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Smith v. G. Salter

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

February 8, 2018

STEVEN SMITH, #184725, Plaintiff,
v.
G. SALTER, et al., Defendants.

          REPORT AND RECOMMENDATION

          KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE

         Plaintiff Steven Smith, an Alabama prison inmate proceeding pro se and in forma pauperis, filed a complaint under 42 U.S.C. § 1983. This action has been referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(R). After careful review, it is recommended that Defendant Corizon, LLC's Motion for Summary Judgment be GRANTED. It is further recommended that the Motion for Summary Judgment of Defendants, Salter, Bolar, Brown, and Dailey, be GRANTED, and that Plaintiff Smith's action be dismissed with prejudice.

         I. Summary of Allegations.

         Smith alleges in the complaint that on June 11, 2016, he was assaulted and stabbed by another inmate in Holman Prison's B dorm when no guard was present at his stationed post. (Doc. 1 at 4). The guard, Officer Salter, is alleged to have been outside the dorm gate at the time the attack occurred. (Id. at 4-5). Smith claims that the attacker (nicknamed “Toe Toe”) assaulted him from behind with a knife (stabbing his left shoulder) and chased him with a broken broomstick. (Id. at 4). Smith ran from the assailant, jumping the wall in the center of the dorm, to get to the gated entrance to the dorm. (Id. at 5). As soon as Smith approached the entrance gate, the cubicle officer rolled the door open, and Smith ran out of the dorm. (Doc. 33 at 19). As Smith exited the dorm, he alleges he saw Officer Salter and Lieutenant Bolar standing outside of the bars looking into the dorm. (Id.). Smith was immediately taken to the prison's infirmary, where the examination revealed a stab wound to his left shoulder and abrasions to his arms and legs. (Doc. 30-9 at 13). Smith was then transferred to Atmore Community Hospital's Emergency Room, where xrays of his shoulder confirmed there was no fracture, dislocation, or joint damage and that the puncture wound did not require sutures. (Doc. 30-9 at 37, 39-40). Smith claims the prescribed treatment for his injury was to daily clean and bandage the stab wound for 25 days. (Id.). Smith alleges, however, that he only received wound treatment eleven (11) days out of the prescribed twenty-five (25) days, resulting in the development of an infection in the stab wound. (Id.).

         One of the days Smith missed his wound treatment was July 4, 2016. Smith alleges on this date he was lured out of his cell by Officer Dailey and into the shift officer where Lieutenant Brown assaulted him. (Doc. 24 at 1). Smith asserts that while he was handcuffed with his hands behind his back, Lieutenant Brown knocked him backwards, where he fell over a “locker box.” (Doc. 1 at 10). Officer Daily helped Smith up, but following the alleged assault, Smith was not taken to the infirmary for a body chart to check for injuries from his fall or for the scheduled wound cleaning. (Id.; Doc. 33 at 21-22).

         Smith brings this suit against Defendants for violations of the Eighth Amendment of the constitution.[1] Smith claims Gavin Salter and Regina Bolar are liable for failing to protect him from the inmate attack on June 11, 2016; Corizon, LLC is liable for its failure to provide adequate medical care; Deveron Brown for using excessive force against him on July 4, 2016 and Ervin Dailey for his failure to intervene in the assault by Lieutenant Brown. (Docs. 1, 24). For relief, Smith requests $600, 000.00 in punitive damages and $10, 000.00 in compensatory damages from each defendant in their individual and official capacities. (Doc. 1 at 7).

         Defendants have answered the suit and denied all allegations against them and asserted immunity defenses.[2] (Docs. 10, 30). In combination with their Answer, Defendants have court on July 21, 2017, that the claims against these defendants should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). (See Docs. 21, 22). submitted Special Reports, which include evidentiary support in the form of affidavits, medical records, and prison records. (Docs. 17, 30). The court has converted Defendants' pleadings into motions for summary judgment, and Smith has responded to the motions. (See Docs. 23, 31, 33). These motions are now ripe for consideration. (Docs. 23, 31).

         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)[3]; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 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 (2009) ("[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.'"(emphasis omitted)).

         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." Celotex, 477 U.S. 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., 926 F.Supp.2d 1286, 1289-90 (S.D. Ala. Jan. 29, 2013) (citations omitted).

         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 metaphysical doubt as to material facts." Garczynski, 573 F.3d at 1165 (internal citations omitted). A "mere scintilla" of evidence is insufficient; the nonmoving party must produce substantial evidence in order to defeat a motion for summary judgment. Id. 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.Appx. 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 adopt the contradicted allegations." (citations omitted) (unpublished)).[4]

         III. Discussion.

         "In order for a plaintiff to establish a claim under 42 U.S.C. § 1983, he must prove (1) a violation of a constitutional right, and (2) that the alleged violation was committed by a person acting under the color of state law." Martinez v. Burns, 459 Fed.Appx. 849, 850-851 (11th Cir. 2012) (citing Holmes v. Crosby, 418 F.3d 1256, 1258 (11th Cir. 2005)). The parties do not dispute that Defendants were acting under color of state law, and Smith seeks redress pursuant to the Eighth Amendment.

         "The Eighth Amendment, applicable to the states through the Fourteenth Amendment, governs the conditions under which convicted prisoners are confined and the treatment they receive while in prison." Id. (citing Farrow v. West, 320 F.3d 1235, 1242 (11th Cir. 2003); Bass v. Perrin, 170 F.3d 1312, 1316 (11th Cir. 1999)). The Amendment states that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. "'[T]he unnecessary and wanton infliction of pain ... constitutes cruel and unusual punishment forbidden by the Eighth Amendment.'" Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (some internal quotation marks omitted). "Among 'unnecessary and wanton' inflictions of pain are those that are 'totally without penological justification.'" Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981).

