Opinion
No. CV 604-024.
May 24, 2005
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Plaintiff Freddie Irvin, a pro se litigant, commenced this civil action pursuant to 42 U.S.C. § 1983. The matter is now before the Court on two motions for summary judgment filed by Defendants. (Doc. nos. 90 97). For the reasons stated more fully below, the Court REPORTS and RECOMMENDS that Defendants' motions for summary judgment be GRANTED and that a final judgment be ENTERED in favor of Defendants Hugh Smith, Fred Brown, John Brown, Fred Wilson, Steve Dupree, Larry Brewton, Jimmy Joiner, Mark Green, Ferry Braddy, James Waynick, Tyrone Fair, Michael Byrd, Trace Simmons, Kevin Johnson, Michael McInnis, Anthony Oudems, Ernest Riner, and William Cheatam.
I. UNTIMELY RESPONSE FROM PLAINTIFF
One set of Defendants filed their motion for summary judgment on January 7, 2005, and Defendant Cheatam filed his motion for summary judgment on January 28, 2005. Under Loc. R. 7.5 and 56.1, a party opposing a motion for summary judgment has twenty (20) days to respond after service of the motion. Plaintiff received notice of this response period in the Court's June 14, 2004 Order (doc. no. 16, p. 7) and again in the notices sent out by the Clerk when the summary judgment motions were filed. (Doc. nos. 93 100). In his first motion for an extension of time, bearing a signature date of January 27, 2005, Plaintiff requested a sixty-day extension of time. (Doc. no. 101). Instead, the Court granted an extension of time until March 4, 2005. (Doc. no. 102). Plaintiff then requested an additional thirty-day extension of time. (Doc. no. 109). Defendant Cheatam opposed that motion, pointing out that Plaintiff had already been given nearly three times the rule-prescribed period for responding to the first motion and nearly twice the prescribed time for responding to the second motion. (Doc. no. 100, p. 2). Nevertheless, the Court granted Plaintiff an extension until March 25, 2005 to file his responses but specifically warned him that if his responses were not filed by that date, the summary judgment motions would be deemed unopposed under Loc. R. 7.5. (Doc. no. 112).
Plaintiff did not file any responses by March 25, 2005. However, he did submit a response to the first summary judgment motion in a document filed with the Court on April 18, 2005 and bearing a signature date of April 8, 2005. (Doc. nos. 115-17). In another document filed with the Court on April 28, 2005 but also bearing a signature date of April 8, 2005, Plaintiff stated his intention not to respond to Defendant Cheatam's motion for summary judgment (the second motion) and acknowledged that he had missed the Court's March 25th deadline. (Doc. no. 118, Brf., p. 2). Contrary to repeated reminders from the Court about serving all documents on opposing attorneys (see, e.g., doc. no. 16, p. 5 doc. no. 102, p. 1 n. 2), Plaintiff did not serve his summary judgment response or concession to Defendant Cheatam's motion on Defendant Cheatam's counsel.
Although pro se litigants are afforded leniency in the construction of their filings, they are required to conform to procedural rules. Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002) ( per curiam); see also Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) ("[O]nce a pro se litigant is in court, he is subject to the relevant law and rules of court. . . .). Here, as outlined above, Plaintiff was repeatedly informed of the substantive and procedural requirements for responding to the summary judgment motions. Cf. Moore v. State of Fla., 703, F.2d 516, 520-21 (11th Cir. 1983) (recognizing unique position of pro se prisoner inmates and requiring explicit notice to such litigants of deadlines related to summary judgment motions). Plaintiff was specifically informed that if his responses were not filed by March 25, 2005, the motions would be deemed unopposed. His response to the first summary judgment motion was prepared, at the earliest, on April 8, 2005 — well after the March 25th deadline. Under these circumstances, the Court may disregard Plaintiff's untimely filings. Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (affirming district court's decision to disregard filings from pro se prisoners that were submitted nine days after court-imposed deadline); see also Young v. City of Palm Bay, Fla., 358 F.3d 859, 863-64 (11th Cir. 2004) (refusing to consider untimely filings where counsel, after receiving repeated extensions of time, failed to meet court-imposed deadlines). As the Sixth Circuit explained, "Where, for example, a pro se litigant fails to comply with an easily understood court-imposed deadline, there is no basis for treating that party more generously than a represented litigant." Pilgrim, 92 F.3d at 416. As counsel for Defendant Cheatam argued, "While Mr. Cheatam is mindful of the difficulties facing pro se inmate litigants, he is also entitled to have this . . . matter concluded as expeditiously as possible." (Doc. no. 110, p. 2).
