United States District Court, S.D. Alabama, Southern Division
ANTONIO R. SPENCER, Plaintiff,
CAPTAIN D. FAILS, et. al ., Defendants.
REPORT AND RECOMMENDATION
F. BIVINS UNITED STATES MAGISTRATE JUDGE
Antonio R. Spencer, 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(a)(2)(R), and is now before
the undersigned on Defendant's Motion for Summary
Judgment (Doc. 53). After careful review of the pleadings,
and for the reasons set forth below, it is ordered that the
motion be GRANTED in part and
DENIED in part.
asserts claims against Captain D. Fails, Correctional Officer
E. Duren, Officer Ezell, and Officer Madison for excessive
force and failure to intervene; and against Drs. George Kouns
and Hugh Hood for denial of medical treatment, in violation
of the Eighth Amendment. In his complaint, Spencer alleges
that while housed at Holman Correctional Facility
(“Holman”), on the morning of September 8, 2015,
Defendants removed him from his dormitory bed, secured him in
handcuffs behind his back, and escorted him to the main hall
for questioning about an inmate-on-inmate attack. (Doc. 8 at
4-5). Spencer avers he had no knowledge of the inmate attack
and was compliant. (Id. at 5). Following the
inquiries, Captain Fails ordered that Spencer be taken to the
healthcare unit for a body chart and then to the segregation
unit for holding until an investigation regarding the inmate
attack could be conducted. (Id.).
to Spencer, he “immediately start[ed] protesting asking
as to why [he] was being placed in segregation . . . and as
to what charges because [he] didn't do anything to be
place[d] in lock-up.” (Id.). Spencer avers
that Captain Fails replied, “I am the Captain I can do
anything that I please to do, now take his ass to the
infirmary to get a body-chart.” (Id.). Spencer
further alleges that he asked to speak to the warden, and
that in response, Captain Fails and Officer Duren
“slammed” him to the floor while he was
restrained with handcuffs to the rear. (Id.).
Spencer contends that Officer Duren proceeded to bend his
left pinky finger backwards and ordered him to “shut
the fuck-up” when he yelled out in pain. (Id.
at 6). Spencer also alleges that Officer Duren then dragged
him to the infirmary despite his protests that he
“[could] walk if given the opportunity.”
(Id. at 7).
avers that after receiving a body chart, he was charged with
assault on an inmate and informed that he would be held in
segregation for seventy-two (72) hours while the
investigation of the inmate attack was
completed.(Id.). Spencer further alleges
that he was escorted to the segregation shift office, where
leg irons were placed on him in addition to the rear facing
handcuffs, and that Captain Fails ordered that photographs be
taken of him. (Id.). According to Spencer, he
continued to protest that he “didn't assault
nobody” and Captain Fails threatened to use pepper
spray on him if he continued to refuse to be photographed.
(Id. at 7-8). Spencer asserts that when he again
insisted on speaking with the warden about Captain Fails'
“[u]njust mistreatment” and claims, Captain
Fails got angry, became enraged, pulled out a chemical agency
mace spray and “deliberately sprayed several burst[s]
into my mouth and nostrils while I was in restraints
handcuffed to the rear with leg irons restraints shackles on
and I could not resist.” (Id. at 8). Spencer
further contends that “[Captain Fails then] snatched my
leg iron restraint shackles with such great force it cause[d]
me to hit my head on the edge of the desk table busting my
head on the floor where I was bleeding, Captain Fails and
Officer E. Duren start[ed] choking and kicking me” and
Captain Fails yelled, “when I tell you myself to do
something you need to do it. Now go tell Warden Myers that
mother-fucker.” (Id. at 9). Spencer also
claims that during the assault, Officers Madison and Ezell
“looked on” and failed to intervene.
