Jenkins v. Tucker et al
Filing
119
ORDER sustaining 115 Defendants' objection to Plaintiff's reliance on Jenkins' affidavit and sworn complaint; overruling 115 Defendants' objection to Plaintiff's reliance on Jenkins' grievance documents; granting 106 Defendants' Motion for summary judgment and dismissing with prejudice Defendants Corbin, Humphrey, Rogers, and Tucker; dismissing Defendant Landrum without prejudice under 28 U.S.C. § 1915(e)(2)(B); directing the Clerk to enter judgment accordingly, terminate any pending motions, and close the case. Signed by Judge Brian J. Davis on 7/12/2019. (KLC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
BARBARA WHITTAKER,
Personal Representative and
Administrator of the Estate
of George Michael Jenkins,
Plaintiff,
v.
Case No. 3:14-cv-1503-J-39MCR
KENNETH S. TUCKER, et al.,
Defendants.
______________________________
ORDER
I. Status
Plaintiff Barbara Whittaker, in her capacity as personal
representative of her deceased brother’s estate, is proceeding
with the assistance of court-appointed counsel on a Second Amended
Complaint (Doc. 39; Complaint) under 42 U.S.C. § 1983. In the
Complaint, Plaintiff
alleges Defendants violated
the decedent
George Michael Jenkins’ constitutional right to be free from cruel
and unusual punishment when he was an inmate of the Florida
Department of Corrections (FDOC).1 See Complaint at 9, 13. Before
After Jenkins filed his Second Amended Complaint, he passed away.
On November 20, 2017, the Court granted the personal representative
Barbara Whittaker’s unopposed motion to substitute her as the
proper party. See Order (Doc. 63). As such, the Court will refer
to Ms. Whittaker as “Plaintiff” and will refer to the former inmate
as “Jenkins.”
1
the Court is Defendants Corbin, Humphrey, Rogers, and Tucker’s
Motion
for
Summary
Judgment
(Doc.
106;
Motion).2
Plaintiff’s
counsel responded to the Motion (Doc. 109; Motion Response). As
such, the Motion is ripe for this Court’s review.
Before addressing the merits of the Motion, the Court first
addresses
Defendants’
Objection
to
Plaintiff’s
Reliance
on
Inadmissible Evidence (Doc. 115; Objection). Defendants object to
the Court’s consideration of Jenkins’ affidavit (Doc. 1-1; Jenkins
Aff.) and Jenkins’ prison grievances (Docs. 109-6, 109-7, 109-8),
each of which Plaintiff relies upon to defeat summary judgment.
Objection at 2-3. Citing Rule 56(c), Defendants argue that because
Jenkins is deceased, the facts contained in his affidavit and
grievances are not capable of being “presented in a form that would
be
admissible
in
evidence.”
See
Fed.
R.
Civ.
P.
56(c)(2).
Defendants contend Jenkins’ affidavit and grievances constitute
inadmissible hearsay and no hearsay exception applies. Objection
at 3-4.
In response, Plaintiff maintains the facts contained in the
documents are capable of being reduced to admissible evidence for
On February 22, 2019, defense counsel filed a notice of suggestion
of death as to the only other remaining Defendant, Chris Landrum
(Doc. 111). As such, defense counsel is no longer able to represent
Defendant Landrum’s interests in this action. See Motion at 1 n.1.
There is no indication defense counsel served the notice of
suggestion of death in compliance with Federal Rule of Civil
Procedure 25(a)(3).
2
2
trial (Doc. 116; Objection Response). Plaintiff asserts the facts
contained in Jenkins’ affidavit are capable of being reduced to
admissible
evidence
under
the
“excited
utterance”
exception.
Objection Response at 3. As to the grievance documents, Plaintiff
asserts the “records” exception to the hearsay rule applies. Id.
A party opposing summary judgment may rely upon affidavits or
sworn pleadings. Fed. R. Civ. P. 56(c)(4). However, such documents
must “set out facts that would be admissible in evidence, and [the
opponent must] show that the affiant or declarant is competent to
testify on the matters stated.” Id. Because Jenkins is unavailable
to testify on the matters stated in his affidavit and grievances,
his out-of-court statements, to the extent offered to “prove the
truth of the matter asserted,” constitute inadmissible hearsay.
See Fed. R. Evid. 801 (defining “hearsay”).
In opposing summary judgment, Plaintiff offers the facts in
Jenkins’ affidavit to demonstrate he was sexually assaulted by
Defendants Corbin, Humphrey, and Rogers when they engaged Jenkins
in a spontaneous use of force on November 11, 2011, at Suwannee
Correctional Institution (SCI). See Motion Response at 13. In his
affidavit, which Jenkins filed in support of his original, sworn
complaint
(Doc.
1;
Original
Complaint),
Jenkins
avers
following:
I was removed from my prison infirmary cell,
stripped of all clothing and upon being placed
back in my infirmary cell [I] was manhandled
3
the
and placed face down[.] [I] saw [Defendant]
Humphrey with what appeared to be a broken
broomstick. I was choked and had an object
placed over my head, [I] was sexually
assaulted and the object that was shoved up my
rectum caused an immediate – pre mature [sic]
movement of the bowels.
Jenkins Aff. at 2; see also Original Complaint at 4.
To overcome summary judgment, Plaintiff offers no evidence of
the alleged sexual assault other than the allegations contained in
Jenkins’ affidavit and his sworn complaint. See Motion Response.
There were no witnesses to the use of force incident other than
corrections officers, including the named Defendants, and neither
party offers video evidence.3 As such, the affidavit is offered
for the truth of the matter asserted and therefore constitutes
inadmissible hearsay unless a hearsay exception applies under the
Federal Rules of Evidence.
Plaintiff contends the excited utterance exception applies.
See
Objection
Response
at
3
(citing
Fed.
R.
Evid.
803(2)).
Plaintiff testified at her deposition that after Jenkins was
released from prison, she and Jenkins lived together for a couple
of
weeks
(Doc.
