Gipson v. Renninger et al
Filing
94
ORDER granting 68 Motion for summary judgment, with instructions to the Clerk. Signed by Judge Brian J. Davis on 9/18/2017. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JERALD GIPSON,
Plaintiff,
vs.
Case No. 3:15-cv-827-J-39PDB
K. RENNINGER AND LT.
J. GREENE,
Defendants.
ORDER
I.
Status
Plaintiff is an inmate confined in the Florida penal system.
He is proceeding pro se on a Third Amended Complaint (Third Amended
Complaint) (Doc. 58) pursuant to 42 U.S.C. § 1983.
He filed his
original Complaint (Doc. 1) on June 30, 2015, pursuant to the
mailbox rule. This cause is before the Court on Defendants' Motion
for Summary Judgment (Motion) (Doc. 68).1
Plaintiff responded.
Plaintiff's Response to Defendants' Motion for Summary Judgment
(Response) (Doc. 85).
See Order (Doc. 9); Notice (Doc. 69).
The
Court granted Plaintiff's motion to supplement his response, Order
(Doc. 89), and the Court will consider the exhibits attached to the
Supplement (Doc. 86).
1
In this opinion, the Court references the document and page
numbers designated by the electronic filing system.
II.
Summary Judgment Standard
"Summary judgment is appropriate only if 'the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.'"
Moton v.
Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011) (quoting Fed. R. Civ.
P. 56(a)).
"If the moving party meets this burden, 'the nonmoving
party must present evidence beyond the pleadings showing that a
reasonable jury could find in its favor.'" Ekokotu v. Federal Exp.
Corp., 408 F. App'x 331, 333 (11th Cir.) (per curiam) (quoting
Fickling v. United States, 507 F.3d 1302, 1304 (11th Cir. 2007)),
cert. denied, 565 U.S. 944 (2011).
III.
The Third Amended Complaint
The alleged facts supporting the Third Amended Complaint are
set forth at pages 10-18.
Although difficult to read, the Court
liberally construes the Third Amended Complaint as presenting the
following facts.
Plaintiff states that on May 29, 2015, he was
confined in a cell as an inpatient transitional care unit inmate at
Suwannee
Correctional
Institution
(SCI).
Id.
at
10.
At
approximately 12:45 a.m., Defendant Renninger did a security check
of the dormitory and came by Plaintiff's cell.
Id. at 11.
Plaintiff told Defendant Renninger that he had a serious injuries
from a previous beating, causing him to blank out, suffer severe
pain, and to have headaches.
Id.
Plaintiff also told Defendant
Renninger that he felt he would have a heart attack from physical
2
and emotional stress caused by his treatment in prison.
Id.
Plaintiff claimed to have a heart murmur and a hole in his heart.
Id.
Defendant Renninger told Plaintiff to get off of the door and
threatened
Plaintiff
through
denial
of
medical
care.
Id.
Plaintiff alleges that he asked Renninger to call the nurse because
Plaintiff was declaring a medical emergency due to sharp, severe
chest pains and blanking out, but Renninger "neglected" Plaintiff's
medical emergency.
Id. at 12.
Defendant Renninger and Nurse Handcocks [sic] came by during
her rounds, and Plaintiff told them he was declaring a medical
emergency.
Id.
Nurse Handcocks and Renninger did not accept
Plaintiff's declaration of a medical emergency, stating that if an
inmate is not bleeding or cutting himself, it is not a medical
emergency.
Id.
Plaintiff was placed on property restriction and told to strip
down to his boxers and pack up his property.
Id. at 13.
mattress, sheets, and blanket and were stored away.
Id.
His
Thirty
minutes later, Defendants Greene and Renninger came by and told
Plaintiff if he called out for another medical emergency, Plaintiff
would not eat for a week, and if he wrote a grievance or lawsuit
against them, Defendants would break Plaintiff's jaw and send him
to the hospital.
Id.
After being denied a medial emergency by the Defendants and
the nurse, Plaintiff feared that he would have a heart attack from
3
the physical and emotional stress caused by his treatment in
prison.
Id. at 14.
At approximately 3:00 p.m., Defendant Greene
saw Plaintiff naked in his cell.
Defendant Greene made verbal
sexual comments about Plaintiff's body parts.
Id.
Plaintiff
continued to have pain and headaches, feeling like he was blanking
out.
Id.
He slept on the hard concrete bunk in temperatures below
50 degrees.
Id.
Plaintiff states he did not violate any Florida Department of
Corrections' (FDOC) rules. Id. at 15. Plaintiff contends that his
medical records will show that he has severe heart problems of an
enlarged heart, a heart murmur, and a hole in his heart.
Id.
also states that the records will verify his head injuries.
He
Id.
Plaintiff contends that his medical condition was exacerbated by
delay and failure to provide urgent medical care.
IV.
Id.
Exhaustion of Administrative Remedies
Defendants assert that Plaintiff failed to properly avail
himself of the grievance process with regard to his claims.
Prison
Litigation
Reform
Act
(PLRA)
requires
exhaustion
The
of
available administrative remedies before a 42 U.S.C. § 1983 action
with respect to prison conditions by a prisoner may be initiated in
this Court.
