Palmer v. Hampton

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

LESAMUEL PALMER, A/K/A

KING ZULU M. ALI SHABAZZ,

Plaintiff,

v.

Case No. 3:19-cv-780-MMH-MCR

L. HAMPTON, et al.,

Defendants.

ORDER

I. Status

Plaintiff LeSamuel Palmer, an inmate of the Florida penal system,

initiated this action on June 28, 2019, by filing a pro se Civil Rights Complaint

(Doc. 1). He filed an Amended Complaint (Doc. 6) on August 16, 2019, and a

Second Amended Complaint (SAC; Doc. 31) on June 29, 2020.1 In the SAC,

Palmer asserts claims pursuant to 42 U.S.C. § 1983 (related to a May 23, 2019

chemical spraying and cell extraction at Union Correctional Institution (UCI))

1 In referencing documents filed in this case, the Court cites to the document

and page numbers as assigned by the Court’s Electronic Case Filing System.

against Defendants L. Hampton, W. Oliver, J. Bryan, and E.A. Biascochea.2

As relief, Palmer requests monetary, injunctive, and declaratory relief.

This matter is before the Court on Defendants’ Motion for Summary

Judgment (Motion; Doc. 41). They submitted exhibits in support of the Motion.

See Docs. 41-1 through 41-15; S-44. The Court advised Palmer of the provisions

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

to dismiss or a motion for summary judgment would represent a final

adjudication of this case which may foreclose subsequent litigation on the

matter, and gave him an opportunity to respond to the Motion. See Order (Doc.

7); Summary Judgment Notice (Doc. 43). Palmer filed a response in opposition

to the Motion, see Response (Doc. 53), with exhibits, see Docs. 53-1 through 53-

4. The Motion is ripe for review.

II. Plaintiff’s Allegations3

In his SAC, Palmer alleges that Defendants Hampton, Oliver, and

Bryan, as members of a cell extraction team, violated his Eighth Amendment

right when they assaulted him in cell 2210 at UCI’s V dormitory on the

afternoon of May 23, 2019. See SAC at 3-5. Additionally, he states that

2 The Court dismissed Decubellis as a Defendant. See Order (Doc. 48).

3 The recited facts are drawn from the SAC.

2

Defendant Biascochea violated his Eighth Amendment right when she

authorized the chemical spraying and cell extraction. See id. He also asserts

that Biascochea violated his Eighth and Fourteenth Amendment rights when

she assigned him to S dormitory where he endured subpar conditions and was

treated differently than close management (CM) inmates who were housed in

U and V dormitories. See id.

As to the specific underlying facts, Palmer alleges that, after the

application of chemical agents, Hampton asked Palmer if he would “submit to

cuff[s],” and Palmer said, “yes.” Id. at 5. Palmer states that Hampton opened

the cell door’s flap, and Palmer gave Hampton his clothes. Id. According to

Palmer, he obeyed Hampton’s directive “to bend over” and “to pull butt cheeks

apart,” but Hampton ordered Palmer “to repeat it over and over[,] stating

[Palmer] didn’t do it right.” Id. Palmer maintains that he complied. See id.

Palmer also avers that Hampton told Lieutenant Jackson that he refused to

comply. See id. According to Palmer, Biascochea obtained the Warden’s

permission for the cell extraction when she knew Palmer had not refused

Hampton’s orders, and gave the “call order” to Lieutenant Jackson who

directed Hampton, Oliver, and Bryan to extract Palmer from the cell. Id. at 6.

Palmer asserts that Hampton, Oliver, and Bryan “rushed in the cell and

started beating” him. Id. He states that they kicked and punched him. See id.

3

He maintains that he was nude and screamed he was not resisting Defendants’

efforts to restrain him, however, they continued to beat him. See id. According

to Palmer, Hampton grabbed Palmer’s “penis and balls and pulled and

twist[ed] them,” and punched the back of Palmer’s head “using the handcuffs

as brass knockers.” Id. He avers that Hampton, Oliver, and Bryan yelled “stop

resisting” and continued to assault Palmer until Lieutenant Jackson said,

“that’s enough,” and directed Defendants to “back off.” Id. Palmer maintains

that Lieutenant Jackson ordered Defendants to clothe Palmer in undershorts.

See id. He describes his injuries as a bleeding knot on the back of his head,

swollen hands, and difficulties urinating. See id. at 5.

Palmer avers that Biascochea ignored his complaints about Hampton’s

abuse, and neither reported the abuse nor allowed Palmer to seek medical

attention. See id. at 6. According to Palmer, Biascochea refused to give him

clothes, bedding, soap, toothpaste, a toothbrush, and tissue in S dormitory. See

id. He complains that he ate with cardboard utensils that cut his mouth, drank

hot coffee from a “paper cone cup,” and was in “full[] restraint[s]” with “a spit

mask over his whole head” when he left his cell. Id.

III. Summary Judgment Standard

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

court shall grant summary judgment if the movant shows that there is no

4

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).4 An

issue is genuine when the evidence is such that a reasonable jury could return

a verdict in favor of the non-moving party. Mize v. Jefferson City Bd. of Educ.,

93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A] mere scintilla of evidence in support

of the non-moving party’s position is insufficient to defeat a motion for

summary judgment.” Kesinger ex rel. Estate of Kesinger v. Herrington, 381

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

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

Amends.

The standard for granting summary judgment remains

unchanged. The language of subdivision (a) continues to

require that there be no genuine dispute as to any material

fact and that the movant be entitled to judgment as a

matter of law. The amendments will not affect continuing

development of the decisional law construing and applying

these phrases.

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

binding, they are highly persuasive.” Campbell v. Shinseki, 546 F. App’x 874, 879 n.3

(11th Cir. 2013). Thus, case law construing the former Rule 56 standard of review

remains viable.

5

F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477

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

The party seeking summary judgment bears the initial burden of

demonstrating to the court, by reference to the record, that there are no

genuine issues of material fact to be determined at trial. See Clark v. Coats &

Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). “When a moving party has

discharged its burden, the non-moving party must then go beyond the

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

interrogatories, and admissions on file, designate specific facts showing that

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

590, 593-94 (11th Cir. 1995) (internal citations and quotation marks omitted).

Substantive law determines the materiality of facts, and “[o]nly disputes over

facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248.

In determining whether summary judgment is appropriate, a court “must view

all evidence and make all reasonable inferences in favor of the party opposing

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

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

1578 (11th Cir. 1994)). “Summary judgment is improper, however, if the

evidence is such that a reasonable jury could return a verdict for the

6

nonmoving party.” Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 720 (11th

Cir. 2019) (quotation marks and citation omitted).

