Opinion
Civil Action No. 00-1468 Section "K"(2)
October 31, 2001
Before the Court is defendants' motion for summary judgment with respect to the plaintiffs Eighth Amendment failure to protect claims involving inmate Jody Duplechain. Based on the record and the Spears hearings of October 5, 2000 and April 17, 2001, that claim involves all three defendants, Sargent Master Wilton Lebo, Sargent Donnie Seal, and Sargent Moses. For the reasons that follow, plaintiff is ordered to file a Schultea reply for all three defendants, relating to each defendant's involvement in the alleged Jody Duplechain incident, and the defendants' motion for summary judgment is DENIED WITHOUT PREJUDICE.
Sargent Master Lebo and Sargent Donnie Seal are being sued for the alleged Robert Odom incident (an incident outside the scope of this motion for summary judgment).
BACKGROUND
The plaintiff Steven Gallagher, is an inmate at Washington Correctional Institute ("WCI") in Angie, Louisiana. On July 24, 2000, Gallagher filed a pro se complaint alleging various constitutional claims against numerous state defendants. On October 5, 2000, Magistrate Judge Wilkinson, conducted a Spears hearing, during which plaintiff elaborated verbally upon his claims. Following the Spears hearing, Judge Wilkinson issued a Report and Recommendation recommending that all claims against all defendants be dismissed with prejudice, except for the plaintiffs Eighth Amendment failure to protect claims involving alleged attacks by inmates Robert Odom and Jody Duplechain in May and June 2000, respectively. It was further recommended that Sargent Master Wilton Lebo be added as a named defendant together with Sargent Donnie Seal. This Court adopted Judge Wilkinson's recommendation on February 14, 2001. On February 21, 2001, the plaintiff filed a motion to amend his complaint to add Sargent Christine Moses as a defendant asserting that she failed to protect him from the alleged attack by Jody Duplechain in June 2000. A preliminary telephonic conference was held on April 17, 2001, during which Judge Wilkinson conducted a Spears hearing concerning the plaintiff's motion. Following the conference, Judge Wilkinson granted the plaintiffs request to add Sargent Moses as a defendant.
Defendants filed their answer on April 25, 2001, asserting as an affirmative defense, among other things, qualified immunity. On May 30, 2001, defendants filed their first motion for summary judgment asserting that the plaintiff failed to exhaust administrative remedies concerning the plaintiff's failure to protect claim involving inmate Robert Odom. That motion has since been denied without prejudice, to be re-urged, if necessary, after further discovery. While the first motion was pending, defendants filed this second motion for summary judgment with respect to the plaintiffs remaining failure to protect claim involving inmate Jody Duplechain.
See this Court's order of July 12, 2001.
LAW AND APPLICATION I. Qualified Immunity and the Schultea Reply
Defendants assert that as prison guards they are entitled to the defense of qualified immunity. They are correct. See Procunier v. Navarette, 434 U.S. 555, 561, 98 S.Ct. 855, 859, 55 L.Ed.2d 24 (1978);Smith v. Wade, 461 U.S. 30, 32-33, 103 S.Ct. 1625, 1628, 75 L.Ed.2d 632 (1983). Qualified immunity shields government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Qualified immunity is meant to give government officials a right not merely to avoid standing trial, but also to avoid such pretrial matters as discovery, because such inquiries can be peculiarly disruptive to effective government. Behrens v. Pelletier, 516 U.S. 299, 308, 116 S.Ct. 834, 839, 133 L.Ed.2d 773 (1996). That is, qualified immunity provides immunity from suit, not simply immunity from liability. Foster v. City of Lake Jackson, 28 F.3d 425, 428 (5th Cir. 1994). Therefore, qualified immunity decisions should be resolved at the earliest possible stage of litigation, even before discovery if possible. Schultea v. Wood, 47 F.3d 1427, 1432 (5th Cir. 1995).
Qualified immunity analysis involves a two-step process. First, a court examines whether the plaintiff has alleged a violation of a clearly established constitutional right. Shipp v. McMahon, 234 F.3d 907, 911 (5th Cir. 2000). If the Court determines that the plaintiff has done so, the next step is to determine whether the official's conduct was objectively reasonable at the time of the incident. Id. at 912. Objective reasonableness is a matter of law for the courts to decide. Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994).
