HOPE THAI CANNON, Magistrate Judge.
This matter is before the Court on Defendants' Motion for Summary Judgment (ECF Doc. 132).
Plaintiff, an inmate currently incarcerated at Santa Rosa Correctional Institution ("SRCI"), files this suit against the Defendants seeking monetary damages
On June 16, 2015, Plaintiff fled from Sergeant Kent as Kent was trying to conduct a pat down search of Gordon for contraband.
Plaintiff claims Defendants either participated in using force, encouraged others to use force or failed to intervene to protect him after he "peacefully submitted" to Trevino. Specifically, Plaintiff alleges that Defendants Nelson and Cassidy
Defendants move for summary judgment on Plaintiff's claims for compensatory and punitive damages on the ground that Plaintiff suffered no physical injury and, thus, is entitled only to nominal damages of $1.00. Defendants also move for summary judgment on Plaintiff's failure to intervene or protect claim on the ground that if they are alleged to have perpetrated the excessive force they cannot also be liable for failure to protect or intervene. Additionally, Defendant Marinin moves for summary judgment on the supervisory liability claim. Finally, Defendants move for summary judgment on Plaintiff's retaliation, Fourteenth Amendment and conspiracy claims. In support of their motion, Defendants rely on Plaintiff's medical records from the incident and his deposition testimony.
In Plaintiff's opposition, Plaintiff argues that summary judgment should be denied on the Eighth Amendment claim because he has shown that he has suffered more than a de minimis injury. Plaintiff argues the motion should be denied on his failure to protect/intervene claim as to Defendants Smith and Paul; and that he has stated facts to support a conspiracy claim as to all Defendants, except Defendant Smith. Plaintiff concedes, however, that judgment is appropriate on his First Amendment retaliation claim and his Fourteenth Amendment equal protection claim.
To prevail on their motion for summary judgment, Defendants must show that Plaintiff has no evidence to support his case or present affirmative evidence that Plaintiff will be unable to prove his case at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If Defendants successfully negate an essential element of Plaintiff's case, the burden shifts to Plaintiff to come forward with evidentiary material demonstrating a genuine issue of fact for trial. Id. The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 248 (1986) (emphases omitted). An issue of fact is material if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case. See id.; accord Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992).
The Court must view all the evidence, and all factual inferences reasonably drawn from the evidence, "in the light most favorable to the non-moving party." Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 918 (11th Cir. 1993). "If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment." Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir.1992) (citing Mercantile Bank & Trust Co. v. Fidelity and Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). The Court is not obliged, however, to deny summary judgment for the moving party when the evidence favoring the nonmoving party is "merely colorable or is not significantly probative." Anderson, 477 U.S. at 249-50 (citations omitted). "A mere `scintilla' of evidence supporting the [nonmoving] party's position will not suffice" to demonstrate a material issue of genuine fact that precludes summary judgment. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990) (quoting Anderson, 477 U.S. at 242). "[C]onclusory allegations without specific supporting facts have no probative value," and are legally insufficient to defeat summary judgment. Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000).
It is well settled in the Eleventh Circuit that an incarcerated individual cannot recover compensatory or punitive damages for a constitutional violation unless he can demonstrate a more than de minimis physical injury. See Brooks v. Warden, 800 F.3d 1295, 1307 (11th Cir. 2015) (collecting cases construing § 1997e(e) of the PLRA). Where the physical injury is de minimis or, in some circumstances, where there is no physical injury the plaintiff can only recover nominal damages. Id. Although the Eleventh Circuit has not adopted a definition of "de minimis," the court has acknowledged an injury is more than de minimis if it is "an observable or diagnosable medical condition requiring treatment by a medical care professional". Thompson v. Sec'y, Fla. Dep't of Corrections, 551 F. App'x 555, 557 n.3 (11th Cir. 2014). Cuts, bruises, and abrasions arising from use of force are typically deemed de minimis injuries. See, e.g., Nolin v. Isbell, 207 F.3d 1253, 1255, 1258 (11th Cir. 2000) (bruising to Plaintiff's forehead, chest, and wrists was de minimis injury); Moffett v. Hagan, No. 6:15-CV-108, 2016 WL 205402, at *4 (S.D. Ga. Jan. 15, 2016), report and recommendation adopted, No. 6:15-CV-108, 2016 WL 447623 (S.D. Ga. Feb. 4, 2016) (collecting cases and concluding that broken or bruised fingernail and pain and swelling in hand caused by slamming of tray flap on inmate's arm was de minimis injury); Parker v. Dubose, No. 3:12CV204/MCR/CJK, 2013 WL 4735173, at *2 (N.D. Fla. Sept. 3, 2013) ("Plaintiff's alleged black eye, bloody lip, scrapes, abrasion and `backpains' do not amount to more than de minimis physical injury . . . .").
