Cardenas v. Reid et al
Filing
99
OPINION AND ORDER granting 85 Motion for summary judgment and the case is dismissed with prejudice. The Clerk shall enter judgment in favor of defendants, terminate all pending motions, and close the case. Signed by Judge John E. Steele on 7/17/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PETER CARDENAS,
Plaintiff,
v.
Case No: 2:14-cv-496-FtM-29CM
CAPT. GATTO, SGT. BUSH, SGT.
RIOS, (Sic), OFFICER JONES,
CAPT. WORST, and FNU WARD,
in individual capacity,
Defendants.
OPINION AND ORDER
This matter comes before the Court upon the motion for summary
judgment filed by Defendants Gatto, Bush, Rios, Jones, Ward and
Worst (Doc. 85, filed April 3, 2017).
Plaintiff did not respond
to the motion for summary judgment, and it is now ripe for review.
For the reasons given, the defendants’ motion for summary judgment
is GRANTED.
I.
Background and Procedural History
Plaintiff initiated this action on August 14, 2014 by filing
a pro se civil rights complaint against Defendants Warden Reid,
Captain
Gatto,
Sergeant
Bush,
Sergeant
Rios,
Officer
Jones,
Captain Worst, Inspector General John or Jane Doe, “Any and All
Past/Future Defendant[s],” and FNU Ward.
Id.
Plaintiff’s second
amended complaint against Defendants Gatto, Bush, Rios, Worst,
Jones and Ward is the operative complaint before this Court (Doc.
48).
The defendants filed answers and affirmative defenses to the
second amended complaint (Doc. 68; Doc. 82), and on December 6,
2016, the parties were directed to conduct discovery (Doc. 69).
The defendants filed a motion for summary judgment on April
3, 2017, and attached numerous documents in support of the motion
(Doc. 85).
89).
Plaintiff was directed to respond to the motion (Doc.
Plaintiff was cautioned that: (1) his failure to respond to
the motion would indicate that it was unopposed; (2) all material
facts asserted by the defendants would be considered admitted
unless
controverted
by
proper
evidentiary
materials;
and
(3)
Plaintiff could not rely solely on the allegations of his pleadings
to oppose the motion (Doc. 89) (citing Griffith v. Wainwright, 772
F.2d 822, 825 (11th Cir. 1985)).
Despite the warning and an
extension of time to do so (Doc. 96), Plaintiff did not file a
response to the defendants’ motion for summary judgment.
II.
a.
Pleadings
Second Amended Complaint 1
The relevant allegations against the defendants are directed
towards two separate incidents in which Plaintiff alleges that
excessive
force
was
used
against
him.
Plaintiff
makes
the
following allegations in his second amended complaint:
1
Plaintiff has labeled the operative complaint as the “Third
Amended Complaint” (Doc. 49). However, it is actually the second
amended complaint filed in this action.
Any reference to the
complaint in this order is to docket entry 49.
- 2 -
On December 23, 2013, while housed in the f-dorm of the
Charlotte Correctional Institution, Plaintiff was approached by
Defendants Gatto, Jones, Bush, and Rios (Doc. 49 at ¶ 1).
He was
handcuffed from behind, and his feet were secured by leg irons.
Id.
While being escorted to pre-confinement, Plaintiff was picked
up and slammed to the floor by Defendants Rios and Jones. Id. at
¶ 2.
Defendant Gatto, who was Rios’ and Jones’ supervisor,
instructed Defendants Rios and Jones, “not here in population.
Let’s do this in multiservice.”
Id.
Plaintiff was then picked
up from the floor and escorted to multiservice. Id.
While in multiservice, Defendants Jones and Bush again picked
up Plaintiff and slammed him to the floor (Doc. 49 at ¶ 9).
While
on the floor, Plaintiff was kicked by Defendant Rios and lost
consciousness.
kicking him.
Id.
Id.
“all you niggers.”
When he woke, Defendants Rios and Bush were
Defendant Bush told Plaintiff that he hated
Id.
While escorting Plaintiff to medical, Defendant Gatto told
him that if he reported what happened, he (Defendant Gatto) would
break Plaintiff’s jaw (Doc. 49 at ¶ 6).
refused
medical
treatment,
Plaintiff’s injuries.
Id.
but
January
2,
2014,
Campbell
took
note
of
Plaintiff was subsequently escorted
to y-dorm and placed in a cell.
On
Nurse
As a result, Plaintiff
Id. at ¶ 7.
Plaintiff
was
seen
by
the
medical
department as a result of the statements made in his disciplinary
- 3 -
report (Doc. 49 at ¶ 10).
The nurse recorded Plaintiff’s injuries,
and he was given acetaminophen (Doc. 49-3 at 2-3).
