Fisher-El v. Jenkins et al
MEMORANDUM OPINION AND ORDER DENYING 70 MOTION for Summary Judgment for reasons set out herein. Signed by Judge Virginia Emerson Hopkins on 6/2/2016. (JLC)
2016 Jun-02 AM 09:13
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
OFFICER MOHAMMAD JENKINS,
MEMORANDUM OPINION AND ORDER
On January 15, 2016, the sole remaining defendant in this action, Mohammad
Jenkins, filed his second Motion for Summary Judgment (doc. 70; the “Motion”) and
supporting brief (doc. 71) (see also substitute exhibits at doc. 79). Plaintiff, through
counsel, has opposed the Motion. (Doc. 75). Jenkins has replied. (Doc. 71). For the
reasons set out herein, the Motion is due to be, and hereby is, DENIED.
Plaintiff, Manson Fisher-El, is an inmate in the Alabama penal system. On
January 12, 2012, acting pro se, he filed this action pursuant to 42 U.S.C. § 1983
alleging that he has been deprived of rights, privileges, or immunities afforded him
under the Constitution or laws of the United States of America. In his Complaint
(doc. 1), he asserted various claims against various prison personnel. On March 29,
2012, I dismissed all of Plaintiff's claims in this action except the claim of excessive
force against Officer Mohammad Jenkins. (Order, doc. 8). That claim was referred
back to the Magistrate Judge to whom this case had been assigned.
On April 10, 2012, the Magistrate Judge ordered Jenkins to file a special report
responding to that claim. (Order, doc. 11, as modified by Order, doc. 15). Jenkins
filed that special report on August 16, 2012. (Special Report, doc. 19). The
Magistrate Judge notified Plaintiff that the Special Report would be treated as a
motion for summary judgment. On March 13, 2013, Plaintiff responded to the Special
Report. (Doc. 31). On May 15, 2013, the Magistrate Judge entered a Report and
Recommendation (doc. 32; “R&R”), recommending that Jenkins’s motion for
summary judgment, as set out in the Special Report, be denied. (Id.). On May 28,
2013, Jenkins filed Objections (doc. 33) to the R&R. On Augst 26, 2013, I adopted
(as supplemented by me) the R&R, denied summary judgment, and ordered Jenkins
to file an answer to the Complaint. (Order, doc. 34). On September 16, 2013, Jenkins
filed his Answer. (Doc. 36).
On February 21, 2014, the Magistrate Judge granted Plaintiff’s motion that
counsel be appointed to represent him and appointed attorney Matthew Swerdlin.
(Order, doc. 53). On August 10, 2015, I entered a Scheduling Order setting out
certain deadlines and procedures. (Order, doc. 61). The deadline to file any motion
for summary judgment was set at January 15, 2016. (Id.). Further, as to potentially
dispositive motions, I said:
All potentially dispositive motions must be filed by January 15, 2016.
Any motion for summary judgment filed in this action, and all responses, must comply with all requirements, including response times,
of Appendix II to the ALND Uniform Initial Order, found on this
Court’s website at www.alnd.uscourts.gov/hopkins/hopkinspage.htm.
Counsel shall refrain from filing any motion for summary judgment
where a reasonable person would recognize that genuine issues of
material fact exist.
(Doc. 61 at 5)(emphasis in original).
On January 15, 2015, Jenkins filed the pending Motion for Summary Judgment,
which is in fact his second such motion, given that his Special Report was treated as
a motion for summary judgment (and denied as such). That motion is now under
submission and, for the reasons set out below, is due to be, and hereby is, DENIED.
ADOPTION BY REFERENCE.
