United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE.
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. 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.
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.)
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.)
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.
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
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 ...