Opinion
5:19-cv-00510-TES-CHW
07-28-2022
DEVANTE L. LUNDY, Plaintiff, v. Deputy FERRERI, et al., Defendants.
Proceedings Under 42 U.S.C. § 1983 Before the U.S. Magistrate Judge
REPORT AND RECOMMENDATION
Charles H. Weigle, United States Magistrate Judge.
In this case, Plaintiff, an inmate in the Bibb County Law Enforcement Center, alleges that Defendant Deputy Ferrer, assisted by Defendants Deputy Smith and Sims, used excessive force against him and that all Defendants, except Defendant Sims, were then deliberately indifferent to his serious medical needs. (Docs. 1, 11, 20). Before the Court are motions for summary judgment from Defendants. (Docs. 47, 55). Plaintiff has not responded to either motion. As discussed below, Defendants are protected from suit under sovereign immunity and qualified immunity as a matter of law. It is RECOMMENDED that Defendants' motions for summary judgment be GRANTED.
Defendant Deputy Ferrer was identified by Plaintiff as Defendant Ferreri. (Doc. 50, p. 1, n. 1). Defendant Ferrer's corrected spelling will be used in this recommendation.
FACTS
The Court's screening order permitted the following claims to proceed for factual development: excessive force claims against Defendant Ferrer for punching and pepper sprayingPlaintiff; excessive force claims against Defendant Sims for failing to intervene when Defendant Ferrer punched Plaintiff; excessive force claims against Defendant Smith for restraining Plaintiff while Defendant Ferrer sprayed Plaintiff; and deliberate indifference claims against Defendants Ferrer, Smith, Stokes, and Ogletree and connected to the aftermath of the spraying incident. (Docs. 20, 22).
Throughout the record, the parties have used the terms mace, pepper spray, and O.C. spray. The labels are used interchangeably throughout this recommendation.
The evidence in the record, construed in the light most favorable to the Plaintiff, shows that on October 12-16, 2019, Plaintiff was incarcerated on various pending charges, including murder, at the Bibb County Law Enforcement Center (LEC), where Defendants Ferrer, Ogletree, Sims, Smith, and Stokes were employed as Sheriff's deputies assigned to the jail. (Docs. 47-2, ¶¶ 1-2, 12; 47-5, ¶¶ 3-4; 50-1, Ex. 1; 55-1, ¶¶ 1-3). On October 12, 2019, Plaintiff made a verbal threat to Defendant Ferrer's safety, which Deputy Gilbert overhead. (Docs. 47-6, ¶ 6; 55-1, ¶ 4). Plaintiff also indicated that he “had shanks all over the block.” (Doc. 55-3, ¶4). To discipline Plaintiff for the threat and so that deputies could search his cell for any weapons, he was to be moved to the LEC's lock-back block for 20 days. (Docs. 47-2, ¶ 4; 55-1, ¶ 4, 55-3, ¶ 4). Defendants Ferrer, Sims, and Smith, and Deputy Vickery went to Plaintiff's cell to transport him to lock-back. (Id.). Plaintiff did not immediate comply with deputies' orders to exit his bunk and questioned why he was being moved. (Docs. 1, p. 5; 47-3, ¶ 6; 55-1, ¶ 6, 55-3, ¶ 5). Plaintiff got out of his bunk and aggressively moved toward Defendant Ferrer, attempting to swing at him. (Docs. 47-3, ¶ 7). Defendant Ferrer placed his hand on Plaintiff's back to escort him from the cell, but Plaintiff continued to refuse to comply with commands. (Docs. 47-2, ¶ 5; 55-1, ¶ 6). As Plaintiff was being escorted from his cell, he attempted to strike Defendant Ferrer again. (Docs. 47-7, ¶ 6; 47-2, ¶ 5; 55-1, ¶ 6; 55-3, ¶ 6). Defendant Ferrer struck back by hitting Plaintiff with a closed fist. (Docs. 55-1, ¶ 6; 55-3, ¶ 6). Plaintiff continued to make threats against Defendant Ferrer and his family. (Docs. 47-3, ¶ 8; 55-3, ¶ 7). The other deputies, primarily Defendant Smith, separated Defendant Ferrer from Plaintiff, and Defendant Sims and Deputy Vickery managed to gain control of and handcuff Plaintiff. (Docs. 47-2, ¶ 5; 47-3, ¶ 8; 47-7 ¶ 6; 55-1, ¶ 6). The deputies began escorting Plaintiff to the infirmary to be checked out by medical staff. (Docs. 47-2, ¶ 5, 477, ¶ 7; 55-3, ¶ 7; 55-1, ¶ 6).
