Brown v. Hood et al

Filing 93

ORDER granting in part and denying in part 82 Motion for Summary Judgment as set out in the Order. Brown is instructed to show cause within ten days why his claim against Defendant Captain Johnson should not be dismissed. The parties are directed to contact the magistrate judge to set this matter for a settlement conference. Signed by Chief District Judge Daniel P. Jordan III on October 29, 2019. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
LEONARD BROWN

PLAINTIFF

V.

CIVIL ACTION NO. 3:17-CV-50-DPJ-FKB

JIM HOOD, ATTORNEY GENERAL OF THE
STATE OF MISSISSIPPI, ET AL.

DEFENDANTS

ORDER
Plaintiff Leonard Brown claims Defendants Marshal Turner and Jacquelyn Banks
retaliated against him for complaining about an assault and denial of medical care. Turner and
Banks, in their individual capacities, moved for summary judgment [82]. Brown opposes the
motion. For the reasons explained, the Court finds Defendants’ motion should be granted as to
Banks and granted in part and denied in part as to Turner.
I.

Background
In 2015, Brown was incarcerated at the South Mississippi Correctional Institution

(“SMCI”). Defendant Turner served as warden of Brown’s unit, and Defendant Banks was the
superintendent of the Mississippi Department of Corrections (“MDOC”). On July 24, 2015,
inmates at SMCI stabbed Correctional Officer Zachary Bolton, and Officer Bolton identified
Brown as one of his assailants. See Turner Aff. [82-2] at 3 (Incident Detail). For his part,
Brown denies any involvement. Brown Aff. [88] at 2. This lawsuit stems from three events that
transpired after that attack.
First, Brown says that Correctional Officers Keyes and Lucker––in response to the attack
on Officer Bolton––beat him, sexually assaulted him with a K-9 stick, and placed him in a cold
cell for several days. Brown Aff. [88] at 3–4. When he requested medical attention and basic

supplies, prison officials denied his requests. Id. at 4. Brown claims that the officers told him
they were following Warden Turner’s instructions. Id. at 30.
Second, MDOC placed Brown in Administrative Segregation, during and after the
investigation of the attack on Officer Bolton. Banks Aff. [82-1] at 3–4. According to Brown,
officers repeatedly threatened to kill him during this period “for complaining to prison officials
about being sexually assaulted.” Brown Aff. [88] at 3. Brown therefore reached out to
Defendant Banks in August 2015. He wrote that he “did not feel safe at SMCI” and requested
“to be transferred to another correctional facility away from the corrections officers who were
torturing and threatening [him].” Id. at 6. Brown says Banks failed to respond. Id.
Third, MDOC issued a Rule Violation Report (“RVR”) to Brown finding he participated
in the attack on Officer Bolton. Brown Aff. [88] at 5; see Banks Aff. [82-1] at 7 (attaching RVR
finding Brown assaulted Officer Bolton). Brown appealed, and the appeal was rejected by
Warden Turner. Brown Aff. [88] at 5.1
In response, Brown filed this lawsuit against Mississippi Attorney General Jim Hood,
Warden Turner, Superintendent Banks, Officer Lucker, Officer Davis, Officer Keys, and Captain
Johnson. Brown alleged Defendants violated his rights under the First, Fourth, Eighth, and
Fourteenth Amendments to the United States Constitution and also violated state law.
The disposition of those claims is a little complicated and begins on January 31, 2018.
On that day, the Court dismissed the official-capacity and state-law claims against Warden
Turner and Superintendent Banks, as well as the claims against Attorney General Hood. Order
[51]. The Court also found Warden Tuner was entitled to qualified immunity on Brown’s Eighth

