MENDOZA v. DIXON

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

GEORGE RICHARD

MENDOZA,

Plaintiff,

v. Case No.: 4:20cv214-MW/MAF

RICKY D. DIXON, SEC’Y

FLORIDA DEP’T OF CORR.,

et al.,

Defendants.

_________________________/

ORDER ACCEPTING IN PART AND REJECTING IN PART

REPORT AND RECOMMENDATION

This Court has considered, without hearing, the Magistrate Judge’s Report

and Recommendation, ECF No. 197, and has also reviewed de novo Plaintiff’s

objections, ECF No. 198. For the reasons that follow, the Report and

Recommendation is ACCEPTED in part and REJECTED in part. Defendants’

motion for summary judgment, ECF No. 175, is GRANTED in part and DENIED

in part.

Plaintiff’s primary objection is that he raised genuine disputes of material fact

that should preclude summary judgment on his Eighth Amendment failure-to-protect

claim and his First Amendment retaliation claims. ECF No. 198 at 6–7. While a

close call, this Court agrees. Plaintiff has raised genuine disputes of material fact on

both claims, so this Court rejects the Magistrate Judge’s recommendation that

Defendants be awarded summary judgment on those grounds. This Court also rejects

the Magistrate Judge’s recommendation that Defendants be entitled to qualified

immunity. This Court accepts, however, the remainder of the Magistrate Judge’s

recommendations.

I

Summary judgment is appropriate when “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). A dispute is “ ‘genuine’ . . . if the evidence is

such that a reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Material” facts are those

that might affect the outcome of the case under the governing substantive law, not

those that “are irrelevant or unnecessary.” Id. (citation omitted). Failure by the

nonmoving party to prove an essential element of its case, for which it has the burden

of proof at trial, entitles the moving party to summary judgment. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986).

A

First, Plaintiff’s Eighth Amendment deliberate indifference claim against

Defendants Mote and Tom. The Magistrate Judge recommended that Defendants be

awarded summary judgment because Plaintiff failed to point to any facts indicating

that Defendants knew “Mendoza (or anyone) faced a substantial risk of serious harm

that was more than just a mere possibility of serious harm.” ECF No. 197 at 24. This

Court disagrees and finds that Plaintiff raises a genuine dispute of material fact as to

all elements of his failure-to-protect claim.

A prison official’s alleged failure to protect an inmate from a substantial risk

of harm violates the Eighth Amendment when the official acts with deliberate

indifference. “To survive summary judgment in a case alleging deliberate

indifference, a plaintiff must ‘produce sufficient evidence of (1) a substantial risk of

serious harm; (2) the defendants’ deliberate indifference to that risk; and (3)

causation.’ ” Goodman v. Kimbrough, 718 F.3d 1325, 1331 (11th Cir. 2013) (quoting

Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003) (per curiam)).

Plaintiff has shown a genuine dispute of material fact on the substantial risk

of serious harm element. In his sworn complaint, which this Court must consider for

purposes of summary judgment, see Sears v. Roberts, 922 F.3d 1199, 1208 (11th

Cir. 2019),1 Plaintiff alleges that at the time he was assaulted, he was housed with

security-threat inmates in gangs that target transgender and gay individuals with

violence. ECF No. 33 at 8; see also ECF No. 175-3 at 32. Plaintiff is transgender

1 The Report and Recommendation states “that to successfully contest a summary judgment

supported by evidence, [Plaintiff] must provide his own evidence and cannot rely solely on the

allegations in his complaint or other pleadings.” That’s partly correct—Plaintiff does have to come

forward with evidence at the summary judgment stage if Defendants show an absence of any

genuine disputes of material fact. But factual allegations in a sworn complaint—like Plaintiff

provides here, see ECF No. 33 at 23—are evidence that must be considered on summary judgment.

and gay. ECF No. 33 at 9. From this testimony, this Court finds that a reasonable

jury could conclude that Plaintiff faced a substantial risk of serious harm when he

was placed with other inmates that were both (1) demonstrated security threats and

(2) in gangs that target transgender and gay inmates.

Plaintiff also comes forward with sufficient evidence to create a genuine

dispute of material fact as to the deliberate indifference element. At the summary

judgment stage, Plaintiff must point to evidence showing Defendants Mote and

Tom’s “(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk;

(3) by conduct that is more than gross negligence.” Goodman, 718 F.3d at 1331–32

(quoting Townsend v. Jefferson Cnty., 601 F.3d 1152, 1158 (11th Cir. 2010)).

