Judith Walton v. Reddish et al
Filing
137
ORDER denying 98 Defendant Norman's Motion for Summary Judgment; denying 100 Defendant Allen's Motion for Summary Judgment; granting in part and denying in part 114 Defendant Criswell's Motion for Summary Judgment; granting i n part and denying in part 117 Defendants FDOC, Reddish, Ellis, and Swain's Motion for Summary Judgment; see order for details; the deadlines set forth in this Court's April 1, 2020 Order 134 remain in effect. Signed by Judge Brian J. Davis on 9/3/2020. (KLC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JUDITH WALTON, as Personal
Representative for the ESTATE
OF FRANK SMITH, on behalf of the
Estate and Survivor Judith Walton,
Plaintiff,
v.
Case No. 3:16-cv-1130-J-39JRK
FLORIDA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
__________________________________
ORDER
I. Status & Background
Plaintiff, Judith Walton, as personal representative of her
son Frank Smith’s estate, is proceeding on a
Fourth Amended
Complaint (Doc. 62; FAC) filed by counsel. Plaintiff asserts
individuals
at
Union
Correctional
Institution
(UCI)
violated
Smith’s constitutional rights on July 3, 2012, resulting in Smith’s
death two months later.
Before the Court are the following motions: (1) Defendant
Norman’s Motion for Summary Judgment (Doc. 98; Norman Motion); (2)
Defendant Allen’s Motion for Summary Judgment (Doc. 100; Allen
Motion); Defendant Criswell’s Motion for Summary Judgment (Doc.
114;
Criswell
Motion);
and
Defendants
Florida
Department
of
Corrections (FDOC), Reddish, Ellis, and Swain’s Motion for Summary
Judgment (Doc. 117; FDOC Motion). Plaintiff has responded to the
motions (Doc. 124; Pl. Norman Resp.)1 (Doc. 125; Pl. FDOC Resp.)
(Doc. 126; Pl. Criswell Resp.).2
II. Summary Judgment Standard
Under Rule 56, “[t]he court shall grant summary judgment 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.” Fed. R. Civ. P. 56(a). An issue is genuine when the
evidence is such that a reasonable jury could return a verdict in
favor of the nonmovant. Mize v. Jefferson City Bd. of Educ., 93
F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville
Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A] mere
scintilla
of
evidence
in
support
of
the
non-moving
party’s
position is insufficient to defeat a motion for summary judgment.”
Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243,
1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986)).
The party seeking summary judgment bears the initial burden
of demonstrating to the court, by reference to the record, that
there are no genuine issues of material fact to be determined at
Plaintiff responded to Defendants Norman’s and Allen’s
motions together.
1
Plaintiff provides exhibits with all responses, but most of
the exhibits are appended to Plaintiff’s response to Defendants
Norman’s and Allen’s motions. Page numbers of all exhibits,
including deposition transcripts, are those assigned by the
Court’s electronic docketing system.
2
2
trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th
Cir. 1991). The record to be considered on a motion for summary
judgment
stored
may
include
information,
(including
those
“depositions,
affidavits
made
for
or
documents,
electronically
declarations,
purposes
of
the
stipulations
motion
only),
admissions, interrogatory answers, or other materials.” Fed. R.
Civ. P. 56(c)(1)(A).
“When a moving party has discharged its burden, the nonmoving party must then go beyond the pleadings, and by its own
affidavits, or by depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there
is a genuine issue for trial.” Jeffery v. Sarasota White Sox,
Inc., 64 F.3d 590, 593–94 (11th Cir. 1995) (internal citations
and quotation marks omitted). Substantive law determines the
materiality of facts, and “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Anderson, 477
U.S.
at
248.
appropriate,
a
In
determining
court
“must
whether
view
all
summary
evidence
judgment
and
make
is
all
reasonable inferences in favor of the party opposing summary
judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.
1995) (citing Dibrell Bros. Int’l, S.A. v. Banca Nazionale Del
Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994)).
3
III. Plaintiff’s Allegations3 & Claims
Plaintiff alleges Defendant Criswell used excessive force
against
Smith,
a
mentally
disabled
inmate,
during
a
medical
transport from Shands Hospital to UCI’s movement center on July 3,
2012. See FAC at 4, 6. Plaintiff alleges Defendants Norman and
Allen used excessive force against Smith inside the movement center
at UCI, causing injuries an emergency medical technician likened
to those suffered by a car wreck victim. Id. at 7-9, 10. Plaintiff
alleges Defendants Reddish, Ellis, Swain, and Allen participated
in a plan to cover up the force incidents, including hiding or
destroying
evidence,
assisting
officers
in
completing
their
incident reports, failing to follow protocol, and withholding
information from emergency medical technicians and investigators.
Id. at 9-11.
Plaintiff asserts six causes of action. Counts I through III
(state wrongful death, common law conspiracy, and conspiracy under
42 U.S.C. § 1983) are against Defendants Criswell, Allen, Norman,
Ellis, Swain, and Reddish. Count IV is an excessive force claim
against Defendants Allen, Criswell, and Norman. Count V is a
deliberate indifference claim against Defendants Reddish, Ellis,
Swain, and Allen. Count VI is a discrimination claim against the
Plaintiff’s allegations are fully set forth in this Court’s
May 14, 2019 Order (Doc. 75).
3
4
FDOC
under
the
Americans
with
Disabilities
Act
(ADA)
and
Rehabilitation Act (RA).
IV. Analysis & Conclusions
A. Timeliness of Constitutional Claims (Counts III through VI)
All Defendants argue Plaintiff’s constitutional claims are
time-barred.4 Defendants assert Plaintiff’s claims accrued in early
July
2012,
either
on
thereafter,
making
her
the
day
of
September
the
6,
incidents
2016
or
complaint
shortly
untimely.
Defendant Criswell argues Plaintiff’s cause of action accrued on
the day of the alleged incidents, July 3, 2012, because Smith, as
the person against whom forced allegedly was used, knew his rights
had been infringed. See Criswell Motion at 10-11.
To show Plaintiff’s constitutional claims accrued on July 3,
2012,
Defendant
Criswell
cites
a
six-minute
sworn
statement
Inspector Whatley of the Inspector General’s Office obtained from
Smith on August 21, 2012 (Doc. 115-1; Criswell Ex. 1).5 According
to medical records (Doc. 115-3; Criswell Ex. 2A), at the time of
the interview, Smith was a ventilator-dependent quadriplegic who
In ruling on Plaintiff’s motion for reconsideration, the
Court found Plaintiff showed there was a genuine issue of material
fact as to when Plaintiff’s claims accrued, based in part of the
declarations of Plaintiff and her daughter, Kimberly Walton. See
Order (Doc. 61). Defendants re-assert their timeliness arguments,
citing the deposition transcripts of Plaintiff and her daughter.
4
Defendant Criswell’s exhibits are designated by number, as
set forth in his notice of filing exhibits (Doc. 115).
5
5
had sustained brain and spinal cord trauma. See Criswell Ex. 2A at
2. In a case summary report prepared by the office of the Inspector
General (Doc. 124-5; Pl. Norman Resp. Ex. 5), Inspector Fish wrote,
“A medical note from August 21, 2012 documents inmate Smith was
‘alert to person and place only’ and [could] . . . ‘answer[] simple
questions.’” See Pl. Norman Resp. Ex. 5 at 11. Inspector Fish
reviewed the sworn statement and noted, “it was extremely difficult
to decipher what was being said by Inmate Smith in portions of the
interview.” Id.
The
August
21,
2012
interview
transcript
shows
Smith’s
physical and mental conditions were limited. Smith was confused
and unable to articulate his thoughts. In fact, Smith said he
preferred
responding
to
questions
rather
than
providing
a
narrative description of what happened. See Criswell Ex. 1 at 56.6
Many of Smith’s responses were unclear and suggested an
inability to comprehend or accurately recall past events. He
admitted banging his head on the plexiglass divider inside the
van, and he said, “the officer hit me.” Id. at 6. But, when
Inspector Whatley later asked him if the officers hit him, Smith
When later interviewed by an agent with the Florida
Department of Law Enforcement (FDLE) (Doc. 124-13; Pl. Norman Resp.
Ex. 13), Inspector Whatley conceded some of his questions to Smith
were
“leading”
because
“Smith
was
having
trouble
talking/communicating” and his speech was slurred. See Pl. Norman
Resp. Ex. 13 at 3.
6
6
said “I don’t -- no -- well, no. In a way they did . . . no, really
body slam -- try to kill me or something.” Id. at 8.
While Smith said someone in the transport van tried to kill
him, no version of the facts the parties offer supports such a
characterization. Defendant Criswell testified at his deposition
(Doc. 106-1; Criswell Dep.)
that he held Smith down and “applied
his EID7 to Smith’s leg.” See Criswell Dep. at 31. Defendant Hough,
at
his
deposition
(Doc.
110-1;
Hough
Dep.),
testified
that
Defendant Criswell also used some knee strikes. See Hough Dep. at
43. Even if Defendant Criswell used some knee strikes against
Smith, reasonable people would not describe Defendant Criswell’s
actions as an attempt to kill Smith.
Additionally, Smith said he did not recall anything after he
fell inside the movement center, see Criswell Ex. 1 at 10-11, but
the evidence permits the reasonable inference that force was used
against Smith after he fell.8 For example, Plaintiff’s expert Dr.
Kris L. Sperry (Doc. 115-19; Criswell Ex. 8A) opines that Smith’s
spinal injury was not caused by his fall. See Criswell Ex. 8A at
7. Dr. Sperry concludes, “[t]his type of fall . . . would not
produce the vertebral and spinal cord injury.” Id. Nor were Smith’s
“EID” stands for electronic immobilization device. See
Criswell Dep. at 31.
7
Smith’s inability to recall events after the fall makes
sense given FDOC officials, including Defendants, described Smith
as being unconscious and unresponsive after he fell.
8
7
spinal
injuries
caused
by
anything
that
happened
inside
the
transport van, according to Dr. Sperry. Id. at 8. Dr. Sperry opines
Smith’s “severe vertebral and spinal cord injury . . . was caused
when [Smith] was struck or kicked with great force on the back of
the neck.” Id.
