Opinion
Civil Action No. 98-00781-BH-L
January 8, 2001
REPORT AND RECOMMENDATION
Plaintiff, an Alabama prison inmate proceeding pro se and in forma pauperis, filed a complaint under 42 U.S.C. § 1983 alleging deliberate indifference to the plaintiffs safety by Sheriff Jack Tillman and other employees of the Sheriffs department. Plaintiff seeks $500,000.00 in damages and "disciplinary action". (Doc. 1.) Plaintiffs action was referred to the undersigned on January 5, 2000, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4) and is now before the Court on defendants' motion for summary judgment (Docs. 15, 25, and 29).
The Court converted defendant's special report and two supplemental special reports (Docs. 15, 25, and 29) into a motion for summary judgment. Plaintiff was given notice that the motion for summary judgment would be taken under submission, was advised of the pertinent summary judgment law and of the consequences of a summary judgment motion, and was provided an opportunity to respond to the summary judgment motion. In response, plaintiff filed two affidavits regarding his medical treatment at the Mobile County Metro Jail (Docs. 27 and 30), several "affidavits" disputing the factual and legal conclusions in the special report (Doc. 33, 36, 38, 42, 47), and a "memorandum" opposing summary judgment (Doc. 59). Also received were two affidavits from other inmates (Docs. 44 and 45). Upon consideration of all matters presented, the undersigned recommends that defendants' motion for summary judgment be granted.
I. PLAINTIFF'S COMPLAINT
The plaintiff has filed a complaint alleging that Corrections Officers Beverly Green and Zena Washam were deliberately indifferent to his safety while he was incarcerated at the Mobile Metro Jail. The Plaintiff further contends summarily that Sheriff Jack Tillman, Warden Rick Gaston, Lt. E.L. Mitchell, Sgt. William Talbott, and Sgt. Gary Tillman are "liable" for the actions of Green and Washam. (Doc. 1.) Plaintiffs complaint alleges in its entirety the following:
On or about 5-26-98 Wedge E (602) [Corrections Officer Beverly] Green told inmates in the Mobile County Jail. To beat [me] cause I am a (snitch) for Warden Rick Gatson. As a result later that same day I was attack beaten by my cellmate for that reason. His name is Lesstesso Carter B/M.
On or about 5-26-98 wedge E (602) Mobile County Jail. At 9:00 in the morning I told [Corrections Officer Zena] Washington 3 times that my life was in danger do to the fact. [Corrections Officer] Green told inmates in E Wedge (602) that I am a snitch for Warden Rick Gatson would you call Lt. Mitchell or Sgt. Talbott. So I can be moved "I fear for my life". [Corrections Officer] Washam had knowledge prior to me being attack beaten that my life was in danger on 5-26-98 and fail to protect me. As a result I was attacked and beaten by my cellmate Lesstesso Carter B/M. I suffered Physical body harm from being attacked beaten by Lesstesso Carter B/M. I hold [Corrections Officer] Green, [Corrections Officer] Washam liable for me Carlos G. Law being beaten by Lesstesso Carter. And [Corrections Officer] Green, [Corrections Officer] Washam acted "deliberate indifference". Cause they both fail to protect me. [sic]
Plaintiffs complaint was signed under penalty of perjury and therefore is being treated by this Court as an affidavit. Dickinson v. Wainwright, 626 F.2d 1184, 1186 (5th Cir. 1980); Murrell v. Bennett, 615 F.2d 306, 310 n. 5 (5th Cir. 1980); Vinson v. Fulton County Sheriff's Dept., 678 F. Supp. 275, 278-79 (N.D. Ga. 1988). However, a verified complaint's allegations are subject to the scrutiny that an affidavit receives from a court when a court is considering a summary judgment motion, i.e., conclusory statements of ultimate facts, conclusions of law, and statements unsupported by personal knowledge are not considered competent evidence to defeat summary judgment. See Murrell, 615 F.2d at 310.
On March 4, 1999, plaintiff filed an affidavit in support of his complaint. (Doc. 17) In the affidavit, plaintiff stated,
On 5-26-98 during breakfast at 6:00 a.m. all the inmates were at the table eating breakfast. Including myself in (e) Pod (602) while wedge workers were bringing out trays. I filled my cup with juice C/O Green got `very angery' cause I did without her permission that's when C/O Green started telling (Rickey Hall) (Terry McCall) (Lesstesso Carter) and wedge workers. And the rest of the inmates that I am (snitch) for the warden Rick Gatson. On the loud intercom so everyone could hear C/O Green called me a snitch. [ Sic.]
