The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
KEVIN LAMAR BLAKE,
Plaintiff,
v. Case No. 3:23-cv-399-BJD-MCR
E.S. YOUNG, et al.,
Defendants.
_______________________________
ORDER
I. Status
Plaintiff, Kevin Lamar Blake, a prisoner of the Florida Department of
Corrections (FDOC), is proceeding under 42 U.S.C. § 1983 on a Second
Amended Complaint (Doc. 19, 19-1) against nine Defendants: (1) Lieutenant
Young; (2) Captain Covey; (3) Officer Shamp; (4) Sergeant Allen; (5) Sergeant
Reagor; (6) Sergeant Fowler; (7) Officer Price; (8) Officer Carlan; and (9)
Sergeant Lingold (formally a “Doe Defendant”). Plaintiff asserts Defendants
committed a series of constitutional violations by using excessive force and
failing to intervene during a cell extraction and decontamination shower.
Before the Court is a Defendants Young, Covey, Shamp, Allen, Reagor,
Fowler, Price, and Carlan’s Motion for Summary Judgment (Doc. 57), with
exhibits (Doc. 57-1 through 57-10). Plaintiff responded (Doc. 69), with exhibits
(Doc. 69-1). Defendants replied (Doc. 70). In accordance with the procedure set
for in Rule 56(f)(1), and in light of Defendant Lingold’s adoption of the Motion
for Summary Judgment (Doc. 80) and Plaintiff’s Response thereto (Doc. 81),
the Court will assess the merits of Lingold’s entitlement to summary judgment
and dismiss as moot his Motion to Dismiss (Doc. 62). See Order (Doc. 79).
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
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
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. Motion & Evidence
In their Motion, Defendants argue the following: (1) Plaintiff cannot
prove his excessive force or failure to intervene claims; (2) Plaintiff cannot
recover compensatory damages because he fails to allege more than de minimis
injuries; (3) they are entitled to qualified immunity; and (4) Plaintiff cannot
recover punitive damages. See generally Doc. 57. As evidence, they provide
video footage filed under seal (Docs. 57-1, 58), a disciplinary report (Doc. 57-2);
medical records (Docs. 57-3, 57-4, 57-5), use-of-force reports (Doc. 57-6),
Plaintiff’s deposition transcript (Doc. 57-7), and declarations from Defendants
Covey and Carlan (Docs. 57-9, 57-10). With his Response, Plaintiff relies on the
same evidence (Docs. 69, 69-1).
The allegations in Plaintiff’s Second Amended Complaint are
summarized in the Court’s Order on Defendants’ Motion to Dismiss and
Supplemental Motion to Dismiss. See Doc. 35 at 3-4. At the outset, however,
the Court finds that, to the extent Plaintiff intended to raise excessive force
and failure to intervene claims against Defendants Young and Price based on
their involvement in the use of chemical agents, such claims are deemed
abandoned. In Plaintiff’s sworn deposition, which the Court summarizes later
in this Order, he expressly testified he was not complaining about “the
spraying” because he was admittedly noncompliant with officers’ orders, such
that their use of chemical agents was not “wrong.” Doc. 57-7 at 44. Further,
Plaintiff testified that “the only reason for this case” is because Defendants
“physically abused [him] repeatedly” during the cell extraction and
decontamination shower, not because of the use of chemical agents and a cell
extraction team (CET). Id. at 62-63. Plaintiff’s sworn testimony makes it
abundantly clear that, in this action, he seeks redress only as it relates to
Defendants’ alleged use of excessive force or failure to intervene during the cell
extraction and decontamination shower. Moreover, in Plaintiff’s Response, he
focuses exclusively on the alleged use of excessive force during the cell
extraction and decontamination shower. See generally Doc. 69. Regardless, as
discussed below, given the consistent and uncontradicted evidence that
Plaintiff was creating a disturbance and refusing to comply with several lawful
orders, the use of chemical agents and a CET were reasonable efforts taken to
maintain or restore discipline. See Thomas v. Bryant, 614 F.3d 1288, 1310
(11th Cir. 2010) (“[I]t is well-established that the use of chemical agents on
recalcitrant prisoners is not per se unconstitutional[.]” (citations omitted)); 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) (“Pepper
spray is an accepted non-lethal means of controlling unruly inmates.”),
overruled on other grounds as recognized in Randall v. Scott, 610 F.3d 701,
709-10 (11th Cir. 2010).
Defendants’ version of events is consistent, as relayed through their use-
of-force reports and declarations. According to those reports, on November 14,
2022, at approximately 4:00 p.m., Plaintiff was creating a disturbance in the
E-Wing by yelling out of his cell and refusing to relinquish the handcuffing
aperture. Doc. 57-6 at 11-12. After Plaintiff refused several orders to cease
creating such disturbance, and following unsuccessful crisis intervention
techniques (CITs), Lieutenant Daniel Philbert administered two applications
of OC chemical agents and one application of CS chemical agents through the
chain-breached cell door and handcuffing aperture.1 Id. at 11-12, 18, 20.
