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Oliver v. Price

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

May 2, 2017

MICHAEL DARNELL OLIVER, Plaintiff,
v.
WARDEN CHERYL PRICE, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          VIRGINIA EMERSON HOPKINS, United States District Judge

         I. Introduction

         The magistrate judge filed a report and recommendation on February 28, 2017. (Doc. 70). The magistrate judge recommended that defendants Iliff and Clum-Cordingley's motion for summary judgment on the plaintiff's Eighth Amendment medical claims be construed as a motion to dismiss for failure to exhaust administrative remedies under 42 U.S.C. § 1997e(a), and that the motion be granted and the claims dismissed without prejudice. (Id.). The magistrate judge further recommended that the Alabama Department of Corrections (“ADOC”) defendants' motion for summary judgment be granted and the following claims be dismissed with prejudice: (1) the plaintiff's Eighth Amendment medical claims against defendants Sanders, Eads, Nath, Washington, and Barber; (2) the plaintiff's Eighth Amendment excessive force claims against defendants Miree, Baldwin, White, Snelson, Steed, and Voyles; (3) the plaintiff's Eighth Amendment conditions-of-confinement claims against defendants Nath, Eads, Sanders, and Steed; (4) the plaintiff's Eighth Amendment conditions-of-confinement claims against defendants Price, Miree, and White due to his placement in dry/reduced content cell status from September 10, 2014 to December 16, 2014; (5) the plaintiff's First Amendment access to courts and free speech claims against defendants Price and Miree; and (6) the plaintiff's Fourteenth Amendment due process claims against defendants Nath, Steed, and Miree. (Id.). On March 21, 2017, the court received the plaintiff's objections to the report and recommendation. (Doc. 73).

         II. Standards

         A. De Novo Review of Objections to Magistrate Judge's Findings

         Before the court engages in its own analysis, it is important to emphasize that the magistrate judge is not making any final factual determinations or rulings on summary judgment, but rather only providing recommendations. Instead, the undersigned has reviewed de novo those portions of the record that relate to the parties' objections and separately and independently determined the correctness of any objected-to findings and recommendations.

         This accepted process is set forth statutorily in 28 U.S.C. § 636, which states in part that:

(b) (1) Notwithstanding any provision of law to the contrary-
(A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.
(B) a judge may also designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement.
(C) the magistrate judge shall file his proposed findings and recommendations under subparagraph (B) with the court and a copy shall forthwith be mailed to all parties.
Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.

28 U.S.C. § 636(b) (footnotes omitted) (emphasis by underlining added).

         Regarding the de novo review requirement in particular, the district court's obligation is to independently review those portions of the record to which objections are made, as opposed to reviewing the entire record. See, e.g., Washington v. Estelle, 648 F.2d 276, 282 (5th Cir. 1981) (“Both in his brief and at oral argument, Washington maintains that the District Court erred in reviewing de novo only the objected to portion of the magistrate's findings, rather than reviewing the entire record de novo.”);[1] id. (“Based on the language of this order, we are convinced that the District Judge sufficiently complied with the act which requires “‘a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.'”) (quoting 28 U.S.C. § 636(b)(1)(C)).[2]

         Additionally, it is incumbent upon the parties to timely raise any objections that they may have regarding a magistrate judge's findings contained in the report and recommendation, as the failure to do so subsequently waives or abandons the issue even if such matter was presented at the magistrate judge level. See, e.g., United States v. Pilati, 627 F.3d 1360, 1365 (11th Cir. 2010) (“While Pilati raised the issue of not being convicted of a qualifying offense before the magistrate judge, he did not raise this issue in his appeal to the district court. Thus, this argument has been waived or abandoned by his failure to raise it on appeal to the district court.”) (emphasis added).

         B. Qualified Immunity

         All defendants assert that qualified immunity bars the plaintiff's Eighth Amendment claims brought against them in their individual capacities. “The defense of qualified immunity completely protects government officials performing discretionary functions from suit in their individual capacities unless their conduct violates ‘clearly established statutory or constitutional rights of which a reasonable person would have known.'” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003) (internal quotation marks omitted) (quoting Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th Cir. 2003)). “To receive qualified immunity, a government official first must prove that he was acting within his discretionary authority.” Id.

