KELLY v. JONES et al

Filing 65

ORDER denying 45 57 Motions to Compel. REPORT AND RECOMMENDATION re 49 MOTION for Judgment in His Favor filed by JERMARKUS ENOUCH KELLY, 50 MOTION for Summary Judgment filed by JONES, PLEAS. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 6/21/2017. (efw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JERMARKUS ENOUCH KELLY,
Plaintiff,
VS.
Officer JONES, et al.,
Defendants
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NO. 5:15-CV-0337-CAR-MSH

ORDER AND
RECOMMENDATION
Presently pending before the Court is Defendants’ motion for summary judgment
(ECF No. 50). The Court recommends that Defendants’ motion be granted. Additionally
pending is Plaintiff’s “Dispositive Motion for Judgment in His Favor” (ECF No. 49).
The Court recommends that Plaintiff’s motion be denied. Also pending are Plaintiff’s
motions to compel (ECF Nos. 45, 57). Those motions are denied.
BACKGROUND
Plaintiff filed claims for relief pursuant to 42 U.S.C. § 1983 against multiple
prison officials at Hancock State Prison (“HSP”) in Sparta, Georgia, arising from an
alleged slamming of Plaintiff’s hand in the tray slot on the door of Plaintiff’s cell. See
generally Compl., ECF No. 1. Plaintiff’s claims for excessive force against Defendant
Jones and for deliberate indifference against Defendant Pleas remain.
Plaintiff generally alleges that while incarcerated at HSP on May 26, 2014 at
approximately 5:35 pm, Plaintiff was in his cell awaiting delivery of his evening food

tray from prison officials through the tray slot on his cell door. Compl. 2. Plaintiff
contends that he did not receive his vegan food tray, and requested that Defendant Jones
bring him his tray. While making this request, Plaintiff’s right hand was positioned in the
tray flap. Id. Plaintiff avers that Defendant Jones “then became very hostile and started
slamming the tray flap close[d] on [Plaintiff’s] hand.”

Id.

Plaintiff alleges that

Defendant Jones slammed the try flap on Plaintiff’s fingers four times, locked the tray
flap closed with Plaintiff’s pinky finger still trapped in the flap, and walked away. Id.
Plaintiff contends that Plaintiff spoke to other officers about the incident who then
called Defendant Pleas to Plaintiff’s cell. Id. at 3. Plaintiff avers that he showed his
injured pinky to Defendant Pleas, informing Defendant Pleas that he was experiencing “a
lot of pain and [Plaintiff] needed to see medical right away.” Id. Plaintiff alleges that
Defendant Pleas then “became deliberately indifferent” and refused to send Plaintiff for a
medical evaluation. Id. Plaintiff contends that he was taken to medical the next day,
May 27, 2014, and was eventually diagnosed with a fractured right pinky. Id.
DISCUSSION
I.

Defendants’ Motion for Summary Judgment
A.

Summary Judgment Standard

Summary judgment may be granted only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). In determining whether a genuine dispute of material fact
exists to defeat a motion for summary judgment, the evidence is viewed in the light most
favorable to the party opposing summary judgment, drawing all justifiable inferences in
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the opposing party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A
factual dispute is genuine if the evidence would allow a reasonable jury to return a
verdict for the nonmoving party. Id.
B.

Undisputed Material Facts

Defendant Jones was employed as an HSP officer from August 2013 to June 2014
and was on duty on May 26, 2014. Jones Aff. ¶ 5, ECF No. 50-5. Plaintiff was
incarcerated at HSP in cell 217 of building G1 as a Tier II inmate posing “a threat to the
safe and secure operation of the facility.” Jones Aff. ¶¶ 4-5; Kelly Dep. 27:23-25, ECF
No. 50-6. The door to Plaintiff’s cell has a rectangular, heavy, steel flap through which
inmates are delivered their meal trays. Id. at ¶ 6; Kelly Dep. 36:03-15. The flap may
only be opened by officers from the outside, and the flap must remain closed unless an
officer has opened the flap to pass an inmate a tray or to handcuff an inmate. Jones Aff. ¶
6.
When Defendant Jones passed Plaintiff’s cell on the afternoon of May 26, 2014,
Plaintiff was propping the flap on his cell door open with his hand. Jones Aff. ¶ 8; Kelly
Dep. 29:03-13, 31:06-19. Inmates are forbidden from “bucking the flap” by propping
open a flap and placing hands through the flap without permission. Jones Aff. ¶ 8; Kelly
Dep. 32:01-05, 41:16-42:02. Plaintiff was propping open the flap in an attempt to get an
officer’s attention to request service of his vegan meal tray. Jones Aff. ¶ 9; Kelly Dep.
31:06-25, 33:01-08. Defendant Jones ordered Plaintiff to remove his hand and cease
propping open the flap. Jones Aff. ¶ 9; Kelly Dep. 27:13-20, 32:13-23. Plaintiff’s hand
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was struck by the flap. Kelly Dep. 30:16-31:05, 34:16-35:02, 36:19-37:04, 38:13-39:01.
Defendant Jones locked Plaintiff’s flap so that Plaintiff could not open the flap from
inside the cell. Jones Aff. ¶ 11; Kelly Dep. 31:03-05, 34:25-35:02. Defendant Jones then
walked away from Plaintiff’s cell. Jones Aff. ¶ 13; Kelly Dep. 31:03-05, 38:16, 42:2143:02. Defendant Pleas was also an officer on duty at HSP on the afternoon of May 26,
2014. Pleas Aff. ¶ 6 & Ex. A, ECF No. 50-4.
C.

