Jackson v. Florida Department of Corrections et al

Filing 100

ORDER granting 88 Motion for summary judgment, with instructions to the Clerk to enter judgment for Defendants Lynn Hill, L. Crews, Lieutenant Pendleton, and Sgt. Hale; instructions to the Clerk. Signed by Judge Brian J. Davis on 6/1/2016. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
IRA C. JACKSON,
Plaintiff,
v.

Case No. 3:12-cv-280-J-39MCR

LYNN HILL, et al.,
Defendants.

ORDER
I. Status
Plaintiff Ira C. Jackson, an inmate of the Florida penal
system, is proceeding in this action on a pro se Second Amended
Complaint (Second Amended Complaint) (Doc. 33) filed pursuant to 42
U.S.C. § 1983.1
Complaint

The Court will construe the pro se Second Amended

liberally.2

Plaintiff

alleges

that

the

Defendants

violation of his civil rights occurred at Putnam Correctional
Institution (PCI).

1

Plaintiff filed his original complaint (Doc. 1) on September
16, 2010, pursuant to the mailbox rule, and he filed an amended
complaint on April 26, 2011.
He is proceeding on his verified
Second Amended Complaint (Doc. 33). See Stallworth v. Tyson, 578
F. App'x 948, 950 (11th Cir. 2014) (per curiam) (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

With regard to the documents filed with the Court, the Court
will reference the page numbers assigned by the electronic
docketing system.

The remaining Defendants are Lynn Hill, Assistant Warden; L.
Crews, Warden's Secretary and Grievance Coordinator; Sgt. Hale; and
Lieutenant Pendleton.

The remaining claim is Plaintiff's claim

about being disciplined in retaliation for filing grievances.

See

Opinion, Eleventh Circuit, June 16, 2014 (Opinion) (Doc. 43 at 35). More specifically, "Jackson alleged that officials disciplined
him for filing grievances by 'search[ing] [his] person and locker,'
placing

him

in

solitary

confinement,

unnecessary psychological testing."

and

subjecting

Id. at 4-5.

him

to

The question

remains whether Plaintiff can recover nominal damages for the claim
that he was disciplined in retaliation for filing grievances.3

Id.

at 5.
Defendants' Motion for Summary Judgment (Defendants' Motion)
(Doc. 88) is before the Court.

Plaintiff was advised of the

provisions of Federal Rule of Civil Procedure 56, notified 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

opportunity to respond.

on

the

matter,

and

given

an

See Summary Judgment Notice (Doc. 89) &

Order (Doc. 46). Plaintiff responded. See Plaintiff's Response to
Defendants' Motion for Summary Judgment (Response) (Doc. 99).

3

The Court previously dismissed the claim for damages for
emotional and physical stress allegedly caused by the officials'
retaliation and the claim about the destruction of Plaintiff's
property.
The Eleventh Circuit affirmed those parts of the
dismissal. Opinion at 1-3.
2

II.

Second Amended Complaint

In his verified Second Amended Complaint, Plaintiff alleges
that the Defendants disciplined him for filing grievances.

He

initiated the grievances process at Glades Correctional Institution
(GCI), and he continued to grieve after he was transferred to PCI.
Plaintiff states that on December 18, 2009, Sgt. Hale retaliated
against Plaintiff for utilizing the grievance process by sending
Officers

T.

Pinkston,

Plaintiff's cell.

B.

R.

Davis,

and

Officer

Second Amended Complaint at 11.

Hopkins

to

The officers

harassed, intimidated and searched Plaintiff and searched his
locker.

Id.

Plaintiff submitted a grievance of reprisal against

Sgt. Hale for retaliation, claiming she sent her subordinates to
harass Plaintiff.

Id.; Exhibit E.

Plaintiff submitted a document

entitled Formal Complaint to the Regional Director of Region 3
against Sgt. Hale claiming she retaliated against Plaintiff through
her subordinates.

Second Amended Complaint at 11; Exhibit F.

Plaintiff also filed an informal grievance against Defendant Hale
on January 2, 2010, which was denied.

Second Amended Complaint at

12-13; Exhibit H.
With regard to Defendants Hill and Pendleton, Plaintiff states
that on December 30, 2009, they threatened Plaintiff with solitary
confinement if he continued to file grievances.
Complaint at 12.

Second Amended

Defendant Hill showed Plaintiff several of his

3

previously submitted grievances, and Defendant Pendleton said that
Plaintiff had now involved other officers.

Id.

Plaintiff states that on February 5, 2010, he was placed in
administrative confinement without just cause.

Id. at 14.

He

started a hunger strike to protest his treatment. Id. On February
10, 2010, Plaintiff was told that he was being transferred from PCI
to an "S.O.S. psych cell" at Tomoka Correctional Institution (TCI)
for a psychological evaluation because he was on a hunger strike.
Id. at 15.
strike.

On February 16, 2010, Plaintiff ceased his hunger

Id.

He was placed in administrative confinement at TCI

pending further investigation.

Id. at 16; Exhibit J.

On February

25, 2010, Plaintiff was transferred to Central Florida Reception
Center (CFRC) and placed in open population.
Complaint

at

evaluation,

16.

Finally,

Plaintiff

was

as

a

result

transferred

Institution (HCI) on March 2, 2010.

to

of

Second Amended
a

Hardee

mental

health

Correctional

Id.

Under the Relief Requested, Plaintiff claims he was subjected
to undue emotional and physical stress by the Defendants.
20.

Id. at

As a result, he states that he went on a hunger strike and

suffered from sleepless nights and anxiety. Id. He further claims
that he was restrained and confined in solitary confinement as a
result of the Defendants "exposing" him "to an undue psychological
screening and evaluation[.]" Id. at 20-21.

4

III. Summary Judgment Standard
The Eleventh Circuit 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 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
5

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).
Howard v. Memnon, 572 F. App'x 692, 694-95 (11th Cir. 2014) (per
curiam) (footnote omitted).