On the way to the infirmary, Plaintiff continued to be combative, verbally threatened Defendant Ferrer, and to tried to get closer to Defendant Ferrer causing the other deputies to take Plaintiff to the ground to gain his compliance. (Docs. 47-2, ¶ 6; 47-7, ¶¶ 5-6, 55-1, ¶ 6). Plaintiff refused to cooperate once in the infirmary, so medical staff instructed the deputies to transport Plaintiff to his cell. (Docs. 47-2, ¶ 7; 55-1, ¶ 7). While being escorted to the lock back cell, Plaintiff continued to verbally threaten the deputies, including Defendant Smith to whom Plaintiff said, “I will get your shit shot up tonight.” (Docs. 47-7, ¶ 8-9; 55-1, ¶ 7). As the group approached the lock back cell, Plaintiff remained combative and non-compliant and stated, “Wait until these handcuffs comes [sic] off and I'm gone [sic] beat your ass.” (Docs. 47-2, ¶ 8; 55-1, ¶ 8). Deputies were able to remove one handcuff despite Plaintiff's struggling. (Docs. 47-2, ¶¶ 8-9; 55-1, ¶ 8). During the process to remove the final handcuff, Plaintiff lunged for Defendant Ferrer and attempted to strike him. (Docs. 47-2, ¶ 9; 47-7, ¶ 9; 55-1, ¶ 8). Defendant Ferrer warned Plaintiff to comply with commands or he would be pepper sprayed. (Doc. 55-3, ¶ 10). When Plaintiff failed to comply, Defendant Ferrer sprayed Plaintiff. (Docs. 47-2, ¶ 9; 47-7, ¶ 9; 55-1, ¶ 8). To allow the other deputies to get safely out of the cell, Defendant Ferrer sprayed Plaintiff again through the cell door. (Doc. 55-1, ¶ 8). Plaintiff attempted to use toilet water to decontaminate himself of the spray. (Docs. 1, p. 6; 47-3, ¶ 10).
Once Plaintiff was secured, the deputies reported the use of the pepper spray to Lieutenant Patel. (Docs. 47-2, ¶10; 55-1, ¶ 8). Approximately 10 minutes later, Defendants Sims and Smith and Deputies Vickery and Perry returned to take Plaintiff to the infirmary for decontamination and to be checked out by medical staff. (Id.) Plaintiff showered and was provided a new jumpsuit by Defendant Smith and Deputy Vickery. (Docs. 47-2, ¶ 10, 47-3, ¶ 11; 47-7, ¶ 10-11; 55-3, ¶ 3). Lieutenant Patel allowed all the involved deputies to proceed with shift change. (Docs. 47-7, ¶ 11, 55-3, ¶ 11). Nothing in the record reflects that any Defendant or other deputies noted the lingering effects of the pepper spray in Plaintiff's cell or needed to decontaminate themselves.
During laundry and shower day on October 14, 2019, Defendant Stokes was on duty where Plaintiff was housed and attempted to exchange Plaintiff's jumpsuit. (Doc. 47-2, ¶ 11-12). Because Plaintiff refused to cooperate, Sergeant Moore permitted Plaintiff to be skipped while other inmates were allowed to shower. (Docs. 47-2, ¶ 13). A few hours later, Plaintiff agreed to shower after speaking to Sergeant Moore. (Doc. 47-2, ¶ 14). Plaintiff received a new jumpsuit, clean bedding, and clean towels at that time. (Id.) Defendant Stokes did not smell any traces of pepper spray during his interactions with Plaintiff on October 14, 2019. (Doc. 47-2, ¶ 12). There is no supporting evidence in the record that Plaintiff was not allowed to shower until October 16, 2019, as alleged in his complaint. See (Doc. 1, p. 6).
