Opinion
7:19-CV-155 (WLS)
02-07-2022
CHRISTOPHER BEAL, Plaintiff, v. Warden SHAWN EMMONS, et al., Defendants.
ORDER AND RECOMMENDATION
THOMAS Q. LANGSTAFF UNITED STATES MAGISTRATE JUDGE
Plaintiff, proceeding pro se, initiated this action pursuant to 42 U.S.C. § 1983 on September 12, 2019. (Doc. 1). On March 12, 2021, Defendants Shawn Emmons, Len Gibson, Hunter Hall, Avery Moody, and Jennifer Wolters (“VSP Defendants”) filed a Motion to Dismiss (Doc. 218) and Defendant William Wilkerson filed a Motion to Dismiss (Doc. 219). Plaintiff filed the following motions: Motion for three-judge consideration (Doc. 216); Motion for Summary Judgment (Doc. 231); Motion for Preliminary Injunction (Doc. 232); Motion to add joinder (Doc. 240); Motion to Alter Relief (Doc. 246); Motion to Alter Relief for Preliminary Injunction (Doc. 247); Motion requesting approval to file claims (Doc. 249); amended Motion for Summary Judgment (Doc. 269).
Defendant Jennifer Wolters is referred to as “Jennifer Waters” on the Court's docket. The Court will refer to Defendant Wolters as indicated in her Brief. (Doc. 218-1). The Clerk is DIRECTED to make this change to Defendant Wolters' name on the docket.
The Court first addresses Plaintiff's Motion to add joinder, Motions to Alter Relief, and Motion requesting approval to file claims in an Order. The Court concludes with a Recommendation as to Defendants' Motions to Dismiss, and Plaintiff's Motions for Summary Judgment, Motion for three-judge consideration, and Motion for Preliminary Injunction.
ORDER
Motion to Add Joinder
On April 23, 2021, Plaintiff filed a Motion to add joinder. (Doc. 240). Plaintiff appears to clarify which Defendants he alleges claims against. Id. However, a review of the Court's docket shows that the Court's docket conforms to Plaintiff's clarification. Accordingly, Plaintiff's Motion to add joinder (Doc. 240) is DENIED as moot.
Motions to Alter Relief
On May 6, 2021, Plaintiff filed a Motion to Alter Relief. (Doc. 246). Plaintiff seeks to alter the relief he proposed in his Motion for Summary Judgment. Id. (referencing Doc. 231). However, as the Court recommends that Plaintiff's Motion for Summary Judgment (Doc. 231) be denied, Plaintiff's Motion to Alter Relief (Doc. 246) is DENIED as moot.
Also on May 6, 2021, Plaintiff filed a Motion to Alter Relief for Preliminary Injunction. (Doc. 247). Plaintiff seeks to alter the relief he proposed in his Motion for Preliminary Injunction. Id. (referencing Doc. 232). However, as the Court recommends that Plaintiff's Motion for Preliminary Injunction (Doc. 232) be denied, Plaintiff's Motion to Alter Relief for Preliminary Injunction (Doc. 247) is DENIED as moot.
Motion to File Claims
On May 28, 2021, Plaintiff filed a Motion requesting the Court's approval or leave to file claims pursuant to Federal Rules of Civil Procedure 4 and 5 and the Local Rules of the Middle District of Georgia. (Doc. 249). Before proceeding further, the Court notes that Plaintiff is proceeding pro se, and the Court will apply the deferential standard applicable to pro se litigants and will construe Plaintiff's motions in order to do substantial justice. Wright v. Newsome, 795 F.2d 964, 967 (11th Cir. 1986) (per curiam) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Fed. R. Civ. Pro. 8(f)). The Court finds three ways in which to construe Plaintiff's request.
First, Plaintiff appears to request personal service on each Defendant. (Doc. 249, p. 1). However, all Defendants have already been served. As a result, to the extent that Plaintiff requests personal service on each Defendant, Plaintiff's request is DENIED as moot.
