Reid v. McNeal et al

Filing 30

ORDER granting 14 Motion for summary judgment, with directions to the Clerk to close the case. Signed by Judge Marcia Morales Howard on 8/8/2011. (BL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

CLIFFORD LEON REID,
Plaintiff,
v.

Case No. 3:09-cv-1283-J-34MCR

WALTER A. MCNEIL, etc.;
et al.,
Defendants.
ORDER
I. Status
Plaintiff Clifford Leon Reid, an inmate of the Florida penal
system proceeding pro se and in forma pauperis, initiated this
action by filing a Civil Rights Complaint Form (Doc. #1) under 42
U.S.C. § 1983 on December 21, 2009, pursuant to the mailbox rule.
Plaintiff is now proceeding on his March 10, 2010 Amended Complaint
(Doc. #8) with exhibits (P. Ex.), in which he names the following
individuals as Defendants: (1) Walter A. McNeil, the Secretary of
the Florida Department of Corrections (FDOC) at the time; (2) Larry
Henderson,

a

physician's

assistant

at

Hamilton

Correctional

Institution (HCI); and (3) Tamey Mullinax, a security officer at

HCI.

Plaintiff makes the following claims: Defendant Henderson

sexually assaulted Reid on March 19, 2008, and sexually harassed
him and wrote a false disciplinary report on March 20th; Defendant
Mullinax allowed Henderson to assault Reid on March 19th; and
Defendant McNeil was deliberately indifferent to Reid's health and
safety needs.

As relief, Plaintiff seeks monetary damages and

injunctive relief.
This cause is before the Court on Defendants McNeil, Mullinax,
and Henderson's Motion for Summary Judgment (Doc. #14; Motion) with
exhibits (Def. Ex.).

Since Plaintiff is appearing pro se, the

Court advised him of the provisions of Fed. R. Civ. P. 56 and gave
him an opportunity to respond to the motion.

See Order of Special

Appointment; Directing Service of Process Upon Defendants and
Notice to Plaintiff (Doc. #9) (setting forth the provisions of Rule
56 of the Federal Rules of Civil Procedure), filed May 26, 2010.
On December 13, 2010, Plaintiff filed a Response to Summary
Judgment Motion (Doc. #22; Response) with exhibits (P. SJ. Ex.).
This case is now ripe for review.
II.

Summary Judgment Standard

Under Rule 56, Federal Rules of Civil Procedure, "[t]he court
shall grant summary judgment 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."

Fed. R. Civ. P. 56(a).

The

record to be considered on a motion for summary judgment may

- 2 -

include "depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers, or
other materials."

Rule 56(c)(1)(A).1

An issue is genuine when the

evidence is such that a reasonable jury could return a verdict in
favor of the nonmovant.

See Mize v. Jefferson City Bd. of Educ.,

93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville
Sun Publ'g Co., 9 F.3d 913, 919 (11th Cir. 1993)).

"[A] mere

scintilla of evidence in support of the non-moving party's position
is insufficient to defeat a motion for summary judgment." Kesinger
ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th
Cir. 2004).

The party seeking summary judgment bears the initial

burden of demonstrating to the court, by reference to the record,
that there are no genuine issues of material fact to be determined
at trial.

See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608

(11th Cir. 1991).

1

Rule 56 was revised in 2010 "to improve the procedures for
presenting and deciding summary-judgment motions."
Rule 56
advisory committee's note 2010 Amendments.
The standard for granting summary judgment
remains unchanged. The language of subdivision
(a) continues to require that there be no
genuine dispute as to any material fact and
that the movant be entitled to judgment as a
matter of law. The amendments will not affect
continuing development of the decisional law
construing and applying these phrases.
Id.
Thus, case law construing the former Rule 56 standard of
review remains viable and is applicable here.
- 3 -

"When a moving party has discharged its burden, the non-moving
party must then go beyond the pleadings, and by its own affidavits,
or by depositions, answers to interrogatories, and admissions on
file, designate specific facts showing that there is a genuine
issue for trial."

Jeffery v. Sarasota White Sox, Inc., 64 F.3d

590, 593-94 (11th Cir. 1995) (internal citations and quotation
marks omitted).

Substantive law determines the materiality of

facts, and "[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude
the entry of summary judgment."
477 U.S. 242, 248 (1986).

Anderson v. Liberty Lobby, Inc.,

In determining whether summary judgment

is appropriate, a court "must view all evidence and make all
reasonable inferences in favor of the party opposing summary
judgment."

Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.

