Milledge v. Tucker et al

Filing 156

ORDER granting in part and denying in part 128 Defendants' Motion for summary judgment; granting to the extent Defendants Woodall and Tucker are subject to dismissal with prejudice for Plaintiff's failure to state a claim against them ; withholding judgment until final adjudication of the case; otherwise denying 128 Defendants' motion; denying as moot 152 Plaintiff's motion to stay the proceedings; referring the case to the Jacksonville Division Pro Bono Appointment program to seek counsel for Plaintiff. Signed by Judge Brian J. Davis on 8/22/2019. (KLC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
COREY MILLEDGE,
Plaintiff,
v.

Case No. 3:17-cv-483-J-39MCR

KENNETH S. TUCKER, et al.,
Defendants.
______________________________
ORDER
I. Status
Plaintiff Corey Milledge initiated this action by filing a
pro se civil rights complaint in the United States District Court
for the Northern District of Florida (Doc. 1). The

Northern

District transferred the action to this Court on April 24, 2017,
because a vast majority of Defendants were employed by Suwannee
Correctional Institution (SCI) at the relevant time. See Order
(Doc. 33). Plaintiff is proceeding on an Amended Complaint (Doc.
27; Am. Compl.) against ten individuals for two alleged use-offorce incidents that occurred on June 22, 2012, at SCI. See Am.
Compl.

at

10.

He

asserts

claims

under

the

First

and

Eighth

Amendments. As relief, he seeks compensatory and punitive damages.
Id. at 19.
Before the Court is Defendants’ Motion for Summary Judgment
(Doc. 128; Def. Motion) with exhibits (Docs. 128-1 through 128-

14, 139-1 through 139-3).1 Plaintiff responded to the Motion (Doc.
136;

Response)

with

exhibits

(Docs.

135-1

through

135-17).2

Accordingly, the motion is ripe for this Court’s review.
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)).

Defendants re-filed exhibits B, E, and H because the original
files did not upload properly.
1

Many of the exhibits Defendants and Plaintiff offer are primarily
relevant to Plaintiff’s claims against the Defendants he claims
used force against him. Those Defendants do not move to dismiss
Plaintiff’s Eighth Amendment excessive-force or failure-tointervene claims against them. Instead, Defendants move for
partial summary judgment to narrow the claims and the number of
Defendants. Throughout this Order, the Court will reference
individual exhibits as relevant to its discussion of the arguments
Defendants raise in their Motion.
2

2

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
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.” Rule
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).
On summary judgment, a party opposing the motion must point
to evidence in the record to demonstrate a genuine dispute of
material fact. Fed. R. Civ. P. 56(c)(1). A party may not rely on
conclusory
conclusions

assertions
and

or

speculative

unsupported

factual

argument.

“[U]nsupported

allegations,

as

well

as

affidavits based, in part, upon information and belief, rather
than personal knowledge, are insufficient to withstand a motion
3

for summary judgment.” Mazzola v. Davis, No. 17-14662 (11th Cir.
June 11, 2019) (quoting Ellis v. England, 432 F.3d 1321, 1327 (11th
Cir. 2005)) (internal quotation marks omitted). See also Cordoba
v.

Dillard’s,

Inc.,

419

F.3d

1169,

1181

(11th

Cir.

2005)

(“[U]nsupported speculation does not meet a party’s burden of
producing some defense to a summary judgment motion.”) (quoting
Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 931–32 (7th Cir. 1995))
(alteration adopted).
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. In determining
whether summary judgment is appropriate, a court “must view all
evidence and make 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)).
III. Complaint Allegations
In his Complaint, which is verified under penalty of perjury,3
Plaintiff asserts Defendants violated his rights under the First

The factual assertions a plaintiff makes in a verified complaint
satisfy “Rule 56’s requirements for affidavits and sworn
declarations,” and are therefore given the same weight as factual
statements made in an affidavit. Stallworth v. Tyson, 578 F. App’x
948, 950 (11th Cir. 2014).
3

4

and Eighth Amendments in connection with two uses of force that
occurred on June 22, 2012. See Am. Compl. at 16-18. On the day of
the incidents, Plaintiff was housed in a “transit care unit for
inmates with mental health issues.” Id. at 12. Plaintiff alleges
Defendants Parrish, Sodrel, Greene, Box, and Polanco gratuitously
beat him inside the medical room in a manner Plaintiff describes
as a planned attack (“medical room incident”). Id. at 13.
Plaintiff alleges he sought help from Defendant Perry before
the medical room incident. Plaintiff told Defendant Perry he
thought his life was in danger because Defendants Parrish and
Greene threatened to harm him. Plaintiff asserts Defendant Parrish
threatened to punish him for lying about Defendant Parrish in a
grievance, and Defendant Greene told Plaintiff he and other guards
planned to “whoop [his] ass . . . for throwing [feces] on an
officer.”

