Sanders v. Starling

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

CHRISTOPHER SANDERS,

Plaintiff,

v.

Case No. 3:19-cv-430-MMH-JBT

BRIAN STARLING, et al.,

Defendants.

ORDER

I. Status

Plaintiff Christopher Sanders, an inmate of the Florida penal system,

initiated this action on April 16, 2019, by filing a pro se Civil Rights Complaint

(Complaint; Doc. 1).1 In the Complaint, Sanders asserts claims pursuant to 42

U.S.C. § 1983 against the following Defendants: (1) Brian Starling; (2) Sean

Fogarty; (3) Lieutenant Woods; (4) Crystal Waite;2 (5) Carrie Reed; (6) Bryan

Allen; (7) Kelly Brown; (8) Warden Barry Reddish; (9) Mae Harrold; (10) Major

1 For purposes of reference to pleadings and exhibits, the Court will cite

the document page numbers assigned by the Court’s electronic docketing

system.

2 The Court directed the Clerk to correct the name of Defendant C. Fox

to Crystal Waite. See Order (Doc. 107).

M. Honour; (11) Mitchell Mason; (12) Assistant Warden Lane; (13) A. Powell;

(14) John Doe 2; (15) Sharron Braziel-Marshall; (16) Lisa Tyre; (17) Tammy A.

Gibson; (18) Jeffery Beasley; and (19) Jonathan Aikin.3 Sanders alleges that

Defendants mistreated him from January 2017 through August 2017, at

Florida State Prison (FSP). As relief, he requests compensatory and punitive

damages. Additionally, he asks that the Court direct the Florida Department

of Corrections (FDOC) to terminate Defendants’ employment, and order the

State of Florida to revoke Defendants’ medical licenses. See Complaint at 9.

This matter is before the Court on Defendants Crystal Waite and

Sharron Braziel-Marshall’s Motion to Dismiss Plaintiff’s Complaint (Motion;

Doc. 112). The Court advised Sanders that granting a motion to dismiss would

be an adjudication of the case that could foreclose subsequent litigation on the

matter and gave him an opportunity to respond. See Order (Doc. 6). Sanders

filed a response in opposition to the Motion. See Response to Defendants

Marshall and Waites’ Motion to Dismiss (Response; Doc. 116). Thus,

Defendants’ Motion is ripe for review.

3 The Court dismissed Sanders’ claims against Defendants John Doe 2,

Reed, Lane, Beasley, Aikin, Powell, Harrold, and Honour. See Orders (Docs.

111, 98, 83).

2

II. Plaintiff’s Allegations4

Sanders asserts that Defendant Waite violated his Eighth Amendment

right when she, among others, placed Sanders in a cold cell with a broken

window and no clothes or bedding. See Complaint at 10 (count 4). He also states

that Waite violated Sanders’ First Amendment right when she retaliated

against Sanders for witnessing and reporting the beating of inmate Dyshonty

Gordon, FDOC #166312. See id. (counts 5, 8). According to Sanders,

Defendants Waite and Braziel-Marshall violated his Eighth Amendment right

when they conspired with others to inflict physical and emotional harm on

Sanders, see id. (count 7); they failed to follow FDOC procedures and refused

to place Sanders on self-harm observation status (SHOS), see id. at 11 (counts

11, 13); they watched Sanders harm himself and failed to remove him from his

cell for medical treatment, see id. (count 12); they refused to file an incident

report to alert the administration about the abuse, and failed to document and

4 The Complaint is the operative pleading. In considering a motion to

dismiss, the Court must accept all factual allegations in the Complaint as true,

consider the allegations in the light most favorable to the plaintiff, and accept

all reasonable inferences that can be drawn from such allegations. Miljkovic v.

Shafritz and Dinkin, P.A., 791 F.3d 1291, 1297 (11th Cir. 2015) (quotations

and citations omitted). As such, the recited facts are drawn from the Complaint

and may differ from those that ultimately can be proved. Additionally, because

this matter is before the Court on a motion to dismiss filed by Defendants

Waite and Braziel-Marshall, the Court’s recitation of the facts will focus on

Sanders’ allegations as to them.

3

treat Sanders’ injuries, see id. at 12 (counts 15, 16, 17); Waite, among others,

unlawfully sprayed Sanders with chemical agents, see id. at 10-11 (count 9);

and Braziel-Marshall jammed a lavage tube down Sanders’ throat until he spat

blood, see id. at 11, 13 (counts 14, 21), and also falsified documents to cover up

the abuse, see id. at 12 (count 18).

As to the underlying facts, Sanders asserts that he saw a cell extraction

team use excessive force against inmate Dyshonty Gordon on January 27,

2017, and reported the abuse in front of the handheld camera. See id. at 7. He

states that Defendant Waite moved away from “ear shot of the camera” and

told Sanders that “they had something” for him since he wanted to be a

witness. Id. at 7-8. He avers that officers placed him on property restriction on

January 28th for misuse of state property, which he denied. See id. at 8.

