Opinion
Civil Action NO. 00-3759 SECTION "E"(4)
September 27, 2002
ORDER AND REASONS
This matter is before the Court after Oral Argument on the Motion for Summary Judgment (Rec. Doc. No. 62) filed by the defendants, Jefferson Parish Sheriff Harry Lee, Deputy Chief Gary Schwabe, Deputy Anthony Hingle, and Deputy Stephen Killet, upon the consent of the parties pursuant to Title 28 U.S.C. § 636(c). I. Factual Background
Rec. Doc. Nos. 11, 13.
A. The Original and Amended Complaints
The plaintiff, Marvin Maurice Wallace a/k/a Tyrone Davis ("Wallace"), is a prisoner incarcerated in the Louisiana State Penitentiary ("LSP") in Angola, Louisiana. Although he now has retained counsel, he filed this petition pro se and in forma pauperis on December 27, 2000, against Jefferson Parish Sheriff Harry Lee, Deputy Chief Gary Schwabe, Deputy Anthony Hingle, and Deputy Stephen Killet.
Rec. Doc. No. 1, p. 4.
Rec. Doc. No. 1.
In his Original Complaint, Wallace contends that, on January 30, 2000, he was temporarily transferred from Elayn Hunt Correctional Center ("Hunt") to the Jefferson Parish Correctional Center for a court appearance in the 24th Judicial District Court. He alleges that, during the night, Deputies Hingle and Killet entered his tier to conduct roll call. Wallace further alleges that the deputies questioned him about his name and then entered his cell. He contends that, at that time, he could smell alcohol on Deputy Hingle's breath.
Wallace further contends that Deputy Hingle told him that he and Deputy Killet had lost money betting on the Super Bowl. He contends that soon thereafter, the two deputies began to beat him. Wallace alleges that he did not fight back and eventually lost consciousness as a result of the severe beating. When he awakened, he was laying face down with his hands cuffed behind his back and was bleeding from a cut on his face. Wallace alleges that he also suffered a broken jaw which resulted in his jaw being wired for seven weeks. He also alleges that he suffered a laceration to his left temple and several cuts and bruises.
Wallace also alleges that Sheriff Lee and Chief Schwabe knew or should have known that these deputies were reporting to work intoxicated and beating inmates for no reason. He further contends that Sheriff Lee and Chief Schwabe are liable to him for failing to train and discipline the deputies and because they are the employers of the deputies.
In his Original Complaint, the plaintiff seeks a declaratory judgment, monetary damages and attorneys fees. Wallace subsequently filed an Amended Complaint on August 31, 2001, adding Deputy Kelly Carrigan as a defendant and alleging that Deputy Carrigan struck him on his chin with a billet club while he was waiting to be taken to the hospital for treatment of the injuries received from Deputies Hingle and Killet. He further alleges that the unprovoked attack was captured on video tape.
Rec. Doc. No. 28.
B. The Spears Hearing
On January 19, 2001, the undersigned held a hearing pursuant to Spears v. McCotter. During the hearing, Wallace testified that, on January 30, 2000, he was transferred from Pine Prairie Correctional Center to a holding cell at the Jefferson Parish Correctional Center because of a scheduled multiple bill hearing. Wallace alleges that, around 10:00 p.m., Deputies Hingle and Killet entered the holding cell area to conduct roll call. He alleges that the deputies were verbally abusive and complained of losing money on the Super Bowl and of being in the mood to beat someone.
766 F.2d 179 (5th Cir. 1985). The plaintiff was sworn in prior to the commencement of the hearing. The purpose of the Spears Hearing is to ascertain what it is the prisoner alleges to have occurred and the legal basis for the claims. Spears, 766 F.2d at 180. The information elicited at the hearing is in the nature of an amended complaint or a more definite statement under Fed.R.Civ.P. 12(e). Wilson v. Barientos, 926 F.2d 480, 481 (5th Cir. 1991). The cassette tape recording of the Spears Hearing is being placed in the custody of the Court Recording Unit along with a copy of this Order and Reasons.
Wallace testified that he could smell alcohol on the deputies' breath. When the deputies entered Wallace's holding cell, Hingle hit him in the face and Killet held his arms behind him. Wallace testified that Hingle continued to beat him about the head and body until Wallace passed out. As a result, according to Wallace, he suffered lacerations to both sides of his face and injured his jaw. He further testified that after he lost consciousness, he was taken to another holding cell.
