Johnson v. Anderson et al
Filing
41
ORDER denying 35 Motion to extend time for discovery; denying 36 motion to amend/correct; partially granting 20 Defendants' Motion for Summary Judgment, with directions to the Clerk to terminate Defendant Anderson and make the appropriate notation on the docket; directing the parties to notify the Court by September 12, 2019, as to whether they want a Magistrate Judge to conduct a settlement conference. Signed by Judge Marcia Morales Howard on 8/7/2019. (BL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
GREGORY JOHNSON,
Plaintiff,
v.
Case No. 3:17-cv-998-J-34JRK
TONY ANDERSON, et al.,
Defendants.
ORDER
I. Status
Plaintiff Gregory Johnson, an inmate of the Florida penal
system, initiated this action on August 23, 2017, by filing a Civil
Rights Complaint (Complaint; Doc. 1) with exhibits (P. Ex.). In the
Complaint, Johnson asserts claims pursuant to 42 U.S.C. § 1983
against the following Defendants: (1) Warden Tony Anderson; (2)
Sergeant Morgan McKinley; (3) Corrections Officer Ray Bryant; and
(4) Captain Isiah Griffin. He alleges that the Defendants violated
his federal constitutional rights when they used excessive force
against him and/or allowed the use of excessive force against him
on December 28, 2016, at Hamilton Correctional Institution (HCI).
He seeks compensatory and punitive damages as well as injunctive
and declaratory relief.
This matter is before the Court on Defendants' Motion for
Summary Judgment (Motion; Doc. 20). They submitted exhibits in
support of their summary judgment request. See Def. Exs. A-I (Docs.
20-1 through 20-10); Def. Supp. Exs. A; B (Docs. 27-1; 27-2).1 The
Court advised Johnson of the provisions of Federal Rule of Civil
Procedure 56, notified him that the granting of a motion to dismiss
or
a
motion
for
summary
judgment
would
represent
a
final
adjudication of this case which may foreclose subsequent litigation
on the matter, and gave him an opportunity to respond to the
Motion. See Summary Judgment Notice (Doc. 23); Order (Doc. 6).
Johnson responded. See Response to Summary Judgment (Response; Doc.
38); Declaration in Opposition to Defendants' Motion for Summary
Judgment (Johnson Decl.; Doc. 37). Defendants' Motion is ripe for
review.
II. Plaintiff's Allegations
In his Complaint, Johnson asserts that Defendant McKinley
sprayed him with chemical agents and "pummeled" him with punches
and kicks on December 28, 2016, at HCI. Complaint at 5.2 He avers
that Defendants Bryant and Griffin assisted McKinley instead of
trying to stop McKinley's assaultive behavior. See id. According to
Johnson, Defendant Anderson allowed his officers to use excessive
force against Johnson, and authorized Johnson's transfer to another
1
With the Court's permission, see Order (Doc. 24), the
Defendants filed four digital video disks (videos) under seal. See
Defendants' Sealed Notice (Doc. 28); Def. Exs. D; E.
2
The Court cites to the document and page numbers as assigned
by the Court's Electronic Case Filing System.
2
institution that same day, so Johnson could not identify the
"involved officers." Id.
As to the underlying facts of his claims, Johnson states that
he experienced psychological issues on December 28, 2016, due to a
lengthy history of depression as well as "situations" in the
dormitory that motivated him to declare a psychological emergency.
Id. at 7. He maintains that McKinley and Corrections Officer Roman
were conducting the afternoon count when McKinley told Johnson that
he would address Johnson's concerns after the count. See id.
According to Johnson, McKinley "motioned" for Johnson to "get up"
and "follow him" to the laundry room. Id. Johnson asserts that he
told McKinley that he was "declaring a psychological emergency" to
avoid the dormitory's negative effect on his mental health. Id. He
alleges that McKinley sprayed him with chemical agents in the
laundry room, and both McKinley and Bryant "pummeled" him "with
kicks and punches" until he "fell unconscious." Id. He states that
Defendant Griffin kicked him in his mid-section, and Griffin and
Bryant failed to stop McKinley's assault on him. See id. at 5. He
avers that McKinley and Bryant ordered him to "stop resisting," but
he "was not resisting at all." Id. at 7. He states that they placed
hand and leg restraints on him and carried him to confinement. See
id. According to Johnson, he "felt a sharp pain to [his] lower
back" that restored him to consciousness, as he heard McKinley
comment on the word "killer" tattooed on Johnson's back. Id. at 7-
3
8. Johnson avers that when he heard someone ask about the cuts on
his back, he coughed as he tried to reply. See id. at 8. He
maintains that he did not spit, but instead coughed "as a reflex
from being sprayed" with chemical agents. Id. He also asserts that
his "personal sneakers" were confiscated and not returned. See id.
Johnson avers that officers "constantly" sprayed him with
chemical agents while he was in hand restraints and "disoriented"
in a decontamination shower. Id. He states that he screamed for
help and "finally gain[ed] [his] bearings" and permitted them to
remove the hand restraints, so he could change his clothes and
transfer to another decontamination shower. Id. Johnson maintains
that he was "scared" and "did not trust anyone not even the nurse"
because he feared "being poisoned with dirty or used equipment or
something."
Id.
He
Corrections
(FDOC)
alleges
that
"emergency
the
Florida
transferred"
Department
him
to
of
another
institution where he was assigned to close management one (CM1)
confinement due to McKinley's "false documents" associated with
disciplinary reports (DR(s)) that he wrote. Id. at 8-9. He states
that he suffers with vision and teeth problems as a result of the
incidents. See id. at 9.
III. Summary Judgment Standard
Under
Rule
56
of
the
Federal
Rules
of
Civil
Procedure
(Rules(s)), "[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and
4
the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a). The record to be considered on a motion for summary
judgment may include "depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including
those
made
interrogatory
for
purposes
answers,
or
of
the
other
motion
only),
materials."
Fed.
admissions,
R.
Civ.
P.
56(c)(1)(A).3 An issue is genuine when the evidence is such that a
reasonable jury could return a verdict in favor of the non-moving
party. 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
3
Rule 56 was revised in 2010 "to improve the procedures for
presenting and deciding summary-judgment motions." Rule 56 advisory
committee's note 2010 Amends.
The standard for granting summary judgment
remains unchanged. The language of subdivision
(a) continues to require that there be no
genuine dispute as to any material fact and
that the movant be entitled to judgment as a
matter of law. The amendments will not affect
continuing development of the decisional law
construing and applying these phrases.
Id. "[A]lthough the interpretations in the advisory committee['s]
notes are not binding, they are highly persuasive." Campbell v.
Shinseki, 546 F. App'x 874, 879 n.3 (11th Cir. 2013). Thus, case
law construing the former Rule 56 standard of review remains
viable.
5
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 trial.
See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.
1991). "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. 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)).
