Summary
finding that a declaration that included the phrase "to the best of my knowledge" was inadmissible because "[t]he thrust of the statutory provision for unsworn declarations is to require the declarant to examine his own representations and state clearly and unequivocally that he has personal knowledge of their truth and accuracy and that they are both true and accurate," and that the "[p]laintiff's attempt to preserve room for uncertainty concerning the veracity of his statements defeats his unsworn declarations . . ."
Summary of this case from Tremont LLC v. Halliburton Energy Servs., Inc.Opinion
No. 2:01-CV-0411.
July 1, 2004
REPORT AND RECOMMENDATION TO GRANT, IN PART, AND DENY, IN PART, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
On this day came for consideration defendants' Motion for Summary Judgment with supporting Brief and Appendix filed March 3, 2004, as supplemented by defendants' submission of signed affidavits on March 31, 2004 and May 18, 2004, to cure the earlier submission of unsigned but otherwise identical affidavits. Plaintiff filed his response on April 12, 2004.
Plaintiff's claims against defendants SOTO and BARNHILL were dismissed by Order issued May 9, 2003, and his requests for monetary relief against the defendants in their official capacities were dismissed by Order issued March 4, 2004.
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. Similarly, at all times relevant to this cause, defendants PRICE, PATTISON, and PEACOCK were employed by TDCJ-CID, as Warden, Sergeant, and Correctional Officer, respectively. At all times relevant to this lawsuit, the defendants acted under color of state law.
PLAINTIFF'S CLAIM
Plaintiff alleges that, on January 22, 2001, he informed defendants PATTISON and PEACOCK that his cellmate had threatened him but they refused to take any action to protect him. Consequently, plaintiff states, he was attacked by his cellmate the next day and suffered injury to his head and left eye.
Plaintiff alleges defendant PRICE was grossly negligent in failing to ensure proper classification of inmates within their age groups and allowing young aggressive inmates to be celled with geriatric inmates, endangering their safety. Plaintiff further alleges there is a practice, custom, or policy of ignoring complaints made by elderly inmates and, when grievances are filed, no steps are taken to alleviate the matter.
Plaintiff requests unspecified declaratory and injunctive relief, punitive and compensatory damages totaling $100,000.00, and costs.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants present evidence and argue that, as to plaintiff's claims against defendant PRICE, plaintiff has not exhausted administrative remedies before filing suit. Further, concerning his claim of a failure to train, defendants contend plaintiff has presented only conclusory allegations. They maintain plaintiff has failed to state any specific factual allegation indicating PRICE had actual knowledge of the alleged threats by plaintiff's cellmate. Defendants also argue plaintiff has failed to plead defendant PRICE has implemented an unconstitutional policy that causally resulted in plaintiff's injury.
As to defendants PATTISON and PEACOCK, defendants point to evidence in the record showing plaintiff did not inform either or both defendants of the threats of bodily harm by his cellmate and that defendant PEACOCK had no knowledge of any attack on plaintiff by his cellmate. Defendants maintain plaintiff has failed to show they acted with deliberate indifference to his safety. Defendants also point to evidence in plaintiff's medical records and question the extent of his injury, but do not argue he has failed to show an injury.
Lastly, defendants argue plaintiff has failed to present evidence sufficient to overcome their entitlement to a defense of qualified immunity.
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(c). 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
Since qualified immunity depends on whether the defendant violated a clearly established constitutional right, a preliminary inquiry must be made whether 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 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).
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).
ANALYSIS OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Title 42, United States Code, 1997e(a), as amended by Section 803 of the Prison Litigation Reform Act of 1995, provides that "[n]o action shall be brought with respect to prison conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."
By his response, plaintiff has utterly failed to address defendants' contention that he did not exhaust administrative remedies before filing suit on his claims against defendant PRICE. Further, review of plaintiff's pleadings fails to show any indication that plaintiff has exhausted administrative remedies concerning his claim that a policy exists where geriatric inmates are housed with younger, more aggressive inmates in violation of inmate classification requirements. "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002).
It appears plaintiff has failed to exhaust administrative remedies concerning any claim against defendant PRICE and concerning his claim of improperly housing geriatric and young inmates together. By choosing to file and pursue suit before meeting the section 1997e exhaustion of administrative remedies requirement, plaintiff has sought relief to which he was not entitled. Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998). Consequently, these claims 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).
