Blome v. Gentile et al
Filing
68
ORDER granting 51 Defendant Gentile's Motion for Summary Judgment, with directions to the Clerk to enter final judgment in favor of Defendant Gentile and close the case. Signed by Judge Marcia Morales Howard on 9/15/2014. (BL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
RICHARD BLOME,
Plaintiff,
v.
Case No. 3:11-cv-1000-J-34PDB
SAMUEL GENTILE,
Defendant.
ORDER
I. Status
Plaintiff Richard Blome, an inmate of the Florida penal system
who is proceeding in forma pauperis, initiated this action on
October 11, 2011, by filing a pro se Civil Rights Complaint (Doc.
1) under 42 U.S.C. § 1983. Blome filed an Amended Complaint (Doc.
5) on October 20, 2011; a Second Amended Complaint (Doc. 9) on
November 25, 2011; and a Third Amended Complaint (Doc. 26) on July
13, 2012. In the Third Amended Complaint, Blome names Samuel
Gentile,
who
was
a
sergeant
at
New
River
East
Correctional
Institution (NRCI), at the time of the alleged incident. He asserts
that Sergeant Gentile violated his Eighth Amendment right to be
free from cruel and unusual punishment when he used unnecessary and
excessive
force
on
January
8,
2010.
As
compensatory, punitive and nominal damages.
relief,
Blome
seeks
This cause is before the Court on Defendant Gentile's Motion
for
Summary
Judgment
(Motion)
(Doc.
51).1
The
Court
advised
Plaintiff of the provisions of Federal Rule of Civil Procedure 56,
notified him that the granting of a motion to dismiss or a motion
for summary judgment would represent a final adjudication of this
case which may foreclose subsequent litigation on the matter, and
gave him an opportunity to respond to the Motion. See Order (Doc.
12); Summary Judgment Notice (Doc. 52). Plaintiff did so, see
Plaintiff's Opposition to Defendant's Motion for Summary Judgment
(Response) (Doc. 55), and the Defendant's Motion is ripe for
judicial review.
II.
Plaintiff's Allegations
In his verified Third Amended Complaint,2 Blome alleges the
following pertinent facts to support his excessive use of force
claim.
On 01.08.2010 while already housed in a
protective custody cell at New River East C.I.
because of previous threats from guards[,]
Samuel Gentile then handcuffed and took this
Plaintiff from that cell and punched the head
1
The Court will refer to the exhibits appended to Defendant's
Motion as Def. Ex.
2
See Stallworth v. Tyson, No. 13-11402, 2014 WL 4215438, at
*2 (11th Cir. Aug. 27, 2014) (citations omitted) ("The factual
assertions that [Plaintiff] made in his amended complaint should
have been given the same weight as an affidavit, because
[Plaintiff] verified his complaint with an unsworn written
declaration, made under penalty of perjury, and his complaint meets
Rule 56's requirements for affidavits and sworn declarations.").
2
plus left shoulder area of the Plaintiff
without provocation or reason. The assault was
captured on surveillance cameras positioned
above us only 10 feet away. This act
permanently injured the left shoulder joint
area of the Plaintiff. This assault was
uncalled for, done sadistically from behind
the Plaintiff with no warning or expectation
of being attacked by the Defendant; who
maliciously meant to injure and cause pain.
The joint injury shall forever limit and
affect the employment of the Plaintiff as a
union crane operator. The Defendant acted evil
and intended to cause harm plus purposely
violated the Plaintiff's rights to be freely
safe or protected from violence by prison
guards. The threats and abuse was [sic]
repeatedly done. The Plaintiff suffered a
partially dislocated left shoulder. The
Defendant has shown "deliberate indifference"
to the rights of the Plaintiff but instead
used a physical beating as his form of
punishment on this Plaintiff as it was clearly
proven on 2 cameras that recorded everything.
Third Amended Complaint at 5-6.
III.Summary Judgment Standard
The Eleventh Circuit recently set forth the summary judgment
standard.
Summary judgment is proper when "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 substantive
law controls which facts are material and
which are irrelevant. Raney v. Vinson Guard
Service, Inc., 120 F.3d 1192, 1196 (11th Cir.
1997). Typically, the nonmoving party may not
rest upon only the allegations of his
pleadings, but must set forth specific facts
showing there is a genuine issue for trial.
Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th
Cir. 1990). A pro se plaintiff's complaint,
however, if verified under 28 U.S.C. § 1746,
is equivalent to an affidavit, and thus may be
3
viewed as evidence. See Murrell v. Bennett,
615 F.2d 306, 310 n.5 (5th Cir. 1980).
Nevertheless, "[a]n affidavit or declaration
used to support or oppose a motion must be
made on personal knowledge." Fed.R.Civ.P.
56(c)(4). "[A]ffidavits based, in part, upon
information and belief, rather than personal
knowledge, are insufficient to withstand a
motion for summary judgment." Ellis v.
England, 432 F.3d 1321, 1327 (11th Cir. 2005).
