Brown v. Wood

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

GREGORY BROWN,

Plaintiff,

v. Case No. 3:20-cv-87-HLA-MCR

CAPTAIN WOODS,1 et al.,

Defendants.

ORDER

I. Status

Plaintiff, an inmate in the custody of the Florida Department of

Corrections (FDOC), initiated this action by filing a pro se Civil Rights

Complaint (Doc. 1) under 42 U.S.C § 1983. Plaintiff is proceeding on an

Amended Complaint (AC; Doc. 5). Plaintiff names these individuals as

Defendants: Captain Woods; Lieutenant T. Tomlin; Sergeant Watson;

Sergeant Williams; and Sergeant Bayron.2 See AC at 2-4. He sues each

1 The Clerk is directed to correct the caption of the docket to reflect “Captain

Woods” and Sgt. “Williams” as the correct spelling of these Defendants’ names.

2 The Court dismissed without prejudice Defendants “Officer John Doe #1” and

“Officer John Doe #2.” See Doc. 27.

Defendant in their individual capacities. Id. Plaintiff alleges that while

he was housed at Florida State Prison (FSP), Defendants violated his

Eighth Amendment right to be free from cruel and unusual punishment

when they used and/or ordered the use of chemical agents and excessive

physical force during a cell extraction and failed to intervene in the uses

of force. See generally AC. As relief, Plaintiff seeks declaratory relief, as

well as compensatory, punitive, and nominal damages. Id. at 7.

Defendants filed Answers to the Amended Complaint. See Docs. 24-25.

Before the Court is Defendants’ Motion for Summary Judgment

(Motion; Doc. 38) with exhibits (Mot. Exs. A-Q; Docs. 38-1 through 38-

17). The Court advised Plaintiff of the provisions of Federal Rule of Civil

Procedure 56, notified him that the granting of a motion for summary

judgment would represent a final adjudication of this case which may

foreclose subsequent litigation on the matter, and allowed him to respond

to the Motion. See Order of Special Appointment (Doc. 8). Plaintiff, with

help from retained counsel, filed an Amended Response in opposition to

the Motion (Response; Doc. 50) with exhibits (Resp. Exs. 1-2; Doc. 50-1

and Doc. S-47). The Motion is ripe for review.

II. Plaintiff’s Allegations

Plaintiff’s claims against Defendants arise from a June 22, 2019,

incident at FSP, during which chemical agents and physical force were

used on Plaintiff. According to Plaintiff, at the time of the uses of force,

Plaintiff was housed in a single-person cell containing a toilet that only

the guards could flush. Resp. Ex. 1 at 1. Because the toilet was full of

feces and urine, Plaintiff requested help from the guards by placing a

piece of paper in his cell window that read “FLUSH,” but officers refused

to assist Plaintiff all day, resulting in his cell “stifling with the smell of

human waste.” Id.

According to Plaintiff, Defendant Tomlin approached Plaintiff’s cell

and advised Plaintiff that the “higherups” decided Plaintiff “should have

a rough cell extraction run on him and there was no way out.” Response

at 2. Tomlin allegedly stated, “I’[ll] tell the cell extraction members to

beat you to sleep if you make me do paperwork and gas you.” AC at 9;

Response Ex. at 1. Tomlin then advised Plaintiff “he would go easier on

[Plaintiff] if [Plaintiff] would make some noise for the camera.” Response

Ex. 1 at 1. Plaintiff asserts that Tomlin walked away, but returned to

Plaintiff’s cell around 9:30 p.m., so Plaintiff “started tapping on the

window for the camera.” Id. According to Plaintiff, Tomlin then stated to

the camera that Plaintiff was causing a disturbance and asked Plaintiff

to stop tapping on the window. Id. Plaintiff “admit[s] [he] did not stop

tapping when told to do so because that is what we had agreed to.” Id.

Plaintiff alleges that Tomlin then ordered Plaintiff to submit to

hand restraints, so he could be placed on seventy-two-hour property

restriction. AC at 9. Plaintiff admits he refused to submit to the

restraints, so Defendant Woods, upon Tomlin’s order, administered three

one-second bursts of chemical agents into Plaintiff’s cell. Id. According to

Plaintiff, this first use of chemical agents “was justified due to [Plaintiff]

being disorderly or disobeying an order . . . .” Id. Plaintiff alleges that

Tomlin and Woods then walked away, but soon came back to Plaintiff’s

cell on two more occasions and administered, without notice, two more

rounds of chemical agents when Plaintiff “was not yelling, banging,

kicking, disobeying an order or otherwise creating a disturbance.” Id. at

10.

According to Plaintiff, after the third use of chemical agents, Tomlin

summoned the Cell Extraction Team, comprised of Defendants Watson,

Williams, Bayron, and two John Does. Id. at 10. Plaintiff asserts that

Nurse Marshall asked Plaintiff if he could “cuff up” for a decontamination

shower, to which Plaintiff alleges he “replied (yes).” Id. According to

Plaintiff, Tomlin, with the Cell Extraction Team in tow, ordered Plaintiff

to submit to hand restraints and Plaintiff agreed to do so. Id. at 10. But

Plaintiff contends that Tomlin ordered Plaintiff’s cell door opened, and

once the door was opened Plaintiff “managed to come out of the cell into

the hallway area.” Id. at 10-11.