After reviewing Plaintiff's deposition, second amended complaint, and medical records, the undersigned finds that a reasonable jury could find that Plaintiff suffered a more than de minimis physical injury from Defendants' conduct.
The discrepancies between Plaintiff's description of his injuries and the medical records establish that a dispute exists concerning Plaintiff's injuries. Plaintiff's description of his injuries and symptoms is not so blatantly contradicted by the record that the Court may deem them implausible and disregard them for purposes of summary judgment.
Indeed, cases addressing similar injuries have declined to find that the injuries are de minimis. See e.g., Hudson v. McMillian, 503 U.S. 1, 10-11 (1992) (holding that blows directed at prisoner, which caused "bruises, swelling, loosened teeth and cracked dental plate," were not de minimis for Eighth Amendment purposes); Wilkins v. Gaddy, 559 U.S. 34, 38, 40 (2010) (finding district court erred in dismissing plaintiff's complaint based on de minimis nature of his injuries, allegations that force caused a bruised heel, back pain and other injuries were sufficient under the Eighth Amendment); Gomez v. Chandler, 163 F.3d 921, 922, 925 (5th Cir. 1999) (holding that "cuts, scrapes, contusions to the face, head and body" are more than a de minimis injury); Holloway v. Cohen, 61 F.App'x 435, 436 (9th Cir. 2003) (holding that allegations that injuries from force included contusions, abrasions and numerous lumps on the plaintiff's head are sufficient to state a claim under the Eighth Amendment).
Accordingly, based on the record before the Court, the undersigned recommends that Defendants' motion for summary judgment as to Plaintiff's claims for compensatory and punitive damages should be denied.
Defendants have moved for summary judgment on Plaintiff's failure to protect claim against Defendants Trevino, Sims, Nelson, Tolbert, Cassidy and Bolen, arguing these Defendants cannot be liable for committing excessive force and also for failing to prevent it. A review of Plaintiff's second amended complaint, however, shows that he is asserting a failure to intervene claim against Defendant Smith and Defendant Paul only.
As an initial matter, Defendant Smith has not been served and is not a party to the instant motion for summary judgment. Also, it does not appear that Defendant Paul has moved for summary judgment on this claim (even though he is a party to the motion). Regardless, the undersigned finds that Paul is not entitled to summary judgment on Plaintiff's failure to intervene or protect claim. ECF Doc. 132 at 15.
"[A]n officer can be liable for failing to intervene when another officer uses excessive force." Priester v. City of Riviera Beach, 208 F.3d 919, 924 (11th Cir. 2000); see Dukes v. Miami-Dade Cty., 232 F. App'x. 907, 913 (11th Cir. 2007) ("[I]f a police officer, whether supervisory or not, fails or refuses to intervene when a constitutional violation such as an unprovoked beating takes place in his presence, the officer is directly liable under Section 1983.") (citing Ensley v. Soper, 142 F.3d 1402, 1407 (11th Cir. 1998)). The officer is only liable if the officer "was in a position to intervene." Williams v. Scott, 433 F. App'x 801, 805 (11th Cir. 2011) ("Prison correctional officers may be held directly liable under § 1983 if they fail or refuse to intervene when a constitutional violation occurs in their presence.") (citing Ensley, 142 F.3d at 1407). As to Defendant Paul, Plaintiff alleges that Paul "approached the moving procession with a video recorder in hand," and was ordered not to turn the camera on "until we are finished with him, he's going to pay with his face for this one,"— an order which he obeyed. ECF Doc. 109 at 8. Plaintiff further alleges Paul failed to respond to protect him. ECF Doc. 109 at 16. Based on these allegations, which have not yet been disputed by Defendants, a reasonable jury could find that Paul failed to intervene or protect the Plaintiff.