Proof of deliberate indifference requires a great deal more than does

proof of negligence: “To be deliberately indifferent a prison official

must know of and disregard ‘an excessive risk to inmate health or

safety; the official must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists, and he

must also draw the inference.’ ” Purcell, 400 F.3d at 1319–20

(emphasis supplied) (quoting Farmer v. Brennan, 511 U.S. 825, 837,

114 S.Ct. 1970, 1979, 128 L.Ed.2d 811 (1994)).

Goodman, 718 F.3d at 1332. “Whether prison officials had the requisite awareness

of the risk ‘is a question of fact subject to demonstration in the usual ways, including

inference from circumstantial evidence, and a factfinder may conclude that a prison

official knew of a substantial risk from the very fact that the risk was obvious.’ ” Id.

(quoting Farmer, 511 U.S. at 842).

By the slenderest of reeds, Plaintiff has come forward with sufficient evidence

to show that Defendants had the requisite awareness of his substantial risk of harm.2

As set out above, Plaintiff makes sworn factual allegations that illustrate an obvious

danger that transgender, gay inmates like Plaintiff face when housed with high-risk

inmates in allegedly notorious gangs that target such prisoners with violence.

Plaintiff also alleges that, after he reported the assault, Defendants Mote and Tom

commented that Plaintiff would not have been attacked if he were not gay. ECF No.

33 at 11; ECF No 175-3 at 19, 29.3 Despite this apparent knowledge of the dangerous

conditions in Plaintiff’s housing unit, Defendants Mote and Tom failed to man their

posts, leaving Plaintiff and another inmate subject to attack from the high-risk

inmates. See ECF No. 175-3 at 25–26. This obvious risk, combined with Defendants

2 The Report and Recommendation recites the standard for accepting the version of events

shown on Defendants’ surveillance footage rather than Plaintiff’s testimony, and it describes the

footage as well. ECF No. 197 at 8, 23. The Report and Recommendation did not, however, make

any finding that the video footage should be accepted over Plaintiff’s competing narrative. This

Court finds that the video footage cannot be accepted over Plaintiff’s testimony because, while

there are inconsistencies between the two, they are not so serious as to “utterly discredit” Plaintiff’s

testimony so that no reasonable jury could believe it. See Brooks v. Miller, --- F.4th ---, 2023 WL

5355022, at *6 (11th Cir. 2023). Importantly, as the Report and Recommendation notes, the

footage comes from a camera with a fixed angle and does not show the area where the assault

allegedly occurred. This leaves substantial portions of Plaintiff’s testimony uncontroverted by the

video.

3At his deposition, Plaintiff alleges that both Defendant Mote and Defendant Tom made

comments to this effect, ECF No. 175-3 at 19, before noting later that Defendant Tom was not

present for some part of the exchange, id. at 29. While these allegations could be read to contradict

each other, this Court must view the evidence in the light most favorable to Plaintiff as the non-

movant and draw all reasonable inferences in his favor. From this testimony, this Court draws the

reasonable inference that both Defendants made comments regarding Plaintiff’s sexuality and its

role in his attack, with Defendant Mote making additional comments separate from Defendant

Tom at some point in the exchange.

Mote and Tom’s alleged statements after Plaintiff’s attack implying they knew of

his risk, would permit a reasonable jury to find that Defendants Mote and Tom had

subjective knowledge of a risk of serious harm and disregarded that risk by conduct

that was more than negligent.

Finally, Plaintiff has produced sufficient record evidence to create a genuine

dispute of material fact on the causation element of his deliberate indifference claim.

In his deposition, Plaintiff explains that the unmanned guard station was surrounded

by glass and “feet away” from the bathroom where he was assaulted. ECF No. 175-

3 at 27. While Plaintiff does not estimate how long the assault in the bathroom took

place, the assault involved other inmates taking the few items in Plaintiff’s

possession, forcing him to disclose the passcode to his locker, dispatching other

inmates to steal items from Plaintiff’s locker, receiving confirmation that the locker

had been cleared out, and moving Plaintiff to a different area of the bathroom to

sexually assault him. In plain terms, this was not a brief incident. From this evidence,

a reasonable jury could conclude that if Defendants Mote and Tom had been at their

duty stations, Plaintiff would not have been assaulted.

