Opinion
Civil Action 23-0169-CG-N
08-05-2024
DONALD LAMAR MAY, Plaintiff, v. LIEUTENANT BOOKER, et al., Defendants.
REPORT AND RECOMMENDATION
KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE
Plaintiff Donald Lamar May, an Alabama prison inmate proceeding without a lawyer (pro se), filed a complaint under 42 U.S.C. § 1983. This action has been referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(R). The action is currently before the Court on Defendants' motion for summary judgment. (Doc.32). For the reasons discussed herein, it is ordered that this motion be GRANTED and the Plaintiff's action be DISMISSED with prejudice in its entirety.
The Court converted the Defendants' Answer, Special Report, and exhibits to a motion for summary judgment. (Docs. 29-31).
I. Complaint Allegations and Background
Plaintiff Donald Lamar May (“May”) is suing Lieutenant Keidra Booker, Officer Prince Salter, Officer Jakaylea Dees, Officer Ronald Gibson, and Officer LaVenta Johnson, for using excessive force against him on February 1, 2021, while incarcerated at Escambia County Detention Center (“the jail”). (Doc. 9).
May provided general names and physical descriptions of the officers that he contends were involved in the use of force incident subject of this compliant. May incorrectly named Officer Jakaylea Dees as “Officer Deeds” and Ronald Gibson as “Officer Gibbs” in his amended complaint. Defendants assert that there were no employees at the Escambia County Jail during the time in question with the last name “Deeds” or “Gibbs.” (Doc. 30 at 1, n.1). Officer Dees and Gibson have answered the complaint and filed a special report, and the Court will address all allegations against “Deeds” or “Gibbs” to be against Officer Dees and Gibson, respectively.
May was held at Escambia County Detention Center as a convicted prisoner after his community corrections sentence was revoked. (Docs. 29-1; PageID.115-120).
A. Summary of Facts
On the morning of February 1, 2021, May was taken to medical after he complained of pain from an incident the day before, where officers used force against him. The nurse performed a body chart and noted an abrasion to the right side of his neck. (Doc. 29-1; PageID.128). May was then taken to see Warden Hetrick. The parties dispute whether May was restrained during this time but agree that May was waiting in the hallway to see the warden when the incident subject of this suit occurred. From there, the parties' descriptions of the incident differ considerably.
According to May, while he was waiting to see the warden, an altercation occurred in the hallway as correctional officers escorted another inmate past him. (Doc. 9; PageID.50-51). May claims the altercation became “physically and emotionally escalated” and, without probable cause, he was assaulted by Defendants. Specifically, he alleges:
• Officer Gibson “immediately made his way to Plaintiff Donald Lamar May in the heat of emotion began using ‘foul language' to precipitate and unlawfully justify putting Plaintiff Donald L. May in a UFC style chokehold around his neck.” (Doc. 9; PageID.51).
• Lieutenant Booker aided Officer Gibson by punching May in the back and, after the punching became physically exhausting, she tased him in the back. (Id.).
• Officer Salter then struck, punched May on his sides and back. (Id.; PageID.52).
• Officer Johnson “abandoned” her duties as “laundry personnel” to engage in the conflict. (Id.).
• Officer Dees, as a member of the “kitchen culinary staff” also responded to the incident by “unnecessarily” pinning her whole body against May's injured spine and neck while he was “already subdued.” (Id.).
May contends the force used was excessive and unnecessary because he was handcuffed and, thus, could not “reasonably [be] perceived as a liable threat” and was “[unable] to defend himself.” (Id.; PageID.51). May states he suffered neck, throat and back trauma as well as post-traumatic stress disorder from the incident. (Doc. 1; PageID.6; Doc. 39).
Defendants Booker, Salter, Dees, Gibson, and Johnson tell a different story about what happened on February 1, 2021. Defendants' version of the event is taken from the February 1, 2021 Incident Report (“the Incident Report”), jail medical records, and the personal affidavits of the Defendants. (See Docs. 29, 30, 31, 40). In short, Defendants assert that the use of force was in response to May's actions and was necessary to gain control of May and restore order to the situation.
