[DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________            FILED
                                                      U.S. COURT OF APPEALS
                                   No. 09-12151         ELEVENTH CIRCUIT
                                                            JULY 29, 2010
                               Non-Argument Calendar
                                                             JOHN LEY
                             ________________________
                                                               CLERK

                      D. C. Docket No. 07-01705-CV-T-26-EAJ

RUSSELL ROGERS,


                                                              Plaintiff-Appellant,

                                      versus

GRADY JUDD,
in his official capacity as Sheriff
for Polk County, Florida,
PATRICK RENNEY,
SANDRA BARRETT,
RONALD ODOSKI,


                                                        Defendants-Appellees,

ANDREW SKIGEN,

                                                     Interested Party-Appellee.
                            ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                         _________________________

                                    (July 29, 2010)

Before TJOFLAT, BIRCH and ANDERSON, Circuit Judges.

PER CURIAM:

      Russell Rogers, a Florida state prisoner proceeding pro se, appeals the

district court’s dismissal of his state law assault, battery, and negligence claims

against Grady Judd, in his official capacity as sheriff for Polk County, Florida, and

detention deputies Patrick Renney, Sandra Barrett, and Ronald Odoski, in their

individual capacities (collectively, “the defendants”) as time-barred, and the jury’s

verdict in favor of deputies Renney, Barrett, and Odoski on Rogers’s 42 U.S.C.

§ 1983 claim alleging that the deputies subjected him to cruel and unusual

punishment, in violation of the Eighth Amendment. After review of the record and

the parties’ briefs, we AFFIRM.

                                 I. BACKGROUND

      On 21 September 2007, Rogers, with the assistance of counsel, filed a

complaint, which he later amended, against the defendants, alleging that they

violated his Eighth Amendment right to be free from cruel and unusual punishment



                                           2
when, on 17 February 2004, in the Polk County Jail, deputies Renney, Barrett, and

Odoski illegally seized, beat, applied mace to, and tortured him while he was

handcuffed behind his back, causing him permanent injury. R1-1; R1-19 at 3-6, 9-

11, 14-16. Rogers also asserted state law claims of (1) assault, battery, and false

imprisonment against the defendants, and (2) negligence against Judd in the hiring,

training, disciplining, and supervising of deputies Renney, Barrett, and Odoski.

R1-19 at 6-9, 11-14, 16-26.

      The defendants answered, denying the allegations and asserting various

affirmative defenses, including that (1) Rogers’s action was untimely because it

was not brought within one year of the matter complained of, as required by Fla.

Stat. § 95.11(5)(g), and (2) the defendant deputies (a) held a reasonable belief that

Rogers would injure them or others if not repelled by force, and (b) used a

reasonable amount of force under the circumstances. R1-20, 23 at 9. The district

court granted the defendants’ motion for summary judgment as to Rogers’ § 1983

claims against Judd and as to all of Rogers’ false imprisonment claims. R1-39 at

11-23; R1-48 at 9. Although the court denied summary judgment as to Rogers’

assault, battery, and negligence claims, see R1-48 at 9-10, it subsequently

dismissed these claims after finding that they were barred by Fla. Stat.

§ 95.11(5)(g), which prescribes a one-year statute of limitations for “an action



                                           3
brought by or on behalf of a prisoner . . . relating to the conditions of the prisoner’s

confinement,” R3 at 13-14. The only claims remaining for the jury to consider

were Rogers’ § 1983 claims against Renney, Barrett, and Odoski.

         Prior to trial, Rogers filed a motion in limine objecting to evidence,

including photographs, of injuries sustained by Raymond Noble, a prison deputy,

following a confrontation between Noble and Rogers that occurred just prior to the

incident alleged in the complaint. See R1-58; R1-88 at 4. Rogers conceded that

his altercation with Noble was relevant as to the general background of what

happened on the day he alleges he was beaten, but argued that the photographs and

“specifics [of] [how] bad [Rogers] beat [Noble] up” were unduly prejudicial. R2 at

86-87.

