Opinion
7:19-CV-125 (WLS)
02-23-2022
OTIS REDMON, Plaintiff, v. RALPH SHROPSHIRE, 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 August 12, 2019. (Doc. 1). In the Court's initial review of the Complaint, the Court permitted Plaintiff's Eighth Amendment excessive force claims against Defendants Shropshire, Pineiro, Allen, Miles, and Ford to proceed. (Doc. 6). On June 4, 2021, Defendant Ford filed a Motion for Summary Judgment. (Doc. 36). On July 14, 2021, Defendants Shropshire, Pineiro, Allen, and Miles (“Supervisory Defendants”) filed a Motion for Summary Judgment. (Doc. 39). After the Clerk of Court notified (Docs. 37, 40) Plaintiff of his rights and obligations in responding to said Motions, Plaintiff requested an extension of time to respond (Doc. 41). Plaintiff was granted an extension of time to respond (Doc. 42) but did not file a Response.
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 June 11, 2019, Plaintiff signed a receipt for delivery of his store goods. Id. at 5. After he signed the receipt, but before he received his goods, Ms. Henry, an employee in the store, was alerted to a store bag that was “just stolen.” Id. Ms. Henry told Plaintiff to hold on and called a radio code. Id. The CERT Team arrived with Deputy Wardens Pineiro and Shropshire, Unit Manager Allen, and Captain Miles. Id.
After the stolen bag was recovered, CERT Officer Ford came to Plaintiff's cell to close the tray flap. Id. Plaintiff asked Officer Ford to speak to a supervisor because he had signed for his goods without obtaining them. Id. Officer Ford yelled “get the fuck off the flap” and sprayed Plaintiff in the face with a “riot size can” of mace “without warning.” Id. After being sprayed with mace, Plaintiff was instructed to close the flap, which he did. Id.
Plaintiff was then handcuffed and taken to dorm J-2 cell 10 and placed in a strip-cell without working water, while Deputy Wardens Pineiro and Shropshire, Unit Manager Allen, and Captain Miles were present. Id. at 7. Plaintiff was unable to wash his burning eyes and skin. Id. Plaintiff was allowed to shower the next day, more than twenty (20) hours after the incident. Id.
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 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). 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 Ford has supported his Motion for Summary Judgment by submitting a partial transcript of Plaintiff's deposition and requested that the Supervisory Defendants file Plaintiff's original deposition transcript. (Doc. 36-1, pp. 20-53). In support of their Motion for Summary Judgment, the Supervisory Defendants submit the transcript of Plaintiff's deposition. (Doc. 39-3).
Defendant Ford 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. 36-1). The Supervisory Defendants argue they are entitled to summary judgment for the following reasons: (1) the Supervisory Defendants were not involved in the initial spraying of Plaintiff, (2) Plaintiff cannot assert a respondent superior claim against them, and (3) they are entitled to qualified immunity. (Doc. 39-2).
Evidence
Defendant Brian Ford is a member of the CERT Team at VSP. (Doc. 36-1, p. 2). The Supervisory Defendants are Deputy Warden of Security Ralph Shropshire, Deputy Warden of Care and Treatment Aaron Pineiro, Unit Manager Clyde Allen, and Captain Jimmy Miles. (Doc. 39-2, p. 3). (Defendant Ford and the Supervisory Defendants are, collectively, “Defendants.”). The only evidence submitted by Defendants is taken from Plaintiff's deposition testimony. (Doc. 39-3). Defendants submitted no affidavits or declarations in support of their respective Motions.
According to Plaintiff, prior to the incident that occurred on June 11, 2019, Plaintiff was housed in lockdown in dormitory J-1 at VSP. Id. at 15-16. Plaintiff testified that on the day in question, Ms. Henry, a store employee, was passing out goods purchased at the commissary store by inmates by going to the inmate's door, opening the tray flap in the door, having the inmate sign a receipt for the purchased goods, and then giving the inmate their purchased goods. Id. at 22. The tray flap in the door is roughly two (2) feet long and six (6) inches high and is typically closed at all times except when items are being delivered to an inmate, an inmate is leaving the cell to shower or to go to the yard, or if an inmate is receiving goods from the store. Id. at 30.
Plaintiff stated that when he signed his receipt, another store employee came upstairs to alert Ms. Henry that someone stole the store bag. Id. at 23. Ms. Henry called a code on her radio, which is when all of the wardens and all of the administration ran to the bottom floor. Id. Plaintiff could see who responded because his tray flap had been opened and left open by Ms. Henry, at which time she told Plaintiff to “hold on.” Id. at 24-25.