In an action involving the alleged

violation of a 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 a 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. Defendants' Motion
Defendants

move

for

the

dismissal

of

Plaintiff's

Second

Amended Complaint based upon failure to state a claim and qualified
immunity.

Defendants' Motion at 1.4

4

They contend that they are

The Court will refer to the exhibits appended to Defendants'
Motion as "Ex."
6

entitled to summary judgment because: (1) they were not responsible
for Plaintiff's person or cell being searched, (2) they were not
responsible

for

Plaintiff's

placement

in

administrative

confinement, and (3) they were not responsible for Plaintiff
receiving psychological testing.

Id. at 1-2.

They address

Plaintiff's claim of retaliation and submit that Plaintiff cannot
establish a causal connection between a protected activity, the
grievance process, and the actions of the Defendants.

Id. at 10-

14.

at

They

also

claim

qualified

immunity.

Id.

14-15.

Alternatively, Defendants assert that Plaintiff failed to exhaust
his administrative remedies and his Second Amended Complaint is due
to be dismissed pursuant to 42 U.S.C. § 1997e(a).
Exhibits

are

appended

to

Defendants'

Motion,

Id. at 6-10.
including

the

Declarations of the Defendants; some relevant grievance procedures;
excerpts from Plaintiff's deposition; the grievance appeal log and
related declaration; grievance logs; and documents concerning
Plaintiff's

placement

in

administrative

confinement

and

his

transfer to TCI.
The Declaration of Defendant Crews, the Secretary to the
Assistant Warden at PCI, states that she collects grievances and
routes them to the appropriate parties for response.

Ex. A.

She

attests that it is not her duty to investigate grievances or to
deny the requested relief.

Id.

Finally, she states that she did

7

not

threaten

Plaintiff

or

retaliate

against

him

for

grievances, and she is not aware of anyone else doing so.

filing
Id.

The Declaration of Defendant Hale, the property room sergeant,
states that she was responsible for inmate property.

Ex. B.

She

states that she was not responsible for requesting cell searches,
and she did not send anyone to Plaintiff's cell to have it
searched.

Id.

She attests that she never coerced Plaintiff into

not filing grievances.

Id.

Also, she relates that she never

threatened Plaintiff regarding the filing of grievances, and she is
not aware of anyone else doing so.

Id.

The Declaration of Defendant Hill, the Assistant Warden,
states that she did not threaten Plaintiff or retaliate against him
for filing grievances.

Ex. C.

else doing so.

She further attests that she was not

Id.

She is also not aware of anyone

responsible for Plaintiff's cell being searched.

Id.

She also

states that she did not threaten to place Plaintiff in solitary
confinement for filing grievances.

Id.

Further, she states that

all of his grievances were denied in accordance with department
policies and the resulting investigation.

Id.

The Declaration of Defendant Lieutenant Pendleton states that
he did not threaten Plaintiff or retaliate against him.
is also not aware of anyone else doing so.
Plaintiff's

cell

grievances.

Id.

was

never

searched

Id.

because

Ex. D.

He

He attests that
he

had

filed

In addition, Pendleton states that he never

8

threatened to place Plaintiff in confinement for filing grievances.
Id.
The excerpt from Plaintiff's deposition reveals the following.
Plaintiff filed grievances at GCI about his property and he filed
grievances at PCI about the seizure of his property at GCI.
at 6.

Ex. F

One day, a captain (a non-defendant), called Plaintiff into

his office and said he had complaints that Plaintiff was a writ
writer, and he was going to lock Plaintiff up.

Id.

The captain

placed Plaintiff in administrative confinement, not disciplinary
confinement.

Id.

Staff told Plaintiff to "just chill out" and

"everything would be fine."
hunger strike.

Id.

In response, Plaintiff went on a

Id.

Plaintiff further stated that he had filed grievances against
Defendants Hale and Crews.

Id. at 7.

He remained in confinement

for five days and was then transferred to "SOS" TCI.5

Id.

that he was placed there because he was not eating.

Id. at 8.

Plaintiff

explained

that

Defendant

Crews

He said

received

his

grievance as the grievance coordinator. Id. at 9. Crews contacted
Defendant Hale as the property room sergeant.

Id.

They met with

Plaintiff and told him he had contraband property and he could be
given a disciplinary report for that infraction, so he should not
push the grievances.

5

Id. at 9-10.

Plaintiff describes the SOS cell as a "psych cell."

at 11.
9

Ex. F

Plaintiff testified that he "felt that," after he wrote a
grievance

against

Defendant

Hale,

she

sent

subordinates

Plaintiff's cell to go through his locker and to harass him.
at 10.

to
Id.

The individuals who conducted the search worked in the

property room, so Plaintiff "felt that she [Hale] sent those
individuals[.]" Id.
Plaintiff also stated that Defendant Hill called Plaintiff
into the lieutenant's office, and Lieutenant Pendleton and Hill
were in the office together.

Id.

Hill told Plaintiff that his

property had arrived and she showed him four or five grievances
that Plaintiff had written, and she told him she was in the process
of responding to them, and Plaintiff needed to stop writing
grievances.

Id.

Defendant Pendleton told Plaintiff to drop his

complaint about the shake-down of Plaintiff's cell.

Id. at 11.

Plaintiff explained that he was sent to TCI because he was on
a hunger strike, and there is a "psych unit" at TCI, with a special
unit for inmates on hunger strikes.
at TCI evaluated Plaintiff.

Id.

Id. at 11-12.

A team of psychiatrists
They told Plaintiff he

was harming himself because he had become dehydrated.

Id. at 12.

Plaintiff referred to the questions they asked as a psychological
test or examination.

Id.

When asked about his retaliation claim against Crews and Hale,
Plaintiff said the following about Crews: "Well I'm assuming –because I don't know for sure –- that she sent those other officers

10

to harass me, cell search –- you know."

Id. at 16.

He said that

the actions taken against him at PCI were being harassed and placed
in confinement without a disciplinary report.6

Id. at 18.

