Hall v. Palmer et al
Filing
68
ORDER granting in part and denying in part 35 Motion to Dismiss for Failure to State a Claim: granting as to Plaintiff's claim for compensatory damages, but denied with respect to Plaintiff's claim for nominal damages; granting as to any claim for monetary relief against Defendants Jones, Gay, McClellan, and Palmer in their official capacities; denying in all other respects. Denying 35 Motion to Sever; denying Ellis' 51 Motion to Dismiss for Failure to State a Claim; D efendants Jones, Gay, McClellan, Palmer, and Ellis shall respond to the Fourth Amended Complaint by November 30, 2017; defense counsel shall notify the Court if he is going to represent Defendants Maddox and Simmons by November 9, 2017, further instructions to counsel.. Signed by Judge Brian J. Davis on 10/20/2017. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ENOCH DONNELL HALL,
Plaintiff,
vs.
Case No. 3:15-cv-824-J-39JRK
JOHN PALMER etc.; et al.,
Defendants.
ORDER
I.
Status
Plaintiff Enoch Donnell Hall is an inmate confined on death
row at Florida State Prison (FSP).
Amended
Complaint
Complaint)
(Doc.
-
Injunctive
22)
represented by counsel.
pursuant
He is proceeding on a Fourth
Relief
Sought
(Fourth
Amended
to
U.S.C.
§
and
42
1983
is
Plaintiff filed his original Complaint
(Doc. 1) pro se on July 1, 2015.
This cause is before the Court on two pending motions to
dismiss: Defendants' [Jones, Gay, McClellan, and Palmer] Motion to
Dismiss and/or Sever (Defendants' Motion) (Doc. 35) and Defendant
Ellis' Motion to Dismiss (Ellis' Motion) (Doc. 51).1
filed responses to these motions.
Plaintiff
See Plaintiff's Response in
Opposition to Defendants' Motion to Dismiss and/or Sever (Response)
(Doc. 64); Plaintiff's Response in Opposition to Defendant Ellis'
1
In this opinion, the Court references the document and page
numbers designated by the electronic filing system.
Motion
to
Dismiss
(Response/Ellis).
The
Court
notes
that
Defendants Amanda Maddox and Lance Simmons, although served (Docs.
37 & 42), have not responded to the Fourth Amended Complaint.
II.
Motion to Dismiss
"To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
"A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable
inference
that
the
defendant
is
liable
for
the
misconduct alleged."
Id. (citing Twombly, 550 U.S. at 556).
"[T]he
court
tenet
that
a
must
accept
as
true
all
of
the
allegations contained in a complaint is inapplicable to legal
conclusions.
Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice."
Id. (citing Twombly, 550 U.S. at 555).
III.
Exhaustion of Administrative Remedies
Defendant Ellis contends that Plaintiff failed to exhaust his
administrative remedies prior to filing suit regarding his claim of
excessive force (Count V of the Fourth Amended Complaint) and Ellis
seeks the dismissal of that claim pursuant to 42 U.S.C. § 1997e(a).
Ellis' Motion at 2-7.
Ellis asserts that Plaintiff "never filed
any grievances alleging that Ellis or any other officer assaulted
2
him in May 2014."
Id. at 2.
See Declaration of Tammy Gibson
(Doc. 51-1); Declaration of Lawanda Sanders (Doc. 51-2).
The Prison Litigation Reform Act (PLRA) requires exhaustion 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."
Defendant Ellis bears the burden of proving a failure to
exhaust available administrative remedies. Turner v. Burnside, 541
F.3d 1077, 1082-83 (11th Cir. 2008), relying on Jones v. Bock, 549
U.S. 199 (2007).
In order to make this determination, guidelines
are provided for reviewing a prisoner civil rights action for
exhaustion compliance:
Before
a
prisoner
may
bring
a
prison-conditions suit under § 1983, the
Prison Litigation Reform Act of 1995 requires
that he exhaust all available administrative
remedies. 42 U.S.C. § 1997e(a); see also Booth
v. Churner, 532 U.S. 731, 736, 121 S.Ct. 1819,
1822, 149 L.Ed.2d 958 (2001). The purpose of
the PLRA's exhaustion requirement is to
"afford
corrections
officials
time
and
opportunity to address complaints internally
before allowing the initiation of a federal
case." Woodford v. Ngo, 548 U.S. 81, 93, 126
S.Ct. 2378, 2387, 165 L.Ed.2d 368 (2006)
(quotation omitted). To properly exhaust, a
prisoner
must
"[c]ompl[y]
with
prison
grievance procedures." Jones v. Bock, 549 U.S.
3
199, 218, 127 S.Ct. 910, 922–23, 166 L.Ed.2d
798 (2007).
Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1208 (11th
Cir. 2015).
Several factors guide the Court in reviewing the matter of
exhaustion
of
administrative
remedies.
Initially,
the
Court
recognizes that 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, 555 U.S. 1074 (2008); Jones, 549 U.S. at 211;
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).
The Supreme Court has stated that "failure to
exhaust is an affirmative defense under the PLRA[.]"
U.S. at 216.
Jones, 549
Although, "the PLRA exhaustion requirement is not
jurisdictional[,]"
Woodford, 548 U.S. at 101, "exhaustion is
mandatory under the PLRA[;]" therefore, "unexhausted claims cannot
be brought."
Pavao v. Sims, No. 15-11790, 2017 WL 540989, at * 3
(11th Cir. Feb. 10, 2017) (per curiam) (citation omitted).
This Court explained,
"The only limit to § 1997e(a)'s mandate is the
one baked into its text: An inmate need
exhaust only such administrative remedies as
are 'available.'" 136 S. Ct. 1850, 1862
(2016). For an administrative remedy to be
available, the "remedy must be 'capable of use
for the accomplishment of [its] purpose.'"
Turner v. Burnside, 541 F.3d 1077, 1084 (11th
4
Cir. 2008) (quoting Goebert v. Lee Cty., 510
F.3d 1312, 1322–23 (11th Cir. 2007)).
In Ross,[2] the Supreme Court identified
three circumstances in which administrative
remedies would be considered unavailable.
First,
"an
administrative
procedure
is
unavailable when (despite what regulations or
guidance materials may promise) it operates as
a simple dead end—with officers unable or
consistently unwilling to provide any relief
to aggrieved inmates." 136 S. Ct. at 1859.
Second, "an administrative scheme might be so
opaque that it becomes, practically speaking,
incapable of use. In this situation, some
mechanism exists to provide relief, but no
ordinary prisoner can discern or navigate it."
Id. Third, an administrative remedy is
unavailable "when prison administrators thwart
inmates from taking advantage of a grievance
process
through
machination,
misrepresentation, or intimidation." Id. at
1860.
Davis v. Sec'y, Dept. of Corr., No. 3:15-CV-649-J-34JRK, 2017 WL
1885366, at *3–4 (M.D. Fla. May 9, 2017) (emphasis added).
In undertaking a review of the question of exhaustion, "[t]he
only
facts
pertinent
to
determining
whether
a
prisoner
has
satisfied the PLRA's exhaustion requirement are those that existed
when he filed his original complaint. Smith v. Terry, 491 F. App'x
81, 83 (11th Cir. 2012) (per curiam) (citing Harris v. Garner, 216
F.3d 970, 981 (11th Cir. 2000) (en banc)). Indeed, "[t]he time the
[PLRA] sets for determining whether exhaustion of administrative
remedies has occurred is when the legal action is brought, because
it is then that the exhaustion bar is to be applied."
2
Ross v. Blake, 136 S.Ct. 1850 (2016).
5
Wheeler v.
Davis, No. 5:14CV271/WS/CJK, 2017 WL 1029119, at *3 (N.D. Fla. Feb.
6, 2017) (report and recommendation) (quoting Goebert v. Lee Cty.,
510 F.3d 1312, 1324 (11th Cir. 2007)) (emphasis in Wheeler), report
and recommendation adopted by No. 5:14CV271-WS/CJK, 2017 WL 1027035
(N.D. Fla. Mar. 16, 2017). Thus, the relevant question before this
Court
is
whether
Plaintiff
properly
exhausted
his
available
administrative remedies as of July 1, 2015.
As noted by Defendant Ellis, Plaintiff was required to exhaust
his administrative remedies prior to filing his lawsuit.
Ellis'
Motion at 2. The question of availability of the procedure goes to
whether the administrative procedure was available before July 1,
2015, prior to the filing of the initial complaint.
To construe
the exhaustion requirement otherwise would render the PLRA "a
toothless scheme."
Woodford, 548 U.S. at 95.
