Opinion
CIVIL ACTION NO. 1:04cv544-LG-JMR.
August 23, 2006
REPORT AND RECOMMENDATION
This matter is before the Court on the Motion [48-1] of defendant Sergeant Damon Reese ("Reese") for Summary Judgment which is accompanied by a Memorandum in Support [49-1]. The Court being fully advised in the premises, and after carefully considering the pleadings filed as a matter of record, along with the applicable law, finds that the defendant's Motion [48-1] for Summary Judgment should be granted.
STATEMENT OF CASE
Plaintiff filed this suit on April 28, 2004, alleging violations of his constitutional rights by defendant Reese while incarcerated at the Harrison County Adult Detention Center ("HCADC"). On June 30, 2004, Plaintiff filed an amended complaint against Reese. Plaintiff claims that on or about June 10, 2004, Reese assaulted him during a disciplinary hearing by kicking him in the leg with a steel toe boot. Plaintiff also claims that on June 25, 2004, Reese confiscated personal property from Plaintiff's cell including: legal research and information regarding his pending criminal and civil cases, letters and correspondence from his attorney, numerous personal hygiene items, his bible and bible studies and his personal journal detailing his treatment at HCADC. Plaintiff maintains that the alleged confiscation of these materials hampered his ability to adequately pursue his legal claims. Plaintiff also asserts that Reese violated his attorney-client privilege by limiting Plaintiff's contact with his attorney to one phone call a week for a two month period. The Court will interpret this assertion by Plaintiff as a claim that Plaintiff's access to the courts has been compromised.
Reese maintains that he did not assault Plaintiff at the disciplinary hearing. Reese asserts that after a third disciplinary hearing regarding Plaintiff's destruction of county property and tampering with security devices, Plaintiff's privileges were revoked for a two (2) month period. Items that could be used to tamper with security devices were removed from Plaintiff's cell, inventoried, and returned to him at the completion of the restriction period. Reese maintains that none of the confiscated items included any form of legal research, correspondence, or personal hygiene items. See Affidavit of Sergeant Damon Reese, attached as Exhibit "B" to the Motion for Summary Judgment. Plaintiff's phone privileges were restricted to one phone call a week to his attorney. See Affidavit of Major Dianne Gaston-Riley, attached as Exhibit "E" to the Motion for Summary Judgment.
Plaintiff seeks compensatory damages totaling Six-Hundred Thousand dollars ($600,000), punitive damages totaling One-Hundred Fifty Thousand dollars ($150,000), nominal damages, court costs and attorney's fees totaling Twenty-Thousand dollars ($20,000). Additionally, Plaintiff seeks injunctive relief including the termination of Reese as a corrections officer at HCADC and the requirement that Reese attend an anger management class.
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). "The mere existence of a factual dispute does not by itself preclude the granting of summary judgment." St. Amant v. Benoit, 806 F.2d 1294, 1296-97 (5th Cir. 1987). "The requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). In other words, "[o]nly disputes over the facts that might effect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248. Furthermore, it is well settled in this circuit that "[b]are bones allegations are insufficient to withstand summary judgment because the opposing party must counter factual allegations by the moving party with specific, factual disputes; mere general allegations are not a sufficient response.'" Howard v. City of Greenwood, 783 F.2d 1311, 1315 (5th Cir. 1986) ( quoting Nicholas Acoustics Specialty Co. v. H M Constr. Co., 695 F.2d 839, 845 (5th Cir. 1983)).
In considering a motion for summary judgment, the trial court views the evidence in the light most favorable to the party resisting the motion. See Howard v. City of Greenwood, 783 F.2d 1311, 1315 (5th Cir. 1986). To survive summary judgment, the non-movant must demonstrate the existence of a disputed issue of material fact. See Anderson v. Liberty Lobby, 477 U.S. 242, 247-48 (1986). To avoid the entry of summary judgment, the non-moving party must bring forth significant probative evidence demonstrating the existence of a triable issue of fact. See Howard, 783 F.2d at 1315.
42 U.S.C. § 1983 imposes liability upon any person who, acting under the color of state law, deprives another of federally protected rights. Therefore, section 1983 affords a remedy to those who suffer, as a result of state action, deprivation of rights, privileges, or immunities secured by the Constitution and the Laws of the United States. White v. Thomas, 660 F. 2d 680,693 (5th Cir. 1981). A plaintiff cannot succeed merely by showing any deprivation of his rights. Section 1983 was intended to protect rights protected by federal law. Karmi-Panahi v. Los Angles Police Dept., 839 F. 2d 621 (9th Cir. 1988); Wright v. Collins, 766 F.2d 841 (5th Cir. 1985).
ANALYSIS
In his motion for Summary Judgment [48-1], Reese contends that Plaintiff's official capacity claims against him are in reality claims against the office of the Sheriff of Harrison County. Thus, since the Sheriff's office is a local governmental entity, Plaintiff must demonstrate that his claims are actionable under the U.S. Supreme Court's jurisprudence regarding municipal liability. Reese also contends that Plaintiff's individual capacity claims are subject to a qualified immunity defense because not only has the Plaintiff failed to properly allege a constitutional violation pursuant to Section 1983, but Reese's conduct was objectively reasonable and he was acting within the scope of his discretionary authority.
