Burgess v. Jones

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

JOHNNY BURGESS,

Plaintiff,

v. Case No. 5:17-cv-131-Oc-39PRL

FNU ROUSE, and JONATHAN JORGE,

Defendants.

_______________________________

ORDER

I. Status

Plaintiff Johnny Burgess initiated this action on March 29,

2017, by filing a pro se Civil Rights Complaint (Doc. 1;

Complaint). After the Court dismissed the claims against the

Secretary of the Florida Department of Corrections (FDOC) and the

prison warden, see Order (Doc. 13), two Defendants remain: Jonathan

Jorge and FNU Rouse, corrections officers at Lake Correctional

Institution (LCI). In his Complaint, Plaintiff asserts Defendants

failed to protect him from an inmate attack in violation of the

Eighth Amendment. See Complaint at 5. As relief, Plaintiff seeks

compensatory and punitive damages. Id. at 7-8.

Before the Court is Defendants’ Motion for Summary Judgment

(Doc. 102; Motion). In support of their Motion, Defendants provide

Plaintiff’s FDOC face sheet (Doc. 118-1); a provision of the

Florida Administrative Code (Doc. 118-2); an FDOC incident report

dated July 23, 2015 (Doc. 118-3; Incident Report); an investigative

report by the Inspector General’s Office (Doc. 118-4; IG Report);

Defendant Jorge’s affidavit (Doc. 118-5; Jorge Aff.); Defendant

Jorge’s responses to Plaintiff’s interrogatories (Doc. 118-6;

Jorge Interr. Resp.); the transcript of the inspector’s interview

with Defendant Jorge (Doc. 118-7; Jorge Interview Tr.); the

affidavit of Defendant Rouse (Doc. 118-8; Rouse Aff.); Defendant

Rouse’s responses to Plaintiff’s interrogatories (Doc. 118-9;

Rouse Interr. Resp.); the transcript of the inspector’s interview

with Plaintiff (Doc. 118-10; Pl. Interview Tr.); a MINS report

dated July 20, 2015 (Doc. 118-11); copies of Plaintiff’s grievances

and responses (Doc. 118-12); excerpts of Plaintiff’s deposition

transcript (Doc. 118-13; Depo. Tr.); an FDOC disciplinary report

against Plaintiff dated July 23, 2015 (Doc. 118-14); and

Plaintiff’s medical records (Doc. 118-15; Med. Records).

Plaintiff responded to the Motion (Doc. 108; Response), with

exhibits, most of which are duplicative of evidence Defendants

offer, including his deposition transcript, Defendants’ responses

to his interrogatories, and his medical records. See Response at

12-13 (Plaintiff’s index of exhibits).1 Plaintiff also offers his

own affidavits, the affidavits of two other inmates, multiple sick-

1 Plaintiff’s exhibits are appended to his Response (Doc. 108). As

with all documents referenced in this Order, the Court will cite

the exhibits according to the page number assigned by the Court’s

electronic case management system.

call request forms he submitted following the incident, and

provisions of the Florida Administrative Code. Id.

With leave of Court, see Order (Doc. 112), Defendants replied

(Doc. 119; Reply). Accordingly, the Motion is ripe for this Court’s

review.

II. Summary Judgment Standard

Under Rule 56, “[t]he court shall grant summary judgment if

the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). An issue is genuine when the

evidence is such that a reasonable jury could return a verdict in

favor of the nonmovant. Mize v. Jefferson City Bd. of Educ., 93

F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville

Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A] mere

scintilla of evidence in support of the non-moving party’s

position is insufficient to defeat a motion for summary judgment.”

Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243,

1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 252 (1986)).

The party seeking summary judgment bears the initial burden

of demonstrating to the court, by reference to the record, that

there are no genuine issues of material fact to be determined at

trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th

Cir. 1991). The record to be considered on a motion for summary

judgment may include “depositions, documents, electronically

stored information, affidavits or declarations, stipulations

(including those made for purposes of the motion only),

admissions, interrogatory answers, or other materials.” Rule

56(c)(1)(A).

“When a moving party has discharged its burden, the non-

moving party must then go beyond the pleadings, and by its own

affidavits, or by depositions, answers to interrogatories, and

admissions on file, designate specific facts showing that there

is a genuine issue for trial.” Jeffery v. Sarasota White Sox,

Inc., 64 F.3d 590, 593–94 (11th Cir. 1995) (internal citations

and quotation marks omitted).

Substantive law determines the materiality of facts, and

“[o]nly disputes over facts that might affect the outcome of the

suit under the governing law will properly preclude the entry of

summary judgment.” Anderson, 477 U.S. at 248. In determining

whether summary judgment is appropriate, a court “must view all

evidence and make all reasonable inferences in favor of the party

opposing summary judgment.” Haves v. City of Miami, 52 F.3d 918,

921 (11th Cir. 1995) (citing Dibrell Bros. Int’l, S.A. v. Banca

Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994)).

