Simmons v. Williams et al

Filing 93

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DENY Plaintiff's 71 , 72 , 73 and 75 MOTIONS for Judgment as a Matter of Law; GRANT in part and DENY in part Defendants' 41 MOTION to Dismiss; DENY Plaintiff's 46 MOTION for Default Judgment and 83 MOTION for Preliminary Injunction. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered (Objections to R&R due by 8/23/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 8/9/2017. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

ANTONIO SIMMONS,
Plaintiff,

CIVIL ACTION NO.: 6:14-cv-111

v.
WARDEN STANLEY WILLIAMS; JAMES
DEAL; WAYNE JOHNSON; ERIC
SMOKES; JOHNNY DAVIS; RONNIE
BYNUM; CURTIS WHITFIELD; ANTONIO
ABALOS; JOHNATHAN SANTIAGO;
ZECHARIAH JONES; PAUL GRIFFIN; and
ANDREW MCFARLANE,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at Smith State Prison in Glennville, Georgia, filed this
cause of action pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1, et seq., contesting certain conditions of his
confinement.

Defendants filed a Motion to Dismiss, (doc. 41), to which Plaintiff filed a

Response, (doc. 54). In addition, Plaintiff filed a Motion for Default Judgment, (doc. 46), four
Motions for Judgment as a Matter of Law, (docs. 71, 72, 73, 75), and a Motion for Injunction,
(doc. 83).
The Court should DENY Plaintiff’s Motion for Default Judgment, (doc. 46), DENY
Plaintiff’s Motions for Judgment as a Matter of Law, (docs. 71, 72, 73, 75), and DENY
Plaintiff’s Motion for Injunction, (doc. 83). Further, for the reasons which follow, the Court

should GRANT in part and DENY in part Defendants’ Motion to Dismiss, (doc. 41).
Specifically, I RECOMMEND the following:
•

The Court should GRANT Defendants’ Motion to Dismiss Plaintiff’s retaliation and
forced shaving claims. Due to Plaintiff’s failure to exhaust his administrative remedies as
to those claims, the Court should DISMISS those claims WITHOUT PREJUDICE.

•

The Court should GRANT Defendant’s Motion to Dismiss Plaintiff’s Procedural Due
Process Claims, and DISMISS those claims for failure to state a claim.

•

The Court should GRANT IN PART AND DENY IN PART Defendants’ Motion to
Dismiss Plaintiff’s RLUIPA claims based on the exposure of Plaintiff’s awrah. The
Court should DISMISS Plaintiff’s RLUIPA claims for monetary relief, but his RLUIPA
claims for injunctive and declaratory relief based on the exposure of his awrah should
remain pending against Defendants Abalos, Davis, Griffin, Santiago, and Whitfield.

•

The Court should GRANT IN PART AND DENY IN PART Defendants’ Motion to
Dismiss Plaintiff’s First Amendment claims based on the exposure of his awrah. The
Court should DISMISS Plaintiff’s First Amendment claims for monetary relief based on
the exposure of his awrah, but his First Amendment claims based on the exposure of his
awrah for injunctive and declaratory relief should remain pending against Defendants
Abalos, Davis, Griffin, Santiago, and Whitfield.

•

The Court should GRANT IN PART AND DENY IN PART Defendants’ Motion to
Dismiss Plaintiff’s Fourth Amendment claims. The Court should DISMISS Plaintiff’s
Fourth Amendment claims for monetary relief, but Plaintiff’s Fourth Amendment claims
for injunctive and declaratory relief against Defendants Abalos, Whitfield, and Santiago
should remain pending.

2

•

The Court should DENY Defendants’ Motion to Dismiss Plaintiff’s Eighth Amendment
excessive force claims. Plaintiff’s excessive force claim based on the use of pepper spray
should remain pending against Defendants Abalos and Whitfield. Plaintiff’s excessive force
claim based on the use of a “chicken wing maneuver” should remain pending against Abalos,
Whitfield, and Santiago.

•

The Court should DENY Defendants’ Motion to Dismiss Plaintiff’s Eighth Amendment
failure to intervene claims. Plaintiff’s claims for failure to intervene during the use of pepper
spray and during the use of a “chicken wing maneuver” should remain pending against

Defendants Williams, Deal, Johnson, McFarlane, Smokes, Davis, and Griffin. Plaintiff’s
failure to intervene claim during the use of pepper spray should also remain pending
against Defendant Santiago.
•

The Court should DENY Defendants’ Motion to Dismiss Plaintiff’s Eighth Amendment
deliberate indifference to medical needs claims. These claims should remain pending against
Defendants Whitfield, Santiago, Griffin, Abalos, Williams, Deal, Smokes, Johnson, and

McFarlane.
•

The Court should GRANT Defendants’ Motion to Dismiss Plaintiff’s Eighth
Amendment conditions of confinement claims and DISMISS those claims for failure to
state a claim.

•

The Court should DENY Defendants’ Motion to Dismiss Plaintiff’s supervisory liability
claims as Plaintiff does not base his claims on Defendants’ mere supervisory position.

3

BACKGROUND 1
Plaintiff contends that Defendants Whitfield, Santiago, Abalos, Griffin, Williams, Deal,
Johnson, McFarlane, and Smokes subjected him to two instances of excessive force on April 12,
2013, during a shakedown of his dormitory, which led to a spate of additional constitutional
violations. Specifically, Plaintiff asserts that Defendants Whitfield and Santiago led Correctional
Emergency Response Team (“CERT”) officers 2 to his cell while he and his cellmate were
reading the Qu’ran. (Doc. 1, p. 6.) Defendant Santiago then ordered Plaintiff to submit to a
body cavity search, which required Plaintiff to remove his clothes, bend over at the waist, and
spread his buttocks so officers could visually inspect his anal cavity. (Id.) Plaintiff contends he
informed Defendant Santiago that his religious beliefs prohibited him from being naked in the
presence of another man and he, therefore, could not comply with the search. (Id. at p. 7.)
Plaintiff requested that Defendants allow him to comply in an alternate manner. (Id.)
Following Plaintiff’s request, Defendant Whitfield agreed to conduct the search in a
manner comporting with Plaintiff’s beliefs. (Id. at p. 9.) Shortly thereafter, however, Defendant
Whitfield directed Defendant Abalos to spray Plaintiff with pepper spray. (Id. at p. 10.) After
Defendant Abalos sprayed Plaintiff, Defendants left Plaintiff in his cell for thirty to forty-five
minutes.

During this period of time, Plaintiff could not breathe and intermittently lost

consciousness. Plaintiff avers that Defendants ignored his requests for medical attention during
this time. After this time passed, the CERT team returned to Plaintiff’s cell and threatened to
spray him again if he did not comply with the body cavity search. (Id. at pp. 11–12.) Plaintiff

1

The Court takes the recited allegations from Plaintiff’s Complaint, (doc. 1), accepts them as true, and
views them in the light most favorable to Plaintiff, as it must at this stage.
2

Plaintiff lists Defendants Whitfield, Abalos, Santiago, Jones, and Griffin as members of the CERT
team. Accordingly, the Court construes Plaintiff’s allegations against the “CERT team” as against each
of these Defendants.
4

then submitted to a body cavity search “under force[,] [ ] threat, duress[,] and coercion.” (Id. at
p. 12.) Plaintiff alleges Defendants Williams, Deal, Johnson, McFarlane, and Smokes watched
these events unfold but did nothing. (Id.)
After Defendant Abalos conducted the body cavity search, unnamed officers placed
Plaintiff in a shower without running water for ten to fifteen minutes. (Id. at p. 13.) Plaintiff
was “left inside [the] shower burning and unable to see.” (Id.) While in the shower, he “pleaded
for the help and assistance of Warden Williams, James Deal, and Captain McFarlane” but his
“[pleas and cries] went unanswered.” (Id.) CERT team officers later placed Plaintiff in a
functional shower, but the water temperature was too hot and intensified Plaintiff’s burning and
pain. (Id.) When Plaintiff called to Defendant Williams from the shower in pain, Defendant
Williams replied that Plaintiff should have complied with orders.

(Id.)

Plaintiff asserts

Defendants Williams, Deal, and McFarlane knew he was in pain and in need of medical attention
but did nothing to help him.
After his shower, the CERT team attempted to escort Plaintiff to the medical unit.
However, Plaintiff fainted during this escort. (Id. at p. 14.) Defendants Abalos and Santiago
then dragged Plaintiff to the medical unit using the “chicken wing” maneuver, which dislocated
Plaintiff’s shoulder. While being dragged to the shower and to the medical unit, Plaintiff’s
“awrah” 3—which he describes as the area between his waist and knees—was exposed because
prison staff provided him only one pair of white boxer shorts to wear. (Id. at pp. 12, 14.) Upon
his arrival to the medical unit, medical staff provided no medical treatment to Plaintiff. (Id. at
p. 15.) Following these events, Plaintiff was not allowed to clean or sanitize his cell for one to

3

Plaintiff uses the word “aura”, but it appears “awrah” is the correct spelling of this word in the given
context. See http://www.bbc.co.uk/religion/religions/islam/beliefs/hijab_1.shtml#h4 (last visited July 24,
2017).
5

two weeks, even though the cell, his bedding, and his belongings were covered in pepper spray.
As a result, Plaintiff’s skin broke out in rashes and hives. (Id. at p. 16.)
Plaintiff alleges that, shortly thereafter, Defendants launched a campaign of retaliation
against him.

First, Defendant Abalos served a false disciplinary report upon Plaintiff

immediately following Plaintiff’s body cavity search. While serving this disciplinary report on
Plaintiff, Defendant Abalos reminded Plaintiff that he had been told to withdraw his previouslyfiled grievances. (Id.) Following this encounter, Plaintiff called the Prison Rape Elimination
Act (“PREA”) hotline and reported the alleged sexual assault and misconduct by the officers
during his body cavity search. (Id.) Plaintiff asserts that, after calling the PREA hotline, he filed
another grievance pertaining to those events on April 15, 2013.
Two days later, Defendant Johnson threatened to file disciplinary reports against Plaintiff
in response to Plaintiff’s utilization of the PREA hotline and for filing another grievance. (Id. at
p. 17.) Plaintiff alleges he then received another false disciplinary report from Defendant
Johnson. Plaintiff contends that, during the disciplinary hearings on these two disciplinary
reports, Defendant Bynum denied his rights to call witnesses and to present evidence. Plaintiff
alleges Defendant Bynum then imposed severe and unconstitutional punishment on him for the
purpose of retaliation, including nine (9) months’ outdoor recreation restriction and 450 days’
commissary, telephone, and package restrictions.

According to Plaintiff, the sanctions he

received “resulted in conditions of confinement that are much worse than what is normal for
prisoners.” (Id. at p. 19.)
Plaintiff also sets forth related events which allegedly occurred from June 13, 2013,
through April 3, 2014. Plaintiff characterizes these events as another campaign of retaliation by
Defendants in response to his filing of grievances. Specifically, Plaintiff claims Defendants

6

Williams and Johnson approached him on June 14, 2013, stated that the grievances Plaintiff filed
had gotten Plaintiff “in trouble,” and warned that Plaintiff should stop if he “knew what was
best” for him. (Id. at p. 21.) Plaintiff also states Defendants Abalos and Jones “harassed and
threatened” him while he was in the intake area on June 19, 2013. Plaintiff then alleges
Defendants Williams and Deal threatened him on July 5, 2013, based on the grievances and other
paperwork Plaintiff had filed. According to Plaintiff, Defendants Williams and Smokes then
came to his cell and threatened him on July 30, 2013. Plaintiff contends Defendant Williams
told Plaintiff he would have the CERT officers (including Defendants Whitfield, Santiago,
Abalos, Griffin, and Jones) hurt him and that Defendant Williams was trying to find a
“justifiable” way to kill Plaintiff. (Id.)
As laid out above, Plaintiff maintains Defendants harassed and threatened him over the
course of several months, yet failed to follow through on their threats. (Id. at pp. 22–25.)
However, Plaintiff claims Defendants took several retaliatory actions against him following these
initial threats.

First, Defendants forced him to shave, in violation of his religious beliefs.

Second, Defendant Davis performed a “shakedown” of his cell on November 4, 2013, and took a
portion of Plaintiff’s property. Defendant Davis forced Plaintiff to shave on this same date and
“said something about the papers [he] filed.” (Id. at p. 23.) Finally, Plaintiff claims he was
removed from his cell on February 6, 2014, and placed in a “hard cell” for no apparent reason.
According to Plaintiff, a hard cell is a “punishment cell[,]” and his placement in this cell was
retaliatory. (Id. at p. 24.)
On April 29, 2015, I issued a Report and Recommendation recommending that the Court
dismiss the following claims: official capacity claims for monetary relief, sexual abuse claims,
stand-alone verbal threat claims, substantive due process claims, deprivation of property claims,

7

and RLUIPA claims for monetary damages. (Doc. 9.) However, I found that Plaintiff stated
claims for violation of his rights to procedural due process, non-monetary RLUIPA claims, First
Amendment free exercise and retaliation claims, excessive force claims, supervisory liability
claims, and Fourth Amendment claims. Id. Accordingly, I ordered that the Complaint be served
on Defendants Bynum, Whitfield, Abalos, Santiago, Williams, Smokes, Griffin, Deal, Johnson,
Davis, Jones, and McFarlane. Id.
DISCUSSION
Defendants set forth several grounds for dismissal of Plaintiff’s Complaint.

First,

Defendants contend Plaintiff failed to exhaust his retaliation claims and his Eighth Amendment
claims regarding the forced shaving of his beard. (Doc. 41-1, p. 8.) Defendants further argue
that Plaintiff fails to set forth a viable procedural due process claim, RLUIPA claim, First
Amendment free exercise claim, Fourth Amendment claim, retaliation claim, supervisory
liability claim, and Eighth Amendment excessive force, failure to intervene, and deliberate
indifference claims.

(Id. at pp. 13–31.) Finally, Defendants maintain they are entitled to

qualified immunity and that Plaintiff is not entitled to injunctive relief. (Id. at pp. 35–37.)
I.

Exhaustion of Administrative Remedies
A.

Standard of Review

The determination of whether an inmate exhausted his available administrative remedies
prior to filing a cause of action in federal court is a matter of abatement and should be raised in a
motion to dismiss. Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008). “Because exhaustion
of administrative remedies is a matter in abatement and not generally an adjudication on the
merits, an exhaustion defense . . . is not ordinarily the proper subject for a summary judgment;
instead, it should be raised in a motion to dismiss, or be treated as such if raised in a motion for

8

summary judgment.” Id. at 1374–75 (internal citation omitted). “Even though a failure-toexhaust defense is non-jurisdictional, it is like” a jurisdictional defense because such a
determination “ordinarily does not deal with the merits” of a particular cause of action. Id.
at 1374 (internal punctuation and citation omitted).

Further, a judge “may resolve factual

questions” in instances where exhaustion of administrative remedies is a defense before the
court. Id. In these instances, “it is proper for a judge to consider facts outside of the pleadings
and to resolve factual disputes so long as the factual disputes do not decide the merits and the
parties have sufficient opportunity to develop a record.” Id. at 1376.
In Turner v. Burnside, 541 F.3d 1079 (11th Cir. 2008), the Eleventh Circuit Court of
Appeals set forth a “two-step process” that lower courts must employ when examining the issue
of exhaustion of administrative remedies. First, the court is to take the plaintiff’s version of the
facts regarding exhaustion as true. Id. at 1082. If, even under the plaintiff’s version of the facts,
the plaintiff has not exhausted, the complaint must be dismissed. Id. However, if the parties’
conflicting facts leave a dispute as to whether plaintiff has exhausted, the court need not accept
all of plaintiff’s facts as true. Id. Rather, “the court then proceeds to make specific findings in
order to resolve the disputed factual issues[.]” Id. “Once the court makes findings on the
disputed issues of fact, it then decides whether under those findings the prisoner has exhausted
his available administrative remedies.” Id. at 1083. The Eleventh Circuit has held that a district
court may consider materials outside of the pleadings and resolve factual disputes regarding
exhaustion in conjunction with a Rule 12(b)(6) motion to dismiss so long as the factual disputes
do not decide the merits of the case. See Bryant, 530 F.3d at 1376–77.

9

B.

Legal Requirements for Exhaustion

Where Congress explicitly mandates, prisoners seeking relief for alleged constitutional
violations must first exhaust inmate grievance procedures before filing suit in federal court. See
Porter v. Nussle, 534 U.S. 516, 524 (2002). Section 1997e(a) of Title 42 of the United States
Code states, “No action shall be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law . . . until such administrative remedies as are available are
exhausted.”

In Porter, the United States Supreme Court held that exhaustion of available

administrative remedies is mandatory. Porter, 534 U.S. at 523; see also O’Brien v. United
States, 137 F. App’x 295, 301–02 (11th Cir. 2005) (finding lack of exhaustion where prisoner
“prematurely filed his civil complaint . . . and . . . ‘failed to heed that clear statutory command’
requiring that his administrative remedies be exhausted before bringing suit”). Additionally, the
Supreme Court recently “held that the PLRA’s [Prison Litigation Reform Act’s] text suggests no
limits on an inmate’s obligation to exhaust—irrespective of any ‘special circumstances.’ And
that mandatory language means a court may not excuse a failure to exhaust, even to take such
circumstances into account.” Ross v. Blake, ___ U.S. ___, 136 S. Ct. 1850, 1856–57 (June 6,
2016).
The requirement that the exhaustion of remedies occur “first in an agency setting allows
‘the agency [to] develop the necessary factual background upon which decisions should be
based’ and giv[es] ‘the agency a chance to discover and correct its own errors.’” Green v. Sec’y
for Dep’t of Corr., 212 F. App’x 869, 871 (11th Cir. 2006) (quoting Alexander v. Hawk, 159
F.3d 1321, 1327 (11th Cir. 1998) (first alteration in original)).

Furthermore, requiring

exhaustion in the prison setting “eliminate[s] unwarranted federal-court interference with the
administration of prisons” and allows “corrections officials time and opportunity to address

10

complaints internally before allowing the initiation of a federal case.” Woodford v. Ngo, 548
U.S. 81, 93 (2006).
The Supreme Court has noted exhaustion must be “proper.”

