Dyal v. Jeffcoat

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

CHRISTOPHER DYAL,

Petitioner,

vs. Case No.: 3:17-cv-1284-J-32JBT

C.O. CARDIGAN, et al.,

Respondents.

/

ORDER

I. Status

Plaintiff Christopher Dyal, a pro se inmate in the custody of the Florida

Department of Corrections (FDOC), is proceeding on an amended civil rights

complaint under 42 U.S.C. § 1983. (Doc. 9). Plaintiff sues two correctional

officers at Putnam Correctional Institution (Putnam C.I.) in their individual

capacities, Charles Cardigan, Jr., and Thomas Oliver. Doc. 9 at 2.1 Plaintiff

raises seven claims, which arise from the repainting of Plaintiff’s dormitory in

March 2017, Plaintiff’s filing of grievances about the repainting, and

subsequent events that were allegedly in retaliation for the grievances.2

1 Plaintiff also sued one “unknown official,” but the Court dismissed the

claims against that person on July 12, 2019. (Doc. 68).

2 In Claims 1 and 2, Plaintiff alleges that Officer Cardigan was deliberately

indifferent to his safety while repainting the ceiling in Plaintiff’s dormitory. In

Claims 3 and 4, Plaintiff alleges that Officer Cardigan retaliated against him

This case is before the Court on Defendants’ Motion for Summary

Judgment (Doc. 56) and attached exhibits (Docs. 56-1 through 56-9). After

receiving two opportunities to amend his response, Plaintiff filed a Second

Amended Response in opposition to the Motion (Doc. 80), along with his own

exhibits (Doc. 80-1 through 80-7). Thus, the Motion is ripe for a decision.

II. Summary Judgment Standard

“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.” 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 inferences

for filing a grievance about the repainting by transferring him to another

prison. In Claim 5, Plaintiff alleges that Officer Oliver searched his cell and

confiscated his property, also in retaliation for filing grievances. In Claims 6

and 7, Plaintiff alleges that Officer Cardigan’s conduct during the repainting

violated the Florida fire prevention code, § 633.206, Fla. Stat., and the federal

Clean Air Act, 42 U.S.C. § 7401, et seq., respectively.

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[ ] – that is,

point[ ] out to the district court – that there is an absence of evidence to support

the nonmoving party’s case.’” Gonzalez v. Lee Cnty. 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 this case is before the Court on Defendants’ Motion for Summary

Judgment, the Court construes the facts in the light most favorable to Plaintiff.

Hornsby-Culpepper, 906 F.3d at 1311. Plaintiff’s Amended Complaint and

Second Amended Response are not a model of clarity. See Doc. 9, Doc. 80.

However, because Plaintiff is pro se, the Court construes his pleadings liberally.

See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).

A. Claims 1 and 2: Deliberate Indifference to Inmate Safety

Plaintiff alleges that Officer Cardigan was deliberately indifferent to his

safety while repainting the F1 Dormitory at Putnam C.I., where Plaintiff

resided. Doc. 9 at 14-15. On March 2, March 7, and March 8, 2017, Officer

Cardigan repainted the ceiling while Plaintiff occupied the dormitory. Id. at 14.

To do so, Officer Cardigan used an industrial paint sprayer powered by an air

compressor. Id. The paint “had toxic fumes on the side of the can,” including

ethylbenzene, which is a possible carcinogen. Id. Plaintiff was not given safety

equipment to prevent him from inhaling or otherwise having contact with the

fumes. See id. Plaintiff states that he verbally informed Officer Cardigan “that

his actions were a threat to health [and] future health,” id., but he does not

identify what specific health threats he informed Officer Cardigan about.

Plaintiff filed a grievance about the incident on March 20, 2017, “and provided

officials with Florida fire prevention codes.” Id. at 15.

On March 21, March 22, and March 23, 2017, Officer Cardigan returned

to F1 Dormitory to continue repainting the ceiling. According to Plaintiff, this

was “[a]fter the officials were provided with information that would have shown

violations, constituteing [sic] deliberate indifference.” Id. at 15. Plaintiff

generally alleges that Officer Cardigan “creat[ed] a significant hardship that

changed the normal activities of prison life for the plaintiff,” and that Officer

Cardigan “failed to protect the plaintiff from [a] health risk, with full knowledge

of the safety issues in his actions.” Id.3

To support his allegation that Officer Cardigan knew the paint fumes

were toxic, he attached a Material Safety Data Sheet (“MSDS”) to the Amended

Complaint and the Second Amended Response. Doc. 9-4 (Am. Compl. Ex. 4);

Doc. 80-4 (Pl. S.J. Ex. 4).4 The MSDS contains information about the contents

of the paint, recommended precautions, and potential health hazards. Plaintiff

specifically cites Sections 8 and 11 of the MSDS. Doc. 9 at 14-15. Section 8 sets

forth the “precautions to be taken in use,” which include adequate ventilation,

avoidance of breathing in vapor or spray mist, washing hands after use, and

“[i]f personal exposure cannot be controlled below applicable limits by

ventilation, wear[ing] a properly fitted organic vapor/ particulate respirator.”

Doc. 80-4 at § 8. Section 11 sets forth “chronic health hazards”:

Reports have associated repeated and prolonged overexposure to

solvents with permanent brain and nervous system damage.

Ethylbenzene is classified by IARC[5] as possibly carcinogenic to

humans (2B) based on inadequate evidence in humans and

sufficient evidence in laboratory animals. Lifetime inhalation

exposure of rats and mice to high ethylbenzene concentrations

resulted in increases in certain types of cancer, including kidney

tumors in rats and lung and liver tumors in mice. These effects were

not observed in animals exposed to lower concentrations. There is

no evidence that ethylbenzene causes cancer in humans.

3 The repainting on March 2, 7, and 8, 2017, forms the basis for Claim 1.

The repainting on March 21-23, 2017, forms the basis for Claim 2.

4 Plaintiff assumes that Officer Cardigan read the MSDS.

5 International Agency for Research on Cancer

IARC’s Monograph No. 93 reports there is sufficient evidence of

carcinogenicity in experimental rats exposed to titanium dioxide

but inadequate evidence for carcinogenicity in humans and has

assigned a Group 2B rating. In addition, the IARC summary

concludes, “No significant exposure to titanium dioxide is thought

to occur during the use of products in which titanium is bound to

other materials, such as paint.”

Id. at § 11 (emphasis added).

Plaintiff alleges that Officer Cardigan’s indifference constituted cruel and

unusual punishment, in violation of the Fifth, Eighth, and Fourteenth

Amendments. Doc. 9 at 14, 15.6 As a result, Plaintiff claims he suffered “a

significant injury to [his] health and future health” because he was exposed “to

toxic fumes that are classified … as a possible carcinogen[ ].” Doc. 9 at 20.

