United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD, UNITED STATES DISTRICT JUDGE.
Adel Zeitoun, an inmate of the Florida penal system,
initiated this action on April 14, 2014, by filing a Civil
Rights Complaint (Doc. 1) pursuant to 42 U.S.C. § 1983.
He filed an Amended Complaint (Doc. 6) on May 19, 2014; a
Second Amended Complaint (Doc. 18) on June 23, 2015; a Third
Amended Complaint (Doc. 26) on July 14, 2016; and a Fourth
Amended Complaint (FAC; Doc. 30) on August 29, 2016. In the
FAC, Zeitoun names the following Defendants: (1) Warden Brian
Riedl; (2) John Doe officers 1-12; (3) John Doe lieutenants 1
and 2; (4) Corizon Health Care (Corizon); (5) John Doe
dentist; (6) John Doe doctor; and (7) Jane Doe officer.
Zeitoun asserts that the Defendants violated his federal
constitutional rights when they used excessive force against
him and denied him proper medical care. As relief, he
requests compensatory and punitive damages. He also seeks
declaratory and injunctive relief.
matter is before the Court on Defendant Riedl's Motion
for Summary Judgment (Motion; Doc. 51), filed August 1, 2017.
In the Motion, Defendant Riedl asserts that the Court should
grant summary judgment in his favor because: (1) Zeitoun
cannot show that Riedl violated the Eighth Amendment, and (2)
Riedl is entitled to qualified immunity. See Motion
at 1, 7-12. In support of the Motion, Riedl filed portions of
Zeitoun's deposition. See Motion, Exhibit A
(Doc. 51-1), Deposition of Adel Zeitoun (Def. Ex. A), dated
June 12, 2017.
Court advised Zeitoun of the provisions of Federal Rule of
Civil Procedure 56, notified him that the granting of a
motion to dismiss or a motion for summary judgment would
represent a final adjudication of this case which may
foreclose subsequent litigation on the matter, and gave him
an opportunity to respond to the Motion. See Summary
Judgment Notice (Doc. 52); Order of Special Appointment;
Directing Service of Process Upon Corizon Health and Warden
Brian Riedl; Notice to Plaintiff (Doc. 31) at 4-6, ¶ 13.
Over thirty days have passed since the filing of
Defendant's Motion, and Plaintiff has failed to respond.
Accordingly, Defendant's Motion is ripe for judicial
verified FAC,  Zeitoun asserts that: (1) on November 8,
2012, John Doe officers 1, 2, 3, and 4 made derogatory
remarks (relating to the sexual offenses for which he is
serving a term of life imprisonment); (2) on November 8th,
John Doe officers 5, 6, and 7 assaulted Zeitoun; (3) on
November 9th, John Doe officers 8, 9, and 10 assaulted
Zeitoun; (4) John Doe lieutenants 1 and 2 were aware of
inmate abuse at the Reception and Medical Center (RMC) and
the propensity for abusiveness towards inmates by John Doe
officers 3-10, but failed to stop the alleged mistreatment;
(5) John Doe dentist denied Zeitoun treatment for his
bleeding mouth and cracked tooth after the alleged assaults;
(6) John Doe doctor denied Zeitoun medical treatment for his
injuries, and called two officers to assault Zeitoun, but a
captain promptly arrived to place Zeitoun in protective
custody; (7) John Doe officer 11 assaulted Zeitoun on
November 13th, and later told inmate Croft that he would give
him extra food if Croft would beat up Zeitoun, and Croft
assaulted Zeitoun on November 14th; and (8) John Doe officer
12 and Jane Doe officer failed to give Zeitoun notice of
disciplinary charges against him prior to a hearing on the
charges. As to Riedl, Zeitoun states that Riedl was aware of
the pervasiveness of inmate abuse at RMC, and the propensity
for abusiveness towards inmates by John Doe officers 3-10,
but failed to implement a policy to stop the assaults.
See FAC at 6-7, ¶¶ 44-48; 9, ¶¶
81-83; 15, ¶¶ 153-54; 16, ¶¶ 157-58.
Summary Judgment Standard
Eleventh Circuit set forth the summary judgment standard.
Summary judgment is proper when "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). The
substantive law controls which facts are material and which
are irrelevant. Raney v. Vinson Guard Service, Inc.,
120 F.3d 1192, 1196 (11th Cir. 1997). Typically, the
nonmoving party may not rest upon only the allegations of his
pleadings, but must set forth specific facts showing there is
a genuine issue for trial. Eberhardt v. Waters, 901
F.2d 1578, 1580 (11th Cir. 1990). A pro se
plaintiff's complaint, however, if verified under 28
U.S.C. § 1746, is equivalent to an affidavit, and thus
may be viewed as evidence. See Murrell v. Bennett,
615 F.2d 306, 310 n.5 (5th Cir. 1980). Nevertheless,
"[a]n affidavit or declaration used to support or oppose
a motion must be made on personal knowledge."
Fed.R.Civ.P. 56(c)(4). "[A]ffidavits based, in part,
upon information and belief, rather than personal knowledge,
are insufficient to withstand a motion for summary
judgment." Ellis v. England, 432 F.3d 1321,
1327 (11th Cir. 2005).
As we've emphasized, "[w]hen the moving party has
carried its burden under Rule 56, its opponent must do more
than simply show that there is some metaphysical doubt as to
the material facts ... Where the record taken as a whole
could not lead a rational trier of fact to find for the
non-moving party, there is no 'genuine issue for
trial.'" Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986). "[T]he 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,
247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Unsupported,
conclusory allegations that a plaintiff suffered a
constitutionally cognizant injury are insufficient to
withstand a motion for summary judgment. See Bennett v.
Parker, 898 F.2d 1530, 1532-34 (11th Cir. 1990)
(discounting inmate's claim as a conclusory allegation of
serious injury that was unsupported by any physical evidence,
medical records, or the corroborating testimony of
witnesses). Moreover, "[w]hen opposing parties tell two
different stories, one of which is blatantly contradicted by
the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment." Scott
v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167
L.Ed.2d 686 (2007).
Howard v. Memnon, 572 Fed.Appx. 692, 694-95 (11th
Cir. 2014) (per curiam) (footnote omitted); Hinkle v.
Midland Credit Mgmt., Inc., 827 F.3d 1295, 1300 (11th
summary judgment stage, the Court assumes all facts in the
light most favorable to Zeitoun, as the non-moving party, and
draws all inferences in his favor. See McKinney v.
Sheriff, 520 Fed.Appx. 903, 905 (11th Cir. 2013) (per
curiam). "[T]he dispute about a material fact is genuine
. . . if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party."
Hinkle, 827 F.3d at 1300 (internal quotations and
citation omitted). Summary judgment should be granted
"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 (1986). Thus, summary
judgment is appropriate only when, under Zeitoun's
version of the facts, "there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law." Felio v. Hyatt, 639 Fed.Appx.
604, 606 (11th Cir. 2016) (per curiam) (internal quotations
and citation omitted). Therefore, summary judgment would be
properly entered in favor of Defendant Riedl where no genuine
issue of material fact exists as to whether Zeitoun's
federal constitutional rights were violated.