WHEELER v. GRIER et al

Filing 121

ORDER accepting 93 , 118 Report and Recommendation. Signed by William Terrell Hodges on 10/25/2017. The Clerk shall enter judgment as follows: "The Plaintiff's Motion for Summary Judgment, ECF No. 76 , is denied, and Defendants' Motion for Summary Judgment, ECF No. 106 , is granted." The Clerk is directed to close the file. (kdm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION

JIMMY LEE WHEELER,
PLAINTIFF,
-vs-

Case No. 5:15-cv-00232-WTH-GRJ

DERRICK JOHNSON, J FOSTER,
DEFENDANTS.
______________________________/
ORDER
This matter is before the Court on ECF No. 93, a Report and Recommendation
that Plaintiff’s motion for summary judgment, ECF No. 76, be denied. Plaintiff filed
objections at ECF No. 99, which the Court has reviewed. Also pending is ECF No. 118,
a Report and Recommendation that the motion for summary judgment filed by Foster
and Johnson, the only remaining defendants in this case, be granted. ECF No. 106.
Plaintiff filed objections at ECF No. 119, which he amended at ECF No. 120. The Court
has conducted a de novo review of all objected-to portions of both Reports and
Recommendations. Upon consideration, both Reports and Recommendations are
accepted, the Plaintiff’s motion for summary judgment is denied, and the Defendants’
motion for summary judgment is granted.
In his complaint, Plaintiff alleges that he has been denied meals a total of 28
times, causing him to lose more than 50 pounds. (ECF No. 1 at 12.) Defendant
Johnson allegedly denied Plaintiff seven meals in retaliation for talking. (Id. at 8.)
Defendant Johnson informed Plaintiff that he was following his supervisor’s instructions

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to deny inmates the “privilege” to eat if they were caught violating the chow hall’s notalking policy. (Id.) Plaintiff says Defendant Foster also denied Plaintiff four meals for
talking. (Id. at 9.) Furthermore, Plaintiff says that on April 30, 2015, Defendant Johnson
cancelled Plaintiff’s sick call appointment, “claiming Plaintiff’s name was not on the list.”
(Id. at 8.) Sergeant Spooner checked the sick call list and later informed Plaintiff that he
indeed had an appointment. (Id.) Plaintiff says the denial of medical treatment has
caused him “irreparable nerve related illnesses that are now life threatening.” (Id. at
13.) Plaintiff has filed numerous formal and informal grievances related to the denial of
meals and medical care. (Id. at 1–2.) Plaintiff characterizes these claims as
Defendants retaliating against him for talking and filing grievances in violation of the
First Amendment, and acting with deliberate indifference to Plaintiff’s serious medical
needs and denying Plaintiff meals, both in violation of the Eighth Amendment. (Id. at
11.)
First, the Court agrees with the Magistrate Judge that Plaintiff’s motion for
summary judgment should be denied. ECF No. 76. In his motion, Plaintiff appears to
argue that Defendants failed to timely answer his complaint, and when they did, they
failed to answer any of the allegations in Plaintiff’s complaint. Plaintiff therefore argues
that Defendants failed to defend thereby warranting judgment as a matter of law in
Plaintiff’s favor. Plaintiff previously had moved for default because none of the
Defendants had responded to the complaint. It turned out, however, that no returns of
service had been filed, and service had not yet been executed. Accordingly, the
Magistrate Judge denied the motion for default. Once they were served, the
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Defendants then timely filed a motion to dismiss. On September 22, 2016, Plaintiff filed
a motion for leave to file amended request for entry of default for failure to answer the
complaint. (ECF No. 63.) Plaintiff again alleged that Defendants failed to timely answer
the complaint. (Id.) The Court denied Plaintiff’s motion on September 30, 2016,
explaining that under Fed. R. Civ. P. 12, a Defendant may serve a motion to dismiss for
failure to state a claim as a responsive pleading in lieu of an answer. (ECF No. 64.)
The same reasoning applies to Plaintiff’s motion for summary judgment, in which he
complains of “defense counsel’s failure to answer any of the paragraphs filed in the
Complaint’s Statement of Facts” and that Defendants’ response “fails to answer the
Complaint as required under [Rule 12].” ECF No. 76 at 1-2. While the timely filed
motion to dismiss was pending, the Defendants were not required to answer every
charge in the Complaint. Then, in the Answer at ECF No. 74, Defendants do, in fact,
respond appropriately to the allegations of the Complaint. Accordingly, the Court
agrees with the Magistrate Judge that Plaintiff’s motion for summary judgment should
be denied.
The Magistrate Judge also correctly recommends that Defendant’s motion for
summary judgment should be granted. First, with regard to the sick call claim, Plaintiff
has offered no evidence that the three-day delay before seeing the nurse worsened his
medical condition in any way. Also, Plaintiff could have declared a medical emergency
if his condition had worsened. Second, Plaintiff admitted in his deposition that he has
no knowledge that Defendants denied him meals out of retaliation. Instead, Plaintiff
readily admits that Defendants denied him meals because they were ordered to do so
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to enforce the prison’s no-talking during mealtime policy. Plaintiff does not argue that
prison officials cared about the content of any speech during meal times. Instead, the
rule relates only to administering a safe and efficient meal time. Thus, Defendants’
conduct did not violate Plaintiff’s First or Eighth Amendment rights. Also, even if they
had, however, Plaintiff has pointed to no authority clearly establishing that Defendants’
conduct—which is undisputed in this case—was objectively unreasonable. See Lewis
v. City of West Palm Beach, 561 F.3d 1288, 1291 (11th Cir. 2009) (once the
government official proves she was acting within the scope of her discretionary
authority, the burden shifts to the Plaintiff to demonstrate that the Defendant’s conduct
violated a clearly established constitutional right). Defendants would therefore be
entitled to qualified immunity. Finally, Plaintiff’s injuries are de minimis and thus he
could not receive compensatory or punitive damages under 28 U.S.C. § 1197e(e).
For the above reasons, it is hereby
ORDERED and ADJUDGED:
The Report and Recommendation of the Magistrate Judge at ECF No. 93 and
the Report and Recommendation of the Magistrate Judge at ECF No. 118 are
accepted and incorporated herein. The Clerk shall enter judgment as follows:
“The Plaintiff’s Motion for Summary Judgment, ECF No. 76, is denied, and
Defendants’ Motion for Summary Judgment, ECF No. 106, is granted.” The
Clerk is directed to close the file.
DONE and ORDERED at Gainesville, Florida this 25th day of October, 2017.

Case No: 5:15-cv-00232-WTH-GRJ