LESTER W. HILL, Plaintiff, v. JEFFREY L. KIRKLAND, et al., Defendants.
Case No. 3:16-cv-924-J-32PDB
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION
This is an excessive force case with conflicting testimony. But there is video that obviates the evidentiary conflict such that the Court is authorized to grant summary judgment for Defendants.
I. Status
Plaintiff, an inmate of the Florida penal system, initiated this case by filing a pro se Civil Rights Complaint (Doc. 1) pursuant to
II. Summary of Parties’ Pertinent Filings
A. Plaintiff‘s Complaint1
On October 25, 2012, around 9:00 a.m., Plaintiff was asleep in his cell on close management segregation at Suwannee Correctional Institution (Suwannee). He awoke to a loud banging and kicking on his cell door by Janet Martin. Plaintiff sat up and asked Martin what was wrong. Martin, who was accompanied by Officer Fogel, advised Plaintiff that it was time for a cell inspection. Plaintiff explained to Martin that he was unaware of any cell inspection because he had just arrived at Suwannee the day before. Martin then became aggressive and asked Plaintiff whether the shirt he was wearing was state-issued or personal. Plaintiff told her it was personal, and Martin ordered him to remove the shirt and give it to her. Plaintiff refused. Mаrtin then ordered Plaintiff to cuff up (submit to hand restraints), and advised him that he was going on “strip” (72-hour property restriction) for destruction of state property and because Martin did not like Plaintiff‘s attitude. Plaintiff told Martin that he had done nothing wrong, and she told Plaintiff she was going to take whatever property Plaintiff had. Martin again ordered Plaintiff to cuff up. Plaintiff repeated that he had done nothing wrong, and refused to submit to hand restraints. Martin asked Plaintiff whether he was refusing, and he confirmed that he was not going to cuff up and that he was protesting her invalid order.
After a brief struggle with the extraction team, Plaintiff was slammed on his back on top of the bunk inside his cеll. Kirkland pounced on Plaintiff and grabbed Plaintiff under his chin with one hand and placed his other hand behind Plaintiff‘s head, and then violently twisted Plaintiff‘s head. Plaintiff was able to knock away one of Kirkland‘s hands, but Kirkland grabbed hold of Plaintiff again and twisted his neck a second time. Plaintiff was fighting for his life and was able to once again break free from Kirkland‘s grip.
Kirkland and Jackson then grabbed Plaintiff and turned him onto his stomach. Jackson jumped on top of Plaintiff‘s back, took Plaintiff‘s left arm and twisted it behind his back, and placed a hand cuff on Plaintiff‘s wrist. He then grabbed Plaintiff‘s right arm and was able to completely secure the handcuffs on Plaintiff.
With Plaintiff lying on his stomach and handcuffs on his wrists, Kirkland crouched down toward Plaintiff‘s head and began to violently and repeatedly punch Plaintiff in the face. Kirkland then attacked Plaintiff‘s left eye, by sticking his finger into and behind Plaintiff‘s eyeball. Kirkland was attempting to dislodge Plaintiff‘s eyeball, but was unable to do so. Kirkland then stuck his thumb in Plaintiff‘s left eye and twisted it back and forth. While Kirkland was doing so, Jackson was punching Plaintiff in the head while sitting on top of
At one point during the beating, Jackson grabbed Plaintiff‘s head and began to pound it into the edge of the steel bunk, and one of the cell extraction team members grabbed hold of Plaintiff‘s left thumb and bent it viciously backwards. The beating stopped when Kirkland and Jackson were exhausted and breathing heavily, at which time Martin ordered them to lift Plaintiff to his feet. Martin witnessed the beating and assisted Defendants by yelling for Plaintiff to “stop resisting” after Plaintiff was already restrained and was being beaten by Defendants.
After Plaintiff was removed from his cell, he received a decontamination shower. A nurse came to examine Plaintiff and documented some of his visible injuries, but Plaintiff refused medical treatment. He was then escorted back to his cell, and all of his property had been removed. He spent the next 72 hours in a cold, chemically-polluted cell without a mattress to sleep on.
