Garcia v. Austin et al
Filing
70
OPINION AND ORDER granting 49 Motion to dismiss as to Bostic only with respect to the failure to intervene claim and otherwise denying; denying 58 Motion to dismiss; denying 66 Motion for reconsideration. Signed by Judge John E. Steele on 9/10/2012. (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.
Status
This matter comes before the Court upon review of the Motion
to Dismiss (Doc. #49, Mot. Dismiss), filed on behalf of Defendants
Bostic, Anthony, and Austin.
Plaintiff was given admonitions and
a time frame to file a response to a dispositive motion.
#32.
See Doc.
Plaintiff chose not to file a response to the Motion.
Also
before the Court is the Motion to Dismiss (Doc. #58, Wilson Mot.
Dismiss) filed on behalf of Defendant Wilson.
Plaintiff filed a
response in opposition to Wilson’s Motion (Doc. #69, Response).
Additionally
pending
is
Plaintiff’s
“motion
to
recall
order
reinstate [sic] Defendant Hoopes in original complaint to this
Court” (Doc. #66), which the Court construes as a motion for
reconsideration
of
the
Court’s
dismissal
of
Defendant
Hoopes
pursuant to Fed. R. Civ. P. 4(m).1
These matters are ripe for
review.
II. Facts
Oscar Garcia, a pro se plaintiff who is in the custody of the
Secretary of the Florida Department of Corrections, initiated this
action by filing a Civil Rights Complaint Form (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.
See docket.
The
Southern District transferred the case to this Court on February 7,
2011.
Doc. #5, #14.
Plaintiff is proceeding on his Amended
Complaint (Doc. #6, hereinafter “Amended Complaint”).
Complaint
contains
attachments,
which
include
The Amended
various
inmate
grievances from the year 2010 and responses thereto.
The
officers
Amended
who
Defendants:
Complaint
worked
at
Lieutenant
names
Charlotte
Austin,
the
following
Correctional
Correctional
correctional
Institution
Officer
as
Wilson,
Correctional Officer Anthony, and Correctional Officer Bostic.
See generally Amended Complaint.
individual capacities.
The Defendants are sued in their
Id.; see also Response at 9 (clarifying
that all Defendants are named in their individual capacities only).
According to the Amended Complaint, on various occasions during
1
Defendants Austin, Anthony, and Bostic filed a response in
opposition to the Plaintiff’s motion for reconsideration, only to
the extent it seeks appointment of counsel. See Doc. #67. The
Court does not construe the motion for reconsideration to include
a motion to appoint counsel.
-2-
2008
Plaintiff
physically
was
beaten
assaulted,
to
verbally
the
point
harassed,
of
unconsciousness,
and
threatened
with
retaliation and future beatings if he reported the incidents.
Amended Complaint
at
4.
The
following factual
narrative
See
is
presumed true at this stage of the proceedings.
A. March 29, 2008 Beating Incidents: Defendants Austin, Wilson, and
Anthony
On March 29, 2008, Officer Hoopes2 directed Plaintiff to
“pick-up trash.”
Amended Complaint at 5.
Plaintiff alleges that
Hoopes slammed Plaintiff to the ground, handcuffed his hands behind
his back, and after picking him up from the ground, punched him in
the mouth.
Id.
After this initial beating, Plaintiff claims that
Defendants
Wilson
and
Anthony
entered
the
area
with
other
unidentified officers and joined Hoopes in continuing to kick and
punch Plaintiff until he lost consciousness.
Id.
When Plaintiff regained consciousness, Plaintiff alleges that
Lieutenant Austin “came and stated” “the next time I ask for your
name, you won’t forgot to say sir, will you?”
Id.
Defendant
Austin then asked Plaintiff for his name and inmate number.
Id.
Plaintiff states that he answered Austin’s question, but did not
say “sir.”
Id. at 6.
Plaintiff alleges that Defendant Austin
directed Hoopes, Wilson, and Anthony to “kick his ass” because he
2
The Court does not refer to Hoopes as a Defendant because on
April 24, 2012, the Court dismissed Hoopes pursuant to Fed. R. Civ.
P. 4(m).
-3-
did not say “sir.”
Id.
For the second time, Plaintiff claims
Hoopes, Wilson, and Anthony beat him while calling him “racially
derogatory” names, until he lost consciousness.
Id.
After the
second attack Plaintiff states that he was taken to medical for a
pre-confinement physical. Id. Plaintiff alleges that he had blood
flowing from “within and under” his left eye, trauma to his left
ear, and his left shoulder.
B.
Id.
March 30, 2008 Retaliation Incident: Defendant Wilson
On March 30, 2008, Plaintiff alleges that Defendant Wilson and
an unidentified officer went to his cell and threatened Plaintiff
with “reprisal” if he reported the March 29 incident by filing any
inmate grievances.