As we've emphasized, "[w]hen the moving
party has carried its burden under Rule 56[],
its opponent must do more than simply show
that there is some metaphysical doubt as to
the material facts ... Where the record taken
as a whole could not lead a rational trier of
fact to find for the non-moving party, there
is no 'genuine issue for trial.'" Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d
538 (1986). "[T]he mere existence of some
alleged factual dispute between the parties
will
not
defeat
an
otherwise
properly
supported motion for summary judgment; the
requirement is that there be no genuine issue
of material fact." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). Unsupported, conclusory
allegations that a plaintiff suffered a
constitutionally
cognizant
injury
are
insufficient to withstand a motion for summary
judgment. See Bennett v. Parker, 898 F.2d
1530, 1532–34 (11th Cir. 1990) (discounting
inmate's claim as a conclusory allegation of
serious injury that was unsupported by any
physical evidence, medical records, or the
corroborating
testimony
of
witnesses).
Moreover, "[w]hen opposing parties tell two
different stories, one of which is blatantly
contradicted by the record, so that no
reasonable jury could believe it, a court
should not adopt that version of the facts for
purposes of ruling on a motion for summary
judgment." Scott v. Harris, 550 U.S. 372, 380,
127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
4
Howard v. Memnon, Case No. 13-12049, 2014 WL 3411093, at *1-2 (11th
Cir. July 15, 2014) (per curiam) (footnote omitted). In an action
involving
the
alleged
violation
of
plaintiff's
federal
constitutional rights under 42 U.S.C. § 1983, "assuming all facts
in the light most favorable to [plaintiff, as the non-moving
party]," summary judgment is properly entered in favor of the
defendant where "no genuine issue of material fact exist[s] as to
whether
[plaintiff]'s
constitutional
rights
were
violated."
McKinney v. Sheriff, 520 F. App'x 903, 905 (11th Cir. 2013) (per
curiam).
IV. Law and Conclusions
In his Motion, Defendant Gentile asserts that the Court should
grant summary judgment in his favor and dismiss Blome's Third
Amended Complaint as frivolous and malicious. He argues that: (1)
Blome cannot show a violation of the Eighth Amendment; (2) Gentile
is entitled to qualified immunity; (3) Blome cannot recover more
than nominal damages; and (4) Blome's allegations in his Third
Amended Complaint, his sworn testimony during his deposition, and
statements made in his signed filings in the instant action are
"pure
fabrications
that
merit
dismissal
as
frivolous
and
malicious." Motion at 1 (emphasis deleted). In support of his
assertions, Gentile submitted the following exhibits: Def. Exs. A,
Blome's Florida Department of Corrections (FDOC) Offender Network,
Inmate Population Information Detail; B, Declaration of Samuel
5
Gentile (Gentile's Declaration),3 dated January 21, 2014; B1,
Blome's letter to Gentile, dated January 30, 2010; C, Declaration
of Robert Schmidt (Schmidt's Declaration), dated January 21, 2014;
D, Excerpts of Blome's Deposition, dated April 19, 2013; D1,
diagram drawn by Blome and defense counsel Garland and approved by
Blome; D2, Blome's post-use-of-force witness statement, dated
January 8, 2010; D5, Blome's letter to Gentile; E, Clips 1 and 2
(sealed),4 fixed wing videotape of G-dormitory, wing 3, dated
January 8, 2010; F (sealed), videotape of Blome's post-use-of-force
medical examination, as filmed with a hand-held video recorder
operated by Mark Turgeon, dated January 8, 2010; G, Declaration of
Nurse Geraldine Crawford (Crawford's Declaration), dated January
22, 2014; G1, post-use-of-force medical examination records, dated
January 8, 2010; H, FDOC Chronological Record of Health Care. In
responding to Gentile's Motion, Blome asserts that the surveillance
film "is absolute proof that Defendant used excessive force on
Plaintiff!" Response at 8. Blome also submitted an affidavit to
support his assertions. Id. at 10, General Affidavit (Blome's
Affidavit).
3
See Defendant's Notice of Re-Filing Exhibit B of the Motion
for Summary Judgment (Doc. 53), filed January 23, 2014.
4
The Court granted Defendant's motion to file exhibits E and
F under seal. See Order (Doc. 62), filed March 20, 2014, at 1,
paragraph 2. The Court will cite to the two clips of Def. Ex. E as
Clip 1 and Clip 2.
6
On January 8, 2010, Blome was housed at NRCI, G-dormitory,
wing
three,
lower
level
and
bunk,
cell
G3-112.
Gentile's
Declaration at 1; Schmidt's Declaration at 1; Blome's Deposition at
32;5 D1 (diagram showing the location of Blome's cell). That
morning, Gentile and Officer Robert Schmidt searched Blome's cell
and confiscated two pictures of children, one eyeglasses case, and
two pairs of reading glasses. Gentile's Declaration at 1; Blome's
Deposition at 49-50. Later that morning, at approximately 10:53
a.m., Gentile and Schmidt went back to Blome's cell, restrained
Blome in handcuffs behind his back, and escorted him to a nearby
shower cell. Gentile's Declaration at 1; Blome's Deposition at 51
(admitting that he was handcuffed behind his back); Def. Ex. E,
Clip 2. After securing Blome in a shower cell, Gentile and Schmidt
conducted another search of Blome's cell to ensure that Blome did
not have any weapons or contraband that he could bring with him
during a forthcoming planned escort to see the assistant warden.
