Black v. Lane

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

EVERETTE L. BLACK, JR.,

Plaintiff,

v. Case No. 3:22-cv-298-BJD-LLL

SGT. R. MOLINSKI and

SGT. S.M. MOLINSKI,

Defendants.

___________________________

ORDER

I. Status

Plaintiff, an inmate of the Florida penal system, initiated this case by

filing a pro se Civil Rights Complaint (Doc. 1; Complaint). He is proceeding as

a pauper. See Order (Doc. 5). On March 24, 2022, the Court dismissed all claims

against Defendant Warden Lane. See Order (Doc. 6). Thus, the only remaining

Defendants are Sgt. R. Molinski and Sgt. S.M. Molinski.1

Before the Court are the parties’ cross motions for summary judgment.

See Defendants’ Motion for Summary Judgment (Doc. 34; Defendants’ Motion);

1 Robert Molinski and Suzzan Molinski are husband and wife, and they worked for

the Florida Department of Corrections (FDOC) at the time of the incident alleged in

the Complaint.

Plaintiff’s Motion for Summary Judgment (Doc. 39; Plaintiff’s Motion).

Defendants filed a Response to Plaintiff’s Motion (Doc. 42; Defendants’

Response), and Plaintiff filed two responses to Defendants’ Motion (Docs. 41,

43) and a Declaration (Doc. 41-1). The Motions are ripe for review.2

II. Complaint Allegations

Plaintiff alleges that on November 18, 2021, at Suwannee Correctional

Institution, Sgt. R. Molinski and Officer McDonald “approached Plaintiff about

an accusation of wrong-doing alleged by Sgt. S.M. Molinski.” Complaint at 8.

R. Molinski and McDonald escorted Plaintiff to confront S.M. Molinski, and

Plaintiff “asked [her] why she was falsely accusing him of a rule violation (lewd

and lascivious exhibition).” Id. “S.M. Molinski became irate and shouted to her

husband, Sgt. R. Molinski, [who] immediately slammed Plaintiff to the

pavement, jammed his knee into Plaintiff’s back and put Plaintiff in a choke

hold.” Id. “Plaintiff gasped for air and pleaded for his life.” Id. According to

2 Plaintiff filed multiple requests for extensions of time to file a reply, which the Court

granted. See Orders (Docs. 47, 50, 52). In its January 9, 2024 Order, the Court advised

Plaintiff that no further extensions would be provided and the Court would consider

the case ripe on January 18, 2024. See Order (Doc. 52). On January 18, 2024 (mailbox

rule), Plaintiff filed another request for an extension of time (Doc. 53). Then on

February 26, 2024 (mailbox rule), Plaintiff filed a motion for an extension of time to

send preserved documents and letters to support his position on summary judgment

(Doc. 54). Plaintiff’s requests are due to be denied. Plaintiff has not shown that good

cause or excusable neglect justifies an additional extension of time. Plaintiff was

afforded more than 5 months to file a reply, and the Court advised him that no further

extensions would be considered.

2

Plaintiff, he “was not combatant or resisting in any way,” but “R. Molinski

reacted with force at his wife’s prompting and in anger because he felt Plaintiff

had offended his wife.” Id. at 9. Plaintiff further asserts that R. Molinski

choked him and stated, “‘N**ger, I don’t give a damn about my job. I’ll kill your

black a**.’” Id. at 9. “At that point Captain Sullivan . . . entered the hallway,

saw what was going on,” and asked R. Molinski why he was there because he

was supposed to be in N-Dorm. Id. Plaintiff claims that “Captain Sullivan

ordered Sgt. R. Molinski to let go of Plaintiff and Plaintiff was taken to medical

for a pre-confinement physical and then to confinement.” Id. Plaintiff notes

that he “was subsequently found not guilty of Sgt. S.M. Molinski’s allegation

against him.” Id.

Plaintiff alleges that he “sustained structural and nerve damage to his

neck,” “psychological damage (anxiety, depression, paranoia, etc.),” and

“persistent upper back pain.” Id. at 7. He seeks monetary damages as relief.

Id.

III. 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

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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 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.”

4

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)). Additionally, a

court should accept as true a pro se plaintiff’s assertions in his verified

complaint and sworn affidavit attached to his response. See Sears v. Roberts,

922 F.3d 1199, 1206 (11th Cir. 2019).

“The principles governing summary judgment do not change when the

parties file cross-motions for summary judgment. When faced with

cross-motions, the Court must determine whether either of the parties

deserves judgment as a matter of law on the undisputed facts.” T-Mobile S.

LLC v. City of Jacksonville, Fla., 564 F. Supp. 2d 1337, 1340 (M.D. Fla. 2008).

IV. Analysis of Defendants’ Motion

Defendants make the following arguments in their Motion: (1) they are

entitled to Eleventh Amendment immunity to the extent they are sued in their

official capacities for monetary damages; (2) Plaintiff fails to state a claim

against R. Molinski; (3) R. Molinski is entitled to qualified immunity; (4)

Plaintiff fails to state a claim against S.M. Molinski; (5) Plaintiff is not entitled

to compensatory damages; and (6) Plaintiff’s nominal damages should be

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reduced to $1. In support of their arguments, Defendants submitted a copy of

Plaintiff’s disciplinary report packet; declarations of both Defendants, Officer

McDonald, Captain Sullivan, and Kellie Caswell; Plaintiff’s medical records;

an Inspector General’s report and documentation; fixed wing and handheld

videos; and a copy of Plaintiff’s deposition.

