Jackson v. Tanner

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

BRANDON KEITH JACKSON CIVIL ACTION

VERSUS NUMBER: 17-13503

ROBERT C. TANNER, ET AL. O RDER A ND RE ASON S SECTION: “S”(5)

Before the Court is the 28 U.S.C. §1915(e)/Rule 12(b)(6) motion to dismiss of Defendants, Sergeant Robert Goings, Major Darryl Mizell, and former Warden Robert C. Tanner of the B.B. “Sixty” Rayburn Correctional Center (“RCC”) in Angie, Louisiana. (Rec. doc. 70). Defendants’ motion is opposed. (Rec. doc. 74). The moving Defendants seek the dismissal of the following claims set forth in Plaintiff’s second amended complaint: 1) Plaintiff’s claim for “[u]nreasonable conditions of 1/ confinement” as pled in Count 1 against Goings and Mizell in their individual capacities; and 2) Plaintiff’s claim for “[s]upervisory liability” as pled in Count 7 against Tanner in his individual capacity. As to Count 1, Defendants argue that Plaintiff alleges only verbal threats on the part of Goings, which are not actionable under 42 U.S.C. §1983. (Rec. doc. 70-1, pp. 6-9). With respect to Mizell, Defendants argue that Plaintiff has pled no facts establishing personal involvement on Mizell’s part and nIdo. .allegations regarding any specific policies that may or may not have in place at RCC. ( ) Defendants further argue that inmates such as Plaintiff have no constitutional right to have prison disciplinIda.ry or administrative proceedings properly investigatreedsp, ohnadnedalet dsu, poer rfioorrmally resolved. ( ) As to Count 7, Tanner argues that the doctrine of is inapplicable to §1983 1/ pArsohccreoefdti nvg. sIq abnadl that the viability of supervisory liabilityId i.s questionable in the wake of , 556 U.S. 662, 129 S.Ct. 1937 (2009). ( at pp. 9-11). Tanner further argues that there are no allegations of personal involvement on his part and no allegations

that the alleged deprivation of Plaintiff’s constitutional rights occurred as a result of a subordinate’s implementation of his affirmative wrongful policIdie.s or as a result of a breach by him of an affirmative duty specially imposed by state law. ( ). In opposition, Plaintiff argues that he alleges more than mere verbal abuse by Goings but, rather, that he actually ingested bug repellant at Goings’ urging and direction. (Rec. doc. 74, pp. 3-5). In any event, Plaintiff maintains that 42 U.S.C. §1997e(e) does not bar an award of nominal or punitive damages or declaratory relief and that the prayer for rIedli.ef encompassed in his second amended complaint adequately seeks such remedies.

( ). With respect to Major Mizell, Plaintiff argues that he was, in fact, “personally involved” because he was charged with overseeing investigations of the two incidents complained of, which he either failed to do or did do but Icdo.ncealed his findings in an active coverup for Goings, his alleged stepson, and Spears. ( ). Plaintiff asserts that Mizell’s coverup wIda.s a foreseeable contributing factor to the violation of Plaintiff’s constitutional rights. ( at pp. 6-8). Finally, irrespective of Tanner’s personal involvement, Plaintiff argues that the allegations in the second amIde.nded complaint are sufficient to state a claim based on his failure to train or supervise. ( at pp. 8-10).

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows for the dismissal of a claim if the plaintiff faSilese tBoe plll eAatdl. fCaocrtpu.a lv .a Tllwegoamtibolnys in support of his claim thast ewe oaulsldo Cenutviitllleie rh ivm. T taoy lroerlief. , 550 U.S. 544, 555 (2007); th , 503 F.3d 397, 401 (5 Cir. 2007). Those “‘[f]actual allegations must be Gonzalez v. Kay enough to raise a righcet rtto. rdeelnieief dabove the speculative level.’” Twombly , 577 F.3d 600, th 603 (5 Cir. 2009), , 559 U.S. 936 (2010)(quoting , 550 U.S. at 555). “To survive a motion to dismiss, a complaint must contain sufficientA sfahcctruoaftl vm. Iaqtbtearl, accepted as true, to ‘state a claim to reTlwieof mthbalty is plausible on its face.’” , 556 U.S. 662, 678 (2009) (quoting , 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the courtI dto. draw the reasonable inference that the defendant is liable for the misconduct alleged.” The Court must accept all wellL-polremaadnedd fva. cUtsS aUsn twruiree adn, dIn dc.raw all reasonable inferences in favor of the th non-moving party, , 565 F.3d 228, 232 (5 Cir. 2009I)q,b bault the Court need not accept as true legal conclusions couched as factual allegations. , 556 U.S. at 678. While a complaint need not contain detailed factual allegations, it does demanIdd. more than an unadorned “the-defendant-unlawfully-harmed-me” accusation. Threadbare recitals of the elIedm. ents of a causeT wofo macbtiloy,n , supported by mere conclusory statements, do not suffice. at 677 (citing 550 U.S. at 555). “Determining whether a complaint states a plausible claim for relief … will be a context-specific task that rAesqhucriroefts the reviewing court to draw on its judicial experience and common sense.” , 556 U.S. at 679. With respect to Count 1 of Plaintiff’s second amended complaint, in order to establish a constitutional violation, an inmate must demonstrate, first, that he was deprived