According to Defendants, on February 1, 2021, while May was in the hallway outside the warden's office, Officer Lambeth (not Defendant Gibson, as alleged by May in his pleadings) passed by May, while escorting another inmate from the warden's office to the nurse. Upon passing, May began cussing. Officer Lambeth ordered May “not to say another word” or to “shut the f--- up.” (Doc. 29-1; PageID.126-27). In response, May told Officer Lambeth to “shut the f---up” and called Officer Lambeth a “f--- boy.” (Id.). May stepped towards Officer Lambeth with “balled fists,” causing Officer Lambeth to feel threated. Officers Walden and Travis stepped in and escorted the other inmate out of the hallway, and Officer Lambeth attempted to restrain May, - who continued to threaten Officer Lambeth, stating that he would “beat his a--,” that he would catch Lambeth on the street, and exclaimed how he would handle Officer Lambeth on the streets. (Id.). Defendants contend that Officers Walden, Goolsby, and Booker assisted in restraining May (who is six foot and over two hundred pounds), including Defendant Booker deploying her taser, in dry stun mode, to May's left leg to gain compliance. (Id., PageID.126-27; Doc. 29-3, PageID.140-42).
• Defendants Gibson, Salter, and Johnson testify by affidavit that they were not in the hallway outside the warden's office at the time of the complained of incident, did not use force against May, nor did they witness force used against May on February 1, 2021. (Doc. 29-4, PageID. 147; Doc. 29-45 PageID.149; Doc. 29-6, PageID.151-52).
• Defendant Dees testifies that she clocked out of work on January 31, 2021 at 7:06 p.m. and did not return until February 3, 2021. (Docs. 31-1; 40-1). She specifically states that she “was not at the Escambia County Jail on February 1 and 2, 2021” and “did not come to the Escambia County Jail at all on February 1, 2021 or February 2, 2021.” (Doc. 31-1; PageID.177).
• Defendant Lt. Booker testifies she was in the hallway near the warden's office on February 1, 2021, when she heard a commotion and observed the incident occur between Officer Lambeth and May as laid out in the Incident Report. (Doc. 29-3). She testifies that Officer Lambeth was only able to partially retrain May, as “May refused to calm down and continued to lodge threats and resist Officer Lambeth.” (Id.). Officers Goolsby and Walden attempted to assist but were also unable to immediately bring May under control. Defendant Lt. Booker testifies that she used a “drive stun” to May's leg; thereafter, May fell to the ground and was handcuffed. (Id.). Defendant Lt. Booker further testifies that she used no other force against May and did not witness any other officer assault May or “use a degree of force beyond what was necessary to restrain inmate May and address his verbal and physical threats.” (Id.; PageID.142).
Following the incident, May received a body chart in the healthcare unit which reflected no new injuries - only the sustained abrasion to his neck which was documented earlier that morning, and his statement that he was “sick of this racist shit.” (Doc. 29-1; PageID.129). May was then placed in a restraint chair per the nurse for suicide watch (Id.), where he complained of a sore throat, but no swelling or redness was seen. (Id.; PageID.132). Photographs were also taken of May which reflect several scratches and abrasions to his right shoulder and neck. (Id.; PageID.134).
B. Procedural History
On November 22, 2021, May submitted a grievance at the jail related to the February 1, 2021 incident, as well as a January 31, 2021 incident involving force used against him. (Doc. 36; PageID.211-122). As to the February 1, 2021 incident, May alleged in the grievance that, as he was seated outside the jail warden's office, “Deputy Sheriff John Doe, a white officer, stated turn your ass to the wall, and while May was handcuffed Officer John Doe seized him and began choking him as he lifted and threw May to the floor, and began beating him.” Id. Notably, unlike his current complaint allegations, May's grievance claimed that Lt. Booker, Ms. Dees, and Ms. Johnson stopped Officer John Doe from continuing the excessive force. Id.
