Christian v. Toole et al
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court GRANT in part and DISMISS as moot in part Defendants' unopposed 42 MOTION for Summary Judgment and DISMISS Plaintiff's claims against Defendants Toole, Thomas, Allen R egister, and Brooks. It is also RECOMMENDED that the Court DISMISS Plaintiff's claims against Defendant Brewton. Accordingly, it is further RECOMMEDED the Court DIRECT the Clerk of Court to CLOSE this case and DENY Plaintiff in forma pauperis status on appeal. Additionally, the Court dismissed all claims against Defendants Delouche and Fowler on September 20, 2016. Thus the Court DIRECTS the Clerk of Court to ensure that the record reflects the termination of those two Defendants. Any pa rty 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 3/8/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 2/22/2017. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.: 6:15-cv-38
WARDEN RANDY TOOLE; MS. THOMAS;
MS. REGISTER; MR. ALLEN; LARRY
BREWTON; and MR. BROOKS,
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who was formerly housed at Hays State Prison in Trion, Georgia, filed a 42
U.S.C. § 1983 action, contesting certain conditions of his confinement while he was housed at
Georgia State Prison in Reidsville, Georgia. (Doc. 1.) On August 22, 2016, Defendants Toole,
Thomas, Allen, Register, and Brooks (“Defendants”) 1 filed a Motion for Summary Judgment.
(Doc. 42.) The Clerk of Court mailed a Notice to Plaintiff advising him that Defendants filed a
Motion for Summary Judgment and that a response must be filed by September 15, 2016.
(Doc. 43.) That Notice further advised Plaintiff that:
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.
On January 26, 2017, the Court once again ordered service upon Defendant Brewton. (Doc. 55.) As
Defendant Brewton has yet to be served with a copy of Plaintiff’s Complaint, as amended, he has not
joined in the Motion for Summary Judgment. Additionally, counsel for those Defendants who have been
served with the Complaint recently filed a Suggestion of Death as to Defendant Brewton. (Doc. 57.)
Thus, the Court refers to the moving Defendants (Toole, Thomas, Allen, Register, and Brooks)
collectively as “Defendants” throughout this Report. Despite these circumstances, the Court addresses
Plaintiff’s claims against him in Section IV of this Report. Additionally, the Court dismissed all claims
against Defendants Delouche and Fowler on September 20, 2016. (Doc. 47.) Thus, the Court DIRECTS
the Clerk of Court to ensure that the record reflects the termination of those two Defendants.
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.
If a summary judgment motion is properly supported, you may not rest
on the allegations in your [Complaint] alone.
Plaintiff filed no Response to Defendants’ Motion for Summary Judgment, and the Court
received no indication this Notice or Defendants’ Motion was undeliverable. However, “the
district court cannot base the entry of summary judgment on the mere fact that the motion [is]
unopposed but, rather, must consider the merits of the motion.” United States v. One Piece of
Real Property Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004)
(citation omitted). Specifically, the court “must still review the movant’s citations to the record
to determine if there is, indeed, no genuine issue of material fact.” Mann v. Taser Int’l, Inc., 588
F.3d 1291, 1303 (11th Cir. 2009) (citation omitted).
Based on the reasons which follow, I RECOMMEND the Court GRANT in part and
DISMISS as moot in part Defendants’ unopposed Motion and DISMISS Plaintiff’s claims
against Defendants Toole, Thomas, Allen, Register, and Brooks. I also RECOMMEND the
Court DISMISS Plaintiff’s claims against Defendant Brewton.
Accordingly, I further
RECOMMEND the Court DIRECT the Clerk of Court to CLOSE this case and DENY
Plaintiff in forma pauperis status on appeal.
Plaintiff’s claims stem from an attack he suffered at the hands of another inmate on
October 17, 2013. (Doc. 16, p. 1.) On the date of the attack, Plaintiff and his roommate were
escorted from their cell to a recreation pen for one hour of recreation. (Id.) At the end of the
recreation period, Defendant Thomas handcuffed Plaintiff’s and his roommate’s hands behind
their backs and told them to exit the recreation pen and walk back to their dorm. (Id.) Defendant
Register told Plaintiff and his roommate to continue to his dorm room without an escort, which
Plaintiff contends is against proper procedure. (Id.) Once Plaintiff reached the top of the stairs,
Officer Allen was in the vicinity. (Id.) Then, “without warning”, inmate Porter (who was not
Plaintiff’s roommate) stabbed Plaintiff several times from behind. According to Plaintiff, inmate
Porter should have been locked in a secure recreation pen. (Id. at pp. 1–2.)