1995) (citing Dibrell Bros. Int'l, S.A. v. Banca Nazionale Del
Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994)).
III. Plaintiff's Allegations and Claims
Plaintiff Reid, a wheelchair bound inmate, asserts that the
Defendants violated his Eighth Amendment right to be free from
cruel and unusual punishment. Reid claims that, on March 19, 2008,
Defendant Henderson verbally, sexually, and physically assaulted
him.

He alleges that Henderson, during an attempt to perform a

medical examination, directed an inmate orderly to help remove Reid
from his wheelchair, assist Reid in standing up, and turn Reid

- 4 -

around so that Reid's back side was placed against the front of
Henderson's body.
support,

Reid

As Henderson held Reid under both arms for

immediately

felt

Henderson's

"hard

penis

press

between his clothed butt-cheek[s] and into [his] anus" three times
until Reid's legs bent and lowered him away from Henderson's
thrusting movements.

Amended Complaint at 15; P. Ex. E at 15.

According to Reid, Henderson then released his hold on Reid,
letting Reid fall to the floor.

P. Ex. A.

Reid's body onto the examination table.

Henderson then "threw"

P. Ex. E at 15.

Reid asserts that Henderson's actions were in the presence of
Carl Mirale (a black inmate assistant), and nurses "who could see
everything by looking threw [sic] the large window of Defendant
Henderson's Office door . . . ."
E.

Amended Complaint at 15; P. Ex.

As a result of the March 19th incident, Henderson wrote a

disciplinary report against Reid the following day, March 20th, and
sexually harassed Reid by forcing him to completely disrobe and
making verbal remarks that he wanted to see Reid's buttocks.

Reid

asserts

stop

that

Defendant

Mullinax

failed

to

intervene

to

Henderson's assault on Reid and that Defendant McNeil, aware of a
pattern of abuse at HCI, was deliberately indifferent to Reid's
health and safety needs.

- 5 -

IV. Defendants' Motion for Summary Judgment
In support of the Motion for Summary Judgment, Defendants
submitted the FDOC Inspector General's Report of Investigation
(Report) relating to Reid's allegations of abuse. Def. Ex. A. The
"Summary of Disposition" section of the Report states that, based
on

the

witnesses'

statements

refuting

Reid's

testimony,

the

evidence obtained in the investigation is insufficient to support
Reid's sexual misconduct allegations. Def. Ex. A. The Report sets
forth findings in support of that conclusion:
Captain Washington submitted an incident
report[2] on March 26, 2008, indicating he
received a witness statement form[3] from
Inmate Reid alleging he had been abused.
Inmate Reid indicated in the witness statement
form that on March 19, 2008, Mr. Henderson
called him for an examination where he and
Inmate Miles stood him up and turned his back
towards the front of Mr. Henderson's body.
Mr. Henderson began to thrust him with his
lower body in his butt. Mr. Henderson then
let him fall to the floor. (Exhibit A-l & A2)
In his sworn, digitally recorded interview on
Apri1 15, 2008 Inmate Reid, Clifford DC
#111123 indicated:
On March 19, 2008, he was called to
medical to see Clinical Associate
Larry Henderson. Once Inmate Reid
was in the medical office, Mr.
Henderson asked, "What is this about
you
can't
work?"
Inmate
Reid

2

3

See Def. Ex. A7, Incident Report.
See Def. Exs. A8, Reid's Statement, dated March 25, 2008;