IV. Summary of the Arguments
In the Motion, Defendants assert that there are no genuine
issues of material fact, and therefore, the Court should grant
6
summary judgment in their favor. They state that Johnson fails to
state a claim against Defendant Anderson, see Motion at 10-15, and
that they are entitled to qualified immunity, see id. at 6-10.
Defendants
maintain
that
there
are
three
related
incidents
involving Johnson on the afternoon of December 28, 2016: (1)
McKinley's use of chemical agents; Bryant and Griffin's failure to
intervene; and McKinley, Bryant, and Griffin's punching and kicking
Johnson,4 see id. at 2-3; (2) Griffin's directive to four officers
to carry Johnson to a decontamination shower, and use of force to
subdue Johnson; see
id.
at 3; and, (3) Defendant Anderson's
authorization for a corrections officer's use of chemical agents
while Johnson was confined in a decontamination shower, see id. at
4.
In his Response, Johnson asserts that he relies on his
declaration (Doc. 37), deposition (Def. Ex. I, Doc. 20-10 (P.
Depo.)), and medical records attached to his Complaint (Doc. 1 at
11-12) to show that there are genuine issues of material fact that
preclude summary judgment in Defendants' favor. See Response at 1819. He also asks the Court to strike Defendants' Motion because it
is "confusing" and includes false facts. Id. at 19. Additionally,
Johnson requests leave to amend his Complaint, see id. at 5, 24,
and reopen discovery, see id. at 5-8.
4
The Court will refer to these events as the laundry-room
incident.
7
V. Analysis
A. Eighth Amendment Use of Excessive Force
and Failure to Intervene
Johnson asserts that Defendant McKinley sprayed him with
chemical agents and kicked and punched him on December 28, 2016, in
the HCI laundry room. See Complaint at 5. He avers that Defendants
Bryant and Griffin failed to stop McKinley's attack on Johnson and
joined McKinley in his assaultive efforts. See id. According to
Johnson, Defendant Anderson allowed his subordinate officers to use
excessive
force
against
Johnson,
and
thereafter
authorized
Johnson's transfer to another institution to thwart Johnson's
ability to identify the officers involved in the excessive force.
See id. With respect to the appropriate analysis in an excessive
use of force case, the Eleventh Circuit has explained.
[O]ur core inquiry is "whether force was
applied in a good-faith effort to maintain or
restore
discipline,
or
maliciously
and
sadistically to cause harm." Hudson v.
McMillian, 503 U.S. 1, 112 S.Ct. 995, 999, 117
L.Ed.2d 156 (1992). In determining whether
force
was
applied
maliciously
and
sadistically, we look to five factors: "(1)
the extent of injury; (2) the need for
application of force; (3) the relationship
between that need and the amount of force
used; (4) any efforts made to temper the
severity of a forceful response; and (5) the
extent of the threat to the safety of staff
and inmates[, as reasonably perceived by the
responsible officials on the basis of facts
known to them]..." Campbell v. Sikes, 169 F.3d
1353, 1375 (11th Cir. 1999) (quotations
8
omitted).[5] However, "[t]he Eighth Amendment's
prohibition of cruel and unusual punishments
necessarily
excludes
from
constitutional
recognition de minimis uses of physical force,
provided that the use of force is not of a
sort repugnant to the conscience of mankind."
Hudson,
112
S.Ct.
at
1000
(quotations
omitted).
McKinney v. Sheriff, 520 F. App'x 903, 905 (11th Cir. 2013) (per
curiam). "When considering these factors, [courts] 'give a wide
range
of
deference
to
prison
officials
acting
to
preserve
discipline and security, including when considering decisions made
at the scene of a disturbance.'" Fennell v. Gilstrap, 559 F.3d
1212, 1217 (11th Cir. 2009) (per curiam) (quoting Cockrell v.
Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007)).
"The Eighth Amendment's prohibition of cruel and unusual
punishments necessarily excludes from constitutional recognition de
minimis uses of physical force, provided that the use of force is
not of a sort repugnant to the conscience of mankind." Hudson v.
McMillian,
503
U.S.
1,
9-10
(1992)
(internal
quotations
and
citations omitted). Indeed, not "every malevolent touch by a prison
guard gives rise to a federal cause of action." Id. at 9 (citation
omitted). "While a lack of serious injury is relevant to the
inquiry, '[i]njury and force . . . are only imperfectly correlated
and it is the latter that ultimately counts.'" Smith v. Sec'y,
Dep't of Corr., 524 F. App'x 511, 513 (11th Cir. 2013) (per curiam)
5
See Whitley v. Albers, 475 U.S. 312, 321 (1986).
9
(quoting Wilkins v. Gaddy, 559 U.S. 34, 38 (2010)). "A prisoner may
avoid summary judgment, 'only if the evidence viewed in the light
most
favorable
to
him
goes
beyond
a
mere
dispute
over
the
reasonableness of the force used and will support a reliable
inference of wantonness in the infliction of pain.'" Stallworth v.
Tyson, 578 F. App'x 948, 953 (11th Cir. 2014) (quoting Brown v.
Smith, 813 F.2d 1187, 1188 (11th Cir. 1987)).
Moreover, "an officer can be liable for failing to intervene
when another officer uses excessive force." Priester v. City of
Riviera Beach, Fla., 208 F.3d 919, 924 (11th Cir. 2000); Ensley v.
Soper, 142 F.3d 1402, 1407–08 (11th Cir. 1998). This liability,
however, only arises when the officer is in a position to intervene
and fails to do so. See Keating v. City of Miami, 598 F.3d 753, 764
(11th Cir. 2010); see also Fils v. City of Aventura, 647 F.3d 1272,
1290 n.21 (11th Cir. 2011); Brown v. City of Huntsville, 608 F.3d
724, 740 n.25 (11th Cir. 2010) ("Because the relevant events
happened so quickly, the record does not reflect any point at which
[the officer] could have intervened to prevent [another officer's]
use of excessive force . . . .").
1. The Laundry Room Incident
Excessive Use of Force and
Failure to Intervene
According to Johnson, Defendant McKinley unjustly sprayed him
with chemical agents, Defendants Bryant and Griffin failed to stop
McKinley's excessive use of force, and the three Defendants punched
10
and kicked Johnson. See Complaint at 5. In an Incident Report,
Defendant McKinley provided the following narrative, in pertinent
part:
On December 28, 2016 at approximately 4:03 PM,
while assigned as the E-Dormitory Housing
Supervisor, Officer Ray Bryant and I were
present near the Laundry Room entrance door on
Wing Two in E-Dormitory with Inmate JOHNSON,
Gregory DC#W08280, who had become disruptive
during the commencement of the afternoon
count.[6] While counseling with inmate JOHNSON
he became argumentative and began yelling
obscenities towards me, shouting "F[-]ck You!
