Milledge v. McNeil

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

COREY MILLEDGE,

Plaintiff,

v. Case No. 3:14-cv-248-J-32MCR

WALTER MCNEIL, et al.,

Defendants.

ORDER

I. Status

Plaintiff, an inmate of the Florida penal system, initiated this case by

filing a pro se Civil Rights Complaint (Doc. 1) pursuant to 42 U.S.C. § 1983.1 He

is currently proceeding on a Second Amended Complaint (Doc. 82), in which he

names the following twenty Defendants: Frederick Walker, Brad Whitehead,

Michael Jenkins, Brian Norman, Salina Gaskins, Sarah Salle, Julian Bullard,

Phillip Maginnis, Vernon Lee, Christopher McFarland, Eric Canida, Barry

Walden, Craig Slocum, James Fleming, Michael Harris, Nan A. Jeffcoat, Walter

McNeil, Barry Reddish, Jesse Kelly, and Shawn Swain. He raises several claims

1 Plaintiff has filed five other civil rights cases in this Court. See Case Nos. 3:07-

cv-976-J-34MCR; 3:17-cv-483-J-39MCR; 2:18-cv-413-FtM-38NPM; 3:19-cv-

1406-HLA-JBT; 3:19-cv-1365-J-25JRK. He has also filed a civil rights case in

the Northern District of Florida. See Case No. 4:15-cv-577-WS-CAS.

in fourteen Counts, and his factual allegations span from March 2010 to June

2010 as well as May 2011 at Union Correctional Institution.2

Before the Court is Defendants’ Motion for Partial Summary Judgment

(Docs. 163, 164, 167).3 Plaintiff was previously advised of the provisions of

2 Count I: failure to protect and intervene against Defendants Canida, Lee, and

Fleming based on events occurring on March 15, 2010; Count II: deliberate

indifference to serious medical needs against Defendant Fleming based on

events occurring on March 15, 2010; Count III: excessive force and failure to

intervene against Defendants Fleming, Canida, and Lee based on events

occurring on March 25, 2010; Count IV: failure to intervene against Defendant

Swain for events occurring on April 1, 2010; Count V: deliberate indifference to

serious medical needs/interference with medical treatment against Defendant

Swain on April 1, 2010 and May 26, 2010; Count VI: excessive force and failure

to intervene against Defendants Fleming, Canida, and Lee based on events

occurring on May 7, 2010; Count VII: deliberate indifference to serious medical

needs against Defendant Gaskins on various dates between April 2010 and

June 2010; Count VIII: excessive force and failure to intervene against

Defendants Canida, Walden, Fleming, Jenkins, Swain, Walker, Kelly, and Salle

based on events occurring on May 26, 2010; Count IX: excessive force and failure

to intervene against Defendants Bullard, Harris, Maginnis, McFarland, and

Slocum based on events occurring on June 10, 2010; Count X: excessive force

against Defendant Norman based on events occurring on June 11, 2010; Count

XI: excessive force against Defendant Harris for events occurring on May 16,

2011; and Counts XII through XIV: various claims against Defendants McNeil,

Reddish, Jeffcoat, and/or Whitehead.

3 The quality of the work in the Motion filed by the Attorney General’s Office

falls short of what the Court expects. For example, there are exhibits cited that

were not filed. See Doc. 163 at 10 (citing Exhibit Z at various page numbers that

were not filed), 22 (Index to Exhibits labeling Exhibits G, I, S, and AA as

Declarations of Defendants Jenkins, Maginnis, Whitehead, and Kelly, but these

exhibits were not filed; but Defendant McFarland’s Declaration was filed twice

(Docs. 163-7 and 163-10)). As another example, there are incomplete and

inaccurate sentences. See id. at 9 (“With regard to Defendant Swain

handcuffing Plaintiff in the front, in violation of his front cuff pass . . . ”), 11

(“One cannot be held liable for the actions or omissions of others but can only

Federal Rule of Civil Procedure 56, and that the granting of a motion for

summary judgment would result in the termination of this case. See Order (Doc.

31). Plaintiff filed a Response (Doc. 202). The Motion is ripe for review.

II. Standard of Review

“‘Summary judgment is appropriate where there is no genuine issue as to

any material fact and the moving party is entitled to judgment as a matter of

law.’” Hinkle v. Midland Credit Mgmt., Inc., 827 F.3d 1295, 1300 (11th Cir.

2016) (quoting Jurich v. Compass Marine, Inc., 764 F.3d 1302, 1304 (11th Cir.

2014)); see Fed. R. Civ. P. 56(a). “A genuine issue of material fact exists when

the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Bowen v. Manheim Remarketing, Inc., 882 F.3d 1358, 1362

(11th Cir. 2018) (quotations and citation omitted); see Hornsby-Culpepper v.

Ware, 906 F.3d 1302, 1311 (11th Cir. 2018) (“Where the record taken as a whole

could not lead a rational trier of fact to find for the non-moving party, there is

no genuine issue for trial.” (quotations and citation omitted)). In considering a

summary judgment motion, the Court views “the evidence and all reasonable

be held responsible if he participated in the 1994) . . . ”), 17 (“Defendants are

entitled qualified immunity bars Plaintiff rights claims.”). Additionally, the

Motion discusses a plaintiff in an unrelated case. See id. at 16 (“Plaintiff claims

to have suffered pain because of not having the heel lift and sneakers.”). These

inadequacies tax the already-limited judicial resources and make the decision-

making more difficult. Nevertheless, the Court endeavors to address the

arguments asserted.

inferences drawn from it in the light most favorable to the nonmoving party.”

Hornsby-Culpepper, 906 F.3d at 1311 (quotations and citation omitted).

“[W]hen the moving party has carried its burden under Rule 56(c), its

opponent must do more than simply show that there is some metaphysical

doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986) (footnote and citation omitted); see Winborn v.

Supreme Beverage Co. Inc., 572 F. App’x 672, 674 (11th Cir. 2014) (per curiam)

(“If the movant satisfies the burden of production showing that there is no

genuine issue of fact, ‘the nonmoving party must present evidence beyond the

pleadings showing that a reasonable jury could find in its favor.’” (quoting

Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008)). “A ‘mere scintilla’ of

evidence supporting the opposing party’s position will not suffice; there must be

enough of a showing that the jury could reasonably find for that party.” Loren

v. Sasser, 309 F.3d 1296, 1302 (11th Cir. 2002) (quoting Walker v. Darby, 911

F.2d 1573, 1577 (11th Cir. 1990) (internal quotations omitted)).

However, “[w]hen the non-moving party bears the burden of proof on an

issue at trial, the moving party need not ‘support its motion with affidavits or

other similar material negating the opponent’s claim,’ in order to discharge this

initial responsibility. Instead, the moving party simply may ‘show[ ]Cthat is,

point[ ] out to the district courtCthat there is an absence of evidence to support

the nonmoving party’s case.’” Gonzalez v. Lee Cty. Hous. Auth., 161 F.3d 1290,

1294 (11th Cir. 1998) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325

(1986)). “If the nonmoving party ‘fails to make a showing sufficient to establish

the existence of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial,’ then there is no genuine dispute as

to any material fact because ‘a complete failure of proof concerning an essential

element of the nonmoving party’s case necessarily renders all other facts

immaterial.’” Alston v. City of Darien, 750 F. App’x 825, 831 (11th Cir. 2018)

(quoting Celotex Corp., 477 U.S. at 322-23); see also Lowe v. Exel, Inc., 758 F.

