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Johnson v. Anderson

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

August 7, 2019

GREGORY JOHNSON, Plaintiff,
v.
TONY ANDERSON, et al., Defendants.

          ORDER

          Marcia Morales Howard United States District Judge.

         I. Status

         Plaintiff Gregory Johnson, an inmate of the Florida penal system, initiated this action on August 23, 2017, by filing a Civil Rights Complaint (Complaint; Doc. 1) with exhibits (P. Ex.). In the Complaint, Johnson asserts claims pursuant to 42 U.S.C. § 1983 against the following Defendants: (1) Warden Tony Anderson; (2) Sergeant Morgan McKinley; (3) Corrections Officer Ray Bryant; and (4) Captain Isiah Griffin. He alleges that the Defendants violated his federal constitutional rights when they used excessive force against him and/or allowed the use of excessive force against him on December 28, 2016, at Hamilton Correctional Institution (HCI). He seeks compensatory and punitive damages as well as injunctive and declaratory relief.

         This matter is before the Court on Defendants' Motion for Summary Judgment (Motion; Doc. 20). They submitted exhibits in support of their summary judgment request. See Def. Exs. A-I (Docs. 20-1 through 20-10); Def. Supp. Exs. A; B (Docs. 27-1; 27-2).[1] The Court advised Johnson of the provisions of Federal Rule of Civil Procedure 56, notified him that the granting of a motion to dismiss or a motion for summary judgment would represent a final adjudication of this case which may foreclose subsequent litigation on the matter, and gave him an opportunity to respond to the Motion. See Summary Judgment Notice (Doc. 23); Order (Doc. 6). Johnson responded. See Response to Summary Judgment (Response; Doc. 38); Declaration in Opposition to Defendants' Motion for Summary Judgment (Johnson Decl.; Doc. 37). Defendants' Motion is ripe for review.

         II. Plaintiff's Allegations

         In his Complaint, Johnson asserts that Defendant McKinley sprayed him with chemical agents and "pummeled" him with punches and kicks on December 28, 2016, at HCI. Complaint at 5.[2] He avers that Defendants Bryant and Griffin assisted McKinley instead of trying to stop McKinley's assaultive behavior. See id. According to Johnson, Defendant Anderson allowed his officers to use excessive force against Johnson, and authorized Johnson's transfer to another institution that same day, so Johnson could not identify the "involved officers." Id.

         As to the underlying facts of his claims, Johnson states that he experienced psychological issues on December 28, 2016, due to a lengthy history of depression as well as "situations" in the dormitory that motivated him to declare a psychological emergency. Id. at 7. He maintains that McKinley and Corrections Officer Roman were conducting the afternoon count when McKinley told Johnson that he would address Johnson's concerns after the count. See Id. According to Johnson, McKinley "motioned" for Johnson to "get up" and "follow him" to the laundry room. Id. Johnson asserts that he told McKinley that he was "declaring a psychological emergency" to avoid the dormitory's negative effect on his mental health. Id. He alleges that McKinley sprayed him with chemical agents in the laundry room, and both McKinley and Bryant "pummeled" him "with kicks and punches" until he "fell unconscious." Id. He states that Defendant Griffin kicked him in his mid-section, and Griffin and Bryant failed to stop McKinley's assault on him. See id. at 5. He avers that McKinley and Bryant ordered him to "stop resisting," but he "was not resisting at all." Id. at 7. He states that they placed hand and leg restraints on him and carried him to confinement. See id. According to Johnson, he "felt a sharp pain to [his] lower back" that restored him to consciousness, as he heard McKinley comment on the word "killer" tattooed on Johnson's back. Id. at 7- 8. Johnson avers that when he heard someone ask about the cuts on his back, he coughed as he tried to reply. See id. at 8. He maintains that he did not spit, but instead coughed "as a reflex from being sprayed" with chemical agents. Id. He also asserts that his "personal sneakers" were confiscated and not returned. See Id.

