NESBITT v. LONG et al
ORDER ADOPTING in part and REJECTING in part 82 Report and Recommendations; GRANTING 66 Motion for Summary Judgment; and GRANTING in part and DENYING in part 68 Motion for Summary Judgment. Ordered by CHIEF DISTRICT JUDGE MARC T TREADWELL on 3/31/2021. (Attachments: # 1 Exhibit A - Chronology) (kat)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
EMMANUEL JAMES NESBITT,
Sheriff GARY LONG, et al.,
CIVIL ACTION NO. 5:19-cv-67 (MTT)
United States Magistrate Judge Charles H. Weigle recommends granting in part
and denying in part defendants’ motions for summary judgment (Docs. 66; 68). Doc.
82. Three objections have been filed. Specifically, Defendants Sgts. Bell and
Henderson, who are officers at the Butts County Detention Center (“BCDC”), have
objected; Dr. Peter Wrobel, MD, Nancy Rowell-Crane, NP, Melinda Burdette, LPN, and
Ashlee O’Quinn, LPN, who through Southern Correction Medical Services, Inc. (“SCM”)
provide contract medical services at BCDC and are referred to as the SCM defendants,
have objected; and pro se plaintiff Emmanuel James Nesbitt has objected. Docs. 83;
84; 87. Pursuant to 28 U.S.C. § 636(b)(1), the Court reviews the Recommendation de
I. BACKGROUND 1
Emmanuel James Nesbitt has been a paraplegic since August 22, 2007. Docs.
38 at 7; 66-7 at 72:20-24. Nesbitt’s paralysis severely limits his movement and the
ability to control his waist, back, stomach, bladder, and bowels. Doc. 38 at 7. His
physical limitations require Nesbitt to, among other things, wear an adult diaper full-time
and use catheters when he uses the restroom. Docs. 38 at 7; 66-7 at 83:22-84:19.
However, if provided catheters, diapers, an accessible toilet, an accessible shower, and
a wheelchair, Nesbitt can manage his toileting needs on his own. Doc. 66-7 at 83:2284:19.
On September 21, 2018, Nesbitt was arrested in Cartersville. Doc. 66-7 at
17:14-25. On September 25, 2018, Nesbitt was transferred to the BCDC. Docs. 66-7 at
17:14-25; 68-3 at 4. According to Nesbit, Henderson was on duty when he arrived at
BCDC, and Bell replaced Henderson later that night. Docs. 66:7 at 19:5-9; 68-3 at 3-5.
The Court will address other relevant facts in the course of ruling on the parties’
In their objection, Defendants Henderson and Bell argue that because Nesbitt did
not respond to their motion for summary judgment, the facts in their statement of
undisputed facts are deemed admitted and thus, summary judgment in their favor is
appropriate. Doc. 83 at 7-8. Nesbitt’s failure to respond was not because of a lack of
opportunity. The Magistrate Judge granted Nesbitt three extensions to respond to the
motions for summary judgment. Docs. 75; 76; 77; 78; 79; 80. Eventually, Nesbitt
informed the Court by letter that he had retained counsel and that he was “exploring my
Only facts necessary to explain the Court’s ruling are stated.
options that I would like to reopen my case at a later time when I actually can secure
proper counsel.” Doc. 81. No counsel appeared, and Nesbitt never responded to either
motion for summary judgment.
The Court can understand the defendants’ frustration. Nesbitt’s complaint makes
serious, in some instances horrific, allegations that, in part, are refuted by the medical
records, the authenticity and accuracy of which are not disputed, and by Nesbitt’s
deposition testimony. See generally Docs. 66-3; 66-5; 66-7; 68-4; 68-5; 70. Still, the
Court “cannot base the entry of summary judgment on the mere fact that the motion
was unopposed, but, rather, must consider the merits of the motion.” United States v.
One Piece of Real Property, 363 F.3d 1099, 1101 (11th Cir. 2004) (citation omitted).
Also, the Court must “ensure that the motion itself is supported by evidentiary
materials.” Id. This is particularly so here because Nesbitt is proceeding pro se.
