BALLARD v. MORALES et al
REPORT AND RECOMMENDATION as to 55 MOTION for Summary Judgment filed by JOSE MORALES, 57 and ORDER denying 57 Motion to Produce. Ordered by US MAGISTRATE JUDGE CHARLES H. WEIGLE on 1/18/2023 (tlf).
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
RICO LAMAR BALLARD,
Warden JOSE MORALES,
Case No. 5:21-cv-00142-MTT-CHW
REPORT AND RECOMMENDATION
Before the Court is a motion for summary judgment filed by Defendant Morales. (Doc. 55).
For the reasons explained below, it is RECOMMENDED that Defendant Morales’s motion be
GRANTED in part and DENIED in part such that this matter proceed to trial. It is further
ORDERED that Plaintiff’s pending motion to produce documents (Doc. 57) is DENIED.
This Section 1983 action concerns a threated use-of-force incident that occurred on March
23, 2020. Although the Defendant disputes much of Plaintiff’s testimony, Plaintiff’s version of the
facts is accepted as true for purposes of this motion. According to Plaintiff’s allegations, which
correspond to Plaintiff’s now–available deposition testimony, Plaintiff asked to speak with
Defendant Morales, the Warden of the Georgia Diagnostic and Classification Prison, regarding
Plaintiff’s contention that he had completed his term of incarceration. 1 Plaintiff was then extracted
from his cell by members of the CERT team 2 and taken to the office of the Officer in Charge (OIC)
Plaintiff contends that he has “maxed out” his sentence for a Fulton County murder conviction. See (Pl.’s
Dep., Doc. 55-3, pp. 35, 49–50).
Correctional Emergency Response Team. See https://gdc.ga.gov/Divisions/ExecutiveOperations/OPS
/SpecialOps (last visited Dec. 8, 2022).
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to meet with Defendant Morales. Defendant Morales did not agree with Plaintiff’s contention, and
according to Plaintiff’s version of the story, the conversation over Plaintiff’s continued
imprisonment quickly devolved into an argument. While Plaintiff was seated so that he could
access his legal papers, Plaintiff testifies that “the entire CERT team surrounded me to the point I
couldn’t see in between their bodies.” (Compl., Doc. 1, p. 7) (Pl.’s Dep., Doc. 55-3, p. 40). After
the CERT officers surrounded Plaintiff, Defendant Morales circled around Plaintiff, “began talking
trash cursing me out,” and then spit on Plaintiff’s back. (Compl., Doc. 1, p. 7) (Pl.’s Dep., Doc.
55-3, pp. 40–41). As the CERT officers later escorted Plaintiff back to his cell, Defendant Morales
threatened to kill Plaintiff. (Compl., Doc. 1, pp. 7–8) (Pl.’s Dep., Doc. 55-3, pp. 39, 42).
The Court determined on screening under 28 U.S.C. § 1915A that this combination of facts
was sufficient to warrant further factual development of Plaintiff’s Eighth Amendment claim of
excessive force against Defendant Morales. (Doc. 17). Citing a case from the D.C. Circuit,
Chandler v. Dist. of Columbia Dep’t of Corrs., 145 F.3d 1355 (D.C. Cir. 1998), the Court
explained that verbal threats generally do not rise to the level of a constitutional harm, but the
Court also observed that “a threat accompanied by conduct supporting the credibility of the threat”
may violate the Eighth Amendment. Id. at 1361.
PLAINTIFF’S MOTION TO PRODUCE
In a pending motion (Doc. 57), Plaintiff asks for the production of a wide variety of
evidence under Rule 34 of the Federal Rules of Civil Procedure. Plaintiff’s requests pertain to four
different civil actions that he has commenced in this Court. None of Plaintiff’s requests directly
relates to his Eighth Amendment claim in this action.
One of Plaintiff’s requests, his request for “the original version of every sentence
computation report stored within the Georgia Department of Correction[s’] computer system
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‘SCRIBE’ from May 2012 through March 2022” (Doc. 57, pp. 1–2), is perhaps relevant to
Plaintiff’s contention that he has completed his imposed term of incarceration, and hence should
be release. As previously explained, though, Plaintiff may not challenge the propriety of his
continued incarceration in this Section 1983 action, as opposed to an action filed pursuant to
28 U.S.C. § 2241. Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir. 2006) (observing that habeas
and Section 1983 are “mutually exclusive” avenues for relief). Accordingly, because the
documents that Plaintiff requests are irrelevant or relate to an impermissible theory of recovery,
Plaintiff’s motion for production is denied.
