# Green v. Zuelke

> District Court, M.D. Florida · April 21, 2022

URL: https://www.frixlaw.com/law-library/cases/10110021

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** April 21, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

ANTONIO L. GREEN,

Plaintiff,
v.
Case No. 3:20-cv-1204-MMH-MCR
J. ZUELKE, et al.,

Defendants.

ORDER
I. Status
Plaintiff Antonio L. Green, an inmate of the Florida penal system,
initiated this action on September 30, 2020, by filing a pro se Verified
Complaint for Money Damages and Declaratory Relief (Complaint; Doc. 1) with
exhibits (Docs. 1-1 through 1-7).1 In the Complaint, Green asserts claims
pursuant to 42 U.S.C. § 1983 (related to a September 17, 2019 incident
involving the use of force at New River Correctional Institution (NRCI))
against Defendants Sergeant J. Zuelke, Captain M.J. Strong, Sergeant J.

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.
Strickland, and Officer Barnes.2 As relief, Green requests compensatory and
punitive damages as well as injunctive and declaratory relief.

This matter is before the Court on Defendants’ Motion for Summary
Judgment (Motion; Doc. 40). They submitted exhibits in support of the Motion.
See Docs. 40-1 through 40-9; 53-1; S-48; S-56. The Court advised Green 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.
6); Summary Judgment Notice (Doc. 42). Green filed a response in opposition

to the Motion. See Brief in Opposition to Defendants’ Summary Judgment
Motion (Response; Doc. 50); Declaration in Opposition to Defendants’ Motion
for Summary Judgment (Green Decl.; Doc. 51); Statement of Disputed Factual
Issues (Green Statement; Doc. 52). The Motion is ripe for review.

II. Plaintiff’s Allegations3
As count one, Green asserts that Defendants violated his Eighth
Amendment right to be free from cruel and unusual punishment when Zuelke

2 The Court dismissed Green’s claims against Defendant Dye. See Order (Doc.
38).
3 The recited facts are drawn from the Complaint.

2
used excessive force against Green as he was lying face down on the floor with
his hands restrained behind his back. Complaint at 11. As count two, he

contends that Strong, Strickland, and Barnes failed to intervene to stop
Zuelke’s excessive use of force. Id. As to the specific underlying facts, Green
alleges that Florida Department of Corrections (FDOC) staff assigned him to
work in food service at NRCI. Id. at 3. According to Green, on September 17,

2019, Zuelke and Barnes approached the chow hall table where Green (seated
and talking with two other inmates) was eating his evening meal and “ordered
[him] to cuff up.” Id. at 4. Green states that he stood and permitted Zuelke to
handcuff him. Id. He asserts that Zuelke escorted him towards the exit door,

as Green tried to speak with Officer Dye. Id.
According to Green, Zuelke “intentionally push[ed]/shove[d] [him]
causing him to fall to the floor while in handcuffs.” Id. He states that Zuelke
put his right knee in Green’s back “for no apparent reason” and applied “all of

his body weight” under Green’s right shoulder. Id. Green avers that he
screamed “in pain” and yelled for help, as Barnes and Dye watched from three
to six feet away. Id. at 5. Green believes that Zuelke’s use of excessive force
lasted five to ten minutes. Id. He asserts that Strong and Strickland responded

to the incident “moments later.” Id. He states that Zuelke told him to “shut the

3
f-ck up and stop yelling muthf-cker.” Id. Green alleges that he “continued
yelling and screaming.” Id. at 6.

Green maintains that when an unknown officer entered the dining hall
and directed Green to stand, Green told him that he needed help standing. Id.
According to Green, when the unknown officer instructed Zuelke to help him
lift Green to a standing position, Zuelke “finally” moved off of Green’s back. Id.

He avers that Strong directed Strickland and the unknown officer to escort
Green to the medical clinic. Id. Green states that he tried to walk to the medical
clinic until his back pain was so “unbearable” that he sat down on the ground
and asked for a wheelchair. Id. He alleges that another officer arrived on the

scene with a handheld camera. Id. According to Green, Strong was “very upset
and angry” when he noticed Green seated on the ground, and told Strickland
and the unknown officer that Green “don’t run sh-t, drag his f-ck ass to
medical.” Id. at 7. He asserts that Strickland and the other officer forcefully

picked him up off the ground by his arm, causing more pain to his right
shoulder, and escorted him to the medical clinic. Id.
Green states that he affirmed to an unknown white female nurse that
force was used against him and told her about the “extreme pain” in his back

and shoulder. Id. According to Green, Strong whispered in the nurse’s ear
twice, and she responded, “I’ll do whatever you want me to do,” and “he’s good
4
to go.” Id. at 8. He asserts that the nurse did not examine his back or right
shoulder. Id. Green maintains that he declared a psychological emergency and

threatened to hang himself upon “first chance.” Id. He states that Strickland
and the unknown officer took him to a confinement wing holding cell. Id.
Green asserts that, several hours later, he saw Nurse Sandidge
regarding the self-declared psychological emergency. Id. According to Green,

