Stewart v. Boone

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ARSENIO DECORD STEWART,

Plaintiff,

v. Case No. 3:22-cv-932-BJD-SJH

LONDON M. BOONE, et al.,

Defendants.

_________________________________

ORDER

I. Status

Plaintiff, Arsenio Decord Stewart, an inmate of the Florida Department

of Corrections (FDC), is proceeding pro se on an Amended Complaint for

Violation of Civil Rights (Doc. 13; Am. Compl.). The Court previously denied

the five named Defendants’ motions to dismiss, but sua sponte dismissed the

claim(s) against the Doe Defendant. See Order (Doc. 48). Against the five

named Defendants (three corrections officers, the Warden, and a nurse),1

Plaintiff asserts the following claims: an Eighth Amendment excessive force or

sexual assault claim against Defendant Boone (for assaulting and

unprofessionally restraining Plaintiff and for grinding his penis against

1 Collectively, the Warden and corrections officers will be referred to as “FDC

Defendants.”

Plaintiff’s buttocks); an Eighth Amendment excessive force claim against

Defendants Montague and Norton (for kicking Plaintiff when he was fully

restrained and lying on the ground); an Eighth Amendment failure to protect

claim against Warden Polk (for permitting Defendant Boone to interact with

Plaintiff during the pendency of a PREA2 investigation); and an Eighth

Amendment deliberate indifference claim against Defendant Nurse Selph (for

not treating Plaintiff’s rib injuries). See Am. Compl. at 8, 10–12.

Before the Court are (1) Defendant Selph’s Motion for Summary

Judgment (Doc. 76; Selph Mot.), which Plaintiff opposes (Doc. 81; Pl. Selph

Resp.), and (2) the FDC Defendants’ Motion for Summary Judgment (Doc. 78;

FDC Mot.), which Plaintiff opposes (Doc. 84; Pl. FDC Resp.).3

II. Summary Judgment Standard

Under Rule 56 of the Federal Rules of Civil Procedure, “[t]he court shall

grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). An issue is genuine when the evidence

is such that a reasonable jury could return a verdict in favor of the

2 “PREA” stands for Prison Rape Elimination Act.

3 Plaintiff filed two responses to the FDC Defendants’ Motion (Docs. 82, 84).

The first response includes an exhibit (Doc. 82-1), but the “Amended Response” does

not. The exhibit filed with the original response is duplicative of other records already

on the docket.

2

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.”

Anderson, 477 U.S. at 248. In determining whether summary judgment is

3

appropriate, a court “must view all evidence and make all reasonable

inferences in favor of the party opposing [the motion].” Haves v. City of Miami,

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

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

III. Relevant Facts

Plaintiff’s claims stem from a use-of-force incident that occurred at

Hamilton Correctional Institution (HCI). Plaintiff’s allegations are

summarized in the Court’s Order on Defendants’ motions to dismiss. See Order

(Doc. 48) at 1–3, 10. For purposes of summary judgment, the facts are drawn

from the exhibits offered in support of Defendant Selph’s Motion (Docs. 76-1

through 76-12; Selph Exs. 1–12), the FDC Defendants’ Motion (Docs. 78-1

through 78-4; FDC Exs. A–D), and Plaintiff’s Response to Defendant Selph’s

Motion (Doc. 81-1; Pl. Ex.).4 Additionally, the FDC Defendants have submitted

video evidence under seal.5

4 Except for one grievance that is not material to the issues before the Court,

the documents Plaintiff filed with his original response to the FDC’s Motion are the

same as those he filed in response to Defendant Selph’s Motion. The Court will cite

Plaintiff’s exhibit as the one docketed with his Response to Defendant Selph’s Motion

(Doc. 81-1).

5 Footage from fixed wing cameras was filed under seal on a flash drive. The

Court will cite the flash drive as “Video Ex.” There is reference to a hand-held camera

in FDC reports, see FDC Ex. D at 1, 8, but no footage from a hand-held camera was

provided.

4

A. Force Incident

According to FDC records, including incident reports, disciplinary

reports, grievance responses, and medical records, Defendant Boone found a

homemade weapon in Plaintiff’s personal property while conducting a cell

search on November 11, 2021. See FDC Ex. C at 3, 7; FDC Ex. D at 2.

