Opinion
Case No. 4:05cv8-RH/WCS.
July 28, 2006
REPORT AND RECOMMENDATION
This is a suit by a prisoner pursuant to 42 U.S.C. § 1983. Doc. 1. A special report was filed by Defendant Adams, doc. 25, and by court order entered on December 27, 2005, the report was construed as a motion for summary judgment. Doc. 26. Plaintiff, an inmate proceeding pro se in this case, was advised of his responsibility under Fed.R.Civ.P. 56 to oppose the motion. Id. Defendant filed a notice of supplemental authority (an unpublished opinion from the Eleventh Circuit), doc. 27, and Plaintiff responded with a document which contained insufficient evidence, see docs. 28, 29. Plaintiff was given additional time to submit his response to the summary judgment motion. Id. Plaintiff has filed a supplemental response to the summary judgment motion, doc. 30.
Although Plaintiff also submitted a document which was construed as an amended complaint, see docs. 9 and 10, Plaintiff proceeded with the initial complaint, doc. 1, and that is the version of the complaint served on the Defendant. Doc. 16.
Allegations of the complaint, doc. 1
Plaintiff alleges that he was assaulted by Defendant on June 28, 2004. Doc. 1, p. 7. He asserts that he was being escorted in handcuffs and leg shackles by Defendant and another officer. Id. He said Defendant Adams placed him inside a shower cell for a strip search. Id. He asserts that Defendant Adams pushed his head against the wall, causing a knot on the right side of his head. Id. He states he fell to the floor on his back. Id.
Legal standards governing a motion for summary judgment
On a motion for summary judgment, the Defendant initially has the burden to demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corporation v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2553-54, 91 L. Ed. 2d 265 (1986). If accomplished, the burden shifts to Plaintiff to come forward with evidentiary material demonstrating a genuine issue of material fact for trial. Id. An issue of fact is "material" if it could affect the outcome of the case. Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256, 1259 (11th Cir. 2004) (citations omitted). Plaintiff must show more than the existence of a "metaphysical doubt" regarding the material facts,Matsushita Electric Industrial Co., LTD. v. Zenith Radio Corporation, 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986), and a "scintilla" of evidence is insufficient. The Court must decide "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." Hickson Corp., 357 F.3d at 1260, quoting Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S. Ct. 2505, 2505, 91 L. Ed. 2d 202 (1986). All reasonable inferences must be resolved in the light most favorable to the nonmoving party. Watkins v. Ford Motor Co., 190 F.3d 1213, 1216 (11th Cir. 1999).
"Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Owen v. Wille, 117 F.3d 1235, 1236 (11th Cir. 1997), cert. denied 522 U.S. 1126 (1998), quoting Celotex, 477 U.S. at 324, 106 S. Ct. at 2553 (quoting Fed.R.Civ.P. 56(c), (e)). The nonmoving party need not produce evidence in a form that would be admissible as Rule 56(e) permits opposition to a summary judgment motion by any of the kinds of evidentiary materials listed in Rule 56(c). Owen v. Wille, 117 F.3d at 1236; Celotex, 477 U.S. at 324, 106 S. Ct. at 2553.
The Rule 56(e) evidence
Plaintiff submitted a document in opposition to Defendant's summary judgment motion. Doc. 30. The statements made in that document, by and large, merely claim that affidavits submitted in support of the Defendant's motion are false or contradictory. Id. Further, Plaintiff's statements are not under oath or under penalty of perjury and may not be considered in ruling on the summary judgment motion. FED. R. CIV. P. 56(e). Plaintiff's documentary evidence is the same as Defendant's documentary evidence.