App’x 863, 865 (11th Cir. 2019) (“[I]f the non-moving party fail[s] to make a

showing on an essential element of his case with respect to which he ha[s] the

burden of proof, then the entry of judgment as a matter of law is appropriate.”

(quotations and citation omitted)).

III. Discussion

Because Defendants only move for summary judgment on certain issues,

the Court focuses the analysis on those issues.

A. Failure to Intervene4 – Defendant Salle

As part of his allegations supporting Count VIII, Plaintiff alleges the

following occurred after he received a shave on May 26, 2010:

4 In the Motion, Defendants label this claim as “Failure to Protect,” but as

Plaintiff explains in his Response, he clearly brought a failure-to-intervene

claim. See Doc. 82 at 43; Doc. 202 at 5.

Once Officer Canida adjusted [Plaintiff’s] spit shield,

Officer Canida used his hand to shove [Plaintiff] in the

face. Officer Canida then slammed [Plaintiff] on the

floor while he was in handcuffs, waist chain, and leg

shackles. Defendant Correctional Officer Sarah Salle,

who was in the control room at the time, and Walden

stood by watching and did not intervene in obedience

to a long-standing custom or policy at Union

Correctional Institution of the code of silence and non-

interference with physical abuse of inmates.

As [Plaintiff] lay on the floor in handcuffs, waist

chain, and leg shackles, Officer Canida punched

[Plaintiff] in the face [a] couple times and kneed him

in the back. Officers Salle and Walden continued to

watch.

Doc. 82 at 24. As a result, Plaintiff claims that Defendant Salle violated his

Eighth Amendment rights when she “stood by watching parts of the physical

abuse against Plaintiff and did not intervene when [she] had an opportunity to

do so.” Id. at 43.

Defendants argue that Plaintiff failed to prove a constitutional violation

against Defendant Salle. Doc. 163 at 6. According to Defendants, “Defendant

Salle would not have had the ability to reasonably insert herself to stop the

alleged assault without additional help.” Id. at 7. Defendant Salle averred as

follows in her Declaration: “I never witnessed the physical abuse of Inmate

Milledge by any corrections officer. If I was in the control room when a use of

force occurred, I am not allowed to exit the control room. Additionally, a control

room is locked, which would require the door to the control room to be unlocked

prior to exi[]ting.” Doc. 163-14 at 1.

In response, Plaintiff relies on his Affidavit to prove that Defendant Salle

watched while Defendant Canida used excessive force on him, and Defendant

Salle had the opportunity to intervene but failed to do so. Doc. 202 at 6-7; see

also Doc. 202-1 at 15-16. He states that the “attack . . . lasted at least one

minute.” Doc. 202-1 at 15. He suggests that “Defendant Salle could have

intervened by using her radio to request for assistance,” and that based on past

experience, officers would have arrived within 5-10 seconds of her radioing for

help. Id. at 15-16.

“‘[A]n officer who is present at the scene and who fails to take reasonable

steps to protect the victim of another officer’s use of excessive force, can be held

liable for his nonfeasance.’” Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir.

2008) (quoting Velazquez v. City of Hialeah, 484 F.3d 1340, 1341 (11th Cir.

2007)). “To be held liable on a theory of nonfeasance, the officer must have been

in a position to intervene but failed to do so.” Hunter v. Leeds, City of, 941 F.3d

1265, 1282 (11th Cir. 2019) (citing Priester v. City of Riviera Beach, Fla., 208

F.3d 919, 924 (11th Cir. 2000)).

Based on Plaintiff’s own allegations, there was no time for Defendant

Salle to intervene because the alleged assault occurred spontaneously and she

was not at the scene of the alleged assault or in a position to stop it. Indeed,

Plaintiff states Defendant Canida adjusted Plaintiff’s spit shield, shoved him in

the face, and then slammed him on the floor. Once Plaintiff was on the floor,

Defendant Canida kneed him in the back and punched him in the face a couple

times. In Plaintiff’s grievance dated May 28, 2010, he described the “assault” as

follows: “I stood up and Officer Canida pulled my spit shield down over my face.

All of sudden Officer Canida just [unreadable] me inside my face. Officer Canida

then maliciously and sadistic[ally] attacked me by slamming me to the hard

concret[e] floor.” Doc. 163-24 at 45-46 (emphasis added).

It is undisputed that Defendant Salle was in the control room at the time

of the alleged assault, and Plaintiff has failed to offer any evidence to rebut

Defendant Salle’s Declaration that she was not in a position to intervene.

Plaintiff’s Affidavit merely repeats the allegations in the Second Amended

Complaint and suggests that Defendant Salle could have used her radio to

request assistance. But the spontaneous nature of the force described does not

lead to an inference that there was time or an opportunity for Defendant Salle

to intervene from the control room to stop the alleged assault. Thus, summary

judgment is due to be entered in favor of Defendant Salle on the failure-to-

intervene claim against her (raised in Count VIII). All other claims in Count

VIII will proceed.

B. Deliberate Indifference to Serious Medical Needs –

Defendant Gaskins

Plaintiff alleges that Defendant Gaskins was deliberately indifferent to

his serious medical needs when she failed to provide and/or intentionally denied

medical treatment (Count VII). He claims that on April 1, 2010, she came to his

cell but refused to provide him with a sick call slip. Doc. 82 at 12. She allegedly

stated, “You disrespect me yesterday, get off that door. . . . I’m going to say you

gunning me Milledge so you can go on property restriction, my boyfriend Swain

going to beat your ass, he will be at your door later on to counsel you, and you

not getting a sick call slip.” Id. Plaintiff further alleges that three days later, on

April 4, 2010, he asked Defendant Gaskins for a sick call slip so he could receive

treatment for his neck, shoulders, back, breathing problems, and chest pain. Id.

at 16-17. However, Defendant Gaskins allegedly refused to give him a sick call

slip. Id. at 17. On May 23, 2010, Plaintiff turned in a sick call slip requesting

medical treatment for breathing problems, a rash, and pain in his eyes, neck,

shoulder, and back. Id. at 21-22. The next day, May 24, 2010, Defendant

Gaskins approached Plaintiff’s cell and said, “‘I have already seen you for these

injuries, I’m not going to address your sick call slip, I want you to suffer.’” Id. at

22. Plaintiff turned in another sick call slip on May 31, 2010, complaining about

breathing problems, a rash, and pain in his eyes, neck, shoulders, and back. Id.

at 28. On June 2, 2010, Defendant Gaskins went to Plaintiff’s cell and told him,

“‘I got your sick call slip, but I’m not going to see you.’” Id. at 28. As a result of

these actions, Plaintiff claims that Defendant Gaskins was deliberately

indifferent by failing to provide medical treatment despite knowing of his

serious medical needs. Id. at 42-43.

Defendants argue that “Plaintiff cannot show that he suffered from a

serious medical need” or that Defendant Gaskins was “deliberately indifferent

to that need.” Doc. 163 at 8. More specifically, Defendants contend that “denying

sick call slip requests or failing to examine Plaintiff for injuries for which he

was previously examined is insufficient to constitute deliberate indifference to

a serious medical need.” Id. Defendants also argue that Plaintiff did not have a

serious medical need, as his injuries were de minimis. Id. Additionally,

Defendant Gaskins submitted a Declaration averring that Plaintiff’s

allegations as to her are untrue. See Doc. 163-4.

