Brazill v. Cowart et al

Filing 87

OPINION AND ORDER denying 71 Motion for summary judgment. Signed by Judge John E. Steele on 6/14/2013. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
NATHANIEL R. BRAZILL,
Plaintiff,
vs.

Case No.

BETH E.
PARKER,

COWART,

G.

MORRIS,

2:10-cv-458-FtM-29DNF

S.

Defendants.
________________________________
OPINION AND ORDER
I.

Status

This matter comes before the Court upon review of the Motion
for

Summary

Judgment

(Doc.

#71,

Motion)

filed

on

behalf

of

Defendants B. Cowart, G. Morris, and S. Parker and supporting
exhibits (Doc. #71-1, Exhs. AG 001 to AG 037-2) including inter
alia:

memoranda

and

forms

approving

Plaintiff’s

institutional

transfers; copies of Plaintiff’s inmate grievances and responses
thereto;

daily

logs

concerning

Plaintiff’s

placement

on

administrative confinement; and, affidavits from Glenn Morris,
Steven Parker, and Bethyl Elaine Cowart.
several

enlargements

opposition

to

of

time,

Defendants’

Plaintiff

Motion

(Doc.

After being granted
filed
#84,

a

response

Response)

in
and

supporting exhibits (Doc. #84-1-#84-10, Exhs. A-J), including:
interrogatory responses from Defendants Cowart, Morris, and Parker;
a copy of the June 2009 clothing policy issued by Defendant Cowart
that formed the basis for Plaintiff’s 2009 state civil rights

action filed in the Second Judicial Circuit Court in Leon County,
Florida; copies of certain policies promulgated by the Florida
Department of Corrections; and, his own affidavit.

This matter is

ripe for review.
II. Background
Plaintiff Nathaniel Brazill, an inmate in the custody of the
Secretary of the Florida Department of Corrections, initiated this
action by filing a pro se Civil Rights Complaint (Doc. #1) pursuant
to 42 U.S.C. § 1983.

Plaintiff is now proceeding on his Amended

Complaint (Doc. #21, Amended Complaint) against Defendants in their
official and individual capacities, alleging a First Amendment
retaliation
occasions

to

claim

stemming

different

from

Plaintiff’s

institutions

within

transfer
the

on

Department

two
of

Corrections and his placement in administrative confinement on two
occasions allegedly in retaliation for filing a state civil rights
action in the Leon County Circuit Court, challenging Defendant
Cowart’s dress code policy.
see also Pl’s Exh. F.

See generally Amended Complaint;

At the time the incidents began, Beth Cowart

was the Chief of Security at Desoto Correctional Institution, but
was later promoted to Assistant Warden at Okeechobee Correctional.
Amended Complaint at 2-3.

Defendants Morris and Parker were

Regional State Classification Officers.

Motion at 7-8, 18.

On August 1, 2011, Defendant Cowart, the only defendant who
had received service of process, filed a motion to dismiss (Doc

-2-

#25). The Court entered an Order denying Defendant Cowart’s motion
to dismiss, but sua sponte dismissed Defendant Holmes on the basis
that the Amended Complaint did not contain sufficient factual
allegations establishing a causal connection between Defendant
Holmes

and

Plaintiff’s

administrative confinement.

alleged

retaliatory

transfers,

or

See Opinion and Order, Doc. #27.

The

Court noted that by separate order the United States Marshal would
be directed to effect service on Defendants Morris, Parker, and
Lawson.

Service of process was executed on the Defendants Morris

and Parker, but not on “J. Lawson.”

See generally docket; Doc. #80

(noting no person by the name “J. Lawson” ever worked at Hardee
Correctional Institution).1

After giving Plaintiff sufficient

notice, on April 9, 2013, the Court sua sponte dismissed Defendant
Lawson pursuant to Fed. R. Civ. P. 4(m).

See Doc. #80.

After a

lengthy period of discovery, Defendants filed the instant Motion.
Upon review of the record and applicable case law, the Court denies
Defendants’ Motion.