Sandidge examined Green’s back and right shoulder, told Green that he did
not have any Ibuprofen to give him, and advised Green to submit a sick-call
request “to see a doctor and receive pain medication.” Id. at 9. He also avers
that Sandidge advised Captain Hilliard that Green needed to be placed in a

self-harm observation status (SHOS). Id. He asserts that the FDOC
transferred him to an SHOS cell at Florida State Prison where the next day
(September 18th) he talked about his suicidal thoughts with a psychologist. Id.
at 10. He states that the FDOC released him from SHOS and returned him to

NRCI that same day. Id. Green maintains that Nurse Stephens saw him in the
sick-call clinic on September 20th and gave him Ibuprofen and a pain-relieving
muscle-rub cream. Id. He maintains that Stephens did not refer him to a doctor
and told Green that he did not need x-rays. Id.

5
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
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

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.
6
Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A] mere scintilla of evidence in support
of the non-moving party’s position is insufficient to defeat a motion for

summary judgment.” Kesinger ex rel. Estate of Kesinger v. Herrington, 381
F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (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)
7
(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
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 the Court should grant
summary judgment in their favor as to Green’s Eighth Amendment claims
against them. See generally Motion. They argue that the video evidence
supports Defendants’ position that Zuelke used minimal force to obtain Green’s

compliance with verbal orders, and that Barnes, Strong, and Strickland
“cannot be liable under § 1983 for failure to intervene in [a] non-violation.” Id.
at 6-10. They also assert that they are entitled to qualified immunity. Id. at 14-
15. Additionally, Defendants contend that Green is not entitled to

compensatory damages under 42 U.S.C. § 1997e(e) because he has not alleged
any physical injury resulting from Defendants’ acts and/or omissions. Id. at 10.
And, they argue that Green is not entitled to injunctive and declaratory relief.
Id. at 11-14. In his Response, Green maintains that there remain genuine

issues of material facts that preclude summary judgment in Defendants’ favor
as to his Eighth Amendment claims against them. See Response at 6-23.
8
V. Applicable Law
A. Excessive Use of Force and Failure to Intervene

In Sconiers v. Lockhart, 946 F.3d 1256, 1265 (11th Cir. 2020), the
Eleventh Circuit reviewed “the principles applicable to Eighth Amendment
excessive-force” claims. In doing so, the Court instructed:
The Eighth Amendment, among other things,
prohibits “cruel and unusual punishments.” U.S.
Const. amend. VIII. As the Supreme Court has
explained, “the unnecessary and wanton infliction of
pain” qualifies under the Eighth Amendment as
proscribed “cruel and unusual punishment.” Hudson
v. McMillian, 503 U.S. 1, 5, 112 S. Ct. 995, 117 L.Ed.2d
156 (1992). Nevertheless, the Supreme Court has
instructed that what rises to the level of an
“unnecessary and wanton infliction of pain” differs
based on the type of Eighth Amendment violation
alleged. Id.

Since [the plaintiff] asserts excessive-force . . .
claims, “the core judicial inquiry” requires [the Court]
to consider “whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.” Wilkins, 559 U.S. at
37, 130 S.Ct. 1175 (citation and quotation marks
omitted).[ 5 ] This standard requires a prisoner to
establish two elements – one subjective and one
objective: the official must have both “acted with a
sufficiently culpable state of mind” (the subjective
element), and the conduct must have been “objectively
harmful enough to establish a constitutional
violation.” Hudson, 503 U.S. at 8, 112 S.Ct. 995
(cleaned up).

5 Wilkins v. Gaddy, 559 U.S. 34 (2010) (per curiam).
9
With respect to the subjective element, “to have
a valid claim on the merits of excessive force in
violation of [the Eighth Amendment], the excessive
force must have been sadistically and maliciously
applied for the very purpose of causing harm.”
Johnson v. Breeden, 280 F.3d 1308, 1321 (11th Cir.
2002); see also Thomas v. Bryant, 614 F.3d 1288, 1304
(11th Cir. 2010).

