Payne v. Lopinto et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

LYNN SENTELLE PAYNE

CIVIL ACTION
VERSUS

NO. 24-2732
JOSEPH P. LOPINTO, III, ET AL. DIVISIONS “5”

ORDER AND REASONS

Before the Court is the Motion for Summary Judgment Pursuant to F.R.C.P. 56 filed by
Defendants, Sheriff Joseph P. Lopinto, III; Deputy Chief Sue Ellen Monfra; Jefferson Parish
Sheriff’s Office (“JPSO”) Sergeant Christian Silbernagel; JPSO Captain Bryan Bordelon; JPSO
Major Edward Olsen; and JPSO Lieutenant Chris Morris (collectively, “Defendants”). Plaintiff
Lynn Sentelle Payne filed an opposition to the motion (rec. doc. 48) and Defendants filed a
reply. (Rec. doc. 49). Also before the Court are the Motion for Appointment of Counsel (rec.
doc. 50) and the Motion to Stay Consideration of Defendants’ Motion for Summary Judgment,
or Alternatively for Relief Under Rule 56(d), Extension of Time, and Reconsideration of
Appointment of Counsel (rec. doc. 51) filed by Plaintiff. Having reviewed the pleadings and
the applicable law, the Court rules as follows.
I. Background
A. Plaintiff’s Allegations
Plaintiff filed his original Complaint against Defendants under 42 U.S.C. § 1983 on
November 20, 2024. (Rec. doc. 1). In the original Complaint, Plaintiff alleged that “[he] was
REFUSED the privilege and opportunity to be assigned to General Population because of the
fact that I’m (Transgender). Not neither time did I request to be placed in Protective Custody,
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or on Administrative Segregation, so I should be given the same equal opportunity as ALL
other inmates and allowed into general population (per my request and consent).” (Id. at 6).
On August 18, 2025, Plaintiff filed an Amended Complaint (with leave of Court). (Rec.
doc. 27).
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In his Amended Complaint, Plaintiff alleges that “[b]etween September 27, 2024,
and February 11, 2025, [he] experienced numerous instances of cruel, discriminatory, and
abusive treatment while housed at JPCC . . . .” (Id. at 1). Plaintiff alleges that he was placed
in “[s]egregation due to [his] sexual orientation – as a transgender male beginning on
September 27, 2024.” (Id.). Plaintiff avers that he suffered “[c]hronic neuropathy in [his]
hands and feet – attributed to extreme isolation . . . without medical attention.” (Id.).
Plaintiff maintains that he was subjected to targeted assaults by another inmate, Isaac
Williams, who threw urine into his cell on January 3, 2025, and thereafter doused him and
his cell with human feces and urine on January 5, 2025. (Id.). Surveillance footage reportedly
captured both incidents, and “criminal charges were filed as a result.” (Id.). Plaintiff alleges
that because of these events, he was diagnosed with PTSD on February 11, 2025. (Id.).
B. Plaintiff’s Classification and the Incidents at JPCC
On September 27, 2024, Defendant Silbernagel (as the Commander of the
Classification Division for the Jefferson Parish Correctional Center (“JPCC”)) informed
Plaintiff that he was being referred to administrative segregation “[f]or your safety as well
as the safe and orderly operation of this facility. You are a homosexual male inmate that has
breast implants. Therefore, for your safety as well as the safe operation of this facility I am

