Opinion
CIVIL ACTION 97-00538-AH-L.
September 20, 2000.
Andrew W. Redd, Esq., and William F. Addison, Esq., Alabama Department of Corrections.
REPORT AND RECOMMENDATION
Plaintiff, an Alabama prison inmate proceeding pro se and in forma pauperis, filed a complaint under 42 U.S.C. § 1983. Plaintiff's action was referred to the undersigned Magistrate Judge 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. 14, 25 50) and Plaintiff's Motion for Summary Judgment against Defendants (Doc. 52) and affidavits in support thereof (Docs. 53, 54, 55 and 56). It is recommended that Defendants' motion for summary judgment be granted and that this action be dismissed with prejudice.
Plaintiff filed his complaint pursuant to 42 U.S.C. § 1983 on June 13, 1997 alleging excessive force and failure to protect and demanding $250,000.00 actual damages, $250,000.00 punitive damages, $50,000.00 nominal damages and injunctive relief (Doc. 1). Plaintiff filed his amended complaint on September 18, 1997 (Doc. 6). Defendants filed their special report on, December 31, 1997 (Doc. 14) and their supplement to the special report on May 18, 1998 (Doc. 25). Defendants answered the complaint on June 22, 1998 and raised the defenses of qualified immunity, failure to state a claim upon which relief can be granted and failure to state a claim upon which relief pursuant to 42 U.S.C. § 1983 can be maintained in that part or all of the claim was based on the theory of respondeat superior, immunity under the Eleventh Amendment. . (Doc. 29). Defendants then moved this Court for a stay of discovery (Doc. 30) and filed a Motion for Protective Order (Doc. 32). An Order staying discovery was entered on August 20, 1998 (Doc. 33). An order was entered on May 26, 2000 wherein the Defendants' special report, supplemental special report and answer were converted to a motion for summary judgment (Doc. 50). 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 (Doc. 50). The Plaintiff responded by filing a motion for summary judgment supported by affidavits which were sworn to before a notary public under penalty of perjury by the affiants (Doc. 52, 53, 54, 55 56). However, Plaintiff's motion for summary judgment (Doc. 52) is not notarized nor sworn to by the Plaintiff for the truthfulness of the statements he makes therein. Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir.), cert. denied, 475 U.S. 1107, 106 S.Ct. 1513, 89 L.Ed.2d 912 (1986); Dickinson v. Wainwright, 626 F.2d 1184, 1185 (5th Cir. 1980). Therefore, Plaintiff's unsworn statements in his motion do not constitute evidence that the Court may consider on summary judgment and that could be deemed to create a genuine issue of material fact.
Plaintiff's complaint and amended complaint were signed under penalty of perjury and therefore are, being treated by the Court as affidavits. 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 Sherriff'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; See also Bennett v. Parker, 898 F.2d 1530, 1532 (11th Cir. 1990).
III. Complaint as Amended (Docs. 1 6) .
A. Allegations against Warden Johnson
Plaintiff alleges that Warden Willie E. Johnson conspired with Correctional Officer I Jesse Warner as a matter of policy, custom and/or practice to allow Warner to leave his post without relief. Plaintiff alleges that allowing Warner to leave his post without relief exhibited deliberate indifference to the security and protection of the Plaintiff. He also alleges Johnson failed to discipline Warner for leaving his post and thus acquiesced in the misconduct. He alleges Johnson knew or should have known that the policy, custom, and/or practice of allowing the officers to leave their post without relief would "with a high degree of probability, eventually cause a constitutional injury to an inmate, such as the Plaintiff causing Plaintiff to suffer irreparable injuries." He also alleges Johnson failed to have trained correctional officers assigned to guard dormitory four on the night of December 3, 1996. Plaintiff alleges that the actions of Johnson deprived him of the right to be free from lack of security, excessive force and cruel and unusual punishment.
B. Allegations against Correctional Officer I Jesse Warner
Plaintiff alleges that Warner left his post at dormitory four to relieve another officer for a break. He was away from his post for approximately fifty minutes during which time inmate Lorenzae Lafitte initiated an attack on the Plaintiff. He alleges Warner knew or should have known that such a custom, practice or policy would cause constitutional injury to an inmate. He also alleges that Warner's leaving his assigned post without relief constitutes deliberate indifference which resulted in a substantial risk of harm in violation of the Plaintiff's constitutional rights. Plaintiff alleges that Warner's acts violated the Eighth and Fourteenth Amendments for failing to provide security and protection of the Plaintiff.
C. Allegations against Correctional Officer I Curtis Crook
Plaintiff alleges that Crook unnecessarily struck him with a nightstick while stopping the attack and that this blow constitutes the use of excessive force in violation of the Eighth and Fourteenth Amendments. Plaintiff states that at the time he was struck by Crook, he was on his knees on the floor and was being pulled away from Lafitte by another inmate. He alleges that Crook struck him in the area of the head wound he received from Lafitte. He also alleges that after Crook struck him, he tried to hit again because the Plaintiff was still armed with a knife at that time. Plaintiff alleges this violation of his constitutional rights caused him to suffer irreparable injuries. Plaintiff stated that he received a cut to the forehead and a superficial scratch on his right hand, both from Lafitte. He also alleges that he has constant headaches and dizziness caused by the blow with the nightstick.
D. Allegations against Correctional Officer Supervisor Billy H. Dorriety
Plaintiff alleges that Dorriety ordered Warner to leave his assigned post without relief. He alleges that Dorriety was aware of the policy, practice and/or custom of officers leaving their posts without relief and did nothing to prevent it. Plaintiff alleges that Dorriety's actions constitute lack of security in violation of the Eighth and Fourteenth Amendments and that Dorriety acted with deliberate indifference to Plaintiff's constitutional rights, and this deliberate indifference caused him to suffer irreparable injuries.
E. Allegations against Psychologist II James Corbitt
Plaintiff alleges that Corbitt who is employed at Fountain, is responsible for the placement of Lafitte in population at Fountain and that he allowed Lafitte to be present at Fountain without adequate psychiatric care. He alleges that Corbitt knew or should have known that allowing Lafitte, a mentally ill person, in population constituted deliberate indifference to Plaintiff's constitutional rights and would cause Plaintiff to suffer irreparable injuries. Plaintiff stated that he received a cut to the forehead and a superficial scratch on his right hand, both from Lafitte. He also alleges that he has constant headaches and dizziness caused by the blow from the nightstick when Crook was breaking up the assault. Plaintiff alleges that Corbitt violated the Eight and Fourteeth Amendments by allowing Lafitte in general population. F. Allegation of Damages
Plaintiff filed a Motion for Pleading Special Matters on May 4, 1999 wherein he included as an exhibit to his motion a copy of a document entitled "Close Mental Health Monitoring Data" (Doc. 41). In this document, Corbitt described Lafitte's mental health problems, past violent behavior, precautions to be taken and situations in which to contact Corbitt. (Doc. 41, page 4). Defendant responded and argued that the document was generated two months after the incident which is the basis of this lawsuit (Doc. 43). Upon consideration, the Magistrate Judge denied the motion finding that the document was inapposite to the case at hand because it was generated two months after the incident (Doc. 44). Plaintiff filed a Motion for Objection to the Magistrate Judge's Order (Doc. 45). His objection was treated as an appeal and was denied by Senior United States District Judge Alex T. Howard, Jr., on August 18, 1999 (Doc. 47).