IV. Summary of the Arguments

In the Motion, Defendants maintain that there are no genuine issues of

material fact, and therefore, the Court should grant summary judgment in

their favor as to Palmer’s Eighth and Fourteenth Amendment claims against

them. See Motion at 8-19. They also assert that they are entitled to qualified

immunity. See id. at 19-20. Additionally, they contend that Palmer is not

entitled to compensatory and punitive damages under 42 U.S.C. § 1997e(e)

because he has not alleged any physical injury resulting from Defendants’ acts

and/or omissions. See id. at 20-22. In his Response, Palmer maintains that

Defendants are not entitled to summary judgment in their favor as to his

Eighth and Fourteenth Amendment claims against them. See Response at 5-

8, 11-18. He also asserts that he is entitled to compensatory and punitive

damages as well as injunctive and declaratory relief. See id. at 9-11, 18-19.5

5 Palmer states that he is not seeking monetary damages from Defendants in

their official capacities. See Response at 18; see also Order (Doc. 20) at 11.

7

V. Law

A. Excessive Use of Force

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. With respect to

the appropriate analysis in an excessive use of force case, the Eleventh Circuit

has explained:

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

good faith effort to maintain or restore discipline, or

maliciously and sadistically to cause harm.” Hudson v.

McMillian, 503 U.S. 1, 112 S.Ct. 995, 999, 117 L.Ed.2d

156 (1992). In determining whether force was applied

maliciously and sadistically, we look to five factors:

“(1) the extent of injury; (2) the need for application of

force; (3) the relationship between that need and the

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

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

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

reasonably perceived by the responsible officials on the

basis of facts known to them]. . .” Campbell v. Sikes,

169 F.3d 1353, 1375 (11th Cir. 1999) (quotations

omitted).

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

considering these factors, courts “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 v.

8

Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007) (quoting Bennett v. Parker, 898

F.2d 1530, 1533 (11th Cir. 1990)).

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

necessarily excludes from constitutional recognition de minimis uses of

physical force, provided that the use of force is not of a sort repugnant to the

conscience of mankind.” Hudson v. McMillian, 503 U.S. 1, 9-10 (1992) (internal

quotations and citations omitted). Indeed, not “every malevolent touch by a

prison guard gives rise to a federal cause of action.” Id. at 9 (citation omitted).

Notably, a lack of serious injury, while not dispositive, is relevant to the

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

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

curiam)). The United States Supreme Court has explained:

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

factor that may suggest ‘whether the use of force could

plausibly have been thought necessary’ in a particular

situation.” Ibid.[6] (quoting Whitley,[7] supra, at 321,

106 S.Ct. 1078). The extent of injury may also provide

some indication of the amount of force applied. . . . An

inmate who complains of a “‘push or shove’” that

causes no discernible injury almost certainly fails to

state a valid excessive force claim. Id., at 9 (quoting

6 Hudson, 503 U.S. at 7.

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

9

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

1973)).[8]

Injury and force, however, are only imperfectly

correlated, and it is the latter that ultimately counts.

An inmate who is gratuitously beaten by guards does

not lose his ability to pursue an excessive force claim

merely because he has the good fortune to escape

without serious injury.

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

B. Conditions of Confinement

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

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

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

constitutional rights.”).

10

the Eighth Amendment. Id.[ 9 ] 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).

C. Supervisory Liability

As to supervisory liability, the Eleventh Circuit has stated:

“Supervisory officials are not liable under

section 1983 on the basis of respondeat superior or

vicarious liability.” Belcher v. City of Foley, Ala., 30

F.3d 1390, 1396 (11th Cir. 1994) (internal quotation

marks and citation omitted). “The standard by which

a supervisor is held liable in her individual capacity

for the actions of a subordinate is extremely rigorous.”

Gonzalez, 325 F.3d at 1234 (internal quotation marks

9 Chandler, 379 F.3d at 1289.

11

and citation omitted).[10] “Supervisory liability occurs

either when the supervisor personally participates in

the alleged constitutional violation or when there is a

causal connection between actions of the supervising

official and the alleged constitutional deprivation.”

Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990).

“The necessary causal connection can be

established ‘when a history of widespread abuse puts

the responsible supervisor on notice of the need to

correct the alleged deprivation, and he fails to do so.’”

Cottone, 326 F.3d at 1360 (citation omitted).[11] “The

deprivations that constitute widespread abuse

sufficient to notify the supervising official must be

obvious, flagrant, rampant and of continued duration,

rather than isolated occurrences.” Brown, 906 F.2d at

671. A plaintiff can also establish the necessary causal

connection by showing “facts which support an

inference that the supervisor directed the

subordinates to act unlawfully or knew that the

subordinates would act unlawfully and failed to stop

them from doing so,” Gonzalez, 325 F.3d at 1235, or

that a supervisor’s “custom or policy . . . resulted in

deliberate indifference to constitutional rights,” Rivas

v. Freeman, 940 F.2d 1491, 1495 (11th Cir. 1991).

Danley v. Allen, 540 F.3d 1298, 1314 (11th Cir. 2008) (overruled on other

grounds as recognized by Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010)

(rejecting the application of a heightened pleading standard for § 1983 cases

involving qualified immunity)); see also Keith v. DeKalb Cnty., Ga., 749 F.3d

1034, 1047-48 (11th Cir. 2014). In sum,

10 Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003).

11 Cottone v. Jenne, 326 F.3d 1352 (11th Cir. 2003).

12

To state a claim against a supervisory defendant, the

plaintiff must allege (1) the supervisor’s personal

involvement in the violation of his constitutional

rights,[12] (2) the existence of a custom or policy that

resulted in deliberate indifference to the plaintiff's

constitutional rights,[ 13 ] (3) facts supporting an

inference that the supervisor directed the unlawful

action or knowingly failed to prevent it,[14 ] or (4) a

history of widespread abuse that put the supervisor on

notice of an alleged deprivation that he then failed to

correct. See id. at 1328-29 (listing factors in context of

summary judgment).[15 ] A supervisor cannot be held

liable under § 1983 for mere negligence in the training

or supervision of his employees. Greason v. Kemp, 891

F.2d 829, 836-37 (11th Cir. 1990).

Barr v. Gee, 437 F. App’x 865, 875 (11th Cir. 2011) (per curiam).

D. Qualified Immunity

The Eleventh Circuit has stated:

The qualified-immunity defense reflects an

effort to balance “the need to hold public officials

12 See Goebert v. Lee Cnty., 510 F.3d 1312, 1327 (11th Cir. 2007) (“Causation,

of course, can be shown by personal participation in the constitutional violation.”).

13 See Goebert, 510 F.3d at 1332 (“Our decisions establish that supervisory

liability for deliberate indifference based on the implementation of a facially

constitutional policy requires the plaintiff to show that the defendant had actual or

constructive notice of a flagrant, persistent pattern of violations.”).

14 See Douglas v. Yates, 535 F.3d 1316, 1322 (11th Cir. 2008) (“Douglas’s

complaint alleges that his family informed [Assistant Warden] Yates of ongoing

misconduct by Yates’s subordinates and Yates failed to stop the misconduct. These

allegations allow a reasonable inference that Yates knew that the subordinates would

continue to engage in unconstitutional misconduct but failed to stop them from doing

so.”).

15 See West v. Tillman, 496 F.3d 1321 (11th Cir. 2007).

13

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

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.

