The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
COREY L. MILLEDGE,
Plaintiff,
v. Case No. 3:20-cv-269-BJD-PDB
JEFFREY R. MCCLELLAN et al.,
Defendants.
_________________________________
ORDER
I. Status
Plaintiff, a former state inmate, is proceeding on an amended
complaint (Doc. 17; Am. Compl.) based on conduct that occurred when he was
housed at Florida State Prison (FSP).1 Plaintiff asserts multiple counts
against numerous Defendants, including Warden Reddish, who moves for
partial summary judgment under Rule 56 of the Federal Rules of Civil
Procedure (Doc. 182; Def. Mot.). Plaintiff opposes the motion (Doc. 195; Pl.
Resp.).
1 Plaintiff was released from state custody on January 25, 2023. See Florida
Department of Corrections Offender Search, available at http://www.dc.state.fl.us/
(last visited Jan. 31, 2023). He updated his address with the Court by providing
only an email address. See Notice (Doc. 197). Plaintiff is not an authorized e-filer
pursuant to the Administrative Procedures for Electronic Filing, United States
District Court, Middle District of Florida. As such, the Court will direct him to
provide a mailing address.
II. Motion for Summary Judgment Standard
Under Rule 56 of the Federal Rules of Civil Procedure, “[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). An issue is genuine when the evidence is
such that a reasonable jury could return a verdict in favor of the nonmovant.
Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting
Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A]
mere scintilla of evidence in support of the non-moving party’s position is
insufficient to defeat a motion for summary judgment.” Kesinger ex rel. Estate
of Kesinger v. Herrington, 381 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). 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). When
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the moving party has discharged its burden, the non-moving party must
point to evidence in the record to demonstrate a genuine dispute of material
fact. Id.
III. Analysis
Warden Reddish seeks dismissal of count fifteen. Def. Mot. at 2, 4, 8-9.
In that count, Plaintiff alleges Warden Reddish was “aware of widespread
abuse of inmates . . . [but] failed to take corrective steps to stop it” and
“maintained a custom or policy at [FSP] of the code of silence and allowing
abuse toward inmates.” Am. Compl. at 46-47.2 Warden Reddish argues there
is no evidence showing he adopted or maintained a custom or policy of abuse
against inmates, and he invokes qualified immunity, contending he was “not
aware of any violations of Plaintiff’s constitutional rights.” Def. Mot. at 6-9.
In a supporting affidavit (Doc. 182-1; Def. Aff.), Warden Reddish avers
Plaintiff’s allegations of a custom or policy are “untrue.” Def. Aff. ¶ 4.
In his response, Plaintiff contends Warden Reddish’s motion should be
denied because it was filed a week late. Pl. Resp. at 1. Plaintiff twice moved
for more time to respond to Warden Reddish’s motion, never raising a
timeliness objection. See Docs. 189, 192. The Court finds any such objection
2 Plaintiff also proceeds against Warden Reddish in count one (retaliation) and
count ten (failure to protect). See Am. Compl. at 33, 41. Warden Reddish does not
move for summary judgment on those counts.
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has been waived, and judicial economy is best served by ruling on the motion.
Substantively, Plaintiff concedes in both his response and a supporting
affidavit (Doc. 195-1; Pl. Aff.), he has no documentary evidence showing
Warden Reddish was aware of widespread abuse by staff against inmates at
FSP but says the only reason he lacks such evidence is because the Court
denied his motion to compel, “block[ing] [him] from obtaining the documents
that [he] need[s] to support [his] claim.” Pl. Aff. ¶ 6. See also Pl. Resp. at 5.
Apparently to overcome the lack of documentary evidence, Plaintiff
contends he “verbally advised” Warden Reddish of at least fifty incidents of
staff abuse against inmates at FSP between March 14, 2018, and September
3, 2020, but Warden Reddish “never investigated [his] complaints.” Pl. Aff. ¶
6. He also argues the incidents of which he complains in his complaint,
coupled with his allegation that Warden Reddish “did not take any discipline
. . . against the named Defendants who abused him,” permit the inference
that Warden Reddish had a custom or policy of permitting such abuse. Pl.
Resp. at 4.
Prison officials sued in their individual capacities are “entitled to
qualified immunity for [their] discretionary actions unless [they] violated
‘clearly established statutory or constitutional rights of which a reasonable
person would have known.’” Black v. Wigington, 811 F.3d 1259, 1266 (11th
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Cir. 2016) (quoting Case v. Eslinger, 555 F.3d 1317, 1325 (11th Cir. 2009)).
Qualified immunity allows government employees 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. In other
words, even if a prison official makes a decision that is later found to be
constitutionally deficient, the official is entitled to qualified immunity if the
decision was based on a reasonable misapprehension of the law governing the
circumstances. Taylor v. Riojas, 141 S. Ct. 52, 53 (2020) (citing Brosseau v.
Haugen, 543 U.S. 194, 198 (2004)).
Upon invoking qualified immunity, a defendant bears the initial
burden to demonstrate he was performing discretionary duties at the
relevant times. Id. Plaintiff does not dispute that Warden Reddish was acting
within the scope of his discretionary duties at the relevant times. As such, the
burden shifts to Plaintiff, who must point to facts that, accepted as true,
demonstrate Warden Reddish violated a clearly established constitutional
right. Id.
