Smith v. Jefferson County Sheriff et al

Filing 28

ORDER-re: R&R 24 . The court is of the opinion that the magistrate judge's report is due to be and is hereby ADOPTED and the recommendation is ACCEPTED. The dfts' motion for summary judgment is GRANTED in part and DENIED in part as set out. Pltf's motion for summary judgment is DENIED. Dfts Leon, Scott, Sander, Watts, and Hughes are hereby ORDERED to file an answer within twenty (20) days. Signed by Judge Sharon Lovelace Blackburn on 8/25/2015. (AVC)

FILED
2015 Aug-25 PM 03:14
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANTHONY SMITH,
Plaintiff,
vs.
JEFFERSON COUNTY SHERIFF,
et al.,
Defendants.

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) Case No. 2:13-cv-00852-SLB-JEO
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ORDER

The magistrate judge filed a report and recommendation on June 10, 2015,
recommending that the defendants’ motion for summary judgment on the
plaintiff’s claims against them in their official capacities for monetary relief be
granted. (Doc. 24). The magistrate judge further recommended that the defendants’ motion for summary judgment on the plaintiff’s Fourth and Fourteenth
Amendment excessive force and failure to protect claims be denied. (Id.). Lastly,
the magistrate judge recommended that the plaintiff’s motion for summary
judgment be denied. (Id.). The parties were allowed fourteen (14) days in which
to file written objections to the magistrate judge’s recommendations. (Id.). On July
6, 2015, the defendants filed objections to the magistrate judge’s report and
recommendation. (Doc. 27).

In their objections, the defendants argue that the plaintiff failed to comply
with the magistrate judge’s order advising him that he may not rely on his
pleadings but must come forward with counter-affidavits and/or documents in
opposition to the defendants’ motion for summary judgment. (Doc. 27 at 1-2).
The defendants contend that the plaintiff, instead, relied solely on the allegations
in his pleadings and the magistrate judge erroneously used such allegations to
determine there was a dispute of material fact.1 (Id. at 2).
The Eleventh Circuit Court of Appeals has expressly instructed lower courts
to credit “specific facts” pled in a plaintiff’s sworn complaint when considering the
plaintiff’s opposition to summary judgment. Caldwell v. Warden, FCI Talladega,
748 F.3d 1090, 1098 (11th Cir. 2014) (“We also credit the ‘specific facts’ pled in
plaintiff Caldwell’s sworn complaint when considering his opposition to summary
judgment.”) (citing Perry v. Thompson, 786 F.2d 1093, 1095 (11th Cir. 1986)
(“Plaintiff alleged specific facts in his sworn complaint and they were required to be
considered in their sworn form.”)); Moulds v. Bullard, 345 F. App’x 387, 391 (11th
Cir. 2009) (“[S]pecific facts pled in a sworn complaint must be considered in
opposition to summary judgment.”) (citing Perry, 786 F.2d at 1095); Shaw v.

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The plaintiff filed a response to the defendants’ motion for summary judgment in which
he repeated the allegations set forth in his amended complaint. (Doc. 21). However, the response
was not made in affidavit form and was not made under penalty of perjury. (Id.).
2

Cowart, 300 F. App’x 640, 645 (11th Cir. 2008) (“Facts alleged by the plaintiff in a
sworn pleading” must be considered in opposition to summary judgment)).
However, sworn statements must be made on personal knowledge, and statements
based in part upon information and belief cannot raise a genuine issue of fact. Pace
v. Capobianco, 283 F.3d 1275, 1278 (11th Cir. 2002).
The plaintiff’s amended complaint is signed and dated by him and states that
it is made under penalty of perjury. (Doc. 7 at 4). Therefore, the plaintiff’s
amended complaint complies with 28 U.S.C. § 1746 and thus constitutes an
unsworn declaration under penalty of perjury that may be considered as evidence for
purposes of summary judgment.2 Based on the foregoing, it was not error for the
magistrate judge to refer to the plaintiff’s amended complaint when determining that
a dispute of material fact exists for purposes of summary judgment. As such, the
defendants’ objection to the magistrate judge’s report and recommendation on such
grounds is OVERRULED.
Next, the defendants argue that the magistrate judge’s report and
recommendation “seems to ignore the undisputed fact that Smith admitted that he
did not have any serious illness or injury immediately after his arrest and during his
2

