Spann v. Lovejoy (INMATE1)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

STEVEN QUIN SPANN, )

AIS #251840, )

)

Plaintiff, )

)

v. ) CASE NO. 2:19-CV-706-WKW-KFP

)

DRANARRIS LOVEJOY, et al., )

)

Defendants. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

Plaintiff Steven Quin Spann, an inmate at the Donaldson Correctional Facility in

Bessemer, Alabama, filed pro se this civil rights action under 42 U.S.C. § 1983 alleging

certain violations of his federally protected rights while incarcerated in the Easterling

Correctional Facility in Clio, Alabama. Doc. 1. Plaintiff brings suit against Easterling

employees Dranarris Lovejoy, Anthony Crittenden, and Timothy Isaac for their alleged use

of excessive force, failure to protect, and deliberate indifference to Plaintiff’s serious

medical needs. Id. For relief, Plaintiff requests monetary damages for his pain and

suffering. Id. at 5.

Pursuant to the Court’s orders, Defendants filed an Answer and Special Report with

supporting evidentiary materials addressing Plaintiff’s claims for relief. Doc. 22. The Court

subsequently informed Plaintiff that Defendants’ special report may, at any time, be treated

either as a motion to dismiss or a motion for summary judgment, and the Court explained

to Plaintiff the proper manner to respond to a motion for summary judgment. Doc. 23.

Plaintiff filed his response to Defendants’ special report (Doc. 24), and this case is now

pending on Defendants’ Motion for Summary Judgment (Doc. 22). Upon consideration of

the motion, the supporting evidentiary materials, and Plaintiff’s opposition, the Court

concludes that the motion is due to be GRANTED in part and DENIED in part, as set forth

below.

I. STANDARD OF REVIEW

To survive the properly supported Motion for Summary Judgment submitted by

Defendants, Plaintiff must produce some evidence supporting his constitutional claims. See

Celotex v. Catrett, 477 U.S. 317, 322 (1986). He must “go beyond the pleadings and . . .

designate ‘specific facts showing that there is a genuine issue for trial.’” Id. at 324. A

plaintiff’s conclusory allegations do not provide sufficient evidence to oppose a motion for

summary judgment. Harris v. Ostrout, 65 F.3d 912 (11th Cir. 1995); Fullman v. Graddick,

739 F.2d 553, 556-57 (11th Cir. 1984). Consequently, when a plaintiff fails to make a

showing sufficient to establish the existence of an element essential to his case, and on

which he will bear the burden of proof at trial, summary judgment is due to be granted in

favor of the moving party. Celotex, 477 U.S. at 322; Barnes v. Southwest Forest Indus.

Inc., 814 F.2d 607 (11th Cir. 1987). Where all the evidentiary materials before the court

indicate that there is no genuine issue of material fact and that the party moving for

summary judgment is entitled to it as a matter of law, the entry of summary judgment is

proper. Celotex, 477 U.S. at 322; Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir. 1987).

Although factual inferences must be viewed in a light most favorable to the non-

moving party and pro se complaints are entitled to liberal interpretation by the courts, a pro

se litigant does not escape the burden of establishing a genuine issue of material fact. Brown

v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990). “The leniency the Court must apply does

not mean the normal summary judgment standard is discarded; nor can the Court accept

factual averments completely unsupported by the record.” Jones v. Wal-Mart Assocs., Inc.,

No. 1:19-CV-03705-SDG, 2021 WL 243285, at *2 (N.D. Ga. Jan. 25, 2021) (citing Nawab

v. Unifund CCR Partners, 553 F. App’x 856, 860 (11th Cir. 2013) (“Although a pro se

complaint is entitled to a less strict interpretation, a pro se plaintiff is not excused from

meeting the essential burden of establishing that there is a genuine issue as to a fact material

to his case. When a nonmoving party’s response consists of nothing more than conclusory

allegations, summary judgment is not only proper but required.”) (citation and punctuation

omitted in original); Nalls v. Coleman Low Fed. Inst., 307 F. App’x 296, 298 (11th Cir.

2009) (“[A] pro se litigant does not escape the essential burden under summary judgment

standards of establishing that there is a genuine issue as to a fact material to his case in

order to avert summary judgment.”)).

