Smith v. Salter

IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

STEVEN SMITH, #184725, :

Plaintiff, :

vs. : CIVIL ACTION 16-0588-CG-N

G. SALTER, et al., :

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff Steven Smith, an Alabama prison inmate proceeding pro se and in forma

pauperis, 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). After careful review, it is recommended that Defendant Corizon, LLC’s Motion for

Summary Judgment be GRANTED. It is further recommended that the Motion for Summary

Judgment of Defendants, Salter, Bolar, Brown, and Dailey, be GRANTED, and that Plaintiff

Smith’s action be dismissed with prejudice.

I. Summary of Allegations.

Smith alleges in the complaint that on June 11, 2016, he was assaulted and stabbed by

another inmate in Holman Prison’s B dorm when no guard was present at his stationed post.

(Doc. 1 at 4). The guard, Officer Salter, is alleged to have been outside the dorm gate at the time

the attack occurred. (Id. at 4-5). Smith claims that the attacker (nicknamed “Toe Toe”)

assaulted him from behind with a knife (stabbing his left shoulder) and chased him with a broken

broomstick. (Id. at 4). Smith ran from the assailant, jumping the wall in the center of the dorm,

to get to the gated entrance to the dorm. (Id. at 5). As soon as Smith approached the entrance

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gate, the cubicle officer rolled the door open, and Smith ran out of the dorm. (Doc. 33 at 19). As

Smith exited the dorm, he alleges he saw Officer Salter and Lieutenant Bolar standing outside of

the bars looking into the dorm. (Id.). Smith was immediately taken to the prison’s infirmary,

where the examination revealed a stab wound to his left shoulder and abrasions to his arms and

legs. (Doc. 30-9 at 13). Smith was then transferred to Atmore Community Hospital’s

Emergency Room, where xrays of his shoulder confirmed there was no fracture, dislocation, or

joint damage and that the puncture wound did not require sutures. (Doc. 30-9 at 37, 39-40).

Smith claims the prescribed treatment for his injury was to daily clean and bandage the stab

wound for 25 days. (Id.). Smith alleges, however, that he only received wound treatment eleven

(11) days out of the prescribed twenty-five (25) days, resulting in the development of an

infection in the stab wound. (Id.).

One of the days Smith missed his wound treatment was July 4, 2016. Smith alleges on

this date he was lured out of his cell by Officer Dailey and into the shift officer where Lieutenant

Brown assaulted him. (Doc. 24 at 1). Smith asserts that while he was handcuffed with his

hands behind his back, Lieutenant Brown knocked him backwards, where he fell over a “locker

box.” (Doc. 1 at 10). Officer Daily helped Smith up, but following the alleged assault, Smith

was not taken to the infirmary for a body chart to check for injuries from his fall or for the

scheduled wound cleaning. (Id.; Doc. 33 at 21-22).

Smith brings this suit against Defendants for violations of the Eighth Amendment of the

constitution.1 Smith claims Gavin Salter and Regina Bolar are liable for failing to protect him

1 In his complaint, Smith alleged that Warden Rabon, Warden Mitchell, Warden Stewart,

Captain Fails, Captain Rouse, and Warden Davenport were liable for placing Smith in a

segregation cell following the attack and not disciplining the alleged assailant in any way. (Doc.

1 at 11-14, 16). The undersigned entered a report and recommendation, that was adopted by this

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from the inmate attack on June 11, 2016; Corizon, LLC is liable for its failure to provide

adequate medical care; Deveron Brown for using excessive force against him on July 4, 2016

and Ervin Dailey for his failure to intervene in the assault by Lieutenant Brown. (Docs. 1, 24).

For relief, Smith requests $600,000.00 in punitive damages and $10,000.00 in compensatory

damages from each defendant in their individual and official capacities. (Doc. 1 at 7).

Defendants have answered the suit and denied all allegations against them and asserted

immunity defenses.2 (Docs. 10, 30). In combination with their Answer, Defendants have

court on July 21, 2017, that the claims against these defendants should be dismissed pursuant to

28 U.S.C. § 1915(e)(2)(B)(i) and (ii). (See Docs. 21, 22).

Based on Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 416 (1995), the

court concluded an inmate’s placement in segregation only violates the Constitution if the

placement will affect the duration of his sentence or if the placement “imposes [an] atypical and

significant hardship . . . in relation to the ordinary incidents of prison life.” Id. at 484, 486, 115

S. Ct. at 2300. The court found that Plaintiff’s confinement to segregation for three months did

not give rise to a liberty interest protected by the due process clause. As a consequence, Smith

failed to state a claim upon which relief could be granted, and the claim was dismissed without

prejudice. Additionally, Smith’s claim that his assailant was not arrested or locked up and the

assailant did not receive a behavior citation or a disciplinary was determined to be without legal

merit and dismissed with prejudice as frivolous.

2 In his complaint, Plaintiff states that he is suing Defendants in their official and

individual capacities. As state officers, Defendants Salter, Bolar, Brown, and Dailey are

absolutely immune from suit for damages in their official capacities. See Harbert Int'l, Inc. v.

James, 157 F.3d 1271, 1277 (11th Cir. 1998) (state officials sued in their official capacities are

protected from suit for damages under the Eleventh Amendment). In addition, "[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)). However, having found herein that Plaintiff's allegations do not establish a

constitutional violation, "there is no necessity for further inquiries concerning qualified

immunity." Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001),

overruled in part by Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 818, 172 L. Ed. 2d 565.

