King v. Kraft et al

Filing 40

ORDER granting in part and denying in part 33 Motion for summary judgment; granting with respect to the battery claim, the battery claim is dismissed from the action; in all other respects, the Motion for Summary Judgment is denied. Signed by Judge Brian J. Davis on 10/14/2016. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
GERALD T. KING,
Plaintiff,
v.

Case No. 3:14-cv-1431-J-39MCR

E. KRAFT,
Defendant.

ORDER
I. Status
Plaintiff Gerald T. King, an inmate of the Florida penal
system, is proceeding in this action on a pro se Second Amended
Civil Rights Complaint (Complaint) (Doc. 14) filed pursuant to 42
U.S.C. § 1983.

He names E. Kraft as the sole Defendant.

The Court

will construe the pro se Complaint liberally. The remaining claims
are: (1) Defendant Kraft, in his individual capacity, "did with a
malicious

and

sadistic

intent,"

use

excessive

force

against

Plaintiff in violation of the Eighth Amendment, and (2) Defendant
Kraft, in his individual capacity, used excessive force against
Plaintiff

constituting

784.03(1)(a), Fla. Stat.1

the

tort

of

battery

pursuant

to

§

As relief, Plaintiff seeks compensatory

and punitive damages and declaratory relief.

1

The Court dismissed the negligence claim on December 18,
2015.
Order (Doc. 24).
Additionally, the Court dismissed
Plaintiff's request for relief that no incarceration liens be
placed against him pursuant to § 960.293, Fla. Stat., and that the
law be deemed inapplicable to him. Order (Doc. 24).

This cause is before the Court on Defendant Kraft's Motion for
Summary Judgment (Defendant's Motion) (Doc. 33).

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 on the matter, and given
an opportunity to respond.
& Order (Doc. 7).

See Summary Judgment Notice (Doc. 34)

Plaintiff filed a Response and Affidavit in

Opposition to Defendant's Motion for Summary Judgment (Response)
(Doc. 35) and an Appendix (Doc. 36).
II. Plaintiff's Allegations
In his verified Complaint,2 Plaintiff alleges that on June 2,
2014, at 7:40 a.m., while housed in cell G-3-104 at Columbia
Correctional Institution, he was using the bathroom.
2.

Complaint at

He partially closed the cell door prior to urinating.

Joseph Cotto, his cell mate, was in the cell.
entered Quad 3 and said "count time."

Id.

Id.

Id.

Defendant Kraft
Plaintiff, after

urinating, reached to re-open the partially closed cell door.

Id.

Defendant Kraft, while conducting the count, paused at Plaintiff's
cell front.

Id.

Kraft, less than two feet directly in front of

2

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

Plaintiff's cell door, had a clear view of Plaintiff's actions
through the well-lighted cell security window.

Id.

Kraft knew

that there were no door handles or gripping devices on the inside
of the cell door.

Id. at 3.

After Kraft observed, through the

cell window, Plaintiff's efforts to re-open the cell door, Kraft
"did with deliberate force pull and secure cell door G-3-104 locked
closed, causing one third (1/3) of the Plaintiff's fifth (pinkie)
finger on the Plaintiff's right hand to be severed by being sliced
off between the swinging cell door and the locking device."

Id.

In response to the trauma, Plaintiff jerked his right hand
back and away from the cell door, gripped his injured finger with
his left hand, and made direct eye contact with Kraft through the
security window.
continued
seconds.
that

with
Id.

Id.
the

Kraft laughed and walked away.
count

procedure

for

approximately

Kraft
twenty

Kraft was not "alerted or informed by the Plaintiff

Plaintiff

had

been

injured[.]"

Id.

Kraft

Plaintiff's cell and said, "What did you do?
bitch ass.

Id.

Do you want to go to medical?"

respond to Kraft's inquiry.

Id. at 4.

Id.

returned

to

I should mace your
Plaintiff did not

Kraft walked away and

requested by radio that Plaintiff's cell door be re-opened.
Kraft exited Quad-3 and returned to the officer's station.

Id.
Id.

On July 15, 2014, Kraft approached Plaintiff's cell, now cell
G-3-206.

Id.

Kraft and another officer conducted a brief search

of the cell and then exited the cell.

3

Id.

Kraft returned to

Plaintiff's cell, and "[i]n pretense of searching behind cell door
G-3-206 the Defendant stated, '[y]our buddy has not fulfilled your
contract.
Plaintiff

I got you.
perceived

this

It should take a pack.'"
statement

to

be

a

"a

Id. at 5.

psychological

threat."
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
4

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).
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,
5

606 (11th Cir. 2016) (per curiam) (citation omitted).

