Williams v. Galloway

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

QUINCY A. WILLIAMS,

Plaintiff,

v.

Case No. 3:17-cv-959-J-34JRK

MICHAEL DWAYNE GALLOWAY,

et al.,

Defendants.

ORDER

I. Status

Plaintiff Quincy A. Williams, an inmate of the Florida penal system, initiated this

action on September 15, 2017, by filing a pro se Civil Rights Complaint (Complaint; Doc.

1). In the Complaint, Williams asserts claims pursuant to 42 U.S.C. § 1983 against the

following Defendants: (1) Michael Dwayne Galloway; (2) Brittany E. Rogers;1 (3) Warden

G. Drake; (4) Alexander McKenzie;2 (5) Warden Christopher Hodgson; (6) Lester

Fernandez, Inspector General of the Florida Department of Corrections (FDOC); (7) Julie

Jones, former FDOC Secretary, in her individual capacity; and (8) Mark S. Inch, FDOC

1 See Order (Doc. 78) at 1 n.1; Plaintiff’s Motion (Doc. 61).

2 Williams identified the John Doe Defendant as Alexander McKenzie. See

Plaintiff’s Request for Process of Service (Doc. 59); Order (Doc. 60) at 2 n.1. The Court

dismissed Williams’ claims against Defendant McKenzie on March 25, 2020. See Order

(Doc. 92).

Secretary, in his official capacity.3 Williams asserts that Defendant Galloway violated his

First and Eighth Amendment rights when he sprayed Williams with chemical agents and

slammed him on the ground on June 1, 2016, as retaliation for Williams complaining about

Captain Swain. Additionally, he states that Defendant Rogers used excessive force

against him on June 1st. He also asserts that Defendants Jones, Fernandez, Drake, and

Hodgson failed to protect him when they knew he feared his life was in danger because

he had reported Captain Swain. He requests monetary damages and declaratory relief.

This matter is before the Court on Defendants Inch, Jones, Fernandez, Galloway,

Hodgson, Hylda Rogers, and Drake’s Motion for Partial Summary Judgment (Motion;

Doc. 84) and Defendant Brittany Rogers’ Amended Motion for Partial Summary Judgment

(Rogers Motion; Doc. 100). They submitted exhibits in support of the Motions. See Def.

Exs., Docs. 84-1 through 84-10; 86-1; 100-1.4 The Court advised Williams of the

provisions of Federal Rule of Civil Procedure 56, notified him that the granting of a motion

to dismiss or a motion for summary judgment would represent a final adjudication of this

case which may foreclose subsequent litigation on the matter, and gave him an

opportunity to respond to the Motions. See Order (Doc. 17); Summary Judgment Notices

(Docs. 85, 101). Williams filed responses in opposition to the Motions. See Opposition to

Defendants’ Motion for Partial Summary Judgment (Response; Doc. 106); Opposition to

3 The Court substituted Mark S. Inch, the current FDOC Secretary, as the proper

party Defendant with respect to the official-capacity claim. See Order (Doc. 37). The Clerk

made the appropriate entries on the docket to reflect the substitution.

4 The Court cites to the document and page numbers as assigned by the Court’s

Electronic Case Filing System.

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Defendant’s Motion for Partial Summary Judgment (Response II; Doc. 112). Defendants’

Motions are ripe for review.

II. Plaintiff’s Allegations

In his verified Complaint,5 Williams asserts that Captain Swain assaulted him on

October 1, 2015, at Columbia Correctional Institution Annex (CCIA). See Complaint at 8.

According to Williams, he filed a complaint in federal court,6 asserting that he feared his

life was in danger because Captain Swain and other officers threatened him. See id.

Williams states that the Court sent standing orders7 to notify FDOC officials about

Williams’ assertions. See id. at 9. He avers that when he attempted suicide, the FDOC

transferred him for mental health treatment, but returned him to CCIA “without any

protection” in May 2016, at which time the Court sent another standing order to the

FDOC.8 Id. According to Williams, he requested protection when the “transfer bus”

delivered him to CCIA, where he was placed in segregated confinement for disobeying

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

omitted) (“The factual assertions that [Plaintiff] made in his amended complaint should

have been given the same weight as an affidavit, because [Plaintiff] verified his complaint

with an unsworn written declaration, made under penalty of perjury, and his complaint

meets Rule 56’s requirements for affidavits and sworn declarations.”).

6 Williams filed a complaint on January 15, 2016. See Quincy A. Williams v. Shawn

Swain and Jason Reeder, Case No. 3:16-cv-45-J-34JRK. The parties reached a

settlement on June 11, 2019. See id., Doc. 107.

7 See Case No. 3:16-cv-45-J-34JRK, Standing Orders to Clerk to Notify Inspector

General of the Florida Department of Corrections and Warden of Affected Institution

Regarding Inmate Claim of Suicidal Intent or Other Imminent Physical Harm, Docs. 2, 15,

20, 31.

8 See Case No. 3:16-cv-45-J-34JRK, Standing Order, Doc. 15, filed May 16, 2016.

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orders. Id. He states that Lieutenant Stephenson interviewed him, advised him that he

was “under protected management,” and provided information for the Inspector General’s

review. Id. He avers that, although he had advised FDOC officers that he needed

protection, the FDOC returned him to general population on June 1, 2016. See id.

Williams states that he requested protection that night, when he was placed into a holding

cell with three property bags that weighed about fifty pounds. See id. According to

Williams, he had stored his property in two tied-together pillowcases (that he carried

across his shoulder) and a wrapped-up sheet (that he held with his hands that were

restrained behind his back). See id.

