Davis v. Bradshaw et al
Filing
256
ORDER Granting 245 Motion to Alter or Amend Summary Judgment and Granting in Part Denying in part 244 Amended Renewed Motion for Final Summary Judgment. This matter is REFERRED to Magistrate Judge Bruce E. Reinhart for a Settlement Conference. Signed by Judge Robin L. Rosenberg on 9/25/2020. See attached document for full details. (cds)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 9:14-CV-80429-ROSENBERG/REINHART
CHARLES EDWARD DAVIS, II,
Plaintiff,
v.
SHERIFF RIC BRADSHAW, et al.,
Defendants.
_______________________________/
ORDER GRANTING MOTION TO ALTER OR AMEND
SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING
IN PART AMENDED RENEWED MOTION FOR FINAL SUMMARY JUDGMENT
This matter comes before the Court on Defendants Sheriff Ric Bradshaw, Deputy Narda
Jones, and Deputy Horace Thompkins’s Amended Renewed Motion for Final Summary Judgment
[DE 244] and on Plaintiff Charles Davis, II’s Motion to Alter or Amend Summary Judgment
[DE 245]. Both motions are fully briefed. The Court has carefully reviewed the Motions, the
Responses and Replies thereto, and the entire record, and is otherwise fully advised in the premises.
For the reasons set forth below, the Motion to Alter or Amend Summary Judgment is granted, and
the Amended Renewed Motion for Final Summary Judgment is granted in part and denied in part.
I.
MOTION TO ALTER OR AMEND
As background, the undersigned was assigned this case after it had been pending for
approximately five and a half years. See DE 195. Following a status conference with the parties
to address how this case should proceed in an efficient and expeditious manner, Davis filed a
Second Amended Complaint raising civil rights claims under 42 U.S.C. § 1983 for failure to
protect and failure to intervene against Deputies Thompkins and Jones and raising negligence
claims under Florida law against the Deputies and Sheriff Bradshaw. See DE 196; DE 200. The
Second Amended Complaint prompted a Motion to Dismiss and, later, a Renewed Motion for
Summary Judgment. See DE 212; DE 228.
Defendants’ Renewed Motion for Summary Judgment sought judgment on the § 1983
claims on their merits and for failure to exhaust administrative remedies and sought judgment on
the negligence claims on procedural grounds. DE 228. The Court granted summary judgment on
the § 1983 claims and denied summary judgment on the negligence claims. DE 239. More
specifically, the Court concluded that the Deputies had waived their exhaustion argument by
failing to raise it earlier in this case. Id. at 6-7. The Court determined that summary judgment was
appropriate on the failure-to-protect claims due to the lack of evidence that either Deputy was
subjectively aware of a risk to Davis’s safety before the attack that is the subject of this litigation—
another inmate (“inmate Jones”) throwing hot water from a cup into Davis’s face and then
attempting to stab him with a shank. Id. at 10-13. The Court determined that summary judgment
was appropriate on the failure-to-intervene claims because the Deputies could not have intervened
in the throwing of the hot water and because there was no allegation or evidence that Davis suffered
injury from fighting with inmate Jones with the shank. Id. at 14-15. As to the negligence claims,
the Court rejected Defendants’ arguments relating to pleading deficiencies and lack of statutory
notice. Id. at 15-19.
The Court concluded its Summary Judgment Order by noting that Defendants had not
sought summary judgment on the merits of the negligence claims. Id. at 19. Given the possibility
that the issues for trial could be further narrowed through a summary judgment order on the merits
of the negligence claims, and given that further summary judgment briefing would not delay the
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trial because jury trials are currently stayed in this District due to the COVID-19 pandemic, the
Court allowed Defendants to move for permission to seek summary judgment on the merits of the
negligence claims. Id. Defendants subsequently did move for such permission, Davis did not
oppose the motion, and the Court granted the motion. See DE 240; DE 242; DE 243. The instant
Amended Renewed Motion for Final Summary Judgment resulted.
While the Amended Renewed Motion for Final Summary Judgment was briefing, Davis
filed the instant Motion to Alter or Amend under Fed. R. Civ. P. 59(e). He asks the Court to amend
its Summary Judgment Order based on evidence that he failed to bring to the Court’s attention
during the prior summary judgment briefing. This evidence falls into two categories.
