Opinion
7:20-CV-79 (WLS)
08-24-2022
EUGENE KYEVONNIE LESLIE, Plaintiff, v. Sergeant SHARPE, Defendant.
RECOMMENDATION
THOMAS Q. LANGSTAFF UNITED STATES MAGISTRATE JUDGE.
Plaintiff, proceeding pro se, brought the above-styled action pursuant to 42 U.S.C. § 1983 on April 30, 2020. (Doc. 1). In the Court's initial review of the Complaint, the Court permitted, among others, Plaintiff's Eighth Amendment excessive force claim and Plaintiff's Eighth Amendment deliberate indifference to a serious medical need claim against Defendant Sharpe to proceed. (Doc. 5). After the District Judge extended the deadline for dispositive motions (Doc. 30), Defendant Sharpe filed a Motion for Summary Judgment (Doc. 31). Despite being notified (Doc. 32) by the Clerk of Court of his rights and obligations in responding to Defendant's Motion, Plaintiff did not file a Response.
Plaintiff's Allegations
Plaintiff sets forth the following allegations in his Complaint concerning his incarceration at Valdosta State Prison (“VSP”). (Doc. 1). While in his cell on or about February 1, 2019, Plaintiff was sprayed by Defendant Sharpe in his face with O.C. spray. Id. at 11. Medical was not notified and Plaintiff was left in his cell with the windows shut until the morning of February 1, 2019.
As a result of these alleged violations, Plaintiff is seeking compensatory and punitive damages. Id. at 13.
Standard of Review
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.FED. R. CIV. P. 56(c)(1). All facts and reasonable inferences drawn therefrom must be viewed in the light most favorable to the nonmoving party. Cruz v. Publix Super Markets, Inc., 428 F.3d 1379, 1382 (11th Cir. 2005).
As the party moving for summary judgment, Defendant Sharpe has the initial burden to demonstrate that no genuine issues of material fact remain in the case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir. 1991). The movant “always bears the initial responsibility of informing the district court of the basis for its motion,” and identifying those portions of the record, including pleadings, discovery materials, and affidavits, “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323.
“If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it.” FED R. CIV. P. 56(e)(3). Rule 56 of the Federal Rules of Civil Procedure allows the Court to consider the entire record when ruling on a motion for summary judgment. “The court need consider only the cited materials, but it may consider other materials in the record.” FED. R. CIV. P. 56(c)(3).
Defendant Sharpe supports his Motion for Summary Judgment by submitting the Declaration of non-party Elizabeth Fields, as well as his own Declaration and that of Hayward Crumby. (Docs. 31-4, 31-3, 31-5, respectively).
Hayward Crumby was previously a co-Defendant in this matter, but the Court granted summary judgment to him before Defendant Sharpe filed the instant Motion for Summary Judgment. (Doc. 29).
Evidence
According to Plaintiff's unsworn Complaint, prior to the incident that occurred on or about February 1, 2019, Plaintiff was housed in lockdown in dormitory E-1 at VSP. (Doc. 1, p. 8). Plaintiff states that Defendant Sharpe approached Plaintiff's cell while Plaintiff sat in the flap, and as Plaintiff was explaining that he was trying to clean “infested water” out of his cell, Defendant Sharpe discharged O.C. spray directly in Plaintiff's face, eyes, and mouth. Id. at 11. Plaintiff says that Defendant Sharpe left him in his cell without notifying medical and without “fresh oxygen to breathe with windows sealed shut at 0635 hours.” Id. Plaintiff says that medical was never called and that he was “left to suffer the morning of February 1st, 2019.” Id. A grievance attached to Plaintiff's Complaint contains substantially similar allegations. (Doc. 1-1, p. 10).