You bout to get some Rec!"[7] I gave inmate
JOHNSON multiple orders to cease his actions,
as I simultaneously retrieved my assigned OC
Chemical Agent Canister[.] Inmate JOHNSON then
began rushing towards me with clenched fists,
and it then became necessary to reactively
utilize my assigned Sabre Red OC (Oleoresin
Capsicum) MK-4 High Volume Streamer, AX# 10-4,
and administer a continuous stream of chemical
agent to the upper torso and facial area of
inmate JOHNSON, in an attempt to gain
compliance from inmate JOHNSON and cease his
attack. Inmate JOHNSON continued his attack,
yelling obscenities and striking me in the
face. At that time I exhausted my Chemical
Agent[s] Canister and then assumed a defensive
stance and struck inmate JOHNSON in the face
and upper torso, with a clenched fist, in
order to defend myself and cease Inmate
JOHNSON from striking me. Officer Ray Bryant
6
Defendants submitted a two-minute fixed-wing video of HCI's
E dormitory on December 28, 2016, at 4:02 p.m. See Def. Ex. E
(sealed). The video captures two corrections officers conducting
the afternoon count. According to the video, Johnson, who occupied
the third bed on the right-side of the room, put his shoes on,
followed the two officers who had finished the count, and left the
area.
7
According to Johnson, "rec" is "a term used to challenge
someone to fight." Johnson Decl. at 4; see Complaint at 7.
11
was present and obtained a hold to inmate
JOHNSON'S upper torso, as I obtained a hold to
inmate JOHNSON'S extremities[.] I then with
the assistance of Officer Bryant forced inmate
JOHNSON to the floor and utilized knee spikes
to
distract
inmate
JOHNSON
from
his
resistance. Officer Bryant and I were able to
maneuver inmate JOHNSON chest down on the
floor, and utilize the floor to immobilize
inmate JOHNSON'S upper torso and apply wrist
restraints. Officer Benjamin Roman was present
in the dormitory and arrived on scene.[8]
Officer Roman initiated the Incident Command
System (ICS) utilizing his assigned hand held
radio
and
requested
the
assistance
of
additional security staff. Officer Bryant and
I then continued utilizing the floor to
immobol[ize] inmate JOHNSON until additional
security
staff
arrived
on
scene.
When
additional security staff arrived, they
obtained a hold to inmate JOHNSON[,] applied
leg restraints[,] and inmate JOHNSON was
assisted to a standing position. At that
time[,] all force ceased by me. Inmate JOHNSON
immediately refused to walk and lowered
himself back to the floor. The responding
additional security staff members then lifted
inmate JOHNSON utilizing a chest up four man
carry and transported inmate JOHNSON from the
dormitory without further incident. I am
trained in the use of Chemical Agents as
reflected on my Weapons Card.
Def. Ex. B, Incident Report, Doc. 20-3 at 5-6. McKinley wrote DRs
against Johnson for disobeying an order and attempted battery on a
corrections
officer,
and
Johnson
was
found
guilty
of
both
infractions. See Def. Exs. F, Doc. 20-7 at 2-3; G, Doc. 20-8 at 23. Defendant Bryant provided a similar factual account of what had
transpired in the laundry room.
8
See Def. Ex. B, Incident Report, Doc. 20-3 at 20 (Officer
Roman's narrative).
12
On December 28, 2016 at approximately 4:03 pm,
while assigned as the Internal Security
Officer, I was present in E-Dormitory Wing Two
near the Laundry Room door when Inmate
JOHNSON, Gregory DC#W08280 began striking
Sergeant Morgan McKinley in the face and upper
torso. I assisted Sergeant McKinley by
obtaining a hold to inmate JOHNSON's upper
torso and with the assistance of Sergeant
McKinley we forced inmate JOHNSON to the
floor. Sergeant McKinley obtained a hold to
inmate JOHNSON's left upper extremity as he
continued to attempt to strike staff present.
I attempted to obtain a hold to inmate
JOHNSON's right upper extremity when he struck
me with a clenched fist on the side of my
face. I obtained a hold to inmate JOHNSON's
arm as Sergeant McKinley utilized knee spikes
as a distraction tactic, in order to roll
inmate JOHNSON face down [o]n the floor so
wrist restraints could be applied. Sergeant
McKinley and I were able to maneuver inmate
JOHNSON chest down on the floor and place him
in wrist restraints. I then utilized the floor
to immobilize inmate JOHNSON until additional
security staff arrived. At that time all force
ceased by me.
Id. at 17.
In
support
of
Defendants'
Motion,
McKinley
and Bryant
submitted similar declarations as to what occurred with Johnson in
the laundry room. See Def. Supp. Exs. A, Doc. 27-1, Declaration of
Morgan McKinley (McKinley Decl.); B, Doc. 27-2, Declaration of Ray
Bryant
(Bryant
Decl.).
Additionally,
Griffin
provided
declaration, stating in pertinent part:
On December 28, 2016 I was working as the
Shift Supervisor at Hamilton Correctional
Institution, Annex. At around 4:00 PM I
received a radio call about an attack on
officers by an inmate, and a use of force
which occurred in response to the attack. Upon
13
a
receipt of the radio call, I responded to the
scene. I determined that chemical agents and
physical force had to spontaneously be used
against Plaintiff by Sergeant Morgan McKinley
and Officer Ray Bryant. The Plaintiff did not
appear to have any injuries. However, Sergeant
McKinley appeared to have injuries to his head
and facial area. I then had Sergeant McKinley
and Officer Bryant report to medical for
medical assessment.
Def. Ex. C, Doc. 20-4, Declaration of Isiah Griffin (Griffin Decl.)
at 2. According to McKinley and Bryant's declarations, McKinley had
minor injuries (swelling on the top of his head and a swollen left
eye), see McKinley Decl. at 3,9 and Bryant had no injuries, see
Bryant Decl. at 2.
In a declaration opposing Defendants' summary judgment motion,
Johnson describes the incident as follows:
During count[,] I spoke[] to Sergeant
McKinley attempting to declare a psychological
emergency. He advised me to hold on until he
finish[ed] counting to speak to him.
Sergeant McKinley returned, walked me to
the laundry room, and said it look[s] like you
want some rec. . . .
I urgently told him I am declaring a
psychological emergency[.] I don't want to
fight.
Sergeant McKinley had two officer[s][10]
already in the laundry room awaiting and
9
See Def. Ex. B, Doc. 20-3, Diagram of Injury for Morgan
McKinley, at 30.
10
According to Johnson, he has not identified a "third
officer" who was allegedly present with Defendants McKinley and
Bryant in the laundry room. Johnson Decl. at 5 n.1; P. Depo. at 25.
14
ordered them to call back up before coming
towards me while preparing to fight (took off
his shades and hat[] and reach[ed] for his
canister on his belt) rushed me once he
sprayed me hitting me in the eyes.
To show submission[,] I was on my knees
with my hands up trying to plead with him. He
answered my pleadings with gas[] strikes[,]
punches[,] and kicks with the other officers
beating on me too while I was blinded.