Sanders states that when Waite came to his cell with Captain Starling “to act

like they were doing Crisis Intervention Counseling,” Waite instead asked

Sanders if he would exit the cell. Id. at 8. According to Sanders, he showed

Waite a handful of pills (Tegretol 200mg), declared a mental health emergency,

and swallowed the pills in front of Waite and Starling. See id. at 14. He asserts

that Waite stated, “those are just Ibuprofen” and walked away rather than

asking that the officers remove Sanders from the cell. Id. Sanders avers that

officers sprayed him with chemical agents and assaulted him. See id. at 14-15.

4

According to Sanders, Waite performed a lavage in the medical clinic.

See id. at 15. He also states that Starling and Waite “had the cell extraction

team” beat Sanders in the medical clinic. See id. He maintains that Waite

refused to put him in a SHOS cell, and instead Waite, among others, assigned

him to a C-wing cell with a broken window where he suffered for three days in

freezing temperatures with no bedding and only boxer shorts. See id. at 15-16.

According to Sanders, he complained about staff abuse “throughout the

incident,” however, Waite refused to file an incident report. Id. at 16. According

to Sanders, a nurse treated Sanders’ “out of place” shoulder and head injuries

on January 29th, and put Sanders’ name on “the emergency list” to see a

doctor. Id. He asserts that he saw a doctor about his shoulder injury on

February 1, 2017. See id. at 17.

Next, Sanders alleges that officers, on Starling’s behalf, set him up for

abuse on April 23, 2017. See id. at 18. He states that officers assaulted him

and sprayed him with chemical agents. See id. He asserts that a nurse refused

to place him in a SHOS cell when she knew he had swallowed pills. See id.

According to Sanders, when officers placed him in a restraint chair, he “kicked”

one of them “in an attempt to defend” himself as they “clamped the shackles

down” on his ankles. Id. at 18-19. He states that officers assaulted him and

5

escorted him to B-wing, where they left him in a SHOS cell for three days with

injuries to his head, ankles, and wrist. See id.

Sanders also describes staff mistreatment in early May 2017,

culminating in him swallowing pills and the officers’ use of chemical agents on

May 8, 2017. See id. at 19-20. He maintains that two nurses performed a lavage

on him and jammed the tube down his throat until he spat blood. See id. at 21.

According to Sanders, instead of filing an incident report and placing him on

SHOS, one of the nurses told the officers to provide Sanders with a shower and

cell escort. See id. He states that he tried to hang himself in the shower. See

id. He avers that he was placed in a SHOS cell, and then returned to B wing.

See id.

Additionally, Sanders maintains that he declared a mental health

emergency and swallowed “a bunch of pills” on August 3, 2017, due to the

ongoing staff abuse. Id. at 22. He asserts that, in the medical clinic, Defendant

Braziel-Marshall “yanked” his nose back and “jammed” ammonia up his nose,

causing a nosebleed. Id. He also states that Braziel-Marshall unnecessarily

performed a lavage when he “was not refusing to drink the charcoal.” Id. He

states that Braziel-Marshall and another nurse jammed the tube down his

throat until he spat blood. See id. According to Sanders, an officer squeezed his

head and poked his eyes during the lavage, and accused Sanders of kicking a

6

sergeant. See id. He avers that Braziel-Marshall refused to place him on

SHOS. See id. He maintains that officers escorted him to a shower where they

sprayed him (presumably with chemical agents) and he tried to hang himself.

See id. at 23. He asserts that officers returned him to the emergency room

where Braziel-Marshall gave him an Emergency Treatment Order (ETO) shot.

See id. According to Sanders, officers “jumped” him as he left the emergency

room, and Braziel-Marshall “again jammed an ammonia” into his nose. See id.

III. Motion to Dismiss Standard

In ruling on a motion to dismiss, the Court must accept the factual

allegations set forth in the complaint as true. See Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see

also Lotierzo v. Woman’s World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir.

2002). In addition, all reasonable inferences should be drawn in favor of the

plaintiff. See Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). Nonetheless,

the plaintiff must still meet some minimal pleading requirements. Jackson v.

BellSouth Telecomm., 372 F.3d 1250, 1262-63 (11th Cir. 2004) (citations

omitted). Indeed, while “[s]pecific facts are not necessary[,]” the complaint

should “‘give the defendant fair notice of what the . . . claim is and the grounds

upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further,

7

the plaintiff must allege “enough facts to state a claim that is plausible on its

face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the

pleaded factual content allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678

(citing Twombly, 550 U.S. at 556).

