United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE
U.S.C. § 1983 action is pending before the court on a
complaint filed on May 23, 2016, by Matthew Shaper, an
indigent state inmate, challenging actions which occurred on
December 8, 2015, at Elmore Correctional Facility. (Doc. 1 at
p. 2). Later, he filed an amendment to his complaint
challenging actions that took place on January 26, 2016, at
Elmore Correctional Facility. (Doc. 6 at p. 2). Specifically,
Shaper alleges that the defendants acted with deliberate
indifference when they failed to protect him from an attack
by black inmates on December 8, 2015, and thereafter delayed
his access to medical treatment until December 14, 2015, when
a medical body chart was performed. (Doc. 1 at pp. 5-7). He
also alleges that defendants retaliated against him for
filing this § 1983 action when certain correctional
officer defendants assisted inmates with breaking into his
personal locker on January 26, 2016. (Doc. 6 at pp. 2-3). He
further alleges that the defendants failed to investigate
these events. (Doc. 1 at p. 7; Doc. 6 at p. 3). The named
defendants are Warden Leon Forniss, the Alabama Department of
Corrections, Sgt. Oliver, C.O. McDonald, C.O. Green, Lt.
Burk, C.O. Rogers, C.O Lewis, Captain McKee, and Captain
Smiley. Shaper seeks monetary damages and injunctive relief
in this cause of action.
defendants filed a special report (Doc. 27, Exs.
1-10) and a supplemental special report (Doc.
33, Exs. 1-8), which included relevant evidentiary materials
in support of these reports, specifically, affidavits, prison
documents, and medical records addressing the claims
presented by Shaper. At the direction of the court, the
defendants also filed additional affidavits. (Docs. 30, Ex.
1; 50, Exs. 1-5; 68, Exs. 1-3; 72, Exs. 1-2; 83, Exs. 1-3).
In these documents, the defendants deny they acted with
deliberate indifference to Shaper's safety or medical
needs, deny they participated in the actions that form
Plaintiff's retaliation claims, and deny they failed to
investigate these events. At the direction of the court, the
defendants also filed video recordings under seal solely for
the court's in camera review. (Docs. 86, 88, 89,
90). These video exhibits include video of activities
occurring in the dorm on January 26, 2016, (Doc. 90; Ex. 1)
and video of the plaintiff in the shift office on December 8,
2015. (Doc. 90; Ex. 2). The court has reviewed these videos.
reviewing the special reports and exhibits, the court issued
an order on February 17, 2017, requiring Shaper to file a
response to the defendants' special reports, supported by
affidavits or statements made under penalty of perjury and
other evidentiary materials. These orders specifically
cautioned 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 to this order] and without
further notice to the parties (1) treat the special reports
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. 52 at 2-3).
Shaper filed a response to this order. (Doc. 60).
to the directives of the order entered on February 17, 2017,
the court now treats the defendants' special report and
supplements thereto as a motion for summary judgment and
concludes that summary judgment is due to be granted in favor
of the defendants.
SUMMARY JUDGMENT STANDARD
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); Rule 56(a), Fed.R.Civ. P. (“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.”). 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 [now dispute]
of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986); Williamson Oil Company, Inc. v.
Phillip Morris USA, 346 F.3d 1287, 1298 (11th Cir. 2003)
(holding that moving party bears the initial burden of
establishing there is no genuine dispute as to any material
fact); Jeffery v. Sarasota White Sox, Inc., 64 F.3d
590, 593 (11th Cir. 1995) (same). The movant may meet this
burden by presenting evidence indicating there is no dispute
of material fact or by demonstrating 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 322-24. The 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. Moton v. Cowart, 631 F.3d 1337, 1341 (11th
the defendants meet their evidentiary burden, as they have in
this case, 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) (“If a party fails to properly support an
assertion of fact or fails to properly address another
party's assertion of fact by [citing to materials in the
record including affidavits, relevant documents or other
materials] the court may . . . grant summary judgment if the
motion and supporting materials-including the facts
considered undisputed-show that the movant is entitled to
it.”). Once the moving party meets its burden,
“the non-moving party must then go beyond the
pleadings, and by its own affidavits [or sworn statements],
or by depositions, answers to interrogatories, and admissions
on file, ” demonstrate that there is a genuine dispute
of material fact. Jeffery, 64 F.3d at 593-94
(internal quotation marks omitted). 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). A
genuine dispute of material fact exists when the nonmoving
party produces evidence that would allow a reasonable
fact-finder to return a verdict in its favor.
Greenberg, 498 F.3d at 1263; Allen v. Bd. of
Public Education for Bibb County, 495 F.3d 1306, 1313
(11th Cir. 2007). In civil actions filed by inmates, federal
courts “must distinguish between evidence of disputed
facts and disputed matters of professional judgment. In
respect to the latter, our inferences must accord deference
to the views of prison authorities. Unless a prisoner can
point to sufficient evidence regarding such issues of
judgment to allow him to prevail on the merits, he cannot
prevail at the summary judgment stage.” Beard v.
Banks, 548 U.S. 521, 530 (2006) (internal citation
proceed beyond the summary judgment stage, an
inmate-plaintiff may not rest upon his pleadings but must
produce “sufficient [favorable] evidence” that
would be admissible at trial supporting each essential
element of his claim. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). “If the evidence
[on which the nonmoving party relies] is merely colorable . .
. or is not significantly probative . . . summary judgment
may be granted.” Anderson, 477 U.S. at 249-50.