However, that does not mean the Court should ignore undisputed evidence and,
again, the medical records are undisputed in every material way. The SCM defendants’
motion lays out the facts in the records at some length. Doc. 66-1 at 2-6. While this is
helpful, the Court believes a verbatim chronology of the extensive treatment and
observation of Nesbitt is more enlightening, and the Court attaches that chronology as
Exhibit A. In sum, the records demonstrate that beginning at 11:32 a.m. on September
26, 2018, approximately fifteen hours after Nesbitt was booked in the BCDC, SCM staff
conducted a medical examination of Nesbitt and thereafter treated and observed him on
an almost daily basis. Docs. 66-3 at 33-36; 68-3 at 4; 68-4 at 33-36; Ex. A.
SCM defendants’ objection
The Magistrate Judge recommends that the SCM defendants’ motion for
summary judgment be granted with one exception. The Magistrate Judge concluded
that a genuine dispute of material fact existed as to whether Nesbitt received an
adequate supply of catheters and diapers and thus, recommends denial of the SCM
defendants’ motion for summary judgment on Nesbitt’s Fourteenth Amendment
deliberate indifference to serious medical needs claim. Doc. 82 at 9-13. Citing only the
complaint and without identifying any responsible SCM defendant, the
Recommendation states that “[p]laintiff argues that his catheter and diaper supplies are
constantly inadequate.” Id. at 11 (citing Doc. 1 at 8-9). That is contrary to Nesbitt’s
deposition testimony and his medical requests. 2 See generally Docs. 66-7; 87-1. There
is no evidence that catheters and diapers were constantly inadequate, and at no time
prior to January 8, 2019, when Nesbitt filed his complaint, 3 did he complain to SCM staff
about the lack of catheters or diapers or submit medical requests for additional
catheters or diapers. Rather, as Nesbitt testified in his deposition, he complained only
to BCDC staff and almost all his complaints were made immediately following his
booking. Doc. 66-7 at 19:5-12, 38:18-39:6, 62:21-63:17. There is no evidence that any
Nesbitt attached to his objection copies of those medical requests. Doc. 87-1. They are included in the
medical chronology. Ex. A.
Nesbitt’s complaint was docketed on March 4, 2019, but it was dated January 8, 2019. Doc. 1 at 10, 12.
Under the pro se prisoner mailbox rule, a complaint alleging claims under 42 U.S.C. § 1983 is deemed
filed on the date that the prisoner delivers it to prison officials. Garvey v. Vaughn, 993 F.2d 776, 783
(11th Cir. 1993). The Court “assume[s], [a]bsent evidence to the contrary, … that a prisoner delivered a
filing to prison authorities on the date that he signed it.” Daniels v. United States, 809 F.3d 588, 589 (11th
Cir. 2015) (internal quotation marks and citation omitted) (applying the prison mailbox rule to a 28 U.S.C.
§ 2255 motion). Thus, the Court assumes Nesbitt gave his complaint to prison officials for mailing on
January 8, 2019.
SCM employee was aware during the critical period following booking that Nesbitt
claimed he did not have enough catheters or diapers.
Given those undisputed facts, SCM argues that, as a matter of law, no SCM
employee was deliberately indifferent to Nesbitt’s need for additional catheters or
diapers. Doc. 66-1 at 7-11. The Court agrees. It follows that the Recommendation’s
conclusion that the SCM defendants “failure to provide sufficient catheters and diapers
exacerbated [Nesbitt’s] susceptibility” to urinary tract infections is also incorrect. Doc.
82 at 12.
Thus, even assuming BCDC staff failed to provide Nesbitt with additional
catheters and diapers when he requested them, there is no evidence that the SCM
defendants were aware of this problem and thus, there is no evidence that they were
Accordingly, the recommendation that the SCM defendants’ motion for summary
judgment be denied with respect to Nesbitt’s deliberate indifference to his serious
medical needs claims is REJECTED.
Defendants Henderson and Bell’s objection
Defendants Henderson and Bell, aside from their objection to the Report and
Recommendation’s failure to deem their statement of undisputed facts admitted,
complain that the Magistrate Judge did not “distinguish the capacity of the Sheriff’s
Office [d]efendants for which [Nesbitt’s] claims may proceed” and, therefore, apparently
recommended that claims against Henderson and Bell in their official capacities go
forward. Doc. 83 at 10-11. That objection is easily disposed of. BCDC’s attorneys
have apparently forgotten that in their motion to dismiss they successfully argued that
Eleventh Amendment immunity barred Nesbitt’s official capacity claims. See generally
Docs. 35; 55; 61. One victory per issue is all the Court can allow.
