Opinion
No. 5:16-cv-170-TES-CHW
07-30-2018
TERENCE BIGGERS Jr., Plaintiff, v. C NAPIER, et al., Defendants.
Proceedings Under 42 U.S.C. § 1983 Before the U.S. Magistrate Judge
REPORT AND RECOMMENDATION
Before the Court is a Motion for Summary Judgment filed by Defendants Napier, Holley, Gore and Lamar. (Doc. 25). Because the Defendants are entitled to qualified immunity, it is RECOMMENDED that their Motion be GRANTED. Additionally, for the reasons discussed below, it is hereby ORDERED that Plaintiff's pending discovery motions (Docs. 34, 37, 38, 45) are DENIED.
PROCEDURAL HISTORY
This Section 1983 action arose from two alleged excessive-force incidents: one occurring on March 14, 2016, and the other occurring on May 3, 2016. (Doc. 5, pp. 6-8). The Court previously dismissed Plaintiff's claim relating to the May 3 incident due to Plaintiff's failure to exhaust his administrative remedies as required by the Prison Litigation Reform Act. (Doc. 33). The Court entered that Order of Dismissal after the Defendants filed their pending Motion for Summary Judgment. (Doc. 25). Although the Defendants addressed the May 3 excessive-force incident in their pending Motion, only the March 14, 2016 excessive-force claim remains before the Court. (Doc. 33, p. 1). Accordingly, this Recommendation addresses only the alleged March 14, 2016 excessive-force incident.
PLAINTIFF'S DISCOVERY MOTIONS
In a section of this Court's Screening Order titled "Discovery," the Court informed Plaintiff that discovery would begin "[o]nce an answer or dispositive motion has been filed," and that discovery would "be completed within 90 days," absent an extension. (Doc. 12, pp. 12-13). Defendants Napier, Holley, Gore and Lamar filed their Answer on May 30, 2017, (Doc. 21), thereby initiating the 90-day discovery period. The parties filed no requests to stay or extend the discovery period, and the discovery period expired on August 28, 2017. The Defendants filed their pending Motion for Summary Judgment on September 22, 2017. (Doc. 25).
In April 2018, around six months after the Defendants filed their Summary Judgment Motion, the Court received four discovery motions from Plaintiff. (Docs. 34, 37, 38, 45). The Clerk identified three of those motions (Docs. 34, 37, 38) as motions to compel filed under Federal Rule of Civil Procedure 37. This Court does not entertain motions to compel absent certification that the movant in good faith conferred or attempted to confer with the opposing parties to secure a resolution without Court action. Fed. R. Civ. P. 37 (a)(1). Local Rule 37. The record demonstrates that Plaintiff failed to so confer. See (Doc. 35, p. 2; Doc. 42, p. 2). Given this failure by Plaintiff, and given also Plaintiff's undue delay in seeking discovery relief, Plaintiff's motions to compel are DENIED.
For similar reasons, Plaintiff's motion to reopen discovery (Doc. 45) is also DENIED. "Plaintiff's pro se status does not permit [him] to disregard deadlines." Slaughter v. Dooly Cnty., 2007 WL 2908648 at *5 (MDGA Sept. 28, 2007). This Court's Screening Order set out the discovery deadlines in clear terms, yet Plaintiff failed to file his motion to reopen discovery until around eight months after the close of discovery, and around six months after the Defendants filed their pending Motion for Summary Judgment. Because Plaintiff has not established cause for his delay in conducting discovery, and because Plaintiff failed to show shown that his delay was the result of "excusable neglect," Slaughter, 2007 WL at *5, Plaintiff is not entitled to a reopening of the discovery period at this late date.
SUMMARY JUDGMENT STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper "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." Fed. R. Civ. P. 56(a). The party moving for summary judgment bears the burden of informing the Court of the basis for its motion, and of citing "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," that support summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). In resolving motions for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014).
FACTS
Plaintiff's remaining excessive force claim relates to a March 14, 2016 incident at the Upson County Jail, where Plaintiff was detained pending prosecution on charges of armed robbery. In his "recast complaint," Plaintiff alleged that Defendants Lamar, Napier, and Gore assaulted Plaintiff due to Plaintiff's delay in gathering his legal paperwork from a common area and returning to his cell for the night. By Plaintiff's account in his recast complaint, Defendant Holley was not involved in the encounter:
By Plaintiff's account, Defendant Holley was not involved in the March 14, 2016 incident, but rather was involved only in the May 3, 2016 excessive-force incident which the Court previously dismissed for failure to exhaust. See (Doc. 12, p. 5; Doc. 33). Accordingly, should the Court reject the recommendation to grant the Defendants' Motion for Summary Judgment, it is alternatively RECOMMENDED that Defendant Holley be DISMISSED as a party.
