Palmer v. Hampton et al
ORDER granting in part and denying in part 41 Motion for Summary Judgment; directing the parties to notify the Court by October 20, 2021, as to whether they are able to reach a settlement as to Palmer's remaining Eighth Amendment claims against Defendants Hampton, Oliver, and Bryan. Signed by Judge Marcia Morales Howard on 9/8/2021. (BL)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
LESAMUEL PALMER, A/K/A
KING ZULU M. ALI SHABAZZ,
Case No. 3:19-cv-780-MMH-MCR
L. HAMPTON, et al.,
Plaintiff LeSamuel Palmer, an inmate of the Florida penal system,
initiated this action on June 28, 2019, by filing a pro se Civil Rights Complaint
(Doc. 1). He filed an Amended Complaint (Doc. 6) on August 16, 2019, and a
Second Amended Complaint (SAC; Doc. 31) on June 29, 2020. 1 In the SAC,
Palmer asserts claims pursuant to 42 U.S.C. § 1983 (related to a May 23, 2019
chemical spraying and cell extraction at Union Correctional Institution (UCI))
In referencing documents filed in this case, the Court cites to the document
and page numbers as assigned by the Court’s Electronic Case Filing System.
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against Defendants L. Hampton, W. Oliver, J. Bryan, and E.A. Biascochea. 2
As relief, Palmer requests monetary, injunctive, and declaratory relief.
This matter is before the Court on Defendants’ Motion for Summary
Judgment (Motion; Doc. 41). They submitted exhibits in support of the Motion.
See Docs. 41-1 through 41-15; S-44. The Court advised Palmer 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.
7); Summary Judgment Notice (Doc. 43). Palmer filed a response in opposition
to the Motion, see Response (Doc. 53), with exhibits, see Docs. 53-1 through 534. The Motion is ripe for review.
II. Plaintiff’s Allegations 3
In his SAC, Palmer alleges that Defendants Hampton, Oliver, and
Bryan, as members of a cell extraction team, violated his Eighth Amendment
right when they assaulted him in cell 2210 at UCI’s V dormitory on the
afternoon of May 23, 2019. See SAC at 3-5. Additionally, he states that
The Court dismissed Decubellis as a Defendant. See Order (Doc. 48).
The recited facts are drawn from the SAC.
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Defendant Biascochea violated his Eighth Amendment right when she
authorized the chemical spraying and cell extraction. See id. He also asserts
that Biascochea violated his Eighth and Fourteenth Amendment rights when
she assigned him to S dormitory where he endured subpar conditions and was
treated differently than close management (CM) inmates who were housed in
U and V dormitories. See id.
As to the specific underlying facts, Palmer alleges that, after the
application of chemical agents, Hampton asked Palmer if he would “submit to
cuff[s],” and Palmer said, “yes.” Id. at 5. Palmer states that Hampton opened
the cell door’s flap, and Palmer gave Hampton his clothes. Id. According to
Palmer, he obeyed Hampton’s directive “to bend over” and “to pull butt cheeks
apart,” but Hampton ordered Palmer “to repeat it over and over[,] stating
[Palmer] didn’t do it right.” Id. Palmer maintains that he complied. See id.
Palmer also avers that Hampton told Lieutenant Jackson that he refused to
comply. See id. According to Palmer, Biascochea obtained the Warden’s
permission for the cell extraction when she knew Palmer had not refused
Hampton’s orders, and gave the “call order” to Lieutenant Jackson who
directed Hampton, Oliver, and Bryan to extract Palmer from the cell. Id. at 6.
Palmer asserts that Hampton, Oliver, and Bryan “rushed in the cell and
started beating” him. Id. He states that they kicked and punched him. See id.
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He maintains that he was nude and screamed he was not resisting Defendants’
efforts to restrain him, however, they continued to beat him. See id. According
to Palmer, Hampton grabbed Palmer’s “penis and balls and pulled and
twist[ed] them,” and punched the back of Palmer’s head “using the handcuffs
as brass knockers.” Id. He avers that Hampton, Oliver, and Bryan yelled “stop
resisting” and continued to assault Palmer until Lieutenant Jackson said,
“that’s enough,” and directed Defendants to “back off.” Id. Palmer maintains
that Lieutenant Jackson ordered Defendants to clothe Palmer in undershorts.
See id. He describes his injuries as a bleeding knot on the back of his head,
swollen hands, and difficulties urinating. See id. at 5.
Palmer avers that Biascochea ignored his complaints about Hampton’s
abuse, and neither reported the abuse nor allowed Palmer to seek medical
attention. See id. at 6. According to Palmer, Biascochea refused to give him
clothes, bedding, soap, toothpaste, a toothbrush, and tissue in S dormitory. See
id. He complains that he ate with cardboard utensils that cut his mouth, drank
hot coffee from a “paper cone cup,” and was in “full restraint[s]” with “a spit
mask over his whole head” when he left his cell. Id.
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
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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 “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
Rule 56 was revised in 2010 “to improve the procedures for presenting and
deciding summary-judgment motions.” Rule 56 advisory committee’s note 2010
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
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
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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 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
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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 maintain that there are no genuine issues of
material fact, and therefore, the Court should grant summary judgment in
their favor as to Palmer’s Eighth and Fourteenth Amendment claims against
them. See Motion at 8-19. They also assert that they are entitled to qualified
immunity. See id. at 19-20. Additionally, they contend that Palmer 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 20-22. In his Response, Palmer maintains that
Defendants are not entitled to summary judgment in their favor as to his
Eighth and Fourteenth Amendment claims against them. See Response at 58, 11-18. He also asserts that he is entitled to compensatory and punitive
damages as well as injunctive and declaratory relief. See id. at 9-11, 18-19. 5
Palmer states that he is not seeking monetary damages from Defendants in
their official capacities. See Response at 18; see also Order (Doc. 20) at 11.
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A. Excessive Use of Force
Pursuant to the Eighth Amendment to the United States Constitution,
“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.” U.S. Const. amend. VIII. With respect to
the appropriate analysis in an excessive use of force case, the Eleventh Circuit
[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
McKinney v. Sheriff, 520 F. App’x 903, 905 (11th Cir. 2013) (per curiam). When
considering these factors, courts “must also give a ‘wide range of deference to
prison officials acting to preserve discipline and security,’ including when
considering ‘[d]ecisions made at the scene of a disturbance.’” Cockrell v.
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Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007) (quoting Bennett v. Parker, 898
F.2d 1530, 1533 (11th Cir. 1990)).
“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, while not dispositive, 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
Hudson, 503 U.S. at 7.
Whitley v. Albers, 475 U.S. 312 (1986).
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Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.
