Opinion
7:20-CV-79 (WLS)
01-20-2022
EUGENE KYEVONNIE LESLIE, Plaintiff, v. HAYWARD CRUMBRY, et al., Defendants.
RECOMMENDATION
THOMAS Q. LANGSTAFF, UNITED STATES MAGISTRATE JUDGE
Plaintiff, proceeding pro se, brought the above-styled action pursuant to 42 U.S.C. § 1983 on April 30, 2020. (Doc. 1). In the Court's initial review of the Complaint, the Court permitted, among others, Plaintiff's Eighth Amendment deliberate indifference to a serious medical need claim against Defendant Crumbry to proceed. (Doc. 5, pp. 9-10). Defendant Crumbry filed a Motion for Summary Judgment. (Doc. 24). Plaintiff filed a Response. (Doc. 27).
Plaintiff's Complaint refers to Defendant Crumbry as “Chrumblee.” (Doc. 1, p. 13). Defendant Crumbry's Answer misspelled his name as “Crumby.” (Doc. 17, p. 1). Defendant Crumbry's Brief corrects this error. (Doc. 24-3, p. 1). The Court will refer to Defendant Crumbry as he refers to himself in his Brief. Id. The Clerk is DIRECTED to make this change to Defendant Crumbry's name on the docket.
Plaintiff's Allegations
Plaintiff sets forth the following allegations in his Complaint concerning his incarceration at Valdosta State Prison (“VSP”). (Doc. 1). While in lockdown in his cell on or about February 1, 2019, Plaintiff was sprayed by Sergeant Sharpe in his face, eyes, and mouth with O.C. spray Id. at 11. Medical was not notified and Plaintiff was “left in [his] cell with no fresh oxygen to breathe with windows sealed shut . . . [and] left to suffer the morning of February 1, 2019.” Id. Defendant Crumbry relieved second shift and “never called medical.” Id. at 13.
Standard of Review
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, “[t]he 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.Fed. R. Civ. P. 56(c)(1). All facts and reasonable inferences drawn therefrom must be viewed in the light most favorable to the nonmoving party. Cruz v. Publix Super Markets, Inc., 428 F.3d 1379, 1382 (11th Cir. 2005).
As the party moving for summary judgment, Defendant Crumbry has the initial burden to demonstrate that no genuine issues of material fact remain 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). Rule 56 of the Federal Rules of Civil Procedure allows the Court to consider the entire record when ruling on a motion for summary judgment. “The court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3).
Defendant Crumbry has supported his Motion for Summary Judgment by submitting the Declaration of non-party Elizabeth Fields as well as his own Declaration. (Docs. 24-2, 24-1 respectively). Plaintiff filed a Response (Doc. 27) and submitted the same Declaration of non-party Elizabeth Fields (Doc. 27-1), as well as the same Use of Force Assessment (Doc. 27-2) attached to Ms. Fields' Declaration (Doc. 24-2, pp. 4-7).
Evidence
According to Plaintiff's unverified and unsworn Complaint, prior to the incident that occurred on or about February 1, 2019, Plaintiff was housed in lockdown in dormitory E-1 at VSP. (Doc. 1, p. 8). Plaintiff alleges that Sergeant Sharpe approached Plaintiff's cell, and while Plaintiff was explaining to Sergeant Sharpe that he was trying to clean “infested water out of [his] cell, ” Sergeant Sharpe discharged O.C. spray directly in Plaintiff's face, eyes, and mouth. Id. at 11. Plaintiff states that Sergeant Sharpe left him in his cell without notifying medical and without “fresh oxygen to breathe with windows sealed shut at 0635 hours.” Id. Plaintiff alleges that he was “left to suffer the morning of February 1st, 2019.” Id. According to Plaintiff, Defendant Crumbry relieved second shift and “never called medical.” Id. at 13.
