Opinion
7:99-CV-173-R
January 16, 2001
MEMORANDUM OPINION AND ORDER
Came on to be considered Defendants' motion for summary judgment and the corresponding responses and replies and the Court finds and orders as follows:
This is an action brought pursuant to Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12131, et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Civil Rights Act of 1964, 42 U.S.C. § 1983. Plaintiff Gordon S. Clark is a resident of Eastland County, Texas. Plaintiff Michael J. Carlson is an inmate confined in the Allred Unit of the Texas Department of Criminal Justice in Iowa Park, Texas. At the time of the events giving rise to this action, Defendants were all employed by the Texas Department of Criminal Justice, Institutional Division.
Plaintiff Clark claims to suffer physical disabilities including the loss of one eye, blindness in the remaining eye and a hearing impairment that warrants the use of a hearing aid. Complaint ¶ 13. Clark is a friend of inmate Carlson and visits him at the Allred Unit. Id. ¶ 14-16. Their first visit was a non-contact visit in early 1997. Id. ¶ 17. Clark and Carlson were separated by a glass partition and spoke through a two-way telephone. Id. Plaintiffs claim that, because of his disabilities, Clark had difficulty seeing and hearing Carlson and that this prevented a meaningful visit between the two. Id. ¶¶ 17-19. In April of 1997, at the request of Plaintiff Carlson, Clark was given permission by Defendant Fox to have contact-visits with Carlson. Id. ¶ 21. Plaintiff Carlson claims that he was informed by Defendant Ivey that the contact-visits were approved because of Clark's disabilities. Id. On February 24, 1998, Plaintiffs' contact-visit privileges were suspended due to a "threat to the safety and security of the institution." Id. ¶ 31. However, Plaintiffs were allowed to continue with regular, non-contact visits. Id. Plaintiffs claim that the suspension of their contact-visits on the ground of institutional security was nothing more than a pretext for retaliation against Plaintiffs and discrimination based upon Clark's physical handicaps. Id. ¶ 33-35.
Plaintiffs now seek redress on the following grounds:
1. unlawful discrimination based upon Clark's disabilities in violation of § 504 of the Rehabilitation Act of 1973;
2. unlawful discrimination based upon Clark's disabilities in violation of the Americans With Disabilities Act of 1990;
3. denial of due process of law in violation of the Fifth and Fourteenth Amendments;
4. deliberate indifference to the needs of Plaintiff Clark, a visually and hearing impaired person;
5. denial of equal protection in violation of the Fourteenth Amendment;
6. denial of access to the courts and redress of grievances by discrimination and retaliation in violation of the First Amendment;
7. discrimination against Clark based upon his relationship with Carlson and because of his disabilities;
8. denial of the receipt of public services in violation of the Americans with Disabilities Act;
9. denial of unencumbered visitation between the Plaintiffs;
10. suspension of contact visits between Plaintiffs under pretext and without just cause;
11. unlawful retaliation against Plaintiff Clark because of his relationship with Carlson and because of Carlson's prison grievances and civil rights action against Defendant Woods;
12. a false claim that Plaintiff Clark is a threat to the safety and security of the prison;
13. creating a communication barrier between Plaintiffs in violation of the Americans with Disabilities Act;
14. suspending contact visit privileges between Plaintiffs for retaliatory purposes, and;
15. denial of Plaintiff Carlson's access to the courts and denial of his right to communicate freely with family and friends through contact visits.Complaint ¶¶ 36-54.
Claims under the Civil Rights Act of 1964
Plaintiffs claim that Defendants, in violation of 42 U.S.C. § 1983, unlawfully suspended their prison contact visit privileges without just cause, under pretext for retaliatory purposes and with deliberate indifference to the needs of Plaintiff Clark, a visually and hearing impaired person.
It is well settled that "[v]isitation privileges are a matter subject to the discretion of prison officials." Berry v. Brady, 192 F.3d 504, 508 (5th Cir. 1999) (quoting McCray v. Sullivan, 509 F.2d 1332, 1334 (5th Cir.), cert. denied, 423 U.S. 859, 96 S.Ct. 114 (1975)). An inmate has no constitutional right to contact visitation privileges. See Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300 (1995) (holding that a prisoner's liberty interest is "generally limited to freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life."); Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861. 1878 (1979) (stating that prison officials should be accorded the widest possible deference in the application of polices and practices designed to maintain security and preserve internal order); Berry, 192 F.3d at 508 (citing McCray, 509 F.2d at 1334). Thus, it follows, a fortiori, that prison officials' refusal to allow a private citizen contact visits with an inmate does not run afoul of the United States Constitution.