         This is a two-part test. Under the first step, “the defendant must [prove that he or she was] performing a function that, but for the alleged constitutional infirmity, would have fallen within his legitimate job description.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004). Next, the defendant must prove that he or she was “executing that job-related function.” Id. at 1267. “Once a defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that the defendant is not entitled to qualified immunity.” Cottone, 326 F.3d at 1358.[3]

         Until 2009, the Supreme Court had required a two-part inquiry to determine the applicability of qualified immunity, as established by Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001), modified in application by Pearson v. Callahan, 555 U.S. 223, 227, 129 S.Ct. 808, 813, 172 L.Ed.2d 565 (2009) (holding that “Saucier procedure should not be regarded as an inflexible requirement”). Under the Saucier test, “[t]he threshold inquiry a court must undertake in a qualified immunity analysis is whether [the] plaintiff's allegations, if true, establish a constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736, 122 S.Ct. 2508, 2513, 153 L.Ed.2d 666 (2002).

         If, under the plaintiff's allegations, the defendants would have violated a constitutional right, “the next, sequential step is to ask whether the right was clearly established.” Cottone, 326 F.3d at 1358 (quoting Saucier, 533 U.S. at 201, 121 S.Ct. at 2156). The “clearly established” requirement is designed to assure that officers have fair notice of the conduct which is proscribed. Hope, 536 U.S. at 739, 122 S.Ct. at 2515. This second inquiry ensures “that before they are subjected to suit, officers are on notice their conduct is unlawful.” Saucier, 533 U.S. at 206, 121 S.Ct. at 2158.

         The “unlawfulness must be apparent” under preexisting law.[4] Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (citing Malley v. Briggs, 475 U.S. 335, 344-45, 106 S.Ct. 1092, 1097-98, 89 L.Ed.2d 271 (1986)). Therefore, a temporal requirement exists related to this inquiry. More particularly, a plaintiff must show that a reasonable public officer would not have believed her actions to be lawful in light of law that was clearly established at the time of the purported violation. See Anderson, 483 U.S. at 639, 107 S.Ct. at 3038 (“[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness' of the action[, ] assessed in light of the legal rules that were ‘clearly established' at the time it was taken[.]”) (emphasis added) (citation omitted); Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 599, 160 L.Ed.2d 583 (2004) (“If the law at that time did not clearly establish that the officer's conduct would violate the Constitution, the officer should not be subject to liability or, indeed, even the burdens of litigation.”) (emphasis added); Brosseau, 543 U.S. at 198, 125 S.Ct. at 599 (“Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct.”) (emphasis added); see also Johnson v. Clifton, 74 F.3d 1087, 1093 (11th Cir. 1996) (“We know of no [preexisting] case which might have clearly told Clifton that he could not take the disciplinary action indicated by an investigation which was initiated before he even knew about the allegedly protected speech, and in circumstances where the public concern implication was doubtful.”).

         However, the Saucier framework was made non-mandatory by the Supreme Court in Pearson, 555 U.S. at 236, 129 S.Ct. at 818, in which the Court concluded that, “while the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory.” Thus, “judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Id.

         Despite the Supreme Court's modification of Saucier's analytical process, the substantive analysis remains unchanged; an officer is entitled to qualified immunity protection as long as he “could have believed” his conduct was lawful. Hunter v. Bryan, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991). Therefore, to deny immunity, a plaintiff must affirmatively demonstrate that “no reasonable competent officer would have” acted as the public official did. Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986).

         C. Nominal Damages

         “Under the [Prison Litigation Reform Act of 1995] and our caselaw, an incarcerated plaintiff cannot recover either compensatory or punitive damages for constitutional violations unless he can demonstrate a (more than de minimis) physical injury.” Brooks v. Warden, 800 F.3d 1295, 1307 (11th Cir. 2015). However, the failure of a prisoner to substantiate a physical injury connected to a constitutional claim arising under the Eighth Amendment does not preclude a recovery of nominal damages. As the Eleventh Circuit held in a conditions-of-confinement case involving a prisoner's stay at a hospital:

Because Brooks has not alleged any physical injury resulting from his hospital stay, under the Prison Litigation Reform Act [PLRA], 42 U.S.C. § 1997e(e), he cannot recover compensatory or punitive damages. We do hold today, however, that Brooks can proceed with his claim for nominal damages for a violation of his Eighth Amendment rights, and we remand to the district court for further proceedings consistent with this opinion.

Brooks, 800 F.3d at 1298 (emphasis added); see also Id. at 1308 (“Our conclusion that nominal damages may be sought by an inmate for constitutional injury is in accord with the determination made by every other sister circuit to consider this issue.” (citing collection of decisions reached by the First, Second, Third, Fifth, Seventh, Eighth, Ninth, and Tenth Circuits)).

