Johnson v. Conway et al
Filing
101
ORDER denying Defendants Corizon Health, Inc. and Susan Fajardo, LPN's 79 Motion for Summary Judgment. The Court GRANTS Motion for Summary Judgment 83 on Behalf of Defendants Sheriff R.L. Conway and Deputies Christopher Revels, Robert Bailey, and Tochi Davis. The remaining parties shall submit a proposed consolidated pretrial order within 30 days of the entry of this Order. Signed by Judge Richard W. Story on 7/6/2015. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
VANCE R. JOHNSON,
Plaintiff,
v.
SHERIFF R.L. “BUTCH”
CONWAY, et al.,
Defendants.
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CIVIL ACTION NO.
1:13-CV-0524-RWS
ORDER
This case comes before the Court on Defendants Corizon Health, Inc.
and Susan Fajardo, LPN’s Motion for Summary Judgment (“Medical
Defendants’ MSJ”) [79] and Motion for Summary Judgment on Behalf of
Defendants Sheriff R.L. Conway and Deputies Christopher Revels, Robert
Bailey and Tochi Davis (“County Defendants’ MSJ”) [83]. After a review of
the record, the Court enters the following Order.
Background1
1
Unless otherwise indicated, the Court relies on the statements of facts
submitted by Defendants. If, however, a fact is disputed, the Court views all evidence
and factual inferences in the light most favorable to Plaintiff as the non-moving party,
as the Court must on a motion for summary judgment. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
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This case arises out of Plaintiff Vance R. Johnson’s arrest by the
Gwinnett County Police Department and his subsequent detention. On
February 18, 2011, Plaintiff was arrested and taken to Gwinnett County
Detention Center (“GCDC”). (Statement of Undisputed Facts in Support of
Defs.’ Mot. for Summ. J. (“County Defs.’ SOMF”), Dkt. [83-1] ¶ 1.)
A.
Plaintiff’s Medical Screening
When he arrived at GCDC, Plaintiff was sent to the intake medical unit
operated by Corizon and its employees. Defendant Mavis Campbell2 (“Nurse
Campbell”) initially attended to Plaintiff’s medical intake receiving and
screening. (Defs. Corizon Health, Inc. & Susan Fajardo, LPN’s Statement of
Material Facts as to Which There is No Genuine Issue to be Tried (“Medical
Defs.’ SOMF”), Dkt. [79-1] ¶ 6.)
During the screening process, Plaintiff was asked if he had any medical
problems or required any medical treatment. Plaintiff signed the intake
receiving and screening form, which noted a pre-existing foot injury and stated
that Plaintiff’s vital signs had been taken. (2d Am. Compl., Dkt. [40] ¶ 7.)
2
The Court dismissed the First Amendment retaliation claim against
Defendant Campbell in its Order dated September 30, 2013. (Dkt. [39].)
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While Plaintiff signed the intake form and a Refusal of Clinical Services Form,
he refused to sign any other forms put in front of him by Nurse Campbell. (Id.
¶ 24.)
After Plaintiff signed the refusal form, detention officers and nurses
made multiple attempts to give Plaintiff a pure protein derivative test (“PPD
test”) to test for the presence of tuberculosis. In a PPD test, a small needle is
inserted just under the skin. (County Defs.’ SOMF, Dkt. [83-1] ¶ 3.) The PPD
test is part of the admission process for the Gwinnett County Jail, in order to
control the spread of tuberculosis, which is highly contagious and may be
deadly. (Id. ¶ 4.)
Plaintiff refused the PPD test three times. (Medical Defs.’ SOMF, Dkt.
[79-1] ¶ 7.) Defendant Susan Fajardo (“Nurse Fajardo”) made the fourth
attempt to administer the PPD test to Plaintiff. (Id. ¶ 8.) Plaintiff sat in Nurse
Fajardo’s chair, placed his arm down, and allowed Nurse Fajardo to wipe his
arm and administer the PPD test. (Id. ¶ 9.) The Medical Defendants claim that
Plaintiff did not verbally inform Nurse Fajardo at the time she administered the
test that he intended to refuse the test. (Id. ¶ 10.) Accordingly, Nurse Fajardo
interpreted Plaintiff’s actions as consent to the test. Plaintiff, however, testifies
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that he told Nurse Fajardo that he “already had signed the refusal of medical
treatment.” (Johnson Depo., Dkt. [84-1] at 122.)
After administering the PPD test to Plaintiff, Nurse Fajardo noticed that
Plaintiff had previously signed a “Refusal of Clinical Services” form. (County
Defs.’ SOMF, Dkt. [83-1] ¶ 7.) Because Nurse Fajardo interpreted Plaintiff’s
behavior in her chair as consent to the PPD test, she asked Plaintiff to sign a
“general consent to treatment” form once more, in case “he had changed his
mind” about consenting to medical treatment. (Id.) Plaintiff refused again.
(Id.) Plaintiff further refused to sign a document stating he had consented to
the PPD test only. (Id.)
B.
Plaintiff’s Transit to the Disciplinary Unit
Defendant Christopher Revels (“Deputy Revels”) was also present when
Plaintiff refused Nurse Fajardo’s request to sign the document acknowledging
that he had consented to the PPD test. (Id. ¶ 10.) Deputy Revels informed
Plaintiff that if he did not sign the acknowledgment, he would receive a “failure
to comply” disciplinary report. (Id.) Plaintiff continued to refuse to sign the
document and Deputy Revels called his supervisor, Sergeant Lucas, who
advised that Plaintiff would have to receive a failure to comply disciplinary
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report if he did not sign. (Id. ¶ 12.)