Plaintiff blocked the chemical agents using his state-issued blanket. Id. at 11-
12, 20.
After each application of chemical agents, Plaintiff continued to obstruct
the handcuffing aperture and refused to submit to restraint procedures for a
decontamination shower. Id. at 24-26. Additional CITs were conducted by
medical staff, but Plaintiff continued to refuse all orders. Id. As such, the use
of a CET was authorized to bring Plaintiff into compliance. Id.
At approximately 5:03 p.m., the CET formed outside of Plaintiff’s cell,
which included Defendants Shamp, Fowler, Reagor, Allen, and Lingold. Id. at
13-18. According to their use-of-force reports, they entered Plaintiff’s cell with
Defendant Shamp leading the way with his protective shield. Id. at 13-17.
Shamp attempted to pin Plaintiff against the back wall of the cell while the
other CET Defendants attempted to restrain Plaintiff, but Plaintiff became
physically resistant and combative. Id. Plaintiff was then forced onto the bunk,
1 OC chemical agent is “the primary chemical agent to be utilized for cell
extractions and other in-cell uses” and is defined as “[a]n inflammatory agent that
causes tearing and involuntary closing of the eyes, nasal discharge, sneezing,
disorientation, and the sensation of respiratory distress[.]” Fla. Admin. Code r. 33-
602.210(1)(r). CS chemical agent is “[a]n irritant agent that causes a burning
sensation and tearing of the eyes, nasal discharge, and skin and upper respiratory
irritation” and may be used during cell extractions if OC chemical agents prove
ineffective in obtaining compliance. Fla. Admin. Code r. 33-602.210(1)(e), (5)(a)3.a.
but Plaintiff acquired a grasp of the bunk with both hands, preventing the CET
from placing him in a prone position and applying restraints. Id. Thus,
Defendant Reagor utilized “several palm heel and hammer fist strikes to
[Plaintiff’s] outer forearms” to get Plaintiff to release his grasp of the bunk. Id.
When Plaintiff released his grasp, the CET forced him to the ground in a prone
position; while doing so, Plaintiff’s head “struck the writing desk and then the
floor.”2 Id. at 13.
Once the CET gained control of Plaintiff on the floor, Defendant Shamp
placed his hands on Plaintiff’s back and used his body weight to keep Plaintiff
pinned down, Defendant Fowler forced Plaintiff’s left arm behind his back,
Defendant Reagor applied hand restraints, Defendant Allen acquired a grasp
of Plaintiff’s legs, and Defendant Lingold applied leg restraints. Id. at 13-17.
Once all restraints were applied, all force ceased. Id. Plaintiff was assisted to
his feet by Defendants Reagor and Shamp who then escorted Plaintiff to a
decontamination shower. Id. Shamp and Reagor maintained a grasp of
Plaintiff’s arms while he received a decontamination shower. Id. Following the
shower, Plaintiff was escorted to medical for a post use-of-force examination.
2 The CET Defendants’ use-of-force reports differ as to which side of Plaintiff’s
head struck the writing desk and floor upon forcing him to the ground. Defendant
Shamp reported it was the left side of Plaintiff’s head while the other four CET
Defendants reported it was the right side. Doc. 57-6 at 13-17. Medical records indicate
Plaintiff had lacerations on both sides of his face around his eyes. Doc. 57-3 at 2-4.
Id. Based on these events, Defendant Young issued a disciplinary report
against Plaintiff (Log # 205-222188) for disobeying a verbal or written order.
Doc. 57-2 at 1-10.
Defendants Covey and Carlan aver in their declarations that they did
not witness any excessive use of force by any officer during the cell extraction.
Docs. 57-9, 57-10. Specifically, Covey states he observed Plaintiff take “an
offensive position” against the CET upon their entry into the cell but that from
his vantage point (just outside the cell door), he “could not see [Plaintiff’s]
hands to determine whether he was complying or not.” Doc. 57-9 at 1-2. Covey
asserts he would have intervened had he seen “anything concerning or
unjustified.” Id. As for Carlan, he states he “recall[ed]” Plaintiff fighting the
CET once they entered the cell. Doc. 57-10 at 1-2.
In his sworn deposition, Plaintiff testified that on the day of the incident,
he was placed on property restriction, and Defendant Price was one of the
officers who began taking his property. Doc. 57-7 at 17. While in his cell,
Plaintiff “held the flap” open to get the dorm sergeant or lieutenant to come to
his cell and provide an explanation for why he was being placed on property
restriction. Id. at 25. Plaintiff admitted he was disobeying officers’ orders to
remove his arm from the flap, which led to the use of chemical agents. Id. 25-
28.