First, Davis points to evidence that, immediately before inmate Jones threw the hot water,
Deputy Thompkins looked at inmate Jones and said something to the effect of, “Go ahead, handle
that.” Davis provides no explanation for failing to bring what he calls “critical” evidence to the
Court’s attention during the prior briefing. See Fed. R. Civ. P. 56(c)(1)(A) (requiring a party on
summary judgment to support facts by citing to particular parts of the record); Southern District
of Florida Local Rule 56.1(a), (b) (requiring a party opposing summary judgment to file a
statement of material facts with citations to particular parts of the record); DE 206 at 10-12 (Court’s
Trial Order specifying procedures for summary judgment, including the requirement of a statement
of material facts with specific references to the record). Davis did previously argue that Deputy
Thompkins had said something to the effect of, “go ahead,” but Davis did not, in his summary
judgment response, cite to any evidence that supported the argument. DE 233 at 4; DE 234 ¶ 78;
DE 239 at 13 n.2. Defendants, in their summary judgment reply, pointed out that Davis had failed
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to cite to any evidence that supported his argument. DE 237 at 3. He never sought leave to file a
sur-reply, to amend his statement of material facts, or to supplement the record.
Second, Davis points to evidence that he did suffer injury from fighting with inmate Jones
in that he was stabbed in the neck with the shank and had miscellaneous cuts, scrapes, abrasions,
and bruising to his body. Davis also provides no explanation for failing to bring this “critical”
evidence to the Court’s attention during the prior briefing. Not only did he previously fail to cite
to this evidence of injuries, but he also failed to even argue that he was injured as a result of the
fight. He did not respond to Defendants’ argument that there was no evidence of injury as a result
of the fight. DE 228 at 13-14; DE 239 at 14-15. He did not dispute that inmate Jones attempted
to stab him with the shank. DE 229 and 234 ¶ 43; DE 234 ¶ 49.
“[W]here a party attempts to introduce previously unsubmitted evidence on a motion to
reconsider, the court should not grant the motion absent some showing that the evidence was not
available during the pendency of the motion.” Mays v. U.S. Postal Serv., 122 F.3d 43, 46 (11th
Cir. 1997). Davis does not contend that the evidence that he now brings to the Court’s attention
was unavailable at the time of the prior summary judgment briefing.
Nevertheless, the Court exercises its discretion and will reconsider its Summary Judgment
Order in light of this new evidence. Cf. Harper v. Lawrence Cnty., Ala., 592 F.3d 1227, 1231-32
(11th Cir. 2010) (explaining that reconsideration is ultimately discretionary for a district court).
The Court makes this decision for several reasons. First, it would be unfair to penalize Davis for
his counsel’s briefing deficiencies. Second, reconsideration will not delay trial, as jury trials
remain stayed in this District through January 4, 2021, due to the COVID-19 pandemic. See United
States District Court Southern District of Florida Administrative Order 2020-53 (Aug. 11, 2020).
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Third, the Court permitted Defendants a second opportunity to seek summary judgment on the
negligence claims, and it would be nonsensical to now evaluate the negligence claims using a
different evidentiary record than was used to evaluate the § 1983 claims. Thus, the Court proceeds
to summary judgment analysis for all of Davis’s claims.
II.
A.
MOTION FOR SUMMARY JUDGMENT1
Civil Rights Claims
In short, to defeat summary judgment on a failure-to-protect claim, there must exist
evidence that the defendant was aware of specific facts showing a substantial and particularized
risk of serious harm to the plaintiff. See, e.g., Farmer v. Brennan, 511 U.S. 825, 837 (1994);
Carter v. Galloway, 352 F.3d 1346, 1349-50 (11th Cir. 2003). The Court previously determined
that the record lacked evidence that Deputies Thompkins and Jones were aware of a particularized
risk to Davis before inmate Jones threw hot water in his face. Davis now points to evidence that
does create a genuine issue as to whether Deputy Thompkins was aware of a substantial and
particularized risk that inmate Jones would harm Davis—the evidence that, while inmate Jones
was holding a cup of hot water, and immediately before he threw the water in Davis’s face, Deputy
Thompkins looked at inmate Jones and said, “Go ahead, handle that.”2 DE 255 at 5:50-6:10. If
this occurred, whether Deputy Tompkins’s statement indicates an awareness of and “verbal
1
The Court incorporates the undisputed facts, procedural background, summary judgment standard, and relevant law
set forth in the Summary Judgment Order and will discuss additional facts and law where appropriate. See DE 239.