To the extent Plaintiff seeks to hold Defendants Trevino, Sims, Nelson, Tolbert, Cassidy and Bolen for failing to protect or intervene, the undersigned agrees with Defendants that summary judgment is appropriate. In Plaintiffs' second amended complaint, Plaintiff alleges that Defendants Nelson and Cassidy "grabbed the plaintiff aggressively and placed him in a `double shoulder bar,'" and subsequently "rammed the plaintiff['s] head into the front door of the medical building." ECF Doc. 109 at 7, 9. Plaintiff claims that Defendants Nelson, Cassidy, Trevino and Sims "piled on top of him repeatedly punching, beating and twisting his body," and that Trevino and Sims "struck the plaintiff on the backside of his head several times . . . ." ECF Doc. 9, 10. He also claims that "Cassidy tried to dislocate[] the bottom jawbone of the plaintiff by pulling it outwards." ECF Doc. 109 at 10. He claims that Bolen "closed his fist and punched the plaintiff on the top of his head with blunt force" and that Cassidy, Nelson, Trevino, Sims and Lee "slammed" him. ECF Doc. 109 at 9. Similarly, in his deposition, Plaintiff claims that Trevino, Sims, Nelson, Tolbert Cassidy, and Bolen punched him everywhere. ECF Doc. 132 at 15.
Defendants Nelson, Cassidy, Bolen, Trevino and Sims cannot be liable for both using excessive force and failing to intervene.
Defendant Marinin moves for summary judgment on both the excessive force and failure to protect or intervene claims, arguing that Plaintiff has failed to allege in his complaint or in his deposition that Marinin was involved in the alleged incident. The undersigned disagrees.
In Plaintiff's second amended complaint, Plaintiff alleges that as he was being escorted to medical by Defendants Nelson and Cassidy, the men encountered Marinin and Carter. ECF Doc. 109 at 8. Plaintiff claims Marinin told the officers, "deal with him out of my sight, now!" Id. Additionally, in Marinin's presence, Carter told the officers to "scrape his head up on the concrete or something. Scrape his head up. Make sure you scrape his head up! I want his head scraped up." Id. Subsequently, Plaintiff passed Marinin again, and Plaintiff claims that Marinin saw for the second time that Plaintiff was being restrained in a double shoulder bar position and gave the officers nods of approval, as if implying "good job," resulting in the officers applying more pressure to the Plaintiff. ECF Doc. 109 at 12.
The Court finds that these sworn allegations are sufficient to create a question of fact as to whether Marinin should have intervened in the excessive force and whether Marinin may have directed the use of excessive force. Accordingly, the undersigned recommends that summary judgment be denied as to the excessive force and failure to protect claim against Marinin.
Plaintiff alleges, "Defendants conspired to obstruct justice by creating false, misleading and inaccurate documents and reports to conceal the actual facts of why the use of force was used against the Plaintiff and the surrounding disciplinary reports which resulted in a partial investigation being conducted by the investigator office and Institution where the defendants knew that their actions w[ere] willfully, knowing[ly] and intentionally designed to impede the investigation efforts . . . ." ECF Doc. 109 at 16-17. He alleges that this conduct violated prison rule chapters 33-601.301(2)
In his deposition, Plaintiff claims Defendant Trevino lied about being injured to cover up his participation in the attack on Plaintiff. ECF Doc. 132-1 at 18. Plaintiff also claims Defendant Paul was ordered to keep his camera off during the attack and that all the inmates in the medical building were forced to line up facing the walls, so that they could not witness the attack. Id. at 22-23, 29-30, 33. Plaintiff claims Defendants documented the incident as a use of force because "that's the way you cover things up"; they knew there was a possibility that he would "say something or litigate"; and some women witnessed part of the incident. Id. at 36, 39. Additionally, Plaintiff claims Bolen told the other officers to stop beating Plaintiff because "the ladies was in there" and Bolen thought they were watching. Id. at 40.
