Conner v. McNeal et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DANIEL DEWAYNE CONNER, )
)
Plaintiff, )
)
vs. ) CIV. ACTION NO. 24-0068-JB-MU
)
KENDRICK MCNEAL, et al., )
)
Defendants. )
REPORT AND RECOMMENDATION
Plaintiff Daniel Dewayne Conner, a federal inmate proceeding pro se, filed a
complaint under 42 U.S.C. § 1983. This action has been referred to the undersigned for
appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(R).
This matter is before the Court on Defendants’ motion for summary judgment (Doc. 47),1
and Plaintiff’s response thereto (Doc. 51). For the reasons discussed below, it is
RECOMMENDED that summary judgment be GRANTED, in part, and DENIED, in part.
I. BACKGROUND
Plaintiff Conner was housed at Baldwin County Corrections Center (“the jail”) as a
federal pretrial detainee from April 20, 2022, to May 17, 2022. (Doc. 30-6 at 2). During his
confinement, he alleges excessive force was used against him on or about May 12, 2022,
and he was denied medical treatment for his injured hand in violation of his constitutional
rights.
1 At the request of Defendants, the Court converted the Defendants’ Answers and Special
Reports to a motion for summary judgment. (See Doc. 22 at 21; Doc. 30 at 28).
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According to Conner, upon entering the jail and through subsequent medical
requests, he reported to medical staff that his left-hand index finger was injured. (Doc. 1
at 17). After an x-ray was obtained, Conner inquired about when he would see a doctor.
Nurse Simmons told him, “You’re not if there’s nothing wrong with your finger, which is
your case.” (Id.). Conner filed a grievance regarding Nurse Simmons’s reply and asked
for a second opinion and medical attention, stating “something is wrong with it and I’m
hurting like Hell. I want medical attention.” (Id.). Conner was examined the next day by
the doctor who opined that while the x-ray reported no fracture, he could feel “something”
and was going to call it “arthritis.” (Id. at 18). Conner was prescribed Ibuprofen 800mg,
but despite Conner’s repeated requests to see the x-ray (or obtain a copy), he was not
allowed. (Id.).
On May 11, 2022, Conner filed a grievance complaining of “slave labor” and “mass
punishment” at the jail. (Id. at 19). He claims, the next day, excessive force was used
against him in retaliation for filing the grievance.
According to Connor, on May 12, 2022, the inmates in Dorms G and H were
removed from their cells and a canine search was conducted at the jail. The search
included Conner’s cell, H-8, which he alleges was the last cell searched. When Conner
reentered his cell after the search, he found his personal space “tossed,” with soup
packets crushed and scattered on the ground and his cup of coffee (which had been on
the sink) poured all over his rack, papers, socks, and other areas. (Id. at 19). Conner told
the officers they “were wrong for that [] Bullshit. . . .” (Id.). The correctional officers
laughed and stared at him (id.), and Officer Ephriam replied, telling Conner to “shut the
fuck up” and “lock down,” and Conner responded, “fuck you.” (Id. at 20). Thereafter, a
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“big, tall, black C.O. in a red shirt” entered Conner’s cell, handcuffed him, and started
handling him roughly, while the CERT Team rushed in to extract Conner from his cell.
The “red shirt” officer and Officer McNeal rammed Conner’s head and left side of his face
into the metal cage multiple times before he exited the cage and cell block. Conner
alleges he never resisted but only expressed that he “had done nothing worthy of assault
and [] had no intentions of resisting.” (Id.). Once in the hall between H block and I block,
Conner explains in his verified complaint:
C.O. McNeal came up behind me and basically picked me up, pushing me
down the hall, kneeing me/or someone was kicking/punching me in my right
side as we went. McNeal was verbally taunting me asking me “you think
you’re tough []” “you think you run shit” “you do[n’t] run shit, this is our jail”
and so on. . . .
So as we were moving C.O. McNeal then picked me up in a blood lust rage
and tried to body slam me. He had me up, but we were falling towards the
wall and my handcuffs caught on a door handle. This caused the cuts and
bruises on my right wrist because all our weight was on just the one wrist. I
stayed behind. McNeal lost his grip. Another C.O. grabbed my hands,
snatching my handcuffed hands free from the door latch injuring my left
pinky and 4th finger and re-injuring my left index finger. Basically, at that
moment, white, hot, seering pain took over.
The next thing I remember is I was fighting to stay conscious from the blow
to my head as I hit the concrete with someone on me. I hear McNeal saying
“I told you you ain’t shit Motherfucker and notice that the Latina CO guy was
doing these little short 6 inch punches to my right eye and temple. . . the
whole time McNeal is punching kneeing or whatever he was doing.
This is about the moment I noticed the Lt/Captain (older black man with a
limp) and I think this is where they stood me up to face him. McNeal still
taunting me saying “he will fuck me up,” “you aint shit . . . whatever - - I
replied, “Im in handcuffs” which pissed him off to the point of starting to take
my handcuffs off to fight me. This is when he made the comment, “You’re
the Mother Fucker that wrote that shit,” (I want to say he said, “Yesterday”
and/or “on the tablet,” and the limping man made a cut throat motion or
silencing motion to McNeal which is when I said, “Ahh, so that’s what this is
about huh, the grievance as I looked at the limping man. He fiend ignorant
and said, “I don’t know what you’re talking about.”
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This is when I noticed all the people lined up in the hall laughing and jeering,
“ Mf you don’t know shit, this is our jail.” “Fuck the feds, they ain’t gonna do
shit” and so on.
Then we continued down the hall, basically as roughly as possible. They
strap me in a chair facing F-block.
At this time, the milky eyed lady offers me something to eat. I said hold on,
“I can’t breathe,” because I was on the verge of crying and had a lump in
my throat, and apparently I said some trigger word because the milky eyed
lady turned her body cam on along with whom I believe was Ms. Peoples.
Around this time the Nurse, “Miss Simmons” I believe came up to me and I
remember thinking, “At least they’re checking to see if I’m ok but she just
checked the restraints. As she checked my lefthand restraint she literally
grabbed and twisted my index finger, looking me in the eyes. I exclaimed,
“Why the hell would you pull my finger” or something along those lines when
the milky eyed lady basically told me “shut up and the reason I was in the
chair was because I wouldn’t shut my mouth.” I replied, “so, this is what y’all
do to people who talk to[sic] much?”