In pertinent part, Defendant S.M. Molinski avers:

On November 18, 2021, I was assigned as O-

Dormitory housing officer at Suwannee Correctional

Institution - Annex in Live Oak, Florida. At

approximately 6:15 p.m., I was present in O-

Dormitory’s officer’s station. During a visual scan of

the dorm, I witnessed Inmate Black sitting in the

dayroom, staring directly at me and masturbating. I

informed the officers assigned to the wing of Inmate

Black’s behavior.

Inmate Black was escorted out of O-Dormitory’s

dayroom and into the hallway next to the officer’s

station. Inmate Black approached the officer’s station

window flap and started yelling at me. I told the

officers to get the inmate away from the window. After

making the request, I then returned to my duties and

did not pay any more attention to the officers or the

inmates. I did not order Sergeant R. Molinski to take

Plaintiff down.

I did not witness Sergeant R. Molinski use force

on Inmate Black. I was not standing near the window

facing the incident and was on the phone with the

control room continuing to perform my required

duties.

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However, even if I had witnessed the incident, I

would not have been able to intervene. The officer’s

station where I was situated is enclosed with thick

plexiglass windows and the door is on the opposite side

of the window flap. In order to have physically

intervened I would have had to leave the control room

and pass through several solid security doors to enter

into the wing. The process of leaving the security

station would have taken several minutes.

Furthermore, I would not have been able to

leave the station with the key until I was relieved by

another officer. The door to the control room locks once

the door is closed, and someone must be in the control

room at all times. At most I could have made verbal

statements but could not physically intervene in any

altercation. I was not able to make verbal statements

as I was not paying attention to what was going on

outside of the control room since I had already

reported the incident to the officers.

Doc. 34-2 at 2-3 (paragraph enumeration omitted).

Officer McDonald avers:

On November 18, 2021, I was assigned to O-

Dormitory as a housing officer at Suwannee

Correctional Institution - Annex in Live Oak, Florida.

At approximately 6:15 p.m., I received notice

that Inmate Black was engaging in lewd and

lascivious behavior. Sergeant R. Molinski and I

subsequently escorted Inmate Black . . . out of O-

Dormitory’s dayroom and counseled him regarding an

alleged rule violation for lewd and lascivious

exhibition. I attempted to place him in a holding cell

to put hand restraints through the door’s flaps.

However, Inmate Black refused to enter the holding

cell and began to yell at Sergeant S. Molinski, who was

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in the officer’s station, through the glass windows. I

gave Inmate Black a verbal order to submit to hand

restraints and he refused to comply. I gave a second

verbal order to Inmate Black to submit to hand

restraints, and again, he refused. Inmate Black

clenched his fists, and stated, “I’m not cuffing up.”

Based on Plaintiff’s actions, I stepped back and

reached for my chemical agent cannister, however,

before I could reach it, I saw Sergeant R[.] Molinski

grab Inmate Black by his upper body and force him

chest first to the floor. Sergeant R. Molinski’s actions

were taken to regain compliance of Inmate Black and

to protect me from harm. Inmate Black was placed in

hand restraints and Sergeant R. Molinski ceased all

use of force. Subsequently, I placed leg restraints on

Inmate Black and relieved Sergeant R. Molinski as I

awaited further instructions.

I was instructed by Captain Sullivan to escort

Inmate Black to P-Dormitory’s holding cell in

anticipation of a medical assessment. I assisted in the

escort, and no further incident occurred during the

escort. Once Inmate Black was secured in the holding

cell in P-Dormitory, I returned to my assigned post.

I did not use force on Inmate Black.

Additionally, the force utilized by Sergeant R.

Molinski was done in response to Plaintiff’s actions in

an effort to regain compliance and protect me from

being harmed. The use of force was not ordered by

Sergeant S. Molinski. Sergeant R. Molinski did not

utilize more force than was necessary under the

circumstances.

Doc. 34-3 at 2-3 (paragraph enumeration omitted).

Defendant R. Molinski declares as follows:

8

On November 18, 2021, I was a Sergeant

assigned as O-Dormitory’s Housing Supervisor at

Suwannee Correctional Institution - Annex in Live

Oak, Florida. At approximately 6:15 p.m., I was

present in O-Dormitory’s sally port with Officer Alton

McDonald as he counseled Inmate Black regarding an

alleged rule violation by Inmate Black. We ordered

Inmate Black to enter the holding cell to place him in

hand restraints in order to transfer him to

confinement. Inmate Black physically refused to enter

the holding cell. Officer McDonald ordered Inmate

Black to submit to hand restraints, however, Inmate

Black refused to comply with Officer McDonald’s

orders. Inmate Black stated, “I’m not cuffing up,” as he

clenched his fists and stepped aggressively towards

Officer McDonald. I observed Officer McDonald take a

step back.

