Grimage v. Gwara

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

MICHAEL EUGENE GRIMAGE,

Plaintiff,

v. Case No. 3:23-cv-1032-MMH-SJH

A. M. GWARA,

Defendant.

________________________________

ORDER

I. Status

Plaintiff Michael Eugene Grimage, an inmate of the Florida penal

system, initiated this action on August 25, 2023, by filing a pro se Complaint

for Violation of Civil Rights under 42 U.S.C. § 1983 (Complaint; Doc. 1).1 In the

Complaint, he names Sergeant A.M. Gwara as the sole Defendant. See

Complaint at 2. Grimage alleges Sergeant Gwara used excessive force when he

sprayed Grimage with chemical agents. See id. at 3–5.

This matter is before the Court on Sergeant Gwara’s Motion for

Summary Judgment with Incorporated Memorandum of Law (Motion; Doc.

1 For all pleadings and documents filed in this case, the Court cites to the

document and page numbers as assigned by the Court’s Electronic Case Filing

System.

43). In support of the Motion, Sergeant Gwara has submitted exhibits. See

Docs. 43-1 through 43-3. Grimage filed a response in opposition to the Motion.

See Plaintiff’s Response to Defendant’s Motion for Summary Judgment

(Response; Doc. 47). Sergeant Gwara filed a Reply. See Defendant’s Reply to

Plaintiff’s Response to Defendant’s Motion for Summary Judgment (Reply;

Doc. 48). The Motion is ripe for review.

II. Summary Judgment Standard

Under Rule 56 of the Federal Rules of Civil Procedure (Rule(s)), “[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). 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).2 An

2 Rule 56 was revised in 2010 “to improve the procedures for presenting and

deciding summary-judgment motions.” Rule 56 advisory committee’s note 2010

Amends.

The standard for granting summary judgment remains

unchanged. The language of subdivision (a) continues to require

that there be no genuine dispute as to any material fact and that

the movant be entitled to judgment as a matter of law. The

amendments will not affect continuing development of the

decisional law construing and applying these phrases.

issue is genuine when the evidence is such that a reasonable jury could return

a verdict in favor of the non-moving party. 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). “When a moving party has

discharged its burden, the non-moving party must then go beyond the

pleadings, and by its own affidavits, or by depositions, answers to

interrogatories, and admissions on file, designate specific facts showing that

Id. “[A]lthough the interpretations in the advisory committee[’s] notes are not

binding, they are highly persuasive.” Campbell v. Shinseki, 546 F. App’x 874, 879 n.3

(11th Cir. 2013). Thus, case law construing the former Rule 56 standard of review

remains viable.

In citing to Campbell, the Court notes that it does not rely on unpublished

opinions as binding precedent; however, they may be cited in this Order when the

Court finds them persuasive on a particular point. See McNamara v. Gov’t Emps. Ins.

Co., 30 F.4th 1055, 1060–61 (11th Cir. 2022); see generally Fed. R. App. P. 32.1; 11th

Cir. R. 36–2 (“Unpublished opinions are not considered binding precedent, but they

may be cited as persuasive authority.”).

there is a genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d

590, 593–94 (11th Cir. 1995) (internal citations and quotation marks omitted).

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 appropriate, a court “must view

all evidence and make all reasonable inferences in favor of the party opposing

summary judgment.” 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)). “Summary judgment is improper, however, if the

evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 720 (11th

Cir. 2019) (quotation marks and citation omitted).

III. Grimage’s Allegations in the Complaint

Grimage alleges that on May 23, 2023, he requested to speak to Sergeant

Gwara’s supervisor to provide evidence that Sergeant Gwara contaminated

Grimage’s food tray. Complaint at 5. Grimage states that Sergeant Gwara got

angry, called Grimage to the cell door, and told him to look in the other

direction. Id. at 4. “[W]hen [Grimage] return[ed] to face [Sergeant Gwara], [he]

had [a] canister aimed directly at [Grimage’s] face.” Id. According to Grimage,

Sergeant Gwara sprayed him with chemical agents “directly into [his] mouth

and nostrils, inches away,” which caused Grimage to gasp for air and “black

out.” Id. at 4, 5. As a result of this incident, Grimage asserts he has swelling in

his neck, difficulty breathing, and persistent coughing. Id. at 5.

