United States District Court, M.D. Florida, Ocala Division
J. DAVIS, UNITED STATES DISTRICT JUDGE.
Johnny Burgess initiated this action on March 29, 2017, by
filing a pro se Civil Rights Complaint (Doc. 1; Complaint).
After the Court dismissed the claims against the Secretary of
the Florida Department of Corrections (FDOC) and the prison
warden, see Order (Doc. 13), two Defendants remain:
Jonathan Jorge and FNU Rouse, corrections officers at Lake
Correctional Institution (LCI). In his Complaint, Plaintiff
asserts Defendants failed to protect him from an inmate
attack in violation of the Eighth Amendment. See
Complaint at 5. As relief, Plaintiff seeks compensatory and
punitive damages. Id. at 7-8.
the Court is Defendants’ Motion for Summary Judgment
(Doc. 102; Motion). In support of their Motion, Defendants
provide Plaintiff’s FDOC face sheet (Doc. 118-1); a
provision of the Florida Administrative Code (Doc. 118-2); an
FDOC incident report dated July 23, 2015 (Doc. 118-3;
Incident Report); an investigative report by the Inspector
General’s Office (Doc. 118-4; IG Report); Defendant
Jorge’s affidavit (Doc. 118-5; Jorge Aff.); Defendant
Jorge’s responses to Plaintiff’s interrogatories
(Doc. 118-6; Jorge Interr. Resp.); the transcript of the
inspector’s interview with Defendant Jorge (Doc. 118-7;
Jorge Interview Tr.); the affidavit of Defendant Rouse (Doc.
118-8; Rouse Aff.); Defendant Rouse’s responses to
Plaintiff’s interrogatories (Doc. 118-9; Rouse Interr.
Resp.); the transcript of the inspector’s interview
with Plaintiff (Doc. 118-10; Pl. Interview Tr.); a MINS
report dated July 20, 2015 (Doc. 118-11); copies of
Plaintiff’s grievances and responses (Doc. 118-12);
excerpts of Plaintiff’s deposition transcript (Doc.
118-13; Depo. Tr.); an FDOC disciplinary report against
Plaintiff dated July 23, 2015 (Doc. 118-14); and
Plaintiff’s medical records (Doc. 118-15; Med.
responded to the Motion (Doc. 108; Response), with exhibits,
most of which are duplicative of evidence Defendants offer,
including his deposition transcript, Defendants’
responses to his interrogatories, and his medical records.
See Response at 12-13 (Plaintiff’s index of
exhibits). Plaintiff also offers his own affidavits,
the affidavits of two other inmates, multiple sick- call
request forms he submitted following the incident, and
provisions of the Florida Administrative Code. Id.
leave of Court, see Order (Doc. 112), Defendants
replied (Doc. 119; Reply). Accordingly, the Motion is ripe
for this Court’s review.
Summary Judgment Standard
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). 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 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)).
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). 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).
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
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)).
Complaint, Plaintiff alleges Defendant Jorge orchestrated a
plan to have another inmate attempt to kill him. See
Complaint at 6. The incident occurred on July 23, 2015, in
the mental health unit at LCI. Id. at 5. While
Plaintiff was attending a mental health “group”
session, another inmate, Martavius Henderson, stabbed
Plaintiff with a shank/knife (“weapon”)
(“the stabbing incident”). Id. at 5, 6.
Plaintiff states he told both Defendants that Henderson had a
weapon and would kill Plaintiff if the two inmates were
“allowed in the group room” together Id.
first of two affidavits, Plaintiff avers he had been in fear
of Henderson since Henderson attacked him the week before the
stabbing incident (“the first incident”). See
Response at 15. On the morning of the stabbing incident,
inmate Henderson, from his cell, showed Plaintiff he had a
weapon, and Henderson threatened to kill Plaintiff with it.
Id. At that time, Defendant Jorge and the mental
health official were on the wing to determine which inmates
wanted to participate in group. Plaintiff claims he got
Defendant Jorge’s attention and “informed him
that inmate Henderson had a [weapon] that he’d try to
kill [Plaintiff] with” if the two were placed together
in group. Id. at 15-16. Plaintiff tried to
discreetly inform Defendant Jorge of his fear because
Henderson’s cell was nearby: Plaintiff says he
whispered the warning to Defendant Jorge and held up a piece
of paper that said, “HE’S GOT A KNIFE!”
Id. at 15, 16. Plaintiff avers Defendant Jorge
ignored his worries because Plaintiff and Jorge had prior
“problems and disputes,” and Plaintiff had
recently filed a grievance against Jorge, which was reported
to the Inspector General’s Office for investigation.
Id. at 16.
was brought to the group room before Henderson. Id.