109-10;
Plaintiff
Dep.).
Plaintiff
testified
In the use of force report, a reviewing senior officer notes,
“[t]his spontaneous use of force was captured on wing camera.”
Motion Ex. B at 4. In response to the Court’s Order (Doc. 117)
requesting the fixed-wing camera footage, Defendants notified the
Court the fixed-wing footage “no longer exists.” See Notice (Doc.
118).
3
4
Jenkins was upset one day, and he referenced someone having tried
to kill him in prison:
[O]ne morning I heard [Jenkins] very upset, he
was just ranting and raving. . . . And he was
saying – he was reading – he had read
something. And he just said, “These mother
fu***ers. These mother fu***ers they all –
they tried to kill me. These mother fu***ers
in prison tried to kill me.” And so I said to
him, “Sometimes you have to – in order to move
on with your life, you have to forgive and
forget.” And he just really kind of exploded.
“What you mean forgive and forget?” He said,
“These mother fu***ers almost beat me to death
and they run all kind of shit up my ass and
you want me to forgive and forget?” And with
that I just stopped and said, “Okay. I have to
go to work.” And I never asked any questions.
So from that point on if I ever saw him
get upset or anything, saw him upset, I would
just make myself scarce. I would – I wouldn’t
be around because I didn’t want to hear it. I
didn’t ask for any details. I didn’t want to
hear the details.
Plaintiff Dep. at 15-16.4
Under the Rules of Evidence, an excited utterance is “[a]
statement relating to a startling event or condition, made while
the declarant was under the stress of excitement that it caused.”
Fed. R. Evid. 803(2). In determining whether a declarant speaks
while under the stress of the event, the length of time between
the event and the utterance is relevant. See United States v.
Page numbers referenced in this Order are those assigned by the
Court’s electronic docketing system.
4
5
Belfast, 611 F.3d 783, 817 (11th Cir. 2010) (recognizing the
excited
utterance
need
not
be
made
contemporaneously
to
the
startling event but, in the totality of the circumstances, the
declarant must have been speaking while under the stress the event
caused). See also United States v. Carlisle, 173 F. App’x 796, 801
(11th Cir. 2006) (“An out-of-court statement made at least fifteen
minutes after the event it describes is not admissible [as a
hearsay exception] unless the declarant was still in a state of
excitement resulting from the event.”) (quoting United States v.
Cain, 587 F.2d 678, 681 (5th Cir. 1979) (internal quotation marks
omitted; alteration in original)).
Here, the alleged sexual assault occurred on November 11,
2011. Complaint at 3. Taking as true the sexual assault occurred
as Jenkins describes it in his affidavit, the encounter constitutes
a “startling event.” However, Jenkins’ statement to Plaintiff was
made at least three years after the startling event occurred;
according to the FDOC website, Jenkins was released from prison on
February 17, 2015.5 Three years later, Jenkins cannot be said to
have been under the stress of the excitement of the incident. Under
these facts, Jenkins’ statement to Plaintiff, made after his
release from FDOC custody and at least three years after the
See FDOC website, offender network search, available
http://www.dc.state.fl.us/OffenderSearch/InmateInfoMenu.aspx
(last visited July 9, 2019).
5
6
at
“startling event” does not constitute an “excited utterance.”
Accordingly, the Court finds the excited utterance exception is
inapplicable.6
Plaintiff offers no other basis upon which the facts contained
in Jenkins’ affidavit or his sworn complaint may be reduced to
admissible form. As such, the Court sustains Defendants’ Objection
to the extent Jenkins’ affidavit and sworn complaint constitute
inadmissible
hearsay,
the
facts
of
which
Plaintiff
fails
to
demonstrate can “be presented in a form that would be admissible
in
evidence.”
See
Fed.
R.
Civ.
P.
56(c)(2).
In
ruling
on
Defendants’ Motion for Summary Judgment, therefore, the Court will
To the extent Plaintiff suggests she can testify at trial about
the alleged sexual assault, her deposition testimony belies such
a conclusion. Plaintiff testified she did not ask Jenkins any
questions about his outburst because she did not want to know the
details. See Pl. Dep. at 15-16. Jenkins’ statement, as explained
by Plaintiff at her deposition, is exceedingly vague and devoid
of any information upon which a reasonable trier of fact could
conclude Defendants Corbin, Humphrey, and Rogers sexually
assaulted Jenkins on November 11, 2011. “[A] mere scintilla of
evidence in support of the non-moving party’s position is
insufficient to defeat a motion for summary judgment.” Kesinger
ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247
(11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986)). Even more, there is no indication Jenkins
was even referring to the November 11th incident when he made the
statement to Plaintiff. The incident complained of in this case
is not the only instance of excessive force Jenkins claims to
have suffered while in prison. Jenkins filed a separate action in
this Court alleging he was beaten by officers on October 27, 2010,
while housed at a different correctional institution. See Second
Amended Complaint (Doc. 28), Case No. 3:14-cv-1318-J-20MCR.
According
to
Jenkins,
the
2010
beating
resulted
in
hospitalization and left him disabled, resulting in his need for
a wheelchair and a helmet to protect against seizures. Id.
6
7
not consider the allegations in Jenkins’ affidavit or his sworn
complaint. See McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir.
1996) (holding inadmissible hearsay may not be used to defeat
summary judgment if the hearsay evidence “will not be available in
admissible form at trial”).
With respect to the grievance documents (Docs. 109-6, 109-7,
109-8), the Court finds Plaintiff relies upon those not to prove
the truth of the matter asserted but to demonstrate
Jenkins
submitted grievances to the Warden of his correctional facility.
