Moreno v. Moore

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

BRIAN PAUL MORENO,

Plaintiff,

vs. Case No.: 3:18-cv-1472-BJD-JBT

SERGEANT LANCE MOORE, et al.,

Defendants.

/

ORDER ON MOTION FOR SUMMARY JUDGMENT

I. Status

Plaintiff Brian Paul Moreno, an inmate of the Florida Department of

Corrections (FDOC), is proceeding in this civil rights action on his verified

Second Amended Complaint, which he filed pro se under 42 U.S.C. § 1983. (Doc.

52, “Sec. Am. Compl.”). Plaintiff names as defendants Sergeant Lance Moore,

Sergeant Trevor Sistrunk, Sergeant Clinton Jackson, Officer Joshua Pharm1,

and Sergeant Steven Rogers, each of whom is a corrections officer with the

FDOC (collectively, “Defendants”). Plaintiff sues Moore, Sistrunk, and Pharm

for using excessive force and common law battery. He sues Jackson and Rogers

for failure to intervene under the Eighth Amendment and the common law.

1 Officer Pharm’s name is alternately spelled “Parm” or “Pharm” throughout the case

documents. Because the Court does not know the true spelling, the Court will use “Pharm”

because that is the name that appears on the docket and in the operative complaint.

Plaintiff seeks nominal, compensatory, and punitive damages against each

Defendant in their official and individual capacities.

Before the Court is the Defendants’ Motion for “Partial”2 Summary

Judgment. (Doc. 87, Motion). Defendants argue that Plaintiff’s suit is partially

barred by Heck v. Humphrey,3 that they are immune from suit to the extent

Plaintiff sues them for monetary damages in their official capacity, and that

they are entitled to qualified immunity. In support, Defendants submit a copy

of a use-of-force report related to the incident in question, a copy of a

disciplinary report, and Sergeant Moore’s declaration. (Docs. 87-1 through 87-

3, “Def. Ex.”).

Plaintiff responded with a Declaration in Opposition (Doc. 89 at 1–4), a

Statement of Disputed Facts (id. at 5–6), and a Brief in Opposition (id. at 7–14)

(collectively, the “Response”). Attached to the Response are Plaintiff’s exhibits,

which include medical records and a supplemental declaration (Docs. 89-1

through 89-9, “Pl. Ex.”). Defendants did not file a reply brief. Thus, the

Defendants’ Motion is ripe for consideration. The Motion is due to be granted in

part and denied in part.

2 “Partial Summary Judgment” is a misnomer because Defendants argue they are

entitled to qualified immunity, and qualified immunity is a complete defense both from

liability and from suit. Gilmore v. Hodges, 738 F.3d 266, 272 (11th Cir. 2013). Therefore, the

Motion is really a motion for summary judgment.

3 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994).

II. Summary Judgment Standard

Under the Federal Rules of Civil Procedure, “[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, interrogatory answers, or other

materials.” Fed. R. Civ. P. 56(c)(1)(A). An issue is genuine when the evidence is

such that a reasonable jury could return a verdict for the non-movant. See 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, 106 S. Ct. 2505, 91 L. Ed. 2d 202

(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 genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d

590, 593–94 (11th Cir. 1995) (internal citations and quotations 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,

106 S. Ct. 2505. 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)).

III. Facts4

Each of the named Defendants was employed as a correctional officer at

Suwannee Correctional Institution (“SCI”) on January 3, 2018, the date of the

events in question. On January 3, 2018, Plaintiff was using the restroom in the

N-Dormitory Housing Unit when Rogers radioed for assistance because another

inmate, Todd Asher, appeared to be under the influence. Sec. Am. Compl., § III,

4 Because the matter is before the Court on the Defendants’ motion for summary

judgment, the Court views the facts in the light most favorable to Plaintiff. Jenkins by Hall v.

Talladega City Bd. of Educ., 115 F.3d 821, 822 (11th Cir. 1997).

¶¶ 1–2. Moore, Jackson, Sistrunk, and Pharm responded to the call, with Moore

and Sistrunk proceeding to the restroom area. Moore ordered Plaintiff to get up

and leave the restroom area, to which Plaintiff responded that he needed to

finish and then he would leave. Id. ¶ 4. Sistrunk proceeded to Plaintiff’s left side

and Moore proceeded to Plaintiff’s right side. Id. ¶ 5. Moore grabbed Plaintiff’s

right arm and attempted to pull him sideways off the toilet while Plaintiff was

sitting and trying to clean himself. Id. ¶ 6. Plaintiff acknowledges that he

“pulled back reflexively” to prevent himself from falling off the toilet, at which

point Sistrunk began striking him with a clenched fist in the nose and the left

side of his face. Id. ¶¶ 7–8; (Doc. 89-6, Pl. Supp. Decl. at 2). Moore tried again

to grab Plaintiff’s right arm and pulled Plaintiff to the floor, after which

Sistrunk and Moore continued to strike Plaintiff. Sec. Am. Compl., § III, ¶ 9;

Plaintiff’s Decl. (Doc. 89) at 2, ¶ 14. Plaintiff denies that he resisted the officers.

Plaintiff’s Decl. at 3, ¶ 25. He asserts that he laid on the floor and tried to protect

his face from the officers’ punches and kicks. Id. Plaintiff alleges that while on

the floor, Sistrunk twisted his arm “excessively and repeatedly” and Moore kept

striking him, with Plaintiff “crying out in pain” and begging them to stop. Sec.

Am. Compl., § III, ¶ 10; Pl. Supp. Decl. (Doc. 89-6) at 2.

Next, Plaintiff asserts that Pharm entered the restroom area and jumped

on Plaintiff’s back to place him in hand restraints. Sec. Am. Compl, § III, ¶ 11.

After Plaintiff was in hand restraints, Pharm struck Plaintiff in the back with

hammer punches and Moore kicked Plaintiff twice in the right eye. Id., ¶¶ 11–

12. Then, allegedly without provocation, one officer pepper-sprayed Plaintiff’s

face and buttocks, after which Sistrunk pulled up Plaintiff’s pants. Id., ¶ 13.

Meanwhile, Plaintiff asserts, Rogers and Jackson watched the entire incident

from the restroom entrance area but did not intervene. Id., ¶ 14.

After the incident, Plaintiff was escorted to confinement for a

decontamination shower and was examined by medical staff. Plaintiff says he

was referred to one Dr. Figueroa, who referred Plaintiff to an outside hospital

“because of significant eye and facial trauma.” Id., ¶ 15. Plaintiff states that he

suffered numerous injuries from the incident, including multiple fractures to

his right orbital eye socket, hematoma and opacification of the right nasal

vestibule and right maxillary sinus, and extensive bruising. Id., ¶ 16. According

to Plaintiff, he suffers from lingering vision impairment as well as emotional

and physical trauma. Id., ¶¶ 17–18. Plaintiff further asserts that the

Defendants falsified incident and use-of-force reports to conceal their alleged

misconduct. Id., ¶ 19.

Based on these facts, Plaintiff sues Moore, Sistrunk, and Pharm for using

excessive force in violation of the Eighth Amendment and for common law

battery. Plaintiff sues Rogers and Jackson for failure to intervene, in violation

of the Eighth Amendment, and negligent failure to intervene under the common

law. He sues the Defendants in both their individual and official capacities.

Plaintiff seeks “nominal damages” of $200,000 per defendant per count,

compensatory damages of $200,000 per defendant per count, and punitive

damages of $200,000 per defendant per count.5 Plaintiff requests a jury trial,

recovery of costs, and any other relief the Court deems appropriate.

The Defendants dispute Plaintiff’s version of events. According to

Sergeant Moore’s declaration, the events occurred as follows:

3. …. On January 3, 2018, [at] approximately 10:34AM, while assigned

as the M-Dormitory Housing Supervisor, I responded to N Dormitory due

to Inmate Moreno, Brian DC# A50943 being high on an unknown

substance.[6] I attempted to place Inmate Moreno in hand restraints.

Inmate Moreno then took an aggressive stance and lunged in my

direction. I utilized my assigned MK.4 canister # 164 and administered

one continuous burst to Inmate Moreno’s upper torso area. Inmate

Moreno continued his assaultive behavior striking me in the chest with

a clenched fist. I used both my hands to block Inmate Moreno’s attempt

to wrap both his arms around my torso and take me to the ground. At

this time Officer Sistrunk utilized his assigned MK4 canister #191 and

administered one continuous burst to Inmate Moreno’s head and upper

torso area. I then redirected Inmate Moreno to the wall chest first,

causing him to inadvertently hit his facial area on the wall. Inmate

Moreno continued his assaultive behavior and it became necessary for

me to force Inmate Moreno chest first to the floor. Due to Inmate

Moreno[’s] continued assaultive behavior he inadvertently struck his

head on the toilet. Inmate Moreno would not submit to hand restraints

and began thrashing his body attempting to bite Officer Sistrunk. I began

to utilize distractionary hammer fist strikes to Inmate Moreno’s upper

torso area in an attempt [to] gain control of Inmate Moreno’s upper torso

and place him in restraints. Sergeant Jackson used his knee and body

weight to pin inmate Moreno’s left leg to the floor, and both his hands to

force [Moreno’s] right leg to the floor so leg restraints could be applied.

5 Stated differently, Defendant seeks $1.2 million in damages from each Defendant,

consisting of $400,000 in “nominal damages,” $400,000 in compensatory damages, and

$400,000 in punitive damages, because each Defendant is named in two counts.

6 There is a factual dispute about whether it was Plaintiff who was under the influence

or another inmate, Todd Asher. Because this matter is before the Court on Defendants’ motion

for summary judgment, the Court assumes it was Asher who was under the influence.

Officer Parm assisted Sergeant Jackson in placing leg restraints on

Inmate Moreno. Inmate Moreno then became compliant with all verbal

orders and all force ceased. I utilized and witnessed only the use of the

minimal amount of force necessary to bring Inmate Moreno into

compliance with all verbal orders.

4. Officer Trevor Sistrunk and I received a post use of force physical with

no injuries noted. Inmate Moreno received a disciplinary report for a

violation of Fla. Admin. Code 33-601.301-(1-15) battery or attempted

battery on a correctional officer.

(Doc. 87-3, Def. Ex. C., Moore Decl. at ¶¶ 3–4).

Defendants also submitted a copy of a use-of-force report, which Sergeant

Moore authored (Doc. 87-1, Def. Ex. A, Use-of-Force Report), and a copy of a

disciplinary report against Plaintiff (Doc. 87-2, Def. Ex. B, Disciplinary Report).

The use-of-force report contains a narrative account of events that is generally

consistent with the one that Moore provided in his declaration. The disciplinary

report reflects that Plaintiff was found guilty of battery or attempted battery on

a correctional officer based on Moore’s account of the events. Plaintiff was

sanctioned with 36 days of disciplinary confinement and the loss of 60 days’ gain

time. The use-of-force report indicates there is fixed-wing and handheld video

footage of the incident (Def. Ex. A at 1), but Defendants did not submit the video

to this Court or cite it in their Motion.

IV. Defendants’ Motion and Plaintiff’s Response

First, Defendants argue that Plaintiff is “Heck barred” from disputing the

disciplinary report and the need for force. Motion at 8–9. Defendants contend

that “Plaintiff cannot relitigate the correctness of the disciplinary report or that

force was used in response to his actions.” Id. at 8. According to Defendants,

“[t]he question for the jury in this case is whether force was then used

maliciously and sadistically for the very purpose of causing harm.” Id. at 8–9

(citing Whitley v. Albers, 475 U.S. 312, 320–21 (1986)). Second, Defendants

contend they are immune from suit to the extent Plaintiff sues them in their

official capacity for monetary damages. Id. at 9. Finally, Defendants argue that

they are entitled to qualified immunity. Id. at 9–11.

In response, Plaintiff filed a “Declaration in Opposition to Defendants’

Motion for Summary Judgment,” a Statement of Disputed Facts, and a Brief in

Opposition (Doc. 89, collectively, “Response”), accompanied by exhibits and a

supplemental declaration (Doc. 89-1 through 89-8, Pl. Exs. A–H). Plaintiff

mostly reiterates the account he set forth in the Second Amended Complaint.

He denies resisting or threatening the officers and he denies violating prison

rules. Plaintiff’s Decl. at 3, ¶ 25. Plaintiff disputes the Defendants’

representation that he resisted the officers or disobeyed their commands

“befor[e] defendants Moore and Sistrunk used unnecessary force.” Statement of

Disputed Facts (Doc. 89 at 5), ¶ 3. Plaintiff attached medical records reflecting

that he was evaluated by Dr. Alexis Figueroa, a staff physician at SCI, and by

a physician at Memorial Hospital in Jacksonville, Florida. (Pl. Ex. B, Memorial

Hospital Record; Pl. Ex. C, SCI Medical Record; Pl. Ex. D, Injury Diagram).

According to these records, Plaintiff sustained several injuries to his head and

face, including a closed orbital floor (blow-out) fracture, traumatic hematoma of

the right eye, and traumatic vision loss in the right eye. Based on his sworn

statements and the records, Plaintiff argues there are genuine disputes of

material facts that preclude summary judgment for Defendants.

V. Discussion

A. Heck Bar

First, Defendants argue that Heck v. Humphrey partially bars Plaintiff’s

excessive force claim. Motion at 8–9. Defendants argue that because Plaintiff

received a disciplinary report for battery or attempted battery on a correctional

officer, and because Plaintiff was found guilty of the charge, Heck bars Plaintiff

from “relitigat[ing] the correctness of the disciplinary report or that force was

used in response to his actions.” Id. at 8. According to Defendants, the only

question for the jury in this case “is whether force was then used maliciously or

sadistically for the very purpose of causing harm.” Id. at 8–9.

In Heck v. Humphrey, the Supreme Court held that a state prisoner’s

claim for damages “is not cognizable under § 1983 … [if] a judgment in favor of

the plaintiff would necessarily imply the invalidity of his conviction or

sentence.” 512 U.S. at 487. Challenges to the validity of a conviction or sentence

are the province of habeas corpus, not § 1983 lawsuits. Id. at 481 (citing Preiser

v. Rodriguez, 411 U.S. 475, 488–90 (1973)). The Supreme Court extended Heck’s

holding to a prisoner’s challenge to disciplinary proceedings in Edwards v.

Balisok, 520 U.S. 641, 643 (1997). There, the Supreme Court held that a

prisoner’s claim “for declaratory relief and money damages, based on

allegations of deceit and bias on the part of the decisionmaker that necessarily

imply the invalidity of the punishment imposed, is not cognizable under § 1983.”

Id. at 648.