As for the objective component of an excessive-
force violation, it focuses on whether the official’s
actions were “harmful enough,” Hudson, 503 U.S. at 8,
112 S.Ct. 995, or “sufficiently serious,” Wilson v.
Seiter, 501 U.S. 294, 298, 111 S. Ct. 2321, 115 L.Ed.2d
271 (1991), to violate the Constitution. “Not every
malevolent touch by a prison guard gives rise to a
federal cause of action.” Wilkins, 559 U.S. at 37, 130 S.
Ct. 1175. “The Eighth Amendment’s prohibition of
‘cruel and unusual’ punishments necessarily excludes
from constitutional recognition de minimis uses of
physical force, provided that the use of force is not of a
sort repugnant to the conscience of mankind.” Id. at
37-38, 130 S. Ct. 1175. Instead, the Eighth
Amendment prohibits force that offends
“contemporary standards of decency,” regardless of
whether “significant injury is evident,” though the
extent of injury may shed light on the amount of force
applied or “whether the use of force could plausibly
have been thought necessary.” Wilkins, 559 U.S. at 37,
130 S.Ct. 1175 (citation and internal quotation marks
omitted).

Id. at 1265-66; see also McKinney v. Sheriff, 520 F. App’x 903, 905 (11th Cir.
2013) (per curiam). In determining whether an officer’s use of force was applied
maliciously and sadistically for the purpose of causing harm, courts consider
five distinct factors:
10
(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) (quoting Whitley v.
Albers, 475 U.S. 312, 321 (1986); Hudson, 503 U.S. at 7). 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. Sparks, 510 F.3d
1307, 1311 (11th Cir. 2007) (quoting Bennett v. Parker, 898 F.2d 1530, 1533
(11th Cir. 1990)).
Notably, a lack of serious injury, while not dispositive, is relevant to the
inquiry. Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) (per curiam); Smith v. Sec’y,
Dep’t of Corr., 524 F. App’x 511, 513 (11th Cir. 2013) (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, 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

6 Hudson, 503 U.S. at 7.
11
state a valid excessive force claim. Id. at 9 (quoting
Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.
1973)).[7]

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. The Eleventh Circuit has stated:
A plaintiff who suffers only de minimis injury does not
necessarily lack a claim for excessive force under §
1983. Stephens,[8] 852 F.3d at 1328 n.33; Saunders v.
Duke, 766 F.3d 1262, 1270 (11th Cir. 2014). However,
the resulting injuries can be evidence of the kind or
degree of force that was used by the officer. See
Crocker v. Beatty, 995 F.3d 1232, 1251 (11th Cir.
2021).

Charles v. Johnson, 18 F.4th 686, 700 (11th Cir. 2021).

As a separate matter, “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); Alston v. Swarbrick, 954 F.3d 1312,
1321 (11th Cir. 2020); Ensley v. Soper, 142 F.3d 1402, 1407-08 (11th Cir. 1998).
This liability, however, only arises when the officer is in a position to intervene

7 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.”).
8 Stephens v. DeGiovanni, 852 F.3d 1298 (11th Cir. 2017).
12
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 . . . .”).

B. Qualified Immunity

As to the doctrine of qualified immunity, the Eleventh Circuit has
explained:
Government officials acting in their
discretionary duties are entitled to qualified immunity
from individual capacity suits. Lee v. Ferraro, 284
F.3d 1188, 1193-94 (11th Cir. 2002). Qualified
immunity protects them from suit unless they violate
“clearly established statutory or constitutional rights
of which a reasonable person would have known.”
Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153
L.Ed.2d 666 (2002) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).

“To establish the defense of qualified immunity,
the burden is first on the defendant to establish that
the allegedly unconstitutional conduct occurred while
he was acting within the scope of his discretionary
authority.” Harbert Int’l, Inc. v. James, 157 F.3d 1271,
1281 (11th Cir. 1998). “Once the defendant establishes
that he was acting within his discretionary authority,
the burden shifts to the plaintiff to show that qualified
immunity is not appropriate.” Vinyard v. Wilson, 311
13
F.3d 1340, 1346 (11th Cir. 2002) (quoting Lee, 284
F.3d at 1194).