The Court notes that Plaintiff's signature on his Complaint has been notarized. (Doc. 1, p. 13). However, a notarized signature, without more, does not verify a complaint. Plaintiff did not include a statement that he swore that the foregoing was true and accurate, nor did he make any attempt to comply with 28 U.S.C. § 1746. See Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1305-06 (5th Cir. 1988) (declining to consider on summary judgment an “affidavit” that was only notarized and was “neither sworn nor its contents stated to be true and correct nor stated under penalty of perjury) (cited by United States v. Four Parcels of Real Property in Greene and Tuscaloosa Counties in the State of Ala., 941 F.2d 1428, 1444 n.36 (11th Cir. 1991) (noting that a declaration executed in accordance with 28 U.S.C. § 1746 may be considered at summary judgment)); United States v. Jaramillo, 69 F.3d 388, 391-92 (9th Cir. 1995) (finding the district court erred in finding a statement was made under oath because “nothing . . . indicates that it was made under oath, or that [the defendant] was sworn”); Galvan v. Del Taco, 2015 WL 1038090 at *3 (D. Nev. 2015) (declining to consider notarized statements at summary judgment because they were not sworn under penalty of perjury and citing Flowers v. Abex Corp., 580 F.Supp. 1230, 1233 n.2 (N.D. Ill. 1984) for the proposition that “merely notarizing the signature does not transform a document into [an] affidavit that may be used for summary judgment purposes.”).
Sergeant Sharpe is Defendant Patrick Sharpe. (Doc. 26).
Defendant Hayward Crumbry is a correctional officer at VSP. (Doc. 24-1, p. 1). He admits that he was a by-stander who was present when Plaintiff was sprayed with pepper spray. Id. Defendant Crumbry states that Plaintiff was immediately removed from his cell, taken to a shower to remove the pepper spray, and then was examined by a nurse, who found no injuries other than red eyes. Id. at 2. Defendant Crumby states that, because Plaintiff received an immediate shower and medical treatment, and that Plaintiff's cell was equipped with running water and Plaintiff was instructed to use cool water to wash his face and eyes, he did not believe Plaintiff was experiencing a serious medical need. Id.
Non-party Elizabeth Fields, a contract employee for the Georgia Department of Corrections, was the Director of Nurses at VSP. (Doc. 24-2, p. 1). Based on her authentication of and review of Plaintiff's medical records, she states that medical was immediately notified that Plaintiff was pepper sprayed and that Plaintiff was immediately examined by a nurse. Id. at 2. Other than having red eyes, Plaintiff had no injuries, and his cell was equipped with a sink and running water, which Plaintiff was instructed to use to wash his face and eyes. Id. Ms. Fields also states that Plaintiff was taken to shower to more thoroughly allow water to wash his face and eyes. Id. Plaintiff received a follow-up examination on February 6, 2019 with a Nurse Practitioner, who did not find any eye injuries resulting from Plaintiff being pepper sprayed. Id.
In his unverified and unsworn Response to Defendant Crumbry's Motion for Summary Judgment, Plaintiff makes the bare allegation without evidentiary support that unspecified portions of Defendant Crumbry's documents are falsified or fabricated. (Doc. 27, p. 2).
Discussion
Defendant Crumbry argues that he is entitled to summary judgment for the following reasons: (1) he did not violate Plaintiff's Eighth Amendment rights, and (2) he is entitled to qualified immunity. (Doc. 24-3).
Deliberate Indifference to a Serious Medical Need
To state a claim for deliberate indifference to a serious medical need, a plaintiff must allege “(1) a serious medical need; (2) the defendants' deliberate indifference to that need; and (3) causation between that indifference and the plaintiff's injury.” Barcelona v. Rodriguez, 847 Fed.Appx. 739, 741-42 (11th Cir. 2021) (quoting Danley v. Allen, 540 F.3d 1298, 1310 (11th Cir. 2008) overruled on other grounds as recognized by Randall v. Scott, 610 F.3d 701 (11th Cir. 2010)). Critically, to establish a violation of the Eighth Amendment, there must be “some proof that officials acted with specific intent.” Id. at 741 (quoting Campbell v. Sikes, 169 F.3d 1353, 1362-63 (11th Cir. 1999)). To establish the intent element, a plaintiff must allege that the prison official had “‘subjective knowledge of a risk of serious harm' and disregarded that risk ‘by conduct that is more than [gross] negligence.'” Id. at 742 (quoting Danley, 540 F.3d at 1312) (alteration in original).