III. Plaintiff’s Allegations2

In his Complaint, Plaintiff alleges Defendant Jorge

orchestrated a plan to have another inmate attempt to kill him.

See Complaint at 6. The incident occurred on July 23, 2015, in the

mental health unit at LCI. Id. at 5. While Plaintiff was attending

a mental health “group” session, another inmate, Martavius

Henderson, stabbed Plaintiff with a shank/knife (“weapon”) (“the

stabbing incident”). Id. at 5, 6. Plaintiff states he told both

Defendants that Henderson had a weapon and would kill Plaintiff if

the two inmates were “allowed in the group room” together Id. at

5.

In his first of two affidavits, Plaintiff avers he had been

in fear of Henderson since Henderson attacked him the week before

the stabbing incident (“the first incident”). See Response at 15.

On the morning of the stabbing incident, inmate Henderson, from

his cell, showed Plaintiff he had a weapon, and Henderson

threatened to kill Plaintiff with it. Id. At that time, Defendant

Jorge and the mental health official were on the wing to determine

2 Because this case is before the Court on Defendants’ Motion for

Summary Judgment, the Court must credit Plaintiff’s version of

events. Plaintiff’s allegations are drawn from his verified

Complaint and the evidence he offers in Response to the Motion.

The factual assertions in Plaintiff’s Complaint, which is verified

under penalty of perjury, satisfy “Rule 56’s requirements for

affidavits and sworn declarations,” and are therefore given the

same weight as factual statements made in an affidavit. See

Stallworth v. Tyson, 578 F. App’x 948, 950 (11th Cir. 2014).

which inmates wanted to participate in group. Plaintiff claims he

got Defendant Jorge’s attention and “informed him that inmate

Henderson had a [weapon] that he’d try to kill [Plaintiff] with”

if the two were placed together in group. Id. at 15-16. Plaintiff

tried to discreetly inform Defendant Jorge of his fear because

Henderson’s cell was nearby: Plaintiff says he whispered the

warning to Defendant Jorge and held up a piece of paper that said,

“HE’S GOT A KNIFE!” Id. at 15, 16. Plaintiff avers Defendant Jorge

ignored his worries because Plaintiff and Jorge had prior “problems

and disputes,” and Plaintiff had recently filed a grievance against

Jorge, which was reported to the Inspector General’s Office for

investigation. Id. at 16.

Plaintiff was brought to the group room before Henderson. Id.

Plaintiff informed Defendant Rouse, who was in the group room with

him, that Henderson had a weapon and would try to kill Plaintiff

with it. Plaintiff avers Defendant Rouse laughed his warning off

as a joke.3 Defendant Rouse also stated to Plaintiff, “no ones

3 In his Complaint, Plaintiff asserts Defendants either planned the

attack or permitted it to occur in retaliation for Plaintiff

getting feces on them during cell extractions. Complaint at 6.

Defendants deny these allegations. Defendant Jorge states he wore

cell extraction suits when dealing with Plaintiff, see Jorge

Interr. Resp. ¶ 22, and Defendant Rouse denied having been involved

in any cell extractions with Plaintiff, see Rouse Interr. Resp. ¶¶

21, 22. Plaintiff does not assert a First Amendment retaliation

claim against Defendants. His only claim is a failure-to-protect

under the Eighth Amendment. As such, the Court limits its factual

summary to legally relevant facts.

[sic] got a knife. And we wont [sic] let no one kill you.” Id.

According to Plaintiff, Defendant Jorge extracted Henderson from

his cell. Id. From the group room, Plaintiff observed Defendant

Jorge talking to Henderson and noticed that Jorge failed to search

Henderson before escorting him to the group room. Id.

Plaintiff describes the following occurred as Henderson

entered the group room: “By the time inmate Henderson walked

through the threshold of the group room door, he was pulling his

hand back up out of his pants with the [weapon] in his hand.” Id.

Upon seeing the weapon, Plaintiff shouted, “he’s got a knife,” and

he rushed towards Henderson to protect himself from being stabbed.

Id. at 16-17. Defendant Jorge grabbed Plaintiff, affording

Henderson an opportunity to stab Plaintiff. Id. at 17.

Plaintiff offers the affidavits of two inmates, Morilus

Ronald and Lane Trimanye, who were housed on the mental health

wing with him and Henderson. Inmate Ronald avers he witnessed

Plaintiff “tell [Defendant] Jorge that Henderson had a [weapon],”

but Defendant Jorge ignored Plaintiff. Id. at 21. Ronald further

states Plaintiff tried to inform Defendant Rouse about the threat,

but Defendant Rouse also ignored him. Id. Ronald explains what

happened when Defendant Jorge escorted Henderson into the group

room: “[Defendant] Jorge let Henderson rushing [sic] [Plaintiff]

and stabbed [Plaintiff].” Id.

