Clowers v. Work

Filing 28

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court should GRANT Defendant's unopposed 20 MOTION for Summary Judgment, DENY Plaintiff's 23 Motion for Summary Judgment, DISMISS Plaintiff's 1 Complaint, and CLOSE thi s case. In addition, the Court should DENY Plaintiff leave to proceed in forma pauperis on appeal. Any party seeking to object to this Report and Recommendation is ordered to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 7/29/2016). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 7/15/2016. (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION

WINFRED CLOWERS,
Plaintiff,

CIVIL ACTION NO.: 5:15-cv-5

v.
OFFICER JONATHAN WORK,
Defendant.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently incarcerated at Coffee Correctional Facility in Nicholls,
Georgia, filed a 42 U.S.C. § 1983 action, contesting certain conditions of his confinement.
(Doc. 1.) On December 15, 2015, Defendant Work (“Defendant”) filed a Motion for Summary
Judgment. (Doc. 20.) The Clerk of Court mailed a Notice to Plaintiff advising him that
Defendant filed a Motion for Summary Judgment and that he must file a response by January 8,
2016. (Doc. 21.) That Notice further advised Plaintiff that:
1.
If you do not timely respond to this motion . . . , the consequence may be
that the Court will deem the motion unopposed, and the Court may enter
judgment against you.
2.
If your opponent’s Statement of Material Facts sets forth facts supported
by evidence, the Court may assume that you admit all such facts unless you
oppose those facts with your own Statement of Material Facts which also sets
forth facts supported by evidence.
3.
If a summary judgment motion is properly supported, you may not rest
on the allegations in your [Complaint] alone.
(Id.) Plaintiff filed no Response to Defendant’s Motion for Summary Judgment, and the Court
received no indication that this Notice or Defendant’s Motion was undeliverable. However,

Plaintiff did file an out of time Motion for Summary Judgment on January 19, 2016. (Doc. 23.)
Nevertheless, even if this Court were inclined to construe Plaintiff’s Motion as a Response to
Defendant’s Motion for Summary Judgment, it still could not do so because Plaintiff’s filing was
untimely. 1

Based on the reasons which follow, the Court should GRANT Defendant’s

unopposed Motion, (doc. 20), DENY Plaintiff’s Motion for Summary Judgment, (doc. 23),
DISMISS Plaintiff’s Complaint, and CLOSE this case. In addition, the Court should DENY
Plaintiff leave to proceed in forma pauperis on appeal.
BACKGROUND
On October 2, 2014, Defendant Work was releasing inmates with job details from the
unit. (Doc. 20, p. 2.) During this time, Plaintiff attempted to leave his housing unit by claiming
that he was an orderly, even though he did not in fact have a work detail. (Id.) However, the
unit’s door was unlocked and Plaintiff tried to force his way out by pushing the door against
Defendant. (Id.) In response, Defendant pushed Plaintiff back into the unit and closed the door.
In the midst of this altercation, Plaintiff knocked Defendant’s radio off. Defendant contends that
he did not close Plaintiff’s arm in the door, but as a precaution, Plaintiff was taken to the
infirmary and examined by medical staff. (Id. at p. 3.) The registered nurse who examined
Plaintiff stated that he had no visible injuries, but because Plaintiff complained of pain in his
arm, the nurse gave Plaintiff a soft splint and aspirin until his arm could be x-rayed several
weeks later. (Id.) The x-ray report indicated that there were no fractures or lesions and the
bones of the left elbow to wrist appeared normal. (Id. at pp. 3, 31.) The medical documents
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Plaintiff is untimely even after taking the prison mailbox rule into account. Houston v. Lack, 487 U.S.
266, 108 (1988). Plaintiff signed his Motion for Summary Judgment five days after the last day to file a
response and twenty-nine days after the last day to file Motions, as laid out in this Court’s Scheduling
Notice. (Doc. 16.) While Plaintiff is a pro se litigant, his unrepresented status does not excuse mistakes
regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We have never
suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes
by those who proceed without counsel.”).

