Garcia v. Austin et al
Filing
139
OPINION AND ORDER denying 134 Motion explaining why it appears plaintiff is delaying litigation, deemed to include a motion to appoint counsel; striking [118-1] second response; granting 87 Motion for summary judgment; granting 88 Motion for summary judgment. The Clerk shall enter judgment in favor of defendants Austin, Anthony, Bostic, and Wilson, and plaintiff shall take nothing. The Clerk shall further terminate all deadlines and motions and close the case. Signed by Judge John E. Steele on 1/23/2014. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
OSCAR GARCIA,
Plaintiff,
vs.
Case No.
2:11-cv-56-FtM-29DNF
LIEUTENANT
AUSTIN;
CORRECTIONAL
OFFICER WILSON; CORRECTIONAL OFFICER
ANTHONY;
CORRECTIONAL
OFFICER
BOSTIC,
Defendants.
________________________________
OPINION AND ORDER
I.
This
respective
matter
comes
motions
for
Status
before
the
summary
Court
judgment
upon
filed
review
on
of
behalf
the
of
Defendants Anthony, Austin, and Bostic (Doc. #87, hereinafter
“Motion”) and Wilson (Doc. #88, “Wilson Motion”) filed on April 16,
2013.
Defendants refer to the following exhibits (Doc. #87-1,
Defs’ Exhs. A-O) in support of their motions: Use of Force Report
log number 2008-510-0065 (Exh. A); Disciplinary Report Conviction
log number 510-080860 (Exh. B); Declaration of Michael Anthony
(Exh. C); Declaration of Rollin Austin (Exh. D); Inspector General
Report numbers 08-5-1381 and 2008-510-0065 (Exh. E); Declaration of
Dean Glisson (Exh. F); Incident report of Michael Anthony (Exh. G);
Daily
Security
Roster
for
March
29,
2008,
second
shift
(redacted)(Exh. H); Incident report of Rollin Austin (Exh. I);
Florida Administrative Code 33-602.201 (Exh. J); Plaintiff’s Post
Use of Force Medical Examination Report dated March 29, 2008 (Exh.
K); Declaration of Doctor Robert Hemphill (Exh. L); Declaration of
Denetrice Bostic (Exh. M); copies of Plaintiff’s relevant medical
records (Exh. N); and, Excerpts of Plaintiff’s deposition (Exh.
O).1
Plaintiff was warned about the provisions of Fed. R. Civ. P.
56 and given numerous enlargements of time to file a response to
Defendants’ motions for summary judgment. See docket.
Plaintiff
filed his Response (Doc. #112, Response) on October 7, 2013.2
See docket.
Plaintiff’s Response includes within it his his sworn
declaration. Response at 1-2. Contrary to the Court’s admonitions,
Plaintiff did not attach any other exhibits in support of his
Response, nor did he move for permission to supplement his response
1
Defendants’ exhibits were actually submitted with the
Motion filed on behalf of Defendants Anthony, Bostic, and
Austin.
See Motion.
Defendant Wilson incorporates by
reference these exhibits. See Wilson Motion at 3, n.2.
2
Plaintiff’s initial response to Defendants’ motion for
summary judgment was date stamped by prison officials on October 7,
2013 (Doc. #112), filed by the Clerk on October 15, 2013, and was
fifteen pages in length.
The response did not include any
supporting exhibits. Plaintiff later re-filed his response (Doc.
#118-1), accompanied by a notice (Doc. #118), with the same October
7, 2013 date stamp (Doc. #118-1), filed by the Clerk on October 28,
2013, but was sixteen pages in length because it included an inmate
grievance concerning when Plaintiff’s previous response was date
stamped due to a lock down at the institution. This sole exhibit
did not support Plaintiff’s response opposing Defendants’ motions
for summary judgment. The Court deems Plaintiff’s first response
(Doc. #112) the operative response and directs the Clerk to strike
Plaintiff’s subsequent response (Doc. #118).
-2-
with any declarations
from inmate witnesses.
See docket.3
On
3
There is a lengthy procedural history that occurred prior to
Plaintiff filing his October 7, 2013 response to Defendants’
motions for summary judgment.
See Doc. #111; Doc. #124.
Defendants filed their respective motions for summary judgment on
April 16, 2013. Plaintiff’s response was due within twenty-one
days. See Doc. #32 at 3. Plaintiff filed a motion for enlargement
of time to file a response on May 22, 2013. On June 10, 2013, the
Court granted Plaintiff’s enlargement of time and allowed Plaintiff
an additional sixty days to file a response to Defendants’ motions.
See Doc. #95. Plaintiff filed another motion for an enlargement of
time on August 5, 2013.
The Court again granted Plaintiff’s
motion, setting the deadline for Plaintiff’s response as October 5,
2013. See Doc. #103; see also Doc. #107 (explaining October 5,
2013 falls on a Saturday, so the deadline for Plaintiff’s response
is October 7, 2013). The Court warned Plaintiff that this was his
“final enlargement of time.” Id. at 3 (emphasis in original).
On September 16, 2013, despite the discovery deadline expiring
in January of 2013, Plaintiff filed a motion for court assistance
to locate three inmate witnesses.
See Doc. #107.
