Opinion
2:04-CV-0121.
August 26, 2005
REPORT AND RECOMMENDATION TO GRANT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
On this day came for consideration defendant's February 18, 2005 Motion for Summary Judgment. Plaintiff has filed no response; however, on June 29, 2005, the Court conducted a hearing to consider, in relevant part, defendant's motion for summary judgment and received testimony and argument from both parties which have been considered. Plaintiff was given twenty days from the date of the hearing in which to file any response to defendant's motion for summary judgment or the evidence received at the hearing and has utterly failed to do so. Defendant VICK is the sole remaining defendant in this cause. All the other defendants were dismissed by Order of Partial Dismissal entered December 1, 2004.
STATEMENT OF THE CASE
Plaintiff, proceeding pro se, filed the instant cause while a prisoner confined in the Texas Department of Criminal Justice, Correctional Institutions Division, pursuant to Title 42, United States Code, section 1983, complaining against various security staff at the Clements Unit of the Texas Department of Criminal Justice.
On December 1, 2004, all of plaintiff's claims against defendants DUFFY, BORDON, and SMITH were dismissed. Plaintiff's claims against defendant VICK survived initial screening and an Order to answer issued.
Plaintiff's claim against defendant VICK is that defendant VICK passed plaintiff's cell while plaintiff was being beaten by his cellmate and ignored plaintiff's cries for help. Plaintiff requests $500.00 in compensatory damages, costs, and that TDCJ be ordered to implement a "better protection plan." Plaintiff says he endured broken ribs and lost two teeth as a result of the attack. He also states his face was swollen and he now has sinus problems.
UNDISPUTED FACTS
Plaintiff, appearing pro se, filed this suit while a prisoner in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) and was incarcerated at the Clements Unit during the time relevant to this cause. At all times relevant to plaintiff's complaint, defendant VICK acted under color of state law and was a correctional officer at the Clements Unit. On May 31, 2003, plaintiff was assaulted by his cellmate. Defendant VICK had no prior knowledge that an assault was going to take place.
THE STANDARD OF SUMMARY JUDGMENT REVIEW
Summary judgment may be granted where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56©. Consequently, after adequate time for discovery and upon motion, summary judgment should be entered 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 bears the burden of proof. Celotex v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
Because the consequences of summary judgment are so severe, the court must be careful to avoid premature termination of legitimate lawsuits merely because of unskilled presentations. Murrell v. Bennett, 615 F.2d 306 (5th Cir. 1980). In determining a movant's request for summary judgment, all reasonable inferences must be made in favor of the party opposing the motion. Phillip's Oil Co. v. OKC Corp., 812 F.2d 265, 272 (5th Cir.), cert. denied, 484 U.S. 851, 108 S.Ct. 152, 98 L.Ed.2d 107 (1987). Only disputes of facts that could affect the outcome of the suit at trial will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
A complete failure of proof concerning an essential element of the nonmoving party's case is fatal and entitles the moving party to judgment as a matter of law. Celotex v. Catrett, 477 U.S. at 322-23, 106 S.Ct. at 2552. The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Upon such a showing, the burden of production shifts to the nonmovant to delineate specific facts which demonstrate the presence of a genuine issue of material fact. Id.; Judwin Properties, Inc. v. U.S. Fire Ins. Co., 973 F.2d 432, 435 (5th Cir. 1992). A motion for judgment as a matter of law is properly granted when the facts and inferences point so strongly in favor of the movant that a rational jury could not arrive at a contrary verdict. If there is substantial evidence, that is, evidence of such quality and weight that reasonable and fair-minded jurors might reach a different conclusion, then the motion for judgment as a matter of law should be denied. Waymire v. Harris County, Texas, 86 F.3d 424, 427 (5th Cir. 1996).
THE STANDARD OF SUMMARY JUDGMENT REVIEW UPON A PLEA OF QUALIFIED IMMUNITY
Considering claims of qualified immunity, the Court employs a two-step analysis. Since qualified immunity depends on whether the defendant violated a clearly established constitutional right, a preliminary inquiry must be made whether, considering the facts alleged in the light most favorable to the plaintiff, the plaintiff has asserted a violation of any constitutional right at all. Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). Analysis at this stage is performed under the "currently applicable constitutional standards." Rankin v. Klevenhagen, 5 F.3d 103, 106 (5th Cir. 1993). If the plaintiff's allegations fail to establish the violation of a constitutional right, the defendant is entitled to qualified immunity. Saucier v. Katz, 533 U.S. 193, 201, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001).
