Zeitoun v. Doe et al

Filing 54

ORDER granting 51 Defendant Riedl's Motion for Summary Judgment and dismissing, without prejudice, the Doe Defendants. The Clerk of the Court is directed to terminate the Doe Defendants, enter judgment in accordance with this Order, and close the case. Signed by Judge Marcia Morales Howard on 9/19/2017. (JW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

ADEL ZEITOUN,
Plaintiff,
v.

Case No. 3:14-cv-432-J-34JRK

WARDEN BRIAN RIEDL,
et al.,
Defendants.

ORDER
I. Status
Plaintiff Adel Zeitoun, an inmate of the Florida penal system,
initiated this action on April 14, 2014, by filing a Civil Rights
Complaint (Doc. 1) pursuant to 42 U.S.C. § 1983. He filed an
Amended Complaint (Doc. 6) on May 19, 2014; a Second Amended
Complaint (Doc. 18) on June 23, 2015; a Third Amended Complaint
(Doc. 26) on July 14, 2016; and a Fourth Amended Complaint (FAC;
Doc. 30) on August 29, 2016. In the FAC, Zeitoun names the
following Defendants: (1) Warden Brian Riedl; (2) John Doe officers
1-12; (3) John Doe lieutenants 1 and 2; (4) Corizon Health Care
(Corizon);1 (5) John Doe dentist; (6) John Doe doctor; and (7) Jane
Doe officer. Zeitoun asserts that the Defendants violated his
federal
1

constitutional

rights

when

they

used

excessive

force

The Court granted Defendant Corizon's Motion to Dismiss or
for Summary Judgment as to Plaintiff's claims against Corizon, and
directed the Clerk to terminate Corizon as a Defendant. See Order
(Doc. 45), filed March 30, 2017.

against him and denied him proper medical care. As relief, he
requests

compensatory

and

punitive

damages.

He

also

seeks

declaratory and injunctive relief.
This matter is before the Court on Defendant Riedl's Motion
for Summary Judgment (Motion; Doc. 51), filed August 1, 2017. In
the Motion, Defendant Riedl asserts that the Court should grant
summary judgment in his favor because: (1) Zeitoun cannot show that
Riedl violated the Eighth Amendment, and (2) Riedl is entitled to
qualified immunity. See Motion at 1, 7-12. In support of the
Motion, Riedl filed portions of Zeitoun's deposition. See Motion,
Exhibit A (Doc. 51-1), Deposition of Adel Zeitoun (Def. Ex. A),
dated June 12, 2017.
The Court advised Zeitoun 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 Summary Judgment Notice (Doc. 52); Order of Special
Appointment; Directing Service of Process Upon Corizon Health and
Warden Brian Riedl; Notice to Plaintiff (Doc. 31) at 4-6, ¶ 13.
Over thirty days have passed since the filing of Defendant's
Motion,

and

Plaintiff

has

failed

to

respond.

Defendant's Motion is ripe for judicial review.

2

Accordingly,

II. Plaintiff's Allegations2
In his verified FAC,3 Zeitoun asserts that: (1) on November 8,
2012, John Doe officers 1, 2, 3, and 4 made derogatory remarks
(relating to the sexual offenses for which he is serving a term of
life imprisonment); (2) on November 8th, John Doe officers 5, 6,
and 7 assaulted Zeitoun; (3) on November 9th, John Doe officers 8,
9, and 10 assaulted Zeitoun; (4) John Doe lieutenants 1 and 2 were
aware of inmate abuse at the Reception and Medical Center (RMC) and
the propensity for abusiveness towards inmates by John Doe officers
3-10, but failed to stop the alleged mistreatment; (5) John Doe
dentist denied Zeitoun treatment for his bleeding mouth and cracked
tooth after the alleged assaults; (6) John Doe doctor denied
Zeitoun medical treatment for his injuries, and called two officers
to assault Zeitoun, but a captain promptly arrived to place Zeitoun
in protective custody; (7) John Doe officer 11 assaulted Zeitoun on
November 13th, and later told inmate Croft that he would give him
extra food if Croft would beat up Zeitoun, and Croft assaulted

