Merrill v. Florida Department of Corrections et al

Filing 44

ORDER granting 27 Defendants' motion to dismiss to the extent the claims of excessive force raised against them for what occurred in the sally-port area of the O dormitory are found to be Heck-barred and are dismissed without prejudice; to the extent that the verbal abuse claim raised against Defendant Nunley is dismissed; denying 27 with respect to the claims of excessive force raised against Certain, Hale, Miara, Nunley, and Sievers for actions that allegedly occurred after Plaint iff exited the O dormitory; denying 36 Motion to Dismiss for Failure to State a Claim, Defendant Landrum shall respond to the amended complaint by December 28, 2016; Plaintiff withdraws his claim against Defendant Julie Jones, Secretary, Florida Department of Corrections; therefore, Defendant Julie Jones, Secretary, Florida Department of Corrections, is dismissed from this action.. Signed by Judge Brian J. Davis on 10/27/2016. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
BRIAN THOMAS MERRILL,
Plaintiff,
v.

Case No. 3:15-cv-1220-J-39JBT

JULIE L. JONES, SECRETARY,
FLORIDA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

ORDER
I.

Status

Plaintiff Brian Thomas Merrill, an inmate of the Florida
Department of Corrections, is proceeding on a pro se Amended Civil
Rights Complaint (Amended Complaint) (Doc. 25).

Plaintiff names

the Defendants in their individual capacities.

Id.

Defendants

Certain, Hale, Jones, Miara, Nunley, and Sievers filed a Motion to
Dismiss Amended Complaint (Defendants' Motion to Dismiss) (Doc.
27), and Plaintiff filed his Response to Defendants' Motion to
Dismiss Amended Complaint (Response) (Doc. 32).1 Defendant Landrum
filed a separate Motion to Dismiss Amended Complaint (Landrum's
Motion to Dismiss) (Doc. 36), and Plaintiff filed his Response to
Defendant Landrum's Motion to Dismiss Amended Complaint (Response
1

The Court advised Plaintiff concerning a motion to dismiss
and provided Plaintiff with an opportunity to respond. Order (Doc.
5).

to Landrum's Motion) (Doc. 40).

Along with his verified Amended

Complaint,2 Plaintiff submitted Exhibits (Docs. 25, 32, & 40).
This is a civil rights action for compensatory and punitive
damages brought by a state prisoner under 42 U.S.C. § 1983.
Plaintiff claims he was subjected to the excessive use of force, a
beating, by Defendants, state corrections officers, in violation of
Plaintiff's Eighth Amendment right to be free from the infliction
of cruel and unusual punishment.

More specifically, he alleges

that Defendants Michael J. Hale, Scott A. Nunley, Kenneth J.
Certain, Jeffrie D. Miara, and Kevin E. Sievers brutally beat him
at Suwannee Correctional Institution (SCI) on February 25, 2014.
Amended Complaint at 6.3
Jones,

the

current

He also claims that Defendant Julie L.

Secretary

of

the

Florida

Department

of

Corrections, is liable for the conduct of these officers, because
she did have, or should have had, reasonable knowledge that there
was a surge in excessive force complaints against SCI officials
prior

to

this

event,

requiring

her

to

take

appropriate

administrative actions to prevent such unconstitutional actions by

2

See Stallworth v. Tyson, 578 F. App'x 948, 950 (11th Cir.
2014) (per curiam) (citations omitted) ("The factual assertions
that [Plaintiff] made in his amended complaint should have been
given the same weight as an affidavit, because [Plaintiff] verified
his complaint with an unsworn written declaration, made under
penalty of perjury, and his complaint meets Rule 56's requirements
for affidavits and sworn declarations.").
3

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

the officers of SCI.

Id.

at 7.

Finally, Plaintiff asserts that

Defendant Chris P. Landrum, the former Warden of SCI, should be
held accountable for the actions of his subordinate officers
because Landrum did have, or should have had, reasonable knowledge
of the alarming increase in excessive uses of force at SCI during
the years 2013-2014. Id. Plaintiff claims that Landrum failed "to
take immediate therapeutic measures" to forestall the February 25,
2014 incident, and to preserve videographic records.
Plaintiff
relevant part.

provides

the

following

statement

Id.
of

facts

in

On February 24, 2014, at approximately 9:00 a.m.,

Sergeant William B. Summerall ordered Plaintiff to the sally-port
area of O dormitory for a pre-confinement search and inventory of
personal property.4

Id. at 7-8.

