# Cauthen v. Blackmon

> District Court, M.D. Florida · March 30, 2022

URL: https://www.frixlaw.com/law-library/cases/10109903

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 30, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10109903

## How later opinions describe it (automated extraction)

- holding the employment status of the defendant—a private company versus the federal government in Carlson—was a “critical difference” in the analysis whether a Bivens remedy would extend to a prisoner’s claim that a privately operated prison violated his Eighth Amendment rights
- noting the alien detainees could have sought injunctive or habeas relief

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION

RECO VALARIE CAUTHEN,

Plaintiff,

v. Case No. 5:20-cv-371-BJD-PRL

LIEUTENANT BLACKMON,
et al.,

Defendants.
_______________________________

ORDER
I. Status
Plaintiff, Reco Valarie Cauthen, an inmate of the Federal Bureau of
Prisons (BOP), is proceeding in this action on an amended civil rights
complaint under Bivens1 (Doc. 16; Am. Compl.). Plaintiff names as Defendants
Lieutenant Blackmon, Officer Wise, Officer Davis, and Nurse Mathews.
Plaintiff alleges he had a heart attack inside his cell on August 30, 2019, and,
when he told Defendant Officer Wise that he needed medical attention, Wise
notified Defendant Lieutenant Blackmon, who entered Plaintiff’s cell and
“assaulted [Plaintiff] breaking [his] arm in [two] places.” Am. Compl. at 5.
Defendant Blackmon took Plaintiff to be evaluated by Defendant Nurse

1 Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S.
388 (1971).
Mathews, but Defendant Mathews “placed [him] back in [his] prison cell for 14
hours.” Id. The following morning, Plaintiff notified Defendant Mathews he

still needed medical attention, and he was then “rushed to the E.R. at Leesburg
Regional Medical Center.” Id. Plaintiff remained in the hospital for five days.
Id. He was diagnosed with broken bones and a heart attack. Id. Plaintiff
contends Defendants violated his Eighth Amendment right to be free from

cruel and unusual punishment. Id. at 3. As relief, he seeks an order
terminating “the staff members responsible for [his] pain [and] suffering”;
surgery for his shoulder; and compensatory damages. Id.
Before the Court are two motions to dismiss—one by Defendants

Blackmon and Davis (Doc. 48; Blackmon Motion), and one by Defendant Wise
(Doc. 57; Wise Motion).2 Plaintiff has responded to the motions (Doc. 49; Pl.
Blackmon Resp.) (Doc. 59; Pl. Wise Resp.). As such, the motions are ripe for
this Court’s review.

2 Despite two efforts by the United States Marshals Service, Defendant
Mathews has not been served. See Unexecuted Returns (Docs. 19, 51). Thus, the
Court ordered Plaintiff to show cause why Defendant Mathews should not be
dismissed. See Order (Doc. 53). Plaintiff responded to the Order to Show Cause (Doc.
55), saying “the BOP is deliberately hiding Nurse Mathews.” He says Defendant
Mathews is the one who wrote the order for him to be transported to the emergency
room on August 31, 2019. Given Plaintiff’s contention that Defendant Mathews
directed he be transported to the hospital, the Court will permit Plaintiff an
opportunity to attempt to identify this Defendant or service through discovery.
II. Motion to Dismiss Standard
Under the Federal Rules of Civil Procedure, a defendant may move to

dismiss a complaint for a plaintiff’s “failure to state a claim upon which relief
may be granted.” Fed. R. Civ. P. 12(b)(6). In ruling on such a motion, the court
must accept the plaintiff’s allegations as true, liberally construing those by a
plaintiff proceeding pro se, but need not accept as true legal conclusions. Iqbal,

556 U.S. at 678. Though detailed factual allegations are not required, Rule 8(a)
demands “more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Id. A plaintiff should allege enough facts “to raise a reasonable
expectation that discovery will reveal evidence” supporting the plaintiff’s

claims. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).
III. Analysis
Defendants jointly argue, in nearly identical motions,3 that Plaintiff’s
excessive force claim is not cognizable under Bivens after the Supreme Court’s

decision in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), and even if it is, Bivens
does not extend to official-capacity claims. Def. Motions at 3, 12. Alternatively,
Defendants invoke qualified immunity. Id. at 10, 12. Plaintiff’s responses to