(Doc. 17.)
Also in response to the motion for summary judgment, the plaintiff filed affidavits from two inmates at the Easterling Correctional Facility, Robert J. Smith and Franklin D. Acoff. Both affiants state that inmates at Easterling Correctional Facility have threatened to kill the plaintiff because he has been labeled a snitch. (Docs. 44 and 45.)
II. DEFENDANT'S RESPONSE
The defendants Sheriff Tillman, Sgt Tillman, Sgt. Talbott, Lt. Mitchell and Warden Gaston argue that the plaintiff has failed to state a claim upon which relief can be granted against them. Specifically, the defendants argue that plaintiffs claim, that these defendants are liable because they were the superiors of Green and Washam, is barred because there is no respondeat superior liability under 42 U.S.C. § 1983.
The defendants Green and Washam argue that they are entitled to qualified immunity because they were acting within the scope of their official duties and that neither of their actions violated any clearly established law. (Doc. 15). In an amendment to the special report the defendants further contend that the plaintiff has failed to show that he suffered any physical injury as a result to the fight which the plaintiff contends was the result of the correctional officer's deliberate indifference. (Doc. 25, 29).
All named defendants have submitted affidavits in support of the motion for summary judgment. (Doc. 16, Exhibits, A, C-I.) In summary, the affidavits state that at no time before the fight with his cellmate did plaintiff report to any of the defendants his concern for his safety as a result of allegedly being called a snitch by Officer Green. Furthermore, the affidavit of Green explains her version of what happened the morning of May 26, 1998 as follows
At some time after the 2 p.m. altercation, plaintiff told Corrections Officer Roderick L. Gordon that Officer Green had called him a snitch. Officer Gordon reported, "Carlos Law stated that Corrections Officer Green told the other inmate that he was a snitch and was sending kite to the Warden." (Doc. 16, Exhibit B.)
On or about May 26, 1998, I was working the 11:00 p.m. to 7:00 a.m shift at the mobile Metro County Jail. I was stationed at the Pod 602 when at approximately 6:00 a.m. on the 26th I saw Carlos Gilbert Law outside his cell during lockup. I then ordered [plaintiff] to return to his cell and [plaintiff] refused. [Plaintiff] then proceeded into the vestibule area near my station and filled a container with juice. I informed inmate Carlos Law that by taking the juice, he was stealing. [Plaintiff] replied that there was nothing I could do for him because he did not have `store' or visitation privileges and the television was broken. I then responded that Law could be moved to "1002". Law then said that if I took such action, he would inform on me to the Warden. I again ordered the plaintiff to return to his cell by telling the plaintiff to get back inside and that I didn't care what he wrote to the Warden with his "snitchin' self" and left the vestibule area through the glass door.
Sgt. Tillman then placed him in his cell. (Doc. 16, Exhibit C).
Affidavits were also submitted by the defendants regarding what occurred during the fight between the plaintiff and inmate Carter. Specifically, Lt. Mitchell stated that when he got to the area where the plaintiff and Carter were fighting he observed plaintiff trying to stab inmate Carter in the eye with an ink pen at which point the inmates were separated. (Doc. 16, Exhibits F). Plaintiff was subsequently disciplined for fighting, with loss of commissary and visitation privileges. Inmate Carter did not comment on the fight with plaintiff or what caused it. (Doc. 16, Exhibit B, E.)
On May 27, 1998, plaintiff signed up for "sick call," complaining that he was "attacked in a fight yesterday." (Doc 28). According to the affidavit of Kim Zirlott, R.N., plaintiff was treated at the Metro Jail medical clinic on May 27, 1998 for "complaints of a back and hip injury as a result of an altercation with another inmate. Ms. Zirlott stated that "Mr. Law had no real injuries as a result of the altercation from the previous day". (Doc. 28).
The record also contains plaintiffs prison disciplinary record (Doc. 16, Exhibit B) and medical records from the Mobile Metro Jail (Doc. 29)
Defendants attempted to depose plaintiff on February 8, 1999, but plaintiff refused to speak "without an attorney being present to defend me." (Doc. 16, Exhibit I.)
