Forester v. Hodges et al

Filing 79

MEMORANDUM OF DECISION. Signed by Judge Virginia Emerson Hopkins on 8/5/2015. (JLC)

FILED
2015 Aug-05 PM 01:48
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
JAMES ALLEN FORESTER,
Plaintiff,
v.
SERGEANT BRUCE T. HODGE,
et al.,
Defendants

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4:12-cv-04094-VEH-JEO

MEMORANDUM OF DECISION
On November 22, 2012, plaintiff, James Allen Forester (“Mr. Forester”), was
an inmate at the St. Clair Correctional Facility (“St. Clair”), in Springville, Alabama.
Sergeant Bruce T. Hodge (“Sergeant Hodge”), Correctional Officers Justin Guthery
(“Officer Guthery”) and Christopher Dixon (“Officer Dixon”) were on duty at St.
Clair on November 22, 2012. At approximately 10:00 p.m., Mr. Forester and two
other inmates, Jermaine Tillman (“Mr. Tillman”) and Jordan Waller (“Mr. Waller”)
were in the infirmary. All three inmates were handcuffed behind their backs and wore
leg shackles. Sergeant Hodge and Officer Guthery were escorting the inmates. Officer
Dixon was filling out reports at a desk in the infirmary. After the other two inmates
were treated, a nurse said infirmary was over without Mr. Forester having been seen.