I ate two sandwiches on video.
Limp and McNeal came back about 2 hours later and Limp explained to me
about how I wan’t going to use grievances or talk about his staff on the
phone. . . McNeal said something about I was gonna keep my mouth shut
about this and asked if I had any problems. I said not yet. And they both left.
McNeal said I hadn’t learned my lesson yet before going and something
about my not making it this chair next time (perceived death threat). . . .
They left.
Ms. Peoples came around and asked if I was ok, I said do you really care?
She said, I asked didn’t I . . . I told her I would be ok but not right now - - I
thanked her for her kindness and she told me “just keep my mouth shut.”
Just don’t say anything, ok.
Limp and McNeal came back and a white man (Warden/Captain) He asked
what I was doing in the chair, I said, Right??? . . . He said you’re with the
marshals and I said yes. He said they’re not coming for you, I said why don’t
you call them for me then and we’ll see . . . They conferred and the Limp
made sure I understood the instructions. They put me back in my cell in H-
Block.
Friday I got to see medical. . . They scheduled an Xray of my left pinky. Next
day Nurse said it looked as though something bit me on my cut and bruised
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wrist. Refused to put notation in chart but called me to medical every day
up till Conecuh Co. picked me up. I was bandaged when I transported.
(Id. at 20-26). Conner claims that he suffered broken hand bones, internal bleeding, and
injuries from Defendants, and further claims he has been denied medical treatment,
including being moved 15 times since the incident to keep him from obtaining treatment.
(Id. at 9).
Plaintiff brought his complaint against Baldwin County Sheriff Huey “Hoss” Mack,
Correctional Officers Ephraim and Peoples, Lieutenant Michael S. Gaull, “Lady with
Milky Eye,” Dale Arthur Byrnes, the CERT Team,2 and Nurse Simmons for excessive
force used against him and deliberate indifference to serious medical needs in violation
of the Fourteenth Amendment and is requesting monetary relief in the amount of
$500,000. (Doc. 1 at 9). Defendants have answered the complaint and submitted special
reports denying the allegations asserted against them (see Docs. 14-17, 22, 30-32, 34,
42, 43) and have also requested the Court consider their reports be treated as a motion
for summary judgment. (See Docs. 22 at 21, 30 at 28). Consequently, the undersigned
converted Defendants’ special reports, attached exhibits, and filings to a motion for
summary judgement. (Doc. 47). This motion is now ripe for consideration.
II. STANDARD OF REVIEW
Summary judgment is proper “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); see Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 2009)
(“[S]ummary judgment is appropriate even if ‘some alleged factual dispute’ between the
2 See, infra, section III., C., 2. for explanation on the defendants that will proceed in this
action.
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parties remains, so long as there is ‘no genuine issue of material fact.’”) (emphasis in
original) (citation omitted). “An issue of fact is ‘material’ if it might affect the outcome of
the suit under governing law and it is ‘genuine’ if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Ave. CLO Fund, Ltd. v. Bank of Am.,
N.A., 723 F.3d 1287, 1294 (11th Cir. 2013) (quotations omitted). “As to materiality, the
substantive law will identify which facts are material. Only disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or unnecessary will not be
counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The party asking for 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. v. Catrett, 477 U.S. 317, 323 (1986). The movant can meet
this burden by presenting evidence showing there is no dispute of material fact, or by
showing or pointing out to the district court that the nonmoving party has failed to present
evidence in support of some element of its case on which it bears the ultimate burden of
proof. Id. at 322-24.
Once the moving party has met its burden, “the burden shifts to the nonmoving
party to show that specific facts exist that raise a genuine issue for trial.” Dietz v.
Smithkline Beecham Corp., 598 F.3d 812, 815 (11th Cir. 2010). This requires the
nonmovant to “either point to evidence in the record,” Hammer v. Slater, 20 F.3d 1137,
1141 (11th Cir. 1994), or “to go beyond the pleadings and by [its] own affidavits, or by
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the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific
facts showing that there is a genuine issue for trial.’” ThyssenKrupp Steel USA, LLC v.
United Forming, Inc., 926 F. Supp. 2d 1286, 1290 (S.D. Ala. 2013) (citing Celotex, 477
U.S. at 324); see also Fed. R. Civ. P. 56(e). The nonmoving party “must do more than
show that there is some metaphysical doubt as to the material facts.” Id. (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). At the same
time, “the evidence of the nonmovant must be believed and all justifiable inferences must
be drawn in its favor.” Id.
The requirement to view the facts in favor of the nonmoving party extends only to
“genuine” disputes over material facts. Garczynski, 573 F.3d at 1165. “A genuine dispute
requires more than ‘some metaphysical doubt as to material facts.’” Id. (citations
omitted). A “mere scintilla” of evidence is insufficient; the nonmoving party must produce
substantial evidence in order to defeat a motion for summary judgment. Id. In addition,
“[t]here is no burden upon the district court to distill every potential argument that could
be made based upon the materials before it on summary judgment.” Resolution Trust
Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995). More importantly, where
“opposing parties tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris,
550 U.S. 372, 380 (2007).
III. LEGAL ANALYSIS
Defendants have responded to Conner’s complaint and denied the allegations
asserted against them. Defendants contend Conner’s constitutional rights were not
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violated while he was incarcerated at the jail and further contend that his claims are barred
by 42 U.S.C. § 1997e of the Prison Litigation Reform Act. (See Docs. 22, 30). Defendants
Kendrick McNeal, Michael Gaull, Huey “Hoss” Mack, Deiondra Peoples, and Qshequila
Ephraim (the “officer defendants”), further contend they are entitled to various immunity
defenses. (Doc. 30 at 11).
A. Conner’s claims are not barred by 42 U.S.C. § 1997e.
Pursuant to the Prison Litigation Reform Act (“PLRA”), inmates must exhaust all
administrative remedies, including prison grievance remedies, before filing suit under 42
U.S.C. § 1983. See 42 U.S.C. § 1997e(a). The law is clear that “[a]n inmate need exhaust
only such administrative remedies as are ‘available.’” Ross v. Blake, 578 U.S. 632, 648
(2016). For a remedy to be “available,” it must be “accessible” and “‘capable of use’ to
obtain ‘some relief for the action complained of.’” Id. at 642 (quoting Booth v. Churner,
532 U.S. 731, 738 (2001)). “[F]ailure to exhaust is an affirmative defense under the
PLRA.” Varner v. Shepard, 11 F.4th 1252, 1257 (11th Cir. 2021) (quoting Jones v. Bock,
549 U.S. 199, 216 (2007)). In determining whether a complaint should be dismissed for
failing to exhaust administrative remedies, courts must take the plaintiff's version of facts
as true. Varner, 11 F.4th at 1257.