May filed substantially similar allegations in this Court on October 7, 2022, in case number 22-cv-392-CG-N. That complaint again alleged that Lt. Booker and Officer Dees intervened to stop the excessive force used by Officer John Doe against him while he was handcuffed with his hands behind his back, sitting outside of the warden's office on February 1, 2021. (See S.D. Ala. 22-cv-392-CG-N, Doc. 1 at 5, 7). May was ordered to file an amended complaint setting out the January 31, 2021 and February 1, 2021 incidents separately. (See S.D. Ala. 22-cv-392-CG-N, Doc. 11). Which May did in April 2023, and for the first time, he asserted that more than one officer was liable for using force against him on February 1, 2021. Specifically, he claimed that Lt. Booker, Officer Dees, and two unknown officers assaulted him. (See S.D. Ala. 22-cv-392-CG-N, Doc. 15; S.D. Ala. 23-169-CG-N, Doc. 1). The Court created this separate action for May's allegations related to February 1, 2021. (Docs. 1, 3).
Without assessing the truth of the facts asserted, the Court takes judicial notice of the records of this Court because they are public records that can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. See United States v. Rey, 811 F.2d 1453, 1457 n.5 (11th Cir. 1987) (“A court may take judicial notice of its own records and the records of inferior courts.”); Horne v. Potter, 392 Fed.Appx. 800, 802 (11th Cir. 2010) (per curiam) (“The district court properly took judicial notice of the documents in Horne's first case, which were public records that were ‘not subject to reasonable dispute' because they were ‘capable of accurate and ready determination by resort to sources whose accuracy could not reasonably be questioned.' ”) (quoting Fed.R.Evid. 201(b)).
The Court reviewed May's complaint and noted insufficiently pleaded claims, as well as the inconsistency of the February 1, 2021 allegations compared to his initial complaint. (Doc. 8). At the Court's direction, May filed the amended and operative complaint, repeating his allegations against Lt. Booker and Officer Dees and, additionally, naming Officers Johnson, Salter, and Gibson. (See Doc. 9). Defendants have answered the complaint, filed a special report and exhibits (See Docs. 29, 31), which the Court has reviewed and construed as a motion for summary judgment. (Doc. 34). May has been given the opportunity to oppose the motion and has done so, submitting copies of the Incident Report, medical records, and institutional records that were provided by Defendants in their special report. (See Docs. 35-39).
In opposition to this motion, May moved for production of the captured video footage of the February 1, 2021 incident subject of this complaint. (Doc. 38). His request was granted. (Doc. 43). However, after conducting a search for the video, Defendants, through the sworn declaration of Warden Hetrick, testify that no such video exists. According to Defendants, at the time of incident, the jail's camera system was only capable of preserving two weeks of data in its memory. (Doc. 44-1). Warden Hetrick declares that when May submitted his grievance in November 2021, the jail's camera recordings were searched, and no video existed at that time, nor had May submitted any prior requests to the jail to preserve the video. (Id.). Out of an abundance of caution, an additional search was conducted, and Warden Hetrick has not been able to locate any video depicting a physical encounter between May and any of the Defendants on February 1, 2021. (Id.).
Accordingly, Defendants' motion for summary judgment is now ripe for consideration.
II. Standard of Review
Summary judgment is proper if the party asking for summary judgment “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 “substantive law will identify which facts are material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court does not “weigh the evidence and determine the truth of the matter” on summary judgment. Id. at 249. Rather, the Court “determine[s] whether there is a genuine issue for trial.” Id. at 250. “The mere existence of a scintilla of evidence” supporting the nonmoving party is not sufficient to defeat a motion for summary judgement. Id. at 252.
