MENGESHA v. STOKES et al

Filing 55

ORDER & REPORT AND RECOMMENDATION. Order granting 46 Motion for Extension of Time to Amend. The clerk is directed to post the amended complaint separately. REPORT AND RECOMMENDATION - It is recommended 39 Motion for Summary Judgment is granting in part and denying in part. Signed by MAGISTRATE JUDGE GARY R JONES on 11/22/17. (bkp)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
KIDANE B. MENGESHA,
Plaintiff,
v.

CASE NO. 3:16-cv-446-MCR-GRJ

MARCUS J. STOKES, et al.,
Defendants.
________________________/
ORDER & REPORT AND RECOMMENDATION
This matter is before the Court on ECF No. 39, Defendants’ Motion
for Summary Judgment,1 and ECF No. 46, Plaintiff’s Motion for Leave to
File an Amended Complaint. Plaintiff has filed a response in opposition to
Defendants’ motion for summary judgment. (ECF No. 53.)2 Defendants,
1

Defendants Jones, Pugh, Stokes, and West originally filed the motion for
summary judgment. (ECF No. 39.) Once Defendant Lathan was served—after
Defendants filed the motion for summary judgment—Defendant Lathan filed a notice
adopting Defendants’ motion for summary judgment. (ECF No. 50.) Accordingly, the
motion for summary judgment is deemed filed on behalf of all Defendants in this case.
2

Plaintiff’s response was due by August 23, 2017. (ECF No. 48.) Plaintiff,
however, did not file his response until September 22, 2017. (ECF No. 53.) Plaintiff
represents that he suffered a “psychological emergency” which put him on self-harm
observation. By the time he was released from observation, however, the deadline had
passed. Plaintiff requests the Court to consider the evidence attached to his response
in ruling on Defendant’s motion for summary judgment. The Court therefore construes
Plaintiff’s request as a motion for leave to file an untimely response in opposition to
Defendant’s motion for summary judgment. Defendants have not filed a response in
opposition and the time for doing so has expired. Accordingly, the Court concludes that

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however, have not filed a response to Plaintiff’s motion for leave to file an
amended complaint and the time for doing so has expired.3 The motions
are therefore ripe for review. For the reasons discussed below, Plaintiff’s
motion for leave to file an amended complaint is granted and it is
respectfully recommended that Defendants’ motion for summary judgment
should be granted in part and denied in part.
I. MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT
Plaintiff filed his motion for leave to file an amended complaint while
Defendants’ motion for summary judgment was pending. (ECF No. 46.)
Defendants have not filed a response in opposition to Plaintiff’s motion.
The Court therefore considers the motion for leave to amend to be
unopposed.
Plaintiff’s proposed amended complaint names the same five
Defendants as the original complaint. The proposed amended complaint
clarifies that the claims are asserted against Defendants in their official and
individual capacities. The factual allegations are substantially the same.
Plaintiff’s proposed amended complaint also contains the same claims as
Plaintiff has shown excusable neglect and good cause and his request to consider the
evidence as timely filed is therefore granted.
3

Plaintiff filed his motion for leave to file an amended complaint on July 17,
2017. (ECF No. 46.)
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the original complaint, except that he has combined his two excessive
force claims into one excessive force claim in the proposed amended
complaint.4 Finally, Plaintiff seeks the same amount in compensatory
damages and punitive damages. The only difference is that the proposed
amended complaint contains a request for the Court to “[g]rant such other
relief as it may appear that the Plaintiff is entitled.” (ECF No. 46 at 7.)
The proposed amended complaint does not affect the substantive
resolution of the pending motion for summary judgment because the
Defendants and claims are identical to those in the original complaint.
Additionally, Defendants have not objected to Plaintiff’s motion for leave to
file the proposed amended complaint. Finally, although Plaintiff’s new
request for any other relief the Court deems proper (i.e., nominal damages)
goes directly to several arguments set forth in Defendants’ motion for
summary judgment, the interests of justice and efficiency weigh in favor of
granting Plaintiff’s motion for leave to amend. See Fed. R. Civ. P. 15(a)(2).
Accordingly, Plaintiff’s motion for leave to file the amended complaint
is granted and the amended complaint, ECF No. 46, shall become the
4

