Santiago v. Hall et al
Filing
62
ORDER granting in part and denying in part 51 Motion for summary judgment, granting 51 only to the extent that Plaintiff's First Amendment and Fourteenth Amendment claims are dismissed, denying 51 in all other respects; striking [57 at 1-16] and 61 declarations; Defendants shall file their pretrial narrative statement by October 10, 2014. Signed by Judge Brian J. Davis on 9/24/2014. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ANGEL SANTIAGO,
Plaintiff,
v.
Case No. 3:13-cv-177-J-39PDB
M. HALL, et al.,
Defendants.
ORDER
I. Status
Plaintiff, an inmate of the Florida penal system who is
proceeding pro se, initiated this case by filing a Civil Rights
Complaint
(Complaint)
(Doc.
1).
He
names
the
following
correctional officers employed at Florida State Prison as the
Defendants in this action: (1) Officer B. Rowe; (2) Officer L.
Jackson; (3) and Sergeant M. Hall.
Plaintiff claims that his
rights under the Eighth Amendment were violated on August 23, 2012,
when Defendants Rowe and Jackson and Hall used unnecessary and
excessive force upon Plaintiff in violation of the Eighth Amendment
to the United States Constitution.
Plaintiff claims Defendants
Rowe and Jackson failed to stop Defendant Hall's abuse in violation
of the Eighth Amendment.
Plaintiff also claims a violation of the
First Amendment to the United States Constitution, asserting that
the officers beat him in the shower in retaliation for Plaintiff's
past conduct of stabbing an officer.
Finally,
Plaintiff claims a
violation under the Due Process Clause of the Fourteenth Amendment.
This cause is before the Court on Defendants' Motion for
Summary Judgment (Motion for Summary Judgment) (Doc. 51) and Notice
of Filing Evidence in Support of Motion for Summary Judgment (Doc.
53).1
The Court had previously advised Plaintiff of the provisions
of Fed. R. Civ. P. 56, and gave him an opportunity to respond.
Order (Doc. 7).
See also Notice (Doc. 52).
Response
57)
(Doc.
and
Supplemental
See
Plaintiff filed a
Response
(Doc.
61).
Plaintiff's Declaration in Opposition to Defendants' Motion for
Summary of Judgment (Doc. 57 at 1-16) will be stricken by the Court
as it is not sworn to under penalty of perjury; therefore, it does
not comply with the requirements of 28 U.S.C. § 1746.
Also,
Plaintiff's Supplemental Response, which consists of a Declaration
in Opposition to Defendants' Motion for Summary of Judgment (Doc.
61), will be stricken by the Court as it is not sworn to under
penalty of perjury; therefore, it too does not comply with the
requirements of 28 U.S.C. § 1746.
Thus, these two Declarations
will not be considered by the Court.2
1
The Court will refer to the exhibits submitted in support of
Defendants' Motion for Summary Judgment as "Ex."
2
Unsworn declarations cannot be considered by this Court in
addressing a summary judgment motion. Carr v. Tatangelo, 338 F.3d
1259, 1273 n.26 (11th Cir. 2003).
Since unsworn declarations
"plainly do not pass summary judgment muster[,]"
MacDonald v.
2
II.
Summary Judgment Standard
"Summary judgment is appropriate only if 'the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.'"
Moton v.
Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011) (quoting Fed. R. Civ.
P. 56(a)).
"If the moving party meets this burden, 'the nonmoving
party must present evidence beyond the pleadings showing that a
reasonable jury could find in its favor.'" Ekokotu v. Federal Exp.
Corp., 408 F. App'x 331, 333 (11th Cir.) (per curiam) (quoting
Fickling v. United States, 507 F.3d 1302, 1304 (11th Cir. 2007)),
cert. denied, 132 S.Ct. 420 (2011).
III. Law and Conclusions
A.
"The
Eighth
Eighth Amendment Claim
Amendment
of
the
United
States
Constitution
forbids 'cruel and unusual punishments.' U.S. Const. amend. VIII.
The Eighth Amendment is applicable to the states through the
Fourteenth Amendment."
Bingham v. Thomas, 654 F.3d 1171, 1175
(11th Cir. 2011) (per curiam) (citation omitted).