Plaintiff asserts that the Cell Extraction Team members

“immediately slammed [Plaintiff] on the ground and command[ed] [him

to] ‘stop resisting’ even though [Plaintiff] was not resisting at all.” Id. at

11. He maintains the extraction members “started punching [him] in the

face[,] head[,] and other parts of his body while [] Tomlin and [] Woods

stood by watching and did not intervene when they had an opportunity

to do so.” Id. Plaintiff alleges that during the beating, “one of the cell

extraction members inserted two fingers into [Plaintiff’s] rectum which

made [Plaintiff] scream out in pain . . . .” Id. at 11. He contends that one

of the team members placed leg shackles on him and dragged him back

into his cell where they punched him in the face, ribs, stomach, back, and

other parts of his body. Id. at 11-12. Plaintiff asserts that one of the team

members slammed Plaintiff’s forehead into the concrete floor. Id. at 12.

Plaintiff contends that he was eventually knocked unconscious. Id.

at 12. When Plaintiff regained consciousness, he was covered in blood

and transported to medical where he could shower and change his

clothing. Id. at 12-13. Nurse Marshall conducted a post use of force

physical, documenting lacerations below Plaintiff’s left eyebrow, upper

lip, and left side, as well as abrasions on his right and left cheek. On July

2, 2019, Defendant Watson advised Plaintiff that Tomlin told the Cell

Extraction Team to physically beat Plaintiff “and that’s why [he] got beat

like [he] did.” Id. According to Plaintiff, he continues to suffer severe

emotional distress, panic attacks, and terrifying “flashbacks” and

nightmares. AC at 13.

Based on these allegations, Plaintiff raises these claims: (1)

Defendants Tomlin and Woods violated his Eighth Amendment rights by

ordering and administering, respectively, the second and third

administrations of chemical agents; (2) Defendants Watson, Williams,

and Bayron violated Plaintiff’s Eighth Amendment rights by using

excessive force during the cell extraction; and (3) Defendants Tomlin and

Woods failed to intervene and stop the unnecessary use of physical force

during the cell extraction.

III. Parties’ Positions

a. Defendants’ Position

Defendants argue that Tomlin was allowed to direct Woods to

administer chemical agents and then order Watson, Bayron, and

Williams to use the minimum amount of force necessary to restrain

Plaintiff. Motion at 9. They also contend Woods, Watson, Bayron, and

Williams are not liable for excessive use of force because the force used

was reasonable and necessary under the circumstances. Id. They contend

that the use of force was required by Plaintiff’s continued disruptive

behavior and refusal to obey orders. And that once Plaintiff was

restrained, all use of force ceased. Id. They suggest that the incident was

no more than a de minimis use of force and that the force was applied in

a good-faith effort to maintain and restore discipline. Id. Next, they

assert that Tomlin and Woods are not liable for any alleged failure to

intervene as the force used was “totally reactionary to Plaintiff’s

unjustified force by himself, and failure to obey lawful commands . . . .”

Id. at 13.

In support of their position, Defendants submitted exhibits,

including the Declaration of Teddy Tomlin (Mot. Ex. A); the Declaration

of Brandon Woods (Mot. Ex. B); the Declaration of Tyler Watson (Mot.

Ex. C); the Declaration of Alberto Bayron (Mot. Ex. D); the Declaration

of Allan Williams (Mot. Ex. E); Reports of Force Used (Mot. Exs. F-H);

Use of Force Incident Reports (Mot. Exs. I-P); and Post-Use-of-Force

Exam (Mot. Ex. Q).

b. Plaintiff’s Position

Plaintiff asserts that Defendants are not entitled to summary

judgment because “Plaintiff’s version of events and that of Defendants

differ radically.” Response at 10. Plaintiff denies making any sort of

disturbance after Defendants’ first application of chemical agents, and

thus the second and third use of chemical agents were excessive. Id. at 3.

Further, when the extraction team opened his cell door, Plaintiff

contends leg irons were applied almost immediately and he never locked

his arms underneath his body. Id. Plaintiff argues that the video evidence

fails to provide an unobstructed view of the events and thus does not

contradict his version. Id. And taking his version as true, the force cannot

be dismissed as de minimis were he suffered broken teeth, permanent

vision damage, and severe face and body lacerations. Id. Finally, Plaintiff

argues that Defendants’ argument that Tomlin and Woods are not liable

for failing to intervene impermissibly asks the Court to weigh the

evidence. Id. at 12. In support of his position, Plaintiff provides his

Declaration (Resp. Ex. 1) and, with the Court’s permission, submitted

under seal a digital video recording of the incident (Resp. Ex. 2; Doc. S-

47).

III. Summary Judgment Standard

“‘Summary judgment is appropriate where there is no genuine issue

as to any material fact and the moving party is entitled to judgment as a

matter of law.’” Hinkle v. Midland Credit Mgmt., Inc., 827 F.3d 1295,

1300 (11th Cir. 2016) (quoting Jurich v. Compass Marine, Inc., 764 F.3d

1302, 1304 (11th Cir. 2014)); see Fed. R. Civ. P. 56(a). “A genuine issue

of material fact exists when the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Bowen v. Manheim

Remarketing, Inc., 882 F.3d 1358, 1362 (11th Cir. 2018) (quotations and

citation omitted); see Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1311

(11th Cir. 2018) (“Where the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party, there is no genuine

issue for trial.” (quotations and citation omitted)). In considering a

summary judgment motion, the Court views “the evidence and all

reasonable inferences drawn from it in the light most favorable to the

nonmoving party.” Hornsby-Culpepper, 906 F.3d at 1311 (quotations and

citation omitted).