Id.

at

12.

Plaintiff

asserts

Defendant

Perry

told

Plaintiff, “[there’s] nothing I can do for you.” Id.
The

second

incident

occurred

later

in

the

day

inside

Plaintiff’s cell (“cell incident”). Id. at 14. Plaintiff asserts
Defendants Nieves and Howell ordered Plaintiff to put his arms
through the flap to be cuffed. When Plaintiff complied, Defendants
Nieves and Howell pulled his right arm through the flap, and Howell
“placed handcuffs around his knuckles like brass knuckles and
punched [Plaintiff] repeatedly in the hand.” Id. Defendants Box,
Polanco, and Greene came to his cell. Id. The cell door was opened,
5

and Defendant Box “leaned in the cell and punched [Plaintiff] in
the face and head,” while Defendant Nieves continued to hold his
arm. Id. at 15. Defendants Polanco, Howell, and Greene watched.
Id.
Plaintiff

asserts

a

claim

under

the

First

Amendment

(retaliation) against Defendant Parrish; a claim under the Eighth
Amendment (deliberate indifference) against Defendants Woodall,
Tucker,

and

Perry;

and

a

claim

under

the

Eighth

Amendment

(excessive force or failure to intervene) against Defendants Box,
Greene, Howell, Nieves, Polanco, Parrish, and Sodrel. Id. at 1618.
IV. Summary of the Arguments
Defendants move to dismiss any claims for damages against
them in their official capacities and argue Plaintiff is not
entitled to recover compensatory and punitive damages under 42
U.S.C. § 1997e(e). See Def. Motion at 7, 13. Defendants Woodall,
Tucker, and Perry seek dismissal of the claims against them for
Plaintiff’s failure to state a claim. Id. at 8, 11. Defendants
Woodall and Tucker argue Plaintiff’s claims against them are based
on

supervisory

demonstrating

liability,

the

requisite

and

Plaintiff

causal

offers

connection

no

facts

between

their

conduct and the alleged constitutional violations. Id. at 8-11.
Defendant

Perry

asserts

he

cannot

be

liable

for

failing

to

intervene because he was not present during either force incident
6

and therefore, was not in a position to have intervened. Id. at
13.
In response, Plaintiff clarifies he sues Defendants in their
individual capacities only. See Response at 2, 6. As to the claims
against Defendants Woodall and Tucker, Plaintiff argues the facts
support an inference that these supervisory Defendants knew he
faced a substantial risk of harm from “subordinates,” and they
failed to reasonably respond to the risk. Id. at 7.
With respect to Defendant Perry, Plaintiff states Defendants
misunderstand

his

claim.

Plaintiff

asserts

a

deliberate-

indifference-failure-to-protect claim against Defendant Perry, not
a failure-to-intervene claim. Id. at 16. Plaintiff argues he states
a claim against Defendant Perry because he told Defendant Perry
before the medical room incident that Defendants Greene and Parrish
threatened to physically assault him, and he asked for protection,
which Defendant Perry declined to provide. Id. at 17.
As to his injuries, Plaintiff contends Defendants beat him
while he was fully restrained until he was unconscious, he had a
bruised left eye with swelling, and he sustained injuries to his
right shoulder and back. Id. at 23-24. He claims he sought medical
treatment after the incidents. Id. at 24.

7

V. Legal Analysis & Conclusions of Law
A. Eleventh Amendment Immunity
Defendants assert they are entitled to Eleventh Amendment
immunity as to any claims against them for damages in their
official capacities. See Def. Motion at 7-8. Plaintiff does not
seek damages from Defendants in their official capacities. See
Response at 2, 6. As such, Defendants’ motion is due to be denied
as moot to the extent they assert Eleventh Amendment immunity.
B. Claims Against Defendants Woodall and Tucker
Plaintiff

contends

Defendants

Woodall

and

Tucker

were

deliberately indifferent to his reports that he faced a risk of
serious harm at SCI. Am. Compl. at 16-17. At the time of the
alleged events, Defendant Woodall was the Assistant Warden at SCI,
and Defendant Tucker was the Secretary of the Florida Department
of Corrections (FDOC). Id. at 1, 2. These Defendants did not
personally participate in the alleged uses-of-force. Plaintiff
claims Defendants Woodall and Tucker knew he faced a risk of
serious

harm

at

SCI

because

he

reported

his

fears

to

their

respective offices by filing grievances. See Response at 7, 11;
Pl. Aff. ¶¶ 2, 4, 5-7. He also claims to have orally informed
Defendant Woodall that he had been threatened. See Pl. Aff. ¶ 3.
Defendants argue liability against a supervisor may not be based
on the plaintiff’s filing of grievances. Def. Motion at 8.

