FORD

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

KENNETH WARREN FORD,

Plaintiff,

v. Case No.: 3:24cv570/MW/ZCB

CHRISTOPHER HUGHES, et al.,

Defendants.

____________________________________/

REPORT AND RECOMMENDATION

This is a pro se prisoner civil rights case filed under 42 U.S.C.

§ 1983. Defendants have moved to dismiss (Doc. 53), and Plaintiff has

responded in opposition (Doc. 61). For the reasons below, Defendants’

motion should be denied.

I. Summary of Plaintiff’s Factual Allegations

Plaintiff’s second amended complaint names three employees of the

Florida Department of Corrections as Defendants: (1) Captain

Christopher Hughes; (2) Lieutenant Christy Wheaton; and (3) Major

Charles Richter. Plaintiff sues Defendants in their individual capacities.

(Doc. 40 at 2-3).

On August 31, 2021, at Santa Rosa Correctional Institution,

Plaintiff was on close management status when he was ordered to move

to a new cell. Plaintiff states that close management inmates are

separated from the general prison population for security reasons, and

he alleges that Defendants know the close management procedures for

dangerous inmates. (Id. at 5-6).

When Plaintiff arrived at his new cell, he was told he would have to

move again. Plaintiff was then taken to a different cell to be housed with

inmate Joseph McNeil. McNeil was on close management for “a pattern

of predatory actions which makes [him] a threat to others.” Plaintiff

claims McNeil was frequently disciplined for threats, battery on inmates,

and stabbing his cellmates. Plaintiff alleges that Defendants, through

personal involvement, were aware of McNeil’s reputation for stabbing his

cellmates and the risk of harm he posed to other inmates. (Id. at 6-7).

Two non-party officers who moved Plaintiff also knew of McNeil’s

violent reputation and the risk Plaintiff faced if housed with McNeil. The

two officers called Defendant Hughes about the situation. When

Defendant Hughes arrived, he allegedly said he was “not with his bullshit

today” while walking toward McNeil’s cell. Several inmates warned

Defendant Hughes about McNeil stabbing his prior cellmates, but

Defendant Hughes merely “looked agitated while shaking his head[.]”

(Id. at 7).

Once Plaintiff arrived at McNeil’s cell, McNeil told Defendant

Hughes that Plaintiff was not coming in and “if you put him in here, it’s

gonna be problems.” Other inmates continued warning Defendant

Hughes not to put Plaintiff in McNeil’s cell. Despite hearing these

warnings, Defendant Hughes allegedly said, “oh he’s coming in there . . .

you don’t run nothing inmate!” McNeil then said, “I will stab [Plaintiff]

like I did my bunky before if you put him in here with me!” Other inmates

continued warning Defendant Hughes of the danger of placing Plaintiff

in the cell with McNeil. (Id. at 8-9).

Defendant Hughes allegedly looked at Plaintiff and McNeil to size

up the two inmates. McNeil showed Defendant Hughes his stabbing-

related disciplinary reports and said, “you know me and what I will do . .

. so you better do your paperwork and find that dude another cell.”

Defendant Hughes responded by saying that he was going to “gas”

McNeil for refusing to allow Plaintiff into the cell. Plaintiff was taken to

a holding cell as Defendant Hughes ordered other officers to prepare to

use chemical agents on McNeil. Before the chemical agents were used,

however, McNeil relented and agreed to allow Plaintiff to enter the cell.

Defendant Hughes threatened to use chemical agents on inmate McNeil

until Plaintiff was fully inside the cell. An officer then escorted Plaintiff

to the front of McNeil’s cell. (Id. at 9-10).

At the front of the cell, McNeil questioned Plaintiff about his

sexuality and close management status. Plaintiff told Defendant Hughes

that the two inmates were incompatible due to their different close

management statuses. Another inmate protested to Defendant Hughes

about putting Plaintiff in McNeil’s cell. But Defendant Hughes

responded that Plaintiff was going into the cell. Defendant Hughes then

ordered Plaintiff to enter McNeil’s cell. (Id. at 10-11).