Sergeant Lucas instructed Deputy Revels to contact the internal security
unit responsible for inmate movements within the GCDC for assistance in
moving Plaintiff to the disciplinary unit. (Id. ¶ 15.) Deputy Defendant Robert
Bailey (“Deputy Bailey”) and Defendant Tochi Davis (“Deputy Davis”)
responded to Deputy Revels’ radio call. (Id.) Deputy Revels informed
Deputies Bailey and Davis that Plaintiff refused to sign some medical
paperwork and was thus “being charged with a failure to comply infraction.”
(Id.) Deputy Revels did not consider Plaintiff to be resistant or a threat and
told Deputies Bailey and Davis that Plaintiff was compliant and not resistant.
(Id.)
At the GCDC, standard practice for moving an inmate to the disciplinary
unit for failure to comply with an officer’s instructions involves instructions to
the inmate from the escorting officers to “get down on the floor and put his
hands behind his back so that he can be handcuffed.” (Id. ¶ 16.) The escorting
officers then “assist the inmate to his feet and escort him to the assigned
destination” at the inmate’s pace. (Id.) Deputies Bailey and Davis escorted
Plaintiff to the disciplinary unit using this protocol, which is designed as a
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security measure to control for the unknown mindset and potential for violence
of an inmate. (Id.)
The County Defendants report that Plaintiff’s movement from GCDC’s
admissions area to the disciplinary area was “completely uneventful.” (Id.
¶ 17.) The GCDC officers did not direct a use of force towards Plaintiff.
Plaintiff complied with the instructions to lie down on the floor without
resistance. Nor did he resist when the officers placed him in handcuffs.
Plaintiff’s hands were secured behind his back in a manner that was not
“rough[], violent[], or aggressive[].” (Id.) The escorting officers “used only as
much effort as was necessary” to assist Plaintiff to standing. (Id.) The
escorting officers accompanied Plaintiff, walking backwards and supported by
the officers’ arms through his, into the elevator and up two floors to the
disciplinary unit. (Id.) En route to the disciplinary unit, Plaintiff “did not
complain that the handcuffs were too tight” or “that he had injured his
shoulder.” (Id.) No use of force incident report was prepared following this
transit. (Id. ¶ 18.)
C.
Policy-making at the GCDC
Defendant R.L. “Butch” Conway (“Sheriff Conway”) has held the
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elected position of Sheriff of Gwinnett County since 1997. (County Defs.’
SOMF, Dkt. [83-1] ¶ 23.) In this position, Sheriff Conway “is responsible for
the overall administration of the several divisions of the Sheriff’s Office,”
including the GCDC. (Id. ¶ 24.) Colonel Don Pinkard, who is the Jail
Administrator and is not named in this action, is “primarily responsible for the
day-to-day operations of the [GCDC] and seeing to it that all [GCDC] policies
are followed.” (Id. ¶ 26.)
Policy 8M governs use of force and restraints in the GCDC (the “Use of
Force Policy”). (Id. ¶ 27.) The Use of Force Policy provides:
It will be the policy of the Gwinnett County Detention Center to use only
that force which is necessary in order to maintain the security and safety
of all persons, staff, and inmates within the Detention Center.... Any staff
member who encounters an uncooperative inmate who refuses to enter
their cell, refuses to be searched, refuses to leave their cell, will follow
the specific Use of Force Guidelines as currently approved by the
agency.... Staff members are expected to utilize proxemics and verbal
skills to the fullest extent possible in any confrontation with inmates. It
is the policy of this agency to avoid the necessity of resorting to physical
confrontations to resolve conflicts with inmates.
(Id.; Ex. D to County Defs.’ SOMF, Dkt. [83-3] at 12-14.)
The Use of Force Policy authorizes detention officers to use “certain
levels of force” to ensure that inmates comply with “lawful orders or
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directions.” (County Defs.’ SOMF, Dkt. [83-1] ¶ 29.) For example, when
escorting an inmate within the GCDC, detention officers may handcuff inmates
and take them by the wrist or arm. (Id.) Defendants acknowledge that a
detention officer would violate the Use of Force policy if he were to “use force
to make an inmate sign a document he had a right to refuse to sign.” (Id. ¶ 28.)
The Gwinnett County Sheriff’s Office contracts with medical providers,
including Corizon Health, to provide medical care to the GCDC’s inmates and
to document that care. (Id. ¶ 30.) The County Defendants state that “Sheriff
Conway is not responsible for establishing policies regarding the actual
provision of medical care or for providing direct supervision to the medical
staff.” (Id.)
At the time of the incident that forms the basis of this case, the GCDC
operated under Policy 20.A, issued by the Gwinnett County Jail Commander
under authority delegated from the Sheriff. (Id. ¶ 31, Ex. E to County Defs.’
SOMF, Dkt. [83-3] at 15.) Colonel Donald Pinkard is the Jail Administrator
for the GCDC, and is “responsible for insuring that the Sheriff’s policies
regarding jail operations are carried out.” (County Defs.’ SOMF, Dkt. [83-1]
¶ 35.)
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With regards to informed consent to medical treatment, Policy 20.A
provides in part: “Community standards of informed consent will be observed
in inmate care. Health care will be rendered against an inmate’s will only in
accordance with legal statute and requirements.” (County Defs.’ SOMF, Dkt.
[83-1] ¶ 31; Ex. E to County Defs.’ SOMF, Dkt. [83-3] at 21.)
The County Defendants state that “Sheriff Conway was not involved
with the incident complained of, and given the number of inmates processed
through the [GCDC], there was no reason that he would have been informed of
the Plaintiff’s allegations contemporaneously with the alleged incident.”
