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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

ROBERT SINCLAIR LEE,

Plaintiff,

v. Case No. 3:20cv5462-MCR-HTC

LIEUTENANT T. MCCRANIE, 

et al., 

Defendants.

____________________________/

ORDER and REPORT AND RECOMMENDATION

This matter is before the Court on competing motions for summary judgment. 

Plaintiff filed a motion and amended motion for summary judgment, ECF Docs. 49 

and 51, to which Defendants responded, ECF Doc. 59. Defendants filed an amended 

motion for partial summary judgment, ECF Doc. 53, to which Plaintiff responded, 

ECF Doc. 63. The matter was referred to the undersigned Magistrate Judge for 

preliminary screening and report and recommendation pursuant to 28 U.S.C. § 636 

and N.D. Fla. Loc. R. 72.2(C). Upon review and careful consideration of the parties’ 

submissions, the undersigned recommends the Defendants’ motion be GRANTED,

Plaintiff’s motions be DENIED, and the matter referred back to the undersigned.

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I. BACKGROUND

Plaintiff, a prisoner serving a life sentence at Santa Rosa Correctional 

Institution (“Santa Rosa CI”), filed an amended complaint, ECF Doc. 6, complaining 

of a property restriction, use of chemical agents, strip search, cell extraction, and 

subsequent medical care that occurred on September 4, 2019. Plaintiff sues several 

SCRI officers: Lieutenant McCranie,1 Lieutenant Dice, Sergeant Richburg, Officer 

Tona, Officer Jones, Officer Boatwright, Sergeant Cattnach, and two (2) John Doe 

Officers. 

In support of his motions, Plaintiff relies upon his sworn amended complaint, 

ECF Doc. 6, a general affidavit, ECF Doc. 49, a sworn Declaration, ECF Doc. 51, 

and the following materials: the interrogatory responses of McCranie and Dice;

Plaintiff’s emergency room record of September 4, 2019; the Use of Force Incident 

Report of Officer Eiland and the other officers involved; and Plaintiff’s grievances

regarding the incident (ECF Doc. 51). Plaintiff relies on similar evidence in 

opposition to Defendants’ motion. ECF Doc. 63. 

In support of their motion, Defendants rely upon the following: (1) the FDOC 

MINS Incident Report; (2) The Authorization for Use of Force by Major Oakes; and 

1 The documentation signed by this Defendant in the record indicates that his proper last name is 

“McCranie” not “McCraine”. See, e.g., Authorization for Use of Force, ECF Doc. 59-2 (Signed 

by Lt. McCranie, Sept. 4, 2019). The clerk is directed to change this Defendant’s last name to 

“MCCRANIE” in CMECF.

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(3)-(9) the Use of Force Incident Reports from Officers Richburg, Cattnach, Tona, 

Eiland, Dice, Boatwright, and Jones. ECF Doc. 59.

A. Plaintiff’s Version

As taken from the amended complaint, affidavits and declaration submitted 

by Plaintiff, Plaintiff offers the following version of the September 4 events: 

McCranie and Tona approached Plaintiff’s cell and told him he was being 

placed on property restriction and needed to “cuff-up or run-it.” ECF Doc. 6 at 8. 

When Plaintiff inquired why he was being placed on property restriction, “no reason 

was given.” Id.; ECF Doc. 49 at 3. Minutes later, a psychological counselor named 

Adams came to Plaintiff’s cell to conduct a Crisis Intervention (which Plaintiff calls 

a “CIT”) due to Plaintiff’s mental health status in prison health records. ECF Doc. 

49 at 3. Adams advised Plaintiff to cuff up because “[Plaintiff] know[s] what they 

want to do to [him]!” and told Plaintiff that once she left, “there’s nothing she can 

do.” Id. 

McCranie then chained the door with Boatwright holding the portable camera. 

Id. With McCranie, Boatwright and Cattnach present, “they” announced that 

chemical agents were going to be applied on Plaintiff for refusing a verbal order. 

ECF Doc. 6 at 8. Officer Eiland, authorized by Lt. McCranie, then administered

three long bursts of chemical agent while Tona was present holding a plexiglass 

shield. ECF Doc. 49 at 3. The bursts were “longer usage than normal.” ECF Doc. 