         Johnson avers that officers "constantly" sprayed him with chemical agents while he was in hand restraints and "disoriented" in a decontamination shower. Id. He states that he screamed for help and "finally gain[ed] [his] bearings" and permitted them to remove the hand restraints, so he could change his clothes and transfer to another decontamination shower. Id. Johnson maintains that he was "scared" and "did not trust anyone not even the nurse" because he feared "being poisoned with dirty or used equipment or something." Id. He alleges that the Florida Department of Corrections (FDOC) "emergency transferred" him to another institution where he was assigned to close management one (CM1) confinement due to McKinley's "false documents" associated with disciplinary reports (DR(s)) that he wrote. Id. at 8-9. He states that he suffers with vision and teeth problems as a result of the incidents. See id. at 9.

         III. Summary Judgment Standard

         Under Rule 56 of the Federal Rules of Civil Procedure (Rules(s)), "[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." Fed.R.Civ.P. 56(c)(1)(A).[3] An issue is genuine when the evidence is such that a reasonable jury could return a verdict in favor of the non-moving party. 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 ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

         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)).

         IV. Summary of the Arguments

         In the Motion, Defendants assert that there are no genuine issues of material fact, and therefore, the Court should grant summary judgment in their favor. They state that Johnson fails to state a claim against Defendant Anderson, see Motion at 10-15, and that they are entitled to qualified immunity, see id. at 6-10. Defendants maintain that there are three related incidents involving Johnson on the afternoon of December 28, 2016: (1) McKinley's use of chemical agents; Bryant and Griffin's failure to intervene; and McKinley, Bryant, and Griffin's punching and kicking Johnson, [4] see id. at 2-3; (2) Griffin's directive to four officers to carry Johnson to a decontamination shower, and use of force to subdue Johnson; see id. at 3; and, (3) Defendant Anderson's authorization for a corrections officer's use of chemical agents while Johnson was confined in a decontamination shower, see id. at 4.

         In his Response, Johnson asserts that he relies on his declaration (Doc. 37), deposition (Def. Ex. I, Doc. 20-10 (P. Depo.)), and medical records attached to his Complaint (Doc. 1 at 11-12) to show that there are genuine issues of material fact that preclude summary judgment in Defendants' favor. See Response at 18-19. He also asks the Court to strike Defendants' Motion because it is "confusing" and includes false facts. Id. at 19. Additionally, Johnson requests leave to amend his Complaint, see id. at 5, 24, and reopen discovery, see id. at 5-8.

         V. Analysis

         A. Eighth Amendment Use of Excessive Force and Failure to Intervene

         Johnson asserts that Defendant McKinley sprayed him with chemical agents and kicked and punched him on December 28, 2016, in the HCI laundry room. See Complaint at 5. He avers that Defendants Bryant and Griffin failed to stop McKinley's attack on Johnson and joined McKinley in his assaultive efforts. See id. According to Johnson, Defendant Anderson allowed his subordinate officers to use excessive force against Johnson, and thereafter authorized Johnson's transfer to another institution to thwart Johnson's ability to identify the officers involved in the excessive force. See id. With respect to the appropriate analysis in an excessive use of force case, the Eleventh Circuit has explained.

[O]ur core inquiry is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 999, 117 L.Ed.2d 156 (1992). In determining whether force was applied maliciously and sadistically, we look to five factors: "(1) the extent of injury; (2) the need for application of force; (3) the relationship between that need and the amount of force used; (4) any efforts made to temper the severity of a forceful response; and (5) the extent of the threat to the safety of staff and inmates[, as reasonably perceived by the responsible officials on the basis of facts known to them]..." Campbell v. Sikes, 169 F.3d 1353, 1375 (11th Cir. 1999) (quotations omitted).[5] However, "[t]he Eighth Amendment's prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Hudson, 112 S.Ct. at 1000 (quotations omitted).

McKinney v. Sheriff, 520 Fed.Appx. 903, 905 (11th Cir. 2013) (per curiam). "When considering these factors, [courts] 'give a wide range of deference to prison officials acting to preserve discipline and security, including when considering decisions made at the scene of a disturbance.'" Fennell v. Gilstrap, 559 F.3d 1212, 1217 (11th Cir. 2009) (per curiam) (quoting Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007)).