Because Defendants are asking for summary judgment, they must demonstrate, by identifying evidence in the record, the absence of a genuine dispute of material fact or show that the nonmoving party, Plaintiff, does not have evidence in support of some element of his case on which he bears the ultimate burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 32224 (1986). If Defendants carry their burden, then Plaintiff is required to “‘go beyond the pleadings,' and by [his] own affidavits, or by ‘depositions, answers to interrogatories, and admissions on file,' designate specific facts showing that there is a genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (per curiam) (quoting Celotex, 477 U.S. at 324). “[I]f the record taken as a whole could lead a rational trier of fact to find for the nonmoving party,” then a genuine issue of material fact exists. Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004).
In considering a motion for summary judgment, courts are required to “view the evidence, draw all reasonable factual inferences, and resolve all reasonable doubts in favor of the non-movant.” Baxter v. Roberts, 54 F.4th 1241, 1253 (11th Cir. 2022) (quoting Stryker v. City of Homewood, 978 F.3d 769, 773 (11th Cir. 2020)). This requirement extends only “to the extent supportable by the record.” Id. (quoting Scott v. Harris, 550 U.S. 372, 381 n.8 (2007). Where “opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott, 550 U.S. at 380.
III. Discussion and Analysis
A. Immunity Defenses.
Defendants have asserted immunity defenses. (Doc. 30). To the extent Defendants are being sued in their official capacities, as a county deputies and officers, they are considered employees of the State and are immune from suit pursuant to the Eleventh Amendment, which bars “suits against a state brought in federal court by citizens of that state.” Harbert Int'l, Inc. v. James, 157 F.3d 1271, 1277 (11th Cir. 1998); Haywood v. Alexander, 121 So.3d 972, 978 (Ala. 2013) (county sheriffs and their deputies are employees of the State).
“Qualified immunity protects government officials performing discretionary functions from suits in their individual capacities unless their conduct violates ‘clearly established statutory or constitutional rights of which a reasonable person would have known.'” Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003) (quoting Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)). Because there is no dispute that the defendants in this action were acting within their discretionary authority at all times when the acts in question occurred, “the burden shifts to the plaintiff to establish that qualified immunity is inappropriate.” Garcia v. Casey, 75 F.4th 1176, 1185 (11th Cir. 2023) (quotation omitted). To do so, May must show both (1) the defendants violated a constitutional right of May's, and (2) that the right was clearly established at the time of the alleged violation. See, e.g. Jacoby v. Baldwin County, 835 F.3d 1338, 1344 (11th Cir. 2016). Notably, the defense of qualified immunity is not available in cases where force is used ‘maliciously and sadistically to cause harm' as such “is clearly established to be a violation of the Constitution by the Supreme Court decisions in Hudson and Whitley.” Skrtich v. Thornton, 280 F.3d 1295, 1301 (11th Cir. 2002) (citation omitted); see also Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982) (Qualified immunity does not extend to an officer who “knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff].” (internal quotation marks omitted and alteration in original)).
Accordingly, the Court turns to examine whether there was a constitutional violation.
B. Claims Under 42 U.S.C. § 1983.
The Eighth Amendment's prohibition against cruel and unusual punishment, U.S. Const. amend. VIII, governs the use of force by prison officials against convicted inmates. Campbell v. Sikes, 169 F.3d 1353, 1374 (11th Cir. 1999). To establish an Eighth Amendment excessive force claim against the defendants, a plaintiff must prove both an objective and subjective component. That is, he must show that the alleged wrongdoing was objectively “harmful enough” to establish a constitutional violation and that the defendants “act[ed] with a sufficiently culpable state of mind; i.e., that they acted maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992) (citations omitted); see also Lumley v. City of Dade City, Fla., 327 F.3d 1186, 1196 (11th Cir. 2003) (to satisfy the object conduct, the plaintiff must show the complained of conduct “shocks the conscience”). Both inquiries are contextual, and “the objective harm inquiry is responsive to contemporary standards.” Thomas v. Bryant, 614 F.3d 1288, 1304 (11th Cir. 2010). While not every “malevolent touch” by a prison guard amounts to excessive force, a de minimis use of force is cognizable under the Eighth Amendment if it is “repugnant to the conscience of mankind.” See Wilkins v. Gaddy, 559 U.S. 34, 37-38 (2010) (quotation marks omitted).