On January 6, 2014, Defendant Jones, who was working in ydorm,
threatened
Plaintiff
with
harm
because
of
statements
Plaintiff made in his disciplinary reports and grievance (Doc. 49
at ¶ 10).
On March 6, 2014, Plaintiff was released from confinement
(Doc. 49 at ¶ 14).
Plaintiff told the dorm sergeant that he needed
protection because he was afraid for his life. Id.
The sergeant
had Plaintiff fill out a form, but later told Plaintiff that
Defendant Worst said that “he won’t allow Plaintiff to check in on
his officers.”
population.
Id.
Id.
Plaintiff was released back in to the general
Plaintiff then went to Defendant Worst’s office
to renew his request for protection, but the request was refused,
and Plaintiff remained in the general population.
Id. at ¶ 17.
On March 12, 2014, Defendant Ward ordered Plaintiff outside
where
he
Defendant
(Plaintiff)
Ward
slammed
was
handcuffed
Plaintiff
to
(Doc.
the
49
ground
at
¶¶
where
18-19).
he
and
Defendant Bush punched Plaintiff’s head and told him that “this is
what you get for writing grievances on us.”
Id. at 20.
Plaintiff
was then escorted to medical where Nurse Campbell recorded his
injuries.
Id. at ¶ 21.
Plaintiff asserts that he suffers a permanent degenerative
disk disorder, scarring, and back pain from the attacks.
- 4 -
Id. at
¶
27.
Plaintiff
also
claims
to
suffer
anxiety,
suspicion,
paranoia, fear and mistrust when it comes to officers.
Id. at ¶
28.
Plaintiff raises the following five claims in his second
amended complaint.
He alleges that:
Defendants
Rios,
Bush,
and
Jones
used
excessive force against him on December 23,
2013 (Claim One);
Defendant Gatto failed to intervene in the
December 23, 2013 use-of-force incident (Claim
Two);
Defendant Jones’ 2 threatened Plaintiff after
he filed a grievance about the December 23,
2013 incident (Claim Three);
Defendant Worst failed to stop the March 2014
use-of-force and refused to keep Plaintiff in
protective custody (Claim Four);
Defendant Ward conspired to retaliate against
him for reporting the December 23, 2013
incident by writing frivolous disciplinary
reports (Claim Five); and
Defendants Bush and Ward assaulted and
battered him on March 12, 2014 (Claim Six).
(Doc. 49 at 6-8).
Plaintiff seeks $600,000 in compensatory and
punitive damages for his physical harm and $400,000 in damages
“for the emotional and distress of Plaintiff caused by their
2
Plaintiff named Defendant Bush as the wrongdoer in Claim
Three (Doc. 49 at 7). However, a review of the facts alleged in
the third amended complaint suggests that Claim Three was actually
directed towards Defendant Jones, and the Court will treat it as
such.
- 5 -
assault and battery and retaliation upon Plaintiff.” (Doc. 49 at
14-15).
b.
Motion for Summary Judgment
The defendants have filed a motion for summary judgment (Doc.
85).
The defendants generally dispute the veracity of Plaintiff’s
statements, and note that, even when force was used to subdue
Plaintiff, it was neither excessive nor unwarranted, but was
applied in a good faith effort to restore order.
Id.
In support of their motion, the defendants filed Plaintiff’s
inmate file, consisting of his disciplinary reports, incident
reports, medical records, and grievances he has submitted (Doc.
85-1; Doc. 85-2; Doc. 85-3; Doc. 85-4).
They also filed: Charlotte
Correctional Institution’s Daily Security Roster for the days at
issue
in
the
second
amended
complaint
(Doc.
85-3
at
11-15,
“Security Roster”); Defendant Frank Gatto’s Affidavit (Doc. 85-4
at 1-4, “Gatto Aff.”); Defendant Michael James Worst’s Affidavit
(Doc. 85-4 at 5-6, “Worst Aff.”); Defendant Johnny Del Rios’
Affidavit (Doc. 85-4 at 7-8, “Rios Aff.”); Defendant Patrick James
Bush’s Affidavit (Ex. 85-4 at 9-11, “Bush Aff.”); Defendant Wesley
Ward’s Affidavit (Doc. 85-4 at 12-13); Officer Reshae Cherry’s
Affidavit (Doc. 85-4 at 14-15, “Cherry Aff.”); Defendant John K.
Jones’
Affidavit
recording
of
(Doc.
85-4
Plaintiff’s
at
16-17,
December
23,
“Jones
2013
Aff.”);
video
post-use-of-force
examination (Doc. 85-5, “December video”); video recording of
- 6 -
Plaintiff’s March 12, 2014 post-use-of-force examination (Doc. 855, “March video”); and Plaintiff Peter Cardenas’ Deposition (Doc.
85-6, “Pff. Depo.”).
III. Standards of Review
a.