Accordingly, the Court overrules Defendants’ Objection to the
extent they object to the Court’s consideration of the grievance
documents Plaintiff submits in opposition to the Motion for Summary
Judgment.7
II. Summary Judgment Standard
Under Rule 56, “[t]he court shall grant summary judgment 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.” Fed. R. Civ. P. 56(a). The record to be considered on a
motion for summary judgment may include “depositions, documents,
Plaintiff offers the grievance documents in support of her
supervisory claim against Defendant Tucker. She asserts Warden
Landrum received three formal grievances from Jenkins, which were
not “escalated because there was likely minimum oversight from
Defendant Tucker.” Motion Response at 12. Given the Court’s ruling
on Plaintiff’s claims against the subordinate Defendants, Corbin,
Humphrey, and Rogers, as explained in this Order, the grievance
documents are not material to the Court’s analysis.
7
8
electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion
only), admissions, interrogatory answers, or other materials.”
Rule 56(c)(1)(A). An issue is genuine when the evidence is such
that a reasonable jury could return a verdict in favor of the
nonmovant. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996) (quoting Hairston v. Gainesville Sun Publ’g Co.,
9 F.3d 913, 919 (11th Cir. 1993)). “[A] mere scintilla of evidence
in support of the non-moving party’s position is insufficient to
defeat a motion for summary judgment.” Kesinger, 381 F.3d at 1247.
The party seeking summary judgment bears the initial burden
of demonstrating to the court, by reference to the record, that
there are no genuine issues of material fact to be determined at
trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th
Cir. 1991). “When a moving party has discharged its burden, the
non-moving party must then go beyond the pleadings, and by its
own affidavits, or by depositions, answers to interrogatories,
and admissions on file, designate specific facts showing that
there is a genuine issue for trial.” Jeffery v. Sarasota White
Sox,
Inc.,
64
F.3d
590,
593–94
(11th
Cir.
1995)
(internal
citations and quotation marks omitted).
Substantive law determines the materiality of facts, and
“[o]nly disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the entry of
9
summary judgment.” Anderson, 477 U.S. at 248. In determining
whether summary judgment is appropriate, a court “must view all
evidence and make all reasonable inferences in favor of the party
opposing summary judgment.” Haves v. City of Miami, 52 F.3d 918,
921 (11th Cir. 1995) (citing Dibrell Bros. Int’l, S.A. v. Banca
Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994)).
III. Facts & Claims for Relief
Jenkins’ claims arise out of a documented spontaneous use of
force incident that occurred at SCI on November 11, 2011, involving
Defendants Corbin, Humphrey, and Rogers.
incident,
Jenkins
was
housed
in
the
On the date of the
prison
infirmary/medical
isolation area. Complaint at 3; Motion Ex. B at 4. He was on close
management, self-harm observation status and was documented as a
“mental health grade level 2.” Motion Ex. C at 3-4.8
The
use
of
force
incident
under
review
occurred
at
approximately 9:15 a.m. Id. at 4, 7. Earlier that morning, at about
7:10 a.m., according to a nurse’s entry in Jenkins’ “Chronological
Record of Health Care” (medical chart) (Doc. 110-2; Motion Response
Ex. B), Jenkins was angry and banging on his cell windows. After
Jenkins had multiple health issues. He used a wheelchair and wore
a helmet (because of seizures). See Motion Ex. A; Motion Ex. E at
14, 25. In a statement in response to disciplinary charges, Jenkins
described himself as having schizophrenia, bipolar disorder, and
severe personality disorder. Motion Ex. E at 18. Jenkins also
suffered
“acute
brain
damage
causing
severe
seizures,”
hallucinations, and memory loss. Id.
8
10
observing Jenkins at his cell, Nurse Hancock wrote the following
entry in the medical chart: “[Inmate] has hand wrapped up and has
been banging on window off and on for about 50 min[utes]. [He h]as
been
acting
out
[for
two]
evenings
and
was
started
on
a
[management] meal this [morning].9 Affect angry.” Motion Response
Ex. B at 2.
Nurse Bisque, who was on duty at the time of the use of force
incident, made an entry in the medical chart at 2:10 p.m. on
November 11, 2011 (after the incident). Id. at 3. She noted having
been informed that, in the morning, Jenkins was agitated and
banging on his cell window. Nurse Bisque wrote the security officer
counseled Jenkins “cell front,” and Jenkins threatened the officer
and yelled obscenities. Id. After the officer in charge arrived,10
Jenkins was brought to the nurses’ station while Defendant Corbin
was searching his cell pursuant to a 72-hour property restriction
order
imposed
because
of
Jenkins’
recent
disruptive
and
threatening behavior and his property was in disarray. Id.; Motion
Ex. B at 4. When Jenkins was at the nurses’ station, he continued
According to an incident report, Jenkins was “placed on
management meal by the Third Shift on 11-10-11 [the day prior to
the incident] for throwing a tray at an officer.” Motion Ex. B at
13.
9
The security officer and the officer in charge are not identified
by name. Upon review of the record, it appears the “security
officer” references Defendant Corbin, and the “officer in charge”
references either Lieutenant Keith or Captain Stout.
10
11
his
threatening
behavior.
Shift
supervisor
Captain
Stout
was
present, along with Lieutenant Keith. Both Stout and Keith heard
Jenkins state, “If you put me on strip I am going to kill the first
staff member that I get my hands on.” Ex. E at 3, 16.11
The use of force incident occurred after the cell search was
complete and Defendant Corbin was attempting to return Jenkins,
who was in a wheelchair, to his cell. Motion Ex. B at 4. Defendants
Rogers and Humphrey were present, as well as Lieutenant Keith, who
ordered Jenkins to submit to having his shirt removed for a strip
search. Jenkins refused. In his use of force report, Defendant
Corbin explains the following:
I completed my search and removal of property
from [Jenkins’ cell], and was attempting to
place inmate Jenkins back into his cell when
he told[] Sergeant James Rogers, Officer
Michael Humphrey and myself that we were going
to have to “run it to get his clothes and he
wasn’t going on strip.” At that time,
Lieutenant Jason Keith, who was present gave
several verbal orders for inmate Jenkins to
submit to having his shirt removed . . . .
