Brown v. The Geo Group, Inc et al

Filing 201

ORDER ADOPTING 196 REPORT AND RECOMMENDATION granting 123 Motion for Summary Judgment filed by The Geo Group, Inc. Any pending motions are DENIED AS MOOT. Final Judgment will be entered in favor of Defendants in a separate order. Certificate of Appealability: No Ruling. Signed by Judge Robin L. Rosenberg on 9/2/2021. See attached document for full details. (scn)

Case 9:18-cv-80026-RLR Document 201 Entered on FLSD Docket 09/02/2021 Page 1 of 5

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 9:18-CV-80026-ROSENBERG/REID
KRIS K. BROWN,
Plaintiff,
v.
THE GEO GROUP, INC. et al.,
Defendants.
___________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION
THIS CAUSE is before the Court upon the Defendants’ Motion for Summary Judgment
[DE 123]. On October 2, 2019, the Court referred the case to the Honorable Magistrate Judge
Lisette M. Reid for a Report and Recommendation (“R&R”) on all pretrial and dispositive matters
[DE 22]. On August 18, 2021, Judge Reid issued a Report and Recommendation [DE 196]
recommending the Court GRANT Defendants’ Motion for Summary Judgment. Plaintiff timely
filed an Objection to the R&R on August 30, 2021. DE 200.
The Court has reviewed de novo the R&R, Plaintiff’s Objection, and the record. See
Williams v. McNeil, 557 F.3d 1287, 1291 (11th Cir. 2009) (citing 28 U.S.C. § 636(b)(1)). The
Court finds the factual determinations in the R&R to be thorough, exhaustive, and supported by
substantial evidence on the record. Further, the R&R’s legal analysis and conclusions are wellreasoned and correct. The Court therefore adopts the R&R.
Plaintiff’s Objection addresses his Equal Protection claim. Plaintiff claims that (1) his
assault was a hate crime based on his sexual orientation [DE 200 at 5] and that it was not properly
investigated under the Prison Rape Elimination Act [DE 200 at 7], (2) there is a homophobic

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Case No. 9:18-cv-80026-Rosenberg/Reid
culture at South Bay [DE 200 at 9], and (3) the GEO group not only inadequately investigated
Plaintiff’s assault [DE 200 at 12] but also tampered with and spoliated evidence [DE 200 at 13].
With respect to Plaintiff’s Objection, when the entire record is viewed in the light most
favorable to the Plaintiff, Plaintiff’s allegations fail to raise a genuine issue of material fact. The
Complaint alleges as follows: Plaintiff, who is gay, sat down with another inmate, who is also gay,
to watch a game in the recreation yard. DE 57 at 3. Another inmate sitting nearby told Plaintiff
and the other inmate that they needed to go on the track with “that gay shit, all that kissing, and
fag shit.” DE 57 at 3. At the time, Plaintiff saw only one correctional officer, who appeared to be
engaged in a conversation with other inmates. DE 57 at 4. Plaintiff was then attacked by other
inmates and later hospitalized for his injuries. DE 57 at 5. Plaintiff alleges that Defendants do not
“perceive gay bashing as a serious offense” and “as a result, [GEO] Group conducted a superficial
investigation, which it closed without doing any real investigation,” in violation of its statutory
obligations. DE 57 at 5.
To succeed on an Equal Protection claim in the absence of a facially discriminatory policy,
a plaintiff must prove “disparate impact,” which consists of two elements. First, the governmental
decision maker must have intentionally acted in a discriminatory manner—that is, “because of,
and not merely in spite of, its effects upon an identifiable group.” Morrissey v. United States, 871
F.3d 1260, 1271 (11th Cir. 2017). Second, the action must have produced the desired
discriminatory effect—or the “disparate impact.” Washington v. Davis, 426 U.S. 229, 242 (1976).
In this context, a “prisoner must demonstrate that (1) he is similarly situated to other prisoners who
received more favorable treatment; and (2) the state engaged in invidious discrimination against
him based on race, religion, national origin, or some other constitutionally protected basis.” Sweet
v. Sec’y Dep’t of Corrs., 467 F.3d 1311, 1318–19 (11th Cir. 2006). The discrimination must be

