The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 19-23146-CV-BLOOM
MAGISTRATE JUDGE REID
JUAN TUNON-PADRON,
Plaintiff,
v.
PATRICK LEON RIGGINS,
et al.,
Defendants.
/
REPORT OF MAGISTRATE JUDGE
I. Introduction
Plaintiff, Juan Tunon-Padron, has filed a pro se civil rights complaint,
pursuant to 42 U.S.C. § 1983, arising from a July 2017 incident at Everglades
Correctional Institution ("Everglades CI") in which he was unlawfully pepper-
sprayed. [ECF 1, pp. 5-9]. Plaintiff sues the following Defendants: (1) Patrick Leon
Riggins (“Riggins”); (2) Assistant Warden Heron (“Heron”); (3) Lieutenant
Thompson (“Thompson”), and (4) a John Doe Captain, all of which are employees
of Everglades CI. (Id.). He alleges that (1) Riggins used unlawful and excessive
force by maliciously and sadistically spraying Plaintiff and other inmates;
(2) Riggins retaliated by falsifying a disciplinary report; (3) Heron threatened to
retaliate against Plaintiff if he filed a grievance about the incident; and, (4) Heron,
Thompson, and John Doe directly participated in the unlawful use of force or
otherwise stood by and watched, failing to intervene when Riggins used unlawful
and excessive force. [Id., p. 9]. Plaintiff was previously granted pauper status.
[ECF 5].
As discussed below, the complaint should proceed against (1) Riggins on the
unlawful use of force and for falsifying a disciplinary report; and, (2) Heron,
Thompson, and John Doe for directly participating in the unlawful use of force or
for otherwise standing by and watching, failing to intervene when Riggins used
unlawful and excessive force.
This case has been referred to the undersigned for issuance of all preliminary
orders and recommendations to the district court regarding dispositive motions. See
28 U.S.C. § 636(b)(1)(B), (C), Fed. R. Civ. P. 72(b), S.D. Fla. Local Rule 1(f)
governing Magistrate Judges, and S.D. Fla. Admin. Order 2019-02.
II. Factual Allegations
Plaintiff alleges that in July 2017, he was an inmate at Everglades CI, during
a “lock down” following an unrelated stabbing of an orderly. [ECF 1, p. 6]. Between
10 a.m. and 7:00 p.m., Plaintiff claims he and twenty-seven other inmates were
escorted to F-Dorm, the Special Housing Dormitory to secure inmates in conferment
status. [Id.]. At the time, he and the other inmates were located in the Wing 3 sally
port. [Id.]. While there, corrections officers randomly selected Plaintiff and fourteen
other inmates, took them outside the front of F-Dorm, and ordered the inmates down
onto the ground. [Id.].
Plaintiff alleges Riggins threatened the inmates, stating he was going to “beat
your asses today.” [Id., p.7]. Riggins appeared visibly upset as he ordered the
Plaintiff and other inmates to get up off the ground and escorted them to another
location, away from the view of any cameras. [Id.]. Riggins then ordered Plaintiff
and the others to get down on the dirt, in a prone position, with their faces towards
the earth and their hands behind their backs. [Id.]. Riggins then stated he was going
to “pick (5) of those little fuck ups and spray the shit out of them until it kills one of
them.” [Id.].
Plaintiff claims Riggins picked him and four others, ordered them to look up
towards the sky, at which time Riggins began spraying Plaintiff and the others
directly in their faces, eyes, noses, and mouths. [Id.]. Plaintiff alleges Riggins actions
were done maliciously and sadistically, for the sole purpose of causing severe and
unnecessary physical pain and suffering. [Id.]. He maintains that Heron, Thompson,
and John Doe “participated” with Riggins in the unlawful use of force or otherwise
stood by, failing to intervene. [Id., p. 9].
When asked why they were being sprayed, Plaintiff claims he was told it was
because they had “taken their hands off their heads in an effort to reach and pull
Assistant Warden Heron’s legs up from under him.” [Id., pp. 7-8]. Plaintiff alleges
this was false, as he and the others were following orders. [Id., p. 8]. Afterwards,
Plaintiff alleges he received a false disciplinary report designed to “cover up” the
unjustified excessive use of force. [Id]. Plaintiff alleges that Heron threatened to
retaliate against him if he filed a grievance. [Id., pp. 7-8].