“A mere ‘scintilla' of evidence supporting
the opposing party's position will not suffice; there
must be enough of a showing that the [trier of fact] could
reasonably find for that party.” Walker v.
Darby, 911 F.2d 1573, 1576- 77 (11th Cir. 1990)
(internal citation omitted). Conclusory allegations based on
a plaintiff's subjective beliefs are likewise
insufficient to create a genuine dispute of material fact
and, therefore, do not suffice to oppose a motion for summary
judgment. Harris v. Ostrout, 65 F.3d 912, 916 (11th
Cir. 1995) (holding that grant of summary judgment is
appropriate where inmate produces nothing beyond “his
own conclusory allegations” challenging actions of the
defendants); Fullman v. Graddick, 739 F.2d 553, 557
(11th Cir. 1984) (“Mere verification of party's own
conclusory allegations is not sufficient to oppose summary
judgment.”); Evers v. General Motors Corp.,
770 F.2d 984, 986 (11th Cir. 1985) (“[C]onclusory
allegations without specific supporting facts have no
probative value.”). Hence, when a plaintiff fails to
set forth specific facts supported by requisite evidence
sufficient to establish the existence of an element essential
to his case and on which the plaintiff will bear the burden
of proof at trial, summary judgment is due to be granted in
favor of the moving party. Celotex, 477 U.S. at 322
(“[F]ailure of proof concerning an essential element of
the nonmoving party's case necessarily renders all other
facts immaterial.”); Barnes v. Southwest Forest
Industries, Inc., 814 F.2d 607, 609 (11th Cir. 1987) (If
on any part of the prima facie case the plaintiff presents
insufficient evidence to require submission of the case to
the trier of fact, granting of summary judgment is
appropriate.); Chapman v. AI Transport, 229 F.3d
1012, 1023 (11th Cir. 2000) (en banc) (holding that summary
judgment is appropriate where no genuine dispute of material
fact exists). At the summary judgment stage, this court must
“consider all evidence in the record . . . [including]
pleadings, depositions, interrogatories, affidavits, etc. -
and can only grant summary judgment if everything in the
record demonstrates that no genuine [dispute] of material
fact exists.” Strickland v. Norfolk Southern
Railway Co., 692 F.3d 1151, 1154 (11th Cir. 2012).
summary judgment purposes, only disputes involving material
facts are relevant. United States v. One Piece of Real
Property Located at 5800 SW 74th Avenue, Miami, Florida,
363 F.3d 1099, 1101 (11th Cir. 2004). What is material is
determined by the substantive law applicable to the case.
Anderson, 477 U.S. at 248. “Only factual
disputes that are material under the substantive law
governing the case will preclude entry of summary
judgment.” Lofton v. Secretary of the Department of
Children and Family Services, 358 F.3d 804, 809 (11th
Cir. 2004). “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.
Group, Inc., 764 F.Supp.2d 1297, 1301 (M.D. Fla. 2011)
(citing Anderson, supra).
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 323-24. A
court may grant summary judgment where the pleadings,
evidentiary materials, and affidavits before the court show
there is no genuine dispute as to a requisite material fact.
Id. 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.
Waddell v. Valley Forge Dental Associates, Inc., 276
F.3d 1275, 1279 (11th Cir. 2001). “When 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
factual inferences must be viewed in a light most favorable
to the nonmoving party 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. Beard, 548 U.S. at 525,
126 S.Ct. at 2576; Brown v. Crawford, 906 F.2d 667,
670 (11th Cir. 1990). Thus, Shaper's pro se
status alone does not mandate this court's disregard of
elementary principles of production and proof in a civil
court has undertaken a thorough and exhaustive review of all
the evidence contained in the record. After such review, the
court finds that Shaper has failed to demonstrate a genuine
dispute of material fact in order to preclude entry of
summary judgment in favor of the defendants.
complaint, the plaintiff alleges that on December 8, 2015, he
“was beaten and robbed at knife point in A-2 dormitory
by several black inmates, and his personal locker box was
looted during this robbery.” (Doc. 1 at p. 5). He
further alleges that “[f]ollowing the plaintiff's
being beaten and robbed . . . plaintiff immediately proceeded
to the shift office and reported this incident.” (Doc.
1 at p. 6). He admits that a medical body chart was performed
on December 14, 2015, but complains that was “6 days
after this assault/armed robbery initially occurred.”
(Doc. 1 at p. 7). He also claims that “[n]o efforts
have been made by these defendants to apprehend or even
investigate this incident.” (Doc. 1 at. p 7). The
plaintiff includes no factual support for these statements
other than his bare bones pleadings in the complaint.
amendment to the complaint, the plaintiff alleges that on
January 26, 2016, in A2 dorm “several black inmates . .
. attempted to rob the plaintiff's locker-box by trying
to kick the box off its rails and trying to break the
lock.” (Doc. 6 at. p. 2). He further alleges that
“Corr. Officers Rogers, Green, and Lewis witnessed
these inmates attempting to break into the plaintiff's
locker, and C.O. Rogers assisted these inmates by using his
baton to break the lock off of the plaintiff's locker and
allowed them to loot the plaintiff's property while C.O.
Green and C.O. Lewis stood by and watched.” (Doc. 6 at
p. 2). He claims that “the officer assisted robbery on
January 26, 2016, was in retaliation for plaintiff's
pending § 1983 filing . ” (Doc . 6 at p. 2) .
Plaintiff also attached to the ...