A “plaintiff’s obligation to provide the grounds of his entitlement to relief

requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do[.]” Twombly, 550 U.S. at 555 (internal

quotations omitted); see also Jackson, 372 F.3d at 1262 (explaining that

“conclusory allegations, unwarranted deductions of facts or legal conclusions

masquerading as facts will not prevent dismissal”) (internal citation and

quotations omitted). Indeed, “the tenet that a court must accept as true all of

the allegations contained in a complaint is inapplicable to legal conclusions[,]”

which simply “are not entitled to [an] assumption of truth.” Iqbal, 556 U.S. at

678, 680. Thus, in ruling on a motion to dismiss, the Court must determine

whether the complaint contains “sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face[.]’” Id. at 678 (quoting

Twombly, 550 U.S. at 570). And, while “[p]ro se pleadings are held to a less

stringent standard than pleadings drafted by attorneys and will, therefore, be

liberally construed,” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th

8

Cir. 1998), “‘this leniency does not give the court a license to serve as de facto

counsel for a party or to rewrite an otherwise deficient pleading in order to

sustain an action.’” Alford v. Consol. Gov’t of Columbus, Ga., 438 F. App’x 837,

839 (11th Cir. 2011)5 (quoting GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132

F.3d 1359, 1369 (11th Cir. 1998) (internal citation omitted), overruled in part

on other grounds as recognized in Randall, 610 F.3d at 706).

IV. Summary of the Arguments

Defendants Waite and Braziel-Marshall request dismissal of Sanders’

First and Eighth Amendment claims against them. See Motion at 6-23. They

assert that (1) Sanders fails to state plausible claims against them; (2)

Defendants are entitled to qualified immunity; (3) Sanders’ claims for

injunctive relief are moot because the FDOC transferred him from FSP to the

Reception and Medical Center; (4) the Court lacks the authority to direct the

FDOC to terminate Defendants’ employment or to order the State of Florida to

revoke Defendants’ medical licenses; and (5) Sanders’ compensatory and

punitive damages claims are barred by 42 U.S.C. § 1997e(e). In his Response,

5 “Although an unpublished opinion is not binding . . . , it is persuasive

authority.” United States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000) (per

curiam); see generally Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished

opinions are not considered binding precedent, but they may be cited as

persuasive authority.”).

9

Sanders maintains that he states plausible claims against Defendants Waite

and Braziel-Marshall, see Response at 2-8, and that Defendants are not

entitled to qualified immunity, see id. at 8-9. He also argues that he is entitled

to compensatory and punitive damages as well as injunctive relief. See id. at

9-10.

V. Law

A. Eighth Amendment

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1)

the defendant deprived him of a right secured under the United States

Constitution or federal law, and (2) such deprivation occurred under color of

state law. Salvato v. Miley, 790 F.3d 1286, 1295 (11th Cir. 2015); Bingham v.

Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011) (per curiam) (citation omitted);

Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010) (per curiam)

(citations omitted). Moreover, the Eleventh Circuit “requires proof of an

affirmative causal connection between the official’s acts or omissions and the

alleged constitutional deprivation” in § 1983 cases. Zatler v. Wainwright, 802

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

conclusory and vague allegations are required to state a cause of action under

42 U.S.C. § 1983. See L.S.T., Inc., v. Crow, 49 F.3d 679, 684 (11th Cir. 1995)

(per curiam); Fullman v. Graddick, 739 F.2d 553, 556 57 (11th Cir. 1984). As

10

such, “‘conclusory allegations, unwarranted deductions of facts, or legal

conclusions masquerading as facts will not prevent dismissal.’” Rehberger v.

Henry Cnty., Ga., 577 F. App’x 937, 938 (11th Cir. 2014) (per curiam) (citation

omitted). In the absence of well-pled facts suggesting a federal constitutional

deprivation or violation of a federal right, a plaintiff cannot sustain a cause of

action against the defendant.

Pursuant to the Eighth Amendment to the United States Constitution,

“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel

and unusual punishments inflicted.” U.S. Const. amend. VIII. The Eighth

Amendment “imposes duties on [prison] officials, who must provide humane

conditions of confinement; prison officials must ensure that inmates receive

adequate food, clothing, shelter, and medical care, and must ‘take reasonable

measures to guarantee the safety of the inmates.’” Farmer v. Brennan, 511

U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)).

“To establish an Eighth Amendment violation, a prisoner must satisfy both an

objective and subjective inquiry regarding a prison official’s conduct.” Oliver v.

Fuhrman, 739 F. App’x 968, 969 (11th Cir. 2018) (citing Chandler v. Crosby,

379 F.3d 1278, 1289 (11th Cir. 2004)). The Eleventh Circuit has explained:

Under the objective component, a prisoner must

allege a condition that is sufficiently serious to violate

11

the Eighth Amendment. Id.[ 6 ] The challenged

condition must be extreme and must pose an

unreasonable risk of serious damage to the prisoner’s

future health or safety. Id. The Eighth Amendment

guarantees that prisoners are provided with a

minimal civilized level of life’s basic necessities. Id.

Under the subjective component, a prisoner

must allege that the prison official, at a minimum,

acted with a state of mind that constituted deliberate

indifference. Id. This means the prisoner must show

that the prison officials: (1) had subjective knowledge

of a risk of serious harm; (2) disregarded that risk; and

(3) displayed conduct that is more than mere

negligence. Farrow v. West, 320 F.3d 1235, 1245 (11th

Cir. 2003).