He recounts that, although he was allowed to shower, he was forced to put on
the same chemically saturated clothing, and then taken to confinement in Wing 4.
[Id.]. He was not permitted to change clothing during the course of the next 24 hours.
[Id.]. Plaintiff and the others were then transported by van to different institutions,
but not before being warned against filing any grievances. [Id.]. Notwithstanding,
Plaintiff alleges he filed grievances, and that he and the others were denied food for
two to three weeks. [Id.].
As a result of an investigation into the incident, he was summoned to be a
witness in a criminal case filed against Riggins in Miami-Dade County Circuit
Court, Case No. F18-009890, but claims prison officials never transported him to
the court hearing on April 22, 2019. [Id., p. 9].
Plaintiff seeks nominal, compensatory, and punitive damages. [Id.].
III. Standard of Review- 28 U.S.C. §1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), where a plaintiff is proceeding IFP,
the complaint must be dismissed if the court determines that the complaint fails to
state a claim on which relief may be granted. Wright v. Miranda, 740 F. App’x 692,
694 (11th Cir. 2018). In reviewing the complaint under § 1915(e), the court takes
the allegations as true and construes them in the most favorable light. Hughes v. Lott,
350 F.3d 1157, 1159-60 (11th Cir. 2003); Maps v. Miami Dade State Attorney, 693
F. App’x 784, 785 (11th Cir. 2018) (per curiam).
In order to “avoid dismissal for failure to state a claim, a complaint must
contain factual allegations that, when accepted as true, allow the court to draw the
reasonable inference that the defendant is liable for the alleged misconduct.” Wright
v. Miranda, 740 F. App’x 692, 694 (11th Cir. 2018)(citing Waldman v. Conway, 871
F.3d 1283, 1289 (11th Cir. 2017) (per curiam). Although a pro se pleading is
liberally construed, it must still “suggest that there is some factual support for a
claim.” Id.
To state a claim for relief under § 1983, a plaintiff must show that he was
deprived of a federal right by a person acting under color of state law. Griffin v. City
of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). Under § 1915(e)(2)(B)(i),
courts may dismiss as frivolous claims that are “based on an indisputably meritless
legal theory” or “whose factual contentions are clearly baseless” Neitzke v. Williams,
490 U.S. 319, 327 (1989); Denton v. Hernandez, 504 U.S. 25, 31 (1992); Bilal v.
Driver, 251 F.3d 1346, 1349 (11th Cir. 2001).
Furthermore, the same standards govern dismissal for failure to state a claim
under Fed. R. Civ. P. 12(b) and dismissal for failure to state a claim under
§ 1915(e)(2)(B)(ii). Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). Thus,
under 28 U.S.C. § 1915(e)(2)(B)(ii), the court may dismiss a complaint that fails “to
state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009).
The court may also not construct a litigant's legal arguments for him, Small v.
Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993); or “conjure up questions never
squarely presented” to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985). When read liberally, however, a pro se pleadings “should be
interpreted ‘to raise the strongest arguments that [it] suggest[s].’” Graham v.
Henderson, 89 F.3d 75, 79 (2d Cir. 1996)(quoting Burgos v. Hopkins, 14 F.3d 787,
790 (2d Cir. 1994).
IV. Discussion
A. Eighth Amendment Excessive Force Claim
Plaintiff alleges that Riggins assaulted him, spraying him with pepper-spray
while he was on the ground and not resisting. [ECF 1, p. 7]. He further alleges that
Heron, Thompson, and John Doe participated in the unlawful use of force. [Id., p.
8]. The plaintiff has stated an unlawful use of force claim against Riggins, Heron,
Thompson, and John Doe.