Plaintiff asserts that he alleged sufficient facts in his
Complaint
to
satisfy
the
exhaustion
requirement,
and
alternatively, his failure to exhaust administrative remedies
should be excused because Defendant Ellis threatened Plaintiff with
further
harm
if
Plaintiff's
continued
to
complain
about
his
conditions. Response/Ellis at 1. Indeed, Plaintiff contends that,
through his actions, "Ellis effectively waived, or should otherwise
be estopped from asserting" Plaintiff's failure to satisfy the
exhaustion requirement.
Id.
6
In
undertaking
a
review
concerning
the
exhaustion
of
administrative remedies, the Court must employ a two-step process:
After a prisoner has exhausted the
grievance procedures, he may file suit under §
1983. In response to a prisoner suit,
defendants may bring a motion to dismiss and
raise as a defense the prisoner's failure to
exhaust these administrative remedies. See
Turner, 541 F.3d at 1081. In Turner v.
Burnside we established a two-step process for
resolving motions to dismiss prisoner lawsuits
for failure to exhaust. 541 F.3d at 1082.
First, district courts look to the factual
allegations in the motion to dismiss and those
in the prisoner's response and accept the
prisoner's view of the facts as true. The
court should dismiss if the facts as stated by
the prisoner show a failure to exhaust. Id.
Second, if dismissal is not warranted on the
prisoner's view of the facts, the court makes
specific findings to resolve disputes of fact,
and should dismiss if, based on those
findings, defendants have shown a failure to
exhaust. Id. at 1082–83; see also id. at 1082
(explaining that defendants bear the burden of
showing a failure to exhaust).
Whatley, 802 F.3d at 1209.
Additionally,
not
only
is
there
a
recognized
exhaustion
requirement, "the PLRA exhaustion requirement requires proper
exhaustion."
Woodford, 548 U.S at 93.
Because
exhaustion
requirements
are
designed to deal with parties who do not want
to exhaust, administrative law creates an
incentive for these parties to do what they
would otherwise prefer not to do, namely, to
give the agency a fair and full opportunity to
adjudicate their claims. Administrative law
does this by requiring proper exhaustion of
administrative remedies, which "means using
all steps that the agency holds out, and doing
so properly (so that the agency addresses the
7
issues on the merits)."
1024. . . .
Id. at 90 (emphasis added).
Pozo,[3] 286 F.3d, at
As such, "[p]roper exhaustion demands
compliance with an agency's deadlines and other critical procedural
rules[.]"
Id.
In order to provide context, the Court will set forth the
applicable administrative remedies.
The Florida Department of
Corrections (FDOC) provides an internal grievance procedure for
inmates,
and
it
is
set
forth
Administrative Code (F.A.C.).
three-step grievance process.
described
this
available
in
Chapter
33-103,
Florida
Generally, the procedure provides a
The Eleventh Circuit succinctly
administrative
grievance
procedure,
including the specialized process adopted for grievances of a
medical nature:
In
Florida,
the
grievance
process
consists of a three-step procedure. An inmate
must first file an "informal grievance ... to
the staff member who is responsible in the
particular area of the problem." Fla. Admin.
Code Ann. § 33–103.005(1). The second step
requires the inmate file a formal grievance
with the warden. Id. § 33–103.006(1)(a). If
the inmate is unsuccessful at this point, he
may submit an appeal to the Secretary of the
DOC. Id. § 33–103.007.
Medical
grievances
require
only
a
two-step procedure: the inmate must file a
formal grievance at the institutional level
with the chief health officer. If the inmate
3
Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir.), cert. denied,
537 U.S. 949 (2002).
8
is unsuccessful, he may file an appeal with
the Secretary. Id. § 33–103.008.
Kozuh v. Nichols, 185 F. App'x 874, 877 (11th Cir. 2006) (per
curiam), cert. denied, 549 U.S. 1222 (2007).
A formal grievance of a medical nature can be filed at the
institutional level. F.A.C. § 33-103.008(1), Grievances of Medical
Nature.
If denied, the inmate could appeal to the Office of the
Secretary.
F.A.C. § 33-103.007(1).
The inmate is required to
attach a copy of his formal grievance and response, except under
specified circumstances, to the appeal. F.A.C. § 33-103-007(5)(a).
Also,
the
FDOC
provides
for
a
filing
of
an
emergency
grievance. By definition, an emergency grievance is "[a] grievance
of those matters which, if disposed of according to the regular
time frames, would subject the inmate to substantial risk of
personal injury or cause other serious and irreparable harm to the
inmate." F.A.C. § 33-103-002(4). An inmate may proceed directly to
this step if he is submitting an emergency grievance and he (1)
states at the beginning of Part A of Form DC1-303 that the
grievance concerns an emergency; and (2) clearly states "the reason
for not initially bringing the complaint to the attention of
institutional
staff
and
by-passing
the
informal
and
formal
grievance steps of the institution or facility[.]" F.A.C. § 33103.007(6)(a)(1)-(2).
The inmate must provide information or
evidence to support his claim of fear of reprisal. See Dimanche v.
Brown, 783 F.3d 1204, 1212-13 (11th Cir. 2015) (an inmate must
9
clearly state his reason for by-passing the required routine steps
for exhausting his administrative remedies, like fear of being
killed by identified, high-ranking institutional officials).
The
reviewer may return the grievance without action if convinced there
is no valid reason within the grievance for by-passing the lower
levels and finds the grievance is in non-compliance with the
rules.4
F.A.C. § 33-103.014(1)(f) ("[t]he inmate did not provide
a valid reason for by-passing the previous levels of review as
required or the reason provided is not acceptable.").
The record shows that Plaintiff did not file an informal
grievance
or
a
Defendant Ellis.
formal
grievance
at
the
institution
against
In addition, he did not provide the Secretary
with a copy of a formal grievance filed at the institutional level,
since
he
never
filed
one
at
that
level.
The
record
also
demonstrates that Plaintiff did not file an emergency grievance
directly with the Secretary concerning the actions of Defendant
Ellis.
Finally, Plaintiff did not complete the two-step process
with respect to his claim of deliberate indifference to his wellbeing and serious medical needs with regard to the actions of
4
Direct grievances to the Office of the Secretary are
permitted in very limited circumstances, as set forth in F.A.C. §
33-103.007(6)(a), Direct Grievances. If improperly submitted to
the Secretary, the grievance is returned to the inmate, providing
the reason for return and informing the inmate to resubmit his
grievance at the appropriate level. Id. at 33-103.007(6)(d). It
is returned without further processing. Id. at 33-103.014(1)(f).
10
Defendant Ellis.
See Fourth Amended Complaint at 9.
As such,
"[t]here is no material conflict in the factual allegations in
[Defendants'] motion and those in Plaintiff's response insofar as
concerns whether Plaintiff correctly completed the [multi-step]
grievance process."
Pavao v. Sims, No. 5:13-cv233-WS, 2015 WL
1458161, at *5 (N.D. Fla. Mar. 30, 2015), aff'd by 679 F. App'x 819
(11th Cir. 2017).
Of import, Plaintiff was not required to plead exhaustion. As
a
result,
the
Complaint,
Amended
Complaint,
Second
Amended
Complaint, and Third Amended Complaint were not dismissed sua
sponte, and Plaintiff was given the opportunity to file a Fourth
Amended Complaint after appointment of counsel to represent him.
See Order (Doc. 18).
Upon review of the Fourth Amended Complaint,
the factual allegations presented do not demonstrate exhaustion
through
the
retaliation
grievance
or
threats
process;
of
however,
retaliation
to
it
is
make
possible
administrative
remedies unavailable to a prisoner:
We conclude that a prison official's
serious threats of substantial retaliation
against an inmate for lodging or pursuing in
good faith a grievance make the administrative
remedy "unavailable," and thus lift the
exhaustion requirement as to the affected
parts of the process if both of these
conditions are met: (1) the threat actually
did deter the plaintiff inmate from lodging a
grievance or pursuing a particular part of the
process; and (2) the threat is one that would
deter a reasonable inmate of ordinary firmness
and fortitude from lodging a grievance or
pursuing the part of the grievance process
11
for
that the inmate failed to exhaust. See
Hemphill, 380 F.3d at 688 ("The test for
deciding whether the ordinary grievance
procedures were available must be an objective
one: that is, would 'a similarly situated
individual of ordinary firmness' have deemed
them available." (citation omitted)); cf.
Smith v. Mosley, 532 F.3d 1270, 1277 (11th
Cir. 2008) (noting that an inmate claiming a
First Amendment violation based on retaliation
for a complaint about prison conditions must
show that the discipline "would likely deter a
prisoner
of
ordinary
firmness
from
complaining" (quotation marks and alteration
omitted)). The particulars of this standard
for
determining
the
availability
of
administrative remedies where a threat is
alleged can be honed against the facts of
future cases, with particular attention paid
to the special circumstances and security
needs of prisons.
Turner v. Burnside, 541 F.3d at 1085.