of the minimal civilized measure of life’s necessities or some basic human need and, second, Htheramt apnri svo. nH oolifdfiacyials acted with deliberate indifference to tFhaem ienrm va. tBer’se nhneaanlth or th safety. , 238 F.3Sdee 6 a6l0so, 6T6a4y l(o5r v .C Wir.o 2o0ds01) (citing , 511 th U.S. 825, 114 S.Ct. 1970 (1994)). , 211 Fed.Appx. 240, 241 (5 Cir. Pittman v. Allison 2006); , No. 08-CV-0328, 2010 WL 2736961 at *3 (S.D. Miss. Jul. 9, 2010). “Deliberate indifference is established by showing that the defendant officials ‘(1) were aware of facts from which an inference of excessive risk to the prisoner’s health or safety

could be dHraewrmn aannd (2) that they actually dreBwr aadnle iyn fve. rPeuncckee tthtat such potential for harm th existed.’” , 238 F.3d at 664 (quoting , 157 F.3d 1022, 1025 (5 Cir. 1998)). “ʻDeliberate indifference’ is a stringent standard of fault, one which requires pForordo fv t. hGauts ma amnunicipal actor disregarded a known or obvious consequence of hisa adcotpiotend.” , No. 11-CV-2950, 2012 WL 2567B0o6a3r da to *f 8th (eE C.Do.u Lnat.y M Caoym 1m1i,s s2i0on1e2r)s, of Bryan, 2Co0u1n2t Wy, LO k2l5a6h7o0m3a4 v(.E B.Dro. Lwan. Jul. 2, 2012) (citing , 520 U.S. 397, 410, 117 S.Ct. 1382, 1391 (1997)). It Nhoarst obne evn. eDqimuaatzeadn awith “subjective recklessness” as that term is used in criminal law. th , 122 F.3d 286, 291 (5 Cir. 1997). Defendants are correct that mere verbal abuse or threatening languHagaer veoyf va. cSotarlrdeecrtional officer do not, even if true, amWoiulsnotn t ov . cBoundsntietrutional violations. th th , S1e3e0 a lFseod C.Alifptponx. v6. 5S4p r(a5gu eCir. 2005); , 976 F.2d 957, 958 (5 Cir. 1992). , No. 14-CV-3513, 2014 WL 5456527 at *3 (C.D. Calif. Oct. 27, 2017) (allegations of verbal threats and/or verbal harassment alone are insufficient to state an Eighth Amendment claim). Plaintiff, however, alleges more than just verbal abuse by Goings. Rather, Plaintiff alleges that Goings, knowing that Plaintiff suffered from mental health conditions that made him particularly susceptible to verbal abuse, not only threatened that harm would come to Plaintiff’s mother if he did not ingest insect repellant and take his own life as directed but also provided Plaintiff with the agent that would lead to that outcome. As one court has observed, “[e]ncouraging an inmate to perform actions tHhaartp ceor uvl.d L ahueflepn hbeimrg commit suicide presents an objectively serious risk to the inmate.” , No. 04-CV-0699, 2004 WL 2360382 at *2 (W.D. Wis. Oct. 15, 2004). PIlda.intSifef eh aalss ot hCuaslh oaullneg ve. dH asrugffriocvieent facts to state a claim under the Eighth Amendment. th ( ). , 312 F.3d 730, 734-35 (5 Cir. 2002) (although claims of verbal abuse are not actionable, case remanded for hearing to determine level of injury sustained). Even if that were not the case, the physical injury requirement in 42 U.S.C. §1997e(e) does not bar claims for nominal/punitive damages or Pdoemclaierra tvo. rLye ornealiredf, remedies that were broadly embraBceody db vy. PDlraiivnetriff’s prayer for relief. , th th H53u2tc Fheinds. Av.p Mpxc.D 5a5n3ie l(s5 Cir. 2013); , 495 Fed.Appx. 518, 524 (5 Cir. 2012); th , 512 F.3d 193, 197-98 (5 Cir. 2007). Defendants next move for the dismissal of Count 1 as to Mizell, arguing that he was not personally involved in the incidents at issue and that Plaintiff has no right to a proper investigation into the circumstances surrounding the incidents. Plaintiff counters that Mizell was “personally involved” because it was his responsibility to investigate the two incidents which he either failed to do or did do but concealed his findings as part of an active coverup for Goings, his alleged stepson, and Spears. Plaintiff’s allegations that Mizell had an affirmative obligation to investigate the two incidents states a claim for relief thaSte ies plauAsilbelxea nodne irt sv .f aPceer railnld is thus sufficient to withstand dismissal under Rule 12(b)(6). , th e.g., , 916 F.2d 1392, 1396 (9 Cir. 1990). Finally, as to Count 7, Tanner first questiIoqnbsa lwhether the concept of supervisory liability continues to be viable in the wake of . He then argues that he was not personally irnevsoplovnedde aint stuhpee riniocridents in question, that he cannot be held liable under the doctrine of , and that there is no allegation that the alleged deprivation of Plaintiff’s rights occurred as a result of a subordinate’s implementation of his affirmative wrongful policies or as a result of a breach by Tanner of an affirmative duty specially imposed by state law. Plaintiff, on the other hand, argues that irrespective of personal

