Conrad v. Dunn
| Decision Date | 06 February 2020 |
| Docket Number | CIVIL ACTION 17-00107-TFM-N |
| Parties | ROBERT THOMAS CONRAD Plaintiff, v. JEFFERSON DUNN, et al., Defendants. |
| Court | U.S. District Court — Southern District of Alabama |
Plaintiff Robert Thomas Conrad, 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 summary judgment should be GRANTED in favor of all Defendants and that Plaintiff Conrad's action against Defendants be DISMISSED with prejudice.
Furthermore, Plaintiff is hereby placed on Notice by the filing of this Report and Recommendation of the Court's intention to recommend the granting of summary judgment for Defendant Terry Edwards who has not answered this complaint to date.
Plaintiff Conrad alleges that members of the Alabama Department of Corrections Emergency Response Team ("CERT Team") used excessive force against him on November 9, 2016, when the CERT team entered B-Dorm at approximately 6:30 a.m. and immediately began assaulting and harassing inmates.2 (Doc. 1 at 5). In his complaint, Conrad alleges that he was hit in the head, while lying face down on his stomach with his hands behind his back - in compliance with the CERT Team's orders. (Doc. 1 at 6). Specifically, he claims:
I was hit in the back of the head and told to turn over, when I did so, another C.E.R.T. member made the statement, "He isn't one of them", and I was told to turn back over."
(Doc. 1 at 6). Conrad alleges he heard other inmates in the dorm "screaming and hollering for help" after he was hit. (Id.). He claims he was "traumatized, stressed, and depressed" due to the "unnecessary use of force" that left him in fear. (Id.). He further claims as the CERT team exited B-Dorm, they allegedly made the "threatening statement, 'When we come back we are going to beat some more of yall ass too." (Id.).
Plaintiff Conrad alleges that the force used on November 9, 2016 was precipitated by an incident that occurred on November 7, 2016. According to Conrad, on November 7, 2016, members of the CERT Team, as well as other correctional officers, entered B-Dorm to conduct an institutional count of the inmates. (Doc. 1 at 5). On that date, inmates had placed "makeshift tents" on their beds to "gain some space from the inmate he shares the 5'x 6' living area with", and officers ordered inmates to remove the tents. (Id.). Conrad claims while the inmates removed the tents, one of the CERT Team members "aggressively" broke a stick from inmate Quandarian Faulkner's bed which "resulted in a reaction from the C.E.R.T. Members, Correctional Officers present and the Inmates, after a brief stillness, the count was conducted and the C.E.R.T. TEAM Members and Count Team exited the dorm." (Id.). Conrad explains:
Approximately two days later on November 9, 2016, at approximately 6:30 a.m. over 50 members of the Alabama Department of Corrections C.E.R.T. Team, entered Bravo Unit armed with their Riot Gear (helmets with face shields, neck collar, body vest, shields, while at least One-Hundred (100) of the One-Hundred and Fourteen (114), inmates assigned to Bravo Unit was sound asleep, and immediately assaulted the inmates like they were animals, without provocation, because the majority of the inmates were harmlessly asleep, after about 35 to 45 minutes of assaulting the inmates, the C.E.R.T. Team members, placed plastic restraining tyes[sic] on the inmates to lay face down on their beds while other C.E.R.T. Team members was parading up and down Bravo Unit still assaulting and harassing the inmates. . . .
(Doc. 1 at 5) (alterations in capitalization).
Plaintiff Conrad is suing Defendants3 for multiple constitutional violations, including excessive force, assault and battery, failure to protect or intervene, and denial of medicalcare. Conrad seeks "$200,000 against each liable Defendants; Compensatory, Punitive, Declaratory and Injunctive Relief; Trial by Jury; State Law Claims of Assault & Battery; Slander; Harassment and such other relief as the Law and this Court Deem just." (Doc. 1 at 17).
The defendants have answered the suit denying in full the allegations against them and filed special reports in support of their positions.4 (Docs. 1, 17, 19, 23, 38, 39, 63, 64, 89, 90, 103, 104, 119-122). As part of their special report, Defendants have submitted pertinent prison documents which include the November 9, 2016 Incident Report, Use of Force Report, Duty Officer Report, I&I Investigative Report, disciplinary records, medical records, and defendant officers' affidavits. (Doc. 39).