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 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. Conditions of Confinement
The Eighth Amendment “imposes duties on [prison] officials, who must
provide humane conditions of confinement; prison officials must ensure that
inmates receive adequate food, clothing, shelter, and medical care, and must
‘take reasonable measures to guarantee the safety of the inmates.’” Farmer v.
Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517,
526-27 (1984)). “To establish an Eighth Amendment violation, a prisoner must
satisfy both an objective and subjective inquiry regarding a prison official’s
conduct.” Oliver v. Fuhrman, 739 F. App’x 968, 969 (11th Cir. 2018) (citing
Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004)). The Eleventh
Circuit has explained:
Under the objective component, a prisoner must
allege a condition that is sufficiently serious to violate
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
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the Eighth Amendment. Id.[ 9 ] The challenged
condition must be extreme and must pose an
unreasonable risk of serious damage to the prisoner’s
future health or safety. Id. The Eighth Amendment
guarantees that prisoners are provided with a
minimal civilized level of life’s basic necessities. Id.
Under the subjective component, a prisoner
must allege that the prison official, at a minimum,
acted with a state of mind that constituted deliberate
indifference. Id. This means the prisoner must show
that the prison officials: (1) had subjective knowledge
of a risk of serious harm; (2) disregarded that risk; and
(3) displayed conduct that is more than mere
negligence. Farrow v. West, 320 F.3d 1235, 1245 (11th
Oliver, 739 F. App’x at 969-70. “To be cruel and unusual punishment, conduct
that does not purport to be punishment at all must involve more than ordinary
lack of due care for the prisoner’s interests or safety.” Whitley v. Albers, 475
U.S. 312, 319 (1986).
C. Supervisory Liability
As to supervisory liability, the Eleventh Circuit has stated:
“Supervisory officials are not liable under
section 1983 on the basis of respondeat superior or
vicarious liability.” Belcher v. City of Foley, Ala., 30
F.3d 1390, 1396 (11th Cir. 1994) (internal quotation
marks and citation omitted). “The standard by which
a supervisor is held liable in her individual capacity
for the actions of a subordinate is extremely rigorous.”
Gonzalez, 325 F.3d at 1234 (internal quotation marks
Chandler, 379 F.3d at 1289.
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and citation omitted).[ 10] “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).[ 11] “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)); see also Keith v. DeKalb Cnty., Ga., 749 F.3d
1034, 1047-48 (11th Cir. 2014). In sum,
Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003).
Cottone v. Jenne, 326 F.3d 1352 (11th Cir. 2003).
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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,[ 12] (2) the existence of a custom or policy that
resulted in deliberate indifference to the plaintiff's
constitutional rights,[ 13 ] (3) facts supporting an
inference that the supervisor directed the unlawful
action or knowingly failed to prevent it,[ 14 ] 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).[ 15 ] 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).
D. Qualified Immunity
The Eleventh Circuit has stated:
The qualified-immunity defense reflects an
effort to balance “the need to hold public officials
See Goebert v. Lee Cnty., 510 F.3d 1312, 1327 (11th Cir. 2007) (“Causation,
of course, can be shown by personal participation in the constitutional violation.”).
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.”).
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
See West v. Tillman, 496 F.3d 1321 (11th Cir. 2007).
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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).
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.
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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 112021 (citation omitted).
Jones v. Fransen, 857 F.3d 843, 850-51 (11th Cir. 2017). The Court has
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 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
Alcocer v. Mills, 906 F.3d 944, 951 (11th Cir. 2018).
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VI. Analysis 16
A. Eighth and Fourteenth Amendment Claims
Palmer asserts that Defendants Hampton, Oliver, and Bryan violated
his Eighth Amendment right when they used excessive force against him
during a May 23, 2019 cell extraction. Additionally, he states that Defendant
Biascochea violated his Eighth and Fourteenth Amendment rights when she
authorized the use of force and placed him on property restriction. Defendants
assert that they are entitled to summary judgment as to Palmer’s Eighth and
Fourteenth Amendment claims against them. In support of their position,
Defendants submitted exhibits, including incident reports, Doc. 41-1, the
Declaration of Lyndell Hampton (Hampton Decl.), Doc. 41-5; the Declaration
of Willie Oliver (Oliver Decl.), Doc. 41-6; the Declaration of Justin Bryan
(Bryan Decl.), Doc. 41-7; the Declaration of Kellie Caswell, RN, BSN (Caswell
Decl.), Doc. 41-8; Use of Force Authorizations, Doc. 41-9; Use of Force Reports,
Doc. 41-10; Property Restriction Reports, Doc. 41-11; the Declaration of Emma
Biascochea (Biascochea Decl.), Doc. 41-12; Palmer’s deposition (P. Depo), 17
For purposes of summary judgment, the Court views the evidence and all
reasonable inferences therefrom in the light most favorable to Palmer. Thus, the facts
described in the Court’s analysis may differ from those that ultimately can be proved.
Palmer states there are multiple errors in the deposition transcript,
however, he only provides one example. See Doc. 56-1 at 3, Errata Sheet.
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Doc. 41-13; Palmer’s Witness Statement, Doc. 41-14; and Palmer’s grievances,
Doc. 41-15. With the Court’s permission, see Order (Doc. 40), Defendants also
submitted two digital video discs under seal. See Exhibits Filed Under Seal
(Doc. 44); Doc. S-44, Def. Exs. 2, fixed wing recordings; 4, handheld recordings.
In an Incident Report, Lieutenant Jackson provided a chronology of the
events with details related to the application of chemical agents, the cell
extraction, and property restriction. He stated:
Inmate PALMER was disrupting the normal
operations of the building by continuously beating,
kicking[,] and banging on the cell door. At
approximately 1300 hours, due to Inmate PALMER’S
continuous refusal to cease his disruptive behavior, I
contacted Warden T.D. Anderson, who authorized the
use of OC Chemical Agents to bring Inmate PALMER
into compliance with a lawful order. Lieutenant
Robert Oliver, Mental Health Counselor Lenora
Smith, and I utilized our Crisis Intervention Training
techniques in an attempt to deescalate the situation,
to no avail. I then conducted a review of the DC4-650B
(Risk Assessment for the Use of Chemical Agents and
Electronic Immobilization Devices). It indicated that
on May 23, 2019, at the time of the pre-confinement
health appraisal, based on a review of the medical
record, Inmate PALMER had no known medical
conditions that would preclude the use of chemical
agents. To confirm that there had been no changes in
Inmate PALMER’S medical condition, I contacted
LPN Karla Kennedy and she stated that Inmate
PALMER had no medical conditions that would
preclude the use of chemical agents. A security chain
was retrieved and attached to the cell door handle of
Inmate PALMER’S cell, and also to the adjacent cell. I
instructed Officer Byron Mann to retrieve the U17
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Dormitory handheld video camera and begin recording
at approximately 1316 hours, with myself conducting
a lead in statement. I issued Inmate PALMER a final
order and advised him that chemical agents would be
administered without further warning if he refused to
comply. At approximately 1323 hours, video recording
was concluded due to Inmate Palmer momentarily
ceasing his actions. At approximately 1335 hours,
Inmate PALMER resumed his disruptive behavior.
