UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-21979-CIV-ALTONAGA

MIKE ELBERT NEAL,

Plaintiff,

v. 

UNIT OFFICER DELMAN 

LUMPKIN, et al., 

Defendants.

__________________________/ 

ORDER

THIS CAUSE is before the Court on Plaintiff’s Second Amended Complaint (“SAC”)

[ECF No. 73], entered on the docket on January 24, 2023. Upon screening, the Court concludes 

the case may proceed in part. 

Preliminary Matters. Plaintiff’s First Amended Complaint (“FAC”) [ECF No. 61] was 

entered on December 28, 2022. In its January 3, 2023 Order [ECF No. 62], the Court dismissed 

the FAC without prejudice, explaining it was a shotgun pleading that violated the Federal Rules 

of Civil Procedure. (See id. 1–4). The Court assumes the reader’s familiarity with the January 3, 

2023 Order. The Court now assesses the SAC. 

Count One: Failure to Process Grievances 

Liberally construed, see Douglas v. Yates, 535 F.3d 1316, 1320 (11th Cir. 2008), Plaintiff 

claims deliberate indifference resulting from Defendants Lawrence, Hamilton, and Guerra’s

failure to file Plaintiff’s grievances against Defendant Lumpkin and thereby protect Plaintiff. (See 

SAC 15–16). To constitute deliberate indifference resulting from a failure to protect an inmate, 

“the prison official must have subjective knowledge of the risk of serious harm, and must 

nevertheless fail to reasonably respond to the risk.” Murphy v. Turpin, 159 F. App’x 945, 947–48 

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(11th Cir. 2005) (citing Farmer v. Brennan, 511 U.S. 825, 837–38 (1994) (emphasis omitted)). A 

prison official must also have a sufficiently culpable state of mind to be deliberately indifferent. 

See Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003) (citations omitted). 

Plaintiff brings this claim against Lawrence, Hamilton, and Guerra1 in their individual 

capacities. (See SAC ¶ 140). Plaintiff alleges he gave Guerra multiple grievance complaints 

against Lumpkin during April 2019. (See id. ¶ 143). Plaintiff further alleges that on April 9, 2019, 

he gave Lawrence and Hamilton grievances against Lumpkin, but Lawrence and Hamilton 

“maliciously failed to process” the grievances. (Id. ¶ 145). Plaintiff alleges that Lawrence 

personally assured him she would process his grievances. (See id. ¶ 29). Plaintiff alleges that 

instead of processing the grievances, Lawrence maliciously gave them to Hamilton, who then

failed to process them and ignored Plaintiff’s subsequent requests for carbon copies. (See id. ¶¶

30–31). 

Plaintiff does not allege that Lawrence, Hamilton, and Guerra had a subjective knowledge 

of the risk of serious harm. Plaintiff alleges he gave them grievances against Lumpkin but does 

not allege that he told any of them about Lumpkin’s threats or otherwise made them aware of the 

contents of the grievances. (See id. ¶¶ 143–45). Therefore, Count One is due to be dismissed 

against Lawrence, Hamilton, and Guerra for failure to state a claim for relief. 

Count Two: Retaliation 

“The First Amendment prohibits prison officials from retaliating against prisoners for 

exercising their right of free speech by filing lawsuits or grievances.” Jacoby v. Mack, 755 F. 

App’x 888, 902 (11th Cir. 2018) (citing O’Bryant v. Finch, 637 F.3d 1207, 1212 (11th Cir. 2011); 

other citation omitted). To prevail on a retaliation claim, an inmate must establish that: “(1) his 

1 Correctional Counselor John Guerra was omitted from the FAC. (Compare SAC with FAC). The named 

Defendants are otherwise identical. (See id.).

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speech was constitutionally protected; (2) the inmate suffered adverse action such that the 

[official’s] allegedly retaliatory conduct would likely deter a person of ordinary firmness from 

engaging in such speech; and (3) there is a causal relationship between the retaliatory action [the 

disciplinary punishment] and the protected speech [the grievance].” O’Bryant, 637 F.3d 1212

(alterations in original; citation and quotation marks omitted). 