The Court also notes that, as private actors, the medical Defendant Corizon, LLC is not

entitled to immunity, whether qualified or absolute. See Swann v. Southern Health Partners, Inc.,

388 F.3d 834, 837 (11th Cir. 2004) ("The parties agree that as a private entity, SHP [a private

corporation employed by the County to provide medical care to inmates at the county jail] is not

entitled to assert a qualified immunity defense."); Hinson v. Edmond, 205 F.3d 1264, 1265 (11th

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submitted Special Reports, which include evidentiary support in the form of affidavits, medical

records, and prison records. (Docs. 17, 30). The court has converted Defendants’ pleadings into

motions for summary judgment, and Smith has responded to the motions. (See Docs. 23, 31, 33).

These motions are now ripe for consideration. (Docs. 23, 31).

II. Summary Judgment Standard.

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)3; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 2510, 91 L.

Ed. 2d 202 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L.

Ed. 2d 265 (1986); Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (2009) ("[S]ummary judgment

is appropriate even if 'some alleged factual dispute' between the parties remains, so long as there

is 'no genuine issue of material fact.'"(emphasis omitted)).

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."

Cir. 2000) (a "privately employed prison physician is ineligible to advance the defense of

qualified immunity"); Edwards v. Alabama Dep't of Corrs., 81 F. Supp. 2d 1242, 1254 (M.D.

Ala. 2000) (a private entity contracting with a state to provide medical services to state inmates

"is not entitled to qualified immunity...."). Similarly, the Court is aware of no case extending

absolute immunity to private actors providing medical services to state inmates.

3 Rule 56 was revised in 2010 “to improve the procedures for presenting and deciding

summary-judgment motions and to make the procedures more consistent with those already used

in many courts. The standard for granting summary judgment[, however,] remains unchanged. . .

. The amendments [have] not affect[ed] continuing development of the decisional law construing

and applying these phrases.” Fed. R. Civ. P. 56 advisory committee’s note on 2010

amendments.

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Celotex, 477 U.S. at 323. 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, Rule 56(e) "requires the nonmoving

party to go beyond the pleadings and by [its] own affidavits, or by the

'depositions, answers to interrogatories, and admissions on file,' designate

'specific facts showing that there is a genuine issue for trial.'" Id. at 324. To avoid

summary judgment, the nonmoving party "must do more than show that there is

some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).

On the other hand, the evidence of the nonmovant must be believed and all

justifiable inferences must be drawn in its favor. See Anderson, 477 U.S. at 255.

ThyssenKrupp Steel USA, LLC v. United Forming, Inc., 926 F. Supp. 2d 1286, 1289-90 (S.D.

Ala. Jan. 29, 2013) (citations omitted).

The requirement to view the facts in the nonmoving party's favor extends only to

"genuine" disputes over material facts. A genuine dispute requires more than "some

metaphysical doubt as to material facts." Garczynski, 573 F.3d at 1165 (internal 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, 127 S. Ct. 1769, 1776, 167 L. Ed. 2d

686 (2007); see also Logan v. Smith, 439 F. App'x 798, 800 (11th Cir. Aug. 29, 2011) ("In cases

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where opposing parties tell different versions of the same events one of which is blatantly

contradicted by the record—such that no reasonable jury could believe it—a court should not

adopt the contradicted allegations." (citations omitted) (unpublished)).4

III. Discussion.

"In order for a plaintiff 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)). The parties do not

dispute that Defendants were acting under color of state law, and Smith seeks redress pursuant to

the Eighth Amendment.

"The Eighth Amendment, applicable to the states through the Fourteenth Amendment,

governs the conditions under which convicted prisoners are confined and the treatment they

receive while in prison." Id. (citing Farrow v. West, 320 F.3d 1235, 1242 (11th Cir. 2003); Bass

v. Perrin, 170 F.3d 1312, 1316 (11th Cir. 1999)). The Amendment states that "[e]xcessive bail

shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

U.S. Const. amend. VIII. "'[T]he unnecessary and wanton infliction of pain ... constitutes cruel

and unusual punishment forbidden by the Eighth Amendment.'" Whitley v. Albers, 475 U.S. 312,

319, 106 S. Ct. 1078, 89 L. Ed. 2d 251 (1986) (some internal quotation marks omitted). "Among

'unnecessary and wanton' inflictions of pain are those that are 'totally without penological

justification.'" Rhodes v. Chapman, 452 U.S. 337, 346, 101 S. Ct. 2392, 2399, 69 L. Ed. 2d 59

(1981).

4 “Unpublished opinions are not considered binding precedent, but may be cited as

persuasive authority.” 11th Cir. R. 36-2.

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For prisoners, "[t]he Eighth Amendment can give rise to claims challenging specific

conditions of confinement, the excessive use of force, and the deliberate indifference to a

prisoner's serious medical needs." Thomas v. Bryant, 614 F.3d 1288, 1303 (11th Cir. 2010)

(citations omitted). Additionally, "[b]eyond just restraining prison officials from inflicting 'cruel

and unusual punishments' upon inmates, '[t]he Amendment also imposes duties on these

officials, who must ... "take reasonable measures to guarantee the safety of the inmates."'"

Bowen v. Warden Baldwin State Prison, 826 F.3d 1312, 1319-20 (11th Cir. 2016) (quoting

Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) (quoting

Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984)).

A. Failure to Protect Claim.

A prison official's duty under the Eighth Amendment is to ensure "reasonable safety," "a

standard that incorporates due regard for prison officials' 'unenviable task of keeping dangerous

men in safe custody under humane conditions.'" Farmer, 511 U.S. at 844-45 (citations omitted).