Defendant Boone directed Plaintiff to “turn around and submit to wrist-

restraints,” but Plaintiff refused, became argumentative, and “took an

aggressive stance.” See FDC Ex. C at 7. Thus, Defendant Boone used “chemical

force” to gain Plaintiff’s compliance. See id. See also FDC Ex. D at 2, 5. The

chemical agents did not have the “desired effect,” in part because Plaintiff

backed away to “elude” the chemicals. See FDC Ex. C at 7. Plaintiff ran down

the hall, and Defendant Boone pursued him. Id. at 2, 5, 8. When Defendant

Boone advanced toward Plaintiff to secure him, Plaintiff “struck [Defendant]

Boone in his face and upper torso.” Id. Both fell to the floor, with Plaintiff

landing on top of Defendant Boone. Id. at 2, 5. A non-Defendant, Officer

McBurrough, pulled Plaintiff off Defendant Boone and held him face-down on

the floor until other officers arrived to assist. Id. at 2, 5, 9.

Plaintiff refused to stand, so officers executed a “four-man carry” to bring

Plaintiff for a decontamination shower. Id. at 2, 5. Defendant Boone did not

participate in the four-man carry, but Defendant Norton did, “maintaining a

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hold of [Plaintiff’s] left leg.” Id. at 2, 5. According to Defendant Boone’s force

report, Defendant Montague was the officer in charge when the incident

occurred and gave the “lead-in statement” for the handheld camera. Id. at 8.

Defendant Boone sustained injuries from the incident, and Plaintiff incurred a

disciplinary charge for battery on a correctional officer. Id. at 1–2, 5, 9, 11. See

also FDC Ex. C at 5, 7. He also was “placed on Heightened Security as a result

of his assaultive actions towards staff.” See FDC Ex. D at 6.

In his Amended Complaint, Plaintiff concedes he disobeyed Defendant

Boone’s command to “cuff up,” ran from Boone, and physically battered Boone.

See Am. Compl. at 10. However, he claims he did so because Defendant Boone

falsified having found a weapon in retaliation for Plaintiff having made a

PREA complaint against Boone. Id. at 10, 14.6 Id. at 10–11. Plaintiff alleges

Defendant Boone violated his Eighth Amendment rights by “unprofessional[ly]

restrain[ing] . . . him,” apparently by “put[ting him] in a choke-hold” and

pressing “his hardened penis . . . against [his] butt[ocks].” Id. at 4, 8, 10. He

asserts an Eighth Amendment claim against Defendants Montague and

6 The Court initially construed Plaintiff’s allegations as an attempt to assert a

retaliation claim against Defendant Boone, see Order (Doc. 48), but upon closer

review, it does not appear he does so. He identifies only Eighth Amendment claims

stemming from his allegations, see Am. Compl. at 4, and he does not reference a

purported retaliation claim in his Response to the FDC’s Motion, see generally Pl.

FDC Resp.

6

Norton for allegedly “kick[ing him] several times” while he was fully restrained

on the ground. Id. at 11. Plaintiff alleges Warden Polk “failed to prevent” the

alleged sexual assault by not separating him from Defendant Boone knowing

that Plaintiff had made a PREA complaint against Boone. Id. at 11–12, 15.

B. Plaintiff’s Alleged Injuries

Defendant Selph, a registered nurse, evaluated Plaintiff immediately

after the incident. See Selph Exs. 1, 2. According to the relevant medical

records (a post-use-of-force assessment and body diagram), “[no] acute injury

or distress [was] noted.” See id. Plaintiff, on the other hand, alleges he

sustained visible rib injuries, which Defendant Selph refused to treat. See Am.

Compl. at 11. On November 29, 2021, Plaintiff submitted an informal

grievance complaining that “medical . . . refus[ed] to give [him] medical

attention [on] November 11, 2021 after [he] informed the medical person[n]el

that [his] neck and left rib cage [were] injured due to being ass[a]ulted by

sercurity [sic] . . . .” Pl. Ex. at 1. The grievance responder said that Plaintiff’s

“[r]ecords” noted he had an “acute injury . . . in the rib area” and that he could

access sick-call if warranted. Id. (December 2, 2021 Grievance Response).

Plaintiff was seen in medical at least twice after the incident but did not

complain about injuries to his neck or ribs. See Selph Exs. 6, 7.

