Palmer v. Monroe et al

Filing 97

OPINION AND ORDER. Defendant Bracy's Motion to Sanction 89 and Second Motion to Sanction Plaintiff 94 are GRANTED. The Clerk is directed to STRIKE Plaintiff's Declaration of Officer Snider (Doc. 88-4 at 17) and STRIKE the Declaration of inmate Coleman (Doc. 88-4 at 25-27). Plaintiff knowingly, or with reckless disregard for the truth, brought false information or evidence before this Court. The Court strongly recommends that Plaintiff be subject to disciplinary procedures purs uant to the rules of the Department of Corrections. The Clerk is directed to mail a certified copy of this Order to the Warden at Florida State Prison so that disciplinary procedures pursuant to the rules of the Department of Corrections, as provide d in Section 944.09, Fla. Stat., may be instituted. The Court construes Plaintiff's Motion to Sanction 95 to be Plaintiff's response to Defendant's second motion to sanction. Plaintiff's Motion to Sanction is DENIED, as it is without merit. Defendant Bracy's Motion for Summary Judgment 62 is GRANTED. The Complaint is dismissed with prejudice as to Defendant Bracy. The Clerk is directed to enter judgment accordingly and CLOSE this case. Defendant Hemphill's motion for reconsideration 90 shall remain pending. Signed by Judge Charlene E. Honeywell on 9/9/2011. (BGS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LESAMUEL PALMER,
Plaintiff,
vs.

Case No.

2:10-cv-98-FtM-36SPC

J. BRACY,
Defendant.
________________________________
OPINION AND ORDER
I.
This matter comes before the Court upon review of the Motion
for Summary Judgment filed on behalf of Defendant Bracy (Doc. #62,
Motion) on February 16, 2011. Defendant submits numerous exhibits
in support of his Motion (Doc #62-1), including: “use-of-force
checklist”

form,

incident

reports

filed

by

all

correctional

officers involved on the date of the incident, medical documents,
cannister history logs, witness statements, and a disciplinary
report worksheet (Exh. A); Affidavit of Officer T. Gjerde (Exh. B),
Affidavit of Defendant J. Bracy (Exh. C); Affidavit of officer M.
Thomas (Exh. D), Affidavit of inmate witness Griffin (Exh. E);
Declaration of inmate M. Coleman (Exh. F); and, Affidavit of
Officer Whitt (Exh. G).
Plaintiff filed a Response (Doc. #88, Response) in opposition
to Defendant Bracy’s Motion and filed the following supporting
exhibits

(Doc.

#88-1,

#88-2,

#88-3,

#88-4,

#88-5):

charging

document from Plaintiff’s underlying criminal case and unrelated

inmate grievances (Doc. #88-1, Pl’s Exh. A); bureau of state
investigations case summary form dated June 9, 2009, pertaining to
Plaintiff’s fear of Officer Kraus (Doc. #88-2, Pl’s Exh. B); inmate
grievances submitted by Plaintiff concerning unrelated incidents
involving

Officer

Kraus

and

October 12, 2009 incident

Plaintiff’s

medical

records

from

(Doc. #88-3, Pl’s Exh. C); “Affidavit”

of Plaintiff, inmate grievance submitted by Plaintiff concerning
October 12, 2009 incident at issue sub judice, Declaration of
inmate

Kevin

Neal,

Declaration

of

inmate

Sylvester

Jones,

Declaration of inmate Willie Knight, Declaration of inmate Marquis
Jenkins, Declaration of inmate Leroy Handy, Declaration of Officer
Derek

Snider,

Declaration

of

former

inmate

Michael

Horton,

Declaration of inmate Leon Burroughs, Declaration of former inmate
Steven Moore, Declaration of former inmate Sherman Dorsey, and,
Declaration of inmate Michael Coleman
and

Defendant

Bracy’s

Responses

(Doc. #88-4, Pl’s Exh. D);

to

Plaintiff’s

“deposition

questions” and interrogatories (Doc. #88-5, Pl’s Exh. E).

This

matter is ripe for review.

II.
The

Court

must

first

address

two

matters

concerning

Plaintiff’s exhibits attached to his response in opposition to the
Defendant’s Motion for Summary Judgment.

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A.

