IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JOEY ARNEZ DONALDSON,

DOC # 372350,

Plaintiff,

vs. Case No. 4:20cv76-WS-MAF

OFFICER HAWKINS, 

and OFFICER BENNETT,

Defendants.

___________________________/

FOURTH REPORT AND RECOMMENDATION1

An Initial Scheduling Order was entered in January 2022, ECF No.

89, advising that motions for summary judgment were to be filed by May

13, 2022. Two additional Orders reminded the parties of that deadline. 

 1 A Report and Recommendation was first entered on May 1, 2020, recommending

the case be dismissed for failure to prosecute. ECF No. 7. It was later vacated and

Plaintiff given more time to pay the initial partial filing fee. ECF No. 9. Another Report

and Recommendation was entered on June 4, 2021, recommending Defendant

Bennett’s motion to set aside the clerk’s default be granted. ECF No. 64. That

recommendation was adopted. ECF No. 69. A second Report and Recommendation

was entered on July 28, 2021, ECF No. 74, concerning Plaintiff’s motion for a

restraining order. The recommendation was granted and Plaintiff’s motion was denied. 

ECF No. 83. A third Report and Recommendation was entered on December 6, 2021,

ECF No. 86, recommending Defendants’ motion to dismiss the claim for declaratory

judgment be granted. That recommendation was also adopted. ECF No. 87. 

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ECF Nos. 99, 100. Only Defendants filed a summary judgment motion. 

ECF No. 106. The pro se Plaintiff was advised of his responsibility to file a

response in opposition to the motion and given until June 29, 2022, to do

so, ECF No. 107, but as of this date, no response has been filed. 

Defendants’ motion for summary judgment is unopposed. 

The Local Rules of this Court permit the Court to “grant a motion by

default if an opposing party does not file a memorandum” in opposition to a

motion. N.D. Fla. Loc. R. 7.1(H). Nevertheless, the Court has fully

reviewed Defendants’ motion, ECF No. 106, together with Plaintiff’s

complaint, ECF No. 78, which was sworn under penalty of perjury. 

Fifth Amended Complaint, ECF No. 78

Plaintiff alleged that while incarcerated in the Close Management unit

at Wakulla Correctional Institution, he was arguing with inmate Peeples.2

Id. at 3. Plaintiff alleged that Defendants came to remove him from his cell,

and while being placed in full restraints, he told the Defendants that he was

afraid of being attacked by inmate Peeples. Id. at 4. Plaintiff said that

Defendants heard Peeples threaten to stab him with a shank. Id. Plaintiff

 2 Plaintiff contends that because they were both on Close Management Level One, 

he and inmate Peeples were “housed alone.” ECF No. 78 at 3.

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was escorted by the Defendants to the “group room” and placed in a

security chair. Id. Plaintiff said that Defendants then went to Peeples’ cell

and, after searching him “to ensure he had a shank to attack the Plaintiff,”

they “loosely” put Peeples in full restraints. ECF No. 78 at 4. Plaintiff

claimed the reason Defendants “loosely” restrained Peeples was so he

“could slip his restraints.” Id. Defendants then escorted Peeples to the

group room, placed him in a chair “right next to the Plaintiff” although other

chairs were available, and then “left the Quad completely.” Id. at 5. While

they were left unsupervised, inmate Peeples “defeated his restraints,”

pulled out a shank, and repeatedly stabbed Plaintiff. Id. Plaintiff alleged

Defendants were deliberately indifferent to his safety in violation of the

Eighth Amendment. Id. at 6. 

Procedural Issue

Defendants’ motion for summary judgment presents several

defenses. ECF No. 106. Defendants contend judgment should be granted

in their favor because Plaintiff’s allegations are contradicted by prior

statements, Plaintiff cannot submit evidence showing that any Defendant

knew ahead of time that inmate Peeples was a threat to Plaintiff, and they

state that Defendants did not have an opportunity to intervene because

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they were not present when the incident occurred. Id. at 16-20. Further,

Defendants claim they are entitled to qualified immunity. Id. at 20-21. 