Whether governmental officials are entitled to
qualified immunity at summary judgment entails a
two-part inquiry. Dukes v. Deaton, 852 F.3d 1035,
1042 (11th Cir. 2017). “[O]fficers are entitled to
qualified immunity under § 1983 unless (1) they
violated a federal statutory or constitutional right, and
(2) the unlawfulness of their conduct was ‘clearly
established at the time.’” District of Columbia v.
Wesby, – U.S. –, 138 S. Ct. 577, 589, 199 L.Ed.2d 453
(2018) (quoting Reichle v. Howards, 566 U.S. 658, 664,
132 S.Ct. 2088, 182 L.Ed.2d 985 (2012)). “‘Clearly
established’ means that, at the time of the officer’s
conduct, the law was ‘sufficiently clear that every
reasonable officer would understand that what he is
doing’ is unlawful.” Id. (quoting Ashcroft v. al-Kidd,
563 U.S. 731, 741, 131 S. Ct. 2074, 179 L.Ed.2d 1149
(2011)). “This is not to say that an official action is
protected by qualified immunity unless the very action
in question has previously been held unlawful, ... but
it is to say that in the light of pre-existing law the
unlawfulness must be apparent.” Hope, 536 U.S. at
739, 122 S.Ct. 2508 (quoting Anderson v. Creighton,
483 U.S. 635, 640, 107 S. Ct. 3034, 97 L.Ed.2d 523
(1987)). The essential question here is whether the
officer had “fair warning” that his actions were
unconstitutional. See Willingham v. Loughnan, 321
F.3d 1299, 1301 (11th Cir. 2003).

Charles, 18 F.4th at 698; see also 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
14
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).

VI. Analysis9

A. Eighth Amendment Claims

Green contends that Defendants violated his Eighth Amendment right
to be free from cruel and unusual punishment. He asserts that Zuelke used
excessive force against him when Zuelke escorted Green towards the chow hall
exit door and pinned him to the floor on September 17, 2019. He also states
that Defendants Strong, Strickland, and Barnes failed to intervene to stop
Zuelke’s use of excessive force. Defendants contend that they are entitled to
summary judgment as to Green’s Eighth Amendment claims against them. In
support of their position, Defendants submitted exhibits, including the
Declaration of Joshua Zuelke (Zuelke Decl.), Doc. 40-1; the Declaration of
Rufus Barnes (Barnes Decl.), Doc. 40-2; the Declaration of Joseph Strickland
(Strickland Decl.), Doc. 40-3; the Declaration of Maurice Strong (Strong Decl.),

9 For purposes of summary judgment, the Court views the evidence and
all reasonable inferences therefrom in the light most favorable to Green. Thus,
the facts described in the Court’s analysis may differ from those that
ultimately can be proved.
15
Doc. 40-4; the Report of Force Used, Doc. 40-5; the MINS10 Report, Doc. 40-6;
Green’s medical records, Doc. 40-9; and the Deposition of Antonio Green (P.

Depo.), Doc. 53-1. With the Court’s permission, see Order (Doc. 44), Defendants
also submitted two digital video discs under seal. See Docs. S-48, handheld
(HH) video; S-56, fixed wing (FW) video.
In his Declaration, Defendant Zuelke describes his role in the events of

September 17, 2019. He states in pertinent part:
At approximately 6:37 p.m., on September 17,
2019, while assigned as C-Dormitory Housing
Sergeant, I was supervising the evening meal in food
service. While attempting to escort Inmate Green to
medical for a pre-confinement physical, Inmate Green
suddenly threw himself to the floor of the dining hall
declaring a psychological emergency[,] refusing all
orders to cease his actions and[] to [] stand to his feet.
To prevent self-injury and overcome Inmate Green’s
physical resistance to lawful commands, physical force
became necessary. I utilized my body weight and
pinned Inmate Green’s upper torso to the ground while
giving him verbal orders to cease his actions and stand
to his feet so that he could be escorted to medical for
assessment. Inmate Green complied with [the] order
and no further force was utilized by me.

Inmate Green was escorted to medical by
Sergeant Tracy Borra and Sergeant Joseph Strickland
who utilized an arm lock, due to Inmate Green
repeatedly dropping his body weight.