Summerall informed the shift

supervisory, Captain Ratliff that Plaintiff had violated the rules
by giving another inmate a tattoo.

Id.

Summerall requested

approval to place Plaintiff in confinement pending disciplinary
action. Id. Ratliff denied this request, and instructed Summerall
to

write

a

contraband.

"walking"

disciplinary

report

for

possession

of

Id.

After Plaintiff was returned to his assigned cell, Summerall
told Plaintiff that he would pay dearly for that.

4

Although Plaintiff refers to
the Amended Complaint, apparently
that he alleges took place the day
his February 25, 2014 reference is

Id.

Summerall

February 25, 2014 on page 7 of
he is referring to the events
before, February 24, 2014, and
a typographical error.

- 3 -

announced that there would be a shake down the following morning.
Id.

The next day, February 25, 2014, the officers conducted a

shake down, but Plaintiff was excluded from the orders.

Id. at 9.

Summerall encouraged the inmates to violently respond to this
Id. at 8-9.

situation by attacking Plaintiff.

Thereafter,

Summerall and Plaintiff exchanged unkind words, and Summerall told
Plaintiff that some gang members owed him, and Plaintiff would be
taken care of shortly.

Id. at 9.

At approximately 9:00 a.m., Officer Baldwin ordered Plaintiff
to the foyer of O dormitory.

Plaintiff noticed Officer

Id.

Herring and three "Latino-looking" inmates standing near the supply
room of the sally-port. Id. Plaintiff went to the control station
and declared a mental health emergency.
Plaintiff to step into the sally-port.

Id.

Summerall ordered

Id. at 10.

is out of the range of security cameras.

Id.

The sally-port

Summerall recently

returned to duty after being on administrative leave for an
"alleged beating of an inmate" in the sally-port area.
Plaintiff refused Summerall's order.

Id.

Id.

Plaintiff asked to see

the Captain. Id. Summerall angered, attempted to strike Plaintiff
with a clenched fist, but Plaintiff stepped out of the way, and
Plaintiff struck Summerall in the face with a clenched fist.
Officer

Herring

grabbed

Plaintiff

"defend[ed] himself[.]" Id.
quell the disturbance.

from

behind,

and

Id.

Plaintiff

Someone summoned additional staff to

Id.

- 4 -

Additional officers arrived, and an officer struck the base of
Plaintiff's skull with a heavy, blunt object, slamming Plaintiff
face-first onto the concrete floor.
handcuffed Plaintiff behind his back.

Id.

Officers immediately

Plaintiff did not resist

being placed in restraints as he lay unmoving on the floor.

Id.

At this point, Hale stepped on Plaintiff's neck, pinning
Plaintiff's head sideways against the floor.

Id. at 11.

Someone

sprayed chemical agents into Plaintiff's eyes, nose, and mouth
while Miara, Sievers, and Nunley kicked Plaintiff in the ribs and
abdominal region and stomped on his lower spine.

Id.

Hale and

Certain pulled Plaintiff to a standing position and drove him
headlong into the bars of the sally-port gate. Id. Nunley ordered
the officers to get Plaintiff off camera.

Id.

Hale and Certain

pulled Plaintiff through the sally-port area and rammed his head
into the exterior door.

Id.

From the control room, Officer

Baldwin disengaged the mechanical lock on the door.
They exited O dormitory.
Plaintiff.

Id.

Id.

Id.

Nunley chemically sprayed

As Plaintiff was slammed against the side of the

building, Nunley chemically sprayed Plaintiff again.

Id.

Nunley,

while stating that Plaintiff would learn his lesson about placing
his hands on officers, bent Plaintiff's little finger on his right
hand backwards to his wrist, breaking the finger in several places.
Id.

Someone threw Plaintiff down on the walkway, and Nunley

chemically

sprayed

Plaintiff.

Id.

- 5 -

Hale

repeatedly

punched

Plaintiff on the right side of his face and head with a pair of
handcuffs, causing hematomas, a ruptured ear-drum, lacerations, and
contusions.

Id.

Certain repeatedly struck Plaintiff on the left

temporal region of his head with a walkie talkie radio.

Id.

Miara

and Sievers kicked Plaintiff in the ribs, back, legs, and groin
area.

Id.

