McCants v. Jordan

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CHARLES ANTWUAN MCCANTS,

Plaintiff,

v. Case No. 8:17-cv-175-VMC-AEP

WILLIAM J. JORDAN,

DAWON TAYLOR,

DARIEL KINSLEY,

SEAN DZIUBINSKI,

EDWIN BELVIS,

CHRISTINE CUTTITTA,

CAPTAIN MOYER, and

SHERIFF’S OFFICE ADMINISTRATIVE

INVESTIGATION DIVISION,

Defendants.

/

ORDER

This cause comes before the Court on the following motions: Motion for

Summary Judgment of the Sheriff’s Office Administrative Investigation Division

(Doc. 93), Motion for Summary Judgment of Captain Amy Moyer, Lt. Christine

Cuttitta, and Det. Edwin Belvis (Doc. 94), and Motion for Summary Judgment of

Sergeant Dziubinski and Deputies Jordan, Taylor, and Kinsley (Doc. 95). Plaintiff

Charles Antwuan McCants responded (Docs. 97 and 99), and the defendants replied

(Doc. 102). For the foregoing reasons, the summary judgment motions must be

granted.

I. BACKGROUND

Plaintiff Charles Antwuan McCants filed this 42 U.S.C. § 1983 suit, claiming

that his constitutional rights were violated when deputies used excessive force against

him, while he was a pretrial detainee in the Pinellas County Jail. He claims that

deputies lied during a subsequent investigation, which resulted in criminal charges

against him. McCants proceeds on his amended complaint.1

A. Events of January 21, 2016

On January 21, 2016, McCants was being escorted, without handcuffs, by

deputies Jordan, Taylor, and Kinsley, from one housing unit to another in the jail.

During the transfer, McCants was walking down a hallway carrying his belongings

bundled in a blanket. McCants was being moved to another housing unit as a

disciplinary measure for an incident that is unrelated to this lawsuit. 2

1 The Court granted McCants leave to file a second amended complaint; however, he failed to do so.

(Doc. 44) Therefore, the case proceeds on the amended complaint. (Doc. 31)

2 The events of January 21, 2016 were captured on jail cameras. The record contains a DVD with

four videos that show the time periods before, during, and (presumably) after the use of force. The

videos do not contain audio recordings. Video 640 (from the hallway camera, before the use of

force) shows McCants exiting a cell and carrying a large bundle of his belongings, while being

escorted down the hallway by Dep. Jordan. Video 591 (from the table camera, before the use of

force) shows Dep. Jordan unwrap the bundle on a table and search through its contents for

contraband, while McCants and Deputies Taylor and Kinsley stand nearby. McCants then picks up

the bundle and returns to the hallway, while being escorted by the deputies. Video 707 (from the

hallway camera) shows McCants drop the bundle, and the use of force that is the subject matter of

this case follows. (Video 707 was played frame-by-frame at McCants’s deposition. McCants

testified about the events in Video 707, and that transcript is a part of the record.) Finally, Video 739

shows the jail cells (presumably) after use the use of force; no relevant events occur on Video 739.

As he was being escorted, McCants was engaged in a heated verbal exchange

with Dep. Jordan.3 Doc. 94-2 at 30–35; Video 707 at 0:00–0:10. McCants testified

that he was “worked up” and told Dep. Jordan to “stop antagonizing me.” Doc. 94-

2 at 31. Deputies Taylor and Kinsley were not involved in this verbal exchange and

did not say anything to McCants. Id. at 35–36.

Before entering the hallway, Dep. Jordan pointed and gestured at least nine

times in the direction McCants was to walk. Video 591 at 7:30–8:00. After entering

the hallway, Dep. Jordan pointed three times down the hallway, in the direction they

were walking. Video 707 at 0:02–0:09. McCants then stopped walking and dropped

his bundle on the ground.4 Video 707 at 0:10; Doc. 94-2 at 26 and 47. McCants

then turned and faced Dep. Jordan. Video 707 at 0:13; Doc. 94-2 at 27 and 47.

Dep. Jordan instructed McCants to pick up his belongings, and McCants did not

comply. Doc. 94-2 at 27. Dep. Jordan warned McCants that he was going to “count

down,” if McCants refused to pick up his belongings. 5 Doc. 94-2 at 50 and 52. Dep.

Jordan and McCants continued the heated verbal exchange. Doc. 94-2 at 47–49.

3 McCants contends that they were arguing about an event that occurred months earlier. The record

shows that, on September 7, 2015, McCants provided a witness statement to prison authorities, as a

part of an excessive force investigation, in which he reported that Dep. Jordan “went in and tasered

[another inmate]; I think he was sleep [sic].” Doc. 99-1 at 7. McCants claims that Dep. Jordan’s

use of excessive force against him on January 21, 2016 was in retaliation for providing that witness

statement. Doc. 94-2 at 11 and 23.

4 At this point, Deputies Taylor and Kinsley were standing behind McCants, while Dep. Jordan

stood next to McCants. Video 707 at 0:10; Doc. 94-2 at 44.

5 The defendants contend that Dep. Jordan repeatedly commanded McCants to turn and face the

wall so he could be handcuffed; however, McCants denies this fact. Doc. 94-2 at 27. The Court

views this factual dispute in McCants’s favor.

Approximately fourteen seconds passed from when McCants dropped his belongings

on the ground until the use of force occurred. Video 707 at 0:10–0:24.

Dep. Jordan and McCants both leaned in towards each other. Video 707 at

0:15–0:22; Doc. 94-2 at 61. Dep. Jordan repeatedly raised his hands and gestured

toward McCants. Doc. 94-2 at 55. Next, Dep. Jordan reached for McCants’s upper

body with two open hands, in an attempt to turn McCants around. Video 707 at

0:23–0:25; Doc. 94-7 at 3. In response, McCants raised both his hands toward Dep.

Jordan. Id.

The two then began to grapple. Id. Dep. Jordan swung at and missed

McCants with his closed fist. Id. After Dep. Jordan’s initial fist strike missed, he

landed five closed-fist strikes on McCants. Video 707 at 0:25–0:29. The two

continued to be “tangled up,” when Deputies Taylor and Kinsley tried to take hold

of McCants. Doc. 94-2 at 79. Deputies Jordan and Taylor delivered multiple knee

strikes to McCants’s torso. Doc. 94-7 at 3–4. Dep. Kinsley “took control of

McCants’s left arm and attempted to redirect him to the floor.” Doc. 94-7 at 4.

