Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Martin v. Wilkes

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

July 24, 2019

KENDRICK R. MARTIN, Plaintiff,
v.
SCOTT WILKES, Head Warden; ANTONIO ROSS, Sergeant over CERT; and SERENA CHANCE, Lieutenant, Defendants.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, an inmate at Valdosta State Prison in Valdosta, Georgia, is proceeding pro se and in forma pauperis (“IFP”) in this civil rights case pursuant to 42 U.S.C. § 1983 regarding events alleged to have occurred at Augusta State Medical Prison (“ASMP”) in Grovetown, Georgia. For the reasons set forth below, the Court REPORTS and RECOMMENDS Defendants' motion for summary judgment be GRANTED IN PART and DENIED IN PART, (doc. no. 68), resulting only in summary judgment for Defendants Wilkes and Chance on Plaintiff's Eighth Amendment excessive force claims against them. The case should proceed to trial on Plaintiff's Eighth Amendment excessive force claim against Sergeant Ross arising out of a taser application on March 27, 2017.

         I. PROCEDURAL BACKGROUND

         Plaintiff originally filed this case in the Northern District of Georgia, and on September 19, 2017, Magistrate Judge Walter E. Johnson transferred it to this Court. (Doc. nos. 1, 5.) In his amended complaint, Plaintiff names as Defendants (1) Scott Wilkes, Head Warden; (2) Antonio Ross, Sergeant over CERT; and (3) Serena Chance, Lieutenant. (Doc. no. 6, pp. 1, 5.) On March 6, 2018, the Court dismissed Plaintiff's official capacity claims against Defendants, and allowed Plaintiff's Eighth Amendment claims for excessive force against Defendants in their individual capacities based on Sergeant Ross's application of his taser drive stun to Plaintiff on March 27, 2017. (Doc. no. 36.)

         Defendants submitted with their motion for summary judgment a Statement of Material Facts (“SMF”) pursuant to Loc. R. 56.1. (Doc. no. 68-1.) Although Plaintiff's response consisted of only three pages of factual argument without any opposing affidavits, (doc. no. 74), Plaintiff attached the following six exhibits: (1) part of Defendants' brief in support of their motion for summary judgment; (2) Lt. Chance's affidavit; (3) medical and witness reports concerning the day in question, which were also originally filed by Defendants in support of their motion; (4) one page each from Plaintiff's amended complaint and Defendants' answer; and (5) one page from Plaintiff's interrogatory to Sergeant Ross. (Doc. nos. 74-1 - 74-6.)

         The Court deems admitted all portions of Defendants' Statement of Material Facts that have evidentiary support in the record and are not properly opposed by Plaintiff as contemplated under Federal Rule of Civil Procedure 56.[1] See Loc. R. 56.1; Fed.R.Civ.P. 56(e); see also Williams v. Slack, 438 Fed.Appx. 848, 849-50 (11th Cir. 2011) (finding no error in deeming defendants' material facts admitted where pro se prisoner failed to respond with specific citations to evidence and otherwise failed to state valid objections); Scoggins v. Arrow Trucking Co., 92 F.Supp.2d 1372, 1373 n.1 (S.D. Ga. 2000) (deeming admitted all unopposed fact statements supported by the evidentiary materials of record).

         However, Defendants continue to “shoulder the initial burden of production in demonstrating the absence of any genuine issue of material fact.” Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008); see also Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009). Thus, the Court will review the record, including Plaintiff's sworn deposition, “to determine if there is, indeed, no genuine issue of material fact.” Mann, 588 F.3d at 1303.

         II. FACTS

         A. Undisputed Facts

         On March 27, 2017, Plaintiff was housed in administrative segregation dormitory 11-B at ASMP for disciplinary sanctions. (Pl.'s Dep., doc. no. 70-1, p. 32.) During distribution of meal trays to inmates in their individual cells, Plaintiff informed a floor officer his cell was skipped, he had not received his meal tray, and his tray was still on the meal cart. (Id. at 18.) At this time, Plaintiff's cell door clicked open and became unsecured, and Plaintiff exited his cell unrestrained. (Id. at 18-19.) While housed in dormitory 11-B, an inmate must be cuffed from behind before being removed from his cell and must have at least two officers present at the time of being moved. (Id. at 43-44.)

         Plaintiff exited his cell unrestrained with a sharp object, stopping just short of the orderly distributing meals and the meal cart. (Pl.'s Dep, pp. 19-20; Officer Witness Statements, doc. no. 68-9, p. 14; Incident Report, doc. no. 68-10, p. 1; doc. no. 68-11.) The orderly flipped the cart to separate Plaintiff from him. (Pl.'s Dep., p. 20.) Plaintiff and the orderly argued. (Id.) The orderly picked up one of the meal trays. (Id. at 22.) In response, Plaintiff went up the steps from the lower range of the dormitory to the TV room, got a broom, and returned down the steps towards the orderly. (Id.) The orderly threw the tray at Plaintiff, and they both ran around the dormitory until meeting near the front door, which had been locked by the prison booth operator. (Id. at 22-24.) The prison booth operator called “10-78” to indicate “officer needs assistance” and relayed Plaintiff's attack over the radio. (Id.)