If the initial inquiry is satisfied, the second prong of the qualified immunity test must be considered: whether the constitutional right alleged to have been violated was clearly established at the time of the incident; and, if so, whether the conduct of the defendant was objectively unreasonable in light of contemporaneous clearly-established law. Hare v. City of Corinth, 135 F.3d 320, 328 (1998). Although analysis under the first prong requires the court to consider currently applicable constitutional standards, analysis under the second prong requires a court to measure the objective reasonableness of an official's conduct with reference to the law as it existed at the time of the conduct in question. Id. (citing Rankin v. Klevenhagen, 5 F.3d 103, 108 (5th Cir. 1993). If an officer makes a reasonable mistake as to what the law requires, the officer is entitled to immunity. Price v. Roark, 256 F.3d 364 (5th Cir. 2001).
Although it may be "difficult to imagine factual circumstances in which a trier of fact could find deliberate indifference as defined by Farmer and nevertheless conclude that a reasonable person in defendant's position was not chargeable with knowledge that his or her actions violated the plaintiff's clearly established constitutional rights," in analyzing a claim of qualified immunity, the test is objective reasonableness, not subjective deliberate indifference. Hare v. City of Corinth, 135 F.3d 320, 328 (1998) (quoting Briecke v. Coughlin, No. 92-CV-1211, 1994 WL 705328 at 6 (N.D.N.Y.Dec. 16, 1994). Consequently, at the qualified immunity stage, the deliberate indifference standard only allows an examination of whether, under the standard not to be deliberately indifferent, the acts or omissions of the defendant were objectively unreasonable as a matter of law. Hare v. City of Corinth, 135 F.3d 320, 328 (1998).
Deliberate indifference is defined as a failure to act where prison officials have knowledge of a substantial risk of serious harm to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1981, 128 L.Ed.2d 811 (1994).
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Defendant asserts Eleventh Amendment immunity as to the plaintiff's claims against him in his official capacity and states he does not have the authority to implement changes in prison procedures for inmate protection. Defendant also claims he is entitled to qualified immunity and that the evidence of record fails to show he was deliberately indifferent to plaintiff's safety. Defendant also argues that, even if he had heard plaintiff's cries for help, his response was reasonable and entitles him to qualified immunity.
Plaintiff has made no response; however, the Court conducted a hearing on June 29, 2005 to consider, in relevant part, defendant's motion for summary judgment, receiving testimony and argument from both sides which it will also consider. As stated above, plaintiff was given twenty days from the date of the hearing to file his response to defendant's motion for summary judgment and has filed nothing.
ANALYSIS OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Official Capacity Claims — Eleventh Amendment Immunity
The Eleventh Amendment has been interpreted by the Supreme Court to bar suits by individuals against non-consenting states. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). In addition, the principle of state-sovereign immunity generally precludes actions against state officers in their official capacities, see Edelman v. Jordan, 415 U.S. 651, 663-69, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), subject to an established exception: the Ex parte Young doctrine. Because defendant VICK does not possess the authority to implement changes in prison policies and procedures, he cannot be enjoined to do so, and the Ex parte Young exception cannot be applied to plaintiff's claims against him. Okpalobi v. Foster, 244 F.3d 405, 427 (5th Cir. 2001).
The remaining relief requested by plaintiff is monetary and does not bring plaintiff's claims under the Ex parte Young exception. Consequently, plaintiff's claims against defendant VICK in his official capacity are barred by the Eleventh Amendment and, thus, lack an arguable basis in law and are frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). Individual Capacity Claims — Qualified Immunity
Plaintiff claims defendant VICK both saw and heard him and must have had knowledge of plaintiff's call for help. Defendant VICK counters with his affidavit that he did not hear plaintiff nor did he know plaintiff was asking for help in the course of an attack. Defendant also argues that, even if he did see plaintiff and hear his cries for help, he acted reasonably because TDCJ policy prohibits him from entering a cell during an inmate fight. These alternate arguments are addressed below.