Plaintiff testified that after the use of chemical agents, a five-man CET
was formed, and they “came in and beat [him] up.” Id. at 36-37. He explained
as follows:
They came in. I was back – they backed me up against
the wall. Well, they couldn’t really back me up against
the wall because it’s a desk – it’s a desk, sit at the back
window, and it’s like a little bar in the cell where you
put your towel and your rag and your toilet paper roll,
okay. Right there’s the corner. They backed me up into
the corner with the shield, and as they moved the
shield to the side, they kind of, like, grabbed me and
shoved me onto the bunk. When I landed on the bunk,
I was actually on top of the shield, and as I landed on
top of the shield, I was struck several times in my face,
all over my body, all over my head.
Afterwards, they kept telling me to stop resisting. I
kept screaming to them, I’m not resisting – I’m not
resisting. Then they told me, “Put your hands behind
your back.” I told them – I say, “I – I’m trying to put
my hands behind my back, y’all aren’t letting me put
my hands behind my back.” That’s when they rolled
me from the – off the – off the shield onto the – onto
the ground. …. Sergeant Fowler was on my right side
and Sergeant Shamp was on my left side. Sergeant –
while I was screaming for them to stop hitting me, for
– that I was trying to put my hands behind my back
and that I wasn’t resisting, while I was screaming this,
Sergeant Shamp started choking me, and Sergeant
Fowler grabbed me by my head and started smashing
my face into the ground until my – until my left eye
split open. And then, then that’s when I heard – heard
Young telling them, stop, stop or get him out – get him
up – get him up.
Id. at 39-41.
Plaintiff testified that during the decontamination shower, Defendants
Shamp and Reagor continued to beat him, while Defendant Lingold sprayed
water “directly in [his] mouth,” causing a drowning sensation and an inability
to breathe. Id. at 41-42. Specifically, Plaintiff stated Shamp choked him and
Reagor “smash[ed] [his] head into the wall[.]” Id. at 41-42. Plaintiff testified
Defendant Young stood by and allowed the officers to do so. Id. at 42. When
Young announced that Plaintiff had another minute to shower and asked if he
wanted to continue, Plaintiff declined because “the whole time [he] was in the
decontamination shower, they continued to choke [him] and smash [his] face
into the wall.” Id. Plaintiff testified that, after the incident, he began
experiencing migraines and blurred vision, and stated he has a scar “in his left
eyelid.” Id. at 49-50. Although, he acknowledged his vision is “good” and that
he does not require eyeglasses. Id. at 51.
Defendants submitted four videos in support of their Motion: two hand-
held camera videos and two fixed-wing videos. Docs. 57-1, 58.3 The hand-held
camera video that initiates the recording process shows only what occurred
3 The two videos from the fixed-wing cameras, both forty-five minutes in
length, record the incident from a distance and do not capture the inside of Plaintiff’s
cell or decontamination shower area. As such, the Court will summarize only the
video footage recorded by the hand-held camera. The Court will cite to the two hand-
held video exhibits separately as “HH-1” and “HH-2.” For clarity, the hand-held video
exhibits are labeled “Handheld video 1” (which records the cell extraction and
decontamination shower) and “Handheld video 2” (which records the events
preceding the cell extraction and decontamination shower). Doc. 57-1.
before the CET entered the cell. See generally HH-2. In the next hand-held
camera video, the five-man CET introduces themselves and states their
responsibilities as follows: Defendant Shamp, responsible for the protective
shield; Defendants Fowler and Reagor, responsible for securing Plaintiff’s
upper extremities and applying hand restraints; and Defendants Allen and
Lingold, responsible for securing Plaintiff’s lower extremities and applying leg
irons. HH-1 at 0:01:38-0:02:36. The CET assembles in front of Plaintiff’s cell
while Defendants Young and Covey stand by the cell door; Young announces
that Plaintiff is now naked inside his cell. Id. at 0:02:38-0:02:50. Young gives
Plaintiff a final order to submit to restraint procedures for a decontamination
shower, but Plaintiff refuses to comply. Id. at 0:02:56-0:03:25.
Before the CET enters the cell, Plaintiff is seen through the window
standing and facing the cell door. Id. at 0:03:26-0:03:31. Defendant Young
opens the cell door, the CET enters, and Plaintiff moves backward as
Defendant Shamp moves forward with his protective shield. Id. at 0:03:32-
0:03:37. A physical struggle between Plaintiff and the CET occurs. Id. at
0:03:38-0:03:41. What can be seen is that Plaintiff and all five CET Defendants
initially move toward the back right side of the cell, Defendant Young stands
on the bunk on the left side of the cell, where he observes the events, and
Defendant Covey stands outside the cell, also observing. Id.