Wallace testified that there was a one and one-half hour delay in providing him medical care but he was ultimately seen by a prison doctor. Thereafter, he was sent to the Louisiana Medical Center at New Orleans where he underwent X-rays and a CT scan. He was diagnosed with a fracture of the right mandible and received stitches on the right side of his face. Wallace also stated that his jaw was wired shut for seven weeks. He received follow-up care atHunt but he continues to suffer with his jaw.
Wallace testified further that after he returned to Hunt, he filed a complaint against the deputies with the Jefferson Parish Correctional Center but has received no response. He testified that he filed this suit challenging the excessive force used by the deputies but has no complaints about the medical care received. Wallace contends that he continues to suffer with nightmares and emotional distress as a result of the incident.
II. Procedural Background
After scheduling the matter for trial and not until the Final Pretrial Conference, the parties advised the Court that, after the incident, Wallace was charged in the 24th Judicial District Court of Jefferson Parish with Battery on a Correctional Officer requiring medical attention. He entered a plea of nolo contendere to the charge. Counsel for the defendant suggested that Wallace was precluded from bringing this claim pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). As a result, the Court ordered both sides to brief the application of Heck to the nolo contendere plea entered into by Wallace. Subsequently, four of the five defendants filed the instant Motion for Summary Judgment challenging Wallace's suit pursuant to the Heck's favorable termination rule.
In Heck, the United States Supreme Court has held that in order to recover damages for harm caused by actions of those whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination or called into question by a federal court's issuance of a writ of habeas corpus. Heck, 512 U.S. at 486-87.
Deputy Carrigan is not listed as a movant in the Motion. Rec. Doc. No. 62.
A. The Motion for Summary Judgment
The movants allege that Wallace's claims of excessive force are barred by the Heck favorable termination rule because he entered a nolo contendere plea which has not been reversed or expunged, and seeks relief implying the invalidity of the underlying conviction. The defendants also argue that, according to United States Fifth Circuit precedence, if Wallace's "battery" was to ward off an officer's use of excessive force, he would have had a valid defense to the criminal charge under Louisiana law. See Hudson v. Hughes, 98 F.3d 868 (5th Cir. 1996).
Alternatively, the defendants argue that Hingle and Killet are entitled to qualified immunity. Also, the defendants argue that Wallace has failed to state a claim against Sheriff Lee.
Conversely the plaintiff contends that Heck cannot legally bar his § 1983 claims because Article 410 of the Louisiana Code of Evidence prohibits the admission of evidence of a nolo contendere plea in a subsequent proceeding. He further argues that Heck does not bar his suit because resolution of the claims would not invalidate the conviction since the Constitution prohibits a deputy from using excessive force to punish a prisoner even where the prisoner has battered an officer.
Art. 410 provides in relevant part that ". . . evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: . . . (2) a plea of nolo contendere . . . ."
Wallace alternatively argues that, even if Heck applies, the defendants' Motion would not bar suit against Deputy Carrigan since the nolo contendere plea was made with respect to the incident involving Hingle and Killet. Wallace further contends that the severity of his injuries refutes the contention that the deputies acted reasonably and prevents summary judgment on the issue of qualified immunity.
Finally, Wallace contends that Sheriff Lee and Chief Schwabe ignored complaints that the deputies were reporting to work intoxicated and failed to take action. The plaintiff also requests that he be allowed additional time to conduct discovery regarding the liability of Lee and Schwabe pursuant to Fed.R.Civ.P. 56(t).
B. Supplemental Briefing
During oral arguments held on August 14, 2002, the Court ordered counsel to file supplemental briefs directed to the application of Heck in light of the fact that Wallace was charged with only one count of battery on Deputy Hingle. The Court further ordered the parties to brief the issue of whether Heck is applicable to nolo contendere pleas. The Court also informed counsel that there were numerous cases applying Heck to nolo contendere pleas.
The defendants have provided the Court with a copy of the Bill of Information which confirms the charge against Wallace. The copy has been separately filed into the record. Rec. Doc. No. 73.
In their supplemental brief, the defendants reiterate that the application of Heck is dependent upon the existence of a conviction, rather than the nature of the plea itself. As a result, they contend that Heck stands to bar Wallace's excessive force claims since his conviction still stands.
The plaintiff re-urges his original contention that the nolo contendere plea can not be used against the plaintiff in a subsequent civil proceeding. Alternatively, the plaintiff argues that, should the Court find that the Heck bar is applicable, it should only bar the claim against Deputy Hingle and not Killet or Carrigan.