Gentile's Declaration at 1-2; Def. Ex. E, Clip 2.
After searching Blome's cell, Gentile and Schmidt returned to
the
shower
cell
at
10:58
a.m.
to
escort
Blome.
Gentile's
Declaration at 2; Def. Ex. E, Clip 2. With Blome restrained in
handcuffs behind his back,6 Gentile and Schmidt escorted him to
5
The Court will cite to the original deposition transcript
page numbers, not the CM/ECF page numbers.
6
Blome asserts that he was handcuffed in front when Gentile
and Schmidt escorted him for the interview with the assistant
7
meet with the assistant warden regarding a five-page letter that
Blome had addressed to the warden about a planned riot. Gentile's
Declaration at 2; Blome's Deposition at 92; Def. Ex. E, Clips 1 and
2. During the escort, Gentile asked Blome whether he had a property
receipt for the items retrieved in the first cell search. Gentile's
Declaration at 2. Upset that Gentile and Schmidt had confiscated
pictures
of
his
children,
Blome's
Deposition
at
52,
Blome
responded, "They are mine" and "You're gonna give all that shit
back to me." Gentile's Declaration at 2; Blome's Deposition at 5255. Gentile again questioned Blome as to whether he had a property
receipt for the items, to which Blome responded "They are mine and
you're going to give them back to me and apologize for taking
them." Gentile's Declaration at 2; Blome's Deposition at 57.
While waiting at the door exiting G-dormitory, wing three,
Gentile informed Blome that the items were contraband, and that a
property receipt would be issued to him. Gentile's Declaration at
2; Plaintiff's Deposition at 57. Standing in the doorway waiting
for the control room deputies to release the lock, Blome repeatedly
stated that Gentile was "gonna apologize" for taking his property,
and was going to return his items. Blome's Deposition at 57. Both
warden. Blome's Deposition at 40-42, 78; Response at 3.
Nevertheless, Blome agrees that the surveillance videotape is
"absolute proof" of what transpired that morning. Response at 8.
That videotape shows that Blome was handcuffed with his hands
behind his back. Def. Ex. E, Clip 1.
8
Blome and Gentile agree that they discussed the confiscated items,
while standing in the doorway.
Blome and Gentile also agree that Gentile used force upon
Blome; however, they disagree as to how it happened and whether
Gentile used force in a good-faith effort to maintain or restore
discipline, or applied it maliciously and sadistically to cause
harm. While Blome asserts that the attack began before the three
men
stepped
through
the
confinement
wing
door,
see
Blome's
Deposition at 53, 58, 61, 65, was without reason or provocation,
see Blome's Affidavit, and was unnecessary and excessive, see Third
Amended Complaint at 5, he also contends that the videotapes
submitted by Defendant Gentile accurately show what transpired that
morning. The fixed wing videotape shows Blome stopped in the
doorway and turning around to talk to Gentile. Def. Ex. E, Clip 1.
Blome admits that, at the time of this incident, he "was upset[,]"
Blome's Deposition at 52, continued talking about the confiscated
items, and repeatedly used derogatory and threatening language when
he addressed Gentile. Id. at 53 ("And I was using the foul language
and everything."); 52-57.
Gentile asserts that, when Blome heard Gentile's advice about
the confiscated items, Blome "stopped and turned in an aggressive
manner toward" Gentile. Gentile's Declaration at 2. Gentile took
the following actions:
I then grasped the hand restraints behind
Blome's back with my left hand and placed my
9
right hand on his right shoulder. I turned
Blome away from me and pinned him firmly
against the door to restrain him from any
further
aggressive
behavior
that
could
escalate the situation. Because Blome's legs
were unrestrained, I pinned him against the
door to restrict his ability to kick me, in
order to protect myself from any potential
harm. Blome began to shout, "Fuck you, you're
going to give me back those pictures or I'll
fuck you up, because they're mine!"
Id.; Def. Ex. E, Clip 1. Blome described what transpired just
before Gentile hit him.
The control room deputy released the lock for
the door to open and we can hear the lock
sliding back and that's when Gentile said the
motherfucker tried to head butt me. Tried to
head butt me. Did you see that? And I guess
the door was able was able [sic] to push open
so that's when he hit me.
. . . .
I was hit first from [sic] with his right hand
and then what I felt was his left came
chopping down like a sledgehammer.
. . . .
[T]he blow to the shoulder caused me to go,
propelled me though the door.
Blome's Deposition at 61, 62, 66-67; see Def. Ex. E, Clip 1.
Specifically, Blome explains that he was first hit two or three
times in the back of the head with Gentile's right hand followed by
a karate chop to his left shoulder with Gentile's left hand.
Blome's Deposition at 62-64, 66, 68. Blome insists that it was the
karate chop to the shoulder, not any blow to the head, that
propelled him through the confinement wing door. Id. at 65-68. He
10
states that Gentile's force "was fast" and lasted "[l]ess than five
seconds." Id. at 64.
The videotape footage shows that, when the officer in the
control room unlocked the door for the three men to exit wing three
of G dormitory, Blome, Gentile, and Schmidt walked through the
doorway and into the inner hall in front of the control room. Def.