However, "a prison custodian is not the guarantor of a prisoner's safety", Purcell ex rel. Morgan

v. Toombs Cnty., 400 F.3d 1313, 1321 (11th Cir. 2005) (citation omitted), and "[i]t is not[] every

injury suffered by one prisoner at the hands of another that translates into constitutional liability

for prison officials responsible for the victim's safety." Farmer, 511 U.S. at 834. Prison officials

must "take reasonable measures to guarantee the safety of the inmates", Hudson v. Palmer, 468

U.S. 517, 526-27, 104 S. Ct. 3194, 3200, 82 L. Ed. 2d 393 (1984), but there is no liability for "an

official's failure to alleviate a significant risk that he should have perceived but did not. . . ."

Farmer, 511 U.S. at 838. It is not enough that an inmate proves that the defendant should have

known of the risk, but did not, as actual knowledge is the key. See, e.g., Cottrell v. Caldwell, 85

F.3d 1480, 1491 (11th Cir. 1996).

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Smith claims that the lack of Defendant Salter’s security presence in his dorm on June 11,

2016, caused his attack;5 thus, Smith must show that Defendant Salter not only left his post but

that he did so with the knowledge that Smith was at risk of a serious injury. Taking Smith’s

allegations as true, there is simply no probative evidence sufficient to show deliberate

indifference of “an objectively substantial serious risk of harm” posed by inmate “Toe Toe” (or

any inmate) to Smith prior to the attack on June 11, 2016. Cf., McGill v. Duckworth, 944 F.2d

344, 349 (7th Cir. 1991), overruled in part on other grounds by Farmer, 511 U.S. at 828 (A

plaintiff "normally proves actual knowledge of impending harm by showing that he complained

to prison officials about a specific threat to his safety."). Specifically, Smith presents no

evidence that even he was aware or fearful of a possible attack at the time it occurred.6

Additionally, Smith has failed to show Defendant Salter "had subjective knowledge of a

generalized, substantial risk of serious harm from inmate violence." Hale v. Tallapoosa Cnty., 50

F.3d 1579, 1583 (11th Cir. 1995). In fact, the record is void of facts proving or indicating any

5 In response to this motion, Smith cites Krein v. Norris, 309 F.3d 487 (8th Cir. 2002) as

support for his argument that Defendants are liable for failing to protect him not from a surprise

or unforeseen attack but because “they knew of and created an environment which posed a high

probability of harm to all inmates who are housed in a barrack type area.” (Doc. 33 at 7).

The court in Krein found that the defendants failed to abide by staffing requirements,

which created an environment that posed a risk to all inmates in the barracks area. Specifically,

the evidence showed the prison had one guard for three barracks housing 150 inmates, and the

barrack that the plaintiff was housed in was shown to have five times the level of violence of the

other barracks. Krein, 309 F.3d at 490. The court further found that the prison was aware of

these facts for over a year without making any staffing changes.

Smith, on the other hand, alleges that Salter was assigned to be in the dorm, but left his

post unattended. Additionally, the allegations in Smith’s complaint focus on the actions or

inactions of Defendants to his attack and treatment thereafter. As such, it can only be said that

Defendant Salter’s failure to be at his guard post represents negligence at best and is a far cry

from alleging, much less establishing, a conditions of confinement claim where defendants

objectively understaffed the prison dorm and subjectively knew of an excessive risk of harm to

Smith’s health or safety and deliberately disregarded such risk.

6 Smith affirms by affidavit that he was talking to a friend in B dorm when he was stabbed

from behind. (Doc. 33 at 18).

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subjective knowledge or recklessness on the part of Defendants Salter and Bolar. And, it is

incumbent on Smith to make such an evidentiary showing that a defendant drew the inference

and "knowingly or recklessly 'disregard[ed the] risk [of harm] by failing to take reasonable

measures to abate it,'" Hale, 50 F.3d at 1583 (quoting Farmer, 511 U.S. at 848, 114 S. Ct. at

1984), as "[m]erely negligent failure to protect an inmate from attack does not justify liability

under § 1983. . . . The known risk of injury must be a strong likelihood, rather than a mere

possibility before a guard's failure to act can constitute deliberate indifference." Brown v.

Hughes, 894 F.2d 1533, 1537 (11th Cir.) (citations and internal quotations omitted), 496 U.S.

928, 110 S. Ct. 2624, 110 L. Ed. 2d 645 (1990). Accordingly, Smith’s failure to protect claim is

not actionable under § 1983, and it is recommended that summary judgment be granted in favor

of Defendant Salter on this claim.

B. Failure to Intervene Claim.

In his complaint, Smith also claims that Defendants Salter and Bolar are liable for failing

to protect him when they watched him being attacked and failed to act. Specifically, Smith

alleges:

Bolar stood outside B dorm with Officer Salter and just watched the inmate

assault me. They never called a code nor did they ever apprehend the inmate.

(Doc. 1 at 5). As previously stated, however, the record is void of facts to establish a failure to

protect claim. Pro se pleadings, however, are to be read liberally to determine “whether

jurisdiction to consider[them] can be founded on a legally justifiable base.” Fernandez v. United

States, 941 F.2d 1488, 1491 (11th Cir.1991); see also United States v. Jordan, 915 F.2d

622,624–25 (11th Cir.1990) (The Court has an “obligation to look behind the label of a motion

filed by a pro se inmate and determine whether the motion is, in effect, cognizable under a

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different remedial statutory framework.”). Based on a reading of Smith’s allegations, the

undersigned determines that he is attempting to assert a claim against Defendants for their

alleged failure to intervene in the attack; therefore, the undersigned will review the claim as

such.

The test put forth in this Circuit to establish if liability may attach to an officer who fails

to intervene in an inmate-on-inmate fight is whether: 1) the inmate’s physical assault created a

substantial, objective risk of injury, (2) of which a defendant is subjectively aware, (3) the

defendant was in a position to intervene, and (4) the defendant did not respond reasonably to the

risk of injury. Johnson v. Boyd, 568 F. App'x 719, 724-25 (11th Cir. 2014).

