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Morrissette v. Billups

United States District Court, M.D. Alabama, Northern Division

July 26, 2018

EVANDER J. MORRISSETTE, Plaintiff,
v.
PHYLLIS BILLUPS, et al., Defendants.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          WALLACE CAPEL, JR., CHIEF UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         This case is before the court on a 42 U.S.C. § 1983 complaint filed by Evander J. Morrissette, a former state inmate. In this case, Morrissette challenges the constitutionality of force used against him on September 10, 2014 by Officer Willie T. Parham during a prior term of incarceration at the Bullock Correctional Facility. Doc No. 1 at 5-13.[1]Morrissette names Parham, Warden Phyllis Billups and Warden Sandra Giles as defendants. Morrissette seeks monetary damages for the alleged violation of his constitutional rights. Doc. No. 1 at 14.

         The defendants filed an answer, special report and supporting evidentiary materials, including affidavits and certified prions/medical records, addressing Morrissette's claim for relief. In these documents, the defendants deny they acted in violation of Morrissette's constitutional rights. After receipt of the defendants' special report, the court issued an order on July 21, 2015 directing Morrissette to file a response to the report, including affidavits or statements made under penalty of perjury and other evidentiary materials. Doc. No. 20 at 2. The order specifically cautioned Morrissette that “unless within fifteen (15) days from the date of this order a party . . . presents sufficient legal cause why such action should not be undertaken . . . the court may at any time [after expiration of the time for the plaintiff filing a response] and without further notice to the parties (1) treat the special report and any supporting evidentiary materials as a motion for summary judgment and (2) after considering any response as allowed by this order, rule on the motion for summary judgment in accordance with the law.” Doc. No. 20 at 2-3.

         Morrissette filed a response and supporting affidavit in opposition to the defendants' report on September 17, 2015. Doc. No. 24 and Doc. No. 24-1. In this response, Morrissette seeks dismissal of his claims against defendants Billups and Giles because they are not responsible for the actions of defendant Parham. Doc. No. 24 at 1. The court construes this portion of Morrissette's response as a motion to dismiss his claims against defendants Billups and Giles. In addition, pursuant to the July 21, 2015 order, the court deems it appropriate to treat the defendants' report as a motion for summary judgment with respect to the claims lodged against defendant Parham.

         With respect to the motion to dismiss filed by Morrissette, the court finds that this motion is due to be granted. Moreover, upon consideration of the motion for summary judgment, the evidentiary materials filed in support thereof, the sworn complaint and the plaintiff's response in opposition to the report, the court concludes that the motion for summary judgment is due to be denied as to the Morrissette's allegations of excessive force lodged against defendant Parham in his individual capacity and granted in all other respects.

         II. MOTION TO DISMISS

         In his response filed to the defendants' report, Morrissette seeks dismissal of his claims against defendants Billups and Giles as these defendants “are not rightfully proper parties to these proceedings and cannot be held liable in § 1983 due to the doctrine of Respondeat Superior, accordingly they should be dismissed.” Doc. No. 24 at 1. As previously discussed, the court has construed this request as a motion to dismiss and agrees with Morrissette's assertion that his claims against defendants Billups and Giles provide no basis for relief as the law is well-settled “that Government officials may not be held liable for the unconstitutional conduct of their subordinates under the theory of respondeat superior [or vicarious liability]. . . . Robertson v. Sichel, 127 U.S. 507, 515-516, 8 S.Ct. 1286, 3 L.Ed. 203 (1888) (‘A public officer or agent is not responsible for the misfeasances or position wrongs, or for the nonfeasances, or negligences, or omissions of duty, of the subagents or servants or other persons properly employed by or under him, in the discharge of his official duties'). Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003) (“[S]upervisory officials are not liable under § 1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability.”); Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir.2003) (concluding supervisory officials are not liable on the basis of respondeat superior or vicarious liability). “Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.” Iqbal, 556 U.S. at 677. Consequently, the court concludes that Morrissette's motion to dismiss is due to be granted and his claims against defendants Billups and Giles be dismissed with prejudice. The court will henceforth proceed to address the excessive force claim presented against defendant Parham.