8

“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 . . . for the actions
of a subordinate is extremely rigorous.” Id. Supervisory 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 necessary causal connection can be
established “when a history of widespread
abuse puts the responsible supervisor on
notice of the need to correct the alleged
deprivation, and he fails to do so.”
Alternatively, the causal connection may be
established when a supervisor’s “custom or
policy
...
result[s]
in
deliberate
indifference to constitutional rights” or when
facts
support
“an
inference
that
the
supervisor directed the subordinates to act
unlawfully or knew that the subordinates would
act unlawfully and failed to stop them from
doing so.”
Cottone, 326 F.3d at 1360 (internal citations omitted). See also
Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010) (per

9

curiam) (affirming the district court’s dismissal of the secretary
of the FDOC because the plaintiff failed to allege the secretary
personally

participated

in

the

alleged

conduct

or

that

the

plaintiff’s “injuries were the result of an official policy that
[the

secretary]

established”).

When

a

plaintiff’s

claim

is

premised on demonstrating prior occurrences placed a supervisor on
notice of a history of widespread abuse, the plaintiff must offer
evidence of abuse that was “obvious, flagrant, rampant and of
continued duration, rather than isolated occurrences.” Keith v.
DeKalb Cty., Ga., 749 F.3d 1034, 1048 (11th Cir. 2014) (quoting
Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999)).
Plaintiff premises liability against Defendant Woodall upon
grievances he directed to Woodall, both in person and in writing.
See Pl. Aff. ¶¶ 2-4; Am. Compl. at 11. Plaintiff provides two
grievances, which he directed to the “Warden” of SCI: (1) one dated
March 28, 2011, in which Plaintiff reported that nurses Parrish,
Parrish (husband and wife), and Robinson beat Plaintiff in the
medical room, see Pl. Ex. A at 2-3 (“2011 grievance”); and (2) a
second one dated June 10, 2012, in which Plaintiff requested
protection from the following officers who threatened to hurt him:
McGuire, Cannon, Pope, Meriman, Robinson, Wood, and Leaving, see
Pl. Ex. C at 2-3 (“2012 grievance”).
Plaintiff asserts he also directly spoke to Defendant Woodall
on two occasions, after he filed each of his grievances. After
10

Plaintiff filed the 2011 grievance, Plaintiff orally informed
Defendant Woodall of the fear he expressed in that grievance. See
Pl. Aff. ¶ 3. Plaintiff avers he “verbally told Mr. Woodall that
[he] fear[ed] for [his] life and request[ed] to be placed in
protective custody.” Id. Plaintiff told Defendant Woodall three
nurses, including Defendant Parrish, beat him in the medical room
and that Defendant Parrish threatened him. Id. In his deposition
(Doc. 128-13; Pl. Depo.), Plaintiff elaborated on the nature of
the

threat

from

Defendant

Parrish.

Plaintiff

claims

he

told

Defendant Woodall Defendant Parrish threatened to “beat [his] ass
again, if [she] found out [Plaintiff] wrote a grievance against
[her].” Pl. Depo. at 8.
In his affidavit, Plaintiff references having had only one
conversation with Defendant Woodall, on March 31, 2011. See Pl.
Aff. ¶ 3. In his deposition, however, Plaintiff testified that he
had a second conversation with Defendant Woodall about the threats
he

reported

in

the

2012

grievance.

See

Pl.

Depo.

at

15-16.

Plaintiff stated, “I told Mr. Woodall that I fear[ed] for my life
and request[ed] to be placed in protective custody due to Sergeant
Wood, Lieutenant Cannon and Colonel Leaven4 had threatened me.”
Id. Plaintiff then explained that he told Defendant Woodall what
each officer had said to him, repeating what he wrote in his

In the 2012 grievance, Plaintiff spells this officer’s name as
“Leaving.” Pl. Ex. C at 4.
4

11

grievance. Id. at 16. According to Plaintiff, Defendant Woodall
responded, “I don’t care; it’s a prison.” Id.
Accepting

Plaintiff’s

allegations

as

true,

he

fails

to

demonstrate the requisite causal connection to meet the rigorous
standard for supervisory liability. First, Plaintiff does not
assert or offer evidence that Woodall had notice of a “history of
widespread

abuse.”

See

Cottone,

326

F.3d

at

1360.