III. CONCLUSIONS OF LAW
A. SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted:
if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). A factual dispute is "`genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing [substantive] law."Id; accord, Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992), cert. denied, 507 U.S. 911, 113 S.Ct. 1259, 122 L.Ed.2d 657 (1993).
The basic issue before the Court on a motion for summary judgment is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 251-252. The moving party has the burden of showing the absence of a genuine issue as to any material fact, and in deciding whether the movant has met this burden, the Court must view the movant's evidence and all factual inferences arising from it in the light most favorable to the nonmoving party. Adickes v. S.H Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Fitzpatrick v. City of Atlanta, 2F.3d 1112, 1115 (11th Cir. 1993); Tipton, 965 F.2d at 989-999. "If reasonable minds could differ on the inferences arising from undisputed facts, then a court must deny summary judgment." Miranda v. B B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank Trust Co. v. Fidelity Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). In addition to demonstrating that there is no genuine issue of material fact, the movant must also satisfy the ultimate burden of persuasion on the claim by showing that it would be entitled to a directed verdict at trial. Fitzpatrick, 2 F.3d at 1116.
Once the movant satisfies its initial burden under Rule 56(c) of demonstrating the absence of a genuine issue of material fact, the burden shifts to the nonmovant to "come forward with specific facts showing that here is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis omitted). Otherwise stated, in order to preclude summary judgment, the nonmovant must "show the existence of a genuine issue as to a material fact." Fitzpatrick, 2 F.3d at 1116. "A mere `scintilla' of evidence supporting the [nonmoving] party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted). "[T]he nonmoving party may avail itself of all facts and justifiable inferences in the record taken as a whole." Tipton, 965 F.2d at 998 (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)). "[T]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Tipton, 965 F.2d at 999 (quoting Anderson, 477 U.S. at 255 (citing Adickes, 398 U.S. at 158-159)). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita, 475 U.S. at 587 (quotation marks and citation omitted).
The purpose of summary judgment "is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 592 (11th Cir. 1995), cert. denied, Jones v. Resolution Trust Corp., 516 U.S. 817, 116 S.Ct. 74, 133 L.Ed.2d 33 (1995).
In opposing a motion for summary judgment, "a party may not rely on his pleadings to avoid judgment against him." Ryan v. Int'l Union of Operating Eng'rs, Local 675, 794 F.2d 641, 643 (11th Cir. 1986). There is no burden upon the district court to distill every potential argument that could be made upon the materials before it on summary judgment. Blue Cross Blue Shield v. Weitz, 913 F.2d 1544, 1550 (11th Cir. 1990). Rather, the onus is upon the parties to formulate arguments; grounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned. Road Sprinkler Fitters Local Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994) (citing Lazzara v. Howard A. Esser, Inc., 802 F.2d 260, 269 (7th Cir. 1986)), cert. denied, 513 U.S. 868, 115 S.Ct. 189, 130 L.Ed.2d 122 (1994).Id. at 599. The "complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The failure by the nonmoving party to make a sufficient showing on an essential element of its action entitles the moving party to judgment as a matter of law. Id. at 323, 106 S.Ct. at 2552.
B. EIGHTH AMENDMENT
The Eighth Amendment requires that prison officials "`take reasonable measures to guarantee the safety of the inmates[.]'" Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194 3200 82 L.Ed.2d 393 (1984); citations omitted). Prison officials have a duty to protect an inmate from an attack from another inmate. Farmer, 114 S.Ct. At 1976. However, not every injury suffered by an inmate at the hands of another inmate is a result of a violation of the Constitution. Id at 1977. See Gullatte v. Potts, 654 F.2d 1007, 1012 (5th Cir. 1981)("[The Eighth Amendment protection against threat of violence and physical assault by other inmates] does not mean that the constitutional rights of inmates are violated every time a prisoner is injured. It would not be reasonable to impose such an absolute and clearly unworkable responsibility on prison officials.")
The Eighth Amendment is violated by "[a] prison official's "deliberate indifference' to a substantial risk of serious harm to an inmate [.]" Farmer, at 1974. This standard requires first that an alleged deprivation be, objectively, "sufficiently serious." Id. at 1977 (quoting Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324, 115 L.Ed.2d 271 (1991); citations omitted. The deprivation must be "the denial of `the minimal civilized measure of life's necessities.'" Farmer, 114 S.Ct. At 1977 (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981)). In the situation where an inmate complains about being attacked by another inmate, the inmate must establish that the conditions under which he was incarcerated presented "a substantial risk of serious harm." Farmer, 114 S.Ct. At 1977 (citation omitted).
