Harris v. Rambo et al

Filing 73

ORDER The Court is of the opinion that the magistrate judges report is due to be and is ADOPTED, and the magistrate judges recommendation is ACCEPTED; The Court GRANTS the defendants motion for summary judgment on the following claims: (1) plaintiffs claims against defendants in their official capacities for monetary relief; (2) plaintiffs claims for injunctive relief; (3) plaintiffs Eighth Amendment failure to protect claims against defendants King and Nath; (4) plaintiffs conspiracy claims aga inst defendants Rambo, Gadson, King, and Nath; (5) plaintiffs retaliation claims against (a) defendant Rambo concerning the January 30, 2011 inmate attack; (b) defendant Gadson concerning the February 17 and March 2, 2011 incidents of excessive force ; and (c) defendants Rambo and Gadson for allegedly spitting in plaintiffs food; and (6) plaintiffs supervisory claims against defendants Hetzel, Hicks, Felton, and Wheat- these claims are DISMISSED WITH PREJUDICE. The Court DENIES the defendants mot ion for summary judgment as to plaintiffs excessive force claims against defendants Rambo and Gadson and plaintiffs retaliation claims against defendant Rambo concerning the February 17, 2011 and March 2, 2011 incidents of alleged excessive force. De fendants Rambo and Gadson are ORDERED to file an answer within twenty days of the entry date of this order. This case is REMANDED to the magistrate judge for further proceedings consistent with this order. Signed by Judge William M Acker, Jr on 9/24/13. (SAC )

FILED
2013 Sep-24 PM 02:42
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
WILLIAM HENRY HARRIS, JR.,
Plaintiff,
vs.
REGINALD RAMBO, et al.,
Defendants.

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) Case No. 4:11-cv-01646-WMA-MHH
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ORDER
The magistrate judge filed her report and recommendation in this matter on
August 21, 2013. (Doc. 69). In that report, she recommended that the District Court
grant the defendants’ motion for summary judgment as to the following claims: (1)
plaintiff’s claims against the defendants in their official capacities for monetary relief;
(2) plaintiff’s claims for injunctive relief; (3) plaintiff’s Eighth Amendment failure
to protect claims against defendants King and Nath; (4) plaintiff’s conspiracy claims
against defendants Rambo, Gadson, King, and Nath; (5) plaintiff’s retaliation claims
against (a) defendant Rambo concerning the January 30, 2011 inmate attack; (b)
defendant Gadson concerning the February 17 and March 2, 2011 incidents of
excessive force; and (c) defendants Rambo and Gadson for allegedly spitting in
plaintiff’s food; and (6) plaintiff’s supervisory claims against defendants Hetzel,

Hicks, Felton, and Wheat. She also recommended that the Court deny the defendants’s motion for summary judgment with respect to the following claims: (1)
plaintiff’s excessive force claims against defendants Rambo and Gadson; and (2)
plaintiff’s retaliation claims against defendant Rambo concerning the February 17 and
March 2, 2011 incidents of excessive force. Id.
On September 4, 2013, defendants filed objections to the Report and
Recommendation. (Doc. 70). On August 27, 2013 and September 9, 2013, plaintiff
filed objections. (Docs. 71, p. 10; Doc. 72, p. 5).1 For the reasons stated below, the
Court overrules the objections and adopts the report and recommendation.
A.

Defendants’ Objections.
Defendants Rambo and Gadson object to the magistrate judge’s finding that

conflicting evidence precludes summary judgment on Mr. Harris’s excessive force
claims. They contend that they used only the amount of force necessary on February
17, 2011. According to Gadson and Rambo, Mr. Harris’s “outlandish[ ]” allegations
that the officers repeatedly punched and kicked him, grabbed his throat, and struck
him with a baton, among other things, are not supported by the medical evidence.

