Huff v. Pundt et al

Filing 48

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT re: 39 MOTION for Summary Judgment, 40 MOTION for Summary Judgment, 45 Memorandum and Recommendations, 32 MOTION for Summary Judgment (Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
CHESTER LOWE HUFF,
Plaintiff,
VS.
KIMBERLY PUNDT, et al,
Defendants.

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§ CIVIL ACTION NO. C-11-148
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ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

Pending before the Court are: (1) Plaintiff’s Motion for Summary Judgment
seeking judgment on the Defendants’ deliberate indifference to serious medical needs
(D.E. 32); (2) Plaintiff’s second Motion for Summary Judgment to the same effect (D.E.
39); and (3) Defendants’ Motion for Summary Judgment based on qualified immunity
and Plaintiff’s entitlement to monetary damages (D.E. 40). On June 29, 2012, United
States Magistrate Judge B. Janice Ellington issued a Memorandum and Recommendation
(D.E. 45), recommending that all of the motions be denied and that this matter proceed to
trial.

Defendants filed their Objections (D.E. 46) on July 17, 2012 stating seven

objections to the Magistrate Judge’s findings and conclusions. Each will be addressed in
the order briefed.

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A. Hearsay Evidence
Defendants object to the Magistrate Judge’s reliance on a hearsay statement by
which Officer Raab allegedly told Plaintiff that Officer Pundt had authorized the shower
to be used. While the Court agrees that this constitutes inadmissible hearsay, the Court
finds that it is cumulative of the abundant evidence that Officer Pundt was aware of the
problems with the shower, was in a position to take action to get the problems repaired or
take it out of service, but that the shower remained unrepaired and in service. Thus there
was sufficient evidence to defeat Defendants’ summary judgment without reference to
this hearsay statement. The Court OVERRULES the first objection.
B. Shower Condition on Extraneous Dates
Defendants object to the Magistrate Judge’s consideration of the shower’s
condition on any date other than January 31, 2011 and February 2, 2011, the only dates
on which the Plaintiff was taken to the shower by officers. Defendants argue that any
other dates are irrelevant or immaterial to the complaint of unconstitutional conditions of
confinement. This argument is predicated on a fundamental misrepresentation of the
hygienic needs of a working and sanitary shower. While Plaintiff was taken by force to
use the unsanitary and dangerous shower on two occasions (and refused to shower on at
least one of those occasions), the fact that the shower was dangerous on other occasions
caused him to refuse showers or to bathe in his sink and/or toilet. The condition of the
shower affected his daily life whether or not he was directly exposed to it. Defendants’
second objection is OVERRULED.

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C. Consideration of Other Showers
Defendants object to the Magistrate Judge’s reference to multiple problems
identified with respect to the shower because, they argue, the only issues identified for
the only dates to be considered are the light being out and “bear wires.” As discussed
above, the Defendants’ view of relevant dates is too narrow. The Court has reviewed
Plaintiff’s Exhibit J and finds sufficient support for a finding of chronic health threats
posed by the shower at issue without reference to any other showers. Defendants’ third
objection is OVERRULED.
D. One Day is Not Sufficiently Serious and Persistent
Defendants object that Plaintiff’s complaint, treated as one compelled use of a
dangerous and unsanitary shower, does not constitute a serious and persistent condition
of confinement, thus raising the Plaintiff’s complaint to a constitutional level.

As

discussed above, the Court does not accept Defendants’ argument that only one or two
days are at issue. There is sufficient evidence to show that the shower was unsanitary
and dangerous over a period of at least four months, during which time Plaintiff was
chronically without the means of taking a sanitary shower. Defendants’ fourth objection
is OVERRULED.
E. Physical Injury
Defendants object that the Magistrate Judge erred in finding sufficient evidence
that Plaintiff suffered a physical injury to support his claims under the Prison Litigation
Reform Act, 42 U.S.C. § 1997e(e). Contrary to Defendants’ representation in their
Objections, Plaintiff’s Complaint seeks more than just compensatory damages. The
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Complaint lists the following as the relief sought: unspecified damages, injunctive relief,
declaratory judgment, and “any other relief I am entitle [sic] to.”

D.E. 1, p. 4.

