United States District Court, N.D. Florida, Tallahassee Division
PERRY L. JOHNSON, JR., Plaintiff,
DIRECTOR MS. S. HOOKS, and E. NEGRON-OLIVER, Defendants.
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.
a former prisoner proceeding pro se in this action, filed a
third amended complaint, ECF No. 9, pursuant to 28 U.S.C.
§ 1331 and Bivens v. Six Unknown Agents of Fed.
Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29
L.Ed.2d 619 (1971). The third amended complaint (hereinafter
“complaint”) was served on the two named
Defendants and Defendant Negron-Oliver filed a motion to
dismiss or motion for summary judgment, ECF No. 23, in
November 2018. The motion was subsequently construed as a
summary judgment motion, ECF No. 24, and Plaintiff was
provided with a discovery period prior to being required to
file his opposition to the motion. ECF No. 25. Thereafter,
Plaintiff timely filed a response to the summary judgment
motion, ECF No. 33, and Defendant Negron-Oliver filed a
reply, ECF No. 35.
recently, Defendant Hooks filed a notice, ECF No. 39, on May
8, 2019, which was construed as a motion to join in the
pending motion for summary judgment. See ECF No. 40.
However, the motion also raised separate arguments and, thus,
Plaintiff was provided an opportunity to address those
additional arguments. ECF No. 40. Considering that discovery
had been extended and was ongoing, see ECF No. 38,
Plaintiff was directed to advise whether or not he needed
additional discovery before ruling was entered on the pending
motions. ECF No. 40.
filed a response to both of the Defendants' motions, ECF
No. 41, requesting that it be accepted to replace his prior
response, see ECF No. 33. Plaintiff did not state
that he needed additional discovery prior to responding.
Thus, Plaintiff's response, ECF No. 41, is accepted and
construed as an amended response to the pending motion for
summary judgment filed by Defendant Negron-Oliver as well as
his response to the motion filed by Defendant Hooks. The
motions are ready for a ruling.
events at issue in this case occurred while Plaintiff was
serving the final portion of his federal sentence at a
residential reentry center in Tallahassee, Florida. Plaintiff
alleged that Defendants falsely accused him of circumventing
mail procedures and retaliated against him. See ECF
No. 41 at 4; ECF No. 9 at 12-13. He further alleged that he
was denied his right to due process when he was not called to
attend a disciplinary hearing before he was sanctioned with
the loss of good conduct time and removed from the
residential re-entry center. ECF No. 9 at 6. After Plaintiff
filed an administrative appeal concerning the discipline
imposed, the charges were “expunged.” ECF No. 9
at 11. Plaintiff then filed an Administrative Tort Claim with
the Bureau of Prisons and received a settlement offer, which
he declined. Id. at 12.
Negron-Oliver is now a retired BOP discipline hearing officer
(DHO). ECF No. 23 at 2. At the time of the events in this
case, Defendant Negron-Oliver was working as a DHO at FCI
Bennettsville. Id. In that capacity, she certified
disciplinary actions taken at residential reentry centers
(RRCs) housing BOP inmates in the Southeast Region.
Hooks was the Director of the Tallahassee RRC which was owned
and operated by Keeton Corrections, Inc. ECF No. 39 at 1. She
is no longer employed by Keeton Corrections but, at the time
of the underlying events, worked as an employee for that
company and was not employed by the Bureau of Prisons (BOP).
ECF No. 39 at 5. An RRC is “sometimes referred to as
‘halfway houses' because they house federal
prisoners who are nearing their release date and are
‘half way' between being in prison and being
released into society.” ECF No. 39 at 5-6. Defendant
Hooks wrote an incident report against Plaintiff on August
19, 2015, which is at the center of this litigation. ECF No.
23-1 at 3.
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 nonmoving 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 nonmoving 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 nonmoving
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 nonmoving party, there is no ‘genuine
issue for trial.'” Matsushita Elec. Indus.
Co., 475 U.S. at 587, 106 S.Ct. at 1356 (other citation
Relevant Rule 56(e) Evidence
Defendants submitted declarations as evidence supporting the
summary judgment motion. ECF No. 23-1; ECF No. 39 at 5-8.
Plaintiff submitted argument in his response, but he did not
submit any evidence. ECF No. 41. Thus, there is no ...