         "The Eighth Amendment's prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Hudson v. McMillian, 503 U.S. 1, 9-10 (1992) (internal quotations and citations omitted). Indeed, not "every malevolent touch by a prison guard gives rise to a federal cause of action." Id. at 9 (citation omitted). "While a lack of serious injury is relevant to the inquiry, '[i]njury and force . . . are only imperfectly correlated and it is the latter that ultimately counts.'" Smith v. Sec'y, Dep't of Corr., 524 Fed.Appx. 511, 513 (11th Cir. 2013) (per curiam) (quoting Wilkins v. Gaddy, 559 U.S. 34, 38 (2010)). "A prisoner may avoid summary judgment, 'only if the evidence viewed in the light most favorable to him goes beyond a mere dispute over the reasonableness of the force used and will support a reliable inference of wantonness in the infliction of pain.'" Stallworth v. Tyson, 578 Fed.Appx. 948, 953 (11th Cir. 2014) (quoting Brown v. Smith, 813 F.2d 1187, 1188 (11th Cir. 1987)).

         Moreover, "an officer can be liable for failing to intervene when another officer uses excessive force." Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 924 (11th Cir. 2000); Ensley v. Soper, 142 F.3d 1402, 1407-08 (11th Cir. 1998). This liability, however, only arises when the officer is in a position to intervene and fails to do so. See Keating v. City of Miami, 598 F.3d 753, 764 (11th Cir. 2010); see also Fils v. City of Aventura, 647 F.3d 1272, 1290 n.21 (11th Cir. 2011); Brown v. City of Huntsville, 608 F.3d 724, 740 n.25 (11th Cir. 2010) ("Because the relevant events happened so quickly, the record does not reflect any point at which [the officer] could have intervened to prevent [another officer's] use of excessive force . . . .").

         1. The Laundry Room Incident Excessive Use of Force and Failure to Intervene

         According to Johnson, Defendant McKinley unjustly sprayed him with chemical agents, Defendants Bryant and Griffin failed to stop McKinley's excessive use of force, and the three Defendants punched and kicked Johnson. See Complaint at 5. In an Incident Report, Defendant McKinley provided the following narrative, in pertinent part:

On December 28, 2016 at approximately 4:03 PM, while assigned as the E-Dormitory Housing Supervisor, Officer Ray Bryant and I were present near the Laundry Room entrance door on Wing Two in E-Dormitory with Inmate JOHNSON, Gregory DC#W08280, who had become disruptive during the commencement of the afternoon count.[6] While counseling with inmate JOHNSON he became argumentative and began yelling obscenities towards me, shouting "F[-]ck You! You bout to get some Rec!"[7] I gave inmate JOHNSON multiple orders to cease his actions, as I simultaneously retrieved my assigned OC Chemical Agent Canister[.] Inmate JOHNSON then began rushing towards me with clenched fists, and it then became necessary to reactively utilize my assigned Sabre Red OC (Oleoresin Capsicum) MK-4 High Volume Streamer, AX# 10-4, and administer a continuous stream of chemical agent to the upper torso and facial area of inmate JOHNSON, in an attempt to gain compliance from inmate JOHNSON and cease his attack. Inmate JOHNSON continued his attack, yelling obscenities and striking me in the face. At that time I exhausted my Chemical Agent[s] Canister and then assumed a defensive stance and struck inmate JOHNSON in the face and upper torso, with a clenched fist, in order to defend myself and cease Inmate JOHNSON from striking me. Officer Ray Bryant was present and obtained a hold to inmate JOHNSON'S upper torso, as I obtained a hold to inmate JOHNSON'S extremities[.] I then with the assistance of Officer Bryant forced inmate JOHNSON to the floor and utilized knee spikes to distract inmate JOHNSON from his resistance. Officer Bryant and I were able to maneuver inmate JOHNSON chest down on the floor, and utilize the floor to immobilize inmate JOHNSON'S upper torso and apply wrist restraints. Officer Benjamin Roman was present in the dormitory and arrived on scene.[8] Officer Roman initiated the Incident Command System (ICS) utilizing his assigned hand held radio and requested the assistance of additional security staff. Officer Bryant and I then continued utilizing the floor to immobol[ize] inmate JOHNSON until additional security staff arrived on scene. When additional security staff arrived, they obtained a hold to inmate JOHNSON[, ] applied leg restraints[, ] and inmate JOHNSON was assisted to a standing position. At that time[, ] all force ceased by me. Inmate JOHNSON immediately refused to walk and lowered himself back to the floor. The responding additional security staff members then lifted inmate JOHNSON utilizing a chest up four man carry and transported inmate JOHNSON from the dormitory without further incident. I am trained in the use of Chemical Agents as reflected on my Weapons Card.