Second, Plaintiff may be requesting permission of the Court to file electronically in this case pursuant to Local Rule 5.0(A). The Court finds that Plaintiff has not shown good cause to grant him permission to file electronically in this case. Plaintiff has successfully filed in excess of two hundred (200) filings in three (3) related (and now consolidated) cases. Plaintiff has not been prejudiced by any apparent delay in his ability to respond to Defendants' filings, as his responses to Defendants' motions have all been timely. Further, Plaintiff's filings have been so numerous that the Court previously granted a protective Order relieving Defendants of the obligation to respond absent a directive from the Court. (Doc. 150). There, the Court found the volume of Plaintiff's frivolous filings to be an abuse of the Court's resources. Id. Based on Plaintiff's volume of frivolous filings, the Court finds that providing Plaintiff access to electronically file in this case poses a serious risk of abusing the Court's resources to the detriment of other litigants. Procup v. Strickland, 792 F.2d 1069, 1074 (11th Cir. 1986) (“The court has a responsibility to prevent single litigants from unnecessarily encroaching on the judicial machinery needed by others.”). In so finding, the Court does not express an opinion as to any of Plaintiff's pending filings or those which he may file in the future. Accordingly, to the extent Plaintiff requests permission to file electronically in this case, his request is DENIED.
Third, Plaintiff appears to request the Court's facilitation in obtaining discovery admissions from Defendants. (Doc. 249, p. 1). To the extent Plaintiff seeks these documents from the Court, his request is DENIED. As was explained to Plaintiff in the Court's Order directing service, the Federal Rules of Civil Procedure authorize parties to seek discovery from one another, and discovery materials are not to be filed with the Court. (Doc. 11, pp. 23-24). The Court will not conduct discovery for Plaintiff.
To the extent Plaintiff seeks these documents from Defendants, his request is also DENIED. Discovery in this matter is stayed as to all Defendants. (Docs. 235, 263). Accordingly, Plaintiff's Motion (Doc. 249) is DENIED.
RECOMMENDATION
Procedural Background
This matter involves three separate actions which have since been consolidated into the present action. On September 12, 2019, Plaintiff filed the present action (“Beal I”). (Doc. 1). After Plaintiff amended his Complaint twice (Docs. 4, 5), the Court permitted the following to proceed after initial screening of Plaintiff's second amended Complaint: (1) a claim for deliberate indifference to safety against Defendant Warden Shawn Emmons; (2) a claim for excessive force against Defendant Captain Jimmy Miles; (3) claims for failure to intervene and deliberate indifference to safety against Defendant Unit Manager LeeAnna Smith; and (4) a claim for deliberate indifference to a serious medical need against Defendant Medical Director Dr. Avery Moody (Doc. 11, pp. 1-2). On January 10, 2020, Plaintiff moved to amend (Doc. 32) his second amended Complaint, and the Court granted-in-part and denied-in-part his amendment, such that Defendant Officer Hillary Coleman was joined and a claim for deliberate indifference to safety proceeded against Defendant Coleman (Doc. 34, pp. 5-8).
Document citations are to Beal v. Emmons, et al., No. 7:19-CV-155 (M.D. Ga.) unless otherwise indicated.
On February 18, 2020, Defendants Emmons, Miles, Smith, Moody, and Coleman filed a Motion to Dismiss. (Doc. 53). In their Motion, they argued that Plaintiff's claims against them for damages in their official capacities were barred by the Eleventh Amendment and the text of 42 U.S.C. § 1983; that Plaintiff had failed to exhaust his available administrative remedies concerning his claims against Defendants Emmons, Moody, and Coleman; that Plaintiff failed to state a claim under Georgia law; and that Plaintiff failed to state a claim for injunctive relief. (Doc. 53-1, pp. 6-7, 7-17, 17-18, 18-20, respectively). The Court granted dismissal of any claims in which Plaintiff sought monetary damages from Defendants Smith, Miles, and Coleman in their official capacities; granted dismissal to Defendants Emmons and Moody for Plaintiff's failure to exhaust his administrative remedies; denied dismissal to Defendant Coleman as to Plaintiff's alleged failure to exhaust his administrative remedies; granted dismissal as to any state law claims; and granted dismissal as to Plaintiff's claims for injunctive relief. (Docs. 98, 115).