Once the attack took place, no officers in the area intervened on Plaintiff’s behalf to try
and stop the assault. (Id.at p. 2.) Plaintiff claims that, at the beginning of the attack, Ms.
Thomas, Ms. Register, Mr. Allen, and Mr. Brooks were in the area. (Id.) Once Plaintiff saw
none of these officers were trying to stop the attack, he attempted to run from inmate Porter, but
inmate Porter chased Plaintiff down and continued to stab him. (Id.) At this point, more officers
arrived, including Defendants Toole and Brewton.
However, none of the officers
attempted to stop the assault or otherwise intervened on Plaintiff’s behalf. (Id.) Inmate Porter
stopped the attack “on his own free will”. (Id.) Plaintiff was then escorted to the medical unit,
where he was diagnosed with a punctured lung, and he was then rushed to a local hospital for
treatment for several days. (Id.)
The recited allegations are taken from Plaintiff’s Complaint and are viewed in the light most favorable
to Plaintiff, the non-moving party. However, this is not to say the Court accepts the allegations contained
in Plaintiff’s Complaint as true. Defendants offer their own version of events through their Motion and
Statement of Material Facts, to which Plaintiff failed to offer a response. Defendants’ undisputed
material facts are set forth in Section II of this Report.
Defendants maintain they are entitled to summary judgment because they were not in a
position to intervene on Plaintiff’s behalf. Defendants also contend they are entitled to qualified
immunity. Additionally, Defendants assert Defendant Brewton has not been served properly and
should be dismissed as a named Defendant pursuant to Federal Rule of Civil Procedure 4(m). In
moving for summary judgment, Defendants rely on their Statement of Material Facts, a copy of
the transcript from Plaintiff’s deposition, several declarations sworn under penalty of perjury,
and a DVD depicting the October 17, 2013, incident.
As set forth below, the undersigned agrees that Plaintiff fails to establish a genuine
dispute as to his failure to intervene claims, and Defendants’ Motion is due to be granted as a
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)).
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., Fla., 630 F.3d
1346, 1353 (11th Cir. 2011).
Plaintiff’s Failure to Intervene Claims
Plaintiff’s claims and Defendants’ Motion give rise to a discussion of the Eighth
Amendment of the Constitution. The Eighth Amendment can impose upon prison officials the
duty to intervene in some cases. In Johnson v. Boyd, 568 F. App’x 719 (11th Cir. 2014), the
Eleventh Circuit Court of Appeals found that the plaintiff failed to state a claim for failure to
intervene where another inmate attacked the plaintiff, but the complaint was lacking any
allegations about the duration of the fight or that “the officers waited an unreasonable amount of
time to intervene after Hanley attacked [the plaintiff].” The court stated:
The district court partially construed Johnson’s complaint as a ‘failure to
intervene’ claim, citing Ensley v. Soper, 142 F.3d 1402, 1407 (11th Cir. 1998),
which holds that an officer has a duty to intervene if he observes a constitutional
violation and is in a position to intervene. While it is well settled that Ensley
applies to situations where one officer observes a fellow officer violating a
constitutional right, typically by using excessive force, we have not explicitly
adopted this holding in a situation involving an officer observing a fight between
Id. at 722 n.2 (emphasis added) (internal citation omitted).