Because the plaintiff was a convicted felon at the time of the incident, this
claim is governed by the Eighth Amendment to the U.S. Constitution which
"governs prison officials' use of force against convicted inmates." Campbell v. Sikes,
169 F.3d 1353, 1374 (11th Cir. 1999). “Under the Eighth Amendment, force is
legitimate in a custodial setting as long as it is ‘applied in a good faith effort to
maintain or restore discipline [and not] maliciously and sadistically for the very
purpose of causing harm.’” Stallworth v. Tyson, 578 F. App’x 948, 953 (11th Cir.
2014)(per curiam); Wilkins v. Gaddy, 559 U.S. 34, 37 (2010)(citations omitted).
“Correctional officers in a prison setting can use pepper spray on an inmate, but there
must be a valid penological reasons for such a use of force.” See Williams v.
Rickman, 759 F. App’x 849, 851 (11th Cir. Jan. 2, 2019)(unpub.)(citing Danley v.
Allen, 540 F.3d 1298, 1306 (11th Cir. 2008) and Thomas v. Bryant, 614 F.3d 1288,
1301-02 (11th Cir. 2010)).
Factors to consider when determining whether the use of force was
“malicious” or “sadistic” include: “’(1) the extent of the injury; (2) the need for
application of force; (3) the relationship between that need and the amount of force
used; (4) any efforts made to temper the severity of a forceful response; and (5) the
extent of the threat to the safety of staff and inmates, as reasonably perceived by the
responsible officials on the basis of facts known to them.’” Stallsworth v. Tyson, 578
F. App'x at 953 (citing Campbell v. Sikes, 169 F.3d at 1375). The court gives
“’deference to prison officials acting to preserve discipline and security, including
when considering decisions made at the scene of a disturbance.’” Stallworth v.
Tyson, 578 F. App’x at 953 (quoting Fennell v. Gilstrap, 559 F.3d 1212, 1217 (11th
Cir. 2009)(per curiam). The “focus of the Eighth Amendment inquiry is on the
nature of the force applied, rather than the extent of injury inflicted.” Stallworth v.
Tyson, supra. (citing Wilkins v. Gaddy, 559 U.S. 34, 39 (2010).
Petitioner claims Riggins sprayed him when he was not resisting or a threat to
the officers. [ECF 1, pp. 6-9]. He also alleges that Heron, Thompson, and John Doe
all participated in the unlawful activity. [Id., p. 9]. He states that a videotape of Wing
2 confirms the incident and, that after he showered, he was forced to put on the
chemically contaminated clothing. [Id.]. Plaintiff has satisfied the factors necessary
to state a claim of unlawful use of force against Riggins, Heron, Thompson, and
John Doe.
B. Retaliatory Falsification of Disciplinary Report Claim
Plaintiff alleges that he subsequently received a “false assault disciplinary
report” designed to cover up Riggins’ unlawful use of force. [ECF 1, p.8]. He
suggests that Riggins is being prosecuted for his conduct, and that Riggins caused
or was involved in fabricating the report. [Id., p. 6-9]. Plaintiff claims that as he was
being transported, Heron threatened to retaliate against him if he filed any
grievances. [Id.].
At this juncture, Plaintiff has alleged sufficient facts to support a claim of
retaliation against Riggins and Heron for causing retaliatory false disciplinary
reports to be filed. Therefore, this claim should proceed against Riggins and Heron.
C. Failure to Intervene
Plaintiff also sues Assistant Warden Heron, Lt. Thompson, and Captain John
Doe, claiming they were present and watched, but failed to intervene as Riggins
sprayed him and the other inmates. [ECF 1, p. 9]. Plaintiff sets forth a minimal failure
to intervene claim against Heron, Thompson, and John Doe.