Video recording resumed at approximately 1340
hours, with Officer Mann acting as camera operator. I
conducted a lead in statement at that time. Upon
arrival at cell front, it was observed that Inmate
PALMER had utilized his personal property to cover
the cell’s observation window. I witnessed Officer
Michael Decubellis administer two applications of OC
chemical agents, utilizing three (3) one (1) second
burst[s] into Inmate PALMER’S cell through the
opening of the cell door, while Officer James
Cartwright utilized the shield as a precautionary
measure.[ 18 ] Due to Inmate PALMER utilizing his
state-issued mattress and bed linens in an attempt to
block the effects of chemical agents, it is unknown if
the chemical agents made contact with him. Due to
Inmate PALMER blocking the effects of chemical
agents, Warden Anderson was contacted and
authorized the use of CS chemical agents. I witnessed
Officer Decubellis administer one application of CS
chemical agents, utilizing three (3) one (1) second
burst[s] into Inmate PALMER’S cell. The cell door was
then secured. Due to Inmate PALMER utilizing his
state-issued mattress and bed linens in an attempt to
block the effects of chemical agents, it is unknown if
the chemical agents made contact with him. The
chemical agents had no effect on Inmate PALMER and
he continued to refuse all orders to submit to restraint
procedures. I contacted Warden Anderson and advised
See Doc. 41-1 at 1-2 (Decubellis’ Incident Report); see id. at 9 (Cartwright’s
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her of Inmate PALMER’S continuous refusal and the
ineffectiveness of chemical agents. Duty Warden
Anderson authorized the use of a forced cell extraction
to remove Inmate PALMER from his cell. I instructed
Officer Dominic Ellis to retrieve a second handheld
camera. Two cameras were used during this incident
so that one camera could remain cell front while a lead
in statement and team introduction was conducted for
the cell extraction on the second camera. There was no
lapse in recording during this incident. Video
recording on the second camera began at
approximately 1419 hours, at which time I conducted
my lead in statement. At approximately 1422 hours,
once the team assembled cell front, I conducted a
closing statement, at which time video recording on
the first handheld camera concluded. Inmate
PALMER was ordered to submit to restraint
procedures, to which he initially complied; however, he
refused to comply with proper strip search procedures.
The cell door was breached at which time the cell
extraction team entered the cell. The team members
forced Inmate PALMER to the cell floor where they
gained control of his extremities. Once all restraints
were applied, Inmate PALMER was pinned to [the]
cell floor while boxers were placed on Inmate
PALMER to prevent the recording of nudity. Inmate
PALMER was assisted to his feet and escorted to the
Quad 2 cold water shower. Inmate PALMER was
instructed not to use soaps or lotions during his
shower. Once Inmate PALMER’S decontamination
shower was complete, he received a clean shroud. At
approximately 1440 hours, Inmate PALMER made
allegations of staff abuse and PREA [(Prison Rape
Elimination Act)]. It should be noted that Inmate
PALMER did not give specific details or staff
members[’] names regarding his PREA allegation.
Inmate PALMER was then escorted to the VDormitory Medical Treatment Room where he
received a post use of force physical, conducted by LPN
Kennedy with no injuries noted. Upon completion of
Case 3:19-cv-00780-MMH-MCR Document 59 Filed 09/09/21 Page 20 of 44 PageID 559
his medical assessment, Inmate PALMER was
escorted to S-Dormitory, where he was rehoused in cell
S3109S. Video recording was continuous and
uninterrupted and concluded at approximately 1455
hours. Inmate PALMER was monitored for (60)
minutes by Officer Dominic Ellis following the use of
chemical agents, with no signs of respiratory distress
noted. Cell V2210L and the shower were
decontaminated. The digital handheld camera was
downloaded to a DVD. The DVD, with a DC1-801
(Chain of Custody) attached, was placed in the Use of
Force box located in the Colonel’s Office Hallway. All
staff involved received a post use of force physical,
with no injuries noted. The following forms were
completed and included in the use of force packet:
DC4-701C (Emergency Room Record),[ 19 ] DC4-708
(Diagram of Injury),[ 20 ] DC6-216 (Chemical Agent
Accountability Log), and [a] DC6-232 (Authorization of
Use of Force).[ 21] This incident was noted on Inmate
PALMER’S DC6-229 (Daily Record of Special
Housing). Duty Warden Anderson was notified of the
outcome of this incident.
Inmate PALMER is in violation of F.A.C. Chapter 33601.314 rules of prohibited conduct and will be
receiving a disciplinary report for disciplinary
infraction: (2-3) [c]reating a minor disturbance.[ 22 ]
Due [to] Inmate PALMER utilizing his personal
property to cover the cell’s observation window and
See Caswell Decl. at 25 (noting “[t]wo hematomas to back of the head”).
See Caswell Decl. at 26 (“Two hematomas to back of head. They were not
bleeding at time of assessment.”).
See Doc. 41-9.
See Doc. 41-3, Inmate Disciplinary Actions.
Case 3:19-cv-00780-MMH-MCR Document 59 Filed 09/09/21 Page 21 of 44 PageID 560
utilizing his state-issued mattress and bed linens in an
attempt to block the effects of chemical agents,
Warden Anderson authorized for Inmate Palmer to be
placed on property restriction. Under my supervision,
Inmate PALMER was placed on temporary property
restriction due to the misuse of his state-issued
mattress, linens, and personal property. Inmate
PALMER was counseled and advised of the reason for
the property restriction. Inmate PALMER is
authorized to possess a pair of state issued boxers,
along with appropriate health and comfort items and
approved footwear. At no time will Inmate PALMER
be left without a means to cover himself. Sergeant
Robert Castleberry and Officer Eric Prock inventoried
Inmate PALMER’S personal property. Officer Prock
secured Inmate PALMER’S property in the Main
Property Room, along with the DC6-220 attached. I
have reviewed the property being restricted and
confirmed that the DC6-220 (Inmate Impounded
Personal Property List) reflects the correct property
restricted and staff has signed the DC6-220. Inmate
PALMER was not present when the property was
inventoried; therefore, he was unable to sign the DC6220. Inmate PALMER received a copy of the DC6-220.
A Restriction Memo was completed and placed on
Inmate PALMER’S cell door. A Property Restriction
Form was completed and forwarded to the Chief of
Security.[ 23] This incident was forwarded to the Chief
of Security and the Assistant Warden’s Office for
further review and possible MINS entry.