Pursuant to the prison mailbox rule, the Court deems Mr. Harris’s objections filed on the
day that he signed the “Certificate of Service” on the each of the two sets of objections. See Adams
v. U.S., 173 F. 3d 1339, 1341 (11th Cir. 1999); Ellis v. Hooks, 219 Fed. Appx. 865, 867 (11th Cir.
2007). The Clerk of Court docketed Mr. Harris’s first set of objections on September 6, 2013. The
Clerk docketed his second set of objections on September 11, 2013.
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(Doc. 70, p. 3). Gadson and Rambo also argue that Mr. Harris suffered no injury
with regard to the alleged use of force on March 2, 2011. (Doc. 70, pp. 3-4).
Defendants state that because Mr. Harris’s excessive force claims are without merit,
his retaliation claim against defendant Rambo necessarily fails as well.
As the magistrate judge discussed in her report, the record, viewed in the light
most favorable to Mr. Harris, indicates that on February 17, 2011, defendant Rambo
entered Mr. Harris’s cell, punched him in the face, grabbed his throat, and sprayed
Mr. Harris with pepper spray while attempting to push the nozzle in his mouth.
Rambo and Gadson punched Mr. Harris, struck him with a baton, elbowed him in the
rib cage, stomped on him, and slapped him numerous times. Mr. Harris allegedly lost
consciousness but was awakened by a blow to the left side of his head. Other details
concerning the February 17, 2011 confrontation appear in the report and recommendation. According to Mr. Harris, on March 2, 2011, defendant Rambo slapped him
while he was handcuffed, and defendant Gadson and two unknown officers beat him.
(Doc. 69, p. 28).
Clearly, the differences between the plaintiff’s version of his encounters with
Officers Rambo and Gadson, and the defendants’ account of those events are
substantial. Those differences constitute genuine issues of material fact that preclude

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summary judgment on Mr. Harris’s Eighth Amendment excessive force claims against
Rambo and Gadson.
Defendants argue that because medical records indicate that Mr. Harris
sustained only a small 1/4 inch abrasion inside of his ear after the February 17, 2011
incident, and he suffered no appreciable injuries as a result of the March 2, 2011
incident, the Court should dismiss his claims. The United States Supreme Court has
reiterated that the Eighth Amendment prohibits prison officials’ malicious and
sadistic acts whether or not injury results. See Wilkins v. Gaddy, 559 U.S. 34, 37-38
(2010). “An inmate who is 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.” Id. at 38.
On the record in this case, reasonable jurors could find that Rambo’s and
Gadson’s use of force was wanton and unnecessary. Therefore, those defendants are
not entitled to summary judgment on Mr. Harris’s Eighth Amendment excessive force
claim.
Similarly, a question of fact exists concerning Officer Rambo’s alleged use of
excessive force against Mr. Harris in retaliation for filing a lawsuit against another
correctional officer. Although the defendants contend that Mr. Harris’s allegation
that defendant Rambo referred to the lawsuit while he allegedly beat Mr. Harris is
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“self serving” (Doc. 70, p. 6), it is sufficient to overcome Officer Rambo’s summary
judgment motion on Mr. Harris’s retaliation claim.
B.

Plaintiff’s Objections.
Mr. Harris objects to the magistrate judge’s recommendation that the Court

grant the defendants’ motion for summary judgment as to his Eighth Amendment
failure to protect claims against defendants King and Nath. (Doc. 71, pp. 1-2). In his
objections, Mr. Harris continues to offer only conclusory and speculative allegations
that defendants Nath and King should have witnessed the alleged assault on February
17, 2011 from where they were located. Mr. Harris does not suggest that he has
personal knowledge that Nath and King observed the alleged beating, and he has not
offered admissible evidence from an eyewitness concerning Nath’s and King’s
vantage points at the time of the beating.2 Consequently, those defendants are entitled
to summary judgment.
Mr. Harris also objects to the recommended dismissal of his retaliation claim
against defendant Rambo concerning the January 30, 2011 inmate attack. (Doc. 71,
pp. 1, 3-4).