Defendants affirm that on June 11, 2016, Officer Salter observed “activity going on in the

back of Housing Unit B, where only night lights were on.” (Doc. 30-5 at 1). Officer Salter then

saw Smith jump the center wall of the dorm and run towards the entrance gate. (Id.). While

opening the grill gate for Smith to escape, Officer Salter called a code for assistance in Dorm B.

(Id.). Lieutenant Bolar, along with other officers, responded to the call. (Doc. 30-3 at 1). Smith

informed the officers that the attacker went by the nickname “Toe Toe”, but responding officers

were unable to locate any inmate with the nickname. (Id.).

In opposition to this motion, Smith declares that as soon as he was stabbed he began to

run. (Doc. 33 at 18). He asserts he was hit over the head a couple of times with the broomstick

and began to run faster. (Id.). Smith then claims he jumped the center wall and ran towards the

entrance gate “actually praying and hoping that the cubicle officer would not hesitate to open the

door. And sure enough there was my prayer being answered, the door rolled open,” (Id. at 19),

as Defendant Salter rolled the gate open. Smith further avers that “as [he] ran out of the

cellblock [he] could see Lt. Bolar and Officer Salter both standing outside the bars looking in.”

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(Id.).

Taking as true the version of events put forth by Smith, Smith has failed to establish his

claim, and Defendants have demonstrated that they were not in a position to stop Smith’s attack.

See Terry v. Bailey, 376 F. App'x 894, 896 (11th Cir. 2010) (citing Ensley v. Soper, 142 F.3d

1402, 1407 (11th Cir. 1998) (Liability for an officer’s failure to intervene only attaches if a

defendant was actually in a position to intervene.). In fact, Smith fails to present any evidence

that Defendants “stood and watched” the incident without taking action. He does not indicate or

allege that either defendant was seen standing at the bars “watching” when he was stabbed or

being chased. Smith’s only allegation is that he saw Defendants standing at the bars when he

exited the dorm, and the record fully corroborates this detail.

The undisputed facts confirm that Defendant Salter was outside the dorm when the attack

occurred; furthermore, Defendant Bolar was not even present at the scene of the attack until it

was ending. See Ledlow v. Givens, 500 F. App’x 910, 914 (11th Cir. 2012) (holding that district

court properly granted summary judgment to defendant correctional officer where plaintiff

"presented no evidence that [officer] had the ability to reasonably insert himself between [the

inmates] to stop the assault without additional help" nor had he presented "evidence ... as to how

long this assault went on before intervention occurred."). Additionally, Defendant Salter affirms

and Smith does not dispute that the moment he observed Smith jump the center wall and run

towards the dorm gate, he took appropriate and reasonable actions - immediately calling for

assistance, opening the gate for Smith, and promptly obtaining medical assistance for him.

Such actions negate claims of deliberate indifference or knowingly disregarding a risk of harm to

Smith. Consequently, the evidence reveals Defendants were not in close proximity to the attack

or in a position to intervene but demonstrates they responded appropriately to the attack. Glispy

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v. Raymond, No. 06-14269, 2009 U.S. Dist. LEXIS 77087, 2009 WL 2762636, at *3 (S.D. Fla.

Aug. 28, 2009) (discussing Ensley, 142 F.3d at 1407-08) (An officer who fails to intervene in a

fight between inmates can only be held liable if he or she "was physically able and had a realistic

chance to intervene and act in time to protect the inmate plaintiff."); Ledlow v. Givens, 500 Fed.

App'x 910, 914 (11th Cir. 2012) (citing Hadley v. Gutierrez, 526 F.3d 1324, 1330-31 (11th Cir.

2008)) (The plaintiff has the burden of demonstrating that the defendant was in a position to

intervene but failed to do so.).

Smith also asserts in his pleadings that Defendants failed to properly investigate the

attack after it occurred. The record, however, refutes this claim: 1) The record before the court

contains a photograph of the broken broomstick (Doc. 30-8 at 8), evidencing that Defendants

located at least one of the weapons following the incident, and 2) Defendants’ affidavits, and the

prison’s Incident Reports, confirm that Defendants attempted to discover the attacker, but with

only a nickname to go by, the attacker was not located.7 (Docs. 30-3; 30-5; 30-6).

Accordingly, the undersigned concludes that a reasonable jury would not be able to find

for Smith as the record is devoid of evidence to support the failure to intervene claim. Cf. Stubbs

v. Dudley, 849 F.2d 83, 85-86 (2d Cir. 1988) (discussing deliberate-indifference standard in

7 Smith supports denial of this motion with the statement of Inmate Carsbia Taylor, which

is self-styled as an affidavit. (Doc. 33 at 23). This “affidavit”, however, is an unsworn

declaration that does not meet the requirements of 28 U.S.C. § 1746 and, therefore, is not proper

evidence to oppose a motion for summary judgment.

The “affidavit”, however, does not bolster Smith’s claims. Inmate Taylor confirms in his

statement that following the incident none of the inmates in B dorm knew who the attacker was.

(Doc. 33 at 23). Inmate Taylor further argues that the officers failed to go in to the dorm to

investigate the incident; as mentioned above, the record shows that the officers recovered the

broken broomstick. Inmate Taylor also asserts that Smith gave him a sworn statement to pass

along to Captain Fails which “gave [the attacker’s] real name. Not any nickname.” (Doc. 33 at

24). This is belied by Smith’s own facts, as Smith affirms he did not and does not know the

assailant’s name. (Doc. 33 at 19).