2
Davis also maintains that Deputies Thompkins and Jones “willfully ignored” his plea to return to his cell when he
“warned” them of the danger that inmate Jones posed. DE 248 at 3, 8-9. He made this same contention in his prior
summary judgment response, and the Court, in the Summary Judgment Order, pointed out that he failed to cite to any
evidence that supported his contention. See DE 239 at 12. He instead cited only to evidence that he asked to be
excused and to take books back to his cell. See id. He continues to make the same contention upon re-briefing while
still failing to cite to any evidence supporting the contention.
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encouragement” for what inmate Jones was about to do (as Davis characterizes it), or whether
there is some other explanation for the statement, is a matter for the jury to resolve.
If Deputy Thompkins was aware of a substantial and particularized risk of serious harm to
Davis and failed to act to protect him, Deputy Thompkins is not entitled to qualified immunity.
See Scott v. Miami Dade Cnty., 657 F. App’x 877, 884-85 (11th Cir. 2016) (explaining that, for
the purpose of overcoming qualified immunity for a failure-to-protect claim, the Supreme Court
in Farmer v. Brennan set forth the broad and clearly established principle that prison officers have
a duty to protect inmates from violence at the hands of other inmates and may be held liable if they
know of and disregard a substantial risk of an inmate-on-inmate attack); see also King v. Pridmore,
961 F.3d 1135, 1145-46 (11th Cir. 2020) (stating that identification of a broad, clearly established
principle is one way to show that a defendant’s conduct violated a clearly established constitutional
right). Upon reconsideration and in light of the new evidence, there is a genuine issue of material
fact that precludes summary judgment on the failure-to-protect claim against Deputy Thompkins.
This evidence of Deputy Thompkins’s statement, however, does not demonstrate any
awareness by Deputy Jones that Davis would be attacked. Davis has pointed to no evidence that
Deputy Jones was aware of a substantial and particularized risk of serious harm to him. The
Court’s prior conclusion that she is entitled to qualified immunity and summary judgment on the
failure-to-protect claim is unaltered.
As to the failure-to-intervene claims, Davis now cites to photographs that he contends
demonstrate that he was stabbed in the neck with the shank and suffered cuts, scrapes, abrasions,
and bruising while he fought with inmate Jones on the floor after inmate Jones threw the hot water.
See DE 245-2 and -3. This new evidence alters the Court’s prior grant of summary judgment on
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the failure-to-intervene claims, which was based on the lack of any evidence that the Deputies’
non-intervention in the fight caused Davis injury.
Davis faults Deputy Thompkins, who was inside the vestibule where the fight occurred,
for failing to intervene. Deputy Thompkins responds that there is a reasonable explanation for his
delay in intervening in that he was caught off guard after some of the hot water landed on him.
His explanation for failing to intervene is a matter to be presented to the jury. He also responds
that there was insufficient time for him to intervene, as the fight was brief. The duration of the
fight is unclear from this record, but it was long enough for Deputy Jones, who was not in the
vestibule, to hear what sounded like fighting, for Deputy Jones to alert another deputy about the
sounds of fighting, and for the other deputy to respond by entering the vestibule and breaking up
the fight. See DE 229 and 249 ¶¶ 45, 46. Whether Deputy Thompkins had sufficient time to
intervene is a matter for the jury to resolve.
If Deputy Thompkins was in a position to intervene to protect Davis and failed to do so,
he is not entitled to qualified immunity. See Woodyard v. Ala. Dep’t of Corr., 700 F. App’x 927,
934 (11th Cir. 2017) (explaining that, for the purpose of overcoming qualified immunity for a
failure-to-intervene claim, “our precedents have made clear, repeatedly, that the Constitution
requires that prison officials take reasonable measures to protect the safety of the inmates”). Upon
reconsideration and in light of the new evidence, there is a genuine issue of material fact that
precludes summary judgment on the failure-to-intervene claim against Deputy Thompkins.