Title 42 U.S.C. § 1997e(a) provides: "No action shall
be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined in any
4
jail,
prison
or
other
correctional
facility
until
such
administrative remedies as are available are exhausted."
In this regard, Defendants bear 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).
The Court has guidelines 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.
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).
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
5
court, but is mandatory.") (citation omitted).
The Supreme Court
has stated that "failure to exhaust is an affirmative defense under
the PLRA[.]"
Jones, 549 U.S. at 216.
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, 679 F.
App'x 819, 823 (11th Cir. 2017) (per curiam) (citation omitted).
Also, the only recognized limitation is availability:
"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
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,
2
Ross v. Blake, 136 S.Ct. 1850 (2016).
6
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).
In reviewing 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."
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 2017 WL 1027035 (N.D. Fla. Mar. 16,
2017).
Therefore, the relevant question before this Court is whether
Plaintiff properly exhausted available administrative remedies as
of June 30, 2015.
The question of availability of the procedure
goes to whether the administrative procedure was available before
June 30, 2015, prior to the filing of the initial complaint.
Construing the exhaustion requirement otherwise would render the
PLRA "a toothless scheme."
Woodford, 548 U.S. at 95.
7
Not
only
is
there
an
exhaustion
requirement,
exhaustion requirement requires proper exhaustion."
"the
PLRA
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
issues on the merits)." Pozo,[3] 286 F.3d, at
1024. . . .
Id. at 90 (emphasis added).
In fact, "[p]roper exhaustion demands
compliance with an agency's deadlines and other critical procedural
rules."
Id.
The Court must now make findings on the disputed issues of
fact to decide whether administrative remedies were available to
Plaintiff at SCI, and if they were, whether he properly exhausted
his administrative remedies.
Since the parties have not requested
an evidentiary hearing on this issue and they have submitted
evidence for the Court's consideration, the Court proceeds to
resolve the material questions of fact based on the documents
before the Court.
Bryant, 530 F.3d 1377 n.16 (recognizing that a
district court may resolve material questions of fact on the
3
Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir.), cert. denied,
537 U.S. 949 (2002).
8
submitted papers when addressing the PLRA's exhaustion of remedies
requirement).
The Florida Department of Corrections (FDOC) provides an
internal
grievance
procedure.
See
Chapter
33-103,
Florida
Administrative Code (F.A.C.). Thus, to determine whether Plaintiff
exhausted his administrative remedies, this Court must examine the
relevant documents to determine whether the incidents in question
were grieved.
If these incidents were grieved and the documents
complied with the deadlines and other procedural rules as set forth
in the F.A.C., the issues raised therein are exhausted.
Generally, the FDOC provides a three-step grievance procedure.
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.
Kozuh v. Nichols, 185 F. App'x 874, 877 (11th Cir. 2006) (per
curiam), cert. denied, 549 U.S. 1222 (2007).
As a consequence, if Plaintiff filed a grievance and attempted
to exhaust his administrative remedies, he would have needed to
submit an initial grievance with the appropriate staff, a formal
grievance with the warden, and then an appeal to the Secretary to
properly grieve the matter in compliance with the procedural
9
requirements of the administrative grievance process.
Plaintiff,
however elected to file an "Emergency Grievance" with the Secretary
of the FDOC, but it was returned without action as being in noncompliance with the Rules. Defendants' Exhibit (Doc. 68-5 at 5-6).
Plaintiff
calling
it
retaliation.
a
labeled
his
protective
Id. at 6.
grievance
activity
an
emergency
seeking
grievance,
protection
against
He wrote: "I believe there will be some
adverse actions (retaliations) if the officers are placed on notice
at the institutional level."
Id.
The Response reads as follows:
NOTE: This grievance is not accepted as a
grievance of an emergency nature[.]
Your request for administrative appeal is in
non-compliance
with
the
Rules
of
the
Department of Corrections, Chapter 33-103,
Inmate Grievance Procedure. The rule requires
that you first submit your grievance at the
appropriate level at the institution.
You
have not done so or you have not provided this
office with a copy of that grievance, nor have
you provided a valid or acceptable reason for
not following the rules[.]
You have not provided any information
evidence
to
substantiate
your
fear
reprisal[.]
The
institution
should
be
given
opportunity to respond to your issue[.]
or
of
the
If you feel you need medical attention,
contact the institutional medical department
via the sick call/emergency process[.]
Based on the foregoing information,
grievance is returned without action[.]
Defendants' Exhibit (Doc. 68-5 at 5).
10
your
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[.]" Id. § 33-103.007(6)(a)(1)-(2).
In this instance, the reviewer found no valid reason within
the grievance for by-passing the lower levels and determined the
grievance to be in non-compliance with the rules.4
Id. § 33-
103.014(1)(f) ("[t]he inmate did not provide a valid reason for bypassing the previous levels of review as required or the reason
provided is not acceptable.").
Thus, the grievance was returned
without action.
4
The reviewer found Plaintiff did not provide any information
or evidence to support his claim of fear of reprisal, unlike the
inmate in Dimanche v. Brown, 783 F.3d 1204, 1212-13 (11th Cir.
2015) (an inmate must 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). Plaintiff simply stated he believed there would be
adverse actions by unnamed officers.
