Ashley v. Shumake et al

Filing 36

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court GRANT IN PART AND DENY IN PART Defendants' 23 & 29 MOTION to Dismiss. The Clerk is AUTHORIZED and DIRECTED to change the name of Defendant Ronnie Shumake to Ronnie Shuemake upon the docket and record of this case. 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 8/3/2016). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 7/20/2016. (csr)

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

JUSTIN S. ASHLEY,
Plaintiff,

CIVIL ACTION NO.: 6:15-cv-53

v.
RONNIE SHUEMAKE; CARLTON
MURPHY; and CALO WATKINS, 1
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff is currently incarcerated at Georgia State Prison (“GSP”) in Reidsville, Georgia.
He filed this cause of action pursuant to 42 U.S.C. § 1983, contesting certain conditions of his
confinement at GSP. (Doc. 16.) After the requisite frivolity review, the Court ordered that
Plaintiff’s Complaint be served on Defendant Ronnie Shuemake, a sergeant at GSP, and
Defendants Murphy and Watkins, correctional officers at GSP. (Id.) Defendants filed a Motion
to Dismiss, (doc. 23), but Plaintiff filed a subsequent Amended Complaint, (doc. 27).

In

response, Defendants filed another Motion to Dismiss based on Plaintiff’s failure to exhaust his
available administrative remedies, lack of physical injury, failure to state a claim, and qualified
immunity. (Doc. 29.) For the reasons which follow, I RECOMMEND that the Court GRANT
IN PART AND DENY IN PART Defendants’ Motion to Dismiss. The Court should DENY
Defendants’ Motion to Dismiss as to Plaintiff’s First Amendment retaliation claims, failure to
intervene claims against Defendants Shuemake and Watkins, supervisor liability claim against

1

In their Motion to Dismiss Plaintiff’s Amended Complaint, (doc. 29), Defendant Ronnie Shuemake
corrected his name. Accordingly, the Clerk is AUTHORIZED and DIRECTED to change the name of
Defendant Ronnie Shumake to Ronnie Shuemake upon the docket and record of this case.

Defendant Shuemake, and Defendants’ qualified immunity arguments. Additionally, the Court
should GRANT Defendant’s Motion and DISMISS Plaintiff’s claims as to the Fourteenth
Amendment due process claims, excessive force claims against Defendants Shuemake and
Watkins, failure to intervene claims against Defendant Murphy, and all deliberate indifference
claims. The Court should also DISMISS WITHOUT PREJUDICE Plaintiff’s claims for
compensatory and punitive damages.
BACKGROUND 2
Plaintiff filed his original Complaint against Defendants on May 18, 2015. (Doc. 1.)
Plaintiff’s Amended Complaint—filed on March 18, 2016—seeks to drop all official capacity
claims against Defendants and to add two additional claims, a Fourteenth Amendment Due
Process violation claim and an Eighth Amendment deliberate indifference to medical needs
claim. Both Complaints allege a similar set of facts. On October 1, 2014, Plaintiff spoke to
Warden Toole about the prison denying him access to the law library and legal materials, and the
opportunity to finish a correspondence course for his high school diploma. (Doc. 27, p. 2.) After
getting a dissatisfactory response from Warden Toole, Plaintiff started to voice his complaints
through his cell door. Plaintiff contends at this point that Defendant Watkins stated on camera
that “‘force would be used’ because he had asked the Plaintiff to ‘cuff up twice,’” when he
allegedly never told the Plaintiff to cuff up at all. (Id. at p. 3.) Defendant Murphy then opened
Plaintiff’s tray flap and sprayed Plaintiff with pepper spray.

(Id.)

Plaintiff contends that

Defendants did not allow him to sufficiently wash the spray off before placing him back in his
cell—which had not been cleaned of pepper spray residue. (Id. at p. 8.) Plaintiff states that the

2

The Court takes the following facts from Plaintiff’s Complaint and assumes them to be true, as it must
at this stage.

2

spray and spray residue caused his lungs, skin, and chest to burn, and that he was in
“excruciating agony and pain for 10 to 15 minutes.” (Id. at p. 9.)
DISCUSSION
I.

