REPORT AND RECOMMENDATION

CHARLES A. STAMPELOS, Magistrate Judge.

Plaintiff John Spaulding, an inmate proceeding pro se and in forma pauperis, initiated this case in November 2011. ECF Nos. 1-2. In April 2012, Mr. Spaulding's third amended complaint was dismissed for failure to state a claim. ECF Nos. 19, 21-22. Mr. Spaulding's appeal of that dismissal was successful and the case was remanded "to allow Defendants the opportunity to respond to Spaulding's third amended complaint." ECF No. 36 at 7-8. At that time, the third amended complaint asserted claims against five Defendants: Adams, Neel, Gartman, Lago, and Woodall. ECF No. 17. Mr. Spaulding generally challenged the amount of time he spent in disciplinary confinement in 2011, the loss of privileges, and delayed medical treatment.2

After remand, ECF No. 37, Mr. Spaulding filed a motion requesting leave to file an amended complaint. ECF No. 38. The motion was granted and his proposed fourth amended complaint was filed. ECF No. 39. Mr. Spaulding's fourth amended complaint, ECF No. 41, greatly expanded the claims raised in this case as well as the number of Defendants. Instead of five Defendants, Mr. Spaulding named fifteen Defendants. ECF No. 41 at 1-3. After delay in submitting the service copies, see ECF Nos. 46, 54, Mr. Spaulding's fourth amended complaint was served. It is that version of the complaint that is at issue in this case.

Procedural History

Subsequently, Mr. Spaulding sought on numerous occasions to file additional amended complaints. See ECF Nos. 81, 162, 174, 192, and 209. Those motions were all denied. ECF Nos. 84, 102, 163, 177, 178, 180, 186, 196, 212, 232, and 238.

The fourth amended complaint [hereinafter "complaint"], ECF No. 41, was brought against all Defendants in both his or her individual and official capacity. ECF No. 41 at 3. The complaint has been dismissed as to Defendants Jennings and Johnson for failure to serve process. ECF Nos. 148 at 5; ECF No. 166. The complaint was dismissed as to Defendants Tucker, Adams, and Neel for failure to state a claim. ECF Nos. 148, 166. Defendants' motions to dismiss, ECF Nos. 74, 78, 97, and 118, were granted in part, ECF Nos. 148 and 166, and the claims brought against Defendants Bass, Ford, Gartman, Goodwin, Howard, and Landrum in their official capacities for monetary damages were dismissed. ECF No. 166. The claims against Defendants Lago, Woodall, and Reynolds in their official capacities, and requests for declaratory and injunctive relief were dismissed. Id. The case was remanded for further proceedings, including discovery, on the surviving claims which proceeded "against Defendants in their individual capacities only, limited to nominal damages only with the exception of Plaintiff's claims against Defendants Gartman and Madan" for which Plaintiff could request compensatory and punitive damages. ECF No. 166 at 4. Subsequently, the claim raised against Defendant Madan was dismissed for failure to serve process and for failure to state a claim. ECF No. 170, 179.

Thus, the claims proceed against Defendants Woodall, Ford, Landrum, Gartman, Howard, Bass, Lago, Reynolds, and Goodwin, who filed a motion for summary judgment. ECF No. 249. Mr. Spaulding also filed his own motion for summary judgment. ECF No. 231. The parties were advised of their responsibilities under Rule 56 and Local Rule 56.1 to file responses in opposition to the opposing party's motion for summary judgment. ECF No. 252. The motions are ready for review.

Legal standards governing a motion for summary judgment

"The 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). Thus, summary judgment is proper "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The "party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323, 106 S. Ct. at 2553. The non-moving party must then show3 though affidavits or other Rule 56 evidence "that there is a genuine issue for trial" or "an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S. Ct. at 2554; Beard v. Banks, 548 U.S. 521, 529, 126 S.Ct. 2572, 2578, 165 L. Ed. 2d 697 (2006).

An issue of fact is "material" if it could affect the outcome of the case. Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256, 1259 (11th Cir. 2004) (citations omitted). Additionally, "the issue of fact must be `genuine'" and the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (other citations omitted). "The mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (quoting Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000)).

"[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249, 106 S. Ct. at 2511 (noting that a "scintilla of evidence" is not enough to refer the matter to a jury). The Court must decide "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Hickson Corp., 357 F.3d at 1260 (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S.Ct. 2505, 2505, 91 L. Ed. 2d 202 (1986)). All "justifiable inferences" must be resolved in the light most favorable to the nonmoving party, Beard, 548 U.S. at 529, 126 S. Ct. at 2578 (noting the distinction "between evidence of disputed facts and disputed matters of professional judgment."),4 but "only if there is a `genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (quoted in Ricci v. DeStefano, 557 U.S. 557, 586, 129 S.Ct. 2658, 2677, 174 L. Ed. 2d 490 (2009)). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S. Ct. at 1356 (other citation omitted).

