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Baisden v. Dejarnette

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

November 8, 2018

LARRY ROGER BAISDEN, #298 382, Plaintiff,
v.
OFFICER DEJARNETTE, Defendant.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          GRAY M. BORDEN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Larry Roger Baisden, an inmate incarcerated at the Staton Correctional Facility (“Staton”) in Elmore, Alabama, filed the instant civil rights action under 42 U.S.C. § 1983. He complains that Defendant Corey Dejarnette, a correctional officer, assaulted him at Staton on June 6, 2015 when he attempted to go through the chow line for a second time. Baisden complains that Dejarnette struck him on the left side of his face, which knocked him to the floor and caused severe damage to his left ear. Doc. 1 at 2. Baisden requests injunctive relief, damages, and that Dejarnette receive a reprimand. Doc. 1.

         Pursuant to 28 U.S.C. § 636(b)(1)(B), the court set this matter for an evidentiary hearing because there was a genuine dispute of fact about Baisden's claim of excessive force and neither party had requested a jury trial. The court conducted the evidentiary hearing on October 31, 2018. Considering all relevant testimony and exhibits against the backdrop of the record, [1] the court concludes that judgment should be entered in favor of Defendant Dejarnette and against Plaintiff Baisden.

         I. EVIDENTIARY FINDINGS

         The evidentiary hearing proceeded on a single issue-whether Officer Dejarnette subjected Baisden to an unprovoked and malicious use of force by striking the left side of his head with such force that it knocked him to the ground. As evidentiary support for his claim, Baisden testified and also relied on the testimony of a fellow inmate, Kevin Martin, and Correctional Officer Robert Fitts. For his defense, Officer Dejarnette testified and presented testimony Dr. Karen Stone.

         Martin was summoned as a plaintiffs witness. According to Martin's testimony, Baisden could not have been attempting to eat twice on the day in question because Baisden woke Martin up on his way to the chow hall. Martin testified that he was on his bed in C Dorm on June 6, 2015 when Baisden, who slept one bed over from Martin, tapped Martin on his way to the chow hall and asked Martin to go with him. Martin testified that he was behind Baisden when they got to the chow hall and he saw Dejarnette strike Baisden in the face without provocation and push him into a wall. On cross-examination, Martin admitted that in his previous written affidavit he had stated that he observed Dejarnette strike Baisden one time but did not mention the officer pushing Baisden into a wall. Martin further acknowledged on cross-examination that Baisden's inmate movement sheet reflected that Baisden was housed in E Dorm on June 6.[2] Martin testified on direct examination that Officer Fitts was working at the ID scanner at the entrance to the chow hall that day. During Officer Fitts' direct examination by Baisden, the officer testified that on June 6, 2015 his assignment in the chow hall was at the tray window and that Correctional Officer Duncan was assigned to the ID scanner. In addition, Baisden admitted in his complaint and during his testimony that he was, in fact, attempting to eat for a second time. Upon consideration of Martin's testimony, his sworn affidavit contradicting his testimony, and light of other testimony provided by Officer Fitts and Baisden that also contradicts material portions of Martin's testimony, the court finds his testimony not to be credible.

         Baisden also called as a witness Robert Fitts, [3] who was employed as a correctional officer at Staton on June 6, 2015.[4] According to Fitts testimony, his post on the day and time in question was at the chow hall where he was assigned to check the color of inmate wristbands at the tray window where inmates pick up their meal tray.[5] Fitts post was located approximately 25 to 30 feet from the entrance to the chow hall, but Fitts did not see Dejarnette strike Baisden at any time. According to Fitts, if an incident like the one described by Baisden had occurred, not only would Fitts have noticed it from his post but the officer involved in the incident would have made a call on his radio for other officers to respond to the scene of the incident.

         Baisden testified that on June 6, 2015 he ate chow at the correct time for his dorm, Dorm E, then attempted to go through the chow line for a second helping of food. When he reached the first checkpoint entrance to the chow hall, Dejarnette stopped him. Baisden, realizing Dejarnette wanted to have his ID card scanned again to verify that he had just eaten, testified that he then admitted to Dejarnette that he already had his meal and it was, therefore, unnecessary to have his ID card checked. Dejarnette insisted that Baisden follow him to the scanner where Duncan scanned Baisden's ID card. Baisden testified that Dejarnette, with no provocation, then struck him with a closed fist on the left side of his head above his ear and by his left temple, causing him to hear a ringing noise. Baisden testified that the blow to the side of his head caused him to bump up against the wall and fall to the ground. Baisden then got up off the ground and walked away. According to Baisden's testimony, Dejarnette's assault caused him medical issues requiring two reconstructive surgeries on his right ear.