Oliver, 739 F. App’x at 969-70. “To be cruel and unusual punishment, conduct

that does not purport to be punishment at all must involve more than ordinary

lack of due care for the prisoner’s interests or safety.” Whitley v. Albers, 475

U.S. 312, 319 (1986).

As it relates to medical care, “[t]he Supreme Court has interpreted the

Eighth Amendment to prohibit ‘deliberate indifference to serious medical

needs of prisoners.’” Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016)

(quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)). The Eleventh Circuit has

instructed:

To prevail on a deliberate indifference claim, [a

plaintiff] must show: “(1) a serious medical need; (2)

6 Chandler, 379 F.3d at 1289.

12

the defendants’ deliberate indifference to that need;

and (3) causation between that indifference and the

plaintiff’s injury.” Mann v. Taser Int’l, Inc., 588 F.3d

1291, 1306-07 (11th Cir. 2009). To establish deliberate

indifference, [a plaintiff] must prove “(1) subjective

knowledge of a risk of serious harm; (2) disregard of

that risk; (3) by conduct that is more than [gross]

negligence.”[7] Townsend v. Jefferson Cnty., 601 F.3d

1152, 1158 (11th Cir. 2010) (alteration in original).

The defendants must have been “aware of facts from

which the inference could be drawn that a substantial

risk of serious harm exist[ed]” and then actually draw

that inference. Farrow v. West, 320 F.3d 1235, 1245

(11th Cir. 2003) (quotation omitted).

Easley v. Dep’t of Corr., 590 F. App’x 860, 868 (11th Cir. 2014). For medical

treatment to rise to the level of a constitutional violation, the care must be “‘so

grossly incompetent, inadequate, or excessive as to shock the conscience or to

be intolerable to fundamental fairness.’” Hoffer v. Sec’y, Fla. Dep’t of Corr., 973

F.3d 1263, 1271 (11th Cir. 2020) (quoting Harris v. Thigpen, 941 F.2d 1495,

1505 (11th Cir.1991)); see also Waldrop v. Evans, 871 F.2d 1030, 1033 (11th

Cir. 1989) (stating “[g]rossly incompetent or inadequate care can constitute

deliberate indifference …, as can a doctor’s decision to take an easier and less

efficacious course of treatment” or fail to respond to a known medical problem).

7 See Patel v. Lanier Cnty. Ga., 969 F.3d 1173, 1188 n.10 (11th Cir. 2020)

(recognizing “a tension” within Eleventh Circuit precedent relating to the

“more than mere negligence” and “more than gross negligence” phrases and

stating that “no matter how serious the negligence, conduct that can’t fairly be

characterized as reckless won’t meet the Supreme Court’s standard”).

13

Notably, the law is well-settled that the Constitution is not implicated

by the negligent acts of corrections officials and medical personnel. Daniels v.

Williams, 474 U.S. 327, 330-31 (1986); Davidson v. Cannon, 474 U.S. 344, 348

(1986) (“As we held in Daniels, the protections of the Due Process Clause,

whether procedural or substantive, are just not triggered by lack of due care

by prison officials.”). A complaint that a physician has been negligent “in

diagnosing or treating a medical condition does not state a valid claim of

medical mistreatment under the Eighth Amendment.” Bingham v. Thomas,

654 F.3d 1171, 1176 (11th Cir. 2011) (quotation marks and citation omitted).

Moreover, the Eleventh Circuit has stated that “[n]othing in our case law

would derive a constitutional deprivation from a prison physician’s failure to

subordinate his own professional judgment to that of another doctor; to the

contrary, it is well established that ‘a simple difference in medical opinion’ does

not constitute deliberate indifference.” Bismark v. Fisher, 213 F. App’x 892,

897 (11th Cir. 2007) (quoting Waldrop, 871 F.2d at 1033). Similarly, “the

question of whether governmental actors should have employed additional

diagnostic techniques or forms of treatment ‘is a classic example of a matter

for medical judgment’ and therefore not an appropriate basis for grounding

liability under the Eighth Amendment.” Adams v. Poag, 61 F.3d 1537, 1545

(11th Cir. 1995) (citation omitted).

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B. Qualified Immunity

With respect to qualified immunity, the Eleventh Circuit has instructed:

The qualified-immunity defense reflects an

effort to balance “the need to hold public officials

accountable when they exercise power irresponsibly

and the need to shield officials from harassment,

distraction, and liability when they perform their

duties reasonably.” Pearson v. Callahan, 555 U.S. 223,

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

doctrine resolves this balance by protecting

government officials engaged in discretionary

functions and sued in their individual capacities

unless they violate “clearly established federal

statutory or constitutional rights of which a

reasonable person would have known.” Keating v. City

of Miami, 598 F.3d 753, 762 (11th Cir. 2010) (quotation

marks and brackets omitted).

