Burgess v. Jones et al
Filing
125
ORDER granting in part and denying in part 102 Defendants' Motion for summary judgment; see order for details; referring the case to the Jacksonville Division Civil Pro Bono Appointment Program to seek counsel to represent Plaintiff at settlement conference and, if necessary, trial. Signed by Judge Brian J. Davis on 8/15/2019. (KLC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
JOHNNY BURGESS,
Plaintiff,
v.
Case No. 5:17-cv-131-Oc-39PRL
FNU ROUSE, and JONATHAN JORGE,
Defendants.
_______________________________
ORDER
I. Status
Plaintiff Johnny Burgess initiated this action on March 29,
2017,
by
filing
a
pro
se
Civil
Rights
Complaint
(Doc.
1;
Complaint). After the Court dismissed the claims against the
Secretary of the Florida Department of Corrections (FDOC) and the
prison warden, see Order (Doc. 13), two Defendants remain: Jonathan
Jorge and FNU Rouse, corrections officers at Lake Correctional
Institution (LCI). In his Complaint, Plaintiff asserts Defendants
failed to protect him from an inmate attack in violation of the
Eighth Amendment. See Complaint at 5. As relief, Plaintiff seeks
compensatory and punitive damages. Id. at 7-8.
Before the Court is Defendants’ Motion for Summary Judgment
(Doc. 102; Motion). In support of their Motion, Defendants provide
Plaintiff’s FDOC face sheet (Doc. 118-1); a provision of the
Florida Administrative Code (Doc. 118-2); an FDOC incident report
dated July 23, 2015 (Doc. 118-3; Incident Report); an investigative
report by the Inspector General’s Office (Doc. 118-4; IG Report);
Defendant Jorge’s affidavit (Doc. 118-5; Jorge Aff.); Defendant
Jorge’s responses to Plaintiff’s interrogatories (Doc. 118-6;
Jorge Interr. Resp.); the transcript of the inspector’s interview
with
Defendant
Jorge
(Doc.
118-7;
Jorge
Interview
Tr.);
the
affidavit of Defendant Rouse (Doc. 118-8; Rouse Aff.); Defendant
Rouse’s responses
to Plaintiff’s interrogatories (Doc. 118-9;
Rouse Interr. Resp.); the transcript of the inspector’s interview
with Plaintiff (Doc. 118-10; Pl. Interview Tr.); a MINS report
dated July 20, 2015 (Doc. 118-11); copies of Plaintiff’s grievances
and responses (Doc. 118-12); excerpts of Plaintiff’s deposition
transcript (Doc. 118-13; Depo. Tr.); an FDOC disciplinary report
against
Plaintiff
dated
July
23,
2015
(Doc.
118-14);
and
Plaintiff’s medical records (Doc. 118-15; Med. Records).
Plaintiff responded to the Motion (Doc. 108; Response), with
exhibits, most of which are duplicative of evidence Defendants
offer, including his deposition transcript, Defendants’ responses
to his interrogatories, and his medical records. See Response at
12-13 (Plaintiff’s index of exhibits).1 Plaintiff also offers his
own affidavits, the affidavits of two other inmates, multiple sick-
Plaintiff’s exhibits are appended to his Response (Doc. 108). As
with all documents referenced in this Order, the Court will cite
the exhibits according to the page number assigned by the Court’s
electronic case management system.
1
2
call
request
forms
he
submitted
following
the
incident,
and
provisions of the Florida Administrative Code. Id.
With leave of Court, see Order (Doc. 112), Defendants replied
(Doc. 119; Reply). Accordingly, the Motion is ripe for this Court’s
review.
II. Summary Judgment Standard
Under Rule 56, “[t]he court shall grant summary judgment if
the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). An issue is genuine when the
evidence is such that a reasonable jury could return a verdict in
favor of the nonmovant. Mize v. Jefferson City Bd. of Educ., 93
F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville
Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A] mere
scintilla
of
evidence
in
support
of
the
non-moving
party’s
position is insufficient to defeat a motion for summary judgment.”
Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243,
1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986)).
The party seeking summary judgment bears the initial burden
of demonstrating to the court, by reference to the record, that
there are no genuine issues of material fact to be determined at
trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th
Cir. 1991). The record to be considered on a motion for summary
3
judgment
stored
may
include
information,
(including
those
“depositions,
affidavits
made
for
or
documents,
electronically
declarations,
purposes
of
the
stipulations
motion
only),
admissions, interrogatory answers, or other materials.” Rule
56(c)(1)(A).
“When a moving party has discharged its burden, the nonmoving party must then go beyond the pleadings, and by its own
affidavits, or by depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there
is a genuine issue for trial.” Jeffery v. Sarasota White Sox,
Inc., 64 F.3d 590, 593–94 (11th Cir. 1995) (internal citations
and quotation marks omitted).
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)).
4
III. Plaintiff’s Allegations2
In
his
Complaint,
Plaintiff
alleges
Defendant
Jorge
orchestrated a plan to have another inmate attempt to kill him.