(County Defs.’ SOMF, Dkt. [83-1] ¶ 32.) The GCDC processes approximately
35,000 detainees each year. (Id. ¶ 25.)
The Medical Defendants and the County Defendants now move for
summary judgment. The Court first lays out the relevant legal standard before
considering each motion, in turn.
I.
Legal Standard – Summary Judgment
Federal Rule of Civil Procedure 56 requires that summary judgment be
granted “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.” “The moving
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party bears ‘the initial responsibility of informing the . . . court of the basis for
its motion, and identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits,
if any, which it believes demonstrate the absence of a genuine issue of material
fact.’” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir.
2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Where the
moving party makes such a showing, the burden shifts to the non-movant, who
must go beyond the pleadings and present affirmative evidence to show that a
genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 257 (1986).
The applicable substantive law identifies which facts are material. Id. at
248. A fact is not material if a dispute over that fact will not affect the outcome
of the suit under the governing law. Id. An issue is genuine when the evidence
is such that a reasonable jury could return a verdict for the non-moving party.
Id. at 249-50.
Finally, in resolving a motion for summary judgment, the court must
view all evidence and draw all reasonable inferences in the light most favorable
to the non-moving party. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296
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(11th Cir. 2002). But, the court is bound only to draw those inferences that are
reasonable. “Where the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party, there is no genuine issue for trial.”
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
“If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 477 U.S. at 249-50 (internal citations
omitted); see also Matsushita, 475 U.S. at 586 (once the moving party has met
its burden under Rule 56(a), the nonmoving party “must do more than simply
show there is some metaphysical doubt as to the material facts”).
II.
Medical Defendants’ Motion for Summary Judgment [79]
In the Court’s Order dated September 30, 2013, the Court dismissed a
number of Plaintiff’s claims against the Medical Defendants. (Order, Dkt. [39]
at 21.) The claims that remain against Defendant Susan Fajardo are (1) First
Amendment retaliation claim under 42 U.S.C. § 1983 (Count I of the Second
Amended Complaint, Dkt. [40]), (2) state-law battery claim (Count IV), and (3)
negligence claim (Count V) insofar as those claims are based on the
administration of the PPD test. The respondeat superior claim (Count VI)
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against Corizon remains, contingent on the state-law tort claims against Nurse
Fajardo.
In their Motion for Summary Judgment, the Medical Defendants argue
that they are entitled to judgment on Plaintiff’s remaining claims because
Plaintiff manifested his consent to the administration of the PPD test, and
because Plaintiff’s claims were brought outside the statute of limitations and do
not relate back to the original Complaint. The Court considers each substantive
claim against the Medical Defendants before turning to the statute of
limitations argument.
A.
First Amendment Retaliation Claim (Count I)
Plaintiff contends that Nurse Fajardo forcibly administered the PPD test
in retaliation for him exercising his First Amendment right to refuse medical
treatment. Defendants move for summary judgment on this claim, arguing that
(1) Plaintiff manifested his consent to the PPD test through his conduct towards
Nurse Fajardo; (2) administration of a PPD test would not deter a person of
ordinary fitness from exercising First Amendment rights; and (3)
administration of the PPD test was not motivated by a desire to punish Plaintiff
for exercising his First Amendment rights.
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As the Court noted in its September 30, 2013 Order, the primary issue in
this case is whether the test was given against Plaintiff’s will in retaliation for
Plaintiff refusing medical treatment. The First Amendment forbids prison
officials from retaliating against prisoners for exercising the right to free
speech. Farrow v. West, 320 F.3d 1235, 1248 (11th Cir. 2003). To succeed on
a First Amendment retaliation claim, a plaintiff must establish that: (1) he
engaged in constitutionally protected speech; (2) he suffered retaliatory
conduct that would deter a person of ordinary firmness from engaging in
protected speech; and (3) there is a causal connection between the protected
speech and alleged retaliation; i.e., retaliatory intent. Smith v. Mosley, 532
F.3d 1270, 1276 (11th Cir. 2008).
Defendants first argue that they are entitled to summary judgment
because Plaintiff did not engage in constitutionally protected speech in refusing
Nurse Fajardo’s administration of the PPD test because Plaintiff in fact
consented to administration of the test. The undisputed evidence shows that
Plaintiff sat down in Nurse Fajardo’s chair and put his arm down, and that
Nurse Fajardo wiped Plaintiff’s arm with alcohol and injected Plaintiff with a
small needle. The parties dispute, however, whether Nurse Fajardo knew of
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Plaintiff’s earlier verbal and written refusals of treatment. The parties further
dispute whether Plaintiff manifested his consent at the time Nurse Fajardo
administered the PPD test. The Court must construe the facts in favor of
Plaintiff as the non-moving party. And Plaintiff testified that he verbally
informed Nurse Fajardo of his refusal of medical treatment. (Johnson Depo.,
Dkt. [84-1] at 122.) Defendant, therefore, is not entitled to judgment on the
first element of retaliation–the Court cannot find on this record that Plaintiff
manifested his consent to the PPD test such that a reasonable jury could not
conclude that Plaintiff did not engage in protected speech.
Defendants next contend that summary judgment is proper because
Plaintiff did not suffer retaliatory conduct that would deter a person of ordinary
firmness from engaging in protected speech. Whether the alleged retaliatory
conduct “ ‘would likely deter’ presents an objective standard and a factual
inquiry.” Smith v. Mosley, 532 F.3d at 1277. The “retaliatory conduct”
alleged here is the administration of the PPD test–which is to say, the insertion
of a small needle into Plaintiff’s arm. The record provides insufficient
evidence for the Court to conclude whether this conduct meets the objective
standard of “would likely deter” protected speech. Defendants offer that
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Plaintiff continued to refuse treatment and, so they argue, Plaintiff’s speech
was therefore not deterred by Nurse Fajardo’s administration of the PPD test.