Defendant's Argument that He Acted Reasonably in Not Acting
At the June 2005 hearing, defendant presented the testimony of Joe Nunn, Assistant Warden at the Clements Unit, as an expert in correctional management at the Clements Unit. The witness testified he had been employed in the Texas Department of Criminal Justice for sixteen years, had been Assistant Warden at the Clements Unit for the last twenty-three months and previously had been Assistant Warden at the Jordan Unit. Warden Nunn testified that, if two inmates were fighting in a cell, it was not appropriate for the officer to enter the cell or roll the door because the fight could be staged in order to take the officer hostage, or the inmate and his attacker might leave the cell, escalating the fight when the parties got out of the cell into a common area. Warden Nunn stated an officer who observes an inmate on inmate attack should call for additional staff, to include a supervisor, a video camera, and chemical agents, etc. Plaintiff stated it was the practice of guards to ignore the cries of inmates who are being beaten and argued defendant VICK could have called for other officers to stop the beating.
The Eighth Amendment affords prisoners protection against injury at the hands of other inmates. Johnson v. Lucas, 786 F.2d 1254, 1259 (5th Cir. 1986). Given Warden Nunn's testimony, received at the June 2005 hearing, defendant has established that the proper procedure for a guard with knowledge of an inmate on inmate attack would be to refrain from entering a cell during the assault and, instead, to call for additional personnel. Consequently, defendant's argument that, even if defendant VICK had seen plaintiff being assaulted, his actions were reasonable, is without merit since VICK did not summon help, but, instead, took no action whatever and did not call for assistance. While it would have been reasonable for defendant VICK to refrain from immediately entering the cell, defendant has presented no evidence that the complete failure to take any action at all, if he knew of the assault, would be considered by prison officials, operating under the same circumstances, to be reasonable. Consequently, defendant VICK is not entitled to qualified immunity if he did see the assault in progress, but failed to take action other than merely continuing to walk down the run without calling for additional personnel to address the situation.
Alternate Qualified Immunity Argument — Defendant VICK's Affidavit
Defendant VICK has presented summary judgment evidence that he neither saw plaintiff being beaten nor did he hear plaintiff's cry for help. Plaintiff has not submitted any pleading in rebuttal to VICK's affidavit, but plaintiff did offer his testimony at the hearing.
Plaintiff testified the door to the cell was metal with a long, narrow plexiglass window. He stated the attack against him was ongoing and lasted a total of forty-five to fifty minutes. Plaintiff said it had been in progress for at least twenty minutes before defendant VICK walked by.
Plaintiff stated he banged on the cell and called, "Officer, Officer" when he saw defendant VICK. Plaintiff testified he was being kicked and his head was at the bottom of the narrow window when he saw VICK and that VICK saw him. Plaintiff did not state VICK could see his attacker or could see what was happening. Plaintiff stated the beating continued for another fifteen to twenty minutes. Plaintiff further testified he saw defendant VICK go by his cell twice while he was being beaten. He said that when he asked VICK the next day why he didn't help him, defendant VICK replied that he didn't hear plaintiff. Plaintiff testified another officer discovered his condition when he came to deliver mail and that the officer went on, returning with additional staff to remove both inmates from the cell and take plaintiff to the infirmary.
Later in the hearing, plaintiff testified defendant VICK went by his cell four times.
Plaintiff testified he could not say what injuries he sustained before he saw defendant VICK and which injuries he sustained after he saw VICK or what injuries he would have been spared had VICK called for additional personnel.
Plaintiff has offered no evidence but his own speculation that defendant VICK understood plaintiff was being beaten and was calling for help. At the June 2005 hearing, plaintiff argued that VICK saw him but he also stated, "I don't have proof of that."
Defendant VICK in his Affidavit, Exhibit C to his motion for summary judgment, avers as follows:
At no time did I hear Offender Beabout or any other offender scream at me in distress. If I had heard such screams I would have responded. Prisons are noisy places, there are approximately 130 inmates living in the High Security Area of the Clements Unit, where Beabout was housed during the incident in question. Many of these inmates will talk or shout to each other and at guards through their cell doors. It is often hard to make out any specific conversation or locate the source of any disturbance. However, if I had heard any particular inmate call out in distress I would have responded to his cries as quickly as possible.