Plaintiff alleges that because of the knife wound to his forehead he received from Lafitte and the blow to his forehead he received from Crook, he suffers from irreparable injuries of dizziness and headaches regardless of the medical treatment he has received and he suffers from extreme mental distress as result of the attack by Lafitte (Doc. 1, 6).
II. ALLEGATIONS OF FACT
A. Plaintiff's Allegation of Facts
Plaintiff alleges that on December 3, 1996, from approximately 1:50 a.m. until 2:25 a.m., he was assaulted by another inmate, Lorenza Lafitte. Plaintiff states that the incident occurred when Officer Warner left his assigned post in dormitory four at 1:35 a.m. Specifically, the Plaintiff avers the following facts: Plaintiff was sitting on his assigned bed writing a letter and inmate Shawn Stone was leaning against the wall between the beds while talking to inmate Herbert Creel. Lafitte approached Stone thus coming between Plaintiff and Stone. Lafitte deliberately hit Stone very hard on the chest and told him that he was going to kill him when he went to sleep. Stone asked Lafitte why he had hit him and questioned what he was talking about. Lafitte did not respond and walked back to his bed. Plaintiff then asked Stone why Lafitte had hit him in the chest. Lafitte overheard the conversation and walked back toward Plaintiff and looked at Plaintiff and Stone without speaking. Plaintiff asked Lafitte why he had hit Stone for no reason. Lafitte did not answer. Lafitte then went to the bathroom for about five minutes. He returned and asked Plaintiff if Stone was his boy. Plaintiff responded that Stone was not his boy and that he was never a boy to his knowledge. Shortly after this conversation, Lafitte cut Plaintiff on the hand with a razor blade and told Plaintiff to stay out of his business whenever he spoke to Stone. Plaintiff responded "alright" and Lafitte returned to his bed area. Plaintiff noticed that Stone was scared and Stone left saying he was going to the bathroom. Plaintiff saw Lafitte remove something from under his bed. Lafitte walked toward Plaintiff's bed alley with both hands behind his back. He then tried to stab the Plaintiff with two knives, one in each hand.
Plaintiff states that the time was now approximately 1:50 a.m.. He defended himself but not before Lafitte cut him above his right eye. A fight ensued wherein Plaintiff took one of the knives from Lafitte and ran to the front of the dormitory. Lafitte chased Plaintiff while continuing to try to stab him. Plaintiff turned around and ran and then ran again to the front with Lafitte still chasing him with a knife. Lafitte overtook the Plaintiff at the front entrance. Plaintiff continued to defend himself and in so doing, they fell to the floor and struggled until the correctional officers arrived at 2:25 a.m.. (Doc. 1, 6).
During the break up of the fight, Correctional Officer I Curtis Crook hit the Plaintiff with a baton on his forehead in the area of his bleeding cut and Plaintiff blacked out. Plaintiff also stated that his cut was bleeding into his eyes. In his complaint, Plaintiff stated that when he regained consciousness, inmate Charles Varner was pulling him backward, away from Crook who was trying to hit him again because Plaintiff was still armed with the knife. Plaintiff stated he was still on his knees on the floor during this time (Doc. 1).
However, in his affidavit submitted in response to the motion for summary judgment, Plaintiff stated the following: When he regained consciousness, Varner was pulling Lafitte off of him and Correctional Officer I Paul Daniel tried to put his foot on Plaintiff's hand that held the knife but Plaintiff pulled his arm away and tried to stand up. Moreover, that he could not respond to Crook because of the blow to his head. Furthermore, Varner was also behind him, pulling him back from Crook who was trying to hit him again with the nightstick (Doc. 53). In both the complaint and the affidavit, Plaintiff alleges that Crook had enough time to take the knife from him while he was unconscious and should not have attempted to hit him again. (Doc. 1, Doc. 53).
Plaintiff further alleges that during the time that Lafitte was assigned to dormitory four he had exhibited strange behavior and had been involved in fights with other inmates when correctional officers were not present and had threatened another inmate. Also, that Lafitte was placed in Management Problem Status after this incident and that while there he started a fight with another inmate. Moreover that Lafitte has received mental health treatment from the prison psychologist at Fountain. (Doc. 1, 6, 53).
Inmate Stone stated in an affidavit that at approximately 1:35 a.m. on December 3, 1996, he was standing between his bed and Plaintiff's bed talking to Creel. Plaintiff was on his bed writing a letter. Lafitte approached Stone, hit him hard in the chest and threatened to kill him when he went to sleep. Stone asked Lafitte why and what was he talking about. Lafitte walked back to his bed without a response. Plaintiff then asked Stone why Lafitte had hit him and Lafitte overheard the conversation. Lafitte then walked toward Plaintiff and Stone and looked at them without speaking. Plaintiff asked Lafitte why he hit Stone, but Lafitte was silent. Lafitte went to the bathroom and returned approximately five minutes later. He approached Plaintiff and asked if Stone was his boy. Plaintiff responded by saying that he was not and that to his knowledge Stone was never a boy. Lafitte then cut Plaintiff on the hand and told him to stay out of his business whenever he spoke to Stone. Lafitte returned to his bed and Stone went to the bathroom. When he returned he saw Lafitte at Plaintiff's bed trying to stab him and he saw Lafitte cut Plaintiff above his right eye. Plaintiff tried to defend himself and ran toward the front of the dormitory with Lafitte in pursuit. Stone stayed at his bed because the lights were off and it was dark (Doc. 54).
Stone stated that for approximately fifty minutes, from 1:35 a.m. until 2:25 a.m. there were no correctional officers present in dormitory four. When the lights came on, Stone went to the front of the dormitory and saw Lafitte on top of Plaintiff. He stated that when several correctional officers were breaking up the fight, Crook hit Plaintiff on his wounded forehead with his guard stick and Plaintiff blacked out. He had blood in his eyes when he regained consciousness. Varner was behind Plaintiff pulling him back from Crook who was trying to hit him again because Plaintiff was still armed with the knife. Stone stated that Crook had enough time to get the knife from Plaintiff while Plaintiff was unconscious (Doc. 54).
Stone also stated that Lafitte had exhibited strange behavior every since his assignment to dormitory four, that he started fights with other inmates and that he was treated at Fountain for mental illness (Doc. 54).
Inmate James Williamson stated in an affidavit that on December 3, 1996 at approximately 1:50 a.m., he heard a loud noise caused by a steel bed moving on a concrete floor. He saw Lafitte at Plaintiff's bed trying to stab him with two knives. Lafitte cut Plaintiff in the forehead. Plaintiff took one knife from Lafitte and tried to defend himself. Plaintiff ran to the front of the dormitory with Lafitte in pursuit. Plaintiff turned around and ran and then ran again to the front with Lafitte still chasing him with a knife. Williamson ran to the bathroom to call an officer through the bathroom window because the lieutenant's office was across from the bathroom window at an angle. He could not see the entire office but he could not see any officers in the area visible to him. He called out for about three minutes. When he came out of the bathroom, Lafitte was on top of Plaintiff and they were still fighting. The officers came in to the dormitory. Crook hit Plaintiff with a nightstick, burst his wounded forehead and knocked him unconscious. Crook then tried to hit Plaintiff again. Crook ordered Plaintiff to drop the knife while Plaintiff was regaining consciousness (Doc. 55).
