Shropshire v. Toney et al
Filing
96
ORDER adopting 92 Report and Recommendation. Defendants' motion for summary judgment (Doc. 83 ) is, therefore, DENIED as to Shropshire's excessive force claim against Defendant Johnson, and GRANTED as to Shropshire's claim against both Defendants for deliberate indifference to serious medical need.; denying 91 Motion for Oral Argument. Signed by Senior Judge Charles R. Butler, Jr. on 11/10/2014. copies to parties. (sdb)
IN
THE
UNITED
STATES
DISTRICT
COURT
FOR
THE
SOUTHERN
DISTRICT
OF
ALABAMA
SOUTHERN
DIVISION
DONNIE SHROPSHIRE,
Plaintiff
v.
DEBORAH TONEY and
CHANDRA JOHNSON,
)
)
)
)
)
)
)
)
)
CIVIL ACTION NO.
10-00470-CB-N
Defendants,
ORDER
This
matter
is
before
the
Court
on
the
Magistrate
Judge’s
Report
and
Recommendation
(R
&
R)
(Doc.
92),
Plaintiff’s
objections
thereto
(Doc.
93)
and
Defendants’
reply
(Doc.
95).
After
due
consideration
of
all
issues,
the
Court
agrees
with
the
Magistrate
Judge’s
conclusion
that
the
Defendants
are
entitled
to
qualified
immunity
on
Plaintiff’s
claim
that
Defendants
were
deliberately
indifferent
to
Plaintiff’s
serious
medical
needs.
Background1
Plaintiff
Donnie
Shropshire,
an
inmate
at
the
Atmore
Work
Release
Center,
an
Alabama
Department
of
Corrections
(ADOC)
facility,
was
injured
after
another
inmate
accidentally
splashed
mop
water
on
his
right
foot.
At
the
time,
Shropshire
did
not
know
of
any
particular
problem,
other
than
his
foot
was
drenched.
He
asked
1
The
following
is
a
synopsis
of
the
facts
and
procedural
background
of
this
case,
which
are
set
out
more
fully
in
the
Report
and
Recommendation.
2
As
detailed
in
the
Report
and
Recommendation
(Doc.
32
at
2-‐4),
this
litigation
has
a
lengthy
history.
The
claims
set
forth
above
are
the
sole
remaining
claims.
3
There
is
a
second
“obvious
clarity”
category,
a
very
narrow
exception,
in
which
“’the
words
of
the
pertinent
federal
statute
or
federal
constitutional
provision
in
some
cases
will
be
specific
enough
to
establish
clearly
the
law
applicable
to
Sergeant
Chandra
Johnson,
whom
he
was
assisting
at
the
time,
for
permission
to
change
his
shoe.
Johnson
denied
the
request
because
she
needed
Shropshire’s
help.
Shropshire
took
off
his
sock
and
put
his
wet
shoe
back
on.
Later
that
day,
he
told
Johnson
his
foot
was
burning
and
felt
irritated.
That
afternoon
Shropshire
took
a
shower
and
saw
that
his
right
foot
was
starting
to
turn
red.
The
foot
was
also
itchy
and
burning
and
later
began
to
swell.
The
next
morning
Shropshire
met
Warden
Deborah
Toney
as
she
arrived
for
work.
He
told
her
about
his
foot
getting
wet,
and
showed
her
his
injured
foot.
At
this
point,
his
foot
was
sweating
and
swollen
and
was
“getting
ready”
to
develop
a
blister.
Shropshire
told
Toney
he
was
in
pain.
Toney
said
there
was
nothing
at
the
facility
that
would
cause
that
and
went
about
her
business.
Shropshire
may
or
may
not
have
explicitly
requested
medical
attention
from
Toney.
Shortly
thereafter,
Shropshire
filled
out
a
medical
request
form.
Inmates
request
medical
care
by
filling
out
a
medical
care
request
slip
and
placing
them
in
a
box.
Nurses
visit
Atmore
Work
Release
daily
and
review
the
medical
request
slips.
ADOC
staff
has
no
role
in
receiving
or
assessing
these
requests.