14

Because Defendant Officers have established

that they were acting within the scope of their

discretionary authority, the burden shifts to [plaintiff]

to demonstrate that qualified immunity is

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

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

the facts demonstrate that Defendant Officers violated

[plaintiff’s] constitutional right and that that right

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

context of the case, not as a broad general

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

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

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

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

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

survive a qualified immunity defense, [the plaintiff]

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

21 (citation omitted).

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

instructed:

Because § 1983 “requires proof of an affirmative causal

connection between the official’s acts or omissions and

the alleged constitutional deprivation,” Zatler v.

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

curiam) (citation omitted), each defendant is entitled

to an independent qualified immunity analysis as it

relates to his or her actions and omissions. So[,] we

must be careful to evaluate a given defendant’s

qualified immunity claim, considering only the actions

and omissions in which that particular defendant

engaged.

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

15

VI. Analysis16

A. Eighth and Fourteenth Amendment Claims

Palmer asserts that Defendants Hampton, Oliver, and Bryan violated

his Eighth Amendment right when they used excessive force against him

during a May 23, 2019 cell extraction. Additionally, he states that Defendant

Biascochea violated his Eighth and Fourteenth Amendment rights when she

authorized the use of force and placed him on property restriction. Defendants

assert that they are entitled to summary judgment as to Palmer’s Eighth and

Fourteenth Amendment claims against them. In support of their position,

Defendants submitted exhibits, including incident reports, Doc. 41-1, the

Declaration of Lyndell Hampton (Hampton Decl.), Doc. 41-5; the Declaration

of Willie Oliver (Oliver Decl.), Doc. 41-6; the Declaration of Justin Bryan

(Bryan Decl.), Doc. 41-7; the Declaration of Kellie Caswell, RN, BSN (Caswell

Decl.), Doc. 41-8; Use of Force Authorizations, Doc. 41-9; Use of Force Reports,

Doc. 41-10; Property Restriction Reports, Doc. 41-11; the Declaration of Emma

Biascochea (Biascochea Decl.), Doc. 41-12; Palmer’s deposition (P. Depo),17

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

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

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

17 Palmer states there are multiple errors in the deposition transcript,

however, he only provides one example. See Doc. 56-1 at 3, Errata Sheet.

16

Doc. 41-13; Palmer’s Witness Statement, Doc. 41-14; and Palmer’s grievances,

Doc. 41-15. With the Court’s permission, see Order (Doc. 40), Defendants also

submitted two digital video discs under seal. See Exhibits Filed Under Seal

(Doc. 44); Doc. S-44, Def. Exs. 2, fixed wing recordings; 4, handheld recordings.

In an Incident Report, Lieutenant Jackson provided a chronology of the

events with details related to the application of chemical agents, the cell

extraction, and property restriction. He stated:

Inmate PALMER was disrupting the normal

operations of the building by continuously beating,

kicking[,] and banging on the cell door. At

approximately 1300 hours, due to Inmate PALMER’S

continuous refusal to cease his disruptive behavior, I

contacted Warden T.D. Anderson, who authorized the

use of OC Chemical Agents to bring Inmate PALMER

into compliance with a lawful order. Lieutenant

Robert Oliver, Mental Health Counselor Lenora

Smith, and I utilized our Crisis Intervention Training

techniques in an attempt to deescalate the situation,

to no avail. I then conducted a review of the DC4-650B

(Risk Assessment for the Use of Chemical Agents and

Electronic Immobilization Devices). It indicated that

on May 23, 2019, at the time of the pre-confinement

health appraisal, based on a review of the medical

record, Inmate PALMER had no known medical

conditions that would preclude the use of chemical

agents. To confirm that there had been no changes in

Inmate PALMER’S medical condition, I contacted

LPN Karla Kennedy and she stated that Inmate

PALMER had no medical conditions that would

preclude the use of chemical agents. A security chain

was retrieved and attached to the cell door handle of

Inmate PALMER’S cell, and also to the adjacent cell. I

instructed Officer Byron Mann to retrieve the U-

17

Dormitory handheld video camera and begin recording

at approximately 1316 hours, with myself conducting

a lead in statement. I issued Inmate PALMER a final

order and advised him that chemical agents would be

administered without further warning if he refused to

comply. At approximately 1323 hours, video recording

was concluded due to Inmate Palmer momentarily

ceasing his actions. At approximately 1335 hours,

Inmate PALMER resumed his disruptive behavior.

Video recording resumed at approximately 1340

hours, with Officer Mann acting as camera operator. I

conducted a lead in statement at that time. Upon

arrival at cell front, it was observed that Inmate

PALMER had utilized his personal property to cover

the cell’s observation window. I witnessed Officer

Michael Decubellis administer two applications of OC

chemical agents, utilizing three (3) one (1) second

burst[s] into Inmate PALMER’S cell through the

opening of the cell door, while Officer James

Cartwright utilized the shield as a precautionary

measure.[18] Due to Inmate PALMER utilizing his

state-issued mattress and bed linens in an attempt to

block the effects of chemical agents, it is unknown if

the chemical agents made contact with him. Due to

Inmate PALMER blocking the effects of chemical

agents, Warden Anderson was contacted and

authorized the use of CS chemical agents. I witnessed

Officer Decubellis administer one application of CS

chemical agents, utilizing three (3) one (1) second

burst[s] into Inmate PALMER’S cell. The cell door was

then secured. Due to Inmate PALMER utilizing his

state-issued mattress and bed linens in an attempt to

block the effects of chemical agents, it is unknown if

the chemical agents made contact with him. The

chemical agents had no effect on Inmate PALMER and

he continued to refuse all orders to submit to restraint

procedures. I contacted Warden Anderson and advised

18 See Doc. 41-1 at 1-2 (Decubellis’ Incident Report); see id. at 9 (Cartwright’s

Incident Report).

18

her of Inmate PALMER’S continuous refusal and the

ineffectiveness of chemical agents. Duty Warden

Anderson authorized the use of a forced cell extraction

to remove Inmate PALMER from his cell. I instructed

Officer Dominic Ellis to retrieve a second handheld

camera. Two cameras were used during this incident

so that one camera could remain cell front while a lead

in statement and team introduction was conducted for

the cell extraction on the second camera. There was no

lapse in recording during this incident. Video

recording on the second camera began at

approximately 1419 hours, at which time I conducted

my lead in statement. At approximately 1422 hours,

once the team assembled cell front, I conducted a

closing statement, at which time video recording on

the first handheld camera concluded. Inmate

PALMER was ordered to submit to restraint

procedures, to which he initially complied; however, he

refused to comply with proper strip search procedures.

The cell door was breached at which time the cell

extraction team entered the cell. The team members

forced Inmate PALMER to the cell floor where they

gained control of his extremities. Once all restraints

were applied, Inmate PALMER was pinned to [the]

cell floor while boxers were placed on Inmate

PALMER to prevent the recording of nudity. Inmate

PALMER was assisted to his feet and escorted to the

Quad 2 cold water shower. Inmate PALMER was

instructed not to use soaps or lotions during his

shower. Once Inmate PALMER’S decontamination

shower was complete, he received a clean shroud. At

approximately 1440 hours, Inmate PALMER made

allegations of staff abuse and PREA [(Prison Rape

Elimination Act)]. It should be noted that Inmate

PALMER did not give specific details or staff

members[’] names regarding his PREA allegation.

