Grimes v. Felder et al

Filing 45

ORDER ADOPTING and ACCEPTING the Magistrate Judges 40 REPORT AND RECOMMENDATIONS. The Court EXPLICITLY FINDS no genuine issues of material fact remain as to defendants Cheryl Price and Morris Rogers, and therefore ORDERS that defendants Cheryl Price and Morris Rogers Motion for Summary Judgment, (doc. 14), is GRANTED. Defendant Victorrus Felders Motion for Summary Judgment, (doc. 14), is DENIED. The remaining claims against defendant Felder are referred to the Magistrate Judge for further proceedings. Signed by Judge James H Hancock on 12/8/2015. (JLC, )

FILED
2015 Dec-08 PM 12:37
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TONY EUGENE GRIMES,
Plaintiff,
v.
VICTORRUS FELDER, et al.,
Defendants.

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) Case No. 2:13-cv-01267-JHH-JHE
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ORDER

The magistrate judge filed a report and recommendation on October 30,

2015,

recommending that the plaintiff’s claims against defendants Cheryl Price and Morris Rogers be
dismissed with prejudice. (Doc. 40).

The magistrate judge further recommended that the

defendants’ motion for summary judgment as to the plaintiff’s claims against defendant
Victorrus Felder be denied and referred to the magistrate judge for further proceedings. The
plaintiff filed objections to the report and recommendation on December 2, 2015. (Doc. 44).
The plaintiff objects to the Report and Recommendation “omitting” facts involving
defendant Victorrus Felder’s actions against inmate Ricardo Poole. (Doc. 44 at 4). Specifically,
the plaintiff objects to the recommendation by the magistrate judge that summary judgment be
granted in favor of defendant Morris Rogers, based on the plaintiff’s allegation that Rogers was
“acting in complicity with Felder[’s] excessive use of force.” Id. In his complaint, the plaintiff
set forth allegations concerning defendant Felder’s actions against inmate Poole. However, the
plaintiff was not in the cell with Poole when Felder allegedly struck Poole and therefore has no
personal knowledge of those events. (See doc. 1 at 7). Although the plaintiff filed an affidavit
by inmate Poole in support of his opposition to the defendants’ motion for summary judgment,

nothing in that affidavit states that Rogers was present when Felder struck Poole. (See doc. 37 at
25). In fact, Poole states nothing more than Felder and Rogers appeared at his cell door, entered
the cell, and then either Felder or Rogers closed the cell door. (Id.). Inmate Poole’s affidavit
includes no other mention of Rogers. Therefore, the court cannot make the finding the plaintiff
desires to support a failure to intervene claim against Rogers, specifically that “Rogers was
present with Felder & observing Felder perform the SAME SCHEME OF EXCESSIVE FORCE
that resulted in Grimes with an ear injury.” (Doc. 44 at 4).
Because of a complete lack of evidence that Rogers was acting in complicity with Felder
in regard to Felder’s actions towards Poole, the court cannot draw the inference that the plaintiff
seeks, namely that Rogers knew Felder was going to strike the plaintiff and failed to intervene.
Based on the evidence before the court, no reasonable jury could reach this conclusion.
The plaintiff’s reliance on Priester v. City of Riviera Beach, Fl., 208 F.3d 919 (11th Cir.
2000), is misplaced. That case is based on facts where once police officer, Cushing, called for a
canine officer to assist in a search for a burglary suspect. Id., at 923. A canine officer, Wheeler,
responded and eventually released the dog on the plaintiff, who suffered multiple puncture
wounds from dog bites. Id., at 924. During a jury trial on the merits, the plaintiff testified that
the dog attack lasted for “more than an eternity” and defendant Cushing testified that the dog
attack may have lasted as long as two minutes. Id., at 925. The Eleventh Circuit noted these
facts stated a failure to intervene claim against Cushing and, based on the trial evidence, held the
grant of judgment as a matter of law in favor of Cushing in spite of a jury verdict finding him
liable was error. Id.
In contrast to the facts in Priester, the plaintiff here supplied the affidavit of his cell
mate, Johnnie James, who stated that the second blow applied by Felder to the plaintiff’s ear was
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“about ‘2’ seconds after that first blow . . .” (Doc. 22 at 25). According to the plaintiff’s own
affidavit, Felder slapped the back of his head, “then stepped back about two seconds . . .” before
administering the second, harder, blow to the plaintiff’s ear. (Doc. 37 at 15). Even in his
objections, the plaintiff describes the incident as including “the momentary period from Felder’s
first blow to his injury causing second blow . . .” (Doc. 44 at 6). As the magistrate judge found
in the report and recommendation, the factual allegations in this case are insufficient to support a
finding that Rogers had a realistic opportunity to intervene. (Doc. 40 at 11).
Having carefully reviewed and considered de novo all the materials in the court file,
including the report and recommendation and the plaintiff’s objections, the court is of the
opinion that the magistrate judge’s report is due to be and hereby is ADOPTED and the
magistrate judge’s recommendation is ACCEPTED. The court EXPLICITLY FINDS no
genuine issues of material fact remain as to defendants Cheryl Price and Morris Rogers, and
therefore ORDERS that defendants Cheryl Price and Morris Rogers’ motion for summary
judgment, (doc. 14), is GRANTED.
Defendant Victorrus Felder’s motion for summary judgment, (doc. 14), is DENIED. The
remaining claims against defendant Felder are referred to the magistrate judge for further
proceedings.

DONE this the 8th

day of December, 2015.

SENIOR UNITED STATES DISTRICT JUDGE

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