The Relevant Rule 56(e) Evidence

a. Defendants' Evidence

On February 20, 2011, Mr. Spaulding received a disciplinary report for Obscene or Profane Act.5 ECF No. 249, Ex. A, ¶2 (ECF No. 251-1); Ex. B (ECF No. 249-2). That disciplinary report was "rewritten . . . due to an error in the original report." Ex. B at ¶2. Defendant Howard was the investigating officer for the disciplinary report and delivered the disciplinary report to Mr. Spaulding on February 28, 2011. Ex. B at ¶4. Defendant Howard took a statement from Mr. Spaulding, and Mr. Spaulding was given an "opportunity to request witnesses and evidence." Ex. B ¶3. Defendant Howard advises that his job required him "to collect the evidence and present it to the hearing team for review, not to . . . make judgments about" an inmate's guilt or claims that an inmate's rights were violated by the disciplinary report (DR). Id.

Mr. Spaulding was placed in administrative confinement on February 20, 2011, pending the disciplinary hearing. Ex. A, ¶2, Att. 2. The disciplinary hearing was held on March 3, 2011, and Mr. Spaulding was found guilty of the DR as charged. Ex. B at ¶4. Mr. Spaulding was sentenced to 30 days in disciplinary confinement. Ex. A at ¶2; see also Ex. I at ¶3 (ECF No. 249-8).

It was noted that the disciplinary report had been re-written. Ex. C at ¶2 (ECF No. 249-3). "When a DR is presented to the hearing team, [the team is] not provided information about why the DR was rewritten, only that it was a rewrite." Id. "Generally, rewrites are ordered by the investigating officer due to some error in the original." Id. The Declaration of Defendant Goodwin states that nothing in Mr. Spaulding's disciplinary report indicates "the rewrite was improper." Id. Mr. Spaulding was found guilty of the charge because "there was sufficient evidence" and the facts stated in the report supported the charge. Id. at ¶3.

On March 7, 2011, Mr. Spaulding was moved from administrative confinement to disciplinary confinement.6 Ex. A at ¶2. Mr. Spaulding's 30 days in disciplinary confinement lasted from March 7th until April 6, 2011. Id.; see also Ex. I at ¶3.

While Mr. Spaulding was in confinement, he received a second disciplinary report7 for lewd and lascivious exhibition on March 18, 2011. Ex. B at ¶5. Mr. Spaulding testified in his deposition that the disciplinary report was written by Defendant Ford, and that she "falsely accused" him. Ex. L at 20 (ECF No. 249-10 at 6). Defendant Ford declares that the disciplinary report was "accurate." Ex. D at ¶3 (ECF No. 249-4).

Again, Defendant Howard delivered the DR to Plaintiff on March 22, 2011. Ex. B at ¶5. Mr. Spaulding was again provided the "opportunity to request witnesses and evidence and to submit a statement." Id. Mr. Spaulding "requested video evidence which he stated would show Officer Landrum delivering him the Special Management Meal [on] the evening of March 18, 2011." Id. Defendant Howard "reviewed the video, and found that it did show what appeared to be a Styrofoam management meal tray being delivered to [Mr.] Spaulding's cell," but Defendant Howard states that it was "not part of the disciplinary charge at issue and had no relevance to the infraction that occurred earlier that morning." Id.

Defendant Bass filed an affidavit advising that the disciplinary team "did not find any deficiencies" in the second disciplinary report written or the report "would have been sent back to be rewritten." Ex. G at ¶2 (ECF No. 251-1). Defendant Bass and the team concluded that the facts supported the charge against Mr. Spaulding and "there was sufficient evidence to find Spaulding guilty of [that] charge." Id. at ¶3.

On March 24, 2011, Mr. Spaulding was found guilty of the second DR. Ex. B at ¶5. Mr. Spaulding was sentenced to 60 days in disciplinary confinement, "to be served consecutively with the time he was already serving." Ex. A at ¶3. "Adding another 60 days to the DC time that began on March 7, 2011," reveals Mr. Spaulding "should have been released on June 5, 2011." Id.; see also Ex. I at ¶4. Defendant Bass also asserted that Mr. Spaulding's punishment of 60 days in confinement "was within the range of sanctions permitted by the" Defendants' rules. Ex. G at ¶3.