In a prison setting, force is deemed legitimate if it is applied “in a good faith effort to maintain or restore discipline [and not] maliciously and sadistically to cause harm.” Whitley v. Albers, 475 U.S. 312, 320-21 (1986) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir. 1973)). In evaluating excessive force claims, this Circuit recognizes two important principles (1) “that unreasonable or unnecessary force does not necessarily constitute excessive force for purposes of the Eighth Amendment” and (2) “that even though the Constitution does not require comfortable prisons, it does not permit inhumane ones.” Williams v. Radford, 64 F.4th 1185, 1196 (11th Cir. 2023) (internal citations and quotation marks omitted). Courts look to a variety of factors to determine if force was applied maliciously or sadistically to cause harm, including: “(1) the extent of injury; (2) the need for application of force; (3) the relationship between that need and the amount of force used; (4) any efforts made to temper the severity of a forceful response; and (5) the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials on the basis of facts known to them.” Id. at 1196-97 (quoting Campbell v. Sikes, 169 F.3d 1353, 1375 (11th Cir. 1999) (internal quotation marks omitted). At this stage of the case, the inquiry is not whether the force used was definitively malicious or sadistic, but whether “the evidence, viewed in the light most favorable to the plaintiff, will support a reliable inference of wantonness in the infliction of pain.” Id. at 1196 (quoting Campbell, 169 F.3d at 1375)).
To overcome summary judgment, Plaintiff “must do more than simply show that there is some metaphysical doubt as to the material facts.” Scott v. Harris, 550 U.S. 372, 380 (2007) (internal quotation marks and citation omitted). And, the court is obligated to accept the plaintiff's version of facts, “provided they are sufficiently supported by evidence of record,” Sconiers v. Lockhart, 946 F.3d 1256, 1263 (11th Cir. 2020), and “specific facts” in Plaintiffs sworn complaint must be considered in opposition to summary judgment. See Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014). However, the undersigned notes the existing tension between accepting the plaintiff's version of the facts as true while concurrently recognizing the parties' evidentiary burden on summary judgment.
Based on the record before the Court, some degree of force was justified under the circumstances, as May indicates that an “altercation” occurred in the hallway that “escalated,” “physically and emotionally,” leading to the usage of “foul language.” See Danley v. Allen, 540 F.3d 1298, 1307-08 (11th Cir. 2008) (the need for the use of force was established when inmate created a disturbance) overruled in part on other grounds as recognized by Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010); Channel v. Smith, CV 317-060, 2018 WL 5315209, at *4-5 (S.D. Ga. Oct. 26, 2018) (force warranted when the plaintiff bowed up to officer who was escorting other unshackled inmates and plaintiff offered continuing active resistance); Coleman v. Presciti, No. 2:08-CV-780-FtM-29SPC, 2011 WL 5357525, at *8 (M.D. Fla. Nov. 7, 2011) (the plaintiff created “need for the use of force by his lunging toward a correctional officer”); Brown v. Felton, No. 96-14176-CIV, 2008 WL 3891273, at *4 (S.D. Fla. Aug. 21, 2008) (officer “reasonably perceived [the inmate's] aggressive stance and lunge as precursors to physical violence.”). This is true even with an inmate who is handcuffed or restrained. See Mobley v. Palm Beach Cty. Sheriff Dep't, 783 F.3d 1347, 1353 (11th Cir. 2015) (“[F]orce applied while a suspect has not given up and stopped resisting and may still pose a danger to the arresting officers, even when that force is severe, is not necessarily excessive.”). And force may be used in response to an inmate verbally resisting an officer. See Miles v. Jackson, 757 Fed.Appx. 828, 830 (11th Cir. 2018) (“use of a takedown is not disproportionate to the need to control an inmate who has failed to obey a jailer's orders.”) (citation omitted). Defendants assert that no unnecessary force was used against May but only the force required to restore order and discipline to the situation. To be successful on his claim, May, thus, bears the burden at summary judgment of showing sufficient evidence to establish that he was compliant with orders such that the force used infers wantonness in the infliction of pain. Williams, 64 F. 4th at 1196. He also bears the responsibility of connecting the named defendants to a constitutional violation. Cf., Martinez v. Burns, 459 Fed.Appx. 849, 850-851 (11th Cir. 2012) (“In order for a plaintiff to establish a claim under 42 U.S.C. § 1983, he must prove (1) a violation of a constitutional right, and (2) that the alleged violation was committed by a person acting under the color of state law.”) (citing Holmes v. Crosby, 418 F.3d 1256, 1258 (11th Cir. 2005).