involvement, his allegations are sufficient to state a claim for failure to train/supervise Goings, Spears, Dr. Cleveland, and Mizell. For present pIqubraploses, suffice it to say that the concept of supervisory liability remains viable post- with the proviso that each government officHiaalr,r hisi sv .o Gr uhsemr aonfficial title notwithstanding, is only liable for his or her own miscondIuqcbta. l , No. 18-CV-7685, 2020 TWhLo m43p6ki5n4s9 v0. (BEe.lDt. La. Jul. 30, 2020) (citing , 556 U.S. at 677, 129 th S.Ct. at 1949 and , 828 F.2d 298, 303 (5 Cir. 1987)). “Of course, a supervisory official can also be held liable for a constitutional violatiIodn. resulting from [his or] her own failure to train or supervise [his or] her subordinates.” In order to prevail under such a theory, a plaintiff must demonstrate that: (1) the supervisor either failed to supervise or train the subordinate officer; (2) a causal connection exists between the failure to train or supervise and the violation of plaintiff’s constiDtuatvioidnsaoln r ivg. hCtist;y aonf dS t(a3f)fo trhde, fTaeixluarse to train or supervise amounts to deliberate indifference. th , 848 F.3d 384, 397 (5 Cir. 2017). “Deliberate indifference can be demonstrated in two ways. First, a plaintiff may demonstrate that a [defendant] had notice of a pattern of similar violations. Second, a plaintiff may demonstrate liability based on a single incident if the consItdit.utional violation was the highly predictable consequence of a particular failure to train. (emphasis added; citations and quotation marks omitted). In the matter at hand, Plaintiff alleges that Tanner, as the top supervisory official at RCC, had a duty to train and supervise its employees and that he failed to train Goings, Spears, and Dr. Cleveland on how to deal with inmates like Plaintiff with serious medical conditions and their obligations under the ADA and that he failed to supervise them on their interactions with Plaintiff. He further alleges that Tanner failed to train Mizell on his

duties to investigate incidents at RCC, that his failures amount to deliberate indifference, and that discovery will reveal a pattern of similar violations by the Defendants such that Tanner had actual or constructive notice of the alleged constitutional violations. Finally, Plaintiff alleges that Tanner’s failure to train and supervise was both a tacit approval of, or acquiescence in, his subordinates’ conduct and a repudiation of Plaintiff’s rights such that Tanner was a moving force behind the constitutional violations. At the pleading state, these allegations arCele avte llaenasdt vm. Ginaiumtraellayu sxufficient to defeat a motion to dismiss predicated on Rule 12(b)(6). , 198 F.Supp.3d 719, 739-40 (M.D. La. 2016). For all of these reasons, Defendants’ mot1io8nt hto dismiss is denAieudg. ust

New Orleans, Louisiana, this day of , 2021.

MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE