Osborne v. Patterson et al

Filing 74

ORDER for the reasons set forth, defendants' motion for summary judgment is GRANTED in favor of the remaining defendants Dexter Brown, Michael Watson, Brian Davis, Benjamin Davis and Jonathan Peavy; granting 56 Motion to Dismiss Benjamin Dav is; finding as moot 57 Motion to Stay; finding as moot 69 Motion to Stay; finding as moot 71 Motion to preclude Osborne from calling witnesses at the evidentiary hearing. The evidentiary hearing scheduled for 10/16/13 is CANCELED.. Signed by Judge Kristi K. DuBose on 9/25/2013. (copy to Korrin Osborne) (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KORRIN OSBORNE,
Plaintiff,
vs.
TONY PATTERSON, et al.,
Defendants.

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CIVIL ACTION 11-00638-KD-N

ORDER
This action is before the Court upon in camera review of plaintiff Korrin Osborne’s
medical records from October 1, 2011 through March 1, 2012 (doc. 45), the answer and special
report which were converted into defendants’ motion for summary judgment (docs. 28, 29),
plaintiff’s response (doc. 32), the report and recommendation (doc. 36), and this Court’s order
adopting in part the report and recommendation (doc. 39). Upon consideration and for the
reasons set forth herein, defendants’ motion for summary judgment is GRANTED in favor of
the remaining defendants Dexter Brown, Michael Watson, Brian Davis, Benjamin Davis, and
Jonathan Peavy. Accordingly, the evidentiary hearing scheduled for October 16, 2013 is
CANCELLED, the motions to stay the hearing (docs. 57, 69) are MOOT, and the motion to
preclude Osborne from calling witnesses at the evidentiary hearing (DOC. 71) is MOOT.1
Previously, the Court denied the motion for summary judgment as to defendants Dexter
Brown, Michael Watson, Brian Davis, and Jonathan Peavy. The Court explained that viewing
the evidence and factual inferences in the light most favorable to Osborne as the non-movant,
there were potential issues of fact that required an evidentiary hearing as to whether 1) Osborne

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 The
 motion
 to
 dismiss
 Benjamin
 Davis
 who
 works
 at
 Fountain
 Correctional
 Facility
 and

has
 never
 been
 assigned
 to
 Holman
 Correctional
 Facility
 (Doc.
 56)
 is
 GRANTED.

was kicked, punched, and choked by defendants Brown, Watson, Davis and Peavy, and 2)
whether Osborne sustained more than a de minimis injury. (Doc. 39) At that time, defendants
had provided the Court with a copy of the Body Chart Documentation dated October 9, 2011
and photographs taken at the time of the incident. (Doc. 28, p. 13, 51-52) The Court ordered
the defendants to produce, under seal, Osborne’s medical records from October 1, 2011 through
March 1, 2012 and set an evidentiary hearing for June 2013. Later, the evidentiary hearing was
rescheduled for October 16, 2013.
In preparation for the hearing, the Court has now conducted a thorough review of
Osborne’s medical records. The medical records relevant to the incident at issue show that on
October 9, 2011, the day of the incident, Osborne was taken to the Health Care Unit and the
nurse completed the Body Chart Documentation. On physical examination, the nurse recorded:
A+ O x 3 Resp[iration] even unlabored. Skin warm/dry to touch [No] distress
noted. Denies pain. Multiple superficial abrasions noted to both lower legs.
[No] redness noted. Ambulate [without] difficulty.
(Doc.45-1, p. 70)
The next day, October 10, 2011, Osborne requested medical services explaining as
follows:
My whole body is in pain. My hip is st ___ing. My throat is hurting, can’t
swallow or talk to loud. My leg is swollen a little, can’t bend it completely and I
have bruises from my feet to inside my mouth. And my right hand nerves are
injured. (sic)
(Doc. 45-1, p. 67)
On October 11, 2011, Osborne complained of pain that “comes and goes” in his right
hand, right hip and left knee. The examining nurse noted that Osborne’s gait and range of
motion were not within normal limits and that he had tenderness, pain with movement, and
tingling but without identifying which part of the body was affected. (Doc. 45-1, p. 68) The

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nurse found that Osborne’s right hand had a “bluish” discoloration with swelling, weakness,
and numbness. (Id.)
Additional comments were made as follows:
Swelling noted @ right hand [with] scratch, and scratch noted @ lt. hand.
Swelling noted @ lt. kneecap, with swelling @ rt. Hip. Limping noted @ rt.
Side. Able to close right hand midway, and able to close lt. hand completely.
Radical pulse present in both hands+. Abrasion noted @ big toe on rt. Foot.
[Patient] stated I have not ate since Sunday and I will not eat until I talk with my
mother. The [Lieutenant] reported [patient] had eaten today, and
he__________.
(Doc. 45-1, p. 69) The nurse’s notes also indicate that Osborne was given “Ibuprofen 200 mg 1
tab 2-3 times/day for 5 days” and that the injury was immobilized with an elastic bandage.
(Id.)2 On October 12, 2011, x-rays were taken of Osborne’s right hand, right hip and left knee.
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(Doc. 45-3, p. 46)
On October 13, 2011, Osborne returned to the Health Care Unit because he was “non-

verbal” (Doc. 45, p. 66). The nurse noted as follows:
Shakes head yes no [in] response to questions, skin WD intact, respiration nonlabored, skin ND intact [No] visible distress noted. [Patient] education provided
“Effects of Starvation.”
Release to DOC to place in _____side observation cell; [with] q 8/day, evening
nite shift
(Doc. 45, p. 66) At this point, Osborne started a hunger strike.4 He signed a receipt for the
educational booklet: “The Effect of Starvation”. (Doc. 45-1, p. 17) His intake of food and

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 The
 Provider’s
 Orders
 indicate
 that
 Motrin,
 200mg,
 4
 tabs,
 twice
 a
 day
 for
 seven
 days

were
 dispensed
 to
 Osborne
 on
 October
 11,
 2011.
 (Doc.
 45-­‐1,
 p.
 21)

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 The
 Provider’s
 Orders
 indicate
 a
 request
 for
 an
 x-­‐ray
 of
 the
 right
 knee
 but
 the
 x-­‐ray

report
 and
 other
 documentation
 indicate
 that
 the
 left
 knee
 was
 x-­‐rayed.
 (Doc.
 45-­‐1,
 p.
 21;

Doc.
 45-­‐3,
 p.
 46)

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 In
 his
 second
 amended
 complaint,
 Osborne
 states
 that
 he
 went
 on
 a
 “hunger
 strike

because
 of
 the
 mental
 and
 physical
 abuse
 he
 was
 going
 through
 because
 of
 this

unnecessary
 attack”.
 (Doc.
 15-­‐1,
 p.
 6,
 ¶
 23)

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water and his vital signs were monitored and documented from October 11, 2011 until October
15, 2011, when Osborne ate half of his lunch. (Doc. 45-1, p. 15-17) The Mental Health Watch
notes show that he spent his time sleeping, being quiet, walking, or sitting and rejected his
meals on two occasions. (Doc. 45, p. 43-45) On October 15, 2011, he was “released from
hunger strike” (doc. 45-1, p. 16) and “released back to cell M-63”. (Doc. 45, p. 43) He was
also treated for a urinary tract infection and prescribed Cipro 500 mg on October 17, 2011 and
Cipro and Pyridium 200mg on October 25, 2011 (Doc. 45-3, p. 13, 40).
On November 7, 2011, Osborne made a request for services as a follow-up for the
examination on October 11, 2011. (Doc. 45-1, p. 63) The nurse noted that the x-rays taken on
October 12, 2011 showed no fracture or dislocation. (Id.) The nurse also noted Osborne’s
current complaint of needing “Motrin for more than 7 days”, his current rate of pain as “6/10”,
and his previous complaints of pain in his right hand, left knee and right hip. (Doc. 45-1, p. 64)
On examination, the nurse found tenderness and pain with movement, assessed pain in
Osborne’s right hand, left knee, and right hip, and prescribed Ibuprofen. (Doc. 45-1, p. 64-65)
The Medication Administration Records show that Osborne was dispensed Motrin 200mg 4
times per day for 7 days in October 2011, Motrin 800mg twice daily for 30 days in November
2011, and “Ibuprofen 800mg–Motrin” twice daily for 30 days in December 2011. (Doc. 45-3,
p. 11-13)
On January 11, 2012, Osborne was transferred from Holman Correctional Facility to
Donaldson Correctional Facility. (Doc. 45-1, p. 62) The nurse who completed the Intra-System
Transfer-Receiving Screening examination indicated that Osborne had “no complaints”, was in
“no distress”, and had no current prescriptions or treatments. (Doc. 45-1, p. 62) The medical

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records do not indicate any prescription for Motrin or Ibuprofen after December 2011 (Doc. 453, p. 8-9, February and March 2012)
In order to establish an Eighth Amendment claim, Osborne must prove both an
objective and subjective component. He must show that the force applied by the defendants
was objectively “harmful enough” to violate the Eighth Amendment’s prohibition of cruel and
unusual punishment and that defendants subjectively “act[ed] with a sufficiently culpable state
of mind,” or rather, acted “maliciously and sadistically to cause harm.” Hudson v. McMillian,
503 U.S. 1, 7–8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). The objective component
“necessarily excludes from constitutional recognition de minimis uses of physical force,
provided that the use of force is not of a sort ‘repugnant to the conscience of mankind.’”
Hudson, 503 U.S. at 9–10 (quoting Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 89
L.Ed.2d 251 (1986)).
As to the subjective component, the Court adopts herein the Magistrate Judge’s
determination that Osborne has failed to submit sufficient evidence that the defendants acted
maliciously or sadistically to cause Osborne harm. Osborne admits that he did not follow the
defendants’ request that he voluntarily remove his boxers to allow the contraband search and
that he argued with the defendants as to whether the search was necessary. (Doc. 15-1, ¶ 13, “I
asked Sgt. J. Peavy to pat me down I have no contraband in my groin area or anus, he replied,
‘we gone make you strip[‘], the Plaintiff replied, ‘This is unnecessary, you all can’t make me
do nothing.’”) Osborne also admits that his hand-cuffed hands came in contact with Officer
Watson, stating that he “grabbed the defendant out of fear.” (Doc. 15-1, ¶ 18)
As to the objective component, the medical evidence indicates that two days after the
incident Osborne’s right hand was swollen, had a scratch and he could close his hand halfway;

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his left hand had a scratch; his left kneecap was swollen; his right hip was swollen; he limped
on his right side; and he had an abrasion on his right big toe. Osborne was treated with an
immobilization bandage. The medical staff prescribed Ibuprofen or Motrin in October,
November, and December. The x-rays of Osborne’s hand, hip and knee did not show any
fracture or dislocation. On November 7, 2011, the nurse noted tenderness and pain in
Osborne’s right hand, right hip and left knee. However, by early January 2012, when Osborne
was transferred to Donaldson Correctional Facility, he no longer complained of orthopedic
pain. His hunger strike ended October 15, 2011 and there is no indication that he resumed the
strike.
Viewing the evidence and all factual inferences reasonably drawn from the evidence in
the light most favorable to Osborne, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970), the
Court finds that there is no genuine issue of material fact that Osborne’s injuries were only de
minimis and do not support an inference that the force applied by the defendants was
objectively “harmful enough” to establish an Eighth Amendment violation for the use of
excessive force. Hudson, 503 U.S. at 10; Wilkins v. Gaddy, 559 U.S. 34, 37-38, 130 S. Ct.
1175, 1178 (2010) (“‘[T]he extent of injury suffered by an inmate is one factor that may
suggest “whether the use of force could plausibly have been thought necessary” in a particular
situation.’ . . . “The extent of injury may also provide some indication of the amount of force
applied.”) (citations omitted); Custom Mfg. & Eng’g, Inc. v. Midway Services, Inc., 508 F.3d
641, 647 (11th Cir. 2007) (“Summary judgment is mandated where a party ‘fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.’”) (citing Johnson v. Bd. of Regents, 263
F.3d 1234, 1243 (11th Cir. 2001)).

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Accordingly, for the reasons set forth herein, defendants are entitled to judgment as a
matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986).
Therefore, the motion for summary judgment as to defendants Dexter Brown, Michael Watson,
Brian Davis, Benjamin Davis, and Jonathan Peavy is GRANTED.
DONE this 25th day of September 2013.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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