Additionally, he claims he suffered from restricted breathing, skin irritation,

headaches, watery eyes, and uncontrollable sneezing. Id. at 20, 21. In his

deposition, Plaintiff states that he saw medical staff for these ailments, and

that he was treated with nasal spray and Chlorphen. Doc. 56-9 at 43 (Def. S.J.

6 Because Plaintiff was a convicted prisoner in state custody at the time of

the alleged violation, his claim arises under the Eighth Amendment, not the

generalized concepts of due process encompassed by the Fifth or Fourteenth

Amendments. See Graham v. Connor, 490 U.S. 386, 395 n.10 (1989) (“Any

protection that ‘substantive due process’ affords convicted prisoners against

excessive force is, ... at best redundant of that provided by the Eighth

Amendment.”). “Where a particular Amendment ‘provides an explicit textual

source of constitutional protection’ against a particular sort of government

behavior, ‘that Amendment, not the more generalized notion of “substantive due

process,” must be the guide for analyzing these claims.’” Albright v. Oliver, 510

U.S. 266, 273 (1994) (quoting Graham, 490 U.S. at 395).

Ex. F, Plaintiff’s Deposition).7 Based on Claims 1 and 2, Plaintiff seeks $100,000

in compensatory damages, $150,000 in punitive damages, and nominal

damages “per the expert opinion of this honorable court.” Doc. 9 at 25.

Officer Cardigan submitted a declaration in support of summary

judgment. Doc. 56-2 (Def. S.J. Ex. B, Cardigan Declaration). Officer Cardigan

states in relevant part:

3. During the month of March 2017, I was tasked with painting

the ceiling of F Dorm at Putnam Correctional Institution. The

painting was conducted while inmates were at recreation and

began by first setting up the dorm in a manner which was

intended to protect inmate property. In doing so, the inmates

were given the choice to leave the dorm while the painting

was conducted by attending recreation, and once all inmates

who chose to leave were gone, I moved the beds in the dorm

to the side of the dorm, and placed old sheets on the floor to

cover the floor. I then had orderlies and myself utilize a power

sprayer to paint the ceiling. Any excess overspray was cleared

up with paint thinner, and the power sprayer was cleaned

outside with paint thinner. During the spraying process, the

orderlies which are assisting in the painting are given

respirators and eye protection to wear while spraying. The

painting process was conducted for a period of one, at times,

maybe two hours daily. The painting of the dorms was a

regular occurrence and was not out of the ordinary as

periodically the paint within the dorms and institution would

fade due to normal wear and tear.

4. Sometime during the month of March 2017, while I was

performing my duties of painting the ceiling of F Dorm,

Plaintiff approached me and complained of issues related to

the smell of the paint. Based on Plaintiff’s complaints, I spoke

with Assistant Warden Godwin and Major Mercado about the

complaints. Based on that conversation, I was instructed to

finish my responsibility for the day. However, the next day, I

7 Chlorphen is an antihistamine.

was instructed by Major Mercado to stop painting. I did not

paint after I was instructed to stop.

5. At no point during March 2017 did I act in a manner which I

believe placed the safety of inmates, officers, or volunteers

within F Dorm at risk. I did not intend to harm anyone and

believed that painting in the manner I did was the safest

means of performing my required duties. I attempted to act

in a manner which protected all individuals and their

property.

Doc. 56-2 at ¶¶ 3-5.

Additionally, Officer Cardigan points out that according to a grievance

attached to the Amended Complaint, the doors in Plaintiff’s dormitory were

opened to improve ventilation in response to inmates’ concerns. Doc. 56 at 9. In

grievance number 214-1703-0012, Plaintiff complained to the Warden about the

repainting of his dormitory, and alleged that Officer Cardigan threatened him

with “be[ing] locked up and transferred per Asst. Warden Godwin and Major

Mercado” if he filed a grievance. Doc. 9-1 at 25 (Am. Compl. Ex. 1-X). In

response, Warden N. Jeffcoat wrote:

I have personally spoken to other inmates who are housed in F-

Dorm side 1. Those that were interviewed did say that the odor was

unpleasant until the door was opened to all for air circulation, none

had overspray on any of their items, and at no time were they

threatened with being locked up or transfer[red] if they wrote a

grievance or complained. Which is evident, because you have not

been locked up or transferred for grieving this issue multiple times.

Id.8 Based on these facts, Officer Cardigan argues he is entitled to summary

8 The record on summary judgment includes documents attached to the

complaint. Crenshaw v. Lister, 556 F.3d 1283, 1292 (11th Cir. 2009).

judgment because he responded reasonably to any risk of harm. Doc. 56 at 9-

10.

In his Second Amended Response and attached declaration, Plaintiff

denies that Officer Cardigan conducted the repainting while the inmates were

on recreation or that Officer Cardigan gave him the option of leaving the

dormitory. Doc. 80 at 2, 10-11; Doc. 80-5 at ¶ 8. Plaintiff states that the

prisoners’ recreation time did not coincide with the time of day when Officer

Cardigan repainted the dorm. Doc. 80 at 11. And Plaintiff states in his

declaration that “[a]t no time during all these occasions [were] any of the

Inmates housed in this dorm given the opportunity to leave.” Doc. 80-5 at ¶ 8.

However, in his deposition, Plaintiff acknowledged that the painting was begun

while he and other inmates were out at work:

A. Okay. This is what happened. I worked outside grounds.

Q. Okay.

A. We come in from work around 12:30, 1:30, in between that area

every day.

***

A. Okay. When we come in from work, they had all the bunks pulled

off the walls and sheets hanging over the bunks, industrial sprayer

with a 5-gallon bucket of paint with a compressor outside of the

building spraying paint in the dorm….

Doc. 56-9 at 21-22. Plaintiff also admitted that when he and another inmate

confronted Officer Cardigan about the paint fumes, Officer Cardigan responded

that he would “go talk to my bosses about it and see what they say.” Id. at 24.

Thus, Plaintiff corroborates Officer Cardigan’s statement that he relayed

Plaintiff’s concerns about the paint fumes to his superiors. Plaintiff does not

specifically dispute Officer Cardigan’s statement that he ceased painting when

Major Mercado told him to stop, and that he repainted the dorm for no more

than two hours at a time.9 Furthermore, Plaintiff does not deny that prison staff

opened the doors to the F-Dormitory to improve ventilation in response to

inmates’ concerns. Indeed, Plaintiff testified on deposition that staff “open[ed]

the doors and stuff a couple of days later because the inmates kept complaining

about” the odor, and that staff used “mineral spirits” to clean up paint overspray

on the floor. Doc. 56-9 at 23. Finally, Plaintiff himself points out that according

to the medical record, his first complaint about upper respiratory problems was

55 days after his last exposure to the paint fumes. Doc. 80 at 24. Plaintiff

maintains that his symptoms surfaced much earlier, but he does not deny, as a

historical fact, that nearly two months passed before he filed a sick call request

about respiratory issues. Doc. 80 at 24; see also Doc. 80-6 at 19 (Pl. S.J. Ex. 6);

Doc. 9-5 (Am. Compl. Ex. 6) (sick call requests dating back to May 2017).