         The district court overruled Rogers’ objection, finding that the incident with

Noble was “inextricably intertwined” with the allegations in the complaint and that

the injuries sustained by Noble, to the extent they were known to the defendant

deputies, were “relevant in terms [of the] use of force that they felt was appropriate

under the circumstances.” 

With respect to the photographs, the court

found that their probative value was not outweighed by the danger of unfair

prejudice, and received them into evidence accordingly. 

91.

         Rogers also objected to the introduction of evidence that he had been



                                             4
involved in a physical altercation with another detention deputy, Larry Traylor, on

19 June 2002. See R1-88 at 5; R2 at 99-100. He conceded that this incident, if

known to the defendants, was relevant to the defendants’ state of mind on the day

of the incident alleged in the complaint, but argued that the defendants were

“trying to bring in more specifics of that act than would be necessary.” R2 at 99-

100. Rogers further argued that this incident, unlike the incident involving Noble,

was not “inextricably intertwined” with the events giving rise to the complaint

because it occurred two years earlier. 

The defendants countered that

this evidence was significant because Barrett personally witnessed and was

involved in the altercation between Traylor and Rogers, and because the other

defendant deputies had been briefed on the incident and had spoken to Traylor

directly about it. 

The evidence was therefore “relevant . . . as to [the

defendants’] perception [of] [the] threat” Rogers posed. 

The court

agreed that evidence of the altercation between Traylor and Rogers, including

photographs of Traylor following the altercation, was admissible. 

next quarreled over the relevance of the fact that Rogers was

serving a life sentence. 

The defendants argued that Rogers’ sentence

was relevant “to shed light on the state of mind of [the defendants] and their

perception of [the] threat” because “[if] [they] were aware that [Rogers] had a life



                                           5
sentence, a serious sentence, then . . . their perception [of] [the] threat would be

more than [if] [they] knew he was just there for a parking ticket.” 

Rogers countered that a life sentence itself is not relevant because a person could

be sentenced to life imprisonment for a child sex crime, which would not make

him a threat to a deputy. 

Furthermore, Rogers argued, even if evidence

that he was serving a life sentence were relevant, it was a prior bad act under

Federal Rule of Evidence 404 and was prejudicial, especially in light of the

evidence regarding the Noble and Traylor incidents. 

disagreed,

finding that the evidence was both highly relevant and highly probative. 

      After ruling on the evidentiary issues, the district court heard the testimony

of Rogers, Noble, and defendants Odoski, Barrett, and Renney. Rogers testified

that on 17 February 2004, he left his cell to go see the prison chaplain. 

When Noble saw Rogers, he told Rogers to return to his cell. 

was

walking back to his cell, he picked up a garbage can and threatened to throw trash

at Noble. 

him from behind and a struggle ensued. 

Deputy Supinger, who also was present, sprayed mace in Rogers’ face, impairing

his vision. 

Rogers was subsequently handcuffed and escorted to the

nurse’s station. 

Rogers testified that while he was standing in the



                                            6
corner of the nurse’s station waiting to be treated, Odoski bent back his thumbs,

slammed his head into the wall, and kicked him. 

Rogers testified

that Renny also participated in the incident at the nurse’s station and that Sergeant

Barrett was present but did not order Odoski and Renney to stop. 

250. After leaving the nurse’s station, Odoski and Renney took Rogers to the

isolation dorm. 

Once there, either Odoski or Renney, he was not sure

which deputy, tripped him, causing him to fall face-first onto the concrete floor.

to choke him while Renney kneed or kicked him in the back. 

present during this incident, but did nothing to stop it. 

Rogers testified that he suffered injuries to the left side of his face, which required

him to have jaw surgery, and soft tissue damage in his wrist. 

239.

Rogers testified that, from the time he was first handcuffed, he never once resisted.

He admitted, however, that earlier he had beaten Noble’s face, had tried

to gouge Noble’s eye out with his fingernail, and had thrown Noble against the

wall. 

      Noble testified that when he saw Rogers outside of his cell on 17 February

2004, he asked Rogers three to five times to return to his cell, but Rogers refused

and threatened to throw a nearby garbage can at him. R4 at 85-92. Noble then

kicked Rogers in the shin, got behind him, and wrapped his arms around Rogers’



                                            7
upper torso. 