(Medical Defs.’ MSJ Br., Dkt. [79-2] at 14.) Defendants further argue that
“Plaintiff did not suffer any pain from the shot” (id. at 13), while Plaintiff
offers that he “can’t stand needles.” (Johnson Dep., Dkt. [84-1] at 121-23.)
But the evidence offered here focuses on Plaintiff’s reaction, and Smith
demands that whether the conduct would likely deter speech be evaluated
under an objective standard. That question is properly left to the jury.
Defendants next move for summary judgment based on the third element
under Smith: the retaliator’s subjective intent. In the Eleventh Circuit, the
subjective motivation issue is evaluated under a burden-shifting formula.
Smith, 532 F.3d at 1278 (citing Thaddeus-X v. Blatter, 175 F.3d 378, 399 n. 14
(6th Cir. 1999); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274 (1977)). “Once the plaintiff has met his burden of establishing that his
protected conduct was a motivating factor behind any harm, the burden of
production shifts to the defendant. If the defendant can show that he would
have taken the same action in the absence of the protected activity, he is
entitled to prevail on summary judgment.” Thaddeus-X, 175 F.3d at 399
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(citation omitted). The Court assumes for the purposes of this analysis only
that Plaintiff could meet his burden. The burden then shifts to Defendants, who
provide evidence that every detainee who passes through the GCDC is tested
for tuberculosis.
The record does establish that Plaintiff would have been tested for
tuberculosis regardless of whether he initially refused the PPD test. But this
conclusion does not compel a finding for the Medical Defendants, because
Nurse Fajardo’s testimony reveals that alternative procedures are available for
detainees who refuse the PPD test. (Fajardo Dep., Dkt. [88] at 17, 46.) Those
detainees may be held in a “negative pressure cell” and given a chest x-ray to
check for the presence of active tuberculosis. (Id. at 46.) The Medical
Defendants have not shown that they would have taken the same action–that is,
a PPD test–in the absence of Plaintiff’s refusal. Accordingly, the Medical
Defendants are not entitled to summary judgment on the First Amendment
retaliation claim, and their motion is DENIED as to Count I.
B.
State-law Battery Claim (Count IV)
Next, Plaintiff contends that Nurse Fajardo’s administration of the PPD
test constituted a battery under Georgia law. Well-settled Georgia law provides
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that a physician may be guilty of battery where he treats a patient without
express or implied consent. Mims v. Boland, 110 Ga. App. 477, 481 (1964).
But “consent to the act by the person affected negates the contact as an
actionable tort.” Id. at 482. Consent may be expressed orally, in writing, or
through the patient’s actions or conduct. Id. Consent “may be implied from
voluntary submission to treatment with full knowledge of what is going on.”
Id. The Court found above that, in this case, the question of whether Plaintiff
manifested his consent to the PPD presents an issue of fact for the jury.
Accordingly, the Medical Defendants’ Motion for Summary Judgment is
DENIED as to Count IV.
C.
Negligence Claim (Count V)
In his final claim against Nurse Fajardo, Plaintiff contends that Nurse
Fajardo’s administration of the PPD test constituted negligence under Georgia
law. Plaintiff bases his negligence claim on O.C.G.A. § 51-1-27, which
provides recovery in tort for negligence of a medical professional.
A plaintiff alleging medical negligence must establish three (3) essential
elements: “(1) the duty inherent in the doctor-patient relationship; (2) the
breach of that duty by failing to exercise the requisite degree of skill and care;
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and (3) that this failure was the proximate cause of the injury sustained.
Negligence alone is insufficient to sustain recovery. It must be proven that the
injury complained of proximately resulted from such want of care or skill. A
bare possibility of such result is not sufficient.” Goggin v. Goldman, 209 Ga.
App. 251, 252 (1993) (internal citations and quotations omitted).
The standard of care required of a medical professional “is that employed
by the medical profession generally and not what one individual [professional]
thought was advisable or would have done under the circumstances.” McNabb
v. Landis, 223 Ga. App. 894, 895 (1996). “Any injuries resulting from a want
of such care and skill shall be a tort for which a recovery may be had.”
O.C.G.A. § 51-1-27. The medical malpractice statutes apply to nurses as well.
See McDowell v. Brown, 392 F.3d 1293 (11th Cir. 2004).
Expert testimony establishes the relevant standard of care. A federal
court applying Georgia law as it pertains to medical malpractice actions must
first ask whether the proffered expert “is qualified to render an opinion
regarding the standard of care.” McDowell, 392 F.3d at 1295. Plaintiff argues
that Nurse Fajardo is competent to testify as to the standard of care. (Pl.’s
Resp., Dkt. [85] at 10.) The Court does not undertake that inquiry at this
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juncture, and nothing in this Order should be read to conclude that Nurse
Fajardo is competent to provide expert testimony. But, because Nurse
Fajardo’s own testimony indicates that she believes she would have breached
the standard of care if she had administered the PPD test without Plaintiff’s
consent (see Fajardo Dep., Dkt. [88] at 20), the Court cannot award the Medical
Defendants summary judgment. Nurse Fajardo apparently concedes that
administration of the PPD without consent would be a breach of the standard of
care; whether Plaintiff consented is a question for the jury. Accordingly, the
Medical Defendants’ Motion for Summary Judgment is DENIED as to the
negligence claim in Count V.
