United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS UNITED STATES MAGISTRATE JUDGE.
an inmate at Valdosta State Prison in Valdosta, Georgia,
commenced the above-captioned case pursuant to 42 U.S.C.
§ 1983, concerning events alleged to have occurred at
the Burke County Jail (“BCJ”) in Waynesboro,
Georgia. For the reasons set forth below, the Court REPORTS
and RECOMMENDS Defendants' motion for summary judgment be
GRANTED (doc. no. 27), final judgment be ENTERED in favor of
Defendants, and this civil action be CLOSED.
Plaintiff is proceeding in forma pauperis, the Court
screened his original complaint and directed service of
process on Defendants based on claims of excessive force and
threats. (See doc. no. 10.) Defendants answered, and
the case proceeded on those claims. (See doc. no.
January 4, 2017, Defendants filed the present motion for
summary judgment. (Doc. no. 27.) Plaintiff responded by
requesting counsel, transcripts of his probation revocation
hearing, and “an extension of time if needed.”
(Doc. no. 29.) The Court denied Plaintiff's request for
counsel and probation revocation transcripts, and construed
Plaintiff's request for more time as a motion for
extension of time to respond to Defendant's motion for
summary judgment. (Doc. no. 30.) The Court granted Plaintiff
an extension until February 15, 2017 to file his opposition
to the summary judgment motion. (Id.) The Court
warned Plaintiff that “[a]ny factual assertions made in
the affidavits of the party moving for summary judgment will
be deemed admitted by this Court pursuant to Loc. R. 7.5 and
Fed.R.Civ.P. 56 unless Plaintiff contradicts the movant's
assertions through submission of his own affidavits or other
documentary evidence, and the motion for summary judgment
will be granted on the grounds that said motion is
unopposed.” (Id. at 4.)
February 14, 2017, Plaintiff filed a one-page document
entitled “Motion to Object to the Summary of
Judgment.” (Doc. no. 31.) It contained no affidavits or
documentary evidence, only the following conclusory
1. Major John Bush did in fact threaten my life. And I have
wittness [sic] to prove it. Jamie “Chambers” also
he stated to Agent Boyld that he never said anything about
killing me. “David Redd”
2. As for his sister J. Bush she stated on the stand that yes
she busted my face. And that she did not go to the doctor.
3. And to show that Mr. Jerry Clark is not telling the truth.
He stated on stand that all of this occurred on a Sunday.
They also stated that I started a fire with a lighter. If
this was the case, then why wasn't charges brought up on
Mr. Redd for arson and where did he get the lighter? They all
are lying and I pray to bring them to Justice.
Plaintiff did not contradict Defendants' factual
assertions with any affidavits or other documentary evidence,
the Court deems admitted all portions of Defendants'
Statement of Undisputed Material Facts that have evidentiary
support in the record. See Loc. R. 56.1;
Fed.R.Civ.P. 56(e); see also Williams v. Slack, 438
F. App'x 848, 849-50 (11th Cir. 2011) (finding no error
in deeming defendants' material facts admitted where
pro se prisoner failed to respond with specific
citations to evidence and otherwise failed to state valid
objections); Scoggins v. Arrow Trucking Co., 92
F.Supp.2d 1372, 1373 n.1 (S.D. Ga. 2000). However, this does
not automatically entitle Defendants to summary judgment
because as movants, they continue to “shoulder the
initial burden of production in demonstrating the absence of
any genuine issue of material fact.” Reese v.
Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008); see
also Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1303
(11th Cir. 2009). Thus, the Court will review the record
“to determine if there is, indeed, no genuine issue of
material fact.” Mann, 588 F.3d at 1303.