11
Given these facts, even assuming the grievance constituted an
attempt to exhaust administrative remedies with regard to the May
29, 2015 incident at SCI, Plaintiff failed to comply with critical
procedural rules to exhaust his available administrative remedies.
As such, there was not proper exhaustion.
Plaintiff has not demonstrated that he has exhausted his
administrative remedies with respect to his claims against the
Defendants.
otherwise.
In fact, the documents before the Court demonstrate
Plaintiff never properly grieved his claims and the
institutional records demonstrate that Plaintiff never properly and
completely grieved his claims by complying with the critical
procedural rules.
Upon review, the Court finds that the administrative process
was available to Plaintiff; it did not operate as a simple dead
end, it was clearly capable of use, and prison administrators did
not
thwart
the
use
misrepresentation,
or
of
the
process
intimidation.
through
Based
on
machination,
all
reasonable
inferences, Plaintiff had access to the grievance process and
submitted a document for review, although not in compliance with
the Rules. Indeed, Plaintiff's grievance was specifically rejected
for non-compliance with the administrative rules.
not
shown
that
he
properly
filed
a
grievance
Plaintiff has
against
these
Defendants concerning the events that occurred at SCI and fully
12
exhausted
his
administrative
remedies
in
compliance
with
the
procedural rules prior to bringing his civil rights action.
It is axiomatic that an inmate plaintiff is required to
exhaust available administrative remedies.
42 U.S.C. § 1997e(a).
Plaintiff has not provided the Court with copies of any grievances
or grievance responses or other information demonstrating proper
exhaustion of administrative remedies, using all steps that the
agency
holds
out,
and
doing
so
properly
addresses the issues on the merits.
so
that
the
agency
Plaintiff never gave the
institution an opportunity to respond to his issue by filing an
initial grievance with appropriate staff, a formal grievance with
the warden of SCI, and then an appeal to the Secretary.
did
not
comply
with
the
procedural
administrative grievance process.
requirements
Thus, he
of
the
The record evidence shows that
Plaintiff did not properly exhaust his administrative remedies with
regard to his claims concerning the events at SCI on May 29, 2015.
In conclusion, Plaintiff failed to exhaust his administrative
remedies
before
filing
a
lawsuit
to
seek
judicial
redress.
Therefore, the Court concludes the Defendants' Motion should be
granted for Plaintiff's failure to exhaust his administrative
remedies against the Defendants. According to the PLRA, exhaustion
of available administrative remedies is required before a 42 U.S.C.
§ 1983 action with respect to prison conditions by a prisoner may
13
be initiated in this Court, and Plaintiff failed to properly avail
himself of this process.
V.
Eleventh Amendment Immunity
Defendants raise the defense of sovereign immunity to the
extent Plaintiff is seeking monetary damages against them in their
official capacities.
Motion at 17.
Plaintiff plainly states that
he is suing the Defendants in their individual capacities, not
their official capacities.
Response at 3.
As such, he is not
seeking monetary damages against the Defendants in their official
capacities.
VI.
The Claims
In his Statement of Claim, Plaintiff references the Eighth
Amendment to the United States Constitution. He makes no reference
to any other amendments to the Constitution.
Plaintiff contends
that Defendants Renninger and Greene were deliberately indifferent
to his serious medical needs, and Defendant Greene violated his
Eighth Amendment rights through verbal sexual harassment.
Third
Amended Complaint at 9.
Plaintiff alleges that Defendant Greene made sexual comments
about Plaintiff's body.
Id. at 14.
As a result of this verbal
abuse, Plaintiff states he was subjected to some humiliation.
Defendants' Motion is due to be granted with respect to Plaintiff's
claim of verbal sexual harassment.
To the extent Plaintiff
attempts to raise a claim of retaliation in the body of the Third
14
Amended
Complaint,
Defendants'
Motion
is
due
to
be
granted.
Liberally construing the Statement of Facts in the pro se Third
Amended Complaint, Plaintiff alleges that the Defendants threatened
him with harm if Plaintiff wrote grievances or lawsuits against
them or declared more medical emergencies.
Id. at 13.
With respect to the alleged use of abusive language and verbal
threats,
such
allegations
constitutional dimension.
do
not
state
a
claim
of
federal
See Hernandez v. Fla. Dep't of Corr.,
281 F. App'x. 862, 866 (11th Cir. 2008) (per curiam) (citing
Edwards v. Gilbert, 867 F.2d 1271, 1274 n.1 (11th Cir. 1989))
("Hernandez's allegations of verbal abuse and threats by the prison
officers did not state a claim because the defendants never carried
out these threats[,] and verbal abuse alone is insufficient to
state a constitutional claim.").
"[M]ere threatening language and gestures of a
custodial office do not, even if true, amount
to constitutional violations."
Coyle v.
Hughes, 436 F.Supp. 591, 593 (W.D. Okl[a].
1977). "Were a prisoner . . . entitled to a
jury trial each time that he was threatened
with violence by a prison guard, even though
no injury resulted, the federal courts would
be more burdened than ever with trials of
prisoner suits . . . ." Bolden v. Mandel, 385
F.Supp. 761, 764 (D. Md. 1974). See Johnson
v. Glick, 481 F.2d 1028, 1033 n.7 (2d Cir.