Doc. 41-1 at 1-8.
See Doc. 41-11 at 3 (noting property restriction is not to exceed 72 hours).
Case 3:19-cv-00780-MMH-MCR Document 59 Filed 09/09/21 Page 22 of 44 PageID 561
Officer Michael Decubellis also provided a description of the
circumstances leading up to the cell extraction. 24 He stated:
At approximately 1335 hours, on Thursday, May 23,
2019, while assigned as U-Dormitory Housing Officer,
I was summoned to V-Dormitory by Lieutenant Eric
Jackson for a possible organized use of chemical
agents involving Inmate PALMER, LeSamuel – DC
#L41847 (V2210L). Upon my arrival, Lieutenant
Jackson informed me that Inmate PALMER was
disrupting the normal operations of the building by
continuously beating, kicking[,] and banging on the
cell door. Upon arrival at cell front, it was observed
that Inmate PALMER had utilized his personal
property to cover the cell’s observation window. At
approximately 1342 hours, the cell door was breached
and under the direct supervision of Lieutenant
Jackson, I administered three (3) one (1) second
burst[s] of OC Chemical Agents canister #457585 into
Inmate PALMER’S cell, while Officer James
Cartwright utilized the shield as a precautionary
measure. Due to Inmate PALMER utilizing his stateissued mattress and bed linens in an attempt to block
the effects of chemical agents, it is unknown if the
chemical agents made contact with him. At
approximately 1353 hours, under the direct
supervision of Lieutenant Jackson, I administered
three (3) one (1) second burst[s] of OC chemical agent
canister #5532747 into Inmate PALMER’S cell, as
Officer Cartwright utilized the shield as a
precautionary measure. Due to Inmate PALMER
utilizing his state-issued mattress and bed linens in an
attempt to block the effects of chemical agents, it is
unknown if the chemical agents made contact with
Palmer voluntarily dismissed Decubellis as a Defendant in the action. See
Voluntary Dismissal (Doc. 46). In doing so, Palmer stated that Decubellis “didn’t
participate in the unlawful use of force upon [him]” and that “Decubellis was not a
part of the cell extraction team. . . .” Id.
Case 3:19-cv-00780-MMH-MCR Document 59 Filed 09/09/21 Page 23 of 44 PageID 562
him. Due to the first two applications of chemical
agents being ineffective, Warden Tony Anderson was
contacted, and authorized the use of CS chemical
agents. Inmate Palmer continued to refuse to comply
with restraint procedures. At approximately 1404
hours, under the direct supervision of Lieutenant
Jackson, I administered three (3) one (1) second
burst[s] of CS chemical agent canister #5484598 into
Inmate PALMER’S cell, as Officer Cartwright utilized
the shield as a precautionary measure. Due to Inmate
PALMER utilizing his state-issued mattress and bed
linens in an attempt to block the effects of chemical
agents, it is unknown if the chemical agents made
contact with him. No further force was used by me. It
should be noted that I am certified in the use of
chemical agents and my chemical agents card expires
in September of 2019. This incident was referred to the
Shift Supervisor for further disposition.
Id. at 1-2.
In a Declaration, Defendant Biascochea describes her role during the
events that transpired on May 23, 2019. She states in pertinent part:
I have reviewed the second amended complaint
filed by inmate LeSamuel Palmer (FDC #L41847) and
I am aware of the allegations against me. These
allegations pertain to an organized use of force that
occurred on May 23, 2019. Plaintiff alleges that I
authorized [the] use of chemical agents and a cell
extraction on him. He further alleges that I housed
him in S-Dorm and denied him certain items including
clothes, bedding, soap, toothpaste, toothbrush[,] and
I did not authorize the use of chemical
agents or the cell extraction of Plaintiff on May
23, 2019. FDC rules require the Warden or someone
designated by the Warden to authorize a use of force.
Case 3:19-cv-00780-MMH-MCR Document 59 Filed 09/09/21 Page 24 of 44 PageID 563
Uses of force that occur during normal business hours
(Monday through Friday 8:00 a.m. to 5:00 p.m.) are
typically authorized by the Warden. However, if the
Warden is not available, a person designated by the
Warden can authorize the use of force. Those
designated persons include the Assistant Warden of
Operations, the Assistant Warden of Programs, the
Colonel, the Classification Supervisor, and myself as
the Major. The Duty Warden is typically responsible
for authorizing uses of force that occur outside of
normal business hours.
The use of force occurred on Thursday,
May 23, 2019 during normal business hours and
was authorized by the Warden as reflected on
the Authorizations of Use of Force Forms.[ 25]
I authorized Plaintiff to be placed on
property restriction on May 23, 2019. FDC rules
permit the restriction of an inmate’s personal and/or
state issued property when they are misused. [ 26] Such
property restrictions are common practice.
Plaintiff was placed on property restriction
because he used his personal property to cover the
window on his cell door which prevented staff from
seeing inside his cell. This presents a security concern
and is against FDC rules. Plaintiff also utilized his
state issued property, specifically his mattress, bed
linens, and clothing to block the chemical agents. Due
to this misuse of his personal and state issued
property, Plaintiff was placed on property restriction
for a period not to exceed 72 hours.
Plaintiff was not denied a toothbrush,
toothpaste, soap[,] or tissue. While inmates on
See Doc. 41-9.
See Doc. 41-11.
Case 3:19-cv-00780-MMH-MCR Document 59 Filed 09/09/21 Page 25 of 44 PageID 564
property restriction may have items purchased from
the commissary removed, including items such as
toothpaste and soap, they are provided replacement
items during the course of the restriction.
Plaintiff alleges that I made the decision to
house Plaintiff in S-Dorm. I did not make this
decision. At the time of this use of force, S-Dorm
housed Close Management inmates. The Warden
decided who was housed in S-Dorm.
Biascochea Decl. at 1-2 (emphasis added and paragraph enumeration omitted).
Next, Defendants Hampton, Oliver, and Bryan explain their roles as
members of the cell extraction team. In a Declaration, Hampton states in
I have reviewed the second amended complaint
filed by inmate LeSamuel Palmer (FDC #L41847) and
I am aware of the allegations against me. These
allegations pertain to an organized use of force that
occurred on May 23, 2019 where I was part of the cell
Specifically, Plaintiff alleges that prior to the
cell extraction, I conducted strip procedures on
Plaintiff. He alleges that he complied with the strip
procedure. Plaintiff further alleges that during the cell
extraction, I punched and kicked him and used
handcuffs as “brass knockers” to hit him in the back of
his head. He also alleges that I pulled and twisted his
genitals to cause pain.
Plaintiff’s claims are absolutely not true.
Plaintiff failed to comply with the strip
procedure. At no time did I punch, kick, or
otherwise “beat” Plaintiff. At no time did I grab,
pull[,] or twist Plaintiff’s genitals.