Based on Plaintiff’s actions, I then proceeded to

grab Inmate Black’s upper torso and forced him chest

first to the floor to regain compliance from Inmate

Black and to prevent Officer McDonald from being

harmed. Once Inmate Black was placed in hand

restraints, all force ceased.

The force I used was the minimal amount of

force needed to overcome Inmate Black’s physical

resistance to Officer McDonald’s lawful commands. I

did not otherwise harm Plaintiff and my actions were

only taken based on the Plaintiff’s actions.

After the incident, it is also my understanding

that an Inspector General investigation was

conducted, and it was determined that Plaintiff’s

claims were not supported by the evidence. No action

was taken against me by FDC or the Inspector General

as a result of the incident Plaintiff has sued me for.

Doc. 34-4 at 2-3 (paragraph enumeration omitted).

9

Defendants also submitted fixed wing and handheld camera footage. The

fixed wing videos are from O dorm Q4 entrance; and P dorm Q4 entrance,

stairs, showers, and SHAS. The O dorm camera is situated inside the dorm on

the upper level, so it shows the officer station area where the incident occurred

but the view is somewhat far away and obstructed. The timestamp at the start

of the video is 6:15pm. Plaintiff and McDonald can be seen near the officer

station, and someone can be seen inside the officer station at various times in

the video, but it is unclear of their proximity to Plaintiff and what the person

is doing.3 Plaintiff is unrestrained and it appears that he has a tablet in one

hand.4 Plaintiff approaches the officer station and then backs away with his

hands in the air as if he is questioning what is happening. He approaches the

officer station again, and appears to be talking to McDonald. McDonald takes

a step back and about 41 seconds after the video begins, R. Molinski appears

and takes Plaintiff down to the ground. The three are then largely off camera

and the video does not show what occurs once Plaintiff is on the ground.

Approximately 5 minutes and 10 seconds after the takedown, Plaintiff is

assisted to a sitting position.

3 Based on the parties’ assertions, the individual inside the officer station is most

likely S.M. Molinski.

4 It is unclear from the video whether Plaintiff has a bag of Doritos in his other hand.

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The handheld camera footage begins at 6:28pm while Plaintiff is being

escorted outside to a holding cell to await medical. While in the holding cell

awaiting medical, Plaintiff states that he “was trying to see what the lady was

talking about and so was y’all and he got mad.” At 6:42pm, the first handheld

camera was cut off because of a dead battery. The second handheld camera

footage begins at 6:42pm and shows Plaintiff in the same holding cell

discussing with officers what is going to happen to his property in his cell. At

6:43pm, he is taken into medical and assessed. At 6:54pm, Plaintiff exits

medical and the camera does a front and back view of him to capture any visible

injuries (none are shown). At 6:57pm, Plaintiff is secured in a cell. The

handheld camera footage cuts out, but starts again moments later (the time

was still 6:57pm) for Captain Sullivan to provide a closing statement noting

that no injuries were documented. The handheld camera stopped recording at

6:58pm.

During Plaintiff’s deposition, Plaintiff acknowledged that he was ordered

to enter the “holding cage” but instead of doing so, he questioned the officers

asking, “For what? What is going on?” Doc. 34-11 at 16. He explained, “I didn’t

know these officers. I didn’t trust them. I didn’t know what was going on.” Id.

Plaintiff continued:

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“So this lady right here said you did something

to her.” And I said, “What lady?” And they said here.

It can be seen on camera.

Officer McDonald, we go to the officer station to

have a glass door and they can hear – she’s in there

drinking a Mountain Dew or fruit punch and she’s not

looking at me. She’s looking the other way. “What is

this? What are they talking about? Why do I have to

go in the holding cage?” She don’t say anything. I look

at her husband. He puts his head down. He’s standing

six feet behind me. So she said that you disrespected

her. Disrespected her?

I looked up in the booth. “Ma’am, excuse me,

what is this dude right here, Mr. McDonald, talking

about? And what is this other guy talking about?”

At this point in time, I don’t know this is her

husband. She don’t say anything, ma’am. I don’t know

what she’s talking about.

“She says that you masturbated on her.” I said,

“What?” I look in the booth. “Ma’am, did you tell them

that? Ma’am, you got the wrong person. You didn’t see

my penis. I didn’t - - I’m waiting in line to get the kiosk.

I went to the water fountain. You must got the wrong

dude.”

She said, “You know what you did.” I said, “You

need to look in the quad and get the right man. You’re

accusing me of something. I did not do what she’s

talking about.”

I turned around to the husband. This lady is

lying on me. I said, “Listen, ma’am, can you please look

in there and see if you can find the right guy? It’s not

me.”

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She stoops down to the hold, she screams to her

husband, “What are you going to do, just stand there

and look at him. Take him down now.”

Just like that. I got - - I never heard a lady yell

that loud. McDonald, his eyes got big, both of us

spooked to death. We were not expecting that. Her

husband, walks up to me, I got my tablet, the other

hand has my Dorito[]s in it.

He takes me by my collar. He spin moves and

slams me to the ground. I tell him I’m not resisting. I

didn’t do anything. He puts his knee in my back. He

puts me in a choke hold. He got my spine in a U-shape

backwards.

