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Baker v. Gunderson

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

February 23, 2018

MICHAEL SHELLY BAKER, JR., Plaintiff,
v.
DR. JEFFREY GUNDERSON; TAMMY BROOKS; TAIWANA HALL; and DONNICE JURAN, Defendants.

          ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA

          Plaintiff, who is currently housed at Georgia State Prison in Reidsville, Georgia, filed a 42 U.S.C. § 1983 action, contesting certain conditions of his confinement while he was housed at the Glynn County Detention Center in Brunswick, Georgia. (Doc. 1.) On September 20, 2017, Defendants Brooks, Hall, and Juran (“Defendants”) filed a Motion for Summary Judgment. (Doc. 57.) 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 October 11, 2017. (Doc. 58.) 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[1], 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, I RECOMMEND the Court GRANT Defendants' unopposed Motion, DISMISS Plaintiff's claims against these Defendants, and DENY Plaintiff in forma pauperis status on appeal. The Court DENIES Plaintiff's Motion to Compel and his Motion to Appoint Counsel. (Docs. 65, 66.)

         BACKGROUND[2]

         Plaintiff submitted this Complaint regarding the conditions of his confinement while he was housed at the Glynn County Detention Center during February through March 2016. (Doc. 1-3, pp. 5-6.) Plaintiff alleges that, on February 11, 2016, at 9:45 a.m., while in the Detention Center's medical unit, he fell in his own urine due to having a fractured left elbow and a broken left hip socket. (Id. at p. 6.) Plaintiff cried out for help. However, Defendants Taiwana Hall, a medical assistant; Jeffrey Gunderson, the doctor at the Detention Center; Donnice Juran, a corrections officer; and Tammy Brooks, a nurse, refused to help him for an hour and ten minutes.[3] During that time, these Defendants saw him lying on the ground and ordered him to stand. (Id.) Eventually, medical staff moved Plaintiff to a bed, and Dr. Gunderson examined his injuries. Then, emergency medical technicians (“EMTs”) transferred Plaintiff to Southeast Georgia Health System. (Id.) Plaintiff's injuries were too severe to be treated at Southeast Georgia Health System, and he was transferred to Memorial Hospital in Savannah, Georgia. Plaintiff had surgery at Memorial Hospital and remained at that hospital until February 15, 2016, when he was returned to the Glynn County Detention Center.

         On March 2, 2016, at 6:45 p.m., Plaintiff told Officer Terrell that he was in severe pain. (Id.) On that date, Plaintiff attempted to get his drink off of the table. He slipped and hurt his hip, back, neck, and left elbow. (Id.) A medical emergency was called, and Lieutenant Wooten, Sergeant Rozier, Officer Terrell, and Nurse Johnson saw Plaintiff lying on the floor. (Id. at pp. 4-5.) Nurse Johnson examined Plaintiff and then called emergency medical services for Plaintiff. (Id. at p. 5.) EMTs again transported Plaintiff to Southeast Georgia Health System. Physicians and nurses examined Plaintiff at the hospital and discharged him with a left arm sling and prescription pain medication. (Id.) Plaintiff was then taken back to the Detention Center.

         Two days later, on March 4, 2016, Plaintiff went to his preliminary hearing. (Id.) Before Plaintiff left for the hearing, Defendant Hall, Ms. Franks, Major Heath, and Sergeant Neaves claimed that Dr. Gunderson said that Plaintiff did not need an arm sling. (Id.) Then, Defendant Hall, Ms. Franks, Major Heath, and Sergeant Neaves used physical force to remove the arm sling from Plaintiff's arm. These actions caused Plaintiff more physical pain. (Id.)

         I conducted a frivolity review of Plaintiff's Complaint and directed service of Plaintiff's Complaint upon Defendants based on Plaintiff's allegations that Defendants were deliberately indifferent to Plaintiff's medical needs. (Doc. 16, pp. 7-9, 10.) I recommended the Court dismiss Plaintiff's claims against Neal Jump and Judy Lowe and his monetary damages claims against Defendants in their official capacities. (Doc. 15, pp. 5-7.) The Court adopted this recommendation and dismissed Plaintiff's claims against Jump and Lowe, as well as his monetary damages claims against Defendants in their official capacities. (Doc. 17.)

         Defendants have now moved for summary judgment.

         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 granted, a court must view the record and all reasonable inferences that can be drawn from the record in a light most favorable to the nonmoving party. Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee Cty., 630 F.3d 1346, 1353 (11th Cir. 2011).

         DISCUSSION

         In their Motion for Summary Judgment, Defendants assert Plaintiff's deliberate indifference claims fail and that they are entitled to qualified immunity. In addition, Defendants assert that Plaintiff's excessive use of force claim is without merit.[4] (Doc. 57-1.) In moving for summary judgment, Defendants rely on their Statement of Material Facts, a copy of the transcript from Plaintiff's deposition, declarations sworn under penalty of perjury, and Plaintiff's medical records. As set forth below, I agree that Plaintiff fails to establish a genuine dispute as to his deliberate indifference claims. Therefore, the Court should GRANT Defendants' Motion.

         Plaintiff did file two (2) “Declarations” and a Motion for Production of Documents after Defendants filed their Motion for Summary Judgment, as well as a letter docketed as a Motion to Appoint Counsel. (Docs. 63, 64, 65, 66.) Prior to turning to Defendants' Motion for Summary Judgment, the Court addresses Plaintiff's filings.

         I. Plaintiff's Declarations and Motion for ...


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