The original complaint separated Plaintiff’s excessive force claim into two
separate claims—count 2 against Defendant Stokes for failing to intervene in the other
Defendants’ use of excessive force, and count 3 against Defendants Pugh, West,
Lathan, and Jones for excessive force. (ECF No. 1 at 10.) The proposed amended
complaint simply combines the two claims into one claim against all Defendants for
excessive force and failing to intervene. (ECF No. 46 at 6.)
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operative complaint in this matter. The motion for summary judgment is
therefore carried over to Plaintiff’s amended complaint. See Reflectone,
Inc. v. Farrand Optical Co., 862 F.2d 841, 846 (11th Cir. 1989) (affirming
district court’s decision to carry pending motion for summary judgment over
to an amended complaint when the allegations in the amended complaint
did not affect arguments in the summary judgment motion); Scroggins v.
LifePoint Health, No. 2:16-CV-338-WKW, 2016 WL 9275449, at *1 (M.D.
Ala. Aug. 3, 2016) (carrying over motion for summary judgment to
amended complaint filed while motion for summary judgment was pending
because amended complaint did not affect the substantive resolution of the
motion for summary judgment).
II. MOTION FOR SUMMARY JUDGMENT
A. BACKGROUND
Plaintiff, an inmate in the custody of the Florida Department of
Corrections (“FDOC”) at Santa Rosa Correctional Institution (“Santa Rosa
CI”), initiated this case by filing a pro se complaint pursuant to 42 U.S.C. §
1983. Plaintiff claims Defendants—all employees of the FDOC at Santa
Rosa CI—violated his Fourteenth Amendment rights by discriminating
against him and making degrading racial comments to Plaintiff. He also
claims Defendants used excessive force against Plaintiff on February 25,
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2016, and sexually assaulted him in violation of the Eighth Amendment.5
B. EVIDENCE
1.

Medical History

Plaintiff has a history of shoulder dislocations. To start, on November
26, 2013, Plaintiff reported to medical with complaints of right shoulder
dislocation while exercising. (ECF No. 39-1 at 87 (“MR/Maier Dec.”).)
Plaintiff stated he heard a pop sound while doing push ups. (Id.) Plaintiff
was issued health passes for a low/bottom bunk and an arm sling. (Id. at
107.)
Plaintiff also presented to Medical on January 23, 2014, and
February 6, 2014, with complaints of left shoulder pain, reporting that he
had a history of front left shoulder dislocation dating back to 2007. (Id. at
112–13.) X-rays of Plaintiff’s left shoulder on February 19, 2014, revealed
post-traumatic osteolysis of the distal clavicle, but no fractures, dislocation,
or subluxation. (Id. at 111.)
Plaintiff returned to medical on October 20, 2014, with complaints of
left shoulder pain, again reporting a history of left shoulder pain. (Id. at 84.)

5

Plaintiff’s claims pertaining to sexual assault are only asserted against
Defendants Pugh, West, and Lathan.
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2.