Under 42 U.S.C. § 1983, liability may be imposed upon any person who, acting under the color of state law, deprives another of federally protected rights. It neither provides a general remedy for the alleged tort of state officials, nor opens the federal courthouse doors to relieve complaints of all who suffer injury at the hands of the state or its officers. Municipal liability under section 1983 requires proof of three elements: a policymaker; an official policy; and a violation of constitutional rights whose "moving force" is the policy or custom. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001); Monell v. Dep't of Soc. Services, 436 U.S. 658, 694 (1978). Monell and later decisions reject municipal liability predicated on respondeat superior, because the text of section 1983 will not bear such reading. Board of Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403 (1997).
A suit against a governmental agent or officer in his official capacity is a suit against the office that the employee holds and not against the actual employee. See Kentucky v. Graham, 473 U.S. 159, 165 (1985). The three requirements for municipal liability outlined in Piotrowski are necessary in order to distinguish between individual violations by local employees and those that can be fairly attributed to conduct by the governmental entity itself. See Piotrowski, 237 F.3d at 578-79. "The unconstitutional conduct [alleged by the plaintiff] must be directly attributable to the municipality through some sort of official action or imprimatur; isolated unconstitutional actions by municipal employees will almost never trigger liability." Id. at 578. See Bennet v. City of Slidell, 728 F.2d 762, 768 n. 3 (5th Cir. 1984).
The three requirements for municipal liability detailed above are necessary in order to distinguish between isolated violations committed by local employees and those violations which may be committed by the government itself. Piotrowski, 237 F.3d at 578. Therefore, municipalities may not be held liable for acts of lower level employees, but may be held liable for constitutional violations committed pursuant to an official policy or custom. Id. at 578. In addition, not only must the plaintiff establish that a policy or custom of the municipality was the "moving force" behind the alleged violation of a constitutional right; he must also establish that the municipality was "deliberately indifferent" to the known consequences of the policy. Id. at 580. The Fifth Circuit has noted that the plaintiff bears an "extremely heavy burden" in establishing both the municipality's deliberate indifference and a causal link between the alleged custom and the alleged constitutional violation. Peters v. City of Biloxi, 57 F.Supp. 2d 366, 376 (S.D. Miss. 1999). See Snyder v. Trepagnier, 142 F.3d 791, 798 (5th Cir. 1998); Piotrowski, 237 F.3d at 580 (Stating that these two requirements "must not be diluted.").
The Plaintiff claims that Reese, who served as a Sergeant at HCADC, is liable under Section 1983, through his employment by the Sheriff of Harrison County. The Court notes that Plaintiff's official capacity claims against the defendants is, in reality, a claim against the office for which they were employed at the time of the alleged incidents and, ultimately, Harrison County. To the extent the Plaintiff brings this action against Reese in his official capacity, he must establish a constitutional violation and in addition must satisfy the test for official capacity liability. This test requires the plaintiff to establish three things: first, that the Sheriff's office had an official policy, practice or custom which would subject it to section 1983 liability; second, that the official policy is linked to the constitutional violation(s); and third that the official policy reflects the Sheriff's office's deliberate indifference to that injury. See Lawson v. Dallas County, 286 F.3d 257, 263 (5th Cir. 2002).
Plaintiff has failed to allege the existence of an official policy resulting in the violations of his constitutional rights. Plaintiff simply alleges that Reese assaulted him once and removed legal documents and personal hygiene items from his cell. See Complaint. Plaintiff has failed to provide any proof to substantiate his conclusory allegations. Therefore, the Court finds that such bare allegations, without more, are simply insufficient to support a claim that there existed a policy or custom which was the moving force behind any alleged constitutional violation. At best, each such assertion amounts to an isolated incident of negligent conduct, which, by itself, is insufficient to support the instant official capacity claims against the defendants.
The Fifth Circuit has held that a "state jail official's liability for episodic acts or omissions cannot attach unless the official had subjective knowledge of a substantial risk of serious harm . . . but responded with deliberate indifference to that risk." Hare v. City of Corinth, 74 F.3d 633, 650 (5th Cir. 1996). In other words, for liability to attach to a jail official, the plaintiff must show that the official had subjective knowledge of a substantial risk of serious harm to the inmate, but responded with deliberate indifference to that risk. Id. at 649. The Plaintiff has not offered any evidence that would create a genuine issue of material fact as to whether Reese possessed subjective knowledge of a substantial risk of serious harm, or that he responded with deliberate indifference to that risk. Deliberate indifference is the subjective intent to cause harm, and it cannot be inferred from a jail official's failure to act reasonably. It is not the same as negligence. Id. at 648. "Negligent conduct by a prison official cannot be the basis for a due process claim." Id. at 646.