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6 at 8. Lt. Dice then approached Plaintiff’s back window off camera and told

Plaintiff he had orders to send in the extraction team to teach Plaintiff a lesson. ECF 

Doc. 6 at 8. Dice then ordered an unknown officer to apply a second round of 

chemical agents, and then McCranie applied a final round of chemical agents. ECF 

Doc. 6 at 8-9. 

McCranie then had Nurse Jobst explain to Plaintiff the need for a 

decontamination shower after the use of chemical agents, and the nurse did so. ECF 

Doc. 49 at 3-4. Plaintiff was asked if he was going to comply with being showered 

and was directed to submit to a strip search by removing all of his clothing. Id. at 4. 

Plaintiff agreed and did so, throwing his clothing at McCranie’s feet. Id.

Nevertheless, McCranie ordered the cell extraction team be assembled. Id.; ECF 

Doc. 6 at 9.

When the cell extraction team arrived, Plaintiff put his mattress on the floor, 

put his hands locked behind his head, and laid down. ECF Doc. 49 at 4. He was not 

causing a threat or harm to himself or staff and told the cell extraction team and Dice 

and McCranie that he was willing to submit. Id.; ECF Doc. 6 at 9. Nevertheless, 

McCranie opened the cell door and the extraction team rushed inside. 

The extraction team pounced on Plaintiff with the shield and pinned him to 

the mattress. Id. at 10. Defendants struck Plaintiff with closed fists in his head and 

upper body region from the back; Richburg and Cattnach clawed out Plaintiff's eyes 

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with fingers which had chemical agent on them; a John Doe defendant bent 

Plaintiff’s fingers and thumb on right hand "snapping both in the process"; different 

defendants were striking Plaintiff "at all different angles (choking, punching, & 

kicking him); "handcuffs were placed on plaintiff, but the beating continued" by 

Cattnach, Richburg, Tona, John Doe 1, John Doe 2; while this was happening, 

McCranie, Dice, Tona, Richburg, and Cattnach were chanting "stop resisting" 

(although Plaintiff was already not resisting). ECF Doc. 6 at 9-10. Richburg “out 

of nowhere” struck Plaintiff with set of handcuffs in left ear, eye and head several 

times, then passed them to Cattnach, who struck Plaintiff on the right side of his 

head. Id. at 10-11. 

When Lee complained about being hit with handcuffs, McCranie and Dice 

stated Plaintiff "needs to cuff up then." Dice and McCranie blocked the camera 

view, to prevent the abuse from being filmed, and did nothing to stop the beating or 

intervene. Id. at 11. Richburg kicked Plaintiff in the face several times while other 

Defendants were holding him and beating him. A John Doe defendant, while trying

to remove Plaintiff’s boxers, twisted his left foot trying to break it. Meanwhile, 

Jones and Boatwright did nothing to intervene despite standing witness, and Dice 

and McCranie asked, for sake of faking it for the camera, if Plaintiff Lee was cuffed 

yet, so "they" made the cuffs tighter. Id.

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After Plaintiff was subdued, he was stripped naked outside of the shower, so 

that he was visible to staff (including a female) and inmates. During the search after 

the removal of his boxers, Richburg "brushe[d] hand up and down Plaintiff's buttock 

from top to bottom with pressure added to it." Defendants told Lee “it could have 

been worse” and “this is what we do to non-cooperative inmates.” Id. at 11. 

After the shower, Plaintiff was made to walk with his head to his knees in 

order to hide his injuries from the camera. Id. Plaintiff was treated for some of his 

injuries at medical “(water in eyes, washing out ear cut inside ear).” The nurse told 

Defendants, "he's banged up really bad" and recommended to Cattnach, Richburg, 

McCranie and Dice that Plaintiff needed to see the doctor to have his ear glued 

closed. Dice and Richburg refused, saying it was "count time." Id.

Plaintiff’s eye was completely shut, and the nurse cleaned his head injuries 

from being hit by handcuffs by Richburg and Cattnach. She stated, "looks like you 

got hit with something" and looked at the supervisors with a "mean look”, to which 

Richburg stated, "that's what we do to inmates when we have to use force during cell 

extraction." Tona or Cattnach then said, "You're lucky the camera was present", and

McCranie told Lee he should have submitted to hand restraints from the beginning 

and that would have never happened to him. Id. at 11-12.