Plaintiff alleges that on April 11, 2019, Lumpkin “specifically told Plaintiff he had seen 

those grievance complaints filed against him.” (SAC ¶ 155). Liberally construed, see Douglas, 

535 F.3d at 1320, Plaintiff alleges that the grievances led to Lumpkin’s retaliatory beating of

Plaintiff on April 12, 2019. (See SAC ¶¶ 40–48, 155–156, 160). These allegations support a 

reasonable inference that Lumpkin’s retaliatory action — the April 12, 2019 beating — resulted 

from the protected speech — Plaintiff’s grievances. Therefore, Plaintiff’s retaliation claim may 

proceed against Lumpkin in his individual capacity. 

Count Three: Excessive Force 

Because Plaintiff was a pretrial detainee at the time of the alleged incident, his excessive 

force claim is governed by the Fourteenth Amendment to the United States Constitution. See 

Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015). Under the Fourteenth Amendment, pretrial 

detainees raising excessive force claims need not prove an officer’s subjective intent to harm, but 

instead need show only “that the force purposely or knowingly used against [them] was objectively 

unreasonable.” Id. at 396–97 (alteration added). Objective reasonableness, for the purpose of 

deciding a pretrial detainee’s Fourteenth Amendment excessive force claim, turns on the facts and 

circumstances of each case. See Patel v. Lanier Cnty., 969 F.3d 1173, 1181–82 (11th Cir. 2020). 

Considerations such as the following may bear on the reasonableness or unreasonableness of the 

force used: (1) the relationship between the need for the use of force and the amount of force used; 

(2) the extent of the plaintiff’s injury; (3) any effort made by the officer to limit the amount of 

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force; (4) the severity of the security problem at issue; (5) the threat reasonably perceived by the 

officer; and (6) whether the plaintiff was resisting. See id. at 1182 (quoting Kingsley, 576 U.S. at 

397).

Plaintiff brings this claim against Lumpkin in his individual capacity. (See SAC ¶ 152). 

Plaintiff alleges that Lumpkin “assaulted Plaintiff with 13 hard punches despite the fact that he 

knew and did not care Plaintiff was wearing handcuffs and defenseless and could not [pose a] 

threat to him.” (Id. ¶ 48 (alteration added)). Plaintiff alleges that after the beating, he was 

transferred to the medical clinic for emergency medical treatment for injuries he sustained to his 

face, head, neck, back, left leg, and left ear. (See id. ¶ 52). He further alleges chronic injuries,

including damage to his left knee, torn rotator cuffs in both shoulders, and permanent lower back 

injury. (See id. ¶ 55). These facts support a reasonable inference that Lumpkin purposely or 

knowingly used excessive force against Plaintiff and that such force was objectively unreasonable,

in violation of the Fourteenth Amendment. Plaintiff’s excessive force claim may proceed against 

Lumpkin in his individual capacity.

Count Four: Failure to Intervene 

“[A]n officer who is present at the scene and who fails to take reasonable steps to protect 

the victim of another officer’s use of excessive force, can be held liable for his nonfeasance.” 

Crenshaw v. Lister, 556 F.3d 1283, 1293–94 (11th Cir. 2009) (alteration added; citation and 

quotation marks omitted). The Eleventh Circuit has clarified that liability for failing to intervene 

to stop the use of excessive force only arises when the officer has observed the excessive force and 

had both the time and ability to intervene in the purported use of excessive force by a fellow officer. 

See Priester v. City of Riviera Beach, 208 F.3d 919, 927 (11th Cir. 2000).

Plaintiff brings this claim against Frade in his individual capacity. (See SAC ¶ 175). 

Plaintiff alleges that Frade stood by during the April 12, 2019 beating while “Defendant Lumpkin 

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repeatedly punched Plaintiff more than 12 times in the face, head, shoulder, ear, [and] back.” (Id. 

¶¶ 179–80 (alteration added)). Liberally construed, see Douglas, 535 F.3d at 1320, Plaintiff 

alleges that Frade had the time and opportunity to intervene to stop the use of excessive force by 

Lumpkin but failed to do so. (See id. ¶¶ 180–81). These allegations support a reasonable inference 

that Frade failed to intervene in Lumpkin’s use of excessive force. Therefore, Plaintiff’s failureto-intervene claim may proceed against Frade in his individual capacity. 