Once the missing store bag was found, Plaintiff testified that he had not received his store goods yet, so he tried to alert the officers because he had signed his receipt and would be liable without receiving his goods. Id. at 28. As Defendant Ford began coming up the steps and was trying to close the flaps, Plaintiff's flap was the first one Defendant Ford came to. Id. at 28-29.
Plaintiff testified that his cellmate had his arm out of the tray flap when Defendant Ford approached. Id. at 33-34. While Plaintiff's cellmate was speaking with Defendant Ford about Plaintiff's missing store goods, Plaintiff was standing behind his cellmate. Id. Plaintiff's cellmate spoke with Defendant Ford through the tray flap for “maybe ten seconds . . . 10 or 15 seconds” during which time Plaintiff heard Defendant Ford instruct his cellmate to close the flap. Id. at 34-35. At that point, Plaintiff decided to speak with Defendant Ford himself. Id. at 34.
Plaintiff stated that he got “down in the tray flap” and said, “[l]ook, man, I already signed for the store . . . Ms. Henry told me to hold on.” Id. In response, Defendant Ford said, “Shut the fuck up, get off the flap.” Id. Plaintiff responded, “at least, let me speak to a supervisor.” Id. Defendant Ford then put his can of spray in the tray flap, which Plaintiff “guess[ed]” was a warning. Id. at 36-37. Without any other warning, Defendant Ford sprayed Plaintiff directly in the face with the pepper spray. Id. at 37. Plaintiff was then told to close the flap, which he did. Id. at 38. The only Defendant present when Plaintiff was sprayed was Defendant Ford, but Defendant Miles was coming up the stairs. Id. at 40, 61, 63.
Plaintiff testified that he was then instructed to cuff up and after he was placed in handcuffs, he was escorted by all Defendants to a small yard outside of dormitory J where he was examined by an unnamed nurse. Id. at 38-40, 64. The nurse asked Plaintiff if he was okay, Plaintiff responded “no, ” but did not request his asthma inhaler, and then began speaking about his constitutional rights, at which time the nurse left. Id. at 40-41, 44, 93. Plaintiff testified that the Supervisory Defendants were present when he was in the small yard outside of dormitory J. Id. at 64. Plaintiff stated that non-defendant Unit Manager Smith told the Supervisory Defendants that Plaintiff should be “put . . . in the shower.” Id. Plaintiff testified that, after he was examined by the nurse, none of the Supervisory Defendants said that Plaintiff needed to be decontaminated. Id. at 65.
Plaintiff testified that he was then escorted by the Supervisory Defendants and a non-defendant officer to dormitory J-2, where Plaintiff was placed in a segregation one-man cell. Id. at 44; 63-64. Plaintiff was not decontaminated prior to being placed in the segregation cell which did not have running water. Id. at 45-47. Plaintiff stated that he was yelling for water and an unnamed female officer told him that unknown individuals told her that Plaintiff was not to have water. Id. at 49-50.
Plaintiff stated that he believed that the incident occurred about 9 o'clock or 10 o'clock in the morning, and he was in the segregation cell until 10 or 11 o'clock the next day and was then allowed to shower. Id. at 46, 48. Plaintiff remained in the segregation cell thereafter. Id. at 47.
According to Plaintiff, the pepper spray caused him, an asthmatic, to have shortness of breath, burning eyes, swelling of his face, and burning skin. Id. at 50. Eventually, the pain in his eyes went away, but the burning skin did not. Id. at 51. Plaintiff did not request medical treatment, and once he showered, he felt fine, but he felt suicidal as a result of the incident. Id. at 51-52.
Finally, Plaintiff testified that he knew that the tray flap was supposed to be closed and that both he and his cellmate had been warned to close the tray flap. Id. at 86, 88-89, 92. Plaintiff said that his cellmate had been warned by Defendant Ford displaying the spray can to him through the tray flap but that his cellmate did not remove his arm. Id. at 87-88. Plaintiff had already witnessed the spray can displayed to his cellmate and decided to put his arm in the tray flap in an effort to speak with a supervisor about his store goods. Id. at 86, 89.