Excessive Force Claim Against Defendant Jones

Defendants move for summary judgment, arguing that Plaintiff’s excessive force
claim against Defendant Jones fails as a matter of law. Specifically, Defendants argue
that Plaintiff’s actions represented a security threat which justified the use of force by
Defendant Jones. Mem. in Supp. of Summ. J. 4-10, ECF No. 50-2. Plaintiff responded
to Defendants’ motion on November 14, 2016. (ECF No. 54.) The Court recommends
that Defendants’ motion be granted because the uncontested evidence shows that
Defendants’ use of force was not malicious or sadistic.
Whether an Eighth Amendment constitutional violation occurred “ultimately turns
on whether force was applied in a good faith effort to maintain or restore discipline[,] or
[whether force was applied] maliciously and sadistically for the very purpose of causing
harm.” Hudson v. McMillian, 503 U.S. 1, 6 (1992) (internal quotation marks and citation
omitted). In order to determine if force was used “maliciously and sadistically to cause
harm,” the Court looks to: “(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; (5) the extent of the threat to the safety of
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staff and inmates, as reasonably perceived by the responsible officials on the basis of
facts known to them.” Campbell v. Sikes, 169 F.3d 1353, 1375 (11th Cir. 1999) (internal
quotation marks and citation omitted). “When considering these factors, we give a wide
range of deference to prison officials acting to preserve discipline and security[.]”
Fennell v. Gilstrap, 559 F.3d 1212, 1217 (11th Cir. 2009) (internal quotation marks and
citation omitted). “[N]ot every malevolent touch by a prison guard gives rise to a federal
cause of action.” Wilkins v. Gaddy, 599 U.S. 34, 57 (2010).
The parties have conflicting versions of the facts. These conflicting versions are
supported by affidavits and depositions by the parties. See, e.g., Jones Aff.; Kelly Dep.
Under Plaintiff’s version of the facts, Defendant Jones purposely struck Plaintiff’s hand
with the tray slot flap and ignored Plaintiff’s screams after locking Plaintiff’s right pinky
in the flap. Id. at 36:19-37:03. The parties agree that Defendant Jones ordered Plaintiff
to remove Plaintiff’s hand from the flap and locked the flap after it shut. The Court
cannot make credibility determinations at the summary judgment stage to determine
whose version of the events is believable. See, e.g., Hasemeier v. Shepard, 252 F. App’x
282, 285 (11th Cir. 2007). However, viewing the evidence in the light most favorable to
Plaintiff, the evidence fails to present a question of fact as to whether Defendant Jones
acted maliciously and sadistically to use excessive force.
Evidence shows a legitimate need for the application of force. Plaintiff admits that
his hand was placed in the flap and that Defendant Jones ordered Plaintiff to remove
Plaintiff’s hand from the flap. Kelly Dep. 27:13-20, 32:13-23. Plaintiff also admits that
he refused to comply with the order to remove his hand from the flap, even after
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Defendant allegedly struck his hand with the flap four times. Kelly Dep. 27:13-20,
37:01-07. Prison guards may use force in order to restore order when an inmate creates a
disturbance. Bennett v. Parker, 898 F.2d 1530, 1533 (11th Cir. 1990). Plaintiff created a
disturbance for which the use of force was permitted by refusing to comply with the order
to retract his hand from the tray flap. Brockington v. Stanco, 5:14-cv-38, 2016 WL
4443204, at *3-4 (M.D. Ga. May 25, 2016) (holding that an inmate’s refusal to remove
his arm from a tray flap constituted a disturbance requiring the use of force).
Furthermore, Courts have specifically found that an inmate sticking his arm through a
cell tray flap constitutes a risk to safety, justifying the use of force. Id. at *5-6 ( “At least
one officer’s attention was diverted from maintaining security throughout the facility to
the task of forcing Plaintiff to comply with orders.”); Moore v. James, 7:09-cv-98, 2013
WL 1296775, at *3 (M.D. Ga. Mar. 27, 2013) (holding that an open tray flap presents
general safety risks).
Defendant Jones’ use of force in closing and locking the flap was proportional to
the need for force. Even if Defendant Jones slammed the flap onto Plaintiff’s hand and
locked the flap with Plaintiff’s pinky still in the flap, as Plaintiff alleged, such use of
force would not be excessive. See Johnson v. Moody, 206 F. App’x. 880, 884 (11th Cir.
2006) (holding that a guard’s kicking a flap and breaking an inmates finger did not
constitute excessive force when the inmate refused to remove his arm from the flap).
Additionally, although Plaintiff alleges that his finger was broken, medical examinations
revealed that Plaintiff’s middle finger joint injury was routine, only requiring Tylenol and
a splint for treatment. Thomas Aff. ¶¶ 6-9 & Attach. 1 at 7, ECF No. 50-3. The force
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utilized by Defendant Jones on Plaintiff, in light of Plaintiff’s actions presenting a
security threat, thus fails to rise to an excessive level.