The Court notes that Plaintiff's signature on his Complaint has been notarized. (Doc. 1, p. 13). However, a notarized signature, without more, does not verify a complaint. Plaintiff did not include a statement that he swore that the foregoing was true and accurate, nor did he make any attempt to comply with 28 U.S.C. § 1746. See Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1305-07 (5th Cir. 1988) (declining to consider on summary judgment an “affidavit” that was only notarized and was “neither sworn nor its contents stated to be true and correct nor stated under penalty of perjury) (cited by United States v. Four Parcels of Real Property in Greene and Tuscaloosa Counties in the State of Ala., 941 F.2d 1428, 1444 n.36 (11th Cir. 1991) (noting that a declaration executed in accordance with 28 U.S.C. § 1746 may be considered at summary judgment)); Galvan v. Del Taco, 2015 WL 1038090 at *3 (D. Nev. 2015) (declining to consider notarized statements at summary judgment because they were not sworn under penalty of perjury and citing Flowers v. Abex Corp., 580 F.Supp. 1230, 1233 n.2 (N.D. Ill. 1984), for the proposition that “merely notarizing the signature does not transform a document into [an] affidavit that may be used for summary judgment purposes.”).
Defendant Sharpe is a Sergeant at VSP. (Doc. 31-3, p. 2). In February of 2019, Defendant Sharpe saw that Plaintiff had opened the flap of his food service window, which is against prison regulations. Id. Defendant Sharpe ordered Plaintiff to back away from the flap but Plaintiff refused, at which point Defendant Sharpe administered one short burst of pepper spray to get Plaintiff to comply with his order. Id. After being sprayed, Plaintiff complied with Defendant Sharpe's order and backed away from the flap. Id. at 3. After Plaintiff complied with his order, Defendant Sharpe stopped all force. Id. Defendant Sharpe said that he did not administer the pepper spray for a malicious or sadistic purpose, only to gain Plaintiff's compliance with his order. Id. After he was pepper sprayed, a nurse examined Plaintiff and he was immediately removed from his cell. Id. Other than having red eyes, Plaintiff had no other injuries from the pepper spray and was taken to the showers to remove the pepper spray. Id. Plaintiff's cell was equipped with a sink with running water, and he was instructed to wash his face and eyes. Id. Because Plaintiff had received immediate medical treatment, had access to a sink with running water, and was taken to shower, Defendant Sharpe did not believe Plaintiff was experiencing a serious medical need. Id. at 4.
Non-party Elizabeth Fields, a contract employee for the Georgia Department of Corrections, is the Director of Nurses at VSP. (Doc. 31-4, p. 2). Based on her review of Plaintiff's medical records, she states that medical was immediately notified that Plaintiff was pepper sprayed, that Plaintiff was allowed to leave his cell, and was immediately examined by a nurse. Id. at 3. Other than having red eyes, Plaintiff had no injuries, and his cell was equipped with a sink and running water, which Plaintiff was instructed to use to wash his face and eyes. Id. Plaintiff was taken to shower to more thoroughly wash his face and eyes. Id. Plaintiff was examined on February 6, 2019 by a nurse practitioner, who did not find any eye injuries. Id. Ms. Fields has never experienced pepper spray causing a permanent injury to an inmate's eyes. Id. at 4.
Hayward Crumby is a correctional officer at VSP. (Doc. 31-5, p. 2). He was a by-stander who was present when Plaintiff was pepper sprayed. Id. After Plaintiff was sprayed, Officer Crumby observed Plaintiff being immediately removed from his cell, taken to a shower to remove the pepper spray, and being examined by a nurse, who found no injuries other than red eyes. Id. at 3. Plaintiff's cell was equipped with running water, and he was instructed to use cool water to wash his face and eyes. Id.
Discussion
Defendant Sharpe argues that he is entitled to summary judgment because: (1) he did not violate Plaintiff's Eighth Amendment rights by using excessive force or by being deliberately indifferent to Plaintiff's medical needs; (2) he is entitled to qualified immunity; and (3) Plaintiff is barred from seeking compensatory and punitive damages by the Prison Litigation Reform Act (PLRA) because his injuries were de minimis. (Doc. 31-1).
Defendant Sharpe incorporates then-Defendant Crumby's Motion for Summary Judgment as to the deliberate indifference to medical needs claim. (Doc. 31-1, p. 14 n.1) (incorporating Doc. 24).
Excessive Force
The Eighth Amendment prohibits cruel and unusual punishment and governs “the treatment a prisoner receives in prison and the conditions under which he is confined.” Farrow v. West, 320 F.3d 1235, 1242 (11th Cir. 2003) (citation omitted). “However, [n]ot every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny. After incarceration, only the ‘unnecessary and wanton infliction of pain' . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Id. at 124243 (alterations in original) (first quoting Whitley v. Albers, 475 U.S. 312, 319 (1986); and then quoting Ingraham v. Wright, 430 U.S. 651, 670 (1977)). Thus, not “every malevolent touch by a prison guard gives rise to a federal cause of action.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)).