2

The facts recited here are drawn from the FAC and may differ
from those that ultimately can be proved. Additionally, because
this matter is before the Court on a motion only brought by Riedl,
the Court's recitation of the facts will focus on Zeitoun's
allegations as to Riedl, not the other Defendants.
3

See Stallworth v. Tyson, 578 F. App'x 948, 950 (11th Cir.
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.").
3

Zeitoun on November 14th; and (8) John Doe officer 12 and Jane Doe
officer failed to give Zeitoun notice of disciplinary charges
against him prior to a hearing on the charges. As to Riedl, Zeitoun
states that Riedl was aware of the pervasiveness of inmate abuse at
RMC, and the propensity for abusiveness towards inmates by John Doe
officers 3-10, but failed to implement a policy to stop the
assaults. See FAC at 6-7, ¶¶ 44-48; 9, ¶¶ 81-83; 15, ¶¶ 153-54; 16,
¶¶ 157-58.
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[],
4

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).
Howard v. Memnon, 572 F. App'x 692, 694-95 (11th Cir. 2014) (per
curiam) (footnote omitted); Hinkle v. Midland Credit Mgmt., Inc.,
827 F.3d 1295, 1300 (11th Cir. 2016).
At the summary judgment stage, the Court assumes all facts in
the light most favorable to Zeitoun, as the non-moving party, and
draws all inferences in his favor. See McKinney v. Sheriff, 520 F.
App'x 903, 905 (11th Cir. 2013) (per curiam). "[T]he dispute about

5

a material fact is genuine . . . if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party."
Hinkle,

827

F.3d

at

1300

(internal

quotations

and

citation

omitted). Summary judgment should be granted "against a party who
fails to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party
will bear the burden of proof at trial." Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). Thus, summary judgment is appropriate
only when, under Zeitoun's version of the facts, "there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law." Felio v. Hyatt, 639 F. App'x 604,
606 (11th Cir. 2016) (per curiam) (internal quotations and citation
omitted). Therefore, summary judgment would be properly entered in
favor of Defendant Riedl where no genuine issue of material fact
exists as to whether Zeitoun's federal constitutional rights were
violated.
IV. Law and Conclusions
A. Riedl's Summary Judgment Motion
Zeitoun

asserts

that

unnamed

officers

assaulted

him

in

November 2012, and seeks to hold Riedl responsible because he was
the

warden

when

the

assaults

allegedly

occurred

at

RMC.

At

deposition, Zeitoun affirmed that he had never seen Riedl, and that
Riedl was not present during the assaults. See Def. Ex. A at 15-16.
According to Zeitoun, he is suing Riedl "[b]ecause he is the

6

warden, and because he know[s] everything [t]hat happen[s] there."
Id. at 17. Zeitoun repeatedly stated that Riedl knew "everything"
that occurred at RMC because of his supervisory position over the
officers. See id. at 17-24, 30, 33, 36.
The United States Court of Appeals for the Eleventh Circuit
has stated:
"Supervisory officials are not liable under
section 1983 on the basis of respondeat
superior or vicarious liability." Belcher v.
City of Foley, Ala., 30 F.3d 1390, 1396 (11th
Cir. 1994) (internal quotation marks and
citation omitted). "The standard by which a
supervisor is held liable in her individual
capacity for the actions of a subordinate is
extremely rigorous." Gonzalez, 325 F.3d at
1234 (internal quotation marks and citation
omitted).[4] "Supervisory liability occurs
either
when
the
supervisor
personally
participates in the alleged constitutional
violation or when there is a causal connection
between actions of the supervising official
and the alleged constitutional deprivation."
Brown v. Crawford, 906 F.2d 667, 671 (11th
Cir. 1990).
"The necessary causal connection can be
established 'when a history of widespread
abuse puts the responsible supervisor on
notice of the need to correct the alleged
deprivation, and he fails to do so.'" Cottone,
326 F.3d at 1360 (citation omitted).[5] "The
deprivations that constitute widespread abuse
sufficient to notify the supervising official
must be obvious, flagrant, rampant and of
continued duration, rather than isolated
occurrences." Brown, 906 F.2d at 671. A
plaintiff can also establish the necessary