Therefore,

summary judgment would properly be entered in favor of Defendant
Kraft where no genuine issue of material fact exists as to whether
Plaintiff's constitutional rights were violated.
IV. Defendant's Motion
Defendant Kraft contends that he is entitled to summary
judgment.

He first states that the Complaint should be dismissed

because the incident was an "unfortunate accident" and does not
support a claim of excessive force.

Defendant's Motion at 7.

He

also contends that he is entitled to qualified immunity. Id. at 78.

He asserts that Plaintiff's assertion of psychological threat
Id. at

does not rise to the level of a constitutional violation.
8-9.

Finally, Kraft contends that Plaintiff is not entitled to

statutory relief under § 784.03(1)(a), Fla. Stat., because this
statute does not concern a civil tort action, and furthermore, the
Court

lacks

jurisdiction

to

find

Kraft

guilty

misdemeanor crime or impose punishment for such.
V.

of

a

state

Id. at 9.

Plaintiff's Response

Plaintiff, in his Response, urges this Court to find that
there remain genuine issues of material fact in dispute.
at 8.

Response

He first notes that Kraft concedes that Plaintiff did not

suffer a de minimus injury.

Id.

See Defendant's Motion at 5.

Plaintiff claims that the closing of the door by Kraft was done
maliciously or sadistically for the very purpose of causing harm,

6

that is to inflict injury.

Response at 8.

Plaintiff mentions

Kraft's "psychological threat" in his statement of facts, but he
does

not

claim

that

Kraft's

excessive use of force.

verbal

Id. at 12.

threats

amounted

to

the

Finally, Plaintiff counters

Kraft's assertion that he is entitled to qualified immunity by
referencing the genuine dispute as to material facts.

Id. at 12-

13.
VI. Law and Conclusions
A.

Excessive Force

"The Eighth Amendment prohibits the infliction of cruel and
unusual punishment. U.S. Const. amend. VIII.

In considering an

Eighth Amendment excessive force claim, [the Court] must consider
both

a

subjective

and

objective

component:

(1)

whether

the

'officials act[ed] with a sufficiently culpable state of mind,' and
(2) 'if the alleged wrongdoing was objectively harmful enough to
establish a constitutional violation.'" Tate v. Rockford, 497 F.
App'x 921, 923 (11th Cir. 2012) (per curiam) (quoting Hudson v.
McMillian, 503 U.S. 1, 8 (1992)), cert. denied, 133 S.Ct. 1822
(2013).
In both Fourteenth and Eighth Amendment
excessive force claims, whether the use of
force violates an inmate's constitutional
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
7

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).
"Although the extent of the injury is a relevant factor in
determining

the

amount

of

force

applied,

it

is

not

solely

determinative of an Eighth Amendment claim." Muhammad v. Sapp, 494
F. App'x 953, 957 (11th Cir. 2012) (per curiam) (citing Wilkins v.
Gaddy, 559 U.S. 34, 37 (2010)).
When
prison
officials
maliciously
and
sadistically
use
force
to
cause
harm,
contemporary standards of decency always are
violated.
See Whitley, supra, 475 U.S., at
327, 106 S.Ct., at 1088. This is true whether
or
not
significant
injury
is
evident.
Otherwise, the Eighth Amendment would permit
any physical punishment, no matter how
diabolic or inhuman, inflicting less than some
arbitrary quantity of injury. Such a result
would have been as unacceptable to the
drafters of the Eighth Amendment as it is
today.
Hudson, 503 U.S. at 9.
The standard in an excessive use of force case is as follows:
[O]ur core inquiry is "whether force was
applied in a good-faith effort to maintain or
8

restore
discipline,
or
maliciously
and
sadistically to cause harm." Hudson v.
McMillian, 503 U.S. 1, 112 S.Ct. 995, 999, 117
L.Ed.2d 156 (1992). In determining whether
force
was
applied
maliciously
and
sadistically, we look to five factors: "(1)
the extent of injury; (2) the need for
application of force; (3) the relationship
between that need and the amount of force
used; (4) any efforts made to temper the
severity of a forceful response; and (5) the
extent of the threat to the safety of staff
and inmates[, as reasonably perceived by the
responsible officials on the basis of facts
known to them]..." Campbell v. Sikes, 169 F.3d
1353, 1375 (11th Cir. 1999) (quotations
omitted).[3] 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 at 905.
Significantly, Kraft admits that Plaintiff's injury was not de
minimis.

Indeed, this incident resulted in a severed finger that

had to be surgically mended.

And, as noted by Kraft, "this case is

either an unfortunate accident, as is claimed by KRAFT," or a
deliberate

use

of

excessive

Defendant's Motion at 3.

force

as

claimed

by

Plaintiff.

As related by Plaintiff in his statement

of facts, Kraft observed him, through the large cell window,
attempting to open the door without a handle.