Id. at 6.
Plaintiff states that Wilson told
him “they will beat him worse than before,” if he grieves the
issue.
Id.
Plaintiff explains, however, that before Wilson
threatened him, he had already submitted an inmate request to see
the “compound inspector” about the March 29 incident.
C.
Id.
March 31, 2008 Punching Incident: Defendants Austin and Bostic
On March 31, 2008, Defendant Bostic was escorting Plaintiff in
handcuffs
and
shackles
from
a
dental
callout.
Plaintiff
saw
Lieutenant Austin in the sally port of Y-dorm and asked Bostic to
delay his escort because he feared Austin would hurt or kill him.
Id. at 7.
Nonetheless, Bostic continued to escort Plaintiff into
the Y-dorm.
Plaintiff claims that Defendant Lieutenant Austin
yelled to Bostic telling Bostic to bring Plaintiff to the “other
-4-
side of Y-dorm because he wanted to talk to Plaintiff alone.”
Id.
Bostic complied with Lieutenant Austin’s instruction and left
Plaintiff alone with Austin.
Id.
Plaintiff claims that Defendant
Austin then escorted him into a bathroom where Lieutenant Austin
proceeded to threaten Plaintiff with death if he told on him or any
of the other officers.
Plaintiff claims Lieutenant Austin then
“fabricated a report verbally [sic] to state that he heard that
[Plaintiff] was eye-balling one of his nurses.”
Id.
Thereafter,
Lieutenant Austin punched him one time in his mouth and told him
this is “a reminder as to how easy [it] [is] to get a hold of
[him].”
Id.
After this assault, Lieutenant Austin “ordered Plaintiff to
return to [his] cell.”
Id.
When he reached his cell door,
Plaintiff states that Defendant Bostic was waiting at his cell door
to secure the door and was “shocked” to see that he had a bloodied
mouth.
Id.
treatment.
Plaintiff states he was too scared to seek medical
Id. at 8.
Instead, Plaintiff contacted his family
members about the incident and his family called the Warden.
Id.
Plaintiff avers that the harassment stopped for a while after his
family contacted the Warden.
D.
June 2008 and October 2009 Continuation
On
an
unidentified
unspecified
officer
day
in
“resumed”
June
of
2008,
“threatening
Hoopes
and
Plaintiff, and called him “racially derogatory” names.
-5-
and
an
harassing”
Id. at 9.
Plaintiff contacted his family and his family again contacted the
Warden to report the incident.
Id.
After Plaintiff’s family
contacted the Warden, Plaintiff claims Hoopes’ threats stopped.
Id.
On an unspecified day in October of 2009, Defendant Austin
returned to Charlotte Correctional.
Id.
At some point, Defendant
Austin went to Plaintiff’s cell to tell him “he was back” and
threatened “to get” Plaintiff. Id. Plaintiff called his sister to
tell her about the incident and she reported the incident to the
Colonel.
Id.
Thereafter, the Colonel called him to his office to
discuss the incident.
Two weeks later, Plaintiff was transferred
to Lake Butler Medical Reception Center, due to the injuries
sustained in his left ear as a result of the 2008 beating, and then
he was transferred to Martin Correctional Institution.
10.
Id. at 9-
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. Id. at
11.
III. Motions to Dismiss
Defendants Bostic, Anthony, and Wilson move to dismiss the
action pursuant to Fed. R. Civ. P. 12(b)(6).3
With respect to the
3
Defendants also argue that the action should be dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(b)(ii) for failure to state a
claim, presumably because Defendants want to ensure Plaintiff
receives a strike if the action is dismissed for failure to state
(continued...)
-6-
March 29, 2008 incidents, Defendants argue that the claims are
barred by Heck v. Humphrey, 512 U.S. 477 (1994) and point to a
disciplinary report (#510-080860) in which Plaintiff was charged
with assault or attempted assault on an officer on March 29, 2008.
Mot. Dismiss at 7, 18-20.
With respect to the March 31 incident,
Defendant Bostic moves to dismiss based on Plaintiff’s failure to
exhaust
his
administrative
remedies.
Id.
at
3-6,
10-16.
Specifically, Bostic argues that no grievance raised an issue with
a female officer failing to report Defendant Austin’s March 31,
2008 assault on Plaintiff.
Id. at 6.
In the alternative Bostic
argues that the action fails to state a failure to intervene claim
and asserts that she is entitled to qualified immunity.
Id. at 24-
27, 31.
Defendant Wilson also moves to dismiss the action and asserts
that he is entitled to qualified immunity.
27-29.