Plaintiff responds by relying on his Affidavit and contending that he

advised Defendant Gaskins in person and through sick call slips that he

suffered pain in his eyes, neck, shoulders, back, and chest, and that he was

having breathing problems. Doc. 202 at 9. Nevertheless, Plaintiff says

Defendant Gaskins failed to provide him with any medical care or treatment.

Id.

“To prevail on [a] § 1983 claim for inadequate medical treatment, [the

plaintiff] must show (1) a serious medical need; (2) the health care providers’

deliberate indifference to that need; and (3) causation between the health care

providers’ indifference and [the plaintiff’s] injury.” Nam Dang by & through

Vina Dang v. Sheriff, Seminole Cty. Fla., 871 F.3d 1272, 1279 (11th Cir. 2017)

(citation omitted).

A serious medical need is one that has been diagnosed

by a physician as mandating treatment or one that is

so obvious that even a lay person would easily

recognize the necessity for a doctor’s attention. In the

alternative, a serious medical need is determined by

whether a delay in treating the need worsens the

condition. In either case, the medical need must be one

that, if left unattended, poses a substantial risk of

serious harm.

Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1307 (11th Cir. 2009) (quotations and

citation omitted).

Deliberate indifference to a serious medical need requires “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.” Farrow v. West,

320 F.3d 1235, 1245 (11th Cir. 2003) (citations omitted); see Dang, 871 F.3d at

1280; Melton v. Abston, 841 F.3d 1207, 1223 & n.2 (11th Cir. 2016). “Subjective

knowledge of the risk requires that the defendant be ‘aware of facts from which

the inference could be drawn that a substantial risk of serious harm exists, and

he must also draw the inference.’” Dang, 871 F.3d at 1280 (quoting Caldwell v.

Warden, FCI Talladega, 784 F.3d 1090, 1099-1100 (11th Cir. 2014)).

An official disregards a serious risk by more than mere

negligence “when he [or she] knows that an inmate is

in serious need of medical care, but he [or she] fails or

refuses to obtain medical treatment for the inmate.”

Lancaster v. Monroe Cty., Ala., 116 F.3d 1419, 1425

(11th Cir. 1997), overruled on other grounds by

LeFrere v. Quezada, 588 F.3d 1317, 1318 (11th Cir.

2009). Even when medical care is ultimately provided,

a prison official may nonetheless act with deliberate

indifference by delaying the treatment of serious

medical needs. See Harris v. Coweta Cty., 21 F.3d 388,

393-94 (11th Cir. 1994) (citing Brown v. Hughes, 894

F.2d 1533, 1537-39 (11th Cir. 1990)).[5] Further,

“medical care which is so cursory as to amount to no

treatment at all may amount to deliberate

indifference.” Mandel v. Doe, 888 F.2d 783, 789 (11th

Cir. 1989) (citations omitted). However, 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 v. Evans, 792 F.2d

1052, 1058 (11th Cir. 1986) (citation omitted).

5 “Even where medical care is ultimately provided, a prison official may

nonetheless act with deliberate indifference by delaying the treatment of

serious medical needs, even for a period of hours, though the reason for the

delay and the nature of the medical need is relevant in determining what type

of delay is constitutionally intolerable.” McElligott v. Foley, 182 F.3d 1248, 1255

(11th Cir. 1999) (citation omitted). “Delayed medical treatment can rise to the

level of deliberate indifference when: (1) ‘it is apparent that delay would

detrimentally exacerbate the medical problem’; (2) the delay actually seriously

exacerbates the problem; and (3) ‘the delay is medically unjustified.’” James v.

Bartow Cty., Georgia, No. 18-14548, 2020 WL 376491, at *2 (11th Cir. Jan. 23,

2020) (quoting Taylor v. Adams, 221 F.3d 1254, 1259-60 (11th Cir. 2000)).

However, “[i]t is also true that when a prison inmate has received medical care,

courts hesitate to find an Eighth Amendment violation.” Waldrop v. Evans, 871

F.2d 1030, 1035 (11th Cir. 1989) (citing Hamm v. DeKalb Cty., 774 F.2d 1567,

1575 (11th Cir. 1985)); see Boone v. Gaxiola, 665 F. App’x 772, 774 (11th Cir.

2016).

Dang, 871 F.3d at 1280. “‘[I]mputed or collective knowledge cannot serve as the

basis for a claim of deliberate indifference. Each individual defendant must be

judged separately and on the basis of what that person kn[ew].’” Id. (quoting

Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008)).

Here, viewing the facts in the light most favorable to Plaintiff shows that

Defendant Gaskins was not deliberately indifferent to his serious medical

needs. Plaintiff contends that Defendant Gaskins failed to provide him sick call

slips on April 1 and 4, 2010, and that on May 24 and June 2, 2010, she refused

to see him in response to sick call slips he submitted. Notably, according to

Plaintiff’s own allegations, he was seen by a nurse twice on April 1, 2010,

following uses of force that occurred after Defendant Gaskins allegedly failed to

provide him with a sick call slip. See Doc. 82 at 12, 14-15; see also Doc. 163-22

at 54-67. He testified that he was seen by medical “a couple days” after April 1,

2010, and a doctor wrapped his thumb and gave him ice. Doc. 163-22 at 68. He

was also seen twice on May 26, 2010, and once on June 10, 2010, following uses

of force. Doc. 82 at 26-27.6 Plaintiff has failed to show that any of his medical

6 The medical records created immediately after the uses of force on May 26,

2010, show that after the first use of force, Plaintiff had a 2-3 cm swollen area

on his right eyebrow, but no bleeding, abrasion, or drainage; and after the

second use of force, his right eyebrow injury was documented as the same, and

he had 4-5 superficial scratches on his left wrist with no bleeding. Doc. 163-26

at 27. After the use of force on June 10, 2010, the medical records indicate that

Plaintiff had superficial abrasions on his elbows, superficial lacerations on his

right temporal and frontal regions but with no active bleeding, an abrasion on

conditions were caused by or worsened by Defendant Gaskins’ alleged failures

on these four dates, and he has failed to demonstrate a causal connection

between his alleged injuries and Defendant Gaskins’ inactions. See generally

James v. Bartow Cty., Georgia, No. 18-14548, 2020 WL 376491, at *2 (11th Cir.

Jan. 23, 2020) (“A prisoner must provide ‘verif[ied] medical evidence . . . to

establish the detrimental effect of delay in medical treatment.’” (citation

omitted)). Even if Defendant Gaskins ignored Plaintiff’s requests for sick call

slips on two occasions, and did not render treatment on two occasions, such

actions do not amount to deliberate indifference in this instance. As a matter of

law, Plaintiff has failed to show that Defendant Gaskins acted with deliberate

indifference. Defendants’ Motion is due to be granted as to Count VII.

C. Deliberate Indifference to Serious Medical Needs –

Defendant Swain

Plaintiff contends that Defendant Swain intentionally interfered with his

medical treatment on April 1, 2010, and May 26, 2010, when Defendant Swain

directed that Plaintiff be handcuffed behind his back despite Plaintiff’s front-

cuff pass (Count V). According to Defendants, Defendant Swain directed

Plaintiff be handcuffed behind his back on two occasions following uses of force,

and he did so to preserve internal discipline and institutional security. Doc. 163

his knee, and erythema and ecchymosis laterally and below the right eye. See

Doc. 163-27 at 18-20.

at 9. They further argue that “Plaintiff has failed to allege a constitutional

injury due to Defendant Swain handcuffing him behind the back twice,

following a use-of-force.” Id. In a Declaration, Defendant Swain avers that he

“never interfered with medical treatment of Plaintiff nor was [he] aware that

Plaintiff had a front cuff medical pass and ordered that he be cuffed in the back.

