Grimage v. Hilliard

• Decision Date: 05 December 2016
• Docket Number: Case No. 3:13-cv-935-J-39PDB
• Parties: MICHAEL EUGENE GRIMAGE, Plaintiff, v. D. HILLIARD, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

MICHAEL EUGENE GRIMAGE, Plaintiff, v. D. HILLIARD, et al., Defendants.

Case No. 3:13-cv-935-J-39PDB

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

December 5, 2016

ORDER

I. Status

Plaintiff Michael Eugene Grimage,¹ an inmate of the Florida Department of Corrections (FDOC), who is proceeding pro se, initiated this case by filing a civil rights complaint (Doc. 1). He is proceeding on an Amended Civil Rights Complaint (Amended Complaint) (Doc. 21) filed pursuant to 42 U.S.C. § 1983.² The Court will construe the pro se Amended Complaint liberally.

The remaining Defendants are D. Hilliard and Nurse Tollick. The remaining claims are: (1) Defendant Hilliard, in his individualcapacity, used excessive force against Plaintiff in violation of the Eighth Amendment, and (2) Defendant Tollick, in her individual capacity, was deliberately indifferent to Plaintiff's serious medical needs, in violation of the Eighth Amendment. As relief, Plaintiff seeks compensatory damages and injunctive relief that he be sent for an examination by a doctor not employed by Florida State Prison (FSP).

This cause is before the Court on Defendants' Motion for Summary Judgment (Defendants' Motion) (Doc. 85).³ Plaintiff responded.⁴ See Plaintiff's Amended Response to Defendants' Motion for Summary Judgment (Amended Response) (Doc. 133).

II. Standard of Review

The Eleventh Circuit set forth the summary judgment standard.

Summary judgment is proper when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The substantive law controls which facts are material and which are irrelevant. Raney v. Vinson Guard Service, Inc., 120 F.3d 1192, 1196 (11th Cir. 1997). Typically, the nonmoving party may not rest upon only the allegations of his pleadings, but must set forth specific facts showing there is a genuine issue for trial. Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir. 1990). A prose plaintiff's complaint, however, if verified under 28 U.S.C. § 1746, is equivalent to an affidavit, and thus may be viewed as evidence. SeeMurrell v. Bennett, 615 F.2d 306, 310 n.5 (5th Cir. 1980). Nevertheless, "[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge." Fed. R. Civ. P. 56(c)(4). "[A]ffidavits based, in part, upon information and belief, rather than personal knowledge, are insufficient to withstand a motion for summary judgment." Ellis v. England, 432 F.3d 1321, 1327 (11th Cir. 2005).

As we've emphasized, "[w]hen the moving party has carried its burden under Rule 56[], its opponent must do more than simply show that there is some metaphysical doubt as to the material facts . . . Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91L.Ed.2d 202 (1986). Unsupported, conclusory allegations that a plaintiff suffered a constitutionally cognizant injury are insufficient to withstand a motion for summary judgment. SeeBennett v. Parker, 898 F.2d 1530, 1532-34 (11th Cir. 1990) (discounting inmate's claim as a conclusory allegation of serious injury that was unsupported by any physical evidence, medical records, or the corroborating testimony of witnesses). Moreover, "[w]hen 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, 167 L.Ed.2d 686 (2007).

Howard v. Memnon, 572 F. App'x 692, 694-95 (11th Cir. 2014) (per curiam) (footnote omitted).

Of import, at the summary judgment stage, the Court assumes all the facts in the light most favorable to the non-moving party, in this instance, the Plaintiff, and draws all inferences in the Plaintiff's favor. McKinney v. Sheriff, 520 F. App'x 903, 905 (11th Cir. 2013) (per curiam). "Summary Judgment is appropriate only when, under the plaintiff's version of the facts, 'there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Felio v. Hyatt, 639 F. App'x 604, 606 (11th Cir. 2016) (per curiam) (citation omitted). Therefore, summary judgment would properly be entered in favor of Defendants where no genuine issue of material fact exists as to whether Plaintiff's constitutional rights were violated.