STANDARD FOR SUMMARY JUDGMENT
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper
“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). The party moving for summary
judgment bears the burden of informing the Court of the basis for its motion, and of citing “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any,” that support summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322–
24 (1986). In resolving motions for summary judgment, the Court must view the evidence in the
light most favorable to the non-moving party. Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014).
The Defendant raises five arguments in favor of summary judgment. Two of those
arguments relate to procedural defenses: (1) that Plaintiff may not recover official capacity
damages under Section 1983, Will v. Michigan Dep’t of State Pol., 491 U.S. 58, 71 (1989), and
(2) that the PLRA bars Plaintiff’s recovery of compensatory damages because Plaintiff alleges no
physical injury, since his Eighth Amendment excessive force claim is based only upon a credible
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threat of violence. See Brooks v. Warden, 800 F.3d 1295, 1308 (11th Cir. 2015) (citing 42 U.S.C.
§ 1997e(e)). Regarding these two procedural defenses, it is recommended that the Defendant’s
motion for summary judgment be granted in part.
In all other respects, however, it is recommended that the Defendant’s summary judgment
motion be denied. Specifically, because (A) the record does not support Defendant’s two
arguments on the merits, and because (B) the Defendant is not entitled to qualified immunity, this
action should be resolved at trial.
Arguments on the Merits
To make out on an Eighth Amendment claim of excessive force, a prisoner must satisfy
both an objective and a subjective showing. That is, the prisoner must show both that “the alleged
wrongdoing was objectively ‘harmful enough’ to establish a constitutional violation,” and that the
alleged wrongdoer “acted with a sufficiently culpable state of mind.” Hudson v. McMillian, 503
U.S. 1, 8 (1992) (internal punctuation omitted). The Defendant challenges Plaintiff’s ability to
satisfy both components of the excessive force inquiry, but the Defendant’s arguments do not
provide grounds for summary judgment.
Regarding the Eighth Amendment’s objective component, the Defendant’s arguments
amount to little more than a request for the Court to reconsider its screening determination. The
Defendant argues that the facts which Plaintiff alleged, and now has testified to in a deposition,
show only a “minimal or non-existent extent of injury.” (Doc. 55-8, p. 8). Longstanding Supreme
Court precedent, though, holds that a prisoner need not suffer a serious physical injury to state an
Eighth Amendment claim. Hudson v. McMillian, 503 U.S. 1, 4 (1992). Accord Bowden v. Stokely,
576 F. App’x 951, 953 (11th Cir. 2014) (“In Eight Amendment excessive force cases, the core
judicial inquiry is not whether a certain quantum of injury was sustained, but rather whether force
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was applied in good faith) (internal quotations omitted). Additionally, this Court necessarily
rejected any physical injury requirement by allowing Plaintiff to proceed in this action based only
on allegations of unmaterialized threats.
Defendant further argues that his alleged spitting and threats to kill Plaintiff did not
constitute a use of force and were not otherwise “repugnant to the conscience of mankind”
(Doc. 55-8, pp. 7–8). As noted in the screening order, however, federal caselaw indicates that
credible threats to harm are actionable under the Eighth Amendment. In the screening order, the
Court cited Chandler v. Dist. of Columbia Dep’t of Corrs., 145 F.3d 1355 (D.C. Cir. 1998), in
which the D.C. Circuit Court of Appeals reversed a district court’s order dismissing the case for
failure to state a claim and held that the plaintiff’s allegation of a single verbal threat by an officer
was sufficient to state a a claim under the Eighth Amendment:
Unlike the district court, we are not persuaded that the injuries described in
Chandler's complaint were necessarily insufficient to state a claim under the Eighth
Amendment. If we credit his allegations, Corporal Brooks's threat put Chandler in
imminent fear of his life because she was in a position to carry it out. Depending
on the gravity of the fear, the credibility of the threat, and on Chandler's
psychological condition, the threat itself could have caused more than de minimis
harm and therefore could have been sufficient to state a claim of excessive use of
Id. at 1361.