Plaintiff
claimed that he was not provided the opportunity to contact
potential inmate witnesses.
The Department did not object to
Plaintiff following the rules implemented by the Department for
inmate litigants wishing to contact other inmate witnesses.
See Doc. #105. Despite the discovery deadline’s expiration some
nine months before, the Court granted Plaintiff’s motion for
assistance to ensure he had an adequate opportunity to obtain
declarations from other inmates he identified as witnesses. See id.
Despite the Department’s established protocol for inmate litigants
to contact other inmates, see Doc. #105, to expedite the case the
Court directed the Department of Corrections to assist Plaintiff in
locating his three identified inmate witnesses. See Doc. #107.
The Department eventually complied. See Doc. #124 (order to show
cause), Doc. #126 (response to show cause order stating that inmate
Bryant Mooreland is no longer an inmate with the Department of
Corrections, that inmate Johnny Rodriquez did complete a
declaration and that it was mailed to Plaintiff, and that inmate
Jackson did not wish to complete a declaration). As an aside,
Plaintiff apparently did not understand that the Court reopened
discovery only for the limited purposes of ensuring he was able to
contact the three identified inmate witnesses and tried to gather
additional discovery from Defendants. See Doc. #134.
Due to a short delay in obtaining the inmate declarations, the
(continued...)
-3-
December 20, 2013, Defendants filed briefs in Reply (Doc. #137,
#138) with the Court’s permission. This matter is ripe for review.
3
(...continued)
Court again enlarged Plaintiff’s deadline to file a motion to
supplement his response and specifically told Plaintiff he had to
file a motion to supplement his response to include any inmate
witness declarations on or before December 6, 2013. See Doc. #124.
Despite Plaintiff receiving an inmate declaration from Johnny
Rodriquez on or about November 7, 2013, Plaintiff did not move to
supplement his response to include this declaration by the Court’s
December 6, 2013 deadline. See docket. Instead, Plaintiff filed a
“motion explaining why it appears Plaintiff is delaying legal
litigation with the Defendants” (Doc. #134), bearing a prison date
stamp of December 5, 2013, and filed by the Clerk on December 9,
2013. Defendants filed responses opposing the motion (Docs. #135,
#136) on December 16, 2013.
Plaintiff filed the instant motion approximately two months
after he filed his response to Defendants’ motions for summary
judgment and submits that he had difficulties accessing legal
materials and the inmate law clerk who was assisting him with
typing went to confinement, inter alia.
It appears Plaintiff
believes he needed access to the law library and/or a law clerk who
could help him with typing before he moved to supplement his
response with the inmate declarations discussed at length herein.
The Court is cognizant of delays prisoner litigants face when
litigating a case and has granted Plaintiff generous enlargements
of time, even reopening a discovery deadline that was 9 months
expired to allow Plaintiff to gather declarations from inmates he
identified as witnesses, albeit one inmate was no longer an inmate
and only one inmate wished to provide Plaintiff with a declaration.
Neither access to the law library nor a computer was necessary to
timely file a motion to supplement his response to include the
inmate declaration from Johnny Rodriquez, which he received on or
about November 7, 2013, by the December 6, 2013 deadline.
Plaintiff was able to file the instant typed motion instead of
filing a motion to supplement and/or file the inmate declaration.
Thus, Plaintiff’s motion to the extent it can be construed as a
motion for an enlargement of time to supplement the response to
include the declaration of inmate Rodriquez is denied.
To the
extent the motion can be construed as seeking appointment of
counsel, the Court stands by its decisions denying appointment of
counsel. See Docs. #28, #82, #84, #86, #105, #117, #124, #126.
-4-
II.
Background
Oscar Garcia, an inmate in the custody of the Secretary of the
Florida Department of Corrections, initiated this action pro se by
filing a Civil Rights Complaint (Doc. #1) pursuant to 42 U.S.C §
1983 in the United States District Court for the Southern District
of Florida on August 17, 2010.
On February 7, 2011, the Southern
District transferred the action to this Court because the cause of
action
arose
while
Plaintiff
Correctional Institution.
Complaint
(Doc.
#6,
was
incarcerated
at
Charlotte
Plaintiff is proceeding on his Amended
Amended
Complaint),
which
includes
as
attachments various inmate grievances he filed during the year 2010
and responses thereto.
Service of process was never executed on Defendant Hoopes, a
correctional
See
docket.
officer
On
at
April
Charlotte
24,
2012,
Correctional
after
Institution.
sufficient
notice
to
Plaintiff, the Court entered an Order dismissing Defendant Hoopes
pursuant to Fed. R. Civ. P. 4(m).
See Doc. #62.
Defendants filed motions to dismiss.
September
10,
2012,
the
Court
The remaining
See Docs. #49, #58.
entered
an
order
(Doc.
On
#70,
hereinafter “Order”) denying the motions to dismiss filed on behalf
of Defendants Bostic, Anthony, Austin and Wilson, except that
defendants’ motion was granted as to the failure to intervene claim
against Defendant Bostic.
See Order.
-5-
Plaintiff is proceeding in this action against the following
Defendants
from
Charlotte
Correctional
Institution
in
their
individual4 capacities: Rollins Austin, a Lieutenant at the time
the cause of action arose; Michael Anthony, an escort officer;
Denetrice Bostic, a medical escort officer; and, Wilson, a housing
officer.
