Blake v. Young

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

KEVIN L. BLAKE,

Plaintiff,

v. Case No. 3:23-cv-399-BJD-MCR

E.S. YOUNG, et al.,

Defendants.

ORDER

I. Status

Plaintiff Kevin L. Blake, an inmate in the custody of the Florida

Department of Corrections, initiated this action in the Southern District of

Florida by filing a pro se Civil Rights Complaint (Doc. 1) under 42 U.S.C. §

1983. He is proceeding in forma pauperis on a Second Amended Complaint.

Doc. 19. Nine Defendants remain – E.S. Young; R. Covey; W. Shomp; T. Allen;

R. Reagor; Sergeant Fowler; John Doe; K. Price; and S. Carlan.1 Id. at 2-3; Doc.

19-1 at 1-2. Plaintiff alleges claims of excessive force and failure to intervene.

Before the Court is Defendants Young, Price, Covey, Carlan, Fowler,

Allen, Reagor, and Shamp’s Motion to Dismiss (Doc. 25; Motion), with exhibits

1 The Court dismissed without prejudice Plaintiff’s claims against E. Borrero

and J. Shumate. See Doc. 21.

(Docs. 25-1, 25-2), and Defendants Supplemental Motion to Dismiss (Doc. 34;

Supplemental Motion). The Court advised Plaintiff that granting a motion to

dismiss would be an adjudication of the claim that could foreclose any

subsequent litigation and provided Plaintiff with an opportunity to respond.

See Order (Doc. 22). Plaintiff filed a Response in opposition to the Motion.2 See

Doc. 26. Thus, the motions are ripe for the Court’s review.

II. Motion to Dismiss Standard

A defendant may move to dismiss a complaint for a plaintiff’s “failure to

state a claim upon which relief may be granted.” Fed. R. Civ. P. 12(b)(6). In

ruling on such a motion, the court must accept the plaintiff’s allegations as

true, liberally construing those by a plaintiff proceeding pro se, but need not

accept as true legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Though detailed factual allegations are not required, Rule 8(a) demands “more

than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. A

plaintiff should allege enough facts “to raise a reasonable expectation that

discovery will reveal evidence” supporting the plaintiff’s claims. Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 556 (2007).

2 Plaintiff did not file a response to Defendants’ Supplemental Motion,

however, considering Defendants’ delay in filing the Supplement and because it lacks

merit, the Court finds a response is unnecessary.

II. Plaintiff’s Allegations

Plaintiff alleges that on November 14, 2022, while housed at Florida

State Prison, Shumate and Defendant Price advised Plaintiff he was being

placed on property restriction. Doc. 19-1 at 2-3. When he asked why, Shumate

responded that he did not know why officers placed Plaintiff on property

restriction. Id. at 3. Plaintiff alleges Borrero then inventoried Plaintiff’s

personal property while it was removed from his cell. Id. at 3. Plaintiff claims

that following the removal of his property, Defendant Price held the shield

while Lieutenant D.G. Philbert sprayed three rounds of chemical agents into

Plaintiff’s cell, causing Plaintiff to suffer severe burning of the skin and eyes.

Id. After Plaintiff refused to exit his cell, a five-man cell extraction team, which

consisted of Defendants Shomp, Fowler, Reagor, Allen, and John Doe, was

assembled. Id. He asserts that when the cell extraction team entered his cell,

Shomp and Fowler struck Plaintiff in the face and head several times while

the other team members “hit him all over his body and legs.” Id. According to

Plaintiff, he began screaming “I’m not resisting. I’m trying to roll over. I’m

trying to put my hands behind my back but you won’t let me.” Id. He asserts

he was trying to comply throughout the interaction, but Defendants hindered

his efforts. Id. He contends that Shomp then choked him “into silence” while

Fowler smashed the left side of his face into the floor, causing a deep laceration

above Plaintiff’s left eye. Id.

Plaintiff alleges that during the cell extraction, Defendants Young and

Covey stood to the side of Plaintiff’s cell door and failed to intervene, and

Defendant Carlan obscured the handheld camera footage to hinder the

recording of the cell extraction. Id. at 3-4. According to Plaintiff, Defendants

then escorted him to a decontamination shower where Shomp and Fowler

“smashed” Plaintiff’s head into the wall and choked him while Young again

stood by and failed to intervene. Id. Plaintiff alleges he received nine stitches

to close the laceration above his left eye, which has now scarred, and he

received Dermabond to close another small cut on his face. Id. at 4. He also

contends that the use of force resulted in several scars on his arms and

shoulders. Id. at 5. He claims Defendants’ participation and failure to

intervene in the use of excessive force violated his rights under the Eighth

Amendment. Doc. 19 at 3. As relief, Plaintiff requests compensatory and

punitive damages. Id. at 5.

