JEREMY JONES 365876 v. ANNE MARIE LEBLANC EASLEY (2021)

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

NOTICE

Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.

In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court.

ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

Signed in Baton Rouge, Louisiana, on February 23, 2021.

This matter comes before the Court on the Motion for Summary Judgment filed on behalf of defendant Anne Marie LeBlanc Easley (R. Doc. 32). The Motion is opposed. See R. Doc. 34.

The pro se plaintiff, an inmate incarcerated at the Louisiana State Penitentiary (“LSP”), Angola, Louisiana, filed this action pursuant to 42 U.S.C. § 1983 against defendant Easley complaining that his constitutional rights have been violated due to the defendant's retaliation for the plaintiff's filing of a grievance. The plaintiff seeks monetary and injunctive relief.

Defendant Easley moves for summary judgment relying upon the pleadings, a Statement of Undisputed Facts, her own Affidavit, and certified copies of the plaintiff's grievance LSP-2019-2356, Directive No. 18.002 Classification Plan, the Main Prison Classification Quarters Board dated September 6, 2019. The plaintiff opposes the Motion relying upon the pleadings, and copies of a Memorandum dated July 24, 2019, a statement from Randy Purcell, a document from the Louisiana State Penitentiary Classification Department dated September 4, 2019, correspondence from James Hill dated September 27, 2019, correspondence from James Hill dated September 20, 2019, and correspondence from James Hill and April LeBlanc dated March 2, 2020.

Pursuant to well-established legal principles, summary judgment is appropriate where there is no genuine disputed issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Rule 56, Federal Rules of Civil Procedure. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). A party moving for summary judgment must inform the Court of the basis for the motion and identify those portions of the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, that show that there is no such genuine issue of material fact. Celotex Corp. v. Catrett, supra, 477 U.S. at 323. If the moving party carries its burden of proof under Rule 56, the opposing party must direct the Court's attention to specific evidence in the record which demonstrates that the non-moving party can satisfy a reasonable jury that it is entitled to a verdict in its favor. Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 248. This burden is not satisfied by some metaphysical doubt as to alleged material facts, by unsworn and unsubstantiated assertions, by conclusory allegations, or by a mere scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). Rather, Rule 56 mandates that summary judgment 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 will bear the burden of proof at trial. Celotex Corp. v. Catrett, supra, 477 U.S. at 323. Summary judgment is appropriate in any case where the evidence is so weak or tenuous on essential facts that the evidence could not support a judgment in favor of the non-moving party. Little v. Liquid Air Corp., supra, 37 F.3d at 1075. In resolving a motion for summary judgment, the Court must review the facts and inferences in the light most favorable to the non-moving party, and the Court may not evaluate the credibility of witnesses, weigh the evidence, or resolve factual disputes. International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).

In his Complaint, the plaintiff alleges the following: On February 8, 2019, Antonio Whitaker received a complaint regarding the plaintiff hugging Randy Purcell, a re-entry mentee. Whitaker subsequently moved the plaintiff from the main prison to Camp D. Since the plaintiff was moved from the main prison, he was also removed as club president for the Sober Club, no longer to able to volunteer for hospice, lost his hobby shop box, and was not allowed to participate in the rodeo.

The plaintiff filed a grievance, and Whitaker offered to have the plaintiff moved and his privileges restored if the plaintiff agreed to drop the grievance. The plaintiff agreed but was subsequently moved to Camp F rather than back to the main prison.

In July of 2019, defendant Easley and Assistant Warden Oubre began denying plaintiff access to the law library. Easley informed the plaintiff that she did not want him in the main prison because he was a sexual predator who preyed upon re-entry mentees. On September 3, 2019, the plaintiff was informed by Oubre that he needed to resign from the hospice volunteer program because defendant Easley did not want the plaintiff in the main prison. The plaintiff refused and Oubre told the plaintiff to speak with defendant Easley in the main prison. Oubre then moved the plaintiff to the main prison west yard so that Easley could deal with the plaintiff rather than him.

On September 5, 2019, defendant Easley verbally advised the plaintiff that she was giving him a second chance after he agreed to withdraw a grievance filed against her regarding removal of the plaintiff as president of the Sober Group. However, on September 7, 2019, the plaintiff was moved by defendant Easley to Camp D. On September 8, 2019, a member of the plaintiff's family spoke to defendant Easley who stated that it was better for the plaintiff to be at Camp D so he would be away from re-entry mentees since the plaintiff was homosexual.

Defendant Easley asserts, inter alia, that she is entitled to qualified immunity in connection with the plaintiff's claim. Specifically, defendant Easley contends that the plaintiff's allegations and evidentiary showing fail to show the existence of a genuine issue of disputed fact relative to any alleged violation of the plaintiff's constitutional rights.