As a result, the ultimate question in determining whether a prison official used excessive force is “whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Hudson, 503 U.S. at 6 (citation omitted). However, this analysis is “contextual” and involves the consideration of “many” factors. Harris v. Chapman, 97 F.3d 499, 505 (11th Cir. 1996).
Although the extent of the injury to the plaintiff may be considered, it is not the central inquiry. Wilkins, 559 U.S. at 37. The Supreme Court has rejected the notion that “significant injury” is required to maintain a valid excessive force claim. Id. The Court recognized that “[a]n inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury.” Id. at 38. However, de minimis injury is also not actionable “provided that the use of force is not of a sort repugnant to the conscience of mankind.” Id. at 37-38.
In the Eleventh Circuit, the inquiry into whether an individual applied excessive force requires the consideration of five factors: (1) the need for force, (2) the relationship between the need and the force applied, (3) the injury, (4) “the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible official on the basis of the facts known to them,” and (5) “any efforts made to temper the severity of a forceful response.” Danley v. Allen, 540 F.3d 1298, 1307 (11th Cir. 2008), overruled on other grounds as recognized by Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010). In considering these factors, the Court is mindful that, if “the facts taken in the light most favorable to the plaintiff do not establish a constitutional violation,” then Defendant Sharpe “should be granted summary judgment as a matter of law.” Bennett v. Parker, 898 F.2d 1530, 1532 (11th Cir. 1990) (citing Brown v. Smith, 813 F.2d 1187, 1188 (11th Cir. 1987)).
Factor 1: Need for force
The Eleventh Circuit has held that “[p]rison guards may use force when necessary to restore order and need not wait until disturbances reach dangerous proportions before responding.” Id. at 1533. In his unsworn Complaint, Plaintiff makes the bare allegation with no evidentiary support that, as he was sitting in the flap and was explaining to Defendant Sharpe that he was trying to clean infested water out of his cell, Defendant Sharpe sprayed pepper spray directly into his face, eyes, and mouth. Defendant Sharpe, however, submits an Affidavit stating that Plaintiff refused to close the flap of the food service window after being ordered to do so. (Doc. 1, p. 11). As such, the use of force was necessary because Plaintiff failed to comply with Defendant Sharpe's order. Pearson v. Taylor, 665 Fed.Appx. 858, 864 (11th Cir. 2016) (citing Danley, 540 F.3d at 1307) (“In general, prison officers are authorized to use force when a prisoner repeatedly fails to obey an order.”). Therefore, the Court finds that the first factor weighs in favor of Defendant Sharpe.
Factor 2: Relationship between the need for force and the force applied
Plaintiff admits that he was sitting in the flap. Defendant Sharpe submits evidence that he ordered Plaintiff to back away from the flap, but that Plaintiff did not do so. Plaintiff does not allege that Defendant Sharpe used an excessive amount of pepper spray, nor does he allege any particular injury other than making the bare allegation with no evidentiary support that he was left to suffer without ventilation. Defendant Sharpe, however, submits Affidavits stating that Plaintiff was immediately removed from his cell, examined by a nurse, taken to the showers, and instructed to use the running water in his cell sink to further remove the pepper spray, as well as medical documentation which supports those statements. (Doc. 31-4, pp. 5-7).
The Eleventh Circuit has held that pepper spray is an accepted non-lethal means of controlling inmates, and that a “short burst of pepper spray is not disproportionate to the need to control an inmate who has failed to obey a jailer's orders.” Pearson, 665 Fed.Appx. at 864 (quoting Danley, 540 F.3d at 1307-08). As such, the Court finds that the second factor weighs in favor of Defendant Sharpe.
Factor 3: Injury
Plaintiff does not assert any injury beyond allegedly being left in his cell after being pepper sprayed. The documentation submitted by Defendant Sharpe shows that, apart from red eyes, Plaintiff had no apparent injuries on examination following the pepper spraying. (Doc. 31-4, pp. 5-7). To the extent that Plaintiff alleges that was left to suffer without being taken to medical, Plaintiff has submitted no evidence to rebut Defendant Sharpe's evidence showing that he was immediately removed from his cell, examined by a nurse, taken to the showers, and instructed to use the running water in his cell sink to further remove the pepper spray.