1
Although Plaintiff did not adopt the allegations of his original Complaint in his Amended Complaint, the
allegations overlap between the two pleadings.
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recommending you to administrative segregation.” (Rec. doc. 45-4 at 3). The classification
packet also includes an interview with Plaintiff from September 27, 2024. Id. In that
interview, a form was completed in which Plaintiff responded to the sexual preference
question that he was homosexual. (Id. at 6). The inmate profile for Plaintiff indicates that he
is male. (Id. at 5). Plaintiff requested administrative review of his classification on
September 28, 2024. (Rec. doc. 45-5). On October 2, 2024, at the administrative hearing,
the Administrative Review Board (“the Board”) agreed with Silbernagel’s determination to
keep Plaintiff on administrative segregation. (Rec. doc. 45-6).
On October 2, 2024, Plaintiff appealed the decision of the Board and their decision to
keep him on administrative segregation. (Rec. doc. 45-7). A hearing of Plaintiff’s appeal was
held on November 4, 2024. (Rec. doc. 45-8). The Board again held that Plaintiff would
remain on administrative segregation, to be reviewed in 30 days. (Id.). On November 4,
2024, Plaintiff submitted a grievance, complaining that he was placed on administrative
segregation against his own consent because he is homosexual with breast implants. (Rec.
doc. 45-9). He also complained that he hadn’t appeared before the Board for seven days.
(Id.). In response to this grievance, Silbernagel again stated that he was placed in
administrative segregation for the safety and security of the facility, as well as his personal
wellbeing. Silbernagel wrote: “At this time, the facility does not have a housing area for
homosexual inmates.” (Rec. doc. 45-7). On November 4, 2024, Plaintiff again appealed the
decision of the Board. (Rec. doc. 45-11). On December 27, 2024, the Board again agreed
with Silbernagel’s determination to keep Plaintiff on administrative segregation. (Rec. doc.
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45-12). On December 27, 2024, Plaintiff again appealed the decision of the Board. (Rec. doc.
45-13).
An administrative hearing on the appeal was held on January 27, 2025. (Rec. doc. 45-
14). Again, the Board agreed with Silbernagel’s determination to keep Plaintiff on
administrative segregation, with a review set in 30 days. (Id.). On January 27, 2025, Plaintiff
appealed that decision of the Board. (Rec. doc. 45-15). However, on February 11, 2025, a
transfer authorization was executed, sending Plaintiff to Raymond Laborde Correctional into
DOC custody. (Rec. doc. 45-16).
Before the transfer, however, on January 2, 2025, Sergeant Yakaba Williams was
notified that a battery had been committed in Pod 4DR. (Rec. doc. 45-17). Deputy James
Mauk notified Central Control that Lynn Payne reported that inmate Isaac Williams threw
urine on him from the toilet into his cell. (Id.). Surveillance video was reviewed and revealed
Williams throwing liquid from his toilet into Payne’s cell more than four times. (Id.). Payne
advised that he wished to pursue criminal charges against Williams, and Williams was
charged with Louisiana Revised Statute § 14:35, Simple Battery. (Id.).
On January 14, 2025, Deputy Hewitt received a call from Deputy Alexander Godinez,
who stated that an inmate in Pod 4D was throwing feces on another inmate (Plaintiff). (Rec.
doc. 45-18). Deputy Hewitt arrived on scene and located brown liquid substances on the
floor in front of Cell 5 and on the wall inside. (Id.). Officer Godinez informed Hewitt that
while out at his one-hour shower, inmate Isaac Williams was seen by officer Godinez
throwing feces into the cell of Inmate Payne. (Id.). Video surveillance captured the incident.
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(Id.). Payne wished to pursue charges, and Williams was again charged with Section 14:35,
simple battery. (Id.).
C. The Affidavit of Sgt. Silbernagel
Attached to Defendants’ Motion for Summary Judgment is the Affidavit of Sgt.
Silbernagel, one of the named Defendants in this lawsuit. Silbernagel affirms in his affidavit
that Plaintiff was not referred to administrative segregation based solely on the fact that he
identifies as transgender. (Rec. doc. 45-19 at ¶ 5). Rather, Silbernagel maintains that
Plaintiff was referred to administrative segregation for his safety as well as the safe and
orderly operation of the JPCC. (Id. at ¶ 6). Silbernagel also affirms that the JPCC does not
have a separate housing wing for inmates who identify as transgender. (Id. at ¶ 7). The JPCC
has limited space and resources and cannot support a separate housing wing for inmates
who identify as transgender. (Id. at ¶ 8). More importantly, it is crucial to recognize that it
is the Parish of Jefferson, and not the JPSO – neither of which are defendants in this lawsuit
– that is responsible for the construction and maintenance of the JPCC. (Id. at ¶ 9).
II. Summary Judgment Standard
Summary judgment is proper “if 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 a judgment
as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P.
56(c)). “Rule 56(c) mandates the entry of summary judgment, after adequate time for
discovery and upon motion, 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 the party
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will bear the burden of proof at trial.” Id. A party moving for summary judgment bears the
initial burden of demonstrating the basis for summary judgment and identifying those
portions of the record, discovery, and any affidavits supporting the conclusion that there is
no genuine issue of material fact. Id. at 323. If the moving party meets that burden, then the
nonmoving party must use evidence cognizable under Rule 56 to demonstrate the existence
of a genuine issue of material fact. Id. at 324.
A genuine issue of material fact exists if a reasonable jury could return a verdict for
the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
substantive law identifies which facts are material. Id. Material facts are not genuinely
disputed when a rational trier of fact could not find for the nonmoving party upon a review
of the record taken as a whole. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986); Equal Emp't Opportunity Comm'n v. Simbaki, Ltd., 767 F.3d 475, 481 (5th
Cir. 2014). “[U]nsubstantiated assertions,” “conclusory allegations,” and merely colorable
factual bases are insufficient to defeat a motion for summary judgment. See Anderson, 477
U.S. at 249-50; Hopper v. Frank, 16 F.3d 92, 97 (5th Cir. 1994). In ruling on a summary
judgment motion, a court may not resolve credibility issues or weigh evidence. See Delta &
Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).
Further, a court must assess the evidence, review the facts, and draw any appropriate
inferences based on the evidence in the light most favorable to the party opposing summary
judgment. See Tolan v. Cotton, 572 U.S. 650, 656 (2014); Daniels v. City of Arlington, 246 F.3d
500, 502 (5th Cir. 2001). Yet a court only draws reasonable inferences in favor of the
nonmovant “when there is an actual controversy, that is, when both parties have submitted
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evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)).
After the movant demonstrates the absence of a genuine dispute, the nonmovant
must articulate specific facts and point to supporting, competent evidence that may be
presented in a form admissible at trial. See Lynch Props., Inc. v. Potomac Ins. Co. of Ill., 140
F.3d 622, 625 (5th Cir. 1998); Fed. R. Civ. P. 56(c)(1)(A) & (c)(2). Such facts must create
more than “some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586.
When the nonmovant will bear the burden of proof at trial on the dispositive issue, the
moving party may simply point to insufficient admissible evidence to establish an essential
element of the nonmovant's claim in order to satisfy its summary judgment burden. See
Celotex, 477 U.S. at 322-25; Fed. R. Civ. P. 56(c)(B). Unless there is a genuine issue for trial
that could support a judgment in favor of the nonmovant, summary judgment must be
granted. See Little, 37 F.3d at 1075-76.
III. Law and Analysis
There are numerous reasons why Defendants should be granted summary judgment,
which are outlined below.
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A. Plaintiff Fails to Assert Specific Claims Against Individual Defendants
As an initial matter, Plaintiff does not allege any facts specific to any Defendant in
support of any of his claims. It is well established that “plaintiffs may not lump Defendants