As a result, qualified immunity shields from

liability “all but the plainly incompetent or one who is

knowingly violating the federal law.” Lee v. Ferraro,

284 F.3d 1188, 1194 (11th Cir. 2002). But the

doctrine’s protections do not extend to one who “knew

or reasonably should have known that the action he

took within his sphere of official responsibility would

violate the constitutional rights of the [plaintiff].”

Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct.

2727, 73 L.Ed.2d 396 (1982) (internal quotation marks

and alteration omitted).

To invoke qualified immunity, a public official

must first demonstrate that he was acting within the

scope of his or her discretionary authority. Maddox v.

Stephens, 727 F.3d 1109, 1120 (11th Cir. 2013). As we

have explained the term “discretionary authority,” it

“include[s] all actions of a governmental official that

(1) were undertaken pursuant to the performance of

15

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

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

Cir. 1994) (internal quotation marks omitted). Here, it

is clear that Defendant Officers satisfied this

requirement, as they engaged in all of the challenged

actions while on duty as police officers conducting

investigative and seizure functions.

Because Defendant Officers have established

that they were acting within the scope of their

discretionary authority, the burden shifts to [plaintiff]

to demonstrate that qualified immunity is

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

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

the facts demonstrate that Defendant Officers violated

[plaintiff’s] constitutional right and that that right

was “clearly established ... in light of the specific

context of the case, not as a broad general

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

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

2151, 150 L.Ed.2d 272 (2001), overruled in part on

other grounds by Pearson, 555 U.S. 223, 129 S.Ct. 808.

We may decide these issues in either order, but, to

survive a qualified immunity defense, [the plaintiff]

must satisfy both showings. Maddox, 727 F.3d at 1120-

21 (citation omitted).

Jones v. Fransen, 857 F.3d 843, 850-51 (11th Cir. 2017); see King v. Pridmore,

961 F.3d 1135, 1142 (11th Cir. 2020). The Court notes that where the alleged

conditions are particularly egregious, a general constitutional law already

identified in decisional law may be applicable such that a reasonable officer

would know that the egregious conditions violate the Constitution. Taylor v.

Riojas, 141 S. Ct. 52 (2020). In an action with multiple named defendants, each

16

defendant is entitled to an independent qualified immunity analysis as it

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

VI. Discussion

A. Eighth Amendment Cell Conditions – Count 4

Sanders asserts that Defendant Waite violated Sanders’ Eighth

Amendment right when she, among others, placed Sanders in a cold cell with

a broken window and no clothes or bedding on January 28, 2017. See

Complaint at 10, 15-16. He describes the circumstances (including swallowing

pills and a visit to the medical clinic for a lavage) that led to the cell

assignment. See id. at 14-16. According to Sanders, officers took Sanders to the

C-wing cell because Waite refused to put him in a SHOS cell. See id. at 15-16.

Defendant Waite maintains that Sanders fails to state a plausible Eighth

Amendment claim against her. See Motion at 6-7. She asserts that Sanders

“presents no factual support” for his assertion that she knew the cell had

subpar conditions. Id. at 6. Additionally, Waite argues that Sanders fails to

show a causal connection between her conduct and an Eighth Amendment

violation because she “has no control over cell assignments.” Id. at 7. In his

Response, Sanders states that Waite “allowed other defendants” to place him

in a “non-certified” freezing cell with no clothes or bedding. Response at 3-4.

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According to Sanders, Waite had “the power to choose” the type of cell that best

suited Sanders’ needs. Id. at 4.

Even if Sanders satisfied the objective prong of a conditions-of-

confinement claim with respect to the alleged three-day exposure to subpar

conditions, he has not provided facts sufficient to satisfy the subjective prong.

Sanders provides no facts supporting an inference that Defendant Waite knew

of, yet disregarded, “a substantial risk of harm” to Sanders. Saunders v. Sheriff

of Brevard Cnty., 735 F. App’x 559, 564 (11th Cir. 2018) (per curiam) (citation

omitted). Taking Sanders’ allegations as true, as the Court must, he provides

a detailed chronology of what transpired before officers escorted him to the C-

wing cell. Given those circumstances as described by Sanders, Waite was faced

with Sanders’ urgent medical needs when officers escorted him to the medical

clinic. As a medical professional, Waite was responsible for addressing

Sanders’ medical needs in the infirmary that day, which she did. See

Complaint at 15. Sanders fails to allege any facts suggesting that Waite had a

duty to escort Sanders to his C-wing cell and monitor the conditions of the cell

that he temporarily occupied.