See generally Defs’ Exhs A-O.
Plaintiff alleges he was
subjected to cruel and unusual punishment in violation of the
Eighth
Amendment
Amendment.
and
retaliation
in
violation
of
the
First
Plaintiff’s claims stem from an alleged excessive use
of force that occurred after lunch on March 29, 2008 involving
Defendants Wilson, Anthony, and Austin, and again on March 31, 2008
involving
only
Defendant
Austin
and
tangentially
involving
Defendant Bostic, who allegedly failed to protect Plaintiff.
Amended Complaint; see also Order.
allegedly
occurred
on
March
30,
See
The incidents of retaliation
2008,
when
Defendant
Wilson
threatened Plaintiff if he “told” on the officers about the March
29 use of force.
Id.
As relief, Plaintiff seeks monetary damages,
waiver of all liens placed on his inmate account by the Department
of Corrections, and reimbursement for the costs of litigation.
4
Defendants submit that Plaintiff does not specify whether he
sues defendants in either their individual or official capacities,
or both. See Motion at 2; Wilson Motion at 1-2. The Court’s Order
(Doc. #70) denying defendants’ motions to dismiss stated that the
record showed that Plaintiff intended to sue defendants in only
their individual capacities.
See Order at 2 (citing Amended
Complaint and Response (Doc. #69 at 9)(Plaintiff clarifying that
all defendants are named in their individual capacities only).
-6-
III.
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)).
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).
-7-
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).
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
-8-
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).
IV. Disputed and Undisputed Facts
A. March 29, 2008 Incident: Defendants Anthony, Wilson, and
Austin
The record sets forth the following undisputed and disputed
facts, which are construed in the light most favorable to the
Plaintiff.
On March 9, 2008, at around 12:50 p.m. Correctional
Officer Hoopes ordered the last inmates to leave food services,
including
services.
Plaintiff,
clean
Defs’ Exhs. C-D.
clean the area.
Id.
Defs’ Exhs. A-B.
but
to
Plaintiff
up
the
trash
outside
of
food
Inmates do not like to be told to
Plaintiff became angry and uncooperative.
Hoopes ordered Plaintiff to continue to clean,
refused.
Hoopes
tried
to
put
restraints
Plaintiff, but he refused and lunged towards Hoopes.
on
Plaintiff
disputes these facts in his declaration and claims he complied with
all of Hoopes’ directives.
disciplinary
report
log
Response at 3.
number
-9-
510-080860
Plaintiff received a
charging
him
with
attempted assault on a correctional officer.7
Exh. B.
The
disciplinary committee found Plaintiff guilty of this disciplinary
report and imposed a 128-day loss of gain time and 60-days of
disciplinary confinement.
Id. at 5.
The disciplinary conviction
remains valid and has not invalidated, overturned, or otherwise
expunged.
Exh. B.
It is undisputed that Hoopes took Plaintiff down to the floor,
face first and restrained him there until other correctional
7
Disciplinary report log number 510-080860 stated:
On 3/29/08 at approximately 12:50PM while
assigned as an inside security officer, I was
supervising inmate Garcia, Oscar DC #683590
picking up trash around the side of food
service.
As inmate Garcia approached the
sidewalk in front of laundry, inmate Garcia
stated, “this is bullshit. You need to take
me to jail cracker, I ain’t your boy today.”
I gave inmate Garcia a direct order to
continue to pick up trash or a disciplinary
report would be written. At this time inmate
Garcia began walking away from me. I ordered
inmate Garcia to stop and turn around so that
I could place hand restraints on him. Inmate
Garcia complied and as I attempted to place
hand restraints on him, inmate Garcia turned
towards me and stated, “you ain’t putting
handcuffs on me bitch.” I gave inmate Garcia
an order to turn back around as I reached for
my chemical agents as a precaution. At this
time inmate Garcia lunged towards me and it
became necessary to use force to control
inmate Garcia’s actions.
Inmate Garcia was
advised
that
he
would
be
receiving
a
disciplinary report for I-19, assault or
attempted assault on a correctional officer.
Defs’ Exh. B at 4.
-10-
officers responded to Hoopes’ body alarm that was activated.8
Exhs. A, D, E, F, see Response at 3.
Defendants submit that the
use of force was spontaneous pursuant to Florida Admin. Code 33602.210 due to Plaintiff lunging at Hoopes.
Exhs. A, D, E, F.
On
the other hand, Plaintiff claims he was taken down by Hoopes for no
reason at all.
Response at 3.
It is undisputed that neither
Austin nor Anthony was present to see Hoopes’ initial use of force
on Plaintiff.
Exhs. C, D, G, I; Response at 3.
The events that transpired after Hoopes’ took Plaintiff to the
ground
are
somewhat
convoluted
due
to
Plaintiff’s
factual
discrepancies between his declaration and his Amended Complaint.