IV. Summary of the Arguments

In his Motion, Sergeant Gwara contends the Court should grant him

summary judgment because he is entitled to qualified immunity and because

Grimage failed to state a claim for relief under the Eighth Amendment. See

Motion at 5–11. In support, Sergeant Gwara relies on his responses to

interrogatories and video recordings from the prison on the date of the incident.

See Docs. 43-1; 43-2; 43-3. Through his response to interrogatories, Sergeant

Gwara states that on May 23, 2023:

[Grimage] had a bag of pills that he began to pull

several pills from and was in the process of swallowing

them. [Grimage] had already declared a psychological

emergency and I was waiting at the front of his cell for

the mental health professional to arrive. I ordered

[Grimage] to cease taking the pills and when

[Grimage] refused and continued his actions, I utilized

chemical agents to stop [Grimage]’s self-injuring

behavior. Chapter 33-602.210(2)(a), [Florida

Administrative Code], authorized the use of force

regarding saving the life on an inmate.

Doc. 43-2 at 2.

In his Response, Grimage asserts Sergeant Gwara has not included any

argument “to disprove ‘the genuine issues of material facts’” presented by

Grimage’s allegations. Response at 1–2. Grimage provides no exhibits with his

Response and provides no citations to the record.3 See generally Response. In

his Reply, Sergeant Gwara notes that Grimage failed to provide or cite to any

records contemplated for consideration under Rule 56 and argues that the

Court should thus consider the facts presented in the Motion as undisputed for

purposes of summary judgment pursuant to Rule 56(e)(2). Reply at 1–2.

V. Applicable Law

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). However, it is

well understood that prison guards, who are charged with maintaining order

and security, may use force when necessary to bring unruly inmates into

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

Burton, 943 F.2d 1572, 1575 (11th Cir. 1991).

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

3 The Court previously advised Grimage that if in responding to a motion for

summary judgment he “relies solely on allegations in an unverified complaint or

submits a response that fails to provide evidence or point to allegations in a verified

complaint to contradict the materials asserted by Defendant, the Court may accept

Defendant’s facts as true, which may result in final judgment in favor of Defendant.”

See Order; Doc. 5 at 4.

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.

. . . “[T]he 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.[4] 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.

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

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

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,

130 S. Ct. 1175. Instead, the Eighth Amendment

prohibits force that 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.

Id. at 1265–66 (internal citations cleaned up).

Notably, officers may use chemical agents 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, 614

F.3d at 1310–11 (“[I]t is well-established that the 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, 946 F.3d at

1264 (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”).

Regardless of the type of force involved, courts consider five distinct

factors when determining whether an officer applied force maliciously and

sadistically for the purpose of causing harm:

(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, 475

U.S. at 321; Hudson, 503 U.S. at 7). Notably, a lack of serious injury, while not

dispositive, is relevant to the inquiry:

“[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.[5] (quoting Whitley, supra, at 321, 106

S.Ct. 1078). 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)).[6]

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.

5 Hudson, 503 U.S. at 7.

6 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.”).

Wilkins, 559 U.S. at 37–38. Nevertheless, a prisoner’s injuries or lack thereof

may 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 considering the Whitley factors, courts must “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)). Moreover, corrections officials

are not required to “convince every inmate that their orders are reasonable and

well-thought out,” and “[c]ertainly . . . 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

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.

VI. Analysis

Here, Sergeant Gwara by reference to his sworn interrogatory response

and the exhibits submitted in support of his Motion, has met his burden of

showing there are no genuine issues of material fact to be determined at trial.