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IV. Defendant Selph’s Motion

Defendant Selph argues Plaintiff did not have a serious medical need

following the force incident on November 11, 2021, and even if Plaintiff did,

Defendant Selph did not know about it and therefore could not have been

deliberately indifferent. See Selph Mot. at 6–8. He argues that the medical

records show he evaluated Plaintiff per protocol following the force incident

and no injuries were noted. Id. at 7–9. He further argues the records

demonstrate that Plaintiff never “sought any further treatment for any

injuries resulting from [the incident],” and Plaintiff was transferred to Florida

State Prison two months later, in January 2022. Id. at 3, 9–10.

In his Response, Plaintiff first complains that Defendant Selph’s Motion

was filed late. See Pl. Selph Resp. at 1. It was not. The dispositive motion

deadline was September 3, 2024, see Order (Doc. 73), and that is when

Defendant Selph filed his Motion, see Selph Mot. at 11. With respect to the

substantive claim, Plaintiff relies primarily on the December 2, 2021 Grievance

Response, in which a prison official noted that a review of his records showed

he had an “acute injury . . . in the rib area.” See Pl. Ex. at 1. Plaintiff also claims

that the body diagram of his post-use-of-force exam was “tampered with,”

because on the body diagram, there are circles around the rib area, which is

where he claims to have had pain. Id. at 3. He contends, “That circle indicates

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where an injury is at, and mine was in that area.” Id. He further claims the

other notations on the body diagram were “added” after the fact, including a

check mark in the box that says, “No injury identified,” and a handwritten note

that says, “[No] acute injury noted.” See Selph Ex. 2.

Plaintiff complains that Defendant Selph’s refusal to give him pain

medication or ice caused him to suffer in pain and speculates the lack of

treatment “may be the reason [he is] permanently disfigured.” See Pl. Selph

Resp. at 4–5. Plaintiff provides no evidence of permanent disfigurement. He

does not mention any neck injury in his Response. See generally id.

In the prison setting, “[t]he knowledge of the need for medical care and

intentional refusal to provide that care has consistently been held to surpass

negligence and constitute deliberate indifference.” Ancata v. Prison Health

Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985). See also Waldrop v. Evans, 871

F.2d 1030, 1033 (11th Cir. 1989) (“[A] prison inmate has the right under the

Eighth Amendment to be free from deliberate indifference to serious physical

or psychiatric needs.”). To succeed on a deliberate indifference claim, a plaintiff

first must prove that he had an “objectively serious medical need,” which the

Eleventh Circuit defines as “one that has been diagnosed by a physician as

mandating treatment or one that is so obvious that even a lay person would

easily recognize the necessity for a doctor’s attention.” Goebert v. Lee Cnty., 510

9

F.3d 1312, 1326 (11th Cir. 2007). Under this standard, a “serious medical need”

is one that, “if left unattended, poses a substantial risk of serious harm.” Mann

v. Taser Int’l, Inc., 588 F.3d 1291, 1307 (11th Cir. 2009).

Even if a plaintiff can demonstrate he had a serious medical need, “the

deliberate-indifference standard sets an appropriately high bar.” Swain v.

Junior, 961 F.3d 1276, 1285 (11th Cir. 2020). A deliberate indifference claim

requires a plaintiff to show the defendant acted with “subjective recklessness

as used in the criminal law.” Wade v. McDade, 106 F.4th 1251, 1255 (11th Cir.

2024) (en banc) (quoting in part Farmer v. Brennan, 511 U.S. 825, 839 (1994)).

Under the “subjective recklessness” standard, a prisoner-plaintiff “must show

that the defendant official was subjectively aware that his own conduct―[] his

own actions or inactions―put the plaintiff at substantial risk of serious harm.”

Id. at 1258, 1262. Establishing negligence is insufficient. See, e.g., Farmer, 511

U.S. at 835 (“[Deliberate indifference describes a state of mind more

blameworthy than negligence.”); Wilson v. Seiter, 501 U.S. 294, 299 (1991) (“It

is obduracy and wantonness, not inadvertence or error in good faith, that

characterize the conduct prohibited by the Cruel and Unusual Punishments

Clause ….” (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986))).

Defendant Selph carries his burden to demonstrate Plaintiff did not have

a serious medical need of which he (Selph) was aware. A physical examination

10

revealed no acute injury, and Defendant Selph documented that Plaintiff had

no complaints of pain. See Selph Exs. 1, 2. A non-Defendant medical provider

reviewed and signed off on the physical evaluation. See Selph Ex. 1.