8
The record on summary judgment reveals that Plaintiff
provided a different version of the events to the Inspector
General’s Office investigating the March 29 use of force by
Correctional Officer Hoopes. Exh. E. Plaintiff’ statement was as
follows:
On 3/29/08 he was picking up trash as ordered to do, when
officer Hoopes just picked him up and slammed him to the
ground for no reason. Office Anthony jumped on him and
held him to the ground while officer Hoopes kicked and
kneed the inmate. The inmate stated he was dazed and
might have been out for a little bit, when he came too
someone grab his hair and slammed his head into the
concrete, which knocked out one tooth and chopped
another. Lieutenant Austin showed up and said “You know
why you are getting this beating? It’s because of me.”
Id.
Notably, Plaintiff’s statement to the Inspector General’s Office
involves different participants, a different description of the use
of force, and the injuries Plaintiff claimed he sustained are
different. This Court does not make credibility determinations,
but does note these differences in deciding what reasonable
inferences a jury could make based on the weight of evidence.
-11-
Defendants submit that Defendant Anthony, who was assigned as a
confinement escort officer, and Correctional Officer Geremonte, who
is
not
named
as
a
defendant
in
this
action,
correctional officer Hoopes’ body alarm.
Complaint.
responded
to
Exh. C; see Amended
When Defendant Anthony and Correctional Correctional
Officer Geremonte arrived, Hoopes was holding Plaintiff in a
custodial hold on the ground, face first.
Exhs. C, D.
Anthony did
not see any force applied to Plaintiff by Hoopes other than Hoopes
holding him on the ground.9
Exhs. C, D.
Plaintiff claims in his
declaration that he was unconscious at this point and when he
awoke, he saw Defendants Wilson and Anthony present.
Response at
3.
In the next two paragraphs of Plaintiff’s declaration, he
claims he awoke from unconsciousness and Hoopes stood him up and
punched in his mouth with a closed fist.
Response at 3.
This is
essentially a third use of force not alleged in the Amended
Complaint.
See Amended Complaint at 5.
Then Plaintiff claims,
albeit contradictory to his own statement that he awoke and Wilson
and Anthony were present, that Anthony and Wilson “ran from the
9
Because Hoopes was dismissed pursuant to Fed. R. Civ. P.
4(m), the Court will not go into detail regarding Hoopes’
spontaneous use of force against Plaintiff. However, the Court
notes that the Inspector General found Hoopes complied with
Department rules and procedures and that the use of force was not
excessive.
Plaintiff has provided the Court no evidence to
contradict this record evidence, other than his own statements
contained in his declaration. Exh. E.
-12-
kitchen and they started to forcefully and violently kick and punch
the Plaintiff . . . until he was knocked completely unconscious”
for the second time.
Response at 4.
Defendant Wilson submits that he was not present at any time
while Defendants Austin and Anthony were in Plaintiff’s presence.
See Wilson Mot. at 4, 13; see also Exhs. C, D.
was
assigned
as
confinement unit.
a
Housing
Officer
Exhs. C, D, H.
in
Defendant Wilson
F-Dorm,
which
is
the
Pursuant to Department of
Corrections’ policies, confinement officers must remain in the
confinement dorms during their shift.
Plaintiff’s
declaration,
Defendants’
Exhs. C, D.
exhibits
show
Contrary to
that
when
Defendant Anthony and Correctional Officer Geremonte arrived at the
scene, they simply took over the custodial hold of Plaintiff on the
ground from Hoopes until the Second Shift Lieutenant arrived.
Defendant Anthony did not use any force on Plaintiff other than
holding him on the ground.
Exhs. C, D.
Defendant Austin, the Second Shift Lieutenant, arrived at the
scene and Hoopes told him what happened.
Exh. D.
Plaintiff claims
he awoke from losing consciousness for the second time at this
point and saw Defendant Austin.
Response at 4.
Defendants submit
that during the entire time Defendants Austin and Anthony were
present, Plaintiff was conscious and never lost consciousness.
Exhs. C, D, K, L.
Defendant Austin submits that he neither used
any force on Plaintiff, nor did he direct other correctional
-13-
officers to use force on him.
Exh. D.
Plaintiff does not dispute
that Defendant Austin did not use force on him, but submits that
Austin ordered Defendants Wilson and Anthony to punch and kick
Plaintiff.
Response at 4.
Pursuant
to
Department
policy,
Defendant
Austin
ordered
another correctional officer, Jean Pierre, to retrieve a video
camera to record Plaintiff’s escort to medical and subsequent
placement in a cell.
Defendant Anthony and Correctional Officer
Geremonte continued to hold Plaintiff down on the ground while the
video camera was retrieved.
Exhs. C, D.
Plaintiff does not
dispute that Defendant Austin directed retrieval of a camera.
Defendants submit that no one made racially derogatory statements
toward Plaintiff.
Exhs. C, D.
Plaintiff claims he was called
several racially-motivated derogatory names.
When
camera,
Correctional
Defendant
Officer
Austin
gave
Pierre
the
Response at 4.
arrived
lead
with
the
statement
video
about
the
spontaneous use of force and asked Plaintiff for his name and DC
number so
he
could
identify
him
on
the
video.
Exh.
Plaintiff continued to give Austin the wrong DC number.
D.
C,
D.
Exhs. C,
Plaintiff does not dispute that he gave the wrong DC number.
See Response at 1-5.
