Wright v. Crews et al
Filing
63
ORDER granting 57 Motion for summary judgment, with instructions to the Clerk; directing the Clerk to terminate 61 Motion for summary judgment; directing the Clerk to close the case. Signed by Judge Brian J. Davis on 10/21/2016. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
KENNEDY WRIGHT,
Plaintiff,
v.
Case No. 3:14-cv-479-J-39JBT
OFFICER MORRELL, et al.,
Defendants.
ORDER
I. Status
Plaintiff Kennedy Wright, an inmate of the Florida penal
system, is proceeding in this action on a pro se Amended Civil
Rights Complaint (Complaint) (Doc. 26) filed pursuant to 42 U.S.C.
§ 1983.
White.
The remaining Defendants are Officer Morrell and Sgt.
The Court will construe the pro se Complaint liberally.
The remaining claim is Defendants Morrell and White failed to
intervene when Sergeant Salisbury used excessive force against
Plaintiff.1
As relief, Plaintiff seeks monetary damages.
This cause is before the Court on Defendants' Motion for
Summary Judgment (Defendants' Motion) (Doc. 57).
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
1
In the Complaint, Plaintiff claims he was denied medical
treatment by unnamed medical staff. Of import, Defendants Morrell
and White are not medical staff of the Florida Department of
Corrections. Complaint at 6.
which may foreclose subsequent litigation on the matter, and given
an opportunity to respond.
& Order (Doc. 7).
See Summary Judgment Notice (Doc. 58)
Plaintiff filed a Declaration in Support of
Plaintiff's Motion for Partial Summary Judgment (Response) (Doc.
61), with attached exhibits, which the Court will construe as
Plaintiff's response and declaration.
The Court notes that it
denied Plaintiff's Motion to Proceed to Summary Judgment (Doc. 34)
on December 29, 2015.
See Order (Doc. 37), filed December 30,
2015.
II. Plaintiff's Allegations Against Morrell and White
In his verified Complaint,1 Plaintiff alleges that on March 9,
2014, while confined at Columbia Correctional Institution Annex, he
was assaulted by Sergeant Salisbury.
Complaint at 5.
Plaintiff
states that Defendant Morrell was standing in front of the chow
hall; witnessed this use of force; failed to intervene or protect
Plaintiff,
a
handicapped
person;
and
laughed
at
Plaintiff's
predicament. Id. Plaintiff alleges that Defendant White, on March
9, 2014, was standing outside in front of the chow hall, and
witnessed Sergeant Salisbury use excessive force on Plaintiff and
failed to intervene or protect Plaintiff, a handicapped person.
1
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
Id. at 6.
Plaintiff complains that he suffered a back injury as a
result of the force used by Salisbury.
Id.
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
3
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).
Of import, at the summary judgment stage, the Court assumes
all the facts in the light most favorable to the non-moving party,
in this instance, the Plaintiff, and draws all inferences in the
Plaintiff's favor.
McKinney v. Sheriff, 520 F. App'x 903, 905
(11th Cir. 2013) (per curiam).
"Summary Judgment is appropriate
only when, under the plaintiff'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) (citation omitted).
Therefore,
summary judgment would properly be entered in favor of Defendants
4
Morrell and White where no genuine issue of material fact exists as
to whether Plaintiff's constitutional rights were violated.
IV. Defendants' Motion
Defendants contend that they are entitled to summary judgment.
Defendants' Motion at 9-12.
They also contend that they are
entitled to qualified immunity.
Id. at 12-13.
Finally, they
submit that Plaintiff has no evidence of physical injury and cannot
sustain a claim for compensatory or punitive damages.
Id. at 13-
15.
V.
Plaintiff's Response
Plaintiff, in his Response, urges this Court to find that
there remain genuine issues of material fact in dispute.
at
1.
Plaintiff
attaches
the
March
11,
2014,
Response
Affidavit
of
Guillermo Cardona, the March 15, 2014, Affidavit of Donald F.
Knuckles, administrative documents concerning the incident, and the
March 14, 2014 Response from medical.
VI. Law and Conclusions
A.
Plaintiff
raises
an
Eighth Amendment
Eighth
Amendment
claim,
and
this
particular Amendment prohibits the infliction of cruel and unusual
punishment.