Sgt. Dziubinski appeared on the scene, walking towards the deputies and

McCants, after McCants dropped his belongings, but moments before the use of

force began. Video 707 at 0:19. Throughout the struggle, Sgt. Dziubinksi remained

close by the deputies as they tried to take hold of McCants. At one point, he

unholstered and activated his taser. However, due to the close proximity of the

deputies and McCants, he could not safely deploy it without striking the deputies, so

he powered his taser off, and re-holstered it. Video 707 at 0:29–0:38; Doc. 94-3 at 7.

The deputies remained entangled with McCants as they all fell to the ground.

Video 707 at 0:35. Deputies Jordan and Taylor both deployed their taser during the

struggle. Doc. 94-7 at 3–4. McCants eventually complied with orders to place his

hands behind his back, Deputy Kinsley secured him with handcuffs and shackles,

and he was placed into a restraint chair. Video 707 at 0:35 to 0:45; Doc. 94-7 at 4.

The duration of the use of force was about twenty seconds. Video 707 at 0:24–0:45.

Afterwards, McCants was evaluated by medical personnel, and his face and back

were photographed. Doc. 94-7.

B. McCants’s Grievances and the Investigations into the Events of

January 21, 2016

Sgt. Dziubinski and Deputies Jordan, Taylor, and Kinsley (along with two

lieutenants and a deputy who are not parties to this suit) completed a three-page

report of the incident. Doc. 94-7. In the report, Jordan, Kinsley, and Dziubinski

(but not Taylor) each state that McCants hit Dep. Jordan in his right eye with a

closed fist. Doc. 94-7 at 3–4. Later in the day on January 21, Dep. Jordan wrote

McCants a disciplinary referral for assault and battery. Doc. 94-7 at 3. A

disciplinary committee later conducted a hearing, during which McCants denied

hitting anyone. Doc. 95-1 at 3–12. The committee found McCants guilty and

imposed 30-days disciplinary confinement with loss of privileges. Id.

On January 23, McCants submitted a grievance and request for administrative

remedy. He complained that Dep. Jordan assaulted him on January 21 in retaliation

for his earlier witness statement against the deputy. He sought to be placed in

protective custody and requested that Dep. Jordan be arrested and fired.

Doc. 94-3 at 10.

On January 25, a sergeant (who is not a party to this suit) investigated and

responded to the grievance. In the written response, the sergeant stated that

McCants “failed to relocate as instructed” and “refus[ed] to comply with staff’s

orders to be secured in handcuffs.” As a result, “physical force was utilized to gain

[McCants’s] compliance.” Also, McCants’s claim that Dep. Jordan was insulting

him and cursing could not be validated. Capt. Moyer signed the response as the

division commander. Doc. 94-3 at 11.

On January 26, McCants submitted another grievance and request for

administrative remedy. He complained that Dep. Taylor assisted in assaulting him

and requested that Dep. Taylor be arrested and fired. Doc. 94-3 at 12.

Also on January 26, the Administrative Investigations Division (“AID”)

received a complaint by email from McCants’s mother, claiming that McCants had

been beaten “by the guards.” Doc. 94-3 at 16. Lt. Christine Cuttitta, who was the

division commander of AID, assigned a sergeant in the division to investigate the

complaint. Doc. 94-6 at 1–3. The AID investigation into McCants’s mother’s

complaint involved examining reports, photographs, videos, medical records, and

other jail records, as well as interviewing McCants. Id. at 2. The AID later

concluded that the use of force was justified and that there was no evidence that any

officer violated policy.6 Id. at 3. Lt. Cuttitta approved this conclusion. Id. at 2.

On January 29, a sergeant investigated and responded to the January 26

grievance, concluding that McCants’s complaints were unfounded. Capt. Moyer

again signed the written response, noting that “using the grievance process is not the

appropriate way to pursue criminal charges.” Doc. 94-3 at 13.

On February 4, McCants submitted an appeal from the denial of his previous

grievance against Dep. Jordan. He again complained that Dep. Jordan hit him in

retaliation for his witness statement against Dep. Jordan, and he denied hitting Dep.

Jordan on January 21. He again requested that Dep. Jordan be fired and requested

medical treatment for his back injury. On March 10, McCants was notified that

“[his] complaint was under review by AID.” Doc. 94-3 at 14.

On March 22, McCants submitted another grievance and request for

administrative remedy. In this grievance, he complained that Sgt. Dziubinski lied in

his report when he stated that he witnessed McCants hit Dep. Jordan, he and

requested that Sgt. Dziubinski be disciplined. On March 29, a sergeant responded

that the incident was under review by AID, and Capt. Moyer signed the response as

the division commander. Doc. 99-1 at 32.

Meanwhile, on January 26, Det. Edwin Belvis, who is a corporal in the

Detention Investigations Unit, was assigned to investigate the battery that McCants

6 The AID’s file on the investigation into McCants’s complaint was 110 pages long. It is not a part

of the record. Doc. 94-6 at 2.

was alleged to have committed against Dep. Jordan. Doc. 94-7 at 1. His

investigation included gathering and reviewing videos and photographs and

interviewing witnesses, including a post-Miranda interview of McCants. Id.

Det. Belvis memorialized that investigation in a nine-page report. Doc. 94-3 at 1–9.

Det. Belvis ultimately arrested McCants and criminally charged him with

battery on a law enforcement officer. Doc. 94-7 at 14. McCants later pleaded to,

and was adjudicated guilty of, the lesser-included offense of assault. Doc. 32-2. He

was sentenced to time served. Id. at 3.

C. McCants’s Injuries

McCants testified that Dep. Jordan stuck his finger in McCants’s left eye

during the struggle, and that, as a result, he had blurry vision for a week or two and a

bloodshot eye. Doc. 94-2 at 96–97 and 112–116. One photograph appears to show

minor redness in his right eye.7 Doc. 94-4 at 5.

McCants also testified that his “back got discombobulated” and that a “disc

got slipped in [his] back.” Doc. 94-2 at 112 and 114. On February 5, an x-ray of

McCants’s lumbar spine was conducted. That x-ray revealed “normal alignment of

the lumbar spine” and “no fracture or subluxation.” Doc. 94-3 at 23. McCants

confirmed that no one ever told him that his back problems resulted from the use of

force on January 21. Doc. 94-2 at 131. The following year, on March 25 and

7 The Court declines to credit this testimony because McCants contradicts himself regarding which

eye was injured, and this testimony not substantiated by “uncontroverted video evidence.” Mathis v.