See Complaint at 6. The incident occurred on July 23, 2015, in the
mental health unit at LCI. Id. at 5. While Plaintiff was attending
a
mental
health
“group”
session,
another
inmate,
Martavius
Henderson, stabbed Plaintiff with a shank/knife (“weapon”) (“the
stabbing incident”). Id. at 5, 6. Plaintiff states he told both
Defendants that Henderson had a weapon and would kill Plaintiff if
the two inmates were “allowed in the group room” together Id. at
5.
In his first of two affidavits, Plaintiff avers he had been
in fear of Henderson since Henderson attacked him the week before
the stabbing incident (“the first incident”). See Response at 15.
On the morning of the stabbing incident, inmate Henderson, from
his
cell,
showed
Plaintiff
he
had
a
weapon,
and
Henderson
threatened to kill Plaintiff with it. Id. At that time, Defendant
Jorge and the mental health official were on the wing to determine
Because this case is before the Court on Defendants’ Motion for
Summary Judgment, the Court must credit Plaintiff’s version of
events. Plaintiff’s allegations are drawn from his verified
Complaint and the evidence he offers in Response to the Motion.
The factual assertions in Plaintiff’s Complaint, which is verified
under penalty of perjury, satisfy “Rule 56’s requirements for
affidavits and sworn declarations,” and are therefore given the
same weight as factual statements made in an affidavit. See
Stallworth v. Tyson, 578 F. App’x 948, 950 (11th Cir. 2014).
2
5
which inmates wanted to participate in group. Plaintiff claims he
got Defendant Jorge’s attention and “informed him that inmate
Henderson had a [weapon] that he’d try to kill [Plaintiff] with”
if the two were placed together in group. Id. at 15-16. Plaintiff
tried to discreetly inform Defendant Jorge of his fear because
Henderson’s cell was nearby: Plaintiff says he whispered the
warning to Defendant Jorge and held up a piece of paper that said,
“HE’S GOT A KNIFE!” Id. at 15, 16. Plaintiff avers Defendant Jorge
ignored his worries because Plaintiff and Jorge had prior “problems
and disputes,” and Plaintiff had recently filed a grievance against
Jorge, which was reported to the Inspector General’s Office for
investigation. Id. at 16.
Plaintiff was brought to the group room before Henderson. Id.
Plaintiff informed Defendant Rouse, who was in the group room with
him, that Henderson had a weapon and would try to kill Plaintiff
with it. Plaintiff avers Defendant Rouse laughed his warning off
as a joke.3 Defendant Rouse also stated to Plaintiff, “no ones
In his Complaint, Plaintiff asserts Defendants either planned the
attack or permitted it to occur in retaliation for Plaintiff
getting feces on them during cell extractions. Complaint at 6.
Defendants deny these allegations. Defendant Jorge states he wore
cell extraction suits when dealing with Plaintiff, see Jorge
Interr. Resp. ¶ 22, and Defendant Rouse denied having been involved
in any cell extractions with Plaintiff, see Rouse Interr. Resp. ¶¶
21, 22. Plaintiff does not assert a First Amendment retaliation
claim against Defendants. His only claim is a failure-to-protect
under the Eighth Amendment. As such, the Court limits its factual
summary to legally relevant facts.
3
6
[sic] got a knife. And we wont [sic] let no one kill you.” Id.
According to Plaintiff, Defendant Jorge extracted Henderson from
his cell. Id. From the group room, Plaintiff observed Defendant
Jorge talking to Henderson and noticed that Jorge failed to search
Henderson before escorting him to the group room. Id.
Plaintiff
describes
the
following
occurred
as
Henderson
entered the group room: “By the time inmate Henderson walked
through the threshold of the group room door, he was pulling his
hand back up out of his pants with the [weapon] in his hand.” Id.
Upon seeing the weapon, Plaintiff shouted, “he’s got a knife,” and
he rushed towards Henderson to protect himself from being stabbed.
Id.
at
16-17.
Defendant
Jorge
grabbed
Plaintiff,
affording
Henderson an opportunity to stab Plaintiff. Id. at 17.
Plaintiff
offers
the
affidavits
of
two
inmates,
Morilus
Ronald and Lane Trimanye, who were housed on the mental health
wing with him and Henderson. Inmate Ronald avers he witnessed
Plaintiff “tell [Defendant] Jorge that Henderson had a [weapon],”
but Defendant Jorge ignored Plaintiff. Id. at 21. Ronald further
states Plaintiff tried to inform Defendant Rouse about the threat,
but Defendant Rouse also ignored him. Id. Ronald explains what
happened when Defendant Jorge escorted Henderson into the group
room: “[Defendant] Jorge let Henderson rushing [sic] [Plaintiff]
and stabbed [Plaintiff].” Id.
7
Inmate Trimanye avers he was housed on the mental health wing
with Plaintiff and Henderson on the day of the first incident. Id.
at 23, 24. Trimanye avers Defendant Rouse “served and investigated”
a
disciplinary
report
against
Henderson
following
the
first
incident. Id. at 23. Trimanye characterizes the first incident as
“the talk of the mental health unit.” Id. After the first incident,
Trimanye was moved to another wing of the prison. Id. at 24.