Florida Administrative Code Rule 33-602.210(2)(a)(7) authorizes department

staff to utilize force to “prevent an inmate from inflicting any self-injury or

from attempting suicide.” Sergeant Gwara’s unrefuted account demonstrates

he used a de minimus use of force (one spray of chemical agents) to respond to

an emergent situation of self-harm (Grimage taking pills after declaring a

psychological emergency) after Grimage failed to comply with Sergeant

Gwara’s orders (to stop ingesting the pills). See Doc. 43-2 at 1–2; see also

Bennett, 898 F.2d at 1533 (“Prison guards may use force when necessary to

restore order and need not wait until disturbances reach dangerous

proportions before responding.”); Moore v. Hunter, 847 F. App’x 694, 698 (11th

Cir. 2021) (“It is not ‘repugnant to the conscience of mankind’ that an officer .

. . might use chemical spray on an inmate to prevent his attempted suicide,

even if a more restrained response might have been preferable.”). Thus, the

Whitley factors considering the need for force, the relationship between the

need and amount of force used, as well as the extent of the threat to an inmate

all weigh in favor of Sergeant Gwara. Additionally, the handheld camera video

recording, Doc. 43-3, shows officers taking Grimage for a decontamination

shower quickly following the use of chemical agents which demonstrates an

effort made to temper the severity of the response. Lastly, there is no evidence

of injury before the Court. Indeed, during the handheld video recording, which

is over fourteen minutes in length, Grimage displays no physical distress or

difficulty breathing. See id. Thus, applying the Whitley factors to the evidence

presented, no reasonable jury would be able to find the use of excessive force

and return a verdict in favor of Grimage.

On this record, Sergeant Gwara discharged his burden, and Grimage is

required to present evidence to show that there is a genuine issue for trial. In

asserting there is a genuine issue, he must “support the assertions by: citing

to particular materials in the record, including depositions, documents,

electronically stored information, affidavits or declarations, stipulations . . .,

admissions, interrogatory answers, or other materials; or showing that the

materials cited do not establish the absence . . . of a genuine dispute.” Fed. R.

Civ. P. 56(c)(1)(A). Grimage has not done so. Grimage did not submit any

evidence or other documents, nor did he file an affidavit or statement under

the penalty of perjury to contradict Sergeant Gwara’s version of events. See

Walker v. Darby, 911 F.2d 1573, 1576 (11th Cir. 1990) (“A party opposing

summary judgment may not rest upon the mere allegations or denials in its

pleadings.”). While a court may consider a plaintiff’s verified complaint on

summary judgment, Grimage’s Complaint is not verified or sworn to under the

penalty of perjury.? Considering the record, the Court finds Sergeant Gwara is

entitled to the entry of summary judgment in his favor on Grimage’s claim that

Sergeant Gwara’s use of chemical agents constituted the use of excessive force

in violation of the Eighth Amendment.®

Accordingly, it is

ORDERED:

1. Sergeant Gwara’s Motion for Summary Judgment (Doc. 48) is

GRANTED.

2. The Clerk is directed to enter judgment in favor of Sergeant Gwara

and against Grimage, terminate any pending motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, this 28th day of

August, 2025.

MARCIA MORALES HOWARD

United States District Judge

7 The Complaint form includes a certification under Federal Rule of Civil

Procedure 11, see Doc. 1 at 15, but it is not verified or sworn to under penalty of

perjury. See Jaye v. United States, No. 2:22-cv-376-WKW, 2022 WL 2317226, at *1

n.1 (M.D. Ala. June 28, 2022) (“Rule 11 certification is not a substitute for an affidavit

or for a declaration under penalty of perjury under 28 U.S.C. § 1746.”); see also

Renfroe v. Nationstar Mortg., LLC, No. 3:20-cev-191-J-34JBT, 2020 WL 1046825, at

*2 (M.D. Fla. Mar. 4, 2020).

8 Because the Court finds Sergeant Gwara is entitled to summary judgment on

this basis, the Court need not consider the issue of qualified immunity.

13

JaxP-12

C: Michael Eugene Grimage, 415545

Counsel of Record