Prior to cell inspection on September 1, 2021, several inmates told

Plaintiff they would inform the inspecting officers about McNeil and the

risk he posed to Plaintiff. While Defendants Richter and Wheaton were

inspecting cells, another inmate told them about McNeil’s history of

stabbings and told them Plaintiff could get killed by being placed with

McNeil. Defendant Richter told Plaintiff his concerns would be

addressed after cell inspection ended. Defendants Richter and Wheaton

continued the inspection. Defendant Wheaton allegedly told other

inmates that the two already knew about the issue involving McNeil and

Plaintiff. (Id. at 11-13).

Plaintiff alleges that he told Defendants Richter and Wheaton that

McNeil had threatened him, and Plaintiff requested a move for safety

reasons. Defendant Richter responded that the two inmates’ close

management statuses did not matter and that if Plaintiff thought

otherwise, he needed to “write it up.” Defendant Wheaton listened to this

response but said nothing. McNeil then approached the cell door and told

Defendant Richter that he had mental health issues and needed to be

housed alone. Defendant Wheaton then told McNeil to “stop being a

bitch” before she walked away from the cell with Defendant Richter. (Id.

at 13).

On the evening of September 2, 2021, an officer prepared to take

Plaintiff and McNeil to the showers. McNeil put his hands through the

cell’s food flap to be handcuffed. After his left wrist was cuffed, McNeil

pulled back his hands. He then used the handcuffs to beat Plaintiff in

the head eight to ten times. The officer used chemical agents to stop

McNeil’s assault on Plaintiff. Plaintiff alleges he suffered cuts, swelling,

severe pain, and scarring from McNeil’s attack. (Id. at 14).

Plaintiff asserts Eighth Amendment failure to protect and

deliberate indifference claims against Defendants regarding the attack

by McNeil. (Id. at 15-17). For relief, Plaintiff seeks monetary damages.

(Id. at 17-18).

II. Motion to Dismiss Standard

Defendants have moved to dismiss under Rule 12(b)(6) of the

Federal Rules of Civil Procedure. To survive dismissal under Rule

12(b)(6), “a complaint must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). The plausibility standard

is met only where the facts alleged enable “the court to draw the

reasonable inference that the defendant is liable for the misconduct

alleged.” Id. Plausibility means “more than a sheer possibility that a

defendant has acted unlawfully.” Id. “Where a complaint pleads facts

that are merely consistent with a defendant’s liability, it stops short of

the line between possibility and plausibility of entitlement to relief.” Id.

(cleaned up).

At the motion to dismiss stage, the Court accepts the allegations in

the complaint as true and construes them in the light most favorable to

the plaintiff. McClinton v. Warden, Baldwin State Prison, 172 F.4th

1276, 1281 (11th Cir. 2026). Additionally, a pro se plaintiff’s complaint

must be liberally construed. Danglar v. Dep’t of Corr., 50 F.4th 54, 56 n.4

(11th Cir. 2022).

III. Discussion

Defendants are not entitled to qualified immunity.

In their motion, Defendants seek dismissal based on qualified

immunity. (Doc. 53 at 14-36). Although qualified immunity is “typically

addressed at the summary judgment stage of a case, it may be raised and

considered on a motion to dismiss.” Corbitt v. Vickers, 929 F.3d 1304,

1311 (11th Cir. 2019) (cleaned up). To overcome qualified immunity at

the motion to dismiss stage, “the operative complaint must plausibly

plead that [1] the defendant violated the plaintiff’s federal rights and [2]

those rights were clearly established.” Jackson v. City of Atlanta, Ga., 97

F.4th 1343, 1350 (11th Cir. 2024).1

1 It appears to be undisputed that Defendants were performing a

discretionary duty, so no analysis of that portion of the qualified

immunity test is required. See Charles v. Johnson, 18 F.4th 686, 698

(11th Cir. 2021) (stating that no analysis of discretionary duty was

required because the issue was undisputed).

A. The violation of a federal right

The Court will first discuss whether Plaintiff has plausibly alleged

that Defendants violated a federal right. Plaintiff claims Defendants

violated the Eighth Amendment, which “requires prison officials to take

reasonable measures to guarantee the safety of the inmates.” Cox v.

