“‘[A]n officer who is present at the scene and who fails to take reasonable steps to protect the victim of another officer’s use of excessive force, can be held liable for his nonfeasance.’” (quoting Velazquez v. City of Hialeah, 484 F.3d 1340, 1341 (11th Cir. 2007))
How later courts described this case
- “‘[A]n officer who is present at the scene and who fails to take reasonable steps to protect the victim of another officer’s use of excessive force, can be held liable for his nonfeasance.’” (quoting Velazquez v. City of Hialeah, 484 F.3d 1340, 1341 (11th Cir. 2007))
- “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)
- “Summary judgment is not a time for fact-finding; that task is reserved for trial.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ALIN CHRISTOPHER PROPHETE,
Plaintiff,
v. Case No. 3:20-cv-514-BJD-LLL
LT. STERLING PEUGH, et al.,
Defendants.
_______________________________
ORDER
I. Status
Plaintiff, an inmate in the Florida Department of Corrections (FDOC),1
is proceeding on a pro se Fourth Amended Civil Rights Complaint (Doc. 95;
FAC) against Lieutenant Sterling Peugh, Captain Joshua Davis, Sergeant
Quinton Williams, Officer Charles Bias, Sergeant Anthony Cruz, Sergeant
Willie Oliver, Captain John Hood, and Officer Lyndell Hampton. Plaintiff
raises claims of excessive force and failure to intervene, as well as a violation
of due process.
1 According to the FDOC’s website, Plaintiff is due to be released from custody on
June 2, 2023. See Corrections Offender Network, available at
http://dc.state.fl.us/offenderSearch/detail.aspx?Page=Detail&DCNumber=B07712&
TypeSearch=AI (last visited Jan. 11, 2023).
Before the Court is Defendants’ Motion for Summary Judgment (Doc.
160; Motion) with exhibits (Docs. 160-1 to 160-12; Def. Ex.). Defendants filed
under seal three video DVDs of the handheld camera footage in support of their
Motion (Doc. S-161; Def. Exs. I-1 to I-3), and as directed by the Court, an
additional video DVD showing the fixed wing video footage and a copy of the
FDOC’s Security Operations Procedure 602.004 (Doc. S-172). The Court
previously advised Plaintiff of the provisions of Federal Rule of Civil Procedure
56 and provided him with an opportunity to file a response. See Order (Doc. 7).
Plaintiff filed a Response (Doc. 170; Response); a Declaration (Doc. 171), which
includes some of Defendants’ discovery responses and documents relating to
the disciplinary report he received regarding this incident; and a Supplement
(Doc. 167) with an attached second Declaration and some of Defendants’
discovery responses and use of force incident reports. The Motion is ripe for
review.
II. Plaintiff’s Allegations in the FAC
Plaintiff contends that on January 30, 2019, while housed at Union
Correctional Institution, “Defendant Peugh sought and received authorization
to supervise the use of chemical agents on Plaintiff by claiming Plaintiff was
beating and yelling on his cell door.” FAC at 10. Peugh also received permission
“to use a forced cell extraction team.” Id. Plaintiff acknowledges that at 9:59
2
a.m., “Peugh issued [him] a final order to cease all disruptive behavior,” but
Plaintiff contends that he was not being disruptive. Id. at 5; see also id. at 10.
Instead, Plaintiff claims that “Peugh lied on Plaintiff in order to manipulate
use of force procedure to unjustifiably use force on Plaintiff.” Id. at 5. Due to
Plaintiff’s compliance, the handheld camera was turned off at 10:03 a.m., and
all staff exited the wing. Id.
Around 10:07 a.m., “without any justifiable reason, . . . Peugh returned
with the camera” and other staff members. Id. Peugh directed Officer Amit to
administer three one-second bursts of chemical agents into Plaintiff’s cell. Id.
At approximately 10:20 a.m., Peugh returned to Plaintiff’s cell and
“asked if [Plaintiff] wanted to submit to hand restraint and strip search
procedure[s].” Id. Plaintiff said he did, but “instead of opening the handcuffing
portal of Plaintiff’s cell to conduct a strip search, Defendant Peugh ordered
[Officer] Amit to administer [a second round of] three (3) one (1) second
burst[s]” of chemical agents into Plaintiff’s cell. Id. at 5-6.