D.
Respondeat Superior Claim (Count VI)
Because state-law tort claims remain against Nurse Fajardo, the Medical
Defendants’ Motion for Summary Judgment is DENIED with respect to the
Respondeat Superior claim against Corizon enumerated in Count VI.
E.
Statute of Limitations
The Medical Defendants move for summary judgment on all counts on
the alternative grounds that Plaintiff’s claims are barred by Georgia’s statute of
limitations. The Medical Defendants concede that Plaintiff filed the Complaint
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within the applicable two-year statute of limitations. (Medical Defs.’ MSJ Br.,
Dkt. [79-2] at 20.) Their argument for summary judgment is instead based on
Plaintiff’s alleged failure to effectuate service.
The Federal Rules of Civil Procedure provide that a plaintiff must effect
service within 120 days of filing his complaint. FED. R. CIV. P. 4(m). Georgia
law, however, requires service within five days. O.C.G.A. § 9-11-4(c). The
Medical Defendants argue that, because Plaintiff did not effectuate service
within five days of filing the Complaint, his claims are barred.
Under Georgia law, merely filing an action does not toll the statute of
limitations. Rather, service of process must be perfected in order to toll the
statute. “If service is perfected within five days of filing the complaint, even
though the statute of limitations has run before service is perfected, service will
relate back.” Cambridge Mut. Fire Ins. Co. v. City of Claxton, Ga., 720 F.2d
1230, 1233 (11th Cir. 1983) (citing Hilton v. Maddox, Bishop, Hayton Frame
& Trim Contractors, Inc., 125 Ga. App. 423, 427 (1972)). “If, however, service
is perfected more than five days after the filing of the complaint and after the
statute of limitations has run, service will relate back only if the plaintiff
diligently attempted to perfect service.” Id. (citing Webb v. Murphy, 142 Ga.
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App. 649 (1977); Bible v. Hughes, 146 Ga. App. 769, 770 (1978); Hilton, 125
Ga. App. at 426). The Medical Defendants argue that Plaintiff did not act
diligently, because he mailed waivers of service to the Medical Defendants on
March 13, 2013, more than three weeks after filing his Complaint. (Medical
Defs.’ MSJ Br., Dkt. [79-2] at 20.)
As the court in Tillman v. Georgia noted, the Medical Defendants’
seemingly simple contention that Plaintiff’s state-law claims are barred by the
statute of limitations “opens a Pandora’s box of procedural specters.” 466 F.
Supp. 2d 1311 (S.D. Ga. 2006) (Edenfield, J.). Here, as in that case, the
Court’s jurisdiction is “mixed”–federal question jurisdiction under 28 U.S.C.
§ 1331 for Plaintiff’s Section 1983 claims, and supplemental jurisdiction under
28 U.S.C. § 1367 for Plaintiff’s pendent state-law battery and negligence
claims.
In Tillman, the court for the Southern District of Georgia engaged in a
detailed analysis of the interplay between statutes of limitations and the state
and federal service provisions, as required by Erie Railroad Co. v. Tompkins,
304 U.S. 64 (1938). The Erie doctrine requires district courts to apply state
law, “[e]xcept in matters governed by the Federal Constitution or by acts of
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Congress.” Erie R. Co., 304 U.S. at 78 (emphasis added). In diversity
jurisdiction cases, Erie and its progeny require a district court to apply the
substantive law of the forum state alongside federal procedural law. Horowitch
v. Diamond Aircraft Indus., Inc., 645 F.3d 1254, 1257 (11th Cir. 2011). The
interplay between Georgia’s statutes of limitations and service requirements
implicates the Erie doctrine, because these provisions are substantive for Erie
purposes. Cambridge Mut. Fire Ins. Co., 720 F.2d at 1232 (citing Guaranty
Trust Co. v. York, 326 U.S. 99 (1945) (holding that state statutes of limitations
are substantive laws); Ragan v. Merchants Transfer & Warehouse Co., 337
U.S. 530 (1949) (holding that a state statute, providing for commencement of a
suit upon service of process, was an integral party of the state statute of
limitations)). All of Plaintiff’s claims against the Medical Defendants are
governed by Georgia’s two-year statute of limitations codified at O.C.G.A. § 93-33.3
The Tillman court found–and this Court agrees–that the Erie doctrine
3
Section 1983 claims “borrow” the statute of limitations from the state where
the action has been brought. Owens v. Okure, 488 U.S. 235, 239-40 (1989); McNair
v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008). In Georgia, the governing limitations
period is two years. Porter v. Ray, 461 F.3d 1315, 1323 (11th Cir. 2006).
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governs the applicable law in the type of case presented here: federal question
jurisdiction with supplemental state law claims. Tillman, 466 F. Supp. 2d at
1314. See also Jackson v. BellSouth Telecommc’ns, 372 F.3d 1250, 1274-75
(11th Cir. 2004) (“we are Erie-bound to apply Florida law in evaluating
plaintiffs’ supplemental state-law claims”). Similarly, the Court agrees with
the Tillman court that the Federal Rules’ service of process requirement
applies, and not Georgia’s state rule providing a shorter service of process
period. 466 F. Supp. 2d at 1321. Accordingly, the timeliness of Plaintiff’s
service is controlled by Rule 4, which allows Plaintiff 120 days after filing to
serve his Complaint. FED. R. CIV. P. 4(m). Plaintiff complied with that
provision, and thus the statute of limitations cannot serve as a basis for
awarding the Medical Defendants summary judgment. The Medical
Defendants’ Motion for Summary Judgment is therefore DENIED.