III. Standard of Review
Rule 56(c) of the Federal Rules of Civil Procedure sets forth the standard for considering a motion for summary judgment:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of any material fact that the moving party is entitled to a judgment as a matter of law.
The Court must therefore determine whether a genuine issue of material fact exists.
In Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the United States Supreme Court indicated that the party seeking summary judgment must point out the absence of evidence showing a genuine issue of material fact. "Material facts are those 'that might affect the outcome of the suit under the governing law.'" Morrissey v. Boston Five Cents Savings Bank, 54 F.3d 27, 31 (1st Cir. 1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "A dispute as to a material fact is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Id.
Further, the party opposing summary judgment and who bears the burden of proof at trial must then "go beyond the pleadings and by [his] own affidavits, or by 'depositions, answers to interrogatories, and admission on file, 'designate' specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324. On motion for summary judgment, the Court must view all evidence and related inferences in the light most favorable to the non-moving party. See Springfield Terminal Ry. Co. V. Canadian Pac. Ltd., 133 F.3d 103, 106 (1st Cir. 1997). However, "conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's burden." Douglass v. United Services Automobile Assoc., 79 F.3d 1415, 1429 (5th Cir. 1996) (citing Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994)).
IV. Heck and the nolo Contendere Plea
Citing La. Code Evid. Art. 410, which tracks the exact language of Fed.R.Evid. 410, Wallace contends that the nolo contendere plea prevents the application of Heck. Article 410 provides that evidence of a plea of nolo contendere (or no contest) is inadmissable in a subsequent proceeding. However, the language and purpose of these evidentiary rules prohibits the use of evidence of the plea of nolo contendere but not the existence of the conviction pursuant to that plea. Olsen v. Correiro, 189 F.3d 52 (1st Cir. 1999) (addressing Fed.R.Evid. 410) (citing Myers v. Sec. of Health and Human Servs., 893 F.2d 840, 843 (6th Cir. 1990).
See Comment to La. Code Ev. Art. 410.
The nolo contendere plea is not an admission of guilt, and for that purpose, can not be used against the defendant in a subsequent proceeding. Consequently, reference to the conviction itself does not defeat the purpose of the evidentiary bar if the conviction is not being used as an admission of guilt. Id. Thus, in this case, the mere existence of Wallace's s conviction is not inadmissable under federal or Louisiana evidentiary rules, to the extent that state rules would even apply in this federal proceeding.
Furthermore, what is relevant under the plain language of Heck is whether the claim impacts on the validity of a conviction, regardless of how that conviction was obtained. Nuno v. County of San Bernardino, 58 F. Supp.2d 1127, 1136 (C.D. Cal. 1999) (what is relevant under Heck is the simple fact of existence of the conviction and not the nolo contendere plea itself). Therefore, in its Heck analysis, the Court is not prohibited from considering Wallace's conviction after a plea of nolo contendere in its Heck analysis. Cf. Alatraqchi v. City and County of San Francisco, 2001 WL 637429 at *2 (N.D. Cal. May 30, 2001) (Fed.R.Evid. 410 did not prevent application of Heck to § 1983 claims related to conviction after plea of no contest).
In fact, this Court and other federal courts have determined that it is appropriate to apply Heck to bar § 1983 claims where the successful prosecution would necessarily imply the invalidity of a conviction entered on the basis of a plea of nolo contendere. See Watson v. City of New Orleans, 2000 WL 354399 (E.D. La. Apr. 5, 2000) (applying Heck without specifically addressing the relevance of the nolo contendere plea); see also Nicholson v. City of Westlake, 20 Fed. Appx. 400, 2001WL 1178332 (6th Cir. Sept. 24, 2001); Small v. St. Tammany Parish Sheriff, 2002 WL 519804 at *2 (E.D.La. Apr. 2, 2002) (following Watson); Thompson v. City of Galveston, 979 F. Supp. 504 (S.D. Tex. 1997), aff'd, 158 F.3d 583 (5th Cir. 1998) (Table); Kennedy v. Sparacello, 1996 WL 648824 (E.D. La. Nov. 1, 1996); Moser v. Bascelli, 879 F. Supp. 489 (E.D. Pa. 1995).
Other courts have applied Heck without addressing the impact of the nolo contendere plea. Ellis v. City of Pittsburgh, 2001 WL 1256441 (C.D. Cal. Oct. 10, 2001); Brayboy v. Wayne County Circuit Court, 2001 WL 902714 (ED. Mich. June 4, 2001); Nobles v. Sonoma County, 1995 WL 225666 at *2 n. 2 (ND. Cal. Mar. 8, 1995); Kevakian v. Kennedy, 1995 WL 7938 (N.D. Cal. Jan. 6, 1995).