Contrary to Plaintiff’s contention, there is no “genuine issue of material

fact” whether he sustained an injury. See Pl. Selph Resp. at 2. He provides no

contradicting medical evidence showing he sustained an injury to his ribs from

the use-of-force incident, and his reliance on the December 2, 2021 Grievance

Response is insufficient. Although the grievance responder indeed noted that

a review of Plaintiff’s records showed he had an “acute injury . . . in the rib

area,” the grievance responder does not appear to have been a medical provider

but rather was a Medical Records Custodian, or “MCR.” See Pl. Ex. at 1. In

other words, the December 2, 2021 Grievance Response is not evidence of an

injury but constitutes a “mere scintilla of evidence,” which is insufficient to

overcome summary judgment. See generally Goodman v. Kimbrough, 718 F.3d

1325, 1332 (11th Cir. 2013) (“[T]o defeat a motion for summary judgment, [the

non-moving party] must adduce specific evidence from which a jury could

reasonably find in his favor; ‘[t]he mere existence of a scintilla of evidence in

support of [his] position will be insufficient.’” (second and third alterations in

original) (quoting Anderson, 477 U.S. at 252)).

11

Importantly, Plaintiff does not produce the purported records the

grievance responder reviewed, and the record of the post-use-of-force

examination indisputably shows there was “no” acute injury observed or

reported, suggesting the grievance responder misread the record or was

referring to a different record that no party has disclosed.7 On the post-use-of-

force examination record, the word “no” was written as a symbol: a circle with

a slash through it. Similarly, the body diagram does not contain “circles”

indicating areas of injury, as Plaintiff contends. Rather the “circles” are larger

versions of the abbreviation for “no”—each has a slash through it, indicating

there was no physical injury observed on any portion of Plaintiff’s body.

In short, there is no evidence showing Plaintiff had a serious medical

need of which Defendant Selph was aware on November 11, 2021. Even if

Defendant Selph performed a perfunctory, incomplete, or inadequate medical

assessment, such conduct amounts to negligence, not deliberate indifference.

Moreover, assuming Plaintiff told Defendant Selph he was in pain, and

Defendant Selph refused to give him pain medication or ice, Plaintiff’s claim

7 In his response to Defendant Selph’s motion to dismiss, Plaintiff primarily

relied on the December 2, 2021 Grievance Response to demonstrate he stated a

plausible claim against Defendant Selph. See Order (Doc. 48) at 10–11. In ruling on

Defendant Selph’s motion to dismiss, the Court had to accept Plaintiff’s allegations

as true, including that he had sustained an injury. However, on summary judgment,

a different standard applies. Plaintiff may no longer rely on the unsubstantiated

allegations in his Amended Complaint. See Celotex Corp., 477 U.S. at 324.

12

amounts to no more than a dispute about medical treatment. Accordingly,

Defendant Selph’s Motion will be granted.

V. FDC Defendants’ Motion

The FDC Defendants invoke qualified immunity, arguing they were

acting in the scope of their discretionary duties at the relevant times, and

Plaintiff points to no evidence showing they violated his constitutional rights.

See FDC Mot. at 9–10. Defendants argue a use of force was warranted because

Plaintiff disobeyed lawful orders and assaulted Defendant Boone. Id. at 12–13.

Additionally, they note that Plaintiff’s unsupported allegation that Defendant

Boone lied about finding a weapon in retribution for Plaintiff’s PREA

complaint against him is disputed by the records, which show Plaintiff did not

have an active PREA complaint against Defendant Boone at the time but

rather filed one after the incident. Id. at 7, 12.

In his Response, Plaintiff notes that Defendants have not addressed his

specific allegations regarding Defendants Montague and Norton “attack[ing]”

him or that Defendant Boone “press[ed] his hardened penis against [his]

buttocks.” See Pl. FDC Resp. at 1. He also says the evidence of the date on

which he made his PREA complaint against Defendant Boone “has clearly been

tampered with”; he properly exhausted his administrative remedies (a point

Defendants do not raise or dispute); and Defendants are not entitled to

13

qualified immunity because the video evidence shows the “sexual assault” as

well as “Defendants Montague and Norton . . . deliberately violating Chapter

33-602.210(4)(b)3 and 33-602.210(4)(c)2,”8 and the December 2, 2021

Grievance Response “support[s] that [he] arrived to the post use of force

medical exam with a severe rib injury.” Id. at 2–4.