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MDOC issued a second RVR to Brown around the same time period that he also appealed, but
there is not a legible copy of this RVR in the record. Turner Aff. [82-2] at 8 (illegible RVR).
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Amendment delay-in-medical-care claim. Id. at 11. Based on Brown’s limited response to
Defendants’ motion to dismiss, the Court concluded that he had waived the following claims:
“(1) Fourth Amendment unlawful arrest claim; (2) claims related to the cold and uncomfortable
cell; (3) failure to protect; (4) denial of ARP request; and (5) First Amendment.” Id. at 9 n.2.
On July 25, 2018, the Court dismissed Brown’s claims against Officer Keys in his official
and individual capacities but granted Brown an opportunity to seek leave to amend. Order [57].
Brown declined to do so. Then on December 6, 2018, the Court granted Brown’s motion for
default judgment against Officer Lucker, in his individual capacity, “on the issue of liability
alone.” Order [72] at 1 (quoting Pl.’s Mot. [66] at 4). As to Officer Davis, Defendants filed a
suggestion of death [70] on November 14, 2018. Finally, it does not appear that Brown ever
served Captain Johnson. Unexecuted Summons [7] (noting Johnson no longer works for
MDOC); Third Mot. for Extension of Time to Serve Process [44] (filed Oct. 23, 2017) (seeking
additional time to serve Johnson).
That leaves Brown’s claim that Warden Turner and Superintendent Banks retaliated
against him for complaining about the sexual assault and the lack of medical care. The Court
previously denied Defendants’ motion to dismiss that claim under Rule 12(b)(6) but noted that
they could raise the issue again at the summary-judgment stage. Order [51] at 13. Turner and
Banks have done just that; their motion is fully briefed; and the Court has subject-matter
jurisdiction.
II.

Standards
A.

Summary Judgment

Summary judgment is warranted under Federal Rule of Civil Procedure 56(a) when
evidence reveals no genuine dispute regarding any material fact and that the moving party is

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entitled to judgment as a matter of law. The rule “mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The party moving for summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. The
nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing
that there is a genuine issue for trial.’” Id. at 324 (citation omitted). In reviewing the evidence,
factual controversies are to be resolved in favor of the nonmovant, “but only when . . . both
parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc). When such contradictory facts exist, the court may “not make
credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000). Conclusory allegations, speculation, unsubstantiated assertions, and
legalistic arguments have never constituted an adequate substitute for specific facts showing a
genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir.
2002); Little, 37 F.3d at 1075; SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993).
B.

Qualified Immunity

Turner and Banks assert qualified immunity as to Brown’s retaliation claims against them
in their individual capacities. As the Fifth Circuit recently summarized:
[T]he doctrine of qualified immunity protects government officials from civil
damages liability when their actions could reasonably have been believed to be
legal. This immunity protects all but the plainly incompetent or those who
knowingly violate the law. Accordingly, we do not deny immunity unless
existing precedent must have placed the statutory or constitutional question
beyond debate. The basic steps of this court’s qualified-immunity inquiry are
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well-known: a plaintiff seeking to defeat qualified immunity must show: (1) that
the official violated a statutory or constitutional right, and (2) that the right was
clearly established at the time of the challenged conduct.
Anderson v. Valdez, 845 F.3d 580, 599–600 (5th Cir. 2016) (citation and quotation marks
omitted, punctuation altered).
Courts use a two-step analysis to determine whether qualified immunity applies. “[A]
court addressing a claim of qualified immunity must determine first whether the plaintiff has
adduced facts sufficient to establish a constitutional or statutory violation.” Collier v.
Montgomery, 569 F.3d 214, 217 (5th Cir. 2009) (citing Saucier v. Katz, 533 U.S. 194, 201
(2001)). Second, if a violation has been alleged, the Court must determine “‘whether [the
officer’s] actions were objectively unreasonable in light of clearly established law at the time of
the conduct in question.’” Id. (alteration in original) (quoting Freeman v. Gore, 483 F.3d 404,
411 (5th Cir. 2007)). And “[w]hen a defendant raises qualified immunity, the burden is on the
plaintiff to ‘demonstrate the inapplicability of the defense.’” Coleman v. Marion Cty., No. 2:14CV-185-DPJ-FKB, 2015 WL 5098524, at *6 (S.D. Miss. Aug. 31, 2015) (quoting McClendon v.
City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002)).
III.

