Opinion
7 : 11-CV-88 (HL)
02-27-2019
ARNOLD JOHNSON, Plaintiff, v. CO II BOYD, et al., Defendants.
RECOMMENDATION
Presently pending in this action brought pursuant to 42 U.S.C. § 1983 is a Motion for Summary Judgment filed by Defendants Boyd, Johnson, Jones, Wiza, Yancy, Weston, and Howell. (Doc. 130). The Plaintiff filed this action on June 24, 2011, raising allegations of deliberate indifference to his safety while confined at Valdosta State Prison. (Doc. 1). Plaintiff alleges that Defendants failed to prevent and intervene in an attack by a fellow inmate. Id. In a Recommendation dated July 12, 2012, the undersigned recommended that Defendants' first Motion to Dismiss be granted and that the Complaint be dismissed. (Doc. 33). Specifically, the Court found that Plaintiff had failed to state claims of failure to protect and failure to intervene. Id. After the issuance of this Recommendation, Plaintiff filed a Motion to Amend. (Doc. 36). By Order dated August 16, 2012, the district judge adopted the Recommendation, and additionally denied Plaintiff's Motion to Amend, finding that the Motion to Amend was untimely and actually stated only a request for discovery. (Doc. 38).
Plaintiff appealed, and the Eleventh Circuit Court of Appeals ultimately affirmed the granting of Defendants' Motion to Dismiss, but reversed as to the denial of Plaintiff's Motion to Amend, finding that Plaintiff had not previously amended his complaint and should be given the opportunity to do so. (Doc. 50). Plaintiff filed an Amended Complaint on January 28, 2015. (Doc. 52).
Defendants filed a second Motion to Dismiss, which the Court granted. (Docs. 53, 69). The Eleventh Circuit vacated the dismissal in part, finding that the Plaintiff stated a claim under the Eighth Amendment with respect to his allegations concerning the officers' failure to intervene. (Doc. 88). Plaintiff filed a second Motion to Amend on March 16, 2015. (Doc. 57). The Court denied this motion on June 24, 2015, and the Eleventh Circuit upheld this denial on appeal. (Docs. 62, 88).
Defendants have now filed a Motion for Summary Judgment regarding the remaining failure to intervene claim. (Doc. 130). Plaintiff was notified of the filing of the Defendant's Motion for Summary Judgment, advised of his obligations under the law, and directed to respond thereto within thirty (30) days. Plaintiff has filed a response to Defendants' summary judgment motion. (Doc. 134).
Factual Background
In his Amended Complaint, the Plaintiff maintains that on June 23, 2009, he was sharing a segregation cell with inmate Hanley, who was trying to be moved. Hanley had repeatedly asked Defendant Boyd to move Hanley to another cell. (Doc. 52). Plaintiff alleges that inmate Hanley "had a well[-]documented propensity for violence on inmates, staff, and himself", and that Defendant Boyd and the prison staff were aware of these "tendencies". Id. at 5-6. On the day in question, Hanley began kicking a locker box in the cell he shared with Plaintiff, pulling it loose from the cell wall. Defendant Boyd came to the cell and then called for assistance. The other Defendants were outside of the cell "viewing and witnessing the whole incident", and Defendant Wiza was filming the incident. Id. at 6.
Inmate Hanley attempted to break the window in the cell door, and eventually broke a porcelain sink with the locker box, throwing pieces of the sink around the room and cutting himself with the sink pieces. Id. at p. 7. Inmate Hanley then approached Plaintiff, and struck Plaintiff, cutting Plaintiff in the face with a piece of the sink. Id. Plaintiff maintains that "[f]rom the time c/o II Boyd and staff arrived at the cell, and when they finally came in to intervene, at least 10 minutes had [elapsed]." Id.
Motion for Summary Judgment
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, the "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
As the parties moving for summary judgment, Defendants have the initial burden to demonstrate that no genuine issue of material fact remains in the case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir. 1991). The movant "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record, including pleadings, discovery materials, and affidavits, which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. "If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it." Fed. R. Civ. P. 56(e)(3). Defendants have supported their Motion for Summary Judgment with Plaintiff's deposition testimony, Defendants' declarations, and photographic evidence. (Docs. 130-3 - 130-11).