Motions to Sanction

At the outset, the Court notes that Defendant Bracy moves to
sanction Plaintiff for altering Officer Snider’s Declaration.
See Doc. #89.

Defendant states that Plaintiff altered Officer

Snider’s Declaration by removing the last sentence of the officer’s
declaration and by adding a period at the end of the sentence with
a black pen.

Indeed, a review of Officer Snider’s Declaration

reveals that the Declaration Plaintiff submitted to the Court is
not the same as the Declaration filed by Defendant.

Defendant

Bracy attaches to his motion seeking sanctions Officer Snider’s
complete Declaration and an Affidavit from Snider attesting that
the version submitted by Plaintiff was altered.

See Doc. #89-1,

Exhs. A-B.
Plaintiff filed a response (Doc. #92) in opposition and also
filed a supporting Declaration, under penalty of perjury, stating
that

neither

he,

nor

Declaration (Doc. #93).

anyone

else

changed

Officer

Snider’s

Plaintiff acknowledges that he had the

document in his possession for approximately 7 days before he filed
his response and attached Snider’s Declaration.

Plaintiff submits

that he does not have access to any “machinery to alter” the
document.

Doc. #92 at 2.

Additionally,

Defendant

Bracy

filed

a

second

motion

to

sanction Plaintiff regarding the Declaration of inmate Michael
Coleman that Plaintiff submitted in support of his Response to the

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Defendants’ Motion for Summary Judgment.
Defendant

Bracy’s

Declaration

from

second
inmate

motion
Michael

to

Doc. #94.

sanction,

Coleman

In support of

he

attaches

attesting

that

a

the

Declaration from Coleman that Plaintiff submitted is not his own
and is a forgery.

Doc. #94-1.

Plaintiff files a “motion to sanction defendant,” which the
Court construes to be his response to Defendant Bracy’s second
motion to sanction. Doc. #95. In support, Plaintiff files his own
Declaration (Doc. #95-1), a copy of the Declaration Plaintiff
previously submitted from inmate Coleman (Doc. #95-1), and, a copy
of the witness statement previously submitted to the Court (Doc.
#95-3).

In Response, Plaintiff submits that defense counsel is

“attempting to perpetrate a fraud on the court.”

Id. at 1.

Plaintiff states that he was housed with inmate Coleman on wing 2
at Suwanee Correctional Institution when the two inmates discussed
the altercation.

At that time, Plaintiff states inmate Coleman

told Plaintiff that defense counsel saw Coleman about this case.
Id. at 1.

Plaintiff states that he will take a “telegraph test” to

prove that the “statement of Mr. Coleman is true as stated.”

Id.;

see also Doc. #95-2 (attesting, under penalty of perjury, that
Coleman’s Declaration is not a forgery and was signed by Mr.
Coleman).
The United States Supreme Court has recognized a court’s
inherent

powers

to

impose

sanctions

-4-

in

response

to

abusive

litigation practices.

Link v. Wabash Railroad Co., 370 U.S. 626,

632 (1962); see also Peer v. Lewis, 606 F.3d 1306, 1316 (11th Cir.
2010).

Honesty in representations to the Court is of utmost

importance.

Rule 11 of the Federal Rules of Civil Procedure

“forbids lying in pleadings, motions, and other papers filed with
the court[.]”

Zocaras v. Castro, 465 F.3d 479, 484 (11th Cir.

2006), cert. denied, 549 U.S. 1228 (2007).

Misrepresentations to

the Court under Rule 11(b) are subject to sanctions pursuant to
Rule 11©.

Fed. R. Civ. P. 11©.

Pro se litigants are subject to

the rules of the court, including the Rules of Federal Procedure.
Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.).
Based on the parties’ submissions, the record is clear that
Officer Snider’s Declaration was altered before Plaintiff submitted
Snider’s Declaration with his Response.

The last sentence on

Snider’s Declaration, which read “[o]ne of those three instances
was the occurrence in this case which resulted in inmate LeSamuel
Palmer attacking inmate Michael Coleman[,]” was deleted and a
period was added with a black pen.

Compare Decl. Snider, Doc. #89-

01 at 3; with Pl’s Decl. Snider, Doc. #88-4 at 17.