Id. at 92.

“Proper

exhaustion demands compliance with an agency’s deadlines and other critical procedural rules
because no adjudicative system can function effectively without imposing some orderly structure
on the course of its proceedings.” Id. at 90–91. In other words, an institution’s requirements
define what is considered exhaustion. Jones v. Bock, 549 U.S. 199, 218 (2007).
Thus, under the law, prisoners must do more than simply initiate grievances; they must
also appeal any denial of relief through all levels of review that comprise the administrative
grievance process. Bryant, 530 F.3d at1378 (“To exhaust administrative remedies in accordance
with the PLRA, prisoners must ‘properly take each step within the administrative process.’”)
(quoting Johnson v. Meadows, 418 F.3d 1152, 1157 (11th Cir. 2005)); Sewell v. Ramsey, No.
CV406-159, 2007 WL 201269 (S.D. Ga. Jan. 27, 2007) (finding that a plaintiff who is still
awaiting a response from the warden regarding his grievance is still in the process of exhausting
his administrative remedies).
Furthermore, an inmate who files an untimely grievance or simply spurns the
administrative process until it is no longer available fails to satisfy the exhaustion requirement of
the PLRA. Johnson, 418 F.3d at 1157–59; Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th
Cir. 2000) (inmate’s belief that administrative procedures are futile or needless does not excuse
the exhaustion requirement). Additionally, “[t]he only facts pertinent to determining whether a
prisoner has satisfied the PLRA’s exhaustion requirement are those that existed when he filed his
original complaint.” Smith v. Terry, 491 F. App’x 81, 83 (11th Cir. 2012).

11

C.

The Georgia Department of Corrections’ Grievance Procedure

The Georgia Department of Corrections’ grievance procedure is set forth in Standard
Operating Procedure (“SOP”) IIB05-0001. This SOP no longer requires an inmate to attempt to
informally resolve his complaint before filing a formal grievance. (Doc. 41-3, p. 6.) An inmate
can file, with a few exceptions, “a grievance about any condition, policy, procedure, or action or
lack thereof that affects the [inmate] personally.” (Id.) An inmate must submit a grievance form
“no later than 10 calendar days from the date the [inmate] knew, or should have known, of the
facts giving rise to the grievance.” (Id. at p. 9.) The warden has a period of forty (40) calendar
days from the date the inmate gave his grievance to the counselor to respond. An extension of
ten (10) calendar days can be granted once, provided the inmate is advised in writing of the
extension before the original 40 calendar days have expired. (Id. at p. 11.) An inmate can file an
appeal with the Commissioner’s Office in the following instances: if the grievance coordinator
rejects his original grievance; after the warden responds to the original grievance; or the time
allowed for the warden’s decision has expired. The inmate has seven (7) calendar days in which
to file this appeal. (Id. at p. 13.) The Commissioner has 100 calendar days after receipt to render
a decision. (Id. at p. 14.) Time limits may be waived for good cause. (Id. at p. 13.)
With these standards and procedures in mind, the Court now addresses Defendants’
arguments that Plaintiff did not exhaust his administrative remedies as to his claims against
Defendants.
D.

Assessment of Plaintiff’s Exhaustion

Defendants note Plaintiff filed multiple grievances during the time in which his
retaliation claims and forced shaving claims arose, prior to filing this cause of action on October
15, 2014. (Doc. 41-2, pp. 6–12.) Nevertheless, Defendants contend Plaintiff did not satisfy his

12

obligation to exhaust administrative remedies prior to filing suit because he failed to follow
proper grievance procedures. (Id. at pp. 8–12.) Specifically, Defendants aver that, as to his
retaliation claims, Plaintiff: (1) filed untimely grievances; (2) improperly attempted to grieve
more than one issue per grievance; and (3) asserted non-grievable issues. As to Plaintiff’s forced
shaving claims, Defendants argue that Plaintiff’s grievance was untimely filed and did not refer
to either of the two instances alleged in Plaintiff’s Complaint.

(Doc. 41-1, pp. 8–12.)

Accordingly, Defendants contend that the Court should dismiss Plaintiff’s retaliation claims and
forced shaving claims for his failure to properly exhaust administrative remedies prior to filing
suit. (Id. at p. 11.)
Plaintiff responds that he exhausted all administrative remedies available to him. 4 To the
extent Plaintiff concedes he did not complete each requisite step in the grievance procedure,
Plaintiff avers he was prevented from doing so by the policies contained within the Georgia
Department of Corrections’ (“GDC”) SOP. Specifically, Plaintiff contends that, per the SOP, he
was permitted to lodge only two grievances at a time—each of which could contain only one
issue. As Plaintiff has alleged at least ten claims pertaining to the events of April 12, 2013, he
argues that he could not fully exhaust each individual claim in the manner contemplated by the
SOP. Accordingly, Plaintiff argues that he exhausted all the administrative remedies available to
him, given the constraints of the GDC’s SOP. In the alternative, Plaintiff alleges that: (1) Smith
State Prison’s grievance procedure was “not made known” to him; and (2) Defendants submitted
“incomplete and misleading” records regarding his grievance history to create the impression
that he failed to properly exhaust his administrative remedies.
4

As to his retaliation claims, Plaintiff avers that he “stated, mentioned, demonstrated and[/]or illustrated
‘retaliation’ [in] his grievances and appeals on over thirty-five (35) occasions.” (Doc. 54-1, p. 6.) A
review of Plaintiff’s administrative filings reveals that he mentioned the terms “retaliation” and
“campaigns of retaliation” in his grievances. Notwithstanding Plaintiff’s allegations of retaliation,
however, these grievances were ultimately rejected or failed for procedural reasons.
13

Defendants respond that Plaintiff was aware of the grievance procedure in place at Smith
State Prison when his claims arose and that they have accurately presented his grievance filing
history to the Court. (Doc. 62, pp. 3–4.) As to Plaintiff’s claim that the policies within the
grievance procedure prevented him from timely exhausting each of his claims, Defendants argue
that Plaintiff has no constitutional right to a prison grievance system and, therefore, has
improperly attacked the grievance process. (Doc. 62, p. 3.) Defendants maintain that, regardless
of his characterization of the grievance procedure, Plaintiff was required to adhere to that
procedure to properly exhaust his claims.
(1)

Plaintiff’s Grievances

As of July 3, 2015, Plaintiff had filed thirty-three (33) grievances at Smith State Prison.
(Doc. 41-2, p. 6; Doc. 54-1, pp. 2, 5.) It appears that four (4) of these grievances address
Plaintiff’s retaliation and forced shaving claims. (Doc. 41-8.) Plaintiff filed the first of those
grievances, Grievance No. 148811, on May 6, 2013. (Id. at p. 2.) That grievance was rejected
because Plaintiff “grieved eleven issues that . . . happened over the course of 83 days,” and thus,
failed to follow proper grievance procedure, which required Plaintiff to grieve a single issue per
grievance and within ten days of the grievable event. (Id. at p. 3.) The second grievance,
Grievance No. 149613, was rejected because Plaintiff had two pending grievances in addition to
Grievance No. 149613, in violation of the SOP.

(Doc. 41-7, p. 3.) The third grievance,

Grievance No. 151708, was rejected because Plaintiff presented more than one issue in his
grievance, (doc. 41-8, p. 3), and the fourth grievance, Grievance No. 162747, was rejected as
untimely filed, (doc. 41-16, p. 2).

14

(2)

Whether Plaintiff’s Grievances Exhausted his Retaliation and Forced
Shaving Claims

As discussed above, Defendants argue that Plaintiff failed to properly exhaust his
retaliation and forced shaving claims because the grievances addressing those claims did not
comply with the GDC’s grievance procedure. (Doc. 41-1, pp. 8–12.) Plaintiff does not dispute
that he failed to adhere to proper grievance procedures. However, Plaintiff contends that he
should be excused from doing so because, in his view, the grievance procedure is unfair and
unconstitutional.
At the time of the events giving rise to Plaintiff’s Complaint, Smith State Prison required
that inmates: (1) submit a grievance within ten calendar days from the date the [inmate] knew, or
should have known, of the facts giving rise to the grievance; (2) present only one issue per
grievance; and (3) have no more than two pending grievances at a time. (Doc. 41-3, pp. 7, 9).
Plaintiff’s Grievances Nos. 148811 and 162747 were rejected for being untimely filed. 5
Grievances No. 151708 was rejected for grieving more than one issue per grievance. Finally,
Grievance No. 149613 was rejected because Plaintiff had two grievances pending at the time of
submission. In Woodford, the Supreme Court held that, “[i]n order to properly exhaust his
claims, a prisoner must . . . comply with any administrative ‘deadlines and other critical
procedural rules’ along the way.” See Holley v. Smith, No. CV 110-108, 2010 WL 5671758, at
*2 (S.D. Ga. Dec. 30, 2010) (citing Woodford, 548 U.S. at 90). “If a prisoner fails to complete
the administrative process or falls short of compliance with procedural rules governing prisoner
grievances, he procedurally defaults his claims.” Id. (citing Johnson v. Meadows, 418 F.3d
1152, 1159 (11th Cir. 2005)). “Put plainly, ‘a Georgia prisoner must timely meet the deadlines .

5

Grievance No. 148811 was additionally rejected because Plaintiff attempted to grieve more than one
issue in that grievance.
15

. . of Georgia’s administrative grievance procedures.”’ Id. (citing Salas v. Tillman, 162 F. App’x
918, 920 (11th Cir. 2006) (quoting Johnson, 418 F.3d at 1155).
Accordingly, even accepting as true Plaintiff’s claim that the grievance procedure is
unfair, he still failed to adhere to the applicable procedures. Therefore, under Turner step one,
Plaintiff failed to exhaust his administrative remedies as to his retaliation and forced shaving
claims. Even if the Court were required to proceed to the second Turner step, the Defendants’
account that Plaintiff failed to properly exhaust the administrative remedies as to Defendants’
retaliation and forced shaving claims is more credible than Plaintiff’s conclusory assertion to the
contrary. However, as discussed below, Plaintiff argues it was “impossible” to properly exhaust
his retaliation and forced shaving claims under the applicable SOP. Accordingly, Plaintiff
maintains that administrative remedies were unavailable to him.
(3)

Whether Administrative Remedies Were Available to Plaintiff at
the Time He Filed Suit

Construing Plaintiff’s arguments liberally, he contends that he was unable to exhaust
administrative remedies due to the confines built into the SOP.

Defendants maintain that

Plaintiff has no constitutional right to a grievance procedure and that his inability to exhaust each
of his claims simultaneously under the SOP is, therefore, inconsequential.
Though the Supreme Court rejected a “special circumstances” exception to exhaustion in
Ross, it reiterated that a prisoner need only exhaust those remedies which were available to him.
Ross, ___ U.S. ___ 136 S. Ct. 1850, 1856–57 (June 6, 2016) (“An inmate, that is, must exhaust
available remedies, but need not exhaust unavailable ones.”). The Court recognized “three kinds
of circumstances in which an administrative remedy, although officially on the books, is not
capable of use to obtain relief.”

Id.

First, the Court stated that, in some instances, the

administrative procedure “operates as a simple dead end—with officers unable or consistently
16

unwilling to provide any relief to aggrieved inmates.” Id. Thus, if the administrative procedure
lacks authority or if the officials with apparent authority “decline ever to exercise it,” the inmate
has no obligation to exhaust the remedy. Id. Second, when administrative remedies are so
confusing that they are “essentially ‘unknowable,’” exhaustion is not required. Id., ___ U.S.
___, 2016 WL 3128839, at *8 (citing Goebert v. Lee Cty., 510 F.3d 1312, 1323 (11th Cir. 2007),
and Turner, 541 F.3d at 1084). Lastly, exhaustion is not required “when prison administrators
thwart inmates from taking advantage of a grievance process through machination,
misrepresentation, or intimidation.” Id. However, the Supreme Court recognized that, “[g]iven
prisons’ own incentives to maintain functioning remedial processes, we expect that these
circumstances will not often arise.” Id., ___ U.S. ___, 2016 WL 3128839, at *7.
As discussed above, Plaintiff contends that the administrative remedies officially on the
books at Smith State Prison were not made available to him. Specifically, Plaintiff avers it was
impossible to timely exhaust each of his claims prior to filing suit. SOP IIB05-0001 provides
that an inmate may only have two active grievances pending at one time and that he may present
only one issue per grievance. (Doc. 41-3.) For example, if an inmate has more than two active
grievances, the procedure states that the inmate must drop one of the outstanding active
grievances being processed in order to file a new grievance. (Id.) There are three exceptions to
the rule that an inmate may only have two active pending grievances: (1) the additional
grievance is filed as an emergency grievance and is determined to be an emergency grievance by
the Grievance Coordinator; (2) the additional grievance involves allegations of physical abuse
with significant injury to the inmate or sexual assault; or (3) the additional grievance involves an
important issue of prison security or administration, such as a serious threat to life, health, or
safety of any person. (Id.)

17

Several courts have found that similar restrictions do not excuse an inmate from
exhausting the grievance procedure before filing suit. Howard v. Smith, No. CV606-062, 2008
WL 816685, at *5 (S.D. Ga. Feb. 28, 2008), report and recommendation adopted in pertinent
part, rejected in part, No. CV606-062, 2008 WL 816684 (S.D. Ga. Mar. 26, 2008) (rejecting
inmate plaintiff’s argument that he could not exhaust grievance procedure due to former SOP
IIB05-0001’s limit on grievances and noting that “inmates are given the opportunity to prioritize
their grievances by dismissing a pending grievance to allow the resolution of another
grievance.”); Cummings v. Crumb, 347 F. App’x 725, 727 (3d Cir. 2009) (being on grievance
restriction did not prevent inmate from exhausting his remedies); Eckard v. Glebe, No. C14-5898
RJB-KLS, 2015 WL 6507233, at *8 (W.D. Wash. Oct. 5, 2015), report and recommendation
adopted, No. C14-5898 RJB-KLS, 2015 WL 6507519 (W.D. Wash. Oct. 27, 2015) (“Because
[Plaintiff] did not abide by the limitations [the prison] places on the number of grievances that an
offender may have active at any one time, he did not properly exhaust his claim[.]”); West v.
Endicott, No. 06–C–763, 2008 WL 90622, at *8 (E.D. Wis. Mar. 31, 2008) (prison’s limit on
number of grievances “does not prohibit the filing of any complaints so much as it requires the
inmate to prioritize his claims . . . [t]he rule is not, in other words, an excuse for failure to
exhaust.”); Ciarpaglini v. Gorske, 07-C-461-S, 2007 WL 5614117 (W.D. Wis. Oct. 4, 2007)
(dismissing prisoner lawsuit for exceeding limit on number of grievances).
The reasoning behind these decisions applies with equal force in this case, where Plaintiff
alleges that he could not timely present his claims simultaneously to prison administration under
the rules of the SOP. Moreover, Plaintiff could have taken advantage of certain exceptions to the
grievance restriction rule. For example, Plaintiff could have sought a waiver of the ten-day time
limit for good cause in order to timely present each of his claims.

18

(Doc. 41-3, p. 9.)

Alternatively, Plaintiff could have dropped one of his other grievances. Finally, Plaintiff could
have asked that prison authorities consider his additional grievances because they involved
important issues of prison security or administration. Plaintiff could not simply disregard the
grievance process and then argue, after the fact, that any grievance he filed would have been
rejected. Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000) (“[T]he exhaustion
requirement cannot be waived based upon the prisoner’s belief that pursuing administrative
procedures would be futile.”). Therefore, SOP IIB05-0001’s grievance limit and restriction of
one claim per grievance did not make the prison’s grievance process unavailable to Plaintiff.
Accordingly, even assuming as true Plaintiff’s allegation that he could not timely exhaust
each of his claims simultaneously under the applicable SOP, he fails to establish that the
administrative remedies at Smith State Prison were not capable of use. Again, an inmate must
comply with the institution’s procedural rules in order to effectuate proper exhaustion. Jones,
549 U.S. at 218; Woodford, 541 U.S. at 90–92. It is not this Court’s place to second guess a
prison’s grievance rules, and an inmate cannot create unavailability by failing to abide by those
rules.
In sum, under the first Turner step, Plaintiff does not establish that prison officials were
“unable or consistently unwilling to provide any relief to aggrieved inmates,” that the grievance
process at Smith State Prison was so complicated that it was “essentially unknowable,” or that
prison officials “thwart[ed] inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” Ross, ___ U.S. ___, 136 S. Ct. at 1859–60.
Thus, even if the hurdles to exhaustion existed as Plaintiff claims, they did not rise to the height
of unavailability that the Supreme Court contemplated in Ross.

19

Plaintiff’s claims of unavailability wither even more readily when subjected to the
crucible of examination the second Turner step requires. Again, under that step, the Court
resolves any disputed factual issues and then assesses, under those findings, whether the prisoner
has exhausted his available administrative remedies. Turner, 541 F.3d 1083. Having reviewed
all of Plaintiff’s and Defendants’ filings, the Court finds Defendants’ account of the availability
of administrative remedies more credible than Plaintiff’s.
In support of their Motion to Dismiss, Defendants offer the affidavit of Smith State
Prison Grievance Coordinator Eyvette Cook, (doc. 41-2), along with Plaintiff’s grievance filing
history and copies of Plaintiff’s grievances. Grievance Coordinator Cook states that, upon
admission to Smith State Prison, all prisoners receive an oral explanation of the grievance
process and an outline of the grievance process. (Id. at p. 3.) She further testifies that all
inmates may review the entire grievance SOP, which is located in the prison’s law library. (Id.)
This account, which the Court finds to be more credible than Plaintiff’s account, contradicts
Plaintiff’s arguments that “the GDC grievance procedure was ‘not made known’ [to Plaintiff],
[and] was not published for [him].” (Doc. 54-1, p. 5.) Therefore, to the extent Plaintiff contends
that he did not know he could request a waiver of the ten-day time restriction for good cause; that
he could have dropped one of his other pending grievances; or that he could have asked for his
additional grievances to be considered because they involved an important issue of prison
security or administration, those contentions are contradicted by the ready availability of the SOP
for his review. In addition, Plaintiff’s frequent submission of grievances contradicts his claim
that he did not know how to use the grievance system. (Doc. 41-4.)
Similarly, Plaintiff’s grievance history belies any contention that prison officials thwarted
his attempts to file grievances or otherwise made the grievance process unavailable to him.