Accepting as true that something sinister happened to Smith
inside the movement center after he fell, Smith’s inability to
recall those events contradicts an argument Smith was aware of his
rights being infringed that day. Even Inspector Whatley, who
personally interviewed Smith, doubted Smith’s explanation that his
injuries were self-inflicted. See Pl. Norman Resp. Ex. 13 at 8.
Inspector Whatley explained to an FDLE agent that he asked the
medical examiner to send Smith’s spinal cord for additional testing
because Whatley did not want to “miss anything.” Id. Whatley
acknowledged Smith said his injuries were self-inflicted, but
Whatley said, “I didn’t know exactly what happened. I know what he
[Smith] told me. But you also don’t know what happened to end up
then and the [unintelligible] itself.” Id.
Upon
review
of
Smith’s
August
21,
2012
interview,
and
considering Smith’s physical and mental conditions at the relevant
time, the Court finds Smith was not “a person with a reasonably
prudent regard for his rights” such that the cause of action
accrued on July 3, 2012. See Mullinax v. McElhenney, 817 F.2d 711,
716 (11th Cir. 1987) (“In Section 1983 cases, the statute [of
8
limitations] does not begin to run until the facts which would
support a cause of action are apparent or should be apparent to a
person with a reasonably prudent regard for his rights.” (internal
quotation marks omitted) (alteration in original)).
To the extent Plaintiff’s claims did not accrue on July 3,
2012, Defendants assert Plaintiff was on notice of a claim shortly
after Smith was hospitalized but before he died on September 4,
2012. See Norman Motion at 10; Allen Motion at 11; Criswell Motion
at 12-13; FDOC Motion at 10-11. To show Plaintiff was on notice of
a cause of action as early as July 2012, Defendants primarily rely
on Plaintiff’s and Kimberly Walton’s deposition testimonies (Doc.
107-1; Kimberly Dep.) (Doc. 108-1; Plaintiff Dep.).
In their depositions, Plaintiff and Kimberly testified they
doubted Smith’s injuries were self-inflicted. Plaintiff testified,
“I didn’t believe he did nothing like that to himself.” See Pl.
Dep. at 26. However, Plaintiff did not know what could have caused
Smith’s injuries. Id. Kimberly testified she did not believe Smith
harmed himself because she had never heard of Smith injuring
himself in the past. See Kimberly Dep. at 25. She testified,
“[t]his is not my brother who they are portraying to say he selfinflicted, or whatever.” Id. at 32.
Kimberly further testified that she and Plaintiff contacted
an attorney “[r]ight away,” after hearing her brother had been
hospitalized. Id. at 33. According to Kimberly, she went through
9
a lot of “red tape” to schedule a visit with Smith, so she and her
mother contacted an attorney for help. Id. at 30, 64. She explained
as follows:
[W]hat really pushed me to call [the attorney]
is the fact that they wouldn’t give me a visit.
They shut me down. Me, my dad, everybody was
trying to, you know, be cordial. We like,
okay, can we see him? . . . . Everything was
no. You know, they shut us down.
. . . .
A friend of mines (sic) an attorney that was
able to call him up, and find out what was
going on. And that’s when the investigation
started.
We
started
investigating
what
happened to him. What -- Why is it that we
can’t see him? What is the problem? I. Mean
[sic], we on a visiting list. Why we can’t see
him [sic]?
Id. at 33-34. Kimberly also acknowledged having spoken to doctors
and a social worker when Smith was hospitalized. Id. at 43, 4445, 47, 49, 53-54.
Accepting that Plaintiff and Kimberly doubted Smith could
have caused his own injuries, the evidence suggests any immediate
investigatory steps they could have taken would not have revealed
anything other than that Smith’s injuries were self-inflicted.
Significantly, only a few prison employees knew what happened to
Smith on July 3, 2012, and the officers who completed incident
reports (Doc. 126-1; Pl. Criswell Resp. Ex. 1) said Smith banged
his head inside the transport van, prompting Defendant Criswell to
use some force, and then Smith fell or collapsed inside the
10
movement center. See Pl. Criswell Resp. Ex. 1 at 1-2, 13-14, 15,
18, 23, 25. The nurse who evaluated Smith at the movement center
even noted Smith “head butted the window” during transport. Id. at
7.
Upon review of the medical notes documenting conversations
between hospital personnel and Kimberly (Doc. 115-9; Criswell Ex.
2G), no one at the hospital spoke to Kimberly about the cause of
Smith’s injuries. The notes indicate medical personnel updated the
family
on
Smith’s
medical
condition,
requested
consent
for
treatment, and responded to Kimberly’s frequent requests to visit
Smith. See Criswell Ex. 2G at 5-11.
Even if medical staff had discussed with Kimberly how Smith
was injured, they would only have been able to report what they
knew, which is that Smith injured himself. For instance, in a
progress note dated July 8, 2012, Dr. Chou wrote Smith was in the
hospital “s/p [status post] self-inflicted head injury breaking a
car window.” Id. at 2.9 If medical providers were told Smith’s
injuries were self-inflicted, and all UCI records reported the
At the time of Dr. Chou’s evaluation, Smith was intubated,
“largely unresponsive,” and “unable to participate.” See Criswell
Ex. 2G at 2. Thus, the only source of information about Smith’s
injuries could have been those who transported Smith to Shands or
UCI employees. According to the FDLE investigative report (Doc.
124-1; Pl. Norman Resp. Ex. 1), the emergency medical technicians
(EMTs) who responded to the call at UCI on July 3, 2012, were
informed “Smith had ‘beat his head’ inside a transport van.” See
Pl. Norman Resp. Ex. 1 at 75.
9
11
same, it is unclear how or why Smith’s family could have been able
to learn otherwise even if they had subjective doubts about Smith’s
capacity to harm himself.
Kimberly’s
comment
that
she
and
her
family
started
investigating after contacting an attorney, considered in context,
suggests the family was investigating how to schedule a visit with
Smith.10
See
Kimberly
Dep.
at
33-34.
There
is
no
indication
Plaintiff or Kimberly asked the attorney to investigate Smith’s
injuries or the events preceding his hospitalization. And, as
mentioned above, any inquiries Plaintiff could have made between
July 2012 and September 2012, would have been directed to the FDOC
and UCI, whose records showed Smith banged his head and fell.
Plaintiff and Kimberly would have discovered no records that
indicated prison guards used such force against Smith as to cause
the spinal cord injury that caused his quadriplegia and ended his
life.
Indeed, it appears the first time anyone suggested Smith’s
fatal injuries may not have been self-inflicted was after Smith
The medical records confirm Kimberly’s frequent requests
to visit her brother. On July 11, 2012, Kimberly asked Dr.
Chakraborty about visiting, and the doctor referred Kimberly to
someone else to find out “if visits [are] even possible.” See
Criswell Ex. 2G at 5. The next day, a social worker left a voicemail
for Kimberly, giving her the name and telephone number of a
supervisor of classification at UCI to schedule a visit with Smith.
Id. at 6. On July 12, 2012, Kimberly spoke with another doctor and
again asked about visiting her brother. Id.
10
12
died. For instance, the medical examiner reported to an FDLE agent
in about April 2013 that she could not say Smith’s injuries were
self-inflicted. See Pl. Norman Resp. Ex. 1 at 32. The medical
examiner reported being concerned by “the lack of identification
of any particular mechanism of Smith’s injury.” Id. In October
2014, the medical examiner sent her report to the FDLE. Id. at 8.
The
medical
examiner
“undetermined,”
and
classified
noted
that
Smith’s
manner
“[a]lthough
the
of
death
as
circumstances
surrounding Mr. Smith’s injuries and death have been thoroughly
investigated, the precise mechanism(s) of injuries is not clear.”
Id.
A suggestion that officers used force against Smith inside
the movement center did not surface until nearly two years after
the incident. In an interview summary dated April 28, 2014, an
FDLE agent reported that Sergeant Cagle recalled hearing “rumors
about what had actually occurred” inside the movement center. Id.
at 43. Sergeant Cagle said, “I heard the use of force was when
they
[the
transport
officers
and
Smith]
got
back
to
the
institution,” and Cagle said he believed the officer who used force
was “[w]hoever was waiting in the [m]ovement [c]enter at UCI.” Id.
On May 12, 2014, an FDLE agent reported that another officer also
heard “rumors” about a use of force occurring at the movement
center. Id. at 48.
13
It
appears
the
earliest
Plaintiff
could
have
suspected
Smith’s injuries may not have been self-inflicted was when the
FDOC issued press releases the month after Smith died (Doc. 1246; Pl. Norman Resp. Ex. 6). In October 2012, the FDOC announced
the Inspector General’s office had opened several investigations
related to “recent use of force incidents” at UCI and that some
staff members were placed on administrative leave. See Pl. Norman
Resp. Ex. 6 at 1-2. In a press release dated October 8, 2012, the
FDOC
mentioned
investigation
Smith
and
as
one
of
identified
the
inmates
the
involved
employees
in
the
placed
on
administrative leave, including Defendants Allen and Ellis and
former Defendant Jeffcoat. Id. Even if these October 2012 press
releases should have put Plaintiff on notice of a possible cause
of action related to her son’s death, she filed her complaint less
than four years later, in September 2016.
For the above reasons, the Court finds there remain genuine
issues of material fact regarding whether Plaintiff timely filed
her constitutional claims. Thus, Defendants’ motions are due to be
denied on this issue.
B. Excessive Force & Deliberate Indifference Claims
i. Defendants Norman and Allen (Counts IV & V)
In Count IV, Plaintiff alleges Defendants Norman and Allen
violated Smith’s Eighth Amendment rights by using excessive force
against him or failing to intervene in the use of such force. See
14
FAC at 25-26. In Count V, Plaintiff alleges Defendant Allen was
deliberately indifferent to the uses of force against Smith by
ignoring Smith’s obvious injuries when he stepped out of the
transport van and by moving Smith via wheelchair when he was
unconscious. Id. at 27-28. Plaintiff also alleges Defendant Allen
was deliberately indifferent to “correctional officers’ tendency
to [use] excessive force against the inmates.” Id. at 27.11
Both Norman and Allen invoke qualified immunity, contending
Plaintiff
fails
to
demonstrate
the
violation
of
a
clearly
established right. See Norman Motion at 8-9; Allen Motion at 910. Defendants point to no record evidence, however, to support
their arguments. Rather, they both simply conclude the “[f]acts
and discovery developed to date” do not show excessive force was
used against Smith or the violation of a constitutional right by
Norman or Allen. See Norman Motion at 9; Allen Motion at 10. On
summary judgment, Defendants have the burden to “show there is no
genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a).
