WILBANKS v. SIMMONS
Filing
29
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 08/08/2014, that Plaintiff's Motion for Leave to Amend Complaint (Docket Entry 25 ) is DENIED. FURTHER that Defendant's Motion for Summary Judgment (Docket Entry 20 ) is DEFERRED. FURTHER that Plaintiff shall have until September 5, 2014, to file a valid affidavit. The Clerk shall refer this case back to the undersigned for further action after that date.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DANIEL EARL WILBANKS,
Plaintiff,
v.
C/O ROBBIE SIMMONS,
Defendant.
)
)
)
)
)
)
)
)
)
1:13CV167
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion for
Summary Judgment (Docket Entry 20) and Plaintiff’s Motion for Leave
to Amend Complaint (Docket Entry 25). For the reasons that follow,
the Court will deny Plaintiff’s instant Motion and will defer
action on Defendant’s instant Motion.1
1
For reasons stated in Deberry v. Davis, No. 1:08CV582,
2010 WL 1610430, at *7 n.8 (M.D.N.C. Apr. 19, 2010) (unpublished),
the undersigned Magistrate Judge will enter an order, rather than
a recommendation, as to Plaintiff’s instant Motion.
See also
Everett v. Prison Health Servs., 412 Fed. Appx. 604, 605 & n.2 (4th
Cir. 2011) (“Everett moved for leave to amend her complaint . . .
to add Appellee Prison Health Services, Inc. (‘PHS’) as a defendant
based on information obtained during discovery, and to add a
state-law claim of medical malpractice against PHS.
After a
hearing, the magistrate judge denied Everett’s motion. Everett
timely objected, thereby preserving the issue for review by the
district court. . . . [T]he district court could not modify or set
aside any portion of the magistrate judge’s order unless the
magistrate judge’s decision was ‘clearly erroneous or contrary to
law.’ Fed. R. Civ. P. 72(a); 28 U.S.C.A. § 636(b)(1)(A) (2006 &
Supp. 2010).”).
I.
Motion to Amend
Given the procedural posture of this case, Plaintiff may
“amend [his] pleading only with [Defendant’s] written consent or
the [C]ourt’s leave.”
Fed. R. Civ. P. 15(a)(2).
The applicable
Rule further directs that “[t]he [C]ourt should freely give leave
when justice so requires.” Id.
Under this standard, the Court has
some discretion, “but outright refusal to grant the leave without
any justifying reason appearing for the denial is not an exercise
of discretion . . . .”
Foman v. Davis, 371 U.S. 178, 182 (1962).
Reasons to deny leave to amend a pleading include “undue delay, bad
faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the
amendment, [and] futility of amendment,” id.; accord Equal Rights
Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010) (“A
district court may deny a motion to amend when the amendment would
be prejudicial to the opposing party, the moving party has acted in
bad faith, or the amendment would be futile.”).
“An amendment would be futile if the amended claim would fail
to survive a motion to dismiss for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6).”
Syngenta
Crop Prot., Inc. v. EPA, 222 F.R.D. 271, 278 (M.D.N.C. 2004).
A
plaintiff fails to state a claim when the complaint does not
“contain sufficient factual matter, accepted as true, to ‘state a
-2-
claim to relief that is plausible on its face.’”
Iqbal,
556
U.S.
662,
678
(2009)
(emphasis
Ashcroft v.
added)
(internal
citations omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the
line
between
relief.”’”
possibility
and
plausibility
of
“entitlement
Id. (quoting Twombly, 550 U.S. at 557).
to
This standard
“demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”
Id.
In other words, “the tenet that a court must
accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.
Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.”
Id.2
Plaintiff’s instant Motion simply asks that the Court allow
him to “add the argument/claim of ‘deliberate indifference’” to his
Complaint.
(Docket
Entry
25
at
1.)
In
support,
Plaintiff
explains:
In Plaintiff’s Response in opposition to [D]efendant’s
Motion for Summary Judgment Plaintiff argues the
[D]efendant’s culpable state of mind “deliberate
indifference” standard for Eighth Amendment evaluations
subjective component under Hudson (see Plaintiff’s
attached Brief/Memorandum of Law in Opposition to
Defendant’s Motion for Summary Judgment).