Inmate Trimanye avers he was housed on the mental health wing

with Plaintiff and Henderson on the day of the first incident. Id.

at 23, 24. Trimanye avers Defendant Rouse “served and investigated”

a disciplinary report against Henderson following the first

incident. Id. at 23. Trimanye characterizes the first incident as

“the talk of the mental health unit.” Id. After the first incident,

Trimanye was moved to another wing of the prison. Id. at 24.

However, he says he later “heard of staff allowing Henderson into

the [mental health] group with a weapon,” which resulted in

Plaintiff’s stabbing. According to Trimanye, the mental health

official overheard Plaintiff warn Defendant Rouse of Henderson’s

threat and possession of a weapon. Id. The mental health official

told Trimanye he did not report what he overheard because he was

scared to lose his job. Id.

Trimanye, in a second affidavit, explains he was later

transferred to two different correctional institutions along with

Henderson. Id. at 27. He avers the following:

Henderson bragged . . . about how he had almost

killed [Plaintiff] and gotten away with it …

because officers did not like [Plaintiff] so

they covered up the evidence… [P]lus Henderson

bragged about how [Plaintiff] had snitched and

forewarned officers Jorge and Rouse that he

had a knife but they wouldn’t listen to him ….

Henderson stated that he consulted with

officer Jorge to leave his handcuffs on 1

click so that he could easily slide his hands

out of the handcuffs and jump on [Plaintiff]

and officer Jorge agreed.

Id. at 27-28. Henderson also stated, however, Defendant Jorge did

not know Henderson had a weapon; Defendant Jorge “only wanted

Henderson to jump on [Plaintiff,] not stab him.” Id. at 28.

IV. Summary of the Arguments

In their Motion, Defendants argue there is no evidence

demonstrating they were deliberately indifferent to a serious risk

of harm, they are entitled to qualified immunity, and Plaintiff

cannot recover compensatory or punitive damages under 42 U.S.C. §

1997e(e). See Motion at 13, 16, 17. Additionally, Defendants assert

Eleventh Amendment protects them from damages in their official

capacities. Id. at 15.

Defendants argue there is no evidence they knew of the first

incident between inmate Henderson, and Plaintiff initiated the

stabbing incident, thus causing his own injury. Id. at 13.

Defendants state, “[t]here is no evidence to support Plaintiff’s

assertion that [they] knew ahead of time that Inmate Henderson

intended to attack Plaintiff.” Id. In their Reply, Defendants

contend Plaintiff “can show no evidence” they knew Henderson posed

a threat of harm to Plaintiff. Reply at 3. They reason, “Defendants

did not place Plaintiff in any vulnerable position or at risk

because Plaintiff himself initiated the attack.” Id.

Defendants rely in part upon internal FDOC records and their

own statements. In the incident report, the reporting employee

recorded, “[Defendant] Jorge informed me during this group session

[Plaintiff] . . . stood up out of his chair and charged at Inmate

Henderson . . . . [who] stabbed [Plaintiff] in the neck with a

homemade knife.” Incident Report at 1. Defendants aver in their

affidavits that they saw Plaintiff rush at Henderson. Defendant

Jorge states, Plaintiff “aburuptly jumped out of his chair and

charged Henderson.” Jorge Aff. at 4. According to Defendant Rouse,

“[P]laintiff stood up and charged at Inmate Henderson and attempted

to fight him.” Rouse Aff. at 3.

Defendants also rely upon Plaintiff’s deposition testimony

and his statements to the inspector who investigated the incident

on behalf of the Inspector General’s Office. In his deposition,

Plaintiff testified he “rushed” at Henderson when Henderson walked

into the group room. Depo. Tr. at 6. Plaintiff told the inspector

he knew Henderson had a weapon but “still had an altercation with

him.” Pl. Interview Tr. at 5. Additionally, Plaintiff informed the

inspector he (Plaintiff) told Henderson to bring the weapon with

him to group because Plaintiff wanted the officers to catch

Henderson with it. Id. at 6. The inspector referred the matter to

the State Attorney’s Office. IG Report at 12. The State Attorney’s

Office declined to prosecute Henderson, stating “the victim

[Plaintiff] was the individual who instigated the fight in a rather

calculated way to get the suspect [Henderson] in trouble.” Id. at

14.

Defendants explain in their affidavits the process for moving

inmates from their cells to the group room. On the day in question,

Rouse strip-searched Plaintiff and escorted him to the group room.

See Rouse Aff. at 2. Defendant Jorge avers he strip-searched

Henderson and brought him to the group room after Plaintiff was

already there. See Jorge Aff. at 3-4. See also Jorge Interr. Resp.

¶ 24 (stating Defendant Jorge searched Inmate Henderson “prior to

pulling him out for group”). Defendants deny any recollection or

knowledge of the first incident between Plaintiff and Henderson.

See Jorge Aff. at 1-2; Rouse Aff. at 3; Jorge Interr. Resp. ¶ 10;

Rouse Interr. Resp. ¶ 10. However, neither Defendant directly

disputes Plaintiff informed them, prior to the stabbing incident,

that Henderson had a weapon and planned to harm Plaintiff during

group. See Jorge Aff. at 3-4; Rouse Aff. at 3.