Inmate PALMER was then escorted to the V-

Dormitory Medical Treatment Room where he

received a post use of force physical, conducted by LPN

Kennedy with no injuries noted. Upon completion of

19

his medical assessment, Inmate PALMER was

escorted to S-Dormitory, where he was rehoused in cell

S3109S. Video recording was continuous and

uninterrupted and concluded at approximately 1455

hours. Inmate PALMER was monitored for (60)

minutes by Officer Dominic Ellis following the use of

chemical agents, with no signs of respiratory distress

noted. Cell V2210L and the shower were

decontaminated. The digital handheld camera was

downloaded to a DVD. The DVD, with a DC1-801

(Chain of Custody) attached, was placed in the Use of

Force box located in the Colonel’s Office Hallway. All

staff involved received a post use of force physical,

with no injuries noted. The following forms were

completed and included in the use of force packet:

DC4-701C (Emergency Room Record),[19] DC4-708

(Diagram of Injury),[20] DC6-216 (Chemical Agent

Accountability Log), and [a] DC6-232 (Authorization of

Use of Force).[21] This incident was noted on Inmate

PALMER’S DC6-229 (Daily Record of Special

Housing). Duty Warden Anderson was notified of the

outcome of this incident.

. . . .

Inmate PALMER is in violation of F.A.C. Chapter 33-

601.314 rules of prohibited conduct and will be

receiving a disciplinary report for disciplinary

infraction[]: (2-3) [c]reating a minor disturbance.[22]

Due [to] Inmate PALMER utilizing his personal

property to cover the cell’s observation window and

19 See Caswell Decl. at 25 (noting “[t]wo hematomas to back of the head”).

20 See Caswell Decl. at 26 (“Two hematomas to back of head. They were not

bleeding at time of assessment.”).

21 See Doc. 41-9.

22 See Doc. 41-3, Inmate Disciplinary Actions.

20

utilizing his state-issued mattress and bed linens in an

attempt to block the effects of chemical agents,

Warden Anderson authorized for Inmate Palmer to be

placed on property restriction. Under my supervision,

Inmate PALMER was placed on temporary property

restriction due to the misuse of his state-issued

mattress, linens, and personal property. Inmate

PALMER was counseled and advised of the reason for

the property restriction. Inmate PALMER is

authorized to possess a pair of state issued boxers,

along with appropriate health and comfort items and

approved footwear. At no time will Inmate PALMER

be left without a means to cover himself. Sergeant

Robert Castleberry and Officer Eric Prock inventoried

Inmate PALMER’S personal property. Officer Prock

secured Inmate PALMER’S property in the Main

Property Room, along with the DC6-220 attached. I

have reviewed the property being restricted and

confirmed that the DC6-220 (Inmate Impounded

Personal Property List) reflects the correct property

restricted and staff has signed the DC6-220. Inmate

PALMER was not present when the property was

inventoried; therefore, he was unable to sign the DC6-

220. Inmate PALMER received a copy of the DC6-220.

A Restriction Memo was completed and placed on

Inmate PALMER’S cell door. A Property Restriction

Form was completed and forwarded to the Chief of

Security.[23] This incident was forwarded to the Chief

of Security and the Assistant Warden’s Office for

further review and possible MINS entry.

Doc. 41-1 at 1-8.

23 See Doc. 41-11 at 3 (noting property restriction is not to exceed 72 hours).

21

Officer Michael Decubellis also provided a description of the

circumstances leading up to the cell extraction.24 He stated:

At approximately 1335 hours, on Thursday, May 23,

2019, while assigned as U-Dormitory Housing Officer,

I was summoned to V-Dormitory by Lieutenant Eric

Jackson for a possible organized use of chemical

agents involving Inmate PALMER, LeSamuel – DC

#L41847 (V2210L). Upon my arrival, Lieutenant

Jackson informed me that Inmate PALMER was

disrupting the normal operations of the building by

continuously beating, kicking[,] and banging on the

cell door. Upon arrival at cell front, it was observed

that Inmate PALMER had utilized his personal

property to cover the cell’s observation window. At

approximately 1342 hours, the cell door was breached

and under the direct supervision of Lieutenant

Jackson, I administered three (3) one (1) second

burst[s] of OC Chemical Agents canister #457585 into

Inmate PALMER’S cell, while Officer James

Cartwright utilized the shield as a precautionary

measure. Due to Inmate PALMER utilizing his state-

issued mattress and bed linens in an attempt to block

the effects of chemical agents, it is unknown if the

chemical agents made contact with him. At

approximately 1353 hours, under the direct

supervision of Lieutenant Jackson, I administered

three (3) one (1) second burst[s] of OC chemical agent

canister #5532747 into Inmate PALMER’S cell, as

Officer Cartwright utilized the shield as a

precautionary measure. Due to Inmate PALMER

utilizing his state-issued mattress and bed linens in an

attempt to block the effects of chemical agents, it is

unknown if the chemical agents made contact with

24 Palmer voluntarily dismissed Decubellis as a Defendant in the action. See

Voluntary Dismissal (Doc. 46). In doing so, Palmer stated that Decubellis “didn’t

participate in the unlawful use of force upon [him]” and that “Decubellis was not a

part of the cell extraction team. . . .” Id.

22

him. Due to the first two applications of chemical

agents being ineffective, Warden Tony Anderson was

contacted, and authorized the use of CS chemical

agents. Inmate Palmer continued to refuse to comply

with restraint procedures. At approximately 1404

hours, under the direct supervision of Lieutenant

Jackson, I administered three (3) one (1) second

burst[s] of CS chemical agent canister #5484598 into

Inmate PALMER’S cell, as Officer Cartwright utilized

the shield as a precautionary measure. Due to Inmate

PALMER utilizing his state-issued mattress and bed

linens in an attempt to block the effects of chemical

agents, it is unknown if the chemical agents made

contact with him. No further force was used by me. It

should be noted that I am certified in the use of

chemical agents and my chemical agents[] card expires

in September of 2019. This incident was referred to the

Shift Supervisor for further disposition.

Id. at 1-2.

In a Declaration, Defendant Biascochea describes her role during the

events that transpired on May 23, 2019. She states in pertinent part:

I have reviewed the second amended complaint

filed by inmate LeSamuel Palmer (FDC #L41847) and

I am aware of the allegations against me. These

allegations pertain to an organized use of force that

occurred on May 23, 2019. Plaintiff alleges that I

authorized [the] use of chemical agents and a cell

extraction on him. He further alleges that I housed

him in S-Dorm and denied him certain items including

clothes, bedding, soap, toothpaste, toothbrush[,] and

tissue.

I did not authorize the use of chemical

agents or the cell extraction of Plaintiff on May

23, 2019. FDC rules require the Warden or someone

designated by the Warden to authorize a use of force.