It is undisputed that Defendant Austin ordered Defendant
Anthony and Correctional Officer Geremonte to escort Plaintiff to
medical.
Exhs. C, D.
Plaintiff was helped to his feet because he
-14-
was in leg shackles and handcuffed from behind.
Sharp examined Plaintiff at medical.
Exhs C, D.
Nurse
Exhs. A, C, D, K.
injuries Plaintiff sustained are disputed.
The
Defendants’ evidence
including Plaintiff’s medical records reveals that Plaintiff had a
small laceration under his left eye, a scrape on his left forehead,
a scrape on his upper lip, and his front tooth was broken.
K, L.
Nurse Sharp treated Plaintiff’s cut under his eye and
swabbed his lip.
had
any
Exhs.
other
Exhs. D, K.
injuries,
Nurse Sharp asked Plaintiff if he
and
he
said
he
did
not.
Exh.
D.
Defendants submit that Plaintiff was neither holding or protecting
his arm, and his arm was not hanging from the socket.
K, L.
Exhs. C, D,
Plaintiff did not complain about his shoulder, ear, or
vision during the examination.
Exhs. D, K, L.
referred Plaintiff for a dental visit.
Exh. K.
Nurse Sharp
Plaintiff submits
in his declaration that he had “physical injuries” and trauma to
his “left ear and left shoulder.”
Plaintiff does not point to any
medical records to document these injuries.
10
See Response at 1-5.10
In fact, Defendants point to medical record entries dated
April 4, 2008 and April 22, 2008, during which Plaintiff complained
once about his shoulder and once about his left ear, but never
complained about hearing loss. Motion at 10 (citing Exhs. K, L,
N). The medical record reveals that Plaintiff’s ear was examined
and it was noted that his ear canals looked normal.
Plaintiff
complained in his Amended Complaint of a left eye injury, but did
not mention this injury in his declaration.
Response at 1-5.
Nevertheless, the medical records indicated that Plaintiff only
mentioned a “dry eye” during a medical visit, which is an ongoing
medical concern he has experienced prior to the use of force.
Motion at 10 (citing Exhs. L, N).
-15-
B.
March 30, 2008 Retaliation Incident: Defendant Wilson
Defendant Wilson denies making any threats to Plaintiff on
March 30 about reporting the March 29 incident because Wilson was
not even present during the March 29 incident.
Exhs. C, D.
Wilson Mot. at 4;
Defendant Austin did not order or request that
Defendant Wilson threaten Plaintiff.
Motion at 9;
Exhs. C, D.
Defendant Wilson did not know that Plaintiff had already filed an
inmate grievance concerning the March 29 incident earlier that day.
Wilson Mot. at 17; Exh. 0 at 191.
To the contrary, Plaintiff
submits in his declaration that Defendant Wilson threatened him
with reprisal for filing grievances because Wilson knew Plaintiff
submitted a grievance.
C.
Response at 5.
March 31, 2008 Incident: Defendants Bostic and Austin
It is undisputed that on March 31, Defendant Bostic escorted
Plaintiff to and from his dental appointment.
Exh. M.
Defendant
Bostic knew that Plaintiff had been involved in a use of force and
observed that Plaintiff had marks on his mouth and a chipped tooth.
Id.
Plaintiff did not have a swollen face or head or any other
signs of injury. Id. After leaving the dental appointment, Bostic
escorted Plaintiff back to his cell in the Y Dorm.
Id.
Plaintiff disputes the events that occurred during the return
escort.
Defendant Bostic submits that during the return escort,
Plaintiff did not act scared, make any statements about Defendant
Austin, request protection, ask that Bostic delay bringing him to
-16-
the Y Dorm, or say anything about being afraid of being killed or
injured.
Id.
Defendant Bostic submits that once they arrived in
Y Dorm, Defendant Bostic saw Defendant Austin in the sally port.
As a Shift Lieutenant, Defendant Austin’s duties require that he
make rounds of different dorms.
Defendant Bostic did not see
Austin until she entered Y Dorm.
Austin did not speak with
Plaintiff in the sally port, did not yell or reprimand Bostic, nor
did he order her to leave the area and abandon her escort.
at 9; Exhs. D, M.
Motion
Defendant Bostic did not leave Plaintiff in the
Y Dorm sally port, did not go through the Y-1 door alone, and then
meet Plaintiff at his cell door. Defendant Bostic never heard
Defendant Austin say any racial slurs.
Exh. M.
Plaintiff disputes the facts surrounding the return escort in
his declaration and states “Defendant Austin did forcefully assault
the Plaintiff Garcia by punching him in the mouth to bloody the
Plaintiff’s mouth and Defendant Bostic failed to protect the
Plaintiff even though she witnessed the entire reprisal attack.”
Notably, Plaintiff’s version of the event in his Amended Complaint
and declaration are contradictory.
In the Amended Complaint,
Plaintiff alleged that Bostic left Plaintiff alone with Defendant
Austin per Austin’s directive.
D.
Amended Complaint at 7.
October 2009 Continuation: Defendant Austin
Defendant Austin submits that he never threatened Plaintiff.
Exh. D.
If Plaintiff saw Defendant Austin at his cell front during
-17-
either 2008 or 2009, this would not be unusual because Austin’s
duties as a Shift Lieutenant required that he make rounds of the
dorms.