Discussion
Plaintiff did not file a Response to Defendants' Motions for Summary Judgment, despite being notified of his rights and obligations to do so (Docs. 37, 40) and requesting an extension of time to respond (Doc. 41). As an initial matter, a court may not enter summary judgment based solely on the fact that the motion for summary judgment was unopposed. United States v. One Piece of Real Property Located at 5800 S.W. 74th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004). Instead, the court must consider the merits of the motion. Id. (citation omitted). While the court need not sua sponte review all of the evidentiary materials on file at the time the motion is considered, the court must still ensure that the motion itself is supported by evidentiary materials. Id. “At the least, the district court must review all of the evidentiary materials submitted in support of the motion for summary judgment.” Id. (citation omitted); see also generally Wade v. Doe, 2020 WL 7130791 at *6-7 (M.D. Ga. 2020).
Excessive Force: Defendant Ford
The Eighth Amendment prohibits cruel and unusual punishment and “governs the treatment a prisoner receives in prison and the conditions under which he is confined.” Farrow v. West, 320 F.3d 1235, 1242 (11th Cir. 2003) (quotations and citations omitted). “However, [n]ot every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny. After incarceration, only the ‘unnecessary and wanton infliction of pain' . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Id. (citing Whitley v. Albers, 475 U.S. 312, 319 (1986) and Ingraham v. Wright, 430 U.S. 651, 670 (1977)). Thus, not “every malevolent touch by a prison guard gives rise to a federal cause of action.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)).
As a result, the ultimate question in determining whether a prison official used excessive force is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 7. However, this analysis is “contextual” and involves the consideration of “many” factors. Harris v. Chapman, 97 F.3d 499, 505 (11th Cir. 1996).
Although the extent of the injury to the plaintiff may be considered, it is not the central inquiry. Wilkins, 559 U.S. at 37. The Supreme Court has rejected the notion that “significant injury” is required to maintain a valid excessive force claim. Id. The Court recognized that “[a]n inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury.” Id. at 38. However, de minimis injury is also not actionable “provided that the use of force is not of a sort repugnant to the conscience of mankind.” Id. at 37-38.
In the Eleventh Circuit, the inquiry into whether an individual applied excessive force requires the consideration of five factors: (1) the need for force, (2) the relationship between the need and the force applied, (3) the injury, (4) “the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible official on the basis of the facts known to them, ” and (5) “any efforts made to temper the severity of a forceful response.” Danley v. Allen, 540 F.3d 1298, 1307 (11th Cir. 2008), overruled on other grounds as recognized by Randall v. Scott, 610 F.3d 701 (11th Cir. 2010).
Factor 1: Need for force
The Eleventh Circuit has held that “[p]rison guards may use force when necessary to restore order and need not wait until disturbances reach dangerous proportions before responding.” Bennett v. Parker, 898 F.2d 1530, 1533 (11th Cir. 1990). In his unsworn and unverified Complaint, Plaintiff alleges that he had asked to speak with a supervisor and then was sprayed in the face after Defendant Ford told him to “get the fuck off the flap.” In his deposition, Plaintiff testified that his cellmate had been told by Defendant Ford to close the tray flap. After his cellmate had been told by Defendant Ford to close the tray flap but did not do so, Plaintiff testified that he got down in the tray flap and said, “[l]ook, man, I already signed for the store . . . Ms. Henry told me to hold on.” In response, Defendant Ford said, “Shut the fuck up, get off the flap.” Plaintiff responded, “at least, let me speak to a supervisor.” Defendant Ford then put his can of spray in the tray flap, which Plaintiff “guess[ed]” was a warning. Without any other warning, Defendant Ford sprayed Plaintiff directly in the face with the pepper spray.
Plaintiff also testified that he knew that the tray flap was supposed to be closed. Plaintiff confirmed that both his cellmate and he had been warned to close the tray flap. Plaintiff also stated that his cellmate had been warned by Defendant Ford displaying the spray can to his cellmate through the tray flap. However, his cellmate initially did not remove his arm from the tray flap when shown the spray can by Defendant Ford. Further, Plaintiff testified that he had already witnessed the spray can displayed to his cellmate and decided to put his arm in the tray flap in an effort to speak with a supervisor about his store goods.
Plaintiff admits that he heard his cellmate be instructed to close the tray flap, that he saw Defendant Ford display a can of pepper spray to his cellmate through the tray flap, that he knew the tray flap should have been closed, and that he took Defendant Ford's display of pepper spray to him as a warning. Despite all of this, Plaintiff did not obey Defendant Ford's order to close the tray flap. As such, the use of force was necessary due to Plaintiff's refusal to comply with Defendant Ford's orders. Pearson v. Taylor, 665 Fed.Appx. 858, 864 (11th Cir. 2016) (finding that a “short burst of pepper spray is not disproportionate to the need to control an inmate who has failed to obey a jailer's orders.”). Therefore, the Court finds the first factor weighs in favor of Defendant Ford.