Thus,
the
first
question
before
the
Court
is
did
"any
retaliation or threats of retaliation" deter Plaintiff from filing
grievances, making the administrative remedy unavailable. Pavao v.
Sims, 679 F. App'x 819, 826 (11th Cir. 2017) (per curiam).
And,
secondly, was the threat one that would deter a reasonable inmate
of ordinary firmness and fortitude from pursuing his administrative
remedies and lodging grievances. See Cole v. Sec'y Dep't of Corr.,
451 F. App'x 827, 828 (11th Cir. 2011) (per curiam) (addressing
whether the threat actually deterred the inmate from lodging a
grievance or pursuing a part of the administrative process, and if
the threat was one that would deter a reasonable inmate of ordinary
firmness and fortitude).
12
A brief summary of the factual allegations applicable to the
claims raised in the Fourth Amended Complaint will be given to
provide context to Plaintiff's contention that retaliation or
threats of retaliation deterred him from filing grievances, making
the FDOC grievance process unavailable.
following.
Plaintiff alleges the
He is a death row inmate confined at FSP and his
treatment and housing differs from similarly situated death row
prisoners at FSP.
Fourth Amended Complaint at 6.
In particular,
he is housed in a cell built and designated as a disciplinary
confinement cell, even though Plaintiff had not been found guilty
of a disciplinary infraction.
Id.
Plaintiff file a grievance
concerning his housing conditions being different from other death
row prisoners and received a response that it was due to his
conviction for which he was sentenced to death. Id. Plaintiff was
told in the response to the grievance that he is on "heightened
security" (HS) status.
Id. at 6-7.
Plaintiff states that this
particular status is not referenced in the Florida Administrative
Code
for
Inmate
Treatment
Directive.
Id.
at
7.
Plaintiff
describes this status as "quasi-punitive," and created to punish
the inmate rather than adopted for valid security concerns.
Id.
On or about February 13, 2013, after having almost two-years
of the contact visitation allowed for death row inmates, Plaintiff
visitation privileges were removed and Plaintiff was placed on noncontact
status.
Id.
This
was
13
done
without
notification,
memorandum or hearing.
Id.
Eventually, Plaintiff was told by
Defendant Maddox, upon inquiry, that the visitation status change
was implemented by Defendant Palmer due to security concerns.
When
Plaintiff
saw
Defendant
Palmer
during
a
Id.
walk-through,
Plaintiff asked why he had been placed on non-contact status, and
Defendant Palmer responded that "you were told you would suffer
consequences for your actions."
Id.
Plaintiff states that the
Defendants placed him on non-contact status in retaliation for
Plaintiff filing grievances and the placement was imposed without
any due process.
Plaintiff
Id.
is
not
permitted
to
participate
recreation like similarly situated prisoners.
Id.
in
outdoor
Instead, when
he is granted outdoor exercise, it is confined to an outdoor cage
isolated from other prisoners.
feet.
Id. at 8.
exercise
in
a
Id.
The exercise cage is 10 by 15
The other similarly situated death row inmates
bigger,
open
yard,
and
they
are
afforded
approximately six hours per week of communal outdoor recreation,
meted out in two three-hour sessions.
Id.
Defendant Palmer
punished Plaintiff with the HS quasi-punitive status.
Id.
On May 21, 2014, Plaintiff Hall was returned to his cell by
Defendants Simmons and Ellis, corrections officers at FSP.
Id.
Once in the cell, the officers instructed Plaintiff to walk
backward towards the cuff port and extend his arms out of the
opening with his palms facing upwards. Id. Defendants Simmons and
14
Ellis grabbed Plaintiff's arms, yanking them through the port
opening.
Id.
Defendants then beat Plaintiff's arms, hands, and
wrist with a metal object.
Id.
During the beating, Ellis said:
"this is what happens when you do not do what you are told to do."
Id.
On May 22, 2014, Plaintiff requested medical attention due to
extreme pain in his left hand and wrist.
Id.
He was evaluated by
a nurse who noted severe swelling in his hand and a lump protruding
from his wrist.
Id.
The nurse told Plaintiff that he would be
placed on the list to be evaluated by a doctor.
Id.
On May 23,
2014, Plaintiff again requested to be evaluated by a nurse due to
continued pain.
Id. at 9.
The nurse told Plaintiff that he was on
the list to be evaluated by a doctor.
Id.
On June 10, 2014,
Defendant Ellis confronted Plaintiff about his seeking medical
care, and Ellis told Plaintiff that it would be in his best
interest to stop writing grievances or things could get much worse.
Id.
In fear for his well-being, Plaintiff did not file any more
grievances or seek medical attention for his injured wrist.
Id.
Defendant Palmer approved Defendants Simmons and Ellis' actions.
Id.
Defendant Jones was aware of these unlawful conditions and
treatment through Plaintiff's numerous grievances, but continued to
encourage
and
approve
these
conditions
and
treatment.
Id.
Defendants have failed to provide Plaintiff with any meaningful
15
justification or explanation for the deprivation of privileges and
confinement in this new form of disciplinary confinement, HS, as
well as the restrictions on outdoor exercise privileges. Id. at 910.
Plaintiff
claims
he
was
subjected
to
cruel
and
unusual
punishment in violation of the Eighth and Fourteenth Amendments in
Count V, Cruel and Unusual Punishment - Excessive Force (Defendants
Simmons & Ellis).
Id. at 13.
Plaintiff asserts that Defendant
Ellis used excessive force on May 21, 2014, by yanking Plaintiff's
hands behind him and beating Plaintiff's arms, hands, and wrist
with a metal object.
Id. at 14.
Plaintiff contends there was no
penological justification for the excessive use of force, and this
unprovoked conduct caused Plaintiff permanent injury to his left
wrist.
Id.
The first question before the Court is did any retaliation or
threats of retaliation actually deter Plaintiff from lodging a
grievance.
Of note, Plaintiff states he was placed in a quasi-
punitive status as punishment rather than for valid security
concerns.
Plaintiff grieved the matter and was told he had been
placed on HS.
Defendant Palmer added the denial of contact
visitation after two-years of contact visitation without incident
or disciplinary infractions.
When Plaintiff inquired of Defendant
Palmer as to the reason for this non-contact status, Defendant
Palmer said Plaintiff was told he would suffer consequences for his
16
actions. Plaintiff claims the imposition of non-contact visitation
was a retaliatory action taken in response to Plaintiff filing
grievances.
After what has been described as this initial retaliatory
action,
Plaintiff
claims
retaliated against him.
Defendants
Simmons
and
Ellis
also
They entered his cell, told him to
cooperate with handcuffing procedures, and then yanked his arms
through the port opening and beat his arms, hands, and wrist with
a metal object.
Ellis then verbalized a threat, stating "this is
what happens when you do not do what you are told to do."
Fourth
Amended Complaint at 8. When Plaintiff requested medical attention
on May 22, 2014 and May 23, 2014 and spoke with nurses, Plaintiff
was told he had been placed on a list to be evaluated by a doctor.
When Plaintiff had still not seen a doctor on June 10, 2014,
Defendant Ellis confronted Plaintiff about his asking to see a
doctor, and Ellis told Plaintiff it would be in his best interest
to stop writing grievances or things could get much worse.
Id. at
9.
Plaintiff references two retaliatory actions and three verbal
threats of retaliation.
The question remains as to whether these
events deterred Plaintiff from filing grievances. Plaintiff states
that Defendant Ellis's retaliatory actions of using excessive force
and threatening further abuse were successful in intimidating
Plaintiff to the point where he did not pursue exhaustion of his
17
administrative remedies although he did attempt to seek medical
help by requesting medical attention.
Response/Ellis at 11.
However, he stopped seeking medical attention when additional
threats were made.
The remaining question is whether the retaliation and threat
of retaliation is such that it would deter a reasonable inmate of
ordinary firmness and fortitude from pursuing his administrative
remedies by lodging grievances.
Plaintiff references several
retaliatory acts and verbal threats which he claims served to
intimidate him.
He particularly relies on the factual allegation
that he was beaten by Defendants Simmons and Ellis and was told by
Ellis that this was done because Plaintiff did not do what he was
supposed to do, and that, later on, he was verbally threatened by
Defendant Ellis not to grieve matters and seek medical attention.5
The Court concludes that Plaintiff does claim that "a serious
threat of substantial retaliation was made or, moreover, that any
threat was made in the present context."
828.
Cole, 451 F. App'x at
To counter Defendants' assertion that Plaintiff failed to
exhaust
his
administrative
remedies,
Plaintiff
claims
he
was
intimidated into not pursuing formal grievances and retaliated
against for attempting to pursue administrative relief or question
his conditions of confinement in HS.