This onslaught continued even after
several officers arrived who got in on the
beating. I felt multiple boots[,] fist
blows[,] twisting of my extremities in effort
to break them.
While on the floor, Sergeant McKinley
[was] on top of me hit[t]ing while jeering
[and] repeating the ph[r]ase on my tattoo. I
snatched my limbs back[,] put them close into
my body[,] and my hands behind my back to show
I am not fighting back or resisting but they
continued [and] tried to break limbs and
strike me while theatrically yel[ling] out
"stop resisting, stop resisting."
I was get[t]ing hit with a weapon[,]
either the chemical agents canister or radio
from the sound of it and eventually I passed
out.
Johnson Decl. at 4-5 (footnote omitted). In his deposition, Johnson
provided a similar account of what had transpired in the laundry
room with Defendants McKinley, Bryant, and Griffin. See P. Depo. at
12-29.
Upon review of the record, Defendants' Motion is due to be
denied. At a minimum, the record before the Court reflects genuine
issues of material fact as to whether Defendants McKinley, Bryant,
and Griffin used an excessive amount of force upon Johnson, and
15
whether Bryant and Griffin failed to intervene to stop McKinley's
use of excessive force. While Johnson and Defendants McKinley,
Bryant, and Griffin agree that McKinley and Bryant used force, the
parties present markedly different accounts regarding whether
McKinley and Bryant used force in a good-faith effort to maintain
or restore discipline, or applied it maliciously and sadistically
to cause harm. Johnson asserts that Defendants McKinley, Bryant,
and Griffin's alleged assaultive behavior was unnecessary and
excessive,
and
involved
kicking,
punching,
and
hitting
while
Johnson was not resisting. In contrast, Defendants McKinley and
Bryant maintain that they used only necessary force to restore
order, bring Johnson into compliance with verbal orders, and cease
Johnson's combative behavior. Defendant Griffin maintains that he
arrived on the scene after McKinley and Bryant had subdued Johnson.
See Griffin Decl.
The United States Supreme Court has acknowledged that the
extent of the injury is a factor that may provide some evidence of
the amount of force applied and whether the use of force was
necessary under the specified circumstances.
This is not to say that the "absence of
serious injury" is irrelevant to the Eighth
Amendment inquiry. Id. at 7, 112 S.Ct. 995.[11]
"[T]he extent of injury suffered by an inmate
is one factor that may suggest 'whether the
use of force could plausibly have been thought
necessary'
in
a
particular
situation."
11
Hudson, 503 U.S. 1.
16
Ibid.(quoting Whitley, 475 U.S. at 321, 106
S.Ct. 1078). The extent of injury may also
provide some indication of the amount of force
applied. . . .
Injury and force, however, are only
imperfectly correlated, and it is the latter
that ultimately counts. . . .
Wilkins v. Gaddy, 559 U.S. 34, 37-38 (2010) (per curiam). However,
a court ultimately should decide an excessive force claim based on
the nature of the force used rather than the extent of the injury.
Id. at 38.
Johnson maintains that Suwannee Correctional Institution (SCI)
medical
personnel
documented
his
injuries
the
following
day
(December 29). See Response at 18 (citing P. Ex., Emergency Room
Record and Diagram of Injury, Doc. 1 at 11-12). The Emergency Room
Record
lists
the
following
injuries:
(1)
right-side
facial
swelling; (2) 4.5 centimeter abrasion to the right of his midline
scalp; (3) left-side neck swelling; (4) right wrist abrasions; (5)
left wrist abrasions; (6) mild swelling and tenderness to his right
inner knee; (7) red, swollen right large toe with swelling two
inches above the toe; (8) two small left shoulder abrasions, each
measuring 1 centimeter; and (9) a right shoulder "rub abrasion,"
measuring about 3 centimeters. P. Ex., Doc. 1 at 12. The SCI
Diagram of Injury states that Johnson could not stand on his right
leg due to a tender, swollen knee, "but [there was] no deformity to
indicate a broken bone or joint dislocation. . . ." Id. At
deposition, Johnson stated that his "major injuries" as a result of
17
the December 28th incidents were his displaced jaw and broken toe.
P.
Depo.
at
43.
He
acknowledged
that
SCI
medical
personnel
accurately documented his injuries on the December 29th Diagram of
Injury. See id. at 46.
Here, the parties offer significantly different accounts of
Defendant McKinley's use of force, the motivation for McKinley's
decision to spray Johnson with chemical agents and force Johnson to
the ground, and the involvement and motivations of Bryant and
Griffin. On this record, the Court finds that there remain genuine
issues
of
Amendment
material
claims
fact
relating
with
to
respect
the
to
December
Plaintiff's
28th
Eighth
laundry-room
incident against Defendants McKinley, Bryant, and Griffin. As such,
Defendants' Motion is due to be denied.12
2. Use of Force During the Four-Man Escort
According to Johnson, corrections officers placed hand and leg
restraints on him, and carried him to the first decontamination
shower. See Complaint at 7. In a declaration, Defendant Griffin
describes what transpired after the chemical spraying in the
laundry room.
12
"[B]ecause liability can be imposed upon prison guards who
are present at the scene and who are in a position to intervene but
fail to take reasonable steps to stop excessive force by other
guards," see Clark v. Argutto, 221 F. App'x 819, 826 (11th Cir.
2007), and since Johnson's Eighth Amendment failure to intervene
claims against Bryant and Griffin are closely intertwined with his
excessive use of force claim against McKinley, the summary judgment
Motion will be denied as to the failure to intervene claims.
18
After Sergeant McKinley and Officer Bryant
left the area, myself, and Sergeants Benjamin
Griffith, John Clark, Edgar Soules, and John
Buda attempted to escort Plaintiff for a
decontamination shower. However, Plaintiff
refused to get up and walk, so I had the
Sergeants pick him up and carry him,
necessitating an additional use of force
against Plaintiff. Eventually a wheelchair
arrived, and I had Plaintiff placed in the
wheelchair for transport so that the officers
no longer needed to carry him. During the
escort, Plaintiff continued to be combative
and attempted to break free of the officers'
grasp and bite and spit on officers. Based on
Plaintiff's behavior, a spit shield was placed
on Plaintiff. At around 4:17 PM[,] Plaintiff
arrived at a shower cell for a decontamination
shower.
Griffin Decl. at 1 (emphasis added). Sergeants Griffith, Clark,
Soules,
and
Buda
(the
escorting
officers)
provided
similar
accounts. See Def. Ex. B, Doc. 20-3 at 9, 12, 18, 19 (stating they
participated in a "four man carry" of Johnson with each holding one
of Johnson's extremities). In response, Johnson asserts that he was
not combative during the escort, but instead was defenseless as the
four officers "hog-tied" him, and carried him to a decontamination
shower. Response at 13. In his declaration, Johnson states, in
pertinent part:
I regain[ed] consciousness hog-tied [and] four
men carried [me] outside [b]linded from the
chemical agents in my eyes and coughing from
swallow[ing] some[.] [T]he officers yelled
he's spit[t]ing [and] forcefully dropped me[,]
gassed me[,] str[uck] me until I lost
consciousness again.