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context of 42 U.S.C. § 1983 claim based on failure to protect inmate from injuries caused by

fellow inmates); see also Mackay v. Farnsworth, 48 F.3d 491, 492-93 (10th Cir. 1995) (finding

no deliberate indifference by prison officials who failed to physically intervene in fight between

plaintiff inmate and another inmate). Therefore, the undersigned recommends that summary

judgment be granted in favor of Defendants Salter and Bolar, and the claims against them

dismissed.

B. Inadequate Medical Care.

Smith alleges that subsequent to the attack on June 11, 2016, he did not receive adequate

medical treatment. He asserts this claim against Defendant Corizon, LLC (“Corizon”) for its

alleged failure to provide daily wound cleaning “as medically required” (specifically, only

calling him to the health care unit for wound rebandaging 11 out of 25 days). (Doc. 1 at 6). To

prevail on a claim for inadequate medical care, an inmate must show that the defendant acted

with deliberate indifference to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 97 S.

Ct. 285, 50 L. Ed. 2d 251 (1976). Smith categorically fails to state a claim against the named

Defendant Corizon and further fails to establish that his denied wound care treatments rose to a

constitutional level.

In order for Smith to meet his burden on the objective component of the Eighth

Amendment claims, he must demonstrate that an "objectively serious medical need" exists.

Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003). A serious medical need is "considered

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. (citing Hill v.

DeKalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994) overruled on other grounds in

Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1031 n. 8 (11th Cir. 2001)(quotation marks

13

omitted)). "In either of these situations, the medical need must be one that, if left unattended,

pos[es] a substantial risk of serious harm." Id. (citations and quotation marks omitted).

In order to meet the subjective requirement of an Eighth Amendment denial of medical

care claim, Smith must demonstrate "deliberate indifference" to a serious medical need. Farrow,

320 F.3d at 1243. "Deliberate indifference entails more than mere negligence. Estelle, 429 U.S.

at 106; Farmer v. Brennan, 511 U.S. 825, 835, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). The

Supreme Court held that a prison official cannot be found deliberately indifferent under the

Eighth Amendment "unless the official knows of and disregards an excessive risk to inmate

health or safety; the official must both be aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists, and he must also draw the inference."

Farmer, 511 U.S., 825, 837-38, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (emphasis added). However,

"an official's failure to alleviate a significant risk that he should have perceived but did not, while

no cause for commendation, cannot under our cases be condemned as the infliction of

punishment." Id. at 838. Therefore, "under Estelle and Farmer, deliberate indifference has three

components: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by

conduct that is more than mere negligence." Farrow, 320 F.3d 1235, 1246 (citing McElligott,

182 F.3d 1248, 1255)(stating that defendant must have subjective awareness of an "objectively

serious need" and that his response must constitute "an objectively insufficient response to that

need")).

In the present action, it is undisputed that Smith suffered a puncture wound to his left

shoulder, which was immediately examined by Dr. Pauparinas at Holman’s infirmary and by the

Emergency Room physician at Atmore Community Hospital. (Doc. 17-1 at 7-9, 11). The

medical records confirm that Smith was prescribed medication for pain but no further medical

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treatment was needed; the wound was cleaned, and Dr. Pouparinas ordered the wound to be

“cover[ed] daily until healed.” (Id. at 10, 12-13, 15-19). On June 20, 2016, during the healing

process, Smith’s wound was noted as becoming infected, and Dr. Poupainas ordered antibiotic

treatment, Clindamycin, for Smith. (Id. at 13). Smith received the prescribed medication, and

by July 5, 2016, Smith was completely infection free. (Id. at 13, 21).

Taking Smith’s allegations as true, Smith has failed to carry his burden of establishing a

constitutional claim for inadequate medical care. On the first element, it is arguable whether

Smith presents an objectively serious medical need. No doubt, a wound infection is considered

objectively serious, but Smith’s claim of inadequate medical care arises from the allegation that

he was denied wound cleaning (which in turn caused him to develop an infection).

Consequently, the appropriate question is whether a wound that required no antibiotics, no

sutures, and no prescribed treatment at the time it was inflicted is to be considered objectively

serious? Without deciding this issue, the undersigned concludes that Smith clearly fails to

establish the subjective element of his claim, and, thus, his claim fails.

That medical malpractice - negligence by a physician - is insufficient to form the

basis of a claim for deliberate indifference is well settled. See Estelle v.Gamble,

429 U.S. 97, 105-07, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976); Adams v. Poag,

61 F.3d 1537, 1543 (11th Cir. 1995). Instead, something more must be shown.

Evidence must support a conclusion that a prison physician's harmful acts were

intentional or reckless. See Farmer v. Brennan, 511 U.S. 825, 833-38, 114 S.Ct.

1970, 1977-79, 128 L.Ed.2d 811 (1994); Cottrell v. Caldwell, 85 F.3d 1480, 1491

(11th Cir. 1996) (stating that deliberate indifference is equivalent of recklessly

disregarding substantial risk of serious harm to inmate); Adams, 61 F.3d at 1543

(stating that plaintiff must show more than mere negligence to assert an Eighth

Amendment violation); Hill v. Dekalb Regional Youth Detention Ctr., 40 F.3d

1176, 1191 n. 28 (11th Cir. 1994) (recognizing that Supreme Court has defined

"deliberate indifference" as requiring more than mere negligence and has adopted

a "subjective recklessness" standard from criminal law); Xing Qian v. Kautz, 168

F.3d 949, 955 (7th Cir. 1999) (stating "deliberate indifference" is synonym for

intentional or reckless conduct, and that "reckless" conduct describes conduct so

dangerous that deliberate nature can be inferred).