Williams states that Defendants Galloway and Rogers (and an unknown sergeant)

escorted him at approximately 11:00 p.m. on June 1st. See id. at 10. According to

Williams, one officer held his left arm, another held his right arm, and a third officer

grasped his shoulder. See id. He states that they told him that the escort formation “was

to keep [him] from falling with all []his property.” Id. He asserts that, without any warning,

Defendant Galloway sprayed him with chemical agents in the face, and Galloway,

Rogers, and an unknown officer “dunked” and “slammed” him on the ground. Id. at 10-

11. According to Williams, Galloway stated, “this is from Captain Swain[,] keep your

mouth closed.” Id. at 10. He states that Galloway’s use of excessive force was a retaliatory

measure because Williams had complained about Captain Swain. See id. at 11. He

maintains that Galloway and Rogers “held” him on the ground, as the chemical agents

burned his face and eyes and his property bags (wrapped around his neck) choked him.

Id. at 10. Williams recounts that, as he gasped for air, Galloway told the cameraman not

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to turn on the camera until the Captain arrived. See id. According to Williams, Defendants

Galloway and Rogers’ use of force was unnecessary because he neither argued, resisted,

nor disobeyed. See id. He maintains that Galloway wrote two false disciplinary reports

and that the report for use of force was overturned for insufficient evidence, and dismissed

on rehearing. See id. Williams avers that Defendants Jones, Fernandez, Drake, and

Hodgson failed to protect him when they knew that he feared his life was in danger due

to his complaints about Captain Swain. See id. at 11-12.

According to Williams, he suffered the following injuries as a result of Defendants

Galloway and Rogers’ use of excessive force: (1) a dislocated bicep; (2) aggravated back

and shoulder injuries; and (3) eye injuries resulting in the need for prescription eyeglasses

for distance. See id. at 10. He asserts that he has been treated with pain pills and steroid

shots to heal the bicep. See id. He states that the bicep injury has prevented him from

exercising, which caused severe weight loss (over fifty pounds) and muscle deterioration.

See id. He also maintains that he has had extensive mental health treatment. See id.

III. Summary Judgment Standard

Under Rule 56 of the Federal Rules of Civil Procedure (Rules(s)), “[t]he court shall

grant summary judgment if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The record to be considered on a motion for summary judgment may include

“depositions, documents, electronically stored information, affidavits or declarations,

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

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interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A).9 An issue is

genuine when the evidence is such that a reasonable jury could return a verdict in favor

of the non-moving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir.

1996) (quoting Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993)).

“[A] mere scintilla of evidence in support of the non-moving party’s position is insufficient

to defeat a motion for summary judgment.” Kesinger ex rel. Estate of Kesinger v.

Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc.,

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

The party seeking summary judgment bears the initial burden of demonstrating to

the court, by reference to the record, that there are no genuine issues of material fact to

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

1991). “When a moving party has discharged its burden, the non-moving party must then

go beyond the pleadings, and by its own affidavits, or by depositions, answers to

interrogatories, and admissions on file, designate specific facts showing that there is a

9 Rule 56 was revised in 2010 “to improve the procedures for presenting and

deciding summary-judgment motions.” Rule 56 advisory committee's note 2010 Amends.

The standard for granting summary judgment remains

unchanged. The language of subdivision (a) continues to

require that there be no genuine dispute as to any material

fact and that the movant be entitled to judgment as a matter

of law. The amendments will not affect continuing

development of the decisional law construing and applying

these phrases.

Id. “[A]lthough the interpretations in the advisory committee[’s] notes are not binding, they

are highly persuasive.” Campbell v. Shinseki, 546 F. App’x 874, 879 n.3 (11th Cir. 2013).

Thus, case law construing the former Rule 56 standard of review remains viable.

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genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th

Cir. 1995) (internal citations and quotation marks omitted). Substantive law determines

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

suit under the governing law will properly preclude the entry of summary judgment.”

Anderson, 477 U.S. at 248. In determining whether summary judgment is appropriate, a

court “must view all evidence and make all reasonable inferences in favor of the party

opposing summary judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)

(citing Dibrell Bros. Int’l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th

Cir. 1994)). “Summary judgment is improper, however, if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Guevara v. NCL

(Bahamas) Ltd., 920 F.3d 710, 720 (11th Cir. 2019) (quotation marks and citation

omitted).

IV. Summary of the Arguments

In the Motions, Defendants maintain that they are entitled to qualified immunity.

See Motion at 11-12; Rogers Motion at 9. Additionally, Defendants Inch, Jones,

Fernandez, Drake, and Hodgson assert that there are no genuine issues of material fact,

and therefore, the Court should grant summary judgment in their favor as to Williams’

Eighth Amendment failure-to-protect claims against them. See Motion at 7-9. They also

maintain that Williams is not entitled to compensatory and punitive damages under 42

U.S.C. § 1997e(e) because he has not alleged any physical injury resulting from

Defendants’ acts and/or omissions. See Motion at 9-11; Rogers Motion at 7-9.

Additionally, Defendants Fernandez and Jones assert that the Eleventh Amendment bars

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Williams’ claims for monetary damages against them in their official capacities. See

Motion at 11. In his Responses, Williams maintains that Defendants are not entitled to

summary judgment in their favor because there remain genuine issues of material fact as

to his Eighth Amendment claims against them. See Response at 1-6; Response II at 1-5.

He also asserts that Defendants are not entitled to qualified immunity. See Response at

15; Response II at 7. Additionally, Williams states that his physical injuries resulting from

Defendants’ actions and/or omissions are more than de minimis. See Response at 12-

14; Response II at 6-7.

V. Law

A. Eighth Amendment Excessive Use of Force

With respect to the appropriate analysis in an excessive use of force case, the

Eleventh Circuit has explained.

