Berger v. Carlton et al
Filing
73
ORDER granting in part and denying in part 61 Defendants' Motion for Summary Judgment. The Clerk shall enter judgment in favor of Defendant Michael Williams and make the appropriate notation on the docket. Notice due August 5, 2020. Signed by Judge Marcia Morales Howard on 7/6/2020. (JW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JACKIE BERGER,
Plaintiff,
v.
Case No. 3:17-cv-1191-J-34JBT
M.B. CARLTON
AND M.R. WILLIAMS,
Defendants.
ORDER
I. Status
Plaintiff Jackie Berger, an inmate of the Florida penal system, initiated this action
on October 24, 2017, by filing a pro se Civil Rights Complaint (Doc. 1). He filed an
Amended Complaint (Doc. 5) on December 6, 2017, and a Second Amended Complaint
(SAC; Doc. 27) on June 21, 2018. In the SAC, Berger asserts claims pursuant to 42
U.S.C. ' 1983 against Defendants Captain M.B. Carlton and Sergeant M.R. Williams. He
asserts that Defendants violated his Eighth Amendment right when they unjustly directed
the use of chemical agents and denied him a timely decontamination shower on January
20, 2017, at Suwannee Correctional Institution Annex (SCIA). As relief, he requests
compensatory and punitive damages.
This matter is before the Court on Defendants Carlton and Williams’ Motion for
Summary Judgment (Motion; Doc. 61). They submitted exhibits in support of the Motion.
See Def. Exs., Docs. 61-1 through 61-11; S-68 (sealed videos). 1 The Court advised
1
The Court cites to the document and page numbers as assigned by the Court’s
Electronic Case Filing System.
Berger 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 Order (Doc. 9); Summary
Judgment Notice (Doc. 64). Berger filed a response in opposition to the Motion. See
Memorandum in Opposition to Defendants’ Motion for Summary Judgment (Response;
Doc. 70) with exhibits (P. Exs., Docs. 70-1 through 70-4). The Motion is ripe for review.
II. Plaintiff’s Allegations2
In his verified SAC,3 Berger asserts that, at approximately 7:00 to 7:30 a.m. on
January 20, 2017, SCIA officers accused him of “causing, creating and inciting” a
disturbance in P dormitory’s quad two. SAC at 10. According to Berger, Defendant
Williams, the dormitory’s supervising sergeant, “allegedly” saw him “shouting obscenities”
at staff, kicking his cell door, and “encouraging other inmates to break the sprinkler
heads.” Id. Berger states that Williams reported his alleged misconduct to Defendant
Carlton. See id. He avers that when Carlton accused him of causing the disturbance, he
and his cellmate (Latwain McLaren, #U26804) explained that they were not the ones who
incited the disturbance. See id. According to Berger, Carlton heard other inmates (Allen
2
The recited facts are drawn from the SAC.
3
See Stallworth v. Tyson, 578 F. App’x 948, 950 (11th Cir. 2014) (citations
omitted) (“The factual assertions that [Plaintiff] made in his amended complaint should
have been given the same weight as an affidavit, because [Plaintiff] verified his complaint
with an unsworn written declaration, made under penalty of perjury, and his complaint
meets Rule 56’s requirements for affidavits and sworn declarations.”).
2
Willich #J39576 and Carlton Holliman #169976) kicking their doors and yelling, and
therefore asked them about their involvement in the disturbance. See id. at 10-11. Berger
states that Carlton ultimately discredited the inmates’ accounts and relied on Williams’
statement that Berger had shouted at staff and caused the disturbance. See id. at 11.
Berger avers that Carlton authorized the chemical spraying at approximately 8:30 a.m.,
and that an unknown officer sprayed chemical agents in Berger’s face, mouth, and eyes.
See id. at 11-12. According to Berger, the officer “held the trigger of the canister longer
than” the Florida Department of Corrections (FDOC) policy permits. Id. at 12. Additionally,
he states that Carlton neither permitted McLaren and him to submit to handcuffs instead
of being subjected to chemical agents nor allowed McLaren to exit the cell before the
chemical spraying. See id. at 11.
Berger further maintains that Carlton and Williams left him handcuffed in his cell
and denied him a decontamination shower for over ninety-five minutes. See id. at 12.
According to Berger, as a result of the chemical spraying and delayed decontamination
shower, he suffered injuries (partial blindness, blurred and deteriorating vision,
dermatological issues, lung congestion, uncontrollable wheezing, shortness of breath,
and constant coughing) that “led to months of medical attention.” Id. at 12-13.
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 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
3
“depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A). 4 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 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 non-moving party must then
4
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.
4
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)). “Summary judgment is improper, however, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Guevara v. NCL
(Bahamas) Ltd., 920 F.3d 710, 720 (11th Cir. 2019) (quotation marks and citation
omitted).
IV. Summary of the Arguments
In the Motion, Defendants Carlton and Williams request dismissal of Berger’s
claims against them because Berger failed to exhaust his administrative remedies, as
required by the Prison Litigation Reform Act (PLRA), before filing the instant lawsuit. See
Motion at 11-15. They also maintain that there are no genuine issues of material fact, and
therefore, the Court should grant summary judgment in their favor as to Berger’s Eighth
Amendment claims against them. See id. at 15-21. Additionally, Defendants assert that
they are entitled to qualified immunity. See id. at 21-26. Lastly, they maintain that Berger
5
is not entitled to compensatory and punitive damages under 42 U.S.C. § 1997e(e)
because he has not alleged any physical injury resulting from Defendants’ acts and/or
omissions. See id. at 26-30. In his Response, Berger states that he submitted grievances
that the FDOC failed to respond to, and therefore, he sufficiently exhausted his
administrative remedies. See Response at 5-8. He also maintains that Defendants are
not entitled to summary judgment in their favor because there remain genuine issues of
material fact as to his Eighth Amendment claims against them. See id. at 4-5.
V. Exhaustion of Administrative Remedies
A. PLRA Exhaustion
The PLRA requires an inmate wishing to challenge prison conditions to exhaust all
available administrative remedies before asserting any claim under 42 U.S.C. § 1983.
See 42 U.S.C. § 1997e(a). Nevertheless, a prisoner such as Berger is not required to
plead exhaustion. See Jones v. Bock, 549 U.S. 199, 216 (2007). Instead, the United
States Supreme Court has recognized that “failure to exhaust is an affirmative defense
under the PLRA[.]” Id. Importantly, exhaustion of available administrative remedies is “a
precondition to an adjudication on the merits” and is mandatory under the PLRA. Bryant
v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008). Not only is there a recognized exhaustion
requirement, “the PLRA … requires proper exhaustion” as set forth in the applicable
administrative rules and policies of the institution. Woodford v. Ngo, 548 U.S. 81, 93
(2006).
Because exhaustion requirements are designed to
deal with parties who do not want to exhaust, administrative
law creates an incentive for these parties to do what they
would otherwise prefer not to do, namely, to give the agency
6
a fair and full opportunity to adjudicate their claims.
Administrative law does this by requiring proper exhaustion of
administrative remedies, which “means using all steps that the
agency holds out, and doing so properly (so that the agency
addresses the issues on the merits).”
Id. at 90 (citation omitted). Indeed, “[p]roper exhaustion demands compliance with an
agency’s deadlines and other critical procedural rules[.]” Id.
In Ross v. Blake, the Supreme Court instructed that “[c]ourts may not engraft an
unwritten ‘special circumstances’ exception onto the PLRA’s exhaustion requirement.
The only limit to § 1997e(a)’s mandate is the one baked into its text: An inmate need
exhaust only such administrative remedies as are ‘available.’” 136 S. Ct. 1850, 1862
(2016). For an administrative remedy to be available, the “remedy must be ‘capable of
use for the accomplishment of [its] purpose.’” Turner v. Burnside, 541 F.3d 1077, 1084
(11th Cir. 2008) (quoting Goebert v. Lee Cty., 510 F.3d 1312, 1322-23 (11th Cir. 2007)).
In Ross, the Court identified three circumstances in which an administrative remedy would
be considered “not available.” Ross, 136 S. Ct. at 1859. First, “an administrative
procedure is unavailable when (despite what regulations or guidance materials may
promise) it operates as a simple dead end—with officers unable or consistently unwilling
to provide any relief to aggrieved inmates.” Id. Next, “an administrative scheme might be
so opaque that it becomes, practically speaking, incapable of use.” Id. Finally, a remedy
may be unavailable “when prison administrators thwart inmates from taking advantage of
a grievance process through machination, misrepresentation, or intimidation.” Id. at 1860.
The determination of whether an inmate exhausted his available administrative
remedies prior to pursuing a cause of action in federal court is a matter of abatement and
7
should be raised in a motion to dismiss or be treated as such if raised in a summary
judgment motion. Bryant, 530 F.3d at 1374-75 (citation omitted). Because failure to
exhaust administrative remedies is an affirmative defense, the defendant bears “the
burden of proving that the plaintiff has failed to exhaust his available administrative
remedies.” Turner, 541 F.3d at 1082. The Eleventh Circuit has articulated a two-step
process that the Court must employ when examining the issue of exhaustion of
administrative remedies.
After a prisoner has exhausted the grievance
procedures, he may file suit under § 1983. In response to a
prisoner suit, defendants may bring a motion to dismiss and
raise as a defense the prisoner’s failure to exhaust these
administrative remedies. See Turner, 541 F.3d at 1081. In
Turner v. Burnside we established a two-step process for
resolving motions to dismiss prisoner lawsuits for failure to
exhaust. 541 F.3d at 1082. First, district courts look to the
factual allegations in the motion to dismiss and those in the
prisoner’s response and accept the prisoner’s view of the
facts as true. The court should dismiss if the facts as stated
by the prisoner show a failure to exhaust. Id. Second, if
dismissal is not warranted on the prisoner’s view of the facts,
the court makes specific findings to resolve disputes of fact,
and should dismiss if, based on those findings, defendants
have shown a failure to exhaust. Id. at 1082-83; see also id.
at 1082 (explaining that defendants bear the burden of
showing a failure to exhaust).
Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1209 (11th Cir. 2015); see Pavao
v. Sims, 679 F. App’x 819, 823-24 (11th Cir. 2017) (per curiam).
B. Forfeiture of the Exhaustion Defense
Defendants Carlton and Williams maintain that Berger failed to exhaust his
administrative remedies as to his Eighth Amendment claims against them. See Motion at
11-15. The Eleventh Circuit has stated that “under Federal Rule of Civil Procedure
8
12(g)(2),[5] a defendant must raise the exhaustion defense in his first Rule 12 motion,
otherwise the defense is forfeited and cannot be raised in a later motion under Rule 12.”
Brooks v. Warden, 706 F. App’x 965, 968 (11th Cir. 2017) (footnote omitted). In the instant
action, Defendants previously filed a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). See Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint
(MTD; Doc. 30). In their MTD, they maintained that they were entitled to qualified
immunity. See MTD at 7-9. Additionally, they stated that Berger failed to state plausible
Eighth Amendment claims against them, see id. at 6-7, and Carlton was not liable on the
basis of respondeat superior, see id. at 9-10. Lastly, they stated that Berger was not
entitled to compensatory and punitive damages under 42 U.S.C. § 1997e(e) because he
had not alleged any physical injuries that were more than de minimis, resulting from
Defendants' acts and/or omissions. See id. at 10-13. The Court granted Defendants’ MTD
to the extent that Berger sought to impose liability on Carlton based on the theory of
respondeat superior, and therefore dismissed Berger’s claims against Carlton on the
basis of respondeat superior. See Order (Doc. 38) at 18, ¶ 1. Otherwise, the Court denied
Defendants’ MTD. See id.
Here, because Defendants failed to assert a failure-to-exhaust defense in their
MTD, they are precluded from raising that defense in their motion for summary judgment.
While Defendants have raised the defense in a motion for summary judgment under Rule
5
Federal Rule of Civil Procedure 12(g)(2) provides: “Limitation on Further
Motions. Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under
this rule must not make another motion under this rule raising a defense or objection that
was available to the party but omitted from its earlier motion.”
9
56, rather than another Rule 12 motion, the Court must treat the motion as one seeking
dismissal with regard to their assertion that Berger failed to exhaust his administrative
remedies. See Bryant, 530 F.3d at 1374-75. Unfortunately for Defendants, Rule 12(g)(2)
bars the untimely assertion of the exhaustion defense in this action. As such, Defendants
have forfeited the exhaustion defense and cannot raise it in their motion for summary
judgment. Defendants’ Motion as to their failure-to-exhaust assertion is therefore due to
be denied.
VI. Law
A. Excessive Use of Force
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 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
10
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). Notably, a lack of serious injury is relevant to the inquiry.
See Smith v. Sec’y, Dep’t of Corr., 524 F. App’x 511, 513 (11th Cir. 2013) (per curiam)
(quoting Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) (per curiam)). The United States
Supreme Court has explained:
“[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.” Ibid.[ 6 ]
(quoting Whitley,[7] supra, at 321, 106 S.Ct. 1078). The extent
of injury may also provide some indication of the amount of
force applied. . . . An inmate who complains of a “‘push or
shove’” that causes no discernible injury almost certainly fails
to state a valid excessive force claim. Id., at 9 (quoting
Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).[8]
Injury and force, however, are only imperfectly
correlated, and it is the latter that ultimately counts. An inmate
who is gratuitously beaten by guards does not lose his ability
6
Hudson, 503 U.S. at 7.
7
Whitley v. Albers, 475 U.S. 312 (1986).
8
See Johnson, 481 F.2d at 1033 (“Not every push or shove, even if it may later
seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional
rights.”).
11
to pursue an excessive force claim merely because he has
the good fortune to escape without serious injury.
Wilkins, 559 U.S. at 37-38.
B. Eighth Amendment Deliberate Indifference
The Eleventh Circuit has explained the requirements for an Eighth Amendment
violation with respect to prison conditions.
“The Constitution does not mandate comfortable
prisons, but neither does it permit inhumane ones ....” Farmer,
511 U.S. at 832, 114 S. Ct. at 1976 (internal quotation and
citation omitted).[ 9 ] Thus, in its prohibition of “cruel and
unusual punishments,” the Eighth Amendment requires that
prison officials provide humane conditions of confinement. Id.
However, as noted above, only those conditions which
objectively amount to an “extreme deprivation” violating
contemporary standards of decency are subject to Eighth
Amendment scrutiny. Hudson, 503 U.S. at 8-9, 112 S. Ct. at
1000. Furthermore, it is only a prison official’s subjective
deliberate indifference to the substantial risk of serious harm
caused by such conditions that gives rise to an Eighth
Amendment violation. Farmer, 511 U.S. at 828, 114 S. Ct. at
1974 (quotation and citation omitted); Wilson, 501 U.S. at 303,
111 S. Ct. at 2327.[10]
Thomas v. Bryant, 614 F.3d 1288, 1306-07 (11th Cir. 2010). The Eighth Amendment also
requires prison officials to “take reasonable measures to guarantee the safety of the
inmates.” Farmer, 511 U.S. 832 (quoting Hudson v. Palmer, 468 U.S. 517, 526-27
(1984)). However, not every injury that a prisoner suffers as a result of a prison condition
necessarily equates to a constitutional violation. See Goodman v. Kimbrough, 718 F.3d
9
10
Farmer v. Brennan, 511 U.S. 825 (1994).
Wilson v. Seiter, 501 U.S. 294 (1991).
12
1325, 1333 (11th Cir. 2013). Only injuries that occur as a result of a prison official’s
deliberate indifference rise to the level of an Eighth Amendment violation. See Farmer,
511 U.S. at 834.
Recently, the Eleventh Circuit addressed the requirement of deliberate indifference
to a substantial risk of harm as follows:
To establish a § 1983 claim for deliberate indifference, a
plaintiff must show “(1) a substantial risk of serious harm; (2)
the defendants’ deliberate indifference to that risk; and (3)
causation.”[11]
The first element of deliberate indifference — whether
there was a substantial risk of serious harm — is assessed
objectively and requires the plaintiff to show “conditions that
were extreme and posed an unreasonable risk of serious
injury to his future health or safety.”[12] The second element
— whether the defendant was deliberately indifferent to that
risk — has both a subjective and an objective component.
Subjectively, the “official must both be aware of facts from
which the inference could be drawn that a substantial risk of
serious harm exists, and ... also draw the inference.”[ 13 ]
Objectively, the official must have responded to the known risk
in an unreasonable manner, in that he or she “knew of ways
to reduce the harm” but knowingly or recklessly declined to
act.[14] Finally, the plaintiff must show a “necessary causal
11
Lane v. Philbin, 835 F.3d 1302, 1307 (11th Cir. 2016) (quoting Hale v.
Tallapoosa Cty., 50 F.3d 1579, 1582 (11th Cir. 1995)).
12
Lane, 835 F.3d at 1307.
13
Rodriguez v. Sec’y for Dep’t of Corr., 508 F.3d 611, 617 (11th Cir. 2007)
(quoting Farmer, 511 U.S. at 837).
14
Rodriguez, 508 F.3d at 620 (quoting Hale, 50 F.3d 1583).
13
link” between the officer’s failure to act reasonably and the
plaintiff’s injury.[15]
Marbury v. Warden, 936 F.3d 1227, 1233 (11th Cir. 2019) (per curiam) (emphasis added);
Johnson v. Bessemer, Ala., City of, 741 F. App’x 694, 698-99 (11th Cir. 2018) (per
curiam).
The Eleventh Circuit has instructed:
Proof of deliberate indifference requires a great deal more
than does proof of negligence: “To be deliberately indifferent
a prison official must know of and disregard ‘an excessive risk
to inmate health or safety; the 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.’” Purcell, 400 F.3d at 1319-20 (emphasis
supplied) (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114
S. Ct. 1970, 1979, 128 L.Ed.2d 811 (1994)).[16]
In other words, a plaintiff in [Berger]’s position must
show not only that there was a substantial risk of serious
harm, but also that [Defendants] “subjectively knew of the
substantial risk of serious harm and that [they] knowingly or
recklessly disregarded that risk.” Hale, 50 F.3d at 1583
(alteration omitted) (internal quotation marks omitted).
Whether prison officials had the requisite awareness of the
risk “is a question of fact subject to demonstration in the usual
ways, including inference from circumstantial evidence, and a
factfinder may conclude that a prison official knew of a
substantial risk from the very fact that the risk was obvious.”
Farmer, 511 U.S. at 842, 114 S. Ct. at 1981 (citation omitted).
At the same time, the deliberate indifference standard - and
the subjective awareness required by it - is far more onerous
than normal tort based standards of conduct sounding in
negligence: “Merely negligent failure to protect an inmate from
attack does not justify liability under [§] 1983.” Brown v.
Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990) (per curiam).
15
Rodriguez, 508 F.3d at 622-23.
16
Purcell ex rel. Estate of Morgan v. Toombs Cty., Ga., 400 F.3d 1313 (11th Cir.
2005).
14
And[,] needless to say, to defeat a motion for summary
judgment, [a 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.” Anderson, 477 U.S. at 252, 106 S. Ct. at
2512.
Goodman, 718 F.3d at 1332 (emphasis deleted); Melton v. Abston, 841 F.3d 1207, 1223
(11th Cir. 2016) (per curiam) (stating that a plaintiff who claims deliberate indifference
must prove: “(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk;
(3) by conduct that is more than mere negligence”); Scott v. Miami Dade Cty., 657 F.
App’x 877, 883 (11th Cir. 2016) (stating that “a plaintiff must allege facts that would allow
a jury to conclude that: the defendant actually knew that the plaintiff faced a substantial
risk of serious harm” (subjective component), and “the defendant disregarded that known
risk by failing to respond to it in an objectively reasonable manner” (objective
component)).