Summary Judgment Standard
Summary judgment is appropriate only if it is shown “that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The Supreme Court has explained the summary judgment standard as
follows:
[T]he plain language of Rule 56(c) mandates the
entry of summary judgment, after adequate time
for discovery and upon motion, against a party
who fails to make a showing sufficient to
establish the existence of an element essential
to that party’s case, and on which that party
will bear the burden of proof at trial. In such
a situation, there can be no genuine issue as to
any material fact, since a complete failure of
proof concerning an essential element of the nonmoving party’s case necessarily renders all
other facts immaterial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
may
meet
this
burden
by
presenting
evidence
that
The movant
would
be
admissible at trial indicating there is no dispute of material
fact or by showing that the nonmoving party has failed to present
evidence in support of some elements of its case on which it bears
the ultimate burden of proof.
Celotex, 477 U.S. at 322–324.
- 7 -
If the party seeking summary judgment meets the initial burden
of demonstrating the absence of a genuine issue of material fact,
the burden then shifts to the nonmoving party to come forward with
sufficient evidence to rebut this showing with affidavits or other
relevant and admissible evidence.
1577 (11th Cir. 1991).
Avirgan v. Hull, 932 F.2d 1572,
Summary judgment is mandated “against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.”
477 U.S. at 322, (1986).
Celotex,
Where, as here, a non-moving party does
not controvert the moving party’s assertion of a properly supported
fact, the Court may consider the fact undisputed.
See Fed. R.
Civ. P. 56(d).
b.
Excessive Force
The United States Supreme Court has determined that the “core
judicial inquiry” to state an excessive force claim is “whether
force was applied in a good-faith effort to maintain or restore
discipline,
or
maliciously
and
sadistically
Hudson v. McMillian, 503 U.S. 1, 7 (1992).
to
cause
harm.”
Notably, the absence
of a significant injury does not necessarily defeat an Eighth
Amendment excessive force claim because “[o]therwise, the Eighth
Amendment would permit any physical punishment, no matter how
diabolic or inhuman, inflicting less than some arbitrary quantity
of injury.”
Id. at 9 (Blackmun, J., concurring in judgment).
- 8 -
The
extent
irrelevant.
of
a
plaintiff’s
injuries
is
not,
however,
The extent of the injuries is a factor that suggests
whether an officer believed the force necessary in a particular
situation, and it provides an indication of the amount of force
applied.
See Wilkins v. Gaddy, 559 U.S. 34, 37 (2010).
As noted
by the Supreme Court in Hudson, “not . . . every malevolent touch
by a prison guard gives rise to a federal cause of action.”
Hudson, 503 U.S. at 9.
Rather, a court must consider the following
factors in determining whether force was applied “maliciously and
sadistically” to cause harm: (1) the need for the application of
force; (2) the relationship between the need and the amount of
force used; (3) the extent of the injury inflicted upon the
prisoner; (4) the threat to the safety of staff and inmates posed
by the prisoner; and (5) any efforts made to temper the severity
of a forceful response.
Fennell v. Gilstrap, 559 F.3d 1212 (11th
Cir. 2009).
Finally,
it
is
not
necessary
that
an
officer
actually
participate in the use of excessive force in order to be held
liable under § 1983.
Rather, “an officer who is present at the
scene and who fails to take reasonable steps to protect the victim
of another officer’s use of excessive force, can be held liable
for his nonfeasance.”
Fundiller v. City of Cooper City, 777 F.2d
1436, 1442 (11th Cir. 1985).
- 9 -
c.
First Amendment Retaliation
In Bennett v. Hendrix, 423 F.3d 1247, 1250-51 (11th Cir.
2005), the Eleventh Circuit adopted a three-part test to determine
whether a plaintiff has stated an actionable First Amendment
retaliation claim.
Under the test, a plaintiff must establish:
(1) that his speech or act was constitutionally protected; (2)
that the defendant’s retaliatory conduct adversely affected the
protected speech; and (3) that there is a causal connection between
the retaliatory actions and the adverse effect on speech.
1250.
Id. at
The court held that “[a] plaintiff suffers adverse action
if the defendant’s allegedly retaliatory conduct would likely
deter a person of ordinary firmness from the exercise of [his]
First Amendment rights.”
Id. at 1254.
Accordingly, a plaintiff
need not show that his own exercise of First Amendment rights were
chilled, but instead, can establish an injury if he shows that the
retaliatory acts are sufficiently adverse that a jury could find
that the acts would chill a person of ordinary firmness from
exercising his First Amendment rights.
IV.
a.
Id. at 1254-55.