9 In his declaration, Plaintiff states “that the affidavits and declarations

supplied to this Court in Defendants[’] summary judgment motion are false and

do not reflect the documentary evidence that I have presented to this Court.”

Doc. 80-5 at ¶ 15. However, such a broad, conclusory denial is not enough to

create a genuine dispute of material fact as to each and every statement in the

Defendants’ affidavits. See Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217

(11th Cir. 2000) (conclusory allegations in an affidavit, unsupported by facts,

will not defeat summary judgment).

A dispute of material fact exists about whether Officer Cardigan

conducted the repainting during the inmates’ recreational time and whether

inmates were allowed to leave the dormitory. The Court therefore assumes, for

purposes of summary judgment, that Officer Cardigan did not conduct the

repainting during recreation time and did not allow Plaintiff to leave the

building. However, there is no genuine dispute of material fact about the

following: Officer Cardigan started the repainting process while the inmates

were away from the dorm (albeit for work instead of recreation); when Plaintiff

complained about the paint fumes, Officer Cardigan relayed Plaintiff’s concerns

to his superiors; Officer Cardigan painted for no more than two hours at a time;

Plaintiff did not seek medical attention regarding respiratory issues for nearly

two months; and importantly, Officer Cardigan or other staff opened the doors

to the F dormitory to improve airflow in response to inmates’ complaints.

Construing the facts in Plaintiff’s favor, the Court finds that Officer Cardigan

is entitled to summary judgment based on the uncontested facts.

“The Constitution does not mandate comfortable prisons, but neither does

it permit inhumane ones….” Farmer v. Brennan, 511 U.S. 825, 832 (1994). The

Eleventh Circuit has explained the elements of an Eighth Amendment

violation:

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.[10] 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.[11]

Thomas v. Bryant, 614 F.3d 1288, 1306-07 (11th Cir. 2010). The Eighth

Amendment requires prison officials to “take reasonable measures to guarantee

the safety of the inmates.” Farmer, 511 U.S. at 832 (quoting Hudson v. Palmer,

468 U.S. 517, 526-27 (1984)). However, not every injury a prisoner suffers as a

result of a prison condition necessarily equates to a constitutional violation. See

Goodman v. Kimbrough, 718 F.3d 1325, 1333 (11th Cir. 2013). Only injuries

that occur as a result of a prison official’s deliberate indifference rise to the level

of an Eighth Amendment violation. See Farmer, 511 U.S. at 834.

Recently, the Eleventh Circuit explained the showing required to

demonstrate deliberate indifference to a substantial risk of harm:

To establish a § 1983 claim for deliberate indifference, a plaintiff

must show “(1) a substantial risk of serious harm; (2) the

defendants’ deliberate indifference to that risk; and (3) causation.”

The first element of deliberate indifference—whether there was a

substantial risk of serious harm—is assessed objectively and

requires the plaintiff to show “conditions that were extreme and

posed an unreasonable risk of serious injury to his future health or

safety.” The second element – whether the defendant was

deliberately indifferent to that risk – has both a subjective and an

10 Hudson v. McMillian, 503 U.S. 1 (1992).

11 Wilson v. Seiter, 501 U.S. 294 (1991).

objective component. Subjectively, the “official must both be aware

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

risk of serious harm exists, and ... also draw the inference.”

Objectively, the official must have responded to the known risk in

an unreasonable manner, in that he or she “knew of ways to reduce

the harm” but knowingly or recklessly declined to act. Finally, the

plaintiff must show a “necessary causal link” between the officer’s

failure to act reasonably and the plaintiff’s injury.

Marbury v. Warden, 936 F.3d 1227, 1233 (11th Cir. 2019) (per curiam) (internal

citations and footnotes omitted) (emphasis added).

The Eleventh Circuit has further explained:

Proof of deliberate indifference requires a great deal more than does

proof of negligence: “To be deliberately indifferent a prison official

must know of and disregard ‘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 substantial risk of serious harm

exists, and he must also draw the inference.’” Purcell, 400 F.3d at

1319-20 (emphasis supplied) (quoting Farmer v. Brennan, 511 U.S.

825, 837, 114 S. Ct. 1970, 1979, 128 L.Ed.2d 811 (1994)).[12]

In other words, a plaintiff in [Dyal]’s position must show not only

that there was a substantial risk of serious harm, but also that

[Defendants] “subjectively knew of the substantial risk of serious

harm and that [they] knowingly or recklessly disregarded that

risk.” Hale, 50 F.3d at 1583 (alteration omitted) (internal quotation

marks omitted).[13] Whether prison officials had the requisite

awareness of the risk “is a question of fact subject to demonstration

in the usual ways, including inference from circumstantial

evidence, and a factfinder may conclude that a prison official knew

of a substantial risk from the very fact that the risk was obvious.”

Farmer, 511 U.S. at 842, 114 S. Ct. at 1981 (citation omitted). At

the same time, the deliberate indifference standard – and the

subjective awareness required by it – is far more onerous than

normal tort based standards of conduct sounding in negligence:

12 Purcell ex rel. Estate of Morgan v. Toombs Cty., Ga., 400 F.3d 1313

(11th Cir. 2005).

13 Hale v. Tallapoosa Cnty., 50 F.3d 1579 (11th Cir. 1995).

“Merely negligent failure to protect an inmate from attack does not

justify liability under [§] 1983.” Brown v. Hughes, 894 F.2d 1533,

1537 (11th Cir. 1990) (per curiam). And[,] needless to say, to defeat

a motion for summary judgment, [a 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.” Anderson, 477 U.S. at 252, 106 S. Ct. at 2512.

Goodman, 718 F.3d at 1332 (emphasis deleted); Melton v. Abston, 841 F.3d

1207, 1223 (11th Cir. 2016) (per curiam) (stating that a plaintiff who claims

deliberate indifference must prove: “(1) subjective knowledge of a risk of serious

harm; (2) disregard of that risk; (3) by conduct that is more than mere

negligence”).

Applying these standards to the undisputed facts, Officer Cardigan did

not display deliberate indifference to Plaintiff’s safety during the repainting of

his dormitory. The Court assumes that exposure to paint fumes can present an

actionable risk of harm under the Eighth Amendment. See Helling v.

McKinney, 509 U.S. 25, 33 (1993) (holding that inmate’s exposure to

environmental tobacco smoke from being confined with a five-pack-a-day

smoker was actionable because “the Eighth Amendment protects against future

harm to inmates,” not just threats to current health, when the prison condition

“is sure or very likely to cause serious illness and needless suffering.”). The

Court also assumes that Officer Cardigan was subjectively aware of the risk

posed by paint fumes. However, the facts that are undisputed show that Officer

Cardigan responded reasonably to the risk. First, Officer Cardigan attempted

to mitigate the impact on the inmates by relocating their property and

beginning the repainting process while the inmates were away from the dorm.