Ex.
E,
Clip
1;
see
Gentile's
Declaration
at
2;
Schmidt's
Declaration at 1; Def. Ex. D1 diagram; Blome's Deposition at 57-61,
66-67. According to Schmidt and Gentile, as they passed through the
door, Blome turned toward Gentile in an aggressive manner and
attempted
to
head
butt
Gentile.
Gentile's
Declaration
at
2;
Schmidt's Declaration at 1. Despite having prepared and submitted
an affidavit in opposition to Defendant's Motion, and having
testified that he heard Gentile say that he, Blome, "tried to head
butt" Gentile, see Blome's Deposition at 57, 59, 61, 62, 74, Blome
has
not
disputed,
in
any
way,
Gentile
and
Schmidt's
sworn
statements7 that he, Blome, tried to head butt Gentile before the
use of force. Gentile feared that Blome would hurt him if he did
not use force to protect himself. Gentile's Declaration at 2.
Gentile described the type of force he used to protect
himself.
I forced Blome against the wall on our left
side and down to the floor. I placed Blome in
7
See Gentile's Declaration at 2, paragraph 7, and Schmidt's
Declaration at 1, paragraph 3
11
a seated position against the wall and held
him there until he calmed down. Blome then
ceased his aggressive behavior and I released
my hold on him. No further force was used. I
then ordered Blome to stand up and he
complied. I notified the shift supervisor of
this incident and vacated the area pursuant to
FDOC policy.
Id. Schmidt stated that he observed Gentile "force Blome to the
ground using the minimum amount of force necessary in order to
protect himself." Schmidt's Declaration at 1. Schmidt continued the
direct supervision of Blome until additional staff responded. Id.
Lieutenant Steve Tricocci and Sergeant John Proctor reported to the
scene
and
escorted
Blome
to
a
post-use-of-force
medical
examination. Id. Pursuant to FDOC policy, Schmidt left the scene.
Id. According to Gentile and Schmidt, Gentile neither reset Blome's
alleged dislocated shoulder, provided Blome with medical treatment,
nor instructed Blome as to how to reset a dislocated shoulder.
Gentile's Declaration at 3; Schmidt's Declaration at 1. Neither
Schmidt nor Gentile observed any injuries suffered by Blome as a
result of Gentile's use of force. Id.
Approximately 11:10 a.m., within ten minutes of the incident,
Sergeant Mark Turgeon began videotaping with a hand-held camera.
See Def. Ex. F. Nurse Hicks, Nurse Crawford, Tricocci, and Blome
entered the medical station for Blome's post-use-of-force medical
examination.
Def.
Ex.
F;
Crawford's
Declaration
at
1.
After
verifying that the hand-held camera had audio, Blome complained
about injuries to his head and mid-to-lower back resulting from
12
Gentile's use of force. Id. Responding to Blome's complaints of
pain, the nurses checked the back of Blome's head for injuries
multiple times, and lifted the back of his shirt to inspect his
back for injuries. Id. When Nurse Crawford wrapped a blood pressure
cuff around Blome's left arm to take his vital statistics, Blome
did not cry out or otherwise indicate that he was in pain as a
result of this action or any other action taken during the medical
examination. Crawford's Declaration at 1-2; Def. Ex. F. During the
medical examination, Nurse Crawford neither identified any injuries
to Blome's head or back nor observed any physical injuries anywhere
else on Blome's
body. Crawford's Declaration at 1; Def. Ex. G1,
Diagram of Injury (stating "[n]o injury identified" at 11:12 a.m.).
According to Crawford, she neither reset Blome's alleged dislocated
shoulder
nor
saw
anyone
else
reset
a
dislocated
shoulder.
Crawford's Declaration at 2. Crawford did not provide any medical
treatment at that time since there were no discernible injuries.
Id. Nevertheless, she instructed Blome that he could access sick
call if needed. Id.
On January 30, 2010, Blome sent Gentile a letter that was
addressed to "Gentile and then Capt. Norman." Gentile's Declaration
at 3; Def. Ex. B1. In the letter, Blome described, in pertinent
part, what transpired that morning.
To be real w/ ya, I do practice aikido;
it's a nice Chinese martial arts that Steven
Segal does on TV and in movies. It's not just
about using peoples' own momentum against 'em
13
to then break their joints or whatever, but
the fighting technic [sic] also teaches ya how
to control your own emotions as well. I've
taught it to some Broward sheriff office
female cops as a defense to use on the street.
On that day of 1-8-10 I quickly realized
that you got little control over your own
feelings; that ya let anger override your
better judgment. That's why I pushed your
buttons over my photos and eyeglasses. I
stayed in front [of] you and only talked shit;
I knew by your breathing that ya were about to
do something, so I waited patiently and kept
running my mouth. I didn't need to do more cuz
you did it all for me when the door opened and
ya pushed me out into the hallway. I seen it
all coming. Why do ya think I instantly slid
down against the wall? You merely glanced a
blow off my left ear; your watch struck my
left shoulder but I wasn't hurt at all. I
stayed on the ground cause I was gonna kick
out your left knee cap where ya had all your
240 lbs. of weight on. But I didn't need to
cuz ya quit touching me after I was down. If I
had pop[p]ed your knee, you know officer
Schmidt probably would've ran away to spray me
w/ mace. He's no fighter. Tell him to man up.