Defendants' declarations
In his declaration, Defendant Boyd testifies that officers are instructed not to intervene in inmate fights based on the danger presented. (Doc. 130-4, ¶ 12). Officers are to call and wait for assistance. Id. at ¶ 13. When Boyd observed inmate Hanley destroying fixtures in his cell, Boyd called over the radio to report the incident to his supervisor, and he thereafter waited for the supervisor to arrive. Id. at ¶ 16. Only the sergeant in charge, in this case Defendant Jones, could order the cell door opened. Id. at ¶¶ 17, 18. When Jones arrived, he told Hanley to place his hands in the door flap for handcuffing, but Hanley refused. Id. at ¶ 24. A CODE 1 was called when Hanley and Plaintiff began fighting. Id. at ¶ 26. The CERT officers arrived and extracted the inmates from the cell. Id.at ¶ 27.
Defendant Jones testifies in his declaration that as the sergeant supervising the segregation units on the day in question, he arrived at the cell when Hanley was kicking the locker, and Jones ordered Hanley to put his hands through the door flap for handcuffing. Hanley refused. (Doc. 130-5, ¶¶ 23-24). Jones determined that there were not a sufficient number of officers to allow for safe entry into the cell until the CERT officers arrived. (Doc. 130-5, ¶¶ 28, 33-34, 39). Prior to the arrival of the CERT officers, Defendants Boyd, Jones, and Wiza, along with another officer, were present, and Defendant Wiza left the scene at some point to retrieve a video camera. Id. at ¶¶ 33, 35. Defendant Jones states that the cell door window is small, at 5" by 14", and that you must stand very close to the window in order to obtain more than a minimal view. Id. at ¶¶ 7-9. Jones states that Plaintiff, whether sitting on his bed or on the floor of the cell, would have had little or no view to the outside of the cell through the cell door window. Id. at ¶¶ 10-11. Jones further states that officers are not armed, and are instructed not to intervene in inmate fights. Id. at ¶¶ 16, 18.
Defendant Johnson testifies in his declaration that, as the sergeant supervising the CERT officers, he received a CODE 1 on the date in question, indicating that inmates were fighting. (Doc. 130-6, ¶¶ 3, 9). He went directly to Plaintiff's cell, but it may have taken a few minutes for him to arrive as he was not nearby. Id. at ¶ 10. Upon arrival at the cell, Defendant Johnson took control of the incident location, observed Plaintiff and Hanley fighting in the cell, and, after ensuring there were enough CERT officers present, ordered the cell door opened. Id. at ¶¶ 13-15. CERT officers were not wearing protective gear, as they would ordinarily wear, as they "wanted to extricate Hanley from the cell as quickly as possible to protect Plaintiff." Id. at ¶ 16. Johnson further states that "[u]pon my direction, C.E.R.T. officers responded quickly and without delay to extricate Hanley from the cell." Id. at ¶ 22.
Defendant Yancey, a CERT officer, testifies in his declaration that he responded to the CODE 1 call, for which Defendant Johnson led the extraction operation. (Doc. 130-8, ¶¶ 3, 6-7). Yancy did not look into the cell, and did not see Hanley destroying property or attacking Plaintiff. Id. at ¶¶ 9-10.
Defendant Weston, a CERT officer, testifies in his declaration that he responded to the CODE 1 call, at which point Defendant Johnson led the extraction operation. (Doc. 137-2, ¶¶ 6-7). Defendant Weston did not look into the cell prior to the inmates being removed, and he did not witness the fight itself or Hanley's destruction of property. Id. at ¶¶ 11-12.
Defendant Wiza states in his declaration that he was told by Defendant Jones to video the incident, but that he did not video the disturbance inside the cell. (Doc. 130-7, ¶¶ 6, 10). Wiza left the scene at some point to retrieve the video camera. Id. at ¶¶ 7-8. Wiza did not see Hanley destroying property or attacking Plaintiff. Id. at ¶ 9.
Defendant Howell, another CERT officer, states in his declaration that he did not respond to the CODE on the day in question and thus was not present for the incident. (Doc. 130-10, ¶ 5).