15

Foster v. Meeks, CIV. ACT. NO. 2:15cv786-MHT-TFM, 2017 U.S. Dist. LEXIS 16355, *156

(M.D. Ala. Feb. 3, 2017) (quoting Hinson v. Edmond, 192 F.3d 1342, 1345 (11th Cir. 1999)).

The record before the court is completely void of any evidence that Smith was treated

with deliberate indifference regarding his wound care. Smith fails to show, or even allege, that

any defendant had subjective knowledge of a risk of harm that was disregarded or ignored, by

conduct that was any more than negligence. Indeed, the record confirms that Smith received

prompt and substantial care for his injuries, at the time of the incident and upon indication of an

infection. See Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989) (“[C]ourts hesitate to

find an Eighth Amendment violation” when an inmate “has received medical care.”). As such,

the record fails to support a claim for deliberate indifference to Smith’s medical needs on the part

of any medical personnel and, undoubtedly, Corizon.

More importantly, even if Smith’s complaint had stated a valid Eighth Amendment claim

for inadequate medical care against an individual defendant, he cannot maintain an action against

Corizon, as the corporate medical provider on any basis of alleged wrongdoing. "For § 1983

liability to attach to a private corporation providing prison medical care to prisoners, it must be

shown that a prisoner's constitutional rights were violated as a result of an established policy or

custom of that corporation." Green v. Preemptive Forensic Health Solutions, 2015 U.S. Dist.

LEXIS 52715, 2015 WL 1826191, at *3 (N.D. Ala. April 21, 2015 (citing Buckner v. Toro, 116

F.3d 450 (11th Cir. 1997). “To establish a policy or custom, it is generally necessary to show a

persistent and wide-spread practice.” See Wayne v. Jarvis, 1967 F.3d 1098, 1105 (11th Cir.

1999). This requires showing “a practice that is so settled and permanent that it takes on force of

law.” Id. In this instance, Plaintiff has failed to allege, much less offer evidence to show, that a

16

policy or custom of Corizon contributed to any way to the constitutional violations alleged in his

complaint. In fact, Smith’s pleadings are void of any mention of a custom or policy of Corizon

in delaying or denying wound care and treatment of inmates.

Because Smith has not shown or alleged a causal relationship between the activities,

policies, or customs of Corizon and his alleged constitutional deprivation, the claims against

Corizon are due to be dismissed, and it is recommended that Defendant Corizon’s Motion for

Summary Judgment be granted.

D. Use of Excessive Force.

Smith asserts in his complaint that Defendant Brown violated his Eighth Amendment

rights when she pushed Smith while Smith was handcuffed with his hands behind his back.

Smith claims that the push caused him to trip over a locker box and fall to the floor. Defendant

Brown denies pushing or using any force against Smith. (Doc. 30-2).

According to Defendant Brown, on July 4, 2016, she instructed Officer Dailey to escort

Smith to the health care unit for wound treatment. (Id. at 1). Officer Dailey radioed Defendant

Brown from Smith’s cell informing Defendant Brown that Smith refused to be handcuffed to the

rear. (Id.). Given that Smith lacked a profile to be handcuffed to the front, Defendant Brown

advised that if Smith wanted to exit his cell he would have to submit to rear handcuffs. (Id.).

Smith complied and was escorted towards the healthcare unit. (Id.). However, as Officer Dailey

and Smith passed by Defendant Brown’s office, Defendant Brown avers she overheard Smith

being argumentative and ordered Smith into the shift office. (Id. at 2). Defendant Brown

questioned Smith about why he could not be handcuffed to the rear and claims

Smith became belligerent while stating, “Bitch I got stabbed.” [Defendant

Brown] ordered inmate Smith the stop his behavior. Inmate Smith repeatedly

called me a Bitch. [Defendant Brown] then stated, “I’m not going to be too many

17

more bitches.” Inmate Smith stated, “Fuck You.” [Defendant Brown] instructed

Officer Daily to escort inmate Smith back to his assigned cell due to his behavior.

Officer Daily then grasp inmate Smith by his arm and inmate Smith refused to

move while asking, “Why can’t I get my treatment?” [Defendant Brown]

informed inmate smith that he was not going to the Health Care Unit with his

aggressive behavior. I grasp inmate Smith by his other arm and ordered inmate

Smith to exit the shift office. At this time inmate Smith pulled away and fell

backwards on a locker box. Officer Daily helped inmate Smith to his feet and

escorted Inmate Smith back to his assigned cell. I advised inmate Smith that once

he stopped his aggressive behavior he would be escorted to the Health Care Unit

for treatment.

(Doc. 30-2 at 2).

In response to Defendant Brown’s declaration, Smith affirms he did believe he should be

allowed front cuffing because his stab wound made it painful to put his arms to the back. (Doc.

33 at 20). However, he claims he was compliant with the rear handcuffing, “regardless of the

pain.” (Id.). Smith asserts as he was escorted passed the shift office, Defendant Brown called

him in and asked him why he wanted to be handcuffed to the front? (Id. at 21). Smith answered,

“because I got a stab wound in my back.” (Id.). According to Smith, Defendant Brown

attempted to explain “how rules are still rules”, and the two “argued about it back and forth until

she sa[id] ‘f--- U fag.’ And then [Smith] said “f--- U b----.’” (Id.). Smith claims Defendant

Brown then pushed him over the locker box, and he “banged” into the wall and the office

window, causing pain to his head, back, and wrists. (Id.). Officer Daily assisted Smith up, and

followed Defendant Brown’s instructions to take Smith back to his cell instead of the health care

unit for treatment. (Id.).

Smith states in his response to Defendants’ special report:

Again, no body chart. No incident report. And no medical treatment for Smith.