The officer defendants contend that Baldwin County Corrections Center’s
grievance process requires inmates to submit an Inmate Request form that is located on
the jail kiosk; if that does not resolve the inmate's complaint, the inmate must then
complete an Inmate Grievance form on the jail kiosk. (Doc. 30 at 13; Doc. 30-10 at 3).
Per the jail’s handbook, an “Inmate Grievance” must be submitted within five days of the
incident; the grievance is then investigated and answered, in writing, within five days of
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the time it is received, excluding weekends and holidays. (Doc. 30-10). The grievances
are answered by the appropriate staff at the lowest level in the chain of command and
may be continued up higher chains of command, until reviewed by the Sheriff, who will
make a final decision. (Id.). The Inmate Grievance policy also allows for inmate
grievances to be made to “any officer within the grievance chain” where the “grievance is
of a sensitive nature.” (Id.).
The officer defendants assert that Conner did not submit a grievance regarding the
excessive force used against him on Thursday, May 12, 2022. (Doc. 30 at 14). Contrarily,
Conner claims he submitted a grievance to Lt. Michael Gaull. (Doc. 1 at 10). The record
confirms that Lt. Michael Gaull received a grievance (through Conner’s “significant
other”), and Lt. Gaull testifies that he passed the grievance complaint on to Sheriff Mack,
and the incident was investigated by the Sheriff’s Office. (Doc. 30-2). Additionally, Sheriff
Mack testifies that the FBI Mobile Resident Field Office also reviewed the grievance
claims made by Conner. (Doc. 30-1). The record also confirms that Conner was moved
from the jail on Tuesday, May 17, 2022, and Conner asserts that he has “filed grievance
at each and every one of the 15 facilities that the United States Marshals Services moved
him to over the 20 months that followed the incident,” describing the “injuries of the assault
and the perpetrators that committed the crime.” (Doc. 1 at 11).
Because Conner claims that the force used against him was, at least in part, in
retaliation for the grievance filed on May 11, 2022, it’s arguable that his complaint was
“sensitive” in nature enough to be made to an officer (versus through the kiosk) and that
the jail’s administrative remedies were not “available” to him. Turner v. Burnside, 541
F.3d 1077 (11th Cir. 2008) (administrative remedy was not “available” under the PLRA
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where the use of the remedy will result in retaliation or bodily harm). Also, because the
grievance was “investigated” by the jail, the purpose of the jail’s policy and § 1997e(a)
was met:
Congress enacted § 1997e(a) to reduce the quantity and improve the quality
of prisoner suits; to this purpose, Congress afforded corrections officials
time and opportunity to address complaints internally before allowing the
initiation of a federal case. In some instances, corrective action taken in
response to an inmate's grievance might improve prison administration and
satisfy the inmate, thereby obviating the need for litigation. Booth, 532 U.S.
at 737, 121 S. Ct. 1819. In other instances, the internal review might “filter
out some frivolous claims.” Ibid. And for cases ultimately brought to court,
adjudication could be facilitated by an administrative record that clarifies the
contours of the controversy. See ibid.; see also Madigan, 503 U.S., at 146,
112 S. Ct. 1081.
Porter v. Nussle, 534 U.S. 516, 524–25 (2002). Notably, Conner’s “grievance” was taken
all the way up “the chain” to Sheriff Mack, the final decision maker per the jail’s handbook,
and the presented grievance policy does not require any further administrative remedies
for inmates, nor does it provide for grievances to be made by persons outside the jail’s
custody. Consequently, because Conner was transferred a mere five days after the
complained of incident, it appears he exhausted the remedies available to him at the jail.
See Rodriguez v. Westchester Cnty. Jail Corr. Dep't, 372 F.3d 485, 488 (2d Cir.2004)
(finding administrative remedies were “unavailable” to inmate who was transferred from
county jail to state prison); Bradley v. Washington, 441 F.Supp.2d 97, 102–03
(D.D.C.2006) (inmate who sued county jail officials was not required to exhaust jail's
administrative remedies after transfer to two different federal facilities because the jail's
grievance policy did not provide for grievance submission from outside the facility).
Accordingly, because the record confirms that Defendants were made aware of the
challenges raised in the complaint through the grievance Conner submitted to Lt. Gaull,
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and because Defendants proceeded to investigate the claim without requiring Conner to
procced through the jail kiosk, Defendants may not now seek to bar him from bringing this
action for not using the grievance form available through the jail’s kiosk. In other words,
Defendants cannot circumvent their own grievance policy and then utilize § 1997e(a) to
bar Conner from bringing his claim, to do so would necessitate holding Conner to rules
and procedures to which Defendants do not (and did not) themselves follow.
Neither is Conner’s claim barred by § 1997e(e), for lack of physical injury, as
asserted by Nurse Simmons. (Doc. 22 at 12); see also 42 U.S.C. § 1997e(e), which
restricts an inmate from bringing a civil action for “mental or emotional injury suffered
while in custody without a prior showing of physical injury or the commission of a sexual
act. . . .” Nurse Simmons and the officer defendants contend that Conner suffered no
injury from the May 12, 2022, incident. They submit, per medical records, that his reported
hand injury is due to a “slip and fall” in his cell, not the May 12, 2022, incident. (Doc. 22-
2 at 12, 29). Conner, however, asserts that he reported the injury as a fall in his cell “out
of fear, as jail personnel shadowed [him] to medical visits and stood at the door or in the
room, and McNeal threatened that [he] ‘wouldn’t make it to the chair next time.’” (Doc. 51
at 5). He further challenges that the “[r]ecords show wrist cuts, finger injuries, facial
bruising, and head trauma consistent with the assault, not a fall.” (Id.). Accordingly, there
remains a genuine issue of material fact as to the cause and seriousness of Conner’s
injuries which cannot be determined at the summary judgment stage of the case.