In this case, while Plaintiff has not established a genuine issue of material fact to

preclude summary judgment on his claims of deliberate indifference, he has established a

genuine issue of material fact to preclude summary judgment on his claims of excessive

force and failure to protect asserted against Defendants in their individual capacities.

II. FACTUAL BACKGROUND

Plaintiff commenced this pro se action for alleged violations of his federally

protected constitutional rights while confined at Easterling. Doc. 1. He alleges that

Defendant Crittenden opened Plaintiff’s cell and allowed Defendants Lovejoy and Isaac to

physically assault him. Id. at 3. Plaintiff further alleges that, after the assault, his medical

treatment was delayed for approximately seven hours and, when he eventually received

medical care, he was treated for “multiple fractured bones, a concussion, and many

lacerations and bruises.” Id. Plaintiff’s claims stem from the facts below, viewed in the

light most favorable to Plaintiff.

On November 11, 2018, Defendant Lovejoy filed a “Duty Officer Report”

describing an incident involving Plaintiff. See Doc. 22-6. According to the report:

On November 11, 2018, at approximately 10:45 AM, [Defendants Lovejoy,

Isaac, and Crittenden] responded to Restrictive Housing Unit cell B-16,

which housed inmates Jamarian Thornton…and [Plaintiff] due to inmates

yelling ‘man down in 16 cell.’ [Defendant Lovejoy] approached the cell and

observed inmate Thornton slumped over on the toilet complaining that he

could not breathe. [Defendants Crittenden and Isaac] removed inmate

Thornton from the cell and began escorting inmate Thornton to the lobby

area. [Defendant Lovejoy] attempted to close the cell door. As [Defendant

Lovejoy] closed the cell door, [Plaintiff] swung with a closed fist and

punched [Defendant Lovejoy] in the facial area. [Defendant Lovejoy] swung

with a closed fist and struck [Plaintiff] in the facial area, grasped [Plaintiff]

and placed [Plaintiff] on the floor. [Defendant Isaac] reported back to the cell

and placed handcuffs on [Plaintiff]. All force ceased. [Defendant Lovejoy]

attempted to get [Plaintiff] escorted to the Health Care Unit to be assessed

by the medical staff but [Plaintiff] refused. At approximately 7:10 PM,

Correctional Sergeant Kendrick Boyd escorted [Plaintiff] to the Health Care

Unit to be assessed by the medical staff. The medical staff noted redness and

abrasions to the back, a bruised right eye and swelling to the right hand. At

approximately 10:40 PM, [Defendant Lovejoy] reported the incident to

Correctional Captain Joseph Danzey. [Plaintiff] remained in the Restrictive

Housing Unit pending disciplinary action for rule violation; Assault on

person associated with ADOC.

Id. Pursuant to the Incident Report subsequently filed by Captain Danzey:

On November 11, 2018, at approximately 7:01 PM, [Plaintiff] reported to

Sergeant Kendrick Boyd that he was assaulted at approximately 2:00 PM, by

[Defendants Lovejoy and Isaac]. [Plaintiff] alleged that [Defendants Lovejoy

and Isaac] entered his cell and beat him because he was kicking on the cell

door. [Plaintiff] stated that he struck [Defendant Lovejoy] in the face during

the altercation. At approximately 7:10 PM, Sergeant Boyd entered the Health

Care Unit with [Plaintiff] for a medical assessment. [Plaintiff] was examined

by Nurse Clayton Fuller. Nurse Fuller noted redness and abrasions to

[Plaintiff’s] head and back, bruising underneath the left eye and swelling to

the right hand; see attached medical assessment. At approximately 7:12 PM,

the incident was reported to Captain Joseph Danzey, I&I Investigator David

Gallew, Walter Myers, Warden III, and Institutional Coordinator Cheryl

Price. Investigator Gallew advised Sergeant Boyd that an investigator would

be dispatched to the facility. This incident is pending further investigation by

the Investigations and Intelligence Division.

Doc. 22-5. Plaintiff’s November 11, 2018, body chart (medical examination) indicates that

he had “scattered redness and abrasions” on his back, arms, and left side of face, swelling

to his right hand, and bruising to his left eye. Doc. 22-7. In the section designated for the

inmate’s statement, Plaintiff asserted: “The Officer’s [sic] jumped on me.” Id. Photographs

taken of Plaintiff show that he had abrasions on his back and arm, a bruised left eye, and a

swollen right hand. Doc. 22-9 at 4-7.