1

It appears that the United States Marshal’s Office was
provided incorrect information about Defendant J. Lawson, which
the Marshal forwarded the Court. Contrary to the April 9, 2013
Order noting that no J. Lawson ever worked at Hardee Correctional,
the exhibits Defendants attach in support of their Motion clearly
indicate that a Colonel “J. Lawson” at Hardee Correctional approved
Plaintiff’s placement in administrative confinement. Thus, while
J. Lawson may no longer be employed at Hardee Correctional, a J.
Lawson did at one time work at Hardee Correctional. Considering
the April 9 Order contained this misinformation, the Court will
vacate its April 9, 2013 Order dismissing Lawson pursuant to Fed.
R. Civ. P. 4(m) by separate order.
-3-

III. Material Facts
Plaintiff initiated a state civil rights action on September
11, 2009, in the Second Judicial Circuit Court in Leon County,
Florida, against Ronald Holmes, Beth Cowart, and Jose M. Rios, in
their official and individual capacities.

Pl’s Exh. F.

parties received service of process in October of 2009.

The

Id.

It

is undisputed that approximately one month later, on November 5,
2009, a memorandum promulgated by Classification Officer Primus to
the

Institutional

Plaintiff’s

Classification

transfer

to

Team

Okeechobee

(“ICT”)

Correctional

recommended
or

Hendry

Correctional based on his “pending litigation against numerous
staff” at DeSoto Correctional. AG. Exh.

001. The memorandum went

to the ICT, which was compromised of Edwards, Holmes, and Reed, and
the ICT approved Plaintiff’s transfer “for the security of the
institution.”

Exh. AG 2; see also Exh. AG 3.

Thereafter,

Defendant Morris, the State Classification Officer, approved the
transfer.

Defendant Morris’s notes indicate: “TRANSFER APPROVED

FOR OKEECHOBEE CI WITH ALTERNATE TO HENDRY CI. FOR THE SAFETY OF
INMATE BRAZILL AND FOR THE SECURITY OF THE INSTITUTION AS INMATE
BRAZILL APPARENTLY HAS PENDING LITIGATION AGAINST STAFF AT DESOTO
ANNEX AND THUS TO AVOID ANY CONFLICT INMATE IS APPROVED FOR
TRANSFER.”

Exh. AG 2.

Plaintiff was transferred on December 2,

2009, from Desoto Correctional to Okeechobee Correctional.
it

is

undisputed

that

Defendant

-4-

Morris

approved

Thus,

Plaintiff’s

transfer in light of “pending litigation” for the “security” of the
institution.
Facts

remain

in

dispute

regarding

Defendant

Cowart’s

involvement, or lack thereof, in Plaintiff’s December 2, 2009
transfer.

Defendant Cowart submits that she had no involvement in

Plaintiff’s transfer.

Motion at 7-8; Exh. AG at 37, Cowart Aff.

Plaintiff submits evidence showing that Defendant Cowart initiated
discussions with Assistant Warden Holmes about “what could be
[done]” because Plaintiff “had filed suit against the entire
administrative staff” “so that every security discussion [sic] not
be construed as retaliation.”
It

is

undisputed

that

Pl’s Exh. A at 2, ¶2.
pursuant

to

Defendant

Cowart’s

directive, Plaintiff was placed on administrative confinement2 at
DeSoto Correctional on November 5, 2009.
006, AG Exh. 008-3.

AG Exh. 005-2, AG Exh.

The reason(s) behind Plaintiff’s placement in

administrative confinement are disputed. Plaintiff alleges that he
was placed in confinement by Defendant Cowart in retaliation for
the filing of the civil lawsuit in the Leon County Circuit Court.
See

generally

Amended

Complaint;

Pl’s

Exh.

J,

Aff.

Brazill.

Plaintiff avers he was told that he was placed in administrative
confinement because he was “under investigation.” Id.; see also

2

Plaintiff submits that placement in administrative confinement
results in the deprivation of the following privileges: visitation,
telephone, radio, television, canteen, recreation, dayroom, and a
daily shower.
-5-

Exh. AG 006. Defendant Cowart submits that Plaintiff was placed in
administrative confinement pursuant to protocol pending an inmate’s
transfer.

Motion at 11; see also Exh. AG 37-1, Aff. Cowart.

Plaintiff, however, points out that when he was transferred from
Okeechobee, he was not placed in administrative confinement pending
his transfer.

Response at 8 (citing Pl’s Exh. J, Aff. Brazill at

¶14)
It is undisputed that Plaintiff remained in administrative
confinement upon his transfer to Okeechobee through the Christmas
and New Years holidays until January 13, 2010, for a total of
twenty-seven days.
officials

at

Exh. AG at 23-1 (daily log).

Okeechobee

Correctional

continued

Correctional
Plaintiff’s

placement in administrative confinement apparently because that was
his status when he was transferred from Desoto Correctional.

Id.