20

(Doc. 41-4.) As of July 3, 2015, Plaintiff had filed over thirty (30) grievances. (Doc. 41-2, p. 6;
Doc. 54-1, pp. 2, 5.) Pertinently, the grievance procedure at issue, SOP IIB05-0001, has been in
effect since December 10, 2012. (Doc. 41-3, p. 1); see also Velez v. Chatman, No. CV614-074,
2015 WL 649128, at *4 (S.D. Ga. Feb. 13, 2015) (“This SOP was amended with an effective
date of December 10, 2012.”).

Given Plaintiff’s extensive grievance history and Cook’s

affidavit, Plaintiff’s argument that he was somehow ignorant of Smith State Prison’s grievance
procedure or that he was prevented from using it is not credible. Wright, 562 F. App’x at 776
(“[I]t was reasonable for the district court to find that [plaintiff’s] purported ignorance of the
five-day grievance filing period was not credible, given [plaintiff’s] significant prior experiences
filing grievances and lawsuits in federal court, as well as the jail official’s affidavit stating that
each [county] inmate is given a copy of the Inmate Handbook spelling out the grievance
procedure.”)
Finally, the record contradicts Plaintiff’s claim that Defendants submitted “incomplete
and misleading” records regarding his grievance history to create the impression that he failed to
properly exhaust his claims. (Doc. 54-1, p. 7.) First, Defendants only submitted as exhibits
grievances dating after April 12, 2013, because Plaintiff’s claims arose after that date. (Doc. 62,
p. 3.) Therefore, Plaintiff’s reference to Grievance No. 145943, filed on March 20, 2013, and
addressing his prior assignment to administrative segregation, is not relevant to the claims
presented in this case. Defendants’ failure to submit a copy of that grievance or to discuss this
grievance was not misleading. Furthermore, the two additional exhibits submitted by Plaintiff to
support his argument that Defendants misrepresented his grievance-filing history—copies of
Grievance Nos. 151708 and 162747—were addressed by Eyvette Cook in her affidavit.
Moreover, all three grievances referenced by Plaintiff were included in the printout Defendants

21

submitted to the Court containing Plaintiff’s grievance filing history, (doc. 41-4). Accordingly,
Plaintiff’s claim that Defendants misled this Court by failing to accurately present his grievance
filing history is without merit.
In sum, Plaintiff filed this lawsuit without properly alerting prison officials to the facts
underlying his retaliation and forced shaving claims. An inmate must do more to resolve his
dispute within the literal walls, or at least the figurative walls, of the prison system before
seeking relief in the halls of the courthouse. Consequently, the Court should GRANT this
portion of Defendants’ Motion and DISMISS Plaintiff’s retaliation and forced shaving claims
against all Defendants without prejudice.
II.

Whether Plaintiff States Plausible Claims for Relief Against Defendants
Plaintiff asserts numerous claims against Defendants which implicate his rights under

RLUIPA, as well as his constitutional rights pursuant to the First, Fourth, Eighth, and Fourteenth
Amendments to the United States Constitution. Defendants contend that Plaintiff has failed to
state any claims upon which relief may be granted.
A.

Standard of review

Under a Rule 12(b)(6) motion to dismiss, a court must “accept[ ] the allegations in the
complaint as true and constru[e] them in the light most favorable to the plaintiff.” Belanger v.
Salvation Army, 556 F.3d 1153, 1155 (11th Cir. 2009). “A complaint must state a facially
plausible claim for relief, and ‘[a] claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.’” Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir. 2010)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A pleading that offers labels and

22

conclusions or a formulaic recitation of the elements of a cause of action” does not suffice.
Ashcroft, 556 U.S. at 678.
“The plausibility standard is not akin to a probability requirement, but it asks for more
than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts
that are merely consistent with a defendant’s liability, it stops short of the line between
possibility and plausibility of entitlement to relief.”

Id. (internal punctuation and citation

omitted). While a court must accept all factual allegations in a complaint as true, this tenet “is
inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements,” are insufficient. Id.
B.

Procedural Due Process Claim

In this action, Plaintiff contends Defendant Bynum violated his right to procedural due
process during a disciplinary hearing. 6 Specifically, Plaintiff alleges that Defendant Bynum did
not allow Plaintiff to speak at his hearing or to call witnesses, refused to view an evidentiary
video, and imposed unconstitutional sanctions. Following the hearing, Plaintiff lost nine (9)
months’ outdoor recreation time, 450 days’ commissary, telephone, and package restrictions, and
access to rehabilitative programs while confined to administrative segregation.

Plaintiff

contends he has a protected liberty interest in outdoor recreation time, access to rehabilitative

6

Plaintiff alleges that the disciplinary report that triggered his disciplinary hearing was a false report.
However, “[t]he filing of false disciplinary charges against an inmate does not alone amount to a
constitutional violation.” Collins v. Upton, No. 5:10-cv-23 (CAR), 2010 WL 1691213, at *2 (M.D. Ga.
Mar. 2, 2010) (citing Owens v. Leavins, No. 5:05CV228/SPM/EMT, 2006 WL 2640275, at *2 (N.D. Fla.
Sept. 13, 2006)). Accordingly, the veracity of Plaintiff’s underlying disciplinary report is immaterial to
whether Defendant Bynum violated his procedural due process rights at the hearing.
23

programs, and recreation, commissary, and phone privileges. He maintains he was, therefore,
entitled to proper process prior to the removal of those privileges. 7
In the Motion to Dismiss, Defendant Bynum first argues that due process did not attach to
the disciplinary proceeding at issue because that proceeding did not affect the length of
Plaintiff’s prison sentence. 8 (Doc. 41, p. 14.) In the alternative, Defendant Bynum argues that
recreation time, rehabilitative programs, and commissary, telephone, and package privileges are
not protected liberty interests under the Constitution and, therefore, Plaintiff was not entitled to
process prior to the deprivation of those privileges. (Doc. 41-1, p. 14 (citing West v. Higgins,
346 F. App’x 423, 426 (11th Cir. 2009).) Finally, Defendant Bynum argues that, even if Plaintiff
has alleged he had a protected liberty interest, Plaintiff’s appeal of Defendant Bynum’s
disciplinary hearing decision served as adequate process. (Id. at p. 15.)
An inmate states a cognizable claim for the deprivation of his procedural due process
rights under the Fourteenth Amendment when he alleges the deprivation of a constitutionally
protected liberty or property interest, state action, and constitutionally inadequate process.
Shaarbay v. Palm Beach Cty. Jail, 350 F. App’x 359, 361 (11th Cir. 2009) (citing Cryder v.
Oxendine, 24 F.3d 175, 177 (11th Cir. 1994)). “Prison disciplinary proceedings are not part of a
criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not
apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Rather, “a disciplinary proceeding,
7

Plaintiff also claims that he has a protected liberty interest in his parole eligibility and that Defendant
Bynum’s sanctions denied him that liberty interest. However, in his Complaint Plaintiff merely states that
Defendant Bynum’s sanctions “may have affected [P]laintiff[’s] parole eligibility.” (Doc. 1, p. 19.)
Because there is no allegation that Defendant Bynum actually imposed such a sanction, Plaintiff has not
shown that any loss of his parole eligibility is attributable to Defendant Bynum.
8

As discussed in the remainder of this Report and Recommendation, an inmate is entitled to procedural
due process when a change in his conditions of confinement “imposes atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484
(1995). Defendant Bynum’s contention that due process only attaches when the sanctions imposed upon
a prisoner lengthens the prisoner’s sentence is, therefore, without merit.
24

whose outcome will ‘impose[ ] atypical and significant hardship on the inmate’ must ensure the
following due process rights: (1) advance written notice of the claimed violation, (2) a written
statement by the fact finders as to the evidence relied upon and the reasons for the disciplinary
action taken, and (3) an opportunity to call witnesses and present documentary evidence in his
defense.” Asad v. Crosby, 158 F. App’x 166, 173 (11th Cir. 2005) (citing Wolff, 418 U.S. at
563–67).
“Whether an inmate has a protected liberty interest that would entitle him to due process
protections ‘is often a difficult determination in the context of a prison, because prisoners have
already been deprived of their liberty in the ordinary sense of the term.’” Jacoby v. Baldwin
Cty., 835 F.3d 1338, 1346 (11th Cir. 2016) (quoting Bass v. Perrin, 170 F.3d 1312, 1318 (11th
Cir. 1999)). However, in Sandin v. Conner, 515 U.S. 472 (1995), “the Supreme Court gave us
the test for determining whether a convicted inmate has a protected liberty interest.” Id. “This
test examines the hardship imposed on the inmate relative to the ‘basic conditions’ of prison
life.” Id. at 1346–47. “Under this test, a convicted inmate is entitled to procedural due process
in two circumstances. First, he is entitled to a measure of procedural due process when an
increased restraint ‘exceed[s] [his] sentence in such an unexpected manner as to give rise to
protection by the Due Process Clause of its own force.’” Id. at 1347 (citing Sandin, 515 U.S at
484). “Second, he is entitled to a measure of procedural due process when a change in his
conditions of confinement ‘imposes atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life.’” Id. (citing Sandin, 515 U.S at 484).
“In Sandin, the Supreme Court held that placing a convicted inmate in segregated
confinement for thirty days as discipline was not ‘a dramatic departure from the basic conditions
of [the inmate’s] indeterminate sentence’ of thirty years to life in prison.” Id. (citing Sandin, 515

25

U.S. 485). “Therefore, that inmate was not entitled [to procedural protections] before being
placed in segregation.” Id. “The Supreme Court explained that a convicted inmate’s disciplinary
segregation did not give rise to a protected liberty interest because ‘[d]iscipline by prison
officials in response to a wide range of misconduct falls within the expected perimeters of the
sentence imposed by a court of law.’” Id. (citing Sandin, 515 U.S. at 485). “The Court also said
the disciplinary segregation at issue in Sandin was ‘within the range of confinement to be
normally expected for one serving an indeterminate term of 30 years to life.’” Id. (citing Sandin,
515 U.S. at 487). “Said another way, convicted inmates have no right to a due process hearing
before being punished for disciplinary infractions unless the punishment is demonstrably harsher
than the ordinary conditions of prison life.” Id.
Courts within this Circuit have found that deprivations of certain privileges during a
prisoner’s confinement in administrative segregation for an extensive period of time may result
in an atypical or significant hardship, as contemplated by the Supreme Court in Sandin. For
example, in Johnson v. Owens, No. 5:14-CV-3, 2014 WL 6620938 (M.D. Ga. Nov. 21, 2014),
the United States District Court for the Middle District of Georgia held that a prisoner who had
been “in segregation for at least six and a half months under conditions . . . including:
deprivation of yard time; isolation; constraint by leg irons and waist chains; deprivation of
personal property, commissary, receipt of package privileges; and deprivation of participation in
educative, religious, or rehabilitative programs” had stated a liberty interest under the due
process clause. 9

Similarly, here, Plaintiff alleges that he was assigned to “long-term

segregation,” and he received sanctions including nine months’ outdoor recreation time

9

Cf. Al-Amin v. Donald, 165 F. App’x 733 (11th Cir. 2006) (thirty-month administrative confinement
not violative of due process where conditions are substantially similar to conditions of general
population).
26

restriction and 450 days’ telephone, commissary, and package restrictions. 10 (Doc. 1, p. 19.)
Construing Plaintiff’s allegations liberally in his favor, he has plausibly alleged that the
combination of conditions imposed upon him during assignment to long-term segregation
presented an atypical or significant hardship in relation to ordinary prison life and, therefore,
deprived him of liberty under the due process clause. See Wilkinson v. Austin, 545 U.S. 209,
224 (2005) (finding that, while one adverse condition standing alone may not be sufficient to
create a liberty interest, the aggregation of conditions in solitary confinement may impose an
atypical and significant hardship); Bass v. Perrin, 170 F.3d 1312, 1318 (11th Cir. 1999) (a
deprivation of two hours per week of yard time implicates a liberty interest for a prisoner in close
management); Wallace v. Hamrick, 229 F. App’x 827, 830 (11th Cir. 2007) (unpublished)
(denying motion to dismiss because prisoner’s allegations of twenty-eight day administrative
segregation with no hot water, no ventilation, no opportunity to exercise, and without timely
medical care, in violation of GDC’s policy, might be sufficient to establish a state created liberty
interest when compared to the conditions of other inmates).
Nevertheless, while Plaintiff plausibly alleges that he suffered a deprivation of liberty, he
has not plausibly alleged that he received inadequate process. Plaintiff appealed Defendant
Bynum’s disciplinary hearing decision on May 9, 2013, and the GDC’s Office of Investigations
and Compliance investigated and denied Plaintiff’s claims on June 25, 2013. (Doc. 1, pp. 49–
52.) “[E]ven if a prisoner is [ ] deprived of his liberty, thus requiring due process, it is well
established that ‘the state may cure a procedural deprivation by providing a later procedural
remedy; only when the state refuses to provide a process sufficient to remedy the procedural
10

It is not clear whether Plaintiff remained confined in long-term segregation during the entirety of his
nine-month restriction of outdoor recreation time. However, at this stage, the Court must construe all
facts in the light most favorable to Plaintiff. Fed. R. Civ. P. 12(b)(6). Accordingly, the Court will
presume that Plaintiff was denied outdoor recreation time for nine continuous months while being held in
segregation.
27

deprivation does a constitutional violation actionable under section 1983 arise.’” Baker v.
Rexroad, 159 F. App’x 61, 63 (11th Cir. 2005) (citing McKinney v. Pate, 20 F.3d 1550, 1557
(11th Cir. 1994) (en banc)). Here, the state provided a later procedural remedy which was
sufficient to remedy any procedural due process violations that occurred at Plaintiff’s
disciplinary hearing.
The Court should, therefore, DISMISS Plaintiff’s procedural due process claims.
C.

RLUIPA Claim Based on Exposure of Awrah 11

The RLUIPA provides:
No government shall impose a substantial burden on the religious exercise of a
person residing in or confined to an institution, as defined in section 1997 of
[Title 42], even if the burden results from a rule of general applicability, unless
the government demonstrates that imposition of the burden on that person(1) is in furtherance of a compelling government interest; and
(2) is the least restrictive means of furthering that compelling government
interest.
42 U.S.C. § 2000cc-1(a).
“The term ‘religious exercise’ includes any exercise of religion, whether or not compelled by, or
central to, a system of religious belief.” 42 U.S.C. § 2000cc–5(7)(A). To establish a prima facie
case under RLUIPA, the plaintiff must demonstrate that his engagement in religious exercise was
substantially burdened by the law, regulation, or practice he challenges. Knight v. Thompson,
797 F.3d 934, 943 (11th Cir. 2015) (“Knight II”). If he makes this prima facie showing, the
burden then shifts to the defendant to prove the challenged regulation is the least restrictive
means of furthering a compelling governmental interest. Id.

11

Plaintiff also alleged a RLUIPA claim regarding the forced shaving of his beard. However, as
discussed in Section I, Plaintiff failed to exhaust his administrative remedies as to this claim.
28

The United States Supreme Court clarified the analysis demanded by RLUIPA in Holt v.
Hobbs, in which the Court considered the Arkansas Department of Corrections’ (“Department”)
grooming policy and concluded that policy violated RLUIPA insofar as it prohibited the prisoner
plaintiff from growing a ½–inch beard in accordance with his religious beliefs. 574 U.S. at –––,
135 S.Ct. at 867. There was no dispute as to the sincerity of the plaintiff’s beliefs, and the
Supreme Court concluded the petitioner “easily satisfied” his obligation of demonstrating the
grooming policy substantially burdened his religious exercise.

The Court explained: “The

Department’s grooming policy requires petitioner to shave his beard and thus to ‘engage in
conduct that seriously violates [his] religious beliefs.’ If petitioner contravenes that policy and
grows his beard, he will face serious disciplinary action. Because the grooming policy puts
petitioner to this choice, it substantially burdens his religious exercise.” Id. at ––––, 135 S. Ct. at
862 (alteration in original) (citation omitted) (quoting Burwell v. Hobby Lobby Stores, Inc., –––
U.S. ––––,134 S.Ct. 2751, 2775 (2014)). 12
In the case at hand, Defendants do not dispute that Plaintiff’s beliefs are sincerely held or
that Plaintiff’s practice of concealing his awrah is an exercise of his religion.

However,

Defendants argue that their provision of only one pair of boxer shorts for Plaintiff’s escort
through the prison did not substantially burden Plaintiff’s belief that he may not be naked in the
presence of other men. (Doc. 41-1, p. 16.) First, Defendants contend Plaintiff was not actually
“naked” during his escort to the medical department because he was wearing boxer shorts. (Id.)
Although his boxer shorts were wet and translucent, Defendants aver that the exposure of
Plaintiff’s awrah through the boxer shorts was merely a “temporary inconvenience” to his
religious practice.
12

As explained by the Supreme Court in Holt, Congress enacted the RFRA to provide more expansive
protection for religious liberty than the First Amendment. 135 S. Ct. at 860.
29

In response, Plaintiff argues that any exposure of his awrah substantially burdens the
exercise of his religious belief.

Plaintiff avers he “always keeps his ‘awrah’ completely

covered[ ] while in the presence of others” and wears two pairs of boxer shorts to accommodate
this tenet of his religion. Therefore, Plaintiff maintains Defendants’ failure to completely cover
his awrah or to provide him two pairs of boxer shorts prior to escorting him through the prison
yard substantially burdened his religious belief in violation of RLUIPA.
Being forced to engage in conduct that violates one’s religious beliefs constitutes a
substantial burden under the RLUIPA. Holt, ___ U.S. at ___, 135 S. Ct. at 862. Here, Plaintiff
claims he was dragged through a common area containing fifty to sixty other male inmates while
his awrah was exposed through wet boxer shorts. Courts have found that the exposure of an
inmate’s naked body substantially burdens the belief that one may not be naked in front of
others.