(Notably, the parties have pending motions for discovery on this exact issue, see docs.
44, 50.). Also, the Eleventh Circuit has made clear, “that nothing in § 1997e(e) prevents
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a prisoner from recovering nominal damages for a constitutional violation without a
showing of physical injury.” Brooks v. Warden, 800 F.3d 1295, 1307–08 (11th Cir. 2015).
Accordingly, Defendants have not shown that Conner failed to exhaust his
administrative remedies or that his complaint is otherwise barred by § 1997e.
B. Asserted Immunity Defenses.
To the extent Plaintiff is proceeding against the correctional officer defendants in
their official capacities, those claims fail. The Eleventh Amendment, which specifically
prohibits suits against “the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State,” has long been held to apply “equally to suits against a
state brought in federal court by citizens of that state.” Harbert Int'l, Inc. v. James, 157
F.3d 1271, 1277 (11th Cir. 1998). “The state need not be formally named as a defendant
for the amendment to apply; state officials sued in their official capacity are also protected
by the amendment.” Id. (citing Kentucky v. Graham, 473 U.S. 159, 166-67 (1985)); see
also Ala. Const. art. V, § 122 (identifying county sheriffs as part of the state executive
department). Accordingly, Sheriff Mack is entitled to Eleventh Amendment immunity for
the claims brought against him in his official capacity. Parker v. Williams, 862 F.2d 1471,
1476 n.4 (11th Cir. 1989), overruled on other grounds in Turquitt v. Jefferson Cnty., 137
F.3d 1285 (11th Cir. 1998) (“[S]uits against an official in his or her official capacity are
suits against the entity the individual represents.”); Ex parte Ala. Dep't of Mental Health
and Mental Retardation, 937 So. 2d 1018, 1023 (Ala. 2006 (The reason for State
immunity is that a suit against the State, its agencies, or State officers sued in their official
capacities would impermissibly “result in a monetary loss to the State treasury.”); Carr v.
City of Florence, 916 F.2d 1521, 1526 (11th Cir. 1990) (Sheriff State immunity extends
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to a deputy sheriff acting within the line and scope of his employment because they
operate as the sheriff's “alter ego.”).
Additionally, official capacity claims against Sheriff Mack, Lt. Gaull, Lt. McNeal,
and Officers Peoples and Ephraim must fail because 42 U.S.C. § 1983 prohibits a
“person,” acting under color of law, from depriving another of his rights secured by the
United States Constitution. 42 U.S.C. § 1983 (emphasis added). The Supreme Court of
the United States held that state officials, in their official capacities, are not “persons”
under § 1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). Any claims
against the Defendants in their official capacities should be dismissed because they are
not “person[s]” under § 1983; therefore, claims against them in their official capacities
fail to state a claim upon which relief can be granted. Id.; Carr v. City of Florence, 916
F.2d 152 n.3 (11th Cir. 1990) (“In Will v. Michigan Dep’t. of State of Police, 491 U.S. 58
(1989), the Supreme Court held that states and state officials acting in their official
capacities are not ’persons’ subject to liability under 42 U.S.C. § 1983).”).
Moreover, “[q]ualified immunity protects government officials performing
discretionary functions from suits in their individual capacities unless their conduct
violates ‘clearly established statutory or constitutional rights of which a reasonable
person would have known.’” Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003)
(quoting Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002)).
While there is no doubt that the defendants in this action were acting within their roles
as correctional officers at all times when the acts in question occurred, the Eleventh
Circuit has made clear that the defense of qualified immunity “is not available in cases
alleging excessive force in violation of the Eighth Amendment, because the use of force
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‘maliciously and sadistically to cause harm’ is clearly established to be a violation of the
Constitution by the Supreme Court decisions in Hudson and Whitley.” Skrtich v.
Thornton, 280 F.3d 1295, 1301 (11th Cir. 2002) (citation omitted); see also Harlow v.
Fitzgerald, 457 U.S. 800, 815 (1982) (Qualified immunity does not extend to an officer
who “knew or reasonably should have known that the action he took within his sphere of
official responsibility would violate the constitutional rights of the [plaintiff].” (internal
quotation marks omitted and alteration in original). As to any remaining claims, the
officer defendants are entitled to qualified immunity unless Plaintiff can show that their
conduct violated a clearly established statutory or constitutional right of which a
reasonable person would have known. See Belcher v. City of Foley, Ala., 30 F.3d 1390,
1395 (11th Cir. 1994). Therefore, the Court will now address whether this action
identifies any constitutional violation.
C. Claims Under 42 U.S.C. § 1983.
For Conner “to establish a claim under 42 U.S.C. § 1983, he must prove (1) a
violation of a constitutional right, and (2) that the alleged violation was committed by a
person acting under the color of state law.” Martinez v. Burns, 459 F. App'x 849, 850-
851 (11th Cir. 2012) (citing Holmes v. Crosby, 418 F.3d 1256, 1258 (11th Cir. 2005)).
There is no dispute that the named defendants, in their individual capacities, are state
actors for purposes of this action. Thus, to establish his asserted claims, Plaintiff must
show that the named defendants, personally, acted to deprive him of a constitutional
right.
1. Excessive Force
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Conner’s excessive force claim is analyzed under the Fourteenth Amendment,
which “protects a pretrial detainee from the use of excessive force that amounts to
punishment.” Graham v. Connor, 490 U.S. 386, 395 n.10 (1989). To state an excessive
force claim, a pretrial detainee must show only that the force “purposely or knowingly
used against him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389
(2015). The standard for assessing a pretrial detainee's excessive force claim is “solely
an objective one.” Id. Whether conduct is considered objectively reasonable turns on the
“facts and circumstances of each particular case. Id. at 397 (citing Graham, 490 U.S. at
396). As Kingsley instructs:
A court must make this determination from the perspective of a reasonable
officer on the scene, including what the officer knew at the time, not with the
20/20 vision of hindsight. See ibid. A court must also account for the
“legitimate interests that stem from [the government's] need to manage the
facility in which the individual is detained,” appropriately deferring to
“policies and practices that in th[e] judgment” of jail officials “are needed to
preserve internal order and discipline and to maintain institutional security.”
Bell v. Wolfish, 441 U.S. 520, 540, 547, 99 S. Ct. 1861, 60 L. Ed. 2d 447
(1979).
