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Whittaker v. Tucker

United States District Court, M.D. Florida, Jacksonville Division

July 10, 2019

BARBARA WHITTAKER, Personal Representative and Administrator of the Estate of George Michael Jenkins, Plaintiff,
KENNETH S. TUCKER, et al., Defendants.



         I. Status

         Plaintiff Barbara Whittaker, in her capacity as personal representative of her deceased brother's estate, is proceeding with the assistance of court-appointed counsel on a Second Amended Complaint (Doc. 39; Complaint) under 42 U.S.C. § 1983. In the Complaint, Plaintiff alleges Defendants violated the decedent George Michael Jenkins' constitutional right to be free from cruel and unusual punishment when he was an inmate of the Florida Department of Corrections (FDOC).[1] See Complaint at 9, 13. Before the Court is Defendants Corbin, Humphrey, Rogers, and Tucker's Motion for Summary Judgment (Doc. 106; Motion).[2] Plaintiff's counsel responded to the Motion (Doc. 109; Motion Response). As such, the Motion is ripe for this Court's review.

         Before addressing the merits of the Motion, the Court first addresses Defendants' Objection to Plaintiff's Reliance on Inadmissible Evidence (Doc. 115; Objection). Defendants object to the Court's consideration of Jenkins' affidavit (Doc. 1-1; Jenkins Aff.) and Jenkins' prison grievances (Docs. 109-6, 109-7, 109-8), each of which Plaintiff relies upon to defeat summary judgment. Objection at 2-3. Citing Rule 56(c), Defendants argue that because Jenkins is deceased, the facts contained in his affidavit and grievances are not capable of being “presented in a form that would be admissible in evidence.” See Fed.R.Civ.P. 56(c)(2). Defendants contend Jenkins' affidavit and grievances constitute inadmissible hearsay and no hearsay exception applies. Objection at 3-4.

         In response, Plaintiff maintains the facts contained in the documents are capable of being reduced to admissible evidence for trial (Doc. 116; Objection Response). Plaintiff asserts the facts contained in Jenkins' affidavit are capable of being reduced to admissible evidence under the “excited utterance” exception. Objection Response at 3. As to the grievance documents, Plaintiff asserts the “records” exception to the hearsay rule applies. Id.

         A party opposing summary judgment may rely upon affidavits or sworn pleadings. Fed.R.Civ.P. 56(c)(4). However, such documents must “set out facts that would be admissible in evidence, and [the opponent must] show that the affiant or declarant is competent to testify on the matters stated.” Id. Because Jenkins is unavailable to testify on the matters stated in his affidavit and grievances, his out-of-court statements, to the extent offered to “prove the truth of the matter asserted, ” constitute inadmissible hearsay. See Fed.R.Evid. 801 (defining “hearsay”).

         In opposing summary judgment, Plaintiff offers the facts in Jenkins' affidavit to demonstrate he was sexually assaulted by Defendants Corbin, Humphrey, and Rogers when they engaged Jenkins in a spontaneous use of force on November 11, 2011, at Suwannee Correctional Institution (SCI). See Motion Response at 13. In his affidavit, which Jenkins filed in support of his original, sworn complaint (Doc. 1; Original Complaint), Jenkins avers the following:

I was removed from my prison infirmary cell, stripped of all clothing and upon being placed back in my infirmary cell [I] was manhandled and placed face down[.] [I] saw [Defendant] Humphrey with what appeared to be a broken broomstick. I was choked and had an object placed over my head, [I] was sexually assaulted and the object that was shoved up my rectum caused an immediate - pre mature [sic] movement of the bowels.

Jenkins Aff. at 2; see also Original Complaint at 4.

         To overcome summary judgment, Plaintiff offers no evidence of the alleged sexual assault other than the allegations contained in Jenkins' affidavit and his sworn complaint. See Motion Response. There were no witnesses to the use of force incident other than corrections officers, including the named Defendants, and neither party offers video evidence.[3] As such, the affidavit is offered for the truth of the matter asserted and therefore constitutes inadmissible hearsay unless a hearsay exception applies under the Federal Rules of Evidence.