On November 11, Plaintiff provided the following written statement of the incident:

I was trying to get an officers [sic] attention to let them know my roommate

needed his breathing treatment. He told me he was going to give me what I

wanted for beating on the window. They took my roommate out and

[Defendant Lovejoy] came in and swung on me and struck me in my face.

When I defended myself, [Defendant Isaac] came in and struck me also.

[Defendant Isaac] held me down while [Defendant Lovejoy] hit me

numerous times. I told them they had it 5 times before they stopped jumping

me. My hands broke [sic] feels like my ribs are broke [sic] and I feel dizzy

when I lay down. I was tryna [sic] help my roommate that’s all. If you look

at [Defendant Lovejoy] the Sgt face I hit him back and he was also [sic]

busted under his eye.

Doc. 22-8. Plaintiff’s medical records indicate that he was prescribed Advil on November

11 and assessed for “mild” contusions. Doc. 22-11 at 1, 12. According to this assessment,

Plaintiff was in an “altercation” at approximately 2:00 p.m. and suffered from scattered

redness and swelling and a swollen right hand. Id. at 12-13. Plaintiff was provided an ace

wrap for his right wrist/hand. Id. at 20.

A few days later on November 14, medical personnel x-rayed Plaintiff’s left eye and

right hand. Id. at 6, 27. According to the radiology report assessing Plaintiff’s eye, Plaintiff

suffered pain and bruising to his left eye. Id. at 6. The findings of Plaintiff’s report assert:

“Possible small chip fracture of the anterior maxillary spine. No orbital fracture is seen.

Walls of the maxillary sinuses appear intact, maxillary sinuses are clear without

opacification or fluid levels. Visualized facial structures are unremarkable.” Id. Plaintiff’s

radiology report recommended a follow-up as clinically indicated and, if there was concern

for an orbit fracture, a CT should be performed. Id. Plaintiff’s right-hand radiology report

noted that, while Plaintiff experienced pain in his hand, there was “no acute fracture,

dislocation, or subluxation.” Id. at 27.

Two days later, Plaintiff submitted a sick call request stating: “I am having very bad

headaches and I feel dizzy when I lay down. If you could please help me asap. Thank you.”

Id. at 15. That same day, Plaintiff was assessed for a headache. Id. at 14. Under the section

asking whether he suffered from a head trauma, seizure, migraine, allergy, HTN, or stress,

Plaintiff indicated that he was in an altercation a few days before and that he had suffered

from headaches since then. Id.

On November 21, Plaintiff had another inmate body chart performed, and it showed

no notable injuries. Id. at 10, 17. On December 9, approximately one month after the

incident, Plaintiff submitted a sick request form stating: “I’ve been feeling sick the last

couple of days. My stomach has been upset and I’ve had really bad headaches.” Doc. 22-

11 at 2. He was assessed for his medical complaint the next day. Id. at 3. While being

assessed, Plaintiff told medical personnel that, although his head and stomach hurt, he did

not suffer from any recent head trauma. Id.

III. DISCUSSION

In his Complaint, Plaintiff alleges Defendant Crittenden opened his cell door and

allowed Defendants Lovejoy and Isaac to physically assault Plaintiff. Doc. 1 at 3. He claims

Defendants Lovejoy and Isaac hit him multiple times in his face, head, stomach, chest,

legs, and back. Id. at 4. Plaintiff further asserts that Defendants denied him medical

treatment for seven hours after the assault and that it was only after shifts changed and

Officer Boyd saw him wounded that he received treatment. Id. Plaintiff maintains that he

was treated for multiple fractures, a concussion, lacerations, and bruising. Id. He denies

punching Defendant Lovejoy first and alleges instead that Defendant Lovejoy punched him

first. Id.; Doc. 24 at 5. Plaintiff contends that, when he tried to defend himself against

Defendant Lovejoy, Defendant Isaac picked him up and slammed him to the floor, where

Defendants Lovejoy and Isaac continued to kick and stomp him. Id.