When he put me in a choke hold, he’s shaking

me like a Rottweiler or Pitbull or a small poodle. He

said, “N*gger, I don’t give a damn about my job. I’ll kill

your black a**.” I said to him that I didn’t do anything.

I said, “I can’t breathe. Help me. Let me go.”

S[e]rge[a]nt Sullivan walks in and he says,

“What are you doing? Get off of him right now. Let him

go right now.” I’m gasping for air. I’m crying now. I

said, “I didn’t do anything. I didn’t do anything.”

Id. at 16-18.5

5 Although Plaintiff states in his Complaint that he was found not guilty of the lewd

or lascivious disciplinary report, during his deposition, Plaintiff admitted that he was

found guilty based on the officer’s statement. Doc. 34-11 at 20-21. The disciplinary

report packet confirms he was found guilty of lewd or lascivious exhibition. See Doc.

34-1.

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Plaintiff’s medical records show no identifiable injury was documented

after the use of force. Doc. 34-5 at 13-14. Kelli Caswell, RN, BSN, reviewed

Plaintiff’s medical records and avers, in pertinent part, as follows:

The Plaintiff alleges that on November 18, 2021,

at approximately 6:30 pm, he was involved in a Post

Use of Force (PUOF) incident that resulted in injuries.

Mr. Black was examined by medical at 6:45 p.m. The

PUOF occurrence was described as “The inmate was

placed on the ground and placed in handcuffs.” When

Mr. Black arrived at medical for evaluation, he was

ambulatory, alert, oriented, and responding to

questions verbally. The documentation shows he had

no complaints of pain and there were no injuries noted.

Mr. Black was released to confinement and educated

to return to sick call if needed. The diagram of Injury

also documents that there were no injuries identified.

The Plaintiff alleges that he has structural

damage to his neck. Mr. Black has had an x-ray of his

neck which does not indicate any acute structural

damage. His x-ray documents degenerative disc

disease which can be a normal process of ageing.

The Plaintiff alleges that he has nerve damage

to his neck. There is no indication in the medical

records that Mr. Black has nerve damage to his neck.

The Plaintiff alleges that he is receiving ongoing

treatment for his neck. There is no evidence that Mr.

Black is receiving regular treatment for his neck. He

placed sick calls on December 22, 2021, and April 6,

2022, for complaints of neck and/or back pain. He was

evaluated and treated with Ibuprofen, Tylenol, or a

topical analgesic. The x-ray of his neck which shows

degenerative disc disease can be a cause of chronic

pain. Mr. Black has also been seen with sick calls for

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back and neck pain on February 3, 2023, where he

states his pain is “from an incident on 08/24/2022.”

There is documentation from August 24, 2022, where

Mr. Black was seen by medical, and no injuries or

complaints were noted during the exam. He was

evaluated by medical again on February 27, 2023,

where Mr. Black stated, “pain in lower neck and spine,

I feel like I have a concussion from the incident on

08/24.” Mr. Black was treated with Ibuprofen.

The Plaintiff alleges psychological damage

including anxiety, depression, and paranoia. Mr.

Black is classified as an S-3. This Mental Health

Classification according to Health Services Bulletin

(HSB 150.03.13) states that S-3 is described as

showing moderate impairment in adaptive functioning

due to a diagnosed mental disorder. . . .

Mr. Black is not on any medications for mental

health currently. He is being regularly monitored for

any mental health issues and there is no supporting

evidence that the use of force event on November 18,

2021, has exacerbated his mental health diagnoses.

Mr. Black has been diagnosed with hallucinations and

unspecified psychosis. Mr. Black has also, at times,

refused medications and Mental Health Evaluations.

Doc. 34-10 at 2-4 (paragraph enumeration omitted).

A. Eleventh Amendment Immunity

Defendants argue they are entitled to Eleventh Amendment immunity

to the extent Plaintiff sues them in their official capacities for damages. See

Defendants’ Motion at 7-8. The Eleventh Amendment provides that “[t]he

Judicial power of the United States shall not be construed to extend to any suit

15

in law or equity, commenced or prosecuted against one of the United States by

Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.

Const. amend. XI. It is well-settled that, in the absence of consent, “a suit in

which the State or one of its agencies or departments is named as the

defendant is proscribed by the Eleventh Amendment.” Papasan v. Allain, 478

U.S. 265, 276 (1986) (quotation omitted). The Eleventh Amendment also

prohibits suits against state officials where the state is the real party in

interest, such that a plaintiff could not sue to have a state officer pay funds

directly from the state treasury for the wrongful acts of the state. Summit Med.

Assocs., P.C. v. Pryor, 180 F.3d 1326, 1336 (11th Cir. 1999).

In Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir. 1986) (internal

quotations modified and footnote omitted), the Eleventh Circuit noted:

It is clear that Congress did not intend to

abrogate a state’s eleventh amendment immunity in

section 1983 damage suits. Quern v. Jordan, 440 U.S.

332, 340-45 (1979). Furthermore, after reviewing

specific provisions of the Florida statutes, we recently

concluded that Florida’s limited waiver of sovereign

immunity was not intended to encompass section 1983

suits for damages. See Gamble v. Fla. Dep’t of Health

& Rehab. Serv., 779 F.2d 1509, 1513-20 (11th Cir.