U.S. Const. amend. VIII.
To prove a prison official
violated the Cruel and Unusual Punishments Clause, there has to be
a showing that the prison official had a "sufficiently culpable
state of mind."
Farmer v. Brennan, 511 U.S. 825, 834 (1994)
5
(citation omitted).
In prison condition cases, the culpable state
of mind is "deliberate indifference" to the health or safety of the
inmate.
Id. (citations omitted).
The seminal Supreme Court case
on deliberate indifference to a prisoner's safety is Farmer.
In
Farmer, the Supreme Court recognized that "[a] prison official's
'deliberate indifference' to a substantial risk of serious harm to
an inmate violates the Eighth Amendment."
Id. at 828-29 (citing
Helling v. McKinney, 509 U.S. 25 (1993); Wilson v. Seiter, 501 U.S.
294 (1991); Estelle v. Gamble, 429 U.S. 97 (1976)).
Plaintiff
claims
Defendants
Morrell
and
White
intervene or protect him from Sergeant Salisbury.
failed
to
Suits against
prison officials for failure to protect must satisfy a subjective
requirement.
Farmer, 511 U.S. at 837-38.
Specifically, the Court
held:
[A] prison official cannot be found liable
under the Eighth Amendment for denying an
inmate humane conditions of confinement unless
the official knows of and disregards an
excessive risk to inmate health or safety; the
official must both be aware of facts from
which the inference could be drawn that a
substantial risk of serious harm exists, and
he must also draw the inference. . . .
The
Eighth Amendment does not outlaw cruel and
unusual "conditions"; it outlaws cruel and
unusual "punishments.". . . But an official's
failure to alleviate a significant risk that
he should have perceived but did not, while no
cause for commendation, cannot under our cases
be condemned as the infliction of punishment.
Id.
6
A correctional officer is directly liable under 42 U.S.C. §
1983 if he fails or refuses to intervene during an unprovoked
beating if the officer is "in a position to intervene."
Ensley v.
Soper, 142 F.3d 1402, 1407 (11th Cir. 1998) (internal citation and
quotation omitted).
In a correctional setting, the officer must
"take reasonable steps to protect the victim" if he is in a
position to intervene.
Ledlow v. Givens, 500 F. App'x 910, 914
(11th Cir. Dec. 12, 2012) (per curiam) (citation omitted), cert.
denied, 133 S.Ct. 2802 (2013).
A civil rights plaintiff must include facts showing the
officer has the ability to stop another officer's use of excessive
force.
Grimes v. Yoos, 298 F. App'x 916, 921 (11th Cir. 2008) (per
curiam) (citing Priester v. City of Riviera Beach, Fla., 208 F.3d
919, 924-25 (11th Cir. 2000)). Not only must the plaintiff include
these facts, the plaintiff must include facts showing the "real
opportunity" for the officers to intervene in the alleged unlawful
conduct.
See Keating v. City of Miami, 598 F.3d 753, 764 (11th
Cir. 2010) (citation omitted). Also, the plaintiff "has the burden
to demonstrate that the defendant was in a position to intervene
but failed to do so."
Ledlow v. Givens, 500 F. App'x at 914.
Therefore, Plaintiff must show that Defendants Morrell and
White
had
a
real
opportunity
to
intervene,
the
ability
to
intervene, and were in a position to actually intervene, but failed
to do so.
7
B.
Failure to Intervene
The Court first looks to the excerpts of the Deposition of
Plaintiff,2 provided in support of Defendants' Motion.
59-1).3
Ex. A (Doc.
Plaintiff testified he was in the chow hall and Sergeant
Salisbury urged him to hurry up, using racist and disparaging
remarks.
Id. at 3.
Plaintiff realized the officers were in a
hurry to go to count, so he ate a little bit of his food, dumped
his tray, and went out of the door.
Id.
the
another
door,
Sergeant
Salisbury
made
As he was going out of
disparaging
racist
remark, called Plaintiff a cripple, and urged him to hurry up. Id.
Plaintiff exited through the west side of the chow hall.
Sergeant Salisbury held the door open.
Id. at 4.