Id. at 397. Kingsley provides six non-exclusive factors for determining whether force is
considered reasonable (or not), including: (1) the relationship between the need for the
use of force and the amount of force used, (2) the extent of the plaintiff's injury, (3) efforts
made by the officer to temper or to limit the amount of force, (4) the severity of the security
problem at issue, (5) the threat reasonably perceived by the officer, and (6) whether the
plaintiff was actively resisting. 576 U.S. at 397.
According to Defendants, “Connor was angry, refused to comply with an officer’s
order [to sit on his bunk until officers left the block], yelled obscenities at officers [like “fuck
y’all bitches”], and acted in a physically aggressive manner [by moving back and forth]”
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(Doc. 30 at 19), such that he required removal from his cell “while officers finished cell
searches.” (Id. at 20-21; see also Doc. 30-3 at 2-3). While being removed from his cell
and escorted to a restraint chair, Lt. McNeal testifies that he “attempted to perform a leg
sweep on Connor to gain control of him” (Doc. 30 at 21), but Connor grabbed a door
handle, which caused Defendant McNeal to fall on the floor.” (Id.). “Officers then assisted
Lt. McNeal in taking Connor to the ground to gain control of him.” (Id.). Once Connor was
under control, he was picked up and escorted to the restraint chair,” evaluated for injuries,
and none were found. (Id.). Defendants have submitted officer reports related to the
March 12, 2022, incident, as well as video footage of the incident.
Defendants, as movants, carry the initial burden on summary judgment of showing
that no issue of material fact exists. Here, Defendants have failed to overcome their
burden. The evidence submitted, particularly the video footage, simply does not “blatantly
contradict” Connor’s version of the facts such that judgment as a matter of law should
enter. Instead, when coupled with Connor’s verified response (Doc. 51), the video footage
creates a genuine question of material fact.
The video footage reflects Connor was in a locked cell at the time Defendants claim
he became angry, irate, and posed a threat. The video shows Conner restrained in
handcuffs throughout his transfer to the restraint chair and does not reflect obvious
resistance by Conner. Accordingly, pivotal questions of fact remain as to whether Connor
posed a security threat, was actively resisting to necessitate a “leg sweep” to “gain
control” over him, and whether the force used was reasonable. The video also has
multiple frames where the parties are out of the camera’s view or individuals are blocking
the view of Connor, making it impossible to verify what is happening. Yet, the “missing
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moments” arguably match Connor’s version of facts. Additionally, Connor challenges the
completeness of the video submissions, arguing that the video footage fails to capture
the entirety of the incident and force used, including footage before the incident occurred
where he was held in G-Dorm while his cell was searched; Defendants’ destruction of his
cell and personal belongings; “a hallway segment where Defendants chanted gang slurs
like ‘Dirty Thirty’ and ‘Fuck the Feds’ while pushing and shoving” him; where his head was
rammed against a metal cage; and where he was “slammed to the ground kneed, kicked,
and punched” by Defendants. (Doc. 51 at 1, 4-5). Lastly, Conner repeatedly declares
that he “did not resist physically, threaten, or cause trouble, and no evidence – incident
reports, video, or audio – shows [his] words warranted the 45-minute punishment or
subsequent assault.” (Id. at 6). He asserts the use of force was “grossly disproportionate”
and exceeded any threat posed by his speech. He further asserts that the chants and
threats made by Defendants “suggest retaliation, not security, drove their actions.” (Id. at
6).
Accordingly, the current record (namely the video evidence) does not blatantly
contradict the sworn statements and consistent allegations of Conner. “[W]hen conflicts
arise between the facts evidenced by the parties,” the court must “credit the nonmoving
party's version.” Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir. 2005) (emphasis
omitted); see also Sears v. Roberts, 922 F.3d 1199, 1206 (11th Cir. 2019) (holding a
verified complaint must be treated as testimony for purposes of summary judgment);
Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253 (11th Cir. 2013) (Courts “routinely
and properly deny summary judgment on the basis of a party's sworn testimony even
though it is self-serving.”) (quoting Price v. Time, Inc., 416 F.3d 1327, 1345 (11th Cir.), as
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modified on denial of reh'g, 425 F.3d 1292 (11th Cir. 2005)). Insomuch as the Court is
presented with conflicting sworn statements of the parties, summary judgment may not
be granted at this time.
At the summary judgment stage, the “court must draw all reasonable inferences in
favor of the nonmoving party, and it may not make credibility determinations or weigh the
evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)
(citations omitted). Credibility determinations and the weighing of evidence are the
functions of a jury, not a judge. Id. “As a general principle, a plaintiff's testimony cannot
be discounted on summary judgment unless it is blatantly contradicted by the record,
blatantly inconsistent, or incredible as a matter of law, meaning that it relates to facts that
could not have possibly been observed or events that are contrary to the laws of nature.”
Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253 (11th Cir. 2013). “However, where
the non-movant relies upon implausible inferences drawn from that evidence, summary
judgment is appropriate.” Marbury v. Warden, No. 22-10916, 2022 WL 17175549, at *1
(11th Cir. Nov. 23, 2022) (citing Cuesta v. Sch. Bd. of Miami-Dade Cty., Fla., 285 F.3d
962, 970 (11th Cir. 2002)).
While “the court should review the record as a whole, it must disregard all evidence
favorable to the moving party that the jury is not required to believe.” Reeves, 530 U.S.
at 151 (citation omitted). This is not a case where “opposing parties tell two different
stories, one of which is blatantly contradicted by the record, so that no reasonable jury
could believe it, [and] a court should not adopt that version of the facts for purposes of
ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).
Instead, the record evidence here consists of viewing video footage against the parties’
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testimony, making this “a classic swearing match, which is the stuff of which jury trials are
made.” Feliciano, 707 F.3d at 1253. Consequently, summary judgment should not be
granted as to Connor’s excessive force claim at this time.
To the extent Conner asserts a claim against Nurse Simmons for excessive force,
for intentionally hurting his finger while restrained in the chair, his claim survives summary
judgment at this stage for two reasons. First, it is unclear from the presented video footage
whether the evaluating nurse touched Connor with the necessary malicious or sadistic
intent to cause pain. (See Doc. 43, video 2022_512_120655_10). Second, Nurse
Simmons has failed to respond to this allegation in her answer or special report.