[O]ur core inquiry is “whether force was applied in a good faith

effort to maintain or restore discipline, or maliciously and

sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1,

112 S.Ct. 995, 999, 117 L.Ed.2d 156 (1992). In determining

whether force was applied maliciously and sadistically, we

look to five factors: “(1) the extent of injury; (2) the need for

application of force; (3) the relationship between that need

and the amount of force used; (4) any efforts made to temper

the severity of a forceful response; and (5) the extent of the

threat to the safety of staff and inmates[, as reasonably

perceived by the responsible officials on the basis of facts

known to them]. . .” Campbell v. Sikes, 169 F.3d 1353, 1375

(11th Cir. 1999) (quotations omitted).

McKinney v. Sheriff, 520 F. App’x 903, 905 (11th Cir. 2013) (per curiam). “When

considering these factors, [courts] ‘give a wide range of deference to prison officials acting

to preserve discipline and security, including when considering decisions made at the

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scene of a disturbance.’” Fennell v. Gilstrap, 559 F.3d 1212, 1217 (11th Cir. 2009) (per

curiam) (quoting Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007)).

“The Eighth Amendment’s prohibition of cruel and unusual punishments

necessarily excludes from constitutional recognition de minimis uses of physical force,

provided that the use of force is not of a sort repugnant to the conscience of mankind.”

Hudson v. McMillian, 503 U.S. 1, 9-10 (1992) (internal quotations and citations omitted).

Indeed, not “every malevolent touch by a prison guard gives rise to a federal cause of

action.” Id. at 9 (citation omitted). Notably, a lack of serious injury is relevant to the

excessive force inquiry. See Smith v. Sec’y, Dep’t of Corr., 524 F. App’x 511, 513 (11th

Cir. 2013) (per curiam) (quoting Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) (per curiam)).

The United States Supreme Court has explained:

“[T]he extent of injury suffered by an inmate is one factor that

may suggest ‘whether the use of force could plausibly have

been thought necessary’ in a particular situation.” Ibid.[10]

(quoting Whitley,[11] supra, at 321, 106 S.Ct. 1078). The

extent of injury may also provide some indication of the

amount of force applied. . . . An inmate who complains of a

“‘push or shove’” that causes no discernible injury almost

certainly fails to state a valid excessive force claim. Id., at 9

(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.

1973)).[12]

10 Hudson, 503 U.S. at 7.

11 Whitley v. Albers, 475 U.S. 312 (1986).

12 See Johnson, 481 F.2d at 1033 (“Not every push or shove, even if it may later

seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional

rights.”).

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Injury and force, however, are only imperfectly

correlated, and it is the latter that ultimately counts. An inmate

who is gratuitously beaten by guards does not lose his ability

to pursue an excessive force claim merely because he has

the good fortune to escape without serious injury.

Wilkins, 559 U.S. at 37-38.

B. Eighth Amendment Failure to Protect

The Eighth Amendment requires prison officials to “take reasonable measures to

guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). It is

“[a] prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an

inmate [that] violates the Eighth Amendment.” Id. at 828 (citations omitted). The deliberate

indifference standard requires the plaintiff to demonstrate that the prison official “was

subjectively aware” of a risk of harm; mere negligence is insufficient. Id. at 829, 835-36.

In a case where the prisoner-plaintiff repeatedly asked to be transferred because he was

concerned about a general lack of safety in his cell block, the Eleventh Circuit explained

the requirement of deliberate indifference to a substantial risk of harm as follows:

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.”[13]

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.”[14] The second element

— whether the defendant was deliberately indifferent to that

13 Lane v. Philbin, 835 F.3d 1302, 1307 (11th Cir. 2016).

14 Lane, 835 F.3d at 1307.

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risk — has both a subjective and an 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.”[15]

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.[16] Finally, the plaintiff must show a “necessary causal

link” between the officer’s failure to act reasonably and the

plaintiff’s injury.[17]

Marbury v. Warden, 936 F.3d 1227, 1233 (11th Cir. 2019) (emphasis added); Johnson v.

Bessemer, Ala., City of, 741 F. App’x 694, 698-99 (11th Cir. 2018) (per curiam).

The Eleventh Circuit has 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)).[18]

In other words, a plaintiff in [Williams]’ 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).[19]

Whether prison officials had the requisite awareness of the

15 Rodriguez v. Sec’y for Dep’t of Corr., 508 F.3d 611, 617 (11th Cir. 2007).

16 Rodriguez, 508 F.3d at 620.

17 Rodriguez, 508 F.3d at 622-23.

18 Purcell ex rel. Estate of Morgan v. Toombs Cty., Ga., 400 F.3d 1313 (11th Cir.

2005).

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

11

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: “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. . . .

Goodman v. Kimbrough, 718 F.3d 1325, 1332 (11th Cir. 2013) (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”); Scott v. Miami Dade Cty., 657 F. App’x 877, 883 (11th Cir. 2016) (stating

that “a plaintiff must allege facts that would allow a jury to conclude that: the defendant

actually knew that the plaintiff faced a substantial risk of serious harm” (subjective

component), and “the defendant disregarded that known risk by failing to respond to it in

an objectively reasonable manner” (objective component)); Brown v. Hughes, 894 F. 2d

1533, 1537 (11th Cir. 1990) (“The known risk of injury must be a ‘strong likelihood, rather

than a mere possibility’ before a guard’s failure to act can constitute deliberate

indifference.”).

Prison officials may avoid Eighth Amendment liability in one of three ways: (1)

showing that they were not subjectively aware “of the underlying facts indicating a

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sufficiently substantial danger and that they were therefore unaware of a danger”; (2)

admitting awareness of “the underlying facts” of a substantial danger, but believing the

danger was “insubstantial or nonexistent”; or (3) claiming they responded reasonably to

a known substantial danger. Rodriguez, 508 F.3d at 617-18 (quoting Farmer, 511 U.S. at

844) (internal quotations omitted).