However, he says he later “heard of staff allowing Henderson into
the [mental health] group with a weapon,” which resulted in
Plaintiff’s stabbing. According to Trimanye, the mental health
official overheard Plaintiff warn Defendant Rouse of Henderson’s
threat and possession of a weapon. Id. The mental health official
told Trimanye he did not report what he overheard because he was
scared to lose his job. Id.
Trimanye,
in
a
second
affidavit,
explains
he
was
later
transferred to two different correctional institutions along with
Henderson. Id. at 27. He avers the following:
Henderson bragged . . . about how he had almost
killed [Plaintiff] and gotten away with it …
because officers did not like [Plaintiff] so
they covered up the evidence… [P]lus Henderson
bragged about how [Plaintiff] had snitched and
forewarned officers Jorge and Rouse that he
had a knife but they wouldn’t listen to him ….
Henderson stated that he consulted with
officer Jorge to leave his handcuffs on 1
click so that he could easily slide his hands
out of the handcuffs and jump on [Plaintiff]
and officer Jorge agreed.
8
Id. at 27-28. Henderson also stated, however, Defendant Jorge did
not know Henderson had a weapon; Defendant Jorge “only wanted
Henderson to jump on [Plaintiff,] not stab him.” Id. at 28.
IV. Summary of the Arguments
In
their
Motion,
Defendants
argue
there
is
no
evidence
demonstrating they were deliberately indifferent to a serious risk
of harm, they are entitled to qualified immunity, and Plaintiff
cannot recover compensatory or punitive damages under 42 U.S.C. §
1997e(e). See Motion at 13, 16, 17. Additionally, Defendants assert
Eleventh Amendment protects them from damages in their official
capacities. Id. at 15.
Defendants argue there is no evidence they knew of the first
incident between inmate Henderson, and Plaintiff initiated the
stabbing
incident,
thus
causing
his
own
injury.
Id.
at
13.
Defendants state, “[t]here is no evidence to support Plaintiff’s
assertion that [they] knew ahead of time that Inmate Henderson
intended to attack Plaintiff.” Id. In their Reply, Defendants
contend Plaintiff “can show no evidence” they knew Henderson posed
a threat of harm to Plaintiff. Reply at 3. They reason, “Defendants
did not place Plaintiff in any vulnerable position or at risk
because Plaintiff himself initiated the attack.” Id.
Defendants rely in part upon internal FDOC records and their
own statements. In the incident report, the reporting employee
recorded, “[Defendant] Jorge informed me during this group session
9
[Plaintiff] . . . stood up out of his chair and charged at Inmate
Henderson . . . . [who] stabbed [Plaintiff] in the neck with a
homemade knife.” Incident Report at 1. Defendants aver in their
affidavits that they saw Plaintiff rush at Henderson. Defendant
Jorge states, Plaintiff “aburuptly jumped out of his chair and
charged Henderson.” Jorge Aff. at 4. According to Defendant Rouse,
“[P]laintiff stood up and charged at Inmate Henderson and attempted
to fight him.” Rouse Aff. at 3.
Defendants also rely upon Plaintiff’s deposition testimony
and his statements to the inspector who investigated the incident
on behalf of the Inspector General’s Office. In his deposition,
Plaintiff testified he “rushed” at Henderson when Henderson walked
into the group room. Depo. Tr. at 6. Plaintiff told the inspector
he knew Henderson had a weapon but “still had an altercation with
him.” Pl. Interview Tr. at 5. Additionally, Plaintiff informed the
inspector he (Plaintiff) told Henderson to bring the weapon with
him to group because Plaintiff wanted the officers to catch
Henderson with it. Id. at 6. The inspector referred the matter to
the State Attorney’s Office. IG Report at 12. The State Attorney’s
Office
declined
to
prosecute
Henderson,
stating
“the
victim
[Plaintiff] was the individual who instigated the fight in a rather
calculated way to get the suspect [Henderson] in trouble.” Id. at
14.
10
Defendants explain in their affidavits the process for moving
inmates from their cells to the group room. On the day in question,
Rouse strip-searched Plaintiff and escorted him to the group room.
See Rouse Aff. at 2. Defendant Jorge avers he strip-searched
Henderson and brought him to the group room after Plaintiff was
already there. See Jorge Aff. at 3-4. See also Jorge Interr. Resp.
¶ 24 (stating Defendant Jorge searched Inmate Henderson “prior to
pulling him out for group”). Defendants deny any recollection or
knowledge of the first incident between Plaintiff and Henderson.
See Jorge Aff. at 1-2; Rouse Aff. at 3; Jorge Interr. Resp. ¶ 10;
Rouse Interr. Resp. ¶ 10. However, neither Defendant directly
disputes Plaintiff informed them, prior to the stabbing incident,
that Henderson had a weapon and planned to harm Plaintiff during
group. See Jorge Aff. at 3-4; Rouse Aff. at 3.