Plaintiff briefly lost consciousness.

Id.

Plaintiff regained consciousness and found himself near the
security gate of P dormitory.
Plaintiff in the head and torso.

Id.
Id.

Hale and Certain struck
Captain Ratliff arrived and

told the officers to stop striking Plaintiff and to put him in
confinement without further incident.

Id.

Officers escorted

Plaintiff to P dormitory for a decontamination shower prior to a
post-use-of-force medical screening and pre-confinement physical.
Id. An officer used a hand-held video camera to record Plaintiff's
movements in P dormitory.

Id.

After showering, Plaintiff turned

to the camera and complained about being hit with handcuffs and
radios.

Id.

After being placed in restraints, officers escorted Plaintiff
to the confinement unit medical room.

Id. at 13.

Nunley told

Plaintiff that officers would beat him to death and bury him under
the dormitory if Plaintiff complained of his injuries or made
allegations against officers to the medical staff.

Id.

Nunley

pressed on Plaintiff's wounded left elbow when Plaintiff attempted
to complain to nurse Wendy Hancock, LPN, about his broken finger

- 6 -

and the black spot in his peripheral vision of his left eye.
The

nurse

injuries.

performed

a

perfunctory

examination

of

Id.

Plaintiff's

Id.

Told that he was being charged with battery on law enforcement
officers, Plaintiff gave a recorded statement to the Inspector
General's

Office.

Id.

After

being

transported

to

Union

Correctional Institution (UCI), Plaintiff went to the medical
clinic, and the staff videotaped his injuries.
head and face were very swollen.

Id. at 13-14.

Id.

Plaintiff's

M. Griffith, R.N.,

and R. Lafontant, M.D., conducted a comprehensive examination of
Plaintiff's injuries.

Plaintiff told Nurse Griffith that he had

been warned not to complain about his injuries.

Id.

The medical

staff ordered emergency transportation to Jacksonville Memorial
Hospital Trauma Center for a CT-scan and medical treatment.

Id.

After returning to UCI, Plaintiff made a sick call request on
March 5, 2014, for treatment of lingering medical issues that were
causing intense pain and discomfort.

Id.

A nurse told Plaintiff

that nothing could be done for him, but he could ask the dormitory
officer for Ibuprofen.

Id.

The injuries of which Plaintiff

complains are permanent disfigurement and limited mobility of the
little finger on Plaintiff's right hand; a black spot obscuring the
peripheral vision in Plaintiff's left eye; loss of hearing in
Plaintiff's

right

ear;

migratory

cerebral

pain;

tingling

and

numbness of the right side of Plaintiff's face; vertigo; feeling

- 7 -

inflated or deflated; disorientation; chronic lower back and leg
pain; and psychological issues (paranoia, timidity, disturbing
thoughts and dreams).

Id. at 15.
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.

Defendant Jones

Defendant Jones asserts that she was not the Secretary of the
Florida Department of Corrections in February 2014, or prior
thereto.

Defendants' Motion to Dismiss at 13.

Plaintiff, in his

Response, withdraws his claim of supervisory liability against
Secretary Julie Jones. Since that is the only claim in this action

- 8 -

against Julie Jones, the Secretary of the Florida Department of
Corrections, she will be dismissed from this action.
IV.

Verbal Abuse

To the extent Plaintiff is claiming that Defendant Nunley's
verbal

threats

constitute

a

constitutional

violation,

Defendants' Motion to Dismiss is due to be granted.
to the alleged use of abusive language,

the

With respect

such allegations do not

state a claim of federal constitutional dimension.

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."), cert.
denied, 555 U.S. 1184 (2009).
"[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).

- 9 -

McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.), cert. denied, 464
U.S. 998 (1983). As such, Defendants' Motion to Dismiss concerning
Plaintiff's claim regarding Nunley's verbal threats is due to be
granted.
V.

Heck-Bar

Defendants assert that Plaintiff's claim of excessive use of
force is barred because his allegations call into question the
validity of Plaintiff's two disciplinary convictions for battery or
attempted battery on a corrections officer, for which Plaintiff
lost future gain time.

Defendants' Motion to Dismiss at 6-8.

See

Declaration of CPC Russ Pridgeon (Doc. 22-3) regarding forfeiture
of future gain time.
In this regard, the record shows that on February 25, 2014,
Officer Summerall wrote a disciplinary report against Plaintiff for
battery

or

attempted

battery

Defendants' Exhibit A (Doc. 22-1).

of

a

correctional

officer.

