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Porter v. Shumake

United States District Court, S.D. Georgia, Statesboro Division

May 12, 2017

RONTRAVIOUS PORTER, Plaintiff,
v.
RONNIE SHUMAKE; and C.O. II SAPP, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, who is currently incarcerated at Georgia State Prison in Reidsville, Georgia (“GSP”), filed a 42 U.S.C. § 1983 action, alleging that Defendants violated his constitutional rights. (Doc. 1.) On March 14, 2017, Defendants filed a Motion for Summary Judgment. (Doc. 55.) The Clerk of Court mailed a Notice to Plaintiff advising him that Defendants filed a Motion for Summary Judgment and that he must file a response by April 4, 2017. (Docs. 56, 57.) That Notice further advised Plaintiff that:

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.

(Id.) Plaintiff filed no Response to Defendants' Motion for Summary Judgment, and the Court received no indication this Notice or Defendants' Motion was undeliverable.[1] 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). Based on the reasons which follow, the Court should GRANT Defendants' unopposed Motion, DISMISS Plaintiff's Complaint, and DIRECT the Clerk of Court to CLOSE this case. In addition, the Court should DENY Plaintiff leave to proceed in forma pauperis on appeal.

         BACKGROUND

         On October 28, 2013, two GSP officers, Dashay King and Calem Cambell, escorted Plaintiff from the shower back to his cell. (Doc. 55-2, p. 2.) After Plaintiff was returned to his cell, Plaintiff initiated a dispute with Ms. King regarding the return of his personal property. Plaintiff wanted Ms. King to bring the officer in charge (“OIC”) to his cell so he could ask about his property. However, Ms. King notified Plaintiff that she would not do so. (Id.)

         At this point, an inmate adjacent to Plaintiff's cell asked Ms. King-who was distributing breakfast trays-to give him Plaintiff's tray. Ms. King did so, and after Plaintiff expressed his displeasure, Ms. King reiterated that she was not going to summon the OIC. (Id.) Ms. King then twice instructed Plaintiff to remove his arm from the tray flap of his cell door. (Id. at p. 3.) Plaintiff refused and threw “a liquid substance smelling of urine and feces” at Ms. King from inside his cell. (Id. at p. 6; Doc. 55-11, p. 3.) Plaintiff then informed Ms. King that she would now be forced to summon the OIC. (Id. at p. 3.)

         Because Ms. King had been struck by fluids in the face and upper torso, she left the floor to get decontaminated. Plaintiff then told Defendant Sapp, another officer on the scene, that “he wanted his property and was ‘ready to go on strip cell.'” (Id.) Defendant Sapp notified Plaintiff that he was leaving to contact Defendant Shuemake, the OIC that day. (Id. at p. 4.) Shortly thereafter, Defendant Sapp returned with Defendant Shuemake and several other officers. Defendant Shuemake instructed Plaintiff to strip his clothing so that he could be taken to the medical unit. At some point following this instruction, Defendant Shuemake deployed a burst of pepper spray into Plaintiff's cell. Defendants then proceeded to escort Plaintiff to the medical unit for an examination. (Id.)

         Nurse Ana Morales evaluated Plaintiff after the event and determined that he was medically clear and uninjured. Furthermore, during the examination, Plaintiff admitted to Nurse Morales that he was “not hurt” and that “the only thing that's going on with [him]” was burning in the testicles and buttocks. (Id.) (citations omitted). Nurse Morales completed a use of force assessment indicating that Plaintiff was uninjured by the incident and did not request or require any follow-up treatment. (Id.)

         STANDARD OF REVIEW

         Summary 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)).

         The 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 ...


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