In Block v. Rutherford, 468 U.S. 576, 104 S.Ct. 3227 (1984), the Supreme Court explained:
That there is a valid, rational connection between a ban on contact visits and internal security of a detention facility is too obvious to warrant extended discussion. The District Court acknowledged as much. Contact visits invite a host of security problems. They open the institution to the introduction of drugs, weapons, and other contraband. Visitors can easily conceal guns, knives, drugs, or other contraband in countless ways and pass them to an inmate unnoticed by even the most vigilant observers. And these items can readily be slipped from the clothing of an innocent child, or transferred by other visitors permitted close contact with inmates.Block, 468 U.S. at 586, 104 S.Ct. at 3232-33. The summary judgment evidence filed in the instant action demonstrates that Plaintiffs' contact visits were suspended for security reasons after Warden Fox learned that Plaintiff Clark had attended a Ku Klux Klan rally. Defendants' Motion for Summary Judgment. Appendix at pp. 30, 34, 39, 54-58, 67-69. Clearly, such a decision is rationally related to the legitimate penological purpose of preserving security and order in the Allred Unit.
Plaintiffs claim that their contact visits were suspended for retaliatory purposes. Prison officials may not retaliate against an inmate for the exercise of a constitutionally protected right. Woods v. Smith, 60 F.3d 1161, 1165 (5th Cir. 1995), cert. denied, 516 U.S. 1084, 116 S.Ct. 800 (1996); Gibbs v. King, 779 F.2d 1040, 1046 (5th Cir.), cert. denied, 476 U.S. 1117, 106 S.Ct. 1975 (1986). When action on the part of a prison official is motivated by retaliation against a prisoner for exercising such a right, the conduct of the official is actionable under 42 U.S.C. § 1983, even though the action by the official, when taken for a different reason, might have been legitimate. Woods, 60 F.3d at 1165. In order to show retaliation an inmate must: (1) allege the violation of a specific constitutional right; and (2) establish that the incident would not have occurred but for a retaliatory motive. Johnson v. Rodriguez, 110 F.3d 299, 313 (5th Cir.), cert. denied, 522 U.S. 995, 118 S.Ct. 559 (1997); Woods v. Smith, 60 F.3d at 1166. This places a significant burden on the plaintiff. Mere conclusory allegations are insufficient to state a retaliation claim. Woods v. Smith, 60 F.3d at 1166; Richardson v. McDonnell, 841 F.2d 120, 122-23 (5th Cir. 1988). The inmate must produce direct evidence of motivation or "allege a chronology of events from which retaliation may plausibly be inferred." Woods v. Smith, 60 F.3d at 1166 (quoting Cain v. Lane, 857 F.2d 1139, 1143 n. 6 (7th Cir. 1988)). The relevant showing in such cases must be more than the prisoner's "personal belief that he is the victim of retaliation." Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir.) (quoting Woods v. Edwards, 51 F.3d 577, 580 (5th Cir. 1995)), cert. denied, 522 U.S. 995, 118 S.Ct. 559 (1997). Trial courts are required to carefully scrutinize civil rights actions based on claims of retaliation as those claims "must be regarded with skepticism." Woods v. Smith, 60 F.3d at 1166 (quoting Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994), cert. denied, 514 U.S. 1022, 115 S.Ct. 1371 (1995)).
Plaintiffs claim that Defendants suspended their contact visit privileges in retaliation for grievances and a lawsuit filed by Plaintiff Carlson against Defendant Woods and for retaliatory purposes because of Plaintiff Clark's relationship with Plaintiff Carlson. A review of the summary judgment evidence presented to this Court reflects that Plaintiffs' contact visits were suspended for security reasons after Warden Fox learned that Clark had attended a Ku Klux Klan (KKK) rally. Defendants' Motion for Summary Judgment, Appendix at pp. 30, 34. 39, 54-58, 67-69. The fact that Clark attended the rally is undisputed by Plaintiffs. Further review of the pleadings and summary judgment evidence reflects that Plaintiffs have failed to articulated any facts or submit any competent summary judgment evidence which would indicate that their contact visit privileges were suspended by Defendants for any other reasons, retaliatory or otherwise. Plaintiffs' conclusory allegations of retaliation are simply insufficient to overcome Defendants' summary judgment evidence. See Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987) (recognizing the potential for abuse in claims of retaliation, requiring a high level of detail in pleading such claims and affirming dismissal of a "wholly conclusory" retaliation claim).