Ya need someone who'll back you up instead
[of] just lying for ya also on your DR.
Def. Ex. B1 at 1 (emphasis added).
Blome conceded that he wrote the letter to Gentile, see
Blome's Deposition at 119-20, but confessed that the "whole letter
is fictitious." Id. at 123. He offered several reasons for writing
the "fictitious" letter:
I lied and said that I practiced the
aikido because I was trying to get [Gentile]
to be afraid of me or treat me differently
with respect or - or think twice about trying
to assault me again. I think I wrote it 'cause
I was trying to get him to admit that he lied
about me trying to head butt him.
14
. . . .
I think I wrote that because I knew he
was gonna show it to other people and he
didn't want me to admit that. He didn't want
me to claim any injury and I think I wrote
that to show that I was adhering to his
instructions and I never didn't say nothing to
nobody which I didn't and I was trying to get
his cooperation to come clean about the
falsely written DR 'cause - 'cause the DR he
wrote on me is a CM DR, close management DR
and he charged me with aggravated battery,
aggravated assault on a staff. But all along
he wanted me to keep my mouth shut about him
hurting me and I knew that if I wrote this
letter, he would show it to other people.
. . . .
Because I told him that I did aikido even
though I never did. I told him that I did
because I said that while I was down on the
ground, I could have kicked out his knees, not
that I planned to. But I think even - even in
the writing I said that I could have planned.
I could have planned to kick out his knees if
I wanted to, but I didn't. So I think I was
just trying to get him to feel - feel as if he
should think twice about assaulting me again.
But all along I knew this letter would get
shown to Captain Norman and him so that's why
I wrote it to Captain Norman and him to show
him, yeah, okay. You want me to keep my mouth
shut, I'll keep my mouth shut. . . .
. . . .
I just wrote - that whole letter is
fictitious. The letter is fictitious, but I
just wrote it, as I said, 'cause [Gentile]
wanted me to keep his name clean and I did.
Id. at 121-22, 123.
In February 2011, more than a year after the January 8, 2010
incident, Blome visited the medical clinic and requested a front
15
handcuffing pass so that any hand restraints would be applied in
front of him instead of behind his back. Def. Ex. H at 1-3. During
those visits, Blome complained of left shoulder injuries and
dislocations that he suffered in 1991 in the Marine Corps, during
an undisclosed incident in 1994, and an incident at the end of 2010
in the county jail while he was practicing martial arts. Id. at 12. The medical staff observed that Blome was "able to easily remove
[his] blue shirt and undershirt freely without grimace, hesitation
or any obvious limittaions [sic] in a fluid movement." Id. at 2.
The staff also observed that Blome was "able to push up from laying
[sic] on bunk without diff[iculty] or grimace" and was able to
"lean[] on cell door with . . . arms raised above head without
diff[iculty]
or
grimace."
Id.
at
1.
As
a
result
of
the
aforementioned observations, their examination, and his medical
records, the medical staff found that Blome did not meet the
criteria for a front cuff pass, and therefore denied his request.
Id. at 3.
On February 14, 2011, Blome refused to have an x-ray of his
shoulder. Id. In mid-July 2012, nine months after initiating this
action
and
within
several
days
of
filing
his
Third
Amended
Complaint,8 Blome, for the first time, went to the medical clinic,
complaining about left shoulder pain allegedly resulting from the
8
Blome filed the Third Amended Complaint on July 3, 2012,
pursuant to the mailbox rule.
16
incident at issue. Def. Ex. H at 4-7. On July 17, 2012, a medical
technician noted that Blome "fully extended [his] arm above [his]
head while removing [his] t-shirt then refused to raise [it] when
asked to show ROM [(range of movement)]." Id. at 5.
The
Eleventh
Circuit
has
set
forth
the
standard
in
an
excessive use of force case.
[O]ur core inquiry is "whether force was
applied in a good-faith effort to maintain or
restore
discipline,
or
maliciously
and
sadistically to cause harm." Hudson v.
McMillian, 503 U.S. 1, 112 S.Ct. 995, 999, 117
L.Ed.2d 156 (1992). In determining whether
force
was
applied
maliciously
and
sadistically, we look to five factors: "(1)
the extent of injury; (2) the need for
application of force; (3) the relationship
between that need and the amount of force
used; (4) any efforts made to temper the
severity of a forceful response; and (5) the
extent of the threat to the safety of staff
and inmates[, as reasonably perceived by the
responsible officials on the basis of facts
known to them]..." Campbell v. Sikes, 169 F.3d
1353, 1375 (11th Cir. 1999) (quotations
omitted).[9] However, "[t]he 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."
Hudson,
112
S.Ct.
at
1000
(quotations
omitted).
McKinney, 520 F. App'x at 905; Howard, 2014 WL 3411093, at *2
("Courts
9
examine
the
facts
as
reasonably
perceived
See Whitley v. Albers, 475 U.S. 312, 321 (1986).