This standard also requires that the prison official be deliberately indifferent to the substantial risk of serious harm to the inmate. Id Specifically, deliberate indifference requires
that a prison official cannot be found liable under the Eighth Amendment for denying an innate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.Id. at 1979. This element of an Eighth Amendment violation is subjective. Id at 1979-80. It is not required that a prison official know "`precisely who will attack whom,' id., but only that the prison official had subjective knowledge of a generalized, substantial risk of serious harm from inmate violence. See Id." Hale v. Tallapoosa County, 50 F.3d 1579, 1583 (11th Cir. 1995) (quoting Farmer, 114 S.Ct. at 1982). The failure to provide advance notice of an attack is relevant, but not dispositive. Id (citing Farmer, 114 S.Ct. At 1984).
Thus, when an inmate is confronted with a defendant's properly supported summary judgment motion, the inmate, in order "to survive summary judgment on his section 1983, Eighth Amendment claim, [is] required to produce sufficient evidence of (1) a substantial risk of serious harm; (2) the defendants' deliberate indifference to that risk; and (3) causation." Hale, 50 F.3d at 1582 (quoting Farmer, 114 S.Ct. at 1974, and LaMarca v. Turner, 995 F.2d 1526, 1535 (11th Cir. 1993). cert. denied, 510 U.S. 1164, 114 S.Ct. 1189, 127 L.Ed.2d 539 (1994)).
IV. ANALYSIS
A. Defendants Green and Washam
Viewing the facts, as this Court is required for purposes of summary judgment, in the light most favorable to the plaintiff, the plaintiffs affidavit, which alleges that he heard Officer Green use the intercom to call him a snitch and to tell "other inmates in the Mobile County Jail to beat [plaintiff because he was] a snitch for Warden Rick Gaston" may support a sufficient disagreement to require submission to a jury as to whether Officer Green acted with deliberate indifference which created a substantial risk of serious harm to the plaintiff. Furthermore, the Court assumes as the plaintiff has averred in his affidavit that Officer Washam was told three times about the incident and failed to act upon the information. Again, the plaintiffs affidavit may be sufficient to create a jury issue as to the element of whether Washam was deliberately indifferent to a substantial risk of serious harm. However, the plaintiff has completely failed in his proof that this alleged deliberate indifference caused the altercation that occurred or that he suffered any injury as a result.
The plaintiff must establish causation for a deliberate indifference claim under the Eighth Amendment. Hale, supra, 50 F.3d. at 1582 (11th Cir. 1993). That is, plaintiff must establish that Corrections Officer Green's statement that plaintiff was a snitch caused plaintiffs constitutional injury. Drawing all justifiable inferences in favor of the non-moving party, the undersigned finds that the plaintiff has failed to establish the necessary element of causation. The plaintiff "s only attempt to establish causation is his conclusory statement in the complaint and his affidavits that Officer Green's statement did in fact cause plaintiffs cellmate to attack him. (See Docs. 1, 17). This is not a sufficient showing on the essential element of causation.
Plaintiff states in one of his "affidavits in opposition to summary judgment" that "[i]nmate Terry McCall testified at inmate Law disciplinary hearing on or about 5-28-98 that he seen Lesstesso Carter sharpening a (knife) on 5-26-98 making threats to kill inmate Law due to the fact C/O Green identified inmate Law as a snitch on 5-26-98". (Doc. 59). However, the plaintiff has not submitted any evidence of this assertion. The disciplinary file shows on the document entitled "Witness Notification" that Terry McCall did agree to testify at plaintiffs disciplinary hearing. The reverse side of this document appears to indicate that inmate McCall testified that the "slim dude was sharpening a shank and saying he was going to fuck the short dude up". (Doc. 16, Exhibit B). There is no indication when this alleged statement was made by inmate Carter or whether it was in any way connected to the alleged incident forming the basis of this complaint. Moreover, the document is not competent evidence for purposes of rebutting a motion for summary judgment.
Moreover, it is not a reasonable inference from the record that the statements allegedly made by Officer Green resulted in the plaintiff being attacked by his cellmate. In fact, other than the plaintiffs conclusory statement, the record supports the inference that the plaintiff was the aggressor against Carter. Moreover, the plaintiff has failed to refute defendants evidence that he did not receive any injuries as a result of the fight. This further erodes plaintiffs naked assertion that he was the victim of the attack, much less that the attacker was motivated by the statements allegedly made by Officer Green.