Defendant Ford also states that the rules do not require stating on a disciplinary report that an inmate was "placed on the special management meal" or that a magnet and pink sheet were placed on his door. Ex. D at ¶3. Defendant Ford states that "the magnet and pink sheet are a means of protecting female staff from" lewd behavior from inmates "who have a documented history of [such] actions." Id. at ¶4. She explains that the "magnet covers the cell window when a female is on the confinement wing and then it is removed when the female leaves." Id. "It is not punishment nor is it related to one DR." Id.; see also Ex. F at ¶3. (ECF No. 249-6). "The decision to cover an inmate's cell window in this manner is initially made by the Shift Supervisor, and is then reviewed by the Correctional Officer Chief (the Colonel) and by the Warden." Ex. F at ¶3.

Mr. Spaulding acknowledged in his deposition testimony that the "pink sheet and magnet" were not used to identify that an inmate had been found guilty in a criminal court proceeding of a sexual offense or had been adjudicated as "a sexual predator." Ex. L at pg. 11 (ECF No. 249-10 at 3). Rather, it's something that occurs at the institution. Id. Mr. Spaulding said that Lieutenant Johnson and Officer Jennings were the people who put the pink sheet and magnet on his cell door. Id. at 15 (ECF No. 249-10 at 4).

On March 18, 2011, Lieutenant Johnson (formerly a Defendant named in this case) recommended that Mr. Spaulding be "placed on the special management meal for his lewd and lascivious exhibition intentionally [directed] towards a female staff member." Defendants' Attachment 3 (ECF No. 251-1 at 11). "[T]he special management meal was used as means of deterring [that] type of behavior. . . ." Ex. E at ¶4. "Placement on the Special Management Meal was not done by the DR team and is not punishment, but is a separate management tool used and approved by security in certain instances to correct certain behavior." Ex. G at ¶5 (ECF No. 251-2 at 2). Similar to the magnet and window covering, a decision to serve an inmate the management meal is made by the Shift Supervisor, then reviewed by the Correctional Officer Chief and the Warden. Ex. F at ¶4.

Defendant Landrum served Mr. Spaulding the management meal. Ex. L at 26 (ECF No. 249-10 at 8). Defendant Landrum states that as a correctional officer, he did not "have any authority over whether an inmate was placed on the management meal." Ex. E at ¶2 (ECF No. 249-5). Those in charge of security operations make those decisions and, as an officer, Defendant Landrum "would have been provided a list of who was on the meal and would have followed those directions." Id. "[A] hearing is not required by Department rules" prior to placing an inmate on the management meal, also called the "loaf." Id. at ¶2.

The evidence reveals that Shift Supervisor Johnson interviewed Mr. Spaulding after issuance of the second disciplinary report. Ex. F, attachment 1 (ECF No. 249-6 at 4). Lieutenant Johnson advised Mr. Spaulding that he was recommending that Mr. Spaulding "be placed on the Management Meal due to his Lewd and Lascivious behavior." Id. It appears that Lieutenant Johnson also made the decision that the magnetic window cover should be used on Mr. Spaulding's cell window and would submit the request fo "Colonel R. Smith for further disposition." Id. Mr. Spaulding was placed on the management meal for only one day. Ex. L at 20 (ECF No. 249-10 at 6).

The Institutional Classification Team (ICT) recommended that Mr. Spaulding be released from disciplinary confinement to close management on June 1, 2011. Ex. A at ¶3. Defendant Gartman is unaware "why the ICT decided to move Spaulding early" but advises that the ICT may have counted the total 90 day sentence as beginning "from the date of his hearing, instead of from when he was actually moved to DC." Id. Mr. Spaulding was not actually moved until June 4th,8 which "may have been a bed space issue as well, or it could be that the ICT realized the error in counting his DC days. . . ." Id. Regardless, Defendant Gartman suggests "there is no indication that Spaulding's movements . . . were based on some improper motivation by staff." Id. Defendant Gartman also asserts that while she provided an initial grievance response using an incorrect date, "it appears to be based on human error." Id. Defendant Gartman declares she has "never knowingly falsified a document during" her 22 year career with the Department of Corrections. Id.

Defendants Gartman and Bass explain that Rule 33-601.308(3)(l), F.A.C., directs the disciplinary hearing team to "consider the time served in AC in determining the total number of days of recommended DC time." Ex. A at ¶4; Ex. G at ¶4. "It is not a requirement that the credit for AC time be given." Ex. A at ¶4; see also Ex. F at ¶6; Ex. H at ¶3 (ECF No. 249-7).