Id.
Plaintiff saw
Sergeant White and Officer Morrell, and they were standing on the
inside of the fence.
exit door.
Id.
They were about three feet away from the
Id. at 5.
Plaintiff exited the chow hall and was on the sidewalk heading
to his dormitory. Id. Plaintiff stopped, turned around, and faced
Sergeant White.
Id. at 6.
Plaintiff asked Defendant White why he
2
In the future, the Attorney General's Office must provide
the Court with complete copies of depositions submitted for the
Court's review, not excerpts. In this instance, the Court will
undertake its review; however, in the future, the Attorney
General's Office should ensure that complete copies of depositions
are submitted in support of defense motions, not excerpts of
depositions.
3
The Court hereinafter refers to the Defendants' Exhibits
(Docs. 57 & 59) as "Ex."
8
was allowing his officer to "disrespect" Plaintiff. Id. Plaintiff
was facing Defendant White and making this inquiry when Sergeant
Salisbury let the door slam and left the door.
Id. at 6, 10.
"So
he rushed up on me, struck me with a closed fist and called me a
nigger and stood over me."
Id. at 6 (emphasis added).
This
occurred while other inmates were attempting to exit the chow hall.
Id.
The officers told the inmates to go back in.
Id.
Sergeant
White told inmate Cordona [sic], who tried to help Plaintiff stand
Id. at 6-7.
up, to move on.
Plaintiff sat on the ground, and
Officer Morrell came and helped him up.
Id. at 7.
Morrell "came
and helped me and told me, man, go on to medical, get yourself
checked out."
Plaintiff proceeded to medical.
Id.
Id.
Plaintiff attested that he was using his cane and his balance
is really messed up.
Id.
He complained that Salisbury put him in
"a remission state when he knocked me down on that concrete on my
butt."
Id. at 8.
Plaintiff went to medical and two male nurses
did a visual examination of him and determined that there was
nothing wrong.
back pain.
next day.
Id.
Id. at 9.
Plaintiff said he landed on his butt and had
He went back to medical for a follow-up the
Id. at 9, 11.
He said when he arrived at medical, the
medical staff told him he had been seen and to get out of there.
Id. at 11.
9
Defendants submit the Declaration of Defendant Patrick White
in support of their Motion.
Ex. B.
He states the following under
penalty of perjury:
On March 9, 2014, I was assigned as Tdormitory Housing Supervisor. At about 5:55
p.m., we were feeding the inmates dinner. At
that time, I was standing outside the chow
hall at Gate 2/3, which separates the chow
hall from the receiving area. I heard a noise
behind me and turned around to see inmate
Kennedy Wright, DC # 232617 on the ground.
Sergeant Salisbury was standing next to him
with his hands out trying to help Wright up.
I did not see how Wright ended up on the
ground, as I was facing the opposite direction
and only turned when he was on the sidewalk.
I then saw Wright decline help from Sergeant
Salisbury, but he did accept help from Officer
Morrell, who assisted him to his feet.
At
this time, two years later, I cannot remember
if Wright asked me to go to medical, but I do
remember that after Wright got up he walked
away unassisted toward[s] center gate.
I have read the Amended Complaint in this
case and am aware of the allegations against
me. Wright claims that I witnessed Sergeant
Salisbury use excessive force on him for no
reason and that I failed to intervene and
protect him.
This is not true.
As stated
above, I did not see anyone use any force on
inmate Wright, and only turned around once
Wright fell to the ground. I do not know how
he got there. I also never heard anyone laugh
at Wright or say anything inappropriate.
Id.
Defendants
also
provide
the
Declaration
of
Defendant
Christopher Morrell. Ex. C. He states the following under penalty
of perjury:
10
On March 9, 2014, I was running the last
few inmates out of the Westside chow hall
after the evening meal. I opened the door and
heard a commotion behind me outside. I turned
around and saw Sergeant Salisbury standing
over top of inmate Kennedy Wright, as if he
was trying to help him off the ground. Inmate
Wright
was
refusing
to
allow
Sergeant
Salisbury to help him, so I walked over and
helped Wright up. While this was going on,
Sergeant White was over by the gate, letting
inmates go back to the dorms after chow.