One
day
later
(two
days
after
the
incident),
Shropshire
was
called
to
the
kitchen
to
do
some
cleaning.
When
he
arrived,
Shropshire
told
the
steward,
Kathy
Stonewall,
that
he
could
not
do
cleaning
duties
because
of
his
foot.
Shropshire
told
her
what
had
happened.
According
to
Stonewall,
the
foot
looked
“awful”,
“nasty”,
had
blisters
that
had
popped,
and
was
“swollen”
and
“puss[ie]”.
Shropshire
was
having
difficulty
walking
and
was
wearing
shower
slides.
Johnson
was
standing
2
nearby
and
appeared
to
be
listening.
Stonewall
told
Shropshire
to
go
lie
down.
Johnson
grabbed
a
squeegee
and
hit
Johnson’s
swollen
foot.
Shropshire
said
nothing
to
Johnson
at
any
time
during
this
encounter.
The
next
day
(three
days
after
the
incident)
Johnson
submitted
another
medical
request
form
stating
that
his
foot
was
numb,
swollen,
and
in
pain.
That
afternoon,
blood
and
puss
were
running
through
his
sock.
Another
inmate
took
him
to
the
shift
office
in
a
wheelchair.
Johnson,
who
was
in
the
office,
directed
another
officer
to
take
Shropshire
to
another
facility
for
medical
attention.
According
to
the
doctor
who
treated
Shropshire,
his
injury
was
consistent
with
a
chemical
burn.
In
addition,
Shropshire
had
developed
a
staph
infection
in
his
foot.
Both
injuries
were
serious,
could
cause
further
damage
if
not
treated
and,
in
the
case
of
the
staph
infection,
could
result
in
death
or
loss
of
the
foot.
Shropshire
asserts
claims
against
Johnson
and
Toney
under
42
U.S.C.
§
1983
for
violation
of
her
constitutional
rights.2
Specifically,
Shropshire
claims
that
Defendants’
refusal
to
provide
medical
treatment
for
his
foot
amounted
to
deliberate
indifference
to
a
serious
medical
need.
In
addition,
Shropshire
assets
that
Johnson
used
unconstitutionally
excessive
force
by
hitting
his
injured
foot.
Defendants
filed
a
motion
for
summary
judgment
on
all
claims.
The
R
&
R
and
Plaintiff’s
Objections
The
Magistrate
Judge
has
recommended
that
summary
judgment
be:
(1)
granted
in
favor
of
both
Defendants
on
the
deliberate
indifference
claim
but
(2)
denied
as
to
the
excessive
force
claim
against
Defendant
Johnson.
Shropshire’s
2
As
detailed
in
the
Report
and
Recommendation
(Doc.
32
at
2-‐4),
this
litigation
has
a
lengthy
history.
The
claims
set
forth
above
are
the
sole
remaining
claims.
3
objection
is
directed
at
the
former.
At
issue
is
the
Magistrate
Judge’s
conclusion
that
the
Defendants
are
entitled
to
qualified
immunity
on
the
deliberate
indifference
claim.
Discussion
The
Report
and
Recommendation
sets
out
the
applicable
law,
which
will
be
restated
here
only
to
the
extent
necessary
to
address
Shropshire’s
objections.
First,
the
Supreme
Court
has
held
that
“deliberate
indifference
to
serious
medical
needs
of
prisoners
constitutes
the
‘unnecessary
and
wanton
infliction’
proscribed
by
the
Eighth
Amendment.”
Estelle
v.
Gamble,
429
U.S.
97,
104
(1996)
(quoting
Gregg
v.
Georgia,
428
U.S.
153,
173
(1976)).
Deliberate
indifference
involves
both
an
objective
component
(i.e.,
a
serious
medical
need)
and
a
subjective
component
(i.e.,
deliberate
indifference
to
that
need).
Bozeman
v.
Orum,
422
F.3d
1265,
1272
(11th
Cir.
2005).
To
satisfy
the
subjective
element
a
plaintiff
must
prove:
“(1)
subjective
knowledge
of
a
risk
of
serious
harm;
(2)
disregard
of
that
risk;
(3)
by
conduct
that
is
more
than
[gross]
negligence.”
Id.
(quoting
Brown
v.
Johnson,
387
F.3d
1344,
1351
(11th
Cir.
2004).
However,
a
prison
official
may
be
immune
from
liability
for
money
damages
based
on
the
doctrine
of
qualified
immunity
even
though
his
conduct
amounted
to
a
constitutional
violation
under
the
foregoing
standards.
The
Eleventh
Circuit
has
explained
qualified
immunity
as
follows:
Qualified
immunity
is
a
guarantee
of
fair
warning.
Under
the
doctrine
of
qualified
immunity,
a
government
official
sued
for
damages
for
injuries
arising
out
of
the
performance
of
discretionary
functions
must
be
“shown
to
have
violated
‘clearly
established
statutory
or
constitutional
rights
of
which
a
reasonable
person
would
have
known.’
”
As
the
Supreme
Court
has
explained,
“qualified
immunity
seeks
to
ensure
that
defendants
‘reasonably
can
anticipate
4
when
their
conduct
may
give
rise
to
liability,’
by
attaching
liability
only
if
‘[t]he
contours
of
the
right
[violated
are]
sufficiently
clear
that
a
reasonable
official
would
understand
that
what
he
is
doing
violates
that
right.’
”
“This
is
not
to
say
that
an
official
action
is
protected
by
qualified
immunity
unless
the
very
action
in
question
has
been
held
unlawful;
but
it
is
to
say
that
in
the
light
of
preexisting
law
the
unlawfulness
must
be
apparent.”
McElligott
v.
Foley,
182
F.3d
1248,
1260
(11th
Cir.
1999)
(internal
citations
omitted).
The
Magistrate
Judge
found
the
Defendants
were
entitled
to
qualified
immunity
on
the
deliberate
indifference
claim
because
the
law
was
not
clearly
established.
Shropshire
takes
issue
with
this
conclusion.
For
our
purposes,
a
right
may
be
clearly
established
in
a
manner
sufficient
to
provide
fair
warning
in
one
of
two
ways.
First,
Shropshire
“may
establish
that
the
right
was
clearly
established
by
pointing
to
a
‘materially
similar
case’”
decided
by
the
Supreme
Court,
the
Eleventh
Circuit,
or
the
Alabama
supreme
court.
Terrell
v.
Smith,
668
F.3d
1244,
1256
(11th
Cir.
2012).
A
materially
similar
case
is
one
that
“is
[not]
fairly
distinguishable”
from
the
circumstances
in
this
case.
Id.
The
Magistrate
Judge
noted
that
Shropshire
had
failed
to
point
to
any
materially
similar
case
that
would
have
put
Defendants
on
notice
that
their
conduct
amounted
to
deliberate
indifference.
Shropshire
insists
that
his
summary
judgment
response
relied
on
similar
prior
precedent,
but
he
has
failed
to
articulate—either
in
his
summary
judgment
response
or
in
his
objection-‐-‐any
material
factual
similarity
between
the
cases
cited
and
the
case
at
hand.
Alternatively,
Shropshire
may
be
able
to
demonstrate
that
the
law
was
clearly
established
by
pointing
to
“broad
statements
of
principle
in
case
law
are
not
tied
to
particularized
facts
.
.
.
[that]
clearly
establish
law
applicable
in
the
future
to
5
different
sets
of
detailed
facts.’”
Id.
(quoting
Vinyard
v.
Wilson,
311
F.3d
1340,
1351
(11th
Cir.
2002)).
This
method
is
referred
to
as
“obvious
clarity”
because
“the
principle
must
be
established
with
‘obvious
clarity’
by
the
case
law
so
that
‘every
objectively
reasonable
government
official
facing
the
circumstances
would
know
that
the
official’s
conduct
[
]
violate[d]
federal
law
when
the
official
acted.”
Id.
(emphasis
added)
(quoting
Anderson
v.
Creighton,
483
U.S.
635,
640
(1987)).3
This
is
a
difficult
hurdle
in
a
deliberate
indifference
case,
most
of
which
“are
far
from
obvious
violations
of
the
constitution.”
Bozeman
422
F.3d
at
1275.
“Obvious
clarity
cases
are
‘rare,’
and
present
a
‘narrow
exception’
to
the
general
rule
of
qualified
immunity.”
Gilmore
v.
Hodges,
738
F.3d
266,
279
(11th
Cir.
2013)
(internal
citations
omitted).
Furthermore,
they
are
rarer
still
in
deliberate
indifference
cases
which
‘are
highly
fact-‐specific.
.
.
Most
cases
in
which
deliberate
indifference
is
asserted
are
far
from
obvious
violations
of
the
Constitution.”
Id.
at
280.
The
broad
statement
of
principle
here
is
this:
A
government
official
acts
with
deliberate
indifference
by
intentionally
delaying
medical
care
to
an
inmate
knowing
that
the
inmate
has
a
serious
medical
condition.
The
question
is
whether
every
reasonable
official
in
Johnson’s
position
or
in
Toney’s
position
would
have
known
that
failure
to
act
immediately
would
amount
to
deliberate
indifference.
Before
examining
that
question,
it
is
helpful
to
consider
the
types
of
actions
that
have
3
There
is
a
second
“obvious
clarity”
category,
a
very
narrow
exception,
in
which
“’the
words
of
the
pertinent
federal
statute
or
federal
constitutional
provision
in
some
cases
will
be
specific
enough
to
establish
clearly
the
law
applicable
to
particular
conduct
and
circumstances
and
to
overcome
qualified
immunity,
even
in
the
total
absence
of
case
law.’”
Id.
at
1257
(quoting
Vinyard,
311
F.3d
at
1350
(emphasis
omitted)).
Shropshire
does
not
contend
that
this
type
of
“obvious
clarity”
applies.
6
amounted
to
“obvious
violations”
under
the
deliberate
indifference
standard.
In
Bozeman,
422
F.3d
at
1275-‐76,
the
Eleventh
Circuit
held
qualified
immunity
did
not
protect
jail
guards
who
did
not
administer
treatment
or
summon
help
for
14
minutes
for
inmate
they
knew
was
unconscious
and
not
breathing.
In
Danley
v.
Allen,
540
F.3d
1298
(11th
Cir.
2008),
jail
guards
sprayed
an
inmate
with
pepper
spray
then
refused
to
allow
appropriate
decontamination
procedures
resulting
in
pain,
conjunctivitis
and
respiratory
problems
to
the
inmate.
In
both
McElligott
v.
Foley,
supra,
a
case
involving
six
months
of
cursory
medical
treatment
for
an
inmate’s
seriously
deteriorating
condition,
and
Lancaster
v.
Monroe
County,
116
F3d
1419
(11th
Cir.
1997),
a
case
involving
the
death
of
an
inmate
due
to
acute
alcohol
withdrawal,
the
appellate
court
found
the
law
to
be
clearly
established
by
pre-‐
existing
case
law
involving
similar
circumstances.
In
this
case,
Defendant
Toney
was
confronted
by
an
inmate
with
a
red,
swollen
foot
that
had
not
yet
developed
blisters
and
was
informed
that
the
condition
had
occurred
after
his
foot
had
been
drenched
by
mop
water
the
previous
day.
Would
every
reasonable
prison
official
have
known
that
failure
to
obtain
immediate
medical
care
for
Shropshire
result
in
a
constitutional
violation?
The
answer
is
no.
The
seriousness
of
the
injury
was
not
apparent
at
that
point.
The
request
for
medical
attention,
if
made,
was
outside
the
established
channels
for
seeking
medical
treatment.
Unlike
the
situation
in
Danley,
Toney
did
not
know
that
a
chemical
was
the
source
of
the
injury.
Unlike
the
jail
guards
in
Bozeman,
Toney
was
not
presented
with
an
injury
that
appeared
to
be
life-‐threatening
or
even
serious.