While Defendants Emmons, Miles, Smith, Moody, and Coleman's Motion to Dismiss was pending, Plaintiff filed two more actions concerning the same events already at issue. On March 10, 2020, Plaintiff filed the case styled Beal v. Ga. Dep't of Corrs., et al., No. 7:20-CV-42 (M.D. Ga.) (“Beal II”). (Beal II Doc. 1). At the initial review of Plaintiff's recast Complaint and amendments thereto, the Court permitted the following to proceed: (1) a claim for excessive force against Defendant Sergeant Hall; (2) a claim for deliberate indifference to a serious medical need against Defendant Dr. Avery Moody; and (3) claims for deliberate indifference to safety against Defendant Administration Warden Len Gibson, Defendant Officer Jennifer Wolters, and Defendant Warden Shawn Emmons. (Beal II Docs. 18, 39). Plaintiff's remaining claims were dismissed. (Beal II Docs. 18, 39).
On July 28, 2020, Plaintiff filed the case styled Beal v. Hall, et al., No. 7:20-CV-146 (M.D. Ga.) (“Beal III”). (Beal III Doc. 1). At the initial review of Plaintiff's recast Complaint and amendments thereto, the Court permitted a claim for failure to intervene against Defendant Officer Wilkerson to proceed. (Beal III Docs. 13, 24). Plaintiff's remaining claims were dismissed. (Beal III Docs. 13, 24).
Subsequently, Beal II and Beal III were consolidated into the present action. (Beal II Docs. 18, 39; Beal III Docs. 13, 24).
Plaintiff's Allegations
Plaintiff sets forth the following relevant allegations concerning conditions of his incarceration at Valdosta State Prison (“VSP”).
On March 13, 2019, Plaintiff was stabbed in his left eye by three (3) inmates. (Beal II Doc. 14, p. 6). The next day, Plaintiff saw an ophthalmologist and was told that his left eyeball was crushed and may need a couple of months to heal. Id. The ophthalmologist suggested that Plaintiff should be placed somewhere safer to avoid further damage to his eye. Id. Rather than being placed in the infirmary to heal, Plaintiff was placed in the K-2 Tier lockdown unit. Id.
Every day, Plaintiff asked Defendant Emmons to move Plaintiff to a less violent dormitory. Id. Plaintiff was released from the lockdown unit on March 26, 2019, at which time he was moved to the D-1 dormitory. Id. Plaintiff told Defendant Emmons on multiple occasions that Plaintiff was not a gang member and had, in fact, been targeted by gang members for abuse. Id. Plaintiff alleges that Defendant Emmons knew that VSP housed some of the most violent inmates and gang members, that the prison was understaffed, and that the understaffing would place Plaintiff in a violent environment. Id. at 5.
On April 22, 2019, Plaintiff was assaulted by a member of the “Bloods” gang. Id. at 6. In that assault, Plaintiff was repeatedly punched in the face, causing his eye to bleed. Id. Plaintiff alleges that there were not enough guards working at the time to ensure his safety. Id. After the assault, Plaintiff was taken to the hospital where he was informed that half his face was fractured, his eye was severely damaged, and he needed plastic surgery. Id. On his return to VSP, Plaintiff was taken to the infirmary. Id. Two days later, Plaintiff went back to see the ophthalmologist, who told Plaintiff that he needed plastic surgery within two weeks to avoid severe complications with his vision. Id. at 6-7. Plaintiff was then returned to his cell in the infirmary at VSP. Id. at 7.