3 All served Defendants are represented by the same attorney. They submitted
separate motions because Defendant Wise was served after Defendants Blackmon
and Davis. When citing their motions, if material appears on the same page in both
motions, the Court will cite them jointly as “Def. Motions.”
the motions are nearly identical and largely unhelpful.4 Plaintiff merely
repeats the relief he seeks in his amended complaint. Pl. Resps. at 1. He does

not address Defendants’ Bivens argument. Even though Plaintiff does not
directly rebut Defendants’ legal argument that Bivens does not extend to his
excessive force claim, the Court finds it necessary to address that argument
given Plaintiff is proceeding pro se, and because he contends “the assault . . .

caused by . . . these Defendants [violated his] 8th Amendment rights.” Pl. Wise
Resp. at 1.
As an initial matter, however, the Court notes that, if an excessive force
claim is cognizable under Bivens, Plaintiff’s claims against Defendants in their

official capacities and his requests for injunctive relief would be subject to
dismissal. In a Bivens action, the appropriate remedy is monetary damages,
not injunctive relief. See Carlson v. Green, 446 U.S. 14, 21 (1980) (recognizing
Bivens extends damages remedies against individuals). Additionally, a Bivens

claim may proceed against only an individual actor, not against an entity or
agency. F.D.I.C. v. Meyer, 510 U.S. 471, 474 (1994).

4 The Court will cite Plaintiff’s responses jointly as “Pl. Resps.”
A. Excessive Force Under Bivens5

In Bivens, the Supreme Court recognized a violation of a citizen’s Fourth
Amendment right to be free from unreasonable searches and seizures “gives
rise to a cause of action for damages” against the offending federal officers. 403
U.S. at 389. See also Carlson, 446 U.S. at 18 (“Bivens established that the
victims of a constitutional violation by a federal agent have a right to recover

damages against the official in federal court despite the absence of any statute
conferring such a right.”). After Bivens, the Supreme Court has recognized an
implied damages action for the violation of one’s constitutional rights only in
two other contexts: gender discrimination in the workplace; and deliberate

indifference to serious medical needs in prison. See Ziglar, 137 S. Ct. at 1854-
55 (citing Davis v. Passman, 442 U.S. 228 (1979); Carlson, 446 U.S. at 21).
Of particular relevance here, in Carlson, the Court held a Bivens remedy
extended to a claim alleging prison officials violated an inmate’s Eighth

Amendment right to receive adequate medical care, even though the plaintiff
also could have sued under the Federal Tort Claims Act (FTCA). 446 U.S. at
19. The Court noted, “[W]e have here no explicit congressional declaration that

5 Given Defendant Mathews has not been served, the Court limits its Bivens
analysis to the argument raised by the Defendants who have appeared. However, the
Court notes Plaintiff’s claim against Defendant Mathews for deliberate indifference
to serious medical needs is cognizable under Bivens. See Carlson v. Green, 446 U.S.
14, 19 (1980) (extending Bivens to a claim for the violation of a prisoner’s Eighth
Amendment right to adequate medical care).
persons injured by federal officers’ violations of the Eighth Amendment may
not recover money damages from the agents.” Id. The Court held an aggrieved

prisoner or his survivors should not be limited to a remedy under the FTCA
because a Bivens claim for damages “serves a deterrent purpose.” Id. at 20-21.
Since deciding the Bivens trilogy (Bivens, Davis, and Carlson), the Court
has “changed course,” declining to infer a cause of action that is “not explicit in

the text of the provision that was allegedly violated.” Hernandez v. Mesa, 140
S. Ct. 735, 741 (2020) (quoting Ziglar, 137 S. Ct. at 1855).6 However, the Court
did not overrule the Bivens trilogy and noted that “no congressional enactment
has disapproved of these decisions.” Ziglar, 137 S. Ct. at 1856. In fact, the Court

emphasized that a Bivens claim remains “a fixed principle in the law.” Id. The
Court stated, “Bivens does vindicate the Constitution by allowing some redress
for injuries, and it provides instruction and guidance to federal law
enforcement officers going forward.” Id. at 1856-57.

