"[T]he question of whether [Defendant Mesa] should have employed additional diagnostic techniques or forms of treatment 'is a classic example of a matter for medical judgment' and therefore not an appropriate basis for grounding liability under the Eighth Amendment."
How later courts described this case
- "[T]he question of whether [Defendant Mesa] should have employed additional diagnostic techniques or forms of treatment 'is a classic example of a matter for medical judgment' and therefore not an appropriate basis for grounding liability under the Eighth Amendment."
- addressing a prison's opening of mail from attorneys outside the inmate's presence
- addressing grievances about the conditions of imprisonment
- "As we held in Daniels, the protections of the Due Process Clause, whether procedural or substantive, are just not triggered by lack of due care by prison officials."
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
GAYNETT POWELL,
Plaintiff,
v. Case No. 5:16-cv-303-Oc-34PRL
JEREMY A. HARRIS, et al.,
Defendants.
ORDER
I. Status
Plaintiff Gaynett Powell, an inmate of the Florida penal
system, initiated this action on March 18, 2016, pursuant to the
mailbox rule, by filing a pro se Civil Rights Complaint Form
(Complaint; Doc. 1). In the Complaint, Powell asserts claims
pursuant to 42 U.S.C. § 1983 against the following remaining
Defendants: (1) Jeremy A. Harris; (2) Ernest L. Reed; (3) Carol
Casimir; (4) Gail Anderson; (5) Warden Jennifer Folsom; (6) Tommie
Young; (7) Faleshia A. Williams; (8) Jhon Deo (John Doe); (9) L.
Braggs; and (10) Dr. Virginia Mesa, M.D., Chief Health Officer
(CHO).1 Powell asserts that the Defendants retaliated against him
in 2012 and 2013 when they placed him in administrative confinement
(AC), filed a disciplinary report (DR), used an invalid DR as a
basis to place him in disciplinary confinement (DC) and close
1 The Court dismissed Powell's claims against Defendants
Maldano, Furto, Campbell, Robert, Torso, and Walker. See Orders
(Docs. 153, 179).
management (CM), transferred him to other facilities, confiscated
his property, and denied him adequate medical treatment. See
Complaint at 14-15. As relief, he seeks compensatory and punitive
damages as well as declaratory and injunctive relief.
This matter is before the Court on Defendants Harris, Braggs,
Casimir, Reed, Folsom, Williams, Young, and Anderson's Motion for
Summary Judgment (Motion; Doc. 171) and Defendant Mesa's Motion for
Summary Judgment (Mesa Motion; Doc. 196). They submitted exhibits
in support of their summary judgment requests. See Def. Exs. (Docs.
171-1 through 171-2; 196-1 through 196-2).2 The Court advised
Powell of the provisions of Federal Rule of Civil Procedure 56,
notified him that the granting of a motion to dismiss or a motion
for summary judgment would represent a final adjudication of this
case which may foreclose subsequent litigation on the matter, and
gave him an opportunity to respond to the Motions. See Order (Doc.
17); Summary Judgment Notices (Docs. 172, 197). Powell responded.
See Responses (Docs. 190, 209); Affidavits (P. Aff.; Docs. 191,
207). Defendants' Motions are ripe for review.
II. Plaintiff's Allegations
In his Complaint, Powell asserts that the events leading up to
Defendants' retaliatory conduct began in March 2012 at Lake
Correctional Institution (LCI). See Complaint at 8. He states that
2 The Court cites to the document and page numbers as assigned
by the Court's Electronic Case Filing System.
2
there was an anonymous tip that inmates were planning an escape.
See id. According to Powell, Defendant Reed placed several inmates
in AC pending an investigation, and wrote a DR against one of the
inmates for possession of escape paraphernalia that included a lock
belonging to Powell. See id. Powell avers that the accused inmate
listed Powell as a witness. See id. He states that he "executed" a
statement on March 21, 2012, and admitted that he owned the lock.
Id. at 8-9. He asserts that Defendant Reed directed corrections
officers to place Powell in AC. See id. at 9.
Next, Powell states that an inmate was stabbed in the
recreation yard. See id. According to Powell, Defendant Reed
obtained the inmate victim's statement, accusing Powell and two
other inmates of the assault. See id. He avers that the inmate
victim "declared" that Reed and other officers "coerced" him to
identify Powell as one of the attackers. See id. He asserts that
the inmate victim later recanted his accusations against Powell and
another accused inmate. See id. According to Powell, Reed
nevertheless relied on the inmate victim's "initial statement," and
issued DRs for battery against Powell and the other accused
inmates. See id. He states that Officer Campbell delivered the DR
to him on March 23rd,3 see id. at 9, and made comments, such as "we
got the other inmates' statements and the accuser's two statements,
3 Powell states that the event occurred on March 23, 2016. See
Complaint at 9. However, given Powell's other assertions, it is
apparent that he intended to identify 2012 as the correct year.
3
[and] we already decided what we are going to do with you good buy
[sic][,]" and "yes, for that statement you did." Id. at 10.
Powell maintains that Defendants Williams and Braggs
"acquitted" the other accused inmate on March 27, 2012, based on
their findings that the accuser had recanted his statement and that
no officer had witnessed the stabbing. See id. He complains that
Williams and Braggs "exclusively relied" on the accuser's initial
statement, instead of his recantation, and found Powell guilty of
the DR on March 29, 2012. Id. According to Powell, when he objected
to the guilty finding, Williams stated that "the people uptop want
us to find you guilty[;] you w[ere] advised against making that
statement for your friend." Id. He avers that he complained about
Defendants' conduct to the Regional Director and Governor in April
2012. See id.
Additionally, Powell asserts that Defendant Anderson knew
about the inmate accuser's recantation, but still used Powell's DR
as the basis for referring Powell to CM confinement on April 4,
2012. See id. at 10-11. He states that Defendants Harris and Young
(members of the Institutional Classification Team (ICT)) knew about
the accuser's recantation, the acquittal of the other accused
inmate, and the ongoing retaliatory acts, but nevertheless
recommended that Powell be placed on CM on April 12th. See id. at
11. He avers that Defendant Casimir, a state classification
officer, returned without action the complaint Powell had submitted
4
to the Regional Director on April 13th, finding that the
institution should address the issue. See id. According to Powell,
Casimir approved both the referral and recommendation for Powell's
CM confinement on April 18th. See id. He maintains that Defendant
Young denied Powell's grievances relating the DR and CM issues on
April 26th. See id. Notably, Powell contends that Secretary
Representative Solano approved Powell's appeal and overturned the
DR on June 7th. See id. Powell avers that Dr. Walker discontinued
his antidepressant medication when his DR was overturned, stating
Powell no longer needed the medication. See id.
According to Powell, the Governor's Office and the Office of
the Florida Department of Corrections (FDOC) Secretary directed
the FDOC to release Powell to open population and remove his DR and
CM designation from its records. See id. at 11-12. He states that
the Defendants however "used the void DR" as the basis to transfer
him to an institution where their former colonel is the Warden.
Id. at 12. He avers that the Warden directed his subordinates to
file similar reports and transferred him back to LCI. See id.
Powell maintains that Lieutenant Martinez placed him in AC at the
Reception Center and permitted inmates to steal his property. See
id. He declares that he was "reclassified" and transferred to
another institution that filed "similar reports" and used those
reports to involuntarily commit him to mental health hospitals when
he refused to stop submitting complaints and grievances. Id.
5
Powell states that he "declared" a hunger strike, lost
consciousness, and was transferred to LCI's mental health hospital
in 2013. Id. He alleges that Defendant Folsom seized his property
when he exited the transportation van, and never returned it. See
id. According to Powell, Folsom advised him that they would "secure
and return" the grievances and complaints Powell had filed against
them. Id. He also avers that Folsom told Defendant Mesa that Powell
"is back." Id. Powell maintains that he told Mesa about his hunger-
strike symptoms (thirty-five-pound weight loss, exhaustion, high
blood pressure, and bloody urine). See id. at 13. He asserts that
Mesa denied him medical treatment, stating "if you stop writing
grievances and complaints things will get better for you." Id. He
states that Officer Maldano approached his cell, stating:
So you are back? They said you lost a lot of
weight[] but do not change, still complaining,
doing statements and writing grievances.
Colonel said you are still on the sh[-]t list.
You got away easy the last time. This time I'm
gong to whip you're [sic] a[–-].
Id. Powell avers that he moved to another unit and filed a
grievance against Mesa for the denial of medical treatment. See id.
He maintains that Officer Maldano, who was reassigned to Powell's
unit, advised Powell as follows:
Hey a[--]hole[,] you thought you escaped
again? But we always fix it so we could catch
up with you. Dr. Mesa is one of us. I'm going
to f[--]k you're [sic] a[--] up.
Id.