Plaintiff attested he had to take psychological tests at TCI
related to his hunger strike.

Id.

He stated that he was asked a

series of questions during the course of one meeting with four
individuals.

Id.
V.

Plaintiff's Response

In his Response, Plaintiff asserts that both Crews and Hale
threatened Plaintiff to encourage him to drop his grievances.
Response at 4.

Plaintiff claims Hale sent her subordinates to

harass him with a pretextual locker and cell search, and she
threatened to retaliate against him if he continued to file
grievances.

Id. at 4-5.

Plaintiff also claims that Defendants

Hill and Pendleton threatened to place Plaintiff in confinement for
filing grievances.

Id. at 5-6.

Plaintiff claims that Defendant

Hill gave the direct order to have Plaintiff placed in confinement.
Id. at 6.
In

response

to

Defendants'

claim

of

qualified

immunity,

Plaintiff asserts that the Court can infer that Defendant Crews
initiated the investigation of the grievance because she was in
close proximity.

Id. at 8.

Plaintiff also notes that after the

6

The Court notes that Plaintiff alleges he was placed in
administrative confinement, not disciplinary confinement.
11

"pretextual search" of his cell and locker, he was called into the
property room by Defendant Hale to sign a corrective consultation
and a confiscated property form.

Id. at 9.

Plaintiff also

contends that it can be "inferred" that Hale helped investigate the
grievance, that she sent her subordinates to perform a pretextual
search, and that she was "indirectly" involved in the above as
evidenced by her sarcastic smile.
Plaintiff contends that it can be inferred that Defendant Hill
retaliated against him and ordered him to be placed in solitary
confinement for embarrassing her by his writing grievances after
Plaintiff told her he would stop.

Id. at 11.

Plaintiff also

claims that it can be inferred that Hill intended to punish
Plaintiff by placing him in solitary confinement so he would miss
the Super Bowl. Id. Plaintiff states that as an assistant warden,
Hill would be in "close proximity" to chill Plaintiff's protected
activity.

Id.

Plaintiff also contends that it can be inferred

that Hill wanted to protect her subordinates by denying Plaintiff's
grievances.
inferred

Id. at 12.

that

Defendant

Amendment

right

Plaintiff

in

grievances.

Plaintiff also states that it can be

to

Pendleton

file

solitary

grievances

confinement

chilled
by
if

Plaintiff's

threatening
he

continued

to
to

First
place
file

Id.

Attached

to

his

Response,

Plaintiff

provides

documents, including his Opposing Declaration.

12

supporting

Exhibit 4.

The

Court will not take into consideration the unsigned and undated
Declarations of Kartina Walker, Exhibit 5, and Eugene King, Exhibit
8.

They do not satisfy the requirements of 28 U.S.C. § 1746.

On

the other hand, the Court will take into consideration Plaintiff's
Declaration.
Plaintiff attests:
Shortly after I mailed the formal
complaint pertaining to L. Crews and C. Hale
to the regional Director, I was retaliated
against by pretextual cell and locker search
conducted by officers T. Pinkston, B. R.
Davis, and Hopkins (all three of whom work in
the property room and operate under the direct
supervision of defendant C. Hale).
Exhibit 4 at 3.
After being given a corrective consultation and confiscation
property form after the search, Plaintiff said that Defendant Hale
greeted him with a sarcastic smile.

Id.

Plaintiff filed more

grievances and was called before Defendants Pendleton and Hill.
Id.

at

4.

confinement.

They
Id.

threatened

him

with

placement

in

solitary

A few days later, he was handcuffed and told by

Major Gibson that he was being placed in administrative confinement
"just because."

Id. at 5.

Major Gibson told the officers to lock

Plaintiff up and commented that Plaintiff would not be seeing the
Super Bowl this weekend.

Id.

Plaintiff started his hunger strike.

Id.

After several days

passed, he was transferred to TCI to a "psych cell."

Several days

later, he ceased his hunger strike and was placed in administrative
13

confinement at TCI.

Id. at 6.

Thereafter, he was transported to

CFRC and placed in general population.

Id.

Finally, he was

transported to HCI and placed in general population.

Id.

VI. Law and Conclusions
A.
Defendants

Exhaustion of Administrative Remedies
move

to

dismiss

the

Second

Amended

Complaint

pursuant to 42 U.S.C. § 1997e(a) in their post-answer motion for
summary judgment.

Defendants' Motion at 6-10.

Defendants assert

that Plaintiff failed to raise the issues alleged in this lawsuit
in any grievance appeals and did not avail himself of the grievance
process with regard to his claims.

See Defendants' Exhibits E, G,

H, and I (Doc. 88).
The

Court

recognizes

that

exhaustion

of

available

administrative remedies is required before a 42 U.S.C. § 1983
action with respect to prison conditions by a prisoner may be
initiated in this Court.

In this regard, the Eleventh Circuit has

set forth guidelines for reviewing a prisoner's civil rights
claims:
Before
a
prisoner
may
bring
a
prison-conditions suit under § 1983, the
Prison Litigation Reform Act of 1995 requires
that he exhaust all available administrative
remedies. 42 U.S.C. § 1997e(a); see also Booth
v. Churner, 532 U.S. 731, 736, 121 S.Ct. 1819,
1822, 149 L.Ed.2d 958 (2001). The purpose of
the PLRA's exhaustion requirement is to
"afford
corrections
officials
time
and
opportunity to address complaints internally
before allowing the initiation of a federal
case." Woodford v. Ngo, 548 U.S. 81, 93, 126
14