III. Summary of Plaintiff's Complaint

In his verified Amended Complaint,⁵ Plaintiff alleges the following facts. On April 5, 2013, while housed at FSP C-wing, Defendant Hilliard escorted Plaintiff to cell C-1105. Amended Complaint at 5. Hilliard instructed Plaintiff to get on top of the bare steel bunk on his knees, while handcuffed to a waist chain and ankle restraints, so that Hilliard could remove the restraints. Id. After the waist chain and ankle restraints were removed, Hilliard ordered Plaintiff to get off of the bunk the same way he got on it. Id. at 5-6. Plaintiff, still handcuffed behind his back, informed Hilliard that it was impossible to get up without injuring his leg due to the high arch of the steel guardrail. Id. Hilliard grabbed Plaintiff by his shirt collar, yanking the collar backwards. Id. at 6. Plaintiff came off of the bunk awkwardly and slipped on the wet floor. Id. Plaintiff slipped and fell, hitting his head on the wall and iron towel rack, knocking himself unconscious. Id. Hilliard denied Plaintiff medical services on April 5, 2013. Id.

On April 15, 2013, Plaintiff returned from medical where an investigation was undertaken to confirm injuries sustained in theApril 5, 2013 incident. Id. When he entered C-wing, Hilliard escorted Plaintiff to the shower area. Id. Hilliard grabbed Plaintiff by his throat and threatened to do him harm. Id. On April 29, 2013, Plaintiff filed a grievance, which was approved by separating him from Hilliard. Id. Hilliard continued to harass Plaintiff. Id.

On April 10, 2013, Nurse Tollick denied Plaintiff pain relief, treatment, and referral to a doctor for the injuries sustained on April 5, 2013. Id. at 7. Tollick denied treatment at the request of Hilliard, who was present. Id.

On April 23, 2013, Tollick refused to examine Plaintiff and treat the injuries sustained on April 5, 2013. Id. She refused to examine Plaintiff's complaint of head and neck swelling. Id.

On May 30, 2013, Tollick falsified medical documents, claiming that Plaintiff refused medical assistance after she discovered that Plaintiff had requested a different nurse. Id. Plaintiff complains that he suffered injuries to his neck, head, and back, and the symptoms (dizziness, headaches, swelling, and blackouts) persist. Id.

IV. Defendants' Motion

Defendants Hilliard and Tollick contend that the are entitled to summary judgment in their favor. They first assert that the action is barred pursuant to 42 U.S.C. 1997e(e). Defendants' Motion at 11-17. They also ask this Court to enter summaryjudgment in their favor because Plaintiff failed to exhaust his administrative remedies with respect to the claim that Hilliard used excessive force on April 5, 2013, and Tollick displayed deliberate indifference on April 10, 2013 and May 30, 2013. Id. at 17-21. Defendant Tollick asks for summary judgment on the claim of deliberate indifference. Id. at 21-24. Hilliard asks for summary judgment on all excessive force claims. Id. at 24-26. He also asks for summary judgment on Plaintiff's claim of harassment, asserting that this particular assertion does not present a claim of constitutional dimension. Id. at 26-27. Defendants urge this Court to find that Plaintiff is not entitled to injunctive relief. Id. at 27-28. Finally, Defendants state they are entitled to qualified immunity. Id. at 28-29.

V. Plaintiff's Amended Response

Plaintiff, in his Amended Response, urges this Court to find that there remain genuine issues of material fact in dispute. Amended Response at 2. He relies on the medical records, and claims the records will show the injuries he suffered at the hands of Hilliard and will demonstrate Tollick's deliberate indifference to those needs. Id. Plaintiff states his claims of injury at the hands of Hilliard were left unaddressed until the Investigating Officer of Plaintiff's grievances ordered an examination of his alleged injuries, "which revealed swelling in head, hand, andtonsil area" more than ten days after the infliction of the injuries. Id.

In his Sworn Affidavit (Doc. 133-1) at 1, Plaintiff states that he will show "how Defendant Tollick deliberately refused to report (accurately) and/or examine the extensive swelling on head and hand and finger imprints on neck, that were evident (physically) to another nurse."

VI. Summary of Defendants' Version of the Events

Defendants deny Plaintiff's allegations of wrongdoing. Defendants state that the medical record shows that Plaintiff has complained of, and received treatment for, head, neck, and back injuries for years prior to the April 5, 2013 incident. Defendants' Motion at 4; Ex. D, Declaration of Albert Carl Maier, M.D., J.D., (Doc. 85-4) at 2-3, ¶9-¶18; Ex. E, Plaintiff's Medical Records (Doc. 98-3).⁶ In particular, Defendants point to the factthat Plaintiff rammed his head into a glass window on June 19, 2012. Id. at 41.

In his Declaration, Hilliard states that he was an employee of the FDOC at FSP in April, 2013, and on April 5, 2013, he placed Plaintiff in his cell after escorting him to the cell for housing placement. Ex. G,...