Plaintiff's deposition testimony
In his deposition testimony, Plaintiff testifies that he was confined in the segregation unit at the time of the incident, which took place on June 23, 2009 between 9:30 and 10:30 in the morning. (Doc. 130-3, pp. 28-29, 45). Plaintiff states that the CERT members, Defendants Yancey, Weston, and Howell, were "there in an amount of seconds when the incident happened." Id. at p. 43. Defendant Boyd came to the cell doing a roster check, and Plaintiff's cellmate, inmate Hanley, asked Boyd to get Sergeant Jones for him. Id. at p. 53. Hanley began kicking on the cell door, Defendant Boyd came back to the cell and told Hanley that Sergeant Jones would see him after DR court. Id. at p. 54-55. Hanley resumed kicking the door, and Defendant Boyd called a code. Id. at p. 55. "[S]hortly after, all the officers appeared. . . You had a total amount of seven officers there within less than a minute." Id. at p. 56-57. Plaintiff further testifies that the second wave of responders, Wiza and Johnson, arrived two minutes later. Id. at p. 60.
Inmate Hanley began to kick the locker box in the cell. Id. at p. 59. "As all of the officers appeared at the door, I'm still sitting on my bed. Inmate Hanley steadily kicking on the locker box." Id. at p. 61. Hanley eventually pulls the locker box off of the wall, strikes the cell door window three (3) times, and then strikes the porcelain sink, breaking it apart. Id. at p. 66. After Hanley cut himself with portions of the sink and wiped his blood on the door and window, Plaintiff told him "you need to cut that out", at which time Hanley began swinging at Plaintiff. Id. Plaintiff states that between eight (8) to ten (10) minutes elapsed between when Hanley started kicking the locker box and Hanley taking a swing at Plaintiff, during which time Plaintiff was sitting on his bed and all of the Defendants were standing outside the door. Id. at p. 67.
Plaintiff and Hanley "tussle[d]", Plaintiff put Hanley in a "headlock", and Hanley then cut Plaintiff with a piece of the sink on the left side of Plaintiff's face. Id. at pp. 74, 76. Plaintiff tightened his grip on Hanley, and Defendant officers yelled for Plaintiff to let Hanley go. Id. at pp. 78-79. Defendants then entered the cell to break up the fight. Id. at p. 80. Plaintiff estimates that the time between when Hanley first swung at Plaintiff and officers entered the cell was approximately three (3) to four (4) minutes. Id. at p. 81.
In his response to Defendants' summary judgment motion, which consists of unsworn statements and incident reports concerning the events of June 23, 2009, Plaintiff continues to assert that the Defendants were deliberately indifferent to a serious risk of harm in failing to intervene in the altercation between Hanley and Plaintiff earlier. (Doc. 134). To the extent that Plaintiff continues to assert that Defendants are liable for an alleged failure to protect Plaintiff from harm, this claim has been dismissed, and the dismissal upheld on appeal.
Discussion
It is well settled that "[a] prison official's 'deliberate indifference' to a substantial risk of serious harm to an inmate violates the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825, 828-829 (1994). To establish a claim of deliberate indifference, Plaintiff must produce "sufficient evidence of (1) a substantial risk of serious harm; (2) the defendants' deliberate indifference to that risk; and (3) causation." Hale v. Tallapoosa County, 50 F.3d 1579, 1582 (11 Cir. 1995). "[A] prison official cannot be found liable under the Eighth Amendment . . . unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837. "[A]n official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment." Id.
"A prison official can be liable under the Eighth Amendment for failing to take reasonable steps to intervene on behalf of a victim of an ongoing assault by another inmate." Addison v. Arnett, 2015 WL 1519534 (S.D.Ga. 2015). The Eleventh Circuit has analyzed claims involving a prison official's alleged failure to intervene in an inmate-on-inmate attack under the deliberate indifference standard. See Marsh v. Butler County, Ala., 268 F.3d 1014 (11 Cir. 2001), abrograted on other grounds by Bell v. Twombly, 550 U.S. 544 (2007); Ledlow v. Givens, 500 F. A'ppx 910 ((11 Cir. 2012); Murphy v. Turpin, 159 F. A'ppx 945, 947 (11 Cir. 2005) ("[P]rison officials have a duty to protect prisoners from each other.").