Use of Force

At approximately 8:30 p.m. on February 25, 2016, Defendants
ordered Plaintiff to submit to hand restraints in order to leave his cell to
shower. (ECF No. 53 at 19, 14:25, 15:1–5; MR/Maier Dec. at 105.) As
Plaintiff exited his cell to comply, Defendant Pugh told Plaintiff to kneel
down so he could put leg irons on Plaintiff’s ankles. (ECF No. 53 at 19,
15:5–7.) Plaintiff asked why the leg irons were necessary. (Id. at 15:7–10.)
Defendant Pugh said “[d]on’t you forget you assault[ed] my officer last
year,” then began calling Plaintiff an “Ethiopian piece of shit.” (Id. at
15:10–13.) Defendant West interjected, making fun of Plaintiff for being
skinny because he is Ethiopian. (Id. at 20, 17:3–8.)
In light of Defendants’ comments, Plaintiff decided he no longer
wanted to take a shower and took a step back towards his cell. (Id. at
17:8–9, 20:4–5.) Defendant Pugh used both hands to push Plaintiff into the
cell with “extreme force.” (Id. at 20:7–16.) Plaintiff fell down and hit his
shoulder on the table, which caused his shoulder to dislocate. (Id. at
20:18–25, 21 at 21:1–6.) Plaintiff laid on the floor screaming from shoulder
and back pain. (Id. at 21, 21:5–6.) Defendants Pugh and West ignored
Plaintiff’s cries for medical help and shut the cell door. (Id. at 24,
35:10–12.)
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Approximately thirty minutes after the incident, Nurse Danley went to
Plaintiff’s cell to check on Plaintiff. (Id. at 27, 45:5–9; MR/Maier Dec. at
105.) Plaintiff was lying on the cell floor complaining he had back pain and
could not stand. (MR/Maier Dec. at 105.)
When Nurse Danley left, Defendant Stokes ordered Plaintiff to stand
up and exit the cell. (ECF No. 53 at 27, 47:14–19.) Plaintiff told Defendant
Stokes he could not get up because his arm was dislocated. (Id. at
47:6–8.) Defendant Stokes threatened Plaintiff that if he did not come out
of the cell Plaintiff would wish he had died starving in Ethiopia. (Id. at
48:2–11.) Plaintiff, however, could not get up because he was in pain. (Id.
at 48:12–16.)
Defendants Pugh, West, and Lathan opened the cell door and began
beating Plaintiff. (Id. at 48:18–23.) Defendant Stokes remained outside the
cell blocking the door. (Id. at 28, 49:3–13.) Defendant West grabbed and
twisted Plaintiff’s dislocated arm, causing Plaintiff’s shoulder to pop back
into the socket and his finger to bend painfully. (Id. at 52:9–15, 29 at
54:6–25.) Defendants Pugh, West, and Lathan continued kicking and
punching Plaintiff. (Id. at 29.)
During the assault, one of the Defendants pulled down Plaintiff’s
boxers—which was all he was wearing at the time. (Id. at 30, 57:1–20.)
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Plaintiff felt one of the Defendants’ fingers go between his buttocks and
touch—but not penetrate—his anus. (Id. at 59:23–25, 60:1–6, 64:4.) Then
a hand went between Plaintiff’s legs and grabbed Plaintiff’s testicles. (Id. at
64:5–25, 32 at 65:1–25, 66:1–25.) Plaintiff does not know who touched his
genitals or buttocks, but only felt one hand. (Id. at 31, 62:20, 63:23.) The
touching lasted approximately three to four seconds. (Id. at 32, 65:03–10.)
Eventually, Defendants lifted Plaintiff up, pulled up Plaintiff’s boxers,
and turned Plaintiff to face Defendant Stokes. (Id. at 67:4–6.) Defendant
Stokes, however, told the other Defendants to put Plaintiff down and
continued beating Plaintiff. (Id. at 67:7–8.) Defendants Pugh, West, and
Lathan dropped Plaintiff back onto the ground and continued beating
Plaintiff for a few moments. (Id. at 67:9–24.)
Defendant Jones then arrived with a wheelchair. (Id. at 68:8–15.)
Defendants lifted Plaintiff up and put him in the wheelchair. (Id. at
68:16–22.) Once Plaintiff was in the wheelchair, one of the
Defendants—which Plaintiff thinks was Defendant Jones—punched
Plaintiff. (Id. at 33, 69:4–25, 71:1–14.) Defendants then brought Plaintiff to
medical for examination. (Id. at 71:20–22; MR/Maier Dec. at 105.)
Examination at approximately 9:15 p.m. revealed a bruise and
swelling on the right side of Plaintiff’s forehead. (MR/Maier Dec. at
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105–06.) Plaintiff also had a small abrasion on his lower lip. (Id.) There
were no other injuries noted. (Id. at 105.) After the examination Plaintiff
walked back to his cell without difficulty and with no signs of distress. (Id.)
Plaintiff, however, declared a medical emergency at approximately
2:54 a.m. on February 26, 2016. (Id. at 29.) He reported that his shoulder
and back hurt and requested his injuries be documented. (Id.) Nurse Deily
completed a cell-front examination because security refused to pull Plaintiff
out of his cell due to disruptive behavior and threats to staff. (Id.) Plaintiff
had no shortness of breath, no signs of acute distress, and no active
bleeding. (Id.) Plaintiff demonstrated a full range of motion in all
extremities. (Id.) He did, however, have minor swelling to his right
forehead, but no other injuries. (Id.)
Plaintiff then declared another medical emergency at approximately
8:00 a.m., claiming that his right shoulder was dislocated and his arm and
finger broken from the use of force last night. (Id. at 27.) Examination
revealed no swelling, no deformities, intact skin, no evidence of fracture,
and no dislocations. (Id.)
Plaintiff later presented to medical at approximately 10:40 a.m.,
claiming that his shoulder was dislocated the night before from the use of
force incident. (Id. at 103.) Plaintiff reported that his shoulder goes in and
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out. (Id.) Plaintiff displayed no signs or symptoms of distress, no
deformities or injuries were noted, and examination revealed a full range of
motion. (Id. at 103–04.)
Plaintiff declared a medical emergency on February 28, 2016, at
approximately 8:50 a.m., reporting back and shoulder pain from the use of
force incident. (Id. at 22.) Plaintiff refused, however, to be properly cuffed
by security to go to medical. (Id.) Plaintiff had a shirt on despite claims that
he could not move his arms at all. (Id.) There were no visual abnormalities
noted and Plaintiff’s shoulder height was even. (Id.)
At 12:30 a.m. the next morning, Plaintiff declared another medical
emergency claiming that both of his shoulders were dislocated. (Id. at 25.)
Examination revealed no swelling, no deformities, intact skin, a full range
of motion in both arms, no signs of distress, and no dislocations. (Id.) Due
to the lack of emergency, Plaintiff was instructed to submit a sick call
request. (Id.)
Accordingly, Plaintiff submitted a sick call request and was examined
at approximately 10:00 a.m. (Id. at 20–21.) Plaintiff reported that his left
shoulder dislocated the night before. (Id.) Examination revealed no
swelling, no change in pain with mild palpation, no visible redness or
edema, and no bruising. (Id.) Plaintiff’s left and right shoulder were equal in
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size and height and Plaintiff could bend and straighten his arm. (Id.)
Plaintiff submitted a sick call request on March 16, 2016, claiming
that his shoulder dislocated two weeks ago and every time he moves it
comes out of the socket. (Id. at 17.) He also claimed his finger and back
were broken. (Id.) Plaintiff was seen in medical later that day, at which time
he reported that his right shoulder popped out while working out and went
back in by itself. (Id. at 18.) No injuries were noted. (Id.)
Albert Carl Maier, M.D., Senior Physician for the FDOC, reviewed
Plaintiff’s medical records from November 2013 through August 2016. (Id.
at 1, ¶¶ 1, 3.) According to Dr. Maier, with respect to shoulder dislocations,
it is axiomatic at the time of initial shoulder dislocation the
affected shoulder be strictly and totally immobilized for a
minimal period of 2–3 weeks to permit healing of the rotator
cuff ligaments which maintain the shoulder placement in the
acromial fossa. If this strict immobilization is not provided, the
affected shoulder will not heal properly and the instant
ligaments remain sufficiently lax to fail to secure the humeral
head in the shoulder joint. This will predispose the untreated
shoulder to repetitive dislocation with even the most minor of
traumas in the future and ultimately necessitate corrective
surgery reconstruction of the rotator cuff to re-establish
shoulder stability.
(Id. at 2, ¶ 4.)
Dr. Maier attests6 that Plaintiff’s medical records,