Defendant Gartman, along with Patricia Herring and Defendant Woodall, met on April 27, 2011, as the ICT to consider whether an inmate's behavior and institutional adjustment warrant a change in their Close Management level.9 Ex. A at ¶5. Mr. Spaulding's Classification Officer, Defendant Lago, recommended that Mr. Spaulding's level be increased from CM-III (the lowest, least restrictive level) to CM-II based on his "pattern of predatory actions towards female staff members during the review period." Id. The ICT agreed with Defendant Lago's recommendation. Id. "However, the ICT is not the final authority on the matter." Id. The ICT's recommendation is sent to the State Classification Office [SCO] for review. Id.; see also Ex. F at ¶7.

Mr. Spaulding attempted to compare his situation with another inmate, Johnny Cross, but Defendant Gartman advises that CM decisions are made "on a case by case basis and take into account overall security risks and institutional adjustment, not just one DR." Ex. A at ¶6. The ICT recommended that inmate Cross's CM status be increased from CM-III to CM-II, but the SCO "determined that because Cross only had one lewd act in 5 years, he could continue to be observed in CM III." Id.10

Defendant Gartman clarifies that on May 1, 2011, Mr. Spaulding had a fight with his cellmate while he was in disciplinary confinement and "broke his right pinky finger." Ex. A at ¶7. Mr. Spaulding claims that a month later, on June 2, 2011, he wrote a grievance concerning his broken finger. Id. Defendant Gartman consulted with the Chief Health Officer (CHO) to respond to the grievance11 and, in that particular case, the CHO advised "that if there was a need for further medical treatment," Mr. Spaulding should "sign up for sick call." Id. Defendant Gartman stated that if she had seen that Mr. Spaulding was injured and needed immediate medical care, she would have ensured that he received it. Id. In Mr. Spaulding's case, Defendant Gartman understood that the "medical records and x-ray" taken of Mr. Spaulding's finger showed "no evidence of a broken finger." Id.

Defendants also submitted the Declaration of Albert Carl Maier, a medical doctor, who reviewed Mr. Spaulding's medical records. ECF No. 251, Ex. J. Dr. Maier found that Mr. Spaulding was evaluated by medical staff on May 4, 2011, for his complaint of injury to the pinky finger on his right had. Ex. J at ¶3. The physician reviewed his chart and ordered an x-ray, which was taken on May 19, 2011. "Evaluation of the hand showed full range of motion and no indication of injury." Id. Dr. Maier declares that he reviewed the two x-rays, giving "specific attention to the pinky finger and saw no evidence of remote ore recent injury." Id. "The x-ray report stated [Mr.] Spaulding's hand was normal." Id. The medical records show that Mr. Spaulding continued "to complain of pain in his hand although there continued to be no evidence of injury." Id. On September 15, 2011, Mr. Spaulding was again evaluated by a doctor who "noted no deformity to the hand." Id. at ¶4. Dr. Maier states his medical opinion, based on review of the medical records, that Mr. Spaulding's finger was not broken in May 2011. Id. at ¶5. "Had [that] injury occurred, it would have been visible in the x-ray, and there would have been swelling an bruising present." Id.

b. Plaintiff's Evidence12

Mr. Spaulding submitted his own declaration, ECF No. 231 at 2-11, which has been considered. Mr. Spaulding makes clear that Lt. Johnson ordered the special management meal and placement of the magnet and pink sheet on March 18, 2011. ECF No. 231 at 2. Defendant Ford wrote the second disciplinary report for lewd or lascivious exhibition. Id. at 3.

Mr. Spaulding states that he did not commit the disciplinary offenses as charged. ECF No. 231 at 2-3. He said that the management meal was provided without a hearing or preparation of a DC6-218 form, and is "a form of punishment" for violating Rule 33-601.314(1-6). Id. at 2. Despite his arguments to the disciplinary hearing team, consisting of Defendants Bass and Reynolds, he was found guilty as charged. Id. at 3-4.

Mr. Spaulding contends that the Department's "usual practice" for procedural or technical errors in disciplinary reports, or for duplicated charges, the report is "dismissed." Id. at 4. Mr. Spaulding quotes Rule 33-601.307(4)(b) and contends Defendant Howard, "the investigator took it upon himself to have the D.R. rewritten, not the disciplinary team during a hearing." Id. at 6-7. Nevertheless, he was found guilty of the first disciplinary report13 (February 20, 2011 date) written by Defendant Ford, and supported by witness statements of Officer Jennings and Lt. Johnson. Id. at 4. Mr. Spaulding states that the hearing team consisted of Defendant Goodwin and Lt. Johnson, and he was sentenced to 30 days in disciplinary confinement "without giving him credit for the days he" spent in administrative confinement. Id. at 7. He contends he was found "guilty even though there was a clear procedural error" and argues the charge should have been dismissed. Id. Mr. Spaulding points out that Defendants Woodall, Lago, and Adams denied his grievance and appeal. ECF No. 231 at 5.