Nobles, 15 F.4th 1350, 1357 (11th Cir. 2021) (cleaned up). This “duty to

protect encompasses protecting prisoners from violence at the hands of

other prisoners.” Id. (cleaned up). But prison officials do not violate the

Eighth Amendment by a “merely negligent failure to protect an inmate

from attack” by another inmate. Marbury v. Warden, 936 F.3d 1227,

1238 (11th Cir. 2019). And not “every injury suffered by one prisoner at

the hands of another” leads to “liability for prison officials responsible for

the victim’s safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994).

A prisoner asserting an Eighth Amendment failure to protect claim

must plausibly allege three elements: (1) the inmate faced a substantial

risk of serious harm; (2) prison officials acted with deliberate indifference

to that risk; and (3) causation. Cox, 15 F.4th at 1357-58. Each element

will be discussed below.

1. Substantial risk of serious harm

The substantial risk of serious harm element is assessed

“objectively,” and it requires conditions that were “sufficiently serious” to

violate the Eighth Amendment. McClinton, 172 F.4th at 1282. The

Eleventh Circuit has “recognized that inmate-on-inmate violence can

amount to serious harm.” Scott v. Miami Dade Cnty., 657 F. App’x 877,

881 (11th Cir. 2016). But threats of violence from one inmate to another

inmate are, by themselves, typically insufficient to show “a substantial

risk” of serious harm. Marbury, 936 F.3d at 1236. Instead, there must

be something more from which “a prison official could have concluded

that a particular threat evidenced a substantial threat, rather than the

mere possibility, of serious harm.” Id. Put another way, an inmate can

establish a “substantial risk of serious harm where he has given prison

officials further information enabling them to conclude that the risk was

substantial and not merely possible.” Id.

Here, Plaintiff has plausibly alleged a substantial risk of serious

harm. Plaintiff has alleged that all three Defendants were aware of

McNeil’s well-known history of harming his cellmates. (Doc. 40 at 7). As

to Defendant Hughes specifically, multiple inmates allegedly warned him

that Plaintiff was in danger if housed with McNeil because of McNeil’s

history of stabbing his cellmates. (Id. at 7-8, 10-11). Indeed, McNeil

himself allegedly told Defendant Hughes that Plaintiff was “not coming

in . . . and if you put him in here, it’s gonna be problems.” (Id. at 8).

McNeil subsequently repeated this warning to Defendant Hughes when

he allegedly said, “I will stab him like I did my bunky before if you put

him in here with me!” (Id.). It was only after McNeil was threatened

with chemical agents that he relented and allowed Plaintiff into his cell.

(Id. at 10). After being put in the cell with McNeil, Plaintiff told

Defendant Hughes that he was not compatible with McNeil and needed

to be moved. (Id.).

As to Defendants Richter and Wheaton, other inmates told them

about McNeil’s prior stabbings and the risk Plaintiff faced if housed with

McNeil. (Id. at 11-13). One inmate allegedly told Defendants Richter

and Wheaton that McNeil had threatened to stab Plaintiff if he was put

in McNeil’s cell—a statement Plaintiff confirmed to Defendants Richter

and Wheaton. (Id. at 12-13). With Defendant Wheaton listening,

Plaintiff told Defendant Richter that inmate McNeil threatened to stab

him and that he needed to be moved for safety reasons. (Id. at 13).

Moreover, McNeil allegedly told Defendants Richter and Wheaton that

he needed to be housed alone because he and Plaintiff were incompatible.

(Id.).

These allegations, accepted as true, plausibly show a substantial

risk of harm because Plaintiff has alleged “more than some unspecified

risk of harm.” Nelson v. Tompkins, 89 F.4th 1289, 1297 (11th Cir. 2024)

(cleaned up). Given the allegations that McNeil had a known (and recent)

history of stabbing his cellmates, that McNeil had specifically threatened

to harm Plaintiff if he was placed in the cell, and that multiple people

informed Defendants of their concerns about Plaintiff’s safety,

Defendants had enough information “to conclude that the risk was

substantial and not merely possible.” Marbury, 936 F.3d at 1236.