Adams, 577 F. App’x 966 (11th Cir. 2014).

August 16, 2017, McCants complained of back spasms that resulted from the use of

force on January 21, 2016, and requested medical treatment. Doc. 99-1 at 30–31.

Finally, McCants testified that he suffered “head injuries” and was “knocked out.”8

Doc. 94-2 at 115.

II. STANDARD OF REVIEW

A motion for summary judgment looks to “pierce the pleadings and to assess

the proof in order to see whether there is a genuine need for trial.” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted).

“Summary judgment is appropriate if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

there is no genuine [dispute] as to any material fact and that the moving party is

entitled to judgment as a matter of law.” Greenberg v. BellSouth Telecomms., Inc., 498

F.3d 1258, 1263 (11th Cir. 2007) (internal quotation marks omitted); Fed. R. Civ. P.

56(a). “[A] party seeking summary judgment always bears the initial responsibility

of informing the district court of the basis for its motion, and identifying those

portions of [the record] which it believes demonstrate the absence of a genuine

[dispute] of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To

shoulder this burden, the moving party can present evidence to this effect. Id. at

322–23. Or, it can show that the nonmoving party failed to present evidence in

support of an element of its case on which it bears the burden of proof. Id.

8 Nothing in the record substantiates McCants’s testimony that he lost consciousness or had a head

injury as a result of the use of force.

If the moving party meets its burden, the nonmoving party must “go beyond

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

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

for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593–94 (11th Cir. 1995)

(citations omitted). A genuine dispute of material fact exists when the nonmoving

party produces evidence that would allow a reasonable factfinder to return a verdict

in its favor. Greenberg, 498 F.3d at 1263.

“Conclusory, uncorroborated allegations by a plaintiff in an affidavit or

deposition will not create an issue of fact for trial sufficient to defeat a well-supported

summary judgment motion.” Solliday v. Fed. Officers, 413 F. App’x 206, 207 (11th

Cir. 2011)9 (citing Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir.

1990)). The nonmoving party “must do more than simply show that there is some

metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. “A mere

‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there

must be enough of a showing that the [trier of fact] could reasonably find for that

party.” Walker v. Darby, 911 F.2d 1573, 1576–77 (11th Cir. 1990).

A court ruling on a motion for summary judgment must draw all justifiable

factual inferences from the evidence in the nonmoving party’s favor. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Although “pro se complaints are entitled

to a liberal interpretation, . . . a pro se litigant does not escape the essential burden . . .

9 “Unpublished opinions are not considered binding precedent, but they may be cited as persuasive

authority.” 11th Cir. Rule 36-2.

of establishing that there is a genuine [dispute] as to a fact material to his case.”

Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990). “When opposing parties tell

two different stories, one of which is blatantly contradicted by the record, so that no

reasonable jury could believe it, a court should not adopt that version of the facts for

purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S.

372, 380 (2007).

Finally, when a court has the benefit of reviewing a videotape of the incident

at issue, as is the case here, the court should “view[] the facts in the light depicted by

the videotape.” Id. at 381; see also Mathis v. Adams, 577 F. App’x 966 (11th Cir. 2014)

(“In light of the uncontroverted video evidence, the district court was required to

view the facts in the light depicted by the video even if [the plaintiff’s] allegations

contradicted its depiction.”).

III. DISCUSSION

A. Motion for Summary Judgment filed by Defendant Sheriff’s Office

Administrative Investigation Division (Doc. 93)

Defendant Sheriff’s Office Administrative Investigation Division (“AID”)

moved separately for entry of summary judgment. McCants did not respond in

opposition to the motion, although he had sufficient opportunity to do so.

Accordingly, the Court considers the motion unopposed.

McCants alleges that he filed a complaint with the AID and that the “AID

persistently fails to discipline there [sic] employees, which has become a normal

standard and widespread practice within the Pinellas County Jail.” Doc. 31 at 5. At

his deposition, McCants explained his claim against AID, testifying “there was a lot

of excessive force going on inside the county, and a lot of officers getting away with

it without being disciplined for their wrongful acts.” Doc. 94-2 at 18.

AID is entitled to summary judgment because it is not a legal entity subject to

suit. To state a viable Section 1983 claim, the defendant being sued must be an

entity that is subject to being sued. Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir.

1992). The capacity of a party to be sued is “determined by the law of the state in

which the district court is held.” Id. at 1214. “[N]o provision [in Florida] is made

constitutionally or statutorily for a ‘Sheriff’s Office’ as a separate legal entity, as an

agency of the county, or as a corporate entity, nor is a Sheriff’s Office or Department

given authority to be sued in such a name.” Oates v. Jackson County Sheriff’s Office,

No. 5:09-cv-303, 2010 WL 785657, at *2 (N.D. Fla. Mar. 4, 2010); see also Dean, 951

F.2d at 1214 (“Sheriff’s departments . . . are not usually considered legal entities

subject to suit.”).

Similarly, component parts or bureaus of a Sheriff’s Office, such as AID, are

not amenable to suit under Section 1983. Monroe v. Charlotte County Jail, No. 2:15-cv-

729-FtM-99MRM, 2015 WL 7777521, at *4 (M.D. Fla. Dec. 3, 2015) (“The jail is

not an actionable legal entity because it does not enjoy a separate legal existence

independent of the County or the Sheriff’s Office.”); Mellen v. Florida, No. 3:13-cv-

1233-J-34PDB, 2014 WL 5093885, at *8 (M.D. Fla. Oct. 9, 2014) (recognizing that

sheriff’s offices and jail facilities are not amenable to suit under § 1983); Donovan v.

Parker, No. 6:10-cv-855, 2010 WL 3259717, at *2–3 (M.D. Fla. Aug. 16, 2010)

(finding that a sheriff’s office and detention center have no capacity to be sued).

“For claims against a sheriff’s department, the appropriate defendant is the

Sheriff in his official capacity.” Oates, No. 5:09-cv-303, 2010 WL 785657, at *2. In

his original complaint, McCants named both Sheriff Bob Gualtieri and AID as

separate defendants. Doc. 1. The Court dismissed Sheriff Gualtieri from the case

sua sponte under 28 U.S.C. § 1915A because McCants attempted to hold Sheriff

Gualtieri liable under the theory of respondeat superior, which is not actionable in

Section 1983 complaints. Doc. 5 at 4. The amended complaint does not contain a

claim for relief against Sheriff Gualtieri, and he is no longer a party to this suit.