Moreover, as evidenced by Plaintiff's numerous cases filed in the Southern District, he is no stranger to litigating under the Federal Rules of Civil Procedure and the Local Rules of the Southern District. See, e.g., Irvin v. Wetherington, CV 603-001 (S.D. Ga. Jan. 8, 2003); Irvin v. Hodges, CV 603-014 (S.D. Ga. Feb. 12, 2003).
The Court repeatedly extended Plaintiff's deadlines well-beyond the norm for responding to the motions for summary judgment. He not only unilaterally ignored the March 25th deadline, but he also failed to comply with the Local Rule (of which he had been explicitly informed) requiring that he serve all papers on all opposing counsel. Therefore, in accordance with its March 18, 2005 Order, because Plaintiff did not respond to the summary judgment motions by March 25, 2005, they are deemed unopposed. The Court now turns its attention to the substance of the motions.
II. FACTS
Plaintiff is an inmate incarcerated at Georgia State Prison ("GSP") in Reidsville, Georgia. During the time periods relevant to this lawsuit, Defendants held the following positions at GSP: Hugh Smith, Warden; Fred Brown, Deputy Warden of Security; John Brown, Chief Correctional Supervisor; Fred Wilson, Counselor for the Special Management Unit ("SMU") where Plaintiff was housed; Steve Dupree, Acting Unit Manager of the SMU; Larry Brewton, Officer-In-Charge of the SMU; Jimmy Joiner, Supervisor of M-Building where Plaintiff was housed within the SMU; William Cheatam and Mark Green, Physician's Assistants; Ferry Braddy, Lieutenant; and, James Waynick, Tyrone Fair, Michael Byrd, Trace Simmons, Kevin Johnson, Michael McInnis, Anthony Oudems, and Ernest Riner, Correctional Officers.
According to the amended complaint, Defendant Hugh Smith ordered that force be used against Plaintiff (for an unspecified reason) on June 21, 2002. (Doc. no. 10, ¶ 24.) Defendants Fair, McInnis, Waynick, Byrd, and Oudems allegedly carried out those instructions by beating, punching, and shocking Plaintiff with an electric shield. (Id. ¶ 25). During the course of these events, Plaintiff alleges that Defendant Byrd forcibly spread Plaintiff's buttocks, and then upon removal from his cell, Plaintiff contends that Defendant Byrd fondled Plaintiff's buttocks and penis. (Id. ¶¶ 26, 28). Plaintiff maintains that Defendants Brewton, Dupree, Smith, Joiner, Wilson, and Braddy watched the beating without attempting to stop it. (Id. ¶ 29).
Plaintiff also maintains on July 1, 2002, Defendants Smith and Fred Brown again ordered that force be used against Plaintiff, resulting in Defendant Johnson, McInnis, and Waynick holding Plaintiff down while Defendant Simmons shocked him with an electric shield and Defendant Byrd hit him on the back of the head with handcuffs. (Id. ¶ 34). Plaintiff contends that Defendant John Brown knew that Defendant Byrd intended to beat Plaintiff with the handcuffs but did not stop him from entering Plaintiff's cell and that Defendant Wilson videotaped the beating did not intervene to stop it. (Id. ¶¶ 34-35). According to Plaintiff, this beating resulted in serious injuries, but Defendant Cheatam performed only a cursory examination and, along with Defendant Green, failed to provide Plaintiff adequate treatment for his injuries. (Id. ¶¶ 35, 38-39). Plaintiff also alleges that Defendants Joiner, Riner, Braddy, Brewton, Smith, and Fred Brown refused to obtain medical treatment for his obvious injuries resulting from the altercation with the correctional officers. (Id. ¶ 37).
