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Luckett v. Kahoe

United States District Court, S.D. Mississippi, Western Division

August 28, 2018

ANDRE LUCKETT PLAINTIFF
v.
WARDEN CLIFTON KAHOE DEFENDANT

          REPORT AND RECOMMENDATION

          Michael T. Parker United States Magistrate Judge

         THIS MATTER is before the Court on Defendant's Motion for Summary Judgment [29] and Motion to Strike [36]. Having considered the Motions, the record, and the applicable law, the undersigned recommends that the Motion to Strike [36] be denied, the Motion for Summary Judgment [29] be granted, and this action be dismissed with prejudice.

         BACKGROUND

         On July 10, 2017, Plaintiff Andre Luckett, proceeding pro se and in forma pauperis, filed this civil action pursuant to 42 U.S.C. § 1983. The allegations in Plaintiff's complaint occurred while he was incarcerated as a post-conviction inmate at the Jefferson-Franklin Correctional Facility. In his complaint and as clarified in his testimony at the Spears[1] hearing, Plaintiff alleges that Defendant violated his constitutional rights by failing to provide him adequate protection from harm.

         According to Plaintiff, on May 5, 2017, at approximately 3:15 p.m., three inmates approached him and one of the inmates asked Plaintiff if he had stolen the inmate's soap. After Plaintiff denied stealing the soap, the inmate attempted to punch Plaintiff. At that point, the three inmates allegedly attacked Plaintiff. The inmates kicked and “stomped” Plaintiff while he was on the floor. According to Plaintiff, he did not expect the confrontation or attack. Plaintiff alleges that he did not steal any soap and had no problems with the three inmates prior to the attack.

         According to Plaintiff, officers responded to the attack after approximately five minutes. The guards took Plaintiff to the medical unit for evaluation and then to Jefferson County Hospital for treatment. Plaintiff allegedly suffered a cut above his left eye, which required stitches.

         Plaintiff alleges that no officer was located in the guard tower or in his zone at the time of the attack. After the attack, Defendant Warden Kahoe allegedly told Plaintiff that he would review the video footage of the attack, but Plaintiff did not communicate with Defendant after that encounter. Plaintiff claims that Defendant should have made sure officers were in the tower or in the zone and that his failure to do so gives rise to a claims for failure to protect him from harm.

         On May 15, 2018, Defendant filed his Motion for Summary Judgment [29]. Thereafter, Plaintiff filed a Response [32], Defendant filed a Rebuttal [34], and Plaintiff filed a Surrebuttal [35].

         STANDARD FOR SUMMARY JUDGMENT

         A motion for summary judgment will be granted only when “the record indicates 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.'” Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004) (citing Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The Court must view “the evidence in the light most favorable to the nonmoving party.” Id. The nonmoving party, however, “cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or ‘only a scintilla of evidence.'” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)). In the absence of proof, the Court does not “assume that the nonmoving party could or would prove the necessary facts.” Little, 37 F.3d at 1075 (emphasis omitted).

         ANALYSIS

         Plaintiff asserts that Defendant failed to protect him from harm at the hands of his fellow inmates. Under the Eighth Amendment, prison officials have a duty to protect inmates from violence by fellow inmates. Longoria v. Texas, 473 F.3d 586, 592 (5th Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 832-33 (1994)). However, every injury suffered by one prisoner at the hands of another does not amount to a constitutional violation by prison officials. Farmer, 511 U.S. at 834. To prevail on a failure to protect claim, Plaintiff must show that “he was incarcerated under conditions posing a substantial risk of serious harm and that prison officials were deliberately indifferent to his need for protection.” Jones v. Greninger, 188 F.3d 322, 326 (5th Cir. 1999).

         Deliberate indifference consists of the official being aware of both the “facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. Deliberate indifference “‘is an extremely high standard to meet.'” Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (quoting Domino v. Texas Dep't of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001)). Negligent failure to protect an inmate does not rise to the level of a constitutional violation. Oliver v. Collins, 914 F.2d 56, 60 (5th Cir. 1990). The test for establishing deliberate indifference is “one of subjective recklessness as used in the criminal law.” Farmer, 511 U.S. at 837.

         In his Motion [29], Defendant argues that he is entitled to summary judgment because he was not personally involved in the alleged assault and because he was not aware of a threat to Plaintiff. Indeed, Plaintiff failed to present, and the record does not contain, evidence that Defendant was involved in the assault or knew the three inmates posed an imminent threat to Plaintiff and ignored that threat. Plaintiff did not make Defendant aware of any ...


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