The Eleventh
Circuit has set forth the standard for an excessive use of force
claim for an inmate:
In both Fourteenth and Eighth Amendment
excessive force claims, whether the use of
force violates an inmate's constitutional
Circle K Stores, Inc., No. 6:08-cv-1825-Orl-22DAB, 2009 WL 113377,
at *1 (M.D. Fla. Jan. 16, 2009), Plaintiff's Declarations will not
be considered by the Court.
3
rights "ultimately turns on 'whether force was
applied in a good faith effort to maintain or
restore
discipline
or
maliciously
and
sadistically for the very purpose of causing
harm.'" Whitley v. Albers, 475 U.S. 312, 32021, 106 S.Ct. 1078, 1085, 89 L.Ed.2d 251
(1986) (quoting Johnson v. Glick, 481 F.2d
1028, 1033 (2d Cir. 1973) (establishing the
standard for an Eighth Amendment excessive
force claim); see Bozeman v. Orum, 422 F.3d
1265, 1271 (11th Cir. 2005) (applying the
Whitley test in a Fourteenth Amendment
excessive force case).
If force is used
"maliciously and sadistically for the very
purpose of causing harm," then it necessarily
shocks the conscience.
See Brown v. Smith,
813 F.2d 1187, 1188 (11th Cir. 1987) (stating
that the Eighth and Fourteenth Amendments give
equivalent
protections
against
excessive
force). If not, then it does not.
Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007) (per
curiam).
"Even when an officer is not a participant in the
excessive force, he can still be liable if he fails to take
reasonable steps to protect the victim." Ledlow v. Givens, No. 1212296, 2012 WL 6176471, at *4 (11th Cir. Dec. 12, 2012) (per
curiam) (not selected for publication in the Federal Reporter)
(citation omitted), cert. denied, 133 S.Ct. 2802 (2013).
The parties present contradictory versions of what happened on
August 23, 2012.
Defendant Hall denies using any force against
Plaintiff on August 23, 2012.
Ex. B at 1-2.
He states that the
only injuries Plaintiff suffered were self-inflicted injuries. Id.
at 2.
He also states that he was unaware that Plaintiff had
previously stabbed Officer Easterwood.
Id. Defendant Rowe also
states that Plaintiff's injuries were self-inflicted.
4
Ex. C at 1-
2.
Defendant Rowe attests that he did not hit or threaten to hit
Plaintiff.
Id. at 2.
He also states that he did not know about
the stabbing of Officer Easterwood by Plaintiff.
Id.
Defendant
Jackson attests that he did not hit or threaten to hit Plaintiff on
August 23, 2012.
Ex. D at 1.
Defendant Jackson states that the
last time he saw Plaintiff on that date, Plaintiff had no injuries.
Id. at 2. Finally, Defendant Jackson attests that he was not aware
of the stabbing of Officer Easterwood by Plaintiff.
Id.
Nurse Dana Warner (formerly Finley), in her sworn Declaration,
states that, on August 23, 2012, she received a call that Plaintiff
was banging his head in his cell.
Ex. E at 1.
When she arrived on
the wing, she observed Plaintiff hitting his head against the wall
and rubbing his head.
injuries.
Id.
Id.
At medical, she evaluated Plaintiff's
She found minor abrasions to the left side of his
face around his eye and lower lip.
redness to his right arm.
Id.
Id.
She also found minor
She did not observe any other
injuries. Id. Nurse Warner attests that she recorded all injuries
and did not falsify the medical report.
Id.
Nurse Warner
determined that no treatment was necessary, but Plaintiff could
access sick call as needed.
Id. at 1-2.
health referral for Plaintiff.
Id. at 2.
She completed a mental
Plaintiff told her that
he had been abused by staff, but he did not identify the officers
or specify what they had done to him.
5
Id.
Dr.
Leonard
Schlofman,
an
optometrist
with
the
Florida
Department of Corrections, states in his sworn Declaration that he
examined Plaintiff on October 5, 2012.
Ex. F. at 1.
Plaintiff
complained of shadows in his left eye due to being subjected to a
use of force.
Id.
Dr. Schlofman found no damage due to trauma.
Id.
find
Plaintiff
He
did
needed
corrective
lenses
due
to
ambloypia of the left eye, a condition that causes refractive error
in the eye.
Id.