That same day, Defendants Smith and Miles came to Plaintiff's cell in the infirmary and told him that he was being moved to E Building. Id. Plaintiff explained that he needed to have plastic surgery and could not defend himself, but Defendant Smith made it clear that she did not care. Id. Defendant Smith then pointed at Defendant Miles, who cracked his knuckles and indicated that he would make sure that Plaintiff came out of his cell. Id. When Plaintiff did not come out on his own, Defendant Smith opened the cell door, and Defendant Miles and two others entered the cell. Id. Plaintiff put his hands in the air to show he was complying and was put in restraints with no issues. Id. Defendant Smith then yelled that Plaintiff had a knife, which Plaintiff alleges was not true. Id. Defendant Miles punched Plaintiff in the face, and the other two officers slammed Plaintiff down and held him on the floor. Id. One of the two other officers was Defendant Hall. Id. at 2-3. Defendant Miles sat on Plaintiff's back and strangled him from behind. Id. at 7. Only when Plaintiff stopped moving did Defendant Miles stop strangling Plaintiff. Id. Defendant Wilkerson was present during the altercation. (Beal III Doc. 8, p. 3). Plaintiff alleges that Defendant Wilkerson knew in advance that excessive force was going to be used against Plaintiff. Id. According to Plaintiff, despite knowing this in advance, Defendant Wilkerson recorded the excessive force on camera and disregarded the need to give aid to Plaintiff. Id.
On May 15, 2019, Defendant Moody sent Plaintiff to Augusta State Medical Prison to meet with a plastic surgeon, who told Plaintiff that his face had healed irregularly because of the delay in bringing Plaintiff for treatment. (Beal II Doc. 14, p. 7). The surgeon told Plaintiff that, in order to fix the damage, he would have to re-break Plaintiff's face, which would create a risk that Plaintiff would go blind. Id. Plaintiff asserts that Defendant Moody knew that Plaintiff needed quick medical attention, based upon Defendant Moody's notes in Plaintiff's medical file, but failed to respond reasonably to Plaintiff's medical need. Id. at 8.
On October 4, 2019, Plaintiff's roommate twice threatened to kill Plaintiff. Id. Plaintiff informed Defendant Coleman during the nightly count. Id. Defendant Coleman told Plaintiff she would speak to him after the count, at which point she took Plaintiff outside to the sally port of the building. Id. Plaintiff explained that he did not feel safe because his roommate threatened to kill him, to which Defendant Coleman asked Plaintiff what he wanted her to do. Id. Plaintiff asked her to tell a supervisor because he was still having vision problems related to the previous altercations. Id. Defendant Coleman commented that Plaintiff's roommate was crazy, and Plaintiff said that he did not want to go back in the cell with his roommate. Id. At some point, Plaintiff also told Defendant Wolters about his concerns about his roommate. Id. at 4-5.
After Plaintiff spoke to Defendant Coleman, Plaintiff saw his roommate standing at the door to the dorm “with an evil look on his face.” Id. at 8. Defendant Coleman also saw Plaintiff's roommate, but she told Defendant Wolters, who was in the control booth, to open the B-1 door. Id. at 5, 8. As the door opened, Plaintiff's roommate held Plaintiff at knifepoint. Id. at 5, 8. The door then shut, and Plaintiff was trapped in the sally port with his roommate. Id. at 5, 8. Plaintiff yelled for Defendants Coleman and Wolters to open the door, and Plaintiff's roommate began stabbing Plaintiff. Id. at 5, 8. According to Plaintiff, Defendant Coleman stood there and watched for five (5) minutes as Plaintiff's roommate stabbed him until more officers arrived. Id. at 8. Plaintiff said that Defendant Coleman waited until the other officers arrived to open the door. Id.
Discussion
A motion to dismiss can be granted only if a complaint, with all factual allegations accepted as true, fails to “raise a right to relief above the speculative level[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully.Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted) (quoting Twombly, 550 U.S. at 556, 570).