2
Throughout this Order and Reasons, the Court will construe Plaintiff’s pro se Complaint and Amended
Complaint liberally. “A document filed pro se is ‘to be liberally construed,’ Estelle, 429 U.S., at 106, 97 S.Ct. 285,
and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers,’ ibid. (internal quotation marks omitted).” Erickson v. Pardus, 551 U.S. 89, 94,
127 S. Ct. 2197, 2200, 167 L. Ed. 2d 1081 (2007).
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together, without specifying separate factual allegations specific to each Defendant, as
‘referring to the Defendants collectively prevents the Court from drawing the inference that
[one individual Defendant] personally (or any other individual Defendant) acted with
subjective deliberate indifference.’” Mixon v. Pohlmann, Civ. A. No. 20-1216, 2021 WL
6072501, at *9 (E.D. La. Dec. 23, 2021). For this reason alone, the Court can render summary
judgment in favor of Defendants.
B. Plaintiff’s Dissatisfaction With his Classification Is Not a Complaint of
Constitutional Dimension

To the extent that Plaintiff alleges a claim that he was misclassified and housed
improperly in administrative segregation as opposed to general population due to his
gender, Plaintiff’s claim is not cognizable under the Constitution.
“Classification of inmates in Louisiana is a duty of the [jailer] and an inmate has no
right to a particular classification under state law.” Woods v. Edwards, 51 F.3d 577, 581-582
(5th Cir. 1995). "Inmates have no protectable property or liberty interest in custodial
classification. The classification of prisoners is a matter within the discretion of prison
officials. Absent an abuse of discretion, federal courts are loathe to interfere with custodial
classifications established by prison officials." Whitley v. Hunt, 158 F.3d 882, 889 (5th Cir.
1998) (citations omitted), abrogated on other grounds by Booth v. Churner, 532 U.S. 732, 735
(2001); accord Jones v. Roach, No. 05-60530, 2006 WL 2474746, at *1 (5th Cir. Aug. 28,
2006); Wilkerson v. Stalder, 329 F.3d 431, 436 (5th Cir. 2003). It is not sufficient for Plaintiff
to claim that he was not classified in the group of his choice. Custodial classification is not a
constitutional right.
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It is also uncontested in this case that Plaintiff was referred to administrative
segregation for his safety as well as the safe and orderly operation of the JPCC. (Rec. doc. 45-
19 at ¶ 6). Silbernagel was within his rights to make the classification decision he made and
this Court will not disturb it.
C. Plaintiff’s Failure-to-Protect Claim Also Fails
“[T]he State owes the same duty under the Due Process Clause and the Eighth
Amendment to provide both pretrial detainees and convicted inmates with basic human
needs, including . . . protection from harm, during their confinement.” Hare v. City of Corinth,
Miss., 74 F.3d 633, 650 (5th 1996). Thus, regardless of whether the inmate is a pretrial
detainee or a convicted prisoner, the standard of liability is the same for episodic acts or
omissions of jail officials that expose an inmate to being harmed by another inmate, such as
those alleged by Plaintiff in this case. Hamilton v. Lyons, 74 F.3d 99, 104 n.3 (5th Cir. 1996);
Hare, 74 F.3d at 650.
In this case, what is at issue is Plaintiff’s Constitutional right to be protected from
violence at the hands of another inmate. See Leal v. Wiles, 734 F. App'x 905, 909 (5th Cir.
2018) (citing Farmer v. Brennan, 511 U.S. 825, 833-34 (1994)) (discussing the prison
officials' duty to protect inmates and detainees); Hare, 74 F.3d at 650. To state a Section
1983 failure-to-protect claim, Plaintiff must allege 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) (quoting Newton v. Black, 133 F.3d 301, 308 (5th Cir. 1998)). To satisfy the
deliberate indifference element, a plaintiff must allege that the defendants “(1) were aware
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of facts from which an inference of an excessive risk to the prisoner's health or safety could
be drawn and (2) that they actually drew an inference that such potential for harm existed.”
Rogers v. Boatright, 709 F.3d 403, 407-08 (5th Cir. 2013). Thus, Plaintiff must allege that the
official not only knew of and disregarded an excessive risk to inmate health or safety but that
he also drew that inference. Farmer, 511 U.S. at 837. The risk of assault cannot be just any
risk but must be “excessive.” Brewster v. Dretke, 587 F.3d 764, 770 (5th Cir. 2009). This is
because “[p]rison officials are not . . . expected to prevent all inmate-on-inmate violence.”
Adames v. Perez, 331 F.3d 508, 512 (5th Cir. 2003).
An inmate pursuing a claim for failure to protect may prove it by showing that the
defendants knew of a specific threat to him but failed to take measures to protect him from
it. Farmer, 511 U.S. at 843. In the absence of a specific threat, an inmate may prove a claim
of failure to protect if he can show that he was placed in a prison environment “where terror
reigns.” Jones v. Diamond, 636 F.2d 1364 (5th Cir. 1981), overruled on other grounds by Int’l
Woodworkers of Am., AFL-CIO and its Local No. 5-376 v. Champion Intern. Carp., 790 F.2d 1174
(5th Cir. 1986). This situation arises in a jail or prison where officials allow “a pervasive risk
of harm” and “fail[ ] to take reasonable steps to prevent the known risk.” Stokes v. Delcambre,
710 F.2d 1120 (5th Cir. 1983) (finding liability when the sheriff housed college students
arrested on a non-violent misdemeanor charge with a dozen inmates charged with violent
felonies – leading to the students' severe beating and rape). “[I]t does not matter whether
the risk comes from a single source or multiple sources, any more than it matters whether a
