United States District Court, M.D. Georgia, Macon Division
PROCEEDINGS UNDER 42 U.S.C. § 1983 BEFORE THE
U.S. MAGISTRATE JUDGE
CHARLES H. WEIGLE, UNITED STATES MAGISTRATE JUDGE
Tanneh Gueh filed a pro se civil rights complaint
under 42 U.S.C. § 1983 on September 28, 2015, alleging
that Defendant Officer Asti Green used excessive force
against her on September 6, 2013. Doc. 1, p. 4.
Defendant's Motion to Dismiss (Doc. 33) was denied and
Defendant has now filed a Motion for Summary Judgment (Doc.
45). Defendant contends that there are no genuine issues of
material fact, that she is entitled to qualified immunity,
and that Plaintiff's claims for compensatory damages are
barred by the Prison Litigation Reform Act
support of her Complaint, Plaintiff relies on her pleadings,
statement of facts, and testimony during her deposition. In
support of her Motion for Summary Judgment, Defendant relies
on her declaration, Plaintiff's deposition,
Plaintiff's disciplinary report, the declaration of
Sandra Martin, and Defendant's statement of material
facts. On a defendant's motion for summary
judgment, the Court must construe the evidence and draw all
inferences in the light most favorable to Plaintiff.
Anderson v. Liberty Lobb, Inc. 477 U.S. 242, 255
(1986) (“The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in
his favor.”) (citing Adickes v. S.H. Kress &
Co., 398 U.S. 144, 158 - 59 (1970)).
deposition, Plaintiff stated that on the morning of September
3, 2013, she was standing in the sally port in front of the
door to cell E8A, talking to one of her fellow inmates, Ms.
Evelyn Fields. Pl's Depo pp. 50-51. Several inmates
were present and witnessed the incident. Id. at
54-57. As Plaintiff was talking to Ms. Fields, she saw
Defendant Green in the “officer bubble” mouthing
something to her, but Plaintiff could not understand what
Defendant was saying. Id.at 61-64. Plaintiff
testified that Defendant then exited the officer bubble,
grabbed Plaintiff by the neck, and told her to get out of the
doorway. Id. at 62-64. Defendant, in her
declaration, contends that she never touched or physically
assaulted Plaintiff. Def's Dec.. 45-4, p. 2.
Defendant grabbed Plaintiff by Plaintiff's uniform shirt,
Plaintiff asked Defendant to take her hands off of Plaintiff.
Pl's Depo p. 62. Plaintiff testified that
“[Defendant, ] you don't have to grab me and choke
me. You can tell me this without putting your hands on
me.” Id. Defendant let go of Plaintiff's
shirt but then “put her bare hands around my neck,
choking me.” Id. The choking continued for two
or three seconds, and Plaintiff testified that
Defendant's grip was so tight that she could not breathe.
Id. When Defendant let go of Plaintiff, she returned
to the officer bubble, came out with a broom, and hit
Plaintiff's side three times with the broom. Id.
Defendant hit Plaintiff with the broom, Plaintiff grabbed the
broom out of Defendants hand. Id. at 67-68.
Plaintiff testified that she told Defendant, “[d]o not
hit me again. I asked you three times not to touch me, and
you repeatedly assaulted me three times. Please do not put
your hands on me again.” Id. at 68. Defendant
then yanked the broom back from Plaintiff and said, “I
don't care about that.” Id. Plaintiff
informed Defendant that there were other protocols and
procedures Defendant could have used to get Plaintiff out of
the doorway, rather than assaulting Plaintiff. Id.
Plaintiff also told Defendant that if Defendant put her hands
on Plaintiff again that she was “going to have to
self-defend myself because I've asked you to not to put
your hands on me.” Id. at 78.
the incident, Plaintiff was sent to the medical unit by one
of the staff members. Id. at 81. Plaintiff was seen
by a nurse practitioner and complained of pain in her side,
back, and neck. Id. at 82-83. The nurse practitioner
noticed that Plaintiff had swelling and redness on her back,
side, and neck, but Plaintiff did not have any broken bones,
lacerations, or need for stitches. Id.at 85, 87-88.
The nurse practitioner prescribed Plaintiff Tylenol for the
pain and swelling and instructed Plaintiff to use “hot
and cold compress to keep the swelling down.”
Id. at 86. The nurse also referred Plaintiff to Dr.
Nazaire “just for protocol.” Id. at 92.
Plaintiff complained to Dr. Nazaire about the pain in her
back, side, and neck. Id. Dr. Nazaire noticed
swelling and redness on Plaintiff and ordered that an x-ray
and MRI be conducted. Id. at 93.
was transferred from PSP to Lee Arrendale State Prison
(“ASP”) a couple of weeks after her visit with
Dr. Nazaire. Id. at 94-95. Plaintiff testified that
she was seen by Dr. Walker of ASP and that she had an x-ray
and MRI while at ASP. Id. at 96-97. Plaintiff stated
that she had “nothing broken, but I know that I had-you
know, still had pain from the situation.”
Id.at 96. Plaintiff also testified that she has
“mild scoliosis of my spine from the situation [with
Defendant, ]” and that she “never had mild
scoliosis before [the incident with Defendant].”
Id. at 96, 98.
addition to the pain, Plaintiff was still experiencing some
swelling. Id. at 97-98. Dr. Walker prescribed
Plaintiff “Elavil, which was for major pain and
swelling, and it also helped with sleep.” Id.
at 97-98. Dr. Walker also referred Plaintiff to the mental
health department at ASP. Id. at 98-100. Plaintiff
testified that she now “fear[s] blue because I was
assaulted at [PSP] [. . . .] They seen the signs in me of the
depression[. . . .]I had PTSD from the situation that took
place.” Id. at 101.
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 if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party, however, “the
mere existence of a scintilla of evidence in support of the
position will be insufficient; there must be evidence on
which the jury could reasonably find for the [non-moving
party].” Johnson v. Bd. of Regents of Univ. of
Georgia, 263 F.3d 1234, 1243 (11th Cir. 2001) (quoting
City of Delray Beach v. Agricultural Ins. Co., 85
F.3d 1527, 1530 (11th Cir. 1996).
must be a conflict in substantial evidence to pose a jury
question. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242 (1986); Verbraeken v. Westinghouse Elec.
Corp., 881 F.2d 1041, 1045 (11th Cir. 1989). This
standard “mandates the entry of summary judgment ...
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Johnson, 263 F.3d
at 1243 (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986)).
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 issues of material fact. 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 ...