Rice v. Florida Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

LARYSSA RICE, individually, and as

Personal Representative for the Estate

of Travis Rice, deceased,

Plaintiff,

v. Case No. 3:20-cv-1206-BJD-PDB

FLORIDA DEPARTMENT OF

CORRECTIONS et al.,

Defendants.

______________________________________

ORDER

I. Status

Plaintiff, Laryssa Rice, is proceeding on a complaint under 42 U.S.C. §

1983 and the Florida Wrongful Death Act (FWDA) to recover damages for the

death of her son, Travis Rice, who died in the custody of the Florida

Department of Corrections (FDOC) (Doc. 6; Compl.).1 Plaintiff is Travis’s

mother and Personal Representative of his Estate. See Compl. ¶¶ 2, 4. She sues

the FDOC and seven corrections officers who were employed by Hamilton

Correctional Institution (HCI) at the relevant times. Id. ¶¶ 5, 8-14. Plaintiff

1 Plaintiff initiated the action in state court, and Defendants Creamer,

Miller, Hancock, and Yetton removed it. See Notice of Removal (Doc. 1). The

FDOC filed an answer in this Court the next day. See FDOC Answer (Doc. 7).

alleges her son Travis “was strangled to death by correctional officers during

his incarceration [at HCI] on September 4, 2018.” Id. ¶ 19. As relevant here,

Plaintiff alleges Defendant Johnson improperly used a “chokehold” on Travis,

and other officers participated in the alleged use of excessive force by spraying

Travis with chemical agents, helping to physically restrain him, or failing to

intervene. Count I is an excessive force claim under § 1983 against the

individual Defendants. Id. ¶¶ 44-55. Count II is a state-law wrongful death

(negligence) claim against the FDOC. Id. ¶¶ 56-59.

Before the Court is the FDOC’s motion for summary judgment (Doc. 80;

FDOC Mot.).2 Plaintiff opposes the motion (Doc. 91; Pl. Resp.) with exhibits

(Docs. 90-1 through 90-27). The FDOC filed a reply (Doc. 93; FDOC Reply).

2 The FDOC’s exhibits are filed in multiple docket entries (Docs. 80-1,

80-2, 82-1 through 82-9, 83-1, 84-1, 85-1, 86-1). The last four are the transcript

of Defendant Johnson’s deposition (Docs. 83-1 through 86-1). Although the

FDOC provides numerous exhibits, including video footage filed under seal, it

relies primarily on the two exhibits filed in the same entry as its motion—

affidavits executed by the FDOC’s Bureau Chief of Professional Development

and Training, John H. DeBell (Doc. 80-2; DeBell Aff.) and its expert witness,

Roy R. Bedard (Doc. 80-1; Bedard Aff).The other exhibits are offered primarily

to recount the facts, many of which are undisputed and not material to the

issues raised in the motion. Plaintiff’s exhibits will be cited as “Pl. Ex.” followed

by the exhibit number (1 through 27). Page numbers cited are those assigned

by the Court’s electronic management system.

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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).

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When 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. 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 [the motion].” Haves v. City of Miami,

52 F.3d 918, 921 (11th Cir. 1995) (citing Dibrell Bros. Int’l, S.A. v. Banca

Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994)).

III. Arguments, Analysis, and Evidence

The FDOC moves for summary judgment on the following grounds: (a)

by failing to allege that Travis was survived by his father in addition to herself,

Plaintiff has not complied with the FWDA, and she is now time-barred from

doing so; and (b) sovereign immunity shields it from liability. See FDOC Mot.

at 10, 11, 15. In response, Plaintiff argues as follows: (a) the FDOC cites no

binding authority “that supports dismissing a wrongful death claim [simply]

because . . . the Complaint does not list the correct beneficiaries”; and (b)

sovereign immunity does not bar the claim as a matter of law. See Pl. Resp. at

11, 17.

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A. The FWDA Argument

The parties agree that the FWDA applies. See FDOC Mot. at 10; Pl. Resp.

at 11. The FWDA provides in pertinent part, “All potential beneficiaries of a

recovery for wrongful death, including the decedent’s estate, shall be identified

in the complaint, and their relationships to the decedent shall be alleged.” Fla.