1973) (the use of words, no matter how
violent, does not comprise a section 1983
violation).
McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.), cert. denied, 464
U.S. 998 (1983).
15
It is important to note that,
"The First Amendment forbids prison
officials from retaliating against prisoners
for exercising the right of free speech."
Farrow v. West, 320 F.3d 1235, 1248 (11th
Cir.2003). "It is an established principle of
constitutional
law
that
an
inmate
is
considered
to
be
exercising
his
First
Amendment right of freedom of speech when he
complains to the prison's administrators about
the conditions of his confinement." Smith v.
Mosley, 532 F.3d 1270, 1276 (11th Cir.2008)
(citing Farrow, 320 F.3d at 1248).
An inmate may maintain a cause of action
for retaliation under 42 U.S.C. § 1983 by
showing that a prison official's actions were
"the result of [the inmate's] having filed a
grievance concerning the conditions of his
imprisonment." Farrow, 320 F.3d at 1248
(quotation marks omitted and emphasis added).
To establish a First Amendment retaliation
claim, a prisoner need not allege the
violation of an additional separate and
distinct constitutional right; instead, the
core of the claim is that the prisoner is
being retaliated against for exercising his
right to free speech. Id. To prevail on a
retaliation claim, the inmate must establish
that: "(1) his speech was constitutionally
protected; (2) the inmate suffered adverse
action such that the [official's] allegedly
retaliatory conduct would likely deter a
person of ordinary firmness from engaging in
such speech; and (3) there is a causal
relationship between the retaliatory action
[the
disciplinary
punishment]
and
the
protected speech [the grievance]." Mosley, 532
F.3d at 1276.10
O'Bryant v. Finch, 637 F.3d 1207, 1212 (11th Cir. 2011) (per
curiam) (footnote omitted), cert. denied, 568 U.S. 949 (2012).
To the extent Plaintiff attempted to raise a First Amendment
retaliation claim in his Third Amended Complaint, Defendants'
16
Motion is due to be granted.
There is no mention made of the First
Amendment in the Third Amended Complaint, and Plaintiff completely
fails to flesh out a First Amendment retaliation claim, although
given sufficient opportunity to properly amend his complaint.
He
certainly does not maintain that he previously filed grievances
concerning the conditions of his confinement, and the Defendants'
actions were in response to those complaints.
Instead, he simply
states that the Defendants verbally threatened him in response to
Plaintiff's repeated demands for immediate attention.
His vague
and conclusory retaliation claim will certainly not withstand
Defendants' Motion.
See Williams v. Brown, 347 F. App'x 429, 435
(11th Cir. 2009) (per curiam) (retaliation claims that do not rise
above the speculation level will not survive).
To the extent Plaintiff is also attempting to raise an Eighth
Amendment claim concerning the conditions of his confinement,
Defendants' Motion is also due to be granted.
In his factual
allegations, Plaintiff states he was placed on property restriction
as a result of his disciplinary violation, and he was confined in
a
cold
cell
for
seventy-two
mattress, sheets and blanket.
hours
in
his
boxers,
without
Third Amended Complaint at 13.
With respect to Plaintiff's Eighth Amendment claim:
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
17
a
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 v. Crosby, 379 F.3d 1278, 1288-89 (11th Cir. 2004)
(footnote omitted).
To establish an Eighth Amendment conditions of confinement
claim,
a
plaintiff
must
show
that
a
prison
official
was
deliberately indifferent to a substantial risk of serious harm to
the inmate.
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)).
"The deliberate-indifference test has two elements,
18
consisting of an objective and a subjective component."
(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.
Id. at 1295.
Merely showing that prison
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
infirm conditions, the official knowingly or
19
Id.
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.
Bennett, 519 F. App'x at 574.
Here, with respect to the objective component of Plaintiff's
Eighth Amendment claim, Plaintiff does not present in his Complaint
the sort of extreme conditions that violate contemporary standards
of decency.
With respect to the subjective component, Plaintiff
was already confined in an inpatient transitional care unit.
The
circumstances of which Plaintiff complains do not reflect that he
was subjected to the type of extreme conditions that pose an
unreasonable risk of serious damage to his health or safety.
Of note, this incident happened in Florida in late spring, May
29, 2015.
Therefore, even if it were chilly, it was certainly not
a life-threatening or health-endangering situation.5
5
As noted by
Of import, SCI is located in Live Oak, Florida. The average
low temperature in Live Oak, Florida in May is 62 degrees, and the
average
high
is
89
degrees.
See
U.S.
Climate
Data,
http://www.usclimatedata.com. Although Plaintiff alleges that it
felt like 50 degrees in his cell and he had been told that the
prison thermostat was set at "40-something degrees[,]" Deposition
(Doc. 86-1 at 7), Plaintiff was confined indoors, in late spring,
in Florida.
The denial of bedding and comfort items and the
circumstances of which Plaintiff complains "do not reflect that he
was subject to the type of extreme conditions that posed an
unreasonable risk of serious damage to health or safety." Edler v.
