United States District Court, N.D. Florida, Tallahassee Division
JAMES V. SMITH, JR., Plaintiff,
OFFICER ADAM VANN, SGT. JOSEPH BAILEY, SGT. RONALD M. TADLOCK, and OFFICER COLBY MURPHY, Defendants. v.
THIRD REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE
Two dispositive motions remain pending in this case: a motion
for summary judgment filed by Defendants Vann and Bailey, ECF
No. 88, and a second motion for summary judgment filed by
Defendants Tadlock and Murphy, ECF No. 89. Plaintiff was
advised of his obligation to respond to those motions
pursuant to Local Rule 56.1 and Federal Rule of Civil
Procedure 56. ECF No. 90. Plaintiff filed his response, ECF
No. 99, along with numerous exhibits on May 4, 2017. However,
Plaintiff did not comply with Local Rule 56.1 and he was
required to file an amended response. ECF No. 102. After
filing two motions for clarification, ECF Nos. 103 and 105,
Plaintiff filed his amended response to both summary judgment
motions. ECF No. 108. Defendants were given leave to file a
reply, see ECF No. 109, and they did so on July 11,
2017. ECF No. 110.
amended complaint, ECF No. 8, alleged that on November 1,
2012, he was assaulted by Defendant Vann at Taylor
Correctional Institution's Work Camp. Id. at 8.
Defendant Bailey observed the assault, and told Plaintiff
numerous times to keep his “mouth shut and everything
would be ok.” Id. at 8-9. Plaintiff contacted
his sister about the incident who contacted the Inspector
General's office. Id. at 9-10. On November 2,
2012, he was moved to the Annex and placed in confinement.
Id. at 10. Plaintiff told his story to Inspector
McCray on November 5, 2012, who then informed Plaintiff that
he “could expect to be moved to a new institution
within 2 weeks.” Id.
November 8, 2012, Defendant Murphy was escorting Plaintiff
and also told Plaintiff to keep his mouth shut about
Defendant Vann. ECF No. 8 at 10. On November 27, 2012,
Defendant Murphy advised Plaintiff that if he was
“smart, ” he would drop his complaint against
Defendant Vann. Id.
was moved from confinement to the M-1 dormitory on December
28, 2012. ECF No. 8 at 10. There, he obtained a grievance
form, completed it, and placed it in the “secure lock
box.” Id. On January 10, 2013, Plaintiff was
being escorted to the shower when Defendant Murphy told him
that he had seen the grievance Plaintiff wrote against him.
Id. at 11. Defendant Tadlock told Plaintiff that he
“now” had reason to be “in fear” for
his life. Id. Later that evening, Defendant Tadlock
read Plaintiff's journal aloud and made remarks to
instigate other prisoners to attack Plaintiff. Id.
Defendant Tadlock made numerous other comments to Plaintiff
which could reasonably be taken as threats of violence.
Id. Plaintiff and his cellmate, Mr. Beaton,
orchestrated a physical altercation to appease Defendant
Murphy. Id. at 12. However, Defendant Tadlock
directed Mr. Beaton to continue assaulting Plaintiff before
finally using “pepper spray” to stop the
“fight.” Id. Plaintiff alleged that he
continued to be intimidated until transferred. Id.
His amended complaint was sworn under penalty of perjury.
Id. at 14.
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 affidavits or other
Rule 56 evidence “that there is a genuine issue for
trial” or “an absence of evidence to support the
non-moving 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).
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)).
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 non-moving 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
non-moving 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.”),  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
non-moving 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).
prior motion to dismiss, ECF No. 31, argued that the
complaint should be dismissed because Plaintiff failed to
exhaust administrative remedies. As noted earlier, that
argument was rejected. ECF Nos. 43, 44. It was accepted that
Plaintiff's efforts to access the grievance process were
thwarted and, thus, the grievance process was
“unavailable” to Plaintiff. ECF No. 43. The Order
adopting the Report and Recommendation noted that Defendants
had not carried their burden to show Plaintiff failed to
exhaust administrative remedies. ECF No. 44.
proceeded through discovery, Defendants now seek to more
fully support their affirmative defense and show that
Plaintiff failed to exhaust administrative remedies. ECF Nos.
88, 89. Defendants Vann and Bailey argue that Plaintiff
could, and should, have exhausted administrative remedies by
January 20, 2013. ECF No. 88 at 13. Those Defendants assert,
again, that there is no record of Plaintiff having filed
grievances while at Taylor Correctional Institution during
that period of time. Id. (citing ECF No. 31-2 at
¶6, the affidavit of Elaine Hines).
Tadlock and Murphy also argue that it was “temporally
impossible for Plaintiff to have properly exhausted his
administrative remedies regarding his” claims against
them. ECF No. 89 at 8. Defendants point to Plaintiff's
deposition testimony in which he said that his grievances
were “filed within the time frame between December 28th
an January 10th.” ECF No. 89 at 8 (citing ECF No. 88-10
at 4-5 (Ex. I). They argue that Plaintiff's own
statements demonstrate “he did not properly exhaust his
administrative remedies because his formal grievance would
have been premature and in non-compliance with the Florida
Administrative Code.” ECF No. 88 at 14-15; see
also ECF No. 89 at 8-9. Defendants contend, first, that
there “is no record of such filings, ” and
“even if Plaintiff did file the grievances he claims he
filed, it is still temporally impossible for Plaintiff to
have exhausted his administrative remedies regarding the
alleged” incidents with Defendants Tadlock and Murphy
as they “occurred after the time
period that Plaintiff explicitly describes as being when he
filed the grievances.” ECF No. 89 at 8-9.
also contend that Plaintiff's assertion in his appeal to
the Secretary that he was prevented from participating in the
grievance process is untrue and untimely. ECF No. 88 at 15.
Defendants point out that even if Plaintiff's statements
are correct and the grievance process was unavailable to him
as he has maintained, Plaintiff was transferred away from
Taylor Correctional Institution much sooner and could have
presented his claims. Id. at 15-16.
response to those arguments, Plaintiff asserts that this
issue has already been addressed and he contends he followed
“proper procedure.” ECF No. 108 at 1. Plaintiff
said that prison officials are to blame if grievances were
not “forwarded to the correct location.”
Id. He asserts that the grievance process was
unavailable to him to grieve about Defendants Tadlock and
Murphy because he was in confinement under their control.
Id. at 2. He says that his prior requests for
grievance forms were ignored. Id. He also suggests
that “had the requested forms been provided, the
likelihood of completed grievances forms making it to the
required destination was remote at best.” Id.
He asserts “that as soon as he was able he filed an
appeal of the previous grievances including additional
details concerning Defendants Tadlock and Murphy.”
Id. (citing to Ex. A [ECF No. 108 at 14-17]).
Attached to his response is a copy of the appeal he filed
with the Secretary's Office on May 3, 2013. ECF No. 108
at 14. That appeal was “returned without action”
because the grievance log revealed he “never filed a
formal grievance on” the issues raised while at Taylor
Correctional Institution and he was “well beyond the
time frame to file a grievance.” Id. at 15.
contends that he attempted “in every way that was
available to him, ” to advise prison officials of his
problems. ECF No. 108 at 2. He points out that he contacted
his sister and requested that she speak with “officials
concerning his treatment.” Id. Plaintiff says
that she did so, and spoke with officials at the institution
as well as the Inspector General's office and the
Regional Director. Id. He questions “[w]hat
more could have been done to comply” and contends that
he met the exhaustion requirement. Id. He ...