Griffith v. Anderson et al (INMATE2)

Filing 54

RECOMMENDATION OF THE MAGISTRATE JUDGE that: 1. Defendants Dulaney's and Everette's 45 motion for summary judgment be GRANTED to the extent these Defendants seek dismissal of this case due to Plaintiff's failure to properly exhaust a dministrative remedies previously available to him at the Kilby Correctional Facility; 2. Plaintiff's claims for injunctive and/or declaratory relief be DISMISSED as moot; 3. Defendants Anderson's and Peterson's 14 motion for summary judgment on Plaintiff's § 1983 excessive force and deliberate indifference claims be DENIED; 4. Defendant Anderson's 14 motion for summary judgment on Plaintiff's supplemental state law claim for assault and battery be DENIED; 5. Defendant Peterson's 14 motion for summary judgment on Plaintiff's supplemental state law claim for conspiracy to commit assault and battery be DENIED; 6. Defendant Peterson's 14 motion for summary judgment on Plaintiff's s upplemental state law claim for contributory negligence be GRANTED; and 7. Plaintiff's § 1983 excessive force and deliberate indifference claims and supplemental state law claims for assault and battery against Defendant Anderson, and Plain tiff's § 1983 excessive force and deliberate indifference claims and supplemental state law claim for conspiracy to commit assault and battery against Defendant Peterson be SET for trial by jury. Objections to R&R due by 3/3/2010. Signed by Honorable Terry F. Moorer on 2/17/2010. (br, )

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION _____________________________ J O D Y EDWIN GRIFFITH, #249 169 P l a in tif f , v. G A R Y ANDERSON, et al., D e f e n d a n ts . _____________________________ * * * * * 2:07-CV-749-MEF (WO) 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, Jody Griffith ["Griffith"], an inmate incarcerated at th e Limestone Correctional Facility in Harvest, Alabama, alleges that while incarcerated at th e Kilby Correctional Facility ["Kilby"] in Mt. Meigs, Alabama, he was subjected to e x c es s iv e force and subsequently denied adequate medical care and treatment for injuries su stain ed during the use of force incident. Named as defendants are Correctional Officers G a ry Anderson and Anthony Peterson and Nurses Alfreda Dulaney and Herb Leverette. P la in tif f seeks declaratory relief, monetary damages, court costs, and attorneys fees. Plaintiff d e m a n d s trial by jury. In accordance with the orders of the court, Defendants filed answers, special reports, a supplemental special report, and supporting evidentiary material in response to the a lle g a tio n s contained in the complaint. In these documents, Defendants Anderson and P e te rs o n argue that they are entitled to summary judgment on Griffith's allegations of e x c e ss iv e force and deliberate indifference to his serious medical needs. Defendants D u la n e y and Everette asserts that the medical claims presented against them are due to be d is m is s e d because Griffith failed to exhaust an administrative remedy available to him at K ilb y. The court provided Plaintiff an opportunity to file a response to the arguments p re s e n te d by Defendants. Pursuant to the orders entered in this case and governing case law, the court deems it appropriate to treat Defendants' written reports as motions for summary judgment. See B r y a n t v. Rich, 530 F.3d 1368, 1375 (11th Cir. 2008) (Although an exhaustion defense "is n o t ordinarily the proper subject for a summary judgment [motion,]" the defense is a p p ro p ria te for summary judgment when the evidence demonstrates administrative remedies " a re absolutely time barred or otherwise clearly infeasible."), cert. denied, 129 S.Ct. 733 (D e c .8 , 2008). The court then informed Plaintiff that Defendants' special reports, as su p p lem en ted , may, at any time, be treated as a motion for summary judgment, and the court ex p lain ed to Plaintiff the proper manner in which to respond to a motion for summary ju d g m e n t. Plaintiff filed responses to the special reports filed by Defendants. This case is n o w pending on Defendants' motions for summary judgment. Upon consideration of the m o tio n s, Plaintiff's opposition to the motions, and the supporting and opposing evidentiary m a te ria ls , the court concludes that Defendants Anderson's and Peterson's motion for s u m m a ry judgment on Plaintiff's excessive force, deliberate indifference, and state law a s s a u lt and battery claims is due to be denied and Defendants Dulaney's and Everette's 2 m o tio n for summary judgment is due to be granted. I . 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 tter of law.'" Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11 th Cir. 2 0 0 7 ) (per curiam) (citation to former rule omitted); Fed.R.Civ.P. Rule 56(c) (Summary ju d g m e n t "should be rendered if the pleadings, the discovery and disclosure materials on file, a n d any affidavits show that there is no genuine issue as to any material fact and that the m o v an t is entitled to judgment as a matter of law.").1 The party moving for summary ju d g m e n t "always bears the initial responsibility of informing the district court of the basis fo r its motion, and identifying those portions of the [record, including pleadings, discovery m a te ria ls and affidavits], which it believes demonstrate the absence of a genuine issue of m a te ria l fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet th is burden by presenting evidence 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. Defendants have met their evidentiary burden. Thus, the burden shifts to Griffith to 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 only." Fe d .R.Civ.P. 56 Advisory Committee Notes. Thus, although Rule 56 underwent stylistic changes, its substance rem ains the same and, therefore, all cases citing the prior rule remain equally applicable to the current rule. 1 3 e sta b lish , with appropriate evidence beyond the pleadings, that a genuine issue material to e a c h of his claims for relief exists. Clark v. Coats & 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. In civil actions filed by inmates, federal courts must distinguish between evidence of disputed facts and disputed matters of p rof ess io n a l judgment. In respect to