S.Ct. 2378, 2387, 165 L.Ed.2d 368 (2006)
(quotation omitted). To properly exhaust, a
prisoner
must
"[c]ompl[y]
with
prison
grievance procedures." Jones v. Bock, 549 U.S.
199, 218, 127 S.Ct. 910, 922–23, 166 L.Ed.2d
798 (2007).
Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1208 (11th
Cir. 2015).
In addressing the exhaustion requirement, there is a two-step
process for resolving motions relying on assertions of failure to
exhaust administrative remedies:
After a prisoner has exhausted the
grievance procedures, he may file suit under §
1983. In response to a prisoner suit,
defendants may bring a motion to dismiss and
raise as a defense the prisoner's failure to
exhaust these administrative remedies. See
Turner,[7] 541 F.3d at 1081. In Turner v.
Burnside we established a two-step process for
resolving motions to dismiss prisoner lawsuits
for failure to exhaust. 541 F.3d at 1082.
First, district courts look to the factual
allegations in the motion to dismiss and those
in the prisoner's response and accept the
prisoner's view of the facts as true. The
court should dismiss if the facts as stated by
the prisoner show a failure to exhaust. Id.
Second, if dismissal is not warranted on the
prisoner's view of the facts, the court makes
specific findings to resolve disputes of fact,
and should dismiss if, based on those
findings, defendants have shown a failure to
exhaust. Id. at 1082–83; see also id. at 1082
(explaining that defendants bear the burden of
showing a failure to exhaust).
Whatley, 802 F.3d at 1209.

7

Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008).
15

The Court notes that exhaustion of available administrative
remedies is "a precondition to an adjudication on the merits" and
is mandatory under the Prison Litigation Reform Act.

Bryant v.

Rich, 530 F.3d 1368, 1374 (11th Cir.), cert. denied, 555 U.S. 1074
(2008); Jones v. Bock, 549 U.S. 199, 211 (2007); Woodford v. Ngo,
548 U.S. 81, 85 (2006) ("Exhaustion is no longer left to the
discretion of the district court, but is mandatory.") (citation
omitted). The Supreme Court has stated that "failure to exhaust is
an affirmative defense under the PLRA[.]"
at

216.

However,

jurisdictional[.]"

"the

PLRA

Jones v. Bock, 549 U.S.

exhaustion

requirement

Woodford v. Ngo, 548 U.S. at 101.

is

not

See Turner

v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008) (recognizing that
the defense "is not a jurisdictional matter").
Indeed, if a prisoner does not completely exhaust his remedies
prior to initiating a suit in federal court, the civil rights
complaint must be dismissed.

This is true even if the inmate

thereafter exhausts his administrative remedies after initiating
his action in federal court.

See Oriakhi v. United States, 165 F.

App'x 991, 993 (3d Cir. 2006) (per curiam); Johnson v. Jones, 340
F.3d 624, 627 (8th Cir. 2003); McKinney v. Carey, 311 F.3d 1198,
1200-01 (9th Cir. 2002) (per curiam); Medina-Claudio v. RodiguezMateo, 292 F.3d 31, 36 (1st Cir. 2002); Jackson v. Dist. of
Columbia, 254 F.3d 262, 269 (D.C. Cir. 2001); Freeman v. Francis,

16

196 F.3d 641, 645 (6th Cir. 1999); Perez v. Wisconsin Dep't of
Corr., 182 F.3d 532, 538 (7th Cir. 1999).
Not

only

is

there

an

exhaustion

requirement,

exhaustion requirement requires proper exhaustion."

"the

PLRA

Woodford, 548

U.S at 93.
Because exhaustion requirements are designed
to deal with parties who do not want to
exhaust,
administrative
law
creates
an
incentive for these parties to do what they
would otherwise prefer not to do, namely, to
give the agency a fair and full opportunity to
adjudicate their claims. Administrative law
does this by requiring proper exhaustion of
administrative remedies, which "means using
all steps that the agency holds out, and doing
so properly (so that the agency addresses the
issues on the merits)." Pozo,[8] 286 F.3d, at
1024. . . .
Id. at 90 (emphasis added).

In fact, "[p]roper exhaustion demands

compliance with an agency's deadlines and other critical procedural
rules."

Id.

Of import, Defendants did not raise the matter of exhaustion
in a motion to dismiss prior to filing their answers to the Second
Amended Complaint.

Instead, they filed their answers, Docs. 54,

60, and 69, and then they filed a motion for summary judgment
raising exhaustion, a matter in abatement.

Although exhaustion is

ordinarily raised in a pre-answer motion to dismiss, Bryant, 530
F.3d at 1375, Logan v. Chestnut, No. 3:08-cv-993-J-12JRK, 2010 WL

8

Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir.), cert. denied,
537 U.S. 949 (2002).
17

3385026, at *2 (M.D. Fla. Aug. 26, 2010), in this instance,
Defendants raised the affirmative defense of failure to exhaust
administrative remedies in their Answers.

See Williams v. Nish,

No. 1:11-CV-0396, 2015 WL 106387, at *4 (M.D. Penn. Jan. 7, 2015)
(addressing the question of whether there has been a timely
assertion of the affirmative defense of failure to exhaust), aff'd,
612 F. App'x 81 (3rd Cir. 2015).

The Court finds in these limited

circumstances where Plaintiff had notice of the defense sufficient
to avoid prejudice, the post-answer exhaustion defense was not
waived.
The Court will proceed to the question of exhaustion.

The

issue that needed to be exhausted by Plaintiff prior to filing his
civil rights complaint is whether he was disciplined (by having his
person

and

locker

searched,

by

being

placed

in

solitary

confinement, and by being subjected to unnecessary psychological
testing) in retaliation for filing grievances.
In the first step of the exhaustion analysis, the Court
recognizes that Plaintiff is not required to plead exhaustion;
therefore, the Second Amended Complaint is not subject to dismissed
on its face.

In this case, there are disputed issues of fact as to

whether Plaintiff exhausted his administrative remedies.
Response at 13-19.

See

Thus, the Court will make findings on the

disputed issues of fact to decide whether administrative remedies

18

were available to Plaintiff, and if so, whether he properly
exhausted his administrative remedies.9
The Florida Department of Corrections (FDOC) provides an
internal

grievance

procedure.

See

Chapter

33-103,

Florida

Administrative Code (F.A.C.). Thus, to determine whether Plaintiff
exhausted his administrative remedies, this Court must examine the
relevant documents to determine whether the incidents in question
were grieved.