Despite this footnote, the Eleventh Circuit has held that a prison official can be liable
under the Eighth Amendment for failing to take reasonable steps to intervene on behalf of the
victim of an ongoing assault by another inmate. Murphy v. Turpin, 159 F. App’x 945, 948 (11th
Cir. 2005) (applying deliberate indifference standard to claim that prison official failed to
intervene in inmate-on-inmate assault). “Prison correctional officers may be held directly liable
under § 1983 if they fail or refuse to intervene when a constitutional violation occurs in their
presence.” Terry v. Bailey, 376 F. App’x 894, 896 (11th Cir. 2010) (citing Ensley, 142 F.3d at
1407). “However, in order for liability to attach, the officers must have been in a position to
intervene.” Id. (internal citation omitted). Indeed, the Eleventh Circuit found in Johnson that a
failure to intervene claim, similar to a failure to protect claim, would require allegations that:
(1) another inmate’s physical assault created a substantial, objective risk of injury, (2) of which a
defendant is subjectively aware, (3) the defendant was in a position to intervene, and (4) the
defendant did not respond reasonably to the risk of injury. See Johnson, 568 F. App’x at 724–
25. In situations in which an inmate seeks to hold officers liable for failing to intervene in an
attack at the hands of another inmate, liability attaches only if the officer “‘was physically able
and had a realistic chance to intervene and act in time to protect the inmate plaintiff.’” Smith v.
Andrews, CV 114-206, 2016 WL 6818755, at *4 (S.D. Ga. Nov. 16, 2016) (quoting Glispy v.
Raymond, 2009 WL 2762636, *3 (S.D. Fla. 2009)), report and recommendation adopted, 2016
WL 7197446 (S.D. Ga. Dec. 9, 2016). “Regardless of the presence or absence of a weapon in
the hands of the attacking inmates, ‘no rule of constitutional law requires unarmed officials to
endanger their own safety in order to protect a prison inmate threatened with physical violence.’”
Seals v. Marcus, No. 1:11-CV-99-WLS, 2013 WL 656873, at *8 (M.D. Ga. Jan. 25, 2013)
(quoting Longoria v. Texas, 473 F.3d 586, 594 (5th Cir. 2006)); see also Prosser v. Ross, 70 F.3d
1005, 1008 (8th Cir. 1995) (“[P]rison guards have no constitutional duty to intervene in the
armed assault of one inmate upon another when intervention would place the guards in danger of
physical harm.”); Winfield v. Bass, 106 F.3d 525, 532 (4th Cir. 1997) (“[A]ll of the authority of
which we are aware leads to the conclusion that such heroic measures are not constitutionally
In this case, Defendants unrefuted Statement of Material Facts and other exhibits
establish the following. Defendants Allen, Brooks, Register, and Thomas were assigned to the
G-Building escort post on October 17, 2013. As part of their duties, these Defendants monitored
the G-south small yards. (Doc. 42-2, p. 1.) Plaintiff and inmate Porter were inmates housed in
administrative segregation on this date and were allowed an hour of outside time in an enclosed
chain link holding pen. (Id.) Plaintiff and inmate Porter were housed in separate holding pens in
the G-south yard on October 17, 2013, and Defendants Brooks and Thomas were escorting
Plaintiff and his cellmate from the holding pen back to the dormitory while Defendants Allen
and Register were standing on the stairs leading into the yard. (Doc. 42-5, p. 2; Doc. 42-7, p. 2.)
Plaintiff was handcuffed behind his back prior to this escort, in accord with standard procedure.
(Doc. 42-5, p. 2; Doc. 42-6, p. 2; Doc. 42-7, p. 2; Doc. 42-8, p. 2.) However, inmate Porter, who
was still in his holding pen, was not handcuffed, per standard procedure, and escaped his holding
cell. (Doc. 42-5, p. 2; Doc. 42-6, p. 2; Doc. 42-8, p. 2.)
Inmate Porter came up behind Defendants Brooks and Thomas, Plaintiff, and his cellmate
by running toward them “in an aggressive manner.”
(Doc. 42-5, p. 3; Doc. 42-7, p. 2.)
Defendants Allen and Register immediately yelled to Defendants Brooks and Thomas that
inmate Porter was approaching them, but Defendants Brooks and Thomas did not see inmate
Porter until he reached them. (Doc. 42-7, p. 2; Doc. 42-8, p. 2.) Inmate Porter began stabbing
Plaintiff. Defendant Allen called into his handheld radio for a “10-78”, which means that
officers needed immediate assistance in the yard, and he ran into the yard. (Doc. 42-5, p. 3.)