Williamson stated that for thirty minutes during the fight, there were no officers present in dormitory four. He also stated that he had seen Lafitte exhibit strange behavior, knew that Lafitte had started fights with other inmates and that he was being treated at Fountain for mental illness (Doc. 55).
Inmate Darryl Somerville stated in an affidavit that he woke from sleep at about 1:50 a.m. to go to the bathroom. He saw Lafitte with two knives trying to stab Plaintiff. They began to fight and Plaintiff took one knife away from Lafitte. Lafitte stabbed Plaintiff in the forehead above the right eye. Plaintiff ran to the front of the dormitory and was chased by Lafitte. Plaintiff defended himself as the fight continued. Plaintiff turned around and started running and then ran toward the front again. Lafitte pursued him with the knife. At the front of the dormitory, they "locked up" and fell to the floor while Plaintiff tried to defend himself (Doc. 56).
Somerville stated that he went to his bed to put on his pants, shirt and shoes with the intention of returning to stop the fight, but when he returned to the front of the dormitory, the lights came on and the officers came in. He stated that Crook hit Plaintiff in the forehead and then tried to hit him again while he was unconscious. Crook gave Plaintiff an order to drop the knife after he had hit Plaintiff and while he was regaining consciousness from the blackout (Doc. 56).
Somerville stated that for approximately thirty minutes during the fight, there were no correctional officers in the dormitory. He also stated that he had seen Lafitte exhibit strange behavior, knew that he had started fights with other inmates, and that he was being treated at Fountain for mental illness (Doc. 56).
B. DEFENDANTS' ALLEGATION OF FACTS
Warden Johnson stated in an affidavit as follows: Warner was assigned to dormitory four and Crook was assigned to dormitory three and that '[i]f either officer is absent from his assigned post the other is required to monitor both dormitories, which are located directly across from each other. This procedure provides a correctional officer with the ability to rove both dormitories." All correctional officers receive training at the Corrections Academy at Selma, Alabama and are certified under the Alabama Peace Officers Standards of Training. The officers must complete forty hours of annual training to maintain certification. Furthermore, Johnson states that the incident could have been prevented if the Plaintiff had notified the correctional officers when Lafitte cut Plaintiff's hand with a razor(Doc. 14, Exh. 1).
Correctional Officer Crook stated in an affidavit as follows: On December 3, 1996, at approximately 2:25 a.m. he was assigned to dormitory three. He heard Warner blow his whistle in dormitory four. He went to Warner's assistance and saw Lafitte and Plaintiff fighting in front of beds six and eight. He attempted to separate them, then saw that they were both armed with prison made knives. Plaintiff was attempting to stab Lafitte and would not obey Crook's instruction to stop. Crook then struck Plaintiff with his baton in order to prevent further injury to Lafitte. Lafitte was not trying to stab Plaintiff at that time. While the inmates were on the floor he took the knife from Lafitte and inmate Varner pulled Lafitte away from the Plaintiff. He grabbed Plaintiff by his right arm and tried to hold his arm down while another officer tried to put his foot on the Plaintiff's hand which held the knife. Plaintiff then pulled his arm away and attempted to stand up while still holding the knife. At that time, Crook reached around Plaintiff, grabbing him from behind, and took the weapon (Doc. 14, Exh. 2, Exh. 5).
A knife made from a half pair of scissors, which was six and one-half inches long, sharpened on both sides and tapered to a point was confiscated from Plaintiff by Crook. A knife made from a ten and one-half inch long piece of metal, sharpened on both sides and tapered to a point was confiscated from Lafitte by Crook. He noted that disciplinary action was taken on both Plaintiff and Lafitte for violation of rule thirty-four, fighting with a weapon. (Doc. 14, Exh. 2, Exh. 5).
Supervisor Dorriety stated in an affidavit as follows: Plaintiff was aware that Lafitte and Plaintiff were not getting along and that Plaintiff did not seek assistance from the officer assigned to the dormitory when Lafitte cut Plaintiff's hand with a razor. Warner was not ordered to leave his assigned post, but instead was in the hallway between dormitory three and four in order to relieve Crook for his break. Warner was monitoring both dormitories and was not absent from his post. Dorriety further stated that Plaintiff received a gash above his right eye and Lafitte received "three stab wounds in the back plus two small wounds also in the back and three stab wounds[,] a cut and a bruise on his chest and arms." The principal aggressor could not be determined but that the officers' incident reports and the medical reports do "not lend credibility to the Plaintiff's allegations" that he was not the aggressor. (Doc. 14, Exh. 3).
Psychologist Corbitt stated in an affidavit as follows: Lafitte had served five and one half years within the Alabama Department of Corrections before his arrival at Fountain on November 3, 1995. Lafitte's behavior had been excellent and Lafitte had received "three positive work reports, one letter of accomplishment for completing a library course" with "no disciplinary infractions." Furthermore, Lafitte's transfer to Fountain "was a positive move rewarding his good behavior for the five and one half years he had served to that point." Lafitte was interviewed by Corbitt on November 17, 1995 because of a "history of mental health problems he had experienced before incarceration." During this interview Lafitte showed no behaviors or mannerisms which would indicate a psychological problem and Corbitt found no treatment necessary. Moreover, four months after arriving at Fountain, Lafitte earned a custody reduction and for the next nine months, "exhibited a pattern of good behavior." He received the same privileges as other inmates in population. The incident involving the Plaintiff was the "first sign of misbehavior in the six and one half years" Lafitte had served. Therefore, although Lafitte had a history of mental health problems in his past, there was "no reason to suspect he was mentally unstable." Lafitte was transferred to Fountain at a status level which would allow him to be in general population and then was screened as a new arrival for mental health problems and would have been isolated if needed, but isolation was not required in regard to Lafitte. (Doc. 14, Exh. 4).
Correctional Officer Warner stated in an affidavit as follows: At the time of the incident he was assigned to dormitories three and four. At approximately 2:25 a.m., he was standing in the hallway in front of the lieutenant's office after relieving Crook for his break. He saw two inmates chasing each other in dormitory four at which time he ran to the grill gate and blew his whistle for backup. He went into the dormitory and found Plaintiff and Lafitte fighting between beds six and eight. He grabbed Lafitte on his right elbow and felt something warm. After grabbing Lafitte, who was on top of the Plaintiff, Warner was shoved aside by Varner who pulled Lafitte off of Plaintiff. Warner did not realize that the inmates were armed with knives. Warner also stated that Plaintiff was aware of the problem between Plaintiff and Lafitte but did not inform Warner or other security personnel. (Doc. 25, Exh.6, Exh.7)
The medical records submitted by the Defendants show that the Plaintiff received a cut to the forehead and a superficial scape on his finger. He was sent to the prison infirmary for treatment and observation and was placed in the main ward (Doc. 14, Exh. 5). Lafitte received seven stab wounds, a large hematoma on his right arm, and a cut in the center of his chest. He was sent to the prison infirmary for treatment and observation and placed in the isolation ward (Doc. 14, Exh. 5).