To the extent Sanders is complaining about Waite’s SHOS decision and

the course of treatment chosen, such a complaint would be at most a claim of

negligence or a disagreement with Waite’s medical treatment choice, neither

18

of which is sufficient to state a claim of deliberate indifference to a serious

medical need. See Brown v. McClure, 849 F. App’x 837, 841-42 (11th Cir. 2021)

(per curiam) (“As we have said, where a ‘prisoner has received some medical

attention and the dispute is over the adequacy of the treatment,’ we are

‘generally reluctant to second guess medical judgments and to

constitutionalize claims which sound in state tort law.’”) (citing Hoffer, 973

F.3d at 1272). Notably, the next day (January 29th), Sanders saw another

nurse who attended to his medical needs related to a shoulder injury, not

ailments related to the cell conditions. See id. at 16. As such, Defendants’

Motion as to Sanders’ Eighth Amendment claim in count 4 against Defendant

Waite is due to granted.

B. First Amendment Retaliation – Counts 5 and 8

Sanders asserts that Defendant Waite retaliated against him for

reporting the alleged beating of another inmate. See Complaint at 10.

According to Sanders, the retaliatory measures included physical and

emotional harm and medical mistreatment. See id. Defendant Waite maintains

that Sanders fails to state a plausible First Amendment retaliation claim

against her. See Motion at 7-12. In his Response, Sanders asserts that he states

a plausible claim against her. See Response at 4-5.

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As to a First Amendment retaliation claim, the Eleventh Circuit has

instructed:

[T]he First Amendment prohibits officials from

retaliating against prisoners for exercising their right

of free speech by filing lawsuits or grievances.

O'Bryant v. Finch, 637 F.3d 1207, 1212 (11th Cir.

2011) (per curiam). To prevail on a retaliation claim,

[the plaintiff] must establish that: “(1) his speech was

constitutionally protected; (2) [he] suffered adverse

action such that the [official’s] allegedly retaliatory

conduct would likely deter a person of ordinary

firmness from engaging in such speech; and (3) there

is a causal relationship between the retaliatory action

... and the protected speech.” Id. (second alteration in

original). Once the plaintiff establishes that protected

conduct was a motivating factor for the alleged harm,

the burden shifts to the defendant to show it would

have taken the same action without the protected

activity. Smith v. Fla. Dep’t of Corr., 713 F.3d 1059,

1063 (11th Cir. 2013).

Mpaka v. Jackson Memorial Hospital, 827 F. App’x 1007, 1010 (11th Cir. 2020).

Here, even if Sanders’ speech was constitutionally protected and Waite’s

alleged retaliatory conduct likely would have deterred a person of ordinary

firmness from engaging in such speech, Sanders’ assertions fail to establish the

required causal connection between the retaliatory action and the protected

speech. Sanders’ retaliation claim against Defendant Waite largely hinges on

the actions of others, such as corrections officials who allegedly used excessive

force against Sanders when he refused to exit his cell on January 28, 2017.

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According to Sanders, Captain Starling placed Sanders on property restriction

and directed that other officers spray Sanders with chemical agents because

he had refused a strip search. See Complaint at 8, 14. Waite’s involvement was

limited to her role as a medical professional. According to Sanders, Waite

conducted crisis intervention counseling at Sanders’ cell front, asked Sanders

if he would exit the cell on his own, and performed a lavage to save his life

when officers brought him to the medical clinic. See id. at 14-15. These

allegations fail to support a plausible claim for retaliation against Waite. As

such, Defendants’ Motion as to Sanders’ First Amendment retaliation claims

in counts 5 and 8 against Waite is due to granted.

C. Conspiracy – Count 7

Sanders asserts that Defendants Waite and Braziel-Marshall violated

his Eighth Amendment right when they conspired with other prison staff

members to harm him. See Complaint at 10. Defendants maintain that

Sanders fails to state a plausible conspiracy claim against them. See Motion at

11-12. In his Response, Sanders generally asserts that Defendants worked

with others to inflict emotional and physical harm upon him. See Response.

“[T]he linchpin for conspiracy is agreement, which presupposes

communication.” Bailey v. Bd. of Cnty. Comm’rs of Alachua Cnty., Fla., 956

F.2d 1112, 1122 (11th Cir. 1992). Sanders need not “produce a ‘smoking gun’

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to establish the ‘understanding’ or ‘willful participation’ required to show a

conspiracy, but must show some evidence of agreement between the

defendants.” Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1283-84 (11th

Cir. 2002) (quoting Bendiburg v. Dempsey, 909 F.2d 463, 469 (11th Cir. 1990))

(internal citation omitted). In the Complaint, Sanders provides no facts

suggesting that Waite and Braziel-Marshall reached an understanding or

agreement with other prison staff members to use excessive force against

Sanders and inflict emotional harm. As such, Defendants’ Motion as to

Sanders’ conspiracy claim in count 7 against them is due to be granted.

D. Chemical Spraying – Count 9

Next, Sanders asserts that Defendant Waite, among others, unlawfully

sprayed Sanders with chemical agents. See Complaint at 10-11. Defendant

Waite maintains that Sanders fails to state a plausible Eighth Amendment

claim against her because he provides no facts that Waite sprayed him with

chemical agents or directed someone else to do it. See Motion at 12.