Stat. § 768.21. In her complaint, Plaintiff alleges she is “the surviving natural

parent” of Travis Rice and, in that capacity, seeks to recover damages available

under the FWDA. See Compl. ¶¶ 4, 59. She explicitly contends she is the “only

survivor of [Travis Rice] under [the FWDA].” Id. ¶ 4.

The FDOC contends that it discovered after Plaintiff initiated this case

that Travis also was survived by his father, who is not mentioned in the

complaint and whom Plaintiff did not notify about this lawsuit. See FDOC Mot.

at 10. At her deposition, Plaintiff testified that Travis’s father’s name is Kerry

Rice, and she did not inform him about this lawsuit. See Pl. Ex. 1 at 62-63.

For Plaintiff’s admitted failure to name Travis’s father as a survivor in

the complaint, the FDOC seeks dismissal of the claim against it. See FDOC

Mot. at 10. But the FDOC cites no binding authority in support of the relief it

seeks. See id.; Reply at 3-4. In a footnote, the FDOC cites two district court

orders in apparent support of the following proposition: “Plaintiff’s compliance

with all statutory condition precedents [sic] is mandated and her failure to do

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so within the statute of limitations warrants summary judgment in favor of

the FDOC.” See FDOC Mot. at 10 n.25. (citing Woody v. Delray Med. Ctr., No.

9:15-cv-81162, 2016 WL 705965, at *3 (S.D. Fla. Feb. 23, 2016); Mangin v.

Robertson, No. 6:07-cv-1649-ORL-18KRS, 2008 WL 2522576, at *2 (M.D. Fla.

June 24, 2008)).

Neither Woody nor Mangin stands for the proposition the FDOC

advances. Rather, those orders explain the consequences for a plaintiff’s failure

to comply with the “complex” and “stringent” conditions precedent to bringing

a medical malpractice claim in Florida. See Woody, 2016 WL 705965, at *3

(dismissing with prejudice the plaintiff’s medical malpractice claims for her

failure to timely comply with the “[s]tringent presuit investigatory

requirements”); Mangin, 2008 WL 2522576, at *2 (explaining that the “presuit

requirements are a condition precedent to filing a medical malpractice” claim

under Chapter 766).

Florida’s “uncommonly complex” and stringent medical malpractice

statute expressly mandates dismissal of a claim for a plaintiff’s failure to

comply with the presuit requirements. See Fla. Stat. § 766.206(2). The FWDA

contemplates no such sanction for a plaintiff’s failure to list all survivors in a

complaint, see generally Fla. Stat. § 768.21, and the FDOC cites no binding

authority suggesting a plaintiff’s failure to do so is akin to a failure to satisfy

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the stringent presuit requirements set forth in Chapter 766 of the Florida

Statutes, see FDOC Mot. at 10; FDOC Reply at 3, 4 n.14. Indeed, one of the

district court orders the FDOC cites in its reply suggests the proper remedy for

a pleading deficiency of this kind would be to permit an amendment. See Skyles

v. McCoy, No. 6:16-cv-1968-ORL-37TBS, 2017 WL 1322071, at *4 (M.D. Fla.

Apr. 7, 2017) (granting the plaintiff leave to amend to comply with the FWDA’s

requirement to identify all potential beneficiaries). Accordingly, the FDOC’s

motion is due to be denied on this argument.

B. The Sovereign Immunity Argument

The FDOC invokes sovereign immunity on two grounds: (i) Plaintiff

seeks to hold the FDOC vicariously liable for the corrections officers’ actions,

which she alleges were malicious, sadistic, or intentional; and (ii) Plaintiff

alleges the violation of discretionary as opposed to operational functions, or

points to no evidence substantiating her allegations. See FDOC Mot. at 11, 15,

17-18. In opposition, Plaintiff argues (i) she proceeds against the FDOC and

the individual officers on alternative theories of liability and whether the

officers “acted with sufficient malice to preclude a claim against the state” is a

jury question, and (ii) she challenges operational, as opposed to discretionary,

functions. See Pl. Resp. at 12-13, 19.