Prison officials sued in their individual capacities are “entitled to

qualified immunity for [their] discretionary actions unless [they] violated

‘clearly established statutory or constitutional rights of which a reasonable

person would have known.’” Black v. Wigington, 811 F.3d 1259, 1266 (11th Cir.

2016) (quoting Case v. Eslinger, 555 F.3d 1317, 1325 (11th Cir. 2009)).

Qualified immunity allows government employees to exercise their official

duties without fear of facing personal liability. Alcocer v. Mills, 906 F.3d 944,

951 (11th Cir. 2018). The doctrine protects all but the plainly incompetent or

those who knowingly violate an inmate’s constitutional rights. Id. In other

words, even if a prison official makes a decision that is later found to be

8 Chapter 33-602.210 of the Florida Administrative Code (FAC) governs “Use[s]

of Force” by prison officials. Subsection (4)(b)3 provides, “Inmates shall not be carried,

dragged, or lifted by restraint devices,” and subsection (4)(c)2 governs the protocol for

video recording reactionary uses of force. It is unclear why Plaintiff cites these

provisions of the FAC in his Response to the FDC Defendants’ Motion. He does not

describe any facts suggesting any Defendant violated these provisions. Regardless, a

prison official’s violation of state law or FDC policies or procedures is not a

constitutional violation actionable under 42 U.S.C. § 1983. See Magluta v. Samples,

375 F.3d 1269, 1279 n.7 (11th Cir. 2004) (“[T]he procedural requirements set out in

[a state] regulation are not themselves constitutional mandates.”).

14

constitutionally deficient, the official is entitled to qualified immunity if the

decision was based on a reasonable misapprehension of the law. Taylor v.

Riojas, 592 U.S. 7, 8 (2020) (citing Brosseau v. Haugen, 543 U.S. 194, 198

(2004)).

Upon invoking qualified immunity, a defendant bears the initial burden

to demonstrate he was performing discretionary duties at the relevant times.

Alcocer, 906 F.3d at 951. Plaintiff does not dispute that Defendants were acting

within the scope of their discretionary duties when the incident occurred. As

such, the burden shifts to Plaintiff, who must point to facts that, accepted as

true, demonstrate each Defendant violated a constitutional right that was

clearly established at the time. Id. (“Because § 1983 ‘requires proof of an

affirmative causal connection between the official’s acts or omissions and the

alleged constitutional deprivation,’ each defendant is entitled to an

independent qualified-immunity analysis as it relates to his or her actions and

omissions.”).

The Eighth Amendment “prohibits the unnecessary and wanton

infliction of pain, or the infliction of pain totally without penological

justification.” Ort v. White, 813 F.2d 318, 321 (11th Cir. 1987). At the same

time, it is well understood that prison guards, who are charged with

maintaining order and protecting inmates and staff, may use force when

15

necessary. Whitley v. Albers, 475 U.S. 312, 320–21 (1986); Williams v. Burton,

943 F.2d 1572, 1575 (11th Cir. 1991). Accordingly, courts must balance an

inmate’s right to be free from cruel and unusual punishment with a prison

official’s obligation to ensure a safe and secure institution. Ort, 813 F.2d at

321–22.

A prisoner against whom force is used to restore order demonstrates an

Eighth Amendment violation “only if the measure taken ‘inflicted unnecessary

and wanton pain and suffering’ caused by force used ‘maliciously and

sadistically for the very purpose of causing harm.’” Williams, 943 F.2d at 1575.

Officers may use chemical agents to quell a disturbance so long as a valid

penological reason supports its use and it is not used in “quantities greater

than necessary or for the sole purpose of punishment or the infliction of pain.”

Thomas v. Bryant, 614 F.3d 1288, 1310 (11th Cir. 2010) (“[T]he use of chemical

agents on recalcitrant prisoners is not per se unconstitutional.” (quoting in part

Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984))). See also Sconiers v.

Lockhart, 946 F.3d 1256, 1264 (11th Cir. 2020) (acknowledging “pepper-spray”

may be used to subdue an inmate when penologically necessary); Danley v.

Allen, 540 F.3d 1298, 1307 (11th Cir. 2008), overruled on other grounds as

recognized in Randall v. Scott, 610 F.3d 701, 709–10 (11th Cir. 2010) (“Pepper

spray is an accepted non-lethal means of controlling unruly inmates.”).