I have read the Amended Complaint in this
case and am aware of the allegations against
me. Wright claims that I witnessed Sergeant
Salisbury use excessive force on him for no
reason and that I failed to intervene and
protect him.
This is not true.
As stated
above, I did not see anyone use any force on
inmate Wright, and when I came outside Wright
was on the ground. I do not know how he got
there.
I also never laughed at Wright or
heard anyone say anything inappropriate.
Id.
The Defendants submitted the Declaration of Albert Carl Maier,
M.D., J.D. Ex. D. It addresses Plaintiff's claim that he suffered
a back injury and was denied medical attention following the
incident.
Id. at 1.
Dr. Maier states that on March 9, 2014,
Plaintiff was seen in medical.
Id.
Not only was he ambulatory
with normal vital signs, he had no objective signs of injury and
made no complaints. Id. The medical staff identified no injuries.
Id.
The medical staff advised Plaintiff to report to sick call if
he experienced any problems.
Id.
The next day, March 10, 2014,
Plaintiff complained of back pain. Id. Upon reporting to medical,
the
nursing
staff
noted
no
swelling
11
or
bruising,
and
found
Plaintiff to have a normal gait although he presented a subjective
complaint of pain.
Id.
When Plaintiff was seen by medical on May
29, 2014 and June 2, 2014, he voiced no complaints about back pain
or
a
back
injury.
Id.
Through
2015,
complaints about back pain or a back injury.
Plaintiff
voiced
no
Id.
Dr. Maier noted that Plaintiff made no assertions of back
trauma prior to March 9, 2014; however, Plaintiff has a history of
hepatitis C, HIV, and a motor vehicle accident with partial
paralysis.
cause
Id.
He further noted that both hepatitis and HIV may
fleeting
Additionally,
Dr.
migratory
Maier
myofacial
pointed
out
pain.
that
Id.
Plaintiff
at
1-2.
"has
an
established foot drop with bilateral ankle instability requiring
corrective orthotics, which could contribute to an asymmetric
distribution of axial forces across the lumbosacral area, causing
lower back pain."
Id. at 2.
In conclusion, Dr. Maier could find
"no demonstrable objective evidence of any injury" from the fall on
March 9, 2014, and found only one subjective report of injury or
pain on March 10, 2014.
Id.
Defendants also rely on Plaintiff's institutional medical
records to support their position.
Ex. E.
The Emergency Room
Record for March 9, 2014, shows that Plaintiff was seen and his
vital signs were taken.
Id.
Plaintiff was ambulatory, alert, and
responded to questions.
Id.
The nurse found no sign of distress
and noted no injuries.
Id.
The physician was not notified and no
12
treatment was provided.
Id.
Plaintiff was advised to access
medical through sick call if he had any symptoms.
was discharged to population.
injuries noted.
Id.
Id.
Plaintiff
The Diagram of Injury shows no
Id.
When Plaintiff reported back pain the next day, a Back Pain
Protocol was completed at sick call, dated March 10, 2014.
Id.
Plaintiff described the pain as an aching pain that increases with
all activities.
Id.
When asked for a position of comfort, he
responded lying still.
Id.
The nurse found Plaintiff's gait
normal and, upon examination, she found no swelling, discoloration
or bruising.
Id.
Finally, Plaintiff made no medical complaints
when he was seen on March 24, 2014 for the Pre-Special Housing
Health Evaluation.
Id.
Defendants also provided the Court with the Sworn Interview of
Inmate Guillermo Cardona, DC# 333640[,] IG Investigation Number 142938, dated April 8, 2014.
Ex. F.
Inmate Cardona states that when
he came out of the chow hall, he saw Plaintiff on the floor, on his
butt with his knees up and his cane beside him.
Id. at 3.
There
was a sergeant or officer in front of him, with his hand out trying
to help him up.
assistance.
Id.
Id.
Plaintiff refused the corrections officer's
Plaintiff said he wanted to see medical, the
officer responded that he was okay, and Plaintiff reiterated that
he wanted to see medical.
Id.
Believing it to be a pride issue on
Plaintiff's part when he rejected assistance in standing up,
13
Cardona asked if Plaintiff wanted his help.