Additionally, AID is entitled to summary judgment because McCants failed to

assert a cognizable claim against the entity. McCants’s only allegations against this

defendant are that he filed a complaint with AID and that AID’s failure to discipline

its employees is a widespread practice. McCants failed to assert any claim for relief

against AID. Nor does he allege any facts that could establish AID’s liability. His

general assertion that AID failed to discipline its employees is unsupported in the

record and insufficient to survive summary judgment.10 Brown, 906 F.2d at 670 (“[A]

pro se litigant does not escape the essential burden . . . of establishing that there is a

genuine [dispute] as to fact material to his case[.]”).

10 McCants filed affidavits by inmates Prachak Khamdaranikone, Brice D. Wright, and Germaine

Harris, in which they generally state that they witnessed detention officers beat and abuse prisoners

in the Pinellas County Jail. Doc. 99-1 at 44–48. These affidavits do not contain any details specific

to McCants’s claims, nor do they raise a genuine dispute of material fact on any of McCants’s

claims.

Accordingly, AID is entitled to entry of summary judgment because (1) its

summary judgment motion is unopposed, (2) AID is not a legal entity subject to suit,

and (3) McCants failed to assert a cognizable claim for relief against AID.

B. Motion for Summary Judgment filed by Captain Amy Moyer,

Lieutenant Christine Cuttitta, and Det. Edwin Belvis (Doc. 94)

McCants’s only claim for relief against defendants Capt. Amy Moyer, Lt.

Christine Cuttitta, and Det. Edwin Belvis is for conspiracy under the Fourteenth

Amendment, made actionable by 42 U.S.C. § 1985. Doc. 31 at 2 (citing Section

1985 as the basis for the conspiracy claim). These defendants moved together for

entry of summary judgment on the conspiracy claim, and McCants opposes the

motion.

McCants alleges that Capt. Moyer and Lt. Cuttitta “failed to prevent when

they both had knowledge of the various wrongs conspired to be done,” and that they

“possessed the power to prevent or aid in preventing them to be done, but instead

overlook[sic] it and did nothing.” Doc. 31 at 13. At his deposition, McCants

explained his claim against Capt. Moyer, testifying that she did not handle his

grievances properly as the investigator in the grievance process, and that if she had

done so, he would not have been charged with battery on a law enforcement officer.

Doc. 94-2 at 16–17. He testified, “I feel like she didn’t review the DVR footage and

review statements correctly to be able to prevent the wrongdoings.” Id. at 16.

Similarly, he explained his claim against Lt. Cuttitta testifying, “[s]he didn’t prevent

it, stop it, or aided me in helping me not being charged falsely by false allegations

that they made inside their police reports when she had the knowledge and evidence

to stop it and prevent it.” Id. at 14.

McCants alleges that Det. Belvis “conspired with the other defendants and

wrote false statements within the police reports that he viewed [McCants] strike

Jordan.” Doc. 31 at 7. He alleges that “the DVR footage never shows me hitting

Jordan like they all say within their police reports” and that “Belvis then arrested

[him] for battery on [a law enforcement officer].” Id. He alleges that Belvis and the

other defendants “conspired to cover-up the excessive force by writing false

statements within their police reports.” Id. at 13. At his deposition, McCants

confirmed that his only allegation against Belvis was that he falsely reported that

McCants battered Dep. Jordan. Doc. 94-2 at 13–14.

To prevail on a Section 1985 conspiracy claim, a plaintiff must prove: “(1) a

conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person

or class of persons of the equal protection of the laws, or of equal privileges and

immunities under the laws; and (3) an act in furtherance of the conspiracy; (4)

whereby a person is either injured in his person or property or deprived of any right

or privilege of a citizen of the United States.” Park v. City of Atlanta, 120 F.3d 1157,

1161 (11th Cir. 1997). A panel of the Eleventh Circuit recently explained the

requirements of a Section 1985 conspiracy claim:

Section 1986 provides a cause of action against anyone who has

“knowledge that any of the wrongs conspired to be done, and

mentioned in section 1985 of this title, are about to be

committed, and having the power to prevent or aid in

preventing the commission of the same, neglects or refuses so to

do.” 42 U.S.C. § 1986. Thus, “[t]he text of § 1986 requires the

existence of a § 1985 conspiracy.” Park v. City of Atlanta, 120

F.3d 1157, 1160 (11th Cir. 1997). Section 1985, in turn,

provides a cause of action against anyone who, among other

things, conspires for “the purpose of impeding, hindering,

obstructing, or defeating, in any manner, the due course of

justice in any State or Territory, with intent to deny to any

citizen the equal protection of the laws,” 42 U.S.C. § 1985(2),

or for the purpose of depriving “any person or class of persons

of the equal protection of the laws, or of equal privileges and

immunities under the laws,” 42 U.S.C. § 1985(3). Both of these

provisions “require[] an allegation of class-based animus for the

statement of a claim.” Chavis v. Clayton Cnty. Sch. Dist., 300

F.3d 1288, 1292 (11th Cir. 2002) (concerning § 1985(2)); Park,

120 F.3d at 1161–62 (concerning § 1985(3)).

Grappell v. Carvalho, 2021 U.S. App. LEXIS 6043, at * 4–5 (11th Cir. Mar. 2, 2021)

(affirming the dismissal with prejudice of §§ 1985 and 1986 claims because the

plaintiff failed to plead that the alleged wrongdoing was motived by racial or class-

based animus and the existence of a joint agreement between the defendants).

Importantly, the plaintiff must show “(1) that some racial, or perhaps otherwise

class-based, invidiously discriminatory animus lay behind the conspirators’ action,

and (2) that the conspiracy aimed at interfering with rights that are protected against

private as well as official encroachment.” Bray v. Alexandria Women’s Health Clinic,

506 U.S. 263, 267–78 (1993) (citations and alterations omitted).

The record contains no evidence, beyond McCants’s vague and conclusory

accusations, of an agreement among any of the defendants to falsely report that

McCants hit Dep. Jordan in order to cover up the use of excessive force by deputies

on January 21, 2016. Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984) (“In

conspiracy cases, . . . [i]t is not enough to simply aver in the complaint that a

conspiracy existed.”). McCants merely makes the conclusory allegation that Capt.

Moyer and Lt. Cuttitti had “knowledge” and “evidence” of “wrongs conspired to be

done,” but failed to prevent them. He also vaguely alleges that Det. Belvis

“conspired and wrote false statements within his reports.” However, beyond these

conclusory assertions, McCants presents no evidence of a conspiratorial agreement

among any of the defendants. “[M]ere verification of a party’s own conclusory

allegations is not sufficient to oppose a motion for summary judgment.” Id. (noting

that “one of the purposes of the summary judgment mechanism . . . is to unmask

frivolous claims and put a swift end to meritless litigation”).