The Disciplinary Report, Log #

231-140240, charges the following:
Inmate Merrill, Brian DC#974374 is being
charged with (1-15) battery or attempted
battery on a correctional officer, which is a
violation of the rules of prohibited conduct.
On February 25, 2014, I was assigned as ODormitory
housing
supervisor.
At
approximately 0845 hours, I was present in the
vestibule area of O-Dormitory counseling with
inmate Merrill.
Inmate Merrill then began
striking me in the facial area with clenched
fists. Inmate Merrill refused all orders to
cease his combative behavior as he continued
to strike me in the facial and upper torso
area with clenched fists, refusing to submit
- 10 -

to
hand
restraints.
Inmate
Merrill's
combative behavior resulted in a reactionary
chemical and physical use of force as
additional staff arrived to assist.
Inmate
Merrill
was
placed
in
administrative
confinement pending the disposition of this
report. I sustained multiple facial injuries
as a result of this incident. Photographs of
the injuries were taken as evidence and
attached.
Defendants' Exhibit A at 1 (capitalization omitted) (Doc. 22-1).
Plaintiff did not attend the disciplinary proceeding and made
no plea.

Id.

The disciplinary team found Petitioner guilty.

Id.

The basis given for the decision is:
Subject was found guilty of charge 1-15 based
on eyewitness testimony of Officer Summerall
that subject struck him [in] the face with a
clinched [sic] fist.
All attachments were
read and considered.
Subject refused to be
present at the hearing and signed DC6-–112D.
Id. (capitalization omitted).
The recorded disciplinary action is sixty days of disciplinary
confinement and a loss of 180 days of future gain time.5

Id. at 2.

The disciplinary report has not been overturned and remains on
Plaintiff's institutional record. Defendants' Motion to Dismiss at
4, 11.
Also of record, on February 25, 2014, Officer Herring wrote a
disciplinary report against Plaintiff for battery or attempted
battery of a correctional officer. Defendants' Exhibit B (Doc. 225

Plaintiff had no accrued gain time available to be
immediately forfeited. Defendants' Exhibit A at 2 (Doc. 22-1).
- 11 -

2).

The Disciplinary Report, Log # 231-140241, charges the

following:
Inmate Merrill, Brian DC#974374 is being
charged with (1-15) battery or attempted
battery on a correctional officer, which is a
violation of the rules of prohibited conduct.
On February 25, 2014, I was assigned as ODormitory housing officer. At approximately
0846 hours, I responded to the vestibule area
of O-Dormitory to assist Sergeant W. Summerall
in restraining Inmate Merrill. Inmate Merrill
then began striking me in the facial area and
torso area with clenched fists.
Inmate
Merrill refused all orders to cease his
combative behavior as he continued to strike
me and Sergeant Summerall with clenched fists,
refusing to submit to hand restraints. Inmate
Merrill's combative behavior resulted in a
reactionary chemical and physical use of force
as additional staff arrived to assist. Inmate
Merrill
was
placed
in
administrative
confinement pending the disposition of this
report.
I sustained facial injuries and an
injury to my left arm as a result of this
incident.
Photographs of the injuries were
taken as evidence and attached.
Defendants' Exhibit B at 1 (capitalization omitted) (Doc. 22-2).
Plaintiff did not attend the disciplinary proceeding and made
no plea.

Id.

The disciplinary team found Petitioner guilty.

The basis given for the decision is:
Subject was found guilty of charge 1-15 based
on eyewitness testimony of Officer Herring
that subject struck him in the face and torso
area.
All attachments were read and
considered B [sic].
Subject refused to be
present at the hearing and signed DC6-–112D.
Id. (capitalization omitted).

- 12 -

Id.

The recorded disciplinary action is sixty days of disciplinary
confinement and a loss of 180 days of future gain time.6

Id. at 2.

The disciplinary report has not been overturned and remains on
Plaintiff's institutional record. Defendants' Motion to Dismiss at
5, 11.
Defendants assert a Heck-bar defense, relying on Heck v.
Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641
(1997).

Defendants' Motion to Dismiss at 6.