According to Defendants, there was nothing Defendants Brooks or Thomas could have done at
that time to prevent inmate Porter from stabbing Plaintiff. (Doc. 42-6, pp. 2–3; Doc. 42-8, pp. 2–
3.) Plaintiff then ran twenty to thirty feet in an attempt to get away from inmate Porter, but
inmate Porter was able to catch Plaintiff and stab him multiple times before he stopped.
Defendants and other correctional officers had given inmate Porter several direct orders to stop
stabbing Plaintiff and to drop his weapon, (doc. 42-5, p. 3; doc. 42-6, p. 6; doc. 42-7, p. 2; doc.
42-8, p. 3), and inmate Porter threatened to stab anyone who attempted to intervene, (doc. 42-7,
p. 2). Defendant Toole asserts he was not on the yard at the time of the attack, did not witness
any part of the attack, and only learned of this attack later in the afternoon of October 17, 2013.
(Doc. 42-9, p. 2.) In fact, Defendants Allen, Thomas, Register, and Brooks all stated they did
not recall seeing Defendant Toole in the yard at the time of the attack. (Doc. 42-5, p. 5; Doc. 426, p. 5; Doc. 42-7, p. 3; Doc. 42-8, p. 5.) Plaintiff testified that Defendant Toole was not on the
yard at the time of this attack. (Doc. 42-4, p. 5.)
Defendants declare that, from the time inmate Porter approached Plaintiff until the time
he was handcuffed and taken from the scene, approximately two and a half minutes elapsed.
(Doc. 42-9, p. 4; Doc. 42-1, p. 9.) In addition, Defendants testify that less than one minute
elapsed between the time inmate Porter began stabbing Plaintiff until he ceased after chasing
Plaintiff in the yard. (Doc. 42-5, p. 4; Doc. 42-6, p. 3; Doc. 42-7, p. 3; Doc. 42-8, p. 3.) Further,
Defendants contend they were not armed with weapons of any sort, such as guns, batons, or
pepper spray as part of their assignments in the G-south yard, nor was there a weapon repository
nearby where the officers could retrieve weapons quickly. (Doc. 42-5, p. 4; Doc. 42-6, pp. 3–4;
Doc. 42-7, p. 3; Doc. 42-8, pp. 3–4.) Moreover, Defendants Allen, Thomas, Register, and
Brooks were wearing standard-issue “soft” uniforms, which comprised of a shirt and pants
lacking any sort of protective padding or materials. (Doc. 42-5, p. 4; Doc. 42-6, p. 4; Doc. 42-7,
p. 3; Doc. 42-8, p. 4.)
The uncontroverted evidence before the Court reveals that Defendants were not in a
position to intervene safely in inmate Porter’s stabbing of Plaintiff. Defendants submitted a
DVD of the stationary camera which recorded the October 17, 2013, events. 3 This DVD shows
Plaintiff and his cellmate being handcuffed and escorted by two correctional officers from the
recreation cage to the dormitory when inmate Porter began running from the back of this cage.
(Doc. 44, 2:33:57.) Inmate Porter approached the back of this escort and began stabbing Plaintiff
while two other officers were climbing down the stairs. Plaintiff ran away from the initial
stabbing, and inmate Porter gave chase. Plaintiff and inmate Porter were then out of view of the
camera. (Id. at 2:34:02–2:34:07.) One of the officers immediately began speaking into a radio.
(Id. at 2:34:18.) Even though the camera did not capture what was happening between Plaintiff
and inmate Porter at this time, the DVD shows that several officers approached the scene, and it
appears these officers were yelling at inmate Porter. (Id. at 2:34:20–2:35:15.) Inmate Porter was
handcuffed and escorted away from the yard. (Id. at 2:36:34.) None of the officers present at the
scene appeared to have been carrying any sort of weapon on their person.
Contrary to Plaintiff’s claim that inmate Porter’s attack on Plaintiff lasted “at least 45
minutes” (doc. 42-4, p. 6), the uncontroverted evidence shows that this entire incident barely
lasted more than two and a half minutes’ time.
