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Dennis v. McKenzie

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

February 23, 2018

ERIK MAURICE DENNIS AIS# 233138, Plaintiff,
v.
SGT. BRANDON MCKENZIE, et al., Defendants.

          REPORT AND RECOMMENDATION

          SONJA F. BIVINS, UNITED STATES MAGISTRATE JUDGE

         Erik Maurice Dennis, 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(a)(2)(R), and is now before the undersigned on Defendants Sergeant Brandon McKenzie and Sergeant Jesse W. Wilson's Motion for Summary Judgment of (Doc. 13). For the reasons stated below, it is recommended that Defendants' Motion for Summary Judgment be DENIED on all counts and that an evidentiary hearing be scheduled to address Plaintiff's claim.

         I. Background.

         Plaintiff Dennis alleges in his complaint and sworn affidavit that, on January 27, 2015, while incarcerated at Fountain Correctional Facility, he was placed in handcuffs by Defendants Sergeant Brandon McKenzie (“McKenzie”) and Sergeant Jesse W. Wilson (“Wilson”) and escorted by the officers to the health care unit to receive a body chart.[1](Doc. 1 at 4, 8). Dennis admits being “upset” and “verbally aggressive” to the officers while walking to the infirmary unit, and alleges that in response to his comments, Defendant McKenzie told him, “[S]hut the hell up; I'm tired of your mouth” and then slammed him into the wall and slung him onto the floor. (Id. at 8). Dennis claims that, while lying on the ground of the infirmary hallway with his hands cuffed behind his back, Defendants McKenzie and Wilson kicked and punched him in the face, despite his screams for them to stop, causing him to bleed from his mouth, nose, and head. (Id. at 5, 8). He further alleges that Defendants then grabbed him by his jacket, dragged him down the hallway bleeding, and ordered an inmate runner to “hurry up and get that blood off the floor.” (Id. at 8). Dennis asserts that he continued to yell to Defendants, “[Y]'all trying to kill me[, ]” and that, in response, Defendant McKenzie told him, “You need to learn to watch your mouth and you wouldn't be bleeding. I told you shut the hell up.” (Id.).

         According to Dennis, a nurse in the health care unit cleaned the blood from his face, and then released him back to the segregation unit. (Id.). Dennis claims that subsequent thereto, he complained to officers that he could not see, that he was dizzy, and that he was in pain. (Id.). He further contends that after lying down on his bed for several hours, he stood and immediately lost consciousness and fell to the floor. (Id.). Dennis was quickly transported via ambulance to the local hospital where it was determined he required airlifting to USA Hospital in Mobile, Alabama, for treatment. (Id.). Dennis claims he regained consciousness just before he was transported by helicopter to USA Hospital. (Id. at 9). Dennis further claims that the medical staff at USA Hospital determined that he suffered a fractured eye socket with loss of vision and that surgery was performed to repair his left eye socket. (Id.). Dennis also contends that he continues to suffer pain and impaired vision in his left eye, and that he continues to cough up blood. (Id. at 4, 9).

         Dennis asserts a claim of excessive force, in violation of the Eighth Amendment, against Defendants McKenzie and Wilson. (Doc. 1). In their Answer and Special Report (Docs. 11, 12), Defendants deny Dennis' allegations to the extent that he claims his rights were violated and that they assaulted him. (Id.) Defendants also assert the defenses of absolute and qualified immunity and failure to state a claim.[2] (Docs. 11, 12). In support of their defenses, Defendants have submitted affidavits, incident reports, medical records, photographs of Dennis' injuries, and his disciplinary summary sheet. (Docs. 12-1 - 12-6). On April 28, 2017, the Court notified the parties that Defendants' Answer, Special Report, and supporting materials were being converted into a Motion for Summary Judgment and afforded the parties an opportunity to submit briefs and other materials in support of, or opposition to, the motion. (Doc. 13) . Dennis filed a response to the conversion order. (Doc. 14 at 1). He articulated his desire to continue with the litigation, but did not address the issues raised in Defendants' Special Report and supporting materials.[3] (Id.). The Summary Judgment Motion is now ripe and ready for consideration.