Concerning plaintiff's deliberate indifference claims against defendants PATTISON and PEACOCK, defendants' argument for judgment on qualified immunity and on the merits is premised on the contents of sworn Affidavits from PATTISON and PEACOCK, which were submitted with the motion for summary judgment. By his Affidavit, defendant PEACOCK avers that, on January 28, 2001, plaintiff did not tell him he was being threatened and that he did not know plaintiff was assaulted. Further, defendant PEACOCK stated he did not have the authority to move an offender. By his Affidavit, defendant PATTISON averred that, on January 28, 2001, plaintiff reported he was having problems with his cellmate, but did not tell him he was being threatened by his cellmate or that he feared for his personal safety. He also stated he did not have the authority to move an offender, but would have taken proper steps if plaintiff has reported his cellmate had threatened him.
By his response, plaintiff contends he informed both defendants of "threats of Bodily harm made to Him by His cell partner. . . ." Plaintiff has submitted an unsworn declaration with his response. The declaration contains a paragraph attesting to the truthfulness of his statements pursuant to Title 28, United States Code, section 1746. Plaintiff has also included a similar paragraph at the end of his responsive pleading. Review of these attempts to comply with the provisions of Title 28, United States Code, section 1746 reveals they are both fatally flawed by plaintiff's inclusion of the phrase "to the best of my knowledge." The thrust of the statutory provision for unsworn declarations is to require the declarant to examine his own representations and state clearly and unequivocally that he has personal knowledge of their truth and accuracy and that they are both true and accurate. Plaintiff's attempt to preserve room for uncertainty concerning the veracity of his statements defeats his unsworn declarations and renders them inadmissible for purposes of summary judgment. Nevertheless, plaintiff's original complaint was properly verified and contains his statement that he informed both PATTISON and PEACOCK of the "threats of bodily harm made to [him] by [his] cell partner. . . ."
Thus, the contents of plaintiff's statements to defendants PATTISON and PEACOCK is an issue of material fact dependant upon a credibility determination; and cannot be made by the Court on summary judgment. Further, defendants have not advanced any authority to support the proposition that a defendant is shielded from liability if an inmate informs him of a threat and he responds that the inmate must file the proper report and/or seek relief through other channels.
In fact, by affidavit, PATTISON states if plaintiff had informed him of his cellmate's threats he would have "taken the proper steps according to TDCJ-ID procedure to help ensure his safety" but did not have the power to transfer plaintiff.
CONCLUSION
For the reasons set forth above, it is clear that, drawing all reasonable inferences in favor of the nonmoving party, there is no material issue of disputed fact which precludes entry of summary judgment for defendant PRICE; and defendant PRICE is entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56(c). As to plaintiff's claims against defendant PATTISON and PEACOCK, drawing all reasonable inferences in favor of the nonmoving party, the Magistrate Judge finds both the issue of these defendants' qualified immunity and plaintiff's claims on the merits depend on an issue of material fact which precludes entry of summary judgment.It is the opinion of the Magistrate Judge and RECOMMENDATION to the United States District Judge that defendants' motion for summary judgment be GRANTED, IN PART, AND DENIED, IN PART, and that plaintiff DOUGLAS BROWN's claims against defendant PRICE be dismissed with prejudice as frivolous and with prejudice for purposes of proceeding in an in forma pauperis proceeding pursuant to Title 28, United States Code, section 1915(b). Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998); 42 U.S.C. § 1997e(a).
The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to each attorney of record utilizing the inmate correspondence reply card or certified mail, return receipt requested, as appropriate. Any party may object to the proposed findings and to the Report and Recommendation within fourteen (14) days from the date of this Order. Rule 72, Federal Rules of Civil Procedure, and Rule 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern District of Texas. Any such objections shall be in writing and shall specifically identify the portions of the findings, recommendation, or report to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the Clerk of the Court and serve a copy of such objections on the Magistrate Judge and on all other parties. The failure to timely file written objections to the proposed factual findings, legal conclusions, and the recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected — to proposed factual findings and legal conclusions accepted by the District Court. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO RECOMMENDED.