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i. Florida’s Waiver of Sovereign Immunity for Tortious

Conduct

First, the FDOC argues sovereign immunity bars the negligence claim

against it because Plaintiff proceeds on a theory of vicarious liability for the

officers’ “intentional” conduct (excessive force) but, under Florida law, “there

is no such thing as the ‘negligent’ commission of an ‘intentional’ tort.” See

FDOC Mot. at 11, 13-14 (quoting Greer v. Ivey, 767 F. App’x 706, 713 (11th Cir.

2019)).

As provided under the Florida Statutes, the state is deemed to have

waived its sovereign immunity for acts of its employees who, acting in the scope

of their employment, cause injury or death to another through negligence or

wrongful acts or omissions. Fla. Stat. § 768.28(1). However, the state has not

waived its sovereign immunity for acts of its employees that were “committed

in bad faith or with malicious purpose or in a manner exhibiting wanton and

willful disregard of human rights, safety, or property.” Id. § 768.28(9)(a).

Under the relevant provision,

[t]he state or its subdivisions are not liable in tort for

the acts or omissions of an officer, employee, or agent

committed while acting outside the course and scope

of her or his employment or [1] committed in bad faith

[2] or with malicious purpose [3] or in a manner

exhibiting wanton and willful disregard of human

rights, safety, or property.

Id.

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The phrases “bad faith,” “malicious purpose,” and “wanton and willful

disregard of human rights [or] safety” are not defined in the statute, but

Florida courts have provided guidance:

The phrase “bad faith” . . . has been equated with

the actual malice standard.

The phrase “malicious purpose” . . . has been

interpreted as meaning conduct was committed with

“ill will, hatred, spite, [or] an evil intent.” … [S]tated

more simply, “the subjective intent to do wrong.

The phrase “wanton and willful disregard of

human rights [or] safety” . . . has been interpreted as

“conduct much more reprehensible and unacceptable

than mere intentional conduct,” and “conduct that is

worse than gross negligence.”

Peterson v. Pollack, 290 So. 3d 102, 109 (Fla. 4th DCA 2020) (internal citations

omitted). Florida’s standard jury instructions define the terms “wanton” and

“willful.” The former term refers to a state of mind that is “intentional[],

knowing[], and purposeful[],” while the latter term requires something more:

“a conscious and intentional indifference to consequences and with the

knowledge that damage is likely to be done to persons.” Id. at 110. See also

Williams v. City of Minneola, 619 So. 2d 983, 987 (Fla. 5th DCA 1993) (holding

a finding of recklessness also could support a finding of “willful and wanton

conduct under section 768.28(9)”). The standard to overcome Florida’s

sovereign immunity “is at least as high as the standard needed to prove” an

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officer or agent of the state was deliberately indifferent to an inmate’s health

or safety under § 1983. See Valdes v. Crosby, 390 F. Supp. 2d 1084, 1108 (M.D.

Fla. 2005), aff’d, 450 F.3d 1231 (11th Cir. 2006).

Whether an officer’s conduct “evinced bad faith, malicious purpose, or

wanton [and] willful disregard” for an inmate’s safety is highly fact-specific

inquiry, generally preventing courts from concluding as a matter of law on

summary judgment that sovereign immunity applies. See Butler v. Gualtieri,

41 F.4th 1329, 1337-38 (11th Cir. 2022) (affirming the denial of sovereign

immunity for the sheriff where there were “material factual disputes” about

what happened and the inferences to be drawn therefrom, including “the

nature and degree of [the arrestee’s] resistance” and whether the officer used

more force than was necessary under the circumstances); Thompson v. Douds,

852 So. 2d 299, 306, 309 (Fla. 4th DCA 2003) (holding the trial court erred in

granting summary judgment in favor of officers who, the court held as a matter

of law, used more force than was necessary to subdue a suspect, because there

remained genuine issues of material fact whether the officers acted with

“wanton and willful disregard of [the suspect’s] rights [or] safety”).