Accordingly, Defendants’ motion for summary judgment as to Plaintiff’s

Eighth Amendment claim fails because he has made out genuine disputes of material

fact as to all three elements of the claim.

B

Next, Plaintiff’s First Amendment retaliation claim against Defendant Cruz.

The Magistrate Judge recommended that Defendant Cruz be awarded summary

judgment because Plaintiff failed to come forward with evidence that he suffered an

adverse effect. ECF No. 197 at 25–26. This Court disagrees and finds that Plaintiff

raises a genuine dispute of material fact as to all elements of his retaliation claim.

“An inmate may maintain a cause of action for retaliation under 42 U.S.C. §

1983 by showing that a prison official’s actions were ‘the result of [the inmate’s]

having filed a grievance concerning the conditions of his imprisonment.’ ” O’Bryant

v. Finch, 637 F.3d 1207, 1212 (11th Cir. 2011) (quoting Farrow v. West, 320 F.3d

1235, 1248 (11th Cir. 2003)). To prevail on a retaliation claim, an inmate must

establish that: “(1) his speech was constitutionally protected; (2) the inmate suffered

adverse action such that the [official’s] allegedly retaliatory conduct would likely

deter a person of ordinary firmness from engaging in such speech; and (3) there is a

causal relationship between the retaliatory action [the disciplinary punishment] and

the protected speech [the grievance].” O’Bryant, 637 F.3d at 1212 (quoting Smith v.

Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008)).

Plaintiff points to sufficient evidence on the first element, noting that he

reported his assault to corrections officers and filled out a written statement. ECF

No. 175-3 at 11–12. Lodging such a grievance with prison officials “is

unquestionably a constitutionally protected act.” Bates v. Anderson, No. CV210-

088, 2011 WL 2550466, at *4 (S.D. Ga. May 9, 2011), report and recommendation

adopted, No. CV210-088, 2011 WL 2550365 (S.D. Ga. June 27, 2011).

Plaintiff also comes forward with enough evidence to raise a genuine dispute

of material fact on the second element of his retaliation claim—that a person of

ordinary firmness would likely be deterred from reporting his sexual assault. This

standard is an objective one, focusing not on whether Plaintiff was deterred, but

instead on whether a person of ordinary firmness would be deterred from engaging

in protected speech. See Bennett v. Hendrix, 423 F.3d 1247, 1254 (11th Cir. 2005);

Hall v. Martin, No. 5:19-CV-471-TKW/MJF, 2021 WL 2420149, at *5 (N.D. Fla.

May 21, 2021), report and recommendation adopted, No. 5:19-CV-471-TKW/MJF,

2021 WL 2416372 (N.D. Fla. June 14, 2021).

Here, Plaintiff submits evidence showing that after he reported his sexual

assault at the hands of other inmates, Defendant Cruz slapped him several times, all

while Plaintiff was restrained, and directed him to withdraw his report. ECF No. 33

at 16; ECF No. 175-3 at 20–21. In Plaintiff’s telling, Defendant Cruz also threatened

to “to have an inmate put in the cell with [Plaintiff] to get [him] beat up . . . .” ECF

No. 175-3 at 20. After this interaction, Plaintiff was placed in protective custody,

meaning that no other inmates should have been housed with him.4 See id. at 22–23.

Nevertheless, an inmate was soon placed in Plaintiff’s cell. Id. The inmate was larger

in size than Plaintiff and was awaiting reassignment following a disciplinary issue

in another facility that prompted a use of force from correctional officers. Id.

In sum, Plaintiff submitted sworn allegations and testimony describing

Defendant Cruz physically assaulting him, demanding that he withdraw his report

of sexual assault, and threatening to assign an inmate to be housed with Plaintiff and

beat him up. After this exchange, an inmate was placed in Plaintiff’s cell, despite his

being in protective custody, in line with Defendant Cruz’s threat. Defendant Cruz’s

alleged battery of Plaintiff, his threats, and his attempt to carry out the threat would

permit a reasonable jury to find that a reasonable person would be deterred from

reporting a sexual assault to prison officials.5

4 Defendants insist that under FDC policy, both Plaintiff and the inmate assigned to be

housed with him following his assault were in administrative confinement and thus, their being in

the same cell was proper. ECF No. 175 at 40–41. The cited FDC policy permits inmates to be

placed in administrative confinement together before being moved to disciplinary or protective

confinement. Id. Plaintiff, however, alleges that when the inmate was improperly housed with him

after he reported the assault, he was already in protective confinement, see ECF No. 175-3 at 22,

so this policy would not apply to him. And at this stage, this Court must accept Plaintiff’s testimony

as true, so FDC’s policy does not defeat Plaintiff’s retaliation claim.