At 10:30 a.m., Peugh returned to Plaintiff’s cell with other correctional
staff, including a five-man cell extraction team “comprised of Defendants
Hampton, Williams, Bias, Cruz, and Oliver.” Id. at 6. Plaintiff agreed to comply
with strip search and hand restraint procedures, “[h]owever, the use of force
camera was manipulated by the Defendants of the cell extraction team, under
3
the order and direction of Defendant Peugh, to make it appear as if [Plaintiff]
was not complying when, in fact, [he] was.” Id. Under Peugh’s supervision,
Officer Amit administered a third round of three one-second bursts of chemical
agents into Plaintiff’s cell at 10:32 a.m. Id.
Around 10:40 a.m., Peugh and the cell extraction team returned to
Plaintiff’s cell and “asked if [he] was going to submit to strip search and hand
restraint procedures,” to which Plaintiff “complied.” Id. Nevertheless, Plaintiff
alleges that Peugh ordered the use of force camera to be manipulated “to make
it appear as if [Plaintiff] was not complying when, in fact, [he] was.” Id. at 6-7.
Around 10:43 a.m., the cell extraction team, along with Defendant Peugh,
breached Plaintiff’s cell, and for the “the next two to three minutes[,] Plaintiff
was physically and sexually assaulted by Defendants Hampton, Bias,
Williams, Cruz, Oliver, and Peugh.” Id. at 7.
Plaintiff alleges that before his cell was breached, he placed his
“mattress on the floor directly in front of the cell door and [he] was laying face
down, while naked, when the cell was breached.” Id. According to Plaintiff,
Defendants continually yelled, “stop resisting,” even though he did not resist.
Id. He contends that during the entire time, he “was actually being physically
beaten with close[d] fist and handcuffs and sexually assaulted with the leg
irons.” Id. Plaintiff elaborates:
4
I was beaten in the head with the h[an]dcuffs
which were used as brass knuckles. My penis and
testicles were repeatedly struck with close[d] fist and
shackles. I was also hit in the head with closed fist. All
of this occurred while I was naked because I had
surrendered by boxers in compliance with strip search
procedure moments earlier. Also, while being p[i]nned
down on my stomach[,] my anus was penetrated
several times by the open end of the shackles before
the[y] were put on my ankles.
Id. at 7-8. He further claims that Peugh “grabbed [his] penis.” Id. at 9. He
asserts that during this entire time, Defendants Hood, Davis, and Oliver were
present but failed to intervene in the assault. Id. at 8-9.
Plaintiff asserts that on April 6, 2019, Peugh “threatened to kill
[Plaintiff] by manipulating D.O.C. procedure to get authorization to use force
on Plaintiff.” Id. at 9. According to Plaintiff, Peugh “specifically said the
extraction team would not allow Plaintiff to submit to hand restraint and strip
search procedure” and “they would beat [him] like they did last time, but this
time they would kill [him] and that someone would block the camera.” Id.
As a result of the force used on January 30, 2019, Plaintiff contends that
he had “hematomas in both eye areas,” “multiple lacerations to [his] head and
penis as well as pain in [his] testicles.” Id. at 11. He further asserts that his
“blood pressure was increased” and he continues to have headaches. Id. He
claims to have had blood in his urine, and “emotional pain and suffering and
5
severe mental anguish,” along with depression. Id. He seeks $26 million in
damages. Id.
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
6
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)2 (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. Parties’ Positions
First, Defendants argue that the video and documentary evidence show
their actions were necessary to re-establish order and maintain discipline after
providing Plaintiff with several warnings to cease his disruptive behavior. See
Motion at 6-13. Second, as to Plaintiff’s failure to intervene claims, Defendants
contend that the video evidence “does not reveal the need for anyone to
2 The Court does not rely on unpublished opinions as binding precedent; however,
they may be cited in this Order when the Court finds them persuasive on a particular
point. See McNamara v. GEICO, 30 F.4th 1055, 1060-61 (11th Cir. 2022); see
generally Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions are not
considered binding precedent, but they may be cited as persuasive authority.”).
7
intervene on Plaintiff’s behalf.” Id. at 14. Third, Defendants assert they are
entitled to qualified immunity. Id. at 15.3
In support of their position, Defendants submitted three DVDs (Def. Exs.
