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Nashaddai v. Johnson

United States District Court, N.D. Florida, Tallahassee Division

February 7, 2018

NYDEED NASHADDAI, Plaintiff,
v.
A.L. JOHNSON, RONALD N. MOCK, TERRY L. WHITLOCK, and other UNKNOWN OFFICERS, Defendants.

          SECOND REPORT AND RECOMMENDATION [1]

          CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.

         After 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.

         Procedural Issue

         Service 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.

         On 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 Defendants.

         Allegations of the Fourth Amendment Complaint

         The 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.

         A short 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. Id.

         The 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. Id.

         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 force.” Id.

         Plaintiff 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. Id.

         Plaintiff 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.

         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 show[2] though ...


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