Gielow, No. 3:08cv530/WS/EMT, 2010 WL 3958014, at *7 (N.D. Fla.
Oct. 7, 2010) (not reported in F.Supp.2d).
20
Defendants, Plaintiff was temporarily deprived of his property for
seventy-two hours, and the seizure of his property was a result of
a disciplinary violation and not unconstitutional.
Davis v. Crew,
No. 4:13-cv-504-MW/CAS, 2014 WL 961210, at *8 (N.D. Fla. Mar. 11,
2014). Plaintiff's discomfort for a few days does not amount to an
inhumane
condition
of
confinement
or
an
extreme
deprivation.
Farmer v. Brennan, 511 U.S. at 832.
An official must know of and disregard an excessive risk to an
inmate's health or safety, the official must be aware of facts from
which the inference could be drawn that a substantial risk of
serious harm exists, and the official must draw that inference.
Farmer v. Brennan, 511 U.S. at 837.
Here, Defendants did not
disregard an excessive risk to Plaintiff's health by placing him on
property restriction for seventy-two hours.
Defendants' Motion is
thus due to be granted in this respect.
Upon review of Plaintiff's Statement of Claim, it is clear
that the heart of the Third Amended Complaint is Plaintiff's
contention that the Defendants were deliberately indifferent to his
serious medical needs.
The requirements to establish an Eighth
Amendment claim with respect to medical care are:
The
Eighth
Amendment's
prohibition
against "cruel and unusual punishments"
protects
a
prisoner
from
"deliberate
indifference to serious medical needs."
Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct.
285, 50 L.Ed.2d 251 (1976). To state a claim
of
unconstitutionally
inadequate
medical
treatment, a prisoner must establish "an
21
objectively
serious
[medical]
need,
an
objectively insufficient response to that
need, subjective awareness of facts signaling
the need, and an actual inference of required
action from those facts."
Taylor v. Adams,
221 F.3d 1254, 1258 (11th Cir. 2000).
Kuhne v. Fla. Dep't of Corr., 745 F.3d 1091, 1094 (11th Cir. 2014).
"A serious medical need is 'one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that
even a lay person would easily recognize the necessity for a
doctor's attention.' In the alternative, a serious medical need is
determined by whether a delay in treating the need worsens the
condition."
Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1307 (11th
Cir. 2009) (quoting Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d
1176, 1187 (11th Cir. 1994)).
To satisfy the subjective component, a plaintiff must prove
the following:
"(1) subjective knowledge of a risk of serious
harm; (2) disregard of that risk; (3) by
conduct that is more than [gross] negligence."
Bozeman v. Orum, 422 F.3d 1265, 1272 (11th
Cir. 2005) (alteration in original) (internal
quotation marks omitted). Although we have
occasionally stated, in dicta, that a claim of
deliberate indifference requires proof of
"more than mere negligence," McElligott v.
Foley, 182 F.3d 1248, 1255 (11th Cir. 1999),
our earlier holding in Cottrell, 85 F.3d at
1490[6], made clear that, after Farmer v.
Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128
L.Ed.2d 811 (1994), a claim of deliberate
indifference requires proof of more than gross
negligence.
6
Cottrell v. Caldwell, 85 F.3d 1480 (11th Cir. 1996).
22
Townsend v. Jefferson County, 601 F.3d 1152, 1158 (11th Cir. 2010).
A plaintiff must demonstrate that a defendant's responses to
his medical needs were poor enough to constitute an unnecessary and
wanton infliction of pain, and not merely accidental inadequacy,
negligence in treatment, or even medical malpractice actionable
under state law.
Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir.
2000) (citing Estelle v. Gamble, 429 U.S. 97, 105-106 (1976)),
cert. denied, 531 U.S. 1077 (2001).
As such, Plaintiff must have
had
an
an
objectively
serious
need,
objectively
insufficient
response to that need, subjective awareness of facts signaling the
need and an actual inference of required action from the facts
presented.
Taylor v. Adams, 221 F.3d at 1258.
Firstly,
the
Court
is
not
convinced
that
Plaintiff
has
established an objectively serious medical need with regard to his
claimed heart condition and complaint of "blanking out."
Although
Plaintiff states that the medical records will show his serious
medical needs, that is not the case.
Dr. Albert Maier, in his
Declaration (Doc. 68-4 at 1), states there is "no organic basis'
for Plaintiff's complaints of chest pain.
have
hypothyroidism,
gastro,
Although Plaintiff does
esophageal
reflux
disease,
and
hypertension with dyslipidemia, these chronic conditions are not
the source of chest pain.
Id.
No medical documentation supports
Plaintiff's complaints of blanking out.
23
Id. at 2. "It should be
noted that the existing medical records reveal no evidence of heart
issues nor consciousness issues."
Id.
Indeed, the medical records do not show that Plaintiff made
these medical complaints (head and chest pains and blanking out)
while confined at SCI until 2016, after the filing of the original
civil rights Complaint in 2015.7
Id.
It is important to note that
Dr. Maier states that Plaintiff does have an extensive documented
history of mental health issues, for which he is under current
care.
Id.
Upon review of the medical records submitted by Plaintiff,
they do not support his claim of a serious heart condition.