“[W]hen the moving party has carried its burden under Rule 56(c),

its opponent must do more than simply show that there is some

metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (footnote and citation

omitted); see Winborn v. Supreme Beverage Co. Inc., 572 F. App’x 672,

674 (11th Cir. 2014) (per curiam) (“If the movant satisfies the burden of

production showing that there is no genuine issue of fact, ‘the nonmoving

party must present evidence beyond the pleadings showing that a

reasonable jury could find in its favor.’” (quoting Shiver v. Chertoff, 549

F.3d 1342, 1343 (11th Cir. 2008)). “A ‘mere scintilla’ of evidence

supporting the opposing party’s position will not suffice; there must be

enough of a showing that the jury could reasonably find for that party.”

Loren v. Sasser, 309 F.3d 1296, 1302 (11th Cir. 2002) (quoting Walker v.

Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (internal quotations

omitted)).

IV. Eighth Amendment

“The Eighth Amendment prohibits the infliction of cruel and

unusual punishment. U.S. Const. amend. VIII. In considering an Eighth

Amendment excessive force claim, [the Court] must consider both a

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

a sufficiently culpable state of mind,’ and (2) ‘if the alleged wrongdoing

was objectively harmful enough to establish a constitutional violation.’”

Tate v. Rockford, 497 F. App’x. 921, 923 (11th Cir. 2012) (per curiam)

(quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992)).

In both Fourteenth and Eighth Amendment

excessive force claims, whether the use of force

violates an inmate’s constitutional rights

“ultimately turns on ‘whether force was applied in

a good faith effort to maintain or restore discipline

or maliciously and sadistically for the very purpose

of causing harm.’” Whitley v. Albers, 475 U.S. 312,

320-21 (1986) (quoting Johnson v. Glick, 481 F.2d

1028, 1033 (2d Cir. 1973)) (establishing the

standard for an Eighth Amendment excessive

force claim); see Bozeman v. Orum, 422 F.3d 1265,

1271 (11th Cir. 2005) (applying the Whitley test in

a Fourteenth Amendment excessive force case). If

force is used “maliciously and sadistically for the

very purpose of causing harm,” then it necessarily

shocks the conscience. See Brown v. Smith, 813

F.2d 1187, 1188 (11th Cir. 1987) (stating that the

Eighth and Fourteenth Amendments give

equivalent protections against excessive force). If

not, then it does not.

Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007) (per curiam).

“Although the extent of the injury is a relevant factor in determining the

amount of force applied, it is not solely determinative of an Eighth

Amendment claim.” Muhammad v. Sapp, 494 F. App’x. 953, 957 (11th

Cir. 2012) (per curiam) (citing Wilkins v. Gaddy, 559 U.S. 34, 37 (2010)).

When prison officials maliciously and sadistically

use force to cause harm, contemporary standards

of decency always are violated. See Whitley, supra,

475 U.S., at 327. This is true whether or not

significant injury is evident. Otherwise, the

Eighth Amendment would permit any physical

punishment, no matter how diabolic or inhuman,

inflicting less than some arbitrary quantity of

injury. Such a result would have been as

unacceptable to the drafters of the Eighth

Amendment as it is today.

Hudson, 503 U.S. at 9.

The standard in an excessive use of force case is as follows:

[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 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). However, “[t]he 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,

112 S.Ct. at 1000 (quotations omitted).

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

The Eleventh Circuit has also noted “that where chemical agents

are used unnecessarily, without penological justification, or for the very

purpose of punishment or harm, that use satisfies the Eighth

Amendment’s objective harm requirement.” Thomas v. Bryant, 614 F.3d

1288, 1311 (11th Cir.2010) (citations omitted). Further, “an officer can be

liable for failing to intervene when another officer uses excessive force.”

Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 924 (11th Cir. 2000);

Ensley v. Soper, 142 F.3d 1402, 1407-08 (11th Cir. 1998). This liability,

however, only arises when the officer is able to intervene and fails to do

so. See Keating v. City of Miami, 598 F.3d 753, 764 (11th Cir. 2010); see

also Fils v. City of Aventura, 647 F.3d 1272, 1290 n.21 (11th Cir. 2011);

Brown v. City of Huntsville, 608 F.3d 724, 740 n.25 (11th Cir. 2010)

(“Because the relevant events happened so quickly, the record does not

reflect any point at which [the officer] could have intervened to prevent

[another officer’s] use of excessive force . . . .”).

V. Analysis

a. Chemical Agents

Plaintiff claims that Tomlin and Woods violated his Eighth

Amendment rights by spraying Plaintiff with chemical agents without

penological justification. AC at 16.

In his Declaration, Tomlin provided a chronology of the events with

details related to the application of chemical agents. He stated, in

relevant part:

Organized chemical and physical force was

utilized on inmate Brown, in order to quell his

disturbance and to overcome his physical

resistance to lawful commands.

Sergeant Sean Johnson initially counseled

with Brown, due to him kicking on the door of his

assigned cell.

Brown refused to comply with Sergeant

Johnson’s orders

I arrived cell-front, and ordered Brown to

cease his disruptive behavior, to which he refused

to comply.

