Oliver v. Whitehead et al

Filing 118

ORDER granting 102 Motion for summary judgment with respect to the Eighth Amendment claims against Defendants Espino and Whitehead and with respect to their claim of qualified immunity; judgment to that effect will be withheld pending adjudication of the action as a whole. Signed by Judge Brian J. Davis on 11/7/2017. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
WARREN OLIVER,
Plaintiff,
vs.
Case No. 3:14-cv-1506-J-39JRK
OFFICER WHITEHEAD, et al.,
Defendants.
ORDER
I.

Status

Plaintiff is an inmate confined in the Florida penal system.
He is proceeding pro se on an Amended Complaint (Amended Complaint)
(Doc. 11) pursuant to 42 U.S.C. § 1983.1

He filed his original

Complaint (Doc. 1) on December 8, 2014, pursuant to the mailbox
rule.

This cause is before the Court on Defendant Espino and

Whitehead's Motion for Summary Judgment (Motion) (Doc. 102).2
Plaintiff responded.

Plaintiff's Response to Defendants' Motion

for Summary Judgment (Response) (Doc. 111).
Notice (Doc. 103).

See Order (Doc. 12);

The Court granted Defendants' motion for leave

to file a reply, and Defendants' filed a Reply to Plaintiff's
Opposition to Defendants' Motion for Summary Judgment (Reply) (Doc.

1

In this opinion, the Court references the document and page
numbers designated by the electronic filing system.
2

Defendant Oliveros does not join this Motion.

116).

Plaintiff's

filed

a

response

to

the

Reply,

entitled

Objections to Defendants' Reply (Doc. 117).
II.

Summary Judgment Standard

"Summary judgment is appropriate only 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.'"

Moton v.

Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011) (quoting Fed. R. Civ.
P. 56(a)).

"If the moving party meets this burden, 'the nonmoving

party must present evidence beyond the pleadings showing that a
reasonable jury could find in its favor.'" Ekokotu v. Federal Exp.
Corp., 408 F. App'x 331, 333 (11th Cir.) (per curiam) (quoting
Fickling v. United States, 507 F.3d 1302, 1304 (11th Cir. 2007)),
cert. denied, 565 U.S. 944 (2011).
III.

The Amended Complaint

The alleged facts supporting the Amended Complaint are set
forth

at

pages

8-9.

Plaintiff

claims

Defendant

Espino

was

deliberately indifferent to Plaintiff's serious medical needs, in
violation

of

Plaintiff's

Complaint at 7.

Eighth

Amendment

rights.

Amended

Plaintiff states that after he was sexually and

physically battered on August 5, 2012, he went to medical and saw
Dr. Espino.

Id. at 8.

Plaintiff alleges that Espino laughed at

him; told him to get out of his office; refused to examine him,
even though he knew Plaintiff had injuries; and refused to address
Plaintiff's injuries.

Id.

Plaintiff raises an additional Eighth

2

Amendment claim against Defendant Whitehead.

Plaintiff alleges

that Whitehead told his subordinates to beat inmates, use excessive
force, and to treat inmates cruelly.

Id. at 8.

Plaintiff also

alleges that Defendant Whitehead knew that his subordinates were
using excessive force.
IV.

Id.

Exhaustion of Administrative Remedies

Defendant Espino asserts that Plaintiff failed to properly
avail himself of the grievance process with regard to his claim
alleging deliberate indifference to a serious medical need.
Prison

Litigation

Reform

Act

(PLRA)

requires

exhaustion

The
of

available administrative remedies before a 42 U.S.C. § 1983 action
with respect to prison conditions by a prisoner may be initiated in
this Court.

Title 42 U.S.C. § 1997e(a) provides: "No action shall

be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined in any
jail,

prison

or

other

correctional

facility

until

such

administrative remedies as are available are exhausted."
Exhaustion

of

available

administrative

remedies

is

"a

precondition to an adjudication on the merits" and is mandatory
under the PLRA.

Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir.),

cert. denied, 129 S.Ct. 733 (2008); Jones v. Bock, 549 U.S. 199,
211 (2007); Woodford v. Ngo, 548 U.S. 81, 85 (2006) ("Exhaustion is
no longer left to the discretion of the district court, but is
mandatory.") (citation omitted).

3

Of import, "failure to exhaust is an affirmative defense under
the PLRA[.]"