Instead,

Plaintiff points to only one prior incident that occurred more
than one year before the incidents he alleges in this action. One
incident over a one-year period does not put a supervisory official
on notice of abuse that is “obvious, flagrant, and rampant.” See
Keith, 749 F.3d at 1048; see also Harrison v. Culliver, 746 F.3d
1288, 1299 (11th Cir. 2014) (holding four similar instances of
inmate-on-inmate assaults over a three-year period, of which the
warden

was

aware,

did

not

constitute

evidence

of

deliberate

indifference to a substantial risk of serious harm).
Second, Plaintiff fails to mention, much less demonstrate, a
policy or custom Defendant Woodall created or adopted that resulted
in a constitutional violation. See Cottone, 326 F.3d at 1360.
Third,

Plaintiff

fails

to

demonstrate

Defendant

Woodall

directed the subordinate Defendants to act unlawfully or knew they
would do so, even though Plaintiff directed oral and written
grievances to Woodall. See id. As to Plaintiff’s March 2011 reports
of fear, there is no evidence Defendant Woodall had actual (or
12

subjective) knowledge Plaintiff was in a perpetual state of harm
from Defendant Parrish between March 2011 and June 2012. See
Rodriguez v. Sec’y for Dep’t of Corr., 508 F.3d 611, 617 (11th
Cir. 2007) (“With regard to the subjective component of the Eighth
Amendment

claim,

the

Court

in

Farmer5

held

that

the

prison

‘official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and
he must also draw the inference.’”).
Plaintiff

testified

at

deposition

he

informed

Defendant

Woodall that Defendant Parrish threatened to physically assault
him again if he filed another grievance against her. Pl. Depo. at
7-8. However, Plaintiff also acknowledged he had “a lot” of
interactions with Defendant Parrish after the 2011 assault with no
incident until more than a year later, on June 22, 2012. Id. at 5.
And there is no evidence Plaintiff submitted additional grievances
complaining of continuing or escalating threats from Defendant
Parrish.
Even more, the 2011 grievance was forwarded to the Inspector
General’s Office, see Pl. Ex. A at 5, meaning the grievance process
was resolved from an institutional standpoint. There is no evidence
Defendant Woodall had reason to believe Plaintiff’s allegations
had not been properly addressed or successfully resolved such that

5

Farmer v. Brennan, 511 U.S. 825, 838 (1994).
13

Woodall subjectively knew Plaintiff faced a continuing threat of
harm

from

Defendant

Parrish.

See

Thompson

v.

Willis,

No.

3:14CV246/MCR/EMT, 2016 WL 5339362, at *2 (N.D. Fla. June 9, 2016)
(“Supervisors are generally entitled to rely on their subordinates
to respond appropriately to situations absent clear or widespread
evidence to the contrary.”).
The June 2012 reports (oral and written) occurred closer in
time to the alleged June 22, 2012 assaults. However, the requisite
causal connection is still lacking. As with the 2011 grievance,
the 2012 grievance was administratively processed and resolved:
the response Plaintiff received informed him his complaints had
been “previously addressed” through a separate formal grievance
Plaintiff filed.6 Pl. Ex. C at 5.
More importantly, in neither the written grievance nor in his
oral

complaint

to

Defendant

Woodall

did

Plaintiff

reference

Defendants he proceeds against in this case. Id. at 2-4. Plaintiff
complained to Defendant Woodall, orally and through his written
grievance, that he felt his life was in danger from specific
individuals: McGuire, Cannon, Pope, Meriman, Robinson, Wood, and
Leaving or Leaven. Pl. Ex. C at 2-4; Pl. Aff. ¶ 4; Pl. Depo. at

Plaintiff does not provide the response he received to the prior
grievance, though he provides the grievance itself. In the prior
grievance, dated May 30, 2012, Plaintiff complained of the same
threats as those relayed in the June 10, 2012 grievance.
6

14

15-16. Plaintiff offers no evidence that the individual Defendants
named in this case were involved in a plan to harm him, or that,
if they were, he told Defendant Woodall as much.
Plaintiff alleges some of the officers who threatened him
stated they or others would carry out the threats. See Am. Compl.
at 11. For instance, Sergeant Wood allegedly told Plaintiff, “if
I don’t get you another officer will.” Id. Even if Defendant
Woodall objectively could or should have appreciated Plaintiff
faced a risk of harm from corrections staff other than those
Plaintiff specifically named, under the deliberate indifference
standard, Defendant Woodall may not be held to account for that
which he should have appreciated but did not. A supervisor’s
failure

to

appreciate

a

risk

of

harm,

“while

no

cause

for

commendation, cannot . . . be condemned as the infliction of
punishment.” Farmer, 511 U.S. at 838. For these reasons, Plaintiff
fails

to

demonstrate

Defendant

Woodall

subjectively

knew

Defendants would act unlawfully and permitted them to do so. See
Cottone, 326 F.3d at 1360.
Plaintiff’s allegations as to Defendant Tucker are even more
attenuated

than

those

against

Defendant

Woodall.