If these incidents were grieved and the documents

complied with the deadlines and other procedural rules as set forth
in the F.A.C., the issues raised therein are exhausted.
Generally, the FDOC provides a three-step grievance procedure.
First, an inmate must submit an informal grievance.
33-103.005(1), F.A.C.

See Chapter

If the issue is not resolved, the inmate is

directed to file a formal grievance at the institutional level.
See Chapter 33-103.006, F.A.C.; Chapter 33-103.011(4), F.A.C.

If

the matter is not resolved at the institutional level, the inmate
is directed to file an appeal to the Office of the Secretary of the
FDOC.

See Chapter 33-103.007, F.A.C.; Chapter 33-103.011, F.A.C.

9

The parties have not requested an evidentiary hearing on
this issue.
They have submitted evidence for the Court's
consideration; therefore, the Court proceeds to resolve the
material questions of fact based on the documents before the Court.
Bryant, 530 F.3d 1377 n.16 (recognizing that a district court may
resolve material questions of fact on the submitted papers when
addressing the Prison Litigation Reform Act's exhaustion of
remedies requirement).
19

As noted by Defendants, in certain instances, an inmate may
depart from the standard grievance procedure and file a direct
grievance with the Secretary of the FDOC.

Grievances of reprisal

are one of the types of grievances that may be filed with the
Secretary.

Chapter 33-103.007(6), F.A.C.

In a grievance of

reprisal, "[t]he inmate must clearly state the reason for not
initially bringing the complaint to the attention of institutional
staff and by-passing the informal and formal grievance steps of the
institution or facility[.]"

Chapter 33-103.007(6)(a)(2), F.A.C.

If the Secretary determines that the grievance does not qualify as
a grievance of reprisal, the grievance must be returned to the
inmate with reasons for return specified and advising the inmate to
resubmit the grievance at the appropriate level.

Chapter 33-

103.007(6)(d), F.A.C. Finally, if the grievance is returned to the
institution or facility for further investigation or a response,
the inmate may, after receiving the response, re-file with the
Secretary.

Chapter 33-103.007(7), F.A.C.

Defendants rely on the Central Office grievance log that
covers the dates and locations of Plaintiff's grievance appeals
that were received and adjudicated.

Ex. G.

Defendants note that

there are ten grievance appeals filed by Plaintiff after November
1, 2009, when Plaintiff arrived at PCI, and before September 20,
2010, when he filed his original complaint.
8.

Defendants' Motion at

None of these grievances include a complaint that Plaintiff's

20

person

or

cell

was

searched

in

retaliation

for

his

filing

grievances, that he was placed in confinement in retaliation for
filing grievances, and or that he received psychological testing in
retaliation for filing grievances.

See Ex. G.

In his Response to Defendants' Motion, Plaintiff counters that
he filed a grievance of a sensitive nature pursuant to Chapter 33.103.006(3)(a), (c), and (d), F.A.C., against Defendants Hale and
Crews,

and

in

accordance

exhausted the procedure.
H,

and

I.

Upon

review

with

the

response

he

received,

he

Response at 15; Plaintiff's Exhibits B,
of

the

referenced

grievances,

these

grievances concern the seizure of Plaintiff's personal property at
GCI and Plaintiff's complaints about the Defendants' failure to
grant his requested relief and Plaintiff's assertion that Crews,
Sgt. Wheeler (at GCI), and Hale conspired against Plaintiff by
refusing

to

return

his

property

as

a

form

of

reprisal

Plaintiff's participation in the grievances process.

for

Upon a

thorough review, these referenced grievances do no concern any
complaints about officers retaliating against him by disciplining
Plaintiff through a cell search at PCI, placing him in confinement
at PCI, or subjecting him to psychological testing, the heart of
the case at this juncture. Instead, these complaints relate to the
seizure and destruction of Plaintiff's property at GCI.

21

Plaintiff further states that he filed a grievance of reprisal
against Defendant Hale with respect to a retaliatory and pretextual
locker and cell search on December 19, 2009.

Response at 15;

Plaintiff's Exhibit E at 2. The response states that the grievance
is not accepted as a grievance of a sensitive nature, and Plaintiff
is granted an additional fifteen days to resubmit his grievance at
Id. at 3.

the institutional level.
the

record

does

not

Plaintiff does not assert and

demonstrate

that

he

complied

with

this

directive and submitted a grievance at the institutional level
concerning the alleged retaliatory disciplinary action of Defendant
Hale.
Plaintiff

does

contend,

however,

that

he

satisfied

the

exhaustion requirement because he met the requirement by filing the
grievance of reprisal, relying on Dimanche v. Brown, 783 F.3d 1204,
1212-14 (11th Cir. 2015) (finding the grievance of reprisal to be
a proper direct grievance). Response at 16. The record shows that
Plaintiff filed his grievance of reprisal on the proper DC1-303
form.

Exhibit E at 2.

He stated at the top of the form that it

was a grievance of reprisal.

Id.

He then stated his reason for

not bringing his complaint to the attention of institutional staff.
Id.

See Myers v. Watkins, No. 5:12cv259-MW/EMT, 2015 WL 4756250,

at *8 (N.D. Fla. Aug. 11, 2015) (finding the direct grievance
improper as it was on an improper form and it failed to clearly
provide

the

reasons

for

bypassing

22

the

standard

institutional

process).

Thus, this Court concludes Plaintiff's grievance of

reprisal satisfies the exhaustion requirement with respect to the
claim that Defendant Hale disciplined Plaintiff by ordering a
locker search in retaliation for Plaintiff's filing of grievances.10
Finally, Plaintiff references a grievance of reprisal dated
December 11, 2009 against Sgt. Wheeler of GCI for confiscating his
property.

Response at 15-16; Plaintiff's Exhibit 6.

It is on the

proper form and explains why Plaintiff by-passed the institutional
level (because he feared Secretary Specialist Crews may interfere
with the reception of the grievance), but it does not concern the
disciplinary

and

retaliatory

actions

of

a

locker/cell

search

conducted on December 18, 2009, Plaintiff's February 5, 2010
placement in confinement, or his being subjected to psychological
testing.