         Plaintiff contends the excited utterance exception applies. See Objection Response at 3 (citing Fed.R.Evid. 803(2)). Plaintiff testified at her deposition that after Jenkins was released from prison, she and Jenkins lived together for a couple of weeks (Doc. 109-10; Plaintiff Dep.). Plaintiff testified Jenkins was upset one day, and he referenced someone having tried to kill him in prison:

[O]ne morning I heard [Jenkins] very upset, he was just ranting and raving. . . . And he was saying - he was reading - he had read something. And he just said, “These mother fu***ers. These mother fu***ers they all - they tried to kill me. These mother fu***ers in prison tried to kill me.” And so I said to him, “Sometimes you have to - in order to move on with your life, you have to forgive and forget.” And he just really kind of exploded. “What you mean forgive and forget?” He said, “These mother fu***ers almost beat me to death and they run all kind of shit up my ass and you want me to forgive and forget?” And with that I just stopped and said, “Okay. I have to go to work.” And I never asked any questions.
So from that point on if I ever saw him get upset or anything, saw him upset, I would just make myself scarce. I would - I wouldn't be around because I didn't want to hear it. I didn't ask for any details. I didn't want to hear the details.

Plaintiff Dep. at 15-16.[4]

         Under the Rules of Evidence, an excited utterance is “[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.” Fed.R.Evid. 803(2). In determining whether a declarant speaks while under the stress of the event, the length of time between the event and the utterance is relevant. See United States v. Belfast, 611 F.3d 783, 817 (11th Cir. 2010) (recognizing the excited utterance need not be made contemporaneously to the startling event but, in the totality of the circumstances, the declarant must have been speaking while under the stress the event caused). See also United States v. Carlisle, 173 Fed.Appx. 796, 801 (11th Cir. 2006) (“An out-of-court statement made at least fifteen minutes after the event it describes is not admissible [as a hearsay exception] unless the declarant was still in a state of excitement resulting from the event.”) (quoting United States v. Cain, 587 F.2d 678, 681 (5th Cir. 1979) (internal quotation marks omitted; alteration in original)).

         Here, the alleged sexual assault occurred on November 11, 2011. Complaint at 3. Taking as true the sexual assault occurred as Jenkins describes it in his affidavit, the encounter constitutes a “startling event.” However, Jenkins' statement to Plaintiff was made at least three years after the startling event occurred; according to the FDOC website, Jenkins was released from prison on February 17, 2015.[5] Three years later, Jenkins cannot be said to have been under the stress of the excitement of the incident. Under these facts, Jenkins' statement to Plaintiff, made after his release from FDOC custody and at least three years after the “startling event” does not constitute an “excited utterance.” Accordingly, the Court finds the excited utterance exception is inapplicable.[6]

         Plaintiff offers no other basis upon which the facts contained in Jenkins' affidavit or his sworn complaint may be reduced to admissible form. As such, the Court sustains Defendants' Objection to the extent Jenkins' affidavit and sworn complaint constitute inadmissible hearsay, the facts of which Plaintiff fails to demonstrate can “be presented in a form that would be admissible in evidence.” See Fed.R.Civ.P. 56(c)(2). In ruling on Defendants' Motion for Summary Judgment, therefore, the Court will not consider the allegations in Jenkins' affidavit or his sworn complaint. See McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir. 1996) (holding inadmissible hearsay may not be used to defeat summary judgment if the hearsay evidence “will not be available in admissible form at trial”).

         With respect to the grievance documents (Docs. 109-6, 109-7, 109-8), the Court finds Plaintiff relies upon those not to prove the truth of the matter asserted but to demonstrate Jenkins submitted grievances to the Warden of his correctional facility. Accordingly, the Court overrules Defendants' Objection to the extent they object to the Court's consideration of the grievance documents Plaintiff submits in opposition to the Motion for Summary Judgment.[7]

         II. Summary Judgment Standard

         Under Rule 56, “[t]he 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). The record to be considered on a motion for summary judgment may include “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Rule 56(c)(1)(A). An issue is genuine when the evidence is such that a reasonable jury could return a verdict in favor of the nonmovant. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A] mere scintilla of evidence in support of the non-moving party's position is insufficient to defeat a motion for summary judgment.” Kesinger, 381 F.3d at 1247.

