5th Cir. 2008). Exhaustion is mandatory for “all
inmate suits about prison life, whether they involve general circumstances or particular episodes,
and whether they allege excessive force or some other wrong.” Alexander v. Tippah County,
Miss., 351 F.3d 626, 630 (5th Cir. 2003)(quoting Porter v. Nussle, 534 U.S. 516, 532 (2002)).
Dismissal is appropriate where an inmate has failed to properly exhaust the administrative
grievance procedure before filing his complaint. Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir.
2012). The evidence before the Court shows that while Cruse filed several initial grievances for
a myriad of complaints, he never fully exhausted the three-step grievance procedure regarding the
May 12, 2015 incident of which he complains in this lawsuit before filing his May 20, 2015
complaint in this Court. Filing multiple first step grievances does not satisfy the obligation to
exhaust administrative remedies. Merely initiating the grievance process or putting prison
officials on notice of a complaint is insufficient to meet the exhaustion requirement – the
grievance process must be carried through to its conclusion before suit can be filed under the
Prison Litigation Reform Act. Wright, 260 F.3d at 358. Because Plaintiff has presented no
evidence that he ever completed all three steps of the administrative grievance process, the Court
finds the motion for summary judgment for failure to exhaust administrative remedies [44]
should be granted, and this case dismissed. Even if that were not the case, the Court would find
summary judgment appropriate under Defendants’ second motion [105].
Defendants’ motion for summary judgment on the merits
The Court finds Cruse’s complaint is of an episodic act rather than a general condition of
confinement at HCADC,8 but regardless of whether Cruse’s claimed injury from the use of the
distraction device during the May 12, 2015 shakedown is deemed an episodic act or a condition

8

See Scott v. Moore, 114 F.3d 51, 53 (5th Cir. 1997).

of confinement, the Court finds he has failed to present significant probative evidence to avoid
summary judgment. A complaint about an episodic act requires the Plaintiff to demonstrate the
Defendants acted with deliberate indifference to his needs. Hare v. City of Corinth, 74 F.3d 633,
647-48 (5th Cir. 1996). To act with deliberate indifference, “the official must both be aware of
facts from which the inference could be drawn that substantial risk of serious harm exists, and he
must also draw the inference.” Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995) (quoting
Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979 (1994)). Deliberate indifference
“is a stringent standard of fault” which requires proof that the actor “disregarded a known or
obvious consequence of his action.” Estate of Davis v. City of North Richland Hills, 406 F.3d
375, 381 (5th Cir. 2005). Negligence by a jail officer does not violate a pretrial detainee’s due
process rights for purposes of a § 1983 action; even gross negligence is insufficient to establish a
constitutional claim. Davidson v. Cannon, 474 U.S. 344, 348 (1986); Hare, 74 F.3d at 645
(citing Salazar v. City of Chicago, 940 F.2d 233, 238 (7th Cir. 1991)). This is true whether
Plaintiff is claiming Defendants used excessive force or that they failed to protect him during the
shakedown.
Excessive force
A pretrial detainee’s excessive force claim is analyzed in the same manner as a convicted
prisoner’s Eighth Amendment claim for use of excessive force. Valencia v. Wiggins, 981 F.2d
1440, 1446 (5th Cir. 1993). To establish such a claim, Cruse was required to show Defendants
used the distraction device “maliciously and sadistically for the very purpose of causing harm,”
rather than “in a good faith effort to maintain or restore discipline.” Hudson v. McMillian, 503
U.S. 1, 112 S.Ct. 995, 998 (1992), citing Whitley v. Albers, 475 U.S. 312, 320-321, 106 S.Ct.
1078, 1084-1085 (1986). It is undisputed that Immel and Cruse had never had any dealings with

one another prior to the May 12 shakedown, and that Immel deployed the distraction device
immediately upon entering B-Block B-Section. Immel’s affidavit states the device was not
intended to injure anyone, but to gain control of the situation by using the element of surprise.
Cruse concedes shakedowns are necessary to maintain a safe environment for inmates and
officers at the HCADC, and agreed it was in the best interests of the officers’ safety to catch the
inmates off-guard during a shakedown. [105-1, pp. 11-13] Cruse also testified he did not see
Immel look at him, that he has no evidence that Immel knew where he was located when Immel
entered the Section, and that he does not believe Immel used the device to intentionally hurt him.
[105-1, p. 15]
Failure to protect
To prevail on a claim for failure to protect under 42 U.S.C. § 1983, Cruse had to show he
was “incarcerated under conditions posing substantial risk of serious harm and that prison
officials were deliberately indifferent to his need for protection.” Newton v. Black, 133 F.3d 301,
308 (5th Cir. 1998). Cruse has presented no evidence to undergird any such findings. While
courts have defined the ability to hear as a basic human need,9 no evidence has been presented to
show that any of the Defendants knew, much less deliberately ignored, that the use of the
distraction device posed any inordinate danger to Cruse. None of the officers involved in the
shakedown wore ear protection, including Immel. Furthermore, even if this were considered a
general conditions of confinement case, the evidence before the Court indicates that the use of
the device was reasonably related to legitimate penological interests in safety, discipline and
order at the jail. Talib v. Gilley, 138 F.3d 211, 214 (5th Cir. 1998); Hare, 74 F.3d at 644-48.