Notably, Defendants also argue that Plaintiff failed to exhaust his

administrative remedies. Id. at 6-11. It is true that exhaustion is required

and is mandated by federal law - 42 U.S.C. § 1997e(a). Jones v. Bock,

549 U.S. 199, 216, 127 S.Ct. 910, 921, 166 L.Ed.2d 798 (2007); Brooks v.

Warden, 706 F. App’x 965, 968 (11th Cir. 2017). An “exhaustion defense

should be raised in a motion to dismiss under Rule 12(b).” Bryant v. Rich,

530 F.3d 1368, 1374-75 (11th Cir. 2008) (quoted in Brooks, 706 F. App’x at

968). 

On October 14, 2021, Defendants filed a motion to dismiss. ECF No.

84. That motion did not argue that Plaintiff failed to exhaust administrative

remedies but, instead, Defendants asserted only that Plaintiff was not

entitled to declaratory relief as Defendants3

 were protected by Eleventh

Amendment immunity. Id. at 4-5. That argument was rejected because

Defendants were sued only in their individual capacities and Eleventh

Amendment immunity is only applicable to official capacity claims. ECF

No. 86 at 4. Notwithstanding, Plaintiff did not allege facts showing a

 3 Defendants also did not raise the exhaustion defense in their answer. ECF No. 90.

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substantial likelihood of future injury by the Defendants. Thus, Plaintiff’s

request for declaratory relief was dismissed. Id. at 7; ECF No. 87. 

Rule 12(g)(2) of the Federal Rules of Civil Procedure limits “defenses

that can be raised for the first time in a second or successive motion to

dismiss under Rule 12.” Brooks, 706 F. App’x at 968. “Specifically, the

rule says: ‘Except as provided in Rule 12(h)(2) or (3), a party that makes a

motion under this rule must not make another motion under this rule raising

a defense or objection that was available to the party but omitted from its

earlier motion.’” Fed. R. Civ. P. 12(g)(2) (quoted in 706 F. App’x at 968). 

Thus, “a party cannot raise a defense in a second Rule 12 motion that it

failed to raise in its first Rule 12 motion.” 706 F. App’x at 968; see also

Ford v. Hayes, No. 3:15-CV-907-J-32JRK, 2018 WL 3831167, at *6, n.8

(M.D. Fla. Aug. 13, 2018) (finding that defendants “forfeited the right to

raise the defense in a subsequent motion” to dismiss); Oliver v. Whitehead,

No. 3:14-CV-1506-J-39JRK, 2017 WL 5187752, at *2 (M.D. Fla. Nov. 9,

2017) (rejecting exhaustion defense raised in summary judgment motion

because it was not raised in prior motion). 

In this case, Defendants cannot raise the affirmative defense of

exhaustion in their motion for summary judgment since they previously filed

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a motion to dismiss which failed to raise this issue. Brooks, 706 F. App’x at

969 (holding that untimely exhaustion defense was procedurally barred

under Rule 12(g)(2) because it was not raised in the first motion to

dismiss). This part of the motion for summary judgment, ECF No. 106,

should be denied.

Standard of Review

“The 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). As

noted above, the parties were provided adequate time to conduct

discovery. 

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

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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 show4

 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). 

An 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

 4 "Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings and by

her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on

file,' designate 'specific facts showing that there is a genuine issue for trial.' " Owen v.

Wille, 117 F.3d 1235, 1236 (11th Cir. 1997), cert. denied 522 U.S. 1126 (1998) (quoting

Celotex, 477 U.S. at 324, 106 S. Ct. at 2553) (quoting Fed. R. Civ. P. 56(c), (e))). The

nonmoving party need not produce evidence in a form that would be admissible as Rule

56(e) permits opposition to a summary judgment motion by any of the kinds of

evidentiary materials listed in Rule 56(c). Owen, 117 F.3d at 1236; Celotex, 477 U.S. at

324, 106 S. Ct. at 2553.

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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)). All reasonable inferences must be resolved in the light most

favorable to the nonmoving party, Sconiers v. Lockhart, 946 F.3d 1256,

1262-63 (11th Cir. 2020), and 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)). 

“Summary judgment is not a time for fact-finding; that task is reserved

for trial.” Sconiers, 946 F.3d at 1263 (11th Cir. 2020) (citing Tolan v.