Case 3:19-cv-00780-MMH-MCR Document 59 Filed 09/09/21 Page 26 of 44 PageID 565
On May 23, 2019, I was working confinement in
another dorm when I was summoned to V-Dormitory
for a possible cell extraction of Plaintiff. When I
arrived at the dorm, I assembled with the other cell
extraction team members. There were five (5)
members of the cell extraction team. Each team
member was assigned a number and had assigned
responsibilities upon entry of the cell. I was team
member #2 and was responsible for the upper
right quadrant of Plaintiff’s body and applying
Pursuant to FDC procedure, the members of the
cell extraction team were placed on hand-held video.
Lt. Jackson provided a lead in statement which
included the date and time of the recording, the
location of the recording, and a brief description of the
events that occurred prior to assembly of the cell
extraction team. The team members, who were lined
up in numerical order, stated their name, their
assigned number[,] and their assigned responsibilities
during the cell extraction. Lt. Jackson then provided
standard instructions to the cell extraction team
members and the camera operator.
I, along with the other members of the cell
extraction team, went to Plaintiff’s cell which was
located on the second floor of the dormitory. The team
members walked to the cell in numerical order with
the #1 team member at the front of the line.
Once the team arrived at Plaintiff’s cell, he was
given an order to submit to restraint procedures by Lt.
Jackson. As the #2 member of the team[,] I was
able to see inside Plaintiff’s cell. Plaintiff
initially complied with the procedures by
removing all his clothing. However, he refused
to comply with strip procedures. I instructed
Plaintiff to back up, turn around and bend at the
Case 3:19-cv-00780-MMH-MCR Document 59 Filed 09/09/21 Page 27 of 44 PageID 566
waist and cough. Plaintiff failed to bend at the
waist. I again instructed Plaintiff to bend at the
waist. He again failed to bend at the waist. I
then notified Lt. Jackson that Plaintiff was not
bending at the waist. Lt. Jackson came to the
cell window and instructed Plaintiff to squat
and cough. Plaintiff failed to comply. Due to
Plaintiff’s failure to comply, his cell door was
I entered the cell after the #1 team member. The
#1 team member used a shield to get Plaintiff on the
ground. After Plaintiff was on the ground, I grasped
Plaintiff’s right arm and forced it behind his back.
When the #3 team member secured Plaintiff’s
left arm, I applied the handcuffs. Plaintiff was
resisting efforts to be restrained in the
handcuffs. Once all restraints were applied, I
pinned Plaintiff’s upper torso to the ground
while boxers were obtained for Plaintiff.
Hampton Decl. at 1-3 (emphasis added and paragraph enumeration omitted).
Defendants Oliver and Bryan provide similar accounts. In a Declaration,
Oliver states in pertinent part:
Plaintiff’s claims are absolutely not true.
At no time did I punch, kick, or otherwise “beat”
I was team member #5 and was responsible for
the lower left quadrant of [Palmer]’s body.
I was unable to see inside Plaintiff’s cell during the
strip search procedure. However, it was indicated by
Case 3:19-cv-00780-MMH-MCR Document 59 Filed 09/09/21 Page 28 of 44 PageID 567
another team member and Lt. Jackson that Plaintiff
was not complying. I have no reason to believe that
Plaintiff was complying with strip procedures.
Due to Plaintiff’s failure to comply, his cell door
was breached. I was the last team member to enter the
cell. After Plaintiff was on the ground, I grasped
Plaintiff’s left leg and pinned it to the cell floor. After
Officer Bryan pinned Plaintiff’s right leg, I pinned
both of Plaintiff’s leg[s] to enable Officer Bryan
to release his grasp and apply leg restraints.
Plaintiff was resisting efforts to be placed in
restraints. Once the restraints were applied, I
released my grasp and did not use any further
Oliver Decl. at 1-2 (emphasis added and paragraph enumeration omitted).
Additionally, Bryan similarly avers that he never punched, kicked, or
otherwise beat Palmer. See Bryan Decl. at 1. Like Oliver, Bryan was unable to
see inside Palmer’s cell during the strip search procedure due to his fourth
position in line waiting for a directive to enter the cell. See id. at 2. He states
in pertinent part:
I entered the cell after team members 1-3. After
Plaintiff was on the ground, I grasped Plaintiff’s right
leg and pinned it to the cell floor until Sergeant Oliver
was able to gain control of both Plaintiff’s legs. At that
time, I applied leg restraints. Plaintiff was resisting
efforts to be placed in restraints. Once the restraints
were applied, I released my grasp and did not use any
Id. (paragraph enumeration omitted).
Case 3:19-cv-00780-MMH-MCR Document 59 Filed 09/09/21 Page 29 of 44 PageID 568
To defeat the Motion, Palmer is required to present evidence to show
that there is a genuine issue for trial. In opposing Defendants’ Motion, Palmer
asserts that Defendants are not entitled to summary judgment. He submitted
the Declarations of S-dormitory inmates, see Docs. 53-2 at 2-3, and Vdormitory inmates, see id. at 4, 7, as well as his own Declaration, see id. at 56 (Palmer Decl.), in support of his contentions. In his Response, Palmer
describes the beating as “assaulting the plaintiff with close[d] hands (fist), knee
jabbing” and “using the handcuffs as brass knockers.” Response at 4. He also
provides details related to his attempt to comply with orders before Defendants
removed him from his cell, and asserts that “just because [he] didn’t fully follow
[the] order” due to mental issues, Defendants still used excessive force. Id. at
15. In a Declaration, Palmer provides a factual account that is similar to the
allegations in his SAC. He states in pertinent part:
Lt. Jackson came back to the cell and order[ed]
for the handheld camera to be changed out. And asked
me was I going to submit to handcuff[s] and I stated,
“yes.” I handed my clothes (that … remained on –
boxers and t-shirt) to Officer Hampton [a]nd was going
through the procedure of strip searching. While
standing naked I did the search procedure. And Officer
Hampton stated I didn’t do it right[,] so Lt. Jackson
came to the door and told me to repeat the procedure.
When I did as told[,] Lt. Jackson order[ed] the cell
extraction team to “line it up” and order[ed] the
team to run into the cell….
Case 3:19-cv-00780-MMH-MCR Document 59 Filed 09/09/21 Page 30 of 44 PageID 569
The cell extraction team ran in and started
punching on me [and] la[i]d on top of me. Officer
Hampton started beating me on the back of the
head with handcuffs. H[e] and other officers
against me. Officer Hampton grabbed my
manhood, etc. while other officer[s] continue[d]
to beat on me. They kept up the action until Lt.