Analysis
At the outset, the Court notes that Brown appears to rehash previously dismissed claims

in his response to Defendants’ motion. See Pl.’s Resp. [89] at 9–11. For example, he insists
Warden Turner subjected him to cold conditions “in conscious disregard of the risk of serious
bodily harm” and denied him medical treatment. Id. at 10–11. To support his arguments, Brown
now provides factual details allegedly linking Warden Turner to those asserted deprivations. See
Brown Aff. [8] at 3. But Brown neither pleaded those facts in his Complaint nor sought leave to

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add them in an amended Complaint. As it stands, the Court has already dismissed all claims
against Warden Turner and Superintendent Banks, other than the retaliation claim.
A.

Retaliation

Generally speaking, “[f]iling grievances and otherwise complaining about the conduct of
correctional officers through proper channels are constitutionally protected activities, and prison
officials may not retaliate against inmates for engaging in such protected activities.” Butts v.
Martin, 877 F.3d 571, 589 (5th Cir. 2017) (quoting Reese v. Skinner, 322 F. App’x 381, 383 (5th
Cir. 2009)) (internal quotation marks omitted). But “‘[t]he prospect of endless claims of
retaliation on the part of inmates would disrupt prison officials in the discharge of their most
basic duties. Claims of retaliation must therefore be regarded with skepticism, lest federal courts
embroil themselves in every disciplinary act that occurs in state penal institutions.’” Woods v.
Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (quoting Adams v. Rice, 40 F.3d 72, 74 (4th Cir.
1994)).
“To establish retaliation, a prisoner must show ‘(1) a specific constitutional right, (2) the
defendant’s intent to retaliate against the prisoner for his or her exercise of that right, (3) a
retaliatory adverse act, and (4) causation.’” Joseph v. Dykes, 368 F. App’x 511, 513 (5th Cir.
2010) (quoting McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998)). Causation requires a
showing that “‘but for the retaliatory motive’” the incident would not have occurred. McDonald,
132 F.3d at 231 (quoting Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997)).
Here, Brown insists he exercised his
First Amendment right by speaking out about being subjected to freezing
temperatures, not being provided medical treatment for the serious injuries he
suffered as a result of the sexual assault by a guard, reporting the abuse and
threats on his life by prison guards, and requesting to be transferred to another
facility.
Pl.’s Resp. [89] at 12. As for the way Defendants allegedly retaliated, Brown says,
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Warden Turner retaliated against him by not providing medical treatment,
ordering that he be placed in a cold freezing cell without a blanket or clothes, and
summarily denying his RVRs. Superintendent Banks retaliated against him by
not transferring the corrections officers who threatened him and by not
transferring him to another prison.
Id.
B.

Warden Turner

The first qualified-immunity question is whether Brown has established a constitutional
violation. To begin, some of the retaliation Brown alleges occurred before he complained; for
example, being placed in the cold cell. Pre-speech conduct is not retaliatory. See, e.g., Watkins
v. Tex. Dep’t of Crim. Justice, 269 F. App’x 457, 461 (5th Cir. 2008) (noting—in employment
context—that actions that predate participation in any protected activity are not retaliatory).
The timing of the remaining conduct is not entirely clear. Nevertheless, the Court must
read the record in the light most favorable to Brown. And in that light, he seems to say that
Warden Turner kept him in unconstitutionally harsh conditions because Brown complained
about the sexual assault and the conditions themselves. Being left in extreme cold without
clothing, a blanket, or post-sexual-assault medical care could constitute cruel and unusual
punishment if proven. See Bibbs v. Early, 541 F.3d 267, 271–72 (5th Cir. 2008) (“[W]e are
persuaded that Bibbs has raised a cognizable claim of retaliation by alleging and providing
supporting evidence that he exercised his First Amendment rights and was then subjected to
below-freezing temperatures for more than four hours during each of four consecutive nights—a
measure of retaliation.”); Palmer v. Johnson, 193 F.3d 346, 353 (5th Cir. 1999) (subjecting
prisoner to cold without protection of jackets or blankets “may have risen to the level of a
constitutional deprivation”) (collecting cases). The motion therefore turns on whether Warden
Turner intended to retaliate for the complaints and would not have so treated Brown but for