Defendants concede that a showing of physical injury is not necessary to support a claim
for injunctive or declaratory relief. Objections, D.E. 46, p. 8. Neither is it necessary to
demonstrate a physical injury pursuant to § 1997e(e) in order to recover nominal or
punitive damages for a constitutional violation. E.g., Hutchins v. McDaniels, 512 F.3d
193, 198 (5th Cir. 2007) (collecting cases). Thus, this issue does not entitle Defendants to
summary judgment dismissing Plaintiff’s claims.
The narrower question is whether, under the state of this record, Defendants are
entitled to summary judgment dismissing Plaintiff’s claim for compensatory damages.
Under summary judgment practice, the movant must show “that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). More specifically,
A party asserting that a fact cannot be . . . genuinely disputed
must support the assertion by: (A) citing to particular parts of
materials in the record . . . ; or (B) showing that the materials
cited do not establish the . . . presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.
Fed. R. Civ. P. 56(c)(1). Defendants did not satisfy this summary judgment burden with
respect to compensatory damages.
Again, Defendants seek to tie Plaintiff’s complaint to the two days he was escorted
to the shower, which the Court rejects. Plaintiff has testified to the unsanitary conditions
in which he lived, including not being able to bathe or bathing in his toilet. He testified
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that, as a result, he suffered an eye infection for which he was given antibiotics. His eye
infection is supported by medical evidence. D.E. 40-4, p. 32. Moreover, the fact that he
sought and received medical attention for an infection requiring an antibiotic could be
some evidence of cause with respect to unsanitary conditions.
Defendants’ summary judgment acknowledges that Plaintiff did suffer an eye
infection and did seek medical attention. However, based only on argument, they suggest
that Plaintiff’s infection or his effort to get medical attention was too late to be causally
related to his months of being without sanitary bathing facilities. The Court is not
required to accept Defendants’ subjective interpretation of the facts when those facts
could give rise to equal and opposite inferences. N.L.R.B. v. Brookwood Furniture, Div.
of U.S. Industries, 701 F.2d 452, 467 (5th Cir. 1983) (conclusion based on timing of
events could substantiate either of two equal inferences).

They have not produced

summary judgment evidence of any competent medical authority that defeats causation.
While Defendants note that the doctor who treated Plaintiff did not provide a medical
opinion supporting causation, their failure to supply an opinion defeating causation
prevents summary judgment on this record. Under such circumstances, Defendants have
not met their summary judgment burden.
Last, Defendants suggest that the eye infection is a de minimis injury. For this
argument, their motion cited only Exhibit D, p. 30 (D.E. 40-4, p. 32). That is a single
page of Plaintiff’s medical record, which shows that Plaintiff did suffer from swelling of
the left eye and cheek, that he had a sty, and that he was treated with warm compresses
and both Amoxicillin and Gentak. While this is enough to show more than a de minimis
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injury at the summary judgment stage, Plaintiff’s medical records also show that he
complained of this infection over three months, from April 3, 2011 to June 3, 2011,
without resolution of the condition. This is sufficient to show more than a de minimis
injury.
Thus Defendants have not shown that there is no physical injury to support
compensatory damages for trial. Furthermore, no such evidence is required for Plaintiff
to obtain nominal damages, punitive damages, an injunction, or a declaratory judgment.
Defendants’ fifth objection is OVERRULED.
F. Medical Causation
Defendants object that the Magistrate Judge’s interpretation of the facts was
“speculation” or “hypothesis” in refusing summary judgment based on causation of
physical injury. As demonstrated above, Defendants offered nothing better than their
own “speculation” or “hypothesis” to complain of that element of proof and consequently
did not sustain their summary judgment burden.

The Magistrate Judge correctly

demonstrated the fallacy of Defendants’ argument by showing equal and opposite
inferences. The Court OVERRULES Defendants’ sixth objection.
G. Objectively Reasonable Actions
With respect to their qualified immunity defense, Defendants complain that there
is no genuinely disputed issue of material fact as to the objective reasonableness of their
actions. They suggest that, to overcome their summary judgment motion, Plaintiff had to
show that Defendants actually ordered officers to take Plaintiff to the unsanitary and
dangerous shower or that they were subjectively aware that Plaintiff was being ordered to
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use the shower before maintenance issues were completed. The evidentiary standard is
not so high.
The objective evidence shows, inter alia, that for the better part of five months the
shower at issue had no working light and that bare electrical wires extended from the
broken light fixture. The same issue appearing on inspection after inspection is some
evidence that reasonable measures were not taken to repair the shower. Plaintiff also
demonstrated that the shower was in service and he was, personally, expected to use it in
its unrepaired and hazardous condition.

Defendants have offered no evidence to

overcome the Plaintiff’s testimony and the inspection records in this case. Given that the
Defendants’ jobs involved assuring the safety of the facility and that they were provided
with the inspection reports, the record contains some evidence of their failure to ensure
that repairs were made and that the shower was placed out of service until the repairs
were made.

Plaintiff offered sufficient evidence to defeat Defendants’ summary

judgment and the Court OVERRULES the Defendants’ seventh objection.
H. Conclusion
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s Memorandum and Recommendation, as well as
Defendants’ Objections, and all other relevant documents in the record, and having made
a de novo disposition of the portions of the Magistrate Judge’s Memorandum and
Recommendation

to

which

objections

were

specifically

directed,

the

Court

OVERRULES Defendants’ Objections and ADOPTS as its own the findings and
conclusions of the Magistrate Judge. Accordingly, the motions for summary judgment
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(D.E. 32, 39, and 40) are DENIED and this case is ordered to proceed to trial on the
merits.
ORDERED this 20th day of July, 2012.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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