19
Johnson Decl. at 5. At deposition, Johnson stated that the officers
placed a spit shield on him, and "knocked" him out again. P. Depo.
at 30. He had "no idea" how the officers knocked him out because he
could not see anything due to the chemical agents that McKinley had
applied in the laundry room. Id. It appears that, for the most
part,
Johnson's
use-of-force
assertions
are
against
"the
transporting officers" who are not named as Defendants. Response at
13; see P. Depo. at 30; Johnson Decl. at 5. Nevertheless, Johnson
complains that Defendant Griffin "was present in the laundry room"
and kicked him in the mid-section. Complaint at 5.
Again, the parties offer significantly different accounts of
Defendant Griffin's participation in transporting Johnson from the
laundry room to the decontamination shower. On this record, the
Court finds that there remain genuine issues of material fact with
respect to Plaintiff's Eighth Amendment excessive-use-of-force
claim (relating to the transportation of Johnson from the laundry
room to the decontamination shower) against Defendant Griffin. As
such, Defendants' Motion is due to be denied.
3. Chemical Spraying at the First Decontamination Shower
Johnson asserts that he was "constantly" sprayed with chemical
agents" while confined in the first decontamination shower on
December 28, 2016. See Complaint at 8. In an Incident Report,
Defendant
Griffin
described
what
20
transpired
after
officers
transported Johnson to the H-Dormitory confinement housing unit and
placed him in the wing-one, number-one decontamination shower.
Inmate JOHNSON, at approximately 4:17 PM
complied with orders given and began his
decontamination shower. At approximately 4:22
PM Inmate JOHNSON then began yelling in the
shower cell attempting to incite other inmates
on
the
Confinement
Wing
creating
a
disturbance.
Warden
Tony
Anderson
was
contacted and authorized the use of Chemical
Agents to quell inmate JOHNSON's disturbance
and physical resistance to lawful commands.
The use of OC [(Oleoresin Capsicum (pepper
spray))] chemical agents was necessitated and
consisted of two applications of OC Chemical
agent[s] and one subsequent application of CS
[(Orthochlorbenzal
Malononitrile
or
(Orthochlorobenzylidene
Malononitrile)]
Chemical agent in the form of Three (03) One
(01) second bursts, administered by Officer
David Noles.[13] At approximately 4:45 PM,
prior to the application of Organized Chemical
Force, RN Albert Booth was contacted and
attempted to utilize CIT (Crisis Intervention
Technique), due to inmate JOHNSON'S S-3 Mental
Health Grade, without result. Following the
administration of CS Chemical Agent, inmate
JOHNSON complied with orders given and was
removed from the Decontamination shower on
Wing One (01) of H-Dormitory and escorted by
uninvolved security staff suited in Cell
Extraction equipment, to the Wing Three (03)
decontamination shower. The cell extraction
equipment was utilized to reduce the risk of
injury to staff present, in the event that
inmate JOHNSON should resume his combative
behavior.
Inmate
JOHNSON
received
a
decontamination shower and ultimately received
a post use of force medical assessment,
completed by RN Albert Booth, with no injuries
noted, see attached DC4-708, Diagram of
Injury,
and
DC4-701C,
Emergency
Room
13
Officer David Noles provided a similar account. See Def. Ex.
B, Doc. 20-3 at 11.
21
Record.[14]
Def. Ex. B, Doc. 20-3 at 6; see Griffin Decl. at 1-2.
Defendants submitted the hand-held video, Def. Ex. D (sealed),
and the fixed-wing video, Def. Ex. E (sealed), that captured what
transpired while Johnson was in the first decontamination shower
from approximately 4:15 p.m. until 5:27 p.m. Johnson acknowledges
that the hand-held video recorded what had transpired. See P. Depo.
at 34. The video evidence shows that Johnson was noncompliant with
lawful commands, and therefore, a corrections officer sprayed him
with chemical agents at approximately 4:47, 4:54, and 5:15 p.m. See
Def. Exs. B, Doc. 20-3 at 3; D. The Use of Force Report states that
Johnson "became physically resistant to lawful commands and began
to incite other inmates in the dormitory resulting in the use of
Organized Chemical [(OC)] Force." Def. Ex. B, Doc. 20-3 at 3.
Johnson refused to get dressed, submit to handcuffs, and cease his
yelling. See Def. Ex. D. Defendant Griffin and other officers
periodically peered through the decontamination shower cell door to
check on Johnson's progress, counsel him about noncompliance, and
advise him to follow orders. See id.
At 4:32 p.m., when Defendant Griffin gave Johnson a "final
order" to get dressed, stand up, and submit to handcuffs, Johnson
complied. See id. Nevertheless, Johnson shouted to other inmates
14
See Def. Ex. B, Doc. 20-3 at 27-28, Emergency Room Record
and Diagram of Injury, dated December 28, 2016, at 4:50 p.m.
22
for help, and refused to quiet down. See id. At 4:45 p.m., Nurse
Booth approached the cell front and attempted to counsel Johnson,
but Booth's efforts were unsuccessful. See id. Defendant Griffin
directed an officer to turn off the fan, so the hand-held camera
footage could capture the sounds of the chemical-spray bursts. See
id. At 4:47 p.m., an officer sprayed Johnson through the cell flap
with three bursts. See id. Johnson began yelling to other inmates
again. See id. At 4:54 p.m., the same officer approached the cell
front and sprayed Johnson through the cell flap with three chemical
bursts. See id. Johnson stood up, showered, and continued shouting
to other inmates. See id. Later, he sat down on the floor, and
refused to stand up when the officers directed him to do so. See
id. At 5:02 p.m., when Johnson lowered himself to a sitting
position and attempted to stand, he lost his footing, fell and
struck the top of his head on the lower part of the shower cell
door. See Def. Exs. B, Doc. 20-3 at 6; D. Officers brought Johnson
dry clothes, and gave him a "last chance" to stand up for an escort
to the nurse. See Def. Ex. D. At 5:15 p.m., an officer sprayed
Johnson with chemical agents. See id. Johnson refused to put on his
dry clothes for the escort. See id.