Def. Ex. B, Incident Report, Doc. 20-3 at 5-6. McKinley wrote DRs against Johnson for disobeying an order and attempted battery on a corrections officer, and Johnson was found guilty of both infractions. See Def. Exs. F, Doc. 20-7 at 2-3; G, Doc. 20-8 at 2-3. Defendant Bryant provided a similar factual account of what had transpired in the laundry room.

On December 28, 2016 at approximately 4:03 pm, while assigned as the Internal Security Officer, I was present in E-Dormitory Wing Two near the Laundry Room door when Inmate JOHNSON, Gregory DC#W08280 began striking Sergeant Morgan McKinley in the face and upper torso. I assisted Sergeant McKinley by obtaining a hold to inmate JOHNSON's upper torso and with the assistance of Sergeant McKinley we forced inmate JOHNSON to the floor. Sergeant McKinley obtained a hold to inmate JOHNSON's left upper extremity as he continued to attempt to strike staff present. I attempted to obtain a hold to inmate JOHNSON's right upper extremity when he struck me with a clenched fist on the side of my face. I obtained a hold to inmate JOHNSON's arm as Sergeant McKinley utilized knee spikes as a distraction tactic, in order to roll inmate JOHNSON face down [o]n the floor so wrist restraints could be applied. Sergeant McKinley and I were able to maneuver inmate JOHNSON chest down on the floor and place him in wrist restraints. I then utilized the floor to immobilize inmate JOHNSON until additional security staff arrived. At that time all force ceased by me.

Id. at 17.

         In support of Defendants' Motion, McKinley and Bryant submitted similar declarations as to what occurred with Johnson in the laundry room. See Def. Supp. Exs. A, Doc. 27-1, Declaration of Morgan McKinley (McKinley Decl.); B, Doc. 27-2, Declaration of Ray Bryant (Bryant Decl.). Additionally, Griffin provided a declaration, stating in pertinent part:

On December 28, 2016 I was working as the Shift Supervisor at Hamilton Correctional Institution, Annex. At around 4:00 PM I received a radio call about an attack on officers by an inmate, and a use of force which occurred in response to the attack. Upon receipt of the radio call, I responded to the scene. I determined that chemical agents and physical force had to spontaneously be used against Plaintiff by Sergeant Morgan McKinley and Officer Ray Bryant. The Plaintiff did not appear to have any injuries. However, Sergeant McKinley appeared to have injuries to his head and facial area. I then had Sergeant McKinley and Officer Bryant report to medical for medical assessment.

Def. Ex. C, Doc. 20-4, Declaration of Isiah Griffin (Griffin Decl.) at 2. According to McKinley and Bryant's declarations, McKinley had minor injuries (swelling on the top of his head and a swollen left eye), see McKinley Decl. at 3, [9] and Bryant had no injuries, see Bryant Decl. at 2.

         In a declaration opposing Defendants' summary judgment motion, Johnson describes the incident as follows:

During count[, ] I spoke[] to Sergeant McKinley attempting to declare a psychological emergency. He advised me to hold on until he finish[ed] counting to speak to him.
Sergeant McKinley returned, walked me to the laundry room, and said it look[s] like you want some rec. . . .
I urgently told him I am declaring a psychological emergency[.] I don't want to fight.
Sergeant McKinley had two officer[s][10] already in the laundry room awaiting and ordered them to call back up before coming towards me while preparing to fight (took off his shades and hat[] and reach[ed] for his canister on his ...

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