Viewing the facts in the light most favorable to Plaintiff as the nonmoving party, Plaintiff was attacked by fellow inmate Hanley on June 23, 2009 while both inmates were locked in their cell. After Hanley began kicking the cell door, Defendant Boyd arrived at the cell to address Hanley's issues. Boyd left, Hanley resumed kicking the cell door, and Defendant Boyd returned and called a CODE, shortly after which all of the Defendant officers arrived at the cell. Thereafter, Hanley began kicking the locker box in the cell, broke the box off the wall, attempted to break the cell door window with the box, and then broke a porcelain sink in the cell. Hanley then cut himself with a piece of the sink, and smeared blood on the cell door and cell door window. Plaintiff told Hanley to stop his actions, Hanley swung at Plaintiff, and Hanley and Plaintiff began physically fighting, with Hanley cutting Plaintiff with a piece of the sink.
According to Plaintiff's deposition testimony, all of the Defendant officers were outside of the cell from the time Hanley began kicking the locker box until they entered the cell to break up the altercation. Eight (8) to ten (10) minutes passed between the time Hanley began kicking the locker box and Hanley swinging at Plaintiff, and three (3) to four (4) minutes passed between the time Hanley began swinging at Plaintiff and Defendants' entry in to the cell. According to Plaintiff's deposition testimony, during this time period, the Defendants were '[j]ust sitting back there just looking at this incident happen." (Doc. 130-3, p. 68). None of the Defendants issued any instructions to Hanley or to Plaintiff during this time period. Id. at p. 69.
In order to survive Defendants' summary judgment motion, Plaintiff must show "(1) that a substantial risk of serious harm existed, (2) that [Defendants] acted with deliberate indifference to that risk, and (3) a causal connection between that indifference and his injury." Woodyard v. Alabama Dep't. of Corr., 700 F. A'ppx 927, 933 (11 Cir. 2017), citing to Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1099 (11 Cir. 2014).
"As to the first element, a substantial risk of serious harm existed once the assault began". Woodyard, 700 F. A'ppx at 933. According to Plaintiff's version of events, all of the Defendants were present and witnessed the beginning of the physical altercation between Plaintiff and inmate Hanley, beginning with Hanley swinging at Plaintiff. The second element, deliberate indifference, is established by demonstrating that defendants had subjective knowledge of the risk of serious harm, and that they failed to reasonably respond to the risk. Farmer, 511 U.S. at 837-38.
A jury could conclude that Defendants were subjectively aware of the risk Plaintiff faced from inmate Hanley once the physical altercation began. Woodyard, 700 F. A'ppx at 933-34. According to Plaintiff, all of the Defendants were present, watching the attack, for three (3) to four (4) minutes. Additionally, Plaintiff testifies in his deposition that he called out to Defendants to stop the assault. (Doc. 130-3, p. 77). "[R]easonable jurors could infer that for some time [Defendants] merely watched the assault happen or ignored it." Id. at 934. Additionally, reasonable jurors could conclude that Defendants disregarded the risk posed to Plaintiff by Hanley, as they stood outside the cell door without entering the cell for three (3) to four (4) minutes with the attack ongoing. Id.
With the exception of Defendant Howell, genuine issues of material fact remain regarding whether Defendants were deliberately indifferent to a serious risk of harm posed to Plaintiff by his cellmate's attack. Defendant Howell, who Plaintiff mentions as being at the cell, has established in his declaration testimony that he was not present at the scene at all. (Doc. 130-10, ¶ 5). Plaintiff now admits that Defendant Howell was not present at the scene. (Doc. 134-2, p. 11).
Prior to the beginning of the physical altercation between Plaintiff and inmate Hanley, Plaintiff testifies that all of the Defendants were present beginning with Hanley's kicking of the locker box in the cell.
Q. . . . I want to talk with you about the sequence of events you just described beginning with Mr. Hanley starting to kick Locker Box 1 up to the point just before Mr. Hanley starts taking a swing at you, okay?
A. Yes, sir.
Q. So during that period of time, how much time elapses?
A. You're looking at - you're looking at anywhere between eight and ten minutes.
Q. For this entire eight-to ten - minute period of time, all of the defendants are standing outside our cell door, correct?
A. Correct.
Id. at p. 67.
According to Plaintiff's deposition testimony, all of the Defendants were present, waiting outside of his cell door, for the three (3) to four (4) minutes after inmate Hanley began to physically attack Plaintiff.