On 3/14/16 [Defendant Lamar] was locking down D-pod. I had a lot of legal work on the table so she tell's me to hurry up. After a small debate [Defendant Napier]
came in and slam and kick me while [Defendant Lamar] stood to the side and giggled. Next [Defendant Gore] came in and said "Spray his ass! Beat em! Don't play with him spray his ass." So they did, next he told [Defendant Napier] to "Drag his ass to E pod, if he move spray em! Drag his ass, drag em!" I never got medical treatment then either and had a black eye and face was burning.
(Doc. 5, p. 8)
Nothing in Plaintiff's recast complaint suggests that Plaintiff was beaten or pepper-sprayed while handcuffed. By contrast, Plaintiff's description of the March 14, 2016 incident contained in an out-of-time affidavit (Doc. 41) suggests that Plaintiff was subject to force even after he was restrained by handcuffs:
On 03/14/16 defendant B. Lamar was in D-Pod locking doors for count. I was at a day room table with my legal work, which was a table full, so I ask her to give me a second to gather it all .... She was saying no leave it on the table because she was ready to get the fuck on and she had been at work all night .... Defendant Hutcherson told me to hurry and get it. I began but Defendant Lamar yelled "no I'm ready to go home I'm sick of this shit." I step at her in a genuine request and hands by my side and asked "my legal mail is personal information about my case I can't leave it .... As I attempted to get the rest of it defendant Hutcherson grabbed me out of nowhere and yelled "Get in your room!" I said "OK you don't have to snatch me up like that." Next he struck me in my face with a close fist then grabbed me and slammed me on the floor. At this point I'm caught off guard as he choke me. Defendant Napier was the first to run in and kick me before joining in on the beating. Next Defendant Gore came in.
Defendant Gore is a shift supervisor but made no attempt to stop this use of force even not knowing what happen. I was on the ground trying to block the malicious blows. Even when they handcuff me, if I was [aggressive] which I never was, I was restrain by cuffs so therefore no more need for force. I yell "Ima sue yall for this shit, it's police brutality." Next Gore yells in a craze way "Spray his ass, Spray
em!" Napier and Lamar sprayed me why I scream "I'm not doing nothing." Gore yells "Drag his ass to E Pod! Drag em" .... The force was excessive because I was no threat while secure in handcuffs.
(Doc. 41, pp. 2-3)
Plaintiff's reference in the affidavit to a "Defendant Hutcherson" is unexplained. No Defendant named Hutcherson is now before the Court, and Plaintiff has never requested leave of Court to amend his Complaint to add an officer named Hutcherson as a Defendant.
ANALYSIS
In their pending Motion for Summary Judgment, the Defendants present four arguments. Three of those arguments relate to procedural grounds barring, in part, Plaintiff's ability to recover damages in this action. As discussed below, Plaintiff may only potentially recover nominal damages from the Defendants, in their individual capacities. The Defendants' fourth argument addresses the merits of Plaintiff's due-process excessive-force claim. The Defendants claim qualified immunity, arguing that the evidence properly before the Court fails to show a violation of clearly established law. Because the record supports the Defendants' qualified immunity argument, it is RECOMMENDED that the Defendants' Motion for Summary Judgment be GRANTED.
Qualified immunity only bars claims for damages. See, e.g., Fortner v. Thomas, 983 F.2d 1024, 1029 (11th Cir. 1993) ("the district court erred in dismissing the appellants' claims for injunctive relief based on qualified immunity"). In the relief section of his "recast complaint," Plaintiff asked not only for damages, but also for an "Order [for the] Defendants to train staff to be more professional and not practice 'Police Brutality.'" (Doc. 5, p. 9). This amounts to a request for an unavailable "obey the law" injunction. See, e.g., Tarver v. Owens, 2015 WL 5317448 at *2 (MDGA Sept. 11, 2015). Furthermore, Plaintiff's transfer from the Upson County Jail renders his request for injunctive relief moot. Owens v. Sec'y, Fla. Dep't of Corr., 602 F. App'x 475, 476 (11th Cir. 2015) ("Prisoners' claims for injunctive or declaratory relief regarding prison conditions generally become moot when the prisoner transfers to another prison"). Accordingly, because Plaintiff is not entitled to the injunctive relief he requested, the Defendants' argument for qualified immunity is potentially dispositive of this action, in its entirety.
A. Available Remedies
The Defendants' first three arguments address procedural grounds that limit Plaintiff's potential recovery in this action to nominal damages. First, the Defendants correctly note that Plaintiff may not pursue damages from the Defendants, in their official capacities, under Section 1983. (Doc. 25-2, pp. 11-12). Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) ("neither a State nor its officials acting in their official capacities are 'persons' under § 1983"). Accordingly, to the extent that Plaintiff sought official capacity damages from the Defendants, Plaintiff's excessive force claim should be dismissed.