In
fact, the medical records state there is no heart murmur/chest pain
and there is no reported dizziness or blurred vision with regard to
past and present medical history.
at 1).
Plaintiff's Exhibit (Doc. 86-2
The only reference to a "large heart" is per Plaintiff's
mother's statement to a medical provider back in 1996. Plaintiff's
Exhibit (Doc. 86-8 at 1).
Again, the complaints in the FDOC's
medical records of black outs and headaches are from 2016, not from
7
When Plaintiff complained about blacking out, dizziness and
his head hurting in 2016, the nurse opined that it may be caused by
low blood pressure issue, orthostatic hypotension (a substantial
drop in blood pressure when a person moves from a seated or supine
position to a standing position). Plaintiff's Exhibit (Doc. 86-16
at 1). When Plaintiff complained of head pain, he was given overthe-counter medication, Pain-Off, a pain reliever containing
Acetaminophen, Aspirin, and caffeine. Plaintiff's Exhibit (Doc.
68-10 at 3). See Medique, Pain-Off, https//www.mediqueproducts.com.
24
2015.8 Plaintiff's Exhibit (Doc. 86-16); Plaintiff's Exhibit (Doc.
86-17).
Even assuming Plaintiff had a serious medical need, the nurse,
the medical provider on the wing, saw Plaintiff and informed him
that his medical state did not constitute a medical emergency.
In
his Deposition, Plaintiff said that after he passed out and got
back up, Defendant Renninger and the nurse were passing by his
cell.
Deposition (Doc. 86-1 at 6).
Plaintiff told them he was
having chest pains and was blanking out.
Id.
Plaintiff described
his conversation with Nurse Hopkins when she came back on the wing:
I got to the door off the floor after
like a minute-and-a-half, and I was telling
the nurse, Nurse – Nurse Hopkins and Officer
Renninger [her escort], and they said, if
you're not cutting or bleeding, it's not no
medical emergency. You know, it's not - if
you're not cutting or bleeding, it's not no
medical emergency.
And I was telling them
that, you know, I - I have a severe medical
condition.
8
In his Deposition, Plaintiff claimed to have suffered a
blood clot on the brain in 1996, when he was thirteen years old.
Deposition (Doc. 86-1 at 3).
There are Psychiatric Admission
Notes, psychosocial comments on a Neurosurgical Intensive Care Unit
Assessment, Psychosocial Evaluation notes, the results of a Mental
Status Examination, notes concerning Tissue Perfusion AlterationCerebral, and Cognitive Exam results (Docs. 86-2 to 86-14). The
medical staff described Plaintiff as stable and rested, and
subsequently easily aroused, with no complaints of headache pain.
Plaintiff's Exhibit (Doc. 86-3 at 1). It was also noted that all
The level of
of his limbs moved with equal power.
Id.
consciousness is described as alert. Plaintiff's Exhibit (Doc. 869 at 1).
He was discharged to jail on September 18, 1996.
Plaintiff's Exhibits (Doc. 86-5 at 1) & (Doc. 86-6 at 1).
25
Id.
Plaintiff attested that the nurse came by again with Defendant
Renninger around 3:00 or 3:30 p.m.,9 and the nurse still denied
Plaintiff's medical emergency. Id. at 9. Plaintiff mentioned that
a different nurse came by with Defendants Greene and Renninger, and
Plaintiff informed the nurse that he had a medical emergency
consisting of blanking out accompanied by severe chest pains.
at 13.
Id.
Plaintiff did not recall the nurse's response, but she did
not send or take him to medical.
Id.
Apparently, Nurse Hopkins
visited him at least twice, and a different nurse came around once
to see him.
Id.
Secondly,
insufficient
Plaintiff
response
to
has
his
not
demonstrated
medical
needs.
an
objectively
Although
the
Defendants may have had harsh words for Plaintiff, two different
nurses saw Plaintiff that night, and they did not consider his
complaints or physical condition a medical emergency or respond as
if Plaintiff's health was at risk if he did not receive immediate
medical care rather than accessing routine sick call.
Thirdly, Plaintiff must show subjective awareness of facts
signaling the need and an actual inference of required action from
the facts presented. Although Plaintiff told the Defendants he was
having pain and blanking out, the medical staff on the wing did not
9
Corrections officers escort nurses on the wings. Deposition
(Doc. 86-1 at 13).
26
find Plaintiff's condition to present dire or exigent circumstances
requiring immediate medical attention.
"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, 588 F.3d at 1307 (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)).
Here, Plaintiff's condition was not so obvious that a lay
person would recognize the necessity for a doctor's attention.
Plaintiff's medical need was not of a kind that would be open and
obvious to any lay person, such as a wound typically resulting from
violent trauma.
Plaintiff "has not presented record evidence
demonstrating that his situation was so obviously dire" that is
should
have
been
obvious
to
a
lay
officer
that
delay
would
exacerbate the medical condition and the matter should be treated
as an emergency.
Fla. 2012).
Lelieve v. Oroso, 846 F.Supp.2d 1294, 1306 (S.D.
Also, Plaintiff's medical condition is not of a kind
that would be apparent (or, if apparent, is not of a kind that
would be understood by a lay person in terms of its seriousness or
its treatment). The record also shows that Plaintiff received some
27
medical attention;10 therefore, the only way the he can effectively
create a genuine 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.