17
by
the
defendants on the basis of the facts known to them at the time.")
(citation omitted).
As an initial matter in the instant action, even taking
Blome's allegations as true, the amount of force at issue here was
de minimis. As noted by the Supreme Court, not "every malevolent
touch by a prison guard gives rise to a federal cause of action.
See Johnson v. Glick,[10] 481 F.2d, at 1033 ('Not every push or
shove, even if it may later seem unnecessary in the peace of a
judge's chambers, violates a prisoner's constitutional rights')."
Hudson v. McMillian, 503 U.S. 1, 9 (1992). Although no force was
necessary according to Blome's version of the events, the force
allegedly used by the Defendant Gentile (hitting Blome one to three
times,
and
karate
chopping
his
left
shoulder
once
with
no
discernible physical injury) "is not of a sort repugnant to the
conscience of mankind." Id.
Moreover, this Court finds that Defendant Gentile has met his
initial burden of showing, by reference to the declarations,
Blome's medical records, and surveillance videotapes, that there
are no genuine issues of material fact that should be decided at
trial. Blome asserts that the surveillance videotapes support his
version of the incident and are "absolute proof" that Gentile used
excessive force. Response at 8; Blome's Deposition at 142. However,
the fixed wing surveillance videotape, see Def. Ex. E, neither
10
Johnson v. Glick, 481 F.2d 1028 (2nd Cir. 1973).
18
supports
Blome's
version
of
the
incident,
nor
suggests
that
Gentile's force was excessive, or that he applied it maliciously
and sadistically to cause harm.
A review of the video footage shows Blome, handcuffed behind
his back, being escorted by Gentile and Schmidt. The video shows
the three men standing at the confinement wing door waiting for it
to open, and then stepping through the door. Contrary to Blome's
assertions, see Blome's Deposition at 65-68, there is no evidence
on the video of Gentile striking or punching Blome three, two, or
even one time before the trio steps through the door. Nor is there
any evidence of Gentile raising either arm or hand to hit or karate
chop Blome as the door is opening, and thus, propelling him through
the
door.
Rather,
the
video
is
consistent
with
Gentile's
declaration, in which he states that, as he waited for the door to
open, he "grasped" Blome's restraints behind Blome's back with his
left
hand
and
"placed"
his
right
hand
on
Blome's
shoulder.
Gentile's Declaration at 2, paragraph 6. The video confirms that
Gentile's hands remained in such positions as the three men walk
through
the
confinement
wing
door.
Also
consistent
with
the
declarations of both Gentile and Schmidt, the video shows that,
after passing through the confinement wing door, a brief scuffle
ensues. While the camera angle does not permit a view of what
precisely
occurred,
it
confirms
that
within
five
seconds
of
beginning, the incident was over, and Blome was on his feet
19
proceeding
towards
the
nurse's
station.
Contrary
to
Blome's
contention that the video will confirm his description of the
incident, it is actually consistent with that of Gentile and
Schmidt. See Gentile's Declaration at 2, paragraphs 6-8; Schmidt's
Declaration at 1, paragraph 3.
Additionally, Defendants have presented evidence that, even
though Blome complained of head and back pain immediately after the
incident, the nurses found no physical injuries resulting from the
use of force. The post-use-of-force videotape of the medical
examination shows the nurses responding to Blome's complaints and
repeatedly inspecting Blome's back and head areas. Thus, Defendant
Gentile has shown that Blome did not suffer any detectable physical
injury, which further supports a finding that any use of force was
de minimis.
Because Defendant Gentile has met this initial burden, Blome
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. Blome has failed
to present this Court with any evidence, other than his own
affidavit, to show that he received any injuries during the alleged
use of force or that the alleged use of force was more than de
minimis.
In
his
January
31,
2014
judgment, Blome avers:
20
affidavit
opposing
summary
On or about January 10, 2010[11] I was then
assaulted w/o reason or provocation by
Sergeant Samuel Gentile while he was escorting
me to an interview with the assistant warden.
During that assault my left shoulder became
partially dislocated; it needed to be popped
back into the joint area. This was done
quickly within the 10 minutes it took before
other prison staff came.[12] Afterwards I
feared reprisal and retaliation so I didn't
claim the shoulder injury. I continued to deny
that I was hurt. I never purposely tried to
deceive this court where I filed a civil
complaint; nor shall I ever manipulate or be
intentionally dishonest with this court.
Blome's Affidavit (Doc. 55).
The Supreme Court has cautioned that "[w]hen opposing parties
tell two different stories, one of which is blatantly contradicted
by the record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of ruling
on a motion for summary judgment." Scott v. Harris, 550 U.S. 372,
380
(2007).
In
Scott,
the
Supreme
Court
had
the
benefit
of
reviewing a videotape of the incident at issue, id. at 378-80, and
as such, found that the Court of Appeals "should have viewed the
facts in the light depicted by the videotape." Id. at 381; see
11
The parties agree that the incident occurred on January 8,
2010.
12
Initially, Blome asserted that, immediately after the
incident, a nurse reset the dislocation of his shoulder. See Motion
to Compel Products of Listed Documents (Doc. 32), filed November
19, 2012, at 2, paragraph E. However, at his April 19, 2013
deposition, Blome described a different scenario in which Gentile
showed him how to pop it back in place, see Blome's Deposition at
125-128; he admitted that he had made "a mistake," but never
intended "to mislead the court." Id. at 128.