2
“[D]etermining whether a complaint states on its face a
plausible claim for relief and therefore can survive a Rule
12(b)(6) motion . . . requires the reviewing court to draw on its
judicial experience and common sense.” Francis v. Giacomelli, 588
F.3d 186, 193 (4th Cir. 2009).
-3-
(Id. (emphasis in original).)
few
conclusory
legal
However, “[t]he presence . . . of a
terms
[like
deliberate
indifference,
malicious, outrageous, and wanton] does not insulate a complaint
from dismissal under Rule 12(b)(6) when the facts alleged in the
complaint cannot support a finding of deliberate indifference.”
Young v. City of Mt. Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
In the instant case, the Complaint alleges that Defendant,
without provocation, “struck [Plaintiff] in the groin area with his
billystick
&
laughed
out
loud.”
(Docket
Entry
1
at
3.)
Plaintiff’s Complaint thus asserts a claim for excessive force (see
id.), which requires a showing that the defendant applied force
“maliciously and sadistically for the very purpose of causing
harm,” Hudson v. McMillian, 503 U.S. 1, 6 (1992).
The allegations
in Plaintiff’s Complaint sufficiently indicate that Defendant acted
with the requisite state of mind.
Adding language referencing
“deliberate indifference,” particularly without any additional
factual allegations, would not affect the legal sufficiency of the
Complaint.
In other words, Plaintiff’s proposed addition of
conclusory allegations of deliberate indifference would not state
a new claim or bolster an existing claim. See Annan v. Zaborowski,
No. 12 C 3577, 2013 WL 3771248, at *2 (N.D. Ill. July 16, 2013)
(unpublished) (“[The plaintiff] merely recasts his adequately
stated claim for excessive force as an additional claim for
deliberate indifference to a medical need. Namely, he alleges that
-4-
[the]
[d]efendant
[]
‘manhandled’
his
groin
.
.
.
.
This
‘manhandling,’ according to [the plaintiff], constitutes not only
excessive force but also deliberate indifference to his medical
needs
because
manhandled.
he
had
a
medical
need
not
to
have
his
groin
However, a need to be free from manhandling is not a
serious medical need.
If it were, any claim for excessive force
would also constitute an actionable deliberate indifference to
medical need claim.
This is not the case.”).
Given these considerations, the Court will deny Plaintiff’s
instant Motion as futile.
II.
Motion for Summary Judgment
“The [C]ourt shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).
Fed. R. Civ.
Such a genuine dispute exists if the evidence presented
could lead a reasonable factfinder to return a verdict in favor of
the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In making this determination, the Court must view
the evidence and any reasonable inferences therefrom in a light
most favorable to the non-moving party.
Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The party moving for summary judgment may discharge its burden
by identifying an absence of evidence to support the non-moving
party’s case.
See Celotex Corp. v. Catrett, 477 U.S. 317, 325
-5-
(1986).
The non-moving party then must “set forth specific facts
showing that there is a genuine issue for trial.” Matsushita Elec.
Indus.,
475
original).
U.S.
at
586-87
(citation
omitted)
(emphasis
in
In this regard, the non-moving party must convince the
Court that evidence exists upon which a finder of fact could
properly return a verdict in favor of the non-moving party.
Anderson, 477 U.S. at 252; see also Francis v. Booz, Allen &
Hamilton,
Inc.,
452
F.3d
299,
308
(4th
Cir.
2006)
(“Mere
unsupported speculation is not sufficient to defeat a summary
judgment motion if the undisputed evidence indicates that the other
party should win as a matter of law.”).
A.
Factual Background
In support of his instant Motion, Defendant filed an Affidavit
(Docket
Entry
21-1
at
1-3)
to
which
he
attached
his
“Employee/Witness Statement Form” concerning the incident at issue
(id. at 5-8).
In response, Plaintiff filed his own Affidavit
(Docket Entry 24-1 at 1-4), as well as numerous “exhibits” (Docket
Entry 24-2 at 1-17).3
Plaintiff’s Affidavit states in conclusion
that “[Plaintiff] declare[s] under the penalty of perjury that the
foregoing is true and correct.”
3
(Docket Entry 24-1 at 4.)