III. CONCLUSIONS OF LAW A. Summary Judgment Standards .
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.), 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, 106 S.Ct. at 2512. 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, 2 F.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)), modified on other grounds Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1019 n. 1 (11th Cir. 1994). 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." Id at 999 (quoting Anderson, 477 U.S. at 255, 106 S.Ct. at 2513 (citing Adickes, 398 U.S. at 158-159, 90 S.Ct. at 1608-09)). "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, 106 S.Ct. at 1356 (quotation marks and citation omitted).
Moreover, the non-movant bears "the burden of coming forward with sufficient evidence on each element that must be proved." Earley v. Champion Int'l Corp., 907 F.2d 1077, 1080 (11th Cir. 1990) (emphasis in original) (citation omitted). If "a party. . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial[,]" Rule 56(c) mandates that summary judgment be entered against the non-movant. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1980).
In order to state a claim under 42 U.S.C. § 1983, Plaintiff must establish that: "(1). . . the conduct complained of was committed by a person acting under color of state law; and (2). . . this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330-331, 106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1986). Additionally, in a § 1983 action, Plaintiff must establish a causal connection between the Defendants' actions, orders, customs, policies, or breaches of statutory duty and a deprivation of Plaintiff's constitutional rights in order to state a claim upon which relief may be granted. See Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986); Williams v. Bennett, 689 F.2d 1370, 1380 (11th Cir.), cert. denied, 464 U.S. 932, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983).
A supervisory official may be liable in a § 1983 action only if he or she participated in the wrongful act or there is a causal connection between a supervisor's act and the alleged deprivation. Post v. City of Fort Lauderdale, 7 F.3d 1552, 1560-61 (11th Cir. 1994), modified on other grounds, 14 F.3d 583 (11th Cir. 1994). In a § 1983 action, a supervisory official may not be held liable solely on the basis of his or her employee's acts. Fundiller v. City of Cooper City, 777 F.2d 1436, 1443 (11th Cir. 1985) (comparing the position of a supervisor to a municipality which may have liability imposed through its customs or policies, but not through employee's actions). See generally Monell v. Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978) (discussing municipal liability).
§ 1983 "'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Graham v. Connor, 490 U.S. 386, 393-394, 109 S. Ct. 1865, 1870, 104 L.Ed.2d 443 (1989) (quoting Baker v. McMollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694 n. 3, 61 L.Ed.2d 433 (1979)). The analysis of a claim brought under § 1983 thus begins by identifying the constitutional amendment which protects against the alleged deprivation. Id. at 394, 109 S.Ct. at 1870.
C. Fourth, Eighth and Fourteenth Amendments
As stated herein, Plaintiff alleged that Defendants failed to protect him from assault by another inmate and used excessive force in stopping the assault. In so doing, they have violated his rights under the Eighth and Fourteenth Amendments (Doc. 1, 6). 1. Failure to protect
Plaintiff has alleged a violation of the Fourth Amendment to the U.S. Constitution. However, the Fourth Amendment is not applicable to the facts of this case and will not be discussed.
The Eighth Amendment protects a prisoner from cruel and unusual punishments and thereby imposes a duty on officials to protect an inmate from attack by another inmate. Farmer, 511 U.S. at 832-33, 114 S.Ct. at 1976. However, not every injury inflicted by another inmate results from a violation of the Constitution. Id. at 834, 114 S.Ct. at 1977.
The Eighth Amendment is only violated by "[a] prison official's 'deliberate indifference' to a substantial risk of serious harm to an inmate[.]" Id. at 828, 114 S.Ct. at 1974. This standard requires first that the alleged deprivation be, objectively, "sufficiently serious." Id. at 834, 114 S.Ct. 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[.]'" Id. (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." Id. (citation omitted).
This standard also requires that the prison official be deliberately indifferent to the substantial risk of serious harm to the inmate. Id. In other words a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to the inmate's 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 837, 114 S.Ct. at 1979. This element of an Eighth Amendment violation is subjective. Id. at 839, 114 S.Ct. at 1980. It is not required that a prison official know "'precisely who will attack whom,' (citation omitted), but only that the prison official had subjective knowledge of a generalized, substantial risk of serious harm from inmate violence. (citation omitted.)" Hale v. Tallapoosa County, 50 F.3d 1579, 1583 (11th Cir. 1995) (quoting Farmer, 511 U.S. at 843, 114 S.Ct. at 1982). The inmate's failure to provide advance notice of an attack is relevant, but not dispositive. Id. (citing Farmer, 511 U.S. at 849, 114 S.Ct at 1984).
Furthermore, even if prison officials knew of a substantial risk of serious harm, they may be exonerated from liability,
if they responded reasonably to the risk, even if the harm ultimately was not averted. A prison official's duty under the Eighth Amendment is to ensure "reasonable safety," (citations omitted), a standard that incorporates due regard for prison officials' "unenviable task of keeping dangerous men in safe custody under humane conditions." (citations omitted) Whether one puts it in terms of duty or deliberate indifference, prison officials who act reasonably cannot be found liable under the Cruel and Unusual Punishments Clause.Farmer, 511 U.S. at 844-45, 114 S.Ct. at 1982-83.
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 § 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 (citing [ Farmer, 511 U.S. at 828, 114 S.Ct. at 1974], and LaMarca v. Turner, 995 F.2d 1526, 1535 (11th Cir. 1993), cert. denied, U.S. [1164], 114 S.Ct. 1189, 127 L.Ed.2d 539 (1994)). Each element must be proven in order to prevail on an Eighth Amendment claim. La Marca, 995 F.2d at 1535.
2. Excessive force
In addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force. (citation and footnote omitted) In most instances, that will be either the Fourth Amendment's prohibition against unreasonable seizures of the person, or the Eighth Amendment's ban on cruel and unusual punishments, which are the two primary sources of constitutional protection against physically abusive governmental conduct. The validity of the claim must then be judged by reference to the specific constitutional standard which governs that right, rather than to some generalized "excessive force" standard. See Tennessee v. Garner, supra, 471 U.S., at 7-22, 105 S.Ct., at 1699-1707 (claim of excessive force to effect arrest analyzed under a Fourth Amendment standard); Whitley v. Albers, 475 U.S. 312, 318-326, 106 S.Ct. 1078, 1083-1088, 89 L.Ed.2d 251 (1986) (claim of excessive force to subdue convicted prisoner analyzed under an Eighth Amendment standard).Graham, 490 U.S. at 395, 109 S.Ct. at 1870-71.
Upon conviction, the source of the protection against deliberate force which is excessive and unjustified is the Eighth Amendment. Id. (citing Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 1088, 89 L.Ed.2d 251 (1986)). "The unnecessary and wanton infliction of pain. . . constitutes cruel and unusual punishment forbidden by the Eight Amendment." Ingraham v. Wright, 430 U.S. 651, 670, 97 S.Ct. 1401, 1412, 51 L.Ed.2d 711 (1977). Thus, the use of excessive force against an inmate by a correctional officer may constitute cruel and unusual punishment in violation of the Eight Amendment. "An Eighth Amendment claim is said to have two components, an objective component, which inquires whether the alleged wrongdoing was objectively harmful enough to establish a constitutional violation, and a subjective component, which inquires whether the officials acted with a sufficiently culpable state of mind." Sims v. Mashburn, 25 F.3d 980, 983 (11th Cir. 1994) (citing Hudson v. McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 999, 117 L.Ed.2d 156 (1992)).