Inmate Jenkins stated “No it ain’t happening”
and inmate Jenkins spun his wheel chair [sic]
around [and] stood up and lunged at me in an
aggressive and agitated manner stating “I’m
gonna f*** you up!” At this time, I side
stepped and placed both hands on the back of
the inmate grasping his shirt and directed the
inmate to the floor in the prone position.
Sergeant Rogers and Officer Humphrey were
present and assisted in controlling Inmate
Jenkins’ extremities. I then repositioned
inmate Jenkins[’] upper torso inside the cell
Jenkins’ threat resulted in a disciplinary charge against him.
Motion Ex. E at 3.
11
12
door, by lifting his upper torso from the
floor and turning him inside the cell, his
lower extremities were already inside the cell
at that point. After inmate Jenkins was inside
the cell, I released my hold, at this time all
force ceased. I secured the cell door and I
removed his restraints utilizing a restraint
chain through the cuff port, without further
incident.
Id. Defendants Rogers and Humphrey each signed the use of force
report, confirming their roles in subduing Jenkins. Id. at 5,8.
Defendant
Rogers
wrote,
“I
placed
both
my
hands
on
inmate
Jenkins[’] shoulder area limiting his movement and preventing any
further
aggressive
movements.
Once
inmate
Jenkins
ceased
his
actions, I released my hold and all force ceased by me.” Id. at 5,
8. Defendant Humphrey
Jenkins[’]
legs,
wrote,
preventing
“I placed both hands on inmate
him
from
kicking
any
staff
and
preventing any further aggressive movements. Once inmate Jenkins
ceased his actions, I released my hold and all force ceased by
me.” Id. at 5, 8.
Nurse Bisque did not witness the use of force. However, she
was called to the cell for a post use of force examination, which
Jenkins refused. Id. at 9. In her post use of force exam report,
Nurse Bisque noted Jenkins was shouting at and threatening staff,
preventing her from physically examining him. She observed a “small
amount of blood and spit on the floor” of Jenkins’ cell, though
Jenkins did not appear to be in distress. Id. Upon her visual
13
observation of Jenkins through the window, Nurse Bisque concluded
there was no need for medical treatment. Id.
Nurse
Bisque
also
recorded
her
impression
of
Jenkins’
condition after the use of force incident in the medical chart:
[Inmate Jenkins] was lying on mattress [and]
floor of cell [and] was hold [sic] his safety
helmet to his face [with] his [left] hand.
Writer observed movement mandibles [sic] in a
biting motion [and] hand was pressing helmet
into his face with force. [Inmate] was in no
acute distress . . . . No apparent injuries to
torso [and] limbs identified. During post use
of force exam [inmate] threatened to kill
staff . . . . [Post use of force exam] refused.
[Inmate] unable to sign [form] due to property
restrictions.
Motion Response Ex. B at 3. Nurse Bisque made another entry in the
medical chart shortly after her cell-front visual exam, stating
Jenkins was “quiet in [his] cell.” Id. at 4. He appeared to be
sleeping. The next day, on November 12th, Jenkins was reported to
be alert and talking to staff appropriately with no complaints.
Id. On November 13th, Jenkins was “resting quietly.”
Id. On
November 14th, Jenkins exhibited some signs of “acute distress”
and
difficulty
talking,
which
appeared
related
to
his
heart
condition. Id. The nurse noted a chest x-ray and EKG would be
ordered after Jenkins was “deemed less of a threat to staff.” Id.
There was no explanation as to the nature of the threat Jenkins
posed at that time. Nurses’ entries for November 16th, 17th, and
14
19th provide no indication of physical injury or distress related
to the November 11th incident. Id. at 5.
In the Complaint, Plaintiff claims Jenkins was subjected to
the excessive use of force in violation of the Eighth Amendment
when he was sexually assaulted. Complaint at 9. Plaintiff names
Defendant Tucker in his role as the Secretary of the FDOC at the
time. Id. at 2-3. Plaintiff alleges Defendant Tucker is liable for
his
“failure
to
train
and/or
supervise
Defendants
Corbin,
Humphrey, and Rogers . . . as well as [his] implementation of
customs and/or policies of abuse towards incarcerated inpatients
at the [SCI].” Id. Plaintiff seeks general, compensatory, and
punitive damages, costs and fees, and any other relief deemed
appropriate. Id. at 14.12
IV. Legal Analysis & Conclusions of Law
A. Claims Against Defendants Corbin, Humphrey, and Rogers:
Qualified Immunity
Defendants
Corbin,
Humphrey,
and
Rogers
(collectively,
“Officers”) assert they are entitled to qualified immunity. Motion
at 12. In response, Plaintiff asserts the Officers “had no lawful
reason for a cell search or a strip search,” and they sexually
The Court previously dismissed Plaintiff’s claim for monetary
damages against Defendant Tucker in his official capacity. See
Order (Doc. 52). As such, only the individual capacity claim
remains. Plaintiff names Defendants Corbin, Humphrey, and Rogers
in their individual and official capacities. See Complaint at 1.
12
15
assaulted Jenkins in retaliation for his filing grievances.13
Motion Response at 13. An officer sued in his individual capacity
“is entitled to qualified immunity for his discretionary actions
unless
he
violated
‘clearly
established
statutory
or
constitutional rights of which a reasonable person would have
known.’” Black v. Wigington, 811 F.3d 1259, 1266 (11th Cir. 2016)
(quoting Case v. Eslinger, 555 F.3d 1317, 1325 (11th Cir. 2009)).
Qualified immunity allows officers to exercise their official
duties without fear of facing personal liability. Alcocer v. Mills,
906 F.3d 944, 951 (11th Cir. 2018). The doctrine protects all but
the plainly incompetent or those who knowingly violate an inmate’s
constitutional rights. Id. Upon asserting a qualified immunity
defense, a defendant bears the initial burden to demonstrate he
was acting in his discretionary authority at the relevant times.