As a result of the beating, he suffered trauma to his left eye with pоssible permanent visual impairment, and his left hand was seriously and potentially permanently injured. He also suffered a severe injury to his neck with continued pain and possible permanent injury. He had a concussion, and massive swelling and bruising to the left side of his face and portions of his skull. He had a deep laceration on the inside of his mouth and a laceration on his right forearm that was approximately 4 inches long. Plaintiff also had minor abrasions and lacerations on his face and body.
B. Defendants’ Motion
Defendants move for summary judgment in their favor for the following reasons: (1) the amount of force used was necessary to restore order and was reasonable under the circumstances; (2) Plaintiff is not entitled to compensatory or punitive damages because he did not suffer more than a de minimis physical injury; and (3) Defendants are entitled to qualified immunity.
Martin, who was the Lieutenant present on the date of the incident and who was formerly named as a Defendant, states in pertinent part:
Hill‘s allegations are absolutely untruе. The cell extraction team used only the minimal amount of force required to overcome Hill‘s resistance and regain his compliance to lawful orders.
. . . .
During the morning of October 25, 2012, Hill was causing a disturbance and refusing to comply with my lawful order to submit to hand restraints. After it was confirmed that there were no known conditions or circumstances that would be exacerbated by the use of chemical agents against Hill, the Duty Warden was contacted and he authorized the use of chemical agent Oleoresin Capsicum (OC). Video recording was initiated and I gave Hill a final warning to cease his behavior and submit to hand restraints. Hill continued to refuse to submit to hand restraints. During the three applications of OC, Hill actively attempted to grab hold of the OC canister and physically assault staff. During the second application, Hill seized Officer Hector Lopez‘s arm and force was utilized to break Hill‘s grasp. After the final application of chemical agents, Hill continued to refuse to submit to hand restraints.
A forced сell extraction team was assembled, following authorization of the duty warden, in response to Hill‘s continued refusal to submit to hand restraints. After Hill refused a final time to submit to hand restraints, the cell extraction team entered the cell and placed restraints onto Hill under my
supervision. During this time, I only witnessed the minimal amount of force necessary to gain Hill‘s compliance. Prior to the arrival of the extraction team, Hill covered the window of his cell with a t-shirt, preventing myself or other staff members from seeing into his cell. When Hill‘s cell door was rolled open, Hill initiated contact with the non-electric shield carried by Officer Kirkland by aggressively lunging out of his cell. Hill continued to use physical resistance until the officers were able to place wrist and ankle restraints onto him.
Following the cell extraction, Hill was escorted to the shower and instructed to decontaminate with cool water. During this time, Hill made repeated threats to harm officers, stating, “I‘m going to stab your ass” amongst other threats. Hill refused to be examinеd by medical staff.
Ex. C (internal citations and paragraph enumeration omitted).
Defendant Kirkland filed the following Declaration in support of the Motion:
Hill‘s allegations against me are absolutely untrue. I only used the minimum amount of force necessary to gain Hill‘s compliance during the incident.
. . . .
I was the number one member of the cell extraction team for Hill. Upon entering Hill‘s cell, I used the non-electronic shield and then my body weight to pin Hill to the bunk. Upon Hill‘s cell door first opening, Hill lunged directly at me through the door. I utilized force, along with the other members, to overcome Hill‘s resistance. Once Hill came into compliance, I stopped my use of force. At no point did I utilize any type of force in an effort to punish or injure Hill.
I used the minimum force necessary to overcome Hill‘s resistance and regain his compliance with lawful orders.
Ex. D (internal citations and paragraph enumeration omitted).
Defendant Jackson‘s Declaration states as follows:
Hill‘s allegations against me are absolutely untrue. I only used the minimum amount of force necessary to gain Hill‘s compliance during the incident.
. . . .
I was the number three member of the cell extraction team for Hill. Upon entering Hill‘s cell, I gained control of his left arm by grasping it with both my hands. With the help of Sergeant Shawn Baxley, the number two member of the extraction team, I placed restraints on Hill‘s wrists. I maintained [m]y grasp until all restraints were applied and Hill‘s resistance ceased.
I used the minimum force necessary to overcome Hill‘s resistance and regain his compliance with lawful orders.
Ex. E (internal citations and paragraph enumeration omitted).