10 The abbreviation or acronym “MINS” is not defined in the documents
provided to the Court. Apparently, these reports are generated for the use of
corrections officials and the Inspector General’s Office after a use of force upon
an inmate or a battery upon a correctional officer by an inmate.
16
Zuelke Decl. at 1 (enumeration and selected spacing omitted). In his
Declaration, Defendant Barnes, who was also supervising inmates, describes
what he saw in the chow hall that night, stating in pertinent part:

At approximately 6:37 p.m., on September 17,
2019, while assigned as B Dormitory Housing
Sergeant[,] I was supervising the evening meal in Food
Service. During this time, Sergeant Zuelke was
attempting to escort Inmate Green to medical for a
pre-confinement physical. Inmate Green then threw
himself on the floor of the dining hall and declared a
psychological emergency, refusing all orders to stand
to his feet and walk. Force then became necessary to
prevent self-injury and overcome Inmate Green’s
physical resistance to lawful commands. I then
witnessed Sergeant Zuelke use his body weight to pin
Inmate Green’s upper torso to the floor. I then
witnessed Sergeant Strickland and Sergeant Borra
use a shoulder lock technique to escort Inmate Green
to medical and confinement, due to Inmate Green
repeatedly dropping his weight as he walked. Inmate
Green then became compliant[,] and all force ceased.

Barnes Decl. at 1 (enumeration omitted). Next, Defendants Strickland and
Strong explain their roles when they responded to the incident. In a
Declaration, Strickland states in pertinent part:
At approximately 6:37 p.m., on September 17,
2019, I was supervising the medication window and
responded to an ICS [(Incident Command System)]
incident in food service. Upon arrival to the dining
hall, I witnessed Sergeant Zuelke utilize his body
weight to pin Inmate Green’s upper torso to the ground
to prevent harm. I utilized a shoulder lock technique
to assist Sergeant Borra in escorting Inmate Green to
17
medical due to Inmate Green’s repeatedly dropping his
weight as he walked. Sergeant Borra and I then
escorted Inmate Green to G-dorm and secured Inmate
Green in the confinement cell.

Strickland Decl. at 1 (enumeration omitted). In a Declaration, Defendant
Strong provides a similar account of what he saw when he arrived at the chow
hall. Strong Decl. at 1.
To defeat the Motion, Green is required to present evidence to show that
there is a genuine issue for trial. In opposing Defendants’ Motion, Green
asserts that Defendants are not entitled to summary judgment. He submitted
the Declarations of two inmates who allegedly saw the incident, Doc. 51-1, as
well as his own Declaration, in support of his contentions. He also submitted
his handwritten statement, dated September 19, 2019, Doc. 51-3; the

Diagrams of Injury, dated September 17, 2019, Doc. 51-4; the Back Pain
Protocol, dated September 23, 2019, Doc. 51-5; emergency room records, dated
September 17, 2019, Doc. 51-6; Health Information Transfer/Arrival
Summary, dated September 17, 2019, Doc. 51-7; the Report of Force Used, Doc.

51-8; and “FDC Violate Their Fiduciary Duties,” Doc. 51-9. Green maintains
that Defendants’ assertions that Zuelke did not use excessive force against
Green “is not true by far, and can be verified by the chow hall food service
video” because “camera[]s don’t lie.” Green Decl. at 2.

18
In a Declaration, Green provides a factual account that is similar to the
allegations in his Complaint. He states in pertinent part:

Defendant Zuelke can clearly be seen on the din[]ing
hall video surveillance intentionally using excessive
force against the plaintiff when he pushed/shoved the
plaintiff while he was in double locked handcuffs
behind his back as the plaintiff was attempting to
speak with officer S. Dye who was assigned as food
service security on September 17, 2019, to better
understand why he was being taken to confinement
and for what reason, causing the plaintiff to lose his
footing while falling face down on the din[]ing hall
floor resulting in both physical injuries as well as
mental and emotional distress as evidence[d] in [his
exhibits].

Id. at 4. He states that Zuelke used “his 250 plus pound body weight to
physically pin down the 172 pound plaintiff’s upper torso to the ground.” Id. at
5. Green asserts that he yelled, screamed, and declared a psychological
emergency because he had “difficulties breathing” and feared “being
murder[ed] alive. Id. at 5, 9. According to Green, Defendants Strong, Barnes,
and Strickland “all watched silently with an opportunity to intervene . . . but
failed to do so.” Id. at 9. Green provided a similar account in his September 19,
2019 witness statement. Doc. 51-3. Additionally, at his deposition, Green
maintained that Zuelke used excessive force when Green had complied with
his directives, and that Strong, Barnes, and Strickland failed to intervene to
stop Zuelke’s use of excessive force. See generally P. Depo. Also, in support of
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Green’s version of the facts, Inmates Santos McGill (FDOC #W01203) and Leon
Chappell (FDOC #593084), who allegedly were seated with Green when Zuelke

approached the table to handcuff Green, provided factual accounts similar to
each other and Green. Doc. 51-1.
The parties agree that the fixed wing video (no audio) evidence captures
the September 17, 2019 use of force. They generally cite to the fixed wing video