4

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

5

Cottone v. Jenne, 326 F.3d 1352 (11th Cir. 2003).
7

causal connection by showing "facts which
support an inference that the supervisor
directed the subordinates to act unlawfully or
knew
that
the
subordinates
would
act
unlawfully and failed to stop them from doing
so," Gonzalez, 325 F.3d at 1235, or that a
supervisor's "custom or policy . . . resulted
in deliberate indifference to constitutional
rights," Rivas v. Freeman, 940 F.2d 1491, 1495
(11th Cir. 1991).
Danley v. Allen, 540 F.3d 1298, 1314 (11th Cir. 2008); see Keith v.
DeKalb Cty., Ga., 749 F.3d 1034, 1047-48 (11th Cir. 2014). In sum,
To state a claim against a supervisory
defendant, the plaintiff must allege (1) the
supervisor's personal involvement in the
violation of his constitutional rights,[6] (2)
the existence of a custom or policy that
resulted in deliberate indifference to the
plaintiff's constitutional rights,[7] (3) facts
supporting an inference that the supervisor
directed the unlawful action or knowingly
failed to prevent it,[8] or (4) a history of
widespread abuse that put the supervisor on
notice of an alleged deprivation that he then
failed to correct. See id. at 1328–29 (listing

6

See Goebert v. Lee Cty., 510 F.3d 1312, 1327 (11th Cir.
2007) ("Causation, of course, can be shown by personal
participation in the constitutional violation.") (citation
omitted).
7

See Goebert, 510 F.3d at 1332 ("Our decisions establish that
supervisory liability for deliberate indifference based on the
implementation of a facially constitutional policy requires the
plaintiff to show that the defendant had actual or constructive
notice of a flagrant, persistent pattern of violations.").
8

See Douglas v. Yates, 535 F.3d 1316, 1322 (11th Cir. 2008)
("Douglas's complaint alleges that his family informed Yates [(an
Assistant Warden)] of ongoing misconduct by Yates's subordinates
and Yates failed to stop the misconduct. These allegations allow a
reasonable inference that Yates knew that the subordinates would
continue to engage in unconstitutional misconduct but failed to
stop them from doing so.").
8

factors in context of summary judgment).[9] A
supervisor cannot be held liable under § 1983
for mere negligence in the training or
supervision of his employees. Greason v. Kemp,
891 F.2d 829, 836–37 (11th Cir. 1990).
Barr v. Gee, 437 F. App'x 865, 875 (11th Cir. 2011) (per curiam).
Here, Riedl points to Zeitoun's deposition as establishing
that Zeitoun has no knowledge or evidence that Riedl was aware of
or causally involved in the alleged pervasive inmate abuse at RMC.
See Motion at 11. Indeed, Zeitoun fails to point to any facts
suggesting that Riedl was personally involved in, or otherwise
causally connected to, the alleged violation of Zeitoun's federal
statutory or constitutional rights. His unsupported, conclusory
allegations that he suffered a constitutionally cognizable injury
are insufficient to withstand a motion for summary judgment. See
Bennett v. Parker, 898 F.2d 1530, 1532, 1534 (11th Cir. 1990).
At summary judgment, a moving party discharges its burden by
"showing" the absence of evidence necessary to support the nonmoving party's claim. Jeffery v. Sarasota White Sox, Inc., 64 F.3d
590, 593 (11th Cir. 1995) (quoting Celotex, 477 U.S. at 325). Once
a moving party has discharged its burden, the non-moving party
cannot rest on his pleadings, but rather must come forward with
evidence showing that there is a genuine issue for trial. Id. at
593-94 (citing Celotex, 477 U.S. at 324). This, Zeitoun has not
done. Upon review of the record, the Court concludes that there are

