MILLER v. PRIMUS
Filing
68
REPORT AND RECOMMENDATION to Deny re 38 MOTION for Summary Judgment filed by ERIC J MILLER; ORDER denying 29 Amended Motion; denying 31 Motion for Settlement; denyin g 36 Motion to Compel; denying as moot 37 Motion to Quash; denying 46 Motion to Appoint Counsel; denying 47 Motion; denying 54 Motion; denying 55 Motion Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 4-4-19. (bdd) Modified on 4/5/2019 to edit docket text (vs).
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ERIC J MILLER,
:
:
Plaintiff,
:
v.
:
:
CO II KENNETH PRIMUS,
:
:
Defendant.
:
________________________________ :
Case No. 5:18-CV-93-TES-MSH
ORDER AND REPORT AND RECOMMENDATION
Pending before the Court is Plaintiff’s motions seeking appointed counsel (ECF
Nos. 29, 46), settlement (ECF No. 31), compelled discovery (ECF Nos. 36, 47, 54, 55),
and summary judgment (ECF No. 38). Also pending is Defendant’s motion to quash (ECF
No. 37). For the reasons explained below, it is recommended that Plaintiff’s motion for
summary judgment be denied. Plaintiff’s remaining motions are denied and Defendant’s
motion to quash is denied as moot.
BACKGROUND
Plaintiff’s claims arise out of an incident that allegedly occurred while he was
imprisoned in the Tier II program at Hancock State Prison on June 6, 2016. Compl. 5, ECF
No. 1.
Plaintiff alleges that on that day, Defendant Primus, a corrections officer,
approached Plaintiff’s cell to serve him his lunch and ice and Plaintiff “stuck his right arm
out of the tray flap in a non-threatening manner to retrieve some ice.” Id. Defendant
Primus, “for unexplained reasons . . . refuse[d] to give plaintiff some ice, then repeatedly
started slamming the metal tray flap on Plaintiff’s right arm” with “force that was very
excessive and unreasonable.” Id.
According to Plaintiff, Defendant Primus caused his “right upper artery underneath
[his] inner right arm” to burst and “blood to spew out of plaintiff[’s] arm profusely.”
Compl. 5. Defendant Primus also failed to notify medical or take any other action to assist
Plaintiff. Id. Plaintiff eventually received medical attention because prison medical
officials “discovered that there was no pulse in plaintiff’s right arm.” Id. at 6. Plaintiff
was transported to a local hospital “where an x-ray was conducted and it was discovered
that [his] right artery had been disconnected due to the impact of the tray flap being
slammed on [his] arm by [Defendant Primus].” Id. Next, Plaintiff was transported to
another medical center where he underwent “emergency surgery[.]” Id.
Plaintiff claims he “still suffers from muscle spasm, numbness, flash backs . . . and
nightmares” as a result of this incident and contends Defendant Primus’ actions violated
his constitutional rights. Compl. 6-7. As a result, Plaintiff seeks compensatory, punitive,
and nominal damages; declaratory relief; a jury trial; costs of this suit; and “any other relief
this Court deems just, proper, and equitable.” Id. at 7.
DISCUSSION
I. Plaintiff’s Summary Judgment Motion
Plaintiff moved for summary judgment on his excessive force and deliberate
indifference claims against Defendant Primus on November 13, 2018 (ECF No. 38). He
argues that “this is an action for damages and there is no genuine dispute as to any material
fact” and he “is entitled to summary judgment and [an] award of damages.” Pl.’s Br. in
Supp. of Mot. for Summ. J. 11, ECF No. 38-1. Defendant Primus responded to Plaintiff’s
2
motion on January 15, 2019 (ECF No. 51). He contends Plaintiff’s motion should be
denied because he “denies that he used excessive force . . . and Plaintiff admits he received
medical treatment within minutes of the incident” and thus “there is a material fact in
dispute[.]” Def.’s Resp. to Pl.’s Mot. for Summ. J. 5, ECF No. 51. Because material facts
remain disputed, it is recommended that Plaintiff’s motion for summary judgment be
denied.
A. Relevant Legal Standards
1. Summary Judgment
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
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.
“When the moving party has the burden of proof at trial, that party must show
affirmatively the absence of a genuine issue of material fact.” United States v. Four
Parcels of Real Prop., 941 F.2d 1428, 1438 (11th Cir. 1991). Such a moving party “must
establish all essential elements of [their] claim or defense in order to obtain summary
judgment.” Coach, Inc. v. Becka, No. 5:11-CV-371-MTT, 2012 WL 5398830, at *2 (M.D.