For example, in Woodward v. Perez, No. 12 CV. 8671(ER), 2014 WL 4276416

(S.D.N.Y. Aug. 29, 2015), the plaintiff inmate showed that defendants substantially burdened his
belief against being naked in the presence of others by forcing him to shower in the presence of a
female prison guard and a homosexual inmate. Similarly, in Granville v. Quarterman, No. H-070849, 2012 WL 1309152, at *4 (S.D. Tex. Apr. 16, 2012), the plaintiff inmate demonstrated that
“being required to walk down the prison hall unclothed and to shower without wearing boxing
[sic] shorts impose[d] a substantial burden on his exercise of religious activity, in that his faith
requires he not appear unclothed before any female other than his wife, or before any male not
within his own family.” See also, Lindh v. Warden, Fed. Corr. Inst., Terre Haute, Indiana, No.
214CV00142JMSDKL, 2016 WL 4528478, at *8 (S.D. Ind. Aug. 30, 2016) (under Holt, prisoner
plaintiff satisfied his burden of showing substantial burden on exercise of religion by policy
requiring exposure of awrah.”). However, at least one other court has found that a Muslim

30

inmate’s belief is not substantially burdened by the requirement that he walk to the shower
wearing only boxer shorts and shower shoes. Lewis v. Ollison, 571 F. Supp. 2d 1162, 1170
(S.D. Cal. 2008) (“Plaintiff has at most demonstrated that the temporary shower policy adopted
by the prison . . . created at most an inconvenience, but not a significant interference with his
religious practice.”). 13
Here, like the inmate in Ollison, Plaintiff wore boxer shorts while walking through the
prison. However, Plaintiff alleges that his boxer shorts were wet and translucent and that his
awrah was, therefore, completely exposed, like the inmates in Woodward and Granville. At this
stage, the Court must construe all facts in the light most favorable to Plaintiff. Therefore, the
Court assumes that Plaintiff’s wet boxer shorts provided no coverage and that his genitals were
fully exposed. Under that set of facts, the exposure of Plaintiff’s body in this case resembles that
of the plaintiffs in Woodward and Granville more closely. Under Plaintiff’s version of facts, he
was “put to the choice” of exposing his awrah in violation of his religious beliefs or resisting
Defendants’ efforts to drag him to the medical unit. As a result, Plaintiff has plausibly alleged
that Defendants Abalos, Davis, Griffin, Santiago, and Whitfield substantially burdened his
religious belief in violation of RLUIPA. 14
Nevertheless, the RLUIPA does not authorize claims for monetary damages against
prison officials in their individual or official capacities. See Sossamon v. Texas, 563 U.S. 277,
293 (2011) (a suit against defendants in their official capacity is in effect a suit against the state,

13

Importantly, the decision in Ollison predated the Supreme Court’s decision in Holt.

14

At this stage, Defendants do not challenge the sincerity of Plaintiff’s religious beliefs, argue that they
had a compelling government interest which required them to provide Plaintiff only one pair of boxer
shorts or to transport him to the medical department while wearing only that garment, or argue that their
actions were the least restrictive means in which to further any compelling interest. Accordingly, the
Court need not assess whether Defendants had a compelling government interest or used the least
restrictive means available to further that interest at this time.
31

and the “States, in accepting federal funding, do not consent to waive their sovereign immunity
to private suits for money damages under RLUIPA”); Smith v. Allen, 502 F.3d 1255, 1275 (11th
Cir. 2007), abrogated on other grounds by Sossamon, (RLUIPA did not “creat[e] a private
action against individual defendants for monetary damages”); Shaw v. Upton, No. 6:16-CV-6,
2016 WL 5110255, at *1 (S.D. Ga. Sept. 20, 2016) (“Plaintiff cannot maintain any monetary
damages claims against Defendants based on his RLUIPA claims.”); James v. Taylor, No. 5:15CV-00266, 2016 WL 1696211, at *2 (M.D. Ga. Mar. 22, 2016), report and recommendation
adopted, No. 515CV266CARCHW, 2016 WL 1700393 (M.D. Ga. Apr. 27, 2016) (“Binding
Supreme Court and Eleventh Circuit case law prevents Plaintiff from obtaining monetary
damages under RLUIPA”). 15

Therefore, the Court should DISMISS Plaintiff’s claims for

monetary damages under the RLUIPA. 16

However, Plaintiff’s claims for injunctive and

declaratory relief remain. 17

15

Additionally, as discussed below, Defendants are entitled to qualified immunity as to Plaintiff’s
RLUIPA claims which further bars any monetary relief on the RLUIPA claims.

16

In its Order adopting my frivolity review Report and Recommendation, the Court already explicitly
dismissed Plaintiff’s official capacity claims for monetary relief and Plaintiff’s RLUIPA claims for
monetary relief against Defendants Curtis Whitfield, Johnathan Santiago, Antonio Abalos, and FNU
Griffin. (Doc. 36, pp. 2–3.) However, that Order could be misread to allow RLUIPA monetary claims
against other Defendants. Therefore, in abundance of caution, I recommend that the Court Order that all
RLUIPA claims for monetary relief are dismissed. However, my Report and Recommendation’s analysis
as to Plaintiff’s Official Capacity claims only pertained to Plaintiff’s claims for monetary relief. (Doc. 9,
p. 8.) Thus, Plaintiff’s claims for injunctive relief under the RLUIPA against Defendants remained
pending following the Court’s adoption of that Report and Recommendation.
17

In their Motion to Dismiss, Defendants argue that Plaintiff’s RLUIPA claims based on forced shaving
are now moot. (Doc. 41-1, pp. 16–17.) However, Defendants do not make a mootness argument as to the
claims based on the exposure of Plaintiff’s awrah.
32

D.

Free Exercise Claim Based on Exposure of Awrah 18

In addition to his RLUIPA claim, Plaintiff also claims Defendants violated his free
exercise rights under the First Amendment. The Free Exercise Clause “requires government
respect for, and noninterference with, the religious beliefs and practices of our Nation’s people.”
Cutter v. Wilkinson, 544 U.S. 709, 719 (2005). Prisoners retain their First Amendment rights,
including rights under the free exercise clause. However, “lawful incarceration brings about the
necessary withdrawal or limitation of many privileges and rights, a retraction justified by the
considerations underlying our penal system.” Brunskill v. Boyd, 141 F. App’x 771, 774 (11th
Cir. 2005) (quoting O’Lone v. Estate of Shabazz, 482 U.S. 342, 348, (1987)).
“To establish a violation of his right to free exercise,” a prisoner “must first establish that
a prison official imposed a ‘substantial burden’ on his practice of religion.” Wilkinson v. GEO
Grp., Inc., No. 14-10215, 2015 WL 1526642, at *2 (11th Cir. Apr. 7, 2015) (citing Church of
Scientology Flag Serv. Org., Inc. v. City of Clearwater, 2 F.3d 1514, 1549 (11th Cir. 1993)).
“To prove that his religious exercise was substantially burdened, [plaintiff] must present
evidence that he was coerced to perform conduct that his religion forbids or prevented from
performing conduct that his religion requires.” Id. (citing Midrash Sephardi, Inc. v. Town of
Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004)). “[A] ‘substantial burden’ must place more than
an inconvenience on religious exercise[.]” Midrash, 366 F.3d at 1227.
“In the prison context, the state actor can defend [an] action” that substantially burdens a
prisoner’s religious exercise “if [that action] is ‘reasonably related to legitimate penological
interests.’” Wilkinson, 2015 WL 1526642, at *2 (quoting Turner v. Safley, 482 U.S. 78, 89
(1987)). Put succinctly, “[i]n a prison setting, to demonstrate a free exercise violation, a plaintiff
18

Plaintiff also alleged a free exercise claim regarding the forced shaving of his beard. However, as
discussed in Section I, Plaintiff failed to exhaust his administrative remedies as to this claim.
33

must show that prison officials administered or implemented a policy or regulation, not
reasonably related to any legitimate penological interest or security measure, which substantially
burdens and significantly interferes with the practice of his religion or restricts his free exercise
of a sincerely held religious belief.” Hosey-Bey v. Williams, No. 2:12-CV-959-WHA, 2015 WL
4988388, at *6 (M.D. Ala. Aug. 19, 2015).
Defendants do not dispute the sincerity of Plaintiff’s religious belief. Instead, Defendants
argue they did not substantially burden Plaintiff’s belief by providing him only one pair of boxer
shorts during his escort through the prison. (Doc. 41-1, p. 19.) However, Plaintiff maintains his
religion requires him to “always keep[ ] his Awrah completely covered” and that he does so by
“always wear[ing] two (2) pair[s] of boxers[.]” (Doc. 54-1, p. 12.) Plaintiff argues that the
exposure of his awrah through a single pair of wet, translucent boxer shorts substantially
burdened his religious belief that he may not be naked in the presence of others. (Id.)
At this stage, the Court must accept as true Plaintiff’s factual allegation that his awrah
was completely exposed through the boxer shorts provided by Defendants prior to his escort to
the medical department. Plaintiff has plausibly alleged that Defendants coerced Plaintiff to
perform conduct that his religion specifically prohibits by dragging him into the presence of
other inmates and guards while his awrah was visibly exposed. This amounts to an allegation
that Defendants Abalos, Davis, Griffin, Santiago, and Whitfield substantially burdened his
religious practice in violation of the First Amendment. 19 See Woodward, No. 12 CV. 8671(ER),
2014 WL 4276416 (S.D.N.Y. Aug. 29, 2015), and Granville, No. H-07-0849, 2012 WL 1309152

19

At this stage, Defendants do not argue that their action was reasonably related to any legitimate
penological interest.
34

(S.D. Tex. Apr. 16, 2012). 20 Nevertheless, as discussed below, Defendants are entitled to
qualified immunity as to Plaintiff’s free exercise claims for monetary relief.
E.

Fourth Amendment Claim

The Fourth Amendment protects “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures[.]”
amend. IV.

U.S. Const.

Though incarcerated, prisoners “do not forfeit all constitutional protections by

reason of their conviction and confinement in prison.” Bell v. Wolfish, 441 U.S. 520, 545
(1979). Nevertheless, prisoners do not enjoy the same Fourth Amendment rights as free persons.
See Harris v. Thigpen, 941 F.2d 1495, 1513 (11th Cir. 1991) (noting that a prisoner retains only
those rights consistent “with his status as a prisoner or with the legitimate penological objectives
of the corrective system”) (citations omitted). For example, prisoners do not enjoy Fourth
Amendment protection against searches of their prison cells, and they must submit to routine
tests of their blood, hair, urine, or saliva for drugs. See Hudson v. Palmer, 468 U.S. 517, 526
(1984), and Moton v. Walker, No. 8:09-cv-1986-T-33, 2010 WL 2136553, at * 4 (M.D. Fla. May
26, 2010) (citing Green v. Berge, 354 F.3d 675, 679 (7th Cir. 2004)).
Similarly, prisoners must periodically submit to visual body-cavity searches. Bell, 441
U.S. at 558.

“[A] ‘visual body cavity search’ is a strip search that includes the visual

examination of the anal and genital areas.” McCabe v. Mais, 580 F. Supp. 2d 815, 822 (N.D.
Iowa 2008). “[T]here is nothing inherently unreasonable about requiring visual body cavity
searches” in the prison context. Moton, 2010 WL 2136553, at * 4 (citing Powell v. Barrett, 541
F.3d 1298, 1305–06 (11th Cir. 2008)). However, body cavity searches “must be conducted in a
20

Like Plaintiff in this case, the plaintiffs in Woodward and Granville alleged violations of both the
RLUIPA and the First Amendment. Thus, the analysis in those cases is pertinent to both forms of
Plaintiff’s religious claims. Additionally, the Eleventh Circuit has indicated that though the protections of
the RLUIPA “are not coterminous with the Free Exercise Clause”, the substantial burden analysis from
RLUIPA cases is instructive in the First Amendment context. Wilkinson, 617 F. App’x at 918.
35

reasonable and non-abusive manner[,]” though they need not be “delicately conducted in the
least intrusive manner.” Id. The Supreme Court has held that “the reasonableness of a [body
cavity] search cannot be determined by ‘precise definition or mechanical application,’ but
instead ‘requires a balancing of the need for the particular search against the invasion of personal
rights that the search entails.’” Powell, 541 F.3d at 1305 (citing Bell, 441 U.S. at 559). “In
balancing those interests there are four factors courts must consider: ‘the scope of the particular
intrusion, the manner in which it is conducted, the justification for initiating it, and the place in
which it is conducted.’” Id. (citing Bell, 441 U.S. at 559).
(1)

Scope of Intrusion

As to the scope of the intrusion, Plaintiff contends that the search was overly intrusive
because Defendants Whitfield and Abalos required Plaintiff to “bend-over at the waist, [at] a 90
degree [a]ngle[,] . . . [and] use both hands [to] spread [his] buttocks apart and [to] expose his
anus[.]” (Doc. 1, p. 12.) Defendants, however, argue that the body-cavity search conducted
upon Plaintiff was reasonable because it consisted of a visual search only. (Doc. 41-1, p. 21.)
The Supreme Court has held that body cavity searches are “admittedly intrusive.” Block v.
Rutherford, 468 U.S. 576, 586 n.7 (1984); see also Justice v. Peachtree City, 961 F.2d 188, 193
(11th Cir. 1992) (finding a strip search less intrusive when that search did not involve a body
cavity search). Accordingly, regardless of whether the search of Plaintiff’s body cavity was only
visual, that search was inherently intrusive. Moreover, Plaintiff claims that “other means were
available for cavity searches,” including “metal detectors, X-rays, and[/]or the metal detector
chair[ ],” and that Defendant Whitfield had previously agreed to conduct the search in an
alternate manner. (Doc. 1, pp. 8–9.) Accepting Plaintiff’s allegations as true, Defendants could

36

have conducted the search in a less intrusive manner. Accordingly, this factor weighs in favor of
Plaintiff at this stage of the litigation.
(2)

Manner in Which the Search was Conducted

The second factor the Court must examine is the manner in which the search was
conducted. Body cavity searches must be conducted in a reasonable, non-abusive manner.
Powell, 541 F.3d at 1306. In Evans v. Stephens, 407 F.3d 1272 (11th Cir. 2005), the Eleventh
Circuit held that the forceful manner in which a law enforcement officer conducted a body cavity
search violated the Fourth Amendment.

In that case, the defendant officer arrested two

individuals during a traffic stop and then transported them to the jail. Upon their arrival to the
jail, “[p]laintiffs were taken to and searched in . . . a broom closet or supply room, not a
dedicated search cell, medical examination room, or even a bathroom.” Evans, 407 F.3d at 1281
(citations omitted).

During the search, the officer used unnecessary force to conduct the

searches. Id. First, the officer shoved one plaintiff into the other, causing the men to collapse.
Id.

When one of the men tried to stand back up, the officer hit him with a baton.

Id.

Furthermore, “[l]ittle respect for privacy was observed[,]” during the search as “each Plaintiff
was forced to disrobe, [and was] ridiculed[ ] and penetrated by an object in front of the other.”
Id.
Here, Defendants Abalos, Whitfield, and Santiago also conducted Plaintiff’s body-cavity
search in the presence of Plaintiff’s cellmate and used force to do so by “spray[ing] [Plaintiff]
severely” with pepper spray. (Doc. 1, pp. 10–12.) According to Plaintiff, the force used was
unnecessary because he previously agreed to comply with the search in an alternate manner.
(Id. at p. 12.) Defendants argue that the manner in which they conducted the search was
reasonable because Plaintiff “was in his own cell and the search was conducted by prison

37

personnel of the same gender.” (Doc. 41-1, p. 21.) However, these facts do not outweigh the
fact that Defendants forced Plaintiff to strip naked in front of his cellmate, conducted the search
in front of Plaintiff’s cellmate, and “sprayed [Plaintiff] relentlessly and severely . . . [as Plaintiff]
was facing [the] back of [the] cell . . . [and] was not acting disruptively” prior to the search
(Doc. 1, p. 10). Viewing the facts in a light most favorable to Plaintiff, the manner in which
Defendants conducted the search was unreasonable and, consequently, this factor also weighs in
favor of Plaintiff
(3)

Justification for Initiating the Search

The third factor the Court must examine is the justification for initiating the search.
Here, the body-cavity search occurred during a “shakedown” conducted by the Smith State
Prison CERT Team.

“[R]outine shakedowns of prison cells are essential to the effective

administration of prisons.” Hudson, 468 U.S. at 529. Furthermore, “[a] detention facility is a
unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and
other contraband is all too common an occurrence. And inmate[s] [may] attempt[ ] to secrete
these items into the facility by concealing them in body cavities[.]” Bell, 441 U.S. at 559.
Accordingly, this factor weighs in favor of Defendants as they had a significant interest in
maintaining security in the prison.
(4)

Place Where the Search was Conducted

For similar reasons, the fourth factor weighs in favor of Defendants. 21 In the prison
context, courts must give considerable weight to the “place in which [the search] is conducted,”
as prisons are “places of involuntary confinement of persons who have a demonstrated proclivity
for antisocial criminal, and often violent, conduct[.]” Hudson, 468 U.S. at 526. Accordingly,
21

“[T]he combined weight of the third and fourth factors—the justification for the searches and the place
they were conducted[ ] . . . merge[ ] into one heavy consideration[.] Powell, 541 F.3d at 1306.
38

“correctional officials must be permitted to devise reasonable search policies to detect and deter
the possession of contraband in their facilities.” Florence v. Bd. of Chosen Freeholders of Cty.
of Burlington, 566 U.S. 318, 326 (2012). Here, the search occurred in a prison where the need to
discover and seize contraband is pronounced. Accordingly, this factor also weighs in favor of
Defendants.
While the final two factors weigh in favor of Defendants, the first two factors weigh so
heavily in Plaintiff’s favor that he plausibly alleges that the search was conducted in an
unreasonable manner in violation of the Fourth Amendment, notwithstanding the fact that the
search occurred in a prison. Therefore, Plaintiff states a plausible claim for relief on this count
against Defendants Abalos, Whitfield, and Santiago.

