Evans v. Perkins (INMATE 1)

Filing 39

RECOMMENDATION of the Magistrate Judge that: (1) the defendant's 19 motion for summary judgment be granted; (2) this case be dismissed without prejudice; (3) the costs of this proceeding be taxed against plaintiff. Objections to R&R due by 10/22/2008. Signed by Honorable Charles S. Coody on 10/9/08. (sl, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION E R IC DEMETRIUS EVANS, # 249159, Plaintiff, v. ) ) ) ) ) ) ) ) ) )

C I V I L ACTION NO. 2:07cv100-MEF (WO)

R A L P H PERKINS, et al., Defendants.

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE In this 42 U.S.C. § 1983 action, the inmate plaintiff, Eric Demetrius Evans ("Evans"), com plain s that defendant Ralph Perkins violated his rights secured by the Eighth Amendment b y failing to ensure that a brick wall was repaired before it fell on him. According to Evans, h e hurt his wrist and his back when a concrete brick wall fell on him. Evans "contend (sic) th a t the defendant Perkins has been warned several times of this trape (sic) for inmates but D e fe n d a n t Perkins only showed a reckless neglect for the problems." (Id.). Evans seeks c o m p e n s a to r y and punitive damages. P u r s u a n t to the orders of this court, the defendant filed a written special report and s u p p o rtin g evidentiary material addressing the plaintiff's claim. In accordance with the order en tered on May 16, 2007 (doc. # 33), the court deems it appropriate to treat the defendant's sp e c ial report as a motion for summary judgment. The plaintiff was provided an opportunity t o respond to the motion and has done so. Upon consideration of the motion, pleadings, re sp o n s e s and evidentiary material filed in support of and in opposition to the motion, the

c o u rt concludes that the motion for summary judgment is due to be granted. F A C T S1 E v a n s was incarcerated at the Elmore Correctional Facility where he worked in the la u n d ry . Defendant Ralph Perkins is one of the managers at the laundry. Evans was injured o n January 25, 2007, when a concrete brick wall fell and struck him on his wrist. Evans was p la c in g his jacket on the wall when it collapsed. The laundry manager on duty, Charles Williams, arranged for Evans to be taken to S tato n Health Care unit. Evans' right hand was swollen and he had abrasions on his middle fin g e r. He was treated and returned to the Elmore County Correctional Facility. E v a n s filed this action on February 1, 2007. STANDARD OF REVIEW " S u m m a ry judgment is appropriate `if the pleadings, depositions, answers to in te rro g a to rie s, and admissions on file, together with the affidavits, if any, show there is no g e n u i n e issue as to any material fact and that the moving party is entitled to judgment as a m a tte r of law.'" Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11 th Cir. 2 0 0 7 ) (per curiam) (citation omitted); FED.R.CIV.P. 56(c) (Summary judgment "should be re n d e re d if the pleadings, the discovery and disclosure materials on file, and any affidavits sh o w that there is no genuine issue as to any material fact and that the movant is entitled to

The court construes the facts in a light most favorable to the non-movant, the plaintiff in this case. See, e.g. Brown v. Crawford, 906 F.2d 667 (11th Cir. 1990).

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ju d g m e n t as a matter of law.").2 The party moving for summary judgment "always bears the in itia l responsibility of informing the district court of the basis for its motion, and identifying th o s e portions of the [record, including pleadings, discovery materials and affidavits], which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. C a tre tt, 477 U.S. 317, 323 (1986). The movant may meet this burden by presenting evidence w h i c h would be admissible at trial indicating there is no dispute of material fact or by s h o w in g that the nonmoving party has failed to present evidence in support of some element o f its case on which it bears the ultimate burden of proof. Id. at 322-324. Once the defendant has met his evidentiary burden and demonstrated the absence of a genuine issue of material fact with respect to the plaintiff's claim, the burden shifts to the p la in tiff to establish, with appropriate evidence beyond the pleadings, that a genuine issue m a t e r i a l to his case exists. Clark v. Coats and Clark, Inc., 929 F.2d 604, 608 (11 th Cir. 1 9 9 1 ); Celotex, 477 U.S. at 324; FED.R.CIV.P. 56(e)(2) ("When a motion for summary ju d g m e n t is properly made and supported, an opposing party may not rely merely on a lleg a tio n s or denials in its own pleading; rather, its response must ... set out specific facts s h o w in g a genuine issue for trial."). A genuine issue of material fact exists when the n o n m o v in g party produces evidence that would allow a reasonable fact-finder to return a v e rd ic t in its favor. Greenberg, 498 F.3d at 1263.