A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). “Specific facts are not necessary; the statement need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, et al., 551 U.S. 89, 93 (2007) (internal quotations omitted) (alteration in original). However, the pleading must contain “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
VSP Defendants
The VSP Defendants filed a Motion to Dismiss, arguing that they are entitled to dismissal because (1) Plaintiff's official capacity claims against Defendants are barred by the Eleventh Amendment and the text of 42 U.S.C. § 1983; and (2) Plaintiff lacks standing to pursue claims for declaratory and injunctive relief. (Doc. 218-1). Plaintiff filed a Response to the VSP Defendants' Motion to Dismiss. (Doc. 227).
Eleventh Amendment and Official Capacity Claims
The VSP Defendants argue that Plaintiff's official capacity damages claims against them must be dismissed pursuant to the Eleventh Amendment and the text of § 1983. (Doc. 218-1, p. 7). Plaintiff stated in his Response that he does not seek monetary damages against Defendant Emmons in his official capacity. (Doc. 227, p. 13). Therefore, the Court only considers the VSP Defendants' Motion to Dismiss as to any official capacity damages claims against the remaining identified VSP Defendants.
“Unless a State has waived its Eleventh Amendment immunity or Congress has overridden it . . . a State cannot be sued directly in its own name regardless of the relief sought.” Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985) (citing Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam)). This immunity also extends to state agencies and state officers. “[A] judgment against a public servant ‘in his official capacity' imposes liability on the entity that he represents[.]” Id. at 169 (quoting Brandon v. Holt, 469 U.S. 464, 471 (1985)). The Court has repeatedly held that “§ 1983 does not override a State's Eleventh Amendment immunity[.]” Will v. Mich. Dep't of State Police, 491 U.S. 58, 63 (1989); see also Quern v. Jordan, 440 U.S. 332, 341 (1979); Graham, 473 U.S. at 169 n.17 (citing Quern, 440 U.S. 332). Further, the District Court for the Middle District of Georgia previously considered the Eleventh Amendment and sovereign immunity in § 1983 official capacity damages claims against state prison official defendants and found that such claims were barred. Ramey v. Ga. Dep't of Corrs., 153 F.Supp.2d 1382, 1387 (M.D. Ga. 2001). Accordingly, the Court recommends that Plaintiff's claims for damages against the identified VSP Defendants in their official capacities be dismissed.
Declaratory and Injunctive Relief
The VSP Defendants argue that the Court lacks subject matter jurisdiction over Plaintiff's claims for declaratory and injunctive relief against them because Plaintiff lacks standing to pursue such claims. (Doc. 218-1, p. 8). Plaintiff responds that (1) the VSP Defendants waived their right to challenge the Court's Order and Recommendation permitting Plaintiff's claims for declaratory and injunctive relief by failing to object to the Order and Recommendation within fourteen (14) days; and (2) Plaintiff alleges that he has presented factual matter sufficient to state such claims. (Doc. 227, p. 13).
To invoke a federal court's jurisdiction, a plaintiff must show
(1) [that he] has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.Koziara v. City of Casselberry, 392 F.3d 1302, 1304-05 (11th Cir. 2004) (citing Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)).
Where a federal plaintiff seeks injunctive or declarative relief, he must “prove not only an injury, but also ‘a real and immediate threat' of future injury in order to satisfy the ‘injury in fact' requirement.” Id. at 1305 (quoting Nat'l Parks Conservation Ass'n v. Norton, 324 F.3d 1229, 1241 (11th Cir. 2003)). “Absent a sufficient likelihood that he will again be wronged in a similar way, ” such a plaintiff “is no more entitled to an injunction than any other citizen . . . and a federal court may not entertain a claim by any or all citizens who no more than assert that certain practices” violate their rights. City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983).
Here, Plaintiff argues that he has presented factual matter sufficient to state claims for declaratory and injunctive relief in his three (3) Complaints. (Doc. 227, p. 13). In his second amended Complaint, Plaintiff alleges that he is “redressing a[n] ongoing violation of [his] ‘federal rights' and ‘policies' that are not being ‘upheld' by ‘paid government officials.'” (Doc. 5, p. 8). Further, Plaintiff alleges that he “has been and will continue to be irreparably injured by the conduct of the defendants unless this court grants the declaratory and injunct[ive] relief which [he] seeks.” Id. at 22.