Dr. Schlofman states that this eye condition is
not caused by trauma.
Id.
Officer Kyle Grandy, in his Declaration, states that he
assisted in placing Plaintiff into cell B1-202S upon Plaintiff's
return from medical, and Officer Rowe provided escort services.
Ex. G at 1.
Plaintiff had no injuries to his face or eyes.
Id.
Upon being secured in his cell, Plaintiff began banging his head
against the wall of his cell.
Id.
He also began beating his head
and face on the corner of his cell door and wall.
Id.
Defendant
Rowe and Nurse Finley observed Plaintiff beating his head.
Staff escorted Plaintiff to medical.
6
Id.
Id.
Plaintiff, on the other hand, in his verified Complaint,3
states that Defendants Hall and Rowe were his escorts to medical on
August 23, 2012, as Plaintiff declared a psychological emergency.
Complaint at 6, 8. Defendant Hall mentioned to other officers that
Plaintiff stabbed correctional officer Easterwood.
Id. at 8.
Defendant Hall began verbally abusing Plaintiff, calling him names,
and threatening to beat Plaintiff for stabbing Easterwood.
Id.
Defendant Rowe also threatened to put his hands on Plaintiff.
Id.
When they arrived at the clinic waiting area, Defendant Hall told
Plaintiff to spit in his face so that Hall could knock out
Plaintiff's teeth.
Id.
Defendant Jackson asked Plaintiff if it
was true that Plaintiff had stabbed an officer.
Id.
Plaintiff
ignored the question, and Defendant Jackson grabbed Plaintiff's
left arm and repeated the question.
respond.
Id.
Plaintiff did not
Id.
Plaintiff walked into Dr. Lim's office with Mr. Bailey and
informed them that the escort officers were threatening to jump on
him and he feared going to B wing.
3
Id. at 8-9.
Dr. Lim told
The Complaint is signed by Plaintiff, dated, and provided
"under penalty of perjury[.]" Complaint at 14. Factual statements
in a verified complaint must be given the same weight as an
affidavit. See Stallworth v. Tyson, No. 13-11402, 2014 WL 4215438,
at *2 (11th Cir. Aug. 27, 2014) (per curiam) (citations omitted)
("The factual assertions that [Plaintiff] made in his [complaint]
should have been given the same weight as an affidavit, because he
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.").
7
Plaintiff he was going to be fine and that the officers would not
jump on him.
Id.
Defendants Hall and Jackson grabbed Plaintiff's
arms and escorted him to B wing to be placed in a SHOS cell.4
Id.
Upon arriving on B wing, Defendants Hall, Rowe and Jackson took
Plaintiff to the second floor shower.
Plaintiff in the last shower stall.
Id.
Id.
Defendants placed
Defendant Hall entered
the shower stall with Plaintiff, ordered Plaintiff to turn around
so that he could remove the restraints, and Hall removed all
restraints except for the handcuffs.
Id.
Defendant Hall turned
Plaintiff towards him, pushed Plaintiff against the shower wall,
and grabbed Plaintiff's throat.
Id.
Defendant Hall threatened to
knock out Plaintiff's teeth and punched Plaintiff in the face and
eyes.
Id.
Defendant Rowe stepped into the shower and punched
Plaintiff in the face and left eye.
Id. at 9-10.
Jackson punched Plaintiff in the face and eye area.
Defendant
Id. at 10.
At this point, Defendant Hall threatened to kill Plaintiff.
Id.
Defendant Rowe said he was going to remove the handcuffs so
that they could fight.
Id.
Plaintiff said he was straight, and
Defendant Rowe punched him in the head.
punched Plaintiff in the body and left ribs.
Id.
Defendant Hall
Id.
Afterwards, the officers placed Plaintiff in a SHOS shroud and
escorted him to cell B-1202.
would report them.
4
Id.
Id.
Plaintiff told the officers he
The wing Sergeant told Plaintiff that the
A SHOS cell is a self-harm observation status cell.
8
officers jumped on him because Plaintiff stabbed Easterwood.
Id.
Inmate Antonio Buckman, observing the bruises on Plaintiff's face,
asked Plaintiff if he was jumped on in the shower, and Plaintiff
told him yes.
Id.