C. Plaintiff‘s Response
Plaintiff largely reiterates the factual assertions made in his Complaint, and argues that the declarations of Defendants and his declaration are squarely contradictory as to what amount of force was used, when it was used, and why it was used. Plaintiff asserts that he “was beaten as punishment for refusing to submit to hand restraints in order to be placed on Strip . . . and because Plaintiff became combative during the 2nd and 3rd applications of chemical agents.” Doc. 42 at 4. “Plaintiff concedes that in light of him refusing all orders to submit to hand restraints some degree of force may have been lawful, but challenges the assault and beating that occurred after he was down, restrained, and no longer resisting.” Id.
Another inmate, Terrance Barnett, submitted a Declaration, stating that he was waiting to see his mental health counselor and could see Plaintiff‘s cell from his location. Doc. 42-4 at 2. He witnessed Martin counsel with Plaintiff, and Plaintiff‘s refusal to cuff up.
I saw Mr. Hill appear at the very front of the cell door and met the extraction team . . . the correctional officer at the front of the cell extraction team had a large plexiglass riot shield and he hit Mr. Hill with it, knocking Mr. Hill backwards[.] I then saw Mr. Hill lunge forward trying to make it to the door again but was grabbed by “3” extraction team members. I then witnessed Mr. Hill being slammed on top of an empty bunk inside his cell, now that Mr. Hill was down аnd the extraction team officers was on top of him and crowding around him; I lost sight of Mr. Hill[.] I was trying to see what was happening inside the cell but now my view was obstructed . . . . I did see Lt. Martin slip inside the cell approximately 5 minutes, when Mr. Hill was finally taken out of the cell I was “shocked” by what I saw[.] Mr. Hill had to be carried out of the cell because he was half unconscious, his face was seriously damaged, he had blood coming out of his left eye, blood was coming from his nose and mouth . . . I observed that his face was severely deformed from swelling and bruising, he also had lumps or mounds on his skull and head area. . . . Once Mr. Hill was brought out by the team of officers some of them notice that I was looking at Mr. Hill and they told me to turn around or “I would be next“; so I was forced to face the wall[,] but at times look towards Mr. Hill‘s direction and seen the damage that had been done to him. . . . Also while I was observing the scene I notice that Mr. Hill was pointing at c/o Kirkland in particular, I could not hear what he was saying; but I looked towards the extraction huddle of officers and I noticed that Mr. Hill was talking to Officer Kirkland because he was smiling at Mr. Hill; he didn‘t say anything he just continued to smile at Mr. Hill!
Id. at 3-4.
Inmate Mathis’ affidavit addresses what he was told by an Officer Baker the day after Plaintiff‘s cell extraction. Doc. 42-4 at 5. According to inmate Mathis, Officer Baker told him that “they had cell extracted an inmate yesterday and if [the inmates] don‘t want to end up like him [(apparently, Plaintiff)] that [the inmates] had better do every and anything an officer
D. Video Evidence2
Three video disks were filed under seal. The first and second video disks are from the same handheld camera; the third is from a second handheld camera. The following is a summary of what is shown on the videos.
1. First Video
On October 25, 2012, at 10:16 a.m.,3 Martin provided an introductory statement. She explained that Plaintiff was creating a disturbance on the wing by yelling obscenities and refusing to cuff up (submit to hand restraints) for purposes of being placed on property restriction due to his destruction of a state-issued t-shirt. According to Martin, three correctional staff members, including Martin, unsuccessfully attempted to counsel with Plaintiff and obtain his compliance. Martin indicated that she used crisis intervention techniques, but Plaintiff refused to comply. Martin confirmed that Plaintiff had no known medical conditions that would be exacerbated by the use of chemical agents and medical staff stated the use of chemical agents would not endanger his health. She advised that the duty warden authorized the use of chemical agents to bring Plaintiff into compliance if3 The specific times given were announced by the camera operator as the time on the handheld camera.
At 10:18 a.m., Martin approached Plaintiff‘s cell, and Plaintiff was standing at the door. Martin warnеd Plaintiff that if he failed to comply with orders, staff would use chemical agents on him. She asked Plaintiff if he understood, but Plaintiff remained silent. Martin acknowledged that Plaintiff had ceased his disruptive behavior, but he still would not submit to hand restraints. She asked him several times to submit to hand restraints, but Plaintiff remained silent while standing at the cell door. Martin gave Plaintiff an additional warning and walked away from his cell at 10:20 a.m.
