Carmichael v. Dunn

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION LEON CARMICHAEL, JR., : Plaintiff, : : v. : CIVIL ACTION 1:17-00087-KD-MU : JEFFERSON DUNN, et al., : Defendants. : ORDER

This order AMENDS and CORRECTS that portion of the Order (Doc. 178)1 relating to Defendant ADOC Drug Treatment Counselor Mallory Mixon (Beasley) -- to address Car- michael's claims against her on summary judgment2 and to correct clerical errors. This order fur- ther SUA SPONTE RECONSIDERS that portion of the Order (Doc. 178) relating to Defendant ADOC Correctional Officer/CERT Member Akeem Edmonds and Defendant ADOC Cor- rectional Captain Darryl Fails, to reassess Carmichael's claims against them on summary judg- ment in light of factual errors. In this case, Carmichael asserts 42 U.S.C. § 1983 violations (use of excessive force, failure to protect/intervene, and denial of medical care); "state law claims of assault & battery[;]"claims for slander and harassment; and a request for declaratory and injunctive relief. (Doc. 1).

1 The Order addressed Plaintiff's Complaint (Doc. 1), Defendants' Motions for Summary Judgment (converted from Answers/Special Reports) (Docs. 39-42, 64-65, 83-84, 86, 102-103, 116-117, 128-131 and 154-155 per Docs. 122, 123, 151, 156), Plaintiff's Response (Doc. 176); and Mixon's Answer/Special Re- port (Docs. 128-129).

2 The Court inadvertently referenced Mixon as a non-party per her designation as such in Doc. 129. However, Mixon is a named defendant and thus, her summary judgment is now addressed herein. I. Defendant Mixon As detailed in Doc. 178, the parties do not dispute that any Defendant, employed as a med- ical provider for the State of Alabama via the ADOC, is a state actors. Accordingly, defendant Mixon, employed by the State of Alabama at the time, is immune from suit in their official capac- ities. See Parker v. Williams, 862 F.2d 1471, 1476 at note 4 (11th Cir. 1989), overruled on other

grounds in Turquitt v. Jefferson Cty. Ala., 137 F.3d 1285 (11th Cir. 1998) (“[S]uits against an official in his or her official capacity are suits against the entity the individual represents[]”). Thus, the summary judgments as to Mixon, in her official capacities are GRANTED. A review of Carmichael's complaint (Doc. 1) reveals no allegations or claims, whatsoever, against Mixon. Indeed, Mixon is not even a named Defendant by Carmichael. Mixon is also not a member of CERT. Apparently, Mixon was inadvertently listed by name in a request for waiver of service and summons form (Doc. 95) and as a result, was brought into this litigation and there- after repeatedly treated as a defendant in this case. Moreover, the docket reflects that Mixon re- cently filed her special report as a "non-party." (Doc. 129). Mixon's status then, as a defendant in

this case, appears to have been a clerical error. Nevertheless, to the extent she could be construed as a properly named defendant in this case, the Court finds as follows. Defendant Mixon is a drug treatment counselor employed by the ADOC at Ventress Correctional Facility in Clayton, Alabama (February 2015-May 2017). (Doc. 129-1 (Aff. Mixon)). Mixon has never been assigned to any other ADOC correctional facility, has "never worked at Holman[,]" and has never worked on a CERT team. (Id.) Mixon also asserts in her special report that she was not present at Holman on November 9, 2016 and that at that time, she was at Ventress working as a drug treatment counselor. Mixon adds "I have no idea as to why my name was even involved in this. I have no knowledge of the alleged incident. I was not present at Holman before, after or during this alleged incident." (Id.) On summary judgment, Carmichael does not assert otherwise. Notably, Carmichael does not make any specific allegations against Mixon (and has not). Upon consideration, there is no support for Carmichael's claims against Mixon such that summary judgment is GRANTED in her favor as to all claims (excessive force, failure to protect/intervene, denial of medical care, assault, battery, slander, harassment, declara-

tory relief and injunctive relief) and she is dismissed from this case. II. Defendant Fails As to Defendant Fails, the Court finds as follows. Defendant Fails answered, denying the allegations, and filed special reports and affidavits in support of his positions. (Doc. 39; Doc. 40; Doc. 40-9 (Aff. Fails)); Doc. 40-2 at 4 (duty log)). Included with Fails' report is the November 9, 2016 Incident report, November 9, 2016 Duty Officer Report, disciplinary records, medical rec- ords, and his affidavit. In his Affidavit, Fails asserts: "I was present when the CERT Teams re- ported to Holman... and entered B-Dorm. I was present during the time that the complaint list[s] as the time of the alleged incidents for assault and battery, or excessive force. At no time during

the time I was in B-Dorm did I observe any members of the CERT Team assaulting any inmate, or use excessive force in my presence. Once the CERT team commanders entered the dorm, they oversaw the search of the dorm and I left the dorm and return [sic] to my Office." (Doc. 40-9 at 1 (Aff. Fails)). Fails also attests that "[a]t no time have I denied an inmate medical care[,]" and "[t]here is no truth to any of the allegations lodged against me...." (Id. at 2). The Court previously found that the “uncontradicted evidence indicates that … Fails [was] … not present in the B-Dorm”. (Doc. 178 at 22). However, the Court was incorrect. Fails asserts that he was present in B-Dorm. And, Carmichael asserts in response to summary judgment that his fellow inmate Byer saw Fails turn towards the C-Dorm and then go to B-dorm at the time of the incident with Defendants Streeter and Baldwin, and that fellow inmate Johnson encountered Fails -- with Defendants Stewart, Mitchell and Baldwin -- standing in front of Central Control and that Fails then "lead the Cert Team down the hall towards the dorms." (Doc. 176 at 11-12; Doc. 176-2 (Aff. Byer); Doc. 176-3 (Aff. Johnson)). Accordingly, the Court WITHDRAWS the grant of summary judgment as to Defendant Fails on Carmichael’s claims of excessive force, assault

and battery, and failure to protect.3 III. Defendant Edmonds The Court previously determined that Edmonds “assert[s] impossibility due to their phys- ical presence....elsewhere and based on their specific allegations that they did not use any force on Carmichael.” (Doc. 178 at 23). The Court was incorrect. Edmonds asserts that he was present in B-Dorm. (Doc. 84-6 (Aff. Edmonds)). Per Edmonds, he maintained his post and did not observe any abuse, assaults, or excessive force. However, absent from Edmonds' affidavit is any specific assertion that he did not use any force against Carmichael or that he did not use any force at all. Accordingly, the Court WITHDRAWS the grant of summary judgment as to Defendant Edmonds on Carmichael’s claim of excessive force, assault and battery, and failure to protect. 4

IV. Conclusion

Summary judgment is GRANTED as to Mixon as to all claim.

DONE and ORDERED this the 5th day of February 2020. /s/ Kristi K. DuBose KRISTI K. DuBOSE

3 To the extent Hails was otherwise granted summary judgment (i.e. Slander and Harassment) in Doc. 178, that determination is not withdrawn. The claims of excessive force, assault and bat- tery, and failure to protect remain under advisement.

4 To the extent Edmonds was otherwise granted summary judgment (i.e. Slander and Harass- ment) in Doc. 178, that determination is not withdrawn. The claims of excessive force, assault and battery, and failure to protect remain under advisement. CHIEF UNITED STATES DISTRICT JUDGE