A
Plaintiff did not swear to the contents of his Complaint
or sign it under penalty of perjury and thus it does not constitute
evidence for summary judgment purposes. Whitman v. Mineta, 107 F.
App’x 28, 29 n.1 (9th Cir. 2004); Sharp v. Kelsey, 918 F. Supp.
1115, 1123 (W.D. Mich. 1996).
-6-
signature line bearing Plaintiff’s printed name appears immediately
above that concluding statement.
Plaintiff’s
Affidavit
Defendant,
a
corrections
Institute,
“struck
(See id.)4
states
officer
[Plaintiff]
in
that,
at
the
on
August
Piedmont
groin
17,
Correctional
with
his
billyclub[,] [c]ausing [Plaintiff] to double over in pain.”
at 2.)
2011,
drawn
(Id.
It further declares Defendant and the other officers
present in the elevator where the incident occurred then laughed.
(Id. at 1-2; see also Docket Entry 21-1 at 2.)
“[Plaintiff] said
‘Don’t hit me there[,]’ wherein [sic] Defendant responded by
saying, ‘oh, suck it up Danny.’”
(Docket Entry 24-1 at 2.)
Immediately following the incident, Plaintiff reportedly declined
medical assistance because he “was embarrassed about having [his]
genitals looked at . . . .”
(Id.)
When initially interviewed
about the matter, Plaintiff indicated that Defendant was “horse
playing and attempted to ‘bump’ [Plaintiff] in the privates,” then
later reported that Defendant “took the ‘night stick’ and ‘grazed’
[Plaintiff’s] groin area.”
(Docket Entry 24-2 at 2; see also
Docket Entry 24-1 at 2; Docket Entry 24-2 at 10.)
However,
according to Plaintiff, he “wrote [Defendant] was horse playing on
4
Plaintiff also filed a Brief in Opposition to Defendant’s
Motion for Summary Judgment.
(Docket Entry 24.)
Said Brief
contains factual allegations consistent with those in Plaintiff’s
Affidavit (id. at 2-3) and concludes with language, identical to
that found in the Affidavit, declaring the truth of the foregoing
statements under penalty of perjury and bearing Plaintiff’s printed
name (id. at 15).
-7-
the elevator [because] [Plaintiff] did not want to get [him]self in
trouble or be retaliated against from other officers . . . .”
(Docket Entry 24-2 at 10; see also Docket Entry 24-1 at 3 (“I was
being coerced into changing my original statement.”).)
Plaintiff’s exhibits show that the Correctional Administrator
of Piedmont Correctional Institution investigated the alleged
incident between Plaintiff and Defendant (see Docket Entry 24-2 at
1-6) and ultimately determined that “the incident did occur” and
that Defendant “violated the Conduct of Employees policy which
states ‘No employee will engage in acts of horseplay or joking with
inmates’, as well as violated the Use of Force Policy, which states
‘The
Use
of
Force
shall
be
permissible
only
to
the
extent
reasonably necessary for a proper correctional objective’” (id. at
3).
As a result, “[a] recommendation for [Defendant’s] dismissal
for Unacceptable Personal Conduct [was] approved by the Department
of Correction effective October 31, 2011.”
(Id. at 4.)
Defendant has averred that,
[w]hen he entered the elevator, [he] had his left hand on
[his] service baton and was moving it back and forth with
the baton remaining in the holder on the left-hand side
of [his] belt. [Defendant] was not moving [his] baton
back and forth in an effort to make contact with
[P]laintiff. [Defendant] did not feel [his] baton hit
[P]laintiff and [he] had no intention of making contact
with [P]laintiff.
(Docket Entry 21-1 at 2.)
According to his dismissal letter,
Defendant “stated that [he] was horse playing and [he] did know
-8-
better, but [he] did not feel the baton hit [Plaintiff].”
(Docket
Entry 24-2 at 6.)
B. Evidentiary Issues
As an initial matter, Plaintiff’s “Affidavit” does not suffice
as a matter of law. “[A]n affidavit, by definition, is a statement
reduced to writing and the truth of which is sworn to before
someone who is authorized to administer an oath.”
Elder-Keep v.