If an inmate is violent towards staff[,] security required that he be cuffed in the

back to prevent harm to staff.” Doc. 163-16 at 2.

In response, Plaintiff contends that he “verbally told Defendant Swain

that he had a medical pass to be cuffed in the front which could have been

verified by the medical department.” Doc. 202 at 9. Nevertheless, according to

Plaintiff, Defendant Swain ordered that he be handcuffed behind his back on

two occasions, which “caused his right shoulder to fall out of the socket.” Id. at

10. He avers that this caused him pain and suffering. Id.

The record shows that on the two occasions Plaintiff was handcuffed

behind his back, each occurrence happened after a use of force. On April 1, 2010,

chemical agents were used on Plaintiff, he was given a decontamination shower,

and then he was escorted to the medical unit for a post-use-of-force physical.

See Doc. 82 at 12-14. Afterwards, he was taken back to his cell, where another

use of force occurred.7 Id. at 15. After this second use of force, Defendant Swain

ordered that Plaintiff be handcuffed in the back. Id.; see Doc. 163-22 at 66-67.

He was taken back to a medical room where “[a] nurse once again saw [him] for

a post use-of-force physical.”8 Doc. 82 at 12-14. On the second date, May 26,

2010, Plaintiff was involved in a use of force, after which he alleges that

Defendant Swain ordered his handcuffs be moved from the front to the back. Id.

at 26. According to Plaintiff, Defendant Swain knew that he had a medical pass

to be handcuffed in the front at all times. Id. Plaintiff was escorted to a medical

room and examined by a nurse for a post-use-of-force physical. Id. Plaintiff

complains that the nurse did not document his injuries and refused to examine

his chest area. Id.

On both occasions, Plaintiff was immediately examined by medical staff

after he was handcuffed behind his back. He does not claim that the handcuffing

behind his back lasted for a long period of time. Even assuming Defendant

Swain knew of Plaintiff’s front cuff pass, which he denies, the decision to

temporarily handcuff Plaintiff behind his back following two uses of force does

not rise to the level of deliberate indifference or intentionally interfering with

7 Plaintiff alleges that an officer grabbed his “left thumb and twisted it way back

in an attempt to break it.” Doc. 82 at 14-15.

8 Plaintiff alleges that an unnamed nurse examined him, he complained to two

nurses about his eyes burning, and the “nurses said to [Plaintiff] that they don’t

have nothing to wash his eyes out with.” Doc. 82 at 15.

medical treatment, especially when Plaintiff has not presented any evidence to

support his assertion that this caused “his right shoulder to fall out of the

socket.” Courts generally defer to corrections officials when making judgments

regarding prison safety and security. See generally Bell v. Wolfish, 441 U.S.

520, 547 (1979) (“Prison officials must be free to take appropriate action to

ensure the safety of inmates and corrections personnel.”). Defendant Swain’s

decision regarding how to handcuff an inmate immediately following a use of

force deserves deference. Defendants’ Motion is due to be granted as to Count

V.

D. Claims against Defendants McNeil, Reddish, Jeffcoat,

and Whitehead

Plaintiff raises three claims (Counts XII, XIII, XIV) against four

supervisory Defendants: McNeil, Reddish, Jeffcoat, and Whitehead.9 In the

Motion, Defendants do not specifically address Plaintiff’s Counts. Rather, they

divide their arguments as to the supervisory Defendants into two parts:

“Grievance Liability” and “Supervisory Liability.” See Doc. 163 at 9-12. They

argue that Defendants McNeil, Reddish, Jeffcoat, and Whitehead can neither

be held liable merely because they responded to or failed to respond to Plaintiff’s

9 During the relevant timeframe, Defendant McNeil was the Secretary of the

Florida Department of Corrections; Defendant Reddish was the Warden at UCI;

and Defendants Jeffcoat and Whitehead were Assistant Wardens at UCI.

grievances, nor can they be held liable based on supervisory liability. See id.

They assert that the only evidence Plaintiff has of a custom or practice is his

testimony about what he sees the correctional staff do, and they further assert

that Plaintiff’s own experiences of alleged abuse “is not evidence of widespread

abuse.” Id. at 11-12. For clarity, the Court sets out the law regarding

supervisory liability before analyzing each count.

“Supervisory officials cannot be held vicariously liable under section 1983

for the actions of their subordinates unless the supervisor ‘personally

participates in the alleged unconstitutional conduct’ or ‘there is a causal

connection between the actions of a supervising official and the alleged

constitutional deprivation.’” Smith v. Deal, 760 F. App’x 972, 975 (11th Cir.

2019) (quoting Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003)).

The necessary causal connection can be established

“when a history of widespread abuse puts the

responsible supervisor on notice of the need to correct

the alleged deprivation, and he fails to do so.”

Alternatively, the causal connection may be

established when a supervisor’s “‘custom or policy . . .

result[s] in deliberate indifference to constitutional

rights’” or when facts support “an inference that the

supervisor directed the subordinates to act unlawfully

or knew that the subordinates would act unlawfully

and failed to stop them from doing so.”

Cottone, 326 F.3d at 1360 (internal citations omitted). When a plaintiff’s claim

of supervisory liability is based on a history of widespread abuse, “[t]he

deprivations that constitute widespread abuse sufficient to notify the

supervising official must be obvious, flagrant, rampant, and of continued

duration, rather than isolated occurrences.” Knight through Kerr v.

Miami-Dade Cty., 856 F.3d 795, 820 (11th Cir. 2017). “[T]he standard by which

a supervisor is held liable in h[is] individual capacity for the actions of a

subordinate is extremely rigorous.” Id. (quotations and citation omitted).

i. Count XII

Count XII claims that Defendants McNeil, Reddish, and Jeffcoat failed to

ensure Plaintiff received appropriate medical treatment after they “were aware

of facts that gave rise to an inference of risk of serious harm and drew that

inference as well and actual notice through Plaintiff’s grievance of appeal.” Doc.

82 at 45. Plaintiff states that these Defendants “received numerous requests for

medical treatment from Plaintiff that described the seriousness of the injuries

and the pain they caused and [Defendants] showed deliberate indifference to

the injuries and pain.” Id. at 46; see also Doc. 163-22 at 26 (Plaintiff testifying

at his deposition that he sent grievances to the supervisory Defendants

regarding needing surgery on his shoulder).10 He claims that they were the

“policymakers who were responsible for the provision of medical care at [UCI],

10 Plaintiff had surgery on his left shoulder in December 2009. See Doc. 202-17

at 5.

and they had the power to see that timely medical care was provided to

Plaintiff.” Doc. 82 at 45-46.

