Price v. Giles et al (INMATE2)

Filing 35

ORDERED that the 34 motion to stay be and is hereby DENIED, as further set out in order. Signed by Honorable Judge Charles S. Coody on 4/1/2015. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
TIMOTHY PRICE, AIS # 172825,
Plaintiff,
v.
SGT. CEDRIC SMITH,
Defendant.

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CIVIL ACTION NO.: 2:12cv567-WHA
[WO]

ORDER
On March 17, 2015, the court set this matter for an evidentiary hearing because the
court concluded that there are genuine disputes of fact about the plaintiff’s claim of excessive
force. See Doc. # 32. On March 27, 2015, the defendant filed a motion to stay the
evidentiary hearing asserting that because the plaintiff had failed to respond to the
defendant’s special report with an affidavit or other evidence, he is entitled to summary
judgment based solely on his special report. See Doc. # 34.
In his verified complaint, Plaintiff Price alleges that Defendant Smith physically
assaulted Price while incarcerated at the Bullock Correctional Facility, in Union Springs,
Alabama.1 In his complaint, Price asserts that defendant “Smith used profane, abusive and
threatening language in communication with Plaintiff Price and assaulted him on April 17,
2011, and refused to allow him to see a nurse to have a body chart perform (sic) and told
Plaintiff Price to sign up for a sick call. Plantiff (sic) Price signed up for sick call and saw
the doctor for an injury to his ear that was caused by Defendant C. Smith.” (Doc. # 1,
Compl. at 3).
The law is clear that the court must consider the facts contained in Price’s verified
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Price is currently incarcerated at Donaldson Correctional Facility.

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complaint when considering the motion for summary judgment. See Caldwell v. Warden,
FCI Talladega, 748 F.3d 1090 (11th Cir. 2014) (“We also credit ‘specific facts’ pled in
plaintiff [Price’s] sworn complaint when considering his opposition to summary judgment.”).
See also Ivory v. Warden, Gov. of Ala., 2015 WL 327887, *3 (11th Cir. 2015) (same);
Stallworth v. Tyson, 578 F. App’x. 948, 950 (11th Cir. 2014) (“The factual assertions that
[Plaintiff] made in his amended complaint should have been given the same weight as an
affidavit, because he verified his complaint . . . made under penalty of perjury, and his
complaint meets Rue 56's requirements for affidavits and sworn declarations.”).
A review of the plaintiff’s sworn complaint demonstrates that there are genuine
disputes of fact regarding what occurred between Price and Smith on April 17, 2011, which
require an evidentiary hearing to resolve. Accordingly, upon consideration of the motion to
stay (doc. # 34) and for good cause, it is
ORDERED that the motion to stay (doc. # 34) be and is hereby DENIED.
Done this 1st day of April, 2015.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

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