Mr. Harris submitted a statement from Inmate Sah’King Burke in which Mr. Burke
reported that Officers Nath and King watched as Officers Rambo and Gadson assaulted Mr. Harris.
(Doc. 1, pp. 29-30). Because Mr. Burke’s statement is neither sworn nor made under penalty of
perjury, the Court has not considered it. See Gordon v. Watson, 622 F.2d 120, 123 (5th Cir. 1980);
Nicholson v. Georgia Dep’t of Human Resources, 918 F.2d 145, 148 n.1 (11th Cir. 1990).
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Mr. Harris maintains that Officer Rambo released inmate Curtis Lindsey to attack
him. Again, Mr. Harris has no personal knowledge that defendant Rambo released
Lindsey. Therefore, he cannot dispute Officers Martin’s and Oden’s affidavit
testimony that they released inmate Lindsay from his cell. There is no evidence to
substantiate Mr. Harris’s claim that Officer Rambo instigated Mr. Lindsey’s attack
on Mr. Harris. Mr. Harris offers only his conclusory allegations that Officer Rambo
facilitated the assault. That is not enough to overcome the defendants’ summary
judgment motion.
Lastly, Mr. Harris objects to the magistrate judge’s recommendation that the
Court grant the defendants’ motion for summary judgment concerning his supervisory
claims against defendants Hetzel, Hicks, Felton, and Wheat. Mr. Harris argues that
because he threatened to stab defendant Rambo on February 16, 2011, supervisors
should have separated him from Rambo pursuant to DOC policy. There is no
evidence in the record that prison officials knew defendant Rambo was going to
attack Mr. Harris or that there was a strong likelihood, as opposed to a possibility,
that Rambo would subject Mr. Harris to serious harm because Mr. Harris threatened
Rambo. Without evidence of notice, Mr. Harris cannot maintain his supervisory
claim. (Doc. 69, pp. 1, 4-10).

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Moreover, the mere fact that prison officials did not separate Mr. Harris from
defendant Rambo pursuant to an alleged DOC policy does not, by itself, give rise to
a constitutional claim. See United States v. Caceres, 440 U.S. 741 (1979); Caruth v.
Pinkney, 683 F.2d 1044 (7th Cir. 1982). To the extent that Mr. Harris claims that
prison officials were negligent in failing to separate him from defendant Rambo, mere
negligence will not support a constitutional claim. See Fielder v. Brossard, 590 F.2d
105 (5th Cir. 1979).
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 defendants, 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 Court GRANTS the defendants’ motion for summary judgment on the
following claims: (1) plaintiff’s claims against defendants in their official capacities
for monetary relief; (2) plaintiff’s claims for injunctive relief; (3) plaintiff’s Eighth
Amendment failure to protect claims against defendants King and Nath; (4) plaintiff’s
conspiracy claims against defendants Rambo, Gadson, King, and Nath; (5) plaintiff’s
retaliation claims against (a) defendant Rambo concerning the January 30, 2011
inmate attack; (b) defendant Gadson concerning the February 17 and March 2, 2011
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incidents of excessive force; and (c) defendants Rambo and Gadson for allegedly
spitting in plaintiff’s food; and (6) plaintiff’s supervisory claims against defendants
Hetzel, Hicks, Felton, and Wheat. Because defendants are entitled to judgment as a
matter of law, these claims are DISMISSED WITH PREJUDICE.
The Court DENIES the defendants’ motion for summary judgment as to
plaintiff’s excessive force claims against defendants Rambo and Gadson and
plaintiff’s retaliation claims against defendant Rambo concerning the February 17,
2011 and March 2, 2011 incidents of alleged excessive force.
Defendants Rambo and Gadson are hereby ORDERED to file an answer within
twenty (20) days of the entry date of this order. This case is REMANDED to the
magistrate judge for further proceedings consistent with this order.
DATED this 24th day of September, 2013.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

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