I-1 to I-3), which show the video recordings from the handheld cameras. The
first handheld video recording (Def. Ex. I-1) begins with an introduction from
Defendant Peugh on January 30, 2019 at 9:56 a.m. Peugh states that Plaintiff
has been creating a disturbance and refusing all orders to stop. Peugh advises
that he and other correctional staff counseled Plaintiff, but Plaintiff continued
to cause a disturbance. Peugh indicates that he received authorization from
the duty warden to use chemical agents on Plaintiff if he refused the final order
to comply. Peugh then approaches Plaintiff’s cell and issues the final order to
cease his behavior at 9:59 a.m. Peugh appears to leave the area, and Plaintiff
can be seen and heard saying, in substance, “Hey Sterling Peugh, You’re on my
time, not your time. I’m going to let this camera leave and then I’ll start
another disturbance. You’re on my time Sterling.” The camera remains focused
on Plaintiff’s cell door for several minutes, where Plaintiff can be seen most of
the time standing at the cell window. Peugh reapproaches Plaintiff’s cell,
announces the time as 10:03 a.m., and indicates that Plaintiff is now in
compliance, so no further action will be taken at this time. Peugh, however,
3 Defendants do not address Plaintiff’s due process claim.
8
advises Plaintiff that the final order will not be given again for the remainder
of the shift if Plaintiff resumes his disruptive behavior. Plaintiff verbalizes his
understanding and the camera stops recording.
The second handheld video recording (Def. Ex. I-2) begins with Peugh
advising that the time is 10:06 a.m. and while Plaintiff temporarily complied
with the orders to cease his disruptive behavior, Plaintiff was now causing a
disturbance again, so staff will administer chemical agents. Peugh and other
staff approach Plaintiff’s cell.4 Plaintiff is initially seen at the window but then
disappears from view, so the camera approaches the cell window to gain a view
of Plaintiff, who is seen covering up with a blanket. The cell door opens slightly
and three one-second bursts of chemical agents are administered into
Plaintiff’s cell at 10:07 a.m. The camera remains focused on Plaintiff’s cell,
where he occasionally can be seen walking back and forth. He approaches the
window and states, in substance, that he has two fixed wing cameras facing
his cell and he was not on the door. At one point, Plaintiff can be seen without
his white t-shirt on anymore, and he tells the camera, in effect, that they are
4 The fixed wing camera view (U Quad 2A) shows that prior to Peugh and correctional
staff approaching Plaintiff’s cell to administer chemical agents, another correctional
staff member approached Plaintiff’s cell at 10:05:55 a.m. and placed a chain around
the handle of Plaintiff’s cell and the handle on the cell next to him so that Plaintiff’s
cell door could not be opened fully. Peugh and other staff members approach
Plaintiff’s cell at approximately 10:06:35 a.m. to administer the chemical agents.
9
all on his time and this “s*it will never stop.” He also refers to himself as “the
undisputed heavy weight champion of the world” and appears to tell the
camera operator to take off his mask. Peugh approaches Plaintiff’s cell and
asks him if he will comply. Then Peugh advises the camera that Plaintiff stated
he would comply. However, Plaintiff then says, in effect, you know we’re going
to do this all day long, to which Peugh responds by telling Plaintiff to cease his
threats and disruptive behavior. Plaintiff then says something inaudible
followed by, in effect, I was going to get out.5 Peugh reapproaches Plaintiff’s
cell, stating to the camera that Plaintiff was continuing to be disorderly and
threatening staff. As such, a second round of three one-second bursts of
chemical agents was administered into Plaintiff’s cell at 10:20 a.m.
After several minutes, Peugh reapproaches Plaintiff’s cell and asks
Plaintiff if he will comply, to which Plaintiff responds that he will. Plaintiff is
told to stay on the door and keep his hands on the glass, which he does with
his middle fingers in the air. Peugh and the cell extraction team members
approach Plaintiff’s cell, and Plaintiff is advised to comply with strip search
procedures while he remains in his cell. Peugh advises that Plaintiff is not
being compliant, but Plaintiff yells multiple times that he is bending over. A
5 Plaintiff acknowledges that he was being verbally threatening and abusive. See
Response at 14 (“Peugh used Plaintiff’s mere verbal threats and verbal abuse as a
pretext to order the second application of chemical agents.”).
10
third round of three one-second bursts of chemical agents was administered
into Plaintiff’s cell at 10:32 a.m. Plaintiff repeatedly yells through his cell
window that he was compliant, bending over the whole time after they took his
boxers, and that correctional staff are manipulating the situation to run the
cell extraction team on him. At 10:42 a.m., Peugh announces that another
camera is on scene to film the cell extraction, and this video concluded.