These supervisory Defendants are not alleged to have personally

participated in Plaintiff’s medical care or treatment. Rather, Plaintiff

essentially claims that they should have intervened and directed that he receive

appropriate care once they were put on notice through his grievances that his

medical care was inadequate. While Plaintiff asserts these Defendants were

advised through his grievances about his need for medical care,11 only

Defendant Jeffcoat responded to Plaintiff’s medical grievances, and some of the

grievances that Defendant Reddish responded to relating to Plaintiff’s alleged

abuse included allegations regarding inadequate medical care. See Doc. 163-24

at 18-22, 25-28, 35-36, 43-52, 59-60.12 Defendant McNeil avers that “[a]s the

Secretary of the Florida Department of Corrections, I did not respond to

grievances. There is an office in the Department that is tasked with responding

to grievances. The person that reviewed the grievance signs the grievances. If I

11 Plaintiff testified at deposition that he never spoke to Defendant McNeil, but

he had conversations with Defendants Reddish, Whitehead, and Jeffcoat about

his claims. See Doc. 163-22 at 14-18. It is unclear which Defendants he spoke

to about which claims. See id. When asked how Defendants were aware of his

lack of adequate medical care, he said through his grievances. Id. at 20.

12 As discussed in more detail below, the grievances reviewed by Defendant

Reddish were forwarded to the Office of the Inspector General for appropriate

action.

had reviewed or responded to this inmate’s grievances, the grievance would

bare my signature.” Doc. 163-11 at 1.

Insofar as Plaintiff argues that Defendants should be deemed to have

subjective knowledge simply because Plaintiff directed grievances to them or

their respective offices, this argument, without more, is insufficient to defeat

summary judgment. There is no indication that Defendant McNeil had any

knowledge of Plaintiff’s complaints about his medical care, and the grievances

that Defendant Reddish responded to largely focused on alleged abuse—not on

medical care. Regardless, as explained herein, the supervisory Defendants are

entitled to rely on the medical decisions and expertise of medical staff. See Keith

v. DeKalb Cty., Ga., 749 F.3d 1034, 1050 (11th Cir. 2014) (stating that “the law

does not require that [the] Sheriff . . . ignore the determination and

recommendation of” medical staff); Williams v. Limestone Cty., Ala., 198 F.

App’x 893, 897 (11th Cir. 2006) (“[S]upervisory officials are entitled to rely on

medical judgments made by medical professionals responsible for prisoner

care.”).

The grievance responses signed by Defendant Jeffcoat were also signed

by the Chief Health Officer. See Doc. 163-24 at 29 (April 7, 2010; “Review of

your medical record shows you have a scheduled appointment for physical

therapy in the near future. We had to wait for the approval before scheduling.”);

Doc. 163-24 at 65 (April 26, 2010; “Review of your record shows that you have

been refusing some of your treatment and there is no evidence that you have

been denied treatment. . . . Since inmates do not choose their therapist your

request for another therapist is denied.”); Doc. 163-24 at 73 (April 29, 2010;

“Review of your medical record shows you are not being denied treatment. Your

request to change counselors is denied.”); Doc. 163-23 at 1 (May 6, 2010; “Review

of your medical record shows you have been seen on numerous occasions in sick

call for these complaints, referred to the doctor and seen by the doctor. You

continue under the care of the specialist for these issues. Ms. Gaskins denies

your allegations, has seen you on sick call and referred you to the doctor. On

April 13, 2010 when Ms. Gaskins attempted to see you for a medical emergency,

documentation shows you refused to be seen by her.”); Doc. 163-23 at 5 (June

29, 2010; “Review of your medical record shows a refusal for sick call on May

24, 2010. The nurse denies your allegations. It is noted you were seen on sick

call on June 7, 2010 for the same complaint. Your thumb X-Rays were normal.

You refused your labs. You have a GI X-Ray pending. Your chart was referred

to the doctor and you have an appointment pending in the near future.”); Doc.

163-24 at 37 (June 29, 2010; “Review of your medical record shows a note from

the nurse on June 2, 2010 where you told her you wanted her to refer you to a

doctor at RMC. After being told the doctor here would have to do the referral,

you informed her you were ‘seeing one this month and didn’t need to see her.’

The nurse denies your allegations. You were seen by the doctor on May 24, 2010

for the medical issues. You refused your lab tests and have a GI series

scheduled.”). Plaintiff was repeatedly advised that he was receiving appropriate

medical care. See id.; see also Doc. 163-24 at 23 (August 3, 2010; “It is the

responsibility of your Chief Health Officer to determine the appropriate

treatment regimen for the condition you are experiencing. Records reviewed

indicate that you were seen by the Orthopedist on 4/27/10 and recommended

for physical therapy. Physical therapy was started on 4/30/10 however it was

discontinued after your refusal on 6/24/10. Please be advised that when an

inmate refuses treatment, he/she must take on some of the responsibility for

any adverse effects that may occur.”); Doc. 163-24 at 85 (August 3, 2010); Doc.

163-24 at 69 (October 10, 2010 response signed by a different CHO, stating

“Your medical record has been reviewed and your complaint considered. The

ARNP who examined you on 10/4/10 determined through her evaluation that

you did not need a front cuff pass. She did offer you a double behind the back

pass which you refused. The ARNP also advised you that you could get Tylenol

and Ibuprofen from your dorm officers.”). Plaintiff has not shown that his

medical condition was so dire that it would have been obvious to any nonmedical

official. There were various layers of review of Plaintiff’s complaints and

multiple individuals involved in Plaintiff’s medical care. It cannot be said based

on this record that Defendants McNeil, Reddish, or Jeffcoat knew of

unconstitutional conduct and failed to act or otherwise acted with deliberate

indifference to Plaintiff’s rights.

Moreover, Plaintiff has not shown that the supervisory Defendants were

responsible for a policy of failing to provide appropriate medical care or were

aware of widespread, obvious issues with inmates not receiving appropriate

medical care. Plaintiff’s conclusory assertions are insufficient to defeat

summary judgment. There is no causal connection between any of the

supervisory Defendants and any violation of Plaintiff’s rights based on his

medical care or treatment. Thus, Defendants are entitled to summary judgment

on Count XII.13

ii. Count XIII

Count XIII claims that Defendants McNeil, Reddish, Whitehead, and

Jeffcoat are liable for the acts of excessive force by the subordinate Defendants

and other correctional officers not named as defendants, and they were

13 Even more,  “‘there can be no supervisory liability . . . if there was no

underlying constitutional violation.” Green v. Hooks, No. 17-11785, 2020 WL

57329, at *13 (11th Cir. Jan. 6, 2020) (quoting Paez v. Mulvey, 915 F.3d 1276,

1291 (11th Cir. 2019)). The Court has found that Defendants Gaskins and

Swain were not deliberately indifferent to Plaintiff’s serious medical needs. The

only claim remaining that involves Plaintiff’s medical care and treatment is

against Defendant Fleming (Count II) for allegedly failing to take Plaintiff to

obtain medical treatment after the alleged March 15, 2010 use of force. Even if

proven, one incident of misconduct would not subject the supervisory

Defendants to liability.

deliberately indifferent in the supervision and retention of those individuals

“and in the acquiescence to those officers’ acts of excessive force.” Doc. 82 at 46.