Exhibit 6.

complaint

about

the

Also, the content of the grievance is a
actions

of

Sgt.

Wheeler

at

GCI,

a

non-

defendant, and the relief sought in the grievance is sanctions
against Sgt. Wheeler.

Id.

Given these facts, the Court concludes that the December 19,
2009 grievance of reprisal against Defendant Hale did exhaust

10

The Court finds that the grievance of reprisal dated January
12, 2010, did not properly exhaust administrative remedies because
it did not comply with the requirements of the inmate grievance
procedure.
See Exhibit 3.
Plaintiff failed to clearly state
therein the reason for not initially bringing his complaint of
retaliation and reprisal to the attention of institutional staff.
As such, it failed to comply with the inmate grievance procedure.
23

Plaintiff's claim that he was disciplined by Defendant Hale by
having his locker searched in retaliation for filing grievances.
See Exhibit E at 2.

The record also demonstrates, however, that

Plaintiff failed to exhaust his remaining claims about being
disciplined in retaliation for filing grievances.
reasonable

inferences,

Plaintiff

had

access

process and repeatedly used the process.

to

Based on all
the

grievance

Plaintiff was obviously

aware of the grievance process, including how to properly prepare
and submit a grievance of reprisal, avoiding the requirement of
filing a grievance at the institutional level.
Upon review, the Court finds that the administrative process
was available to Plaintiff.

Of import, not only was it available,

Plaintiff used the grievance process to exhaust his claim against
Defendant Hale.

However, Plaintiff has not shown that he properly

filed grievances and fully exhausted his administrative remedies in
compliance

with

the

procedural

rules

against

the

remaining

Defendants with regard to his claim about being disciplined in
retaliation for filing grievances by being placed in confinement
and by being subjected to a psychological test.
In light of the above, Plaintiff failed to exhaust his
administrative remedies before filing a lawsuit to seek judicial
redress against Defendants Hill, Crews, and Pendleton.

The only

claim that has been properly exhausted is Plaintiff's claim against
Defendant Hale for disciplining Plaintiff for filing grievances by

24

directing officers to search Plaintiff's locker.
Exhibit E.
should

be

See Plaintiff's

Therefore, the Court concludes that Defendants' Motion
granted

for

Plaintiff's

failure

to

exhaust

his

administrative remedies, except with respect to Plaintiff's claim
against Defendant Hale for allegedly disciplining Plaintiff for
filing grievances by directing officers to search Plaintiff's
locker.

As such, Defendants Hill, Crews, and Pendleton are due to

be dismissed from this action.
B.

Retaliation

With respect to a claim of a First Amendment violation in a
prison setting, the rights to free speech and to petition the
government for a redress of grievances are violated when a prisoner
is punished for filing a grievance or a lawsuit concerning the
conditions of his imprisonment.

Moulds v. Bullard, 345 F. App'x

387, 393 (11th Cir. 2009) (per curiam) (citation omitted); Douglas
v. Yates, 535 F.3d 1316, 1321 (11th Cir. 2008); see also Bennett v.
Hendrix, 423 F.3d 1247, 1250, 1254 (11th Cir. 2005) (adopting the
standard

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 First Amendment
rights"), cert. denied, 549 U.S. 809 (2006).

Simply put, prison

officials may not retaliate against inmates for filing lawsuits or
administrative grievances.

Wright v. Newsome, 795 F.2d 964, 968

(11th Cir. 1986) (per curiam).

25

"The core of [a retaliation claim brought pursuant to 42
U.S.C. § 1983] is that the prisoner is being retaliated against for
exercising his right to free speech."

O'Bryant v. Finch, 637 F.3d

1207, 1212 (11th Cir. 2011) (per curiam) (citation omitted), cert.
denied, 133 S.Ct. 445 (2012).

Also of import, three elements are

involved in a retaliation claim:
[T]he inmate must establish that: "(1) his
speech was constitutionally protected; (2) the
inmate suffered adverse action such that the
[official's] allegedly retaliatory conduct
would likely deter a person of ordinary
firmness from engaging in such speech; and (3)
there is a causal relationship between the
retaliatory
action
[the
disciplinary
punishment] and the protected speech [the
grievance]."
Id.

(first

alteration

added,

remainder

in

original)(footnote

omitted) (quoting Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir.
2008)).
In order to establish the third prong, a plaintiff is required
to

do

more

motivations

than
and

make
must

"general
articulate

attacks"

upon

"affirmative

a

defendant's

evidence"

of

retaliation to prove the requisite motive. Crawford-El v. Britton,
523 U.S. 574, 600 (1998) (citations omitted). "In other words, the
prisoner must show that, as a subjective matter, a motivation for
the defendant's adverse action was the prisoner's grievance or
lawsuit."

Jemison v. Wise, 386 F. App'x 961, 965 (11th Cir. 2010)

(per curiam) (citation omitted) (finding the district court erred
by dismissing a complaint alleging retaliation with prejudice,
26

"regardless of whether the retaliation claim ultimately [would]
ha[ve] merit").
To establish subjective intent, a prisoner must provide more
than conclusory assertions, possibly through a chronology of events
that can be used to infer retaliatory intent.

Williams v. Brown,

347 F. App'x 429, 435 (11th Cir. 2009) (per curiam) (finding
conclusory allegations insufficient but officer's temporal reaction
to a grievance and circumstantial evidence sufficient to state a
claim).

However, because jailers actions are presumed reasonable,

an inmate must produce evidence to support "specific, nonconclusory
factual

allegations

cognizable injury."

that

establish

improper

motive

causing

Crawford-El, 523 U.S. at 598.

Finally, where a plaintiff makes a prima facie showing that
constitutionally protected conduct was a substantial or motivating
factor in a defendant's decision to take an adverse action against
the plaintiff, summary judgment in favor of the defendant is still
appropriate if the defendant can demonstrate that he would have
taken the same action even without such impetus.