Plaintiff's complaint, however, is verified and signed under penalty of perjury, as Plaintiff filed the complaint on the standard complaint form used by pro se litigants in this Court. Doc. 1, p. 8. Our circuit has treated a verified pleading as an affidavit on summary judgment if it otherwise satisfied the standards of FED. R. CIV. P. 56(e). See Gordon v. Watson, 622 F.2d 120, 123 (5th Cir. 1980); United States v. Four Parcels of Real Property in Greene and Tuscaloosa Counties in State of Ala., 941 F.2d 1428, 1444 n. 35 (11th Cir. 1991); Barker v. Norman, 651 F.2d 1107, 1114-1115 (5th Cir. 1981), citing Runnels v. Rosendale, 499 F.2d 733, 734 n. 1 (9th Cir. 1974);Fowler v. Southern Bell Telephone Telegraph Co., 343 F.2d 150, 154 (5th Cir. 1965), and Gordon v. Watson, supra. With the exception of Four Parcels of Real Property, 941 F.2d 1428, these cases were decided before the Supreme Court's decision in Celotex Corp., supra, that "Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves. . . ." 477 U.S. at 324, 106 S.Ct. at 2553 (emphasis added). Here, however, the allegations of fact in the complaint are simple, this is not a "shot-gun" complaint, Plaintiff is competent to testify to the events since he was there, and his version of the facts goes to the heart of his Eighth Amendment claim. Plaintiff's verified complaint, therefore, will be considered to be Rule 56(e) evidence.
A pro se plaintiff cannot defeat summary judgment by verification of his own conclusory allegations. Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984). Where a plaintiff uses a "shotgun" approach to litigation, the mere possibility that a factual dispute may exist will not defeat a "convincing presentation by the moving party." Id., citation omitted.
Most of the evidence to be discussed ahead has been presented by Defendants. The only evidence presented by Plaintiff is his complaint.
On June 28, 2004, Plaintiff was advised that he would receive a disciplinary report for committing an "obscene and profane act." Doc. 25, Defendant's exhibits B, E-4 While in the Medical Building, Plaintiff refused the "pre-confinement physical," was acting in a disorderly manner, and so was escorted out of Medical and to the Administrative Confinement (H-Dormitory) shower. Defendant's ex. E-2, E-4. Plaintiff was escorted to the administrative confinement wing by Defendant Adams and Correctional Officer Tran. Defendant's ex. C, D, and E1-3. Plaintiff continued to be disorderly, was "verbally abusive and physically active" while being escorted to confinement. Defendant's ex. E2, H1, and H5. As Plaintiff was placed in the shower cell to be searched, he entered the cell and turned around to face Defendant Adams. Defendant's ex. H1. Defendant's evidence is that when Defendant Adams bent down to remove Plaintiff's leg restraints when Plaintiff suddenly struck the right side of his head against the wall of the shower and then slumped to the floor. Id. Plaintiff "collapse[d] to the floor [of] his own power." Defendant's ex. H2A. As noted above, Plaintiff disputes this statement and contends Defendant pushed him into the wall, where he hit his head causing a knot on the right side of his head, and he fell to the floor. Doc. 1, p. 29.
As Defendant Adams tried to removed Plaintiff's leg restraints, Plaintiff starting kicking at the officers and, while still handcuffed, grabbed the pants leg of Defendant Adams and wrapped his legs around the legs of Officer Roe. Defendant's ex. D, E1, E2, and H1. Officer Roe managed to step out of Plaintiff's leg wrap, but Plaintiff refused several orders to let go of Defendant Adams's leg. Defendant's ex. E2, H1A, and H3A. Defendant Adams reached down with his right hand and bent Plaintiff's right index finger backwards until Plaintiff released his hold on the Defendant's leg. Defendant's ex. E2, E3, and H1A.
Plaintiff again banged his head several more times against the shower wall. Defendant's ex. E2, H2A. Defendant Adams and Officer Roe backed out of the cell while Plaintiff continued to kick his legs. Defendant's ex. E3, H1A, and H3A. Plaintiff stuck his right foot under the shower cell door. Id. Plaintiff was ordered to remove his feet, and after he complied, the cell door was secured. Defendant's ex. E3, H1.