The objective component "is contextual and responsive to 'contemporary standards of decency.'" Hill v. Dekalb Regional Youth Detention Ctr., 40 F.3d 1176, 1186 (11th Cir. 1994) (citing Hudson, 503 U.S. at 9, 112 S.Ct. at 1000). The subjective component "follows from the principle that 'only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.'" Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 2323, 115 L.Ed.2d 271 (1991)). It is only when both objective and subjective components are met that a violation of the Eighth Amendment is found. Farmer, 511 U.S. at 834, 114 S.Ct. at 1977.
To meet the objective standard, the Plaintiff must establish that "the alleged wrongdoing was objectively 'harmful enough' to establish a constitutional violation." Hudson, 503 U.S. at 9. In the objective analysis under Hudson, "only those deprivations denying 'the minimal civilized measure of life's necessities' are sufficiently grave to form the basis of an Eighth Amendment violation.'" Hudson, 503 U.S. at 9 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991). Thus, not "every malevolent touch by a prison guard gives rise to a federal cause of action." Id at 9. The objective component of an excessive force claim "necessarily excludes from constitutional recognition de minimis uses of physical force." Id. at 9-10. " [D]e minimis uses of physical force, provided that the use of force is not of a sort 'repugnant to the conscience of mankind[,]'" are not within the scope of the Eighth Amendment. Id. at 10, 112 5. Ct at 1000 (quoting Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 1088, 89 L.Ed.2d 251 (1986) (internal quotation omitted). "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights." Id. at 9, 112 S.Ct. at 1000 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d. Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)).
The Hudson Court did not define " de minimis use of force" but suggested that the degree of injury received is at least relevant determining whether more than de minimis force was used. See 503 U.S. at 10 (blows causing bruising, swelling, loosened teeth and a cracked dental plate do not constitute a de minimis use of force). However, the Court rejected the argument that "serious" or "significant" injury is required to satisfy the objective component. Id. at 9. Moreover, the Court rejected the concept that any arbitrary quantum of injury is an absolute requirement of an excessive force claim, apparently out of concerns that certain forms of torture are capable of inflicting extreme pain without leaving any mark or tangible injury. See id. ("Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury.").
After Hudson, several courts have concluded that, except perhaps in cases where substantial pain (as from torture) is alleged, more than de minimis force cannot be found unless more than de minimis injuries were received. See Norman v. Taylor, 25 F.3d 1259, 1263 n. 4 (4th Cir. 1994); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). Other appellate cases have implicitly followed similar reasoning.
The following injuries have been held by courts of appeal to be too minor to support an excessive force claim: A bruised shoulder from being shoved into a wall, Markiewicz v. Washington, 1999 WL 196596 (7th Cir. 1999); a sore, bruised ear lasting three days, Siglar v. Hightower, 112 F.3d 191 (5th Cir. 1997); transitory back and shoulder aches of limited duration, Williams v. Dehay, 1996 WL 128422 (4th Cir. 1996); a 1.5 inch scratch on the back of the hand from handcuffs, Schoka v. Swinney, 1995 WL 251126 (9th Cir. 1995); a welt from a slap on the face, Riley v. Dotson, 115 F.3d 1159 (4th Cir. 1997); daily headaches (without treatment) from being hit with a water bucket, Lunsford v. Bennett, 17 F.3d 1574 (7th Cir. 1994); a sore and swollen thumb from being hit with keys, Norman v. Taylor, 25 F.3d 1259 (4th Cir. 1994).
But see the following cases where injuries have been held to be sufficient to support excessive force claims: Cuts scrapes and contusions to the face, head and body from a group beating, Gomez v. Chandler, 163 F.3d 921 (5th Cir. 1999); a broken finger Escobar v. Zavaras, 1998 WL 31403 (10th Cir. 1998); cuts, bruises, a swollen hand and a possible broken finger, Mitchell v. Maynard, 80 F.3d 1433 (10th Cir. 1996); permanent scarring and numbness from handcuffs, Davidson v. Flynn, 32 F.3d 27 (2d Cir. 1994)
To meet the subjective standard, the Plaintiff must establish that the Defendant acted with the mental state required by constitutional provisions at issue. Hudson, 503 U.S. at 8, 112 S.Ct. at 999. The core judicial inquiry is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Id. at 7. Campbell v. Sikes, 169 F.3d 1353, 1374 (11th Cir. 1999) (quoting Whitley, 475 U.S. 320-21, 106 S.Ct. 1085). The decisions in Hudson and Whitley delineate five factors which are relevant to this determination:
When a claim requires "proof of a wrongful motive," it may be preferable to begin summary judgment analysis by examining the proof of intent because "the immunity question. . . sometimes requires complicated analysis of legal issues." Crawford-El v. Britton, 523 U.S. 574 (1998).
(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 1375 (quoting Whitley, 475 U.S. 321, 106 S.Ct. at 1078).
Prison administrators, however, are to "be accorded wide-ranging deference in. . . [their] policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Id at 1374. Moreover,
Courts, in considering whether an official is entitled to judgment as a matter of law, must determine whether the evidence goes beyond a mere dispute over the reasonableness of a particular use of force or the existence of arguably superior alternatives. Unless it appears that the evidence, viewed in the light most favorable to the plaintiff, will support a reliable inference of wantonness in the infliction of pain under the standard we have described, the case should not go to the jury.Id. at 1375 (quoting Whitley, 475 U.S. 322, 106 S.Ct. at 1078) (emphasis in original).
D. Qualified Immunity .
In Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 1697 (1999), the Supreme Court held as follows:
A court evaluating a claim of qualified immunity "must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation." Conn v. Gabbert, 526 U.S. 286, [290], 119 S.Ct. 1292, 1295, [143] L.Ed. [399] (1999). This order of procedure is designed to "spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit." Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). Deciding the constitutional question before addressing the qualified immunity question also promotes clarity in the legal standards for official conduct, to the benefit of both the officers and the general public. See County of Sacramento v. Lewis, 523 U.S. 833, 840-842, n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).
Without a constitutional violation the Plaintiff can not prove the violation of a clearly established statutory or constitutional right of which a reasonable person would have known. "Government officials performing discretionary functions generally are shielded 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." Harlow v. Fitzgerald, 457 U. 800, 102 S. Ct. 2727, 2738, L.Ed.2d 396 (1982). The determination of whether a violation of a clearly established constitutional right has been alleged employs a fact-specific inquiry to ascertain whether "'there existed sufficient case law establishing the contours of [plaintiff's] constitutional rights [such] that the unlawfulness of the defendants' conduct would have been apparent to a reasonable official in the same circumstances. . . . If no such case law exists, then the defendants are entitled to qualified immunity.'" Sanders v. Howze, 177 F.3d 1245, 1250 (11th Cir. 1999) ( citing Belcher v. City of Foley, Ala., 30 F.3d 1390, 1395 (11th Cir. 1994) (quoting Nicholson v. Georgia Dept. of Human Resources, 918 F.2d 145, 147 (11th Cir. 1990)).