Doc. 56-2 at ¶ 3; Doc. 56-9 at 21-22. Although the parties disagree about

whether Officer Cardigan undertook repainting during the inmates’ recreation

time and whether Plaintiff was allowed to leave the dorm, Plaintiff stated in

deposition that repainting was begun while the inmates were out to work. Doc.

56-9 at 21-22. Second, Officer Cardigan limited repainting to no more than two

hours at a time. Doc. 56-2 at ¶ 3. Third, when Plaintiff approached Officer

Cardigan about the paint fumes, Officer Cardigan relayed Plaintiff’s concerns

to his superiors, Assistant Warden Godwin and Major Mercado. Doc. 56-2 at ¶

4. Officer Cardigan continued painting because he was ordered to do so, but

Officer Cardigan ceased painting the next day when Major Mercado told him to

stop. Id. Fourth, Officer Cardigan or other prison staff opened the doors in the

F dormitory to improve ventilation in response to inmates’ complaints about the

odor.14

Officer Cardigan is liable for deliberate indifference only “if ‘he knew of

ways to reduce the harm but knowingly declined to act’ or if ‘he knew of ways

14 It is also worth noting that “[t]he [repainting] of the facility clearly had a

legitimate objective not related to punishment.” Joseph v. Foti, 37 F.3d 632, *3

(5th Cir. 1994) (Unpublished). Officer Cardigan repainted the dorm as part of

routine maintenance, because “periodically the paint within the dorms and

institution would fade due to normal wear and tear.” Doc. 56-2 at ¶ 3. Plaintiff

does not dispute this statement.

to reduce the harm but recklessly declined to act.’” Rodriguez v. Sec’y, Dep’t of

Corr., 508 F.3d 611, 620 (11th Cir. 2007) (quoting Hale, 50 F.3d at 1583). The

facts that are undisputed show that Officer Cardigan had reason to believe that

the responsive measures described above were sufficient to protect inmate

safety. According to the other inmates in F Dorm, “the odor was unpleasant

until the door was opened to all for air circulation,” Doc. 9-1 at 25, reflecting

that improving the airflow in the dorm alleviated the problem. And, none of the

inmates reported having overspray on any of their items. Id.

Moreover, the MSDS on which Plaintiff relies to establish that Officer

Cardigan knew of a substantial risk of harm does not suggest that Officer

Cardigan’s response was unreasonable. The MSDS recommends that those

using the paint wear eye protection, gloves, and a respirator if ventilation is

inadequate to control exposure. Doc. 9-4 at § 8; Doc. 80-4 at § 8. Officer Cardigan

did supply respirators and eye protection to the orderlies who assisted him in

painting, Doc. 56-2 at ¶ 3, but not to Plaintiff. However, Plaintiff was not one of

the workers applying the paint. Additionally, the MSDS advises that general

exhaust ventilation is “acceptable if exposure to materials in Section 2 is

maintained below applicable [OSHA] exposure limits,” and that respiratory

protection is required only “[i]f personal exposure cannot be controlled below

applicable limits by ventilation.” Doc. 80-4 at § 8. Plaintiff submits no evidence

that Officer Cardigan knew whether Plaintiff’s exposure exceeded OSHA

regulations even after opening the doors for ventilation. Thus, Officer Cardigan

could reasonably have believed that his response was adequate. See Moore v.

Faurquire, 595 F. App’x 968, 974 (11th Cir. 2014) (on summary judgment,

affirming that defendants responded reasonably to the risks posed by a lead-

paint removal project, and “even accepting Moore's allegation that during one

week of two months the defendants gave him only a face shield and not a

respirator, he has pointed to no evidence that the defendants were aware that

applying paint stripper for a brief period of only one week without a respirator

posed a substantial risk of serious harm.”) (citation omitted). Indeed, other

inmates reported that the odor abated after the doors to the F Dorm were

opened.

As for long-term health hazards, the MSDS provides that “repeated and

prolonged overexposure to solvents” is associated with neurological damage,

that ethylbenzene is “possibly carcinogenic” in higher concentrations but “no

evidence [exists] that ethylbenzene causes cancer in humans,” and that there is

“inadequate evidence” that titanium dioxide is carcinogenic to humans, since

“‘[n]o significant exposure to titanium dioxide is thought to occur during the use

of products in which titanium dioxide is bound to other materials, such as

paint.’” Doc. 80-4 at § 11 (quoting IARC Monograph No. 93). In short, the MSDS

indicates that the compounds in the paint posed a chronic health hazard only

in high concentrations or with “repeated and prolonged overexposure.” In light

of the information in the MSDS, Officer Cardigan could reasonably have

believed that the mitigation measures he employed were adequate to prevent

any serious risks to Plaintiff’s immediate or long-term health.

Finally, Plaintiff admits that he did not complain of upper respiratory

problems until 55 days after the last exposure to the paint fumes. Doc. 80 at 24.

Had Plaintiff sought or required immediate medical attention, that might have

alerted Officer Cardigan he was not doing enough to minimize Plaintiff’s

exposure. But because Plaintiff waited nearly two months to file a medical

complaint, Officer Cardigan had all the less reason to suspect that Plaintiff was

at immediate risk. See Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (in the

absence of medical proscriptions known to the correctional officer, his decision

to ignore an inmate’s complaints of dizziness and nausea from paint fumes, and

to require the inmate to climb a ladder to continue painting, was nothing more

than mere negligence).

The evidence, construed in the light most favorable to Plaintiff, does not

show that Officer Cardigan knew of other ways to reduce the harm and

knowingly or recklessly declined to act upon them. Marbury, 936 F.3d at 1233;

Rodriguez, 508 F.3d at 620. A prison official is not liable for deliberate

indifference as long as he “responded reasonably to the risk, even if the harm

ultimately was not averted.” Farmer, 511 U.S. at 844. After all, “[a] prison

official’s duty under the Eighth Amendment is to ensure reasonable safety, a

standard that incorporates due regard for prison officials’ unenviable task of

keeping dangerous men in safe custody under humane conditions.” Id. at 844-

45 (emphasis added) (internal quotation marks and citations omitted). The facts

that are not in dispute show that Officer Cardigan took reasonable – even if

imperfect – precautions to ensure the safety of Plaintiff and other inmates

during repainting. Because there is no evidence from which a jury could

conclude that Officer Cardigan disregarded the risk of harm “by conduct that is

more than mere negligence,” Melton, 841 F.3d at 1223, he is entitled to

summary judgment on Plaintiff’s deliberate indifference claims.15

B. Claims 3 and 4: Retaliatory Transfer

In Claims 3 and 4, Plaintiff alleges that Officer Cardigan transferred him

from Putnam C.I. in retaliation for filing grievances about the repainting.16

Plaintiff alleges that on March 7, 2017, Officer Cardigan threatened Plaintiff

that if he complained or wrote a grievance about the repainting of the F1 Dorm,

15 Because the Court already construes the facts in the light most favorable

to Plaintiff, there is no need to address Plaintiff’s spoliation-of-the-evidence

argument regarding video footage of the F Dorm. Doc. 80 at 3-4, 27-28.