21
Mathis v. Adams, No. 14-10605, 2014 WL 4067751, at *2 (11th Cir.
Aug. 19, 2014) (per curiam) (citation omitted) ("In light of the
uncontroverted video evidence, the district court was required to
view
the
facts
in
the
light
depicted
by
the
video
even
if
[Plaintiff's] allegations contradicted its depiction.")
Here, Defendant Gentile filed video recordings, see Def. Ex.
E, which captured the event in question, and Plaintiff agrees that
the video footage accurately reflects the event as it transpired,
see Response at 6-8. Accordingly, in ruling on summary judgment,
the Court views the facts and all reasonable inferences in the
light
most
favorable
to
Plaintiff
except
"to
the
extent
[Plaintiff's] version of the facts is clearly contradicted by the
[video], such that no reasonable jury could believe it." Beshers v.
Harrison, 495 F.3d 1260, 1262 n.1 (11th Cir. 2007) (alterations
added); see Mathis, 2014 WL 4067751, at *2 (stating "the district
court could not credit [Plaintiff's] allegation that the defendants
beat him for thirty minutes, as that allegation was 'blatantly
contradicted by the record [(video)], so that no reasonabl[e] jury
could believe it[]'").
As to those facts affirmatively contradicted by the video, the
Court relies on the video and will not adopt Plaintiff's factual
allegations. See Bodden v. Bodden, 510 F. App'x 850, 852 n.2 (11th
Cir. 2013) (per curiam) ("We need not adopt [Plaintiff's] version
of the facts to the extent it is clearly contradicted by a
22
videotape such that no reasonable jury could believe it."); Sims v.
Quilliams, 378 F. App'x 945, 946 (11th Cir. 2010) (per curiam)
("Because the district court relied on the facts as it observed
them in the tapes, it did not err by relying on these facts rather
than on [the plaintiff's] contradictory assertions."); White v.
Georgia, 380 F. App'x 796, 797 (11th Cir. 2010) (per curiam) ("It
is settled law that where the record tells two different stories,
one blatantly contradicted by the evidence, the court is not
required to adopt that version of the facts when ruling on summary
judgment."). Blome's description of the use of force incident is
refuted by the video, which shows Gentile's hands remaining in
place as the trio awaits the opening of the door and as they pass
through the door. Indeed, contrary to Blome's assertions, there is
no indication of Gentile raising either hand, hitting or karate
chopping Blome before passing through the door or even as they pass
through
the
door.
Rather,
the
video
is
consistent
with
the
descriptions of the incident given by both Gentile and Schmidt.
Thus, the Court relies on the video, and not Blome's description of
how the use of force incident transpired.
Nevertheless, the parties agree that a use of force did occur.
Upon review, the Court finds that Gentile's force was applied in a
good-faith effort to maintain or restore discipline in a situation
where Blome was admittedly upset and acting in a threatening manner
23
towards Gentile.13 Gentile's response was brief and "no more than
a de minimis use of force," Smith v. Sec'y, Dep't of Corr., 525 F.
App'x 511, 513 (11th Cir. 2013) (per curiam), that was over in less
than five seconds, see Blome's Deposition at 64; Motion (Doc. 51)
at 12. Indeed, the video reflects that no more than five seconds
elapsed between when the three men pass through the door and when
they can be seen with Blome upright and walking towards the nurse's
station. The type of force used by Gentile was "not of a sort
repugnant to the conscience of mankind." Hudson, 503 U.S. at 10
(quotation marks omitted); Smith, 525 F. App'x at 514 (stating that
the type of force allegedly used by defendant (twisting plaintiff's
arm and pressing him against the wall) was "not of a sort repugnant
to the conscience of mankind," but instead was similar to the push
or shove described in Wilkins,[14] which "almost certainly fails to
state a valid excessive force claim[]") (citations and quotations
marks omitted); Motion at 13.
Additionally, efforts were made to temper the effect of the
use of force. See Ledlow v. Givens, 500 F.App'x 910, 913 (11th Cir.
2012) (per curiam), cert. denied, 133 S.Ct. 2802 (2013); Fennell v.
Gilstrap, 559 F.3d 1212, 1220 (11th Cir. 2009) (per curiam) ("The
immediate offer of medical assistance demonstrates an effort to
13
Notably, Blome has not disputed Gentile's statement that
Blome tried to head butt Gentile.
14
Wilkins v. Gaddy, 559 U.S. 34, 38 (2010).
24
temper the severity of the response."). This factor permits the
court to take into account efforts by the officers to mitigate the
effects of the force that was applied. As soon as Gentile "calmed
down" Blome, Gentile's Declaration at 2, he notified the shift
supervisor of the incident, which resulted in obtaining immediate
medical assistance for Blome. Gentile's response "makes it less
likely that [he] was acting sadistically instead of in good faith."
Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007). Within no
more than twelve minutes of the incident, two nurses examined
Blome,
checked
his
vital
signs,
and
inspected
his
head
and
middle/lower back (the areas he complained about as a result of the
incident). See Def. Exs. F; G at 1, FDOC Emergency Room Record.