Id.
Plaintiff
responded, no. Id. After Plaintiff rejected Cardona's assistance,
an officer told Cardona to go ahead and leave.
Id. at 4.
Upon inquiry, Cardona stated Plaintiff was already on the
ground when Cardona came out of the chow hall.
Id.
Cardona also
stated that he did not hear anybody say anything improper to
Plaintiff in the chow hall.
Id.
Cardona said that he did not know
how Plaintiff fell on the ground, but he explained that Plaintiff
is impaired and walks "like something's wrong with his legs[.]"
Id.
Cardona explained that he uses a cane, and at that time, he
was pushing inmate Benedetto, an inmate in a wheelchair.
Id.
Defendants submitted the Sworn Interview of Inmate Anthony
Benedetto, DC# 683672[,] IG Investigation Number 14-2938, dated
April 5, 2014, to the Court.
Ex. G.
Inmate Benedetto described
the incident as follows:
I was out, going outside the exit door of the
chow hall on the west side, and as the door
was opened up, I seen Kennedy walking forward
with his cane, and, like if he missteped [sic]
and went down to the ground, and, uh, he fell
on his hands. And, uh, Officer Salisbury, uh,
tried to help him and he accused Officer
Salisbury for pushing him down.
And then
Officer Salisbury says, "Come on now, stop it
Kennedy, come on, grasshopper, let me help you
up." He said no. Then Officer Morrell came
to try and help him up and, uh, Officer
Morrell says, "Let me help you up." He goes,
"No, I don't want nobody to help me up." And
he tried getting up himself. Meanwhile we're
by the, uh, exit of the door, they tried
closing the door on us after that happened. I
seen Officer White there and a few other
14
officers too, but, uh, he, uh, wanted to get
up himself, and then he's saying, "You're not
going to take me to medical? You're not going
to take me to medical?" And he says "You seen
what he did to me," and, uh, evidently I think
he tripped himself because us, he was just
denied his, us, motion from the supreme court
on certiorari, and uh, he said "If I can't be
released now," he had seven more years of
this, "If I can't get released on this habeas
corpus, I'm going to make them pay."
And
that's was [sic] his words.
Id. at 3-4.
When asked if he saw Plaintiff trip over his own feet.
Benedetto responded affirmatively and said that Plaintiff's cane
went down as he went down.
Id. at 4.
Benedetto said the officer
was maybe two feet away from Plaintiff, and he tied to grab
Plaintiff, but Plaintiff went down on his hands.
Id.
Benedetto
said Sergeant Salisbury did not say anything inappropriate but did
offer to help Plaintiff up.
Id.
Benedetto stated that Plaintiff
rejected Salisbury's help, referencing Salisbury's dislike of black
people.
To
counter
Defendants'
verified Complaint.
Motion,
Plaintiff
relies
on
his
He also provides his Declaration (Doc. 61),
Cardona's March 11, 2014, Affidavit (Doc. 61-1), and Donald F.
Knuckles' March 15, 2014, Affidavit.
Id.
Cardona's Affidavit
describes the March 9, 2014 incident as follows.
Cardona was
leaving the west side of the chow hall, when he saw Plaintiff
falling backwards and landing on his butt.
(Doc. 61-1 at 1).
Cardona was walking towards the east chow hall.
15
Id.
Sergeant
Salisbury was standing in front of Wright, with his back to
Cardona. Id. Four or five other officers were standing there, but
they
were
Salisbury
behind
and
Cardona
as
Plaintiff.
Cardona
Id.
walked
Everyone
towards
was
Sergeant
laughing.
Id.
Plaintiff was upset and said he had been shoved down and his cane
was kicked out from beneath him.
Id.
Plaintiff told the officers
that were behind Cardona that he needed to see medical.
said he did not.
told to leave.
Id.
Id.
Id.
They
Cardona went to help Plaintiff up but was
Cardona left.
Id.
Knuckles' Affidavit described two administrative grievances he
wrote against Sergeant Salisbury for making disparaging statements
about handicapped inmates.
(Doc. 61-1 at 2).
Knuckles described
Salisbury as hating invalids, and especially black invalids.