Plaintiff

premises liability against Defendant Tucker on a sole grievance
dated June 11, 2012, which Plaintiff directed to the office of the
Secretary of the FDOC. See Pl. Ex. D at 2-3. In the grievance,
Plaintiff complained of the same threats from the same corrections
15

staff as those he referenced in the June 10, 2012 grievance to the
Warden. Id.
Not

only

Defendants

in

did
this

Plaintiff
case,

not

claim

Defendant

he

was

threatened

Tucker

did

not

sign

by
the

grievance response, a fact Plaintiff readily acknowledges. Id. at
5; Response at 10 n.1. Plaintiff asserts it is “plausible that
Defendant Tucker would review grievances . . . filed and stored at
his office.” Response at 10 n.1. Plausibility is not the standard
for deliberate indifference. Nor are speculative assertions enough
to overcome summary judgment.

See

Cordoba, 419 F.3d

at 1181

(“[U]nsupported speculation does not meet a party’s burden of
producing some defense to a summary judgment motion.”). Plaintiff
presents no evidence upon which a reasonable jury could conclude
Defendant Tucker had subjective knowledge of a risk of serious
harm and with that knowledge, was deliberately indifferent to the
risk. See Rodriguez, 508 F.3d at 617.
Plaintiff contends the rote referral of his complaints to the
Inspector General’s Office amounts to “brushing [him] off,” or
ignoring him. See Pl. Aff. ¶ 11. To the extent Plaintiff is
unsatisfied with the grievance process or the Warden’s, Assistant
Warden’s, or Secretary’s roles within that process, he fails to
state a plausible constitutional violation. See, e.g., Thomas v.
Warner, 237 F. App’x 435, 437 (11th Cir. 2007) (“[A] prisoner does
not

have

a

constitutionally-protected
16

liberty

interest

in

an

inmate grievance procedure.”). See also Harrison v. Culliver, 746
F.3d 1288, 1300 (11th Cir. 2014) (“[Section 1983] does not provide
plaintiffs
governments

or

courts

throughout

carte
the

blanche
United

to

micromanage

States.”)

local

(quoting

with

alteration Connick v. Thompson, 563 U.S. 51, 68 (2011)).
Upon review of the record, the Court finds Plaintiff fails
to

demonstrate

a

causal

connection

between

the

alleged

constitutional violations and any action or inaction by Defendants
Woodall and Tucker. As such, he fails to state a deliberate
indifference claim against Defendants Woodall and Tucker and these
Defendants are due to be dismissed from this action.
C. Claim Against Defendant Perry
Plaintiff

alleges

Defendant

Perry

was

deliberately

indifferent to a risk of serious harm in violation of the Eighth
Amendment. See Am. Compl. at 12. He alleges he reported a threat
of harm to Defendant Perry prior to the medical room incident, yet
Perry failed to protect him from the subsequent attack. Id.; Pl.
Aff. ¶ 3. Defendant Perry does not address Plaintiff’s failureto-protect claim; rather, Defendant Perry asserts he cannot be
liable for failing to intervene in the alleged uses of force
because he was not present for either incident. See Def. Motion at
13. Because the foundation of Defendant Perry’s argument rests
upon an inapplicable legal standard, he fails to demonstrate the

17

absence of a genuine issue of material fact as to Plaintiff’s claim
against him.
Plaintiff’s allegations state a claim against Defendant Perry
under the deliberate indifference standard. A prisoner establishes
an Eighth Amendment violation when he shows a prison official
“actually

(subjectively)

knows

[the]

inmate

is

facing

a

substantial risk of serious harm, yet disregards that known risk
by failing to respond to it in an (objectively) reasonable manner.”
Rodriguez, 508 F.3d at 617 (citing Farmer, 511 U.S. at 837, 844).
A prison official subjectively knows of a risk of harm to an inmate
when he “disregards an excessive risk to [the] inmate’s health or
safety.” Farmer, 511 U.S. at 837. “Whether a prison official had
the requisite knowledge of a substantial risk is a question of
fact

subject

to

demonstration

in

the

usual

ways,

including

inference from the circumstantial evidence.” Rodriguez, 508 F.3d
at 617 (emphasis in original) (quoting Farmer, 511 U.S. at 843).
When a prisoner presents evidence that he reported to a prison
official

a

particularized,

well-founded

fear

and

the

prison

official ignores the inmate’s request for protection, summary
judgment is not warranted. See Caldwell v. Warden, FCI Talladega,
748 F.3d 1090, 1102 (11th Cir. 2014) (finding a jury reasonably
could infer the defendants had subjective knowledge of a risk of
harm where the plaintiff expressed he feared his cellmate and the
fear was “well-founded” because the cellmate set fire to the cell
18