While recognizing the continued vitality of Bivens and its progeny, the
Ziglar Court instructed that lower courts are to exercise “caution before

6 In acknowledgment that it may have infringed upon legislative territory in
the past, the Court recently reiterated and emphasized that “expanding the Bivens
remedy is . . . a ‘disfavored’ judicial activity,” and even went so far as to question
whether Bivens, Davis, and Carlson would have been decided differently if heard by
the Court more recently. Ziglar, 137 S. Ct. at 1856-57 (quoting in part Iqbal, 556 U.S.
at 675). See also Hernandez, 140 S. Ct. at 741 (explaining that, when courts, through
their “Judicial Power” create new claims for damages, they risk “arrogating
legislative power”).
extending Bivens remedies into any new context.” Id. at 1857. Thus, when
confronted with a Bivens claim, courts should engage in a two-step inquiry.

First, a court should determine “whether [the] case presents a new Bivens
context,” or one that “diff[ers] in a meaningful way from previous Bivens cases
decided by th[e] Court.” Id. at 1859. See also Hernandez, 140 S. Ct. at 743.
Second, if a court determines a case does present a new context, then the court

should consider whether “special factors” counsel hesitation in extending a
damages remedy. Ziglar, 137 S. Ct. at 1857, 1861-62.
i. New Context
The Supreme Court has not articulated “an exhaustive list of differences

that [would be] meaningful enough to make a given context a new one,” but, in
Ziglar, it set forth some relevant factors:
the rank of the officers involved; the constitutional
right at issue; the generality or specificity of the
official action; the extent of judicial guidance as to how
an officer should respond to the problem or emergency
to be confronted; the statutory or other legal mandate
under which the officer was operating; the risk of
disruptive intrusion by the Judiciary into the
functioning of other branches; or the presence of
potential special factors that previous Bivens cases
did not consider.

Id. at 1859-60. Though the Court in Ziglar identified the “constitutional right
at issue” as a relevant consideration, the Court later clarified that the
constitutional right at issue cannot alone be the determinative consideration.
Hernandez, 140 S. Ct. at 743.

For instance, in Hernandez, the plaintiffs argued their Fourth and Fifth
Amendment claims did not present “a new context because Bivens and Davis
involved claims under those same two amendments.” Id. The Court rejected
that argument because the nature of the claims in Hernandez was markedly

different than those in Bivens or Davis. The plaintiffs in Hernandez sought
redress from a Border Patrol agent for the cross-border shooting of their son, a
Mexican national, which resulted in his death. Id. at 740. The Court noted,
“[O]nce we look beyond the constitutional provisions involved in Bivens, Davis,

and the present case, it is glaringly obvious that [the plaintiffs’] claims involve
a new context.” Id. at 743.
In this case, not only is the constitutional provision the same as that
involved in Carlson, but other factors the Ziglar Court identified persuade this

Court that Plaintiff’s excessive force claim does not present a new context. The
rank of the officers involved is substantially similar—federal correctional
employees. Additionally, judicial guidance in the area of prison conditions and
the treatment of prisoners is extensive, meaning there would be no “disruptive

intrusion by the Judiciary into the functioning of other branches.” Ziglar, 137
S. Ct. at 1860. In fact, one of the preeminent Supreme Court prison-condition
opinions involves a Bivens claim. See Farmer v. Brennan, 511 U.S. 825, 829
(1994) (explaining the plaintiff’s Bivens claim alleged federal prison officials
violated his Eighth Amendment rights by their deliberate indifference to his

safety).
As the Court recognized in Bivens, “That damages may be obtained for
injuries consequent upon a violation of the Fourth Amendment by federal
officials should hardly seem a surprising proposition.” 403 U.S. at 395. The

same proposition holds true in this context: it should hardly be surprising to
federal prison officials that courts and Congress authorize damages awards to
vindicate the violation of an inmate’s Eighth Amendment right to be free from
cruel and unusual punishments, at least when the prisoner sustains a physical

