Redd v. Bush

DAVID O'BRYAN REDD, Plaintiff, v. MAJOR JOHN BUSH, JR., et al. Defendants.

CV 115-195

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION

April 28, 2017

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Plaintiff, an inmate at Valdosta State Prison in Valdosta, Georgia, commenced the above-captioned case pursuant to 42 U.S.C. § 1983, concerning events alleged to have occurred at the Burke County Jail ("BCJ") in Waynesboro, Georgia. For the reasons set forth below, the Court REPORTS and RECOMMENDS Defendants' motion for summary judgment be GRANTED (doc. no. 27), final judgment be ENTERED in favor of Defendants, and this civil action be CLOSED.

I. PROCEDURAL BACKGROUND

Because Plaintiff is proceeding in forma pauperis, the Court screened his original complaint and directed service of process on Defendants based on claims of excessive force and threats. (See doc. no. 10.) Defendants answered, and the case proceeded on those claims. (See doc. no. 15.)

On January 4, 2017, Defendants filed the present motion for summary judgment. (Doc. no. 27.) Plaintiff responded by requesting counsel, transcripts of his probation revocation hearing, and "an extension of time if needed." (Doc. no. 29.) The Court denied Plaintiff's request for counsel and probation revocation transcripts, and construed Plaintiff's request for more time as a motion for extension of time to respond to Defendant's motion for summary judgment. (Doc. no. 30.) The Court granted Plaintiff an extension until February 15, 2017 to file his opposition to the summary judgment motion. (Id.) The Court warned Plaintiff that "[a]ny factual assertions made in the affidavits of the party moving for summary judgment will be deemed admitted by this Court pursuant to Loc. R. 7.5 and Fed. R. Civ. P. 56 unless Plaintiff contradicts the movant's assertions through submission of his own affidavits or other documentary evidence, and the motion for summary judgment will be granted on the grounds that said motion is unopposed." (Id. at 4.)

On February 14, 2017, Plaintiff filed a one-page document entitled "Motion to Object to the Summary of Judgment." (Doc. no. 31.) It contained no affidavits or documentary evidence, only the following conclusory statements:

1. Major John Bush did in fact threaten my life. And I have wittness [sic] to prove it. Jamie "Chambers" also he stated to Agent Boyld that he never said anything about killing me. "David Redd"

2. As for his sister J. Bush she stated on the stand that yes she busted my face. And that she did not go to the doctor.

3. And to show that Mr. Jerry Clark is not telling the truth. He stated on stand that all of this occurred on a Sunday. They also stated that I started a fire with a lighter. If this was the case, then why wasn't charges brought up on Mr. Redd for arson and where did he get the lighter? They all are lying and I pray to bring them to Justice.

(Id. at 1.)

Because Plaintiff did not contradict Defendants' factual assertions with any affidavits or other documentary evidence, the Court deems admitted all portions of Defendants' Statement of Undisputed Material Facts that have evidentiary support in the record. See Loc.R. 56.1; Fed. R. Civ. P. 56(e); see also Williams v. Slack, 438 F. App'x 848, 849-50 (11th Cir. 2011) (finding no error in deeming defendants' material facts admitted where pro se prisoner failed to respond with specific citations to evidence and otherwise failed to state valid objections); Scoggins v. Arrow Trucking Co., 92 F.Supp.2d 1372, 1373 n.1 (S.D. Ga. 2000). However, this does not automatically entitle Defendants to summary judgment because as movants, they continue to "shoulder the initial burden of production in demonstrating the absence of any genuine issue of material fact." Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008); see also Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009). Thus, the Court will review the record "to determine if there is, indeed, no genuine issue of material fact." Mann, 588 F.3d at 1303.

II. FACTS

On August 3, 2014, Deputy Michael Murphy responded to a motor vehicle accident involving a Ford F-150. (Doc. no. 27-6, ¶ 3 (hereinafter "Murphy Aff.").) When he arrived on the scene, he encountered Plaintiff, who reeked of alcohol and had difficulty performing simple tasks like standing and pulling his driver's license from his wallet. (Id. ¶¶ 4, 7. When asked if he was the driver of the truck, Plaintiff cursed at and threatened to kill Dep. Murphy. (Id. ¶ 8.) Dep. Murphy then arrested Plaintiff, charged him with Driving Under the Influence and Terroristic Threats and Acts, and transported him to BCJ. (Id. ¶¶ 9, 11.)

Once at BCJ, Plaintiff became very combative, and it took four officers to place him in a restraint chair in a holding cell. (Id. ¶ 12; doc. no. 27-7, ¶¶ 5-6 (hereinafter "Clark Aff."); doc. no. 27-5, ¶¶ 8-9 (hereinafter "Bush Aff.").) While being restrained, Plaintiff kicked Officer Jerry Clark in the stomach, threatened to kill various deputies, and threatened to kill Dep. Murphy's mother. (Murphy Aff., ¶ 13; Clark Aff., ¶ 7; Bush Aff., ¶ 9.) Becauseof these actions, Plaintiff was charged with two felony counts of obstruction of an officer as well as battery. (Bush Aff., ¶¶ 19, 25, Ex. B & C.)