The struggle moves to the left side of the cell, where the CET attempts
to place Plaintiff in a prone position on top of the bunk, but Plaintiff places his
hands down on the bunk while the team members continue to struggle with
him. Id. at 0:03:42-0:03:57. During these fifteen seconds, commands are given
to “stop resisting” and “get on the ground,” and Plaintiff yells, “I’m trying to!”
Id. Defendant Reagor’s right shoulder area begins making punching
movements, and a command is given to “let go and put your hands behind your
back.” Id. at 0:03:58-0:04:07.
After approximately twenty-five seconds of the CET struggling with
Plaintiff on the bunk, the struggle moves to the ground, and Defendant Young
yells, “get him on his stomach.” Id. at 0:04:08-0:04:12. At this point, because
the events are occurring in such a narrow cell and there are several officers
present, it is difficult to see the specific, individual movements or actions of
each officer or Plaintiff. While the CET and Plaintiff continue to struggle on
the ground, the protective shield is removed from the cell, and Plaintiff
repeatedly yells, “stop hitting me”; Defendant Young remains standing on the
bunk, continuing to observe and provide direction; and Defendant Covey
remains at the cell door. Id. at 0:04:13-0:04:52. Defendant Young directs the
CET to “get his hands behind his back,” “grab his hands,” and “get the
handcuffs on him.” Id. at 0:04:53-0:05:07. Defendant Young then yells, “get him
up.” Id.
Young exits the cell, the CET bring Plaintiff to his feet, and Covey yells
out to someone off camera to bring a blanket, which is subsequently wrapped
around Plaintiff, who was naked during the cell extraction. Id. at 0:05:13-
0:07:19. The CET then escorts Plaintiff out of his cell, and Defendants Shamp
and Reagor begin walking him to the decontamination shower; Plaintiff is in
hand and leg restraints, he is awake, and his gait is normal. Id. at 0:07:20-
0:10:40. During this walk, the hand-held camera captures Plaintiff’s face,
which is bloody on the left side and swollen above his left eye, and Plaintiff
announces he was “physically abused” during the cell extraction and hit
several times while not resisting; he also names the officers involved. Id. In all,
approximately two minutes elapsed from the time the CET entered Plaintiff’s
cell to when Plaintiff is secured and standing upright in his cell surrounded by
the officers. Id. at 0:03:32-0:05:20.
When they arrive at the shower, Defendants Shamp and Reagor aide
Plaintiff into a shower stall with no door and position him (facing forward)
behind a privacy wall, out of the camera’s view; Shamp and Reagor also step
into the shower stall, maintaining their grasp of Plaintiff’s arms. Id. at 0:10:41-
0:10:48. Defendant Lingold positions himself behind Plaintiff, Shamp, and
Reagor and begins hosing Plaintiff. Id. at 0:10:49-0:11:12. During the
decontamination shower, Plaintiff repeatedly yells, “I can’t breathe,” along
with other indiscernible comments; Defendant Young stands by the shower
stall and observes; and Defendants Shamp and Reagor, who are partially in
the camera’s view, remain calm and still throughout the entirety of the shower.
Id. at 0:11:13-0:14:20.
Following the decontamination shower, officers assist Plaintiff with
putting on a pair of boxers; the hand-held camera captures an
anterior/posterior view of Plaintiff’s body, which shows the same facial injuries;
a spit shield is placed on Plaintiff; and then Shamp, Reagor, and a third officer
escort Plaintiff to medical for a post use-of-force exam. Id. at 0:14:25-0:20:21.
Plaintiff’s post use-of-force exam lasts approximately twelve minutes, after
which he is escorted to a nearby holding cell where his leg and hand restraints
are removed without incident. Id. at 0:20:38-0:33:32. The hand-held camera
recording of the entire incident began at 4:08 p.m. and concluded at 5:38 p.m.
In her declaration, Kellie Caswell, a legal nurse consultant for the
FDOC, provides a summary of Plaintiff’s condition and injuries as reported
during the post use-of-force exam. Doc. 57-3 at 2-4. Plaintiff was ambulatory,
alert, oriented, and responsive; his respirations were even and unlabored, and
he was able to walk without difficulty. Id. Plaintiff refused to open his eyes for
further assessment. Id. His injuries included a “superficial abrasion to the
right eyebrow approximately 0.25 cm in length” and a “laceration above his left
eye approximately 3.5 cm x 0.5 cm x 0.5 cm.” Id. Plaintiff also had bruising,
redness, and swelling to both his eyes. Id. He denied any other injuries or
complaints. Id. His wounds were cleansed with saline and gauze was applied
to his left eye injury. Id. Plaintiff subsequently received sutures on his left
eyebrow area, and Dermabond was used for the other eye laceration. Id.