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stated that there were no injuries consistent with Plaintiff’s allegations that Defendant slammed a
heavy metal door on his arm. (Id. at pp. 3, 34.)
DISCUSSION
Defendant asserts in his Motion that: 1) Plaintiff cannot sustain his Eighth Amendment
claims; 2) the Prison Litigation Reform Act bars Plaintiff’s punitive and compensatory damages
claims because Plaintiff did not suffer any injury as a result of Defendant’s actions; and 3)
Plaintiff cannot sustain his state law claims. (Doc. 20, pp. 7–11.) In moving for summary
judgment, Defendant relies on his Statement of Material Facts, copies of Plaintiff’s Grievance
Report and Disciplinary Report, Plaintiff’s medical records, and several declarations sworn
under penalty of perjury. 2 As set forth below, the undersigned agrees that Plaintiff fails to
establish a genuine dispute as to his claim, and the Court should grant Defendant’s Motion as a
result.
I.

Standard of Review
Summary judgment “shall” be granted if “the movant shows that there is no genuine

dispute as to any material fact and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “A dispute about a material fact is genuine and summary judgment is
inappropriate if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party. However, there must exist a conflict in substantial evidence to pose a jury
question.” Hall v. Sunjoy Indus. Grp., Inc., 764 F. Supp.2d 1297, 1301 (M.D. Fla. 2011) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and (Verbraeken v. Westinghouse Elec.
Corp., 881 F.2d 1041, 1045 (11th Cir. 1989)).

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On the other hand, Plaintiff’s only support for his Motion for Summary Judgment is a Statement of
Undisputed Material Facts, which Defendant disputes in a Response filed on January 22, 2016. (Docs.
23-2, 25.) Again, Plaintiff has not filed any materials disputing Defendant’s Statement of Material Facts
and the Court should not consider Plaintiff’s Statement due to his untimeliness.

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The moving party bears the burden of establishing that there is no genuine dispute as to
any material fact and that he is entitled to judgment as a matter of law. See Williamson Oil Co.,
Inc. v. Philip Morris USA, 346 F.3d 1287, 1298 (11th Cir. 2003). Specifically, the moving party
must identify the portions of the record which establish that there are no “genuine dispute[s] as to
any material fact and the movant is entitled to judgment as a matter of law.” Moton v. Cowart,
631 F.3d 1337, 1341 (11th Cir. 2011). When the nonmoving party would have the burden of
proof at trial, the moving party may discharge his burden by showing that the record lacks
evidence to support the nonmoving party’s case or that the nonmoving party would be unable to
prove his case at trial. See id. (citing Celotex v. Catrett, 477 U.S. 317, 322–23 (1986)). In
determining whether a summary judgment motion should be granted, a court must view the
record and all reasonable inferences that can be drawn from the record in a light most favorable
to the nonmoving party. Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee Cty., 630 F.3d
1346, 1353 (11th Cir. 2011).
II.

Plaintiff’s Use of Force Claim
Plaintiff’s excessive use of force claim and Defendant’s Motion require analysis of the

Eighth Amendment’s proscription against cruel and unusual punishment. That proscription
governs the amount of force that prison officials are entitled to use against inmates. Campbell v.
Sikes, 169 F.3d 1353, 1374 (11th Cir. 1999). An excessive force claim has two requisite parts:
an objective and a subjective component. Sims v. Mashburn, 25 F.3d 980, 983 (11th Cir. 1994).
In order to satisfy the objective component, the inmate must show that the prison official’s
conduct was “sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting
Wilson v. Seiter, 501 U.S. 294, 298 (1991)). The subjective component requires a showing that
the force used was “maliciously and sadistically for the very purpose of causing harm” rather