Defendant Ogletree had no interaction with Plaintiff during any of the events involved in Plaintiff's claims, (Doc. 47-2, ¶ 3). He received no complaints from Plaintiff about any of the events in his complaint. (Doc. 47-5, ¶ 6).
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).
Although Plaintiff failed to respond to the Defendants' motions for summary judgment, summary judgment is not properly awarded by default. See Trs. of Central Pension Fund of Int'l Union of Operating Eng'rs and Participating Emp'rs, 374 F.3d 1035, 1039 (11th Cir. 2004). Nevertheless, by failing to respond to the Defendants' motions, Plaintiff has failed to rebut the Defendants' statements of undisputed material facts, triggering consequences under both the Federal Rules of Civil Procedure and this Court's Local Rules.
When Defendants filed their motions for summary judgment, Plaintiff had apparently returned to the Bibb County LEC. However, Plaintiff's listed address with the Court at that time was not the LEC address. (Doc. 17). Defendants, aware of his correct address, served their motions to Defendant at the LEC. (Docs. 47, 55). Defendant has never updated his address to reflect his return to the LEC. After the Clerk's summary judgment notices, mailed to Defendant at his on-file address, were returned as undeliverable (Docs. 51, 58) and noting the service address used by Defendants, the Court directed the Clerk to resend the summary judgment notices to Defendant at the LEC, out of an abundance of caution. (Doc. 59). Despite this additional effort, Plaintiff has not responded to Defendants' motions.
Federal Rule of Civil Procedure 56(e)(2) provides that if a party “fails to properly address another party's assertion of fact as required by Rule 56(c),” then the Court may “consider the fact undisputed for purposes of the motion.” Rule 56(e)(2). This Court's Local Rule 56 similarly provides: “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.” MDGA Local Rule 56. Finally, Federal Rule of Civil Procedure 56(e)(3) provides that the Court may “grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to” summary judgment. Rule 56(e)(3). See also Urdaneta v. Wells Fargo Bank, N.A., 734 Fed.Appx. 701, 704 (11th Cir. 2018). Accordingly, because Defendants properly supported their factual assertions with specific citations to the record, and because Plaintiff has not responded, the Defendants' facts may be accepted by the Court as undisputed.
ANALYSIS
A. Qualified Immunity
Defendants request summary judgment on the ground that they are protected from suit under qualified immunity. When considering if summary judgment is appropriate based on qualified immunity, the Court “[draws] all inferences and [views] all of the evidence in the light most favorable to the nonmoving party.” Jones v. Michael, 656 Fed.Appx. 923, 925 (11th Cir. 2016) (internal quotations omitted). However, if the nonmoving party's version of the facts is “blatantly contradicted by the record, so that no jury could believe it, a court should not adopt that version of the facts for the purposes of ruling on the motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).
Qualified immunity “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). Defendants, as police officers, “cannot obtain qualified immunity unless [they establish they were] acting within [their] discretionary authority.” Underwoodv. City of Bessemer, 11 F.4th 1317, 1328 (11th Cir. 2021). It is undisputed that the acts which Defendants undertook fell within their discretionary authority. (Docs. 47-2, ¶ 17; 55-3, ¶ 13).
Once action under discretionary authority has been established, “the burden shifts to the plaintiff, who must show the [officers are] not entitled to qualified immunity.” Underwood, 11 F.4th at 1328. “At this stage, [the court asks] two questions: (1) ‘whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right,” and (2) if so, ‘whether the right at issue was ‘clearly established' at the time of the [defendants'] alleged misconduct.'” Id. at 1328 (quoting Pearson v. Callahan, 555 U.S. 223, 231, 232 (2009)). Both must be present to for a plaintiff to prevail. Id. Plaintiff has failed to show that any Defendant violated his constitutional rights. Therefore, Defendants are entitled to qualified immunity against Plaintiff's claims.