So if [Smith] wanted to tell his story to anyone he’d better be thinking of a way to

do it from his one man cell. That is the way Brown left him. So [Smith]

contacted PREA. And an investigation was started. Now Smith is seeking

redress and damages from … this . . . Court.

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(Id. at 15).

The PREA report referenced by Smith shows that on July 5, 2016, Smith brought sexual

harassment charges against Defendant Brown, claiming Defendant Brown called him “gay”

every time she saw him. (Doc. 30-12 at 1-2). Two days later, on July 7, 2016, however, Smith

voluntarily waived prosecution of the charges against Defendant Brown. (Doc. 30-13 at 1; Doc.

30-11 at 1).

To establish a constitutional violation for excessive use of force, Plaintiff Smith must first

show that the alleged wrongdoing was objectively "harmful enough" to establish a constitutional

violation, meaning defendants' conduct "shocks the conscience," Lumley v. City of Dade City,

Fla., 327 F.3d 1186, 1196 (11th Cir. 2003), and, second, Smith must show that "the officials

act[ed] with a sufficiently culpable state of mind," i.e., that they acted "maliciously and

sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 6-8, 112 S. Ct. 995, 117 L. Ed. 2d

156 (1992). "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.'" Skrtich v. Thornton, 280 F.3d 1295, 1300 (11th Cir. 2002)

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

The factors used to determine whether there has been a violation of the Eighth Amendment in the

prison security context are: the need for the application of force, the relationship between that

need and the amount of force used, the threat reasonably perceived, any efforts to temper the

severity of a forceful response, and the extent of injury suffered. Hudson, 503 U.S. at 7 (citing

Whitley v. Albers, 475 U.S. 312, 321, 106 S. Ct. 1078, 89 L. Ed. 2d 251 (1985)).

Viewing the evidence in the light most favorable to Smith, as it must, Hairston v.

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Gainsville Sun Pub. Co., 9 F.3d 913, 918 (11th Cir. 1993), the undersigned concludes that the

amount of force used by Defendant Brown was insufficient as a matter of law to support an

excessive force claim even under Smith’s version of the events. The undisputed evidence shows

that Smith did not suffer an injury due to the fall. Although he claims he did suffer head, back,

and wrist pain from his fall, he never communicated a need for medical attention – not to

Defendant Brown or Dailey, not through a sick call request, and not by complaining to an officer

following the incident. In fact, Smith met with the PREA investigating officer the following day

and never mentioned any injury, need for medical attention, or use of force. Consequently,

Smith’s conclusory allegation that he suffered pain from hitting the wall and window is not

objectively, sufficiently serious for Eighth Amendment purposes.

In Hudson v. McMillian, the Supreme Court rejected the theory that an inmate who

alleges excessive use of force is required to show serious injury in addition to unnecessary and

wanton infliction of pain. 503 U.S. 1, 10, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992).

In the excessive force context, society's expectations are different. When prison

officials maliciously and sadistically use force to cause harm, contemporary

standards of decency always are violated. This is true whether or not significant

injury is evident. . . . That is not to say that every malevolent touch by a prison

guard gives rise to a federal cause of action. The Eighth Amendment's prohibition

of "cruel and unusual" punishments necessarily excludes from

constitutional recognition de minimis uses of physical force, provided that the use

of force is not of a sort "repugnant to the conscience of mankind."

Id. at 8-10 (internal quotations and citations omitted). Thus, the relevant inquiry under the

objective prong of Hudson is whether the alleged wrongdoing, in this case a push resulting in a

fall over a locker box, was objectively harmful enough to establish a constitutional violation?

See id. at 8 (In Hudson the Court found injuries of bruises, swelling, loosened teeth, and a

cracked dental plate were not de minimis.). Additionally, while words alone are not

20

determinative of bad faith on the part of officers in their use of force, they may be relevant "as

part of the totality of the totality of the circumstances" in determining an officer's state of mind.

Bozeman v. Orum, 422 F.3d 1265, 1271 n.11 (11th Cir. 2005).

The claims in this action closely mirror a number of other cases from the Eleventh Circuit

in which the use of force was found to fall short of a constitutional violation. See Enriquez v.

Landers, et al., No. 2:02-cv-510-FtM-VMC-SPC, 2005 U.S. Dist. LEXIS 21718, 2005 WL

2405829 (M.D. Fla. Sept. 29, 2005) (inmate claiming unprovoked attacks leaving him with

bruising and abrasions was de minimis injury suggesting de minimis force not sufficient to prove

an Eighth Amendment violation); Springs v. Lagravinese, No. 2:07-cv-522-FtM-29DNF, 2008

U.S. Dist. LEXIS 39486, 2008 WL 2074415 (M.D. Fla. May 15, 2008) (inmate who was

grabbed by the arm, had it twisted behind him and was shoved into his cell did not support a

finding malicious and sadistic purpose); Hall v. Leavins, No. 3:06cv351/RV/EMT, 2009 U.S.

Dist. LEXIS 82582, 2009 WL 2905912 (N.D. Fla. Aug. 18, 2009) (inmate who was choked,

shoved and slammed to the floor does not evidence more than de minimis force); Robinson v.

Davis, No. 3:06cv403/RV/EMT, 2008 U.S. Dist. LEXIS 111862, 2009 WL 153162 (N.D. Fla.