This is not a case involving a speculative possibility of a future

attack. Nor is it one involving a vague threat to an inmate by his

cellmate. It is, instead, a case with a specific threat made by a violent

inmate that was reported to prison officials—by Plaintiff, other inmates,

and by McNeil himself—and ignored by prison officials shortly before

Plaintiff was assaulted by McNeil. See Rodriguez v. Sec’y for Dep’t of

Corr., 508 F.3d 611, 618-19, 620-22, n.17 (11th Cir. 2007) (finding a

substantial risk of harm where prison officials were “verbally informed .

. . on at least two occasions that [the plaintiff’s] life had been threatened

by members of his former gang and that, to avoid injury, he needed . . .

to be transferred”); see also Bowen v. Warden Baldwin State Prison, 826

F.3d 1312, 1322 (11th Cir. 2016) (“Deputy Warden Underwood and

Officer Davis . . . knew specifically that [Merkerson] had committed a

‘High–Assault’ against his previous cellmate and that the assault had

precipitated his transfer and segregation in Unit K–3. Far from a

generalized awareness of Merkerson’s propensity to misbehave, this

allegation indicates a degree of specificity in the risk of harm posed to

Mr. Bowen that simply was not present in Carter.”). Accordingly,

Plaintiff has plausibly alleged a substantial risk of serious harm. See

Webb v. Warden, No. 4:12cv308, 2014 WL 50742, at *1 (N.D. Fla. Jan. 7,

2014) (declining to dismiss claim where plaintiff alleged that prior to the

attack, prison records showed the attacker was a safety threat, had a

history of attacking other inmates, was classified as high risk, and that

prison officials were aware of his violent record when he was placed into

a prison dormitory with inmates of a different safety classification).

2. Deliberate indifference

The Court will now turn to the second element, which is deliberate

indifference. Deliberate indifference requires the plaintiff to plausibly

allege subjective recklessness, which means “that the defendant was

actually, subjectively aware that his own conduct caused a substantial

risk of serious harm to the plaintiff . . . .” Wade v. McDade, 106 F.4th

1251, 1262 (11th Cir. 2024) (en banc). Subjective recklessness “must be

based on more than a generalized or abstract knowledge of a danger to

the prisoner; the official must be aware of a specific risk.” McClinton,

172 F.4th at 1283. In other words, a prison official “must both be aware

of facts from which the inference could be drawn that a substantial risk

of serious harm exists, and he must also draw the inference.” Id. at 1284.

Here, Plaintiff has plausibly alleged facts sufficient to satisfy that

standard. As mentioned above, Plaintiff alleges that he and other

inmates warned Defendants about McNeil’s history of stabbings and the

risk Plaintiff faced by being housed with him. Defendant Hughes was

told by Plaintiff, other inmates, and McNeil himself that Plaintiff was in

danger if housed with McNeil. Defendants Richter and Wheaton were

told by Plaintiff and other inmates about McNeil’s violent past, the risk

Plaintiff faced, and McNeil’s threat to harm Plaintiff if he was placed in

McNeil’s cell. And prior to these concerns being raised, all three

Defendants were allegedly aware of McNeil’s history of violence directed

at his cellmates.

These allegations are sufficient to plausibly state that Defendants

knew of a substantial risk of harm to Plaintiff. See Rodriguez, 508 F.3d

at 618-19 (finding inmate testimony that he informed defendants of

threats and requested to be placed in protective custody was sufficient to

create a triable issue regarding deliberate indifference); see also Bowen,

826 F.3d at 1324 (concluding an inmate plausibly alleged deliberate

indifference where prison officials allegedly “knew the troubling details

of Merkerson’s severe mental condition; they knew of his recent assault

against his cellmate; and they knew that, under the Placement

Guidelines, he should have been housed alone” and allegedly “were

actually aware of a substantial and seemingly conspicuous risk posed to

[the plaintiff] by allowing him to remain in the small cell with

Merkerson”).