In response to the Motion, Plaintiff asserts he did not
instigate the stabbing incident. He acknowledges he told the
inspector
and
testified
during
deposition
that
he
rushed
at
Henderson. But he explains he did so to protect himself because he
realized Defendants were not going to do so. See Pl. Interview Tr.
at 5; Depo. Tr. at 6. During the interview with the inspector,
Plaintiff admitted he had the altercation with Henderson knowing
Henderson had a weapon, but he explained why:
I told the [prison guards] – before I came out
because I knew [Henderson] had [the weapon].
I knew he was gonna brang [sic] it. So what I
11
did was I try to set him up. I told him make
sure he brang [sic] it at the group with him.
So when I came out, I told the police [prison
guards] so they can catch him with it. But .
. .
Officer Jorge . . . me and him had a
problem . . . . I tried to tell him, I said,
“Man, dude got a knife, you know what I’m
saying, he gonna try to do something to me,”
but he – I don’t know. He overlooked it.
Then I told the officer in the group home
. . . but he was saying something about don’t
worry about it, he ain’t gonna let nothing
happen. Ain’t gonna be a fight. They gonna
break it up regardless, so.
Pl. Interview Tr. at 5-6.
In his deposition, Plaintiff testified he “rushed” at inmate
Henderson because he believed the guards were not going to protect
him even though he told them inmate Henderson was planning to bring
a weapon to group. See Depo. Tr. at 6, 8. He elaborated that he
told the guards Henderson had a weapon and that the two of them
had a prior altercation, but “[the guards] let [Henderson] out of
his cell with th[e] [weapon].” Id. at 9.
Plaintiff agreed he was “trying to set up Henderson,” but he
disagreed with the characterization of him as the “instigator,”
saying he “was trying to get [the guards] to disarm [Henderson].”
Id. at 8. Plaintiff testified as follows:
I told the [guard] when [Henderson] showed
[the weapon] to me, I told him before they
pulled me in group. That’s when I found out
that morning, so I was like, Man, he got the
shank, hoping they go search him and take the
shank from him, but they just – that’s how I
thought it was going to turn out. . . . Usually
12
. . . if an inmate say that, especially in
that type of environment, because it’s a
mental health treatment facility, so it’s kind
of treated – it’s like different from
everywhere else, so like you tell the officer,
Man, that inmate got a knife, they going to
search him down or something, but they just
ignored it . . . .
Id. Plaintiff explains he believed if he told the prison guards
Henderson had a weapon, they would search Henderson and confiscate
the weapon, thereby protecting Plaintiff from the planned attack.
Id.
Legal Analysis & Conclusions of Law
A. Eleventh Amendment Immunity
Defendants assert they are entitled to Eleventh Amendment
immunity as to any claims against them for damages in their
official capacities. See Motion at 15. Plaintiff does not address
this argument. See Response. When a plaintiff sues a state actor
in his official capacity, “the action is in essence one for the
recovery of money from the state.” Zatler v. Wainwright, 802 F.2d
397, 400 (11th Cir. 1986). As such, “the state is the real,
substantial party in interest and is entitled to invoke its
sovereign immunity from suit even though individual officials are
nominal defendants.” Id. (finding the FDOC Secretary was immune
from suit in his official capacity).
Defendants are entitled to Eleventh Amendment immunity as to
any claim against them for monetary damages in their official
13
capacities. To that extent,
Defendants’
motion is
due to be
granted.
B. Qualified Immunity
An officer sued in his individual capacity “is entitled to
qualified
immunity
for
his
discretionary
actions
unless
he
violated ‘clearly established statutory or constitutional rights
of
which
a
reasonable
person
would
have
known.’”
Black
v.
Wigington, 811 F.3d 1259, 1266 (11th Cir. 2016) (quoting Case v.
Eslinger, 555 F.3d 1317, 1325 (11th Cir. 2009)). Qualified immunity
allows officers to exercise their official duties without fear of
facing personal liability. Alcocer v. Mills, 906 F.3d 944, 951
(11th Cir. 2018). The doctrine protects all but the plainly
incompetent
or
those
who
knowingly
violate
an
inmate’s
constitutional rights. Id.
Upon asserting a qualified immunity defense, a defendant
bears the initial burden to demonstrate he was acting in his
discretionary authority at the relevant times. Dukes v. Deaton,
852 F.3d 1035, 1041-42 (11th Cir.), cert. denied, 138 S. Ct. 72
(2017). For purposes of this motion, the Court accepts Defendants’
assertions
that
they
were
acting
within
the
scope
of
their
discretionary duties at the time of the stabbing incident. See
Motion at 16.4 As such, the burden shifts to Plaintiff. To overcome
Plaintiff’s assertion that Defendant Jorge was complicit in a
plan to harm Plaintiff suggests Jorge was not acting in the scope
4
14
a qualified-immunity defense, a plaintiff must demonstrate two
elements: the defendant’s conduct caused plaintiff to suffer a
constitutional violation, and the constitutional violation was
“clearly
established”
Alcocer,
906
F.3d
at
at
the
951.
time
of
Plaintiff
the
alleged
alleges
violation.