Reese has raised a defense of qualified immunity in response to Plaintiff's claims against Reese acting in his individual capacity. Reese, as a law enforcement officer in his individual capacity, may assert the defense of qualified immunity. See Gagne v. City of Galveston, 805 F.2d 558, 559 (5th Cir. 1986). Suits against law enforcement officers in their individual capacities must allege specific conduct giving rise to a constitutional violation. See Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002). The standard requires more than conclusory assertions alone to overcome the qualified immunity defense. See Id.; Elliot v. Perez, 751 f.2d 1472, 1479 (5th Cir. 1985). When considering a qualified immunity defense one must first determine whether, at the time of the event, the asserted constitutional violation implicates a clearly established constitutional right. If the plaintiff satisfies this threshold requirement, one must examine whether the defendant's conduct was objectively reasonable in light of clearly established law at that time. See Hare v. City of Corinth, 36 F.3d 412, 414 (5th Cir. 1994); Salas v. Carpenter, 980 F.2d 299, 305-06 (5th Cir. 1992).
Other than making bare allegations that his constitutional rights were violated, Plaintiff has failed to offer any proof that such constitutional violations actually occurred. Plaintiff merely offers conclusory assertions that Reese kicked him in the leg and later confiscated legal documents and personal hygiene items from his cell. See Complaint and Amended Complaint. Even if Plaintiff offered adequate proof that his legal materials and attorney correspondence were taken from his cell, no constitutional violation denying him access to the courts occurred. This is evident by the numerous motions and documents filed by Plaintiff in this Court since the alleged confiscation of his belongings. Additionally, Plaintiff has failed to show that he suffered any actual injury resulting from either the alleged confiscation of his legal documents or the limiting of his phone privileges to one phone call a week to his attorney for a two month period. In order for a plaintiff to succeed in an access to the courts claim, he must show actual injury, which includes evidence proving that the denial of legal resources hindered his efforts to pursue a non frivolous case. See Carter v. Lowndes County, 89 Fed. Appx. 439; 2004 U.S. App. LEXIS 1063 ( citing Lewis v. Casey, 518 U.S. 343, 349-51, 135 L. Ed. 2d 606, 116 S. Ct. 2174 (1996)). Therefore, the Court finds that there are no genuine issues of material fact as to Reese's liability to Plaintiff in his individual capacity and he is entitled to qualified immunity.
Plaintiff claims that he has suffered mental distress as well as pain and suffering as a result of the alleged constitutional violations committed by Reese. See Complaint. The Prison Litigation Reform Act requires that a physical injury, suffered while in custody, must be shown in order for a prisoner to commence a federal civil action for mental or emotional injuries. 42 U.S.C. § 1997e(e). If a plaintiff fails to show a physical injury, § 1997e(e) bars recovery for mental and emotional damages. See Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999). In determining whether a prisoner has sustained a necessary physical injury to support a claim for mental or emotional suffering, the "injury must be more than de minimis, but need not be significant." Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
Plaintiff alleges that Reese kicked him in the leg during a disciplinary hearing on or about June 10, 2004. Plaintiff seems to confuse his dates because he claims to have seen a nurse, regarding the alleged assault, who prescribed him Motrin for pain around the week of May 25, 2004. See Response in Opposition to Motion for Summary Judgment. Regardless of the confusion of dates, the Plaintiff has failed to establish that he suffered a physical injury. Plaintiff has not produced any record that an injury to his leg actually occurred nor has he provided the Court with any proof that the Motrin prescribed to him was a result of the alleged assault. The Plaintiff's failure to prove a physical injury bars his recovery for emotional or mental damages under 42 U.S.C. § 1997e(e).
CONCLUSION
Based on the foregoing analysis, this Court finds Plaintiff has failed to demonstrate that Reese had or employed an unconstitutional policy and has failed to show that Reese acted with deliberate indifference. Plaintiff has also failed to show that Reese is not entitled to qualified immunity in his individual capacity nor has Plaintiff been denied access to the courts. Furthermore, Plaintiff is not entitled to mental or emotional damages because he has failed to establish the existence of a physical injury. Accordingly, this Court finds that Reese's Motion [48-1] for Summary Judgment should be granted and that all claims against Reese should be dismissed with prejudice.
In accordance with the Rules of this Court, any party, within ten days after being served a copy of this recommendation, may serve and file written objections to the recommendations, with a copy to the District Judge, the U.S. Magistrate Judge, and the opposing party. The District Judge at that time may accept, reject or modify in whole or in part, the recommendation of the Magistrate Judge, or may receive further evidence or recommit the matter to this Court with instructions. Failure to timely file written objections to proposed findings, conclusions, and recommendations contained in this report will bar an aggrieved party, except on the grounds of plain error, from attacking on appeal unobjected to proposed factual findings and legal conclusions accepted by the District Court. Douglass v. United States Auto Ass'n, 79 F.3d 1425 (5th Cir. 1996).