CHARLES H. WEIGLE, Magistrate Judge.
Before the Court are cross motions for summary judgment filed by Plaintiff James A. Costlow (Doc. 74), and Defendant Corey Lockett (Doc. 62). Based on the analysis below, it is
Plaintiff James A. Costlow, a prisoner, alleges that Defendant Corey Lockett, a corrections officer, failed to protect Plaintiff from harm at the hands of another prisoner named Donald McCrimmon. By Plaintiff's account, Defendant Lockett allowed McCrimmon to serve as a prisoner-orderly, responsible for delivering meals to prisoners in the H-1 dormitory of Macon State Prison, where Plaintiff was then housed. McCrimmon served meals by sliding food trays through "tray flaps," or small openings in the doors to individual cells. When McCrimmon served Plaintiff, an altercation ensued. During this altercation, Plaintiff wedged his elbow through the tray flap toward McCrimmon, and McCrimmon responded by repeatedly slamming the tray flap down onto Plaintiff's elbow, resulting in contusions that required stitches. Plaintiff contends that Defendant Lockett was deliberately indifferent to the risk posed by McCrimmon, and that his deliberate indifference amounted to cruel and unusual punishment in violation of the Eighth Amendment.
Plaintiff filed a second complaint (Doc. 57) over three months after the Defendant filed his Answer (Doc. 42), and around ten months after the Defendant filed his Motion to Dismiss (Doc. 26). Plaintiff did not move for leave to file this second complaint, and Plaintiff does not satisfy the conditions for amendment as a matter of course under Rule 15 of the Federal Rules of Civil Procedure. Because Plaintiff filed no motion, the Defendant filed no response. As Plaintiff is proceeding pro se, however, the Court is bound to liberally construe Plaintiff's filing. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Therefore, it is
In his second or amended complaint, Plaintiff does not seek to assert any new claims. Furthermore, while Plaintiff's amended complaint provides a more detailed description of the events leading up to the prisoner-on-prisoner attack that is the subject of this action, Plaintiff's new factual allegations are duplicative of information now available elsewhere in the record, and in particular, from Plaintiff's deposition.
The most significant change Plaintiff seeks to work by his amended complaint is to broaden the type of relief he requests. In addition to the damages he originally sought (Doc. 1, p. 6), Plaintiff now also asks for an injunction ordering his transfer to a different facility, as well as a declaration that his rights were violated. (Doc. 57, p. 8). Plaintiff's request for an injunction appears to have nothing to do with the harm at issue in this action. Plaintiff asks for an order requiring his transfer due to "continuous harassment, threats, & actions [taken] against Plaintiff such as illegal search & seizure of legal material thus violating Plaintiff's 4th Amendment." (Id.). These allegations are unrelated to the Eighth Amendment failure-to-protect claim at issue here, and they are therefore properly asserted in a separate action. More importantly, because Plaintiff is no longer housed at Macon State Prison where the alleged prisoner-on-prisoner attack occurred, but rather is now housed at Smith State Prison, Plaintiff's requests for injunctive and declaratory relief are moot. Wahl v. McIver, 773 F.2d 1169, 1173-74 (11th Cir. 1985) ("an inmate's claim for injunctive and declaratory relief in a section 1983 action fails to present a case or controversy once the inmate has been transferred").
Given Plaintiff's delay in filing, his failure to raise any new claims or allege any new, non-duplicative facts, and given that Plaintiff is not entitled to the new relief he requests, Plaintiff's motion for leave to file an amended complaint is denied. See Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (listing undue delay and futility as grounds for declining to grant leave to amend).
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The party moving for summary judgment bears the burden of informing the Court of the basis for its motion, and of citing "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," that support summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). In resolving motions for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor").
