HERBERT v. BRYSON et al

Filing 55

ORDER ADOPTING 53 Report and Recommendations and DENYING 49 Motion for Partial Summary Judgment. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 7/5/2017. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JERMARAE HERBERT,
Plaintiff,
v.
Commissioner HOMER BRYSON,
et al.,
Defendants.

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CIVIL ACTION NO. 5:15-CV-270 (MTT)

ORDER
Defendant Register moves for partial summary judgment, asserting that Plaintiff
Herbert’s recovery of compensatory damages for an alleged throat injury caused by
Register’s chokehold is barred by the PLRA because there is no genuine issue of
material fact that the injury was more than de minimis. Doc. 49. According to Register,
Herbert’s claim must be de minimis because “two [days] after the alleged use of force, .
. . [a] Registered Nurse noted no injuries anywhere on his body and further observed
that there was ‘no visible injury.’” Doc. 54 at 1; see also Doc. 49-1 at 1-2.
Magistrate Judge Stephen Hyles disagreed, and recommends denying the
motion because three weeks after the incident, “Plaintiff’s throat was badly swollen and
required a physician to prescribe three different medications in order to treat the
condition.” Doc. 53 at 4. The Magistrate Judge interpreted Register’s motion to argue
that “Plaintiff did not suffer an injury beyond the de minimis threshold even if the Court
assumes Plaintiff’s claim that his swollen throat and tonsils were the result of Defendant
choking Plaintiff.” Id. at 4. The Magistrate Judge, also assuming a causal link between
this injury and Register’s chokehold for the purposes of ruling on the summary judgment
motion, concluded that Herbert’s injuries were more than de minimis. Id. at 6 & n.1.

Register objects. Doc. 54. Register’s objection does not challenge the
Magistrate Judge’s reading of his motion—that “Plaintiff did not suffer an injury beyond
the de minimis threshold even if the Court assumes Plaintiff’s claim that his swollen
throat and tonsils were the result of Defendant choking Plaintiff.” See id. at 1-2. Rather,
Register argues that “a finding that the Plaintiff had ‘enlarged tonsils’ and was
prescribed an antibiotic approximately three weeks after the alleged incident of
November 18, 2014 does not mean that the Plaintiffs throat was ‘badly swollen’ or more
than a de minimus [sic] injury.” Id. at 2. The Court disagrees with Register on this
point. Register seems to miss the Magistrate Judge’s point—if Herbert still had swollen
tonsils three weeks after the chokehold, there is evidence that the chokehold caused a
more than de minimis injury at that time. Register’s emphasis that Herbert was without
visible injury two days after the incident has no bearing on the issue. This consideration
may support an entirely unrelated argument—that Herbert’s swollen tonsils were
unrelated to the alleged chokehold. But Register did not move on that basis.1
The Court has considered Register’s objection, but after a de novo review of the
Recommendation, accepts and adopts the findings, conclusions, and recommendations
of the Magistrate Judge. The Recommendation is ADOPTED and made the order of
this Court. Register’s motion (Doc. 49) is DENIED.
SO ORDERED, this 5th day of July, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

1

Even if Register had made this argument, it seems unlikely to warrant summary judgment. As noted
by the Magistrate Judge, Herbert avers that the medical staff failed to make any examination of his neck
during the initial examination, but in the second examination noticed “swelling and bruising on his neck . .
. , [though failing] to note this on the examination record.” Doc. 53 at 4, 6. Herbert’s latter two
examinations occurred at a different institution than the institution where he was allegedly injured. Doc.
49-1 at 2 & n.2. Accordingly, there appears to be a genuine issue of fact regarding the causal connection
between the chokehold and Herbert’s swollen tonsils three weeks later.

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