6
According to Powell, Sergeant Furto, Officer Maldano, and John
Doe gave Powell a breakfast tray with missing food portions on
February 9, 2013. See id. He states that when he showed them the
tray and asked for more food, Maldano grabbed the tray, stating
"you don't eat." Id. He avers that he and Maldano "grappled" for
the tray, and as a result, Maldano "flipped and released the tray
inside the cell" which spilled the food on the walls, door, and
floor. Id. Powell maintains that when he put his palm on top of the
food flap and asked to speak with the lieutenant, Maldano "punched"
Powell's right palm numerous times. Id. at 14. He asserts that
Defendant Mesa failed to provide "meaningful treatment" for his
injuries. See id. Powell declares that he reported the mistreatment
to Lieutenant Robert who placed him on property restriction and
special management meals and denied him access to the day room,
canteen, and recreational activities. See id. Powell also asserts
that when he grieved the restrictions, he was transferred to a non-
medical institution, and later to a medical facility. See id. He
states that the FDOC promoted Defendant Harris to an Assistant
Warden position, and transferred him to the medical institution
where Harris encouraged the medical staff not to treat Powell. See
id.
7
III. Summary Judgment Standard
Under Rule 56 of the Federal Rules of Civil Procedure
(Rules(s)), "[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). 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." Fed. R. Civ. P.
56(c)(1)(A).4 An issue is genuine when the evidence is such that a
reasonable jury could return a verdict in favor of the non-moving
party. 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
4 Rule 56 was revised in 2010 "to improve the procedures for
presenting and deciding summary-judgment motions." Rule 56 advisory
committee's note 2010 Amends.
The standard for granting summary judgment
remains unchanged. The language of subdivision
(a) continues to require that there be no
genuine dispute as to any material fact and
that the movant be entitled to judgment as a
matter of law. The amendments will not affect
continuing development of the decisional law
construing and applying these phrases.
Id. "[A]lthough the interpretations in the advisory committee['s]
notes are not binding, they are highly persuasive." Campbell v.
Shinseki, 546 F. App'x 874, 879 n.3 (11th Cir. 2013). Thus, case
law construing the former Rule 56 standard of review remains
viable.
8
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). "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)).
9
IV. Rulings on Defendants' Motions to Dismiss
The Court previously partially granted Defendants Braggs,
Harris, and Casimir's motions to dismiss (Docs. 65, 66) and
Defendants Folsom, Reed, Williams, Anderson, and Young's motion to
dismiss (Doc. 94) as to Powell's (1) claims for monetary damages
from them in their official capacities, see Orders (Docs. 111, 125)
at 7-8; (2) Eighth Amendment claims, see Doc. 111 at 8; Doc. 125 at
9-11; and (3) Fifth and Fourteenth Amendment claims, see Doc. 111
at 8-10; Doc. 125 at 11-12. Additionally, the Court sua sponte
dismissed Powell's requests for compensatory and punitive damages,
see Doc. 111 at 5-6; Doc. 125 at 6-7, and his equal protection
claims, see Doc. 111 at 6-7; Doc. 125 at 7. However, the Court
denied the motions to dismiss as to Powell's First Amendment
retaliation claims against the Defendants. See Doc. 111 at 10-14;
Doc. 125 at 12-14.
V. Summary of the Arguments
In the Motion, Defendants Harris, Braggs, Casimir, Reed,
Folsom, Williams, Young, and Anderson assert that there are no
genuine issues of material fact, and therefore, the Court should
grant summary judgment in their favor. They assert that some of
Powell's First Amendment retaliation claims are barred by the four-
year statute of limitations. See Motion at 13-14. Additionally,
they maintain that they are entitled to qualified immunity. See id.
at 20. In his Response, Powell relies on his affidavit (Doc. 191)
10
and deposition (P. Depo.; Docs. 171-2, 196-2) and asserts that
there are genuine issues of material fact that preclude summary
judgment in Defendants' favor. See Response (Doc. 190).
Defendant Mesa asserts that the Court should grant summary
judgment in her favor as to Powell's Eighth Amendment claim, see
Mesa Motion at 6-9, First Amendment retaliation claim, see id. at
9-11, and Fourteenth Amendment claim, see id. at 11-13. She also
maintains that she is entitled to qualified immunity. See id. at
13-14. Additionally, she asserts that Powell's request for
injunctive relief is moot, and he is not entitled to compensatory
and punitive damages under 42 U.S.C. § 1997e(e) because he has not
alleged any physical injuries resulting from Defendants' acts
and/or omissions. See id. at 14-15. Relying on his affidavit (Doc.
207) and deposition, Powell asserts that there are genuine issues
of material fact that preclude summary judgment in Defendant Mesa's
favor. See Response (Doc. 209).
VI. Analysis5
A. Defendants' Motion for Summary Judgment (Doc. 171)
1. Four-Year Statute of Limitations
Defendants assert that some of Powell's claims are barred by
the four-year statute of limitations. See Motion at 13-14. In his
5 For purposes of summary judgment, the Court views the
evidence and all reasonable inferences therefrom in the light most
favorable to Plaintiff. Thus, the facts described in the Court's
analysis may differ from those that ultimately can be proved.
11
Response, Powell states that the Defendants "are absolutely right"
about the applicability of the four-year statute of limitations.
Response (Doc. 190) at 19. Nevertheless, he maintains that the
Defendants "misapplied" it. Id. He asserts, and this Court agrees,
that he filed the Complaint on March 18, 2016, pursuant to the
mailbox rule,6 not April 25, 2016, as Defendants assert. See id. In
the Complaint, Powell alleges that Defendants' retaliatory acts
began on March 21, 2012. See Complaint at 8. A 42 U.S.C. § 1983
action brought in Florida is governed by Florida's four-year
personal injury statute of limitations. Henyard v. Sec'y, Dep't of
Corr., 543 F.3d 644, 647 (11th Cir. 2008). Therefore, Powell had
until March 21, 2016, to file his claims against the Defendants. As
such, his claims are timely filed.
2. First Amendment Retaliation7
Defendants Harris, Braggs, Casimir, Reed, Folsom, Williams,
Young, and Anderson assert that they are entitled to summary
judgment as to Powell's First Amendment retaliation claims against
them. See Motion at 14-20. They maintain that, as to the third
element, Powell "cannot show a causal connection between
Defendants['] conduct and his protected speech." See id. at 15
(citations omitted). In his Response, Powell argues that there are
6 See Complaint at 1 (showing Suwannee Correctional
Institution's March 18, 2016 date stamp).
7 The Court will address Powell's claims against Defendant
Mesa in a separate section of this Order.
12
genuine issues of material fact that preclude summary judgment in
Defendants' favor. See Response (Doc. 190).
The chronology of events on which Powell bases his retaliation
claims is as follows. On March 5, 2012, there was an anonymous tip
that inmates were planning an escape. See Complaint at 8; Def. Ex.,
Doc. 171-1 at 15, MINS8 Incident Report. Defendant Reed placed
three inmates (whom Powell describes as his cell mate, countryman,
and friend) in AC pending an investigation. See Complaint at 8;
Powell Aff. (Doc. 191) at 1. Deeann Hensley described what
transpired that day.
On 3/5/12, at approximately 300 PM., Captain
Faleshia Williams received an anonymous note
alleging that inmates in E dorm were planning
an escape with the assistance of a security
staff member. Inmates named were strip
searched and their property [was] searched.
During the search of inmate property, Officer
Ryan Reedyk located 3 sheets, 2 pieces of
sheet, 2 pillow cases and 2 locks tied
together in a bundle under the heater vent in
cell E4104L. Inmate Graham received a DR for
escape paraph[erna]lia. Inmates Pack, Gray,
and Dudley were placed in AC pending
investigation. All inmates denied the
allegation and provided written statements.
Def. Ex., Doc. 171-1 at 15. Powell states that his friend Graham
"listed" him as a witness because one of the locks belonged to
Powell. Complaint at 8; Powell Aff. at 1.
8 MINS is an acronym for Management Information System
Network.
13
On March 21, 2012, Defendant Reed summoned Powell to the
dormitory, see Complaint at 8, "warned" Powell about executing a
statement for his friend, id. at 9, and commented "we don't play
that sh-t[.]" Powell Aff. at 1. Powell completed the statement
(admitting that he owned one of the locks), and gave it to Sergeant
Broadway. See Complaint at 9; Powell Aff. at 2. That same day,
there was an inmate stabbing on the recreation yard, see Complaint
at 9, and Officer McCrary advised Defendant Reed about the
incident, see Def. Ex., Doc. 171-1 at 19.
On 3/21/12 at approximately 130 pm[,] I ofc
McCrary received a transmission from of.
Duncan.... At approx. 138 pm I/M Dieudonne,
Timmis # A-W11268 and Johnson, Justin # A-
R21488 arrived. I/M Johnson stated, "This I/M
just walked in medical, stating he just got
into a fight." I just escorted him here.
Later, I talked with I/M Dieudonne and he
stated to me, "When the yard opened, 3 guys
had jumped me, all 3 had knives, and no
officer was present on the compound.["]
Def. Ex., Doc. 171-1 at 19. Defendant Reed prepared an Incident
Report, stating in pertinent part:
On March 21, 2012, at approximately 2:00 pm[,]
I was advised by Medical Officer CO Larhonda
McCrary that inmate Dieudonne, Timmis DC
#W11268, had been assaulted with a weapon on
the recreation field. The Institution was
immediately placed on Level B Status. All
additional staff from outside grounds and in
service training were utilized to provide
security and assist with searches. All inmates
on the recreational field (400) were staged,
searched, and escorted to their housing units
along with all inmates in the program areas.