“It is well established in this Circuit that supervisory officials are not
liable under § 1983 for the unconstitutional acts of their subordinates on the
basis of respondeat superior or vicarious liability.” Cottone v. Jenne, 326
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F.3d 1352, 1360 (11th Cir. 2003), abrogated in part on other grounds by
Randall v. Scott, 610 F.3d 701 (11th Cir. 2010). A supervisor will be liable
only “when the supervisor personally participates in the alleged
constitutional violation or when there is a causal connection between the
actions of the supervising official and the alleged constitutional
deprivation.” Mathews v. Crosby, 480 F.3d 1265, 1270 (11th Cir. 2007)
(internal quotation marks and citation omitted).
The necessary causal connection can be established
“when a history of widespread abuse puts the
responsible supervisor on notice of the need to correct
the alleged deprivation, and he fails to do so.”
Alternatively, the causal connection may be
established when a supervisor’s “custom or policy ...
result[s] in deliberate indifference to constitutional
rights” or when facts support “an inference that the
supervisor directed the subordinates to act
unlawfully or knew that the subordinates would act
unlawfully and failed to stop them from doing so.”
Cottone, 326 F.3d at 1360 (internal citations omitted). When a claim against
a supervisor is premised on a supervisor’s knowledge of prior constitutional
deprivations, the plaintiff must show those prior deprivations were “obvious,
flagrant, rampant and of continued duration, rather than isolated
occurrences.” Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990).
As Plaintiff readily acknowledges, he has no evidence showing Warden
Reddish was aware of prior deprivations that were “obvious, flagrant,
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rampant and of continued duration.” Brown, 906 F.2d at 671. Even if Plaintiff
reported to Warden Reddish fifty incidents of what Plaintiff perceived to be
staff abuse against inmates, Plaintiff offers no evidence showing any of the
fifty incidents he reported were constitutional violations of the kind he
alleges in his complaint. Indeed, he does not describe with specificity any of
the incidents he claims to have reported. Moreover, Plaintiff says Warden
Reddish did not investigate his complaints, undermining his allegation that
Warden Reddish was “aware” of widespread abuse. Finally, Plaintiff’s own
experiences with staff abuse as alleged in his complaint do not demonstrate
or permit the inference that staff abuse was so “widespread as to be deemed
authorized by the policymaking officials.” See Roy v. Ivy, 53 F.4th 1338, 1350
(11th Cir. 2022) (quoting Craig v. Floyd Cnty., Ga., 643 F.3d 1306, 1310 (11th
Cir. 2011)). For the stated reasons, Warden Reddish is entitled to qualified
immunity on count fifteen.
In his response and a separate motion (Doc. 196; Pl. Mot.), Plaintiff
asks the Court to deny or defer ruling on Warden Reddish’s motion to allow
him an opportunity to obtain the documents he needs to substantiate his
custom/policy allegations. Pl. Resp. at 5-6; Pl. Mot. at 1. He cites Rule 56(d),
which provides, “If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its opposition,
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the court may . . . defer considering the motion or deny it . . . [or] allow time .
. . to take discovery.” Fed. R. Civ. P. 56(d).
“Rule 56(c) mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Plaintiff has had adequate
time for discovery. The Court opened discovery on March 29, 2022, and set a
deadline of June 24, 2022. See Order (Doc. 145). Plaintiff, an experienced pro
se litigant, propounded discovery, including interrogatories, requests for
production, and requests for admissions. See Docs. 152, 163, 168, 171, 172,
186. The Court entertained and ruled on motions to compel and, after so
ruling, afforded Plaintiff time to obtain and review evidence subject to
disclosure before having to respond to Warden Reddish’s motion. See Orders
(Docs. 183, 191).
As relevant here, in two requests for production, Plaintiff sought
documents he thought could help him prove his custom/policy claim against
Warden Reddish. See Order (Doc. 183 at 4 nn.1-2) (quoting Plaintiff’s
discovery requests). When Defendants did not respond to his requests,
Plaintiff filed a motion to compel, which the magistrate judge denied, finding
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the requests were not proportional to the needs of the case, and “the
administrative and court complaints [Plaintiff] request[ed] merely allege
facts; they do not establish facts.” Id. at 5. Plaintiff objected to the magistrate
judge’s omnibus order (Doc. 188), and the undersigned overruled his
objection. See Order (Doc. 191).
Plaintiff now asks the Court “to order the Florida Department of
Corrections to provide” all the documents Plaintiff previously sought through
discovery and his motion to compel. Pl. Resp. at 6. His request is merely
another attempt to seek reconsideration of or circumvent the Court’s order
denying his motion to compel. The request is due to be denied.
Accordingly, it is now
ORDERED:
1. Warden Reddish’s motion for partial summary judgment (Doc.
182) is GRANTED to the extent Warden Reddish is entitled to qualified
immunity on count fifteen.
2. Plaintiff’s motion under Rule 56(d) (Doc. 196) is DENIED.
3. Within fourteen days of the date of this Order, Plaintiff must
file a notice with a current mailing address.
4. This case is in a posture to proceed to settlement conference and,
if settlement negotiations fail, to trial. The Court finds Plaintiff is entitled to
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the appointment of counsel to assist him. See 28 U.S.C. § 1915(e)(1); Bass v.
Perrin, 170 F.8d 1812, 1320 (11th Cir. 1999). Thus, this case is REFERRED
to the Jacksonville Division Civil Pro Bono Appointment Program so the
designated deputy clerk of the Court may seek counsel to represent Plaintiff.
The Court encourages the parties to attempt to settle the case privately in
the meantime. If settlement negotiations are successful, the parties shall
immediately notify the Court.
DONE AND ORDERED at Jacksonville, Florida, this 2nd day of
February 2023.
4 YQ -
Datel)
BRIAN/J . DAVIS
United States District Judge
Jax-6
Cc:
Corey Milledge (coreymilledge22@gmail.com)
Counsel of Record
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