Factor 2: Relationship between the need for force and the force applied
Plaintiff has not alleged that Defendant Ford used an excessive amount of pepper spray. Nor is there any evidence in the record as to the length of time Defendant Ford sprayed the pepper spray. The Eleventh Circuit has held that an “initial use of pepper spray is not necessarily a constitutional violation” because it may be “a very reasonable alternative to escalating a physical struggle.” Nasseri v. City of Athens, 373 Fed.Appx. 15, 17 (11th Cir. 2010) (quoting Danley, 540 F.3d at 1308). As such, the Court finds that the second factor weighs in favor of Defendant Ford.
Factor 3: Injury
Plaintiff testified that the pepper spray caused him, an asthmatic, to have shortness of breath, burning eyes, swelling of his face, and burning skin. However, Plaintiff also testified that he did not request his asthma inhaler when he was examined by the nurse.
Viewing the evidence in the light most favorable to Plaintiff as to the initial spray of pepper spray only, Defendant Ford did not cause injuries sufficient to warrant a constitutional violation. Danley, 540 F.3d at 1308 (finding that a short burst of pepper spray was not excessive because it is “designed to disable . . . without causing permanent physical injury.”). As such, the Court finds the extent of Plaintiff's injury, as described by Plaintiff, weighs in favor of Defendant Ford.
Factor 4: Extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible official based on the facts known to them
Plaintiff admits that he heard his cellmate be instructed to close the tray flap, that he saw Defendant Ford display a can of pepper spray to his cellmate through the tray flap, that he knew the tray flap should have been closed, and that he took Defendant Ford's display of pepper spray to him as a warning. Despite all of this, Plaintiff did not obey Defendant Ford's order to close the tray flap.
“Prison guards may use force when necessary to restore order and need not wait until disturbances reach dangerous proportions before responding.” Danley, 540 F.3d at 1307 (quoting Bennett, 898 F.2d at 1533). The prisoner-plaintiff in Danley had twice disobeyed the officer-defendant's orders, at which time the officer-defendant sprayed the prisoner-plaintiff with pepper spray. Id. Here, Plaintiff's cellmate's and Plaintiff's repeated refusal to comply with Defendant Ford's orders created a threat to the safety of staff and inmates. Id. at 1308. As such, the Court finds that the fourth factor weighs in favor of Defendant Ford.
Factor 5: Efforts made to temper the severity of a forceful response
In determining the efforts of a defendant in tempering the severity of a forceful response, the Court looks at whether the defendant: ceased the use of force once the plaintiff was subdued, made efforts to check on the plaintiff's wellbeing throughout the use of force, and made post injury efforts to ameliorate the effects of force used, such as immediately summoning medical assistance. Brockington v. Stanco, 2016 WL 4443204 at *6 (M.D. Ga. May 25, 2016) (citations omitted).
Plaintiff testified that there was a single burst of pepper spray. Plaintiff does not allege that Defendant Ford continued to spray him after the initial burst of pepper spray. “Given that Plaintiff's resulting injury was minimal . . . little effort was needed to mitigate the effects of the force that was applied.” Brockington, 2016 WL 4443204, at *7. Plaintiff was immediately escorted outside to be examined by a nurse. As such, the Court finds that the fifth factor weighs in favor of Defendant Ford.
In light of the five factors considered above, the Court finds Defendant Ford is entitled to summary judgment as a matter of law. Plaintiff's deposition testimony establishes that Defendant Fords' alleged actions were reasonable under the circumstances. Plaintiff has not identified, nor does a careful review of the evidence show, a genuine issue of material fact as to whether there was an Eighth Amendment violation.
Excessive Force: Supervisory Defendants
As an initial matter, the Supervisory Defendants argue that they are not liable, in part, because they were not present for the initial burst of pepper spray. However, the Court must look at the entire sequence of the alleged excessive use of force, which includes any alleged failure to decontaminate. Snellgrove v. Davis, 2016 WL 10518966 at *3-4 (N.D. Fla. 2016) (citing Danley, 540 F.3d at 1298, 1307-09) (finding that, in the context of a Fourteenth Amendment claim for excessive force resulting from a pretrial detainee being pepper sprayed and left without decontamination for nearly twenty-four (24) hours, a pretrial detainee had alleged a “continuum of excessive force” that comprised the initial pepper spraying and the failure to decontaminate the pretrial detainee).
