King v. Anderson, et al (INMATE 1)

Filing 123

OPINION AND ORDER that Plaintiffs 120 motion for reconsideration of the motion to proceed in forma pauperis on appeal is GRANTED. The courts August 4, 2014 order (Doc. # 117) is VACATED, and Plaintiffs motion to proceed in forma pauperis on appeal (Doc. # 115) is GRANTED. Signed by Chief Judge William Keith Watkins on 08/12/2014. (ydw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ALBERT KING,
Plaintiff,
v.
OFFICER REGINALD
ANDERSON, et al.,
Defendants.

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CASE NO. 2:12-CV-190-WKW

OPINION AND ORDER
Before the court is Plaintiff Albert King’s motion for reconsideration of the
court’s order denying his motion to proceed in forma pauperis on appeal. (Doc.
# 120.) Upon consideration of Plaintiff’s motion for reconsideration, the court
concludes that the motion is due to be granted.
I. BACKGROUND
Plaintiff claims that his constitutional rights were violated by four jail
officers1 who are employed at the Montgomery County Correctional Facility and
one doctor who treats inmates at the same facility but who is employed by a private
company. While in custody at the facility, Plaintiff was attacked by two fellow
inmates, resulting in a fractured bone in Plaintiff’s hand, among other lesser

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The court concluded that claims against one of the Defendant-Officers had been
abandoned. (Doc. # 106, at 12–13.)

injuries. One Saturday morning, officers allowed a group of inmates to retain
possession of a broom, ordinarily used by the inmates for cleaning their cells, for
the purpose of reaching a television to change the channel. Plaintiff claims that the
officers were deliberately indifferent to a substantial risk of harm by allowing the
inmates to possess and control the broom because another inmate used the broom’s
handle as a weapon against Plaintiff.

He also claims that the officers were

deliberately indifferent in their failure to timely intervene to stop the attack.
Finally, Plaintiff alleges that the doctor who treated him was deliberately
indifferent to his serious medical needs because the provision of treatment by an
outside orthopedist was delayed.
On June 2, 2014, the court entered a memorandum opinion and order
granting summary judgment in favor of all Defendants on each of Plaintiff’s three
§ 1983 claims for deliberate indifference. (Doc. # 106.) The opinion included a
footnote that Plaintiff failed to furnish the Clerk of the Court with electronic
evidence including a video. (See Doc. # 106, at 5 n.5). Final judgment in favor of
Defendants was entered the same day that the summary judgment opinion issued.
(Doc. # 107.)
Twenty-eight days later on June 30, 2014, Plaintiff’s counsel filed a notice
with the court that she had furnished Plaintiff’s electronic evidence to the
chambers of the undersigned, on a flash drive attached to a three-ring binder of the
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courtesy copy of Plaintiff’s briefs in opposition to Defendants’ motions for
summary judgment. (See Doc. # 109.) Plaintiff’s counsel also left a message with
chambers staff describing the flash drive. The same day, Plaintiff filed a motion to
alter, amend, or vacate the court’s judgment, or in the alternative, to reconsider its
summary judgment ruling. (Doc. # 110.)
The court responded by locating the flash drive described by Plaintiff’s
counsel, which was in the courtesy copy binder furnished to chambers, but which
had not been filed with the Clerk of the Court. The court reviewed the electronic
evidence, which included video footage and x-ray evidence, and found that the
evidence had no impact upon its prior conclusions because the evidence confirmed
undisputed facts. As a result, the court entered an opinion and order on July 2,
2014, denying Plaintiff’s motion and directing the Clerk of the Court to file
Plaintiff’s electronic evidence as Exhibits E and N to Plaintiff’s briefs in
opposition to Defendants’ motions for summary judgment. (Doc. # 111.) The
court also briefly considered and rejected Plaintiff’s contention that the court’s
summary judgment opinion and order failed to address his arguments. The court
pointed Plaintiff to the relevant sections of analysis discussing each of the
contested claims. (Doc. # 111, at 5–6.)
On July 9, 2014, Plaintiff’s counsel called an employee of the Clerk of the
Court to make certain that the law clerk assigned to the case, who counsel called
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the “kid who lost the video before kicking [her] case out,” actually had provided
the Clerk of the Court with Plaintiff’s electronic evidence. The employee assured
counsel that the evidence was in the file in the Clerk’s Office. Her recorded
message was forwarded to chambers.
On August 1, 2014, Plaintiff filed a notice of appeal. Plaintiff appeals the
court’s entry of Documents 106, 107, and 111. (Doc. # 112.) Plaintiff also filed a
motion to proceed in forma pauperis on appeal. (Doc. # 115.) The court entered
an order on August 4, 2014, denying the motion and certifying the appeal as not
taken in good faith. (Doc. # 117.) In that order, the court certified, pursuant to 28
U.S.C. § 1915(a)(3), that Plaintiff’s appeal is not taken in good faith – in other
words “frivolous” or lacking in “substantive merit.” (Doc. # 117, at 1.)
Plaintiff promptly filed a motion for hearing, (Doc. # 118), which the court
has construed as containing a motion for reconsideration of its August 4, 2014,
order denying Plaintiff’s motion for leave to proceed in forma pauperis on appeal.
II. DISCUSSION
Attached to Plaintiff’s motion to proceed in forma pauperis is the form
required by the Eleventh Circuit Court of Appeals, which requires Plaintiff to
identify his issues on appeal. (Doc. # 115-1.) Plaintiff identified three issues on
the form.