injury. See, e.g., Farmer, 511 U.S. at 828 (“A prison official’s “deliberate
indifference” to a substantial risk of serious harm to an inmate violates the
Eighth Amendment.”); 28 U.S.C. § 1346(b)(2) (“No person convicted of a felony
who is incarcerated while awaiting sentencing or while serving a sentence may

bring a civil action against the United States or an agency, officer, or employee
of the Government, for mental or emotional injury suffered while in custody
without a prior showing of physical injury . . . .”); 42 U.S.C. § 1997e(e) (“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 . . . .”).
That Plaintiff’s excessive force claim implicates the same constitutional
amendment as did the plaintiff’s deliberate indifference claim in Carlson, while

not solely determinative, cannot be disregarded, as Defendants suggest. On
this point, the Court finds persuasive a district court order from this Court’s
Ocala Division, Rivera v. Lebron, No. 5:15-cv-317-RBD-PRL, Doc. 103 (M.D.
Fla. Oct. 29, 2021) (Ocala Order). In that case, a federal prisoner alleged

correctional officers used excessive force against him when they were trying to
prevent him from disposing of contraband. Ocala Order at 2. The plaintiff
offered evidence showing officers caused him serious injuries. Id. at 4-5.
In Rivera, the court found the plaintiff’s claim, though “not identical to

the deliberate claim in Carlson,” did not arise in a new context. Id. at 11. The
court was unpersuaded by an argument that a “divergent legal theor[y] or
factual scenario[]” created a meaningful distinction between the excessive force
claim raised there and the deliberate indifference claim raised in Carlson. Id.

at 12. The court explained, “under either theory . . . an inmate must establish
. . . both an objective deprivation or injury and a subjectively culpable state of
mind.” Ocala Order at 13 (citing Thomas v. Bryant, 614 F.3d 1288, 1304 (11th
Cir. 2010); Swain v. Junior, 961 F.3d 1276, 1285 (11th Cir. 2020)).

Defendants also rely heavily on a Fifth Circuit opinion, which held a
plaintiff’s Fourth Amendment unlawful arrest claim presented a new context
because it was different in “several meaningful ways” from the Fourth
Amendment claim presented in Bivens. See Def. Motions at 5 (citing Byrd v.
Lamb, 990 F.3d 879, 882 (5th Cir. 2021)). In declining to extend a damages

remedy in Byrd, the Fifth Circuit emphasized significant differences between
that plaintiff’s Fourth Amendment claim and the Fourth Amendment claim in
Bivens: the location of the arrest (public property in Byrd versus private
property in Bivens); the nature and extent of the personal invasion (threats

and brandishing of a weapon in Byrd versus a warrantless arrest followed by
manacling the plaintiff in front of family and then later strip-searching him in
Bivens); and the nature of the dispute (personal in Byrd versus official in
Bivens). Id.7

The undersigned finds the Fifth Circuit opinion inapposite. The factual
differences the Byrd court highlighted were material in the context of the
constitutional analysis presented in that case as compared to the context
presented in Bivens. For instance, in the Fourth Amendment context, it is

relevant whether a person is inside his home or on public property when
officers encounter him. See, e.g., Florida v. Jardines, 569 U.S. 1, 6 (2013)
(“[W]hen it comes to the Fourth Amendment, the home is first among equals.”).
In the context of prisoners’ rights, however, it is well “settled that the

7 The plaintiff in Byrd filed a petition for writ of certiorari with the Supreme
Court, which the Court has distributed for conference. See U.S. Supreme Court Case
No. 21-184 (filed Aug. 10, 2021).
treatment a prisoner receives in prison and the conditions under which he is
confined are subject to scrutiny under the Eighth Amendment,” and that

scrutiny is similar regardless of the precise theory under which a plaintiff
proceeds. Farmer, 511 U.S. at 832 (quoting Helling v. McKinney, 509 U.S. 25,
31 (1993)). The Supreme Court explained in Farmer that the Eighth
Amendment broadly prohibits cruel and unusual punishments, regardless of

the form those “punishments” may take:
In its prohibition of “cruel and unusual punishments,”
the Eighth Amendment places restraints on prison
officials, who may not, for example, use excessive
physical force against prisoners. The Amendment also
imposes duties on these 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[.]”