Nurse Whitaker arrived to examine Plaintiff approximately 25 minutes after the incident. Defendant's ex. E4, ex. G, p. 1. Plaintiff complained "of pain on the right side of his head." Defendant's ex. G, H4. Nurse Whitaker examined Plaintiff, finding him alert and oriented, but she noted no apparent injuries. Defendant's ex. G1, H4. Plaintiff would not allow his vital signs to be taken and he was "very irritable about" the situation. Defendant's ex. G1. Plaintiff did not make any additional complaints concerning any injury to his head. Defendant's ex. G. Nurse Whitaker avers in her affidavit that if she "had observed any contusion, bleeding, swelling or other signs of injury, [she] would have noted those observation[s] in the Emergency Room Record and Diagram of Injury." Defendant's ex. H3-H4.
The Inspector General conducted an investigation concerning Plaintiff's allegations on July 12, 2005. Defendant's ex. F. The investigation was downgraded shortly thereafter for lack of any leads and because Plaintiff was refusing to cooperate in the investigation. Defendant's ex. F.
Plaintiff was issued a disciplinary report for "unauthorized physical contact" for this incident. Defendant's ex. C-1. In the ensuing disciplinary hearing, Plaintiff was found guilty, sentenced to 60 days in disciplinary confinement, and lost 60 days of gain time. Defendant's ex. A-6, C-1. The disciplinary proceedings have not been overturned. Ex. A-4.
Defendant's motion for summary judgment, doc. 25
Defendant presents four arguments in the motion for summary judgment: (1) that Plaintiff fails to establish a violation of his constitutional rights; (2) that Plaintiff fails to establish the existence of a physical injury; (3) Defendant is immune from damages to the degree he is sued in his official capacity; and (4) Plaintiff has not otherwise demonstrated his entitlement to monetary damages.
Analysis
While Plaintiff has presented a genuine dispute of material fact as to whether Defendant Adams pushed his head against the wall without provocation, he has not disputed any of the other evidence presented by Defendant. The court should not, however, sort out the evidence and adjudicate the Eighth Amendment claim.
Plaintiff alleged in the complaint that he received a disciplinary report concerning the events at issue in this case, but Plaintiff stated he did not lose gain time. That assertion was not true. Were it known from the outset that Plaintiff lost gain time in the disciplinary hearing, this case would never have been served.
The charge brought against Plaintiff was "unauthorized physical contact." Therefore, the events in question are undeniably intermingled with Plaintiff's Eighth Amendment claim. Since Plaintiff lost 60 days gain time as a result of the disciplinary report and that gain time has not restored, this case is barred. In Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 2372, 129 L. Ed. 2d 383 (1994), the Supreme Court held that a claim for damages that is related to a sentence or conviction that has not yet been reversed or invalidated is not cognizable under 42 U.S.C. § 1983. Heck, 114 S. Ct. at 2372. Heck has been extended and made explicitly applicable in the prison disciplinary setting. Edwards v. Balisok, 520 U.S. 641, 117 S. Ct. 1584, 137 L. Ed. 2d 906 (1997). In Balisok, the Supreme Court held that a "conviction" includes a finding of guilty in a prison disciplinary proceeding that results in a loss of gaintime, thus, affecting an inmate's period of incarceration. 117 S. Ct. at 1589. Therefore, based onHeck, the Court concluded that a claim for money damages resulting from defects in a prison disciplinary hearing which resulted in the loss of gain time credits is not cognizable under § 1983.
Conclusion
Accordingly, it is RECOMMENDED that since Plaintiff fails to state a claim upon which relief may be granted pursuant to Heck v. Humphrey, supra, the complaint be DISMISSED and the Clerk of Court be directed to note on the docket that this cause was dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
IN CHAMBERS at Tallahassee, Florida.
NOTICE TO THE PARTIES
A party may file specific, written objections to the proposed findings and recommendations within 15 days after being served with a copy of this report and recommendation. A party may respond to another party's objections within 10 days after being served with a copy thereof. Failure to file specific objections limits the scope of review of proposed factual findings and recommendations.