Whether Plaintiff Failed to Exhaust his Administrative Remedies as to his First
Amendment Retaliation Claims
Defendants argue that Plaintiff’s First Amendment retaliation claims should fail because

Plaintiff did not appropriately exhaust the administrative remedies available to him. Where
Congress explicitly mandates, prisoners seeking relief for alleged constitutional violations must
first exhaust inmate grievance procedures before filing suit in federal court. See Porter v.
Nussle, 534 U.S. 516, 524 (2002). Section 1997e(a) of Title 42 of the United States Code states,
“No action shall be brought with respect to prison conditions under section 1983 of this title, or
any other Federal law . . . until such administrative remedies as are available are exhausted.”
In Porter, the United States Supreme Court held that exhaustion of available administrative
remedies is mandatory. Porter, 534 U.S. at 523; see also O’Brien v. United States, 137 F. App’x
295, 301–02 (11th Cir. 2005) (finding lack of exhaustion where prisoner “prematurely filed his
civil complaint . . . and . . . ‘failed to heed that clear statutory command’ requiring that his
administrative remedies be exhausted before bringing suit”). Additionally, the Supreme Court
recently “held that the PLRA’s [Prison Litigation Reform Act’s] text suggests no limits on an
inmate’s obligation to exhaust—irrespective of any ‘special circumstances.’ And that mandatory
language means a court may not excuse a failure to exhaust, even to take such circumstances into
account.” Ross v. Blake, ___ U.S. ___, 2016 WL 3128839, at *5 (June 6, 2016).
The requirement that the exhaustion of remedies occur “first in an agency setting allows
‘the agency [to] develop the necessary factual background upon which decisions should be
based’ and giv[es] ‘the agency a chance to discover and correct its own errors.’” Green v. Sec’y

3

for Dep’t of Corr., 212 F. App’x 869, 871 (11th Cir. 2006) (quoting Alexander v. Hawk, 159
F.3d 1321, 1327 (11th Cir. 1998) (first alteration in original)).

Furthermore, requiring

exhaustion in the prison setting “eliminate[s] unwarranted federal-court interference with the
administration of prisons” and allows “corrections officials time and opportunity to address
complaints internally before allowing the initiation of a federal case.” Woodford v. Ngo, 548
U.S. 81, 93 (2006).
A.

Standard of Review

The determination of whether an inmate exhausted his available administrative remedies
prior to filing a cause of action in federal court is a matter of abatement and should be raised in a
motion to dismiss. Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008). “Because exhaustion
of administrative remedies is a matter in abatement and not generally an adjudication on the
merits, an exhaustion defense . . . is not ordinarily the proper subject for a summary judgment;
instead, it should be raised in a motion to dismiss, or be treated as such if raised in a motion for
summary judgment.” Id. at 1374–75 (internal citation omitted). “Even though a failure-toexhaust defense is non-jurisdictional, it is like” a jurisdictional defense because such a
determination “ordinarily does not deal with the merits” of a particular cause of action. Id. at
1374 (internal punctuation and citation omitted).

Further, a judge “may resolve factual

questions” in instances where exhaustion of administrative remedies is a defense before the
court. Id. In these instances, “it is proper for a judge to consider facts outside of the pleadings
and to resolve factual disputes so long as the factual disputes do not decide the merits and the
parties have sufficient opportunity to develop a record.” Id. at 1376.
In Turner v. Burnside, 541 F.3d 1079 (11th Cir. 2008), the Eleventh Circuit set forth a
“two-step process” that lower courts must employ when examining the issue of exhaustion of

4

administrative remedies. First, the court is to take the plaintiff’s version of the facts regarding
exhaustion as true. Id. at 1082. If, even under the plaintiff’s version of the facts, the plaintiff has
not exhausted, the complaint must be dismissed. Id. However, if the parties’ conflicting facts
leave a dispute as to whether plaintiff has exhausted, the court need not accept all of plaintiff’s
facts as true. Id. Rather, “the court then proceeds to make specific findings in order to resolve
the disputed factual issues[.]” Id. “Once the court makes findings on the disputed issues of fact,
it then decides whether under those findings the prisoner has exhausted his available
administrative remedies.” Id. at 1083. However, it is the defendant’s burden to prove that the
plaintiff has failed to exhaust his available administrative remedies. Id. The Eleventh Circuit
has held that a district court may consider materials outside of the pleadings and resolve factual
disputes regarding exhaustion in conjunction with a Rule 12(b)(6) motion to dismiss so long as
the factual disputes do not decide the merits of the case. See Bryant, 530 F.3d at 1376–77.
B.