6

Dr. Maier submitted his unsworn declaration under penalty of perjury.

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show minimal notations of forehead bruise/abrasion, but no
suggestion of anything more than the patient’s usual and
longstanding unstable shoulders and no documented
assessments of any hand/wrist/head/concussive/visual injuries.
[Plaintiff] was evaluated regularly and repetitively during the
time after his alleged[] staff assault by multiple medical
providers who uniformly failed to document any injuries of
manifest substance.
(Id. at 4, ¶ 16.)
Plaintiff says he has suffered physical and emotional damages from
the February 25, 2016 assault. (ECF No. 53 at 5.)7 He had occasional
minor pain in his shoulder before the assault, but now his “right shoulder is
totally out of use because a very small movement is causing [him]
unbearable pain.” (Id.) He cannot lift any substantial weight or perform any
physical tasks without dislocating his shoulder. (Id.) Plaintiff also has sharp
pains in his right side, constant headaches, occasional blurred vision, and
back pain from the assault. (Id.) In addition, Plaintiff says he feels like less
of a man and is emotionally damaged from the sexual assault. (Id.)
C. STANDARD OF REVIEW
The entry of summary judgment is appropriate only when the Court is
satisfied “there is no genuine dispute as to any material fact and the
movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a).

7

Plaintiff submitted his unsworn declaration under penalty of perjury.

