United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
STEPHEN M. DOYLE UNITED STATES MAGISTRATE JUDGE.
U.S.C. § 1983 action is pending before the Court on a
Complaint filed on April 18, 2016 by Kenneth Shaun Traywick
(“Traywick”), an indigent state inmate,
challenging numerous actions which occurred while he was an
inmate at Draper Correctional Facility
(“Draper”). (Doc. 1). By Order dated April 29,
2016, this Court advised Plaintiff to file an amended
complaint and that his case would proceed “only against
the defendants named and claims presented in the amended
complaint.” (Doc. 2). Thereafter, he filed an Amended
Complaint. (Doc. 10). Specifically, Traywick alleges that
Defendants acted with deliberate indifference when they
failed to protect him by “placing him in an
institution, and or dorm without personel [sic] from A.D.O.C.
to see over his safety” and for failing to protect him
from the use of excessive force by correctional officers
against him on March 14, 2016. Id. at 5-6. He also
alleges that Defendants violated his constitutional rights
when they used excessive force and “picked the
plaintiff up by legs and arms and tossed him on his back upon
a concrete floor” into a population dorm cell.
Id. at 6. He further alleges that the defendants
retaliated against him by placing him in segregation and
ordering the confiscation of his mail for complaining about
the “inadequate security and assault.”
named defendants are: former Governor Robert Bentley;
Jefferson Dunn, Commissioner of ADOC; Edward Ellington,
Correctional Warden at Draper; Janet LeJeune, ADOC
Constituent Services Officer in Montgomery, Alabama; Tracey
Smith, Correctional Captain at Draper; Kahdra Davis,
Correctional Lieutenant at Draper; Larry Philyaw,
Correctional Lieutenant at Draper; Samuel Johnson,
Correctional Officer at Draper; De'Teri Mayes,
Correctional Officer at Draper; Deointequan Murray,
Correctional Officer at Draper; Kendrick Chappell,
Correctional Officer at Draper; and Jackie Pettway,
Correctional Sergeant at Draper. Traywick seeks monetary
damages from Defendants in their individual and official
capacities. (Doc. 10) at 7. Defendants filed a special report
(Doc. 35), including supporting evidentiary materials, which
addressed the claims presented by Traywick. In their report,
Defendants deny they acted with deliberate indifference to
Traywick's safety needs, participated in the actions
which form the plaintiff's excessive force claim, or
retaliated against Plaintiff.
reviewing the special reports and exhibits, the United States
Magistrate Judge previously assigned to the case issued an
Order (Doc. 36), directing Traywick to file a response to
Defendants' special report, supported by affidavits or
statements made under penalty of perjury and other
evidentiary materials. The Court specifically cautioned that
“unless within ten (10) 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. 36) at 2. Traywick then filed his Response.
(Docs. 39; 40). Pursuant to the Order, the undersigned
magistrate judge now treats Defendants' special report
and supplements thereto as a motion for summary judgment and
concludes that summary judgment is due to be granted in favor
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 issue
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). “[A] party seeking summary judgment always
bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those
portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any,' which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
see also Williamson Oil Co., Inc. v. Phillip Morris
USA, 346 F.3d 1287, 1298 (11th Cir. 2003); Jeffery
v. Sarasota White Sox, Inc., 64 F.3d 590, 593 (11th Cir.
1995). 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 meets
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 Cir. 2011).
the movant meets its evidentiary burden, the burden shifts to
the other party to establish, with appropriate evidence
beyond the pleadings, that a genuine dispute of material fact
exists. Clark v. Coats & Clark, Inc., 929 F.2d
604, 608 (11th Cir. 1991); Celotex, 477 U.S. at 324.
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). The 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
Pub. Educ. for Bibb Cty., 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 omitted).
proceed beyond the summary judgment stage, an
inmate-plaintiff may not rest upon his pleadings but must
produce “sufficient [favorable] evidence” which
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. Sw. Forest Indus.,
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 S. Ry. 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
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, 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. Sec'y of the Dep't of
Children and Family Svs., 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; Brown v. Crawford,
906 F.2d 667, 670 (11th Cir. 1990). Thus, Traywick's
pro se status alone does not mandate this
Court's disregard of elementary principles of production
and proof in a civil case. The undersigned has undertaken a
thorough and exhaustive review of all the evidence contained
in the record. After such review, the undersigned finds that
Traywick has failed to demonstrate any genuine dispute of
material fact that precludes entry of summary judgment in
favor of Defendants.
Amended Complaint, Plaintiff alleges that on March 14,
he “requested protective custody in fear for his life
due to these conditions of inadequate security.” (Doc.