Defendant Griffin called for a cell extraction team to remove
Johnson from the decontamination cell. See id. The team, however,
did not have to enter the cell because Johnson had ceased his
disorderly behavior. See id. Johnson walked backwards out of the
23
cell and knelt down, as the team members placed leg restraints on
him. See id. In the Incident Report, Griffin explained that the
extraction team was used "to reduce the risk of injury to staff
present" if Johnson resumed his combative behavior. Def. Ex. B,
Doc. 20-3 at 6; see Griffin Decl. at 1-2. The extraction team
escorted Johnson to a decontamination shower on wing three without
any incident. See Def. Ex. D. At 5:35 p.m., Johnson took off his
clothes and showered. See id. The extraction team escorted Johnson
to the medical department for an examination. See id. At 6:01 p.m.,
officers placed Johnson in a holding cell to await his transfer to
SCI. See id. Officers removed Johnson from the holding cell at
6:12, and placed him in a van for transportation to SCI at 6:15
p.m. See id.
Officer Patrick D. Stone, the hand-held camera operator, wrote
a DR against Johnson for inciting or attempting to incite riots.
See Def. Ex. H, Doc. 20-9 at 2-3. Officer Stone provided the
following facts to support the DR.
Inmate Johnson, Gregory DC #W08280 is being
charged with a violation of Chapter 33-601.314
F.A.C. Rules of Prohibited Conduct[] for (2-2)
inciting or attempting to incite riots,
strikes, mutinous acts, or disturbances conveying
an
inflammatory,
riotous,
or
mutinous communication by word of mouth, in
writing or by sign, symbol, or gesture. On
December 28, 2016 at approximately 4:20 PM, I
was assigned as camera operator for inmate
Joh[n]son, Gregory DC #W08208 post use of
force filming. During the filming process, I
heard inmate Johnson yelling on the wing in
[an] attempt to gain the attention of other
24
inmates on the wing[.] "All bloods rise up
with me."[15] "Stand the f[-]ck up." Inmate
Johnson was order[ed] to cease his action to
which inmate Johnson reluctantly complied. The
shift supervisor was notified and authorized
this report. Inmate Johnson will remain in
administrative confinement pending disposition
of this report for (2-2) inciting or
attempting to incite riots . . . .
See id. at 2.
The video evidence is reliable, and provides a chronology of
how the incident unfolded. The video does not show Defendant
Griffin or any extraction team members using excessive force upon
Johnson. Nor, does it show any unjustified chemical spraying.
Rather, it depicts Johnson as an unruly and noncompliant inmate who
was calling out for help from other inmates, and attempting to
incite other inmates. It also shows Defendant Griffin as he
monitored the decontamination cell front. Periodically, in an
orderly fashion, Griffin announced the progression of events in
front of the camera. Notably, Defendants McKinley, Bryant, and
Anderson were not present during any of the chemical spraying.
Moreover, the extraction team never entered the decontamination
shower cell. Instead, Johnson walked backwards out of the cell, and
knelt down while the extraction team members placed leg restraints
on him without incident. Such an organized and planned cell exit
15
At deposition, Johnson stated that he is a member of the
Bloods, a prison gang. See P. Depo. at 48. He said that the video
captured what he said. See id.
25
was necessary since Johnson had resisted lawful orders to submit to
restraints.
Given the evidence submitted by Defendants, the Court finds
they have met their initial burden of showing, by reference to
Griffin's declaration, the use of force report, and video evidence,
that appropriate and minimal force (three applications of chemical
agents) was used against Johnson. Thus, Johnson is required to
present evidence to show that there is a genuine issue for trial;
he has not done so. If this case were to proceed to trial, Johnson
would have only his testimony to support his claims. He has not
presented
any
refutation
of
the
Defendants'
evidence.
He
acknowledges that the hand-held video recorded what transpired.
All the exhibits submitted by Defendants support their position
that the chemical spraying was necessary, and only minimal force
was used.
Notwithstanding the ease with which a prisoner can make an
excessive force claim, in many excessive force cases the competing
testimony of the prisoner and the correctional officers can be
enough to defeat summary judgment. However, both the Supreme Court
and the Eleventh Circuit have recognized that summary judgment is
appropriate in certain scenarios even if there are conflicting
versions of events.
[W]hen "opposing parties tell two different
stories,
one
of
which
is
blatantly
contradicted by the record, so that no
reasonable jury could believe it," a court
26
should not adopt the contradicted version for
purposes of ruling on a motion for summary
judgment. Scott, 550 U.S. at 380[16] . . . .
This is so because when the non-movant's
assertion is "so utterly discredited" by the
record, no "genuine" dispute of material fact
exists sufficient to prompt an inference on
behalf of the non-movant. Id.
Singletary v. Vargas, 804 F.3d 1174, 1183 (11th Cir. 2015); see
Perez v. Suszczynski, 809 F.3d 1213, 1221 (11th Cir. 2016) ("[W]hen
opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt that version of the
facts for purposes of ruling on a motion for summary judgment."
(quotations and citation omitted)).
Here, given the strong and consistent statements of the
corrections officers, see Griffin Decl; Def. Ex. B, and the video
evidence, see Def. Exs. D; E, showing that neither Defendant
Griffin nor the extraction team used force upon Johnson, that
neither Defendant McKinley nor Defendant Bryant were present during
the incident, and that the corrections officer sprayed Johnson in
an attempt to bring him into compliance with lawful commands, and
the lack of corroborating evidence to support Johnson's claim, this
is the type of case envisioned by the Supreme Court in Scott, 550
U.S. 372, as to which summary judgment is appropriate. In light of
the evidence presented by Defendants and Johnson's failure to
16
Scott v. Harris, 550 U.S. 372 (2007).
27
provide any evidence other than his own uncorroborated version, no
reasonable jury could find for Johnson under these circumstances
surrounding
the
chemical
spraying.
See
generally
Goodman
v.
Kimbrough, 718 F.3d 1325, 1332 (11th Cir. 2013) (recognizing that
"to defeat a motion for summary judgment, [the plaintiff] must
adduce specific evidence from which a jury could reasonably find in
his favor; [t]he mere existence of a scintilla of evidence in
support of [his] position will be insufficient" (quotations and
citation omitted)). As such, Defendants' Motion is due to be
granted as to Johnson's Eighth Amendment claims relating to the
December 28th chemical spraying at the decontamination shower cell
against Defendants McKinley, Bryant, and Griffin.
4. Defendant Tony Anderson
Johnson
asserts
that
HCI
Warden
Anderson
authorized
his
subordinate officers to use excessive force on him. See Complaint
at 5. Defendant Anderson maintains that Johnson fails to state a
claim against him. See Motion at 10-15. In response, Johnson
acknowledges that Defendant Anderson was not personally present
during the incidents. See P. Depo. at 49. The Eleventh Circuit
Court of Appeals has instructed:
"Supervisory officials are not liable under
section 1983 on the basis of respondeat
superior or vicarious liability." Belcher v.
City of Foley, Ala., 30 F.3d 1390, 1396 (11th
Cir. 1994) (internal quotation marks and
citation omitted). "The standard by which a
supervisor is held liable in her individual
capacity for the actions of a subordinate is
28
extremely rigorous." Gonzalez, 325 F.3d at
1234 (internal quotation marks and citation
omitted).[17] "Supervisory liability occurs
either
when
the
supervisor
personally
participates in the alleged constitutional
violation or when there is a causal connection
between actions of the supervising official
and the alleged constitutional deprivation."