While Plaintiff alleges in his Motion to Amend that he “lives his life now in fear being vulnerable to injury at any time of any day because of the defendants unprincipled actions . . .” (Doc. 32-1, p. 13), the Court granted Plaintiff's Motion to Amend only to the extent that he added a deliberate indifference to safety claim against Defendant Hillary Coleman and amended his prayer for relief (Doc. 34, pp. 8-9). Defendant Coleman did not join the VSP Defendants' Motion to Dismiss. As such, the Court does not consider the allegations quoted in this footnote at this time.
Other than a conclusory allegation of an ongoing violation of his federal rights, Plaintiff's allegations only concern redressing past alleged harms. Plaintiff must have shown a “‘real and immediate threat' of future injury” to have standing to seek declaratory and injunctive relief. Koziara, 392 F.3d at 1305. Plaintiff has not alleged a sufficient likelihood that he will be wronged in a similar way in the future. As such, the Court finds Plaintiff lacks standing to pursue declaratory and injunctive relief against these VSP Defendants. Id. at 1305-06 (“That [the plaintiff] may have been illegally choked by the police[, ] while presumably affording [the plaintiff] standing to claim damages against the individual officers and perhaps against the City, does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part.”) (quoting Lyons, 461 U.S. at 105). Accordingly, the Court recommends that Plaintiff's claims for declaratory and injunctive relief against these VSP Defendants be dismissed.
Defendant Wilkerson
Defendant Wilkerson filed a Motion to Dismiss arguing that he is entitled to dismissal because he is entitled to qualified immunity. (Doc. 219-1, p. 7). Plaintiff filed a Response to Defendant Wilkerson's Motion to Dismiss. (Doc. 227).
Defendant Wilkerson initially moved to dismiss Plaintiff's official capacity damages claims against him. (Doc. 219-1, p. 5). However, in his Response, Plaintiff responded that he has not asserted official capacity claims against Defendant Wilkerson. (Doc. 227, p. 12). Therefore, the Court only considers Defendant Wilkerson's Motion to Dismiss as to qualified immunity.
Qualified Immunity
“Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established' at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). “Qualified immunity is an affirmative defense to personal liability that can be asserted on a pretrial motion to dismiss under Rule 12(b)(6) for failure to state a claim.” Ledea v. Metro-Dade Cnty. Police Dep't, 681 Fed.Appx. 728, 729 (11th Cir. 2017) (citing Skrtich v. Thornton, 280 F.3d 1295, 1306 (11th Cir. 2002)).
“At the motion to dismiss stage in the litigation, ‘the qualified immunity inquiry and the Rule 12(b)(6) standard become intertwined.'” Id. (quoting Keating v. City of Miami, 598 F.3d 753, 760 (11th Cir. 2010)). The standard used by the Court at the initial review stage is the same as the standard used at the motion to dismiss stage in that the Court accepts all factual allegations in the complaint as true. Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004).
Defendant Wilkerson does not appear to argue that the events he witnessed were not constitutional violations. Rather, he argues that he is entitled to qualified immunity because there is no clearly established law that would have put him on notice that any of his alleged actions would violate the Constitution. (Doc. 219-1, p. 10). However, when the Court considered Plaintiff's allegations against Defendant Wilkerson on initial review of Plaintiff's Complaint, the Court found that Plaintiff alleged a constitutional violation of excessive force, and that Defendant Wilkerson was in a position to intervene and failed to do so. Beal v. Hall, et al., No. 7:20-CV-146 (M.D. Ga.) (“Beal III”) (Doc. 13, p. 8).