On the other hand, Defendants present a different picture. Defendants Smith, Fred Brown, Braddy, McInnis, Waynick, Oudems, Byrd, Brewton, Dupree, Joiner, Simmons, Johnson, John Brown, and Wilson aver that any hands-on force that Plaintiff alleges they were involved with occurred because Plaintiff refused to follow instructions for exiting his cell for inspection. (Doc. no. 92, Affidavits attached as Exs. A-B, D-H, J-L, N-O, Q-R; doc. no. 96, Affidavits attached as Exs. D2, G2). According to Defendants, Plaintiff was housed in the SMU because he "had serious behavioral problems." (Doc. no. 92, Ex. A, Smith Aff. ¶ 3). Moreover, it is standard procedure for correctional officers to order SMU inmates to turn on their cell lights prior to inspection so that the officers can see if the inmates possess contraband or weapons that could be used against the officers. (Id.). If, as was the case with Plaintiff on June 21 and July 1, 2002, an inmate refuses to turn on his cell light prior to inspection and refuses orders to perform the actions necessary to come out of the cell — including submitting to a strip search that entails a visual examination of the inmate-correctional officers would be authorized to forcibly extract an inmate from his cell. (Id. ¶ 4).
Nearly all Defendants submitted affidavits in support of their motions for summary judgment, and according to the alleged type of involvement in the contested incidents ( e.g., witness or correctional officer applying force), most are substantially similar in form. For the sake of brevity, when the same or substantially similar factual statements are contained in more than one affidavit, the Court will cite to only one as a demonstrative example in support of the noted proposition.
Here, Defendants assert that on June 21 and July 1, 2002, Plaintiff repeatedly refused Defendant Braddy's instructions to turn on his light for inspection and prepare to leave his cell so that it could be searched. (Doc. no. 96, Ex. D2, Braddy Aff. ¶¶ 3-4). Thus, correctional officers were ordered to use hands-on force to remove Plaintiff from his cell. (Id.). However, Defendants aver that they used only the amount of force necessary to secure Plaintiff, and Defendant Byrd specifically denies performing a digital body cavity search of Plaintiff or otherwise touching Plaintiff's scrotum or penis. (Doc. no. 90, Ex. H, Byrd Aff. ¶¶ 3-5).
Moreover, Plaintiff was examined by medical personnel after each use of force. Although Plaintiff was "agitated" and "violent" during the examination after the June 21st incident, a visual examination by medical personnel revealed that his skin was intact, there were no specific complaints voiced, and no abnormal findings were made. (Doc. no. 90, Ex. I, Incident Rpt. for June 21, 2002). After the July 1, 2002 incident, Defendant Cheatam visually examined Plaintiff and found that there was a small amount of blood on the left side of Plaintiff's head, but there was no active bleeding. (Id., Ex. P, Incident Rpt. for July 1, 2002). Although Plaintiff spit in a correctional officer's face during Defendant Cheatam's examination, he continued on to record that Plaintiff was alert, oriented, ambulatory, and had no indentations. (Id.; doc. no. 97, Cheatam Aff. ¶ 13). Plaintiff was instructed to cleanse the cut on the side of his head and follow-up at sick call the next morning. (Doc. no. 90, Ex. P; doc. no. 97, Cheatam Aff. ¶ 13). Plaintiff actually returned to sick call that same night complaining of skinned knees that were determined to be superficial lacerations requiring only the application of mild antiseptic and band-aids. (Doc. no. 90, Ex. S, Medical Records, p. 26). Notably, Defendant Green did not start working at GSP until May 1, 2003 and first treated Plaintiff on May 29, 2003. (Id. at 15; Ex. T, Green Aff. ¶ 3).