They
must
point
to
evidence
in
the
record
supporting
their
positions. See Clark, 929 F.2d at 608. Defendants’ simple reference
to “[f]acts and discovery,” with no direct references to the record
This latter allegation the Court addresses below because
Plaintiff asserts this allegation against Defendants Reddish,
Ellis, Swain, and Allen collectively.
11
15
and no explanation, is insufficient to carry their burden on
summary judgment.
Moreover, Plaintiff offers evidence suggesting Smith’s spinal
cord injury was caused by an assault that occurred inside the
movement center when Smith was under the control of Defendants
Allen and Norman. Plaintiff’s expert Dr. Sperry opines that Smith’s
spinal injury was not caused by him falling, which is the only
explanation Defendants Allen and Norman offer as to what happened
inside the holding cell. See Criswell Ex. 8A. at 7. Plaintiff’s
other expert, Aubrey Land (Doc. 124-3; Pl. Norman Resp. Ex. 3), a
law enforcement, prison, and jail consultant, concludes Smith “was
physically abused by correctional staff or in the presence of
correctional staff while in the holding cell.” See Pl. Norman Resp.
Ex. 3 at 13.
Aside from Plaintiff’s experts’ opinions, there is other
evidence suggesting someone used force against Smith inside the
movement center. For instance, the medical examiner told an FDLE
agent
her
findings
were
hard
to
“reconcile
with
events
as
described” by the officers and Smith’s appearance in the video.
See Pl. Norman Resp. Ex. 1 at 32. Additionally, two officers told
an FDLE agent they heard “rumors” that force had been used against
Smith inside the movement center. Id. at 43, 48.
As to the deliberate indifference claims against Defendant
Allen, Aubrey Land opines Defendant Allen acted willfully and
16
recklessly by not summoning medical care for Smith both when he
exited the transport van and was “a little wobbly on his feet,”
Allen Dep. at 36, and after he fell in the holding cell. See Pl.
Norman Resp. Ex. 3 at 12. As to the more serious injury Smith
sustained, Land concludes Defendant Allen “acted with reckless
disregard for Mr. Smith’s safety by moving him in a wheelchair”
when Smith was unable to move on his own and had an “obvious head
injury.”
Id.
According
to
Land,
“It
is
beyond
correctional
comprehension that Mr. Smith was transported in a wheelchair and
medical professionals were not summoned to his aid prior to moving
him.” Id. at 10.
According to Dr. Sperry, a video of Smith sitting in the
wheelchair shows he was obviously unconscious. See Criswell Ex. 8A
at 4. A photo of Smith in the wheelchair shows his head hanging
back unnaturally (Doc. 125-2; Pl. FDOC Resp. Ex. 1). Even Defendant
Norman told an FDLE agent (Doc. 124-9; Pl. Norman Resp. Ex. 9)
that, when Smith was being pushed from the movement center to the
medical unit, his feet kept dragging on the concrete to the point
where his socks ripped and his feet bled. See Pl. Norman Resp. Ex.
9 at 7. See also Pl. Norman Resp. Ex. 1 at 62.
Construing the facts in the light most favorable to Plaintiff,
the evidence permits the reasonable inference that Defendants
Allen and Norman used unnecessary force against Smith inside the
holding cell causing a severe spinal injury and that Defendant
17
Allen was deliberately indifferent to Smith’s obvious injuries. If
true,
such
established
conduct
amounts
constitutional
to
the
right.
violation
Thus,
of
Defendants
a
clearly
Allen
and
Norman are not entitled to qualified immunity as to the claims
against them in Counts IV and V.
ii. Defendant Criswell (Count IV)
In
Count
IV,
Plaintiff
alleges
Defendant
Criswell
used
excessive force against Smith inside the transport van. See FAC at
25. Defendant Criswell argues Plaintiff fails to present evidence
that he used force against Smith other than that “applied in a
good-faith effort to maintain or restore discipline.” See Criswell
Motion at 14, 17. According to Criswell, he “made the discretionary
decision to use force because he feared that Smith would seriously
injure himself if not restrained.” Id. at 15. Criswell maintains
that any injuries he caused Smith were de minimis because he says
he only used his EID on Smith’s right leg and held Smith down. Id.
at 18, 20. Criswell denies having punched or kicked Smith. Id. at
18.
Contrary to Defendant Criswell’s description of events, the
other
officer
assigned
to
the
transport
van,
Officer
Hough,
reported Defendant Criswell used “several knee strikes” against
Smith. See Pl. Norman Resp. Ex. 1 at 57. Given the dispute
regarding the extent of force Defendant Criswell exerted during
transport, there remain genuine issues of material fact regarding
18
whether Defendant Criswell used more force than necessary to
respond to Smith’s conduct inside the transport van. Accordingly,
Defendant Criswell is not entitled to summary judgment on Count
IV.
iii. Defendants Ellis, Reddish, Swain, and Allen (Count V)
In Count V, Plaintiff alleges Defendants Ellis, Reddish,
Swain, and Allen were deliberately indifferent to the use of
excessive force against inmates generally and against Smith on
July 3, 2012. See FAC at 27.
a. Deliberate Indifference to Force Incidents Generally
As to uses of force against inmates generally, Plaintiff
alleges
Defendant
Reddish,
in
his
role
as
the
warden,
and
Defendants Ellis and Swain, as officers-in-charge (OIC) of Smith’s
dorm (T-dorm), “were aware of the correctional officers’ tendency
to
[use]
excessive
force
against
the
inmates,”
and
were
deliberately indifferent to the officers’ conduct. Id. Plaintiff
alleges,
“Defendants
facilitating
the
use
maintained
of
a
practice
excessive
force
of
and
arranging
or
suppressing
investigations of misconduct, altering, suppressing or destroying
evidence or ordering others to do the same.”12 Id.
It is unclear whether Plaintiff also asserts Defendant
Allen was deliberately indifferent to correctional officers’ use
of force against inmates. See FAC at 27. In paragraph 202,
Plaintiff identifies only Reddish, Ellis, and Swain, as those
Defendants to whom Count V is directed. Id. Plaintiff says, the
“aforementioned Defendants [Reddish, Ellis, and Swain] evinced
12
19
Agents with the FDLE interviewed several inmates to determine
whether officers had used force against Smith or otherwise abused
him before June 26, 2012, which is the last day Smith was housed
at UCI.13 Inmate Lester Williams said officers abused Smith by not
feeding him at every meal. See Pl. Norman Resp. Ex. 1 at 20.
Williams also reported he thought officers had beaten Smith over
the course of several days before he was found unresponsive on
June 26, 2012, but Williams did not see the beating, nor could he
identify officers who may have been involved. Id.
Inmate Allen Ballard did not know of incidents involving Smith
but reported that a different inmate had died because officers
refused to feed him. Id. at 26. Inmate Eugene Washington said he
was in Smith’s dorm on June 26, 2012. Id. at 29. Washington was
deliberate indifference to constitutional rights of inmates”
because they “were aware of the correctional officers’ tendency to
[use] excessive force against the inmates” and facilitated the use
of force or suppressed evidence of force incidents. Id. ¶¶ 203-06
(emphasis added). But in paragraph 207, Plaintiff includes
Defendant Allen in the enumerated list of conduct Plaintiff
maintains shows Defendants were deliberately indifferent to
Smith’s health and safety on July 3, 2012. Id. ¶207(a)-(k). To the
extent Plaintiff seeks to hold Defendant Allen liable for his
alleged use of excessive force against Smith on July 3, 2012, and
for Allen’s deliberate indifference to Smith’s injuries, those
claims proceed as addressed above.
On June 26, 2012, Smith was found unresponsive in his cell
and transported to Shands hospital (Doc. 115-7; Criswell Ex. 2E).
Smith was discharged from Shands on July 3, 2012, the day of the
incidents that are the basis of the complaint. See Criswell Ex. 2E
at 2-3. There is no direct evidence Smith’s condition on June 26,
2012, was caused by Defendants or any staff member at UCI.
13
20
awakened by an inmate yelling “staff abuse,” but Washington did
not see anything other than officers dragging an inmate out of his
cell. Id. Washington also provided an account of officers attacking
him (Washington) but reporting he had tried to harm himself. Id.
Inmate Marcellas Harris also gave a sworn statement (Doc.
124-12; Pl. Norman Resp. Ex. 12). Harris said officers used force
against Smith on June 26, 2012, and he saw Defendant Criswell slap
Smith on one occasion. See Pl. Norman Resp. Ex. 12 at 3. While a
bit unclear, Harris said he believes Criswell and Norman “beat”
Smith inside his cell one day (not June 26, 2012). Id. at 5-6.
Harris identified pictures of other officers he said had beaten
Smith and other inmates over the years. Id. at 6-9. Harris said
numerous officers were known to “beat [inmates] good,” and he said
the nurse “fabricate[d] the paperwork to justify an incident,”
such as recording that an inmate tried to harm himself. See Pl.
Norman Resp. Ex. 1 at 34-35.
One
of
the
officers
Harris
identified
as
“physically
beat[ing]” inmates was Defendant Swain. See Pl. Norman Resp. Ex.
12 at 2-3.14 Harris also described an incident in 2010 in which
Inmate Harris also identified Defendant Allen by
photograph, but Harris denied having had knowledge of Allen harming
Smith. See Pl. Norman Resp. Ex. 12 at 10. The FDLE agent did not
ask whether Allen was known to beat other inmates because the agent
was focused solely on incidents involving Smith. Id. Inmate Harris
did not say whether Defendant Allen knew other officers had harmed
Smith or other inmates. Id.
14
21
officers (Jenkins and Bell) handcuffed Smith and took him to the
“TV room” in T-dorm, where there are no cameras and a screen covers
the door. Id. at 5. Harris did not see what happened because the
screen blocked the door, but he believes the officers beat Smith:
he heard Smith yelling, “Stop. Leave me alone. . . . Help,” and
Smith was crying and bleeding when he exited the room. Id. at 4.