(Id. at 8).
the assault, Spencer returned to the medical unit and was
again examined by a nurse. (Doc. 42-2 at 14). The nurse noted
a two-centimeter laceration on Spencer's head, cleaned
the blood, and ordered daily wound cleaning until the
laceration was healed. (Id.; Doc. 8 at 9; Doc. 30-1
at 11). Spencer was then released to the care of the officers
and escorted to segregation. (Doc. 30-1 at 11).
the incident, Spencer submitted multiple sick call requests
complaining of pain and damage to the pinky finger on his
left hand, which he claims is from Officer Duren bending his
finger backwards on September 8, 2015. (Doc. 30-1 at 12, 14,
21-22, 28, 35). The medical records reflect that Spencer was
examined by the nursing staff and doctors at Holman, received
x-ray scans, and consulted with specialists regarding his
finger. (Id. at 8, 15-20, 23, 24-32, 36-45). Spencer
alleges that he cannot straighten his pinky finger; “it
just sticks out straight” and that despite numerous
requests, he has been denied surgical treatment to repair the
damage and continues to suffer pain from the injury. (Doc. 12
suit against Defendants Fails, Duren, Ezell, Madison, Kouns,
and Hood, Spencer seeks injunctive and monetary relief. (Doc. 8
at 14-15; Doc. 12 at 11). Defendants have answered and
provided special reports, which include affidavits, medical
records, incident reports, and photographs. (See
Docs. 27, 30, 37, 41, 42). Spencer filed responses to
Defendants' submissions. (Docs. 34, 43, 51). Upon review
of Spencer's complaint, Defendants' answers and
special reports, and Spencer's responses, the Court
notified the parties' that Defendants' answers and
special reports were being converted into a motion for
summary judgment, and afforded the parties an opportunity to
file any response and materials in support of or in
opposition to the motion. (Doc. 53). Spencer filed a response
in opposition to the motion. (Docs. 54). This motion is now
ripe for consideration.
Summary Judgment Standard.
analyzing the propriety of a motion for summary judgment, the
Court begins with these basic principles. The Federal Rules
of Civil Procedure grant this Court authority under Rule 56
to render "judgment as a matter of law" to a party
who moves for summary judgment. Federal Rule of Civil
Procedure 56(a) provides that "[t]he 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." The party moving for
summary judgment bears the "initial responsibility of
informing the district court of the basis for [their] motion,
and identifying those portions of 'the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any,' which [they]
believe demonstrate the absence of a genuine issue of
material fact." Clark v. Coats & Clark, Inc.,
929 F.2d 604, 608 (11th Cir. 1991) (bracketed text added)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317,
323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
moving party does not have the burden of proof at trial, they
may show that "there is an absence of evidence to
support the nonmoving party's case." United
States v. Four Parcels of Real Property, 941 F.2d 1428,
1437 (11th Cir. 1991) (citations omitted). Alternatively, the
moving party may support its "motion for summary
judgment with affirmative evidence demonstrating that the
nonmoving party will be unable to prove its case at
trial." Id. If the moving party meets this
burden, the non-movant, as the party bearing the burden of
proof at trial, must set forth specific facts, supported by
citation to the evidence, to support the elements of the case
at trial, and therefore, establish that there is a genuine
issue for trial. Fed.R.Civ.P. 56(c). See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 252, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986).
the Court must "resolve all issues of material fact in
favor of the [non-movant], and then determine the legal
question of whether the [movant] is entitled to judgment as a
matter of law under that version of the facts."
McDowell v. Brown, 392 F.3d 1283, 1288 (11th Cir.
2004) (citing Durruthy v. Pastor, 351 F.3d 1080,
1084 (11th Cir. 2003)). "[A]ll reasonable doubts about
the facts and all justifiable inferences are resolved in
favor of the non-movant." Citizens Trust Bank v.
Lett, 2015 U.S. Dist. LEXIS 90849, 2015 WL 4254561 at *1
(N.D. Ala. 2015). The Court is obligated to construe the
record, including all evidence and factual inferences, in the
light most favorable to the nonmoving party. See Skop v.
City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007).
the mere existence of any factual dispute will not
automatically necessitate denial of a motion for summary
judgment; rather, only factual disputes that are material
preclude entry of summary judgment. Lofton v. Secretary
of Dep't of Children and Family Services, 358 F.3d
804, 809 (11th Cir. 2004). "An issue of fact is material
if it is a legal element of the claim under the applicable
substantive law which might affect the outcome of the case.
It is genuine if the record taken as a whole could lead a
rational trier of fact to find for the nonmoving party."
Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d
798, 807 (11th Cir. 2010) (citation omitted). A genuine
dispute of material fact exists "if the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party." Allen v. Bd. of Public Education
for Bibb County, 495 F.3d 1306, 1313 (11th Cir. 2007).
is proceeding against Defendants in their official and
individual capacities, and Defendants have asserted
applicable immunity defenses. (Docs. 27, 37, 42). With
respect to Spencer's claims against the correctional
officers in their official capacities, Defendants Fails,
Duren, Ezell, and Madison are entitled to absolute immunity.
The Eleventh Amendment, which specifically prohibits suits
against "the United States by Citizens of another State,
or by Citizens or Subjects of any Foreign State," has
long been held to apply "equally to suits against a
state brought in federal court by citizens of that
state." Harbert Int'l, Inc. v. James, 157
F.3d 1271, 1277 (11th Cir. 1998). "The state need not be
formally named as a defendant for the amendment to apply;
state officials sued in their official capacity are also
protected by the amendment." Id. (citing
Kentucky v. Graham, 473 U.S. 159, 166-67, 105 S.Ct.
3099, 87 L.Ed.2d 114 (1985)). "Section 1983 provides a
federal forum to remedy many deprivations of civil liberties,
but it does not provide a federal forum for litigants who
seek a remedy against a State for alleged deprivations of
civil liberties." Will v. Mich. Dep't of State
Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45
alleges that Defendants Fails, Duren, Ezell and Madison, all
of whom were employed by the State of Alabama Department of
Corrections as officers at Holman at the time of the incident
alleged in the complaint, violated his constitutional rights.
It is well settled in this circuit that suits seeking
monetary relief against state correctional officers in their
official capacities are generally barred by the Eleventh
Amendment. See Taylor v. Adams, 221 F.3d 1254, 1256
(11th Cir. 2000); Lancaster v. Monroe Cnty., 116
F.3d 1419, 1429 (11th Cir. 1997); Dean v. Barber,
951 F.2d 1210, 1215 n.5 (11th Cir.1992); Free, 887
F.2d at 1557.
Official capacity lawsuits are "in all respects other
than name, . . . treated as a suit against the entity."
Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct.
3099, 87 L.Ed.2d 114 (1985). "A state official may not
be sued in his official capacity unless the state has waived
its Eleventh Amendment immunity, see Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900,
79 L.Ed.2d 67 (1984), or Congress has abrogated the
state's immunity, see Seminole Tribe v. Florida,
517 U.S. 44, 59, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996).
Alabama has not waived its Eleventh Amendment immunity,
see Carr v. City of Florence, 916 F.2d 1521, 1525
(11th Cir. 1990) (citations omitted), and Congress has not
abrogated Alabama's immunity. Therefore, Alabama state
officials are immune from claims brought against them in
their official capacities." Lancaster v. Monroe
Cnty., 116 F.3d 1419, 1429 (11th Cir. 1997); Powell
v. Barrett, 496 F.3d 1288, 1304, 1308 (11th Cir. 2007)
(state defendants sued in their official capacity for
monetary damages are immune from suit under the Eleventh
Johnson v. Folks, 2014 WL 524602 at *3-4, 2014 U.S.
Dist. LEXIS 16027, 7-9 (S.D. Ala. Feb. 7, 2014) (quoting
Johnson v. Keaton, 2008 WL 4493242 at *6, 2008 U.S.
Dist. LEXIS 75356 (M.D. Ala. Sept. 29, 2008)).
disputes that the correctional Defendants were state
officials at the time the action arose. As such, they are
entitled to sovereign immunity under the Eleventh Amendment
for claims seeking monetary damages from them in their
official capacities. Therefore, Defendants Fails, Duren,
Ezell, and Madison are entitled to absolute immunity from
Plaintiff's claims asserted against them in their
the defense of qualified immunity, which is applicable to
defendants acting within their discretionary authority,
see Johnson v. Boyd, 701 Fed.Appx. 841, 847 (11th
Cir. 2017), “officers [are protected] from liability in
§ 1983 actions as long ‘as their conduct does not
violate clearly established or constitutional rights of which
a reasonable person would have known.'” Wells
v. Talton, 695 Fed.Appx. 439, 443 (11th Cir. 2017)
(citing Lewis v. City of W. Palm Beach, 561 F.3d
1288, 1291 (11th Cir. 2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73
L.Ed.2d 396 (1982)). A plaintiff may "show that a
constitutional right was clearly established in three
different ways: '(1) case law with indistinguishable
facts clearly establishing the constitutional right; (2) a
broad statement of principle within the Constitution,
statute, or case law that clearly establishes a
constitutional right; or (3) conduct so egregious that a
constitutional right was clearly violated, even in the total
absence of case law.'" Hill v. Orange Cty.