9

West v. Tillman, 496 F.3d 1321 (11th Cir. 2007).
9

no genuine issues of material fact with respect to Zeitoun's Eighth
Amendment claim against Defendant Riedl that prevent the entry of
summary judgment in Riedl's favor. As such, Defendant Riedl's
Motion for Summary Judgment is due to be granted as to Zeitoun's
Eighth Amendment claim against him.
Defendant Riedl also asserts that he is entitled to qualified
immunity. See Motion at 11-12. The Eleventh Circuit has stated:
"Qualified immunity protects ... officers
from liability in [section] 1983 actions as
long 'as their conduct does not violate
clearly
established
statutory
or
constitutional rights of which a reasonable
person would have known.'" Lewis v. City of
West Palm Beach, 561 F.3d 1288, 1291 (11th
Cir. 2009) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396
(1982)). The officer bears the initial burden
to
prove
that
he
acted
within
his
discretionary authority, Lee v. Ferraro, 284
F.3d 1188, 1194 (11th Cir. 2002).... With
discretionary
authority
established,
the
burden shifts to [the plaintiff] to prove that
[the defendant] is not entitled to qualified
immunity. Id.
To determine whether an officer is not
entitled to qualified immunity at summary
judgment, we employ a two-part inquiry. First,
we ask "whether the facts, [t]aken in the
light most favorable to the party asserting
the injury, ... show [that] the officer's
conduct violated a [federal] right." Salvato
v. Miley, 790 F.3d 1286, 1292 (11th Cir. 2015)
(first and third alterations in original)
(quoting Tolan v. Cotton, ––– U.S. –––, 134
S.Ct. 1861, 1865, 188 L.Ed.2d 895 (2014)).
Second, we ask "whether the right in question
was 'clearly established' at the time of the
violation." Id. (quoting Tolan, 134 S.Ct. at
1866). When we perform this analysis, we "may
not resolve genuine disputes of fact in favor
10

of the party seeking summary judgment." Tolan,
134 S.Ct. at 1866. Our function at summary
judgment is to "determine whether there is a
genuine issue for trial," not to weigh the
evidence. Id. (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986)).
Dukes v. Deaton, 852 F.3d 1035, 1041-42 (11th Cir. 2017), petition
for cert. filed, No. 16-1299 (Apr. 26, 2017).
Thus, once a defendant raises the defense, the plaintiff bears
the burden of establishing both that the defendant committed a
federal constitutional violation and that the law governing the
circumstances was already clearly established at the time of the
violation. See Youmans v. Gagnon, 626 F.3d 557, 562 (11th Cir.
2010) (citation omitted). The Court is "free to consider these
elements in either sequence and to decide the case on the basis of
either element that is not demonstrated." Id. It is undisputed that
Defendant Riedl was engaged in discretionary functions during the
events in question. The Court concludes that there are no genuine
issues of material fact as to whether Riedl violated Zeitoun's
federal constitutional rights, and therefore, Riedl is entitled to
qualified immunity. As such, Defendant Riedl's Motion for Summary
Judgment is due to be granted as to his assertion of qualified
immunity.
B. John and Jane Does
Zeitoun names seventeen unknown Defendants: (1) John Doe
officers 1-12; (2) John Doe lieutenants 1 and 2; (3) John Doe

11

dentist; (4) John Doe doctor; and (7) Jane Doe officer. The Court
gave Zeitoun an opportunity, through discovery, to identify these
individuals. See Order (Doc. 50). Discovery closed on August 2,
2017.

When

Zeitoun

neither

identified

these

Defendants

nor

requested additional time to do so, the Court directed him, by
September 13, 2017, to show cause why the unnamed Defendants should
not be dismissed from the action. See Order to Show Cause (Doc.
53), filed August 8, 2017. Additionally, the Court advised him that
his failure to show satisfactory cause by the September 13th
deadline may result in the dismissal of the Defendants from the
action.
The September 13, 2017 deadline has passed, and Zeitoun has
neither identified these Defendants, requested additional time to
do so, nor provided the Court with descriptive information that may
assist in identifying them. It is therefore appropriate to dismiss
the unknown Defendants for Zeitoun's lack of prosecution.
Therefore, it is now
ORDERED:
1.

Defendant Riedl's Motion for Summary Judgment (Doc. 51)

is GRANTED, and the Clerk shall enter judgment accordingly.
2.

Defendants John Doe officers 1-12, John Doe lieutenants

1 and 2, John Doe dentist, John Doe doctor, Jane Doe officer are
DISMISSED without prejudice, and the Clerk is directed to terminate
them as Defendants.

12

3.

The Clerk shall enter judgment accordingly, terminate any

pending motions, and close the case.
DONE AND ORDERED at Jacksonville, Florida, this 19th day of
September, 2017.

sc 9/18
c:
Adel Zeitoun
Counsel of Record

13