MARK E. FULLER, District Judge.
This cause is again before the Court on Defendant's Renewed Motion to Dismiss, or in the Alternative, for Summary Judgment (Doc. #75), the Recommendation of the Magistrate Judge (Doc. #92), and Defendant's Objection to the Recommendation (Doc. #100).
Federal inmate Charles Gwathney ("Gwathney") filed this Bivens action
The defendants filed a Special Report (Doc. #20), which the United States Magistrate Judge construed as a motion for summary judgment. On August 31, 2011, the Magistrate Judge recommended the dismissal of all claims except the excessive force claim against Warren in his individual capacity. (See Recommendation of the Magistrate Judge, Doc. #37, 2011 WL 4396929.) Overruling Warren's objections, the Court adopted the Magistrate Judge's Report and Recommendation on September 21, 2011. (Doc. #44, 2011 WL 4390044.)
After the Court set this case for trial to begin on February 25, 2012 (Scheduling Order, Doc. #65), Warren filed a motion for leave to take Gwathney's deposition. The Court granted this motion, and Warren's counsel deposed Gwathney on April 18, 2012. On June 29, 2012, Warren filed a Renewed Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (Doc. #75), based on new evidence obtained during Gwathney's April 18, 2012 deposition. On January 8, 2013, the Magistrate Judge again recommended that Warren's motion for summary judgment be denied and that this case proceed to trial. (Doc. #92.) With the trial date quickly approaching, the Court ordered that the trial be continued to give the Court adequate time to review the merits of Warren's renewed motion, the Magistrate Judge's recommendation, Warren's objection, and Gwathney's response to the objection. (Doc. #101.)
Jurisdiction over this action is proper under 28 U.S.C. § 1331 (federal question). The parties do not contest personal jurisdiction or venue, and the Court finds adequate allegations in support of both.
On Friday, May 16, 2008, Gwathney underwent surgery on his right shoulder to repair his rotator cuff. On Monday, May 19, 2008, between 1:15 and 1:30 p.m., Warren entered Gwathney's wing announcing that they were "going to shake [it] down," which Gwathney understood to mean that they were going to conduct a search of the wing. When Warren entered Gwathney's cubicle, Warren observed Gwathney rise from his bunk and turn his back towards Warren, and Warren then appeared to be placing his hand down the front of his pants. (Warren Decl. ¶ 3, Doc. #75-3.)
According to Gwathney, Warren began the pat-down by "hit[ting]" or "slamm[ing] his hands on [Gwathney's] shoulders, which immediately brought [Gwathney] to his knees due to horrific pain." (Doc. #1, ¶ 6; Gwathney Dep., Doc. #75-2, 152:6-8; 159:11-20.)
Physician Assistant Aaron McNeil ("PA McNeil") evaluated Gwathney immediately after the pat-down search and determined that Gwathney's shoulder pain was "secondary to recovery from recent right shoulder rotator cuff repair" and that it was "possib[ly] mildly aggravated by [the] pat search." (Doc. #1-2.) PA McNeil injected Gwathney with Toradol, a non-narcotic pain reliever, to relieve his pain. (Doc. #1-2.)
A motion for summary judgment looks to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A court should grant summary judgment when the pleadings and supporting materials show that no genuine dispute exists as to any material fact and that the moving party deserves judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying" the relevant documents that "it believes demonstrate the absence of a genuine [dispute] of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To shoulder this burden, the moving party can present evidence to this effect. Id. at 322-23, 106 S.Ct. 2548. Or it can show that the non-moving party has failed to present evidence in support of some element of its case on which it ultimately bears the burden of proof. Id.
If the moving party meets its burden, the non-movant must then designate, by affidavits, depositions, admissions, or answers to interrogatories, specific facts showing the existence of a genuine issue for trial. Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir.1995). A genuine dispute of material fact exists when the non-moving party produces evidence that would allow a reasonable fact-finder to return a verdict in his or her favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001). Thus, summary judgment requires the non-moving party to "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. Indeed, a plaintiff must present evidence demonstrating that he can establish the basic elements of his claim, Celotex, 477 U.S. at 322, 106 S.Ct. 2548, because "conclusory allegations without specific supporting facts have no probative value" at the summary judgment stage. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir.1985).
A court ruling on a motion for summary judgment must believe the non-movant's evidence. Anderson, 477 U.S. at 255, 106 S.Ct. 2505.
Warren invokes the doctrine of qualified immunity to shield him from Gwathney's individual capacity excessive force claim. Qualified immunity protects government officials from the chilling effect that the fear of personal liability would create in carrying out their discretionary duties. See Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). To this end, it immunizes from suit "all but the plainly incompetent or one who is knowingly violating the federal law." Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.2002) (quoting Willingham v. Loughnan, 261 F.3d 1178, 1187 (11th Cir.2001)).
