Porter v. Shumake et al
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court GRANT Defendants' unopposed 55 MOTION for Summary Judgment, DISMISS Plaintiff's 1 Complaint, DIRECT the Clerk to CLOSE this case, and DENY Plaintiff leave to proceed in f orma 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 Recommendation is entered (Objections to R&R due by 5/26/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 5/12/2017. (ca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.: 6:15-cv-113
RONNIE SHUMAKE; and C.O. II SAPP,
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently incarcerated at Georgia State Prison in Reidsville, Georgia
(“GSP”), filed a 42 U.S.C. § 1983 action, alleging that Defendants violated his constitutional
rights. (Doc. 1.) On March 14, 2017, Defendants filed a Motion for Summary Judgment.
(Doc. 55.) The Clerk of Court mailed a Notice to Plaintiff advising him that Defendants filed a
Motion for Summary Judgment and that he must file a response by April 4, 2017. (Docs. 56,
57.) 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.
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.
(Id.) Plaintiff filed no Response to Defendants’ Motion for Summary Judgment, and the Court
received no indication this Notice or Defendants’ Motion was undeliverable. 1 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, the
Court should GRANT Defendants’ unopposed Motion, DISMISS Plaintiff’s Complaint, and
DIRECT the Clerk of Court to CLOSE this case. In addition, the Court should DENY Plaintiff
leave to proceed in forma pauperis on appeal.
On October 28, 2013, two GSP officers, Dashay King and Calem Cambell, escorted
Plaintiff from the shower back to his cell. (Doc. 55-2, p. 2.) After Plaintiff was returned to his
cell, Plaintiff initiated a dispute with Ms. King regarding the return of his personal property.
Plaintiff wanted Ms. King to bring the officer in charge (“OIC”) to his cell so he could ask about
his property. However, Ms. King notified Plaintiff that she would not do so. (Id.)
At this point, an inmate adjacent to Plaintiff’s cell asked Ms. King—who was distributing
breakfast trays—to give him Plaintiff’s tray. Ms. King did so, and after Plaintiff expressed his
displeasure, Ms. King reiterated that she was not going to summon the OIC. (Id.) Ms. King then
twice instructed Plaintiff to remove his arm from the tray flap of his cell door. (Id. at p. 3.)
Plaintiff refused and threw “a liquid substance smelling of urine and feces” at Ms. King from
In fact, Plaintiff has not filed anything in this case since March 6, 2017. (Docs. 50–53.)
inside his cell. (Id. at p. 6; Doc. 55-11, p. 3.) Plaintiff then informed Ms. King that she would
now be forced to summon the OIC. (Id. at p. 3.)
Because Ms. King had been struck by fluids in the face and upper torso, she left the floor
to get decontaminated. Plaintiff then told Defendant Sapp, another officer on the scene, that “he
wanted his property and was ‘ready to go on strip cell.’” (Id.) Defendant Sapp notified Plaintiff
that he was leaving to contact Defendant Shuemake, the OIC that day. (Id. at p. 4.) Shortly
thereafter, Defendant Sapp returned with Defendant Shuemake and several other officers.
Defendant Shuemake instructed Plaintiff to strip his clothing so that he could be taken to the
medical unit. At some point following this instruction, Defendant Shuemake deployed a burst of
pepper spray into Plaintiff’s cell. Defendants then proceeded to escort Plaintiff to the medical
unit for an examination. (Id.)
Nurse Ana Morales evaluated Plaintiff after the event and determined that he was
medically clear and uninjured. Furthermore, during the examination, Plaintiff admitted to Nurse
Morales that he was “not hurt” and that “the only thing that’s going on with [him]” was burning
in the testicles and buttocks. (Id.) (citations omitted). Nurse Morales completed a use of force
assessment indicating that Plaintiff was uninjured by the incident and did not request or require
any follow-up treatment. (Id.)
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., 630 F.3d
1346, 1353 (11th Cir. 2011).
Defendants assert in their Motion that: 1) Plaintiff cannot sustain his Eighth Amendment
claims; 2) the Prison Litigation Reform Act bars Plaintiff’s monetary damages claims because he
did not suffer more than a de minimis injury as a result of Defendants’ actions; and 3)
Defendants are entitled to qualified immunity. (Doc. 55-1, pp. 8–20.) In moving for summary
judgment, Defendants rely on: a Statement of Material Facts; affidavits; Plaintiff’s medical
reports; a copy of the incident report; a copy of the transcript from Plaintiff’s deposition;
Defendants’ objections and response to Plaintiff’s interrogatories; Georgia Department of
Corrections’ policy and procedures; and Plaintiff’s disciplinary reports.
As set forth below, Plaintiff fails to establish a genuine dispute as to his claims, and the
Court should GRANT Defendants’ Motion as a result.
Plaintiff’s Use of Force Claim
Plaintiff’s excessive use of force claim and Defendants’ 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
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)).
Through their supporting materials, Defendants show the following 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.
The Need for the Exercise of Force
Based upon the undisputed facts before the Court, there appears to have been a need for
Defendant Shuemake’s exercise of force. In this case, Plaintiff impermissibly had his arm
outside his cell door and had thrown bodily fluids at Ms. King.
(Doc. 55-11, pp. 3, 6.)
Furthermore, Plaintiff refused two direct commands from Ms. King to remove his arm from the
tray flap. (Doc. 55-11, pp. 2, 9.)