Analysis
Claims One and Two– Excessive Force (Defendants Rios,
Bush, and Jones) and Failure to Intervene (Defendant
Gatto)
The following facts regarding the December 23, 2013 use-offorce are undisputed:
- 10 -
At approximately 6:10 a.m. on December 23,
2013, Plaintiff, who was housed in Fdormitory, exposed his genitals to Officer
Demel while masturbating. He was charged with
“intentionally committing a sexual act in the
presence of a staff member” (Doc. 85-1 at 34, 11-12);
At approximately 6:15 a.m., Defendants Bush
and Jones removed Plaintiff from the Fdormitory and escorted him to the multiservice building for a pre-confinement medical
examination (Doc. 85-1 at 3-4, 5; Bush Aff. at
¶ 2; Jones Aff. at ¶ 2);
Plaintiff refused to cooperate during the walk
to the multi-service building by moving
around, struggling, and not complying with
orders (Doc. 85-1 at 3; Bush Aff. at ¶ 2).
Plaintiff told Defendants Bush and Jones that
he “was not gunning that hoe and if I did you
know she would eat it up.” Id. Defendants
Bush and Jones used a wrist-lock technique to
shift Plaintiff’s weight forward and force him
to continue walking (Bush Aff. at 1-2);
Plaintiff was not in leg restraints during the
walk (Gatto Aff. at 3; December video);
The December 23, 2013 event occurred during
morning chow.
Defendant Gatto normally
stands in the yard near the multi-service
building during the time the use-of-force was
alleged to have happened, and he did not
observe anyone use force against Plaintiff on
that morning (Gatto Aff. at 2; Bush Aff. at 2
(attesting that Gatto was not present during
Plaintiff’s
escort
to
the
multiservice
building)).
In the multi-service building, Plaintiff was
still combative.
Defendants Jones and Bush
used force to place Plaintiff in a sitting
position, and then to eventually pin him to
the floor to prevent him from banging his head
on the floor (Gatto Aff. at ¶ 14; Doc. 85-1 at
3-6; Bush Aff. at 2);
- 11 -
At approximately 6:19 a.m., Defendants Bush
and Jones were relieved by Defendant Rios and
Officer Larson who assisted Plaintiff to his
feet
and
escorted
him
to
the
medical
department for a post use-of-force examination
(Doc. 85-1 at 3-6; December video; Gatto Aff.
at 2; Rios Aff. at 2);
Any officer involved in a use of force
incident is not assigned escort duty (Doc. 851 at 3-6; December video; Gatto Aff. at 2);
Defendant Gatto was notified or responded from
the yard with Lieutenant Nye after force was
used in the multiservice building (Doc. 85-1
at 1-2). At 6:23 a.m., Defendant Gatto began
filming Plaintiff’s post use-of-force exam
(December video).
In the video, Defendant
Gatto states that the use-of-force involved
only Defendants Bush and Jones (December
video);
During the altercation, Plaintiff suffered a
wound on the left side of his head (Ex. A at
7-8; December video). A small amount of blood
is visible on the left collar of Plaintiff’s
white t-shirt.
However, Plaintiff shows no
other signs of injury (December video)
Plaintiff refused medical treatment. The
examining nurse wrote in her notes that she
was unable to determine the source of the
blood on Plaintiff’s forehead because he
refused to allow her to do so. Plaintiff also
refused to make a statement or phone call
(December video; Doc. 85-1 at 8, 19);
Plaintiff was found guilty of lewd
lascivious behavior (Doc. 85-1 at 20);
and
On January 2, 2014, Plaintiff filed a
grievance about the December 23, 2013 use-offorce, and as a result, he was examined by the
nurse on that date (Doc. 85-3 at 18-19). The
only injuries found during the exam were a 1/3
inch old abrasion on Plaintiff’s forehead and
a one-inch old abrasion on Plaintiff’s
shoulder. Id.
- 12 -
1.
Defendants Rios and Gatto are entitled to summary
judgment on Claims One and Two
Defendant
Rios
has
presented
evidence
in
the
form
of
affidavits and the December video showing that he was not present
during the use-of-force against Plaintiff on December 23, 2017.
Likewise, Defendant Gatto has presented evidence that he was not
involved in the December use-of-force until after it had concluded.
The
defendants
have
entered
evidence
showing
that
neither
Defendant Rios nor Defendant Gatto interacted with Plaintiff on
that date until after he was restrained by Defendants Bush and
Jones
in
the
multi-service
building.
The
video
(taken
by
Defendant Gatto) shows Officer Rios escorting Plaintiff to the
medical department, and no use of force by any officer is shown on
the video.
Plaintiff has not addressed the evidence regarding Defendant
Rios’
or
Defendant
Gatto’s
absence
during
the
use-of-force
incident on December 23, 2013, and the Court will consider the
fact of their absence as undisputed. Fed. R. Civ. P. 56(e)(2). 3
3
Although Plaintiff asserted in his second amended complaint
that Defendant Rios was present during the December use of force,
he has produced nothing to refute the defendants’ evidence
otherwise. It was explained to Plaintiff in the Summary Judgment
Notice (Doc. 89) that a properly supported motion for summary
judgment results in the inability of the plaintiff to rely on his
complaint alone.