Under Florida’s sovereign immunity statute, tort claims against a state

agency and its employee for the same conduct are mutually exclusive: “In any

given situation[,] either the agency can be held liable . . . or the employee [can

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be held liable], but not both.” McGhee v. Volusia Cnty., 679 So. 2d 729, 733 (Fla.

1996). Although the agency and employee cannot both be held liable under

section 768.28, a plaintiff may plead her claims in the alternative. See Fed. R.

Civ. P. 8(d)(2); Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1277-78

(11th Cir. 2006). “When a plaintiff pleads claims in the alternative . . . they are

[to be] read separately.” Strong v. City of Naples, No. 2:22-cv-318-KCD, 2022

WL 14029702, at *2 (M.D. Fla. Oct. 24, 2022) (citing Wagner, 464 F.3d at 1278).

In Count II, Plaintiff alleges the FDOC breached its duty to Travis by,

among other things, failing to abide by applicable rules, failing to properly

train and supervise HCI officers “regarding the safe and proper use of force

against inmates,” and failing to implement policies “regarding the safe and

proper methods of a correctional officer’s use of force against inmates.” See

Compl. ¶ 58. Plaintiff’s negligence claim against the FDOC is based on the

officers’ alleged use of excessive force as pleaded in Count I. But Plaintiff’s

claim against the officers in Count I is not, by definition, an “intentional tort”;

she pursues a claim for excessive force under § 1983. And force that is deemed

excessive under § 1983 is not necessarily synonymous with force that is done

with “bad faith, malicious purpose, or wanton [and] willful disregard of human

rights [or] safety” as those terms are used in section 768.28(9)(a). See Butler,

41 F.4th at 1339-40 (citing Thompson, 852 So. 2d at 310). Cf. City of Miami v.

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Sanders, 672 So. 2d 46, 47 (Fla. 3d DCA 1996) (explaining that, under Florida

law, there is no such thing as a claim for negligent use of excessive force

because “a suit for a police officer’s use of excessive force necessarily involves

the intentional tort of battery”).

Moreover, although Plaintiff alleges in Count I that the officers acted

“maliciously, sadistically, and deliberately,” see Compl. ¶¶ 48, 51, she does not

incorporate those allegations into her claim against the FDOC. Id. ¶ 56. As

such, the claims alleged in Counts I and II are not internally inconsistent or

factually incongruent. In other words, the Court cannot conclude as a matter

of law that Plaintiff’s alternative claims against the officers and the FDOC may

not both proceed to a jury. “It remains possible that [the officers] acted

wrongfully [or negligently] but without bad faith, malice, or w[a]nton and

willful disregard.” See Strong, 2022 WL 14029702 at *2. Whether the officers

acted with sufficient intent to absolve the FDOC of liability for their conduct

is a question of fact for the jury. See id. As such, the FDOC is not entitled to

summary judgment on this argument.

ii. Florida’s Immunity from Tort Liability for Discretionary

Functions

Next, the FDOC contends that Plaintiff complains solely about functions

that are discretionary in nature and to which immunity attaches. See FDOC

Mot. at 15. A state agency is immune from suit for acts that are purely

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“discretionary in nature,” as opposed to “merely operational.” See Lewis v. City

of St. Petersburg, 260 F.3d 1260, 1263 (11th Cir. 2001) (internal quotation

marks omitted) (citing Kaisner v. Kolb, 543 So. 2d 732, 734 (Fla. 1989)). Acts

that are “necessary to or inherent in policy or planning” are discretionary in

nature, while acts that “merely reflect[] a secondary decision as to how . . .

policies or plans will be implemented” are operational in nature. Id. at 1264.

See also Trianon Park Condo. Ass’n, Inc. v. City of Hialeah, 468 So. 2d 912, 918

(Fla. 1985). “[A]n act is ‘discretionary’ if it involves an exercise of executive or

legislative power such that, for the court to intervene by way of tort law would

inappropriately entangle it in fundamental questions of policy and planning.”

Lewis, 260 F.3d at 1264-65 (internal quotation marks omitted) (quoting Dep’t

of Health & Rehab. Servs. v. Yamuni, 529 So. 2d 258, 260 (Fla. 1988)).

