Burke v. Bowns et al

Filing 56

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 9/29/14. (SAC )

FILED
2014 Sep-29 AM 11:26
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
STEPHEN G. BURKE,
Plaintiff,
v.
T. BOWNS, W. TIDWELL, et al.,
Defendants.

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) Case No. 1:11-cv-00180-KOB-JEO
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MEMORANDUM OF OPINION
The magistrate judge filed a report and recommendation on July 9, 2014,
recommending that the defendants’ motion for summary judgment be granted and this
cause be dismissed with prejudice. (Doc. 50). On August 20, 2014, the plaintiff filed
thirty-two pages of objections (doc. 54), as well as a motion to amend his previously
filed response to the special report (doc. 55).
The plaintiff first complains that the discovery process was patently unfair and
one-sided. (Doc. 54 at 2). He complains that when his first request for production
of documents, filed before the defendants had submitted their special report, was
denied (see doc. 20) the court’s statement that “the parties were specifically informed
that there would be no additional discovery allowed without express leave of the
court” meant to him that he would be informed when he could resubmit his request,
and should not request discovery until he was so informed. (Id.) The plaintiff states

that he was “never again given, or informed of an opportunity to request discovery
items.” (Id.) Review of the magistrate judge’s order reveals that this argument is
frivolous; in addition to informing the parties that no additional discovery would be
allowed without express leave of the court, the magistrate judge informed the parties
how to obtain leave of court, instructing that “the moving party must file with the
court a motion specifically identifying the nature of the discovery sought and the
reason the initial disclosures provided hereinabove were inadequate to provide the
information sought by the discovery.” (Doc. 20 at 1). Thus, the magistrate judge
explained to the plaintiff the steps he should take if he believed he needed discovery;
the plaintiff never took advantage of that process.
The plaintiff also complains that on April 22, 2014, the magistrate judge
ordered the defendants to produce “certain discovery items”(see doc. 42) but the
plaintiff was never made aware of what evidence was actually turned over. (Doc. 54
at 2). That order directed the defendants to produce any recordings made which
depicted any events alleged in the initial complaint. (Doc. 42). The defendants filed
a response stating that video recordings were obtained and would be produced. (Doc.
44). Contemporaneously with that response, the defendants filed a motion for
protective order (doc. 45), which the magistrate judge granted (doc. 46), and the DVD
was filed under seal. (Doc. 47). Thereafter, the plaintiff filed a motion for
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appointment of counsel, but never mentioned the video recordings, or sought leave
of court to view them, either in that or by separate motion. (Doc. 48). The magistrate
judge denied the motion to appoint counsel. (Doc. 49). The magistrate judge entered
his report and recommendation on July 9, 2014, and gave the plaintiff fifteen days to
file objections. (Doc. 50). The plaintiff sought additional time to file his objections
(doc. 51), and was given until August 25, 2015 to do so. (Doc. 52). In his motion for
an extension of time, the plaintiff never sought to view the video recordings. The
plaintiff’s argument now, that the court never permitted him to view the DVD lacks
merit, given that he never sought leave of the court to do so.
The plaintiff objects to the magistrate judge characterizing his unsworn
response to the defendants’ special report as an “unsworn response.” (Doc. 54 at 4).
The plaintiff filed a letter to the clerk of court on July 25, 2014, explaining that the
sworn declaration accompanying his response to the special report, which he had
attached as pages 78-83 of that document, had been separated from the response and
he had intended that declaration to make his entire response a “sworn” document
(doc. 53), and that he has also filed a motion to amend his response to reflect that he
intended it to be submitted under oath. (Doc. 55). The plaintiff’s objection is
overruled, and his motion is due to be denied. The court notes the plaintiff filed a
response to the special report totaling 98 pages. (See Docs. 39, 40). The response
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was divided into a 77-page typed document accompanied by a hand written sworn
“Declaration in Opposition to Defendants Motion for Summary Judgment,” which the
plaintiff argued created a genuine issue of material fact, “as explained in the brief
submitted with this declaration.” (Doc. 40 at 5). Moreover, the magistrate judge
considered the relevant arguments presented in the plaintiff’s reply brief.
To the extent that the plaintiff argues that “glaring discrepancies” exist between
his recollection of the events and the summarization in the report of the depiction of
the events on the videotape, having reviewed the DVD, the court finds the plaintiff’s
objections to be unpersuasive as any factual discrepancies are immaterial. The court
will briefly address each objection, in turn.
A.