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than “a good faith effort to maintain or restore discipline.” Whitley v. Albers, 475 U.S. 312,
320–21 (1986). In order to determine whether the force was used for the malicious and sadistic
purpose of causing harm or whether the force was applied in good faith, courts consider the
following factors: the need for the exercise of force, the relationship between the need for force
and the force applied, the extent of injury that the inmate suffered, the extent of the threat to the
safety of staff and other inmates, and any efforts taken to temper the severity of a forceful
response. Skelly v. Okaloosa Cty. Bd. of Cty. Comm’rs, 456 F. App’x 845, 848 (11th Cir. 2012)
(quoting Fennell v. Gilstrap, 559 F.3d 1212, 1217 (11th Cir. 2009)). “‘When considering these
factors, [the court] ‘give[s] a wide range of deference to [jail] officials acting to preserve
discipline and security, including when considering decisions made at the scene of a
disturbance.’ [The Court] examine[s] the facts as reasonably perceived by [Defendants and their
subordinates] on the basis of the facts known to [them] at the time.’” Shuford v. Conway, 86 F.
Supp. 3d 1344 (N.D. Ga. 2015) (quoting Fennell, 559 F.3d at 1217–18) (alterations in original).
Hudson, 503 U.S. at 5).
This Court takes Defendant’s Motion for Summary Judgment as unopposed due to
Plaintiff’s lack of Response. However, even if in an abundance of caution, the Court were to
take Plaintiff’s untimely Motion for Summary Judgment as a timely Response to Defendant’s
Motion, Plaintiff still does not provide enough information to support his claim. Plaintiff simply
offers a sparse Statement of Undisputed Material Facts—unsupported by any evidence—stating
that he waved his hand outside his cell door to get the attention of a Correctional Officer, then
“Defendant Work assaulted Plaintiff with his hands (Fist) and steel door of Dorm EE. Plaintiff’s
arm was put in cast and given pain killers for the pain.” (Doc. 23-2, p. 1.) Plaintiff makes no
averments that Defendant acted maliciously or sadistically or even knew that Plaintiff’s arm was

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outside the cell door. At most Plaintiff’s account indicates negligence on Defendant’s part which
does not rise to the level of an Eighth Amendment claim for excessive force.

Cty. Of

Sacramento v. Lewis, 523 U.S. 833, 849 (1998) (“liability for negligently inflicted harm is
categorically beneath the threshold of constitutional due process.”).

Additionally, all of

Plaintiff’s medical records directly contradict the account provided in his Statement of
Undisputed Material Facts. See Vicks v. Knight, 380 F. App’x 847 (11th Cir. 2010) (Even if
plaintiff and defendant have contradictory accounts of excessive force, summary judgment may
be granted in favor of prison officials where medical records do not corroborate inmate’s
allegations of excessive force); see also Evans v. Schnake, No. 7:11-CV-29(HL), 2012 WL
1802453 (M.D. Ga. Apr. 24, 2012) (crediting the medical evidence, which clearly undermined
Plaintiff’s alleged injuries).
In contrast, Defendant shows the following through his supporting materials in light of
the factors the Court is to consider when analyzing whether an Eighth Amendment use of force
was done wantonly and unnecessarily to cause harm.
A.

The Need for the Exercise of Force

Based on the facts before the Court, there appears to have been a need for Defendant
Work’s exercise of force. Plaintiff attempted to escape his cell, first through deceit, and when
that failed, by trying to force open the door. (Doc. 20, p. 2.) Plaintiff used enough strength that
he knocked Defendant’s radio off. Defendant needed to use some measure of force against
Plaintiff in an effort to secure Plaintiff back in his cell and restore discipline. Thus, this factor
weighs in Defendant’s favor. Alday v. Groover, No. CV 212-108, 2014 WL 1320093, at *6
(S.D. Ga. Mar. 31, 2014) (noting that an “official need not wait until disturbances are dangerous

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before using force to restore order.”) (citing Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th Cir.
2007)).
B.

The Relationship Between the Need for the use of Force and the Amount
Applied

Defendant used an appropriate amount of force in light of the fact that Plaintiff was
attempting to force his way out of the unit. Defendant pushed Plaintiff in an attempt to secure
Plaintiff back in his cell and close the door. (Doc. 20, p. 3.) Given the overriding security
concerns, Defendant’s push was warranted. Lester v. Ga. Dep’t of Corr., No. 6:15-cv-110, 2016
WL 146514, at *4 (S.D. Ga. Jan. 12, 2016) (citing Brown v. Smith, 813 F.2d 1187, 1189–90
(11th Cir. 1987) (upholding judgment in favor of an officer who used force against an inmate to
accomplish the legitimate security purpose of getting the inmate into his cell), adopted by 2016
WL 524616 (Feb. 5, 2016). Furthermore, Defendant’s use of force would still be justified if he
did in fact close the door on Plaintiff’s arm as Plaintiff claims. Cf. Hutcheson v. Binion, No.
4:09CV056-M-S, 2011 WL 2669078, *3 (N.D. Miss. May 3, 2011) (finding that the first time an
officer slammed a prisoner’s arm may have been inadvertent in an attempt to maintain order, but
it became “obvious” that the officer’s repeated slamming of the inmate’s arm in the flap crossed
into the “unreasonable or even malicious territory.”). Given the above reasons, this factor also
weighs in Defendant’s favor, particularly because the Court gives greater “deference to prison
officials acting to preserve discipline and security, especially when they make decisions at the
scene of a disturbance. Williams v. Slack, 438 F. App’x 848, 851 (11th Cir. 2011).
C.