earlier in the day). See also Rodriguez, 508 F.3d at 614, 616, 624
(vacating judgment in favor of defendants because the plaintiff
asked for transfer and protection after gang members told him they
wanted to kill him,

but defendants, rather than protect the

plaintiff, allowed him to be returned to general population where
he was promptly stabbed by a gang member).
Plaintiff

asserts

he

reported

Defendants

Greene’s

and

Parrish’s threats to Defendant Perry and asked to be placed in
protective custody. See Am. Compl. at 12. Plaintiff contends, while
he was in the shower cell, Defendant Greene said, “[y]ou threw
[feces] on an officer, we fixing [to] whoop your ass today,” and
Defendant Greene ordered Plaintiff to move to the holding cell.
When Plaintiff declined to come out of the shower cell, Defendant
Greene sought the assistance of Defendant Perry. Plaintiff told
Defendant Perry he did not want to come out of the shower cell
because “Sergeant Greene had threatened him” and planned to carry
out the threat when Plaintiff was moved to the holding cell. Id.
Plaintiff also informed Defendant Perry what Defendant Parrish
said to him: “I’m going to get you for lying on me in your
grievance.”

Id.

Plaintiff

“told

[Defendant]

Perry

that

he

[believed] his life was in danger and [asked] to go in protective
custody.” Id. Defendant Perry told Plaintiff he could do “nothing”
for him. Id.

19

Plaintiff’s allegations, accepted as true, state an Eighth
Amendment

violation.

Defendants

do

not

dispute

or

address

Plaintiff’s allegations that Defendant Perry failed to protect him
under relevant Eighth Amendment jurisprudence. See Def. Motion at
13. As such, this claim may proceed to a factual determination by
a trier of fact.
D. Damages Available Under 42 U.S.C. § 1997e(e)
The Prison Litigation Reform Act (PLRA) requires a plaintiff
seeking

damages

to

demonstrate

the

alleged

constitutional

violation caused a physical injury. 42 U.S.C. § 1997e(e) (“No
Federal civil action may be brought by a prisoner confined in a
jail,

prison,

or

other

correctional

facility,

for

mental

or

emotional injury suffered while in custody without a prior showing
of physical injury.”). The PLRA does not define “physical injury.”
The Eleventh Circuit has explained a physical injury is one that
is not simply de minimis, though it “need not be significant.” See
Thompson v. Sec’y, Fla. Dep’t of Corr., 551 F. App’x 555, 557 (11th
Cir. 2014); Dixon v. Toole, 225 F. App’x 797, 799 (11th Cir. 2007)
(citing Harris v. Garner, 190 F.3d 1279, 1286 (11th Cir. 1999)).
Bruising and scrapes fall into the category of de minimis
injuries. Dixon, 225 F. App’x at 799. Accord Mann v. McNeil, 360
F. App’x 31, 32 (11th Cir. 2010) (holding vague back injuries and
scrapes amounted to de minimis injuries). See also Thompson, 551
F. App’x at 557 n.3 (describing an approach of asking whether the
20

injury would require a free world person to visit an emergency
room or doctor) (citing Luong v. Hatt, 979 F. Supp. 481, 486 (N.D.
Tex. 1997)).
Plaintiff avers he sustained an eye injury, which causes
blurry vision, a right shoulder injury, and a back injury. See Pl.
Aff. ¶ 25; Pl. Depo. at 41. In his deposition, Plaintiff explained
the incidents exacerbated a previous eye injury, which he sustained
in 2010. Pl. Depo. at 59-60. Plaintiff states he has “sharp
shooting pain in [his] back area,” he has a limited range of
motion, and is unable to lift heavy objects. See Pl. Aff. ¶ 25.
According to an emergency room record Plaintiff provides (Doc.
135-13; Pl. Ex. L), he had a post-use-of-force physical examination
at 4:55 p.m. on June 22, 2012.7 At that time, he had a laceration

According to the records Defendants provide, including video
evidence, Plaintiff was seen in the medical room three times on
June 22, 2012. According to a use of force file (Doc. 139-1; Def.
Ex. B) and the related hand-held video footage (Sealed Doc. 1284; Def. Ex. D), Plaintiff’s first visit to the medical room
occurred at about 12:30 a.m. Def. Ex. B at 4; Def. Ex. D. Plaintiff
was brought to the medical room because the physician ordered that
he receive an ETO (emergency treatment order) injection and be
placed in four-point restraints for self-injurious behavior.
Plaintiff complied with the order and submitted to the injection
and restraints without incident. Def. Ex. B at 4. A second use of
force file (Doc. 139-2; Def. Ex. E), records the second medical
room visit occurred at about 11:40 a.m. Def. Ex. E at 2. Guards
escorted Plaintiff to the medical room for a mouth swab. Id.
According to the force report, Plaintiff lunged at the nurse
(Defendant Parrish) and bit the nurse’s finger. Id. Spontaneous
force was used to subdue Plaintiff. Id. The only injury noted
during the post-use-of-force examination was a laceration to
Plaintiff’s right arm, which he inflicted himself. Id. at 10-11.
A third use of force file (Doc. 139-3; Def. Ex. H), records
7

