United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
SONJA F. BIVINS, Magistrate Judge.
Michael Darnell Oliver, an Alabama prison inmate proceeding pro se and in forma pauperis, filed a complaint under 42 U.S.C. § 1983. This action was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4), and is now before the undersigned on Defendants' Motion for Summary Judgment (Doc. 73) and Plaintiff's Response thereto (Doc. 74). Upon consideration of the foregoing pleadings, and all other relevant pleadings in this file, the undersigned recommends that Defendants' motion be GRANTED, in part, and be DENIED, in part, and that the remaining issue be set for an evidentiary hearing. Specifically, Defendants' motion is due to be GRANTED and Plaintiff's claims arising out of the incident occurring on July 10, 2011 and involving Defendants Shelton Forney, L. Bailey, K. Reynolds, R. Armstrong, Johnny L. Johnson, C. Kimbrel, and Thaddeus Betts should be dismissed. Likewise, Defendant's motion is due to be GRANTED, and Plaintiff's claims arising out of the incidents occurring on August 24-25, 2011, and involving Defendants Johnny L. Johnson, C. Kimbrel, J. Broadhead, Earnest Stanton, A. Gipson, C. Daughtry, Russell Johnson, and Carroll are due to be dismissed. Defendants' motion is due to be DENIED however to the extent Defendants seek the dismissal of Plaintiff's excessive force claims arising out of the incident occurring on November 12, 2011 and involving Defendants Kimbrel, Tyus, Andrews, Broadhead, Stanton and Gipson.
a. JULY 10, 2011
Plaintiff filed this action on July 18, 2011 (Doc. 1 at 4), in the Middle District of Alabama. After the case was transferred to this district, Oliver filed several amended complaints, the last complaint, which is the operative one, was filed on August 21, 2012, pursuant to § 1983 action. (Doc. 28). In his complaint, Oliver alleges that while incarcerated at Holman Correctional Facility ("Holman"), he was physically assaulted by prison officials on three separate occasions, namely July 10, 2011, August 24, 2011 and November 12, 2011. (Doc. 28 at 5-11).
With respect to the July 10, 2011 incident, Oliver alleges that at approximately 12:15 a.m., while in the segregation unit at Holman, Defendant Sergeant C. Kimbrel, (hereafter "Kimbrel") handcuffed him though the tray slot area of his cell to escort Oliver for a haircut. ( Id., at 10). Kimbrel went into Oliver's cell and threw away Oliver's "Victory Magazine and a drawing". (Id.). Oliver contends that he complained about Kimbrel's action to Defendant Sergeant Johnny Johnson (hereinafter "J. Johnson") and as Oliver sat into the chair for his haircut, J. Johnson began "hollering words of profanity" at him, punching him in face, and choking him numerous times. (Id.). Then, a "Code Red" was called and Defendants Kimbrel, Correctional Officer Reynolds (hereafter "Reynolds"), C.O. Thaddeus Betts (hereafter "Betts"), C.O. Shelton Forney (hereafter "Forney"), Sergeant L. Bailey (hereafter "Bailey"), and C.O. R. Armstrong (hereafter "Armstrong") came to assist. (Id.). Oliver contends that Kimbrel and Betts begin spraying his face with Sabre Red mace several times, until he began choking. (Id.). At this point, all of the guards began repeatedly punching and kicking Oliver until his chair flipped over. (Id.). Next, the guards started stomping, kicking, and punching him in all areas of his body. (Id.). Oliver contends that he pleaded with the guards for his asthma inhaler and begged them not to reinjure his right arm, which had been broken several months earlier in an unrelated fight at another prison facility. ( Id., at 11). Oliver asserts that despite his requests, the assault continued as the officers picked him up and "rammed" his head into the walls several times. (Id.).
According to Oliver, Defendants Bailey and Armstrong "snatched [his] shower shoes" and his pants off and stated "you got a pretty booty" in agreement with one another. (Id.). Oliver asserts that when they arrived at the medical ward, Betts and Kimbrel took turns choking him until he began hyperventilating and fainting and ultimately, suffered an asthma attack. ( Id., at 11-12). The officers then began shouting "die you fucking Mason - die you fucking Mobster, die you fucking B.G.D.N.!" ( Id., at 12) (emphasis in original). The nurse then provided Oliver with a "brand new inhaler" and gave him "two puffs". (Id.). Oliver asserts that cold water was run over his head and that a "chronic care visit and sick call" were conducted, which reflect that he suffered "lumps, bruises, swollen eyes, and cuts all over [his] body!" (Id.).