“Prison correctional officers may be held directly liable under § 1983 if they fail or refuse to intervene when a constitutional violation occurs in their presence.” Williams v. Scott, 433 Fed.Appx. 801, 805 (11th Cir. 2011) (affirming the denial of qualified immunity at summary judgment because the prisoner-plaintiff had alleged facts sufficient to show a genuine issue of material fact as to whether the prison official defendant had been in a position to intervene when he witnessed a fellow prison official beat the prisoner-plaintiff) (citing Ensley v. Soper, 142 F.3d 1402, 1407 (11th Cir. 1998)); see also Ledea, 681 Fed.Appx. at 729-30 (affirming the denial of a motion to dismiss based on qualified immunity because the arrestee-plaintiff had alleged facts in his complaint sufficient to show that his constitutional rights were violated by the officer-defendants' failure to intervene when they witnessed fellow officers beat the arrestee-plaintiff).
In Williams, the Eleventh Circuit “reject[ed]” the prison official defendant's argument “that the law was not clearly established that he could be held liable for failing to intervene” when he witnessed another prison official beat the prisoner-plaintiff. Williams, 433 Fed.Appx. at 805 n.5. The Court cited Ensley for the proposition that “[i]t is clear that if a police officer, whether supervisory or not, fails or refuses to intervene when a constitutional violation such as an unprovoked beating takes place in his presence, the officer is directly liable under Section 1983.” Id. (quoting Ensley, 142 F.3d at 1407).
In 2007, the Eleventh Circuit again cited Ensley when it upheld the denial of qualified immunity on a motion to dismiss based upon the officer-defendants' alleged failure to intervene where the plaintiff alleged acts of excessive force and that each of the defendants was in the vicinity of the attacks and capable of intervening to prevent the unnecessary force. Dukes v. Miami-Dade Cnty., 232 Fed.Appx. 907, 913 (11th Cir. 2007) (citing Ensley, 142 F.3d at 1407). Ensley was decided in 1998. The events at issue here occurred in 2019.
Finally, in this Court's initial review as to Plaintiff's failure to intervene claim against Defendant Wilkerson, the Court cited case law from 2008 which held that an officer who is present and in a position to intervene to prevent another officer's use of excessive force may be held liable for the failure to take reasonable steps to protect a victim of excessive force. (Beal III Doc. 13, p. 8) (citing Hadley v. Gutierrez, 526 F.3d 1324, 1331 (11th Cir. 2008)). In his Response, Plaintiff asserts that Defendant Wilkerson is not entitled to qualified immunity by citing Hadley. (Doc. 227, p. 12).
The Court finds that the law was clearly established at the time of the alleged acts. Accordingly, Defendant Wilkerson's Motion to Dismiss should be denied as to qualified immunity.
Injunctive Relief
Defendant Wilkerson moved to dismiss Plaintiff's claims against him for injunctive relief. (Doc. 219-1, p. 12). The Court found, above, that Plaintiff lacked standing to pursue claims for injunctive relief against the identified VSP Defendants. The Court likewise finds that Plaintiff lacks standing to pursue claims for injunctive relief against Defendant Wilkerson because Plaintiff has not shown a “‘real and immediate threat' of future injury[.]” Koziara, 392 F.3d at 1305. Accordingly, the Court recommends that Defendant Wilkerson's Motion to Dismiss should be granted as to Plaintiff's claims for injunctive relief.
Plaintiff's Motions
Motion for Three-Judge Court
On March 4, 2021, Plaintiff filed a request for a three-judge court consideration and release order pursuant to 18 U.S.C. § 3626. (Doc. 216).
However, the Court is precluded from entering a prisoner release order unless the Court has previously entered an order for less intrusive relief that failed to remedy the deprivation of the federal right sought to be remedied through the prison release order and the defendant has had a reasonable amount of time to comply with the previous orders. 18 U.S.C. § 3626(a)(3). Here, the Court has not entered an order for any relief to remedy an alleged deprivation of Plaintiff's federal rights. As a result, the Court finds Plaintiff has not met the requirements of subparagraph (A) of 18 U.S.C. § 3626(a)(3) and the Court recommends denying Plaintiff's request for a three-judge court consideration and release order (Doc. 216).