Exh. D. Plaintiff does not address this incident in his
declaration.
Response at 1-5.
Thus, the Court deems Defendant
Austin’s version of the facts as undisputed.
V.
A.
Applicable Law
Eighth Amendment
1.
Excessive Force
Plaintiff alleges violations of the Eighth Amendment under the
United States Constitution.
See generally Complaint.
The Eighth
Amendment, which applies to the states through the Fourteenth
Amendment, can give rise to claims challenging the excessive use of
force.
Thomas
v.
Bryant,
614
F.3d
1288,
1305
(11th
Cir.
2010)(reviewing categories of claims under the Eighth Amendment).
An excessive-force claim requires a two-prong showing: (1) an
objective showing of deprivation or injury that is “sufficiently
serious” to constitute a denial of the “minimal civilized measure
of life’s necessities”; and, (2) a subjective showing that the
official had a “sufficiently culpable state of mind.”
Farmer
v.
omitted).
Brennan,
511
U.S.
825,
834
Id. (citing
(1994)(other
citations
It is the “unnecessary and wanton infliction of pain”
caused by force used “maliciously and sadistically” for the very
purpose
of
punishment.
causing
harm
that
constitutes
cruel
and
Whitley v. Albers, 475 U.S. 312, 322 (1986).
-18-
unusual
Thus,
where an Eighth Amendment claim is based upon allegations of
excessive force, the question turns on whether the prison guard’s
“force was applied in a good faith effort to maintain or restore
discipline or maliciously or sadistically for the very purpose of
causing harm.”
Bozeman v. Orum, 422 F.3d 1265, 1271 (11th Cir.
2005).
To
determine
whether
force
was
applied
“maliciously
and
sadistically,” courts consider the following factors: “(1) the
extent of injury; (2) the need for application of force; (3) the
relationship between that need and the amount of force used; (4)
any efforts made to temper the severity of a forceful response; and
(5) the extent of the threat to the safety of staff and inmates, as
reasonably perceived by the responsible officials on the basis of
facts known to them.”
Campbell v. Sikes, 169 F.3d 1353, 1375 (11th
Cir. 1999) (quotations and citations omitted).
When considering
these factors, the courts “give a wide range of deference to prison
officials acting to preserve discipline and security, including
when considering decisions made at the scene of a disturbance.”
Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007)(citations
omitted).
The courts examine the facts as reasonably perceived by
Defendants on the basis of the facts known to them at the time.
Whitley v. Albers, 475 U.S. 312, 321 (1986).
Moreover, in the context of prison discipline, a distinction
is made between “punishment after the fact and immediate coercive
-19-
measures necessary to restore order or security.”
813 F.2d 318, 324-325 (11th Cir. 1987).
Ort v. White,
When a prison’s internal
safety is of concern, courts conduct a more deferential review of
the prison officials’ actions.
1575
(11th
Cir.
Williams v. Burton, 943 F.2d 1572,
1991)(citations
omitted).
Indeed,
“[t]hat
deference extends to a prison security measure taken in response to
an actual confrontation with riotous inmates, just as it does to
prophylactic
or
preventive
measures
intended
to
reduce
the
incidence of these or any other breaches in prison discipline.”
Whitley, 475 U.S. at 322; See also Bell v. Wolfish, 441 U.S. 520,
547 (1979).
2.
Failure to Protect
The Supreme Court made clear that “prison officials have a
duty . . . to protect prisoners from violence . . . .”
Farmer v.
Brennan, 511 U.S. 825, 833 (1994); see also Doe v. Ga. Dep’t of
Corr., 245 F. App’x 899 (11th Cir. 2007).
A violation of the
Eighth Amendment occurs when a prison official acts with deliberate
indifference to a substantial risk of harm to an inmate.
511 U.S. at 828.
Farmer,
“Deliberate indifference is not the same thing as
negligence or carelessness.”
Maldonado v. Snead, 168 F. App’x 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.
Galloway, 352 F.3d 1346, 1350 (11th Cir. 2003).
-20-
Carter v.
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
official drew that inference.
harm
exists
and
that
the
prison
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].”
failure to
alleviate
a
Id. at 1350.
significant
risk
that
“An official’s
he
should
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.
B.
Id. at 842.
First Amendment- Retaliation
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).
To prevail on a First
Amendment 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 between the
retaliatory action and the protected speech.
-21-
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)).
VI.
Defendants
Anthony,
Analysis
Austin,
Wilson,
and
Bostic
move
for
summary judgment as a matter of law as to the Eighth Amendment
excessive force claim, Eighth Amendment failure to protect claim,
and First Amendment retaliation claim.
Defendants argue that
Correctional Officer Hoopes’ use of force was spontaneous and in
response to Plaintiff lunging at Hoopes.
None of the named
Defendants were present when Hoopes spontaneously took Plaintiff to
the ground, face first.
Defendants submit that none of them used
any amount of force on Plaintiff, except Defendant Anthony held
Plaintiff on the ground until the video camera Austin ordered to be
retrieved arrived.
point.
Defendant Wilson was never present at any
Defendants again raise the Heck11 bar considering Plaintiff
received a disciplinary report and subsequent conviction related to
this use of force that has not been expunged.