When Noble lost his grip, Rogers turned toward Noble,

grabbed him by the waist, picked him up, and slammed him against the wall. 

had been alerted by radio that Noble needed assistance, came to

Noble’s aid. 

R2 at 160, 200-01.

      Odoski testified that when he reached Noble, he saw Rogers face down, on

his stomach, with his arms underneath his body. R2 at 201. Noble was straddling

Rogers, attempting to get Rogers’ arms out from under him so that he could be

handcuffed. 

Deputy Supinger, was kneeling beside Rogers,

directing Rogers to put his hands behind his back, but Rogers would not comply.

When Odoski knelt down on Rogers’ left side, he noticed blood

dripping from Noble’s face onto Rogers’ back. 

According to Noble,

there was so much blood on his face that he was unable to see. R4 at 89. Renney,

who also was present, helped Noble up and escorted him to the nurse’s station,

while Odoski escorted Rogers. Id.; R2 at 168.

      When they arrived at the nurse’s station, Odoski had to hold Rogers, who

was shuffling his feet, twisting his shoulders, and mumbling, against the wall by

the back of Rogers’ neck to keep him from turning around to see what was going

on behind him. R2 at 168-74, 177, 204-07. After the nurse examined Rogers,

Odoski, Renney, and Barrett took Rogers to an isolation cell. 

208.



                                          8
Once inside the isolation cell, Rogers freed himself from Odoski, faced him “in a

violent manner,” and said, “remember my face, MF’er.” 

Odoski took

Rogers’ statement as a threat, believing that Rogers might kick or head-butt him,

and “took him down to the floor.” 

that he knew of Rogers’

violent nature, considered him a very dangerous inmate, and tried to control Rogers

as best as he could using the least amount of force necessary. 

Odoski

was aware of the fight between Rogers and Traylor that had occurred about a year

and a half earlier, and that following the fight, Rogers was classified as a Code D

inmate, which meant that he was a disciplinary problem and had to be kept in

isolation. 

Odoski recalled that Rogers’ altercation with Noble

occurred shortly after Rogers was released back into the general population. 

Odoski further testified that he knew Rogers was serving a life sentence,

and this fact, combined with his knowledge of what Rogers had done to Traylor

and his having witnessed the injuries Rogers inflicted upon Noble, led him to

perceive Rogers as an extreme threat. 

      Deputy Renney testified that when they were in the nurse’s station on 17

February 2004, Rogers was constantly mumbling and making threats under his

breath. R3 at 118, 125-26. Renney recalled that Odoski had his hand on the back

of Rogers’ neck or upper back and was trying to hold Rogers’ face in the corner of



                                          9
the room. 

When Rogers tried to turn his head, Odoski would push his

face so that it was facing straight ahead. 

Renney testified that he was

aware of the incident that had taken place between Rogers and Traylor and had

witnessed what Rogers had done to Noble. 

Renney also knew that

Rogers was serving a life sentence and that he had been a Code D inmate in the

past. 

Renney stated that, based on this knowledge, he was not going to

take any chances with Rogers, whom he considered very dangerous. 

testified that she was present when Odoski had Rogers

against the wall in the nurse’s station, but did not observe Odoski or Renney use

any excessive force on Rogers, who kept making “taunting-type” remarks over his

shoulder. 

101-02. Barrett further testified that she had personally

observed Rogers’ attack on Traylor during which Rogers tried to “pull [Traylor’s]

eyes out.” 

The defendants then introduced into evidence photographs

of Traylor taken on the day of the altercation. 

Barrett recalled that

Traylor’s injuries were actually worse than they appeared in the photographs. 

that on the day in question, she had Rogers’ history in mind when

she ordered Odoski to keep Rogers restrained. 

Barrett also confirmed

that nobody kneed, punched, or beat Rogers in the isolation cell. 