Deputy Jones was not in the vestibule when the fight occurred.3 DE 229 and 249 ¶ 45. She
heard what sounded like fighting and alerted another deputy about the sounds of fighting, and the
3
In his statement of material facts, Davis disputes what Deputy Jones was doing at the time but does not dispute that
she was not in the vestibule. DE 229 and 249 ¶ 45. The fact that she was not in the vestibule is uncontroverted and
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other deputy responded to break up the fight. Id. ¶¶ 45, 46. Davis provides no authority for a
proposition that Deputy Jones failing to respond herself—when she was not in the room where the
fight occurred, did not see the fight, did not know precisely what was happening and only heard
what sounded like fighting, alerted another deputy about the sounds of fighting, and knew that the
other deputy was responding—was a violation of clearly established law. Davis has not carried
his burden to show that Deputy Jones is not entitled to qualified immunity. See Keating v. City of
Miami, 598 F.3d 753, 762 (11th Cir. 2010) (“Once an officer raises the defense of qualified
immunity, the plaintiff bears the burden to show that the officer is not entitled to it.”). The Court’s
prior conclusion that Deputy Jones is entitled to qualified immunity and summary judgment on the
failure-to-intervene claim is unaltered.
In summary, on reconsideration the Court amends its Summary Judgment Order and denies
Deputy Thompkins summary judgment on the civil rights claims under 42 U.S.C. § 1983 for
failure to protect and failure to intervene. Deputy Jones is granted summary judgment on the
failure-to-protect and failure-to-intervene claims.
B.
Negligence Claims
Davis raises negligence claims under Florida law against Deputies Thompkins and Jones
and Sheriff Bradshaw. Correctional officers owe a duty of reasonable and ordinary care to prevent
injuries to prisoners and may be held liable for failing to use reasonable care to prevent injuries
that could be reasonably foreseen. Dep’t of Health & Rehab. Servs. v. Whaley, 574 So. 2d 100,
is deemed admitted. See Fed. R. Civ. P. 56(e)(2); Southern District of Florida Local Rule 56.1(c). Davis cites no
evidence that supports his repeated assertions that Deputy Jones “stood by and watched” while the fight occurred.
See DE 248 at 8-10.
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103-04 (Fla. 1991); Spann v. State of Fla., Dep’t of Corr., 421 So. 2d 1090, 1091-92 (Fla. 4th Dist.
Ct. App. 1982).
Holding Deputies Thompkins and Jones liable for negligence requires a different showing
than holding Sheriff Bradshaw liable for negligence.
No officer, employee, or agent of the state or of any of its subdivisions shall be held
personally liable in tort or named as a party defendant in any action for any injury
or damage suffered as a result of any act, event, or omission of action in the scope
of her or his employment or function, unless such officer, employee, or agent acted
in bad faith or with malicious purpose or in a manner exhibiting wanton and willful
disregard of human rights, safety, or property.
Fla. Stat. § 768.28(9)(a). “Florida courts have interpreted this statute to require a showing of actual
malice, where the conduct is worse than gross negligence, and more reprehensible and
unacceptable than mere intentional conduct.” Barnett v. MacArthur, 715 F. App’x 894, 904 n.9
(11th Cir. 2017) (citation and quotation marks omitted); see also Gurrera v. Palm Beach Cnty.
Sheriff’s Off., 657 F. App’x 886, 892 (11th Cir. 2016) (“Florida courts equate bad faith with the
actual malice standard.”).
For the same reasons that there exist genuine issues for trial on the § 1983 claims against
Deputy Tompkins, there exist genuine issues as to whether he “acted in bad faith or with malicious
purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or
property.” As discussed above, there is evidence that the jury could construe as indicating that
Deputy Thompkins was aware that inmate Jones was going to throw hot water at Davis. If Deputy
Thompkins was so aware and failed to act to protect Davis, the jury could find bad faith,
maliciousness, or wanton and willfulness. Thus, there is a genuine issue of material fact that
precludes summary judgment on the negligence claim against Deputy Thompkins.