Nevertheless, as discussed below,

Defendants are entitled to qualified immunity as to Plaintiff’s Fourth Amendment claim for
monetary damages.
F.

Eighth Amendment Excessive Force Claims
(1)

Pepper Spray

Plaintiff claims that Defendant Whitfield instructed Defendant Abalos to spray Plaintiff
with pepper spray to induce Plaintiff to comply with the body cavity search. Plaintiff contends
this action violated the Eighth Amendment’s proscription against the use of excessive force.
The Eighth Amendment’s proscription against cruel and unusual punishment governs the
amount of force that prison officials are entitled to use against inmates. Campbell v. Sikes, 169
F.3d 1353, 1374 (11th Cir. 1999). An excessive force claim has two requisite parts: an objective
and a subjective component. Sims v. Mashburn, 25 F.3d 980, 983 (11th Cir. 1994). In order to
satisfy the objective component, the inmate must show that the prison official’s conduct was
“sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter,

39

501 U.S. 294, 298 (1991)). The subjective component requires a showing that the force was
used “maliciously and sadistically for the very purpose of causing harm” rather than “a good
faith effort to maintain or restore discipline.” Whitley v. Albers, 475 U.S. 312, 320–21 (1986).
In order to determine whether the force was used for the malicious and sadistic purpose of
causing harm or whether the force was applied in good faith, courts consider the following
factors: the need for the exercise of force, the relationship between the need for force and the
force applied, the extent of injury that the inmate suffered, the extent of the threat to the safety of
staff and other inmates, and any efforts taken to temper the severity of a forceful response.
Skelly v. Okaloosa Cty. Bd. of Cty. Comm’rs, 456 F. App’x 845, 848 (11th Cir. 2012) (quoting
Fennell v. Gilstrap, 559 F.3d 1212, 1217 (11th Cir. 2009)).
a.

The Need for the Exercise of Force

Plaintiff alleges that, prior to Defendants Whitfield’s and Abalos’ exercise of force, he
and his cellmate were “reading the Qu’ran and were in a spiritual state[.]” (Doc. 1, p. 6.)
Defendant Santiago then approached Plaintiff and his cellmate and instructed them to remove
their clothing and to submit to a visual search of their anal cavities. (Id. at p. 7.) Plaintiff
objected to Defendant Santiago’s order because the manner of the search violated Plaintiff’s
religious beliefs. (Id.) Plaintiff then requested to comply with the search in a different manner.
(Id.) Plaintiff alleges that Defendant Whitfield agreed to conduct the search in an alternate
manner and, in compliance with their agreement, Plaintiff removed his clothing. (Id. at p. 10.)
However, after Plaintiff removed his clothing, “[Defendant] Whitfield dishonored the
agreement” and ordered Defendant Abalos to spray Plaintiff and his cellmate with pepper spray.
(Id.) Plaintiff alleges that, prior to Defendants’ use of pepper spray, he “was facing [the] back of
[his] cell” and “was not acting disruptively.” (Id.) Plaintiff claims he “was not given a chance to

40

comply or cooperate” with the alternate search agreed upon prior to being pepper sprayed. (Id.)
Defendants respond that, contrary to Plaintiff’s claims, “the need for application of force in this
situation was great” because Plaintiff repeatedly refused to submit to the search and was warned
that Defendants would use pepper spray if he did not comply. (Doc. 41, p. 24.)
Accepting Plaintiff’s allegation as true, that he and Defendant Whitfield had agreed to
conduct the search in an alternate manner, the need for force in this case was minimal. In an
effort to comply with the alternate search method, Plaintiff removed his clothing and stood
quietly at the rear of the cell.

Accordingly, Defendant Abalos’ use of pepper spray was

unnecessary, as Plaintiff was attempting to comply with the search at the time this Defendant
released pepper spray in his cell. Therefore, this factor weighs in favor of Plaintiff.
b.

The Relationship Between the Need for the Use of Force and
the Amount Applied

Similarly, Defendants argue that their use of pepper spray was reasonable in light of
Plaintiff’s repeated refusals to follow their orders. (Doc. 41-1, p. 25.) However, Plaintiff
responds that “the amount of force. . . was [ ] totally unnecessary, and could have easily been
avoided” if Defendants Whitfield and Abalos had used alternate means to conduct the search.
(Doc. 54-1, p. 18.) Plaintiff again contends the relationship between the need for the use of force
and the amount of force applied was unreasonable because he “was not unruly, nor posed a threat
or danger to anyone[.]” (Id. at p. 19.)
As discussed above, accepting Plaintiff’s allegations as true, he and his cellmate were
attempting to comply with the alternate search at the time Defendant Abalos released pepper
spray into the cell. Accordingly, there was no need to use any force to induce Plaintiff’s
compliance with the search in this case. As a result, the amount of force applied outweighs the
need for force. This factor also weighs in Plaintiff’s favor.
41

c.

The Extent of Injury to Plaintiff

Plaintiff alleges that, as a result of Defendants’ use of pepper spray,

he “suffered

excruciating pain, chemical burns on [his] eyes, face and skin, [a] loss of consciousness,
emotional and mental injury . . . breathing problems, headaches/migraines, [and] burning for no
less than 7 days, [and] nasal discharges[.]” (Doc. 54-1, pp. 15–16.) Plaintiff further claims that
his eyes have been permanently damaged and that he “has received . . . years of eye treatment . . .
and has been prescribed medicated eye glasses” due to his prolonged exposure to the pepper
spray. (Id.) Defendants argue that Plaintiff suffered no more than de minimis injury, as Plaintiff
only alleges that he suffered “the normal effects of pepper spray: a burning sensation to his eyes
and face, difficulty breathing, disorientation and, allegedly, a ‘momentar[y]’ loss of
consciousness.” (Doc. 41-1, p. 23.)
However, contrary to Defendants’ characterization of Plaintiff’s allegations, Plaintiff
does in fact claim that he has suffered permanent injury as a result of his exposure to pepper
spray.

Specifically, Plaintiff alleges that his vision has been permanently damaged.

This

allegation is sufficient to show that Plaintiff suffered more than de minimis injury.

See

Stallworth v. Tyson, 578 F. App’x 948 (11th Cir. 2014) (“As to whether [Plaintiff’s] injuries are
de minimis, the alleged permanence of his vision loss suggests a severe injury[.]”); cf. Robinson
v. Tifft, No. 3:11cv560/LAC/CJK, 2012 WL 2675467, at *2 (N.D. Fla. June 1, 2012) (prisoner
failed to show more than a de minimis physical injury resulting from officer’s use of chemical
agent where he alleged he suffered “involuntary closing and burning sensation” in his eyes and
was temporarily blinded) (emphasis added). See also Quinlan v. Personal Trans. Servs. Co., 329
F. App’x 246, 249 (11th Cir. 2009) (unpublished) (pretrial detainee’s complaints of a headache
for several hours after being denied use of his asthma inhaler, difficulty breathing, temporary

42

chest pain, and lingering back pain that caused him to walk hunched over, which resulted from
being transported in a smoke-filled van while handcuffed, were not greater than de minimis and
therefore did not provide the necessary physical injury to recover for mental and emotional
injuries); Jennings v. Mitchell, 93 F. App’x 723, 725 (6th Cir. 2004) (finding that prisoner who
suffered the discomfort of pepper spray had shown only de minimis injury, insufficient to satisfy
§ 1997e(e)); Kirkland v. Everglades Corr. Inst., No. 12-22302-CIV, 2014 WL 1333212, at *6
(S.D. Fla. Mar. 31, 2014) (“If [plaintiff] experienced temporary chemical burns and minor
respiratory problems from exposure to a chemical agent, he then sustained only minor, physical
injuries from the chemical spray.”). Here, Plaintiff alleges that he has suffered injuries beyond
the normal discomfort of pepper spray including permanent visual injuries as a result of
Defendants’ use of force. These long-term injuries surpass the threshold of “de mininis” injury
and, accordingly, this factor weighs in favor of Plaintiff.
d.

The Extent of the Threat to the Safety of Staff and Other
Inmates

Plaintiff contends he posed no threat to the safety of staff or other inmates prior to being
pepper sprayed because he consented to the search—albeit in an alternate manner—and did not
possess any contraband. Plaintiff avers he was “no threat to anyone . . . [as he was] locked
behind [a] . . . fortified steel door . . . completely naked and unarmed.” (Doc. 54-1, p. 20.)
Plaintiff further argues that the threat to staff and inmates prior to the search was minimal
because “absolutely no contraband was found,” nor has there “ever been any contraband found in
[his] rectum or anal cavity[.]” (Id.)
Contrary to Plaintiff’s allegations of fact, Defendants maintain that Plaintiff refused to
comply with the search in any manner. Therefore, in Defendants’ view, the extent of the threat
to the safety of staff and other inmates was significant because “[i]t is common practice among
43

prison inmates to hide contraband in the rectum or anal cavity[.]”

(Doc. 41-1, p. 27.)

Additionally, Defendants argue that Plaintiff’s refusal to comply with their demands threatened
institutional order in the prison. (Id.)
Once again, at this stage, the Court must accept Plaintiff’s allegations as true. Under his
version of facts, Defendant Whitfield agreed to conduct the search in an alternate manner.
Pursuant to this agreement, Plaintiff removed his clothing and waited quietly at the back of the
cell. Defendant Abalos then sprayed pepper spray into Plaintiff’s cell without any provocation.
Accordingly, Plaintiff has plausibly alleged that he posed no threat to the safety of prison staff or
other inmates prior to Defendants’ exercise of force. Therefore, this factor also weighs in favor
of Plaintiff.
e.

Any Efforts Taken to Temper the Severity of a Forceful
Response

Plaintiff alleges that Defendants not only failed to make any effort to temper the severity
of their forceful response, but they maliciously inflicted more injury upon him following the
initial use of force. First, Plaintiff claims that Defendants intentionally turned off the water in his
cell after spraying him, causing him to writhe in pain for thirty to forty-five minutes. (Doc. 54-1,
p. 19.) Plaintiff claims that Defendants heard him “pleading, screaming, crying, and begging for
help and cold water,” but responded by threatening to spray him again. (Id.) Plaintiff contends
that when Defendants finally escorted him to a shower, they placed him in an inoperable shower
without running water. (Id.) After leaving Plaintiff in this non-functioning shower stall for ten
to fifteen minutes, Defendants then placed him in a shower with scalding hot water. (Id.)
Following his shower, Defendants Abalos and Santiago violently restrained Plaintiff and dragged
him to the medical unit, dislocating his shoulder. (Id.) Defendants characterize these events
differently, arguing they continually tempered the severity of their forceful response by placing
44

Plaintiff in a shower shortly after exposing him to pepper spray and then promptly escorting him
to the medical unit where a nurse evaluated his injuries. (Doc. 41-1, p. 26.)
At this stage, the Court must accept Plaintiff’s allegations of fact as true. Accordingly, it
appears Defendants continued to inflict pain upon Plaintiff, even after Plaintiff was already
subdued. As a result, this factor also weighs in favor of Plaintiff. Because all five factors weigh
in favor of Plaintiff, it appears Defendants Whitfiled and Abalos used pepper spray sadistically
and maliciously, solely for the purpose of causing harm. Accordingly, the Court should DENY
this portion of Defendants’ Motion to Dismiss Plaintiff’s excessive force claims.
(2)

“Chicken Wing” Maneuver

Plaintiff next contends Defendants Abalos and Santiago, per Defendant Whitfield’s
instruction, used excessive force against Plaintiff on a second occasion by using the “chickenwing maneuver” to transport him from the showers to the medical unit. (Doc. 1, p. 15; Doc. 541, p. 19.) Plaintiff describes the maneuver as a “tactical maneuver [commonly used by police
officers and professional wrestlers which is] used to punish and place an opponent in
submission.” (Doc. 54-1, p. 21.) Plaintiff states that Defendants Abalos and Santiago contorted
his arm and shoulder, causing Plaintiff “agonizing and excruciating pain . . . in his right shoulder
area, back, and arm.” (Doc. 1, p. 14.) As a result, Plaintiff’s shoulder was dislocated during the
transport. (Doc. 54-1, p. 21.) Plaintiff contends this exercise of force was done maliciously and
sadistically for the very purpose of causing harm, evidenced by the permanent damage to his
arm, which is “no longer functional.”

(Id.)

Defendants Abalos, Santiago, and Whitfield,

however, aver that carrying Plaintiff in such a way was necessary because he passed out during
his escort to the medical unit. 22 (Doc. 41-1, p. 28.) The legal standard and factors discussed in
22

Defendants argue Plaintiff fails to allege any facts showing their use of the “chicken wing” maneuver
was malicious or sadistic, (doc. 62, pp. 19–20). However, Plaintiff stated in his Complaint that, following
45

the preceding section apply with equal force to Plaintiff’s second excessive force claim, as laid
out below.
a.

The Need for the Exercise of Force

Plaintiff argues there was no need for Defendants Abalos and Santiago to carry him to the
medical department using the “chicken wing” maneuver, or for Defendant Whitfield to order
them to do so. (Doc. 54-1, p. 21.) Plaintiff alleges Defendants chose to carry him in this manner
as a form of punishment.

Defendants, however, aver that they used the “chicken wing”

maneuver “in a good faith attempt to carry Plaintiff to the medical department” to obtain medical
care for him. (Doc. 41-1, p. 28.)
Viewing the facts in the light most favorable to Plaintiff, there was no need to exercise
force in this context. Plaintiff was unconscious when Defendants Abalos and Santiago used the
“chicken wing” maneuver to carry him. Therefore, as Plaintiff was not displaying any resistance
toward officers while unconscious, it appears Defendants could have carried Plaintiff in a
manner that did not dislocate Plaintiff’s shoulder or cause him “excruciating” pain. Accordingly,
this factor weighs in favor of Plaintiff.
b.

The Relationship Between the Need for the Use of Force and
the Amount Applied

As discussed above, there was no need to exercise force against Plaintiff while he was
unconscious. Therefore, the amount of force applied outweighed any need to exercise force.
This factor also weighs in Plaintiff’s favor.

Defendants’ action, he “snapped aw[a]ke and cried out in pain; agonizing and execruciating [sic] pain was
in his right shoulder area, back[,] and arm.” (Doc. 1, p. 14.) Plaintiff then alleges that his cellmate “[saw]
the way [Defendants] were mistreating and hurting [Plaintiff] . . . [and] told cert officers to stop doing
him like that.” (Id. at p. 15.) Defendant Whitfield then instructed CERT team officers to use the
“chicken wing” maneuver on Plaintiff’s cellmate as well. (Id.) Construing Plaintiff’s Complaint
liberally, as the Court must at this stage, these facts indicate that Defendants used the “chicken wing”
maneuver maliciously as a form of punishment against both men in this situation.
46

c.

The Extent of Injury to Plaintiff

Plaintiff alleges that his arm is “no longer fully functional” as a result of his injury and
that his shoulder was dislocated during the “chicken wing” maneuver. (Doc. 54-1, p. 21.)
Defendants do not argue that the injury suffered by Plaintiff was “de minimis”.

Instead,

Defendants maintain that they used the “chicken wing” maneuver in a good-faith attempt to
escort Plaintiff to the medical department. (Doc. 62, p. 19.)
Here, Plaintiff alleges that he has suffered permanent injury to his arm as a result of
Defendants’ use of the “chicken wing” maneuver. As discussed above, Plaintiff’s allegation of
permanent injury is sufficient to show he suffered more than de minimis injury. See Stallworth
v. Tyson, 578 F. App’x 948 (11th Cir. 2014) (“As to whether [Plaintiff’s] injuries are de minimis,
the alleged permanence of his [injury] suggests a severe injury[.]”). These long-term injuries
surpass the threshold of “de minimis” injury and, therefore, this factor weighs in favor of
Plaintiff.
d.

The Extent of the Threat to the Safety of Staff and Other
Inmates

Plaintiff alleges he was unconscious when Defendants restrained him using the “chicken
wing” maneuver. Accepting this allegation as true, Plaintiff posed no threat to the safety of staff
or other inmates during his escort to the medical department. Accordingly, this factor also
weighs in favor of Plaintiff.
e.

Any Efforts Taken to Temper the Severity of a Forceful
Response

The parties do not address whether Defendants took any efforts to temper the severity of
the force exercised during their use of the “chicken wing” maneuver. However, Plaintiff alleges
Defendants took him to the medical department after exercising force against him. Therefore,

47

because Defendants sought medical treatment for Plaintiff’s injuries following their exercise of
force, this factor weighs in favor of Defendants. Nevertheless, because the preceding four
factors weigh in favor of Plaintiff, he plausibly states an Eighth Amendment excessive force
claim at this stage. Accordingly, the Court should likewise DENY this portion of Defendants
Whitfield, Santiago, and Abalos’ Motion to Dismiss.
G.

