Opinion
2:01-CV-0048
November 21, 2002
REPORT AND RECOMMENDATION TO GRANT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
On this day came for consideration defendants' Motion for Summary Judgment with supporting Brief filed June 26, 2002, in the above-referenced and numbered cause. Plaintiff filed his response on July 18, 2002.
UNDISPUTED FACTS
Plaintiff, appearing pro se, filed this suit while a prisoner in the custody of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID), and was incarcerated at the Clements Unit during the time relevant to this cause. Similarly, at all times relevant to this cause, defendants SHIPP, POHLMEIER, RICH, MOORE, and MURPHY were employed by TDCJ-ID, sitting on the Clements Unit classification committee with the authority to grant requests for protective custody. At all times relevant to this lawsuit, the defendants acted under color of state law.
PLAINTIFF'S CLAIM
Plaintiff alleges that, on November 6, 2000, defendants SHIPP and POHLMEIER denied his request for protective custody and, on April 23, 2001, defendants RICH, MOORE, and MURPHY also denied his request for protective custody. Plaintiff claims the defendants have failed to protect him from gang members who have threatened him with violence, extorted money, and required him to perform sexual acts. Plaintiff claims the failure to protect was the result of racial discrimination by the defendants.
By his Amended Complaint, plaintiff requests a declaratory judgment, injunctive relief of several types, and various monetary relief.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants present evidence and argue they are entitled to a defense of qualified immunity and, in any event, did not act with deliberate indifference to plaintiffs safety.
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 Count Texas, 86 F.3d 424, 427 (5th Cir. 1996).
THE STANDARD OF SUMMARY JUDGMENT REVIEW UPON A PLEA OF OUALIFIED 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 plaintiffs clearly established constitutional rights," in analyzing a claim of qualified immunity, the test is objective reasonableness, not subjective deliberate indifference. v. City of Corinth, 135 F.3d 320, 328 (1998) (quoting quoting Briecke v. Couglin, 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
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) (Eighth Amendment); however, 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, Johnston v. Lucas, 786 F.2d at 1259. Thus, there must be an allegation of facts which will support deliberate indifference on the part of jail officials. Wilson v. Seiter, 504 U.S. 962, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Not every injury suffered by a prisoner at the hands of another rises to the level of a constitutional violation. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811, 823 (1994). The plaintiff prisoner must prove: (1) he is incarcerated under conditions "posing a substantial risk of serious harm," and (2) that the defendant prison official's state of mind is one of "deliberate indifference" to the prisoner's health or safety. Horton v. Cockrell, 70 F.3d 397, 401 (5th Cir. 1995); Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999). "[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).
Defendants present plaintiffs grievance file (Exhibit D-1); the records of protection investigations of plaintiffs complaints (Exhibit D-2); plaintiffs classification records (Exhibit D-3); plaintiffs disciplinary records (Exhibit D-4); and plaintiffs medical records (Exhibit D-5 and Exhibit D-6). By his response, plaintiff presents no evidence, and the only evidence he identifies in the records to support his claims is defendants' Exhibit D-2, the records of protections investigations of plaintiff.
Exhibit D-2 reveals investigations of plaintiffs life endangerment claims were conducted on November 1, 2000 and April 20, 2001, and that plaintiff was additionally interviewed on August 10, 2000, and December 14, 2000.
The November 1, 2000, investigation by Sgt. Vaquera, pages 17-19 of defendants' Exhibit D-2, concerned plaintiffs complaint that four members of the Mandingo Warrior gang had threatened him on August 10, 2000, while he was on the hoe squad (defendants' Exhibit D-2 at page 18). Plaintiff provided the names of the alleged gang members (defendants' Exhibit D-2 at page 17). Sergeant Vaquera noted plaintiff had made similar complaints in the past while on the Telford Unit, in May of 1997 and that a requested transfer had been denied at that time (defendants' Exhibit D-2 at page 18). He further noted that Lt. Karcher had done an earlier life endangerment investigation of plaintiff on August 10, 2000 (defendants' Exhibit D-2 at page 18). Sergeant Vaquera included copies of three offender statements provided by plaintiff which plaintiff felt substantiated his complaint (defendants' Exhibit D-2 at pages 20, 21, 22). Sergeant Vaquera opined that the gang member names provided by plaintiff were well-known in the inmate population to be suspected gang members. He further noted plaintiffs earlier similar complaints naming a different gang. He concluded that no further action was needed; and the Unit Classification Committee denied a transfer based on the conclusion that there was no evidence to justify a transfer (defendants' Exhibit D-2 at page 19).