Jones v. Bock, 549 U.S. at 216.

However, "the PLRA

exhaustion requirement is not jurisdictional[.]"
548 U.S. at 101.

Woodford v. Ngo,

See Turner v. Burnside, 541 F.3d 1077, 1082 (11th

Cir. 2008) (recognizing that the defense "is not a jurisdictional
matter").

Upon review of the Court's docket, Defendant Espino

filed a Motion to Dismiss (Doc. 59) and an Answer3 (Doc. 66) prior
to the filing of the Motion for Summary Judgment (Doc. 102).
This Court has said, "[t]he defense of exhaustion is properly
raise[d]

in

a

motion

administration.'"

to

dismiss

as

a

'matter

of

judicial

Bentley v. White, No. 2:07-cv-573-FtM-29DNF,

2009 WL 248242, at * 3 (M.D. Fla. Jan. 30, 2009) (not reported in
F.Supp.2d) (citation omitted).

As a result, the Court may look

beyond the pleadings by the parties to determine issues of fact
with regard to the exhaustion defense.

See Bryant v. Rich, 530

F.3d at 1374-75 ("Because exhaustion of administrative remedies is
a matter in abatement and not generally an adjudication on the
merits, an exhaustion defense . . . is not ordinarily the proper
subject for a summary judgment; instead, it 'should be raised in a
motion to dismiss, or be treated as such if raised in a motion for
summary judgment.'") (footnote and citations omitted).

3

The affirmative defense of failure to exhaust administrative
remedies is raised in the Answer. See Answer (Doc. 66) at 6.
4

The Eleventh Circuit addressed the matter of entertainment of
an unenumerated motion to dismiss under 12(b), Fed.R.Civ.P., based
on failure to exhaust administrative remedies:
That motions to dismiss for failure to
exhaust are not expressly mentioned in Rule
12(b)
is
not
unusual
or
problematic.
"'Federal courts . . . traditionally have
entertained certain pre-answer motions that
are not expressly provided for by the rules.'"
Ritza, 837 F.2d at 369 (quoting 5C Wright &
Miller, supra, § 1360 at 77). For instance,
courts may decide motions to dismiss that are
"'closely related to the management of the
lawsuit and might generally be characterized
as
involving
matters
of
judicial
administration.'" Id.; see e.g., Int'l Ass'n
of Entrepreneurs of Am. v. Angoff, 58 F.3d
1266, 1271 (8th Cir. 1995) ("While pre-answer
motions
are
ostensibly
enumerated
in
Fed.R.Civ.P. 12(b), district courts have the
discretion to recognize additional pre-answer
motions, including motions to stay cases
within federal jurisdiction when a parallel
state action is pending.").
Bryant v. Rich, 530 F.3d at 1375 (emphasis added).

The Eleventh

Circuit concludes that "exhaustion should be decided on a Rule
12(b) motion to dismiss[.]"

Id. (citation omitted).

More recently, the Eleventh Circuit explained: "under Federal
Rule of Civil Procedure 12(g)(2), a defendant must raise the
exhaustion defense in his first Rule 12 motion, otherwise the
defense is forfeited and cannot be raised in a later motion under
Rule 12."

Brooks v. Warden, No. 16-16853, 2017 WL 3669417, at *2

(11th Cir. Aug. 25, 2017) (footnote omitted).

Thus, Defendant

Espino cannot raise this defense in a second Rule 12 motion that he
5

failed to raise in his first.

Although he entitled his current

Motion a motion for summary judgment, it is due to be treated as a
motion to dismiss with regard to his assertion that Plaintiff
failed to exhaust administrative remedies.

Defendant Espino could

have raised the exhaustion requirement as a defense in his previous
motion,

but

he

did

not.

Pursuant

to

Rule

12(g)(2),

he

is

prohibited from raising exhaustion at this juncture since he failed
to raise it in his first motion.
(recognizing

that

the

PLRA

Brooks, 2017 WL 3669417, at *4

exhaustion

requirement

is

a

non-

jurisdictional claim-processing rule, and is subject to forfeiture
under Rule 12(g)(2)).
In conclusion, the exhaustion requirement should have been
raised in Defendant Espino's Motion to Dismiss. This untimely
assertion of the exhaustion defense is barred under Rule 12(g)(2);
therefore, Defendant Espino's Motion, to the extent it is based on
the

affirmative

defense

of

failure

to

exhaust

administrative

remedies, is due to be DENIED.
V.