Eighth Amendment Failure to Intervene Claims

“[A]n officer can be liable for failing to intervene when another officer uses excessive
force.” Priester v. City of Riviera Beach, 208 F.3d 919, 924 (11th Cir. 2000) (“[I]f a police
officer, whether supervisory or not, fails or refuses to intervene when a constitutional violation
such as an unprovoked beating takes place in his presence, the officer is directly liable[.]”)
(alterations in original) (citing Ensley v. Soper, 142 F.3d 1402, 1407–08 (11th Cir. 1998)). “This
liability, however, only arises when the officer is in a position to intervene and fails to do so.”
Id.; see also Keating v. City of Miami, 598 F.3d 753, 764 (11th Cir. 2010) (explaining that a
direct failure to intervene claim “requir[es] the allegations to include facts showing the necessity
or real opportunity for the defendant-officers to intervene in a fellow officer’s unlawful
conduct”). When events occur so quickly he or she cannot intervene, an officer is not liable for
another’s constitutional violation. Fils v. City of Aventura, 647 F.3d 1272, 1290 n.21 (11th Cir.
2011) (citing Brown v. City of Huntsville, 608 F.3d 724, 740 n.25 (11th Cir. 2010)).
Defendants argue that, even if Defendants Whitfield, Abalos, and Santiago exercised
excessive force against Plaintiff, he fails to allege any facts showing that Defendants Williams,
Deal, Johnson, McFarlane, Smokes, Davis, and Griffin failed to intervene during those exercises
of force. 23 (Doc. 41-1, p. 30.) Specifically, Defendants argue that Plaintiff does not allege
23

Defendants do not argue that Defendants Santiago and Jones—members of the CERT Team—were
absent during Plaintiff’s pepper spraying or unable to intervene. Accordingly, Plaintiff’s Eighth
48

Defendants Williams, Deal, Johnson, McFarlane, or Smokes were present during Plaintiff’s
exposure to pepper spray. (Id. at p. 30.) Although Defendants concede that Defendant Davis
was present during the incident, they argue Plaintiff fails to allege facts showing Defendant
Davis was in any position to intervene. (Id.) Similarly, although Defendants do not dispute that
Defendant Griffin was present during the pepper spraying incident, they argue Plaintiff has not
sufficiently alleged that Defendant Griffin was in a position to intervene. 24 (Id. at pp. 30–31.)
Finally, Defendants aver Plaintiff fails to allege any facts sufficient to show Defendant Griffin
was present when Defendant Abalos placed Plaintiff in the “chicken wing” maneuver. (Id. at p.
31.)
In his Complaint, Plaintiff alleges that “[w]hen [Defendant] Whitfield approached
Plaintiff[’s] cell” to conduct the cavity search “he was accompanied by . . . all other officers [on]
. . . the CERT Team and Shakedown team.” (Doc. 1, p. 9.) Plaintiff further alleges that
“Warden Williams, Deputy Warden Deal, [and] Unit Manager Smokes . . . [were] present during
the strip search [and during his exposure to pepper spray], but they never rebuked the acts of the
CERT Team.” (Id. at p. 12.) He alleges those Defendants “just stood there and just watched”
during the incident. (Id.) Plaintiff then avers that “as [he was] coming out of [his] cell” after
being sprayed, he “saw Warden Williams, Deputy Warden James Deal, Deputy Warden Wayne
Johnson, Captain Andrew McFarlane, [and] Unit Manager Smokes . . . all standing around, but
no one reprimanded the officers (Cert Team)” for pepper spraying Plaintiff. (Id. at pp. 12–13.)
In addition, Plaintiff states in his Complaint that “[t]he whole Shakedown Team . . . watched as

Amendment failure to intervene claims against Defendants Santiago and Jones should proceed as to that
claim. For the same reason, Plaintiff’s failure to intervene claim against Defendant Jones should proceed
as to his excessive force claim regarding the “chicken wing” maneuver.
24

Defendant Griffin filmed Defendant Abalos as he released pepper spray into Plaintiff’s cell.
49

[Plaintiff was] taken . . . to medical” when he was placed in the “chicken wing” maneuver.
(Id. at p. 14.)
Plaintiff reiterates in his Response to Defendants’ Motion to Dismiss that Defendants
Williams, Deal, Johnson, McFarlane, Smokes, Davis, and Griffin were standing in close
proximity during each alleged exercise of force. Plaintiff contends that Defendant Griffin “was
maybe [four or five] feet away” and “stood by idly and watched” while he recorded Plaintiff’s
pepper spraying on a video recorder. (Doc. 54-1, p. 22.) Next, Plaintiff avers that Defendant
Davis was “close by at all times, just watching.” (Id.) Finally, Plaintiff contends Defendants
Williams, Deal, Johnson, McFarlane, and Smokes “were all present in the J-2 dormitory” during
his exposure to pepper spray. (Id.)
Construing Plaintiff’s Complaint liberally, as the Court must at this stage, Plaintiff
alleges sufficient facts to show Defendants Williams, Deal, Johnson, McFarlane, Smokes, Davis,
Griffin, Santiago, and Jones were present during his pepper spraying, witnessed that exercise of
force, and failed to intervene, despite their ability to do so.

Specifically, Plaintiff alleges

Defendants Davis, Griffin, McFarlane, Santiago, and Jones were part of a team of correctional
officers assembled to conduct Plaintiff’s body-cavity search following his refusal to undergo that
search. Based on this fact, it appears that the purpose of these Defendants’ presence during
Plaintiff’s pepper spraying was to enforce the body-cavity search. Accordingly, under the facts
alleged, Defendant Abalos’ decision to spray Plaintiff did not happen so quickly that no other
Defendant had an opportunity to intervene. In fact, it appears that each of these Defendants
approached Plaintiff’s cell with the expectation that force would be exercised. Furthermore, as
discussed above, Plaintiff alleges in his Complaint that “Warden Williams, Deputy Warden Deal,
[and] Unit Manager Smokes . . . just stood there and just watched” while he was pepper sprayed

50

and “never rebuked the acts of the CERT Team.” (Id.) Similarly, Plaintiff does not allege any
facts that suggest Defendants Santiago and Abalos’ use of the “chicken wing” maneuver
happened so quickly that no other officers could intervene during or after that exercise of force.
Accordingly, at this stage, it appears Defendants Williams, Deal, Johnson, McFarlane, Smokes,
Davis, Griffin, and Jones were each present during the exercises of force but failed to
intervene. 25 The Court should DENY this portion of Defendants’ Motion to Dismiss, and
Plaintiff’s failure to intervene claims against Defendants Williams, Deal, Johnson, McFarlane,
Smokes, Davis, Griffin, Santiago, and Jones should proceed.
H.

Eighth Amendment Deliberate Indifference to Serious Medical Needs Claim

The cruel and unusual punishment standard of the Eighth Amendment requires prison
officials to “ensure that inmates receive adequate food, clothing, shelter, and medical care.”
Farmer, 511 U.S. at 832. Generally speaking, however, “prison conditions rise to the level of an
Eighth Amendment violation only when they involve the wanton and unnecessary infliction of
pain.” Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004) (quotations omitted). Thus,
not all deficiencies and inadequacies in prison conditions amount to a violation of a prisoner’s
constitutional rights. Rhodes v. Chapman, 452 U.S. 337, 349 (1981). The Constitution does not
mandate comfortable prisons. Id. Prison conditions violate the Eighth Amendment only when
the prisoner is deprived of “the minimal civilized measure of life’s necessities.” Id. at 347.
However, “[c]ontemporary standards of decency must be brought to bear in determining whether
a punishment is cruel and unusual.” Bass v. Perrin, 170 F.3d 1312, 1316 (11th Cir. 1999).

25

Similarly, under Plaintiff’s version of events, Defendant Santiago was present during Plaintiff’s pepper
spraying, but failed to intervene. This failure to intervene claim should proceed against Defendant
Santiago. However, because Defendant Santiago allegedly participated in the second exercise of force—
the “chicken wing” maneuver—Plaintiff may not sustain a failure to intervene claim against Defendant
Santiago as to that claim.
51

In the medical care context, the standard for cruel and unusual punishment, embodied in
the principles expressed in Estelle v. Gamble, 429 U.S. 97, 104 (1976), is whether a prison
official exhibits a deliberate indifference to the serious medical needs of an inmate. Farmer, 511
U.S. at 828. However, “not every claim by a prisoner that he has not received adequate medical
treatment states a violation of the Eighth Amendment.” Harris v. Thigpen, 941 F.2d 1495, 1505
(11th Cir. 1991) (quoting Estelle, 429 U.S. at 105). Rather, “an inmate must allege acts or
omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.”
Hill v. DeKalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1186 (11th Cir. 1994).
In order to prove a deliberate indifference claim, a prisoner must overcome three
obstacles. The prisoner must: 1) “satisfy the objective component by showing that [he] had a
serious medical need”; 2) “satisfy the subjective component by showing that the prison official
acted with deliberate indifference to [his] serious medical need”; and 3) “show that the injury
was caused by the defendant’s wrongful conduct.” Goebert v. Lee Cty., 510 F.3d 1312, 1326
(11th Cir. 2007). A medical need is serious if it “‘has been diagnosed by a physician as
mandating treatment or [is] one that is so obvious that even a lay person would easily recognize
the necessity for a doctor’s attention.’” Id. (quoting Hill, 40 F.3d at 1187) (emphasis supplied).
As for the subjective component, the Eleventh Circuit has consistently required that “a defendant
know of and disregard an excessive risk to an inmate’s health and safety.” Haney v. City of
Cumming, 69 F.3d 1098, 1102 (11th Cir. 1995). Under the subjective prong, an inmate “must
prove three things: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk;
(3) by conduct that is more than [gross] negligence.” Goebert, 510 F.3d at 1327.
“The meaning of ‘more than gross negligence’ is not self-evident[.]” Id. In instances
where a deliberate indifference claim turns on a delay in treatment rather than the type of

52

medical care received, the factors considered are: “(1) the seriousness of the medical need; (2)
whether the delay worsened the medical condition; and (3) the reason for the delay.” Id. “When
the claim turns on the quality of the treatment provided, there is no constitutional violation as
long as the medical care provided to the inmate is ‘minimally adequate.’” Blanchard v. White
Cty. Det. Ctr. Staff, 262 F. App’x 959, 964 (11th Cir. 2008) (quoting Harris, 941 F.2d at 1504).
“Deliberate indifference is not established where an inmate received care but desired different
modes of treatment.” Id.
With these standards in mind, the Court now addresses Defendants Abalos, Williams,
Deal, Smokes, Johnson, and McFarlane’s arguments that Plaintiff fails to assert a viable claim of
deliberate indifference to a serious medical need against them. 26 First, Defendants contend
Plaintiff’s physical reaction to pepper spray resulted in no more than de minimis injury and,
therefore, is not the type of serious medical need required to state a deliberate indifference claim.
(Doc. 41-1, p. 32.) To the extent Plaintiff’s reaction to pepper spray can be considered a serious
medical condition, Defendants maintain that their efforts to escort Plaintiff to the medical unit
belies Plaintiff’s argument that Defendants disregarded any serious risk to Plaintiff’s health.
(Id. at pp. 32–33.)
Plaintiff asserts that his physical reaction to pepper spray resulted in more than de
minimis injury. (Doc. 54-1, p. 23.) According to Plaintiff, he “lost[ ] consciousness[,] . . .
26

In their Motion to Dismiss, Defendants note that, in addition to his Eighth Amendment deliberate
indifference to serious medical needs claim, “Plaintiff appears to also assert an Eighth Amendment
conditions-of-confinement claim against Defendants Williams, Deal, Johnson, Smokes, McFarlane,
Davis, Whitfield, Abalos, Santiago, and Griffin.” (Doc. 41, p. 31.) Defendants maintain that it is unclear
whether the Court allowed Plaintiff’s medical deliberate indifference claims, as well as his conditions-ofconfinement claims, to proceed against each of these Defendants at frivolity review. As discussed below,
Defendants should be entitled to dismissal of Plaintiff’s conditions-of-confinement claims. In contrast,
because Plaintiff alleges that he interacted with Defendants Whitfield, Santiago, Griffin, Abalos,
Williams, Deal, Smokes, Johnson, and McFarlane during the time in which he requested medical
attention, his medical deliberate indifference claims are viable against each of these Defendants. (Doc. 1,
pp. 12–14; Doc. 54-1, p. 23.)
53

couldn’t breathe, couldn’t see, felt intense burning (all over [his] upper body) and was in
excruciating pain.” (Id.) Plaintiff contends he “pleaded, begged, screamed for help, medical
assistance, and medical treatment[,]” but “[D]efendant[s] Whitfield, Santiago, Abalos, Williams,
Deal, McFarlane, Smokes, and Griffin all deliberately ignored [him] and refused to help.” (Id.)
Plaintiff states Defendants left him in his cell, with no means to wash his face or eyes, for thirty
to forty-five minutes.

(Id.)

Finally, as to his escort to the medical unit, Plaintiff asserts

Defendants continued to exhibit deliberate indifference to his serious medical need by
“coerc[ing] the nurse to not provide medical treatment.” (Id.)
In their Reply to Plaintiff’s Response to Defendants’ Motion to Dismiss, Defendants
admit they left Plaintiff in his cell without any means of decontamination following his exposure
to pepper spray for thirty to forty-five minutes. (Doc. 62, p. 22.) However, Defendants maintain
this fact is irrelevant to Plaintiff’s claims. Defendants argue that, because Plaintiff’s injuries
were de minimis at their inception, they remained de minimis thirty to forty-five minutes later.
(Id.) Consequently, Defendants assert their “failure to immediately secure medical care cannot
state a claim for deliberate indifference.” (Id. (emphasis added).) Defendants further respond
that, even if Plaintiff had a serious medical need, his claim that Defendants were deliberately
indifferent to that need fails because they eventually provided him a shower and eventually
escorted him to the medical unit. (Id. at pp. 22–23.)
As to Defendants’ argument that Plaintiff had no serious medical need, a review of
Plaintiff’s Complaint and pertinent case law reveals that Plaintiff has plausibly alleged he had a
serious medical need. In Danley v. Allen, 540 F.3d 1298, 1312 (11th Cir. 2008), overruled in
part on other grounds by Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Eleventh Circuit held that
defendant jailers exhibited deliberate indifference to a detainee’s serious medical need when they

54

refused to decontaminate the detainee after spraying him with chemical agents. The detainee
“claimed that the jailers had sprayed him at close range for three to five seconds in the doorway
of a small, poorly ventilated cell, and pushed him into that small cell for about twenty minutes,
while he screamed he could not breathe and the jailers laughed at him.” McNeeley v. Wilson,
649 F. App’x 717, 722 (11th Cir. 2016) (citing Danley 540 F.3d at 1304.) “The jailers then
allowed him a two-minute shower and returned him to a group cell, which was also insufficiently
ventilated.”

Id.

The detainee alleged that he suffered chemical conjunctivitis and

bronchospasms because of the delay in treatment. Id. “In holding that the plaintiff had stated a
claim, [the Eleventh Circuit] stressed that ‘[t]he serious medical needs Danley alleges . . . are the
effects of prolonged exposure to pepper spray with inadequate decontamination and poor
ventilation, not the immediate effects of the pepper spray.’” Id. (emphasis supplied). The
Eleventh Circuit concluded that “‘the jailers forced Danley to wait for too long before allowing
him to shower,’ which resulted in needless pain, breathing problems, and inflamed eyes.” Id.
Similarly, in McNeeley v. Wilson, 649 F. App’x at 722, the Eleventh Circuit found that a
prisoner who complained of burning skin, red eyes, and extreme difficulty breathing after
exposure to pepper spray had shown that he had a serious medical need. In that case, the
Eleventh Circuit denied defendants qualified immunity because defendants “were on notice that
delaying a proper decontamination for over twenty minutes despite complaints about the effects
of pepper spray could result in a clearly established constitutional violation.” Id. at *4.
As Defendants argue in their Motion to Dismiss, the typical discomfort associated with
exposure to pepper spray does not constitute a serious medical need. See Kirkland v. Everglades
Corr. Inst., No. 12-22302-CIV, 2014 WL 1333212, at *6 (S.D. Fla. Mar. 31, 2014) (“If [plaintiff]
experienced temporary chemical burns and minor respiratory problems from exposure to a

55

chemical agent, he then sustained only minor, physical injuries from the chemical spray.”);
Thompson v. Quinn, No. 3:11cv533/RV/EMT, 2013 WL 2151715, at *12 (N.D. Fla. May 16,
2013) (prisoner failed to show more than a de minimis physical injury resulting from officer’s
use of chemical agent where only allegation of physical injury was burning sensation on his
body); Kornagay v. Burt, No. 3:09cv281/LAC/EMT, 2011 WL 839496 (N.D. Fla. Feb. 8, 2011)
(prisoner failed to show more than a de minimis physical injury resulting from officer’s use of
chemical agent where prisoner alleged he suffered burning lungs and skin, congested breathing,
tearing eyes, nasal discharge, dizziness, the sensation of respiratory distress, choking, and burns
to his scalp).
Nevertheless, Defendants’ assertion that these symptoms can never constitute a serious
medical need is incorrect. While a prisoner’s instantaneous feelings of discomfort after exposure
to pepper spray do not create a serious medical need, the Eleventh Circuit has held that a serious
medical need may arise after prolonged exposure to pepper spray, as discussed herein. Danley,
540 F.3d at 1312. In Danley, the detainee was left in a small, poorly ventilated cell for twenty
minutes. While jailers eventually took the detainee to a shower, that shower lasted for less than
two minutes, and “did not permit [the detainee] adequate time for effective decontamination.”
Id. at *1304. Here, Plaintiff was left in his cell nearly twice as long as the detainee in Danley.
After thirty to forty-five minutes, Defendants placed Plaintiff in a non-working shower for
approximately fifteen minutes. Just as the jailers forced the detainee in Danley to wait too long
before allowing him to shower, according to Plaintiff, Defendants forced Plaintiff to wait too
long to shower in this case. Furthermore, just as a two-minute shower did not adequately
decontaminate the detainee in Danley, Plaintiff alleges that his placement in a non-working
shower did not adequately decontaminate him from the effects of pepper spray.

56

Plaintiff

plausibly alleges that delaying the decontamination exacerbated his pain and elevated his injuries
to create a serious medical need. Accordingly, Plaintiff has sufficiently alleged that he had a
serious medical need due to Defendants’ failure to remove him from his contaminated cell,
followed by Defendants’ failure to provide adequate means of decontamination.
Defendants next argue that, even if Plaintiff had a serious medical need, he fails to show
Defendants exhibited deliberate indifference to that need. (Doc. 41-1, pp. 32–33.) Defendants
contend they “provided [Plaintiff] a shower and promptly escorted him to the prison’s medical
department” following his exposure to pepper spray. Based upon these actions, Defendants
contend they did not disregard the risk to Plaintiff and they did not exhibit more than gross
negligence to his medical need.
Plaintiff concedes that Defendants eventually placed him in a shower and escorted him to
the medical unit. However, Plaintiff argues that Defendants disregarded his medical needs prior
to taking these actions by leaving him in his cell for thirty to forty-five minutes with no running
water, placing him in a shower without running water for fifteen minutes, ignoring his pleas for
help, and coercing medical staff to withhold treatment from Plaintiff after they escorted him to
the medical unit. 27 (Doc. 54-1, p. 23; Doc. 1, p. 13.) Plaintiff also maintains that Defendants’
failure to provide him running water for one hour and their refusal to respond to his pleas for
help surpassed gross negligence, referencing Defendants’ needless delay and derogatory
comments toward Plaintiff’s religion following his exposure to pepper spray. (Doc. 1, p. 14.)