Motions for Summary Judgment
On April 12, 2021, Plaintiff filed a Motion for Summary Judgment (Doc. 231), and on September 22, 2021, Plaintiff filed what the Court construes as an amended Motion for Summary Judgment (Doc. 269). Plaintiff's Motions consist of conclusory legal claims and the elements thereof, recasting of allegations already made in his Complaints, and recitations of case law. (Docs. 231, 269). Plaintiff also attached several of his own Declarations to his Motion for Summary Judgment. (Doc. 231-7).
As the party moving for summary judgment, Plaintiff “always bears the initial responsibility of informing the district court of the basis for [his] motion, ” and identifying those portions of the record, including pleadings, discovery materials, and affidavits, “which [he] believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323.
The Court finds that Plaintiff has not met his initial burden to inform the Court of the basis for his Motions for Summary Judgment or in demonstrating the absence of a genuine dispute as to any material fact. Plaintiff's Motions consist of conclusory allegations and Plaintiff has not pointed to the absence of a genuine issue of material fact in support thereof. Accordingly, the Court finds Plaintiff is not entitled to summary judgment as a matter of law and recommends denying Plaintiff's Motion for Summary Judgment (Doc. 231) and denying Plaintiff's amended Motion for Summary Judgment (Doc. 269). Clark v. Coats & Clark, Inc., 929 F.2d 604, 609 (11th Cir. 1991) (declining to “discharge the movant's Rule 56 responsibility of searching the record and identifying material in support of its motion” for summary judgment).
Motion for Preliminary Injunction
On April 12, 2021, Plaintiff filed a Motion for Preliminary Injunction. (Doc. 232). Plaintiff seeks an order from this Court enjoining Defendants from inflicting pain and cruel and unusual punishment upon Plaintiff. (Doc. 232-4).
However, as the Court found, above, Plaintiff has not alleged a “‘real and immediate threat' of future injury” such that he would have standing to seek injunctive relief. Koziara, 392 F.3d at 1305. Plaintiff has not alleged a sufficient likelihood that he will be wronged in a similar way. As such, the Court finds Plaintiff lacks standing to pursue injunctive relief. Id. at 1305-06.
Even if Plaintiff had standing to seek injunctive relief, Plaintiff's Motion for Preliminary Injunction appears to be, in substance, an injunction commanding Defendants to “obey the law.” Plaintiff seeks an order from this Court directing Defendants to not wantonly inflict pain and cruel and unusual punishment. Defendants are already required to refrain from doing so under the Constitution. Accordingly, the Court recommends denying Plaintiff's Motion for Preliminary Injunction. (Doc. 232). See Hughey v. J.M.S. Dev. Corp., 78 F.3d 1523, 1531 (11th Cir. 1996) (“appellate courts will not countenance injunctions that merely require someone to ‘obey the law.'”).
Conclusion
Therefore, for the above stated reasons, it is RECOMMENDED that Defendants Emmons, Gibson, Hall, Moody, and Wolters' Motion to Dismiss (Doc. 218) be GRANTED. If adopted, this recommendation will result in Defendant Emmons being dismissed from the case as he was only sued in his official capacity for equitable relief. It is further RECOMMENDED that Defendant Wilkerson's Motion to Dismiss (Doc. 219) be GRANTED-in-part and DENIED-in-part, it is RECOMMENDED that Plaintiff's Motion for Three-Judge Court (Doc. 216) be DENIED, it is RECOMMENDED that Plaintiff's Motion for Summary Judgment (Doc. 231) and amended Motion for Summary Judgment (Doc. 269) be DENIED, and it is RECOMMENDED that Plaintiff's Motion for Preliminary Injunction (Doc. 232) be DENIED.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The District Judge shall make a de novo determination as to those portions of this Recommendation to which objection is made; all other portions of this Recommendation may be reviewed by the district judge for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO ORDERED AND RECOMMENDED, this 7th day of February, 2022.