In response,

Plaintiff simply claims he did not alter Snider’s Declaration and
alleges that he does not have access to “machinery” that could have
altered the document.

Plaintiff fails to acknowledge that the two

Declarations are indeed different, nor does Plaintiff suggest who
could have changed the Declaration that he admits was in his

-5-

possession

for

approximately

7

days

before

he

submitted

the

Declaration with his Response.
The court has discretion to decide factual disputes concerning
the authenticity of evidence. Gilmer v. Colorado Institute of Art,
12 F. App’x 892, 895 (10th Cir. 2001).

The Court finds the record

containing sworn statements from the parties is developed as to
this

issue

and

does

not

necessitate

an

evidentiary

hearing.

Plaintiff’s assertion that he did not alter Snider’s Declaration is
incredulous because it is clear that the Declaration was altered.
If Plaintiff did not alter Snider’s Declaration, then someone must
have altered it for him.

More importantly, however, is the fact

that Plaintiff submitted an altered document to this Court.

Also,

the only person with any motive to alter the document is Plaintiff.
The last sentence of Snider’s Declaration stated that Plaintiff
attacked inmate Coleman, which was contrary to Plaintiff’s position
in this case that Defendant Bracy failed to protect Plaintiff from
inmate Coleman.

Moreover, the Court finds that Plaintiff did not

require access to any “machinery” to alter the document, other than
white-out and/or paper, a copying machine, and a black pen.
Therefore, the Court will not consider Plaintiff’s version of
Officer Snider’s Declaration in ruling on the Defendant’s Motion
for Summary Judgment and it will be stricken.
Additionally, the Court finds that Plaintiff submitted a
forged document when he filed the Declaration from inmate Coleman

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in support of his Response. The record demonstrates that inmate
Coleman did not write the Declaration that Plaintiff submits as
inmate Coleman’s statement.

See 94-1 (attesting under penalty of

perjury that Coleman did not make the statement Plaintiff purports
to be inmate Coleman’s). The Court notes that Plaintiff appears to
be careful with his wording in his response to the motion to
sanction. Plaintiff does not come forth in his Response and
specifically

explain the details regarding how he received inmate

Coleman’s declaration.1 Of significance is the fact that Plaintiff
submitted a forged document to this Court.

Thus, the Court will

not consider Plaintiff’s Declaration from inmate Coleman in ruling
on the Defendant’s Motion for Summary Judgment and it will be
stricken.
Plaintiff’s behavior has threatened the integrity of the
judicial process.

Litigants, even pro se litigants, cannot simply

change another person’s statement given under oath and submit it to
the Court in support of his or her position.

1

Moreover, a litigant

The Court also expresses concern regarding how Plaintiff
received numerous declarations from former prisoners and current
prisoners incarcerated in different institutions from Plaintiff.
The Department of Corrections’ regulations prohibit correspondence
from inmate-to-inmate and normally either the Court, or defense
counsel, has to assist an incarcerated plaintiff with this type of
discovery. In this case, Plaintiff never sought assistance from
the Court with this discovery, nor is there any indication that
defense counsel assisted Plaintiff. The Court further notes that
all of the inmates’ declarations are typed in the same font and
have consistent grammatical errors. Defendant, however, has not
challenged the authenticity of these documents. Consequently, the
Court considers them to the extent relevant.
-7-

cannot be permitted to submit forged documents to the Court.

The

Court is concerned that Plaintiff took the position that he did not
alter Officer Snider’s Declaration when it is clear that Plaintiff
is the only person who had a vested interest in altering the
document.

Plaintiff compounded this deception by submitting the

forged Declaration of inmate Coleman.
Plaintiff knowingly or with reckless disregard for the truth
brought false information or evidence before this Court.
Plaintiff has engaged in bad faith litigation.

Indeed,

Thus, the Court

finds Plaintiff’s actions warrant the imposition of sanctions.
Consequently, as set forth in § 944.279(1), the Court strongly
recommends that Plaintiff be subject to disciplinary procedures
pursuant to the rules of the Department of Corrections.

B.