In Danley, the Eleventh Circuit held that the use of pepper spray against an inmate followed by confinement which enhanced the effects of the spray was “analogous to two blows in a beating.” Danley, 540 F.3d at 1307. “The nearly simultaneous actions are interrelated parts of a single course of conduct, not separate events.” Id. Although the Eleventh Circuit has “parsed individual acts in a single sequence of events into separate claims in some cases, ” they did so “at the plaintiff's request.” Id. (citations omitted). In Danley, the plaintiff had not asked the Court to do so, and the Eleventh Circuit held that it was “his complaint that we are construing in the light most favorable to him.” Id.
Plaintiff has alleged a single continuum of excessive force against the Supervisory Defendants. Plaintiff testified that he was pepper sprayed and then immediately taken to the yard outside dormitory J by all Defendants; that the Supervisory Defendants were present when he was in the yard being examined by the nurse; that the Supervisory Defendants were present when Plaintiff responded “no” when asked by the nurse if he was “all right”; that the Supervisory Defendants were present when Unit Manager Smith said that Plaintiff should be decontaminated; that none of the Supervisory Defendants stated that Plaintiff needed to be decontaminated following his medical examination; and, that the Supervisory Defendants were present when Plaintiff was escorted to J-2 dorm. In contrast, Plaintiff did not testify as to any involvement of Defendant Ford beyond the initial burst of pepper spray.
“[S]upervisors are liable under § 1983 either when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional violation.” McNeely v. Wilson, 649 Fed.Appx. 717, 724 (11th Cir. 2016) (per curiam) (alteration in original) (quoting Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010)). “A causal connection can be established by, inter alia, facts which support an inference that the supervisor directed the subordinates to act unlawfully or knew that the subordinates would act unlawfully and failed to stop them from doing so.” Id.
Relevant here, when a prisoner is subjected to “special confinement that causes him to suffer increased effects of environmental conditions - here, the pepper spray lingering . . . on him . . . can constitute excessive force.” Danley, 540 F.3d at 1308-09 (collecting cases). A supervisor may be held liable where there is evidence that they knew a prisoner had been sprayed with pepper spray, knew the prisoner complained about the effects of the pepper spray, and did nothing to allow proper decontamination. McNeeley, 649 Fed.Appx. at 724.
Factor 1: Need for force
The Eleventh Circuit has held that, “after a detainee [is] . . . no longer a disruption or threat, a jailer's refusal to permit proper decontamination violate[s] a clearly established right[.]” Id. at 722 (citing Danley, 540 F.3d at 1313). Here, Plaintiff was clearly no longer a threat while he was examined by the nurse in handcuffs in the yard outside dormitory J. Plaintiff's deposition testimony that he cooperated with Defendant Ford's request to cuff up after the initial pepper spray is the only evidence before the Court as to whether the Supervisory Defendants needed to use force against Plaintiff. As such, the Court finds that there was no longer a need for force once Plaintiff was in the yard and this factor weighs against the Supervisory Defendants.
Factor 2: Relationship between the need for force and the force applied
“Once a prisoner has stopped resisting there is no longer a need for force, so the use of force thereafter is disproportionate to the need.” Danley, 540 F.3d at 1309. Here, Plaintiff was no longer resisting, and Plaintiff has alleged that the Supervisory Defendants did not permit him to decontaminate for over twenty (20) hours after the initial spray. As such, the Court finds that the relationship between the need for force and the force applied weighs against the Supervisory Defendants.
Factor 3: Injury
While a short, initial burst of pepper spray may be constitutionally permitted, forcing an inmate “to wait too long before allowing him to shower” causes an inmate to suffer “needless pain, breathing problems, and inflamed eyes, ” all of which violates the Eighth Amendment. Id. at 1311. Plaintiff testified that the pepper spray caused him, an asthmatic, to have shortness of breath, burning eyes, swelling of his face, and burning skin, and while most of the alleged injuries resolved at some point shortly after the initial pepper spraying, the burning skin continued until he was permitted to shower, approximately twenty (20) hours later. See McNeeley, 649 Fed.Appx. at 724 (finding supervisory defendants liable where they allowed a prisoner-plaintiff to go without decontamination for “several hours”). As such, the Court finds that Plaintiff's injury weighs against the Supervisory Defendants.