Second, the Defendants argue that Plaintiff's claim should be dismissed because Plaintiff has failed to demonstrate that he suffered a more than de minimis physical injury. (Doc. 25-2, pp. 8-11). The Prison Litigation Reform Act ("PLRA") provides, in relevant part, that "[n]o Federal civil action may be brought by a prisoner ... for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). The Eleventh Circuit has held, though, that "nothing in § 1997e(e) prevents a prisoner from recovering nominal damages for a constitutional violation without a showing of physical injury." Brooks v. Warden, 800 F.3d 1295, 1307-08 (11th Cir. 2015). Moreover, additional Eleventh Circuit authority instructs District Courts to consider whether a complaint may be liberally construed to request nominal damages before dismissing under 42 U.S.C. § 1997e(e). See Hughes v. Lott, 350 F.3d 1157, 1162-63 (11th Cir. 2003).
Because Plaintiff has failed to allege or demonstrate that he suffered a more than de minimis physical injury during the March 14, 2016 use of force incident, Plaintiff may not recover either compensatory or punitive damages in this action. Brooks, 500 F.3d at 1307. Therefore, the Court need not address the Defendants' third argument—that Plaintiff may not recover punitive damages due to his failure to show "evil motive or intent, or ... reckless or callous indifference to federally protected rights." (Doc. 25-2, p. 19) (quoting Anderson v. Atlanta, 778 F.2d 678, 688 (11th Cir. 1985)). However, because the PLRA does not bar the recovery of nominal damages even in the absence of a physical injury, and because Plaintiff's complaint could and should be liberally construed to seek nominal damages, a dismissal of Plaintiff's claim, in its entirety, is not warranted under 42 U.S.C. § 1997e(e).
B. Qualified Immunity
The Defendants' fourth argument is a claim of qualified immunity, which "protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotations omitted). It is undisputed that the Defendants were acting within the scope of their discretionary authority as correctional officers during the March 14, 2016 force incident. Therefore, Plaintiff bears the burden of showing that qualified immunity is not appropriate. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002).
In assessing whether Plaintiff has met his burden, the Defendants ask the Court to deem their statement of undisputed material facts admitted in accordance with MDGA Local Rule 56. (Doc. 44, pp. 6-7). That Rule provides, in relevant part:
The respondent to a motion for summary judgment shall attach to the response a separate and concise statement of material facts, numbered separately, to which the respondent contends there exists a genuine dispute to be tried. Response shall be made to each of the movant's numbered material facts. All material facts contained in the movant's statement which are not specifically controverted by specific citation to particular parts of materials in the record shall be deemed to have been admitted, unless otherwise inappropriate.
As the Defendants note, this Court advised Plaintiff of the importance of adhering to this Local Rule in a "Notice of Summary Judgment Motion" issued pursuant to Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985). Specifically, that notice stated:
Local Rule 56 requires a motion for summary judgment to be accompanied by a separate document containing a short and concise statement of material facts in numbered paragraphs. Local Rule 56 also requires a party opposing a summary judgment motion to file a separate concise statement of material facts responding to the numbered paragraphs of the moving party's statement. The local rule further requires that the statements of material fact by both parties must include a reference to that part of the record that supports each statement.
If you do not respond to the motion for summary judgment on time with affidavits or documentary evidence contradicting the material facts asserted in the motion for summary judgment, the Court may accept the factual assertions in the motion as true.
Despite this warning, Plaintiff did not file a statement of material facts with the Court as directed and did not otherwise dispute the Defendants' statement of material facts.(Doc. 26)
The Defendants also ask the Court to disregard Plaintiff's affidavit (Doc. 41), as that affidavit was unaccountably filed many months out of time. (Doc. 44, pp. 3-6). Specifically, the Defendants filed their Motion for Summary Judgment on September 22, 2017, and the Court issued its "Notice of Summary Judgment Motion" the same day. (Docs. 25, 26). On October 12, the Court received from Plaintiff a Response indicating that Plaintiff (a) had been transferred from Jackson State Prison to Hancock State Prison, and (b) had not received a copy of the Defendants' Motion for Summary Judgment. (Doc. 30). The Defendants immediately re-served Plaintiff at his new address, see (Doc. 31), but the Court received no responsive filings from Plaintiff until April 2018. Even accounting for the change in address, Plaintiff's Affidavit, received by the Court on April 9, 2018, is nearly five months late.
The Court's Screening Order further advised Plaintiff of his duty to "keep the Clerk of this Court and all opposing attorneys and/or parties advised of [his] current address." (Doc. 12, p. 11).