Cotton, 572 U.S. 650, 655-57, 134 S. Ct. 1861, 188 L. Ed. 2d 895 (2014)). 

“[A]t 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, 477 U.S. at 249, 106

S. Ct. at 2511 (quoted in Sears v. Roberts, 922 F.3d 1199, 1205 (11th Cir.

2019)). 

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Rule 56 Evidence5

Defendants submitted an Incident Report for January 22, 2019. ECF

No. 106-4. It reveals that Plaintiff and inmate Spencer Peeples were in the

01 Group Room of the Oscar Dormitory. Id. As Sergeant Jason Horton

was walking in the Sally Port area towards the wing, he saw that inmate

Peeples had “slipped one hand free of his restraints.” Id. Peeples stabbed

Plaintiff “in the back of the head and left hand multiple times.” Id. Sergeant

Horton entered the room and ordered Peeples to drop his weapon. Id. He

complied and hand restraints were applied. Id. Peeples received a

disciplinary report for “battery or attempted battery on” another inmate, as

well as “possession of a weapon.” Id. Plaintiff was taken to “medical and

treated for non-life threatening injuries.” Id. Plaintiff “had nine puncture

wounds to his left hand and four puncture wounds to the back of his head

and neck.” Id. Staff were informed that Plaintiff and inmate Peeples

should not “be removed from their cells at the same time.” Id. 

 5 Defendants provided only the barest of statements of “material undisputed facts” -

one sentence that “Plaintiff was attacked an injured by another inmate on January 22,

2019.” ECF No. 106 at 4. That sentence lacks any information concerning the

Defendants. Despite Defendants’ failure, the Court has reviewed the evidence provided

with the motion to more appropriately determine the relevant facts and decide if there is

an issue for trial.

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Defendant Michael Hawkins submitted a declaration6 in support of the

summary judgment motion. ECF No. 106-6. He disputes the factual

allegations presented by Plaintiff in his fifth amended complaint and states

they “are not true.” Id. at 1. 

Defendant Hawkins states that inmate Peeples was escorted into the

O-dormitory group room in restraints. Id. Plaintiff was already present in

that room. Id. Defendant Hawkins said that he did not hear Peeples

threaten the Plaintiff, and did not know he had a weapon. Id. at 2. Further,

the Defendant states that he did not search Peeples “to make sure he had

a weapon on him” nor did he seat him next to Plaintiff to ensure he could

stab the Plaintiff. Id. Defendant Hawkins also declares that Plaintiff never

told him that he was afraid of inmate Peeples. Id. Finally, Defendant said

that he “did not know” that Peeples could break free of his restraints or that

he would stab the Plaintiff. Id. 

Although Plaintiff did not respond to the summary judgment motion,

his fifth amended complaint was submitted under penalty of perjury. ECF

 6 The index to exhibits lists a declaration by Defendant Hawkins (Exhibit F) and a

declaration by Defendant Bennett (Exhibit E). ECF No. 106 at 23. Exhibit E, however,

is blank and, thus, no declaration has been filed for Defendant Bennett. ECF No. 106-5.

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No. 78 at 8. Plaintiff’s sworn allegations may be considered as evidence in

ruling on Defendants’ summary judgment motion.7

 

Plaintiff said that when inmate Peeples threatened to stab him with a

shank, “Defendants heard this threat.” ECF No. 78 at 4. Plaintiff said he

told the Defendants when they removed him from his cell that he was afraid

of being attacked by Peeples. Id. Defendants took him to the group room

and secured him in a “security chair.” Id. Defendants then brought inmate

Peeples to the room and placed him in a chair right next to Plaintiff even

though there were other chairs farther away from Plaintiff. Id. at 5. 

Defendants then left the Quad. Id. While unsupervised, inmate Peeples

repeatedly stabbed Plaintiff in the head, neck, and left hand. Id. 

Analysis

The Eighth Amendment governs the conditions under which

convicted prisoners are confined and the treatment they receive while in

prison. Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L. Ed.

 7 Statements made by a plaintiff in a verified complaint, sworn response to a motion

for summary judgment, or sworn affidavit are properly treated as testimony in ruling on a

summary judgment motion. Sears v. Roberts, 922 F.3d 1199, 1206 (11th Cir. 2019)

(citing United States v. Stein, 881 F.3d 853, 857 (11th Cir. 2018) (noting that “a litigant’s

self-serving statements based on personal knowledge or observation can defeat

summary judgment.”)). Notwithstanding, only those statements which were based on

personal knowledge have been credited as evidence. 