The Extent of Plaintiff’s Injuries

The extent of Plaintiff’s injury also weighs in favor of Defendant. The extent of injury
“is a relevant factor in determining whether the use of force could plausibly have been thought
necessary under the circumstances and may be an indication of the amount of force applied.”

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Logan v. Smith, 439 F. App’x 798, 800 (11th Cir. 2011) (citing Wilkins v. Gaddy, 559 U.S. 34,
37 (2010)). However, while the resulting injury can be indicative, the key inquiry is the amount
of force applied by Defendant, not the severity of the injury that resulted to Plaintiff. Id. at 800–
01 (citing Wilkins, 559 U.S. at 37). Injury and force are “imperfectly correlated,” and “[a]n
inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force
claim merely because he has the good fortune to escape without serious injury.” Wilkins, 559
U.S. at 38.
In the case at hand, Plaintiff’s injuries were minimal.

All of Plaintiff’s medical

documentation indicates that he had no injuries consistent with excessive force. The medical
report from Plaintiff’s initial exam stated that there was no appearance of injury, Plaintiff had a
full range of motion, and that there were “no signs consistent with complaint.” (Doc. 1, p. 33–
34.) However, because Plaintiff complained about the pain, the nurse provided a “splint with
ACE Wrap” and aspirin until an x-ray could be taken. Even then, the x-ray indicated that
Plaintiff had a “normal left forearm” with no fractures, dislocations, or lesions. (Doc. 20, p. 31.)
While injury and the amount of force are imperfectly correlated, here the indisputably
minimal injuries that Plaintiff suffered reveal that Defendant only applied minimal force.
Wilkins, 559 U.S. at 38 (“An inmate who complains of a ‘push or shove’ that causes no
discernible injury almost certainly fails to state a valid excessive force claim.”) These injuries
are so insignificant that they weigh against the jury finding for Plaintiff on the “core judicial
inquiry” of whether “the nature of the force—specifically, whether it was nontrivial and ‘was
applied . . . maliciously and sadistically to cause harm.’” Wilkins, 559 U.S. at 39 (alteration in
original) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)).

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D.

Extent of Threat to the Safety of Staff and Other Inmates

Defendant acted to maintain security and discipline when he used force. Plaintiff first
attempted to escape his unit by lying about his work detail. When that failed, Plaintiff escalated
the situation by trying to forcibly leave and pushing the door hard enough to knock Defendant’s
radio to the floor. (Doc. 20, p. 21.) Defendant pushed Plaintiff to get him back into the cell and
to secure the door. This factor also weighs in Defendant’s favor given Plaintiff’s forced attempt
to escape.
E.

Any Efforts Taken to Temper the Severity of the Forceful Response

Given Plaintiff’s injuries resulting from Defendant’s use of force, little effort was needed
to mitigate the effects of the force. However, Plaintiff not only received a medical evaluation,
but also an x-ray when he continued to complain about the pain. (Doc. 29-2, p. 3.) Given the
low severity of Plaintiff’s injury and the amount of medical care provided, the evidence reveals
no impropriety and, therefore, falls in Defendant’s favor. Alday, 2014 WL 1320093, at *7.
None of the five factors this Court needs to examine for excessive force claims cuts in
Plaintiff’s favor. Consequently, the Court should GRANT this portion of Defendant’s Motion
for Summary Judgment and DISMISS Plaintiff’s excessive force claims.
III.