The Eleventh Circuit has held that, when considering the third factor in an excessive force claim, an “initial use of pepper spray is not necessarily a constitutional violation” because it may be “a very reasonable alternative to escalating” a conflict. Nasseri v. City of Athens, 373 Fed.Appx. 15, 17 (11th Cir. 2010) (quoting Danley, 540 F.3d at 1308). A short burst of pepper spray is “designed to disable . . . without causing permanent physical injury.” Danley, 540 F.3d at 1308. As such, the Court finds that the third factor weighs in favor of Defendant Sharpe.
Factor 4: Extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible official based on the facts known to them
Plaintiff admits that he sat in the flap. Defendant Sharpe states in his Affidavit that he gave Plaintiff an order to back away from the flap and Plaintiff refused, at which point Defendant Sharpe sprayed him with pepper spray.
“Prison guards may use force when necessary to restore order and need not wait until disturbances reach dangerous proportions before responding.” Danley, 540 F.3d at 1307 (quoting Bennett, 898 F.2d at 1533). Here, Plaintiff says that he was sitting in the flap and he does not contradict Defendant Sharpe's sworn statement that he failed to obey Defendant Sharpe's order to back away from the flap. Accordingly, Defendant Sharpe could reasonably perceive that Plaintiff created a threat to the safety of staff and inmates. Id. at 1308. As such, the Court finds that the fourth factor weighs in favor of Defendant Sharpe.
Factor 5: Efforts made to temper the severity of a forceful response
In determining the efforts of a defendant in tempering the severity of a forceful response, the Court looks at whether the defendant: ceased the use of force once the plaintiff was subdued, made efforts to check on the plaintiff's wellbeing throughout the use of force, and made post injury efforts to ameliorate the effects of force used, such as immediately summoning medical assistance. Brockington v. Stanco, 2016 WL 4443204 at *6 (M.D. Ga. 2016) (citations omitted).
Plaintiff was only sprayed by Defendant Sharpe with one burst of pepper spray. “Given that Plaintiff's resulting injury was minimal . . . little effort was needed to mitigate the effects of the force that was applied.” Id. at *7. Because Plaintiff only offers a bare allegation without evidentiary support that he did not receive medical treatment, the only evidence before the Court at this time shows that Plaintiff was immediately removed from his cell, examined by a nurse, taken to the showers, and instructed to use the running water in his cell sink to further remove the pepper spray. As such, the Court finds that the fifth factor weighs in favor of Defendant Sharpe.
Federal Rule of Civil Procedure 56(e) “requires the nonmoving party to go beyond the pleading and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,' designate ‘specific facts showing that there is a genuine issue for trial.'” Celotex, 477 U.S. at 324. At this time, all that is before the Court are Plaintiff's unsupported, unsworn allegations and the evidence presented by Defendant Sharpe showing that Defendant Sharpe did not use excessive force against Plaintiff. As a result, Plaintiff has not shown a genuine issue of material fact. Accordingly, the Court finds that Plaintiff has not shown that Defendant Sharpe used excessive force against him.
Qualified Immunity
Defendant Sharpe also raises the defense of qualified immunity, apparently only as to Plaintiff's claim for excessive force. (Doc. 31-1, p. 12) (referencing the excessive force analysis). “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).
As the Court finds no constitutional violation, Defendant Sharpe is also entitled to qualified immunity as to the excessive force claim. Jacoby v. Baldwin Cnty., 835 F.3d 1338, 1344 (11th Cir. 2016) (citation omitted) (“a public official is entitled to qualified immunity if the plaintiff fails to establish” either prong of the qualified immunity analysis).