Pursuant to 28 U.S.C. § 1746, an unsworn declaration may be given the same force
and effect as an affidavit if it is signed and dated and includes language in substantially the following
form: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and
correct. Executed on (date). (Signature).”
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booking.” (Doc. 27 at 3) (emphasis in original). The magistrate judge correctly
noted that the plaintiff does not dispute that he denied any serious injury at all when
he arrived at the Jefferson County Jail following the alleged assault. (Doc. 24 at
19). The magistrate judge further found no medical evidence in the record to
corroborate the plaintiff’s claims that he sustained “trauma to his kidneys,”
permanent loss of function in his shoulder, bicep, or back muscles, blackouts, or eye
trauma. (Doc. 7 at 5). Nevertheless, the plaintiff submitted pictures and medical
documents which note that he sustained multiple abrasions on his face and arms
following his arrest. (Doc. 14-7 at 2; Doc. 16 at 25).
The extent of injury suffered is only one factor to determining whether the
force used was unreasonable. See Saunders v. Duke, 766 F.3d 1262, 1270 (11th Cir.
2014) (applying same rationale to Fourth Amendment excessive force case as used
in actions brought under Eighth Amendment where an individual who is
gratuitously beaten by officers does not lose his ability to pursue an excessive force
claim merely because he does not suffer serious injury). Moreover, a plaintiff
claiming excessive force under the Fourth Amendment can seek nominal damages if
he does not have compensable injuries. Id. The defendants’ objections to the
magistrate judge’s report and recommendation on the basis that the plaintiff did not
suffer a serious injury is OVERRULED.
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A genuine dispute of material fact exists concerning “the need for the
application of force, . . . the relationship between the need and amount of force
used, and . . . the extent of the injury inflicted,” Lee v. Ferraro, 284 F.3d 1188, 1198
(11th Cir. 2002), concerning Defendants Leon, Scott, Sanders, and Watts’s alleged
use of force against the plaintiff during his arrest on November 8, 2011. Similarly, a
genuine dispute of material fact exists whether Defendant Hughes used unnecessary
or excessive force against the plaintiff while in the booking area’s holding cell in
violation of the Fourteenth Amendment.3

Moreover, the defendants are not

3

The plaintiff was a pre-trial detainee when he alleges Defendant Hughes assaulted him.
Therefore, the magistrate judge correctly analyzed the plaintiff’s Fourteenth Amendment excessive
force claim against Defendant Hughes under the same standard as that used in an Eighth Amendment
excessive force claim based on Eleventh Circuit precedent. See Daniel v. U.S. Marshal Serv., 188
Fed. App’x 954, 961-62 (11th Cir. 2006); see also Bozeman v. Orum, 422 F.3d 1265, 1271 (11th Cir.
2005) (citing Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996)).
On June 22, 2015, the United States Supreme Court decided in Kingsley v. Hendrickson, et
al. that a pretrial detainee proceeding under 42 U.S.C. § 1983 must show that the force used was
objectively unreasonable rather than maliciously or sadistically under the Eighth Amendment. 2015
WL 2473447, - - - S. Ct. - - - -, at * 5-9 (2015). However, this does not change the outcome of the
plaintiff’s excessive force claim against Defendant Hughes. The plaintiff contends that while he was
being booked into the Jail, Defendant Hughes struck him in the head twice, threw him on the
concrete and tile floor, causing the plaintiff to strike his head on the floor and knock him
unconscious. (Doc. 7 at 5-6). Next, the plaintiff claims Defendant Hughes dragged him out of the
holding cell and out of the camera’s range. (Id.). The plaintiff alleges he sustained “lacerations” to
his back. (Doc. 7 at 6). Viewing the facts in a light most favorable to the plaintiff, there is no
indication of a need for any force against the plaintiff and Defendant Hughes’s actions were
unprovoked and unnecessary and, therefore, objectively unreasonable. On the other hand, Defendant
Hughes maintains that he was not even at the Jail at the time of the alleged assault. (Doc. 14-8,
Hughes Aff. ¶ 6). Therefore, there is a genuine dispute of material fact which the court cannot
reconcile on a motion for summary judgment.
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entitled to qualified immunity at this juncture because the plaintiff has sufficiently
alleged that they violated constitutional rights which were clearly established prior
to the alleged acts.
Having carefully reviewed and considered de novo all the materials in the
court file, including the report and recommendation and the objections thereto, the
court is of the opinion that the magistrate judge’s report is due to be and is hereby
ADOPTED and the magistrate judge’s recommendation is ACCEPTED. The
defendants’ motion for summary judgment is GRANTED in part and DENIED in
part as follows:
1.

Defendants’ motion for summary judgment is GRANTED on the
plaintiff’s claims against them in their official capacities for monetary
relief;

2.

Defendants’ motion for summary judgment is DENIED on the plaintiff’s
Fourth Amendment excessive force and failure to protects claims against
Defendants Leon, Scott, Sanders, and Watts;

3.

Defendants’ motion for summary judgment is DENIED on the plaintiff’s
Fourteenth Amendment excessive force claim against Defendant Hughes;
and

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4.

Defendants’ motion for summary judgment is DENIED on the plaintiff’s
Fourth and Fourteenth Amendment excessive force and failure to protect
claims on the basis of qualified immunity.

Additionally, the plaintiff’s motion for summary judgment is DENIED.
Defendants Leon, Scott, Sanders, Watts, and Hughes are hereby ORDERED
to file an answer within twenty (20) days of the entry date of this order.
DONE this 25th day of August, 2015.

SHARON LOVELACE BLACKBURN
SENIOR UNITED STATES DISTRICT JUDGE

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