1986).

Accordingly, in Zatler, the court found that the Secretary of the FDOC was

immune from suit in his official capacity. Id. Thus, insofar as Plaintiff seeks

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monetary damages from Defendants in their official capacities, the Eleventh

Amendment bars suit. Defendants’ Motion is due to be granted to the extent

that Plaintiff requests monetary damages from Defendants in their official

capacities.

B. Excessive Force – R. Molinski

Defendants argue that R. Molinski’s use of force “was reasonable and

necessary under the circumstances.” Defendants’ Motion at 8. Plaintiff argues

that the force was wholly unnecessary because he was not ordered to cuff up,

he did not take an aggressive stance toward McDonald, and he could not have

clenched his fists because he was holding a tablet in one hand and a bag of

Doritos in the other hand. See Doc. 43-1 at 5-7.

The Eighth Amendment prohibits “cruel and unusual punishments.”

U.S. Const. amend. VIII. “In evaluating an excessive force claim, [courts]

adhere to two equally important principles. The first is that unreasonable or

unnecessary force does not necessarily constitute excessive force . . . . The

second is that even though the Constitution does not require comfortable

prisons, it does not permit inhumane ones.” Williams v. Radford, 64 F.4th

1185, 1196 (11th Cir. 2023) (citations and quotations omitted). “Under the

Eighth Amendment, force is deemed legitimate in a custodial setting if it is

‘applied in a good-faith effort to maintain or restore discipline’ and not

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‘maliciously and sadistically to cause harm.’” Sears, 922 F.3d at 1205 (quoting

Hudson v. McMillian, 503 U.S. 1, 7 (1992)). “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.’” Sconiers v. Lockhart, 946 F.3d 1256, 1265

(11th Cir. 2020) (quoting Hudson, 503 U.S. at 8).

In determining whether force was used

“maliciously and sadistically,” we consider: (1) “the

need for the application of force”; (2) “the relationship

between the need and the amount of force that was

used”; (3) “the extent of the injury inflicted upon the

prisoner”; (4) “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”6]; and (5) “any efforts made to temper the

severity of a forceful response.” Cockrell v. Sparks, 510

F.3d 1307, 1311 (11th Cir. 2007) (quotation marks

omitted). “Not only that, but we must also give a wide

range of deference to prison officials acting to preserve

discipline and security, including when considering

decisions made at the scene of a disturbance.” Id.

(quotation marks and alteration omitted). The focus of

our Eighth Amendment inquiry is on the nature of the

force applied, not on the extent of the injury inflicted.

Wilkins v. Gaddy, 559 U.S. 34, 37-38 (2010).

6 Williams, 64 F.4th at 1196.

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Sears, 922 F.3d at 1205. Indeed, “[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.” Charles v. Johnson, 18 F.4th 686, 700 (11th Cir. 2021)

(citations omitted). Nevertheless, “[u]nless it appears that the evidence, viewed

in the light most favorable to the plaintiff, will support a reliable inference of

wantonness in the infliction of pain[,] . . . the case should not go to the jury.”

Whitley v. Albers, 475 U.S. 312, 322 (1986).

R. Molinski avers that force was necessary “to overcome Inmate Black’s

physical resistance to Officer McDonald’s lawful commands.” According to R.

Molinski, he witnessed Plaintiff refuse multiple orders to submit to hand

restraints, clench his fists, and step aggressively toward McDonald. On the

other hand, while Plaintiff acknowledges that he did not enter the holding cage

when directed, he testified at his deposition that they were having a normal

conversation, he was not ordered to cuff up, he did not act aggressively, and he

could not have clenched his fists because he had items in his hands. Plaintiff

further avers that R. Molinski aggressively slammed Plaintiff to the ground

because S.M. Molinski yelled at R. Molinski to do so, and that after he was on

the ground, R. Molinski placed him in a chokehold, bent him backwards, placed

19

his knee in Plaintiff’s back, and shook him while using a racial slur and

threatening to kill Plaintiff.

The video evidence does not clearly support or refute either side’s

position, and 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.”). While the evidence confirms that Plaintiff did not suffer a more than

de minimis physical injury, “[a]n 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 38.

There are simply too many factual disputes for the Court to resolve this

claim on summary judgment. Accordingly, Defendants’ Motion is due to be

denied to the extent it seeks entry of summary judgment on Plaintiff’s Eighth

Amendment claim against R. Molinski.

C. Qualified Immunity – R. Molinski

Defendants argue that R. Molinski is entitled to qualified immunity on

Plaintiff’s Eighth Amendment claim. See Defendants’ Motion at 13-17.

According to Defendants, “R. Molinski reasonably believed, based on his

personal observations, that Plaintiff was going to attack Officer McDonald,”

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and thus he was justified in using physical force to overcome Plaintiff’s

physical resistance to a lawful command. Id. at 15.