B6.
- 6 -

explained to Mr. Henderson that he
had been issued a no work pass and a
daily assisted pass. Mr. Henderson
advised a white female officer
(later identified as Mullinax) that
he wanted her to be a witness
because he was going to stand Inmate
Reid up and drop him. The female
officer left the area to go get an
orderly. Upon the arrival of the
orderly, he and Mr. Henderson lifted
Inmate Reid out of the wheel chair.
Mr. Henderson instructed the orderly
to turn Inmate Reid's back side to
his (Henderson's) front side. Mr.
Henderson held Inmate Reid in a
standing
position
and
began
"humping" (thrusting his pelvis)
Inmate Reid from behind. Inmate Reid
indicated that he could feel Mr.
Henderson's erection every time he
"humped" him. Inmate Reid said Mr.
Henderson "humped" him at least
three times before he dropped him to
the floor. Inmate Reid told Mr.
Henderson, "this is not how an
examination is supposed to be
conducted and you are not putting me
on the table, I refuse, I want to be
put back in my wheelchair, I refuse
the
examination!"
Inmate
Reid
alleged
that
Mr.
Henderson
responded, "No you're not going to
refuse, we are going to get you up
on this table." Mr. Henderson
instructed the inmate orderly to
lift Inmate Reid's legs while he
(Henderson) lifted Inmate Reid by
the arms. Mr. Henderson then threw
Inmate Reid up on the table and
twisted him sideways. Inmate Reid
indicated he had been written a
corrective consultation for failure
to make his bunk and clean his sink
properly. Inmate Reid indicated he
grieved the corrective consultation
because of his possession of the
medical passes. (Exhibit B-1)
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Inmate Reid was shown a photo of Inmate
Meyers,
Edson
(W/M)
DC
#Y08492
and
subsequently denied that he was the inmate who
assisted Mr. Henderson. Inmate Reid was
adamant that the inmate who assisted Mr.
Henderson was black and had a name of Miles or
Meyers. A search of the DC web was conducted
and Inmate Reid positively identified Inmate
Carl
Meyers
(B/M)
DC
#652815
as
Mr.
Henderson's assistant.
Inmate Reid's emergency room record was
reviewed and it was revealed that he told
Senior Registered Nurse J. Bunting, "When I
was seeing the doctor he thrust his hips at my
butt. My pants were on and his pants were on.
There was no skin to skin contact or anal
penetration. I have no injuries."[4]
Nurse
Bunting documented Inmate Reid had no signs of
trauma, no bruising, no swelling, and no
scratches.[5]
(Exhibit A-3)
In his sworn, digitally recorded interview on
April 16, 2008, Inmate Myers, Carl DC #652815
indicated:
He
had
no
knowledge
of
this
incident. Inmate Meyers denied being
present at the medical building on
March 19, 2008 or witnessing the
alleged incident. He also denied
knowing any inmate named Clifford
Reid. Inmate Meyers indicated he is
currently assigned to inside grounds
and has been since he arrived at
Hamilton C.I.- Annex. (Exhibit B-1)
In her sworn, digitally recorded interview on
May
14,
2008,
Officer
Mullinax,
Tamey
indicated the following:

4

See Def. Ex. A9, Emergency Room Record.
5

See Def. Exs. A9 ("No signs of trauma, no bruising, no
scratches - which coincides with inmate[']s report of no injury");
A10, Diagram of Injury (indicating "[n]o injury identified").
- 8 -

She was present in medical on March
19, 2008, and Mr. Henderson summoned
for her to be a witness of the
examination.
Officer
Mullinax
witnessed Mr. Henderson encouraging
Inmate Reid to stand up.
Officer
Mullinax
indicated
that
she
witnessed a white inmate (she could
not positively identify the inmate)
assist Inmate Reid out of the wheel
chair to a standing position. She
indicated
the
inmate
orderly
assisted from the front of Inmate
Reid's body and Mr. Henderson
assisted Inmate Reid from behind.
The only part of Mr. Henderson's
body that was touching Inmate Reid
was his hands which were in Inmate
Reid's arm pits.
Inmate Reid
refused to stand up so they assisted
him back to the wheel chair.
Officer Mullinax then left the exam
room to perform other duties.
Officer Mullinax indicated Inmate
Reid did not make a complaint to her
as he passed by the officer's
station upon exiting the medical
building. Officer Mullinax also
indicated she did not witness Mr.
Henderson "humping" Inmate Reid at
anytime nor did she witness any
other
improper
action
by
Mr.
Henderson. (Exhibit B-1)
In her sworn affidavit[6] on May 15, 2008,
Senior Health Services Administrator Kay Smith
indicated the following:
At approximate[ly] 4:00 p.m. on
March 19, 2008, she inquired to the
medical staff if Inmate Reid had
been evaluated for his continued
statements that he was unable to
perform any functions with his arms

6

See Def. Ex. A11, Affidavit of Kay T. Smith, Senior Health
Services Administrator.
- 9 -

or legs. Mr. Henderson saw the
inmate at approximately 4:00 p.m.
and Ms. Smith stood in the hallway
at Mr. Henderson's office and
observed
Mr.
Henderson
examine
Inmate Reid. Ms. Smith [i]ndicated
that she could not hear what was
being spoken, but she observed the
inmate attempt to stand and then he
collapsed. Mr. Henderson grabbed
Inmate Reid by his arms and with the
assistance
of
a
white
inmate
orderly, they lowered Inmate Reid to
the floor. Ms. Smith indicated at no
time
did
she
witness
any
inappropriate
behavior
by
Mr.
Henderson. (Exhibit A-4)
In his sworn affidavit[7] on May 19, 2008,
Inmate Meyers, Edson DC Y08492 indicated the
following:
He recalled the day of March 19,
2008, and also indicated he was not
working.[8] He further indicated he
has not seen anything out of the
ordinary happen by any [of] the
nurses or staff members on this or
any other day. (Exhibit A-5)
In his sworn, digitally recorded statement on
June 2, 2008, Clinical Assistant Larry
Henderson indicated the following:

7

Def. Ex. A12, Affidavit, dated May 19, 2008.