“Delay in access to medical attention can violate the Eighth Amendment . . . when it is tantamount to unnecessary and wanton infliction of pain.” Jacoby v. Baldwin Cnty., 596 Fed.Appx. 757, 766-67 (11th Cir. 2014) (quoting Hill v. DeKalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994) (abrogated on other grounds by Hope v. Pelzer, 536 U.S. 730 (2002))). Deliberate indifference may be found in “situations where it is apparent that delay would detrimentally exacerbate the medical problem.” Id. at 767 (quoting Hill, 40 F.3d at 1187). However, where an inmate “complains that delay in medical treatment rose to a constitutional violation [the inmate] must place verifying medical evidence in the record to establish the detrimental effect of delay in medical treatment to succeed.” Id. (quoting Hill, 40 F.3d at 1187).
Here, Plaintiff's claim fails for two reasons. First, Plaintiff has failed to allege that Defendant Crumbry had “‘subjective knowledge of a risk of serious harm' and disregarded that risk ‘by conduct that is more than [gross] negligence.'” Barcelona, 847 Fed.Appx. at 742 (quoting Danley, 540 F.3d at 1312). The entire allegation in Plaintiff's Complaint regarding Defendant Crumbry is as follows: “C/O I [Defendant Crumbry] relieved second shift, and never called medical.” (Doc. 1, p. 13). Missing from Plaintiff's Complaint is an allegation that Defendant Crumbry had any knowledge that Plaintiff had been left without medical treatment. See Danley, 540 F.3d at 1312 (finding that the prisoner-plaintiff had successfully alleged that the defendant prison officials had subjective knowledge of the prisoner-plaintiff's serious medical need).
While Defendant Crumbry admits he was present when Plaintiff was pepper sprayed, Defendant Crumbry also declares under oath that Plaintiff was taken to the showers to remove the pepper spray, he was examined by the nurse who found that Plaintiff had red eyes but no other injuries, and that Plaintiff's cell was equipped with running water and he was instructed to use cool water to wash his face and eyes. (Doc. 24-1, p. 2). Because of those reasons, Defendant Crumbry did not believe that Plaintiff was experiencing a serious medical need. Id. Plaintiff has failed to offer any evidence which rebuts Defendant Crumbry's Declaration. As a result, the only evidence before the Court at this time as to Defendant Crumbry's subjective state of mind shows that he was aware that Plaintiff was pepper sprayed but that he believed Plaintiff did not have a serious medical need because Plaintiff was taken to the showers, examined by a nurse who found no injuries other than red eyes, had access to running water in his cell, and was instructed to wash his face and eyes.
Second, Plaintiff has not “place[d] verifying medical evidence in the record to establish the detrimental effect of delay in medical treatment to succeed.” Jacoby, 596 Fed.Appx. at 767. In construing this requirement, the Eleventh Circuit collected cases from sister circuits. Hill, 40 F.3d at 1188 n.24. The Court highlighted medical documents that could serve as verifying medical evidence, such as hospital records and medical expert testimony. It is Plaintiff's burden to place medical evidence into the record. Jacoby, 596 Fed.Appx. at 767. Plaintiff has not placed any medical evidence into the record which would create a genuine issue of material fact as to whether Plaintiff suffered a detrimental effect because of a delay in medical treatment.
As Plaintiff “has failed to make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof[, ]” Defendant Crumbry is entitled to summary judgment. Celotex, 477 U.S. at 323.
Qualified Immunity
Defendant Crumbry also raised the defense of qualified immunity. (Doc. 24-3, pp. 6-8). “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).
As the Court finds no constitutional violation, Defendant Crumbry is also entitled to qualified immunity. Baltimore v. City of Albany, Ga., 183 Fed.Appx. 891, 896 (11th Cir. 2006) (per curiam).
Conclusion
Therefore, for the above stated reasons, it is RECOMMENDED that Defendant Crumbry's Motion for Summary Judgment (Doc. 24) be GRANTED.
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.