Plaintiffs claim that Defendants acted with deliberate indifference to the needs of Plaintiff Clark, a visually and hearing impaired person. Complaint ¶ 39. Claims of deliberate indifference in a civil rights action arise under the Eighth Amendment and are typically brought by inmates in the context of denial of medical care or failure to protect an inmate from assault. Deliberate indifference is a subjective standard which occurs only where a prison official knows of and disregards a substantial risk to an inmate's health or safety. Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979 (1994). Deliberate indifference requires that "the [offending] official must both be aware of facts from which the inference could be drawn that a 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, 511 U.S. at 837, 114 S.Ct. at 1979). There is nothing in the record of the instant case which would support an allegation that either Plaintiff was ever at risk of serious harm. Therefore, Plaintiffs' claim of deliberate indifference must fail.
Plaintiffs claim that Defendants falsely accused Plaintiff Clark of being a threat to the safety and security of the Allred Unit. Complaint ¶ 47. To the extent, if any, that Clark presents claims of defamation and damage to his reputation arising out of the circumstances associated with the denial of contact visits, he has failed to state a cognizable claim under § 1983. Allegations of an injury solely to a plaintiffs reputation are insufficient to establish § 1983 liability. Oliver v. Collins, 904 F.2d 278, 281 (5th Cir. 1990); Geter v. Fortenberry, 849 F.2d 1550, 1556 (5th Cir. 1988); Savage v. Snow, 575 F. Supp. 828, 837 (S.D.N.Y. 1983). To establish liability under § 1983, more must be involved than simple defamation, even if the defamatory remarks are uttered by a state actor. E.g. Paul v. Davis, 424 U.S. 693, 711-12, 96 S.Ct. 1155, 1165-66 (1976); Geter v. Fortenberry, 849 F.2d at 1556; Cook v. Houston Post, 616 F.2d 791, 794 (5th Cir. 1980). Such claims may appropriately be addressed under state tort law. Paul v. Davis, 424 U.S. at 712, 96 S.Ct. at 1165.
In his final ground for relief under 42 U.S.C. § 1983, Plaintiff Carlson claims that he has been unlawfully denied access to the Courts through discrimination and retaliation on the part of Defendants in violation of the First Amendment. Complaint ¶ 50. Prisoners have a right of access to the courts; this access must be "adequate, effective, and meaningful." Bounds v. Smith, 430 U.S. 817, 823, 97 S.Ct. 1491, 1495 (1977). Actual injury is a constitutional prerequisite to maintaining a claim involving denial of access to the courts. Lewis v. Casey, 518 U.S. 343, 35 1-52, 116 S.Ct. 2174, 2180 (1996). In the case at bar, Plaintiff Carlson alleges that some of his supplies relating to legal correspondence were lost, stolen, confiscated or destroyed. Brief in Support of Plaintiffs' Reply to Defendants' Motion for Summary Judgment p. 1. However, there is nothing in the record of this case which suggests, and Plaintiffs make no claim, that Defendants prevented Carlson from filing pleadings, motions, responses and otherwise complying with court orders and procedures. The Court may take judicial notice of the eleven-page docket sheet in the instant case wherein Plaintiffs have filed 5 pleadings, memorandums and briefs, 24 motions, 10 responses and replies, and 6 notices, designations and advisories. Carlson has not identified any specific instance in which he was unable to file pleadings, comply with court orders, or maintain any lawsuit. A review of Carlson's litigation history reveals that he has filed a total of four civil actions in the Texas federal courts. Thus, it is readily apparent he has not been denied access to the courts. In short, Plaintiffs have not presented any allegation which could be construed to state such a claim.
See Carison v. Maclas, 4:93-CV-2990 (S.D. Tex. 1994); Carison v. Collins, 4:94-CV-2086 (S.D. Tex. 1994); Carison v. Woods, 7:97-CV-129 (N.D.Tex. 1998); Clark v. Woods, 7:99-CV-173 (N.D.Tex. 2001).
Claims under Title II of the Americans with Disabilities Act of 1990
Plaintiffs claim that Defendants unlawfully discriminated against them because of Clark's visual and aural disabilities thereby creating a communication barrier between Plaintiffs and denying them the receipt of public services in violation of the Americans With Disabilities Act of 1990.