Mr. Forester became upset and verbally protested. Sergeant Hodge directed Mr.
Forester to leave and return to his cell. Mr. Forester did not comply and protested that
he had not been treated. Sergeant Hodge again directed Mr. Forester to leave. Mr.
Forester again did not comply. Sergeant Hodge again directed Mr. Forester to go back
to his cell. Mr. Forester said he could not. There is no evidence that Sergeant Hodge
knew that the reason Mr. Forester could not comply was because his pants leg had
gotten caught under his foot, preventing him from walking. Mr. Forester reached
down to free his foot and, due to the close proximity of Sergeant Hodge, Mr.
Forester’s foot, which was clad in prison-issued soft-soled fabric shoes, came into
contact with Sergeant Hodge’s shin. Sergeant Hodge yelled “He kicked me!” and
threw Mr. Forester to the floor.
According to the defendant officers, Officer Guthery came over a distance of
about 5 feet and assisted Sergeant Hodge with securing Mr. Forester. Officer Guthery
lay across Mr. Forester’s legs to keep him from kicking again. Mr. Forester continued
to struggle. Sergeant Hodge got on top of Mr. Forester’s back and applied a
mandibular angle pressure point hold to cause pain so that Mr. Forester would stop
moving. Sergeant Hodge then pulled Mr. Forester to his feet and said words to the
effect, “Do you want more?” and “Have you had enough?” Officer Dixon never left
his desk.
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According to Mr. Forester, he was totally restrained after he was taken to the
ground. Nonetheless, Sergeant Hodge put his knee on Mr. Forester’s back and
delivered 5 to 7 closed-fist blows to the back of Mr. Forester’s head. Officers Guthery
and Dixon failed to intervene to stop Sergeant Hodge from hitting Mr. Forester in the
head.
Mr. Forester has sued Sergeant Hodge for damages under 42 U.S.C. § 1983
alleging that Sergeant Hodge was acting under color of law and exerted excessive
force. Mr. Forester’s claims against Officers Guthery and Dixon are also brought
under § 1983 and allege that Officers Guthery and Dixon failed to intervene to
prevent Sergeant Hodge from using excessive force.
The case proceeded to a non-jury trial. Upon consideration of the evidence and
testimony presented, and the arguments of counsel, the following findings of fact and
conclusions of law are issued in accordance with Federal Rule of Civil Procedure
52(a)(1) in support of the Court's determination that Mr. Forester has failed to prove
his case by a preponderance of the evidence against any of the defendants.
I. FACTUAL OVERVIEW AND PROCEDURAL HISTORY
Mr. Forester filed this action against Sergeant Hodge and Officers Guthery and
Dixon on December 13, 2012. Pursuant to 42 U.S.C. § 1983, Mr. Forester alleged that
these defendants deprived him of rights accorded to him by the United States
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Constitution. On July 12, 2013, Magistrate Judge John E. Ott ordered the defendants
to file a Special Report. (Order, doc. 10). After two requests for extensions of time
to file that Special Report were granted, the defendants, on October 11, 2013, filed
their Special Report (doc. 25), which the magistrate judge treated as a Motion for
Summary Judgment. (See Order, doc. 26). Mr. Forester, acting pro se, after receiving
an extension of time, responded to the Special Report on January 8, 2014 (doc. 32).
On July 7, 2014, the magistrate judge issued his report and recommendation (doc.
33), recommending that all of Mr. Forester’s claims be dismissed except his claims
against the defendants in their individual capacities for excessive force after the
takedown (against Sergeant Hodge) and for failure to intervene (against Officers
Guthery and Dixon). No objections to the report and recommendation were filed. On
August 7, 2014, the undersigned adopted the report and recommendation and
dismissed all of Mr. Forester’s claims except his claims against the defendants in their
individual capacities for excessive force after the takedown (against Sergeant Hodge)
and for failure to intervene (against Officers Guthery and Dixon). (Doc. 34). The case
proceeded to trial against the defendants on those claims.
II. TRIAL EVIDENCE AND FINDINGS OF FACT
On November 22, 2012, Mr. Forester was a prisoner housed at St. Clair. All
three defendants were at all relevant times on duty as correctional officers. Sometime
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before 10:00 pm, Mr. Forester, and inmates Jermaine Tillman (“Mr. Tillman”) and
Jordan Waller (“Mr. Waller”), were at the infirmary within St. Clair, together with
two nurses, Nurse Ferris and Nurse Klinner, and the three defendant officers.
Sergeant Hodge’s and Officer Guthery’s relevant duty at that time was to escort the
inmates from the infirmary back to their cells. Officer Dixon’s relevant duty at that
time was to complete security logs in the infirmary. At all relevant times, all three
inmates were handcuffed with their hands behind their backs and also wore leg
shackles.
The other two inmates were treated by the nursing staff that night, but Mr.
Forester was not. Mr. Forester became irate when Sergeant Hodge told him to go back
to his cell even though Mr. Forester had not been treated for a painful infected open
wound in his groin. He yelled about the lack of treatment and did not comply with
Sergeant Hodge’s repeated directives to go back to his cell. Sergeant Hodge put his
hand on Mr. Forester’s shoulder to get him in escort position, but Mr. Forester spun
around and ended up with his back against the wall. Mr. Forester pulled on his pants
to free his left foot and his foot came in contact with Sergeant Hodge’s left knee.
Sergeant Hodge reasonably perceived that contact to be a kick and yelled “He kicked
me!” Although Sergeant Hodge was not injured by the kick, he immediately took Mr.
Forester to the ground, face first. Officer Guthery ran over to assist Sergeant Hodge
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because Mr. Forester was still “squirming” and “being combative.” Officer Guthery
lay across Mr. Forester’s legs so that he could not kick again. Sergeant Hodge lay on
the upper portion of Mr. Forester’s back and, because he was still resisting, Sergeant
Hodge, who is right-handed, used his right hand to apply a mandibular pressure point
hold to cause Mr. Forester pain. Mr. Forester stopped struggling and lay still. At that
point, the incident was over. It lasted at most 15 to 20 seconds. Officer Dixon never
left his desk.
Because Officer Guthery was lying sideways across Mr. Forester’s legs and
Sergeant Hodge was lying on Mr. Forester’s back, Officer Guthery could only see up
Sergeant Hodge’s right side. He could see Sergeant Hodge’s right hand, but not his
left hand. Both Officer Guthery and Officer Dixon saw Sergeant Hodge use his right
hand to apply a mandibular pressure point hold on Mr. Forester. Mr. Forester insists
that Sergeant Hodge punched and hit him six or seven times, striking at least some
of the blows with his right hand. Both Officer Dixon and Officer Guthery testified
that they never saw Sergeant Hodge hit or punch Mr. Forester.
Two body charts of Mr. Forester were prepared, one by Nurse Ferris and one
by Nurse Klinner. Collectively, these body charts show a slight laceration above his
left eyebrow, a very slight laceration at the right corner of his mouth, and a contusion
to the bridge of his nose. A body chart was also prepared of Sergeant Hodge, showing
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a contusion to his left knee and contusions to the knuckles of his right hand.
There is no dispute that Mr. Forester was injured, although his injuries were
slight. At most, his glasses were slung off his body and he received a small shallow
laceration above his left eyebrow, a smaller laceration at the right corner of his
mouth, and a contusion to the bridge of his nose.
Sergeant Hodge completed an incident report and admitted that, although St.
Clair policy required that photographs be uploaded with any incident report involving
injuries to an employee or a prisoner, he did not upload any photographs of himself
or Mr. Forester with the incident report. Sergeant Hodge stated that no photographs
were taken of him, which the court credits because Sergeant Hodge also states he was
not injured. However, in light of Sergeant Hodge’s admission that Mr. Forester was
injured, that photographs of injured inmates were taken in 2012, Mr. Forester’s
consistent statements under oath (from the December 2012 date of his initial
complaint forward) that photographs were taken of him, and the fact that the St. Clair
policy and procedure manual1 required that photographs of injured prisoners be taken,
the court credits Mr. Forester’s testimony that pictures of his injuries were taken.2