Defendants move for summary judgment on two grounds. First, Defendants claim that the allegations are vague and conclusory. Second, they argue that Plaintiff's conspiracy claim is barred by the intracorporate doctrine, which provides that employees of the same entity cannot conspire with one another. In his opposition, Plaintiff argues the comments Defendants made to one another during the excessive force incident show that all Defendants, other than Smith, agreed to "deny Plaintiff his Eighth Amendment Right and his right to seek legal redress by inter alia drafting false reports, conspiring to conceal evidence and knowing or reckless falsities." ECF Doc. 150 at 13.
To prove conspiracy under section 1983, a plaintiff must (1) prove the parties had a "meeting of the minds" or reached an understanding to violate the plaintiff's rights and (2) prove an actionable wrong in support of the conspiracy. Bailey v. Bd. of Cnty. Comm'rs of Alachua Cnty., Fla., 956 F.2d 1112, 1122 (11th Cir.1992). "[T]he linchpin for conspiracy is agreement, which presupposes communication. . . ." Spadaro v. City of Miramar, 855 F.Supp.2d 1317, 1346 (S.D. Fla. 2012)(quoting Bailey, 956 F.2d at 1122). The first element, however, cannot be met where the alleged co-conspirators are employees of the same entity. This is true with regard to a claim for conspiracy under § 1983.
"The intracorporate conspiracy doctrine bars conspiracy claims against . . . government actors accused of conspiring together within an organization . . . ." Rehberg v. Paulk, 611 F.3d 828, 854 (11th Cir. 2010), aff'd, 566 U.S. 356 (2012). Under the doctrine, "employees, acting as agents of the corporation, are deemed incapable of conspiring among themselves...." See Dickerson v. Alachua County Com'n, 200 F.3d 761, 767 (11th Cir. 2000) ("The reasoning behind the intracorporate conspiracy doctrine is that it is not possible for a single legal entity consisting of the corporation and its agents to conspire with itself, just as it is not possible for an individual person to conspire with himself."). This doctrine applies to private corporations as well as to public, government entities. Grider, 618 F.3d at 1262-63 (applying intracorporate conspiracy doctrine to conspiracy claims against police officers); Claudio v. Crews, No. 5:13-cv-00345-MP-EMT, 2014 WL 1758106, at *6 (N.D. Fla. May 1, 2014) (applying intracorporate conspiracy doctrine to FDOC employees). The doctrine prohibits conspiracy claims when: (1) all defendants are employees of the same entity and (2) the defendants are being sued for employment-related activities. Grider, 618 F.3d at 1261; Claudio, No. 5:13-cv-00345-MP-EMT, 2014 WL 1758106, at *6. Additionally, the intracorporate conspiracy doctrine prohibits a claim against law enforcement officers for conspiracy in their individual capacities, as well as claims that do not seek to hold the corporate entity itself liable for its agent's activities. See Watson v. Edelen, 76 F.Supp. 1332, 1371 n. 16 (N.D. Fla. 2015).
Here, there is no dispute that all Defendants were employees of the FDOC on June 16, 2015, and there is also no dispute that all Defendants are sued for conduct they carried out as employees of the FDOC. Thus, the undersigned recommends that Plaintiff's claim for conspiracy against Defendants be dismissed under the intracorporate doctrine.
As stated above, Plaintiff concedes in his opposition to summary judgment that judgment in Defendants' favor is appropriate on both Plaintiff's claim for retaliation and violation of equal protection. ECF Doc. 150 at 12, ¶¶ VII and VIII. Thus, the undersigned will not engage in an extensive discussion of these claims but agrees that Defendants are entitled to judgment on them.
As to his First Amendment retaliation claim, Plaintiff claimed in paragraph 38 of the Second Amended Complaint that Defendant Major Lee violated the First Amendment rights by threatening violence against Gordon for "exercising his right to seek redress from the prison through use of the prison grievance system." ECF Doc. 109 at 16. Gordon concedes in his opposition to summary judgment, however, that "he cannot demonstrate engagement in protected speech or that any action taken on behalf of defendants was the result of plaintiff engaging in protective speech." ECF Doc. 150 at 12.