11
Defendant Austin
Heck v. Humphrey, 512 U.S. 477 (1994)(a convicted criminal
defendant cannot bring a section 1983 action that would
“necessarily imply the invalidity of his conviction or sentence”
unless he can prove the conviction or sentence has been
invalidated.)
-22-
denies punching Plaintiff on March 31 or ever threatening him
thereafter.
And, Defendant Bostic denies failing to protect
Plaintiff because the incident on March 31 never occurred and, as
alleged in the Amended Complaint, is completely implausible because
an inmate would never walk to his cell unescorted.
A.
March 29, 2008 Use of Force Incident
The record reveals that the initial use of force involved
Correctional Officer Hoopes, who is no longer a defendant in this
action, taking Plaintiff down to the ground face first.
Plaintiff
challenges Hoopes’ use of force in his declaration, claiming that
he was doing nothing wrong when Hoopes took him down to the ground
face
first.
Supra
at
12-14.
However,
Plaintiff
received
a
disciplinary report for attempting to assault Correctional Officer
Hoopes, which remains valid.
Id.
Any claim to the contrary, i.e.
that Plaintiff did not attempt to assault Hoopes, would be barred
by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
The use of force
by Hoopes is not at issue in this action.
What remains at issue is whether the record contains a genuine
issue of material fact as to the excessive use of force claim
involving Defendants Austin, Anthony, and Wilson.
The Court finds
the record does not contain a genuine issue of material fact.12 The
12
The Court finds Plaintiff’s excessive force claims against
Defendants Austin, Anthony, and Wilson is not barred by Heck.
Although Plaintiff now challenges the disciplinary infraction and
guilty finding involving Correctional Officer Hoopes, the Amended
(continued...)
-23-
record shows neither a deprivation or injury that is sufficiently
serious to constitute a denial of the minimal civilized measure of
life’s necessities, nor that defendants had a sufficiently culpable
state of mind.
The evidence of record reveals that Defendant
Anthony responded to a body alarm activated by Correctional Officer
Hoopes.
When Defendant Anthony arrived at the scene, he took over
the custodial hold of Plaintiff on the ground until Defendant
Austin, who was the Second Shift Lieutenant, and the video camera
arrived.
The need for Anthony’s application of force, to the
extent a custodial hold constitutes force, stemmed from Plaintiff’s
attempted assault on Hoopes.
The custodial hold by Defendant
Anthony was done to preserve order in the institution and remove
Hoopes from any further engagement with Plaintiff.
It is undisputed that Defendant Austin did not use any force
on Plaintiff.
Supra at 16.
To the extent Plaintiff attributes
liability on Defendant Austin for directing Correctional Officers
Anthony and Wilson to beat Plaintiff, the evidence of record shows
this scenario is implausible.
First, Defendant Wilson was never
present during any part of this incident because he was assigned as
the Housing Officer in F Dorm.
Supra at 15-16.
Second, Plaintiff
has stated his version of the events that transpired during the use
12
(...continued)
Complaint did not raise such a claim. According to the Amended
Complaint, Plaintiff only challenged the amount of force used, not
the fact that it was used by Defendants.
-24-
of force on March 29, 2008 three different ways.
Complaint;
Exh.
E
(Inspector
General
See Amended
Investigation
Response at 1-5 (Plaintiff’s declaration).
Report);
Third, Defendants
contend that the injuries Plaintiff sustained, including: a chipped
front tooth, a laceration under his left eye, scrape on his left
forehead, and a scrape on his upper lip are consistent with this
face-first take down by Hoopes and the Court agrees.
The injuries
Plaintiff sustained as evidenced by the medical record do not
coincide with the group beating until Plaintiff went unconscious
two
times
Defendant
as
Plaintiff
Austin
describes.
directed
Defendant
Moreover,
Anthony
the
and
fact
that
Correctional
Officer Geremonte to escort Plaintiff to medical further shows that
the force applied was not malicious or sadistic, but done in a good
faith effort to restore or maintain order at the institution.
Besides Plaintiff’s self-serving contentions in his declaration,
there is absolutely no other evidence that Defendants Wilson and
Anthony beat Plaintiff, and beat him again at the direction of
Defendant Austin, or that Defendant Wilson was even present when
the incident occurred.13 At this stage of the proceedings the Court
does not make a credibility determination, or choose between
13
Plaintiff did not submit any declaration of any inmate
witnesses and the Court is aware of at least one inmate declaration
he could have submitted. Additionally, according to the Amended
Complaint, Plaintiff involved his family members in the incidents
that transpired and his family allegedly contacted various
correctional officials.
Plaintiff failed to include any
declarations from any of his family members.
-25-
conflicting evidence, Bozeman, 422 F.3d at 1267,
but in this case
the overwhelming evidence of record would not allow a reasonable
jury to conclude that Plaintiff was beaten by Defendants Anthony
and Wilson,
or
beaten
at
the
direction
of
Defendant
Austin.
Accordingly, Defendants Austin, Anthony, and Wilson are entitled to
summary judgment on Plaintiff’s excessive use of force claim.
B.
March 30, 2008 Retaliation Incident
The summary judgment record does not show a genuine dispute of
material fact regarding the First Amendment retaliation claim
against Defendant Wilson.