3
Ga. Nov. 2, 2012). To do so, they “must show that, on all the essential elements of its case
on which it bears the burden of proof at trial, no reasonable jury could find for the non[]moving party.” Four Parcels of Real Prop., 941 F.2d at 1438.
Even if the burden-bearing moving party makes the requisite affirmative showing,
the non-moving party may avoid summary judgment by introducing “significant, probative
evidence demonstrating the existence of a triable issue of fact.” Chanel, Inc. v. Italian
Activewear of Fla., Inc., 931 F.2d 1472, 1477 (11th Cir. 1991). However, the non-moving
party need not produce such evidence until “after the movant has satisfied its burden of
demonstrating there is no genuine dispute on any material fact.” Id.
Under Local Rule 56, a party moving for summary judgment must attach “a separate
and concise statement of material facts to which the movant contends there is no genuine
issue to be tried.” Each fact must “be numbered separately [and] be supported by specific
citation to the record.” M.D. Ga. L.R. 56. “Affidavits and the introductory portions of
briefs” do not satisfy this rule’s requirements. Id. A non-movant must respond “to each
of the movant’s numbered material facts.” Id. “All material facts contained in the moving
party’s statement which are not specifically controverted by specific citation to the record
shall be deemed to have been admitted, unless otherwise inappropriate.” Id.
2. Excessive Force
Whether an Eighth Amendment violation occurred regarding an official’s use of
force “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
4
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 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).
3. 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
5
attention.” Bingham v. Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011) (internal quotation
marks and citation omitted). Deliberate indifference requires a showing of a “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).
Disagreement over the mode of treatment does not constitute deliberate indifference
for the purposes of the Eighth Amendment. See Hamm v. Dekalb Cty., 774 F. 2d 1527,
1575 (11th Cir. 1985). Negligence in treatment, even rising to the level of medical
malpractice, is not deliberate indifference. Estelle v. Gamble, 429 U.S. 97, 106 (1976).
Instead, the treatment must be “so grossly incompetent, inadequate, or excessive as to
shock the conscience or to be intolerable to fundamental fairness.” Harris v. Thigpen, 941
F.2d 1495, 1505 (11th Cir. 1991) (internal quotation marks and citations omitted).
“[C]onduct deliberately indifferent to serious medical needs has included: (1) grossly
inadequate care; (2) a decision to take an easier but less efficacious course of treatment;
and (3) medical care that is so cursory as to amount to no treatment at all.” Melton v.
Abston, 841 F.3d 1207, 1223 (11th Cir. 2016). Indeed, “[m]edical care so inappropriate
as to evidence intentional maltreatment or a refusal to provide essential care violates the
eighth amendment.” Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986).
B. Plaintiff’s Motion
Plaintiff would bear the burden of proof at trial on both his claims against
Defendant. Thus, he must make an affirmative showing on each element of those claims
if he is to be granted summary judgment. Plaintiff has not done that to the extent that no
6
reasonable juror could find for the Defendant at trial. Accordingly, his motion seeking
summary judgment (ECF No. 38) should be denied.
Plaintiff attached a document entitled “Declaration in Support of Plaintiff’s Motion
for Summary Judgment” to his summary judgment motion. Pl.’s Decl. in Supp. of Mot.
for Summ. J., ECF No. 38-2. This document contains numbered paragraphs and assertions
of fact such as “Defendant Primus did repeatedly start slamming the metal tray flap on
[P]laintiff’s right arm[.]” Id. ¶ 4. However, most of its factual assertions are conclusory
and not supported by citations to the record. See id. ¶ 3-8.
While noting that “Plaintiff [did] not cite to the record” in the declaration attached
to his motion, Defendant submitted a response to Plaintiff’s declaration. Def.’s Resp. to
Pl.’s Decl., ECF No. 52. Therein, Defendant responds to each numbered paragraph of
Plaintiff’s declaration and contests many of Plaintiff’s factual assertions. See id. ¶ 4.
Defendant also submitted an affidavit in which he states a version of relevant events that
is very different than Plaintiff’s. Primus Aff., ECF No. 53. Defendant states that “[o]n the
date in question” Plaintiff requested “additional ice” and, when Defendant “informed
[Plaintiff he] would return to Plaintiff’s cell and provide him with more ice” if he had extra,
Plaintiff “threw ice at [Defendant] and punched [him] in the groin.” Id. ¶ 2-4. He also
claims that he “perceived Plaintiff’s actions to be dangerous” and “pushed the tray flap
down once to prevent [] Plaintiff from striking [him] again” with force that “was only
enough to prevent Plaintiff from attacking [him].” Id. ¶ 5. Further, Defendant contests
Plaintiff’s claims concerning his failure to seek medical attention by saying he
“immediately reported [the] incident so that Plaintiff could receive medical attention”
7
which “arrived at [Plaintiff’s] cell within minutes[.]” Id. ¶ 7. Finally, he asserts that
“Plaintiff had a sharp laceration on his arm, and the tray flap is not sharp enough to cut the
Plaintiff’s arm in the manner [he] observed.” Id. ¶ 8.