Wilson Mot. Dismiss at
Defendant Wilson argues that Plaintiff failed to exhaust
his administrative remedies because Wilson’s name is only mentioned
in one grievance.
Wilson Mot. Dismiss at 5, 10-17.
With respect
to the March 29 incident, Wilson also argues that Plaintiff’s claim
is barred by Heck.
Id. at 7-8, 17-21.
With respect to the
retaliation claim stemming from the incident on March 30, Wilson
3
(...continued)
a claim. Because the action is not dismissed in its entirety under
§ 1915(e)(2)(b)(ii), the Court finds Fed. R. Civ. P. 12(b)(6) is
the proper standard.
-7-
argues that the claim fails because Plaintiff was not deterred from
filing any grievances because he had reported the incident before
Wilson’s alleged threats.
Id. at 24.
IV. Standard of Review
In deciding a Rule 12(b)(6) motion to dismiss, the Court
limits its
consideration
to
well-pleaded
factual
allegations,
documents central to or referenced in the complaint, and matters
judicially noticed.
La Grasta v. First Union Sec., Inc., 358 F.3d
840, 845 (11th Cir. 2004).
Thus, the Court must accept all factual
allegations in Plaintiff’s Complaint as true and take them in the
light most favorable to the plaintiff.
F.3d 1282, 1284 (11th Cir. 2008).
Pielage v. McConnell, 516
Conclusory allegations, however,
are not entitled to a presumption of truth.
Ashcroft v. Iqbal, 556
U.S. 662, 129 S. Ct. 1937, 1951 (2009)(discussing a 12(b)(6)
dismissal); Marsh v. Butler County, Ala., 268 F.3d 1014, 1036 n.16
(11th Cir. 2001).
The Court employs the Twombly-Iqbal plausibility standard when
reviewing a complaint subject to a motion to dismiss.
Scott, 610 F.3d 701, 708, fn. 2 (11th Cir. 2010).
Randall v.
A claim is
plausible where the plaintiff alleges facts that “allow[] the court
to draw the reasonable inference that the defendant is liable for
the misconduct alleged.”
Ct. 1937, 1949 (2009).
plaintiff
allege
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.
The plausibility standard requires that a
sufficient
facts
-8-
“to
raise
a
reasonable
expectation that discovery will reveal evidence” that supports the
plaintiff’s claim.
556 (2007);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
Marsh, 268 F.3d at 1036 n.16.
Specifically, “[w]hile
a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations . . . a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires
more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Id. at 555 (citations
omitted). Thus, “the-defendant-unlawfully harmed me accusation” is
insufficient.
Ashcroft, 129 S. Ct. at 1949.
“Nor does a complaint
suffice if it tenders naked assertions devoid of further factual
enhancement.”
Id.
The “[f]actual allegations must be enough to raise a right to
relief above the speculative level.”
See Twombly, 550 U.S. 544,
127 S. Ct. 1955, 1965, 1968-69 (citations omitted) (abrogating
Conley, 355 U.S. 41
in part and stating that Conley did not set
forth the minimum standard governing a complaint’s survival under
a motion to dismiss, rather the case “described the breadth of
opportunity
to
prove
what
an
adequate
complaint
claims”).
Additionally, there is no longer a heightened pleading requirement.
Randall, 610 F.3d at 701.
Because Plaintiff is proceeding pro se,
his pleadings are held to a less stringent standard than pleadings
drafted by an attorney and will be liberally construed.
-9-
Hughes v.
Lott, 350 F.3d 1157, 1160 (11th Cir. 2003) (citing Tannenbaum v.
United States, 148 F.3d 1262, 1263 (11th Cir. 1998)).
V.
A.
Applicable Law & Findings
Section 1983
Title 42 U.S.C. § 1983 imposes liability on anyone who, under
color of state law, deprives a person “of any rights, privileges,
or immunities secured by the Constitution and laws.”
To state a
claim under 42 U.S.C. § 1983, a plaintiff must allege that (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).
and
establish
an
In addition, a plaintiff must allege
affirmative
causal
connection
between
defendant’s conduct and the constitutional deprivation.
the
Marsh v.
Butler County, Ala., 268 F.3d 1014, 1059 (11th Cir. 2001); Swint v.
City of Wadley, Ala., 51 F.3d 988, 999 (11th Cir. 1995); Tittle v.
Jefferson County Comm'n, 10 F.3d 1535, 1541 n.1 (11th Cir. 1994).
Here,
Plaintiff
alleges
violations
of
his
First
Amendment rights under the United States Constitution.
and
Eighth
Defendants
do not contest that they were acting under the color of state law.
B.
Exhaustion of Administrative Remedies
The Prison Litigation Reform Act, which amended The Civil
Rights of Institutionalized Persons Act, provides as follows:
-10-
(a) Applicability of administrative remedies.