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them. In other words, but for Brown’s complaints, would the Warden have left Brown in those
conditions anyway.
As noted, Brown must show that his complaint was the “but for” cause of alleged
retaliation. That said, ‘“but-for cause’ does not mean ‘sole cause.’” Leal v. McHugh, 731 F.3d
405, 415 (5th Cir. 2013) (citation omitted). And here, Brown makes two sworn statements that
speak to intent and causation. First, he states that while in the cold cell, he complained about the
conditions and the lack of medical care following the alleged sexual assault but was informed
that Warden Turner had instructed the guards “not to give [Brown] anything.” Brown Aff. [88]
at 4. Second, he states that after he was moved, officers repeatedly came by his cell threatening
to “physically beat . . . and kill [Brown] for complaining to prison officials about being sexually
assaulted . . . and physically assaulted.” Id.
While Brown never argues that the subsequent visits constitute retaliation, they would
evince Warden Turner’s alleged intent to retaliate against Brown for complaining to “officials”
about the conditions and the alleged sexual assault. Id. Whether Warden Turner actually left
Brown in such conditions longer than he would have but for the complaints presents a question
of fact for the jury. See Bibbs, 541 F.3d at 272 (finding prisoner had “at minimum raised a
question of material fact on his retaliation claim”); see also Firman v. Life Ins. Co. of N. Am.,
684 F.3d 533, 538 (5th Cir. 2012) (“Even if the standards of Rule 56 are met, a court has
discretion to deny a motion for summary judgment if it believes that ‘the better course would be
to proceed to a full trial.’”) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
Turning to the RVRs, Brown claims Warden Turner retaliated against him by denying his
appeal; that claim fails for lack of causation. Warden Turner possessed information that Officer
Bolton identified Brown as his assailant and therefore affirmed the RVR finding that he

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participated in the attack. Turner Aff. [82-2] at 2. Moreover, “an inmate has no constitutional
right to have incidents at the prison investigated or resolved in the manner that he desires.” Ware
v. Tanner, No. 12-2250, 2013 WL 5589506, at *5 (E.D. La. Oct. 10, 2013) (citing Geiger v.
Jowers, 404 F.3d 371, 373–74 (5th Cir. 2005) (stating there is no right for prisoners to have
complaints resolved to their satisfaction)).
Having found a fact question on whether Warden Turner retaliated against Brown, the
Court finds that the law was clearly established at the time of the alleged acts. See Bibbs, 541
F.3d at 272; Palmer, 193 F.3d at 353.
In sum, Warden Turner’s summary-judgment motion on the retaliation claim is granted
as to the RVRs and any conduct allegedly occurring before Brown complained. It is otherwise
denied.
C.

Superintendent Banks

Turning next to Superintendent Banks, Brown says he exercised his First Amendment
rights by requesting to be transferred to another facility and Banks retaliated by denying that
request. Pl.’s Resp. [89] at 12. In her motion, Banks insists that Brown’s classification and
housing assignment were correct based on the circumstances and he cannot demonstrate an intent
to retaliate. Defs.’ Mem. [83] at 12–13.2
Initially, MDOC assigned Brown a “medium” classification. Banks Aff. [82-1] at 3.
But in 2014, following incidents at Walnut Grove Correctional Facility (“Walnut Grove”),