I reviewed Brown’s DC4-650b and contacted

RN Shannon Marshall, both of which indicated

that he did not have any medical conditions that

would be exacerbated by the use of chemical

agents.

Hand-held video-recording was initiated by

Camera Operator #1, Officer William Crouch, and

crisis intervention techniques were conducted by

RN Harold, which were deemed unsuccessful.

I contacted the Duty Warden, Ms. Stanford,

who authorized the use of OC chemical agents, to

bring Brown into compliance with lawful orders.

I issued Brown a final order to cease his

disruptive behavior, and advised him that failure

to comply with that order would result in the use

of chemical agents.

I also advised him, if chemical agents were

utilized, he would be required to submit to

restraint procedures in order to receive a cool-

water decontamination shower, and that failure to

comply would result in additional applications of

chemical agents.

At the conclusion of the three (3) minute

time-frame, Brown continued his disruptive

behavior by yelling out of the rear window of his

assigned cell and wrapped himself in his state-

issued mattress, linens, and clothing.

Captain Woods utilized two (2) applications

of OC chemical agents, which was unsuccessful in

gaining his compliance with lawful orders.

I contacted the Duty Warden, Ms. Stanford,

who authorized the use of CS chemical agents, if

necessary, to bring Brown into compliance with

lawful orders.

Captain Woods utilized one (1) application of

CS chemical agents, which was unsuccessful in

gaining Brown’s compliance with lawful orders.

I contacted the Duty Warden, Ms. Stanford,

who authorized the use of Forced Cell Extraction

Team, if necessary, to bring Brown into

compliance with lawful orders.

. . . .

Mot. Ex. A (paragraph enumeration omitted). Tomlin then describes the

use of physical force and the later ordering of a four-man carry of Plaintiff

to the decontamination shower. Id. Plaintiff then underwent a use-of-

force medical assessment. Id. Tomlin continued that:

I instructed Brown to remain in an upright

seated or standing position for a period of sixty (60)

minutes following the application of chemical

agents, not to use any soaps, lotions or ointments

for seventy-two (72) hours, and not to rub the

affected area with a cloth.

. . . .

The use of force incident appears to be in

compliance with use of force policy, Florida

Administrative Code 33-602.210.

Brown received three (3) Disciplinary

Reports as a result of this incident: One (1) for 9-

17 (Disorderly Conduct), written by Sergeant

Johnson; one (1) for 6-1 (Disobeying a Verbal

Order); written by me; and one (1) for 7-4 (Misuse

of State Property), written by me.

Mot. Ex. A at 5 (paragraph enumeration omitted). Tomlin’s Use of Force

Incident Report reiterates the statements in Tomlin’s Declaration. Mot.

Ex. I.

In his Declaration, Woods described the use of chemical agents as

follows:

At approximately 9:45PM, on June 22, 2019,

while assigned as the D-Shift Supervisor, I was

present on B-Wing due to an organized chemical

use of force on Inmate Brown, Gregory [].

Prior to force being utilized, Lieutenant

Teddy Tomlin advised me that Brown had been

creating a disturbance on the wing by kicking on

the cell door, and that the Duty Warden,

Classification Supervisor, Krissy Stanford had

authorized the use of OC chemical agents.

At this time, I administered three (3) one (1)

second bursts of OC chemical agents into cell

B1324S, through the handcuffing port, striking

the state-issued mattress, linens and clothing that

Brown was utilizing to block the application of

chemical agents.

After the allotted time, Brown continued to

refuse all orders.

At approximately 9:52PM, I administered

three (3) one (1) second bursts of OC chemical

agents into cell B1324S, through the handcuffing

port, striking the state-issued mattress, linens and

clothing that Brown was utilizing to block the

application of chemical agents.

After the allotted time, Brown continued to

refuse all orders.

At approximately 10:00PM, I administered

three one (1) second bursts of CS chemical agents

into cell B1324S, through the handcuffing port,

striking the state issued mattress, linens and

clothing that Brown was utilizing to block the

application of chemical agents.

No further force was utilized by this writer.

I received a post use of force medical

assessment, with no injuries noted.

I am certified in the use of chemical agents

as reflected on my [] (Firearms Qualifications

Card), which is valid through 04/2020.

. . . .

Mot. Ex. B (paragraph enumeration omitted). Woods’s Report of Force

Used (Mot. Exs. F, H) and Use of Force Incident Report (Mot. Ex. I)

reiterate the statements made in Woods’s Declaration.

In his Declaration, Plaintiff states the following about the use of

chemical agents:

On that day, I was locked in a cell with a

toilet that was full of feces and urine and could

only be flushed by the guards outside the cell. I had

placed a piece of paper in the window that said,

“FLUSH” but as of 9:30 p.m. on June 22, 2019,

none of the officers would flush the toilet for me all

day. The cell was stifling with the smell of human

waste.

That night, Lieut. Teddy Tomlin came to my

cell without the camera and told me that the

“higher ups” were upset with me and had ordered

that I should be given a rough cell extraction and

he said there was no way out. Lieut. Tomlin told

me “I’ll tell the cell extraction members to beat you

to sleep if you make me do paperwork and gas

you.” He told me he would go easier on me if I

would make some noise for the camera.