Dr. Espino

Plaintiff contends that Defendant Espino was deliberately
indifferent to his serious medical needs.

The requirements to

establish an Eighth Amendment claim with respect to medical care
are:
The
Eighth
Amendment's
prohibition
against "cruel and unusual punishments"
protects
a
prisoner
from
"deliberate
indifference to serious medical needs."
6

Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct.
285, 50 L.Ed.2d 251 (1976). To state a claim
of
unconstitutionally
inadequate
medical
treatment, a prisoner must establish "an
objectively
serious
[medical]
need,
an
objectively insufficient response to that
need, subjective awareness of facts signaling
the need, and an actual inference of required
action from those facts."
Taylor v. Adams,
221 F.3d 1254, 1258 (11th Cir. 2000).
Kuhne v. Fla. Dep't of Corr., 745 F.3d 1091, 1094 (11th Cir. 2014).
"A serious medical need is 'one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that
even a lay person would easily recognize the necessity for a
doctor's attention.' In the alternative, a serious medical need is
determined by whether a delay in treating the need worsens the
condition." Mann v. Taser Inter., Inc., 588 F.3d 1291, 1307 (2009)
(quoting Hill v. Dekalf Reg'l Youth Det. Ctr., 40 F.3d 1176, 1187
(11th Cir. 1994), abrogated on other grounds by Hope v. Pelzer, 536
U.S. 730 (2002)).
To satisfy the subjective component, a plaintiff must prove
the following:
"(1) subjective knowledge of a risk of serious
harm; (2) disregard of that risk; (3) by
conduct that is more than [gross] negligence."
Bozeman v. Orum, 422 F.3d 1265, 1272 (11th
Cir. 2005) (alteration in original) (internal
quotation marks omitted). Although we have
occasionally stated, in dicta, that a claim of
deliberate indifference requires proof of
"more than mere negligence," McElligott v.
Foley, 182 F.3d 1248, 1255 (11th Cir. 1999),
our earlier holding in Cottrell, 85 F.3d at

7

1490[4], made clear that, after
Brennan, 511 U.S. 825, 114 S.Ct.
L.Ed.2d 811 (1994), a claim of
indifference requires proof of more
negligence.

Farmer v.
1970, 128
deliberate
than gross

Townsend v. Jefferson Cty., 601 F.3d 1152, 1158 (11th Cir. 2010).
A plaintiff must demonstrate that a defendant's responses to
his medical needs were poor enough to constitute an unnecessary and
wanton infliction of pain, and not merely accidental inadequacy,
negligence in treatment, or even medical malpractice actionable
under state law.

Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir.

2000) (citing Estelle v. Gamble, 429 U.S. 97, 105-106 (1976)),
cert. denied, 531 U.S. 1077 (2001).

As such, Plaintiff must have

had

an

an

objectively

serious

need,

objectively

insufficient

response to that need, subjective awareness of facts signaling the
need and an actual inference of required action from the facts
presented.

Taylor v. Adams, 221 F.3d at 1258.

Upon review, the Court is not convinced that Plaintiff has
established an objectively serious medical need with regard to his
claimed injuries to his ear and rectum.

Although Plaintiff

apparently believes that the medical records will show his serious
medical needs, that is not the case.

Dr. Albert Carl Maier, in his

Declaration (Doc. 102-4 at 2), states that "[n]o serious medical
need nor condition was manifest at any time during the inmate's
evaluation on August 6, 2012."

4

Furthermore, he opines that "Dr.

Cottrell v. Caldwell, 85 F.3d 1480 (11th Cir. 1996).
8

Espino's

review

of

Nurse

Stokes'

evaluation

was

similarly

appropriate for such a patient and their conjoined level of care
comported

with

presented."

that

required

for

the

clinical

complaints

Id.

After his allegation of staff abuse, Plaintiff was taken to
the institutional Emergency Room on August 6, 2012, and examined by
Nurse Stokes.
Stokes

took

(Doc. 111-1 at 37).
Plaintiff's

vitals

The records shows that Nurse
and

found

Plaintiff

to

be

ambulatory, alert, oriented to his surroundings, and verbally
responsive to questions. Id. Nurse Stokes recorded that Plaintiff
told her that he had been hit in the left ear twice, grabbed around
the throat, and had a finger inserted in his rectum.