Consequently, the movant has not carried her burden of showing there are no genuine
issues of material fact as to this claim such that summary judgment should be entered in
her favor.3
2. Liability of Named Defendants.
In bringing his complaint, Plaintiff Conner identified defendants with specificity,
either by name or by detailed descriptions. The liability of certain defendants, however, is
not borne out by the record, and these defendants should be dismissed from the action.
To start, Connor named as defendants Dale Arthur Byrnes, Sheriff Mack, and Lt.
Gaull. (Doc. 1 at 3-4). Yet, Connor failed to direct a single allegation against these
defendants. First, Conner did not allege Dale Arthur Byrnes personally participated in the
use of force against him or in the denial of medical care. Nor has Conner causally
3 Notably, review of the record supports that Nurse Simmons was likely not the nurse who
evaluated Conner in the restraint chair on May 12, 2022. To the extent that Nurse
Simmons is not the correct defendant and Conner wants to proceed with this claim, he
should seek leave to amend his complaint.
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connected Dale Arthur Burnes to any alleged constitutional violation. For these reasons,
Conner has failed to state a claim against Dale Arthur Byrnes, and it is RECOMMENDED
that Dale Arthur Byrnes be dismissed without prejudice from this action.
Similarly, Conner does not identify an affirmative action taken by Defendants
Sheriff Mack or Lt. Gaull. To the extent he seeks to hold them liable as supervisors, he
has failed to causally connect either to a constitutional violation through establishing a
history of widespread abuse at the jail, identifying a policy or custom put in place by the
supervisor that results in deliberate indifference to constitutional rights, or facts to support
that either supervisory defendant knew that subordinates would act unlawfully and failed
to stop them from doing so. Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003).
Nothing in Conner’s complaint reflects that Sheriff Mack or Lt. Gaull had subjective
knowledge that Conner was at a subjective risk of substantial harm and acted with
deliberate indifference to the risk (by failing to reasonably respond to the risk). See also
Docs. 30-1; 30-2. Instead, Conner alleges an isolated incident that does not rise to a
constitutional violation on the parts of Sheriff Mack and Lt. Gaull. It is therefore
REOMMENDED that Sheriff Mack and Lt. Gaull be granted summary judgment on the
claims asserted against them, and that they be dismissed without prejudice from this
action.
Conner also named Officers Ephraim and Peoples as defendants in his complaint.
In response to the allegations asserted against her, Defendant Ephriam, by personal
affidavit, testified that she was not present during the shakedown of Conner’s block nor
was she present for the removal of Conner from his cell, as she was not scheduled to
work on May 12, 2022. (Doc. 30-5). Likewise, Defendant Peoples has testified that she
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worked the Pod on May 12, 2022, but she did not witness Conner being moved from his
cell to the restraint chair nor did she have any personal recollection or knowledge of any
other allegations contained in Conner’s Complaint. (Doc. 34-1). Based on these
responses, Conner appears to have requested that Officers Ephraim and Peoples be
voluntarily dismissed from this action. (See Doc. 51 at 15). Accordingly, it is
RECOMMENDED that Officers Ephriam and Peoples be dismissed without prejudice
from this action.
Additionally, Conner named the CERT Team as a defendant in his complaint. After
an examination of federal law and Alabama state law, the Court concludes that the CERT
Team is neither an entity capable of being sued, nor is it a “person” for § 1983 purposes.
Thus, a claim against this Defendant is frivolous. See Butler v. ALDOC CERT Team, No.
CV 20-0236-KD-MU, 2020 WL 13823957, at *1 (S.D. Ala. July 2, 2020). Moreover,
Defendants maintain that the CERT Team was not deployed to conduct the May 12, 2022,
search; rather, the search was carried out by shift personnel, which may potentially
include CERT members. (Doc. 30-1). No record evidence contradicts Defendants’
assertion, and neither does Connor dispute it. For these reasons, it is RECOMMENDED
that the “CERT Team” be dismissed without prejudice from this action.
Notably, based on information produced by Defendants, Conner has obtained the
correct names of the officers who participated in the May 12, 2022, incident, including
DSC Smith, DCS Bonds BC 82, Lt. L. Woods BC 5, DSC T. Allen BC 86, DSC C. Rowell
BC 67, DSC J. Lord BC 79, and Lt. Sanders. (See doc. 42-1). In response to this motion,
Conner requests to add these officers as defendants. (See Doc. 51 at 15). Conner should
know that if his report and recommendation is adopted by the Chief District Court Judge,
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he will be granted an opportunity to amend his complaint to include the newly discovered
defendants.
3. Denial and/or Delay of Medical Care.
The Constitution prohibits indifference to an inmate’s serious medical needs so
deliberate that it “constitutes the unnecessary and wanton infliction of pain.” Estelle v.
Gamble, 429 U.S. 97, 104 (1976). “To prevail on a claim of deliberate indifference, a
plaintiff must show: (1) a serious medical need; (2) defendant's deliberate indifference to
that need; and (3) causation between the defendant's indifference and the plaintiff's
injury.” McDaniels v. Lee, 405 F. App'x 456, 458 (11th Cir. 2010) (citing Mann v. TaserInt'l,
Inc., 588 F.3d 1291, 1306-07 (11th Cir. 2009)). To satisfy the first objective element,
Plaintiff must prove his condition was, in fact, a serious medical need. “A ‘serious medical
need’ is one that is diagnosed by a physician as requiring treatment or one that is so
obvious that a lay person would recognize the need for medical treatment.” Pourmoghani-
Esfahani v. Gee, 625 F.3d 1313, 1317 (11th Cir. 2010) (internal quotations omitted). “To
satisfy the subjective element of [a] deliberate indifference [claim, a] ... Plaintiff must prove
three subparts: (1) subjective knowledge of a risk of serious harm; (2) disregard of that
risk; (3) by conduct that is more than [gross] negligence.” Bozeman v. Orum, 422 F.3d
1265, 1272 (11th Cir. 2005) (internal quotations omitted). A medical need may be
considered serious if a delay in treating it makes it worse. Danley v. Allen, 540 F.3d 1298,
1310 (11th Cir. 2008). “In either of these situations, the medical need must be ‘one that,
if left unattended, pos[es] a substantial risk of serious harm.’” Farrow v. West, 320 F.3d
1235, 1243 (11th Cir. 2003) (quoting Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir.