5
See Kaba v. Stepp, 458 F.3d
Also of note, Plaintiff apparently did not receive timely
medical attention by a doctor even though the nurses said they had
referred Plaintiff to a doctor for his swollen wrist.
18
678, 686-87 (7th Cir. 2006) (asserting the administrative process
"became actually unavailable" at some point before or after the
attack in Kaba's cell).
Under these circumstances, the Court concludes that Defendant
Ellis' Motion to Dismiss for failure to exhaust administrative
remedies, a matter in abatement, is due to be denied as questions
remain
"about
the
availability
of
the
grievance
system"
for
Plaintiff due to alleged retaliatory acts and serious threats of
retaliation against Plaintiff.
IV.
See Kaba, 458 F.3d at 686.
Supervisory Liability
Defendants Gay (Classification Supervisor for FSP), Jones (the
Secretary of the FDOC), and McClellan (Assistant Warden of Programs
for FSP) assert that they must be dismissed. Defendants' Motion at
2.
These Defendants contend that the only factual allegation
raised against them is that Jones was put on notice by Plaintiff's
grievances.
Id. at 3.
Plaintiff
responsible
for
states
that
promulgating
he
names
and
Jones
because
implementing
FDOC
she
was
policies,
practices, procedures, or customs providing for the determination
of inmate classification and overall care of prisoners.
Amended
Complaint
defendant,
stating
at
4-5.
that
he
Plaintiff
is
names
responsible
Fourth
McClellan
for
ensuring
as
a
that
adequate policies, procedures, guidelines and regulations exist in
order to properly implement the administration of confinement,
19
outdoor recreation and contact visitation for death row prisoners
at FSP.
Id. at 5.
Finally, Plaintiff names Gay as a defendant,
asserting that as a Classification Supervisor, she is a member of
the Inmate Classification Team, a team that determines which
inmates will be eligible for visitation, selected for a particular
condition of confinement, and allowed to partake in recreation
periods or whether they will be restricted, and for how long they
will be restricted.
Id. at 5.
Of import, these Defendants are named in their individual and
official capacities.
Id. at 1.
Plaintiff alleges that Defendant
Jones was aware of the conditions and treatment of inmates confined
in HS status, but she continues "to encourage and approve these
conditions and treatment."
Id. at 9.
Plaintiff also alleges that
these Defendants have not provided Plaintiff "with any meaningful
justification
privileges
and
confinement[.]"
or
other
explanation
confinement
Id.
in
this
for
new
the
form
deprivation
of
of
disciplinary
Id. at 9-10.
In Count I, Plaintiff alleges that these Defendants knew or
should have known about the conditions Plaintiff has been subjected
to under HS.
Id. at 10.
Plaintiff also contends that these
Defendants knew that Plaintiff made positive adjustment to death
row confinement, not incurring any serious disciplinary reports.
Id.
Finally, Plaintiff states that these Defendants "have failed
20
to remove or instruct others to remove Plaintiff Hall from HS." Id.
In Count II, Plaintiff contends the Defendants have failed to
provide periodic review of Plaintiff's HS status and they are the
persons responsible for promulgating and implementing policies,
practices, procedures, or customs for providing the determination
of inmate classification and the overall care of inmates.
11.
Id. at
Finally, Plaintiff states these Defendants promulgated or
implemented a policy, practice, or custom of placing Plaintiff on
HS, a disciplinary-type confinement, without affording Plaintiff
the minimum requirements of procedural due process.
In
Count
III,
Plaintiff
alleges
that
Id. at 11-12.
these
Defendants
persistently failed to provide periodic review of Plaintiff's
visitation rights, and failed to provide Plaintiff with any reason
for disallowing contact visits.
Id. at 12.
Again, Plaintiff
states that these Defendants were responsible for promulgating and
implementing the policies, practices, procedures, or customs with
regard
to
inmate
Additionally,
classification
Plaintiff
alleges
and
that
inmate
they
care.
Id.
promulgated
or
implemented a policy, practice, or custom of depriving Plaintiff of
his limited liberty interest in visitation rights without providing
minimum process.
In
Count
Id. at 13.
IV,
Plaintiff
asserts
that
he
faces
continued
restriction of his terms of confinement and outdoor recreational
privileges at FSP, and these Defendants are named because Plaintiff
21
is seeking a declaratory judgment stating that the policies,
practices and customs are unlawful and Defendants actions should be
enjoined.
Id.
Under his prayer for relief, Plaintiff seeks an injunction
requiring that he be permitted the same confinement, contact
visitation and outdoor recreational privileges as other similarly
situated prisoners, and monetary damages.
Id. at 14.
He also
seeks any equitable relief deemed just and proper, reasonable
attorneys' fees, costs, and litigation expenses.
Id.
There is a 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
1152, 1158 (11th Cir. 2005) (quotation
omitted). This standard is quite rigorous. Id.
Smith v. LePage, 834 F.3d 1285, 1298 (11th Cir. 2016).
Plaintiff
states that Defendant Gay personally participated in constitutional
violations as a team member.
Also, Plaintiff claims supervisory
22
liability on the part of Gay, Jones, and McClellan.
Keeping in
mind this strict limitation on supervisory liability, the Court
recognizes that the Defendants may not be held liable under a
theory of respondeat superior.
&
Emp't
Sec.,
133
F.3d
797,
See Braddy v. Fla. Dep't of Labor
801
(11th
Cir.
1998)
(finding
supervisory liability requires something more than stating a claim
of liability under a theory of respondeat superior).
Plaintiff, in the Fourth Amended Complaint, contends that
there is a causal connection between the Defendants' actions or
inactions and the alleged federal constitutional deprivation.
The
question is whether Plaintiff has pled "enough facts to state a
claim to relief that is plausible on its face."
at 570.
Twombly, 550 U.S.
In order to make this determination, there are several
factors to be considered.
First, "[a] policy is a decision that is officially adopted by
the [government entity], or created by an official of such rank
that he or she could be said to be acting on behalf of the
[government entity]."
Sewell v. Town of Lake Hamilton, 117 F.3d
488, 489 (11th Cir. 1997) (citation omitted), cert. denied, 522
U.S. 1075 (1998).
Liability arises under § 1983 only where "'a
deliberate choice to follow a course of action is made from among
various alternatives'" by governmental policymakers."
City of
Canton v. Harris, 489 U.S. 378, 389 (1989) (quoting Pembaur v. City
of Cincinnati, 475 U.S. 469, 483-84 (1986)).
23
A supervisor/policymaker might officially adopt a policy that
permits a particular constitutional violation, or, is some cases,
a plaintiff may demonstrate that there is a custom or practice of
permitting a constitutional violation.
See Grech v. Clayton Cty.,
Ga., 335 F.3d 1326, 1330 (11th Cir. 2003); McDowell v. Brown, 392
F.3d 1283, 1289 (11th Cir. 2004).
A custom is an act "that has not
been formally approved by an appropriate decisionmaker," but that
is "so widespread as to have the force of law."
Bd. of Cty.
Comm'rs of Bryan Cty., Okla. v. Brown, 520 U.S. 397, 404 (1997)
(citation omitted).
The Eleventh Circuit defines "custom" as "a
practice that is so settled and permanent that it takes on the
force of law" or a "persistent and wide-spread practice."
117 F.3d at 489.
Sewell,
In order to establish liability, there must be a
direct causal link between the policy or custom and the alleged
constitutional
Citronelle,
deprivation.
420
F.3d
1262,
Snow
1271
ex
(11th
rel.
Cir.
Snow
v.
2005)
City
of
(quotation
omitted).
Second,
a
question
arises
as
to
whether
Plaintiff
has
sufficiently alleged a causal connection between the actions of
these Defendants
and the alleged constitutional deprivation.
Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999).
necessary
causal
connection
can
be
established
if:
(1)
A
the
supervisor knew about and failed to correct a widespread history of
abuse; or (2) the supervisor's custom or policy resulted in a
24
constitutional violation; or (3a) the supervisor directed the
subordinate to act unlawfully; or (3b) the supervisor knew that the
subordinate would act unlawfully and failed to stop him from acting
unlawfully.
Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir.
2014); Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003).
But, "[t]he standard by which a supervisor is held liable in [his]
individual capacity for the actions of a subordinate is extremely
rigorous."
Id. at 1360-61 (internal quotation marks omitted and
citation omitted).
Plaintiff contends that Defendants Jones, Gay, and McClellan
implemented a policy or custom of placing Plaintiff on HS, a
disciplinary-type confinement, without affording him the minimum
requirements of procedural due process; the Defendants knew or
should have known about the conditions Plaintiff has been subjected
to under HS and they failed to remove or instruct others to remove
him from HS; and the Defendants were responsible for promulgating
and implementing the policies, practices, procedures, or customs
with regard to inmate classification and inmate care, and they
promulgated
or
implemented
a
policy,
practice,
or
custom
of
depriving Plaintiff of his limited liberty interest in visitation
rights without providing minimum process.