In response to the Motion, Plaintiff asserts he did not

instigate the stabbing incident. He acknowledges he told the

inspector and testified during deposition that he rushed at

Henderson. But he explains he did so to protect himself because he

realized Defendants were not going to do so. See Pl. Interview Tr.

at 5; Depo. Tr. at 6. During the interview with the inspector,

Plaintiff admitted he had the altercation with Henderson knowing

Henderson had a weapon, but he explained why:

I told the [prison guards] – before I came out

because I knew [Henderson] had [the weapon].

I knew he was gonna brang [sic] it. So what I

did was I try to set him up. I told him make

sure he brang [sic] it at the group with him.

So when I came out, I told the police [prison

guards] so they can catch him with it. But .

. . Officer Jorge . . . me and him had a

problem . . . . I tried to tell him, I said,

“Man, dude got a knife, you know what I’m

saying, he gonna try to do something to me,”

but he – I don’t know. He overlooked it.

Then I told the officer in the group home

. . . but he was saying something about don’t

worry about it, he ain’t gonna let nothing

happen. Ain’t gonna be a fight. They gonna

break it up regardless, so.

Pl. Interview Tr. at 5-6.

In his deposition, Plaintiff testified he “rushed” at inmate

Henderson because he believed the guards were not going to protect

him even though he told them inmate Henderson was planning to bring

a weapon to group. See Depo. Tr. at 6, 8. He elaborated that he

told the guards Henderson had a weapon and that the two of them

had a prior altercation, but “[the guards] let [Henderson] out of

his cell with th[e] [weapon].” Id. at 9.

Plaintiff agreed he was “trying to set up Henderson,” but he

disagreed with the characterization of him as the “instigator,”

saying he “was trying to get [the guards] to disarm [Henderson].”

Id. at 8. Plaintiff testified as follows:

I told the [guard] when [Henderson] showed

[the weapon] to me, I told him before they

pulled me in group. That’s when I found out

that morning, so I was like, Man, he got the

shank, hoping they go search him and take the

shank from him, but they just – that’s how I

thought it was going to turn out. . . . Usually

. . . if an inmate say that, especially in

that type of environment, because it’s a

mental health treatment facility, so it’s kind

of treated – it’s like different from

everywhere else, so like you tell the officer,

Man, that inmate got a knife, they going to

search him down or something, but they just

ignored it . . . .

Id. Plaintiff explains he believed if he told the prison guards

Henderson had a weapon, they would search Henderson and confiscate

the weapon, thereby protecting Plaintiff from the planned attack.

Id.

Legal Analysis & Conclusions of Law

A. Eleventh Amendment Immunity

Defendants assert they are entitled to Eleventh Amendment

immunity as to any claims against them for damages in their

official capacities. See Motion at 15. Plaintiff does not address

this argument. See Response. When a plaintiff sues a state actor

in his official capacity, “the action is in essence one for the

recovery of money from the state.” Zatler v. Wainwright, 802 F.2d

397, 400 (11th Cir. 1986). As such, “the state is the real,

substantial party in interest and is entitled to invoke its

sovereign immunity from suit even though individual officials are

nominal defendants.” Id. (finding the FDOC Secretary was immune

from suit in his official capacity).

Defendants are entitled to Eleventh Amendment immunity as to

any claim against them for monetary damages in their official

capacities. To that extent, Defendants’ motion is due to be

granted.

B. Qualified Immunity

An officer sued in his individual capacity “is entitled to

qualified immunity for his discretionary actions unless he

violated ‘clearly established statutory or constitutional rights

of which a reasonable person would have known.’” Black v.

Wigington, 811 F.3d 1259, 1266 (11th Cir. 2016) (quoting Case v.

Eslinger, 555 F.3d 1317, 1325 (11th Cir. 2009)). Qualified immunity

allows officers to exercise their official duties without fear of

facing personal liability. Alcocer v. Mills, 906 F.3d 944, 951

(11th Cir. 2018). The doctrine protects all but the plainly

incompetent or those who knowingly violate an inmate’s

constitutional rights. Id.

Upon asserting a qualified immunity defense, a defendant

bears the initial burden to demonstrate he was acting in his

discretionary authority at the relevant times. Dukes v. Deaton,

852 F.3d 1035, 1041-42 (11th Cir.), cert. denied, 138 S. Ct. 72

(2017). For purposes of this motion, the Court accepts Defendants’

assertions that they were acting within the scope of their

discretionary duties at the time of the stabbing incident. See

Motion at 16.4 As such, the burden shifts to Plaintiff. To overcome

4 Plaintiff’s assertion that Defendant Jorge was complicit in a

plan to harm Plaintiff suggests Jorge was not acting in the scope

a qualified-immunity defense, a plaintiff must demonstrate two

elements: the defendant’s conduct caused plaintiff to suffer a

constitutional violation, and the constitutional violation was

“clearly established” at the time of the alleged violation.