      During closing arguments, defense counsel remarked that the United States



                                          10
was a great country not because of men like Rogers, but in spite of them. R4 at

184. With respect to Rogers’ fight with Noble that occurred after Rogers was

released from Code D status into the general population, defense counsel

remarked, “[t]his is what happens to people when you give violent inmates an

inch.” 

Rogers did not object to these arguments.

      The jury returned verdicts in favor of the defendants Renney, Barrett, and

Odoski, and Rogers appeals. R1-110.

                                   II. DISCUSSION

A. Dismissal of Negligence, Assault, and Battery Claims

      Rogers argues that the district court erred in dismissing as time-barred his

state law negligence, assault, and battery claims, contending that such claims were

subject to a four-year, rather than a one-year, statute of limitations.

      We review a district court’s determination of state law de novo. Price v.

Time, 

, 1334 (11th Cir. 2005). Under Florida law, a four-year

limitation period applies generally to assault, battery, and negligence claims. Fla.

Stat. § 95.11(3)(a), (o) (2002). “[A]n action brought by or on behalf of a

prisoner . . . relating to the conditions of the prisoner’s confinement” must,

however, be commenced within one year of when the cause of action accrued. 

With respect to assault and battery, § 95.11(3)(o) provides that the



                                           11
four-year period applies “except as provided in [§ 95.11(5)(g)].” 

(emphasis added).

       In Nicarry v. Eslinger, 

, 664 (Fla. Dist. Ct. App. 2008), the

Fifth District Court of Appeal held that a prisoner’s claim of negligence against the

Sheriff of Seminole County, Florida, was an action relating to the conditions of his

confinement and was therefore subject to the one-year limitation period under

§ 95.11(5)(g), rather than the four-year limitation period under § 95.11(3)(a).

Rejecting Nicarry’s argument that the “four-year statute of limitations for

negligence claims applied because he was challenging a single instance of

negligence” rather than “a continuous condition of his confinement,” the court

interpreted the phrase “conditions of the prisoner’s confinement” as encompassing

both ongoing and isolated prison conditions. 

       1
          In reaching this conclusion, the Nicarry court relied on two Supreme Court decisions,
McCarthy v. Bronson, 

, 

(1991) and Porter v. Nussle, 

,

(2002), both of which addressed, under the Federal Magistrates Act, 28 U.S.C.
U.S.C. § 631 et seq., and the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a),
respectively, whether a suit alleging a single instance of excessive force constitutes a challenge
to a prisoner’s conditions of confinement. In McCarthy, the Supreme Court held that a
prisoner’s complaint alleging that prison officials used excessive force when they transferred
him from one cell to another was an action “challenging conditions of confinement” under 28
U.S.C. § 636(b)(1)(B), which authorizes the “nonconsensual referral to magistrates for a hearing
and recommended findings of prisoner petitions challenging conditions of 

, 

, 1742. The Court rejected the prisoner’s argument
that “[s]uits alleging that administrators acted unconstitutionally in an isolated incident . . . are
not properly classified as ‘petitions challenging conditions of confinement,’” reasoning, in part,
that “the distinction between cases challenging ongoing conditions and those challenging
specific acts of alleged misconduct will often be difficult to identify.” 

111 S. Ct. at
1742. The Supreme Court subsequently held in Porter that the plaintiff-prisoner’s § 1983 suit

                                                 12
It is clear in this case that, under Nicarry,2 Rogers’ negligence claim against Judd

was subject to the one-year limitation period in § 95.11(5)(g), rather than the four-

year statute of limitation set forth in § 95.11(3)(a). Although Nicarry does not

address assault and battery claims specifically, Fla. Stat. § 95.11(3)(o) explicitly

states that the four-year statute of limitations for assault and battery applies “except

as provided in subsection[] . . . (5),” that is, except where, as here, the action is


alleging that his Eighth Amendment rights were violated when he was severely beaten by
corrections officers was an action with respect to “prison conditions” under the PLRA and thus
was subject to the PLRA’s requirement that he first exhaust administrative remedies. 