Aksamit, 460 F.3d 979, 984 (8th Cir. 2006) (emphasis in original)
(internal
quotation
marks
omitted).
The
document
Plaintiff
submitted lacks any indication that he swore to its truth before
anyone authorized to administer an oath.
(See Docket Entry 24-1.)
“A statutory exception to this rule exists under 28 U.S.C.
§ 1746 [] which permits unsworn declarations to substitute for an
affiant’s oath if the statement contained therein is made ‘under
penalty of perjury’ and verified as ‘true and correct.’”
Nissho-
Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988).
cited statute provides:
Wherever, under any law of the United States or under any
rule, regulation, order, or requirement made pursuant to
law, any matter is required to be . . . proved by the
sworn declaration, verification, certificate, statement,
oath, or affidavit, in writing of the person making the
same . . . such matter may, with like force and effect,
be supported, evidenced, established, or proved by the
unsworn declaration, certificate, or statement, in
writing of such person which is subscribed by him, as
true
under
penalty
of
perjury,
and
dated,
in
substantially the following form:
. . .
-9-
The
2. If executed within the United States, its territories,
possessions, or commonwealths: ‘I declare (or certify,
verify, or state) under penalty of perjury that the
foregoing is true and correct.
Executed on (date).
(Signature)’.
28 U.S.C. § 1746 (emphasis added). To qualify under this statutory
provision, a submission thus must bear the affiant’s “signature.”
In this case, although Plaintiff’s Affidavit indicates that he
“declare[s] under the penalty of perjury that the foregoing is true
and correct” (Docket Entry 24-1 at 4), in connection with that
statement Plaintiff’s name appears only in printed form identical
to the printing in the rest of the document (see id.).
Moreover,
said printed version of Plaintiff’s name differs markedly in
appearance from the traditional cursive signature that accompanied
Plaintiff’s Complaint.
(Compare id., with Docket Entry 1 at 4.)
In addition, the handwriting in the Affidavit also differs notably
from the handwriting in the Complaint.
(Compare Docket Entry 24-1
at 1-4, with Docket Entry 1 at 1-4.)
Under these circumstances,
the undersigned concludes that Plaintiff’s Affidavit lacks the
required signature and, therefore, does not qualify as competent
summary judgment evidence.
Without Plaintiff’s Affidavit, no material issue of fact would
remain.
properly
However, Plaintiff should have an opportunity to submit a
signed
affidavit,
if
the
contents
of
his
current
submission otherwise would defeat Defendant’s instant Motion.
See
Fed. R. Civ. P. 56(e) (allowing court to “give an opportunity to
-10-
properly support or address [a] fact” where “a party fails to
properly support [said] assertion of fact”); see also Barraza v.
United States, 526 F. Supp. 2d 637, 641-43 (W.D. Texas 2007)
(permitting correction of summary judgment evidence that omitted
necessary acknowledgement of submission under penalty of perjury
and/or signature where, without said evidence, “there would not be
a material issue of fact”).
As a result, the next subsection will
address the question of whether the substance of Plaintiff’s
Affidavit, if accepted, would raise a material factual dispute.
Plaintiff’s
Response
to
Defendant’s
instant
Motion
also
contends that Plaintiff did not receive certain discovery he
requested from Defendant. (Docket Entry 24 at 5-6; see also id. at
6
(recognizing
that
Defendant
responded
to
such
requests
by
indicating “he was not in possession of [requested discovery]”).)
According to Plaintiff, he then “submitted a ‘subpeona [sic] duces
tecum’ to this [C]ourt, [D]efendant’s attorney, and the [A]ttorney
[G]eneral’s office on or around January 21, 2014.”
(emphasis in original).)5
However, the record reflects no such
subpoenas received by this Court.
21, 2014, to present.)
(Id. at 6
(See Docket Entries dated Jan.
Moreover, Plaintiff failed to include a
copy of the alleged subpoena(s) in the material submitted in
5
Because Plaintiff proceeds as a pauper (see Docket Entry
5), “[t]he officers of the [C]ourt [] issue and serve all process,”
28 U.S.C. § 1915(d).
-11-
connection with his Response (or even to identify the person or
entity Plaintiff sought to subpoena). (See Docket Entries 23, 24.)