Harris said, “the lieutenant that was working that day was Swain.”
Id. at 11.
Accepting as true that Defendant Swain was one of the officers
known to beat mentally ill inmates and allowed the nurse to
fabricate paperwork, and accepting the inference that Swain knew
other
officers
did
the
same,
Plaintiff
provides
just
enough
evidence to create a genuine issue of material fact as to whether
Swain was deliberately indifferent to “correctional officers’
tendency to [use] excessive force against the inmates.” See FAC at
27.
However,
none
of
the
inmates
reported
that
Defendants
Reddish, Ellis, or Allen participated in or were present during
any
of
provides
the
no
incidents
they
use-of-force
mentioned.
reports,
Additionally,
grievance
Plaintiff
records,
or
disciplinary records indicating Defendants Reddish, Ellis, and
Allen were subjectively aware that certain officers tended to use
gratuitous force against the inmates or that inmates regularly
complained about such conduct. In fact, if true that the nurse
22
helped
some
officers
conceal
wrongdoing,
supervisors
such
as
Reddish, Ellis, and Allen may not have known officers were behaving
badly.
Moreover,
at
his
deposition
(Doc.
112-1;
Reddish
Dep.),
Defendant Reddish denied having had knowledge that inmates faced
a significant risk of harm at the hands of officers. See Reddish
Dep. at 22. He acknowledged there were some severe injuries to
inmates around the time Smith was injured, but he did not recall
specific
incidents
of
officers
tormenting
inmates
or
using
gratuitous force against them. Id. at 22. He also said he did not
have any concerns that Defendant Ellis allowed officers to use
excessive force against inmates who exhibited “problem behavior.”
Id. at 27. Plaintiff’s counsel engaged Defendant Reddish in the
following exchange at deposition:
Q:
2012, is it fair to say that that
was an extremely active year for severe uses
of force?
A:
Yeah, I’m not -- could you be more
specific as to what you mean by severe use of
force?
Q:
Yes, I can. Of course there was some
press about this at the time, but I believe
that the same day that Frank Smith was being
transported, another inmate, Leslie Smith, was
apparently also at Shands, and he ended up
with severe brain damage.
Another inmate, Ronnie Daniels, had
severe hypothorax (sic). They thought he was
going to die.
23
I think that the press clippings have the
names of some other inmates. I don’t know
necessarily the whole story, but Rudolph Rowe,
Christopher
Arnold,
Willie
Knight,
all
apparently severe beatings, and, of course,
Frank Smith died. Leslie Smith got severe
brain damage, and Ronnie Daniels almost died.
Was that not a kind of blip on the radar?
Wasn’t that unusual?
A:
Any time there’s severe injuries to
inmates, that’s something that’s of concern
and something that’s going to be scrutinized.
Q:
Okay. And, obviously, that does
happen, but was it not -- did it not seem to
you to be anomalous?
A:
It was -- it was concerning.
Q:
Okay. . . . [D]id you feel like you
had some people on your staff who were a little
heavy-handed with the inmates?
A:
I did -- I had no reason to
specifically identify any staff that I thought
was acting inappropriately. If I had, then I
would have had a responsibility to report
those individuals to the Office of [the]
Inspector General for possible investigation.
Q:
Okay. But you just -- that wasn’t
apparent to you?
A:
It wasn’t apparent to me, no.
Id. at 15-17 (objections omitted). At most, Plaintiff’s counsel
established Defendant Reddish was concerned that other inmates
were seriously injured around the same time as Smith. However,
there is no evidence establishing the other incidents occurred
before the one involving Smith such that administrators were on
24
notice of a history of widespread abuse against inmates at UCI.15
Even more, Defendant Reddish denied knowing any officer or officers
tended to be “heavy-handed” with the inmates.
Upon review, Plaintiff provides no evidence that Defendants
Reddish, Ellis, or Allen knew officers tended to use excessive
force against inmates and condoned or concealed such conduct. “[T]o
defeat a motion for summary judgment, [the plaintiff] must adduce
specific evidence from which a jury could reasonably find in his
favor,” that is, that prison officials “harbored a subjective
awareness that [the plaintiff] was in serious danger.” See Goodman
v. Kimbrough, 718 F.3d 1325, 1332 (11th Cir. 2013). This, Plaintiff
has not done as to Defendants Reddish, Ellis, or Allen.
Even
if,
because
of
their
administrative
positions,
Defendants Reddish, Ellis, and Allen should have perceived that
officers were intentionally harming inmates, the Supreme Court has
explicitly
rejected
“an
objective
test
for
deliberate
indifference.” Farmer v. Brennan, 511 U.S. 825, 838 (1994) (“[A]n
official’s failure to alleviate a significant risk that he should
have perceived but did not, while no cause for commendation, cannot
under our cases be condemned as the infliction of punishment.”).
Plaintiff’s counsel provides no documentation regarding the
other alleged force incidents that occurred in 2012 and, indeed,
admitted when questioning Reddish that he did not know “the whole
story” involving those incidents. See Reddish Dep. at 16.
15
25
Accordingly, Defendants Reddish, Ellis, and Allen are entitled to
summary judgment on Count V to the extent Plaintiff seeks to hold
them
liable
for
deliberate
indifference
to
officers’
general
tendency to use excessive force against inmates.
b. Deliberate Indifference to Smith’s Injuries
As to Plaintiff’s theory that Defendants Reddish, Ellis,
Swain, and Allen were deliberately indifferent to Smith’s health
and safety on July 3, 2012, Plaintiff alleges as follows:
a) Ellis and Allen coordinated Smith’s return
with
Warden
Reddish
and
Jeffcoat,16
instructing control not to log in the
returning inmate in order to obscure
timelines while a “lesson” was taught to
Smith.
b) Ellis learned of the breach and use of force
but failed to order a video camera as
required by the rules until after the
“lesson” had been taught.
c) Ellis, Swain, and Allen pretended Smith was
not seriously injured by putting him in a
wheelchair instead of calling medical for a
stretcher.
d) Ellis and Swain, arriving and departing
Officers in Charge, failed to call the
Emergency Action Center (EAC) as required
by protocol.
e) Ellis and Swain failed to notify
Inspector as required by protocol.
the
f) Ellis and Swain passed on to EMS that Smith
banged his head in the van[.]
16
Nan Jeffcoat is no longer a Defendant.
26
g) Reddish, Jeffcoat, Ellis, Swain and Allen
encouraged or ordered EMS and corrections
staff not to report the obvious beating
injuries.
h) Reddish, Ellis, and Swain, [sic] ordered
and permitted evidence, including blood, to
be cleaned up before an investigation could
take place.
i) Reddish, Ellis and Swain
witnesses to disperse.
allowed
j) Reddish and Jeffcoat ordered
investigation be halted.
that
the
the
k) Reddish and Jeffcoat arranged to ensure and
promise that there would be no discipline
of any officer for the injuries to Smith.
FAC at 27-28.
Defendants Reddish, Ellis, and Swain assert there is no
evidence
substantiating
Plaintiff’s
allegations
as
enumerated
above except for paragraph (e)—that Ellis and Swain failed to
notify the inspector, which they concede. See FDOC Motion at 16.17
Though Plaintiff provides numerous documents in support of her
response to the FDOC’s motion, she does not specify what evidence
in the record substantiates the enumerated allegations in Count V.
Instead, Plaintiff simply asserts the evidence shows a conspiracy,
“including the series of events that followed the ‘inspection’ of
the damaged van that suggests manipulation of events at the highest
The Court previously addressed Plaintiff’s claim that
Defendant Allen was deliberately indifferent to Smith’s condition
on July 3, 2012.
17
27
levels.” See Pl. FDOC Resp. at 14. Plaintiff also says Defendants
Reddish, Ellis, and Swain are not entitled to qualified immunity
because the evidence shows “Smith was gratuitously beaten in the
transport van or the Movement Center.” Id. at 15.
As
an
initial
matter,
to
the
extent
Plaintiff
asserts
Defendants Reddish, Ellis, and Swain are responsible for the
actions of others, such a theory of liability is not viable under
§ 1983. “It is well established in this Circuit that supervisory
officials are not liable under § 1983 for the unconstitutional
acts of their subordinates on the basis of respondeat superior or
vicarious liability.” Cottone v. Jenne, 326 F.3d 1352, 1360 (11th
Cir. 2003) (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.”
Id.
Supervisor
liability
arises
only
“when
the
supervisor
personally participates in the alleged constitutional violation or
when there is a causal connection between the actions of the
supervising official and the alleged constitutional deprivation.”
Mathews v. Crosby, 480 F.3d 1265, 1270 (11th Cir. 2007) (internal
quotation marks and citation omitted).
The evidence indisputably shows Defendants Reddish, Ellis,
and Swain were not involved in the force incidents against Smith
on July 3, 2012. Accepting that Defendants Allen or Norman used
force against Smith inside the movement center, there is no
28
evidence
Defendants
Reddish,
Ellis,
or
Swain
witnessed
it,
condoned it, or learned of it.
The
only
enumerated
allegation
in
Count
V
Plaintiff
substantiates with some evidence is the following: “Ellis, Swain,
and Allen pretended Smith was not seriously injured by putting him
in a wheelchair instead of calling medical for a stretcher.” See
FAC
at
28
(¶
207(e)).
Defendants
Ellis
and
Swain
did
not
participate in moving Smith by wheelchair; Defendants Allen and
Norman were the ones who placed Smith in the wheelchair, and
Officer Browning pushed it. See Pl. Norman Resp. Ex. 1 at 68, 72,
74. However, both Defendants Ellis and Swain saw Smith in the
wheelchair outside the movement center. Id. at 72; see also Swain
Dep. at 20. Defendant Swain testified at deposition that he saw
Smith “sitting up” in the wheelchair but did not notice Smith was
unresponsive. See Swain Dep. at 20, 22.