No action shall be brought with respect to
prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner
confined in any jail, prison, or other
correctional
facility
until
such
administrative remedies as are available are
exhausted.
42 U.S.C. § 1997e(a)(emphasis added).
Although prisoners are not
required to plead exhaustion, Jones v. Bock, 549 U.S. 199, 216
(2007), "[t]here is no question that exhaustion is mandatory under
the PLRA, and that unexhausted claims cannot be brought in court."
Id. at 211; see also Bingham v. Thomas, 654 F.3d 1171, 1175 (11th
Cir. 2011).
To “properly exhaust” administrative remedies a prisoner must
complete the administrative review process, as set forth in the
applicable prison grievance process.
Jones, 549 U.S. at 218.
A
prisoner cannot satisfy the exhaustion requirement by filing an
untimely
or
otherwise
grievance or appeal.
procedurally
defective
administrative
Woodford, 548 U.S. at 92-103.
However, an
administrative remedy that was not discovered, and which could not
have been discovered through reasonable effort, until it was too
late for it to be used is not an “available” remedy.
Lee County, 510 F.3d 1312, 1324 (11th Cir. 2007).
Goebert v.
A remedy is not
available if it is unknown or unknowable because such remedy is not
“capable for use for the accomplishment of a purpose.”
-11-
Id. at
1323.
Inmates are not required to “craft new procedures when
prison officials demonstrate . . . that they will refuse to abide
by the established ones.”
(11th
Cir.
Turner v. Burnside, 541 F.3d 1077, 1083
2008)(citations
omitted).
Additionally,
“[a]n
administrative remedy is not available for purposes of the PLRA .
. . if prison officials render pursuit of the remedy irrational
through serious threats of substantial retaliation.” Cole v. Sec’y
Dep’t of Corr., 451 F. App’x 827, 828 (11th Cir. 2011)(citing
Turner v. Burnside, 541 F.3d 1077, 1084-85 (11th Cir. 2008)).
Whether an inmate has exhausted his available administrative
remedies is a factual issue that is properly made by the court.
Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008).
Thus,
“[e]ven though a failure-to-exhaust defense is non-jurisdictional,
it is like a defense for lack of jurisdiction in one important
sense:
Exhaustion
of
administrative
remedies
is
a
matter
in
abatement, and ordinarily does not deal with the merits.”
Id.
(footnote,
The
internal
quotations,
and
citations
omitted).
defense of exhaustion is properly raised in a motion to dismiss as
a “matter of judicial administration.”
Id. at 1375.
Thus, the
court is permitted to look beyond the pleadings to decide disputed
issues of fact in connection with the exhaustion defense.
1377, n.16.
-12-
Id. at
The Court is not persuaded by Defendants’ arguments that
Plaintiff
failed
to
exhaust
his
administrative
remedies.
Defendants Bostic and Wilson reference the affidavit of Rebecca
Padgham and describe six grievances that Plaintiff filed on appeal
with the Office of the Secretary.
Defendant Bostic argues that
none of Plaintiff’s appellate grievances raise an issue with a
female officer failing to report, or intervene, in Defendant
Austin’s March 31, 2008 assault on Plaintiff.
Mot. Dismiss at 6.
Defendant Wilson argues that Plaintiff did not exhaust his remedies
because Wilson’s name is only mentioned in a grievance regarding
the alleged threat that occurred on March 30, 2009.
Dismiss at 5, 10-17.
Wilson Mot.
Both Defendants argue that an affidavit
Plaintiff attached to one of his grievances on appeal was improper
because the affidavit raised more than one issue or complaint,
contrary to the Department of Correction’s rules.
Mot. Dismiss at
6; Wilson Mot. Dismiss at 6.
Defendants summarize Plaintiff’s inmate grievances filed on
appeal to the Secretary of the Department of Corrections, but fail
to make any of these grievances a part of the record in this case.
The grievances, or inmate request forms, attached to Plaintiff’s
Amended Complaint include one informal grievance filed at the
institutional level on March 23, 2010.
Amended Complaint at 13.
This inmate grievance, which appears to attach an affidavit from
-13-
Plaintiff, addresses the March 29 group beating, the March 30
threats of retaliation by Wilson, the March 31 punch and threats of
retaliation from Austin, and the June 2008 and October 2009 resumed
threats by Austin.
Id.
The institution approved this grievance
and did not deny the grievance for listing more than issue.
Thus,
the Court rejects Defendants’ argument that this grievance was
inadequate because it addressed more than one issue because the
grievance was approved and not rejected on that basis.