Plaintiff moves for summary judgment based not on the merits of his claim, but rather as a sanction for the Defendant's refusal to comply with this Court's October 17, 2017 Order compelling the Defendant to produce "Standard Operating Procedures related to the feeding of inmates in administrative segregation or protective custody." (Doc. 73, pp. 2-3; Doc. 74). Plaintiff asserts that he was housed in protective custody at the time of McCrimmon's attack due to gang-related threats, (Doc. 62-3, p. 18), and Plaintiff alleges that the "SOPs" would have demonstrated that Plaintiff "was not supposed to come into contact [with] any other inmates." (Doc. 76, p. 3). The Defendant acknowledges his inadvertent failure to give these documents to Plaintiff within the time provided by the Court, but the Defendant affirms to the Court that he has since turned the documents over. (Doc. 75, pp. 1-2). The record indicates that Plaintiff did not have access to these documents when drafting his Response to the Defendant's pending Motion for Summary Judgment. (Doc. 76, pp. 2-3).
Rule 37(b) of the Federal Rules of Civil Procedure provides courts with ample discretion to enforce discovery orders, and Rule 37(b)(2)(A), in particular, lists the following as possible sanctions for a party's failure to comply:
Rule 37 does not contemplate the sanction of default summary judgment for discovery abuses, and Eleventh Circuit precedent suggests that a default summary judgment is not an appropriate sanction because summary judgment should be granted only when there is no genuine dispute as to any material fact, and when the movant is entitled to judgment as a matter of law. See, e.g., Trs. of Central Pension Fund for Int'l Union of Operating Eng'rs and Participating Emp'rs v. Wolf Crane Serv., Inc., 374 F.3d 1035, 10039-40 (11th Cir. 2004). In other words, summary judgment is appropriate only when the requirements of Rule 56 are satisfied. Insofar as Plaintiff moves for a default summary judgment without regard to Rule 56's requirements, Plaintiff's motion is without merit.
Plaintiff's request for summary judgment might instead be construed as a motion for default judgment, a sanction expressly contemplated by Rule 37. See, e.g., Perez v. Wells Fargo N.A., 774 F.3d 1329 (11th Cir. 2014) (construing a motion for judgment on the pleadings as a motion for entry of default judgment). Eleventh Circuit precedent, however, makes clear that the severe sanction of a default judgment "requires a willful or bad faith failure to obey a discovery order." Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1542 (11th Cir. 1993). The requisite bad faith is not present in this case, so Plaintiff is not entitled to a default judgment.
Rather, the lesser sanction of acceptance of Plaintiff's facts appears to be a more appropriate remedy. See, e.g., BankAtlantic v. Blythe Eastman Paine Webber, Inc., 12 F.3d 1045, 1049 (11th Cir. 1994) ("A court may impose lesser sanctions without a showing of willfulness or bad faith"). This sanction is all the more appropriate because Plaintiff did not have access to the requested SOPs while crafting his Response to the Defendant's Motion for Summary Judgment.
Accordingly purposes of resolving the pending motions for summary judgment, it is presumed that the SOPs requested by Plaintiff would have shown that Plaintiff "was not supposed to come into contact [with] any other inmates," including prisoner-orderlies such as McCrimmon. (Doc. 76, p. 3).
Even in light of this presumption, however, Plaintiff is not entitled to summary judgment. A violation of a Georgia penal policy does not itself, in this context, rise to the level of a Constitutional violation. Therefore, even if Defendant Lockett violated Standard Operating Procedures by allowing McCrimmon to come into contact with Plaintiff, the Defendant's SOP violation is not dispositive of Plaintiff's claim. The SOP violation is perhaps relevant to one element of Plaintiff's claim, the element of deliberate indifference, and for that reason, the Court previously allowed Plaintiff to make related discovery requests. But Defendant Lockett's SOP violation is not dispositive even of the deliberate-indifference element, much less the other elements of Plaintiff claim, elements which Plaintiff did not address in his Motion. Accordingly, and to the extent Plaintiff sought to obtain a genuine summary judgment based on the requirements of Rule 56, Plaintiff's Motion should be denied.