III. Defendants’ Motion to Dismiss

In their Motion, Defendants argue that: (1) Plaintiff failed to exhaust his

administrative remedies; (2) Plaintiff is not entitled to compensatory damages;

(3) Plaintiff is not entitled to punitive damages; (4) Plaintiff fails to state a

plausible Eighth Amendment claim against them; and (5) they are entitled to

qualified immunity. See generally Motion.

Exhaustion

Defendants argue Plaintiff failed to exhaust his administrative remedies

because he did not file any formal or informal grievances pertaining to his

November 14, 2022, cell extraction. Motion at 6. Defendants acknowledge that

Plaintiff filed one direct emergency grievance (log # 22-6-35079) regarding this

incident, but they argue that effort could not exhaust his administrative

remedies because officials denied Plaintiff’s direct grievance, finding it “was

not a grievance of emergency nature.” Id. at 6-7. In support of their Motion,

Defendants provide the declaration of the FDOC’s informal grievance

coordinator, C. Davis-Cotton; the declaration of the FDOC’s formal grievance

coordinator, Phyllis Rodriguez; the declaration of the FDOC’s bureau chief of

policy management and inmate appeals, Alan McManus; a summary printout

of the informal, formal, and appeal grievances Plaintiff filed between

November 4, 2022, and April 4, 2023; and Plaintiff’s direct emergency

grievance (log # 22-6-35079) and the Secretary’s response thereto. See Docs.

25-1, 25-2.

In response, Plaintiff contends he “filed numerous grievances at the

informal and formal levels between November 15, 2022 to November 22, 2022”

but “most of the grievances that were filed were lost, misfiled, not processed,

or otherwise thrown away.” Doc. 26 at 3, 4; Doc. 19 at 7. Plaintiff also alleges

that his direct emergency grievance (log # 22-6-35079) was also sufficient to

exhaust his claims as it “was denied because the subject of the grievance was

previously referred to the Office of the Inspector General [(OIG)].” Doc. 26 at

3. According to Plaintiff, if his direct emergency grievance (log # 22-6-35079)

was not sufficient or improperly filed, officials would have returned the

grievance without action and informed him to resubmit his grievance at the

appropriate level. Id. at 3-4. He alleges that since the Secretary denied the

grievance and mentioned that the issue had been referred to the OIG, there

was nothing more he could do to satisfy the exhaustion requirement.

The PLRA requires that Plaintiff exhaust his available administrative

remedies before pursuing a § 1983 claim about prison conditions. See 42 U.S.C.

§ 1997e(a) (“No action shall be brought with respect to prison conditions under

section 1983 . . . until such administrative remedies as are available are

exhausted.”); see also Woodford v. Ngo, 548 U.S. 81, 92-93 (2006) (noting that

a prisoner must exhaust administrative remedies before challenging the

conditions of confinement, and concluding that the PLRA demands “proper

exhaustion”). But Plaintiff need not “specially plead or demonstrate exhaustion

in [his] complaint[].” See Jones v. Bock, 549 U.S. 199, 216 (2007). Instead, the

United States Supreme Court has recognized that “failure to exhaust is an

affirmative defense under the PLRA[.]” Id.

Exhaustion of available administrative remedies is “a precondition to an

adjudication on the merits.” Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir.

2008); see also Jones, 549 U.S. at 211. The Supreme Court has instructed that

while “the PLRA exhaustion requirement is not jurisdictional[,]” Woodford,

548 U.S. at 101, “exhaustion is mandatory . . . and unexhausted claims cannot

be brought,” Pavao v. Sims, 679 F. App’x 819, 823 (11th Cir. 2017) (per curiam)

(citing Jones, 549 U.S. at 211). Not only is there a recognized exhaustion

requirement, “the PLRA . . . requires proper exhaustion” as set forth in

applicable administrative rules and policies of the institution. Woodford, 548

U.S. at 93.

Because exhaustion requirements are designed

to deal with parties who do not want to exhaust,

administrative law creates an incentive for these

parties to do what they would otherwise prefer not to

do, namely, to give the agency a fair and full

opportunity to adjudicate their claims.

Administrative law does this by requiring proper

exhaustion of administrative remedies, which “means

using all steps that the agency holds out, and doing so

properly (so that the agency addresses the issues on

the merits).”