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intentional or purposeful: “Even arbitrary administration of [prison regulations], without
purposeful discrimination, does not violate the equal protection clause.” E & T Realty v. Strickland,
830 F.2d 1107, 1114 (11th Cir. 1987) (citations omitted).
Here, Plaintiff alleges that Defendants performed merely a cursory investigation of his
assault because of Plaintiff’s sexual orientation. DE 57 at 6. The R&R finds that Plaintiff cannot
succeed on his Equal Protection claim because he has not shown disparate treatment in the
investigation of his case. Judge Reid found:
[T]here is no dispute that GEO Group investigated Plaintiff’s assault, assisted him
in identifying the perpetrators, and sent the matter to the OIG for further
investigation. Specifically, by August 2, 2015, SBCF investigators identified three
suspects, and Supervisor Haslem wrote three memoranda to Warden Stine,
describing the background of these inmates. These inmates were placed in
administrative confinement pending investigation surrounding Plaintiff’s assault. It
was further recommended that Plaintiff be special reviewed against these inmates,
meaning that were not to be placed in the same prison as Plaintiff. This evidence
does not show any indication of discrimination or a failure to investigate by GEO
Group.
DE 196 at 35–36 (internal citation omitted). Plaintiff contests this summary of the investigation as
misleading because it fails to address that (1) Plaintiff only saw the photo lineup once; (2)
Defendants did not take any witness statements; and (3) that Haslem’s memos do not address the
assault. DE 200 at 20–21. Plaintiff also alleges that the discovery materials provided by Defendants
do not comport with Plaintiff’s description of the events. DE 200 at 22. Plaintiff construes these
discrepancies to suggest that Defendants tampered with evidence, although there is no further basis
to substantiate such a claim. DE 200 at 23.
The factual record suggests anything but a cursory investigation. It is undisputed that
Defendants identified suspects, placed those suspects in administrative confinement, wrote
different memoranda describing the background of these suspects, submitted the matter to the

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proper investigative authority, and moved Plaintiff to a facility away from the suspects. DE 196 at
35–36.
Plaintiff further alleges that the homophobic culture at South Bay Correctional
demonstrates discriminatory intent. Plaintiff alleges, and it is undisputed, that:
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He received no inquiry about his sexual orientation on arrival.
He received no orientation about equal treatment for LGBT inmates.
He saw no posters about “zero tolerance.”
He saw gay inmates segregated for their own protection and to avoid gangs and observed
officers watching this behavior.
He heard straight inmates and officers call gay inmates “faggot, particularly at mealtime,”
but also “just generally.”
He saw gay inmates segregated from straight inmates at meals – “no straight inmates would
sit with gay inmates at meals.”
He saw gay inmates forced to go to the end of the pill line for medications and saw officers
laugh at this “and did not intervene.”
He saw gay inmates forced to “go last” for haircuts and heard officers say that gay inmates
should be “grateful” they received a haircut at all.

DE 200 at 18 (internal citations omitted).
Taken as true, these allegations are certainly concerning but they do not reveal how
Plaintiff was treated differently because of his sexual orientation in the course of the investigation.
See generally Prescott v. Florida, 343 F. App’x 395 (11th Cir. 2009) (holding that plaintiffs failed
to allege that similarly situated persons had been treated disparately, as required to state an equal
protection claim against numerous state and county officials). Furthermore, these allegations fail
to show how Plaintiff was treated differently from similarly situated individuals. Plaintiff does
“not describe any investigations of assaults on heterosexual prisoners to show that he was treated
differently based on his sexual orientation.” DE 196 at 35. Allegations of a homophobic culture
alone are not enough.

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Case No. 9:18-cv-80026-Rosenberg/Reid
Without a showing that Plaintiff was treated differently from other similarly situated
prisoners, Plaintiff cannot succeed in his equal protection claim. The Court agrees with Judge
Reid’s findings that Plaintiff has not put forth facts sufficient to show disparate treatment.
Accordingly, it is ORDERED and ADJUDGED as follows:
1.

The R&R [DE 196] is ADOPTED.

2.

Defendants’ Motion for Summary Judgment [DE 123] is GRANTED.

3.

Any pending motions are DENIED AS MOOT.

4.

Final Judgment will be entered in favor of Defendants in a separate order.

DONE AND ORDERED in Chambers at West Palm Beach, Florida this 2nd day of
September, 2021.

ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE
Copies furnished to: counsel of record

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