Dec. 23, 2009) (shoving shackled inmate to the ground, resulting in injury and abrasions to

inmate's knee, ankle and toe was de minimis use of force and insufficient under the Eighth

Amendment standard); Jones v. City of Dothan, 121 F.3d 1456, 1460-61 (11th Cir. 1997)

(officers slammed man against a wall, kicked his legs apart, forced him to raise his hands above

his head; man suffered pain from raising hands due to prior stroke, and from kicking due to

arthritic knees, and received medical treatment for knees thereafter; although force was

unnecessary, force used and injury inflicted were minor, and excessive force standard would not

inevitably lead officer to conclude that force was unlawful, thus officer entitled to qualified

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immunity); Post v. City of Ft. Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993) (pushing

handcuffed individual against a wall, although unnecessary, was not plainly unlawful, and officer

entitled to qualified immunity because "it was not clearly established that the amount of force he

used . . . was unlawful."); McCall v. Crosthwait, 336 F. App’x 871, 2009 U.S. App. LEXIS

14430, 2009 WL 1904146, at *1-2 (11th Cir. July 2, 2009) (officer's use of force and extent of

pretrial detainee's injuries were de minimis and, therefore, failed to establish a constitutional

violation, where officer pushed pre-trial detainee out of jail's elevator, causing him to hit

partially open steel cell door and fall against plexiglass window, and detainee suffered bruised

shoulder and elbow, for which he received prescription for ibuprofen).8

A court must look at the amount of force used “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.” Kingsley v. Henderson, _U.S. _ , 135 S. Ct. 2466, 2472, 192 L. Ed. 2d 416 (2016).

A court "must . . . give a 'wide range of deference to prison officials acting to preserve discipline

and security,' including when considering '[d]ecisions made at the scene of a disturbance.'"

Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007) (per curiam) (citations omitted). The

Eleventh Circuit has repeatedly held that a push or shove that causes pain and necessitates no, or

merely minor, medical treatment is not a constitutional violation, even where the prisoner was

restrained and no further force was necessary. See, e.g., Jones v. City of Dothan, 121 F.3d 1456,

1460-61 (11th Cir. 1997); Post v. City of Fort Lauderdale, 7 F.3d 1552, 1556 (11th Cir. 1993),

modified, 14 F.3d 583 (11th Cir. 1994). Furthermore, conclusory allegations of pain, in the

absence of further evidence of injury, justifies the conclusion that the use of force on the prisoner

8 Unpublished cases are not considered binding precedent but may be used as persuasive

authority. See 11th Cir. R. 36-2.

22

was minimal. Brown v. Smith, 813 F.2d 1187 (11th Cir. 1987); Bennett v. Parker, 898 F.2d

1530, 1533 (11th Cir. 1990).

Drawing all inferences in favor of Plaintiff Smith, the undersigned concludes that

Defendant Brown acted reasonably under the circumstances. After evaluating the factors set

forth in Whitley, the undersigned finds the force used by Defendant Brown was reasonable

considering Smith’s defiance and belligerence to being handcuffed to the rear, his persistent use

of profanity towards her, and that he only suffered a de minimis injury. See also, Kingsley 135 S.

Ct. at 2473 (citing Graham, 490 U.S. at 396); Bennett v. Parker, 898 F.2d 1530, 1533 (11th Cir.

1990) (When a prisoner creates a disturbance by failing to follow a prison guard's instructions, it

is not unreasonable for the guard to shove him against the wall.). While Defendant Brown’s

actions can not be condoned by this court, it is well established that "[n]ot every push or shove,

even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's

constitutional rights." Graham v. Connor, 490 U.S. 386, 398, 109 S. Ct. 1865, 104 L. Ed. 2d 443

(1989) (quoting Johnson v. Glick, 481 F.2d at 1033). The allegations put forth by Smith do not

“shock the conscience” and do not rise to a constitutional level. Accordingly, the Court finds

Defendant Brown is entitled to summary judgment on Smith’s claims of excessive force.

As to Defendant Dailey, Smith claims he is liable for failing to intervene on his behalf

and stop the excessive force used against him.

When an officer observes excessive force being used against an inmate or suspect and,

having both the time and ability to intervene, fails to do so, the officer may be liable for failure to

intervene. Sanchez v. Hialeah Police Department, 357 F. App'x 229, 234 (11th Cir. 2009)

(defendant officer was on the same side of the car as the other officer who began beating

plaintiff; Eleventh Circuit found under these facts he could be held liable for failure to intervene

23

under § 1983); see Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986) ("If a police officer,

whether supervisory or not, fails or refuses to intervene when a constitutional violation such as

an unprovoked beating takes place in his presence, the officer is directly liable under Section

1983.").

In the case at hand, however, Smith claims a single push by Defendant Brown caused

him to fall over a locker box. The evidence presented showed that Defendant Dailey

immediately helped Smith up and that no other force was used. Given the totality of the

situation, the undersigned determines Defendant Dailey was not in a position to intervene during

the complained of incident. Admittedly, Defendant Dailey was in close proximity to intervene,

however, the facts show there was no opportunity. An unforeseen push does not permit a

moment to intervene. Instead, the record shows Officer Dailey responded reasonably to the

incident and helped Smith after his fall.

In the alternative, inasmuch as the court has concluded that no reasonable jury could find

that Defendant Brown used excessive force against Smith, no reasonable jury could find that

Defendant Officer Dailey was liable for failing to intervene. Crenshaw v. Lister, 556 F.3d 1283,

1294 (11th Cir. 2009); McBride v. Rivers, 170 F. App'x 648, 658 (11th Cir. 2006)(defendant

could not be liable for failing to intervene after court determined no excessive force had been

used).

Thus it is recommended that Defendant Dailey be granted summary judgment, and the

claims against him dismissed.

IV. Conclusion.

Based upon the foregoing reasons, it is recommended that Defendants’ Motions for

Summary Judgment be granted, and Plaintiff Smith’s action be dismissed with prejudice.

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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. Gen.LR 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. In order 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 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 8th of February day of 2018.

/s/ Katherine P. Nelson

__________________________________

UNITED STATES MAGISTRATE JUDGE

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