United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, JUDGE UNITED STATES DISTRICT COURT
31-page Recommendation, United States Magistrate Judge
Charles H. Weigle recommends denying the Plaintiff's
motion for partial summary judgment (Doc. 235) and granting
in part and denying in part the Defendants' motion for
summary judgment (Doc. 233). Doc. 289 at 1. The
Recommendation states the relevant facts in detail, and the
Court does not repeat them here. Very generally, the
Plaintiff's claims arise from three incidents. One
involves the alleged use of excessive force by an officer
when he slammed a “tray flap”-a 5-inch by 12-inch
opening in the Plaintiff's cell door- onto the
Plaintiff's hand and the alleged subsequent inadequate
medical care for his hand injury. Id. at 2; Doc.
233-2 at 7:14-17. The second involves the alleged retaliation
against the Plaintiff for his use of the prison grievance
system. Id. Finally, the third incident involves the
alleged inadequate medical care for a bullet that was stuck
inside the Plaintiff's leg. Doc. 289 at 2-3. The
Magistrate Judge recommends that the Plaintiff's
deliberate indifference claim related to his hand injury
against Defendant Burnside be dismissed and his remaining
claims proceed to trial. Id. at 1. The remaining
claims are: (1) an excessive force claim against Defendant
Clupper; (2) retaliation claims against Defendants Clupper,
Kyles, Powell and Logan; and (3) a deliberate indifference
claim against Defendant Burnside related to the embedded
bullet in the Plaintiff's leg. Id. Both the
Plaintiff and the Defendants have objected to the
Recommendation. Docs. 293; 294. Pursuant to 28 U.S.C.
§ 636(b)(1), the Court has considered the objections and
made a de novo determination of the portions of the
Recommendation to which the parties object. For the following
reasons, the Recommendation (Doc. 289) is
their objection, the Defendants “do not object to the
recommendation regarding Plaintiff's medical deliberate
indifference claims” against Defendant Burnside. Doc.
293 at 2. Instead, they argue the Magistrate Judge erred in
recommending summary judgment be denied on the
Plaintiff's excessive force and retaliation claims
because the Magistrate Judge relied on alleged facts not
supported by the record. Id. On the contrary, it is
clear from the Defendants' objection that the Defendants
either do not understand the reasoning behind the Magistrate
Judge's findings or are unfamiliar with the record, or
example, to rebut the Plaintiff's excessive force claim,
the Defendants contend there is no evidence that the
“Plaintiff broke his left pinky
finger.” Id. That is true, given that the
hand at issue is the Plaintiff's right hand.
Doc. 233-2 at 18:22-4, 19 at 11-12 (the Plaintiff testifying
at his deposition that he felt pain on his right hand, not
his left). Assuming the Defendants meant to say the
Plaintiff's right pinky finger, their argument
undisputed that on December 19, 2013, Defendant Clupper
closed a “tray flap” onto the Plaintiff's
right hand. As a result, the Plaintiff suffered injuries.
the Plaintiff stated the following at his deposition:
Q: These shooting pains that you mentioned, where do you feel
them in your hand, just all over or specific- A: From the
right side of-the right side of my hand up to my pinky
finger. It was my right hand- Q: And the pinky finger is the
one that you think was broken?
A: -yes, ma'am.
Q: Do you think anything else was broken in the incident?
A: I wouldn't know.
Doc. 233-2 at 18:22-8. Over a year later, an x-ray of the
Plaintiff's right hand revealed a healed fracture of the
“4th metacarpal” or “ring”
finger. Doc. 113-2 at 11. Given these facts, the Defendants
seem to believe that because the x-ray results do not show
that the Plaintiff's right pinky finger was broken and
because the Plaintiff did not say at his deposition that his
right “metacarpal” or “ring” finger
was broken, that undercuts his excessive force claim. Doc.
293 at 2.
as the Plaintiff acknowledged at his deposition, “it
felt” like his hand was broken; he did not know, and
certainly cannot be expected to know, whether his fingers,
including his “metacarpal” or “ring”
finger, were actually broken. Doc. 233-2 at 18:12-15. All he
knew was that on a scale of 1 to 10, with 10 being the most
extreme, the pain level was a 10 for what he described as a
“swelled up” and “purple-ish” hand.
Id. at 10:5-13. Moreover, there is additional
evidence to connect the tray flap incident to the broken
“ring” finger. Though the Defendants rely only on
the Plaintiff's deposition testimony, the Plaintiff, in
one of his medical requests, stated that due to the incident,
“it hurts to bend” his fingers, including his
“right pinky and ring finger.” Doc. 116-5 at 3.
Thus, given the Plaintiff's testimony, subsequent
grievances, medical records and medical service requests, a
jury could reasonably find that the Plaintiff sustained a
fractured metacarpal bone on his right hand during the tray
Defendants also argue that because the record shows the
prison enforces a strict prohibition against “bucking
the flap” and that the Plaintiff “bucked the
flap, ” the Magistrate Judge erred in concluding
otherwise. Doc. 293 at 3-4. The Court disagrees. Contrary to
the Defendants' assertion that the Magistrate Judge
“discounted Plaintiff's own sworn testimony,
” the Magistrate Judge did consider the Plaintiff's
deposition testimony in concluding a jury could reasonably
find that the Plaintiff did not “buck the flap”
and that the prison did not regularly enforce its prohibition
against “bucking the flap.” Docs. 289 at 15, 24;
293 at 4. At his deposition, the Plaintiff explained that
“bucking the flap” means “[n]ot letting the
officer close the flap.” Doc. 233-2 at 10:20-23. The
Plaintiff then recalled an instance in which he “bucked
the flap” to get a supervisor's attention.
Id. at 11:20-25. According to the Plaintiff, inmates
usually “buck the flap” to get a supervisor to
come to their wing because “any time an officer is
getting ready to use force or needs to use force, ”
that officer must first notify a supervisor. Id. at
9:3-6, 10:2-8. In that previous occasion, everything went
smoothly for the Plaintiff. He placed his hand on the tray
flap, an officer radioed his supervisor to come to the
Plaintiff's cell, and after the Plaintiff and the
supervisor talked, the supervisor addressed the
Plaintiff's concern. Id. at 11:1-7.
the same would happen here, the Plaintiff placed his hand on
the tray flap so that Defendant Clupper, who allegedly had
been ignoring him, would contact his supervisor. Id.
at 7-8. But rather than calling his supervisor, Defendant
Clupper allegedly “slam[med]” the tray flap onto
the Plaintiff's hand without giving sufficient warning.
Id. at 9:4-7. The parties do not dispute that the
Plaintiff placed his hand on the tray flap. However, as the
Magistrate Judge points out, a jury could reasonably find
that the Plaintiff placed his hand on the tray flap not to
prevent Defendant Clupper from closing the flap but to get
Defendant Clupper's and his supervisor's attention.
Doc. 289 at 24. A reasonable jury could also find that the
Plaintiff, after getting Defendant Clupper's attention,
had little or no opportunity to remove his hand until after
Defendant Clupper had already closed and reopened the flap.
In short, there are genuine factual issues not only as to
whether the Plaintiff “bucked the flap” but also
as to whether there was even a need or authority to use
force, particularly given the ...