Defendants further state that Plaintiff failed to follow Defendant Shuemake’s direct
command to strip. (Doc. 55-4, p. 4; Doc. 55-6, p. 4.) While Plaintiff alleges in his Complaint
that Defendant Shuemake had sprayed pepper spray on him without any provocation, he provides
no materials to support his account, and he provides no response to Defendants’ account.
Based on Plaintiff’s disciplinary history, (doc. 55-12), and his actions immediately
surrounding this incident, Defendant Shuemake needed to use some measure of force against
Plaintiff in an effort to secure his person and obtain Plaintiff’s compliance—particularly in the
face of Plaintiff’s repeated obstructive behavior.
Thus, this factor weighs in Defendant
Shuemake’s favor. Alday v. Groover, No. CV 212-108, 2014 WL 1320093, at *6 (S.D. Ga. Mar.
31, 2014) (noting that plaintiff failed to follow officer’s lawful commands and that an “official
need not wait until disturbances are dangerous before using force to restore order.”) (citing
Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007)); Bennett v. Parker, 898 F.2d 1530,
1533 (11th Cir. 1990) (“The need for the use of force is established by the undisputed evidence
that [Plaintiff] created a disturbance.”).
The Relationship Between the Need for the use of Force and the Amount
Defendant Shuemake used an appropriate amount of force given that Plaintiff
continuously refused to follow orders, had previously projected bodily fluids onto another
officer, and had a known history of projecting bodily fluids at officers. (Doc. 55-11, pp. 3, 6;
Doc. 55-12.) Given the legitimate concern of maintaining prison security and order, Defendant
Shuemake’s use of pepper spray was warranted. Vinyard v. Wilson, 311 F.3d 1340 (11th Cir.
2002) (use of pepper spray reasonable where plaintiff was refusing police requests); Pearson v.
Taylor, 665 F. App’x 858, 864 (11th Cir. 2016) (“A short burst of pepper spray is not
disproportionate to the need to control an inmate who has failed to obey a jailer’s orders.” (citing
Danley v. Allen, 540 F.3d 1298, 1307–08 (11th Cir. 2008), overruled on other grounds, as
recognized by Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010)) Given the above reasons,
this factor also weighs in Defendants’ 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
The Extent of Plaintiff’s Injuries
The extent of Plaintiff’s injury also weighs in favor of summary judgment. 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.” 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 Shuemake, 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. Plaintiff’s objective medical
documentation indicates that, during the use of force examination, he complained only of a
burning sensation and reddened eyes. (Doc. 55-9, p. 4; Doc. 55-10, pp. 9–10.) Plaintiff did not
complain of any breathing difficulties. (Id.) No treatment was prescribed at the time and no
follow-up was needed. (Doc. 55-10, pp. 9–10.)
While injury and the amount of force are imperfectly correlated, here, the indisputably
minimal injuries that Plaintiff suffered reveal that Defendant Shuemake only applied minimal
force. 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 (ellipsis in original) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)).
Extent of Threat to the Safety of Staff and Other Inmates
Defendant Shuemake acted to maintain security and discipline when he used force.
Plaintiff had a reputation for creating disturbances, and in particular, for throwing bodily fluids
outside of his cell. Defendant Shuemake was attempting to strip Plaintiff and restore prison
order after Plaintiff purposely threw bodily fluids at another officer and refused several direct
commands. Thus, this factor also goes to Defendants’ favor.
Any Efforts Taken to Temper the Severity of the Forceful Response
Given Plaintiff’s injuries resulting from Defendant Shuemake’s use of force, little effort
was needed to mitigate the effects of the force. However, Plaintiff was showered off less than
ten minutes after being sprayed with pepper spray and was transported to the medical unit shortly
thereafter. (Doc. 55-3, pp. 48–49.) Taking into consideration the low severity of Plaintiff’s
injury and the medical care provided, the evidence reveals no impropriety and, therefore, this
factor also falls in Defendants’ favor. Alday, 2014 WL 1320093, at *7.
All of the five factors discussed above weigh in Defendants’ favor. Consequently, the
Court should GRANT this portion of Defendants’ Motion for Summary Judgment.
Plaintiff’s Failure to Intervene Claim
As shown above Plaintiff fails to state an excessive force claim. Therefore, Plaintiff
cannot support his failure to intervene claim against Defendant Sapp. See Priester v. City of
Riviera Beach, 208 F.3d 919, 924 (11th Cir. 2000) (defendant’s liability when he did not
participate in use of excessive force arises only from his failure to intervene); see also Ensley v.
Soper, 142 F.3d, 1407–08 (11th Cir. 1998) (“officer is directly liable” if he “fails or refuses to
intervene when a constitutional violation such as an unprovoked beating takes place in his
presence[.]”) Here, there was no “constitutional violation” for which Defendant Sapp was
obligated to provide intervention.
Thus, the Court should also GRANT this portion of
Defendants’ Motion for Summary Judgment.
Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 2
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
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)).
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[.]”).
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.
§ 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 Defendants’ 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.
For the above stated reasons, I RECOMMEND that the Court GRANT Defendants’
unopposed Motion for Summary Judgment, DISMISS Plaintiff’s Complaint, DIRECT the Clerk
of Court to CLOSE this case, and 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
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 12th day of May,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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