C. Qualified Immunity

The Eleventh Circuit has stated:

The qualified-immunity defense reflects an effort to

balance “the need to hold public officials accountable when

they exercise power irresponsibly and the need to shield

officials from harassment, distraction, and liability when they

perform their duties reasonably.” Pearson v. Callahan, 555

U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The

doctrine resolves this balance by protecting government

officials engaged in discretionary functions and sued in their

individual capacities unless they violate “clearly established

federal statutory or constitutional rights of which a reasonable

person would have known.” Keating v. City of Miami, 598 F.3d

753, 762 (11th Cir. 2010) (quotation marks and brackets

omitted).

As a result, qualified immunity shields from liability “all

but the plainly incompetent or one who is knowingly violating

the federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th

Cir. 2002). But the doctrine’s protections do not extend to one

who “knew or reasonably should have known that the action

he took within his sphere of official responsibility would violate

the constitutional rights of the [plaintiff].” Harlow v. Fitzgerald,

457 U.S. 800, 815, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)

(internal quotation marks and alteration omitted).

To invoke qualified immunity, a public official must first

demonstrate that he was acting within the scope of his or her

discretionary authority. Maddox v. Stephens, 727 F.3d 1109,

1120 (11th Cir. 2013). As we have explained the term

“discretionary authority,” it “include[s] all actions of a

governmental official that (1) were undertaken pursuant to the

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performance of his duties, and (2) were within the scope of his

authority.” Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir. 1994)

(internal quotation marks omitted). Here, it is clear that

Defendant Officers satisfied this requirement, as they

engaged in all of the challenged actions while on duty as

police officers conducting investigative and seizure functions.

Because Defendant Officers have established that they

were acting within the scope of their discretionary authority,

the burden shifts to [plaintiff] to demonstrate that qualified

immunity is inappropriate. See id. To do that, [plaintiff] must

show that, when viewed in the light most favorable to him, the

facts demonstrate that Defendant Officers violated [plaintiff's]

constitutional right and that that right was “clearly established

... in light of the specific context of the case, not as a broad

general proposition[,]” at the time of Defendant officers’

actions. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151,

150 L.Ed.2d 272 (2001), overruled in part on other grounds by

Pearson, 555 U.S. 223, 129 S.Ct. 808. We may decide these

issues in either order, but, to survive a qualified immunity

defense, [the plaintiff] must satisfy both showings. Maddox,

727 F.3d at 1120-21 (citation omitted).

Jones v. Fransen, 857 F.3d 843, 850-51 (11th Cir. 2017). The Court has instructed:

Because § 1983 “requires proof of an affirmative causal

connection between the official’s acts or omissions and the

alleged constitutional deprivation,” Zatler v. Wainwright, 802

F.2d 397, 401 (11th Cir. 1986) (per curiam) (citation omitted),

each defendant is entitled to an independent qualified

immunity analysis as it relates to his or her actions and

omissions. So[,] we must be careful to evaluate a given

defendant’s qualified immunity claim, considering only the

actions and omissions in which that particular defendant

engaged.

Alcocer v. Mills, 906 F.3d 944, 951 (11th Cir. 2018).

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VI. Analysis20

A. Defendant Hylda Rogers

In the Complaint, Williams asserts that Defendant Rogers violated his Eighth

Amendment right when she used excessive force against him on June 1, 2016. See

Complaint at 2, 10-11. On February 11, 2019, service of process was executed as to

Hylda Harley Rogers. See Return of Service (Doc. 34), filed February 19, 2019. On

October 23, 2019, Williams notified the Court that Hylda Harley Rogers “was the wrong

correctional officer,” and that “[t]he correct prison officer is Brittany E. Rogers.” Motion to

Process of Service (Williams’ Motion; Doc. 61) at 2. The Court directed service of process

on Brittany E. Rogers, and ordered the Clerk to change the docket to reflect Rogers’

proper name. See Order Redirecting Service of Process Upon Defendant Rogers (Doc.

78).On January 15, 2020, service of process was executed as to Brittany E. Rogers. See

Return of Service (Doc. 83), filed January 21, 2020.

In the Motion, Defendant Hylda Rogers asserts that she “was not a party to the

incident involving [Williams] on June 1, 2016. Motion at 5. In support of her position, she

submitted a Declaration. See Def. Ex., Declaration of Hylda Rogers, Doc. 84-2. She

states in pertinent part:

I am employed by the Department of Corrections as a

corrections officer.

I have been informed of allegations made by Inmate Quincy

Williams in Case No. 3:17-cv-959-J-MMH-JRK.

20 For purposes of summary judgment, the Court views the evidence and all

reasonable inferences therefrom in the light most favorable to the plaintiff. Thus, the facts

described in the Court’s analysis may differ from those that ultimately can be proved.

15

I was not involved in or a witness to any use of force with

Inmate Williams DC#340902 on June 1, 2016.

Id. (enumeration omitted and emphasis added). Williams does not oppose Hylda Rogers’

assertion that she was not involved in the June 1, 2016 incident. See Response;

Response II. As such, Defendants’ Motion as to Williams’ Eighth Amendment claim

against Hylda Rogers is due to be granted.

B. Eighth Amendment Excessive Use of Force

Williams asserts that Defendants Galloway and Brittany Rogers violated his Eighth

Amendment right when they used excessive force upon him on June 1, 2016. Defendants

Galloway and Rogers assert that they are entitled to summary judgment as to Williams’

Eighth Amendment claims against them. In support of their position, they submitted

exhibits, see Docs. 84-1 through 84-10; 86-1; 100-1, including their own Declarations,

see Declarations of Michael Galloway (Galloway Decl.), Doc. 84-1; Brittany Rogers (B.