footage and argue that the video evidence supports their own factual accounts
as to how the events unfolded. See Motion at 7-9; Green’s Decl. Notably, the
fixed wing camera angle pointed directly towards the chow hall’s entry/exit
door, displaying approximately thirty four-seat tables while cutting off from its

view some tables located at a greater distance from the door. See FW video.
The video shows inmates finishing their dinners, disposing of their trash, and
exiting the dining hall. Id. The first several minutes of the video are
uneventful, as the number of inmates slowly dwindles leading up to the

handcuffing and use of force at issue. Id. The video evidence shows that officers
approached the far end of the chow hall towards the table where Green and
other inmates sat. Id. Because the video surveillance camera pointed towards
the door, the area where Zuelke handcuffed Green is off camera. Id.

Nevertheless, while the handcuffing captured the attention of bystanders who
remained in the chow hall, id., it is undisputed that Green submitted to
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handcuffing without physical resistance, P. Depo. at 12-13. The handcuffing
event is not at issue.

The video evidence captures Zuelke as he escorted Green towards the
exit door for a pre-confinement physical. Id. Zuelke held the right arm of Green,
who is handcuffed behind his back, as Barnes followed. Id. During the escort,
Zuelke guided Green and dodged tables along the way, as they headed towards

the door. Id. The video evidence displays that Zuelke chose a path that avoided
other individuals, id. including Officer Dye, who was the officer in charge of
the chow hall that night, P. Depo. at 19. The video evidence also shows that
Green used his feet to brace himself when he passed Officer Dye, FW video,

because he wanted to ask her why they were escorting him to confinement, P.
Depo. at 18. The video captures the cross-over positioning of Green’s feet and
upward tilt of his head in Dye’s direction, FW video, evidencing Green’s
attempt to interact with Dye, which he admits. In his deposition, Green

explained what transpired:
They used hand restraints and they escorted me
out the chow hall. He [was] pulling me. And I got on
these Crocs[,] and I lose my footing and I fall on the
floor.

. . . .

I’m saying as I’m walking -- the dining hall area
is not tile like this, it’s some other tile, it’s always
slippery, always wet, regardless of what kind of shoes
21
you wear, regardless. You have to take your time to
walk inside the chow hall. You can’t be trying to walk
fast or cut – dragging or pulling, you got to take your
time. You got Crocs -- Crocs have no kind of grip
whatsoever.

So[,] as I’m trying to walk -- but I’m asking the
officer who is assigned to the chow hall [(Officer Dye)],
why am I being put in confinement.

. . . .

As I’m walking out the chow hall, I’m talking to Dye.
So[,] I guess he don’t want me to talk to her so he’s
trying to hurry up and get me out of there. That’s my
take on it. I’m walking -- I’m trying to take my time,
taking baby steps. But if you being pulled and you ain’t
got no control of your balance, you ain’t got no choice
but to fall. You can’t stop the fall, you can’t break the
fall. Nothing -- I caught the edge of the table and I hit
my head on something, on the edge of the bench.
Luckily I caught that part.

P. Depo. at 13, 18, 48-49. The video shows Green’s fall. FW video. It also shows
that Zuelke did not push or shove Green onto the floor. Id. Instead, as Green
testified in his deposition, Zuelke may have hurried Green past Dye to shorten
their verbal encounter, and Green may have lost his footing. P. Depo. at 48-49.
But regardless of whether Green fell to the ground of his own volition or
because he tripped, the video shows that he fell and was not pushed or shoved
to the ground by Zuelke. Indeed, the video shows that as Green fell, Zuelke,
who was upright and holding onto Green’s upper right arm, was pulled
downward by Green. FW video at 18:37:59.
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It is undisputed that Zuelke used his body weight and pinned Green’s
upper torso to the ground, as he directed Green to stand to his feet for an escort

to the medical clinic. P. Depo. at 13-14; Zuelke Decl.; Barnes Decl.; Strickland
Decl.; Strong Decl. The video evidence captures Green on the ground and
Zuelke on top of him. FW video. There is no audio, however, Green admits that
he screamed, yelled, and declared a psychological emergency while he

remained on the floor. Green Decl. at 5, 9. The rapid circular motion of the
ceiling-fan blades and an officer briefly block the camera’s view. Nevertheless,
the parties agree that Zuelke pinned Green to the floor. The video evidence
shows that Green was on the floor for about four minutes. FW video. Zuelke

was not on top of Green the entire time, but instead knelt beside Green for
most of the time, as he waited for other officers to help lift Green to his feet.
Id.
The parties agree that Defendant Strickland and Officer Borra escorted