In the days following the November 14, 2022 incident, Plaintiff
submitted sick calls complaining his face and eyes were still swollen; he had
bruises on his arms and throat; his neck and jaw were sore; he was
experiencing “dizzy spells”; his left eye was “throbbing and irritating him,”
causing migraines; and his right big toe was in pain. Id. During these
respective sick call visits, it was documented that Plaintiff was able to open
and close his mouth without difficulty; he had clear speech; his gait was steady;
he had normal range of motion in his neck; he denied experiencing dizziness
and reported that his headaches come and go; he denied vision problems; he
had “slight redness to his bilateral sclera”; the pain in his right big toe did not
radiate, there was no swelling, and he was able to bear weight. Id.
Caswell’s declaration also provides that Plaintiff complained of “poor
sleep” on several occasions prior to the date of the incident at issue, including
once in 2021 and four times in 2022.4 Id. Thus, Caswell asserts “there is no
documentation that [Plaintiff] had a scar around his left eye, scars on his arms
4 Plaintiff’s alleged injuries include suffering from sleep deprivation due to
paranoia. Doc. 19-1 at 5.
and shoulders[,] and loss of sleep due to the UOF [use of force] incident.” Id. at
4.
IV. Analysis
The remaining claims before the Court include: (1) excessive force during
the cell extraction against Defendants Shamp, Fowler, Reagor, Allen, and
Lingold, and the failure to intervene therein against Defendants Young, Covey,
and Carlan; and (2) excessive force during the decontamination shower against
Defendants Shamp, Reagor, and Lingold, and the failure to intervene therein
against Defendant Young. Defendants’ primary arguments in support of
summary judgment is that Plaintiff cannot prove his excessive force or failure
to intervene claims and that they are entitled to qualified immunity. See
generally Doc. 57.
“In order to receive qualified immunity, [a] public official must first prove
that he was acting within the scope of his discretionary authority when the
allegedly wrongful acts occurred.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th
Cir. 2002) (quotation omitted). There is no dispute that Defendants were acting
within their discretionary duties at the time of the incident. Where, as here, it
is undisputed that Defendants were acting within the scope of their
discretionary authority, the burden shifts to Plaintiff to prove that Defendants
“(1) violated a constitutional right, and (2) this right was clearly established at
the time of the alleged violation.” Holloman ex rel. Holloman v. Harland, 370
F.3d 1252, 1264 (11th Cir. 2004). Plaintiff must satisfy both prongs to survive
a qualified-immunity defense. Hinson v. Bias, 927 F.3d 1103, 1116 (11th Cir.
2019).
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
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
(internal quotations omitted). Whether an officer used more force than
necessary to quell a disturbance or regain control of a prisoner requires courts
to consider various factors, including 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. Id.; see Whitley, 475 U.S. at 321; 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
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.
A. Cell Extraction
Plaintiff alleges that during the cell extraction, Defendants Shamp,
Fowler, Reagor, Allen, and Lingold used excessive force by repeatedly
punching him, smashing his face onto the floor, and choking him, all while he
was not resisting. Docs. 19 at 3-4, Doc. 19-1 at 3. More specifically, Plaintiff
asserts all five CET Defendants punched him all over his body when they
forced him onto the bunk; Defendant Fowler smashed his face onto the floor,
causing his left eye to split open; and Defendant Shamp choked him “into
silence” while on the cell floor. Id.; see also Doc. 57-7 at 39-41. Plaintiff also
alleges Defendants Young, Covey, and Carlan failed to intervene. Docs. 19 at
3-4, Doc. 19-1 at 3. Defendants argue the Whitley factors demonstrate that the
force used during the cell extraction was reasonable under the circumstances,
that the video evidence contradicts Plaintiff’s version of events, that they are
entitled to qualified immunity, and that Plaintiff’s injuries were only de
minimis. Doc. 57 at 9-22.
Initially, it is undisputed that a forced cell extraction was necessary
under the circumstances, as Plaintiff admits he was refusing to comply with
officers’ orders to submit to restraint procedures for a decontamination shower.
Doc. 57-7 at 44-47. Instead, Plaintiff complains that once inside the cell, the
CET Defendants engaged in discrete actions that constitute excessive force,
because he was not resisting their efforts to subdue and restrain him.
The hand-held video exhibit labeled “Handheld video 1” best shows the
relevant events and is largely consistent with Defendants’ use-of-force reports.