the latter, our inferences must accord d e f e r e n c e to the views of prison authorities. Unless a prisoner can point to su f f icie n t evidence regarding such issues of judgment to allow him to prevail o n the merits, he cannot prevail at the summary judgment stage. B e a rd v. Banks, 548 U.S. 521, 530, 126 S.Ct. 2572, 2578, 165 L.Ed.2d 697 (2006) (internal c ita tio n omitted). Consequently, to survive Defendants' properly supported motion for s u m m a ry judgment, Griffith is required to produce "sufficient [favorable] evidence" which w o u ld be admissible at trial supporting his claims of constitutional violations. Anderson v. L ib e rty Lobby, Inc., 477 U.S. 242, 249 (1986); Rule 56(e)(1), Federal Rules of Civil P r o c e d u r e . "If the evidence [on which the nonmoving party relies] is merely colorable ... or is not significantly probative ... summary judgment may be granted." Id. at 249-250. "A m ere `scintilla' of evidence supporting the opposing party's position will not suffice; there 4 m u s t be enough of a showing that the [trier of fact] could reasonably find for that party. A n d e rs o n v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986)." W a lk e r v. Darby, 911 F.2d 1573, 1576-1577 (11 th Cir. 1990). Conclusory allegations based o n subjective beliefs are likewise insufficient to create a genuine issue of material fact and, th e re f o re , do not suffice to oppose a motion for summary judgment. Waddell v. Valley Forge D e n ta l Associates, Inc., 276 F.3d 1275, 1279 (11 th Cir. 2001); Holifield v. Reno, 115 F.3d 1 5 5 5 , 1564 n.6 (11 th Cir. 1997) (a plaintiff's "conclusory assertions ..., in the absence of [adm issible] supporting evidence, are insufficient to withstand summary judgment."); Harris v . Ostrout, 65 F.3d 912, 916 (11 th Cir. 1995) (grant of summary judgment appropriate where in m a te produces nothing beyond "his own conclusory allegations" challenging actions of the d e f e n d a n ts); Fullman v. Graddick, 739 F.2d 553, 557 (11 th Cir. 1984) ("mere verification of p arty's own conclusory allegations is not sufficient to oppose summary judgment...."). H e n c e, when a plaintiff fails to set forth specific facts supported by requisite evidence s u f f ic ie n t to establish the existence of an element essential to his case and on which the p lain tiff will bear the burden of proof at trial, summary judgment is due to be granted in f a v o r of the moving party. Celotex, 477 U.S. at 322 ("[F]ailure of proof concerning an e ss e n tial element of the nonmoving party's case necessarily renders all other facts im m a ter ial." ); Barnes v. Southwest Forest Industries, Inc., 814 F.2d 607, 609 (11 th Cir. 1987) (if on any part of the prima facie case the plaintiff presents insufficient evidence to require su b m issio n of the case to the trier of fact, granting of summary judgment is appropriate). 5 F o r summary judgment purposes, only disputes involving material facts are relevant. U n it e d States v. One Piece of Real Property Located at 5800 SW 74 th Avenue, Miami, F lo r id a , 363 F.3d 1099, 1101 (11 th Cir. 2004). What is material is determined by the s u b s ta n tiv e law applicable to the case. Anderson, 477 U.S. at 248; Lofton v. Secretary of the D e p a rtm e n t of Children and Family Services, 358 F.3d 804, 809 (11 th Cir. 2004) ("Only f a ctu a l disputes that are material under the substantive law governing the case will preclude e n try of summary judgment."). "The mere existence of some factual dispute will not defeat s u m m a ry judgment unless that factual dispute is material to an issue affecting the outcome o f the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11 th Cir. 2003) (c ita tion omitted). To demonstrate a genuine issue of material fact, the party opposing s u m m a ry judgment "must do more than simply show that there is some metaphysical doubt a s to the material facts.... Where the record taken as a whole could not lead a rational trier o f fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita E le c . Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In cases where the e v id e n c e before the court which is admissible on its face or which can be reduced to a d m iss ib le form indicates that there is no genuine issue of material fact and that the party m o v in g for summary judgment is entitled to it as a matter of law, summary judgment is p ro p e r. Celotex, 477 U.S. at 323-324 (summary judgment appropriate where pleadings, e v id e n tia ry materials and affidavits before the court show there is no genuine issue as to a re q u isite material fact); Waddell, 276 F.3d at 1279 (to establish a genuine issue of material 6 f a c t, the nonmoving party must produce evidence such that a reasonable trier of fact could return a verdict in his favor). 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, 548 U.S. at 525, 126 S.Ct. at 2576; Brown v. Crawford, 906 F .2 d 667, 670 (11 t h Cir. 1990). Thus, Griffith's pro se status alone does not mandate this c o u r t's disregard of elementary principles of production and proof in a civil case. In the p re se n t cause of action, Griffith has demonstrated a genuine issue of material fact in order t o preclude entry of summary judgment on his 1983 claims for excessive force and d e lib e ra te indifference and his state law claims for assault and battery against Defendants A n d e rs o n and Peterson. Plaintiff has not, however, demonstrated a requisite genuine issue o f material fact in order to preclude summary judgment with respect to his claims against D e f e n d a n ts Dulaney and Everette. Matsushita, supra. II. DISCUSSION A . Injunctive/Declaratory Relief P la in tif f is no longer incarcerated at the Kilby Correctional Facility. The transfer or re le a s e of a prisoner renders moot any claims for injunctive or declaratory relief. See County o f Los Angeles v. Davis, 440 U.S. 625, 631 (1979); see also Cotterall v. Paul, 755 F.2d 777, 7 8 0 (11 th Cir. 1985) (past exposure to even illegal conduct does not in and of itself show a 7 p e n d in g case or controversy regarding injunctive relief if unaccompanied by any continuing p re se n t injury or real and immediate threat of repeated injury). As it is clear from the p le a d in g s and records before the court that