27

As Defendants note in their Reply to Plaintiff’s Response to Defendants’ Motion to Dismiss, Plaintiff
did not directly allege that Defendants coerced medical staff in his Complaint. (Doc. 62, p. 17.)
However, Plaintiff’s Complaint stated that he “believe[s] medical staff may have been ‘coerced’ by [the]
CERT team . . . into ignoring [his] needs.” (Doc. 1, p. 15.) Given Plaintiff’s pro se status and the fact
that this pleading gave Defendants sufficient notice of Plaintiff’s claims, the Court will permit this claim
to proceed.
57

As discussed above, “[t]he meaning of ‘more than gross negligence’ is not selfevident[.]” Goebert, 510 F.3d at 1327. In instances where a deliberate indifference claim turns
on a delay in treatment rather than the type of medical care received, the factors considered are:
“(1) the seriousness of the medical need; (2) whether the delay worsened the medical condition;
and (3) the reason for the delay.” Id. Here, Defendants eventually placed Plaintiff in a shower
with running water and escorted him to the medical unit.

However, Plaintiff avers that

Defendants were deliberately indifferent to his serious medical needs during the hour prior to his
placement in an operable shower. As discussed above, Plaintiff’s need to decontaminate his
body from pepper spray was a serious medical need and that condition worsened the longer he
was unable to access water. Again, at this stage, the Court must accept Plaintiff’s facts as true,
and it must construe those facts in Plaintiff’s favor. Under that standard of review, Plaintiff has
plausibly alleged that Defendants Whitfield, Santiago, Griffin, Abalos, Williams, Deal, Smokes,
Johnson, and McFarlane were deliberately indifferent to his medical needs following his
exposure to pepper spray.
Therefore, the Court should DENY this portion of Defendants’ Motion. 28

28

Plaintiff also claims that Defendants were deliberately indifferent to his serious medical need when
they transported him to the medical unit using the “chicken wing” maneuver. However, unlike Plaintiff’s
argument concerning the one-hour delay between his exposure to pepper spray and Defendants’ provision
of running water, Plaintiff has not shown that Defendants disregarded a serious medical need during this
incident. Plaintiff passed out during his escort to the medical department, and Defendants had to then
carry him. Defendants’ efforts to secure and transport Plaintiff to the medical unit show that they were
actively seeking treatment for his medical needs, as opposed to disregarding them. While it is plausible
that Defendants could have transported Plaintiff in a more gentle fashion, their use of the “chicken wing”
maneuver does not show that they disregarded Plaintiff’s serious medical need, much less disregarded
that need with conduct surpassing gross negligence. Therefore, the Court should GRANT this portion of
Defendants’ Motion to Dismiss and DISMISS Plaintiff’s deliberate indifference to medical needs claims
regarding Defendants’ Whitfield, Abalos, and Santiago’s use of the “chicken wing” maneuver.
58

I.

Eighth Amendment Conditions of Confinement Claim

The Eighth Amendment also governs the conditions of a prisoner’s confinement. Helling
v. McKinney, 509 U.S. 25, 31 (1993). Generally, prison conditions rise to the level of an Eighth
Amendment violation only when they “involve the wanton and unnecessary infliction of pain.”
Rhodes v. Chapman, 452 U.S. 337, 347 (1981). “To mount a challenge to a condition of
confinement, a prisoner must first prove the condition he complains of is sufficiently serious to
violate the Eighth Amendment.” Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004).
“The challenged condition must be extreme.” Id. “At the very least [the prisoner must show the]
condition of his confinement poses an unreasonable risk of serious damage to his future health or
safety.”

Id. (quotations and alteration omitted). The prisoner must also show that prison

officials acted with deliberate indifference to the condition at issue. Id.; Brown v. Pastrana, 446
F. App’x 270, 272 (11th Cir. 2011).
Although “[t]he Constitution does not mandate comfortable prisons,” Farmer, 511 U.S. at
832, it does not allow a prisoner to be exposed to an objectively “unreasonable risk of serious
damage to his future health.” Chandler, 379 F.3d at 1289 (quoting Helling, 509 U.S. at 35).
Moreover, the conditions of confinement must meet “the evolving standards of decency that
mark the progress of a maturing society.” Estelle, 429 U.S. at 102–03 (quoting Trop v. Dulles,
356 U.S. 86, 101 (1958) (internal quotation marks omitted)). To state a successful Eighth
Amendment claim, a plaintiff must show: “(1) a substantial risk of serious harm; (2) the
defendants’ deliberate indifference to that risk; and (3) a causal connection between the
defendants’ conduct and the Eighth Amendment violation.” Brooks v. Warden, 800 F.3d 1295,
1303 (11th Cir. 2015).

59

Whether a particular condition of confinement constitutes cruel and unusual punishment
is an objective inquiry; whether prison officials were deliberately indifferent to that condition is a
subjective inquiry. See Wilson v. Seiter, 501 U.S. 294, 298–99 (1991). Prison conditions
amount to cruel and unusual punishment only when they result in “unquestioned and serious
deprivation of basic human needs.” Rhodes, 452 U.S. at 347. “While prison officials must
furnish prisoners with adequate food, clothing, shelter, and medical care, and must take
reasonable measures to guarantee the safety of inmates, the Constitution does not mandate
comfortable prisons[.]” Grimes v. Thomas, No. 2:12-CV-01909-LSC, 2014 WL 554700, at *5–6
(N.D. Ala. Feb. 12, 2014) (internal citations and punctuation omitted), appeal dismissed, (Sept.
17, 2014). As the Eleventh Circuit observed, “[t]he Constitution does not require that prisoners,
as individuals or as a group, be provided with any and every amenity which some person may
think is needed to avoid mental, physical, and emotional deterioration.” Harris, 941 F.2d at
1511. “[C]onditions that cannot be said to be cruel and unusual under contemporary standards
are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they
are part of the penalty that criminal offenders pay for their offenses against society.” Rhodes,
452 U.S. at 347. Therefore, extreme deprivations are required to make out a conditions-ofconfinement claim under the Eighth Amendment. See Chandler, 379 F.3d at 1298. “To be
deliberately indifferent, a prison official must knowingly or recklessly disregard an inmate’s
basic needs.” LaMarca v. Turner, 995 F.2d 1526, 1535 (11th Cir. 1993). To establish that an
official was deliberately indifferent, “a plaintiff must prove that the official possessed knowledge
both of the infirm conditions and of the means to cure that condition, ‘so that a conscious,
culpable refusal to prevent the harm can be inferred from the defendant’s failure to prevent it.”’
Id. (quoting Duckworth v. Franzen, 780 F.2d 645, 653 (7th Cir. 1985)).

60

For the purposes of this Motion only, Defendants concede that Plaintiff has alleged that
he was confined in a cell “flooded and filled with pepper spray” for two weeks and was given no
opportunity or supplies to clean his cell.

Nevertheless, Defendants argue that Plaintiff’s

allegation that he developed a rash and hives “fails to show that the conditions of his
confinement . . . exposed him to a serious risk to his future health.” (Doc. 41-1, p. 34.) In the
alternative, Defendants contend that Plaintiff fails to allege which Defendants confined him to
his cell and fails to show that any Defendants were aware of the condition of his cell. As a
result, Defendants maintain that Plaintiff has not shown that any of the named Defendants
exhibited deliberate indifference to his condition of confinement. (Id.)
In his Complaint, Plaintiff alleges “Defendants Williams, Deal, Johnson, Smokes,
McFarlane, Davis, Whitfield, Abalos, Santiago, and Griffin all subjected [P]laintiff . . . to
hazardous conditions of confinement when they placed [P]laintiff and[/]or allowed [P]laintiff to
be placed inside a cell covered, filled[,] and flooded with pepper spray/mace; and cell was not
properly ventilated.” (Doc. 1, p. 28.) Plaintiff argues he faced a substantial risk of serious harm
due to his prolonged exposure to pepper spray in his contaminated cell, evidenced by his
difficulty breathing and the burning of his eyes and skin, in addition to developing a rash and
hives. (Doc. 54-1, p. 23–24.) Plaintiff reiterates in his Response to Defendants’ Motion to
Dismiss that: (1) “Defendants Whitfield, Abalos, Santiago, and Griffin placed [him] into [the
cell,]” (2) “Defendants Williams, Deal, Johnson, McFarlane, and Smokes . . . allowed [him] to
be placed inside” the cell, and (3) Defendants Williams, Deal, Johnson, McFarlane, and Smokes
witnessed Plaintiff being sprayed and knew that his cell had not been cleaned after he returned to
the cell. (Id.)

61

Therefore, contrary to Defendants’ contentions, a review of Plaintiff’s Complaint reveals
that he has in fact alleged which Defendants knew of and disregarded the contamination of his
cell. Nevertheless, Eleventh Circuit case law suggests that Plaintiff did not suffer a “denial of
the minimal civilized measure of life’s necessities” from his confinement in a contaminated cell.
See Thomas v. Bryant, 614 F.3d 1288, 1303 (11th Cir. 2010). In McNeeley v. Wilson, 649 F.
App’x 717 (11th Cir. 2016), the Eleventh Circuit indicated that confinement in a cell
contaminated with pepper spray does not rise to the level of an Eighth Amendment conditionsof-confinement violation.

The Court distinguished the two claims, stating that although

prolonged exposure to pepper spray may constitute an excessive force claim, it likely does not
state a conditions-of-confinement claim. McNeeley, 649 F. App’x at 723–24 (“Danley involved
deliberate indifference and excessive force claims; not conditions of confinement. [Danley] even
goes so far as to suggest that failing to decontaminate a cell . . . from pepper spray would not
constitute a conditions-of-confinement claim.”) (citing Danley, 540 F.3d at 1308–09
(“[S]ubjecting a prisoner to special confinement that causes him to suffer increased effects of
environmental conditions—here, the pepper spray lingering in the air and on him—can constitute
excessive force. This circumstance is to be distinguished from environmental conditions that
generally affect the inmates in the jail, which are analyzed as conditions of confinement
claims.”)). Accordingly, Plaintiff has not sufficiently alleged that Defendants violated his Eighth
Amendment right against cruel and unusual punishment by leaving him in a cell contaminated by
pepper spray. 29 Therefore, the Court should GRANT Defendant’s Motion to Dismiss Plaintiff’s
Eighth Amendment conditions of confinement claim.

29

Even if Plaintiff had alleged facts sufficient to state a conditions of confinement claim based on the
lingering pepper spray, Defendants would be granted qualified immunity on that claim. McNeeley, 649
F. App’x at 724 (“In any event, McNeeley cites no law clearly establishing a conditions-of-confinement
claim based on the failure to decontaminate the prisoner or his cell from pepper spray.”).
62

J.

Supervisory Liability Claims

Section 1983 liability must be based on something more than a defendant’s supervisory
position or a theory of respondeat superior. Bryant v. Jones, 575 F.3d 1281, 1299 (11th Cir.
2009); Braddy v. Fla. Dep’t of Labor & Emp’t Sec., 133 F.3d 797, 801 (11th Cir. 1998). A
supervisor may be liable only through personal participation in the alleged constitutional
violation or when there is a causal connection between the supervisor’s conduct and the alleged
violations. Id. at 802. “To state a claim against a supervisory defendant, the plaintiff must allege
(1) the supervisor’s personal involvement in the violation of his constitutional rights; (2) the
existence of a custom or policy that resulted in deliberate indifference to the plaintiff’s
constitutional rights; (3) facts supporting an inference that the supervisor directed the unlawful
action or knowingly failed to prevent it; or (4) a history of widespread abuse that put the
supervisor on notice of an alleged deprivation that he then failed to correct.” Barr v. Gee, 437 F.
App’x 865, 875 (11th Cir. 2011).
Defendants contend that Plaintiff’s claims against Defendants Williams, Deal, Johnson,
and Smokes rely only upon their supervisory positions. However, for the reasons set forth
above, Plaintiff has alleged that Defendants Williams, Deal, Johnson, and Smokes personally
participated in the certain violations and deprivations stated in his Complaint. (Doc. 54-1, p. 22.)
Accordingly, as it appears he is alleging liability based on more than just those Defendants’
supervisory positions, the Court should DENY this portion of Defendants’ Motion to Dismiss.30
III.

Whether Defendants are Entitled to Qualified Immunity
Defendants argue that, even if Plaintiff states plausible claims for relief against them,

they are entitled to qualified immunity as to those claims. (Doc. 41-1, p. 35.) “The qualified30

Plaintiff is forewarned that, to the extent he relies upon respondeat superior principles, his claims will
not survive. However, at this early stage, it appears Plaintiff relies upon these Defendants’ direct
involvement.
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immunity defense reflects an effort to balance ‘the need to hold public officials accountable
when they exercise power irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably.’” Jones v. Fransen, 857 F.3d
843, 850–51 (11th Cir. 2017) (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “The
doctrine resolves this balance by protecting government officials engaged in discretionary
functions and sued in their individual capacities unless they violate ‘clearly established federal
statutory or constitutional rights of which a reasonable person would have known.’” Id. at 851
(citing Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010) (quotation marks and
brackets omitted)).
“As a result, qualified immunity shields from liability ‘all but the plainly incompetent or
one who is knowingly violating the federal law.’” Id. (citing Lee v. Ferraro, 284 F.3d 1188,
1194 (11th Cir. 2002)). However, “the doctrine’s protections do not extend to one who ‘knew or
reasonably should have known that the action he took within his sphere of official responsibility
would violate the constitutional rights of the [plaintiff].’” Id. (citing Harlow v. Fitzgerald, 457
U.S. 800, 815 (1982) (internal quotation marks and alteration omitted)).

Additionally,

“[b]ecause qualified immunity is only a defense to personal liability for monetary awards
resulting from government officials performing discretionary functions, qualified immunity may
not be effectively asserted as a defense to a claim for declaratory or injunctive relief.” Ratliff v.
DeKalb Cty., 62 F.3d 338, 340 n.4 (11th Cir. 1995).
“To invoke qualified immunity, a public official must first demonstrate that he was acting
within the scope of his or her discretionary authority.” Fransen, 857 F.3d at 851 (citing Maddox
v. Stephens, 727 F.3d 1109, 1120 (11th Cir. 2013)). “[T]he term ‘discretionary authority,’ . . .
‘include[s] all actions of a governmental official that (1) were undertaken pursuant to the

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performance of his duties, and (2) were within the scope of his authority.’” Id. (citing Jordan v.
Doe, 38 F.3d 1559, 1566 (11th Cir. 1994) (internal quotation marks omitted)).
Here, it is clear Defendants were acting within their respective discretionary duties as
correctional officers when making decisions relevant to Plaintiff’s claims. Thus, the burden
shifts to Plaintiff to show that Defendants are not entitled to qualified immunity. Cottone v.
Jenne, 326 F.3d 1352, 1358 (11th Cir. 2003). To make this showing, Plaintiff must first establish
the violation of a constitutional right on the facts alleged. Saucier v. Katz, 533 U.S. 194, 200
(2001); Gilmore v. Hodges, 738 F.3d 266, 272 (11th Cir. 2013). As explained above, Plaintiff
has alleged conduct by Defendants that, if proven true, plausibly establishes a violation of
Plaintiff’s: (1) rights under RLUIPA, (2) First Amendment free exercise rights, (3) Fourth
Amendment right against unreasonable searches and seizures, and (4) rights under the Eighth
Amendment against Defendants’ exercise of excessive force, failure to intervene, and deliberate
indifference to his serious medical needs.

Consequently, his Complaint satisfies the first

qualified immunity prong.
Having alleged a constitutional violation, Plaintiff must next demonstrate that the
constitutional right was clearly established at the time of the alleged misconduct. Saucier, 533
U.S. at 200. 31 To determine “whether the law clearly established the relevant conduct as a
constitutional violation at the time that Defendant Officers engaged in the challenged acts,” the
defendants must have had “fair warning” that their conduct violated a constitutional right.”
Fransen, 857 F.3d at 851 (citing Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011)
(citations and quotation marks omitted)). “‘Fair warning’ comes in the form of binding case [ ]
law from the Supreme Court, the Eleventh Circuit, or the highest court of the state [ ] that
31

The Supreme Court has clarified, however, that courts need not analyze these qualified immunity steps
sequentially. See Pearson, 555 U.S. at 236.
65

‘make[s] it obvious to all reasonable government actors, in the defendant’s place, that what he is
doing violates a federal law.’” Id. (citing Priester v. City of Riviera Beach, 208 F.3d 919, 926
(11th Cir. 2000) (citation omitted)).
“A plaintiff may demonstrate in any one of three ways that a defendant had ‘fair warning’
that the right he violated was clearly established.” Id. at 852 (citing Loftus v. Clark-Moore, 690
F.3d 1200, 1204 (11th Cir. 2012) (citation and internal quotation marks omitted)). “First, a
plaintiff may point to binding precedent that is materially similar.” Id. (citing Loftus, 690 F.3d at
1204). “This method requires [the Court] to consider ‘whether the factual scenario that the
official faced is fairly distinguishable from the circumstances facing a government official in a
previous case.’” Id. (citing Loftus, 690 F.3d at 1204). “Second, a plaintiff may invoke a
‘broader, clearly established principle’ that he asserts ‘should control the novel facts [of the]
situation.’” Id. (citing Loftus, 690 F.3d at 1204–05 (citation and internal quotation marks
omitted)). “Because ‘fair warning’ is the driving force behind a determination that a right has
been clearly established, when a plaintiff proceeds in this way, he must show that case [ ] law
demonstrated the principle with ‘obvious clarity . . . so that every objectively reasonable
government official facing the circumstances would know that the official’s conduct did violate
federal law when the official acted.’” Id. (citing Loftus, 690 F.3d at 1205 (citation and internal
quotation marks omitted)). “The violation of a right may also fall into this category when ‘[t]he
reasoning, though not the holding of prior cases . . . send[s] the same message to reasonable
officers in novel factual situations.’” Id. (citing Mercado v. City of Orlando, 407 F.3d 1152,
1159 (11th Cir. 2005) (citation and internal quotation marks omitted)).
“Finally, a right is ‘clearly established’ when the defendant’s conduct ‘lies so obviously
at the very core of what the [constitutional amendment] prohibits that the unlawfulness of the

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conduct was readily apparent to the official, notwithstanding the lack of case law.’” Id. (citing
Loftus, 690 F.3d at 1205 (citation and internal quotation marks omitted)). Courts “recognize the
obvious-clarity exception where conduct is ‘so bad that case law is not needed to establish that
the conduct cannot be lawful.’” Id. (citing Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir.
2002)). “[T]his category [is] ‘narrow.’” Id. (citing Priester, 208 F.3d at 926–27.) Using these
standards, the Court will determine whether Plaintiffs’ rights under RLUIPA, the free exercise
clause, the Fourth Amendment, and the Eighth Amendment were “clearly established” such that
Defendants are not entitled to qualified immunity.
A.