, 519-20, 532, 

, 985, 992. The Porter court disagreed with the Second
Circuit’s interpretation of the term “prison conditions” as meaning “circumstances affecting
everyone in the area rather than single or momentary matters, such as beatings directed at
particular individuals,” noting that “in the prison environment a specific incident may be
symptomatic rather than aberrational . . . . An unwarranted assault by a corrections officer may
be reflective of a systemic problem traceable to poor hiring practices, inadequate training, or
insufficient supervision.” 

, 991 (quotation marks and citation
omitted) . The Court further reasoned that the “single occurrence, prevailing circumstance
dichotomy” made “scant sense,” at least in the context of the PLRA, because such an
interpretation would enable a prisoner to “have immediate access to a court when a guard
assaults him on one occasion, but not when beatings are widespread or routine[.]” 

122
S. Ct. at 991-92. The Court thus concluded that the PLRA’s exhaustion requirement for suits
“with respect to prison conditions” “applies to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and whether they allege excessive force or
some other wrong.” 

, 122 S. Ct. at 992. We likewise have held that an
inmate’s claims of beatings by prison officials were claims related to prison conditions under the
PLRA. See Bryant v. Rich, 

, 1372 (11th Cir. 2008) (stating that 42 U.S.C.
§ 1997e(a) “applies to all inmate suits alleging excessive force, whether the prisoner alleges an
isolated episode of mistreatment or a prolonged and sustained pattern of harassment and
intimidation by corrections officers”) (quotation marks and citation omitted)).
       2
         Given the lack of any persuasive evidence that the Florida Supreme Court would arrive
at a conclusion contrary to that reached by the Nicarry court, we are bound to follow Nicarry in
deciding this appeal. Bravo v. United States, 

, 1326 (11th Cir. 2009) (per curiam)
(noting that when applying state law, we are bound to follow an intermediate state appellate
court “unless there is persuasive evidence that the highest state court would rule otherwise”)
(quotation marks and citation omitted)).

                                                13
brought by a prisoner and “relat[es] to the conditions of the prisoner’s

confinement,” Fla. Stat. § 95.11(5)(g). Because the action in this case “relat[ed] to

the conditions of [Rogers’] confinement,” the four-year statute of limitations

prescribed by § 95.11(3)(o) is inapplicable. The district court thus did not err in

dismissing Rogers’s assault, battery, and negligence claims, filed more than three

years after the accrual thereof, as time-barred.

B. Evidentiary Issues

      Rogers challenges the jury verdict on his § 1983 claims on the grounds that

the district court improperly allowed the defense to introduce evidence related to

his altercations with Noble and Traynor as well as evidence that he was serving a

life sentence. He argues that the probative value of this evidence was outweighed

by the danger of unfair prejudice and should have been excluded. He contends

additionally that defense counsel’s statements during closing argument, to wit,

“[t]his is what happens when you give a violent inmate a[n] inch,” and “America is

a great country not because of men like Russell Rogers[,] [but] despite men like

Russell Rogers,” were prejudicial and inflammatory in nature, mandating reversal

and a new trial.

      We review a district court’s evidentiary rulings for an abuse of discretion.

Cook v. Sheriff of Monroe County, 

, 1103 (11th Cir. 2005).



                                           14
Accordingly, we may not reverse the district court unless we find that it made a

clear error of judgment or applied the wrong legal standard. 

See also

United States v. Merrill, 

, 1301 (11th Cir. 2008) (“The district court

has broad discretion to determine the relevance and admissibility of any given

piece of evidence.”).

      “Relevant evidence means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Fed. R. Evid.

401. The district court may exclude relevant evidence if it determines “that the

probative value of the evidence ‘is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.’” 

(quoting Fed. R. Evid. 403). See

also United States v. Church, 

, 703 (11th Cir. 1992) (recognizing

“Rule 403’s strong presumption in favor of admissibility”). The district court did

not abuse its discretion in determining that the evidence to which Rogers objected

was relevant and that its probative value was not substantially outweighed by the

danger of unfair prejudice.