prisoner faces excessive risk of attack for reasons personal to him or because all prisoners
in his situation face such a risk.” Farmer, 511 U.S. at 843. Negligence, however, on the part
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of the prison officials does not rise to the level of a Section 1983 claim for deliberate
indifference; nor does an official's failure to alleviate a significant risk that he should have
perceived, but did not. See Thompson v. Upshur Cnty., Tex., 245 F.3d 447, 459 (5th Cir. 2001);
Domino v. Tex. Dep't of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001); Jynes v. Orleans Par.
Sheriff's Off., No. CV 25-1062, 2026 WL 790897, at *7-8 (E.D. La. Jan. 7, 2026), report and
recommendation adopted, No. CV 25-1062, 2026 WL 194103 (E.D. La. Jan. 26, 2026)
In this lawsuit, the Court finds that Plaintiff has failed to meet this stringent burden
of proof. There are no facts pleaded, nor any evidence adduced, from which the Court could
draw an inference that any Defendant was aware of and deliberately disregarded a
substantial risk of serious harm. The opposite is true. Plaintiff was referred to administrative
segregation to specifically protect him from potential harm. (Rec. doc. 45-19 at ¶ 6). In fact,
in both instances in which Plaintiff complained about harassment by another inmate, JPCC
immediately investigated Plaintiff’s claims and charged the perpetrator with simple battery.
As outlined above, on January 2, 2025, Yakaba Williams was notified that a battery had been
committed in Pod 4DR. (Rec. doc. 45-17). Deputy James Mauk notified Central Control that
Lynn Payne reported that inmate Isaac Williams threw urine on him from the toilet into his
cell. (Id.). Surveillance video was reviewed and showed Williams throwing liquid from his
toilet into Payne’s cell, more than four times. (Id.). Payne advised that he wished to pursue
criminal charges against Williams, and Williams was charged with Section14:35, Simple
Battery. (Id.).
And then, on January 14, 2025, Deputy Hewitt received a call from Deputy Alexander
Godinez, who stated that an inmate on 4D was throwing feces on another inmate (Plaintiff).
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(Rec. doc. 45-18). Deputy Hewitt arrived on scene and located brown liquid substances on
the floor in front of Cell 5 and on the wall inside. (Id.). Officer Godinez informed Hewitt that
while out on his one-hour shower, inmate Isaac Williams was seen by officer Godinez
throwing feces into the cell of Inmate Payne. (Id.). Video surveillance captured the incident.
(Id.). Payne wished to pursue charges and Williams was charged with Section 14:35, simple
battery. (Id.). The officers responded appropriately to Plaintiff’s concerns and charged
William with a state crime. That is far from deliberate indifference. Moreover, there is no
allegation that Plaintiff suffered any injury due to these two incidents. Absent a “physical
injury resulting from the prison officials' purported failure to protect,” a failure to protect
claim fails. Jones v. Greninger, 188 F.3d 322, 326 (5th Cir. 1999); see Jynes, 2026 WL 790897,
at *10. Plaintiff’s failure-to-protect claim must fail.
D. Plaintiff’s Equal Protection Claim
It also appears that Plaintiff asserts a claim under the Equal Protection Clause because
he is transgender. The Equal Protection Clause of the Fourteenth Amendment “commands
that no State shall deny to any person within its jurisdiction the equal protection of the laws,
which is essentially a direction that all persons similarly situated should be treated alike.”
Duarte v. City of Lewisville, Tex., 858 F.3d 348, 353 (5th Cir. 2017) (internal quotation marks
and citations omitted); Wood v. Collier, 836 F.3d 534, 538 (5th Cir. 2016).
To establish an equal protection claim, a plaintiff must first demonstrate that “two or
more classifications of similarly situated persons were treated differently.” Duarte, 858 F.3d
at 353 (internal quotation marks and citations omitted). If a suspect class (such as race or
religion) or a fundamental right is implicated, the courts apply “strict scrutiny.” Id. at 353-
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54. If not, the courts apply “rational basis review” and will uphold the classification if it bears
a “rational relation to a legitimate governmental purpose.” Id. at 354. To establish a violation
of the Equal Protection Clause, a plaintiff also must prove “purposeful discrimination
resulting in a discriminatory effect among persons similarly situated.” Butts v. Martin, 877
F.3d 571, 590 (5th Cir. 2017) (internal quotation marks and citation omitted); Baranowski v.
Hart, 486 F.3d 112, 123 (5th Cir. 2007). The Equal Protection Clause “does not require that
all persons be dealt with identically, but it does require that a distinction made have some
relevance to the purpose for which the classification is made.” Wood, 836 F.3d 538-39
(internal quotation marks and citation omitted).
Plaintiff's allegations fail to state a violation of the Equal Protection Clause. Plaintiff
fails to provide specific allegations to indicate that JPCC officials subjected him to disparate
and less favorable treatment due to his LGBTQ status, including his gender identity. See Song
v. Unknown Medical Admin., No. SA-22-CV-01144-XR, 2023 WL 2386892, at *2 (W.D. Tex.
Mar. 6, 2023) (holding that detainee's general allegations that he was subjected to different
treatment based on his LGBTQ status fail to indicate how he was treated differently or
otherwise show disparate treatment); Solis, 2021 WL 3434991, at *7 (holding that “the Court
need not consider . . . for purposes of screening” conclusory allegations of discrimination
based on inmate's transgender status). Plaintiff otherwise fails to show that he was the
victim of intentional and purposeful discrimination due to his LGBTQ or gender status. Song,