Defendants
were
deliberately indifferent to a known risk of serious harm in
violation of the Eighth Amendment.
The Court will set forth
relevant Eighth Amendment principles and then address whether
Plaintiff’s allegations overcome Defendants’ qualified-immunity
defense.
i. Eighth Amendment Deliberate Indifference
Prison officials are not constitutionally liable for every
inmate-on-inmate attack. Farmer v. Brennan, 511 U.S. 825, 832
(1994). However, the Eighth Amendment requires prison officials to
“take reasonable measures to guarantee the safety of the inmates.”
Id. Although inmate-on-inmate attacks are not per se suggestive of
a constitutional violation, inmates have a constitutional right to
be protected from “physical assault[s] by other inmates.” Zatler,
802 F.2d at 400. Prison officials may be liable under the Eighth
Amendment if they are deliberately indifferent to a known, serious
risk of harm to a specific inmate; mere negligence does not offend
constitutional principles. Farmer, 511 U.S. at 828, 838.
of his discretionary duties; however, Plaintiff does not directly
address this contention in his Response.
15
Thus, to establish an Eighth Amendment violation, an inmate
must show a prison official “actually (subjectively) knows that an
inmate is facing a substantial risk of serious harm, yet disregards
that known risk by failing to respond to it in an (objectively)
reasonable manner.” Rodriguez v. Sec’y for Dep’t of Corr., 508
F.3d 611, 617 (11th Cir. 2007) (citing Farmer, 511 U.S. at 837,
844). A prison official subjectively knows of a risk of harm to an
inmate when he “disregards an excessive risk to [the] inmate’s
health or safety.” Farmer, 511 U.S. at 837. “The known risk of
injury
must
possibility’
be
a
before
‘strong
a
likelihood,
guard’s
failure
rather
to
act
than
can
a
mere
constitute
deliberate indifference.” Brown v. Hughes, 894 F. 2d 1533, 1537
(11th Cir. 1990). “Whether a prison official had the requisite
knowledge of a substantial risk is a question of fact subject to
demonstration in the usual ways, including inference from the
circumstantial evidence.” Rodriguez, 508 F.3d at 617 (emphasis in
original) (quoting Farmer, 511 U.S. at 843).
Furthermore, “an Eighth Amendment claimant
need not show that a prison official acted or
failed to act believing that harm actually
would befall an inmate; it is enough that the
official acted or failed to act despite his
knowledge of a substantial risk of serious
harm.” Thus, a jury need not infer that the
defendants intended that [the aggressorinmate] harm [the plaintiff] or that they
actually believed that [the aggressor-inmate]
would harm [the plaintiff]. It is enough that
a jury be able to infer from the evidence that
the defendants actually knew of a substantial
16
risk
that
[the
aggressor-inmate]
seriously harm [the plaintiff].
would
Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1102 (11th Cir.
2014) (internal citations omitted) (emphasis in original).
Generally,
where
a
plaintiff
presents
evidence
that
he
reported to the defendants only a vague, generalized fear of harm,
summary judgment may be appropriate. See, e.g., Carter v. Galloway,
352 F.3d 1346, 1349 (11th Cir. 2003). For example, in Carter, the
court held the plaintiff presented no evidence “of a particularized
threat or fear” because he did not tell the defendants he feared
his cellmate or his cellmate had directly threatened him, and he
did not request protection. Id. at 1348, 1350. The plaintiff only
demonstrated prison officials knew his cellmate was a “problem
inmate,” had been roaming the cell like a “caged animal,” intended
to fake a hanging, and told the plaintiff he (the plaintiff) would
help fake the hanging “one way or another.” Id. at 1348. See also
Losey v. Thompson, 596 F. App’x 783, 789 (11th Cir. 2015) (holding
no Eighth Amendment violation because the plaintiff did not allege
a prior attack by the aggressor-inmate, and the plaintiff did not
state he notified any officer or the defendant that he was in
danger).
On the other hand, where a plaintiff presents evidence of a
particularized,
well-founded
fear,
summary
judgment
is
not
warranted. Rodriguez, 508 F.3d at 619; Caldwell, 748 F.3d at 1102.
17
In Rodriguez, the court vacated summary judgment in the defendant’s
favor because the parties disputed material facts: whether the
plaintiff informed the defendant he feared his life was in danger
and he needed protection or transfer. 508 F.3d at 619. In a
declaration, the plaintiff averred he orally reported the threat
to the defendant at least twice, and he submitted an inmate request
form stating he needed protection. Id. at 618-19. The defendant,
however, denied having had “security-related conversations” with
the plaintiff and having knowledge of the plaintiff’s grievance.