To the extent Wilson argues that Plaintiff failed to exhaust
his remedies with respect to the March 29 group beating because his
name was not listed as one of the guards involved in the group
beating,
See
Wilson’s
Amended
requirement
name
Complaint
that
all
does
at
appear
13.
defendants
The
be
elsewhere
named
the
does
PLRA
on
form.
not
include
in
the
grievance.
a
Exhaustion is not inadequate simply because an individual later
sued was not named in the grievances.
The level of detail
necessary in a grievance is governed by the prison’s requirements,
not the PLRA.
Jones, 127 S. Ct. 910, 922-23 (2007); see also Geter
v. Turpin, 2006 WL 2583286 *6 (N.D. Ga. Sept. 6, 2006)(citing Brown
v. Sikes, 212 F.3d 1205, 1208 n. 3 (11th Cir. 2000)).
Defendant
Wilson does not point to any Department rule requiring that each
correctional officer be specifically named in a grievance.
The
general rule under the PLRA is that the grievance need only provide
-14-
administrators with a fair opportunity under the circumstances to
address the problem that will later form the basis of the suit.
The Court finds the informal grievance that prison officials
“approved” sufficiently apprised correctional officials about the
circumstances at issue in the instant action. Further, Plaintiff’s
family contacted correctional officials to apprise officials about
all of the incidents and Plaintiff verbally appraised the Colonel
after the 2009 incidents, which apparently resulted in his transfer
from Charlotte Correctional.
Alternatively,
Plaintiff alleges sufficient
facts
in
the
Amended Complaint to demonstrate that his administrative remedies
were
not
“available.”
According
to
the
Amended
Complaint,
Plaintiff faced threats of retaliation if he filed any grievances
about the incidents.
during
his
Plaintiff claims he was under such fear
incarceration
at
Charlotte
Correctional
contacted his family to contact prison officials.
that
he
Under Turner, a
prisoner must establish that: (1) the threat actually deterred him
from lodging a grievance or pursuing a particular part of the
administrative process; and (2) the threat is one that would so
deter a reasonable inmate of ordinary firmness and fortitude.
at 828 (citing Turner, 541 F.3d at 1085).
Complaint alleges such facts.
Plaintiff
submitted
the
Id.
Here, the Amended
Moreover, the Court notes that
informal
-15-
grievance
and
appellate
grievances, which are attached to the Amended Complaint, in 2010
after
Plaintiff
was
no
Correctional Institution.
longer
incarcerated
at
Charlotte
Based on the current record, the Court
denies Defendants’ respective Motions based on failure to exhaust
administrative remedies.
C.
Heck Bar
Defendants submit that Plaintiff’s claim stemming from the
March 29 group beating is barred by Heck v. Humphrey, 512 U.S. 477,
486-87 (1994) because Plaintiff was found guilty of a discplinary
report stemming from the March 29 incident.
an
exhibit
disciplinary
report
number
Defendants attach as
510-080860,
written
Hoopes, which states:
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 bull[].
You need to take me to jail cracker, I ain’t your boy
today.” I gave inmate Garcia a direct order to continue
to picking 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 [expletive].”
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.
-16-
by
See Exh. B, Mot. Dismiss.
In Heck, the United States Supreme Court held:
[I]n order to recover damages for [an] allegedly
unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a § 1983 plaintiff must
prove that the conviction or sentence has been reversed
on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such
determination, or called into question by a federal
court's issuance of a writ of habeas corpus, 28 U.S.C.
§ 2254. A claim for damages bearing that relationship to
a conviction or sentence that has not been so invalidated
is not cognizable under § 1983.
Thus, when a state
prisoner seeks damages in a § 1983 suit, the district
court must consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his
conviction or sentence; if it would, the complaint must
be dismissed unless the plaintiff can demonstrate that
the conviction or sentence has already been invalidated.
Heck, 512 U.S. at 486-87 (emphasis added)(internal citation and
footnote omitted). The United States Supreme Court has applied the
Heck analysis to actions brought by prisoners who are challenging
disciplinary proceedings in jails.
See Edwards v. Balisok, 520
U.S. 641, 643-649 (1997); Roberts v. Wilson, 2007 WL 4336446 (11th
Cir. 2007).
In Balisok, the plaintiff initiated a § 1983 action alleging
defendants violated his due process rights during a disciplinary
hearing, which resulted in the plaintiff’s loss of good-time
credits.
action
Id. at 643.
was
not
The Balisok Court concluded that a § 1983
cognizable,
even
though
the
plaintiff
was
challenging the procedure and not the result, because a finding in
favor of the plaintiff would “necessarily imply the invalidity of
-17-
the punishment imposed.”
Id. at 648.
The Court held that a
prisoner could not pursue such an action unless the prisoner had
successfully invalidated the disciplinary report.
