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Leslie v. Greene

United States District Court, M.D. Alabama, Northern Division

January 12, 2015

KENNETH D. LESLIE, #156 048, Plaintiff,
v.
OFFICER LORENZO GREENE, et al., Defendants.

RECOMMENDATION OF THE MAGISTRATE JUDGE

CHARLES S. COODY, Magistrate Judge.

In this 42 U.S.C. ยง 1983 action, Plaintiff Leslie, a state inmate presently incarcerated at the Frank Lee Youth Center Deatsville, Alabama, challenges the constitutionality of actions taken against him during his incarceration at the Easterling Correctional Facility ["Easterling"]. He contends that on January 1, 2012, his constitutional rights were violated when he was subjected both to an excessive use of force and a failure to be protected from the use of force. Leslie further alleges a due process violation regarding a disciplinary infraction issued against him following the January 1, 2012, incident. Named as defendants are Correctional Officers Lorenzo Greene ["Greene"] and Dennis Durry ["Durry"]. Leslie seeks injunctive relief, damages, legal costs, attorneys fees, and requests trial by jury. Doc. Nos. 1, 14.

Defendants filed special reports and supporting evidentiary materials addressing Leslie's claims for relief. Pursuant to the orders entered in this case, the court deems it appropriate to treat the special reports as motions for summary judgment. See Doc. Nos. 9, 28. This case is now pending on Defendants' motions for summary judgment. Upon consideration of such motions, the evidentiary materials filed in support thereof, and Leslie's responses in opposition to these motions, the court concludes that Defendants' motions for summary judgment are due to be granted.

I. STANDARD OF REVIEW

"Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine [dispute] as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (per curiam) (citation to former rule omitted); Fed.R.Civ.P. Rule 56(a) ("The court 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.").[1] The party moving 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 [record, including pleadings, discovery materials and affidavits], which it believes demonstrate the absence of a genuine [dispute] of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet this burden by presenting evidence indicating there is no dispute of material fact or by showing the nonmoving party has failed to present evidence to support some element on which it bears the ultimate burden of proof. Id. at 322-324.

Defendants have met their evidentiary burden. Thus, the burden shifts to Leslie to establish, with appropriate evidence beyond the pleadings, that a genuine dispute material to his case exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Celotex, 477 U.S. at 324; Fed.R.Civ.P. 56(e)(3) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required [by citing to materials in the record including affidavits, relevant documents or other materials] the court may... grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it."). A genuine dispute of material fact exists when the nonmoving party produces evidence that would allow a reasonable fact-finder to return a verdict in its favor. Greenberg, 498 F.3d at 1263. Consequently, to survive Defendants' properly supported motions for summary judgment, Leslie is required to produce "sufficient [favorable] evidence" which would be admissible at trial supporting his claims for relief. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Rule 56(e), Federal Rules of Civil Procedure. "If the evidence [on which the nonmoving party relies] is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-250 (internal citations omitted). "A mere scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the [trier of fact] could reasonably find for that party. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986)." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990). Conclusory allegations based on subjective beliefs likewise cannot create a genuine issue of material fact and, therefore, do not suffice to oppose a motion for summary judgment. Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (Leslie's "conclusory assertions..., in the absence of [admissible] supporting evidence, are insufficient to withstand summary judgment."); Harris v. Ostrout, 65 F.3d 912, 916 (11th Cir. 1995) (grant of summary judgment appropriate where inmate produces nothing beyond his own conclusory allegations challenging actions of the defendants); Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984) ("mere verification of party's own conclusory allegations is not sufficient to oppose summary judgment...."). Hence, when a Leslie fails to set forth specific facts supported by requisite evidence sufficient to establish the existence of an element essential to his case and on which the Leslie will bear the burden of proof at trial, summary judgment is due to be granted in favor of the moving party. Celotex, 477 U.S. at 323 ("[F]ailure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."); Barnes v. Southwest Forest Industries, Inc., 814 F.2d 607, 609 (11th Cir. 1987) (If on any part of the prima facie case the Leslie presents insufficient evidence to require submission of the case to the trier of fact, granting of summary judgment is appropriate).