Additionally, Waite states that Sanders does not allege that Waite was present

when prison security staff sprayed him with chemical agents. See id. In his

Response, Sanders asserts that Waite encouraged the cell extraction team to

beat him and failed to intervene when corrections officers abused him in the

medical clinic. See Response at 6.

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Notably, Sanders provides no facts suggesting that Defendant Waite

sprayed Sanders with chemical agents or had the authority to direct the

extraction team to physically abuse Sanders. Sanders acknowledges that, after

trying to counsel Sanders, Waite returned to the medical clinic where she

attended to Sanders’ medical needs. As such, Defendants’ Motion as to

Sanders’ Eighth Amendment claim in count 9 against Defendant Waite is due

to be granted.

E. Eighth Amendment Medical (and Related) Claims

Sanders also asserts that Defendants Waite and Braziel-Marshall

violated his Eighth Amendment right when they failed to follow FDOC

procedures and refused to place Sanders in a SHOS cell, see Complaint at 11

(counts 11, 13); they watched Sanders harm himself and failed to remove him

from his cell for medical treatment, see id. (count 12); they refused to file an

incident report to alert the administration about staff abuse, and failed to

document and treat Sanders’ injuries, see id. at 12 (counts 15, 16, 17).

Additionally, he states that Waite performed a lavage on January 28, 2017,

and Braziel-Marshall used ammonia and conducted a lavage on August 3,

2017, see id. at 11, 13 (counts 14, 21). And, Sanders states that Braziel-

Marshall falsified documents to cover up staff abuse, see id. at 12 (count 18).

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Sanders maintains that Waite and Braziel-Marshall mistreated him on

January 28th and August 3rd, respectively, after Sanders’ suicide attempts.

See id. at 15-16, 22-23. According to Sanders, on both occasions, officers

escorted him to the infirmary to have his stomach pumped because he had

swallowed pills. See id. at 14-15, 22. He complains that Waite was verbally

abusive, and said she would not place him on SHOS. See id. at 15. He states

that he again swallowed pills on April 23rd and May 8th, and blames other

nurses for similar conduct.8 He avers that, after he ingested pills on August

3rd, Braziel-Marshall placed ammonia up his nose, performed a lavage on him

by jamming the tube down his throat until he spat blood, and gave him an ETO

shot. See id. at 21-23. According to Sanders, Braziel-Marshall initially refused

his request for SHOS, but he was placed on SHOS that same day after he tried

to hang himself in the shower. See id. at 23. Defendants maintain that Sanders

fails to state plausible Eighth Amendment claims against them. See Motion at

13-21. In his Response, Sanders asserts that he states plausible Eighth

Amendment claims against them. See Response at 2-8.

8 Sanders makes similar assertions about other nurses who allegedly

mistreated him on April 23, 2017, and May 8, 2017, after his suicide attempts.

See Complaint at 18-21.

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Sanders’ assertions relating to Waite and Braziel-Marshall’s provision of

medical care fail to state plausible Eighth Amendment deliberate indifference

claims against them. Accepting Sanders’ allegations in the Complaint, Waite

and Braziel-Marshall provided Sanders with immediate medical treatment

when he swallowed pills on January 28th and August 3rd, and Sanders was

ultimately placed on SHOS as a result of his suicidal tendencies. To the extent

Sanders is complaining about the lavage procedures and course of treatment

chosen as a result of his self-harm, such a complaint would be at most a claim

of negligence or a disagreement with Waite and Braziel-Marshall’s medical

treatment choice, neither of which is sufficient to state a claim of deliberate

indifference to a serious medical need. See Brown, 849 F. App’x at 841-42. The

medical attention Sanders received from Defendants Waite and Braziel-

Marshall is not “so reckless or conscience-shocking as to constitute deliberate

indifference.” Hoffer, 973 F.3d at 1278. Thus, taking Sanders’ allegations as

true, as this Court must, he fails to state plausible Eighth Amendment

deliberate indifference claims against Defendants Waite and Braziel-Marshall.

Thus, Defendants’ Motion is due to be granted as to Sanders’ Eighth

Amendment deliberate indifference claims in counts 11-14, 17, and 21 against

Defendants Waite and Braziel-Marshall.

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As to any alleged verbal abuse or insulting gestures on the part of

Defendant Waite, such allegations do not state a claim of federal constitutional

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

Cir. 2008) (per curiam). Nor can Sanders’ assessment of Waite’s “bedside

manner” support “an inference of deliberate indifference.” Bismark, 213 F.

App’x at 897 (“While [plaintiff] objects to [defendant]’s apparently brusque

mannerisms, it is not a violation of the Eighth Amendment for a prison

physician to consult with a prisoner concerning a medical condition in an aloof

or unfriendly way. Much more is required.”) (citing Harris v. Thigpen, 941 F.2d

1495, 1505 (11th Cir. 1991)) (footnote omitted).

Next, Sanders complains that Defendants Waite and Braziel-Marshall

failed to file an incident report to alert the prison administration about the

abuse Sanders had encountered, and they refused to document his injuries.

