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Smith v. Vann

United States District Court, N.D. Florida, Tallahassee Division

February 21, 2018

JAMES V. SMITH, JR., Plaintiff,
v.
OFFICER ADAM VANN, SGT. JOSEPH BAILEY, SGT. RONALD M. TADLOCK, and OFFICER COLBY MURPHY, Defendants. v.

          THIRD REPORT AND RECOMMENDATION [1]

          CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE

Two dispositive motions remain pending in this case: a motion for summary judgment filed by Defendants Vann[2] and Bailey, ECF No. 88, and a second motion for summary judgment filed by Defendants Tadlock and Murphy, ECF No. 89. Plaintiff was advised of his obligation to respond to those motions pursuant to Local Rule 56.1 and Federal Rule of Civil Procedure 56. ECF No. 90. Plaintiff filed his response, ECF No. 99, along with numerous exhibits on May 4, 2017. However, Plaintiff did not comply with Local Rule 56.1 and he was required to file an amended response. ECF No. 102. After filing two motions for clarification, ECF Nos. 103 and 105, Plaintiff filed his amended response to both summary judgment motions. ECF No. 108. Defendants were given leave to file a reply, see ECF No. 109, and they did so on July 11, 2017. ECF No. 110.

         Plaintiff's Allegations[3]

         Plaintiff's amended complaint, ECF No. 8, alleged that on November 1, 2012, he was assaulted by Defendant Vann at Taylor Correctional Institution's Work Camp. Id. at 8. Defendant Bailey observed the assault, and told Plaintiff numerous times to keep his “mouth shut and everything would be ok.” Id. at 8-9. Plaintiff contacted his sister about the incident who contacted the Inspector General's office. Id. at 9-10. On November 2, 2012, he was moved to the Annex and placed in confinement. Id. at 10. Plaintiff told his story to Inspector McCray on November 5, 2012, who then informed Plaintiff that he “could expect to be moved to a new institution within 2 weeks.” Id.

         On November 8, 2012, Defendant Murphy was escorting Plaintiff and also told Plaintiff to keep his mouth shut about Defendant Vann. ECF No. 8 at 10. On November 27, 2012, Defendant Murphy advised Plaintiff that if he was “smart, ” he would drop his complaint against Defendant Vann. Id.

         Plaintiff was moved from confinement to the M-1 dormitory on December 28, 2012. ECF No. 8 at 10. There, he obtained a grievance form, completed it, and placed it in the “secure lock box.” Id. On January 10, 2013, Plaintiff was being escorted to the shower when Defendant Murphy told him that he had seen the grievance Plaintiff wrote against him. Id. at 11. Defendant Tadlock told Plaintiff that he “now” had reason to be “in fear” for his life. Id. Later that evening, Defendant Tadlock read Plaintiff's journal aloud and made remarks to instigate other prisoners to attack Plaintiff. Id. Defendant Tadlock made numerous other comments to Plaintiff which could reasonably be taken as threats of violence. Id. Plaintiff and his cellmate, Mr. Beaton, orchestrated a physical altercation to appease Defendant Murphy. Id. at 12. However, Defendant Tadlock directed Mr. Beaton to continue assaulting Plaintiff before finally using “pepper spray” to stop the “fight.” Id. Plaintiff alleged that he continued to be intimidated until transferred. Id. His amended complaint was sworn under penalty of perjury. Id. at 14.

         Standard of Review

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Thus, summary judgment is proper “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The “party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2553. The non-moving party must then show[4] though affidavits or other Rule 56 evidence “that there is a genuine issue for trial” or “an absence of evidence to support the non-moving party's case.” Id. at 325, 106 S.Ct. at 2554; Beard v. Banks, 548 U.S. 521, 529, 126 S.Ct. 2572, 2578, 165 L.Ed.2d 697 (2006).

         An issue of fact is “material” if it could affect the outcome of the case. Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256, 1259 (11th Cir. 2004) (citations omitted). Additionally, “the issue of fact must be ‘genuine'” and the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (other citations omitted). “The mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (quoting Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000)).