Dukes v. Deaton, 852 F.3d 1035, 1041-42 (11th Cir.), cert. denied,
138 S. Ct. 72 (2017).
It is well understood that prison guards are charged with
maintaining order and protecting inmates and staff. Indeed, Eighth
Amendment jurisprudence permits prison guards leeway to use force
when necessary “to maintain or restore discipline.” Whitley v.
Albers, 475 U.S. 312, 320-21 (1986). In their role of maintaining
order and ensuring safety, prison guards must react to and resolve
Plaintiff does not assert a First Amendment claim against the
Officers. See Complaint.
13
16
prison disturbances or threats of harm. See, e.g., Williams v.
Burton, 943 F.2d 1572, 1575 (11th Cir. 1991) (citing Brown v.
Smith, 813 F.2d 1187, 1188 (11th Cir. 1987)).
Here, the uncontradicted evidence demonstrates Defendants
Corbin, Humphrey, and Rogers were acting within the scope of their
discretionary duties when they used force against Jenkins in an
effort to protect themselves, Jenkins, and others. In the use of
force report, Defendant Corbin states he encountered Jenkins in
the scope of his assigned role as Internal Security Supervisor.
See Motion Ex. B at 4. Defendants Rogers and Humphrey were on duty
in
their
respective
roles
(Humphrey). Id. at 8.
as
Sergeant
In those
roles,
(Rogers)
and
Officer
Defendants Rogers and
Humphrey assisted in restraining Jenkins. Id. at 4, 5, 8. In the
scope of their duties, the Officers completed an incident report,
which
included
their
respective
titles
and
described
their
individual efforts to subdue Jenkins. Id.
While unclear, Plaintiff appears to suggest the Officers
acted outside the scope of their discretionary authority, stating
they “had no lawful reason for a cell search or a strip search and
[were] so grossly untrained and under supervised that they did not
receive authorization to proceed from a superior officer.” Motion
Response
at
13.
Plaintiff
also
claims
the
Officers’
actions
violated relevant state and prison rules because the use of force
was not videotaped; Defendants did not observe the three-minute
17
cooling off period before entering Jenkins’ cell; Defendants did
not obtain permission from a superior officer to enter Jenkins’
cell to conduct a strip search; and a doctor was not present during
the use of force. Id.
Plaintiff
points
to
no
evidence
to
support
these
bald
conclusions, nor does Plaintiff specify which Officer allegedly
acted outside his discretionary authority. See id. On the contrary,
the
evidence
demonstrates
no
rule
violations:
both
the
Correctional Officer Chief, J.C. Stephens, and the Warden, C.
Landrum, signed the incident report, concluding the use of force
was conducted in compliance with the Florida Administrative Code
provision 33-602.210 and with Departmental Rule and Procedure.
Motion Ex. B at 12. Accordingly, the Court is satisfied Defendants
Corbin, Humphrey, and Rogers have met their initial burden to
demonstrate they were acting in the scope of their discretionary
duties when they used force against Jenkins.
Once a court is satisfied the defendant was acting within his
discretionary authority, the burden shifts to the plaintiff to
demonstrate the defendant is not entitled to qualified immunity.
Coley v. Smith, 441 F. App’x 627, 628 (11th Cir. 2011) (citing
Bryant v. Jones, 575 F.3d 1281, 1294 (11th Cir. 2009)). To overcome
the qualified immunity defense, a plaintiff bears the burden to
demonstrate two elements: the defendant’s conduct caused plaintiff
to
suffer
a
constitutional
violation,
18
and
the
constitutional
violation was “clearly established” at the time of the alleged
violation. Id. See also Davila v. Gladden, 777 F.3d 1198, 1210-11
(11th Cir. 2015). Courts may exercise discretion to “conduct the
qualified
immunity
analysis”
in
either
order.
Id.
at
1211.
Exercising its discretion, the Court finds the qualified immunity
analysis begins and ends with the first element because Plaintiff
fails
to
demonstrate
the
Officers’
actions
resulted
in
a
constitutional violation under the Eighth Amendment.
“Because § 1983 ‘requires proof of an affirmative causal
connection between the official’s acts or omissions and the alleged
constitutional deprivation,’ each defendant is entitled to an
independent qualified-immunity analysis as it relates to his or
her actions and omissions.” Alcocer, 906 F.3d at 951 (quoting
Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986) (per
curiam)). As such, the Court will analyze Plaintiff’s excessive
force claim against Defendants Corbin, Humphrey, and Rogers in
consideration of their respective actions during the incident.
The Eighth Amendment’s proscription against cruel and unusual
punishment “prohibits the unnecessary and wanton infliction of
pain,
or
the
infliction
of
pain
totally
without
penological
justification.” Ort v. White, 813 F.2d 318, 321 (11th Cir. 1987).
In
ensuring
inmates
are
not
subject
to
“punishment
grossly
disproportionate to the severity of the offense,” courts must be
19
mindful that they should normally not interfere in matters of
prison administration or inmate discipline. Id. at 322.
In analyzing use
of force incidents through a prism of
deference, courts must balance concerns of an inmate’s right to be
free from cruel and unusual punishment with a prison official’s
obligation to ensure a safe and secure institution. Id. 321-22.
“The Court’s decisions in this area counsel that prison officials
should be accorded wide-ranging deference in the adoption and
execution of policies and practices that in their judgment are
needed to preserve internal order and discipline and to maintain
institutional security.” Id. at 322 (quoting Bell v. Wolfish, 441
U.S. 520, 547 (1979)).
Because of the deference afforded prison officials, an inmate
against whom force is used to restore order or quell a disturbance
demonstrates
official’s
suffering.”
an
Eighth
action
Id.