Assuming
Plaintiff
did
not
suffer
a
de
minimis
Id.
injury,
assuming all facts in the light most favorable to Plaintiff, and
drawing all inferences in the Plaintiff's favor, Plaintiff's own
deposition testimony demonstrates that the Defendants had no real
opportunity to intervene, they were unable to intervene, and were
not in a position to actually intervene. Plaintiff states that the
Defendants were three-feet away from the exit door when the
incident occurred.
Plaintiff attests that he was speaking to
Defendant White about Salisbury's disrespectful attitude towards
him.
At this point, Salisbury abruptly slammed the exit door,
rushed over to Plaintiff, and struck Plaintiff once with a closed
16
fist.
With this strike, Plaintiff claims Salisbury knocked him
down.
Plaintiff
has
failed
to
present
facts
showing
the
opportunity for officers Morrell and White to intervene.
real
Also,
Plaintiff has failed to show they were in a position to intervene.
Of
note,
Cardona's
Affidavit
also
does
not
demonstrate
that
Defendants Morrell and White were in a position to intervene.
Instead, Cardona describes the officers he observed as being behind
him as he was walking towards Sergeant Salisbury and Plaintiff.
Plaintiff did not place Morrell and White on notice of an
impending attack by Salisbury.
to
Defendant
White
about
Instead, Plaintiff was complaining
Salisbury's
immediately prior to the attack.
disrespectful
attitude
The duration of the attack was
not long enough for Morrell and White to be in a position to
intervene.
This was not a prolonged beating.
Instead, it was a
sudden, very brief assault: one strike with a closed fist.
Thus,
the Defendants did not have the ability to prevent the lone strike
that hit Plaintiff.
"The known risk of injury must be a strong
likelihood, rather than a mere possibility before a guard's failure
to act can constitute deliberate indifference."
376 F. App'x 894, 896 (11th Cir.
Terry v. Bailey,
2010) (quoting Brown v. Hughes,
894 F.2d 1533, 1537 (11th Cir. 1990) (citations and quotations
omitted).
17
Here, there was no known risk of injury.
Plaintiff has not
presented any facts suggesting that Defendants Morrell and White
had some subjective knowledge of an impending attack by Salisbury.
At most, Plaintiff has put forth evidence that Salisbury previously
made disparaging remarks about blacks and/or the disabled.4
This
type of verbal abuse does not constitute evidence of an impending
attack.
Moreover, subjection to verbal abuse and humiliation
(laughing at someone's misfortune) does not amount to a claim of
federal constitutional dimension.
Plaintiff has the burden to show that Defendants Morrell and
White were in a position to intervene.
Upon review, Plaintiff has
not shown that Defendants Morrell and White "stood idly by while a
fellow officer mistreated" Plaintiff. Ensely v. Soper, 142 F.3d at
1407. Plaintiff has failed to meet his burden and demonstrate that
Morrell and White had a real opportunity to intervene, the ability
to intervene, and were in a position to actually intervene, but
failed to do so.
There is no evidence before the Court showing
that Morrell and White had an opportunity to halt any excessive
force under these circumstances.
In light of the above, the Court concludes that Defendants
Morrell and White are entitled to summary judgment as there is no
evidence from which a reasonable jury could find that Defendants
4
Plaintiff has not provided evidence that these Defendants
actually heard these disparaging remarks being made by Sergeant
Salisbury.
18
Morrell and White had a real opportunity to intervene and the
ability and position to intervene, but failed to do so.
B.
Qualified Immunity
Defendants assert that they are entitled to qualified immunity
from monetary damages in their individual capacities with regard to
the failure to intervene claim.
Defendants' Motion at 12-13.
Recently, the Eleventh Circuit, in Smith v. LePage, Case No. 1511632, 2016 WL 4473223, at *3 (11th Cir. Aug. 25, 2016), set forth
the appropriate inquiry when addressing a claim of entitlement to
qualified immunity:
To determine whether qualified immunity
applies, we conduct a two-step inquiry: (1) do
the facts alleged, construed in the light most
favorable to the plaintiffs, establish that a
constitutional violation occurred; and (2) was
the violated constitutional right clearly
established. Perez, 809 F.3d at 1218. Under
either step, "courts may not resolve genuine
disputes of fact in favor of the party seeking
summary judgment." Tolan v. Cotton, ––– U.S.