To survive summary judgment on his failure-to-protect claim, Plaintiff must "produce sufficient evidence of (1) a substantial risk of serious harm; (2) the defendant['s] deliberate indifference to that risk; and (3) causation." Purcell ex rel. Estate of Morgan v. Toombs Cty., Ga., 400 F.3d 1313, 1319-20 (11th Cir. 2005). Because the record establishes that Plaintiff was not exposed to a substantial risk of serious harm, the Defendant's Motion for Summary Judgment should be granted. Alternatively, and for the same reason, the Defendant is entitled to qualified immunity.
The record, when construed in the light most favorable to Plaintiff, establishes the following facts. On April 4, 2015, Plaintiff was held in protective custody or administrative segregation in Macon State Prison based on "threats from gang members saying they had a hit out on me." (Doc. 62-2, p. 2; Doc. 62-3, p. 17). Plaintiff was housed alone in cell number H-216, which by Plaintiff's account measured around 8 feet wide by 14 feet long. (Doc. 62-3, p. 16). The door to Plaintiff's cell consisted of a solid plane of metal, with at least one covered portal: a "tray flap" just large enough to permit the delivery of meals. See (Doc. 62-3, pp. 45-47).
Early in the morning of April 4, while Defendant was patrolling the H-1 dormitory, Plaintiff alleges that he expressed his concern to the Defendant regarding another prisoner, Donald McCrimmon (Doc. 76-7, p. 1), who regularly acted as an orderly by delivering meals to prisoners, including Plaintiff. (Doc. 62-3, pp. 18, 22). Plaintiff specifically stated the following at his deposition:
(Doc. 62-3, p. 22)
Plaintiff asserts that, prior to April 4, he alerted the Defendant to the risk posed by McCrimmon on at least one occasion, on March 30, 2015, and that he told Defendant he was "concerned if something happened to my food, him playing with my food and me accidentally swallowing some razor blades, [because] that had happened prior." (Doc. 62-3, pp. 19-22). Plaintiff further asserts that McCrimmon had previously threatened Plaintiff by "saying that he was going to get me, taunting me, letting me know that I had a hit out on my head and money was on my head, up for grabs for anybody to take," (Doc. 62-3, p. 18), but it is not clear that Plaintiff reported these threats to the Defendant.
Notwithstanding Plaintiff's objections, Defendant Lockett allowed McCrimmon to serve as a prisoner-orderly and to deliver a meal to Plaintiff on April 4, resulting in an altercation which Plaintiff describes as follows:
(Doc. 62-3, pp. 23-26)
By Plaintiff's account, only his elbow projected out of the tray flap. (Doc. 62-3, p. 26). McCrimmon slammed the tray flap down onto Plaintiff's arm "about five or six times," causing cuts that required stitches. (Doc. 62-3, pp. 26-28). By Plaintiff's estimation, Defendant Lockett arrived on the scene approximately seven minutes later. (Doc. 62-3, p. 27).
Defendant makes two arguments in favor of summary judgment, and also raises the defense of qualified immunity. The Defendant first argues that Plaintiff was not exposed to a substantial risk of serious harm given the limited possibility of physical contact with McCrimmon, the prisoner-orderly who attacked Plaintiff. In the Defendant's words, "Plaintiff was housed in a protective custody cell behind a thick metal door with only a small opening." (Doc. 62-1, p. 10). Second, Defendant argues that he was not deliberately indifferent to the risk posed by McCrimmon. As Defendant puts it, "[b]ecause of Plaintiff's housing situation, Officer Lockett never perceived that Plaintiff was at risk of any physical harm." (Id.).
The available evidence relating to Plaintiff's cell and to the April 4 attack by McCrimmon, even when construed in Plaintiff's favor, requires judgment as a matter of law in favor of Defendant Lockett. Although the risk of bodily harm is always present to some degree in penal institutions, see, e.g., Purcell ex rel. Estate of Morgan v. Toombs Cty., Ga., 400 F.3d 1313, 1323 (11th Cir. 2005), and although the record suggests that Plaintiff faced a particularized risk of harm based on threats of gang violence and based on prior unfavorable interactions with McCrimmon, Plaintiff's cell was secure enough to protect him from a substantial risk of serious harm at the hands of other prisoners.