Amendment
“inflicted
(internal
violation
unnecessary
citations
and
omitted).
only
wanton
when
pain
Indeed,
the
and
“[t]he
Supreme Court has held that . . . any security measure undertaken
to resolve [a] disturbance gives rise to an Eighth Amendment claim
only if the measure taken ‘inflicted unnecessary and wanton pain
and suffering’ caused by force used ‘maliciously and sadistically
for the very purpose of causing harm.’” Williams, 943 F.2d at 1575
(emphasis is original) (quoting Whitley, 475 U.S. at (1986)).
20
The Eleventh Circuit has articulated five factors courts may
consider in determining whether an officer’s use of force was in
good faith or carried out maliciously and sadistically for the
purpose of causing harm:
(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) (quoting
Whitley, 475 U.S. at 321; Hudson v. McMillian, 503 U.S. 1, 7
(1992)). See also Ort, 813 F.2d at 323; Williams, 943 F.2d at 1575.
Here, the Officers do not dispute they used force against
Jenkins, and the record shows there was a need to do so. Not only
did Jenkins make a threatening action toward Defendant Corbin but
he also orally threatened Corbin. Defendant Corbin states in both
the use of force and incident reports that “Jenkins spun his wheel
chair
[sic]
around
and
stood
up
and
lunged
at
[him]
in
an
aggressive and agitated manner stating “I’m gonna f*** you up!”.
Motion Ex. B at 4, 12. Lieutenant Keith, who was present, witnessed
Jenkins’ apparent attempt to physically harm Defendant Corbin. Id.
at 12. In his written report, Lieutenant Keith states Jenkins “made
threats against staff[,] then left his wheel chair [sic] and lunged
towards staff.” Id. And, a nurse’s note in the medical chart,
21
written three days later, states, “informed by security that
patient stood up [and] physically charged [at] an officer on
11/11/11.” Motion Response Ex. B at 5.
The fact that Jenkins was being transported in a wheelchair
at the time of the incident does not mean he posed no harm to
others or to himself. As Plaintiff alleges in the Complaint, at
the time of the incident, there was a dispute regarding whether
Jenkins would be permitted to have his wheelchair inside his cell,
whether it should remain in the vestibule area, or whether a
wheelchair should be assigned to him as needed. Complaint at 4.
Given the dispute about Jenkins’ wheelchair requirements and the
record evidence, it appears Jenkins was capable of standing and
walking without assistance. For instance, a nurse’s entry on
November 17th indicates Jenkins was “mobile.” Motion Response Ex.
B at 5. The post use of force exam hand-held video footage also
shows Jenkins was capable of independent movement; he is seen in
the video moving from a sitting position to a kneeling position
with no difficulty or signs of distress. Motion Ex. C. Moreover,
a disciplinary hearing resulted in a finding of guilt against
Jenkins for attempted battery, based on his action of lunging out
of his wheelchair toward Defendant Corbin. Motion Ex. E at 20.
Jenkins’ threatening action toward Defendant Corbin also must
be considered in the context of his demeanor and conduct preceding
the
incident.
Jenkins
was
described
22
as
“angry”
earlier
that
morning, Motion Response Ex. B at 2, and when Defendant Corbin was
executing the property restriction, Jenkins threatened to kill the
first staff member he could get his hands on, Motion Ex. E at 6.
Jenkins also had been acting out for two days before the incident.
Motion Response Ex. B at 2. Knowing Jenkins was agitated, angry,
and had threatened to physically harm staff, Defendants Corbin,
Humphrey,
and
Rogers
reasonably
reacted
to
Jenkins’
apparent
attempt to carry out his threat. Indeed, in the disciplinary
report, Defendant Corbin wrote, “[i]t became necessary to use
physical force to prevent Inmate Jenkins from assaulting myself or
any other staff.” Motion Ex. E at 19. Under the circumstances faced
by
the
Officers,
the
Court
will
not
second-guess
Defendants
Corbin’s, Humphrey’s, and Rogers’s individual and split-second
reactions to Jenkins’ threatening behavior.
The amount of force Defendants Corbin, Humphrey, and Rogers
used in response to Jenkins’ behavior was minimal. Defendant Corbin
explains he “placed both hands on the back of the inmate grasping
his shirt and directed the inmate to the floor in the prone
position.” Motion Ex. B at 4. Defendants Humphrey and Rogers
assisted by holding Jenkins’ extremities to “prevent[] any further
aggressive movement.” Id. at 8. The Officers all confirm that once
Jenkins was restrained and placed back inside his cell, “all force
ceased.” Id. at 4, 5, 8. There is no evidence the Officers used
any more force against Jenkins than what they describe in their
23
reports.
Other
than
Plaintiff’s
unsupported
statement
that
Defendants sexually assaulted Jenkins, see Motion Response at 13,
there
is
no
evidence
suggesting
or
permitting
a
reasonable
inference that the Officers used unnecessary force for the purpose
of causing Jenkins harm.14
Finally, Jenkins did not sustain any significant injuries
attributable to the Officers’ use of force. Immediately after the
incident, Nurse Bisque visited Jenkins at his cell, along with
Lieutenant Keith, and she noted there was “no need for treatment.”
Motion Ex. B at 9. She recorded only a “small amount of blood and
spit on the floor,” but no apparent distress or physical injury
was observed. Id. at 9, 10. A review of the hand-held video, Motion
Ex. C, shows Nurse Bisque and Lieutenant Keith had a good view of
Jenkins: the front of his cell was all windows providing an
unobstructed view inside, and Jenkins was sitting upright on the
floor directly in front of the windows. The video, as reviewed by
this Court, shows Jenkins sitting upright in no apparent distress
and with no observable physical injuries. Id.
Plaintiff
points
to
no
evidence
demonstrating
Jenkins
sustained serious injuries. See Motion Response at 14. Rather,
Plaintiff
merely
asserts
Jenkins
was
“vulnerable
to
physical
As discussed previously, the Court does not credit the
allegations in Jenkins’ affidavit or sworn complaint in which he
asserts Defendants sexually assaulted him.
14
24
injuries” because of his extensive medical history. Id. at 13.