Plaintiff was provided an opportunity for
discovery, but has offered no evidence or statement in opposition
to the defendants’ evidence or properly supported statement of
material facts regarding Rios’ or Gatto’s presence at the December
use-of-force incident. In fact, Plaintiff has offered no response
- 13 -
Accordingly, it is undisputed that Defendant Rios was not involved
in the use-of-force against Plaintiff on December 23, 2013, and he
is entitled to summary judgment on Claim One.
Likewise, because
it is undisputed that Defendant Gatto was not present during
Defendants Bush’s and Jones’ use of force against Plaintiff,
Defendant Gatto was not in a position to intervene, and he is
entitled to summary judgment on Claim Two. 4
2.
Defendants Bush and Jones are entitled to summary
judgment on Claim One
To determine whether the force used by Defendants Bush and
Jones
was
such
that
it
“shocks
the
conscious,”
and
violated
Plaintiff’s Eighth Amendment rights, the Court will address the
factors set forth in Fennell v. Gilstrap.
to the defendants’ motion for summary judgment. See Adickes v.
S. H. Kress & Co., 398 U.S. 144, 161 (1970) (“It has always been
perilous for the opposing party [in a motion for summary judgment]
neither to proffer any countering evidentiary materials nor file
[an opposing affidavit.]”); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 257 (1986) (“[T]he plaintiff must present affirmative
evidence in order to defeat a properly supported motion for summary
judgment. This is true even where the evidence is likely to be
within the possession of the defendant, as long as the plaintiff
has had a full opportunity to conduct discovery.”).
4
As noted in the Court’s discussion of the excessive force
claims against Defendants Bush and Jones, the undisputed evidence
shows
that
the
force
used
against
Plaintiff
was
not
constitutionally excessive. See discussion infra Part IV(a)(2).
Accordingly, Defendant Gatto would be entitled to summary judgment
on Plaintiff’s failure to intervene claim even had Plaintiff
presented evidence showing that Defendant Gatto was present when
force was used on December 23, 2013.
- 14 -
i.
The need for the application of force
Plaintiff asserts in his second amended complaint that he was
approached by Defendants Gatto, Jones, Bush, and Rios, handcuffed
and placed into leg irons (Doc. 49 at 6).
He asserts that he was
then slammed to the floor by Defendants Rios and Jones, both
outside and inside the multi-service building while Defendant
Gatto
watched.
Id.
at
9.
However,
it
is
undisputed
that
Plaintiff was not placed in leg restraints as he alleges in his
second amended complaint and that neither Defendant Rios nor
Defendant Gatto were present during Plaintiff’s initial encounter
with the defendants on December 23.
It is also undisputed that
Plaintiff was initially restrained because he exposed his genitals
to another officer and that he struggled with Defendants Jones and
Bush as they attempted to escort him to the multi-service building
for a pre-confinement physical.
Defendants Jones and Bush admit
to using a “wrist-lock” technique on Plaintiff to force him to
walk forward.
See Lee v. Hefner, 136 F. App’x 807, 813 (6th Cir.
2005) (noting that the wrist lock is a low level of force with
minimal probability of injury).
When Plaintiff reached the multi-service building, it is
undisputed that he attempted to bang his head on the ground, and
Defendants Jones and Bush placed him in a prone position until
Defendant Rios and Officer Larson arrived.
Under the undisputed
facts presented here, it was reasonable for Defendants Bush and
- 15 -
Jones to believe that force was necessary to restrain Plaintiff—
both during the walk to the multi-service building, and after they
arrived.
See Campbell v. Sikes, 169 F.3d 1353, 1374–77 (11th Cir.
1999) (recognizing that use a restraint device was permissible on
a prisoner who had taken affirmative acts towards harming herself
and posed a serious threat of further self-harm).
ii.
As
resisted
noted,
The relationship between the need and the amount
of force used
the
walking
to
undisputed
the
evidence
multi-service
shows
that
building;
Plaintiff
continued
to
struggle with Defendants Bush and Jones when they arrived; and
needed to be restrained to prevent him from banging his head on
the floor of the multi-service building.
The defendants’ use of
the low-level wrist lock technique and their decision to force
Plaintiff to the ground to prevent him from banging his head on
the floor suggests that the particular force used was neither
malicious nor sadistic, but rather “a good faith effort to maintain
or restore discipline in a difficult situation.”
Fennell v.
Gilstrap, 559 F.3d 1212, 1219 (11th Cir. 2009) (citing Cockrell v.