In addition, Plaintiff testified during his
While this DVD is not of the best quality and there is no audio, it is of sufficient enough quality that the
Court was able to discern this DVD supports Defendants’ accounts of the events of October 17, 2013.
deposition that he did not know if Defendants or the other officers had any weapons. 4 (Id. at
p. 10.) Further, there is no evidence contradicting Defendants’ accounts that they were not
wearing any material which could have protected them should Porter have turned to attack them.
Moreover, there is no evidence before the Court that Defendants were carrying any weapon they
could have used to protect themselves or to stop inmate Porter’s attack. Thus, the record simply
lacks any evidence that, during the less than a minute that Porter attacked Plaintiff, Defendants
could have safely and effectively intervened on Plaintiff’s behalf in a violent attack by an armed
Additionally, there is no evidence that Defendant Toole was present on the G-south yard
at any time during inmate Porter’s attack of Plaintiff. Defendant Toole describes himself as a
middle-aged, white male who would have been wearing a tie and a long-sleeved button down
shirt, (doc. 42-9, p. 4); however, the only white male wearing a long-sleeved button down shirt
on the DVD does not look middle-aged, and he was not wearing a tie.
Plaintiff has failed to establish that Defendants violated the Eighth Amendment by failing
to intervene on his behalf. Defendants have demonstrated that they were not in a position to
safely stop inmate Porter’s attack. In contrast, Plaintiff fails to present any evidence that inmate
Porter’s attack lasted as long as he claims it did or that Defendants were in a position to intervene
and failed to do so. In fact, Plaintiff’s account of this incident is wholly contradicted by the
evidence before the Court, particularly the DVD of this incident, and the Court need not accept
Plaintiff’s account. Joassin v. Murphy, 661 F. App’x 558, 559 (11th Cir. 2016) (recognizing
that, under Scott v. Harris, 550 U.S. 372, 380 (2007), courts “should disregard a party’s sworn
Plaintiff also testified that Defendants Toole and Brewton and the other correctional officers on the
scene had pepper spray and “pending enough weapons to uphold and stop him . . . and to protect me, . . .
intervening the situation . . . which none of this occurred.” (Doc. 42-4, p. 6.) However, this testimony is
not supported by the record, and Plaintiff contradicted this testimony at the end of his deposition.
account of the events if it is ‘blatantly contradicted by the record, so that no reasonable jury
could believe it.’”).
Plaintiff has failed to establish a genuine dispute as to any fact material to his failure to
intervene claims against Defendants Toole, Thomas, Allen, Register, and Brooks. Thus, the
Court should GRANT these Defendants summary judgment and DISMISS all claims against
them WITH PREJUDICE. It is unnecessary to address Defendants’ qualified immunity claims,
and the Court should DISMISS as moot this portion of Defendants’ Motion. Flowers v. Lane,
No. 2:14-CV-138, 2016 WL 1627679, at *6 (S.D. Ga. Apr. 22, 2016) (citing Martinez v. Burns,
459 F. App’x 849, 851 (11th Cir. 2012) (a qualified immunity defense need not be addressed if
the plaintiff cannot sustain an underlying constitutional claim), report and recommendation
adopted, No. 2:14-CV-138, 2016 WL 2889042 (S.D. Ga. May 17, 2016).
Dismissal for Lack of Proper Service
Defendants maintain Plaintiff’s claims against Defendant Brewton should be dismissed
because he has not been served with a copy of Plaintiff’s Amended Complaint within the time
limits set forth by Federal Rule of Civil Procedure 4(m). (Doc. 42-1, p. 21.) However, the Court
directed Andrew Magruder, Defendants’ counsel, to assist the Court in having Plaintiff’s
Amended Complaint served upon Defendant Brewton, and Mr. Magruder complied with this
directive. (Docs. 52, 54.) The Court once again directed service of Plaintiff’s Complaint upon
Defendant Brewton in its January 26, 2017, Order. (Doc. 55.) Because the Court has extended
the time for service upon Defendant Brewton, the Court should DISMISS as moot this ground
of Defendants’ Motion.