A jury confronted with the video and photographic evidence of
Smith in the wheelchair reasonably could conclude Defendants Ellis
and Swain had to have noticed Smith was unconscious or severely
injured. The still photo alone shows Smith’s head hanging back
unnaturally. See Pl. FDOC Resp. Ex. 2. Additionally, all who
reviewed
the
unconscious.18
video
concluded
Aubrey
Land
it
noted,
was
“Smith
apparent
is
Smith
observed
was
in
a
Plaintiff provided a copy of the audio recording only. The
Court has not received the video.
18
29
wheelchair with his head back in an unnatural position. His [mouth]
is open and no movement is observed.” See Pl. Norman Resp. Ex. 3
at 9. Land even emphasized (in italics and underlining): “Mr. Smith
displays no signs of movement or consciousness during any portion
of the video.” Id. at 10. Land found it “disturbing that trained
staff would move an injured inmate or any person in such manner.”
Id.
Dr. Sperry similarly noted, “On video, it is apparent that
Smith was unconscious.” See Criswell Ex. 8A at 4. Even the FDLE
agent commented, “[Smith] hardly looks alive in that video,” when
interviewing Inspector Whatley. See Pl. Norman Resp. Ex. 13 at 6.
Inspector
Whatley
noticed
Smith’s
feet
were
dragging
on
the
concrete during transport, and he wondered, while watching the
video, why the officers did not obtain a stretcher instead of a
wheelchair. Id.
While Defendants Ellis and Swain did not actively take part
in moving Smith, they both were at the movement center and saw
Smith in the wheelchair. There is also evidence that Defendant
Ellis may have seen Smith inside the movement center, moments after
he was placed in the wheelchair. In a sworn statement to the FDLE
(Doc. 124-10; Pl. Norman Resp. Ex. 10), Defendant Allen said
Defendant Ellis “walked back [to the holding cell] and verbally
informed
[Allen]
there
had
been
a
use
of
force”
inside
the
transport van. See Pl. Norman Resp. Ex. 10 at 14. Defendant Allen
30
could not recall whether Defendant Ellis appeared before or after
Smith fell, but he said it was probably after, or “about the time
[he and Norman] got [Smith] in the chair.”19 Id.
Viewing the facts in the light most favorable to Plaintiff
and
drawing
all
reasonable
inferences
in
her
favor,
a
jury
reasonably could conclude that officers with even limited first
aid training who saw Smith in the wheelchair would have appreciated
Smith’s condition and intervened. In fact, Aubrey Land concludes
the officers, including Defendants Ellis and Allen, “acted with
reckless disregard for Mr. Smith’s safety by moving him in a
wheelchair.” See Pl. Norman Resp. Ex. 3 at 12.
Aside
from
the
evidence
permitting
an
inference
that
Defendants Ellis, Swain, and Allen were deliberately indifferent
to Smith’s injuries (as addressed above), Plaintiff fails to point
to evidence substantiating the other allegations in Count V.
Because
these
allegations
are
also
relevant
to
Plaintiff’s
conspiracy claims, the Court will address them in turn.
First, as to paragraph 207(a) (the alleged failure to record
Plaintiff’s return to UCI), Plaintiff provides the control room
log for July 3, 2012 (Doc. 124-11; Pl. Norman Resp. Ex. 11). As
Contrary to Defendant Allen’s statement,
told an FDLE agent he stayed outside the movement
with Defendant Criswell when Defendants Allen and
Smith inside. See Pl. Norman Resp. Ex. 1 at 72.
said he next saw Smith “when Smith was wheeled out
center.” Id.
19
31
Defendant Ellis
center speaking
Norman escorted
Defendant Ellis
of the movement
Plaintiff contends, that log does not record Smith returned to UCI
at about 4:00 p.m. See Pl. Norman Resp. Ex. 11 at 1.20 But Plaintiff
fails to show the omission from the control log was intentional or
done at the direction of Defendants to hide or obscure Plaintiff’s
return to UCI. Additionally, the fact and time of Smith’s return
is apparent in countless other UCI records, which suggests there
was no conspiracy or plan to hide that information.
For instance, the vehicle log for July 3, 2012, documents
that D. Hough arrived at 4:05 p.m. in vehicle #8293, along with R.
Criswell and one unnamed inmate, which could only have been Smith.
See Criswell Dep. at 69. The UCI incident reports completed on
July 3, 2012 (Doc. 126-1; Pl. Criswell Resp. Ex. 1) also show Smith
returned to UCI sometime after his 2:55 p.m. discharge from Shands
but before 4:30 p.m.21 See Pl. Criswell Resp. Ex. 1 at 1 (Defendant
Criswell’s
report
noting
the
transport
van
left
Shands
at
approximately 3:45 p.m.); id. at 19-22 (reports by Shaffer and
Cagle noting they were in the “chase” vehicle following the van
carrying Smith (vehicle #8293), which left Shands at about 3:45
p.m.); id. at 25 (Defendant Norman’s report noting he met the
However, the log does record that Smith was “out by
permission to Shands” at about 5:00 p.m. Pl. See Norman Resp. Ex.
11 at 4.
20
A record from Shands shows Smith was discharged on July 3,
2012, at 2:55 p.m. (Doc. 126-2; Pl. Criswell Resp. Ex. 2).
21
32
transport van at the movement center at about 4:15 p.m.); id. at
18 (Officer Browning’s report noting he assisted Defendants Allen
and Norman escort Smith to the movement center at about 4:15 p.m.);
id. at 17 (Sergeant Coleman’s report noting he received a call at
about 4:25 p.m. to report to the movement center with a camera).
Second, as to paragraph 207(b) (Ellis’s alleged failure to
arrange
for
a
camera),
Plaintiff
offers
no
evidence
showing
Defendant Ellis knew a camera was necessary under the circumstances
known to him. Everyone involved in the events agrees Defendant
Ellis did not learn Defendant Criswell used force against Smith
until
after
Smith
was
escorted
inside
the
movement
center.
Defendant Criswell told an FDLE agent he was “not clear about
telling [Ellis] that [he] had used force,” and “Ellis was not
happy” about that. See Pl. Norman Resp. Ex. 1 at 80-81. At
deposition, Defendant Criswell testified he did not recall telling
Defendant Ellis he had used force against Smith until after Smith
was removed from the transport van. See Criswell Dep. at 41-42,
44.
Defendant Ellis’s incident report and his statement to the
FDLE are consistent with Defendant Criswell’s recollection. Ellis
said he first heard about Defendant Criswell’s use of force after
Defendants Allen and Norman escorted Smith to the holding cell
inside the movement center. See Pl. Norman Resp. Ex. 1 at 72; Pl.
Criswell Resp. Ex. 1 at 9, 10. Defendant Ellis reported as follows:
33
I was unaware that Sergeant Criswell had used
force on inmate Smith during the transport,
therefore, I did not instruct Lieutenant Allen
to video tape inmate Smith upon his return to
the institution. As soon as I was made aware
of force being used, I immediately instructed
Lieutenant Allen to begin videotaping.
Pl. Criswell Resp. Ex. 1 at 9.
Defendant Allen, who was the administrative lieutenant of
Smith’s
dorm,
similarly
reported
having
first
learned
about
Defendant Criswell’s use of force after the van returned. See Pl.
Criswell Resp. Ex. 1 at 14. At his deposition (Doc. 109-1; Allen
Dep.), Defendant Allen testified that Defendant Ellis instructed
him (Allen) to report to the movement center for an inmate’s return
to the institution. See Allen Dep. at 24. Allen did not recall
hearing there was a use of force, however; he heard only that a
window had been damaged. Id. at 14, 24, 33, 51. Allen’s sworn
statement to the FDLE was consistent with his deposition testimony
in this regard. See Pl. Norman Resp. Ex. 10 at 10.
Defendant Reddish, who reviewed and signed Defendant Ellis’s
incident report, noted he and other administrators were unaware
when the transport van returned to UCI that force had been used
during transport. See Pl. Criswell Resp. Ex. 1 at 9. Reddish noted,
“staff could have done a better job of communicating,” a topic he
said would be discussed at the next OIC meeting. Id. at 9-10. Even
Inspector Whatley, in his sworn statement to the FDLE, acknowledged
the “[officers] involved in the incident did not immediately notify
34
‘administration’ that ‘force had been used.’” See Pl. Norman Resp.
Ex. 1 at 51.
Fourth, as to paragraphs 207(b)-(e) (Defendants Ellis’s and
Swain’s admitted
failure to call the EAC or the inspector’s
office), Plaintiff offers no evidence showing Defendants Ellis or
Swain acted with deliberate indifference to Smith’s health or
safety or as part of an elaborate scheme to conceal what happened.
At most, the evidence permits the inference the omission was the
result of negligence given a change-in-shift occurred about the
time the transport van returned. See Pl. Norman Resp. Ex. 11 at 1
(noting a change in shift occurred at 4:00 p.m.). Defendant Swain
told an FDLE agent, “the scene was the responsibility of the day
shift Captain,” who was Defendant Ellis. See Pl. Norman Resp. Ex.
1 at 74. At the start of his shift, Swain asked Defendant Ellis if
he (Ellis) needed any assistance, and Ellis said “no.” Id. at 73.
Defendant Ellis concedes he did not notify the inspector’s office
of Smith’s injury, id. at 72, but there is no evidence he failed
to do so intentionally or with deliberate indifference to Smith’s
health
or
safety.
Additionally,
Plaintiff
shows
no
causal
connection between the failure to timely contact the EAC or the
inspector’s office and Smith’s injuries. The failure to contact
the EAC or the inspector’s office did not impede or delay the
provision of necessary medical care to Smith.
35
Finally, as to paragraphs 207(f)-(k) (Defendants’ alleged
actions to conceal evidence or frustrate investigations), there is
no evidence showing a genuine issue of material fact exists. For
instance, Plaintiff alleges Defendants Ellis and Swain lied to the
EMTs about what caused Smith’s apparent head injury and Defendants
Reddish, Ellis, Swain, and Allen told the EMTs not to report the
“obvious beating injuries.” See FAC at 28 (¶ 207(f), (g)). The
EMTs did in fact hear that Smith had “beat his head” inside the
transport van. See Pl. Norman Resp. Ex. 1 at 75-76. However, they
told an FDLE agent they could not recall who told them that. They
thought it may have been the prison nurse.
Id.