2023 WL 2386892, at *4. Conclusory allegations do not satisfy Plaintiff’s burden here.
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Because the Court dismissed any potential federal claims on the aforementioned grounds, it need not reach
Defendants’ additional argument that they are entitled to qualified immunity.
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E. State-Law Claims
While it is unclear from both the Original and Amended Complaints, Plaintiff may also
seek to assert similar claims under state law. To the extent that he does, the Court will
address them below.
Under Louisiana law, “[a] penal institution is not an insurer of an inmate against
attacks by other inmates. The standard is that of reasonable or ordinary care.” See Parker v.
State, 282 So. 2d 483, 486 (La. 1973); Williams v. State Through Dep’t of Corr., 351 So. 2d
1273, 1273-74 (La. Ct. App. 1977)). More specifically, “in order to hold the penal authorities
liable for an injury inflicted upon an inmate by another inmate, the authorities must know or
have reason to anticipate that harm will ensue and fail to use reasonable care in preventing
the harm.” Williams, 351 So. 2d at 1274. As the Louisiana Supreme Court has held, “we must
determine whether the penal authorities . . . had reasonable cause to anticipate harm to
plaintiff and, if so, whether they failed to use reasonable care in preventing such harm.” State
ex rel. Jackson v. Phelps, 672 So. 2d 665, 667 (La. 1996).
This standard is not met when the defendant was not aware of a risk threatening the
plaintiff or someone closely associated with the plaintiff. For example, in State ex rel. Jackson
v. Phelps, the Louisiana Supreme Court held that the defendants were not liable for the
plaintiff’s injuries because they “had no reasonable cause to anticipate harm to plaintiff.” 672
So. 2d 665, 667 (La. 1996). In that case, the plaintiff was attacked unexpectedly by a fellow
inmate. Id. at 667. The court noted that the attack occurred without warning to the plaintiff
or to prison officials, that the plaintiff never notified the institution that he was afraid of
being attacked by his assailant, and that the evidence indicated that no one expected any
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hostility between the two inmates. Id.; see also Williams, 351 So. 2d at 1273 (holding that
prison was not negligent when officials “had no forewarning of any danger to the plaintiff,
and no one anticipated or foresaw any difficulty between the plaintiff” and his assailant).
Here, the record reflects that no JPCC official knew of a specific risk of harm to Plaintiff other
than Plaintiff’s reports, which were addressed immediately and appropriately. (Rec. docs.
45-17, 45-18). Plaintiff never notified Defendants in advance that he feared that Williams
might throw feces or urine into his cell. There was simply no forewarning. Plaintiff’s state-
law claims fare no better than his federal claims.
F. Plaintiff’s Opposition
Plaintiff’s general overarching complaint in his opposition is that there are still
genuine issues of disputed fact in this lawsuit. This Court finds that that is not the case. When
the moving party has carried its burden under Rule 56(c), its opponent must do more than
simply show that there is some metaphysical doubt as to the material facts. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing DeLuca v. Atl. Refining
Co., 176 F.2d 421, 423 (2d Cir. 1949)). In the language of the Rule, the nonmoving party must
come forward with “specific facts showing that there is a genuine issue for trial.” Fed. R. Civ.
P. 56(e) (emphasis added).
Unsubstantiated assertions are not competent summary judgment evidence. Forsyth
v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986)). “Summary judgment, to be sure, may be appropriate, even in cases where elusive
concepts such as motive or intent are at issue, . . . if the nonmoving party rests merely upon
conclusory allegations, improbable inferences, and unsupported speculation.” Krim v.
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BancTexas Group, Inc., 989 F.2d 1435, 1449 (5th Cir. 1993). A nonmoving party “cannot
defeat summary judgment with conclusory allegations, unsubstantiated assertions, or ‘only
a scintilla of evidence.’” Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (citing Turner
v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (additional citation
omitted)).
Plaintiff presents this Court with no evidence to support his claims. He only maintains
that there remain disputed issues of fact. Moreover, the Court finds that the facts that
Plaintiff believes are disputed are not so. Plaintiff states that one of the disputed facts is
whether correctional officials had actual knowledge of repeated feces and urine assaults. In
his Complaint and Amended Complaint, Plaintiff complains of only two such incidents, both
of which were viewed by correctional officers over the surveillance video, to both of which
the correctional officers acted efficiently and appropriately, and both of which resulted in a
charge of simple battery to the offending inmate. (Rec. docs. 45-17, 45-18). Plaintiff
complains of no other incident and provides this Court with no evidence to contradict
Defendants’ evidence. As another example, Plaintiff maintains that a disputed fact exists as
to whether officials failed to take reasonable measures to protect Plaintiff. But the same two
documents cited above prove otherwise. (Id.). And, as noted above, there is no allegation –
indeed, no evidence – that Plaintiff forewarned Defendants of any imminent attack by a
fellow inmate. Plaintiff’s complaints are no more than conclusory allegations, improbable
inferences, and unsupported speculation that cannot defeat Defendants’ motion for
summary judgment.