Assistant Warden, A. Price and Major V. Barber
were immediately notified of the incident and
14
actions taken. The Emergency Management site
was initiated by Sgt. S. Jackson in the main
control room summarizing the course of events.
I conducted an initial interview of Inmate
Dieudonne who stated that inmates McKinney,
Desmond, DC #L40919, assaulted him. Inmate
McKinney was apprehended and restrained
without incident. Inmates Powell, Gaynett, DC
#L07899, and Head, Jamal, DC #M45505, were
also placed in Administrative Confinement
pending Investigation for being involved in
the assault. Inmate Johnson, Justin, DC
#R21488 was also placed in Administrative
Confinement pending Investigation after he
walked inmate Dieudonne to Medical, as a
potential participant/witness. Inmate
Dieudonne was placed in Administrative
Confinement pending Protective Management
review. Two (2) homemade weapons were
discovered on the Recreation field, although
neither appear to be the weapon used in the
assault. The weapons were photographed and
placed in the evidence locker.
Def. Ex., Doc. 171-1 at 17-18. Defendants Harris and Folsom
reviewed the report, and Defendant Folsom stated that "[a]ll
inmates involved were placed in confinement pending charges and
transfer." Id. at 17. Defendant Reed directed officers to place
Powell in AC "[s]hortly" after Powell had executed his statement
for inmate Graham. See Powell Aff. at 2; Def. Ex., Doc. 171-1 at 7
(showing that Powell was assigned to AC on March 21, 2012).
Defendant Reed obtained Dieudonne's statement that accused Powell
and inmates McKinney and Head in the stabbing incident. See Def.
Ex., Doc. 171-1 at 22-23. Dieudonne stated that Powell stabbed him
in his "left top shoulder." Id. at 23.
15
As a result of Dieudonne's accusation, Defendant Reed issued
a DR against Powell for aggravated battery or attempted aggravated
battery on an inmate. See Complaint at 9; Def. Ex., Doc. 171-1 at
27. The facts supporting the DR are as follows:
Inmate Powell, Gaynett DC #L07899 is being
charged with 1-10 aggravated battery or
attempted aggravated battery on an inmate. On
March 21, 2012 at approximately 2:00 PM while
assigned as third shift supervisor, I was
notified of an aggravated battery which ha[d]
occurred on the recreation yard. Inmate
Dieudonne, Timmis DC #W11268, had been cut
several times in his upper torso, facial, and
arms area. Upon interviewing inmate Dieudonne,
he advised me that inmate McKinney, Desmond DC
#L40919, Inmate Head, Jamal DC #M54505, and
Inmate Powell, Gaynett DC #L07899 were his
attackers. Inmate Dieudonne also states "all
three of them were stabbing me from different
angles."[9] A subsequent search of the
recreation field was conducted and inmate
Powell was located in E-dormitory. Inmate
Powell was interviewed and stated that he was
not on the recreation field. He was in E-
dormitory when the incident occurred. This is
untrue. I had the control room page inmate
Powell numerous times to report to E-dormitory
to submit a witness statement on an unrelated
incident. I was in E-dormitory when the pages
were made and inmate Powell was not in the
dormitory. As I departed E-dormitory to deal
with this incident, inmate Powell walked by me
and entered E-dormitory. At the time that we
passed each other, I was unaware that he was
possibly involved in this attack. Inmate
Powell is being housed in administrative
confinement pen[d]ing the disposition of this
report.
9 See Def. Ex., Doc. 171-1 at 22, Dieudonne's Statement, dated
March 21, 2012.
16
Def. Ex., Doc. 171-1 at 27 (emphasis added). An investigation was
conducted from March 21st until March 25th. See id. at 28. During
the investigation, Dieudonne made a second statement, dated March
25, 2012, asserting that Powell had "nothing to do" with the
stabbing incident. Id. at 30.
I'm not writ[]ing this witness statement out
of any kind of fear nor was I force[d] [in]
any kind of way. On March 21[][,] 2012
We[d]n[e]sday I got stab[b]ed on the rec yard
by only one inmate[.] But being that I was
very mad at the time I wrote a witness
statement saying three people w[ere]
invol[v]ed with the stab[b]ing. Cause I was
just going with wh[at]ever question I was
being ask[ed] at the time being that I was
mad. But at the time of the stab[b]ing Inmate
Gaynett Powell DC #L07899 was not on the rec
yard nor was he invol[v]ed in it. The only
reason I wrote his name in the first statement
was because I thought he sent the person at me
who stab[bed] me being that I owed him money
an[d] we w[ere] mad at each other. So when the
police ask[ed] me was he invol[v]ed I said yes
but he really wasn't. I was just mad at all
the people I done had problems with in the
past. But no[,] inmate Powell DC #L07899 did
not have nothing to do with [the] stab[b]ing
on [the] rec yard nor was he [sic] present at
the time cause he was in [the] dorm when I got
stab[b]ed. I know who stab[b]ed me an[d] it
was not Powell who did it. The person who did
it they found his shirt on the rec yard with
my blood on it an[d] his name [was] rip[ped]
off of his shirt. But I'm writ[]ing this
statement cause I have to free the innocent.
This is the truth. I swear inmate Gaynett
Powell DC #L07899 had nothing to do with me
getting stab[bed].
Id. (emphasis added). Officer Campbell notified Powell of the DR
charge on March 25th. See id.
17
On March 29, 2012, Defendant Braggs (the DR team chairman) and
Williams (a DR team member) found Powell guilty of the aggravated
battery infraction based on Defendant Reed's written statement of
the facts. See id. at 28-29. Defendant Braggs submitted an
Affidavit, describing her involvement in the disciplinary process.
Id. at 57-58, Affidavit of Lourdes Braggs (Braggs Aff.). She
stated, in pertinent part:
I was involved with inmate Powell's
disciplinary hearing where he was found guilty
of aggravated assault. The disciplinary
hearing process allows the inmate to present
evidence and witness statements. We review the
documentation, statements and determine the
involvement or guilt of the inmate. I
understand that the victim inmate recanted his
testimony about inmate Powell's involvement.
This is not unusual and we see this happen
frequently in areas of inmate assault. It is a
consideration in the process but just because
the victim inmate recants, this does not mean
the case is automatically dismissed. Often,
the victim inmate recants later on because he
fears retaliation. We would look at inmate
Powell's history of violence and disciplinary
history to assist in determining credibility.
It is important to consider the safety and
security of everyone and also the nature and
severity of the charge. If inmate Powell was
violent and caught lying at the hearing, it
could affect his credibility and the outcome
of the hearing.
Id. at 58. Defendant Williams submitted a similar account. See id.
at 59-60, Declaration of Feleshia Williams (Williams Decl.). She
explained her role, stating in pertinent part:
I was the Captain at Lake Correctional
Institution in March 2012. I was one of the
Disciplinary Hearing members for the stabbing
18
incident involving inmate Gaynett Powell,
L07899. Inmate Powell was found [g]uilty by
the disciplinary team for the aggravated
assault of another inmate. The victim inmate
did recant his testimony that inmate Powell
was involved. We see this often. It is almost
always true the initial statement made in such
a case is the true one. Once the victim inmate
gets away from the incident, they often are
threatened or have second thoughts about
naming another inmate for fear of retaliation
or just being labeled a snitch. The
disciplinary hearing team would also look at
inmate Powell's record and history.
As to his claim I said anything about
what "people up top" want, this is untrue. The
decision to find inmate Powell guilty is a
decision of the disciplinary review team after
hearing and receiving testimony and evidence.
Inmate Powell was present at the hearing. No
one person makes the decision and the decision
has to be approved by the warden.
Id. at 60. Defendant Young, as Assistant Warden of Programs,
responded to Powell's grievance on April 28, 2012, stating in
pertinent part:
It is the responsibility of the disciplinary
team to weigh the facts, review all the
statements and determine the credibility of
any witness. In this case, the team accepted
the reported officer's statement as credible
and a decision was rendered to uphold the
requirements set forth in Chapter 33-601-602.
Id. at 40. Young reviewed and approved the disciplinary team's
decision on May 2, 2012. See id. at 29.
On April 4, 2012, Defendant Anderson "referred" Powell for CM
assignment. See Complaint at 10; Def. Ex., Doc. 171-1 at 35, CM
19
Report; 61-62, Declaration of Gail Anderson (Anderson Decl.).
Anderson explained the basis for the CMI referral.
Inmate being recommended for CM1 based on the
events in his DR for 1-10 aggravated battery
or attempted aggravated battery on an inmate.
On March 21, 2012 shift supervisor was
notified of an aggravated battery which
occurred on the recreation yard. An inmate had
been cut several times in upper torso, facial
and arm area. Inmate Powell was identified as
one of the attackers. During last six months,
inmate had one other DR for 2-4 fighting.[10]
He has no BLEO [(battery on a law enforcement
officer)] convictions on staff at this time.
