United States District Court, N.D. Florida, Tallahassee Division
KRISTOFER A. STANSEL, Plaintiff,
CAPTAIN J. SIKES, OFFICER ROGERS, SERGEANT DOUGLAS M. SEWELL, and OFFICER FLANAGAN,  Defendants.
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE
is Defendants' motion for summary judgment. ECF No. 80.
The pro se Plaintiff was advised of his obligation to respond
to the motion, ECF No. 81, and his response was timely filed.
ECF No. 83. The motion is ready for a ruling.
Allegations, ECF No. 49
brought this case pursuant to 42 U.S.C. § 1983, alleging
that Defendant Sewell used unnecessary force when he sprayed
Plaintiff with chemical agents on June 23, 2013. Plaintiff
alleges that Defendant Sikes authorized the use of force, and
Defendant Flanagan filmed the use of force, knowing that
Plaintiff was not being disruptive. ECF No. 49. Plaintiff
also alleges that Defendant Rogers took no action to protect
him from the unjustified use of force. ECF No. 49.
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).
Rule 56(e) Evidence
23, 2013, Plaintiff was housed in the Y-dormitory at Liberty
Correctional Institution, which is a secure housing and
confinement unit. ECF No. 80, Ex. A at 1 (ECF No. 80-1,
Rogers Aff.). Defendant Rogers was a correctional officer who
worked as the Y-dormitory housing unit officer on June 23,
2013. ECF No. 80-1 at 1. At approximately 8:30 a.m.,
Defendant Rogers observed Plaintiff “yelling from his
cell.” Id. at 2. He “attempted to
counsel with” Plaintiff, but Plaintiff responded by
cursing at Defendant Rogers. Id. Defendant Rogers
ordered Plaintiff to stop, but Plaintiff would not comply.
Id. Defendant Rogers notified Defendant Sewell of
the situation and left to attend to his other duties.
Sewell was assigned as the Y-dormitory housing unit sergeant
at Liberty C.I., a supervisory position. ECF No. 80, Ex. B at
1 (ECF No. 80-2, Sewell Aff.). Defendant Sewell declares that
after Defendant Rogers reported Plaintiff's behavior to
him, he went to Plaintiff's cell at approximately 8:40
a.m. “and attempted to counsel with [Plaintiff] in an
attempt to calm him down.” Id. at 2.
Plaintiff, however, “continued yelling down the wing
and yelling obscenities, trying to get the attention of other
inmates.” Id. After unsuccessfully ordering
Plaintiff to stop his disruptive behavior several times,
Defendant Sewell “notified the shift supervisor,
Captain James Sikes, ” of Plaintiff's behavior.
Sikes arrived in the Y-dormitory at approximately 8:50 a.m.,
and observed Plaintiff “cursing staff and
yelling.” ECF No. 80, Ex. C at 1 (ECF No. 80-3, Sikes
Aff.). Defendant Sikes also ordered Plaintiff to stop his
behavior, but he did not comply. Id. Pursuant to the
procedures listed in Florida Administrative Code Rule
33-602.210, Defendant Sikes verified from medical staff that
Plaintiff “did not have a medical condition that would
be exacerbated by the use of chemical agents.”
Id. at 2. Defendant Sikes also contacted the Duty
Warden to discuss Plaintiff's behavior and receive
authorization “to use Oleoresin Capsicum (“OC
[Spray]”). Id. Defendant Sikes “had
Officer Heath Flanagan initiate [a] hand-held camera”
to record the use of force. Id.
camera recording includes introductory statements of the
events by Defendants Rodgers, Sewell, and Sikes. ECF No. 80-3
at 2; see also ECF No. 80, Ex. E. Defendant Sikes,
accompanied by Defendant Flanagan, proceeded to
Plaintiff's cell and issued a “final order and
warning” that chemical agents would be administered if
he did not cease his behavior. ECF No. 80-3 at 2. Plaintiff
was “not acting disorderly or disruptive at that time,
” so the video recording was “halted at about
9:20 am.” Id.
approximately 9:45 a.m., Defendant Rogers again observed
Plaintiff “yelling and cursing staff, ” and being
disruptive. ECF No. 80-1 at 2. Again, Defendant Rogers
unsuccessfully attempted to counsel with Plaintiff.
Sikes was advised at approximately 10:00 a.m. that Plaintiff
had resumed his disruptive behavior. ECF No. 80-3 at 2.
Defendant Sikes retrieved a canister of OC and directed
Defendant Sewell to administer three one-second bursts”
of the chemical agents. Id. Because Plaintiff
continued his behavior, a second application of OC was
administered approximately fifteen minutes later.
Id. Plaintiff complied with orders to cease at about
10:30 a.m. Id.
Sikes declares that the “only reason chemical agents
were used was to quell [Plaintiff's] disruptive
behavior.” ECF No. 80-3 at 3. “Only the minimum
amount of force was used to gain control of Plaintiff's
in-cell disturbance to calm him down.” Id.
Such conduct can “potentially escalate from one inmate
to countless inmates housed in the dormitory, so disruptive
behavior cannot be allowed to continue.” Id.
Defendant Sikes declares that Plaintiff's allegations as
presented in the complaint “are absolutely
untrue.” Id. at 1.
Flanagan also states in his declaration that Plaintiff's
allegations against him “are absolutely untrue.”
ECF No. 80, Ex. D (ECF No. 80-4, Flanagan Aff.). Defendant
Flanagan advises that he recorded the “lead-in
statement” and “final order” for Plaintiff
to stop his behavior. Id. at 1. Plaintiff complied
and the “recording was halted.” Defendant
Flanagan then “left the area, and was not present at or