16 Claim 3, standing alone, alleges only that Officer Cardigan threatened to

transfer Plaintiff to another prison if he filed a grievance about the repainting.

However, verbal abuse and threats alone do not amount to a constitutional

violation. Hernandez v. Fla. Dep’t of Corr., 281 F. App’x 862, 866 (11th Cir.

2008). In Claim 4, Plaintiff alleges that Officer Cardigan actually carried out

the threat by transferring him to another prison. Because Plaintiff is pro se, the

Court liberally construes Claims 3 and 4 together to plead a claim for retaliatory

transfer.

he “would be locked up or transfer[r]ed.” Doc. 9 at 16. Plaintiff states that he

“was liveing [sic] in fear,” but nevertheless, on March 13, 2017, he filed a

grievance with the Secretary of the FDOC regarding Officer Cardigan’s alleged

threat to transfer him. Id. The record also shows that Plaintiff filed several

other grievances and administrative appeals about the repainting. Doc. 9-1 at

6-7, 12-14, 18-19, 24-26. On March 30, 2017, Plaintiff was transferred from

Putnam C.I. to Marion C.I. Doc. 9 at 16. According to Plaintiff, an unknown

official initiated or approved the transfer in retaliation for the grievance he filed

with the Secretary of the FDOC. Id. at 16-17. Plaintiff alleges that the transfer

placed a hardship on him because he was subjected to “constant harassment

and [a] change in the normal activities of prison life.” Id. at 17.

Officer Cardigan filed a declaration in support of the Motion for Summary

Judgment. Officer Cardigan states in relevant part:

6. It has come to my attention through the filing of Plaintiff’s

current lawsuit that I am accused of threatening Plaintiff

with retaliation either by transferring him to a different

institution or with discipline for writing grievances. This is

simply not true. I never threatened Plaintiff with any kind of

adverse action. I understand that Plaintiff and other inmates

have the right to file grievances to make complaints about my

or other officers’ behavior and to obtain appropriate relief

when requested. I do not hold it against inmates who file

grievances and recognize that grievances or inmate requests

filed by inmates are part of my job and responsibility as a

corrections officer. I have always treated inmates with the

same degree of respect that I would treat any other individual

with.

7. Further, as it relates to an alleged transfer of Plaintiff, I had

no power to take such an action or even recommend a transfer

of an inmate. I was a corrections officer. If Plaintiff was

transferred to a different institution, it was for reasons that

I am not aware of and have nothing to do with my or

Plaintiff’s interactions during the month of March. The

authority to transfer inmates rests with much higher-

ranking individuals than corrections officers. My

understanding is that wardens, Institutional Classification

Teams, classification officers, and officials within the Central

Office for the Florida Department of Corrections have the

ability to either recommend or actually transfer individuals.

I have and have never had any ability to dictate transfers of

inmates.

Doc. 56-2 at ¶¶ 6, 7 (footnote omitted). Additionally, Officer Cardigan submitted

a record of Plaintiff’s FDOC transfer history, showing that Plaintiff was

transferred at least 15 times between November 25, 2014, and May 12, 2017.

Doc. 56-3 (Def. S.J. Ex. C).

In the Second Amended Response, Plaintiff frames his claim slightly

differently. Plaintiff does not allege that Officer Cardigan directly threatened

to transfer him for filing a grievance. Rather, Plaintiff claims that Officer

Cardigan relayed to him and other inmates “that ‘if you write this up or

complain about this you will be locked up and transferred, per the Assistant

Warden and the Major.’” Doc. 80 at 3 (emphasis added) (citing Doc. 80-3); see

also Doc. 80-5 at ¶ 5. Thus, Plaintiff states that the threat of a transfer

originated from the Assistant Warden and the Major, and that Officer Cardigan

merely communicated the threat. Plaintiff does not deny Officer Cardigan’s

statement that he had no authority to transfer Plaintiff or even to recommend

a transfer. Nor does Plaintiff dispute Officer Cardigan’s statement that

placement decisions “rest[ ] with much higher-ranking individuals than

corrections officers,” such as personnel in the Central Office. Doc. 56-2 at ¶ 7.

“The First Amendment forbids prison officials from retaliating against

prisoners for exercising the right of free speech.” Farrow v. West, 320 F.3d 1235,

1249 (11th Cir. 2003). “While an inmate does not have a constitutionally

protected liberty interest against being transferred to a less agreeable prison,

Moody v. Daggett, 429 U.S. 78, 88 n.9, 97 S. Ct. 274, 279 n.9, 50 L. Ed. 2d 236

(1976), prison officials may not transfer an inmate in retaliation for exercising

his right to file grievances against prison officials.” Williams v. Brown, 347 F.

App’x 429, 435 (11th Cir. 2009) (citing Bridges v. Russell, 757 F.2d 1155, 1157

(11th Cir. 1985)).

To prevail on a retaliation claim, the inmate must establish that:

“(1) his speech was constitutionally protected; (2) the inmate

suffered adverse action such that the [official's] allegedly

retaliatory conduct would likely deter a person of ordinary firmness

from engaging in such speech; and (3) there is a causal relationship

between the retaliatory action [the disciplinary punishment] and

the protected speech [the grievance].”

O'Bryant v. Finch, 637 F.3d 1207, 1212 (11th Cir. 2011) (alterations in original)

(quoting Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008)).

Officer Cardigan argues that Plaintiff cannot meet the second or third

prongs of this test. Doc. 56 at 13. As to the second prong, he argues that despite

Plaintiff “living in fear,” the threat of a transfer did not deter Plaintiff from

filing any grievances. Id. As to the third prong, he argues that Plaintiff cannot

demonstrate a causal relationship between the filing of grievances and the

transfer to Marion C.I., at least as far as Officer Cardigan is concerned. Officer

Cardigan points out that he did not have the ability or authority to transfer an

inmate. Id. at 12, 13.

The Court agrees that Plaintiff cannot satisfy the causation prong.17

Courts have routinely ruled that a corrections officer is not liable for retaliation

where the plaintiff has failed to show that the defendant was responsible for

the retaliatory action alleged. See, e.g., Seibert v. Comm’r, Ga. Dep’t of Corr.,

680 F. App’x 837, 840-41 (11th Cir. 2017) (affirming dismissal of retaliatory

transfer claim against three prison officers where plaintiff failed to allege

sufficient facts showing that the three defendants were responsible for the

transfer); Smith v. Fla. Dep’t of Corr., 318 F. App’x 726, 728 (11th Cir. 2008)

(affirming dismissal of retaliatory transfer claim against a corrections officer

because “Smith has not alleged that Barriner was in any way responsible for

17 The Court disagrees that, because Plaintiff actually filed a grievance, he

cannot meet the second prong of the retaliation test. The second prong is an

objective one, which focuses on whether “the defendant's allegedly retaliatory

conduct would likely deter a person of ordinary firmness from the exercise of

First Amendment rights.” Bennett v. Hendrix, 423 F.3d 1247, 1254 (11th Cir.