The camera operator stayed outside of Plaintiff‘s cell. Plaintiff walked farther into his cell, out of the camera‘s view. A staff member approached Plaintiff‘s cell and chained his cell door to the adjacent cell door. Plaintiff appeared at the cell door, watching whatever was occurring outside of his cell. Shortly after the camera operator announced the time as 10:24 a.m., Plaintiff began wrapping a towel around his head preparing for the use of chemical agents. When Martin re-approached his cell and asked if he was going to submit to hand restraints, Plaintiff remained silent while standing at his cell door. Plaintiff also held “blues”4 in his hand in preparation for the chemical agents. Martin directed Plaintiff to not stick his arm or any body part out of the door. Plaintiff refused to move back from the cell door despite being ordered to do so. A staff member with a shield stood at Plaintiff‘s cell door and blocked the opening, Martin partially opened the door, and another staff member held the canister of chemical agents. When the door partially opened, Plaintiff tried to block the4 Apparently, “blues” refers to state-issued clothing.
Staff walked away from Plaintiff‘s cell, but the camera operator remained. About two minutes later, the staff member who held the shield during the chemical sprays approached Plaintiff‘s cell and asked whether he was going to cuff up, but Plaintiff did not respond. Around 10:32 a.m., Martin approached Plaintiff‘s cell and asked him if he would cuff up, and Plaintiff responded, “cuff up for what?” Plaintiff stood at the cell door preparing to block the spray with clothing, and Martin warned him about sticking his hand out of the door. When the door opened for the second administration of chemical agents, Plaintiff shoved clothing into the opening, but the staff member holding the shield was able to knock the clothing out of the door. Plaintiff violently reached out of the cell door with clothing in his hand, and staff took the clothing. Plaintiff had more clothing in his hand and used it to try to block the chemical spray, and a scuffle ensued with Plaintiff grabbing and holding on to a staff member‘s arm. Repeated punches to Plaintiff‘s forearm were used in an attempt to break Plaintiff‘s grasp. There was a brief tug-of-war with clothing items through the open door. Once the door was closed, the camera operator announced the time as 10:34 a.m. Three bursts of chemical agents were sprayed into Plaintiff‘s cell during this encounter.
Around 10:41 a.m., Martin approached Plaintiff‘s cell and asked if Plaintiff was ready to cuff up. Plaintiff did not answer. Instead, he wraрped a towel around his head. Martin warned him not to stick his arm out of the door, and Plaintiff stated, “I‘m coming out.” Martin, apparently believing that Plaintiff was ready to cuff up and exit his cell, asked him to turn around. Plaintiff, however, clarified, that he was “coming out to get that f*ck boy there.”
At 10:52 a.m., Martin approached the cell and asked if Plaintiff would cuff up. He again stated that he would grab the canister of chemical agents. He wrapped a towel around his head and held other cloth item(s) in his hand and threatened that he was going to “get that mother f*cker this time.” When the door was partially opened, Plaintiff attempted to grab the canister by reaching out of the door with one hand while holding the cloth item up to block the spray with his other hand. He told the sergeant (the staff member holding the shield) that if he got the canister, the sergeant should get out of the way so he could spray the “LT” (Martin) and everyone else. One shot was sprayed into Plaintiff‘s cell, while Plaintiff taunted the staff member who was holding the canister. Plaintiff called him a “mother f*cker” and a “coward,” and told him, “Come up here,” “get your ass up here,” “get your mother f*cking ass up here,” “go ahead come on . . . skinny mother f*cker.” He also threatened to “kick [his] mother f*cking head.” Plaintiff repeatedly stuck his arm out of the dоor in an attempt to grab the canister. Staff was able to take a cloth item(s) from Plaintiff as he tried
The sergeant approached and asked Plaintiff if he would cuff up. Plaintiff exclaimed, “Ain‘t nothing pu**y about me man.” Two other staff members, including Martin, asked Plaintiff to cuff up. Plaintiff walked around his cell and wiped the window off. Martin again approached Plaintiff‘s cell and asked him if he would cuff up to get a shower and be seen by medical. A captain also asked him to come out and get a shower. Plaintiff told the captain, “She‘s trying to take my sh*t for no reason, captain, . . . no I ain‘t cuffing up.” The time was announced as 10:59 a.m.