Title II of the Americans With Disabilities Act of 1990 (ADA) prohibits public entities, including state prisons, from discriminating against a qualified individual with a disability because of that individual's disability. 42 U.S.C. § 12132; Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206, 208, 118 S.Ct. 1952, 1953 (1998). The purpose of the ADA is to eliminate discrimination against people with physical disabilities and to provide enforceable standards with which to address such discrimination. Lightbourn v. County of El Paso, Tex., 118 F.3d 421, 430 n. 9 (5th Cir. 1997), cert. denied, 522 U.S. 1052, 118 S.Ct. 700 (1998).
To establish a Title II claim under the ADA, a plaintiff must show: (1) that he is a qualified individual within the meaning of the act, (2) that he is being excluded from participation in, or being denied benefits of services, programs or activities for which the defendant is responsible, or that he has otherwise been discriminated against by the defendant and (3) that such exclusion, denial of benefits or discrimination is by reason of the plaintiffs disability. Lightbourn, 118 F.3d at 428.
Defendants argue that, because of the information received by Defendant Fox indicating that Plaintiff Clark had some affiliation or connection with the KKK, and because of security concerns inherent with contact visits in the prison environment, Clark was no longer a person "qualified" for contact visits with inmates. Defendants' Brief in Support of Motion for Summary Judgment p. 6. They seeks dismissal of Plaintiffs' ADA claims.
Plaintiffs argue that Clark's attendance at a KKK rally is irrelevant to his ADA claims and that Clark is not a racist. Plaintiffs' Reply to Defendants' Motion for Summary Judgment p. 7. Plaintiffs further argue that, even if Clark was a racist, the ADA does not exempt or preclude racists from its protections against discrimination. Id.
Although it is clear that there is no constitutional right to contact visits with inmates or by inmates, Berry v. Brady, 192 F.3d at 508, if a state prison provides such a program to the general public, the ADA mandates that the contact visitation program not be implemented or maintained in a manner which impairs the objectives of the ADA with regard to disabled individuals. However, in the prison environment, especially in a maximum security institution such as the James V. Allred Unit, effective prison administration requires that policies be implemented or determinations be made to assess whether an individual is "qualified" to participate in certain activities, programs or services. When an individual is excluded, the decision of prison authorities must be reasonably related to a legitimate penological interest. See Gates v. Rowland, 39 F.3d 1439, 1446-47 (9th Cir. 1994) (applying the reasonable relationship test to inmates' statutory claims brought under the Rehabilitation Act). Where, as in the case at bar, participation in a prison program by an individual gives rise to a security risk, officials are justified, under the reasonable relationship test, in excluding such an individual from the program. See Onishea v. Hopper, 171 F.3d 1289, 1301 (11th Cir. 1999), cert. denied, 528 U.S. 1114, 120 S.Ct. 931 (2000) (finding the reasonable relationship test applicable in determining whether an inmate was "otherwise qualified" for services, programs or activities under the Rehabilitation Act). "A prisoner's rights are diminished by the needs and exigencies of the institution in which he is incarcerated. He thus loses those rights that are necessarily sacrificed to legitimate penological needs." Moore v. Carwell, 168 F.3d 234, 236-37 (5th Cir. 1999) (quoting Elliott v. Lynn, 38 F.3d 188, 190-91 (5th Cir. 1994), cert. denied, 514 U.S. 1117, 115 S.Ct. 1976 (1995).
The summary judgment evidence before this court establishes that Plaintiffs' contact visits were discontinued based upon the legitimate penological interest in maintaining order and security in the institution. Defendants' Motion for Summary Judgment, Appendix at pp. 30, 34, 39, 54-58, 67-69; Plaintiffs' Reply to Defendants' Motion for Summary Judgment, Appendix at pp. 10, 14, 19, 23. Plaintiff Clark was observed attending a KKK rally and it was determined that Plaintiff Carlson was a member of the Aryan Nations, a white supremacist group. Id. Plaintiffs have failed to present any summary judgment evidence to rebut this finding or any evidence which would support their claim that Defendants actions were taken on account of Clark's disabilities. As stated by the United States Supreme Court, "[t]hat there is a valid, rational connection between a ban on contact visits and internal security of a detention facility is too obvious to warrant extended discussion." Block v. Rutherford, 468 U.S. at 586, 104 S.Ct. at 3232-33.