2005). It is established that “prison transfers qualify as adverse actions for

purposes of retaliation.” Smith v. Governor of Ala., 562 F. App’x 806, 815 (11th

Cir. 2014) (citations omitted).

the decision to transfer him.”); Jordan v. McCloud, No. CV603–141, 2006 WL

1805847, at *4 (S.D. Ga. Jun. 29, 2006) (recommending that defendants’

motions for summary judgment be granted on retaliatory transfer claim where

“[m]ost of the Movants had no authority to transfer Plaintiff to another facility”

and “Plaintiff has presented no evidence to refute Movants’ assertions.”), report

and recommendation adopted, 2006 WL 2051325 (S.D. Ga. Jul. 20, 2006); cf.

Stallworth v. Wilkins, –– F. App’x ––, 2020 WL 261659, at *3 (11th Cir. Jan. 17,

2020) (inmate adequately pled a retaliation claim where he alleged that the

defendants who gave him contaminated meal trays also had the authority to

place orders with food service and supervised the provision of meal trays).

In response to the Motion for Summary Judgment, Plaintiff does not deny

that Officer Cardigan lacked authority to transfer him to another institution or

even to recommend a transfer. See Doc. 80; Doc. 80-5. Nor does Plaintiff deny

that the decision to transfer an inmate rests with higher-ranking FDOC

officials (none of whom are named as defendants in the Amended Complaint).

While Plaintiff maintains that he was transferred in retaliation for filing

grievances, he offers no evidence that Officer Cardigan was responsible for the

transfer. Therefore, in light of the uncontested facts, Officer Cardigan is

entitled to summary judgment on Plaintiff’s retaliatory transfer claim.18

18 The Amended Complaint does not identify Officer Oliver as a defendant

for purposes of the retaliatory transfer allegations in Claims 3 and 4. If Plaintiff

C. Claim 5: Retaliatory Search and Confiscation of Property

Plaintiff alleges that Officer Oliver searched his cell and confiscated his

property in retaliation for filing grievances. Doc. 9 at 17-18. On March 28, 2017,

Plaintiff was gone for the entire day on a visit to the medical unit. Id. at 17.

Plaintiff alleges that while he was gone, Officer Oliver searched his cell and

seized his personal property, including grievances and legal work. Id. Plaintiff

attached to the Amended Complaint a list of items that he claims were taken,

including a pair of Nike shoes, ear buds, sunglasses, navy mesh shorts, and 200

pages of legal work. Doc. 9-4 at 6 (Am. Compl. Ex. 5). Two days after the cell

search, on March 30, 2017, Plaintiff was transferred to Marion C.I. Doc. 9 at 17-

18. Plaintiff alleges that the search was in retaliation for a grievance he filed

with the Secretary of the FDOC. Id. at 17. Plaintiff does not explain how he

knows or why he believes Officer Oliver was the one who searched his cell, given

that Plaintiff was admittedly absent when the search occurred. Plaintiff also

does not describe how he knows or why believes that Officer Oliver – if he did

conduct the cell search – did so in retaliation for filing a grievance.

Officer Oliver submitted a declaration in support of summary judgment.

Officer Oliver states in pertinent part:

so intended, however, the result would be the same. It is equally uncontested

that Officer Oliver had no authority to make or recommend any transfer

decisions regarding an inmate. Doc. 56-4 at ¶ 5 (Def. S.J. Ex. D, Oliver

Declaration).

3. It has come to my attention that through the filing of

Plaintiff’s current lawsuit that I am accused of improperly

searching Plaintiff’s belongings during the month of March

2017. I do not remember searching Plaintiff’s belongings,

however, if I did in fact conduct a search of Plaintiff’s

belongings, I did so in a manner which was proper an[d]

appropriate. I did not take possession of, damage, or

otherwise destroy Plaintiff’s property. I do not currently have

any of Plaintiff’s property and never took possession of

Plaintiff’s property. It should be noted however, that inmates

are subject to search at any time. See § 33-602.204, Fla.

Admin. Code. See also § 33-602.203, Fla. Admin. Code.

4. It has come to my attention that I am also accused of

threatening Plaintiff with retaliation either by transferring

him to a different institution or with discipline for writing

grievances. This is simply not true. I never threatened

Plaintiff with any kind of adverse action. I understand that

Plaintiff and other inmates have the right to file grievances

to make complaints about my or other officers’ behavior and

to obtain appropriate relief when requested. I do not hold it

against inmates who file grievances and recognize that

grievances or inmate requests filed by inmates are part of my

job and responsibility as a corrections officer. I have always

treated inmates with the same degree of respect that I would

treat any other individual with.

Doc. 56-4 at ¶¶ 3, 4. Officer Oliver argues he is entitled to summary judgment

because “Plaintiff does not allege that Defendant Oliver damaged, destroyed, or

currently possesses Plaintiff’s property. Rather, it appears that Plaintiff

complains about the search conducted by Oliver which allegedly resulted in

Plaintiff’s property being transferred [to Marion C.I.] ahead of Plaintiff.” Doc.

56 at 10.

In his Second Amended Response and attached declaration, Plaintiff

maintains that Officer Oliver searched his cell and took his property in

retaliation for filing a grievance. Doc. 80 at 11-13; Doc. 80-5 at ¶¶ 10, 11.

However, Plaintiff offers only conclusory allegations that Officer Oliver had a

retaliatory motive for doing so. Doc. 80 at 3, 11-13, 16-17, 19-20; Doc. 80-5 at ¶¶

10, 11. Plaintiff refers only to his own grievances and Amended Complaint to

support his allegation of a retaliatory animus.

Attached to the Amended Complaint are exhibits relevant to this claim.

The record shows that Plaintiff filed a grievance and an administrative appeal

about the alleged search and removal of personal property. Doc. 9-1 at 2-4 (Am.

Compl. Ex. 1A – 1C).19 Plaintiff claimed that on March 28, 2017, while

attending a medical appointment, several items of property were removed from

his cell, and that he was transferred two days later to another prison. Doc. 9-1

at 4. Plaintiff did not identify Officer Oliver as the officer responsible. In April

2017, Officer F. Johns denied the grievance, explaining:

Your grievance was reviewed and denied. Attached is your receipt

for personal property in which you signed agreeing that you

received it all before you left Putnam C.I.

Id. Also attached to the Amended Complaint is the receipt for Plaintiff’s

19 Confusing matters, Plaintiff refers in his Amended Complaint to another

grievance he filed at Marion C.I. regarding a different cell search. Doc. 9 at 18

(citing, inter alia “Exh. 3.”). In that grievance, Plaintiff alleged that on May 12,

2017, officers at Marion C.I. also searched his cell and confiscated his property.

