Lewis v. Entrekin et al

Filing 40

MEMORANDUM OPINION, ORDER re 12 Having carefully reviewed and considered de novo those portions of the report or specified proposed findings or recommendations to which Defendant objects, see 28 U.S.C. § 636(b)(1)(C), the court ADOPTS IN PART the magistrate judges report and ACCEPTS IN PART and REJECTS IN PART the REPORT AND RECOMMENDATION re 11 Amended Complaint filed by Christopher Lamont Lewis Telephone Conference set for 1/16/2019 10:00 AM before Judge Annemarie Carney Axon. Signed by Judge Annemarie Carney Axon on 1/3/2019. (TLM, )

FILED
2019 Jan-03 PM 04:19
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
CHRISTOPHER LAMONT LEWIS,
Plaintiff,
v.
CLARENCE THOMAS “TOMMY”
JOHNSON,

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Case No. 4:16-cv-00254-ACA-HNJ

Defendant.
MEMORANDUM OPINION AND ORDER
In this case, pro se Plaintiff Christopher Lamont Lewis claims that
Defendant Clarence Thomas Johnson violated his constitutional rights. Plaintiff
asserts 28 U.S.C. § 1983 claims against Defendant for excessive force and denial
of medical care.
The magistrate judge filed a report on May 25, 2018, recommending that the
court deny Defendant’s motion for summary judgment. (Doc. 28). Defendant
filed objections to the report and recommendation on June 8, 2018. (Doc. 29).
The case currently is before the court for a review of Defendant’s objections to the
report and recommendation.
I.

Excessive Force
In his report and recommendation, with respect to Plaintiff’s excessive force

claim, the magistrate judge found that a reasonable jury could conclude that

Defendant’s actions were objectively unreasonable.

(Doc. 28 at 10-11).

Defendant objects to this finding and argues that the facts establish that he did not
violate Plaintiff’s right to be free from excessive force, and that even if he did,
Defendant still enjoys qualified immunity because he did not violate a clearly
established right. (Doc. 29).
“Qualified immunity shields government officials acting within their
discretionary authority from liability unless the officials ‘violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.’” Franklin v. Curry, 738 F.3d 1246, 1249 (11th Cir. 2013) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “An official who asserts
entitlement to qualified immunity must first establish that she or he was acting
within the scope of his discretionary authority.” Alcocer v. Mills, 906 F.3d 944,
951 (11th Cir. 2018). “Once the official makes that showing, the burden shifts to
the plaintiff to demonstrate that qualified immunity is inappropriate.” Id.
Here, there is no dispute that Defendant was carrying out duties associated
with his employment as a Correctional Officer at the Etowah County Sheriff’s
Office. Therefore, to overcome Defendant’s qualified immunity defense, Plaintiff
must “establish both that the officer’s conduct violated a constitutionally protected
right and that the right was clearly established at the time of the misconduct.”
Alcocer, 906 F.3d at 951. The court may consider in any order whether Plaintiff
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has satisfied his burden. Id.; see Pearson v. Callahan, 555 U.S. 223, 236 (2009)
(“The judges of the district courts and the courts of appeals should be permitted to
exercise their sound discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the
particular case at hand.”).
Assuming without deciding that the magistrate judge properly concluded
that questions of fact exist regarding whether Defendant violated Plaintiff’s
constitutional right to be free from excessive force, the court concludes that
Defendant is entitled to qualified immunity because the right was not clearly
established such that “it would [have been] clear to a reasonably officer that his
conduct was unlawful in the situated he confronted.” Saucier v. Katz, 533 U.S.
194, 202 (2001).
Plaintiff’s excessive force claim arises out of an incident the Etowah County
Jail on January 26, 2016. Defendant brought Plaintiff’s food tray to his cell,
opened the cell door flap, and left the food tray on the flap. (Doc. 16-2 at ¶¶ 1516). According to jail policy, correctional officers are not to leave any inmate cell
door flaps open. (Doc. 16-2 at ¶ 17). Therefore, Defendant instructed Plaintiff to
remove the tray from the door flap so that Defendant could shut and secure the
flap. (Doc. 16-2 at ¶ 18). Plaintiff advised Defendant that he would not remove