Despite resolving all factual issues in May's favor, the undersigned finds May's evidentiary burden cannot be ignored, and May has failed to carry his burden.
1. Defendants Gibson, Salter, and Johnson are entitled to judgment as a matter of law.
Defendants have submitted the Incident Report from February 1, 2021, which reflects Officers Lambeth, Goolsby, Walden (nonparties to this suit), and Booker were responsible for using force against May on February 1, 2021. May has not disputed this, nor has he questioned the accuracy of the Incident Report submitted by Defendants. (Indeed, he has relied on it in response to this motion.) Nor has May attempted to amend his complaint to name the officers listed in the Incident Report. More directly, May has failed to address that four out of his named five defendants are not reported in any institutional document as having participated in the February 1, 2021 incident. And neither has May disputed the affidavits of Officers Gibson, Salter, and Johnson that they were not present in the hallway of the jail during the February 1, 2021 incident.
Taking the record as a whole, because May has utterly failed to put forth any evidence which contradicts or challenges that Defendants Gibson, Salter, and Johnson were not present in the hallway during the February 1, 2021 incident and that they did not use force against May on February 1, 2021 - including a self-serving declaration or any objection - such that no reasonable juror could find in favor of May on these claims. Stated another way, based on the record before the Court, no reasonable jury could find for May. Consequently, Defendants Gibson, Salter, and Johnson have carried their burden of showing no genuine issue of material fact exists as to whether they used excessive force against May on February 1, 2021.
2. Defendants Booker and Dees.
The record does confirm, however, that Defendant Booker used force against May on February 1, 2021. And May maintains that Defendant Dees was present on February 1, 2021, disputing her timecard submission and testimony that she was not at the jail on February 1, 2021. (See Docs. 36, 38); Cf., United States v. Stein, 881 F.3d 853, 857 (11th Cir. 2018) (“[A] litigant's self-serving statements based on personal knowledge or observation can defeat summary judgment.”). Accordingly, the Court turns to the claims against these Defendants.
To start, the undersigned finds no merit to Defendants' argument that the claims asserted against Booker and Dees are frivolous solely because they are inconsistent with May's grievance and initial lawsuit allegations. (See Doc. 30; PageID.160-63). Though May originally stated that he was assaulted by a single unidentified white male and that Officer Dees and Lieutenant Booker came to his aid, the Incident Report submitted by Defendants confirms that multiple officers participated in the use of force against May on February 1, 2021, including Defendant Booker. (See Doc. 29-1; PageID.19-20). Furthermore, Defendant Booker admits that she used force against May on February 1, 2021. (Doc. 29-3). Accordingly, Defendants' argument cannot be accepted at this stage. Neither does the undersigned find merit to Defendants' argument that this action should be dismissed pursuant to 42 U.S.C. § 1997(e)(a) for May's failure to assert allegations against Officers Dees, Johnson, Salter, and Booker in the grievance he filed at the jail. (Doc. 30; PageID.164-65). Review of the grievance shows that May provided sufficient information regarding the February 1, 2021 incident such that jail officials were put on notice of his complaint and able to address his complaint. Jones v. Bock, 549 U.S. 199, 219 (2007) (Exhaustion is not per se inadequate under the PLRA when an individual later sued was not named in the grievance.); see also Brown v. Sikes, 212 F.3d 1205, 1207-10 (11th Cir. 2000) (The exhaustion requirement does not always preclude an inmate from suing any defendant other than those named in the administrative grievance. Instead, it requires that the inmate provide as much relevant information as he reasonably can in the administrative grievance process). Accordingly, under these facts, it appears May alerted jail officials to his complaint prior to the filing of the current action, “allowing [the jail] to address complaints about [the incident] before being subjected to suit,” thus, satisfying “one of the leading purposes of the exhaustion requirement.” Jones, 549 U.S. at 219 (citing Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004) (“We are mindful that the primary purpose of a grievance is to alert prison officials to a problem, not to provide personal notice to a particular official that he may be sued; the grievance is not a summons and complaint that initiates adversarial litigation”)); see also Parzyck v. Prison Health Services, Inc., 627 F.3d 1215, 1217-19 (11th Cir. 2010) (Even though the inmate's first grievance did not name a particular doctor, it was sufficient to alert the prison officials to the problem and give them an opportunity to resolve it.).