The third handheld video recording (Def. Ex. I-3) begins at 10:39 a.m.,
with Peugh providing a historical statement of the situation. The five members
of the cell extraction team introduce themselves (Defendants Hampton,
Williams, Cruz, Bias, and Oliver) and advise of their responsibilities during
the extraction. Peugh and the team then approach Plaintiff’s cell, and Plaintiff
states he will comply. Plaintiff is directed to submit to a strip search properly.
Plaintiff is directed to comply multiple times, and he can be heard saying that
he is. The camera does not show Plaintiff inside of the cell.6 Peugh announces
that Plaintiff is refusing to comply and the cell extraction team prepares to
enter his cell.
At approximately the 4:11 minute mark on the video recording, the cell
door is opened, and the team and Peugh enter Plaintiff’s cell. The cameraman
6 Plaintiff was naked at this time. Over the course of this incident, the cameraman
was directed to not film any nudity.
11
moves toward the front of the cell door. The correctional staff members
repeatedly instruct Plaintiff to put his hands behind his back and to stop
resisting. It appears Plaintiff is on the ground with the correctional staff
members around him, but the camera view does not show what is actually
happening on the ground nor does it show at all times the correctional staff
members or Plaintiff. Around the 5:42 minute mark, Peugh announces that
restraints are on and they are waiting to be given Plaintiff’s boxer shorts so
they can put those on Plaintiff. Around the 7:05 minute mark, Plaintiff is
assisted to his feet, and around the 8:12 minute mark, he exits his cell. Plaintiff
is escorted to the shower cell for a decontamination shower and he alleges on
the video that he had a “PREA”7 on Peugh because Peugh touched his penis.
Peugh advises Plaintiff that it will be addressed. Plaintiff receives a
decontamination shower and then is escorted to medical for a post use of force
physical. He arrives at medical at 11:00 a.m. After being examined by medical
staff, Plaintiff is escorted back to his decontaminated cell. By 11:06 a.m.,
Plaintiff is back in his cell and the video is concluded.8
7 Prison Rape Elimination Act.
8 While the fixed wing video (Doc. S-172; camera view U Quad 2A 0959) provides an
overview of the wing and yelling can be heard after Peugh exits the wing the first
time around 10:03 a.m., it is impossible from this camera view to determine whether
Plaintiff was the one yelling or causing any other disturbance. The other fixed wing
camera facing Plaintiff’s cell (Doc. S-172; camera view U 2C) does not have audio and
12
Defendants also submitted Declarations. According to Defendant Peugh:
On[] January 30, 2019, Inmate Alin Prophete
#B07712, was creating a disturbance by beating on the
cell door and refusing all orders to cease actions.
Chemical agents were administered to bring him into
compliance. Inmate Prophete was again ordered to
submit to restraint procedures, to which he refused.
Authorization was received to conduct a cell
extraction. I supervised the cell extraction team.
Inmate Prophete was again ordered to submit to
restraint procedures, to which he refused. C.O.
Hampton, C.O. Williams, Sgt. Cruz and C.O. Bias
entered the cell and gained control of Inmate
Prophete’s extremities and restraints were applied. No
further force was utilized.
At no time did I witness anyone touch Inmate
Prophete for the purpose other than placing restraints
on him so that he could be removed from his cell.
Doc. 160-1 at 1 (paragraph enumeration omitted). Defendants Hampton (Doc.
160-4), Cruz (Doc. 160-5), Oliver (Doc. 160-6), Williams (Doc. 160-7), and Bias
(Doc. 160-8) submitted nearly identical Declarations to Defendant Peugh, with
the exception of adding that they did not touch Plaintiff other than for purposes
of applying restraints.
Defendant Davis avers:
At approximately 1007 hours, on Wednesday, January
30, 2019, while assigned as V-Dorm Administrative
Lieutenant, I was present on Quad 2 in U-Dorm at
which time I observed Officer Jennifer Amit
does not show Plaintiff causing a disturbance before the first application of chemical
agents.
13
administer one application of OC Chemical Agents
and one application of CS Chemical Agents into cell
U2112L, which houses Inmate PROPHETE, Alin – DC
#B07712. It should be noted that I was not present and
did not witness the second application of chemical
agents. I also witnessed Officer Lyndell Hampton,
Sergeant Quinton Williams, Sergeant Anthony Cruz,
and Officer Charles Bias enter . . . the cell and gain[]
control of Inmate Prophete’s extremities and
restraints were applied. No further force was utilized.