Although a defendant who knew of a substantial risk “cannot be

found liable . . . if he ‘responded reasonably to the risk,’” Wade, 106 F.4th

at 1262, here Plaintiff has plausibly alleged that Defendants’ response

was unreasonable. “An official responds to a known risk in an objectively

unreasonable manner if he knew of ways to reduce the harm but

knowingly declined to act or if he knew of ways to reduce the harm but

recklessly declined to act.” Rodriguez, 508 F.3d at 620 (cleaned up). If

Plaintiff’s allegations are proven true, a reasonable jury could conclude

that Defendants unreasonably responded by leaving Plaintiff in the cell

with McNeil.2 See Scott, 657 F. App’x at 883-84 (“Assuming that

Defendants did nothing, or next to nothing, in response to the threats

that Plaintiff had received, a jury could find that Defendants did not

respond reasonably to the substantial risk of serious harm Plaintiff

faced.”); see also Jenkins v. Soder, No. 4:22cv268, 2023 WL 3026001, at

2 Defendants argue that they responded reasonably by relying on prison

housing officials’ decision to place Plaintiff and McNeil together and that

housing disputes are not appropriate for a court to resolve. (Doc. 53 at

26-28). Even if housing assignments are generally within prison officials’

discretion, that does not preclude a finding of unreasonableness where

prison officials learned new information after a housing decision was

made. The case cited by Defendants in support of this argument is

factually distinguishable. In the cited case, the statement regarding

prison officials’ discretion in housing assignments was made in the

context of a prisoner seeking a transfer to a different prison closer to his

home, not a prisoner asking to be moved to a new cell out of fear for his

safety. See Cordovano v. Dep’t of Corr., No. 4:14cv8, 2014 U.S. Dist.

LEXIS 24391, at *1-5 (N.D. Fla. Jan. 23, 2014).

*4 (N.D. Fla. Mar. 21, 2023) (“Given the notice of the substantial and

particularized threat, it was unreasonable for Soder to leave Allahad

unattended without restraints in Jenkins’ vicinity on the same day.”).

3. Causation

The third element requires that the plaintiff plausibly allege a

causal connection “between the officer’s failure to act reasonably and the

plaintiff’s injury.” Marbury, 936 F.3d at 1233. Although Defendants do

not appear to dispute this element, it is apparent that Plaintiff has

plausibly alleged causation. He has alleged a direct causal connection

between Defendants’ failure to take steps to protect him and the injuries

he sustained from the attack by McNeil.

Because Plaintiff’s factual allegations—when accepted as true and

liberally construed—are sufficient to state the three elements of an

Eighth Amendment failure to protect claim, he has plausibly alleged that

Defendants violated his Eighth Amendment right. The Court will now

turn to the second step of the qualified immunity analysis, which is

determining whether the right was clearly established.

B. The right was clearly established.

For purposes of the qualified immunity analysis, “the relevant,

dispositive inquiry is whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.” Caldwell

v. Warden, 748 F.3d 1090, 1102 (11th Cir. 2014) (cleaned up). There are

three ways that a right can be clearly established: (1) a Supreme Court

or Eleventh Circuit case “with indistinguishable facts clearly

establishing the constitutional right”; (2) a broad legal principle “within

the Constitution, statute, or case law that clearly establishes a

constitutional right”; or (3) the acts committed were “so egregious that a

constitutional right was clearly violated, even in the total absence of case

law.” Edwards v. Grubbs, 169 F.4th 1261, 1278-79 (11th Cir. 2026).

In the current case, the Court finds that the right Defendants

allegedly violated was clearly established in the second way because “the

broad principles of [the Eleventh Circuit’s] deliberate indifference

precedents clearly control” the alleged facts here. Nelson, 89 F.4th at

1299. The “broad-principles category encompasses situations in which

[the Eleventh Circuit’s] case law has sufficiently established a

constitutional right that every reasonable officer would know his conduct

was unlawful despite the fact that [the Eleventh Circuit] hadn’t yet

applied the principle to the specific facts of his case.” Jarrard v. Sheriff,

Polk Cnty., 115 F.4th 1306, 1324 (11th Cir. 2024). Thus, the Court need

not “parse out whether any” prior cases “involved indistinguishable facts

or circumstances.” Id. Instead, a principle is clearly established if the

Eleventh Circuit has “affirmed it in a variety of situations.” Id.