On March 22, 2011, Defendant Lagos served Mr. Spaulding with a Close Management review recommendation. ECF No. 231 at 6. He upgraded his close management status from CM-III to CM-II. Id. Mr. Spaulding says that the I.C.T., consisting of Defendants Herring, Gartman, and Woodall, approved the recommendation. Id. He also advised that on April 8, 2011, the I.C.T. "revoked [his] visitation privileges for 6 months" because of the Lewd & Lascivious disciplinary report (log # 230-110269).14

Mr. Spaulding provided the health services record which noted he reported to sick call on May 4, 2011, complaining of "right hand" pain after being involved in a fight. ECF No. 231 at 186. The location of the pain was noted as: "5th finger side of hand." Id. The medical record shows the skin around the injury was pink (no hematoma), warm, without numbness or tingling, and he was able to wiggle his fingers. Id. There was "moderate" swelling, but with no deformity present. The medical record indicated Mr. Spaulding had a "possible fracture and/or dislocation" and his chart was to be referred to the doctor for review and x-ray request. Id. The x-ray request was approved by Dr. Elio Madan on May 4, 2011. Id. at 187. The x-ray was taken on May 19, 2011. Id. Mr. Spaulding was given the results on May 25, 2011, which was "normal." Id. at 189; see also ECF No. 231 at 193-194. The radiology report stated there was "no evidence of fracture or dislocation." ECF No. 231 at 193.

Mr. Spaulding returned to sick call on June 17, 2011, again complaining of pain in his right hand. ECF No. 231 at 191. Again, he had no numbness, tingling, or deformity and could wiggle his fingers. Id. No swelling was noted on that date. Id.

Mr. Spaulding submitted an x-ray report which was prepared in September 2014 at Jackson South Community Hospital. ECF No. 231 at 156. The findings were: "normal osseous mineralization and alignment without acute fracture. Mild osteoarthritic changes are seen at the first carpal metacarpal joint otherwise joint spaces are well maintained." Id. The report stated "[t]here is deformity of the tuft of the third finger distal phalanx likely related to old post-traumatic deformity." Id.

ANALYSIS

In the current posture of this case, the claims against Defendants Rucker, Jennings, Johnson, Adams, and Neel have been dismissed. The surviving claims from the fourth amended complaint are (1) due process claims against Defendants Ford, Howard, Landrum, Woodall, Bass, Reynolds, Goodwin, Lago, Gartman; (2) Eighth Amendment claims for "cruel and unusual punishment" against Defendants Ford, Landrum, Gartman, and Woodall; (3) Eighth Amendment claim for deliberate indifference to serious medical needs by Defendant Gartman; and (4) double jeopardy claims against Defendants Bass, Reynolds (ECF No. 41 at 12), Lago, and Gartman (ECF No. 41 at 12-13). Each of the claims are addressed in the order listed.

A. Due Process Claims

The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives "any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV. While prisoners may "claim the protections of the Due Process Clause," Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974),15 due process does not exist in a vacuum. Due process exists to protect a liberty interest. Thus, an inmate is entitled to the due process protection outlined in Wolff only if he can show the deprivation of a "protected liberty interest." In the usual case, the forfeiture of gain time is a protected liberty interest. Mr. Spaulding did not lose any gain time. Therefore, summary judgment is not appropriate for Mr. Spaulding absent a showing that his injury "is within the scope of the Due Process Clause." Kirby v. Siegelman, 195 F.3d 1285, 1290 (11th Cir. 1999) (holding that an inmate who has not been convicted of a sex crime "is entitled to due process before the state declares him to be a sex offender") (citing Bass v. Perrin, 170 F.3d 1312, 1318 (11th Cir. 1999)).

In Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293 (1995), the Supreme Court stated "that there are two circumstances in which a prisoner can be deprived of a liberty interest beyond the deprivation associated with the prisoner's confinement."16 Wallace v. Hamrick, 229 F. App'x 827, 830 (11th Cir. 2007). "First, a liberty interest may arise from the `Due Process Clause of its own face,' which extends procedural safeguards to a prisoner when his liberty is restrained in a way that exceeds the sentence imposed by the court." Wallace, 229 F. App'x at 830 (quoting Sandin). "Secondly, states may create liberty interests by conferring certain benefits to prisoners, the deprivation of which `impose[s] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'" Wallace, 229 F. App'x at 830 (quoting Sandin). As noted above, Mr. Spaulding's sentence has not been altered because he did not lose gain time. Thus, to demonstrate a due process claim under Sandin, it must be shown that Mr. Spaulding suffered an "atypical and significant hardship . . . in relation to the ordinary incidents of prison life.'" Bass, 170 F.3d at 1318 (citing Sandin, 515 U.S. at 484, 115 S.Ct. at 2300). 1.