         For prisoners, "[t]he Eighth Amendment can give rise to claims challenging specific conditions of confinement, the excessive use of force, and the deliberate indifference to a prisoner's serious medical needs." Thomas v. Bryant, 614 F.3d 1288, 1303 (11th Cir. 2010) (citations omitted). Additionally, "[b]eyond just restraining prison officials from inflicting 'cruel and unusual punishments' upon inmates, '[t]he Amendment also imposes duties on these officials, who must ... "take reasonable measures to guarantee the safety of the inmates."'" Bowen v. Warden Baldwin State Prison, 826 F.3d 1312, 1319-20 (11th Cir. 2016) (quoting Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)).

         A. Failure to Protect Claim.

         A prison official's duty under the Eighth Amendment is to ensure "reasonable safety, " "a standard that incorporates due regard for prison officials' 'unenviable task of keeping dangerous men in safe custody under humane conditions.'" Farmer, 511 U.S. at 844-45 (citations omitted). However, "a prison custodian is not the guarantor of a prisoner's safety", Purcell ex rel. Morgan v. Toombs Cnty., 400 F.3d 1313, 1321 (11th Cir. 2005) (citation omitted), and "[i]t is not[] every injury suffered by one prisoner at the hands of another that translates into constitutional liability for prison officials responsible for the victim's safety." Farmer, 511 U.S. at 834. Prison officials must "take reasonable measures to guarantee the safety of the inmates", Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984), but there is no liability for "an official's failure to alleviate a significant risk that he should have perceived but did not. . . ." Farmer, 511 U.S. at 838. It is not enough that an inmate proves that the defendant should have known of the risk, but did not, as actual knowledge is the key. See, e.g., Cottrell v. Caldwell, 85 F.3d 1480, 1491 (11th Cir. 1996).

         Smith claims that the lack of Defendant Salter's security presence in his dorm on June 11, 2016, caused his attack;[5] thus, Smith must show that Defendant Salter not only left his post but that he did so with the knowledge that Smith was at risk of a serious injury. Taking Smith's allegations as true, there is simply no probative evidence sufficient to show deliberate indifference of “an objectively substantial serious risk of harm” posed by inmate “Toe Toe” (or any inmate) to Smith prior to the attack on June 11, 2016. Cf., McGill v. Duckworth, 944 F.2d 344, 349 (7th Cir. 1991), overruled in part on other grounds by Farmer, 511 U.S. at 828 (A plaintiff "normally proves actual knowledge of impending harm by showing that he complained to prison officials about a specific threat to his safety."). Specifically, Smith presents no evidence that even he was aware or fearful of a possible attack at the time it occurred.[6]Additionally, Smith has failed to show Defendant Salter "had subjective knowledge of a generalized, substantial risk of serious harm from inmate violence." Hale v. Tallapoosa Cnty., 50 F.3d 1579, 1583 (11th Cir. 1995). In fact, the record is void of facts proving or indicating any subjective knowledge or recklessness on the part of Defendants Salter and Bolar. And, it is incumbent on Smith to make such an evidentiary showing that a defendant drew the inference and "knowingly or recklessly 'disregard[ed the] risk [of harm] by failing to take reasonable measures to abate it, '" Hale, 50 F.3d at 1583 (quoting Farmer, 511 U.S. at 848, 114 S.Ct. at 1984), as "[m]erely negligent failure to protect an inmate from attack does not justify liability under § 1983. . . . The known risk of injury must be a strong likelihood, rather than a mere possibility before a guard's failure to act can constitute deliberate indifference." Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir.) (citations and internal quotations omitted), 496 U.S. 928, 110 S.Ct. 2624, 110 L.Ed.2d 645 (1990). Accordingly, Smith's failure to protect claim is not actionable under § 1983, and it is recommended that summary judgment be granted in favor of Defendant Salter on this claim.

         B. Failure to Intervene Claim.

         In his complaint, Smith also claims that Defendants Salter and Bolar are liable for failing to protect him when they watched him being attacked and failed to act. Specifically, Smith alleges:

Bolar stood outside B dorm with Officer Salter and just watched the inmate assault me. They never called a code nor did they ever apprehend the inmate.

(Doc. 1 at 5). As previously stated, however, the record is void of facts to establish a failure to protect claim. Pro se pleadings, however, are to be read liberally to determine “whether jurisdiction to consider[them] can be founded on a legally justifiable base.” Fernandez v. United States, 941 F.2d 1488, 1491 (11th Cir.1991); see also United States v. Jordan, 915 F.2d 622, 624-25 (11th Cir.1990) (The Court has an “obligation to look behind the label of a motion filed by a pro se inmate and determine whether the motion is, in effect, cognizable under a different remedial statutory framework.”). Based on a reading of Smith's allegations, the undersigned determines that he is attempting to assert a claim against Defendants for their alleged failure to intervene in the attack; therefore, the undersigned will review the claim as such.

         The test put forth in this Circuit to establish if liability may attach to an officer who fails to intervene in an inmate-on-inmate fight is whether: 1) the inmate's physical assault created a substantial, objective risk of injury, (2) of which a defendant is subjectively aware, (3) the defendant was in a position to intervene, and (4) the defendant did not ...


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