(noting that Okeechobee “gained inmate into AC confinement per
OJC.”).
On July 22, 2010, Defendant Cowart accepted a position at
Okeechobee Correctional.

Amended Complaint at 7;

Aff. Brazill at ¶13; Motion at 14.

Pl’s Exh. J,

On August 3, 2010, Plaintiff

was transferred from Okeechobee to Hardee Correctional.

Defendant

Parker acknowledges that he approved the ICT’s recommendation that
Plaintiff be transferred to Hardee “due to the special review.”
Exh. AG 36-1.

Plaintiff maintains that he was transferred from

Okeechobee in retaliation for the lawsuit he previously filed

-6-

against

Defendant

Cowart

transferred to Okeechobee.

because

her

employment

position

was

A form dated July 23, 2010, concerning

Plaintiff’s transfer from Okeechobee to Hardee Correctional states:
I/M BRAZILL, NATHANIEL [] WAS SPECIAL REVIEWED FROM THE
STAFF AT DESOTO CI ON 5/27/10. MS. BETH COWART WAS THE
COLONEL AT DESOTO CI DURING THIS SPECIAL REVIEW & HAS
BEEN PROMOTED TO ASSISTANT WARDEN AT OKEECHOBEE C.I. IT
IS RECOMMENDED THAT INMATE BRAZILL BE SPECIAL REVIEWED
TRANSFERRED FROM OKEECHOBEE CI. []
THE [ICT] TEAM RECOMMENDS A SPECIAL REVIEW TRANSFER BASED
ON A SPECIAL REVIEW APPROVED BY THE [STATE CLASSIFICATION
OFFICER] ON [ASSISTANT WARDEN OKEECHOBEE] B. COWART
ST TRANSFER APPROVED. . . . .
Exh. AG 25.

Defendant Cowart submits that she did not have any

role in Plaintiff’s transfer from Okeechobee.

Motion at 13-14.

Plaintiff, however, refers to Cowart’s interrogatory response in
which

Cowart

states

that

when

she

learned

Plaintiff

was

incarcerated at Okeechobee, she told the warden that Plaintiff was
“special reviewed” against her.

Response at 12 (citing Pl’s Exh.

A at 4-5) and Motion at 15 (response to inmate grievance saying
“circumstances of your lawsuit so serious that a special review was
completed” and Plaintiff was placed in confinement for Cowart’s
security, as well as his own); but see Motion at 17 (stating
“special review is not directed against any named individual but
rather the entire Desoto C.I. itself, its Work Camp, Arcadia Road
Prison and future Main Unit.”).
On January 3, 2011, while incarcerated at Hardee Correctional,
“J. Lawson” authorized Plaintiff’s placement in administrative
-7-

confinement. Exh. AG 029. Plaintiff remained in confinement until
January 6, 2011.

Exh. AG 32-1 to 32-2. Plaintiff was placed in

administrative confinement because Defendant Cowart was visiting
Hardee Correctional.

Exh. AG at 33.

A response to one of

Plaintiff’s inmate grievances explains that he was placed in
administrative

confinement

while

Cowart

was

visiting

Correctional “for her safety as well as your own.”
these

facts,

Plaintiff

maintains

that

he

Id.

was

Hardee

Disputing
placed

in

administrative confinement in retaliation for filing the civil
lawsuit in Leon County circuit court.

Plaintiff further submits

that Defendants have done nothing to explain the safety concerns
underlying Plaintiff’s placement in administrative confinement.
IV. Applicable Law
A.

Standard of Review

“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).

See also, Fed. R. Civ. P. 56(c)(2).

"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)).

-8-

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
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 Elecs. N. Am., 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

-9-

(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).

To state a claim under 42 U.S.C. § 1983, a plaintiff must
allege: (1) defendants deprived him of a right secured under the
United States Constitution or federal law, and (2) such deprivation
occurred under color of state law.

Arrington v. Cobb County, 139

F.3d 865, 872 (11th Cir. 1998); U.S. Steel, LLC v. Tieco, Inc., 261
F.3d 1275, 1288 (11th Cir. 2001).

In addition, a plaintiff must

allege and establish an affirmative causal connection between the
defendant’s conduct and the constitutional deprivation. Marsh, 268
F.3d at 1059; Swint v. City of Wadley, 51 F.3d 988 (11th Cir.
1995); Tittle v. Jefferson County Comm’n, 10 F.3d 1535, 1541 n.1
(11th Cir. 1994).