It
is
important
to
recognize
that
"[a]
policy
may
be
deliberately indifferent if it is facially unconstitutional or
where the policy is implemented 'with deliberate indifference as to
25
its known or obvious consequences.'" Fields v. Corizon Health,
Inc., 490 F. App'x 174, 182 (11th Cir. 2012) (per curiam) (quoting
McDowell,
392
F.3d
at
1291).
Here,
Plaintiff
alleges
that
Defendants adopted policies, practices, or customs that subjected
him to unconstitutional conditions of confinement and deprived him
of his liberty interests.
The Eleventh Circuit has provided guidance for this Court's
review:
We do not recognize vicarious liability,
including respondeat superior, in § 1983
actions. Cottone, 326 F.3d at 1360. In order
to establish that a defendant committed a
constitutional violation in his supervisory
capacity, a plaintiff must show that the
defendant instituted a "custom or policy
[that] result[s] in deliberate indifference to
constitutional rights or ... directed [his]
subordinates to act unlawfully or knew that
the subordinates would act unlawfully and
failed to stop them from doing so." West v.
Tillman,
496
F.3d
1321,
1328-29
(11th
Cir.2007) (per curiam) (first and second
alterations in original) (internal quotation
marks omitted) (quoting Cottone, 326 F.3d at
1360).
As we have explained, "[a] policy is a
decision that is officially adopted by the
municipality, or created by an official of
such rank that he or she could be said to be
acting on behalf of the municipality." Sewell
v. Town of Lake Hamilton, 117 F.3d 488, 489
(11th Cir. 1997). A custom is an unwritten
practice that is applied consistently enough
to have the same effect as a policy with the
force of law. City of St. Louis v. Praprotnik,
485 U.S. 112, 127, 108 S.Ct. 915, 926, 99
L.Ed.2d 107 (1988). Demonstrating a policy or
custom requires "show[ing] a persistent and
wide-spread practice." Depew v. City of St.
26
Mary's, Ga., 787 F.2d 1496, 1499 (11th Cir.
1986).
Goebert v. Lee Cty., 510 F.3d 1312, 1331–32 (11th Cir. 2007).
McClellan, an assistant warden, as well as each warden of FSP,
is "charged with directing the governance, discipline, and policy
of the prison and enforcing its orders, rules, and regulations[.]"
Mathews v. Crosby, 480 F.3d 1265, 1275 (11th Cir. 2007), cert.
denied, 552 U.S. 1095 (2008). Jones, the Secretary, is the head of
the corrections institution, and she is charged with setting
Department policy.
Supervisor
and
a
See id. at 1275-76.
member
of
the
Gay, the Classification
Inmate
Classification
Team,
allegedly determines which inmates will be eligible for visitation,
selected for a particular condition of confinement, and allowed to
partake in recreation periods or whether they will be restricted,
and for how long they will be restricted.
Thus, in this case,
Defendants Jones, McClellan and Gay could face liability under
section 1983 predicated on a showing of the adoption of customs or
policies deliberately indifferent to a substantial risk of serious
harm and/or in violation of a protected liberty interest, and
Defendant Gay could face liability under section 1983 predicated on
a showing that she, as the Classification Supervisor and team
member, personally participated in the acts that comprise the
constitutional violations.
Plaintiff
has
pled
enough
facts
in
the
Fourth
Amended
Complaint to state a claim to relief that is plausible on its face
27
against Defendants Jones, Gay, and McClellan.
He has set forth
sufficient allegations supporting his contention that there is a
causal connection between the Defendants' actions or inactions and
the alleged federal constitutional deprivations.
Therefore, the
Defendants' Motion is not due to be granted in this regard.
V.
Eighth Amendment Violation
Respondents assert that Plaintiff's conditions of confinement
with regard to housing status, visitation, and recreation did not
violate his Eighth Amendment rights.
Defendants' Motion at 5-8.
Defendants assert that Plaintiff's description of his conditions of
confinement do not demonstrate an infliction of pain "without any
penological purpose" or an "unquestioned and serious deprivation of
basic human needs" such as medical care, exercise, food, warmth,
clothing, shelter, or safety. Rhodes v. Chapman, 452 U.S. 337, 347
(1981).
Eighth
They also refer to the two-part analysis governing an
Amendment
challenge
Defendants' Motion at 6-8.
to
conditions
of
confinement.
In doing so, Defendants rely on the
guidance provided by the Eleventh Circuit in Chandler v. Crosby,
379 F.3d 1278, 1288-89 (11th Cir. 2004).
In
Chandler,
the
Eleventh
Defendants' Motion at 5.
Circuit
addressed
conditions complaint and said:
The Eighth Amendment to the United States
Constitution states: "Excessive bail shall not
be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted." The
"cruel and unusual punishments" standard
applies to the conditions of a prisoner's
28
a
prison
confinement. Rhodes v. Chapman, 452 U.S. 337,
345-46, 101 S.Ct. 2392, 2398-99, 69 L.Ed.2d 59
(1981).
While "the primary concern of the
drafters was to proscribe tortures and other
barbarous methods of punishment," the Supreme
Court's "more recent cases [show that] [t]he
[Eighth]
Amendment
embodies
broad
and
idealistic concepts of dignity, civilized
standards, humanity, and decency." Estelle v.
Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 290,
50 L.Ed.2d 251 (1976) (marks, citations, and
brackets omitted). "No static test can exist
by which courts determine whether conditions
of confinement are cruel and unusual, for the
Eighth Amendment must draw its meaning from
the evolving standards of decency that mark
the progress of a maturing society." Rhodes,
452 U.S. at 346, 101 S.Ct. at 2399 (marks and
citation omitted).
Even so, "the Constitution does not
mandate comfortable prisons." Id. at 349, 101
S.Ct. at 2400.
If prison conditions are
merely "restrictive and even harsh, they are
part of the penalty that criminal offenders
pay for their offenses against society." Id.
at 347, 101 S.Ct. at 2399.
Generally
speaking, prison conditions rise to the level
of an Eighth Amendment violation only when
they "involve the wanton and unnecessary
infliction of pain." Id.
Chandler, 379 F.3d at 1288-89 (footnote omitted).
Plaintiff is an inmate confined at FSP, a high security
institution.
He is confined on death row.
In order to establish
an Eighth Amendment conditions of confinement claim, he must
demonstrate that a prison official was deliberately indifferent to
a substantial risk of serious harm to him.
Bennett v. Chitwood,
519 F. App'x 569, 573 (11th Cir. 2013) (per curiam) (citing Farmer
v. Brennan, 511 U.S. 825, 832–33 (1994)). To make this showing, he
29
must meet both the objective and subjective components to the
deliberate-indifference test.
Id. (citing Farmer, 511 U.S. at
834).
To satisfy the objective, "substantial
risk of serious harm" component, a plaintiff
"must
show
a
deprivation
that
is,
'objectively, sufficiently serious,' which
means that the defendants' actions resulted in
the denial of the minimal civilized measure of
life's necessities." Cottrell v. Caldwell, 85
F.3d 1480, 1491 (11th Cir. 1996).
"The
challenged condition must be 'extreme'": the
prisoner must show that "society considers the
risk that the prisoner complains of to be so
grave that it violates contemporary standards
of decency to expose anyone unwillingly to
such a risk." Chandler v. Crosby, 379 F.3d
1278, 1289 (11th Cir. 2004). In evaluating an
Eighth Amendment claim, we consider both the
"severity"
and
the
"duration"
of
the
prisoner's exposure to extreme temperatures.
Merely showing that prison
Id. at 1295.
conditions are uncomfortable is not enough.
Id. at 1289.
For the subjective component, the prison
official must (1) have subjective knowledge of
the risk of serious harm, and (2) nevertheless
fail to respond reasonably to the risk.
Farmer, 511 U.S. at 837, 114 S.Ct. at 1979.
Subjective knowledge on the part of the prison
official requires that the official was aware
of the facts "from which the inference could
be drawn that a substantial risk of serious
harm exist[ed]," and that the official
actually drew that inference.
Burnette v.
Taylor, 533 F.3d 1325, 1330 (11th Cir. 2008).
A prison official must have a sufficiently
culpable state of mind to be deliberately
indifferent.
Carter v. Galloway, 352 F.3d
1346, 1349 (11th Cir. 2003). "[T]he evidence
must demonstrate that with knowledge of the
30
infirm conditions, the official knowingly or
recklessly declined to take actions that would
have improved the conditions."
Thomas v.
Bryant, 614 F.3d 1288, 1312 (11th Cir. 2010)
(alteration and quotation omitted). Mistakes
and even negligence on the part of prison
officials are not enough for a constitutional
violation. Crosby, 379 F.3d at 1289.