C. Qualified Immunity
The Eleventh Circuit has stated:
The qualified-immunity defense reflects an effort to
balance “the need to hold public officials accountable when
they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they
perform their duties reasonably.” Pearson v. Callahan, 555
U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The
doctrine resolves this balance by protecting government
officials engaged in discretionary functions and sued in their
individual capacities unless they violate “clearly established
federal statutory or constitutional rights of which a reasonable
person would have known.” Keating v. City of Miami, 598 F.3d
753, 762 (11th Cir. 2010) (quotation marks and brackets
omitted).
15
As a result, qualified immunity shields from liability “all
but the plainly incompetent or one who is knowingly violating
the federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th
Cir. 2002). But the doctrine’s protections do not extend to one
who “knew or reasonably should have known that the action
he took within his sphere of official responsibility would violate
the constitutional rights of the [plaintiff].” Harlow v. Fitzgerald,
457 U.S. 800, 815, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)
(internal quotation marks and alteration omitted).
To invoke qualified immunity, a public official must first
demonstrate that he was acting within the scope of his or her
discretionary authority. Maddox v. Stephens, 727 F.3d 1109,
1120 (11th Cir. 2013). As we have explained the term
“discretionary authority,” it “include[s] all actions of a
governmental official that (1) were undertaken pursuant to the
performance of his duties, and (2) were within the scope of his
authority.” Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir. 1994)
(internal quotation marks omitted). Here, it is clear that
Defendant Officers satisfied this requirement, as they
engaged in all of the challenged actions while on duty as
police officers conducting investigative and seizure functions.
Because Defendant Officers have established that they
were acting within the scope of their discretionary authority,
the burden shifts to [plaintiff] to demonstrate that qualified
immunity is inappropriate. See id. To do that, [plaintiff] must
show that, when viewed in the light most favorable to him, the
facts demonstrate that Defendant Officers violated [plaintiff’s]
constitutional right and that that right was “clearly established
... in light of the specific context of the case, not as a broad
general proposition[,]” at the time of Defendant officers’
actions. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151,
150 L.Ed.2d 272 (2001), overruled in part on other grounds by
Pearson, 555 U.S. 223, 129 S.Ct. 808. We may decide these
issues in either order, but, to survive a qualified immunity
defense, [the plaintiff] must satisfy both showings. Maddox,
727 F.3d at 1120-21 (citation omitted).
Jones v. Fransen, 857 F.3d 843, 850-51 (11th Cir. 2017). The Court has instructed:
Because § 1983 “requires proof of an affirmative causal
connection between the official’s acts or omissions and the
alleged constitutional deprivation,” Zatler v. Wainwright, 802
16
F.2d 397, 401 (11th Cir. 1986) (per curiam) (citation omitted),
each defendant is entitled to an independent qualified
immunity analysis as it relates to his or her actions and
omissions. So[,] we must be careful to evaluate a given
defendant’s qualified immunity claim, considering only the
actions and omissions in which that particular defendant
engaged.
Alcocer v. Mills, 906 F.3d 944, 951 (11th Cir. 2018).
VII. Analysis17
A. Eighth Amendment
Berger asserts that Defendants Carlton and Williams violated his Eighth
Amendment right when they directed the application of chemical agents and denied him
a timely decontamination shower on January 20, 2017. Defendants Carlton and Williams
assert that they are entitled to summary judgment as to Berger’s Eighth Amendment
claims against them. In support of their position, they submitted exhibits, see Docs. 61-1
through 61-11, including their own Declarations, see Declarations of Michael Carlton
(Carlton Decl.), Doc. 61-3 at 1-4; Michael Williams (Williams Decl.), Doc. 61-4 at 1-2, as
well as the Declarations of Dr. Kalem Santiago (Santiago Decl.), Doc. 61-5 at 1-3, Jennifer
Butler, Doc. 61-10 at 1-2, and Ashley Stokes, Doc. 61-11 at 1-2. With the Court’s
permission, see Order (Doc. 67), Defendants filed two digital video discs under seal, see
Defendants’ Exhibits to Be Filed Under Seal (Doc. S-68); Def. Exs. F1, F2 (handheld
video); G1, G2, G3 (fixed wing video). The video evidence captures what transpired on
17
For purposes of summary judgment, the Court views the evidence and all
reasonable inferences therefrom in the light most favorable to the plaintiff. Thus, the facts
described in the Court’s analysis may differ from those that ultimately can be proved.
17
January 20, 2017, at 8:24 a.m. until Berger’s decontamination shower and post-use-offorce medical examination that ended almost one hour later.
In a Declaration, Defendant Williams describes the circumstances leading up to
the January 20th incident involving Berger. He states in pertinent part:
My name is Michael Williams. I was employed by the
Florida Department of Corrections (FDC) from October 17,
2008 through September 13, 2018. On January 20, 2017, I
was assigned as P-Dormitory housing supervisor at Suwanee
Correctional Institution Annex.
At approximately 7:00-7:05 A.M., I approached cell
P2[]109 which housed both Plaintiff and inmate Latwain
McLaren at the time. I observed Plaintiff wa[]ving his arm,
kicking the cell door, and shouting obscenities toward
confinement staff. I ordered him to cease his disruptive
actions. Plaintiff refused and instead attempted [to] incite
additional inmates on the wing to kick on their cell doors and
break the sprinkler heads. I again ordered Plaintiff to cease
his disruptive behavior. Plaintiff continued shouting f[ro]m his
cell and kicking his cell door.
After counseling with Plaintiff at approximately 7:05
A.M., I reported the above behavior to Captain Michael
Carlton. I then had no further involvement with Plaintiff related
to this incident as I left the area.
It is my understanding from a review of the use of force
report log number 17-01438 that force in the form of chemical
agents were used on Plaintiff at 8:32 A.M. As described
below, I was no longer present at the time.
I was not a witness to the use of force against Plaintiff
and had no involvement in the aftermath including Plaintiff’s
decontamination shower. Had I been involved in or even
present during the use of force or in the aftermath, I would
have been listed on the Use of Force Report as a witness.
I did not approve or order that any force be used on
Plaintiff, and did not have the authority to approve or order
18
that any force be used on Plaintiff pursuant to Rule 33602.210, Florida Administrative Code.
At 8:30 A.M., I wrote Plaintiff a disciplinary report for a
violation of Rule 33-602.314(2-2), Florida Administrative
Code, which prohibits Inciting Riots. At 9:00 A.M., I wrote
Plaintiff a disciplinary report for a violation of Rule 33-602.314
(2[-]3), Florida Administrative Code, which prohibits
Participating in a Disturbance. After writing and submitting the
above disciplinary reports, I had no further involvement in their
processing. I have since learned that they were both rejected
due to technical errors. Nonetheless, the information
contained in both statements of fact is true and correct as
written.
Williams Decl. at 1-2 (enumeration omitted). Additionally, Defendant Carlton describes
his role during the events that transpired on the morning of January 20th, stating in
pertinent part:
1.
My name is Michael Carlton. I was employed by
the Florida Department of Corrections (FDC) from 1989
through August of 2018. On January 20, 2017, I was a Captain
at Suwannee Correctional Institution Annex assigned as BShift Officer in Charge.
2.
On the morning of January 20, 2017, I was
called to Quad 2 of P Dormitory at Suwannee C.I. Annex and
witnessed Plaintiff, inmate Jackie Berger, DC#M38196,
engaging in the disorderly actions of yelling obscenities
toward staff, kicking on his cell door in cell P2109, attempting
to incite other inmates to be disorderly, and refusing to submit
to hand restraints. Sergeant Williams and another officer
informed me that they had attempted to counsel with Plaintiff
to cease his disorderly behavior prior to notifying me.
Additionally, Ms. Karen Cooke, Mental Health Specialist,
attempted crisis intervention techniques to get Plaintiff to
cease his disorderly behavior with negative results.[18] I also
18
Crisis intervention techniques are “[m]ethods used to offer immediate, shortterm help to individuals who experience an event that produces emotional, mental,
physical, and behavioral distress or problems.” Fla. Adm. Code. R. 33-602.210 (1)(c),
“Use of Force.”
19
attempted crisis intervention techniques for that purpose, also
with negative results.
3.
As a result of Plaintiff’s refusal to comply with
orders to cease his disorderly behavior, I reviewed form DC650B, Risk Assessment for the Use of Chemical Agents, to
determine whether Plaintiff had any medical condition that
may be exaggerated by the use of chemical agents or would
preclude the use of chemical agents on Plaintiff and none
were noted. Registered Nurse S. Hancock was also consulted
to ensure that Plaintiff had no such medical condition and
confirmed that he did not.
4.
At approximately 7:43 A.M., Duty Warden
Assistant James Taylor was notified and approved the use of
chemical agents. Pursuant to Rule 33-602.210, Florida
Administrative Code, I lacked authority to approve the
organized use of chemical agents without said approval.
5.
At approximately 8:26 A.M., I gave Plaintiff a
final verbal order, which was recorded on video, to cease his
disorderly actions. In that final order, I instructed Plaintiff that
I was giving a final order and that further failure to comply with
orders to cease his disorderly behavior would result in the use
of chemical agents. Just prior to giving that order, I was
immediately to the left of Plaintiff’s cell giving a lead-in
statement on the hand-held video camera. As is common in
such a situation when an inmate can hear the lead-in
statement being made and can see that the hand-held camera
is being used, Plaintiff began to act in such a way as to appear
compliant for the video footage. At the time of the final order
he was sitting on his bunk and appeared to be reading a book.
[]Upon receiving that final verbal order, Plaintiff stood
and began to protest about allegations against other officers
regarding an unrelated incident he alleged had occurred prior
to that date. At that time, Plaintiff made no statement denying
that he had previously engaged in the above disorderly
behaviors that morning and made no statement alleging that
the disorderly behaviors were conducted by any other inmate.
At that time, I ordered Plaintiff to cease his behavior,
instructed him that we would address his allegations at a later
time, and ordered Plaintiff to sit on his bunk. He continued his
complaints in what, in my experience, appeared to be an
20
attempt to incite similar behavior from other inmates on the
wing. I again ordered Plaintiff to sit on his bunk at which point
he complied with my order, ceased his behavior, and sat on
his bunk. I then acknowledged to Plaintiff that he had complied
with my orders and instructed him that if at any time he
renewed his behavior that chemical agents would be used
without further warning.