Defendant Cheatam conducted a visual examination because Plaintiff was still considered a threat. (Doc. no. 97, Cheatam Aff. ¶ 12).
On July 11, 2002, Defendant Cheatam again examined Plaintiff because he had submitted a sick call request complaining, inter alia, of a headache and a backache. (Medical Records, p. 25; Cheatam Aff. ¶ 16). Upon examination, Defendant Cheatam found that Plaintiff's back was non-tender with full flexion, extension and side to side bending; he exhibited a normal gait and posture, with no injury to his knees; and, his head was not tender or swollen. (Medical Records, p. 25). Defendant Cheatam prescribed ten days of Motrin and rest. (Id.). Plaintiff refused to attend a scheduled sick call on July 29, 2002. (Id. at 24). Subsequent medical records reveal complaints of headaches on September 9, 2002 and October 29, 2002 (id. at 21, 24), but no persistent complaints of headaches are found in his medical records, despite multiple visits to the medical department. (See, e.g., id. at 10, 15, 17).
Defendants have also submitted a verified copy of Standard Operating Procedure ("SOP") IIB08-0001 concerning use of force on inmates which confirms that force may be used to "accomplish legitimate and necessary functions," "to prevent injury," and to compel an inmate to act or refrain from acting — "only to the extent necessary to maintain positive control of the inmate." (Doc. no. 90, Ex. C, p. 1). SOP IIB08-0001 also requires that after the use of force, an inmate shall be examined by medical staff. (Id. at 10). Concerning the procedure to be followed for conducting strip searches of inmates before they leave their cells, Defendants have submitted a verified copy of SOP IIB01-0013, which explains the procedure for conducting a visual search and sets forth the requirement that any manual body cavity search be conducted by medical personnel. (Id., Ex. M, pp. 5-6).
III. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only if "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Applicable substantive law identifies which facts are material in a given case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court is mindful that for purposes of summary judgment, only disputes about material facts are important. That is, "[t[he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1244 (11th Cir. 2003) (citation omitted).
When seeking summary judgment, the movant must show, by reference to materials on file, that there are no genuine issues of material fact to be decided at a trial. Clark v. Coats Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). If the burden of proof at trial rests with the movant, to prevail at the summary judgment stage, the movant must show that, "on all the essential elements of its case . . ., no reasonable jury could find for the nonmoving party." United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) ( en banc). On the other hand, if the non-moving party has the burden of proof at trial, the movant may prevail at the summary judgment stage either by negating an essential element of the non-moving party's claim or by pointing to specific portions of the record that demonstrate the non-moving party's inability to meet its burden of proof at trial. Clark, 929 F.2d at 606-08 (explaining Adickes v. S.H. Kress Co., 398 U.S. 144 (1970) and Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). Merely stating that the non-moving party cannot meet its burden at trial is not sufficient. Clark, 929 F.2d at 608. Evidence presented by the movant is viewed in the light most favorable to the non-moving party. Adickes, 398 U.S. at 157.
If the moving party carries the initial burden, then the burden shifts to the non-moving party "to demonstrate that there is indeed a material issue of fact that precludes summary judgment."Clark, 929 F.2d at 608. The non-moving party cannot carry its burden by relying on the pleadings or by repeating conclusory allegations contained in the complaint. Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir. 1981). Rather, the non-moving party must respond either by affidavits or as otherwise provided in Fed.R.Civ.P. 56. "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255 (quoting Adickes, 398 U.S. at 158-59). A genuine issue of material fact is said to exist "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248.
IV. DISCUSSION
A. Excessive Use of Force
According to Defendants' unrebutted affidavits, prior to the use of force on both June 21 and July 1, 2002, Plaintiff refused to comply with the order to perform all necessary actions to come out of his cell so that it could be searched. Defendants also maintain that only the amount of force necessary to secure Plaintiff was used. (See, e.g., doc. no. 90, Ex. E, McInnis Aff. ¶¶ 4-5; doc. no. 96, Ex. D2, Braddy Aff. ¶¶ 3-4).
