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Barrion v. McLaughlin

United States District Court, M.D. Georgia, Macon Division

December 19, 2019

GREGORY D. BARRION, Plaintiff,
v.
GREGORY MCLAUGHLIN, et al., Defendants.

          ORDER AND RECOMMENDATION

          CHARLES H. WEIGLE, UNITED STATES MAGISTRATE JUDGE

         Before the Court are two motions for summary judgment, filed by Plaintiff Gregory D. Barrion (Docs. 59, 67), and Defendants McLaughlin, Eaddie, Thomas, Pope, Williams, Holt, Collins, and Perry (Doc. 69), respectively. For the reasons discussed herein, it is RECOMMENDED that Plaintiff's motion (Docs. 59, 67) be DENIED, and that Defendants' motion (Doc. 69) be GRANTED in part and DENIED in part.

         Plaintiff's motion to compel discovery (Doc. 66) is DENIED as untimely, since the motion was filed after the close of discovery, see El-Saba v. Univ. of S. Alabama, 738 Fed.Appx. 640, 645 (11th Cir. 2018). Plaintiff's motion for default judgment (Doc. 68) is DENIED as meritless, as all defendants in this action have timely filed their respective answers and defenses.

         I. BACKGROUND

         A. Factual Background

         Plaintiff Gregory D. Barrion, a prisoner proceeding pro se, filed this complaint[1] pursuant to 42 U.S.C. § 1983, raising claims under the Eighth Amendment regarding various incidents involving “cross-cuffing” while traveling to and from Macon State Prison, his former place of incarceration. (Docs. 10, 13, 20, 23). Plaintiff is now confined at Georgia State Prison. (Doc. 41).

         The cross-cuffing procedure involves cuffing an inmate's right wrist to his left wrist which is in turn attached to a waist chain, causing the inmate's arms to cross his stomach, severely limiting movement. (Doc. 10-1, pp. 19, 21; 69-3, pp. 44-46). In Plaintiff's case, his ankles were also cuffed and shackled to each other with a connecting chain, or “leg irons, ” allowing for only limited ability to walk. (Doc. 10, p. 5; 69-3, 44-46).

         The facts as alleged by Plaintiff in his recast complaints are as follows. On November 6, 2017, Plaintiff was transported to Augusta State Medical Prison (“ASMP”) from Macon State Prison while “cross-cuffed.” (Doc. 10, p. 5). Plaintiff was taken to ASMP for treatment of an unrelated sinus issue. (Doc. 69-3, p. 41). Shortly before he was transported to ASMP, Plaintiff inquired as to why he and the other inmates in the vehicle were being cross-cuffed. Deputy Warden Eaddie responded by directing Plaintiff's attention to a sign posted on a nearby wall that stated:

Per Mr. Eaddie
Inmates going out
Will be cross cuff[ed]
NO EXCEPTIONS!!!!!!!!

(Doc. 10, pp. 5, 7). Defendants do not dispute that a sign approximating the above message was posted at the prison. (Eaddie Interrog., Doc. 59-1, p. 4; Thomas Interrog., Doc. 59-1, p. 6). According to Plaintiff, Eaddie was present at the transport to ensure all inmates complied with the notice. Plaintiff and the other inmates then made the four-hour journey to ASMP “in anguish” because of the cross-cuffing. (Doc. 10, p. 5).

         Once at ASMP, Plaintiff attempted to alight from the transport van but lost his balance. Plaintiff tried to grab a seat to balance himself as he stepped down from the van, but his “arm reach was so restricted” that he “missed the seat, ” causing him to “miss [his] step in the leg irons.” As Plaintiff was falling out of the van “head [first], ” he tried to “turn in the air” so that he would fall on his back instead. While attempting this maneuver, the back of his head repeatedly struck against the van door. Plaintiff's fall cushioned by Sergeant Jones, who caught Plaintiff's head before it struck the pavement but was unable to prevent Plaintiff's back from “slamm[ing] against the ground.” As Plaintiff hit the ground, he heard Officer Knight, an official at ASMP, say, “Why do they keep falling right here?” (Id., pp. 5-6). Although Plaintiff claims that the position in which Jones caught his head ultimately caused injury to his neck, Plaintiff has chosen not to name Jones, who has since retired, as a defendant in this case to show his gratitude to Jones for his actions. (Id., p. 6; Doc. 13-1, p. 1).