During the next five minutes, Plaintiff walked around his cell and looked out the window on his cell door at times. At 11:04 a.m., Martin approached Plaintiff‘s cell with a nurse so the nurse could assess Plaintiff and explain to him the importance of taking a decontamination shower after being subjected to chemical agents. The nurse began speaking to Plaintiff at 11:05 a.m. She told him that it is important to take a shower to remove the chemical agents from his skin. Plaintiff walked around his cell, apparently ignoring the nurse. She told him that the longer it stayed on his skin, the more it would affect his eyes, sinuses, and breathing. He told the nurse, “It‘s alright.” The nurse tried to visually assess Plaintiff, but Plaintiff yelled to get away from his door. Martin and the nurse walked away from Plaintiff‘s cell.
Plaintiff continued pacing around his cell and repeatedly looked out the window. After several minutes, Martin re-approached the cell and again asked Plaintiff if he was still
2. Second Video
The second disk is a continuation of the first. Plaintiff was apparently attempting to wipe the chemical agents off of his cell floor, and then he unsuccessfully tried to cover the window on his cell door. At 11:20 a.m., when the sergeant approached his cell, Plaintiff still refused to cuff up and told the sergeant that he was “ready to die today,” and then he stated, “I don‘t give a f*ck, tell them to come on with it.” Plaintiff started yelling to another inmate describing the property he had in his cell. Plaintiff was ordered to get off of the door, but he refused, and told the staff member, “f*ck you . . . kiss my ass f*ck boy,” and he continued to communicate with the other inmate. Plaintiff told the staff member, “You ain‘t no mother f*cking tough guy man.”
Plaintiff was able to completely cover the window on his cell door, which blocked the view into his cell. Another inmate warned Plaintiff that they were coming, and Plaintiff said, “I know.” The cell extraction team approached Plaintiff‘s cell, and Martin gave Plaintiff a final warning but Plaintiff remained silent.
This video provides a cleаr view of Plaintiff charging out of his cell when the door opened for the cell extraction team to enter,5 but the video is not at an angle that provides a clear view of what happened inside of Plaintiff‘s cell after he is pinned to the bunk. After
3. Third Video
The third disk is from a separate handheld camera. The camera operator introduced himself and stated the date and time on the camera (October 25, 2012, 11:27 a.m.). Martin, who was standing with the cell extraction team members, described the events leading up to that point. She stated that Plaintiff had been creating a disturbance on the wing, yelling obscenities onto the wing, and refusing to submit to hand restraints. She stated that he had already received three applications of OC (chemical agents), but was still refusing to submit to hand restraints. She explained that she and another staff member attempted to counsel Plaintiff, but he would not comply. She advised that the duty warden authorized the use of a forced cell extraction team. Each cell extraction team member introduced himself and stated his responsibilities upon entering Plaintiff‘s cell.6 Martin advised the team members that they were not sure whether Plaintiff had a weapon; they had not seen him with one. She instructed the team to only use the minimum amount of force necessary to control and restrain Plaintiff.
The extraction team marched in an organized fashion to Plaintiff‘s cell. By this time, Plaintiff had covered the window to his cell, so the team members could not see into the cell.
The door was opened7 and Plaintiff charged the extraction team members. There was a lot of violent movement in the first several sеconds, and the shield was dropped. It appears that Plaintiff fell to the floor and then continued to attempt to aggressively resist the officers. Plaintiff was repeatedly instructed to “stop resisting.” Plaintiff was subsequently pinned on his bunk.8 About 15 seconds after the door was opened, someone yelled for the shield to be taken out and the shield was completely out of the cell within seconds.9 Plaintiff can be heard yelling, “Ow,” twice. About 25 seconds after Plaintiff‘s cell door was opened, someone yelled “leg irons on.”10 Plaintiff was continually told to “stop resisting.” It appears that he is pinned on his right side or stomach. About 42 seconds after entering Plaintiff‘s cell,11 there were approximately 8 repetitive pounding sounds while a team member told Plaintiff to “stop resisting,” and Martin yelled, “Stop resisting . . . put your arms down . . . put your arms behind your back and stop resisting.” She then announced that “the inmate [wa]s continuing to resist,” and asked the team members to put him on his back. Plaintiff was repeatedly told to “stop resisting.” Approximately 1 minute and 8 seconds after entry into
The left side of Plaintiff‘s face is visible, but it is still difficult to tell the severity of the actual injury. It appears to be, as the nurse documented, swollen and bruised. Plaintiff continued to threaten staff while being escorted to his cell. He said, “I like this type of sh*t, man. You like it. I love it. You all like it. I love it. I wasn‘t rеady for you this time but I‘ll be ready next time. . . . First mother f*cker gonna get it.” He continued to make threats while staff removed the restraints and after his cell door was closed. The camera operator reported the time as 11:54 a.m. Martin provided a closing on the camera, and the video concluded at 11:55 a.m.