Q. All right. I want to talk to you a bit about the period of time that elapses from the moment that Mr. Hanley first starts striking you and the time at which the defendants enter the cell to break up the fight. Okay? And you already described that Mr. Hanley cut you with the sink.
A. Uh-huh.
Q. But before that, he had taken a swipe at you?
A. Yes.
Q. And the swipe was the first sort of physical assault -
A. Right.
Q. - that Mr. Hanley perpetrated against you. And then after the swipe, you know, you guys tussle, you know, over to the sink area, and you get him in a headlock, and all of this follows. But the first sort of aggression on Mr. Hanley's part towards you came when he took a swipe at you?
A. That's correct.
Q. So call that Point A.
A. Okay.
Q. And call Point B the time at which the defendants enter your cell and break up the fight. How much time elapses between Point A and Point B?
A. I would like to say anywhere from three to four minutes.
Id. at pp. 80-81.
"In situations in which an inmate seeks to hold officers liable for failing to intervene in an attack at the hands of another inmate, liability attaches only if the officer "was physically able and had a realistic chance to intervene and act in time to protect the inmate plaintiff." Taylor v. Williams, 2017 WL 1243164, *3 (S.D.Ga. 2017). The evidence presented by Defendants is insufficient to show that there is no genuine issue of material fact regarding whether Defendants had a reasonable opportunity to intervene. See Gholston v. Humphrey, 2016 WL 4487868 (M.D.Ga. 2016) (defendants failed to carry their burden at summary judgment by failing to present evidence as to whether they were present and had an opportunity to intervene in the use of force).
Plaintiff's deposition testimony establishes that Defendants "w[ere] in a position to take steps that could have averted the [] incident . . . but through deliberate indifference, failed to do so." Rodriguez v. Sec'y. for Dept. of Corrections, 508 F.3d 611, 622 (11 Cir. 2007). Plaintiff testifies that all of the Defendants stood outside his cell, and that Defendant Boyd or the Control Room could have unlocked the cell door, or ordered the cell door unlocked. Although Defendant Boyd testifies in his declaration that only the sergeant in charge, or Defendant Jones at one point, could "make the call to open a cell", all Defendants were present for at least three (3) to four (4) minutes. (Doc. 130-4, ¶ 17). Defendant Johnson testifies that he ultimately ordered the cell door be opened. (Doc. 130-6, ¶ 15). "Plaintiff has submitted evidence from which the trier of fact could find that Defendants were in a position to stop the assault before they did[; s]pecifically, . . . [that] the assault lasted up to [four] minutes . . . [and that] Defendants did not take any measures . . . while [Plaintiff] pleaded for help." Addison, 2015 WL 1519534 at *8.
To the extent that Defendants contend that they responded reasonably to the risk posed to Plaintiff by inmate Hanley, Plaintiff's deposition testimony sufficiently rebuts Defendants' showing and creates a genuine issue of material fact regarding whether Defendants' response was reasonable once the attack began. Id. (Plaintiff created genuine dispute of issue of material fact regarding Defendants' response to inmate fight and whether they were in a position to intervene; Plaintiff presented evidence that Defendants could have stopped assault prior to their actual intervention).
To the extent that Defendants dispute Plaintiff's sworn testimony regarding the timing of their arrival at Plaintiff's cell and the amount of time that elapsed between the beginning of the physical altercation between the inmates and Defendants' entry into the cell, "[t]he court may not weigh evidence to resolve a factual dispute, if a genuine issue of material fact is present, the court must deny summary judgment. Likewise, if reasonable minds could differ on the inferences arising from undisputed facts, then the court should deny summary judgment." Holifield v. Reno, 115 F.3d 1555, 1561 (11 Cir. 1997), internal citations omitted; abrogated on other grounds by Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).
A reasonable jury could find that Defendants observed the physical altercation between Plaintiff and inmate Hanley and were in a position to intervene but failed to do so, and thus summary judgment is inappropriate as to Plaintiff's remaining failure to intervene claim.
Qualified immunity
Defendants also contend that they are entitled to the protection of qualified immunity. "Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct." Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).
Inasmuch as qualified immunity is an affirmative defense, the "public official must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred." Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.2002). "To determine whether an official was engaged in a discretionary function," federal courts look to see whether the challenged actions "fell within the employee's job responsibilities." Crosby v. Monroe Cnty., 394 F.3d 1328, 1332 (11th Cir. 2004) (internal citation omitted).