Id. at 646-68;
see also Wilkinson v. Dotson, 544 U.S. 74 (2005)(finding a state
prisoner’s § 1983 action is barred --absent prior invalidation-- no
matter the relief sought--damages or equitable relief-- no matter
the
target
of
the
prisoner’s
suit--state
action
leading
to
conviction or internal prison proceedings-- if success in that
action would necessarily invalidate prisoner’s confinement).
However, Heck does not apply to all suits challenging prisoner
disciplinary proceedings.
See Muhammad v. Close, 540 U.S. 749,
754-55 (2004); See also Beecher v. Jones, Case No. 3:08-cv-416,
2010 WL 5058555 (N.D. Fla. Oct. 29, 2010)(finding the plaintiff did
not “steer his case” into Heck territory because according to the
complaint “[p]laintiff could have committed all of the acts set
forth in the DR and hearing team decision, yet the manner in which
the chemical agent was applied, the duration of its application,
etc., could still constitute the use of excessive force.”).
In
Muhammad, the Court declined to extend Heck to a prisoner’s § 1983
action claiming a constitutional violation based on his pre-hearing
confinement.
The Court held that this plaintiff’s action did not
challenge the conviction, the disciplinary action, nor did he seek
expungement of the misconduct finding, so it was not “construed as
seeking a judgment at odds with his conviction.”
-18-
Id. at 754-55.
The Court’s determination whether a claim is barred by Heck
turns on the Plaintiff’s allegations.
The Amended Complaint does
not contain many facts surrounding the incident leading up to the
March 29 group beating.
In fact, the Amended Complaint neither
mentions any disciplinary report, nor does it allege the report is
false. Instead, Plaintiff alleges Hoopes, Wilson, and Anthony beat
Plaintiff to the point of unconscious, and then when he returned to
consciousness, he claims he was beat again by Austin, Hoopes,
Anthony, and
Wilson
until
he
lost
consciousness.
While
the
disciplinary report acknowledges that “force” was used to control
Plaintiff’s actions, Plaintiff only challenges the type and amount
of force used on him.
A finding that excessive force was used on
Plaintiff on March 29 when Defendants beat Plaintiff, twice, to the
point of unconsciousness, is not at odds with the disciplinary
finding that Plaintiff used profanity and lunged at Officer Hoopes.
Additionally, there is no indication that the disciplinary report
impacted the length of Plaintiff’s sentence.
Thus, the Amended
Complaint is not Heck barred and the Defendants’ respective Motions
based on Heck are denied.
D.
Failure to Intervene and Failure to Protect
Defendant Bostic argues that she cannot be held liable for
failing to intervene with respect to the March 31 event because,
inter alia, she was not actually present when Defendant Austin
allegedly punched Plaintiff.
Mot. Dismiss at 26.
-19-
If the Court
finds a constitutional violation based on the excessive use of
force, “‘an officer who [was] present at the scene and who fail[ed]
to take reasonable steps to protect the victim of another officer’s
use of force, can be held liable for the nonfeasance.’”
Velazquez
v. City of Hialeah, 484 F.3d 1340, 1341 (11th Cir. 2007)(citing
Skrtich v. Thornton, 280 F.3d 1295, 1302 (11th Cir. 2002))(other
citations omitted). “This liability, however, only arises when the
officer is in a position to intervene and fails to do
so.”
Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 924 (11th
Cir. 2000)(citing Ensley v. Soper, 142 F.3d 1402, 1407 (11th Cir.
1998)).
Indeed, the factual averments in the Amended Complaint allege
that Bostic was escorting Plaintiff back to his cell, but Defendant
Austin told Bostic to bring Plaintiff to him.
Plaintiff then
alleges that Defendant Austin took him into the bathroom where the
alleged incident took place. According to the Complaint, Plaintiff
did not see Bostic again until he returned to his cell.
Based on
the foregoing, the Court finds the Amended Complaint fails to state
a claim as to Defendant Bostic because she was not present and
therefore not in the position to intervene.
However, the Amended Complaint states a failure to protect
claim.
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. Georgia Dep’t of
-20-
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.
Farmer,
511 U.S. at 828. “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.
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
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.
-21-
Id. at 842.
Here, the Amended Complaint alleges that Plaintiff asked
Bostic to delay bringing him through Y-dorm and told Bostic that he
was afraid Lieutenant Austin would hurt or kill him.
Nonetheless,
Bostic complied with Lieutenant Austin’s directive that Bostic
bring Plaintiff to him and leave Plaintiff alone with Lieutenant
Austin.
This resulted in the March 31 punching incident and
additional threats of retaliation.