6.
At approximately 8:30 A.M., after the handheld
video was ended and I began to leave the quad, I heard an
inmate yelling further obscene comments. I turned around
back into the quad at that time and was able to personally
observe inmate Berger continue his disorderly behavior by
continuing to yell on the wing. I approached Plaintiff’s cell at
which point he denied having done so. However, based on my
personal observation of Plaintiff continuing his previous
behavior, I ordered Sergeant Philip Mayo to retrieve a canister
of chemical agents in preparation for the use of chemical
agents to bring Plaintiff into compliance following his repeated
failure to comply with orders.
7.
Upon return to Plaintiff’s cell, Plaintiff attempted
to defeat the effects of chemical agents first by pulling a shirt
over his head, and then by using his state-issued mattress to
block the cell door. I radioed for the cell door to be opened,
and once it was opened, Sergeant Mayo and I pulled the
mattress toward the floor such that Sergeant Mayo could
administer chemical agents. Sergeant Mayo administered two
half-second bursts followed by two one-second bursts of
chemical agents directed at Plaintiff.[ 19 ] The use of force
ended at 8:33 A.M. I did not personally use any force on
Plaintiff.
8.
At approximately 8:43 A.M., I was called back to
quad 2 to address a separate incident involving disorderly
conduct by another inmate which resulted in a separate use
of force against that inmate.
9.
At 8:52:38, within the 20-minute timeframe,
myself and multiple other officers arrived at Plaintiff’s cell to
escort him for a decontamination shower. At that time, Plaintiff
informed us that he would need his cane in order to be
19
See Def. Ex., Doc. 61-1 at 1, Report of Force Used.
21
escorted to the shower. I informed him that his cane would not
be necessary as we would assist him during the escort,
however, he insisted the cane was necessary and an officer
was dispatched to retrieve it. In the meantime, both Plaintiff
and his cellmate were each placed in hand restraints through
the opening in the cell door in preparation for being escorted
for each of them to receive a decontamination shower. At 8:55
A.M., Plaintiff’s cellmate was removed from the cell and
escorted to a decontamination shower while we awaited the
arrival of Plaintiff’s cane. Shortly thereafter, I myself left the
quad to retrieve Plaintiff’s cane to prevent any further delay. I
returned to the quad with Plaintiff’s cane at 8:56:46 A.M. and
Plaintiff was successfully escorted to a decontamination
shower at that time.
10.
During Plaintiff’s decontamination shower, as a
result of the separate incident involving another inmate
mentioned in paragraph eight (8) above, Lieutenant Karen
Melia took over the supervision of the aftermath of Plaintiff’s
use of force from the decontamination shower through his
escort and examination in medical and ultimate placement in
a new cell.
11.
At 9:20 A.M., I wrote Plaintiff a disciplinary
report for a violation of Rule 33-602.314 (6-1), Florida
Administrative Code, which prohibits [d]isobeying a verbal or
written order – any order given to an inmate or inmates by a
staff member or other authorized person. After writing and
submitting the above disciplinary report, I had no further
involvement in its processing. The information contained in
the statement of fact of that disciplinary report is true and
correct as written.
12.
The use of chemical agents was used as a
means of last resort following Plaintiff’s repeated refusal to
comply. Due in part to the ventilation system in the dorm, the
use of chemical agents in a confinement dorm often spreads
such that multiple inmates and officers in the area feel the
effects of the chemical agents. Accordingly, it is not used
unless necessary to avoid inciting disorderly behavior in other
inmates in the dorm such as what occurred following the use
of force on Plaintiff. The force which was used on Plaintiff was
the minimal amount of force necessary to maintain care,
custody, and control over Plaintiff. I did not use force to abuse
22
or otherwise harm Plaintiff, and the force was only utilized
based on Plaintiff’s behavior within my presence.
Carlton Decl. at 1-4.
To defeat the Motion, Berger is required to present evidence to show that there is
a genuine issue for trial. In opposing Defendants’ Motion, Berger asserts that genuine
issues of material fact remain, thus precluding the entry of summary judgment in
Defendants’ favor. See Response at 1-2, 4-5. He submitted the following exhibits in
support of his position: (1) Sworn Declaration under Penalty of Perjury Pursuant to 28
U.S.C. § 1746 and Fla. Stat. § 92.525 (Berger Decl.), Doc. 70-1 at 1-6; (2) Sworn
Declaration of Latwain McLaren (McLaren Decl.), Doc. 70-1 at 7-9; (3) Sworn Affidavit of
Allen Willich, Doc. 70-1 at 10; (4) Sworn Affidavit of Carlton Holliman (Holliman Aff.), Doc.
70-1 at 11; (5) Disciplinary Report for violation of Rule 33-601.314, infraction 2-3, Log No.
231-170165, Doc. 70-1 at 12; (6) Disciplinary Report for violation of Rule 33-601.314,
infraction 2-2, Log No. 231-170170, Doc. 70-1 at 13; (7) Inmate Sick Call Requests, dated
January 24, 2017, February 2, 2017, March 12, 2017, July 11, 2018, September 18, 2018,
September 20, 2018, and November 3, 2018, Doc. 70-2 at 1-7; (8) medical records, Doc.
70-2 at 8-29; (9) Rule 33-602.210, Use of Force, Doc. 70-3 at 1-10; (10) Rule 33-208.002,
Rules of Conduct, Doc. 70-3 at 11-16; and (11) Grievances, Doc. 70-4 at 1-6.
In his Declaration, Berger states in pertinent part:
I now give the following statement as recollection of the events
[that] had been refreshed after having had the opportunity to
review and inspect for the first time surveillance video
recordings and/or documents resulting from the institution[’s]
23
(Suwannee C.I.) investigation of the incident (use of force) by
the defendants.
On Jan. 20, 2017 at approx. 7:00 a.m.[-] 7:05 a.m. while
housed at Suwannee C.I. Annex P-dormitory (P2109)
confinement. Plaintiff who at all relevant times was an
impaired/disabled prisoner suffering from lower legs and feet
deformities who uses [an] authorized medical device (cane)
for mobility purposes daily. See Ex. B-(11)(12)(13)(14)(15)[.]
Sgt. Williams allegedly observed Plaintiff causing and creating
[a] disturbance i.e. shouting obscenities[,] kicking the cell
door[,] inciting riots[,] and encouraging other inmates to break
the sprinkler heads which was captured on Unit #2
surveillance video/audio recording systems.
Sgt. Williams stated in general to the entire unit due to the
loud commotion of several inmates yelling/kicking “if I have to
come back out here somebody anybody gone [sic] get
gassed.”
At approx. 7:30 a.m.[,] Sgt. Williams returned to Unit #2
because of the constant yelling/kicking. Sgt. Williams stood at
the base of the stairs looking in the direction of my cell
(P2109). Sgt. Williams stated very low manipulating the audio
not to pick up the comments at my cell door, “why the f[-]ck
you kicking my door causing disturbance.”
Although confronted with direct knowledge of the source of
the noise base[d] on Inmate Allen Willich #J39576 (P2108)
stating “Serg that was me yelling/kicking cause I got medical
emergency – chest pains.” See Willich (Affidavit) Ex. A-(3). At
that point[,] Sgt. Williams demonstrated specific desire to
target my cell (P2109) while stating very low “Willich shut the
hell up and get off my door[,] lay down[,] you don[’]t have
nothing to do with this.” In unison[,] my cellmate Latwain
McLaren #U26804 and myself stated “Serg that’s not us
causing the disturbance.” See McLaren (Affidavit) Ex. A-(2).
Plaintiff reiterates that at no time between (7:00 a.m.[-] 7:05
a.m.) as Sgt. Williams alleged in disciplinary reports (#231170165 part. in disturbance […] #231-170170 inciting riots)
was Plaintiff’s cell door (P2109) being kicked nor Plaintiff’s
voice distinctly heard shouting obscenities toward staff which
would’ve been seen on Unit #2 fixed wing cameras and
24
detected by Unit #2 audio device among the many inmates
shouting/kicking. See Ex. 4- (5)(6)(1).
As a seasoned Dept. of Corrections employee Sgt. Williams
knew how to manipulate the incapabilities of Unit #2 fixed wing
cameras to accurately record the activity inside cell (P2109)
and the whispers to go undetected by Unit #2 audio.
Furthermore[,] Sgt. Williams[’] acts of maliciousness imposed
Plaintiff to conditions that denied the minimal measures of
life’s necessities when Sgt. Williams knew Plaintiff’s
impairment prevented committing the disruptive behavior. Yet
made the conscious decision to coerce and falsify records and
reports which violate Dept. of Corrections rules, policies and
directives governing Sgt. Williams[’] actions in accordance
with Ch. 33.208.002 (6)(12)(19)[,] F.A.C.[,] Ch. 33.208.005
(20)(23)(24)(28)(39)[,] F.A.C.[,] and Ch. 33-208.002 (8)[,]
F.A.C.[,] which was dismissed at the institutional level. See
Informal Grievance #231-1702-0078 Ex. A-(1) and Ex. C(2)(3).
At approx. 8:26 a.m.[,] Cpt. Carlton arrived to P-dormitory and
spoke with Sgt. Williams in the front hallway of Unit #2.
Thereafter[,] entered the unit and was immediately assaulted
with loud shouting and kicking by several inmates. Cpt.
Carlton arrived to Plaintiff’s cell (P2109) with the coerced story
given to him by Sgt. Williams when he stated “why ya[’]ll
kicking my door and threatening my officers.” Before
(McLaren) approached the door[,] he stated to me “Bruh let
me do the talking cause they (Sgt. Williams/Capt. Carlton)
allegedly got it out for you so whatever you say really don[’]
matter sh[-]t.” See McLaren (Affidavit) Ex. A-(2). At which time
we both vehemently denied causing the disturbance i.e.
shouting/kicking.
Cpt. Carlton approached inmate Allen Willich[’s] cell (P2108)
and Carlton Holliman[’s] cell (P2104) who we[re] shouting.