Sheriff, 666 Fed.Appx. 836, 839 (11th Cir. 2016)
(quoting Lewis v. City of W. Palm Beach, 561 F.3d at
Eighth Amendment excessive force case, "'the
subjective element required to establish [the constitutional
violation] is so extreme that every conceivable set of
circumstances in which this constitutional violation occurs
is clearly established to be a violation of the
Constitution." Bowden v. Stokely, 576 Fed.Appx.
951, 954-955 (11th Cir. 2014) (quoting Johnson v.
Breeden, 280 F.3d 1308, 1321-22 (11th Cir.2002)).
Therefore, if Spencer is able to establish his claim as laid
out in his complaint, Defendants Fails, Duren, Ezell, and
Madison cannot avail themselves of the protection of
qualified immunity to defeat this action.
Court also observes that, as private actors, medical
Defendants Drs. Hood and Kouns are not entitled to either
qualified or absolute immunity. See Swann v. Southern
Health Partners, Inc., 388 F.3d 834, 837 (11th Cir.
2004) ("The parties agree that as a private entity, SHP
[a private corporation employed by the County to provide
medical care to inmates at the county jail] is not entitled
to assert a qualified immunity defense."); Hinson v.
Edmond, 205 F.3d 1264, 1265 (11th Cir. 2000) (a
"privately employed prison physician is ineligible to
advance the defense of qualified immunity"); Edwards
v. Alabama Dep't of Corrs., 81 F.Supp.2d 1242, 1254
(M.D. Ala. 2000) (a private entity contracting with a state
to provide medical services to state inmates "is not
entitled to qualified immunity...."). “With
respect to absolute immunity, Defendants have cited no case,
and the Court is aware of no case, extending absolute
immunity to private actors providing medical services to
state inmates.” Walker-El v. Naphcare Med.
Servs., 432 F.Supp.2d 1264, n. 3 (S.D. Ala. 2006).
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, employed as correctional officers
for the State of Alabama or as contract employees for the
State of Alabama, were acting under the color of state law at
the time of the complained of incident. Thus, the Court must
determine if Defendants have established that there are no
genuine facts with respect to Spencer's Eighth Amendment
Excessive Force Claims.
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);
Hudson v. McMillian, 112 S.Ct. 995, 998, 503 U.S. 1,
5, 117 L.Ed.2d 156 (1992) ('[T]he unnecessary and wanton
infliction of pain ... constitutes cruel and unusual
punishment forbidden by the Eighth Amendment.'")
(citations omitted). "Therefore, the "Eighth
Amendment prohibits prison officers from using excessive
force against prisoners." Pearson v. Taylor,
665 Fed.Appx. 858, 863 (11th Cir. 2016) (citing Thomas v.
Bryant, 614 F.3d 1288, 1303-04 (11th Cir. 2010)). Thus,
"[t]he 'core judicial inquiry' for an
excessive-force claim is 'whether force was applied in a
good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.'"
Pearson, 665 Fed.Appx. at 863 (quoting Wilkins
v. Gaddy, 559 U.S. 34, 37, 130 S.Ct. 1175, 175 L.Ed.2d
995 (2010) (quoting Hudson, 503 U.S. at 7).