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In applying this standard, the Court must examine the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with any affidavits and other evidence in the record “in the light most
favorable to the nonmoving party.” Samples on Behalf of Samples v.
Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988). But, “when opposing parties
tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt
that version of the facts for purposes of ruling on a motion for summary
judgment.” Morton v. Kirkwood, 707 F.3d 1276, 1284 (11th Cir. 2013)
(internal quotations and citations omitted); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986) (to defeat summary judgment “there
must be evidence on which the jury could reasonably find for the plaintiff”)
“The nonmovant need not be given the benefit of every inference but only
of every reasonable inference.” Brown v. City of Clewiston, 848 F.2d 1534,
1540 n.12 (11th Cir. 1988) (“The summary judgment standard requires that
we resolve all reasonable doubts in favor of the non-moving party, but it
does not require us to resolve all doubts in such a manner.”).
As the Supreme Court held in Celotex Corp. v. Catrett, 477 U.S. 317
(1986), the moving party bears the initial burden of establishing the
nonexistence of a triable issue of fact. If the movant is successful on this
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score, the burden of production shifts to the non-moving party who must
then come forward with “sufficient evidence of every element that he or she
must prove.” Rollins v. Techsouth, 833 F.2d 1525, 1528 (11th Cir. 1987).
The non-moving party may not simply rest on the pleadings, but must use
affidavits, depositions, answers to interrogatories, or other admissible
evidence to demonstrate that a material fact issue remains to be tried. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Castleberry v.
Goldome Credit Corp., 408 F.3d 773, 785–86 (11th Cir. 2005). In civil
actions filed by inmates, federal courts,
must distinguish between evidence of disputed facts and
disputed matters of professional judgment. In respect to the
latter, our inferences must accord deference to the views of
prison authorities. Unless a prisoner can point to sufficient
evidence regarding such issues of judgment to allow him to
prevail on the merits, he cannot prevail at the summary
judgement stage.
Beard v. Banks, 548 U.S. 521, 530 (2006). Conclusory allegations based
on subjective beliefs are insufficient to create a genuine issue of material
fact. See, e.g., Waddell v. Valley Forge Dental Assocs., Inc., 276 F.3d
1275, 1279 (11th Cir. 2001).
D. DISCUSSION
Defendants argue they are entitled to Eleventh Amendment immunity
for monetary damages in their official capacities. (ECF No. 39.) Defendants
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also argue that Plaintiff’s claims against them in their individual capacities
should be dismissed without prejudice because Plaintiff is not entitled to
compensatory or punitive damages without the prior showing of a physical
injury or commission of a sexual act and because Plaintiff did not request
nominal damages.
1.

Eleventh Amendment Immunity

A suit against a state official in his official capacity is a suit against
the State itself. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71
(1989). The Eleventh Amendment prohibits a suit against the State absent
the State’s consent to the suit. Alabama v. Puch, 438 U.S. 781, 782
(1978). Florida has not waived its sovereign immunity or consented to be
sued in damage suits brought under § 1983. See § 768.28(18), Fla. Stat.;
Gamble v. Fla. Dep’t of Health & Rehabilitative Servs., 779 F.2d 1509,
1515 (11th Cir. 1986). Accordingly, to the extent Plaintiff’s claims are
interpreted as bringing suit for damages against Defendants in their official
capacities, Defendants are entitled to summary judgment.
2.

Damages

Under the Prison Litigation Reform Act (“PLRA”), “[n]o 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
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without a prior showing of physical injury or the commission of a sexual act
as defined in section 2246 of title 18).” 42 U.S.C. § 1997e(e). “[T]he
physical injury must be more than de minimis, but need not be significant.”
Harris v. Garner, 190 F.3d 1279, 1286 (11th Cir. 1999), vacated, 197 F.3d
1059, reinstated in relevant part, 216 F.3d 970, 972 (11th Cir. 2000); see
Thompson v. Sec’y, Fla. Dep’t of Corr., 551 F. App’x 555, 557 n.3 (11th
Cir. 2014) (noting that the Eleventh Circuit has not adopted a definition of
“de minimis,” but acknowledging “one court has described it as ‘a physical
injury is an observable or diagnosable medical condition requiring
treatment by a medical care professional’”) (quoting Luong v. Hatt, 979 F.
Supp. 481 (N.D. Tex. 1997).
In the Eleventh Circuit, “[t]he meaning of the phrase ‘greater than de
minimis,’ however, is far from clear.” Chatham v. Adcock, 334 F. App’x
281, 284 (11th Cir. 2009); compare Mann v. McNeil, 360 F. App’x 31, 32
(11th Cir. 2010) (plaintiff’s claims for compensatory and punitive damages
were barred by § 1997e(e) where plaintiff complained of vague injuries to
his back and scrapes and marks on his knees and legs), and Quinlan v.
Personal Trans. Servs., Co., 329 F. App’x 246, 249 (11th Cir. 2009)
(pretrial detainee’s complaints of headaches, difficulty breathing, temporary
chest pain, and lingering back pain were not greater than de minimis
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injuries), with Jenkins v. Hutcheson, No. 6:14-cv-81, 2016 WL 4496561, at
*13 (S.D. Ga. June 22, 2016), report and recommendation adopted, 2016
WL 4491850, at *1–2 (S.D. Ga. Aug. 25, 2016) (denying summary
judgment on plaintiff’s excessive force claim where plaintiff said he
suffered lacerations, bruising, swelling, migraines, and numbness in his
hands because a reasonable jury could find the injuries to be more than de
minimis), and Cotney v. Bowers, No. 2:03-cv-1181-WKW, 2006 WL
2772775, at *7 (M.D. Ala. Sept. 26, 2006) (plaintiff’s testimony that he
suffered bruises to his ribs from officer’s use of force and that the bruises
healed after several weeks without treatment surmounted PLRA’s de
minimis injury bar because plaintiff put forth evidence from which a jury
could determine his physical injuries were more than de minimis).
Discomfort does not equate to physical injury. Dixon v. Toole, 225 F. App’x
797, 799 (11th Cir. 2007).
a.