The only Defendants who could have spoken to the EMTs were
Allen and Norman, who, along with Officer Browning and the camera
operator, accompanied Smith to the medical unit.22 There is no
evidence Defendants Reddish and Ellis were present when the EMTs
arrived. Even if they had been, however, and they told the EMTs
Smith banged his head inside the transport van, there is no
evidence they had reason to believe otherwise given they did not
witness the events and were themselves told Smith banged his head.
Moreover, the EMTs, who were interviewed by an FDLE agent, did not
Notably, Plaintiff does not allege Defendant Allen told the
EMTs Smith had banged his head. See FAC at 27 (¶ 207(f)). However,
even if Defendant Allen spoke to the EMTs and omitted important
information about Smith’s injuries, such conduct would constitute
deliberate indifference consistent with his effort to conceal his
own actions against Smith, as previously addressed.
22
36
say anyone asked, encouraged, or threatened them not to report
either what they were told or what they witnessed. Id. at 75-76.
Plaintiff
also
points
to
no
evidence
showing
Defendants
Reddish, Ellis, or Swain attempted to conceal physical evidence,
hide
witnesses,
or
obstruct
the
investigation
process.
All
officers who were involved in Smith’s transport and return to the
movement center completed or commented on incident reports that
day. See Pl. Criswell Resp. Ex. 1 at 1-4, 9-10, 13-26. Defendant
Criswell informed his superiors he had used force during transport,
albeit not immediately, and he documented the incident in his own
report. Id. at 1-2.
Assuming Defendants
Allen or Norman intentionally harmed
Smith inside the movement center, there is no evidence they told
anyone else or reported it. Id. at 13-14, 25-26. Indeed, to this
day, both Defendants Allen and Norman steadfastly maintain Smith
fell as he entered the holding cell. Id. No other corrections staff
witnessed
Smith
fall
or
anything
that
may
subsequently
have
happened inside the holding cell.23 Thus, there would have been no
reason for the holding cell not to have been cleaned in the
ordinary course of business or for employees not to have gone home
Officer Browning told an FDLE agent he saw Defendants Allen
and Norman place Smith in the holding cell, and Browning heard
what sounded like someone falling. See Pl. Norman Resp. Ex. 1 at
68. But he did not see Smith fall or see Smith on the floor. He
was told Smith “fell face first.” Id.
23
37
when
their
shifts
ended
and
they
completed
any
reports.
As
Defendant Swain testified at deposition, “It wasn’t a crime scene.”
See Swain Dep. at 15.
No staff member involved in events that day even reported or
could recall whether the cell had been cleaned. Defendant Allen
testified at deposition he was not sure who cleaned the cell, but
counsel’s question to him assumed someone had in fact done so:
“who cleaned that blood up?” See Allen Dep. at 47. Allen did not
see anyone clean the cell. Id. at 54. Defendant Swain told an FDLE
agent it was “‘very possible’ the holding cell had been cleaned,”
but he also said he saw “a ‘tiny bit’ of blood in the cell when he
opened the cell for Inspector Whatley.” See Pl. Norman Resp. Ex.
1 at 74. It appears the only person who suggested evidence may
purposely have been tampered with was Inspector Whatley, who told
an FDLE agent that, when he arrived at UCI that evening, “the cell
where Smith allegedly fell had been cleaned.” Id. at 50-51. He
could not say why he thought that, though, nor could he recall
whether anyone told him that. Id.
Finally,
Plaintiff
offers
no
evidence
showing
Defendant
Reddish ordered an investigation to be halted or promised those
involved
they
would
not
be
disciplined.
On
the
contrary,
administrators reviewed the use-of-force incident of which they
were aware—Defendant Criswell’s—and found it complied with the
relevant provision of the Florida Administrative Code. See Pl.
38
Criswell Resp. Ex. 1 at 1. The incident was referred to the
Inspector
General’s
Office
for
further
review.
Id.
Moreover,
Defendant Reddish appointed Major Jefferson to review Criswell’s
decision to breach the passenger compartment of the transport van
and, based on Jefferson’s report, suspended Defendant Criswell for
his “poor judgment.” Id. at 1, 9, 11, 13; Reddish Dep. at 13. See
also Pl. Norman Resp. Ex. 5 at 27-28 (IG’s report sustaining
Criswell’s suspension). Defendant Reddish also noted Defendant
Criswell could have better communicated with Defendant Ellis about
his need to use force and added the topic of “communication” to
the next OIC meeting agenda. See Pl. Criswell Resp. Ex. 1 at 9.
In
summary,
Plaintiff’s
deliberate
indifference
claims
against Defendants Ellis, Swain, and Allen may proceed to the
extent
stated
in
this
order.
Defendant
Reddish,
however,
is
entitled to summary judgment on Count V and is due to be dismissed
from this action.
C. Conspiracy Claims (Counts II & III)
Plaintiff alleges Defendants Reddish, Allen, Ellis, Swain,
Criswell,
and
Norman,
acting
with
malice
and
deliberate
indifference, conspired to deprive Smith of his constitutional
rights and agreed to conceal any wrongdoing. See FAC at 22-25. As
to the civil conspiracy claim under Florida law, Plaintiff alleges
the individual Defendants “each conspired, acting outside the
scope of their employment, to cause the underlying tort of murder
39
or manslaughter of Frank Smith, which formed the purpose of the
conspiracy.” Id. at 22. In the alternative, Plaintiff asserts,
Defendants “are liable for the tort of civil conspiracy, standing
alone.” Id. at 23.
Defendants Reddish, Ellis, and Swain argue they are entitled
to
summary
judgment
because
Plaintiff
fails
to
establish
an
independent, underlying claim against them in Counts I (wrongful
death) and V (constitutional deliberate indifference). See FDOC
Motion at 19. They also posit Plaintiff presents no evidence
“Defendants reached an agreement to perform an unlawful act.” Id.
In the alternative, they assert the intracorporate conspiracy
doctrine bars the claims. Id. at 20-22.
Similarly, Defendant Criswell argues Plaintiff offers no
evidence of a conspiracy and maintains “civil conspiracy is not an
independent
cause
of
action.”
See
Criswell
Motion
at
23-24.
Defendants Allen and Norman adopt the other Defendants’ arguments
regarding
the
application
of
the
intracorporate
conspiracy
doctrine. See Norman Motion at 5-7; Allen Motion at 5-7.
A conspiracy requires an agreement between two or more people.
Bailey v. Bd. of Cty. Comm’rs of Alachua Cty., Fla., 956 F.2d 1112,
1122 (11th Cir. 1992) (explaining a conspiracy claim under § 1983
requires evidence that the parties “reached an understanding”);
Vista Marketing, LLC v. Burkett, 999 F. Supp. 2d 1294, 1297 (M.D.
Fla. 2014) (setting forth the elements of a civil conspiracy
40
claim).
“[T]he
linchpin
for
conspiracy
is
agreement,
which
presupposes communication.” Bailey, 956 F.2d at 1122. On summary
judgment, “[t]he plaintiff does not have to produce a ‘smoking
gun’ . . . but must show some evidence of agreement between the
defendants.” Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1283–
84 (11th Cir. 2002) (internal citation omitted). Proof of an
agreement may be based on circumstantial evidence, Grider v. City
of Auburn, Ala., 618 F.3d 1240, 1260 (11th Cir. 2010), but the
evidence must be more than a “scintilla.” Rowe, 279 F.3d at 1284.
Plaintiff suggests the events on July 3, 2012, permit the
reasonable inference Defendants agreed “to follow a certain course
of conduct and that the intent of the agreement could have been a
criminal act.” See Pl. Norman Resp. at 17. See also Pl. FDOC Resp.
at 14; Pl. FDOC Resp. at 12. Plaintiff contends the following
anomalies permit the inference of a conspiracy: the unexplained,
last-minute change to have Defendant Criswell transport Smith from
Shands to UCI;24 Criswell’s breach of the passenger compartment in
Plaintiff suggests the alleged conspiracy began when
someone ordered Defendant Criswell to transport Smith even though
Criswell initially was assigned to guard a different inmate at
Shands. See FAC at 16. Defendant Criswell confirmed at his
deposition that someone called to tell him to relieve the officer
guarding Smith because officials did not want Criswell to incur
more overtime. See Criswell Dep. at 17. There is no evidence
indicating who directed the change in transport detail for Smith,
nor is there evidence permitting the inference the change was made
to enable Criswell to harm Smith. It does not appear the other
officers involved in the transport, Hough, Cagle, or Shaffer, were
reassigned.
24
41
violation of FDOC policy and the inconsistent accounts of force
Criswell used against Smith; the failure to have a camera recording
when the transport van returned to UCI; Dr. Sperry’s conclusion
that Smith did not have face injuries consistent with him having
forcefully banged his head on the metal grate inside the transport
van;25 Defendant Reddish’s insistence to immediately inspect the
damage to the van when it returned to UCI; the omission from the
control room log of Smith’s return to UCI; the delay in contacting
Inspector
Whatley
and
Whatley’s
inability
to
inspect
the
“evidence” or question witnesses; and the striking similarity
between the officers’ incident reports. See Pl. Norman Resp. at
16-17.
For the reasons
discussed at length above,
there is
no
evidence permitting a reasonable inference Defendants Reddish,
Ellis, Swain, and Criswell reached an agreement to harm Smith or
to conceal any reported instances of force on July 3, 2012.
Additionally,
Plaintiff
points
to
no
evidence
showing
the
supervisory officials, Reddish, Ellis, and Swain, adopted a policy
or custom of covering up constitutional violations like the ones
Dr. Sperry concludes, “There is no evidence that Mr. Smith
struck his head and/or face on the interior metal grill-covered
surfaces of the transport vehicle with any significant degree of
force, as there are no patterned injuries on his face and head.”
See Criswell Ex. 8A at 8. Any injuries Smith sustained by banging
his head inside the van, according to Dr. Sperry, were “minor.”
Id.
25
42
Plaintiff alleges Defendants Criswell, Allen, and Norman committed
against Smith. See Weiland v. Palm Beach Cty. Sheriff’s Office,
792 F.3d 1313, 1330 (11th Cir. 2015) (“[A] conspiracy claim against
a municipality must include the existence of a policy or custom
underlying the conspiracy.”).