Dismissal of Claims Against Defendant Brewton
Nevertheless, Defendants’ counsel filed an Amended Suggestion of Death as to
Defendant Brewton on February 22, 2017, and informed the Court that Larry Brewton passed
away on February 13, 2017. (Doc. 57.) “‘[G]enerally, in a federal civil rights action, state
survival statutes govern the issue of survivability to the extent they are not inconsistent with
federal law, following the death of a person who has been deprived of his or her civil rights, or
who has deprived another of his or her civil rights.’” Simmons v. Prison Health Servs., Inc., No.
CV408-239, 2009 WL 2914103, at *2 (S.D. Ga. Sept. 10, 2009) (quoting 1 C.J.S. Abatement and
Revival § 173 (June 2009); see also Robertson v. Wegmann, 436 U.S. 584, 593–94 (1978)
(applying state survivability law in 42 U.S.C. § 1983 context). Under Georgia law, it appears
Defendant Brewton’s death would not abate Plaintiff’s claims against him. See O.C.G.A. § 9-241; see also Fed. R. Civ. P. 25.
Even though Plaintiff’s claims against Defendant Brewton potentially survive his death,
the Court should grant Defendant Brewton summary judgment. Defendant Brewton did not
move for summary judgment, but that is only because he was never served with Plaintiff’s
Complaint. It is now readily apparent that Defendant Brewton is entitled to summary judgment
for the same reasons Defendants Toole, Thomas, Allen, Register, and Brooks are so entitled.
Thus, the Court should not require the parties to expend the effort and costs of substituting a
party for Defendant Brewton and fully litigating Plaintiff’s claims against Defendant Brewton
only for those claims to be dismissed. The more “just, speedy, and inexpensive” path is to
address the fatal flaws in Plaintiff’s claims against Defendant Brewton at this stage.
As with the other Defendants, there is no evidence that Defendant Brewton violated
Plaintiff’s constitutional rights by failing to intervene in inmate Porter’s attack. The undisputed
evidence before the Court reveals that, even if Defendant Brewton arrived at the scene of inmate
Porter’s attack of Plaintiff—as Plaintiff claims—Defendant Brewton would not have been in a
position to intervene safely. Inmate Porter’s attack on Plaintiff lasted less than a minute, and the
entire incident happened over the course of two and a half minutes’ time. The uncontroverted
video evidence in this case demonstrates that no officer, including Defendant Brewton, was in a
position to safely stop inmate Porter’s attack of Plaintiff. Even if Defendant Brewton was at the
scene of the attack, and thus, was one of the officers in the video, it appears he was not carrying
a weapon which he could have used to intervene in the attack, nor was he wearing any protective
In short, “as a matter of judicial economy”, the Court should find Defendant Brewton is
entitled to summary judgment in his favor and DISMISS Plaintiff’s claims against Defendant
See Waldrop v. Evans, 681 F. Supp. 840, 856 n.10 (M.D. Ga. 1988) (finding
defendant entitled to summary judgment on the merits of plaintiff’s Section 1983 even though
defendant passed away, a suggestion of death was filed, and no motion for substitution was filed
at the time of the court’s determination).
Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. Though Plaintiff
has, of course, not yet filed a notice of appeal, it is proper to address these issues in the Court’s
order of dismissal. See Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of party
proceeding in forma pauperis is not taken in good faith “before or after the notice of appeal is
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(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). Or, 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 Plaintiff’s action, Defendants’ Motion for Summary
Judgment, and counsel’s Suggestion of Death, there are no non-frivolous issues to raise on
appeal, and an appeal would not be taken in good faith. Thus, the Court should DENY Plaintiff
in forma pauperis status on appeal.
Based on the foregoing, I RECOMMEND the Court GRANT in part and DISMISS as
moot in part Defendants’ unopposed Motion and DISMISS Plaintiff’s claims against the
moving Defendants. I also RECOMMEND the Court DISMISS Plaintiff’s claims against
Defendant Brewton. Accordingly, I further RECOMMEND the Court DIRECT the Clerk of
Court to CLOSE this case and DENY Plaintiff in forma pauperis status 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
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 Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon the parties.
SO ORDERED and REPORTED and RECOMMENDED, this 22nd day of February,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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