Excessive Force

The Eighth Amendment provides the right to be free from cruel and
unusual punishment. U.S. Const. amend. VIII. The use of excessive
physical force against a prisoner may constitute cruel and unusual
punishment in violation of the Eighth Amendment. Hudson v. McMillian,
503 U.S. 1, 4 (1992); Campbell v. Sikes, 169 F.3d 1353, 1374 (11th Cir.
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1999). “In Eighth Amendment excessive force cases, the ‘core judicial
inquiry’ is ‘not whether a certain quantum of injury was sustained, but
rather whether force was applied in a good-faith effort to maintain or
restore discipline, or maliciously and sadistically to cause harm.’” Bowden
v. Stokely, 576 F. App’x 951, 953 (11th Cir. 2014) (quoting Wilkins v.
Gaddy, 559 U.S. 34, 37 (2010)). Five factors should be considered in
determining whether force was used sadistically and maliciously:
(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, 169 F.3d at 1375 (quotations and citations omitted).
“When we consider whether the jailers’ use of force was excessive,
we must ‘give a wide range of deference to prison officials acting to
preserve discipline and security.’” Danley v. Allen, 540 F.3d 1298, 1307
(11th Cir. 1990) (quoting Bennett v. Parker, 898 F.2d 1530, 1533 (11th Cir.
1990)). “Prison guards may use force when necessary to restore order and
need not wait until disturbances reach dangerous proportions before
responding.” Bennett, 898 F.2d at 1533. “Eighth Amendment claims based
on de minimis uses of physical force by prison guards are not cognizable
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unless they involve ‘force that is repugnant to the conscience of mankind.’”
Johnson v. Moody, 206 F. App’x 880, 884–85 (11th Cir. 2006) (quoting
Hudson, 503 U.S. at 9–10). “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.
Defendants have failed to demonstrate that they are entitled to
summary judgment on Plaintiff’s excessive force claims. Plaintiff
says—under penalty of perjury—that the assault occurred. Defendants
have submitted no evidence demonstrating that the assault did not occur,
or otherwise challenging Plaintiff’s version of events. If the assault
occurred as Plaintiff says it did, a reasonable jury could find that force was
utilized for no reason and therefore used sadistically and maliciously. See
Wilkins, 559 U.S. at 40 (concluding that to prevail, plaintiff would “have to
prove not only that the assault actually occurred but also that it was carried
out ‘maliciously and sadistically’ rather than as part of ‘a good-faith effort to
maintain or restore discipline’”).
A reasonable jury could also conclude that Plaintiff’s injuries were
more than de minimis. Defendants do not deny that Plaintiff’s shoulder was
dislocated during the incident, nor do they deny that Plaintiff was in severe
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pain. Although Plaintiff may have had no visible shoulder injuries when
Nurse Danley examined Plaintiff at medical forty-five minutes after the
incident, the evidence demonstrates that Plaintiff’s shoulder popped back
into the socket before he was transported to medical.8 A separated
shoulder arguably constitutes more than a de minimis injury. While
Plaintiff’s propensity for shoulder dislocations may go to the amount of
force used, a mere history of shoulder dislocations does not negate the
fact that his shoulder was dislocated. See Rodriguez v. Farrell, 280 F.3d
1341, 1353 (11th Cir.2002) (“[w]hat would ordinarily be considered
reasonable force does not become excessive force when the force
aggravates (however severely) a pre-existing condition the extent of which
was unknown to the officer at the time”).
Accordingly, because a reasonable jury could find that Plaintiff’s
injuries rise above the de minimis level, Defendants are not entitled to
summary judgment on Plaintiff’s excessive force claims. See Goodwin v.
Hatten, No. 1:07-cv-00123-MP-AK, 2010 WL 750290, at *4–5 (N.D. Fla.
Mar. 1, 2010) (denying summary judgment on excessive force claim where
plaintiff’s medical records corroborated his claim that he suffered rib pain