Sparks, 510 F.3d 1307, 1312 (11th Cir. 2007)).
Moreover, Defendants Bush and Jones initially encountered
Plaintiff at the dormitory at 6:15 a.m. and were relieved by
Defendant Rios and Officer Larson only four minutes later, with a
medical exam attempted at 6:20 a.m.
- 16 -
Accordingly, any force used
was
short-lived;
suggesting
a
conclusion
that
the
force
was
appropriately calibrated to the threat posed by Plaintiff.
iii. The extent of the injury inflicted
Here, it is undisputed that only sign of a wound noted by the
nurse immediately after the December use-of-fore incident was
blood on Plaintiff’s forehead, and the December video shows only
a penny-size drop of blood on Plaintiff’s otherwise white t-shirt.
During the video, Plaintiff does not demonstrate any tenderness,
soreness, or difficulty moving or raising his hands above his head
(December video).
Immediately after the use of force, Plaintiff
refused treatment for his injuries.
However, only ten days after
the December 23, 2013 use-of-force, Plaintiff filed a grievance,
and in response, a medical exam was performed.
The only injuries
found during the exam were a very small abrasion on Plaintiff’s
forehead and a one-inch old abrasion on Plaintiff’s shoulder.
As noted, the core inquiry in an excessive force claim is not
the quantum of injury sustained; however, the extent of an injury
provides an indication of the amount of force applied.
559 U.S. at 37.
Wilkins,
In the instant case, the minimal injury suffered
by Plaintiff suggests that only a modicum of force was used.
iv.
The extent of the threat to the safety of staff and
inmates
Plaintiff has not disputed the evidence from the defendants
that he was struggling during his walk from the dormitory to the
- 17 -
multi-service building and that when he reached the building,
Plaintiff attempted to bang his head on the floor.
Therefore, it
was not unreasonable for Defendants Bush and Jones to believe that
Plaintiff
posed
a
threat
to
his
own
safety
if
he
remained
unrestrained.
v.
Any efforts made
forceful response
Immediately
after
Plaintiff
to
temper
was
the
taken
severity
to
the
of
ground
a
by
Defendants Bush and Jones, Defendant Rios and Officer Larson were
summoned to escort Plaintiff to a post use-of-force medical exam.
In Cockrell, the Eleventh Circuit determined that the fact that
officers immediately summoned medical assistance for an injured
inmate was strong evidence that there was no malicious or sadistic
purpose in the use of force. 510 F.3d at 1312.
Likewise, the
immediate offer of medical assistance to Plaintiff shows an effort
to temper the severity of the force used by the defendants.
See
Fennell, 559 F.3d at 1220.
Considering all the factors, the undisputed evidence shows
that the force used against Plaintiff by Defendants Bush and Jones
on December 23, 2013 did not shock the conscience and was applied
in a good faith effort to maintain discipline.
at 7.
Hudson, 503 U.S.
Accordingly Defendants Bush and Jones are entitled to
summary judgment on Claim One.
- 18 -
b.
Claim Three – Verbal Threat
Retaliation (Defendant Jones)
and
First
Amendment
Plaintiff asserts that:
On January 6, 2014, Defendant Jones who was
working in y-dorm threatened Plaintiff because
Plaintiff made a statement on the disciplinary
report and filed a grievance and stated, “if
you come back on the compound I’ll hurt you
again.”
(Doc. 49 at 10).
First, any stand-alone claim of a verbal threat
is due to be dismissed for failure to state a claim on which relief
may be granted.
Plaintiff does not allege that Defendant Jones
actually carried out his alleged threat in any manner.
Verbal
abuse alone is insufficient to state a constitutional claim.
Hernandez v. Fla. Dep’t of Corr., 281 F. App’x 862, 866 (11th Cir.
2008) (citing Edwards v. Gilbert, 867 F.2d 1271, 1274 n.1 (11th
Cir. 1989)).
Next, Defendant Jones is entitled to summary judgment on any
First
Amendment
retaliation
claim
raised
in
Claim
Three.
Defendant Jones attests that he was not present in the y-dormitory
on the date of the alleged threat and that he did not threaten
Plaintiff at any time (Jones Aff. at 2).
The Daily Security Roster
shows that Defendant Jones was not working in the y-dorm on the
date Plaintiff asserts he made the alleged threat (Doc. 85-3 at
13).
Defendant Gatto attests that security protocol at the prison
would not allow an officer to “simply show up” at an unassigned
dormitory (Gatto Aff. at 3).
Plaintiff has not refuted the
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evidence showing that Defendant Jones was not in the y-dorm on the
date alleged, and as a result, could not have threatened Plaintiff.
Nor has he presented evidence disputing Defendant Jones’ denial
that he threatened Plaintiff at any time.