Jackson called off the assault “ya[’]ll back off.” The
handheld video will hear Lt. Jackson stating that I had
on “no” clothes [a]nd order[ed] another officer to bring
me some boxers (undershorts).
Palmer Decl. at 5-6 (emphasis added and selected punctuation deleted). At his
deposition, Palmer similarly maintained that the cell extraction was
unnecessary because he had complied with Lieutenant Jackson’s and
Hampton’s directives, and that Hampton, Oliver, and Bryan used excessive
force. See P. Depo at 20-21, 42-56, 71-72.
The parties agree that the video evidence generally captures the May 23,
2019 use of chemical agents, the cell extraction, the post-use-of-force
decontamination shower, Nurse Kennedy’s medical assessment, and the escort
to S dormitory. 27 However, they disagree as to what the recording shows inside
Defendants’ exhibit 2 contains seven video recordings with various views
from fixed wing (FW) cameras. The FW footage provides a general chronology of the
May 23, 2019 events: first chemical agent application (1:42 p.m.), second chemical
agent application (1:53 p.m.), third chemical agent application (2:04 p.m.); 2:25 p.m.
cell extraction; 2:31 p.m. decontamination shower; 2:40 p.m. medical assessment; 2:43
p.m. escort to S dormitory; 2:55 p.m. arrival at S dormitory cell. Defendants’ exhibit
4 contains three video recordings from a handheld (HH) camera: HH1 (Lieutenant
Jackson’s final order); HH2 (use of chemical agents); and HH3 (cell extraction).
Case 3:19-cv-00780-MMH-MCR Document 59 Filed 09/09/21 Page 31 of 44 PageID 570
the cell where Hampton, Oliver, and Bryan worked together to restrain Palmer
during the cell extraction. The parties generally cite to the handheld video
footage and argue that the video evidence supports their factual accounts as to
how the cell extraction unfolded. See Motion at 2-5; Response at 2-4.
The video evidence shows that Lieutenant Jackson gave Palmer a final
order to cease his disruptive behavior, and Palmer seemed compliant. See Def.
Ex. HH1. The video evidence also reflects that Palmer had covered the entire
window of his cell door with paper which prevented staff from seeing inside
Palmer’s cell. See Def. Ex. HH2. At his deposition, Palmer acknowledged that
he had violated prison policy when he covered his cell window with paper to
thwart the officers’ efforts and block the chemical agents. See P. Depo at 3031. After the first application of chemical agents, Palmer continued his
disruptive behavior by loudly chanting. See Def. Ex. HH2. After the second
application, he continued chanting and yelling “Zulu Warrior.” Id. After the
third application, Palmer continued to chant about the Zulu nation. See id.
Other inmates joined Palmer’s lead and yelled, “Zulu, Zulu, Zulu.” Id. At his
deposition, Palmer acknowledged that he yelled to other inmates about the
Zulu nation. See P. Depo at 32-35. The FDOC issued a disciplinary report to
Palmer for participating in a disturbance. See Docs. 41-1 at 6-7; 41-3.
Case 3:19-cv-00780-MMH-MCR Document 59 Filed 09/09/21 Page 32 of 44 PageID 571
The Court first addresses Defendant Biascochea’s involvement in the
incident. To the extent Palmer intends to hold Biascochea liable based on her
position as a “Major” within the Florida Department of Corrections (FDOC),
see Response at 12 (citing Doc. 53-1 at 4), the law is well-settled that
supervisory officials are not liable under § 1983 for the unconstitutional acts
of their subordinates on the basis of respondeat superior or vicarious liability.
Next, as to Palmer’s assertion that Biascochea authorized the chemical
spraying and cell extraction, it is undisputed that FDOC Rule 33602.210(5)(c)1. provides that “[t]he warden or designee shall be consulted and
his or her written Authorization for Use of Force, Form DC6-232, must be
obtained for any organized use of force prior to the application of chemical
agents.” Fla. Admin. Code r. 33-602.210(5)(c)1. Thus, Biascochea did not have
the power to authorize the use of force. See Biascochea Decl. at 2, ¶¶ 3-4; see
also Doc. 41-9. Rather, Warden Anderson authorized the force used on May 23,
2019, as reflected in the Authorizations for Use of Force forms. See Doc. 41-9
(two applications of OC chemical agents; third application of CS chemical
agents; and cell extraction). In an incident report, Lieutenant Jackson
acknowledged that Warden Anderson had authorized the use of force. See Doc.
41-1; see also Def. Ex. HH1. On this record, no reasonable jury could conclude
that Biascochea authorized the use of chemical agents on Palmer and the cell
Case 3:19-cv-00780-MMH-MCR Document 59 Filed 09/09/21 Page 33 of 44 PageID 572
extraction. As such, Defendants’ Motion is due to be granted as to Palmer’s
Eighth Amendment claim (that Biascochea authorized the chemical spraying
and cell extraction) against Defendant Biascochea.
The parties agree that Palmer violated the FDOC rules when he covered
his cell window and caused a cellblock disturbance. See Biascochea Decl.; P.
Depo at 30. In a Declaration, Biascochea states that she authorized Palmer’s
placement on 72-hour property restriction because Palmer had used his
personal property to cover the window on his cell door which prevented staff
from seeing inside his cell, thus causing a security risk. See Biascochea Decl.
at 2. She explains that the FDOC rules “permit the restriction of an inmate’s
personal and/or state issued property when they are misused” and that “[s]uch
property restrictions are common practice.” Id. Notably, Palmer was counseled
and advised of the reason for the property restriction, and knew that it would
be temporary. See Doc. 41-11 at 1.
To state a claim that his conditions of confinement violated the Eighth
Amendment, a prisoner must allege that the defendant was deliberately
indifferent to conditions that were “sufficiently serious.” Chandler, 379 F.3d at
1288. Conditions of confinement are sufficiently serious under the Eighth
Amendment only if they are so extreme that they expose the prisoner to “an
unreasonable risk of serious damage to his future health or safety.” Id. at 1289.
Case 3:19-cv-00780-MMH-MCR Document 59 Filed 09/09/21 Page 34 of 44 PageID 573
Allegations of merely harsh conditions do not state a claim under the Eighth
Amendment. Id. Palmer’s assertions related to the 72-hour property restriction
fail to suggest that Biascochea deprived him of the “minimal civilized measure
of life’s necessities” or that the conditions of his confinement posed an
unreasonable risk of serious harm to his future health or safety. Id.; see also
Turner v. Warden, GDCP, 650 F. App’x 695, 701-02 (11th Cir. 2016); O’Connor
v. Kelley, 644 F. App’x 928, 932 (11th Cir. 2016). The property restriction and
any deprivation of hygiene items were short-lived, and Palmer’s health did not
significantly deteriorate as a result of the property restriction. See Doc. 41-11.