Brown v. Crawford, 906 F.2d 667, 671 (11th
Cir. 1990).
"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.'" Cottone,
326 F.3d at 1360 (citation omitted).[18] "The
deprivations that constitute widespread abuse
sufficient to notify the supervising official
must be obvious, flagrant, rampant and of
continued duration, rather than isolated
occurrences." Brown, 906 F.2d at 671. A
plaintiff can also establish the necessary
causal connection by showing "facts which
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," Gonzalez, 325 F.3d at 1235, or that a
supervisor's "custom or policy . . . resulted
in deliberate indifference to constitutional
rights," Rivas v. Freeman, 940 F.2d 1491, 1495
(11th Cir. 1991).
Danley v. Allen, 540 F.3d 1298, 1314 (11th Cir. 2008) (overruled on
other grounds as recognized by Randall v. Scott, 610 F.3d 701, 709
(11th
Cir.
2010)
(rejecting
the
application
of
a
heightened
pleading standard for § 1983 cases involving qualified immunity));
17
Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003).
18
Cottone v. Jenne, 326 F.3d 1352 (11th Cir. 2003).
29
see also Keith v. DeKalb Cty., Ga., 749 F.3d 1034, 1047-48 (11th
Cir. 2014). In sum,
To state a claim against a supervisory
defendant, the plaintiff must allege (1) the
supervisor's personal involvement in the
violation of his constitutional rights,[19] (2)
the existence of a custom or policy that
resulted in deliberate indifference to the
plaintiff's constitutional rights,[20] (3)
facts supporting an inference that the
supervisor directed the unlawful action or
knowingly failed to prevent it,[21] or (4) a
history of widespread abuse that put the
supervisor on notice of an alleged deprivation
that he then failed to correct. See id. at
1328–29 (listing factors in context of summary
judgment).[22] A supervisor cannot be held
liable under § 1983 for mere negligence in the
training or supervision of his employees.
Greason v. Kemp, 891 F.2d 829, 836–37 (11th
Cir. 1990).
Barr v. Gee, 437 F. App'x 865, 875 (11th Cir. 2011) (per curiam).
At deposition, Johnson stated that Anderson was responsible for the
19
See Goebert v. Lee Cty., 510 F.3d 1312, 1327 (11th Cir.
2007) ("Causation, of course, can be shown by personal
participation in the constitutional violation.").
20
See Goebert, 510 F.3d at 1332 ("Our decisions establish that
supervisory liability for deliberate indifference based on the
implementation of a facially constitutional policy requires the
plaintiff to show that the defendant had actual or constructive
notice of a flagrant, persistent pattern of violations.").
21
See Douglas v. Yates, 535 F.3d 1316, 1322 (11th Cir. 2008)
("Douglas's complaint alleges that his family informed [Assistant
Warden] Yates of ongoing misconduct by Yates's subordinates and
Yates failed to stop the misconduct. These allegations allow a
reasonable inference that Yates knew that the subordinates would
continue to engage in unconstitutional misconduct but failed to
stop them from doing so.").
22
West v. Tillman, 496 F.3d 1321 (11th Cir. 2007).
30
violations due to his position as the Warden. See P. Depo. at 51.
Thus, to the extent Johnson seeks to impose liability on Defendant
Anderson on the basis of respondeat superior, Defendants' Motion is
due to granted. Insofar as Johnson seeks to hold Defendant Anderson
responsible for Defendants McKinley, Bryant, and Griffin's actions,
the Court finds that Johnson fails to point to any evidence
suggesting that Anderson was personally involved in, or otherwise
causally connected to, the alleged violations of his federal
statutory or constitutional rights. See Complaint at 5; P. Depo. at
49-54. As such, Defendants' Motion is due to be granted as to
Johnson's Eighth Amendment claim against Defendant Anderson.
Next, Johnson asserts that Defendant Anderson deprived him of
his right to due process of law when he transferred Johnson to SCI.
See Complaint at 5. He states that the same-day transfer thwarted
his ability to identify the officers involved in the excessive use
of force. See id. Defendants maintain that "the most likely reason"
Johnson was transferred was because he had been involved in a
physical altercation with McKinley that resulted in injuries, not
to deprive Johnson of any due process. See Motion at 14-15 (citing
Def. Ex. B, Doc. 20-3 at 29-30 (documenting McKinley's injuries)).
Defendant McKinley wrote two DRs, and Officer Stone wrote a DR due
to Johnson's noncompliant behavior that afternoon. See Def. Exs. F;
G; H. Notably, "an inmate has no justifiable expectation that he
will be incarcerated in any particular prison within a State[.]"
31
Olim v. Wakinekona, 461 U.S. 238, 245 (1983) (footnote omitted);
see also Barfield v. Brierton, 883 F.2d 923, 936 (11th Cir. 1989)
(citing Meachum v. Fano, 427 U.S. 215 (1976)) (stating "inmates
usually possess no constitutional right to be housed at one prison
over another"). In light of the foregoing, Defendants' Motion is
due to be granted as to Johnson's due process claim against
Defendant Anderson.
B. Plaintiff's Request to Amend
Johnson seeks leave to amend his Complaint. See Motion for
Leave to Amend (Motion to Amend; Doc. 36). He asserts that he has
learned the identity of additional individuals that he was unable
to identify until Defendants submitted their summary judgment
exhibits. See Motion to Amend at 1. Johnson states that he wants to
add
all
involved
officers,
bystanders,
and
supervisors
as
Defendants. See Response at 24. He lists the following additional
individuals that he seeks to hold responsible for violation of his
federal constitutional rights: Major Jerry Shuler, Sergeant Zachary
Smith, Sergeant Edgar Soules, Sergeant John Buda, Sergeant Edward
Jussely,
Officer
Wayne
Haley,
Officer
Linda
Mercer,
Officer
Benjamin Roman, Officer David Noles, Officer Christopher Adams,
Officer Patrick D. Stone, Officer John Clark, and Registered Nurse
Albert Booth. See id. He also wants to amend "so he can properly
raise his claim against defendant Tony Anderson." See id. at 5.
Additionally, he states that he wants to reopen discovery so that
32
he can identify the third officer who was involved in the "initial
use of force with Bryant and McKinley." See Motion to Amend at 2.
Defendants oppose Johnson's request to amend. See Response to
Motion for Additional Discovery and Motion for Leave to Amend (Def.
Response; Doc. 39). They maintain that they would be substantially
prejudiced if the Court permitted Johnson to amend at this late
stage of the proceedings, especially when Johnson failed to engage
in timely discovery and was notified at his deposition that the
time for discovery had ended. See Def. Response at 3-4. They state
that Johnson fails to identify what claims he intends to bring
against the individuals he seeks to add as Defendants. See id. at
4.