Inmate Willich stated “Carlton[,] Carlton that was me yelling
and kicking because Sgt. Williams repeatedly denied my
mental health/medical emergency.” See Willich (witness
statement DC6-112C form) and (Affidavit) Ex. A-(3).
Cpt. Carlton approached cell (P2104) which houses inmate
Carlton Holliman. Upon arrival[,] immediately got into a heated
shouting match to which Cpt. Carlton stated[,] “Holliman you
25
can get what (Berger) about to get if you continue yelling and
kicking my door.”
On Jan. 20, 201[7] Cpt. Carlton authorized (use of force) on
inmate Holliman for throwing feces, yelling and kicking the
door[,] by using chemical agents then cell extraction. See
Holliman (Affidavit) Ex. A-(4)[.]
Cpt. Carlton returned to [Berger’s] cell (P2109) whispering to
avoid audio detection “it doesn’t matter whether Willich admit
to sh[-]t. My officer (Sgt. Williams) said you (Plaintiff) the ones
[sic] he saw shouting obscenities toward staff[,] kicking the cell
door[,] and inciting disturbance on the unit[,] so you and
Holliman [are] the ones I[’]m going to gas period.”
[A]t that very moment[,] myself and McLaren (cellmate)
offered to submit to hand restraints (handcuffs) to show
compliance with all orders. However[,] Cpt. Carlton refused to
allow our voluntary submission to (handcuffs) by viciously
whispering at the cell door[,] “ain[‘]t no cuff’en up. Ya[’]ll better
cover up, it’s about to get real hot.” In violation of Ch. 33602.210 Policy. See Ex. C-(1).
Capt. Calton[’s] refusal to allow (uninvolved) inmate
(McLaren) to exi[]t the cell[,] which would’ve necessitated
Plaintiff’s submitting to handcuffs also and prevented the need
for force violated Ch. 33-602.210 (use of force) policy. See
Ex. C-(1).
After having the opportunity to review and/or inspect
documents and video footage[,] Plaintiff is able to accurately
identify the two unknown officers as being (Ofc. Richard Mott
and Sgt. Philip Mayo).
Several minutes elapsed before Cpt. Carlton returned with
Ofc. Mott [(camera operator)] and Sgt. Mayo [(chemical agent
administrator)]. Cpt. Carlton activated the (handheld) camera
issuing “final” verbal orders to cease disorderly behavior[] to
which Plaintiff again stated on camera of not being the inmate
causing or creating disturbance. Plaintiff replied “yes sir” to
the order given by Cpt. Carlton to have a seat on the bunk.
Plaintiff backed away from the door and returned to [his]
assigned bunk. Cpt. Carlton deactivated the (handheld)
camera proceeding to walk off Unit #2. Before he (Cpt.
26
Carlton) made it to the front exit[,] an inmate yelled “suck my
d[-]ck cojonas.” Cpt. Carlton immediately returned to my cell
(P2109) stating while smiling “get the gas.” Plaintiff again
stated[,] “that was [not] me yelling.”
Cpt. Carlton ordered cell (2109) open while simultaneously
reaching into the cell wrestling the mattress away from Plaintiff
that was used as a shield. The first three burst[s] hit Plaintiff
directly in the face, eye[]s and mouth. The fourth burst flew
over Plaintiff’s head landing on the back of the cell. Plaintiff
was instantly deprived of [his] ability to breath[e] for several
painful minutes, rendered incapacitated, blind and entire body
set aflame with burning sensation and excruciating pain.
McLaren (cellmate) abandon[ed] the semi safety of his
blanket to render aid by throwing water onto Plaintiff’s face,
eye[]s, down my throat and over Plaintiff’s entire torso to
attempt to bring about immediate relief[,] to no avail.
Upon information and belief[,] on 2-1-17 Warden Walker
Clemmons of Suwannee Correctional Institution conducted
review/investigation of all (use of force) incidents including the
incident Sgt. Mayo participated in on Jan. 20, 2017. The
following was noted. Sgt. Philip Mayo administered (4) one
second burst[s] during application of chemical agents. Sgt.
Mayo will be retrained in the use of chemical agents. Sgt.
Mayo will also be required to read Ch. 33-602.210 (use of
force) policy and sign acknowledgement. Only (3) one second
burst[s] are allowed per (use of force) policy. See Ex. C-(1).
Cpt. Carlton[’]s intentional disregard of relevant, reliable and
competent information available to him with inmates[’]
(Willich/Holliman) voluntary admi[ss]ion[s] to being the
inmates (shouting/kicking) and Plaintiff’s physical impairment
prevented the ability to kick the cell door. From these
undisputed facts, an officer in [a] similar situation would have
known that there was no need for the degree of force applied.
Yet[,] Plaintiff was [a] target of cruel and unusual punishment
after the final unlawful application of chemical agents was
utilized on Plaintiff and McLaren (cellmate) due to the coerced
allegations of Sgt. Williams[.] [T]he cell door was closed and
secured. There[,] Plaintiff remained handcuffed, saturated
with pepper spray, deprived clear air, lungs burning,
incapacitated blind and in extreme physical pain for well over
the allotted time frame per Ch. 33-602.210 (use of force) to
27
be given [a] timely decontamination shower. Cpt. Carlton
knowingly and willingly disregarded policy, rules and
directives creating excessive risk to Plaintiff’s health and
safety when denied [a] timely decontamination shower was
committed purposefully with the malicious and sadistic
intentions to cause harm, pain and suffering which served no
legitimate penological purpose other than the unnecessary
and wanton infliction of pain.
Upon information and belief[,] on 2-1-17[,] Warden Walker
Clemmons of Suwannee Correctional Institution conducted
review/investigation of all use of force incident[s] including the
incident involving Cpt. Carlton on 1-20-17. See Ex. C-(1). The
following was noted. Cpt. Carlton failed to follow Chapter 33602.210[,] which states all inmates exposed to chemical
agents shall be ordered to shower in cool water and change
inner and outer garments within 20 minutes from [the] last
application of chemical agents unless there is a documentable
emergency resulting in an extension of the time frame or
unless the inmate refuses to participate in the
decontamination process. Inmate Berger was placed in the
decontamination shower 27 minutes after the final
application[,] which is 7 minutes over the allotted 20 minutes
time frame. See Ex. C-(1)[.] Cpt. Carlton will be remin[d]ed of
the importance of following the (use of force) policy and that
he should remain attentive at all times during a use of force
incident.
As a result of the coerced allegations of causing and/or
creating [a] disturbance i.e. (shouting[,] kicking[,] and inciting
riots) by Sgt. Williams and Cpt. Carlton coupled with being
intentionally denied [a] timely decontamination shower has
contributed in Plaintiff sustaining long term irreparable harm,
pain and suffering for which Plaintiff continues to receive
medical treatment.
(a) uncontrol[l]able wheezing and shortness of breath that has
worsen[ed] developing into (mild intermittent asthma) for
which is currently being treated with bronchodilator therapy
i.e. (Xop[e]nex and Alvesco) inhalers[.] See Ex. B-(1)-(30)
(physician’s orders/provider progress notes/medication
administration records/order record[s] history/sick call
requests).
28
(b) blurred deteriorating vision that has worsen[ed] for which
Plaintiff currently [is] being treated by signing consultation
form on 9-26-18 and have repeatedly requested treatment
after the incident. See Ex. B-(1)-(30) (sick call
requests/problem list/staff referral/consultation form).
(c) submitted several sick call [forms] repeatedly requesting
treatment due to the burning, peeling, shedding and rashes
on the skin caused by the intentionally [sic] denial of [a] timely
decontamination shower. See Ex. B-(1)(30)[.]
Berger Decl. at 1-6.
According to Berger, inmates Willich, Holliman, and McLaren’s accounts support
his claim that Defendants made false accusations against him, and therefore, their actions
relating to the use of chemical agents were neither reasonable nor justified. Inmates
Willich and Holliman, who were housed in cells in close proximity to Berger, aver that
Berger neither shouted obscenities nor kicked his cell door. See Willich Decl; Holliman
Decl. In a Declaration, Inmate McLaren (Berger’s cellmate) describes what transpired that
morning:
I was housed in cell P-2109 (confinement) at Suwannee C.I.Annex with Jackie Berger #M38196. When at some point
during the early morning of January 20, 2017[,] Srgt. Williams
kicked our door accusing inmate Berger of yelling and kicking
the door. If I had to guess[,] it was around 7:20-7:30 A.M.
because it was count when he walked in the unit. Me and
Berger was [sic] on our assigned bunks talking about females
and told Srgt. Williams that was not us causing the
disturbance. Srgt. Williams came back on the unit because
yelling and kicking was still going on. Inmate Willich who was
housed in cell P-2108 told Srgt. Williams that he was the one
kicking because he declared a Medical Emergency over 30
minutes ago. Srgt. Williams told Inmate Willich to lay down[,]
he ain[’]t got nothing to do with this. He then put a DC6-229B
form on our door, falsely accusing Berger of causing a
disturbance. When Capt. Carlton came on the unit[,] yelling
and kicking was still going on because Inmate Willich called
29
out to Capt. Carlton and said[,] “I[’]ll kick this bitch down until
I get my Mental Health Emergency.” Capt. Carlton told Inmate
Willich “he better lay the f-ck down before he gets gassed too.”
When he got to our cell[,] I told Inmate Berger “let me do the
talking cause they already got it out for you so whatever you
say don’t mean nothing.” Capt Carlton then asked us[,] “why
we kicking his door and threatening his officers?” I inmate
McLaren attempted to tell Capt. Carlton that was not us but
was interrupted due to the continuous banging and yelling.
Capt. Carlton said he’ll be back. He then left to go talk to
Inmate Holliman for awhile then came back to our cell. I told
Capt. Carlton how could it be possible for us to kick the door
when inmate Berger is an impaired inmate. Capt. Carlton then
said “My officer said ya[’]ll was [sic] the ones yelling and
kicking so ya[’]ll getting gassed.” [E]nd of discussion. I asked
Capt. Carlton to cuff us up because we ain[’]t got nothing to
do with it. He then replied[,] “ain[’]t no cuffin up[,] ya[’]ll better
cover up because it[’]s about to get real hot” then walked off.