Rogers Decl.), Doc. 100-1. In a Declaration, Defendant Galloway describes the

circumstances leading up to the June 1, 2016 incident involving Williams. He states in

pertinent part:

On June 1, 2016 at approximately 11:05 p.m., I was

assisting Officer McKenzie and Sergeant Brittany Rogers with

the escort of Inmate Williams, Quincy dc#340902. Inmate

Williams stated that the handcuffs were too tight. Sergeant

Rogers checked the handcuffs and informed Inmate Williams

that the hand restraints were not too tight. Inmate Williams

stated, “the fu[--]ing cuffs are too tight” and attempted to

snatch away from me. I ordered Inmate Williams to stop his

actions to which he refused and continued his disorderly

behavior.

Officer McKenzie broke the seal (seal #3033006) to

MK 4 chemical agent #75 Hip canister and administered a

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continuous stream of chemical agents to the facial area of

Inmate Williams. The chemical agents had the desired effect.

Inmate Williams complied with all orders given, and all force

ceased. When the chemical agents took effect, Inmate

Williams fell to his knees.

Galloway Decl. (enumeration omitted). In a declaration, Brittany Rogers provided a similar

account of what transpired that night. See B. Rogers Decl.; see also Def. Ex., Doc. 84-6

at 3, MINS Incident Report (MINS Report).21 According to the MINS Report, the handheld

video footage captured Williams’ allegations of staff misconduct as follows: “They beat

me, they slammed me on the ground, and gassed me for no reason, I did not resist, this

is retaliation for a pending lawsuit against Captain Swain. All proper notifications were

made.” Def. Ex., Doc. 84-6 at 5 (capitalization omitted); see Doc. 84-7 at 3 (stating the

handheld video footage “does not contain any portion of the force used”); see also Doc.

84-7 at 4 (stating that none of the fixed wing videos show “any portion of the force used”).

The use of force report states that Officer McKenzie used chemical agents to overcome

Williams’ resistance to a lawful command. See Def. Ex., Report of Force Used (Report),

Doc. 84-6 at 1. According to the Report, McKenzie used chemical agents against Williams

at 11:05 p.m.; Williams was compliant at 11:06 p.m.; Officer Michael Nelson activated the

handheld camera at 11:10 p.m.; and Williams showered at 11:12 p.m., had a medical

evaluation at 11:24 p.m., was issued clean clothing at 11:24 p.m., and was placed in a

secure decontaminated cell at 11:33 p.m. See id.

21 The abbreviation or acronym "MINS" is not defined in the documents provided

to the Court. Apparently, these reports are generated for the use of corrections officials

and the Inspector General's Office after a use of force upon an inmate or a battery upon

a correctional officer by an inmate.

17

Given the evidence submitted by Defendants Galloway and Rogers, the Court

finds that they have met their initial burden of showing, by reference to their Declarations

and FDOC incident and use of force reports, that McKenzie used chemical agents to bring

Williams into compliance with lawful orders. Thus, Williams is required to present

evidence to show that there is a genuine issue for trial. In a Declaration, he states in

pertinent part:

Sergeant Galloway told me go into the hold[ing] cell with my

property with me because of count time. After count was over,

I was removed from the holding cell with 3 bag[s] of property

two tied together pillow case[s] carried across by shou[l]der

and the other in a sheet I carr[ied] in my hands behind my

back in handcuff[s.] And as we w[ere] walking for no reason

at all one of the m[e]n [a] Sergeant sprayed me in the face,

and all three of them slam[med] me to the ground and

Sergeant Galloway sprayed again in the face and said this [is]

from Captain Swain, keep your mouth close[d]. [M]y eyes

w[ere] burning and I was choking from the gas and the pillow

cases wrap[ped] around my neck. The[n] Sergeant Galloway

told the cameraman not to start the recording yet[,] wait on the

Captain and he had his knee press[ed] hard into my upper

back. After removing the two pillow[]s from around my neck[,]

he allow[ed] the cameraman to start[] recording. [I]nstead of

medical[,] I was t[a]ken directly to confinement and put into

the shower. I explain[ed] to the Captain on [the] recorder that

I was being retaliated against for reporting w[hat] Captain

Swain had done to me.

. . . .

I never resist[ed] any order giv[en] to me. Nor did I pull from

the officer holding me. I never said that I had any type of

problems with the handcuffs. I was only trying to carry my

property.

P. Exs., Declaration of Quincy Williams (Williams Decl.), Doc. 106-1 at 3-5; see

Declaration of Quincy Williams (Williams Decl. II), Doc. 112-3 at 2-7.

18

Given the differences in Williams’ and Defendants Galloway’s and Rogers’ sworn

recollections, there remain genuine issues of material fact as to whether Galloway and

Rogers used excessive force upon Williams. As such, Defendants’ Motions as to Williams’

Eighth Amendment claims against Defendants Galloway and Rogers are due to be

denied.

C. Eighth Amendment Failure to Protect

Williams also asserts that Defendants Jones, Fernandez, Drake, and Hodgson

failed to protect him when they knew he feared his life was in danger because he had

reported Captain Swain. Defendants Jones (and Inch), Fernandez, Drake, and Hodgson

assert that they are entitled to summary judgment as to Williams’ Eighth Amendment

failure-to-protect claims against them. In support of their position, they submitted exhibits,

see Def. Exs., including the Declarations of Warden Drake (Drake Decl.), Doc. 86-1;

Warden Hodgson (Hodgson Decl.), Doc. 84-4; and Lester Fernandez (Fernandez Decl.),

Doc. 84-5.