Rule 15(a)(1), Federal Rules of Civil Procedure, establishes
that "[a] party may amend [the party's] pleading once as a matter
of course within" a certain time frame. Thereafter, a party may
amend its pleadings only upon leave of court or by obtaining
written consent of the opposing party. See Rule 15(a)(2). The rule
provides that "[t]he court should freely give leave when justice so
requires." Id. As a result, "[t]here must be a substantial reason
to deny a motion to amend." Laurie v. Ala. Ct. of Crim. App., 256
F.3d 1266, 1274 (11th Cir. 2001) (per curiam) (citation omitted).
Substantial reasons justifying a court's denial of a request for
leave to amend include "undue delay, bad faith or dilatory motive
on the part of the movant, repeated failure to cure deficiencies by
33
amendments previously allowed, undue prejudice to the opposing
party
by
virtue
of
allowance
of
the
amendment,
futility
of
amendment, etc. . . ." Foman v. Davis, 371 U.S. 178, 182 (1962);
see also Maynard v. Bd. of Regents of Div. of Univ. of Fla. Dep't
of Educ. ex rel. Univ. of S. Fla., 342 F.3d 1281, 1287 (11th Cir.
2003). In order to deny leave to amend, the Court must identify a
"justifying reason." Foman, 371 U.S. at 182.
Preliminarily, the Court notes that a request for affirmative
relief, such as a request for leave to amend a pleading, is not
properly made when simply included in a response to a motion. See
Fed. R. Civ. P. 7(b); see also Rosenberg v. Gould, 554 F.3d 962,
965 (11th Cir. 2009) ("Where a request for leave to file an amended
complaint simply is imbedded within an opposition memorandum, the
issue has not been raised properly.") (quoting Posner v. Essex Ins.
Co., 178 F.3d 1209, 1222 (11th Cir. 1999)). Thus, Johnson's request
for leave to amend included in his summary judgment response, see
Response (Doc. 38) at 24, is improper. The Court will not entertain
Johnson's request for relief included in his Response.
Next, Johnson's Motion to Amend (Doc. 36) is due to be denied
for failure to comply with Local Rules 3.01(a) and 3.01(g), United
States District Court, Middle District of Florida (Local Rule(s)).
Local Rule 3.01(a) requires a memorandum of legal authority in
support of a request from the Court. See Local Rule 3.01(a). Local
Rule 3.01(g) requires certification that the moving party has
34
conferred with opposing counsel in a good faith effort to resolve
the issue raised by the motion and advising the Court whether
opposing counsel agrees to the relief requested. See Local Rule
3.01(g). In addition to these deficiencies under the Local Rules,
the Motion to Amend also fails to satisfy the requirement that "[a]
motion for leave to amend should either set forth the substance of
the proposed amendment or attach a copy of the proposed amendment."
Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999); see also
McGinley v. Fla. Dep't of Highway Safety & Motor Vehicles, 438 F.
App'x 754, 757 (11th Cir. 2011) (affirming denial of leave to amend
where plaintiff did not set forth the substance of the proposed
amendment); United States ex. rel. Atkins v. McInteer, 470 F.3d
1350, 1361-62 (11th Cir. 2006) (same). Thus, the Court will deny
Johnson's Motion to Amend.
C. Plaintiff's Motion to Reopen Discovery
Johnson asserts that he needs more time for discovery. See
Motion for More Time for Discovery (Motion to Reopen Discovery;
Doc. 35). He states that he did not understand how to engage in
discovery until he was deposed on October 31, 2018, and blames
Defendants' counsel for "unfair gamesmanship" and misleading him at
deposition. See Motion to Reopen Discovery at 2. Defendants oppose
the Motion to Reopen. See Def. Response at 2-3. They maintain that
Johnson neither submitted any discovery to Defendants nor filed a
motion to extend the discovery deadline prior to the filing of
35
Defendants' summary judgment motion. See id. at 2. They state that
the first time Johnson requested any discovery from Defendants was
within his summary judgment response. See
id.
at 3. Johnson
acknowledges that he enumerated his discovery requests in his
summary judgment response. See Motion to Reopen at 2; Response at
5-8. At the October 31, 2018 deposition, Defendants' counsel
discussed the discovery process with Johnson, see P. Depo. at 5960, since the discovery deadline had passed the day before (October
30th). See Order (Doc. 18). Given the record, including Johnson's
failure to engage in timely discovery as well as waiting over seven
months to request to reopen discovery, the Motion to Reopen
Discovery is due to be denied.
D. Plaintiff's Request to Strike Defendants'
Motion for Summary Judgment
Johnson requests that the Court strike Defendants' Motion as
"confusing" and misleading. Response at 19. As previously stated,
a request for affirmative relief is not properly made when simply
included in a response to a motion. See Rosenberg, 554 F.3d at 965.
Thus, Johnson's request to strike included in his summary judgment
response, see Response (Doc. 38) at 19, is improper. Moreover, even
if it were proper to include such a request in his Response, the
request is otherwise due to be denied for failure to comply with
Local Rules 3.01(a) and 3.01(g). Thus, the Court will not entertain
Johnson's request for relief included in his Response.
36
In light of the foregoing, it is now
ORDERED AND ADJUDGED:
1.
Defendants' Motion for Summary Judgment (Doc. 20) is
PARTIALLY GRANTED as to Johnson's (1) Eighth Amendment claim
relating
to
the
December
28th
chemical
spraying
at
the
decontamination shower cell against Defendant Griffin (the third
incident), and (2) Eighth Amendment and due process claims against
Defendant Tony Anderson. Otherwise, the Motion is DENIED.23
2.
The Clerk shall terminate Defendant Tony Anderson and
make the appropriate notation on the docket.
3.
The parties are encouraged to discuss the possibility of
settlement and notify the Court if their efforts are successful. In
doing so, Plaintiff and Defendants are encouraged to maintain a
realistic approach in making and/or considering any settlement
offers. If the parties are unable to settle the case privately, and
want a Magistrate Judge to conduct a settlement conference, they
should notify the Court no later than September 12, 2019.
4.
Plaintiff's Motion for More Time for Discovery (Doc. 35)
is DENIED.
23
Johnson's remaining Eighth Amendment claims are (1)
Defendants McKinley, Bryant, and Griffin's excessive use of force
(first incident); (2) Defendants Bryant and Griffin's failure to
intervene (first incident); and (3) Defendant Griffin's excessive
use of force relating to the four-man escort of Johnson from the
laundry room to the decontamination shower cell (second incident).
37
5.
Plaintiff'S Motion for Leave to Amend (Doc. 36) is
DENIED.
DONE AND ORDERED at Jacksonville, Florida, this 7th day of
August, 2019.
sc 8/7
c:
Gregory Johnson, FDOC #W08280
Counsel of Record
38
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