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Mr. Forester subpoenaed for trial the St. Clair policy and procedure manual in effect on
November 22, 2012. By producing the manual they produced, the defendants waived any
argument that such manual was not in effect as to all policies relevant to the issues in this case.
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The pictures were requested but not produced by defendants.
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The court notes the multiple inconsistencies in various statements made by
Sergeant Hodge and Officer Guthery as written in Sergeant Hodge’s body chart,
Sergeant Hodge’s Incident Report, Sergeant Hodge’s affidavit, Officer Guthery’s
affidavit, and their testimony at trial. However, the court finds that none of the
inconsistencies are about facts that are important enough to cause the undersigned to
discredit the testimony of Sergeant Hodge and Officer Guthery as to Sergeant
Hodge’s actions after the takedown, especially in light of the fact that Officer Dixon,
who did not even touch Mr. Forester, and who was not otherwise shown to be
unreliable, corroborated the testimony of Sergeant Hodge and Officer Guthery.
Furthermore, the court notes that Mr. Forester’s injuries consisted of a
contusion to the bridge of his nose and slight lacerations above his left eyebrow and
at the right corner of his mouth. The court further notes Mr. Forester’s own testimony
that his glasses were “slung” off his face and his nose hit the floor during the
takedown, causing the contusion to Mr. Forester’s nose. The court further notes that
both Mr. Tillman and Mr. Forester testified that Sergeant Hodge put his knee on Mr.
Forester’s back and delivered multiple closed-fist blows to the back of Mr. Forester’s
head.
The court credits the version of the facts regarding Sergeant Hodge’s acts as
stated by Sergeant Hodge, Officer Guthery, and Officer Dixon at trial, and
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accordingly discredits the testimony of Mr. Forester and Mr. Tillman to the extent
that such testimony is in conflict with such testimony.3 More specifically, the
undersigned credits the testimony of Sergeant Hodge, Officer Guthery, and Officer
Dixon that Sergeant Hodge did not hit or punch Mr. Forester after Mr. Forester was
taken to the ground. Further, Mr. Forester admits that the contusion to his nose was
caused by the takedown itself, and so was not caused by the alleged blows. The court
finds that Mr. Forester has failed to show, by a preponderance of the evidence, that
any of his injuries were caused after the takedown, as opposed to by the takedown
itself.4
III. CONCLUSIONS OF LAW
Section 1983 provides a vehicle for bringing claims for constitutional
violations committed under color of state law. To prevail, Mr. Forester must