Def. Ex., Doc. 171-1 at 35. In her declaration, Anderson states, in
pertinent part:
I was a Corrections Probation Officer at Lake
Correctional Institution in 2012. I was
involved with inmate case management and
disciplinary hearings. I would make
recommendations for close management
designations for inmates who qualify for such
classification. As [I] recall, Ms. Braggs was
involved with inmate Powell's disciplinary
hearing, so I was the one who recommended him
for close management. As with inmate Powell,
he was involved in an assault of another
inmate, which qualifies him for close
management. I only made the recommendation for
close management and have nothing to do with
the actual determination. This is done by the
institution classification team.
Anderson Decl. at 62.
On April 5, 2012, Defendant Braggs notified Powell that the
ICT would review the CM recommendation. See id. at 35. In her
10 See Def. Ex., Doc. 171-1 at 4, Inmate Disciplinary Actions
for Gaynett Powell (showing a September 4, 2011 infraction for
fighting).
20
affidavit, Braggs stated that she was neither an ICT member nor
"involved in the process, hearing or approvals for close management
determination or transfer of Inmate Powell." Braggs Aff. at 58. The
ICT (Defendants Young and Harris and Officer Tosi) convened on
April 12th. See Complaint at 11; Def. Ex., Doc. 171-1 at 35.
Defendant Young submitted a declaration, see Def. Ex., Doc. 171-1
at 66-67, Declaration of Tommie Young, Jr. (Young Decl.), stating
in pertinent part:
I was the Chairperson of the Institution
Classification Team (ICT) that recommended
inmate Gaynett Powell, DC #L07899, be
designated for close management (Close
Management I). At the time the ICT convened,
inmate Powell was found guilty of aggravated
assault of another inmate. This qualifies him
for close management and upon review of the
documents and conduct of hearing with inmate
Powell present, the ICT recommended close
management. This recommendation would be sent
to the state classification officer for final
decision.
Id. at 67. Defendant Harris also submitted a declaration, see id.
at 63-65, Declaration of Jeremy Harris (Harris Decl.), stating in
pertinent part:
I was the Colonel at Lake Correctional
Institution in 2012 and assigned to the
Institutional Classification Team ("ICT").
When an inmate is referred for close
management, ICT will review the case and make
a recommendation to the State Classification
Officer. I was one of the members at the ICT
hearing for inmate Gaynett Powell, DC #L07899.
I was not involved with inmate Powell's
disciplinary hearing process. Inmate Powell
was recommended for close management by a
classification officer. Once such
21
recommendation is made, the inmate is given a
copy of the recommendation[,] and the ICT will
then set a review hearing with the inmate.
When inmate Powell's ICT met, he had been
found guilty of aggravated battery or
attempted aggravated battery on an inmate. I
understand the victim inmate recanted his
testimony that inmate Powell was involved in
his stabbing but the disciplinary review
hearing [team] found him guilty[,] and he was
presently in disciplinary confinement. It is
not unusual for a victim inmate to recant his
testimony. This is especially true when the
assault involves a dangerous and violent
inmate like Powell. The ICT will review all of
Powell's documents and based on the entirety
of his record, Powell demonstrated an
inability to reside in general population
without presenting a risk of violence to other
inmates. The ICT recommended close management
(Close Management I) for inmate Powell and
this was sent to [the] State Classification
Office for review and final determination. The
mere fact that a disciplinary report is, or is
not, written on [an] inmate is not a criterion
for close management. But at the time of his
ICT recommendation, he had been found guilty
of aggravated assault.
Id. at 64. On April 18, 2012, Defendant Casimir approved Powell's
CMI designation. See Complaint at 11; Def. Ex., Doc. 171-1 at 36.
Casimir submitted an affidavit, see Def. Ex., Doc. 171-1 at 68-70,
Affidavit of Carol Casimir (Casimir Aff.), attesting in pertinent
part:
As a Correctional Services Administrator for
Southern Florida Region of Institutions in
2012, I am authorized to perform functions as
the State Classification Officer (SCO) for
Lake Correctional Institution (Lake C.I.). The
State Classification Officer oversees several
correctional institutions and issues final
orders involving inmate classification and
22
transfer. The decisions I made involving
Inmate Gaynett Powell were all based on
recommendations from the correctional
institution. I am not involved at the
correctional institution level[.] I do not
participate in the disciplinary or institution
classification team hearing process. When I
make decisions as the SCO, it is based on
recommendations from the correctional
institution. I do not start the process but
oversee it and would issue approvals or
denials. Thus, I rely on the work,
investigations and hearings held at the
correctional institution. If the inmate meets
the criteria as recommended and expressed by
the ICT[,] then he will normally be approved
at that level. The same is true for transfers.
The ICT makes the recommendation to transfer
an inmate and I would approve or dis[ap]prove
the transfer.
Inmate Gaynett Powell was referred for close
management (CMI) designation by the Lake C.I.
Institutional Classification Team (ICT). Based
on the recommendation of the ICT and the basis
they provided, I approved CMI status for
Gaynett Powell. The ICT recommendation noted
Inmate Powell demonstrates an inability to
reside in general population, was connected
with the aggravated assault of another inmate
and remained in disciplinary confinement....
Id. at 69.
On June 7, 2012, Secretary Representative M. Solano approved
Powell's grievance appeal and overturned the DR, see Complaint at
11, stating in pertinent part:
Your request for administrative review has
been received and evaluated. The disciplinary
report you received on (03/21/12); for
violation (1-10); (Aggravated
Battery/Attempted/Inmate), has been
overturned. Our decision to overturn the
disciplinary report was based on technical
errors made in the processing of same. The
23
institution has been advised of this decision
and any necessary adjustments will be made to
your inmate file.
Def. Ex., Doc. 171-1 at 41. That same day, in response to another
grievance, Solano explained the effect on Powell's CM designation.
Your placement in close management has been
through your own behavior. Your record reveals
that you have demonstrated the inability to
live in the general population without abusing
the rights and privileges of other inmates or
disturbing the security, order or operation of
the institution.
Although the Disciplinary Report was
overturn[ed] the institution may or may not
review your Close Management recommendation.
Id. at 42.
"The First Amendment forbids prison officials from retaliating
against prisoners for exercising the right of free speech." Farrow
v. West, 320 F.3d 1235, 1248 (11th Cir. 2003). "It is an
established principle of constitutional law that an inmate is
considered to be exercising his First Amendment right of freedom of
speech when he complains to the prison's administrators about the
conditions of his confinement." Smith v. Mosley, 532 F.3d 1270,
1276 (11th Cir. 2008) (citing Farrow, 320 F.3d at 1248). An inmate
may maintain a cause of action for retaliation under 42 U.S.C. §
1983 by showing that a prison official's actions were "the result
of [the prisoner] having filed a grievance concerning the
conditions of his imprisonment." Farrow, 320 F.3d at 1248
(quotation marks omitted).
24
As relevant to this action, the Eleventh Circuit set forth the
standard applicable to a First Amendment retaliation case.
To prove First Amendment retaliation, an
inmate must show that: (1) his speech or act
was constitutionally protected, (2) he
suffered an adverse action from prison
officials that would deter a person of
ordinary firmness from engaging in the speech
or act, and (3) the protected speech or act
and adverse action were causally connected.
Smith v. Mosley, 532 F.3d 1270, 1276 (11th
Cir. 2008); see Moton v. Cowart, 631 F.3d
1337, 1342 (11th Cir. 2011) ("An inmate must
establish ... 'his speech or act was
constitutionally protected....'"). We've
routinely held that a prisoner's complaints
about prison conditions, via administrative
grievances, lawsuits, and the like are
protected under the First Amendment. Smith,
532 F.3d at 1276 (addressing grievances about
the conditions of imprisonment); Al–Amin v.
Smith, 511 F.3d 1317, 1333–34 (11th Cir. 2008)
(addressing a prison's opening of mail from
attorneys outside the inmate's presence).
Hollins v. Samuals, 540 F. App'x 937, 938-39 (11th Cir. 2013) (per
curiam); Ziegler v. Martin Cty. Sch. Dist., 831 F.3d 1309, 1328
(11th Cir. 2016).
Notably, there must be a causal relationship between the
retaliatory action and the protected speech. For a sufficient
causal connection, "the prisoner must show that, as a subjective
matter, a motivation for the defendant's adverse action was the
prisoner's grievance or lawsuit." Jemison v. Wise, 386 F. App'x
961, 965 (11th Cir. 2010) (citing Smith v. Mosley, 532 F.3d 1270,
1278 (11th Cir. 2008)). "Once the plaintiff establishes that the
protected conduct was a motivating factor behind the harm, the
25
burden of production shifts to the defendant. . . . The defendant
can prevail on summary judgment if it can show it would have taken
the same action in the absence of the protected activity." Smith v.
Fla. Dep't of Corr., 713 F.3d 1059, 1063 (11th Cir. 2013) (citing
Mosley, 532 F.3d at 1278).
The Eleventh Circuit has addressed an inmate's claim for
retaliation against prison officials in the disciplinary context.
If a prisoner is found guilty of an actual
disciplinary infraction after being afforded
due process and there was evidence to support
the disciplinary panel's fact finding,[11] the
prisoner cannot later state a retaliation
claim against the prison employee who reported
the infraction in a disciplinary report.
