Opinion
5:22-cv-00220-MTT-CHW
01-19-2024
DEMARCO WYMBS, Plaintiff, v. Warden TARMARSHE SMITH, et al., Defendants.
PROCEEDINGS UNDER 42 U.S.C. § 1983 BEFORE THE U.S. MAGISTRATE JUDGE
REPORT & RECOMMENDATION
CHARLES H. WEIGLE, UNITED STATES MAGISTRATE JUDGE
Plaintiff Demarco Wymbs, a state inmate, filed a pro se civil rights complaint seeking relief under 42 U.S.C. § 1983 regarding his confinement in Macon State Prison. (Docs. 1, 5). Defendants White, A. Williams, C. Williams, and Lockett filed a motion for summary judgment citing Plaintiff's failure to exhaust his administrative remedies. (Doc. 36). Defendants also argue that Plaintiff's claims for money damages against them in their official capacities are barred by the Eleventh Amendment and that Plaintiff's de minimis injuries do not support a claim for damages. (Id.) Plaintiff filed a cursory response arguing against the motion. (Doc. 38). As discussed below, Defendants waived any exhaustion defense because they did not specifically raise it in their answer. However, they are entitled to judgment in their official capacities and regarding Plaintiff's claim for compensatory damages. It is therefore RECOMMENDED that Defendants' motion for summary judgment (Doc. 36) be GRANTED in part and DENIED in part.
RELEVANT FACTS
Plaintiff is a state inmate with the Georgia Department of Corrections who has served over 20 years of a life sentence. (Doc. 36-4, p. 19-22, 59, 95).During the incident giving rise to this action, Plaintiff was housed at Macon State Prison (MSP). (Doc. 36-1, ¶ 3, 4). Defendants were CERT members. (Doc. 36-4, p. 55). On the morning of January 13, 2021, Defendant A. Williams, and eventually the other Defendants, approached Plaintiff's cellmate about a pair of eyeglasses and whether they had been stolen from a staff member. (Id., p. 63-68). Later that day during yard call, Plaintiff's cellmate approached a senior officer about the eyeglasses incident, and Defendant accompanied him. (Id., p. 68-71). There were also a few other inmates in line to speak to the officer. (Id., p. 71, 83). Towards the end of yard call, for reasons unknown to Plaintiff, Defendants called Plaintiff and other inmates over and ordered them to do push-ups and squats. (Id., p. 74-76, 84-85). Plaintiff, who believed he committed no infraction and that push-ups were unwarranted under prison policy, told Defendant White he was not going to do the push-ups. (Id., p. 76-81). Plaintiff turned to the wall to be cuffed and told Defendant White to take Plaintiff to the hole. (Id.) Plaintiff stated that Defendant White then threatened to have the Plaintiff killed. (Id., p. 79, 106111). As Defendants were escorting Plaintiff back to the dorm, Plaintiff tried to get out ahead of Defendants to inform the dorm what the plan was, at which point he was tased by Defendants Lockett, C. Williams, and White in quick succession. (Id., p. 111-119). Defendant A. Williams witnessed the incident. (Id., p. 119). Plaintiff stated he was given no warning prior to the taser deployment. (Id., p. 112). He was not handcuffed when he was tased, but by the time he was picked up off the floor, he was handcuffed. (Id., p. 114, 119). He was not taken to medical and did not submit any medical requests for treatment. (Id., p. 144-145). He described his injuries as “nothing major” and admits he suffered only minor scratches and scars. (Docs. 39-1, ¶ 26; 36-4, p.162-163, 165). At his deposition, he admitted that push-ups are not a violation of policy and explained that his refusal stemmed solely from his belief that he had not committed an infraction. (Doc. 36-4, p. 101-103, 167).
The cited page numbers correspond to the page numbers of Plaintiff's deposition transcript.