August 3, 2014, Deputy Michael Murphy responded to a motor
vehicle accident involving a Ford F-150. (Doc. no. 27-6,
¶ 3 (hereinafter “Murphy Aff.”).) When he
arrived on the scene, he encountered Plaintiff, who reeked of
alcohol and had difficulty performing simple tasks like
standing and pulling his driver's license from his
wallet. (Id. ¶¶ 4, 7. When asked if he was
the driver of the truck, Plaintiff cursed at and threatened
to kill Dep. Murphy. (Id. ¶ 8.) Dep. Murphy
then arrested Plaintiff, charged him with Driving Under the
Influence and Terroristic Threats and Acts, and transported
him to BCJ. (Id. ¶¶ 9, 11.)
BCJ, Plaintiff became very combative, and it took four
officers to place him in a restraint chair in a holding cell.
(Id. ¶ 12; doc. no. 27-7, ¶¶ 5-6
(hereinafter “Clark Aff.”); doc. no. 27-5,
¶¶ 8-9 (hereinafter “Bush Aff.”).)
While being restrained, Plaintiff kicked Officer Jerry Clark
in the stomach, threatened to kill various deputies, and
threatened to kill Dep. Murphy's mother. (Murphy Aff.,
¶ 13; Clark Aff., ¶ 7; Bush Aff., ¶ 9.)
Because of these actions, Plaintiff was charged with two
felony counts of obstruction of an officer as well as
battery. (Bush Aff., ¶¶ 19, 25, Ex. B & C.)
that morning, Sergeant Jacquelyn Bush brought lunch to
Plaintiff and released one of his arm restraints to allow him
to eat. (Murphy Aff., ¶ 14; Clark Aff., ¶¶ 8,
10.) She also loosened his leg restraints because he
complained they were too tight. (Clark Aff., ¶ 10.)
About fifteen minutes later, Ofc. Clark saw smoke coming from
Plaintiff's holding cell, and he and Sgt. Bush rushed to
the cell to discover what was happening. (Id.
arrival, Ofc. Clark and Sgt. Bush discovered Plaintiff had
used his free hand to set fire to the chair restraints with a
cigarette lighter and to free one of his legs. (Id.
¶ 11; Bush Aff., ¶ 10; Murphy Aff., ¶ 15.)
Ofc. Clark and Sgt. Bush attempted to put out the fire and
re-restrain Plaintiff, but Plaintiff kicked Sgt. Bush in the
stomach several times. (Clark Aff., ¶ 12; Bush Aff.,
¶ 11; Murphy Aff., ¶ 16.) To regain control over
Plaintiff so they could put out the fire, Sgt. Bush hit
Plaintiff in the face several times with her hand. (Clark
Aff., ¶ 13; Bush Aff., ¶ 11.)
Sgt. Bush and Plaintiff saw a doctor as a result of this
altercation. (Clark Aff. ¶¶ 14-15; Bush Aff.,
¶¶ 12-13, Ex. A.) Plaintiff was taken to the
emergency room, where doctors noted no swelling or bruising
on Plaintiff's wrists, a small bruise on Plaintiff's
face, and no symptoms of traumatic injury. (Clark Aff.,
¶ 15; Bush Aff., ¶ 13 & Ex. A, p. 2.) Plaintiff
was charged with another count of obstruction of an officer
and battery for kicking Sgt. Bush. (Bush Aff., Ex. B &
August 4, 2014, Major John Bush, administrator of BCJ and
brother of Sgt. Bush, spoke to Plaintiff about his conduct
the previous day. (Bush Aff., ¶¶ 2-3, 14-15.)
Plaintiff had previous threatened Maj. Bush's life and
insulted his mother on numerous prior visits to BCJ. (Clark
Aff., ¶ 3; Bush Aff. ¶¶ 5-6.) During this
conversation, Maj. Bush told Plaintiff that, if he had been
his former self, he would have killed Plaintiff. (Bush Aff.,
¶ 15.) However, he made it clear that he was now
reformed and would not actually kill Plaintiff.
(Id.) Maj. Bush merely wanted to emphasize to
Plaintiff how out of line his behavior had been.
(Id.) Plaintiff acknowledged he had acted wrongly.