Plaintiff further states the post use of force examination report
notes “minor injuries.” Id. at 14. However, Plaintiff offers no
evidence to demonstrate the nature and extent of any injuries
Jenkins may have sustained during the use of force. In fact,
according to the nurses’ entries on the medical chart, which
Plaintiff offers as an exhibit, there is no indication that Jenkins
later complained of pain or injury attributable to the incident.
See Motion Response Ex. B at 4-5.
Applying the relevant factors, the evidence, viewed in the
light most favorable to Plaintiff, demonstrates the Officers used
force in good faith and not for the purpose of causing harm: the
extent
of
any
injury
was
minimal;
there
was
a
demonstrated
penological justification for the use of force; the amount of force
used was minimal in relation to the need for the use of force; all
force ceased once Jenkins was returned to his cell; and Jenkins
posed a threat to the Officers and himself when he lunged out of
his wheelchair toward Defendant Corbin. See Campbell, 169 F.3d at
1375.
Plaintiff offers no evidence to suggest or permit a reasonable
inference that the Officers acted maliciously and sadistically for
the purpose of causing harm or used more force than necessary to
subdue Jenkins after he lunged at Defendant Corbin. See Whitley,
475 U.S. at 322 (“Unless it appears that the evidence, viewed in
25
the light most favorable to the plaintiff, will support a reliable
inference of wantonness in the infliction of pain under the
standard we have described, the case should not go to the jury.”).
Plaintiff, therefore, fails to demonstrate the Officers, in their
individual capacities, violated Jenkins’ constitutional rights. As
such, there is no basis for Plaintiff’s claims against the Officers
in their official capacities. See Mann v. Taser Int’l, Inc., 588
F.3d 1291, 1309 (11th Cir. 2009).
Because the Court finds Plaintiff has failed to carry her
burden to demonstrate a constitutional violation, the Court need
not proceed to the next step of the qualified immunity analysis—
determining if a constitutional right was clearly established.
Lumley v. City of Dade City, Fla., 327 F.3d 1186, 1194 (11th Cir.
2003). “If no constitutional right would have been violated were
the allegations established, there is no necessity for further
inquiries concerning qualified immunity.” Case, 555 F.3d at 1327
(quoting Saucier v. Katz, 533 U.S. 194 (2001)). Accordingly,
Defendants Corbin, Humphrey, and Rogers are entitled to qualified
immunity and the claims against them are due to be dismissed.
B. Claims Against Defendant Tucker
Defendants
assert
Plaintiff
fails
to
state
a
claim
for
supervisory liability against Defendant Tucker. Motion at 2, 6. In
the Complaint, Plaintiff alleges Defendant Tucker is liable under
a theory of “supervisory liability/respondeat superior” because he
26
failed to train and/or supervise Defendants Corbin, Humphrey, and
Rogers, and based on a custom or policy of abuse toward inpatients
at SCI. Complaint at 9.
Because
violation,
the
Court
finds
underlying
supervisory
Plaintiff’s
no
liability
constitutional
claim
against
Defendant Tucker necessarily fails. See Mann, 588 F.3d at 1308
(holding
the
plaintiff’s
supervisory
liability
claim
failed
“because the underlying § 1983 claims fail[ed]”) (citing Hicks v.
Moore,
422
F.3d
1246,
1253
(11th
Cir.
2009)).
As
such,
the
supervisory claim against Defendant Tucker is due to be dismissed.
V. Claims Against Defendant Landrum: Sua Sponte Frivolity Review
In his Complaint, Plaintiff also sues Chris Landrum. See
Complaint at 9. After this Court’s ruling on Defendant Landrum’s
motion to dismiss, only the individual liability claim against him
remains. See Order (Doc. 52). Defendant Landrum’s interests are
not represented in the Motion before this Court. Under Federal
Rule of Civil Procedure 25(a)(1), Defendants filed a Notice of
Suggestion of Death of Defendant Landrum on February 22, 2019 (Doc.
111), attaching the certificate of death (Doc. 111-1). See also
Motion at 1. Given Defendant Landrum’s death, defense counsel no
longer represents his interests in this case. See Motion at 1 n.1.
In light of the Court’s ruling that Defendant Landrum’s
subordinates,
Defendants
Corbin,
Humphrey,
and
Rogers,
are
entitled to qualified immunity, the Court exercises its authority
27
under the Prison Litigation Reform Act (PLRA) to
assess the
viability of Plaintiff’s claim against Defendant Landrum. See 28
U.S.C. § 1915(e)(2)(B).15 The PLRA requires the Court to dismiss a
claim
at
any
time
if
the
Court
determines
it
is
frivolous,
malicious, fails to state a claim upon which relief can be granted
or seeks monetary relief against a defendant who is immune from
such relief. Id.
To state a claim under 42 U.S.C. § 1983, a plaintiff must
allege (1) the defendant deprived him of a constitutional right
and (2) such deprivation occurred under color of state law. Salvato
v. Miley, 790 F.3d 1286, 1295 (11th Cir. 2015); Bingham v. Thomas,
654 F.3d 1171, 1175 (11th Cir. 2011). A claim under § 1983 also
requires a plaintiff provide “proof of an affirmative causal
connection between the official’s acts or omissions and the alleged
constitutional deprivation.” Zatler, 802 F.2d at 401.
Plaintiff brings a claim against Defendant Landrum under §
1983 for “supervisory liability,” alleging Defendant Landrum, at
relevant times, was the warden at SCI and in that role, “was
responsible for the maintenance and care at that institution, and
the administration of its policies and procedures.” Complaint at
3, 9. Plaintiff asserts Defendant Landrum “fail[ed] to train and/or
supervise Defendants Rogers, Corbin, and Humphrey . . . [and]
15
Plaintiff is proceeding in forma pauperis. See Order (Doc. 7).