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Regardless of the type of force involved, whether an officer used more

force than necessary to quell a disturbance or regain control of a prisoner

requires consideration of the “Whitley factors”: the need for force; the extent of

force used in relation to the prisoner’s conduct; the threat of harm the prisoner

posed to others; whether the officer tried to “temper the severity of a forceful

response”; and the injuries inflicted. See Williams, 943 F.2d at 1575; Whitley,

475 U.S. at 321. See also Skrtich v. Thornton, 280 F.3d 1295, 1300 (11th Cir.

2002). A prisoner’s lack of an injury is not dispositive but can be “evidence of

the kind or degree of force that was used by [an] officer.” Charles v. Johnson,

18 F.4th 686, 700 (11th Cir. 2021) (citing Crocker v. Beatty, 995 F.3d 1232, 1251

(11th Cir. 2021)).

In applying the Whitley factors, courts should “give a wide range of

deference to prison officials acting to preserve discipline and security.” Cockrell

v. Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007). Corrections officials are not

required to “convince every inmate that their orders are reasonable and well-

thought out,” and “[c]ertainly . . . are not required to do so where an inmate

repeatedly fails to follow those orders.” Danley, 540 F.3d at 1307. As such,

“courts must determine whether the evidence goes beyond a mere dispute over

the reasonableness of a particular use of force or the existence of arguably

superior alternatives.” Whitley, 475 U.S. at 322. A case should not go to the

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jury “[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.” Id.

The Whitley factors do not apply when a prisoner claims an officer

sexually abused him because “[a] sexual assault necessarily violates the Eighth

Amendment.” See DeJesus v. Lewis, 14 F.4th 1182, 1196 (11th Cir. 2021)

(discussing Sconiers, 946 F.3d at 1259). “In order for a prisoner to meet his

burden on all elements of his Eighth Amendment claim, then, he need only

show that the prison official committed a sexual assault.” Id. A sexual assault

occurs “when the prison official . . . engages in a sexual act with the prisoner,

and that act was for the official’s own sexual gratification, or for the purpose

of humiliating, degrading, or demeaning the prisoner.” Id.

Plaintiff alleges the following conduct violated his Eighth Amendment

rights: Defendant Boone “press[ed] his hardened penis against [his] buttocks”

and lied about finding a knife in his personal property, apparently as an excuse

to punish him; and Defendants Montague and Norton kicked him while he was

restrained. See Am. Compl. at 10–12; Pl. FDC Resp. at 2–4. His Eighth

Amendment failure-to-protect claim against Warden Polk is dependent on his

underlying claim of excessive force or sexual assault against Defendant Boone.

See Am. Compl. at 11–12; Pl. FDC Resp. at 3.

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As to the claim against Defendant Boone, according to the clear, reliable

video evidence and Plaintiff’s own allegations, Plaintiff’s conduct prompted a

reactionary use of force. When Defendant Boone allegedly discovered a weapon

in Plaintiff’s belongings, Plaintiff and his cellmate were standing unattended

and unsecured in the hallway while Defendant Boone was inside their cell and

a third inmate (an orderly) was cleaning. See Video Ex. Defendant Boone

ordered Plaintiff to submit to hand restraints, and Plaintiff admittedly refused

to comply, ran down the hall, and struck Defendant Boone, causing them both

to fall to the floor. See Am. Compl. at 10. See also Video Ex.

Even if Defendant Boone lied about finding a knife in Plaintiff’s

belongings, Plaintiff does not have a constitutional right to be free from false

accusations by a prison official. See Wagner v. Smith, No. 5:06-cv-11-MCR-

EMT, 2006 WL 2482782, at *3 (N.D. Fla. Aug. 25, 2006) (“[T]he filing of false

disciplinary charges against an inmate does not alone amount to a

constitutional violation.”). According to the undisputed evidence, Plaintiff

disobeyed Defendant Boone’s order and ran away from him when he was the

only officer on the wing with Plaintiff and two other inmates who also were out

of their cells and not in handcuffs. See Video Ex. Thus, under the Whitley

factors, a reactionary use of force was justified, and the force used was minimal

and tempered—a brief spray of chemical agents that mostly missed Plaintiff

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and which Plaintiff had an opportunity to wash off in a decontamination

shower.