Id. at 619. See also Caldwell, 748 F.3d at 1101 (finding a jury
reasonably could infer the defendants had subjective knowledge of
a risk of harm where the plaintiff expressed he feared his cellmate
and the fear was “well-founded” because the cellmate set fire to
the cell earlier in the day).
ii. Plaintiff’s Reports of a Threat of Harm
To overcome Defendants’ assertion of qualified immunity,
Plaintiff must demonstrate at least a genuine issue of material
fact as to whether Defendants were deliberately indifferent to a
known risk of serious harm. “Because § 1983 ‘requires proof of an
affirmative
causal
omissions
and
defendant
is
the
connection
alleged
entitled
to
between
the
constitutional
an
independent
official’s
acts
deprivation,’
or
each
qualified-immunity
analysis as it relates to his or her actions and omissions.” Id.
18
(quoting Zatler, 802 F.2d at 401). As such, the Court will analyze
Plaintiff’s allegations against each Defendant.
As
to
Defendant
Jorge,
Plaintiff
tells
the
following
narrative, which this Court must accept as true. On the morning of
group, Defendant Jorge was present on the wing in his role as
“administrative officer,” whose duties were to “be the security
and
supervising
staff
for
the
counsellors,
psychologists
and
psychiatrists.” See Jorge Aff. at 2. Plaintiff’s cell on the mental
health wing was close to Henderson’s cell. Pl. Response at 15.
While in their cells, Henderson threatened Plaintiff and showed
Plaintiff a weapon he planned to use to carry out his threat. Id.
Out of fear, Plaintiff informed Defendant Jorge about Henderson’s
threat, whispering a warning to Jorge and holding up a sign saying
Henderson had a weapon. Id. at 15, 16. Plaintiff reported the
threat to Defendant Jorge believing Jorge knew about the first
incident
between
him
and
Henderson.
The
first
incident
was
described as “the talk of the mental health unit.” Pl. Response at
23.
Plaintiff hoped Defendant Jorge would discover Henderson’s
weapon and confiscate it so inmate Henderson could not carry out
his threat. See Pl. Interview Tr. at 5-6; Depo. Tr. at 8. After
Plaintiff was placed in the group room, he observed Defendant Jorge
pull Henderson from his cell. Defendant Jorge did not strip-search
Henderson,
see
Pl.
Response
at
19
16,
and
fastened
Henderson’s
handcuffs loosely, allowing Henderson to easily slide his hands
out, id. at 27. When Henderson entered the group room, Plaintiff
saw Henderson pulling the weapon out of his pants. Plaintiff,
seeing that Defendant Jorge was not going to prevent the attack,
rushed Henderson, attempting to prevent Henderson from stabbing
him. Pl. Interview Tr. at 5; Depo. Tr. at 6, 8.
As to Defendant Rouse, Plaintiff explains the following:
Defendant Rouse escorted Plaintiff to the group room. See Pl.
Response at 16. There, Plaintiff informed Defendant Rouse that
Henderson had a weapon and would try to kill Plaintiff. Id.
Defendant Rouse laughed and told Plaintiff no one had a knife. Id.
Inmate Trimanye, in his affidavit, confirms Plaintiff reported a
threat of harm to Defendant Rouse; Trimanye avers the mental health
official who was present in the group room overheard Plaintiff
inform Rouse that Henderson had a weapon. Id. at 24. Plaintiff
also alleges Defendant Rouse was aware of the first incident
between him and Henderson because Rouse served and investigated
the
disciplinary
report
against
Henderson.
Complaint
at
6;
Response at 23.5
Defendant Rouse acknowledges his “primary function was to process
and serve inmate disciplinary reports,” though he does not recall
“any previous disciplinary reports referencing both Henderson and
[Plaintiff].” Rouse Aff. at 2. He also states in response to
Plaintiff’s interrogatories that he does not recall serving
Henderson a disciplinary report following the first incident.
Rouse Interr. Resp. ¶ 24. Defendants provide a copy of the incident
report for the first incident (Doc. 118-11), but they do not
5
20
Accepting Plaintiff’s allegations as true and construing all
reasonable inferences in his favor, Plaintiff describes a classic
Eighth
Amendment
violation.
See
Rodriguez,
508
F.3d
at
619;
Caldwell, 748 F.3d at 1102. Plaintiff alleges he warned Defendants
Henderson had a weapon and planned to use the weapon to harm or
kill him during group. Plaintiff also alleges Defendants knew about
the first incident in which Henderson tried to attack Plaintiff.
Plaintiff’s allegations, if true, demonstrate Defendants “actually
knew of a substantial risk that [Henderson] would seriously harm
[Plaintiff].” See Caldwell, 748 F.3d at 1102.
The threat of harm Plaintiff reported to Defendants was not
vague or conclusory but specific, providing the who, what, when,
where, and how. See Rodriguez, 508 F.3d at 619; Caldwell, 748 F.3d
at 1102. See also Sears v. Roberts, 922 F.3d 1199, 1208 (11th Cir.
2019) (concluding the plaintiff’s allegations were not conclusory,
but described “specific, discrete facts of the who, what, when,
and where variety”) (quoting Feliciano v. City of Miami Bch., 707
F.3d 1244, 1253 (11th Cir. 2013)).