Plaintiff filed four grievances in connection to this incident. On January 14, 2021, Plaintiff filed Grievance No.: 319231 complaining that on January 13, 2021, three CERT officers tased him for no reason, that “Cert COII Williams” threatened to have the dorm kill him, and that he was refused any medical treatment. (Docs. 39-1, ¶ 17; 36-3, p. 41). The warden rejected the grievance for failing to comply with policy, but he still referred the grievance to the Criminal Investigations Division (CID) due to the nature of Plaintiff's allegations. (Id., ¶¶ 18, 19). Plaintiff acknowledged the warden's rejection and the CID referral on January 29, 2021. (Id., ¶ 20). Because the grievance was rejected before it was referred, the grievance decision was appealable and did not end the grievance process. (Id., ¶ 14); see also (Doc. 39-3, p. 22, 24) (explaining that an accepted and referred grievance ends the grievance process and that offenders may not appeal accepted grievances forwarded to CID). Plaintiff did not appeal the rejection and instead filed three more grievances seeking an update on Grievance No. 319231 and the CID investigation. (Doc. 39-1, ¶¶ 16, 21-22). He either dropped or did not appeal these later grievances. (Id., ¶¶ 23-24).
In his response to the Defendants' motion, Plaintiff stated that he stands by all his testimony and contends the CID had evidence proving his case. (Doc. 38). He also argues that he “followed[ed] all measures” to file this suit. (Id.) He did not specifically rebut any portions of Defendants' motion. (Id.)
SUMMARY JUDGMENT STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper “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). The party moving for summary judgment bears the burden of informing the Court of the basis for its motion, and of citing “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” that support summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 32224 (1986). In resolving motions for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. Tolan v. Cotton, 572 U.S. 650, 652 (2014).
Plaintiff responded to Defendants' motion for summary judgment. (Doc. 38). However, he did not specifically respond to the Defendants statement of material facts as required by Local Rule 56. This failure could trigger consequences under both the Federal Rules of Civil Procedure and this Court's Local Rules. Federal Rule of Civil Procedure 56(e)(2) provides that if a party “fails to properly address another party's assertion of fact as required by Rule 56(c),” then the Court may “consider the fact undisputed for purposes of the motion.” Rule 56(e)(2). This Court's Local Rule 56 similarly provides: “All material facts contained in the movant's statement which are not specifically controverted by specific citation to particular parts of materials in the record shall be deemed to have been admitted, unless otherwise inappropriate.” MDGA Local Rule 56. Finally, Federal Rule of Civil Procedure 56(e)(3) provides that the Court may “grant summary judgment if the motion and supporting materials-including the facts considered undisputed- show that the movant is entitled to” summary judgment. Rule 56(e)(3). See also Urdaneta v. Wells Fargo Bank, N.A., 734 Fed.Appx. 701, 704 (11th Cir. 2018). Pursuant to Rule 56(c), the court “need consider only the cited materials, but it may also consider other materials in the record.” Although Plaintiff did not specifically respond to the Defendant's statement of facts, the entire record has been considered as permitted by Rule 56(c)(3).
ANALYSIS
Defendants filed their motion for summary judgment (Doc. 36) arguing that Plaintiff failed to exhaust his claims, that any claims must be dismissed against them in their official capacities, and that Plaintiff's injuries do not support recovery for compensatory and punitive damages pursuant to the Prison Litigation Reform Act (PLRA). As discussed below, because Defendants failed to raise an exhaustion defense in their answer, any such defense is waived. They are entitled to judgment as to any claims against them in their official capacities and for compensatory damages. Plaintiff may, however, maintain a claim for punitive damages.
1. Failure to exhaust administrative remedies is an affirmative defense, which Defendants waived by not raising it in their answer.
Defendants argue that Plaintiff failed to exhaust his administrative remedies as required by the PLRA because he did not fully appeal the primary grievance filed about the January 13, 2021 incident giving rise to his claims or any of the three remaining follow-up grievances. (Doc. 36-2, p. 5-15). Defendants did not raise Plaintiff's failure to exhaust in their answer (Doc. 33), which was their first responsive pleading. The failure to raise an affirmative defense in answer means that Defendants waived their exhaustion defense, and they are not entitled to dismissal of Plaintiff's claims on this ground.