Id. at 90 (citation omitted). Indeed, “[p]roper exhaustion demands compliance

with an agency’s deadlines and other critical procedural rules[.]” Id.

In Ross v. Blake, the Supreme Court instructed that “[c]ourts may not

engraft an unwritten ‘special circumstances’ exception onto the PLRA’s

exhaustion requirement. The only limit to § 1997e(a)’s mandate is the one

baked into its text: An inmate need exhaust only such administrative remedies

as are ‘available.’” 136 S. Ct. 1850, 1862 (2016). For an administrative remedy

to be available, the “remedy must be ‘capable of use for the accomplishment of

[its] purpose.’” Turner v. Burnside, 541 F.3d 1077, 1084 (11th Cir. 2008)

(quoting Goebert v. Lee Cnty., 510 F.3d 1312, 1322-23 (11th Cir. 2007)).

Because failure to exhaust administrative remedies is an affirmative

defense, Defendants bear “the burden of proving that [Plaintiff] has failed to

exhaust his available administrative remedies.” Turner, 541 F.3d at 1082. The

Eleventh Circuit has articulated a two-step process that the Court must

employ when examining the issue of exhaustion of administrative remedies.

In Turner v. Burnside we established a two-step

process for resolving motions to dismiss prisoner

lawsuits for failure to exhaust. 541 F.3d at 1082. First,

district courts look to the factual allegations in the

motion to dismiss and those in the prisoner’s response

and accept the prisoner’s view of the facts as true. The

court should dismiss if the facts as stated by the

prisoner show a failure to exhaust. Id. Second, if

dismissal is not warranted on the prisoner’s view of

the facts, the court makes specific findings to resolve

disputes of fact, and should dismiss if, based on those

findings, defendants have shown a failure to exhaust.

Id. at 1082–83; see also id. at 1082 (explaining that

defendants bear the burden of showing a failure to

exhaust).

Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1209 (11th Cir. 2015).

And “[a] prisoner need not name any particular defendant in a grievance in

order to properly exhaust his claim.” Parzyck v. Prison Health Servs., Inc., 627

F.3d 1215, 1218 (11th Cir. 2010) (citations omitted).

State law “determines what steps are required to exhaust.” Dimanche v.

Brown, 783 F.3d 1204, 1207 (11th Cir. 2015); see also Jones, 549 U.S. at 218

(stating that “it is the prison’s requirements, and not the PLRA, that define

the boundaries of proper exhaustion”). The FDOC provides inmates with a

three-step grievance process for exhausting administrative remedies. As the

Eleventh Circuit has described it:

The grievance procedure applicable to Florida

prisoners is set out in § 33-103 of the Florida

Administrative Code. Section 33-103 contemplates a

three-step sequential grievance procedure: (1)

informal grievance; (2) formal grievance; and then (3)

administrative appeal. Dimanche, 783 F.3d at 1211.

Informal grievances are handled by the staff member

responsible for the particular area of the problem at

the institution; formal grievances are handled by the

warden of the institution; and administrative appeals

are handled by the Office of the Secretary of the

FDOC. See Fla. Admin. Code. §§ 33-103.005–103.007.

To exhaust these remedies, prisoners ordinarily must

complete these steps in order and within the time

limits set forth in § 33-103.011, and must either

receive a response or wait a certain period of time

before proceeding to the next step. See id. § 33-

103.011(4).

Pavao, 679 F. App’x at 824.

However, the ordinary three-step procedure does not always apply. For

example, an inmate may skip the informal and formal grievance steps and file

a direct emergency grievance with the Office of the Secretary, if the issue

involves an emergency, reprisal, protective management, admissible reading

material, release date calculations, banking issues, sexual abuse committed by

the warden, or HIPAA violations. Fla. Admin. Code r. 33-103.007(3)(a). When

a prisoner files a direct emergency grievance with the Secretary, he must do so

“within 15 calendar days from the date on which the incident or action which

is the subject of the grievance occurred.” Fla. Admin. Code r. 33-103.011(d).

Here, accepting Plaintiff’s view of the facts as true, the Court finds

dismissal of the claims against Defendants for lack of exhaustion is not

warranted at the first step of Turner. Thus, the Court proceeds to the second

step of the two-part process where the Court considers Defendants’ arguments

about exhaustion and makes findings of fact.

