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Booker v. Ervin

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

March 7, 2019




         Before the Court is Defendants' unopposed Motion for Summary Judgment, filed on June 27, 2018. Doc. 32. 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 July 18, 2018. Doc. 33. 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. This notice was sent to Plaintiff at Valdosta State Prison and was not returned to the Clerk of Court as undeliverable. Additionally, Local Rule 7.5 explains that failure to respond to a motion within the applicable period of time indicates that the motion is unopposed.

         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).

         The time for Plaintiff to file a response has elapsed, and Defendants' Motion is now ripe for adjudication. For the following reasons, I RECOMMEND the Court GRANT Defendants' unopposed Motion for Summary Judgment and allow Plaintiff to proceed only on his excessive force claim against Defendant Ervin for nominal damages.


         Plaintiff, a state prisoner incarcerated at Valdosta State Prison in Valdosta, Georgia, filed this action pursuant to 42 U.S.C. § 1983, contesting certain conditions of his confinement while he was housed at Georgia State Prison in Reidsville, Georgia. Doc. 1. On August 31, 2015, Plaintiff had an asthma attack and, after using his inhaler, notified Defendant Ervin, the guard on duty, that he needed medical attention. Doc. 32-2 at 22, 24. Defendant Ervin promised to notify his supervisor of Plaintiff's request but otherwise did nothing to secure medical treatment for Plaintiff. Id. at 26. An hour later, Defendant Ervin returned to collect food trays. Id. At that time, Plaintiff stuck his left arm out of the flap in his cell door to get Defendant Ervin's attention. Id. at 23. After Plaintiff again requested medical treatment, Defendant Ervin pinned Plaintiff's arm in the flap and began beating and twisting it. Id. at 29-36. Plaintiff was able to remove his forearm from the door, and Defendant Erwin then kicked the door, injuring Plaintiff's left shoulder. Id. at 39-41.

         That evening, Defendant Williams stopped by Plaintiff's cell and stated that she would pull the recording of the incident, contact her captain, and secure medical treatment for Plaintiff. Id. at 47. The next day, Defendant Blakely stopped by Plaintiff's cell twice but refused to secure medical treatment for Plaintiff. Id. at 70-71. Plaintiff was eventually given medical treatment for his asthma the morning of September 2, 2015, approximately 36 hours after the alleged incident. Id. at 49. During that treatment, the physician's assistant noted that Plaintiff's left hand and right arm were bruised and lacerated. Doc. 32-4 at 34. The physician's assistant ordered an x-ray of Plaintiff's left hand, which revealed that his hand was not fractured. Id. at 37. A month later, Plaintiff underwent a left shoulder arthroscopy to correct a labrum tear in his left shoulder. Id. at 51. Plaintiff alleged in his deposition that this surgery was the result of the August 31 injury to his arm. Doc. 32-2 at 64. Although Plaintiff's medical records indicate that he was diagnosed with a labrum tear to his left shoulder during the October 2, 2015 examination, the records also indicate Plaintiff had a left-shoulder labrum tear in March 2015, six months before the alleged incident. Id. at 58-61. The March diagnosis indicates that Plaintiff was initially scheduled for a follow-up in May of that year, but that appointment was repeatedly rescheduled until late September. Id. at 60-61.

         Plaintiff filed his Complaint on January 18, 2017. After the requisite frivolity review, the Magistrate Judge recommended that the Court dismiss Plaintiff's claims against Defendants in their official capacities but ordered service of Plaintiff's claims for excessive force against Defendant Ervin and for claims of deliberate indifference to medical needs against all Defendants. Doc. 10. The Court then adopted that Report and Recommendation without objection. Doc. 21. After discovery, Defendants filed the instant Motion for Summary Judgment, asking the Court to dismiss Plaintiff's claims for deliberate indifference and to limit Plaintiff's recovery on his excessive force claim to nominal damages. Doc. 32. In support of their Motion, Defendants have submitted a copy of Plaintiff's deposition, Plaintiff's certified medical records, affidavits by all three Defendants, and a statement of undisputed material facts. Docs. 32-2-32-9, 34.


         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. ...

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