At about 9:30 p.m. Lieut. Tomlin approached

my cell and I started tapping on the window for the

camera. Lieut. Tomlin stated on video that I was

causing a disturbance and at the time, I was

repeatedly tapping on the window with a brush. I

admit I did not stop tapping when told to do so

because that is what we had agreed to.

After a few minutes, I stopped the tapping.

Lieut. Tomlin said something about using

chemical agents and I begin to cover myself with

bedding since I believed that Tomlin was going to

use chemical agents as he said he would do. I knew

there was nothing I could do to stop it from

happening so I tried to make it as easy as I could.

Lieut. Tomlin came back and said to the

camera that I was using my bedding to protect

myself from the effects of chemical agents. Then,

without further warning, Capt. Brandon Woods

sprayed me with chemical agents through the

opening in the handcuff port.

A little later, Lieut. Tomlin returned with

Capt. Woods and noted that I was using my

bedding as a shield against the chemical spray.

Without further notice, Capt. Woods began

spraying three blasts of chemical agents. I tried to

avoid the gas on my skin and in my mouth and

nose as much as I could with my bedding.

A little later, they returned and Capt. Woods

sprayed three more blasts of chemicals. I wanted

to agree [to] cuff up to try to avoid the cell

extraction although Lieut. Tomlin had told me I

would have the team run on me. I thought he

would live up to his promise to go easier. Lieut.

Tomlin returned with the Cell Extraction Team.

He had Nurse Marshall ask me if I would cuff up

and I said I would but I couldn’t speak very loud

because I was still choking on gas. I said I would

and I think Nurse Marshal heard me but she

turned and said, “That’s a ‘no.’” Tomlin asked me,

“Are you gonna come out?” and without waiting for

a response, Tomlin ordered the team into my cell.

. . . .

Resp. Ex. 1 (paragraph enumeration omitted).

The video evidence begins at 9:35 p.m. on June 22, 2019, with

Tomlin stating on video that Plaintiff is causing a disturbance by kicking

and banging on his cell door and back window. Resp. Ex. 2. Tomlin

explains that he and a nurse will try to persuade Plaintiff to cease his

disturbance. Id. Tomlin and the nurse walk toward Plaintiff’s cell and

Plaintiff can be heard and seen banging violently on his cell door. Id. It

appears he has a white piece of paper stuck to his cell door, though the

video does not show if anything is written on the paper. Id. The nurse

asks Plaintiff to stop his disturbance, but Plaintiff does not cease. Id.

Tomlin then gives Plaintiff one final order to cease, but Plaintiff

continues banging on his door. Id.

Plaintiff then begins wrapping clothing around his mouth and face.

Id. Tomlin leaves and reappears with Woods. Id. Tomlin addresses the

video, stating Plaintiff is wrapping himself in his state-issued clothing

and bedding to protect himself. Id. Woods then approaches Plaintiff’s

open handcuffing port and administers chemical agents into Plaintiff’s

cell at 9:45 p.m. Id. Tomlin and Woods walk out of the camera’s view. Id.

Plaintiff can be seen through the cell window, fanning and wiping his

face near the rear of his cell. Id. Tomlin and Woods return, and Tomlin

asks Plaintiff if he would like to take a decontamination shower, and no

response is heard from Plaintiff. Id. Tomlin asks the camera man to

approach the cell window and Plaintiff can been seen lying on the floor of

his cell wrapped in his state-issued linens and bedding. Id. Woods then

administers through the handcuffing port three more bursts of chemical

agents at 9:52 p.m. Id. Tomlin and Woods walk outside the camera’s view.

Id. The video does not show Plaintiff through the cell window following

the second use of chemical agents. Id.

Tomlin and Woods return, and Tomlin asks Plaintiff if he wants to

take a decontamination shower. Id. No audible response from Plaintiff is

heard. Id. Tomlin then opens the handcuffing port and Woods

administers a third application of three bursts of chemical agents at

10:00 p.m. Id. Woods and Tomlin then walk away. Id. Plaintiff is seen

through the cell window standing up, wiping his face with his linens, and

fanning the air near the rear of his cell. Id. A few minutes later, Plaintiff

appears to be dancing or pumping his fists in the air, but no banging

sounds are heard. Id. Tomlin returns with a five-man Cell Extraction

Team.

In this case, Plaintiff does not challenge Tomlin’s and Woods’s

administration of the first round of chemical agents. Instead, he alleges

that they had no penological justification for administering the second

and third rounds “without notice.” Resp. Ex 1. Tomlin states that all

three applications of chemical agents were “unsuccessful in gaining

[Plaintiff’s] compliance with lawful orders.” Mot. Ex. A. Woods also states

that after each application, “[Plaintiff] continued to refuse all orders.”

Mot. Ex. B.

However, while the video footage provides a detailed chronology, it

does not capture Plaintiff refusing to comply with Tomlin’s or Woods’s

orders following the first application of chemical agents. Indeed, before

the first use of chemical agents, Plaintiff is seen and heard violently

banging on his door, but no such banging or noises are seen or heard after

the first chemical spray. Further, although Tomlin can be heard asking

Plaintiff to submit to a decontamination shower following each use of

chemical agents, the video does not capture an audible response from

Plaintiff refusing Tomlin’s orders or otherwise indicating Plaintiff

acknowledged or heard Tomlin’s questions (possibly because Plaintiff’s

body and face were wrapped in layers of state-issued linens and clothing).