Id.

Upon

examination, Nurse Stokes found no external marks or bruising. Id.
When she assessed Plaintiff's rectum, she found no swelling,
bleeding, or discharge.

Id.

The Diagram of Injury reflects no injury identified.
38.

Id. at

With respect to the left ear examination, Nurse Stokes found

the eardrum in tact and no wounds.

Id.

Nurse Stokes determined that no treatment need be provided and
the physician need not be notified.

Id. at 37.

Plaintiff was

returned to confinement. Id. In her discharge notes, Nurse Stokes
referred Plaintiff to be seen by the doctor the following morning.
Id. Dr. Espino reviewed the Emergency Room record, as evidenced by
his initials and stamp.

Id.

9

Plaintiff, in his Deposition, states that he does not recall
being assessed by the nurse.

(Doc. 102-3 at 48-49).

memory may be dim, but the record is clear.

Plaintiff's

Pursuant to the

Incident Report, dated August 6, 2012, Plaintiff was released from
Self Harm Observation Status (SHOS) and re-housed on M Wing. (Doc.
111-1 at 74).

He was

escorted to the medical clinic and received

a post-alleged-staff-abuse physical, conducted by SLPN Dena Stokes.
Id.

See also Bureau of State Investigations Case Summary Case

Number 12-2-8962 (referring to Nurse Stokes' physical examination
of Plaintiff) (Doc. 111-1 at 77).
Dr. Espino, in his Declaration (Doc. 102-5 at 1) states that
he saw Plaintiff on August 7, 2012 and reviewed Plaintiff's medical
chart,

including

Nurse

Stokes'

notes

regarding

examination she conducted on August 6, 2012.

the

physical

With regard to Dr.

Espino's decision not to re-examine Plaintiff the day after Nurse
Stokes' examination, Dr. Espino explained: "[b]ecause Nurse Stokes
noted no bruising, swelling, bleeding, discharge, or any other
injury to Plaintiff's ear or rectum, I determined it was not
necessary for me to conduct additional examination of a patient
with no injury."

Id. at 2.

The medical records do not support Plaintiff's claim that he
presented a serious medical need to Dr. Espino that was not
addressed. Even assuming Plaintiff had a serious medical need, the
nurse, the immediate medical provider in the clinic, saw Plaintiff

10

and examined him.

She found no external marks or bruising.

Upon

examination of Plaintiff's rectum, she found no swelling, bleeding,
or discharge.

Upon examination of the left ear, she found the

eardrum in tact and no wounds.

She concluded that based on her

examination, Plaintiff did not need treatment and he was discharged
to confinement.
Plaintiff has not demonstrated an objectively insufficient
response to his medical needs.

Although Defendant Espino may not

have been compassionate and empathetic towards Plaintiff, Dr.
Espino reviewed Plaintiff's medical chart, including the nurse's
extensive notes, and found that an additional medical examination
was not called for under the circumstances presented.
Plaintiff must show subjective awareness of facts signaling
the need and an actual inference of required action from the facts
presented.

Although Plaintiff told the medical staff he had been

struck on the ear and had a finger placed in his rectum, the
medical

staff

did

not

find

Plaintiff's

condition

to

require

additional medical attention, other than what he received.
The record shows that Plaintiff received medical attention;5
therefore, the only way the he can effectively create a genuine

5

Plaintiff received prompt medical attention from a nurse in
the clinic once he claimed he had been assaulted.
The nurse
examined Plaintiff and found no identifiable injuries. Dr. Espino
saw Plaintiff the following day, reviewed Plaintiff's chart,
including Nurse Stokes' record of examination, and decided that
Plaintiff's complaints or observable condition did not require
further medical attention through examination.
11

issue of fact defeating an adverse motion for summary judgment is
to produce some opinion evidence from a health care provider.
Plaintiff's expression of lay opinion will not suffice to create a
triable issue, especially given the standard is one of gross
incompetence amounting to deliberate indifference as distinguished
from medical negligence.

Upon review, Plaintiff failed to produce

some opinion evidence from a health care provider.
Moreover, based on the record evidence, a medical professional
(a nurse) determined that Plaintiff was not suffering from a
treatable

injury.

determined

that

The
an

doctor

reviewed

additional

her

examination

assessment,
was

and

unnecessary.

Plaintiff has not demonstrated the seriousness of his medical need
on August 7, 2012.