         Plaintiff was then taken to the emergency department at ASMP, where he was provided with pain medication. Plaintiff claims that when he boarded the van to return to Macon State Prison, Jones told him that another inmate had fallen “face-first and cut his face on the iron step” during an incident similar to the one Plaintiff had experienced. (Doc. 10, p. 6).

         On the journey back to Macon State Prison, Plaintiff was again cross-cuffed. This time, the cross-cuffing caused him “torment” because of the neck pain resulting from his earlier fall. Another inmate on board the van asked Officer Thomas, “Why are you still cuffing him like that? He's hurt.” Thomas replied, “We have to, per D.W. Eaddie.” During the ride back to Macon State Prison, Plaintiff's neck pain was “murdering [his] mind to death, ” and he later experienced “one of the greatest moments of relief [he] ha[s] ever felt” once he was eventually released from the restraints. (Doc. 13-1, p. 4). Plaintiff's neck “hasn't been the same since, ” and he continues to suffer daily neck pain. Plaintiff claims that he “will stand to be tested by any doctor.” (Doc. 10, p. 6).

         Since the November 2017 incident, Sergeant Pope, Officer Williams, and Officer Holt have cross-cuffed Plaintiff on at least two occasions for a total of eight hours of “extreme discomfort and agony.” On one occasion, on or around October 15, 2018, during a visit to the hospital to have an MRI scan performed on his neck, Plaintiff was cross-cuffed by Officer Collins, on Holt's order, even though it was “unnecessary” to do so because Plaintiff was traveling alone. Plaintiff claims that Holt gave him the option of traveling to the hospital cross-cuffed or not going to the hospital at all. (Doc. 20). On another occasion, Plaintiff was cross-cuffed during a journey that was prolonged for approximately an hour because Williams and Pope stopped to be fitted for bulletproof vests. (Docs. 20, p. 1; 69-5, ¶ 14).

         B. Claims and Relief Requested

         Based on the aforementioned allegations, Plaintiff's Eighth Amendment claims against Defendants McLaughlin, Eaddie, Thomas, Pope, Williams, Holt, Collins, and Perry were allowed to proceed for further factual development. (Doc. 29). Specifically, it was found that Plaintiff had alleged sufficient facts to state conditions of confinement and excessive force claims against McLaughlin, Eaddie, Thomas, Pope, Williams, Holt, and Collins; and a deliberate indifference to serious medical needs claim against Thomas. Defendant Perry, the current warden of Macon State Prison, was automatically substituted for McLaughlin, the former warden, in his official capacity only, pursuant to Federal Rule of Civil Procedure 25(d). (Id., pp. 4-5).

         In relief, Plaintiff requests compensatory and punitive damages, as well as an injunction to “abolish the policy and practi[c]e of cross cuffing” at Macon State Prison. (Docs. 10-1, p. 17; 59, p. 6). Because Plaintiff has since been transferred from Macon State Prison, and he does not allege that cross-cuffing has continued at his new place of incarceration, [2] his claims for injunctive relief are moot. See Smith v. Allen, 502 F.3d 1255, 1267 (11th Cir. 2007) (citing McKinnon v. Talladega Cty., 745 F.2d 1360, 1363 (11th Cir. 1984), and Zatler v. Wainwright, 802 F.2d 397, 399 (11th Cir. 1986)); Spears v. Thigpen, 846 F.2d 1327, 1328 (11th Cir. 1988). Therefore, only his claims for compensatory and punitive damages remain.

