JOHN E. OTT, Magistrate Judge.
The plaintiff has filed a pro se complaint seeking monetary damages or injunctive relief pursuant to 42 U.S.C. § 1983 for alleged violations of his civil rights during his incarceration at the Donaldson Correctional Facility in Bessemer, Alabama. (Doc. 1). Named as defendants in this action are Correctional Officer Samuel Aaron; Correctional Officer Michael Weirich; Warden Cedrick Specks; Institutional Coordinator Cheryl Price; Correctional Captain Jeffery Baldwin; Correctional Officer Rickey Cunningham; Correctional Lieutenant Deaundra L. Johnson; Correctional Officer Thaddeus Smith; Correctional Officer Cameron Jones; Correctional Lieutenant (Retired) John Arthur; (cumulatively, "the Correctional Defendants"); Licensed Practical Nurse Patricia McGrue; Licensed Practical Nurse Cathy Ford; and Corizon, LLC (cumulatively "the Medical Defendants"). The plaintiff seeks compensatory and punitive damages for alleged excessive force, deliberate indifference to medical needs, and state law assault and battery. In accordance with the usual practices of this court and 28 U.S.C. § 636(b)(1), the complaint was referred to the undersigned magistrate judge for a preliminary report and recommendation. See McCarthy v. Bronson, 500 U.S. 136 (1991).
On August 18, 2015, the undersigned entered an Order for Special Report directing the Clerk to forward copies of the complaint to each of the named defendants and directing the defendants to file a special report addressing the plaintiff's factual allegations. (Doc. 16). The undersigned advised the defendants that the special report could be submitted under oath or accompanied by affidavits and, if appropriate, the court would considered it as a motion for summary judgment filed pursuant to Rule 56 of the Federal Rules of Civil Procedure.
On December 30, 2015, the medical defendants filed a special report, supplemented by affidavits and documents from the plaintiff's medical file. (Doc. 37). Their special report also included a motion for summary judgment. On May 5, 2016, the correctional defendants filed a special report, supplemented by affidavits and certain prison documents related to the events made the basis of the plaintiff's claims. (Doc. 48). The plaintiff filed an unsworn response to the correctional defendants' special report on June 13, 2016. (Doc. 52).
On June 21, 2016, the undersigned notified the parties that the court would construe the respective special reports as motions for summary judgment and notified the plaintiff that he had twenty-one (21) days to respond to the motions by filing affidavits or other material. (Doc. 54). The undersigned also advised the plaintiff of the consequences of any default or failure to comply with Fed. R. Civ. P. 56. (Id.). See Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985). After at least three extensions of time, the plaintiff submitted an unsworn response to the medical defendants' special report/motion for summary judgment on August 24, 2016. This matter is now before the court on the defendants' special reports being construed as motions for summary judgment.
Because the court has construed the defendants' special report as a motion for summary judgment, Fed. R. Civ. P. 56 governs the resolution of the motion. Under Rule 56(a), 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." In making that assessment, the court must view the evidence in a light most favorable to the non-moving party and must draw all reasonable inferences against the moving party. Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000). The burden of proof is upon the moving party to establish his prima facie entitlement to summary judgment by showing the absence of genuine issues of material fact and that he is due to prevail as a matter of law. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Unless the plaintiff, who carries the ultimate burden of proving his action, is able to show some evidence with respect to each element of his claim, all other issues of fact become immaterial, and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Bennett v. Parker, 898 F.2d 1530, 1532-33 (11th Cir. 1990). As the Eleventh Circuit has explained:
Bennett, 898 F.2d at 1532.
However, any "specific facts" pled in a pro se plaintiff's sworn complaint must be considered in opposition to summary judgment. See Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014) (citing Perry v. Thompson, 786 F.2d 1093, 1095 (11th Cir. 1986)). Additionally, because the plaintiff is pro se, the court must construe the complaint more liberally than it would pleadings drafted by lawyers. Hughes v. Rowe, 449 U.S. 5, 9 (1980). "Pro se pleading are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed." Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006).
The following facts are undisputed, or where disputed, are taken in a light most favorable to the plaintiff:
One of the officers responding to Weirich's call was defendant Deaundra Johnson, who testifies that she observed the plaintiff running up the West Hall away from Officer Weirich. (Doc. 48-10 at 2). After several of the responding officers gave loud verbal commands for the plaintiff to stop, he was apprehended and handcuffed by Officer Aaron, who then escorted him into the West Barbershop. Id.; Doc. 48-5 at 2).