The Fifth Circuit has held that when a defendant raises the defense of qualified immunity in his answer, a district court may order the plaintiff to file a Rule 7(a) "Schultea reply" tailored to the defense of qualified immunity. Schultea, 47 F.3d at 1433-34. In the reply, plaintiff must articulate the specific conduct and action giving rise to a constitutional violation. Id. Furthermore, the reply must support the plaintiffs claim with sufficient precision and factual specificity to raise a genuine issue as to the illegality of the defendants' conduct at the time of the alleged acts. Schultea, 47 F.3d at 1434. The reply, known as a Schultea reply, is evaluated under a heightened pleading standard.Baker v. Putnal, 75 F.3d 190, 195 (5th Cir. 1996).
II. Pro Se Complaints and the Spears Hearing
Pro se civil rights complaints must be liberally construed. Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994). However, the Fifth Circuit has indicated that in a case raising the issue of immunity, once given adequate opportunity, even a pro se complaint must contain specific facts supporting its conclusion. Jackson v. City of Beaumont Police Dept., 958 F.2d 616, 621 (5th Cir. 1992); Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir. 1986). In this case then, despite the broad latitude generally given to pro se complaints, the plaintiffs pro se complaint must meet the heightened pleading requirements involved with qualified immunity.
In this case, plaintiff has participated in two Spears hearings, the first on October 5, 2000, and the second on April 17, 2001. The information elicited at such an evidentiary hearing is in the nature of an amended complaint or a more definite statement under Federal Rule of Civil Procedure 12(e). Wilson v. Barrientos, 926 F.2d 480, 482 (5th Cir. 1991); Adams v. Hansen, 906 F.2d 192, 194 (5th Cir. 1990). Therefore, the plaintiffs verbal statements during the Spears hearings will be considered as part of his complaint for the purpose of evaluating whether the plaintiff has pleaded facts with sufficient particularity to survive the heightened requirements associated with qualified immunity.
III. Failure to Protect under the Eighth Amendment
Under the Eighth Amendment, prison officials have a duty to protect inmates from violence by other inmates and to take reasonable measures to protect their safety. Farmer v. Brennan, 511 U.S. 825, 832-33, 114 S.Ct. 1970. 1976-77, 128 L.Ed.2d 811 (1994); Hare v. City of Corinth, 74 F.3d 633, 650 (5th Cir. 1996). A prison official violates the Eighth Amendment when two requirements are met. Farmer, 511 U.S. at 834, 114 S.Ct. at 1977, 128 L.Ed. 2d 811. First, the failure to protect from harm must be sufficiently serious, which means that the inmate must show he was incarcerated under conditions posing a substantial risk of serious harm. Id. Second, the prison official must have acted with a deliberate indifference to inmate health or safety. Id. Deliberate indifference means that a prison official is liable only if he knows that the inmate faces a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it. Farmer, 511 U.S. at 847, 114 S.Ct. at 1984, 128 L.Ed.2d 811 The official must be aware of facts from which the inference can be drawn that a substantial risk of serious harm exists and he must also draw that inference. Farmer, 511 U.S. at 837, 114S at 1979, 128 L.Ed.2d 811. Subjective recklessness, as used in the criminal law, is the appropriate test for deliberate indifference. Norton v. Dimazana. 122 F.3d 286, 291 (5th Cir. 1997).
IV. Application to Defendants Lebo and Seal
Plaintiff alleges that the three defendants are liable because they failed to protect him from an attack by Jody Duplechain. The plaintiff explains asserts that as he was being transported from the medical department of WCI to his cell area in "Sleet Lockdown," he was struck on the head by Jody Duplechain, who was pushing the plaintiffs wheelchair. With respect to defendants Lebo and Seal, the plaintiff merely stated during the Spears hearings that they were responsible for the attack by Jody Duplechain. The plaintiff asserted that Sgt. Master Lebo and Sgt. Seal ordered the alleged assault, stating that Duplechain was told, "if you get a chance, hit him in the head." Concerning Lebo and Seal, the plaintiff also said they "stand in front of my cell and say different things . . .," presumably negative remarks. These allegations are bare and vague concerning both the circumstances surrounding Lebo and Seal's involvement in the Duplechain incident and the plaintiffs basis for the allegations. The plaintiff has not expanded upon these allegations, and the Court needs more of the Duplechain story filled in with respect to defendants Lebo and Seal.
Exactly who made that comment is hard to decipher based on the plaintiffs Spears testimony.