See Doc. 57-1, 58; HH-1 at 0:03:26-0:05:07; see also Doc. 57-6 at 13-17. First,
the video evidence and use-of-force reports contradict Plaintiff’s assertion that
he was not resisting the CET’s efforts to restrain him. As soon as the CET
entered his cell, Plaintiff moved backward, away from Defendant Shamp and
his protective shield. HH-1 at 0:03:32-0:03:37. The use-of-force reports indicate
Plaintiff became combative when they initially attempted to acquire a grasp of
him on the back wall, which led to the struggle shifting to the left side of the
cell. Doc. 57-6 at 13-17. At that point, the CET attempted to restrain Plaintiff
by placing him in a prone position on top of the bunk, but Plaintiff placed his
hands on the bunk, thwarting their efforts. HH-1 at 0:03:42-0:03:57. Likewise,
the use-of-force reports indicate Plaintiff obtained a grasp of the bunk with
both hands. Doc. 57-6 at 13-17.
Approximately twenty-five seconds passed while the CET struggled with
Plaintiff on the bunk, during which Defendant Reagor’s right shoulder area
made movements consistent with punching, and commands were given to “let
go and put your hands behind your back.” HH-1 at 0:03:42-0:04:07. This is
consistent with the use-of-force reports, which indicate Reagor used “palm heel
and hammer fist strikes” on Plaintiff’s forearms to get him to release his grasp
of the bunk. Doc. 57-6 at 13-17. The video evidence contradicts Plaintiff’s
allegation that all five CET Defendants were punching him all over his body
while on top of the bunk. Thus, his allegations are not to be credited. See Scott
v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties tell two different
stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the
facts for purposes of ruling on a motion for summary judgment.”).
Next, Plaintiff alleges Defendant Fowler smashed his face onto the floor
and Defendant Shamp choked him. Based on Plaintiff’s deposition testimony,
these actions occurred once the CET forced him onto the ground, during which
time Plaintiff claims he was not resisting. Doc. 57-7 at 39-41. But, as previously
noted, the video evidence and use-of-force reports contradict Plaintiff’s
assertion that he was not resisting the CET’s efforts to subdue him. Although
the hand-held camera video did not capture the specific, individual movements
of the CET Defendants and Plaintiff once the struggle moved to ground (HH-1
at 0:04:08-0:05:07), it captured the scenario sufficiently to give an objective
view of what happened. See Brown v. Smith, 813 F.2d 1187, 1189-90 (11th Cir.
1987) (“Although [the Court] cannot pinpoint with precision the amount of
force used by [Defendants], the fact that there was no more than minimal
injury, that some amount of force was justified under the circumstances, and
that the force was used for a legitimate security purpose persuades [the Court]
that the evidence in this case raises only a ‘mere dispute over the
reasonableness of the particular use of force’ and could not support ‘a reliable
inference of wantonness in the infliction of pain.’” (quoting Whitley, 475 U.S.
at 322)).
Regardless of the inability to clearly discern what was happening inside
Plaintiff’s cell at the relevant time, to the extent Plaintiff’s face was smashed
against the floor (or had areas of his body pulled or pressed upon) such actions
and resulting injuries are to be expected when a CET is forced to subdue and
restrain an inmate who is being combative and physically resistant. The use of
a cell extraction team necessarily involves force. See Thomas, 614 F.3d at 1301
n.13 (“In a cell extraction, a team of five correctional officers enter an inmate’s
cell and forcibly restrain and remove him.” (emphasis added)). Lacerations to
the face, bruises, and the pushing, pulling, or pressing upon an inmate’s body
parts are “entirely consistent” with a reactionary use of force involving a cell
extraction team. See Charles, 18 F.4th at 700 (noting that “small scrapes,
bumps, and bruises . . . are entirely consistent with a routine takedown”).
Moreover, applying force to an inmate’s head and/or face when attempting to
subdue him on the floor of a cell is a common tactic employed by a CET to
successfully restrain an inmate whose behavior necessitated the need for such
force. To the extent Plaintiff’s face was pressed or smashed onto to the floor
while the CET continued its efforts to overcome Plaintiff’s resistance and
restrain him does not mean that Defendant Fowler applied force maliciously
and sadistically for the very purpose of causing harm. See Whitley, 475 U.S. at
320-21.
Additionally, the evidence contradicts Plaintiff’s allegation that
Defendant Shamp choked him “into silence.” As seen on the video, while the
CET struggled with Plaintiff on the ground (when he claims to have been
choked), Plaintiff can be heard yelling and screaming. HH-1 at 0:04:53-0:05:07.
Before the CET exited Plaintiff’s cell (after he claims to have been choked into
silence), Plaintiff was brought to his feet and was able to stand on his own
accord. When he was finally removed from his cell and escorted to the
decontamination shower, Plaintiff’s gait was normal, he was awake and alert,
and he began announcing that he was “physically abused” by the CET, even
listing out the names of the parties involved. Id. at 0:07:22-0:10:10. Moreover,
Defendant Shamp’s use-of-force report indicates that while Plaintiff was on the
cell floor, Shamp placed his hands on Plaintiff’s back and used his body weight
to keep Plaintiff pinned down. Doc. 57-6 at 13.