b. AUGUST 24-25, 2011
With respect to the August 24-24, 2011 incidents, Oliver alleges that on August 24, 2011, he and Defendant Carroll, who was standing outside of Oliver's segregation cell, engaged in a verbal dispute, and that Carroll left the cell cursing and saying that he was going to "whip [Oliver's] ass", and Oliver responded, "[n]ot by yourself you won't - chump!" (Id.). Oliver asserts that Carroll returned to Oliver's cell accompanied by Defendants J. Johnson, Russell Johnson (hereafter "R. Johnson"), C. Daughtry (hereafter "Daughtry"), Earnest Stanton (hereafter "Stanton"), Kimbrel, Anthony Gipson (hereafter "Gipson"), and J. Broadhead (hereafter "Broadhead"), and that J. Johnson opened Oliver's tray slot and told the other guards to assist him in spraying Oliver with Sabre Red mace. (Id.). After six (6) bursts of the chemical were sprayed, Oliver began struggling to breathe and pleading with the officers to stop because he feared suffering an asthma attack. ( Id., at 8-9). The officers administered three (3) more bursts of the chemical. J. Johnson then handcuffed Oliver as he was gasping for air. ( Id., at 9).
According to Oliver, at that point, all of the officers began punching him repeatedly in the face, neck, and back. (Id.). Oliver contends that the guards "ramm[ed]" his head into the side panel of the doorway and repeatedly punched him in different parts of his body. (Id.). Oliver was then pushed down on the bed and his pants were snatched off. (Id.). Defendant Daughtry told Oliver to "suck his penis" and stated, "I bet you don't feel like a man now". (Id.). Oliver responded, "go tell yo' daddy sissyboy!" (Id.). The guards continued punching and stomping Oliver. (Id.). According to Oliver, the nurse rushed him his inhaler, and his asthma worsened after this incident. (Id.).
Oliver further contends that later the same night, on August 25, 2011, his cell was "stripped down" and "fecal water" was left on the floor. (Id.). Oliver contends that he was left in his cell for three (3) weeks with no "running water" and "flies and maggots [were] crawling in the fecal water that was on the floor". (Id.).
c. NOVEMBER 11, 2011
With respect to the November 11, 2011 incident, Oliver alleges that at approximately 3:00 a.m., Defendant Broadhead, who was accompanied by Defendants Stanton and Gipson, placed handcuffs on him for a cell search. ( Id., at 3). Oliver contends that as he was standing outside of the cell, Stanton grabbed him by the back of his head and began repeatedly banging the front of his head against the outside wall. (Id.). Defendants Kimbrel, Sergeant K. Tyus, and Andrews joined the other three officials. ( Id., at 7). The guards pushed Oliver onto a bed and snatched off his pants and boxers. (Id.). The men began choking and punching Oliver repeatedly while his hands were still in handcuffs behind his back. (Id.). Oliver informed the men that he had asthma and was having trouble breathing and the men refused to stop the beating. (Id.). The guards then transported Oliver to the medical ward and continued to punch and kick him while on the elevator. (Id.). Oliver received "two puffs" for his asthma attack and "a brand new inhaler!" ( Id., at 7-8). According to Oliver, the next day, Nurse Debra Poindexter conducted a follow-up sick call and chronic care visit and documented the "damages done by the" prison guards, which included two black eyes, cuts, bruises, swelling, and a fractured right ribcage. ( Id., at 8).
In his complaint, Oliver names as Defendants: J. Johnson, Kimbrel, Betts, Tyus, Andrews, J. Broadhead, Stanton, Gipson, Daughtry, Carroll, Reynolds, R. Johnson, S. Forney, Armstrong, and Bailey and asserts claims of excessive force, deliberate indifference, negligence, wantonness, reckless endangerment, sexual harassment, and inhumane conditions. (Doc. 28, 4-5, 13-17).
In their Answers and Special Report filed on April 18, 2013, January 21, 2014, and January 31, 2014, Defendants deny Oliver's allegations to the extent that he claims his rights were violated and that he was assaulted, and they assert the defenses of absolute and qualified immunity, failure to state a claim, failure to exhaust administrative remedies, contributory negligence, self-defense, estoppel, preclusion of claims by the Prison Litigation Reform Act, no actionable injury, unclean hands doctrine, and assumption of risk by Plaintiff's assault on officers. (Docs. 48, 49, 58, 70, 72). In support of their defenses, Defendants have submitted their affidavits, investigative and disciplinary reports concerning the incidents, and Oliver's relevant medical records. (Docs. XX-X-XX-XX, 70, 72).