23

Uses of force that occur during normal business hours

(Monday through Friday 8:00 a.m. to 5:00 p.m.) are

typically authorized by the Warden. However, if the

Warden is not available, a person designated by the

Warden can authorize the use of force. Those

designated persons include the Assistant Warden of

Operations, the Assistant Warden of Programs, the

Colonel, the Classification Supervisor, and myself as

the Major. The Duty Warden is typically responsible

for authorizing uses of force that occur outside of

normal business hours.

The use of force occurred on Thursday,

May 23, 2019 during normal business hours and

was authorized by the Warden as reflected on

the Authorizations of Use of Force Forms.[25]

I authorized Plaintiff to be placed on

property restriction on May 23, 2019. FDC rules

permit the restriction of an inmate’s personal and/or

state issued property when they are misused. [26] Such

property restrictions are common practice.

Plaintiff was placed on property restriction

because he used his personal property to cover the

window on his cell door which prevented staff from

seeing inside his cell. This presents a security concern

and is against FDC rules. Plaintiff also utilized his

state issued property, specifically his mattress, bed

linens, and clothing to block the chemical agents. Due

to this misuse of his personal and state issued

property, Plaintiff was placed on property restriction

for a period not to exceed 72 hours.

Plaintiff was not denied a toothbrush,

toothpaste, soap[,] or tissue. While inmates on

25 See Doc. 41-9.

26 See Doc. 41-11.

24

property restriction may have items purchased from

the commissary removed, including items such as

toothpaste and soap, they are provided replacement

items during the course of the restriction.

Plaintiff alleges that I made the decision to

house Plaintiff in S-Dorm. I did not make this

decision. At the time of this use of force, S-Dorm

housed Close Management inmates. The Warden

decided who was housed in S-Dorm.

Biascochea Decl. at 1-2 (emphasis added and paragraph enumeration omitted).

Next, Defendants Hampton, Oliver, and Bryan explain their roles as

members of the cell extraction team. In a Declaration, Hampton states in

pertinent part:

I have reviewed the second amended complaint

filed by inmate LeSamuel Palmer (FDC #L41847) and

I am aware of the allegations against me. These

allegations pertain to an organized use of force that

occurred on May 23, 2019 where I was part of the cell

extraction team.

Specifically, Plaintiff alleges that prior to the

cell extraction, I conducted strip procedures on

Plaintiff. He alleges that he complied with the strip

procedure. Plaintiff further alleges that during the cell

extraction, I punched and kicked him and used

handcuffs as “brass knockers” to hit him in the back of

his head. He also alleges that I pulled and twisted his

genitals to cause pain.

Plaintiff’s claims are absolutely not true.

Plaintiff failed to comply with the strip

procedure. At no time did I punch, kick, or

otherwise “beat” Plaintiff. At no time did I grab,

pull[,] or twist Plaintiff’s genitals.

25

On May 23, 2019, I was working confinement in

another dorm when I was summoned to V-Dormitory

for a possible cell extraction of Plaintiff. When I

arrived at the dorm, I assembled with the other cell

extraction team members. There were five (5)

members of the cell extraction team. Each team

member was assigned a number and had assigned

responsibilities upon entry of the cell. I was team

member #2 and was responsible for the upper

right quadrant of Plaintiff’s body and applying

hand restraints.

Pursuant to FDC procedure, the members of the

cell extraction team were placed on hand-held video.

Lt. Jackson provided a lead in statement which

included the date and time of the recording, the

location of the recording, and a brief description of the

events that occurred prior to assembly of the cell

extraction team. The team members, who were lined

up in numerical order, stated their name, their

assigned number[,] and their assigned responsibilities

during the cell extraction. Lt. Jackson then provided

standard instructions to the cell extraction team

members and the camera operator.

I, along with the other members of the cell

extraction team, went to Plaintiff’s cell which was

located on the second floor of the dormitory. The team

members walked to the cell in numerical order with

the #1 team member at the front of the line.

Once the team arrived at Plaintiff’s cell, he was

given an order to submit to restraint procedures by Lt.

Jackson. As the #2 member of the team[,] I was

able to see inside Plaintiff’s cell. Plaintiff

initially complied with the procedures by

removing all his clothing. However, he refused

to comply with strip procedures. I instructed

Plaintiff to back up, turn around and bend at the

26

waist and cough. Plaintiff failed to bend at the

waist. I again instructed Plaintiff to bend at the

waist. He again[] failed to bend at the waist. I

then notified Lt. Jackson that Plaintiff was not

bending at the waist. Lt. Jackson came to the

cell window and instructed Plaintiff to squat

and cough. Plaintiff failed to comply. Due to

Plaintiff’s failure to comply, his cell door was

breached.

I entered the cell after the #1 team member. The

#1 team member used a shield to get Plaintiff on the

ground. After Plaintiff was on the ground, I grasped

Plaintiff’s right arm and forced it behind his back.

When the #3 team member secured Plaintiff’s

left arm, I applied the handcuffs. Plaintiff was

resisting efforts to be restrained in the

handcuffs. Once all restraints were applied, I

pinned Plaintiff’s upper torso to the ground

while boxers were obtained for Plaintiff.

Hampton Decl. at 1-3 (emphasis added and paragraph enumeration omitted).

Defendants Oliver and Bryan provide similar accounts. In a Declaration,

Oliver states in pertinent part:

Plaintiff’s claims are absolutely not true.

At no time did I punch, kick, or otherwise “beat”

Plaintiff.

. . . .

I was team member #5 and was responsible for

the lower left quadrant of [Palmer]’s body.

. . . .

I was unable to see inside Plaintiff’s cell during the

strip search procedure. However, it was indicated by

27

another team member and Lt. Jackson that Plaintiff

was not complying. I have no reason to believe that

Plaintiff was complying with strip procedures.

Due to Plaintiff’s failure to comply, his cell door

was breached. I was the last team member to enter the

cell. After Plaintiff was on the ground, I grasped

Plaintiff’s left leg and pinned it to the cell floor. After

Officer Bryan pinned Plaintiff’s right leg, I pinned

both of Plaintiff’s leg[s] to enable Officer Bryan

to release his grasp and apply leg restraints.

Plaintiff was resisting efforts to be placed in

restraints. Once the restraints were applied, I

released my grasp and did not use any further

force.

Oliver Decl. at 1-2 (emphasis added and paragraph enumeration omitted).

Additionally, Bryan similarly avers that he never punched, kicked, or

otherwise beat Palmer. See Bryan Decl. at 1. Like Oliver, Bryan was unable to

see inside Palmer’s cell during the strip search procedure due to his fourth

position in line waiting for a directive to enter the cell. See id. at 2. He states

in pertinent part:

I entered the cell after team members 1-3. After

Plaintiff was on the ground, I grasped Plaintiff’s right

leg and pinned it to the cell floor until Sergeant Oliver

was able to gain control of both Plaintiff’s legs. At that

time, I applied leg restraints. Plaintiff was resisting

efforts to be placed in restraints. Once the restraints

were applied, I released my grasp and did not use any

further force.

Id. (paragraph enumeration omitted).