         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) ("The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment."); Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 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.'").

         The party seeking summary judgment has the initial responsibility of informing the court of the basis for the motion and of establishing, based upon the discovery instruments outlined in Rule 56(c), that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); see also Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1313 (11th Cir. 2007) ("The moving party bears the initial burden of showing the court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial."). Once this initial demonstration is made, the "responsibility then devolves upon the non-movant to show the existence of a genuine issue . . . [of] material fact.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993); see also Allen, supra, at 1314 ("'When a moving party has discharged its burden, the non-moving party must then "go beyond the pleadings, " and show by its own affidavits, or by "depositions, answers to interrogatories, and admissions on file, " designate specific facts showing that there is a genuine issue for trial.'") (internal citations omitted); see Comer v. City of Palm Bay, Fla., 265 F.3d 1186, 1192 (11th Cir. 2001) ("Once the moving party discharges its initial burden of showing that there is an absence of evidence to support the non-moving party's case, the non-moving party must specify facts proving the existence of a genuine issue of material fact for trial confirmed by affidavits, 'depositions, answers to interrogatories, and admissions on file.'") (internal quotations and citations omitted).

         In considering whether Defendants are entitled to summary judgment in this action, the undersigned has viewed the facts in the light most favorable to Dennis. Comer, supra, 265 F.3d at 1192 ("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."). Additionally, while the Court is required to liberally construe a pro se litigant's pleadings, the Court does not have “license to serve as de facto counsel for a party . . . or to rewrite an otherwise deficient pleading in order to sustain an action.” GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (citations omitted), overruled on other grounds by Randall v. Scott, 610 F.3d 701 (11th Cir. 2010); see also Giles v. Wal-Mart Distrib. Ctr., 359 F. App'x 91, 93 (11th Cir. 2009) (internal citations and quotations omitted) (“Although pro se pleadings are held to a less strict standard than pleadings filed by lawyers and thus are construed liberally, this liberal construction does not give a court license to serve as de facto counsel for a party, or to rewrite an otherwise deficient pleading in order to sustain an action.”). Finally, 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. 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).[4]

         III. Analysis.

         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). To establish an Eighth Amendment excessive force claim against Defendants, Dennis 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 & 8, 112 S.Ct. 995, 999, 117 L.Ed.2d 156 (1992) (citations omitted). The question of "whether a prison guard's application of force is actionable turns on whether that force was applied in a good faith effort to maintain or restore discipline or maliciously or sadistically for the very purpose of causing harm." Bozeman v. Orum, 422 F.3d 1265, 1271 (11th Cir. 2005) (per curiam) (citing Whitley v. Albers, 475 U.S. 312, 320-321, 106 S.Ct. 1078, 1085, 89 L.Ed.2d 251 (1986)).

         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 force'; (3) 'the relationship between that need and the amount of force used'; (4) 'any efforts made to temper the severity of a forceful response'; and (5) 'the extent of the threat to the safety of staff and inmates, as reasonably perceived by the reasonable officials on the basis of acts known to them.").

         Notably, 'not . . . every malevolent touch by a prison guard gives rise to a federal cause of action." Hudson, 503 U.S. at 9. Rather, the use of force must be "gratuitous or disproportionate" and must have "no object but to inflict pain." Skritch v. Thornton, 280 F.3d 1295, 1304 (11th Cir. 2002). "It is obduracy and wantonness, not inadvertence or error in good faith that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause.” Whitley, 475 U.S. at 319. "The infliction of pain in the course of a prison security measure, therefore, does not amount to cruel and unusual punishment simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable, and hence unnecessary in the strict sense." Id. Further, an excessive force claim "necessarily excludes from constitutional ...


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