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2d 811 (1994). Although the Amendment does not require comfortable

prisons, it does prohibit inhumane ones. Id. The Eighth Amendment8

guarantees that prisoners will not be “deprive[d] ... of the minimal civilized

measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347,

101 S. Ct. 2392, 2399, 69 L. Ed. 2d 59 (1981) (quoted in Chandler v.

Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004)). Those “necessities include

food, clothing, shelter, sanitation, medical care, and personal safety.” 

Harris v. Thigpen, 941 F.2d 1495, 1511 (11th Cir. 1991) (cited in Collins v.

Homestead Corr’l Inst., 452 F.App’x 848, 850-851 (11th Cir. 2011)). 

In guaranteeing an inmate’s safety, the Eighth Amendment “imposes

a duty on prison officials to provide ‘humane conditions of confinement,’

and to ‘take reasonable measures to guarantee the safety of the inmates.’” 

Bugge v. Roberts, 430 F. App’x 753, 757 (11th Cir. 2011) (quoting Farmer,

511 U.S. at 832). “[P]rison officials have a duty ‘to protect prisoners from

 8 “In the prison context, three distinct Eighth Amendment claims are available to

plaintiff inmates alleging cruel and unusual punishment, each of which requires a

different showing to establish a constitutional violation.” Thomas v. Bryant, 614 F.3d

1288, 1303-04 (11th Cir. 2010). One claim concerns the conditions of confinement,

another challenges the unnecessary and excessive use of force, and the third claim is

for deliberate indifference. In the deliberate indifference context, there are two varieties

of such claims: deliberate indifference to medical needs and deliberate indifference to a

sufficiently serious risk of harm. See Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50

L. Ed. 2d 251 (1976), and Rhodes v. Chapman, 452 U.S. 337, 345, 101 S. Ct. 2392,

2398, 69 L. Ed. 2d 59 (1981). 

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violence at the hands of other prisoners.’” Bugge, 430 F. App’x at 757

(quoting Farmer, 511 U.S. at 833). “A prison official violates the Eighth

Amendment’s prohibition against cruel and unusual punishment if [the

official] is deliberately indifferent to a substantial risk of serious harm to an

inmate who suffers injury.” Marbury v. Warden, 936 F.3d 1227, 1233 (11th

Cir. 2019) (citation omitted); see also Q.F. v. Daniel, 768 F. App’x 935, 944

(11th Cir. 2019) (finding that a prison inmate has a constitutional right to be

protected from threats of violence and physical assault by other inmates,

citing Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir. 1986)). However,

not “every injury suffered by one prisoner at the hands of another” means

that prison officials should be held liable. Purcell ex rel. Estate of Morgan

v. Toombs Cty., Ga, 400 F.3d 1313, 1319 (11th Cir. 2005) (quoting Farmer,

511 U.S. at 834). “[A] prison official who was unaware of a substantial risk

of harm to an inmate” cannot be held liable under the Eighth Amendment. 

Farmer, 511 U.S. at 842, 114 S. Ct. at 1981.

In the case of a prisoner who claims that prison officials failed to

protect them, there is both an objective component and a subjective

component. Helling v. McKinney, 509 U.S. 25, 30, 113 S. Ct. 2475, 2479,

125 L. Ed. 2d 22 (1993); see also Hudson v. McMillian, 503 U.S. 1, 8, 112

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S. Ct. 995, 999-1000, 117 L. Ed. 2d 156 (1992); Q.F., 768 F. App’x at 944. 

An inmate must first “show that he is incarcerated under conditions posing

a substantial risk of serious harm.” Farmer, 511 U.S. at 834, 114 S. Ct. at

1977 (citing to Helling, 509 U.S. at 35, 113 S. Ct. at 2481). Second, the

inmate must show that prison officials knew of and disregarded an

excessive risk to inmate health or safety. Farmer, 511 U.S. at 837, 114 S.