Plaintiff alleges the FDOC breached its duty under state law to “exercise

a reasonable degree of care in the operation and management of [HCI] and to

safeguard inmates and protect their constitutional rights.” See Compl. ¶¶ 57-

58. Plaintiff alleges the FDOC breached its duty in the following eight ways:

a) Failing to abide by the [FDOC’s] rules, guidelines[,]

and regulations;

b) Failing to abide by the American Correctional

Association’s rules, guidelines, and regulations;

c) Failing to implement and follow proper medical

protocols and procedures;

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d) Failing to implement proper policies and

procedures to ensure the safety and wellbeing of

[HCI’s] inmates, including [Travis];

e) Failing to properly train the [HCI’s] correctional

officers regarding the safe and proper use of force

against inmates, including [Travis];

f) Failing to implement the appropriate policies and

procedures, rules and regulations, and guidelines

regarding the safe and proper methods of a

correctional officer’s use of force against inmates,

including [Travis];

g) Failing to properly supervise [HCI’s] correctional

officers; and

h) Failing to prevent the strangulation and death of

[Travis].

Id. ¶ 58. The FDOC argues Plaintiff challenges discretionary functions, but,

regardless, no evidence substantiates her allegations in subparagraphs (a)

through (g). See FDOC Mot. at 18-25. The FDOC does not address

subparagraph (h) in its motion. See id. As such, the Court will not do so.

In her response, Plaintiff clarifies that her claim is premised on

Defendant Johnson’s alleged improper use of a “chokehold.” See Pl. Resp. at

17. Specifically, Plaintiff argues the evidence shows the FDOC contributed to

Travis’s death by (1) failing to follow its own policies and rules that prohibited

officers from using chokeholds, or (2) failing to properly train Defendant

Johnson how to safely use such a technique. Id. In so narrowing her claim, she

14

abandons the allegations contained in all subparagraphs except for (a) and (e)

(and (h) given the FDOC does not address it, as noted).3

Plaintiff says that the issue is not what content should have been

included in the FDOC’s training program, which she concedes is a

discretionary function not subject to suit, but rather the implementation of

policies related to training corrections officers. See Pl. Resp. at 19-20. Plaintiff

contends, “[Defendant] Johnson was trained that an available technique to

gain control [of an inmate] was choking [him] to unconsciousness, but that [sic]

was also never taught how to do it right.” Id. at 19. If Plaintiff indeed is

challenging the FDOC’s implementation of an established policy, then

sovereign immunity would not bar the claim. See Lewis, 260 F.3d at 1266

(noting that a challenge to the implementation of a police training program as

related to specific officers involved in an incident would involve operational

3 The FDOC contends in its reply that Plaintiff does not dispute its

argument that there is no evidence supporting the allegations set forth in

subparagraphs (b), (c), and (d). See Reply at 7. The Court agrees and further

finds Plaintiff does not dispute the FDOC’s argument with respect to

subparagraphs (f) and (g). The FDOC does not reference by letter designation

subparagraph (g) in its motion but addresses the allegations in that

subparagraph (a failure to supervise) together with the allegations in

subparagraph (e) (a failure to train). See FDOC Mot. at 23-24. Plaintiff does

not argue in her response, or cite to evidence, that the FDOC failed to supervise

Defendant Johnson or any other individual Defendant, as alleged in

subparagraph (g). See Pl. Resp. at 17-20. Her argument is limited to a failure

to properly train Defendant Johnson in the use of a specific defensive

technique—a chokehold—which implicates subparagraphs (a) and (e).

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functions). However, the evidence does not support Plaintiff’s characterization

of the issue.

The FDOC argues it prohibits the use of “chokeholds” and, therefore,

does not train officers on their use, and it was not on notice of a need to train

Defendant Johnson or other officers in a particular area. See FDOC Mot. at 18-

19, 23-24. In so arguing, the FDOC primarily relies on the affidavits of Mr.

DeBell and Dr. Bedard. DeBell explains the Criminal Justice Standards and

Training Commission (CJSTC) establishes minimum training criteria for law

enforcement personnel, including corrections officers. See DeBell Aff. ¶ 3. The

technique referred to as the standard vascular neck restraint (SVNR)—

colloquially, a “chokehold”—is part of the curriculum, but whether corrections

agencies must teach it is optional.4 Id. ¶ 4.