2000)).
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“Delay in access to medical attention can violate the Eighth Amendment ... when
it is tantamount to unnecessary and wanton infliction of pain.” Hill v. Dekalb Reg'l Youth
Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994), overruled in part on other grounds by Hope
v. Pelzer, 536 U.S. 730, 739 n. 9 (2002) (internal citations and quotation marks omitted).
However, to succeed in proving that the delay of medical care rose to a constitutional
violation, Plaintiff “must place verifying medical evidence in the record to establish the
detrimental effect of delay in medical treatment to succeed....” Consequently, delay in
medical treatment must be interpreted in the context of the seriousness of the medical
need, deciding whether the delay worsened the medical condition, and considering the
reason for delay. Id. at 1188-89 (internal citations omitted) (footnotes omitted); see also,
Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1307 (11th Cir. 2009). “To survive summary
judgment, a plaintiff must show that the delay attributable to the defendant's indifference
likely caused the plaintiff's injury.” Geobert v. Lee Cnty., 510 F.3d 1312, 1329 (11th Cir.
2007).
Here, Plaintiff generically challenges that Defendants denied him medical care for
his finger. The record reflects that during Conner’s intake history and physical
assessment upon entering the jail, he reported that he hurt his finger on his left hand
when he was arrested. (Doc. 22-2 at 3, 8, 11). No bruising or swelling was noted, but
Conner reported a limited range of motion. (Id. at 3, 8). On April 21, 2022, the site
physician was notified of Conner’s complaint, but again, no bruising or swelling was
noted, and the on-site physician advised medical staff to monitor Conner’s hand. Conner’s
index finger was evaluated by a nurse at the tray port in his cell on April 22, 2022, with no
redness, no swelling, and no deformities observed, but Conner did report his finger was
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painful to move or twist. (Id. at 37). On April 23, 2022, Conner’s left hand was again
assessed, with no redness, no swelling, and no deformities noted.4
On April 25, 2022, Conner filed an inmate medication request stating:
“I need Ibuprofen for my hand and back. 800 mg. I am willing to waive the
30 days and pay the 15 dollar cost for x-ray. My hand is broken. Thank you.”
Nurse Everette responded, “You have been assessed more than once for
this complaint. You have also been scheduled for a sick call.” (Doc. 30-7 at
2).
Conner then filed a medical grievance on April 26, 2022, stating:
“I have a broken hand/finger. Left index. I have been denied treatment thus
far. If I have to, I will waive the 30 days and will pay the 15 dollars. This
hurts like hell. As far as why its not swollen, I have no answer, but where
there was once one bone in a fixed position there are now multiple moving
parts. [shattered knuckle] is my opinion. The US Marshal took me down with
this finger the day I was arrested and I’ve been left back here hurting since.
I don’t mind getting my attorney involved but would rather not. I’m not a
waring man. I just want my due process… This is my one time request on
here as I am not a begging man either.. make your choice. I’ve made mine..
sincerely, D. Conner.” (Doc. 30-7 at 3).
Nurse Simmons responded, “You’ve been assessed 3 times, no redness,
swelling or deformities noted. If you wish to have a sick call for a 4th
evaluation I will be more than happy to schedule you one.” (Id.)
Following these complaints of pain, Conner was assessed on April 27, 2022, while no
abrasions or bruising were observed, his finger was noted to be tender to palpitation and
a slight deformity to his knuckle was observed when moved. (Doc. 22-2 at 11-12). Pain
medication was prescribed, and an x-ray was obtained the following day. (Id. at 15). The
x-ray reported no radiographic evidence of acute fracture, no dislocation, and no acute
4 It appears from the record that starting on the evening of April 22, 2022, Conner was
prescribed Tylenol, twice a day, but missed or refused the medication at pill call on April
22 through the morning of April 27, 2022. (Doc. 22-2 at 17).
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disease. (Doc. 22-2 at 42). Conner submitted another inmate medication request on May
2, 2022, stating:
“How long after hand x-ray before a doctor sees me about results?”
Nurse Torres responded, “He won’t if there is nothing wrong with the hand,
which is what your case it.” (Doc. 30-7 at 4).
On May 3, 2022, Conner filed a medical grievance stating:
“I just had an x-ray of my left hand taken by your medical team. You say
there’s nothing wrong with it. I say you’re wrong. It hurts like hell. It popped
when the Marshal grabbed me. It pops every time I try and move it now. It
won’t let me sleep. It hurts constantly. I want a second opinion. I want the
x-ray of my hand released to my federal attorneys Carl Jordan and Domingo
Soto. They are to get one each. ASAP. I will have them deliver it to the
doctors of my choice. I didn’t believe you were going to do anything about
this so I only asked for something to hold it in place until I get to a federal
facility and Motrin to dull the pain. What is 3 days of Ibuprofen good for?
Nothing.. It’s a slap in my face and a blemish on your character as a medical
professional.. you choose to let me hurt. That goes against every letter in
the oath.” (Doc. 30-7 at 5).
Nurse Simmons responded stating, “An x-ray shows bones not ligaments
nor tendons. Your hand has been evaluated 3 times as well as x-rayed.
Please contact your lawyers to come and pick up what you feel they need
to. I will have you sign a release so they will be able to receive your records.
Also Motrin is available in the commissary for your convenience. Have a
fabulous day!” (Id.).
Conner submitted another medical grievance on May 3, 2022, stating:
“So, you’re saying that the x-ray is inadequate and there is something wrong
with my ligaments and or tendons. Interesting… So what is the next step?
MRI perhaps? I’m very well educated in x-ray and ultrasound technologies
so take your sweet devilish ‘good day’ and give it to the doctor. I don’t want
that kind of help. X-ray was the obvious first step. If you had the power and
authority, would you set up MRI or some ligament/tendon seeing machine
so we can solve this issue? Please bring me the proper release forms for
my attorney so I may sign them even though we’re continuing our search
for my relief?? …” (Doc. 30-7 at 6).
Nurse Everett responded to the grievance stating, “Medical does not give
out legal forms.” (Id.).