Defendants assert, among other things, that they are entitled to immunity in their

individual and official capacities and, in any event, that Plaintiff’s claims should be

dismissed because his alleged injuries are de minimis and were incurred when force was

used to maintain order and restore discipline. Defendants further contend that they did not

deny Plaintiff medical treatment. See Doc. 22.

A. Sovereign Immunity

To the extent Plaintiff brings suit against Defendants in their official capacity,

Defendants are entitled to absolute immunity from monetary damages. Official capacity

lawsuits are “in all respects other than name, . . . treated as a suit against the entity.”

Kentucky v. Graham, 473 U. S. 159, 166 (1985). “A state official may not be sued in his

official capacity unless the state has waived its Eleventh Amendment immunity, see

Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100 (1984), or Congress

has abrogated the state’s immunity, see Seminole Tribe v. Florida, [517 U.S. 44, 59], 116

S. Ct. 1114, 1125 (1996). Alabama has not waived its Eleventh Amendment immunity, see

Carr v. City of Florence, 916 F.2d 1521, 1525 (11th Cir. 1990) (citations omitted), and

Congress has not abrogated Alabama’s immunity. Therefore, Alabama state officials are

immune from claims brought against them in their official capacities.” Lancaster v.

Monroe County, 116 F.3d 1419, 1429 (11th Cir. 1997). It is clear that Defendants are state

actors entitled to sovereign immunity under the Eleventh Amendment for claims seeking

monetary damages from them in their official capacities. Lancaster, 116 F.3d at 1429;

Jackson v. Georgia Department of Transportation, 16 F.3d 1573, 1575 (11th Cir. 1994).

B. Qualified Immunity

With respect to Plaintiff’s excessive force claims against Defendants in their

individual capacities, Defendants argue not only that Plaintiff’s claims are subject to

dismissal but also that they are entitled to qualified immunity.

Under the doctrine of qualified immunity, if the defendant establishes that he

was acting within the scope of his discretionary authority when the alleged

excessive force occurred, the burden shifts to the plaintiff to show that the

defendant is not entitled to qualified immunity. Skop [v. City of Atlanta, 485

F.3d 1130, 1136-137 (11th Cir. 2007)]. To defeat qualified immunity, a

plaintiff must show both that a constitutional violation occurred and that the

constitutional right violated was clearly established. Fennell [v. Gilstrap, 559

F.3d 1212, 1216 (11th Cir. 2009) (per curiam) abrogated on other grounds

by Kingsley v. Hendrickson, 576 U.S. 389, 400, 135 S.Ct. 2466 (2015); see

also Patel v. Lanier Cty. Georgia, 969 F.3d 1173, 1186 (11th Cir. 2020)

(“[A]lthough the Johnson/Fennel exception continues to apply to Eighth

Amendment claims, we must abandon it as applied in the Fourteenth

Amendment context”)]. In Eighth Amendment excessive force cases,

however, ‘the subjective element required to establish [the constitutional

violation] is so extreme that every conceivable set of circumstances in which

this constitutional violation occurs is clearly established to be a violation of

the Constitution.’ Johnson v. Breeden, 280 F.3d 1308, 1321-22 (11th Cir.

2002); abrogated on other grounds by Kingsley v. Hendrickson, 576 U.S. at

400.

Bowden v. Stokely, 576 Fed. App’x 951, 954-955 (11th Cir. 2014) (per curiam). “While

. . . there is no per se rule barring qualified immunity in Eighth Amendment cases, where

the plaintiff has sufficiently alleged or shown a material dispute of fact as to an excessive

force claim, summary judgment based on qualified immunity is not appropriate.” Id. at 956

(citing Skrtich v. Thornton, 280 F.3d 1295, 1301 (11th Cir. 2002)). Accordingly, the Court

will consider whether violations of Plaintiff’s Eighth Amendment rights are established

based on his allegations that Defendants Lovejoy and Isaac, without justification,

physically assaulted him while Defendant Crittenden watched and then left Plaintiff

without medical treatment for seven hours, which the Court must take as true for purposes

of summary judgment.

(1) Excessive Force Claims

Claims of excessive force by prison officials against convicted inmates are

governed by the Eighth Amendment’s proscription against cruel and unusual punishment.