28

To defeat the Motion, Palmer is required to present evidence to show

that there is a genuine issue for trial. In opposing Defendants’ Motion, Palmer

asserts that Defendants are not entitled to summary judgment. He submitted

the Declarations of S-dormitory inmates, see Docs. 53-2 at 2-3, and V-

dormitory inmates, see id. at 4, 7, as well as his own Declaration, see id. at 5-

6 (Palmer Decl.), in support of his contentions. In his Response, Palmer

describes the beating as “assaulting the plaintiff with close[d] hands (fist), knee

jabbing” and “using the handcuffs as brass knockers.” Response at 4. He also

provides details related to his attempt to comply with orders before Defendants

removed him from his cell, and asserts that “just because [he] didn’t fully follow

[the] order” due to mental issues, Defendants still used excessive force. Id. at

15. In a Declaration, Palmer provides a factual account that is similar to the

allegations in his SAC. He states in pertinent part:

Lt. Jackson came back to the cell and order[ed]

for the handheld camera to be changed out. And asked

me was I[] going to submit to handcuff[s] and I stated,

“yes.” I handed my clothes (that … remained on –

boxers and t-shirt) to Officer Hampton [a]nd was going

through the procedure of strip searching. While

standing naked I did the search procedure. And Officer

Hampton stated I didn’t do it right[,] so Lt. Jackson

came to the door and told me to repeat the procedure.

When I did as told[,] Lt. Jackson order[ed] the cell

extraction team to “line it up” and order[ed] the

team to run into the cell….

29

The cell extraction team ran in and started

punching on me [and] la[i]d on top of me. Officer

Hampton started beating me on the back of the

head with handcuffs. H[e] and other officers

start[ed] sexually rubbing the[m]sel[ves]

against me. Officer Hampton grabbed my

manhood, etc. while other officer[s] continue[d]

to beat on me. They kept up the action until Lt.

Jackson called off the assault “ya[’]ll back off.” The

handheld video will hear Lt. Jackson stating that I had

on “no” clothes [a]nd order[ed] another officer to bring

me some boxers (undershorts).

Palmer Decl. at 5-6 (emphasis added and selected punctuation deleted). At his

deposition, Palmer similarly maintained that the cell extraction was

unnecessary because he had complied with Lieutenant Jackson’s and

Hampton’s directives, and that Hampton, Oliver, and Bryan used excessive

force. See P. Depo at 20-21, 42-56, 71-72.

The parties agree that the video evidence generally captures the May 23,

2019 use of chemical agents, the cell extraction, the post-use-of-force

decontamination shower, Nurse Kennedy’s medical assessment, and the escort

to S dormitory.27 However, they disagree as to what the recording shows inside

27 Defendants’ exhibit 2 contains seven video recordings with various views

from fixed wing (FW) cameras. The FW footage provides a general chronology of the

May 23, 2019 events: first chemical agent application (1:42 p.m.), second chemical

agent application (1:53 p.m.), third chemical agent application (2:04 p.m.); 2:25 p.m.

cell extraction; 2:31 p.m. decontamination shower; 2:40 p.m. medical assessment; 2:43

p.m. escort to S dormitory; 2:55 p.m. arrival at S dormitory cell. Defendants’ exhibit

4 contains three video recordings from a handheld (HH) camera: HH1 (Lieutenant

Jackson’s final order); HH2 (use of chemical agents); and HH3 (cell extraction).

30

the cell where Hampton, Oliver, and Bryan worked together to restrain Palmer

during the cell extraction. The parties generally cite to the handheld video

footage and argue that the video evidence supports their factual accounts as to

how the cell extraction unfolded. See Motion at 2-5; Response at 2-4.

The video evidence shows that Lieutenant Jackson gave Palmer a final

order to cease his disruptive behavior, and Palmer seemed compliant. See Def.

Ex. HH1. The video evidence also reflects that Palmer had covered the entire

window of his cell door with paper which prevented staff from seeing inside

Palmer’s cell. See Def. Ex. HH2. At his deposition, Palmer acknowledged that

he had violated prison policy when he covered his cell window with paper to

thwart the officers’ efforts and block the chemical agents. See P. Depo at 30-

31. After the first application of chemical agents, Palmer continued his

disruptive behavior by loudly chanting. See Def. Ex. HH2. After the second

application, he continued chanting and yelling “Zulu Warrior.” Id. After the

third application, Palmer continued to chant about the Zulu nation. See id.

Other inmates joined Palmer’s lead and yelled, “Zulu, Zulu, Zulu.” Id. At his

deposition, Palmer acknowledged that he yelled to other inmates about the

Zulu nation. See P. Depo at 32-35. The FDOC issued a disciplinary report to

Palmer for participating in a disturbance. See Docs. 41-1 at 6-7; 41-3.

31

The Court first addresses Defendant Biascochea’s involvement in the

incident. To the extent Palmer intends to hold Biascochea liable based on her

position as a “Major” within the Florida Department of Corrections (FDOC),

see Response at 12 (citing Doc. 53-1 at 4), the law is well-settled that

supervisory officials are not liable under § 1983 for the unconstitutional acts

of their subordinates on the basis of respondeat superior or vicarious liability.

Next, as to Palmer’s assertion that Biascochea authorized the chemical

spraying and cell extraction, it is undisputed that FDOC Rule 33-

602.210(5)(c)1. provides that “[t]he warden or designee shall be consulted and

his or her written Authorization for Use of Force, Form DC6-232, must be

obtained for any organized use of force prior to the application of chemical

agents.” Fla. Admin. Code r. 33-602.210(5)(c)1. Thus, Biascochea did not have

the power to authorize the use of force. See Biascochea Decl. at 2, ¶¶ 3-4; see

also Doc. 41-9. Rather, Warden Anderson authorized the force used on May 23,

2019, as reflected in the Authorizations for Use of Force forms. See Doc. 41-9

(two applications of OC chemical agents; third application of CS chemical

agents; and cell extraction). In an incident report, Lieutenant Jackson

acknowledged that Warden Anderson had authorized the use of force. See Doc.

41-1; see also Def. Ex. HH1. On this record, no reasonable jury could conclude

that Biascochea authorized the use of chemical agents on Palmer and the cell

32

extraction. As such, Defendants’ Motion is due to be granted as to Palmer’s

Eighth Amendment claim (that Biascochea authorized the chemical spraying

and cell extraction) against Defendant Biascochea.

The parties agree that Palmer violated the FDOC rules when he covered

his cell window and caused a cellblock disturbance. See Biascochea Decl.; P.

Depo at 30. In a Declaration, Biascochea states that she authorized Palmer’s

placement on 72-hour property restriction because Palmer had used his

personal property to cover the window on his cell door which prevented staff

from seeing inside his cell, thus causing a security risk. See Biascochea Decl.

at 2. She explains that the FDOC rules “permit the restriction of an inmate’s

personal and/or state issued property when they are misused” and that “[s]uch

property restrictions are common practice.” Id. Notably, Palmer was counseled

and advised of the reason for the property restriction, and knew that it would

be temporary. See Doc. 41-11 at 1.

To state a claim that his conditions of confinement violated the Eighth

Amendment, a prisoner must allege that the defendant was deliberately

indifferent to conditions that were “sufficiently serious.” Chandler, 379 F.3d at

1288. Conditions of confinement are sufficiently serious under the Eighth

Amendment only if they are so extreme that they expose the prisoner to “an

unreasonable risk of serious damage to his future health or safety.” Id. at 1289.