See Palmer v. Laux,

No. 2:10-cv-438-FtM-29DNF, 2011 WL 4029085, at *8 (M.D. Fla. Sept.
12, 2011) (Not Reported in F.Supp.2d) (finding the plaintiff
steered his case into Heck territory by raising claims directly
contrary to the facts upon which the disciplinary charges were
based).

Defendants Certain, Hale, Miara, Nunley, and Sievers

contend that successful prosecution of Plaintiff's claims in this
case would necessarily imply the invalidity of the institutional
orders imposing disciplinary punishment and that such a claim
cannot be maintained under § 1983 unless and until the disciplinary
orders have been set aside as a result of other available remedies.
See Heck, 512 U.S. 477; Woodford v. Ngo, 548 U.S. 81 (2006).

The

Supreme Court, in Heck, emphasized that it was not imposing an
exhaustion requirement upon 42 U.S.C. § 1983 actions, but, "'rather
den[ied] the existence of a cause of action' altogether."

6

Harden

Plaintiff had no accrued gain time available to be
immediately forfeited. Defendants' Exhibit B at 2 (Doc. 22-2).
- 13 -

v. Pataki, 320 F.3d 1289, 1294 (11th Cir. 2003) (quoting Heck, 512
U.S. at 489)).
The

Heck-bar

has

been

extended

to

prison

disciplinary

determinations if the civil rights claim would necessarily affect
the fact or duration of confinement:
In Heck, the Supreme Court held that if a
judgment in favor of the plaintiff on his §
1983
claim
for
money
damages
"would
necessarily imply the invalidity of his
conviction or sentence," the district court
must dismiss the complaint, unless the
conviction or sentence has already been
invalidated. 512 U.S. at 487, 114 S.Ct. at
2372. The Court later extended this bar to
prison disciplinary judgments that result in
the deprivation of good-time credits. See
Edwards, 520 U.S. at 646–48, 117 S.Ct. at
1588–89. However, Heck only applies to prison
disciplinary determinations if a prisoner's §
1983 claim would necessarily affect the fact
or duration of his confinement. See Wilkinson
v. Dotson, 544 U.S. 74, 79, 81–82, 125 S.Ct.
1242, 1246–48, 161 L.Ed.2d 253 (2005);
Muhammad v. Close, 540 U.S. 749, 754, 124
S.Ct. 1303, 1306, 158 L.Ed.2d 32 (2004).
Thus, as we have made clear, the same facts
underlying a conviction, or in this case, a
disciplinary judgment, can also give rise to a
§ 1983 claim without implicating Heck. Dyer v.
Lee, 488 F.3d 876, 879–80 (11th Cir. 2007)
("[A]s long as it is possible that a § 1983
suit
would
not
negate
the
underlying
conviction,
then
the
suit
is
not
Heck-barred.").
Davis v. Hodges, 481 F. App'x 553, 554 (M.D. Fla. 2012) (per
curiam).
Therefore, it is clearly established law that an action under
§ 1983 simply will not lie and should be dismissed if the remedy or

- 14 -

remedies

sought

in

the

action

would

"necessarily

imply

the

invalidity of the punishment imposed" in a prison disciplinary
proceeding.

Additionally, under Bryant v. Rich, the Court may

accept evidence and act as a fact-finder to resolve the threshold
issues to resolve all matters in abatement.

Bryant v. Rich, 530

F.3d 1368, 1376 (11th Cir.) ("it is proper for a judge to consider
facts outside of the pleadings and to resolve factual disputes so
long as the factual disputes do not decide the merits"), cert.
denied, 555 U.S. 1074 (2008).
Plaintiff, in his Amended Complaint and in his Response,
states that he is not seeking injunctive relief to overturn,
expunge or reverse the disciplinary report or to restore his gain
time.

Amended Complaint at 6; Response at 2, 5.

Instead, he

argues that he is entitled to monetary damages for an Eighth
Amendment violation, the excessive use of force.
He

attempts

to

distinguish

his

case

by

Response at 4.

asserting

that

his

disciplinary convictions have no bearing on the Eighth Amendment
claims against the Defendants for excessive force. Id. He further
states that there is nothing in his Amended Complaint remotely
suggesting

that

he

seeks

convictions overturned.

to

have

his

disciplinary

report

Id. at 5.