Green to the medical clinic and the holding cell in the confinement wing.11
Green Decl. at 11, 13; Strickland Decl.; Strong Decl.; HH video (with audio).12
The video evidence shows that Strickland and Borra first escorted Green to the

11 The video shows Borra’s name stitched on his brown cap, and
Strickland’s name printed on his uniform shirt. HH video.
12 Defendant Strong announced that the camera malfunctioned when
they were leaving the chow hall. HH video.
23
medical clinic where the female clinician checked his vital signs and lifted his
shirt to examine his back. HH video. Green remained in the clinic for

approximately five minutes (6:57 p.m. arrival and 7:02 p.m. departure). Id.
During Green’s brief stay in the clinic and on the way to the G dormitory
holding cell, he proclaimed that the camera shows what happened, expressed
suicidal thoughts, and adamantly voiced his version of the facts. Id.

According to Green, he suffered a contusion on the right shoulder blade,
lower back pain, and wrist swelling and redness. P. Depo. at 50. The MINS
report states that “Green received two post use of force physicals with no
injuries noted on the first[,] and a contusion to the right posterior shoulder

blade was noted on the second [physical].” Doc. 40-6 at 2 (capitalization
omitted). The medical records submitted by both parties show that Nurse T.
Muriell examined Green in the medical clinic at 6:57 p.m. and recorded “no
visible injuries.” Docs. 40-9 at 25; 51-4 at 3; see also Doc. 40-5 at 6. According

to the emergency room record, “no treatment [was] indicated,” and the nurse
advised Green that he could request a sick-call visit if the back pain “persists
or worsens.” Doc. 40-9 at 22. After Strickland and Borra used a shoulder-lock
technique to escort Green to confinement, see Strickland Decl.; Strong Decl.,

Nurse Fox noted a contusion to Green’s right posterior shoulder blade during
a medical assessment that same evening at 8:30 p.m. Docs. 40-9 at 23-24; 51-4
24
at 2; see also Doc. 40-5 at 6. According to Green’s medical records, the FDOC
placed Green in SHOS with an assigned medical grade 1 (routine care) and

mental health grade 3 (moderate impairment in adaptive functioning due to a
diagnosed mental disorder),13 and Celexa and Vistaril for depression and
anxiety. Doc. 40-9 at 11-13; see Complaint at 9. On September 20, 2019, Green
requested a sick-call appointment for his back pain, and asked for x-rays and

pain medication. Docs. 40-9 at 8; 51-5 at 2. According to Green, Nurse Stephens
saw him in the sick-call clinic on September 20th and gave him Ibuprofen and
a pain-relieving muscle-rub cream, and told him he did not need x-rays.
Complaint at 9.

The video evidence is reliable and provides a chronology of how the
incident unfolded. Undoubtedly, there was a rapidly-evolving physical incident
involving Zuelke and Green. What began as a routine escort for a pre-
confinement medical assessment swiftly morphed into an escalated event that

required the assistance of personnel to address Green’s psychological needs.
The video does not show Zuelke using excessive force upon Green. Nor, does it
show any unjustified actions. Rather, it depicts Green falling to the floor, and
Zuelke pinning him to the ground, as he waited for other officers to arrive to

13 See http://dc.state.fl.us/business/Health/bulletin.html, Health Services
Bulletin, 15.03.13, “Assignment of Health Classification Grades to Inmates.”

25
help lift Green to his feet for an escort. Green maintains that he declared a
psychological emergency, and therefore, it was paramount that Zuelke and the

escorting officers take the necessary actions to prevent self-injury and
transport Green for psychological evaluation. The record shows that Green was
placed in SHOS that same night. Complaint at 9; Doc. 40-9 at 13.
Given the evidence submitted by Defendants, the Court finds they have

met their initial burden of showing, by reference to their Declarations, medical
records, and the video evidence, that appropriate and minimal force was used
against Green. Thus, Green is required to present evidence to show that there
is a genuine issue for trial; he has not done so. If this case were to proceed to

trial, Green would have only his testimony and inmates McGill and Chappell
to support his assertions. Nevertheless, Green acknowledges that the fixed
wing video recorded what transpired, and it shows that some force was
necessary to stabilize the situation and control an unruly inmate,14 and only

minimal force was used. Zuelke’s pinning of Green to the floor was the least
forceful way to gain control of the situation and advance the escort to the
medical clinic. Given the fact that the video evidence and the exhibits
submitted by Defendants support their description of the incident, the contrary