On February 4, 2014, the Court ordered that Defendants' Special Report and Answers be converted into a Motion for Summary Judgment, and afforded the parties an opportunity to submit a response in support of or opposition to the motion. (Doc. 73). On February 25, 2014, Oliver submitted a document entitled "Affidavits and Answer/Response" wherein he included a personal affidavit, an affidavit from inmate James Maples and an affidavit from inmate Ricky Gilland. (Doc. 74 at 1-17). The motion and response are now before the Court on review.
II. SUMMARY JUDGMENT STANDARD
Summary Judgment is proper "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); see Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); see also Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Garczynski v. Bradshaw , 573 F.3d 1158, 1165 ("[S]ummary judgment is appropriate even if some alleged factual dispute' between the parties remains, so long as there is no genuine issue of material fact.")
The party asking for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." Id., at 323. The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing, or pointing out to, the district court that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id., at 322-24.
Once the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, ' designate specific facts showing that there is a genuine issue for trial.'" Id., at 324. To avoid summary judgment, the nonmoving party "must do more than show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). On the other hand, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in its favor. See Anderson , 477 U.S. at 255.
ThyssenKrupp Steel USA, LLC v. United Forming, Inc., 2013 U.S. Dist. LEXIS 28034, *5-7, 2013 WL 765314 (S.D. Ala. Jan. 29, 2013) (citations omitted).
In considering whether the Defendants in this case are entitled to summary judgment, the Court has viewed the material facts in the light most favorable to Oliver where there are genuine disputes. Comer v. City of Palm Bay, Florida , 265 F.3d 1186, 1192 (11th Cir. 2001) ("We view the evidence and all factual inferences raised by it in the light most favorable to the non-moving party, and resolve all reasonable doubts about the facts in favor of the non-moving party."). The requirement to view the facts in the nonmoving party's favor extends only to "genuine" disputes over material facts. A genuine dispute requires more than "some metphysical doubt as to material facts." A "mere scintilla" of evidence is insufficient; the nonmoving party must produce substantial evidence in order to defeat a motion for summary judgment. Garczynski, supra, 573 F.3d at 1165 (internal citations omitted). In addition, "[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment." Resolution Trust Corp. v. Dunmar Corp. , 43 F.3d 587, 599 (11th Cir. 1995). More importantly, where "opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007); see also Logan v. Smith , 439 Fed.App'x 798, 800 (11th Cir. Aug. 29, 2011) ("In cases where opposing parties tell different versions of the same events one of which is blatantly contradicted by the record-such that no reasonable jury could believe it-a court should not adopted the contradicted allegations." (citations omitted)).
In this action, Oliver seeks redress pursuant to 42 U.S.C. § 1983 for alleged constitutional deprivations arising out of altercations between himself and several staff members at the Holman facility on July 10, August 24-25, and November 12, 2011. The Court addresses each incident in turn.
a. JULY 10TH INCIDENT
As best the Court can discern, with respect to the July 10 incident, Oliver alleges that Defendants J. Johnson, Broadhead, Kimbrel, Betts, Forney, Bailey, Reynolds and Armstrong used excessive force against him.
The Eighth Amendment's prohibition against cruel and unusual punishment, U.S. Const. amend. VIII, governs the use of force by prison officials against convicted inmates. Campbell v. Sikes , 169 F.3d 1353, 1374 (11th Cir. 1999). In order to establish an Eighth amendment excessive force claim against Defendants, Oliver must prove both an objective and subjective component. That is, he must show that the alleged wrongdoing was objectively "harmful enough" to establish a constitutional violation and that the Defendants "act[ed] with a sufficiently culpable state of mind", i.e., that the defendant acted "maliciously and sadistically to cause harm." Hudson v. McMillian , 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 & 8, 112 S.Ct. 995 , 999, 117 L.Ed.2d 156 (1992) (citations omitted).
Subjectively, Oliver must establish that "force was applied... maliciously and sadistically to cause harm[, ]" as opposed to being applied "in a good-faith effort to maintain or restore discipline[.]" Hudson, supra, 503 U.S. at 7; see also Whitley v. Albers , 475 U.S. 312, 320-321, 106 S.Ct. 1078, 1085, 89 L.Ed.2d 251 (1986)("[W]e think the question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.") In making this determination, the Court considers the need for application of force, the relationship between the need and the amount of force used, the threat reasonably perceived, any efforts made to temper the severity of a forceful response, and the extent of injury suffered. Hudson , 503 U.S. at 7 (citing Whitley , 475 U.S. at 321); see also Campbell, supra, 169 F.3d at 1375 ("Hudson and Whitley outline five distinct factors relevant to ascertaining whether force was used maliciously and sadistically for the purpose of causing harm': (1) the extent of injury'; (2) the need for application of ...