Plaintiff’s Affidavit

Next, the Court notes that Plaintiff’s affidavit submitted in
support of his Response in opposition to the Defendant’s Motion for
Summary

Judgment

is

neither

notarized,

declaration under the penalty of perjury.

nor

submitted

as

a

The Court further notes

that Plaintiff’s affidavit is undated. See Aff. of Plaintiff, Pl’s
Exh. D at 1-5. An affidavit is “[a] voluntary declaration of facts
written down and sworn to by the declarant before an officer
authorized to administer oaths, such as a notary public.”

Life

Ins. Co. of N. America v. Foster, n. 5 (D. Ala. 2010)(citations

-8-

omitted).

The affidavit must be based on personal knowledge, set

forth facts that would be admissible in evidence, and show that the
affiant is competent to testify about the matter therein.
Civ. P. 56(e)(1).

Fed. R.

Thus, although entitled “Affidavit of LeSamuel

Palmer,” the affidavit does not comport with the federal rules to
be considered as evidence in this matter.

Similarly, under 28

U.S.C. § 1746, a declaration submitted “under the penalty of
perjury, and dated” is admissible in lieu of a sworn affidavit on
a motion for summary judgment.

However, the statute expressly

requires that in order for a declaration to substitute for an
affidavit, the declaration must be given under penalty of perjury
and dated.

Even if the Court construes Plaintiff’s “affidavit” to

be a declaration, the declaration does not meet the requirements of
the statute because it is not given under penalty of perjury and is
undated.

Wells v. Cramer, 262 F. App’x 184, 2008 WL 110088 *3

(11th Cir. 2008)(stating “Federal law . . . does not provide an
alternative to making a sworn statement, but requires that the
statement include a handwritten averment, signed and dated, that
the statement is true under the penalties of perjury.”). Thus, the
Court will exclude Plaintiff’s affidavit from consideration in this
case.
III.
Turning now to the facts of this matter, Plaintiff brought
this action against correctional officers and the physician at

-9-

Charlotte Correctional Institution stemming from an incident that
occurred on the morning of October 12, 2009, when Plaintiff claims
inmate Michael Coleman attacked him during recreation at Charlotte
Correctional.

Complaint

at

11-12.

At

this

stage

of

the

proceedings, this action remains pending only as to Defendant Bracy
based on his alleged failure to protect Plaintiff from the attack.
According

to

the

Complaint,

prior

to

the

altercation,

Plaintiff asked Defendant Bracy if he could “replace [sic] the
Plaintiff in another cage.”

Complaint at 12.

According to the

Complaint, Defendant Bracy responded to Plaintiff by asking “What
are you afraid of?”

Plaintiff states that Bracy then started to

laugh and walked away.

Id.

Plaintiff alleges that because his request was ignored, inmate
Coleman had the opportunity to break the cage-like fence separating
Coleman from Plaintiff, pull Plaintiff through the hole into his
cage, and attack Plaintiff by punching him, kicking him, and trying
to stab him with a homemade shank.
alleges

that

the

Defendant

did

Id.
not

Additionally, Plaintiff
immediately

Plaintiff’s pleas for help during the attack.

respond

Id. at 13.

to
When

correctional officers responded to the altercation after hearing
other inmates in the yard yelling, Plaintiff claims he was sprayed
with six cans of chemical agents.

Id.

As a result of the attack, Plaintiff suffered a dislocated
shoulder, which later required two different medical procedures, a

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laceration on his lip, other minor abrasions on his body, and the
effects of chemical agents.
As

relief,

Plaintiff

seeks

a

declaratory

judgment,

compensatory damages totaling $800,000, punitive damages totaling
$300,000, and any other relief the Court deems appropriate. Id. at
15.
IV.
Defendant Bracy moves for summary judgment. “Summary judgment
is appropriate only if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Moton v. Cowart, 631 F.3d 1337, 1341

(11th Cir. 2011)(internal quotations and citations omitted).
also, Fed. R. Civ. P. 56(c)(2).

See

"The moving party may meet its

burden to show that there are no genuine issues of material fact by
demonstrating that there is a lack of evidence to support the
essential elements that the non-moving party must prove at trial."
Moton, 631 F.3d at 1341 (citing Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)).