To prevail on a First Amendment claim of retaliation, the inmate must establish these elements: (1) his speech was constitutionally protected; (2) the defendant's retaliatory conduct adversely affected the protected speech; and (3) there is a causal relationship between the retaliatory action and the adverse effect on protected speech. See Douglas v. Yates, 535 F.3d 1316, 1321 (11th Cir. 2008) (citing Bennett v. Hendrix, 423 F.3d 1247, 1250, 1254 (11th Cir. 2005)). "[T]he gist of a retaliation claim is that a prisoner is penalized for exercising the right of free speech." Farrow v. West, 320 F.3d 1235, 1248 (11th Cir. 2003). Here, however, Plaintiff has failed to allege or present evidence showing that Lee's alleged wrongful conduct toward Plaintiff was motivated by an exercise of protected activity by Plaintiff. Instead, Plaintiff alleges that Lee threatened him after Plaintiff fled from officers. Plaintiff does not allege that Lee retaliated against him after Plaintiff filed a grievance, lawsuit or engaged in some other form of protected conduct. See Pittman v. Tucker, 213 Fed. App'x 867, 870-71 (11th Cir. 2007) (holding, in a case where an inmate alleged that prison officials made threats of physical harm to him after he filed grievances, that the inmate had alleged enough to make it through summary judgment stage).
As to his Fourteenth Amendment due process claim, Plaintiff claims that Defendant Bolen used racial epithets against Gordon during the physical assault conducted by white males, which "aggravated the Eighth Amendment Excessive use of force that occurred, and such behavior amounts to a separate equal protection violation." Id. at 17. Gordon concedes in his opposition, however, that this claim is "without legal merit," and that "Plaintiff, pro se litiga[nt,] misinterpreted the legal standard for this claim." ECF Doc. 150 at 12.
"To establish an equal protection claim, a prisoner must demonstrate that (1) `he is similarly situated with other prisoners who received' more favorable treatment; and (2) his discriminatory treatment was based on some constitutionally protected interest, such as race." Jones v. Ray, 279 F.3d 944, 946-47 (11th Cir. 2001) (quoting Damiano v. Florida Parole & Prob. Comm'n, 785 F.2d 929, 932-33 (11th Cir. 1986)). Plaintiff, however, has not alleged facts or presented any evidence from which a reasonable juror could conclude that he has established those elements. He has not identified any "similarly situated" prisoners who received more favorable treatment.
Contemporaneously with his opposition, Plaintiff also submitted a "Notice to the Court," in which he states that he has been unable to obtain his medical files from officials. ECF Doc. 151. Plaintiff provides no evidence of what he has done to try to acquire these records. Moreover, Plaintiff could have sought these records from the Defendants or sought to have a subpoena issued to the FDOC. There is no evidence that Plaintiff made any such discovery attempts. As this Court previously advised Plaintiff in its Order on Plaintiff's Motion to Confiscate his medical records (ECF Doc. 149), any discovery issues should have been raised to the Court prior to the discovery deadline. Thus, the Plaintiff is once again advised that the Court will not address any discovery issues sought to be raised by Plaintiff's Notice. Moreover, as Local Rule 7.1 provides, any request for relief must be made by an appropriate motion.
Accordingly, it is respectfully RECOMMENDED that:
1. Defendants' Motion for Summary Judgment be DENIED as to Plaintiff's claim for compensatory and punitive damages for violating his Eighth Amendment rights.
2. Defendants' Motion for Summary Judgment be DENIED as to Plaintiff's claim against Defendant Marinin.
3. Defendant's Motion for Summary Judgement be GRANTED as to Plaintiff's failure to intervene/protect claim against all Defendants, EXCEPT Marinin and Paul.
4. Defendants' Motion for Summary Judgment be GRANTED as to Plaintiff's claims for retaliation (First Amendment claim), violation of his rights to equal protection (Fourteenth Amendment claim), and conspiracy to obstruct justice.
5. That the matter be referred to the undersigned for further pretrial proceedings.
DONE AND ORDERED.