Campbell v. Sikes, 169 F.3d 1353, 1374 (11th Cir. 1999). The standard applied to an Eighth

Amendment excessive force claim contains both a subjective and objective component.

Hudson v. McMillian, 503 U.S. 1, 8 (1992). The subjective component requires that prison

“officials act[ed] with a sufficiently culpable state of mind.” Id. (internal quotations

omitted).

On November 11, 2018, at approximately 7:01 p.m., Plaintiff told Correctional

Sergeant Boyd that he was having trouble breathing, needed to go to medical, and had been

in “an altercation with [Defendant Lovejoy].” See Doc. 22-5 at 1; see also Doc. 22-10 at 1.

During Plaintiff’s November 11 medical exam, Plaintiff told medical personnel that he was

“jumped” by officers. Doc. 22-7 at 1. The photographs taken on November 11 show that

Plaintiff had (a) abrasions and redness on his back and arm, (b) a swollen wrist and hand,

and (c) a bruised left eye. Docs. 22-9 at 4-7. Plaintiff’s medical records show that he was

provided an ace wrap for his right wrist/hand. Doc. 22-11 at 20.

His medical records also show that, on November 14, medical personnel x-rayed his

left eye and right hand. Id. at 6, 27. Pursuant to the radiograph findings, while none of the

bones in Plaintiff’s hand or face appeared to be broken, there was a “[p]ossible small chip

fracture of the anterior maxillary spine” in his left eye. Id. Finally, Plaintiff’s medical

records show that he sought medical treatment on November 16 for headaches and

dizziness and informed medical personnel that he was in an altercation a few days prior.

Id. at 14-15.

Regarding the objective component, a plaintiff must show “the alleged wrongdoing

was objectively harmful enough to establish a constitutional violation.” Id. (internal

quotations omitted). In addition, “the use of excessive physical force against a prisoner

may constitute cruel and unusual punishment [even] when the inmate does not suffer

serious injury.” Id. at 4. “Injury and force . . . are only imperfectly correlated, and it is the

latter that ultimately counts. An inmate who is gratuitously beaten by guards does not lose

his ability to pursue an excessive force claim merely because he has the good fortune to

escape without serious injury.” Wilkins v. Gaddy, 559 U.S. 34, 38 (2010). However, “the

relatively modest nature of [an inmate’s] alleged injuries will no doubt limit the damages

he may recover.” Id. at 40.

Under the Eighth Amendment, force is deemed legitimate in a custodial

setting as long as it is applied ‘in a good faith effort to maintain or restore

discipline [and not] maliciously and sadistically to cause harm.’ Whitley v.

Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)

(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)); see also

Hudson v. McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992).

To determine if an application of force was applied maliciously and

sadistically to cause harm, a variety of factors are considered including: ‘the

need for the application of force, the relationship between that need and the

amount of force used, the threat reasonably perceived by the responsible

officials, and any efforts made to temper the severity of a forceful response.’

Hudson, 503 U.S. at 7-8, 112 S.Ct. 995; see also Whitley, 475 U.S. at 321,

106 S.Ct. 1078; Harris v. Chapman, 97 F.3d 499, 505 (11th Cir. 1996). From

consideration of such factors, “inferences may be drawn as to whether the

use of force could plausibly have been thought necessary, or instead evinced

such wantonness with respect to the unjustified infliction of harm as is

tantamount to a knowing willingness that it occur.” Whitley, 475 U.S. at 321,

106 S.Ct. 1078 (quoting Johnson, 481 F.2d at 1033).

Skrtich, 280 F.3d at 1300-1301. “When prison officials maliciously and sadistically use

force to cause harm . . . contemporary standards of decency always are violated . . . whether

or not significant injury is evident. Otherwise, the Eighth Amendment would permit any

physical punishment, no matter how diabolic or inhuman, inflicting less than some

arbitrary quantity of injury.” Wilkins, 559 U.S. at 38 (internal quotations and citation

omitted). Thus, in an excessive force case like this, “the core judicial inquiry is not whether

a certain quantum of injury was sustained, but rather whether force was applied in a good-

faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”

Bowden, 576 Fed. App’x at 953 (internal quotations and citation omitted).