14 See P. Depo. at 62 (“I declared [a] psychological emergency.”); id. at 63
(“I’m yelling and screaming the whole time.”).
26
account presented by Green, McGill, and Chappell fails to create a genuine
issue for trial. Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing

parties tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for summary judgment.”).
The evidence reflects that, under the circumstances, the pinning of Green to

the floor was necessary, and only minimal force was used until other officers
arrived at the scene to take over the escort.
Notably, the minor injury serves as evidence that Zuelke did not use
excessive force.15 See Charles, 18 F.4th at 700 (“The injuries attributable to

[the officer]’s tackle were minor. The small scrapes, bumps, and bruises
suffered from the tackle are entirely consistent with a routine takedown.”). The
record simply does not support an inference of wantonness in the infliction of
pain. The parties agree that Zuelke pinned Green to the floor and the fixed

wing video evidence displays what transpired. The Court finds that summary
judgment in Defendant Zuelke’s favor is appropriate because no reasonable
jury could find that Zuelke violated Green’s Eighth Amendment right. Scott,

15 See Doc. 51-3 (describing the injury as a bruise); P. Depo. at 59 (stating
that the treatment was Ibuprofen, a muscle cream, and Tylenol).
27
550 U.S. at 380. As such, Defendants’ Motion is due to be granted as to Green’s
Eighth Amendment claim against Defendant Zuelke.

Additionally, Defendants Barnes, Strong, and Strickland assert that
they are entitled to summary judgment as to Green’s Eighth Amendment
failure-to-intervene claims against them. Motion at 9-10. They argue that
Zuelke’s force upon Green was neither excessive nor a violation of the

Constitution, and therefore they “cannot be held liable under § 1983 for failure
to intervene in that non-violation.” Id. at 10. The Court agrees. Because there
is no Eighth Amendment excessive-use-of-force violation as to Defendant
Zuelke, Defendants’ Motion is due to be granted as to Green’s Eighth

Amendment failure-to-intervene claims against Barnes, Strong, and
Strickland. See Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir. 2005) (“In order
for there to be a failure to intervene, it logically follows that there must exist
an underlying constitutional violation[.]”); Sanders v. City of Union Springs,

207 F. App’x 960, 966 (11th Cir. 2006) (“[G]iven that the plaintiffs are unable
to establish a constitutional violation, their claim for failure to intervene must
fail.”); Butler v. Sec’y, Fla. Dept. of Corr., No. 20-11097, 2021 WL 4279555, at
*4 n.4 (11th Cir. Sept. 21, 2021) (per curiam) (“Because the officers did not use

excessive force, [the plaintiff] also cannot maintain a failure-to-intervene claim
against [the defendant].”).
28
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 14-15. 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, Green 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. Upon review of the
record and the parties’ arguments as well as parsing the actions of each

Defendant, see FW video; HH video, the Court finds that Defendants are
entitled to qualified immunity from monetary damages in their individual
capacities as to Green’s Eighth Amendment claims against them.
C. Plaintiff’s Newly-Asserted Claims

In response to Defendants’ Motion, Green describes a “second excessive
use of force” by Defendant Strickland and Officer Borra when they escorted
29
him. Response at 9, 23; Green Decl. at 13, 19; Green Statement at 5, ¶ 16.
However, in his deposition, he reasserted that he holds Strickland liable

because he failed to intervene to stop Zuelke’s excessive use of force. P. Depo.
at 52-53. Green also stated that his classification officer tried to transfer him
to another institution due to the retaliation he experienced at NRCI. Id. at 56-
57. Insofar as Green asserts a retaliation claim against Defendants and/or

excessive-use-of-force claims against Defendant Strickland and Officer Borra
in his response to Defendants’ summary judgment motion, the Court
determines that raising new legal claims against Defendants and Officer Borra
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 Green is not

permitted to pursue his new claims against Defendants and Officer Borra in
this case.
In consideration of the foregoing, it is now
ORDERED:

1. Defendants’ Motion for Summary Judgment (Doc. 40) is GRANTED.

30
2. The Clerk shall enter judgment in favor of Defendants, terminate any
pending motions, and close the case.
DONE AND ORDERED at Jacksonville, Florida, this 21st day of April,
2022.

MARCIA MORALES HOWARD
United States District Judge

Jax-1 4/19
C:
Antonio L. Green, #981309
Counsel of Record

31

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10110021. Public record. Not legal advice.