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the tray until Defendant radioed a Sergeant to bring Plaintiff his asthma inhaler that
Plaintiff had requested from Defendant earlier in the day. (Id.; Doc. 27 at 4, ¶ 20).
When Plaintiff continued to refuse to remove the lunch tray from the flap,
Defendant grabbed the tray, placed it on the floor outside the cell, and returned to
secure the cell door flap. (Doc. 16-2 at ¶¶ 21-24). Defendant could not close the
cell door flap because Plaintiff had extended his arms out on the flap and refused to
move them until Defendant radioed the Sergeant regarding the inhaler. (Doc. 16-2
at ¶ 24).
Plaintiff continued to ignore Defendant’s orders, so Defendant told Plaintiff
that he was “going to attempt to force [the hatch] closed by kicking it.” (Doc. 16-4
at 2). Plaintiff responded, “go ahead and try.” (Doc. 16-2 at ¶ 27; Doc. 16-4 at 2).
Defendant “took the toe of [his] left foot and tried to force the hatch closed from
the underside position of the flap,” but he could not close the flap due to the
pressure of Plaintiff’s arms. (Doc. 16-2 at ¶ 6). According to Plaintiff, Defendant
“kicked and stomped” his hands and fingers and “viciously kicked the bottom of
the . . . tray flap with the plaintiff’s hands still attached, repeatedly attempting to
force the hatch close[d], causing serious skin lacerations and swelling of the hands
and wrists.” (Doc. 11 at 3-4). Plaintiff claims that Defendant was “using all his
might in attempt to either break [his] arms and wrists or make him hurt bad enough
to remove his extremities” from the tray flap. (Doc. 27 at 4). When Defendant
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could not get the flap to close, he told Plaintiff that he would leave the cell flap
open temporarily because no other inmate was to be out of his cell at the time.
(Doc. 16-2 at ¶ 28). The record does not indicate whether or how Defendant was
able to ultimately close Plaintiff’s cell flap door.
These facts, construed in the light most favorable to Plaintiff, do not
demonstrate a violation of a clearly established constitutional right sufficient to
overcome summary judgment. A right is clearly established when its contours are
“sufficiently definite that any reasonable official in the defendant’s shoes would
have understood that he was violating it.” Singletary v. Vargas, 804 F.3d 1174,
1184 (11th Cir. 2015) (internal quotation marks and citation omitted). “A right
may be clearly established for qualified immunity purposes in one of three ways:
(1) case law with indistinguishable facts clearly establishing the constitutional right
. . . ; (2) a broad statement of principle within the Constitution, statute, or case law
that clearly establishes a constitutional right . . . ; or (3) conduct so egregious that a
constitutional right was clearly violated, even in the total absence of case law.”
Lewis v. City of West Palm Beach, Fla., 561 F.3d 1288, 1291-92 (11th Cir. 2009).
For purposes of the first and second methods, “[i]n this circuit, the law can be
‘clearly established’ for qualified immunity purposes only by decisions of the U.S.
Supreme Court, Eleventh Circuit Court of Appeals, or the highest court of the state

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where the case arose.” Jenkins by Hall v. Talladega City Bd. of Educ., 115 F.3d
821, 826 n.4 (11th Cir. 1997).
Plaintiff has not cited, and the court has not located, case law with
indistinguishable facts clearly establishing a constitutional right, and the court
finds that Defendant’s actions are not so egregious that a constitutional right was
clearly violated in the absence of analogous case law.

Therefore, the court

examines broad principles in case law that provide relevant guidance.
For decades, the Eleventh Circuit has recognized that “[p]rison officials step
over the line of constitutionally permissible conduct if they use more force than is
reasonably necessary in an existing situation.” Ort v. White, 813 F.2d 318, 325
(11th Cir. 1987). “Prison officers must, however, have the authority to use that
amount of force or those coercive measures reasonably necessary to enforce an
inmate’s compliance with valid prison rules and to protect themselves and the
other inmates. Id. In the Eleventh Circuit, courts “give a wide range of deference
to prison officials acting to preserve discipline and security.” Bennett v. Parker,
898 F.2d 1530, 1533 (11th Cir. 1990). “When jailers continue to use substantial
force against a prisoner who has clearly stopped resisting—whether because he has
decided to become compliant, he has been subdued, or he is otherwise
incapacitated—that use of force is excessive.” Danley v. Allen, 540 F.3d 1298,

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1309 (11th Cir. 2008). “Once a prisoner has stopped resisting there is no longer a
need for force, so the use of force thereafter is disproportionate to the need.” Id.
Based on these principles, the court finds that Plaintiff’s right to be free from
excessive force under the circumstances of this case was not clearly established.
According to jail policy, officers at the Etowah County Jail are not to leave an
inmate’s cell door flaps open. (Doc. 16-2 at ¶ 17). Therefore, Defendant told
Plaintiff to remove his lunch tray from the flap so that Defendant could close and
securely lock the flap.