III. Standard of Review
“‘Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.‘” Hinkle v. Midland Credit Mgmt., Inc., 827 F.3d 1295, 1300 (11th Cir. 2016) (quoting Jurich v. Compass Marine, Inc., 764 F.3d 1302, 1304 (11th Cir. 2014)); see
“[W]hen the moving party has carried its burden under
IV. Analysis
Plaintiff acknowledges that his refusal to submit to hand restraints warranted some degree of force. Doc. 42 at 4. He does not take issue with the chemical spraying, but rather focuses on what happened inside his cell with the extraction team. He readily admits (and it can be clearly seen on the second video disk) that he charged the extraction team when his cell door opened. But he asserts that the force used after “he was down, restrained, and no longer resisting” was unconstitutional. Id.
A. Eighth Amendment Standard
The Eighth Amendment prohibits the infliction of cruel and unusual punishment.
(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 v. Albers, 475 U.S. 312, 321 (1986)); Miles v. Jackson, - - - F. App‘x - - -, 2018 WL 6433684, at *1 (11th Cir. Dec. 7, 2018). “When considering these factors, [courts] ‘give a wide range of deference to prison officials acting to preserve discipline and security, including when considering decisions made at the scene of a disturbance.‘” Fennell v. Gilstrap, 559 F.3d 1212, 1217 (11th Cir. 2009) (per curiam) (quoting Cockrell, 510 F.3d at 1311).
“The Eighth Amendment‘s prohibition of cruel and unusual punishments necessarily excludes from 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.” Hudson, 503 U.S. at 9-10 (internal quotations and citations omitted). Indeed, not “every malevolent touch by a prison guard gives rise to a federal cause of action.” Id. at 9 (citation omitted). “While a lack of serious injury is relevant to the inquiry, ‘[i]njury and force . . . are only imperfectly correlated and it is the latter that ultimately counts.‘” Smith v. Sec‘y, Dep‘t of Corr., 524 F. App‘x 511, 513 (11th Cir. 2013) (quoting Wilkins v. Gaddy, 559 U.S. 34, 38 (2010)). “A prisoner may avoid summary judgment, ‘only if the evidence viewed in the light most favorable to him goes beyond a mere dispute over the reasonableness of the force used and will support a reliable inference of wantonness in the infliction of pain.‘” Stallworth v. Tyson, 578 F. App‘x 948, 953 (11th Cir. 2014) (quoting Brown, 813 F.2d at 1188).
B. Relevant Factors Regarding Whether Force was Used Maliciously and Sadistically
1. Extent of Injury
In Plaintiff‘s Declaration, he describes his injuries:
As I began to rinse off the chemical agent and blood from my face and body[,] I assessed the damage done to me by the hands of the defendants. The left side of my face was deformed with swelling. I had large knots all over my head and skull. My left hand felt broken and was swollen. I had a deep cut inside of my mouth, a large laceration on my arm and immediately I knew that something was really wrong with my left eyе.
. . . .
Because of the unnecessary and brutal beating of the defendants[,] I suffered numerous injuries. Of the most severe were injuries to my left eye and my left hand which have never healed and I believe to be permanent injuries, which have not healed to this day. Other injuries were to my neck, a concussion, large and painful swelling and bruising to my face and head, which left my face deformed, as well as deep lacerations on the inside of my mouth, and right forearm along with minor cuts and abrasions.
Doc. 42-1 at 8, 9. Plaintiff, however, refused medical treatment after he was extracted from his cell and had taken a shower, so the nurse could only document the injuries she could readily see upon visual inspection while Plaintiff was in the shower cell. The medical record
While the videos show the left side of his face was injured, it is difficult to see thе extent of the actual injury, but it appears to be bruised and swollen. Plaintiff‘s arms were sporadically visible in the shower and when he walked back to his cell; he did not appear to be bleeding or have any lacerations. Despite Plaintiff‘s description of his injuries, the evidence shows that his injuries were not so serious that he needed immediate medical attention. See Plaintiff‘s Declaration (Doc. 42-1) at 8 (“While in the shower stall Nurse Glover tried to assess me, not in the best state of mind I refused medical attention, however later that nite [sic] I did complain to Nurse Glover on her rounds about some of my injuries and eventually signed up numerous times for sick-call to seek medical attention for my most severe of injuries.” (emphasis added)). He testified at deposition that in the evening on the date of the cell extraction, he told the nurse on her rounds that he thought he had a concussion, and she responded, “Okay, well, I‘ll try to get back to you.” Doc. 36-1 at 16 (“I really didn‘t say anything. I just complained, I just mentioned it to her, and I had a deep cut inside my mouth, like a really deep cut, I thought it might need some stitches, and I complained to her about that, I think I got a really deep cut. . . . Honestly, I‘m gonna be honest with you, I really just toughed it out, man.“).
It is reasonable to suspect that Plaintiff would have some injury after being sprayed with chemical agents multiple times and then being physically removed from his cell, especially given Plaintiff‘s physical resistance. However, it took him eight days (November
Twenty days after the cell extraction (November 14, 2012), Plaintiff submitted another sick-call request:
I need medical attention for my left thumb about (3) weeks ago while being cell extracted an officer20 wrenched my thumb backwards, I think it may be broken. Its been (3) weeks since the injury and I‘m still having pain and discomfort [and] I have almost no range of motion with my thumb. When the injury originally happened my whole left hand swelled up and was black and blue. This is the first time I‘ve sought medical care because the pain will not go away.
Doc. 42-2 at 5 (emphasis added). He was evaluated for his complaints regarding his thumb on November 19, 2012. Id. at 11; Ex. B at 7. On November 29, 2012, Plaintiff‘s left thumb was x-rayed. See Doc. 42-2 at 27; see also Ex. B at 2 (“Plaintiff‘s medical records show that
With respect to his eye, he complained again on December 16, 2012, that something was “seriously wrong with [his] eye,” because he kept “seeing white balls of lite [sic], and [his] vision [wa]s impaired at times.” Doc. 42-2 at 7. He was evaluated on December 18, 2012, at which time he had no complaints about his vision. Doc. 42-2 at 14; Ex. B at 10. On December 26, 2012, Plaintiff had been referred for аn optometry consultation and an appointment was scheduled. Doc. 42-2 at 15; Ex. B at 11. On January 21, 2013, he submitted another sick-call request about his eye. Doc. 42-2 at 8. The following day, January 22, 2013, he was evaluated and found to have “poor visual a[c]uity.” Id. at 16; Ex. B at 12. On February 22, 2013, Plaintiff was seen by the consultant. Doc. 42-2 at 17-18; Ex. B at 13,
In response to Plaintiff‘s sick-call requests, he was evaluated and treated. His medical records do not support his allegations of severe injury as a result of the cell extraction. The fact that Plaintiff made several sick-call requests does not mean that he had a serious injury. See generally Johnson v. Moody, 206 F. App‘x 880, 884-85 (11th Cir. 2006) (affirming district court‘s grant of summary judgment in favor of defendants on inmate‘s excessive force claim; recognizing that while the inmate “complained of pain for several months, the objective medical evidence does not support his subjective complaints“). In light of the evidence presented, especially when considering Plaintiff‘s refusal of medical care immediately following the incident and eight-day delay in submitting his first sick-call request, the Court finds that Plaintiff, at most, suffered minimal injuries that were of the type to be expected given his resistance and the forced cell extraction. Of course, suffering only minor injuries does not defeat his excessive force claim, but does weigh against finding a constitutional violation.
2. Need for Application of Force
As Plaintiff recognizes, his refusal to comply with staff members’ orders, even after verbal counseling and use of chemical agents, necessitated a need for force. The need for force was amplified when Plaintiff charged the extraction team members (the first of whom
3. Relationship Between Need and Amount of Force Used
Staff utilized a series of techniques, beginning with verbal counseling and ultimately ending with the cell extraction, in an attempt to gain Plaintiff‘s compliance. Throughout the process, Plaintiff was afforded numerous opportunities to comply and provided with time to consider his decision. At each opportunity, Plaintiff declined and became increasingly aggressive and threatening toward staff.
The cell extraction team members were met with physical aggression immediately upon entering Plaintiff‘s cell. Despite being in a chaotic situation, the extraction team appeared calm and professional while attempting to fully restrain Plaintiff despite his resistance.
Plaintiff focuses on the force used in his cell after he stopped resisting. However, after the team announced that the cuffs and leg restraints were on, there were no additional violent movements inside the cell, and Plaintiff did not cry out in pain after that point. The unidentified repetitive pounding sound heard on the video occurred prior to this point. From the time the team entered the cell to the time Martin announced that the officers were going to stand Plaintiff on his feet, a mere 2 minutes and 38 seconds had elapsed. Plaintiff was standing on his feet and walking out of his cell on his own accord (with the officers having only a custodial grip on his arms) in approximately 3 minutes.
4. Efforts to Temper Severity of Forceful Response
Staff attempted to gain Plaintiff‘s compliance before using any kind of forceful response. Plaintiff was repeatedly given the opportunity to comply with staff‘s verbal orders, but he refused. After the third deployment of chemical agents, a nurse came to Plaintiff‘s cell to encourage him to take a decontamination shower and advise him of the adverse effects of the chemical agents. Following the cell extraction, Plaintiff was immediately placed in the shower and a nurse came to examine him, but Plaintiff refused to discuss any issues with the nurse. During this time, Plaintiff was continually threatening to murder staff. The entire incident was videotaped, the duty warden had been notified, and superior officers were present during the cell extraction. This factor weighs against finding a constitutional violation.
5. Extent of Threat to Safety of Staff
During the administration of chemical agents, Plaintiff displayed threatening and aggressive behavior and verbalized threats against staff. He declared that he was “ready to die,” thus evincing a general disregard for what happened to him. Plaintiff stood immediately behind his cell door, waiting for the extraction team to enter. He aggressively charged the cell extraction team members as soon as his cell door was opened. Given the length of time during which Plaintiff continued to resist orders to submit to hand restraints, his physical assaults on staff, and his verbal threats, it was reasonаble for staff to consider Plaintiff a threat to safety.
C. Findings
All five factors weigh against finding that the Defendants used force maliciously and sadistically. The undisputed evidence establishes that Defendants used some force to accomplish a legitimate security interest, i.e., to obtain Plaintiff‘s compliance with the order to submit to hand restraints, and that, at worst, Plaintiff received minimal injuries consistent with the amount of force which was necessary to restrain him. Defendants were forced to react to Plaintiff‘s initial attack, and they were required to make split-second decisions to complete their mission: to gain Plaintiff‘s compliance using the minimal amount of force
In some excessive force cases, the parties’ competing versions of events are enough to defeat summary judgment. While the videos do not show every move made by each Defendant or by Plaintiff, they do document the scenario sufficiently to give an objective view of what happened. The videos also establish Plaintiff‘s aggressive and belligerent actions which contributed to the necessity of the force used against him and “obviously contradict” Plaintiff‘s contrary testimony. Pourmoghani-Esfahani, 625 F.3d at 1315; see also Oliver v. Warden, - - - F. App‘x - - -, 2019 WL 549568, at *4-5 (11th Cir. Feb. 12, 2019); Buckman v. Morris, 736 F. App‘x 852, 853-54 (11th Cir. 2018). Even looking at the record in the light most favorable to Plaintiff, no reasonable jury could find that Plaintiff suffered a violation of his Eighth Amendment rights. Therefore, the Court will grant Defendants’ Motion and enter judgment in their favor.21
Accordingly, it is
ORDERED:
- All claims against Defendant John Doe are DISMISSED.
- Defendants’ Motion for Summary Judgment (Doc. 36) is GRANTED.
- The Clerk of Court shall enter judgment in favor of Defendants and against Plaintiff and thereafter close the file.
DONE AND ORDERED at Jacksonville, Florida, this 4th day of March, 2019.
TIMOTHY J. CORRIGAN
United States District Judge
JAX-3 3/4
c:
Lester W. Hill, #347288
Counsel of Record