By rule:
If a nonmovant shows by affidavit or declaration that,
for specified reasons, it cannot present facts essential
to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or
to take discovery; or
(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d) (emphasis added). Plaintiff does not qualify
for relief under this provision.
First, Plaintiff has not explicitly requested any relief from
the Court regarding discovery matters. (See Docket Entry 24 at 6.)
In addition, as evidenced by the discussion below, the discovery at
issue (Plaintiff’s prison medical records, policies of the prison,
and inter-office memos concerning the incident (see id. at 5))
likely would not “by itself create a genuine issue of material fact
sufficient for the nonmovant to survive summary judgment,” Pisano
v. Strach, 743 F.3d 927, 931 (4th Cir. 2014).
Finally, Plaintiff
has failed to show he “‘has not had the opportunity to discover
information that is essential to his position,’” Harrods Ltd. v.
Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002)
(quoting Anderson, 477 U.S. at 250 n.5) (emphasis added); that is,
he had the chance to conduct discovery during the discovery period
(which closed in March 2014 (see Text Order dated Sept. 16, 2013))
-12-
and he has failed to substantiate his contention that he submitted
any proposed subpoenas to this Court during that time.
For all of
these reasons, Plaintiff has not offered adequate specified reasons
to show that the Court should afford him a further opportunity to
take discovery to muster evidence to oppose summary judgment.
C. Discussion
In seeking summary judgment, Defendant first argues that
Plaintiff has failed to present evidence showing either that
Defendant intended to harm Plaintiff or that Defendant in fact did
harm Plaintiff. (Docket Entry 21 at 8-10.) In addition, Defendant
contends that qualified immunity protects him from liability. (Id.
at 10-13.)
These contentions fall short, if one considers the
substance of Plaintiff’s Affidavit as proper summary judgment
evidence.
In this regard, an analysis of the viability of Plaintiff’s
excessive
force
claim
merges
with
the
assessment
of
whether
Defendant enjoys qualified immunity: “The government official will
be granted immunity unless (1) the facts that a plaintiff has
alleged or shown make out a violation of a constitutional right,
and (2) the right at issue was clearly established at the time of
the alleged misconduct.”
Doe ex rel. Johnson v. South Carolina
Dep’t of Soc. Servs., 597 F.3d 163, 169 (4th Cir. 2010).
The Court
may decide “which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances of
-13-
the particular case at hand.”
236 (2009).
Pearson v. Callahan, 555 U.S. 223,
In the instant case, Defendant’s qualified immunity
argument addresses only the first part of the analysis - i.e., he
contends that the facts Plaintiff has shown do not make out a
violation of a constitutional right.
13.)
The
question
therefore
(See Docket Entry 21 at 10-
becomes
whether
the
factual
information in Plaintiff’s Affidavit (if treated as evidence for
summary judgment purposes) would suffice to sustain his claim of
excessive force or, instead, said claim would fail as a matter of
law even under that version of events.
In that regard, “[t]he [United States] Supreme Court has
extended the application of the Eighth Amendment’s prohibition
against
‘cruel
and
unusual
punishments’
prisoners by prison officials.”
(4th Cir. 2013).
to
the
treatment
of
Hill v. Crum, 727 F.3d 312, 317
More specifically,
the Eighth Amendment forbids “the unnecessary and wanton
infliction of pain.” Whitley v. Albers, 475 U.S. 312,
319 [] (1986) . . . . “When prison officials maliciously
and sadistically use force to cause harm, contemporary
standards of decency always are violated.”
Hudson v.
McMillian, 503 U.S. 1, 9 [] (1992) . . . . “This is true
whether or not significant injury is evident. Otherwise,
the Eighth Amendment would permit any physical
punishment, no matter how diabolic or inhuman, inflicting
less than some arbitrary quantity of injury.” Id. at 9
[].
Hill, 727 F.3d at 317.
Accordingly, “the nature of the force,
rather than the extent of the injury, is the relevant inquiry.”
-14-
Id. at 321.6
“In other words, [a plaintiff] must show that ‘the
[defendant’s] actions amounted to punishment and were not merely an
incident of some other legitimate governmental purpose.’”