Assessment of Plaintiff’s Exhaustion

At this stage, Defendants have not satisfied the Turner two-step test for dismissal based
on failure to exhaust. Defendants argue that Plaintiff failed to exhaust and “did not allow the
Georgia Department of Corrections to address his First Amendment retaliation claims prior to
filing suit,” because “[n]owhere in the grievance did Plaintiff assert that force was used in
retaliation for Plaintiff’s voicing complaints concerning the conditions of his confinement.”
(Doc. 23-1, pp. 7–8.) However, Plaintiff clearly states in his prison grievance filed on October 2,
2014, that “after exercising [his] First Amendment rights to ‘Freedom of Speech’ from behind a
locked and secured cell door,” Defendants opened his tray flap and then sprayed him with “an
extended burst/s of O.C.” (Doc. 23-2, p. 29). As is, the record currently reads that after Plaintiff
made some form of speech, Defendants, seemingly without provocation, began to use excessive

5

force on Plaintiff—which Plaintiff does appropriately complain about in his grievance.
Although Plaintiff’s statement about exercising his First Amendment rights may seem
conclusory, he met the specificity requirements laid out by GSP. Plaintiff appropriately included
the “dates, names of persons involved, and witnesses.” (Id.) Furthermore, the Eleventh Circuit
has held that “[t]he exhaustion requirement, allowing prison officials to address complaints in the
first instance, is satisfied as long as the inmate’s grievance provides sufficient detail to allow
prison officials to investigate the alleged incident.” Maldonado v. Unnamed Defendant, No. 1510867, 2016 WL 1637981, at *11 (11th Cir. Apr. 26, 2016). Therefore, the Court should DENY
this portion of Defendant’s Motion to Dismiss.
II.

Whether Plaintiff May Recover Punitive and Compensatory Damages
Defendants argue that the minimal nature of Plaintiff’s alleged injuries prevents him from

recovering punitive or compensatory damages. “No Federal civil action may be brought by a
prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e).
The purpose of this statute is “to reduce the number of frivolous cases filed by imprisoned
plaintiffs, who have little to lose and excessive amounts of free time with which to pursue their
complaints.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (citing Harris v. Garner,
216 F.3d 970, 976–79 (11th Cir. 2000)). “Tracking the language of [this] statute, § 1997e(e)
applies only to lawsuits involving (1) Federal civil actions (2) brought by a prisoner (3) for
mental or emotional injury (4) suffered while in custody.” Id. at 532.
In Williams v. Brown, 347 F. App’x 429, 436 (11th Cir. 2009), the Eleventh Circuit
stated that, “compensatory damages under § 1983 may be awarded only based on actual injuries
caused by the defendant and cannot be presumed or based on the abstract value of the
constitutional rights that the defendant violated. Pursuant to 42 U.S.C. § 1997e(e), in order to
6

recover for mental or emotional injury suffered while in custody, a prisoner bringing a § 1983
action must demonstrate more than a de minim[i]s physical injury.” (internal citations omitted)
(alterations in original). Consequently, a prisoner who has not suffered more than de minimis
physical injury cannot recover compensatory or punitive damages. Al-Amin v. Smith, 637 F.3d
1192, 1199 (11th Cir. 2011) (“In sum, our published precedents have affirmed district court
dismissals of punitive damage claims under the PLRA because the plaintiffs failed to meet §
1997e(e)’s physical injury requirement.”); Smith v. Allen, 502 F.3d 1255, 1271 (11th Cir. 2007)
(“Plaintiff seeks nominal, compensatory, and punitive damages. It is clear from our case law,
however, that the latter two types of damages are precluded under the PLRA.”), abrogated on
other grounds by Sossamon v. Texas, 563 U.S. 277 (2011). “In order to avoid dismissal under §
1997e(e), a prisoner’s claims for emotional or mental injury must be accompanied by allegations
of physical injuries that are greater than de minimis.” Mitchell v. Brown & Williamson Tobacco
Corp., 294 F.3d 1309, 1312–13 (11th Cir. 2002). “The meaning of the phrase ‘greater than de
minimis,’ however, is far from clear.” Chatham v. Adcock, 334 F. App’x 281, 284 (11th Cir.
2009).
The Eleventh Circuit has held that courts should dismiss an inmate’s punitive and
compensatory damages claims under Section 1997e(e) without prejudice to allow an inmate to
refile his claims when and if he is released. Harris v. Garner, 216 F.3d 970, 980 (11th Cir.
2004). Additionally, “[n]ominal damages are appropriate if a plaintiff establishes a violation of a
fundamental constitutional right, even if he cannot prove actual injury sufficient to entitle him to
compensatory damages.” Williams, 347 F. App’x at 436 (quoting Hughes v. Lott, 350 F.3d
1157, 1162 (11th Cir. 2003)). “Thus, a prayer for nominal damages is not precluded by §
1997e(e).” Id. (quoting Smith v. Allen, 502 F.3d at 1271; see also Smith v. Barrow, No. CV