Plaintiff asserts that Defendants “McNeil, Reddish, Whitehead, and Jeffcoat

were aware of a history of widespread abuse of inmates at” UCI and they “failed

to discipline officers who physically abused inmates or failed to discipline

officers who stood by watching other officers physically abuse inmates.” Id. at

47; see Doc. 202-1 at 25-26 (Plaintiff averring in his Affidavit that the

supervisory Defendants “received notice of prison officials[’] abuse towards

inmates at [UCI] by and through incident reports, abuse of force reports, inmate

grievances, inmate letters, civilian letters, inspector reports and findings,

government agency letters including the Court letters and orders, audit team

reports, and other documents,” but “they failed to take corrective steps to stop

it before and or after the incidents in question”). He further claims that they

were aware of the threats against him prior to the uses of force. Doc. 82 at 47-

50; see Doc. 202-1 at 25-26. Plaintiff argues in response to the Motion that he

“pled that Defendants Reddish, McNeil, Whitehead, and Jeffcoat had or

maintained a custom or policy at [UCI] of the code of silence and non-

interference with physical abuse of inmates.” Doc. 202 at 28-29. To prove this

policy or custom, he relies on his own allegations, stating that officers stood by

while he was subjected to excessive force and the officers failed to intervene.

See id. at 29.

Defendants Jeffcoat, Reddish, and McNeil filed Declarations.14 Defendant

Jeffcoat avers that she “never witnessed, nor condoned the abuse, of any kind,

of Inmate Milledge by any of . . . the corrections officers named in this law suit[,

n]or was [she] made aware of such abuse through the grievance process.” Doc.

163-6 at 1. She further states that she is “not aware of any ‘long-standing

custom or policy at [UCI] of the code of silence and non-interference with

physical abuse of inmates.’” Id. at 2. Defendant Reddish’s Declaration is nearly

identical to Defendant Jeffcoat’s Declaration. See Doc. 163-13. Similarly,

Defendant McNeil asserts that, as the Secretary, he did not respond to

grievances and he “was not aware of a pattern or practice of abuse of prisoners

at [UCI] nor would such a pattern or practice [be] condoned by [him].” Doc. 163-

11 at 1-2.

Plaintiff stated at his deposition that “none of the officers in [his] case got

disciplined . . . by the top officials.” Doc. 163-22 at 25. Plaintiff essentially tries

to pin supervisory liability on Defendants McNeil, Reddish, Jeffcoat, and

Whitehead because they did not discipline the officers who allegedly assaulted

him. He also testified that “inmates was constantly getting beat up there,” and

14 Although Defendants’ Index to Exhibits identifies “Declaration of Defendant

Whitehead” as Exhibit S, Doc. 163 at 22, Defendants did not file Defendant

Whitehead’s declaration.

“officers getting fired left and right,” so he apparently assumes that this all

amounts to widespread abuse for which Defendants should have known. Id.

Plaintiff has failed to present any evidence showing that the supervisory

Defendants failed to supervise or discipline officers, that they were deliberately

indifferent to a substantial risk of harm, that they were aware of a history of

widespread abuse and failed to take measures to correct it, or that they had or

maintained a policy or custom that resulted in deliberate indifference to

Plaintiff’s rights. Defendants McNeil, Whitehead, and Jeffcoat did not respond

to any of Plaintiff’s grievances relating to the alleged abuse. Insofar as Plaintiff

contends that because he submitted grievances to the supervisory Defendants’

offices, there is “a plausible basis to infer” that they would “review [a] grievance

that is filed and stored at their office,” Doc. 202 at 25-26, plausibility and

speculation are insufficient to overcome summary judgment. See Shiver, 549

F.3d at 1343 (“Speculation does not create a genuine issue of fact.” (quotations

and citation omitted)). He has not supported his conclusory assertions.

Defendant Reddish responded to some of Plaintiff’s grievances regarding

Plaintiff’s complaints relating to the alleged abuse, and the grievances were

submitted to the Office of the Inspector General for appropriate action.15

15 See Doc. 163-24 at 25 (March 30, 2010 grievance response signed by

Defendant Reddish, advising that Plaintiff’s complaints regarding the incident

on March 15, 2010 with inmate Willis, which forms the basis of Counts I and II,

had been referred to the IG for appropriate action); Doc. 202-7 at 4 (March 30,

Plaintiff has failed to present any evidence suggesting that Defendant Reddish’s

actions of referring his grievances to the IG’s office was unreasonable or that he

should have done more. Additionally, Plaintiff does not allege or show that any

of the investigations resulted in a finding that the officers’ actions were

unjustified. Indeed, the IG report based on the May 26, 2010 uses of force shows

that Plaintiff’s allegations were “not supported by the evidence reviewed and

therefore [were] not substantiated.” Doc. 163-26 at 5. Moreover, during

discovery, at Plaintiff’s request, the Court ordered Defendants to produce any

2010 grievance response signed by Defendant Reddish, advising that Plaintiff’s

complaints of excessive force and failure to intervene against Defendants

Fleming, Canida, and Lee (Count III) had been reported to the IG for

appropriate action); Doc. 163-24 at 59 (April 2, 2010 grievance response signed

by Defendant Reddish, advising Plaintiff that his allegations that on April 1,

2010, Defendant Gaskins refused to give him a sick call slip and threatened him

by saying Defendant Swain would beat him (part of Count VII) were referred to

the IG for appropriate action); Doc. 163-24 at 61 (April 2, 2010 grievance

response signed by Defendant Reddish, advising Plaintiff that his allegations

that Defendant Swain threatened him on April 1, 2010 were referred to the IG

for appropriate action); Doc. 163-24 at 18 (April 14, 2010 grievance response

signed by Defendant Reddish, advising that Plaintiff’s complaints regarding the

uses of force on April 1, 2010 had been referred to the IG for appropriate action

(the allegations in this grievance relate to Count IV against Defendant Swain

for failing to intervene)); Doc. 202-10 at 3 (April 28, 2010 grievance response

signed by Defendant Reddish, advising that Plaintiff’s complaints about

Defendant Swain threatening him on April 2, 2010 were referred to the IG for

appropriate action); Doc. 163-24 at 43 (June 4, 2010 grievance response signed

by Defendant Reddish, advising Plaintiff that his allegations regarding the use

of force on May 26, 2010 “w[ere] previously reported” to the IG (Count VIII));

Doc. 163-24 at 35 (June 6, 2011 grievance response signed by Defendant

Reddish, advising Plaintiff that his allegations of force, including those against

Defendant Harris (Count XI), were referred to the IG for appropriate action).

disciplinary files concerning allegations of excessive force or failure to intervene

for Defendants Fleming, Canida, Swain, Jenkins, Walden, Kelly, Walker,

Harris, Maginnis, Bullard, Slocum, McFarland, Norman, Lee, Salle, and

Gaskins for the five-year period preceding the dates of the alleged incidents

sued upon. Doc. 172 at 2-3. Defendants acknowledged that there were

responsive documents as to one Defendant, Doc. 188 at 2, and those documents

were provided for Plaintiff’s review on September 13, 2019, Doc. 189 at 2. The

responsive documents related to Defendant Bullard. See Doc. 189-1.16 Other

than Plaintiff’s conclusory allegations, there is nothing to suggest that the

Defendants or other correctional officers had a history of using excessive force,

such that the supervisory Defendants should have taken additional action.