Furthermore, McCants does not allege, and the record does not contain any

evidence, “that the defendants’ allegedly wrongful conduct . . . was motivated by

racial or class-based animus.” Grappell, 2021 U.S. App. LEXIS 6043, at * 6. There

is simply no evidence of the required class-based animus.11 Byrd v. Clark, 783 F.2d

1002, 1007 (11th Cir. 1986) (affirming summary judgment on a Section 1985

11 McCants filed the unsworn affidavit of Alexis Green in support of his opposition to summary

judgment. Doc. 97 at 22. Green, whose relationship to McCants is unknown, was not present for

the events at issue in this case; rather, she viewed the DVR footage of the incident, read officer

statements, and emailed Lt. Cuttitta about the incident. Green describes what she viewed in the

DVR footage. She also states that Lt. Cuttitta failed to respond properly to the incident and the

officers’ false reports about the incident. The affidavit does not contain any evidence of a

conspiratorial agreement among the defendants or class-based animus, nor does it raise a genuine

dispute of material fact concerning any of McCants’s claims.

McCants also filed email correspondence between his mother and Lt. Cuttitta. Doc. 97 at

16–20. In these emails, Lt. Cuttitta notified McCants’s mother that an AID investigation into her

complaint had been initiated. McCants’s mother notified Lt. Cuttitta that that battery on law

enforcement officer charge against McCants had been dismissed. The email correspondence does

not contain any evidence of a conspiratorial agreement among the defendants or class-based animus,

nor does it raise a genuine dispute of material fact concerning any of McCants’s claims.

conspiracy claim when “there was no evidence of concerted action” and the record

did not “reflect any racial or class-based animus.” Accordingly, Capt. Moyer, Lt.

Cuttitta, and Det. Belvis are entitled to summary judgment on McCants’s Section

1985 conspiracy claim.12

C. Motion for Summary Judgment of Sergeant Dziubinski and Deputies

Jordan, Taylor, and Kinsley (Doc. 95)

McCants alleges that Deputies Jordan, Taylor, and Kinsley used excessive

force when he was not resisting their attempt to restrain him, while Sergeant

Dziubinski failed to intervene to stop the excessive force. He also alleges that Dep.

12 McCants’s claim fares no better if it is construed under 42 U.S.C. § 1983. “To state a claim for

conspiracy under § 1983, a plaintiff must allege that (1) the defendants reached an understanding

that they would deny the plaintiff one of his constitutional rights; and (2) the conspiracy resulted in

an actual denial of one of his constitutional rights.” Weiland v. Palm Beach Cty. Sheriff’s Office, 792

F.3d 1313, 1327 (11th Cir. 2015). Again, there is no evidence of a conspiratorial agreement among

the defendants to violate McCants’s constitutional rights.

Alternatively, McCants cannot sustain a Section 1983 claim against defendants Moyer,

Cuttitta, and Belvis because he did not file grievances against these defendants, and therefore, failed

to exhaust his administrative remedies. Porter v. Nussle, 534 U.S. 516, 524 (2002) (“[A]ll ‘available’

remedies must now be exhausted; those remedies need not meet federal standards, nor must they be

plain, speedy, and effective.”).

“The [Prison Litigation Reform Act]’s exhaustion requirement serves to provide prison

officials the opportunity to resolve complaints internally before being subject to suit, reduce litigation

to the extent complaints are satisfactorily resolved, and improve the litigation that does occur by

creating an administrative record.” Nolley v. Warden, 820 F. App’x 845, 853 (11th Cir. 2020)

(affirming dismissal when the plaintiff never filed a grievance). “To satisfy the exhaustion

requirement, a prisoner must complete the administrative process in accordance with the applicable

grievance procedures set by the prison.” Id. “The prison’s requirements, rather than the PLRA,

dictate the level of detail necessary for proper exhaustion.” Id.

McCants does not dispute that he did not file grievances against these defendants. Rather,

he argues that administrative remedies were unavailable to him because (1) the AID “froze” the

matter and (2) once he was transferred to prison, he could not pursue a grievance because the prison

“has a different system.” Doc. 97 at 8. These arguments are unsupported in the record, and he fails

to explain why he did not employ the prison grievance process.

Jordan’s use of force violated his First Amendment free speech rights because the use

of force was in retaliation for McCants submitting a witness statement against him in

connection with a prior incident. Finally, he alleges that these defendants conspired

to cover-up the excessive force by falsely reporting that he struck Dep. Jordan during

the January 21, 2016 incident.13 Defendants Sgt. Dziubinski and Deputies Jordan,

Taylor, and Kinsley together moved for entry of summary judgment on all of these

claims, asserting a qualified immunity defense. McCants opposes their motion.

1. Excessive Force and Failure to Intervene

Preliminarily, McCants argues that the defendants rely upon the wrong legal

standards. Doc. 99 at 12. “[T]he first step in any § 1983 analysis requires

identification of the precise right that is alleged to have been violated.” Alcocer v.

Mills, 906 F.3d 944, 947 (11th Cir. 2018) (citations omitted). “Different rights

prescribe different legal analyses, so accurately diagnosing the right at issue is critical

to properly analyzing a § 1983 plaintiff’s claims.” Id. Furthermore, “[f]ederal courts

have long recognized that they have an obligation to look behind the label of a

[pleading] filed by a pro se inmate and determine whether [it] is, in effect, cognizable

under a different remedial statutory framework.” Gooden v. United States, 627 F.3d

13 The amended complaint also contained claims for false arrest, malicious prosecution, assault, and

battery. McCants voluntarily dismissed his false arrest and malicious prosecution claims. Doc. 41

at 3–4. McCants appears to have abandoned his assault and battery claims; nevertheless, McCants

cannot proceed on these claims because “as a matter of law, the state torts of assault and battery are

not a cognizable basis for a § 1983 claim.” Brown v. Hillsborough County Sheriff’s Office, No. 8:08-cv-

88-T-33TGW, 2009 U.S. Dist. LEXIS 16735, at *9 (M.D. Fla. Feb. 18, 2009). Alternatively, these

claims lack merit for the same reasons explained herein that apply to McCants’s excessive force

claims.