"The Eighth Amendment's proscription of cruel and unusual punishments also governs prison officials' use of force against convicted inmates." Campbell v. Sikes, 169 F.3d 1353, 1374 (11th Cir. 1999). To prevail on an excessive use of force claim, Plaintiff must satisfy both an objective and subjective component. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). Objectively, Plaintiff must show that he suffered a "sufficiently serious" deprivation that was harmful enough to establish a constitutional violation. Id. Although there is no requirement that a plaintiff suffer significant injury, "` de minimis' uses of physical force" are beyond constitutional recognition, provided that the use of force is not of a sort "repugnant to the conscience of mankind." Hudson v. McMillian, 503 U.S. 1, 9-10 (1992); see also Riley v. Dorton, 115 F.3d 1159, 1167 (4th Cir. 1997) ("An injury need not be severe or permanent to be actionable . . . but it must be more than de minimis."). The Supreme Court has explained that not "every malevolent touch by a prison guard gives rise to a federal cause of action." Hudson, 503 U.S. at 9 ("Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights." Id. (citation omitted)).
Notably, however, the absence of injury alone, is not a sufficient basis upon which to dismiss an Eighth Amendment claim.Hudson, 503 U.S. at 4-7.
Subjectively, Plaintiff must show that the actions taken involved the unnecessary and wanton infliction of pain. See Whitley v. Albers, 475 U.S. 312, 319 (1986). That is, "force does not violate the Eighth Amendment merely because it is unreasonable or unnecessary: `The infliction of pain in the course of a prison security measure . . . does not amount to cruel and unusual punishment simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable, and hence unnecessary in the strict sense.'" Campbell, 169 F.3d at 1374 (quoting Whitley, 475 U.S. at 319). Rather, the Court must consider "`whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.'" Harris v. Chapman, 97 F.3d 499, 505 (11th Cir. 1996) (quoting Hudson, 503 U.S. at 7). Moreover, the use of restraints is permitted to control inmates who are causing a disturbance, attempting to incite other prisoners, or who represent a danger to themselves or others. Williams v. Burton, 943 F.2d 1572, 1575-76 (11th Cir. 1991) ( per curiam).
The analysis of the subjective component of an Eighth Amendment excessive force claim is contextual and requires consideration of many factors: (1) the extent of injury, (2) the need for the application of force, (3) the relationship between the need and the amount of force used, (4) the threat reasonably perceived by the responsible officials, and (5) any efforts made to temper the severity of a forceful response. Hudson, 503 U.S. at 7;Campbell, 169 F.3d at 1375 (quoting Whitley, 475 U.S. at 321). Any action taken should be viewed in light of the wide-ranging deference accorded prison officials acting to preserve discipline and institutional security. Hudson, 503 U.S. at 6.
For example, use of an appropriate degree of force to compel compliance with a valid order is justified. Brown v. Smith, 813 F.2d 1187, 1189 (11th Cir. 1987).
Despite this deference to allow the application of preventative measures intended to reduce the incidences of breaches of prison discipline, an Eighth Amendment violation occurs when the force used was not necessary to maintain order or discipline. Skrtich v. Thornton, 280 F.3d 1295, 1301-02 (11th Cir. 2002). In addition, any "officer who is present at the scene and who fails to take reasonable steps to protect the victim from another officer's use of excessive force, can be held liable for his nonfeasance." Id. at 1302 (citation and internal quotation omitted).