         III. SUMMARY JUDGMENT STANDARD

         “Summary judgment is appropriate ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine [dispute] as to any material fact and that the moving party is entitled to judgment as a matter of law.'” Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (per curiam) (citation to former rule omitted); Fed.R.Civ.P. Rule 56(a) (“The 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.”).[2] The party moving 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 [record, including pleadings, discovery materials and affidavits], which it believes demonstrate the absence of a genuine [dispute] of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593 (11th Cir. 1995) (holding that moving party has initial burden of showing there is no genuine dispute of material fact for trial). The movant may meet this burden by presenting evidence indicating there is no dispute of material fact or by showing that the nonmoving party has failed to present appropriate evidence in support of some element of its case on which it bears the ultimate burden of proof. Celotex, 477 U.S. at 322-324); Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011) (holding that moving party discharges his burden by showing that the record lacks evidence to support the nonmoving party's case or that the nonmoving party would be unable to prove his case at trial).

         When the moving party meets its evidentiary burden, the burden shifts to the plaintiff to establish, with appropriate evidence beyond the pleadings, that a genuine dispute material to his case exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Celotex, 477 U.S. at 324; Fed.R.Civ.P. 56(e)(3); Jeffery, 64 F.3d at 593-94 (holding that, once a moving party meets its burden, “the non-moving party must then go beyond the pleadings, and by its own affidavits [or statements made under penalty of perjury], or by depositions, answers to interrogatories, and admissions on file, ” demonstrate that there is a genuine dispute of material fact.). This court will also consider “specific facts” pled in a plaintiff's sworn complaint when considering his opposition to summary judgment. Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014).

         For summary judgment purposes, only disputes involving material facts are relevant. United States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004). What is material is determined by the substantive law applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Lofton v. Sec'y of the Dep't of Children & Family Serv., 358 F.3d 804, 809 (11th Cir. 2004) (“Only factual disputes that are material under the substantive law governing the case will preclude entry of summary judgment.”). “The mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (citation omitted). “[T]here must exist a conflict in substantial evidence to pose a jury question.” Hall v. Sunjoy Indus. Grp., Inc., 764 F.Supp.2d 1297, 1301 (M.D. Fla. 2011).

         To demonstrate a genuine dispute of material fact, the party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine [dispute] for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In cases where the evidence before the court which is admissible on its face or which can be reduced to admissible form indicates there is no genuine dispute of material fact and the party moving for summary judgment is entitled to it as a matter of law, summary judgment is proper. Celotex, 477 U.S. at 323-324 (summary judgment appropriate where pleadings, evidentiary materials and affidavits before the court show no genuine dispute as to a requisite material fact); Waddell v. Valley Forge Dental Assocs., Inc., 276 F.3d 1275, 1279 (11th Cir. 2001) (To establish a genuine dispute of material fact, the nonmoving party must produce evidence such that a reasonable trier of fact could return a verdict in his favor.). A genuine dispute of material fact exists when a party produces evidence that would allow a reasonable fact-finder to return a verdict in its favor such that summary judgment is not warranted. Greenberg, 498 F.3d at 1263; Allen v. Bd. of Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1313 (11th Cir. 2007).

         Although factual inferences must be viewed in a light most favorable to the plaintiff and pro se complaints are entitled to liberal interpretation, a pro se litigant does not escape the burden of establishing by sufficient evidence a genuine dispute of material fact. See Beard v. Banks, 548 U.S. 521, 525 (2006); Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990). Thus, the plaintiff's pro se status alone does not compel this court to disregard elementary principles of production and proof in a civil case.

         The court has undertaken a thorough and exhaustive review of all the evidence contained in the record. After this review, the court finds that Morrissette, through the submission of his sworn complaint, his response in opposition to the defendant's special report and the supporting affidavit, has demonstrated a genuine dispute of material fact in order to preclude entry of summary judgment on his excessive force claim against defendant Parham in this defendant's individual capacity.

         IV. DISCUSSION

         A. Absolute Immunity

         To the extent Morrissette seeks relief from defendant Parham in his official capacity, Parham is immune from monetary damages. 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 (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, 908, 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, 1125, 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 ...


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