Later that morning, Sergeant Jacquelyn Bush brought lunch to Plaintiff and released one of his arm restraints to allow him to eat. (Murphy Aff., ¶ 14; Clark Aff., ¶¶ 8, 10.) She also loosened his leg restraints because he complained they were too tight. (Clark Aff., ¶ 10.) About fifteen minutes later, Ofc. Clark saw smoke coming from Plaintiff's holding cell, and he and Sgt. Bush rushed to the cell to discover what was happening. (Id. ¶¶ 8-9.)

Upon arrival, Ofc. Clark and Sgt. Bush discovered Plaintiff had used his free hand to set fire to the chair restraints with a cigarette lighter and to free one of his legs. (Id. ¶ 11; Bush Aff., ¶ 10; Murphy Aff., ¶ 15.) Ofc. Clark and Sgt. Bush attempted to put out the fire and re-restrain Plaintiff, but Plaintiff kicked Sgt. Bush in the stomach several times. (Clark Aff., ¶ 12; Bush Aff., ¶ 11; Murphy Aff., ¶ 16.) To regain control over Plaintiff so they could put out the fire, Sgt. Bush hit Plaintiff in the face several times with her hand. (Clark Aff., ¶ 13; Bush Aff., ¶ 11.)

Both Sgt. Bush and Plaintiff saw a doctor as a result of this altercation. (Clark Aff. ¶¶ 14-15; Bush Aff., ¶¶ 12-13, Ex. A.) Plaintiff was taken to the emergency room, where doctors noted no swelling or bruising on Plaintiff's wrists, a small bruise on Plaintiff's face, and no symptoms of traumatic injury. (Clark Aff., ¶ 15; Bush Aff., ¶ 13 & Ex. A, p. 2.) Plaintiff was charged with another count of obstruction of an officer and battery for kicking Sgt. Bush. (Bush Aff., Ex. B & C.)

On August 4, 2014, Major John Bush, administrator of BCJ and brother of Sgt. Bush, spoke to Plaintiff about his conduct the previous day. (Bush Aff., ¶¶ 2-3, 14-15.) Plaintiff had previous threatened Maj. Bush's life and insulted his mother on numerous prior visits toBCJ. (Clark Aff., ¶ 3; Bush Aff. ¶¶ 5-6.) During this conversation, Maj. Bush told Plaintiff that, if he had been his former self, he would have killed Plaintiff. (Bush Aff., ¶ 15.) However, he made it clear that he was now reformed and would not actually kill Plaintiff. (Id.) Maj. Bush merely wanted to emphasize to Plaintiff how out of line his behavior had been. (Id.) Plaintiff acknowledged he had acted wrongly. (Id. ¶ 16.) After that interaction, Maj. Bush had no further contact with Plaintiff before he was transferred to the Jefferson County Jail ("JCJ") the next day. (Id. ¶ 17.)

After a hearing on April 22, 2015, Plaintiff's probation was revoked in case number 2010-R-100 and he was sentenced to five years in prison based on the incident related above. Id. ¶ 19, Ex. B., p. 2. Plaintiff was also indicted for misdemeanor D.U.I. and four separate charges directly related to this incident: (1) Terroristic Threats toward Deputy Murphy; (2) Obstruction of a Law Enforcement Officer regarding Deputy Murphy; (3) Obstruction of a Law Enforcement Officer regarding Ofc. Clark; and (4) Obstruction of a Law Enforcement Officer in regard to Sgt. Bush. Id. ¶¶ 22, 25, Ex. C, pp. 5-7. Plaintiff eventually entered an Alford plea to the obstruction of a law enforcement officer counts regarding Ofc. Clark and Sgt. Bush. Id. ¶¶ 24-26, Ex. C, pp. 1, 6-7. The prosecutor dismissed the remaining charges for terroristic threats, obstruction of a law enforcement officer regarding Deputy Murphy, and misdemeanor D.U.I. counts. Id. Plaintiff was sentenced to serve five years concurrent with his sentence for probation revocation. Id.

Plaintiff's medical records show a history of chronic back and left wrist pain stemming from a high-speed motorcycle accident in 2000, along with a history of chronic anxiety and depression. (Doc. 27-3, pp. 5-7; doc. no. 27-4, p. 2.) He had an ORIF surgical procedure in 2010 to place a screw in his wrist. (Doc. no. 27-4, pp. 3-4.)

Plaintiff claims that his wrist was reinjured on August 3, 2014, when he was arrested and booked into the BCJ. (See doc. no. 1.) However, he did not claim this injury came from his altercation with Sgt. Bush, but rather from the arresting officers handcuffing him too tightly. (Doc. no. 27-4, p. 5; Bush Aff., Ex. A, p. 2.) Furthermore, when he was offered anti-inflammatories for his pain by the JCJ on October 3, 2014, he refused because they were not the narcotics he wanted. (Doc. no. 27-3, p. 5.)

Plaintiff had another wrist surgery in October 2015. (Id. at 8.) However, the records for that surgery show any recent injury to the wrist was not acute, but rather a non-union where the old fracture was located from the motorcycle accident. (Id. at 4-6; Bush Aff., Ex. A, p. 2.)

Plaintiff has only sought mental health treatment once in prison, in January 2016. (Doc. no 27-3, pp. 9-15.) He indicated he had a personal and family history of mental...