However, the plaintiff's complaint paints a different picture. He contends that after forcing him to the floor, Officer Aaron then "dropped onto [his] chest and began hollering and screaming . . . using racial slurs and foul language." (Doc. 1 at 6). He states that Aaron then "wrapped his hands around [his] neck while attempting to choke [him] into unconsciousness." (Id.). While this was happening, the plaintiff alleges other officers surrounded them and formed a circle "in an attempt to block out [Aaron's] brutal and vicious assault." (Id.). The plaintiff names Correctional Officers Cunningham, Smith, and Jones, as being present when these events were taking place. (Id. at 7).
Following these events, the plaintiff was escorted to the Health Care Unit where he was examined by Nurses McGrue and Ford. (Doc. 37-1 at 3; Doc. 37-2 at 3). At that time, the plaintiff informed the Nurses that he had been sprayed with pepper spray, and he was placed in the shower to remove any residue. (Id.). Nurse McGrue states that although the plaintiff "voiced general complaints of pain," those complaints "appeared to be solely related to being sprayed with pepper spray," and her physical exam of the plaintiff failed to reveal "any visible marks or bruises." (Doc. 37-1 at 3).
The following morning, the plaintiff was called to a meeting with Captain Baldwin and Warden Specks to discuss the previous day's events. (Doc. 1 at 7-8; Doc. 48-7; Doc. 48-13). He contends that during this meeting he was advised by Baldwin and Specks that they would "handle" or "take care of" the disciplinary action initiated by Officer Weirich for failure to obey a direct order. (Doc. 1 at 8). Specks testifies that he did in fact look into the matter and determined that Office Weirich would be disciplined for use of a chemical agent "contrary to his training." (Doc. 48-13). However, Warden Specks also determined that the plaintiff should also receive a disciplinary charge for failing to obey a direct order. (Id.). Captain Baldwin concurs that Weirich's use of force was warranted, but also concurs that the way Weirich utilized the chemical spray was "inappropriate." (Doc. 48-7 at 2).
On November 1, 2014, the plaintiff was taken before the disciplinary court to answer the charge asserted by Office Weirich. (Doc. 1 at 8; Doc. 48-4 at 6). He contends that he "had not prepared any statement nor written questions for the arresting Officer due to the word and promises of defendants Speck and Baldwin. . . that they would take care of the disciplinary." (Doc 1 at 8). He states this left him "at the mercy of the Disciplinary Hearing Officer," resulting in a due process violation. (Id. at 8 and 10-11).
Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only when those needs are "serious" and only when the response to those needs is so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness. Hill v. Dekalb Regional Youth Detention Center, 40 F.3d 1176 (11th Cir. 1994); Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991). A "serious" medical need has been defined as "one that has either been diagnosed by a physician as mandating medical treatment or one that is so obvious that even a lay person would recognize the need for a doctor's attention." Hill, 40 F.3d at 1187 (quoting Laaman v. Helgemoe, 437 F.Supp. 269, 311 (D.N.H. 1977). Additionally, the "seriousness" of an inmate's medical needs may also be gauged by examining the effect of delay in treatment. Hill, 40 F. 3d at 1188. Thus, "[a]n inmate who complains that delay in medical treatment rose to a constitutional violation must place verifying medical evidence in the record to establish the detrimental effect of delay in medical treatment to succeed." Id.
In the summary judgment context, once the moving party has established a prima facie entitlement to judgment, the non-moving party generally may not rely on his pleadings alone but must come forth with evidence supporting the essential elements of his claim. Celotex Corp., supra. In this instance, not only is the record devoid of any description of the actual physical symptoms being experienced by the plaintiff,
The plaintiff's failure to establish a genuine factual issue with regard to the objective element of his Eighth Amendment claim is further bolstered by the fact that there is nothing in the record which demonstrates he suffered any tangible injury from the alleged delay or failure to treat. The Eleventh Circuit has consistently held that a serious medical need is one that "poses a substantial risk of serious harm if left unattended." Ciccone v. Sapp, 238 F. App'x 487, 488 (11th Cir. 2007) (citing Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003)). In this instance, the defendants have submitted affidavits which indicate the plaintiff was suffering no serious issues at the time he was seen in the infirmary, and the plaintiff points to nothing in the medical record which shows he complained of any lingering effects from the alleged allergic reaction.