Plaintiff's "argument that Heck is inapplicable because he is
not seeking to expunge his disciplinary actions misses the mark."
Richards v. Dickens, 411 F. App'x 276, 278 (11th Cir. 2011) (per

- 15 -

curiam) (holding the inmate's challenge to a prison disciplinary
conviction that resulted in the loss of gain time was barred by
Heck; the disciplinary conviction for assault on a law enforcement
officer was premised on the fact that the inmate started the
scuffle, and the inmate's claims for excessive force were premised
on the fact that the prisoner acted in self-defense; thus, his
claims implied the invalidity of the disciplinary conviction).

In

this instance, "the relevant inquiry is not whether a prisoner
explicitly seeks to reinstate his good-time credits, but instead
whether the § 1983 claims call into question the validity of the
deprivation of those credits."

Id.

Also, dismissal pursuant to

"the principles announced in Heck may be appropriate regardless of
the kind of relief sought."

Esensoy v. McMillan, No. 06-12580,

2007 WL 257342, at *1 n.6 (11th Cir. 2007) (per curiam) (citation
omitted), cert. denied, 552 U.S. 1097 (2008).
Although this is a close case, upon careful consideration of
the Amended Complaint, the documents, and exhibits submitted to the
Court, the Court is convinced that a substantial portion of the
excessive force claim raised against Defendants Certain, Hale,
Miara, Nunley, and Sievers is Heck-barred.
Plaintiff contends that he was subjected to chemical spraying
and physical force for reasons other than he struck Officer
Summerall, refused to obey verbal orders to cease his actions, and
resisted restraint - a claim that would necessarily imply the

- 16 -

invalidity of the punishment imposed.

Indeed, Plaintiff alleges

that Summerall, without justification, or more accurately with
improper motive and out of anger, attempted to strike Plaintiff.7
Thus, he is contending that he was subjected to an unprovoked
attack, for improper reasons, and the disciplinary reports are
false as he was simply defending himself.
Notably, Summerall's disciplinary report states that he was
attempting to counsel Merrill when Merrill struck him in the face.
Additionally, it states that Merrill refused all orders to cease
his actions, and continued to strike Summerall in the face and
upper torso, while refusing to submit to being placed in hand
restraints.

Again, the force used by the officers is described as

reactionary chemical and physical force.
Herring's report similarly describes the events.

Herring

responded to assist Summerall in restraining Merrill.

Merrill

struck Herring in the face and torso.

Merrill is described as

refusing to cease his combative actions, continuing to strike both
Herring and Summerall, and refusing to submit to hand restraints.
7

This is not a case in which Plaintiff admitted that yes, he
instigated the altercation by striking Summerall first, without
justification, and disobeyed verbal orders to cease his combative
behavior, he was properly disciplined for that infraction, but the
officers used excessive force in subduing him. Instead, Plaintiff
alleges in his Amended Complaint that Summerall was angry and tried
to strike him and Plaintiff was in a defensive, rather than
offensive position when the events in question unfolded.
Furthermore, Plaintiff alleges that he was chemically sprayed and
beaten after he was subdued and restrained in handcuffs in O
dormitory, entirely contrary to the description of the incident
provided in both disciplinary reports.
- 17 -

Herring describes the force used as reactionary chemical and
physical force.

Of note, both officers stated they sustained

injuries.
In his verified Amended Complaint, Plaintiff states that
Summerall

tried

to

strike

him

first,

Plaintiff

responded

by

striking Summerall in the face, and Plaintiff simply defended
himself against Officer Herring, who grabbed him from behind. When
the other officers arrived, Plaintiff states he was immediately
struck

from

behind,

handcuffed

behind

his

back,

and

ceased

resisting.
Of import, the disciplinary reports otherwise describe the
elements of the infraction; therefore, this Court finds that
Plaintiff's allegations would necessarily invalidate the revocation
of his gain-time credits.

Of note, the report specifically states

that Plaintiff was the aggressor, striking Summerall as Summerall
attempted to counsel with him.

Additionally, both reports state

that the correctional officers gave repeated orders to Plaintiff to
cease his combative actions, to no avail.

The reports further

state that reactionary uses of physical and chemical force were
employed by the officers as a result of Plaintiff's combative
actions and refusal to obey orders to cease and desist.

The

findings of guilt are based on the charges and the eyewitness
testimonies of Summerall and Herring. Of import, Plaintiff refused

- 18 -

to attend the disciplinary proceedings and defend himself against
both battery charges.
A judgment in Plaintiff's favor would necessarily imply the
invalidity of his disciplinary reports and the loss of 360 days of
gain time Plaintiff received for the incident which occurred in the
sally-port of O dormitory.