DeBell avers the CJSTC uses Form 6 to evaluate a new corrections

officer’s performance in defensive tactics. Id. ¶ 5. Form 6 indicates the SVNR

defensive technique is an optional training category. Id. With his affidavit,

DeBell provides a copy of Defendant Johnson’s completed Form 6, which

indicates he finished his training on January 12, 2015. Id. at 13. Page 4 of the

form requires an instructor to indicate whether a candidate was trained in the

4 Plaintiff uses the term “chokehold” when referring to the SVNR

technique. See Pl. Resp. at 5. However, Dr. Bedard avers the terms refer to

different techniques. See Bedard Aff. at 15-17.

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use of the SVNR, listed as an “optional” category. Id. at 16. On Defendant

Johnson’s form, an instructor wrote “N/A” in the category for instruction on the

SVNR. Id.

DeBell avers, “candidates for the FDOC are not instructed on nor tested

for their proficiency on the proper use of the SVNR” because the FDOC does

not permit its officers to use such a technique. Id. ¶¶ 6-8. In fact, all defensive

tactics instructors are required to sign a form “acknowledging their

understanding that the FDOC prohibits any training on the use of the SVNR

or any choke hold technique under any circumstances.” Id. ¶ 9. DeBell provides

a copy of this form with his affidavit. See id. at 18.

The FDOC also provides the expert report of Dr. Bedard, who avers he

has been “listed as a subject matter expert in use of force and defensive tactics

by the Florida Department of Law Enforcement [(FDLE), which] oversees the

[CJSTC].” See Bedard Aff. at 3. In forming his opinion, Dr. Bedard reviewed,

among other things, documentary and video evidence of the subject incident.

Id. at 7-11. Dr. Bedard explains various reports indicate that, at shortly after

10:00 p.m., officers observed Travis being combative (in their opinion) and non-

compliant with commands to submit to restraints.5 Id. at 12-13. Defendant

5 The parties dispute the reason for Travis’s admittedly strange behavior.

Inmates who witnessed the incident said Travis was having a spiritual battle

or a mental breakdown and had tried to declare a medical emergency earlier

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Johnson deployed chemical agents and, when that did not have the desired

effect, “grabbed [Travis] by the shoulder and initiated a foot sweep to bring him

to the ground” face first. Id. at 13.

Dr. Bedard explains that other officers then assisted: “Several officers

stabilized [Travis] with downward pressure to his torso and limbs, then with

the use of handcuffs (Hardee and McCoy) and leg restraints (Hancock and

Creamer) secured him.” Id. The incident was captured on video, which Dr.

Bedard reviewed. He avers the video shows the following:

[Defendant] Johnson on top of [Travis] at

approximately 10:23:52. Johnson’s arm is placed

around [Travis]’s upper body or neck, but the video is

not clear if there is any neck compression. Johnson

claimed that he placed his arm over [Travis]’s arms to

give the officers the ability to handcuff him. All that

can be seen is Johnson’s shoulder on the shoulder of

Travis. The placement of the forearm remains hidden

from view. At no time was I able to see the placement

of Johnson’s arm against the windpipe of Travis.

....

At 10:24:44, Johnson released [Travis] and stood up.

At this time another officer moved to a prone handcuff

position and handcuffed [Travis]. He placed his

support knee on the ground and not on [Travis]’s back

to not compromise [Travis]’s respiration. [Travis] was

secured without further incident. Only 52 seconds

in the evening. See Pl. Ex. 16 at 7; Pl. Ex. 17 at 7; Pl. Ex. 21. The individual

Defendants and at least one inmate believed Travis had ingested a form of

synthetic marijuana known in the corrections system as K2. See Pl. Ex. 16 at

7; Pl. Ex. 21 at 1; Pl. Ex. 22.

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passed from the time Johnson grabbed [Travis] around

the upper body and neck to the time he released him.