As to Defendants Allen and Norman, however, the evidence
permits
the
reasonable
inference
they
used
unnecessary
force
against Smith inside the movement center, as previously addressed.
Assuming they used unnecessary force against Smith but failed to
report it and instead told everyone Smith fell, a reasonable jury
could find they reached an agreement to beat Smith; conceal their
actions; pretend Smith was not seriously injured by moving him via
wheelchair; lie about what happened to the EMTs, their superiors,
and investigators; and direct other officers to report Smith fell.
Moreover, if they engaged in such conduct, which may be criminal,
the intracorporate conspiracy doctrine does not bar the claim.26
See McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1040-41 (11th
Cir. 2000) (holding the intracorporate conspiracy doctrine does
not apply when the conspiracy is criminal in nature).
Defendants’ suggestion that the alleged actions were not
criminal in nature is dubious given the events surrounding Smith’s
hospitalization and death sparked a criminal investigation by the
FDLE.
26
43
Accordingly, Defendants Reddish, Ellis, Swain, and Criswell
are entitled to summary judgment on Counts II and III, but these
claims survive against Defendants Allen and Norman.
D. Sovereign Immunity (Counts I & II)
Defendants Norman and Allen seek dismissal of Plaintiff’s
state law claims (Counts I and II: wrongful death and conspiracy),
asserting they are entitled to sovereign immunity under Florida
Statutes section 768.28(9)(a). See Norman Motion at 4-5; Allen
Motion at 4-5. According to Defendants Norman and Allen, Plaintiff
alleges in her complaint only “a threadbare recital” that they
acted maliciously and in bad faith and fails to allege facts of a
conspiracy. See Norman Motion at 4, 5; Allen Motion at 4, 5.
By referencing only Plaintiff’s complaint allegations rather
than pointing to record evidence, Defendants Norman and Allen do
not carry their burden on summary judgment. See Clark, 929 F.2d at
608. In her complaint, Plaintiff alleges facts that, accepted as
true, permit the inference Defendants Norman and Allen acted in
bad faith or with malicious purpose and conspired to deprive Smith
of his constitutional rights. See FAC at 8, 13, 15-16, 17-18. Thus,
Defendants Norman and Allen do not demonstrate they are entitled
to sovereign immunity as to Plaintiff’s state law claims.
E. Wrongful Death (Count I)
In Count I, Plaintiff asserts a wrongful death claim against
all individual Defendants. See FAC at 22. Defendants Norman and
44
Allen seek dismissal of this Count based on sovereign immunity, an
argument that fails, as addressed above. The remaining Defendants
assert slightly different arguments for summary judgment on this
Count.
i. Defendant Criswell
Defendant Criswell argues Plaintiff’s wrongful death claim is
untimely because Plaintiff did not file her complaint within two
years of Smith’s death. See Criswell Motion at 25. Defendant
Criswell also contends his actions were not the proximate cause of
Smith’s death. Id. As to the second argument, Plaintiff counters
that the “indivisible injury rule” applies because the harm caused
by each Defendant is incapable of division. See Pl. Criswell Resp.
at 15-16.
Under the Florida Wrongful Death Act, a plaintiff must show
the defendant’s actions proximately caused the death. See Fla.
Stat. § 768.19. When there is reasonable disagreement on the issue
of proximate causation, the question should be decided by a jury.
City of Pinellas Park v. Brown, 604 So. 2d 1222, 1228 (Fla. 1992),
Ross v. City of Jacksonville, 274 So. 3d 1180, 1183-84 (Fla. Dist.
Ct. App. 2019).
According to the autopsy report (Doc. 46-4; Autopsy Report),
Smith died from “complications of blunt head injuries.” See Autopsy
Report at 5. At deposition (Doc. 105-1; Sperry Dep.), Dr. Sperry
testified that the ultimate cause of Smith’s death was pneumonia
45
along with organ system failure and sepsis, which were “caused by
the quadriplegia, that arose from the . . . cervical spinal cord
injury.” See Sperry Dep. at 19. A defense expert, Dr. Matthew F.
Lawson (Doc. 135-3; Lawson Report), acknowledges “Smith sustained
a severe spinal cord injury on July 3, 2012,” which ultimately
caused his death. See Lawson Report at 4.
While the evidence is somewhat contradictory as to what
occurred inside the transport van, there is no evidence Defendant
Criswell struck Smith’s head or otherwise caused head injuries. In
fact, Plaintiff’s own expert witnesses conclude Smith’s head and
spinal injuries, which led to his death, occurred inside the
movement center, not the van. Dr. Sperry maintains Smith “did not
sustain the intracranial brain injuries or the spine and spinal
cord injuries when he was within the transport van.” See Criswell
Ex. 8A at 8, 9. At deposition, Dr. Sperry agreed that “any fall or
striking to the back of [Smith’s] head that would’ve caused the
injuries to his spinal cord—that would eventually be the cause of
his death . . . would’ve been caused in [t]he [m]ovement [c]enter.”
See Sperry Dep. at 39. Similarly, Aubrey Land concludes, in part
based on Dr. Sperry’s opinions, that Smith was “physically abused”
inside the movement center where he sustained “life ending injury.”
See Pl. Norman Resp. Ex. 3 at 12-13. Land acknowledges force was
used during transport, but the nature of force used was limited to
46
the EID and knee strikes, neither of which were to the head. Id.
at 11.
The evidence shows the conduct that caused Smith’s serious
injuries rendering him quadriplegic and contributing to his death
occurred inside the movement center, and it is undisputed Defendant
Criswell did not accompany Smith inside the movement center. See
Pl. Norman Resp. Ex. 1 at 54, 68, 72. Thus, Defendant Criswell
carries his burden on summary judgment as to Plaintiff’s wrongful
death claim against him.
The “indivisible injury rule” does not apply under these
circumstances because Plaintiff’s own expert, Dr. Sperry, opines
Smith’s
injuries
can
be
apportioned,
at
least
between
those
sustained inside the transport van (if any) versus those sustained
inside the movement center. Cf. Gross v. Lyons, 763 So. 2d 276,
280 (Fla. 2000) (explaining the “indivisible injury rule” as
follows: “When the tortious conduct of more than one defendant
contributes to one indivisible injury, the entire amount of damage
resulting from all contributing causes is the total amount of
damages recoverable by the plaintiff”). Dr. Sperry concludes the
injuries that resulted in or contributed to Smith’s death occurred
inside the movement center. See Criswell Ex. 8A at 8, 9; Sperry
Dep. at 39. Because Defendant Criswell did not accompany Smith
inside the movement center, he cannot be held responsible for the
harm that befell Smith once there. Accordingly, Plaintiff fails to
47
overcome summary judgment in favor of Defendant Criswell on Count
I.
ii. Defendants Reddish, Ellis, & Swain
Like Defendant Criswell, Defendants Reddish, Ellis, and Swain
argue they are entitled to summary judgment on Count I because
there is no evidence any conduct by them caused Smith’s death. See
FDOC Motion at 12.27 Plaintiff does not respond to the causation
argument. See Pl. FDOC Resp. at 14.
It is undisputed that neither Defendants Reddish, Ellis, or
Swain rode in the transport van or accompanied Smith inside the
movement center. And there is no evidence that Defendants Reddish,
Ellis, or Swain observed the alleged use of force inside the
movement center. Defendants Norman and Allen denied any other
Defendant being present when Smith entered the holding cell, where
they say Smith fell. See Pl. Norman Resp. Ex. 1 at 61; Pl. Norman
Resp. Ex. 9 at 6-7; Pl. Norman Resp. Ex. at 11. When Defendants
Norman and Allen were inside the movement center with Smith,
Defendant Criswell was outside briefing Defendant Ellis about what
occurred
during
transport;
Defendant
Reddish
was
at
the
They also contend they are entitled to sovereign immunity,
and Plaintiff did not notify the municipality in writing of her
intent to file a wrongful death claim as required by Florida
Statutes section 768.28(6)(a). See FDOC Motion at 12-13. The Court
does not address these arguments because it finds they are entitled
to relief on a different basis.
27
48
administration building inspecting the damage to the van; and
Defendant Swain was just reporting for duty.28 See Criswell Dep.
at 44; Reddish Dep. at 11-12; Pl. Norman Resp. Ex. 1 at 54, 72,
73.
Not
only
were
Defendants
Reddish,
Ellis,
and
Swain
not
involved in or present during any uses of force against Smith, the
evidence shows these Defendants later learned only of the use of
force
that
occurred
during
transport
(involving
Defendant
Criswell). See Pl. Norman Resp. Ex. 1 at 72, 74; Pl. Criswell Resp.
Ex. 1 at 1. Defendants Reddish, Ellis, and Swain did not hear of
any use of force having occurred inside the movement center. In
fact, they reported having heard Smith fell. See Pl. Norman Resp.
Ex. 1 at 72, 74; Reddish Dep. at 15.
Based on the above undisputed evidence, Defendants Reddish,
Ellis, and Swain did not participate in and were not present during
any reported or alleged use-of-force incident against Smith on
July 3, 2012. Thus, they cannot be said to have proximately caused
Smith’s death. And, as addressed above, there is no evidence to
show or permit the reasonable inference that, before Smith was
transported from Shands to UCI on July 3, 2012, Defendants Reddish,
Even if Defendant Ellis entered the movement center to
speak to Defendant Allen, see Pl. Norman Resp. Ex. 10 at 14, there
is no evidence Ellis contributed to or observed conduct that
rendered Smith unconscious.
28
49
Ellis, and Swain concocted a plan to enable Defendants Criswell,
Norman, or Allen to physically harm Smith.
For these reasons, Defendants Reddish, Ellis, and Swain carry
their burden to show there is no genuine issue of material fact
whether their actions caused Smith’s death. Defendants Reddish,
Ellis, and Swain are thus entitled to summary judgment in their
favor on Count I because there is no evidence showing they caused
or contributed to the injuries resulting in Smith’s death.
F. Claims Against the FDOC (Count VI)
Against the FDOC, Plaintiff asserts claims under the ADA and
RA.
See
FAC
at
29.
