King v. Kraft et al
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
GERALD T. KING,
Case No. 3:14-cv-1431-J-39MCR
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.
will construe the pro se Complaint liberally. The remaining claims
are: (1) Defendant Kraft, in his individual capacity, "did with a
Plaintiff in violation of the Eighth Amendment, and (2) Defendant
Kraft, in his individual capacity, used excessive force against
784.03(1)(a), Fla. Stat.1
As relief, Plaintiff seeks compensatory
and punitive damages and declaratory relief.
The Court dismissed the negligence claim on December 18,
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).
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.
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."
urinating, reached to re-open the partially closed cell door.
Defendant Kraft, while conducting the count, paused at Plaintiff's
Kraft, less than two feet directly in front of
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.").
Plaintiff's cell door, had a clear view of Plaintiff's actions
through the well-lighted cell security window.
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."
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
Kraft laughed and walked away.
Kraft was not "alerted or informed by the Plaintiff
Plaintiff's cell and said, "What did you do?
Do you want to go to medical?"
respond to Kraft's inquiry.
Id. at 4.
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.
On July 15, 2014, Kraft approached Plaintiff's cell, now cell
Kraft and another officer conducted a brief search
of the cell and then exited the cell.
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
I got you.
It should take a pack.'"
Id. at 5.
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
Fed. R. Civ. P. 56(a).
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).
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
affidavit or declaration used to support or
oppose a motion must be made on personal
"[A]ffidavits based, in part, upon information
and belief, rather than personal knowledge,
are insufficient to withstand a motion for
summary judgment." Ellis v. England, 432 F.3d
1321, 1327 (11th Cir. 2005).
As we've emphasized, "[w]hen the moving
party has carried its burden under Rule 56,
its opponent must do more than simply show
that there is some metaphysical doubt as to
the material facts . . .
Where the record
taken as a whole could not lead a rational
trier of fact to find for the non-moving
party, there is no 'genuine issue for trial.'"
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348,
89 L.Ed.2d 538 (1986). "[T]he mere existence
of some alleged factual dispute between the
parties will not defeat an otherwise properly
supported motion for summary judgment; the
requirement is that there be no genuine issue
of material fact." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). Unsupported, conclusory
allegations that a plaintiff suffered a
insufficient to withstand a motion for summary
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
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
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
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).
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
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.
also contends that he is entitled to qualified immunity. Id. at 78.
He asserts that Plaintiff's assertion of psychological threat
does not rise to the level of a constitutional violation.
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
misdemeanor crime or impose punishment for such.
Id. at 9.
Plaintiff, in his Response, urges this Court to find that
there remain genuine issues of material fact in dispute.
He first notes that Kraft concedes that Plaintiff did not
suffer a de minimus injury.
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,
that is to inflict injury.
Response at 8.
Kraft's "psychological threat" in his statement of facts, but he
excessive use of force.
Id. at 12.
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-
VI. Law and Conclusions
"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
'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
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
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
force). If not, then it does not.
Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007) (per
"Although the extent of the injury is a relevant factor in
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)).
contemporary standards of decency always are
See Whitley, supra, 475 U.S., at
327, 106 S.Ct., at 1088. This is true whether
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
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
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
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). However, "[t]he Eighth Amendment's
prohibition of cruel and unusual punishments
recognition de minimis uses of physical force,
provided that the use of force is not of a
sort repugnant to the conscience of mankind."
McKinney v. Sheriff, 520 F. App'x at 905.
Significantly, Kraft admits that Plaintiff's injury was not de
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
Defendant's Motion at 3.
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.
that, despite this observation, Kraft intentionally closed the door
See Whitley v. Albers, 475 U.S. 312, 321 (1986).
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
"[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.
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
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";
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.
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
the law on qualified immunity in the Eleventh Circuit, qualified
immunity should be denied as to Defendant Kraft.
Defendant Kraft apparently construes Plaintiff's Complaint as
attempting to raise a separate claim of a psychological verbal
The Court previously determined that Plaintiff did not
raise a separate claim of verbal threats.
Order (Doc. 24) at 3.
sadistically on June 2, 2014 when he closed the door on Plaintiff's
Response at 12.
Therefore, the Defendant's Motion will not
be granted on this basis.
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),
Complaint at 5.
Upon review, Chapter 784.03 of the
Specifically, § 784.03(1)(a), Fla. Stat., provides that
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
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.
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
misdemeanor offense of battery. Thus, Defendants' Motion asserting
784.03(1)(a) is due to be granted.
Therefore, it is now
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
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
Gerald T. King
Counsel of Record
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