V. Heck and the Claims Against Deputy Hingle
In this case, Wallace was charged with battery on a police officer requiring medical attention in violation of La. Rev. Stat. Ann. § 14:34.2. In order to prove the crime, the State must establish that (1) a battery or non-consensual touching occurred; (2) the officer was acting in the performance of his duties at the time of the battery; (3) the officer qualifies as a "police officer' as defined in La. Rev. Stat. Ann. § 14:34.2(A)(2); and (4) the officer required medical attention for his injuries. State v. Ahlfeldt, 801 So.2d 663 (La.App. 3rd Cir. 2001). Wallace was convicted of this crime.
La. Rev. Stat. Ann. § 14:34.2 provides in pertinent part as follows:
A.(1) Battery of a police officer is a battery committed without the consent of the victim when the offender has reasonable grounds to believe the victim is a police officer acting in the performance of his duty.
(2) For purposes of this Section, "police officer" shall include commissioned police officers, sheriffs, deputy sheriffs, marshals, deputy marshals, correctional officers, constables, wildlife enforcement agents, state park wardens, and probation and parole officers.
(3) For purposes of this Section, "battery of a police officer" includes the use of force or violence upon the person of the police officer by throwing feces, urine, blood, saliva, or any form of human waste by an offender while the offender is incarcerated by a court of law and is being detained in any jail, prison, correctional facility, juvenile institution, temporary holding center, halfway house, or detention facility. .
B. (3) If the battery produces an injury that requires medical attention, the offender shall be fined not more than one thousand dollars or imprisoned with or without hard labor for not less than one year nor more than five years, or. . . .
The United States Fifth Circuit has held that a Louisiana defendant convicted of battery on a police officer is barred by Heck from seeking damages for the alleged use of excessive force by the officer. Hudson v. Hughes, 98 F.3d 868 (5th Cir. 1996). In doing so, the Court reasoned as follows:
In Louisiana, self-defense is a justification defense to the crime of battery of an officer. See LSA-R.S. 14:19; Louisiana v. Blancaneaux, 535 So.2d 1341 (La.App. 1988) (discussing justification defense to battery of officer conviction). To make out a justification defense, the criminal defendant charged with battery of an officer must show that his use of force against an officer was both reasonable and necessary to prevent a forcible offense against himself. Blancaneaux, 535 So.2d at 1342. Because self-defense is a justification defense to the crime of battery of an officer, Hudson's claim that Officers Defillo, Hingle, and Lanasa used excessive force while apprehending him, if proved, necessarily would imply the invalidity of his arrest and conviction for battery of an officer. This is true because the question whether the police applied reasonable force in arresting him depends in part on the degree of his resistance, which in turn will place in issue whether his resistance (the basis of his conviction for assaulting a police officer) was justified, which, if it were, necessarily undermines that conviction. We conclude therefore that to the extent that Hudson seeks to recover from the City of New Orleans and Officers Defillo, Hingle, and Lanasa for the defendants' alleged use of excessive force during his arrest, his section 1983 action may not proceed.Hudson, 98 F.3d at 873 (footnote in original); see also Sappington v. Bartee, 195 F.3d 234 (5th Cir. 1999); Watson v City of New Orleans, 2000 WL 354399 at *2 (E.D.La. Apr. 5, 2000).
"LSA-R.S. 14:19 provides:
The use of force or violence upon the person of another is justifiable, when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person's lawful possession; provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this article shall not apply where the force or violence results in a homicide."
The same is true in the instant case. Wallace could have elected to urge a defense to the charge to establish that the force used by Hingle was not reasonable in light of the circumstances, warranting his physical response. He did not raise such a defense and the doctrine of Heck bars him from doing so at this time under the guise of a civil rights suit. Therefore, the § 1983 claims against Deputy Hingle are barred by Heck as a matter of law and must be dismissed.
The fact that Wallace may have completed the one year sentence imposed as to the battery on Hingle does not affect the applicability of Heck. In Spencer v. Kemna, 523 U.S. 1 (1998), the Court held that an inmate no longer in custody could not pursue a habeas corpus challenge to the underlying conviction or sentence. In dicta in the concurring and dissenting opinions, the justices opined that, as a result of the majority's holding, the favorable termination requirement addressed in Heck would not bar a § 1983 complaint when the prisoner was no longer in custody for the challenged conviction. However, the Fifth Circuit has refused to announce that the Supreme Court has overruled the Heck decision through dicta from the concurring and dissenting opinion. Randell v. Johnson, 227 F.3d 300, 301 (5th Cir. 2000), cert. denied, 532 U.S. 971 (2001). The Randell court followed instead the long standing mandate that the lower federal courts follow only directly applicable precedence even if it appears to have been weakened by pronouncements in subsequent opinions. Randell, 227 F.3d at 301 (citing Agostini v. Felton, 521 U.S. 203 (1997)).
