United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.
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.
“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
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
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.
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.
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.
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. ...