At no time did I witness anyone touch Inmate
Prophete for the purpose other than placing restraints
on him so that he could be removed from his cell.
Doc. 160-2 at 1 (paragraph enumeration omitted). Defendant Hood submitted
a similar Declaration to Defendant Davis. See Doc. 160-3.
Defendants also submitted a report of force used (Doc. 160-10), Plaintiff’s
post use of force emergency room record (Doc. 160-11), and Plaintiff’s relevant
grievances and the responses thereto (Doc. 16-12). The medical record
indicates that Plaintiff denied any pain, and he was not in any distress. Doc.
160-11. He had minimal swelling with a small bump on the outside top of his
left eye, and the left side of his head had a small bump/hematoma. Id. He was
advised to access sick call if needed. Id.
In Plaintiff’s Response, he contends that genuine issues of material fact
preclude entry of summary judgment for Defendants. To support his position,
Plaintiff submitted a Declaration (Doc. 171) that largely mirrors the
allegations in the FAC. He avers in pertinent part:
14
On January 30, 2019 at 9:59 A.M. defendant
Peugh issued Plaintiff a final order to cease all
disruptive behavior. To be clear, Plaintiff was not
being disruptive, but defendant Peugh lied on the
plaintiff in order to manipulate use of force procedure
to unjustifiably use force on the plaintiff. . . .
At approximately 10:07 A.M., without any
justifiable reason, Lt. Peugh returned with the camera
and [three] officers . . . . Then under the direct
supervision and order of defendant Peugh, Officer
Amit administered three (3) one (1) second burst of
O.C. Chemical agents . . . into plaintiff’s cell. . . . This
use of force was excessive and unnecessary because
Plaintiff had not created a disturbance warranting its
use.
At approximately 10:20 A.M. Defendant Peugh
returned with officers Amit and Meston and asked if
Plaintiff wanted to submit to hand restraint and strip
search procedure[.] I said yes. However, instead of
opening the handcuffing portal of plaintiff’s cell to
conduct a strip search, defendant ordered [Officer]
Amit to administer three (3) one (1) second burst of
C.S. chemical Agents . . . into Plaintiff’s cell . . . . This
use of force was excessive and unnecessary because
the Plaintiff had agreed to submit to hand restraint
and strip search procedure[s] but my handcuff portal
was not opened to allow me to do so. Moreover, I did
not create a disturbance that would have justified said
force.
At approximately 10:30 A.M. Defendant Peugh
returned with officers Meston and Amit as well as a
five-man cell extraction team which was comprised of
defendants Hampton, Williams, Bias, Cruz and Oliver.
Upon being asked, I agreed to comply with strip search
and hand restraint procedures. However the use of
force handheld camera was manipulated by
defendants of the cell extraction team, under the order
15
and direction of defendant Peugh, to make it appear as
if the Plaintiff was not complying when, in fact, he
was. . . . [A]t 10:32 A.M. under the direct supervision
and order of defendant Peugh, [Officer] Amit
administered three (3) one (1) second burst of C.S.
Chemical Agents . . . into Plaintiff’s cell. At this time
all staff, except camera operator Ellis, exited the
housing unit.
At approximately 10:40 AM Defendant Peugh
returned along [with] the rest of the defendants.
Defendants Hampton, Williams, Bias, Cruz and Oliver
assembled in front of my cell and asked if I was going
to submit to strip search and hand restraint
procedures. I complied with these orders but the use of
force camera was manipulated by the cell extraction
team defendants under the order and direction of
defendant Peugh to make it appear as if Plaintiff was
not complying. . . . Thus at approximately 10:43 A.M.
Plaintiff’s cell was bre[a]ched and the cell extraction
team, along with defendant Peugh[,] entered the cell.
Over the next two to three minutes the Plaintiff was
physically and sexually battered by defendants
Hampton, Bias, Williams, Cruz and Peugh.