In resolving those disputes, the Court finds that the evidentiary material

shows Plaintiff did not file an informal or formal grievance regarding the

November 16, 2022, events, and thus he did not complete the FDOC’s typical

three-step grievance procedure. See Doc. 25-1. But the evidentiary material

also shows that on November 16, 2022, Plaintiff submitted to the Secretary a

“direct” “emergency” grievance (log # 22-6-35079), under Fla. Admin. Code R.

33-103.007, which contained allegations involving the November 14, 2022, use

of force and failure to intervene. Doc. 25-2 at 6-7. On December 5, 2022, the

Secretary’s Office responded to the direct grievance as follows:

Note: This grievance is not accepted as a grievance of

an emergency nature.

Your appeal has been reviewed and evaluated. The

subject of your grievance was previously referred to

the Office of the Inspector General. It is the

responsibility of that office to determine the amount

and type of inquiry that will be conducted. This

inquiry/review may or may not include a personal

interview with you. Upon completion of this review,

information will be provided to appropriate

administrators for final determination and handling.

As this process was initiated prior to the receipt of

your appeal, your request for action by this office is

denied.

Doc. 25-2 at 5.

Defendants argue that because “an emergency [was] not found to exist,”

Plaintiff’s direct grievance did not exhaust his administrative remedies.

Motion at 11. In support of that assertion, Defendants rely in the declaration,

of McManus, in which he explains:

In appeal #22-6-35079, Inmate Blake . . . filed a direct

emergency appeal grieving wrongful acts of institution

staff. Appeal #22-6-35079 was properly denied because

it was not a grievance of emergency nature. Further,

appeal #22-6-35079’s denial was not a final decision on

the merits because of a pending Office of the Inspector

General investigation. As such, appeal #22-6-35079’s

denial indicates this by including the relevant

language “[u]pon completion of this review,

information will be provided to the appropriate

administrative for a final determination and

handling.”

Doc. 25-2 at 1. Plaintiff, however, argues that by denying his emergency

grievance (log # 22-6-35079) and omitting instructions to resubmit at the

institutional level in light of the OIG’s investigation, he properly exhausted his

claims because he would have just received the same response if he

resubmitted at the informal grievance level. Doc. 26 at 4. The Court agrees.

In Joseph v. Gorman, No. 4:11cv34-MP-CAS, 2012 WL 4089012, at *6

(N.D. Fla. Mar. 12, 2012), report and recommendation adopted by 2012 WL

4088945, at *1 (N.D. Fla. Sept. 17, 2012), the court considered a similar

response to a direct emergency grievance filed under identical circumstances

and found the plaintiff’s direct grievance exhausted the grievance process.

Notably, the court found, “A response that denies a grievance appeal because

the matter is already under investigation, as opposed to returning it without

action or finding it to be in non-compliance, must be considered exhaustion of

administrative remedies. At that point, there was nothing further for Plaintiff

to do.” Joseph, 2012 WL 4089012, at *6. Likewise, in Smith v. Williams,

3:23cv5661/TKW/ZCB, 2024 WL 4438320, at *3 (N.D. Fla. Sept. 9, 2024), report

and recommendation adopted by 2024 WL 4434798, at *1 (N.D. Fla. Oct. 7,

2024), the court again considered an identical response to a direct grievance

and explained:

Plaintiff filed a direct grievance . . . with the FDOC

Secretary/Central Office. The Secretary/Central

Office did not return that grievance without action or

find that it was procedurally noncompliant. Instead,

the Secretary/Central Office “reviewed and

evaluated” the grievance and then “denied” it because

the matter had been referred to the OIG. Although

Defendants argue that Plaintiff's grievance should

have been returned because it was procedurally

defective, the fact is that it was not. Instead, the

Secretary/Central Office “reviewed and evaluated”

the grievance. And the Eleventh Circuit has made

clear that “district courts may not enforce a prison’s

procedural rule to find a lack of exhaustion after the

prison itself declined to enforce the rule.” Whatley v.

Smith, 898 F.3d 1072, 1083 (11th Cir. 2018). Thus,

the fact that the Secretary/Central Office should have

or could have returned Plaintiff’s direct grievance as

procedurally improper is irrelevant to the exhaustion

issue because the prison officials did not return the

direct grievance as procedurally improper.

Moreover, once Plaintiff received the response from

the Secretary/Central Office indicating that the

matter had been referred to the OIG, there was

nothing more for Plaintiff to do.

Smith, 2024 WL 4438320, at *3 (record citations omitted).