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The undersigned is very concerned about the content of a “manifesto” advocating cruel
treatment of, and indicating a callous disregard for the very humanity of, inmates at St. Clair that
was posted by a St. Clair correctional officer, Brian Fife, and reposted by Officer Guthery on
Officer Guthery’s facebook page. No such attitude was shown to be attributable to Sergeant
Hodge or Officer Dixon, however. Accordingly, the undersigned finds that Officer Guthery’s
posting is insufficient on these facts to discredit Officer Guthery’s testimony in this case.
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In reaching this conclusion, the court takes pains to state that it gives no credence to the
testimony of David Pavlakovick, M.D., who was called by the defendants as an expert “in the
field of correctional medicine.” (Doc. 65 at 2). While on the witness stand, Dr. Pavlakovick
admitted that he signed not one but two Rule 26 reports without reviewing or even receiving a
copy of Mr. Forester’s medical file even though both reports stated that “All of [the] opinions are
expressed with a reasonable degree of medical certainty based upon ... education, training, and
experience in conjunction with [a] review of Mr. Forrester’s medical file.”
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demonstrate both that the defendant officers deprived him of a right secured under the
United States Constitution or federal law and that the deprivation occurred under
color of state law. Arrington v. Cobb Cnty., 139 F.3d 865, 872 (11th Cir.1998). “A
person acts under color of state law when he acts with authority possessed by virtue
of his employment with the state.” Griffin v. City of Opa–Locka, 261 F.3d 1295, 1303
(11th Cir.2001) (quotation omitted).
The issue of whether any of the defendant officers acted under color of state
law is not contested. Nor do any of the defendant officers dispute that, under Mr.
Forester’s version of the facts, Sergeant Hodge violated Mr. Forester’s constitutional
right to be free from cruel and unusual punishment and Officer Guthery and Officer
Dixon violated that right by failing to intervene to stop Sergeant Hodge. Finally, the
court finds that Mr. Forester has established, by a preponderance of the evidence, that
he sustained the following injuries: a contusion to his nose, a slight laceration above
his left eyebrow, and a very slight laceration at the right corner of his mouth. Thus,
the remaining issue for this court to decide is, “Did Sergeant Hodge maliciously and
sadistically hit Mr. Forester while Mr. Forester was constrained on the floor?” If the
answer to that question is “yes,” then the court must decide whether Mr. Forester has
shown that his injuries were caused by those blows and whether Officer Guthery or
Officer Dixon failed to intervene to prevent such action by Sergeant Hodge.
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The Eighth Amendment prohibition against cruel and unusual punishment is
triggered when a prisoner is subjected to an “unnecessary and wanton infliction of
pain.” Whitley v. Albers, 475 U.S. 312, 319 (1986). An excessive force claim requires
a two-prong showing: (1) an objective showing of deprivation or injury that is
“sufficiently serious” to constitute a denial of the “minimal civilized measure of life's
necessities”; and, (2) a subjective showing that the official had a “sufficiently
culpable state of mind.” Thomas v. Bryant, 614 F.3d 1288, 1305 (11th Cir.2010)
(citing Farmer v. Brennan, 511 U.S. 825, 834 (1994) (other citations omitted).
The Supreme Court has held that “whenever prison officials stand accused of
using excessive physical force in violation of the Cruel and Unusual Punishments
Clause, the core judicial inquiry [in determining whether a prisoner has suffered
unnecessary and wanton pain] is that set out in Whitley, whether force was applied
in a good-faith effort to maintain or restore discipline, or maliciously and sadistically
to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992).
The factors to be examined in determining whether the use of force was wanton
and unnecessary include an evaluation of: 1) the need for the application of the force,
2) the relationship between that need and the amount of force used, 3) the threat
reasonably perceived by the responsible officials, 4) any efforts made to temper the
severity of the response, and 5) the extent of the injury suffered by the inmate.
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Hudson v. McMillian, 503 U.S. at 7.
The court finds that the force used by Sergeant Hodge, a mandibular pressure
point hold, to subdue Mr. Forester after the takedown was not excessive under the
circumstances. Application of the hold was needed, as Mr. Forester continued to
struggle. The hold stopped once Mr. Forester stopped struggling. The hold did not
cause any injuries to Mr. Forester.
IV. CONCLUSION
In accordance with the foregoing, it is ORDERED AND ADJUDGED that
plaintiff James Allen Forester has failed to show that defendant Bruce T. Hodge used
excessive force against him and has failed to show that Justin Guthery or Christopher
Dixon failed to intervene (because no intervention was needed). Accordingly,
JUDGMENT is hereby entered in favor of Bruce T. Hodge, Justin Guthery, and
Christopher Dixon. Mr. Forester shall take nothing and his claim is hereby
DISMISSED WITH PREJUDICE.
DONE this the 5th day of August, 2015.

VIRGINIA EMERSON HOPKINS
United States District Judge

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