However, in the Eleventh Circuit, a defense of qualified immunity is not available in cases alleging excessive force in violation of the Eighth Amendment, because the use of force "maliciously and sadistically to cause harm" is clearly established to be a violation of the Constitution by the Supreme Court's decisions in Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992), and Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). See Skrtich v. Thornton, 280 F.3d 1295, 1301 (11th Cir.2002). Thus, the only inquiry this Court must make is whether Gwathney has presented sufficient evidence to survive summary judgment on his Eighth Amendment claim. See id.; Dobbins v. Giles, 451 Fed.Appx. 849, 851 (11th Cir.2012) ("[W]hen a plaintiff making an excessive force claim has alleged facts sufficient to survive a motion to dismiss or a motion for summary judgment... he has necessarily established the two prongs required to defeat a defense of qualified immunity." (internal quotation omitted)).
The Eighth Amendment's ban on cruel and unusual punishments governs correctional officers' use of force against prison inmates. Whitley, 475 U.S. at 327, 106 S.Ct. 1078 (1986). Gwathney's excessive force claim against Officer Warren must be analyzed under the standard set forth by the United States Supreme Court in Whitley, 475 U.S. 312, 106 S.Ct. 1078 (1986), and Hudson, 503 U.S. 1, 112 S.Ct. 995 (1992).
With this concern in mind, the Supreme Court set forth a list of factors that should be considered when evaluating whether the force used was excessive and in violation of the Eighth Amendment. Those factors are: (1) "the extent of the injury";
Applying the foregoing legal standard and factors to the facts of this case, the Court concludes that the evidence simply does not support the reasonable inference that Warren maliciously or sadistically inflicted pain on Gwathney while conducting the pat-down search. Even taking the facts Gwathney has alleged in the light most favorable to him, as the Court must, the Court finds that Gwathney has presented no substantial evidence that Warren conducted the pat-down search in a malicious or sadistic manner for the purpose of causing harm, rather than for the purpose of maintaining discipline and institutional security. See Hudson, 503 U.S. at 7, 112 S.Ct. 995 ("[P]rison administrators ... should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.") (emphasis added).
It is undisputed that, when Warren entered Gwathney's cubicle, he observed Gwathney rise from his bunk, turn, and place his hand down the front of his pants, a movement that typically signals an inmate is trying to conceal an object. It is further undisputed that Gwathney was facing away from Warren when Warren began the pat-down and thus, Gwathney could not observe any expression or movement that would suggest Warren had any malicious motive in touching his shoulders. Indeed, Gwathney testified that he did not know whether Warren's hands were in a fist or how Warren manipulated his hands after he started touching Gwathney's shoulders, because Gwathney immediately went to the ground in pain. (Doc. #75-2, 157:14-158:16.)
Gwathney presents only two pieces of evidence that would remotely support the assertion that Warren acted maliciously and sadistically in applying pressure to Gwathney's right shoulder during the pat-down search. The first is Gwathney's characterization of the extent of Warren's force as Warren "slamming" his hands down on Gwathney's shoulders after
The second piece of evidence Gwathney offers to demonstrate Warren's malicious or sadistic intent in conducting the pat-down search is Warren's statement to Gwathney, "[o]h, you still can't raise your arm" immediately after Gwathney fell to his knees. However, the Court finds that nothing in this statement indicates Warren was acting with malice for the sole purpose of inflicting pain on Warren. This statement demonstrates nothing about Warren's intent as he was conducting the pat-down search; it supports only the inference that Warren still did not believe Gwathney's assertion about his recent shoulder surgery given Gwathney's movements and actions when Warren entered the cubicle. Indeed, when Warren saw the post-surgery bandage on Gwathney's shoulder as Gwathney was removing his undershirt during the strip search, Warren tempered the amount of force he had been using up to that point by advising Gwathney that he did not have to continue the strip search. Taking the facts in the light most favorable to Plaintiff, the Court concludes that Gwathney has not presented sufficient evidence of Warren's malicious or sadistic intent for his Eighth Amendment excessive force claim to survive summary judgment.
After an independent review of the file, including the excerpts from the April 18, 2012 deposition of Plaintiff to which Defendant has directed the Court, and careful consideration of Defendant's objection, Plaintiff's response, the applicable law, and the record as a whole, it is hereby ORDERED that:
1. The Objection to the Recommendation (Doc. #100), filed by Defendant on January 22, 2013, is SUSTAINED;
2. The Recommendation of the Magistrate Judge (Doc. #92) is REJECTED; and
3. Defendant's renewed Motion to Dismiss, or in the Alternative, for Summary Judgment (Doc. #75) is GRANTED.
A final judgment in this case is forthcoming.