Here, the Secretary’s response indicates Plaintiff’s direct emergency

grievance (log # 22-6-35079) was “reviewed and evaluated” and then “denied”

because the matter had been referred to the OIG. The Secretary also did not

advise Plaintiff that he needed to resubmit his grievance at the appropriate

level to be considered. Based on the Secretary’s response, there were no further

actions Plaintiff needed to take to exhaust his administrative remedies. And

thus, Defendants’ Motion is due to be denied as to their exhaustion argument.

Compensatory Damages

Defendants also argue that Plaintiff is not entitled to compensatory

damages under 42 U.S.C. § 1997e(e) because he has not alleged that he

suffered more than de minimis physical injuries resulting from Defendants’

actions. Motion at 11-17.

Under 42 U.S.C. § 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 a physical injury that is more than de minimis. Brooks v. Warden, 800

F.3d 1295, 1307 (11th Cir. 2015). But the physical injury need not be

significant. See Thompson v. Sec’y, Fla. Dep’t of Corr., 551 F. App’x 555, 557

(11th Cir. 2014).

Here, Plaintiff complains about a large laceration above his left eye that

required nine stitches as well as another smaller laceration on his face that

required Dermabond. He contends that he now has several scars on his face,

arms, and shoulders. Taking those allegations as true, the Court finds Plaintiff

asserts a physical injury greater than de minimis. Thus, the Motion is denied

to the extent that Defendants assert Plaintiff’s request for compensatory

damages is precluded under § 1997e(e).

Punitive Damages

Defendants also argue that Plaintiff’s request for punitive damages must

be dismissed because it is statutorily barred. Motion at 17. According to

Defendants, 18 U.S.C. § 3626(a)(1)(A) precludes punitive damages in all civil

rights cases because such damages are “prospective relief.” Id. In support of

their contention, Defendants assert that punitive damages “are never

necessary to correct a violation of a federal right.” Id. at 21. They also contend

that even if an award of punitive damages is necessary to correct such a legal

violation, that award could not satisfy the PLRA’s “stringent limitations” as

the relief is neither “narrowly drawn” nor “the least intrusive means necessary

to correct the violation of the Federal right.” Id. at 23-24.

Section 3626(a)(1)(A) provides:

(1) Prospective relief. – (A) Prospective relief in any

civil action with respect to prison conditions shall

extend no further than necessary to correct the

violation of the Federal right of a particular plaintiff

or plaintiffs. The court shall not grant or approve any

prospective relief unless the court finds that such

relief is narrowly drawn, extends no further than

necessary to correct the violation of the Federal right,

and is the least intrusive means necessary to correct

the violation of the Federal right. The court shall give

substantial weight to any adverse impact on public

safety or the operation of a criminal justice system

caused by the relief.

18 U.S.C. § 3626(a)(1)(A). Defendants are correct that punitive damages are

considered “prospective relief” under § 3626. See Johnson v. Breeden, 280 F.3d

1308, 1325 (11th Cir. 2002) (holding “punitive damages are prospective relief”),

abrogated on other grounds by Kingsley v. Hendrickson, 576 U.S. 389, 395

(2015)). But their argument that punitive damages, as “prospective relief”

under § 3626, are precluded in prisoner civil rights actions is wholly misplaced.

Indeed, they cite Johnson as their primary support for this notion; but in

Johnson, the court did not hold that punitive damages were unavailable under

§ 3626 for § 1983 cases. Instead, in Johnson, the Eleventh Circuit clarified, in

the context of a § 1983 civil rights case, that § 3626(a)(1)(A) merely provides

the framework for awarding punitive damages. Id. at 1325. The court

explained “a punitive damages award must be no larger than reasonably

necessary to deter the kind of violations of the federal right that occurred in

the case . . . [and] that such awards should be imposed against no more

defendants than necessary to serve that deterrent function and that they are

the least intrusive way of doing so.” Id.

While the Court is unaware of an Eleventh Circuit case that has

addressed Defendants’ specific argument here, the Court cannot disregard the

Eleventh Circuit’s long-standing recognition that punitive damages are

available in prisoner civil rights actions. Indeed, the Eleventh Circuit has held

that 42 U.S.C. § 1997e(e) permits claims for punitive damages for § 1983 claims

without a physical injury requirement. Hoever v. Marks, 993 F.3d 1353, 1364

(11th Cir. 2021).3 And it has held “[p]unitive damages are appropriate in § 1983

cases ‘where a defendant’s conduct is motivated by evil intent or involves

3 In Hoever, the Eleventh Circuit declined to address the availability of

punitive damages in prison condition cases under 18 U.S.C. § 3626. Hoever, 993 F.3d

at 1364 n.5.

callous or reckless indifference to federally protected rights.” Barnett v.