Alcocer, 906 F.3d at 951. Plaintiff alleges Defendants were

deliberately indifferent to a known risk of serious harm in

violation of the Eighth Amendment. The Court will set forth

relevant Eighth Amendment principles and then address whether

Plaintiff’s allegations overcome Defendants’ qualified-immunity

defense.

i. Eighth Amendment Deliberate Indifference

Prison officials are not constitutionally liable for every

inmate-on-inmate attack. Farmer v. Brennan, 511 U.S. 825, 832

(1994). However, the Eighth Amendment requires prison officials to

“take reasonable measures to guarantee the safety of the inmates.”

Id. Although inmate-on-inmate attacks are not per se suggestive of

a constitutional violation, inmates have a constitutional right to

be protected from “physical assault[s] by other inmates.” Zatler,

802 F.2d at 400. Prison officials may be liable under the Eighth

Amendment if they are deliberately indifferent to a known, serious

risk of harm to a specific inmate; mere negligence does not offend

constitutional principles. Farmer, 511 U.S. at 828, 838.

of his discretionary duties; however, Plaintiff does not directly

address this contention in his Response.

Thus, to establish an Eighth Amendment violation, an inmate

must show a prison official “actually (subjectively) knows that an

inmate is facing a substantial risk of serious harm, yet disregards

that known risk by failing to respond to it in an (objectively)

reasonable manner.” Rodriguez v. Sec’y for Dep’t of Corr., 508

F.3d 611, 617 (11th Cir. 2007) (citing Farmer, 511 U.S. at 837,

844). A prison official subjectively knows of a risk of harm to an

inmate when he “disregards an excessive risk to [the] inmate’s

health or safety.” Farmer, 511 U.S. at 837. “The known risk of

injury must be a ‘strong likelihood, rather than a mere

possibility’ before a guard’s failure to act can constitute

deliberate indifference.” Brown v. Hughes, 894 F. 2d 1533, 1537

(11th Cir. 1990). “Whether a prison official had the requisite

knowledge of a substantial risk is a question of fact subject to

demonstration in the usual ways, including inference from the

circumstantial evidence.” Rodriguez, 508 F.3d at 617 (emphasis in

original) (quoting Farmer, 511 U.S. at 843).

Furthermore, “an Eighth Amendment claimant

need not show that a prison official acted or

failed to act believing that harm actually

would befall an inmate; it is enough that the

official acted or failed to act despite his

knowledge of a substantial risk of serious

harm.” Thus, a jury need not infer that the

defendants intended that [the aggressor-

inmate] harm [the plaintiff] or that they

actually believed that [the aggressor-inmate]

would harm [the plaintiff]. It is enough that

a jury be able to infer from the evidence that

the defendants actually knew of a substantial

risk that [the aggressor-inmate] would

seriously harm [the plaintiff].

Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1102 (11th Cir.

2014) (internal citations omitted) (emphasis in original).

Generally, where a plaintiff presents evidence that he

reported to the defendants only a vague, generalized fear of harm,

summary judgment may be appropriate. See, e.g., Carter v. Galloway,

352 F.3d 1346, 1349 (11th Cir. 2003). For example, in Carter, the

court held the plaintiff presented no evidence “of a particularized

threat or fear” because he did not tell the defendants he feared

his cellmate or his cellmate had directly threatened him, and he

did not request protection. Id. at 1348, 1350. The plaintiff only

demonstrated prison officials knew his cellmate was a “problem

inmate,” had been roaming the cell like a “caged animal,” intended

to fake a hanging, and told the plaintiff he (the plaintiff) would

help fake the hanging “one way or another.” Id. at 1348. See also

Losey v. Thompson, 596 F. App’x 783, 789 (11th Cir. 2015) (holding

no Eighth Amendment violation because the plaintiff did not allege

a prior attack by the aggressor-inmate, and the plaintiff did not

state he notified any officer or the defendant that he was in

danger).

On the other hand, where a plaintiff presents evidence of a

particularized, well-founded fear, summary judgment is not

warranted. Rodriguez, 508 F.3d at 619; Caldwell, 748 F.3d at 1102.

In Rodriguez, the court vacated summary judgment in the defendant’s

favor because the parties disputed material facts: whether the

plaintiff informed the defendant he feared his life was in danger

and he needed protection or transfer. 508 F.3d at 619. In a

declaration, the plaintiff averred he orally reported the threat

to the defendant at least twice, and he submitted an inmate request

form stating he needed protection. Id. at 618-19. The defendant,

however, denied having had “security-related conversations” with

the plaintiff and having knowledge of the plaintiff’s grievance.