The contradictory submissions made by Plaintiff and Defendant show that there is
a genuine issue of material fact in this case. Indeed, sworn statements, such as those made
by the parties here, are capable of creating a genuine dispute of material fact even if they
are self-serving in nature. See United States v. Stein, 881 F.3d 853, 858 (11th Cir. 2018).
At this stage, the Court is not responsible for “weighing the evidence and determin[ing]
the truth of the matter” but determining whether questions remain that “properly can be
resolved only by a finder of fact because they may reasonably by resolved in favor of either
party.” Anderson, 477 U.S. at 249-50. The parties’ conflicting statements here present
such a question. Accordingly, Plaintiff’s motion for summary judgment (ECF No. 38)
should be denied.
II. Plaintiff’s Motions Seeking Counsel
On September 13, 2018, Plaintiff filed an amended motion seeking appointed
counsel (ECF No. 29). On December 17, 2018, Plaintiff renewed his motion for counsel
specifically for the purpose of having representation at a “deposition hearing.” 3rd Mot.
for Appointed Counsel 1, ECF No. 46. For the same reasons, both of these motions are
denied.
There is “no absolute constitutional right to the appointment of counsel” in a § 1983
lawsuit. Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987) (per curiam). Indeed,
“appointment of counsel in a civil case . . . is a privilege that is justified only by exceptional
8
circumstances.”
Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985).
Such
circumstances do not exist here. In deciding whether legal counsel should be provided, the
Court considers, inter alia, the merits of Plaintiff’s claims and the complexity of the issues
presented. Holt v. Ford, 862 F.2d 850, 853 (11th Cir. 1989) (en banc). The facts of this
case are not overly complicated and the law governing Plaintiff’s claims is neither novel
nor complex. Accordingly, Plaintiff’s motions seeking appointed counsel (ECF Nos. 29,
46) are denied.
III. Plaintiff’s Discovery Motions
Plaintiff has filed motions seeking an order to compel discovery from Defendant
(ECF No. 36) and subpoenas issued against Defendant and his counsel (ECF Nos. 47, 54,
55). Therein, Plaintiff makes various requests of the Court, including an order compelling
Defendant to “produce for inspection and copying . . . any and all information protected by
the attorney-client privilege[.]” Mot. to Compel 1, ECF No. 36. The Court construes all
of the above mentioned motions as motions to compel and denies them as meritless.
District courts are “allowed a range of choice” in reviewing motions to compel.
Holloman v. Mail-Well Corp., 443 F.3d 832, 837 (11th Cir. 2006). For example, district
courts “can deny a motion to compel [] discovery if it concludes that the questions are
irrelevant.” Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999). Here, it
does not appear that Plaintiff has either not sought from Defendant what he asks the Court
to compel him to produce or asked for materials clearly not subject to discovery such as
privileged material, so Defendant cannot not be described as “failing to make disclosure or
discovery” in violation of procedural rules. See Fed. R. Civ. P. 37(a)(1). Further,
9
Defendant has produced significant amounts of discovery material to Plaintiff already. See
Mot. to Quash Ex. 1, ECF No. 37-1. Accordingly, Plaintiff’s motions seeking compelled
discovery (ECF Nos. 36, 47, 54, 55) are denied. 1
CONCLUSION
For the reasons explained above, it is recommended that Plaintiff’s motion for
summary judgment (ECF No. 38) be denied. Plaintiff’s motions for appointment of
counsel (ECF Nos. 29, 46) and compelled discovery (ECF Nos. 36, 47, 54, 55) are denied.
Plaintiff’s motion seeking “settlement” (ECF No. 31) is also denied as it requests Court
action clearly not within the Court’s jurisdiction—forcing parties to settle a matter.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve 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,
1
Defendant’s motion to quash (ECF No. 36), filed in response to Plaintiff’s first discovery motion,
is accordingly denied as moot.
10
the court may review on appeal for plain error if necessary in the interests of justice.”
SO ORDERED AND RECOMMENDED, this 4th day of April, 2019.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?