Plaintiff told Defendants of a “well-founded,” particularized
fear. He reported another inmate threatened his life (the “what”),
identified the source of the threat (the “who”), stated the threat
would occur in the group room that morning (the “where” and
provide a copy of the disciplinary report. Accordingly, whether
Defendant Rouse knew of the first incident is a factual dispute.
21
“when”), and identified the weapon that would be used (the “how”).
As such, this case is factually inapposite from the sole persuasive
authority on which Defendants rely. See Anderson v. Darden, No.
5:07-cv-208 (CAR), 2008 WL 4376824 (M.D. Ga. Sept. 25, 2008)
(granting summary judgment because the plaintiff instigated the
fight, there was no record of trouble between the two inmates, and
the plaintiff reported only a vague fear, saying he was afraid he
would be “jumped” by unnamed inmates).
Defendants ask the Court to discount the affidavits Plaintiff
offers, saying they constitute inadmissible hearsay. See Motion at
14.
Defendants’
unexplained
conclusion
that
the
affidavits
constitute inadmissible hearsay is unpersuasive. A party opposing
summary judgment may rely upon affidavits or sworn pleadings if
made on personal knowledge and based on facts that may be reduced
to admissible evidence for trial. Fed. R. Civ. P. 56(c)(1), (4).
Defendants do not dispute the facts contained in Plaintiff’s
affidavits and the inmate-witness affidavits are based on personal
knowledge or can be reduced to admissible form for trial. See
Motion at 14. As such, Plaintiff’s affidavits and those of his
inmate-witnesses constitute evidence for purposes of
opposing
summary judgment, and the Court must consider them.
Defendants also ask the Court to accept as a fact that
Plaintiff “instigated” the fight with Henderson and therefore
caused his own injury. See Motion at 15. They contend Plaintiff’s
22
evidence does not support his “claims, given that Plaintiff has
admitted to charging Inmate Henderson and initiating the fight.”
Id. at 14. They also rely on the Inspector General’s report, in
which the inspector noted the State Attorney’s Office labeled
Plaintiff the “instigator” of the fight. Id. at 13.
Significantly,
Plaintiff
denies
having
instigated
the
stabbing incident. See Response at 53-55; Depo. Tr. at 9. He does
concede he rushed at Henderson, but he also explains did so because
he believed Defendants were not going to protect him even though
he told them Henderson was planning to bring a weapon to group.
See Depo. Tr. at 6. Plaintiff testified he charged at Henderson
“out of protection.” Id. at 8. See also Pl. Interview Tr. at 4, 5.
Moreover, the Court is not obliged to accept as a fact the
State Attorney’s Office’s conclusion, based on the inspector’s
report, that Plaintiff was the “instigator” of the altercation.
The
purpose
of
the
Inspector
General’s
investigation
was
to
determine whether Henderson committed a crime, not to resolve
whether Plaintiff’s constitutional rights were violated. See IG
Report at 9. And in his written report, upon which the State
Attorney’s Office based its conclusion, the inspector omitted
reference to Plaintiff’s explanation for rushing at Henderson and
that Plaintiff warned Defendants before the stabbing incident of
Henderson’s threat. See IG Report at 12, 17-18; Pl. Interview Tr.
at 5-6. In ruling Defendants’ Motion, this Court must accept
23
Plaintiff’s allegations as true, and Plaintiff avers he rushed
Henderson because he knew Henderson had a weapon, he watched
Defendant Jorge pull Henderson from his cell without conducting a
strip-search, and Henderson pulled the weapon from his waistband
as
he
entered
the
group
room.
These
facts
are
material
to
Plaintiff’s Eighth Amendment claim, and the Court may not overlook
them.
While Plaintiff admits he rushed Henderson, the evidence,
considered in totality and viewed in the light most favorable to
Plaintiff, does not demonstrate as a matter of law that Plaintiff
was the “instigator” or that he caused his own injury. On the
contrary, a reasonable jury could conclude instead that Henderson,
not Plaintiff, “instigated” the fight when, before group, he
brandished the weapon and threatened Plaintiff with it, and when
Henderson appeared intent on following through on that threat by
pulling the weapon from his waistband as he entered the group room.
A reasonable jury also could conclude Defendant Jorge did not
search Henderson and loosened Henderson’s cuffs knowing Henderson
planned to attack Plaintiff. As Plaintiff explains in his second
affidavit,
“If
Defendant
Jorge
would
have
searched
Inmate
Henderson as he [claims to have done] then it would have been
impossible for Inmate Henderson to exit his cell possessing a knife
unless
[D]efendant
Jorge
knowingly
24
and
willingly
permitted
Henderson to exit his cell possessing a knife.” Pl. Response at
52.