Whether an inmate actually committed the
charged infraction or whether the disciplinary
report falsely accuses the inmate are
questions of fact that are decided by the
disciplinary panel. In the particular
circumstances here, [the plaintiff] has
suffered adverse action (here 30 days'
disciplinary confinement) because he actually
violated the prison rules and not because of
his earlier grievances. To find otherwise
would render the prison disciplinary system
impotent by inviting prisoners to petition the
courts for a full retrial each time they are
found guilty of an actual disciplinary
infraction after having filed a grievance.
Because he was guilty of the disciplinary
charges resulting in the disciplinary harm at
issue, [plaintiff]'s retaliation claim fails.
O'Bryant v. Finch, 637 F.3d 1207, 1215-16 (11th Cir. 2011) (per
curiam) (footnote omitted). Thus, an inmate cannot state a claim of
11 See Wolff v. McDonnell, 418 U.S. 539 (1974); Superintendent
v. Hill, 472 U.S. 445 (1985).
26
retaliation for a disciplinary charge involving a prison rule
infraction when the inmate was found guilty of the actual behavior
underlying that charge after being afforded adequate due process.
See id. at 1215. In other words, there is no causal connection
between a DR and a prisoner's freedom of speech if the disciplinary
action would have been taken regardless of the prisoner's protected
speech. Id. at 1217 (citing Smith, 532 F.3d at 1278, n.22). "Any
possible causal connection between the protected activity (the
grievances) and the harm (the disciplinary charges and sanctions)
is severed since the harm is not in reaction to any protected
activity, but directly due to an improper activity." Id. at
1219–20.
First, Powell asserts that Defendants Reed, Braggs, Williams,
and Young retaliated against him for executing a witness statement
for inmate Abner Graham when they (1) placed him in AC pending an
investigation into the March 21st stabbing of inmate Dieudonne; (2)
issued a DR for aggravated battery or attempted aggravated battery
based on Dieudonne's initial statement that Powell had stabbed him;
and (3) found Powell guilty of the disciplinary infraction when
they knew Dieudonne later said that Powell was not involved. The
material facts underlying Powell's retaliation claims relating to
the AC placement and disciplinary proceedings are undisputed.
Powell was placed in AC pending an investigation due to Dieudonne's
initial statement accusing Powell of stabbing him in the shoulder.
27
See Def. Ex., Doc. 171-1 at 22-23. Defendant Reed issued a DR
against Powell for aggravated battery or attempted aggravated
battery based on Dieudonne's initial statement. See id. at 27.
During the investigation, Dieudonne recanted, stating that Powell
was not involved and that he initially accused Powell because he
was "mad" and thought Powell had "sent" the inmate who stabbed him.
Id. at 30. Dieudonne never said that officers coerced him to make
the initial statement. See id. Defendants Braggs and Williams found
Powell guilty of the DR infraction based on Reed's written factual
account, and Defendant Young approved the disciplinary team's
decision. See Braggs Aff.; Williams Decl.; Def. Ex., Doc. 171-1 at
29. Notably, Powell does not allege that his due process rights
were violated during the disciplinary proceedings. Defendants
Braggs and Williams explained that there was evidence to support
the disciplinary team's finding of guilt. See Braggs Aff.; Williams
Decl. Notably, there is no causal connection between the DR and
Powell's freedom of speech when the Defendants would have proceeded
with the disciplinary action regardless of Powell's protected
speech. See O'Bryant, 637 F.3d at 1217. Any possible causal
connection between the protected activity (the witness and
grievances) and the harm (the disciplinary charge and sanction) was
severed since the harm was not in reaction to any protected
activity, but directly due to an FDOC infraction. See id. at
1219–20.
28
Powell also states that Defendants Anderson, Young, Harris,
and Casimir retaliated against him when they assigned him to CMI
and transferred him from LCI to another institution. Powell was
interviewed on April 12, 2012, and later placed in CMI based on a
finding that he "displayed an inability to reside in general
population without presenting a ri[sk] of violence to other
inmates." Def. Ex., Doc. 171-1 at 36. Powell does not assert that
his due process rights were violated during the process of
approving him for CM designation. As to his transfer from LCI,
Defendant Folsom submitted an affidavit, see Def. Ex., Doc. 171-1
at 71-72, Affidavit of Jennifer Folsom (Folsom Aff.) explaining how
the FDOC makes transfer decisions.
As to transfers, this is entirely a
function of the classification officer, the
institution classification team (ICT) and
state classification officer (SCO). A
recommendation is made with review conducted
by the ICT and forwarded to the SCO.
Id. at 72. When Defendant Casimir was informed that Powell's
disciplinary report had been overturned, she determined that Powell
no longer met the requirements for CMI status. See Casimir Aff. at
69. Casimir therefore approved LCI's recommendation for a non-
negative transfer for Powell, see id. at 69-70, "because there
probably remained issues between the victim inmate and his
aggressors and the non-negative transfer, as the name implies, does
not negatively affect [Powell}," id. at 70; see also Def. Ex., Doc.
171-1 at 37 (approving CM release pending a transfer); Braggs Aff.
29
at 58; Harris Decl. at 64 (stating he did not have anything to do
with Powell's transfer); Folsom Aff. at 72 (stating she "was not
involved with any transfer of inmate Powell"). The FDOC transferred
Powell to Everglades Correctional Institution on July 30, 2012. See
Def. Ex., Doc. 171-1 at 1. Thus, to rebut Powell's assertion that
his protected conduct was a motivating factor in their decision to
transfer him, Defendants provided evidence that Powell was
transferred for a non-retaliatory reason. See id. at 70. Given that
the FDOC still would have transferred Powell even in the absence of
his filing of grievances and complaints relating to his conditions,
summary judgment in Defendants' favor is appropriate.
Next, Powell asserts that Defendant Harris retaliated against
him when he was promoted to an assistant warden position, and
encouraged other staff members not to provide Powell with medical
care. See Complaint at 14. In a declaration, Harris addresses the
issue, in pertinent part:
I was transferred to South Florida Reception
Center where I understand inmate Powell claims
I encouraged medical staff to not treat him.
This is not true. First, I have no authority
or control over the medical staff nor the
medical decisions they make. Second, a
reception center can have hundreds of inmates
moving through the center on a daily basis. I
would have no knowledge that inmate Powell was
transferring through the center.
Harris Decl. at 64-65. In the Complaint, Powell neither provides
dates nor specific instances where Harris encouraged medical staff
to deny him treatment. At deposition, Powell states that he was
30
transferred to Martin Correctional Institution, and then South
Florida Reception Center (SFRC) where he encountered Harris. See P.
Depo. at 46. According to Powell, Harris "encouraged Dr. Media" to
not treat him in February 2013, and upon Powell's return to SFRC on
March 18, 2014, Harris again "encouraged the medical staff[]" to
"discontinue" Powell's medical treatment. Response (Doc. 190).
Nevertheless, in an affidavit, Powell acknowledges that Dr. Media
did treat his elbow. See P. Aff. (Doc. 207) at 7. Given Powell's
assertions, he has neither shown that he suffered an adverse action
from Harris that would deter a person of ordinary firmness from
engaging in protected speech, nor a causal relationship between his
protected speech and the retaliatory conduct ("encouraging" others
to deny treatment) on the part of Defendant Harris.
Additionally, Powell asserts that Defendant Folsom retaliated
against him when she confiscated his property upon his return to
LCI in 2013. See Complaint at 12. Notably, Powell arrived at LCI on
January 25, 2013, and departed LCI on February 25, 2013. See Def.
Ex., Doc. 171-1 at 2, 8. At deposition, Powell stated that Folsom
and other officers met him with a wheelchair as he exited the
transportation van. See P. Depo. at 38. According to Powell, Folsom
took his property, stated "[y]ou don't get that where you're going
at[,]" id. at 44, and then "wheelchair[ed] him to LCI's mental
health unit," id. at 38. He stated that his trial transcript and a
31
picture of his mother are still missing. See id. at 45. In an
affidavit, Folsom states, in pertinent part:
I was Warden at Lake Correctional
Institution from 2011 to February 2013. The
claims made by inmate Gaynett Powell, DC
#07899 that I, as Warden of [Lake]
Correctional Institution, seized his property
and had him transferred are not true. First,
as Warden, I do not interact with the inmates
and seize anything. There are always
procedures and processes at the correctional
institution to conduct its business. Property
is never seized by a Warden and unlike inmate
Powell's claims, we do not order transfers.
Inmate's property is controlled and
inventoried through the dormitory and property
room officers. An inventory is done when an
inmate's property is seized. I am not aware of
any complaints or grievances filed by inmate
Powell about his property.
Folsom Aff. at 72. Powell acknowledges that the circumstances
surrounding his transfer to LCI that day were of a medically-
critical nature due to his declining health, and therefore,
officers immediately escorted him to the medical clinic. See
Complaint at 12. Notably, the FDOC rules provide that property room
officers inventory inmate property upon arrival at a penal
institution. See FLA. ADMIN. CODE r. 33-602.201, "Inmate Property."
Thus, even assuming officers took Powell's property just before his
escort to LCI's mental health unit, Powell has failed to show a
causal relationship between his protected speech and any
retaliatory action on the part of Defendant Folsom.
