MARC T. TREADWELL, District Judge.
In a 31-page Recommendation, United States Magistrate Judge Charles H. Weigle recommends denying the Plaintiff's motion for partial summary judgment (Doc. 235) and granting in part and denying in part the Defendants' motion for summary judgment (Doc. 233). Doc. 289 at 1. The Recommendation states the relevant facts in detail, and the Court does not repeat them here. Very generally, the Plaintiff's claims arise from three incidents. One involves the alleged use of excessive force by an officer when he slammed a "tray flap"—a 5-inch by 12-inch opening in the Plaintiff's cell door— onto the Plaintiff's hand and the alleged subsequent inadequate medical care for his hand injury. Id. at 2; Doc. 233-2 at 7:14-17. The second involves the alleged retaliation against the Plaintiff for his use of the prison grievance system. Id. Finally, the third incident involves the alleged inadequate medical care for a bullet that was stuck inside the Plaintiff's leg. Doc. 289 at 2-3. The Magistrate Judge recommends that the Plaintiff's deliberate indifference claim related to his hand injury against Defendant Burnside be dismissed and his remaining claims proceed to trial. Id. at 1. The remaining claims are: (1) an excessive force claim against Defendant Clupper; (2) retaliation claims against Defendants Clupper, Kyles, Powell and Logan; and (3) a deliberate indifference claim against Defendant Burnside related to the embedded bullet in the Plaintiff's leg. Id. Both the Plaintiff and the Defendants have objected to the Recommendation.
In their objection, the Defendants "do not object to the recommendation regarding Plaintiff's medical deliberate indifference claims" against Defendant Burnside. Doc. 293 at 2. Instead, they argue the Magistrate Judge erred in recommending summary judgment be denied on the Plaintiff's excessive force and retaliation claims because the Magistrate Judge relied on alleged facts not supported by the record. Id. On the contrary, it is clear from the Defendants' objection that the Defendants either do not understand the reasoning behind the Magistrate Judge's findings or are unfamiliar with the record, or both.
For example, to rebut the Plaintiff's excessive force claim, the Defendants contend there is no evidence that the "Plaintiff broke his left pinky finger."
It is undisputed that on December 19, 2013, Defendant Clupper closed a "tray flap" onto the Plaintiff's right hand. As a result, the Plaintiff suffered injuries. Specifically, the Plaintiff stated the following at his deposition:
Doc. 233-2 at 18:22-8. Over a year later, an x-ray of the Plaintiff's right hand revealed a healed fracture of the "4th metacarpal" or "ring" finger. Doc. 113-2 at 11. Given these facts, the Defendants seem to believe that because the x-ray results do not show that the Plaintiff's right pinky finger was broken and because the Plaintiff did not say at his deposition that his right "metacarpal" or "ring" finger was broken, that undercuts his excessive force claim. Doc. 293 at 2.
However, as the Plaintiff acknowledged at his deposition, "it felt" like his hand was broken; he did not know, and certainly cannot be expected to know, whether his fingers, including his "metacarpal" or "ring" finger, were actually broken. Doc. 233-2 at 18:12-15. All he knew was that on a scale of 1 to 10, with 10 being the most extreme, the pain level was a 10 for what he described as a "swelled up" and "purple-ish" hand. Id. at 10:5-13. Moreover, there is additional evidence to connect the tray flap incident to the broken "ring" finger. Though the Defendants rely only on the Plaintiff's deposition testimony, the Plaintiff, in one of his medical requests, stated that due to the incident, "it hurts to bend" his fingers, including his "right pinky and ring finger." Doc. 116-5 at 3. Thus, given the Plaintiff's testimony, subsequent grievances, medical records and medical service requests, a jury could reasonably find that the Plaintiff sustained a fractured metacarpal bone on his right hand during the tray flap incident.
The Defendants also argue that because the record shows the prison enforces a strict prohibition against "bucking the flap" and that the Plaintiff "bucked the flap," the Magistrate Judge erred in concluding otherwise. Doc. 293 at 3-4. The Court disagrees. Contrary to the Defendants' assertion that the Magistrate Judge "discounted Plaintiff's own sworn testimony," the Magistrate Judge did consider the Plaintiff's deposition testimony in concluding a jury could reasonably find that the Plaintiff did not "buck the flap" and that the prison did not regularly enforce its prohibition against "bucking the flap." Docs. 289 at 15, 24; 293 at 4. At his deposition, the Plaintiff explained that "bucking the flap" means "[n]ot letting the officer close the flap."