Defendants contend that, as they are being sued pursuant to their duties as prison officers, this establishes that they were acting within their discretionary authority during the events in question. These "objective circumstances . . . compel the conclusion that [Defendants'] actions were undertaken pursuant to the performance of [their] duties and within the scope of [their] authority." Sims v. Metropolitan Dade County, 972 F.2d 1230, 1236 (11 Cir. 1992); see also Hagan v. Muscogee County Prison, 2008 WL 4664226 (M.D.Ga. 2008) (CDL) (defendant prison official was acting within his discretionary authority while supervising inmates). "[W]here . . . it is undisputed that government officials were acting within their discretionary authority, the burden is on the plaintiff to demonstrate that qualified immunity is not appropriate." Hicks v. Ferrero, 241 F. A'ppx 595, 597 (11 Cir. 2007).
"To [show that qualified immunity is not appropriate], the plaintiff must demonstrate (taking all the facts in the light most favorable to [him]) the following two things: (1) that the defendant violated [his] constitutional rights, and (2) that, at the time of the violation, those rights were clearly established". Gaines v. Wardynski, 871 F.3d 1203,1208 (11 Cir. 2017). Plaintiff has established, viewing all of facts in the light most favorable to him, that Defendants, other than Defendant Howell, violated a constitutional right.
To demonstrate that the law was clearly established, courts look to "either (1) earlier case law from the Supreme Court, this Court, or the highest court of the pertinent state that is materially similar to the current case and therefore provided clear notice of the violation or (2) general rules of law from a federal constitutional or statutory provision or earlier case law that applied with 'obvious clarity' to the circumstances, establishing clearly the unlawfulness of Defendants' conduct." Long v. Slaton, 508 F.3d 576, 584 (11 Cir. 2007). Thus, "in some cases, we may find that the right is clearly established, even in the absence of case law." Oliver v. Fiorino, 586 F.3d 898, 907 (11 Cir. 2009). See also Maddox v. Stephens, 727 F.3d 1109, 1121 (11 Cir. 2013) ("A right may be clearly established for qualified immunity purposes in one of three ways: (1) case law with indistinguishable facts clearly establishing the constitutional right; (2) a broad statement of principle within the Constitution, statute, or case law that clearly establishes a constitutional right; or (3) conduct so egregious that a constitutional right was clearly violated, even in the total absence of case law.") internal citations omitted.
The Eleventh Circuit has found that "our precedents have made clear, repeatedly, that the Constitution requires that prison officials take reasonable measures to protect the safety of the inmates. Any reasonable officer should have known that he could not, in keeping with that standard, delay for five minutes taking any action while one inmate assaulted another one." Woodyard, 700 F. A'ppx at 934. In Woodyard, the Eleventh Circuit relied on United States v. Lanier, 520 U.S. 259 (1997) for the principle that "a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question." United States v. Lanier, 520 U.S. at 271.
The Court finds that Defendants are not entitled to qualified immunity on Plaintiff's failure to intervene claim, as on the facts as presented by Plaintiff, it would be obvious to any reasonable officer that he could be held liable for violating the Constitution by failing to intervene. See Williams v. Scott, 433 F. A'ppx 801, 805 (11 Cir. 2011) (rejecting officer's argument that he was entitled to qualified immunity on plaintiff inmate's failure to intervene claim, as based on inmate's version of events officer watched another inmate beat him and cheered him on).
Conclusion
Genuine issues of material fact remain regarding Defendants' response to the danger presented by inmate Hanley's attack on Plaintiff, and whether they were deliberately indifferent to this serious risk of harm. Defendant Howell has established, and Plaintiff agrees, that Defendant Howell was not present at the scene during the incident. Accordingly, it is the recommendation of the undersigned that Defendants' Motion for Summary Judgment be DENIED as to Defendants Boyd, Johnson, Jones, Wiza, Yancy, Weston, and GRANTED as to Defendant Howell.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The District Judge shall make a de novo determination as to those portions of the Recommendation to which objection is made; all other portions of the Recommendation may be reviewed by the District Judge for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice."
SO RECOMMENDED, this 27 day of February, 2019.
s/ THOMAS Q. LANGSTAFF
UNITED STATES MAGISTRATE JUDGE asb