         Dejarnette is employed by the Alabama Department of Corrections as a correctional officer at Staton, and was so employed on June 6, 2015. According to Dejarnette's testimony, he has no history with Baisden and has no recollection of any encounter with Baisden on June 6, 2015. He specifically denies ever striking Baisden. On the date in question, Dejarnette testified that his post was in the chow hall, where he was assigned to the entrance door to check inmate wristbands to ensure the color of the inmate wristband matched the dorm called for chow. Dejarnette testified that department records indicating the inmates' movement history within the prison system reflect that Baisden and Martin were not housed in the same dorm on June 6, 2015--Baisden was in E Dorm and Martin was in C Dorm. Dejarnette testified that bed roster checks are performed regularly to confirm that inmates remain in their assigned dorms. At chow time, Dejarnette testified that if the color of an inmate's wristband indicated it was not the inmate's turn to eat, his response would not be to strike the inmate but to issue a direct order to the inmate to return to his assigned dorm until it was his turn for chow. If an inmate had been knocked to the floor in the chow hall, Dejarnette testified that other officers would have seen it happen.

         Dr. Karen Stone, summoned as a defense witness, provided no corroborative testimony for Baisden s account of his exchange with Dejarnette.[6] According to her testimony, she spends significant time on patient care but has never treated Baisden. However, she reviewed relevant portions of his medical records to prepare for the evidentiary hearing. Dr. Stone testified that Baisden's medical records reflect that on June 7, 2016 he submitted a health services request form stating he had been hit on the left side of his face/head by a correctional officer the day before, and that he had pain in his ear and down his jaw and associated dizziness. On June 8, 2015, medical personnel examined Baisden for his complaint, but observed no swelling or redness. Baisden then submitted a sick call request on June 9, 2015 regarding an abscess or boil on his left arm. Baisden's medical records show that the medical staff examined him on June 10, 2015, and found a small abscess on his left arm with no drainage for which he was prescribed an anitibiotic. On June 17, 2015, Baisden submitted a health services request form complaining of left ear pain that he described as feeling like a “busted eardrum.” Medical staff noted evidence of an ear infection and placed him on antihistamines and antibiotics. Medical staff followed up with Baisden within approximately one week and noticed Baisden's left eardrum was clear.

         On July 1, 2015, a consultation request for a hearing test was submitted by a nurse regarding Baisden's complaint he could not hear out of his left ear. The consultation request noted that the date of onset was six months earlier. The request was approved, and Baisden had his offsite hearing test on September 17, 2015. The audiologist who examined Baisden on September 17, 2015 noted that he reported a hearing loss following an altercation with an officer on June 6, 2015. The report showed some hearing loss in the high frequency range consistent with a possible noise injury. The audiologist saw some possible Eustachian tube dysfunction in the left ear. The audiologist further noted that Baisden's right ear had a hole in the eardrum, which is where his main hearing loss was located. It was recommended that Baisden see an ear, nose, and throat (“ENT”) specialist.

         Dr. Stone testified that on September 18, 2015 a consultation request was submitted for Baisden to be seen by an ENT, and on September 24, 2015 the request was approved. On October 7, 2015, an ENT examined Baisden and found his left ear canal clear with an intact tympanic membrane without perforation or effusion. The physician noted that Baisden now complained that he had been struck on the right side of his face and noted the hole in Baisden's right ear-described by the physician as a traumatic perforation-was likely due to Baisden's description of his injury. The ENT also noted hearing loss in Baisden's right ear and recommended he have surgery on his right tympanic membrane with the perforation.

         Baisden underwent a tympanoplasty procedure on December 8, 2015 for a right-side tympanic membrane perforation. During surgery, the surgeon determined the severity of Baisden's ear condition was due to tympanosclerosis, which required a total tympanic reconstruction of the right eardrum and resulted in the surgeon's decision to abort the surgery. Medical staff at Staton then submitted a consultation report on December 8, 2015 for Baisden to have surgery in Birmingham, Alabama, to perform a total reconstruction of his tympanic membrane. Medical staff at Staton then submitted a consultation request on December 28, 2015 for Baisden to undergo a complete reconstructive surgery of his right tympanic membrane by an otologist in Birmingham, Alabama.

         Baisden underwent reconstructive surgery in 2016 in Birmingham. At his six-week check-up following the procedure, Baisden's physician found his eardrum intact. During a check-up in June 2018, the physician noted the right ear repair surgery had failed and the perforation had reappeared. The physician made a notation that Baisden indicated the hole may have reappeared because he had been in several altercations since the surgery. The physician observed no drainage and Baisden reported no pain and indicated that he did not wish to undergo another surgery but would like to try a hearing aid. A request was made by prison medical personnel that Baisden be evaluated for a hearing aid, but the request was denied ...


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