         The Eleventh Circuit has explained that “nominal damages serve to ‘vindicate [ ] deprivations of certain ‘absolute' rights that are not shown to have caused actual injury.'” Brooks, 800 F.3d at 1308 (quoting Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978)); see Hughes v. Lott, 350 F.3d 1157, 1162 (11th Cir. 2003) (“Nominal damages are appropriate if a plaintiff establishes a violation of a fundamental constitutional right, even if he cannot prove actual injury sufficient to entitle him to compensatory damages.”); see also Kyle v. Patterson, 196 F.3d 695, 697 (7th Cir. 1999) (“[N]ominal damages, of which $1 is the norm, are an appropriate means of vindicating rights whose deprivation has not caused actual, provable injury.”) (Kyle cited with approval in Quainoo v. City of Huntsville, 611 F.App'x 953, 955 (11th Cir. 2015)).

         While the plaintiff has not expressly asked for nominal damages in his Statement of Claim, he has listed numerous other categories of damages, including compensatory, and used the term “without limitations” in describing the relief that he is seeking from the court. (Doc. 1 at 4).[5] Because this court is obligated to liberally construe a pro se party's pleading, it finds that a broad reading of the plaintiff's Statement of Claim includes a request to award him nominal damages. See, e.g., Boxer X v. Donald, 169 F.App'x 555, 559 (11th Cir. 2006) (“We conclude that Boxer did seek nominal damages when his complaint requested compensatory damages and ‘any other relief the court deem[s] appropriate.'”) (emphasis added).

         III. Analysis

         A. Magistrate Judge's February 6, 2017 Order

         Before considering the plaintiff's objections, the court must address the ADOC defendants' failure to comply with the magistrate judge's order directing them to make the contents of the video of the plaintiff's cell extraction available to the plaintiff for viewing. On February 6, 2017, the magistrate judge entered an order noting that the ADOC defendants referenced a video of the plaintiff's September 11, 2014 cell extraction in their motion for summary judgment, but failed to submit the video to the court. (Doc. 67 at 1-2). The magistrate judge ordered the ADOC defendants to file a copy of the video with the court by February 8, 2017. (Id. at 2). The magistrate judge further ordered the ADOC defendants to make the contents of the video available to the plaintiff for viewing in a restricted and protected area by February 13, 2017. (Id.). Based on this order to allow the plaintiff to view the cell extraction video by February 13, 2017, the magistrate judge directed the plaintiff to supplement his response to the defendants' motion for summary judgment by February 20, 2017. (Doc. 69). The court did not receive a supplemental response from the plaintiff within this time, and the magistrate judge filed his report and recommendation on February 28, 2017. (Doc. 70).

         On March 13, 2017, the court received a response from the plaintiff notifying the court that the ADOC defendants did not make the video available to him for viewing on or before February 13, 2017.[6] (Doc. 71 at 1-2). On March 17, 2017, the magistrate judge ordered the ADOC defendants to notify the court whether they complied with the February 6, 2017 order to make the video available to the plaintiff by February 13, 2017. (Doc. 72 at 1). On March 21, 2017, the ADOC defendants responded that, due to an oversight, the plaintiff did not view the video until February 23, 2017. (Doc. 74 at 1). Counsel for the ADOC defendants states that “[t]he most likely cause was a combination of a brief delay on counsel's part in getting the order to the warden and then a little longer delay on the prison staff in giving [the plaintiff] an opportunity to view the video.” (Id.). The ADOC defendants' failure to comply with the magistrate judge's order to make the video available to the plaintiff for viewing by February 13, 2017, interfered with the plaintiff's ability to meet the magistrate judge's deadline to supplement his response to summary judgment by February 20, 2017. (Doc. 69). At the very least, the defendants should have notified the court that they could not comply with the magistrate judge's order within the time provided and requested an extension of time.

         Notwithstanding the foregoing, the court finds the plaintiff has not been prejudiced by the delay in viewing the video. The plaintiff does not dispute that he was shown the video on or about February 23, 2017, and, therefore, has had sufficient time to file either a response or objections thereto. In particular, the plaintiff had nearly one month to challenge the video's authenticity or otherwise raise an objection related to its contents from the date on which he viewed the video to March 21, 2017, the date on which when he filed his objections (Doc. 73) to the magistrate judge's report and recommendation. However, none of the plaintiff's objections concern the video. Additionally, since viewing the video, the plaintiff has not submitted any separate motion or other filing questioning its authenticity. With this preliminary procedural issue addressed, the court turns to the merits of plaintiff's objections.

         B. Failure to Exhaust ...


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