33

Allegations of merely harsh conditions do not state a claim under the Eighth

Amendment. Id. Palmer’s assertions related to the 72-hour property restriction

fail to suggest that Biascochea deprived him of the “minimal civilized measure

of life’s necessities” or that the conditions of his confinement posed an

unreasonable risk of serious harm to his future health or safety. Id.; see also

Turner v. Warden, GDCP, 650 F. App’x 695, 701-02 (11th Cir. 2016); O’Connor

v. Kelley, 644 F. App’x 928, 932 (11th Cir. 2016). The property restriction and

any deprivation of hygiene items were short-lived, and Palmer’s health did not

significantly deteriorate as a result of the property restriction. See Doc. 41-11.

The Court finds that the 72-hour property restriction that Palmer endured in

S dormitory, as described by Palmer, is not the sort of extreme condition that

violates contemporary standards of decency. Nor has Palmer asserted that

Biascochea had subjective knowledge of any risk of serious harm to Palmer. As

such, Defendants’ Motion is due to be granted as to Palmer’s Eighth

Amendment claims (related to the property restriction in S dormitory) against

Defendant Biascochea.

Additionally, Palmer asserts that Biascochea failed to report Palmer’s

PREA complaint against Hampton. According to Palmer, he told “everyone”

(including the nurse, the site counselor, the mental health counselor, and the

disciplinary hearing officers) about Hampton’s abuse towards him during the

34

cell extraction. P. Depo at 56. He testified that he told Biascochea that he had

a “criminal complaint,” but did not tell her anything else because she did not

like him and would not talk to him. Id. at 56-57. Notably, Warden Anderson

also knew about Palmer’s PREA complaint and acknowledged Palmer’s

assertions in an incident report. See Doc. 41-1 at 1. Given the record, including

that the administration was well aware of Palmer’s PREA complaint against

Hampton, Palmer’s contentions regarding Biascochea’s alleged failure to

report his generalized complaint fails to support any conclusion that she

violated a constitutional right. As such, Defendants’ Motion is due to be

granted as to Palmer’s Eighth Amendment claim against Biascochea.

Finally, Palmer asserts that Biascochea violated his Fourteenth

Amendment right to equal protection of the law. He maintains that while he

was in S dormitory, he was treated differently from other CM inmates who

were housed in U and V dormitories. He believes that CM inmates should not

have been housed in S dormitory. See SAC at 6. According to Biascochea, she

did not authorize Palmer’s assignment to S dormitory. See Biascochea Decl. at

2. Rather, the Warden assigned inmates to S dormitory, which housed CM

inmates at that time. See id. To establish a claim cognizable under the Equal

Protection Clause, an inmate must show that “(1) he is similarly situated to

other prisoners who received more favorable treatment[,] and (2) the state

35

engaged in invidious discrimination against him based on race, religion,

national origin, or some other constitutionally protected basis.” Sweet v. Sec’y,

Dep’t. of Corr., 467 F.3d 1311, 1318-19 (11th Cir. 2006) (citing Jones v. Ray,

279 F.3d 944, 946-47 (11th Cir. 2001); Damiano v. Fla. Parole and Prob.

Comm’n, 785 F.2d 929, 932-33 (11th Cir. 1986)). Taking Palmer’s assertions as

true, as the Court must, he provides no facts that Biascochea discriminated

against him on some constitutionally protected basis. As such, Defendants’

Motion is due to be granted as to Palmer’s Fourteenth Amendment equal

protection claim against Defendant Biascochea.

Next, the Court turns to Defendants Hampton, Oliver, and Bryan’s

involvement in the use of force against Palmer during the cell extraction.

Defendants assert that they are entitled to summary judgment as to Palmer’s

Eighth Amendment claims against them because they did not use any

unnecessary force against Palmer as they restrained him inside the cell. They

maintain that the video evidence supports their version of the facts that they

neither kicked nor punched him, but used only force necessary to restrain

Palmer. See Motion at 14-15. They argue that “[t]he video recording is in stark

contradiction to the type of violent encounter depicted by [Palmer].” Id. at 15.

Palmer contends that Hampton, Oliver, and Bryan are not entitled to summary

36

judgment in their favor, and that the video evidence supports his version of the

facts.

The handheld video footage captures the cell extraction team entering

Palmer’s cell and then exiting the cell less than five minutes later. See Def.

Exs. HH3; FX1 (2:25 p.m. to 2:29 p.m.). However, the Court is neither able to

see each Defendant’s specific actions during the restraint process nor Palmer’s

compliance, or lack thereof. See HH3 at 5:27-6:40. The camera operator pointed

the camera towards the ceiling (presumably because Palmer was nude),28 and

therefore, the Court is unable to see the particular movements of the involved

parties inside the cell where Defendants worked together to restrain Palmer.

Additionally, Lieutenant Jackson oversaw Hampton, Oliver, and Bryan’s

actions, and Jackson’s physical frame obstructed the camera’s view of each

Defendant’s movements. Also, the camera operator (along with others) coughed

(presumably due to chemical agents lingering in the air), and therefore, the

Court is unable to hear some of the conversations among Jackson, Defendants,

and Palmer. Undoubtedly, there was a rapidly evolving physical confrontation

in the cell, as Defendants secured Palmer in restraints and put boxer shorts on

28 See Doc. 41-1 at 4 (“Once all restraints were applied, Inmate Palmer was

pinned to [the] cell floor while boxers were placed on [him] to prevent the recording

of nudity.”) (capitalization omitted).

37

him. Defendants maintain, see Motion at 17, and this Court agrees, that the

extraction team fully restrained Palmer’s hands and legs in approximately one

minute, placed boxer shorts on him, and left the cell with Palmer for an escort

to a decontamination shower where Palmer arrived at 2:31 p.m. Nevertheless,

the video footage does not capture the individual movements of each Defendant

while inside the cell.29

While the video evidence provides a detailed chronology of how the

events generally unfolded, it fails to capture Defendants’ extraction efforts and

their specific interactions with Palmer inside the cell. Given the differences in

Palmer’s sworn recollection30 and the contemporaneous narratives provided in

incident reports coupled with Caswell’s and Defendants’ Declarations, there

remain genuine issues of material fact as to the extent to which Palmer failed

to comply with orders, whether Defendants Hampton, Oliver, and Bryan

appropriately used force to restrain Palmer and extract him from the cell, and

29 Defendants rely on their Declarations when they describe what happened

while they were inside Palmer’s cell as they worked together to apply Palmer’s

restraints. See Motion at 5. Defendants also cite to the video footage at time stamps

5:26 through 6:31, see id. at 5, 15, 17, however, that portion of the recording is

inconclusive because it does not capture Defendants’ specific actions. See Def. Ex.

HH3.

30 See P. Decl.; see also generally P. Depo.

38

whether the force used was excessive, causing Palmer’s lasting injuries.31 As

such, Defendants’ Motion as to Palmer’s Eighth Amendment claims related to

the cell extraction against Defendants Hampton, Oliver, and Bryan is due to

be denied.