Effective December 1, 2007, "[t]he language of Rule 56 [was] amended ... to make the rule[] more easily understood and to make style and terminology consistent throughout the rules. These changes ... are stylistic o n ly ." FED.R.CIV.P. 56 Advisory Committee Notes. Thus, although Rule 56 underwent stylistic changes, its s u b sta n c e remains the same and, therefore, all cases citing the prior rule remain equally applicable to the current ru le.

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A lth o u g h factual inferences must be viewed in a light most favorable to the n o n m o v in g party and pro se complaints are entitled to liberal interpretation by the courts, a p r o se litigant does not escape the burden of establishing by sufficient evidence a genuine is s u e of material fact. Beard v. Banks, 548 U.S. 521, 525 (2006); Brown v. Crawford, 906 F .2 d 667, 670 (11 th Cir. 1990). Thus, the plaintiff's pro se status alone does not mandate this c o u rt's disregard of elementary principles of production and proof in a civil case. In this c a se , Evans fails to demonstrate a requisite genuine issue of material fact in order to preclude s u m m a ry judgment. Matsushita, supra. DISCUSSION E v a n s complains that defendant Perkins was deliberately indifferent to his health and s a fe ty because Perkins did not "fix the wall when warn (sic) on numberous (sic) occasions," a b o u t the danger of the wall collapsing. (Pl's Opp. to Def's Spec. Rep., Ex. A at 2). A p riso n official may be held liable under the eighth amendment for acting with "deliberate in d iffe re n c e" to inmate health or safety only if he knows that the inmate faces a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it. Farmer v. Brennan, 511 U.S. 825 (1994). Under this standard, to survive summary ju d g m e n t on this claim, the plaintiff must produce sufficient evidence of (1) a substantial risk o f serious harm; (2) the defendant's deliberate indifference to that risk; and (3) causation. S e e LaMarca v. Turner, 995 F.2d 1526, 1535 (11 th Cir. 1993). Mere negligent failure to p ro te c t an inmate from injury does not justify liability under section 1983. Davidson v. C a n n o n , 474 U.S. 344 (1986). Prison officials must have been deliberately indifferent to a 4

k n o w n danger before it can be said that their failure to act offended "evolving standards of d e c e n c y ," thereby rising to the level of a constitutional tort. Estelle v. Gamble, 429 U.S. 97, 1 0 5 -0 6 (1976); Hopkins v. Britton, 742 F.2d 1308, 1310 (11 th Cir. 1984). The known risk o f injury must be "`a strong likelihood, rather than a mere possibility'" before a prison o ff ic e r' s failure to act can constitute deliberate indifference. Edwards v. Gilbert, 867 F.2d 1 2 7 1 , 1276 (11 th Cir. 1989). T h is case is before the court on Perkins' motion for summary judgment in which he d en ies that he had been previously advised that the wall was in danger of collapsing. (Def's S p ec . Rep., Ex. A at 2). In his response, Evans asserts that Perkins was told by laundry m a n a g ers Williams and Summerlin "to fix the wall before it fall on someone..." (Pl's Opp. to Def's Spec. Rep., Ex. A at 1-2). The obvious difficulty with this assertion is that Evans d o e sn 't say how he knows what Perkins was allegedly told, and this failure on his part means that the court cannot consider it in support of his opposition to the motion for summary ju d g m e n t. See FED.R.CIV.P. 56(e)(1) (Requiring that an opposing affidavit "be made on p e r s o n a l knowledge, set out facts that would be admissible in evidence, and show that the a ffia n t is competent to testify on the matters stated . . . "). Evans' assertions in his affidavit th a t Perkins was told to fix the wall are simply hearsay, and thus, do not comply with FED. R . CIV. P. 56. To prevail against a defendant, Evans must show that the defendant was involved in a c ts or omissions that resulted in the constitutional deprivation. Hale v. Tallapoosa County, 5 0 F.3d 1579 (11 th Cir. 1995). The language of § 1983 plainly requires proof of an 5