Management Meal

Mr. Spaulding contends that he was entitled to due process and a hearing before he was placed on the management meal for one day. Although Defendants argue that it is a "management tool" and not punishment, for present purposes it is accepted that the management meal is employed after a prisoner engages in improper behavior. See FLA. ADMIN. CODE R. 33-602.223(3),(4).17 There are procedures in place that should be followed prior to placing an inmate on the management meal. However, even if those procedures were not followed in Mr. Spaulding's case,18 a prisoner does not have a protected liberty interest in receiving a particular type of meal in prison. The Constitution requires meals to be nutritionally adequate, but "prison food need not be `tasty or aesthetically pleasing.'" LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993) (finding inmate's allegations about the use of Nutraloaf did not "rise to the threshold level of a deprivation that satisfies Wilson's objective component.") (quoted in Meddler v. Buss, No. 4:10CV532 SPM/WCS, 2011 WL 7143584, at *4 (N.D. Fla. Dec. 5, 2011), report and recommendation adopted, No. 4:10cv532-SPM/WCS, 2012 WL 360090 (N.D. Fla. Feb. 2, 2012)). Because Mr. Spaulding does not have a protected liberty interest in receiving a particular kind of meal, summary judgment should be granted in favor of the Defendants on his due process claim concerning being served a management meal on one day.

2. Re-written Disciplinary Report

Mr. Spaulding challenges the fact that his first disciplinary report was re-written instead of dismissed. The evidence reveals Mr. Spaulding received a re-written disciplinary report. The report itself noted that it was re-written. The only change was the addition of one sentence stating Mr. Spaulding was in his cell alone. Otherwise, Mr. Spaulding was given (1) advance written notice of the charges, (2) a written statement of the reasons supporting the disciplinary charge, and (3) the opportunity to call witnesses and present evidence. He was provided all the process required under Wolff v. McDonnell and summary judgment should be granted in favor of Defendants.

Furthermore, to the degree Mr. Spaulding also asserts a claim for the denial of due process in his disciplinary hearings, that claim fails. First, he was not deprived of gain time and lacks a protected interest. Second, even if he had a protected interest, he was provided due process under Wolff. The failure to note on a disciplinary report that Mr. Spaulding would be given a management meal is unrelated to the action which formed the basis for the disciplinary charge. It is an irrelevant failure, if a failure at all.

3. Confinement Time

Mr. Spaulding claimed that he was not given credit for time served in administrative confinement. ECF No. 231 at 17. Prison disciplinary proceedings are not the same as criminal sentencing. Prison officials are not required to count "time served" in administrative confinement as part of the number of days imposed as punishment when directing a prisoner's placement in disciplinary confinement. Rule 33-601.308(3) provides for consideration of the time an inmate has served in administrative confinement when determining how many days the inmate should serve in disciplinary confinement. There is no requirement for administrative confinement credit and, thus, there was no violation of Mr. Spaulding's due process rights when he was placed in disciplinary confinement without giving him credit for time spent in administrative confinement. Summary judgment should be granted in favor of the Defendants on this claim.

Moreover, Mr. Spaulding's placement in disciplinary confinement for a total of 90 days was not a violation of his due process rights either. Placement in confinement alone is not sufficient to state a due process claim, see Rodgers v. Singletary, 142 F.3d 1252, 1253 (11th Cir. 1998) (finding that an inmate was not deprived of a constitutionally protected liberty interest when he was placed in administrative confinement as result of an allegedly false disciplinary report), nor is punishment in disciplinary confinement or segregation after a disciplinary hearing. See Sandin, 515 U.S. at 485, 115 S.Ct. at 2301 (noting that "[d]iscipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law."). Such events come within the ordinary incidents of prison life. Furthermore, administrative confinement "for short periods of time does not implicate a liberty interest under the Due Process Clause." Whitsett v. Cannon, 139 F.Supp.3d 1293, 1303 (M.D. Fla. 2015) (citing Sandin, 515 U.S. at 485-87, 115 S.Ct. at 2301-02 (thirty days); Rodgers v. Singletary, 142 F.3d 1252, 1253 (11th Cir. 1998) (two months)). Mr. Spaulding was held in administrative confinement for just a "few days" and is insufficient as a Due Process claim.

