Conner v. McNeal et al

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DANIEL DEWAYNE CONNER, 	)
)
Plaintiff, 	)
)
vs. 	) 	CIVIL ACTION: 24-0068-JB-MU
)
KENDRICK McNeal, et al., 	)
)
Defendants. 	)
MEMORANDUM OPINION AND ORDER
On July 2, 2025, the Magistrate Judge entered a Report and Recommendation
that summary judgment be granted, in part, and dismissed, in part. See Doc. 53. Plaintiff
Conner 	and 	Defendant 	Nurse 	Simmons 	have 	objected 	to 	the 	Report 	and
Recommendation. See Docs. 54, 56. After a thorough review of the record, the Report
and Recommendation is hereby ADOPTED as MODIFIED.
In response to the Report and Recommendation, Plaintiff objects to dismissal of
his deliberate indifference to medical care claim (doc. 54 at 1-2), and Nurse Simmons
objects to her continuation as a party to Plaintiff’s excessive force claim (doc. 56 4-5).
Pertinent here, Plaintiff asserts in his objection to the Report and Recommendation:
Upon further review of the partial video footage submitted by defendants,
Plaintiff has determined that the finger-twisting incident while restrained in
the chair was committed by an officer, not Nurse Simmons. The video
shows the nurse checking the handcuffs, standing between Plaintiff and the
officer, and the officer grabbing Plaintiff’s finger. This officer stood by as
Plaintiff ate his sandwiches. This correction does not undermine the broader
deliberate indifference claim but redirects the finger-twisting allegation to
the correct defendant, whom Plaintiff seeks to identify through further
discovery or amendment.
Doc. 54 at 2-3. Because Plaintiff acknowledges that Defendant Nurse Simmons was not
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the individual responsible for “the finger-twisting incident, the Court determines that
Defendant Nurse Simmons is due to be DISMISSED from this action, and that summary
judgment should enter in her favor on all claims. To the extent that Plaintiff now argues
or insinuates that following the assault, he “visibly urinated blood for at least two weeks,
indicating severe internal injury, yet received inadequate medical attention, with no
diagnostic follow-up for this condition” (Doc. 54 at 2; citing Doc. 51 at 5), he is attempting
to raise or support a substantial claim with new allegations. This is not allowed. Asserting
substantial claims, for the first time, in a response to summary judgment is simply an
improper extension of the complaint, amounting to an amended complaint, and is not
allowed at the summary judgment stage of the proceedings. GeorgiaCarry.Org, Inc. v.
Georgia, 687 F.3d 1244, 1258 n. 27 (11th Cir.2012) (“It is well-settled in this circuit that a
plaintiff may not amend the complaint through argument at the summary judgment phase
of proceedings.”). For this reason, Plaintiff’s allegations will not be considered in
opposition to the motion.
The Court has considered these and Plaintiff’s other objections, and after due and
proper consideration of all portions of this file deemed relevant to the issues raised, and
a de novo determination of those portions of the Recommendation to which objection is
made, 	the 	Recommendation 	of 	the 	Magistrate 	Judge 	made 	under 	28 	U.S.C. 	§
636(b)(1)(B) is ADOPTED AS MODIFIED as the opinion of this Court. It is ORDERED
that:
1. 	Defendants 	Byrnes, 	Sheriff 	Mack, 	Lt. 	Gaull, 	Officer 	Ephraim, 	Officer
Peoples, and the CERT team are DISMISSED with prejudice from this action;
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2. 	Summary judgment is GRANTED in favor of Nurse Simmons as to all
claims, and she is DISMISSED with prejudice from this action;
3. 	The claim for denial of medical care is DISMISSED with prejudice from this
action; and
4. 	Summary judgment is DENIED as to Conner’s excessive force claim, with
leave to amend complaint to include newly discovered defendants.
DONE and ORDERED this 8th day of August, 2025.
/s/ JEFFREY U. BEAVERSTOCK
CHIEF UNITED STATES DISTRICT JUDGE
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