See Lt. E.L. Mitchell affidavit ("I observed inmate Carlos Law attempting to stab Inmate Carter in the eye with an ink pen.") (Doc. 16, Exhibit F) and May 26, 1998, incident report filed by Lt. Mitchell. (Doc. 16, Exhibit C). See also affidavit of Sergeant William Talbott (Doc. 16, Exhibit H) and affidavit of Kim Zirlott, R.N. ("Mr. Law had no real injuries as a result of the altercation from the previous day") (Doc. 28).
The plaintiff avers that he need not show an injury to seek relief and as support cites Farmer v. Brennan, 511 U.S. 825 (1994). However, Farmer did not abolish the requirement that in order to establish a constitutional violation in which compensatory relief is available an injury must be shown. Rather the Court in Farmer held that the plaintiff need not show an injury in a deliberate indifference claim in order to seek injunctive relief Id. at 845. Plaintiff did not seek injunctive relief in his complaint.
The record also shows that plaintiff had been in another altercation eleven days prior to any alleged statement that he was a snitch. (Doc. 28).
In summary, the record contains only plaintiffs conclusory statement that Officer Green's calling plaintiff a snitch caused inmate Carter to attack him. However, conclusory statements of ultimate facts, i.e. causation, are not considered competent evidence to defeat summary judgment. Murrell v. Bennett, 615 F.2d 306, 310 (5th Cir. 1980); see e.g., Brown v. Smith, 813 F.2d 1187 (11th Cir. 1987) (grant of summary judgment affirmed where plaintiff failed to establish injury); Bennett v. Parker, 898 F.2d 1530, 1534 (11th Cir. 1990), cert. denied, 498 U.S. 1103, 111 S.Ct. 1003, 112 L.E.2d 1085 (1991) (district court denial of summary judgment reversed where record contained only plaintiffs conclusory statements of physical injury). Moreover, "[t]he complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 2252, 91 L.Ed.2d 265 (1986).
With no other evidence in the record, plaintiffs mere allegation of causation fails to show that defendant Green's alleged actions resulted in the attack. "In reviewing the sufficiency of the evidence to show causation . . . `more is required than [a] naked assertion that the assault would not have occurred but for the offensive conditions. To hold otherwise would effectively transform the causality requirement from a substantive element of proof into one of pleading.'" LaMarca v. Turner, 995 F.2d 1526, 1539 (11th Cir. 1993), cert. denied, 510 U.S. 1164, 114 S.Ct. 1189, 127 L.Ed.2d 539 (1994); quoting Doe v. Sullivan County, 956 F.2d 545, 550 (6th Cir.), cert. denied 506 U.S. 864, 113 S.Ct. 187, 121 L.Ed.2d 131 (1992). Because the plaintiff has failed to provide sufficient evidence as to causation, the defendants Green and Washam are entitled to summary judgment as a matter of law. Accordingly, the Court need not address whether defendants Green and Washam are entitled to qualified immunity.
B. Defendants Sheriff Tillman, Warden Gaston, Lt. Mitchell, Sgt. Tillman and Sgt. Talbott
The plaintiffs only claim against these defendants is that they should be held liable for the actions of Officers Washam and Green, presumably because they are their superiors or supervisors. In a § 1983 action, a supervisory official may not be held liable solely on the basis of his or her employee's acts. e Fundiller v. City of Cooper City, 777 F.2d 1436, 1443 (11th Cir. 1985). Plaintiff must show that the supervisory defendants either personally participated in the acts comprising the alleged constitutional violation or instigated or adopted a policy that violated his constitutional rights. Adams v. Pogue, 61 F.3d 1537, 1544 (11th Cir. 1995). Plaintiff has failed to even allege any facts which would state a cognizable claim against Sheriff Tillman, Warden Gaston, Sgt. Tillman, Sgt. Talbott or Lt. Mitchell. Therefore, the defendants are entitled to summary judgment as a matter of law.
V. CONCLUSION
Upon consideration of all matters presented, the undersigned recommends that defendants' motion for summary judgment (Docs. 15, 25, and 29) be GRANTED, and that this action be DISMISSED WITH PREJUDICE.