Defendant Rowe, standing at the cell door, told
Plaintiff to stop banging his head against the wall. Id. at 10-11.
Plaintiff was not banging his head against the wall.
Id. at 11.
Correctional Officer K. Grandy approached Plaintiff's cell and told
him to stop banging his head against the wall.
Id.
Claiming he
had been assaulted, Plaintiff requested to see a nurse.
Id.
Lt.
Griffis asked Plaintiff what was going on, and Plaintiff requested
to see a nurse.
Id.
Lt. Griffis told Plaintiff to stop banging
his head against the wall.
Plaintiff's cell.
Id.
Id.
Nurse D. Finley approached
Plaintiff told her he was jumped on by
three officers and that he had not been banging his head against
the wall.
Id.
When Nurse Finley evaluated Plaintiff's injuries,
she failed to note all of his injuries and falsified the medical
documents, claiming Plaintiff was banging his head on the wall, but
ceased banging his head and declared staff abuse when he saw
medical staff standing at his cell door.
Id.
Plaintiff asserts that he was severely beaten in the shower by
the Defendants, even though he was not resisting or posing any
threat to the officers, and that, as a result of the beating, he
suffered from a left swollen eye with visible blood spots; blurred
vision; a swollen right eye; abrasions to the right side of his
9
face; an abrasion to the left lip; abrasions on both arms; an
abrasion to the back of the head; pain in his ribs, chest and back;
and permanent eye damage, requiring prescription glasses.
12.
Id. at
Plaintiff states Defendants Rowe and Jackson failed to
intervene and protect him from the beating by Hall.
Id.
The parties have submitted sworn materials to support their
respective positions.
Defendants assert there was no use of force
upon Plaintiff on August 23, 2012.
Plaintiff claims all three
Defendants used excessive force, two Defendants failed to take
steps to stop the use of force by Defendant Hall, and that the
nurse failed to record all of his injuries and falsified documents
by stating that Plaintiff was banging his head against his cell
wall.
The evidence submitted by the parties is inconclusive.
See
Mathis v. Adams, No. 14-10605, 2014 WL 4067751, at *2 (11th Cir.
2014) (per curiam) (finding denial of summary judgment appropriate
in a claim of excessive force which allegedly occurred during an
altercation in the prison shower room). Plaintiff alleges that the
assault occurred in the shower area.
The question remains as to
whether Defendants Hall, Rowe, and Jackson used force maliciously
and
sadistically
for
the
very
purpose
of
causing
harm.
An
additional question remains as to whether Defendant Rowe and
Jackson failed to protect Plaintiff from the actions of Defendant
Hall.
10
Moreover, Plaintiff's medical records reflect that when Nurse
Finley examined Plaintiff on August 23, 2012, he alleged staff
abuse.
(Doc. 57-2 at 2).
He complained of pain in his ribs, chest
and back, with the level of pain being eight in a scale of one to
ten.
Id.
Nurse Finley noted minor abrasions on the left side of
his face around his eye, a minor abrasion to his lower lip, and
minor redness on his right arm.
Id.
Plaintiff was seen in the Emergency Room on August 24, 2012
claiming injury from staff abuse that he claimed occurred on August
23, 2012.
Id. at 8, 10.
Plaintiff's left eye.
both inner arms.
of his head.
Id.
Id.
Nurse Reynolds noted moderate swelling to
Id. at 8.
She also noted minor bruising to
She found a superficial abrasion to the back
She noted minor bruising to Plaintiff's right
eye.
Id.
She found a superficial abrasion to Plaintiff's bottom
lip.
Id.
She discovered superficial scratches on both ankles.
Id.
She found Plaintiff to be ambulating with difficulty.
Id.
Nurse Reynolds notified a physician of her findings and provided
treatment to Plaintiff.
Id.
The next day, August 24, 2012, Plaintiff complained of left
facial pain and a headache.
(Doc. 57-3 at 4).
a
rule
left
orbital
x-ray
to
medication for Plaintiff.
out
Id. at 5.
Dr. Hercule ordered
fractures
and
prescribed
Medical staff scheduled
Plaintiff for an x-ray at the Reception and Medical Center (RMC).
11
(Doc. 57-2 at 6).
The x-ray, completed on August 29, 2012, did not
show an orbital fracture.