MacArthur, 715 F. App’x 894, 905 (11th Cir. 2017). Also, the Eleventh Circuit

Civil Pattern Jury Instructions on § 1983 damages include an instruction on

awarding punitive damages. See Eleventh Circuit Pattern Jury Instruction,

Civil Cases, Civil Rights – 42 U.S.C. § 1983 Claims – Damages § 5.13.

The Court also finds persuasive other district court decisions explicitly

finding that § 3626(a)(1)(A) does not preclude an award of punitive damages in

prisoner civil cases. See, e.g., Brown v. Semple, No. 3:16cv376, 2018 WL

4308564, at *14 (D. Conn. Sept. 10, 2018) (collecting cases); Douglas v.

Byunghak Jin, No. 11-0350, 2014 WL 1117934, at *4-5 (W.D. Penn. Mar. 20,

2014) (reasoning that if Congress “intended to abolish punitive damages in all

prisoner litigation under the PLRA, it would have done so directly, and in much

plainer terms”).4 Thus, the Court declines to find that § 3626 precludes a

request for punitive damages in this § 1983 action, and Defendants’ Motion is

denied on this issue.

4 The Court notes that although decisions of other district courts are not

binding, they may be cited as persuasive authority. See Stone v. First Union Corp.,

371 F.3d 1305, 1310 (11th Cir. 2004) (noting that, “[a]lthough a district court would

not be bound to follow any other district court’s determination, the decision would

have significant persuasive effects.”).

Eighth Amendment and Qualified Immunity

Defendants argue that Plaintiff fails to state an excessive force or failure

to intervene claim against them. Motion at 24-28. According to Defendants, the

injuries Plaintiff alleges he sustained are not enough to support an excessive

force claim and the application of chemical agents, without more, is not greater

than de minimis in nature. Id. at 24-25. They also contend that because

Plaintiff refused to exit his cell, they were allowed to use force, and

immediately after the cell extraction, they provided him with a

decontamination shower and medical attention. Id. at 27. Defendants also

argue that Plaintiff fails to provide specific allegations for his failure to

intervene claim. Id. at 28. And they assert they are entitled to qualified

immunity. Id. at 28-32.

In Sconiers v. Lockhart, 946 F.3d 1256, 1265 (11th Cir. 2020), the

Eleventh Circuit reviewed “the principles applicable to Eighth Amendment

excessive-force” claims. In doing so, the Court instructed:

The Eighth Amendment, among other things,

prohibits “cruel and unusual punishments.” U.S.

Const. amend. VIII. As the Supreme Court has

explained, “the unnecessary and wanton infliction of

pain” qualifies under the Eighth Amendment as

proscribed “cruel and unusual punishment.” Hudson

v. McMillian, 503 U.S. 1, 5 (1992). Nevertheless, the

Supreme Court has instructed that what rises to the

level of an “unnecessary and wanton infliction of pain”

differs based on the type of Eighth Amendment

violation alleged. Id.

Since [the plaintiff] asserts excessive-force . . .

claims, “the core judicial inquiry” requires [the Court]

to consider “whether force was applied in a good-faith

effort to maintain or restore discipline, or maliciously

and sadistically to cause harm.” Wilkins, 559 U.S. at

37 (citation and quotation marks omitted).[5] 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.” Hudson, 503 U.S. at 8

(cleaned up).

With respect to the subjective element, “to have

a valid claim on the merits of excessive force in

violation of [the Eighth Amendment], the excessive

force must have been sadistically and maliciously

applied for the very purpose of causing harm.”

Johnson v. Breeden, 280 F.3d 1308, 1321 (11th Cir.

2002); see also Thomas v. Bryant, 614 F.3d 1288, 1304

(11th Cir. 2010).

As for the objective component of an excessive-

force violation, it focuses on whether the official’s

actions were “harmful enough,” Hudson, 503 U.S. at 8,

or “sufficiently serious,” Wilson v. Seiter, 501 U.S. 294,

298 (1991), to violate the Constitution. “Not every

malevolent touch by a prison guard gives rise to a

federal cause of action.” Wilkins, 559 U.S. at 37. “The

Eighth Amendment’s prohibition of ‘cruel and

unusual’ punishments necessarily excludes from

constitutional recognition de minimis uses of physical

force, provided that the use of force is not of a sort

repugnant to the conscience of mankind.” Id. at 37-38.

