United States District Court, N.D. Florida, Tallahassee Division
SECOND REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.
the motion to dismiss filed by Defendant Sergeant Ronald N.
Mock, ECF No. 62, was granted, see ECF Nos. 71-72,
this case continued against Defendant Mock in his individual
capacity only, and limited to nominal damages only. The
parties were provided an opportunity to conduct discovery,
ECF No. 74, and at the conclusion of discovery, Defendant
Mock filed a motion for summary judgment. ECF No. 82. The pro
se Plaintiff was directed to respond to that motion, ECF No.
85, and Plaintiff was provided several extensions of time in
which to comply. ECF Nos. 87, 89, 91, and 98. Plaintiff filed
a response, ECF No. 99, and statement of disputed factual
issues, ECF No. 100, and Defendant Mock filed a reply, ECF
No. 101. The summary judgment motion is ready for a ruling.
of process was only carried out on Defendant Mock.
See ECF No. 70. Plaintiff was advised “that
after issuance of an Initial Scheduling Order, ” he
could “use the tools of discovery to seek to locate
Defendants Johnson and Whitlock.” ECF No. 70 at 2.
Plaintiff had also been advised that he must use discovery to
identify the “unknown Defendants listed in the
complaint.” ECF No. 44 at 2. He was informed that it
was his responsibility to file a motion requesting service be
carried out on those Defendants, once identified and located.
ECF Nos. 44, 59, 63, 70, and 74.
April 28, 2017, Plaintiff was required to show good cause no
later than May 23, 2017, as to why those claims should not be
dismissed. ECF No. 77 at 2. Plaintiff did not respond to that
Order, and his request for a continuance as to his claims
against those Defendants as presented within his response to
the summary judgment motion, see ECF No. 99 at 2,
comes too late. Because no less than six Orders advised
Plaintiff of his obligation to prosecute his claims against
those Defendants and he failed to do so, the fourth amended
complaint should now be dismissed as to Defendants Johnson,
Whitlock, and all other unknown correctional officer
of the Fourth Amendment Complaint
events at issue took place in the summer of 2011 while
Plaintiff was housed in the disciplinary confinement unit at
Franklin Correctional Institution. ECF No. 41 at 7. On June
26, 2011, Officers Johnson and Whitlock allegedly began
harassing Plaintiff. Id. at 9. When Sergeant Mock
came to Plaintiff's cell a few minutes later and asked
him what the problem was, Plaintiff said that the officers
were harassing him. Id. Sergeant Mock told Plaintiff
to “just sit down on [his] bunk and calm down, ”
and he walked away. Id. at 9-10.
time later, Captain Johnson threatened Plaintiff with
chemical agents by Captain Johnson if hd did not “cease
[his] disruptive behavior.” Id. at 10.
Plaintiff said he had done nothing wrong, but reported that
he was “hearing voices inside [his] head” and
said people were “plotting and trying to kill”
him. Id. Plaintiff requested help and declared a
psychological emergency, but he Captain Johnson ignored him.
Id. Approximately ten minutes later, Captain
Johnson, Officer Whitlock and an unknown correctional officer
came to Plaintiff's cell and sprayed him with chemical
agents. Id. Plaintiff states that “at no
time” before or after that use of force was he being
disruptive, disorderly, or kicking on the cell door.
Id. Less than two minutes later, Captain Johnson,
Officer Whitlock, and the unknown officer returned to
Plaintiff's cell and again sprayed him with chemical
agents. Id. A short time later Plaintiff was
escorted to a shower and to be examined by a nurse.
next day, Captain Johnson and an unknown correctional officer
came to Plaintiff's cell and asked if Plaintiff if he was
going to cause any more problems. ECF No. 41 at 11. Plaintiff
alleges that he said “no” because he was
terrified, but he also asked if he could have his clothes
back and a mattress. Id. Captain Johnson told
Plaintiff he was not entitled to those privileges and
threatened to use more tools from his “tool box”
if he heard “a word out of” Plaintiff.
was kept on property restriction for two days, and on June
30, 2011, he was served with two disciplinary reports.
Id. at 11. One report was issued by Officer Whitlock
for disobeying an order and the second report was issued by
Defendant Mock for participating in a disturbance.
Id. Plaintiff contends that both disciplinary
reports were issued “to cover up the excessive
did not make any statements to challenge the disciplinary
reports and did not attend any hearings. Id. at 12.
He alleges that he told the investigating officer that the
officers had falsified the disciplinary reports and he was
scared for his life. Id. Plaintiff does not allege,
however, that he requested protective custody. Plaintiff was
directed to “sign some documents, ” which he did,
and the officer left his cell. Id. Plaintiff was
“found guilty” of the disciplinary reports as
charged in absentia, and he was sentenced to 30 days in
disciplinary confinement, but did not lose gain time.
Id. Plaintiff's appeals were denied.
alleges that the Defendants violated his “due process
rights” to a “fair and impartial disciplinary
hearing” and that his Eighth Amendment rights were
violated “by stripping Plaintiff of clothes, property
and basic living necessity [sic], and then spraying Plaintiff
with chemical agent[s] repeatedly for no cause.”
Id. at 13. As relief, Plaintiff seeks a declaratory
judgment, an injunction to expunge the disciplinary reports,
compensatory and punitive damages, and costs for this
litigation. Id. at 13-14. His request for
compensatory and punitive damages have already been dismissed
pursuant to 42 U.S.C. § 1997d(e), and his request for
injunctive and declaratory relief were dismissed as moot
because he is no longer at Franklin Correctional Institution.
See ECF Nos. 71-72. The surviving claim against
Defendant Mock proceeds against him in his individual
capacity only for nominal damages. Id.
standards governing a motion for summary judgment
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 show though ...