At 10:25:40, [Travis] was secured, and the officers

stood him up.6

Id. at 14-15.

Dr. Bedard avers there is no evidence showing Defendant Johnson was

“formally trained in the proper use or application of the SVNR,” which, when

performed correctly, restricts blood flow and is considered safe for use by

corrections officers, as opposed to a chokehold, which restricts airflow and is

not safe to use. Id. at 15-17. He acknowledges that “neither a properly applied

SVNR nor an unorthodox ‘chokehold’ would [have been] appropriate under the

circumstances[,] the first technique by policy and the second by law.” Id. at 15.

He also acknowledges, however, that the evidence does not clearly reflect

whether “[Defendant] Johnson applied a vascular restraint [or] a chokehold, or

if the technique he applied was proximate to [Travis]’s death.” Id. at 17, 23.

6 During the use-of-force or shortly thereafter, Travis became

unconscious, and officers had to remove him from the dormitory using a “two-

man carry.” See Bedard Aff. at 18; Pl. Ex. 22 at 1. It is undisputed that the use

of the “two-man carry” violated FDOC policy. See Pl. Ex. 22 at 1 (use of force

incident report noting the “two-man carry technique that was used by staff

during the removal of [Travis] from the dormitory” did not comply with Florida

Administrative Code chapter 33-602.210). Plaintiff clarifies that her claim is

not premised on the improper use of the “two-man carry” but rather on

Defendant Johnson’s alleged use of a chokehold. See Pl. Resp. at 17.

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Plaintiff counters in her response that the FDOC violated its own policy

by “training [Defendant] Johnson that a chokehold was a permitted defensive

technique.” See Pl. Resp. at 17, 20 (emphasis added). Plaintiff provides no

contemporaneous citation to the record in support of this contention, but it

appears she is relying primarily on the following exhibits: 13 (Dr. Bedard’s

deposition transcript); 14 (a 76-page document that lists all the training

courses the individual Defendants took); 15 (a training manual titled, “Florida

Basic Recruit Training Program: High Liability, Volume 2”); 16 (a criminal

investigation report prepared by the Office of the Inspector General (IG), case

number 18-15621); 17 (an administrative investigation case summary report

prepared by the IG’s office, case number 19-12444); and 23 (Defendant

Johnson’s Form 6). See Pl. Resp. at 7-8, 17.

In the IG report for case number 18-15621, the reporting officer

concludes that the video evidence shows Defendant Johnson lying on top of

Travis “with his left arm wrapped around [Travis’s] throat and neck area,

consistent with a technique known as a [SVNR] (‘chokehold’).” See Pl. Ex. 16

at 8. Additionally, the IG notes, “A check of [Defendant] Johnson’s FDLE

CJSTC Form 6, Defensive Tactics Performance Evaluation from his Basic

Recruit Training indicated he was not tested or showed proficiency on the

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proper utilization of the [SVNR].” Id.7 The FDOC concedes Defendant Johnson

was not trained how to use a SVNR and explains why: the FDOC explicitly

prohibits officers from using such a technique and, therefore the optional

lesson in the Florida Basic Recruit Training Program manual (lesson 12) is

omitted from the FDOC’s training program as a matter of policy. See DeBell

Aff. ¶¶ 6-9; Bedard Aff. at 15-16; Pl. Ex. 13 at 35-36.

The IG report for case number 19-12444 provides as follows:

[I]t is apparent from video evidence, and corroborated

by multiple inmate witnesses, that [Defendant]

Johnson placed [Travis] in what is effectively known

as a “choke-hold”; a Defensive Tactic or UOF method

that is considered Deadly Force. The application of a

deadly force method during this incident was an

inappropriate and excessive response to the active

resistance displayed by Inmate Rice and should not

have been employed.

Sergeant Johnson was trained in these matters as

evidence by his basic recruit training documents,

which indicate he showed proficiency.

See Pl. Ex. 17 at 10 (emphasis added).

It is unclear to what training documents the report refers or what is

meant by the phrase, “these matters” (i.e., “deadly force” or use-of-force

techniques generally or chokeholds specifically). However, this statement does

7 Dr. Bedard too observed at his deposition that Defendant Johnson’s

Form 6 indicates he had not been trained in the technique. See Pl. Ex. 13 at

31-32, 34-35.