Defendant Fernandez asserts that he was not employed at the Inspector General’s

Office on June 1, 2016, when the incident involving Williams occurred. See Motion at 4-

5, 8. In his Declaration, he states in pertinent part:

I am employed by the State of Florida as Inspector General

for the Florida Department of Corrections.

I was employed in the Inspector General’s Office

beginning June 6, 2016.

I have reviewed the Complaint and allegations made by

Inmate Quincy Williams in Case No.[] 3:17-CV-959-MMH-

JRK. The events of this time occurred as follows[.]

19

During this period of time, I did not investigate a complaint by

an inmate named Inmate Quincy Williams, DC #340902. Nor

was I informed that Inmate Williams complained that he was

afraid for his life due to a Sergeant Swain.

Fernandez Decl. (enumeration omitted and emphasis added). Defendant Fernandez

maintains that he started his employment with the Inspector General’s Office on June 6,

2016, and therefore is entitled to summary judgment in his favor. See Motion at 8.

Williams fails to contest this assertion. Thus, Defendants’ Motion as to Williams’ Eighth

Amendment failure-to-protect claim against Fernandez is due to be granted.

Next, Defendant Hodgson maintains that he was not employed at Columbia

Correctional Institution on June 1, 2016, when the incident involving Williams happened.

See Motion at 5, 8. In a Declaration, he states in pertinent part:

I was a Warden at Jefferson Correctional Institution from

June 1, 2016 to June 30, 2016.

I have been informed of allegations made by Inmate Quincy

Williams in Case No. 3:17[-]cv-959-MMH-JRK. I have not had

contact with this inmate to my knowledge and was not aware

of the fact that this inmate alleged fear of any employee at

Columbia Annex in June of 2016.

I would have been unaware of anything relating to Inmate

Williams and Captain Swain prior to my arrival at

Columbia Correctional Institution in July 2016.

Hodgson Decl. (enumeration omitted and emphasis added). Defendant Hodgson

maintains that he is entitled to summary judgment in his favor because he arrived at

Columbia Correctional Institution in July 2016. See id. Williams fails to contest this

assertion. Thus, Defendants’ Motion as to Williams’ Eighth Amendment failure-to-protect

claim against Hodgson is due to be granted.

20

Defendant Drake maintains that Williams cannot prove that he knew of and

disregarded an excessive risk to Williams’ health or safety. See Motion at 5, 8. In a

Declaration, Drake states in pertinent part:

I was the Warden at Columbia Correctional in June of 2016.

I have been informed of allegations made by Inmate Quincy

Williams in Case No. 3:17-cv-959-MMH-JRK. I have not had

contact with this inmate to my knowledge and was not aware

of that [sic] the fact that this inmate alleged fear of any

employee at this institution.

I was not aware that Inmate Williams was in fear of his life and

was being threatened for reporting Captain Swain for

allegedly assaulting him. Nor was I aware that Inmate

Williams was assaulted because he reported Captain Swain.

It is my understanding that force was used against this inmate

for failing to obey a lawful order.

Drake Decl. (enumeration omitted).

In his Response, Williams maintains that Drake knew he feared his life was in

danger because he had reported Captain Swain. See Response at 7-9. He states that

Drake had reviewed the use of force video footage showing Captain Swain’s assault on

him, and that Williams had sent several grievances “letting [Drake] know” about Captain

Swain’s threats. Id. at 7 (citing P. Ex. C, Grievances, Doc. 106-3 at 3, 6, 12, dated May

10th, 12th, 29th, 2016). Additionally, Williams maintains that the Court sent Drake three

“standing notices” in Case No. 3:16-cv-45-J-34JRK, Docs. 15, 20, 31, notifying Drake that

Williams feared his life was in danger. Id.; Williams Decl. II at 3 (stating the standing

orders notified the Warden, Inspector General, and Secretary “about what was happening

to [Williams]”). In his Declaration, Williams describes the circumstances leading up to the

June 1, 2016 incident. He states in pertinent part:

21

On October 1, 2015, while housed at Columbia

Correctional Institution Annex I was sexually and physically

assaulted by Captain Swain which result[ed] in several suicide

attempt[s] and inpatient mental treatment. D[ur]ing these

time[s] I requested protection at these other institution[s]

which approved the grievance and forwarded to the Inspector

General also on several differen[t] incidents. The Honorable

Court sent notices too due to fact I was being harass[ed] and

threaten[ed] for reporting Captain Swain. I cut my neck and

arm and went to extensive treatment at South Florida

Reception Center. I file[d] [a] request for protection there also,

and was advised that I would return after being discharged

from mental health.

[I]n May 2016[,] I return[ed] back to Columbia C.I.

Annex without any protection status. I immediately

request[ed] … protect[ion] right off the bus and resulted in

be[ing] place[d] in segregated confinement for disobeying [an]

order[.] False D.R. written saying I refused to go to my cell. I

again notified the courts who notified the institutional

Warden Drake who order[ed] the confinement lieutenant

[to] interview me concerning the court’s notice. I advised

him of the issue I was having and had with Swain and told

him I was in fear [h]e was going to have someone kill me.

He said he was sending the information to the Inspector

General and that I would remain in confinement until the

investigation was complete and less than a week I was

order[ed] to be released back into open population S-

dorm. I ask[ed] to see the Lieutenant who was not

available at that time[.] So to keep from getting another false

D.R. write up[,] I went to the dorm when the shift change[d]

that night. Later I request[ed] … protection that I was in fear

for my life.