Accordingly, Defendant
Jones is entitled to summary judgment on Claim Three.
c.
Claims Four and Six – Failure to Protect (Defendant
Worst) and Excessive Force (Defendant Ward and Defendant
Bush)
The following facts regarding the March 12, 2014 use-of-force
incident are undisputed:
Officer Rashae Cherry was present in the
officer’s station of the F-Dormitory when
Plaintiff exposed his genitals to her while
masturbating (Cherry Aff. at ¶ 2; Bush Aff. at
at ¶ 2; Doc. 85-2 at 9);
Officer Cherry called Defendant Ward to report
the incident (Cherry Aff. at ¶ 2; Bush Aff. at
at ¶ 2; Ex. 85-2 at 1, 9);
Defendant Ward took Plaintiff outside of the
dormitory to counsel him about his conduct at
5:59 a.m. (Doc. 85-2 at 1).
Officer Cherry
knew that Plaintiff had a reputation as a
“volatile
and
violent
inmate,”
so
she
continued to watch Plaintiff while he was with
Defendant Ward (Cherry Aff. at ¶ 2; Ex. 85-2
at 1);
While they were outside, Plaintiff took a
“hook swing” at Defendant Ward (Cherry Aff. at
¶ 2; Bush Aff. at ¶ 2; Ex. 85-2 at 1);
Thereafter, Defendant Ward used force to
restrain Plaintiff until Officers Lovett and
Kelly arrived at 6:01 a.m., and these officers
escorted
Plaintiff
to
the
multiservice
building (Cherry Aff. at ¶ 2; Bush Aff. at at
¶ 2; Gatto Aff. at 3; March video; Ex. 85-2 at
1);
- 20 -
At 6:04 a.m. Defendant Gatto initiated the
hand-held video camera (Doc. 85-2 at 2, March
video);
Thereafter, Plaintiff was examined by Nurse
Campbell, and no injuries were reported (Ex.
85-2 at 3-6; March video);
Defendant Bush was not involved in the
incident, nor was he present in F-Dormitory on
that day because he was assigned to Dormitory
G on March 22, 2014 (Security Roster; Ward
Aff. at ¶ 2; Cherry Aff. at ¶ 2; Bush Aff. at
3; March video);
On March 13, 2014, Defendant Ward wrote an
incident report regarding his altercation with
Plaintiff (Doc. 85-2 at 1);
Plaintiff was found guilty of attacking
Defendant
Ward,
and
was
sentenced
to
disciplinary confinement (Doc. 85-2 at 11);
On March 13, 2014, Officer Cherry wrote an
incident report about Plaintiff’s lewd and
lascivious behavior (Doc. 85-2 at 9); and
Plaintiff’s disciplinary report for lewd and
lascivious behavior was overturned on a
technicality because it failed to list the
specific rule violated (Doc. 85-2 at 7).
1.
Defendant
Defendant Bush is entitled to summary judgment on
Claim Six
Bush
has
offered
evidence
in
the
form
of
the
security roster, witness affidavits, and the March post use-offorce video showing that he was not involved in the March 12, 2014
use-of-force.
Plaintiff
has
not
addressed
the
defendants’
evidence regarding Defendant Bush’s absence, and the Court will
consider the fact of his absence as undisputed. Fed. R. Civ. P.
- 21 -
56(e)(2).
Accordingly, Defendant Bush is entitled to summary
judgment on Claim Six.
2.
Defendant Ward is entitled to summary judgment on
Claim Six and Defendant Worst is entitled to
summary judgment on Claim Five
To determine whether the force used by Defendant Ward violated
Plaintiff’s Eighth Amendment rights, the Court will again address
the factors set forth in Fennell v. Gilstrap.
i.
The need for the application of force
Plaintiff asserts in his second amended complaint that he was
paged to the prison sally port by Defendant Ward, ordered to go
outside,
and
after
Plaintiff
put
his
hands
behind
his
back,
Defendant Ward grabbed the back of Plaintiff’s shirt and slammed
him to the ground (Doc. 49 at 12).
However, it is undisputed that Plaintiff was summoned to the
sally port because he exposed himself to Officer Cherry, and that
Plaintiff was angry as a result (Doc. 85-2 at 1).
In addition,
Defendant Ward has offered undisputed evidence in the form of
witness affidavits that Plaintiff attempted to strike Defendant
Ward prior to the use of force.
Thus, it was reasonable for
Defendant Ward to believe that force was necessary to restrain
Plaintiff under the facts presented here.
See
Burke v. Bowns,
653 F. App’x 683 (11th Cir. 2016) (officers had “significant need”
to bring hostile prisoner under control); Bennett v. Parker, 898
F.2d 1530, 1533 (11th Cir. 1990) (“Prison guards may use force
- 22 -
when
necessary
to
restore
order
and
need
not
wait
until
disturbances reach dangerous proportions before responding.”).
ii.