846, 847 (11th Cir. 2010) (citation omitted). Castro v. United States, 540 U.S. 375,

381–82 (2003) (citations omitted), instructs that the purpose for looking beyond the

label a pro se litigant attaches to a pleading is “to avoid an unnecessary dismissal, to

avoid inappropriately stringent application of formal labeling requirements, or to

create a better correspondence between the substance of a pro se [pleading]’s claim

and its underlying legal basis.”

McCants asserts his excessive force and failure to intervene claims under the

Fourth and Fourteenth Amendments. “The Fourth Amendment’s freedom from

unreasonable searches and seizures encompasses the plain right to be free from the use of

excessive force in the course of an arrest.” Lee v. Ferraro, 284 F.3d 1188, 1197 (11th

Cir. 2002). The Eighth Amendment provides a freedom from cruel and unusual

punishments, and it “serves as the primary source of protection against excessive force

after conviction.” Piazza v. Jefferson Cnty., Ala., 923 F.3d 947, 952 (11th Cir. 2019)

(citations omitted). And, the Fourteenth Amendment “protects those who exist in the in-

between—pretrial detainees.” Id. Here, McCants asserts (and the defendants do not

dispute) that he was a pretrial detainee in the Pinellas County Jail, when the alleged

excessive force occurred. Therefore, his claims must be analyzed under the Fourteenth

Amendment. Mathews v. Wetherbee, 2020 U.S. App. LEXIS 40839, at *2 (11th Cir.

Dec. 31, 2020) (“[A] pretrial detainee has a right under the Fourteenth Amendment to not

be exposed to excessive force.”).

“Qualified immunity . . . protects a defendant from liability in a § 1983 claim

arising from discretionary acts, as long as those acts do not violate clearly established . . .

constitutional rights of which a reasonable person would have known.” Id. (citations

omitted). McCants does not appear to dispute that the defendants were performing

discretionary acts during the events giving rise to his claims (and therefore has

abandoned any argument to the contrary); rather, his argument is focused on the

second part of the analysis. Nevertheless, the Court concludes that the defendants’

conduct of restraining McCants while he resisted instructions to pick up his

belongings, proceed down the hallway, and relocate to another cell falls within the

scope of their discretionary authority. Crosby v. Monroe County, 394 F.3d 1328, 1332

(11th Cir. 2004) (defining discretionary function as an official act that “[falls] within

the employee’s job responsibilities”); McCoy v. Webster, 47 F.3d 404, 407 (11th Cir.

1995) (defining discretionary authority broadly to include all acts undertaken in

performance of duties within scope of official’s authority). Therefore, the burden

shifts to McCants to demonstrate a violation of his clearly-established constitutional

rights. Mathews, 2020 U.S. App. LEXIS 40839, at * 2 (“Once an official

demonstrates that he was performing a discretionary function, the plaintiff must

show that the defendant is not entitled to summary judgment on qualified immunity

grounds.”).

“To show that a defendant is not entitled to summary judgment on qualified

immunity grounds, the plaintiff must show that a reasonable jury could find both that the

defendant violated a constitutional right and that the constitutional right was clearly

established.” Id. at *3. “[A] right may be clearly established for qualified immunity

purposes through: (1) case law with indistinguishable facts clearly establishing a

constitutional right; (2) a broad statement of principle within the Constitution, statute, or

case law that clearly establishes a constitutional right; or (3) the conduct was so egregious

that a constitutional right was clearly violated, even in the complete absence of case law.”

Id. “Exact factual identity with a previously decided case is not required,” but rather, the

key inquiry is whether the law provided the official with “fair warning” that his conduct

violated the constitution. Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011)

(citations omitted). This inquiry “must be undertaken in light of the specific context of

the case, not as a broad general proposition.” Id. (citations omitted). “However, if there

is no caselaw directly on point, general statements of the law and the reasoning of prior

cases may provide fair warning of unlawful conduct if they ‘clearly apply’ to the novel

factual situation at issue.” Mathews, 2020 U.S. App. LEXIS 40839, at * 4 (citing

Mercado v. City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005)).

“To determine whether a pretrial detainee’s right to be free from the use of

excessive force under the Fourteenth Amendment has been violated, he must show that

the force used against him was objectively unreasonable, which is a fact-specific

inquiry.” Id. at *4 (citing Kingsley v. Hendrickson, 576 U.S. 389 (2015)). “’A court

must make this determination from the perspective of a reasonable officer on the scene,

including what the officer knew at the time, not with the 20/20 vision of hindsight,’

taking into account the government’s need to manage the facility and deferring to policies

and practices officials use to preserve order, discipline, and security.” Id. at *4 (citing

Kingsley, 576 U.S. at 397). “Considerations in determining the reasonableness of force

include: the relationship between the need for force and amount used; the extent of the

injury; efforts made by the officer to limit the amount of force; the severity of the security

problem; the threat reasonably perceived by the officer; and whether the plaintiff was

actively resisting.” Id. at * 4–5 (citing Kingsley factors). “Kingsley directs [the courts] to

weigh the relationship between the need for the use of force and the amount of force

used.” Patel v. Lanier Cty. Ga., 969 F.3d 1173, 1183 (11th Cir. 2020) (citation omitted).

“In cases with multiple named defendants, each defendant is entitled to an

independent qualified immunity analysis as it relates to his actions.” Mathews, 2020

U.S. App. LEXIS 40839 at *2.

a. Deputy Jordan

Dep. Jordan and McCants were engaged in a heated verbal exchange, while

McCants was being escorted by the deputies without handcuffs down the hallway.

Dep. Jordan repeatedly gestured in the direction McCants was to proceed. McCants

stopped walking, dropped his property to the ground, and turned to face Dep.

Jordan. McCants refused to comply with Dep. Jordan’s instruction to pick up his

belongings, even after Dep. Jordan warned McCants that he was going to “count

down,” if he refused. Dep. Jordan delivered five closed-fist strikes and multiple knee

strikes and deployed his taser on McCants. Eventually, the deputies succeeded in

subduing McCants, and Dep. Jordan assisted in placing McCants into a restraint

chair.

Dep. Jordan’s use of force was not unconstitutional. Applying the Kingsley

factors, the amount of force he used did not outweigh the need for the force. During

a heated verbal exchange, McCants was actively resisting Dep. Jordan’s instructions

to continue down the hallway, dropped his belongings, and turned to face Dep.