Plaintiff’s evidence reflects that on November 11, 2018, while housed in Easterling,

Defendants Lovejoy and Isaac entered Plaintiff’s cell, Defendant Lovejoy hit Plaintiff in

the head and face, and, when Plaintiff tried to defend himself, Defendant Isaac picked

Plaintiff up and slammed him to the floor. Doc. 24 at 5.1 Plaintiff’s evidence also shows

that Defendants Lovejoy and Isaac kicked and stomped Plaintiff until he was unresponsive

and that Defendant Crittenden stood by the cell door and watched the alleged assault. Id.

Plaintiff told medical personnel that he was “jumped” by officers and that Plaintiff had

redness and abrasions on his back and arm, a bruised left eye, and a swollen right hand.

See e.g., Docs. 22-7 at 1, 22-9 at 4-7.

Even though Defendants dispute the version of events Plaintiff presents (see Docs.

22-2 at 1-2; 22-3 at 1-2; 22-4 at 1-2), the Court is required at this stage of the proceedings

to view the facts in the light most favorable to Plaintiff and draw all reasonable inferences

from those facts in his favor. Bradley v. Franklin Correctional Service, Inc., 739 F.3d 606,

608 (11th Cir. 2014); Anderson v. Liberty Lobby, 477 U.S. at 255 (all justifiable inferences

are to drawn in favor of the party opposing summary judgment). In that vein, Plaintiff states

1 Doc. 24 at 5 is Plaintiff’s affidavit submitted in response to Defendants’ answer and special report.

that he was assaulted by Defendant Lovejoy without reason and then, when he tried to

defend himself, he was picked up and slammed down by Defendant Isaac and then kicked

and stomped until unresponsive. Plaintiff’s medical records show that Plaintiff suffered

injuries, that he required x-rays of his eye and hand, and that he suffered headaches and

dizziness days after the incident. This version of the events could support an excessive

force claim. Bowden, 576 Fed. App’x at 954.

While Defendants deny every allegation Plaintiff asserts, viewing the facts in the

light most favorable to Plaintiff, disputed issues of material fact exist regarding the need

for the use of force, the nature of the force used, and whether Defendants Lovejoy and

Isaac acted “maliciously and sadistically” to cause harm. Skrtich, 280 F.3d at 1301; see

also Rivera v. LeBron, 824 F. App’x 838, 842 (11th Cir. 2020) (“[E]vidence that merely

‘pit[s] the correctional officers’ word against’ an inmate’s is distinct from the type of

videotape evidence that . . . definitively established what happened and what did not.’”)

(citations omitted). Thus, the Court concludes Defendants Lovejoy and Isaac are not

entitled to qualified immunity. Plaintiff has alleged facts sufficient to survive Defendants’

Motion for Summary Judgment regarding Plaintiff’s excessive force claim, and summary

judgment is due to be denied as to the claim against Defendants Lovejoy and Isaac in their

individual capacities.

(2) Failure to Protect Claims

Next, Plaintiff asserts Defendant Crittenden is liable for failing to intervene when

he allegedly watched Defendants Lovejoy and Isaac assault Plaintiff and did nothing to

stop them. “Even when an officer is not a participant in the excessive force, he can still be

liable if he fails to take reasonable steps to protect the victim.” Ledlow v. Givens, 500 Fed.

App’x 910, 914 (11th Cir. 2012) (citing Skrtich, 280 F.3d at 1301). Specifically, “an officer

who is present at the scene and who fails to take reasonable steps to protect the victim of

another officer’s use of excessive force, can be held liable for his nonfeasance.” Fundiller

v. City of Cooper City, 777 F.2d 1436, 1442 (11th Cir. 1985). Thus, a corrections officer’s

failure to intervene in a beating can be the basis for liability for an Eighth Amendment

violation under § 1983 if the corrections officer had a reasonable opportunity to intervene

and refused to do so. Hinds v. Wetzel, No. CV 18-0481-KD-MU, 2020 WL 6732514, at *4

(S.D. Ala. Oct. 21, 2020), report and recommendation adopted, No. CV 1:18-00481-KD-

MU, 2020 WL 6731702 (S.D. Ala. Nov. 16, 2020) (citing Terry v. Bailey, 376 F. App’x

894, 896 (11th Cir. 2010) (in turn citing Ensley v. Soper, 142 F. 3d 1402, 1407 (11th Cir.