Mr. Spaulding came forward with no evidence demonstrating a "major disruption in his environment," and provided no evidence showing that his segregation was a "significant deprivation" from the presumed benefit of being housed in general population. There is no evidence that Mr. Spaulding was held in disciplinary confinement beyond the 90 day sentence imposed, and no evidence that he suffered an "atypical" or "significant hardship." Smith v. Regional Dir. of Fla. Dep't of Corr., 368 Fed.Appx. 9, 13 (11th Cir. 2010) (dismissing prisoner's claims because he failed to allege an atypical and significant hardship) (cited in Whitsett, 139 F. Supp. 3d at 1304). Summary judgment should be granted in favor of the Defendants on this claim as well.

4. Magnet and Pink Sheet

The evidence concerning placement of the magnet and pink sheet on Mr. Spaulding's cell window reveals he was not subjected to any discipline or harm. Mr. Spaulding was not identified to the inmate population as having committed a particular criminal sexual offense such that he was placed in danger. He was not "branded a sex offender" in violation of Kirby v. Siegelman, 195 F.3d 1285, 1291 (11th Cir. 1999) (holding that inmates "have a liberty interest in not being branded a sex offender."). The pink sheet protected female staff from abusive and offensive behavior, but there is no evidence that Mr. Spaulding was subjected to "stigmatizing consequences" which arise from "the labeling of a prison inmate as a sex offender." Kirby, 195 F.3d at 1291 (quoting Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir. 1997). The magnet and pink sheet had nothing to do with outside criminal charges and were only placed on his cell window temporarily when a female officer was on the confinement wing, but is removed when the female officer left the wing. This due process claim is insufficient as well.

5. Classification Status

Mr. Spaulding does not have a protected interest in his classification status. Adamson v. McNeil, No. 3:08cv231-RV/EMT, 2008 WL 5231869 (N.D. Fla. Dec. 12, 2008) (finding no constitutionally protected liberty interest in the change of inmate's classification from CM-III to CM-II). Moreover, Mr. Spaulding does not have a viable claim that he was treated differently than inmate Cross because Mr. Spaulding was not similarly situated to inmate Cross. There is no evidence of unequal or disparate treatment and this claim is also insufficient. Defendants' motion for summary judgment should be granted as to all of Mr. Spaulding's due process claims.

B. Eighth Amendment Claims

Mr. Spaulding asserted two different types of Eighth Amendment claims, one for "cruel and unusual punishment" against Defendants Ford, Landrum, Gartman, and Woodall, and one for deliberate indifference to serious medical needs by Defendant Gartman. The Eighth Amendment19 governs the conditions under which convicted prisoners are confined and the treatment they receive while in prison. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Although the Amendment does not require comfortable prisons, it prohibits inhumane ones. Id. The Eighth Amendment guarantees that prisoners will not be "deprive[d] . . . of the minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981) (quoted in Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004)). "[B]asic human necessities include food, clothing, shelter, sanitation, medical care, and personal safety." Harris v. Thigpen, 941 F.2d 1495, 1511 (11th Cir. 1991) (cited in Collins v. Homestead Corr.l Inst., 452 F.App'x 848, 850-851 (11th Cir. 2011)). "[T]o make out a claim for an unconstitutional condition of confinement, `extreme deprivations' are required. . . ." Thomas v. Bryant 614 F.3d 1288, 1304, 1306-07 (11th Cir. 2010) (concluding that non-spontaneous use of chemical agents on inmates with mental illness violated the Eighth Amendment) (citing Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)). Here, Mr. Spaulding has not submitted any evidence demonstrating that he suffered an "extreme" deprivation. There is no evidence that he was denied clothing, shelter, sanitation, or safety. Mr. Spaulding was not deprived of meals, and service of one management meal is not a constitutional deprivation. Summary judgment should be granted on the Eighth Amendment claim for cruel and unusual punishment.

Mr. Spaulding's remaining Eighth Amendment claim is also not supported. Deliberate indifference to the serious medical needs of sentenced prisoners violates the Eighth Amendment's prohibition of cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L. Ed. 2d 251 (1976). A "`serious' medical need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Hill v. Dekalb Regional Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994), abrogated on other grounds by Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (quoting Laaman v. Helgemoe, 437 F.Supp. 269, 311 (D. N.H. 1977)). Deliberate indifference requires a plaintiff to show that a named defendant unnecessarily and wantonly inflicted pain or harm to a prisoner by depriving him of a basic human need. Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L. Ed. 2d 271 (1991).

