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Davis v. Davis

United States District Court, E.D. Kentucky, Southern Division, London

March 23, 2017

WILLIE DAVIS, Plaintiff,
v.
LIEUTENANT DAVIS, et al., Defendants.

          ORDER

          GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE.

         This matter is before the Court upon Petitioner Defendants' Second Motion for Summary Judgment. [R. 61.] Consistent with local practice, this matter was referred to Magistrate Judge Hanly A. Ingram, who filed a Report and Recommendation on February 1, 2017, recommending that Defendants' Motion for Summary Judgment “be DENIED as to Defendants' exhaustion and qualified immunity defenses and Plaintiff's Eight Amendment claim and GRANTED in favor of Defendants as to Plaintiff's retaliation claim.” [R. 78 at 23].

         Under Federal Rule of Civil Procedure 72(b)(2), a petitioner has fourteen days after service to register any objections to the R&R or else waive his rights to appeal. In order to receive de novo review by this Court, any objection to the recommended disposition must be specific. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). A specific objection “explain[s] and cite[s] specific portions of the report which [counsel] deem[s] problematic.” Robert v. Tesson, 507 F.3d. 981, 994 (6th Cir. 2007) (quoting Smith v. Chater, 121 F.3d 709, 1997 WL 415309, at *2 (6th Cir. 1997) (unpublished opinion)). A general objection that fails to identify specific factual or legal issues from the Recommendation, however, is not permitted, since it duplicates the magistrate's efforts and wastes judicial economy. Howard v. Secretary of Health and Human Services, 932 F.2d 505, 509 (6th Cir. 1991).

         After this Court granted an extension of time [R. 80], Defendants filed timely objections to the Recommendation. [R. 81.] Defendants make three specific objections. They assert that the Magistrate Judge erred in recommending the denial of Defendants' motion for summary judgment as to Plaintiff's failure to exhaust his administrative remedies and Plaintiff's Eighth Amendment claim; and the Magistrate Judge erred in recommending denial of Defendants' qualified immunity defense. Defendants' objections are sufficiently definite to trigger this Court's obligation to conduct a de novo review. See 28 U.S.C. § 636(b)(1)(c). The Court has satisfied that duty, reviewing the entire record, including the motions, briefing, the parties' arguments, relevant case law and statutory authority, as well as applicable procedural rules. For the following reasons, Defendants' objections will be OVERRULED.

         I

         A

         Judge Ingram's Recommended Disposition accurately sets forth a more detailed account of the factual and procedural background of the case and the applicable standard of review for granting summary judgment. Except for what the Court summarizes in its discussion below, the Court incorporates his discussion of the record and the standard of review into this Order.

         On August 5, 2011, Davis was housed in the Special Housing Unit (“SHU”) at USP McCreary. [See R. 27 at 2.] At roughly 8:30 a.m., Davis “broke the head of the fire suppression overhead sprinkler in his cell.” [R. 61-1 at 4.] Davis's cell flooded and he began to push the water from his cell into the hall of the SHU. [R. 61-1 at 4.] The water from his cell allegedly contained “urine and fecal matter.” [R. 61-1 at 4.] For cleaning purposes, Davis had to be removed from his cell. [R. 61-1 at 4.] This is where Defendants and Plaintiff have different stories of what occurred next.

         As for the Plaintiff, Davis alleges that as he was being removed from his cell by Defendants, Officer Daryl Coffman[1] stood at the gate and said “vulgar things in an effort to provoke” him. [R. 27 at 2.] Davis admits he spit in the direction of Officer Coffman. [R. 27 at 2.] After he spit in the direction of Officer Coffman, Davis alleges the three Defendants

slammed [him] on the floor, on [his] chest, subduing [him, ] and after [he] was subdued, each Defendant proceeded to physically assault [him], and one of the Defendants covered the right side of [his] face with a pink towel, so that [he] couldn't see who was doing what, and they proceeded to twist [his] leg, and kick [him] in the head, until [he] lost consciousness, and they continued to use physical violence to wake me back up. During the assault, [he] heard J. Best say, “F*** n****, son of a b****, ” and each Defendant continued to maliciously and sadistically assault [him.]”

[R. 27 at 2-3.] Davis reports that while Defendants were assaulting him, he was handcuffed behind his back with his chest on the floor and that he did not resist once on the floor. [R. 27 at 3.] Davis alleges that excessive force was used against him in retaliation for filing for administrative relief. [R. 27 at 3.]