See Complaint at 12, 16. He also asserts that Braziel-Marshall falsified

documents to cover up the abuse. See id. at 12. Section 1983 provides a cause

of action for the deprivation of any rights, privileges, or immunities secured by

the Constitution or federal law, not for violations of prison regulations. 42

U.S.C. § 1983. Notably, a violation of departmental rules or policies, standing

alone, does not infringe upon an inmate’s constitutional rights. See Sandin v.

Conner, 515 U.S. 472, 481-82 (1995) (recognizing that “prison regulations [are]

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primarily designed to guide correctional officers in the administration of a

prison” and “such regulations [are] not designed to confer rights on inmates”);

Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970) (emphasizing that a §

1983 plaintiff must prove the defendant deprived him of a right secured by the

Constitution or laws of the United States).

As health care professionals, Waite and Braziel-Marshall are responsible

for providing medical care to inmates, such as Sanders, which they did. Taking

Sanders’ allegations as true, Waite and Braziel-Marshall, among other medical

personnel, focused their efforts on the emergencies at hand, which was

treatment of Sanders’ self-inflicted injuries on the four occasions Sanders

describes in the Complaint. Sanders provides no facts suggesting that Waite

and Braziel-Marshall witnessed abusive events that warranted the filing of

incident reports. Nor did Sanders provide any facts relating to his claims that

they failed to document his injuries to cover up ongoing staff abuse or that

Braziel-Marshall falsified documents. As such, Defendants’ Motion is due to be

granted as to Sanders’ Eighth Amendment claims in counts 15, 16, and 18

against Defendants Waite and Braziel-Marshall.

F. Qualified Immunity

Defendants Waite and Braziel-Marshall assert that they are entitled to

qualified immunity from liability under 42 U.S.C. § 1983. See Motion at 19-21.

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In his Response, Sanders maintains that they are not entitled to qualified

immunity. See Response at 8-9. Under the doctrine of qualified immunity,

Defendants Waite and Braziel-Marshall may claim they are entitled to

qualified immunity from monetary damages in their individual capacities. As

to the underlying facts against each Defendant, Sanders asserts that

Defendants Waite and Braziel-Marshall mistreated him on January 28, 2017,

and August 3, 2017, respectively, when they attended to Sanders’ medical

needs after his suicidal gestures and failed to take measures to correct the

injustices that Sanders experienced when he repeatedly tried to harm himself.

Defendants were engaged in discretionary functions during the events at issue.

Thus, to defeat qualified immunity with respect to these Defendants, Sanders

must show both that Defendants committed a constitutional violation, and that

the constitutional right violated was clearly established. As the Eleventh

Circuit has instructed, the Court must “parse” the actions each Defendant

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

F.3d at 952.

For the reasons set forth above, the Court has found that Sanders has

failed to state plausible Eighth Amendment claims against either Defendant

Waite or Defendant Braziel-Marshall or a plausible First Amendment claim

against Defendant Waite. Thus, Defendants Waite and Braziel-Marshall are

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entitled to qualified immunity from monetary damages in their individual

capacities as to Sanders’ Eighth Amendment claims against them.

Additionally, Defendant Waite is entitled to qualified immunity from monetary

damages in her individual capacity as to Sanders’ First Amendment claim

against her. As such, Defendants’ Motion as to their assertion of qualified

immunity with respect to Sanders’ First and Eighth Amendment claims is due

to be granted.9

In consideration of the foregoing, it is now

ORDERED:

1. Defendants Waite and Braziel-Marshall’s Motion to Dismiss (Doc.

112) is GRANTED, and Sanders’ First and Eighth Amendment claims in

counts 4-5, 7-9, 11-18, and 21 against them are DISMISSED.

2. The Clerk shall terminate Crystal Waite and Sharron Braziel-

Marshall as Defendants in the case.

9 The Court need not address Defendants’ assertions as to Sanders’

requests for injunctive and monetary relief. See Motion at 21-23. Nevertheless,

the Court notes that the FDOC transferred Sanders back to FSP. See FDOC

Corrections Offender Network, www.dc.state.fl.us/offenderSearch (last visited

July 7, 2021). Additionally, the Court neither has the authority to direct the

FDOC to terminate Defendants’ employment nor to order the State of Florida

to revoke Defendants’ medical licenses.

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3. Defendants Brian Starling, Sean Fogarty, Lieutenant Woods,

Bryan Allen, Kelley Brown, Warden Reddish, Mitchell Mason, Lisa Tyre, and

Tammy Gibson filed Answers. See Docs. 60, 74, 81, 88. The Court, by separate

Order, will set deadlines for discovery and the filing of dispositive motions.

DONE AND ORDERED at Jacksonville, Florida, this 19th day of July,

2021.

MARCIA MORALES HOWARD

United States District Judge

Jax-1 7/19

C:

Christopher Sanders, FDOC #R24565

Counsel of Record

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