Doc. 9-3 at 2.

property, dated March 30, 2017 – two days after the alleged search and

confiscation. Doc. 9-2 at 6-7. The receipt catalogs 28 categories of personal

items, including shorts, earbuds, composition books, writing pads, legal mail,

and personal mail. The receipt shows that Plaintiff requested that each item be

returned to him, that each item was returned to Plaintiff (designated by code

“R”), that Plaintiff initialed next to each item to confirm that it was returned to

him, and that Plaintiff signed the form. Id.20 No items are listed as missing.

As noted earlier, a prisoner must show three things to prevail on a

retaliation claim. He must show that (1) his speech was constitutionally

protected; (2) he suffered adverse action that would likely deter a person of

ordinary firmness from engaging in such speech; and (3) “there is a causal

relationship between the retaliatory action [the disciplinary punishment] and

the protected speech [the grievance].” O'Bryant, 637 F.3d at 1212. Inmates have

no expectation of privacy against searches of their property. Hudson v. Palmer,

468 U.S. 517, 525-26 (1984); see also Fla. Admin. Code § 33-602.203(9)(a) (“All

cells, lockers, dormitories and other areas of an institution may be searched in

a reasonable manner at any time.”). Nevertheless, a search and seizure of

property undertaken for the purpose of chilling an inmate’s exercise of his First

Amendment rights qualifies as unlawful retaliation. See Harris v. Ostrout, 65

20 Plaintiff also attached two packing slips to his Amended Complaint, but

they are dated 2016 and therefore are not informative. Id. at 3, 9.

F.3d 912, 915-16 (11th Cir. 1995) (while prisoners have no expectation of

privacy against strip searches, prison officials may not undertake such searches

to chill an inmate’s right of access to the courts).

Officer Oliver is entitled to summary judgment because Plaintiff cannot

show that Officer Oliver took or damaged his property, and even if he did, that

he had a retaliatory motive. In his declaration, Officer Oliver states that he does

not recall searching Plaintiff’s cell, but if he did, he denies taking, damaging, or

destroying any of Plaintiff’s possessions. Doc. 56-4 at ¶ 3. Officer Oliver further

denies engaging in any type of retaliatory discipline. Id. at ¶ 4. Thus, Officer

Oliver has discharged his burden of “citing to particular parts of materials in

the record, including … declarations” showing that a fact cannot be genuinely

disputed. Fed. R. Civ. P. 56(c)(1). As such, Plaintiff must “go beyond the

pleadings, and by [his] 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).

Plaintiff has not met that burden for three reasons. First, Plaintiff has

offered no facts – either in his Amended Complaint, Second Amended Response,

or declaration – to support his allegation that Officer Oliver was the individual

who searched his cell. Plaintiff’s allegation is not based on personal knowledge

because, according to his Amended Complaint, he was away from his cell when

the search occurred. Doc. 9 at 17. “Unsupported factual allegations, affidavits

based on information and belief instead of personal knowledge, and mere

conclusions are insufficient to withstand a motion for summary judgment.”

Sears v. Warden, Okeechobee Corr. Inst., 762 F. App’x 910, 914 (11th Cir. 2019)

(citing Ellis v. England, 432 F.3d 1321, 1327 (11th Cir. 2005)); see also Fed. R.

Civ. P. 56(c)(4). Plaintiff’s assertion that Officer Oliver was responsible for the

search is based only on information and belief, as he points to no facts to support

his allegation. Second, the record refutes Plaintiff’s allegation that any property

was taken from him during the March 28, 2017, cell search. According to the

property receipt dated March 30, 2017, which Plaintiff signed and initialed,

each of Plaintiff’s personal items were accounted for and returned to him. Doc.

9-1 at 4; Doc. 9-2 at 6-7. Maldonado v. Unnamed Defendant, 648 F. App’x 939,

953 (11th Cir. 2016) (affirming dismissal of inmate’s retaliatory taking claim

where the record showed that “all of Maldonado’s items were returned or

replaced, and Maldonado signed acknowledgements so stating.”). Third,

Plaintiff offers no facts or evidence – other than his own conclusory allegations

– that Officer Oliver had a retaliatory motive for searching Plaintiff’s cell (even

assuming Officer Oliver did so). However, conclusory allegations of a retaliatory

animus are insufficient to withstand a motion for summary judgment.

O’Bryant, 637 F.3d at 1219 (affirming grant of summary judgment to two

defendants where plaintiff failed to present any evidence of a retaliatory

animus); Harris, 65 F.3d at 916 (affirming grant of summary judgment where

plaintiff “produced nothing, beyond his own conclusory allegations, suggesting

that Collins’s actions in compliance with the strip search regulations were

motivated by a retaliatory animus.”); Moulds v. Bullard, 345 F. App’x 387, 393-

94 (11th Cir. 2009) (affirming summary judgment where plaintiff “made only a

bare assertion of a conspiracy to retaliate against him, without alleging any

other details or providing any supporting evidence of such a conspiracy….”).

Accordingly, Officer Oliver is entitled to summary judgment.

To the extent Plaintiff alleges a taking of property, he is not entitled to

relief under 42 U.S.C. § 1983. “A state prisoner … does not have a Fourteenth

Amendment due process claim for the intentional deprivation of his property,

provided that a meaningful post-deprivation remedy is available.” Smith, 562

F. App’x at 817 (citing Hudson, 468 U.S. at 533). “The state remedy does not

need to allow recovery to the same extent that a § 1983 suit would in order to

be meaningful.” Id. (citing Hudson, 468 U.S. at 535). The Eleventh Circuit has

held that Florida provides a meaningful post-deprivation remedy because

“Florida has expressly waived state sovereign immunity for tort suits involving,

inter alia, loss of property caused by state employees or agents acting within

the scope of their employment.” Weaver v. Geiger, 294 F. App’x 529, 533 (11th

Cir. 2008) (citing Fla. Stat. § 768.28(1) (2008)). Thus, Plaintiff may not use §

1983 to recover for the loss of personal items.

D. Claims 6 and 7: Alleged Statutory Violations

Finally, Plaintiff alleges that Officer Cardigan violated his rights under

the Eighth and Fourteenth Amendments by violating state and federal statutes

during the repainting of the dormitory. The factual basis for Claims 6 and 7 is

the same as for Claims 1 and 2. In Claim 6, Plaintiff alleges that Officer

Cardigan violated Plaintiff’s rights under the Fourteenth Amendment’s Due

Process Clause because his conduct violated Florida’s fire prevention code, §

633.206(3), Fla. Stat. Doc. 9 at 18. In Claim 7, Plaintiff alleges that Officer

Cardigan’s repainting of the dormitory also constituted deliberate indifference

under the Eighth Amendment because his actions violated the Clean Air Act,

42 U.S.C. § 7401, et seq. Doc. 9 at 18.

As for Claim 6, Plaintiff cannot bring a private cause of action under

Florida Statute Section 633.206(3) because that statute does not create and was

not intended to provide a private cause of action. The statute reads:

(3) In establishing the uniform firesafety standards and the

minimum firesafety standards, as required by s. 394.879, the

department shall consider types of construction materials and their

flame spread and smoke characteristics, occupancy levels, means of

egress, special hazard protection, smoke barriers, interior finish,

and fire protection systems or equipment and occupancy features

necessary to minimize danger to life from fire, smoke, fumes, or

panic. In considering these factors, the department shall develop

minimum standards which are reasonably prudent with respect to

protecting life, safety, and property.