7

311-044, 2012 WL 6519541, at *5 (S.D. Ga. Nov. 9, 2012), report and recommendation
adopted, No. CV 311-044, 2012 WL 6522020 (S.D. Ga. Dec. 13, 2012) (“Nominal damages are
available for violations of the First Amendment.”)).
In this case, Plaintiff alleges the typical effects associated with pepper spray.

He

contends that he had trouble breathing, burning in his lungs, skin, and chest. Plaintiff states in
both his Complaint and Objection that he was in “excruciating agony and pain for 10 to 15
minutes then again experienced a lower level of pain . . . for an indeterminate amount of time.”
(Doc. 27, p. 9; Doc. 32, p. 18.) However, several courts have held that such conditions do not
satisfy Section 1997e(e)’s physical injury requirement. See, e.g., Jennings v. Mitchell, 93 F.
App’x 723, 725 (6th Cir. 2004) (finding that prisoner who suffered the discomfort of pepper
spray had shown only de minimis injury, insufficient to satisfy § 1997e(e)); Wilkerson v. Bryson,
No. 6:16-CV-4, 2016 WL 796127, at *7 (S.D. Ga. Feb. 29, 2016), report and recommendation
adopted, No. 6:16-CV-4, 2016 WL 1258959 (S.D. Ga. Mar. 28, 2016) (dismissal of
compensatory and punitive damages claims based on injuries from pepper spray under Section
1997e(e)); Kirkland v. Everglades Corr. Inst., No. 12-22302-CIV, 2014 WL 1333212, at *6 (S.D.
Fla. Mar. 31, 2014) (“If [plaintiff] experienced temporary chemical burns and minor respiratory
problems from exposure to a chemical agent, he then sustained only minor, physical injuries
from the chemical spray.”); Gardner v. Cty. of Baldwin, No. CIV.A. 12-0281-CG-C, 2014 WL
171839, at *13 (S.D. Ala. Jan. 15, 2014) (“[P]laintiff’s injuries appear to be the typical physical
response to being sprayed with pepper spray.”); Thompson v. Quinn, No. 3:11cv533/RV/EMT,
2013 WL 2151715, at *12 (N.D. Fla. May 16, 2013) (prisoner failed to show more than a de
minimis physical injury resulting from officer’s use of chemical agent where only allegation of
physical

injury was

burning sensation

on

8

his

body);

Robinson

v.

Tifft,

No.

3:11cv560/LAC/CJK, 2012 WL 2675467, at *2 (N.D. Fla. June 1, 2012) (prisoner failed to show
more than a de minimis physical injury resulting from officer’s use of chemical agent where he
alleged he suffered “involuntary closing and burning sensation” in his eyes and was temporarily
blinded); Kornagay v. Burt, No. 3:09cv281/LAC/EMT, 2011 WL 839496 (N.D. Fla. Feb. 8,
2011) (prisoner failed to show more than a de minimis physical injury resulting from officer’s
use of chemical agent where prisoner alleged he suffered burning lungs and skin, congested
breathing, tearing eyes, nasal discharge, dizziness, the sensation of respiratory distress, choking,
and burns to his scalp); see also Quinlan v. Personal Trans. Servs. Co., 329 F. App’x 246, 249
(11th Cir. 2009) (unpublished) (pretrial detainee’s complaints of a headache for several hours
after being denied use of his asthma inhaler, difficulty breathing, temporary chest pain, and
lingering back pain that caused him to walk hunched over, which resulted from him being
transported in a smoked-filled van while handcuffed, were not greater than de minimis and
therefore did not provide the necessary physical injury to recover for mental and emotional
injuries). In line with these cases, the injuries that Plaintiff suffered do not pass the PLRA’s bar
for compensatory and punitive damages.
Plaintiff has not alleged that he suffered more than a de minimis physical injury due to
Defendants’ alleged constitutional violations.