Accordingly, the Court

recommends that Plaintiff’s claim against Defendant Jones be dismissed.
D.

Deliberate Indifference Claim Against Defendant Pleas

Defendants move for summary judgment, arguing that Plaintiff’s deliberate
indifference to medical needs claim against Defendant Pleas similarly fails as a matter of
law. Mem. in Supp. of Summ. J. 10-14. The Court recommends that Defendants’ motion
be granted because the uncontested evidence shows that Plaintiff did not suffer a serious
injury, Defendant Pleas was not deliberately indifferent towards Plaintiff’s needs, and
Defendant did not cause Plaintiff’s injury through deliberate indifference.
“The Eighth Amendment’s prohibition against cruel and unusual punishments
protects a prisoner from deliberate indifference to serious medical needs.” Kuhne v. Fla.
Dep’t of Corr., 745 F.3d 1091, 1094 (11th Cir. 2014) (internal quotation marks and
citations omitted). “[T]o prevail on a deliberate indifference to serious medical need
claim, [a plaintiff] must show: (1) a serious medical need; (2) the defendants’ deliberate
indifference to that need; and (3) causation between that indifference and the plaintiff’s
injury.” Mann v. Taser Int’l, 588 F.3d 1291, 1306-07 (11th Cir. 2009).
“A serious medical need is one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.” Bingham v. Thomas, 654 F.3d 1171,
1176 (11th Cir. 2011) (internal quotation marks and citation omitted). Here, Plaintiff
suffered a “slightly swollen” middle pink joint. Thomas Aff. ¶ 9 & Attach. 3 at 11.
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Plaintiff was prescribed Tylenol, instructed to apply ice, and told that the finger would
heal itself if Plaintiff wore a splint. Thomas Aff. ¶¶ 6, 9, Attach. 1 at 7, Attach. 3 at 11.
Plaintiff also claims that his pinky continues to pop and sometimes causes him pain when
it is cold. Kelly Dep. 26:02-16. Courts have held that broken or bleeding fingers do not
constitute serious injuries. Duran v. Donaldson, 663 Fed. App’x. 684, 689 (10th Cir.
2016) (holding that “decreased grip strength and discomfort in [a] finger do not rise to the
level of an objectively, sufficiently serious injury” where plaintiff broke a finger); Sonds
v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp. 2d 303, 311 (S.D.N.Y. 2001)
(“Certainly . . . a cut finger, even where skin is ‘ripped off’ . . . does not, as a matter of
law, qualify as an injury severe enough to justify civil rights relief.”) Similarly, here, the
injury to Plaintiff’s finger fails to rise to the level of a serious injury necessary to sustain
a deliberate indifference claim.
Even if the damage to Plaintiff’s finger constituted a serious injury, Plaintiff does
not show that Defendant Pleas acted with deliberate indifference. In order to succeed on
a deliberate indifference claim, a prisoner must show that a prison official had “subjective
knowledge of a risk of serious harm” and “disregard of that risk . . . by conduct that is
more than mere negligence.” Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004)
(citation omitted). Here, Plaintiff contends that Defendant Pleas witnessed Plaintiff’s
injured finger but did not contact medical staff immediately. Kelly Dep. 43:11-44:25.
Plaintiff was seen by medical staff at 2:40 pm the next day, May 27, 2014—less than
twenty-four hours after the alleged injury occurred. Thomas Aff. ¶ 7 & Attach. 1. At
that appointment, medical staff described Plaintiff’s wound as “routine” and “not urgent
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or serious.” Thomas Aff. ¶ 7 & Attach. 1 at 7. A defendant acts with deliberate
indifference by intentionally delaying treatment of an inmate only when such delay
exacerbates the inmate’s existing injury. Lindley v. Birmingham, 652 F. App’x. 801, 807
(11th Cir. 2016) (citations omitted). Plaintiff does not explain how Defendant Pleas’
failure to immediately take Plaintiff to medical exacerbated Plaintiff’s injury. Because
Plaintiff only suffered light swelling, requiring ice and a splint, Defendant Pleas’ alleged
actions did not contribute to any worsening of Plaintiff’s existing finger injury. Thus, the
Court recommends that Defendants’ motion for summary judgment on Plaintiff’s
deliberate indifference claim be granted as well.
II.