Rule 8(c) of the Federal Rules of Civil Procedure sets forth a non-exhaustive list of affirmative defenses. Jones v. Bock, 549 U.S. 199, 212 (2007). Case law makes clear that failure to exhaust is an affirmative defense, although it does not specifically appear in the list. Id. (explaining “the usual practice under the federal rules is to regard exhaustion as an affirmative defense”). The “PLRA exhaustion requirement is not jurisdictional...[and instead it is] a non-jurisdictional ‘claim-processing rule,'” which can be forfeited if not raised in the first responsive pleading. Brooks v. Warden, 706 Fed.Appx. 965, 969-970 (11th Cir. 2017) (emphasis in original) (internal citations omitted); see also, Anderson v. Donald 261 Fed.Appx. 254, 255 (11th Cir. 2008) (discussing Jones and Rule 8(c) before recognizing “exhaustion...must be raised in a responsive pleading”). Defendants' answer (Doc. 33) is their first responsive pleading. To preserve a failure to exhaust defense, Defendants must have affirmatively raised it their answer. Failing to do so results in waiver of the defense.
Defendants did not specifically enumerate a failure to exhaust defense in their answer. See (Doc. 33). In their “Ninth Defense,” they reserved the right to raise any other defense as Plaintiff's claims became more particularized. (Id., p. 2). They also denied that Plaintiff appealed any grievance concerning his claims when responding to the individual allegations of Plaintiff's complaint. (Id., p. 3-4). These portions of Defendants' answer do not equate to enumerating a failure to exhaust defense, and they did not place Plaintiff on notice that Defendants could raise the defense. See Hassan v. U.S. Postal Serv., 843 F.2d 260, 263 (11th Cir. 1988) (explaining the purpose of Rule 8(c) is to guarantee the opposing party has notice of any issue to be raised). Defendants, therefore, waived their exhaustion defense when they did not raise it in their answer. See, e.g., Brooks, 706 Fed.Appx. at 969 (considering waiver in terms of Rule 12 motions, but rejecting this Court's conclusion that “a defendant does not waive the exhaustion defense by failing to raise it in the first responsive pleading....”); Alsobrook v. Alvarado, 2014 WL 12640928 (S.D. Fla. Mar. 3, 2014) (finding that defendant waived an exhaustion defense when it was not raised in the first answer). Because Defendants waived Plaintiff's failure to exhaust by failing to enumerate the defense in their answer, Defendants may not raise it now in their summary judgment motion. Defendants' request for dismissalof Plaintiff's claims for failure to exhaust should be denied.
Had Defendants not waived their exhaustion defense, their motion would have been considered as a motion to dismiss even though the defense was raised in a motion for summary judgment. See Bryant v. Rich, 530 F.3d 1368, 1374-1375 (11th Cir. 2008) (explaining that “an exhaustion defense...is not ordinarily the proper subject for a summary judgment; instead; it should be raised in a motion to dismiss, or be treated as such if raised in a motion for summary judgment”) (citations omitted).
Fellow district courts have recognized authority to dismiss a complaint sua sponte if an affirmative defense, like failure to exhaust, appears on the face of the complaint, even when failure to exhaust has been waived or otherwise not raised. See, e.g., Smith v. Coleman, 2020 WL 6577500 (S.D. Ga. July 24, 2020); Woodard v. Adams, 2021 WL 2125279 (S.D. Ga. May 25, 2021) (both screening recommendations by a Magistrate Judge that went on to be adopted by the district court). Contrary to Defendants' argument otherwise (Doc. 36-2, p. 10), the face of Plaintiff's complaint does not resolve whether he fully exhausted. In the grievance section of his complaint, Plaintiff checked “yes” indicating that he did appeal his grievance, but he also suggests that he could not appeal because the forms were unavailable. (Doc. 5, p. 3-4). Because the face of Plaintiff's complaint does not conclusively demonstrate a failure to exhaust, this Court has no authority to sua sponte dismiss his claims.
2. Plaintiff's claims for money damages are barred against Defendants in their official capacities under the Eleventh Amendment.