The qualified immunity defense is a familiar one and, employing a two-step process, operates to protect public officials who are performing discretionary tasks. Huff v. Crites, 473 F. App'x. 398 (5th Cir. 2012). As enunciated in Saucier v. Katz, 533 U.S. 194 (2001), the first step in the analysis is to consider whether, taking the facts as alleged in the light most favorable to the plaintiff, the defendant's conduct violated the plaintiff's constitutional rights. Id. at 201. Second, the district court looks to whether the rights allegedly violated were clearly established. Id. This inquiry, the Court stated, is undertaken in light of the specific context of the case, not as a broad, general proposition. Id. The relevant, dispositive inquiry in determining whether a constitutional right was clearly established is whether it would have been clear to a reasonable state official that his conduct was unlawful in the situation which he confronted. Id. at 202. The assertion of the qualified immunity defense alters the summary judgment burden of proof. Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005). Once a defendant pleads qualified immunity, the burden shifts to the plaintiff, who “must rebut the defense by establishing that the official's allegedly wrongful conduct violated clearly established law and that genuine issues of material fact exist regarding the reasonableness of the official's conduct.” Gates v. Texas Department of Protective and Regulatory Services, 537 F.3d 404, 419 (5th Cir. 2008), citing Michalik v. Hermann, supra, 422 F.3d at 262.¹

Undertaking the qualified immunity analysis with respect to the plaintiff's claim for retaliation, the Court finds that motion for summary judgment should be granted. Specifically, the Court finds that the plaintiff has failed to provide competent summary judgment evidence showing that the defendant retaliated against him for the exercise of his First Amendment rights.

It is prohibited for prison officials to take action against an inmate in retaliation for the inmate's exercise of his constitutional rights. See Woods v. Smith, 60 F.3d 1161, 1165 (5th Cir. 1995). The purpose of allowing retaliation claims under § 1983 is to ensure that prisoners are not unduly discouraged from exercising their constitutional rights. Morris v Powell, 449 F.3d 682, 686 (5th Cir. 2006). Claims of retaliation by prison inmates, however, are regarded with skepticism, lest the federal courts potentially embroil themselves in every adverse action that occurs within a penal institution. Woods v. Smith, supra, 60 F.3d at 1166. Accordingly, to prevail on a claim of retaliation, a prisoner must establish (1) that he was exercising or attempting to exercise a specific constitutional right, (2) that the defendant intentionally retaliated against the prisoner for the exercise of that right, (3) that an adverse retaliatory action, greater than de minimis, was undertaken against the prisoner by the defendant, and (4) that there is causation, i.e., that “but for” the retaliatory motive, the adverse action would not have occurred. Morris v. Powell, supra, 449 F.3d at 684. See also Hart v. Hairston, 343 F.3d 762, 764 (5th Cir. 2003); Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999). An inmate must allege more than his mere personal belief that he is the victim of retaliation, Johnson v. Rodriguez, 110 F.3d 299 (5th Cir. 1997), and inasmuch as claims of retaliation are not favored, it is Plaintiff's burden to provide more than conclusory allegations of retaliation:

To state a claim of retaliation an inmate must ․ be prepared to establish that but for the retaliatory motive the complained of incident ․ would not have occurred. This places a significant burden on the inmate․ The inmate must produce direct evidence of motivation or, the more probable scenario, allege a chronology of events from which retaliation may plausibly be inferred.

Woods v. Smith, supra, 60 F.3d. at 1166.

The competent summary judgment evidence submitted by the defendant shows that defendant Easley did not have knowledge of the plaintiff's grievance at the time he was relocated. Furthermore, the plaintiff was relocated due to institutional need based on the order or Warden Jeremy McKey as authorized by Lt. Col. William Rosso. Defendant Easley has no knowledge of and was not involved in the plaintiff's relocation and had no authority to relocate the plaintiff. Beginning in August of 2019, offenders housed at camps were no longer allowed to attend call outs and other activities at the main prison in an attempt to stop movement of contraband within the prison. This new policy resulted in the plaintiff not being able to participate in Sober Group, the hospice program, and other activities at the main prison after being moved to Camp D. See R. Doc. 32-4.

Though the plaintiff has filed an opposition, the plaintiff has not come forth with any competent summary judgment evidence showing that, but for retaliatory motives on the part of defendant Easley, the plaintiff would not have been relocated and would not have lost privileges in the main prison. In the instant matter, the plaintiff's Complaint is unverified, and thus it is not competent summary judgment evidence. Fed. Rule Civ. P. 56(c)(1); King v. Dogan, 31 F.3d 344, 346 (5th Cir.1994) (verified complaints may potentially be considered as competent summary judgment evidence to the extent the complaint comports with the affidavit requirements of Rule 56). Rule 56, in turn, requires that affidavits “must be made on personal knowledge, set out facts that would be admissible in evidence,” and make the averral under penalty of perjury. Fed. Rule Civ. P. 56(c)(4); King, 31 F.3d at 346. The plaintiff's Complaint contains no such averral, nor does his opposition.

With regards to the statement from Randy Purcell and correspondence from James Hill and April LeBlanc, these documents are not declarations made under penalty of perjury and cannot serve as competent summary judgment evidence. See Nissho–Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir.1988) (“It is a settled rule in this circuit that an unsworn affidavit is incompetent to raise a fact issue precluding summary judgment.”). Even considering those statements, they are devoid of any first-hand knowledge or evidence that defendant Easley was aware of the plaintiff's grievance at the time of his relocation.

Accordingly, due to the plaintiff's failure to designate specific evidence in the record of sufficient caliber and quantity to create a genuine issue for trial, the Court concludes that the defendant's motion is well-taken and that, on the record before the Court, defendant Easley is entitled to summary judgment as a matter of law.

RECOMMENDATION

It is recommended that the defendant's Motion for Summary Judgment (R. Doc. 32) be granted, dismissing the plaintiff's claims with prejudice.

Signed in Baton Rouge, Louisiana, on February 23, 2021.

FOOTNOTES

1.   The United States Supreme Court has held that rigid chronological adherence to the Saucier two-step methodology is not mandatory. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Although the Saucier methodology will be “often beneficial”, the Court in Pearson leaves to the lower courts discretion as to the order in which they may wish to address the two prongs of the qualified immunity analysis. Id.

RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE