Rice v. Florida Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

LARYSSA RICE, individually, and as

Personal Representative for the Estate

of Travis Rice, deceased,

Plaintiff,

v. Case No. 3:20-cv-1206-BJD-PDB

FLORIDA DEPARTMENT OF

CORRECTIONS et al.,

Defendants.

_____________________________________

ORDER

I. Status

Plaintiff, Laryssa Rice, individually and as personal representative for

the estate of Travis Rice, a former prisoner of the Florida Department of

Corrections (FDOC), is proceeding on a complaint under state law (for wrongful

death) and federal law (for the violation of constitutional rights) against the

FDOC and seven corrections officers of different rank based on an incident that

occurred at Hamilton Correctional Institution (HCI) (Doc. 6; Compl.). Plaintiff

initiated this action in the Circuit Court for the Third Judicial Circuit. Six of

the officers who are represented by the same counsel removed the case to this

Court. See Notice of Removal (Doc. 1); Amended Notice of Removal (Doc. 9).

The seventh officer, Sergeant Derek Johnson, has not been served.

Before the Court are the following motions to dismiss: Sergeant Edwardo

Miller’s (Doc. 12; Miller Motion); Sergeant James Creamer’s (Doc. 13; Creamer

Motion); Sergeant Nicholas McCoy’s (Doc. 14; McCoy Motion); Sergeant Jaimy

Hancock’s (Doc. 15; Hancock Motion); Sergeant James Hardee’s (Doc. 16;

Hardee Motion); and Captain Jason Yetton’s (Doc. 17; Yetton Motion).1

Because the officers raise the same defenses, and the facts against them “are

inextricably intertwined,” Plaintiff opposes the motions in a consolidated

response (Doc. 19; Pl. Resp.).2

II. Motion to Dismiss Standard

“To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on

its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Lotierzo v.

Woman’s World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). “A claim

has facial plausibility when the plaintiff pleads factual content that allows the

1 The FDOC answered the complaint (Doc. 7).

2 Plaintiff designates the response as one in opposition to only five motions:

those filed by Defendants Miller, Creamer, McCoy, Hardee, and Yetton. See Pl. Resp.

at 1, 2. It appears Plaintiff also intended to respond in opposition to Defendant

Hancock’s motion to dismiss because Plaintiff’s counsel docketed the filing as a

response to all six motions and, in the response, references Defendant Hancock and

points to allegations directed to him. Id. at 2 n.1, 7 n.3, 7, 8.

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court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678. A plaintiff should allege enough

facts “to raise a reasonable expectation that discovery will reveal evidence”

supporting the plaintiff’s claims. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556

(2007).

Though detailed factual allegations are not required, Federal Rule of

Civil Procedure 8(a) demands “more than an unadorned, the-defendant-

unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. As such, a plaintiff

may not rely on “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements.” Gill as Next Friend of K.C.R. v.

Judd, 941 F.3d 504, 511 (11th Cir. 2019) (quoting Iqbal, 556 U.S. at 678).

Rather, the well-pled allegations must nudge the claim “across the line from

conceivable to plausible.” Twombly, 550 U.S. at 570. In assessing the

sufficiency of a complaint, all reasonable inferences should be drawn in favor

of the plaintiff. Iqbal, 556 U.S. at 678.

III. Complaint Allegations

Accepting Plaintiff’s allegations as true and construing them in the light

most favorable to her, Travis Rice “was strangled to death by correctional

officers during his incarceration [at HCI] on September 4, 2018.” See Compl. ¶

19. Plaintiff alleges the seven officer-defendants reported to Mr. Rice’s

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dormitory together, but the reason they did so is unknown. Id. ¶ 25. Some

reports indicate Mr. Rice was asking his fellow inmates for help in a “non-

violent and non-threatening” manner, but the officers reported to the Office of

the Inspector General (IG) and in their use-of-force summaries that Mr. Rice

was combative and possibly under the influence of synthetic cannabis. Id. ¶¶

25, 37.

As Plaintiff describes it, Defendant Sergeant Johnson—who has yet to

be served—primarily was responsible for Mr. Rice’s death. Id. ¶¶22, 27-28.

Sergeant Johnson “felt the need” to spray Mr. Rice with chemical agents and,

after he did so, used his body weight to hold Mr. Rice face-first on the floor with

“his left arm wrapped around [Mr. Rice’s] throat, consistent with . . . a

chokehold.” Id. ¶¶ 27-28. Defendants Miller, Creamer, McCoy, and Hardee

“collectively secured [Mr. Rice’s] extremities to the floor and applied

restraints,” all while Sergeant Johnson maintained his hold around Mr. Rice’s

neck. Id. ¶ 29. Plaintiff alleges Mr. Rice “was continuously held in that position

while [Defendant] Miller applied additional chemical agents.” Id. ¶ 30.

Plaintiff alleges the “remaining Defendant Correctional Officers did

nothing the stop the strangulation and continued to restrain [Mr. Rice] even

as he was choking to death and, in fact, were complicit in and participated in

Sergeant Johnson’s excessive use of force.” Id. ¶ 33. After Mr. Rice was fully

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restrained, Defendants Hancock and Hardee tried lifting him off the floor, but

Mr. Rice had “become physically and verbally unresponsive.” Id. ¶ 34. Despite

his unresponsive demeanor, Mr. Rice was carried to the exit of the dormitory

and placed in a wheelchair. Id. ¶ 35. Mr. Rice was then taken to the infirmary

where CPR efforts were commenced but failed. Id.

The medical examiner concluded Mr. Rice died of mechanical asphyxia

and labeled the manner of death a homicide. Id. ¶ 37. Mr. Rice “did not have

any illicit drugs in his system.” Id. Plaintiff alleges all officers were trained in

the dangers of a chokehold and knew that such a technique could result in

death. Id. ¶ 31. Plaintiff sues all corrections officers for the use of excessive

force or a failure to intervene under 42 U.S.C. § 1983 (count one) and for

wrongful death under Florida law (count three). Count two is against the

FDOC, who has answered the complaint (Doc. 7).

IV. Motions & Analysis

In essentially identical motions, Defendants invoke qualified immunity

as to count one and sovereign immunity as to count three. Defendants

uniformly contend Plaintiff’s allegations “portray a situation where a prison

disturbance involving a potentially intoxicated inmate required force in order

to restore the peace,” and the officers acted “in haste, [and] under pressure” to

respond. See, e.g., Miller Motion at 7-8. Thus, according to Defendants, they

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used force not with malicious intent but rather in a “good-faith effort to

maintain or restore discipline.” Id. at 8 (citing Hudson v. McMillian, 503 U.S.

1, 7 (1992)).

A. Qualified Immunity

An officer sued in his individual capacity “is entitled to qualified

immunity for his discretionary actions unless he violated ‘clearly established

statutory or constitutional rights of which a reasonable person would have

known.’” Black v. Wigington, 811 F.3d 1259, 1266 (11th Cir. 2016) (quoting

Case v. Eslinger, 555 F.3d 1317, 1325 (11th Cir. 2009)). Qualified immunity

allows officers to exercise their official duties without fear of facing personal

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

protects all but the plainly incompetent or those who knowingly violate an

inmate’s constitutional rights. Id.

Upon asserting a qualified immunity defense, a defendant bears the

initial burden to demonstrate he was acting in his discretionary authority at

the relevant times. Dukes v. Deaton, 852 F.3d 1035, 1041-42 (11th Cir. 2017).

Plaintiff concedes Defendants were acting within their discretionary duties at

the relevant times. See Pl. Resp. at 5. Thus, the burden shifts to her to point

to allegations that, accepted as true, show Defendants Miller, Creamer,

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McCoy, Hancock, Hardee, and Yetton violated a clearly established

constitutional right. Alcocer, 906 F.3d at 951.

Prison guards may use force against an inmate when necessary “to

maintain or restore discipline.” Whitley v. Albers, 475 U.S. 312, 320 (1986).

See also Williams v. Burton, 943 F.2d 1572, 1575 (11th Cir. 1991). However,

the Eighth Amendment “prohibits the unnecessary and wanton infliction of

pain, or the infliction of pain totally without penological justification.” Ort v.

White, 813 F.2d 318, 321 (11th Cir. 1987). As such, “force is deemed legitimate

in a custodial setting as long as it is applied ‘in a good faith effort to maintain

or restore discipline [and not] maliciously and sadistically to cause harm.’”

Skrtich v. Thornton, 280 F.3d 1295, 1300 (11th Cir. 2002) (quoting Whitley,

475 U.S. at 320-21).

Courts analyzing whether a plaintiff sufficiently alleges an officer used

force maliciously and sadistically to cause harm consider various factors,

including the need for the use of force, the extent of force used in relation to

the prisoner’s conduct, the threat of harm the prisoner posed to staff and

inmates, whether the officer tried to “temper the severity of a forceful

response,” and the injuries inflicted. Id. (citing Hudson, 503 U.S. at 8). In

considering these factors, courts may draw inferences “as to whether the use

of force could plausibly have been thought necessary, or instead evinced such

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wantonness with respect to the unjustified infliction of harm as is tantamount

to a knowing willingness that it occur.” Id. at 1300-01. When an officer uses

excessive force against a prisoner, officers who are present and in a position to

intervene can be held personally liable if they do not. Id. at 1301 (citing cases).

Plaintiff carries her burden on qualified immunity. Defendants may well

ultimately demonstrate they reacted reasonably to subdue a physically

combative, intoxicated inmate, but the Court is obliged to accept Plaintiff’s

well-pled allegations as true and draw all reasonable inferences in her favor.