1. Defendants use of force against Plaintiff was objectively reasonable.
Plaintiff alleges Defendant Ferrer used excessive force in violation of Plaintiff's Fourteenth Amendment rights when punching him and then spraying him with mace. Connected to those incidents, he alleges Defendant Smith held him while Defendant Ferrer sprayed him with mace and Defendant Sims failed to intervene when Defendant Ferrer punched Plaintiff. “A pretrial detainee [, like Plaintiff,] must show only that the force purposely or knowing used against him was objectively unreasonable.” Patel v. Lanier Co. Ga., 969 F.3d 1173, 1182 (11th Cir. 2020) (quoting Kingsley v. Hendrickson, 576 U.S. 389, 396-397 (2015)). As the Eleventh Circuit explained in Patel, it recognized “‘the standard in the Fourteenth Amendment context has come to resemble the test that governs excessive-force claims brought by arrestees under the Fourth Amendment.'” Patel, 969 F.3d at 1182 (quoting Piazza v. Jefferson Co., 923 F.3d 947, 952-953 (11th Cir. 2019)).
Determining whether Defendants Ferrer, Sims, and Smith's actions were objectively reasonable requires balancing “the nature of the intrusion” on Plaintiff's rights “against the countervailing governmental interests at stake.” Graham v. Conner, 490 U.S. 386, 395 (1989). Each use of force is fact and situation specific, so there is no precise test to determine reasonableness. See Kingsley, 576 U.S. at 397 (quoting Graham, 490 U.S. at 396). A court must also consider the need to manage the LEC along with “policies and practices that in the judgment of jail officials that ‘are needed to preserve internal order and discipline and to maintain institutional security.'” Kingsley, 576 U.S. at 397. Courts have recognized that maintaining jail security and discipline may require jail officers to use force.” Piazza, 923 F.3d at 953. “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 397. “‘Although suspects have a right to be free from force that is excessive, they are not protected against a use of force that is necessary in the situation at hand.'” Jones, 656 Fed.Appx. at 929 (quoting Jean-Baptiste v. Gutierrez, 627 F.3d 816, 82111th Cir. 2010) (force involving an arrestee). The court in Kingsley provided a non-exclusive list of factors that a court may consider in determining the reasonableness of force used in any given situation. These factors 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.Kingsley, 576 U.S. at 397.
Based on the totality of circumstances in this case, with the undisputed material facts construed most favorably to Plaintiff, the actions by Defendants Ferrer, Smith, and Sims to gain Plaintiff's compliance and protect themselves did not constitute excessive force.
Although the Kingsley factors are not exclusive, they adequately provide a basis for considering Plaintiff's claims of excessive force. As to the first encounter with Plaintiff involving the claims that Defendant Ferrer used excessive force by physically attacking Plaintiff and that Defendant Sims assisted by failing to intervene during the attack, the undisputed facts show that Defendants' and their fellow deputies' use of force was not objectively unreasonable. When Defendants Ferrer and Sims encountered Plaintiff in his cell, Plaintiff was being moved to a lock- back dorm after making threats toward Defendant Ferrer. Upon being told to get up because he was being moved, Plaintiff questioned and refused to comply with the Defendant Ferrer's initial requests. Once Plaintiff exited his bunk, he moved aggressively toward Defendant Ferrer prior to being handcuffed and then swung at him. Plaintiff continued to try to strike Defendant Ferrer. Although Plaintiff did not succeed in striking Defendant Ferrer at first, there is nothing to suggest that Defendant Ferrer was not permitted to defend himself against Plaintiff's aggression. Defendant Sims then moved in to separate Plaintiff and Defendant Ferrer. Even as this event unfolded, the other deputies struggled with Plaintiff to gain compliance before continuing to transport Plaintiff, an inmate who had already made threats and boasted that he had shanks all over the block. Based upon the undisputed facts, there is also nothing to suggest that the physical force Defendant Ferrer used was more than necessary to contain the situation. Plaintiff presented a reasonable threat to Defendant Ferrer and the other deputies.