Maintaining institutional security and preserving internal order and discipline are essential goals of a prison administration and may require limitation or retraction of the constitutional rights of prisoners. Bell v. Wolfish, 441 U.S. 520 (1979). Prison officials must therefore be free to take appropriate action to insure the safety of inmates and staff, and the courts will not normally second-guess those officials on matters involving internal security. Wilson v. Blankenship, 163 F.3d 1284 (11th Cir. 1998). When disciplinary action is taken by a prison official to prevent a security threat or to restore official control, the court's Eighth Amendment inquiry focuses on whether force was applied in a good faith effort to maintain or restore discipline or was undertaken maliciously or sadistically to cause harm. Sims v. Mashburn, 25 F.3d 980 (11th Cir. 1994).
With respect to need for the application of force on the occasion in question, Officer Weirich testifies without refute that the plaintiff disobeyed a direct order to return to his living quarters and was proceeding towards the West Hall without authorization. Although there is some dispute with regard to the sequence of events that occurred immediately prior to the plaintiff being maced, there is no material variation between the plaintiff's version of events as presented in his complaint and Weirich's testimony with respect to the issue of whether or not there was a need for physical intervention. As stated above, our courts have long held that prison officials must be free to take appropriate measures to ensure the safety of inmates and staff. Wilson, supra. This clearly would include intervention by guards when inmates refuse to obey a direct order. In the dangerous prison setting, even verbal confrontations between prisoners and guards can present a security and safety issue, and our courts recognize that "guards may use force when necessary to restore order and need not wait until disturbances reach dangerous proportions before responding." Fennell v. Gilstrap, 559 F.3d 1212, 1218 (11th Cir. 2009).
The second factor to consider in determining if a prison guard's use of force violates the Constitution is the relationship between the need and the amount of force used. In this instance, there is testimony from Warden Specks and Captain Baldwin which indicates Officer Weirich "administered the chemical agent improperly" and in a manner "not within his training guidelines." (Doc. 48-13 at 2; Doc. 48-7 at 2). However, this court must give "wide ranging" deference to the judgment of prison officials in their response to an actual confrontation between inmates. Whitley, 475 U.S. at 322. As stated by the Supreme Court in Whitley,
475 U.S. at 319 (emphasis added). Therefore, where there is no evidence that an action was taken in bad faith or without a legitimate purpose, "neither judge nor jury should freely substitute their judgment for that of officials who have made a considered choice." Id. at 322. Although the manner in which the defendant used the chemical spray may have violated his technical training or ADOC procedures, there is no evidence that his response was particularly excessive or harmful. Where the defendant's use of force is simply "part and parcel of a good-faith effort to restore prison security," there is no Eighth Amendment violation. Id. at 326.
The third factor to be examined in an excessive force claim is whether or not a responsible official would have reasonably perceived a threat under the circumstances. In this regard, Officer Weirich has presented unrefuted testimony that the plaintiff became angry, refused a direct order to return to his living quarters, and proceeding to enter another part of the prison for which he had no authorization. As noted earlier, prisons are dangerous places and security of the institution is a paramount concern. Accordingly, it seems clear that a reasonable officer would have perceived a security threat under the circumstances.
The final Hudson factor examines the defendant's efforts to temper the severity of the response. In this instance, Officer Weirich's testimony is that he stepped in front of the plaintiff and ordered him to return to his living quarters. It was only after the plaintiff ignored the order and proceeded down the West Hall that Weirich used the chemical spray. There is no evidence that Weirich punched, kicked, or used a baton on the plaintiff, and no evidence that Weirich had any further involvement after radioing for assistance. (Doc. 48-14 at 2). Furthermore, there is no evidence that the use of chemical spray on the plaintiff's back and head caused any serious or lasting injury. For these reasons, Officer Weirich is entitled to summary judgment.
However, a different result is reached with regard to Officers Aaron, Cunningham, Smith, and Jones. The plaintiff's sworn complaint alleges that while he was handcuffed he was thrown to the floor of the barbershop by Officer Aaron as the other correctional officers stood in a circle around them.
Applying the Hudson standards to the facts regarding the events in the barbershop, it is clear that genuine issues of fact exist with respect to the plaintiff's Eighth Amendment excessive force claim against the above-named defendants. Based upon the allegations in the sworn complaint, the plaintiff presented little or no threat and there was no need for the use of force against the plaintiff once he was handcuffed and taken to the barbershop, much less to the extent alleged. Based upon the record as presently presented, it seems clear that a reasonable jury could find that force was applied by Officer Aaron for reasons other than a good faith effort to maintain discipline. Furthermore, the plaintiff has alleged he suffered a bruised back, sore hands and redness around his neck and throat. (Doc. 1 at 7). These assertions are corroborated by subsequent medical records which show that the plaintiff complained of lower back pain following the incident. (Doc. 37-3 at 50-56). At the very least, genuine issues of fact exist with respect to the four Hudson elements described above. The defendants' statements to the contrary simply create an issue of fact to be decided at trial.