1998)); see also Gruenwald v. Maddox, 274 Fed. Appx. 667 (10th Cir. 2008). However,

for liability to attach, the officer must have been in a position to intervene, meaning he

“was physically able and had a realistic chance to intervene and act in time to protect the

inmate Plaintiff.” Hinds, 2020 WL 6732514, at *4 (quoting Seals v. Marcus, 2013 U.S.

Dist. LEXIS 25299, at *19, 2013 WL 656873, at *7 (M.D. Ga. Jan. 25, 2013), report and

recommendation adopted, 2013 U.S. Dist. LEXIS 24128, 2013 WL 663579 (M.D. Ga. Feb.

22, 2013)); see also Smith v. Messinger, 293 F.3d 641, 650-51 (3d Cir. 2002); Lanigan v.

Village of East Hazel Crest, 110 F.3d 467, 477 (7th Cir. 1997).

It follows then, for there to be a failure to intervene, “there must exist an underlying

constitutional violation.” Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir. 2005); Sanders

v. City of Union Springs, 207 Fed. Appx. 960, 965-66 (11th Cir. 2006); Ford v. Fleming,

229 F.3d 1163, 2000 WL 1346392 (10th Cir. Sept. 19, 2000) (unpublished) (holding that

claims involving a failure to intervene were precluded by the jury’s conclusion that no

constitutional violations had taken place). Here, because there is genuine dispute as to

whether there was an unconstitutional use of force, and, taking as true Plaintiff’s sworn

assertions that Defendant Crittenden stood by and watched Defendants Lovejoy and Isaac

assault Plaintiff, the Motion for Summary Judgment regarding Plaintiff’s excessive force

claim against Defendant Crittenden for his failure to protect is due to be denied.

(3) Deliberate Indifference Claims

Last, Plaintiff alleges Defendants denied him medical treatment after the assault and

that he was taken to medical only after shifts changed and Officer Boyd saw that he needed

medical treatment. Doc. 1 at 4; see also Doc. 24 at 5. On the contrary, Defendants Lovejoy

and Isaac contend that Plaintiff refused a medical exam after the incident. Docs. 22-2 at 1,

22-4 at 1.

“The Eighth Amendment’s proscription of cruel and unusual punishments prohibits

prison officials from exhibiting deliberate indifference to prisoners’ serious medical

needs.” Campbell v. Sikes, 169 F.3d 1353, 1363 (11th Cir. 1999) (citing Estelle, 429 U.S.

at 104). To demonstrate a denial of medical care in violation of the Eighth Amendment,

Plaintiff must prove both an objective and subjective component. The objective element

requires Plaintiff to demonstrate the existence of an “objectively serious medical need.”

Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003).

A serious medical need is “‘one that has been diagnosed by a physician as mandating

treatment or one that is so obvious that even a lay person would easily recognize the

necessity for a doctor’s attention.’” Id. (quoting Hill v. Dekalb Reg'l Youth Det. Ctr., 40

F.3d 1176, 1187 (11th Cir. 1994)). “In either of these situations, the medical need must be

one that, if left unattended, pos[es] a substantial risk of serious harm.” Id. (quotation marks

and citation omitted). “For example, we have concluded that a freely bleeding cut that

created a pool of blood on the ground and required stitches presented a serious medical

need.” Hinson v. Bias, 927 F.3d 1103, 1122 (11th Cir. 2019) (citing Aldridge v.

Montgomery, 753 F.2d 970, 972-73 (11th Cir. 1985) (per curiam)). The Eleventh Circuit

has “also found broken bones to constitute a serious medical need.” Id. (citing Brown v.

Hughes, 894 F.2d 1533, 1538-39 (11th Cir. 1990) (per curiam)). “And depending on the

circumstances, severe pain that is not promptly or adequately treated can present a serious

medical need.” Id. (citing McElligott v. Foley, 182 F.3d 1248, 1255-59 (11th Cir. 1999)).