Ct. at 1979. There must be evidence to show that Defendants were

deliberately indifferent to an “excessive risk” to his safety. 511 U.S. at 837,

114 S. Ct. at 1979. Put simply, a prisoner must show that a defendant

prison official was “aware of facts from which the inference could be drawn

that a substantial risk of serious harm exists, and he must also draw the

inference.” 511 U.S. at 837, 114 S. Ct. at 1979. “The known risk of injury

must be ‘a strong likelihood, rather than a mere possibility’ before a guard’s

failure to act can constitute deliberate indifference.” Brown v. Hughes, 894

F.2d 1533, 1537 (11th Cir. 1990) (citations omitted).

Here, Plaintiff’s sworn complaint is sufficient evidence to show that he

was “incarcerated under conditions posing a substantial risk of serious

harm.” According to Plaintiff, Defendants were aware that inmate Peeples

had threatened to stab him because Defendants heard the threat. Plaintiff

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also told the Defendants that he was afraid of Peeples. Notably, Defendant

Hawkins declared that he did not hear Peeples threaten the Plaintiff and he

denies that Plaintiff reported his fear of Peeples. That issue creates a

dispute of fact on this first element of Plaintiff’s claim. However, the

dispute over this issue is not case dispositive. 

Defendant Hawkins also said he did not know inmate Peeples had a

weapon, did not “make sure he had a weapon on him,” and did not seat

Peeples next to Plaintiff so he could stab him. Moreover, Defendant said

he “did not know” that Peeples could break free of his restraints or try to

stab Plaintiff. Plaintiff’s sworn allegations in the complaint are insufficient

to raise a genuine dispute as to those events. That is so because Rule

56(c) requires that an affidavit be “made on personal knowledge, set out

facts that would be admissible in evidence, and show that the affiant or

declarant is competent to testify on the matters stated.” United States v.

Stein, 881 F.3d 853, 858 (11th Cir. 2018). The sworn statements made by

Plaintiff in his complaint may be construed as an affidavit, but only to the

degree Plaintiff provided facts based on his “personal knowledge.”

In Pace v. Capobianco, 283 F.3d 1275, 1280-81 (11th Cir. 2002), the

Eleventh Circuit found that a witness’s affidavit was “inadequate to create

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an issue of fact” at the summary judgment stage. The reason was, Willie

Hedge, the witness, had a “view of events” that was “incomplete.” Pace,

283 F.3d at 1280. Therefore, Mr. Hedge’s affidavit presented a “conclusory

opinion” that was not based on personal knowledge. Id. at 1280-81. 

The same problem exists in this case. Plaintiff’s sworn allegations

make clear that all of the Defendants actions with inmate Peeples occurred

after Plaintiff was restrained in the security chair in the group room. 

Plaintiff said that the Defendants went to Peeples’ cell, searched him there

to ensure he had a shank, then “loosely” put Peeples in full restraints. ECF

No. 78 at 4. However, Plaintiff has not shown that he had personal

knowledge about those events because Plaintiff has not explained how he

could see what was happening in inmate Peeples’ cell from his location in

the group room. See Rhiner v. Sec'y, Fla. Dep't of Corr., 817 F. App’x 769,

778 (11th Cir. 2020) (“Rhiner failed to show that his wounds actually were

caused by a razor because: (1) he was unconscious during the assault and

could not have seen the weapon that his assailants used to cut him”).

“An affidavit or declaration used to support or oppose a motion [for

summary judgment] must be made on personal knowledge, set out facts

that would be admissible in evidence, and show that the affiant or declarant

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is competent to testify on the matters stated.” Am. Heritage Life Ins. Co. v.

Johnston, No. 21-12121, 2022 WL 30175, at *2 (11th Cir. Jan. 4, 2022)

(citing Fed. R. Civ. P. 56(c)(4)); see also Corwin v. Walt Disney World Co.,

475 F.3d 1239, 1249 (11th Cir. 2007) (“Even on summary judgment, a

court is not obligated to take as true testimony that is not based upon

personal knowledge.” (quotation omitted)); “Ferreira-Silva v. AW Pro. &

Maint. Serv., Inc., No. 0:21-CV-61442-KMM, 2022 WL 2438156, at *8 (S.D.

