Cummings v. Harrison

695 F. Supp.2d 1263

Darrel CUMMINGS, Plaintiff, v. Warden Duffie HARRISON, et al., Defendants.

Case No. 4:07cv428-RH/WCS.

United States District Court, N.D. Florida, Tallahassee Division.

February 7, 2010.

Darrel Cummings, Mayo, FL, pro se.

Joe Belitzky, Tallahassee, FL, for Defendants.

ORDER DENYING SUMMARY-JUDGMENT MOTION

ROBERT L. HINKLE, District Judge.

This case is before the court on the magistrate judge's report and recommendation (document 115). No objections have been filed. Upon consideration,

IT IS ORDERED:

The report and recommendation is ACCEPTED and adopted as the court's opinion. The defendants' motion for summary judgment (document 93) is DENIED. The case is remanded to the magistrate judge for further proceedings.

REPORT AND RECOMMENDATION

WILLIAM C. SHERRILL, JR., United States Magistrate Judge.

Defendants Harrison, Durham, and Whiddon filed a motion for summary judgment on March 4, 2009. Doc. 93. Plaintiff, a pro se inmate in this civil rights action, was directed to file his opposition to the motion, doc. 96, and then granted an extension of time to do so. Docs. 106, 107. Plaintiff's response was timely filed, doc. 110, and the motion is ready for review.

An answer was separately filed by Defendant Fountain, doc. 111, who was belatedly added. See docs. 88, 96, 97, and 101. Discovery has been deferred as to Plaintiff's claims concerning Fountain until the motion for summary judgment has been adjudicated. See doc. 113. This report and recommendation concerns only the motion for summary judgment, doc. 93, and Plaintiff's response.

Allegations of the Fifth Amended Complaint, doc. 88

Plaintiff alleges that Defendant Whiddon falsely called on the prison radio that the Muslim inmates were "in an uproar in the dining hall." Doc. 88, p. 5. Defendant Whiddon then, allegedly, used excessive and unnecessary force against Plaintiff, throwing him into a wall. Id. Defendant Whiddon made numerous racial slurs and comments about Muslim inmates and attempted to prevent Plaintiff from obtaining medical treatment. Id., at 6.

Later, Defendant Whiddon threatened Plaintiff for submitting a grievance, and Defendant Harrison (the warden) ignored Plaintiff's grievances and refused to put him in protective custody. Id., at 7. Plaintiff further alleged that Defendant Harrison intentionally put Plaintiff into Defendant Whiddon's housing unit to permit retaliation. Id. Defendant Whiddon continued his threats against Plaintiff and issued Plaintiff false disciplinary reports. Id.

Defendant Durham intentionally caused physical harm to Plaintiff in retaliation for Plaintiff having complained about Defendant Whiddon. Id., at 7-8. On another occasion, Defendant Durham against caused physical injury to Plaintiff and then refused medical attention. Id., at 8. Durham allegedly fabricated an incident to justify the forced used on Plaintiff and Plaintiff was in fear for his life. Plaintiff claims that Defendant Whiddon put Plaintiff in segregation for over 305 days "as punishment for submission of this" lawsuit. Id., at 11.

Basis for Summary Judgment Motion, doc. 93

Each of the three Defendants have submitted affidavits which flatly deny Plaintiff's allegations of retaliation, verbal or physical abuse, and constitutional violations. Defendants contend that they are entitled to judgment as a matter of law on each claim brought against them.

Legal standards governing a motion for summary judgment

On a motion for summary judgment Defendants initially have 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 they do so, 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), if there is a genuine dispute as to those facts. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), cited in Ricci v. DeStefano, ___ U.S. ___, 129 S.Ct. 2658, 2677-78, ___ L.Ed.2d ___ (2009). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita Elec. Industrial Co., 475 U.S. at 587, 106 S.Ct. 1348 (internal quotation marks omitted), quoted in Ricci v. DeStefano, ___ U.S. ___, 129 S.Ct. 2658, 2677-78, ___ L.Ed.2d ___ (2009).

"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, 118 S.Ct. 1074, 140 L.Ed.2d 133 (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 relevant Rule 56(e) evidence

Defendant Whiddon was employed by the Department of Corrections from 2000 through January, 2008. Doc. 93, Ex. A (doc. 93-1).¹ During the relevant period at issue here, Defendant Whiddon "was assigned as a dorm sergeant ...." Id. On September 19, 2007, Defendant Whiddon and Officer Lamb were supervising "Muslim inmates during Ramadan but he did not supervise inmates who were in the dining hall." Id. Defendant Whiddon does not know who was assigned as dining hall supervisor, but he noticed that on September 19th, the inmates were "not sitting in the order that all inmates are instructed to do when seated for their meals." Id. Defendant Whiddon ordered the inmates to move, which they did without incident, except for Plaintiff. Id. Defendant Whiddon testifies that Plaintiff "began yelling in a loud and belligerent tone that they had been given permission to sit in that order." Id. The Defendant ordered Plaintiff "to sit in the proper seating order;" Plaintiff moved slowly, but complied. Id.

Plaintiff continued to yell across the dining hall at Defendant Whiddon, so the Defendant ordered Plaintiff to step outside the hall "to try to prevent Plaintiff from inciting the other inmates." Id. As Plaintiff approached the dining hall exit door, he "continued yelling at the other inmates that they all needed to stick together and that the white man could not enslave them anymore." Id. Plaintiff continued his yelling, trying to gain assistance from the other inmates. Id. As Plaintiff stepped outside, he was placed in restraints. Id. Other inmates then began approaching Defendant Whiddon and Officer Lamb, leading Defendant Whiddon to fear for his safety. Id. Defendant Whiddon called for assistance from other staff, but at "no point was Plaintiff ever assaulted by Defendant Whiddon or any other officer in his presence." Id. Plaintiff "did not resist being placed in restraints so there was no cause for any force to be used or any disciplinary reports to be issued for disobeying a verbal order." Id. Defendant Whiddon denies using any racial or religious vulgarities against Plaintiff on that date, "or any other occasion." Id.

Defendant Whiddon advised his supervisor of what had happened, and Captain Chambers instructed Sergeant McElveen to escort Plaintiff. Id. Defendant Whiddon was not present when other inmates were placed in restraints, and the Defendant testified that all guidelines were followed when he placed Plaintiff in restraints. Id. Defendant Whiddon did not attempt to prevent a medical examination of Plaintiff and never approached Plaintiff later to make any threats to him or his roommate. Id. Defendant Whiddon denies "ever physically or verbally abusing" Plaintiff in any manner or retaliating "against him for any grievances or lawsuits he may have filed ...." Id.

Defendant Robert Durham submitted his affidavit as well. Doc. 93, Ex. B (doc. 93-1). Defendant Durham has been employed by the Department of Corrections since May, 2006, and became certified as a correctional officer on November 8, 2006. Id. Defendant Durham states that "there were no reportable incidents on the dates Plaintiff alleges in his Complaint about him." Id. Defendant Durham has never "twisted or injured any inmate's arm or hand while handcuffing him." Id. He also avers that he has never "knowingly or intentionally placed handcuffs too tight on an inmate or handled an inmate in such a manner as to cause physical pain or injury." Id.

Defendant Durham also states that he has "never verbally threatened to harm any inmate" and never instructed to assault an inmate by another officer. Id. Defendant Durham also explained that inmates held in "confinement are visited by mental health professionals on a regular basis, and in the event of a declared mental health emergency regarding an inmate, that inmate is seen by mental...