Id. at 619. See also Caldwell, 748 F.3d at 1101 (finding a jury

reasonably could infer the defendants had subjective knowledge of

a risk of harm where the plaintiff expressed he feared his cellmate

and the fear was “well-founded” because the cellmate set fire to

the cell earlier in the day).

ii. Plaintiff’s Reports of a Threat of Harm

To overcome Defendants’ assertion of qualified immunity,

Plaintiff must demonstrate at least a genuine issue of material

fact as to whether Defendants were deliberately indifferent to a

known risk of serious harm. “Because § 1983 ‘requires proof of an

affirmative causal connection between the official’s acts or

omissions and the alleged constitutional deprivation,’ each

defendant is entitled to an independent qualified-immunity

analysis as it relates to his or her actions and omissions.” Id.

(quoting Zatler, 802 F.2d at 401). As such, the Court will analyze

Plaintiff’s allegations against each Defendant.

As to Defendant Jorge, Plaintiff tells the following

narrative, which this Court must accept as true. On the morning of

group, Defendant Jorge was present on the wing in his role as

“administrative officer,” whose duties were to “be the security

and supervising staff for the counsellors, psychologists and

psychiatrists.” See Jorge Aff. at 2. Plaintiff’s cell on the mental

health wing was close to Henderson’s cell. Pl. Response at 15.

While in their cells, Henderson threatened Plaintiff and showed

Plaintiff a weapon he planned to use to carry out his threat. Id.

Out of fear, Plaintiff informed Defendant Jorge about Henderson’s

threat, whispering a warning to Jorge and holding up a sign saying

Henderson had a weapon. Id. at 15, 16. Plaintiff reported the

threat to Defendant Jorge believing Jorge knew about the first

incident between him and Henderson. The first incident was

described as “the talk of the mental health unit.” Pl. Response at

23.

Plaintiff hoped Defendant Jorge would discover Henderson’s

weapon and confiscate it so inmate Henderson could not carry out

his threat. See Pl. Interview Tr. at 5-6; Depo. Tr. at 8. After

Plaintiff was placed in the group room, he observed Defendant Jorge

pull Henderson from his cell. Defendant Jorge did not strip-search

Henderson, see Pl. Response at 16, and fastened Henderson’s

handcuffs loosely, allowing Henderson to easily slide his hands

out, id. at 27. When Henderson entered the group room, Plaintiff

saw Henderson pulling the weapon out of his pants. Plaintiff,

seeing that Defendant Jorge was not going to prevent the attack,

rushed Henderson, attempting to prevent Henderson from stabbing

him. Pl. Interview Tr. at 5; Depo. Tr. at 6, 8.

As to Defendant Rouse, Plaintiff explains the following:

Defendant Rouse escorted Plaintiff to the group room. See Pl.

Response at 16. There, Plaintiff informed Defendant Rouse that

Henderson had a weapon and would try to kill Plaintiff. Id.

Defendant Rouse laughed and told Plaintiff no one had a knife. Id.

Inmate Trimanye, in his affidavit, confirms Plaintiff reported a

threat of harm to Defendant Rouse; Trimanye avers the mental health

official who was present in the group room overheard Plaintiff

inform Rouse that Henderson had a weapon. Id. at 24. Plaintiff

also alleges Defendant Rouse was aware of the first incident

between him and Henderson because Rouse served and investigated

the disciplinary report against Henderson. Complaint at 6;

Response at 23.5

5 Defendant Rouse acknowledges his “primary function was to process

and serve inmate disciplinary reports,” though he does not recall

“any previous disciplinary reports referencing both Henderson and

[Plaintiff].” Rouse Aff. at 2. He also states in response to

Plaintiff’s interrogatories that he does not recall serving

Henderson a disciplinary report following the first incident.

Rouse Interr. Resp. ¶ 24. Defendants provide a copy of the incident

report for the first incident (Doc. 118-11), but they do not

Accepting Plaintiff’s allegations as true and construing all

reasonable inferences in his favor, Plaintiff describes a classic

Eighth Amendment violation. See Rodriguez, 508 F.3d at 619;

Caldwell, 748 F.3d at 1102. Plaintiff alleges he warned Defendants

Henderson had a weapon and planned to use the weapon to harm or

kill him during group. Plaintiff also alleges Defendants knew about

the first incident in which Henderson tried to attack Plaintiff.

Plaintiff’s allegations, if true, demonstrate Defendants “actually

knew of a substantial risk that [Henderson] would seriously harm

[Plaintiff].” See Caldwell, 748 F.3d at 1102.

The threat of harm Plaintiff reported to Defendants was not

vague or conclusory but specific, providing the who, what, when,

where, and how. See Rodriguez, 508 F.3d at 619; Caldwell, 748 F.3d

at 1102. See also Sears v. Roberts, 922 F.3d 1199, 1208 (11th Cir.

2019) (concluding the plaintiff’s allegations were not conclusory,

but described “specific, discrete facts of the who, what, when,

and where variety”) (quoting Feliciano v. City of Miami Bch., 707

F.3d 1244, 1253 (11th Cir. 2013)).