Qualified immunity shields government

employees from suit in their individual capacities for

discretionary actions they perform while going about

their duties. The thought behind the doctrine is the

“balanc[ing of] two important public interests: ‘the

need to hold public officials accountable when they

exercise power irresponsibly and the need to shield

officials from harassment, distraction, and liability

when they perform their duties reasonably.’” Davis v.

Waller, 44 F.4th 1305, 1312 (11th Cir. 2022) (quoting

Pearson v. Callahan, 555 U.S. 223, 231 (2009)). Under

the balance that qualified immunity strikes, “all but

the plainly incompetent or those who knowingly

violate the law” enjoy its protection. Malley v. Briggs,

475 U.S. 335, 341 (1986).

To determine whether qualified immunity

applies, [courts] engage in a burden-shifting analysis.

See Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.

2002). At the first step, the public-employee defendant

must show that he was acting within the scope of his

discretionary authority when he committed the

challenged acts. Once the defendant does that, the

burden shifts to the plaintiff, who must show that

qualified immunity is not appropriate. Id. To do that,

the plaintiff must establish two things: (1) the

defendant violated a constitutional right, and (2) that

constitutional right was “clearly established” at the

time of the defendant’s actions. Powell v. Snook, 25

F.4th 912, 920 (11th Cir. 2022).

A plaintiff can show that a violation is “clearly

established” in any of three ways: (1) by relying on a

“materially similar decision of the Supreme Court, of

this Court, or of the supreme court of the state in

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which the case arose;” (2) by invoking “‘a broader,

clearly established principle [that] control[s] the novel

facts’ of the case;” or (3) by persuading [the court] that

the officer’s acts “so obviously violate[ ] th[e]

[C]onstitution that prior case law is unnecessary.” Id.

(citation omitted). If a plaintiff proceeds under the first

or second method, he must point to a court decision.

Id. The second and third methods require “obvious

clarity.” Id. That is, the principle must be so apparent

that, even without a case with similar facts to light the

way, any competent officer would know that his

conduct crossed the line. See id. In sum, the “clearly

established” part of the qualified-immunity inquiry

asks whether the law when the officer engaged in the

challenged conduct gave him “‘fair warning’ that his

conduct was unlawful.” Id. at 921 (citation omitted).

Courts have “discretion to decide which of the

two prongs of [the] qualified-immunity analysis to

tackle first.” Ashcroft v. alKidd, 563 U.S. 731, 735

(2011). And since a plaintiff must show both prongs to

overcome qualified immunity, if the prong the court

considers first is not satisfied, the court need not

consider the other prong because the officer is entitled

to qualified immunity, regardless. Pearson, 555 U.S.

at 236.

Brooks v. Miller, 78 F.4th 1267, 1279-80 (11th Cir. 2023) (internal citations

modified).

Here, there is no dispute that during the incident, Defendant R. Molinski

was acting within the scope of his discretionary authority as an employee of

the FDOC. Thus, the burden shifts to Plaintiff to show that R. Molinksi is not

entitled to qualified immunity.

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Considering the evidence presented in the light most favorable to

Plaintiff,7 the Court finds that R. Molinski is not entitled to qualified

immunity. If a jury were to believe Plaintiff’s version of events, the jury could

reasonably find that R. Molinski violated Plaintiff’s clearly established

constitutional right to be free from cruel and unusual punishment. Indeed,

according to Plaintiff, R. Molinski’s reasons for using force were unjustified

because Plaintiff did not resist any orders to submit to hand restraints and he

did not take an aggressive stance toward McDonald. Instead, Plaintiff

contends that R. Molinski aggressively slammed Plaintiff to the ground in

response to his wife’s (S.M. Molinski) direction to take Plaintiff down. After

taking Plaintiff to the ground, Plaintiff asserts that the excessive force

continued even though Plaintiff stated he was not resisting. “The basic legal

principle is that once the necessity for the application of force ceases, any

continued use of harmful force can be a violation of the Eighth and Fourteenth

Amendments, and any abuse directed at the prisoner after he terminates his

resistance to authority is an Eighth Amendment violation.” Williams v.

7 See Hinson v. Bias, 927 F.3d 1103, 1118 (11th Cir. 2019) (“As we have noted, we

view all facts and draw all reasonable inferences in favor of the non-moving party

when reviewing a summary-judgment ruling. This means that we normally take as

true the testimony of the non-moving party and adopt his version of the facts in a

qualified-immunity case.”).

23

Burton, 943 F.2d 1572, 1576 (11th Cir. 1991). Accordingly, R. Molinski’s

request for qualified immunity is due to be denied.

D. Failure to Intervene – S.M. Molinski

Defendants contend that Plaintiff fails to show that Defendant S.M.

Molinski failed to intervene in R. Molinski’s use of force. Indeed, Defendants

assert that S.M. Molinski did not witness the use of force, and even if she had,

she was not in a position to physically or verbally intervene. See Defendants’

Motion at 17-19; see also Doc. 34-2 at 3.

“‘[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.’” Williams, 64 F.4th at 1199 (quoting Velazquez v.

City of Hialeah, 484 F.3d 1340, 1341 (11th Cir. 2007))). Liability for failure to

intervene “only arises when the officer is in a position to intervene and fails to

do so.” Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 924 (11th Cir. 2000).

