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Bonner v. Waver

United States District Court, N.D. Alabama, Western Division

January 13, 2015

LIEUTENANT KENNY WAVER, et al., Defendants

Arthur Lee Bonner, Plaintiff, Pro se, Atmore, AL.

For Kenny Waver, Lieutenant, Orlando Walker, Officer, Defendants: Jack W Wallace, Jr., LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL, Montgomery, AL.



The plaintiff, Arthur Lee Bonner, has filed a pro se amended complaint pursuant to 42 U.S.C. § 1983 alleging rights, privileges, or immunities afforded him under the Constitution or laws of the United States were abridged during his incarceration at Bibb Correctional Facility. (Doc. 16).[1] The plaintiff names as defendants Lieutenant Kenny Waver and Correctional Officer Orlanda Walker.[2] The plaintiff seeks injunctive relief.

In accordance with the usual practices of this court and 28 U.S.C. § 636(b)(1), the complaint was referred to a magistrate judge for a preliminary report and recommendation. See McCarthy v. Bronson, 500 U.S. 136, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991).

I. Procedural History

On January 14, 2014, the previously assigned magistrate judge entered an order for special report directing the clerk to forward a copy of the amended complaint to the defendants and the defendants to file a special report addressing the factual allegations contained in the amended complaint. (Doc. 17). The magistrate judge advised the defendants their special report should be accompanied by sworn statements and, if appropriate, would be considered as a motion for summary judgment filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Id.). By the same order, the magistrate judge notified the plaintiff that after he received a copy of the defendants' special report, he could file affidavits to rebut the report. (Id.).

On April 16, 2014, the defendants filed a special report accompanied by affidavits and institutional documents. (Doc. 24). The undersigned notified the plaintiff the defendants' special report would be construed as a motion for summary judgment and that he would have twenty (20) days to respond by filing affidavits and/or other materials. (Doc. 25). The undersigned further advised the plaintiff of the consequences of any default or failure to comply with Rule 56 of the Federal Rules of Civil Procedure. Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985). The plaintiff has failed to respond to the defendants' motion for summary judgment.

II. Summary Judgment Standard

Summary judgment may be granted only if the moving party establishes there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1989). A court must view the evidence in a light most favorable to the non-moving party and must draw all reasonable inferences against the moving party. See Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000). Unless the plaintiff, who carries the ultimate burden of proving his action, is able to show some evidence with respect to each element of his claim, all other issues of fact become immaterial, and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Bennett v. Parker, 898 F.2d 1530, 1532-33 (11th Cir. 1990).

As the Eleventh Circuit Court of Appeals has explained:

Facts in dispute cease to be " material" facts when the plaintiff fails to establish a prime facie case. " In such a situation, there can be 'no genuine issue as to any material fact, ' since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial." Thus, under such circumstances, the public official is entitled to judgment as a matter of law, because the plaintiff has failed to carry the burden of proof. This rule facilitates the dismissal of factually unsupported claims prior to trial.

Bennett v. Parker, 898 F.2d at 1532 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). " [S]pecific facts" pled in a pro se plaintiff's sworn complaint must be considered in opposition to summary judgment. See Perry v. Thompson, 786 F.2d 1093, 1095 (11th Cir. 1986).

III. Summary Judgment Facts

For purposes of summary judgment, the following facts are undisputed or, if disputed, taken in a light most favorable to the plaintiff.[3]

On June 6, 2013 at approximately 8:10 p.m., the defendants escorted the plaintiff to the Health Care Unit (" HCU") with complaints of chest pain. (Doc. 16 at 3; Doc. 24-2 at 1). Cynthia Milhouse, LPN, examined the plaintiff and concluded he had no medical problem. (Doc. 16 at 3; Doc. 24-1 at 1). The plaintiff told Officer Walker to call for Lieutenant Waver because the plaintiff did not intend to leave the HCU without getting treatment for his chest pain. (Doc. 16 at 3).