         “[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). “[T]here is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.” Anderson, 477 U.S. at 249, 106 S.Ct. at 2511 (noting that a “scintilla of evidence” is not enough to refer the matter to a jury). The Court must decide “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Hickson Corp., 357 F.3d at 1260 (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S.Ct. 2505, 2505, 91 L.Ed.2d 202 (1986)). All “justifiable inferences” must be resolved in the light most favorable to the non-moving party, Beard, 548 U.S. at 529, 126 S.Ct. at 2578 (noting the distinction “between evidence of disputed facts and disputed matters of professional judgment.”), [5] but “only if there is a ‘genuine' dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (quoted in Ricci v. DeStefano, 557 U.S. 557, 586, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009)). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. at 1356 (other citation omitted).

         Exhaustion

         The prior motion to dismiss, ECF No. 31, argued that the complaint should be dismissed because Plaintiff failed to exhaust administrative remedies. As noted earlier, that argument was rejected. ECF Nos. 43, 44. It was accepted that Plaintiff's efforts to access the grievance process were thwarted and, thus, the grievance process was “unavailable” to Plaintiff. ECF No. 43. The Order adopting the Report and Recommendation noted that Defendants had not carried their burden to show Plaintiff failed to exhaust administrative remedies. ECF No. 44.

         Having proceeded through discovery, Defendants now seek to more fully support their affirmative defense and show that Plaintiff failed to exhaust administrative remedies. ECF Nos. 88, 89. Defendants Vann and Bailey argue that Plaintiff could, and should, have exhausted administrative remedies by January 20, 2013. ECF No. 88 at 13.[6] Those Defendants assert, again, that there is no record of Plaintiff having filed grievances while at Taylor Correctional Institution during that period of time. Id. (citing ECF No. 31-2 at ¶6, the affidavit of Elaine Hines).

         Defendants Tadlock and Murphy also argue that it was “temporally impossible for Plaintiff to have properly exhausted his administrative remedies regarding his” claims against them. ECF No. 89 at 8. Defendants point to Plaintiff's deposition testimony in which he said that his grievances were “filed within the time frame between December 28th an January 10th.” ECF No. 89 at 8 (citing ECF No. 88-10 at 4-5 (Ex. I). They argue that Plaintiff's own statements demonstrate “he did not properly exhaust his administrative remedies because his formal grievance would have been premature and in non-compliance with the Florida Administrative Code.” ECF No. 88 at 14-15; see also ECF No. 89 at 8-9. Defendants contend, first, that there “is no record of such filings, ” and “even if Plaintiff did file the grievances he claims he filed, it is still temporally impossible for Plaintiff to have exhausted his administrative remedies regarding the alleged” incidents with Defendants Tadlock and Murphy as they “occurred after the time period that Plaintiff explicitly describes as being when he filed the grievances.” ECF No. 89 at 8-9.

         Defendants also contend that Plaintiff's assertion in his appeal to the Secretary that he was prevented from participating in the grievance process is untrue and untimely. ECF No. 88 at 15. Defendants point out that even if Plaintiff's statements are correct and the grievance process was unavailable to him as he has maintained, Plaintiff was transferred away from Taylor Correctional Institution much sooner and could have presented his claims. Id. at 15-16.

         In response to those arguments, Plaintiff asserts that this issue has already been addressed and he contends he followed “proper procedure.” ECF No. 108 at 1. Plaintiff said that prison officials are to blame if grievances were not “forwarded to the correct location.” Id. He asserts that the grievance process was unavailable to him to grieve about Defendants Tadlock and Murphy because he was in confinement under their control. Id. at 2. He says that his prior requests for grievance forms were ignored. Id. He also suggests that “had the requested forms been provided, the likelihood of completed grievances forms making it to the required destination was remote at best.” Id. He asserts “that as soon as he was able he filed an appeal of the previous grievances including additional details concerning Defendants Tadlock and Murphy.” Id. (citing to Ex. A [ECF No. 108 at 14-17]). Attached to his response is a copy of the appeal he filed with the Secretary's Office on May 3, 2013. ECF No. 108 at 14. That appeal was “returned without action” because the grievance log revealed he “never filed a formal grievance on” the issues raised while at Taylor Correctional Institution and he was “well beyond the time frame to file a grievance.” Id. at 15.

         Plaintiff contends that he attempted “in every way that was available to him, ” to advise prison officials of his problems. ECF No. 108 at 2. He points out that he contacted his sister and requested that she speak with “officials concerning his treatment.” Id. Plaintiff says that she did so, and spoke with officials at the institution as well as the Inspector General's office and the Regional Director. Id. He questions “[w]hat more could have been done to comply” and contends that he met the exhaustion requirement. Id. He ...


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