Williams Decl. at 2-3 (emphasis added). In his Complaint, Williams asserts that Lieutenant

Stephenson interviewed him about his assertions (that had prompted the Court to send

its May 2016 standing order), advised him that he was “under protected management,”

and provided information for the Inspector General’s review. Complaint at 9. Taking

Williams’ assertions as true, Drake neither responded to Williams’ assertions in an

22

unreasonable manner nor knowingly or recklessly disregarded an excessive risk to

Williams’ health or safety. As such, Defendants’ Motion is due to be granted as to

Williams’ Eighth Amendment failure-to-protect claim against Drake.

Additionally, Defendants Jones and Inch maintain that Williams cannot prove that

they knew of and disregarded an excessive risk to Williams’ health or safety. See Motion

at 5, 8.22 In his Declaration, Williams states that the “Secretary” knew he feared his life

was in danger because the Court sent “several standing orders” in Case No. 3:16-cv-45-

J-34JRK. Williams Decl. II at 3. Notably, the Clerk sent the May 16, 2016 standing order

to the Inspector General’s Office (Interim Inspector General Sumpter) and Warden Drake,

not the FDOC Secretary’s Office. See Case No. 3:16-cv-45-J-34JRK, “Standing Order to

Clerk to Notify Inspector General of the Florida Department of Corrections and Warden

of Affected Institution Regarding Inmate Claim of Suicidal Intent or Other Imminent

Physical Harm,” Doc.15, filed May 16, 2016. Additionally, Defendant Inch was appointed

to serve as the FDOC Secretary in January 2019, and therefore was not in a position

where he could have known about Williams’ concerns relating to Captain Swain in 2016.

See http://dc.state.fl.us/secretary.html; Order (Doc. 37); Motion to Substitute (Doc. 33).

22 Williams sued Julie Jones, as FDOC Secretary in her individual and official

capacities, asserting that she violated his Eighth Amendment right when she failed to

protect him. See Complaint at 3, 11. The Court substituted Mark Inch, the current FDOC

Secretary, as the proper party Defendant, with respect to the official-capacity claim. See

Order (Doc. 37) (citing Federal Rule of Civil Procedure 25(d)(1)).

23

As such, Defendants’ Motion as to Williams’ Eighth Amendment failure-to-protect claims

against Defendants Jones and Inch are due to be granted.23

D. Qualified Immunity

Defendants assert that they are entitled to qualified immunity because they did not

commit any federal statutory or constitutional violation. See Motion at 11-12; Rogers

Motion at 9. Under the doctrine of qualified immunity, Defendants may claim they are

entitled to qualified immunity from monetary damages in their individual capacities. It is

undisputed that Defendants were engaged in discretionary functions during the events at

issue. To defeat qualified immunity with respect to these Defendants, Williams must show

both that Defendants committed a constitutional violation, and that the constitutional right

violated was clearly established. As the Eleventh Circuit has instructed, in determining

the applicability of qualified immunity, the Court must “parse” the actions each Defendant

undertook, and “address the evidence as it pertains solely to him [or her].” Alcocer, 906

F.3d at 952.

Upon review, Defendants Fernandez, Hodgson, Drake, and Jones are entitled to

qualified immunity from monetary damages in their individual capacities as to Williams’

Eighth Amendment failure-to-protect claims against them. As to Williams’ Eighth

Amendment excessive-use-of-force claims against Defendants Galloway and Brittany

23 The Court need not address Defendants Fernandez and Jones’ assertion that

the Eleventh Amendment bars Williams’ claims for monetary damages against them in

their official capacities. See Motion at 11; see also Complaint at 3.

24

Rogers, they are not entitled to qualified immunity. As such, Defendants’ Motions as to

their assertion of qualified immunity are due to be granted in part and denied in part.

E. Physical Injury Requirement

42 U.S.C. § 1997e(e)

Next, the Court turns to Defendants’ assertion that Williams is not entitled to

compensatory and punitive damages under 42 U.S.C. § 1997e(e) because he has not

alleged any physical injuries that are more than de minimis, resulting from Defendants’

acts and/or omissions. See Motion at 9-11; Rogers Motion at 7-9. In support of their

position, Defendants submitted Williams’ Inmate Sick-Call Request (Request), dated

June 5, 2016. See Def. Ex., 84-10 at 1. In the Request, Williams complained about a

pulled muscle, back pain, right eye and neck soreness, and blurred vision. See id.

Williams stated that the back pain was “ongoing,” but the other problems started June 1,

2016. Id.

In Brooks v. Warden, 800 F.3d 1295 (11th Cir. 2015), the Eleventh Circuit Court of

Appeals addressed the availability of compensatory and punitive damages as well as

nominal damages in suits brought by prisoners under § 1983. The Eleventh Circuit stated:

[Plaintiff]’s claim, however, is further governed by the Prison

Litigation Reform Act of 1995 [(PLRA)], Pub.L. No. 104B134,

§§ 802B10, 110 Stat. 1321, 1366B77 (1996). The 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.” AlBAmin v. Smith, 637 F.3d 1192, 1195

(11th Cir. 2011) (quoting Napier v. Preslicka, 314 F.3d 528,

531 (11th Cir. 2002)). The section of the Act at issue here, 42

U.S.C. § 1997e(e), reads this way:

25

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 or the commission of

a sexual act....

This Court has held that § 1997e(e) applies to all federal civil

actions, including constitutional claims brought under § 1983.

See Harris v. Garner (Harris II), 216 F.3d 970, 984B85 (11th

Cir. 2000) (en banc)....

