United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE
who was formerly housed at the Appling County Detention
Center in Baxley, Georgia, filed a 42 U.S.C. § 1983
action, contesting certain conditions of his confinement.
(Doc. 1.) On February 23, 2017, Defendants filed a Motion for
Summary Judgment. (Doc. 19.) The Clerk of Court mailed a
Notice to Plaintiff advising him that Defendants filed a
Motion for Summary Judgment and that a response must be filed
by March 16, 2017. (Doc. 20.) That Notice further advised
1. If you do not timely respond to this motion . . ., the
consequence may be that the Court will deem the motion
unopposed, and the Court may enter judgment against you.
2. If your opponent's Statement of Material Facts sets
forth facts supported by evidence, the Court may assume that
you admit all such facts unless you oppose those facts with
your own Statement of Material Facts which also sets forth
facts supported by evidence.
3. If a summary judgment motion is properly supported, you
may not rest on the allegations in your [Complaint] alone.
filed no Response to Defendants' Motion for Summary
Judgment, and the Court received no indication this Notice or
Defendants' Motion was undeliverable. However, “the
district court cannot base the entry of summary judgment on
the mere fact that the motion [is] unopposed but, rather,
must consider the merits of the motion.” United
States v. One Piece of Real Property Located at 5800 SW 74th
Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004)
(citation omitted). Specifically, the court “must still
review the movant's citations to the record to determine
if there is, indeed, no genuine issue of material
fact.” Mann v. Taser Int'l, Inc., 588 F.3d
1291, 1303 (11th Cir. 2009) (citation omitted).
on the reasons which follow, I RECOMMEND the Court GRANT
Defendants' unopposed Motion and DISMISS Plaintiff's
Complaint with prejudice. I further RECOMMEND the Court
DIRECT the Clerk of Court to CLOSE this case and DENY
Plaintiff in forma pauperis status on appeal.
was a pretrial detainee at the Appling County Detention
Center. (Doc. 1, p. 4.) He alleges that Defendants used
excessive force against him on May 15, 2016, at approximately
6:00 p.m. Specifically, he states that Defendant Ericson
attempted to throw him to the ground without cause and that
she hurt his arm in doing so. (Id. at pp. 4, 6.)
Plaintiff further contends that Defendant Farris grabbed
Plaintiff and slammed him into a wall, injuring
Plaintiff's left shoulder. (Id. at pp. 5, 7.)
maintain they are entitled to summary judgment because
Plaintiff fails to set forth a viable excessive force claim
under the Fourteenth Amendment. Defendants also contend they
are entitled to qualified immunity. Additionally, Defendants
assert Plaintiff did not exhaust his administrative remedies
prior to filing his Complaint. In moving for summary judgment,
Defendants rely on their Statement of Material Facts, a copy
of the transcript from Plaintiff's deposition, several
declarations sworn under penalty of perjury, and a DVD
depicting the May 15, 2016, incident.
forth below, the undersigned agrees that Plaintiff fails to
establish a genuine dispute as to his excessive force claims.
Therefore, the Court should GRANT Defendants' Motion.
Standard of Review
judgment “shall” be granted if “the movant
shows that there is no genuine dispute as to any material
fact and that the movant is entitled to judgment as a matter
of law.” Fed.R.Civ.P. 56(a). “A dispute about a
material fact is genuine and summary judgment is
inappropriate if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party. However,
there must exist a conflict in substantial evidence to pose a
jury question.” Hall v. Sunjoy Indus. Grp.,
Inc., 764 F.Supp.2d 1297, 1301 (M.D. Fla. 2011) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242
(1986), and (Verbraeken v. Westinghouse Elec. Corp.,
881 F.2d 1041, 1045 (11th Cir. 1989)).
moving party bears the burden of establishing that there is
no genuine dispute as to any material fact and that he is
entitled to judgment as a matter of law. See Williamson
Oil Co., Inc. v. Philip Morris USA, 346 F.3d 1287, 1298
(11th Cir. 2003). Specifically, the moving party must
identify the portions of the record which establish that
there are no “genuine dispute[s] as to any material
fact and the movant is entitled to judgment as a matter of
law.” Moton v. Cowart, 631 F.3d 1337, 1341
(11th Cir. 2011). When the nonmoving party would have the
burden of proof at trial, the moving party may discharge his
burden by showing that the record lacks evidence to support
the nonmoving party's case or that the nonmoving party
would be unable to prove his case at trial. See id.
(citing Celotex v. Catrett, 477 U.S. 317, 322-23
(1986)). In determining whether a summary judgment motion
should be ...