Accordingly, the Court should GRANT this

portion of Defendants’ Motion and DISMISS Plaintiff’s claims for compensatory and punitive
damages without prejudice pursuant to 42 U.S.C. § 1997e(e). However, Section 1997e(e) does
not bar Plaintiff’s claims for nominal damages.

9

III.

Whether Plaintiff States Plausible Claims for Relief Against Defendants
A.

Standard of Review

When ruling on a Rule 12(b)(6) motion to dismiss, the Court must “accept[ ] the
allegations in the complaint as true and constru[e] them in the light most favorable to the
plaintiff.” Belanger v. Salvation Army, 556 F.3d 1153, 1155 (11th Cir. 2009). “A complaint
must state a facially plausible claim for relief, and ‘[a] claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Wooten v. Quicken Loans, Inc., 626 F.3d 1187,
1196 (11th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A pleading that
offers labels and conclusions or a formulaic recitation of the elements of a cause of action” does
not suffice. Iqbal, 556 U.S. at 678.
“The plausibility standard is not akin to a probability requirement, but it asks for more
than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts
that are merely consistent with a defendant’s liability, it stops short of the line between
possibility and plausibility of entitlement to relief.”

Id. (internal punctuation and citation

omitted). While a court must accept all factual allegations in a complaint as true, this tenet “is
inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements,” are insufficient. Id.
B.

Whether Plaintiff States a First Amendment Retaliation Claim

Plaintiff has alleged enough in his complaint to assert a First Amendment retaliation
claim. Defendants state that Plaintiff “has not pled non-conclusory factual allegations plausibly
suggesting the Defendants retaliated against him in violation of his First Amendment rights.”
(Doc. 23-1, p. 11.) However, at the pleading stage, Plaintiff is only required to provide a “short

10

and plain statement of the claim . . . .” Fed. R. Civ. P. 10. He must provide “sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S.
at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). He must assert “more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action will
not” suffice. Twombly, 550 U.S. at 555. Plaintiff has more than done that in his Complaint. He
alleges that Defendants retaliated against him after he complained about not being able to
complete his correspondence course and his inability to keep law books in his cell. Although
Defendants argue that Plaintiff makes no specific allegations against Defendants Watkins and
Shuemake, Plaintiff’s Amended Complaint alleges enough to indicate that both parties assisted
in recording the use of force, taking Plaintiff out of the cell, and in providing an incomplete
decontamination in response to Plaintiff exercising his First Amendment rights. (Doc. 27, p. 11.)
Therefore, the Court should DENY this portion of Defendant’s Motion to Dismiss.
C.

Whether Plaintiff States a Fourteenth Amendment Due Process Claim

Plaintiff did not previously allege a Fourteenth Amendment Due Process violation, but
does so in his Amended Complaint.

However, as Defendants argue, Plaintiff only makes

conclusory assertions that Defendants violated his Due Process Clause protections against
deprivations of life, liberty, or property without due process of law. (Doc. 23-1, pp. 13–14.)
Plaintiff simply states in his Complaint, “Defendant Shumake [sic] also violated Plaintiff’s
Fourteenth Amendment Rights under ‘Due Process.’” (Doc. 27, p. 13.) However, he provides
no facts regarding the deprivation of any protected liberty or property interest without due
process of law. The Court should GRANT this portion of Defendant’s Motion and DISMISS
Plaintiff’s Fourteenth Amendment Due Process claims.
D.