A defendant who occupies a supervisory position

may not be held liable under a theory of respondeat superior in a
§ 1983 action.

Monell v. Dep’t of Soc. Serv., 436 U.S. 658, 690-

692 (1978); Quinn v. Monroe County, 330 F.3d 1320, 1325 (11th Cir.
2003); Farrow v. West, 320 F.3d 1235 (11th Cir. 2003).
B. First Amendment
Prison officials may not retaliate against inmates for filing
lawsuits or administrative grievances. Wright v. Newsome, 795 F.2d
964, 968 (11th Cir. 1968)(per curiam).

-10-

While an inmate does not

have a constitutionally protected liberty interest against being
transferred to a less agreeable prison, Moody v. Daggett, 429 U.S.
78, 99 (1976), prison officials may not transfer an inmate in
retaliation for exercising his right to file grievances against
prison officials.
Cir. 1985).

Bridges v. Russell, 757 F.2d 1155, 1157 (11th

Such retaliatory transfers violate an inmate’s First

Amendment rights.

Wildberger v. Bracknell, 869 F.2d 1467, 1468

(11th Cir. 1989).

To prevail on a retaliation claim, the inmate

must establish that: (1) his speech was constitutionally protected;
(2)

the

inmate

suffered

adverse

action

such

that

official’s

allegedly retaliatory conduct would likely deter a person of
ordinary firmness from engaging in such speech; and (3) there is a
causal

relationship

protected speech.

between

the

retaliatory

action

and

the

O’Bryant v. Finch, 637 F.2d 1207, 1212 (11th

Cir. 2011)(internal quotations omitted); Moton v. Cowart, 631 F.3d
1337, 1341-42 (11th Cir. 2011).

“To establish causation, the

plaintiff must show that the defendant was ‘subjectively motivated
to discipline’ the plaintiff for exercising his First Amendment
rights.”

Moton, 631 F.3d at 1341 (quoting Smith v. Mosley, 532

F.3d 1270, 1278 (11th Cir. 2008)).

“The defendant can prevail on

summary judgment if it can show it would have taken the same action
in the absence of the protected activity.”

Smith v. Fla. Dep’t of

Corr., ____ F.3d _____, 2013 WL 1346779 (11th Cir. 2013)(citing
Mosley, 532 F.3d at 1278).

-11-

V.
A.

Discussion

First Amendment Retaliation Claims

Defendants do not dispute that Plaintiff’s filing of a civil
case in the Leon County Circuit Court constitutes protected conduct
under the First Amendment.

Motion at 1.

This Court agrees.

The

record also confirms that Plaintiff suffered adverse consequences:
he was transferred on two occasions to correctional facilities
located further away from his family; and, on two occasions placed
in administrative confinement instead of general population, one
time for twenty-seven days that coincided with the Christmas and
New Years holidays and another time for three days that coincided
with Cowart’s visit at the particular correctional facility.

The

Court finds these incidents would deter a person of ordinary
firmness
Bennett

from
v.

exercising

Hendrix,

423

his

or

F.3d

her

1247,

First
1254

Amendment
(11th

Cir.

rights.
2005).

Questions of material fact remain as to causal connection between
Plaintiff filing the civil action and these adverse consequences.
In

support

placement

in

of

Plaintiff’s

administrative

claim

that

confinement

his

were

transfers

retaliatory,

and
he

submits his affidavit, answers to interrogatories, and refers to
several internal memoranda and forms approving his transfer and
administrative confinement, as set forth above, which indicate that
the impetus behind his transfer and placement in administrative
confinement was his civil action filed in the Leon County Circuit

-12-

Court.

Viewing the evidence in the light most favorable to

Plaintiff, he has sufficiently established that a reasonable jury
could conclude that his civil action in Leon County was the
motivating

factor

behind

his

transfers

and

administrative confinement on two occasions.

placement

in

Not only does the

record contain sufficient facts of personal participation as to
each Defendant, but the record contains a question of material fact
as to whether the Florida Department of Corrections had adopted a
policy or procedure allowing for inmates to be transferred from
their current place of incarceration when they filed lawsuits
against correctional officials from that institution.
Defendants point to their own affidavits and some of the same
internal memoranda and forms approving Plaintiff’s transfers on
December

2,

2009,

and

August

3,

2010,

and

his

placement

on

administrative confinement on November 5, 2009, and January 3,
2011,

arguing

that

Plaintiff

was

transferred

and

held

in

confinement because of “security concerns.” Defendants also submit
that Defendant Cowart had no role in approving either transfer, or
Plaintiff’s placement in administrative confinement on January 3,
2011.