      The Supreme Court has instructed that when determining whether security



                                          15
measures taken by prison officials violated a prisoner’s Eighth Amendment rights,

the relevant inquiry is “whether force was applied in a good faith effort to maintain

or restore discipline or maliciously and sadistically for the very purpose of causing

harm.” Whitley v. Albers, 

, 320-21, 

, 1085 (1985)

(quotation marks and citation omitted). Factors such as “the need for the

application of force, the relationship between the need and the amount of force that

was used, and the extent of injury inflicted, are relevant to that ultimate

determination.” 

106 S. Ct. at 1085 (quotation marks and citation

omitted). “[E]qually relevant are such factors as the extent of the threat to the

safety of staff and inmates, as reasonably perceived by the responsible officials on

the basis of the facts known to them, and any efforts made to temper the severity of

a forceful response.” 

have noted that an officer’s knowledge of

an inmate’s past violent confrontations with prison guards may be relevant to the

assessment of the degree of force that a reasonable officer would have believed

was necessary. Skrtich v. Thornton, 

, 1301 n.7 (11th Cir. 2002).

      Rogers’ past confrontations with Noble and Traylor, both of which the

deputies either witnessed or had knowledge of, was clearly relevant to the issue of

the reasonableness of the deputies’ belief that the amount of force used was

necessary. Further, we cannot conclude that the district court erred in determining



                                           16
that the probative value of this evidence, including photographs of the injuries

sustained by Noble and Traylor, which demonstrated the severity of the harm that

Rogers was capable of inflicting if not controlled, outweighed the danger of unfair

prejudice. We also agree with the district court that evidence of Rogers’ life

sentence was relevant to the deputies’ perception of the threat he posed and that the

probative value of this evidence was not outweighed by the danger of unfair

prejudice.3

       Finally, we reject Rogers’ argument that defense counsel’s statements during

closing argument were so prejudicial as to mandate reversal. “[T]he trial judge is

given considerable discretion to control the tone of counsels’ arguments and,

absent an abuse of discretion, the decision of the trial court, which has had the

opportunity to hear the offensive remarks within the context of the argument and to

view their effect on the jury, should not be disturbed.” Allstate Ins. Co. v. James,

, 318 (11th Cir. 1988). On review, we look “to the entire argument,

the context of the remarks, the objection raised, and the curative instruction to

determine whether the remarks were such as to impair gravely the calm and


       3
          Rogers argues additionally that the district court erred in admitting evidence regarding
his past criminal convictions. The defendants correctly point out, however, that this evidence
was first introduced by Rogers. See R2 at 222-23. Rogers is therefore precluded from arguing
on appeal that the court abused its discretion in admitting such evidence. See United States v.
Baker, 

, 1216 (11th Cir. 2005) (“[I]t is a cardinal rule of appellate review that a
party may not challenge as error a ruling or other trial proceeding invited by that party.”).

                                                 17
dispassionate consideration of the case by the jury.” 

and

citation omitted).

      Because Rogers did not raise a contemporaneous objection to defense

counsel’s closing statements, we review the admission of those statements for plain

error only. Brough v. Imperial Sterling Ltd., 

, 1179 (11th Cir. 2002).

“For there to be plain error, there must (1) be error, (2) that is plain, (3) that affects

the substantial rights of the party, and (4) that seriously affects the fairness,

integrity, or public reputation of a judicial proceeding.” 

of plain

error is seldom justified in reviewing argument of counsel in a civil case.” 

and citation omitted).

      The district court did not plainly err in failing to strike defense counsel’s

closing remarks. First, counsel’s remark that “[t]his is what happens to people

when you give violent inmates an inch” was not improper given the context in

which it was made. Counsel made this statement when referencing the injuries that

Rogers inflicted on Noble after Rogers was removed from isolation and released

into the general population. Furthermore, we cannot say that counsel’s statement

that this country is great despite men like Rogers, even if improper, affected

Rogers’s substantial rights or the fairness, integrity, or public reputation of the

judicial proceeding. See 

.



                                            18
                                 III. CONCLUSION

      For the foregoing reasons, we affirm the judgments in favor of the

defendants and against Rogers.

      AFFIRMED.




                                        19