Brown v. Sims et al

Filing 52

MEMORANDUM OPINION AND ORDER granting 43 Motion for Summary Judgment. Plaintiff's claims are dismissed with prejudice. A separate Judgment will be entered herein. Signed by District Judge Keith Starrett on 7/24/12 (scp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION

WILLIE M. BROWN

PLAINTIFF

v.

CIVIL ACTION NO.: 2:11cv57-KS-MTP

BRENDA SIMS, ET AL.

DEFENDANTS

MEMORANDUM AND ORDER
Standard of Review
This Court may grant summary judgment only if, viewing the facts in a light most
favorable to Plaintiff, the Defendants demonstrate that there is no genuine issue of material fact
and that they are entitled to judgment as a matter of law. Woods v. Smith, 60 F.3d 1161, 1164
(5th Cir. 1995). If the Defendants fail to discharge the burden of showing the absence of a
genuine issue concerning any material fact, summary judgment must be denied. John v.
Louisiana, 757 F.2d 698, 708 (5th Cir. 1985). The existence of an issue of material fact is a
question of law that this court must decide, and in making that decision, the Court must “draw
inferences most favorable to the party opposing the motion and take care that no party will be
improperly deprived of a trial of disputed factual issues.” John, 757 F.2d at 708, 712. There
must, however, be adequate proof in the record showing a real controversy regarding material
facts. “Conclusory allegations,” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 902 (1990),
unsubstantiated assertions, Hopper v. Frank, 16 F.3d 92, 96-97 (5th Cir. 1994), or the presence
of a “scintilla of evidence,” Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1086 (5th Cir. 1994), is
not enough to create a real controversy regarding material facts. “[T]he mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly supported

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motion for summary judgment; the requirement is that there be no genuine issue of material
fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In the absence of proof, the
court does not “assume that the nonmoving party could or would prove the necessary facts.”
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (emphasis omitted).
Review of Report and Recommendation
On June 21, 2012, United States Magistrate Judge Michael T. Parker entered a Report
and Recommendation on the matter [49]. First, the Magistrate Judge found that Defendants
Superintendent King, Warden Denmark, and Deputy Warden Davis cannot be liable for the
actions of subordinates under a theory of vicarious liability since 42 U.S.C. § 1983 does not
“create supervisory or respondeat superior liability.” Oliver v. Scott, 276 F.3d 736, 742 & n.6
(5th Cir. 2002). In relation to this claim against a government entity, the Magistrate Judge found
that the Plaintiff failed to show an unconstitutional policy, custom, or practice of SMCI since a
plaintiff must prove that a policy, custom, or practice of a local government entity is the “moving
force” behind a constitutional violation to be entitled to relief. Monell v. Dep’t of Social Servs.,
436 U.S. 658, 694 (1978).
Second, the Magistrate Judge found that the Plaintiff’s privacy rights were not violated
since deference is given to prison administrators because “[p]risoners retain, at best, a very
minimal Fourth Amendment interest in privacy after incarceration.” Oliver, 276 F.3d at 744. The
Magistrate Judge also applied the four factors from Turner: (1) whether the regulation has a
“valid, rational” connection to the governmental interest put forth to justify it; (2) whether the
inmate has alternative methods for exercising the right in question; (3) the impact that
accommodation would have on other inmates or prison staff; and (4) the existence of easy, rather
than hard alternatives to the challenged regulation or policy. Turner v. Safley, 482 U.S. 78, 89-90

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(1987). In regards to the first factor, affidavits provided by the Defendants showed that the
presence of female guards at SMCI is required to maintain security, and their presence during
strip searches is directly related to that security interest. More importantly, since females make
up 67 percent of the staff at SMCI, female officers are deemed crucial to security interests. See
Ex. B to Motion [43-2]. In regards to the second factor, strip searches are conducted in the
presence of a supervisor, when possible, and Captain Sims is a supervisory level officer. See Exs.
B-D to Motion [43-2][43-3][43-4]. In regards to the third and fourth factors, prohibiting female
officers from ever being present during strip searches of male inmates would create an
administrative burden and have a negative impact on public security and job availability for
females in the area since more male officers would have to be hired to complete the tasks that
females would no longer be able to complete. See Ex. to Motion [43-2].
After applying the four factors in Turner, the Magistrate Judge found further law to
support that the Plaintiff’s privacy right had not been violated. See Letcher v. Turner, 968 F.2d
508, 510 (5th Cir. 1992) (holding that the presence of female guards during a strip search that
took place during a lock-down following a food fight did not violate the prisoner’s right to
privacy); see also Tasby v. Lynaugh, 123 F. App’x 614, 615 (5th Cir. 2005) (“This court has held
that strip searches carried out in nonsecluded areas of the prison and in the presence of prison
employees of the opposite sex are not unconstitutional.”) (citing Letcher, 968 F.2d at 510; Elliott
v. Lynn, 38 F.3d 188, 190-92 (5th Cir. 1994); Oliver v. Scott, 276 F.3d 736, 747 (5th Cir. 2002));
Roden v. Sowders, 84 F. App’x 611, 613 (6th Cir. 2003) (holding that dismissal of Plaintiff’s
privacy claim was proper since, even though he was strip searched in the presence of a female,
the defendants had met their burden of establishing a reasonable penological interest of security