In this case, [Plaintiff] did not allege any physical injury

. . . . Nevertheless, he sought “compensatory . . . punitive, and

nominal damages” from [Defendant]. Under the statute and

our caselaw, an incarcerated plaintiff cannot recover

either compensatory or punitive damages for

constitutional violations unless he can demonstrate a

(more than de minimis) physical injury. See Al-Amin, 637

F.3d at 1198 (punitive); Harris v. Garner (Harris I), 190 F.3d

1279, 1286 (11th Cir. 1999) (compensatory), reh’g en banc

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

opinion reinstated in relevant part, 216 F.3d 970. However,

we have never had the opportunity in a published opinion to

settle the availability of nominal damages under the PLRA.

We do today, and we hold that nothing in § 1997e(e) prevents

a prisoner from recovering nominal damages for a

constitutional violation without a showing of physical injury.

Brooks, 800 F.3d at 1307-08 (emphasis added).

To satisfy § 1997e(e), a prisoner must assert physical injury that is more than de

minimis, but the injury does not need to be significant. See Thompson v. Sec’y, Fla. Dep’t

of Corr., 551 F. App’x 555, 557 (11th Cir. 2014) (citation omitted); Dixon v. Toole, 225 F.

App’x 797, 799 (11th Cir. 2007). Despite § 1997e(e)’s limitation, successful constitutional

claimants who lack a physical injury may still recover nominal damages. See Hughes v.

Lott, 350 F.3d 1157, 1162 (11th Cir. 2003) (“Nominal damages are appropriate if a plaintiff

establishes a violation of a fundamental constitutional right, even if he cannot prove actual

26

injury sufficient to entitle him to compensatory damages.”). Further, the Eleventh Circuit

has instructed courts to dismiss an inmate’s compensatory and punitive damages claims

under § 1997e(e) without prejudice to allow an inmate to refile when and if the inmate is

released. See Harris v. Garner, 216 F.3d 970, 980 (11th Cir. 2000).

Here, Williams asserts physical injuries that are greater than de minimis. The

injuries Williams complains about are allegedly the result of Defendants Galloway and

Rogers’ use of excessive force. See Response at 12-14; Response II at 6-7. He describes

injuries of the type for which a free world person would seek professional medical care as

opposed to home treatments. See id. In a Declaration, he states in pertinent part:

I was seen by [an] unknown male nurse who said he will put

me in to see mental health and wash your eye out and never

examin[ed] me. My eyes w[ere] still hurting and I had blurred

vision for several week[s]. I we[nt] to sick call[,] had to be

treated for worsening my back injury and eyes which I was

order[ed eye drops and put in to see the doctor. Also[,] my

bice[p] was pulled, dislocated and swollen[.] I could not use[]

that arm at all for weeks, because I was unable to workout

(exercise). Body los[t] weight and muscle mass, my shoulder

was injur[]ed also. I was taking pain pills and was order[ed] a

steroid shot to help heal my bicep injury a year later for this

injury and also advised that my arm will not fully heal without

reconstructive surgery or [I] may re[-]rupture my arm again.

I’m unable to even do push up[s] or any kind of muscle

building exercise with that arm, which resulted from carrying

all that property and being slam[med] down.

Williams Decl. at 4-5; see Williams Decl. II at 6-7; see also Complaint at 10, ¶¶ 25-26.

Williams’ alleged injuries, described as eye injuries, aggravated back and shoulder

injuries, and a dislocated bicep leading to months of medical treatment, cross §

1997e(e)’s de minimis threshold. See Thompson, 551 F. App’x at 557 n.3 (describing an

approach of asking whether the injury would require a free world person to visit an

27

emergency room or doctor) (citing Luong v. Hatt, 979 F. Supp. 481, 486 (N.D. Tex. 1997)

(“A physical injury is an observable or diagnosable medical condition requiring treatment

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

abrasion, a bruise, etc., which lasts even up to two or three weeks.”)). Thus, Defendants’

Motions are due to be denied to the extent that the Court finds Williams’ request for

compensatory and punitive damages is not precluded under § 1997e(e) because he

alleges that he suffered physical injuries that are greater than de minimis.

In consideration of the foregoing, it is now

ORDERED:

1. Defendants Inch, Jones, Fernandez, Galloway, Hodgson, Hylda Rogers,

and Drake’s Motion for Partial Summary Judgment (Doc. 84) is GRANTED as to: (1)

Williams’ Eighth Amendment excessive-use-of-force claim against Hylda Rogers; (2)

Williams’ Eighth Amendment failure-to-protect claims against Julie Jones, Mark Inch,

Lester Fernandez, Christopher Hodgson, and G. Drake; and (3) Defendants Fernandez,

Hodgson, Drake, Hylda Rogers, and Jones’ assertions of qualified immunity as to

Williams’ Eighth Amendment claims against them. Otherwise, the Motion is DENIED.

2. Defendant Brittany Rogers’ Amended Motion for Partial Summary

Judgment (Doc. 100) is DENIED.

3. The Clerk shall enter judgment in favor of Defendants Hylda Rogers, Julie

Jones, Lester Fernandez, Christopher Hodgson, and G. Drake and make the appropriate

notations on the docket.

28

4. The parties must confer in good faith to discuss the issues and the

possibility of settlement as to Williams’ remaining claims.** No later than August 25,

2020, the parties must notify the Court whether they are able to reach a settlement. If the

parties are unable to settle the case privately among themselves, they must notify the

Court if they wish to have the case referred to a United States Magistrate Judge for a

settlement conference. Otherwise, the Court will enter a case management order, set a

trial date, and direct the parties to begin trial preparations.

DONE AND ORDERED at Jacksonville, Florida, this 1st day of July, 2020.

United States District Judge

sc 6/25

C:

Quincy A. Williams, FDOC #340902

Counsel of Record

24 The remaining claims are Williams’: (1) First and Eighth Amendment claims

against Defendant Galloway; (2) Eighth Amendment claim against Defendant Brittany

Rogers; and (3) request for declaratory relief against Defendant Inch.

29