When Lieutenant Waver arrived, he, Nurse Milhouse, and Officer Walker went into a room and talked. (Id.). Lieutenant Waver returned and informed the plaintiff Nurse Milhouse did not want to see him. (Id.). The plaintiff asked Nurse Milhouse for her full name so he could file a grievance against her. (Id.). The plaintiff became angry and told Nurse Milhouse, " F**k you, b***h." (Doc. 16 at 3; Doc. 24-1 at 1).

Lieutenant Waver and Officer Walker began choking and slapping the plaintiff. (Doc. 16 at 3-4). Lieutenant Waver and Officer Walker also threw the plaintiff into a gate in the HCU. (Id. at 4). The plaintiff was handcuffed throughout the assault. (Id.). Lieutenant Waver and Officer Walker escorted the plaintiff to the shift office, where they continued to beat him. (Id.).[4]

Due to the plaintiff's allegations the defendants assaulted him, Sergeant Cedric Cameron escorted the plaintiff to the HCU for a body chart at approximately 8:25 p.m. (Doc. 24-3). Medical staff noted the plaintiff was alert and oriented, his skin was warm and dry, and his respiration was even and unlabored. (Doc. 24-4). Additionally, the plaintiff's lungs were clear, and his abdomen was soft and non-distended. (Id.). Medical staff noted no visible cuts, scrapes, or bruises and observed the plaintiff was not in acute distress. (Id.).

Prison officials charged the plaintiff with insubordination and disorderly conduct. (Doc. 24-5 at 1-6). The plaintiff pled guilty to both charges. (Id. at 1, 4). For each charge, the plaintiff received disciplinary segregation for thirty (30) days and loss of canteen, telephone, and visiting privileges. (Id. at 2, 5).

IV. Discussion

In his amended complaint, the plaintiff alleges Lieutenant Waver and Officer Walker used excessive force against him in violation of the Eighth Amendment at the Bibb Correctional Facility on June 6, 2013. The plaintiff seeks only injunctive relief. Specifically, he requests to be transferred to another prison. (Doc. 16 at 4).[5]

At the time the plaintiff filed his complaint, he was incarcerated at Bibb Correctional Facility. (Doc. 1 at 2). However, the plaintiff has since been transferred to Holman Correctional Facility in Atmore, Alabama. (Doc. 21). " Absent class certification, an inmate's claim for injunctive and declaratory relief in a section 1983 action fails to present a case or controversy once the inmate has been transferred." Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir. 1985). " Past exposure to illegal conduct does not in itself show a pending case or controversy regarding injunctive relief if unaccompanied by any continuing, present injury or real and immediate threat of repeated injury." Cotterall v. Paul, 755 F.2d 777, 780 (11th Cir. 1985).

Because the plaintiff is no longer incarcerated at Bibb Correctional Facility and has alleged no present injury or immediate threat of repeated injury concerning the defendants, his request for injunctive relief is moot. Therefore, the plaintiff's Eighth Amendment excessive force claims against the defendants are due to be dismissed as moot.

V. Recommendation and Notice of Right to Object

For the foregoing reasons, the undersigned RECOMMENDS that the plaintiff's amended complaint (Doc. 16) be DISMISSED WITHOUT PREJUDICE because his request for injunctive relief is MOOT. The undersigned further RECOMMENDS that the defendants' motion for summary judgment (Doc. 24) be DENIED as MOOT.

Any party who objects to this report and recommendation must, within fourteen (14) days of the date on which it is entered, file specific written objections with the clerk of this court. Any objections to the failure of the magistrate judge to address any contention raised in the petition also must 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, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), reh'g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982) ( en banc ). In order to challenge the findings of the magistrate judge, a party must file with the clerk of the court written objections which shall specifically identify the portions of the proposed findings and recommendation to which objection is made and the specific basis for objection. A copy of the objections must be served upon all other parties to the action.

Upon receipt of objections meeting the specificity requirement set out above, a United States District Judge shall 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. The district judge, however, need conduct a hearing only in his discretion or if required by law, and may consider the record developed before the magistrate judge, making his own determination on the basis of that record. The district judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

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 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.

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