Further, "[w]hen considering whether the law is clearly established, the specific facts of the cases relied upon as precedent are important. The facts need not be the same as the facts of the immediate case but they do need to be materially similar. Public officials are not obligated to be creative or imaginative in drawing analogies from previously decided cases." Id. "For qualified immunity to be surrendered, pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances." Id. ( citing Lassiter v. Alabama AM University, Board of Trustees, 28 F.3d 1146, 1150 (11th Cir. 1994)).
The Eleventh Circuit Court of Appeals has held that the issue is "whether the defendants' conduct violated clearly established statutory or constitutional rights of which a reasonable [official] would have known. In judging the reasonableness of the defendants' actions, we consider not only the law established at the time of the relevant incident, but also 'the information possessed by the official at the time the conduct occurred.'" Lancaster v. Monroe County, 116 F.3d 1419, 1424-1425 (11th Cir. 1997) ( citing Suissa v. Fulton County, 74 F.3d 266, 269 (11th Cir. 1996) (citation omitted).
Government actors are usually entitled to qualified immunity in their individual capacity. Lassiter v. Alabama AM Univ., Bd. of Trustees, 28 F.3d 1146, 1149 (11th Cir. 1994) (citations omitted). It is the exceptional case where the government actor is not protected by qualified immunity. Id. "Unless a government agent's act is so obviously wrong, in light of preexisting law, that only a plainly incompetent officer or one who has knowing violated the law would have done such a thing, the government actor has immunity from suit.'" Id. (citing Malley v. Briggs, 475 U.S. 335, 341-43, 106 S.Ct. 1092, 1096-97, 89 L.Ed.2d 271 (1986)).
For qualified immunity not to be available to a governmental actor, "the law must have earlier been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in defendant's place, that 'what he is doing' violates federal law." Id. (citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)). The body of law that determines whether the right is clearly established is comprised of decisions from the United States Supreme Court, the Eleventh Circuit Court of Appeals, and the Alabama Supreme Court (if the Alabama Supreme Court has addressed an issue involving a federal right that has not been addressed by either of the preceding courts). Courson v. McMillian, 939 F.2d 1479, 1497-80 N.32 (11th Cir. 1991)
However, "[a] necessary concomitant to the determination of whether the constitutional right asserted by plaintiff is 'clearly established' at the time the defendant acted is the determination of whether the plaintiff asserted a violation of a constitutional right at all." Seigert v. Gilley, 500 U.S. 226, 232, 233, 235, 111 S.Ct. 1789, 1793, 1794, 114 L.Ed.2d 277 (1991) (finding that the defendant was improperly denied qualified immunity by the district court because plaintiff "failed not only to allege the violation of a constitutional right that was clearly established at the time of [defendant's] actions, but also to establish the violation of any constitution right at all"); accord County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 1714 n. 5, 140 L.Ed.2d 1043 (1998) (validating Seigert's approach).
IV. DISCUSSION 42 U.S.C. § 1983 provides judicial remedies to a Plaintiff who can prove that a person acting under color of state law committed an act that deprived the Plaintiff of a right, privilege, or immunity protected by the Constitution or laws of the United States. It is undisputed that the Defendants are government officials and that they were performing discretionary functions of their job, thus, acting within the scope of their discretionary authority when the acts occurred.
Section 1983 states that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage. . . subjects, or causes to be subjected, any citizen of the United States. . . to the deprivation of any rights. . . secured by the Constitution and laws, shall be liable to the party injured in an action at law. . . [or] suit in equity." 42 U.S.C. § 1983.
Defendants have raised qualified immunity as a defense (Doc. 14). Therefore, the inquiry begins with whether Plaintiff has alleged a deprivation of an actual constitutional right, and, if he did, whether that right was clearly established at the time of the incident, December 3, 1996. Plaintiff has alleged a violation of the Eighth Amendment prohibition against cruel and unusual punishment based upon Defendants failure to protect him from an inmate attack and use of excessive force in breaking up the attack. The determination as to whether Plaintiff's Eighth Amendment rights are violated is based upon the facts as presented to the Court on summary judgment. Cottrell, 85 F.3d at 1486 (observing "what is considered to be the 'facts' at the summary judgment stage may not turn out to be the actual facts if the case goes to trial, but those are the facts at this stage of the proceeding for summary judgment purposes").
The Court is not bound "to examine only the undisputed facts set out at the pleadings stage." Brown v. Cochran, 171 F.3d 1329, 1333 (11th Cir. 1999). Compare Cottrell, 85 F.3d at 1486 (qualified immunity analysis on summary judgment where the "district court draws the facts from the 'pleadings, depositions,. . . together with the affidavits, if any,' Fed.R.Civ.P. 56(c), construing the evidence from those sources in the light most favorable to the plaintiff"), with Williams v. Alabama State University, 102 F.3d 1179, 1182 (11th Cir. 1997) (qualified immunity analysis on a motion to dismiss where the court accepts 'all the well-pleaded facts in the complaint as true and draw[s] all inferences in plaintiff's favor"). Accord Harbert Int'l Inc. v. James, 157 F.3d 1271, 1274 (11th Cir. 1998).
A. Defendants Johnson, Warner and Dorriety
Plaintiff alleges that Warner, Dorriety and Johnson were deliberately indifferent to his safety needs when Warner was ordered by Dorriety to leave his post and that Johnson is liable because he acquiesced in this action.
Specifically, Plaintiff alleged that Warner was not at his post at dormitory four for approximately fifty minutes, from 1:35 a.m. until 2:25 a.m., on December 3, 1996 when the assault occurred (Doc. 1, 6, 53, 55) and that he knew or reasonably should have known that his absence created a substantial risk of serious harm. Warner disputes this allegation, stating that he was on his post which was to monitor both dormitories three and four (Doc. 25, Exh. 6). In his incident report Warner states that at 2:25 a.m. he was "standing in the hall in front of the lieutenant's office after relieving [Crook] from his break." (Doc. 25, Exh. 7). Johnson states that Warner was assigned to dormitory four but that Warner could watch dormitory three while Crook was on break. Johnson also stated that the dormitories were directly across from each other and could be monitored by one officer. (Doc. 14, Exh.1).
In his affidavit, Williamson stated that at 1:50 a.m. he saw Lafitte and Plaintiff fighting. He stated that there was no officer in dormitory four so he went to the bathroom window to call an officer. According to his statement, the lieutenant's office is right across from the dormitory four bathroom at an angle, and in the small part of the office that he could see, there were no officers present. He stated that he called for about three minutes. When he came out of the bathroom, he saw Lafitte on top of Plaintiff and then the officers entered. (Doc. 55).
In his affidavit, Johnson stated as follows: "Plaintiff's allegations are not true. During the incident referred to in this complaint Defendant Warner was assigned to Dormitory #4 and Defendant Crook was assigned to Dormitory #3. If either officer is absent from his assigned post the other is required to monitor both Dormitories, which are located directly across from each other. This procedure provides a correctional officer with the ability to rove both Dormitories." (Doc. 14, Exh. 1).