Mr. Spaulding has not provided evidence demonstrating either that he had a serious medical need or was denied medical care. Mr. Spaulding went to sick call complaining of pain on the fifth finger or his right hand. Mr. Spaulding was evaluated by a nurse who suspected that his finger was broken. The nurse requested x-rays be approved. The doctor approved the request and x-rays were taken. The x-ray result was "normal." There was "no evidence of fracture or dislocation."

Mr. Spaulding makes much of an x-ray report from September 2014. The finding at that time was "deformity of the tuft of the third finger distal phalanx likely related to old post-traumatic deformity." That injury is not related to Mr. Spaulding's fight in 2011. The third finger is not the fifth finger. Moreover, Mr. Spaulding has not shown that any Defendant was deliberately indifferent to his needs. Summary judgment should be granted on this Eight Amendment claim as well.

C. Double Jeopardy Claim

Mr. Spaulding contends he was subjected to double jeopardy by Defendants Bass and Reynolds. "The Double Jeopardy Clause provides that no `person [shall] be subject for the same offence to be twice put in jeopardy of life or limb.'" Hudson v. United States, 522 U.S. 93, 98, 118 S.Ct. 488, 493, 139 L. Ed. 2d 450 (1997). "The Double Jeopardy Clause protects individuals against three distinct violations: (1) `a second prosecution for the same offense after acquittal'; (2) `a second prosecution for the same offense after conviction'; and (3) `multiple punishments for the same offense.'" United States v. Mayes, 158 F.3d 1215, 1219 (11th Cir. 1998) (noting that "[p]rison officials have no authority to alter the inmates' original criminal sentences" and rejecting a double jeopardy challenge to subsequent criminal prosecution) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989)). It has long been "recognized that the Double Jeopardy Clause does not prohibit the imposition of all additional sanctions that could. . . be described as punishment." Hudson, 522 U.S. at 98-99, 118 S. Ct. at 493 (quoting United States ex rel. Marcus v. Hess, 317 U.S. 537, 549, 63 S.Ct. 379, 387, 87 L.Ed. 443 (1943) (quoting Moore v. Illinois, 14 How. 13, 19, 14 L.Ed. 306 (1852))). The Double Jeopardy Clause does not apply to proceedings that are not "essentially criminal," Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), and the Supreme Court has held that "[p]rison disciplinary proceedings are not part of a criminal prosecution" such that the "full panoply of rights" is applicable. Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

In that light, Mr. Spaulding's double jeopardy claim cannot succeed. The placement of the magnet and pink sheet, change in classification status, and service of the management meal for one day is not punishment for double jeopardy purposes. Frazier v. McNeil, No. 3:09cv340-WS, 2010 WL 893839, at *8 (N.D. Fla. Mar. 8, 2010) (finding that retention in close management was not criminal punishment for double jeopardy purposes) (citing Taylor v. Gomez, 182 F.3d 927 (9th Cir. 1999) (concluding that inmate's double jeopardy argument lacked merit in that the district court correctly reasoned that his custody classification "is not punishment, but rather a method for housing inmates based on their behavior"); Langton v. Berman, 667 F.2d 231, 233, 234 (1st Cir. 1981) (finding prison disciplinary hearing in which prisoner was sentenced to 15 days isolation, loss of all privileges and good time credits, did not constitute double jeopardy due to "the essential differences between a disciplinary hearing and a criminal trial"); Welch v. Epps, 103 F. App'x 828, 829 (5th Cir. 2004) (noting there is decisional authority "which holds that a mere change in custodial status either amounts to an `increase' in the `measure of punishment' for ex post facto purposes" or "qualifies as a second `punishment' for double jeopardy purposes."); Garland v. Marfield, No. 3:08cv261-RV/EMT, 2009 WL 22283 (N.D. Fla. Jan. 2, 2009) (rejecting inmate's claim that his placement on CM-III status violated the Double Jeopardy Clause because he was already punished for the disciplinary infraction by serving time in disciplinary confinement); Butler v. McDonough, No. 2:06CV206-FTM-29SPC, 2007 WL 2071530, at *1 (M.D. Fla. July 17, 2007) (holding that double jeopardy "protections apply to criminal trials, not disciplinary hearings or subsequent inmate classifications utilized by jail officials to maintain safety and security at the jail.") (citation omitted). Summary judgment should be granted in Defendants' favor on this claim as well.

RECOMMENDATION

In light of the foregoing, it is respectfully RECOMMENDED that Defendants' motion for summary judgment, ECF No. 249, be GRANTED as to all claims, and Plaintiff's motion for summary judgment, ECF No. 231, be DENIED.