21

on his right arm (which was self-inflicted) and a laceration above
his left eye. Pl Ex. L at 3. The nurse noted no bleeding or
swelling, and the injury required no treatment. Id. at 2. There is
no reference to back or arm injuries, and Plaintiff provides no
medical records indicating he sought or received treatment for his
back or shoulder.
In

his

Response,

Plaintiff

contends

prison

officials

destroyed his medical records and sick-call requests, and he asks
that the Court order Defendants to provide all medical records and
sick-call requests related to the injuries he claims to have
sustained at the hands of Defendants. See Response at 30; see also
Pl. Aff. ¶ 27. Given Plaintiff’s assertions that prison officials
destroyed medical records and that he did not have sufficient time
to review his medical records to effectively respond to Defendants’
Motion, the Court ordered Defendants to arrange for Plaintiff to
have twelve additional hours to review his medical records. See
Order (Doc. 140). The Court also afforded Plaintiff additional
time to supplement his Response after completing his call-outs.
See Orders (Docs. 140, 148, 150).

Plaintiff returning to the medical room again at about 5:05 p.m.,
after another spontaneous use of force prompted by Plaintiff’s
non-compliance when officers attempted to remove him from his cell
for transport. Def. Ex. H at 6, 12. Defendants Howell, Nieves, and
Box were involved in that use of force. Id. at 6. The post-useof-force medical exam revealed the right arm laceration and an
abrasion above Plaintiff’s left eye. Id. at 12-13.
22

Defendants

complied

with

the

Court’s

Order

to

provide

Plaintiff additional time to review his medical records. See Def.
Notice of Compliance (Doc. 142); Order (Doc. 148). Since completing
his call-outs, Plaintiff has chosen to stand on his Response,
though he has provided no additional records for the Court’s
consideration. See Pl. Notice (Doc. 151) (stating Plaintiff has
“no

choice

but

to

stand

on

his

already

filed

Response

and

exhibits”). Instead of supplementing his Response, Plaintiff filed
a one-page notice (Doc. 154; Notice), asking the Court to take
judicial notice of an Eleventh Circuit opinion finding bruises,
swelling, loosened teeth, and a cracked dental plate constitute
more than de minimis injuries. See Notice at 1 (citing Hasemeier
v. Shepard, 252 F. App’x 282 (11th Cir. 2007)).
Despite having been provided countless hours to review his
medical records, Plaintiff continues to assert Defendants are
withholding some of his medical records. See Motions (Docs. 143,
146, 149). In one such motion (Doc. 143), Plaintiff acknowledged
Defendants arranged for him to review a disk containing his medical
records from 2012 and part of 2013; however, Plaintiff said records
for the remainder of 2013 and beyond were not provided.8

Defendants’ attorney certified Defendants complied with the
Court’s Order by providing Plaintiff fourteen and one-half hours
to review the medical and mental health records Defendants had in
their possession. See Response to Motion (Doc. 147). Defendants’
counsel stressed that Plaintiff was provided all records
Defendants possess, a total of 1,590 pages. As such, the Court
8

23

Plaintiff suggests the missing records will show he sustained
additional injuries other than a bruise above his eye. See Am.
Compl. at 15 (alleging injuries to his right shoulder and back);
Pl. Aff. ¶ 25 (asserting he sought medical treatment for his
shoulder

and

back

injuries).

In

his

deposition,

Plaintiff

testified he saw a doctor, who prescribed pain medications for his
shoulder injury. Pl. Depo. at 62. Plaintiff testified his back is
“messed up to this day,” and forces him to walk “real slow.” Id.
at 63. Plaintiff said he submitted “a lot” of sick-call requests
and

he

received

pain

medication

but

was

not

referred

to

a

specialist or provided any other treatment. Id.
Because Plaintiff contends medical records were destroyed or
are

missing

and

because

he

demonstrates

difficulty

obtaining

records that should exist if his allegations are true, there remain
genuine issues of material fact and credibility determinations for
resolution by a jury. Accordingly, Defendants’ motion is due to be
denied to the extent they ask the Court to find as a matter of law
Plaintiff is prohibited from seeking compensatory and punitive
damages. Whether Plaintiff can prove he sustained more than de
minimis injuries will be for a jury’s determination.

found Defendants complied with the Court’s Order and that Plaintiff
was afforded sufficient time to review the medical records in
Defendants’ possession. See Orders (Doc. 148, 150).
24