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Banks also argues that Brown cannot show his housing assignment qualifies as an adverse
retaliatory act, such that an inmate would be deterred from exercising his constitutional rights.
Id. at 12–13 (citing Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006)). But the Fifth Circuit
has recognized that transfer to a “more dangerous section” of a prison is a sufficiently adverse
retaliatory act. Morris, 449 F.3d at 686 (noting de minimis standard). The record here is scant
on the conditions in Administrative Segregation relative to the rest of the facility, so the Court
declines to pursue this argument.
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MDOC changed his classification to “close” and transferred him to SMCI. Id. After the attack
on Officer Bolton, MDOC placed Brown in Administrative Segregation “pending an
investigation into the assault.” Id. at 4. Once MDOC concluded Brown was involved, he
remained in Administrative Segregation “pending reclassification as a result of his role in the
assault.” Id. MDOC returned Brown to “medium” classification on May 19, 2017. Id. at 6
(MDOC Classification History).
As for Brown’s complaints, Superintendent Banks confirmed that she received a letter
from Brown on August 21, 2015, claiming that he did not feel safe. Id. at 4. She responded by
writing, “You are appropriately housed. Your life is not in danger. Transfer is denied.” Id.; see
id. at 16 (Brown Letter to Banks). Banks denies retaliating against Brown by manipulating his
housing assignment and confirms that Brown’s “close custody” status and his placement in
administrative segregation were based on his history at Walnut Grove and his involvement in the
attack on Officer Bolton. Id. at 4–5; see McCord v. Maggio, 910 F.2d 1248, 1250 (5th Cir.
1990) (“Classification of prisoners is a matter left to the discretion of prison officials.”).
On this record, Banks says there is no evidence to suggest that “but for” a retaliatory
motive Brown would have been transferred out of SMCI. Defs.’ Mem. [83] at 13; see
McDonald, 132 F.3d at 231. The Court agrees. At best, Brown says Superintendent Banks
failed to adequately investigate his request for transfer. Brown Decl. [88] at 6–7; see Ware, 2013
WL 5589506, at *5 (noting inmate did not have a “constitutional right to have incidents at the
prison investigated or resolved in the manner that he desires”). But he has not directed the Court
to evidence that Superintendent Banks refused that request because Brown made it. In other
words, Brown fails to show that but for asking Banks to transfer him she would have done so.
See Richardson v. McDonnell, 841 F.2d 120, 122 (5th Cir. 1988) (affirming summary judgment

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where prison official explained that plaintiff was moved because he “was verbally abusing prison
officials and was disrupting meal schedules”); see also Morris v. Cross, 476 F. App’x 783, 785
(5th Cir. 2012) (finding plaintiff “failed to ‘establish that but for the retaliatory motive,’ his
property would not have been seized”) (quoting Woods, 60 F.3d at 1166).
Unlike the claim against Warden Turner, the record evidence regarding Superintendent
Banks—when viewed in the light most favorable to Brown—fails to demonstrate a triable
question of fact on intent or causation. The motion for summary judgment is therefore granted
as to her.
V.

Conclusion
The Court has considered all arguments; those not addressed would not have changed the

outcome. For the reasons stated, Defendants’ motion for summary judgment [82] is granted as to
Superintendent Banks; granted as to Warden Turner regarding alleged acts before Brown
complained and related to the RVR appeal; and otherwise denied as to Warden Turner.
Brown is instructed to show cause within ten days why his claim against Defendant
Captain Johnson should not be dismissed under Federal Rule of Civil Procedure 4(m) for failure
to perfect service of process.
Finally, the parties are directed to contact the magistrate judge to set this matter for a
settlement conference.3
SO ORDERED AND ADJUDGED this the 29th day of October, 2019.

s/ Daniel P. Jordan III
CHIEF UNITED STATES DISTRICT JUDGE

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Once the settlement conference is scheduled, the Court will reset the pretrial conference and
place the case on the trial calendar.
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