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G. Plaintiff’s Miscellaneous Motions
Also before the Court is the Motion for Appointment of Counsel (rec. doc. 50) and the
Motion to Stay Consideration of Defendants’ Motion for Summary Judgment, or Alternatively
for Relief Under Rule 56(d), Extension of Time, and Reconsideration of Appointment of
Counsel (rec. doc. 51), both of which were filed by Plaintiff.
4

As to the Motion to Defer, pursuant to Rule 56(d), if a party served with a motion for
summary judgment shows, by affidavit or declaration, that, for specified reasons, it cannot
present facts essential to justify its opposition, the court may (1) defer considering the
motion or deny it, (2) allow the non-moving party time to obtain affidavits or declarations
or to take discovery, or (3) issue any other appropriate order. Fed. R. Civ. P. 56(d). To obtain
the protections afforded by Rule 56(d), the party must state specific reasons why it is unable,
without discovery, to present facts necessary to oppose the motion for summary judgment.
Id.
In response to Defendants’ motion for summary judgment, Plaintiff argues that he had
requested surveillance footage and reports but appears to imply that he never received
them. The Court finds that that is not the case. Indeed, on March 4, 2026, Plaintiff was
provided with a copy of both the police reports in question for the incidents of which Plaintiff
complains. (Rec. doc. 49-1).
Further, on March 27, 2026, a Dropbox link containing the relevant video footage was
sent to Plaintiff via the Warden’s Office at Dixon Correctional Institute. (Rec. doc. 49-2). On