I adopt by reference the standards applicable to summary judgment as those
standards are set out in my prior Order (doc. 34) denying summary judgment. I further
adopt by reference the facts and law as found by the Magistrate Judge in his R&R
(doc. 32) as adopted after supplementation by me in my Order (doc. 34) denying
In his reply brief, doc. 81, Jenkins lists, for the first time in this briefing, a Statement of
Undisputed Facts. In doing so, Jenkins violates the procedures set out in Appendix II to the court’s
I have carefully reviewed the pleadings and evidence relating to the pending
motion for summary judgment. Apparently recognizing that he is asking me to review
the same facts through the same legal lens and reach a different result, Jenkins
pretends that he has “new evidence.” (Doc. 71 at 5; “[i]n light of the new evidence
submitted herein...”). He does not. What he has is newly created evidence. There is
no reason that the Affidavits or body charts that Jenkins submitted could not have
been submitted at the time of the Special Report.2 Additionally, viewing the facts in
the version most favorable to Plaintiff, as I must at summary judgment, Dr. Roddam’s
Affidavit goes more to damages than to whether or not a Constitutional injury has
occurred. Further, neither a court nor a jury is required to accept the statement of any
expert witness.3 The finder of fact will give all testimony the weight that the finder
of fact determines it deserves. Finally, Jenkins may not like the law applicable to
excessive force cases where the facts fail to justify any force, but he has to live with
Uniform Initial Order, which I directed all parties to comply with in my Scheduling Order (doc. 61).
Accordingly, I will not consider Jenkins’s Statement of Undisputed Facts as set out in doc. 81.
I agree with Plaintiff (see doc. 81 at 4, fn. 1) that “the characterization of Mr. Culver as
an expert stains credulity and does not meet the criteria [applicable to expert opinions].” I further
note that Dr. Roddam was Plaintiff’s treating physician at the time of the incident that is the basis
of this lawsuit.
I question whether Dr. Roddam is qualified, as Plaintiff’s treating physician still employed
by the prison where Plaintiff is incarcerated, to give all of the opinions he gives about Plaintiff and
about Jenkins. But that issue remains for another day.
it unless it is changed by the Supreme Court of the United States or the Eleventh
Circuit Court of Appeals.4
As summarized in the R&R, Plaintiff claims that “Officer Jenkins entered his
cell and ‘dived on my back startling me awake,’ sprayed him with pepper spray,
punched him in the head, handcuffed and pulled him out of his cell.” (Doc. 32, at 5).
Defendant disputes these factual findings, but that dispute does not make these factual
findings undisputed. Viewing the facts in the light most favorable to Plaintiff, he was
attacked by Jenkins while Plaintiff was asleep, that is, totally without penological
justification. If a jury believes Plaintiff’s version of the facts, then it can — but is not
required to — reasonably find that Jenkins did not act in good faith to restore order
and discipline, but rather acted maliciously and sadistically for the very purpose of
causing harm and that, accordingly, Plaintiff’s Constitutionally-protected rights were
violated. Further, regarding Jenkins’s attempt to once against conflate injury with
force, I reiterate:
[W]here there is no arguable basis for using any force, the use of force
is objectively unreasonable, even if the injury is de minimis. Wilkins v.
Gaddy, 559 U.S. 34, 38, 130 S.Ct. 1175, 1178 - 1179 (2010). (Explicating Hudson and reversing district court for granting summary judgment
to prison guard on the basis that any injuries suffered by the prisoner
were de minimis.) “Injury and force, however, are only imperfectly
correlated, and it is the latter that ultimately counts. An inmate who is
To be clear, I am not stating what the facts actually are; that is for a jury to decide.
gratuitously beaten by guards does not lose his ability to pursue an
excessive force claim merely because he has the good fortune to escape
without serious injury.” Wilkins, 130 S.Ct. at 1178 - 1179.
The Eighth Amendment prohibition of cruel and unusual
punishment requires prison conditions to meet a certain
constitutional minimum. One such constitutional minimum
is that prison officials must not engage in the “unnecessary
and wanton” infliction of pain. Among actions that are
considered “unnecessary and wanton” are those that are
totally without penological justification.”
Reid v. Secretary, FL Dept of Corr., 486 Fed.Appx. 848, 851, 11th Cir.
(Doc. 34 at 8). Once again, I reject Jenkins’s attempt to conflate injury and force
when the facts viewed most favorably to Plaintiff show actions that are totally without
Having carefully reviewed and all the materials in the court file, including the
pleadings and evidence filed regarding Jenkins’s Motion for Summary Judgment, I
hereby find that such motion is due to be, and hereby is, DENIED.
DATED this 2nd day of June, 2016.
VIRGINIA EMERSON HOPKINS
United States District Judge
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