He came back 10-15 minutes later with a camera and gas. I
hid under my blanket to avoid the chemicals because I got bad
allergies. After maybe like 10 minutes[,] I heard inmate Berger
say he couldn’t breath[e] so I tried to throw some water in his
face but the water was turned off in the cell sink so I put my
towel in the toilet bowl and used that water to try an[d] wipe
his face. Then[,] Capt. Carlton came back after another 20-30
minutes[,] cuffed me up and pulled me out [of] the cell and
closed the door leaving Berger cuffed up in the cell still
suffocating from the chemicals. Srgt. Williams and Capt.
Carlton lied about the entire incident in violation of Chpt. 33208.002(6)(12)(19) and Chpt. 33-208.003(28) when they
coerced the story of inmate Berger yelling obscenities, kicking
the cell door, an[d] inciting a riot. I was in the cell[.] I know
what happened. This was cruel and unusual punishment and
excessive use of force, leaving Berger in the cell handcuffed
for over 20 minutes with chemical agents on him [i]n violation
of 33-602.210.
McLaren Decl. at 7-8.
The Court first addresses Defendant Williams’ involvement, or lack thereof, in the
incidents that transpired on the morning of January 20, 2017. Williams asserts that he is
entitled to summary judgment as to Berger’s Eighth Amendment claims against him
30
because he was neither involved with the use of chemical agents nor the denial of a timely
decontamination shower. See Motion at 15, 17-18, 24. The record reflects the following
events relating to Williams and Berger that morning. Williams counseled Berger about his
behavior at approximately 7:05 a.m., reported to Captain Carlton (a higher-ranking officer)
that Berger was disorderly, and wrote two disciplinary reports that were “rejected for rewrite[s] due to technical errors.” P. Exs., Docs. 70-1 at 12-13, 70-4 at 1; Berger Decl. at
1-2; Williams Decl. The “re-write[s]” were not completed within the required timeframe,
and therefore, the disciplinary reports were never re-issued. P. Ex., Doc. 70-4 at 1.
Williams was neither a witness to the use of force nor a participant in the application of
chemical agents or the delay of Berger’s decontamination shower. See Williams Decl. at
1; Berger Decl.; Def. Ex., Doc. 61-1. He had left the dormitory, and had no further
involvement with Berger.20
Additionally, Williams neither approved nor directed that force be used against
Berger. See Williams Decl. at 2. As a dormitory housing supervisor, Williams was not
authorized to approve or direct the use of force against an inmate. See id. Carlton explains
Williams’ role, stating in pertinent part:
Sergeant Williams was not a witness to the use of force
against Plaintiff and had no involvement in the use of force or
the aftermath including Plaintiff’s decontamination shower.
Had he been involved in or even present during the use of
force or in the aftermath, he would have been listed on the
20
Sergeant Philip Mayo, Officer Richard Mott (the camera operator), Sergeant
James Arkinson, Officer James Allen, Sergeant Philip Speer, Sergeant Norman Norris,
Officer Anthony Callahan, and Lieutenant Karen Melia documented their involvement in
Incident Reports. See Def. Ex., Doc. 61-1 at 6-21.
31
Use of Force Report as a witness.[21] The use of force via the
use of chemical agents on Plaintiff was not done as a result
of Sergeant Williams’ report of Plaintiff’s disorderly conduct. If
Plaintiff had ceased his disorderly conduct after my final order,
regardless of any past behavior that morning, the use of force
would not have occurred.
Carlton Decl. at 4, ¶ 13. The video evidence supports Defendants’ account that Williams
was neither a participant nor a witness to the events at issue, and that Carlton, on his
own based on what he saw and heard, decided to direct the application of chemical
agents on Berger. See Def. Exs. F2; G1. As such, Defendants’ Motion is due to be granted
as to Berger’s Eighth Amendment claims (the use of chemical agents and denial of a
timely decontamination shower) against Defendant Williams.
Next, the Court turns to Defendant Carlton’s involvement in the application of
chemical agents and denial of a timely decontamination shower. Carlton asserts that he
is entitled to summary judgment as to Berger’s Eighth Amendment claims against him
because he did not use any force against Berger, approved a minimum amount of force
necessary to bring Berger into compliance with lawful orders, and directed the use of
chemical agents as a last resort when he saw Berger resume his disorderly behavior after
the final warning had been given. See Motion at 18. Berger maintains that the video
evidence “firmly” supports his version of the facts, Response at 1, and that there remain
genuine issues of material fact that preclude summary judgment in Carlton’s favor, see
id. at 4-5.
21
See Def. Ex., Doc. 61-1 at 1-3.
32
Four days after the January 20th incident, Berger provided a statement as part of
the use-of-force investigation. See Def. Ex., Doc. 61-1 at 22, Witness Statement, dated
January 24, 2017. In his Statement, Berger recounts the incident, stating in pertinent part:
On Friday, 1/20/17 I informed Capt[a]in Carlton of the
continuous denial of what we, the inmate[s], should be entitled
to according to Ch. 33 and ADA provisions for inmates
because I am impaired and have be[en] den[ied] my cane
without just reasons. Capt[a]in Carlton accused me of
being loud and disorderly on the wing because
somebody told him to leave me alone. He came back to
my cell to confront me. I told him I wasn’t the one who
said that. He still gassed me. Capt[a]in Carlton never gave
me a verbal order on camera to cease my disorderly conduct
before the administration of chemical agents. I am under
extreme duress due to continuous physical assaults by
Officer[s] Grantham and Perez, verbal abuse by Officer
Carlton[,] and 1st, 8th and 14th amendments by Suwannee
C.I. Annex administration. The Warden of this particular
institution encourages the type of behavior exhibited which
violate[s] 33-208.002[,] rules of conduct. . . .
Berger Statement (emphasis added).
The video evidence is reliable, and provides a chronology of how the incidents
unfolded. The handheld video footage shows Carlton at 8:25 a.m., 22 reading from a
clipboard, announcing that Berger had created a disturbance, and distractingly
commenting, “find out who that is, and we will gas him too.” See Def. Ex. F1. Carlton
stated that he had issued a final verbal order to Berger, had used crisis intervention
techniques with negative results, had reviewed the DC4-650B risk assessment for use of
chemical agents form, had the Duty Warden’s approval for the use of chemical agents,
22
Upon Carlton’s request, camera operator Richard Mott announced the time. See
Def. Exs. F1; Doc. 61-1 at 8.
33
and had exhausted other measures. See id. Carlton explained that it was his intent to
resolve the disruption by counseling Berger and using chemical agents only as a last
resort. See id.
When Carlton approached Berger’s cell front to give the final order, Berger was
reading a book while sitting on his bunk. See id. Upon hearing Carlton at cell front, Berger
put down the book and approached the cell door to voice his complaints relating to
assaults and his medical needs. See id. Carlton directed Berger to sit on his bunk and be
quiet and Berger complied. See id. Next, Carlton acknowledged that Berger had complied
with his verbal commands. See id. However, he advised Berger that the final order to
cease disruptive behavior had been given, and that if Berger resumed his disruptive
behavior, the cameraman would reactivate the handheld camera, and chemical agents
would be used without any additional warnings. See id. At 8:27 a.m., Carlton announced,
“this concludes the incident,” and proceeded to leave the dormitory quad. See id.
According to Carlton, Berger resumed his disruptive behavior when the
cameraman turned off the handheld camera. In his Declaration, Carlton describes what
transpired.
At approximately 8:30 A.M., after the handheld video was
ended and I began to leave the quad, I heard an inmate yelling
further obscene comments. I turned around back into the
quad at that time and was able to personally observe
inmate Berger continue his disorderly behavior by
continuing to yell on the wing. I approached Plaintiff’s cell
at which point he denied having done so. However, based
on my personal observation of Plaintiff continuing his previous
behavior, I ordered Sergeant Philip Mayo to retrieve a canister
of chemical agents in preparation for the use of chemical
agents to bring Plaintiff into compliance following his repeated
failure to comply with orders.
34
Carlton Decl. at 2, ¶ 6 (emphasis added). The fixed wing video footage displays Carlton
exiting through the quad’s glass doors, and the audio captures inmates’ voices with
obscene shouting. See Def. Ex. G1. Carlton stopped, paused, turned around, and headed
directly to Berger’s cell where he exchanged words with Berger. See id. The fixed wing
audio captures Carlton stating to Berger: “say it again.” Id.; see also Def. Ex., Doc. 61-1,
McLaren Witness Statement, dated January 24, 2017. According to Berger, he told
Carlton that he was not the one who had yelled. See Berger Decl. at 2.
At approximately 8:30 a.m., the handheld video footage shows Carlton with a
clipboard, stating that he had advised Berger that he had been given a final order, Berger
had complied, but had resumed his disruptive behavior. See Def. Ex. F2. Next, Carlton
directed Sergeant Mayo to retrieve a canister of chemical agents “to bring [Berger] into
compliance following his repeated failure to comply with orders.” Carlton Decl. at 1, ¶ 6;
Def. Ex. G1. Upon notification that chemical agents would be used, Berger attempted to
defeat the effects of the chemical agents by pulling his shirt over his head and using his
mattress to block the cell door. See Berger Decl. at 4; Carlton Decl. at 2; Def. Ex. F2.
McLaren avers that he followed Carlton’s advice to “cover up,” and therefore, reclined on
his bunk with his blanket over his face and body. See McLaren Decl. at 8; Def. Ex., Doc.
61-1 at 23, McLaren Statement, dated January 24, 2017.
At 8:32 a.m., Sergeant Mayo sprayed chemical agents into the cell. See Def. Ex.,
Doc. 61-1 at 1, Report of Force Used; Berger Decl. at 3; Def. Ex. F2. Carlton neither
applied chemical agents upon Berger nor used any other force against Berger that
morning. See Def. Ex. F2. After the application of chemical agents, Berger washed his
35
face in the sink, as other inmates in the dormitory shouted obscenities. See id. McLaren
drenched his own undershirt with water from the sink to help Berger wipe off the chemicals
from his head and face.23 See id. As Berger awaited a decontamination shower and postuse-of-force medical examination, commotion continued throughout the dormitory,
including a separate incident involving disorderly conduct by another inmate which
resulted in a use of force against that inmate. See Carlton Decl.; Holliman Decl.; Def. Ex.