Pictures of Plaintiff's cell, which Plaintiff identified at his deposition, show a solid metal door with only small openings permitting access from the outside. (Doc. 62-3, pp. 13-15, 45-47). The tray flap opening might have allowed McCrimmon to reach an arm's length into Plaintiff's cell, but by Plaintiff's estimation, his cell was around 8 feet wide by 14 feet long, providing ample room to maneuver. (Doc. 62-3, p. 16). No evidence suggests that McCrimmon, or any other prisoner, ever reached through the tray flap for the purpose of harming Plaintiff either before or after the April 4 attack. In this respect, Plaintiff's protective custody cell appears to have been effective in reducing Plaintiff's contact with other prisoners. On these facts, no substantial risk of serious harm was present. See Brooks v. Warden, 800 F.3d 1295, 1301 (11th Cir. 2015) (finding no substantial risk of serious harm prior to a prison riot).
Moreover, the April 4 attack was not the result of McCrimmon, or any other prisoner, reaching into Plaintiff's cell. Rather the attack stemmed from Plaintiff's effort to wedge a blanket into the tray flap, thereby projecting his elbow out of the cell. In other words, Plaintiff's own acts placed him in contact with McCrimmon. As Defendant notes, "if Plaintiff wanted to remain safe from Inmate McCrimmon, all he had to do was remain entirely within his cell." (Doc. 62-1, p. 4). It is not clear that Plaintiff's imprudent conduct alters in any degree the "substantial risk of serious harm" calculus. Even if it did, though, prison officials are not "guarantor[s] of a prisoner's safety." Purcell, 400 F.3d at 1323 (citing Popham v. City of Talladega, 908 F.2d 1561, 1564 (11th Cir. 1990), a "jail suicide case"). No evidence suggests that Defendant was or should have been aware that Plaintiff would expose himself to physical contact from McCrimmon. Absent facts supporting awareness, Plaintiff would not be able to satisfy the "deliberate indifference" element of his failure-to-protect claim.
Finally, Defendant is also entitled to summary judgment on the ground of qualified immunity because Plaintiff cannot show that Defendant's actions violated clearly established law. Qualified immunity "protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotations omitted). Clearly established law must be "particularized to the facts of the case." White v. Pauly, 137 S.Ct. 548, 552 (2017) (internal quotations omitted).
No authority clearly establishes that Plaintiff's circumstances at Macon State Prison presented a substantial risk of serious harm in violation of the Eighth Amendment's cruel and unusual punishments clause. In Brooks v. Warden, an analogous case, the Eleventh Circuit considered but rejected the contention that Brooks, a prisoner at the Georgia Diagnostic and Classification Prison, faced a substantial risk of serious harm from another prisoner, Watson. 800 F.3d 1295, 1301-03 (11th Cir. 2015). The Court in Brooks distinguished cases like Rodriguez v. Sec'y for the Dep't of Corr., 508 F.3d 611 (11th Cir. 2007), involving prisoners who regularly mingled in general population areas. Brooks, 800 F.3d at 1302 ("the inmate's planned release into the general prison population indisputably put him at risk for attack"). In contrast to these cases, the plaintiff in Brooks typically was separated from the other inmate by at least one cell door — the two prisoners were housed in separate cells, but "cell doors in the [facility] were known to open unintentionally." Id., at 1298. Based on this factor of separation, the Eleventh Circuit found that the risk of physical harm to Brooks was "remote." Id., at 1303.
The decision in Brooks strongly suggests that Plaintiff suffered no Eighth Amendment violation relating to the April 4, 2015 attack. Even if Plaintiff did suffer a violation, however, Plaintiff cannot show that it was a violation of clearly established law. As in Brooks, Plaintiff was separated from McCrimmon by a metal door with only a small "tray flap" opening permitting interaction. These circumstances rendered the risk of harm to Plaintiff so remote, that no reasonable person would have perceived an Eighth Amendment violation based on risk of assault by another prisoner. As a result, Defendant is entitled to qualified immunity.
After a careful review of the record, it is
The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice."