Therefore, the plaintiff is ordered to file a Schultea reply with respect to defendants Lebo and Seal for the alleged Jody Duplechain attack, tailored in accordance with qualified immunity law and theFarmer requirements for a failure to protect cause of action. That is, for his respective claims against Sargent Master Lebo and Sargent Seal with respect to the alleged Jody Duplechain incident, the plaintiff is ordered to plead with sufficient particularity facts indicating (1) a substantial risk of serious harm existed, (2) that defendants Lebo and Seal were each individually aware of that risk, (3) that they each failed to abate the risk, and (4) that they each were unreasonable in their conduct. The plaintiff must be specific about the facts surrounding Lebo and Seal's involvement and about the basis for his assertions. If the plaintiff is not specific enough about a defendant, in accordance with the heightened requirements of qualified immunity, his claim against that defendant for the Jody Duplechain incident will be dismissed.
V. Application to Defendant Moses
During the second Spears hearing, plaintiff recited his version of events as it related to Sgt. Moses' involvement in the alleged assault by Jody Duplechain. Plaintiff testified that Sargent Moses escorted the prisoners during the transfer from the medical department to "Sleet Lockdown," and asserts that he left the view of the inmates while she unlocked a gate. While she was away, plaintiff alleges that Jody Duplechain hit the him on the head with something like a rock.
The plaintiff testified that he had reported to Sargent Moses on the way to the infirmary that, "I was having problems with [Duplechain] and that I wanted someone else to push me [in the wheelchair], and she just told me to shut up." The plaintiff also explained that he had told Sgt. Moses that "these problems have been persisting and I do not trust Jody Duplechain." The plaintiff said that Duplechain bad begun making threats when they first arrived at the infirmary, and that he believed Sgt. Moses heard these threats "because she was right there, but she was acting like she didn't hear anything. . . . That's what made it look suspicious." The plaintiff testified that Duplechain threatened that "if I ever got out of the wheelchair, he was going to put me back in it, that he was going to cripple me for life [and that] I better not write no more ARPs, no more complaints." The plaintiff said he responded to Duplechain and said "I'm not just going to let them do anything they want to me just because I'm crippled and in a cell." The plaintiff further stated that "it just got verbal and more verbal and Sgt. Moses heard everything," The plaintiff said the incident looked "even more suspicious" because Sgt. Moses "turned around and wrote up a disciplinary report on me. . . . Even though my head was bleeding, she said that I lied about everything." Her reaction was an indication to the plaintiff that she "knew more than she wanted to know, [and] she was just trying to protect herself because she didn't protect me and my head got split open."
ARP stands for Administrative Remedy Procedure.
Although plaintiffs Spears testimony provides much detail with respect to Sargent Moses, resolving the issue of qualified immunity will ordinarily require a Schultea reply, and a court's discretion not to order such a reply is very narrow when greater detail might assist.Schultea, 47 F.3d at 1434; Morin v. Caire 77 F.3d 116, 121 (5th Cir. 1996). Assuming the validity of his Spears statements as we must for summary judgment, more specific facts would be helpful relating to, among other things, (1) why Duplechain's threats were different from other ordinary verbal exchanges between prisoners such that Duplechain's threats posed a substantial risk of serious harm, (2) whether Sargent Moses knew that Duplechain's threats were more dangerous than other ordinary exchanges, and (3) whether she was unreasonable in failing to address the situation; for example, whether she violated prison procedures or customs in some way.
The Court recognizes that the plaintiff has previously provided his narrative of events in relation to Sargent Moses and that may have nothing more to add. In case there are any more facts plaintiff wishes to disclose, the plaintiff has the opportunity. Therefore, the plaintiff is ordered to file a Schultea reply detailing any additional facts indicating (1) that Jody Duplechain at the time of the alleged attack posed a substantial risk of unreasonable harm, (2) how Sgt. Moses was aware that Duplechain posed this high risk, and (3) how she failed to act reasonably to abate the risk.
IT IS ORDERED that the plaintiff file a Schultea reply with respect to Sargent Master Lebo, Sargent Seal, and Sargent Moses, for his failure to protect claims against them involving Jody Duplechain. These replies shall be filed by no later than November 15, 2001.
IT IS FURTHER ORDERED: that the defendants' motion for summary judgment be DENIED WITHOUT PREJUDICE, to be re-urged, if necessary, after the plaintiff has filed the schultea replies.