ATKINSON v. THOMAS

Filing 31

ORDER ADOPTING 28 Report and Recommendations; GRANTING 18 Motion for Summary Judgment and DENYING as moot 23 Motion to Appoint Counsel; and DENYING as moot 14 Motion to Appoint Counsel. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 8/10/2015. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION

JERRICK ATKINSON,
Plaintiff,
v.
BRANDON THOMAS,
Defendant.

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CIVIL ACTION NO. 5:14-CV-294 (MTT)

ORDER
United States Magistrate Judge Stephen Hyles recommends granting Defendant
Brandon Thomas’s motion for summary judgment (Doc. 18) and denying the Plaintiff’s
motions to appoint counsel (Docs. 14; 23) as moot. (Doc. 28). The Magistrate Judge
makes this recommendation because he concludes the evidence viewed in the light
most favorable to the Plaintiff does not create a genuine issue of material fact that the
Defendant used malicious and sadistic force in violation of the Eighth Amendment. The
Plaintiff has objected to the Recommendation, and the Defendant has responded to this
objection. (Docs. 29; 30). Pursuant to 28 U.S.C. § 636(b)(1), the Court has considered
the Plaintiff’s objection and has made a de novo determination of the portions of the
Recommendation to which the Plaintiff objects.
In his objection, the Plaintiff argues a genuine of issue of fact exists whether the
Defendant used excessive force in violation of the Eighth Amendment when he
slammed the Plaintiff onto the ground. The Plaintiff was in waist-chains and leg irons
and just had shoulder surgery when the incident occurred. In determining whether there

was a factual issue, the Magistrate Judge considered the five factors discussed in
Campbell v. Sikes:
(1) the extent of injury; (2) the need for application of force; (3) the
relationship between that need and the amount of force used; (4) any
efforts made to temper the severity of a forceful response; and (5) the
extent of the threat to the safety of staff and inmates, as reasonably
perceived by the responsible officials on the basis of facts known to them.
169 F.3d 1353, 1374 (11th Cir. 1999) (citations and internal quotation marks omitted).
The Magistrate Judge concluded that while the use of force factor weighs in favor of the
Plaintiff, the remaining factors do not. See id. (“Force does not violate the Eighth
Amendment merely because it is unreasonable or unnecessary.”). Specifically, the
Plaintiff suffered minor injuries and bleeding. The Defendant perceived a need for force
given the Plaintiff “moved away from [the Defendant’s] grip” after the Plaintiff had just
refused to submit to another officer’s orders.1 The Parties agree the Defendant took the
Plaintiff to medical after he realized the Plaintiff had a pre-existing shoulder injury.
Given the above, the Court agrees there is no genuine issue of fact whether the
Defendant’s use of force violated the Eighth Amendment. Accordingly, the Court
accepts and adopts the findings, conclusions, and recommendations of the Magistrate
Judge. The Defendant’s motion for summary judgment is GRANTED. The Plaintiff’s
motions for the appointment of counsel are DENIED as moot. (Docs. 14; 23).
SO ORDERED, this 10th day of August, 2015.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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“[The} Plaintiff admits that he declined to comply with Officer Fowler’s orders.” (Doc. 28 at 5).
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