F2. Berger reported shortness of breath and lightheadedness to the cameraman and
asked to go to the medical clinic. See Def. Ex. F2.
The video evidence refutes Berger’s assertions that Carlton directed Mayo to aim
for Berger’s face, eyes, and mouth,24 and that Carlton “wrestled” Berger to submission.25
See Def. Ex. F2.26 Carlton twice announced the progression of events in front of the
handheld camera, and gave Berger a final warning. See id. When Carlton directed Mayo
to use chemical agents upon Berger, they were both faced with Berger holding his
mattress in front of the cell door, while McLaren reclined on his bunk and covered himself
with his blanket. See id. Carlton moved the mattress, so Mayo could spray the chemical
23
McLaren states that the water in the sink was turned off, see McLaren Decl. at
8, however, Berger and Defendants agree that the video evidence is reliable.
24
See SAC at 12.
25
See SAC at 12.
26
See Shaw v. City of Selma, 884 F.3d 1093, 1098 (11th Cir. 2018) (“But in cases
where a video in evidence ‘obviously contradicts the nonmovant’s version of the facts, we
accept the video’s depiction instead of the nonmovant’s account,’ and ‘view the facts in
the light depicted by the videotape.’” (alterations adopted) (citation omitted)).
36
agents. See id. By that time, Berger had stepped towards his bunk and away from the
cell door. See id.
Given the evidence submitted by Defendant Carlton, the Court finds that Carlton
has met his initial burden of showing, by reference to his Declaration and the video
evidence, that he directed the application of chemical agents against Berger based on his
“personal observations” that Berger had resumed his disorderly conduct even after he
had been given a final verbal warning. Motion at 24. Thus, Berger is required to present
evidence to show that there is a genuine issue for trial. In doing so, he has provided
McLaren’s Declaration as well as Holliman and Willich’s Affidavits to show that Carlton
targeted Berger and unjustly directed the application of chemical agents. While the video
and audio footage provides a detailed chronology, it fails to capture which inmate yelled
obscenities at Carlton. Given the differences in Berger’s and Carlton’s sworn
recollections, there remain genuine issues of material fact as to whether Carlton
appropriately directed the use of chemical agents or maliciously targeted Berger with an
enforcement tactic (the application of chemical agents) that was excessive. As such,
Defendants' Motion as to Berger’s Eighth Amendment claim (relating to Carlton’s directive
for the application of chemical agents) against him is due to be denied.
Next, Berger asserts that Defendant Carlton denied him a timely decontamination
shower. Carlton contends that Berger’s decontamination shower was delayed because
there was another disturbance on the wing which required additional security measures,
and Berger insisted that he needed his cane for the escort to the shower. See Motion at
21. The video evidence refutes Berger’s assertion in the SAC that Carlton left him in his
37
cell for ninety-five minutes prior to being given a decontamination shower.27 See Def.
Exs. F2; G1; G2. Berger has since retreated from that initial calculation. See Berger Decl.
at 5 (stating that he “was placed in the decontamination shower 27 minutes after the final
application[,] which is 7 minutes over the allotted 20 minute[] time frame.”).
The video evidence captures the delay, see Def. Exs. F2; G1; G2, and Carlton
acknowledges it. See Carlton Decl. at 3, ¶ 9. In an Incident Report, Carlton explained that
Berger’s “decontamination shower exceeded the 20 minute time frame by 7 minutes due
[to] an additional disturbance on quad 2 and retrieving inmate Berger’s cane.” Def. Ex.,
Doc. 61-1 at 6, Incident Report, dated January 20, 2017. Additionally, the video evidence
captures the events that delayed Berger’s decontamination shower. At 8:52 a.m., Carlton,
accompanied by other officers, appeared at Berger’s cell and ordered both inmates to
submit to handcuffing for escort to decontamination showers. See Def. Ex. F2. The
handheld video footage shows that Berger asked for his cane to help him walk to the
decontamination shower. See id. Carlton informed Berger that he did not need his cane
because the escort officers would assist him. See id. Nevertheless, Berger insisted that
he needed his cane. See id.; Carlton Decl. Therefore, Carlton dispatched an officer to
retrieve Berger’s cane. See id. In the meantime, officers placed Berger and McLaren in
hand restraints through the cell door’s flap, removed McLaren from the cell, and escorted
McLaren to a decontamination shower at 8:55 a.m. See id. The officers waited for the
arrival of Berger’s cane. See id. Berger sat on the cell floor, and repeatedly asked for his
cane. See Def. Ex. F2. Carlton “left the quad to retrieve [Berger]’s cane to prevent any
27
See SAC at 12.
38
further delay.” Carlton Decl. at 3, ¶ 9; see Def. Ex. G1. At approximately 8:56 a.m., Carlton
returned to the dormitory quad with Berger’s cane, see id., and the officers escorted
Berger to a handicapped decontamination shower, see Def. Ex. F2. Berger started his
decontamination shower at 8:59 a.m., and showered for seven minutes. See Def. Exs.
F2; G2.
Given the evidence submitted by Defendant Carlton, the Court finds that he has
met his initial burden of showing, by reference to his Declaration, the Incident Report, and
video evidence, that Berger’s decontamination shower was delayed for seven minutes
due to another inmate incident that required security considerations as well as Berger’s
insistence that he needed his cane for the escort. Thus, Berger is required to present
evidence to show that there is a genuine issue for trial. See Brennan v. Headley, 807 F.
App’x 927, 934 (11th Cir. 2020) (per curiam) (“But to survive a summary judgment motion,
[Berger] must point to the presence of disputed, material facts.”) (citing Clark v. Coats &
Clark, Inc., 929 F.2d 604, 607-08 (11th Cir. 1991)). This, Berger has not done. The parties
agree that the video evidence captures the delay and the circumstances associated with
the delay. Thus, if this case were to proceed to trial, Berger would have only his testimony
to support his claims, and his testimony does not refute Defendant Carlton’s evidence
that the delay was reasonable, and that Carlton ultimately retrieved Berger’s cane to
minimize the delay. Nor has Berger provided specific facts or evidence suggesting there
was a substantial risk of serious harm, and that Carlton knew of the substantial risk of
serious harm and knowingly or recklessly disregarded that risk. See Scott, 657 F. App’x
at 883. There remain no genuine issues of material fact as to Berger’s Eighth Amendment
39
claim that Carlton denied him a timely decontamination shower. As such, Defendants’
Motion is due to be granted as to Berger’s Eighth Amendment claim (relating to the denial
of a timely decontamination shower) against Defendant Carlton.
B. Qualified Immunity
Defendants Carlton and Williams assert that they are entitled to qualified immunity
because they did not commit any federal statutory or constitutional violation. See Motion
at 22-26. Under the doctrine of qualified immunity, Defendants may claim they are entitled
to qualified immunity from monetary damages in their individual capacities. It is
undisputed that Defendants were engaged in discretionary functions during the events at
issue. To defeat qualified immunity with respect to these Defendants, Berger must show
both that Defendants committed a constitutional violation, and that the constitutional right
violated was clearly established. As the Eleventh Circuit has instructed, the Court must
“parse” the actions each Defendant undertook, and “address the evidence as it pertains
solely to him.” Alcocer, 906 F.3d at 952.
Upon review, Defendant Williams is entitled to qualified immunity from monetary
damages in his individual capacity as to Berger’s Eighth Amendment claims against him.
Additionally, Defendant Carlton is entitled to qualified immunity from monetary damages
in his individual capacity as to Berger’s Eighth Amendment claim (relating to the denial of
a timely decontamination shower) against him. However, Defendant Carlton is not entitled
to qualified immunity as to Berger’s Eighth Amendment claim relating to Carlton’s
40
directive that force be used. As such, Defendants’ Motion as to their assertion of qualified
immunity is due to be granted in part and denied in part.
C. Physical Injury Requirement
42 U.S.C. § 1997e(e)
Next, the Court turns to Defendant Carlton’s assertion that Berger is not entitled to
compensatory and punitive damages under 42 U.S.C. § 1997e(e) because he has not
alleged any physical injuries that are more than de minimis, resulting from Defendant’s
acts and/or omissions. See Motion at 26-30. In support of his position, Defendant Carlton
submitted the Declaration of Dr. Santiago, who states in pertinent part:
1.
My name is Dr. Kalem Santiago, and I am in the
employment of the Florida Department of Corrections (FDC).
I am a medical doctor and have been the Chief of Medical
Service for the Florida Department of Corrections since
September 2017. Prior to that, I was the medical director of
Madison Correctional Institution from 2014 through 2017, and
a primary care physician at San Cristobal Medical Center and
Emergency Center from 2009 through 2014.
. . . .
8.
I have read the complaint in this case and am
aware that the Plaintiff has alleged that he suffered various
injuries due to a use of force that occurred on January 20,
2017.
9.
According to [the] patient’s medical records
provided to me for review, there is no evidence of Plaintiff’s
alleged injuries due to a use of force that occurred in [sic]
January 20, 2017. There is no evidence on his medical record
that during or after the use of force of January 20, 2017 the
patient had [a] skin rash, chemical burns to [his] face and
eyes, blurred and deteriorating vision, lung congestion
requiring breathing treatment, uncontrollable wheezing,
shortness of breath, continuous coughing, partial blindness,
eye dryness, and sores on his skin. In addition, there is no
41
evidence of a dermatologist’s recommendation, consult, or
evaluation.
10.
On January 20, 2017[,] the patient was seen by
medical for a Post Use of Force Exam. Per notes DC4-701C
and DC4-708, both completed that day, the patient denied
injury, his vital signs were normal, and no evidence of injury
was noted.[28] Education was provided to not use soap for 24
hours, and rinse with water as needed.
11.
On January 24, 2017[,] the patient was seen by
a nurse and he requested renewal of a diet pass, renewal of
a medication for his “liver condition,” and a front cuff pass.[29]
The patient did not mention any injuries, symptoms, or any
other complaints.