Moreover, at deposition, Plaintiff testified that there is no written policy,

but an officer who stood by watching an inmate be abused was demonstrating

the policy. Doc. 163-22 at 22-23 (“I don’t got to have no written document saying

that. Because, based on that, if officer stand by and watch another officer beat

an inmate, that’s a code of silence. That’s unwritten policy.”). Plaintiff has not

provided any factual detail about other inmates being subjected to abuse or

documentary evidence to support his conclusory assertions that the abuse was

widespread. He also has not presented evidence upon which a reasonable jury

16 The Court has not been provided with the responsive documents.

could conclude that there is a causal connection between the actions of the

supervisory Defendants and the alleged constitutional deprivations. Thus,

Defendants are entitled to summary judgment on Count XIII.

iii. Count XIV

Count XIV claims that Defendants McNeil, Reddish, Whitehead, and

Jeffcoat were deliberately indifferent to a substantial risk of harm to Plaintiff

in that they failed to protect Plaintiff from Defendants Fleming, Canida, Lee,

and Swain. Doc. 82 at 50-53; see also Doc. 202 at 14, 19-20. He asserts that a

reasonable jury could find that the supervisory Defendants “had knowledge that

Plaintiff faced a risk of serious harm from either Defendants Fleming, Canida,

Swain, Lee, and other prison officials and disregarded that risk by failing to

take reasonable measures to abate it.” Doc. 202 at 22. He argues that they

received knowledge through the grievances he directed to them. See Doc. 202 at

15-20.

Defendants argue that they cannot be held liable based on grievances

alone. The Court agrees that Plaintiff has failed to present any evidence to show

a causal connection between these Defendants and a violation of his

constitutional rights. Plaintiff has not offered evidence to support his contention

that these Defendants had notice of a history of widespread abuse or that there

was a policy, custom, or practice that resulted in a constitutional violation. He

has not shown that these Defendants directed the subordinate Defendants to

act unlawfully or that they knew the subordinate Defendants would act

unlawfully and failed to take any action.17 His own grievances about his own

alleged abuse is insufficient, especially when the record shows that the only

supervisory Defendant who responded to the grievances about the alleged abuse

and threats was Defendant Reddish, and Plaintiff’s complaints were referred to

the IG for appropriate action. Even assuming that the supervisory Defendants

were “aware of facts from which the inference could be drawn that a substantial

risk of serious harm exists,” there is nothing to suggest that they “also dr[e]w

the inference.” Rodriguez v. Sec’y for Dep’t of Corr., 508 F.3d 611, 617 (11th Cir.

2007) (quotations and citation omitted). Even more, “an official’s failure to

alleviate a significant risk that he should have perceived but did not, while no

cause for commendation, cannot . . . be condemned as the infliction of

punishment.” Farmer v. Brennan, 511 U.S. 825, 838 (1994). In sum, Plaintiff

has failed to demonstrate the requisite causal connection to meet the rigorous

standard for supervisory liability, and Defendants are entitled to summary

judgment on Count XIV.

17 As previously noted, in the five years preceding the incidents alleged in this

case, the only Defendant to have a disciplinary history with respect to excessive

force or failure to intervene was Defendant Bullard.

E. Threats by Staff

Without pointing to any specific allegations or claims, Defendants argue

that “[t]he fact that Plaintiff was only threatened with future conduct is

insufficient to state a claim under § 1983.” Doc. 163 at 13. The Court declines

to guess which claims and Defendants this argument is aimed. The Motion is

denied in this regard.

F. De Minimis Injury – Compensatory and Punitive

Damages

According to Plaintiff, after Defendants Canida, Fleming, and Lee failed

to protect and/or intervene when Plaintiff was being assaulted by another

inmate, Plaintiff’s nose was bleeding and he had “agonizing pain in his back.”

Doc. 82 at 8; see id. at 9 (“Plaintiff suffered injuries to his shoulders and back

and had a laceration on the top and underneath his nose area.”). As a result of

Defendant Fleming punching Plaintiff in the stomach on March 25, 2010, he

suffered injuries to his back, and he had “agonizing pain in his stomach for

approximately one (1) week.” Doc. 82 at 10-11. The April 1, 2010 uses of force

(chemical and physical) caused Plaintiff to suffer “injuries to his shoulders,

back, eyes, left thumb, and knee, and [he] also suffered from breathing problems

and chest pain and [he] had a laceration to his left thumb,” which was “swollen

for approximately two (2) weeks.” Id. at 15. According to Plaintiff, the May 7,

2010, unnecessary use of force caused injuries to his shoulders and back,

bruised marks on his chest, and a laceration on his ankle. Id. at 20. He

complained about breathing problems, a rash, and pain in his eyes, neck,

shoulder, and back on May 23, 2010. Id. at 21-22. The May 26, 2010, uses of

force resulted in injuries to Plaintiff’s “head, shoulders, eyes, and back, and [he]

had bruised marks to his chest area and both arm areas. [His] right eye was

also bruised and swollen for approximately (2) weeks.” Id. at 27. As a result of

“the attack” on June 10, 2010, “Plaintiff suffered injuries to his head, eyes, ribs,

shoulders, knee, back, and ankle, and had a laceration to his knee area.

Plaintiff’s right eye was also bruised and swollen for approximately two (2)

weeks.” Id. at 33. The following day, June 11, 2010, Plaintiff was subjected to

physical force and suffered “injuries to his right shoulder, right bending arm,

and right pinky finger.” Id. at 35. The use of force on May 16, 2011, resulted in

“injuries to [Plaintiff’s] neck, shoulders, and back and [he] also had bruised

marks to his chest area.” Id. at 36.

In the Motion, Defendants assert that “Plaintiff’s injuries described in the

complaint are not greater than de minimis.” Doc. 163 at 13. They contend that

Plaintiff admitted at deposition that his “injuries were old injuries that were

aggravated,”18 and they argue that his claims for compensatory and punitive

damages should be dismissed. Id. at 14.

18 Plaintiff was asked at his deposition, “So all the injuries that you listed were

pre-existing injuries that have been aggravated based on this alleged abuse?”

Plaintiff contends in his Response that as a result of the uses of excessive

force, which included being “beat[en] or kicked,” and “choked or knocked

unconscious,” he “sustained either lacerations, bruises, swelling to face, black

eye, head injury, eyes injury, right shoulder injury, right joint injury, left thumb

injury, and back injury.” Doc. 202 at 37. He claims that he sought medical

treatment for those injuries, and he continued to seek “medical attention for his

head injury, eyes injury, right shoulder injury, and back injury which is causing

him excruciating pain on a daily basis.” Id.

“The [Prison Litigation Reform Act (PLRA)] places substantial

restrictions on the judicial relief that prisoners can seek, with the goal of

‘reduc[ing] the number of frivolous cases filed by imprisoned plaintiffs, who

have little to lose and excessive amounts of free time with which to pursue their

complaints.’” Brooks v. Warden, 800 F.3d 1295, 1307 (11th Cir. 2015) (quoting

Al-Amin v. Smith, 637 F.3d 1192, 1195 (11th Cir. 2011)). Section 1997e(e) of the

PLRA provides: “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.” 42 U.S.C.

Doc. 163-22 at 11. He responded, “Yes.” Id. In his Affidavit, he states: “Notably,

I made a mistake by agreeing that all my injuries are pre-existing injuries. I’m

clarifying my statement to say that my shoulders, ribs, and back are the only

pre-existing injuries.” Doc. 202-1 at 22.

§ 1997e(e). “Tracking the language of the statute, § 1997e(e) applies only to

lawsuits involving (1) Federal civil actions (2) brought by a prisoner (3) for

mental or emotional injury (4) suffered while in custody.” Napier v. Preslicka,

314 F.3d 528, 532 (11th Cir. 2002). The statute does not define “physical injury,”

but the Eleventh Circuit has clarified that, “in order to satisfy section 1997e(e),

the physical injury must be more than de minimis, but need not be significant.”