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not contradict the evidence offered by the FDOC that Defendant Johnson

received no training in the use of a SVNR because, as a matter of policy, officers

were not permitted to use the technique. See DeBell Aff. ¶¶ 6-9; Pl. Ex. 23.

Plaintiff points to no documentation supporting the conclusion she asks

the Court to take away from the IG reports and training materials: that the

“FDOC violated its own policy by training [Defendant] Johnson that a

chokehold was a permitted defensive technique.” See Pl. Resp. at 17-18. The

IG report number 19-12444 does not reference, identify, or incorporate any

training materials for Defendant Johnson. See generally Pl. Ex. 17. The basic

recruit training manual Plaintiff cites (exhibit 15) is the same manual DeBell

references in his affidavit, which notes that training in the use of the SVNR is

“optional for . . . Corrections.” See Pl. Ex. 15 at 252. And there is no indication

in the seven pages of training records for Defendant Johnson that he was

instructed or informed a SVNR was “a permitted defensive technique” to use

when dealing with difficult inmates. See Pl. Ex. 14 at 1-7. The curriculum for

each course is not provided, and the course names are non-descript, i.e.,

“Defensive Tactics and Use of Force.” See id. at 4-5.

Although the IG reports note the video of the incident shows Defendant

Johnson with his arm around Travis’s neck “consistent” with a SVNR or

chokehold, this fact, standing alone, does not permit the conclusion or inference

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that the FDOC, contrary to its own policy, trained or advised Defendant

Johnson the SVNR was a permitted defensive technique. Dr. Bedard explains

in his deposition transcript that a person is not using the SVNR just because

his arm is around another person’s neck: “Placing your hand around someone’s

neck or your arm around someone’s neck does not make it a vascular neck

restraint.” See Pl. Ex. 13 at 32. He notes that, in a physical interaction, a

person may grab another person’s neck simply out of convenience but not out

of training or intent to apply a specific defensive technique. Id. at 33-34. If the

person does not know about the technique, he or she cannot be said to have

used it properly or improperly. Id. at 34.

In short, Plaintiff offers no evidence supporting her conclusory assertion

that Defendant Johnson was informed, instructed, or advised through his

official FDOC training that a SVNR was “a permitted defensive technique” but

nonetheless was not trained how to safely use it. Rather, the evidence shows

that the FDOC, as a matter of policy, prohibits corrections officers from using

the SVNR, does not train its officers in its use for that reason, and requires

defensive tactics instructors to sign a waiver certifying their understanding

that they are not to teach officers who are not CJSTC-certified instructors how

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to use the technique.8 See DeBell Aff. ¶¶ 6-9, p. 18; Pl. Ex. 13 at 35; Pl. Ex. 23.

To the extent Plaintiff merely disagrees with the FDOC’s policy to omit the

SVNR lesson from its training curriculum, her challenge is to a discretionary

function and not subject to suit. See Lewis, 260 F.3d at 1266 (“A city’s decision

regarding how to train its officers and what subject matter to include in the

training is clearly an exercise of governmental discretion regarding

fundamental questions of policy and planning.”).

For the reasons stated, the Court finds the FDOC’s motion for summary

judgment is due to be granted as to the allegations in paragraph 58

subparagraphs (a) through (g). Given the FDOC does not address

subparagraph (h) in its motion, those allegations will proceed to trial.

Accordingly, it is now

ORDERED:

1. The FDOC’s motion for summary judgment (Doc. 80) is

GRANTED in part to the extent stated in this Order.

2. The Court encourages the parties to renew or continue their

settlement discussions and advise the Court immediately if their discussions

are fruitful.

8 Plaintiff does not assert or point to evidence that Defendant Johnson

was a CJSTC-certified instructor.

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DONE AND ORDERED at Jacksonville, Florida, this 25th day of May

2023.

Se é / \

U /iton—_— ( | £Aqee,

BRIAN, DAVIS

United States District Judge

Jax-6

C:

Counsel of Record

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