Given the differences in the parties’ sworn recollections, there remain

genuine issues of material fact as to whether Tomlin and Woods

appropriately used chemical agents or maliciously targeted Plaintiff with

excessive force. Defendants’ Motion as to Plaintiff’s Eighth Amendment

claim relating to Tomlin’s and Woods’s application of chemical agents is

due to be denied.

b. Use of Physical Force and Failure to Intervene

Plaintiff alleges that Defendants Watson, Williams, and Bayron

violated his Eighth Amendment rights by using excessive force during

their cell extraction. AC at 16-17. He also claims that Defendants Tomlin

and Woods failed to intervene during the use of excessive force. Id. at 16.

In his Declaration, Tomlin described the use of physical force that

occurred following the third application of chemical agents. Mot. Ex. A.

He stated:

I summoned the Forced Cell Extraction

Team, who introduced themselves on the hand-

held video camera.

RN Marshall then explained to Brown the

benefits of receiving a cool-water decontamination

shower, and advised him that failure to comply

with that order would result in the use of the

Forced Cell Extraction Team.

Inmate Brown continued to refuse all orders.

I ordered for the cell door to be opened, and

the Forced Cell Extraction Team utilized the least

amount of force necessary to control and restrain

Inmate Brown.

Once Brown was restrained, I ordered him to

stand up and walk to the shower area, to which he

refused.

I instructed team members to conduct a

proper four-man carry technique, to carry him to

the second-floor shower.

Upon arriving at the second-floor shower,

Brown became compliant with all orders. All force

ceased at this time.

Brown received a cool-water

decontamination shower and clean boxers, and

was then escorted to the Florida State Prison

Medical Clinic, where he received a post use of

force medical assessment by RN Marshall, with

the following injuries noted: A laceration below his

left eyebrow, a laceration to the left side of his

upper lip, abrasions to his left and right cheek and

a swollen bottom lip.

. . . .

Following the assessment, Brown was

escorted back to B-Wing and placed in the third-

floor shower, awaiting the decontamination of his

assigned cell.

Once his assigned cell was decontaminated,

Inmate Brown was resecured in cell B1324S,

without further incident.

I conducted a closing statement on hand-held

camera and all videorecording ceased.

Inmate Brown made the following allegation

during this incident; He stated, “Your finger is in

my ass[.]”

This allegation is refuted by hand-held video

and is not PREA reportable.

Cell B1324S was decontaminated by B-Wing

orderlies under the direct supervision of B-Wing

staff.

Brown was monitored for the required sixty

(60) minute time frame by Officer Crouch, with no

signs of respiratory distress noted.

The use of force incident appears to be in

compliance with use of force policy, Florida

Administrative Code 33-602.210.

Brown received three (3) Disciplinary

Reports as a result of this incident: One (1) for 9-

17 (Disorderly Conduct), written by Sergeant

Johnson; one (1) for 6-1 (Disobeying a Verbal

Order); written by me; and one (1) for 7-4 (Misuse

of State Property), written by me.

Mot. Ex. A (paragraph enumeration omitted). Woods discussed

witnessing the use of physical force in his Declaration. Mot. Ex. B. Woods

stated:

At approximately 10:14PM, I witnessed the

Forced Cell Extraction Team, consisting of

Sergeant Tyler Watson, Sergeant Alberto Bayron,

Sergeant Allen Williams, Sergeant Benjamin

Golemnbiewski and Sergeant Gregory Garrett,

utilize physical force to control and restrain

Brown.

At approximately 10:18 PM, I witnessed Sgt.

Watson, Sergeant Bayron, Sergeant Williams, and

Sergeant Garrett utilize physical force to conduct

a four-man carry technique, to carry Brown from

his assigned cell to the second-floor shower area.

No further force was witnessed by this

writer.

Mot. Ex. B (paragraph enumeration omitted).

Defendants Watson, Bayron, and Williams also submitted

Declarations. Mot. Exs. C-E. Each Declaration begins describing the

incident as follows:

On June 22, 2019, while assigned as the

Forced Cell Extraction Team member [ ], I was

present on B-Wing, due to an organized physical

use of force on Inmate Brown, Gregory DC#

J39575.

I introduced myself on hand-held video and

Lieutenant Teddy Tomlin instructed the team

members to utilize the least amount of force

necessary to control and restrain Inmate Brown,

should we enter the cell.

Lieutenant Tomlin issued Brown a final

order to submit to restraint procedures, in order to

receive a cool-water decontamination shower, and

advised him that failure to comply would result in

the use of the Forced Cell Extraction Team.

Brown continued to refuse all orders.

At approximately 10:14PM, Lieutenant

Tomlin attempted to open the door to cell B1324S,

but Brown utilized his body leverage to prevent

the door from opening fully.

Mot. Exs. C at 1-2, D at 1-2, E at 1-2 (paragraph enumeration omitted).

Watson described his participation as follows:

As Lieutenant Tomlin and Sergeant Alberto

Bayron were able to pull the cell door open, Brown

attempted to dive through the opening in the cell

door.

I utilized the protective shield to strike

Brown in his facial area, and then forced him to

the floor, in a prone position.

The protective shield then became wedged in

the cell door threshold, preventing me from being

able to cover Brown and protect other team

members from possible striking blows.

I relinquished the protective shield and

utilized my full body weight to lay on Brown’s

back, preventing him from possibly striking other

team members.