Here, Defendants have submitted affidavits outlining Plaintiff's refusal to follow the required procedure exiting a cell prior to inspection. As a result, hands-on force was used to extract Plaintiff from his cell. Although Plaintiff claims substantial injury, the medical reports show no noted injuries after the June 21st incident and only a small abrasion with no active bleeding after the July 1st incident. (Doc. no. 90, Exs. I P). Simply put, the evidence establishes that Plaintiff refused to comply with a routine order from prison officials to perform actions designed to make sure that while housed in the SMU because of serious behavioral problems, he was not hiding contraband or weapons prior to exiting his cell. Defendants then used only the amount of force necessary to gain control of Plaintiff and restore order during inspection.
Notably, Defendant Fair was not even present during the June 21st and July 1st incidents in which Plaintiff accuses him of using excessive force. (Doc. no. 90, Ex. H, Byrd Aff. ¶¶ 3, 5; doc. no. 96, Ex. D2, Braddy Aff. ¶¶ 3-4).
Likewise, no genuine issue of material fact exists regarding the alleged failure to intervene in the two episodes of the use of force on the part of Defendants Smith, Brewton, Dupree, Joiner, Wilson, and Braddy. These Defendants have submitted affidavits stating that the force they observed being used against Plaintiff was only the amount necessary to secure Plaintiff after his refusal to comply with an order designed to promote the safe operation of inspections in the SMU; for those Defendants who did not specifically recall the June 21st and July 1st episodes, they averred that had they seen any excessive force, there would have been a written report detailing the events, but there are no such reports. (See doc. no. 90, Exs. A, J, K, L, and R; doc. no. 96, Ex. D2). Moreover, as explained above, there is no genuine issue of material fact regarding the use of force: the force to which Plaintiff was subjected was not excessive and resulted from Plaintiff's admitted failure to comply with an order to perform acts done to make sure that he was not in possession of contraband and was not a security risk prior to coming out of his cell. The force was used to maintain discipline, not for malicious purposes. Defendants Smith, Brewton, Dupree, Joiner, Wilson, and Braddy cannot be held liable for failing to intervene to stop the use of excessive force when there was no excessive force used, and therefore, they are entitled to summary judgment on Plaintiff's failure to intervene claim.
B. Deliberate Indifference to a Serious Medical Need
As with Plaintiff's claim for use of excessive force, a prisoner's claim of deliberate indifference to a serious medical need must satisfy both an objective and a subjective component.See Farmer, 511 U.S. at 834. To state the proposition differently, Eighth Amendment liability cannot be based on simple negligence or lack of due care, but rather requires some sort of conscious disregard of a serious and imminent risk. Id. at 835-39. Deliberate indifference that would violate the Eighth Amendment requires that Plaintiff show that Defendants knew about and disregarded an excessive risk to his health or safety. Id. at 837. When subjectively weighing whether a defendant has been deliberately indifferent, the courts require a plaintiff to show "more than mere negligence," and look for "obduracy and wantonness, not inadvertence or error in good faith." Adams v. Poag, 61 F.3d 1537, 1543 (11th Cir. 1995). Moreover, "[e]vidence must support a conclusion that a prison physician's harmful acts were intentional or reckless." Hinson v. Edmond, 192 F.3d 1342, 1345 (11th Cir. 1999), amended on other grounds, 205 F.3d 1264 (11th Cir. 2000).
Every claim by a prisoner of inadequate medical treatment does not equate to a violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 105 (1976). Stated another way, mere allegations of negligence or malpractice do not amount to deliberate indifference. Campbell, 169 F.3d at 1363-72 (explaining that medical malpractice cannot form the basis for Eighth Amendment liability); Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991). Furthermore, the Eighth Amendment does not mandate that the medical care provided to the prisoner "be perfect, the best obtainable, or even very good." Harris, 941 F.2d at 1510 (quoting Brown v. Beck, 481 F. Supp. 723, 726 (S.D. Ga. 1980) (Bowen, J.)). Neither does a mere difference in opinion between prison medical officials and the inmate as to the latter's diagnosis or course of treatment support a claim of cruel and unusual punishment. Harris, 941 F.2d at 1505; Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989). That is, the burden of proving deliberate indifference cannot be met simply by arguing that an inmate wanted a different type of treatment.See Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir. 1985) ("Where a prisoner has received . . . medical attention and the dispute is over the adequacy of treatment, federal courts are generally reluctant to second guess medical judgments. . . ."Id. (citation omitted)).