As the Defendants note, Federal Rule of Civil Procedure 6 allows the Court to overlook the failure to act "because of excusable neglect." Fed. R. Civ. P. 6(b)(1)(B). Factors bearing upon whether untimeliness is "excusable" include: "the danger of prejudice ... , the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith." Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380, 395 (1993). Citing Rule 6, the Eleventh Circuit has held that "[a]bsent an affirmative showing by the non-moving party of excusable neglect ... a court does not abuse its discretion in refusing to accept out-of-time affidavits." Clinkscales v. Chevron U.S.A., Inc., 831 F.2d 1565, 1568 (11th Cir. 1987). In an unpublished decision, the Eleventh Circuit has ruled that an unexplained delay of four days was sufficient to warrant the rejection of a pro se litigant's affidavit. Mosley v. MeriStar Mgmt. Co., LLC, 137 F. App'x 248, 250 (11th Cir. 2005).
Plaintiff's failure to explain his five-month delay in filing his supporting affidavit warrants the rejection of that affidavit under Rule 6's "excusable neglect" standard. Additionally, Plaintiff's failure to respond to the Defendants' statement of material facts warrants the deemed admission of those facts under Local Rule 56. Even so, the Defendants are not entitled to summary judgment by default. Rather, the Court must "review the movant's citations to the record to determine if there is, indeed, no genuine issue of material fact." Reese v. Herbert, 527 F.3d 1253, 1269 (11th Cir. 2008) (internal punctuation omitted). In particular, the Court must assess whether the force employed during the March 14, 2016 incident was objectively reasonable. See generally Kingsley v. Hendrickson, 135 S.Ct. 2466 (2015). Factors for consideration include: "the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting." Id., at 2473.
Based on these factors, the record establishes as a matter of law that the Defendants' use of force during the March 14, 2016 incident was objectively reasonable. Affidavits from Defendants Gore and Lamar establish that Plaintiff was repeatedly instructed to return to his cell, but Plaintiff refused to comply with these instructions. (Doc. 25-4, p. 2; Doc. 25-5, pp. 1-2). Defendant Lamar states: "Plaintiff walked toward me, speaking loudly and gesturing with his hands." (Doc. 25-5, p. 2, ¶ 7). Based on Plaintiff's reaction, Officer Hutcherson intervened by using "soft hands," meaning he "took hold of Plaintiff with his hands, not using any sort of weapon - and took him to D-pod without further incident." (Id., at ¶ 9). The record indicates that neither Defendant Gore nor Defendant Lamar used force against Plaintiff, and both Defendants confirm that Plaintiff was not pepper sprayed during the March 14 incident, or at any time during his incarceration at the Upson County Jail. (Doc. 25-4, p. 2; Doc. 25-5, p. 2). Finally, Plaintiff's contemporaneous medical service requests show complaints relating only to an alleged oral-cavity tumor, see (Doc. 25-3, pp. 28, 36), and to alleged bedbug bites (Doc. 25-3, p. 41). Hence, Plaintiff's medical records show that Plaintiff suffered no significant injury as a result of the March 14, 2016 incident.
Even when viewed in the light most favorable to Plaintiff, these records establish that the force employed during the March 14, 2016 incident amounted to an objectively reasonable response to Plaintiff's potentially hostile resistance to legitimate custodial instructions. The record indicates that only an "Officer Hutcherson" actually used force against Plaintiff. As discussed above, Plaintiff did not name Officer Hutcherson as a Defendant, and Plaintiff unaccountably failed to reference Officer Hutcherson's involvement until nearly two years after the commencement of this action. See (Doc. 41). The record further indicates that two of the named Defendants, Defendant Holley and Defendant Napier, were entirely uninvolved in the March 14, 2016 incident. See (Doc. 25-7, p. 2, ¶ 5) (Aff. of Gregory Napier) ("I was not working on March 14, 2016").
As for Defendants Gore and Lamar, the record establishes that these Defendants were present during the March 14, 2016 encounter. However, these Defendants did not unconstitutionally fail to intervene because "[b]y nature, a claim for failure to intervene must include an underlying act of excessive force." Andrade v. Miami Dade Cnty., 2010 WL 4069128 at *7 (S.D. Fla. Sept. 30, 2010). Because the record shows that the force employed during the March 14, 2016 incident was reasonable, and therefore not excessive, Defendants Gore and Lamar, like Defendants Holley and Napier, are entitled to qualified immunity.
CONCLUSION
Because the record establishes as a matter of law that the force employed during the March 14, 2016 incident was objectively reasonable, the Defendants are entitled to qualified immunity. Accordingly, it is RECOMMENDED that the Defendants' Motion for Summary Judgment be GRANTED. 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 of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are further 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 RECOMMENDED, this 30th day of July, 2018.
s/ Charles H. Weigle
Charles H. Weigle
United States Magistrate Judge