Fla. June 5, 2022) (stating “affidavits cannot be conclusory and must be

based on personal knowledge, not speculation”); Rodda v. Univ. of Miami,

542 F. Supp. 3d 1289, 1299 (S.D. Fla. 2021) (holding that a “conclusory

affidavit” that “fails to demonstrate that the facts presented in the affidavit

are based on personal knowledge beyond mere speculation or belief” is

insufficient to defeat a summary judgment motion). Because Plaintiff’s

sworn statements fail to provide any basis to show how he had personal

knowledge of what transpired in inmate Peeples cell when Plaintiff was

located in the group room, they must be deemed to be speculation only. 

Thus, Defendants’ evidence on the second element of Plaintiff’s claim

is undisputed. There is no evidence to show Defendants knew inmate

Peeples had a weapon, was seated next to Plaintiff so he could be

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stabbed, that his restraints were loose, or that Peeples could break free of

them. Thus, Plaintiff has not shown that the Defendants “knew of and

disregarded an excessive risk to inmate health or safety.” Farmer, 511

U.S. at 837, 114 S. Ct. at 1979. 

There are some inferences which could be made from the fact that

Peeples was able to slip his restraint and stab Plaintiff. Obviously the

restraint was loose, but Plaintiff has not shown Defendants knew that. 

Peeples also had a weapon which should have been discovered if

Defendants had properly searched him. But a finding of “deliberate

indifference” requires more than an inference that Defendants “should have

known.” Franklin v. Curry, 738 F.3d 1246, 1250 (11th Cir. 2013) (finding

plaintiff’s allegations that the supervisory officers “knew or should have

known of Officer Gay's pattern of inappropriate conduct” was insufficient to

meet the deliberate indifference standard). Rather, a deliberate

indifference claim requires evidence which shows the Defendants “actually

knew” of facts from which an inference could be made that a “substantial

risk of serious harm exists, and he must also draw the inference.” Franklin,

738 F.3d at 1250 (quoting Goodman v. Kimbrough, 718 F.3d 1325, 1332

(11th Cir. 2013)). Plaintiff has not made that showing.

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Accordingly, while there is some evidence to show that Plaintiff was

at a risk of harm from inmate Peeples, there is insufficient evidence to

show that merely placing Peeples, who was restrained, in a chair next to

Plaintiff, who was also restrained, would result in an “excessive risk to”

Plaintiff’s safety. In the usual case, an inmate whose hands are restrained

is unable to stab another inmate sitting in a chair. Plaintiff did not come

forward with evidence to demonstrate that this unusual case is a matter of

deliberate indifference. “Defendants arguably should have placed Plaintiff

elsewhere” - in a chair farther away from inmate Peeples - but “merely

negligent failure9

 to protect an inmate from attack does not justify liability

under section 1983....” Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir.

1990) (quoted in Carter v. Galloway, 352 F.3d 1346, 1350 (11th Cir.

2003)). That is true even when one negligent act is followed by another

negligent act. The motion for summary judgment motion should be granted

in Defendants’ favor. 

 9 Indeed, Plaintiff alleged in his original complaint that Defendants “neglected to do

their job” in searching inmate Peeples and in properly restraining him. ECF No. 1 at 6. 

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RECOMMENDATION

It is respectfully RECOMMENDED that Defendants’ motion for

summary judgment, ECF No. 106, be GRANTED and judgment entered in

Defendants’ favor. 

IN CHAMBERS at Tallahassee, Florida, on August 9, 2022.

 S/ Martin A. Fitzpatrick 

MARTIN A. FITZPATRICK

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Within fourteen (14) days after being served with a copy of this

Report and Recommendation, a party may serve and file specific written

objections to these proposed findings and recommendations. Fed. R.

Civ. P. 72(b)(2). A copy of the objections shall be served upon all other

parties. A party may respond to another party’s objections within

fourteen (14) days after being served with a copy thereof. Fed. R. Civ.

P. 72(b)(2). Any different deadline that may appear on the electronic

docket is for the Court’s internal use only and does not control. If a

party fails to object to the Magistrate Judge’s findings or

recommendations as to any particular claim or issue contained in this

Report and Recommendation, that party waives the right to challenge on

appeal the District Court’s order based on the unobjected-to factual and

legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.

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