Given the evidence submitted by Defendants, the Court finds
they have met their initial burden of showing, by reference to
32
declarations, affidavits, and FDOC transfer, DR, and CM records,
that appropriate procedures were used when they placed him in AC
pending an investigation into the stabbing of Dieudonne, issued a
DR for aggravated battery or attempted aggravated battery, found
him guilty of the disciplinary infraction, placed him in CM, and
transferred him from LCI. Thus, Powell is required to present
evidence to show that there is a genuine issue for trial; he has
not done so. If this case were to proceed to trial, Powell would
have only his testimony to support his claims. All the exhibits
submitted by Defendants support their position that their actions
were not retaliatory and were unrelated to Powell's decision to
execute a witness statement for inmate Graham and/or his filing of
grievances and complaints about his conditions. Powell has failed
to point to any evidence creating a question of fact as to their
evidence.
In light of the evidence presented by Defendants and Powell's
failure to provide any evidence other than his own uncorroborated
version, no reasonable jury could find for Powell. See generally
Goodman v. Kimbrough, 718 F.3d 1325, 1332 (11th Cir. 2013)
(recognizing that "to defeat a motion for summary judgment, [the
plaintiff] must adduce specific evidence from which a jury could
reasonably find in his favor; [t]he mere existence of a scintilla
of evidence in support of [his] position will be insufficient"
(quotations and citation omitted)). As such, Defendants' Motion is
33
due to be granted as to Powell's First Amendment retaliation claims
against Defendants Harris, Reed, Casimir, Anderson, Folsom, Young,
Williams, and Braggs.12
B. Defendant Mesa's Motion for Summary Judgment
1. Eighth Amendment Deliberate Indifference
Powell asserts that Defendant Mesa denied him proper medical
treatment for his arm and hunger-strike symptoms. See Complaint at
12-14, 22. Defendant Mesa maintains that "[t]he evidence does not
show that Defendant's response to [Powell]'s medical symptoms was
objectively harmful to be a constitutional violation." Mesa Motion
at 9. In support of her Motion, Defendant Mesa submitted an
affidavit, see Def. Ex., Doc. 196-1 at 1-4, Affidavit of Dr.
Virginia Mesa (Mesa Aff.), Powell's medical records, see id. at 5-
23, and Powell's deposition, see P. Depo. Powell responded, see
Response (Doc. 209), and submitted his own affidavit, see P. Aff.
(Doc. 207). In his Affidavit, Powell states that genuine issues of
material fact exist, and the Court therefore should deny Mesa's
Motion, permit additional discovery, and appoint a medical expert
"who will be better able to appraise [sic] the Honorable Court on
whether [he] was denied treatments." P. Aff. at 8.
The Eleventh Circuit has explained the requirements for a
claim of constitutionally inadequate care:
12 For this same reason, Defendants assertion of their right
to qualified immunity would provide an alternative basis for
dismissal.
34
"The Constitution does not mandate
comfortable prisons, but neither does it
permit inhumane ones . . . ." Farmer, 511 U.S.
at 832, 114 S.Ct. at 1976 (internal quotation
and citation omitted).[13] Thus, in its
prohibition of "cruel and unusual
punishments," the Eighth Amendment requires
that prison officials provide humane
conditions of confinement. Id. However, as
noted above, only those conditions which
objectively amount to an "extreme deprivation"
violating contemporary standards of decency
are subject to Eighth Amendment scrutiny.
Hudson, 503 U.S. at 8-9, 112 S.Ct. at 1000.[14]
Furthermore, it is only a prison official's
subjective deliberate indifference to the
substantial risk of serious harm caused by
such conditions that gives rise to an Eighth
Amendment violation. Farmer, 511 U.S. at 828,
114 S.Ct. at 1974 (quotation and citation
omitted); Wilson, 501 U.S. at 303, 111 S.Ct.
at 2327.[15]
Thomas v. Bryant, 614 F.3d 1288, 1306-07 (11th Cir. 2010). "To show
that a prison official acted with deliberate indifference to
serious medical needs, a plaintiff must satisfy both an objective
and a subjective inquiry." Brown v. Johnson, 387 F.3d 1344, 1351
(11th Cir. 2004) (quoting Farrow v. West, 320 F.3d 1235, 1243 (11th
Cir. 2003)). First, the plaintiff must satisfy the objective
component by showing that he had a serious medical need. Goebert v.
Lee Cty., 510 F.3d 1312, 1326 (11th Cir. 2007).
"A serious medical need is considered
'one that has been diagnosed by a physician as
mandating treatment or one that is so obvious
13 Farmer v. Brennan, 511 U.S. 825 (1994).
14 Hudson v. McMillian, 503 U.S. 1 (1992).
15 Wilson v. Seiter, 501 U.S. 294 (1991).
35
that even a lay person would easily recognize
the necessity for a doctor's attention.'" Id.
(citing Hill v. Dekalb Reg'l Youth Det. Ctr.,
40 F.3d 1176, 1187 (11th Cir. 1994)). In
either case, "the medical need must be one
that, if left unattended, pos[es] a
substantial risk of serious harm." Id.
(citation and internal quotations marks
omitted).
Brown, 387 F.3d at 1351. Next, the plaintiff must satisfy the
subjective component, which requires the plaintiff to "allege that
the prison official, at a minimum, acted with a state of mind that
constituted deliberate indifference." Richardson v. Johnson, 598
F.3d 734, 737 (11th Cir. 2010) (per curiam) (describing the three
components of deliberate indifference as "(1) subjective knowledge
of a risk of serious harm; (2) disregard of that risk; (3) by
conduct that is more than mere negligence") (citing Farrow, 320
F.3d at 1245); Lane v. Philbin, 835 F.3d 1302, 1308 (11th Cir.
2016) (setting forth the three components) (citing Farrow, 320 F.3d
at 1245).
In Estelle[16], the Supreme Court
established that "deliberate indifference"
entails more than mere negligence. Estelle,
429 U.S. at 106, 97 S.Ct. 285; Farmer, 511
U.S. at 835, 114 S.Ct. 1970. The Supreme Court
clarified the "deliberate indifference"
standard in Farmer by holding that a prison
official cannot be found deliberately
indifferent under the Eighth Amendment "unless
the official knows of and disregards an
excessive risk to inmate health or safety; the
official must both be aware of facts from
which the inference could be drawn that a
16 Estelle v. Gamble, 429 U.S. 97 (1976).
36
substantial risk of serious harm exists, and
he must also draw the inference." Farmer, 511
U.S. at 837, 114 S.Ct. 1970 (emphasis added).
In interpreting Farmer and Estelle, this Court
explained in McElligott[17] that "deliberate
indifference has three components: (1)
subjective knowledge of a risk of serious
harm; (2) disregard of that risk; (3) by
conduct that is more than mere negligence."
McElligott, 182 F.3d at 1255; Taylor,[18] 221
F.3d at 1258 (stating that defendant must have
subjective awareness of an "objectively
serious need" and that his response must
constitute "an objectively insufficient
response to that need").
Farrow, 320 F.3d at 1245-46.
The chronology of events on which Powell bases his deliberate
indifference medical claim against Defendant Mesa is as follows.
Powell was confined at LCI from September 8, 2011, to July 30,
2012, and again from January 25, 2013, to February 25, 2013. See
Def. Ex., Doc. 171-1 at 1-2. Powell went on a hunger strike as a
"protest" for almost three weeks at Charlotte Correctional
Institution (Charlotte CI). P. Depo. at 39. The Charlotte CI mental
health staff transferred Powell on January 25, 2013, to LCI's
mental health hospital because he had lost consciousness and was
"very weak." Id.; Complaint at 12. A mental health administrator
explained Powell's history, symptoms, and behaviors that the staff
believed necessitated inpatient mental health care at the Crisis
Stabilization Unit (CSU) at LCI.
17 McElligott v. Foley, 182 F.3d 1248 (11th Cir. 1999).
18 Taylor v. Adams, 221 F.3d 1254 (11th Cir. 2000).
37
Inmate has been refusing mental health
treatment, including participation in
interviews, medications, and evaluations by
nursing. Reported A/H [(auditory
hallucinations)] and verbalizes paranoid
ideation about being harmed/killed by security
and MH [(mental health)] staff. Refuses to eat
due to fear of people tampering with his food.
Refused past 43 meals and today's interview.
Our CHO, Dr. Hemphill, reported we are
approaching a medical crisis at this point.
. . . .
Based on the chart, [Powell] has received
inpatient and outpatient TX [(treatment)]
prior to and during incarceration, including
CSU and TCU [(transitional care unit)]
admissions for depression, hallucinations, and
self-injury or threats of self-harm. He has a
significant HX [(history)] of head injury in
1990 and substance abuse since age 12, for
which he has received TX.
Def. Ex., Doc. 196-1 at 22, Charlotte CI Mental Health Clinic
Request for Inmate Transfer for Inpatient Treatment at CSU.