(Doc. 57-3 at 6).
Summary judgment is appropriate if the pleadings and other
evidence demonstrate that "there is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a matter
of law."
Fed. R. Civ. P.
Based on a thorough review of the
Complaint, sworn Declarations, and other evidence before the Court,
the Court finds there are material issues of fact with respect to
the Eighth Amendment claim of excessive force and failure to
protect. Although Defendants deny beating Plaintiff or abusing him
in any way and deny failing to intervene to prevent the beating or
abuse, Plaintiff has presented a verified Complaint contending
otherwise.
The parties have submitted different stories, and the
conflicting versions of the events are enough to defeat summary
judgment. See Logan v. Smith, 439 F. App'x 798, 800-801 (11th Cir.
2011) (per curiam) (deciding the video and medical evidence did not
flatly contradict the inmate's allegations, disallowing plenary
summary
judgment
on
the
excessive
force
claim,
finding
it
inappropriate, and determining the evaluation of the evidence is a
matter for a jury); Hall v. Bennett, 447 F. App'x 921, 923 (11th
Cir. 2011) (per curiam) (citation omitted) (acknowledging that the
focus of the inquiry is on the nature of the force applied, not the
extent of injury, and recognizing that there were two competing,
contradictory stories with a record presenting a material issue of
12
fact concerning an alleged assault by an officer on an inmate,
precluding summary judgment).
Based on the Court's core judicial inquiry in excessive force
claims, addressing the nature of the force rather than focusing on
the extent of the injury, the Court concludes that Defendants'
Motion
for
Summary
Judgment
will
be
denied
with
respect
to
Plaintiff's excessive force claim and failure to protect claim
because there are genuine issues of material fact that prevent the
entry of summary judgment at this stage of the proceeding. Wilkins
v. Gaddy, 559 U.S. 34, 39 (2010) (per curiam) (recognizing the
shift in the judicial inquiry from the extent of the injury to the
nature of the force, and asking whether the force was applied
maliciously and sadistically to cause harm).
B. 42 U.S.C. § 1997e(e)
Defendants contend that Plaintiff has not suffered an injury
sufficient to withstand 42 U.S.C. § 1997e(e).
Judgment at 5-11.
Motion for Summary
The Eleventh Circuit addressed the requirements
of 1997e(e):
Subsection (e) of 42 U.S.C. § 1997e
states that "[n]o Federal civil action may be
brought by a prisoner confined in a jail,
prison, or other correctional facility, for
mental or emotional injury suffered while in
custody without a prior showing of physical
injury." This statute is intended to reduce
the number of frivolous cases filed by
imprisoned plaintiffs, who have little to lose
and excessive amounts of free time with which
to pursue their complaints.
See Harris v.
Garner, 216 F.3d 970, 976-79 (11th Cir. 2000)
13
(en banc) (surveying the legislative history
of the PLRA). An action barred by § 1997e(e)
is barred only during the imprisonment of the
plaintiff; therefore, such action should be
dismissed without prejudice by the district
court, allowing the prisoner to bring his
claim once released and, presumably, once the
litigation cost-benefit balance is restored to
normal. Id. at 980.
Tracking the language of the statute, §
1997e(e) applies only to lawsuits involving
(1) Federal civil actions (2) brought by a
prisoner (3) for mental or emotional injury
(4) suffered while in custody. In Harris, we
decided that the phrase "Federal civil action"
means
all
federal
claims,
including
constitutional claims. 216 F.3d at 984-85.
Napier v. Preslicka, 314 F.3d 528, 531-32 (11th Cir. 2002), cert.
denied, 540 U.S. 1112 (2004).
The Eleventh Circuit 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
14
omitted).[5] 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 v. Sheriff, 520 F. App'x 903, 905 (11th Cir. 2013) (per
curiam).
The record shows that Plaintiff suffered some injuries.6
He
was treated for his injuries, provided with pain medication, and
the doctor sent him to RMC for x-rays to rule out an orbital
fracture.
Under these circumstances the Court is not inclined to
find that the injuries are de minimis.
In the alternative, Plaintiff is bringing a federal civil
action, he is a prisoner, and he is seeking compensatory and
punitive damages. However, Plaintiff also requests "such other and
further relief as this Court may deem just[,] proper[,] and
equitable."