In doing so, Plaintiff portrays a much different picture than the one

Defendants ask the Court to accept as true. Plaintiff describes conduct that,

accepted as true, permits the reasonable inference seven officers either directly

used deadly force against an inmate who was not posing a threat or failed to

intervene to prevent harm they knew likely could cause death or serious harm.

Notably, Plaintiff alleges Defendants may not have had a reason to use

force against Mr. Rice at all: she asserts it is unclear why Defendant officers

went to Mr. Rice’s dorm, and some inmates reported Mr. Rice was non-violent

but merely asking for help. See Compl. ¶ 25. Thus, contrary to Defendants’

characterization of events, the complaint does not demonstrate the officers had

a need to use force or were reacting in “haste” to a disturbance caused by a

physically combative inmate. See, e.g., Miller Motion at 3, 8, 14. If the officers

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used force or permitted force to be used against Mr. Rice for no reason, their

conduct could amount to an Eighth Amendment violation.

Even accepting as true, however, that the officers had a reason to use

force—because Mr. Rice was combative and presumed intoxicated—Plaintiff

alleges facts that permit the reasonable inference the measures taken

“inflicted unnecessary and wanton pain and suffering caused by force used

maliciously and sadistically for the very purpose of causing harm.” See

Williams, 943 F.2d at 1575 (quoting in part Whitley, 475 U.S at 320-21). Even

though the officers whose motions are before the Court did not physically place

Mr. Rice in a chokehold after having sprayed him with chemical agents,

Plaintiff alleges they assisted Sergeant Johnson in doing so or watched him do

so and, therefore, reasonably could be found to have participated in or enabled

a use of force that was unreasonable under the circumstances.

“Because § 1983 ‘requires proof of an affirmative causal connection

between the official’s acts or omissions and the alleged constitutional

deprivation,’ each defendant is entitled to an independent qualified-immunity

analysis as it relates to his or her actions and omissions.” Alcocer, 906 F.3d at

951 (quoting Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986) (per

curiam)).

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Plaintiff alleges Defendants Miller, Creamer, McCoy, and Hardee

assisted in physically restraining Mr. Rice. See Compl. ¶¶ 27-29. Plaintiff

explains these four officers “collectively secured [Mr. Rice’s] extremities to the

floor and applied restraints, including leg irons, while Sergeant Johnson’s arm

remained around [Mr. Rice’s] throat in the face down position,” knowing Mr.

Rice had recently been sprayed with chemical agents and, therefore, likely was

in “respiratory distress.” Id. ¶¶ 29, 30. And knowing Mr. Rice was being held

down with pressure on his neck, Defendant Miller administered a second round

of chemical agents. Plaintiff does not allege Mr. Rice was resisting Sergeant

Johnson’s or the other officers’ efforts to restrain him when Defendant Miller

administered what was a second round of chemical agents. Id. ¶¶ 27-30. On

the contrary, Plaintiff’s allegations permit the inference Mr. Rice was unable

to put up much of a fight given he may have been struggling to breathe and

was pinned to the floor by four officers, with other officers present to assist. Id.

Accepting Plaintiff’s allegations as true, a reasonable person could conclude

Defendants Miller, Creamer, McCoy, and Hardee participated in or failed to

intervene during an unconstitutional use of force.

As to Defendants Hancock and Yetton, Plaintiff concedes they did not

directly apply force to Mr. Rice, but were present during and “witnessed the

takedown and strangulation . . . and had a clear and present opportunity to

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intervene.” See Pl. Resp. at 7 n.3. Plaintiff alleges Defendants Hancock and

Yetton, along with the other five officers, “reported to [HCI’s] F Dormitory,

where [Mr. Rice] was located,” and, therefore were present when the use-of-

force incident occurred. See id. ¶¶ 25, 53. Whether Hancock or Yetton had the

ability to intervene during the use of force is unclear, but Plaintiff alleges

enough facts permitting the reasonable inference they watched other officers

use excessive force and failed to take action to prevent harm to Mr. Rice

knowing harm was likely to occur, which could constitute an Eighth

Amendment violation. See, e.g., Velazquez v. City of Hialeah, 484 F.3d 1340,

1342 (11th Cir. 2007) (“[A]n officer who is present [during] a beating and fails

to intervene may be held liable though he administered no blow.”).3

Moreover, a reasonable inference to be drawn from Plaintiff’s allegations

is that all seven officers intended to harm Mr. Rice and later constructed a

story to justify their actions, including that Mr. Rice was intoxicated and being

combative. See Compl. ¶¶ 20, 23, 24, 33, 34-37. For instance, Plaintiff alleges

the FDOC has refused to release a copy of the video footage and the IG’s

investigative report is “heavily redacted at key points.” Id. ¶¶ 20, 25.