Plaintiff has failed to satisfy this first hurdle. Plaintiff’s medical evidence reflects

that, while medical personnel provided him a wrist brace when he was eventually taken for

treatment, medical personnel thought no medical attention or treatment beyond

administration of Advil was appropriate. Plaintiff’s x-rays further show that, although he

suffered from bruising and pain, he suffered no broken bones. Plaintiff has provided no

medical evidence that his injuries were serious enough to require medical attention any

earlier than when he received it. See Fernandez v. Metro Dade Police Dep’t, 397 F. App’x

507, 514 (11th Cir. 2010). “And, though his alleged injuries likely caused pain and

discomfort, Plaintiff has not provided any medical evidence to suggest that the delay

exacerbated Plaintiff’s injuries to the point of an objectively serious medical need or even

ran the risk of doing so. The medical evidence in the record confirms that Plaintiff’s

asserted symptoms . . . while they no doubt caused him pain, did not indicate a ‘life-

threatening condition[ ] or situation[ ] where it [was] apparent delay would detrimentally

exacerbate the medical problem’ to a lay person, Hill, 40 F.3d at 1187, or ‘one that, if left

unattended, pos[es] a substantial risk of serious harm.’” Fernandez, 397 F. App’x at 514

(citing Farrow, 320 F.3d at 1243) (quoting Taylor v. Adams, 221 F.3d 1254, 1258 (11th

Cir. 2000)). Indeed, Plaintiff’s medical records show that he had no notable injuries ten

days after the alleged assault. Doc. 22-12 at 10. Further, the medical records show, while

Plaintiff complained of headaches in December 2018, he told medical personnel that he

did not suffer from any head trauma to cause his headaches. See Doc. 22-12 at 3. Plaintiff

makes no argument in either his Complaint or his affidavit that his condition worsened due

to the alleged delay in treatment. Consequently, Plaintiff’s deliberate-indifference claim

fails because he did not satisfy the causation requirement. Because the record does not

support the conclusion that Plaintiff suffered a violation of his Eighth Amendment right to

be free from deliberate indifference to a serious medical need, Defendants are entitled to

qualified immunity on this claim.

IV. CONCLUSION

For the reasons above, the Magistrate Judge RECOMMENDS the following:

1. Defendants’ Motion for Summary Judgment (Doc. 22) be GRANTED in part

and DENIED in part, as set forth below:

A. Defendants’ motion regarding Plaintiff’s claims for monetary

damages against Defendants in their official capacity be GRANTED and these claims

DISMISSED with prejudice, as Defendants are entitled to absolute immunity from this

relief.

B. Defendants’ motion regarding Plaintiff’s claim of deliberate

indifference to his serious medical needs against Defendants in their individual capacities

be GRANTED, as Defendants are entitled to qualified immunity on this claim.

C. Defendants’ motion regarding Plaintiff’s claim of excessive force

against Defendants Lovejoy and Isaac in their individual capacities be DENIED.

D. Defendants’ motion regarding Plaintiff’s claim of failure to protect

against Defendant Crittenden in his individual capacity be DENIED.

2. This case be set for a bench trial on Plaintiff’s excessive force and failure to

protect claims against Defendants.

Further, it is ORDERED that by April 28, 2022, the parties may file objections to

the Recommendation. The parties must specifically identify the factual findings and legal

conclusions in the Recommendation to which objection is made. Frivolous, conclusive, or

general objections will not be considered by the Court. The parties are advised that this

Recommendation is not a final order and, therefore, is not appealable.

Failure to file written objections to the Magistrate Judge’s findings and

recommendations in accordance with 28 U.S.C. § 636(b)(1) will bar a party from a de novo

determination by the District Court of legal and factual issues covered in the

Recommendation and waive the right of the party to challenge on appeal the District

Court’s order based on unobjected-to factual and legal conclusions accepted or adopted by

the District Court except on grounds of plain error or manifest injustice. Nettles v.

Wainwright, 677 F.2d 404 (5th Cir. 1982); 11TH CIR. R. 3-1. See Stein v. Reynolds Sec.,

Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of Prichard, 661 F.2d 1206

(11th Cir. 1981) (en banc).

DONE this 14th day of April, 2022.

/s/ Kelly Fitzgerald Pate

KELLY FITZGERALD PATE

UNITED STATES MAGISTRATE JUDGE