A prisoner need not seek the expungement of a disciplinary report or the

restoration of good time credits for the Heck bar to apply. The test is whether a

civil judgment in the prisoner’s favor would necessarily negate the underlying

punishment. See Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003). “It is

irrelevant that [the prisoner] disclaims any intention of challenging his

conviction; if he makes allegations that are inconsistent with the conviction’s

having been valid, Heck kicks in and bars his civil suit.” Okoro v. Callaghan,

324 F.3d 488, 490 (7th Cir. 2003).

That said, Heck does not bar every civil lawsuit that arises from an

incident for which the plaintiff was convicted of an offense or received a

disciplinary infraction. “[F]or Heck to apply, it must be the case that a

successful § 1983 suit and the underlying conviction be logically contradictory.”

Dyer v. Lee, 488 F.3d 876, 884 (11th Cir. 2007). “In other words, as long as it is

possible that a § 1983 suit would not negate the underlying conviction, then the

suit is not Heck-barred.” Id. at 879–80 (emphasis added). Thus, the “Heck

inquiry sounds in theoretical possibility,” asking “whether it is possible that the

facts could allow a successful § 1983 suit and the underlying conviction both to

stand without contradicting each other.” Harrigan v. Metro Dade Police Dep’t

Station #4, 977 F.3d 1185, 1193 (11th Cir. 2020) (emphasis in original) (citations

and internal quotation marks omitted).

The Eleventh Circuit’s decision in Dixon v. Hodges, 887 F.3d 1235 (11th

Cir. 2018), illustrates the point. There, the prisoner brought an excessive force

claim against correctional officers for a use-of-force incident that also resulted

in the prisoner receiving a disciplinary infraction for battery or attempted

battery on a correctional officer. Id. at 1238. The defendants moved for

summary judgment on the excessive force claim based on the Heck doctrine,

arguing that Dixon’s success on the § 1983 suit would necessarily imply the

invalidity of his disciplinary infraction. Id. The district court granted the

defendants’ motion but the Eleventh Circuit reversed. The court observed that

as long as it is possible a § 1983 suit would not negate the underlying

punishment, then the suit is not Heck-barred. Id. (citing Dyer, 488 F.3d at 879–

80). “A prisoner may be punished for battery on a prison guard, and that prison

guard may be held liable for using excessive force on the prisoner in subduing

him; both may be true.” Id.

One of the defendants in Dixon contended that “Heck nonetheless

applie[d] … because Dixon allege[d] that he did not lunge at [the officer] before

[the officer] used force against him. Because Dixon’s disciplinary punishment is

grounded in those facts, and Dixon is alleging contrary facts in his § 1983

complaint, [the officer] claim[ed] that Heck should bar the suit.” Id. The court

rejected this argument, which was based on the so-called “inconsistent-factual-

allegations rule.” The Eleventh Circuit recognized that it had previously said

Heck “may bar a prisoner’s suit ‘if his § 1983 complaint makes specific factual

allegations that are inconsistent with the facts upon which his [punishment

was] based.’” Id. (quoting Dyer, 488 F.3d at 883 n.9). But, the court explained,

the inconsistent-factual-allegations rule applies only in a “narrow category of

cases”: “where the allegation in the § 1983 complaint is a specific one that both

[1] necessarily implies the earlier decision is invalid and [2] is necessary to the

success of the § 1983 suit itself.” Id. at 1239 (emphasis in original; bracketed

numerals added) (citing Okoro, 324 F.3d 488). Notably, “[w]hen a plaintiff

alleges a fact that, if true, would conflict with the earlier punishment, but that

fact is not necessary to the success of his § 1983 suit, the Heck bar does not

apply.” Id. The court concluded that such was the case in Dixon.

The gravamen of Dixon’s § 1983 complaint is that Pollock used excessive

force against him. The success of this claim is not necessarily dependent

on whether Dixon lunged at Pollock or not. His disciplinary punishment,

of course, establishes that he did. But that factual finding is not

determinative of whether Pollock used excessive force against Dixon. It

is logically possible both that Dixon lunged at Pollock and that Pollock

used excessive force against him. Because “there is a version of the facts

which would allow the [punishment] to stand” alongside a successful §

1983 suit, Heck does not control.

Id. at 1239–40 (footnote omitted) (quoting Dyer, 488 F.3d at 883).

The same is true here. Defendants concede that a jury question exists as

to whether the force used against Plaintiff was excessive. Motion at 8–9. They

nevertheless argue that Heck bars Plaintiff from litigating whether it was

necessary for the officers to use some degree of force in the first place. But even

this limited application of Heck fails under the reasoning of Dixon. Defendants’

own argument recognizes that it is not “necessary to the success of the § 1983

suit” for Plaintiff to challenge whether the officers needed to use force, Dixon,

887 F.3d at 1239, for even if Plaintiff cannot challenge the use of force in

general, there is still a jury question about “whether force was then used

maliciously or sadistically for the very purpose of causing harm,” Motion at 9.

Therefore, to the extent Plaintiff challenges the disciplinary report, denies

resisting the officers, or challenges the general use of force, those allegations

are not “necessary to the success of the § 1983 suit itself.” Dixon, 887 F.3d at

1239. The gravamen of Plaintiff’s complaint is not that Moore, Sistrunk, and

Pharm used force, but that they used excessive force.

The success of this claim is not necessarily dependent on whether

[Plaintiff resisted the officers] or not. His disciplinary punishment,

of course, establishes that he did. But that factual finding is not

determinative of whether [Moore, Sistrunk, and Pharm] used excessive

force against [Plaintiff]. It is logically possible both that [Plaintiff] lunged

at [or resisted] [the officers] and that [the officers] used excessive force

against him. Because “there is a version of the facts which would allow

the [punishment] to stand” alongside a successful § 1983 suit, Heck does

not control.

Id. at 1239–40.

Moreover, success on Plaintiff’s excessive force claim would not

“necessarily impl[y] [that] the earlier [disciplinary] decision is invalid.” Id. at

1239. The disciplinary report contains a “basis for decision” that states “Subject

was found guilty based on the facts in Section I and evidence presented at the

hearing on the charge of (1-15) battery or attempted battery on a correctional

officer as written by Sgt. L. Moore.” (Def. Ex. B at 2). It goes on to say:

Sgt. Moore responded to N-Dormitory due to Inmate Moreno, Brian DC#

A50943 being high on an unknown substance. Sgt. Moore attempted to

place Inmate Moreno in hand restraints, Inmate Moreno then took an

aggressive stance and lunged in Sgt. Moore’s direction. It became

necessary to utilize chemical agents in an attempt to prevent battery on

staff to no avail. Inmate Moreno continued his assaultive behavior

striking Sgt. Moore in the chest with a clenched fist. Sgt. Moore then

utilized both of his hands to block Inmate Moreno’s attempt to wrap both

his arms around his torso to take Sgt. Moore to the ground. It then

became necessary to utilize physical force to overcome Inmate Moreno’s

physical resistance to a lawful command and to prevent further battery

on staff.

Id.; see also id. at 1. Notably, the disciplinary report is silent or vague about

what happened after Plaintiff was brought to the ground and/or placed in hand

restraints. Plaintiff alleges that Moore and Sistrunk continued to beat him after

he was brought to the floor. Sec. Am. Compl., § III, ¶¶ 9–10; Plaintiff’s Decl. at

2–3, ¶¶ 14–15. He further alleges that after he was put in hand restraints,

Moore and Pharm continued to punch and kick him in the head and back, and

that one officer pepper-sprayed his face and buttocks. Sec. Am. Compl., § III, ¶¶

11–13; Plaintiff’s Decl. at 3, ¶¶ 16–18. It is entirely possible that Plaintiff

committed each act described in the disciplinary report and that Moore,

Sistrunk, and Pharm used excessive force after Plaintiff was subdued. Because

there is a potential sequence of events in which Plaintiff is both guilty of battery

or attempted battery and a victim of excessive force, Heck does not bar his

excessive force claim. See Harrigan, 977 F.3d at 1193 (“Our Court’s Heck

inquiry sounds in theoretical possibility.” (citing Hadley v. Gutierrez, 526 F.3d

1324, 1333 (11th Cir. 2008))); Sconiers v. Lockhart, 946 F.3d 1256, 1268–70

(11th Cir. 2020) (Heck did not bar inmate’s excessive force claims, where inmate

pleaded guilty to resisting an officer, because it was possible the inmate resisted

the officer and the officer used excessive force after inmate became compliant).

In short, success on Plaintiff’s excessive force claim does not depend on

him challenging the correctness of the disciplinary report. Nor would success

on the excessive force claim necessarily imply the invalidity of his disciplinary

infraction or the facts on which it is based. Therefore, the Heck doctrine does

not apply.

B. Sovereign Immunity

Next, Defendants argue that they are immune from suit under the

Eleventh Amendment to the extent Plaintiff sues them in their official capacity

for monetary damages. Motion at 9. The Court agrees.

A lawsuit against a state officer in his official capacity is the same as a

lawsuit against the entity that employs the officer. See McMillian v. Monroe

Cnty., 520 U.S. 781, 785 n.2 (1997); Kentucky v. Graham, 473 U.S. 159, 165

(1985). “It is well established that the eleventh amendment immunizes an

unconsenting state from suits brought in federal court by its citizens and

citizens of other states.” Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir.

1986) (citing Edelman v. Jordan, 415 U.S. 651, 662–63 (1974)). A state may

waive its sovereign immunity or consent to be sued, or Congress can override

the state’s immunity. Cross v. State of Ala., State Dep’t of Mental Health &

Mental Retardation, 49 F.3d 1490, 1502 (11th Cir. 1995) (internal quotation

marks and citation omitted). However, “Congress has not abrogated Eleventh

Amendment immunity in section 1983 cases.” Carr v. City of Florence, Ala., 916

F.2d 1521, 1525 (11th Cir. 1990). And the Eleventh Circuit has further

determined that “Florida’s limited waiver of sovereign immunity was not

intended to encompass section 1983 suits for damages.” Zatler, 802 F.2d at 400;

Gross v. White, 340 F. App’x 527, 530 (11th Cir. 2009) (“Because Florida has

not waived its sovereign immunity, Gross’ claims are barred.”).

Accordingly, to the extent Plaintiff sues Defendants in their official

capacity for monetary damages, Defendants are entitled to Eleventh

Amendment immunity. However, Plaintiff’s suit for monetary damages against

Defendants in their individual capacity remains.

C. Qualified Immunity

Finally, Defendants argue they are entitled to qualified immunity

because they were authorized to use force in response to Plaintiff’s physical

resistance to a lawful command. Motion at 9–11. Because there is a genuine

dispute of material fact about whether the use of force was excessive, and

because the law is clearly established in this context, the Court disagrees.

Prison officials sued in their individual capacity are “entitled

to qualified immunity for [their] discretionary actions unless [they] 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 government employees 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 the law.’” Dist. of Columbia v. Wesby, 138 S. Ct. 577, 589

(2018) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

To be entitled to qualified immunity, an official “must first establish that

she or he was acting within the scope of his discretionary authority.” Alcocer,

906 F.3d at 951. Here, Defendants were plainly acting within the scope of their

discretionary authority during the incident in question. Accordingly, “the

burden shifts to the plaintiff to demonstrate that qualified immunity is

inappropriate.” Id. (citing Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)).

“Overcoming the official’s qualified-immunity defense requires a plaintiff to

establish both [1] that the officer’s conduct violated a constitutionally protected

right and [2] that the right was clearly established at the time of the

misconduct.” Id. (bracketed numerals added) (citing Pearson v. Callahan, 555

U.S. 223, 232 (2009), and Grider v. City of Auburn, 618 F.3d 1240, 1254 (11th

Cir. 2010)). The first inquiry is, “[t]aken in the light most favorable to the party

asserting the injury, do the facts alleged show the officer’s conduct violated a

constitutional right?” Saucier v. Katz, 533 U.S. 194, 201 (2001). The second

inquiry asks whether “the law was sufficiently clear that every reasonable

official would understand that what he is doing is unlawful.” Wesby, 138 S. Ct.

at 589 (quotation marks and citation omitted). Trial judges have the discretion

to determine which prong of the qualified immunity analysis to resolve first.

Pearson, 555 U.S. at 236. “[E]ach 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.

1. Excessive Force Allegations Against Moore, Sistrunk, and

Pharm

The Court first considers qualified immunity as it concerns Plaintiff’s

excessive force claim against Moore, Sistrunk, and Pharm. “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 by the Supreme Court decisions in Hudson and Whitley.” Skrtich

v. Thornton, 280 F.3d 1295, 1301 (11th Cir. 2002) (citing Johnson v. Breeden,

280 F.3d 1308 (11th Cir. 2002)).7

There is simply no room for a qualified immunity defense when the

plaintiff alleges such a violation. The only question, then, is whether the

plaintiff has alleged facts sufficient to survive a motion to dismiss or a

motion for summary judgment. If he has done so, that is the end of the

inquiry.

7 In Johnson v. Breeden and Fennell v. Gilstrap, 559 F.3d 1212 (11th Cir. 2009), the

Eleventh Circuit determined that qualified immunity is never available for excessive force

claims arising under the Eighth and Fourteenth Amendments, reasoning that “‘the subjective

element required to establish it is so extreme that every conceivable set of circumstances in

which this constitutional violation occurs is clearly established to be a violation of the

Constitution….’” Fennell, 559 F.3d at 1217 (quoting Breeden, 280 F.3d at 1321–22). Recently,

in light of Kingsley v. Hendrickson, 576 U.S. 389 (2015), the Eleventh Circuit abrogated this

exception for excessive force claims under the Fourteenth Amendment, but it still applies to

claims arising under the Eighth Amendment, which is the case here. Patel v. Lanier Cnty.,

Ga., 969 F.3d 1173, 1185–86 (11th Cir. 2020). That said, even if the Court were to separately

address whether the law was clearly established as it relates to Defendants’ conduct, it would

find that it was.

Skrtich, 280 F.3d at 1301 (internal citation omitted). Therefore, as for the

Eighth Amendment excessive force claim against Moore, Sistrunk, and Pharm,

the Court’s qualified immunity analysis begins and ends with determining

whether Plaintiff has alleged facts sufficient to survive summary judgment.

The Eighth Amendment prohibits the infliction of cruel and unusual

punishment. U.S. Const. amend. VIII. In an excessive force case, the core

inquiry is “‘whether force was applied in a good-faith effort to maintain or

restore discipline, or maliciously and sadistically to cause harm.’” Wilkins v.

Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (quoting Hudson v. McMillian, 503

U.S. 1, 7 (1992)). “If force is used maliciously and sadistically for the very

purpose of causing harm, then it necessarily shocks the conscience. If not, then

it does not.” Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007) (internal

quotation marks and citations omitted).

As with other Eighth Amendment claims, the Court must consider both a

subjective and an objective component: (1) whether the “officials act[ed] with a

sufficiently culpable state of mind,” and (2) “if the alleged wrongdoing was

objectively harmful enough to establish a constitutional violation.” Hudson, 503

U.S. at 8. Under the subjective prong, the Court considers whether officers used

force in a good faith effort to maintain or restore order, or instead in a malicious

and sadistic effort to cause harm. Skrtich, 280 F.3d at 1300 (citation omitted).

In determining whether force was used “maliciously and sadistically,” we

consider: (1) “the need for the application of force”; (2) “the relationship

between the need and the amount of force that was used”; (3) “the extent

of the injury inflicted upon the prisoner”; (4) “the extent of the threat to

the safety of staff and inmates”; and (5) “any efforts made to temper the

severity of a forceful response.”

Sears v. Roberts, 922 F.3d 1199, 1205 (11th Cir. 2019) (quoting Cockrell, 510

F.3d at 1311). The Court “must also give a ‘wide range of deference to prison

officials acting to preserve discipline and security,’ including when considering

‘[d]ecisions made at the scene of a disturbance.’” Cockrell, 510 F.3d at 1311

(quoting Bennett v. Parker, 898 F.2d 1530, 1533 (11th Cir. 1990)). But when

jailers continue to use substantial force against a prisoner who has clearly

stopped resisting – whether because he has become compliant, been subdued,

or otherwise incapacitated – that use of force is excessive. Piazza v. Jefferson

Cnty., Ala., 923 F.3d 947, 955–56 (11th Cir. 2019) (collecting cases).

Under the objective prong, the Court considers whether the alleged

wrongdoing was “objectively harmful enough to establish a constitutional

violation.” Hudson, 503 U.S. at 8. “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.” Id. at 9–10 (quotation

marks omitted). Therefore, not “every malevolent touch by a prison guard gives

rise to a federal cause of action.” Id. at 9. A lack of serious injury does not

preclude recovery on an excessive force claim because “[i]njury and force ... are

only imperfectly correlated and it is the latter that ultimately counts.” Wilkins,

559 U.S. at 38. Nevertheless, the severity of the injury is relevant because (1)

the extent of the injury is a factor that may suggest whether using force could

have been thought necessary in a particular situation, and (2) “[t]he extent of

injury may also provide some indication of the amount of force applied.” Id. at

37 (citations omitted).

Defendants concede – and the Court agrees – that a jury question exists

as to “whether force was … used maliciously or sadistically for the very purpose

of causing harm.” Motion at 8–9. Taking the facts in the light most favorable to

Plaintiff, as the Court must at this stage, there is a genuine dispute of material

fact about whether Moore, Sistrunk, and Pharm used excessive force against

Plaintiff. Plaintiff alleges that Sistrunk repeatedly struck him with a clenched

fist in the nose and face after Moore first tried to pull Plaintiff off the toilet. Sec.

Am. Compl., § III, ¶¶ 6–8. Plaintiff states that Moore pulled him to the floor,

yet Moore and Sistrunk continued to strike him. Id., ¶¶ 9–10. Taking the facts

in the light most favorable to Plaintiff, he did not resist the officers once he was

on the floor, but laid there trying to shield his face from being hit. See Plaintiff’s

Decl. at 3, ¶ 25.8 Nevertheless, Sistrunk twisted Plaintiff’s arm “excessively”

8 Of course, the disciplinary report establishes that Plaintiff committed battery or

attempted battery on a correctional officer, and therefore refutes Plaintiff’s assertion that he

never resisted the officers. But because the disciplinary report is silent or vague about what

and Moore continuously struck Plaintiff, with Plaintiff “crying out in pain” and

begging the officers to stop. Sec. Am. Compl, § III, ¶ 10; Pl. Supp. Decl. at 2.

Plaintiff asserts that Pharm then entered the restroom area and jumped on

Plaintiff’s back to place him in hand restraints. Sec. Am. Compl, § III, ¶ 11.

Despite being held down and in restraints, Pharm allegedly struck Plaintiff in

the back with hammer punches while Moore kicked Plaintiff twice in the right

eye. Id.; Pl. Supp. Decl. at 2. Finally, allegedly without provocation, one officer

pepper-sprayed Plaintiff’s face and buttocks, after which Sistrunk pulled up

Plaintiff’s pants. Sec. Am. Compl., § III, ¶ 13. Plaintiff submits medical records

reflecting that he suffered an orbital blowout fracture, vision loss in the right

eye, and other trauma to his head and face that required hospital treatment.

See Pl. Exs. B, C, and D. These injuries cannot be characterized as “de minimis.”

The Court treats as testimony the statements in Plaintiff’s verified

Second Amended Complaint, sworn response, and declaration. Sears, 922 F.3d

at 1206 (citing, inter alia, United States v. Stein, 881 F.3d 853, 857 (11th Cir.

2018)). His allegations, which are based on personal knowledge, “contain ‘non-

conclusory descriptions of specific, discrete facts of the who, what, when, and

where variety.’” Id. at 1208 (quoting Feliciano v. City of Miami Beach, 707 F.3d

1244, 1253 (11th Cir. 2013)). “That [Plaintiff’s] evidence consists mainly of his

happened after Plaintiff was brought to the floor or put in hand restraints, it is possible that

Plaintiff had stopped resisting by the time he was on the floor.

own testimony in his verified complaint, sworn response, and sworn affidavit

does not preclude a finding that a genuine dispute of material fact exists.” Id.

Besides, Plaintiff does not rely exclusively on his own allegations; he submits

medical records documenting the extent of his injuries.

Defendants contend that things happened differently, as set forth in

Sergeant Moore’s declaration, the use-of-force report, and the disciplinary

report. They may be right, but that is not the type of documentary evidence that

can conclusively refute Plaintiff’s allegations at the summary judgment stage.

“Here, the officers’ documentary evidence consists mainly of various forms of

their own testimony.” Sears, 922 F.3d at 1208. “Those reports just pit the

correctional officers’ word against [Plaintiff’s] word.” Id. That presents the

Court with “a classic swearing match, which is the stuff of which jury trials are

made.” Feliciano, 707 F.3d at 1253. And as discussed earlier, the disciplinary

report is silent or vague about what happened after the officers brought

Plaintiff to the floor or placed him in hand restraints. “Here the prison

disciplinary panel decided only that [Plaintiff] committed battery [or attempted

battery] against [Moore]. The panel did not make any factual findings about

what the officers did to [Plaintiff] after that.” Sears, 922 F.3d at 1207.

Taken in the light most favorable to Plaintiff, the facts suggest that

Moore, Sistrunk, and Pharm used force “maliciously and sadistically for the

very purpose of causing harm.” Cockrell, 510 F.3d at 1311. There is also a

genuine dispute whether the “alleged wrongdoing was objectively harmful

enough to establish a constitutional violation.” Hudson, 503 U.S. at 8. Because

Plaintiff alleges facts sufficient to survive summary judgment, “that is the end

of the [qualified immunity] inquiry.” Skrtich, 280 F.3d at 1301.

2. Failure-to-Intervene Allegations Against Rogers and Jackson

Defendants’ Motion generically argues that they are all entitled to

qualified immunity without separately addressing the failure-to-intervene

allegations against Rogers and Jackson. Motion at 9–11. Rogers and Jackson

may believe that their entitlement to qualified immunity derives from Moore’s,

Sistrunk’s, and Pharm’s asserted entitlement to qualified immunity. In other

words, if Moore, Sistrunk, and Pharm are entitled to qualified immunity from

Plaintiff’s excessive force allegations, so are Rogers and Jackson entitled to

qualified immunity for failing to intervene. However, the Court has determined

that Moore, Sistrunk, and Pharm are not entitled to qualified immunity because

there is a genuine question about whether the officers used excessive force.

The Eleventh Circuit has held many times that “an officer who is present

at the scene and who fails to take reasonable steps to protect the victim of

another officer’s use of excessive force can be held personally liable for his

nonfeasance.” Skrtich, 280 F.3d at 1301 (collecting cases). “This liability,

however, only arises when the officer is in a position to intervene and fails to do

so.” Priester v. City of Riviera Beach, 208 F.3d 919, 924 (11th Cir. 2000). “The

principle that an officer must intervene when he or she witnesses

unconstitutional force has been established in this Circuit for decades.” Helm

v. Rainbow City, Ala., 989 F.3d 1265, 1273 (11th Cir. 2021) (citing Priester, 208

F.3d at 927).

Plaintiff avers that Jackson and Rogers stood in the restroom entrance

area during the alleged use of excessive force, watched the entire incident, and

failed to intervene. Sec. Am. Compl., § III, ¶ 14; Plaintiff’s Decl. at 3, ¶ 20.

Stated another way, Plaintiff alleges that Rogers and Jackson witnessed the

alleged attack, that they were in a position to help, and they stood by. Rogers

and Jackson do not really dispute these allegations in their Motion. See

generally Motion. “Because a jury could reasonably infer that [Jackson and

Rogers were] in a position to intervene against [the other officers’] unlawful use

of excessive force against [Plaintiff] and failed to do so, … [Jackson and Rogers

are] not entitled to qualified immunity on [Plaintiff’s] failure to intervene

claim[].” Helm, 989 F.3d at 1281. See also Sears, 922 F.3d at 1209 (“Because

Sears’ sworn testimony is that Dexter, Roberts, and Hart witnessed the incident

but did not attempt to intervene, a genuine issue of material fact precluding

summary judgment for them also exists.” (citing Skrtich, 280 F.3d at 1301)).

VI. Conclusion

The Court does not know the true facts, but it does “know that a genuine

dispute of material fact exists, and it precludes granting summary judgment to

the correctional officers on [Plaintiffs] § 1983 excessive force and deliberate

indifference by failure to intervene claims.” Sears, 922 F.3d at 1209.

Accordingly, it is hereby ORDERED:

1. Defendants’ Motion for Summary Judgment (Doc. 87) is GRANTED to

the extent Plaintiff may not sue Defendants for monetary damages in

their official capacity.

2. Defendant’s Motion for Summary Judgment is otherwise DENIED.

3. The Court determines that the appointment of counsel for Plaintiff is

warranted. Therefore, this case is referred to the Jacksonville Division

Civil Pro Bono Appointment Program so that the designated deputy clerk

of the Court may seek counsel to represent Plaintiff.

DONE AND ORDERED in Jacksonville, Florida this 29th day of June

2021.

A__| JQ

BRIAN J. DAV! :

United States District Judge

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Copies:

Counsel and parties of record

Division Manager

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