Mt. Healthy City

Bd. of Ed. v. Doyle, 429 U.S. 274, 287 (1977); Crawford-El, 523
U.S. at 593; Mosley, 532 F.3d at 1278.
Defendants address the retaliation claim in their Motion.
Defendants' Motion at 10-14.
dispute

that

Plaintiff's

Apparently, Defendant Hale does not

administrative

grievances

constitute

protected action, leaving only the second and third elements,

27

whether Hale's actions would likely deter a person of ordinary
firmness from engaging in such speech and whether there is a causal
relationship between the retaliatory action [the search] and the
protected speech [the grievance].

The Court finds that the second

prong has been met because pretextual cell/locker searches would
likely deter a person of ordinary firmness from filing grievances.
O'Bryant, 637 F.3d at 1209.
With

regard

affirmative

to

"evidence

Defendant Hale.

the
of

third

prong,

retaliatory

Id. at 1219.

Plaintiff
animus"

on

must
the

present
part

of

Defendant Hale, the property room

sergeant at PCI, states the following in her Declaration:
As
property
room
sergeant
I
was
responsible for inmate property.
As the
property sergeant I was not responsible for
requesting the search of inmate cells.
Nor
did I send anyone to inmate Jackson's cell to
have it searched.
Ex. B (enumeration omitted).
Defendant Hale has met her initial burden of showing this
Court, by reference to her sworn Declaration, that there are no
genuine issues of material fact that should be decided at trial
with respect to this claim.

She has testified that she is not

responsible for cell searches as a property room sergeant, and she
did not send anyone to search Plaintiff cell to conduct a search.
She has further explained that her responsibility is over inmate
property as the property room sergeant, not cell searches.

28

In his Response, Plaintiff states that "it can be inferred
that [Hale] did, in fact, send her subordinates to perform a
pretextual search (Her sarcastic smile could be 'inferred' she was
involved indirectly[.]" Response at 9.

Plaintiff, in his Opposing

Declaration, describes the incident as follows:
Shortly after I mailed the formal
complaint pertaining to L. Crews and C. Hale
to the regional Director,[11] I was retaliated
against by pretextual cell and locker search
conducted by T. Pinkston, B. R. Davis, and
Hopkins (all three of whom work in the
property room and operate under the direct
supervision of defendant C. Hale). It was at
that time that I had additional personal
property confiscated.
I also received a
corrective consultation for possessing the
alleged contraband property. (Exhibit[s] D,
E, and No. 3).
Plaintiff's Exhibit 4 at 3.
When asked during his deposition how Hale retaliated against
him, Plaintiff said: "[w]ell I'm assuming –- because I don't know
for sure –- that she sent those other officers to harass me, cell
search –- you know."

Ex. F at 16.

Plaintiff explained that his

assumption that Defendant Hale was involved in directing the search
of his locker was based on the following:
A.
She sent subordinates to my –- they shook
me down –- you know, go through your locker
and –- you know, harass me.

11

This "formal complaint" would be outside the administrative
remedies recognized by the FDOC and set forth in the F.A.C.;
therefore, it had no impact on exhaustion and would not be
addressed in an administrative response.
29

Q.

She sent them?

A.
Yes.
her.
Q.

I can't say what –- they worked for

They worked for her?

A.
Yes.
Ms. Pickett, they work in the
property room. She's over the property room.
So, I felt that she sent those individuals,
but I never wrote any grievances about that.
Ex. F at 10.
Plaintiff

must

go

beyond

the

pleadings

and

by

his

own

affidavits, depositions, answers to interrogatories, or admissions
on file, designate specific facts showing that there is a genuine
issue for trial.

Here, Plaintiff has not provided evidence to

refute Defendant Hale's claim that she is not responsible for
ordering cell searches and she did not send anyone to search
Plaintiff's cell.

Indeed, Plaintiff has produced nothing, beyond

his own conclusory allegations, to support his claim that Hale,
motivated

by

retaliatory

animus,

ordered

officers

to

search

Plaintiff's cell.
Again, Plaintiff merely surmises that Defendant Hale was in
some way responsible for the fact that Plaintiff's locker was
searched.

Although Plaintiff may believe that Hale directed

officers to conduct a cell search, an affidavit, sworn complaint or
deposition based on belief is not sufficient to defeat summary
judgment by creating a genuine issue of fact about the existence of
that certain fact.

30

The Eleventh Circuit, in Pace v. Capobianco, 283 F.3d 1275,
1278-79

(11th

Cir.

2002)

(footnote

omitted),

outlined

what

constitutes statements that are sufficient to create a fact issue:
The Rules are clear: "Supporting and opposing
affidavits
shall
be
made
on
personal
knowledge."
Fed.R.Civ.P. 56(e) (emphasis
added).
Rule 56(e)'s personal knowledge
requirement prevents statements in affidavits
that are based, in part, "upon information and
belief" --instead of only knowledge-- from
raising genuine issues of fact sufficient to
defeat summary judgment.
See Stewart v.
Booker T. Washington Ins., 232 F.3d 844, 851
(11th Cir. 2000) ("upon information and
belief" insufficient); Fowler v. Southern Bell
Tel. and Tel. Co., 343 F.2d 150, 154 (5th Cir.
1965) ("knowledge, information and belief"
insufficient); Robbins v. Gould, 278 F.2d 116,
118 (5th Cir. 1960) ("knowledge and belief"
insufficient). Likewise, an affidavit stating
only that the affiant "believes" a certain
fact exists is insufficient to defeat summary
judgment by creating a genuine issue of fact
about the existence of that certain fact.
Jameson v. Jameson, 176 F.2d 58, 60 (D.C. Cir.
1949) ("Belief, no matter how sincere, is not
equivalent to knowledge."); see also Tavery
v. United States, 32 F.3d 1423, 1426 n.4 (10th
Cir. 1994); Hansen v. Prentice-Hall, Inc., 788
F.2d 892, 894 (2d Cir. 1986).
Even if the
affidavit is otherwise based upon personal
knowledge (that is, includes a blanket
statement within the first few paragraphs to
the effect that the affiant has "personal
knowledge of the facts set forth in th[e]
affidavit"), a statement that the affiant
believes something is not in accordance with
the Rule.
See Certmetek, Inc. v. Butler
Avpak, Inc., 573 F.2d 1370, 1377 (9th Cir.
1978) (equating "I understand" statement in
affidavit
to
inadmissible
"I
believe"
statements and concluding that statement is
inadmissible despite general averment to
personal knowledge at beginning of affidavit).