Plaintiff alleges

that, despite this observation, Kraft intentionally closed the door

3

See Whitley v. Albers, 475 U.S. 312, 321 (1986).
9

on Plaintiff's hand.

After Plaintiff gripped his injured finger,

Plaintiff states that he made eye contact with Kraft, but Kraft
laughed and walked away.
Although Kraft disputes Plaintiff's assertion that Kraft
observed Plaintiff attempting to close the door through the cell
window, that is a question of fact, a matter for a jury to decide.
Plaintiff, in his verified Complaint, states that Kraft saw him
attempting to close the door, Kraft intentionally shut the door on
Plaintiff's hand in order to inflict injury, and then laughed after
seeing Plaintiff gripping his injured hand and walked away.
The parties have submitted contradictory versions of what
happened on June 2, 2014. There remain disputed issues of material
fact:
"[T]he judge's function is not himself to
weigh the evidence and determine the truth of
the matter but to determine whether there is a
genuine issue for trial." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct.
2505, 2511, 91 L.Ed.2d 202 (1986). A genuine
factual issue is one that "properly can be
resolved only by a finder of fact because [it]
may reasonably be resolved in favor of either
party." Id. at 250, 106 S.Ct. at 2511.
Smith v. LePage, Case No. 15-11632, 2016 WL 4473223, at *3 (11th
Cir. Aug. 25, 2016). Accordingly, Defendant Kraft's Motion will be
denied with respect to Plaintiff's Eighth Amendment excessive use
of force claim because there are genuine issues of material fact
that prevent the entry of summary judgment.

10

B.

Qualified Immunity

Defendant Kraft asserts that he is entitled to qualified
immunity from monetary damages in his individual capacity with
regard to the excessive force claim.

Defendant's Motion at 7-8.

The Eleventh Circuit recently set forth the appropriate inquiry in
this regard:
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).
Smith v. LePage, 2016 WL 4473223, at *3.
It is undisputed that Kraft was engaged in discretionary
functions during the events at issue.

Given the undersigned's

conclusion that summary judgment should be denied as to the Eighth
Amendment excessive use of force claim, and based on the state of
11

the law on qualified immunity in the Eleventh Circuit, qualified
immunity should be denied as to Defendant Kraft.
C.

Psychological Threats

Defendant Kraft apparently construes Plaintiff's Complaint as
attempting to raise a separate claim of a psychological verbal
threats.

The Court previously determined that Plaintiff did not

raise a separate claim of verbal threats.
Instead,

Plaintiff

Plaintiff's

references

contention

that

Kraft's

Kraft

Order (Doc. 24) at 3.
statements

was

acting

to

support

maliciously

or

sadistically on June 2, 2014 when he closed the door on Plaintiff's
hand.

Response at 12.

Therefore, the Defendant's Motion will not

be granted on this basis.
D.

Tort of Battery

Although not a model of clarity, Plaintiff apparently contends
that Kraft's alleged action of intentionally shutting Plaintiff's
hand in the door constituted a battery pursuant to § 784.03(1)(a),
Fla. Stat.
Florida
battery.
the

Complaint at 5.

Statutes

addresses

Upon review, Chapter 784.03 of the
the

crimes

of

battery

and

felony

Specifically, § 784.03(1)(a), Fla. Stat., provides that

offense

of

battery

occurs

when

a

person

actually

and

intentionally touches or strikes another person against the will of
the other; or intentionally causes bodily harm to another person.
Furthermore, the statute provides that the offense of battery is a

12

misdemeanor of the first degree, unless the requirements for felony
battery are met under § 784(2), Fla. Stat.
Defendant Kraft asserts that Plaintiff is not entitled to
statutory relief under § 784.03(1)(a), Fla. Stat.

Upon review,

Defendant's Motion is due to be granted with respect to Plaintiff's
claim of battery under Chapter 784.03(1)(a).

As noted by Kraft,

this statute does not concern civil tort actions; moreover, this
Court

lacks

jurisdiction

to

find

Kraft

guilty

of

a

Florida

misdemeanor offense of battery. Thus, Defendants' Motion asserting
that

Plaintiff

is

not

entitled

to

statutory

relief

under

§

784.03(1)(a) is due to be granted.
Therefore, it is now
ORDERED:
Defendant Kraft's Motion for Summary Judgment (Doc. 33) is
GRANTED with respect to Plaintiff's claim of battery under §
784.03(1)(a), Fla. Stat., and that claim is dismissed from the
action.

In all other respects, Defendant Kraft's Motion for

Summary Judgment (Doc. 33) is DENIED.
DONE AND ORDERED at Jacksonville, Florida, this 14th day of
October, 2016.

sa 10/13
c:
Gerald T. King
Counsel of Record
13