III.
County Defendants’ Motion for Summary Judgment [83]
The Court now turns to the County Defendants’ Motion for Summary
Judgment [83]. The claims against Deputy Revels, Deputy Bailey, and Deputy
Davis are Section 1983 claims for First Amendment retaliation (Count I) and
Fourteenth Amendment excessive force (Count II), a state-law battery claim
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(Count IV), and a state-law negligence claim (Count V). Plaintiff also brings a
Section 1983 supervisory liability claim against Sheriff Conway (Count III).
The County Defendants move for summary judgment on grounds that
Defendants did not subject Plaintiff to unconstitutionally excessive force and
did not deprive Plaintiff of any constitutionally protected rights. (County
Defs.’ MSJ, Dkt. [83].) Additionally, Sheriff Conway moves for summary
judgment on grounds that he did not personally participate in the alleged
incident, and bears no responsibility for any custom or policy that caused
Plaintiff’s alleged injury. The County Defendants also move for summary
judgment on immunity grounds: qualified immunity for Plaintiff’s federal
claims, and official immunity for Plaintiff’s state law claims. The Court begins
by considering Defendants’ immunity arguments.
A.
Qualified Immunity
The Court outlines each federal claim against the County Defendants,
before turning to the qualified immunity analysis. Plaintiff claims that Deputy
Revels, Deputy Bailey, and Deputy Davis violated his freedom of speech under
the First Amendment and his “right to privacy under the Ninth Amendment”
when they “retaliate[d] against him for refusing to consent to treatment.” (2d
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Am. Compl., Dkt. [40] ¶ 57.) Defendants move for summary judgment on this
claim, arguing that (1) Plaintiff’s refusal of the PPD test does not fall within the
realm of constitutionally protected speech and (2) Defendants’ actions in
escorting Plaintiff to the disciplinary unit were not causally connected to
Plaintiff’s allegedly protected speech. Additionally, Defendants claim that
Plaintiff has provided nothing more than a conclusory allegation that his “right
to privacy” was violated and Defendants are therefore entitled to summary
judgment based on the lack of evidence in the record supporting Plaintiff’s
claim under the Ninth Amendment.
As an initial matter, the Court agrees that Plaintiff’s Ninth Amendment
claim is unsupported by evidence in the record. A reasonable jury could not
find for Plaintiff on the evidence presented. Accordingly, the County
Defendants’ Motion for Summary Judgment is GRANTED as to Plaintiff’s
privacy claim.
The doctrine of qualified immunity protects government officials
performing discretionary functions from being sued in their individual
capacities. Wilson v. Layne, 526 U.S. 603, 609 (1999). Officials are shielded
“insofar as their conduct does not violate clearly established statutory or
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constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “To receive qualified
immunity, a government official first must prove that he was acting within his
discretionary authority.” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir.
2003). For the Section 1983 claims here, the parties do not dispute that
Defendants were acting within the scope of their discretionary authority. Once
the government official has satisfied this initial burden, the burden shifts to the
plaintiff to show that the official is not entitled to qualified immunity. Id. at
1358.
Whether an official is entitled to qualified immunity is determined by a
two-step inquiry: One inquiry is “whether the plaintiff’s allegations, if true,
establish a constitutional violation.” Barnett v. City of Florence, 409 F. App’x
266, 270 (11th Cir. 2010) (citing Hope v. Pelzer, 536 U.S. 730, 736 (2002)).
“If the facts, construed . . . in the light most favorable to the plaintiff, show that
a constitutional right has been violated, another inquiry is whether the right
violated was ‘clearly established.’ ” Id. (citing Saucier v. Katz, 533 U.S. 194,
201 (2001)). “Both elements of this test must be present for an official to lose
qualified immunity, and this two-pronged analysis may be done in whatever
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order is deemed most appropriate for the case.” Id. (citing Pearson v. Callahan,
555 U.S. 223, 241 (2009)). The Court first examines the substantive
constitutional questions.
1.
First Amendment Retaliation Claim
Turning to Plaintiff’s First Amendment retaliation claim, as discussed
supra at Part II.A, a plaintiff must establish three elements to prevail on such a
claim: constitutionally protected speech, retaliatory conduct, and a causal
connection. Smith, 532 F.3d at 1276. With respect to Plaintiff’s claim against
Deputy Revels, Deputy Bailey, and Deputy Davis, the Court finds that Plaintiff
cannot prevail on the third element, the requisite causal connection between
Plaintiff’s allegedly protected speech and the alleged retaliation.
Plaintiff alleges that the Deputies subjected him to “retaliatory force”
when they escorted him to the disciplinary unit following his refusal to consent
to medical treatment. (2d Am. Compl., Dkt. [40] ¶ 56.) But the evidence in the
record shows that the Deputies believed that Plaintiff was non-compliant
because he had refused to sign “medical paperwork” after the administration of
the PPD test. (Revels Depo., Dkt. [90] at 7-9, 32; Davis Depo., Dkt. [95] at
22.) Indeed, the evidence shows that the Deputies had no knowledge of
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Plaintiff’s prior refusal of the PPD test–the speech that forms the basis of
Plaintiff’s First Amendment claim. (Revels Depo., Dkt. [90] at 32.) Rather,
Deputy Bailey simply believed he was dealing with an inmate who had not
complied with an officer’s instructions. (Bailey Depo., Dkt.[94] at 30-31.)