The parties agree that S.M. Molinski was inside the officer station when

the incident occurred. S.M. Molinski avers that she could not have left the

officer station until another officer relieved her. Plaintiff has not presented any

evidence to contradict S.M. Molinski’s sworn statement that she was not in a

position to physically intervene. Indeed, Plaintiff acknowledged during his

deposition that when an officer is inside the officer station, they do not leave.

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See Doc. 34-11 at 29 (“His wife [(S.M. Molinski)] was still in the booth. When

you’re in the booth, you don’t leave the booth.”).

Plaintiff, however, argues that the use of force occurred because S.M.

Molinski told R. Molinski to take Plaintiff down, and thus, she should have

verbally intervened to stop the use of force. See Doc. 43-1 at 9. However, S.M.

Molinski avers that she did not witness the force. According to Plaintiff’s

allegations, R. Molinski took him to the ground chest down. And the video

shows that when Plaintiff was being taken down, he was facing away from the

officer station and once on the ground, his feet (rather than his head) were

shown facing the officer station. Thus, Plaintiff was not in a position to see

whether S.M. Molinski was watching.8 Considering the evidence presented,

even in the light most favorable to Plaintiff, the Court finds that Defendants’

Motion is due to be granted to the extent it seeks summary judgment on

Plaintiff’s failure to intervene claim against S.M. Molinski.

8 In one of Plaintiff’s Responses he states that S.M. Molinski ran “away from the

window flap as her husband . . . use[d] excessive force on Plaintiff, which she should

have stayed right there and first tried to verbally instruct [R. Molinski] to get off of

Plaintiff.” Doc. 43-1 at 9. This would corroborate S.M. Molinski’s statement that she

did not witness the use of force.

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E. Compensatory Damages

Defendants argue that Plaintiff’s claim for compensatory damages is

barred because Plaintiff did not receive a more than de minimis physical injury

from the use of force. See Defendants’ Motion at 19-24.

Pursuant to § 1997e(e), “[n]o Federal civil action may be brought by a

prisoner confined in a jail, prison, or other correctional facility, for mental or

emotional injury suffered while in custody without a prior showing of physical

injury or the commission of a sexual act.” To satisfy § 1997e(e), a prisoner must

assert physical injury that is more than de minimis. However, the injury does

not need to be significant. See Thompson v. Sec’y, Fla. Dep’t of Corr., 551 F.

App’x 555, 557 (11th Cir. 2014) (citation omitted). Thus, a prisoner may not

recover compensatory damages for mental or emotional injuries absent any

physical injuries, but he may recover punitive and nominal damages without

showing any physical injury. See Hoever v. Marks, 993 F.3d 1353 (11th Cir.

2021); see also Ketchup v. Barr, No. 21-10510, 2021 WL 3360959, at *2 (11th

Cir. Aug. 3, 2021) (recognizing that “42 U.S.C. § 1997e(e) bars prisoners from

seeking compensatory damages absent a showing of ‘more than de minimis’

physical injury but does not bar nominal damages.” (quoting Brooks v. Warden,

800 F.3d 1295, 1307-08 (11th Cir. 2015)).

26

Plaintiff alleges that he “sustained structural and nerve damage to his

neck,” “psychological damage (anxiety, depression, paranoia, etc.),” and

“persistent upper back pain.” Complaint at 7. Defendants have shown,

however, through Nurse Caswell’s Declaration and Plaintiff’s pertinent

medical records, that he did not suffer a more than de minimis physical injury

as a result of the use of force.

Plaintiff’s medical records show that he was evaluated for pain in his

neck and upper back on December 22, 2021, but no injuries were noted. Doc.

34-9 at 4; see also id. at 6 (noting that Plaintiff was “compla[in]ing of an old

neck and back pain from Novem[b]er at times. Stated he wanted

documentation for a lawsuit.”). He was evaluated again on February 3, 2022,

and March 3, 2022, for complaints of neck and back pain. Doc. 34-9 at 17, 23.

Plaintiff was instructed to take ibuprofen or acetaminophen. Id.

On March 30, 2022, Plaintiff submitted a sick-call request complaining

of pain in his lower neck, upper back, and lower back which began on

November 23, 2021. Doc. 34-9 at 40. He also complained of pain in his feet and

ankles that began one year prior. Id. Then on April 6, 2022, Plaintiff was seen

by medical and he complained that he had back pain every day and could

“barely get to the chow hall,” and his “feet and ankles hurt when [he] walk[s].”

Doc. 34-9 at 35. He reported that the pain began in November after he was

27

“slammed on the ground by an officer.” Id. Plaintiff was prescribed a topical

analgesic and ibuprofen. Id. at 35-36.

On April 20, 2022, medical staff examined Plaintiff due to his complaints

of lower back pain and x-rays were ordered. Id. at 46. The x-rays of Plaintiff’s

lumbar spine showed “[n]o acute fracture, listhesis, or spondylolysis. There is

minimal multilevel degenerative disc disease and facet arthropathy.” Id. at 53.

The x-rays of his cervical spine also showed no “acute fracture” but Plaintiff

has “[d]egenerative disc disease . . . throughout the cervical spine.” Id. at 55.