Plaintiff
alleges
Smith
was
a
qualified
individual in need of reasonable accommodation of which employees
and staff were aware but refused to provide. Id. at 30-31. The
FDOC
concedes
Plaintiff
was
a
qualified
individual
with
a
disability (mental illness) but contends Plaintiff presents no
evidence showing Smith was excluded from participation in or denied
the benefits of services, programs, or activities because of his
disability. See FDOC Motion at 23. Plaintiff, in response, asserts
“UCI administrators, including Defendants, [failed] to control
officers like Criswell, Norman, and Allen, [and] the programs that
were nominally designed to help inmates like Mr. Smith served to
render him a victim of officers who enjoyed taunting and tormenting
mentally-ill inmates.” See Pl. FDOC Resp. at 18.
50
Title II of the ADA, which applies to state prisons, provides
as follows: “[N]o qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any such
entity.” 42 U.S.C. § 12132. See also Pennsylvania Dep’t of Corr.
v. Yeskey, 524 U.S. 206, 213 (1998) (holding Title II of the ADA
“unambiguously
extends
to
state
prison
inmates”).
Similarly,
section 504 of the RA provides, “No otherwise qualified individual
with a disability . . . shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program
or activity receiving Federal financial assistance.” 29 U.S.C. §
794(a).
Accordingly, a claim of discrimination under the ADA and RA
requires a plaintiff to establish “(1) that he is a qualified
individual with a disability; and (2) that he was either excluded
from participation in or denied the benefits of a public entity’s
services, programs, or activities, or was otherwise discriminated
against by the public entity; and (3) that the exclusion, denial
of benefit, or discrimination was by reason of the plaintiff’s
disability.” Owens v. Sec’y, Fla. Dep’t of Corr., 602 F. App’x
51
475, 477 (11th Cir. 2015) (quoting Bircoll v. Miami-Dade Cty., 480
F.3d 1072, 1083 (11th Cir. 2007)).29
Plaintiff alleges the FDOC knew Smith needed a reasonable
accommodation
but
failed
to
provide
that
accommodation
intentionally or with deliberate indifference. See FAC at 30-31.
Plaintiff asserts officers were permitted to use force against
Smith
because
concludes,
“As
of
a
his
mental
proximate
illness.
result
of
Id.
at
31.
defendant
Plaintiff
FDOC’s,
its
employees’, and agents’ failure and intentional refusal to provide
Mr. Smith with a reasonable accommodation for his disability, he
suffered physical harm and death.” Id.
Upon
review,
Plaintiff
offers
no
evidence
that
prison
officials denied Smith a reasonable accommodation for his mental
illness.
Plaintiff
does
not
even
propose
what
accommodations
should have been made but were not. Instead, in response to the
FDOC’s motion, Plaintiff only vaguely says the FDOC is “well aware
of the special protections persons with mental illness need to
live safe and meaningful lives.” See Pl. FDOC Resp. at 20. It is
“With the exception of its federal funding requirement, the
RA uses the same standards as the ADA, and therefore, cases
interpreting either are applicable and interchangeable.” Badillo
v. Thorpe, 158 F. App’x 208, 214 (11th Cir. 2005) (citing Cash v.
Smith, 231 F.3d 1301, 1305 & n.2 (11th Cir. 2000)); J.S., III by
& through J.S. Jr. v. Houston Cty. Bd. of Educ., 877 F.3d 979, 985
(11th Cir. 2017) (“Discrimination claims under the ADA and the
[RA] are governed by the same standards, and the two claims are
generally discussed together.”).
29
52
undisputed Smith was housed in the mental health dorm at UCI, which
speaks to an effort to accommodate his disability. To the extent
Plaintiff’s outburst during transport on July 3, 2012, may have
been attributable to Smith’s mental illness or the medications he
was taking, Plaintiff offers no evidence specifically addressing
the reasonableness of Defendant Criswell’s response to Smith’s
outburst. For instance, other than Criswell’s “poor judgment” in
entering the passenger compartment of the van, Plaintiff offers no
evidence showing Defendant Criswell and other officers involved in
the transport were ill-equipped or improperly trained to handle
such an outburst by a mentally disabled inmate.
However,
to
the
extent
Plaintiff’s
claim
relies
upon
application of the general “discrimination” clauses of the ADA and
RA, Plaintiff points to the statements of other inmates who told
FDLE agents that officers at UCI would beat or deny food to
mentally ill inmates, whom the officers referenced as “bugs.” Pl.
FDOC Resp. at 18-20. See also Pl. Norman Resp. Ex. 12 at 2.
One of the inmates, Marcellas Harris, identified numerous
officers of different rank at UCI who would beat inmates or deny
them food because of their mental disabilities: Sergeant Michael
Wiggs, Captain Shawn Swain (Defendant in this case), Sergeant
Charles
Williams,
(Defendant
in
this
Sergeant
Eric
Jackson,
case),
Sergeant
Coleman,
Sergeant
Officer
Criswell
Norman
(Defendant in this case), Officer Milliard Bell, Esfred (precise
53
name and rank unknown), Sergeant MacCord, Sergeant Carasquillo,
Lieutenant John Curtis, Officer Metz, Jenkins (no rank provided),
Sergeant Strong, Sergeant Bart, and a lieutenant whose name Inmate
Harris could not recall. See generally Pl. Norman Resp. Ex. 12.
Harris concluded the interview by saying, “You got a bunch in that
stack [of pictures] right there and I’m talking about they were - I mean, I can point them out and they will beat you good. And
that nurse . . . she down with it . . . . She would fabricate some
paperwork.” Id. at 15.
The FDOC asserts that if the Court finds in favor of the
individual Defendants on Counts IV and V (excessive force and
deliberate indifference), then Plaintiff automatically fails to
demonstrate the requisite discriminatory intent under the ADA and
RA. See FDOC Motion at 23. The FDOC’s position is flawed, however,
because liability under the ADA and RA may be based on a theory of
respondeat superior, whereas liability under § 1983 may not. See
Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 350 (11th
Cir. 2012). Thus, the Court’s ruling on Plaintiff’s § 1983 claims
against individual corrections employees does not dictate a ruling
on Plaintiff’s ADA and RA claims against the FDOC.
In Liese, the Eleventh Circuit
held a public entity (a
hospital) could be liable under the RA for the conduct of an
official with supervisory authority (a doctor) if a jury were to
find the official’s conduct constituted deliberate indifference.
54
Id.
at
350-51.
The
plaintiff
in
Liese
argued
a
doctor
was
deliberately indifferent to her disability by refusing to provide
her with auxiliary aids knowing she needed them to communicate
effectively. Id. at 351. The court found the plaintiff presented
enough evidence on which a jury could find the doctor made an
“official decision” for the hospital by failing to provide the
plaintiff auxiliary aids and that such failure was “enough to infer
intentional discrimination” under the RA. Id. at 351-52.
Extending the Liese holding here, like the hospital, the FDOC
can
be
held
liable
for
the
actions
of
its
officials
with
supervisory authority, such as lieutenants and sergeants, if those
officials intentionally discriminated against inmates because of
their mental illness. Plaintiff offers some evidence that prison
staff intentionally discriminated against inmates because of their
mental illness, which creates a genuine issue of material fact
precluding summary judgment. Accordingly, Plaintiff’s ADA and RA
claims may proceed against the FDOC.
G. Punitive Damages
Defendants
Reddish,
Ellis,
Swain,
and
the
FDOC
assert
Plaintiff is not entitled to punitive damages as to the claims
against them. See FDOC Motion at 25. The claims that survive
against
these
Defendants
are
the
following:
deliberate
indifference against Ellis and Swain under § 1983 (Count V) and
discrimination against the FDOC under the ADA and RA (Count VI).
55
Plaintiff is not entitled to punitive damages on the claims against
the FDOC. See Barnes v. Gorman, 536 U.S. 181, 189 (2002) (holding
punitive damages are not available under Title II of the ADA or
section 504 of the RA).
The same is not true as to the claims against Defendants Ellis
and Swain, however. That is because, under § 1983, punitive damages
are appropriate “when the defendant’s conduct is shown to be
motivated by evil motive or intent, or when it involves callous or
reckless
indifference
to
the
federally
protected
rights
of
others.” Wright v. Sheppard, 919 F.2d 665, 670 (11th Cir. 1990)
(quoting Smith v. Wade, 461 U.S. 30 (1983)). Accepting as true
that
Defendant
Ellis
was
deliberately
indifferent
to
Smith’s
condition on July 3, 2012, and that Defendant Swain tormented or
beat mentally ill inmates as described by Inmate Harris, the issue
of punitive damages may be submitted to a jury.
V. Conclusion
To the extent stated in this Order, the parties shall be
prepared to proceed to trial on the following claims: wrongful
death under Florida law against Defendants Allen and Norman (Count
I); conspiracy under Florida and federal law against Defendants
Allen and Norman (Counts II and III); excessive force under § 1983
against
Defendants
Criswell,
Allen,
and
Norman
(Count
IV);
deliberate indifference under § 1983 against Defendants Ellis,
Swain, and Allen (Count V); discrimination against the FDOC under
56
the ADA and RA (Count VI). The deadlines set forth in this Court’s
April 1, 2020 Order (Doc. 134) remain in effect.
Accordingly, it is now
ORDERED:
1.
Defendant Norman’s Motion for Summary Judgment (Doc. 98)
is DENIED.
2.
Defendant Allen’s Motion for Summary Judgment (Doc. 100)
is DENIED.
3.
Defendant Criswell’s Motion for Summary Judgment (Doc.
114) is GRANTED in part and DENIED in part. Defendant Criswell is
entitled to summary judgment on Counts I, II, & III only.
4.
Defendants FDOC, Reddish, Ellis, and Swain’s Motion for
Summary Judgment (Doc. 117) is GRANTED in part and DENIED in part.
Defendant Reddish is entitled to summary judgment as to all claims
against him.
Judgment
in favor of Defendant Reddish
will be
withheld pending adjudication of the action as a whole. See Fed.
R. Civ. P. 54. Defendants Ellis and Swain are entitled to summary
judgment on Counts I, II, & III only.
DONE AND ORDERED at Jacksonville, Florida, this 3rd day of
September 2020.
57
Jax-6
c:
Counsel of Record
58
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