(Doc. 16-2 at ¶ 18).

Plaintiff repeatedly ignored

Defendant’s request to remove the tray. (Doc. 16-2 at ¶ 21). Defendant removed
the tray and returned to lock Plaintiff’s cell door flap. (Doc. 16-2 at ¶ 24).
Plaintiff placed his hands in the door flap and continued to disobey Defendant’s
commands to remove them. (Doc. 16-2 at ¶¶ 24-25). When Defendant told
Plaintiff that he would be “forced to try to remove” his hands so that he could
securely lock the cell door flap, Plaintiff responded “go ahead and try.” (Doc. 16-2
at ¶¶ 26-27; Doc. 16-4 at 2).
These facts show that Plaintiff ignored Defendant’s commands to remove
his hands from the cell door flap so that Defendant could secure the flap consistent
with jail rules and procedures. In response, Defendant tried to force the flap closed
with the tip of his boot. In the process, Defendant “repeatedly” kicked Plaintiff’s
hands and wrists. When Defendant could not get the flap to close, Defendant left
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the cell flap open temporarily and left Plaintiff’s unit. The record does not suggest
that additional force was used, and Plaintiff has submitted no evidence that
Defendant continued to kick his arms and hands after the initial attempt to close
the flap was unsuccessful. Thus, under the general principles applicable to the
prison security setting, the court finds that Plaintiff has not demonstrated that
Defendant was on notice that his conduct violated a clearly established right to be
free from excessive force. See e.g., Bennett, 898 F.2d at 1533; Danley, 540 F.3d at
1309.
Because Defendant did not violate a clearly established constitutional right,
Defendant is entitled to qualified immunity on Plaintiff’s excessive force claim.
II.

Deliberate Indifference
In his report and recommendation, the magistrate judge concluded that

questions of fact exist regarding whether Plaintiff suffered a serious medical need
and whether Defendant’s response amounted to deliberated indifference. (Doc. 28
at 11-13). Defendant makes two objections to the magistrate judge’s analysis.
First, Defendant argues that Plaintiff “did not actually allege a claim for deliberate
indifference to serious medical needs.” (Doc. 29 at 14). In this regard, Defendant
requests leave to address the issue in a supplemental special report. (Doc. 29 at
15). Second, Defendant disagrees with the magistrate judge’s conclusion that there