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and order under the circumstances, and further stating that whether the defendant laughed and
purposely humiliated the plaintiff was not a constitutional issue.)
Third, the Magistrate Judge found the allegations that Captain Sims laughed and
purposefully humiliated the Plaintiff in regards to his nudity would not amount to a constitutional
violation and were, therefore, irrelevant. See supra Roden, 84 F. App’x at 613. The affidavits
provided by the Defendants show that these allegations are false. See Exs. A-D to Motion [431][43-2][43-3][43-4]. Although, even if these allegations were true, since the actions do not
amount to a constitutional violation, they are irrelevant.
Fourth, the Magistrate Judge found that the Plaintiff’s allegation that his filed grievance
was not investigated properly did not give rise to a constitutional claim since there is no
constitutional right to a grievance procedure and no liberty interest right to having his grievance
resolved to his satisfaction. See Geiger v. Jowers, 404 F.3d. 371, 374-75 (5th Cir. 2005); Jones v.
Shabazz, No. H-06-1119, 2007 WL 2873042 at 21 (E.D. Tex. Sept. 28, 2007); McGowan v. Peel,
No. 3:06cv659-DPJ-JCS, 2007 WL 710154 at 1-2 (S.D. Miss. March 6, 2007); Hernandez v.
Estelle, 488 F.2d 1154, 1158 (5th Cir. 1986) (holding that actual failure of a prison official to
follow the prison’s own regulation or policy does not amount to a constitutional violation).
Furthermore, since the Plaintiff is no longer housed at SMCI, his requests for injunctive relief for
an order 1) requiring SMCI to follow the proper policies and procedures regarding strip searches
and 2) requiring SMCI officers to conduct strip searches outside of the presence of female
officers are moot.
Fifth, the Magistrate Judge found that the Plaintiff’s allegation of retaliation by Captain
Sims did not give rise to a constitutional violation and was, therefore, irrelevant. To prevail on a
retaliation claim, the Plaintiff must show “(1) a specific constitutional right, (2) the defendant’s

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intent to retaliate against the prisoner for his . . . exercise of that right, (3) a retaliatory adverse
act, and (4) causation.” McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998); see also Jones
v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999) (holding that the plaintiff “must allege more
than his personal belief that he is the victim of retaliation.”). At the very least, a plaintiff must
present either direct evidence of retaliatory motivation or “a chronology of events from which
retaliatory motivation may be plausibly inferred” since mere conclusory allegations are
insufficient. Woods, 60 F.3d at 1166. The affidavits provided by the Defendants show that these
allegations are false. See Exs. A and C to Motion [43-1][43-3].
Furthermore, even if the retaliation allegation was true, the Magistrate Judge found it to
be de minimis. “Some acts, though maybe motivated by retaliatory intent, are so de minimis that
they would not deter the ordinary person from further exercise of his rights. Such acts do not rise
to the level of constitutional violations and cannot form the basis of a § 1983 claim.” Morris v.
Powell, 449 F.3d 682, 684-85 (5th Cir. 2006); see also Marks v. Edwards, Civil Action No. 3:11cv-0114, 2011 WL 2559785 at 6 (W.D. La. Apr. 29, 2011) (holding that “yelling” was a de
minimis retaliatory adverse act and did not amount to a constitutional violation). Therefore, even
if this allegation was true, since Captain Sims’ alleged actions would not amount to a
constitutional violation, it is still irrelevant. Again, since the Plaintiff is no longer housed at
SMCI, his requests for injunctive relief for an order 1) directing that either Captain Sims be
stationed away from his housing unit or that he be moved away from her and 2) directing her not
to retaliate against him are moot.
Sixth, the Magistrate Judge found that the Defendants’ qualified immunity defense was
irrelevant because “if it becomes evident that the plaintiff has failed to state or otherwise
establish a claim, the defendant is entitled to dismissal on that basis.” Wells v. Bonner, 45 F.3d

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90, 93 (5th Cir. 1993) (citation omitted); see also Sappington v. Bartee, 195 F.3d 234, 236 (5th
Cir. 1999). Since the Magistrate Judge found that the Plaintiff’s claims are not valid
constitutional claims, he declined to address the issue of whether the Defendants are entitled to
qualified immunity. The Magistrate Judge recommended that the Court grant the Defendants’
Motion for Summary Judgment [43] and dismiss the Plaintiff’s claims with prejudice.
On July 10, 2012, the Plaintiff filed his Objection to the Magistrate Judge’s Report and
Recommendations [50], albeit five (5) days after the deadline for objections. In the interest of
caution and equity, this Court has conducted an independent review of the entire record and a de
novo review of the matters raised by the Plaintiff’s objections, as required by 28 U.S.C. §
636(b)(1). However, there are no substantive objections for the Court to resolve, as the Plaintiff
failed to address the legal issues raised by the Magistrate Judge’s Report and Recommendations.
Moreover, the Court declines to address the allegation against the Defendants of perjury raised
by the Plaintiff in his Objection to Report and Recommendations [50] since even if his
allegations are true and the affidavits provided by the Defendants are false, the claims still do not
give rise to the level of a constitutional violation. Further, the Plaintiff failed to address the
Magistrate Judge’s conclusion that his factual assertions, even if true, did not give rise to any
constitutional claims. Instead, the Plaintiff merely rephrased the same assertions made in prior
pleadings.
IT IS THEREFORE ORDERED the Report and Recommendation of Magistrate Judge
Michael T. Parker entered on June 21, 2012, be, and hereby is, adopted in whole pursuant to 28
U.S.C. § 636(b)(1) as the finding of this Court. Accordingly, for the reasons set forth in the
Magistrate Judge's Report and Recommendation, it is

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ORDERED that the Defendants’ Motion for Summary Judgment [43] be, and hereby is,
GRANTED; and the Plaintiff's claims are DISMISSED WITH PREJUDICE. A separate
judgment will be entered pursuant to Rule 58.
SO ORDERED AND ADJUDGED on this, the 24th day of July, 2012.
S/ Keith Starrett
UNITED STATES DISTRICT JUDGE

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