Oliver v. Whitehead et al
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
Case No. 3:14-cv-1506-J-39JRK
OFFICER WHITEHEAD, et al.,
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
This cause is before the Court on Defendant Espino and
Whitehead's Motion for Summary Judgment (Motion) (Doc. 102).2
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.
In this opinion, the Court references the document and page
numbers designated by the electronic filing system.
Defendant Oliveros does not join this Motion.
Objections to Defendants' Reply (Doc. 117).
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.'"
Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011) (quoting Fed. R. Civ.
"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).
The Amended Complaint
The alleged facts supporting the Amended Complaint are set
deliberately indifferent to Plaintiff's serious medical needs, in
Complaint at 7.
Plaintiff states that after he was sexually and
physically battered on August 5, 2012, he went to medical and saw
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 raises an additional Eighth
Amendment claim against Defendant Whitehead.
that Whitehead told his subordinates to beat inmates, use excessive
force, and to treat inmates cruelly.
Id. at 8.
alleges that Defendant Whitehead knew that his subordinates were
using excessive force.
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.
available administrative remedies before a 42 U.S.C. § 1983 action
with respect to prison conditions by a prisoner may be initiated in
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
administrative remedies as are available are exhausted."
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).
Of import, "failure to exhaust is an affirmative defense under
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
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
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).
The affirmative defense of failure to exhaust administrative
remedies is raised in the Answer. See Answer (Doc. 66) at 6.
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
"'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
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
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).
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
Brooks v. Warden, No. 16-16853, 2017 WL 3669417, at *2
(11th Cir. Aug. 25, 2017) (footnote omitted).
Espino cannot raise this defense in a second Rule 12 motion that he
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
prohibited from raising exhaustion at this juncture since he failed
to raise it in his first motion.
Brooks, 2017 WL 3669417, at *4
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
remedies, is due to be DENIED.
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
against "cruel and unusual punishments"
indifference to serious medical needs."
Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct.
285, 50 L.Ed.2d 251 (1976). To state a claim
treatment, a prisoner must establish "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
"(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
1490, 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
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
response to that need, subjective awareness of facts signaling the
need and an actual inference of required action from the facts
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.
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."
Furthermore, he opines that "Dr.
Cottrell v. Caldwell, 85 F.3d 1480 (11th Cir. 1996).
appropriate for such a patient and their conjoined level of care
After his allegation of staff abuse, Plaintiff was taken to
the institutional Emergency Room on August 6, 2012, and examined by
(Doc. 111-1 at 37).
The records shows that Nurse
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.
examination, Nurse Stokes found no external marks or bruising. Id.
When she assessed Plaintiff's rectum, she found no swelling,
bleeding, or discharge.
The Diagram of Injury reflects no injury identified.
With respect to the left ear examination, Nurse Stokes found
the eardrum in tact and no wounds.
Nurse Stokes determined that no treatment need be provided and
the physician need not be notified.
Id. at 37.
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.
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.
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).
escorted to the medical clinic and received
a post-alleged-staff-abuse physical, conducted by SLPN Dena Stokes.
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
examination she conducted on August 6, 2012.
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
and examined him.
She found no external marks or bruising.
examination of Plaintiff's rectum, she found no swelling, bleeding,
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
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
Although Plaintiff told the medical staff he had been
struck on the ear and had a finger placed in his rectum, the
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
Plaintiff received prompt medical attention from a nurse in
the clinic once he claimed he had been assaulted.
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.
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
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
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.
treatment were to be considered less than adequate or medical
malpractice are not 'constitutional violation[s] merely because the
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.
alleges that Defendant Whitehead knew that his subordinates were
using excessive force. Id. Defendant Whitehead contends that this
Motion at 21.
Whitehead told an unnamed officer to beat Plaintiff up. (Doc. 1023 at 80-81).
This took place before the allegations against
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
Id. at 85.
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.
Plaintiff did not witness Defendant Whitehead talking to Oliveros
about Plaintiff. Id. Plaintiff admitted that he had not witnessed
officers discussing Plaintiff.
Id. at 85.
Plaintiff identifies these witnesses as Alan Cordell and Ron
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).
Neither of these inmates
attest that they heard Defendant Whitehead talk to an officer about
Both inmates in their affidavits state that they
heard Defendant Whitehead tell his officers to use excessive force
allegedly made by Defendant Whitehead is not provided in the
affidavits, and neither is the identity of the officers.
importantly, neither of these witnesses attests that he heard
Defendant Whitehead tell Defendant Oliveros to use excessive force
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.
also asserts that Plaintiff has failed to establish a causal
connection between Defendant Whitehead's actions and the alleged
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
"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
unlawfully and failed to stop them from doing
so." Mercado v. City of Orlando, 407 F.3d
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
Ledlow v. Givens, 500 F. App'x 910, 914 (11th Cir. 2012)
(per curiam) (citation omitted), cert. denied, 133 S.Ct 2802
However, being made aware of a grievance does not extend
See King v. Henry, No. 5:09cv365/MCR/EMT,
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,
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
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,
Whitehead instructed Defendant Oliveros to use excessive force
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.
supervisory liability requires something more than stating a claim
of liability under a theory of respondeat superior).
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.
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
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
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
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
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
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
established that they were acting within the
scope of their discretionary authority, the
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
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
Motion at 25.
Under the doctrine of
qualified immunity, Defendants may claim they are entitled to
It is undisputed that Defendants were engaged in
discretionary functions during the events at issue.
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
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.
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
Counsel of Record
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