8

Inmate Edson Bird Meyers averred:
I recall the day of the 19th of March and I
have not seen anything out of the ordinary
happen by any of the nurses or staff members
on this or any other day.

Def. Ex. A12, Affidavit.
Meyers did not indicate,
affidavit, that he was not working on March 19th.
- 10 -

in

his

He was performing an examination on
Inmate Reid because Inmate Reid
indicated that he could not perform
his daily tasks without the help of
an assistant. Inmate Reid submitted
an inmate request requesting to be
seen by a physician because he
received a corrective consultation
for insufficient work. Upon Inmate
Reid's arrival in Mr. Henderson's
office he (Henderson) requested the
presence of Officer Mullinax as a
precautionary measure in case Inmate
Reid fell to the floor and made any
allegations. Mr. Henderson with the
help
of
an
inmate
assistant
(unidentified) assisted Inmate Reid
to his feet and was attempting to
turn him (Reid) 90 degrees where his
back would be facing the examination
table. Inmate Reid had been turned
approximately 45 degrees when he
went
limp.
When
Inmate
Reid
collapsed both of Mr. Henderson's
hands were in his arm pits and Mr.
Henderson
assisted
in
lowering
Inmate Reid to the ground. Mr.
Henderson stated the only part of
his lower body that touched Inmate
Reid other than his hands was his
lower leg that was positioned on
Inmate Reid's back to limit his
movement and to prevent him from
hurting himself while he (Inmate
Reid) was on the floor. Inmate Reid
was placed on the examination table
and the examination was completed
without
further
incident.
Mr.
Henderson denied that Inmate Reid
refused to be examined at anytime.
Mr. Henderson also denied "humping"
or thrusting his pelvis into the
buttocks area of Inmate Reid at any
time. Mr. Henderson felt Inmate Reid
made these allegations against him
because he (Henderson) would not
approve him for a daily living
assistant. (Exhibit B-1)
- 11 -

Def. Ex. A1-A4 (emphasis deleted).
Defendants also submitted the pertinent documents relating to
the disciplinary report that Defendant Henderson wrote the next
day, March 20th, for the infraction of lying to staff.
B1; B2.

Def. Exs.

The facts in the disciplinary report are as follows:
At approximately 1100 hrs on March 20, 2008,
while assigned as physician[']s assistant, I
went to "G" dormitory to observe inmate
Reid's,
Clifford
#111123
movements
and
activities.
Inmate Reid was located on the
recreation
field
and
returned
to
the
dormitory. Upon inmate Reid's arrival, Inmate
Reid was told to get undressed and get into
his bunk. Inmate Reid was then told to get
up, get dressed and get back into his
wheelchair.
Inmate Reid was ordered to do
this so his movements and activities could be
observed by myself.
Inmate Reid was in
medical on March 19, 2008 and would not
participate or even attempt to help getting
himself out of his wheelchair and onto the
table.
Inmate Reid stated, "I can't do
anything, you'll have to do everything for
me!" I ordered Inmate Reid to sit up and lift
his arms, to which he stated, "I can not do
it!" Inmate Reid would not sit up and would
not even lift his arms.
Inmate Reid was
acting as if he was completely limp and
stating that he could not do anything. It is
my professional opinion that Inmate Reid was
lying to staff by stating and acting as if he
could not help himself on March 19, 2008. It
should be noted that inmate Reid's medical
condition is not bad enough to keep him from
completing these tasks. The shift supervisor
was notified and authorized this report to be
written.
Inmate
Reid
was
placed
in
administrative confinement pending disposition
of this report.

- 12 -

Def.

Exs.