Harris v. Garner, 190 F.3d 1279, 1286 (11th Cir.1999), reh’g en banc granted

and opinion vacated, 197 F.3d 1059 (11th Cir.1999), opinion reinstated in

relevant part, 216 F.3d 970, 972 (11th Cir. 2000). While compensatory and

punitive damages are precluded in the absence of a more than de minimis

physical injury, “nominal damages may still be recoverable.” Al-Amin, 637 F.3d

at 1198.

The only medical records submitted by Defendants are the post-use-of-

force examination notes dated May 26, 2010, and June 10, 2010. Defendants

rely on the allegations in the Second Amended Complaint and Plaintiff’s

admission at his deposition that his injuries were pre-existing injuries that

were aggravated by Defendants’ actions and inactions. See Doc. 163 at 13-15.

That Plaintiff may have worsened his pre-existing injuries does not necessarily

mean the injuries are de minimis. On this record, the Motion will be denied to

the extent Defendants seek to limit Plaintiff’s damages.

G. Nominal Damages

Defendants assert that Plaintiff did not request nominal damages. Doc.

163 at 15-16. However, as Defendants acknowledge, the Eleventh Circuit has

determined that a plaintiff sought nominal damages when his complaint

requested compensatory damages and any other relief the court deems

appropriate. See id. at 16 (citing Boxer X v. Donald, 169 F. App’x 555, 559 (11th

Cir. 2006)). In the Second Amended Complaint, Plaintiff specifically requests

“[a]ny additional relief this Court deems just, proper, and equitable.” Doc. 82 at

54. Thus, Defendants’ Motion is due to be denied in this regard.

H. Eleventh Amendment Immunity

Defendants assert they are entitled to Eleventh Amendment immunity

from suit in their official capacities. See Doc. 163 at 16-17. Plaintiff responds by

arguing that he sued each defendant in his/her individual capacity, and thus

the Eleventh Amendment does not apply. Doc. 202 at 47; see Doc. 82 at 2-5.

Therefore, Defendants’ Motion will be denied because Plaintiff does not sue

Defendants in their official capacities.

I. Qualified Immunity

Defendants address the law governing qualified immunity and conclude

that they “are entitled to qualified immunity because their actions were

objectively reasonable in the performance of their duties and the Defendants

did not violate Plaintiff’s constitutional rights.” Id. at 19. Given Defendants’

failure to identify the claims to which they believe they are entitled to qualified

immunity, the Court denies the Motion in this regard.

J. Severance for Trial

Defendants request that the Court sever “for trial the Defendants[’] acts

of alleged excessive force,” because “Plaintiff has clearly joined parties

improperly in this action.” Doc. 163 at 19.

Rule 20(a), Federal Rules of Civil Procedure, provides in pertinent part:

Persons . . . may be joined in one action as defendants

if:

(A) any right to relief is asserted against them jointly,

severally, or in the alternative with respect to or

arising out of the same transaction, occurrence, or

series of transactions or occurrences; and

(B) any question of law or fact common to all

defendants will arise in the action.

Fed. R. Civ. P. 20(a)(2). Once a defendant is joined, a plaintiff “may join, as

independent or alternative claims, as many claims as it has against an opposing

party.” Fed. R. Civ. P. 18(a).

Joinder is strongly encouraged and the rules are

construed generously toward entertaining the

broadest possible scope of action consistent with

fairness to the parties. However, district courts have

broad discretion to join parties or not and that decision

will not be overturned as long as it falls within the

district court’s range of choices.

Vanover v. NCO Fin. Servs., Inc., 857 F.3d 833, 839 (11th Cir. 2017) (quotations

and citations omitted).

Considering Plaintiff’s allegations on the whole, the Court finds the

remaining claims and Defendants are sufficiently related to proceed in one

lawsuit. Thus, the Defendants’ Motion seeking a severance of Plaintiff’s claims

for trial will be denied.

K. Discovery Issues

Throughout his Response, Plaintiff requests that the Court order the

Defendants and/or the Florida Department of Corrections to file his medical

records and a variety of other documents. Doc. 202 at 12-13, 22-24, 31-33, 43-

45. Plaintiff’s request is due to be denied because it is improper to make

requests for relief in a response. See Fed. R. Civ. P. 7(b)(1) (“A request for a

court order must be made by motion.”). Moreover, Plaintiff was given more than

a reasonable opportunity to review the discovery in this case, and more than

sufficient time to file a response to the Defendants’ Motion for Summary

Judgment. See Orders (Docs. 137, 172, 192, 201).

Accordingly, it is

ORDERED:

1. Defendants’ Motion for Partial Summary Judgment (Doc. 163) is

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

extent that summary judgment is entered in favor of Defendants on Count V,

Count VII, Count XII, Count XIII, Count XIV, and the portion of Count VIII

against Defendant Salle. Judgment to that effect is withheld pending

adjudication of the remainder of the claims. See Fed. R. Civ. P. 54. The Motion

is otherwise DENIED. As Defendants did not move for summary judgment on

the remaining counts, this case will proceed on Counts I-IV, VI, VIII (with the

exception of the failure to intervene claim against Defendant Salle), and IX-XI.

2. Plaintiff’s requests made in his Response (Doc. 202) are DENIED.

3. Plaintiff has another case pending in this Court (case no. 3:17-cv-

483-J-39MCR) that is set for a settlement conference before the Honorable

Monte C. Richardson, United States Magistrate Judge, on April 21, 2020. The

Court requests that the parties engage in good-faith settlement discussions

regarding this case during that settlement conference as well.19

4. Plaintiff is represented by Cindy Laquidara, Esquire in case no.

3:17-cv-483-J-39MCR. The Court finds it appropriate to appoint Ms. Laquidara

for the limited purpose of representing Plaintiff in this case at the settlement

conference.20 Therefore, Plaintiff’s Motion for Appointment of Counsel (Doc.

19 The Court acknowledges that the parties previously attempted to settle this

case in December 2019. See Minute Entry (Doc. 205). The landscape of the case

has now changed as a result of the summary-judgment ruling.

20 Pursuant to the cost reimbursement program, appointed counsel is permitted

to be reimbursed for certain costs incurred during the representation of

Plaintiff. A form explaining allowable costs and the procedure for obtaining

reimbursement is available on the Court’s website: www.flmd.uscourts.gov.

206) is GRANTED to the extent that Ms. Laquidara will also represent

Plaintiff in this case at the upcoming settlement conference. Ms. Laquidara

shall acknowledge this appointment by filing a notice of appearance. The Court

appreciates the services of appointed counsel.

5. Counsel for all parties shall review Judge Richardson’s Order

Scheduling the Settlement Conference (Doc. 162), Case No. 3:17-cv-483-J-

39MCR, and ensure compliance with all terms and deadlines.?! Pending the

outcome of the settlement conference, this case is STAYED, and the Clerk shall

administratively close the file.

6. The Clerk shall mail a copy of this Order and Plaintiff's Second

Amended Complaint (Doc. 82) to Ms. Laquidara.

DONE AND ORDERED at Jacksonville, Florida, this 10% day of

February, 2020.

TIMOTHY J. CORRIGAN

United States District Judge

JAX-3 2/10

C:

Honorable Monte C. Richardson

United States Magistrate Judge

Corey Milledge, #Q12023

Counsel of Record

Cindy Laquidara, Esquire

21 The Clerk will provide Defendants’ counsel with a copy of Judge Richardson’s

Order.

AO