# Stewart v. Boone

> District Court, M.D. Florida · May 30, 2025

URL: https://www.frixlaw.com/law-library/cases/11062548

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** May 30, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11062548

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

5
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.

7
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

8
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.”).

16
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

17
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.

18
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

19
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.

20
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11062548. Public record. Not legal advice.