Plaintiff told Defendants of a “well-founded,” particularized

fear. He reported another inmate threatened his life (the “what”),

identified the source of the threat (the “who”), stated the threat

would occur in the group room that morning (the “where” and

provide a copy of the disciplinary report. Accordingly, whether

Defendant Rouse knew of the first incident is a factual dispute.

“when”), and identified the weapon that would be used (the “how”).

As such, this case is factually inapposite from the sole persuasive

authority on which Defendants rely. See Anderson v. Darden, No.

5:07-cv-208 (CAR), 2008 WL 4376824 (M.D. Ga. Sept. 25, 2008)

(granting summary judgment because the plaintiff instigated the

fight, there was no record of trouble between the two inmates, and

the plaintiff reported only a vague fear, saying he was afraid he

would be “jumped” by unnamed inmates).

Defendants ask the Court to discount the affidavits Plaintiff

offers, saying they constitute inadmissible hearsay. See Motion at

14. Defendants’ unexplained conclusion that the affidavits

constitute inadmissible hearsay is unpersuasive. A party opposing

summary judgment may rely upon affidavits or sworn pleadings if

made on personal knowledge and based on facts that may be reduced

to admissible evidence for trial. Fed. R. Civ. P. 56(c)(1), (4).

Defendants do not dispute the facts contained in Plaintiff’s

affidavits and the inmate-witness affidavits are based on personal

knowledge or can be reduced to admissible form for trial. See

Motion at 14. As such, Plaintiff’s affidavits and those of his

inmate-witnesses constitute evidence for purposes of opposing

summary judgment, and the Court must consider them.

Defendants also ask the Court to accept as a fact that

Plaintiff “instigated” the fight with Henderson and therefore

caused his own injury. See Motion at 15. They contend Plaintiff’s

evidence does not support his “claims, given that Plaintiff has

admitted to charging Inmate Henderson and initiating the fight.”

Id. at 14. They also rely on the Inspector General’s report, in

which the inspector noted the State Attorney’s Office labeled

Plaintiff the “instigator” of the fight. Id. at 13.

Significantly, Plaintiff denies having instigated the

stabbing incident. See Response at 53-55; Depo. Tr. at 9. He does

concede he rushed at Henderson, but he also explains did so because

he believed Defendants were not going to protect him even though

he told them Henderson was planning to bring a weapon to group.

See Depo. Tr. at 6. Plaintiff testified he charged at Henderson

“out of protection.” Id. at 8. See also Pl. Interview Tr. at 4, 5.

Moreover, the Court is not obliged to accept as a fact the

State Attorney’s Office’s conclusion, based on the inspector’s

report, that Plaintiff was the “instigator” of the altercation.

The purpose of the Inspector General’s investigation was to

determine whether Henderson committed a crime, not to resolve

whether Plaintiff’s constitutional rights were violated. See IG

Report at 9. And in his written report, upon which the State

Attorney’s Office based its conclusion, the inspector omitted

reference to Plaintiff’s explanation for rushing at Henderson and

that Plaintiff warned Defendants before the stabbing incident of

Henderson’s threat. See IG Report at 12, 17-18; Pl. Interview Tr.

at 5-6. In ruling Defendants’ Motion, this Court must accept

Plaintiff’s allegations as true, and Plaintiff avers he rushed

Henderson because he knew Henderson had a weapon, he watched

Defendant Jorge pull Henderson from his cell without conducting a

strip-search, and Henderson pulled the weapon from his waistband

as he entered the group room. These facts are material to

Plaintiff’s Eighth Amendment claim, and the Court may not overlook

them.

While Plaintiff admits he rushed Henderson, the evidence,

considered in totality and viewed in the light most favorable to

Plaintiff, does not demonstrate as a matter of law that Plaintiff

was the “instigator” or that he caused his own injury. On the

contrary, a reasonable jury could conclude instead that Henderson,

not Plaintiff, “instigated” the fight when, before group, he

brandished the weapon and threatened Plaintiff with it, and when

Henderson appeared intent on following through on that threat by

pulling the weapon from his waistband as he entered the group room.

A reasonable jury also could conclude Defendant Jorge did not

search Henderson and loosened Henderson’s cuffs knowing Henderson

planned to attack Plaintiff. As Plaintiff explains in his second

affidavit, “If Defendant Jorge would have searched Inmate

Henderson as he [claims to have done] then it would have been

impossible for Inmate Henderson to exit his cell possessing a knife

unless [D]efendant Jorge knowingly and willingly permitted

Henderson to exit his cell possessing a knife.” Pl. Response at

52.

To the extent Defendants suggest the Court should accept their

testimonies as more credible than Plaintiff’s allegations, it is

not the province of this Court to make credibility determinations

on a motion for summary judgment. See Furcron v. Mail Centers Plus,

LLC, 843 F.3d 1295, 1304 (11th Cir. 2016) (“[T]he Court may not

weigh conflicting evidence or make credibility determinations of

its own.”) (internal quotation marks omitted); Hall v. Bennett,

447 F. App’x 921, 924 (11th Cir. 2011) (reversing the district

court’s grant of summary judgment because the court improperly

“weighed the witnesses’ credibility by favoring” the officer’s

account over the prisoner-plaintiff’s).