affirm a tiv e causal connection between the actions taken by a defendant and the constitutional d e p riv a tio n . Swint v. City of Wadley, Ala., 51 F.3d 988, 990 (11 th Cir. 1995). The undisputed e v id e n c e demonstrates that Perkins was not present in the laundry when Evans injured his h a n d . Thus, Evans has failed to present any admissible evidence that Perkins was involved in the incident that resulted in the alleged constitutional violation. See FED. R. CIV. P. 56(e). M o re importantly, however, Evans has failed to produce any evidence which would e sta b lis h that Perkins was deliberately indifferent to his safety.3 Even assuming Perkins at s o m e point knew that Evans was going to hang his coat on the concrete wall, Evans has f a il e d to come forward with any evidence that Perkins knew that the wall would fall and in ju re Evans. Simply put, Evans has presented no evidence that Perkins knew Evans faced a s a substantial risk of serious harm and disregarded that risk. Farmer, supra. When a motion for summary judgment has been made properly, the nonmoving party m a y not rely solely on the pleadings, but by affidavits, depositions, answers to in te rro g a to rie s, and admissions must show that there are specific facts demonstrating that th e re is a genuine issue for trial. See Brown, supra (a pro se litigant's allegation of c o n ta m in a t e d drinking water was found unsubstantiated and completely speculative because t h e litigant failed to submit a doctor's diagnosis for any medical examination evidence su p p o rting those allegations.). A plaintiff's mere verification of conclusory allegations is not s u f f i c i e n t to oppose a motion for summary judgment. Harris v. Ostrout, 65 F.3d 912 (11 t h
Even if the court were to assume that Perkins was negligent because he allowed Evans to be in the area of the concrete wall, mere negligence is insufficient to violate the Constitution. See generally Estelle v. Gamble, 429 U.S. 97 (1976) and Davidson v. Cannon, 474 U.S. 344 (1986).
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C ir. 1995); Fullman v. Graddick, 739 F.2d 553, 556-57 (11 th Cir. 1984). The mere fact that the wall fell and Evans was injured is insufficient to establish a constitutional violation. In th e final analysis, the plaintiff has failed to show that he was at any risk of serious harm or th a t Perkins knew that he faced a substantial risk of serious harm. In the absence of such a s h o w i n g by the plaintiff, it is clear that the plaintiff has failed to establish a genuine issue a b o u t deliberate indifference on the part of Perkins. Brown, 906 F.2d at 670. Summary ju d g m e n t is therefore due to be granted in his favor. Celotex, 477 U.S. at 322-23. CONCLUSION A c c o rd in g ly , it is the RECOMMENDATION of the Magistrate Judge that: 1. 2. 3. T h e defendant's motion for summary judgment be GRANTED. T h is case be dismissed without prejudice. T h e costs of this proceeding be taxed against the plaintiff.

It is further O R D E R E D that the parties shall file any objections to the said Recommendation on o r before October 22, 2008. Any objections filed must specifically identify the findings in th e Magistrate Judge's Recommendation to which the party objects. Frivolous, conclusive o r general objections will not be considered by the District Court. The parties are advised th a t this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual 7

fin d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11 th Cir. 1981, en banc), adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on S e p te m b e r 30, 1981. D o n e this 9 th day of October 2008.

/s/Charles S. Coody CHARLES S. COODY C H IE F UNITED STATES MAGISTRATE JUDGE

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