––––, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895
(2014). A right may be clearly established by
an existing decision of the Supreme Court,
this Court, or the state's highest court.
Valderrama v. Rousseau, 780 F.3d 1108, 1112
(11th Cir. 2015). For a right to be clearly
established, "there need not be a case on all
fours, with materially identical facts";
rather,
there
can
be
"notable
factual
distinctions" between the precedent and the
case before the court. Holloman ex rel.
Holloman v. Harland, 370 F.3d 1252, 1277 (11th
Cir. 2004) (quotations omitted). Officials
need only have "reasonable warning" that their
conduct violated constitutional rights. Id.
(quotation omitted).
19
It is undisputed that Defendants Morrell and White were
engaged in discretionary functions during the event at issue.
defeat
qualified
immunity
with
respect
to
these
To
Defendants,
Plaintiff must show both that a constitutional violation occurred
and that the constitutional right violated was clearly established.
Fennell v. Gilstrap, 559 F.3d 1212, 1216 (11th Cir. 2009) (per
curiam).
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 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).
In this case, the Court will consider the element of whether
Plaintiff has established that a constitutional violation occurred.
Since the Defendants were acting within the scope of their
discretionary authority when the alleged failure to intervene
occurred, the burden is on Plaintiff to show that the Defendants
are not entitled to qualified immunity.
Skop v. City of Atlanta,
485 F.3d 1130, 1136-37 (11th Cir.), reh'g and reh'g en banc denied,
254 F. App'x 803 (11th Cir. 2007).
Here, a reasonable jury could
not find that the Defendants violated Plaintiff's Eighth Amendment
rights by failing to intervene; therefore, Defendants Morrell and
White are entitled to qualified immunity.
Because Defendants
Morrell and White did not commit an Eighth Amendment violation,
they are entitled to qualified immunity with respect to the failure
20
to intervene claim.
See Hadley v. Gutierrez, 526 F.3d 1324, 1331
(11th Cir. 2008) (citing Priester v. City of Riviera Beach, Fla.,
208 F.3d at 924) (finding the plaintiff failed to present evidence
from which a reasonable jury could find that the defendant could
have stopped the use of force); Ensley v. Soper, 142 F.3d at 1408
(concluding that no reasonable juror could find that the defendant
was in a position to intervene and finding "no evidence that might
lead a reasonable juror to conclude that [the defendant] violated
any
clearly
established
right
of
[the
plaintiff]
to
intervention.").
In sum, Plaintiff did not meet his burden to demonstrate that
Defendants Morrell and White had a real opportunity to intervene
and were in a position to intervene, but failed to do so.
They did
not violate Plaintiff's constitutional rights, as discussed above,
and they therefore are entitled to qualified immunity in their
individual capacities.
See Anderson v. City of Naples,
No. 12-
10917, 2012 WL 6570895, at *4 (11th Cir. Dec. 17, 2012) (per
curiam) (not selected for publication in the Federal Reporter)
(recognizing that qualified immunity protects government officials
engaged in discretionary duties from suits in their individual
capacities unless there is a violation of a constitutional right
and the right was clearly established at the time of the alleged
violation).
Thus, Defendants Morrell and White are entitled to
21
qualified immunity with respect to the Eighth Amendment claim of
failure to intervene.
CONCLUSION
Based on all of the above, Defendants are entitled to summary
judgment, and judgment is due to be entered for Defendants and
against Plaintiff.
For all of the foregoing reasons, it is now
ORDERED:
1.
Defendants' Motion for Summary Judgment (Doc. 57) is
GRANTED, and the Clerk shall enter judgment for Defendants Morrell
and White and against Plaintiff Wright.
2.
The Clerk shall terminate Plaintiff's motion for summary
judgment (Doc. 61) as the Court has construed this document to be
Plaintiff's response and declaration.
3.
The Clerk shall close this case.
DONE AND ORDERED at Jacksonville, Florida, this 21st day of
October, 2016.
sa 10/18
c:
Kennedy Wright
Counsel of Record
22
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