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Gueh v. Green

United States District Court, M.D. Georgia, Macon Division

November 2, 2017

TANNEH ANGELA GUEH, Plaintiff,
v.
Officer ASTI GREEN, et al., Defendants.

          PROCEEDINGS UNDER 42 U.S.C. § 1983 BEFORE THE U.S. MAGISTRATE JUDGE

          CHARLES H. WEIGLE, UNITED STATES MAGISTRATE JUDGE

         REPORT & RECOMMENDATION

         Plaintiff 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 (“PLRA”).

         FACTUAL ALLEGATIONS

         In 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.[1] 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)).

         In her 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.[2] 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.

         Once 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. at 63-67.

         After 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.

         Following 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.

         Plaintiff 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.

         In 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.

         SUMMARY JUDGEMENT STANDARD

         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 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).

         There 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)).

         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 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 ...


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