At no time did I hear the Offender cry for help or ignore his cries of distress.
The Court must accept plaintiff's testimony that defendant VICK "looked right at him" when he called out. The question remaining is whether plaintiff's evidence that VICK "looked right at plaintiff" establishes that VICK actually saw plaintiff and understood he was being assaulted. There is no evidence VICK inferred from anything he saw or from anything he heard from plaintiff or any of the noise from the other inmates at that time that any inmate was being beaten and needed protection. Liability for an Eighth Amendment deprivation requires the same delinquency in denial of protection against harm from other inmates as it does for denial of medical care. Johnson v. Lucas, 786 F.2d 1254, 1259 (5th Cir. 1986). There must be an allegation of facts which will support deliberate indifference on the part of prison officials. Wilson v. Seiter, 504 U.S. 962, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). "[A]n official's failure to alleviate a significant risk that he should have perceived but did not, while no cause of commendation, cannot under our cases be condemned as infliction of punishment." Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1979, 128 L.Ed.2d 811, 823 (1994).
Given the summary judgment evidence of record, it is clear that plaintiff has not adduced evidence which would convince a reasonable jury that defendant VICK perceived plaintiff to be in danger and ignored such. Plaintiff has not shown deliberate indifference by defendant VICK and has not defeated defendant VICK's entitlement to qualified immunity.
Argument on the Merits — Injury
Lastly, defendant argues, plaintiff has not shown he would have been spared any injuries even if defendant had taken some sort of action because plaintiff has failed to show he suffered any injuries at a point in time after defendant VICK would have been able to secure assistance in order to respond.
The only evidence offered by plaintiff which could bear on this issue is his inconsistent testimony concerning the length of the attack. At one point he testified the assault continued for fifteen or twenty minutes after VICK's appearance, but at another point plaintiff testified he did not know how long the assault lasted after he saw VICK cellside. At the hearing, plaintiff stated he could not say what injury or injuries he sustained after seeing VICK but that he was being kicked at that time.
To determine whether plaintiff's case can survive summary judgment with no more evidence on the issue of injury would require a determination that defendant VICK saw or recognized plaintiff's need for assistance and merely ignored it, and that the assault or injuries from it would have ceased prior to or upon the arrival of additional personnel. Any doubt on this issue must be resolved in plaintiff's favor. Therefore, while plaintiff's testimony that he was continually assaulted for 20 minutes before he saw defendant VICK and for approximately 15 minutes after he saw defendant VICK, is, at the outer limit of credible testimony, the Court cannot say such testimony is so incredible that it cannot be believed, and a rationale jury, were they to find that defendant VICK did hear plaintiff's cries for help and simply ignored him could further find that injuries to plaintiff occurred as a result. Therefore, summary judgment should not be granted against plaintiff on this ground.
CONCLUSION
It is undisputed that plaintiff was assaulted, and it is undisputed that defendant VICK took no action. The sole issue is whether VICK had knowledge of the assault. Plaintiff attempts to establish this fact by testifying defendant VICK looked directly at him. Defendant VICK, by his affidavit, states he neither saw the assault nor heard plaintiff's cry for help. If plaintiff's statement creates a factual issue, then summary judgment should be denied. While plaintiff's testimony that defendant VICK looked at him comes close, it does not overcome defendant's direct evidence that he did not see the assault nor hear plaintiff's request for assistance. This is particularly so in light of defendant's further summary judgment evidence regarding the high noise level within the High Security section of the prison and the shouting by inmates.
Drawing all reasonable inferences in favor of the nonmoving party, there is no material issue of disputed fact which precludes entry of summary judgment in the instant cause; and defendant VICK is entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56©.
It is the opinion of the Magistrate Judge and RECOMMENDATION to the United States District Judge that defendant's motion for summary judgment be GRANTED and plaintiff RAYMOND DARRELL BEABOUT's claims against defendant VICK should be DISMISSED with prejudice.
IT IS SO RECOMMENDED.