Wernert
v. Green, 419 F. App’x 337, 340 (4th Cir. 2011) (quoting Robles v.
Prince George’s Cnty., Md., 302 F.3d 262, 269 (2002)) (some
internal quotation marks omitted).
Furthermore,
[i]n determining whether [this] constitutional line has
been crossed, a court must look to such factors as the
need for the application of force, the relationship
between the need and the amount of force used, the extent
of the injury inflicted, and whether the force was
applied in a good faith effort to maintain and restore
discipline or maliciously and sadistically for the very
purpose of causing harm.
Id.
(internal
quotation
marks
omitted)
(some
alterations
in
original).
Viewing
the
content
of
Plaintiff’s
Affidavit
and
any
reasonable inferences therefrom in a light most favorable to
Plaintiff, Matsushita, 475 U.S. at 587, Defendant, acting in the
absence of any need to maintain or to restore order or discipline,
intentionally struck Plaintiff in the groin with a billy club.
6
In 2010, the Supreme Court held that the Fourth Circuit
erred in requiring that a plaintiff alleging excessive force by a
prison guard show more than a de minimis injury. Wilkins v. Gaddy,
559 U.S. 34, 36-40 (2010). In the instant case, Defendant concedes
that, “[a]t the time of the incident, August 17, 2011, the law had
already become clearly established in the 2010 decision in Wilkins
[]; in which ‘the Court shift[ed] the core judicial inquiry from
the extent of the injury to the nature of the force - specifically,
whether it was nontrivial and was applied maliciously and
sadistically to cause harm.’” (Docket Entry 21 at 11-12 (quoting
Wilkins, 559 U.S. at 39) (alterations in original) (some internal
quotation marks omitted).)
-15-
(See Docket Entry 24-1 at 2.)
Defendant nonetheless argues that
Plaintiff “has presented no objective evidence that he was injured
by [Defendant].
report,
[Plaintiff] has failed to produce any medical
treatment
note,
or
otherwise
to
substantiate
a
‘sufficiently serious’ harm that was more than ‘nontrivial.’”
(Docket Entry 21 at 8.)
Defendant, however, concedes that the absence of evidence of
injury does not defeat a claim of this sort as a matter of law.
(See id. at 11-12 (citing Wilkins v. Gaddy, 559 U.S. 34 (2010)).)
Moreover, at this stage of the proceedings, a proper averment by
Plaintiff that Defendant’s blow caused Plaintiff “to double over in
pain” (Docket Entry 24-1 at 2) and required Plaintiff to seek
“medical [attention] for the pain & swelling in [his] testicles”
(id. at 4), would constitute adequate evidence of a non-trivial
application of force.
See Clark v. Compton, No. 1:07-CV-137, 2008
WL 2356739, at *2-3 (N.D. Ind. June 4, 2008) (unpublished) (“[The
plaintiff] maintains that he suffered swelling, pain, and some
discomfort from the knee strike [to his groin by a detention
officer]. . . . [The plaintiff] does not seem to contend, however,
that he has any permanent injuries from the event. . . .
While
absence of serious injury from the use of force is relevant to an
Eighth Amendment inquiry, it does not end it. . . .
[B]lows to a
non-resisting, handcuffed prisoner . . . that result in minor
bruising and swelling, such as [the plaintiff] sustained, are not
-16-
de minimis for Eighth Amendment purposes.”); see also Kilmartin v.
Schaffer, No. 9:12-CV-1167 (FJS/CFH), 2013 WL 5929447, at *5
(N.D.N.Y. Nov. 1, 2013) (unpublished) (“Being kicked in the groin
without provocation is not, as a matter of law, a de minimis use of
force for purposes of a Fourth Amendment excessive force claim.”).
Defendant also contends that Plaintiff “failed to show that
[Defendant] used force to harm [Plaintiff] in a malicious or
sadistic way.”
(Docket Entry 21 at 9.)
According to Defendant,
his baton “remain[ed] in the holder” and he “did not feel [his]
baton hit [P]laintiff and [he] had no intention of making contact
with [P]laintiff.” (Docket Entry 21-1 at 2.) However, Plaintiff’s
Affidavit states that Defendant “struck [Plaintiff] in the groin
with his drawn billy club,” after which Defendant “laughed” and
told Plaintiff to “suck it up.”
added).)