Plaintiff is no longer incarcerated at the Kilby C o rre c tio n a l Facility, his requests for injunctive and/or declaratory relief have been rendered m o o t. B . The Complaint G rif f i th formerly worked as a correctional officer with the Alabama Department of C o rre c tio n s ["ADOC"]. He is currently an inmate in custody of the ADOC serving a 35-year s e n te n c e for murder. Because of his status as former correctional officer, Griffith is classified a s a protective custody inmate requiring his segregation from other inmates at all times. (D o c . No. 1.) The incident giving rise to this lawsuit occurred on November 23, 2006. At a p p ro x im a tely 4:30 p.m., Officer Peterson directed Griffith to the shower area where inmate C h r is to p h e r Jordan and Officer Anderson were waiting for inmate Wendell Lovell to finish s h o w e rin g . Officer Anderson removed the handcuffs from Griffith and inmate Jordan. The g u a rd proceeded to open the door to the shower cage to allow inmate Lovell to exit the sh o w e r area and then directed both Griffith and Jordan to enter the shower area. Both in m a te s complied and began showering. (Doc. No. 1.) After only a couple of minutes, Officer Anderson asked Griffith - "Waldo, can't you ta lk and shower at the same time." Griffith replied that he was showering and resumed 8 s h o w e rin g and talking to inmate Jordan. Griffith asserts that Officer Anderson then stated " T h a t's it, Waldo! Get your ass out of the shower!" Griffith maintains that he started to c o m p ly with Officer Anderson's order by rinsing the shampoo from his hair and getting re a d y to exit the shower. Officer Anderson momentarily walked away from the shower area a n d returned as Griffith was drying himself off in the front corner of the shower cage. (Doc. N o . 1.) Without notice or warning, Griffith alleges that Officer Anderson forcefully opened th e door to the shower cage causing it to strike Griffith on his left wrist and arm. Officer A n d e rs o n then entered the shower area where Griffith and inmate Jordan were standing and b e g a n striking Griffith with a baton. Officer Anderson struck Griffith's left leg ap p rox im at ely four inches above the knee. The guard then grabbed Griffith by his left arm a n d attempted to forcibly remove him from the shower cage while he continued to assault G riff ith with his baton and hands. During the altercation, Officer Anderson jerked Griffith's a rm causing him to lose his balance, fall, and hit his head on the concrete floor of the s h o w e r. (Doc. No. 1.) Griffith momentarily lost consciousness after hitting his head on the floor. When he c a m e to he found himself lying on the outside of the shower. He then noticed Officer A n d e rs o n tapping his shoulder with either his boot or baton and directing Griffith to "take h is bitch ass back to [his] cell!" Before getting up Griffith asked to be taken to the infirmary o r speak with a supervisor. Officer Anderson responded by informing Griffith that "[I]f you 9 d o n 't take your bitch ass back to your cell I"m gonna take this stick to your ass again!" G rif f ith remained lying on the floor for approximately five minutes in a dazed state and u n a b le to stand up. He repeated his request that he either be taken to the infirmary or be a llo w e d to see a supervisor but Officer Anderson simply instructed him to return to his cell. (D o c . No. 1.) A f te r Griffith returned to his cell, Officer Peterson came by to collect his handcuffs. G r if f ith stated he had been returned to his cell without handcuffs and relayed to Officer P e te rs o n his encounter with Officer Anderson. Griffith requested that Officer Peterson allow h im to speak with the shift commander or be taken to the infirmary.2 Officer Peterson in d ic a te d instead that he would have Officer Anderson come talk with Griffith. Forty-five m in u tes later Griffith stopped Officer Tericus Dinkins and reported to him the incident with O f f ic e r Anderson. Officer Dinkins left Griffith's cell area for a few minutes then returned a n d escorted him to the infirmary. (Doc. No. 1.) Officers Anderson and Peterson deny the allegations made against them. Officer A n d e rs o n asserts that Griffith refused orders to approach the shower door so that Officer A n d e rso n could remove his handcuffs. As a result, Officer Anderson opened the shower gate a n d ordered Griffith to exit the shower. Because Griffith did not comply, Officer Anderson 2 Attached to Plaintiff's opposition is an affidavit signed by inmate Lovell who states after returning to his cell from showering on November 23, 2006, he heard a commotion coming from the C-Block shower area. He walked to the front of his cell where he observed Officer Peterson standing at the top of the stair overlooking the C-Block shower area and then saw the guard catch a baton which had been tossed to him from the shower area on C-Block. (Doc. No. 22, Lovell Affidavit.) 10 a p p ro a c h ed Griffith, grabbed him by his left bicep and began escorting him out of the shower c e ll. Griffith resisted Officer Anderson who re-established his hold on Griffith and tugged a t him to remove him from the shower area. As Griffith was being removed from the shower c a g e, Officer Anderson maintains that the inmate failed to step over an eighteen inch ledge a t the door of the shower cell causing him to fall from Officer Anderson's grasp and hit the f lo o r . Officer Anderson helped Griffith to his feet, escorted him to the top of the stairs, re m o v e d his handcuffs, and told him to return to his cell. (Doc. No. 14, Anderson Affidavit.) O f f ic e r Anderson asserts that he returned to the shower block where he completed the re st of the showers. Afterwards he informed Sgt. Smith about the incident with Griffith and in f o rm e d him that he would write up Griffith for disobeying a direct order. Officer Anderson a ls o requested that Sgt. Smith arrange for Griffith to get a body chart "so that self inflected w o u n d s would not appear days later with other accusations to follow." (Doc. No. 14, Exh. 1 .) Defendant Peterson denies the allegations in Griffith's complaint. He maintains that h e did not witness an altercation between Officer Anderson and Griffith, Griffith did not in f o rm him