The relationship between the need and the amount
of force used
The undisputed evidence shows that Plaintiff attempted to
strike Defendant Ward prior to the use of force.
Defendant Ward’s
decision to force Plaintiff to the ground and hold him there until
Officers Lovett and Kelly arrived suggests that the particular
force used by Defendant Ward was not malicious or sadistic, but
rather applied in a good faith effort to maintain or restore
discipline in a difficult situation.
Moreover, Defendant Ward
initially encountered Plaintiff at 5:59 a.m. and was relieved by
Officers Lovett and Kelly only two minutes later—supporting a
conclusion
that
the
force
was
short-lived,
and
appropriately
calibrated to the threat posed by Plaintiff.
iii. The extent of the injury inflicted
Here, it is undisputed that Plaintiff suffered no injury from
the March use-of-force.
Plaintiff does not assert otherwise, and
the only injury noted in Nurse Campbell’s report is a “healing
superficial scratch to back of neck.” (Doc. 85-2 at 3).
iv.
The extent of the threat to the safety of staff and
inmates
It is undisputed that Plaintiff attempted to strike Defendant
Ward prior to the defendant’s use of force.
- 23 -
Therefore, it was not
unreasonable for Defendant Ward to believe that Plaintiff posed a
substantial threat to his safety if he remained unrestrained.
v.
Any efforts made
forceful response
Immediately
after
Plaintiff
to
temper
was
taken
the
to
severity
the
of
ground
a
by
Defendant Ward, Officers Lovett and Kelly were summoned to escort
Plaintiff to the medical department.
The immediate offer of
medical assistance shows an effort to temper the severity of the
use of force.
See Fennell, 559 F.3d at 1220.
Considering all the factors, the undisputed evidence shows
that the force used against Plaintiff by Defendant Ward on March
12, 2014 did not shock the conscience and was applied in a good
faith effort to maintain discipline.
Hudson, 503 U.S. at 7.
Accordingly Defendant Ward is entitled to summary judgment on Claim
Six.
Because Defendant Ward is entitled to summary judgment on
Claim Six, Defendant Worst had no duty to intervene and is also
entitled to summary judgment on Claim Four.
d.
Claim Five – Retaliation (Defendant Ward)
Plaintiff asserts that Defendant Ward retaliated against him
“by writing frivolous disciplinary reports on Plaintiff” because
he filed grievances about the December 23, 2013 use of force by
Defendant Bush and Jones (Doc. 48 at 8).
Presumably, Plaintiff
refers to the March 13, 2014 incident reports written by Officer
- 24 -
Cherry and Defendant Ward in response to: (1) Plaintiff exposing
his genitals to Officer Cherry on March 12, 2014 (Doc. 85-2 at 9);
and (2) Plaintiff’s altercation with Defendant Ward on March 12,
2014 (Doc. 85-2 at 1).
The defendants have offered undisputed evidence showing that
Officer Cherry, not Defendant Ward, wrote the disciplinary report
regarding Plaintiff’s March 12, 2014 lewd and lascivious behavior
(Doc. 85-2 at 9).
Accordingly, Plaintiff cannot predicate his
retaliation claim against Defendant Ward based upon a disciplinary
report written by a non-defendant.
The defendants have also offered evidence showing that the
March
12,
2014
use-of-force
behavior, and was not frivolous.
was
instigated
by
Defendant’s
See discussion supra.
Plaintiff
was found guilty of the actual behavior underlying the alleged
retaliatory false disciplinary report, precluding a retaliation
claim based upon that report.
See O’Bryant v. Finch, 637 F. 3d
1207, 1215 (11th Cir. 2011)(holding that a prisoner “cannot state
a claim of retaliation for a disciplinary charge involving a prison
rule infraction when the inmate was found guilty of the actual
behavior underlying that charge after being afforded adequate due
process”). 5
5
Plaintiff does not assert that he was denied due process at
any disciplinary hearing.
- 25 -
Given the undisputed evidence, no rational juror could find
that
the
March
13,
2014
incident
reports
retaliation for Plaintiff’s grievances.
Claims Four and Six.
were
written
in
See discussion supra
Defendant Ward is entitled to summary
judgment on Claim Five.
V.
Conclusion
In accordance with the foregoing, it is hereby ORDERED:
1.
The motion for summary judgment filed by Defendants
(Doc. 85) is GRANTED.
With no remaining defendants or claims,
this case is dismissed with prejudice.
2.
The Clerk of Court is directed to terminate any pending
motions, close this case, and enter judgment in favor of the
defendants.
DONE and ORDERED in Fort Myers, Florida on this
of July, 2017.
SA: OrlP-4
Copies: All Parties of Record
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17th
day
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