5 The Report and Recommendation asserts that Plaintiff’s retaliation claim fails in part

because it relies on being placed in confinement in violation of prison regulations. ECF No. 197

at 28. Citing the Supreme Court’s decision in Wilkinson v. Austin, 545 U.S. 209, 221 (2005), the

Report and Recommendation explains that as a prisoner, Plaintiff has no right to any particular

housing assignment. This assertion is misplaced. Although the Supreme Court in Wilkinson held

that “the Constitution itself does not give rise to a liberty interest in avoiding transfer to more

adverse conditions of confinement” under the Due Process Clause, it explained that “a liberty

interest in avoiding particular conditions of confinement may arise from state policies or

The Report and Recommendation emphasizes that, based on Defendants’

records, Plaintiff’s timeline of events is inaccurate and that Defendant Cruz could

not have assigned an inmate to be housed with Plaintiff because he was not working

when the inmate arrived at the subject facility. ECF No. 197 at 27. True, this

evidence casts doubt on Plaintiff’s version of events and may indicate that Defendant

Cruz did not retaliate against Plaintiff for reporting a sexual assault. But at the

summary judgment stage, this Court must take Plaintiff’s evidence as true and draw

all justifiable inferences in his favor. See Anderson, 477 U.S. at 255. Here, Plaintiff’s

sworn allegations in his complaint and deposition testimony raise a genuine dispute

of material fact as to whether a reasonable person would be deterred from engaging

in protected conduct following Defendant Cruz’s alleged actions.

Plaintiff also comes forward with sufficient evidence on the causal connection

element of his retaliation claim. “To establish causation, the plaintiff must show that

the defendant was ‘subjectively motivated to discipline’ the plaintiff for exercising

his First Amendment rights.” Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir.

2011) (quoting Smith v. Mosley, 532 F.3d 1270, 1278 (11th Cir. 2008)). Here, as set

out above, Plaintiff avers that Defendant Cruz made specific threats linking the

promised harm to his sexual assault report. Plaintiff also alleges that Defendant Cruz

regulations . . . .” 545 U.S. at 221. Setting aside this distinction, Plaintiff’s claim involves First

Amendment retaliation, and courts regularly find that changes in inmate housing can qualify as an

adverse effect. See Hall, 2021 WL 2420149 at *5 (collecting cases).

interspersed his demands that Plaintiff withdraw the sexual assault report with

physical strikes. This sequence of events would permit a reasonable jury to find that

Defendant Cruz was motivated to discipline Plaintiff for exercising his First

Amendment right to report a sexual assault.6 Accordingly, Plaintiff has

demonstrated a genuine dispute of material fact as to all three elements of his First

Amendment retaliation claim, and Defendant Cruz’s motion for summary judgment

on this claim fails.

II

Having addressed Defendants’ motion for summary judgment on its merits,

this Court must now turn to whether Defendants are entitled to qualified immunity.

Qualified immunity is a shield from liability for government actors, prohibiting

“civil damages for torts committed while performing discretionary duties unless

their conduct violates a clearly established statutory or constitutional right.” Hadley

v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008) (citing Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). An official asserting qualified immunity must first prove that

he or she was acting within the scope of his or her “discretionary authority at the

time of the alleged constitutional violation.” Morris v. Town of Lexington, 748 F.3d

6 In their motion for summary judgment, Defendants make no argument and point to no

evidence that Cruz would have taken the same alleged actions against Plaintiff even if he had not

filed a sexual assault report. Cf. Mosley, 532 F.3d at 1278 (noting that defendants in a retaliation

case can prevail on summary judgment if they can show that they would have taken the challenged

action even in the absence of a plaintiff’s protected activity).

1316, 1321 n.15 (11th Cir. 2014). Once that threshold is met, the burden shifts to the

plaintiff to establish (1) a violation of a constitutional or statutory right and (2) that

the right was clearly established when the violation in question occurred. See

Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citations omitted).