Turning to the remaining claims, May alleges Defendant Dees used excessive force against him by “unnecessarily” pinning her whole body against his injured spine, neck while he was “already subdued” and that Defendant Booker punched him and deployed a single “drivestun” to him, while he was restrained in handcuffs. (Doc. 9; PageID.51-52). However, the record reflects that force was applied in a good faith effort to restore or maintain discipline and order.
A “drive-stun” means the prongs are removed from the taser gun, such that the weapon will cause pain, but it will not disrupt muscle control. See Hoyt v. Cooks, 672 F.3d 972, n.4 (11th Cir. 2012) (“In the ‘drive stun' mode, the weapon is pressed against a person's body and the trigger is pulled resulting in pain (a burning sensation) but the ‘drive stun' mode does not disrupt muscle control.”).
No doubt, “[p]rison guards may use force when necessary to restore order and need not wait until disturbances reach dangerous proportions before responding.” Bennett v. Parker, 898 F.2d 1530, 1533 (11th Cir. 1990). Specifically, force may be used against a prisoner who fails to comply with the direct orders of an officer. Pearson v. Taylor, 665 Fed.Appx. 858, 864 (11th Cir. 2016) (“Officers are not required to convince every prisoner that their orders are reasonable and well-thought out before resorting to force.”) (internal citation omitted); West v. Sconyers, No. 2:08-Cv-82-MEF(WO), 2010 WL 4822084 (M.D. Ala. Nov. 3, 2010) (“Strict adherence to rules and orders within a penal institution's walls are necessary for discipline, and even more importantly, for the safety and security of inmates, guards, and visitors alike.”). Correctional officers are given a “wide range of deference to prison officials acting to preserve discipline and security,” including when considering “[d]ecisions made at the scene of a disturbance.” Bennett, 898 F.2d at 1533 (held that grabbing an inmate by the throat and pushing him against the bars of his cell during an inmate count was not disproportionate to the need to stop the inmate from shouting and demanding to be let out); see also Bell v. Wolfish, 441 U.S. 520, 547 (1979). That an officer told May to “shut the f--- up” evidences a desire to restore order to the situation, not a wish to sadistically cause harm. Cockrell v. Sparks, 510 F.3d 1307, 1312 (11th Cir. 2007) (Noting that “threatening comments are circumstantial evidence of mental state that can be considered in determining the intent underlying the use of force,” officer telling inmate to “‘shut the hell up' evidences a desire to restore order, not a wish to sadistically cause harm.). And “the use of a Taser in drive-stun mode is generally held to be a preferred and lesser use of force than the potential escalation of physical force and brutality.” Thomas v. Demings, No. CV 15-00291-CB-C, 2016 WL 3356791, at *7 (S.D. Ala. May 2, 2016), report and recommendation adopted, No. CV 15-00291-CB-C, 2016 WL 3351033 (S.D. Ala. June 15, 2016).