of an incident he had with Officer Anderson, Griffith did not ask him if he could sp e a k to a Shift Commander or go to the infirmary, and he (Officer Peterson) did not supply O f f ic e r Anderson with a baton. (Doc. No. 14, Exh. 2.) C. Official Capacity Claims T o the extent Plaintiff seeks to sue Defendants Anderson and Peterson in their official 11 c a p ac itie s, they are immune from monetary damages. "[A] state official may not be sued in his official capacity unless the state has waived its Eleventh Amendment immunity, see P e n n h u rs t State School & Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 908, 79 L .E d .2 d 67 (1984), or Congress has abrogated the state's immunity, see Seminole Tribe v. F lo r id a , [517 U.S. 44, 59], 116 S.Ct. 1114, 1125, 134 L.Ed.2d 252 (1996). Alabama has not w a iv e d its Eleventh Amendment immunity, see Carr v. City of Florence, 916 F.2d 1521, 1 5 2 5 (11 th Cir. 1990) (citations omitted), and Congress has not abrogated Alabama's im m u n ity. Therefore, Alabama state officials are immune from claims brought against them in their official capacities." Lancaster v. Monroe County, 116 F.3d 1419, 1429 (11 th Cir. 1 9 9 7 ). In light of the foregoing, it is clear that Defendants Anderson and Peterson are state o f f ic ia ls entitled to Eleventh Amendment immunity when sued in their official capacities. T h ese Defendants are, therefore, entitled to absolute immunity from any claim for monetary d a m a g e s asserted against them in their official capacities. D . Individual Capacity Claims i. The Excessive Force Claim D e f en d a n ts Anderson and Peterson argue they are entitled to qualified immunity on G r if f ith ' s claims of excessive force. The law of this Circuit, however, precludes a defense o f qualified immunity in cases alleging excessive force in violation of the Eighth Amendment b e c au s e the use of force "maliciously and sadistically to cause harm" is clearly established 12 to be a constitutional violation. Skrtich v. Thornton, 280 F.3d 1295, 1301 (11 th Cir. 2002), c itin g Hudson v. McMillian, 503 U.S. 1 (1992), and Whitley v. Albers, 475 U.S. 312 (1986). " M o re o v e r, an officer who is present at the scene and who fails to take reasonable steps to p ro te c t the victim of another officer's use of excessive force can be held personally liable for h is nonfeasance." Skrtich, 280 F.3d at 1301. Thus, a qualified immunity defense is not av a ila b le when a plaintiff asserts the use of excessive force and the only question for a f e d era l district court is whether the plaintiff has alleged facts sufficient to survive a motion f o r summary judgment, unless the force used was de minimis. Id. at 1302; see also Hudson, 5 0 3 U.S. at 9-10; Harris v. Chapman, 97 F.3d 499, 505 (11 th Cir. 1996). Accordingly, this c o u rt will consider whether Griffith's allegations that Officers Anderson and Petitioner m a lic io u s ly and sadistically used excessive force against him and/or witnessed the uses of f o rc e without intervening to protect Griffith, which the court must take as true for purposes o f summary judgment, sets forth a violation of his Eighth Amendment rights. In Danley v. Allen, 540 F.3d 1298, 1307 (11 th Cir. 2008), the Eleventh Circuit e x p la in e d that whether a defendant's use of force is excessive, and thus violative of an in m a te 's right to be free from cruel and unusual punishment, "depends on whether the [d ef en d an t's] act `shocks the conscience,' Cockrell v. Sparks, 510 F.3d 1307, 1311 (11 th Cir. 2 0 0 7 ), and it necessarily will if the force " `was applied ... maliciously and sadistically for th e very purpose of causing harm.' " Id. (quoting Whitley v. Albers, 475 U.S. 312, 320-21 (1 9 8 6 ). 13 U n d e r the Eighth Amendment, force is deemed legitimate in a custodial setting a s long as it is applied "in a good faith effort to maintain or restore discipline [ a n d not] maliciously and sadistically to cause harm." Whitley v. Albers, 475 U .S . 312, 320-21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (quoting Johnson v. G lic k , 481 F.2d 1028, 1033 (2 n d Cir.1973)); see also Hudson v. McMillian, 503 U .S . 1, 8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). To determine if an a p p lic a tio n of force was applied maliciously and sadistically to cause harm, a v a rie ty of factors are considered including: "the need for the application of f o r c e , the relationship between that need and the amount of force used, the th re a t reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response." Hudson, at 7-8, 112 S.Ct. 995; s e e also Whitley, 475 U.S. at 321, 106 S.Ct. 1078; Harris v. Chapman, 97 F.3d 4 9 9 , 505 (11 th Cir.1996). From consideration of such factors, "inferences may b e drawn as to whether the use of force could plausibly have been thought n e c es s a ry, or instead evinced such wantonness with respect to the unjustified in f lic tio n of harm as is tantamount to a knowing willingness that it occur." W h itle y , 475 U.S. at 321, 106 S.Ct. 1078 (quoting Johnson, 481 F.2d at 1033). S k rtic h , 280 F.3d at 1300-1301. In Hudson, the Court held that the use of excessive physical force against a prisoner m a y constitute cruel and unusual punishment even though the prisoner does not suffer serious in ju rie s . Id. 503 U.S. at 9; but see Johnson v. Glick, 481 F.2d 1028, 1033 (2 n d Cir. 1973) ( " N o t every push or shove, even if it may later seem unnecessary in the peace of a judge's c h a m b e rs, violates a prisoner's constitutional rights"). An excessive force claim "necessarily e x c lu d e s from constitutional recognition de minimis uses of physical force, provided that the u s e of force is not a sort `repugnant to the conscience of mankind.'" Hudson, 503 U.S. at 91 0 (quoting Whitley, 475 U.S. at 327). See also Smith v. Mensinger, 293 F.3d 641, 649 (3 r d C ir. 2002) (considering the de minimis nature of injuries is an issue of fact to be resolved by th e fact finder based on the totality of the evidence); Brooks v. Kyler, 204 F.3d 102, 103 (3 r d 14 C ir . 