Plaintiff’s State Law Claims
During the frivolity review stage, this Court initially extended supplemental jurisdiction

over Plaintiff’s state law claims because they were “so related to [the federal] claims in the
action…that they form part of the same case or controversy . . . .” 28 U.S.C. § 1367(a). While
the “dismissal of [Plaintiff’s] underlying federal question claim does not deprive the court of
supplemental jurisdiction over the remaining state law claims[,]” the Court does have the
“discretion to decline to exercise supplemental jurisdiction over non-diverse state law claims,

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where the court has dismissed all claims over which it had original jurisdiction.” Baggett v. First
Nat. Bank of Gainesville, 117 F.3d 1342, 1352 (11th Cir. 1997); 28 U.S.C. § 1367(c). In fact,
the law actually favors the dismissal of state law claims once the court has dismissed the federal
claims. Mergens v. Dreyfoos, 166 F.3d 1114, 1119 (11th Cir. 1999) (in its discretion the district
court may dismiss state law claims after dismissing federal claims; “[m]ore specifically . . . if the
federal claims are dismissed prior to trial, [United Mine Workers v. Gibbs, 383 U.S. 715, 726
(1966)] strongly encourages or even requires dismissal of state claims”) (quotes and cite
omitted); accord Granite State Outdoor Adver., Inc. v. Cobb Cty., 193 F. App’x. 900, 907 (11th
Cir. 2006). When exercising its discretion, the Court takes into consideration the fact that “state
courts, not federal courts, should be the final arbiters of state law.” Ingram v. Sch. Bd. of
Miami–Dade Cty., 167 F. App’x 107, 108 (11th Cir. 2006); see also Hicks v. Moore, 422 F.3d
1246, 1255 n.8 (11th Cir. 2005) (“Certainly, if the federal claims are dismissed before trial, . . .
the state claims should be dismissed as well.”) (internal quotation and citation omitted); Raney v.
Allstate Ins. Co., 370 F.3d 1086, 1088–89 (11th Cir. 2004) (“We have encouraged district courts
to dismiss any remaining state claims when, as here, the federal claims have been dismissed prior
to trial.”). Consequently, the Court should decline to retain jurisdiction and DISMISS Plaintiff’s
state law claims WITHOUT PREJUDICE.
IV.

Leave to Appeal In Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 3

Though

Plaintiff has, of course, not yet filed a notice of appeal, it would be appropriate to address these
issues in the Court’s order of dismissal. See Fed. R. App. R. 24(a)(1)(A) (“A party who was
permitted to proceed in forma pauperis in the district-court action, . . ., may proceed on appeal in
3

A Certificate of Appealability (“COA”) is not required to file an appeal in a Section 1983 action. See
Fed. R. App. P. 3 & 4; Morefield v. Smith, No. 607CV010, 2007 WL 1893677, at *1 (S.D. Ga. July 2,
2007) (citing Mathis v. Smith, No. 05-13123-A (11th Cir. Aug. 29, 2005) (unpublished)).

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forma pauperis without further authorization, unless the district court—before or after the notice
of appeal is filed—certifies that the appeal is not taken in good faith[.]”) (italics supplied). An
appeal cannot be taken in forma pauperis if the trial court certifies, either before or after the
notice of appeal is filed, that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3). Good
faith in this context must be judged by an objective standard. Busch v. Cty. of Volusia, 189
F.R.D. 687, 691 (M.D. Fla. 1999). A party does not proceed in good faith when he seeks to
advance a frivolous claim or argument. See Coppedge v. United States, 369 U.S. 438, 445
(1962). A claim or argument is frivolous when it appears the factual allegations are clearly
baseless or the legal theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327
(1989); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma
pauperis action is frivolous and, thus, not brought in good faith, if it is “without arguable merit
either in law or fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v.
United States, Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Based on the above analysis of Defendant’s Motion for Summary Judgment, the Court
should DENY Plaintiff’s potential in forma pauperis status on appeal as there are no nonfrivolous issues to raise, and any appeal would not be taken in good faith.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court GRANT Defendant’s
unopposed Motion for Summary Judgment, (doc. 20), DENY Plaintiff’s Motion for Summary
Judgment, (doc. 23), DISMISS Plaintiff’s Complaint, and CLOSE this case. In addition, the
Court should DENY Plaintiff leave to proceed in forma pauperis on appeal.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and

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Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Clerk of Court is DIRECTED
to serve a copy of this Report and Recommendation upon the parties.
SO REPORTED and RECOMMENDED, this 15th day of July, 2016.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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