         C. Procedural Background

         The parties have filed cross motions for summary judgment. Plaintiff has moved for partial summary judgment against Defendants McLaughlin, Eaddie, Thomas, and Holt only. Defendants have moved for summary judgment based on qualified immunity, Eleventh Amendment immunity, and exhaustion. Defendants filed a timely response to Plaintiff's motion, but Plaintiff has not responded to Defendants' motion. On October 16, 2019, Plaintiff filed a letter informing the Court that he had given his lengthy, handwritten response to another inmate, Carlos Smith-Jones, who then lost it. (Doc. 75). Almost two months have passed since Plaintiff filed his letter, and four since Defendants filed their summary judgment motion, yet no response has been filed.

         II. EXHAUSTION

         Defendants Collins, Holt, Williams, and Pope argue that the claims against them should be dismissed for failure to exhaust. “[E]xhaustion of administrative remedies is a matter in abatement and not generally an adjudication on the merits.” Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir. 2008). Therefore, an exhaustion defense “is not ordinarily the proper subject for a summary judgment; instead, it should be raised in a motion to dismiss, or be treated as such if raised in a motion for summary judgment.” Id. (quotation omitted). Viewed in light of the appropriate standards, Plaintiff failed to exhaust his administrative remedies as to the claims against Defendants Collins, Holt, Williams, and Pope before filing the instant complaint; therefore, those claims should be dismissed.

         The Prison Litigation Reform Act, provides: “No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “As a result, when a state provides a grievance procedure for its prisoners, as Georgia does here, an inmate alleging harm suffered from prison conditions must file a grievance and exhaust the remedies available under that procedure before pursuing a § 1983 lawsuit.” Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000) (emphasis added). Therefore, even if the prisoner exhausted his administrative remedies after filing his complaint, the claims not exhausted prior to commencement of the action must be dismissed. See Smith v. Terry, 491 Fed.Appx. 81, 83-84 (11th Cir. 2012); Terrell v. Davis, No. 5:17-CV-441-MTT-CHW, 2018 WL 5624723, at *2 (M.D. Ga. July 27, 2018), report and recommendation adopted, 2018 WL 4502329 (M.D. Ga. Sept. 20, 2018).

         “[T]o properly exhaust administrative remedies prisoners must ‘complete the administrative review process in accordance with the applicable procedural rules, '-rules that are defined not by the PLRA, but by the prison grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (citation omitted) (quoting Woodford v. Ngo, 548 U.S. 81, 88 (2006)). In considering exhaustion, “it is proper for a judge to consider facts outside of the pleadings and to resolve factual disputes so long as the factual disputes do not decide the merits and the parties have sufficient opportunity to develop a record.” Bryant, 530 F.3d at 1376.

         To determine whether the plaintiff failed to exhaust, courts in the Eleventh Circuit follow the two-step process mandated by Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008). Under Turner's first step, the court must look to the factual allegations in the defendant's motion to dismiss and those in the plaintiff's response, and if they conflict, the court takes the plaintiff's version of the facts as true. Id. at 1082. “If, in that light, the defendant is entitled to have the complaint dismissed for failure to exhaust administrative remedies, it must be dismissed.” Id. If the complaint is not subject to dismissal based on the plaintiff's version of the facts, the court must proceed to the second step, where it must make specific findings of fact in order to resolve the disputed factual issues related to exhaustion. Id. At the second step, it is the defendant's burden to prove that the plaintiff failed to exhaust the available administrative remedies. Id.

         The facts underlying both the excessive force and conditions of confinement claims against Defendants Collins, Holt, Williams, and Pope pertain to two cross-cuffing incidents separate from the incident involving the other defendants in this action. The first related to a prolonged journey, during which time Plaintiff was cross-cuffed, where Pope and Williams “got off rout[e]” to be fitted for bullet-proof vests at another facility. (Docs. 20, p. 1; 69-5, ¶ 14). It is not clear from the record when that event took place. The second incident occurred on October 15, 2018, when Plaintiff was cross-cuffed while traveling alone for a hospital visit. (Doc. 20, pp. 1-2). Both claims were raised for the first time in Plaintiff's supplemental complaint, dated November 9, 2018. (Id.). Plaintiff filed his original complaint on July 18, 2018.[3] (Doc. 1).