Id. at 574.
Defendants contend that Plaintiff fails to meet the objective
component
because
discomfort.
he
complains
about
Defendants' Motion at 7.
inconvenience
and
mere
Further, Defendants assert
that Plaintiff does not complain of a deprivation of any human
need.
Id.
Defendants contend that the allegations are not
sufficiently serious to implicate the Eighth Amendment.
Id. at 8.
With regard to the subjective component of the two-pronged
test, Defendants assert that Plaintiff has not demonstrated that
the Defendants had knowledge of these conditions, except Plaintiff
spoke
to
Warden
Palmer
about
his
non-contact
visitation
restriction, but this restriction is not sufficiently serious to
amount to an Eighth Amendment violation.
Id. at 8.
The conditions of Plaintiff's confinement should not inflict
unnecessary
pain
justification,"
suffering."
or
suffering,
resulting
"in
"totally
the
without
gratuitous
penological
infliction
Gregg v. Ga., 428 U.S. 153, 183 (1976).
of
Of import,
Eighth Amendment violations are not confined to that which would
have been considered to be cruel and unusual "by the framers."
31
Bass v. Perrin, 170 F.3d 1312, 1316 (11th Cir. 1999).
This Court
must look to the "contemporary standards of decency."
Wainwright, 477 U.S. 399, 406 (1986).
test."
Ford v.
Indeed, there is "no static
Chandler v. Baird, 926 F.2d 1057, 1064 (11th Cir. 1991)
(citation and internal quotation marks omitted).
The standard in
the prison context is whether the prison officials violate the
Eighth Amendment "through 'the unnecessary and wanton infliction of
pain.'" Bass, 170 F.3d at 1316 (quoting Whitley v. Albers, 475 U.S.
312, 319 (1986)).
Plaintiff complains that the prison officials have, through
their actions, subjected him to solitary confinement in his cell
almost
twenty-four
hours
a
day,
with
sporadic
out-of-cell
recreation, without human contact, except with prison officials.
Response
at
11.
Since
Plaintiff
must
exercise
in
a
cage,
segregated from the other death row inmates on the exercise yard,
he is not allowed human interaction when he does receive sporadic
outside exercise.
Also, his limited human interaction of contact
visits has also been taken away for many years, although he has
been allowed no-contact visitation. Of note, Plaintiff is confined
in a disciplinary-type cell, although he has not been convicted of
a disciplinary infraction, until just recently. Plaintiff has been
confined in this HS status for nearly seven years.
Id.
"Although solitary confinement, as a mode of punishment, is
not per se cruel and unusual, there are constitutional boundaries
32
to its use."
1974).6
It
Gates v. Collier, 501 F.2d 1291, 1304 (5th Cir.
is
important
to
recognize
that
when
solitary
confinement conditions become so severe, the value as a viable
prisoner disciplinary tool diminishes and the confinement becomes
cruel and unusual punishment.
Id.
In this case, Plaintiff claims he is being punished as he has
been confined in this severely restricted status for almost seven
years, although he has not committed a disciplinary infraction
while on death row to deserve such punishment.
It has been
recognized that in order to be an effective penological tool,
solitary confinement should be used sparingly, as a measure of last
resort to induce compliance with prison regulations, and solitary
confinement has passed muster under the Eighth Amendment when it is
shown that it is reserved for recalcitrant, incorrigible inmates,
and there is an institutional need to preserve order and prevent
chaos.
See Novak v. Beto, 320 F.Supp. 1206, 1212 (S.D. Texas
1970), aff'd in part, rev'd in part by Novak v. Beto, 453 F.2d 661,
671 (5th Cir. 1971).
It is also notable that solitary confinement
conditions have been condemned as violative of the Eighth Amendment
when they are unsanitary, degrading, and lengthy.
Id. at 1211-12.
Of course, prison authorities' decisions must be given great
weight when they are determining how best to operate a detention
6
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc), the Eleventh Circuit adopted as binding
precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.
33
facility, especially when the issue is internal security of a
maximum correctional institution like FSP.
Sheley v. Dugger, 833
F.2d 1420, 1423 (11th Cir. 1987) (per curiam).
The Supreme Court
has cautioned, however, that the length of solitary confinement and
extreme
isolation
should
constitutional standards.
not
be
ignored
when
addressing
Hutto v. Finney, 437 U.S. 678, 686
(1978); Rhodes v. Chapman, 452 U.S. 337, 346 (1981).
The question of physical and mental deterioration as the
result of alleged punitive and lengthy segregation is a serious one
and cannot be summarily dismissed.
Recently, justices of the
Supreme Court of the United States have questioned the human toll
wrought by years of solitary confinement and whether this type of
isolation can survive constitutional scrutiny. See Davis v. Ayala,
135 S.Ct. 2187, 2208-09 (2015) (Kennedy, J., concurring); Ruiz v.
Texas, 137 S.Ct. 1246, 1247 (2017) (Breyer, J., dissenting).
Indeed, courts have struggled with "the many issues solitary
confinement presents[,]" recognizing that solitary imposed as a
temporary state of confinement "is a useful or necessary means to
impose
discipline
and
to
protect
prison
employees
and
other
inmates[,]" while acknowledging that "[y]ears on end of near-total
isolation exact a terrible price."
Davis v. Ayala, 135 S.Ct. at
2210 (Kennedy, J., concurring).
It is important to note that an inmate may bring an Eighth
Amendment challenge to a condition that is currently impacting him,
34
or is "substantially likely to occur in the future – a substantial
risk of serious harm."
Braggs v. Dunn, No. 2:14cv601-MHT (WO),
2017 WL 2773833, at *10 (M.D. Ala. June 27, 2017) (addressing the
profound
impact
of
solitary
confinement
on
prisoners'
mental
health, particularly on those already deemed mentally ill).
Defendants
ask
this
Court
to
analyze
Plaintiff's
Eighth
Amendment claim using the deliberate indifference test, referencing
the objective and subjective components set forth in Farmer and
utilized in Chandler when this Court addressed Eighth Amendment
claims
regarding
heat
and
Institution in a bench trial.
ventilation
at
Union
Correctional
Of import, this case is not yet at
the trial state, nor is it even at the summary judgment stage.
On
the contrary, this case is before the Court on a motion to dismiss.
Therefore, the only question before the Court is whether the claims
have facial plausibility.
In order to state a claim under 42 U.S.C. § 1983, a plaintiff
must allege that (1) the defendant deprived him of a right secured
under the United States Constitution or federal law, 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) (per curiam) (citation omitted);
Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010) (per
curiam) (citations omitted).
35
Plaintiff has certainly "nudged [his] claims across the line
from conceivable to plausible[.]" Twombly, 550 U.S. at 570. He has
presented
allegations
sufficient
to
give
rise
to
an
Eighth
Amendment claim concerning the conditions of his confinement.
In
his Fourth Amended Complaint, Plaintiff has adequately presented a
claim
of
an
Eighth
Amendment
violation
without
penological
justification, subjecting Plaintiff to the unnecessary and wanton
infliction of pain.
More specifically, Plaintiff has adequately alleged that these
Defendants were aware that Plaintiff faced a substantial risk of
harm by being confined on HS solitary confinement status, with all
of its restrictions on human contact and exercise, for years on
end.
When conditions are so severe and are so lengthy, they
arguably lose there viability as a disciplinary or management tool.
Again, as previously noted, severe restrictions should be used
sparingly, as a last resort to induce compliance with the rules of
conduct and to prevent disorder and chaos.
Of note, Plaintiff states that he had contact visitation while
on death row for two years, apparently without incident, but noncontact visitation was abruptly implemented, without notice and
without any institutional infractions by the Plaintiff.
He has
been held in solitary confinement, with severe restrictions on
human contact for years on end, without disciplinary infractions on
his part or any participation in actions constituting disorder or
36
presenting chaos.
These factors certainly support a claim that
there is a serious toll on the mental health and well-being of
inmate confined in solitary for years-on-end, and a risk of serious
harm in the future as a consequence of being held on extreme
isolated confinement conditions for multiple years.
Plaintiff has
alleged enough facts to state a claim to relief that is plausible
on its face.
Defendants' argument would more properly be raised in a Rule
56 motion with supporting records, affidavits, and other relevant
documents.
Indeed, when the Defendants file their motions for
summary judgment, they are directed to state with particularity the
supporting evidentiary basis for granting summary disposition of
this case.
The Court need not scour the record and review all
evidentiary materials on file when reviewing a motion for summary
disposition; instead, the Court need ensure that the motion itself
is supported by the appropriate evidentiary materials.
Reese v.
Herbert, 527 F.3d 1253, 1269 (11th Cir. 2008) (citing United States
v. One Piece of Real Property Located at 5800 SW 74th Avenue,
Miami, Florida, 363 F.3d 1099, 1101-02 (11th Cir. 2004)).