Whether Plaintiff States an Excessive Force Claim Against Defendants
Watkins and Shuemake

11

Defendants argue that Plaintiff’s excessive force claims as to Defendants Watkins and
Shuemake are invalid because Plaintiff “has not asserted any factual allegations demonstrating
that Defendant Watkins and Shuemake used any form of physical force against him, much less
that they used excessive force.” (Doc. 29-1, p. 13.) Plaintiff’s Complaint only indicates that
Defendant Murphy was the person who sprayed Plaintiff with the pepper spray. “In a § 1983 suit
. . . each Government official . . . is only liable for his or her own misconduct.” Iqbal, 556 U.S.
at 678.

Although Plaintiff states that Defendants were working in concert, he makes no

allegations that Defendants Watkins or Shuemake used excessive force on him during the
incident.

Accordingly, the Court should GRANT this portion of Defendants’ Motion and

DISMISS Plaintiff’s Eighth Amendment excessive force claims against Defendants Watkins and
Shuemake.
E.

Whether Plaintiff States a Failure to Intervene Claim

Defendants correctly argue that Plaintiff fails to allege facts supporting a failure to
intervene claim against Defendant Murphy. (Doc. 23-1, p. 14; Doc. 34, p. 13.) Plaintiff’s main
allegations against Defendant Murphy are for his use of excessive force with the pepper spray.
He makes no allegations that Defendant Murphy witnessed any other officer using excessive
force against Plaintiff and that he was in a position to intervene, but failed to do so. As such,
Plaintiff’s failure to intervene claim against Defendant Murphy should not survive Defendants’
Motion to Dismiss.
However, Plaintiff’s failure to intervene claims against Defendants Shuemake and
Watkins can proceed. At the 12(b)(6) motion to dismiss stage, a plaintiff need only allege
enough facts “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
Furthermore, the Court must “accept[ ] the allegations in the complaint as true and constru[e]

12

them in the light most favorable to the plaintiff.” Belanger, 556 F.3d at 1155. Although
Plaintiff’s Amended Complaint does not state exactly where Defendants were standing, he
indicates that they knew of the use of force and were close enough to assist with stripping him
down and taking him out of his cell afterwards. At this stage, taking Plaintiff’s pleading as true,
Defendants Watkins and Shuemake were allegedly in a position to intervene during Defendant
Murphy’s use of force.
Based on the reasons above, the Court should GRANT Defendants’ Motion as applied to
Defendant Murphy and DISMISS Defendant Murphy’s failure to intervene claim. However, the
Court should DENY Defendants’ Motion as applied to Defendants Watkins and Shuemake.
F.

Whether Plaintiff States a Supervisory Liability Claim Against Defendant
Shuemake

Again, using the 12(b)(6) motion to dismiss standard, Plaintiff need only allege facts that
provide a plausible claim for relief. Wooten, 626 F.3d at 1196 (11th Cir. 2010). Although
Defendants assert that Plaintiff only makes conclusory statements about Defendant Shuemake’s
supervisory liability, Plaintiff actually alleges enough facts to pass the plausibility bar required
for pleadings. Plaintiff does not solely allege that Defendant Shuemake is liable based on a
theory of respondeat superior; instead, Plaintiff alleges facts that Defendant Shuemake was
involved in and in a position to control the alleged use of excessive force. Gilmere v. City of
Atlanta, 774 F.2d 1495, 1504 (11th Cir. 1985). The Court should DENY this portion of
Defendant’s Motion.
G.

Whether Plaintiff States an Eighth Amendment Deliberate Indifference
Claim

Plaintiff alleges in his Amended Complaint that Defendants were deliberately indifferent
to his medical needs after spraying him with pepper spray. In order to prove a deliberate
indifference claim, a detainee must overcome three obstacles. The detainee must: 1) “satisfy the
13