The standard for creating a genuine dispute of

fact requires the court to “make all reasonable inferences in favor
of the party opposing summary judgment,” Chapman v. AI Transp., 229
F.3d 1012, 1023 (11th Cir. 2000)(en banc) (emphasis added), not to
make all possible inferences in the non-moving party’s favor.
To avoid the entry of summary judgment, a party faced with a
properly supported summary judgment motion “bears the burden of

-11-

persuasion” and must come forward with extrinsic evidence, i.e.,
affidavits,

depositions,

answers

to

interrogatories,

and/or

admissions, and “set forth specific facts showing that there is a
genuine issue for trial.”

Beard v. Banks, 548 U.S. 521, 529

(2006)(citations omitted); Celotex, 477 U.S. at 322; Hilburn v.
Murata Electronics North America, Inc., 181 F.3d 1220, 1225 (11th
Cir. 1999). If there is a conflict in the evidence, the non-moving
party’s evidence is to be believed and “all justifiable inferences”
must be drawn in favor of the non-moving party.

Beard, 548 U.S. at

529 (citations omitted); Shotz v. City of Plantation, Fl., 344 F.3d
1161, 1164 (11th Cir. 2003).

“A court need not permit a case to go

to a jury, however, when the inferences that are drawn from the
evidence, and upon which the non-movant relies, are ‘implausible.’”
Cuesta v. School Bd. of Miami-Dade County, 285 F.3d 962, 970 (11th
Cir. 2002) (citations omitted).

Nor are conclusory allegations

based on subjective beliefs sufficient to create a genuine issue of
material fact.

Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217

(11th Cir. 2000).

“When 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 (2007).

In

the summary judgment context, however, the Court must construe pro

-12-

se pleadings more liberally than those of a party represented by an
attorney.

Loren v. Sasser, 309 F.3d 1296, 1301 (11th Cir. 2002).

The Supreme Court made clear that “prison officials have a
duty . . . to protect prisoners from violence at the hands of other
prisoners.”

Farmer v. Brennan, 511 U.S. 825, 833 (1994).

Not

every injury that an inmate suffers at the hands of another inmate
“translates into a constitutional liability.” Id. at 834. Rather,
a violation of the Eighth Amendment occurs when a prison official
acts with deliberate indifference to a substantial risk of harm to
an inmate.

Id. at 828.

“Deliberate indifference is not the same

thing as negligence or carelessness.” Maldonado v. Snead, 168 Fed.
Appx. 373 (11th Cir. 2006)(citing Ray v. Foltz, 370 F.3d 1079, 1083
(11th Cir. 2004)). “Merely negligent failure to protect” an inmate
from an attack does not give rise to a § 1983 claim.

Carter v.

Galloway, 352 F.3d 1346, 1350 (11th Cir. 2003).
A plaintiff must demonstrate that the defendant was aware of
specific facts from which an inference could be drawn that a
substantial risk of serious harm exists and that the prison
official drew that inference.

Purcell v. Toombs County, GA., 400

F.3d 1313, 1319-20; Carter, 352 F.3d at 1349.

In other words, to

show that an official had subjective knowledge, the court is to
inquire whether the defendant was aware of a “particularized threat
or fear felt by [the plaintiff].”

Carter, 352 F.3d at 1350.

“An

official’s failure to alleviate a significant risk that he should

-13-

have perceived but did not, while no cause for commendation, cannot
. . . be condemned as the infliction of punishment” and does not
give rise to a constitutional violation.

Farmer, 511 U.S. at 838.

Whether an official had requisite knowledge is a question of fact
that may be demonstrated by circumstantial evidence.

Id. at 842.

Consequently, evidence of past attacks which were “long-standing,
pervasive, well-documented, or expressly noted by [ ] officials in
the past” may be sufficient to find that the official had actual
knowledge.

Id.

However, general knowledge that a particular

inmate is a problem inmate with a well-documented history of prison
disobedience who is prone to violence is not sufficient.

Carter,

352 F.3d at 1349.

See also McBride v. Rivers, 170 F. App’x 648

(11th Cir. 2006).

With these precedents in mind, the Court turns

to the Defendant’s Motion.
V.
Here, in support of his Motion for Summary Judgment, Defendant
Bracy contends that Plaintiff has not shown that Defendant Bracy
subjectively knew of a substantial risk of serious harm to the
Plaintiff,

or

that

Defendant

Bracy

knowingly

and

recklessly

disregarded that risk by failing to take reasonable measures to
abate it.

Id. at 6-8.

