United States District Court, M.D. Alabama, Northern Division
OPINION AND ORDER
W. KEITH WATKINS, Chief District Judge.
Before the court is Plaintiff Albert King's motion for reconsideration of the court's order denying his motion to proceed in forma pauperis on appeal. (Doc. # 120.) Upon consideration of Plaintiff's motion for reconsideration, the court concludes that the motion is due to be granted.
Plaintiff claims that his constitutional rights were violated by four jail officers who are employed at the Montgomery County Correctional Facility and one doctor who treats inmates at the same facility but who is employed by a private company. While in custody at the facility, Plaintiff was attacked by two fellow inmates, resulting in a fractured bone in Plaintiff's hand, among other lesser injuries. One Saturday morning, officers allowed a group of inmates to retain possession of a broom, ordinarily used by the inmates for cleaning their cells, for the purpose of reaching a television to change the channel. Plaintiff claims that the officers were deliberately indifferent to a substantial risk of harm by allowing the inmates to possess and control the broom because another inmate used the broom's handle as a weapon against Plaintiff. He also claims that the officers were deliberately indifferent in their failure to timely intervene to stop the attack. Finally, Plaintiff alleges that the doctor who treated him was deliberately indifferent to his serious medical needs because the provision of treatment by an outside orthopedist was delayed.
On June 2, 2014, the court entered a memorandum opinion and order granting summary judgment in favor of all Defendants on each of Plaintiff's three § 1983 claims for deliberate indifference. (Doc. # 106.) The opinion included a footnote that Plaintiff failed to furnish the Clerk of the Court with electronic evidence including a video. ( See Doc. # 106, at 5 n.5). Final judgment in favor of Defendants was entered the same day that the summary judgment opinion issued. (Doc. # 107.)
Twenty-eight days later on June 30, 2014, Plaintiff's counsel filed a notice with the court that she had furnished Plaintiff's electronic evidence to the chambers of the undersigned, on a flash drive attached to a three-ring binder of the courtesy copy of Plaintiff's briefs in opposition to Defendants' motions for summary judgment. ( See Doc. # 109.) Plaintiff's counsel also left a message with chambers staff describing the flash drive. The same day, Plaintiff filed a motion to alter, amend, or vacate the court's judgment, or in the alternative, to reconsider its summary judgment ruling. (Doc. # 110.)
The court responded by locating the flash drive described by Plaintiff's counsel, which was in the courtesy copy binder furnished to chambers, but which had not been filed with the Clerk of the Court. The court reviewed the electronic evidence, which included video footage and x-ray evidence, and found that the evidence had no impact upon its prior conclusions because the evidence confirmed undisputed facts. As a result, the court entered an opinion and order on July 2, 2014, denying Plaintiff's motion and directing the Clerk of the Court to file Plaintiff's electronic evidence as Exhibits E and N to Plaintiff's briefs in opposition to Defendants' motions for summary judgment. (Doc. # 111.) The court also briefly considered and rejected Plaintiff's contention that the court's summary judgment opinion and order failed to address his arguments. The court pointed Plaintiff to the relevant sections of analysis discussing each of the contested claims. (Doc. # 111, at 5-6.)
On July 9, 2014, Plaintiff's counsel called an employee of the Clerk of the Court to make certain that the law clerk assigned to the case, who counsel called the "kid who lost the video before kicking [her] case out, " actually had provided the Clerk of the Court with Plaintiff's electronic evidence. The employee assured counsel that the evidence was in the file in the Clerk's Office. Her recorded message was forwarded to chambers.
On August 1, 2014, Plaintiff filed a notice of appeal. Plaintiff appeals the court's entry of Documents 106, 107, and 111. (Doc. # 112.) Plaintiff also filed a motion to proceed in forma pauperis on appeal. (Doc. # 115.) The court entered an order on August 4, 2014, denying the motion and certifying the appeal as not taken in good faith. (Doc. # 117.) In that order, the court certified, pursuant to 28 U.S.C. § 1915(a)(3), that Plaintiff's appeal is not taken in good faith - in other words "frivolous" or lacking in "substantive merit." (Doc. # 117, at 1.)
Plaintiff promptly filed a motion for hearing, (Doc. # 118), which the court has construed as containing a motion for reconsideration of its August 4, 2014, order denying Plaintiff's motion for leave to proceed in forma pauperis on appeal.
Attached to Plaintiff's motion to proceed in forma pauperis is the form required by the Eleventh Circuit Court of Appeals, which requires Plaintiff to identify his issues on appeal. (Doc. # 115-1.) Plaintiff identified three issues on the form.
First, Plaintiff proposes that this court "erred by dismissing the case without considering material video and x-ray evidence that was lost by the district court's staff." (Doc. # 115-1, at 1.)
Second, Plaintiff suggests that this court "erred by dismissing the case without ever considering Plaintiff's primary argument, of first impression in this circuit, that the willing and knowing introduction of a weapon into a prison by staff members to be used for improper purposes in violation of prison policy and federal law, was the creation of, ratification of, and deliberate indifference to the inherent danger and ...