Before addressing Henderson and Bell’s remaining objections, it is necessary to
clarify exactly what the Report and Recommendation concluded regarding Henderson
and Bell. First, the Report recommends that Nesbitt’s Fourteenth Amendment
deliberate indifference to serious medical needs claim against Henderson and Bell
proceed to trial. Doc. 82 at 13-14, 16-21. However, it limits the scope of that claim to
events immediately following Nesbitt’s booking into BCDC. Id. This claim, which the
Court will call the booking claim, is based on the same facts as the claim against the
SCM defendants discussed above—the failure to provide catheters and diapers in the
period after Nesbitt’s booking. In addition, Nesbitt alleges he did not have a wheelchair
while in booking and thus could not get to a toilet or shower. But unlike the SCM
defendants, there is evidence that Henderson and Bell were aware of Nesbitt’s plight.
Specifically, Nesbitt claims he complained to Henderson and later to Bell, who replaced
Henderson, that he needed catheters and diapers, or he would soil himself. Id. Further,
Nesbitt obviously needed assistance, or at least a wheelchair, to relieve himself. Id.
Finally, Nesbitt had pre-existing buttocks wounds, which allegedly had closed before his
booking. Id. Notwithstanding Henderson and Bell’s knowledge of Nesbitt’s serious
medical needs, Nesbitt alleges they ignored his pleas and that as a result, he laid in his
filth and either aggravated existing wounds or developed new wounds. Doc. 1 at 6.
The Report recommends that the Court grant summary judgment on Nesbitt’s
other deliberate indifference to serious medical needs claims against the BCDC
defendants. Doc. 82 at 13-14.
That much is straightforward. But the Report’s recommendations regarding
Nesbitt’s conditions of confinement claim against the BCDC defendants requires
clarification. Id. at 16-21. First, the Report recommends that Nesbitt’s conditions of
confinement claim against Henderson and Bell, based upon the events immediately
following his booking, proceed. Id.
Thereafter, the Report addresses Nesbitt’s allegations about events that
occurred after his booking and concludes that issues of fact remain regarding some of
those allegations. Id. at 18-21. Specifically, the Report concludes that issues of fact
remain regarding Nesbitt’s assignment to cells that lack handicap-accessible beds,
toilets, and showers. Id. at 19-20. But, except for his allegations about shower access,
neither the Report nor the record identifies any defendant aware of, involved in, or
responsible for these alleged conditions. “[S]ection 1983 requires proof of an affirmative
causal connection between the actions taken by a particular person under color of state
law and the constitutional deprivation.” LaMarca v. Turner, 995 F.2d 1526, 1538 (11th
Cir. 1993) (internal quotation marks and citations omitted). Without such causal
connection, a claim cannot proceed.
The shower access issue arises from Nesbitt’s allegations that at some
unspecified times, he only had access to showers that had a small lip or wall that
prevented him from wheeling his wheelchair into the shower; the Court will call this the
shower wall claim. Doc. 1 at 7. Nesbitt claims this caused him to repeatedly hurt his
foot as he attempted to shower. Id. Based on a July 23, 2019 grievance in which
Nesbitt stated that he was denied access to “[a] shower in booking by Sgt. Vu shift, Sgt.
Bell shift, and Sgt. Henderson shift,” the Report concludes that Henderson and Bell
“directly refused to assist Plaintiff in his shower access.” Docs. 82 at 20; 87-2 at 1.
In sum, reasonably construed, the Report recommends Nesbitt’s conditions of
confinement claim against Henderson and Bell proceed based on (a) the alleged events
immediately following booking, and (b) the shower wall claim. Again, the Report and
record fail to link any other condition of confinement allegation or claim to Henderson,
Bell, or any defendant.
With those clarifications, the Court addresses Henderson and Bell’s objections to
Henderson and Bell do not dispute that Nesbitt had a serious medical need. Doc
83 at 13. Nor do they challenge the Report’s conclusion that forcing Nesbitt to lay in his
waste overnight was a clear violation of his right to basic sanitation. 4 Doc. 82 at 22-23.