B1,

Disciplinary

Report

(emphasis

added);

B7,

Disciplinary Worksheet, dated March 20, 2008.
As part of the investigative process, Reid gave a statement on
March 25, 2008.
On 3-19-08 Henderson PA called me to
medical at Hamilton C.I. Annex and after
arriving at medical and Henderson's officer,
he read from my chart or pretended "if you
fall it could completely paralyze you or kill
you." "Ok, I need to examine you, I need you
to get on this table, can you walk.["]
To
which I said "I need assistance" [He first
asked me: What's this about you can't work,
to which I said "I have a no work pass, and a
daily assistance pass]["] He then told me
"you're full of shit," "I'm going to stand you
up and let you fall,["] then he called for an
inmate to help him stand me up, Inmate Miles
responded, then after they stood me up and
turn[ed] my back body to Henderson's front
body, Henderson began to thrust me with his
lower body in to my but[t], then he let me
fall to the floor. Henderson has fabricate[d]
his report of 3-19-08.
Def. Exs. A8; B6.
Although given the opportunity, Reid did not request any
witnesses.

Def. Ex. B4, Witness Disposition.

Nevertheless, the

investigating officer determined that inmate Expavious Mills, a
black male (DC #K51885), was a relevant witness.

Id.

the following statement:
On 3/19/08, I Expavious Mills was called to
assist doctor Henderson with another inmate.
Upon my arrival, the inmate was asked to
stand, to which that point, he started to lean
fo[r]ward, in which he was caught and placed
in a chair. From that point there, I returned
to my regular duty.
- 13 -

Mills gave

Def.

Ex.

B5,

Witness

Statement,

dated

March

26,

2008.

The

disciplinary team found Reid guilty of the disciplinary infraction,
lying to staff.

Def. Ex. B10.

Reid grieved the decision of the disciplinary team, and the
Department responded as follows, in pertinent part:
Your grievance has been received, reviewed and
evaluated.
Investigation reveals that you
were found guilty based upon the professional
medical opinion of PA Henderson. On March 19,
2008[,] you were ordered to perform several
tasks while in medical and you refused to
participate or attempt to perform the tasks by
stating "I can't do anything." Mr. Henderson
stated in the Disciplinary Report regarding 910 Lying to Staff that it was his professional
medical opinion that you do not have a
condition
that
would
prevent
you
from
performing the duties in which you was [sic]
ordered to perform.
Furthermore, witness statements were reviewed
and considered by the Disciplinary Team and
you
were
given
the
opportunity
during
investigation to provide any evidence or
witnesses on your behalf, to which you did
not, with the exception of a statement in
which you wrote (which was read and considered
by the team).
Based on this, I find no
substantiation to your allegation that a
violation of Due Process has occurred.
You
have not provided any evidence to substantiate
your allegation that the Reporting Officer
furnished false information in the Statement
of
Facts.
Furthermore,
it
is
the
responsibility of the Disciplinary Team to
weigh the facts, review all the statements,
and
determine
the
credibility
of
any
witnesses.
In this case, the Team accepted
the Officer's statement as credible and a
decision
was
rendered
to
uphold
the
requirements set forth in Chapter 33-601.

- 14 -

Your D.R. was conducted in accordance with the
rules and policies of the department. I find
that you have not presented any evidence that
would warrant the overturning of the finding
of the team. Based on the above information,
your grievance is denied.
Def. Ex. C, Response, dated April 10, 2008.
Based upon these facts, Defendants contend that there is no
genuine issue as to any material fact and that each Defendant is
entitled to summary judgment as a matter of law based on the record
before the Court.

They assert that there is no evidence of any

physical

that

injury,

Defendant

McNeil

did

not

personally

participate in the alleged assault and cannot be held responsible
under a theory of respondeat superior for the actions of his
subordinates, that any allegations that McNeil failed to properly
respond

to

Reid's

inmate

grievances

or

investigate

Reid's

allegations of abuse fail to state a claim for relief under section
1983, and that the challenged disciplinary conviction was based on
constitutionally sufficient evidence.
V. Law and Conclusions
The Eleventh Circuit has set forth the standard for an
excessive use of force claim for an inmate:
The use of force constitutes cruel and unusual
punishment where it is applied "maliciously
and sadistically to cause harm." Skrtich, 280
F.3d at 1300.[9] Thus, in order to prevail on
an excessive-force claim, a plaintiff must
demonstrate that those who used force against