10) at 5. Specifically, he alleged that Governor Bentley,
Commissioner Dunn, Warden Ellington, and Janet LeJune,
“implemented customs and policies that caused the
plaintiff to suffer injury and harm by . . . placing him in
an institution, and or dorm without personel [sic] ADOC to
see over this safety.” Id. He further alleged
that Lieutenant Kahdra Davis denied his request for
protective custody and ordered certain defendant Correctional
Officers to “physically place [him] with force in a
population dorm.” Id. at 6.
alleged that Lieutenant Philyaw and Sergeant Pettway
instructed other officers to carry out this order and
officers Johnson, Murray, Mayes and Thorton, “picked
the plaintiff up by legs and arms and tossed him on his back
upon a concrete floor” into a population dorm cell.
Id. He alleged that as a result of this assault he
suffered from back pain and loss of bladder control.
Id. He also alleged that, in retaliation for his
Complaint concerning this assault and the “inadequate
security, ” he was placed in segregation and Lieutenant
Davis “ordered the confiscation of the plaintiff's
mail, ” which Officer Chappell carried out.
deny that Plaintiff was thrown on his back onto a concrete
floor in F-Dormitory. Rather, Lt. Philyaw states in his
affidavit that, upon finding Plaintiff in the barber shop
after he was ordered to relocate from B-Dormitory to
F-Dormitory, the facts occurred as follows:
Inmate Traywick refused to report back to F-Dorm. Sgt. Jackie
Pettway along with Officers Samuel Johnson, David Free, and
me escorted inmate Traywick back to F-Dorm without incident.
Upon arrival at the dorm entrance door, inmate Traywick
kneeled down and placed his hands behind his head and stated
that he was not going inside the dorm. Officer Johnson
instructed inmate Traywick to stand to his feet. Inmate
Traywick looked around and observed that Sgt. Pettway,
Officer Free and I were present. Officer Johnson touched
inmate Traywick on his left shoulder and instructed him again
to stand up and go inside F-Dorm. Inmate Traywick complied.
Officer Johnson then placed his personal property inside the
dorm and secured the gate. During this incident, no force was
used on inmate Traywick.
(Doc. 35-6). Although many of the details underlying this
action are disputed, there is no dispute that Plaintiff was
ordered to relocate himself and his belongings from
B-Dormitory to F-Dormitory at Draper and that he refused to
follow this direct order on more than one occasion. (Doc. 10)
at 5-6; (Doc. 35-2) at 1-2; (Doc. 35-4); (Doc. 35-5); (Doc.
35-11); (Doc. 35-12). Indeed, Plaintiff does not deny that he
refused to report to F-Dormitory and that, upon being
escorted to F-Dormitory by correctional officers, he
physically resisted placement in his cell. As a result of
disobeying a direct order, Plaintiff was placed in
March 16, 2016, two days after the alleged excessive force
and following Traywick's placement in segregation, a body
chart was conducted on Traywick. This body chart states
“no markings noted on skin.” (Doc. 35-14) at 15.
On the same day, Traywick lodged a sick call request noting
“I was thrown down on my back by ADOC officials on
3-14-16. Back pain is unbearable and have no blatter [sic]
control.” (Doc. 35-14) at 14. On March 18, 2016,
Traywick was evaluated by medical staff and treated with
ibuprofen. The nursing encounter report noted that Plaintiff
injured his back about five years ago. Id. at 12-13.
March 22, 2016, another body chart was performed on Plaintiff
where he declared “I'm on a hunger strike”
and which stated “[n]o wounds noted on
assessment.” Id. at 11. Subsequent body charts
performed on March 29 and March 30, 2016, also include no
references to a back injury or any reports of back pain.
Rather, Plaintiff again reported that he was not eating.
Id. at 9-10. The record reflects that
Plaintiff's next complaint of back pain did not occur
until April 4, 2016 when he was treated by a nurse
practitioner. Id. at 8.
March 23, 2016, Segregation Officer Kendrick Chappell
informed Lieutenant Davis that he had located a suspicious
piece of mail in the segregation cubicle. (Doc. 35-5) at 2;
(Doc. 35-10). The envelope identified James Cooley as the
sender and Tabby White as the recipient. (Doc. 35-5) at 2;
(Doc. 35-10); (Doc. 35-13) at 74. However, inmate Cooley was
not assigned to the segregation unit but instead was assigned
to B-Dormitory. (Doc. 35-5) at 2; (Doc. 35-10). It was
determined that Plaintiff was the author of the letter. (Doc.
35-5) at 2; (Doc. 35-10). The three-page letter contained in
the envelop stated “P.S. I placed someone's name on
return address cause I'm afraid they will try and
intercept my mail.” (Doc. 35-13) at 73. The letter also
stated that Plaintiff had received a disciplinary action and
was planning to file a lawsuit against the ADOC for failing
to follow their standard ...