Rather, they argue that there is “no evidence in the record that … Bell was aware of
[Nesbitt’s] alleged condition or that … Henderson intentionally refused [Nesbitt] medical
care.” Doc. 83 at 14 (emphasis added). They further argue that while Nesbitt
complained about the need for catheters, diapers, and a wheelchair, he “could not recall
any of the officers’ names that he complained to.” Id. at 15. However, Henderson
concedes he was the shift sergeant at the time of Nesbitt’s booking. Id. But despite
that concession, Henderson and Bell further support their lack of knowledge argument
by pointing to Nesbitt’s failure to file a grievance concerning Henderson’s alleged
refusal to provide medical assistance. Id. Moreover, the defendants highlight,
On the issue of qualified immunity, Henderson and Bell only challenge the Report’s conclusion that
denying Nesbitt access to a shower was a constitutional violation. Docs. 82 at 20; 83 at 19-21.
plausibly, that the record contradicted Nesbitt’s allegation and he “was not forced to lie
on a cot for seven days but was treated by SCM the day after he arrived to the BCDC
for pre-existing ulcers and sores and was transferred to medical on September 28,
2018.” Id. While Nesbitt seems to have embellished a bit, there is clear evidence that
he was kept in booking for at least fifteen hours without access to basic sanitation
needs. Finally, Bell argues that “there is no evidence in the record that shows that
[Nesbitt] specifically complained to … Bell regarding his alleged injuries or requests for
catheters, diapers, and a wheelchair.” Id. at 16.
Nesbitt’s deposition testimony supports his allegation about complaining to
Henderson about the need for medical attention during his first night in BCDC, which
Henderson allegedly ignored. Doc. 1 at 6. According to Nesbitt, during the period in
question, it was, in fact, Henderson who Nesbitt complained to about the need for
catheters and diapers. Doc. 66-7 at 19:5-20:4, 62:21-63:9. Therefore, the defendants’
argument that Nesbitt “could not specifically name … Bell or Henderson” is incorrect.
Doc. 83 at 16. Nesbitt testified that he complained to Henderson about the need for
medical supplies, and the defendants’ conceded that Bell took over as shift sergeant
after Henderson. Docs. 66-7 at 19:5-20:4, 62:21-63:9; 83 at 15. Therefore, Nesbitt’s
deposition testimony presents a question of fact sufficient to submit to a jury as to
whether Henderson and Bell were deliberately indifferent to Nesbitt’s medical needs.
Henderson and Bell make the same factual arguments in response to Nesbitt’s
conditions of confinement booking claim, and they lack merit for the same reason.
Accordingly, the Court ADOPTS the recommendation that Nesbitt’s booking
claim alleging deliberate indifference to medical needs and unconstitutional conditions
of confinement go forward against Bell and Henderson.
Shower Wall Claim
Nesbitt alleged he was assigned to several dormitories that were not wheelchair
accessible because the shower stalls had “a small wall at the bottom.” Doc. 1 at 7.
Nesbitt never identified who prevented him access to appropriate showers.
Nonetheless, the Recommendation allows Nesbitt’s shower wall claim to proceed
against Henderson and Bell, based on Nesbitt’s July 23, 2019 grievance, which, of
course, was filed long after Nesbitt filed his complaint. Doc. 82 at 19 (citing Docs. 68-3
at 68; 68-4 at 9-10, 18, 50).
In this grievance, Nesbitt states that he has “currently been refused on many
attempts to take a shower in booking by Sgt. Vu shift, Sgt. Bell shift, and Sgt.
Henderson shift.” Doc. 87-2 at 1. Nesbitt requests “access to a reliable shower when
needed by all shifts.” Id. Based on this, the Report found that the record demonstrated
that “Henderson and Bell were aware of [Nesbitt’s] condition, and not only disregarded
it, but directly refused to assist [Nesbitt] in his shower access.” Doc. 82 at 20. That
finding has no support in the record.