Here, Plaintiff asserts that he was denied medical care after he was forcibly extracted from his cell on July 1, 2002 because Defendant Cheatam performed only a visual examination and did not order the x-rays that Plaintiff thought were necessary. However, the medical records and incident report containing medical observations establish that Plaintiff's claims against Defendant Cheatam amount simply to a disagreement over the type of treatment provided. The medical report of the examination conducted after the July 1, 2002 use of force incident (the only one of which Defendant Cheatam is alleged to have participated) shows only the existence of a small laceration on the side of Plaintiff's face that was not actively bleeding. (Doc. no. 90, Ex. P). Plaintiff was given instructions on cleaning the cut and returning to sick call if necessary. Defendant Green was not even working at GSP at the time Plaintiff claims he failed to properly treat him. (Doc. no. 90, Ex. T, Green Aff. ¶ 3). To the extent Plaintiff claims he had recurring headaches after the July 1st episode that required having x-rays performed, medical records show that Defendant Cheatam prescribed pain killers when Plaintiff complained. (See, e.g., Medical Records, pp. 21, 24). However, there is nothing in the record to indicate that Plaintiff's intermittent complaints of headaches were a sign of an objectively serious problem that Defendant Cheatam consciously disregarded or that Plaintiff's condition otherwise warranted some treatment different than that prescribed by Defendant Cheatam.
Plaintiff's allegations concerning his medical care after the June 21st incident are not addressed herein because the person alleged to be responsible for that care, Defendant Walkins, has not been served or made an appearance in the case.
Although Plaintiff may have preferred a different course of treatment ( i.e., having x-rays performed), such a desire does not rise to the level of a constitutional violation. Moreover, it was Plaintiff's aggressive behavior that prevented a more thorough examination immediately following the use of force. In any event, Plaintiff has not produced evidence showing that any Defendant perceived a serious medical condition and purposefully took no action. Moreover, as Plaintiff has not established that he suffered from an objectively serious condition, the non-medical Defendants — Defendants Joiner, Riner, Braddy, Brewton, Smith, and Fred Brown — cannot be held liable for failing to obtain additional treatment for Plaintiff. Thus, there is no genuine issue of material fact with respect to Plaintiff's deliberate indifference claims which would preclude the granting of summary judgment to Defendants on all of Plaintiff's claims of deliberate indifference to a serious medical need.
C. Fourth Amendment Claim against Defendant Byrd
Finally, Plaintiff alleges that his Fourth Amendment rights were violated when Defendant Byrd forcibly spread Plaintiff's buttocks to perform a body cavity search and then fondled Plaintiff after he had been removed from his cell on June 21, 2002. Defendant Byrd avers that there is a GSP policy that requires inmates housed in the SMU to undergo a visual body cavity search every time they leave their cell, for any reason, so that the inmate can be checked for weapons and other contraband, but he denies that he performed any such search of Plaintiff on June 21, 2002. (Doc. no. 90, Ex. H, Byrd Aff. ¶ 4). He also categorically denies that on June 21, 2002, he touched Plaintiff's scrotum or penis or that he conducted a digital cavity search on Plaintiff before or after Plaintiff was extracted from his cell. (Id.).