The Court finds that the 72-hour property restriction that Palmer endured in
S dormitory, as described by Palmer, is not the sort of extreme condition that
violates contemporary standards of decency. Nor has Palmer asserted that
Biascochea had subjective knowledge of any risk of serious harm to Palmer. As
such, Defendants’ Motion is due to be granted as to Palmer’s Eighth
Amendment claims (related to the property restriction in S dormitory) against
Additionally, Palmer asserts that Biascochea failed to report Palmer’s
PREA complaint against Hampton. According to Palmer, he told “everyone”
(including the nurse, the site counselor, the mental health counselor, and the
disciplinary hearing officers) about Hampton’s abuse towards him during the
Case 3:19-cv-00780-MMH-MCR Document 59 Filed 09/09/21 Page 35 of 44 PageID 574
cell extraction. P. Depo at 56. He testified that he told Biascochea that he had
a “criminal complaint,” but did not tell her anything else because she did not
like him and would not talk to him. Id. at 56-57. Notably, Warden Anderson
also knew about Palmer’s PREA complaint and acknowledged Palmer’s
assertions in an incident report. See Doc. 41-1 at 1. Given the record, including
that the administration was well aware of Palmer’s PREA complaint against
Hampton, Palmer’s contentions regarding Biascochea’s alleged failure to
report his generalized complaint fails to support any conclusion that she
violated a constitutional right. As such, Defendants’ Motion is due to be
granted as to Palmer’s Eighth Amendment claim against Biascochea.
Finally, Palmer asserts that Biascochea violated his Fourteenth
Amendment right to equal protection of the law. He maintains that while he
was in S dormitory, he was treated differently from other CM inmates who
were housed in U and V dormitories. He believes that CM inmates should not
have been housed in S dormitory. See SAC at 6. According to Biascochea, she
did not authorize Palmer’s assignment to S dormitory. See Biascochea Decl. at
2. Rather, the Warden assigned inmates to S dormitory, which housed CM
inmates at that time. See id. To establish a claim cognizable under the Equal
Protection Clause, an inmate must show that “(1) he is similarly situated to
other prisoners who received more favorable treatment[,] and (2) the state
Case 3:19-cv-00780-MMH-MCR Document 59 Filed 09/09/21 Page 36 of 44 PageID 575
engaged in invidious discrimination against him based on race, religion,
national origin, or some other constitutionally protected basis.” Sweet v. Sec’y,
Dep’t. of Corr., 467 F.3d 1311, 1318-19 (11th Cir. 2006) (citing Jones v. Ray,
279 F.3d 944, 946-47 (11th Cir. 2001); Damiano v. Fla. Parole and Prob.
Comm’n, 785 F.2d 929, 932-33 (11th Cir. 1986)). Taking Palmer’s assertions as
true, as the Court must, he provides no facts that Biascochea discriminated
against him on some constitutionally protected basis. As such, Defendants’
Motion is due to be granted as to Palmer’s Fourteenth Amendment equal
protection claim against Defendant Biascochea.
Next, the Court turns to Defendants Hampton, Oliver, and Bryan’s
involvement in the use of force against Palmer during the cell extraction.
Defendants assert that they are entitled to summary judgment as to Palmer’s
Eighth Amendment claims against them because they did not use any
unnecessary force against Palmer as they restrained him inside the cell. They
maintain that the video evidence supports their version of the facts that they
neither kicked nor punched him, but used only force necessary to restrain
Palmer. See Motion at 14-15. They argue that “[t]he video recording is in stark
contradiction to the type of violent encounter depicted by [Palmer].” Id. at 15.
Palmer contends that Hampton, Oliver, and Bryan are not entitled to summary
Case 3:19-cv-00780-MMH-MCR Document 59 Filed 09/09/21 Page 37 of 44 PageID 576
judgment in their favor, and that the video evidence supports his version of the
The handheld video footage captures the cell extraction team entering
Palmer’s cell and then exiting the cell less than five minutes later. See Def.
Exs. HH3; FX1 (2:25 p.m. to 2:29 p.m.). However, the Court is neither able to
see each Defendant’s specific actions during the restraint process nor Palmer’s
compliance, or lack thereof. See HH3 at 5:27-6:40. The camera operator pointed
the camera towards the ceiling (presumably because Palmer was nude), 28 and
therefore, the Court is unable to see the particular movements of the involved
parties inside the cell where Defendants worked together to restrain Palmer.
Additionally, Lieutenant Jackson oversaw Hampton, Oliver, and Bryan’s
actions, and Jackson’s physical frame obstructed the camera’s view of each
Defendant’s movements. Also, the camera operator (along with others) coughed
(presumably due to chemical agents lingering in the air), and therefore, the
Court is unable to hear some of the conversations among Jackson, Defendants,
and Palmer. Undoubtedly, there was a rapidly evolving physical confrontation
in the cell, as Defendants secured Palmer in restraints and put boxer shorts on
See Doc. 41-1 at 4 (“Once all restraints were applied, Inmate Palmer was
pinned to [the] cell floor while boxers were placed on [him] to prevent the recording
of nudity.”) (capitalization omitted).
Case 3:19-cv-00780-MMH-MCR Document 59 Filed 09/09/21 Page 38 of 44 PageID 577
him. Defendants maintain, see Motion at 17, and this Court agrees, that the
extraction team fully restrained Palmer’s hands and legs in approximately one
minute, placed boxer shorts on him, and left the cell with Palmer for an escort
to a decontamination shower where Palmer arrived at 2:31 p.m. Nevertheless,
the video footage does not capture the individual movements of each Defendant
while inside the cell. 29
While the video evidence provides a detailed chronology of how the
events generally unfolded, it fails to capture Defendants’ extraction efforts and
their specific interactions with Palmer inside the cell. Given the differences in
Palmer’s sworn recollection 30 and the contemporaneous narratives provided in
incident reports coupled with Caswell’s and Defendants’ Declarations, there
remain genuine issues of material fact as to the extent to which Palmer failed
to comply with orders, whether Defendants Hampton, Oliver, and Bryan
appropriately used force to restrain Palmer and extract him from the cell, and
Defendants rely on their Declarations when they describe what happened
while they were inside Palmer’s cell as they worked together to apply Palmer’s
restraints. See Motion at 5. Defendants also cite to the video footage at time stamps
5:26 through 6:31, see id. at 5, 15, 17, however, that portion of the recording is
inconclusive because it does not capture Defendants’ specific actions. See Def. Ex.
See P. Decl.; see also generally P. Depo.