Dorriety stated that Warner was not ordered to leave his assigned post, but instead was in the hallway between dormitory three and four in order to relieve Crook for his break. Dorriety asserts that Warner was monitoring both dormitories and was not absent from his post. (Doc. 14, Exh. 3)
Also, the Defendants point out that the Plaintiff did not inform any correctional officer or supervisor that he and Lafitte had had an earlier confrontation during which Lafitte had cut his arm with a razor blade, nor did he seek medical treatment for the cut, nor ask to be moved. Plaintiff does not dispute this assertion.
In order to overcome Defendant's motion for summary judgment the Plaintiff must present sufficient evidence to show that at least there is genuine dispute regarding (1) whether a substantial risk of harm existed; (2) whether the Defendants were deliberately indifferent to it; and (3) whether their deliberate indifference caused the attack. Hale, 50 F.3d at 1582. To do so, the Plaintiff needs to present evidence that the officer knew of and disregarded an excessive risk to his health or safety. That is, the officer must both be aware of the facts from which to draw the inference that a substantial risk of serious harm exists, and he must also draw the inference. Hale at 1583. There is not sufficient evidence that Warner knew or had reason to know that there was a substantial risk that Lafitte would attack Plaintiff and cause serious harm or that a substantial risk for violence existed at the time. Warner, Johnson and Dorriety have each stated that the attack could have been avoided if Plaintiff had notified an officer of the initial altercation between Lafitte and Plaintiff. There is no evidence presented that Plaintiff tried to inform any correctional officer that Lafitte had initially cut him with a razor blade. Notably, although Plaintiff claims that Lafitte had mental problems and had been involved in other fights, he presents no evidence which suggests that Warner, Dorriety or Johnson were aware of this behavior.
The defendant offered evidence that Lafitte was involved a fight on January 13, 1997 and that a prison fight occurred at the institution on March 26, 1997. Since both of these incidents occurred after the December 1996 incident, which is the subject of this complaint, they are not relevant to whether Warner knew that an excessive risk of serious harm existed.
Plaintiff's evidence does not establish that a substantial risk of harm existed or that Warner was deliberately indifferent to it. Assuming for purposes of summary judgment, that Defendant Warner was not at his post when the incident occurred and that had he been the fight would not have occurred, the allegation standing alone indicates that Defendant Warner's action was at most negligent, but not deliberately indifferent to a substantial risk of serious harm. Liability can not be imposed in a § 1983 action for negligent acts. Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 663, 88 L.Ed.2d 662 (1986). Moreover, deliberate indifference is not established merely by alleging that a prison guard was not at his post. Hale, 50 F.3d at 1582 (failure of a guard to make a round when the assault occurred was "insufficient to support the level of deliberate indifference and causal connection necessary to hold [the guard] personally responsible.").
The undersigned finds that the Plaintiff has failed to establish with sufficient evidence the elements of an Eighth Amendment claim under § 1983 in regard to the failure of Warner to protect him from assault. Parratt, 451 U.S. at 535, 101 S.Ct. at 1913 (holding that an essential element of a § 1983 action is a violation of "rights, privileges, or immunities secured by the Constitution or laws of the United States"). Warner's qualified immunity defense is therefore well taken. Summary judgment is due to be granted Warner. Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552.
Plaintiff has also failed to establish a constitutional claim against Defendants Johnson and Dorriety. Plaintiff alleges that Johnson knew that the officers left their posts without replacement, that he failed to have trained officers on duty, and that the lack of training and failure to stay at the post caused his attack to occur. Plaintiff alleges that Dorriety conspired with Warner in that he allowed Warner to leave his post at dormitory four and thus caused Warner's failure to be present in the dormitory when Plaintiff was assaulted. Plaintiff alleges that Dorriety and Johnson were aware that the correctional officers, through pattern, custom and practice, routimely left dormitories unguarded. This claim seeks to impose liability on Dorriety and Johnson for the acts or omissions of their subordinate, Warner.
In a § 1983 action, a supervisor may not be held liable solely on the basis of his employee's acts. Fundiller v. City of Cooper City, 777 F.2d 1436, 1443 (11th Cir. 1985) (comparing the position of a supervisor to a municipality which may have liability imposed through its customs or policies, but not through employees' actions); see generally Monell v. Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978) (discussing municipality liability). In order to state a § 1983 claim against a supervisor for failure to supervise, a plaintiff "must present some evidence that the [defendant] knew of a need to train and/or supervise in a particular area and the defendant made a deliberate choice not to take any action[,]" that this failure to train and/or supervise constitutes a custom or policy, and that the failure to train and/or supervise was the moving force behind the deprivation of a constitutional right. Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998); see City of Canton, Ohio v. Harris, 489 U.S. 378, 385, 389, 109 S.Ct. 1197, 1203, 1205, 103 L.Ed.2d 412 (1989); McKinney by McKinney v. DeKalb County, Ga., 997 F.2d 1440, 1443 (11th Cir. 1993). In other words, a supervisory official can only have liability imposed if he was personally involved in a constitutional deprivation or if his custom or policy caused the constitutional deprivation. Geter v. Wille, 846 F.2d 1352, 1354 (11th Cir.), cert. denied, 488 U.S. 1043, 109 S.Ct. 870, 102 L.Ed.2d 974 (1989); McLaughlin v. City of LaGrange, 662 F.2d 1385, 1388 (11th Cir.), cert. denied, 456 U.S. 979, 102 S.Ct. 2249, 72 L.Ed.2d 856 (1982).
The Court has found that there was no violation of Plaintiff's Eighth Amendment rights based on the actions of Warner because no evidence was offered to show that Warner knew of or was deliberately indifferent to a substantial risk of harm to the Plaintiff. Plaintiff's claims against Dorriety and Johnson are that they either ordered Warner to leave his post or concurred in that action. Unlike the plaintiff in Hale, Plaintiff has offered no evidence of prior incidents which would suggest that Dorriety or Johnson knew of a substantial risk of harm. Hale at 1583 ("Hale produced evidence that inmate-on-inmate violence occurred regularly when the jail was overcrowded, as it was during May 1990 and the two preceding years. Moreover, the evidence indicated that the violence was severe enough to require medical attention and even hospitalization on occasion.") Moreover, the Plaintiff has failed to present sufficient evidence to support the claim that Johnson or Dorriety knew of a substantial risk of harm in allowing Warner to leave his post for short intervals or that they were deliberately indifferent to the risk. Accordingly, the Court finds Plaintiff's evidence insufficient to for a jury to reasonably find that Defendants Dorriety or Johnson knew of a substantial risk of harm or that they was deliberately indifferent to it. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. Therefore, the Defendants' qualified immunity defense is well-taken and the undersigned determines that summary judgment is due to be granted to Defendants Johnson and Dorriety for Plaintiff's failure to establish an essential element of § 1983 claim. Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552.