9

Skrtich v. Thornton, 280 F.3d 1295 (11th Cir. 2002).
- 15 -

him acted with a malicious purpose. See
Johnson v. Breeden, 280 F.3d 1308, 1321 (11th
Cir. 2002). In addition, a plaintiff must
prove that a requisite amount of force was
used against him.
Hudson v. McMillian, 503
U.S. 1, 9-10, 112 S.Ct. 995, 1000, 117 L.Ed.2d
156
(1992).
"The
Eighth
Amendment's
prohibition of 'cruel and unusual' punishments
necessarily
excludes
from
constitutional
recognition de minimis uses of physical force,
provided that the use of force is not of a
sort repugnant to the conscience of mankind."
Id. (quotation omitted). In determining
whether the amount of force used against an
inmate was de minimis, a court may consider
the extent of the injuries suffered by the
280
F.3d
at
1302.
inmate.
Skrtich,
Nevertheless, a court ultimately should decide
an excessive force claim "based on the nature
of the force rather than the extent of the
injury." Wilkins v. Gaddy, 559 U.S. --, --,
130 S.Ct. 1175, 1177, -- L.Ed.2d -- (2010).
Moreover, an officer need not actually
participate in using excessive force against a
prisoner in order to be liable under § 1983
for cruel and unusual punishment.
Skrtich,
280 F.3d at 1301. "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." Id.
Vicks v. Knight, 380 Fed.Appx. 847, 851 (11th Cir. 2010) (not
selected for publication in the Federal Reporter).
This

Court

finds

that

Defendants

McNeil,

Mullinax

and

Henderson have met their initial burden of showing, by reference to
affidavits and other documentary evidence, that there are no
genuine issues of material fact that should be decided at trial
with respect to Plaintiff's claims against them.

Defendants have

presented evidence that Defendant Henderson summoned for Defendant
- 16 -

Mullinax to be a witness to the medical examination of Reid on
March 19th. Def. Ex. A3. Officer Tucker had issued a disciplinary
report to Reid for Reid's failure to perform housekeeping tasks, P.
Exs. A, E, and therefore, the medical office had scheduled Reid's
examination due to Reid's continued complaints that he was unable
to perform any functions with his arms and legs.

Def. Ex. A11.

Defendants have presented evidence that Henderson's March 19th
examination was professionally motivated.

When Reid collapsed,

Henderson's hands were in Reid's arm pits, and Henderson assisted
in lowering Reid to the ground.

Henderson stated the only part of

his lower body that touched Reid, other than his hands, was his
lower leg that was positioned on Reid's back to limit his movement
and to prevent him from hurting himself while he was on the floor.
Def. Ex. A4.

According to Henderson, Reid was placed on the

examination table, and the examination was completed.

Henderson

denied "humping" or thrusting his pelvis into the buttocks area of
Reid at any time.

Id.

Henderson believed that Reid made these

allegations against him because Henderson would not approve him for
a daily living assistant to help him with his housekeeping tasks.
Id.
Mullinax saw Henderson encouraging Reid to stand up and then
assist Reid by standing behind Reid and placing his hands in Reid's
armpits.

Id.

Mullinax did not see Henderson thrust his pelvis in

the buttocks area of Reid nor did she witness any other improper

- 17 -

action by Henderson during that examination.

Id.

Standing in the

hallway at Henderson's office, Senior Health Services Administrator
Kay Smith also observed Henderson's examination of Reid.
A11, Affidavit.

Def. Ex.

While Smith could not hear the conversation

between Henderson and Reid, she saw Reid "attempt to stand then
begin to go limp," when Henderson "grabbed" Reid "under his arms"
and, with the assistance of a white inmate orderly, they lowered
Reid to the floor.

Id.

Defendant Mullinax and Administrator Smith agree that a white
inmate

orderly

assisted

Henderson.

Def.

Exs.

A3;

A4;

A11.

Recalling the incident, inmate Edson Bird Meyers, a white orderly,
averred that he did not see anything "out of the ordinary happen by
any of the nurses or staff members on this or any other day."
Ex. A12, Affidavit.

Def.

Further, Expavious Mills, a black inmate,

stated that he was called to assist Henderson with another inmate
that day.

Def. Ex. B5.

Because Defendants have met this initial burden, Plaintiff is
required to present his own documentation (affidavits, depositions,
answers to interrogatories, admissions on file, etc.) to show that
there is a genuine issue for trial.

Plaintiff has failed to

present this Court with any evidence as to his claims against the
Defendants, other than his own statements in his Affidavits (P. SJ.
Exs. U; V), which simply reiterate the allegations in his Amended
Complaint

with

respect

to

those

- 18 -

claims.

He

concedes

that

Henderson's actions were committed in the presence of a black
inmate orderly and "on-looking nurses who could see everything by
looking threw [sic] the large window of Defendant Henderson's
Office door . . . ."

Amended Complaint at 15.