VI. Heck and the Claims Against Deputy Killet
The next question before the Court is whether the Heck doctrine would bar the collateral claims of excessive force against Deputy Killet, who is accused of holding Wallace's arms back during the confrontation with Hingle.
When a convicted inmate brings an excessive force claim, the appropriate inquiry is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 6 (1992); Flowers v. Phelps, 956 F.2d 488, 491 (5th Cir. 1992). To resolve Wallace's claims against Deputy Killet, the Court will have to determine whether Killet acted reasonably in restraining Wallace in light of the circumstances.
Wallace was not, however, charged with battery on Killet. The assessment of this claim, therefore, would not directly, or necessarily, imply the invalidity of a conviction of Wallace so as to be barred by Heck. See Spencer v. Kemna, 523 U.S. 1, 17 (1998). For this reason, Heck will not bar Wallace's claims against Killet. Because factual issues exist as to whether Killet used excessive force in violation of a clearly established law, his request for qualified immunity should also be denied at this time. See Anderson v. Creighton, 483 U.S. 635 (1987).
In addition, although he was not a movant, Heck does not apply to the claims against Deputy Carrigan. Wallace was not charged with or convicted of a crime relating to that incident. A finding that Carrigan used excessive force against Wallace would not invalidate the conviction related to Deputy Hingle. Accordingly, Wallace's claims against Deputy Carrigan should proceed.
VII. Liability of Sheriff Lee
The plaintiff alleges that Harry Lee is liable in his capacity as Sheriff of Jefferson Parish because he knew that Deputies Hingle and Killet were reporting to work intoxicated but failed to stop them from doing so, thus, acquiescing to the custom or unofficial policy. Defendants contend that Wallace has failed to state a claim against Sheriff Lee under Monell v. Department of Social Services, 436 U.S. 658, 694 (1978) since he has failed to establish a constitutional violation resulting from any particular policy, practice or custom.
As a representative of Jefferson Parish, Sheriff Lee may be liable under § 1983 only if his actions were in the execution of an unconstitutional Parish policy or custom which inflicted injury or damage upon Wallace. Monell, 436 U.S. at 694 (1978). Official policy is ordinarily contained in duly promulgated policy statements, ordinances or regulations. A policy may also be evidenced by custom that is a persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Id. Actions of officers or employees of a municipality do not render the municipality liable under § 1983 unless they execute official policy as above defined. Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.), on reh'g, 739 F.2d 993 (5th Cir. 1984); see also Bd. of County Com'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 403 (1997).
While an unconstitutional official policy renders a municipality culpable under § 1983, even a facially innocuous policy will support liability if it was promulgated with deliberate indifference to the "known or obvious consequences" that constitutional violations would result. Bryan County, 520 U.S. at 407. The plaintiff must allege not merely that such an unconstitutional policy or custom exists, but that it was the proximate cause of his injury or damage. See Collins v. City of Harker Heights, 503 U.S. 115, 122-24 (1992); Berry v. McLemore, 670 F.2d 30, 33-34 (5th Cir. 1982), overruled on other grounds, Int'l Woodworkers of Am. v. Champion Int'l Corp., 790 F.2d 1174 (5th Cir. 1986).
In that regard, the defendants argue that Wallace can not establish an injury since he is barred from developing the allegations that Hingle and Killet were intoxicated when the altercation, i.e. excessive force, took place. Alternatively, the defendants argue that there is nothing before the Court which would support Wallace's conclusion that Sheriff Lee knew of the behavior or that the deputies were not trained regarding the use of alcohol on duty. Wallace seeks time to conduct additional discovery to develop this claim pursuant to Fed.R.Civ.P. 56(f).
First, the Court finds that Wallace is barred from pursuing claims related to Hingle's alleged intoxication. To evaluate the injury allegedly caused by the custom or policy, or lack of training regarding intoxication, Wallace would have to establish that a constitutional injury took place. In this case, that would include the use of excessive force by Deputy Hingle. The Court would then be called upon to determine whether the custom of allowing intoxicated deputies to report to work resulted in the use of unnecessary and excessive force against Wallace by Deputy Hingle. Such a finding, with respect to Hingle, would necessarily call into question the validity of Wallace's battery on a police officer conviction, which is prohibited as to Hingle until such time as the Heck conditions are met.