         Plaintiff's claims against Defendants Collins, Holt, Williams, and Pope are subject to dismissal at step one of Turner. Defendants allege that Plaintiff failed to file a grievance with prison officials as to either incident. Plaintiff has not responded to the allegation, and there is no indication in the record that a relevant grievance was filed. Because Plaintiff did not even initiate the applicable grievance procedure before filing his claims in federal court, those claims must be dismissed. See Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000). That Plaintiff was granted leave to file the supplemental complaint in which those claims were raised, see (Doc. 29, pp. 2- 3), does not alter that conclusion, see Smith v. Terry, 491 Fed.Appx. 81, 83 (11th Cir. 2012) (“Smith's attempt to amend or supplement his original complaint did not change the important historical fact: his administrative remedies were unexhausted when he filed his original complaint. Therefore, he cannot cure the exhaustion defect.” (citing Harris v. Garner, 216 F.3d 970, 981 (11th Cir. 2000))).

         III. SUMMARY JUDGMENT

         Defendants McLaughlin, Eaddie, and Thomas are entitled to summary judgment as to all claims except the excessive force and conditions of confinement claims relating to Thomas's cross-cuffing of Plaintiff for the four-hour return journey from ASMP while Plaintiff was experiencing severe neck pain.

         A. Summary Judgment Standard

         A party is entitled to summary judgment “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). “An issue of fact is ‘material' if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A factual dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party; however, “the mere existence of a scintilla of evidence in support of the position will be insufficient.” Johnson v. Bd. of Regents of Univ. of Georgia, 263 F.3d 1234, 1243 (11th Cir. 2001) (quoting City of Delray Beach v. Agricultural Ins. Co., 85 F.3d 1527, 1530 (11th Cir. 1996)).

         The party moving for summary judgment bears the burden of informing the Court of the basis for its motion, and of citing “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ” that support summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). In resolving motions for summary judgment, the Court must view the evidence in the light most favorable to the nonmoving party, Tolan v. Cotton, 572 U.S. 650, 657 (2014), which requires the Court to believe the evidence provided by the nonmovant and draw all justifiable inferences in the nonmovant's favor, Anderson, 477 U.S. at 255. “Inferences based on speculation, ” however, “will not suffice to overcome a motion for summary judgment.” Melton v. Abston, 841 F.3d 1207, 1219 (11th Cir. 2016) (citation and internal quotation omitted).

         A party's failure to respond to a motion for summary judgment does not inevitably result in summary judgment by default. See Trustees of Cent. Pension Fund of Int'l Union of Operating Engineers & Participating Employers v. Wolf Crane Serv., Inc., 374 F.3d 1035, 1039-40 (11th Cir. 2004). Instead, the court “must consider the merits of the motion” under the usual summary judgment standard articulated in Federal Rule of Civil Procedure 56. Id. at 1039 (quotations omitted).

         The parties in this action have filed cross motions for summary judgment, with Plaintiff moving for partial summary judgment only.

“Cross motions for summary judgment do not change the standard.” Latin Am. Music Co. v. Archdiocese of San Juan of the Roman Catholic & Apostolic Church, 499 F.3d 32, 38 (1st Cir. 2007). “‘Cross motions for summary judgment are to be treated separately; the denial of one does not require the grant of another.'” Christian Heritage Acad. v. Okla. Secondary Sch. Activities Ass'n, 483 F.3d 1025, 1030 (10th Cir. 2007) (quoting Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979)). “Even where the parties file cross motions pursuant to Rule 56, summary judgment is inappropriate if disputes remain as to material facts.” Id.; accord Monumental Paving & Excavating, Inc. v. Pa. Mfrs.' Ass'n Ins. Co., 176 F.3d 794, 797 (4th Cir. 1999) (“When considering motions from both parties for summary judgment, the court applies the same standard of review and so may not resolve genuine ...

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