Contact visits with SAT-3 status prisoners are permitted at the Alfred Unit for prisoners' immediate family members and other individuals who are approved by prison administrators for acceptable reasons. Defendants' Motion for Summary Judgment, Appendix at p. 78. Plaintiffs make no claim and they have presented no evidence to show that similarly situated individuals without disabilities were allowed contact visits with non-family members at the Allred Unit. Pursuant to the determination of Warden Fox, Plaintiff Clark was no longer a person qualified for contact visits with inmate Carlson. Such a determination is best left to the discretion of prison officials. To hold otherwise would inappropriately involve the Court in the micromanagement of the common daily incidents of prison life. See Sandin v. Conner, 515 U.S. 472, 482-83, 115 S.Ct. 2293, 2299-2300 (1995) (citing with disapproval, cases claiming or finding constitutionally protected interests in dictionaries, tray lunches, unrestricted furlough travel, big cells with television outlets, food loafs and boot camp participation). Therefore, Plaintiffs' claim of discrimination under the Americans with Disabilities Act must fail.
Plaintiffs seek declaratory relief restoration of their contact visits and monetary damages. Complaint pp. 8-9. To the extent, if any, that Plaintiffs seek an order of the Court directing compliance with the Americans With Disabilities Act in the Allred Units' non-contact visitation areas, they failed to request such relief in their complaint. See id. Moreover, they have presented no argument as to what type of accommodation would be appropriate in non-contact visitation areas and they have presented no evidence to demonstrate that Defendants could reasonably accommodate any such request, if made.
Similarly, Plaintiffs claims of Retaliation in violation of the Americans with Disabilities act must fail. As discussed above, the summary judgment evidence demonstrates that Defendant Fox terminated Plaintiffs' contact visits for institutional security reasons. Other than Plaintiffs' conclusory allegations, there is nothing before this Court to support their claim of retaliation.
Claims under the Rehabilitation Act of 1973
Plaintiffs claims that they were subjected to unlawful discrimination based upon Clark's disabilities in violation of § 504 of the Rehabilitation Act of 1973. Complaint ¶ 36. Defendants argue that Plaintiffs' Rehabilitation Act claim must be dismissed pursuant to Plaintiffs' failure to allege that the program or activity from which they claim to have been excluded receives federal financial assistance. Defendants' Brief in Support of Motion for Summary Judgment p. 4.
The Rehabilitation Act provides that "[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . ." 29 U.S.C. § 794(a).
The Fifth Circuit Court of Appeals has "held that to state a § 504 claim a plaintiff must allege that the specific program or activity with which he or she was involved receives or directly benefits from federal financial assistance. Lightbourn v. County of El Paso, Tex., 118 F.3d 421, 427 (5th Cir. 1997) (citing Brown v. Sibley, 650 F.2d 760, 767-71 (5th Cir. Unit A 1981)). As correctly pointed out by Defendants, Plaintiffs failed to make this allegation in their complaint Moreover, as with Plaintiffs' ADA claim, the competent summary judgment evidence before the Court clearly demonstrates that Plaintiffs' contact visitation privileges were suspended for reason of institutional security rather than for discriminatory purposes. Accordingly, Plaintiffs' Rehabilitation Act claim is without merit.
Defense of Qualified Immunity
Defendants' motion for summary judgment is premised, in part, on the defense of qualified immunity. Defendants' Brief in Support of Motion for Summary Judgment pp. 14-17. Plaintiffs have filed a response to Defendants' motion for summary judgment in which they have had ample opportunity to set forth the facts of their case with particularity and in which they have had ample opportunity to challenge Defendants' qualified immunity defense as required under Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995) (en banc).
Government officials are entitled to qualified immunity from suit when performing discretionary functions unless their conduct violated statutory or constitutional rights, clearly established at the time of the alleged incident, of which a reasonable person would have known. Gibson v. Rich, 44 F.3d 274, 277 (5th Cir. 1995). The question of qualified immunity should be resolved at the earliest possible stage of litigation because it involves an entitlement to immunity from suit. Hunter v. Bryant, 502 U.S. 224, 226, 112 S.Ct. 534, 536 (1991); accord Gibson, 44 F.3d at 277. The first step in evaluating a government official's entitlement to a defense of qualified immunity is to determine both what the current applicable law is and whether it was clearly established at the time of the events giving rise to the lawsuit. Schultea v. Wood, 47 F.3d at 1432 (citing Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 1793 (1991)). If the plaintiff has stated a violation of a constitutional or statutory right which was clearly established at the time, the court should then determine whether a reasonable official would have understood that his or her conduct violated that right. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039 (1987).