VI. Plaintiff’s Motion to Stay & Appointment of Counsel
Also before the Court is Plaintiff’s Motion to Stay the
proceedings (Doc. 152; Pl. Motion), because he contends Defendant
Woodall’s

supplemental

response

to

his

interrogatory

#21

was

insufficient and not in compliance with this Court’s Order (Doc.
148). Pl. Motion at 2-3. On June 3, 2019, the Court directed
Defendant

Woodall

to

supplement

his9

response

to

Plaintiff’s

interrogatory in which Plaintiff requested the following: “the
name, rank and identification number of each officer and inmate
who saw or heard or was in a position to see or hear or who is
believed to have information about the incident [that] occurred on
June 22, 2012.” See Order (Doc. 148). The Court ordered Defendant
Woodall to undertake a reasonable inquiry to obtain information
available to him or under his control and to disclose to Plaintiff
any non-privileged responsive information.
In response to the Motion to Stay, Defendant Woodall contends
he provided information responsive to the request (Doc. 155), and
he provides a copy of the response (Doc. 155-1; Def. Interr. Resp).
In the interrogatory response, Defendant Woodall disclosed the
names of corrections staff who were present for the alleged useof-force incidents. Def. Interr. Resp. at 3. However, Defendant

Plaintiff refers to Defendant Woodall as a male. In a use-offorce file, Defendant Woodall is referenced as female. See Def.
Ex. B at 4. The Court will continue to use the male pronoun.
9

25

Woodall states he is unable to provide the names of inmates who
may have witnessed the incidents because, Woodall contends, a list
of inmates who were on the medical ward or housed on the mental
health unit would require a review of protected health information
subject to HIPAA protections.
Defendants’ counsel provides no explanation or analysis for
the

proposition

that

HIPAA

prevents

Defendant

Woodall

from

obtaining and providing to Plaintiff the names of inmates who may
have been witness to the alleged incidents. Plaintiff is not asking
for other inmates’ medical records or information about their
medical treatment. He is simply requesting the names of inmates
who may have witnessed the incidents, which Defendants assert did
not occur as Plaintiff describes.10
Given the Court’s ruling that Defendant Woodall is due to be
dismissed from this action, Plaintiff’s Motion to Stay, which is
based on a discovery dispute between Plaintiff and Defendant
Woodall, is to some extent moot. However, the Court recognizes
there remains a discovery dispute between the parties to the extent
Plaintiff’s efforts to identify potential witnesses have been

Because Defendants do not ask the Court to dismiss the claims
against those individuals Plaintiff alleges physically assaulted
him on June 22, 2012, the Court’s ruling on the Motion for Summary
Judgment prior to the resolution of this discovery dispute does
not prejudice Plaintiff.
10

26

hampered. The Court is unable to resolve the discovery dispute
based upon the briefing before it.
This Court has broad discretion in determining whether the
appointment of counsel is appropriate in a civil rights action.
Under these circumstances and at this point in the proceedings,
the Court finds Plaintiff is entitled to the assistance of a
trained practitioner. Defendants are represented by counsel, the
parties demand a jury trial, and there are sufficiently complex
factual and constitutional issues involved in this litigation.
Plaintiff will require assistance of counsel to help him develop
his theory of the case, including the allegations related to the
force incidents and the nature and extent of any injuries. He will
need assistance to present his case at a settlement conference
and, if the case does not settle, at pretrial conference and trial.
Therefore, the Court will refer this case to the Jacksonville
Division

Civil

Pro

Bono

Appointment

Program.

If

counsel

is

appointed to represent Plaintiff, the Court will afford counsel an
opportunity to file a motion to reopen discovery for a limited
period if counsel deems it necessary.
Accordingly, it is
ORDERED:
1.

Defendants’ Motion for Summary Judgment (Doc. 128) is

GRANTED in part and DENIED in part. The Motion is GRANTED to the
extent Defendants Woodall and Tucker are subject to dismissal
27

with prejudice for Plaintiff’s failure to state a claim against
them.

Judgment

to

that

effect

will

be

withheld

pending

adjudication of the action as a whole. See Fed. R. Civ. P. 54. In
all other respects, the Motion (Doc. 128) is DENIED as stated
herein.
2.

Plaintiff’s Motion to Stay (Doc. 152) is DENIED as moot

to the extent Defendant Woodall is subject to dismissal.
3.

This case is referred to the Jacksonville Division Civil

Pro Bono Appointment Program so the designated deputy clerk of
the Court may seek counsel to represent Plaintiff.
DONE AND ORDERED at Jacksonville, Florida, this 22nd day of
August, 2019.

Jax-6
c:
Corey Milledge
Counsel of Record

28