Thus, the Court will allow the
parties to engage in discovery to determine inter alia: what
transpired during Bostic’s escort of Plaintiff, whether Lieutenant
Austin had a reputation for using excessive force and threats on
inmates of which Bostic was aware, whether Bostic knew of any prior
excessive use of force incidents between Lieutenant Austin and
other
inmates,
or
between
Plaintiff
and
Lieutenant
Austin.
Accordingly, the Motion is denied to the extent Bostic seeks
dismissal.
E.
Retaliation
The Amended Complaint alleges that on March 30, Defendant
Wilson threatened Plaintiff with retaliation if he filed any inmate
grievances regarding the March 29 incident.
Defendant Wilson
argues that the Amended Complaint fails to state a retaliation
claim because Plaintiff was not actually deterred from filing any
grievances because he filed a grievance before Wilson came to his
cell and threatened him.
Wilson Mot. Dismiss at 24-25 (emphasis
added).
-22-
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.
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)).
Here, Defendant Wilson’s argument that the Amended Complaint
fails to state a retaliation claim because Plaintiff had already
filed a grievance before Wilson allegedly threatened Plaintiff with
retaliation, fails to address whether the alleged retaliation
deterred Plaintiff from filing any grievances after the retaliation
occurred.
Plaintiff alleges he was afraid after Wilson threatened
him and had his family contact prison officials.
Additionally, as
previously noted, the inmate grievances attached to Plaintiff’s
Amended Complaint are dated in the year 2010, after Plaintiff left
-23-
Charlotte Correctional Institution.
Moreover, even if Plaintiff
had filed an inmate grievance immediately after Wilson threatened
him with retaliation, the Eleventh Circuit Court of Appeals has
ruled “that a plaintiff need not show that his own exercise of
First Amendment rights have been chilled, but instead a plaintiff
can establish injury if he can show that the retaliatory acts are
sufficiently adverse that a jury could find that the actions would
chill a person of ordinary firmness from exercising his First
Amendment rights.”
Pittman v. Tucker, 213 F. App’x 867, 870
(citing Bennett v. Hendrix, 423 F.3d 1247, 1250-51 (11th Cir.
2005), cert. denied, 549 U.S. 809 (2006)).
Accordingly, Defendant
Wilson’s Motion on the retaliation claim is denied.
F.
Qualified Immunity
In the alternative, Defendants Wilson and Bostic argue that
they are entitled to qualified immunity.
The Amended Complaint
alleges that Wilson was involved in the excessive of force on
Plaintiff on March 29, 2008.
that
on
March
30,
2008,
The Amended Complaint also alleges
Wilson
threatened
Plaintiff
retaliation if he grieved the March 29 incident.
with
The Amended
Complaint alleges that Bostic failed to protect Plaintiff from the
March 31 incident involving Lieutenant Austin.
Based on the current record before the Court, the Court denies
Defendants’ respective Motions based on qualified immunity.
A
qualified immunity defense is not available for excessive use of
-24-
force claims.
In the Eleventh Circuit, “a defense of qualified
immunity is not available in cases alleging excessive force in
violation
of the
Eighth Amendment,
because
the
use
of force
maliciously and sadistically to cause harm is clearly established
to
be
a
violation
of
the
Constitution
decisions in Hudson and Whitley.”
by
the
Supreme
Court
Johnson v. Breeden, 280 F.3d
1308 (11th Cir. 2002); Skrtich v. Thornton, 280 F.3d 1295 (11th
Cir. 2002).
Additionally, it is well established law that prison
officials may not retaliate against inmates for filing inmate
grievances regarding the conditions of their confinement and that
prison officials have a duty to protect prisoners from harm.
Farmer, 511 U.S. 825; Wright v. Newsome, 795 F.2d 964, 968 (11th
Cir. 1968)(per curiam). The only question at this stage is whether
Plaintiff has alleged sufficient facts to survive a motion to
dismiss.
Skrtich, 2002 WL at *2.
The Court concludes that the
facts alleged, as summarized above, survive a motion to dismiss as
to Defendants Bostic and Wilson in their individual capacities.
G.
Reconsideration
On May 21, 2012, Plaintiff filed a Motion for Reconsideration
of the Court’s April 24, 2012 Order dismissing Defendant Hoopes
pursuant to Fed. R. Civ. P. 4(m).
See generally Motion.
entered judgment as to Hoopes that same day.
See
The Court
Doc. #63.
Federal Rule of Civil Procedure 59(e) affords the Court
substantial discretion to reconsider an order which it has entered.
-25-
See Mincey v. Head, 206 F.3d 1106, 1137 (11th Cir. 2000).
"The
only grounds for granting a rule 59 motion are newly discovered
evidence or manifest error of law or fact."
Arthur v. King, 500
F.3d 1335, 1343 (11th Cir. 2007)(citations omitted).