9

Gilmore v. Hodges, 738 F.3d 266, 275 (11th Cir. 2013).

Municipal Liability
Cruse admits Sheriff Brisolara was not personally involved in the shakedown, and states
he sued the Sheriff and Harrison County due to the actions of their employees. [105-1, pp. 22-24]
Liability under § 1983 may not be based on respondeat superior, but only on a supervisor’s own
wrongful acts or omissions. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 n.58 (1978). It
must be based on more than the right to control employees, or simple awareness of employees’
misconduct. Leary v. Daeschner, 349 F.2d 888, 903 (6th Cir. 2003). The plaintiff is charged
with the requirement of showing that the individual official was either personally involved in a
deprivation of his rights or that the official committed wrongful acts which were causally
connected to such deprivation. See James v. Texas Collin County, 535 F.3d 365, 373 (5th Cir.
2008). “[P]ersonal involvement is an essential element of a civil rights action.” Thompson v.
Steele, 709 F.2d 381, 382 (5th Cir. 1983), cert. denied, 464 U.S. 897 (1983).
Neither Brisolara nor Harrison County is liable under § 1983 based on supervisory
liability or respondeat superior. Monell, 436 U.S. at 694 (“a local government may not be sued
under § 1983 for an injury inflicted solely by its employees or agents”). Governmental entities
such as the County are “responsible only for ‘their own illegal acts;’” they are “not vicariously
liable under § 1983 for their employees’ actions.” Connick v. Thompson, 563 U.S. 51, 60, 131
S.Ct. 1350, 1359 (2011)(citations omitted). To establish a foundation for a claim against the
County, Cruse had the burden of coming forward with evidence that the constitutional violation
he claims in this lawsuit, i.e., the use of excessive force or failure to protect by jail officers’ use
of a distraction device, resulted from some official policy, custom or practice of the County, that
the policy was the moving force behind the constitutional violation. Monell, 436 U.S. at 690692, 694; Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002); Lawson v. Dallas, 286

F.3d 257, 263 (5th Cir. 2002)(adding that the policy must reflect the municipality’s deliberate
indifference to the injury); Piotrowski v. City of Houston, 237 F.3d 567, 580 (5th Cir. 2001)
(equating moving force with a direct causal link between the policy and the constitutional
deprivation). An official policy cannot be inferred from a single unconstitutional act. Id., 237
F.3d at 581; Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987). The County can be held liable
under § 1983 only if it subjected Cruse to a deprivation of rights or caused him to be subjected to
such deprivation. Connick, 563 U.S. at 60, 31 S.Ct. at 1359. “Municipalities are not vicariously
liable for the actions of their employees under § 1983. Municipal liability inures only when the
execution of a local government’s policy or custom causes the injury.” Baker v. Putnal, 75 F.3d
190, 200 (5th Cir. 1996). Cruse was obligated to produce evidence that the allegedly
unconstitutional conduct was “directly attributable to [the County] through some sort of official
action or imprimatur; isolated unconstitutional actions by municipal employees will almost never
trigger liability.” Piotrowski, 237 F.3d at 578 (footnote and citations omitted). Cruse has not
presented evidence that his alleged injury was caused by a County custom, policy or practice, nor
has he identified any custom, policy or practice of the County as the moving force behind the
constitutional violation he alleges.
To the extent that Cruse claims liability of the County or Brisolara in his official capacity
on a theory of failure to train employees, the United States Supreme Court has held that “the
inadequacy of police training may serve as the basis for § 1983 liability only where the failure to
train amounts to deliberate indifference to the rights of persons with whom the police come into
contact.” City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). Cruse has made no such
showing in this case. The Court finds Cruse’s failure to present evidence to establish a

constitutional violation obviates the need to address Defendants’ qualified immunity argument as
to the claims against them in their individual capacities. The Court’s ruling renders moot
Plaintiff’s motions for jury trial [102] and for issuance of subpoenas [103]. Based on the
foregoing, it is therefore,
ORDERED AND ADJUDGED that:
1. Defendants’ motion for summary judgment [44] based on Plaintiff’s failure to exhaust
administrative remedies is granted, and this case is dismissed for failure to state a claim upon
which relief can be granted. In the alternative only, Defendants’ motion for summary judgment
[105] on the merits is granted.
2. Plaintiff’s motion for summary judgment [68] is denied.
3. Plaintiff’s motion for default judgment [69] is denied.
4. Plaintiff’s motion for jury trial [102] is held moot.
5. Plaintiff’s motion for issuance of subpoenas [103] is held moot.
A separate judgment will be entered.
SO ORDERED, this the 16th day of September, 2016.
/s/

Robert H. Walker

ROBERT H. WALKER
UNITED STATES MAGISTRATE JUDGE