         B. Plaintiff's Version of Events After Operator Call for Assistance

         Lt. Chance, shift supervisor, and Sergeant Ross, of the Central Emergency Response Team at ASMP, were two of the officers who responded to the “officer needs assistance” transmittal. (Id. at 14-15; Ross Aff., doc. no. 68-8, ¶¶ 5-6). Once other officers removed the orderly, Lt. Chance grabbed Plaintiff's left wrist and handcuffed it. (Pl.'s Dep., p. 27.) Another officer grabbed Plaintiff's right wrist, which allowed Lt. Chance to handcuff Plaintiff behind his back. (Id. at 25, 28-29) Sergeant Ross came close to Plaintiff, and Lt. Chance backed off. (Id. at 16.) Sergeant Ross instructed the other officers to lie Plaintiff face down on the ground, and while Plaintiff concedes he heard this instruction he points out Sergeant Ross never directly instructed him to lie on the ground. (Id. at 59.) Once the officials controlling Plaintiff placed him on the ground, Sergeant Ross removed his taser and applied it to Plaintiff. (Id. at 17.) At the time, Plaintiff's hands were handcuffed behind his back, he was not resisting, and he made no movements. (Id. at 15-17, 25.) Sergeant Ross applied the taser for about fifteen seconds. (Id. at 35.)

         After Sergeant Ross and the officials secured Plaintiff, they transported him to medical for examination. (Id. at 30.) Plaintiff first saw Warden Wilkes next to the sally port as Plaintiff was escorted out of dormitory 11-B. (Id. at 34-35.) Plaintiff does not know when Warden Wilkes arrived at the sally port. (Id. at 33-34.) Plaintiff was treated at medical. (Id. at 30.) On his way back to the dormitory after his medical examination, Plaintiff met with Warden Wilkes briefly and asked him if he was “gonna let [the officers] tase me in handcuffs like you never seen that?” (Wilkes Aff. Ex. Video 1, 19:10-23:10.) Warden Wilkes did not respond and kept walking. (Pl.'s Dep., p. 30.)

         C. Defendants' Version of Events After Operator Call for Assistance

         Sergeant Ross responded to the “officer needs assistance” transmittal by showing up at dormitory 11-B. (Id. at 16; Ross Aff., doc. no. 68-8, ¶¶ 5-6.) After the orderly was removed, Plaintiff resisted efforts to apply handcuff restraints, moved around and flailed his arms, pulled away from officers, and refused to comply with officer instructions to lie on the floor and submit to handcuffing. (Ross Aff., ¶¶ 7-9.) Plaintiff refused to comply with Sergeant Ross's instructions to cooperate and cease efforts to resist. (Id.)

         Sergeant Ross decided use of a taser in drive stun mode was the most effective and safest means of gaining control of Plaintiff to apply handcuffs. (Id. ¶ 10.) When a taser is in drive stun mode, the user physically applies the taser to a person's body, sending electricity through the end of the taser. (See id. ¶¶ 10, 11, 20-21.) This method is different from shooting the taser and sending electricity through cables hooked on to the victim. (See id. ¶ 21.) Sergeant Ross applied the taser once while controllably taking Plaintiff to the ground and applying handcuffs to Plaintiff. (Id. ¶¶ 14, 17.) Sergeant Ross, along with other correctional officers, then escorted Plaintiff out of the dormitory to medical to be evaluated for injuries. (Id. ¶ 14.) Lt. Chance, the shift supervisor, arrived shortly after Sergeant Ross applied the taser and began operating a camcorder and narrating a video of Plaintiff's removal from the dormitory to medical for examination. (Chance Aff., doc. no. 68-13, ¶¶ 7-9.) Lt. Chance and Plaintiff have known each other since 2009 and have never had any problems. (Pl.'s Dep., p. 55.) Warden Wilkes did not personally participate in application of the taser to Plaintiff or the decision to do so. (Wilkes Aff., doc. no. 68-3, ¶ 6). Warden Wilkes was not present when the taser was used. (Id.; Pl.'s Dep., p. 33.)

         Plaintiff's medical examination showed he had two abrasions from his physical altercation with the orderly and from the taser. (Doc. no. 68-10, pp 5-7; Wilkes Aff. Ex. Video 1, 24:30-25:40.) Plaintiff was assessed as medically normal and released with no need for any additional treatment or care. (Doc. no. 68-10, pp. 5-7; Wilkes Aff., ¶ 16.) After his medical examination, Plaintiff saw Warden Wilkes outside walking from the administrative area of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.