Objections to Factual Findings
The plaintiff first clarifies that the cell move was not a routine cell rotation, but

rather a forced cell move, and explains why he refused to cuff up as ordered. (Doc.
54 at 5). The plaintiff explains he was going to be moved to another tier into a double
cell, and believed that his life could be in danger because he would have been placed
in a cell with another inmate who “may have had a desire to take his life.” (Doc. 54
at 5). He further states that the administration enjoyed the “blood sport” of placing
rival gang members or known enemies into the same cell and encouraging them to
fight each other. (Id.) The plaintiff does not allege that he was scheduled to be
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placed into a cell with a known enemy. The nature of the cell move is not relevant
under the circumstances. Regardless of the plaintiff’s rationale for not following a
direct order to be handcuffed for the cell move, he does not dispute that he refused
to follow the order, which necessitated the use of force by the defendants.
The plaintiff objects to the finding of the magistrate judge on page 8 of the
Report that the evidence did not support the plaintiff’s assertion that he was burned
and temporarily blinded by the spraying of the chemical agents into his cell. (Doc.
54 at 6). The plaintiff asserts that two full cans were sprayed into his cell, in violation
of the policy that states only three sprays of a two-second duration may be sprayed
during a forced cell extraction. (Id.) The plaintiff also objects to the magistrate judge
characterizing him as non-compliant when he failed to go to the door to submit to
restraints after the spray was employed, arguing that laying on the bed with his arms
out to his sides was as compliant as he could be after being subjected to the spray.
(Id.)

Even accepting as true plaintiff’s allegations that the spray did burn his eyes,

making him temporarily unable to see, and that more than three short bursts of the
agent were sprayed into his cell, the use of the spray under these circumstances would
still not constitute a constitutional violation.
Regarding the allegations related to the events of July 9, 2009, the plaintiff
objects to the magistrate judge’s statement on page 9 of the Report that he was
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“walked” to the shower. (Doc. 54 at 6). He explains that he was carried there,
“superman style,” and his feet did not touch the ground. (Id.) The Report oes not
state that the plaintiff himself walked to the shower following the incident. Whether
the plaintiff was carried with his feet not touching the ground or was led there while
on his feet is not material to the decision in this matter. In any event, review of the
DVD reveals that the plaintiff was led, bent over and walking on his own power with
his feet touching the floor, from his cell to the shower. (Doc. 47, DVD of 7.8.09 at
14:15-15:30).
The plaintiff further objects to the statement on page 10 in the Report that
Nurse Practitioner Paco found no evidence of injury, and argues that medical records
prove Paco had been untruthful. (Doc. 54 at 7). The evidence to which the plaintiff
refers shows that the day after the incident, the plaintiff complained to RN Bradley
Cook that gas was still on his skin and clothes, which burned him, and that the
plaintiff wanted to document an abrasion above his right eye, which Cook noted to
be superficial. (Doc. 32, Ex. 21 at 9). Evidence also shows that on July 15, 2009, the
plaintiff complained to PA Marisigan that he had a rash all over his body, stated his
face hit the cement during a forced cell move, and asked for an ex-ray of his cheek
bone and to document his injuries for “future court litigation.” (Doc. 32, Ex. 21 at
15). PA Marisigan noted a rash on the plaintiff’s body, mild tenderness to the right
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side of his face, and prescribed an injection and cream for the rash. (Id. at 15-16).
The fact that the plaintiff later developed a rash and had a superficial scrape on his
cheekbone does not establish Nurse Paco lied when he documented no injuries on the
date of the incident, nor does it establish that excessive force was used against the
plaintiff.
The plaintiff objects to the magistrate judge’s statement that he failed to refute
that he received proper medical care or three meals a day, and argues the record
shows that he was not given proper medical care and that he was given non-kosher
meals that he refused to eat. (Doc. 54 at 7). Both arguments have no bearing on the
final disposition of this case. The court finds that the record establishes that the
plaintiff did receive adequate medical care. The plaintiff’s argument that he was
served non-kosher food is unrelated to either of the three claims pending in this
action. He never raised this claim in his original or amended complaint. Although
in later pleadings the plaintiff stated that he had been put on an illegal sack diet, and
submitted within the 40 pages of past grievances he filed with the intent to “exhaust
for Bivens action,” copies of grievances complaining that his tuna, sardines, and
tomato juice were served in open containers in violation of kosher directives and he
was served non-kosher sack lunches (see doc. 39 at 35-75), he never raised this issue
as a discrete claim in his Complaint in this action.
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The plaintiff objects to the magistrate judge concluding that he was given a
decontamination shower after the incident, and with the report stating that the video
showed no evidence of severe burns or of the plaintiff complaining about the same.
(Doc. 54 at 7). The plaintiff, who initially asserted he was not permitted to shower,
now concedes that he was placed in the shower, but argues he was clothed and under
the water for only a short time. He also does not contradict the report’s statement
regarding his failure to complain of the burns immediately after the event, but
explains that the burns did not occur immediately, but developed over time. (Id.)
While the plaintiff contends the shower was not sufficient to have decontaminated his
clothing, he was nonetheless given a shower. Regarding the “burns,” the medical
evidence shows that a rash developed on the plaintiff’s body and that he was
medically treated for that rash.
Regrading the September 22, 2009 incident, the plaintiff objects to the
magistrate judge stating on page 12 of the Report that the plaintiff was being escorted
by Humphrey and Mayer.1 (Doc. 54 at 8-9). The plaintiff also objects to the finding
that Officer Mayer helped Tidwell take the plaintiff to the ground, and reiterates his
assertion that after the plaintiff sneezed on Tidwell, Tidwell slammed him to the floor