         According to Defendants, as Plaintiff was being removed from his cell, he kicked water containing urine and fecal matter onto the Defendants. [R. 61-1 at 4.] Plaintiff made threats against the staff while the staff was giving him orders to calm down. [Id.] Plainitff made a threat at Officer Coffman and attempted to break away from the Defendants who were restraining him. [R. 61-1 at 4.] Plaintiff lunged toward Officer Coffman and spit in his face. [R. 61-1 at 4.] After this occurred, Defendants made the decision to take the Plaintiff to the ground in order to “regain control of the situation.” [R. 61-1 at 5.] While Defendants were attempting to subdue Plaintiff, they allege that he struggled and was verbally abusive. [R. 61-1 at 5.] Further, Plaintiff attempted to bite Defendant Best. [R. 61-1 at 5.] Defendant Davis requested leg restraints and called for other staff members to help. [R. 61-1 at 5.]

         Defendant Davis also requested that the incident be filmed on a handheld camera. Unfortunately, the camera footage from the handheld camera did not begin until Defendant was almost on his feet. [See R. 61-5 at 6.] Defendants have also submitted camera footage from a security camera at the end of the hall, though without sound. [See id.] The security camera footage is bad quality and it is impossible to tell exactly what is happening. The security camera appears to be placed at the other end of a long hall from where the incident occurred and various prison staff prevent the viewer from seeing the details of the incident. Both videos were submitted in camera and under seal to the court. Neither piece of video footage is clear enough to affirm the allegations of the Plaintiff or the Defendant.

         Both parties agree that after the incident on the floor, Plaintiff was placed in leg restraints and led to an observation cell. [R. 61-1 at 5.] ¶ 11:20 a.m., Davis was medically assessed and reported paint to the right side of his face, his left side, and right ankle. [R. 61-4 at 5.] The medical assessor found no injuries to the Plaintiff. [R. 61-1 at 5.]

         Magistrate Judge Ingram detailed Davis's attempts to obtain administrative relief, a summary of which follows. The basis for much of Judge Ingram's detailed history was taken from an affidavit from Joshua Billings, an attorney at FMC Lexington. [See R. 61-5.] Plaintiff filed a request for Administrative Remedy with the warden at USP McCreary on August 17, 2011. [R. 27 at 3; R. 61-5 at 3.] Next, on August 29, 2011, Plaintiff appealed his claim to the Mid-Atlantic Regional Director, but he failed to attach necessary documents and his appeal was rejected. [R. 27 at 4.] He refiled his appeal on October 4, 2011, with the necessary documents, and his appeal was accepted for consideration. [R. 27 at 4.] The Regional Director found that the investigation did not reveal any evidence that “Defendants failed to follow proper policy and procedure during the incident.” [R. 27 at 4.] Plaintiff appealed this decision on December 27, 2011, but he failed to attach necessary documents and had marked his appeal as sensitive, which it was not. [R. 27 at 4; R. 61-5 at 4.] Consequently, his appeal was rejected on January 23, 2012. [R. 27 at 4.] Plaintiff was given 15 days to correct his errors, but he failed to do so. [R. 27 at 4.] Though not made explicitly clear, Plaintiff indicated that he attempted to comply with the requirements within 15 days, but he “went in transit, ” and couldn't access the copies of his records he needed. [R. 27 at 5.] In contrast, Mr. Billings's affidavit states that Plaintiff arrived at USP Lewisburg, where he was being transported on November 11, 2011[2], and his property was received by him on December 28, 2011, one month before Plaintiff was given notice he had 15 days to correct the errors on his appeal. [R. 61-5 at 5.] Further, Defendants allege that Plaintiff did receive his legal documents according to an Inmate Personal Property record dated on December 28, 2011. [R. 61-5 at 57.] This record states Plaintiff received “2 [inch] letters, ” with no further description, along with other personal effects. [R. 61-5 at 57.] However, in Plaintiff's Appellant Brief, he alleges that he never received the “Administrative Remedy Response, ” he presumes because his mail had been tampered with. Reply Brief by Plaintiff-Appellant at 4, Davis v. Davis, No. 14-5247 (6th Cir. Nov. 24, 2014). Davis alleges that, when he tried to respond within the 15 required days, he requested a “copy of the administrative remedy response” from the administrative remedy coordinator, but it was not provided to him. Id. at 5.

         On January 24, 2012, the Bureau of Prisons referred Plaintiff's claim of excessive force to Special Investigative Agent Corriveau at USP McCreary. [See R. 61-4 at 2.] SIA Corriveau interviewed the Plaintiff and each Defendant, as well as other staff at USP McCreary, watched the video surveillance footage, and reviewed Plaintiff's medical assessment. [R. 61-4 at 3.] He found ...


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