Significantly, the record establishes
that Defendant Wilson was not present at any point during the March
29, 2008 use of force on Plaintiff because he was assigned as the
Housing Officer in the F Dormitory. Supra at 18.
disputes
ever
threatening
Plaintiff
about
Defendant Wilson
filing
grievances concerning the March 29, 2008 use of force.
any
Id.
inmate
And,
Defendant Austin submits that he never directed Wilson to threaten
Plaintiff for filing grievances.
Id.
Assuming, arguendo, that Defendant Wilson had an interest in
the March 29 incident and that he threatened Plaintiff about filing
any inmate grievances, there is no causal relationship between the
retaliatory action and the protected speech.
denies
knowing
that
Plaintiff
filed
any
Defendant Wilson
inmate
grievances
concerning the March 29 use of force, and Plaintiff agreed during
his deposition that he did not think Wilson knew that he filed a
-26-
grievance
with
the
Inspector
General
on
the
day
before.
Considering Plaintiff already filed an inmate grievance with the
Inspector General’s Office concerning the use of force, Plaintiff
acknowledges that there were no other inmate grievances necessary
to file concerning the use of force.
Exh. O at 191.
Thus, the
record lacks a causal connection between Defendant Wilson and the
alleged
retaliatory
Defendant
Wilsons’
action.
motion
Consequently,
for
summary
the
judgment
Court
is
due
finds
to
be
granted.
C.
March 31, 2008 Punching and Failure to Protect Incidents
The Court finds no genuine issue of material fact regarding
Plaintiff’s failure to protect claim.
Defendant Bostic testifies
that she remembered seeing Defendant Austin in the sally port
during the return part of the escort with Plaintiff, but denies
that she
left
Plaintiff
alone
with
Defendant
Austin
anything transpired between Austin and Plaintiff.
or
that
Supra at 20.
Defendant Austin testifies that he did even recall seeing Plaintiff
on March 31 and did not punch Plaintiff.
Plaintiff’s
declaration
and
Id.
Amended
Complaint
contain
contradictory versions of the events that transpired during the
return escort. The Amended Complaint alleges that Defendant Bostic
left Plaintiff alone with Defendant Austin, per Austin’s directive,
despite Plaintiff’s request that Bostic not leave him because he
was afraid, after which Austin punched Plaintiff in the mouth, and
-27-
he walked back to his cell unescorted.
Id.
Defendant Bostic
testifies that Plaintiff’s version of the incident set forth in his
Amended Complaint is implausible because an inmate would never be
allowed
to
walk
unescorted
back
to
his
cell.
Plaintiff’s
declaration attached to his Response contains only conclusory terms
and claims that Bostic failed to protect Plaintiff and witnessed
the entire reprisal attack.
allegations
within
Id.
Plaintiff’s
A dispute in the factual
Amended
Complaint
and
his
declaration filed in support of his Response opposing Defendants’s
motions for summary judgment does not create a genuine issue of
material fact.
Here, drawing all reasonable inferences from the
record, particularly the fact that an inmate would not be permitted
to walk alone back to his cell, the record does not show that
Defendant Bostic was aware of specific facts from which a reference
could be drawn that a substantial risk of serious harm existed and
that she
drew
that
inference.
Accordingly,
the
Court
finds
Defendant Bostic’s motion for summary judgment as to the failure to
protect claim and Defendant Austin’s motion for summary judgment as
to the excessive use of force claim are due to be granted.
D.
October 2009 Continuation
The Amended Complaint alleged that on an unspecified day in
October of 2009, Defendant Austin went to Plaintiff’s cell and told
him he “was back” and threatened “to get” Plaintiff.
Amended
Complaint at 8. Defendant Austin presented evidence that he did no
-28-
such thing.
Supra at 20.
Plaintiff presented no evidence to
overcome the evidence of record.
Nevertheless, even if Plaintiff
had
taunts
presented
evidence,
verbal
are
not
sufficient
to
constitute a constitutional violation.
Edwards v. Gilbert, 867
F.2d 1271, 1274 n.1 (11th Cir. 1989).
Consequently, the Court
grants Defendant Austin’s motion for summary judgment as to the
October 2009 claim.
ACCORDINGLY, it is hereby
ORDERED:
1.
The
Clerk
of
Court
response (Doc. #118-1).
shall
strike
Plaintiff’s
second
The Court deems Plaintiff’s initial
response (Doc. #112) is the operative response.
2. Plaintiff’s “motion explaining why it appears Plaintiff is
delaying
legal
litigation
with
the
Defendants”
(Doc.
#134)
construed to include a motion to appoint counsel is DENIED.
3.
The motions for summary judgment filed on behalf of
Defendants Austin, Anthony, Bostic, (Doc. #87) and Wilson (Doc.
#88) are GRANTED.
Judgment is entered in favor of Defendants
Austin, Anthony, Bostic, and Wilson, and Plaintiff takes nothing.
4.
The Clerk of Court shall terminate any pending motions,
enter judgment accordingly, and close this case.
DONE AND ORDERED at Fort Myers, Florida, on this
of January, 2014.
sa: alj; Copies: All Parties of Record
-29-
23rd
day
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