Defendants also move to dismiss any damages claims against them in their official capacities. (Doc. 36-2, p. 14-15). To the extent that Plaintiff seeks to recover money damages against these Defendants in their official capacities, such claims would be barred by the Eleventh Amendment and 42 U.S.C. § 1983. See generally, Kentucky v. Graham, 473 U.S. 159, 169 n. 17. Defendants were employed by the Georgia Department of Corrections at MSP when the incident underlying Plaintiff's claims occurred. The State of Georgia has not waived sovereign immunity, and § 1983 was not meant to abrogate a state's Eleventh Amendment sovereign immunity; therefore Plaintiff is barred from suing Defendants in their official capacities for damages. Section 1983 itself also precludes any official-capacity claims against Defendants for nominal damages because the state is not a person for under the meaning of § 1983. Moody v. City of Delray Beach, 609 Fed.Appx. 966, 967 (11th Cir. 2015) (quoting Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989)). Section 1983 provides no remedy for the Plaintiff against these Defendants in their official capacities.
3. Defendants are entitled to summary judgment as to Plaintiff's claims for compensatory damages but not for his claims for punitive damages.
Defendants also request summary judgment regarding the damages that Plaintiff is entitled to recover. Under Eleventh Circuit precedent, a physical injury must be more than de minimis before compensatory damages may recovered under the PLRA. Brooks v. Warden, 800 F.3d 1295, 1307 (11th Cir. 2015). Defendants argue that the alleged scars and scratches that Plaintiff sustained in the January 2021 incident are at most de minimis and cannot sustain compensatory or punitive damages. (Doc. 36-2, p. 15-17). As a fellow district court found, there is no basis to suggest “tasers are de minimis force as a matter of law.” Coffman v. Battle, 2019 WL 10303633, *8 (N.D. Ga Jan. 22, 2019). Instead, the nature of the injury must be considered in each case. There is no dispute of fact about the nature of the injuries Plaintiff suffered as a result of the alleged used of force. Plaintiff testified in his deposition that he suffered scratches and small scars from taser prongs, but he did not need medical attention or submit a medical request form seeking treatment for his injuries. (Doc. 36-4, p. 145-146, 149, 162-163, 165). The types of injuries Plaintiff describes have been found to be de minimis. See, e.g., Martin v. Wilkes, 2019 WL 3323333 (S.D. Ga. July 24, 2019) (holding two “little black marks” from being tased without any evidence of lingering issues or pain to be de minimis injury) (citing Buckley v. Haddock, 292 Fed.Appx. 791, 795 (11th Cir. 2008) (describing sixteen small burns from a taser as not severe)). Plaintiff's injuries, as he describes them, are minimal at best. Without more than a de minimis injury, compensatory damages resulting from Plaintiffs claims are not recoverable under the PLRA. Defendants are entitled to summary judgment on this ground.
Defendants also ask the Court to find that they are entitled to summary judgment as to Plaintiff's claim for punitive damages. Defendants set forth no ground for dismissing Plaintiffs punitive damages claim other than Plaintiff's de minimis injury. The Eleventh Circuit has recognized a claim for punitive damages for a constitutional violation even in the absence of a physical injury. Hoever v. Marks, 993 F.3d 1353, 1364 (11th Cir. 2021) (en banc) (“We now hold that § 1997e(e) permits claims for punitive damages without a physical injury requirement.”) Therefore, Plaintiff is authorized to seek punitive damages even without the physical injury necessary to recover compensatory damages. Defendants are not entitled to summary judgment on this ground.
CONCLUSION
Defendants waived any failure to exhaust defense by not raising it in their answer. However, they are entitled to immunity in their official capacities and to judgment as to Plaintiff's compensatory claims. It is RECOMMENDED that Defendants' motion for summary judgment (Doc. 36) be DENIED in part as to Plaintiff's failure to exhaust and Plaintiff's punitive damages claim and GRANTED in part as to Plaintiff's claims against Defendants in their official capacities and any claims for compensatory damages.
OBJECTIONS
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. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. The District Judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are further 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