The plaintiff has not alleged individual liability on the part of Sheriff Lee. However, even if he had, the Court would have to reach the same conclusion since Wallace has not established that (1) Sheriff Lee failed to train or supervise the subordinate officers involved; (2) there is a causal connection between the alleged failure to supervise or train and the alleged violation of the plaintiff's constitutional rights; and (3) the failure to train or supervise constituted deliberate indifference to his constitutional rights. Thompson v Upshur County, 245 F.3d 447, 459 (5th Cir. 1991) (citations omitted). Furthermore, for the reasons addressed in light ofMonell, Wallace has not presented summary judgment evidence that Sheriff Lee "implemented a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation." Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992); Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987).
However, the same is not true with respect to Killet since Heck does not bar the claims against him. In that regard, the plaintiff has requested additional time to conduct discovery related to the policies and customs at the prison regarding intoxication on duty.
Fed.R.Civ.P. 56(f) authorizes the Court, in its discretion, to deny summary judgment and allow a continuance to permit further discovery to develop factual support in support of the opposition. Relief under Rule 56(f) are favored and should be liberally granted. Beattie v. Madison County School District, 254 F.3d 595, 606 (5th Cir. 2001) (citing Stearns v. Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 535 (5th Cir. 1999)). Nevertheless, to be entitled to relief under Rule 56(f), Wallace must show (1) that he needs additional discovery, (2) how that discovery will create a genuine issue of material fact, and (3) that he has been dingent in pursuing discovery up to this time. Stearns, 170 F.3d at 535; see also Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 28 F.3d 1388, 1396 (5th Cir. 1994).
In the instant matter, Wallace filed this case and proceeded for almost two years without assistance of counsel. During that time, the parties conducted limited discovery, mostly initiated by the pro se plaintiff. No dispositive motions were filed by the defendants until February 21, 2002, when the Court ordered briefing on the Heck issue which was raised for the first time at the Final Pretrial Conference. Shortly thereafter, on March 7, 2002, counsel enrolled on Wallace's behalf and has brought the case to this juncture.
See Rec. Doc. Nos. 18, 19, 20, 24, 25, 36, 42, 55.
Wallace argues in his opposition to the Motion for Summary Judgment that counsel should now be allowed a brief opportunity to clarify his claims and develop the record against Sheriff Lee and Chief Schwabe with respect to his claims that they ignored complaints that deputies were reporting to work intoxicated, that they failed to train the deputies to properly handle prisoners and that they failed to develop a substance abuse screening at the prison. The Court can see no prejudice to the defendants in allowing a brief continuance of the discovery period as to the issues that were left undeveloped despite the diligent pro se efforts of the plaintiff.
Rec Doc. No. 66, p. 6.
Accordingly, for all of the foregoing reasons,
IT IS ORDERED that the defendants' Motion for Summary Judgment (Rec. Doc. No. 62) is GRANTED in part dismissing with prejudice the claims against Deputy Anthony Hingle until the Heck conditions are met.
IT IS FURTHER ORDERED that the Motion for Summary Judgment (Rec. Doc. No. 62) is DENIED in part as to the claims against Deputy Stephen Killet because the claims against him are not barred by Heck and genuine issues of fact exist which prevent resolution of the qualified immunity defense.
IT IS FURTHER ORDERED that the Motion for Summary Judgment (Rec. Doc. No. 62) is DENIED in part as to the claims against Sheriff Harry Lee because the claims against him are not barred by Heck as they relate to Deputy Killet and genuine issues of fact exist which prevent resolution of the claims against him.
Having disposed in full of the pending Motion, IT IS FURTHER ORDERED that the plaintiff is allowed 60 days from issuance of this order to conduct discovery related to the surviving claims against Sheriff Lee and Chief Gary Schwabe with respect to the plaintiffs claims that they ignored complaints that deputies were reporting to work intoxicated, that they failed to train the deputies to properly handle prisoners and that they failed to develop a substance abuse screening at the prison, at which time the defendants may file another Motion for Summary Judgment addressing these issues.
Furthermore, the claims against Deputy Kelly Carrigan are not barred by Heck and the claims against Chief Gary Schwabe were not the subject of this Motion. Therefore, the claims against Carrigan and Schwabe shall also proceed forward.