Prior to the cell being breached, I had laid my
state issued mattress on the cell floor directly in front
of the cell door and I had laid down on it and was
naked when the cell door was breached. I offered no
resistance during the cell extraction but the audio of
the handheld camera was manipulated by the
defendants who yelled on audio “stop resisting” and
similar statements multiple times to drown out my
screams for help and the noise of the battery that was
occur[r]ing. The defendants also yelled these
statements to unlawfully attempt to create the
appearance of a need for force. During the entire time
defendants were screaming “stop resisting” the
Plaintiff was actually being physically beaten with
closed fists and handcuffs which were utilized as brass
16
knuckles and sexually battered by having the shackles
pen[e]trating his anus. Plaintiff’s penis and testicles
were repeatedly struck with closed fists and the
shackles. All of these actions occurred while I was
naked because I had surrendered my boxers in
compliance with strip search procedures moments
earlier. Also, while being pinned down on my stomach
Plaintiff’s anus was penetrated several times by the
open end of the shackles before they were put on his
feet by a member of the cell extraction team. . . .
Along with the physical and sexual battery that
occur[r]ed during the unnecessary and excessive cell
extraction the Plaintiff suffered hematomas and
lacerations to the back of his head and lacerations on
his penis as well as pain in his testicles. . . .
Defendants Hood and Davis did not physically
harm the Plaintiff [during] the incident but they are
liable because they failed to intervene on the Plaintiff’s
behalf and protect him from physical and sexual
battery that occur[r]ed during the cell extraction. Both
Defendants – Hood and Davis – were present at
Plaintiff’s cell door during the cell extraction, saw
what was occurring . . . and they acted as if nothing
was wrong and yelled “stop resisting” and similar
statements to create an appearance of a need for force
which was in fact excessive and unnecessary.
Defendant Oliver also is liable for failing to intervene
on the Plaintiff[’s] behalf. Defendant Oliver watched
the entire cell extraction while blocking the view of the
camera – for the duration of the physical and sexual
battery – and did nothing to help the Plaintiff.
Doc. 171 at 1-6 (paragraph enumeration omitted). Plaintiff goes on to state that
while he was being examined by medical staff, he attempted to report the
sexual battery and abuse, but Peugh threatened him “with death threats.” Id.
17
at 6. Plaintiff claims that Peugh admitted to grabbing Plaintiff’s penis and
ordering the extraction team members “to pen[e]trate the Plaintiff’s anus with
the shackles because the Plaintiff had been disrespectful” by voicing verbal
threats and abuse. Id. at 6-7. Plaintiff further avers that months later, on April
6, 2019, Peugh threatened Plaintiff by claiming he would do what he did “the
last time,” but this time they would kill Plaintiff. Id. at 7.
Additionally, Plaintiff argues in his Supplement (Doc. 167-1) that
Defendant Peugh manipulated the FDOC’s use of force procedure to use force
on Plaintiff. Plaintiff specifically contends that Peugh assembled the cell
extraction team before it was warranted. Id. at 1. He claims that Peugh’s
actions in this regard show that the “use of [the] cell extraction [team] was
predetermined and not based on a legitimate penological interest or need.” Id.
at 2.
V. Analysis9
a. Excessive Force and Failure to Intervene
The Eighth Amendment prohibits “cruel and unusual punishments.”
U.S. Const. amend. VIII.
9 For purposes of summary judgment, the Court views the evidence and all reasonable
inferences therefrom in the light most favorable to the non-moving party. Thus, the
facts described in the Court’s analysis may differ from those that ultimately can be
proved.
18
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 (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 and
sexual-assault 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 v. Gaddy, 559 U.S. 34, 37 (2010)
(citation and quotation marks omitted). 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
(cleaned up).
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,
or “sufficiently serious,” Wilson v. Seiter, 501 U.S. 294,
298 (1991), to violate the Constitution. “Not every
malevolent touch by a prison guard gives rise to a
19
federal cause of action.” Wilkins, 559 U.S. at 37. “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.
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.” Id. at
37 (citation and internal quotation marks omitted).
Sconiers v. Lockhart, 946 F.3d 1256, 1265-66 (11th Cir. 2020) (internal
citations modified).
In determining whether an officer’s use of force was applied maliciously
and sadistically for the purpose of causing harm, courts consider 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) (quoting Whitley v.
Albers, 475 U.S. 312, 321 (1986); Hudson, 503 U.S. at 7). 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
20
disturbance.’” Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007) (quoting
Bennett v. Parker, 898 F.2d 1530, 1533 (11th Cir. 1990)).
While a lack of serious injury is not dispositive, it is relevant to the
inquiry. Wilkins, 559 U.S. at 38; Smith v. Sec’y, Dep’t of Corr., 524 F. App’x
511, 513 (11th Cir. 2013) (per curiam).