As the Court must view contested facts in the light most
favorable to Reid, as the non-movant, assuming arguendo that
Henderson bumped his pelvis in the buttocks area of Reid three
times as he and the orderly attempted to help Reid to a standing
position, such conduct does not rise to the level of a federal
constitutional violation.
Henderson

and

Reid

were

The following facts are uncontested:
both

clothed

in

"pants"

during

the

incident, Def. Ex. A9; Reid had boxer shorts under his pants, P.
SJ. Ex. V at 89; there was no skin to skin contact, id.; P. SJ. Ex.
V at 84; Mullinax and Smith watched as Henderson and the assisting
inmate orderly attempted to help Reid out of the wheelchair to a
standing

position,

Def.

Exs.

A3;

A4;

A12;

no

injuries

were

identified immediately thereafter on the emergency room record,
Def. Exs. A9; A10; there were no signs of trauma, bruising or
scratches, which coincided with Reid's report of "no injury," Def.
Ex. A9; and Reid never complained to Mullinax as he passed the
officer's station upon exiting the medical building, Def. Ex. A4.
Nurse Bunting, on the emergency room record, quoted Reid's
description of the occurrence as follows: "when I was seeing the
doctor, he thrust his hips at my butt, my pants were on, his pants

- 19 -

were on.

There was no skin to skin contact, no anal penetration.

I have no injuries."
opposition

to

Def. Ex. A9.

the

summary

However, in Reid's affidavit in

judgment

motion,

while

still

acknowledging that he was clothed in pants and boxer shorts and
Henderson was clothed in pants, Reid asserts that Henderson thrust
his penis into Reid's anus.

P. SJ. Ex. V at 84.

Also, in another

affidavit, Reid states that the confinement officer took his bloodstained

underwear,

Henderson's

sexual

which

was

assault

the

upon

only

him.

physical
P.

SJ.

evidence

Ex.

U

at

of
78.

Nevertheless, Plaintiff's affidavits provide no basis for a jury to
conclude that Defendant Henderson sexually assaulted Plaintiff. If
this case were to proceed to trial, Plaintiff would have no
witnesses, besides himself, to support his version of the events,
which in itself is insufficient to establish an Eighth Amendment
violation.

Moreover,

none

of

the

medical

records

or

other

documentary evidence supports his version.
Conversely, the affidavits (Def. Exs. A11; A12) and other
documentary evidence, including medical records and the statements
of assisting inmate orderlies,10 support Defendants' description of
the events with respect to Plaintiff's claim that Henderson thrust
his pelvis towards Reid's buttocks area, as they were clothed in at

10

Expavious Mills, a black inmate, recalled that he was called
to assist Henderson with another inmate that day. Def. Ex. B5.
And, Edson Bird Meyers, a white inmate orderly, stated he did not
see anything "out of the ordinary happen by any of the nurses or
staff members on this or any other day." Def. Ex. A12.
- 20 -

least three articles of clothing between them, with no skin to skin
contact.

Further, the medical evidence contains Nurse Bunting's

quoted description of Plaintiff's complaint: "I have no injuries."
Def. Ex. A9.
Undoubtedly, there was some physical contact when Reid "went
limp," Def. Ex. A4, as Henderson and the inmate orderly were
assisting Reid from the wheelchair to a standing position.

That

minimal contact was to prevent any unnecessary injury to Reid as he
collapsed.

Reid has failed to present any evidence that there was

malicious intent on the part of Henderson to injure Reid.

It is

simply unrealistic to believe that Henderson's penis (through his
pants) penetrated Reid's anus (through Reid's pants and boxer
shorts), causing blood-stained underwear, given the undisputed
facts that Administrator Smith, Mullinax and the assisting inmate
orderly observed Henderson's actions and thereafter reported that
they did not witness any inappropriate actions or improper behavior
by Henderson towards Reid during that examination.
Henderson's

encounter

with

Reid

on

March

20th

was

also

professionally motivated. Since Reid had collapsed the day before,
Henderson directed Reid to perform routine tasks to test Reid's
range of mobility ("so his movements and activities could be
observed")

to

determine

whether

Reid's

medical

condition

was

deteriorating to the extent that he could not perform his daily
living

tasks

without

assistance.

- 21 -

Def.

Ex.

B1.

Based

on

Henderson's observations of Reid's movements, he concluded that
"Reid was lying to staff by stating and acting as if he could not
help himself on March 19, 2008."

Id.

For that reason, Henderson

wrote the March 20th disciplinary report for lying to staff.
Here, given the strong and consistent statements of the
correctional

officers,

the

supporting

statements

of

medical

personnel, the lack of evidence of any injury, and the lack of any
other evidence to support Plaintiff's claims, this is the type of
case as to which summary judgment is appropriate.