Henderson and Bell argue that “[t]here is no evidence in the record that [they]
were aware of any issues regarding [Nesbitt’s] access to a shower” prior to Nesbitt’s
July 23, 2019 grievance. Docs. 68-3 at 56; 82 at 19; 83 at 16-18. Henderson and Bell
further argue that on the day Nesbitt filed his grievance, Nesbitt was moved to J block
and given a “handicap accessible room …”. 5 Docs. 66-7 at 24:6-27:6; 68-3 at 56; 83 at
In his objection, Nesbitt acknowledges states that prompt response to his grievance, but claims he still
was unable to shower after the move to J-Block on July 23, 2019. Doc. 87 at 2-4. The point, however, is
18. In his deposition, Nesbitt could not identify anyone, much less Henderson and Bell,
to whom he complained about access to a more accommodating shower Doc. 66-7 at
26:20-24. The July 23, 2019 grievance is the only evidence suggesting Henderson and
Bell knew anything about Nesbitt’s complaints regarding shower access. It is
questionable whether this grievance shows Henderson and Bell, as opposed to officers
who worked on these sergeants’ “shifts,” had actual knowledge of Nesbitt’s shower
complaints. Doc. 87-2 at 1. Nesbitt does not state he complained to Henderson and
Bell. Instead, he states that he was refused access to an accommodating shower
during Vu’s, Henderson’s, and Bell’s “shifts.” 6 Doc. 87-2 at 1. More importantly, there is
no evidence that Henderson or Bell knew of these requests prior to July 23, 2019.
Without that knowledge and because Nesbitt was moved immediately after he filed his
greivance, no reasonable jury could find that Henderson and Bell were deliberately
indifferent to Nesbitt’s condition of confinement regarding access to a wheelchairaccessible shower.
Nominal and punitive damages
The Report and Recommendation, in its conclusion, states that Nesbitt can
recover only nominal damages. Doc. 82 at 29. That was a mistake; no defendant
moved for summary judgment on the grounds that Nesbitt’s recovery should be limited
to nominal damages. See generally Docs. 66-1; 68-1. To the extent that is a
recommendation, it is REJECTED.
the he was moved from Henderson’s and Bell’s shifts and there is no evidence that they know of any
shower problems after that immediate response to the grievance.
6 In his objection, Nesbitt states that he asked unnamed officers for showers and was “refused by the
sergeant on shift.” Doc. 87 at 4. Nesbitt includes a grievance that shows Sgt. Nunn refused to let him
have a shower on July 16, 2020, over a year after his complaint was filed. Doc. 87-2 at 2. This grievance
in no way links Henderson and Bell to the denial of Nesbitt’s requests for showers.
Notwithstanding the Report’s conclusion that Nesbitt could only recover nominal
damages, it finds that Nesbitt’s “claim for punitive damages may proceed.”7 Bell and
Henderson object. Doc. 83 at 21. That objection is without merit. If Nesbitt is to be
believed, he laid in his filth for some period of time while Henderson and Bell rejected
his pleas. As a result, his wounds, which he says had closed, reopened. Those
allegations are sufficient to create an issue of fact as to whether Nesbitt can recover
Nesbitt makes numerous objections. Most of his objections do not address the
Report’s findings but are simply allegations regarding incidents that occurred after he
filed his complaint and are, therefore, not included in the complaint. Doc. 87. For
example, Nesbitt complains that his wheelchair is “broken,” and in September 2020 Lee
refused to have it repaired. Id. at 4-5. He states that an unnamed business gave him a
new wheelchair, but in December 2020, unnamed defendants broke that wheelchair
when they used it to transport other prisoners. Id. at 5. He alleges that he complained
to Weaver and Lee on May 31, 2020 that the four-block “wall phone and kiosk” are not
wheelchair accessible. Id. He states that despite their assurances that the kiosk would
be adjusted, he is still unable to access the phones. Id. at 5-6. Nesbitt complains that
unspecified SCM defendants would not allow him to return to Georgia Urology but made
him see a different urologist on February 27, 2020. Id. at 8. Similarly, he states that
unspecified SCM defendants caused him to miss two visits to a gastroenterologist in
March and June 2020, and Nurse Joy (who is not a defendant in this action) failed to
If an incarcerated plaintiff is limited to nominal damages due to lack of a physical injury, he cannot
recover, in this Circuit, punitive damages. Brooks v. Warden, 800 F.3d 1295, 1307-09 (11th Cir. 2015).
give him medication on March 4, 2020. Docs. 87 at 8-9; 87-2 at 22. All of these events
occurred long after Nesbitt filed his complaint and are, therefore, not included in the
complaint, not addressed in the Report, and have absolutely no bearing on the Report.