4
Plaintiff also filed a second opposition to the motion for summary judgment (rec. doc. 52) – far beyond the
deadline to do so. While the Court – giving Plaintiff the benefit of the doubt – reviewed the opposition, it does
not change the Court’s conclusion that summary judgment is warranted here.
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Monday April 13, 2026, Molly Maxwell with the Office of the Warden at Dixon Correctional
Institute confirmed via email that Plaintiff had viewed the video and was asking if the videos
had been provided to the clerk’s office. (Rec. doc. 49-3).
Moreover, Plaintiff has never served Defendants with formal discovery and does not
allege that he has. Yet Defendants provided the video and the reports. Plaintiff was provided
with all the records attached to Defendants’ motion for summary judgment, which included
classification records, the only grievance filed during his period of incarceration, and all
appeal board decisions. Plaintiff’s motion is unwarranted and fails.
As to the motion to appoint counsel – and subsequent motion to reconsider that
appointment of counsel
5
– the Court recognizes that its power to “appoint counsel” is derived
from 28 U.S.C. § 1915(e)(1), which provides that the “court may request an attorney to
represent any person unable to afford counsel.” Plaintiff has neither a constitutional nor an
automatic right to appointed counsel in a civil case. See Caston v. Sears, Roebuck & Co., 556
F.2d 1305, 1309 (5th Cir. 1977). Unlike a criminal defendant, an indigent civil rights litigant,
even if currently incarcerated, does not have a right to appointed counsel absent
“exceptional circumstances.” See Norton v. E.U. Dimazana, 122 F.3d 286, 293 (5th Cir. 1997);
Akasike v. Fitzpatrick, 26 F.3d 510, 512 (5th Cir. 1994); Vitug v. Merit Sys. Protection Bd., Civ.
A. No. 01-3297, 2002 WL 1216023 (E.D. La. June 4, 2002). Indeed, the federal court has
considerable discretion in determining whether to make such an appointment in a civil case.
See Salmon v. Corpus Christi Indep. School Dist., 911 F.2d 1165, 1166 (5th Cir. 1990). The