Deliberate Indifference to a Serious Medical Need
To state a claim for deliberate indifference to a serious medical need, a plaintiff must allege “(1) a serious medical need; (2) the defendants' deliberate indifference to that need; and (3) causation between that indifference and the plaintiff's injury.” Barcelona v. Rodriguez, 847 Fed.Appx. 739, 741-42 (11th Cir. 2021) (per curiam) (quoting Danley, 540 F.3d at 1310). Critically, to establish a violation of the Eighth Amendment, there must be “some proof that officials acted with specific intent.” Id. at 741 (quoting Campbell v. Sikes, 169 F.3d 1353, 1362-63 (11th Cir. 1999)). To establish the intent element, a plaintiff must allege that the prison official had “‘subjective knowledge of a risk of serious harm' and disregarded that risk ‘by conduct that is more than [gross] negligence.'” Id. at 742 (quoting Danley, 540 F.3d at 1312) (alteration in original).
“Delay in access to medical attention can violate the Eighth Amendment . . . when it is tantamount to unnecessary and wanton infliction of pain.” Jacoby v. Baldwin Cnty., 596 Fed.Appx. 757, 766-67 (11th Cir. 2014) (per curiam) (quoting Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994) abrogated on other grounds by Hope v. Pelzer, 536 U.S. 730 (2002)). Deliberate indifference may be found in “situations where it is apparent that delay would detrimentally exacerbate the medical problem.” Id. at 767 (quoting Hill, 40 F.3d at 1187). However, where an inmate “complains that delay in medical treatment rose to a constitutional violation [the inmate] must place verifying medical evidence in the record to establish the detrimental effect of delay in medical treatment to succeed.” Id. (quoting Hill, 40 F.3d at 1187).
Here, Plaintiff's claim fails for two reasons. First, Plaintiff has not placed verifying medical evidence in the record to establish the detrimental effect of delay in medical treatment. In construing this requirement, the Eleventh Circuit collected cases from sister circuits and highlighted medical documents that could serve as verifying medical evidence, such as hospital records and medical expert testimony. Hill, 40 F.3d at 1188 n.24. It is Plaintiff's burden to place medical evidence into the record. Id. at 1188. Plaintiff has not placed any medical evidence into the record which would create a genuine issue of material fact as to whether Plaintiff suffered a detrimental effect because of a delay in medical treatment. To the extent that Defendant Sharpe places medical evidence in the record, that evidence does not show a detrimental effect of the alleged delay in treatment.
Second, Defendant Sharpe submits Affidavits stating that Plaintiff was not left to suffer in his cell after being sprayed by Defendant Sharpe. While Plaintiff alleges in his unsworn Complaint that Defendant Sharpe did not call medical after spraying him, this bare allegation, without more, is insufficient to create an issue of fact for trial such that he could defeat Defendant Sharpe's well-supported summary judgment motion. Solliday v. Fed. Officers, 413 Fed.Appx. 206, 207 (11th Cir. 2011) (per curiam) (citing Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990)). “Unsworn statements, even from pro se parties, should not be considered ‘in determining the propriety of summary judgment.'” Wells v. Cramer, 262 Fed.Appx. 184, 187 (11th Cir. 2008) (per curiam) (quoting Gordon v. Watson, 622 F.2d 120, 123 (5th Cir. 1980) (per curiam)).
As the nonmoving party, Plaintiff must go beyond his Complaint and by his own affidavit, or otherwise, show that there is a genuine issue for trial. At this time, all that is before the Court are Plaintiff's unsupported, unsworn allegations and the evidence presented by Defendant Sharpe showing that Plaintiff did receive medical attention. As a result, Plaintiff has not shown a genuine issue of material fact. Accordingly, the Court finds that Plaintiff has not shown that Defendant Sharpe was deliberately indifferent to Plaintiff's serious medical need.
Because the Court finds that Plaintiff has not shown that Defendant Sharpe violated Plaintiff's constitutional rights, the Court does not consider Defendant Sharpe's arguments regarding the alleged limitations to Plaintiff's potential damages recovery.
Conclusion
Therefore, for the above stated reasons, it is RECOMMENDED that Defendant Sharpe's Motion for Summary Judgment (Doc. 31) be GRANTED, and that judgment be entered in favor of Defendant Sharpe, the only remaining Defendant in this case.
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 the Recommendation to which objection is made; all other portions of the Recommendation may be reviewed by the district judge for clear error. Any objection is limited in length to TWENTY (20) PAGES. See M.D. GA. L.R. 7.4.
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 ofjustice.”
SO RECOMMENDED.