Moreover, based on the record evidence, medical professionals
(nurses)
determined
emergency[.]"
that
Plaintiff
"was
not
presenting
an
See Townsend, 601 F.3d at 1159 (concluding that
officers may rely on the medical professional's judgment, unless
evidence is presented that the officers must have known that the
medical professional grossly misjudged the inmate's condition). No
operative evidence has been presented supporting any contention
that the nurses misjudged Plaintiff's situation or that a lifethreatening or other dire medical condition was exhibited and
ignored.
Delay in providing treatment may rise to the level of an
Eighth Amendment violation:
Our cases, too, have recognized that
prison officials may violate the Eighth
Amendment's commands by failing to treat an
10
Here, Plaintiff received some medical attention from nurses
on the wing. He was observed by and spoke to two different medical
professionals, and neither one decided that Plaintiff's complaints
or observable condition required emergency medical attention and
could not be properly addressed through routine sick calls.
28
inmate's pain. In Brown v. Hughes, 894 F.2d
1533 (11th Cir. 1990), we recognized that the
delay of a few hours in treating an inmate's
broken foot could constitute a violation of
the Eighth Amendment, holding that the failure
to treat the pain from a broken foot, even for
a few hours, was a constitutionally cognizable
injury. "With this type of injury, it may be
that deliberately indifferent delay, no matter
how brief, would render defendants liable as
if they had inflicted the pain themselves.
Deliberately inflicted pain, as with an
electric
cattle
prod,
does
not
become
unimportant and unactionable under the eighth
amendment simply because the pain produced is
only momentary." Id. at 1538; Washington v.
Dugger, 860 F.2d 1018, 1021 (11th Cir. 1988)
(reversing grant of summary judgment to prison
officials on inmate's claim that delay in
providing treatments that "eliminated pain and
suffering at least temporarily" constituted
deliberate
indifference);
Aldridge
v.
Montgomery, 753 F.2d 970, 972–73 (11th Cir.
1985) (reversing directed verdict to officers
who failed to provide ice pack and aspirin for
pain caused by bleeding cut); see also Ralston
v. McGovern, 167 F.3d 1160, 1162 (7th Cir.
1999) (reversing grant of summary judgment to
prison guard who failed to provide pain
medication to inmate); Boretti v. Wiscomb, 930
F.2d
1150,
1154–55
(6th
Cir.
1991)
(recognizing that "a prisoner who suffers pain
needlessly when relief is readily available
has a cause of action against those whose
deliberate indifference is the cause of his
suffering.").
McElligott v. Foley, 182 F.3d 1248, 1257 (11th Cir. 1999).
In order to show a deprivation of a constitutional dimension
based
on
verifying
delay
in
medical
medical
evidence
treatment,
in
the
an
record
inmate
to
"must
place
establish
the
detrimental effect of delay in medical treatment to succeed."
Hill, 40 F.3d at 1187-88.
See McDaniels v. Lee, 405 F. App'x 456,
29
458-59 (11th Cir. 2010) (recognizing that to survive summary
judgment, an inmate must show that the delay attributable to the
defendant's indifference likely caused the plaintiff's injury).
This,
Plaintiff
has
not
done.
Not
only
has
Plaintiff
not
demonstrated the seriousness of his medical need, he has not shown,
through verifying medical evidence, that any delay worsened a
medical condition or exacerbated a medical problem. Goebert v. Lee
Cty., 510 F.3d 1312, 1327 (11th Cir. 2007).
Indeed, Plaintiff has
failed to show, through the medical records and evidence he
submitted,
that
he
suffered
any
injury
attributable
to
the
Defendants' alleged deliberate indifference in delaying his medical
care.
In sum, Plaintiff has failed to "place verifying medical
evidence in the record to establish the detrimental effect of delay
in medical treatment . . . ."
Jacoby v. Baldwin Cty., 596 F. App'x
757, 767 (11th Cir. 2014) (per curiam) (quoting Hill, 40 F.3d at
1187).
Plaintiff's contentions are insufficient to create a
genuine issue of material fact on his deliberate indifference claim
against Defendants Renninger and Greene.
VII.
Physical Injury
Plaintiff has failed to present any medical evidence that he
suffered
injuries
as
a
result
of
the
Defendants'
actions.
Plaintiff, in his Deposition, states that the Defendants' actions
caused him emotional distress.
Deposition (Doc. 86-1 at 14).
He
explained that he had a past injury, and he feared that he could
30
have had a heart attack or a stroke.
Id. at 14-15.
Plaintiff's
fear and conjecture is insufficient to create a genuine issue of
material fact.
Emotional distress and anguish accompanied by
headaches, dizziness and heart palpitations constitutes nothing
greater than a de minimis injury.
In this action, Plaintiff is
seeking damages for mental or emotional injury and is barred from
seeking compensatory damages pursuant to 42 U.S.C. § 1997e(e).
Plaintiff
states
that
he
is
seeking
$300,000.00
in
compensatory damages, jointly and severally, and $50,000.00 in
"nominal" damages against each Defendant.
at 19.