VI.
Fourteenth Amendment Violation
Defendants, in their Motion, contend that Plaintiff has not
alleged sufficient facts demonstrating a violation of a protected
liberty interest in violation of his constitutional right to due
process of law. Defendants' Motion at 8. Plaintiff states that he
37
retains a limited liberty interest that is protected by the Due
Process
Clause
of
the
Fourteenth
Amendment;
"[a]dmittedly,
prisoners do not shed all constitutional rights at the prison
gate[.]"
Sandin v. Conner, 515 U.S. 472, 485 (1995) (citing Wolff
v. McDonnell, 418 U.S. 539, 555 (1974)).
The Supreme Court addressed the issue of what process the
Fourteenth Amendment requires to be afforded to inmates before
assigning them to a high security "Supermax" facility:
The Fourteenth Amendment's Due Process
Clause protects persons against deprivations
of life, liberty, or property; and those who
seek to invoke its procedural protection must
establish that one of these interests is at
stake. A liberty interest may arise from the
Constitution itself, by reason of guarantees
implicit in the word "liberty," see, e.g.,
Vitek v. Jones, 445 U.S. 480, 493-494, 100
S.Ct. 1254, 63 L.Ed.2d 552 (1980) (liberty
interest in avoiding involuntary psychiatric
treatment and transfer to mental institution),
or it may arise from an expectation or
interest created by state laws or policies,
see, e.g., Wolff v. McDonnell, 418 U.S. 539,
556-558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)
(liberty interest in avoiding withdrawal of
state-created system of good-time credits).
We have held that the Constitution itself
does not give rise to a liberty interest in
avoiding transfer to more adverse conditions
of confinement. Meachum v. Fano, 427 U.S. 215,
225, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) (no
liberty interest arising from Due Process
Clause
itself
in
transfer
from
low-to
maximum-security prison because "[c]onfinement
in any of the State's institutions is within
the normal limits or range of custody which
the conviction has authorized the State to
impose"). We have also held, however, that a
liberty interest in avoiding particular
38
conditions of confinement may arise from state
policies or regulations, subject to the
important limitations set forth in Sandin v.
Conner, 515 U.S. 472, 115 S.Ct. 2293, 132
L.Ed.2d 418 (1995).
Wilkinson v. Austin, 545 U.S. 209, 221–22 (2005).
As noted in Sandin, discipline in segregated confinement, for
a limited period of thirty days, does not "present the type of
atypical,
significant
deprivation
in
conceivably create a liberty interest."
Also
of
import,
segregation
in
mirrored
Sandin,
that
of
the
which
a
State
might
Sandin, 515 U.S. at 486.
conditions
administrative
protective custody with very minor exceptions.
of
disciplinary
segregation
Id.
and
Finally, even
general population inmates in that particular institution spent
significant amounts of time in lock-down.
Id.
Thus, there was no
"major disruption" in the inmate's environment when confined in
disciplinary segregation. Id. As a consequence, the Supreme Court
concluded that the prisoner did not have a protected liberty
interest, either based on the prison regulations or the Due Process
Clause itself, that would entitle the prisoner to the procedural
requirements set forth in Wolff, and the misconduct hearing was
sufficient for "[t]he regime to which he was subjected[.]" Sandin,
515 U.S. at 487.
In this regard, the Court looks to "the nature of those
conditions themselves 'in relation to the ordinary incidents of
prison life.'" Austin, 545 U.S. at 223 (quoting Sandin, 515 U.S. at
39
484).
In Austin, the Court concluded that the conditions in the
"Supermax" facility imposed "an atypical and significant hardship
under any plausible baseline[,]" id. at 223, noting that almost all
human contact is prohibited, lights are on 24-hours per day,
exercise takes place in a small indoor room, it is an indefinite
placement (with an initial 30-day review, and then annually) in a
Supermax facility, and the placement disqualifies the individual
from parole eligibility.
Id. at 223-24.
Of further import, the
conditions at the Supermax facility are more restrictive than death
Id. at 214.
row in Ohio prisons.
The
Supreme
Court
concluded
that,
in
combination,
these
conditions impose an atypical and significant hardship "within the
correctional context."
Id. at 224.
Thus, the Supreme Court found
there is a liberty interest in avoiding assignment to the Supermax
facility.
Id.
Here, Plaintiff alleges that he is confined on death row at a
maximum security institution, but he is also confined on HS status
on death row.
In this status, he is confined in a disciplinary-
type cell almost 24 hours per day; he receives sporadic out-of-cell
recreation in a cage, without human contact; unlike other death row
inmates, he is not allowed to receive contact visits; and this HS
status has continued for over six years.
Like the Supermax
facility
human
described
in
Austin,
almost
all
contact
is
prohibited on FSP's HS status and there is no finite placement on
40
this status, but rather, the status goes on for years, without real
hope for a lifting of the restricted confinement because it is
apparently
based
on
the
offense
for
which
the
inmate
is
incarcerated, not on the inmate's behavior once confined on death
row.
Three distinct factors are considered when considering a due
process claim of this nature:
First, the private interest that will be
affected by the official action; second, the
risk of an erroneous deprivation of such
interest through the procedures used, and the
probable value, if any, of additional or
substitute procedural safeguards; and finally,
the Government's interest, including the
function
involved
and
the
fiscal
and
administrative burdens that the additional or
substitute
procedural
requirement
would
entail. See, e.g., Goldberg v. Kelly, supra,
397 U.S., at 263-271, 90 S.Ct., at 1018-1022.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
This framework for
evaluation outlined in Mathews is reiterated in Austin, 545 U.S. at
224-25.
Plaintiff has described conditions which, taken together, may
impose an atypical and significant hardship within the corrections
context, that is, a liberty interest in avoiding being assigned to
HS status.
In his Fourth Amended Complaint, Plaintiff has alleged
enough facts to state a claim to relief that is plausible on its
face.
He has set forth sufficient factual matter to support the
conclusion that he has a liberty interest and could bear out a
claim of a Fourteenth Amendment violation against Defendants.
41
Plaintiff has pled "enough facts to state a claim to relief that is
plausible on its face."
Twombly, 550 U.S. at 570.
Therefore,
Defendants' Motion is due to be denied, and the parties will be
given an opportunity to further develop the facts.
VII.
Lack of Physical Injury
Defendants assert that Plaintiff cannot recover compensatory
and
punitive
damages
due
to
Defendants' Motion at 10 -13.
the
lack
of
physical
injury.
Plaintiff asserts, that in light of
his allegations of being confined on HS for over six years, he is
not barred from seeking compensatory or nominal damages.
at 18-19.
Response
It is important to note that Plaintiff is not seeking
punitive damages; therefore, that issue will not be addressed by
the Court.
Id. at 18.
Based on the allegations contained in the Fourth Amended
Complaint, Plaintiff has not suffered an injury sufficient to
withstand 42 U.S.C. § 1997e(e) with respect to Plaintiff's claim
for compensatory damages.
In Napier v. Preslicka, 314 F.3d 528,
531-32 (11th Cir. 2002), cert. denied, 540 U.S. 1112 (2004), the
Eleventh Circuit addressed the requirements of 1997e(e):
Subsection (e) of 42 U.S.C. § 1997e
states that "[n]o Federal civil action may be
brought by a prisoner confined in a jail,
prison, or other correctional facility, for
mental or emotional injury suffered while in
custody without a prior showing of physical
injury." This statute is intended to reduce
the number of frivolous cases filed by
imprisoned plaintiffs, who have little to lose
and excessive amounts of free time with which
42
to pursue their complaints.
See Harris v.
Garner, 216 F.3d 970, 976-79 (11th Cir. 2000)
(en banc) (surveying the legislative history
of the PLRA). An action barred by § 1997e(e)
is barred only during the imprisonment of the
plaintiff; therefore, such action should be
dismissed without prejudice by the district
court, allowing the prisoner to bring his
claim once released and, presumably, once the
litigation cost-benefit balance is restored to
normal. Id. at 980.
Tracking the language of the statute, §
1997e(e) applies only to lawsuits involving
(1) Federal civil actions (2) brought by a
prisoner (3) for mental or emotional injury
(4) suffered while in custody. In Harris, we
decided that the phrase "Federal civil action"
means
all
federal
claims,
including
constitutional claims. 216 F.3d at 984-85.
Upon review, Plaintiff is bringing a federal civil action, he
is a prisoner, and he is seeking compensatory and nominal damages.
Plaintiff
mentions
Complaint.
no
physical
injury
in
the
Fourth
Amended
Plaintiff does not refer to persistent pain or other
symptoms. See Thompson v. Sec'y, Fla. Dep't of Corr., 551 F. App'x
555, 557 (11th Cir. 2014) (per curiam) (discussing the de minimis
threshold for injury).