At the time of the alleged attack by McNeil, the Eleventh Circuit

had recognized that there is a clearly established broad principle that

“prison officials have a duty under the Constitution to take reasonable

action to protect prisoners from violence at the hands of other

prisoners[,]” and that “an officer violates this duty if he knows that one

prisoner poses a substantial risk of harm to another, yet fails to take any

reasonable action to separate them.” Nelson, 89 F.4th at 1299 (cleaned

up); see also Caldwell, 748 F.3d at 1102 (finding it clearly established

that “a prison guard violates a prisoner’s Eighth Amendment right when

that guard actually (objectively and subjectively) knows that one prisoner

poses a substantial risk of serious harm to another, yet fails to take any

action to investigate, mitigate, or monitor that substantial risk of serious

harm”). That clearly established broad principle covers the facts alleged

by Plaintiff here. Plaintiff has plausibly alleged that Defendants knew

McNeil posed a substantial risk of harm to Plaintiff. Yet Defendants

allegedly did nothing to mitigate that risk or protect Plaintiff from it. The

precedent cited above was sufficient to provide notice to Defendants that

their conduct was unlawful.3

For the reasons above, the allegations in Plaintiff’s second amended

complaint are sufficient to overcome Defendants’ assertion of qualified

immunity.4 As such, dismissal is unwarranted. The Court emphasizes

3 Defendants argue that Nelson is distinguishable from the allegations

here. (Doc. 53 at 32-35). The Court, however, is not relying on Nelson

under the “indistinguishable facts” method of showing a clearly

established right. The Court instead is relying on the broad principle

recognized in Nelson and other Eleventh Circuit cases holding that a

prison official has a duty “to take reasonable action to protect prisoners

from violence at the hands of other prisoners” and violates that duty “if

he knows that one prisoner poses a substantial risk of harm to another,

yet fails to take any reasonable action to separate them.” Nelson, 89

F.4th at 1299 (cleaned up).

4 Defendants argue that the Eleventh Circuit’s pre-Wade “flip-flopping”

on the precise mental state required for deliberate indifference means it

was not clearly established that Defendants’ actions were

unconstitutional in 2021. (Doc. 53 at 36). Defendants’ argument is

unpersuasive given the Supreme Court’s adoption and explanation of the

subjective recklessness standard for failure to protect cases some thirty

years prior to Wade in Farmer v. Brennan, 511 U.S. 825 (1994). Although

there might be something to the argument advanced by Defendants in

the context of deliberate indifference to serious medical needs cases, the

Court does not believe there is anything to the argument in the context

of failure to protect claims like those raised by Plaintiff today. See

that this determination is being made at the motion to dismiss stage,

which requires the Court to accept the factual allegations in Plaintiff’s

second amended complaint as true. Discovery may show that what really

happened is different from what Plaintiff says happened. And if that is

the case, then Defendants are free to raise the defense of qualified

immunity again in a motion for summary judgment.

IV. Conclusion

For the reasons above, it is respectfully RECOMMENDED that:

1. Defendants’ motion to dismiss (Doc. 53) be DENIED.

2. This case be recommitted to the undersigned for further

proceedings.

At Pensacola, Florida this 20th day of May 2026.

/s/ Zachary C. Bolitho

Zachary C. Bolitho

United States Magistrate Judge

McClinton v. Barry, No. 5:22cv109 (MTT), 2025 WL 491992, at *6 (M.D.

Ga. Feb. 13, 2025) (recognizing that Wade may be problematic for earlier

deliberate indifference to medical needs cases but explaining that it was

not problematic for failure to protect cases because “Farmer involved a

failure to protect claim and courts tend to hew more closely to Farmer in

failure to protect cases”), aff’d, 172 F.4th 1276 (11th Cir. 2026).

Notice to the Parties

Objections to the proposed findings and recommendations set forth

above must be filed within fourteen days of the date of this Report and

Recommendation. Any different deadline that may appear on the

electronic docket is for the Court’s internal use only and does not

control. An objecting party must serve a copy of the objections on all

other parties. A party who fails to object to the magistrate judge’s

findings or recommendations contained in a report and recommendation

waives the right to challenge on appeal the district court’s order based on

unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28

U.S.C. § 636.