United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY, CHIEF UNITED STATES MAGISTRATE JUDGE
Howard Kyle Summerall (“Summerall”), an inmate of
the Florida Department of Corrections (“FDOC”),
proceeds pro se and in forma pauperis in this action brought
under 42 U.S.C. § 1983. Presently before the court is
Defendants' motion for summary judgment, with supporting
evidentiary materials (ECF No. 25). Summerall has not filed a
response to the motion.
case was referred to the undersigned for the issuance of all
preliminary orders and any recommendations to the district
court regarding dispositive matters. See N. D. Fla.
Loc. R. 72.2(C); see also 28 U.S.C. §
636(b)(1)(B)(C); Fed.R.Civ.P. 72(b). After careful
consideration of all issues raised by the parties, it is the
opinion of the undersigned that Defendants' motion for
summary judgment should be granted.
BACKGROUND AND INTRODUCTION
times relevant to this action, Summerall was incarcerated at
Santa Rosa Correctional Institution (see Second
Amended Complaint, ECF No. 8 at 5-7).Defendants Sergeant Quinn,
Officer Gent, and Sergeant Pugh were members of the security
staff at Santa Rosa C.I. (see id.). Summerall claims
Defendants used excessive force while extracting him from his
cell on April 13, 2016, in violation of the Eighth Amendment
and FDOC policy (id. at 5-9). Summerall claims he
suffered a wound to his hand and humiliation as a result of
Defendants' conduct (see Id. at 7). Summerall
seek nominal, compensatory, and punitive damages
(id. at 8).
contend Summerall's allegations fail to state a plausible
Eighth Amendment violation, and for this reason, they are
entitled to qualified immunity (ECF No. 25 at 9-15). They
also contend Summerall's claims that they violated FDOC
policy are not actionable under § 1983 (id. at
16). Defendants contend they are entitled to Eleventh
Amendment immunity to the extent Summerall sues them in their
official capacities (id. at 15-16). And they contend
Summerall is precluded from recovering compensatory and
punitive damages against them in their individual capacities,
pursuant to 42 U.S.C. § 1997e(e) (id. at 5-9).
order to prevail on a motion for summary judgment, the moving
party must show that the nonmoving party has no evidence to
support his or her case or present affirmative evidence that
the nonmoving party will be unable to prove his or her case
at trial. See Celotex Corp. v. Catrett, 477 U.S.
317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the
moving party successfully negates an essential element of the
nonmoving party's case, the burden shifts to the
nonmoving party 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, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A
dispute is “genuine” if the “evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” Id., 477 U.S. at 248. A fact
is “material” if it “might affect the
outcome of the suit under the governing law.”
Id. The nonmoving party must show more than the
existence of a “metaphysical doubt” regarding the
material facts. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348,
89 L.Ed.2d 538 (1986). Speculation or conjecture from a party
cannot create a genuine issue of material fact. See
Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181
(11th Cir. 2005). “A mere scintilla of evidence in
support of the nonmoving party will not suffice to overcome a
motion for summary judgment.” Young v. City of Palm
Bay, Fla., 358 F.3d 859, 860 (11th Cir. 2004); see
also Celotex Corp., 477 U.S. at 324. The nonmoving party
must either point to evidence in the record or present
additional evidence sufficient to withstand a directed
verdict motion at trial based on the alleged evidentiary
deficiency. See Celotex Corp., supra;
Owen v. Wille, 117 F.3d 1235, 1236 (11th Cir. 1997)
(Rule 56 requires the nonmoving party to go beyond the
pleadings and by his or her own affidavits, or by the
depositions, documents, affidavits or declarations,
admissions, interrogatory answers or other materials on file
designate specific facts showing that there is a genuine
issue for trial); Hammer v. Slater, 20 F.3d 1137
(11th Cir. 1994).
regard to the factual positions asserted by the parties, the
court must apply the standard set forth in Rule 56(c) of the
Federal Rules of Civil Procedure, which provides in relevant
(1) Supporting Factual Positions. A party
asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials
in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact. . . . .
(4) Affidavits or Declarations. An affidavit
or declaration used to support or oppose a motion must be
made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.
Fed. R. Civ. P. 56(c) (2010).
asserted in hearsay statements which are not subject to a
hearsay exception, and thus would not be admissible in
evidence, are insufficient to show that a fact is genuinely
disputed. “The most obvious way that hearsay testimony
can be reduced to admissible form is to have the hearsay
declarant testify directly to the matter at trial.”
Jones v. UPS Ground Freight, 683 F.3d 1283, 1294
(11th Cir. 2012) (citing Pritchard v. S. Co. Servs.,
92 F.3d 1130, 1135 (11th Cir. 1996)). If a fact cannot be
presented in a form that would be admissible in evidence, it
cannot be used for purposes of summary judgment. See
Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999);
see Fed. R. Civ. P. 56(c).
party fails to properly support an assertion of fact or fails
to properly address another party's assertion of fact as
required by Rule 56(c), the court will consider the fact
undisputed for purposes of the motion for summary judgment,
or grant summary judgment if the moving party's motion
and supporting materials-including the facts considered
undisputed-show that the moving party is entitled to it.
See Fed. R. Civ. P. 56(e)(2, 3) (2010).
presented by the nonmoving party in opposition to the motion
for summary judgment, and all reasonable factual inferences
arising from it, must be viewed in the light most favorable
to him or her. See Adickes v. S. H. Kress & Co.,
398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970);
Jones v. Cannon, 174 F.3d 1271, 1282 (11th Cir.
1999). Nonetheless, the nonmoving party still bears the
burden of coming forward with sufficient evidence of every
element that he or she must prove. See Celotex
Corp., 477 U.S. at 317. A motion for summary judgment
should be granted if “the movant shows that there is no
genuine dispute as to any material fact and that the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); Celotex Corp., 477 U.S. at 322.
defense of qualified immunity shields government officials
performing discretionary acts “from liability for civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 ...