Other team members were able to acquire a

grasp of Brown’s legs, and pull him further into the

cell, so that team members could reposition

themselves around him.

As other team members were able to enter

the cell, I repositioned myself on Brown’s right

side, grasped his right bicep with both of my

hands, and attempted to pull his right arm from

under his body.

Brown locked his arms underneath his chest,

and refused to relinquish them.

Due to Brown being positioned at the

doorway of the cell, I was unable to maintain my

position on the right side of him.

I repositioned my body near Brown’s head,

grasped his upper back, and utilized my body

weight to pin his upper body to the floor.

Once other team members were able to

restrain Brown, I relinquished my grasp of Brown

and stood up.

All force temporarily ceased at this time.

Lieutenant Tomlin ordered Brown to stand

up and walk to the shower area, to which he

refused.

Lieutenant Tomlin then instructed team

members to conduct a proper four-man carry

technique, to carry Brown to the second-floor

shower area.

I grasped his left bicep with both my hands,

and assisted other team members in conducting a

four-man carry technique, to carry Brown to the

second-floor shower.

Upon arriving at the shower area, I allowed

him to stand up and relinquished my grasp of him.

No further force was utilized or witnessed by

this writer.

I received a post use of force medical

assessment, with no injuries noted.

Mot. Ex. C (paragraph enumeration omitted). Watson’s Use of Force

Incident Report reiterates those statements. Mot. Ex. J.

In his Declaration, Bayron explained his participation as follows:

As Lieutenant Tomlin and I were able to pull

the cell door open, Brown attempted to dive

through the opening in the cell door.

I witnessed Sgt. Tyler Watson strike Brown

with the protective shield, and force him to the

floor, in [a] prone position.

Due to Brown’s position in the doorway of the

cell, I was unable to acquire a grasp of his arms.

I positioned myself [on] his left side, grasped

his left bicep with both of my hands, and

attempted to pull his arm from underneath his

body.

As other team members were able to pull

Brown further into the cell, I released my grasp of

his arm, disengaged, and stood up.

I attempted to enter the cell, but was unable

to do so, due to multiple team members being

positioned in the threshold of the cell.

Once other team members were able to

restrain Brown, I exited the cell and all force

temporarily ceased.

Lieutenant Tomlin ordered Brown to stand

up and walk to the shower area, to which he

refused.

Lt. Tomlin then instructed team members to

conduct a proper four-man carry technique to

carry inmate Brown to the shower area.

I grasped Brown’s left leg with both of my

hands, and assisted other team members in

conducting a four man carry technique to carry

Brown to the second floor shower.

Upon arriving at the shower area, I allowed

him to stand up and relinquished my grasp of him.

No further force was utilized or witnessed by

this writer.

I received a post use of force medical

assessment, with no injuries noted.

Mot. Ex. D (paragraph enumeration omitted).

In his Declaration, Williams described his participation as follows:

As Lieutenant Tomlin and Sergeant Alberto

Bayron were able to pull the cell door open, Brown

attempted to dive through the opening in the cell

door[.]

I witnessed Sergeant Tyler Watson force him

to the floor, in a prone position.

Due to Brown’s position in the doorway of the

cell, I was unable to apply hand restraints.

I positioned myself on Brown’s right side,

and attempted multiple times to grasp his right

arm, but was unable to do so.

As other team members were able to pull

Brown further into the cell, I temporarily

disengaged and stood up.

I was then able to enter the cell, grasp

Brown’s left arm with my left hand, and apply

hand restraints to him.

Once restraints were applied, force

temporarily ceased.

Lieutenant Tomlin ordered Brown to stand

up and walk to the shower area, to which he

refused.

Lieutenant Tomlin then instructed team

members to conduct a proper four-man carry

technique to carry Brown to the shower area.

I grasped his right arm with both of my

hands, and assisted other team members in

conducting a four man carry technique, to carry

him to the second floor shower.

Upon arriving at the shower area, I allowed

Brown to stand up and relinquished my grasp of

him.

No further force was utilized or witnessed by

this writer.

I received a post use of force medical

assessment with no injuries noted.

Mot. Ex. E (paragraph enumeration omitted). In his Use of Force Incident

Report, Williams made the same statements when detailing the incident.

See Mot. Ex. L.

The Post Use of Force Exam Record and Diagram of Injury lists

these injuries: (1) 2.5 cm x 0.5 cm x 0.1 cm laceration below left eyebrow;

(2) 0.75 cm x 0.5 cm x 0.5 cm to upper left side of lip; (3) abrasion to right

and left cheeks; (4) swollen bottom lip; and (5) mild bleeding noted over

left eye and mouth. Mot. Ex. Q.

In his Declaration opposing Defendants’ Motion, Plaintiff describes

the physical force as follows:

Lieut. Tomlin returned with the Cell

Extraction Team. He had Nurse Marshall ask me

if I would cuff up and I said I would but I couldn’t

speak very loud because I was still choking on gas.

I said I would and I think Nurse Marshal heard

me but she turned and said, “That’s a ‘no.’” Tomlin

asked me, “Are you gonna come out?” and without

waiting for a response, Tomlin ordered the team

into my cell.