Instead, the Eighth Amendment prohibits force that

5 Wilkins v. Gaddy, 559 U.S. 34 (2010) (per curiam).

offends “contemporary standards of decency,”

regardless of whether “significant injury is evident,”

though the extent of injury may shed light on the

amount of force applied or “whether the use of force

could plausibly have been thought necessary.”

Wilkins, 559 U.S. at 37 (citation and internal

quotation marks omitted).

Id. at 1265-66; see also McKinney v. Sheriff, 520 F. App’x 903, 905 (11th Cir.

2013) (per curiam). In determining whether an officer’s use of force was applied

maliciously and sadistically for the purpose of causing harm, courts consider

five distinct factors:

(1) the extent of 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.

Campbell v. Sikes, 169 F.3d 1353, 1375 (11th Cir. 1999) (quoting Whitley v.

Albers, 475 U.S. 312, 321 (1986); Hudson, 503 U.S. at 7). When considering

these factors, courts “must also give a ‘wide range of deference to prison

officials acting to preserve discipline and security,’ including when considering

‘[d]ecisions made at the scene of a disturbance.’” Cockrell v. Sparks, 510 F.3d

1307, 1311 (11th Cir. 2007) (quoting Bennett v. Parker, 898 F.2d 1530, 1533

(11th Cir. 1990)).

Notably, a lack of serious injury, while not dispositive, is relevant to the

inquiry. Wilkins, 559 U.S. at 38; Smith v. Sec’y, Dep’t of Corr., 524 F. App’x

511, 513 (11th Cir. 2013) (per curiam). The United States Supreme Court has

explained:

“[T]he extent of injury suffered by an inmate is

one factor that may suggest ‘whether the use of force

could plausibly have been thought necessary’ in a

particular situation.” Ibid.[6] (quoting Whitley, supra,

at 321). The extent of injury may also provide some

indication of the amount of force applied. . . . An

inmate who complains of a “‘push or shove’” that

causes no discernible injury almost certainly fails to

state a valid excessive force claim. Id. at 9 (quoting

Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.

1973)).[7]

Injury and force, however, are only imperfectly

correlated, and it is the latter that ultimately counts.

An 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 37-38. The Eleventh Circuit has stated:

A plaintiff who suffers only de minimis injury does not

necessarily lack a claim for excessive force under §

1983. Stephens,[8] 852 F.3d at 1328 n.33; Saunders v.

Duke, 766 F.3d 1262, 1270 (11th Cir. 2014). However,

the resulting injuries can be evidence of the kind or

degree of force that was used by the officer. See

Crocker v. Beatty, 995 F.3d 1232, 1251 (11th Cir.

2021).

6 Hudson, 503 U.S. at 7.

7 See Johnson, 481 F.2d at 1033 (“Not every push or shove, even if it may later

seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s

constitutional rights.”).

8 Stephens v. DeGiovanni, 852 F.3d 1298 (11th Cir. 2017).

Charles v. Johnson, 18 F.4th 686, 700 (11th Cir. 2021).

Further, “an officer can be liable for failing to intervene when another

officer uses excessive force.” Priester v. City of Riviera Beach, Fla., 208 F.3d

919, 924 (11th Cir. 2000); Ensley v. Soper, 142 F.3d 1402, 1407-08 (11th Cir.

1998). This liability, however, only arises when the officer is able to intervene

and fails to do so. See Keating v. City of Miami, 598 F.3d 753, 764 (11th Cir.

2010); see also Fils v. City of Aventura, 647 F.3d 1272, 1290 n.21 (11th Cir.

2011); Brown v. City of Huntsville, 608 F.3d 724, 740 n.25 (11th Cir. 2010)

(“Because the relevant events happened so quickly, the record does not reflect

any point at which [the officer] could have intervened to prevent [another

officer’s] use of excessive force . . . .”).

Here, at this stage of the proceedings and taking Plaintiff’s allegations

as true, as the Court must, Plaintiff has sufficiently alleged claims of excessive

force and failure to intervene under the Eighth Amendment. Although Plaintiff

asserts that he at first refused to exit his cell, he alleges that once the cell

extraction team entered, he made several attempts to comply but Defendants

“struck” him in the head and face, “smashed” his face into the floor, and

“choked” him into silence, while Defendants Covey and Young stood at his cell

door and ignored his pleas for help. Doc. 19-1 at 3. He also alleges that

Defendants’ force resulted in several lacerations, which required stitches.