Complaint at 14.
Liberally construed, such a prayer
for relief could include a request for nominal damages.
See Hale
v. Sec'y for Dep't of Corr., 345 F. App'x 489, 492 (11th Cir. 2009)
(per curiam) (finding that "[t]he district court erred when it
found that [the plaintiff] was not seeking nominal damages because
it failed to construe his pro se pleadings liberally").
5
See Whitley v. Albers, 475 U.S. 312, 321 (1986).
6
Plaintiff asserts that the nurse failed to document some
injuries. Of course, the cause of the injuries is in dispute.
15
The extent and cause of Plaintiff's injuries are in dispute.
However, even assuming arguendo that Plaintiff's injuries are de
minimis, construing Plaintiff's Complaint liberally, Plaintiff
could still be entitled to nominal damages if he prevailed at
trial.
Thus, 42 U.S.C. § 1997e(e) does not provide a basis for
dismissing this case at this time.
C.
Fourteenth Amendment Claim
Plaintiff, in his statement of claim, states that he raises a
Fourteenth Amendment claim under the Due Process Clause. Complaint
at 6.
The Court notes that if, at the time of the events at issue,
Plaintiff had been a pretrial detainee, "his Cruel and Unusual
Punishment
claims
[would]
sound
properly
in
the
Fourteenth
Amendment right to due process of law rather than in the Eighth
Amendment."
Taylor v. Adams, 221 F.3d 1254, 1257 n. 3 (11th Cir.
2000) (citations omitted), cert. denied, 531 U.S. 1077 (2001).
In
this instance, however, Plaintiff is a convicted felon confined in
the Florida Department of Corrections, not a pretrial detainee.
Thus, his claim is properly classified as a Cruel and Unusual
Punishment
Clause
claim
under
the
Eighth
Amendment,
not
a
Fourteenth Amendment claim.
To the extent Plaintiff is attempting to raise some other type
of Due Process Clause claim, he has failed to adequately present
his claim and he has utterly failed to present operative facts to
support a such a claim.
Thus, Defendants' Motion for Summary
16
Judgment will be granted with respect to the Fourteenth Amendment
claim.
D.
First Amendment Claim
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).
"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).
There are three elements to such a
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)
17
there is a causal relationship between the
retaliatory action and the protected speech."
Id. (first alteration added, remainder in original) (footnote
omitted) (quoting Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir.
2008)).
Plaintiff
has
not
satisfactorily
retaliation under the First Amendment.
alleged
a
claim
of
Plaintiff does not allege
that any "protected conduct was a motivating factor behind the
harm[.]" Smith v. Fla. Dep't of Corr., 713 F.3d 1059, 1063 (11th
Cir. 2013) (per curiam) (citing Smith v. Mosley, 532 F.3d 1270,
1278 (11th Cir. 2008)).
Instead, Plaintiff claims the officers
retaliated
because
against
him
he
had
stabbed
an
officer.
Plaintiff has failed to allege, or provide supporting evidence,
that he engaged in constitutionally protected speech or conduct and
the Defendants' retaliatory acts adversely affected his protected
speech or conduct.
11-12.
See Defendants' Motion for Summary Judgment at
Upon review, Defendants' Motion for Summary Judgment with
regard to the First Amendment claim is due to be granted.
Therefore, it is now
ORDERED:
1.
Plaintiff's Declaration in Opposition to Defendants'
Motion for Summary of Judgment (Doc. 57 at 1-16) and Plaintiff's
Declaration in Opposition to Defendants' Motion for Summary of
Judgment (Doc. 61) are STRICKEN.
18
2.
Defendants' Motion for Summary Judgment (Doc. 51) is
GRANTED only to the extent that Plaintiff's First Amendment and
Fourteenth Amendment claims are hereby DISMISSED. Judgment to that
effect will be withheld pending adjudication of the action as a
whole.
3.
See Fed. R. Civ. P. 54.
Defendants' Motion for Summary Judgment (Doc. 51) is
DENIED in all other respects.
4.
Defendants shall file their pretrial narrative statement
by October 10, 2014.
DONE AND ORDERED at Jacksonville, Florida this 24th day of
September, 2014.
sa 9/23
c:
Angel Santiago
Counsel of Record
19
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