The court found that “the facts underlying Chandler's complaint are similar to those that confronted
the Fourth Circuit in Hudspeth v. Figgins, 584 F.2d 1345 (4th Cir.1978).” As the Chandler court
In that case, the court reversed the district court's dismissal of a prisoner's section
1983 suit alleging that a guard had threatened to have him killed because he had a
suit pending against the prison. The Fourth Circuit held that the combination of the
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guard's threat and the prisoner's subsequent transfer from unsupervised work to a
work detail supervised by armed guards sufficed to state a cause of action under
section 1983. See [Hudspeth, 584 F.2d] at 1348. In dicta, the court noted that if the
guards “intentionally plac[ed] Hudspeth in fear for his life if he pressed his court
actions[,] that would inflict such suffering as to amount to unconstitutional
Chandler, 145 F.3d at 1361.
This case is comparable to Chandler and Hudspeth, in that a reasonable finder of fact, if it accepted
Plaintff’s testimony as true and drew inferences in his favor, could find that Defendant’s threat
placed Plaintiff in imminent fear of his life because Defendant was in a position to carry it out. As
in those cases, it would be for the finder of fact to evaluate the gravity of Plaintiff’s fear, the
credibility of the threat, and Plaintiff’s psychological condition in response to the threat.
Regarding the Eighth Amendment’s subjective component, the Defendant argues that the
factors articulated by the Supreme Court in Whitley v. Albers weigh in favor of a finding that
Morales’s conduct was “undertaken to resolve a disturbance,” rather than to “inflict unnecessary
and wanton pain and suffering.” 475 U.S. 312, 321 (1986). The Whitley factors are:
(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.
Campbell v. Sikes, 169 F.3d 1353, 1375 (11th Cir. 1999)
The Defendant’s Whitley argument is grounded in a failure to follow the summary
judgment standard. The thrust of Morales’s argument is that he “did not threaten Plaintiff”
(Doc. 55-8, p. 9), but Plaintiff has given sworn deposition testimony indicating that Morales “told
me he’d kill me.” (Pl.’s Dep., Doc. 55-3, p. 39). This testimony creates a genuine dispute of
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material fact, and for summary judgment purposes, the Court must resolve that dispute in
On Plaintiff’s facts, there was no justification for Defendant Morales to employ or threaten
to employ any degree of force, let alone lethal force. There is no indication that Plaintiff posed an
immediate threat to the safety of Defendant Morales, the CERT officers, or any other prison staff
during the March 23, 2020 meeting, which concerned Plaintiff’s term of incarceration. Nor is there
any indication that Defendant Morales took steps to temper his threats by, for example, retracting
those threats. Finally, although the record indicates that Defendant Morales’s threats were not
carried out, and thus that Plaintiff did not sustain a physical injury, that factor is not dispositive for
reasons discussed above. See Hudson, 503 U.S. at 4.
In summary, pursuant to the holding in Chandler, a finder of fact could determine that
Defendant Morales’s alleged conduct was sufficiently serious to offend the Eighth Amendment
and that the Whitley factors support a finding that Defendant Morales was subjectively motivated
by an intent to inflict unnecessary suffering, rather than by any good faith desire to restore order.
Accordingly, Defendant Morales is not entitled to summary judgment on the merits.
Finally, Defendant Morales has invoked the defense of qualified immunity, but Eleventh
Circuit precedent holds that the “defense of qualified immunity is not available in cases alleging
excessive force in violation of the Eighth Amendment.” Skrtich v. Thornton, 280 F.3d 1295, 1301
(11th Cir. 2002). Accord Bowden v. Stokely, 576 F. App’x 951, 955 (11th Cir. 2014). Based on
this precedent, Defendant Morales also is not entitled to summary judgment on grounds of
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For the reasons discussed herein, it is RECOMMENDED that the Defendant’s motion for
summary judgment (Doc. 55) be GRANTED in part and DENIED in part. It is further
ORDERED that Plaintiff’s motion to produce documents (Doc. 57) is DENIED. 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 thereof. Objections are limited to twenty pages in length. Local Rule 7.4
The District Judge will 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
The parties are further 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 18th day of January, 2023.
s/ Charles H. Weigle
Charles H. Weigle
United States Magistrate Judge
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