The submitted Incident Report provides details of the Nov. 9 search, as well as facts leading to the incident, stating:
On November 7, 2016, the Southern CERT members entered B-Dormitory and ordered all inmates to remove sticks and tied up blankets from their beds. The inmates refused to comply and became very hostile and aggressive toward the CERT members. The inmates gathered in a threatening and intimidating manner around the CERT members stating, "This is 2016, and we run this, slavery is over with, we already done killed one of y'all." Several unidentified inmates were observed with handmade knives in their possession. The CERT members were able to exit the dormitory without incident. The inmates with handmade knives were lateridentified by the CERT members through IMAS. On November 9, 2016, at approximately 6:35 a.m., the North Central, South Central, and Southern Team CERT Teams entered B-Dormitory to arrest the suspects. . . . All inmates were given orders to report to their assigned beds, lie down, and place their hands behind their back. The following inmates failed to comply with the orders given: . . . . The CERT Team used force to include impact weapons and physical force on the [noncompliant] inmates to get them to comply with the orders given . . . . The [noncompliant] inmates were arrested and escorted to the health care unit for medical assessments. . . .
(Doc. 39-1 at 3). The CERT Team's Nov. 9 search resulted in the confiscation of thirty (30) handmade knives and eleven (11) inmates were charged with failure to obey a direct order of an ADOC employee and allowed to remain in population pending the disciplinary action, while twenty-one (21) inmates, were transferred to segregation pending disciplinary actions for failing to obey a direct order, gathering in a threatening or intimidating manner, and unauthorized possession of a weapon or device that could be used as a weapon (as these inmates were identified as participants in the Nov. 7 incident). (Id. at 4).
Defendants admit that Conrad was not a suspect in the November 7, 2016 incident and contend that no force was used against Conrad on November 9, 2016.5 (Doc. 39 at 8). Defendants claim:
While at least 32 inmate names are listed in either ADOC Incident Report, the Use of Force Investigat[ion] Report or theDuty Officer Report, none of them list inmate Conrad as a participant of the incident. There is further no indication from any of the named Defendants that any of them directly spoke to and/or touched inmate Conrad, much less punched him in the back of the head as inmate Conrad self-servingly alleges. . . . Conrad was not taken to Holman's HCU, nor examined [on Nov. 9], because he was not part of the incident and no force was used against him. The Defendants specifically state that Conrad was never implicated in the incidents, nor was force used against him at any point during the episodes.
On November 10, 2016, the day after the incident, at approximately 1:30 p.m., Conrad filed a sick call request for medical treatment, stating:
I was hit across the back of the head by one of the Cert team members and need to see if anything [] is wrong. I have been getting dizzy on and off and having headaches on and off. I put Ice on it but I want to get check.
(Doc. 17-1 at 6). The request was received by Nurse Gray (a nonparty to this action), who notified Officer Johnson to bring Conrad to the health care unit for further evaluation. (Id. at 6-7). Conrad was examined by Nurse Wall at 5:10 a.m. on November 11, 2016 for complaints of headaches and dizziness. (Id. at 8). Conrad showed no signs of confusion, visual changes, loss of consciousness, temple tenderness, weak hand grip, abnormal gait, or edema. (Id. at 8-9). The assessment revealed Conrad suffered a bruise to the back of his head which was "tender to touch", and Conrad was prescribed Ibuprofen (400 mg, twice a day for a week) for the discomfort. (Id. at 9). All subsequent visits to the health care unit were completely unrelated to head pain or trauma and relate to a previously broken ankle. (See 17-1 - 17-10). As such, Defendants deny the allegations of denial of medical care asserted against them in this action.
After review of the pleadings, the Court ordered that Defendants' Answers, Special Reports, and exhibits (Docs. 1, 17, 19, 23, 38, 39, 63, 64, 89, 90, 103, 104, 119, 120, 121, 122) be treated as a motion for summary judgment. (Doc. 106, 123). After being advised that the granting of the motion would represent a final adjudication of the action, Plaintiff Conrad was provided an explanation of Rule 56 of the Federal Rules of Civil Procedure and was instructed to inform the Court in writing of his desire to continue the litigation ofthe action. (Doc. 106). To date, Plaintiff Stanton has not responded to the motion for summary judgment, despite being granted an extension of time to respond. (Doc. 117).
Accordingly, this motion for summary judgment is now ripe for consideration.
Summary judgment is proper "if the movant shows that there is no genuine...
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