"While
compensatory
§
1997e(e)
or
punitive
precludes
damages
a
prisoner
without
a
from
prior
seeking
showing
of
physical injury, it does not preclude a prisoner from seeking
nominal damages."
Hale v. Sec'y for Dep't of Corr., 345 F. App'x
489, 492 (11th Cir. 2009) (per curiam) (citing Smith v. Allen, 502
F.3d 1255, 1271 (11th Cir. 2007)).
specifically requests nominal damages.
43
In this case, Plaintiff
Accordingly, Defendants' Motion is granted to the extent that
Plaintiff's
claim
for
compensatory
damages
will
be
dismissed
against Defendants Jones, Gay, McClellan, and Palmer. See Kirkland
v. Everglades Corr. Inst., No. 2014 WL 1333212, at * 6 (Mar. 31,
2014) (Not Reported in F.Supp.2d) (finding the only recoverable
damages are nominal damages).
Thus, any claim for nominal damages
remains.
VIII.
Eleventh Amendment Immunity
Defendants Jones, Gay, McClellan, and Palmer raise the defense
of sovereign immunity to the extent Plaintiff is seeking monetary
damages against them in their official capacities.
Motion at 13-14.
Defendants'
To the extent Plaintiff is seeking monetary
damages against the Defendants in their official capacities, the
motion to dismiss is due to be granted. An official capacity claim
for monetary damages is barred by sovereign immunity.
Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 97-102 (1984). Thus,
insofar as Plaintiff seeks monetary damages from the Defendants in
their
official
capacities,
the
Eleventh
Amendment
bars
suit.
Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986) (per
curiam).
Plaintiff, in his Response, states that he is seeking to
recover
damages
capacities.
against
the
Response at 19-20.
Defendants
in
their
individual
Plaintiff named the Defendants in
both their individual and official capacities in his Fourth Amended
44
Complaint.
As Plaintiff named the Defendants in their individual
capacities, the Defendants are not immune from suit for monetary
damages
under
the
Eleventh
Amendment
in
their
individual
capacities.
IX.
Qualified Immunity
In a recent opinion, the Eleventh Circuit addressed the denial
of a motion to dismiss asserting qualified immunity, an immunity
not only from liability but also from suit.
F.3d 843, 849 (11th Cir. 2017).
Jones v. Fransen, 857
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
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
45
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).
Jones v. Fransen, 857 F.3d at 850–51.
46
Defendants Jones, Gay, McClellan, and Palmer contend they are
immune from suit, claiming qualified immunity.
Defendants' Motion
at 14-16. Under the doctrine of qualified immunity, Defendants may
claim they are entitled to qualified immunity from monetary damages
in their individual capacities.
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.
Upon review of the Fourth Amended Complaint, Plaintiff has
presented sufficient allegations to present Eighth and Fourteenth
Amendment claims that withstand Defendants' Motion to Dismiss, and
the constitutional rights at issue were clearly established. Given
the undersigned's conclusion that the Defendants' motion should be
denied as to the Eighth and Fourteenth Amendment claims,7 and based
on the state of the law on qualified immunity in the Eleventh
Circuit, qualified immunity should be denied as to Defendants
Jones, Gay, McClellan, and Palmer.
X.
Motion to Sever
7
See Gates, 501 F.2d 1291; Rhodes, 452 U.S. 337; Hutto, 437
U.S. 678; Bass, 170 F.3d 1312; Chandler v. Baird, 926 F.2d 1057;
Sheley, 833 F.2d 1420; and Novak, 453 F.2d 661 with regard to the
Eighth Amendment claims, and Austin, 545 U.S. 209 (relying on
Sandin); Sandin, 515 U.S. 472; Wolff, 418 U.S. 539; and Bass with
respect to the Fourteenth Amendment claims.
47
Defendants move to sever the claims against Defendants Ellis
and Simmons from this action.
Defendants' Motion at 16-20.
According to Rule 20 of the Federal Rules of Civil Procedure
concerning the permissive joinder of parties, two prerequisites for
joinder must be met: (1) a right to relief arising out of the same
transaction
or
occurrence,
or
series
of
transactions
or
occurrences, and (2) some question of law or fact common to all
defendants will arise in the action.
Malibu Media, LLC v. Does 1-
28, 295 F.R.D. 527, 531 (M.D. Fla. Dec. 6, 2012).
In this regard, joinder is strongly encouraged, and the
joinder rules should be construed generously and broadly.
530 (citation omitted).
Id. at
This Court has broad discretion to join
parties or not, and when assessing the requirements of Rule 20, the
factual allegations raised in the complaint must be accepted as
true.
Id. at 531.
Courts of this Circuit use the "logical relationship" test
when determining whether the right to relief arises out of the same
transaction
or
occurrences.
Id.
occurrence,
or
series
of
transactions
or
This is a "loose" standard, permitting "a broad
realistic interpretation in the interest of avoiding a multiplicity
of suits."
Id. (quoting Plant v. Blazer Fin. Servs., Inc., 598
F.2d 1357, 1361 (5th Cir. 1979)).
As such, this Court should
inquire as to whether the same operative facts serve as the basis
of both claims.
Id. (quotation omitted).
48
In this case, there are common operative facts, logically
related and directly linked to Plaintiff's complaints about the
conditions
of
his
confinement,
and
ultimately
resulting
retaliatory actions taken by Defendants Simmons and Ellis.
in
As a
result, "the common operative facts alleged are sufficient to
support joinder."
Id. at 532.
There is demonstrated connectivity
between the actions of the corrections supervisors in allegedly
adopting a custom or policy of placing an inmate in extreme
solitary confinement conditions, the actual placement of Plaintiff
on
HS,
Plaintiff's
lengthy
and
continued
detention
in
the
restrictive conditions of HS, and the alleged retaliatory actions
taken by Defendants Ellis and Simmons.
Upon
review
of
the
Fourth
Amended
Complaint,
the
Court
concludes that Plaintiff has sufficiently alleged questions of law
and fact common to all Defendants.
Plaintiff alleges that the
actions of Ellis and Simmons were undertaken in retaliation for
Plaintiff's submission of grievances regarding the conditions of
his
confinement.
Plaintiff
argues
for
joinder,
stating
his
complaints about his conditions on HS served as the impetus for
Defendants' excessive use of force against Plaintiff on May 21,
2014,
and
Ellis'
verbal
threat
to
further
retaliate
against
Plaintiff.
Rule 18 provides that a party asserting a claim may join as
many claims as he has against an opposing party.
49
Rule 18(a), Fed.
R. Civ. P.
Once Rule 20 is satisfied, "Rule 18(a) of the Federal
Rules of Civil Procedure grants the plaintiffs complete freedom to
join in a single action all claims that they may have against any
of the defendants. 6 C. Wright & A. Miller, Federal Practice and
Procedure s 1582 (1971)."
In re Beef Indus. Antitrust Litig., MDL
Dkt. No. 248, 600 F.2d 1148, 1168 (5th Cir. 1979).
In light of the above, Defendants' Motion to Sever will be
denied.
to
Therefore, Defendants' request that Plaintiff be required
file
a
Fifth
Amended
Complaint
excluding
his
claims
and
allegations against Ellis and Simmons is denied.
Accordingly, it is now
ORDERED:
1. Defendants' Motion to Dismiss and/or Sever (Doc. 35) is
GRANTED as to Plaintiff's claim for compensatory damages, but
denied with respect to Plaintiff's claim for nominal damages;
GRANTED as to any claim for monetary relief against Defendants
Jones, Gay, McClellan, and Palmer in their official capacities; and
DENIED in all other respects.
2.
Defendant Ellis' Motion to Dismiss (Doc. 51) is DENIED.
3.
Defendants Jones, Gay, McClellan, Palmer, and Ellis shall
respond to the Fourth Amended Complaint by November 30, 2017.
4.
proof
of
The Court notes that there is a sealed notice of USM-285
service
as
to
Defendant
Amanda
Maddox
executed
on
September 16, 2016 (Doc. 37; S-37) and a sealed notice of USM-285
50
proof of service as to Lance Simmons executed on October 12, 2016
(Doc. 42; S-42).
Neither Defendant has responded to the Fourth
Amended Complaint and the Office of the Attorney General has not
responded on their behalf or entered a notice of appearance. Erich
Messenger, Assistant Attorney General, shall notify the Court if he
is going to represent Defendants Maddox and Simmons by November 9,
2017.
If he is not, he should notify the Court whether Defendants
Maddox and Simmons intend to proceed pro se or if counsel has no
knowledge of their intentions.
DONE AND ORDERED at Jacksonville, Florida, this 20th day of
October, 2017.
sa 10/16
c:
Counsel of Record
51
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