Case 3:19-cv-00780-MMH-MCR Document 59 Filed 09/09/21 Page 39 of 44 PageID 578
whether the force used was excessive, causing Palmer’s lasting injuries. 31 As
such, Defendants’ Motion as to Palmer’s Eighth Amendment claims related to
the cell extraction against Defendants Hampton, Oliver, and Bryan is due to
B. Qualified Immunity
Defendants assert that they are entitled to qualified immunity because
they did not commit any federal statutory or constitutional violation. See
Motion at 19-20. Under the doctrine of qualified immunity, a defendant may
be protected from claims for monetary damages against him in his individual
capacity. Here, it is undisputed that Defendants were engaged in discretionary
functions during the events at issue. Thus, to defeat qualified immunity with
respect to each Defendant, Palmer must show both that the specific Defendant
committed a constitutional violation, and that the constitutional right violated
was clearly established at the time. Indeed, the Eleventh Circuit has instructed
that, in determining the applicability of qualified immunity, the Court must
“parse” the actions each Defendant undertook, and “address the evidence as it
pertains solely to” that defendant. Alcocer, 906 F.3d at 952.
The video evidence shows that Nurse Kennedy examined the back of
Palmer’s head in the V dormitory medical treatment room, and Palmer pointed to the
back of his head when the camera operator recorded him in the S dormitory cell. See
Def. Ex. HH3. Notably, Palmer did not appear to be suffering any physical hardship
when officers escorted him on a nine-minute walk from V dormitory to S dormitory.
See Def. Exs. FW5-FW7.
Case 3:19-cv-00780-MMH-MCR Document 59 Filed 09/09/21 Page 40 of 44 PageID 579
Upon review of the record and the parties’ arguments, the Court finds
that Defendant Biascochea is entitled to qualified immunity from monetary
damages in her individual capacity as to Palmer’s Eighth and Fourteenth
Amendment claims against her. However, at this summary judgment stage of
the proceedings, genuine issues of material fact preclude a finding that
Defendants Hampton, Oliver, and Bryan are entitled to the benefit of qualified
immunity as to Palmer’s Eighth Amendment claims against them. 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
Next, the Court turns to Defendants’ assertions that Palmer 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 Defendants’ acts and/or omissions. At issue is 42
U.S.C. § 1997e(e), which reads:
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....
42 U.S.C. § 1977e(e). To satisfy § 1997e(e), a prisoner must assert physical
injury that is more than de minimis. However, the injury does not need to be
Case 3:19-cv-00780-MMH-MCR Document 59 Filed 09/09/21 Page 41 of 44 PageID 580
significant. See Thompson v. Sec’y, Fla. Dep’t of Corr., 551 F. App'x 555, 557
(11th Cir. 2014) (citation omitted). Until recently, the Eleventh Circuit read
this statute to mean that “an incarcerated plaintiff cannot recover either
compensatory or punitive damages for constitutional violations unless he can
demonstrate a (more than de minimis) physical injury.” Brooks v. Warden, 800
F.3d 1295, 1307-08 (11th Cir. 2015). However, in Hoever v. Marks, 993 F.3d
1353 (11th Cir. 2021), the Eleventh Circuit reexamined § 1997e(e)’s physical
injury requirement and precisely defined its limitation on the damages a
prisoner can recover for constitutional violations. The court held and
instructed “the district court to dismiss only a request for compensation for an
alleged mental or emotional injury in the absence of an alleged physical
injury.” Id. at 1361. It reasoned that “a plaintiff – at least one alleging a
constitutional violation – need not allege a compensable injury to seek punitive
damages, so long as he plausibly alleges that the underlying misconduct was
willful or malicious.” Id.
Taking Palmer’s allegations as to his injuries as true, he asserts physical
injuries that are greater than de minimis. Palmer asserts that the back of his
head was bleeding from the blows, see SAC at 5, however, Nurse Kennedy
noted there were two hematomas that were not bleeding, see Doc. 41-8 at 26.
As relief, Palmer asks that the Court direct the FDOC to “medically remove”
Case 3:19-cv-00780-MMH-MCR Document 59 Filed 09/09/21 Page 42 of 44 PageID 581
the knot on his head. Id. Additionally, Palmer asserts that Defendant Hampton
grabbed and twisted Palmer’s genitals. See SAC at 6. According to Palmer, he
suffered pain while urinating for “close to a month” as a result of the genital
injury. See P. Depo at 60.
The Court finds that Palmer’s alleged injuries 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 a doctor or emergency room) (citing Luong v. Hatt, 979 F. Supp. 481, 486
(N.D. Tex. 1997)). Thus, Defendants’ Motion is due to be denied to the extent
that the Court finds Palmer’s request for monetary damages is not precluded
under § 1997e(e) because he alleges that he suffered physical injuries that are
plausibly greater than de minimis.
D. Plaintiff’s Newly-Asserted Claims
In his Response (Doc. 53), Palmer asserts that Defendant Hampton
threatened him, tried to force him “to drop the case,” told inmates that Palmer
was a “baby raper,” tried to coax inmates to assault Palmer, and denied Palmer
recreational activity. Response at 19-20. In support of his assertions, Palmer
submitted the Declaration of Terry Newkirk, Jr. (FDOC # A51876) who
described what he witnessed while confined with Palmer in V dormitory in
2020. See Doc. 53-2 at 8. Insofar as Palmer asserts a First Amendment
Case 3:19-cv-00780-MMH-MCR Document 59 Filed 09/09/21 Page 43 of 44 PageID 582
retaliation claim and other claims (based on events that allegedly occurred in
2020) against Defendant Hampton in his response to Defendants’ summary
judgment motion, the Court determines that raising new legal claims against
Defendant Hampton for the first time at this stage of the litigation is
impermissible. See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315
(11th Cir. 2004) (“The central issue in this case is whether a non-moving party
plaintiff may raise a new legal claim for the first time in response to the
opposing party’s summary judgment motion. We hold it cannot.”). Thus, the
Court determines that Palmer is not permitted to pursue his new claims
against Defendant Hampton in this case.
In consideration of the foregoing, it is now
Defendants’ Motion for Summary Judgment (Doc. 41) is
GRANTED as to (1) Plaintiff’s Eighth and Fourteenth Amendment claims
against Defendant Biascochea, and (2) Defendant Biascochea’s assertion of
qualified immunity as to Palmer’s Eighth and Fourteenth Amendment claims
against her. Otherwise, the Motion is DENIED. Judgment in Biascochea’s
favor will be withheld pending adjudication of the action as a whole. See Fed.
R. Civ. P. 54.
Case 3:19-cv-00780-MMH-MCR Document 59 Filed 09/09/21 Page 44 of 44 PageID 583
The parties must confer in good faith to discuss the issues and the
possibility of settlement as to Palmer’s remaining Eighth Amendment claims
for excessive use of force against Defendants Hampton, Oliver, and Bryan. No
later than October 20, 2021, 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 8th day of
LeSamuel Palmer, #L41847
Counsel of Record
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