2000) (holding that there is "no fixed minimum quantity of injury that a prisoner must p rov e that he suffered" in order to state an excessive force claim) Griffith maintains that Officer Anderson's actions on November 23, 2006 constituted a n unnecessary and excessive use of force because the guard's assault was committed in the a b se n c e of need or provocation and done maliciously and/or sadistically. Griffith further a ss e rts that as a result of Officer Anderson's conduct he sustained numerous bruises and a b ra sio n s , a possible concussion, and also developed an ear infection. Defendant Anderson d e n ie s Griffith's allegations of excessive force and maintains that he only used the amount o f force necessary to remove Griffith from the shower cage during which time the inmate trip p e d and hit the concrete floor. Griffith further claims that Officer Peterson supplied the b a to n used by Officer Anderson during the assault and failed to intervene or prevent the m is a p p lic a tio n of force by Officer Anderson who Griffith contends has a "known pattern of p h ys ic a l abuse of inmates." The court is mindful of the fact that prisoners' non-compliance with the rules and re g u la tio n s of a jail and the orders and directives of their custodians is not easily tolerated in a prison environment where strict adherence to rules and order within the institution's w a lls are mandated for security, safety, and discipline. Nevertheless, Plaintiff maintains that a t no time during the incident in question did he pose a threat to Defendants nor did he ever f a il to obey an order or engage in any combative conduct. Plaintiff, therefore, argues that D e f e n d a n ts' use of force under these circumstances was excessive. Defendants deny all 15 a lleg a tio n s regarding the use of force and/or failure to intervene and maintain the only a m o u n t of force used was that necessary to quell Griffith's resistance in removing him from th e shower and to gain control of him as he struggled with Officer Anderson during the g u a rd 's attempt to remove him from the shower cage.3 V ie w in g the complaint in the light most favorable to Griffith, the court concludes he h a s set forth facts which demonstrate a violation of his constitutional rights. "Having e sta b lish e d a constitutional violation, the next step in the qualified immunity analysis usually is to determine whether the right was clearly established. See Saucier, 533 U.S. at 201, 121 S .C t. at 2156. However, we have held that `there is no room for qualified immunity' in E ig h th and Fourteenth Amendment excessive force cases because they require a subjective elem en t that is `so extreme' that no reasonable person could believe that his actions were la w f u l. Johnson v. Breeden, 280 F.3d 1308, 1321-22 (11 th Cir.2002)." Danley, 540 F.3d at 1 3 1 0 . Under the facts presented by Griffith, disputed issues of material fact exist regarding th e need for the use of force, whether the amount of force used was appropriate, and whether re a so n a b le steps were taken to protect the victim of another officer's use of excessive force. T h u s , Defendants Anderson and Griffith are not entitled to qualified immunity, Id.; Skrtich, 2 8 0 F.3d at 1301, and their request for summary judgment with respect to Griffith's The evidentiary material before the court includes an investigative report about the November 23, 2006 incident prepared by an investigator with the Investigation and Intelligence Division of the ADOC . (Doc. No. 16.) The report includes transcripts of the investigator's interviews with Griffith, Officers Anderson and Peterson, Officer Tericus Dinkins, Nurse Dulaney, inmate Christopher Jordan, and Sergeant Allen Smith. 3 16 e x c e s s iv e force claim is due to be denied. ii. The Deliberate Indifference Claim G rif f ith alleges Officers Peterson and Anderson acted with deliberate indifference to h is serious medical needs by failing to provide him with necessary medical treatment for the in ju rie s he suffered during the assault. Specifically, Griffith asserts that Officer Anderson w a s aware of injuries he suffered from the assault but ignored his request to be taken to the in f irm a ry. Griffith alleges that he also asked Officer Peterson for medical treatment several tim e s after he was returned to his cell but the guard denied his requests. Griffith maintains th a t both correctional officers had a "subjective awareness" of his injuries but acted with d e lib e ra te indifference to his serious medical needs. (Doc. Nos. 1, 22.) According to the unrefuted evidentiary material, Griffith received an initial body c h a rt at 6:15 p.m. on November 23, 2006. The body chart reflects that Griffith complained o f being assaulted by a correctional officer. Nurse Leverette noted Griffith as being alert and o rie n ted to person, place, and time. The nurse's notes further indicated "Resp with ease. Skin w a rm , dry, and intact. Small abrasion to left wrist. No bruises. No cuts. No distress noted." (D o c . No. 14, Exh. 3.) Griffith received a second body chart at 9:25 p.m. on November 23, 2 0 0 6 . Medical personnel's examination of Griffith at this time indicated the following: O - Alert and oriented to person, place, and time. Resp. With e a se . Skin warm, dry, and intact. On second exam minor a b ra sio n noted with no bleeding noted as follows. < 1 cm on 3 r d to e left foot, left posterior thigh 5 cm bruise, 4 cm bruise left la te ra l hip, 3 cm bruise left anterior hip, 3 cm bruise left lateral s h o u ld e r, 5.5 cm abrasion left interior forearm, small abrasion 17 le f t wrist, < 1 cm abrasion left lateral head, < 1 cm superior left e ye b ro w . No distress noted. (D o c . No. 14, Exh. 3.) The next day Griffith's injuries were photographed and documented, and he also p re se n te d at sick call with complaints of severe jaw pain, a bad headache, and pain in his left e a r. On November 27, 2006 medical personnel examined Griffith for his complaint that s o m e th in g was wrong with the left side of his head. Griffith received prescriptions for an a n tib io tic as well as pain medication (motrin). (Doc. No. 14, Exh. 3; see also Doc. No. 45, E x h . C.) To prevail on a constitutional claim concerning an alleged denial of adequate medical t re a tm e n t, an inmate must, at a minimum, show that those responsible for providing the tre a tm e n t acted with deliberate indifference to his serious medical needs. Estelle v. Gamble, 4 2 9 U.S. 97 (1976); Goebert