Defendants’ argument that they used force to restore security and quell a

disturbance is more appropriate in a motion for summary judgment, not in a

motion to dismiss. And Plaintiff’s alleged injuries cannot be considered in

isolation but must be viewed in concert with his allegations of force.

Also, as to Defendants’ argument that they are entitled to qualified

immunity:

“The defense of qualified immunity completely

protects government officials performing

discretionary functions from suit in their individual

capacities unless their conduct violates ‘clearly

established statutory or constitutional rights of which

a reasonable person would have known.’’ Gonzalez v.

Reno, 325 F.3d 1228, 1233 (11th Cir. 2003) (quoting

Hope v. Pelzer, 536 U.S. 730, 739 (2002)) . . . . Once it

has been determined that the official was acting

within his discretionary duties, the burden shifts to

the plaintiff to show (1) that the official violated a

constitutional right and (2) that the right was clearly

established at the time of the alleged violation.

Caldwell v. Warden, FCI Talladega, 748 F.3d 1090,

1099 (11th Cir. 2014). Our inquiry “can begin with

either prong.” Morris v. Town of Lexington, 748 F.3d

1316, 1322 (11th Cir. 2014).

Marbury v. Warden, 936 F.3d 1227, 1232-33 (11th Cir. 2019) (internal citations

modified). As stated above, Plaintiff sufficiently alleged Defendants used

excessive force and failed to intervene, violating his rights under the Eighth

Amendment. Thus, at the pleading stage, Defendant are not entitled to

qualified immunity. As such, Defendants’ Motion is due to be denied on these

issues.

IV. Defendants’ Supplemental Motion to Dismiss

Defendants raise one argument in their Supplemental Motion. They

contend that the Second Amended Complaint should be dismissed because

Plaintiff failed to adequately disclose his litigation history. See generally

Supplemental Motion. According to Defendants, Plaintiff failed to disclose No.

3:22-cv-846-MMH-JBT (M.D. Fla.) when answering whether he had a case

dismissed based on the “three strikes rule.” Id. at 2-4. And they assert that

when listing his previous lawsuits, Plaintiff failed to disclose two additional

prior cases – No. 3:23-cv-21819-LC-HTC (N.D. Fla) and 6:19-cv-72-RBD-G_K

(M.D. Fla.). Id. at 4-5.

Under the circumstances presented and upon review of Plaintiff’s

litigation history, the Court is not inclined to dismiss the Second Amended

Complaint for Plaintiff’s failure to disclose his litigation history. First, the

Court finds that Plaintiff did not fail to disclose a “strike” under 28 U.S.C. §

1915(g). Citing to Federal Rule of Civil Procedure 41(b), and without any

reference to § 1915, the Court dismissed No. 3:22-cv-846 without prejudice

because Plaintiff did not correct the pleading deficiencies despite being

afforded an opportunity to do so. The Court then specifically noted that

Plaintiff may initiate new cases if he wished to pursue any of his numerous

claims. See generally Blake, No. 3:22-cv-846.

Also, while Plaintiff did not list No. 3:23-cv-21819 and No. 6:19-cv-72

when disclosing his prior cases, Plaintiff did disclose seventeen other prior

cases. See Docs. 19 at 9-10, 19-1 at 4-8. Further, a review of No. 6:19-cv-72

shows the court dismissed that case without prejudice for Plaintiff’s failure to

pay the filing fee or request to proceed as a pauper within thirty days of filing

and because he failed to use the standard civil rights form. Blake, 6:19-cv-72.

And upon review of No. 3:23-cv-21819, the court did not dismiss that case until

two months after Plaintiff filed his Second Amended Complaint in the instant

case. Blake, No. 3:23-cv-21819. In sum, Plaintiff did not appear to intentionally

deceive the Court or respond untruthfully about previous lawsuits challenging

the conditions of his confinement. And thus, Defendants’ Supplemental Motion

is denied.

Accordingly, it is

ORDERED AND ADJUDGED:

1. Defendants’ Motion to Dismiss (Doc. 25) is DENIED.

2. Defendants’ Supplemental Motion to Dismiss (Doc. 34) is

DENIED.

3. Defendants shall answer the Second Amended Complaint within

14 days of the date of this Order.

4. A separate order will enter setting case management deadlines.

DONE AND ORDERED in Jacksonville, Florida, on December 11,

2024.

Mh . / \ .

Prion}, Pom—

BRIAN. DAVIS

United States District Judge

Jax-7

C: Kevin Lamar Blake, #X83762

Counsel of record

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