United States District Court, M.D. Georgia, Macon Division
GREGORY D. BARRION, Plaintiff,
GREGORY MCLAUGHLIN, et al., Defendants.
ORDER AND RECOMMENDATION
CHARLES H. WEIGLE, UNITED STATES MAGISTRATE JUDGE
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.
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
Gregory D. Barrion, a prisoner proceeding pro se,
filed this complaint 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).
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).
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]
(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).
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).
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.
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).
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).
Claims and Relief Requested
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).
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,  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.
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.
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.
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).
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.
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.
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. (Doc. 1).
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
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.
Summary Judgment Standard
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)).
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
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).
parties in this action have filed cross motions for summary
judgment, with Plaintiff moving for partial summary judgment
“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 ...