In the alternative, Defendant submits that

he is entitled to qualified immunity.

Id. at 8-9.

In Response, Plaintiff submits that he asked Defendant Bracy
to move him, or move inmate Coleman, approximately 30 minutes

-14-

before

the

incident

took

place.

Response

at

5.

Plaintiff

maintains that instead of moving Plaintiff, Bracy responded by
laughing, asked what is he afraid of, and walked away.

Id.

Plaintiff submits “it is a common practice for inmates to separate
the aluminum chain link ‘fence fabric’ with concrete floor to
attack another inmate at Charlotte C.I.”2

Response at 3, see also

Pl’s Exh. D at 6-25 (consisting of inmate declarations).
VI.
The record establishes the following undisputed facts, which
are construed in the light most favorable to Plaintiff. Before 9
a.m., on October 12, 2009, at Charlotte Correctional Institution,
the

aluminum

fence

between

Plaintiff’s

and

inmate

Coleman’s

recreation cages was separated and the two inmates engaged in a
physical altercation inside inmate Coleman’s cage resulting in
injuries to both inmates.
Response at 2.

Complaint at 11-13; Motion at 2;

Sergeant Gjerde was the officer who first spotted

the inmates fighting and responded to the scene.

Response at 2.

Additional correctional officers responded to the scene of the
fight at 8:48 a.m., upon the issuance of a “body alarm,” the
officers all witnessed Plaintiff on top of inmate Coleman, holding
a seven-inch shank, which was made from a piece of the aluminum

2

Plaintiff attempts to confuse the issue in this case by
referencing facts raised in a different prisoner civil rights case
he has pending before this Court alleging excessive-use-of-force by
a correctional officer while the correctional officer called
Plaintiff a “baby raper.” These two incidents are unrelated.
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fencing. Motion at 2 (citing Exh. A: 3-4, 10-11, 25-26, 27-28, 2930, 41; Exh. B; Exh. C; Exh. D; Exh. E; Exh. F; Exh. G); Complaint
at 12-13 (describing Plaintiff’s assault on inmate Coleman).
Officers Thomas, Gallagher, Whitt, and Bracy, and inmate Griffin
state that Plaintiff was trying to stab inmate Coleman with the
shank.

Motion

at

3

(citing

Exhs.

A-G);

Complaint

at

13

(acknowledging that the two inmates “wrestled” over the knife); see
generally Response (not disputing that Plaintiff attempted to stab
inmate Coleman with the shank).

Because the two inmates would not

stop fighting, the responding correctional officers used chemical
agents on Plaintiff and on inmate Coleman in an attempt to stop
them.

Motion at 3 (citing Exhs. A-G); Complaint at 13.

At 8:57

a.m., correctional officers handcuffed and escorted Plaintiff and
inmate Coleman to the showers to clean-off the chemical agents.
Id.

Officers then brought the inmates to the medical department

for their medical examinations.
Before

the

incident

Id.

transpired,

the

recreation

yard

was

“relatively quiet.” Motion at 3; see also Aff. Bracy, Exh. C at 2.
Plaintiff did not inform Defendant Bracy that inmate Coleman
threatened him, that he was in fear of inmate Coleman, or that a
fight was imminent.

Id., Complaint at 12 (alleging Plaintiff only

asked Bracy to move him to another cage); See generally Response.
Plaintiff does not allege, nor proffer any evidence that he and
inmate Coleman had a history of fighting.

-16-

The parties dispute whether Plaintiff asked to be moved to a
different cage. Defendant Bracy submits that Plaintiff never asked
to be moved to a different cage.

Motion at 3; Aff. Bracy, Exh. C

at 2. Plaintiff states that he asked several officers to move him,
including Defendant Bracy, and other inmates heard. Response at 2,
5; Decl. Knight, Pl’s Exh. D at 11.

The parties also dispute

whether it was Plaintiff, or inmate Coleman who was the attacker.
See Motion 7 (stating Plaintiff was the attacker).

Defendant

submits supporting evidence consisting of incident reports written
by several correctional officers on the day of the attack, Exh. A
at 3-4, 10-11, 25-26, 27-28, 29-30, and inmate Griffin’s statement
that he witnessed Plaintiff attack Coleman, Id. at 41.