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First, Plaintiff proposes that this court “erred by dismissing the case without
considering material video and x-ray evidence that was lost by the district court’s
staff.” (Doc. # 115-1, at 1.)
Second, Plaintiff suggests that this court “erred by dismissing the case
without ever considering Plaintiff’s primary argument, of first impression in this
circuit, that the willing and knowing introduction of a weapon into a prison by staff
members to be used for improper purposes in violation of prison policy and federal
law, was the creation of, ratification of, and deliberate indifference to the inherent
danger and imminent threat posed by such officers’ actions resulting in physical
damage to Plaintiff.” (Doc. # 115-1, at 1.)
Third, Plaintiff asserts that this court “erred when it claimed the video the
[c]ourt staff lost made no difference in the outcome of the case when the video
shows the officers watching the inmates use the weapon, in this case a broom stick,
to change the channels on a television set, proving that they ratified and/or allowed
such improper use of an item that is normally accounted for and locked away from
prisoners when not being used for cleaning purposes.” (Doc. # 115-1, at 1.)
The question is whether all of these issues are frivolous. An appeal is
“frivolous” where “none of [its] legal points are arguable on their merits.” Neitzke
v. Williams, 490 U.S. 319, 325 (1989) (quoting Anders v. California, 386 U.S. 738
(1967)) (alterations omitted).
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A.

The Court’s Non-Consideration of Electronic Evidence
In his first issue statement, Plaintiff accuses the court of erring in losing his

electronic evidence and thus, not considering it when entering summary judgment
in Defendants’ favor. However, there is no dispute that Plaintiff’s counsel did not
furnish the electronic evidence to the Clerk of the Court.

When reviewing

Plaintiff’s summary judgment submissions, the court sought the electronic
evidence from the Clerk’s Office, and it was not to be found. The court even asked
the Clerk’s Office to call Plaintiff’s counsel about the apparent absence of the
evidence. When Plaintiff’s counsel did not respond, the court proceeded without
the evidence. It was not erroneous for the court to ignore what was not in the
record, and therefore, Plaintiff’s first issue on appeal is frivolous and not taken in
good faith.
B.

The Court’s Subsequent Review of the Electronic Evidence
Plaintiff similarly contends in her third issue statement that the court erred

by ruling that the non-considered video evidence had no impact upon the court’s
original analysis and conclusions. Plaintiff avers that the video evidence shows
inmates using the broom stick to change the channel on a television, and indeed, it
does. But Officer Anderson admitted allowing the inmates to use the broom for
the purpose of changing the channel on the morning that Plaintiff was injured.
(See Doc. # 106, at 3–4.) Officer Postell also admitted seeing the inmates with the
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broom prior to the fight. (See Doc. # 106, at 3 n.3.) Hence, the court’s analysis
proceeded under these representations, which are consistent with what the video
footage shows. (See Doc. # 106, at 19.)
The court specifically addressed these facts in its July 2, 2014 opinion and
order, (see Doc. # 111 at 4 n.3), and does so again in view of Plaintiff’s persistence
in alleging that the court has committed error with respect to the electronic
evidence. Plaintiff’s deliberate indifference claims were not analyzed on mistaken
factual information. It was not error, therefore, when the court denied Plaintiff’s
motion to alter, amend, or vacate its judgment. The court deems Plaintiff’s third
issue on appeal as frivolous and not taken in good faith.
C.

The Novelty of Plaintiff’s Claim for Deliberate Indifference to
Substantial Risk of Serious Harm
Finally, in Plaintiff’s second and third issue statements, he asserts that the

court did not consider his primary argument that the Defendant-Officers’
entrustment of a weapon (i.e., the broom handle) to the inmates for an improper
purpose (i.e., to change the television channel rather than to sweep their cells)
constitutes deliberate indifference to a substantial risk of serious harm. Plaintiff
also asserts that the question is one of first impression on the Eleventh Circuit.
As stated previously, the court did consider Plaintiff’s argument, but
concluded that under the facts of this case, Plaintiff failed to show “a strong
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likelihood rather than a mere possibility” that an inmate in possession of a broom
handle could pose a threat of serious harm to another inmate. (Doc. # 106, at 20.)
The court also found that, even if Plaintiff could show the requisite “strong
likelihood” of harm, he had not shown how the Defendant-Officers’ conduct
amounted to “more than mere negligence.”2

(Doc. # 106, at 21.)

The court

remains convinced that Plaintiff did not show that Defendants acted with a
culpable state of mind as opposed to negligence. See Farmer v. Brennan, 511 U.S.
825, 834 (1994) (“To violate the Cruel and Unusual Punishments Clause, a prison
official must have a sufficiently culpable state of mind.”). But the court agrees
with Plaintiff that the question is not posed in bad faith, and is therefore not
frivolous in the context of a motion for leave to proceed in forma pauperis.
III. CONCLUSION
In accordance with the foregoing analysis, it is ORDERED that Plaintiff’s
motion for reconsideration of the motion to proceed in forma pauperis on appeal is
GRANTED. The court’s August 4, 2014 order (Doc. # 117) is VACATED, and
Plaintiff’s motion to proceed in forma pauperis on appeal (Doc. # 115) is
GRANTED.

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There is some disharmony in Eleventh Circuit deliberate indifference case law about
whether deliberate indifference is evidenced by conduct that is more than mere negligence as
opposed to more than gross negligence. Here, the court applied the “more than mere
negligence” standard, which is more lenient to Plaintiff.
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DONE this 12th day of August, 2014.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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