28
implement[ed]
[]
customs
and/or
policies
of
abuse
towards
incarcerated inpatients at the [SCI].” Id. According to Plaintiff,
the subordinate officers, Corbin, Humphrey, and Rogers violated
Jennkins’ constitutional rights during the execution of the cell
search and “the subsequent sexual assault,” and the violation
“demonstrate[s] that they were not properly supervised and/or
trained by their Superior Officers,” including Defendant Landrum.
Id. at 11.
Plaintiff
alleges
the
lack
of
supervision
and
training
provides the causal connection between the alleged constitutional
violation and Defendant Landrum’s role as warden. Id. 11-12.
Plaintiff generally asserts a causal connection in the Complaint,
but states “[f]urther documentation regarding the causal link that
exists between the Superior Officers’ failure to train and/or
supervise their Subordinate Officers and the violation of Mr.
Jenkin’ Rights can be produced during the discovery process.” Id.
at 13. Finally, Plaintiff alleges Defendant Landrum “should have
been aware of the several formal grievances filed by Mr. Jenkins,”
and Landrum’s “refusal to investigate the situation” amounts to
deliberate indifference to Jenkins’ constitutional rights. Id.
Plaintiff
does
not
allege
Defendant
Landrum
personally
participated in the use of force or the alleged sexual assault.
See Complaint.
29
An individual cannot be held liable under § 1983 on the basis
of that person’s supervisory position alone. See Cottone v. Jenne,
326 F.3d 1352, 1360 (11th Cir. 2003) (internal quotation marks and
citation omitted) (“It is well established in this Circuit that
supervisory
officials
unconstitutional
acts
are
of
not
liable
§
1983
for
subordinates
their
under
on
the
basis
the
of
respondeat superior or vicarious liability.”). A supervisor may be
held liable where there is a causal connection between the alleged
constitutional
violation
and
actions
or
inactions
of
the
supervisor.
In the absence of a supervisor’s personal participation in
the alleged conduct, a plaintiff may demonstrate the necessary
causal connection by showing the supervisor knew about and failed
to correct a widespread history of abuse; the supervisor’s custom
or policy resulted in a constitutional violation; or the supervisor
either directed a subordinate to act unlawfully or knew the
subordinate would act unlawfully and failed to prevent the action.
Harrison v. Culliver, 746 F.3d 1288, 1289 (11th Cir. 2014).
Allegations that a supervisor failed to adequately train or
supervise subordinates implicates a slightly different theory of
supervisory liability under § 1983. See, e.g., Keith v. DeKalb
Cty., Ga., 749 F.3d 1034, 1047-48 (11th Cir. 2014). Under the
failure-to-train theory, a supervisor may be held liable “only
where the failure to train amounts to deliberate indifference to
30
the rights of persons with whom the [officers] come into contact.”
Id.
at
1052
(alteration
in
original).
Under
the
deliberate
indifference standard, a plaintiff must demonstrate the supervisor
had “actual or constructive notice that a particular omission in
[a]
training
inmate’s]
program
causes
constitutional
.
.
rights,
.
employees
and
that
to
violate
armed
with
[an
that
knowledge the supervisor chose to retain that training program.”
Id. (quoting Connick v. Thompson, 563 U.S. 51 (2011)).
The linchpin of a supervisory liability claim is an underlying
constitutional violation. Knight through Kerr v. Miami-Dade Cty.,
856 F.3d 795, 821 (11th Cir. 2017) (“There can be no policy-based
liability or supervisory liability when there is no underlying
constitutional violation.”) (citing City of Los Angeles v. Heller,
475 U.S. 796, 799 (1986)). See also Hicks, 422 F.3d at 1253
(holding the plaintiff could not maintain a supervisory liability
action against jail administrators on a failure-to-train theory
because the court found no underlying constitutional violation by
the officers); Gish v. Thomas, 516 F.3d 952, 955 (11th Cir. 2008)
(“Without
an
underlying
violation
of
[the
plaintiff’s]
constitutional rights, [the sheriff] cannot be liable in his
individual or official capacity for a failure to train
[the
officer] and [the county] cannot be liable on the ground that its
policy caused a constitutional violation.”).
31
While Plaintiff’s allegations were facially sufficient to
withstand a motion to dismiss (Doc. 52), Plaintiff’s supervisory
liability claim against Defendant Landrum fails at this juncture
of the proceedings. Upon review of the evidentiary basis for
Plaintiff’s claims, the Court finds Plaintiff fails to demonstrate
a constitutional violation against Defendants Corbin, Humphrey,
and Rogers, which entitles each of them to qualified immunity.
Because
there
was
no
underlying
constitutional
violation,
a
supervisory liability claim against Defendant Landrum necessarily
fails. See Knight, 856 F.3d at 821; Hicks, 422 F.3d at 1253.
Accordingly, under the Court’s discretionary authority granted by
the PLRA, the Court sua sponte dismisses Defendant Landrum from
this action. See § 1915(e)(2)(B).
Therefore, it is now ORDERED:
1.
Defendants’
Inadmissible
Evidence
Objection
(Doc.
115)
to
Plaintiff’s
is
SUSTAINED
Reliance
to
the
on
extent
Jenkins’ affidavit and sworn complaint constitute inadmissible
hearsay, the facts of which Plaintiff fails to demonstrate can “be
presented
in
a
form
that
would
be
admissible
in
evidence.”
Defendants’ Objection (Doc. 115) is OVERRULED to the extent they
object
to
the
Court’s
consideration
documents.
32
of
Jenkins’
grievance
2.
GRANTED.
Defendants’ Motion for Summary Judgment (Doc. 106) is
Defendants
Corbin,
Humphrey,
Rogers,
and
Tucker
are
DISMISSED with prejudice.
3.
Defendant Landrum is DISMISSED without prejudice under
28 U.S.C. § 1915(e)(2)(B).
4.
The
Court
directs
the
Clerk
to
enter
judgment
accordingly, terminate any pending motions, and close the case.
DONE AND ORDERED at Jacksonville, Florida, this 10th day of
July, 2019.
Jax-6
c:
Counsel of Record
33
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