Although incarcerated, inmates retain some first Amendment rights. See Turner v. Safley, 482 U.S. 78, 89-91, 107 S.Ct. 2254, 2261-62 (1987) (finding that inmates retain their First Amendment right to the free exercise of religion, subject to reasonable restrictions and limitations necessitated by penological goals). Prison officials have a duty to accommodate such rights unless there is a legitimate penological interest which prevents accommodation. See Eason v. Thaler, 14 F.3d 8, 10 (5th Cir. 1994) (acknowledging prison officials' duty to accommodate inmates' religious food restrictions absent a legitimate penological interest that prevents accommodation).
An inmate's visitation privileges are subject to the discretion of prison officials. Berry v. Brady, 192 F.3d 504, 508 (5th Cir. 1999). Prisoners have no constitutional right to contact visits with members of the general public. Berry, 192 F.3d at 508. Therefore, Defendant Fox's action in terminating Plaintiffs' contact visit privileges does not rise to the level of a constitutional violation. Similarly, the termination of Plaintiffs' contact visits did not constitute a violation of the Americans with Disabilities Act or the Rehabilitation Act under the circumstances of this case. Plaintiffs have not identified any conduct on the part of any Defendant which could possibly demonstrate discrimination based upon disability in violation of either act. See Hall v. Thomas, 190 F.3d 693, 696-97 (5th Cir. 1999) (finding qualified immunity applicable to ADA complaints.). Thus, it is clear from the facts of this case, viewed in a light most favorable to Plaintiffs, that Defendants are entitled to qualified immunity.
Summary Judgment Standard
Summary judgment is proper when the pleadings and evidence illustrate that no genuine issue exists as to any material fact and that the movant is entitled to judgment or partial judgment as a matter of law. Fed.R.Civ.P. 56(c); Slaughter v. Southern Talc Co., 949 F.2d 167, 170 (5th Cir. 1991). Disputes concerning material facts are genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986)). Substantive law provides that an issue is "material" if it involves a fact that might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Burgos v. Southwestern Bell Telephone Co., 20 F.3d 633, 635 (5th Cir. 1994). The nonmovant is not required to respond to the motion until the movant properly supports his motion with competent evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986); Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). However, once the movant has carried his burden of proof, the nonmovant may not sit idly by and wait for trial. Page v. DeLaune, 837 F.2d 233, 239 (5th Cir. 1988).
When a movant carries his initial burden, the burden then shifts to the nomnovant to show that the entry of summary judgment is inappropriate. Celotex, 477 U.S. at 322-24, 106 S.Ct. at 2552-53; Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). Although the nonmovant may satisfy this burden by tendering depositions, affidavits, and other competent evidence, "conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's burden," Douglass, 79 F.3d at 1429, as "the adverse party's response must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Merely colorable evidence or evidence not significantly probative, however, will not defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11. Furthermore, a mere scintilla of evidence will not defeat a motion for summary judgment. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512; Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1086 (5th Cir. 1994).
Summary judgment evidence is viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986); Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993). In addition, factual controversies are resolved in favor of the nonmovant, but only when both parties have submitted evidence of contradictory facts, thus creating an actual controversy. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). In the absence of any proof, however, the Court does not assume that the nonmovant could or would prove the necessary facts. Id.
In making its determination on the motion, the Court looks at the full record including the pleadings, depositions, answers to interrogatories, admissions, and affidavits. Fed.R.Civ.P. 56(c); Williams v. Adams, 836 F.2d 958, 961 (5th Cir. 1988). However, "the [Court's] function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. The movant's motion for summary judgment will be granted if he meets his burden and the nonmovant fails to make the requisite showing that a genuine issue exists as to any material fact. Fed.R.Civ.P. 56(c); Campbell v. Sonat Offshore Drilling, 979 F.2d 1115, 1119 (5th Cir. 1992).
The record in this case and the summary judgment evidence presented to this Court establish that there are no genuine issues of material fact with regard to Plaintiffs' claims.
IT IS THEREFORE ORDERED that Defendants' motion for summary judgment is GRANTED and that Plaintiffs' complaint is hereby DISMISSED with prejudice.
Costs are to be born by the party incurring the same.
The Clerk of Court shall transmit a true copy of this Order to Plaintiffs and to Counsel for Defendants.
JUDGEMENT
This action came on for consideration by the Court, and the issues having been duly considered and a decision duly rendered,
IT IS ORDERED, ADJUDGED AND DECREED that Defendants' motion for summary judgment is GRANTED and the complaint is hereby DISMISSED with prejudice.
The Clerk of Court shall transmit a true copy of this Judgment to Plaintiffs and to Counsel for Defendants.