Although Plaintiff has a clearly established right to be free from abusive, unreasonable strip searches, Bell v. Wolfish, 441 U.S. 520, 560 (1979), he has no constitutional right to be free from all strip searches, and the Court should limit its intervention to cases in which a strip search is "devoid of penological merit and imposed simply to inflict pain." Harris v. Ostrout, 65 F.3d 912, 915-16 (11th Cir. 1995) ( per curiam). The prison policy on strip searches must be analyzed under a rational relationship test: "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987). Plaintiff bears the burden of producing evidence that the strip searches are unreasonable. Harris, 65 F.3d at 916 (affirming summary judgment for correctional officer who complied with prison strip search policy where the plaintiff failed to produce evidence to rebut presumption of reasonableness). Moreover, the decision on whether a prisoner's constitutional right to bodily privacy has been violated must be made on a case-by-case basis. Fortner v. Thomas, 983 F.2d 1024, 1030 (11th Cir. 1993). Relevant factors include the scope of the intrusion, the manner in which it was conducted, the place in which it was conducted, and the justification for initiating it. Bell, 441 U.S. at 559. Finally, the Court must be mindful that prison officials are owed "substantial deference" to their decisions regarding prison administration. Bass v. Perrin, 170 F.3d 1312, 1319 (11th Cir. 1999) (citing Bell, 441 U.S. at 547-48).
In conducting the reasonableness analysis, the Supreme Court requires this Court to consider the following factors:
(a) whether a valid rational connection exists between the policy and the legitimate government interest; (b) whether an alternative means of exercising the constitutional right is available to the prisoner in spite of the policy; (c) whether, and the extent to which, accommodation of the asserted right will have an impact on other inmates, prison staff, or the prison resources in general; and (d) whether the regulation represents an "exaggerated response" to prison concerns.Solomon v. Zant, 888 F.2d 1579, 1581 (11th Cir. 1989) (citingTurner, 482 U.S. at 89-91).
Here, Plaintiff has not established that the strip searches performed under SOP IIB01-0013 are unreasonable, let alone refuted Defendant Byrd's sworn statement that on June 21st he did not conduct such an examination of Plaintiff. Nor has Plaintiff refuted Defendant Byrd's averment that he did not perform a digital body cavity search (by forcibly spreading Plaintiff's buttocks) that would have violated the requirement in SOP IIB01-0013 that such manual searches be performed by medical personnel. Nor is there any evidence to contradict Defendant Byrd's averment that he did not touch Plaintiff's scrotum or penis and did not conduct a cavity search on Plaintiff before or after he was extracted from his cell on June 21, 2002.
In sum, the Court finds that the strip search policy is in place for the legitimate penological purpose of ensuring the safety and security of staff and inmates. Plaintiff has produced no evidence to rebut the presumption of reasonableness which attaches to a prison security regulation such as this one. See Harris, 65 F.3d at 916 (explaining presumption of reasonableness and quoting Turner, 482 U.S. at 83-85). Moreover, Plaintiff has not refuted Defendant Byrd's evidence that he was not the correctional officer who performed a visual body cavity search and that he did not forcibly spread Plaintiff's buttocks or touch Plaintiff's scrotum or penis. Thus, there is no genuine issue of material fact which would preclude the granting of summary judgment on Plaintiff's Fourth Amendment claim against Defendant Byrd.
V. CONCLUSION
For the foregoing reasons, the Court REPORTS and RECOMMENDS that Defendants' motions for summary judgment be GRANTED and that a final judgment be ENTERED in favor of Defendants Hugh Smith, Fred Brown, John Brown, Fred Wilson, Steve Dupree, Larry Brewton, Jimmy Joiner, Mark Green, Ferry Braddy, James Waynick, Tyrone Fair, Michael Byrd, Trace Simmons, Kevin Johnson, Michael McInnis, Anthony Oudems, Ernest Riner, and William Cheatam.
SO REPORTED and RECOMMENDED.
Because of the Court's determination of the issues analyzed supra, the Court does not reach the remaining grounds of Defendants' motions for summary judgment.
The undersigned, a regularly appointed and qualified deputy in the office of the Clerk of this district, while conducting the business of the Court for said division, does hereby certify the following:
1. Pursuant to the instructions from the Court and in the performance of my official duties, I personally placed in the United States Mail a sealed envelope, and properly addressed to each of the persons, parties or attorneys named below; and
2. That the aforementioned enveloped contained a copy of the document dated ______, which is part of the official record of this case.