Count Five: Failure to Protect 

To constitute deliberate indifference resulting from a failure to protect an inmate, the prison 

official must have subjective knowledge of the risk of serious harm and nevertheless fail to respond 

to the risk. See Murphy, 159 F. App’x at 947–48 (citation omitted). A prison official must also 

have a sufficiently culpable state of mind to be deliberately indifferent. See Carter, 352 F.3d at

1349 (citations omitted). 

Plaintiff brings this claim against Lawrence and Hamilton in their individual capacities. 

(See SAC ¶ 187). Plaintiff alleges that on April 9, 2019, he put Lawrence and Hamilton on notice, 

verbally and in written grievances, of Lumpkin’s threats to “cause physical bodily harm” against 

him. (Id. ¶ 190). Plaintiff alleges that despite this knowledge, Lawrence and Hamilton disregarded 

the risk and failed to take reasonable measures to protect him. (See id. ¶ 191). These allegations 

support a reasonable inference that Lawrence and Hamilton were deliberately indifferent in failing 

to protect Plaintiff. Plaintiff’s failure-to-protect claim may proceed against Lawrence and 

Hamilton in their individual capacities. 

Count Six: Malicious Prosecution

In an action for malicious prosecution, the plaintiff must allege: “(1) the elements of the 

common law tort of malicious prosecution; and (2) a violation of his Fourth Amendment right to 

be free from unreasonable seizures.” Grider v. City of Auburn, Ala., 618 F.3d 1240, 1256 (11th 

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Cir. 2010) (emphasis in original; citations omitted). “As to the first prong, the constituent elements 

of the common law tort of malicious prosecution are: (1) a criminal prosecution instituted or 

continued by the present defendant; (2) with malice and without probable cause; (3) that terminated 

in the plaintiff accused’s favor; and (4) caused damage to the plaintiff accused.” Id. at 1256 

(citation, quotation marks, and footnote call number omitted omitted). “As to the second prong, it 

is well established that an arrest without probable cause is an unreasonable seizure that violates 

the Fourth Amendment.” Id. (citations omitted). “[T]he existence of probable cause defeats a 

[section] 1983 malicious prosecution claim.” Id. (alterations added; citations omitted).

The SAC, like its predecessor, accuses all Defendants of malicious prosecution in Count 

Six. (Compare SAC 16 with FAC 21). The pleading deficiencies persist, as Plaintiff fails to 

connect Defendants to this claim. It remains unclear, for example, how Frade, a correctional 

officer who Plaintiff accuses of failing to protect Plaintiff from excessive force, committed the tort 

of malicious prosecution. (See SAC ¶ 179). In sum, Plaintiff continues to lump all Defendants 

together in Count Six, thereby failing to put Defendants on notice of the claim against them and 

the grounds upon which they rest. See Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 

1323 (11th Cir. 2015) (footnote call number omitted). Therefore, Plaintiff’s malicious prosecution 

claim against all Defendants is due to be dismissed as a shotgun pleading that violates the Federal 

Rules of Civil Procedure. 

For the foregoing reasons, it is ORDERED AND ADJUDGED as follows:

1. Count One: Plaintiff’s deliberate indifference claim against Lawrence, Hamilton, 

and Guerra is DISMISSED.

2. Count Two: Plaintiff’s retaliation claim against Lumpkin in his individual capacity

shall PROCEED. 

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3. Count Three: Plaintiff’s excessive force claim against Lumpkin in his individual 

capacity shall PROCEED.

4. Count Four: Plaintiff’s failure-to-intervene claim against Frade in his individual 

capacity shall PROCEED. 

5. Count Five: Plaintiff’s failure-to-protect claim against Lawrence in her individual 

capacity and Hamilton in his individual capacity shall PROCEED.

6. Count Six: Plaintiff’s malicious prosecution claim against all Defendants is

DISMISSED. 

The Clerk shall REOPEN the case. Defendants shall file their response to the Second 

Amended Complaint by February 10, 2023. The parties shall file a joint scheduling report by 

February 15, 2023. 

DONE AND ORDERED in Miami, Florida, this 27th day of January, 2023.

 _______________________________________

 CECILIA M. ALTONAGA

 CHIEF UNITED STATES DISTRICT JUDGE

cc: Plaintiff, pro se

counsel of record

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