8

When Nurse Danley went to Plaintiff’s cell after the incident, Plaintiff was lying
on the floor and said he could not stand. The evidence does not demonstrate that
Nurse Danley entered Plaintiff’s cell and conducted an examination at that point.
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and difficulty breathing following assault by prison guard because genuine
issue of material fact existed as to whether the alleged assault occurred
and whether plaintiff’s injuries were more than de minimis such that he may
pursue a claim for mental or emotional injury in addition to his physical
injuries).
Furthermore, even if Plaintiff’s injuries do not rise above the de
minimis level, Plaintiff’s amended complaint requests “such other relief as it
may appear that . . . Plaintiff is entitled.” (ECF No. 46 at 7.) The Court
construes this open-ended request to include nominal damages. See
Boxer X v. Donald, 169 F. App’x 555, 559 (11th Cir. 2006) (concluding that
request for compensatory damages and “any other relief the court deems
appropriate” included nominal damages); Hughes v. Lott, 350 F.3d 1157,
1162 (11th Cir. 2003) (district court must analyze the pleading to determine
whether the complaint includes a request for nominal damages before
dismissing a complaint without prejudice for lack of physical injury).
Accordingly, Defendants’ motion for summary judgment on Plaintiff’s
excessive force claims should be denied.
b.

Sexual Assault

Prior to 2013, a prisoner had to show a prior physical injury suffered
while in custody in order to bring an action for mental or emotional injury.
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See 42 U.S.C. § 1997e(e) (effective Apr. 26, 1996, to Mar. 6, 2013).
Nevertheless, courts recognized that a sexual assault could constitute a
“physical injury” under the PLRA. See Kahle v. Leonard, 563 F.3d 736,
741–42 (8th Cir. 2009) (district court did not abuse its discretion in denying
correctional officer’s physical-injury jury instruction where plaintiff alleged
she was raped by the correctional officer while incarcerated); Liner v.
Goord, 196 F.3d 132, 135 (2d Cir. 1999) (noting that sexual assaults
qualify as physical injuries as a matter of common sense and constitute
more than de minimis injury if they occurred); Marrie v. Nickels, 70 F.
Supp. 2d 1252, 1264 (D. Kan. 1999) (allegations that prison guard
caressed prisoner’s buttocks and genitalia qualified as a physical injury
under § 1997e(e) to preclude dismissal).
Section 1997e(e) was amended in 2013, however, to add language
pertaining to the commission of a “sexual act.” See Violence Against
Women Reauthorization Act of 2013, Pub.L. 113-4, Title XI, § 1101(a), 127
Stat. 134 (2013). Section 1997e(e) now expressly permits a prisoner to
bring an action for mental or emotional injury suffered while in custody from
the commission of a “sexual act” as defined in § 2246—absent a prior
showing of physical injury. See Oxendine-Bey v. Harihan, No. 5:12-CT03084-FL, 2015 WL 5331809, at *6 (E.D.N.C. July 22, 2015).
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Section 2246 defines a “sexual act” as:
(A) contact between the penis and the vulva or the penis and
the anus, and for purposes of this subparagraph contact
involving the penis occurs upon penetration, however slight;
(B) contact between the mouth and the penis, the mouth and
the vulva, or the mouth and the anus;
(C) the penetration, however slight, of the anal or genital
opening of another by a hand or finger or by any object, with an
intent to abuse, humiliate, harass, degrade, or arouse or gratify
the sexual desire of any person; or
(D) the intentional touching, not through the clothing, of the
genitalia of another person who has not attained the age of 16
years with an intent to abuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire of any person . . . .
§ 2246(2). The 2013 amendment therefore clarified the specific actions
which permit a prisoner to bring a claim for mental or emotional injury for a
sexual assault absent physical injury.
Plaintiff says he suffered emotional damages from the sexual abuse
in this case. Thus, absent physical injury he must demonstrate that he
meets the definition of “sexual act” under § 2246 to seek compensatory
and punitive damages on his sexual abuse claim.
The evidence, viewed in the light most favorable to the Plaintiff,
demonstrates that a hand touched Plaintiff’s buttocks, a finger
touched—but did not penetrate—Plaintiff’s anus, and a hand grabbed his
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testicles. None of these actions meet the definition of a “sexual act” under
§ 2246. Instead, these actions constitute, at most, “sexual contact” under §
2246. See § 2246(e) (“the intentional touching, either directly or through
the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of
any person with an intent to abuse, humiliate, harass, degrade, or arouse
or gratify the sexual desire of any person,” is defined as “sexual contact”).
“Sexual contact,” however, is not the same as “sexual act” under § 2246.
See Mattison v. Williams, No. 5:14-cv-187-OC-29PRL, 2015 WL 476183,
at *3 (M.D. Fla. Feb. 5, 2015). Accordingly, because Plaintiff has failed to
demonstrate that Defendants committed a sexual act as defined in § 2246,
Plaintiff’s request for compensatory and punitive damages on his sexual
abuse claim should be dismissed.
Furthermore, while Plaintiff would normally be permitted to proceed
with his sexual abuse claim seeking nominal damages from Defendants
Pugh, West, and Lathan in their individual capacities, the undisputed
evidence demonstrates that Plaintiff does not know which Defendant’s
finger and/or hand touched and grabbed him and Plaintiff felt only one
hand. Moreover, there is no evidence, nor are there even any allegations,
that the other two Defendants failed to intervene or somehow encouraged
whichever Defendant touched and grabbed Plaintiff. Plaintiff therefore
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cannot prevail on his sexual abuse claim. See Boxer X, 437 F.3d at 1111
(a sexual abuse claim under the Eighth Amendment includes a subjective
component, which requires the prison official have a “sufficiently culpable
state of mind”). Plaintiff’s sexual abuse claim is therefore due to be
dismissed.
c.