Plaintiff is alleging that he was

subjected to an unprovoked and unjustified attack and subjected to
unjustified uses of force, including chemical spraying, in response
to an incident that occurred the day before when Plaintiff was
caught applying a tattoo on another inmate and escaped immediate
confinement.

See LaFlower v. Kinard, No. 2:10-cv-82-FtM-29SPC,

2011 WL 2183555, at *3 (M.D. Fla. June 6, 2011) (Not Reported in
F.Supp.2d) (finding the case Heck-barred when the plaintiff alleged
an unprovoked, retaliatory attack for past lawsuits, not a claim
concerning the magnitude of the force used in response to his
failure to comply with orders).

He submits that the brunt of this

assault occurred while he was already subdued and restrained behind
his back.

Indeed, he states that he was chemically sprayed after

he was handcuffed behind his back.

Plaintiff has not alleged the

reversal of the disciplinary reports or presented documents showing
that he has caused the disciplinary proceedings to be set aside
through administrative, state or federal remedies available to him.
Unless and until the disciplinary reports have been overturned,
Plaintiff has no claim for money damages.

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Of import, at this

juncture, the record shows that the disciplinary reports have not
been overturned.8
Therefore, based on the above, Defendants' Motion to Dismiss
based on the Heck-bar defense is due to be granted with respect to
the claims against them for what occurred in the sally-port area of
the O dormitory.

These excessive force claims will be dismissed

without prejudice to Plaintiff's right to refile his claims in a
new civil rights case against Defendants Certain, Hale, Miara,
Nunley, and Sievers under 42 U.S.C. § 1983 when he can demonstrate
that the disciplinary reports have been overturned.

Again, a

petition for writ of habeas corpus would be the proper method to
challenge the disciplinary proceedings and the results of those
proceedings.
There is, however, more to this case than the claims of
excessive force against the Defendants for what occurred in the
sally-port of O dormitory, which are Heck-barred.

In a portion of

the Amended Complaint, Plaintiff is clearly alleging the officers
use of force in response to the sally-port incident was excessive.
Plaintiff
dormitory.

alleges

the

following

occurred

after

he

exited

O

Nunley repeatedly chemically sprayed him and bent

Plaintiff's little finger backwards, breaking the finger in several
places.

Hale

punched

Plaintiff

8

in

the

face

and

head

with

To the extent Plaintiff seeks reversal of the disciplinary
reports and restoration of his gain time, the proper method for
seeking such relief in this Court is by filing a petition for writ
of habeas corpus after exhausting state court remedies.
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handcuffs.

Certain struck Plaintiff on the head with a walkie

talkie radio.

Miara and Sievers kicked Plaintiff.

Hale and

Certain struck Plaintiff on the head and body. Finally, Nunley
pressed on Plaintiff's wounded left elbow.

All of these alleged

events occurred after the incident in the O dormitory, which was
the subject of the two disciplinary reports.
Defendants' Motion to Dismiss is due to be denied with respect
to the claims of excessive force against the Defendants for what
allegedly occurred after Plaintiff exited O dormitory.

This

portion of the Amended Complaint is not Heck-barred.
VI.

Defendant Landrum

The remaining claim is raised against Defendant Landrum.
Plaintiff claims that Landrum, the former Warden of SCI, should be
held accountable for the actions of his subordinate officers
because he did have, or should have had, reasonable knowledge of
the alarming increase in excessive uses of force at SCI during the
period from 2013 to 2014.

Plaintiff contends that Landrum failed

to take measures to prevent the excessive use of force and to
preserve videographic records.
In his Response to Landrum's Motion, Plaintiff states he is
not seeking sanctions for spoilation of videotapes.
Landrum's Motion at 18.

Response to

As a result, the Court will not address

Plaintiff's assertion that Landrum failed to preserve evidence.
Plaintiff states his claim against Landrum is based on a history of

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widespread abuse at SCI and failure to train officers concerning
proper physical and chemical force protocols.

Id. at 10-11.