12.
On January 26, 2017[,] the patient was seen by
the doctor due to a nurse referral for evaluation of the front
cuff pass need and the special diet pass, that patient
requested on January 24, 2017. At that visit[,] the patient
didn’t mention to the doctor any of the alleged injuries, nor any
symptoms or complaints due to the use of force from January
20, 2017.
13.
On February 10, 2017, patient was seen by the
doctor for a right inguinal hernia evaluation, but the patient
didn’t mention any symptom or injury from the use of force of
January 20, 2017.[30]
14.
On May 26, 2017, and November 10, 2017, the
patient was seen by the doctor for his Chronic Illness
Clinics.[31] On both visits[,] the patient reported “I am doing
well” and didn’t complain or mention any of the alleged injuries
from the use of force of January 20, 2017.
28
See Doc. 61-5 at 13-14, Emergency Room Record and FDOC Diagram of Injury.
29
See Doc. 61-5 at 7, Chronological Record of Health Care.
30
See Doc. 61-5 at 6.
31
See Docs. 61-5 at 52-53; 61-6 at 50-51.
42
15.
On May 28, 2018[,] the patient wrote a sick call
requesting renewal of medications that were prescribed on
July 6, 2017.[32] He stated that the medications helped with
the pain and skin rashes from chemical burns to [the] face and
neck area that started on January 20, 2017. This is the first
time, sixteen months after the use of force of January 20,
2017, that according to his records, he reported skin issues
related to the use of force of January 20, 2017. He also
mentioned that a dermatology consult was pending,
however[,] there is no evidence of such a consult.
16.
On June 23, 2018[,] the patient wrote a sick call
[request] where he mentioned respiratory or breathing
issues.[33] This was seventeen months after the use of force
of January 20, 2017.
17.
On June 26, 2018, the patient was seen by a
nurse to address the sick call [request] of June 23, 2018.[34]
The patient complained of shortness of breath, however[,] his
vital signs and physical exam w[ere] normal, and no treatment
was required.
18.
On July 2, 2018, the patient was seen at medical
by a nurse due to peeling skin on hands, feet, and left hip.[35]
The nurse referred the patient to the doctor. The patient was
seen by the doctor on July 13, 2018, and prescribed antifungal
cream.[36]
19.
On August 13, 2018[,] he submitted another sick
call [request] about skin burning, peeling and scaling, and for
the first time he mentioned on the same sick call that his eyes
32
See Doc. 61-6 at 33.
33
See Doc. 61-6 at 14.
34
See Doc. 61-6 at 12-13.
35
See Doc. 61-6 at 7-8.
36
See Doc. 61-5 at 201.
43
were blurry and burn[ing].[ 37 ] He documented that these
problems started on or about January 2017.
20.
On August 14, 2018[,] the patient is seen by a
nurse due to above sick call [request].[38] He reported skin
rash on hands, the nurse documented peeling areas around
joints on hand. There was no mention of rash on face or neck
area. Tolnaftate cream and powder (antifungal treatment) was
provided to the patient.
21.
On September 26, 2018[,] the patient was seen
for a vision exam.[39] Snellen Chart exam is completed by the
nurse and the chart is referred to the doctor for an Optometrist
consult. The consult is completed by the doctor on October 1,
2018.[40]
22.
Overall, there is no evidence that the skin
problems that the patient began to report in 2018 were related
to the use of force of January 20, 2017. Notably, there was no
respiratory or breathing abnormal findings on the exam by
medical in 2018, and no evidence of vision problems related
to a use of force of January 20, 2017.
Santiago Decl. at 1-3.
In Brooks v. Warden, 800 F.3d 1295 (11th Cir. 2015), the Eleventh Circuit Court of
Appeals addressed the availability of compensatory and punitive damages as well as
nominal damages in suits brought by prisoners under § 1983. The Eleventh Circuit stated:
[Plaintiff]’s claim, however, is further governed by the Prison
Litigation Reform Act of 1995 [(PLRA)], Pub.L. No. 104B134,
'' 802B10, 110 Stat. 1321, 1366B77 (1996). The PLRA places
substantial restrictions on the judicial relief that prisoners can
seek, with the goal of “reduc[ing] the number of frivolous
37
See Doc. 61-5 at 194.
38
See Doc. 61-5 at 193.
39
See Doc. 61-5 at 187.
40
See Doc. 61-5 at 182.
44
cases filed by imprisoned plaintiffs, who have little to lose and
excessive amounts of free time with which to pursue their
complaints.” AlBAmin v. Smith, 637 F.3d 1192, 1195 (11th Cir.
2011) (quoting Napier v. Preslicka, 314 F.3d 528, 531 (11th
Cir. 2002)). The section of the Act at issue here, 42 U.S.C. '
1997e(e), reads this way:
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 or the commission of
a sexual act....
This Court has held that ' 1997e(e) applies to all federal civil
actions, including constitutional claims brought under ' 1983.
See Harris v. Garner (Harris II), 216 F.3d 970, 984B85 (11th
Cir. 2000) (en banc)....
In this case, [Plaintiff] did not allege any physical injury
. . . . Nevertheless, he sought “compensatory . . . punitive, and
nominal damages” from [Defendant]. Under the statute and
our caselaw, an incarcerated plaintiff cannot recover
either compensatory or punitive damages for
constitutional violations unless he can demonstrate a
(more than de minimis) physical injury. See AlBAmin, 637
F.3d at 1198 (punitive); Harris v. Garner (Harris I), 190 F.3d
1279, 1286 (11th Cir. 1999) (compensatory), reh’g en banc
granted and opinion vacated, 197 F.3d 1059 (11th Cir. 1999),
opinion reinstated in relevant part, 216 F.3d 970. However,
we have never had the opportunity in a published opinion to
settle the availability of nominal damages under the PLRA.
We do today, and we hold that nothing in ' 1997e(e) prevents
a prisoner from recovering nominal damages for a
constitutional violation without a showing of physical injury.
Brooks, 800 F.3d at 1307-08 (emphasis added).
To satisfy ' 1997e(e), a prisoner must assert physical injury that is more than de
minimis, but the injury does not need to be significant. See Thompson v. Sec’y, Fla. Dep’t
of Corr., 551 F. App’x 555, 557 (11th Cir. 2014) (citation omitted); Dixon v. Toole, 225 F.
45
App’x 797, 799 (11th Cir. 2007). Despite ' 1997e(e)’s limitation, successful constitutional
claimants who lack a physical injury may still recover nominal damages. See Hughes v.
Lott, 350 F.3d 1157, 1162 (11th Cir. 2003) (“Nominal damages are appropriate if a plaintiff
establishes a violation of a fundamental constitutional right, even if he cannot prove actual
injury sufficient to entitle him to compensatory damages.”). Further, the Eleventh Circuit
has instructed courts to dismiss an inmate’s compensatory and punitive damages claims
under ' 1997e(e) without prejudice to allow an inmate to refile when and if the inmate is
released. See Harris v. Garner, 216 F.3d 970, 980 (11th Cir. 2000).
Here, Berger asserts physical injuries that are greater than de minimis. The injuries
Berger complains about are allegedly the result of Defendant Carlton’s authorizing and/or
directing the chemical spraying. According to Berger, he suffered partial blindness,
dermatological issues, and respiratory difficulties that required several months of medical
treatment, as a result of the chemical spraying and delayed decontamination shower. See
SAC at 9, 12-13. The video evidence shows Berger suffering the effects of the chemical
agents and captures Berger complaining of shortness of breath and lightheadedness after
the chemical spraying. See Def. Ex. F2. Defendant argues that Berger did not complain
of any injury related to the January 20, 2017 incident to the medical department until May
28, 2018. See Motion at 30 (citing Santiago Decl. at 2, ¶ 15). However, the record reflects
that Berger complained of injuries related to the January 20th application of chemical
agents in sick call requests, as early as January 24, February 2, and March 12, 2017.
See P. Ex., Doc. 70-2 at 1-3; see also Def. Ex., Doc. 61-5 at 41-42.
46
Berger’s alleged injuries, described as dermatological, vision, and respiratory
distress leading to months of medical treatment, cross § 1997e(e)’s de minimis threshold.
See Thompson, 551 F. App’x at 557 n.3 (describing an approach of asking whether the
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) (“A physical injury is an observable
or diagnosable medical condition requiring treatment by a medical care professional. It is
not a sore muscle, an aching back, a scratch, an abrasion, a bruise, etc., which lasts even
up to two or three weeks.”)). Thus, the Motion is due to be denied to the extent that the
Court finds Berger’s request for compensatory and punitive damages is not precluded
under § 1997e(e) because he alleges that he suffered physical injuries that are greater
than de minimis.
In consideration of the foregoing, it is now
ORDERED:
1.
Defendants Carlton and Williams’ Motion for Summary Judgment (Doc. 61)
is GRANTED as to (1) Berger’s Eighth Amendment claims against Defendant Williams;
(2) Defendant Williams’ assertion of qualified immunity as to Berger’s Eighth Amendment
claims against him; (3) Berger’s Eighth Amendment claim relating to the denial of a timely
decontamination shower against Defendant Carlton; and (4) Defendant Carlton’s
assertion of qualified immunity as to Berger’s Eighth Amendment claim relating to the
denial of a timely decontamination shower against him. Otherwise, the Motion is DENIED.
2.
The Clerk shall enter judgment in favor of Defendant Michael Williams and
make the appropriate notation on the docket.
47
3.
The parties must confer in good faith to discuss the issues and the
possibility of settlement as to Berger’s remaining Eighth Amendment claim against
Defendant Carlton. No later than August 5, 2020, the parties must notify the Court
whether they are able to reach a settlement. If the parties are unable to settle the case
privately among themselves, they must notify the Court if they wish to have the case
referred to a United States Magistrate Judge for a settlement conference. Otherwise, the
Court will enter a case management order, set a trial date, and direct the parties to begin
trial preparations.
DONE AND ORDERED at Jacksonville, Florida, this 6th day of July, 2020.
sc 6/18
c:
Jackie Berger, FDOC #M38196
Counsel of Record
48
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