31

Plaintiff surmises, believes, and suspects that Hale, with
retaliatory animus, directed the search of Plaintiff's cell and
locker.

This does not equate with knowledge.

Pursuant to Rule

56(e), the statement must be made "on personal knowledge" in order
to raise a genuine issue of fact sufficient to defeat Defendant
Hale's motion for summary judgment.
personal

knowledge

as

to

whether

Here, Plaintiff has no

Hale

directed

a

search

of

Plaintiff's cell in retaliation for Plaintiff's filing grievances.
He simply surmises that it had to be so because a search was
conducted by officers and some of Plaintiff's property was seized
as suspected contraband.
In sum, "insufficient competent evidence exists to support
Plaintiff's

version

of

the

facts"

regarding

the

claim

that

Defendant Hale directed the officers to conduct a cell search in
retaliation for Plaintiff filing grievances.
1278.

Pace, 283 F.3d at

There is no real basis in the record for this factual issue

to be considered genuine.
Plaintiff has failed to allege specific facts or provide any
documents demonstrating that, as a subjective matter, a motivation
for directing the cell search was Plaintiff's filing grievances and
that Defendant Hale actually directed the officers to conduct the
search of Plaintiff's cell or even had the authority to do so since
she was in charge of the property room.
Hale's Motion is due to be granted.

32

Accordingly, Defendant

The Court will make an alternative ruling with regard to
Defendants

Hill,

Crews

and

Pendleton.

With

regard

to

the

unexhausted claims against them, Plaintiff has failed to show any
causal connection between the named Defendants and the claim that
he was disciplined in retaliation for filing grievances.

In fact,

in his deposition, Plaintiff clearly states that a captain, a nondefendant, placed him in administrative confinement for being a
writ writer, not by direction of one of the Defendants.
6.

Ex. F at

Furthermore, the alleged retaliatory psychological testing

occurred at TCI, not PCI.

Ex. F at 11-12.

In his deposition,

Plaintiff testified that TCI psychiatrists asked him questions
because Plaintiff was on a hunger strike, and they deemed it
necessary to evaluate Plaintiff because they feared he was harming
himself as he had become dehydrated.

Id. at 12.

Thus, Plaintiff

has failed to show a causal connection between the Defendants in
this action and the decision to conduct psychological testing or an
examination of Plaintiff at TCI due to Plaintiff's prolonged hunger
strike.
As a result, the Court finds that the Defendants are entitled
to summary judgment.

Accordingly, Defendants' Motion is due to be

granted.

33

C.

Qualified Immunity

In the alternative, Defendants contend that they are entitled
to qualified immunity because Plaintiff has failed to demonstrate
a First Amendment violation.

Defendants' Motion at 14-15.

The Eleventh Circuit discussed the requirements for a public
official to receive qualified immunity:
To receive qualified immunity, [a] public
official must establish that he was engaged in
a "discretionary function" at the time he
committed
the
allegedly
unlawful
act.
Holloman ex. rel. Holloman v. Harland, 370
F.3d 1252, 1263-64 (11th Cir. 2004) . . . .
If the official demonstrates that he was
engaged in a discretionary function, the
burden shifts to the plaintiff to prove that
the official is not entitled to qualified
immunity.
Cottone v. Jenne, 326 F.3d 1352,
1358 (11th Cir. 2003).
This requires
plaintiff to satisfy the two-part test
prescribed by the Supreme Court in Saucier v.
Katz, 533 U.S. 194, 121 S.Ct. 2151, 150
L.Ed.2d 272 (2001).
Under Saucier, a
plaintiff must first show that the defendant
violated a constitutional right and then
demonstrate that the constitutional right was
clearly established at the time of the alleged
wrongful act. 533 U.S. at 201, 121 S.Ct. at
2156.
If a court, after viewing all the
evidence in the light most favorable to the
plaintiff and drawing all inferences in his
favor, determines that the plaintiff has
satisfied
these
two
requirements,
the
defendant may not obtain qualified immunity.
Holloman, 370 F.3d at 1264.
Bryant v. Jones, 575 F.3d 1281, 1295 (11th Cir. 2009), cert.
denied, 559 U.S. 940 (2010).

Following the United States Supreme

Court's decision in Pearson v. Callahan, 555 U.S. 223, 236 (2009),
this Court is "free to consider these elements in either sequence
34

and to decide the case on the basis of either element that is not
demonstrated."

Youmans v. Gagnon, 626 F.3d 557, 562 (11th Cir.

2010) (per curiam).
It is undisputed that Defendants were engaged in discretionary
functions during the events in question.
violate

Plaintiff's

constitutional

The Defendants did not

rights

and

are

therefore

entitled to qualified immunity.
VII.

Summary Judgment

Based on all of the above, the Defendants are entitled to
summary judgment, and judgment shall be entered for the Defendants
and against the Plaintiff.
Therefore, it is now
ORDERED:
1.

Defendants' Motion for Summary Judgment (Doc. 88) is

GRANTED, and the Clerk shall enter judgment for Defendants Lynn
Hill, L. Crews, Lieutenant Pendleton, and Sgt. Hale.
2.

The Clerk shall enter judgment accordingly and close this

case.
DONE AND ORDERED at Jacksonville, Florida, this 1st day of
June, 2016.

35

sa 5/25
c:
Ira C. Jackson
Counsel of Record

36