There is no dispute, as Defendant Ferrer, Smith, and Sims and their fellow deputies described, that Plaintiff continued to resist and remained physical and verbally combative the entire time he was being transported to the infirmary and then to the lock-back cell. The initial use of force by Defendant Ferrer was not excessive and did not violate Plaintiff's constitutional rights. Additionally, the facts show that Defendant Sims intervened between Plaintiff and Defendant Ferrer, contrary to Plaintiff's unsupported claim that Defendant Sims simply stood by while this incident occurred. Any claim against Defendant Sims for excessive force during this initial encounter is not supported by the record.
After Plaintiff refused to be treated at the infirmary following the initial use of force, he continued to be combative as deputies moved him to lock-back. He continued to threaten Defendant Smith, and once at the lock-back cell, Plaintiff refused commands that would allow his handcuffs to be safely removed. Defendants Smith and Sims and another deputy struggled to remove one handcuff, but as soon as they did, Plaintiff attempted to strike Defendant Ferrer before being taken to the floor. Plaintiff continued to resist and struggle in a situation where Plaintiff could wield his handcuffs as a weapon. To control this threat, Defendant Ferrer warned Plaintiff to comply and when Plaintiff did not, Defendant Ferrer sprayed Plaintiff with mace. The second spray occurred to allow the remaining deputies to safely exit the cell. The use of mace was proportional to the threat the officers, including Deputy Ferrer, reasonably perceived. Plaintiff was given adequate warnings to comply, and Plaintiff continued to be noncompliant the entire time Defendant Ferrer and his fellow deputies interacted with him. Spraying Plaintiff with mace was objectively reasonable in this scenario.
Plaintiff's claims that Defendant Smith held Plaintiff for the purpose of allowing Defendant Ferrer to spray him are not supported by the record. There is no evidence that Defendant Smith held Plaintiff for this purpose. The undisputed facts shows that Defendant Smith was trying to gain a combative Plaintiff's compliance, to remove the handcuffs, and exit the cell safely. The record does not support any claim of excessive force against Defendant Smith.
Although the evidence shows that Defendants' use of force did not violate Plaintiff's constitutional rights, the Court may also consider the second step of the qualified immunity analysis to determine whether the right violated was clearly established at the time of the violation. “A federal right is clearly established when the contours of the right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Jones, 656 Fed.Appx. at 926 (internal quotations omitted). Defendants' actions in this case do not violate any clearly established right. The Eleventh Circuit examined the use of pepper spray in Danley v. ___, 540 F.3d 1298 (11th Cir. 2008). Danley explained that “[w]hen jailers continue to use substantial force against a prisoner who has clearly stopped resisting..., that use of force is excessive.” Id. at 1309. The facts in this case show that Defendants Ferrer, Smith, and Sims faced a pre-trial detainee who continued to resist and remained non-compliant from the first time they had to remove him from his cell until the final time the pepper spray was used following requests to comply and warnings about what would happen if Plaintiff refused. Not until the final pepper spray was deployed did Plaintiff clearly stop resisting. There is no clearly established law showing that the use of force was unreasonable in this situation.
Although Danley was decided under the preKingsley standard, recent cases continue to cite it for the “clearly established right” prong of the qualified immunity analysis. See Patel, 969 F.3d at 1186-1187.
2. Defendants did not act with deliberate indifference.
Plaintiff alleged that all Defendants were deliberately indifferent to his serious medical needs following the events on October 12, 2019. (Doc. 1). Only Plaintiff's deliberate indifference claims connected to the aftermath of Deputy Ferrer's use of pepper spray were allowed to move forward in the Court's screening order. (Doc. 20). Defendant Sims was not mentioned in these claims. Likewise, there is no evidence Defendant Ogletree encountered Plaintiff in the aftermath of these events or denied him any right to shower and decontaminate. As discussed below, the undisputed facts show that no remaining Defendant acted with deliberate indifference to a serious medical need following the pepper spray incident.
To establish a deliberate indifference claim, Plaintiff “must establish (1) a serious medical need; (2) [Defendant's] deliberate indifference to that need; and (3) causation between that indifference and the plaintiff's injury.” Ross v. Corizon Med. Servs., 700 Fed.Appx. 914, 916 (11th Cir. 2017) (citing Mann v. Taser Int'l Inc. 588 F.3d 1291, 1306-1307 (11th Cir. 2009)). As to the second prong, “[P]laintiff must demonstrate ‘(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere negligence.'” Id. (citing McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999)).