Factor 4: Extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible official based on the facts known to them
Plaintiff testified that, while in the yard for his examination by the nurse, he stated that he was going to sue, but there is no evidence and no allegation that he was uncooperative after he was placed in handcuffs. At this stage of litigation, the Court must construe Plaintiff's deposition testimony in the light most favorable to Plaintiff, and it is the only evidence presently in the case. Snellgrove, 2016 WL 10518966 at *4. Therefore, there is no evidence that Plaintiff was a threat to the safety of staff and inmates from the time at which he was placed in handcuffs immediately following the initial pepper spraying. As such, the Court finds that the extent of the threat to the safety of staff and inmates weighs against the Supervisory Defendants.
Factor 5: Efforts made to temper the severity of a forceful response
Plaintiff testified that the Supervisory Defendants were present when Unit Manager Smith stated that Plaintiff should be taken to the showers to decontaminate but that none of the
Supervisory Defendants instructed their subordinates to actually do so. Plaintiff also testified that he was not permitted to shower for twenty (20) hours after he was pepper sprayed, and that the strip cell he was placed in did not have running water. “It is excessive force for a jailer to continue using force against a prisoner who already has been subdued.” Nasseri, 373 Fed.Appx. at 19 (citing Danley, 540 F.3d at 1309). As such, the Court finds that the efforts made to temper the severity of a forceful response weighs against the Supervisory Defendants.
In summary, Plaintiff testified that the Supervisory Defendants knew he had been sprayed with pepper spray. He further testified that all were present when he was examined in the yard thereafter and when Plaintiff responded in the negative when asked by the nurse if he was “all right.” Plaintiff testified that the Supervisory Defendants were told by Unit Manager Smith that Plaintiff should be decontaminated after being sprayed by pepper spray. Plaintiff also testified that the Supervisory Defendants were present when he was escorted to J-2 dorm, but none of them said that Plaintiff needed to be decontaminated, and that he was not decontaminated until twenty (20) hours after the initial pepper spraying.
The Supervisory Defendants submit no affidavits or declarations but have submitted a Statement of Undisputed Material Facts. (Doc. 39-1). However, Plaintiff's deposition testimony is evidence which creates a genuine dispute of material fact. Wade, 2020 WL 7130791 at *9 (quoting Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (“It is not the court's role to weigh conflicting evidence or to make credibility determinations.”)). Accordingly, the Supervisory Defendants are not entitled to summary judgment as a matter of law.
Qualified Immunity
Defendants also raised the defense of qualified immunity. (Docs. 36-1, pp. 14-16; 39-2, pp. 13-15). “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 to Defendant Ford, the Court found no constitutional violation based on the facts provided. Defendant Ford is, therefore, also entitled to qualified immunity. Baltimore v. City of Albany, Ga., 183 Fed.Appx. 891, 896 (11th Cir. 2006) (per curiam).
As to the Supervisory Defendants, the Court found a constitutional violation. Therefore, the “next step in the qualified immunity analysis is usually to determine whether the right was clearly established.” Danley, 540 F.3d at 1310. However, in the Eleventh Circuit, “a defense of qualified immunity is not available in cases alleging excessive force in violation of the Eighth Amendment, because the use of force “maliciously and sadistically to cause harm” is clearly established to be a violation of the Constitution by the Supreme Court decisions in Hudson and Whitley.” Skrtich v. Thornton, 280 F.3d 1295, 1301 (11th Cir. 2002) (citations omitted). “The only question, then, is whether the plaintiff has alleged facts sufficient to survive a motion . . . for summary judgment. If he has done so, that is the end of the inquiry.” Id.; see also Pullen v. Osceola Cnty., 861 Fed.Appx. 284, 290 (11th Cir. 2021) (quoting Skrtich, 280 F.3d at 1301) (“There is simply no room for a qualified immunity defense when the plaintiff alleges such a violation.”); McNeely, 649 Fed.Appx. at 724 (holding that the supervisory defendants were not entitled to qualified immunity on the prisoner-plaintiff's supervisory liability claim when the prisoner-plaintiff alleged the supervisory defendants knew the prisoner-plaintiff had been pepper sprayed, were present when he complained about the effects of the pepper spray, and did nothing to ensure he was properly decontaminated). Therefore, the Court finds that the Supervisory Defendants are not entitled to qualified immunity.
Conclusion
Therefore, for the above stated reasons, it is RECOMMENDED that Defendant Ford's Motion for Summary Judgment (Doc. 36) be GRANTED, and it is RECOMMENDED that the Supervisory Defendants' Motion for Summary Judgment (Doc. 39) be DENIED.
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.