Of significance, Defendant Landrum may not be held liable
under a theory of respondeat superior.
"Supervisory officials are not liable
under section 1983 on the basis of respondeat
superior or vicarious liability." Belcher v.
City of Foley, Ala., 30 F.3d 1390, 1396
(11th Cir. 1994) (internal quotation marks
and citation omitted). "The standard by which
a supervisor is held liable in her individual
capacity for the actions of a subordinate is
extremely rigorous." Gonzalez,[9] 325 F.3d at
1234 (internal quotation marks and citation
omitted). "Supervisory liability occurs either
when the supervisor personally participates in
the alleged constitutional violation or when
there is a causal connection between actions
of the supervising official and the alleged
constitutional
deprivation."
Brown
v.
Crawford, 906 F.2d 667, 671 (11th Cir. 1990).
Danley v. Allen, 540 F.3d 1298, 1314 (11th Cir. 2008) (overruled on
other grounds); see Braddy v. Fla. Dep't of Labor & Emp't Sec., 133
F.3d 797, 801 (11th Cir. 1998) (finding supervisory liability
requires something more than stating a claim of liability under a
theory of respondeat superior).
With regard to supervisory liability, the Eleventh Circuit
directs:
In a § 1983 suit, liability must be based on
something more than respondeat superior.
Brown,[10] 906 F.2d at 671. Supervisory
9

Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003).
10

Brown v. Crawford, 906 F.2d 667 (11th Cir. 1990), cert.
denied, 500 U.S. 933 (1991).
- 22 -

liability can be found when the supervisor
personally
participates
in
the
alleged
constitutional violation, or when there is a
causal connection between the supervisory
actions and the alleged deprivation. Id.
A
causal connection can be established through a
showing of a widespread history of the
violation. Id. at 672.
Reid v. Sec'y, Fla. Dep't of Corr., 486 F. App'x 848, 852 (11th
Cir. 2012).
In this case, Plaintiff claims that there was a widespread
history of unjustified, excessive uses of force by officers at SCI
from 2013 to February, 2014, and Defendant Landrum failed to take
"therapeutic measures" to prevent the continued use of improper and
excessive force by corrections officers at that institution, giving
rise to the incident which occurred on February 25, 2014.
Complaint at 7.

Amended

Construing the Amended Complaint liberally, as

this Court must, there is facial plausibility as to an Eighth
Amendment claim against Defendant Landrum.

Indeed, Plaintiff has

pled "enough facts to state a claim to relief that is plausible on
Twombly, 550 U.S. at 570.

its face."

Therefore, Defendant

Landrum's Motion to Dismiss is due to be denied.
Therefore, it is now
ORDERED:
1.

Plaintiff withdraws his claim against Defendant Julie

Jones, Secretary, Florida Department of Corrections; therefore,
Defendant

Julie

Jones,

Secretary,

Florida

Corrections, is hereby DISMISSED from this action.
- 23 -

Department

of

2.

Defendants' [Certain, Hale, Miara, Nunley, and Sievers]

Motion to Dismiss Amended Complaint (Doc. 27) is GRANTED to the
extent the claims of excessive force raised against them for what
occurred in the sally-port area of the O dormitory are found to be
Heck-barred and are dismissed without prejudice.

As such, these

claims against Defendants Certain, Hale, Miara, Nunley, and Sievers
are DISMISSED without prejudice to Plaintiff's right to refile his
claims against them under 42 U.S.C. § 1983 when Plaintiff can
demonstrate that the disciplinary reports have been overturned.
Defendants' [Certain, Hale, Miara, Nunley, and Sievers] Motion to
Dismiss Amended Complaint (Doc. 27) is also GRANTED with respect to
the verbal abuse claim raised against Defendant Nunley, and that
claim is DISMISSED.
3.

Defendants' [Certain, Hale, Miara, Nunley, and Sievers]

Motion to Dismiss Amended Complaint (Doc. 27) is DENIED with
respect to the claims of excessive force raised against them for
actions that allegedly occurred after Plaintiff exited the O
dormitory at SCI.

Defendants Certain, Hale, Miara, Nunley, and

Sievers shall respond to these particular allegations of excessive
force contained within the Amended Complaint by December 28, 2016.
4.

Defendant Landrum's Motion to Dismiss Amended Complaint

(Doc. 36) is DENIED.

Defendant Landrum shall respond to the

Amended Complaint by December 28, 2016.

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DONE AND ORDERED at Jacksonville, Florida, this 27th day of
October, 2016.

sa 10/26
c:
Brian Thomas Merrill
Counsel of Record

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