Jordan. Approximately fourteen seconds passed, from when McCants dropped his

belongings until the use of force began, during which time he had an opportunity to

comply with Dep. Jordan’s instructions, but refused. McCants posed a threat to

Dep. Jordan because they were engaged in a heated verbal exchange that escalated

when McCants dropped his belongings and turned to face Dep. Jordan. Dep. Jordan

applied force by striking McCants five times, delivering multiple knee strikes, and

tasering him. This force occurred only after verbal attempts to gain McCants’s

compliance failed and McCants continued to resist. Furthermore, although

McCants vehemently disputes that he hit Dep. Jordan during the struggle, whether

he did so is immaterial because McCants continued to resist and because his conduct

was, at a minimum, an assault: McCants pleaded to, and was adjudicated guilty of,

that crime.

The record shows the extent of McCants’s injuries was minimal, and he

requested medical treatment for his back in only one of his multiple grievances. The

record also shows that Dep. Jordan attempted to limit the amount of force because

once McCants stopped resisting and the deputies gained control of him, Dep. Jordan

stopped applying force. And, the duration of the use of force was about twenty

seconds. This is not a case where officers continued to apply force after an inmate

was no longer resisting. See Piazza, 923 F.3d at 953 (noting that once the prisoner

stops resisting there is no longer a need to apply force). Rather, despite McCants’s

assertions to the contrary, the video recording of the incident shows that McCants

was continuing to resist, and that the use of force stopped once the deputies obtained

control over him. “Although [the court] review[s] the evidence in the light most

favorable to [McCants] (the non-moving party), [the court does] not accept his

version of the facts when obviously contradicted by the record,” including “a video

of the entire event.” McCroden v. Cty. of Volusia, 724 F. App’x 768, 771 (11th Cir.

2018).

Additionally, it was not clearly established in January of 2016 that Dep.

Jordan’s use of force was unconstitutional. McCants cites numerous cases to set

forth the applicable legal standards for qualified immunity in this context. However,

he has not “point[ed] to law as interpreted by the Supreme Court, the Eleventh

Circuit, or the Supreme Court of Florida” to show that the alleged constitutional

violation was clearly established at the time of the events in question. Mercado, 407

F.3d at 1159. None of the cases McCants cites is “materially similar to the facts in

this case or truly compels the conclusion that [McCants] had a right established

under [the law].” Id. (citations omitted).

To the contrary, cases instruct that officers may use force to restrain a resisting

inmate. See e.g., Piazza, 923 F.3d at 955 (noting that “we don’t question [the officer’s]

split-second decision to deploy his taser once following several unsuccessful attempts

to lead [the plaintiff] into his cell” but finding the second taser was excessive because

the first taser immobilized the plaintiff); McCroden, 724 F. App’x at 771 (affirming

qualified immunity when the officers used an “arm-bar takedown” to restrain a

resisting prisoner); Mobley v. Palm Beach Cty. Sheriff Dep’t, 783 F.3d 1347, 1351, 1355

(11th Cir. 2015) (in a Fourth Amendment case, concluding officers’ use of force in

striking, kicking, and tasing the suspect was not excessive where the suspect, though

pinned on the ground, was “refusing to surrender his hands to be cuffed”);

Zivojinovich v. Barner, 525 F.3d 1059, 1073 (11th Cir. 2008) (in a Fourth Amendment

case, concluding that “in a difficult, tense and uncertain situation the use of a taser

gun to subdue a suspect who has repeatedly ignored police instructions and

continues to act belligerently toward police is not excessive force”) (citations

omitted). Accordingly, Dep. Jordan is entitled to qualified immunity on McCants’s

excessive force claim.

b. Deputy Taylor

Deputy Taylor escorted McCants, along with the other deputies, down the

hallway. He did not engage in the verbal exchange between McCants and Dep.

Jordan. He delivered multiple knee strikes to McCants, once deployed his taser, and

assisted in placing McCants in the restraint chair.

Deputy Taylor’s use of force was not unconstitutional. Again, applying the

Kingsley factors, Dep. Taylor’s use of force did not outweigh the need for the force.

Dep. Taylor observed McCants actively resisting Dep. Jordan’s repeated instructions

to continue down the hallway, dropping his belongings, and turning to face Dep.

Jordan. Dep. Taylor perceived the threat that McCants posed when he dropped his

belongings and turned to face McCants. When McCants continued to resist Dep.

Jordan’s commands, Dep. Taylor assisted in gaining McCants’s compliance by

applying multiple knee strikes and deploying his taser. This force occurred only after

verbal attempts to gain McCants’s compliance failed, and once the deputies obtained

control over McCants, the use of force stopped. McCants’s injuries were minimal.

Additionally, it was not clearly established in January of 2016 that Dep.

Taylor’s use of force was unconstitutional. Again, McCants has not cited any

authority that demonstrates that Dep. Taylor was on notice that his use of force

violated clearly-established law. Instead, cases show that officers may use force to

restrain a resisting inmate. Accordingly, Dep. Taylor is entitled to qualified

immunity on McCants’s excessive force claim.

c. Deputy Kinsley

Deputy Kinsley escorted McCants, along with the other deputies, down the

hallway. He did not engage in the verbal exchange between McCants and Dep.

Jordan. The record does not show that Deputy Kinsley delivered any hits or knee

strikes, nor that he tased McCants. Rather, the record shows that Dep. Kinsley

assisted the other deputies by taking control of McCants’s arm and attempting to re-

direct him to the floor. Dep. Kinsley placed McCants in handcuffs and shackles and

assisted in placing him in the restraint chair. McCants does not point to any specific

use of force applied by Dep. Kinsley that violated his constitutional rights.

Deputy Kinsley’s use of force was not unconstitutional. Applying the Kingsley

factors, Dep. Kinsley’s minimal use of force did not outweigh the need for force,

when McCants was actively resisting the deputies. Additionally, it was not clearly

established in January of 2016 that Dep. Kinsley’s use of force, in assisting the

deputies by taking control of McCants’s arm and placing McCants in handcuffs,

shackles, and later, a restraint chair, was unconstitutional. McCants has not cited

any authority that demonstrates that Dep. Kinsley was on notice that his use of force

violated clearly-established law. Instead, cases show that officers may use force to

restrain a resisting inmate. Accordingly, Dep. Kinsley is entitled to qualified

immunity on McCants’s excessive force claim.

d. Sergeant Dziubinski

Finally, McCants contends that Sgt. Dziubinksi had a duty to intervene when

Deputies Jordan, Taylor, and Kinsley used excessive force on him. Sgt. Dziubinski

arrived moments before the use of force occurred. Although the defendants contend

Sgt. Dziubinski did not have an opportunity to intervene because he arrived after the

use of force began, Sgt. Dziubinski’s own report of the incident contradicts that

assertion. Throughout the struggle, Sgt. Dziubinksi remained close to the deputies as

they tried to take hold of McCants. He prepared to deploy his taser, but ultimately

did not do so.