Thinking the same would happen here, the Plaintiff placed his hand on the tray flap so that Defendant Clupper, who allegedly had been ignoring him, would contact his supervisor. Id. at 7-8. But rather than calling his supervisor, Defendant Clupper allegedly "slam[med]" the tray flap onto the Plaintiff's hand without giving sufficient warning. Id. at 9:4-7. The parties do not dispute that the Plaintiff placed his hand on the tray flap. However, as the Magistrate Judge points out, a jury could reasonably find that the Plaintiff placed his hand on the tray flap not to prevent Defendant Clupper from closing the flap but to get Defendant Clupper's and his supervisor's attention. Doc. 289 at 24. A reasonable jury could also find that the Plaintiff, after getting Defendant Clupper's attention, had little or no opportunity to remove his hand until after Defendant Clupper had already closed and reopened the flap. In short, there are genuine factual issues not only as to whether the Plaintiff "bucked the flap" but also as to whether there was even a need or authority to use force, particularly given the evidence that the prison did not regularly or consistently enforce its prohibition against "bucking the flap," at least with respect to the Plaintiff, and Defendant Clupper did not contact his supervisor or give a meaningful warning before closing the tray flap onto the Plaintiff's hand.
Finally, as to the retaliation claim, the Defendants argue that because the Plaintiff admitted that he "bucked the flap" and that "bucking the flap" is a serious violation resulting in an inmate's automatic removal to Phase 4 (the most restrictive phase of the Georgia Diagnostic and Classification Prison's Special Management Unit), no reasonable juror could find that the Plaintiff's removal to Phase 4 was unwarranted. Doc. 293 at 4-5. That argument is unavailing. First, as discussed, while the Plaintiff did place his hand on the tray flap, there is a genuine dispute of material fact as to whether the Plaintiff "bucked the flap," as defined by the parties. Moreover, while the Plaintiff testified that he knew other inmates had been "automatically sent" to Phase 4 for "bucking the flap" (Doc. 233-2 at 16), that was not an "admission" that the Plaintiff believed he would automatically be removed. In fact, in the previous occasion, the Plaintiff was not automatically removed to Phase 4 for "bucking the flap." One plausible explanation for why he was treated differently from other inmates could be that the Plaintiff, unlike other inmates, did not try to prevent the officer from closing the flap but instead engaged in what he called "a peaceful protest" when placing his hand on the flap. Doc. 233-2 at 7:14-18. Another explanation may be that removal to Phase 4 for "bucking the flap" depends on which officer is in charge—in other words, it is entirely discretionary.
Regarding the Plaintiff's objection, the Plaintiff raises two issues. First, the Plaintiff argues that the Defendants have submitted and relied upon affidavits that were neither signed nor notarized and thus, these documents should not be considered as evidence.
The Plaintiff's second issue is whether Defendant Burnside acted with deliberate indifference with regard to his hand injury. Doc. 294 at 2-3. The Plaintiff contends that Defendant Burnside, "as a supervisor of the medical department at the SMU[,] should have subject[ive] knowledge of [the Plaintiff's] num[e]rous medical request." Id. at 3. The Court disagrees. There is no evidence in the record that Defendant Burnside, a GDCP physician, was aware of the Plaintiff's hand injury or the Plaintiff's medical-service requests and prison grievances prior to a December 9, 2014 treatment session—and by then, the hand injury was no longer objectively serious. See Docs. 233-2 at 17 (Plaintiff saying he told Defendant Burnside about his hand injury at the December 2014 treatment session but at that time, his hand "wasn't swollen any more"); 113-2 at 7 (Defendant Burnside's notes from a September 24, 2014 treatment session showing Plaintiff's complaints of "fever" and "chills" but no complaints about Plaintiff's right hand). Nor is there evidence that Defendant Burnside acted unreasonably after becoming aware of the injury. See Doc. 113-2 at 10-11 (Defendant Burnside's notes from a March 10, 2015 treatment session showing "No Problem Seen" regarding the Plaintiff's right-hand injury and ordering an x-ray of the Plaintiff's right hand). Accordingly, the Plaintiff's deliberate indifference claim against Defendant Burnside related to the hand injury fails as a matter of law.
The Court has reviewed the Recommendation and the parties' objections and accepts the findings, conclusions, and recommendations of the Magistrate Judge. For the foregoing reasons, the Recommendation (Doc. 289) is