Indeed, he has failed to show, through the

medical records and evidence he submitted, that he suffered any
injury

attributable

to

Defendant

Espino's

alleged

deliberate

indifference in denying him an additional examination two days
after the alleged assault.

The record demonstrates that the

medical staff responded appropriately to Plaintiff's claim that he
had been assaulted by staff, and any contention otherwise is
contradicted by the record.
Under

the

circumstances

at

issue,

even

if

Plaintiff's

treatment were to be considered less than adequate or medical
malpractice,

"[a]ccidents,

mistakes,

negligence,

and

medical

malpractice are not 'constitutional violation[s] merely because the

12

victim is a prisoner.'"

Harris v. Coweta Cty., 21 F.3d 388, 393

(11th Cir. 1994) (citing Estelle v. Gamble, 429 U.S. at 106).
Defendant Espino, through his Declaration, the Declaration of Dr.
Maier, and documentary evidence, has met the burden of showing that
there is no genuine issue of fact concerning whether he was
deliberately indifferent to Plaintiff's serious medical needs.
Therefore, his Motion is due to be granted.
VI. Defendant Whitehead
In the Amended Complaint, Plaintiff alleges that Defendant
Whitehead told his subordinates to beat inmates, use excessive
force, and to treat inmates cruelly.

Id. at 8.

Plaintiff also

alleges that Defendant Whitehead knew that his subordinates were
using excessive force. Id. Defendant Whitehead contends that this
claim

is

wholly

unsupported,

conclusory allegations.
Plaintiff,

in

other

than

through

Plaintiff's

Motion at 21.

his

Deposition,

testified

that

Defendant

Whitehead told an unnamed officer to beat Plaintiff up. (Doc. 1023 at 80-81).

This took place before the allegations against

Defendant Oliveros.

Id. at 81.

officer was not Oliveros.

Plaintiff added that the unnamed

Id. at 84.

When asked whether the

unnamed officer did anything to Plaintiff, Plaintiff said the
unnamed officer "kept coming around and calling me names and
stuff."

Id. at 85.

13

Plaintiff states that Defendant Whitehead was not physically
present on the date of the assault by Oliveros.

Id. at 84.

Plaintiff has no knowledge that Defendant Whitehead spoke to
Defendant Oliveros about Plaintiff prior to the assault.

Id.

Plaintiff did not witness Defendant Whitehead talking to Oliveros
about Plaintiff. Id. Plaintiff admitted that he had not witnessed
any

conversations

between

Defendant

officers discussing Plaintiff.
Plaintiff
Defendant

references

Whitehead

talk

two
to

Whitehead

and

any

other

claims

heard

Id. at 85.
witnesses
an

officer

that
about

he

Plaintiff,

and

Plaintiff identifies these witnesses as Alan Cordell and Ron
Meadows.

Id. at 81-82.

Inmates Cordell and Meadows signed

affidavits on July 17 2015 and June 4, 2015, respectively.
102-7 at 1-3); (Doc. 11-1 at 11-12).

(Doc.

Neither of these inmates

attest that they heard Defendant Whitehead talk to an officer about
Plaintiff.

Id.

Both inmates in their affidavits state that they

heard Defendant Whitehead tell his officers to use excessive force
on

inmates,

but

the

time

period

that

these

statements

were

allegedly made by Defendant Whitehead is not provided in the
affidavits, and neither is the identity of the officers.

More

importantly, neither of these witnesses attests that he heard
Defendant Whitehead tell Defendant Oliveros to use excessive force
on Plaintiff.

14

In this civil rights action, Plaintiff must demonstrate a
causal connection between the actions of Defendant Whitehead and
the alleged constitutional deprivation.
F.3d 1263, 1269 (11th Cir. 1999).

Hartley v. Parnell, 193

Defendant Whitehead contends

that Plaintiff is attempting to hold him responsible based on a
theory of respondeat superior.

Motion at 22.

Defendant Whitehead

also asserts that Plaintiff has failed to establish a causal
connection between Defendant Whitehead's actions and the alleged
deprivation.

Id.

at

23.