Deputy Davis testified to being aware of Plaintiff’s refusal to sign “a medical
form” (Davis Depo., Dkt. [95] at 22), but Plaintiff provides no evidence to
indicate that the Deputies were aware of Plaintiff’s refusal to consent to
medical treatment. Based on the Deputies’ testimony, Defendants argue that
the Deputies’ motivation was to follow their supervisor’s instructions, not to
retaliate against Plaintiff. Plaintiff provides no evidence to the contrary. A
reasonable jury, therefore, could not conclude that Defendants possessed the
necessary retaliatory intent. Accordingly, Defendants are entitled to qualified
immunity because they did not commit a constitutional violation. The County
Defendants’ Motion for Summary Judgment is GRANTED as to Plaintiff’s
First Amendment claim.
2.
Fourteenth Amendment Excessive Force Claim
Plaintiff claims that the County Defendants used excessive force in
transferring him to the disciplinary unit. “Claims involving the mistreatment of
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arrestees or pretrial detainees in custody are governed by the Fourteenth
Amendment’s Due Process Clause, instead of the Eighth Amendment's Cruel
and Unusual Punishment Clause, which applies to such claims by convicted
prisoners.” Lumley v. City of Dade City, Fla., 327 F.3d 1186, 1196 (11th Cir.
2003) (quoting Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996)). “As
a general rule, to prevail on a claim of a substantive due-process violation, a
plaintiff must prove that a defendant's conduct ‘shocks the conscience.’ ” Id.
(quoting Nix v. Franklin Cnty. School Dist., 311 F.3d 1373, 1375 (11th Cir.
2002)).
A government official’s use of force is excessive under the Eighth or
Fourteenth Amendments4 only if it “shocks the conscience.” Fennell v.
Gilstrap, 559 F.3d 1212, 1217 (11th Cir. 2009). “The use of force does not
‘shock the conscience’ if it is applied in a good-faith effort to maintain or
restore discipline.” Id. (internal quotation marks and citation omitted). If,
however, the use of force is applied “maliciously and sadistically to cause
harm, then it does ‘shock the conscience,’ and is excessive under the Eighth or
4
Excessive force claims under the Fourteenth Amendment are analyzed in the
same manner as Eighth Amendment excessive force claims. Fennell, 559 F.3d at
1216 n.5. Thus, both Eighth and Fourteenth Amendment cases are instructive here.
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Fourteenth Amendments.” Id. (internal quotes and citation omitted). “[O]nly
the most egregious official conduct will be the sort of abusive executive action
that can be sufficiently arbitrary for constitutional recognition as a potentially
viable substantive due process claim.” Carr v. Tatangelo, 338 F.3d 1259, 1271
(11th Cir. 2003) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846
(1998)) (internal quotation marks omitted). “[C]onduct intended to injure in
some way unjustifiable by any government interest is the sort of official action
most likely to rise to the conscience-shocking level.” Lewis, 523 U.S. at 849.
In determining whether force was applied maliciously and sadistically to
cause harm, the Eleventh Circuit considers the totality of the circumstances in
determining whether the amount of force used is obviously excessive. Neal v.
Fulton Cnty. Bd. of Educ., 229 F.3d 1069, 1075 (11th Cir. 2000). In particular,
the Court has examined: (1) the need for the application of force, (2) the
relationship between the need and amount of force used, and (3) the extent of
the injury inflicted. See, e.g., Fennell, 559 F.3d at 1217 (applying these factors
in the prison context); Neal, 229 F.3d at 1076-77 (applying these factors in the
classroom disciplinary context).
In the Eleventh Circuit, “whether or not a prison guard’s application of
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force is actionable turns on whether that force was applied in a good faith effort
to maintain or restore discipline or maliciously or sadistically for the very
purpose of causing harm.” Bozeman v. Orum, 422 F.3d 1265, 1271 (11th Cir.
2005). The County Defendants state that the Deputies placed Plaintiff in
handcuffs and pulled him up to standing by his arms in order to escort Plaintiff
to the disciplinary unit in the manner prescribed by jail policy in order to
maintain order and officer safety. Plaintiff testified that the Deputies
handcuffed Plaintiff “so tightly that his hands felt numb,” bent his arms “all the
way back,” bent his wrist, and dragged him across the floor. (Pl.’s Br. in Opp’n
to County Defs.’ MSJ, Dkt. [91] at 5.) Even construing any ambiguity in the
facts in Plaintiff’s favor, considering the totality of the circumstances, the
Court cannot conclude that Defendants maliciously and sadistically used force
for the very purpose of causing harm.
Plaintiff argues that any use of force in his circumstances was excessive
because he was “compliant” and “not resistant.” (County Defs.’ SOMF, Dkt.
[83-1] ¶¶ 15, 17.) The Eleventh Circuit, however, has permitted using force
even absent physical resistance. See Bennett v. Parker, 898 F.2d 1530, 1533
(11th Cir. 1990) (holding it was not unreasonable for a guard to grab a prisoner
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by the throat and shove him against the prison bars after failing to follow the
guard’s instructions and shouting obscenities). Thus, the fact that Plaintiff was
not physically resisting Defendant does not automatically render any force used
unconstitutional.
Because the County Defendants’ actions did not shock the conscience,
they did not commit a constitutional violation and are therefore entitled to
qualified immunity. Accordingly, the County Defendants’ Motion for
Summary Judgment is GRANTED as to Plaintiff’s Fourteenth Amendment
claim.
B.
Official Immunity
Plaintiff brings state-law claims for battery and negligence. The County
Defendants move for summary judgment with respect to these claims on the
basis of official immunity.