5
The Court cannot find evidence on the docket sheet that Plaintiff has ever sought counsel before the instant
pleading.
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Court has discretion to appoint counsel in such a case if doing so would advance the proper
administration of justice. See Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982);
Salmon, 911 F.2d at 1166. The plaintiff bears the burden of persuasion as to the necessity of
such an appointment. See Caston, 556 F.2d at 1310.
The evidence which must be adduced includes
(1) plaintiff's indigence and
(2) efforts made to secure counsel.
However, these are bare minimum threshold considerations. Additionally, the Court
should consider the following factors:
(a) the type and complexity of the case;
(b) whether the indigent is capable of presenting his case adequately;
(c) whether he is in a position to investigate his case adequately; and
(d) whether the evidence will consist in large part of conflicting testimony
so as to require skill in the presentation of evidence and in cross-
examination.

Parker v. Carpenter, 978 F.2d 190, 193 (5th Cir. 1992); Ulmer, 691 F.2d at 213. The Court
also considers whether appointment of counsel would be of service to the court and the
defendant by sharpening the issues in the case. Id.
Having reviewed the pleadings related to the motion for summary judgment, this
Court has concluded that summary judgment should be granted to Defendants. Plaintiff has
demonstrated that he was able to enunciate the facts underlying his Section 1983 claim, and
the Court does not find that counsel would be of assistance to it at this stage of the
proceedings. Plaintiff has received discovery from Defendants – despite never formally
propounding discovery on them – and the Court does not find that an attorney would be able
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to uncover any more discovery to further Plaintiff’s claims. There are no exceptional
circumstances here, and any appointment of counsel now is unwarranted.

IV. Conclusion
For the foregoing reasons,
IT IS ORDERED that the Motion for Summary Judgment Pursuant to F.R.C.P. 56 filed
by Defendants Sheriff Joseph P. Lopinto, III, Deputy Chief Sue Ellen Monfra, Jefferson Parish
Sheriff’s Office (“JPSO”) Sergeant Christian Silbernagel, JPSO Captain Bryan Bordelon, JPSO
Major Edward Olsen, and JPSO Lieutenant Chris Morris is GRANTED, and Plaintiff’s claims
against Defendants are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Motion for Appointment of Counsel (rec. doc. 50) and
the Motion to Stay Consideration of Defendants’ Motion for Summary Judgment, or
Alternatively for Relief Under Rule 56(d), Extension of Time, and Reconsideration of
Appointment of Counsel (rec. doc. 51) are DENIED.
New Orleans, Louisiana, this _______ day of______________________, 2026.

__________________________________________
MICHAEL B. NORTH
UNITED STATES MAGISTRATE JUDGE
5th
August
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