Although a sexual assault constitutes an Eighth Amendment violation if

proven, the video evidence shows that Defendant Boone was not physically

positioned to have “press[ed]” his penis against Plaintiff’s buttocks. See Video

Ex. When Defendant Boone caught up to Plaintiff after Plaintiff ran down the

hall, the two were facing each other. See id. When the two fell to the floor,

Plaintiff landed face-first on top of Defendant Boone. See id. Plaintiff

essentially was straddling Defendant Boone, but there was nothing sexual

about the encounter. See id. On the video, Defendant Boone can be seen flailing

his legs around attempting to release himself from underneath Plaintiff. See

id. Even if Plaintiff felt something “hard” that he presumed was Defendant

Boone’s penis, Plaintiff points to no evidence showing Defendant Boone

“engaged in a sexual act with [Plaintiff] . . . for [his] own sexual gratification,

or for the purpose of humiliating, degrading, or demeaning [Plaintiff].” See

DeJesus, 14 F.4th at 1196. On the contrary, the video evidence shows that

Defendant Boone was in a defensive, submissive position during the short time

he and Plaintiff were struggling on the floor. See Video Ex. If anyone was

humiliated or degraded from the incident, it was Defendant Boone, not

Plaintiff.

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As to the claim against Defendants Montague and Norton, Plaintiff does

not clearly state in his Amended Complaint when they allegedly kicked him or

where in the prison the incident occurred. See Am. Compl. at 11. He suggests

it occurred after he was carried out of his wing to be taken to the

decontamination shower. See id. The video evidence does not document that

transition. See Video Ex. Plaintiff does not clarify his allegations against

Defendants Montague and Norton in his Response to the FDC’s Motion. See

generally Pl. FDC Resp. He does not repeat in his Response that Defendants

Montague or Norton kicked him, see id., and the video evidence does not show

any officer kicking him, see Video Ex. Plaintiff’s unsworn, unsubstantiated

allegations that Defendants kicked him are insufficient to carry his burden in

overcoming a defense of qualified immunity.

In his Response, Plaintiff seems to suggest the “attack” occurred when

he “was picked up and carried away.” See Pl. FDC Resp. at 1. Given he cites to

a provision of the FAC dealing with carrying inmates, the Court construes his

argument to be that Defendants did not follow protocol or procedure in

executing the “four-man carry.” See Pl. FDC Resp. at 1, 3. As already noted,

see supra note 8, a prison official’s violation of policy or state law is not

actionable as a constitutional violation under § 1983. Thus, assuming

Defendant Norton (who was the only Defendant who physically carried

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Plaintiff) executed the “four-man carry” improperly, or Defendant Montague

saw that officers were violating procedures, such conduct does not amount to

an Eighth Amendment violation.

Finally, Plaintiff’s claim against Warden Polk necessarily fails because

there was no underlying constitutional violation. See Mann, 588 F.3d at 1308

(explaining that liability against a supervisor for the acts of a subordinate

depend on an underlying constitutional violation by the subordinate; if the

underlying claim fails, the claim against the supervisor fails). To the extent

Plaintiff claims Warden Polk failed to separate him from Defendant Boone

after Plaintiff submitted a PREA complaint, Plaintiff does not allege or present

evidence showing Warden Polk was “subjectively aware” that Plaintiff was at

“substantial risk of serious harm” but failed to respond “reasonably to the risk.”

See Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003). Indeed, the FDC

Defendants submit evidence showing Plaintiff submitted a PREA complaint

two days after the November 11, 2021 incident, see FDC Ex. B, and Plaintiff

offers nothing but uncorroborated accusation to contradict the FDC’s evidence,

see Pl. FDC Resp. at 2 (claiming the “written version” of his PREA complaint

“has clearly been tampered with”). For the reasons stated, the FDC

Defendants’ Motion will be granted.

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Accordingly, it is now

ORDERED:

1. Defendant Selph’s Motion for Summary Judgment (Doc. 76) is

GRANTED.

2. The FDC Defendants’ Motion for Summary Judgment (Doc. 78) is

GRANTED.

3. The Clerk is directed to enter judgment in favor of Defendants,

terminate any motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, this 30th day of May

2025.

J) / ‘4

fd Jia. | bz OA

BRIAN. DAVIS

United States District Judge

Jax-6

C:

Arsenio Decord Stewart

Counsel of Record

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