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is a genuine issue of material fact as to whether Defendant violated Plaintiff’s right
to medical care. (Doc. 29 at 14).
The court is not persuaded by Defendant’s argument that Plaintiff did not
allege a deliberate indifference claim. Plaintiff’s amended complaint states that
Plaintiff suffered “serious skin lacerations and swelling of the hands [and] wrists”
and that he “now sees a bone specialist [because] of the wrist injuries.” (Doc. 11 at
4). An inmate grievance form that Plaintiff attached to his amended complaint
alleges that after Defendant injured Plaintiff’s hands and wrists, Defendant denied
his right to emergency medical care. (Doc. 11 at 11). Moreover, the order for
special report specifically explained that Plaintiff’s amended complaint attempts to
state the following claims for relief:
The plaintiff alleges that Deputy Jailer Tommy Johnson used
excessive force and denied him medical care on January 26, 2016.
(Doc. 11). He states he was subjected to “violent physical assault”
by Officer Johnson when Johnson grabbed his lunch tray from the
“tray flap” and attempted to force the flap shut while his “hands,
wrists, and forearms, were still outside the flap.” Id. at 4 and 8.
Johnson allegedly attempted to force the flap door shut by
“repeatedly” kicking the door while the plaintiff’s hands were “still
attached,” causing “serious lacerations and swelling of [the
plaintiff’s] hands and wrists” Id. at 4 and 8. The plaintiff alleges
that Officer Johnson then denied his requests to obtain medical care
for his injuries. Id. at 10-11. He now seeks compensatory damages
and injunctive relief. Id. at 4.
(Doc. 14 at 3) (emphasis in original).
Based on the allegations in Plaintiff’s amended complaint and the order for
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special report, the court finds that Plaintiff did assert a deliberate indifference
claim, and Defendant was on notice that he should respond to the claim.
Therefore, the court DENIES Defendant’s request to address the claim in a
supplemental special report.
Substantively, Defendant objects generally to the magistrate judge’s
conclusion that “there is a genuine issue of material fact as to whether Plaintiff’s
right to medical care was violated by Deputy Johnson.” (Doc. 29 at 14-15).
Defendant argues that “the evidence submitted shows that Plaintiff did in fact
quickly receive medical care at the behest of Deputy Johnson.” (Doc. 29 at 15).
The court disagrees.
Taken in the light most favorable to Plaintiff, the facts demonstrate that
after Defendant kicked Plaintiff’s hands, Plaintiff was “cut, lacerated, beat up,
[and] bruised.” (Doc. 11 at 11). In Defendant’s presence, Plaintiff declared a
medical and psychological emergency because his hands and wrists were swollen,
and he was “bleeding like a stuck pig.” (Doc. 28 at 13; see Doc. 27 at 5). In
response to Plaintiff’s request for medical attention, Defendant told Plaintiff that
“he does not do well with demands from inmates.” (Doc. 11 at 11). Defendant
also told Plaintiff, “Looks a little swollen. That’s not enough blood for a medical
emergency.” (Doc. 27 at 5). Other officers took Plaintiff to the medical unit later
in the day. (Doc. 16-5 at 2). The court finds no error with the magistrate judge’s
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conclusion that Plaintiff has submitted evidence creating a question of fact about
whether he suffered a serious medical injury, whether Defendant had knowledge
of Plaintiff’s medical condition, and whether Defendant acted intentionally or
recklessly to deny or delay access to medical care. (See generally Doc. 28 at 1115).
Unlike Defendant’s objection to the magistrate judge’s excessive force
analysis which challenges both whether the Defendant violated a right and
whether the right was clearly established, Defendant objects only to the magistrate
judge’s findings concerning whether Defendant violated Plaintiff’s right to
medical care. Defendant does not object to the magistrate judge’s findings (or
lack thereof) regarding whether the right to medical care was clearly established.
(See Doc. 14 at 14-15). In the report and recommendation, the magistrate judge
warned the parties that “[o]bjections should specifically identify all findings of
fact and recommendations to which objection is made and the specific basis for
objection.” (Doc. 28 at 15). The court will not make or review objections that the
Defendant did not raise.
III.

Conclusion
Having carefully reviewed and considered de novo “those portions of the

report or specified proposed findings or recommendations to which” Defendant
objects, see 28 U.S.C. § 636(b)(1)(C), the court ADOPTS IN PART the
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magistrate judge’s report and ACCEPTS IN PART and REJECTS IN PART the
magistrate judge’s recommendation.
The court REJECTS the magistrate judge’s recommendation that the court
deny Defendant’s motion for summary judgment on Plaintiff’s excessive force
claim.

Because Defendant is entitled to qualified immunity on Plaintiff’s

excessive force claim, the court GRANTS Defendant’s motion for summary
judgment as to that claim.
The court ACCEPTS the magistrate judge’s recommendation that the court
deny Defendant’s motion for summary judgment on Plaintiff’s deliberate
indifference claim.

Accordingly, the court DENIES Defendant’s motion for

summary judgment as to the deliberate indifference claim.
The court will set Plaintiff’s deliberate indifference claim for trial by
separate order.
The court SETS this matter for a telephone conference at 10:00 a.m. on
January 16, 2019. Plaintiff and counsel for Defendant shall dial 888-363-4734
and enter access code 9659451 to participate in the call.
The court asks the Clerk to mail a copy of this order to Mr. Lewis at the
following addresses: (1) Etowah County Detention Center, 827 Forrest Avenue,
Gadsden, AL 35901 and (2) 206 Edison Road, Gadsden, Alabama 35904.

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When Mr. Lewis last submitted a notice of change of address, he was
incarcerated at the Etowah County Detention Center. Therefore, the court asks the
Clerk to please mail a copy of this order to the chief jailer at the Etowah County
Detention Center. If Mr. Lewis remains in custody at the Etowah County
Detention Center, the appropriate jail official(s) shall make Mr. Lewis
available for the telephone call at 10:00 a.m. on January 16, 2019.
DONE and ORDERED this January 3, 2019.

_________________________________
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE

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