Defendant Mesa, LCI's CHO, held the position in 2013 when
Powell arrived. See Mesa Aff. Upon arrival at LCI, Powell was
experiencing symptoms from the three-week self-imposed hunger
strike. See P. Depo. at 42. He described ailments, such as high
blood pressure, insomnia, dizziness, exhaustion, weight loss,
bloody urine, and "brain jumping." Id. at 43; Complaint at 13. In
an affidavit, Defendant Mesa declared, in pertinent part:
Inmate Powell was transferred to Lake
C.I. on January 25, 2013 from Charlotte C.I.
At the time of transfer, inmate Powell's
records indicated that he was not eating, had
38
missed 45 meals, and was down in weight by 25
lbs.[19]
I examined inmate Powell on January 29,
2013.[20] During the review of sy[mptom]s
examination, Inmate Powell gave a past history
of Gonorrhea, depression or excessive worry,
allergies, and frequent or painful
urination.[21] Inmate Powell requested a
special 4,000 calorie high-protein diet and
vitamins as a favor to him.[22] He stated that
if I gave him the special diet, he would only
stay in the mental health unit for two weeks.
I told him that I do not provide special
favors and that his current health status does
not require vitamins and a high-calorie diet.
I noted that inmate Powell's body mass index
(BMI) was 24.37.[23] For a high-calorie diet to
become medically necessary, an inmate would
need a BMI of 18 or lower. Inmate Powell did
not require a high-calorie diet. Inmate Powell
refused to allow medical staff to check his
vital signs (including weight) on February 1,
5, 6, 19, and 23.[24]
On February 7, 2013, I examined inmate
Powell who appeared to have low hemoglobin. I
19 See Def. Ex., Doc. 196-1 at 5, FDOC Health Information
Transfer/Arrival Summary (stating Powell was not eating, had missed
45 meals, and lost 25 pounds, and that his medication (Vistaril)
was "on hold due to not eating").
20 See Def. Ex., Doc. 196-1 at 7, Powell's medical record.
21 See Def. Ex., Doc. 196-1 at 7.
22 See Def. Ex., Doc. 196-1 at 7; 8, Chronological Record of
Health.
23 See Def. Ex., Doc. 196-1 at 10, Powell's medical record.
24 See Def. Ex., Doc. 196-1 at 14-19, Refusal of Health Care
Services.
39
prescribed iron supplements to treat the low
hemoglobin.[25]
I met with inmate Powell on February 18,
2013 to discuss the results of an x-ray of his
left elbow. The x-ray showed no fracture,
dislocation, or subluxation, as well as,
normal soft tissue planes and bone density.[26]
At the meeting, inmate Powell refused to
discuss the x-ray results, refused to let me
examine his elbow, and refused to let himself
be weighed.[27]
Mesa Aff. at 2-3 (footnotes omitted).
Powell states that he injured his elbow on February 13, 2013.
See Powell Aff. (Doc. 207) at 7. He maintains that it takes at
least two weeks to "process and return" x-ray results. Id. The
Radiology Report shows that the x-ray of his left elbow was taken
on February 13, 2013, and Dr. Saks, M.D., reviewed the x-ray the
following afternoon on February 14th. See Def. Ex., Doc. 196-1 at
13. The findings were as follows:
AP [(anteroposterior)] and lateral views of
the left elbow demonstrate no fracture,
dislocation, or subluxation. Alignment of
bones is excellent. The soft tissue planes are
normal without displacement of fat planes.
There are no radiopaque foreign bodies. Bone
density and maturity are normal for a patient
of this age.
Minimal degenerative changes.
25 See Def. Ex., Doc. 196-1 at 11, Chronological Record of
Inpatient Mental Health Care.
26 See Def. Ex., Doc. 196-1 at 13, Radiology Report for Injury
to Left Elbow.
27 See Def. Ex., Doc. 196-1 at 9, 18.
40
See Def. Ex., Doc. 196-1 at 13, Radiology Report for Injury to Left
Elbow. Dr. Mesa received the Radiology Report on February 18, 2013.
See id. FDOC officers escorted Powell for left-elbow "wound care"
on February 20, 2013. See Def. Ex., Doc. 196-1 at 9. The medical
entry states, in pertinent part:
Inmate escorted to TX room for wound care per
order. [No] open area noted. But l[ef]t elbow
is slightly swollen just above the bone. And
inmate states that "it hurts when they
handcuff me in the back." Wound care - [no]
drainage. [No] [signs] of infection [at] this
time. . . . Refused to have weight done
stating "I'm all good."
Id.
As to any complaints about Defendant Mesa's negligent acts and
unprofessional conduct in providing allegedly substandard medical
care, see Response (Doc. 209) at 10, the law is well settled that
the Constitution is not implicated by the negligent acts of
corrections officials and medical personnel. Daniels v. Williams,
474 U.S. 327, 330-31 (1986); Davidson v. Cannon, 474 U.S. 344, 348
(1986) ("As we held in Daniels, the protections of the Due Process
Clause, whether procedural or substantive, are just not triggered
by lack of due care by prison officials."). A complaint that a
physician has been negligent "in diagnosing or treating a medical
condition does not state a valid claim of medical mistreatment
under the Eighth Amendment." Bingham v. Thomas, 654 F.3d 1171, 1176
(11th Cir. 2011) (per curiam) (quotation marks and citation
omitted). While Plaintiff's allegations may suggest medical
41
malpractice, "[a]ccidents, mistakes, negligence, and medical
malpractice are not 'constitutional violation[s] merely because the
victim is a prisoner.'" Harris v. Coweta Cty., 21 F.3d 388, 393
(11th Cir. 1994) (citing Estelle, 429 U.S. at 106). Consequently,
the allegedly negligent conduct of Dr. Mesa about which Powell
complains does not rise to the level of a federal constitutional
violation and provides no basis for relief in this 42 U.S.C. § 1983
action.
Powell believes that there was "some type of medical
treatment" that Defendant Mesa could provide to address and/or cure
his ailments. P. Depo. at 43. He acknowledges that Defendant Mesa
prescribed over-the-counter medications (Ibuprofen) and high blood
pressure medication, and ordered an x-ray and daily wound changes.
See P. Aff. (Doc. 207) at 3-4; Response (Doc. 209) at 3. However,
he maintains that he needed a more targeted-treatment regimen for
his specific hunger-strike symptoms and injured elbow, including
stronger pain medication, muscle relaxers, and a high-calorie diet.
See P. Aff. (Doc. 207) at 7; Response (Doc. 209) at 3. He concludes
that Mesa's "treatments were ineffective." P. Aff. at 4. Dr. Mesa
disagreed with Powell; she opined that Powell's body mass index did
not warrant a high-calorie diet. See Mesa Aff.
The United States Supreme Court has stated:
[T]he question whether an X-ray or additional
diagnostic techniques or forms of treatment is
indicated is a classic example of a matter for
medical judgment. A medical decision not to
42
order an X-ray, or like measures, does not
represent cruel and unusual punishment. At
most[,] it is medical malpractice, and as such
the proper forum is the state court . . . .
Estelle, 429 U.S. at 107; Adams v. Poag, 61 F.3d 1537, 1545 (11th
Cir. 1995) ("[T]he question of whether [Defendant Mesa] should have
employed additional diagnostic techniques or forms of treatment 'is
a classic example of a matter for medical judgment' and therefore
not an appropriate basis for grounding liability under the Eighth
Amendment."). "Nor does a simple difference in medical opinion as
to [Powell's] diagnosis or course of treatment support a claim of
cruel and unusual punishment." Harris v. Thigpen, 941 F.2d 1495,
1505 (11th Cir. 1991) (citation omitted). Moreover, medical
treatment violates the Constitution only when it is "so grossly
incompetent, inadequate, or excessive as to shock the conscience or
to be intolerable to fundamental fairness." Rogers, 792 F.2d at
1058 (citation omitted)). Defendant Mesa asserts, and this Court
agrees, that there remain no genuine issues of material fact as to
Powell's deliberate indifference claim against her. Mesa did not
disregard Powell's medical needs; instead, she and her staff were
responsive to and timely addressed his needs. She simply was not
deliberately indifferent to his serious medical needs. As such,
Defendant Mesa's Motion is due to be granted as to Powell's Eighth
Amendment deliberate indifference claim against her.
43
2. First Amendment Retaliation Claim
Powell asserts that Defendant Mesa retaliated against him for
filing grievances when she denied him proper medical treatment and
transferred him to a non-medical institution. See Complaint at 13,
20. Defendant Mesa maintains that "[t]he evidence fails to
establish a causal connection between the retaliatory act and the
adverse effect on the conduct." Mesa Motion at 10. In his Response,
Powell states that genuine issues of material fact exist as to his
retaliation claims against Defendant Mesa, and therefore, the Court
should deny Mesa's Motion. See Response at 7; P. Aff. at 8.
In Mesa's affidavit, she addressed Powell's retaliation
assertions against her.
Inmate Powell claims that as he was
entering the mental health unit Warden Folsom
stated to me that "he is back." This is false.
Warden Folsom did not say that to me, nor
would Warden Folsom personally escort inmates
to the mental health unit. Moreover, inmate
Powell falsely claims that I told him that
things would get better for him if he stops
writing grievances and complaints. I did not
tell him that, nor would I say any such
statement to an inmate.