3 Additionally, Plaintiff alleges Defendants Hancock and Hardee improperly

moved a physically unresponsive Mr. Rice after he had been sprayed twice and nearly

choked. See Compl. ¶¶ 34-35, 36. Such conduct could be found cruel and unusual.

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Whether the officers had a reason to use force to subdue Mr. Rice and

whether the extent of force they used or observed was reasonable under the

circumstances is best addressed on a fully developed record at summary

judgment. At this juncture, Plaintiff alleges enough facts against each officer

suggesting he participated in a use of force that was imposed maliciously and

sadistically to cause harm or failed to intervene when he observed the other

officers’ allegedly unconstitutional use of force. See Skrtich, 280 F.3d at 1300.

For these reasons, Plaintiff marshals enough facts to overcome a defense

of qualified immunity. Id. at 1301 (“In this Circuit, a defense of qualified

immunity is not available in cases alleging excessive force in violation of the

Eighth Amendment, because the use of force maliciously and sadistically to

cause harm is clearly established to be a violation of the Constitution.”

(internal quotation marks omitted)).

B. Sovereign Immunity under Florida State Law

As to the wrongful death claim (count three), Defendants assert they are

immune from suit and liability under Florida Statutes section 768.28(9)(a).

See, e.g., Miller Motion at 12-14. Florida’s sovereign immunity statute grants

immunity to state employees for tort actions unless they “acted in bad faith or

with malicious purpose or in a manner exhibiting wanton and willful disregard

of human rights, safety, or property.” See Fla. Stat. § 768.28(9)(a).

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Florida courts have equated the phrase “bad faith” as used in section

768.28(9)(a) with the actual malice standard and interpreted “malicious

purpose” as conduct committed with “the subjective intent to do

wrong.” Peterson v. Pollack, 290 So. 3d 102, 109 (Fla. 4th DCA 2020) (citing

cases). Conduct is considered “wanton” if performed “with a conscious and

intentional indifference to consequences and with the knowledge that damage

is likely to be done to persons,” while “willful” conduct is conduct performed

“intentionally, knowingly and purposely.” Id. at 110; Williams v. City of

Minneola, 619 So. 2d 983, 987 (Fla. 5th DCA 1993) (holding a finding of

recklessness also could support a finding of “willful and wanton conduct under

section 768.28(9)”). See also Valdes v. Crosby, 390 F. Supp. 2d 1084, 1108 (M.D.

Fla. 2005), aff’d, 450 F.3d 1231 (11th Cir. 2006) (noting the standard to

overcome Florida’s sovereign immunity “is at least as high as the standard

needed to prove” an officer or agent of the state was deliberately indifferent to

an inmate’s health or safety under § 1983).

Plaintiff alleges facts that, accepted as true, permit the reasonable

inference Defendants Miller, Creamer, McCoy, Hancock, Hardee, and Yetton

“acted in bad faith or with malicious purpose or in a manner exhibiting wanton

and willful disregard of human rights, safety, or property.” See Fla. Stat. §

768.28(9)(a). If true that these Defendants intentionally participated in or idly

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observed a use of force knowing their actions or inactions could cause “a

substantial likelihood of severe and irreparable bodily harm and/or death,” see

Compl. ¶ 30, a reasonable person could construe their conduct as malicious,

reckless, or done with a willful and wanton disregard of human rights or safety.

See, e.g., Medina v. Pollack, 300 So. 3d 173, 174, 176 (Fla. 4th DCA 2020)

(holding the plaintiff avoided the sovereign immunity bar where the complaint

alleged a school security officer saw a “kid” who was thought to be capable of

“shoot[ing] up the school at some point” walking toward the school entrance

with a gun bag but decided against immediately calling a Code Red).

For the reasons stated, Defendants are not shielded by Florida’s

sovereign immunity statute at this juncture.

Accordingly, it is now

ORDERED:

1. Defendants Miller’s, Creamer’s, McCoy’s, Hancock’s, Hardee’s, and

Yetton’s motions to dismiss (Docs. 12-17) are denied.

2. Defendants Miller, Creamer, McCoy, Hancock, Hardee, and Yetton

shall answer the complaint (Doc. 6) within twenty days of the date of this

Order.

3. By July 15, 2021, Plaintiff shall show cause why the claims

against Defendant Johnson should not be dismissed without prejudice for her

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failure to timely serve him. See Fed. R. Civ. P. 4(m). Plaintiffs failure to show

satisfactory cause by the designated deadline will result in the dismissal of the

claims against Defendant Johnson without further notice.

DONE AND ORDERED at Jacksonville, Florida, this 15th day of June

2021.

J) é / =

fo Axons a OA

BRIAN. DAVIS

United States District Judge

Jax-6

C:

Counsel of Record

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