Plaintiff’s medical records also belie that he was choked. During his post
use-of-force exam, Plaintiff was alert, oriented, responsive, and he expressed
no complaints other than those documented, which included a superficial
abrasion to his right eyebrow approximately 0.25cm in length; a laceration
above his left eye approximately 3.5cm x 0.5cm x 0.5cm; and bruising, redness,
and swelling to both his eyes. Doc. 57-3 at 2-4; 57-5 at 2, 9. He denied any other
injuries or complaints. Id. Plaintiff’s vital signs were normal, and his
respirations were even and unlabored. Doc. 57-5 at 2, 9. There is no notation
that Plaintiff reported being choked to the point of “silence” or that he had
marks or redness around his neck.5 See id.
The Court finds that the Whitley factors balance in favor of the CET
Defendants with respect to their efforts to subdue and restrain Plaintiff during
the cell extraction. First, as Plaintiff himself concedes, a use of force was
necessary, as he was refusing to comply with orders to submit to restraint
procedures following the use of chemical agents. Second, the extent of the force
used directly related to Plaintiff’s physical resistance. When the CET entered
the cell, a struggle ensued, causing them to use additional physical force to
restrain Plaintiff. Defendant Reagor’s use of “palm heel and hammer fist
strikes” to Plaintiff’s forearms was designed to get him to release his grasp of
the bunk. Defendant Fowler’s alleged smashing of Plaintiff’s face onto the floor
amounts to a common tactic used to subdue a combative and resistant inmate
during an inherently physical cell extraction. And, as to Defendant Shamp’s
alleged choking, the evidence contradicts that such conduct occurred and
instead indicates Shamp was applying his hands and body weight to Plaintiff’s
back in an effort to keep Plaintiff pinned down. Third, in light of Plaintiff’s
continuous refusal to obey orders and submit to restraints, the threat of harm
5 Although Plaintiff complained of having bruises on his throat and a sore neck
on November 20, 2022 (six days following the incident), his medical records reflect he
had normal range of motion in his neck and there was no documentation of any
bruises. Docs. 57-3 at 2-4; 57-5 at 36, 52, 70-71.
Plaintiff posed to others, particularly the CET, was evident. Fourth,
Defendants made many attempts and used a series of techniques to gain
Plaintiff’s compliance before assembling the CET. Finally, Plaintiff did not
suffer extensive injuries, as there was “no documentation that [Plaintiff] had
a scar around his left eye, scars on his arms and shoulders[,] and loss of sleep
due to the UOF [use of force] incident.” Doc. 57-3 at 2-4.
Thus, focusing on “the core judicial inquiry” of “whether force was
applied in a good-faith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm,” the record shows Defendants did not use force
maliciously and sadistically but instead to maintain and restore discipline.
Hudson v. McMillian, 503 U.S. 1, 7 (1992). On summary judgment, a plaintiff
may not rely on the unsubstantiated allegations in his complaint. See Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (“Rule 56(e) permits a proper
summary judgment motion to be opposed by any of the kinds of evidentiary
materials listed in Rule 56(c), except the mere pleadings themselves.”). “[M]ere
conclusions and unsupported factual allegations are legally insufficient to
defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326
(11th Cir. 2005). Based on the evidence presented by Defendants and Plaintiff’s
failure to provide any evidence other than his own uncorroborated claims, no
reasonable jury could find for Plaintiff with respect to his allegations of
excessive force during the cell extraction. 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)).
In his Response, Plaintiff argues a conflict exists in Defendants’ evidence
insofar as Defendants Covey and Carlan averred that Plaintiff took an
“offensive position” prior to the CET entering the cell, but none of the other
Defendants stated as much in their respective use-of-force reports. Doc. 69 at
4; see also Docs. 57-9, 57-10. While true, this does not create a genuine dispute
of material fact, especially in light of the video evidence capturing the initial
entry and struggle between the CET and Plaintiff. As noted, prior to the CET
entering the cell, Plaintiff was standing and facing forward, and when
Defendant Shamp moved forward with his protective shield, Plaintiff moved
backward, which led to the struggle inside the cell. HH-1 at 0:03:26-0:03:41.
Accordingly, Defendants have demonstrated the absence of a genuine
issue of material fact and, as such, summary judgment is warranted for the
CET Defendants on Plaintiff’s excessive force claims relating to the cell
extraction. Likewise, since the Court finds that Defendants Shamp, Fowler,
Reagor, Allen, and Lingold’s use of force during the cell extraction was not
unconstitutional, Plaintiff’s failure to intervene claims against Defendants
Young, Covey, and Carlan necessarily fail. See, e.g., Mobley v. Palm Beach Cty.