Finally,
unlike
Lancaster
and
McElligott,
there
was
no
similar
case
law
to
7
provide
guidance.
In
sum,
this
is
not
an
obvious
case,
and
Toney
is
entitled
to
qualified
immunity.
The
issue
is
more
complex
with
respect
to
Defendant
Johnson.
She
knew
how
and
when
the
injury
occurred
and
was,
apparently,
aware
of
its
progression.
According
to
Shropshire,
Johnson
was
listening
when
he
told
Stonewall
he
could
not
work
because
of
his
foot,
and
Johnson
saw
his
red,
swollen,
pussie,
nasty-‐looking
foot.
But
Shropshire
did
not
ask
for
help
and
never
even
spoke
directly
to
Johnson.
Would
every
reasonable
officer
in
Johnson’s
place
have
known,
despite
the
lack
of
request,
that
failure
to
provide
immediate
medical
attention
for
Shropshire
would
result
in
a
constitutional
violation?
While
the
answer
here
is
less
emphatic
than
it
was
with
Toney,
it
is
still
no.
Unlike
the
inmate
in
Bozeman,
Shropshire
could
have
asked
for
help
but
did
not.
Unlike
the
inmate
in
Danley,
Shropshire
did
not
ask
for
help
from
this
Defendant.
Moreover,
Shropshire
had
another
avenue
for
obtaining
medical
attention—the
sick
call
system.
A
reasonable
official
in
Johnson’s
position—to
whom
no
request
for
medical
assistance
was
made—could
reasonably
assume
that
Johnson
would
obtain
medical
attention
through
the
sick
call
system.
Finally,
while
the
Court
agrees
with
the
Magistrate
Judge’s
conclusion,
one
statement
in
the
Report
and
Recommendation
bears
further
clarification.
The
concluding
paragraph
of
the
qualified
immunity
discussion
states,
in
part:
“In
sum
the
undersigned
finds
persuasive
the
Defendants’
argument
that,
under
the
specific
facts
of
this
case,
they
were
reasonably
entitled
to
rely
on
a
belief
that
Shropshire
was
pursuing
and
would
obtain
medical
aid
through
normal
prison
channels.”
(R
&
R
at
26,
Doc.
92.)
Shropshire
objects
to
this
conclusion
because,
as
he
points
out,
8
there
is
no
evidence
that
either
Defendant
had
such
a
belief.
(Pl.’s
Objection
9,
Doc.
93.)
The
question,
though,
is
whether
every
reasonable
official
with
all
of
the
knowledge
Defendants
had
(including
the
existence
of
the
sick
call
system)
would
have
felt
compelled
to
obtain
immediate
medical
treatment
for
Shropshire.
Defendants’
reliance
is
irrelevant.
A
reasonable
official
in
either
Defendant’s
position
could
have
taken
that
system
into
account
in
deciding
whether
to
act.
Stated
differently,
in
light
of
the
sick
call
system
and
the
apparent
minor
injury
(in
Toney’s
case)
or
the
lack
of
any
specific
request
for
medical
assistance
(in
Johnson’s
case),
the
law
was
not
so
obviously
clear
that
every
reasonable
prison
official
in
their
respective
circumstances
would
have
known
that
their
conduct
amounted
to
deliberate
indifference.
Conclusion
For
the
foregoing
reasons,
the
Court
overrules
the
Plaintiff’s
objections
and
ADOPTS
the
Magistrate
Judge’s
Report
and
Recommendation
(Doc.
92).
Defendants’
motion
for
summary
judgment
(Doc.
83)
is,
therefore,
DENIED
as
to
Shropshire’s
excessive
force
claim
against
Defendant
Johnson,
and
GRANTED
as
to
Shropshire’s
claim
against
both
Defendants
for
deliberate
indifference
to
serious
medical
need.
The
Defendant’s
motion
for
oral
argument
(Doc.
91)
is
DENIED.
DONE
and
ORDERED
this
the
10th
day
of
November,
2014.
s/Charles
R.
Butler,
Jr.
Senior
United
States
District
Judge
9
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