Id. (internal citations omitted).
The Supreme Court also has suggested in dicta that a Bivens remedy
would extend to an Eighth Amendment claim by a federal prisoner against a
federal officer regardless of the precise theory underlying the claim. See Corr.
Servs. Corp. v. Malesko, 534 U.S. 61, 72 (2001) (“If a federal prisoner in a BOP
facility alleges a[n Eighth Amendment] deprivation, he may bring a Bivens
claim against the offending individual officer, subject to the defense of qualified
immunity.”). See also Minneci v. Pollard, 565 U.S. 118, 126 (2012) (holding the
employment status of the defendant—a private company versus the federal
government in Carlson—was a “critical difference” in the analysis whether a

Bivens remedy would extend to a prisoner’s claim that a privately operated
prison violated his Eighth Amendment rights).
For the reasons articulated, the Court finds Plaintiff’s excessive force
claim does not present a new Bivens context. Finding as much, the Court is not

required to proceed to the second step in the Ziglar analysis. However, in an
abundance of caution, the Court will do so.
ii. Special Factors
Defendants argue Plaintiff’s access to the BOP’s grievance procedure and

his ability to file suit against the United States under the FTCA are factors
that counsel hesitation in extending a Bivens remedy here. Def. Motions at 8-
9. The Supreme Court has not defined the phrase, “special factors counseling
hesitation,” though in prior decisions where the Court declined to extend

Bivens remedies to new contexts, it found significant that the
plaintiff(s)/claimant(s) had alternative avenues through which they could seek
administrative or judicial relief for the alleged constitutional violation(s). See
Bush v. Lucas, 462 U.S. 367, 390 (1983) (Marshall and Blackmun, J.,

concurring) (noting the case would have been different “if Congress had not
created a comprehensive scheme that was specifically designed to provide full
compensation to civil service employees who are discharged or disciplined in
violation of their First Amendment rights”); Chappell v. Wallace, 462 U.S. 296,
302 (1983) (“Military personnel, for example, may avail themselves of the

procedures and remedies created by Congress in . . . the Uniform Code of
Military Justice.”); Schweiker v. Chilicky, 487 U.S. 412, 425-26 (1988) (listing
the numerous laws Congress passed to protect “persons affected by incorrect
[social security] eligibility determinations”); Malesko, 534 U.S. at 72 (noting

the claimant conceded at oral argument that “alternative remedies” were
available, including a state-court negligence suit); Wilkie v. Robbins, 551 U.S.
537, 553 (2007) (noting the plaintiff had administrative and judicial processes
available to him for “virtually all of his complaints”); Minneci, 565 U.S. at 125-

26 (finding the availability of state tort law or administrative remedies
provided a “convincing reason for the Judicial Branch to refrain from providing
a new and freestanding remedy in damages”); Ziglar, 137 S. Ct. at 1862-63
(noting the alien detainees could have sought injunctive or habeas relief).

For the reasons cogently and persuasively offered in the Rivera order,
the Court disagrees that the BOP grievance procedure or a claim under the
FTCA provide sufficient alternatives for a prisoner to seek redress for an
alleged Eighth Amendment violation. See Ocala Order at 15-23. The Court

emphasizes some key considerations from the Rivera order. Notably, the
Supreme Court itself has held “the FTCA is not a sufficient protector of the
citizens’ constitutional rights,” at least in the context of a prisoner who suffers
physical injury or death as a result of a federal officer’s violation. Carlson, 446
U.S. at 23. In Carlson, the Court observed, “nothing in the [FTCA] or its

legislative history . . . show[s] that Congress meant to pre-empt a Bivens
remedy or to create an equally effective remedy for constitutional violations.”
Id. at 19. In fact, the Court noted, when Congress amended the FTCA in 1974—
after Bivens was decided—the congressional comments “made it crystal clear

that” the relevant provision “should be viewed as a counterpart to the Bivens
case and its [progeny].” Id. (quoting S. Rep. No 93-588 at 3).
Second, a Bivens claim is intended to deter federal officials from
exceeding their authority. Id. at 21. Neither the BOP nor the FTCA has such a