For summary judgment purposes, only disputes involving material facts are relevant. United States v. One Piece of Real Property Located at 5800 SW 74 th Avenue, Miami, Florida, 363 F.3d 1099, 1101 (11th Cir. 2004). What is material is determined by the substantive law applicable to the case. Anderson, 477 U.S. at 248; Lofton v. Secretary of the Dept. of Children and Family Services, 358 F.3d 804, 809 (11th Cir. 2004) ("Only factual disputes that are material under the substantive law governing the case will preclude entry of summary judgment."). "The mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003). To demonstrate a genuine dispute of material fact, the party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine [dispute] for trial.'" Matsushita Elec. Indus. Co. Ltd., v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (internal citations omitted). In cases where the evidence before the court which is admissible on its face or which can be reduced to admissible form indicates there is no genuine dispute of material fact and establishes the party moving for summary judgment is entitled to it as a matter of law, summary judgment is proper. Celotex, 477 U.S. at 323-324 (Summary judgment is appropriate where pleadings, evidentiary materials and affidavits before the court show there is no genuine dispute as to a requisite material fact.); Waddell v. Valley Forge Dental Associates, Inc., 276 F.3d 1275, 1279 (11th Cir. 2001) (to establish a genuine dispute of material fact, the nonmoving party must produce evidence such that a reasonable trier of fact could return a verdict in his favor.).

Although factual inferences must be viewed in a light most favorable to the nonmoving party and pro se complaints are entitled to liberal interpretation by the courts, a pro se litigant does not escape the burden of establishing by sufficient evidence a genuine dispute of material fact. See Beard, 548 U.S. at 525; Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990). Thus, Leslie's pro se status alone does not mandate this court's disregard of elementary principles of production and proof in a civil case. In this case, Leslie fails to demonstrate a requisite genuine dispute of material fact in order to preclude summary judgment. Matsushita, supra .

II. DISCUSSION

On January 1, 2012, Greene pepper sprayd Leslie twice. Leslie maintains Greene's conduct amounted to excessive force because his actions, which comprised making threatening statements, did not reach a "threat level per D.O.C. regulations" requiring Greene's use of pepper spray under the circumstances. Doc. No. 1. In an amendment to the complaint, Leslie claims Durry failed to protect him from Greene's use of force when this officer watched Greene pepper spray him twice and failed to intervene. Doc. No. 14.

Greene indicates that at approximately 2:15 a.m. he was escorting Leslie from Dorm C2 to the lobby with his property. When Leslie began cursing Greene the guard ordered him to stop. Leslie kept on, however, stating "You fucked my life up. I won't make parole now. I'm going to fuck you up." Greene again directed Leslie to stop at which time Greene states Leslie shoved a laundry cart into him and walked towards him stating "I'm going to fuck you up!" Greene pulled out his Sabre Red pepper spray, yelled "Gas!" and sprayed a one second burst at Leslie's face. Leslie commented "Is that all you fucking got?" and continued to advance towards the officer. Greene sprayed Leslie again in the face at which time he stopped his actions. Durry, a Dorm C1 rover, handcuffed Leslie. Doc. No. 7, Greene Affidavit.

Durry, while roving Dorm C1 heard a commotion at approximately 2:15 a.m. coming from the C-Dorm lobby. He looked in the lobby and observed Leslie sitting at a table being loud, disrespectful, and insubordinate to Greene. Durry then watched Leslie take off his coat and lunge at Greene who yelled "Gas!" and sprayed Leslie in the face as the inmate lunged at the officer. After being sprayed, Durry watched Leslie fall back onto the table and state "That's all you got?" Leslie got up from the table and walked towards Greene at which time Durry saw Greene spray Leslie again. Durry states three other correctional officers entered C-Dorm lobby at 2:20 a.m. Leslie then complied with Durry's request to turn around to the rear to be handcuffed. Doc. No. 26, Durry Affidavit.

Leslie was taken to the health care unit for assessment and decontamination at 2:35 a.m. Medical personnel observed that Leslie had "bilateral red eyes." The effects from the pepper spray were visible on his face and neck area also red. Medical personnel released Leslie to DOC custody at 2:55 a.m. Doc. No. 7, Exhs. 2, 3.

Defendants' evidentiary material includes the DOC incident report and a use of force investigative report. The incident report reflects that Leslie's conflict with Greene began shortly before 2:00 a.m. when the guard observed Leslie off his assigned bed. Greene reported the incident to Sergeant Kerry Williams who told Greene to escort Leslie to the shift commander's office. After questioning Leslie about his conduct in the dorm Sgt. Williams reprimanded him and told him to pack his belongings because he was being moved to the restricted privileges dorm-Dorm C1. The remainder of the report depicts the incident in similar fashion to Greene's description of the events as stated in his affidavit but reflects that besides stating "Is that all you fucking got, " after he was initially sprayed, Leslie also stated "I'm going to fucking kill you." Doc. No. 7, Exh. 3.

Captain Nathaniel Lawson prepared a use of force investigative report on January 6, 2012, after interviewing Leslie, Greene, and Durry. ...


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