B. Qualified Immunity

Defendants assert that they are entitled to qualified immunity because

they did not commit any federal statutory or constitutional violation. See

Motion at 19-20. Under the doctrine of qualified immunity, a defendant may

be protected from claims for monetary damages against him in his individual

capacity. Here, it is undisputed that Defendants were engaged in discretionary

functions during the events at issue. Thus, to defeat qualified immunity with

respect to each Defendant, Palmer must show both that the specific Defendant

committed a constitutional violation, and that the constitutional right violated

was clearly established at the time. Indeed, the Eleventh Circuit has instructed

that, in determining the applicability of qualified immunity, the Court must

“parse” the actions each Defendant undertook, and “address the evidence as it

pertains solely to” that defendant. Alcocer, 906 F.3d at 952.

31 The video evidence shows that Nurse Kennedy examined the back of

Palmer’s head in the V dormitory medical treatment room, and Palmer pointed to the

back of his head when the camera operator recorded him in the S dormitory cell. See

Def. Ex. HH3. Notably, Palmer did not appear to be suffering any physical hardship

when officers escorted him on a nine-minute walk from V dormitory to S dormitory.

See Def. Exs. FW5-FW7.

39

Upon review of the record and the parties’ arguments, the Court finds

that Defendant Biascochea is entitled to qualified immunity from monetary

damages in her individual capacity as to Palmer’s Eighth and Fourteenth

Amendment claims against her. However, at this summary judgment stage of

the proceedings, genuine issues of material fact preclude a finding that

Defendants Hampton, Oliver, and Bryan are entitled to the benefit of qualified

immunity as to Palmer’s Eighth Amendment claims against them. As such,

Defendants’ Motion as to their assertion of qualified immunity is due to be

granted in part and denied in part.

C. Physical Injury

Next, the Court turns to Defendants’ assertions that Palmer is not

entitled to compensatory and punitive damages under 42 U.S.C. § 1997e(e)

because he has not alleged any physical injuries that are more than de

minimis, resulting from Defendants’ acts and/or omissions. At issue is 42

U.S.C. § 1997e(e), which reads:

No Federal civil action may be brought by a prisoner

confined in a jail, prison, or other correctional facility,

for mental or emotional injury suffered while in

custody without a prior showing of physical injury or

the commission of a sexual act....

42 U.S.C. § 1977e(e). To satisfy § 1997e(e), a prisoner must assert physical

injury that is more than de minimis. However, the injury does not need to be

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significant. See Thompson v. Sec’y, Fla. Dep’t of Corr., 551 F. App'x 555, 557

(11th Cir. 2014) (citation omitted). Until recently, the Eleventh Circuit read

this statute to mean that “an incarcerated plaintiff cannot recover either

compensatory or punitive damages for constitutional violations unless he can

demonstrate a (more than de minimis) physical injury.” Brooks v. Warden, 800

F.3d 1295, 1307-08 (11th Cir. 2015). However, in Hoever v. Marks, 993 F.3d

1353 (11th Cir. 2021), the Eleventh Circuit reexamined § 1997e(e)’s physical

injury requirement and precisely defined its limitation on the damages a

prisoner can recover for constitutional violations. The court held and

instructed “the district court to dismiss only a request for compensation for an

alleged mental or emotional injury in the absence of an alleged physical

injury.” Id. at 1361. It reasoned that “a plaintiff – at least one alleging a

constitutional violation – need not allege a compensable injury to seek punitive

damages, so long as he plausibly alleges that the underlying misconduct was

willful or malicious.” Id.

Taking Palmer’s allegations as to his injuries as true, he asserts physical

injuries that are greater than de minimis. Palmer asserts that the back of his

head was bleeding from the blows, see SAC at 5, however, Nurse Kennedy

noted there were two hematomas that were not bleeding, see Doc. 41-8 at 26.

As relief, Palmer asks that the Court direct the FDOC to “medically remove[]”

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the knot on his head. Id. Additionally, Palmer asserts that Defendant Hampton

grabbed and twisted Palmer’s genitals. See SAC at 6. According to Palmer, he

suffered pain while urinating for “close to a month” as a result of the genital

injury. See P. Depo at 60.

The Court finds that Palmer’s alleged injuries cross §1997e(e)’s de

minimis threshold. See Thompson, 551 F. App’x at 557 n.3 (describing an

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

visit a doctor or emergency room) (citing Luong v. Hatt, 979 F. Supp. 481, 486

(N.D. Tex. 1997)). Thus, Defendants’ Motion is due to be denied to the extent

that the Court finds Palmer’s request for monetary damages is not precluded

under § 1997e(e) because he alleges that he suffered physical injuries that are

plausibly greater than de minimis.

D. Plaintiff’s Newly-Asserted Claims

In his Response (Doc. 53), Palmer asserts that Defendant Hampton

threatened him, tried to force him “to drop the case,” told inmates that Palmer

was a “baby raper,” tried to coax inmates to assault Palmer, and denied Palmer

recreational activity. Response at 19-20. In support of his assertions, Palmer

submitted the Declaration of Terry Newkirk, Jr. (FDOC # A51876) who

described what he witnessed while confined with Palmer in V dormitory in

2020. See Doc. 53-2 at 8. Insofar as Palmer asserts a First Amendment

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retaliation claim and other claims (based on events that allegedly occurred in

2020) against Defendant Hampton in his response to Defendants’ summary

judgment motion, the Court determines that raising new legal claims against

Defendant Hampton for the first time at this stage of the litigation is

impermissible. See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315

(11th Cir. 2004) (“The central issue in this case is whether a non-moving party

plaintiff may raise a new legal claim for the first time in response to the

opposing party’s summary judgment motion. We hold it cannot.”). Thus, the

Court determines that Palmer is not permitted to pursue his new claims

against Defendant Hampton in this case.

In consideration of the foregoing, it is now

ORDERED:

1. Defendants’ Motion for Summary Judgment (Doc. 41) is

GRANTED as to (1) Plaintiff’s Eighth and Fourteenth Amendment claims

against Defendant Biascochea, and (2) Defendant Biascochea’s assertion of

qualified immunity as to Palmer’s Eighth and Fourteenth Amendment claims

against her. Otherwise, the Motion is DENIED. Judgment in Biascochea’s

favor will be withheld pending adjudication of the action as a whole. See Fed.

R. Civ. P. 54.

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

possibility of settlement as to Palmer’s remaining Eighth Amendment claims

for excessive use of force against Defendants Hampton, Oliver, and Bryan. No

later than October 20, 2021, the parties must notify the Court whether they

are able to reach a settlement. If the parties are unable to settle the case

privately among themselves, they must notify the Court if they wish to have

the case referred to a United States Magistrate Judge for a settlement

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

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

DONE AND ORDERED at Jacksonville, Florida, this 8th day of

September, 2021.

MARCIA MORALES HOWARD

United States District Judge

Jax-1 9/7

C:

LeSamuel Palmer, #L41847

Counsel of Record

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