To the extent Defendants suggest the Court should accept their
testimonies as more credible than Plaintiff’s allegations, it is
not the province of this Court to make credibility determinations
on a motion for summary judgment. See Furcron v. Mail Centers Plus,
LLC, 843 F.3d 1295, 1304 (11th Cir. 2016) (“[T]he Court may not
weigh conflicting evidence or make credibility determinations of
its own.”) (internal quotation marks omitted); Hall v. Bennett,
447 F. App’x 921, 924 (11th Cir. 2011) (reversing the district
court’s grant of summary judgment because the court improperly
“weighed the witnesses’ credibility by favoring” the officer’s
account over the prisoner-plaintiff’s).
Plaintiff satisfies his burden on qualified immunity. He
alleges facts that, if true, demonstrate an Eighth Amendment
violation, and the nature of the violation was clearly established
at the time of the stabbing incident. See, e.g., Caldwell, 748
F.3d at 1102 (“[T]his Court already clarified that a prison guard
violates a prisoner's Eighth Amendment right when that guard
actually (objectively and subjectively) knows that one prisoner
poses a substantial risk of serious harm to another, yet fails to
take
any
action
to
investigate,
mitigate,
or
monitor
that
substantial risk of serious harm.”). Accordingly, Defendants are
not entitled to qualified immunity on summary judgment.
25
C. Damages Available Under 42 U.S.C. § 1997e(e)
The Prison Litigation Reform Act (PLRA) requires a plaintiff
seeking
damages
to
demonstrate
the
alleged
constitutional
violation caused a physical injury. 42 U.S.C. § 1997e(e) (“No
Federal civil action may be brought by a prisoner confined in a
jail,
prison,
or
other
correctional
facility,
for
mental
or
emotional injury suffered while in custody without a prior showing
of physical injury.”).
The PLRA does not define “physical injury.” The Eleventh
Circuit has explained a physical injury is one that is not simply
de minimis, though it “need not be significant.” Dixon v. Toole,
225 F. App’x 797, 799 (11th Cir. 2007) (per curiam) (citing Harris
v. Garner, 190 F.3d 1279, 1286 (11th Cir. 1999)). Bruising and
scrapes fall into the category of de minimis injuries. Id. Accord
Mann v. McNeil, 360 F. App’x 31, 32 (11th Cir. 2010) (holding vague
back injuries and scrapes amounted to de minimis injuries).
It is difficult to fathom describing any stabbing as a de
minimis
injury,
even
if
the
victim
is
lucky
enough
to
have
survived. Here, Plaintiff sustained more than a vague injury or a
minor scrape. Henderson stabbed Plaintiff with a “rod” estimated
to be 7.8 cm in length. See Med. Records at 1. As shown in the
picture Defendants provide, the rod punctured Plaintiff’s skin and
was embedded in his neck/shoulder area. See Incident Report at 2.
Plaintiff avers the rod was embedded in his neck for three hours
26
before it was removed. See Response at 52. Prior to removing the
rod from his neck, the prison doctor ordered x-rays to ensure it
had not caused internal damage. See Med. Records at 1, 3.
Under Defendants’ own proffered definition of a “physical
injury,” Plaintiff’s injury is more than de minimis. According to
Defendants, “[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.” Motion at 18 (quoting Luong v. Hatt,
979 F. Supp. 481, 486 (N.D. Tex. 1997)). Plaintiff received
immediate medical attention after being stabbed. See Med. Records
at 4-5. He suffered more than a sore muscle, a bruise, or a scratch.
Moreover, Plaintiff submitted multiple sick-call requests seeking
additional treatment in the months following the injury. See
Response at 41, 44, 45, 47, 48, 49, 50. Upon review of the evidence,
the
Court
is
not
convinced
that
simply
because
the
rod
was
successfully removed and the wound healed well, Plaintiff’s injury
constitutes a de minimis one.
As such, Defendants’ motion is due to be denied to the extent
they
argue
Plaintiff’s
request
for
compensatory
and
punitive
damages is barred under the PLRA.
VI. Appointment of Counsel
This Court has broad discretion in determining whether the
appointment of counsel is appropriate. Under these circumstances
27
and at this point in the proceedings, the Court finds Plaintiff is
entitled to the assistance of a trained practitioner. Defendants
are represented by counsel and demand a jury trial, and there are
sufficiently complex factual and constitutional issues involved in
this litigation. Plaintiff will require assistance of counsel at
a settlement conference and, if the case does not settle, at
pretrial conference and trial. Therefore, the Court will refer
this case to the Jacksonville Division Civil Pro Bono Appointment
Program.
Accordingly, it is
ORDERED:
1.
Defendants’ Motion for Summary Judgment (Doc. 102) is
GRANTED in part and DENIED in part. The Motion is GRANTED to the
extent Defendants are entitled to Eleventh Amendment immunity as
to
any
requests
for
damages
against
them
in
their
official
capacities. In all other respects, the Motion is DENIED.
2.
This case is referred to the Jacksonville Division Civil
Pro Bono Appointment Program so the designated deputy clerk of
the Court may seek counsel to represent Plaintiff.
DONE AND ORDERED at Jacksonville, Florida, this 15th day of
August, 2019.
28
Jax-6
c:
Johnny Burgess
Counsel of Record
29
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