The Report actually states that the plaintiff was being escorted by Tidwell
and Mayer. (See Doc. 50 at 12). It does not mention Humphrey. Id.
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while he was in full restraints and placed him in another illegal arm bar hold. (Id.)
The plaintiff surmises that this incident was filmed by the tier camera in the area and
should still be available to support his version of the events. (Doc. 54 at 9). Even
accepting as true plaintiff’s version of the events that he innocently sneezed on
defendant Tidwell, who then took him to the ground and held his head immobile with
no help from Mayer, it remains undisputed that Tidwell believed the plaintiff had spit
on him and for that reason took him to the floor and held him there until additional
staff arrived. Thus, the undersigned concurs with the magistrate judge’s conclusion
that the undisputed facts simply do not support the inference that Tidwell used force
against the plaintiff in a wanton manner for the malicious and sadistic purpose of
causing harm.
Regarding the incident of October 22, 2009, the plaintiff objects to the
magistrate judge stating that the plaintiff threw a smoldering sheet or towel under the
door. (Doc. 54 at 10). The plaintiff now does not deny throwing feces on two staff
members or placing a pencil in the food slot lock to jam it, (see R&R doc. 50 at 13),
but contends that the smoking item originated from a different cell. (Doc. 54 at 10).
The plaintiff further states Tidwell emptied the contents of an entire fire extinguisher
into his cell, and argues that cameras should have caught that on film for the court’s
consideration. (Id.) Tidwell testified that he sprayed the fire extinguisher at the fire
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until it was extinguished. (Doc. 32, Ex. 13). Even assuming the plaintiff did not
throw the burning item from his cell and that while attempting to extinguish the fire,
Tidwell had sprayed the fire extinguisher into the plaintiff’s cell, the court finds no
Eighth Amendment violation. Regardless of how the fire began, Tidwell was
justified in taking steps to extinguish it.
The plaintiff objects to the magistrate judge’s finding on page 15 of the Report
that a blanket was placed over him once he was placed in four point restraints. (Doc.
54 at 10). Review of the DVD supports the magistrate judge’s finding. (Doc. 47,
DVD of 10.22.09 at 9:30). Thus, the objection lacks merit.
B.

Objections to Analysis and Conclusions
In addition to the myriad of factual objections, the plaintiff objects to the

conclusions reached by the magistrate judge. He again argues that the video evidence
should support his contention that his Eighth Amendment rights were violated,
complains that the defendants did not produce any video evidence taken from the tier
cameras, continues to explain why he refused to comply with orders, and takes issue
with being called a management problem.2 (Doc. 54 at 11-15).
The plaintiff also object to mention of defendant Carter within the Report
and Recommendation. (Doc. 54 at 15). It appears a typographical error occurred;
the report inadvertently referred to defendant Clay as defendant Carter. (See Doc.
50 at 33-34). The plaintiff’s objection is well taken, but immaterial to the
resolution of this case, and, therefore, is overruled.
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Having carefully reviewed and considered de novo all the materials in the court
file, including the report and recommendation and the objections filed by the plaintiff,
and the DVD, the court finds that the magistrate judge's report is due to be and is
hereby ADOPTED and his recommendation is ACCEPTED.
While immaterial factual discrepancies may well still remain, the court
EXPRESSLY FINDS that no genuine issues of material fact exist and that the
defendants are entitled to judgment as a matter of law. Accordingly, defendants'
motion for summary judgment is due to be GRANTED, and the court finds that
summary judgment is due to be entered in favor of the defendants and against the
plaintiff. As such, the court will direct the Clerk to close the case.
To the extent the plaintiff objects to not being afforded the opportunity to view
the DVD evidence in this case, the undersigned notes that the plaintiff never filed a
motion seeking leave to do so, and moreover, that no prejudice resulted from him not
viewing it. To the extent the plaintiff complains that other video evidence must exist
and, within the body of his objections, requests the court to issue a new discovery
order seeking the same, his request is due to be DENIED. For the reasons previously
stated, the plaintiff’s motion to amend his initial response to the defendants’ special
report is also DENIED.
A Final Judgment will be entered.
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DONE and ORDERED this 29th day of September, 2014.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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