Eleventh Circuit has "identified five factors to help
evaluate whether force was applied maliciously or
sadistically." Pearson, 665 Fed.Appx. at 863
(citing Danley v. Allen, 540 F.3d 1298, 1307 (11th
Cir. 2008), overruled on other grounds as
recognized by Randall v. Scott, 610 F.3d 701, 709 (11th
Cir. 2010)): "(1) the need for force; (2) the
relationship between that need and the amount of force used;
(3) the extent of the resulting injury; (4) the extent of the
threat to the safety of staff and inmates, as reasonably
perceived by the responsible official on the basis of facts
known to that official; and (5) any efforts made to temper
the severity of the use of force." Pearson,
665 Fed.Appx. at 863 (citations omitted).
present action, Defendants do not dispute that force was used
against Spencer. Rather, they submit that the force used was
“minimal, justified, and necessary” due to
Spencer's “insubordinate” and
“aggressive” behavior. (Doc. 42 at 1). In support
of their assertions, Defendants submitted sworn affidavits
giving a different version of the facts. On September 8,
2015, Spencer was placed in handcuffs and escorted from his
dormitory to the main hall. (Doc. 42-3). Spencer was informed
that he was going to be placed in segregation pending an
investigation for an assault on an inmate with a weapon.
Spencer responded, “I didn't do nothing and I am
not going to lock up.” (Id.). He refused to be
escorted to the healthcare unit and segregation, and started
“pulling away from the officers.” (Id.).
According to Defendants, Spencer resisted the placement of
leg irons by kicking the officers, and he refused to take
photographs prior to his placement in segregation.
(Id.). He “sat on the table and refused to
move.” (Id. at 2). As a result, Captain Fails
administered a one second burst of a chemical agent, Sabre
Red, to Spencer's facial area to gain compliance.
Fails denies choking, kicking, or using excessive force
against Spencer. (Id.). Officer Duren avers that
Spencer resisted having leg irons placed on him by kicking
Officer Duren. (Doc. 42-4 at 1-2). Officer Duren further
avers that he did not bend Spencer's finger backwards nor
did he “do anything else to inmate Spencer that he is
alleging.” (Id. at 2). Officers Ezell and
Madison affirm by affidavits that they did not witness any
excessive force used in restraining Spencer on September 8,
2015. (Docs. 42-5; 42-6).
formal prison reports prepared in response to the incident
corroborate Defendants' version of the events and provide
slightly more details regarding the unfolding of the
incident. (Doc. 42-2 at 2-4, 18). The Incident Report states
On September 8, 2015, at approximately 4:50 AM, Correctional
Lieutenant Victor Nieves received information that inmates
Luther Glenn B/148373 and Antonio Spencer B/244156 were
involved in a physical altercation around noon on September
7, 2015 and inmate Glenn was possibly injured. At
approximately 5:00 AM, inmate Glenn was . . . treated for a
small laceration on the left shoulder and superficial
injuries to his back. Lieutenant Nieves questioned inmate
Glenn about the incident and inmate Glenn state that
“Tim” stabbed him in the back after a verbal
altercation about a cellular phone. At approximately 5:10 AM,
Lieutenant Nieves notified the On Call Duty Officer,
Correctional Captain Darryl Fails, and reported the incident.
At approximately 6:00 AM, inmate Spencer was located in
C-Dorm. Inmate Spencer was placed in handcuffs restraints and
escorted to the Main Hall. Captain Fails observed several
blood stains on inmate Spencer white short pants. Captain
Fails questioned inmate Spencer about the blood stains.
Inmate Spencer stated, “I cut my finger on my left
hand”. Inmate Spencer state I didn't do anything
and I am not going to lock up for nothing. Inmate Spencer
began to struggle and kick at the officers on the main hall.
Inmate Spencer was placed on the floor of the main hall and
secured in leg irons restraints. Inmate Spencer was escorted
to the Health Care Unit where he received a medical
assessment and was escorted to Segregation. Inmate Spencer
refused to take pictures and again refused to be escorted to
a segregation cell. Captain Fails retrieved his canister of
“Sabre Red” from his utility belt and
administered a one second burst to inmate Spencer'[s]
facial area. Inmate Spencer was placed in the shower in
segregation for decontamination. Inmate Spencer remains in
segregation pending investigation and Failure to Obey.
Officer Duren received a small laceration to his right wrist
from the leg iron due to inmate Spencer struggling on the
floor. . . .
(Doc. 42-2 at 2). The Duty Officer Report prepared following
the incident provides the same facts contained in the
Incident Report. (Doc. 42-2 at 3). The statement taken of
Correctional Officer Lieutenant Victor Nieves, a non-party ...