Plaintiff’s Motions
On October 6, 2016, Plaintiff filed a “Dispositive Motion for Judgment in His

Favor” (ECF No. 49). The Court construes Plaintiff’s motion as a motion for summary
judgment on his claims of excessive force against Defendant Jones and deliberate
indifference against Defendant Pleas. Because the Court recommends that Defendants’
motion for summary judgment should be granted on both of Plaintiff’s claims, the Court
recommends that Plaintiff’s motion for summary judgment be denied.
On September 2, 2016, Plaintiff filed a motion to compel (ECF No. 45),
requesting that the Court require Defendants to respond to Plaintiff’s Rule 33
interrogatories (ECF Nos. 34, 35) which were submitted to the Court on July 28, 2016.
Plaintiff alleges that Defendants failed to respond to those interrogatories.

Mot. to

Compel 1, ECF No. 45. Defendants responded on September 14, 2016, alleging that they
responded to all of Plaintiff’s interrogatories. Resp. to Mot. to Compel 2, ECF No. 46.
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In his “Dispositive Motion for Judgment in His Favor,” Plaintiff cites to Defendants’
responses to interrogatories as evidence to support his motion. Dispositive Mot. for J. in
His Favor 11-19, ECF No. 49. Thus, it is clear that Plaintiff has received the responses to
interrogatories he requests in his motion to compel. Accordingly, the Court denies
Plaintiff’s first motion to compel.
On December 1, 2016, Plaintiff filed another motion to compel (ECF No. 57),
requesting that the Court require Defendants to submit to Plaintiff documents from
Plaintiff’s Rule 34 production requests (ECF Nos. 40, 41) which were submitted to the
Court on August 25, 2016. Plaintiff alleges that Defendants failed to provide Plaintiff
with the documents he requested.

Mot. to Compel 1-2, ECF No. 57.

Defendants

responded on December 8, 2016, alleging that, even though Plaintiff’s requests were
untimely, they responded in good faith to Plaintiff’s production requests. Resp. to Mot.
to Compel 2-3, ECF No. 61. Defendants also submitted copies of each of their responses
to Plaintiff’s production requests which were sent to Plaintiff on November 15, 2016.
Resp. to Mot. to Compel Exs. A, B, ECF No. 61. Thus, it is clear that Plaintiff has
received Defendants’ responses to his production requests.

Accordingly, the Court

denies Plaintiff’s second motion to compel.
CONCLUSION
For the foregoing reasons, it is recommended that Defendants’ motion for
summary judgment (ECF No. 50) be granted and that Plaintiff’s “Dispositive Motion for
Judgment in His Favor” (ECF No. 49) be denied as moot. Plaintiff’s motions to compel
(ECF Nos. 45, 57) are denied. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve
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and file written objections to this Recommendation, or seek an extension of time to file
objections, within fourteen (14) days after being served with a copy hereof. The District
Judge shall make a de novo determination of those portions of the Recommendation to
which objection is made. All other portions of the Recommendation may be reviewed for
clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a]
party failing to object to a magistrate judge’s findings or recommendations contained in a
report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1)
waives the right to challenge on appeal the district court’s order based on unobjected-to
factual and legal conclusions if the party was informed of the time period for objecting
and the consequences on appeal for failing to object. In the absence of a proper objection,
however, the court may review on appeal for plain error if necessary in the interests of
justice.”
SO RECOMMENDED, this 21st day of June, 2017.
S/Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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