Sheriff Dep’t, 783 F.3d 1347, 1357 (11th Cir. 2015) (“[A] police officer has no
duty to intervene in another officer’s use of force when that use of force is not
excessive.”). Thus, Defendants’ Motion will be granted as to these claims.
B. Decontamination Shower
Plaintiff alleges that during the decontamination shower, Defendant
Shamp smashed his head into the wall, Defendant Fowler sprayed the water
hose into his mouth, and an unspecified Defendant choked him. Doc. 19-1 at 3-
4. But, as previously noted, in his sworn deposition, Plaintiff explained that it
was Shamp who choked him and Defendant Reagor who smashed his head into
the wall, while Defendant Lingold sprayed water into his mouth. Doc. 57-7 at
41-42. This discrepancy is immaterial because the video evidence showing
Plaintiff’s decontamination shower clearly contradicts his version of events,
such that no reasonable jury could find that Plaintiff suffered a violation of is
Eighth Amendment rights. See Pourmoghani-Esfahani v. Gee, 625 F.3d 1313,
1315 (11th Cir. 2010); see also Morton v. Kirkwood, 707 F.3d 1276, 1284 (11th
Cir. 2013) (recognizing that “where an accurate video recording completely and
clearly contradicts a party’s testimony, that testimony becomes incredible”).
The video evidence shows Plaintiff was guided into the shower stall by
Shamp and Reagor, both of whom stood on either side of Plaintiff and
maintained a grasp of his arms. HH-1 at 0:10:40-0:14:30. Plaintiff was facing
forward so that his face was situated away from the water hose. Id. While the
video does not show Plaintiff’s body during the shower or the entire bodies of
Shamp and Reagor, it captures Shamp’s and Reagor’s upper bodies and
shoulder areas as they stood in the stall with Plaintiff during the entire
shower. Once again, the video documents the scenario sufficiently to give an
objective view of what happened. Neither Shamp nor Reagor made any
physical movements during the shower consistent with smashing Plaintiff’s
head into a wall or choking him. Id. To the contrary, Shamp and Reagor
remained still and calm throughout the entire shower, which lasted just short
of three minutes. Id. The camera is angled in such a way where, if Shamp and
Reagor had engaged in such conduct, it would have been captured by the
camera.
Additionally, the video does not support that Lingold sprayed the water
hose down Plaintiff’s mouth. As noted, Plaintiff was facing forward, such that
his back was facing Lingold during the shower. Lingold calmly hosed down
Plaintiff; Lingold remained in the camera’s view the entire time, and he made
no movements consistent with adjusting the water hose around Plaintiff’s head
in order to spray water in Plaintiff’s mouth. Id. While Plaintiff yelled that he
could not breathe at times during the shower, it is extremely plausible that
such sensation stemmed from the fact that he had recently been sprayed three
times with chemical agents, which are known to cause respiratory distress.
Once the water was turned off, all three officers stood calmly and still by
Plaintiff until Lingold was provided a key to remove Plaintiff’s leg restraints,
allowing Plaintiff to put on a pair of boxers. Again, during this time, neither
officer made any physical movements consistent with smashing Plaintiff’s
head into a wall, choking him, or spraying water into his face or mouth.
The video evidence conclusively shows that Defendants’ conduct during
the decontamination shower was not “sadistically and maliciously applied for
the very purpose of causing harm.” Sconiers, 946 F.3d at 1266. Instead, the
video evidence shows Shamp, Reagor, and Lingold conducting a routine forced
decontamination shower. Consequently, since the Court finds no constitutional
violation occurred during the decontamination shower, Plaintiff’s claim that
Defendant Young failed to intervene necessarily fails. See, e.g., Mobley, 783
F.3d at 1357. As such, summary judgment will be granted for Defendants as
to Plaintiff’s excessive force and failure to intervene claims relating to the
decontamination shower.
Therefore, it is now
ORDERED AND ADJUDGED:
1. Defendants Young, Covey, Shamp, Allen, Reagor, Fowler, Price,
and Carlan’s Motion for Summary Judgment (Doc. 57), which
Defendant Lingold adopts, is GRANTED.
2. Defendant Lingold’s Motion to Dismiss (Doc. 62) is DENIED as
moot.
3. The Clerk is directed to enter judgment in favor of all Defendants
and against Plaintiff; terminate any pending motions; and close
the case.
DONE AND ORDERED at Jacksonville, Florida, this 17th day of
August, 2026.
BRIAW/J. DAVIS
United States District Judge
OrlP-2
C: Kevin Lamar Blake, # X83762
Counsel of record
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