Defendants are not entitled to qualified immunity. Plaintiff does not dispute

that Defendants acted in their discretionary authority when they committed their

alleged wrongs, and this Court agrees. The burden then shifts to Plaintiff to show

that Defendants violated clearly established constitutional rights. As set out above,

Plaintiff has established that, viewing the facts in the light most favorable to him and

drawing all reasonable inferences in his favor, Defendants violated his First and

Eighth Amendment rights. This leaves this Court to resolve whether the law

supporting Plaintiff’s constitutional claims was clearly established.

One way for Plaintiff to show that the law is clearly established is to point to

a “broader, clearly established principle [that] should control the novel facts [of the]

situation.” Terrell v. Smith, 668 F.3d 1244, 1255 (11th Cir. 2012) (internal citation

omitted). In plain terms, the Supreme Court and the Eleventh Circuit have clearly

established the broad principles that corrections officers cannot act with deliberate

indifference to a substantial risk of violence faced by an inmate nor can they retaliate

against that inmate for filing a grievance. Those broad principles should control the

facts here.

For the Eighth Amendment deliberate indifference claim against Defendants

Mote and Tom, the Supreme Court’s decision in Farmer sets forth the broad

principle that failing to take reasonable steps to protect a transgender inmate when

there is a substantial threat of harm from other inmates violates the Eighth

Amendment. This broad, clearly established principle should have put Defendants

Mote and Tom on notice that, in a dorm where gay and transgender inmates are

housed with security-risk inmates belonging to gangs that target gay and transgender

individuals, abandoning an officer station near the bathroom for at least several

minutes violates the Eighth Amendment. Cf. Scott v. Miami Dade Cnty., 657 F.

App'x 877, 885 (11th Cir. 2016) (holding Farmer established broad principle putting

corrections officers on sufficient notice for qualified immunity purposes that doing

nothing in face of threat to inmate from other inmates violates Eighth Amendment).

For the First Amendment retaliation claim, the Eleventh Circuit’s holding in

Bennett makes clear that, “since at least 1988 . . . it is ‘settled law’ that the

government may not retaliate against citizens for the exercise of First Amendment

rights.” 423 F.3d at 1256. This broad, clearly established principle should have put

Defendant Cruz on notice that physically striking Plaintiff, in addition to threatening

(and apparently attempting) to have an inmate beat Plaintiff up if he did not withdraw

his sexual assault report, qualifies as First Amendment retaliation.

Accordingly, this Court finds that Plaintiff has demonstrated a violation of his

First and Eighth Amendment rights and that these rights were clearly established

when the violations in question occurred. Thus, Defendants are not entitled to

qualified immunity at this stage.

III

This Court finds no error in the remainder of the Magistrate Judge’s

recommendations. Accordingly, this Court adopts the Magistrate Judge’s following

recommendations:

• Defendants’ exhaustion defenses are moot or otherwise untimely;

• Defendants are entitled to Eleventh Amendment immunity from official

capacity claims; and

• Plaintiff’s state law property claims have already been properly dismissed.

IV

This Court is sympathetic to the difficulties corrections officers face in

balancing their duty to protect inmates while also maintaining order, all with limited

resources. This Court also notes that Defendants’ version of events may well be true,

which would doom Plaintiff’s claims. But at the summary judgment stage, this Court

cannot weigh evidence and supplant the role of the factfinder. Here, while a close

call, Plaintiff has come forward with sufficient evidence to defeat Defendants’

motion for summary judgment. Accordingly,

IT IS ORDERED:

1. The Report and Recommendation, ECF No. 197, is ACCEPTED in part and

REJECTED in part.

2. Defendants’ motion for summary judgment, ECF No. 175, is GRANTED in

part and DENIED in part.

3. Defendants’ motion for summary judgment is GRANTED as to their

entitlement to Eleventh Amendment immunity from official capacity claims,

and Plaintiff’s state law property claims have already been properly

dismissed.

4. Defendants’ motion for summary judgment is DENIED as to Plaintiff’s First

Amendment and Eighth Amendment claims, as well as to their entitlement to

qualified immunity.

5. This Court does not direct entry of judgment on the issues decided in this

Order under Federal Rule of Civil Procedure 54(b).

6. The Clerk is DIRECTED to set this matter for a pretrial conference and trial.

SO ORDERED on September 5, 2023.

s/Mark E. Walker ____

Chief United States District Judge