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On May 4, 2022, Nurse Simmons scheduled Conner an appointment with the on-
site physician to evaluate his left hand. (Doc. 22-2 at 24). On May 5, 2022, Conner was
seen by the on-site physician, who noted the normal x-ray report and assessed arthritic
changes to the joint on Conner’s left second finger and prescribed Conner Ibuprofen
600mg, twice a day, for 30 days, for pain. (Id. at 16). No other sick call slips were
submitted regarding Conner’s hand until May 15, 2022.
On May 15, 2022, Conner complained his left-hand pinky finger was injured on the
12th; that it was bruised/purple and hurting and not wanting to move right, also that his
index finger was re-injured along with [his] neck, back and hernia mesh . . . and right wrist.
(Id. at 29). He was evaluated the same day, where he reported throbbing, radiating and
constant pain that rated an 8 out of 10. (Id. at 12-13). Bruising was noted to his left hand,
5th finger, which he was unable to fully bend, it was tender to palpitation, and redness and
swelling were observed. (Id. at 13). Conner was instructed on how to “buddy tape” his 4th
and 5th fingers, and he was put on activity restriction for 2 days. (Id. at 13, 31). Conner
claims he was scheduled for an x-ray of his pinky finger but was transferred from the jail
before it was received. (Doc. 1 at 26). He also claims that although chart notations were
not made in his medical record, he was called to medical every day up until he was
transferred from the jail and was bandaged when transferred from the jail. (Id.).
Assuming without deciding the seriousness of Conner’s hand injury, the record
supports that Conner received ample and adequate medical care and that no medical
staff, including Nurse Simmons, was deliberately indifferent to his medical needs at any
time. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (deliberate indifference requires
showing a defendant acted wantonly to a serious medical need). “A core principle of
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Eighth Amendment jurisprudence in the area of medical care is that prison officials with
knowledge of the need for care may not, by failing to provide care, delaying care, or
providing grossly inadequate care, cause a prisoner to needlessly suffer the pain resulting
from his or her illness." McElligott v. Foley, 182 F.3d 1248, 1257 (11th Cir. 1999). "It is
obduracy and wantonness, not inadvertence or error in good faith, that characterize the
conduct prohibited by the Cruel and Unusual Punishment Clause." Whitley v. Albers, 475
U.S. 312, 319 (1986). Here, the record shows Conner received prompt treatment for each
complaint, including examinations, referrals to the on-site physician, x-rays, and pain
medication. It is clearly established that Conner repeatedly received conservative
treatment for his complaints of hand and finger pain. For these reasons, the record does
not support Conner’s claim that Nurse Simmons acted with deliberate indifference to his
left-hand index or pinky finger injuries.
The mere fact that Conner disagrees with the efficacy of the treatment or simply
prefers a different course of treatment does not state a valid claim of medical mistreatment
under the Eighth Amendment. See Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir. 1995)
(whether defendants “should have employed additional diagnostic techniques or forms of
treatment ‘is a classic example of a matter for medical judgment’ and therefore not an
appropriate basis for grounding” constitutional liability); Harris v. Thigpen, 941 F.2d 1495,
1505 (11th Cir. 1991) (explaining that a difference in medical opinion between the prison’s
medical staff and the inmate about the inmate’s course of treatment will not support a
claim of cruel and unusual punishment). “When a prison inmate has received medical
care, courts hesitate to find [a constitutional ] violation.” Waldrop, 871 F.2d at 1035; see
also Trotter v. Correctional Medical Services, Inc., 2008 WL 2225696 at *9 (S.D. Ala. May
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29, 2008) ("It is well-established that a difference in opinion or a disagreement between
an inmate and prison officials as to what medical care is appropriate for his particular
condition does not state a claim for deliberate indifference to medical needs."); Ramos v.
Lamm, 639 F.2d 559, 575 (10th Cir. 1980) (noting that a difference of opinion between
inmate and prison medical staff regarding treatment or diagnosis does not itself state a
constitutional violation), cert. denied, 450 U.S. 1041 (1981). Moreover, Conner has not
put forth any medical evidence that his injury has worsened over time such that any delay
in medical care rises to the level of a constitutional violation.
Accordingly, Conner has failed to offer any evidence demonstrating that any
Defendant acted with deliberate indifference in providing him medical treatment while
confined at the Baldwin County Corrections Center. For these reasons, it is recommended
that summary judgment be GRANTED in favor of Nurse Simmons as to Conner’s claim
for denial of medical care, and it is further recommended that Conner’s claim for denial of
medical care be DISMISSED from this action without prejudice.
IV. CONCLUSION
Based on the foregoing, the undersigned RECOMMENDS that:
1. Any claims asserted against the officer defendants in their official capacities be
DISMISSED as they are immune from suit in their official capacities;
2. Defendants Dale Arthur Byrnes, Sheriff Huey “Hoss” Mack, Lt. Michael Gaull
Officer Qshequila Ephraim, Officer Deiondra Peoples, and the CERT team be
DISMISSED without prejudice from this action.
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3. Summary judgment be GRANTED in favor of Nurse Simmons as to Conner’s claim
for denial of medical care and that the denial of medical care claim be DISMISSED
without prejudice in its entirely;
4. Summary judgment be DENIED as to Conner’s excessive force claim, which shall
proceed against the remaining defendants, Lt. Kendrick McNeal and Nurse Joyce
Simmons, and that Conner be given the opportunity to amend his complaint to
include newly discovered defendants.
NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties in the
manner provided by law. Any party who objects to this recommendation or anything in it
must, within fourteen (14) days of the date of service of this document, file specific written
objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b);
S.D. ALA. GenLR 72(c). The parties should note that under Eleventh Circuit Rule 3-1,
"[a] party failing to object to a magistrate judge's findings or recommendations contained
in a report and recommendation in accordance with the provisions of 28 U.S.C. §
636(b)(1) waives the right to challenge on appeal the district court's order based on
unobjected-to factual and legal conclusions if the party was informed of the time period
for objecting and the consequences on appeal for failing to object. In the absence of a
proper objection, however, the court may review on appeal for plain error if necessary in
the interests of justice." 11th Cir. R. 3-1. To be specific, an objection must identify the
specific finding or recommendation to which objection is made, state the basis for the
objection, and specify the place in the Magistrate Judge's report and recommendation
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where the disputed determination is found. An objection that merely incorporates by
reference or refers to the briefing before the Magistrate Judge is not specific.
DONE this the 2nd day of July, 2025.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE
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