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Summary judgment is appropriate on the negligence claim against Deputy Jones for the
same reasons that summary judgment is appropriate on the § 1983 claims against her. As discussed
above and in the prior Summary Judgment Order, Davis has pointed to no evidence that Deputy
Jones was aware that inmate Jones would throw hot water at Davis, that inmate Jones would attack
him in any other manner, or that any other inmate would harm him. And, although Deputy Jones
did not herself respond when she heard what sounded like fighting, she alerted another deputy
about the sounds of fighting and knew that the other deputy was responding. The Court sees no
evidence from which the jury could conclude that Deputy Jones “acted in bad faith or with
malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety,
or property.” Deputy Jones is granted summary judgment on the negligence claim.
As an alternative to holding Deputies Thompkins and Jones liable for negligence, Davis
sues Sheriff Bradshaw in his official capacity for the negligence of his employees. Without a
showing that an “act or omission was committed in bad faith or with malicious purpose or in a
manner exhibiting wanton and willful disregard of human rights, safety, or property,” the
exclusive remedy for injury or damage suffered as a result of an act, event, or
omission of an officer, employee, or agent of the state or any of its subdivisions or
constitutional officers shall be by action against the governmental entity, or the
head of such entity in her or his official capacity, or the constitutional officer of
which the officer, employee, or agent is an employee.
Fla. Stat. § 768.28(9)(a).
Based on the evidence, there is at least one series of actions that a jury could conclude
supports a finding of negligence by an employee of Sheriff Bradshaw.4 As detailed in the prior
4
The Court takes no position on whether other actions by Deputies Thompkins and Jones could also support findings
of negligence. For the purpose of ruling on the instant Summary Judgment Motion, it is sufficient to conclude that
there exists at lease one series of actions that could support a finding of negligence.
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Summary Judgment Order, Deputy Thompkins was letting inmates out of their cells to go to the
recreation area and did not ensure that the inmates were handcuffed, which violated the jail policy
that inmates are to be handcuffed when they are not in their cells or the recreation area. DE 239
at 2; DE 229 and 249 ¶¶ 30, 30. While inmate Jones was on his way to the recreation area and
while he was unhandcuffed, he was permitted to obtain a cup of extremely hot water. DE 239 at
2; DE 229 and 249 ¶¶ 32, 35-37. A jury could conclude that allowing inmate Jones to have a
substance that could be used as a weapon, while unhandcuffed, was a breach of the duty of
reasonable care.
Defendants assert that inmate Jones could have obtained the hot water and thrown it at
Davis even if he had been handcuffed. However, they have cited to no evidence to support this
argument. See DE 244 at 17. They also assert that it was not reasonably foreseeable that inmate
Jones would harm anyone with the hot water. That is a matter for the jury to resolve. See McCain
v. Fla. Power Corp., 593 So. 2d 500, 504 (Fla. 1992) (explaining that foreseeability as it relates to
the causation element of a negligence claims is generally a matter for the jury). There is a genuine
issue of material fact that precludes summary judgment on the negligence claim against Sheriff
Bradshaw.
III.
CONCLUSION
For the foregoing reasons, Plaintiff Charles Davis, II’s Motion to Alter or Amend Summary
Judgment [DE 245] is GRANTED. Defendants Sheriff Ric Bradshaw, Deputy Narda Jones, and
Deputy Horace Thompkins’s Amended Renewed Motion for Final Summary Judgment [DE 244]
is GRANTED IN PART AND DENIED IN PART. Deputy Jones is GRANTED summary
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judgment on Counts I and III of the Second Amended Complaint. Deputy Thompkins and Sheriff
Bradshaw are DENIED summary judgment on Counts I, II, and IV.
This matter is REFERRED to Magistrate Judge Bruce E. Reinhart for a Settlement
Conference. The date and time of the Settlement Conference will be set by Judge Reinhart by
separate order.
DONE and ORDERED in Chambers, West Palm Beach, Florida, this 25th day of
September, 2020.
_______________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE
Copies furnished to: Counsel of Record
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