Although the other officers listed above are not alleged to have taken part in the force used against the plaintiff in the barbershop, it is alleged they failed to intervene to prevent the excessive force. Prison guards may become directly liable under § 1983 if they fail or refuse to intervene when a constitutional violation occurs in their presence. Ensley v. Soper, 142 F.3d 1402, 1407 (11th Cir. 1998). In this instance, a genuine issue of fact exists with regard to whether the officers were in a position to prevent a constitutional violation by a fellow officer, but failed to do so. The plaintiff alleges facts which suggest that not only did the officers fail to intervene, but they made efforts to hide Aaron's activities.
Also with regard to his excessive force claim, the plaintiff also alleges that defendants Price and Specks failed to "curb the known pattern of abuse of inmates by defendants Weirich and Aaron." (Doc. 1 at 10). However, the plaintiff's conclusory statements do state plead sufficient facts to state a claim against these defendants. "The standard by which a supervisor is held liable in her individual capacity for the actions of a subordinate is extremely rigorous." Braddy v. Florida Dep't of Labor & Employment Sec., 133 F.3d 797, 802 (11th Cir.1998). Although a history of widespread abuse by a subordinate may be enough to put a supervisor on notice sufficiently to establish §1983 liability for the subordinate's actions, those abuses must be "obvious, flagrant, rampant, and of continued duration, rather than isolated occurrences." Id. at 802 (citing Brown v. Crawford 906 F.2d 667, 671 (11th Cir. 1990)). The plaintiff has not pled sufficient facts to meet this standard.
The plaintiff's due process claim against defendants Speck and Baldwin is also due to be dismissed. He contends their failure to intervene in the disciplinary proceedings against him resulted in his failure to adequately prepare for the hearing. However, with regard to prison disciplinary hearings, there are no due process requirements where the penalty imposed does not result in a "dramatic departure" from the ordinary conditions on incarceration. Sandin v. Conner, 515 U.S. 472 (1995). In Sandin, a prisoner sued prison officials under § 1983 alleging that he had been denied due process of law before being confined to disciplinary segregation for thirty days. The Supreme Court concluded in Sandin that segregation as a form of punishment was not a dramatic departure from the ordinary conditions on incarceration and, as such, did not amount to a grievous loss of a "substantive" interest protected by the Due Process Clause. Unlike the loss of good-time credit at issue in Wolff v. McDonnell, 418 U.S. 539 (1974), mere disciplinary segregation is the type of punishment an incarcerated individual should expect, and one that is ordinarily not a major change in his living conditions. Therefore, under the authority of Sandin, prisoners are not entitled to due process protection in proceedings wherein the disciplinary punishment does not result in a dramatic departure from the ordinary conditions of prison life.
In this instance, the plaintiff does not describe the specific punishment he received. However, the defendants present documentation which shows he received a loss of canteen, telephone, and visiting privileges for thirty days, and sentenced to disciplinary segregation for fifteen days. (Doc. 48-4 at 7). These are not the types of punishment which would mandate due process considerations under Sandin.
For the reasons stated above, the undersigned RECOMMENDS the motions for summary judgment (doc's. 37 and 54) on behalf of the defendants be
Any party may file specific written objections to this report and recommendation. Any objections must be filed with the Clerk of Court within fourteen (14) calendar days from the date the report and recommendation is entered. Objections should specifically identify all findings of fact and recommendations to which objection is made and the specific basis for objection. Failure to object to factual findings will bar later review of those findings, except for plain error. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986); Dupree v. Warden, 715 F.3d 1295, 1300 (11
Upon receipt of objections, a United States District Judge will make a de novo determination of those portions of the report and recommendation to which specific objection is made and may accept, reject, or modify in whole or in part, the findings of fact and recommendations made by the magistrate judge. The district judge must conduct a hearing if required by law. Otherwise, the district judge may exercise discretion to conduct a hearing or otherwise receive additional evidence. Alternately, the district judge may consider the record developed before the magistrate judge, making an independent determination on the basis of that record. The district judge also may refer this action back to the magistrate judge with instructions for further proceedings.
A party may not appeal the magistrate judge's report and recommendation directly to the United States Court of Appeals for the Eleventh Circuit. A party may only appeal from a final judgment entered by a district judge.