An October

19, 2009 memo written by Lieutenant Retuer to Warden Henderson also
supports this position and states that Plaintiff separated the
fence to enter inmate Coleman’s cage.

Exh. A at 9. However,

Plaintiff claims that inmate Coleman was the attacker.
at 12.

Complaint

Plaintiff submits evidence supporting that Coleman was the

attacker,3 consisting of the declaration of inmate Marquis Jenkins,
who states that he watched the fight from inside the building by
looking through a window in his cell, and he saw Coleman pull

3

The Court notes that Plaintiff refers to himself as a
“detainee” of the Florida Department of Corrections.
In 2004,
Plaintiff was sentenced based on his conviction of lewd and
lascivious molestation of a victim under the age of 12.
See
www.dc.state.fl.us.
Plaintiff remains incarcerated on this
conviction. Therefore, Plaintiff is a prisoner, not a detainee.
-17-

Plaintiff through the hole into his cage. Decl. Jenkins, Pl’s Exh.
D at 13. Plaintiff also submits declarations from former and
current

inmates

recreation

yard

who
at

opine

that

Charlotte

aluminum fencing of the cages.

other

inmates

Correctional

by

fought

in

the

separating

the

See Decl. Knight, Pl’s Exh. D at

11-12; Decl. Horton, Id. at 18-19; Decl. Burroghs, Id. at 20-21,
Decl. Moore, Id. at 23; Decl. Dorsey, Id. at 24.
Nevertheless,

at

the

summary

judgment

stage

of

the

proceedings, the Court focuses on whether the record contains any
genuine issues of material fact based on the relevant case law.
Based on the record evidence, the Court finds that Defendant Bracy
is entitled to the entry of judgment in his favor as a matter of
law.
The record contains no evidence that Defendant Bracy was aware
of specific facts from which an inference could be drawn that a
substantial risk of serious harm existed between Plaintiff and
inmate Coleman. Plaintiff’s assertions that Defendant Bracy should
have assumed that Coleman was a risk to Plaintiff based on their
respective

classifications

statuses

is

insufficient

to

prove

deliberate indifferent in a failure to protect claim. See Lavendar
v. Kearney, 206 F. App’x 860, 863-64 (11th Cir. 2006)(affirming
grant of summary judgments to defendants because violent nature
without more specific information about a risk, does not constitute
deliberate indifference).

In the Complaint, Plaintiff alleges he

-18-

asked

Defendant

Complaint at 12.

Bracy

to

“replace

[him]

in

another

cage.”

Bracy maintains that Plaintiff never asked him

whether he could move to a different cage.

A fortiori, Bracy never

could have responded to Plaintiff’s question by laughing and asking
Plaintiff “what he’s [sic] afraid of?”
Giving Plaintiff the benefit, as the non-moving, party, that
he was not the “attacker” and did, in fact, ask Bracy to move him
to another cage, the record contains no evidence establishing that
Plaintiff communicated to Bracy why he wanted to move. Plaintiff’s
allegation that Bracy asked him why he was afraid is insufficient
to show that Bracy was aware of specific facts that a substantial
risk of serious harm existed to Plaintiff, let alone that inmate
Coleman intended to separate the fencing and attack Plaintiff. The
record contains no evidence showing that Plaintiff and Coleman had
a history of fighting, or that Plaintiff ever reported that inmate
Coleman

threatened

him,

or

that

Plaintiff

ever

directly

communicated to Bracy that he was in fear of inmate Coleman.4
Chatham v. Adcock, 334 F. App’x 281, 293 (11th Cir. 2009)(affirming
grant of summary judgment to defendants when inmate never told
officer that he was threatened by his cellmate). Thus, the record

4

In the Complaint, Plaintiff alleges that inmate Coleman is 7
foot, 3 inches tall. Complaint at 11. The Court takes judicial
notice of the Florida Department of Corrections website, wherein it
describes inmate Michael Coleman, #789018, as 6 foot, 8 inches
tall.
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contains no facts to support that Defendant Bracy was aware that
Plaintiff was in fear of inmate Coleman.
Because the record contains no evidence supporting that Bracy
knew Plaintiff was in fear, the record also does not show that
Bracy drew any inference that Plaintiff was at serious risk from
inmate Coleman.
construe,

or

It is too great of an assumption for the Court to

interpret,

that

Defendant

Bracy’s

laughter

and

question “what are you afraid of?” in response to Plaintiff’s
purported request to be moved implies that Defendant Bracy drew an
inference that Plaintiff was at serious risk from Coleman.