The team members piled on putting all their

body weight on me. My pants were pulled down

and someone stuck two fingers into my rectum and

I yelled “get your fingers out my ass[.]” I had come

part way out the door so the camera could see what

they were doing to me. The team dragged me back

in and had the shackles on my legs right away. I

never locked my arms. In about 30 seconds, they

had me handcuffed but the officers continued to

say “give me your hands.” I replied, “You got my

hands.” The team knew I was already cuffed but

they all kept yelling “stop resisting,” to which I

replied, “you got my hands, I’m in restraints, I’m

cuffed up, I’m already cuffed up.” They kept

yelling, “stop resisting,” and I answered, “I’m not

resisting I’m already cuffed up.”

Punches were coming from all directions and

striking me in the face, ribs, stomach, and back.

Sgt. Watson slammed my head against the floor

and my locker. Sgt. Williams and Sgt. Bayron both

choked me by pulling on the sheet I had wrapped

around my face and neck. Garrett had all his

weight on both knees in my back and

Golembiewski shouted “stop resisting” and

blocked the camera. Lieut. Tomlin was at the door.

Neither Lieut. Tomlin nor Capt. Woods or any of

the officers tried to intervene, though they could

have.

The Cell Extraction Team members

continued to beat me although I was not resisting

and I was screaming with pain. One of the officers

also gouged my right eye which continues to make

it hard for me to see at distances.

I was carried to the shower then taken to the

clinic for a post use of force physical. The escort on

my left used a pain technique on my bicep though

I wasn’t resisting. Officers do that so if you pull

away they slam you. Nurse Marshall documented

lacerations below my left eyebrow, lacerations to

my upper lip, left side, and abrasions to my right

and left cheek. Nurse Marshall didn’t document

the broken teeth or the fact that my teeth went

through my lip or the bleeding from my rectum,

though I pointed those things out to her.

My dermabonded cuts kept splitting open. A

few days later, a second physical was done by

Nurse Burgess that was more complete. I was able

to see the second examination record in my

medical file but I have not been able to get a copy

of it.

On July 2, 2019, Sgt. Watson came to my cell

and told me that Lieut. Tomlin told the Cell

Extraction Team to beat me “and that’s why you

got beat like you did.”

Resp. Ex. 1 (paragraph enumeration omitted).

The handheld video footage captures the cell extraction team line

up outside Plaintiff’s cell at Tomlin’s direction. Resp. Ex. 2. Tomlin and

Nurse Marshall address Plaintiff and Nurse Marshall advises Plaintiff

about the benefits of a decontamination shower. Id. Nurse Marshall is

heard asking Plaintiff, “Are you going to cuff up and come out?” Id. No

audible response from Plaintiff is heard, but Nurse Marshall turns to

Tomlin and says, “That’s a no.” Id. Tomlin asks Plaintiff a final time if he

wants to come out for a decontamination shower and again no audible

response is heard. Tomlin then attempts to open the cell door and

Plaintiff is seen trying to hold the cell door shut using his body weight.

The cell extraction team eventually opens the door and an obvious

physical struggle ensues.

However, once Plaintiff’s cell door is open and the altercation

begins, the Court is neither able to see each Defendant’s specific actions

during the restraining process nor Plaintiff’s compliance or lack thereof.

Instead, the specific physical acts of each participant are obscured and

blocked by the “dog pile” of cell extraction team members and Tomlin’s

and Woods’s continual movements in front of the camera. Although at

various times during the incident, Tomlin yells at Plaintiff to “stop

resisting,” Plaintiff alleges he was never resisting and the video evidence

does not show otherwise.

Approximately three minutes after the physical force starts, Woods

states to the camera that hand and leg restraints are on and the cell

extraction team members begin walking out of Plaintiff’s cell. Tomlin

tells Plaintiff to stand up and then turns to ask the cell extraction team

to assist. It is then that Plaintiff is seen on the video footage for the first

time since Tomlin opened the cell door for the extraction team. Plaintiff’s

body appears limp, and as the team members pick Plaintiff up, the

camera pans to Plaintiff’s face showing it is covered in blood. Plaintiff is

carried to a decontamination shower and then receives a medical

evaluation.

Again, while the video evidence provides a chronology of how the

events generally unfolded, it fails to capture Defendants’ extraction

efforts and their specific interactions with Plaintiff during the use of

physical force. Given the difference in Plaintiff’s sworn recollection and

Defendants’ Declarations, there remain genuine issues of material fact

as to how Plaintiff disregarded orders; whether Watson, Bayron, and

Williams appropriately used force to restrain Plaintiff and extract him

from the cell; whether the force used was excessive, causing Plaintiff

injuries; and whether Tomlin and Woods failed to intervene in that

excessive force. As such, Defendants’ Motion as to Plaintiff’s Eighth

Amendment claims related to the use of physical force during the cell

extraction and failure to intervene against Defendants Watson, Williams,

Bayron, Tomlin, and Woods is due to be denied.

Accordingly, it is

ORDERED:

1. Defendants’ Motion for Summary Judgment (Doc. 38) is

DENIED.

2. Within thirty days of the date of this Order, the parties

shall confer in good faith in attempt to resolve the remaining claims. If

the parties reach a settlement, they shall promptly notify the Court. If

the parties cannot settle the claims privately, the parties shall file a joint

notice advising whether the parties believe a settlement conference with

the United States Magistrate Judge will be beneficial.

DONE AND ORDERED at Jacksonville, Florida, this 16th day of

February, 2022.

United States District Judge

Jax-7

C: Gregory Brown, # J39575

counsel of record

38