Rule 59 also
provides for relief for an intervening change in law.
Civil Rules Handbook, Rule 59(e)(2012).
intended as
a
vehicle
to
re-litigate
Federal
A Rule 59 motion is not
old
matters,
raise
new
arguments or present evidence that could have been raised prior to
the
entry
of
judgment.
Michael
Linet,
Inc.
v.
Village
of
Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005).
Federal Rule of Civil Procedure 60(b) permits a party to seek
relief from a final judgment under specific circumstances such as:
"mistake, inadvertence, surprise, or excusable neglect."
Civ. P. 60(b)(1).
Fed. R.
Rule 60 also provides for a catchall provision
that permits the Court to grant relief from a final judgment "for
any
other
60(b)(6).
reasons
that
justifies
relief."
Fed.
R.
Civ.
P.
Relief under this provision is "exceedingly rare" and
"does not offer an unsuccessful litigant an opportunity 'to take a
mulligan.'"
Federal Rules Civil Handbook, Rule 60, Reason 6
(quoting Kramer v. Gates, 481 F.3d 788, 792 (D.C. Cir. 2007)).
"Even then, whether to grant the requested relief is a matter for
the district court's sound discretion."
1337,
1342
(11th
Cir.
2006)(quotation
omitted).
-26-
Cano v. Baker, 435 F.3d
and
alteration
marks
In the April 24 Order of dismissal, the Court pointed out that
the U.S. Marshal was directed to attempt service of process on all
defendants on July 20, 2011.
See Order at 1.
On December 16,
2011, the Court entered an order noting that service of process
remained unexecuted on Defendant Hoopes and that Plaintiff had been
notified on or about September 14, 2011 that service of process was
not executed on Hoopes.
Id. (citing Doc. #50 and noting that
service of process was unexecuted because Hoopes no longer worked
for the Florida Department of Corrections).
The Court further
noted that the U.S. Marshal took all reasonable steps to effect
service
on
Defendant
Hoopes,
but
Plaintiff
failed
take
any
additional steps to ensure service of process was executed on
Hoopes.
Id. at 2; see also docket.
In the abundance of caution,
the Court sua sponte gave Plaintiff a fourteen-day extension of
time to re-file completed service of process forms for Defendant
Hoopes.
The Court warned Plaintiff that failure to do so would
result in the dismissal of Hoopes pursuant to Fed. R. Civ. P. 4(m).
Id.
A review of the docket reveals that Plaintiff did not re-file
new service forms for Hoopes during the allotted time, nor did he
seek any additional extensions of time.
See docket.
In the Motion
for Reconsideration, Plaintiff acknowledges that he was aware of
the Court’s December 16, 2011 Order and made three attempts to find
Hoopes’ new address by writing to the Department of Corrections
-27-
Legal Affairs to no avail.
Motion at 2.
Plaintiff acknowledges
that these were his only attempts to find Hoopes address.
3 (emphasis added).
Id. at
Plaintiff states that if the Court had
appointed him counsel, then counsel would have effected service on
Defendant Hoopes.
Id. at 1.
The Court finds the reasons raised in the instant Motion do
not warrant relief under either Fed. R. Civ. P. 59, or Fed. R. Civ.
P. 60.
Court,
Instead of filing a motion, or otherwise notifying the
during
the
extra
Plaintiff remained silent.
time
period
allotted
to
Plaintiff,
Significantly, the record demonstrates
that Plaintiff remains in contact with several family members who
could have assisted Plaintiff in finding an address for Hoopes.
Plaintiff’s family members contacted prison officials on several
other occasions to advise them about the incidents at issue in this
action. Thus, Plaintiff did not require the appointment of counsel
to assist him in finding Hoopes’ address.
At a minimum, Plaintiff
should have filed an appropriate motion with the Court after he
received the Court’s December 16, 2011 Order.
ACCORDINGLY, it is hereby
ORDERED:
1.
The Motion to Dismiss (Doc. #49) filed on behalf of
Defendants Bostic, Anthony, and Austin is GRANTED as to Bostic only
with respect to the failure to intervene claim and is otherwise
DENIED in its entirety.
-28-
2. Defendant Wilson’s Motion to Dismiss (Doc. #58) is DENIED.
3.
Defendants
shall
file
their
Answer
and
Affirmative
Defenses within twenty-one (21) days from the date on this Order.
4.
Plaintiff’s “Motion to Recall Order Reinstate Defendant
Hoopes in Original Complaint to this Court” (Doc. #66), construed
to be a Motion for Reconsideration, is DENIED.
DONE AND ORDERED at Fort Myers, Florida, on this
of September, 2012.
SA: alj
Copies: All Parties of Record
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10th
day
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