(Docket Entry 24-1 at 2 (emphasis
Defendant argues that Plaintiff’s prior accounts of the
incident conflict with any such averment and that therefore no
material question of fact exists.
(Docket Entry 26 at 2-3.)
In support of this argument, Defendant cites Barwick v.
Celotex Corp., 736 F.2d 946 (4th Cir. 1984), in which the Fourth
Circuit held that “[a] genuine issue of material fact is not
created where the only issue of fact is to determine which of the
two conflicting versions of the plaintiff’s testimony is correct,”
id. at 960 (emphasis added).
However, in that case, the plaintiff
attempted to rely on an affidavit that contradicted his prior
-17-
deposition
See
id.
testimony
at
959-60.
to
establish
In
this
a
disputed
case,
if
issue
properly
of
fact.
completed,
Plaintiff’s Affidavit would represent the sole sworn statement by
Plaintiff about the incident. His other accounts of record consist
of a prison grievance form - which does in fact indicate that
Defendant struck Plaintiff (see Docket Entry 24-2 at 9) - and, as
an attachment to that form, an explanation by Plaintiff that he
initially said he and Defendant engaged in “horse playing” and that
Defendant only “grazed” him because of pressure from other prison
guards (id. at 10).
Plaintiff did not make those statements under
oath or subject to penalty of perjury.
(See id. at 9-10.)
Barwick
thus does not compel entry of summary judgment for Defendant.
Finally, if in acceptable form, Plaintiff’s Affidavit would
support an inference that Defendant struck Plaintiff in the groin
with a constitutionally culpable state of mind.
See Brown v.
Jones, 471 F. App’x 420, 421 (5th Cir. 2012) (“[The plaintiff]
alleged, in a verified complaint, that during a pat down search
[the defendant] struck [the plaintiff] in the groin and squeezed
his testicles in an unnecessary and sadistic attack for the purpose
of causing him pain.
[The plaintiff] alleged that this use of
excessive force resulted in both immediate and continuing pain, as
well as an injury that resulted in blood in his urine.
Viewing
[the plaintiff’s] allegations in the light most favorable to him,
he has stated a claim for violation of a constitutional right.”);
-18-
Clark, 2008 WL 2356739, at *3-4 (denying summary judgment where the
plaintiff testified that, after he submitted to handcuffing, the
defendant-detention officer, “while smiling, drove his right knee
directly into [the plaintiff’s] groin,” because, “[v]iewing the
evidence in the light most favorable to [the plaintiff], there was
no need for any further force by [the defendant], and thus the
subsequent alleged kick to the groin was indeed wanton and without
justification”).7
In
sum,
Plaintiff’s
Affidavit
(if
properly
signed
under
penalty of perjury) would allow a fact finder to conclude that
Defendant
intentionally
applied
force
to
Plaintiff
in
an
unnecessary and malicious fashion in contravention of the Eighth
Amendment.
However, should Plaintiff fail to correct the cited
defects in the execution of his Affidavit, the record would lack
evidence sufficient to support his excessive force claim.
III.
Conclusion
Plaintiff’s proposed amendment would fall short as a matter of
law and his instant Motion thus fails as futile.
action
on
Defendant’s
instant
Motion
7
will
not
Furthermore,
proceed
until
Moreover, as mentioned previously, Plaintiff provided
letters concerning Defendant’s dismissal which show that the
Correctional Administrator determined, inter alia, that Defendant
“violated the Use of Force policy by ‘striking’ ‘popping’ or
hitting [Plaintiff] in the groin area with [his] baton.” (Docket
Entry 24-2 at 3.) Said determination further supports Plaintiff’s
account of Defendant’s actions.
-19-
Plaintiff
has
a
further
opportunity
to
properly
execute
his
Affidavit.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Leave to
Amend Complaint (Docket Entry 25) is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary
Judgment (Docket Entry 20) is DEFERRED.
IT
IS
FURTHER
ORDERED
that
Plaintiff
September 5, 2014, to file a valid affidavit.
shall
have
until
The Clerk shall
refer this case back to the undersigned for further action after
that date.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 8, 2014
-20-
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