direct deterrent effect on individual federal officers, who are subject to
“personal financial liability” under Bivens. Id. See also Minecci, 565 U.S. at
126 (finding significant that the defendant was a private company in refusing
to extend a Bivens remedy because the plaintiff, a prisoner, could pursue a

negligence action in state court, whereas federal prisoners “ordinarily cannot
bring state-law tort actions against federal employees (emphasis in original)).
The Supreme Court also has observed that Congress, in enacting the
Prison Litigation Reform Act (PLRA), intended that its exhaustion

requirement would apply not only to state prisoners suing under § 1983 but
also to federal prisoners suing under Bivens. Porter v. Nussle, 534 U.S. 516,
524 (2002) (“[U]nlike the previous provision, which encompassed only § 1983
suits, exhaustion is now required for all ‘action[s] ... brought with respect to
prison conditions,’ whether under § 1983 or ‘any other Federal law.’”).8 In

holding that the PLRA exhaustion requirement applies to all suits about prison
life, regardless of whether brought by state prisoners or federal prisoners, the
Court noted it “generally presume[s] that Congress expects its statutes to be
read in conformity with th[e] Court’s precedents.” Id. at 528 (quoting United

States v. Wells, 519 U.S. 482, 495 (1997) (alterations in original)).
In sum, even if the Court were to conclude Plaintiff’s excessive force
claim arises in a new context under Bivens, the Court finds no special factors
would counsel hesitation in extending a Bivens remedy here.9

8 The 1994 edition of § 1997e did not include the language “or any other Federal
law,” but only applied to actions “brought pursuant to section 1983.” 42 U.S.C. § 1997e
(effective to Apr. 25, 1996).

9 The Court is aware that judges in the Middle District of Florida have reached
the opposite conclusion on this issue. Crocker v. USP 1 Coleman, No. 5:20-cv-568,
2022 WL 272173, at *4-5 (M.D. Fla. Jan. 6, 2022) (declining to extend a damages
remedy in an excessive force case because the facts were different than those in
Carlson, and the prisoner had alternative means to seek redress, including through
the BOP’s grievance procedure and an action against the United States under the
FTCA); Vasquez v. Cheatham, No. 5:21-cv-489-WFJ-PRL, 2021 WL 5826236, at * 4-
5 (M.D. Fla. Dec. 8, 2021) (dismissing a plaintiff’s excessive force claim because it
presented a new context and special factors counseled hesitation in extending a
Bivens remedy). See also Taylor v. Lockett, No. 5:17-cv-23-Oc-02PRL, 2019 WL
764023, at *6-7, 9 (finding a Bivens remedy did not extend to the plaintiff’s First
Amendment retaliation claim or his Eighth Amendment sexual assault claim).
B. Qualified Immunity
Defendants invoke qualified immunity, asserting Plaintiff fails to state

a plausible Eighth Amendment violation against them. Def. Motions at 10.
Defendants Davis and Wise contend Plaintiff wholly fails to lodge any
allegations against them, see Blackmon Motion at 11-12; Wise Motion at 11-
12, while Defendant Blackmon contends Plaintiff does not allege Blackmon

“acted sadistically and maliciously for the purpose of causing harm,” see
Blackmon Motion at 12.
An officer sued in his individual capacity “is entitled to qualified
immunity for his discretionary actions unless he violated ‘clearly established

statutory or constitutional rights of which a reasonable person would have
known.’” Black v. Wigington, 811 F.3d 1259, 1266 (11th Cir. 2016) (quoting
Case v. Eslinger, 555 F.3d 1317, 1325 (11th Cir. 2009)). Qualified immunity
allows officers to exercise their official duties without fear of facing personal

liability. Alcocer v. Mills, 906 F.3d 944, 951 (11th Cir. 2018). The doctrine
protects all but the plainly incompetent or those who knowingly violate an
inmate’s constitutional rights. Id.
Upon asserting a qualified immunity defense, a defendant bears the

initial burden to demonstrate he was acting in his discretionary authority at
the relevant times. Dukes v. Deaton, 852 F.3d 1035, 1041-42 (11th Cir. 2017).
Defendants carry their burden. Thus, the burden shifts to Plaintiff to point to
allegations demonstrating the violation of a clearly established constitutional
right. Alcocer, 906 F.3d at 951. “Because [Bivens] ‘requires proof of an

affirmative causal connection between the official’s acts or omissions and the
alleged constitutional deprivation,’ each defendant is entitled to an
independent qualified-immunity analysis as it relates to his or her actions and
omissions.” Id. (quoting Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir.