Additionally, the United States Supreme Court held that the
extent of the injury is a factor that may provide some evidence of
the amount of force applied and whether the use of force was
necessary under the specified circumstances.
This is not to say that the "absence of
serious injury" is irrelevant to the Eighth
Amendment inquiry. Id. at 7, 112 S.Ct. 995.[15]
"[T]he extent of injury suffered by an inmate
is one factor that may suggest 'whether the
use of force could plausibly have been thought
necessary'
in
a
particular
situation."
Ibid.(quoting Whitley, 475 U.S. at 321, 106
S.Ct. 1078).[16] The extent of injury may also
provide some indication of the amount of force
applied. . . .
15
Hudson v. McMillian, 503 U.S. 1 (1992).
16
Whitley v. Albers, 475 U.S. 312 (1986).
25
Injury and force, however, are only
imperfectly correlated, and it is the latter
that ultimately counts. . . .
Wilkins v. Gaddy, 559 U.S. 34, 37-38 (2010). A court ultimately
should decide an excessive force claim based on the nature of the
force rather than the extent of the injury. Id. at 38. Here, "there
was a lack of serious injury." Smith, 524 F. App'x at 513. The fact
that Gentile applied only de minimis force is evidenced by the fact
that Blome suffered no detectable physical injury as a result of
the force.
To the extent that Blome asserts that he suffered severe
injury to his left shoulder as a result of the incident, "[S]elfserving statements by a plaintiff do not create a question of fact
in the face of contradictory, contemporaneously created medical
records." Whitehead v. Burnside, 403 F. App'x 401, 403 (l1th Cir.
2010) (citation omitted); Smith, 524 F. App'x at 513-14 (holding
that
a
prisoner
plaintiff's
claims
of
a
fractured
wrist,
contradicted by contemporaneously created medical records and
plaintiff's own inconsistent statements regarding his injury, did
not create a genuine dispute). Nurse Crawford stated:
At no time during my interaction with Blome on
January 8, 2010, did I reset a dislocated
shoulder or witness anyone else reset a
dislocated shoulder. (Ex. 1 at 1). In fact, it
would be physically impossible to properly set
a dislocated shoulder if the patient was
handcuffed. An improperly reset shoulder would
result in the shoulder drooping and a limited
range of motion, such that the patient could
not use their arm in the manner which Blome
26
uses his left arm upon being returned to his
cell in the pos[t]-use-of-force handheld
video.
Crawford's
Declaration
at
2.
Indeed,
the
post-use-of-force
videotape reflects that Blome did not have a dislocated shoulder as
a result of the incident, see Def. Ex. F; he never mentioned any
shoulder injury to the nurses who provided his post-use-of-force
physical, see id.; and the surveillance videotape does not show any
signs of a shoulder injury, see Def. Ex. E.
If this case were to proceed to trial, Blome would have only
his own testimony to support his version of the events.17 And, even
some of Blome's own evidence contradicts his version of events.
Moreover, his testimony is contradicted in relevant and important
respects by the video evidence, which is consistent with the
declarations of Defendant Gentile, Officer Schmidt, and Nurse
Crawford. Moreover, the contemporaneously created medical records,
that were generated by individuals who are not Defendants in this
action, reflect that Blome had no detectable physical injuries
after the alleged use of force.18 The fixed wing surveillance and
17
In his post-use-of-force witness statement, taken on the
same day as the incident, Blome asserted that "confinement inmates
watching can prove" that Blome did not try to "head butt" the
escort officer. Def. Ex. D2, dated January 8, 2010, at 2. However,
Blome never offered any affidavits from other inmates who allegedly
saw the incident.
18
Nurse Crawford averred: "At no time was I instructed by
anyone to falsify or omit any information in my record of Blome's
examination." Crawford's Declaration at 2.
27
the
post-use-of-force
medical
examination
videotapes
are
significantly persuasive evidence that Gentile's use of force was
minimal and was applied in a good-faith effort to maintain or
restore discipline. Thus, this Court concludes that no reasonable
jury could find in favor of the Plaintiff if this case proceeded to
trial. See Vicks v. Knight, 380 F.App'x 847, 852 (2010) (per
curiam) (finding that, in a case where the records did not reflect
that the inmate plaintiff suffered any injury, "a reasonable
factfinder could not believe that [the plaintiff] suffered any
injury, and thus could not reasonably infer that [the defendant]
used anything more than a de minimis amount of force against [the
plaintiff]"). As such, after examination of the Whitley factors and
the record as a whole, the Court finds that Defendant Gentile's
Motion for Summary Judgment is due to be granted and judgment
entered in his favor.
Therefore, it is now
ORDERED:
1.
Defendant Gentile's Motion for Summary Judgment (Doc. 51)
is GRANTED.
28
2.
The
Clerk
shall
enter
final
judgment
in
favor
of
Defendant Gentile and against Plaintiff, and shall close this case.
DONE AND ORDERED at Jacksonville, Florida this 15th day of
September, 2014.
sc 9/15
c:
Richard Blome
Counsel of Record
29
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