For a prison or jail official to be constitutionally liable for failure to protect
the safety of an inmate, two requirements must be met. First, the deprivation alleged
must be, objectively, "sufficiently serious." Wilson v. Seiter, 501 U.S. 294, 298
(1991). For a claim based on an alleged failure to prevent harm, the plaintiff must
show that he is or was incarcerated under conditions that pose a substantial risk of
serious harm. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Second, the prison
official who ignores a substantial risk of serious harm to an inmate must have a
"sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. at 834. That state
of mind is one of “deliberate indifference” to the inmate’s health or safety. Wilson
v. Seiter, 501 U.S. at 302-03; Estelle v. Gamble, 429 U.S. 97, 106 (1976). The
plaintiff must allege a conscious or callous indifference to his rights by prison
officials. Brown v. Hughes, 894 F.2d 1533, 1537-38 (11th Cir. 1990). Only such a
degree of disregard for the prisoner’s rights, which offends evolving contemporary
standards of decency and is repugnant to the conscience of mankind, separates
official conduct that is actionable under Section 1983 from simple negligence which
is not. When the plaintiff fails to allege and show proof of such an abuse, what may
be an ordinary tort does not rise to the level of a constitutional violation actionable
under Section 1983. Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Estelle v.
Gamble, supra, 429 U.S. at 106; Byrd v. Clark, 783 F.2d 1002, 1006 (11th Cir.
1986).
Thus, there must be an affirmative causal connection between the official's
acts or omissions and the alleged constitutional deprivation. See Zatler v.
Wainwright, 802 F.2d 397, 401 (11th Cir. 1986); LaMarca v. Turner, 995 F.2d 1526,
1536 (11th Cir. 1993). “Personal participation...is only one of several ways to
establish the requisite causal connection, Zatler v. Wainwright, 802 F.2d at 401, and
thus, personal participation is not the sine qua non for the defendants to be found
personally liable” Swint v. City of Wadley, Ala., 5 F.3d 1435, 1446 (11th Cir.),
opinion modified on other grounds by 11 F.3d 1030 (11th Cir. 1994).
Plaintiff has alleged a claim arising from a failure to intervene as Heron,
Thompson, and John Doe stood by, failing to intervene by doing nothing as Riggins
sprayed him with chemicals unlawfully while Plaintiff was on the ground, not
resisting. Thus, the failure to intervene claim against Heron, Thompson, and John
Doe should proceed.
D. Punitive Damages Claim
The Plaintiff seeks punitive damages against the named Defendants arising
from the excessive use of force, retaliatory false disciplinary reports, and failure to
intervene claims. Punitive damages may be awarded under § 1983 when a
defendant’s conduct is shown to be motivated by evil motive or intent, or when it
involves reckless or callous indifference to the federally protected rights of others.
Smith v. Wade, 461 U.S. 30, 56 (1983). “While the Smith Court determined that it
was unnecessary to show actual malice to qualify for a punitive award, ... its intent
standard, at a minimum, required recklessness in its subjective form.” Kolstad v.
American Dental Ass’n, 527 U.S. 526 (1999). Smith refers to a “subjective
consciousness” of a risk of injury or illegality and a “criminal indifference to civil
obligations.” Smith, 461 U.S. at 45-48 (quoting Philadelphia, W. & B.R. Co. v.
Quigley, 62 U.S. 202, 214 (1858)). At this early juncture, since it cannot be
determined whether punitive damages should be awarded against the named
Defendants arising from the facts alleged, the punitive damage claim should
proceed.
VI. Recommendations
Based upon the foregoing, it is recommended that:
(1) The unlawful use of force claim PROCEED against Riggins
Heron, Thompson, and John Doe;
(2) The failure to intervene claim PROCEED against Heron,
Thompson, and John Doe;
(3) The retaliatory falsification of disciplinary reports PROCEED
against Riggins and Heron; and,
(4) The punitive damages claim PROCEED against Riggins, Heron,
Thompson, and John Doe.
Objections to this Report may be filed with the District Judge within fourteen
days of receipt of a copy of the report. Failure to file timely objections shall bar
plaintiff from a de novo determination by the District Judge of an issue covered in
this report and shall bar the parties from attacking on appeal factual findings
accepted or adopted by the District Judge except upon grounds of plain error or
manifest injustice. See 28 U.S.C. §636(b)(1); Thomas v. Arn, 474 U.S. 140, 149
(1985); RTC v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993).
SIGNED this 29th day of August, 2019.
moca fetta
-12-
cc: Juan A. Tunon-Padron, Pro Se
DC#M48422
Columbia Correctional Institution
Inmate Mail/Parcels
216 S.E. Corrections Way
Lake City, FL 32025