In

this

instance,

Plaintiff

must

demonstrate a causal connection between Defendant Whitehead's
actions and the assault by Defendant Oliveros, which took place on
August 5, 2012.
The Eleventh Circuit provides guidance for employing the
rigorous standard for establishing supervisory liability in a civil
rights action:
"Supervisory liability under section 1983 may
be shown by either the supervisor's personal
participation in the acts that comprise the
constitutional violation or the existence of a
causal connection linking the supervisor's
actions with the violation." Lewis v. Smith,
855 F.2d 736, 738 (11th Cir. 1988) (per
curiam). Personal participation occurs when,
for example, the supervisor inflicts the
injury himself. See Hewett v. Jarrard, 786
F.2d 1080, 1087 (11th Cir. 1986). A causal
connection can be established "when facts
support an inference that the supervisor
directed the subordinates to act unlawfully or
knew
that
the
subordinates
would
act
unlawfully and failed to stop them from doing
so." Mercado v. City of Orlando, 407 F.3d

15

1152, 1158 (11th Cir. 2005) (quotation
omitted). This standard is quite rigorous. Id.
Smith v. LePage, 834 F.3d 1285, 1298 (11th Cir. 2016).
In this case, there is no suggestion that Defendant Whitehead
personally participated in the alleged violation.

To the extent

Plaintiff is raising a claim of failure to protect, the Court
should inquire as to whether the individual had the ability to
prevent or stop a constitutional violation and failed to exercise
his authority as a supervisor to prevent or stop the constitutional
violation. Keating v. City of Miami, 598 F.3d 753, 765 (11th Cir.)
(finding a supervisor may be liable under a theory of supervisory
liability if he has the ability to prevent or discontinue a known
constitutional violation and then fails to exercise his authority
to stop the constitutional violation).

Of course, "[e]ven when an

officer is not a participant in the excessive force, he can still
be liable if he fails to take reasonable steps to protect the
victim."

Ledlow v. Givens, 500 F. App'x 910, 914 (11th Cir. 2012)

(per curiam) (citation omitted), cert. denied, 133 S.Ct 2802
(2013).
However, being made aware of a grievance does not extend
supervisory liability.6

See King v. Henry, No. 5:09cv365/MCR/EMT,

6

Plaintiff's September 21, 2012 grievance complaining about
Oliveros being on I wing on September 19, 2012 and September 20,
2012, concerned events that happened after August 5, 2012. (Doc.
111-1 at 92).
Also, Plaintiff's grievance of November 7, 2012
concerns incidents involving Oliveros that allegedly took place on
November 5, 2012 and November 6, 2012, also after August 5, 2012,
16

2010 WL 1576739, at *2 (N.D. Fla. Apr. 20, 2010) (not reported in
F.Supp.2d) ("[F]iling a grievance with a supervisory person does
not alone make the supervisor liable for the allegedly violative
conduct brought to light by the grievance, even if the grievance is
denied.").

As noted previously, Plaintiff does not contend that

Defendant Whitehead was present on the date of the incident.
Furthermore, Plaintiff has no evidence that Defendant Whitehead
directed Oliveros to beat or assault Plaintiff. At most, Plaintiff
has stated that he heard Oliveros tell an unnamed officer to use
force against him, an event (a beating by the unnamed officer) that
never took place.
Other than the vague and conclusory allegations made by
Plaintiff and inmates Allen and Ron Meadows, that is that Defendant
Whitehead is known to direct his officers to use excessive force,
Plaintiff

has

failed

to

present

any

evidence

that

Defendant

Whitehead instructed Defendant Oliveros to use excessive force
against Plaintiff.
Based on the strict limitation on supervisory liability, the
Court concludes that Defendant Whitehead may not be held liable
under a theory of respondeat superior. See Braddy v. Fla. Dep't of
Labor & Emp't Sec., 133 F.3d 797, 801 (11th Cir. 1998) (finding

the date of the alleged assault. Id. at 94. Inmate Allen states
that he was on I wing with Plaintiff, apparently at the time
Plaintiff was placed on I wing after the August 5, 2012 incident.
17

supervisory liability requires something more than stating a claim
of liability under a theory of respondeat superior).

Furthermore,

nothing in Plaintiff's Amended Complaint or his deposition suggests
that Whitehead directed the use of force by Defendant Oliveros,
participated in the use of force, or witnessed it or knew it would
happen and failed to act. As such, Defendant Whitehead's Motion is
due to be granted.
VII.

Qualified Immunity

Recently, the Eleventh Circuit addressed qualified immunity,
an immunity not only from liability but also from suit.
Fransen, 857 F.3d 843, 849 (11th Cir. 2017).