v. Lee County, 510 F.3d, 1312, 1326 (11 th Cir. 2007); Taylor v . Adams, 221 F.3d 1254 (11 th Cir. 2000); McElligott v. Foley, 182 F.3d 1248 (11 th Cir. 1 9 9 9 ); Waldrop v. Evans, 871 F.2d 1030, 1033 (11 th Cir. 1989); Rogers v. Evans, 792 F.2d 1 0 5 2 , 1058 (11 th Cir.1986). Specifically, correctional officers may not subject inmates to " a cts or omissions sufficiently harmful to evidence deliberate indifference to serious medical n e e d s." Estelle, 429 U.S. at 106, 97 S.Ct. at 292; Mandel v. Doe, 888 F.2d 783, 787 (11 th C ir.1 9 8 9 ). When seeking relief based on deliberate indifference of responsible officials, an in m a te is required to establish "an objectively serious need, an objectively insufficient 18 re sp o n s e to that need, subjective awareness of facts signaling the need and an actual in f e re n c e of required action from those facts." Taylor, 221 F.3d at 1258; McElligott, 182 F .3 d at 1255 (for liability to attach, the official must know of and then disregard an excessive risk to the prisoner); Farrow v. West, 320 F.3d 1235, 1243 (11 th Cir. 2003) ("To show that [ a n ] official acted with deliberate indifference to serious medical needs, a plaintiff must satisfy both an objective and a subjective inquiry."). One identified "measure of whether a m e d ica l need is serious enough to satisfy the first element of a deliberate indifference claim is if the need `is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's atten tio n .' Hill, 40 F.3d at 1187 (internal quotation marks and citation omitted)." Danley, 5 4 0 F.3d at 1310-1311. Thus, deliberate indifference occurs only when a defendant "knows o f and disregards an excessive risk to inmate health or safety; the [defendant] must both be a w a re of facts from which the inference could be drawn that a substantial risk of serious h a rm exists and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1 9 9 4 ); Johnson v. Quinones, 145 F.3d 164, 168 (4 th Cir. 1998) (defendant must have actual k n o w le d g e of a serious condition, not just knowledge of symptoms, and ignore known risk to serious condition to warrant finding of deliberate indifference). To be deliberately indifferent, Defendants must have been "subjectively a w a re of the substantial risk of serious harm in order to have had a `" s u f ficien tly culpable state of mind."'" Farmer, 511 U.S. at 834-38, 114 S .C t. at 1977-80; Wilson v. Seiter, 501 U.S. 294, 299, 111 S.Ct. 2321, 2324-25, 1 1 5 L.Ed.2d 271 (1991).... Even assuming the existence of a serious risk of h a rm and causation, the prison official must be aware of specific facts from 19 w h i c h an inference could be drawn that a substantial risk of serious harm e x is ts --a n d the prison official must also "draw that inference." Farmer, 511 U .S . at 837, 114 S.Ct. at 1979. Carter v. Galloway, 352 F.3d 1346, 1349 (11 th Cir. 2001). Thus, for Griffith to avoid s u m m a ry judgment on his deliberate indifference claim, he is "required to produce sufficient e v id e n c e of (1) a substantial risk of serious harm; (2) the defendants' deliberate indifference to that risk; and (3) causation." Hale v. Tallapoosa County, 50 F.3d 1579, 1582 (11 th Cir. 1 9 9 5 ). Griffith states that following the assault, Officer Anderson repeatedly refused his re q u e sts to be taken to the infirmary and threatened him with another assault if he failed to re tu rn to his cell. After returning to his cell, Griffith told Officer Peterson he had just been a ss a u lte d and asked the guard to allow him to either speak to a shift commander or be taken to the infirmary. Griffith contends that Officer Peterson only told him that he would tell O f f ic e r Anderson to come and talk to him and then walked away from the area. A p p ro x im a tely forty-five minutes later another correctional officer walked by Griffith's cell. G rif f ith reported the assault to that guard and asked to be taken to the infirmary. The officer su b se q u e n tly escorted Griffith to the infirmary at approximately 6:15 p.m. for a body chart. (D o c. No. 1 at pgs. 3-4; see also Doc. No. 14, Exh. 3.) Officer Peterson denies that Griffith informed him about being assaulted by Officer A n d e rs o n . Officer Anderson maintains that following the incident in the shower area, he in f o rm e d Sergeant Smith that Griffith should be given a body chart to circumvent self- 20 in f lic te d wounds from appearing a day later as a result of Griffith's fall. Officer Anderson m a in ta in s that Sergeant Smith approved the request for a body chart and subsequently sent C o rr e c tio n a l Officer Tericus Dinkins to escort Griffith for a body chart. (Doc. No. 14, Exhs. 1 , 2.) In his response to Defendants' dispositive motion, Griffith challenges the veracity of O f f ice r Anderson's and Peterson's affidavits and argues the other evidence submitted in s u p p o rt of their dispositive motion, i.e., the medical records and photographs, support his c la im for relief. (Doc. No. 22.) Reading the complaint in the light most favorable to Griffith, Officers Anderson and P e te rs o n were aware of a risk of serious harm to Griffith from repeated baton strikes and h a v in g lost consciousness. Griffith contends Officers Anderson and Peterson knew about h is injuries and as the basis for their knowledge he alleges that Officer Anderson inflicted th e injuries by using a baton and also observed him lose consciousness after he fell and hit h is head on the floor. Griffith further contends that Officers Anderson and Peterson knew th a t Griffith was actually suffering from various injuries because he claims they refused his r e q u e s ts for medical treatment. "When [custodial officials] ignore without explanation a p ris o n e r's serious medical condition that is known or obvious to them, the trier of fact my in f e r deliberate indifference." Bozeman v. Orum, 422 F.3d 1265, 1273 (11 th Cir. 2005) (in te rn a l quotation marks and citation omitted). Griffith complains that Officers Anderson a n d Peterson did just that. With respect to the clearly established right element of a deliberate indifference claim, 21 " [ t]h is is a case in which general legal principles announced by [Eleventh Circuit] decisions in this area of law are enough to make the right violated clearly