“If a police officer, whether supervisory or not, fails or refuses to intervene

when a constitutional violation such as an unprovoked beating takes place in his

presence, the officer is directly liable under Section 1983.” Byrd, 783 F.2d at 1007.

Furthermore, “that a police officer had a duty to intervene when he witnessed the use

of excessive force and had the ability to intervene was clearly established in February

1994.” Helm v. Rainbow City, __ F.3d__, 2021 U.S. App. LEXIS 6929, at * 27 (11th

Cir. Mar. 10, 2021) (published opinion) (citing Priester v. City of Riviera Beach, 208

F.3d 919, 927 (11th Cir. 2000). “Of course, there also must be an underlying

constitutional violation. Plainly, an officer cannot be liable for failing to stop or

intervene when there was no constitutional violation being committed.” Sebastian v.

Ortiz, 918 F.3d 1301, 1312 (11th Cir. 2019) (citations omitted) (noting that “the

failure to intervene claim is . . . wholly dependent on the underlying excessive force

claim”). Because the deputies did not use excessive force on McCants, there can be

no derivative failure to intervene claim against Sgt. Dziubinski.14

It follows that it was not clearly established in January of 2016 that Sgt.

Dziubinski was required to intervene under the circumstances of this case. No

precedent would have put Sgt. Dziubinski on notice that he was constitutionally

obligated to intervene with the deputies’ attempts to restrain a resisting prisoner.

Accordingly, Sgt. Dziubinski is entitled summary judgment because no underlying

unconstitutional conduct occurred that would support McCants’s failure to intervene

claim against him. And, Sgt. Dziubinski is entitled to qualified immunity on

McCants’s failure to intervene claim.

2. First Amendment Retaliation Claim

McCants also alleges that Dep. Jordan violated his First Amendment free

speech rights by retaliating against him for submitting a witness statement against

him in connection with a prior incident. “The First Amendment forbids prison

14 McCants’s claims against Sgt. Dziubinski and Dep. Kinsley are barred for the additional

reason that he failed to exhaust his administrative remedies against these defendants. McCants does

not dispute that he failed to file a grievance against Dep. Kinsley and failed to appeal the denial of

his grievance against Sgt. Dziubinski. Rather, he argues that administrative remedies were

unavailable to him because (1) the AID “froze” the matter and (2) once he was transferred to prison,

he “was unable to really pursue” a grievance. Doc. 99 at 14. These arguments are unsupported in

the record, and he fails to explain why he did not employ the prison grievance process.

officials from retaliating against prisoners for exercising the right of free speech.”

Farrow v. West, 320 F.3d 1235, 1248 (11th Cir. 2003). 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 [deputy]’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 and the

protected speech.” Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008). Regarding

the causation prong, the court “asks whether the defendants were subjectively

motivated” by the plaintiff’s protected act. Id. at 1278. To establish causation, a

plaintiff must “do more than make general attacks on a defendant’s motivations and

must articulate affirmative evidence of retaliation to prove the requisite motive.”

Jackson v. Warden, No. 16-16107-E, 2018 U.S. App. LEXIS 34417, at *2 (11th Cir.

Dec. 6, 2018) (citations omitted). A temporal relationship between the protected

activity and adverse action can constitute circumstantial evidence of causation, but in

the absence of other evidence, “temporal proximity must be very close.” Hidgon v.

Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004).

The record shows that, on September 7, 2015, approximately four months

before the use-of-force incident at issue here, McCants provided a witness statement

to prison authorities, as a part of an excessive force investigation, in which he

reported that Dep. Jordan tased another inmate while the inmate was asleep.

However, the record is devoid of any evidence from which a reasonable fact finder

could infer retaliation as the motivating factor for Dep. Jordan’s use of force four

months later. Rather, the record shows that Dep. Jordan applied force in order to

restrain McCants who was defying his commands. McCants makes nothing more

than a conclusory allegation that Dep. Jordan was motivated to “get [McCants] back

for ‘snitching’ on him.” Doc. 31 at 4. The lapse of time between the two events cuts

against a causal connection. Accordingly, Dep. Jordan is entitled to summary

judgment on McCants’s retaliation claim.

3. Conspiracy Claim

Finally, McCants alleges that Sgt. Dziubinski and Deputies Jordan, Taylor,

and Kinsley conspired to cover-up the use of excessive force by falsely reporting that

he hit Dep. Jordan during the January 21, 2016 incident. This conspiracy claim fails

because the record contains no evidence, beyond McCants’s vague and conclusory

allegations, of a conspiratorial agreement among any of the defendants. McCants

merely argues that that these defendants “clearly reached an understanding to write

the false statement” because the video does not show him striking Dep. Jordan.

Doc. 99 at 18. Whether these defendants were incorrect or lied when they reported

that McCants hit Dep. Jordan is immaterial because there is no evidence of an

agreement among them to do so.15 Accordingly, Sgt. Dziubinski and Deputies

Jordan, Taylor, and Kinsley are entitled to entry of summary judgment on

McCants’s conspiracy claim.

15 McCants’s conspiracy claim against Dep. Taylor fails for the additional reason that, contrary to

McCants’s assertions, he did not report that McCants hit Dep. Jordan. Doc. 94-7 at 4.

IV. CONCLUSION

For the foregoing reasons, the following motions are hereby GRANTED:

Motion for Summary Judgment of the Sheriff's Office Administrative Investigation

Division (Doc. 93), Motion for Summary Judgment of Captain Amy Moyer, Lt.

Christine Cuttitta, and Det. Edwin Belvis (Doc. 94), and Motion for Summary

Judgment of Sergeant Dziubinski and Deputies Jordan, Taylor, and Kinsley (Doc.

95). The Clerk is directed to enter final judgment in favor of defendants William

Jordan, Dawon Taylor, Dariel Kinsley, Sean Dziubinski, Edwin Belvis, Christine

Cuttitta, Amy Moyer, and Sheriff's Office Administrative Investigation Division.

All of McCants’s claims against all defendants have been resolved; therefore, the

Clerk is directed to CLOSE this case.

DONE and ORDERED in Chambers in Tampa, Florida, this 21* day of

April, 2021.

ge Heeler,

UNITED STATES DISTRICT JUDGE

32