B. Defendant Crook
Plaintiff has alleged that Crook used excessive force when he struck Plaintiff in the forehead with a baton while breaking up the fight between Lafitte and Plaintiff (Doc. 1, 6, 53). Crook stated that he struck the Plaintiff when he did not obey an order to drop a knife and to prevent further stabbings of Lafitte (Doc. 14, Exh. 2. Exh. 5). Plaintiff admits that he was holding a knife when Crook ordered him to drop it (Doc. 1, 6, 53). There were conflicting statements as to whether Crook ordered the Plaintiff to drop the knife and then struck him, or whether he struck Plaintiff and then ordered him to drop the knife (Doc. 1, 6, 14 — Exh. 2 5, 53, 55, 56). Plaintiff alleges that Crook tried to hit him again, and had plenty of time to take the knife from him while he was unconscious from the first blow (Doc. 1, 6, 53). Though Plaintiff alleged and his witnesses state that Crook tried to hit Plaintiff a second time, no evidence has been presented as to what event stopped the second blow from occurring, but it is undisputed that it did not occur.
In regard to the injury received from the blow, there was no evidence presented by Plaintiff to establish swelling or bruising of the forehead from the blow. The prison infirmary report which set forth the Plaintiff's injuries did not include a notation of bruising or swelling to the forehead, only the cut allegedly inflicted by Lafitte (Doc. 14, Exh.5). Plaintiff stated that he experienced dizziness and headaches from the blow, but there was no evidence submitted to substantiate medical treatment for these conditions. A conclusory allegation of a serious injury can be discounted. Bennett v. Parker, 898 F.2d 1530, 1533 (11th Cir. 1990) (finding that a conclusory allegation without supporting evidence is due to be discounted).
The undisputed facts establish that Crook entered the dormitory to break up the fight. It is not disputed that at the time Crook struck Plaintiff, Plaintiff had a knife in his hand and that the plaintiff was involved in an altercation. It is also not disputed that another officer tried to help Crook remove the knife from Plaintiff's hand by stepping on his arm, but Plaintiff pulled his arm free and tried to stand. The undisputed evidence establishes that Crook struck the Plaintiff once in the forehead either before or after ordering him to drop the knife and that Plaintiff did not drop the knife. and it had to be taken from him by Crook with the aid of another officer. Viewing the facts in the light most favorable to the Plaintiff and in context of the situation, Crook's actions were not objectively harmful enough to establish a constitutional violation. Hill, 40 F.3d at 1186 (citing Hudson, 503 U.S. at 9, 112 S.Ct. at 1000). The act must be viewed in context of contemporary standards of decency which are breached if the official used force in a malicious and sadistic manner to cause harm to an inmate. Crook stated that he struck the Plaintiff to prevent further stabbings and, as stated herein, Plaintiff admits that he had a knife in his hand when he was struck. The fact that alternative methods of removing the knife from the plaintiff may have worked is not sufficient to establish a constitutional claim. A core inquiry under the Eighth Amendment is "'whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously or sadistically to cause harm.'" Campbell, 169 F.3d at 1374 (quoting Hudson, 503 U.S. at 6-7, 112 S.Ct. at 999). The Plaintiff has failed to establish that Crook used force maliciously or sadistically to cause harm.
The medical report showed that Lafitte was stabbed approximately seven times in varying degrees of severity. He also had a bruise on his right arm. (Doc. 14, Exh. 5). The medical report showed that Plaintiff received one cut to his forehead and a superficial scratch on his right hand. There is no mention of bruising or swelling to his forehead. (Doc. 14, Exh. 5).
Further, in the objective analysis constitutional protection under the Eighth Amendment is extended to "only those deprivations denying 'the minimal civilized measure of life's necessities.'" Hudson, 503 U.S. at 9 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991). Therefore, not "every malevolent touch by a prison guard gives rise to a federal cause of action." Id. at 9. De minimis applications of physical force if not "'repugnant to the conscience of mankind[,]'" are excluded. Id. at 10, 112 S.Ct. 1000 (quoting Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 1088, 89 L.Ed.2d 251 (1986) (internal quotation omitted).
The undersigned finds that the Plaintiff has not presented sufficient evidence to survive summary judgment as to Crook. Plaintiff has failed to establish that Crook violated his rights under the Eighth Amendment, and thus has failed to establish an essential element of a § 1983 claim against Crook. Parratt, 451 U.S. at 535, 101 S.Ct. at 1913 (holding that an essential element of a § 1983 action is a violation of "rights, privileges, or immunities secured by the Constitution or laws of the United States"). Crook's defense of qualified immunity is well taken. Summary judgment is due to be entered for Crook on these claims. Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552 C Defendant Corbitt
The Plaintiff alleges that Corbitt violated his duty to protect the Plaintiff pursuant to the Eighth Amendment because he allowed Lafitte to be housed in population, failed to identify Lafitte as a mentally ill and violent inmate and failed to treat Lafitte as such. Plaintiff has alleged that Lafitte exhibited strange behavior in prison and had fought with other prisoners. Corbitt's affidavit states that at the time Lafitte was transferred to Fountain, he had no prior disciplinaries, had received several awards and improvements in custody status, and on interview, did not exhibit any characteristics or symptoms which indicated a need for treatment for mental illness or a change in custody status based upon mental illness. Corbitt did acknowledge that Lafitte had experienced mental illness in the past but not in the five and one-half years he had been in the system including his time served at Fountain since November 1995. Corbitt stated that his transfer to Fountain was a positive move rewarding his good behavior for the five and one half years he had served to that point.
As stated herein, a prison official need only have "subjective knowledge of a generalized, substantial risk of serious harm from inmate violence." Hale at 1583. The prison official must know of and disregard an excessive risk to inmate health or safety. Farmer 511 U.S. at 837, 114 S.Ct. at 1980. From review of the facts as alleged in the light most favorable to the Plaintiff, no evidence in the record shows that Corbitt had sufficient facts from which to infer that Lafitte posed an excessive risk to inmate safety and heath and then disregarded that risk. Plaintiff has failed to establish that Corbitt's actions created a substantial risk of serious harm to inmate health or safety. Further, he has failed to demonstrate that Corbitt exhibited a deliberate indifference to the substantial risk of serious harm to the Plaintiff of which Corbitt was aware and chose to disregard. Moreover, Plaintiff's allegations against Corbitt are conclusory. Bennett at 898 F.2d 1533, (finding that a conclusory allegation without supporting evidence is due to be discounted). The Plaintiff was unable to rebut Corbitt's statement with competent evidence. The only evidence presented regarding Lafitte's behavior which officials were made aware, occurred after the December 1996 incident. ( See, fn. 9).
The undersigned finds that the Plaintiff has not presented sufficient evidence to survive summary judgment as to Corbitt. Plaintiff has failed to establish that Corbitt violated his rights under the Eighth Amendment, and thus has failed to establish an essential element of a § 1983 claim against Corbitt. Parratt, 451 U.S. at 535, 101 S.Ct. at 1913 (holding that an essential element of a § 1983 action is a violation of "rights, privileges, or immunities secured by the Constitution or laws of the United States"). Corbitt's defense of qualified immunity is well taken. Summary judgment is due to be entered for Corbitt on these claims. Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552.
IV. Conclusion .
Based upon the foregoing reasons, it is recommended that Defendants' motion for summary judgment be granted and that this action be dismissed with prejudice.
DONE this 20th day of September, 2000.
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