         The party seeking summary judgment bears the initial burden of demonstrating to the court, by reference to the record, that there are no genuine issues of material fact to be determined at trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). “When a moving party has discharged its burden, the non-moving party must then go beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (internal citations and quotation marks omitted).

         Substantive law determines the materiality of facts, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. In determining whether summary judgment is appropriate, a court “must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995) (citing Dibrell Bros. Int'l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994)).

         III. Facts & Claims for Relief

         Jenkins' claims arise out of a documented spontaneous use of force incident that occurred at SCI on November 11, 2011, involving Defendants Corbin, Humphrey, and Rogers. On the date of the incident, Jenkins was housed in the prison infirmary/medical isolation area. Complaint at 3; Motion Ex. B at 4. He was on close management, self-harm observation status and was documented as a “mental health grade level 2.” Motion Ex. C at 3-4.[8]

         The use of force incident under review occurred at approximately 9:15 a.m. Id. at 4, 7. Earlier that morning, at about 7:10 a.m., according to a nurse's entry in Jenkins' “Chronological Record of Health Care” (medical chart) (Doc. 110-2; Motion Response Ex. B), Jenkins was angry and banging on his cell windows. After observing Jenkins at his cell, Nurse Hancock wrote the following entry in the medical chart: “[Inmate] has hand wrapped up and has been banging on window off and on for about 50 min[utes]. [He h]as been acting out [for two] evenings and was started on a [management] meal this [morning].[9] Affect angry.” Motion Response Ex. B at 2.

         Nurse Bisque, who was on duty at the time of the use of force incident, made an entry in the medical chart at 2:10 p.m. on November 11, 2011 (after the incident). Id. at 3. She noted having been informed that, in the morning, Jenkins was agitated and banging on his cell window. Nurse Bisque wrote the security officer counseled Jenkins “cell front, ” and Jenkins threatened the officer and yelled obscenities. Id. After the officer in charge arrived, [10]Jenkins was brought to the nurses' station while Defendant Corbin was searching his cell pursuant to a 72-hour property restriction order imposed because of Jenkins' recent disruptive and threatening behavior and his property was in disarray. Id.; Motion Ex. B at 4. When Jenkins was at the nurses' station, he continued his threatening behavior. Shift supervisor Captain Stout was present, along with Lieutenant Keith. Both Stout and Keith heard Jenkins state, “If you put me on strip I am going to kill the first staff member that I get my hands on.” Ex. E at 3, 16.[11]

         The use of force incident occurred after the cell search was complete and Defendant Corbin was attempting to return Jenkins, who was in a wheelchair, to his cell. Motion Ex. B at 4. Defendants Rogers and Humphrey were present, as well as Lieutenant Keith, who ordered Jenkins to submit to having his shirt removed for a strip search. Jenkins refused. In his use of force report, Defendant Corbin explains the following:

I completed my search and removal of property from [Jenkins' cell], and was attempting to place inmate Jenkins back into his cell when he told[] Sergeant James Rogers, Officer Michael Humphrey and myself that we were going to have to “run it to get his clothes and he wasn't going on strip.” At that time, Lieutenant Jason Keith, who was present gave several verbal orders for inmate Jenkins to submit to having his shirt removed . . . . Inmate Jenkins stated “No it ain't happening” and inmate Jenkins spun his wheel chair [sic] around [and] stood up and lunged at me in an aggressive and agitated manner stating “I'm gonna f*** you up!” At this time, I side stepped and placed both hands on the back of the inmate grasping his shirt and directed the inmate to the floor in the prone position. Sergeant Rogers and Officer Humphrey were present and assisted in controlling Inmate Jenkins' extremities. I then repositioned inmate Jenkins['] upper torso inside the cell door, by lifting his upper torso from the floor and turning him inside the cell, his lower ...

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