Third Amended Complaint
Even a liberal construction of Plaintiff's Complaint does
not support a contention that he is seeking nominal damages.11
Honors v. Judd, No. 8:10-cv-22-T-33AEP, 2011 WL 3498287, at *6
(M.D. Fla. Aug. 10, 2011) (not reported in F.Supp.2d) (noting that
in Hughes v. Lott, 350 F.3d 1157 (11th Cir. 2003), the Eleventh
Circuit held that 1997e(e) does not bar suits by prisoners if they
have not alleged a physical injury if they seek nominal damages,
but finding that "Honors claim does not fall within that narrow
exception as he is seeking, among other things, an award of
punitive and compensatory damages"); McCiskill v. Thompson, No.
11
A request for a large sum of money does not constitute a
request for nominal damages, of which $1.00 is the norm, "as
nominal damages implies a mere token or trifling." Williams v.
Langford, No. 2:13-cv-315-J-FtM-38CM, 2015 WL 163226, at *7 (M. D.
Fla. Jan. 12, 2015) (not reported in F.Supp.3d). A request for
$50,000.00 from each Defendant is a request for a substantial sum
of money, $100,000.00, not a mere token.
31
3:10cv211/MCR/MD, 2010 WL 4483408, at *3 n.4 (N.D. Fla. Sept. 22,
2010)
(not
reported
in
F.Supp.2d)
(holding
that
the
narrow
exception in Hughes v. Lott with regard to a nominal damages claim
does
not
apply
because
McCiskill
seeks
punitive
damages
and
attorneys' fees, not nominal damages), report and recommendation
adopted by 2010 WL 4457182 (N.D. Fla. Oct. 29, 2010).
Plaintiff's case does not fall within the narrow exception as
he is seeking, among other things, an award of $300,000.00 in
compensatory damages, and $50,000.00 from each Defendant, in what
he calls "nominal" damages.
The Court concludes that "Plaintiff's
complaint cannot be liberally construed as requesting nominal
damages," based on the fact that Plaintiff is clearly seeking
substantial damages: $300,000.00 in compensatory damages, and
$50,000.00 in other damages against each defendant, certainly not
a trifling amount.
Honors v. Judd, 2011 WL 3498287, at *6 n.2.
See Eloy v. Guillot, 289 F. App'x 339, 346 n.15 (11th Cir. 2008)
(citing
Carey
v.
Piphus,
435
U.S.
247,
248,
266–67
(1978)
(explaining nominal damages and relating that in a civil rights
action in which the plaintiff does not suffer actual injury, the
plaintiff is not entitled to recover substantial non-punitive
damages for a constitutional violation, but instead may be awarded
a nominal sum, not to exceed one dollar)).
32
VIII.
Defendants
immunity.
contend
Qualified Immunity
that
they
are
entitled
to
qualified
The Eleventh Circuit provides the following guidance in
reviewing a claim of entitlement to qualified immunity:
To receive qualified immunity, [a] public
official must establish that he was engaged in
a "discretionary function" at the time he
committed
the
allegedly
unlawful
act.
Holloman ex. rel. Holloman v. Harland, 370
F.3d 1252, 1263-64 (11th Cir. 2004) . . . .
If the official demonstrates that he was
engaged in a discretionary function, the
burden shifts to the plaintiff to prove that
the official is not entitled to qualified
immunity.
Cottone v. Jenne, 326 F.3d 1352,
1358 (11th Cir. 2003).
This requires
plaintiff to satisfy the two-part test
prescribed by the Supreme Court in Saucier v.
Katz, 533 U.S. 194, 121 S.Ct. 2151, 150
L.Ed.2d 272 (2001).
Under Saucier, a
plaintiff must first show that the defendant
violated a constitutional right and then
demonstrate that the constitutional right was
clearly established at the time of the alleged
wrongful act. 533 U.S. at 201, 121 S.Ct. at
2156.
If a court, after viewing all the
evidence in the light most favorable to the
plaintiff and drawing all inferences in his
favor, determines that the plaintiff has
satisfied
these
two
requirements,
the
defendant may not obtain qualified immunity.
Holloman, 370 F.3d at 1264.
Bryant v. Jones, 575 F.3d 1281, 1295 (11th Cir. 2009), cert.
denied, 559 U.S. 940 (2010). This Court is "free to consider these
elements in either sequence and to decide the case on the basis of
either element that is not demonstrated."
Youmans v. Gagnon, 626
F.3d 557, 562 (11th Cir. 2010) (per curiam).
33
It
is
undisputed
that
the
Defendants
were
engaged
discretionary functions during the events in question.
in
These
Defendants did not violate Plaintiff's constitutional rights and
are therefore entitled to qualified immunity.
Accordingly, it is now
ORDERED:
1.
Defendants' Motion for Summary Judgment (Doc. 68) is
GRANTED, and the Clerk shall enter judgment for Defendants K.
Renninger and Lt. J Greene and against the Plaintiff.
2.
The Clerk shall terminate all pending motions, enter
judgment accordingly, and close this case.
DONE AND ORDERED at Jacksonville, Florida, this 18th day of
September, 2017.
sa 9/5
c:
Jerald Gipson
Counsel of Record
34
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