Defendants have put forth sufficient evidence, namely through the Incident Report, reflecting the force used against May was in response to a perceived security issue after May refused orders to stop talking and threatened Officer Lambeth verbally and in posture. Importantly, these facts are not contradicted by May's verified complaint or any pleading, nor has May denied, disputed, or refuted them. Instead, in opposition to this motion, May relies on the Incident Report to establish that Officer Lambeth cussed at him (as alleged in the complaint) before placing him in a chokehold. (See Doc. 36; PageID.236-38). Consequently, the record as a whole supports that May was given orders to which he did not comply and further supports that May was disruptive, aggressive, verbally threatened and physically resisted Officer Lambeth. Accordingly, the force used against May was applied to restore discipline and not maliciously and sadistically to cause harm. Whitley v. Albers, 475 U.S. at 320-21.
As to Defendant Dees, taking May's allegations as true, there is no evidence or allegation to suggest that Defendant Dees was aware that May's back was injured on February 1, 2021. Thus, no reasonable jury could find that an officer pinning herself against an uncooperative and disruptive inmate to gain control of him rises to the level of wanton infliction of pain. Id. at 319 (“It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause.”). Nor can the alleged conduct of Defendant Dees be considered to “shock the conscious,” nor punishment “inconsistent with contemporary standards of decency” and “repugnant to the conscience of mankind” in violation of the Eighth Amendment. Id. at 327 (citations and internal quotation marks omitted).
As to Defendant Booker, the record evidence shows she used force to assist in gaining control of May after Officers Lambeth, Goolsby, and Walden were unable to do so. (Doc. 29-3). Notably, Defendant Booker's use of her taser in drive stun reflects intent to deescalate the situation and prevent the use of physical force and brutality. See Brooks v. City of Seattle, 599 F.3d 1018, 1027-1028 (9th Cir. Wash. 2010) (Force from drive-stun is “more on par with pain compliance techniques, which this court has found involve[s] a ‘less significant' intrusion upon an individual's personal security than most claims of force, even when they cause pain and injury.”); Jones v. City of Warren, 2014 U.S. Dist. LEXIS 51550, *32, 2014 WL 1464458 (E.D. Mich. Apr. 15, 2014) (Single drive-stun found to be quick, efficient and less traumatic to plaintiff than further escalating physical efforts to overcome resistance of plaintiff to permitting his hands to be cuffed behind his back.); Law v. City of Post Falls, 772 F.Supp.2d 1283 (D. Id. 2011) (Court determined, even if plaintiff was entirely compliant, use of Taser in drive-stun move would not be excessive force based on rationale of Brooks v. City. of Seattle.). Defendant Brooks testified, and nothing in the record contradicts, that all force stopped after she deployed a single drive stun to May's leg, and he became compliant. This supports that the force was applied in a good faith effort to restore discipline. Likewise, the body chart created after the February 1, 2021 incident reflects no new injuries from the altercation. (Doc. 36; PageID.206, 207). No bruising or redness, or cuts were noted. (Id., PageID.206, 208-09). The photographs taken of May reveal small scratches/abrasions on the right side of his neck and shoulder, which are noted as having occurred the previous day, can only be viewed as minor. (Id., PageID.203). And May was evaluated by the nursing staff later that day and on February 2 and 3, 2021, as well, and he made no mention of being in pain or needing further treatment. (Id., PageID.209). This evidence, taken as a whole and viewed in the light most favorable to the plaintiff, does not support a reliable inference of wantonness in the infliction of pain, and the case should not go to a jury.
IV. Conclusion
Based on the foregoing, the undersigned recommends that summary judgment should be GRANTED in favor of Defendants and that this action be DISMISSED with prejudice in its entirety.
The instructions that follow the undersigned's signature contain important information regarding objections to the report and recommendation of the Magistrate Judge.
Notice of Right to File Objections
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(b); S.D. ALA. GenLR 72(c). The parties should note that under 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." 11th Cir. R. 3-1. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.