established." Danley, 540 F .3 d at 1313. As previously determined, Griffith alleges both a serious medical need and the d e lib e ra te indifference of Officers Anderson and Peterson to this need. The allegations in th e complaint are that the defendant correctional officers took no measures to remedy the n e e d and ignored Griffith's requests for medical treatment. "Our earlier deliberate in d if f ere n c e decisions have stated that when [responsible officials] are aware of serious m e d ic a l needs they may not ignore them or provide grossly inadequate care. Bozeman, 422 F .3 d at 1273; McElligott, 182 F.3d at 1256. Although [Griffith's] allegations may later turn o u t to be unfounded, reasonable [officers] would have been aware that the conduct that [ G rif f ith ] alleges violated his clearly established rights." Danley, 540 F.3d at 1313. D e f en d a n ts Anderson and Peterson are, therefore, not entitled to qualified immunity on G rif f ith 's deliberate indifference claim, and their motion for summary judgment with respect to this claim is likewise due to be denied. E. The State Law Claims G rif f ith 's complaint alleges state law claims for assault and battery against Officer A n d e rso n . Because Alabama has long recognized a cause of action for conspiracy to commit a ss a u lt and battery, a defendant need not personally touch the plaintiff to be held liable for a n assault and battery. See Abney v. Mize, 155 Ala. 391, 46 So. 230 (1908). The court, th e r e f o r e , also concludes that Griffith has sufficiently alleged a cause of action against 22 D e f e n d a n t Peterson for conspiracy to commit assault and battery. Although Defendants A n d erso n and Peterson do not specifically address Griffith's state law claims, the court u n d e r s ta n d s them to seek summary judgment against Griffith on all claims asserted against th e m . (Doc. No. 14.) Under Alabama law, assault is defined as "`an intentional, unlawful offer to touch the p e rs o n of another in a rude or angry manner under such circumstances as to create in the m in d of the party alleging the assault a well-founded fear of an imminent battery, coupled w ith the apparent present ability to effectuate the attempt, if not prevented.'" Wright v. W rig h t, 654 So.2d 542, 544 (Ala.1995) (quoting Allen v. Walker, 569 So.2d 350, 351 (A la.1 9 9 0 )). A battery is a successful assault, and consists of touching another in a hostile m a n n e r. Surrency v. Harbison, 489 So.2d 1097, 1104 (Ala. 1986). Also, as noted, a d e f e n d a n t need not personally touch the plaintiff to be held liable for an assault and battery. S e e Abney, 155 Ala. 391, 46 So. 230 (approving trial court's jury instruction that "if Ben A b n e y aided, abetted, or encouraged Dee Abney in entering into or continuing an unlawful a ss a u lt on plaintiff, then he would be responsible for whatever Dee Abney did in the f u rth e ra n c e of such assault, notwithstanding that he may not have explicitly encouraged, a id e d , or abetted any one particular act of defendant Dee Abney."); see also Alabama Pattern J u r y Instructions 5.03 (Civil); Deal by and through Barber v. Hill, 619 So.2d 1347, 1349 (A la .1 9 9 3 ) (citing Abney, supra). As described, infra, Griffith alleges that Defendant Anderson threw open the shower 23 c a g e's steel door very forcefully causing it to strike Griffith, immediately began striking G r if f ith with a baton and his hands, and then jerked Griffith by the arm causing him to lose h is balance on the slippery surface, fall to the floor, and hit his head on the concrete. Griffith m a in tain s that Officer Peterson provided Officer Anderson with the baton he used to assault G r if f ith and then failed to intervene to prevent Officer Anderson's use of force against him. T h e court, therefore, concludes that Griffith has sufficiently alleged a cause of action for a ss a u lt and battery against Officer Anderson and sufficiently alleged a cause of action for c o n sp ira c y to commit assault and battery against Officer Peterson. Accordingly Defendants A n d e rs o n 's and Peterson's dispositive motion on these state law claims is due to be denied. G rif f ith also claims that Officer Peterson exhibited contributory negligence when he f a ile d to take preventative action to curb a known pattern of inmate abuse by Officer A nderso n. Contributory negligence, however, is not a claim for relief but rather an a f f irm a tiv e defense to be used against a claim for relief. See Rule 8(c)(1), Federal Rules of C iv il Procedure. Accordingly, Defendant Peterson is entitled to summary judgment on G r if f ith 's contributory negligence claim. F . The Medical Defendants Griffith alleges that Nurses Leverette and Dulaney were deliberately indifferent to h is serious medical needs when they refused to examine, evaluate, treat, and document his in ju rie s following his altercation with Officer Anderson. In response to the complaint, D e f en d a n ts Dulaney and Everette maintain this case is subject to dismissal because Plaintiff 24 f a ile d to exhaust the administrative remedy provided at the Kilby Correctional Facility prior to filing this complaint as required by the Prison Litigation Reform Act, 42 U.S.C. 1 9 9 7 e (a ). The Prison Litigation Reform Act compels exhaustion of available administrative re m e d ies before a prisoner can seek relief in federal court on a 1983 complaint. S p e c if ic a lly, 42 U.S.C. 1997e(a) states that "[n]o action shall be brought with respect to p ris o n conditions under section 1983 of this title, or any other Federal law, by a prisoner c o n f in e d in any jail, prison, or other correctional facility until such administrative remedies a s are available are exhausted." "Congress has provided in 1997(e)(a) that an inmate must e x h a u st irrespective of the forms of relief sought and offered through administrative r e m e d i e s." Booth v. Churner, 532 U.S. 731, 741 n.6 (2001). "[T]he PLRA's exhaustion re q u ire m e n t applies to all inmate suits about prison life, whether they involve general c irc u m s ta n c es or particular episodes, and whether they allege excessive force or some other w rong." Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion of all available a d m in is tra tiv e remedies is a precondition to litigation and a federal court cannot waive the e x h a u s tio n requirement. Booth, 532 U.S. at 741; Alexander v. Hawk, 159 F.3d 1321, 1325 (1 1 th Cir. 1998); Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378 (2006). Moreover, "the P L R A exhaustion requirement requires proper exhaustion." Woodford, 548 U.S. at 93, 126 S .C t. at 2387 (emphasis added). "Proper exhaustion demands compliance with an agency's d e a d lin e s and other critical procedural rules [as a precondition to filing suit in federal court] 25 b e c a u se no adjudicative system can function effectively without imposing some orderly s tru c tu re on the courts of its proceedings.... Construing 1997e(a) to require proper e x h a u stio n ... fits with the general scheme of the PLRA, whereas [a contrary] interpretation [ a llo w in g an inmate to bring suit in federal court once administrative remedies are no longer a v a ila b le ] would turn that provision into a largely useless appendage." 548 U.S. at 90-91, 9 3 , 126 S.Ct. at 2386-2387. The Court reasoned that because proper exhaustion of ad m inistrat iv e remedies is necessary an inmate cannot "satisfy the Prison Litigation Reform A c t's exhaustion requirement ... by filing an untimely or otherwise procedurally defective a d m in i str a tiv e grievance or appeal[,]" or by effectively bypassing the administrative process s im p ly by waiting until the grievance procedure is no longer available to him. 548 U.S. at 8 3 -8 4 , 126 S.Ct. at 2382; Johnson v. Meadows, 418 F.3d 1152, 1157 (11th Cir. 2005) (inmate w h o files an untimely grievance or simply spurns the administrative process until it is no lo n g e r available fails to satisfy the exhaustion requirement of the PLRA). The record in this case establishes that the health care provider for the Alabama D e p a rtm e n t of Corrections provides a grievance procedure for inmate complaints related to m e d ic a l treatment. (Doc. No. 45, Exh. A.) The evidentiary materials submitted by Defendants d e m o n s tra te that Plaintiff failed to file any grievance with respect to the actions about which h e complains in the instant complaint. Plaintiff does not dispute his failure to exhaust the a d m in is tra tiv e remedy available in the prison system prior to filing this case. The court, th e re f o re , concludes that the claims presented in this cause of action are subject to dismissal 26 a s Plaintiff failed to properly exhaust an administrative remedy available to him which is a p re c o n d itio n to proceeding in this court on his claims. Ngo, 548 U.S. at 87-94, 126 S.Ct. at 2 3 8 4 -2 3 8 8 . G rif f ith is no longer incarcerated at the Kilby Correctional Facility. Thus, the a d m in i s tra tiv e remedy provided by the medical defendants at that facility is no longer a v a ila b le to Griffith. Under such circumstances, dismissal with prejudice is appropriate. B r y a n t, 530 F.3d at 1375 n.1; Johnson, 418 F.3d at 1157; Marsh v. Jones, 53 F.3d 707, 710 (5 th Cir. 1995) ("Without the prospect of a dismissal with prejudice, a prisoner could evade th e exhaustion requirement by filing no administrative grievance or by intentionally filing a n untimely one, thereby foreclosing administrative remedies and gaining access to a federal f o ru m without exhausting administrative remedies."); Berry v. Keirk, 366 F.3d 85, 88 (2nd C ir. 2004) (footnotes omitted) (Inmate's "federal lawsuits . . . properly dismissed with p re ju d ic e " where previously available administrative remedies had become unavailable and n o special circumstances justified the failure to exhaust.). III. CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that: 1 . Defendants Dulaney's and Everette's motion for summary judgment (Doc. No. 45) b e GRANTED to the extent these Defendants seek dismissal of this case due to Plaintiff's f a ilu re to properly exhaust administrative remedies previously available to him at the Kilby C o rre c tio n a l Facility; 27 2 . Plaintiff's claims for injunctive and/or declaratory relief be DISMISSED as moot; 3 . Defendants Anderson's and Peterson's motion for summary judgment on Plaintiff's 1983 excessive force and deliberate indifference claims (Doc. No. 14) be DENIED; 4. Defendant Anderson's motion for summary judgment on Plaintiff's supplemental s ta te law claim for assault and battery (Doc. No. 14) be DENIED; 5. Defendant Peterson's motion for summary judgment on Plaintiff's supplemental s ta te law claim for conspiracy to commit assault and battery (Doc. No. 14) be DENIED 6 . Defendant Peterson's motion for summary judgment on Plaintiff's supplemental s ta te law claim for contributory negligence (Doc. No. 14) be GRANTED; and 7. Plaintiff's 1983 excessive force and deliberate indifference claims and s u p p le m e n ta l state law claims for assault and battery against Defendant Anderson, and P lain tiff 's 1983 excessive force and deliberate indifference claims and supplemental state la w claim for conspiracy to commit assault and battery against Defendant Peterson be SET f o r trial by jury. It is further ORDERED that on or before March 3, 2010 the parties may file objections to the R e c o m m e n d a tio n . Any objections filed must specifically identify the findings in the M a g is tra te Judge's Recommendation to which a party objects. Frivolous, conclusive or g e n e ra l objections will not be considered by the District Court. The parties are advised that th is Recommendation is not a final order of the court and, therefore, it is not appealable. 28 F a ilu re to file written objections to the proposed findings and advisements in the M a g is tra te Judge's Recommendation shall bar the party from a de novo determination by the D is tric t Court of issues covered in the Recommendation and shall bar the party from a tta c k in g on appeal factual findings in the Recommendation accepted or adopted by the D is tric t Court except upon grounds of plain error or manifest injustice. Nettles v. W a in w r ig h t, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en b a n c ), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. D o n e , this 17 th day of February 2010. /s/Terry F. Moorer TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE 29

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