The

record evidence establishes that the recreation yard was relatively
quiet before the fight occurred.

The Court makes all reasonable

inferences, not all possible inferences.

Defendant Bracy submits

that he reasonably believed both inmates were safe because they
were locked in separate cages; the cages had concrete floors, and
were

enclosed

in

aluminum

fencing.

While

Plaintiff

submits

evidence that there have been at least three other incidents where
inmates have separated the fences in the recreation yard, the
record evidence shows that Plaintiff did not tell Bracy that inmate
Coleman was separating the fence between them.

Nor is there any

evidence that establishes that Bracy had any reason to know that
either

inmate

was

separating

the

fence.

Even

Plaintiff’s

declaration from inmate Jenkins, who was located inside the jail,
and allegedly saw inmate Coleman pull Plaintiff through the hole in

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the cage into his cage, does not state that he alerted prison
authorities that either inmate was separating the fence. The known
risk of injury must be a strong likelihood, rather than a mere
possibility,

before

a

guard’s

deliberate indifference.

failure

to

act

can

constitute

Brown v. Hughes, 894 F.2d 1533, 1537

(11th Cir. 1990)(internal citations and quotations omitted).
Therefore, the record contains no evidence establishing that Bracy
knew, or had any reason to know, that either inmate was separating
the fence in order to reach the other inmate to cause harm.
Plaintiff has not shown that a rational trier of fact would
determine that Defendant Bracy was deliberately indifferent to a
substantial risk of serious harm.
In the Complaint, Plaintiff claims that Defendant did not
“immediately” respond to Plaintiff’s pleas for help.
13.

Complaint at

Plaintiff, however, does not develop this allegation in the

summary judgment record.

The record shows that Officer Gjerde was

the first officer to respond and that Defendant Bracy responded,
along with other officers, after a “body alarm” was issued.
Similarly, Plaintiff does not take issue with the amount of force
used to stop the altercation. The record evidences that responding
officers only used the minimum amount of force necessary to gain
order in the recreation yard.
As a matter of law, the Court finds that the Defendant did not
violate Plaintiff’s Eighth Amendment rights.

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Because the Court

finds no constitutional violation, the Court need not address
Defendant’s argument that he is entitled to qualified immunity.
Based on the foregoing, the Court grants the Defendant’s Motion for
Summary Judgment.
ACCORDINGLY, it is hereby
ORDERED:
1. Defendant Bracy’s Motion to Sanction (Doc. #89) and Second
Motion to Sanction Plaintiff (Doc. #94) are GRANTED.

The Clerk of

Court is directed to strike Plaintiff’s Declaration of Officer
Snider (Doc. #88-4 at 17) and strike the Declaration of inmate
Coleman (Doc. #88-4 at 25-27).
2.

Plaintiff knowingly, or with reckless disregard for the

truth, brought false information or evidence before this Court.
The

Court

strongly

recommends

that

Plaintiff

be

subject

to

disciplinary procedures pursuant to the rules of the Department of
Corrections.
to

the

The Clerk shall mail a certified copy of this Order

Warden

at

Florida

State

Prison

so

that

disciplinary

procedures pursuant to the rules of the Department of Corrections,
as provided in § 944.09, Fla. Stat., may be instituted.
3.

The Court construes Plaintiff’s Motion to Sanction (Doc.

#95) to be Plaintiff’s response to Defendant’s second motion to
sanction.

Plaintiff’s Motion to Sanction is DENIED, as it is

without merit.

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4.

Defendant Bracy’s Motion for Summary Judgment (Doc. #62)

is GRANTED.

The Complaint is dismissed with prejudice as to

Defendant Bracy.
5.

The Clerk of Court shall enter judgment accordingly and

close this case.
6. Defendant Hemphill’s motion for reconsideration (Doc. #90)
shall remain pending.
DONE AND ORDERED at Fort Myers, Florida, on this 9th day of
September, 2011.

SA: alj
Copies: All Parties of Record

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