Plaintiff informed Defendant Rouse, who was in the group room
with him, that Henderson had a weapon and would try to kill
Plaintiff with it. Plaintiff avers Defendant Rouse laughed
his warning off as a joke. Defendant Rouse also stated to
Plaintiff, “no ones [sic] got a knife. And we wont
[sic] let no one kill you.” Id. According to
Plaintiff, Defendant Jorge extracted Henderson from his cell.
Id. From the group room, Plaintiff observed
Defendant Jorge talking to Henderson and noticed that Jorge
failed to search Henderson before escorting him to the group
describes the following occurred as Henderson entered the
group room: “By the time inmate Henderson walked
through the threshold of the group room door, he was pulling
his hand back up out of his pants with the [weapon] in his
hand.” Id. Upon seeing the weapon, Plaintiff
shouted, “he’s got a knife,” and he rushed
towards Henderson to protect himself from being stabbed.
Id. at 16-17. Defendant Jorge grabbed Plaintiff,
affording Henderson an opportunity to stab Plaintiff.
Id. at 17.
offers the affidavits of two inmates, Morilus Ronald and Lane
Trimanye, who were housed on the mental health wing with him
and Henderson. Inmate Ronald avers he witnessed Plaintiff
“tell [Defendant] Jorge that Henderson had a
[weapon],” but Defendant Jorge ignored Plaintiff.
Id. at 21. Ronald further states Plaintiff tried to
inform Defendant Rouse about the threat, but Defendant Rouse
also ignored him. Id. Ronald explains what happened
when Defendant Jorge escorted Henderson into the group room:
“[Defendant] Jorge let Henderson rushing [sic]
[Plaintiff] and stabbed [Plaintiff].” Id.
Trimanye avers he was housed on the mental health wing with
Plaintiff and Henderson on the day of the first incident.
Id. at 23, 24. Trimanye avers Defendant Rouse
“served and investigated” a disciplinary report
against Henderson following the first incident. Id.
at 23. Trimanye characterizes the first incident as
“the talk of the mental health unit.”
Id. After the first incident, Trimanye was moved to
another wing of the prison. Id. at 24. However, he
says he later “heard of staff allowing Henderson into
the [mental health] group with a weapon,” which
resulted in Plaintiff’s stabbing. According to
Trimanye, the mental health official overheard Plaintiff warn
Defendant Rouse of Henderson’s threat and possession of
a weapon. Id. The mental health official told
Trimanye he did not report what he overheard because he was
scared to lose his job. Id.
in a second affidavit, explains he was later transferred to
two different correctional institutions along with Henderson.
Id. at 27. He avers the following:
Henderson bragged . . . about how he had almost killed
[Plaintiff] and gotten away with it … because officers
did not like [Plaintiff] so they covered up the
evidence… [P]lus Henderson bragged about how
[Plaintiff] had snitched and forewarned officers Jorge and
Rouse that he had a knife but they wouldn’t listen to
him …. Henderson stated that he consulted with officer
Jorge to leave his handcuffs on 1 click so that he could
easily slide his hands out of the handcuffs and jump on
[Plaintiff] and officer Jorge agreed.
Id. at 27-28. Henderson also stated, however,
Defendant Jorge did not know Henderson had a weapon;
Defendant Jorge “only wanted Henderson to jump on
[Plaintiff,] not stab him.” Id. at 28.
Summary of the Arguments
their Motion, Defendants argue there is no evidence
demonstrating they were deliberately indifferent to a serious
risk of harm, they are entitled to qualified immunity, and
Plaintiff cannot recover compensatory or punitive damages
under 42 U.S.C. § 1997e (e). See Motion at 13,
16, 17. Additionally, Defendants assert Eleventh Amendment
protects them from damages in their official capacities.
Id. at 15.
argue there is no evidence they knew of the first incident
between inmate Henderson, and Plaintiff initiated the
stabbing incident, thus causing his own injury. Id.
at 13. Defendants state, “[t]here is no evidence to
support Plaintiff’s assertion that [they] knew ahead of
time that Inmate Henderson intended to attack
Plaintiff.” Id. In their Reply, Defendants
contend Plaintiff “can show no evidence” they
knew Henderson posed a threat of harm to Plaintiff. Reply at
3. They reason, “Defendants did not place Plaintiff in
any vulnerable position or at risk because Plaintiff himself
initiated the attack.” Id.
rely in part upon internal FDOC records and their own
statements. In the incident report, the reporting employee
recorded, “[Defendant] Jorge informed me during this
group session [Plaintiff] . . . stood up out of his chair and
charged at Inmate Henderson . . . . [who] stabbed [Plaintiff]
in the neck with a homemade knife.” Incident Report at
1. Defendants aver in their affidavits that they saw
Plaintiff rush at Henderson. Defendant Jorge states,
Plaintiff “aburuptly jumped out of his chair and
charged Henderson.” Jorge Aff. ...