objective component by showing that [he] had a serious medical need;” 2) “satisfy the subjective
component by showing that the prison official acted with deliberate indifference to [his] serious
medical need;” and 3) “show that the injury was caused by the defendant’s wrongful
conduct.” Goebert v. Lee Cty., 510 F.3d 1312, 1326 (11th Cir. 2007). A medical need is serious
if it “‘has been diagnosed by a physician as mandating treatment or [is] one that is so obvious
that even a lay person would easily recognize the necessity for a doctor’s attention.’” Id.
(quoting Hill v. DeKalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994)) (emphasis
supplied).
As for the subjective component, the Eleventh Circuit has consistently required that “a
defendant know of and disregard an excessive risk to an inmate’s health and safety.” Haney v.
City of Cumming, 69 F.3d 1098, 1102 (11th Cir. 1995). Under the subjective prong, an inmate
“must prove three things: (1) subjective knowledge of a risk of serious harm; (2) disregard of that
risk; (3) by conduct that is more than [gross] negligence.” Goebert, 510 F.3d at 1327. “The
meaning of ‘more than gross negligence’ is not self-evident[.]” Id. In instances where a
deliberate indifference claim turns on a delay in treatment rather than the type of medical care
received, the factors considered are: “(1) the seriousness of the medical need; (2) whether the
delay worsened the medical condition; and (3) the reason for the delay.” Id.
Defendant argues that the normal and transitory effects of pepper spray do not constitute
a serious medical need. (Doc. 23-1, p. 20). However, the Eleventh Circuit has held that “the
effects of prolonged exposure to pepper spray with inadequate decontamination and poor
ventilation” can be considered deliberate indifference to a serious medical need. Danley v.
Allen, 540 F.3d 1298, 1311 (11th Cir. 2008), overruled on other grounds by Iqbal, 556 U.S. 662.
Unlike the Plaintiff in Danley though, the Plaintiff here did not indicate that the spray residue

14

was so strong other prisoners were affected, that he was in excruciating pain and had trouble
breathing for over 12 hours, or that he “almost blacked out because of the breathing difficulties
he had been having for the prior twelve-plus hours.” (Id. at 1304). In fact, Plaintiff gives no
indication that the effects were anything other than transitory. (Doc. 27, p. 9). Although
Plaintiff states that he suffered “excruciating” pain, he then says that after ten to fifteen minutes
he experienced a “lower level of pain.” (Id.) Additionally, Plaintiff states that he was able to
breathe more easily after simply burping. (Id.) Thus, in contrast to the situation described
in Danley, Plaintiff has not plausibly alleged that he had a serious medical need. Consequently,
he fails to establish a basic element of his deliberate indifference claim. For these reasons, the
Court should GRANT Defendants’ Motion and DISMISS any claims regarding deliberate
indifference to Plaintiff’s medical needs.
IV.

Whether Defendants are Entitled to Qualified Immunity
Defendants invoke the doctrine of qualified immunity in their Motion to Dismiss. (Doc.

23-1, pp. 23–24.) Qualified immunity shields “government officials performing discretionary
functions . . . from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Lee v. Ferraro, 284 F.3d
1188, 1193–94 (11th Cir. 2002). “The purpose of this immunity is to allow government officials
to carry out their discretionary duties without the fear of personal liability or harassing
litigation[.]” Id. at 1194. “Qualified immunity should be applied at the earliest possible stage of
litigation, and it is therefore appropriate to decide its applicability on a motion to dismiss. Often
however, this is not possible, and for this reason it is more typically addressed at summary
judgment.” Horn v. Jones, No. 14-20341-CIV, 2015 WL 3607012, at *6 (S.D. Fla. May 8,

15

2015); see also Marshall v. Fla. Dep’t of Corr., No. 10–20101–cv, 2011 WL 1303213, at *4
(S.D. Fla. March 31, 2011) (“[W]here it is not evident from the allegations of the complaint
alone that a defendant is entitled to qualified immunity, the case will proceed to the summary
judgment stage, the most typical juncture at which defendants entitled to qualified immunity are
released from the threat of liability and the burden of further litigation.”) (emphasis in original)
(citation omitted).
To receive qualified immunity, Defendants must first establish that they were acting
within their discretionary authority during the events in question. Cottone v. Jenne, 326 F.3d
1352, 1357 (11th Cir. 2003).