Review of the three inmate statements provided by plaintiff to Sgt. Vaquera shows they concern an April 2000 (defendants' Exhibit D-2 at pages 20-21) and a December 1999 incident (defendants' Exhibit D-2 at page 22). The statements concerning the April incident are both printed similarly, as if by the same person, though one appears to be signed by another hand (defendants' Exhibit D-2 at page 20) and the other statement, while unsigned, has a name printed in the body in another hand (defendants' Exhibit D-2 at page 21). None of these three statements concerns the August 2000 incident in any way.
Based on the lack of any objective evidence to substantiate plaintiffs claim of life endangerment, there does not appear to be any evidence to support plaintiffs claim of deliberate indifference on the part of the defendants SHIPP and POHLMEIER, who merely denied his transfer based on Sgt. Vaquera's investigation. Further, the denial of a transfer does not appear to be unreasonable and, therefore, these defendants are also entitled to be shielded by qualified immunity.
The April 20. 2001, investigation concerned plaintiffs complaint that "Crips [have] been threatening [plaintiff] for money." The investigating officer, Lt. Karcher, noted plaintiff claimed to have been approached while on the recreation yard in March of 2001, by Crips gang members trying to extort money from plaintiff He recorded the three gang names of plaintiffs attackers' provided by plaintiff and the fact that two other inmates gave statements that "other offenders have come to him trying to get him to ride with them." Lieutenant Karcher further noted no officers on the pod remembered hearing of a problem and that a check of plaintiffs medical records failed to reveal any injury attributable to the alleged attack. Lieutenant Karcher concluded that plaintiff should be seen by the Unit Classification Committee. Plaintiff was seen by the Unit Classification Committee on April 23, 2001, and was denied a transfer due to insufficient evidence.
Plaintiff argues that Lt. Karcher found two inmates who confirmed plaintiffs claim regarding extortion by the Crips. Therefore, he contends, there was sufficient evidence. Further, as evidence of injury, plaintiff points to his medical chart showing that he received treatment and x-rays to find out why his jaw was popping, as well as pain medication of thirty days.
Plaintiffs medical record, at page 88 of Exhibit D-5, reveals an x-ray of plaintiff s mandible was taken March 22, 2001, at the request of Dr. Revell, and revealed only a normal mandible, with no definite evidence of trauma, foreign body, or other acute pathology. Thus, while plaintiff may have sustained a jaw injury about that time, the medical record does not provide prison officials with any evidence of an attack on plaintiff, or that it was caused by an attack by gang members. Moreover, while Lt. Karcher found that two inmates supported plaintiffs claim of extortion, he could not uncover any objective, non-testimonial evidence of any attack on plaintiff. It is clear the Unit Classification Committee did not give credence to the two inmate statements referenced in Lt. Karcher's report. Given the difficulty of managing a large population prison and the potential for abuse and/or manipulation by inmates, prison officials may choose to credit inmate statements without some objective evidence or corroboration but they are not required to do so. The facts presented by the record do not show that the denial of plaintiffs request for protective custody or transfer based upon the investigation report constituted deliberate indifference by defendants RICH, MOORE, and MURPHY. Further, such a denial does not appear to be unreasonable and, therefore, these defendants are also entitled to be shielded by qualified immunity.
The Court notes that plaintiff alleges prison officials do not seriously consider the needs of black offenders for protection from other black offenders; however, plaintiff has utterly failed to present evidence showing his requests for protection were met with deliberate indifference on the part of prison officials, that the refusal of his requests for unit transfer and protective custody were unreasonable, or that any racial animus was involved in any decision.
Moreover, while plaintiff argues all of his evidence would show deliberate indifference and a violation of his Eighth and Fourteenth Amendment rights, plaintiff has not attached this evidence to his summary judgment response nor has he identified any specific evidence in the record and articulated the "precise manner' in which that evidence support[s] [his] claim[s]." Stults v. Conoco. Inc., 76 F.3d 651, 656 (5th Cir. 1996) (quoting Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994),cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994)). The nonmovant must point directly to such evidence, since Rule 56 imposes no duty upon the Court to sift through the record in search of evidence to support a party's opposition to summary judgment. Forsyth, 19 F.3d at 1537. Mere conclusory allegations are not competent summary judgment evidence, and such allegations are insufficient, therefore, to defeat motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).
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 in the instant cause; and defendants are entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56(c).
It is the opinion of the Magistrate Judge and RECOMMENDATION to the United States District Judge that defendants' motion for summary judgment be GRANTED and plaintiff MICHAEL KEITH LEBLANC's claims be dismissed with prejudice.
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).