. . . .[28]
I did not and do not have the authority to
transfer inmate Powell to another facility, to
28 Defendant Mesa states: "I could not have discontinued inmate
Powell's antidepressant medication as only the prison's
psychiatrist has that authority." Mesa Aff. at 3. Notably, Powell
blames Dr. Walker for discontinuing his antidepressant medication,
not Dr. Mesa. See Complaint at 11 ¶18, 19 ¶45; P. Depo. at 46-47.
44
place an inmate in close management, or into
AC confinement as he claims.
Mesa Aff. at 3.
Given the undisputed material facts relating to Mesa's
treatment plan, she appropriately addressed Powell's injuries
during his one-month stay at LCI. At most, there was a difference
of opinion as to the safest approach to treat Powell's self-imposed
food-deprivation ailments. Additionally, Mesa had no authority to
transfer Powell to another institution. See id. Nevertheless, as
Powell explained, his transfer to a non-medical institution
resulted in a referral to a specialist at SFRC where he obtained
additional treatment for his elbow. See P. Aff. (Doc. 207) at 7. In
light of Powell's assertions, he has not shown that he suffered
adverse actions from Dr. Mesa (that would deter a person of
ordinary firmness from filing grievances). And, even assuming such,
he has not shown that his protected speech (the filing of
grievances) and any adverse actions were causally connected. As
such, Defendant Mesa's Motion is due to be granted.
3. Fourteenth Amendment Claim
Defendant Mesa maintains that Powell's Fourteenth Amendment
claim against her "is unclear." Mesa Motion at 11. In his Response,
Powell fails to address any Fourteenth Amendment claim against
Defendant Mesa. See Response (Doc. 209). To establish a claim
cognizable under the Equal Protection Clause, an inmate must show
that "(1) he is similarly situated to other prisoners who received
45
more favorable treatment[,] and (2) the state engaged in invidious
discrimination against him based on race, religion, national
origin, or some other constitutionally protected basis." Sweet v.
Sec'y, Dep't. of Corr., 467 F.3d 1311, 1318–19 (11th Cir. 2006)
(citing Jones v. Ray, 279 F.3d 944, 946–47 (11th Cir. 2001);
Damiano v. Fla. Parole and Prob. Comm'n, 785 F.2d 929, 932-33 (11th
Cir. 1986)). Taking Powell's assertions as true, he neither alleges
the existence of any similarly-situated comparator, nor presents
any facts that Mesa discriminated against him on some
constitutionally protected basis.
Additionally, as to any Fourteenth Amendment due process
violation, Defendant Mesa was neither involved in Powell's AC, CM,
DC assignments, disciplinary proceedings, nor institutional
transfers. See Mesa Aff. at 3. To the extent Powell blames
Defendant Mesa for his transfer to Martin Correctional Institution,
which he describes as a non-medical institution, see P. Depo. at
46, "an inmate has no justifiable expectation that he will be
incarcerated in any particular prison within a State[.]" Olim v.
Wakinekona, 461 U.S. 238, 245 (1983) (footnote omitted); see also
Barfield v. Brierton, 883 F.2d 923, 936 (11th Cir. 1989) (citing
Meachum v. Fano, 427 U.S. 215 (1976)) (stating "inmates usually
possess no constitutional right to be housed at one prison over
another"). In light of the foregoing, Defendant Mesa's Motion is
46
due to be granted as to any Fourteenth Amendment claim against
her.29
C. Defendant Jhon Deo (John Doe)
The Court instructed Powell that it is his responsibility to
identify the John Doe Defendant. See Order (Doc. 17), filed October
20, 2016, at 1 n.1. The Court advised Powell that dismissal of the
Defendant may be warranted if the Defendant "cannot be identified
sufficiently in order to summon that individual to appear . . . ."
Id. Over the course of these proceedings, Powell has failed to
provide any information for service of process on the John Doe
Defendant. Powell has had sufficient time to identify the
Defendant, and more than two years has passed since the Court
advised Powell. Moreover, Powell engaged in discovery to identify
other Defendants. See Orders (Docs. 106, 99, 77); Notice (Doc. 68).
Therefore, Powell's claims against Defendant Jhon Deo (John Doe)
are due to be dismissed.
D. Defendant Dr. Walker
Powell filed an Objection to the Department of Corrections'
Response to the Court Order Dated October 1, 2018 (Objection; Doc.
210). In the Objection, Powell asserts that the FDOC, in its
response (Doc. 166), "unjustly failed to act[] with reasonable
diligence and with energetic [sic] in attempting to comply with the
29 The Court need not address Defendant Mesa's assertions that
Powell is not entitled to injunctive relief and monetary damages.
See Mesa Motion at 14-15.
47
Court's Order [(Doc 161)]." Objection at 2. As relief, he seeks
sanctions against the FDOC and a stay of the case until the FDOC
locates Dr. Walker. See id. at 3. On May 10, 2019, the Court denied
Powell's request to reconsider the Court's dismissal of Defendant
Walker, and reinstate Walker as a Defendant. See Order (Doc. 203).
In doing so, the Court stated, in pertinent part:
As to Walker, the Court dismissed him on
January 30, 2019. See Order (Doc. 179). The
Court has addressed the lengthy process that
evolved over the years to attempt to serve
Defendant Walker without success. See Order
(Doc. 161). Upon review, the Court will deny
Powell's request to reinstate Dr. Walker as a
Defendant. See Docs. 166, 161, 156, 149, 141,
138, 118, 50.
Id. at 2. As such, Powell's Objection is due to be overruled.
E. Request to Reopen Discovery
Powell states that the Court entered "a second discovery
scheduling order" to permit him to engage in discovery with Dr.
Mesa. P. Aff. (Doc. 207) at 1; see also Scheduling Order for
Defendant Mesa (Doc 162) ("All discovery with respect to
Plaintiff's claims against Doctor Mesa shall be completed on or
before January 2, 2019.") (emphasis deleted), filed October 1,
2018. Preliminarily, the Court notes that a request for affirmative
relief, such as a request to reopen discovery, is not properly made
when simply included in a response to a motion. See Fed. R. Civ. P.
7(b). Moreover, even if it were proper to include such a request in
a response to a summary judgment, the request is otherwise due to
be denied for failure to comply with Local Rules 3.01(a) and
48
3.01(g), United States District Court, Middle District of Florida
(Local Rule(s)). Local Rule 3.01(a) requires a memorandum of legal
authority in support of a request from the Court. See Local Rule
3.01(a). Local Rule 3.01(g) requires certification that the moving
party has conferred with opposing counsel in a good faith effort to
resolve the issue raised by the motion and advising the Court
whether opposing counsel agrees to the relief requested. See Local
Rule 3.01(g). Thus, the Court will not entertain Powell's request
for relief included in his affidavit.30
F. Motion for Appointment of Experts
Powell requests that the Court appoint medical and First
Amendment experts to help the Court understand the issues relating
to Powell's assertions against Defendant Mesa. See Motion for
Appointment of Experts (Motion; Doc. 208) at 1; P. Aff. (Doc. 207)
at 2, 6, 8. Defendants oppose the Motion. See Response in
Opposition to Plaintiff's Motion for Appointment of Experts (Def.
Response; Doc. 211). They maintain that Powell's assertions are not
so complex as to warrant court-appointed medical and First
Amendment experts. See id. at 4. The Court agrees that the issues
before the Court are straightforward, and neither scientifically
nor technically complicated. As such, there are no compelling
circumstances that warrant the appointment of medical and First
30 The Court previously addressed the discovery issue. See
Order (Doc. 203), filed May 10, 2019, at 2-3; Order (Doc. 181) at
2-3.
49
Amendment experts to aid the Court in evaluating the evidence. See
Fed. R. Evid. 706(a); Gillentine v. Correctional Med. Servs., Inc.,
556 F. App'x 845, 846 (11th Cir. 2014); Steele v. Shah, 87 F.3d
1266, 1271 (11th Cir. 1996). Accordingly, Plaintiff's Motion for
Appointment of Experts (Doc. 208) is due to be denied.
In light of the foregoing, it is now
ORDERED AND ADJUDGED:
1. Defendants Harris, Braggs, Casimir, Reed, Folsom,
Williams, Young, and Anderson's Motion for Summary Judgment (Doc.
171) is GRANTED as to Powell's First Amendment claims against them,
and judgment will be entered in their favor.
2. Defendant Mesa's Motion for Summary Judgment (Doc. 196)
is GRANTED as to Powell's First, Eighth, and Fourteenth Amendment
claims against her, and judgment will be entered in her favor.
3. Powell's claims against Defendant Jhon Deo (John Doe) are
DISMISSED.
4. The Court OVERRULES Powell's Objection to the Department
of Corrections' Response to the Court Order Dated October 1, 2018
(Doc. 210).
5. Powell's Motion for Appointment of Experts (Doc. 208) is
DENIED.
50
6. The Clerk shall enter judgment in favor of the
Defendants, and close the case.
DONE AND ORDERED in Chambers, this 27th day of August, 2019.
actA Maly Le
United States District Judge
sc 8/27
ct
Gaynett Powell, FDOC #1L07899
Counsel of Record
51