Nesbitt objects to the Report’s finding that his general allegations of mold and
mildew and freezing temperatures fail to state a claim. Doc. 87 at 7. Plaintiff links no
named defendant to this claim, and his objections are no more specific than his original
Nesbitt objects to the Report’s finding that his transportation in a nonhandicapped vehicle fails to state a claim. Id. at 6-7. Again, plaintiff links no named
defendant to his allegations and has not alleged more than minor injuries from being
transported in a bus and patrol car, which occurred in July and September 2020, long
after the complaint was filed. Doc. 87-2 at 11-13.
Apparently objecting to the Report’s finding that SCM staff provided adequate
daily wound care for his foot, Nesbitt alleges that SCM nurses “discriminated” against
him by refusing would care on “several occasion[s].” Docs. 87 at 8-10; 87-2 at 20. It
appears these alleged events occurred in March and June 2020 and involved Nurse
Martinez and Nurse Joy, neither of whom is a defendant in this action. Doc. 87-2 at 2021. This objection, therefore, has no impact on the Report’s findings that “[Nesbitt’s]
right foot wounds were cleaned and dressed continuously through January 19, 2019.”
Doc. 82 at 10.
Accordingly, after careful consideration of Nesbitt’s objections and a de novo
review of the Report and Recommendation, the Court determines that the objections
provide no basis for rejecting the findings of the Report and Recommendation.
For the reasons discussed above, the recommendation that the SCM defendants’
motion for summary judgment be denied with respect to Nesbitt’s deliberate indifference
to his serious medical needs claim is REJECTED. Doc. 82 at 13. The recommendation
that the SCM defendants’ motion for summary judgment be granted with respect to
Nesbitt’s conditions of confinement claim, and his ADA and RA claims is ADOPTED.
Id. at 16, 24. Accordingly, the SCM defendants’ motion for summary judgment (Doc.
66) is GRANTED.
The recommendation that Henderson and Bell’s motion for summary judgment
regarding Nesbitt’s deliberate indifference to his medical needs and unconstitutional
conditions of confinement claims be denied is ADOPTED but limited to the booking
claim alone. Doc. 82 at 14, 20-21. The recommendation that Nesbitt’s shower wall
claim, and any additional conditions of confinement claims against Henderson and Bell
proceed is REJECTED. Id. at 20-21. The recommendation to reject Henderson and
Bell’s motion for summary judgement on their qualified immunity defense is
ADOPTED. 8 Id. at 21-23. The recommendation that Defendants’ Weaver, Lee, and
Hobby’s motion for summary judgment be granted at to Nesbitt’s deliberate indifference
to serious medical needs and unconstitutional conditions of confinement claims is
ADOPTED. Doc. 82 at 14, 20-21. The recommendation that summary judgment be
granted with respect to Nesbitt’s ADA and RA claims against Long, Bell, Henderson,
Hobby, Lee, and Weaver is ADOPTED. Doc. 82 at 27. Accordingly, Long, Bell,
The Report found that “Henderson and Bell are not entitled to qualified immunity” as opposed to
recommending that the Court deny their motion for summary judgment. Doc. 82 at 23. The Court treats
the finding as a recommendation.
Henderson, Hobby, Lee, and Weaver’s motion for summary judgment (Doc. 68) is
GRANTED in part and DENIED in part.
The Report addresses injunctive relief and, instead of making a recommendation,
finds Nesbitt “is not entitled to injunctive relief.” Doc. 82 at 29. Given the Court’s
findings, it is unlikely whether Nesbitt is entitled to injunctive relief. The Court, however,
DENIES without prejudice Bell and Henderson’s motion for summary judgment
regarding injunctive relief. Doc. 68-1 at 19. If necessary, the issue of injunctive relief
will be addressed in the pretrial conference.
Accordingly, the Recommendation (Doc. 82) is ADOPTED in part and
REJECTED in part.
SO ORDERED, this 31st day of March, 2021.
S/ Marc T. Treadwell
MARC T. TREADWELL, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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