With regard to Plaintiff’s placement in administrative

confinement at Desoto Correctional on November 5, 209, Cowart
argues that she was merely following protocol pending Plaintiff’s
transfer.

Viewing the evidence in the light most favorable to

Plaintiff,

a

reasonably

jury

could

-13-

conclude

that

Cowart

was

involved in Plaintiff’s transfers, because after learning about
Plaintiff’s lawsuit she acknowledges she went to Assistant Warden
Holmes to see “what could be done” since Plaintiff filed a lawsuit
against

herself,

Holmes,

and

correctional

officer

Rios.

Significantly, Defendants failed to show that Plaintiff would have
been transferred or held in administrative confinement in the
absence of filing the civil case in the Leon County Circuit Court.
Consequently, the Court denies Defendants’ Motion.
B.

Monetary Damages

Defendants submit that the Court has already held that the
Eleventh Amendment bars monetary damages against Defendants in
their official capacities.
Defendants

argue

that

Motion at 20 (citing Doc. #38 at 2).

Plaintiff’s

requested

relief

against

Defendants in their official capacities “lacks legal support.” Id.
Defendants further argue that Plaintiff is only entitled to nominal
damages in this case.

Id. at 21.

Defendants point out that

Plaintiff previously conceded that he did not adequately state a
claim for punitive damages.

Id.

11).

argue

Defendants

further

(citing Doc. 27 at 5; Doc. #22 at
that

Plaintiff’s

request

for

compensatory damages for the loss of his filing fee in the State
court is not properly before this Court.
In Response, Plaintiff notes that the Court has previously
held that Plaintiff’s request for declaratory or injunctive relief
against the Defendants in their official capacity is not barred by

-14-

the Eleventh Amendment.

Response at 25 (citing Doc. #38 at 2).

Plaintiff argues that the Eleventh Amendment does not prohibit
monetary relief, including costs, ancillary to the prospective
injunctive relief.

Id. at 24-25.

With regard to a request for

punitive damages, Plaintiff states that the Court did not dismiss
his claim for punitive damages and granted him leave to supplement
his Amended Complaint to state a claim for punitive damages.
(citing Doc. #61).

Id.

With regard to compensatory damages, Plaintiff

argues that a jury could reasonably conclude that his loss of the
filing

fee

and

processor

server

fee

is

an

injury

directly

attributable to Defendants’ violation of his First Amendment right
because his State action was dismissed as moot due to Plaintiff no
longer being incarcerated at Desoto Correctional.

Id. at 26.

The Amended Complaint seeks “any relief deemed just and proper
by the Court,” and specifically seeks declaratory relief, and
nominal and punitive damages.
Court

previously

include

a

Plaintiff’s

granted

claim
request

of

Amended Complaint at 35-36.

Plaintiff’s

compensatory

for

“any

relief

motion
damages,
deemed

includes a request for compensatory damages.

to

The

supplement

explaining
just

and

to

that

proper”

See Doc. #61; see

also Williams v. Brown, 342 F. App’x 429, 436 (11th Cir. 2009)(the
court must liberally construe requests for damages in pro se
complaints).

The Court also previously construed the Amended

Complaint to seek a request for injunctive relief, i.e. no further

-15-

transfers or detentions in confinement when Defendant Cowart is
present at

Plaintiff’s

place

of

confinement.

See

Doc.

#38.

Plaintiff may seek monetary damages against Defendants in their
individual

capacities,

punitive damages.
(1985).

including

nominal,

compensatory,

and

See generally Kentucky v. Graham, 473 U.S. 159

Whether Plaintiff is entitled to punitive damages is a

question for the jury.

Smith v. Wade, 461 U.S. 30 (1983)(a jury

will be permitted to award punitive damages upon a showing of
reckless or callous indifference to federally protected rights, as
well as when motived by evil motive or intent); Fields v. Corizon
Health, Inc., 490 F. App’x 174, 186 (11th Cir. 2012)(discussing
jury instruction on punitive damages).

Consequently, Defendants

request that the Court deny Plaintiff’s request for nominal,
compensatory, and punitive damages is denied.
ACCORDINGLY, it is hereby
ORDERED:
Defendants’ Motion for Summary Judgment (Doc. #71) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, on this
of June, 2013.

SA: alj
Copies: All Parties of Record

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14th

day