“A government official acts within his or her discretionary

authority if objective circumstances compel the conclusion that challenged actions occurred in
the performance of the official’s duties and within the scope of this authority.” Hill, 40 F.3d at
1185 n.17. Once the government official has shown that he was acting within his discretionary
authority, the burden shifts to the plaintiff to show that the defendant is not entitled to qualified
immunity. Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003) (citing Vinyard v. Wilson,
311 F.3d 1340, 1346 (11th Cir. 2002)). Here, Defendants were acting within their respective
discretionary duties as correctional officers when making decisions relevant to Plaintiff’s claims.
Thus, the burden shifts to Plaintiff to show that Defendants are not entitled to qualified
immunity. Cottone, 326 F.3d at 1358. To make this showing, Plaintiff must first establish the
violation of a constitutional right on the facts alleged. Saucier v. Katz, 533 U.S. 194, 200
(2001); Gilmore v. Hodges, 738 F.3d 266, 272 (11th Cir. 2013). As explained in Section III
above, Plaintiff has alleged conduct by Defendants that, if proven true, plausibly establishes a
violation of Plaintiff’s Eighth Amendment and First Amendment rights. Consequently, his
Complaint satisfies the first qualified immunity prong.

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Having alleged a constitutional violation, Plaintiff must demonstrate that the
constitutional right was clearly established at the time of the alleged misconduct. Saucier, 533
U.S. at 200. 3

“The relevant, dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.” Id. at 202; Wilson v. Layne, 526 U.S. 603, 615 (1999). “The ‘very
action in question’ does not have to have been previously held unlawful, but the unlawfulness of
the conduct must be apparent in light of pre-existing law.” Harris v. Coweta Cty., 21 F.3d 388,
393 (11th Cir. 1994) (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Moreover, in the
Eleventh Circuit, “a defense of qualified immunity is not available in cases alleging excessive
force in violation of the Eighth Amendment, because the use of force ‘maliciously and
sadistically to cause harm’ is clearly established to be a violation of the Constitution by the
Supreme Court . . . . There is simply no room for a qualified immunity defense when the
plaintiff alleges such a violation.” Skrtich, 280 F.3d at 1301 (citing Johnson v. Breeden, 280
F.3d 1308 (11th Cir. 2002)). Likewise, a reasonable correctional officer would know that he
violates an inmate’s rights when he fails to intervene during a fellow officers’ use of excessive
force against the inmate. See Priester v. City of Riviera Beach, 208 F.3d 919, 924 (11th Cir.
2000) (“[I]f a police officer, whether supervisory or not, fails or refuses to intervene when a
constitutional violation such as an unprovoked beating takes place in his presence, the officer is
directly liable[.]” (alterations in original)) (citing Ensley v. Soper, 142 F.3d 1402, 1407–08 (11th
Cir. 1998)). Similarly, the Eleventh Circuit has held that prison officials are not entitled to
qualified immunity for First Amendment retaliation claims. See Hicks v. Ferrero, 241 F. App’x

3

The Supreme Court has clarified, however, that courts need not analyze these qualified immunity steps
sequentially. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).

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595, 598 (11th Cir. 2007) (prison officials receive no qualified immunity after retaliating against
a prisoner for exercising his First Amendment free speech rights).
The Court is not concluding today that Defendants did in fact retaliate against Plaintiff
for exercising his First Amendment rights, or that Defendant Murphy used unjustified force
while Defendants Shuemake and Watkins failed to intervene during that alleged use of force. On
the record before the Court, we cannot know. However, if the Court accepts Plaintiff’s factual
allegations as true, as it must, then the actions that Defendants allegedly took were, “in the light
of

the

preexisting

law—beyond

what

the

Constitution

would

allow

under

the

circumstances.” Pourmoghani–Esfahani v. Gee, 625 F.3d 1313, 1317 (11th Cir. 2010). For
these reasons, the Court should DENY this portion of Defendants’ Motion.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court GRANT IN PART AND
DENY IN PART Defendants’ Motion to Dismiss.

The Court should DENY Defendants’

Motion to Dismiss as to Plaintiff’s First Amendment retaliation claims, failure to intervene
claims against Defendants Shuemake and Watkins, supervisor liability claim against Defendant
Shuemake, and Defendants’ qualified immunity arguments.

However, the Court should

GRANT Defendants’ Motion and DISMISS Plaintiff’s claims as to the Fourteenth Amendment
due process claims, excessive force claims against Defendants Shuemake and Watkins, failure to
intervene claims against Defendant Murphy, and all deliberate indifference claims. The Court
should also DISMISS WITHOUT PREJUDICE Plaintiff’s claims for compensatory and
punitive damages.
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 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 20th day of July, 2016.

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

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