The state constitutional provision governing official immunity provides
as follows:
[A]ll officers or employees of the state or its departments and agencies
may be subject to suit and may be liable for injuries and damages caused
by the negligent performance of, or negligent failure to perform, their
ministerial functions and may be liable for injuries and damages if they
act with actual malice or with actual intent to cause injury in the
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performance of their official functions. Except as provided in this
subparagraph, officers and employees of the state or its departments and
agencies shall not be subject to suit or liability, and no judgment shall be
entered against them, for the performance or nonperformance of their
official functions.
GA. CONST. art. I, § 2, ¶ 9(d). The Supreme Court of Georgia has held that the
term “official functions” refers to “any act performed within the officer’s or
employee’s scope of authority, including both ministerial and discretionary
acts.” Gilbert v. Richardson, 452 S.E.2d 476, 483 (Ga. 1994). Accordingly,
under this definition, the constitutional provision “provides no immunity for
ministerial acts negligently performed or for ministerial or discretionary acts
performed with malice or an intent to injure.” Id. “It however, does provide
immunity for the negligent performance of discretionary acts . . . .” Id. In sum,
under Georgia law, “a public officer or employee may be personally liable only
for ministerial acts negligently performed or discretionary acts performed with
malice or intent to injure.” Harvey v. Nichols, 581 S.E.2d 272, 276 (Ga. Ct.
App. 2003).
Whether an act is ministerial or discretionary depends on the nature of
the act and not the actor’s position. Id. at 380. “A ministerial act is commonly
one that is simple, absolute, and definite, arising under conditions admitted or
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proved to exist, and requiring merely the execution of a specific duty.” Id. By
contrast, a discretionary act “calls for the exercise of personal deliberation and
judgment, which in turn entails examining the facts, reaching reasoned
conclusions, and acting on them in a way not specifically directed.” Id.
As a threshold matter, the Court finds that Defendants’ duties at the
GCDC were discretionary because they called for the exercise of personal
deliberation and judgment. Thus, Defendants can only be held liable under
state law if Plaintiff can show that they acted with actual malice.
For purposes of official immunity, “ ‘actual malice’ requires a deliberate
intention to do wrong, and denotes express malice or malice in fact. It does not
include willful, wanton or reckless conduct or implied malice. Thus, actual
malice does not include conduct exhibiting a reckless disregard for human
life.” Daley v. Clark, 638 S.E.2d 376, 386 (Ga. Ct. App. 2006). Moreover,
“evidence demonstrating frustration, irritation, and possibly even anger is not
sufficient to penetrate official immunity.” Selvy v. Morrison, 665 S.E.2d 401,
406 (Ga. Ct. App. 2008) (internal quotation marks and citation omitted). The
record is inconclusive on Plaintiff’s claims of an injury to his rotator cuff that
he alleges stems from this incident. But even if Defendants’ conduct may have
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caused an injury, and even if their grabbing Plaintiff by the arms and pulling
him to his feet may have been reckless, the record does not support a
conclusion that Defendants deliberately intended to cause Plaintiff bodily
harm. Because Plaintiff cannot show that Defendants acted with actual malice,
Deputy Revels, Deputy Bailey, and Deputy Davis are entitled to official
immunity. Accordingly, the County Defendants’ Motion for Summary
Judgment is GRANTED as to Plaintiff’s state law battery and negligence
claims.
C.
Supervisory Liability Claim
Eleventh Circuit law is well-established that “[s]upervisory officials
cannot be held liable under § 1983 for the unconstitutional actions of their
subordinates based on respondeat superior liability.” Gray ex rel. Alexander v.
Bostic, 458 F.3d 1295, 1308 (11th Cir. 2006) (citing Hartley v. Parnell, 193
F.3d 1263, 1269 (11th Cir.1999)). “Instead, supervisors can be held personally
liable when either (1) the supervisor personally participates in the alleged
constitutional violation, or (2) there is a causal connection between the actions
of the supervisor and the alleged constitutional violation.” Id. Plaintiff does
not allege that Sheriff Conway personally participated in the administration of
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the PPD test or in his transfer to the disciplinary unit. Accordingly, Plaintiff
must show that Sheriff Conway is liable under the second method.
The requisite causal connection can be established when “a history of
widespread abuse puts the responsible supervisor on notice of the need to
correct the alleged deprivation, and he fails to do so.” Hartley v. Parnell, 193
F.3d 1263, 1269 (11th Cir. 1999). These deprivations “must be obvious,
flagrant, rampant and of continued duration, rather than isolated occurrences.”
Id. (citing Brown v. Crawford, 906 F.2d 667, 671 (11th Cir.1990).)
There is no evidence in the record of widespread and obvious uses of
excessive force against detainees by guards at the GCDC. Furthermore, the
evidence presented indicates that Colonel Pinkard–not Sheriff Conway–is
responsible for insuring that the GCDC’s written policies are carried out.
Essentially, Plaintiff’s claim amounts to one based on respondeat superior,
which cannot form the basis for liability in an action brought under Section
1983. Monell v. Dept. of Soc. Servs. of New York, 436 U.S. 658, 694 (1978).
Accordingly, the County Defendants’ Motion for Summary Judgment is
GRANTED as to Plaintiff’s supervisory liability claim.
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Conclusion
In accordance with the foregoing, the Court DENIES Defendants
Corizon Health, Inc. and Susan Fajardo, LPN’s Motion for Summary Judgment
[79]. The Court GRANTS Motion for Summary Judgment on Behalf of
Defendants Sheriff R.L. Conway and Deputies Christopher Revels, Robert
Bailey, and Tochi Davis [83].
The remaining parties shall submit a proposed consolidated pretrial order
within 30 days of the entry of this Order.
SO ORDERED, this 6th day of July, 2015.
________________________________
RICHARD W. STORY
United States District Judge
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