# Grimage v. Gwara

> District Court, M.D. Florida · August 28, 2025

URL: https://www.frixlaw.com/law-library/cases/11130029

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 28, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11130029. Public record. Not legal advice.