United States District Court, M.D. Florida, Jacksonville Division
Morales Howard United States District Judge.
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.
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). 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.
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
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.
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
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.
Summary Judgment Standard
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). 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
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)).
Summary of the Arguments
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,
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.
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.
Eighth Amendment Use of Excessive Force and Failure to
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). 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
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.
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)).
"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 . . . .").
The Laundry Room Incident Excessive Use of Force and Failure
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. While counseling with inmate JOHNSON he
became argumentative and began yelling obscenities towards
me, shouting "F[-]ck You! You bout to get some
Rec!" 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. 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
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
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.
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
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,  and Bryant had no injuries, see
Bryant Decl. at 2.
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] 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 ...