“[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. (quoting Whitley, 475 U.S. at 321).
The extent of injury may also provide some indication
of the amount of force applied . . . . An inmate who
complains of a “‘push or shove’” that causes no
discernible injury almost certainly fails to state a valid
excessive force claim. Id. at 9 (quoting Johnson v.
Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).
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; see Charles v. Johnson, 18 F.4th 686, 700 (11th Cir.
2021) (citations omitted) (“A plaintiff who suffers only de minimis injury does
not necessarily lack a claim for excessive force under § 1983. However, the
resulting injuries can be evidence of the kind or degree of force that was used
by the officer.”).
21
Here, the parties present two different stories. On the one hand,
Defendants contend that the force used (chemical agents and cell extraction)
was necessary because Plaintiff was causing a disturbance on the wing and
being non-compliant with orders. On the other hand, Plaintiff swears that he
was not causing a disturbance and he was complying with Defendants’
commands. Plaintiff says the force used was excessive and unnecessary, and
the sexual assault was wholly violative of his constitutional rights.
The video evidence is not as clear as Defendants suggest. See Motion at
10 (“The handheld videos contradict Plaintiff’s allegations in nearly every
aspect.”). Indeed, the videos do not actually depict Plaintiff causing a
disturbance before the first application of chemical agents (although he clearly
states that he will wait for the camera to be turned off before being disruptive
again), nor do they conclusively refute his contentions that he was complying
with the orders given to him. In fact, contrary to Defendants’ argument that
the video shows them at all times during the cell extraction, see Motion at 11,
a review of the video evidence shows otherwise. The Court is neither able to
see each Defendants’ actions while inside of the cell nor Plaintiff’s compliance
or lack thereof. The video evidence does not clearly depict what occurred inside
the cell during the cell extraction. Thus, the Court cannot determine the
amount or extent of force used during the cell extraction or whether any sexual
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battery occurred. And although Plaintiff’s documented injuries are not severe,
he contends that he had other undocumented injuries.
The Court is faced with Plaintiff’s sworn version of events and
Defendants’ sworn version of events, neither of which are wholly supported or
contradicted by the videos or other documentary evidence. See Sears v.
Roberts, 922 F.3d 1199, 1208 (11th Cir. 2019) (citation omitted) (“[A] plaintiff’s
testimony cannot be discounted on summary judgment unless it is blatantly
contradicted by the record, blatantly inconsistent, or incredible as a matter of
law, meaning that it relates to facts that could not have possibly been observed
or events that are contrary to the laws of nature.”). It is not the province of the
Court on summary judgment to weigh the evidence or make credibility
determinations. See Sconiers, 946 F.3d at 1263 (“Summary judgment is not a
time for fact-finding; that task is reserved for trial.”); Sears, 922 F.3d at 1208-
09; see also Rivera v. LeBron, 824 F. App’x 838, 842 (11th Cir. 2020) (“As a
general rule, that kind of credibility determination is not appropriate at the
summary judgment stage.”). Moreover, “[a] guard who sadistically and
maliciously forces his finger into an inmate’s anus . . . plainly commits ‘severe
. . . sexual abuse of a prisoner’ and violates the Eighth Amendment.” Sconiers,
23
946 F.3d at 1266.10 Considering the record in the light most favorable to
Plaintiff, the Court finds genuine issues of material fact preclude entry of
summary judgment on Plaintiff’s excessive force claims.
Likewise, if a jury were to find Defendants’ use of force violated the
Eighth Amendment, the jury could also find that Defendants Hood, Davis, and
Oliver failed to intervene. See Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th
Cir. 2008) (“‘[A]n officer who is present at the scene and who fails to take
reasonable steps to protect the victim of another officer’s use of excessive force,
can be held liable for his nonfeasance.’” (quoting Velazquez v. City of Hialeah,
484 F.3d 1340, 1341 (11th Cir. 2007))). Defendants again rely on the video
evidence: “The video of the cell-extraction does not reveal the need for anyone
to intervene on Plaintiff’s behalf.” Motion at 14. But, as stated above, the video
is not as clear as Defendants suggest, and these Defendants, who were present
at the scene, likely had a better view of what was occurring inside the cell than
what can be seen on the video. The record evidence is contradictory, and
10 Defendants attempt to distinguish Plaintiff’s allegations from those in Sconiers by
arguing: “[T]his is not a case of digital penetration. This is a case wherein Plaintiff
alleges that he was penetrated with shackles, while wearing no boxers. A review of
the video demonstrates that even if Plaintiff’s allegations were true, Plaintiff cannot
prove that the incident occurred intentionally nor does he allege that the incident
occurred intentionally.” Motion at 12. Defendants provide no legal authority
supporting their argument that there is a difference between “digital penetration”
and penetration with shackles. And whether one of the Defendants intentionally or
unintentionally “penetrated several times [Plaintiff’s anus with] the open end of the
shackles” is not a question that can be resolved on this summary judgment record.