Fla. Stat. § 633.206(3). This statute does not expressly provide any person or

party with a private remedy that would allow for enforcement of its provisions.

Nor is a private right of action implied. Legislative intent is “the primary factor

considered by a court in determining whether a cause of action exists when a

statute does not expressly provide for one.” Murthy v. N. Sinha Corp., 644 So.

2d 983, 985 (Fla. 1994) (citations omitted); accord Love v. Delta Air Lines, 310

F.3d 1347, 1351-52 (11th Cir. 2002) (“Since the late 1970s, the Supreme Court

has gradually receded from its reliance on three of the[ ] four [Cort v. Ash][21]

factors, focusing exclusively on legislative intent to create a private right of

action as the touchstone of its analysis.” (emphasis in original)). However,

“[t]here is no evidence in the language of [§ 633.206] or the statutory structure

that a private cause of action … was contemplated by the legislature in enacting

this statute.” Murthy, 644 So. 2d at 986. “Rather, the language of [§ 633.206]

indicates that it was created merely to secure the safety and welfare of the

public by regulating” fire safety standards. Id.

To the extent Plaintiff claims that a violation of § 633.206(3) violates the

Fourteenth Amendment’s due process clause, his claim fares no better. “In

prison cases, … the Supreme Court has been conspicuously reluctant to

recognize state laws as creating rights protected by the federal constitution.”

21 Cort v. Ash, 422 U.S. 66, 78 (1975), departed from by Transamerica

Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 24 (1979) (“The dispositive question

remains whether Congress intended to create any such remedy.”).

Edwards v. Gilbert, 867 F.2d 1271, 1274 (11th Cir. 1989) (citing Hewitt v.

Helms, 459 U.S. 460, 467-70 (1983)). “The Court has recognized such rights only

where the state has used mandatory language to specify procedures which must

be used or findings which must be made before benefits are taken away or

burdens are placed on individual prisoners.” Id. (citations omitted). Because §

633.206 is devoid of such “mandatory language,” the Florida statute does not

provide Plaintiff with a Fourteenth Amendment claim.

As for Claim 7, Plaintiff’s allegation that Officer Cardigan was

deliberately indifferent for violating the Clean Air Act adds nothing to the

claims for deliberate indifference in Claims 1 and 2. As discussed regarding

Claims 1 and 2, no jury could find that Officer Cardigan displayed deliberate

indifference to Plaintiff’s safety during the repainting of the dormitory.

Additionally, Plaintiff does not have a private cause of action under the federal

Clean Air Act, 42 U.S.C. § 7401, et seq. “The Act does not authorize a private

cause of action for damages when a prisoner alleges that he was exposed to

contaminants which caused respiratory problems.” Robbins v. Jordan, No. 5:14-

cv-95-HL-MSH, 2014 WL 1314939, at *4 (M.D. Ga. Mar. 31, 2014). “Because

there is not any private right of action under the Clean Air Act, … plaintiff’s

position lacks merit.” Powell v. Lennon, 914 F.2d 1459, 1462 n.7 (11th Cir.

1990). Accordingly, Defendants are entitled to summary judgment on Claim 7.22

E. Qualified Immunity, Physical Injury, and Equitable Relief

Defendants have argued that they are entitled to qualified immunity.

Doc. 56 at 5-8. “Qualified immunity protects from civil liability government

officials who perform discretionary functions if the conduct of the officials does

not violate ‘clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Nolin v. Isbell, 207 F.3d 1253, 1255

(11th Cir. 2000) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “To

receive qualified immunity, the officer must first show that he acted within his

discretionary authority,” Lewis v. City of West Palm Beach, Fla., 561 F.3d 1288,

1291 (11th Cir. 2009) (citation omitted), something not in dispute here. “Once

discretionary authority is established, the burden then shifts to the plaintiff to

show that qualified immunity should not apply.” Id. To overcome qualified

immunity, Plaintiff must show both that: (1) the defendants violated a

constitutional right, and (2) this right was clearly established. Holloman ex rel.

22 In his Second Amended Response, Plaintiff also argues that he has a

class-of-one equal protection claim. Doc. 80 at 21. However, Plaintiff did not

include such a claim in the Amended Complaint’s statement of claims. Doc. 9 at

14-19. At most, Plaintiff made a passing, conclusory allegation of an equal

protection violation under the “injuries” section of the Amended Complaint,

Doc. 9 at 22, which is not enough to raise a claim. A plaintiff may not add new

claims or amend his complaint in a brief opposing summary judgment. Gilmour

v. Gates, McDonald & Co., 382 F.3d 1312, 1314-15 (11th Cir. 2004).

Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004). A court has the

discretion to decide in what order to address these two prongs. Pearson v.

Callahan, 129 S. Ct. 808, 818 (2009).

The Court has determined that neither Defendant violated Plaintiff’s

constitutional rights. Because “[n]o constitutional violation occurred … [the

Court] need not assess whether the alleged violation was clearly established.”

Garczynski v. Bradshaw, 573 F.3d 1158, 1170 (11th Cir. 2009). Thus, the Court

need not address qualified immunity any further.

Likewise, the Court need not decide whether Plaintiff suffered more than

a de minimis physical injury for purposes of recovering compensatory or

punitive damages under 42 U.S.C. § 1997e(e). Because neither Defendant

violated Plaintiff’s rights, Plaintiff is not entitled to damages.

Finally, Plaintiff is not entitled to declaratory or injunctive relief either.

See Doc. 9 at 13, 19. “[A] traditional injunction is a remedy potentially available

only after a plaintiff can make a showing that some independent legal right is

being infringed – if the plaintiff's rights have not been violated, he is not

entitled to any relief, injunctive or otherwise.” Klay v. United Healthgroup,

Inc., 376 F.3d 1092, 1098 (11th Cir. 2004). Because Officer Cardigan and Officer

Oliver did not violate Plaintiff’s constitutional rights, he is not entitled to

injunctive or declaratory relief against them.

Accordingly, based on the foregoing discussion, it is hereby ORDERED:

1. Defendants’ Motion for Summary Judgment (Doc. 56) is GRANTED.

2. The Clerk shall enter judgment in favor of Defendants, Charles

Cardigan, Jr., and Thomas Oliver, and against Plaintiff Christopher

Dyal.

3. The Clerk shall thereafter terminate any pending motions and close

the file.

DONE AND ORDERED at Jacksonville, Florida this 23rd day of March,

2020.

TIMOTHY J. CORRIGAN

United States District Judge

Ie 19

Copies:

Counsel of record

Pro se plaintiff

38