RLUIPA and Free Exercise Clause Claims based on Exposure of Awrah

As to Plaintiff’s RLUIPA and First Amendment free exercise claims, Plaintiff points to
no United States Supreme Court, Eleventh Circuit, or Georgia Supreme Court case law which
clearly establishes that Defendants’ escort of him through the prison yard with his awrah exposed
was unconstitutional or violated RLUIPA, and the Court can find none. 32 See Keating, 598 F.3d
at 766 (Plaintiff “‘must point to law as interpreted by the Supreme Court, the Eleventh Circuit, or
the Supreme Court of [the state]’ to show that the constitutional violation was clearly
established.”) (citing Mercado, 407 F.3d at 1159).

32

As discussed above, at least one district court outside the Eleventh Circuit has held that actions similar
to those taken by Defendants in this case violated the religious rights of a prisoner plaintiff. See
Woodward v. Perez, No. 12 CV. 8671(ER), 2014 WL 4276416 (S.D.N.Y. Aug. 29, 2015) (plaintiff
inmate showed that defendants substantially burdened his religious belief that he may not be naked in the
presence of others by forcing him to shower in the presence of a female prison guard and a homosexual
inmate). However, that same court held that “no case law from the United States Supreme Court or the
Second Circuit Court of Appeals supports the theory” that an inmate has a right to refrain from showering
naked in the presence of others and granted defendants qualified immunity. Id. at *7. Similarly, here,
neither the United States Supreme Court, the Eleventh Circuit Court of Appeals, nor the Supreme Court
of Georgia has held that any actions similar to those taken by Defendants violate the First Amendment
free exercise clause or RLUIPA. Accordingly, in this Circuit, Plaintiff’s right against having his genitals
exposed through boxer shorts was not clearly established at the time of Defendants’ actions.
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Moreover, Defendants’ provision of only one pair of boxer shorts does not appear to be
so “obviously at the very core of what the [First Amendment and RLUIPA] prohibits” that the
unlawfulness of the officers’ conduct should have been readily apparent to them. Accordingly,
Defendants’ decision to escort Plaintiff through the prison in one pair of wet, translucent boxer
shorts, in view of other men, did not violate clearly established law. As a result, Defendants are
entitled to qualified immunity as to Plaintiff’s RLUIPA and free exercise claims based on
exposure of his awrah. The Court should, therefore, GRANT this portion of Defendants’
Motion to Dismiss and DISMISS Plaintiff’s claims for monetary relief for violation of the
RLUIPA and First Amendment due to exposure of his awrah.
However, qualified immunity is not a bar to declaratory and injunctive relief. Ratliff, 62
F.3d at 340, n.4. As discussed above, Defendants make no independent argument, such as
mootness, regarding Plaintiff’s claims for declaratory or injunctive relief as to Plaintiff’s
exposure of awrah claims. Thus, his claims for declaratory and injunctive relief on Plaintiff’s
RLUIPA claim for exposure of his awrah shall proceed.
B.

Fourth Amendment Search and Seizure

As discussed above, Plaintiff plausibly alleges Defendants Abalos, Whitfield, and
Santiago violated his Fourth Amendment right against unreasonable searches and seizures.
Although relevant Fourth Amendment precedent exists in this Circuit, no binding case involves a
factual scenario that is similar enough to the one here to have put Defendants on notice that they
violated a clearly established right. Accordingly, the Court must determine whether existing
“case[ ]law demonstrates the [unconstitutionality of Defendants’ actions] with ‘obvious
clarity . . . so that every objectively reasonable government official . . . [would have] know[n]
that the official’s conduct did violate federal law when the official acted.’” Fransen, 857 F.3d at

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851 (citing Loftus, 690 F.3d at 1205 (citation and internal quotation marks omitted)). It appears
two Eleventh Circuit cases could have informed Defendants whether their actions comported
with the Fourth Amendment: Moton v. Walker, 545 F. App’x 856 (11th Cir. 2013), and Evans v.
Stephens, 407 F.3d 1272 (11th Cir. 2005).
In Moton, a correctional officer conducted a visual body-cavity search of an inmate “as a
part of a routine cell inspection” which required the inmate to repeatedly “bend at the waist,
spread his buttocks, and cough[.]” The Eleventh Circuit held that the correctional officer was
entitled to qualified immunity as to the prisoner’s Fourth Amendment claim.

The Court

explained that, while “[Eleventh Circuit] case law has not established that a visual body cavity
inspection as part of a routine search is constitutional under the Fourth Amendment[ . . . ], more
importantly, our case law has not clearly established that such a search is unconstitutional.
Therefore, under Moton, officers in this Circuit are entitled to qualified immunity when
conducting visual body-cavity searches pursuant to routine cell inspections.
However, in Evans, the Eleventh Circuit found that an arresting officer was not entitled to
qualified immunity following an investigatory strip search of two detainees at a county jail. In
that case, the arresting officer conducted the detainees’ strip search in “a broom closet or supply
room” where “[l]ittle respect for privacy was observed.” Evans, 407 F.3d at 1281. Specifically,
“[e]ach Plaintiff was forced to disrobe, ridiculed, and penetrated by an object in front of the
other.” Id. The Court noted that the “physical aspects of the searches [were] [ ] disturbing,” as
the detainees were thrown into each other during the search, causing them to collapse. Id.
Elaborating on the unreasonableness of the search, the Court explained that, “while conducting
the search, [the arresting officer] inserted the same baton or club—without intervening
sanitation—in each Plaintiffs’ anus and used the same baton or club to lift each man’s testicles.”

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Id. The Court then concluded that the arresting officer was not entitled to qualified immunity,
reasoning that “[n]o objectively reasonable policeman could have believed that the degrading
and forceful manner of th[e] strip search . . . was ‘reasonable’ in the constitutional sense.” Id. at
1283.
The facts of the present case fall far short of Evans. The search conducted in this case is
similar to the search conducted in Moton, as it took place inside a prison cell as part of a routine
shakedown. However, unlike the search in Moton, Defendants conducted Plaintiff’s body-cavity
search in the presence of another inmate. Also unlike the search in Moton, Defendants used
force against Plaintiff when conducting the body-cavity search by spraying him with pepper
spray. In this case, as in Evans, force was applied to conduct the body-cavity search. However,
the amount of force applied in this case does not rise to the level of force applied against the
detainees in Evans. For example, Defendants did not penetrate Plaintiff or his cellmate with any
objects to conduct the search, as was the case in Evans. Therefore, the search was not unsanitary
or overly invasive in the same manner as the search in Evans.
Accordingly, while Plaintiff’s body-cavity search may have been less reasonable than the
search in Moton, it was far more reasonable than the search in Evans. Unlike the situation in
Evans, an objectively reasonable policeman would not have clearly known that the cavity search
of Plaintiff violated the Fourth Amendment. Indeed, as noted above, two of the four factors that
the Eleventh Circuit has established for the analysis of these claims weigh in favor of a finding
of reasonableness. As a result, neither Moton nor Evans could have provided Defendants with
the type of “fair notice” necessary to overcome qualified immunity, and Defendants are,
therefore, entitled to qualified immunity as to Plaintiff’s Fourth Amendment claims.

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Consequently, the Court should GRANT Defendants’ Motion to Dismiss Plaintiff’s Fourth
Amendment claims for monetary relief.
However, as explained above, qualified immunity is not a bar to declaratory and
injunctive relief.

Ratliff, 62 F.3d at 340, n.4.

Defendants make no argument, other than

dismissal for failure to state a claim, as to Plaintiff’s Fourth Amendment claims for declaratory
or injunctive relief. Thus, Plaintiff’s Fourth Amendment claims for declaratory and injunctive
shall proceed.
C.

Eighth Amendment Excessive Force Claim

“In this Circuit, a defense of qualified immunity is not available in cases alleging
excessive force in violation of the Eighth Amendment, because the use of force ‘maliciously and
sadistically to cause harm’ is clearly established to be a violation of the Constitution by the
Supreme Court.” Skrtich v. Thornton, 280 F.3d 1295, 1301 (11th Cir. 2002) (citing Johnson v.
Breeden, 280 F.3d 1308 (11th Cir. 2002)). “There is simply no room for a qualified immunity
defense when the plaintiff alleges such a violation.” Id. For this reason, Defendants are not
entitled to qualified immunity as to Plaintiff’s Eighth Amendment excessive force claims. 33 The
Court should DENY Defendants’ Motion to Dismiss Plaintiff’s Eighth Amendment excessive
force claims.

33

Moreover, as discussed above, Plaintiff alleges he was attempting to comply with the body-cavity
search when Defendant Abalos pepper sprayed him and that he was unconscious when Defendants Abalos
and Santiago used the “chicken wing” maneuver against him. The Eleventh Circuit has held that it is
clearly established that “continu[ing] to use force against a compliant inmate” constitutes excessive force.
Jacoby v. Baldwin Cty., 666 F. App’x 759, 765–66 (11th Cir. 2016) (citing Danley, 540 F.3d at 1309 for
the proposition that “[w]hen jailers continue to use substantial force against a prisoner who has clearly
stopped resisting—whether because he has decided to become compliant, he has been subdued, or he is
otherwise incapacitated—that use of force is excessive”).
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D.

Eighth Amendment Failure to Intervene Claim

As discussed above, Plaintiff plausibly states a claim that Defendants Williams, Deal,
Johnson, McFarlane, Smokes, Davis, Santiago, and Griffin failed to intervene when Defendant
Abalos sprayed him with pepper spray.

Likewise, Plaintiff states a claim that Defendants

Whitfield, Davis, Griffin, McFarlane, and Jones again failed to intervene when Defendants
Abalos and Santiago placed Plaintiff in the “chicken wing” maneuver. Accordingly, the Court
must determine whether Plaintiff’s right to intervention from the officers standing nearby was
“clearly established” at the time Defendants failed to intervene on his behalf.
Just as there is “no room for a qualified immunity defense when the plaintiff alleges” that
a Defendant used “excessive force in violation of the Eighth Amendment,” Skrtich, 280 F.3d at
1301, a reasonable correctional officer would know that he violates an inmate’s rights when he
fails to intervene during a fellow officer’s use of excessive force against the inmate. See Priester
v. City of Riviera Beach, 208 F.3d 919, 924 (11th Cir. 2000) (“[I]f a police officer, whether
supervisory or not, fails or refuses to intervene when a constitutional violation such as an
unprovoked beating takes place in his presence, the officer is directly liable[.]” (alterations in
original)) (citing Ensley v. Soper, 142 F.3d 1402, 1407–08 (11th Cir. 1998)).

Therefore,

Defendants Williams, Deal, Johnson, McFarlane, Smokes, Davis, Santiago, and Griffin are not
entitled to qualified immunity as to their failure to intervene during Plaintiff’s exposure to pepper
spray. For similar reasons, Defendants Whitfield, Davis, Griffin, McFarlane, and Jones—all
members of the CERT team that transported Plaintiff to the medical department—are not entitled
to qualified immunity for failing to intervene when Defendants Abalos and Santiago placed
Plaintiff in the “chicken wing” maneuver.

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E.

Eighth Amendment Deliberate Indifference to Medical Needs

Similarly, as to Plaintiff’s Eighth Amendment deliberate indifference to medical needs
claims, Eleventh Circuit case law demonstrates that Plaintiff had a clearly established right
against prolonged exposure to pepper spray. In McNeely, 649 F. App’x at 723, the Eleventh
Circuit rejected defendants’ qualified immunity arguments regarding the plaintiff’s claims
because defendants “were on notice that delaying a proper decontamination for over twenty
minutes despite complaints about the effects of pepper spray could result in a clearly established
constitutional violation.” Accordingly, Defendants are not entitled to qualified immunity as to
this claim.
The Court is not concluding today that Defendants did in fact violate Plaintiff’s Eighth
Amendment rights. On the record before the Court, we cannot know. However, if the Court
accepts Plaintiff’s factual allegations as true, as it must, then the actions that Defendants
allegedly took were, “in the light of the preexisting law—beyond what the Constitution would
allow under the circumstances.” Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1317 (11th Cir.
2010). For these reasons, the Court should DENY this portion of Defendants’ Motion.
III.

Plaintiff’s Motion for Injunction
In his Motion for Injunction, Plaintiff alleges that Defendant Smokes prevented him from

receiving legal materials and reading materials in violation of his First, Fifth, and Fourteenth
Amendment rights. (Doc. 83.) Plaintiff also alleges that, in March 2015, Defendant Smokes
tried to force Plaintiff to shave his beard; that his grievance coordinator and grievance counselor
ignored the grievances concerning this forced shaving claim; and that these two individuals are
“working in concert with Defendant Smokes” to conceal Defendant Smokes’ unconstitutional
actions. (Id.)

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It appears Plaintiff may be seeking to bring additional claims and to add additional
defendants through his Motion for Preliminary Injunction, which he may not do. See Fed. R.
Civ. P. 15(a) (“A party may amend his complaint once as a matter of right . . . within twenty-one
(21) days after service of a motion under Rule 12(b), (e), or (f). In all other cases, a party may
amend its pleading only with the opposing party’s written consent or the court’s leave.”)
Plaintiff filed his Motion several months after Defendants filed their Motion to Dismiss.
Plaintiff has received neither Defendants’ consent to add these claims nor sought the Court’s
permission to add additional claims or defendants. Furthermore, even if Plaintiff had properly
amended his Complaint to assert additional claims and to add additional defendants, his Motion
would be subject to dismissal as these claims are not related to the claims asserted in his original
complaint. Additionally, he could not have exhausted his administrative remedies as to these
claims at the time this lawsuit was filed as these claims arose after the filing of this suit.
Additionally, Plaintiff is not entitled to interlocutory injunctive relief at this time. To be
entitled to a temporary restraining order or preliminary injunction, a plaintiff must demonstrate:
(1) a substantial likelihood of ultimate success on the merits; (2) that a restraining order or
injunction is necessary to prevent irreparable injury; (3) that the threatened injury outweighs the
harm that the restraining order or injunction would inflict on the other party; and (4) that the
restraining order or injunction would not be adverse to the public interest. Schiavo ex rel.
Schindler v. Schiavo, 403 F.3d 1223, 1225–26 (11th Cir. 2005). Similarly, a plaintiff requesting
a permanent injunction must satisfy the following four-factor test: (1) that [the plaintiff] has
suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are
inadequate to compensate for that injury; (3) that, considering the balance of hardships between
the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest

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would not be disserved by a permanent injunction. eBay, Inc. v. MercExchange, L.L.C., 547
U.S. 388, 391 (2006). Thus, “[t]he standard for a permanent injunction is essentially the same as
for a preliminary injunction except that the plaintiff must show actual success on the merits
instead of a likelihood of success.” Siegel v. LePore, 234 F.3d 1163, 1213 (11th Cir. 2000)
(Carnes, J., dissenting). In either case, an “injunction is an extraordinary and drastic remedy not
to be granted unless the movant clearly established the ‘burden of persuasion’ as to the four
requisites.” Horton v. City of Augustine, 272 F.3d 1318, 1326 (11th Cir. 2001).
As explained above, while Plaintiff attempts to assert additional claims and to add
additional defendants by way of his Motion for Injunction, he cannot do so. Because those
claims are not before the Court, the Court obviously cannot grant Plaintiff preliminary or
permanent injunctive relief on the claims. Moreover, two of the three individuals allegedly
responsible for violating Plaintiff’s constitutional rights in this instance are not properly before
the Court. Because these proposed defendants who would be responsive to the injunction are not
parties to this action, this Court lacks jurisdiction to enter any injunction against them. See In re
Infant Formula Antitrust Litig., MDL 878 v. Abbott Labs., 72 F.3d 842, 842–43 (11th Cir. 1995)
(stating that district court lacks subject-matter jurisdiction to issue preliminary or permanent
injunction against nonparty). Moreover, at this point, Plaintiff has not established a substantial
likelihood of ultimate success on the merits of his claims. For these reasons, I RECOMMEND
that the Court DENY Plaintiff’s Motion for Injunction.
III.

Plaintiff’s Motions for Judgment as a Matter of Law and Motion for Default
Judgment, (docs. 46, 71, 72, 73, 75)
Plaintiff has inundated this Court with additional filings, which he titles “Motions for

Judgment as a Matter of Law,” (docs. 71, 72, 73, 75), as well as a Motion titled “Motion for
Default Judgment,” (doc. 46). In each of these essentially identical Motions, Plaintiff requests
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this Court enter judgment against Defendants, claiming they have failed to respond to his myriad
filings and have failed to sign documents filed with the Court. Plaintiff’s Motions, which are
properly construed as motions for default, are meritless. Defendants have properly and timely
responded to Plaintiff’s filings and have signed each of their filings with this Court.
Accordingly, the Court should DENY Plaintiff’s Motions for Judgment as a Matter of Law and
Motion for Default Judgment.
CONCLUSION
For the reasons and in the manner set forth above, I RECOMMEND that the Court
GRANT in part and DENY in part Defendants’ Motion to Dismiss. (Doc. 41.) Further, the
Court should DENY Plaintiff’s Motion for Default Judgment, DENY Plaintiff’s Motions for
Judgment as a Matter of Law, and DENY Plaintiff’s Motion for Injunction.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not

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meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon the parties.
SO ORDERED and REPORTED and RECOMMENDED, this 9th day of August,
2017.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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