On August 24, 2022, Plaintiff was seen by medical staff but no injury

was noted and Plaintiff denied any complaints. Doc. 34-9 at 127. On October

13, 2022, Plaintiff was scheduled for a follow-up examination to discuss his

hemoccult results, neck pain issues, and results of his x-rays from April 2022.

Id. at 139. On that day, Plaintiff indicated that he was still having neck pain

“every now and then.” Id.

Notably, prior to the use of force at issue in this case, on February 16,

2021, Plaintiff submitted an inmate request asking that medical staff get his

records from an outside doctor who treated him for a back injury resulting from

a car accident in 2016. Id. at 264. He stated that he had surgery on his “lower

middle neck and lower middle back and had [his] nerve endings burned in [his]

lower neck and lower back.” Id. He indicated that he was trying to get a low

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bunk pass “due to the fact that it hurts [his] neck and [his] back when [he has]

to jump in and out of the top bunk at the age of 50 and having a neck and back

injury recently.” Id.; see also id. at 235 (sick-call request dated May 1, 2021,

containing similar information about Plaintiff’s car accident and prior back

surgery, along with complaints of severe back pain), 265, 267, 268 (similar

inmate requests dated April 18, 2021; July 18, 2021; and September 21, 2021,

respectively).

After reviewing Plaintiff’s medical records, Caswell opined that

Plaintiff’s x-ray of his neck does not indicate any acute structural damage,

there is no indication in his medical records that he suffered nerve damage in

his neck, nor is there any indication that he is receiving ongoing treatment for

his neck. Notably, Caswell states that the degenerative disc disease in

Plaintiff’s neck can be a cause of chronic pain.

Plaintiff has neither addressed Defendants’ argument in his Responses

nor has he pointed to any evidence to refute his medical records or Caswell’s

Declaration which show that he did not suffer a more than de minimis physical

injury as a result of R. Molinski’s use of force. Thus, Plaintiff cannot recover

compensatory damages. Therefore, Defendants’ Motion is due to be granted to

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the extent Plaintiff’s claim for compensatory damages will be dismissed

without prejudice.9

F. Nominal Damages

The portion of Defendants’ Motion addressing nominal damages is

clearly copied from another case. See Defendants’ Motion at 24-25 (referring to

“Defendant Inch” and plaintiff’s request for “[n]ominal damages of $5,000”

while citing to “Doc. 21 at 28,” when Inch is not a defendant in this case,

Plaintiff did not request $5,000 in nominal damages in his Complaint, and Doc.

21 is a 2-page notice advising the Court that Defendants complied with its

Order). Thus, Defendants’ Motion is due to be denied in that regard.

V. Analysis of Plaintiff’s Motion

In Plaintiff’s Motion, he lists facts that he claims are not in dispute, and

then argues that he “has met his evidentiary burden [because] the preserved

surveillance video provides undisputable proof that the force used on

Plaintiff . . . was unnecessary, excessive, and unconstitutional.” Plaintiff’s

Motion at 4. Defendants argue that Plaintiff fails to support his allegations

with any evidence, and they attach a declaration from another inmate who

9 This finding does not affect Plaintiff’s claim for punitive damages.

30

states that when he was helping Plaintiff draft the Complaint, the inmate

embellished the facts to avoid dismissal. See generally Defendants’ Response.

Upon due consideration, the Court finds that Plaintiff’s Motion is due to

be denied. As explained above, the video evidence does not clearly show that

the force used was unnecessary or unconstitutional. There are genuine issues

of material fact that preclude entry of summary judgment. Thus, Plaintiff’s

Motion is due to be denied.

Accordingly, it is

ORDERED:

1. Plaintiff’s Motion for Extension of Time (Doc. 53) and Motion for

Extension of Time to Send Preserved Documentations/Letters of

Communication Between Plaintiff and Any Witnesses (Doc. 54) are DENIED.

2. Defendants’ Motion for Summary Judgment (Doc. 34) is

GRANTED in part and DENIED in part. The Motion is GRANTED to the

extent that Defendants are entitled to Eleventh Amendment immunity on

Plaintiff’s request for monetary damages from Defendants in their official

capacities; Defendant S.M. Molinski is entitled to entry of summary judgment

in her favor on Plaintiff’s failure to intervene claim; and Plaintiff’s request for

compensatory damages is dismissed without prejudice. Judgment to that effect

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is withheld pending adjudication of the remaining claim against R. Molinski.

See Fed. R. Civ. P. 54. The Motion is otherwise DENIED.

3. Plaintiff's Motion for Summary Judgment (Doc. 39) is DENIED.

4, Plaintiff and Defendant R. Molinski shall confer in good faith

regarding settlement of the remaining claim. 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 case, no

later than April 30, 2024, Plaintiff and Defendant R. Molinski shall each file

a notice advising whether a settlement conference with a United States

Magistrate Judge may be beneficial.

DONE AND ORDERED at Jacksonville, Florida, this 224 day of

March, 2024.

fo Jton—_| ,/. 4avn—

. BRIAN/J, DAVIS

United States District Judge

JAX-3 3/21

Everette L. Black, Jr., #364497

Counsel of Record

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