24
viewing the facts in the light most favorable to Plaintiff requires the Court to
deny Defendants’ Motion to the extent it seeks summary judgment on the
failure to intervene claims.
b. Qualified Immunity
The entirety of Defendants’ argument regarding qualified immunity is
“that there is no question that they were acting within their discretionary
authority at all times during the allegations made in Plaintiff’s complaint and
were not aware of any violations of Plaintiff’s constitutional rights.” Motion at
15. Defendants did not individually analyze each Defendant’s actions, nor do
Defendants separately discuss the uses of force (applications of chemical
agents and alleged physical/sexual force during the cell extraction). Plaintiff
argues that he has established Eighth Amendment violations and thus
Defendants are not entitled to qualified immunity. See Response at 26-27.
“The qualified immunity defense shields ‘government officials
performing discretionary functions . . . from liability for civil damages insofar
as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Corbitt v. Vickers,
929 F.3d 1304, 1311 (11th Cir. 2019) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). The doctrine protects all but the plainly incompetent or those
who knowingly violate an inmate’s constitutional rights. Alcocer v. Mills, 906
25
F.3d 944, 951 (11th Cir. 2018). In other words, “[q]ualified immunity shields
an officer from suit when [he] makes a decision that, even if constitutionally
deficient, reasonably misapprehends the law governing the circumstances [he]
confronted.” Taylor v. Riojas, 141 S. Ct. 52, 53 (2020) (quoting Brosseau v.
Haugen, 543 U.S. 194, 198 (2004)).
“To be entitled to qualified immunity, the defendant must first establish
that he was acting within the scope of his discretionary authority.” Gaines v.
Wardynski, 871 F.3d 1203, 1208 (11th Cir. 2017) (citation omitted). If the
defendant so shows, the burden shifts to the plaintiff to demonstrate that the
defendant violated his constitutional rights and at the time of the violation,
those rights were clearly established. Id. “Because § 1983 ‘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.” Alcocer v. Mills, 906 F.3d 944, 951 (11th Cir. 2018) (quoting Zatler
v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986)).
Here, Defendants were acting in the scope of their discretionary
authority as correctional staff members at the time of the alleged incidents.
Thus, Plaintiff must demonstrate that Defendants violated his constitutional
rights and at the time of the violation, those rights were clearly established.
26
As found above, viewing the facts in the light most favorable to Plaintiff,
as the Court is required to do, the Court finds that genuine issues of material
fact preclude finding that Defendants are entitled to qualified immunity.
Indeed, if a jury were to believe Plaintiff’s version of events, the jury could
reasonably find that Defendant Peugh violated Plaintiff’s rights by ordering
the use of chemical agents and that all Defendants violated Plaintiff’s rights
during the cell extraction.11 As such, the Court concludes that Defendants are
not entitled to qualified immunity.
In light of the foregoing, it is
ORDERED:
1. Defendants’ Motion for Summary Judgment (Doc. 160) is
DENIED.
2. Within 30 days from the date of this Order, the parties shall confer
in a good faith attempt to settle the remaining claims. The parties are
encouraged to maintain a realistic approach in making and considering any
settlement offers. If the parties resolve the case, they shall expeditiously file a
notice in compliance with Local Rule 3.09(a). If they are unable to settle the
11 The Court cannot individually analyze the actions of each Defendant with respect
to the cell extraction because the parties’ accounts vary significantly and the video
evidence does not clearly depict the actions of each Defendant during the cell
extraction.
27
case, they shall file a notice advising whether a settlement conference with a
United States Magistrate Judge may be beneficial.
DONE AND ORDERED at Jacksonville, Florida, this 19t* day of
January, 2028.
Py inn ( } > ONT an,
BRIAN/J, DAVIS
United States District Judge
JAX-3 1/11
C:
Alin Christopher Prophete, #B07712
Counsel of Record
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