Plaintiff satisfies his burden on qualified immunity. He

alleges facts that, if true, demonstrate an Eighth Amendment

violation, and the nature of the violation was clearly established

at the time of the stabbing incident. See, e.g., Caldwell, 748

F.3d at 1102 (“[T]his Court already clarified that a prison guard

violates a prisoner's Eighth Amendment right when that guard

actually (objectively and subjectively) knows that one prisoner

poses a substantial risk of serious harm to another, yet fails to

take any action to investigate, mitigate, or monitor that

substantial risk of serious harm.”). Accordingly, Defendants are

not entitled to qualified immunity on summary judgment.

C. Damages Available Under 42 U.S.C. § 1997e(e)

The Prison Litigation Reform Act (PLRA) requires a plaintiff

seeking damages to demonstrate the alleged constitutional

violation caused a physical injury. 42 U.S.C. § 1997e(e) (“No

Federal civil action may be brought by a prisoner confined in a

jail, prison, or other correctional facility, for mental or

emotional injury suffered while in custody without a prior showing

of physical injury.”).

The PLRA does not define “physical injury.” The Eleventh

Circuit has explained a physical injury is one that is not simply

de minimis, though it “need not be significant.” Dixon v. Toole,

225 F. App’x 797, 799 (11th Cir. 2007) (per curiam) (citing Harris

v. Garner, 190 F.3d 1279, 1286 (11th Cir. 1999)). Bruising and

scrapes fall into the category of de minimis injuries. Id. Accord

Mann v. McNeil, 360 F. App’x 31, 32 (11th Cir. 2010) (holding vague

back injuries and scrapes amounted to de minimis injuries).

It is difficult to fathom describing any stabbing as a de

minimis injury, even if the victim is lucky enough to have

survived. Here, Plaintiff sustained more than a vague injury or a

minor scrape. Henderson stabbed Plaintiff with a “rod” estimated

to be 7.8 cm in length. See Med. Records at 1. As shown in the

picture Defendants provide, the rod punctured Plaintiff’s skin and

was embedded in his neck/shoulder area. See Incident Report at 2.

Plaintiff avers the rod was embedded in his neck for three hours

before it was removed. See Response at 52. Prior to removing the

rod from his neck, the prison doctor ordered x-rays to ensure it

had not caused internal damage. See Med. Records at 1, 3.

Under Defendants’ own proffered definition of a “physical

injury,” Plaintiff’s injury is more than de minimis. According to

Defendants, “[a] physical injury is an observable or diagnosable

medical condition requiring treatment by a medical care

professional. It is not a sore muscle, an aching back, a scratch,

an abrasion, a bruise, etc.” Motion at 18 (quoting Luong v. Hatt,

979 F. Supp. 481, 486 (N.D. Tex. 1997)). Plaintiff received

immediate medical attention after being stabbed. See Med. Records

at 4-5. He suffered more than a sore muscle, a bruise, or a scratch.

Moreover, Plaintiff submitted multiple sick-call requests seeking

additional treatment in the months following the injury. See

Response at 41, 44, 45, 47, 48, 49, 50. Upon review of the evidence,

the Court is not convinced that simply because the rod was

successfully removed and the wound healed well, Plaintiff’s injury

constitutes a de minimis one.

As such, Defendants’ motion is due to be denied to the extent

they argue Plaintiff’s request for compensatory and punitive

damages is barred under the PLRA.

VI. Appointment of Counsel

This Court has broad discretion in determining whether the

appointment of counsel is appropriate. Under these circumstances

and at this point in the proceedings, the Court finds Plaintiff is

entitled to the assistance of a trained practitioner. Defendants

are represented by counsel and demand a jury trial, and there are

sufficiently complex factual and constitutional issues involved in

this litigation. Plaintiff will require assistance of counsel at

a settlement conference and, if the case does not settle, at

pretrial conference and trial. Therefore, the Court will refer

this case to the Jacksonville Division Civil Pro Bono Appointment

Program.

Accordingly, it is

ORDERED :

1. Defendants’ Motion for Summary Judgment (Doc. 102) is

GRANTED in part and DENIED in part. The Motion is GRANTED to the

extent Defendants are entitled to Eleventh Amendment immunity as

to any requests for damages against them in their official

capacities. In all other respects, the Motion is DENIED.

2, This case is referred to the Jacksonville Division Civil

Pro Bono Appointment Program so the designated deputy clerk of

the Court may seek counsel to represent Plaintiff.

DONE AND ORDERED at Jacksonville, Florida, this 15th day of

August, 2019.

4 Dee

=f J. DAVIS

United States District Judge

28

Jax-6

c:

Johnny Burgess

Counsel of Record