See Kesinger v.

Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (stating "a mere
scintilla of evidence in support of the nonmoving party's position
is insufficient to defeat a motion for summary judgment").

Thus,

this Court concludes that no reasonable jury could believe, based
upon the evidence of record, that Defendant Henderson sexually
assaulted

Reid

during

the

March

19th

medical

examination

or

harassed him the following day.
Further, with respect to Defendant Mullinax, Plaintiff's
affidavits provide no basis for a jury to conclude that Mullinax
permitted Henderson to assault Reid.

Mullinax, in her sworn,

recorded interview, stated that she saw Henderson and the assisting
inmate orderly help Reid out of his wheelchair to a standing
position and that Henderson simply placed his hands in Reid's
armpits to help him stand.

Def. Ex. A3.

Since she did not view

any inappropriate action by Henderson at any time, there was no

- 22 -

reason for her to intervene to stop an examination that she
perceived as professional and appropriate to determine the extent
of Reid's range of mobility.

Id.

When Reid passed the officer's

station upon exiting the medical building, he did not complain to
Mullinax or to the Senior Health Services Administrator Smith who
also witnessed the examination.

Id.

Thus, this Court concludes

that no reasonable jury could believe, based upon the evidence of
record,

that

Defendant

Mullinax

violated

Reid's

federal

constitutional rights when she failed to intervene.
With respect to Secretary McNeil, Plaintiff has not shown that
McNeil was deliberately indifferent to Reid's medical and safety
needs. The United States Court of Appeals for the Eleventh Circuit
has stated:
"Supervisory officials are not liable under
section 1983 on the basis of respondeat
superior or vicarious liability." Belcher v.
City of Foley, Ala., 30 F.3d 1390, 1396 (11th
Cir. 1994) (internal quotation marks and
citation omitted). "The standard by which a
supervisor is held liable in her individual
capacity for the actions of a subordinate is
extremely rigorous."
Gonzalez, 325 F.3d at
1234 (internal quotation marks and citation
omitted).[11]
"Supervisory liability occurs
either
when
the
supervisor
personally
participates in the alleged constitutional
violation or when there is a causal connection
between actions of the supervising official
and the alleged constitutional deprivation."
Brown v. Crawford, 906 F.2d 667, 671 (11th
Cir. 1990).

11

Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003).
- 23 -

"The necessary causal connection can be
established 'when a history of widespread
abuse puts the responsible supervisor on
notice of the need to correct the alleged
deprivation, and he fails to do so.'"
Cottone,
326
F.3d
at
1360
(citation
omitted).[12]
"The
deprivations
that
constitute widespread abuse sufficient to
notify the supervising official must be
obvious, flagrant, rampant and of continued
duration, rather than isolated occurrences."
Brown, 906 F.2d at 671. A plaintiff can also
establish the necessary causal connection by
showing "facts which support an inference that
the supervisor directed the subordinates to
act unlawfully or knew that the subordinates
would act unlawfully and failed to stop them
from doing so," Gonzalez, 325 F.3d at 1235, or
that a supervisor's "custom or policy . . .
resulted
in
deliberate
indifference
to
constitutional rights," Rivas v. Freeman, 940
F.2d 1491, 1495 (11th Cir. 1991).
Danley v. Allen, 540 F.3d 1298, 1314 (11th Cir. 2008).

The

supervisory claims against Defendant McNeil fail since Reid has
failed to present any evidence suggesting that McNeil personally
participated in the alleged constitutional violations. Indeed, the
record evidence established that he did not.

Further, the record

discloses no facts suggesting any causal connection between his
actions or inactions and the alleged constitutional deprivations.
The Summary Judgment Motion will be granted as to claims made
against Defendant McNeil.
Under these circumstances, the undersigned concludes that
there are no genuine issues of material fact to be tried by a jury,

12

Cottone v. Jenne, 326 F.3d 1352 (11th Cir. 2003).
- 24 -

and that summary judgment in favor of the Defendants is due to be
entered.

Accordingly, Defendants' Motion for Summary Judgment

(Doc. #14) will be granted, and judgment will be entered in their
favor.
Therefore, it is now
ORDERED:
1.

Defendants' Motion for Summary Judgment (Doc. #14) is

GRANTED.
2.

The Clerk shall enter final judgment in favor of the

Defendants.
3.

The Clerk of Court shall close this case.

DONE AND ORDERED at Jacksonville, Florida this 8th day of
August, 2011.

sc 8/8
c:
Clifford Leon Reid
Counsel of Record
- 25 -