Racial Discrimination

Plaintiff’s claim for racial discrimination arises under the equal
protection clause of the Fourteenth Amendment. To prevail on his claim
Plaintiff must establish that he was treated differently from other similarly
situated individuals and that the differential treatment was based on race.
Lozman v. City of Riviera Beach, 39 F. Supp. 3d 1392, 1411 (S.D. Fla.
2014) (citing Harlen Assocs. v. Inc. Village of Mineola, 2173 F.3d 494, 499
(2d Cir. 2001)). Plaintiff, however, fails to even allege, much less provide
evidence, that he was treated differently from other similarly situated
individuals or that the differential treatment was based on race. While
derogatory comments such as those Plaintiff says Defendants made are
highly inappropriate in any situation, the comments, without more, do not
rise to the level of a constitutional violation.9
9

Even assuming Plaintiff brought his claim under the Eighth Amendment alleging
cruel and unusual punishment based on Defendants’ derogatory racial comments he
would nonetheless not be entitled to relief. See Anderson v. Pullom, No. 2:12-CV-521WHA, 2012 WL 3846399, at *1 (M.D. Ala. Aug. 13, 2012) (collecting cases
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Furthermore, Plaintiff does not allege, nor has he provided any
evidence demonstrating that he suffered any type of physical or emotional
injury from Defendants’ alleged comments. Plaintiff’s racial discrimination
claims against Defendants in their individual capacities should therefore be
dismissed.
III. CONCLUSION
Upon due consideration, it is ORDERED:
1.

Plaintiff’s motion for leave to file an amended complaint, ECF
No. 46, is GRANTED.

2.

The Clerk is directed to docket a copy of the amended
complaint attached to the motion for leave to file an amended
complaint (ECF No. 46 at 2–10) as a separate docket entry;
and

It is respectfully RECOMMENDED that:
1.

Defendants’ Motion for Summary Judgment, ECF No. 39,
should be GRANTED in part and DENIED in part.

IN CHAMBERS at Gainesville, Florida, this 22nd day of November
2017.

s/Gary R. Jones
GARY R. JONES
United States Magistrate Judge

demonstrating that “[d]erogatory, demeaning, profane, threatening or abusive
comments made by an officer to an inmate, no matter how repugnant or
unprofessional, do not rise to the level of a constitutional violation”).
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NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations must be
filed within fourteen (14) days after being served a copy thereof. Any
different deadline that may appear on the electronic docket is for the
court’s internal use only, and does not control. A copy of objections
shall be served upon all other parties. If a party fails to object to the
magistrate judge's findings or recommendations as to any particular
claim or issue contained in a report and recommendation, that party
waives the right to challenge on appeal the district court's order
based on the unobjected-to factual and legal conclusions. See 11th
Cir. Rule 3-1; 28 U.S.C. § 636.

Case No: 3:16-cv-446-MCR-GRJ