1986) (per curiam)).
Plaintiff does not allege Defendants Wise or Davis personally used force
against him or were present when Defendant Blackmon allegedly attacked
him. See Am. Compl. at 5. In fact, Plaintiff does not assert Defendants Wise or

Davis did anything that could liberally be construed as a constitutional
violation. On the contrary, Plaintiff alleges Defendant Wise summoned
Defendant Blackmon to extract Plaintiff from his cell to bring him to medical
because he was having chest pains. Id. Because Plaintiff does not state a claim

against Defendants Wise or Davis, they are entitled to qualified immunity.
However, Plaintiff alleges Defendant Blackmon entered his cell and
assaulted him so badly that Blackmon broke his arm in two places—all while
he was having a heart attack. Id. The Eighth Amendment “prohibits the

unnecessary and wanton infliction of pain, or the infliction of pain totally
without penological justification.” Ort v. White, 813 F.2d 318, 321 (11th Cir.
1987). Plaintiff alleges Defendant Blackmon assaulted him for no reason. As
such, Plaintiff states an Eighth Amendment violation, and Defendant
Blackmon is not entitled to qualified immunity at this juncture. See Skrtich v.

Thornton, 280 F.3d 1295, 1301 (11th Cir. 2002) (“In this Circuit, a defense of
qualified immunity is not available in cases alleging excessive force in violation
of the Eighth Amendment, because the use of force ‘maliciously and sadistically
to cause harm’ is clearly established to be a violation of the Constitution.”).

Plaintiff does not use the terms “maliciously” or “sadistically” in
describing Defendant Blackmon’s conduct, but magic words are not required
to state a plausible claim for relief. Notably, Plaintiff does not allege he was
acting out or disobeying orders, which may have prompted Defendant

Blackmon to use some force against him. Cf. Whitley v. Albers, 475 U.S. 312,
320 (1986) (noting officers are justified in using some force when necessary “to
maintain or restore discipline”). Liberally construing Plaintiff’s allegations, as
this Court must do, the Court finds Plaintiff alleges facts that, accepted as true,

permit the reasonable inference Defendant Blackmon violated his
constitutional rights. Thus, the claim may proceed.
Accordingly, it is
ORDERED:

1. Defendants Blackmon and Davis’s motion to dismiss (Doc. 48) is
GRANTED in part and DENIED in part. The motion is GRANTED to the
extent Defendant Davis is entitled to qualified immunity for Plaintiff’s failure
to state a plausible claim against Davis; Plaintiffs official-capacity claims are
dismissed; and Plaintiffs requests for injunctive relief are dismissed. The
motion is DENIED to the extent Plaintiff's excessive force claim against
Defendant Blackmon survives.
2. Defendant Wise’s motion to dismiss (Doc. 57) is GRANTED.
3. The Clerk is directed to terminate Defendants Davis and Wise as
parties to this action.
4, Defendant Blackmon must answer the amended complaint within
twenty days of the date of this Order. The Court will thereafter set a
discovery period and other deadlines.
5. Within fifteen days after the close of discovery, Plaintiff must
provide Defendant Nurse Mathew’s full name or other identifying information
to enable the United States Marshals Service to serve Defendant Mathews. If
Plaintiff is unable to identify Defendant Mathews for service by this deadline,
the Court will dismiss Defendant Mathews from this action.
DONE AND ORDERED at Jacksonville, Florida, this 30th day of
March, 2022.

Zi NO -
KM) Armas

United States District Judge

20

Jax-6 3/30
c: Reco Valarie Cauthen
Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10109903. Public record. Not legal advice.