For purposes of evaluating any potential deliberate indifference in this case, there is no dispute that being sprayed with pepper spray would require decontamination or possible medical care. Although Danley recognized that even a period of 20 minutes without decontamination could be problematic, the evidence of Plaintiff's security threat sets this case apart. While Plaintiff was not immediately taken to medical or decontamination, the facts show that, at most, a period of 10 minutes elapsed before Plaintiff was taken to decontamination. The evidence does not show that Plaintiff was simply disregarded and left for no reason. Plaintiff had been non-compliant, and only when he was sprayed did he become compliant. Plaintiff posed a safety concern, and it was reasonable for the deputies to report their use of force to a superior and to receive additional instruction before moving Plaintiff again. Defendants Smith and Sims and other deputies took Plaintiff to medical and to shower and, despite Plaintiff's allegations otherwise, brought him a new jumpsuit. Before shift change, Defendant Ferrer knew that Plaintiff had been taken to shower and given new clothes. Based on the record before the Court, there is no genuine issue of material fact that Defendants Ferrer and Smith disregarded any risk to Plaintiff's serious medical need. The undisputed facts show Plaintiff was permitted to decontaminate on October 12, 2019.
There is also no evidence showing that Defendant Stokes acted with deliberate indifference to Plaintiff by denying him a shower on October 14, 2019. Instead, the evidence shows that Defendant Stokes did not detect the smell of mace in Plaintiff's cell and had no direct knowledge of the events on October 12, 2019. When Defendant Stokes offered a shower on October 14, 2019, and a change of bedding and clothes, Plaintiff refused to cooperate. It took the supervising officer's intervention before Plaintiff agreed to shower. Any delay in Plaintiff showering and changing clothes on October 14, 2019, falls on Plaintiff and not on Defendant Stokes. There are no facts showing that Defendant Stokes acted with any deliberate indifference toward Plaintiff.
No evidence supports any allegations against Defendant Ogletree. The undisputed evidence shows that Defendant Ogletree had no interaction with Plaintiff and no participation in the events alleged in the complaint. Therefore, there is no genuine issue of material fact as to Plaintiff's claim for deliberate indifference against Defendant Ogletree.
Because there is no evidence to show that any Defendant violated defendant's constitutional rights, either through using excessive force or by showing deliberated indifference to a serious medical need, Defendants are entitled to qualified immunity.
B. Money damages are barred against Defendants in their official capacities under the Eleventh Amendment
Defendants argue that any federal claim for money damages is barred against them in their official capacities. (Docs. 47-1, p. 9-10; 55-2. p. 6-7). To the extent Plaintiff intended to recover money damages against Defendants in their official capacities, such claims would be barred by the Eleventh Amendment and 42 U.S.C. § 1983. See generally, Kentucky v. Graham, 473 U.S. 159, 169 n. 17. Defendants were employed by the Bibb County Sheriff's office in October 2019. A sheriff's authority is derived from the state, and he is, therefore, considered an “‘arm of the state' in establishing force policy at the jail....”Manders v. Lee, 338 F.3d 1304, 1310-1311, 1319, 1328 (11th Cir. 2003). As the State of Georgia has not waived sovereign immunity, and § 1983 was not meant to abrogate a state's Eleventh Amendment sovereign immunity, Plaintiff is barred from suing Defendants in their official capacities for damages. Section 1983 itself also precludes any official-capacity claims against Defendants for nominal damages because the state is not a person for under the meaning of § 1983. Moody v. City of Delray Beach, 609 Fed.Appx. 966, 967 (11th Cir. 2015) (quoting Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989)). Section 1983 provides no remedy for the Plaintiff against Defendants in their official capacities.
CONCLUSION
Based on the foregoing, it is RECOMMENDED that Defendants' motions for summary judgment (Docs. 47, 55) be GRANTED.
OBJECTIONS
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. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. 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.