The Eleventh Circuit

explained:
The qualified-immunity defense reflects
an effort to balance "the need to hold public
officials accountable when they exercise power
irresponsibly and the need to shield officials
from harassment, distraction, and liability
when they perform their duties reasonably."
Pearson v. Callahan, 555 U.S. 223, 231, 129
S.Ct. 808, 172 L.Ed.2d 565 (2009). The
doctrine resolves this balance by protecting
government officials engaged in discretionary
functions and sued in their individual
capacities unless they violate "clearly
established
federal
statutory
or
constitutional rights of which a reasonable
person would have known." Keating v. City of
Miami, 598 F.3d 753, 762 (11th Cir. 2010)
(quotation marks and brackets omitted).
As a result, qualified immunity shields
from
liability
"all
but
the
plainly
incompetent or one who is knowingly violating
the federal law." Lee v. Ferraro, 284 F.3d
1188, 1194 (11th Cir. 2002). But the
doctrine's protections do not extend to one
18

Jones v.

who "knew or reasonably should have known that
the action he took within his sphere of
official responsibility would violate the
constitutional rights of the [plaintiff]."
Harlow v. Fitzgerald, 457 U.S. 800, 815, 102
S.Ct. 2727, 73 L.Ed.2d 396 (1982) (internal
quotation marks and alteration omitted).
To invoke qualified immunity, a public
official must first demonstrate that he was
acting within the scope of his or her
discretionary authority. Maddox v. Stephens,
727 F.3d 1109, 1120 (11th Cir. 2013). As we
have
explained
the
term
"discretionary
authority," it "include[s] all actions of a
governmental official that (1) were undertaken
pursuant to the performance of his duties, and
(2) were within the scope of his authority."
Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir.
1994) (internal quotation marks omitted).
Here, it is clear that Defendant Officers
satisfied this requirement, as they engaged in
all of the challenged actions while on duty as
police officers conducting investigative and
seizure functions.
Because
Defendant
Officers
have
established that they were acting within the
scope of their discretionary authority, the
burden
shifts
to
[the
plaintiff]
to
demonstrate
that
qualified
immunity
is
inappropriate. See id. To do that, [the
plaintiff] must show that, when viewed in the
light most favorable to him, the facts
demonstrate that Defendant Officers violated
[Plaintiff's] constitutional right and that
that right was "clearly established ... in
light of the specific context of the case, not
as a broad general proposition[,]" at the time
of Defendant officers' actions. Saucier v.
Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150
L.Ed.2d 272 (2001), overruled in part on other
grounds by Pearson, 555 U.S. 223, 129 S.Ct.
808. We may decide these issues in either
order, but, to survive a qualified-immunity
defense, [the plaintiff] must satisfy both
showings.
Maddox,
727
F.3d
at
1120–21
(citation omitted).
19

Jones v. Fransen, 857 F.3d at 850–51.
Defendants Whitehead and Espino contend they are entitled to
qualified immunity because they did not commit any statutory or
constitutional violation.

Motion at 25.

Under the doctrine of

qualified immunity, Defendants may claim they are entitled to
qualified

immunity

capacities.

from

monetary

damages

in

their

individual

It is undisputed that Defendants were engaged in

discretionary functions during the events at issue.

To defeat

qualified immunity with respect to these Defendants, Plaintiff must
show both that a constitutional violation occurred and that the
constitutional right violated was clearly established.
These Defendants did not violate Plaintiff's constitutional
rights and are therefore entitled to qualified immunity. Given the
undersigned's conclusion that the Defendants' Motion should be
granted as to the Eighth Amendment claims against Defendants
Whitehead and Espino, and based on the state of the law on
qualified immunity in the Eleventh Circuit, qualified immunity
should be granted as to Defendants Whitehead and Espino.
Accordingly, it is now
ORDERED:
For the reasons stated in the opinion, Defendant Espino and
Whitehead's Motion for Summary Judgment (Doc. 102) is GRANTED with
respect to the Eighth Amendment claims against them and with
respect to their claim of entitlement to qualified immunity.

20

Judgment to that effect will be withheld pending adjudication of
the action as a whole.

See Rule 54, Fed. R. Civ. P.

DONE AND ORDERED at Jacksonville, Florida, this 7th day of
November, 2017.

sa 11/3
c:
Warren Oliver
Counsel of Record

21