Lee was escorted back to the cell where he declared a medical emergency due 

to his eye and ear injuries, and Jones said he would get the nurse, but Jones did not 

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get the nurse or doctor. Eventually, Plaintiff saw the nurse, and Nurse Jobst 

informed Plaintiff that “incident reports from all defendants . . . have not been turned 

in timely b/c medical file is missing on 9/10/2019.” Id. at 12.

B. Defendants’ Version

Defendants’ version of the events concurs with many aspects of Plaintiff’s but 

differs, of course, on the motivation for the events and the reasonableness of the 

force applied. In his sworn Use of Force Incident Report, Officer Eiland states the 

event was precipitated because Plaintiff was to “be placed on property restriction for 

failure to store his state and personal property.” ECF Doc. 59-6. In his answers to 

interrogatories, McCranie states the reason for the property restriction was “because 

the inmate’s room was in disarray.” ECF Doc. 51 at 15. Eiland also asserted that 

Plaintiff created a “disturbance by refusing to submit to a strip search, submit to 

wrist restraints and exit his cell for a cell search” needed as part of being placed on 

property restriction. ECF Doc. 59-6. Tona and McCranie were then called to assist, 

ECF Doc. 51 at 15, and McCranie contacted Major Oakes for authorization to use 

chemical agents and force. Id. at 17.

In his Authorization for Use of Force form, ECF Doc. 59-2, Major Oakes

states he authorized the use of chemical agents and the extraction team. Major Oakes 

explains as follows: On September 4, 2019, at approximately 1:55pm, Major Oakes

was contacted by Lieutenant Tyler McCranie concerning Plaintiff. Lieutenant 

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McCranie advised Oakes that Plaintiff was in his cell, refusing to submit to a strip 

search, submit to wrist restraints and exit his cell for a cell search and to be placed 

on property restriction. Oakes was informed that due to Plaintiff's mental health 

level a CIT was necessary, and one was conducted by Mental Health Professional 

Adams with negative results. Id. at 1. Oakes then authorized the organized use of 

chemical agent “OC”, if necessary, “to quell the disturbance Plaintiff was creating 

and to overcome his physical resistance to lawful commands.” Id.

At approximately 2:25pm, McCranie returned to Oakes and informed him that 

Plaintiff continued to refuse orders to submit to a strip search, submit to wrist 

restraints, and exit his cell for a cell search and to be placed on property restriction 

following two applications of chemical agents. Oakes then authorized the use of 

chemical agent “CS” if necessary, to overcome Plaintiff's physical resistance to 

lawful commands. Id.

At approximately 2:40pm, McCranie informed Oakes that, “following two 

applications of chemical agent OC, and one application of chemical agent CS, 

Plaintiff was refus[ing] orders to submit to a strip search, submit to wrist restraints, 

and exit his cell for a cell search and to be placed on property restriction.” Id. In his 

Interrogatory Responses, McCranie explains that while Plaintiff did remove his shirt 

and pants in response to the strip search order, Plaintiff “refused to remove his boxers 

and submit to an unclothed search as ordered.” Id. at 18. Oakes thus authorized “the 

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use of the Forced Cell Extraction Team, if necessary, to overcome Plaintiff's physical 

resistance to lawful commands.” Id.

Each of the officers present during the cell extraction filed sworn Use of Force 

Incident reports. See ECF Docs. 51 or 59. For example, Richburg stated he was 

called to the Cell Extraction Ready Room and donned cell extraction gear. ECF 

Doc. 59-3. With Jones recording with a handheld video camera, Richburg stated his 

name and extraction role to the camera. The team assembled in front of Plaintiff’s 

cell, and Richburg observed that Plaintiff “refused all orders to receive his required 

cool water decontamination shower, and refused all verbal orders to submit to a strip 

search, wrist restraints and exit the cell to be placed on property restriction.” Id. at 

1. Once the team was ordered to enter the cell, Richburg explains the procedure was 

executed as follows:

Officer Miller utilized downward pressure with the shield to redirect 

Inmate Lee to a prone position on the floor. Once on the ground, Inmate 

Lee continued to resist staff. Officer Cattnach and I then utilized 

downward pressure and pulling force on Inmate Lee’s upper 

extremities to place his hands behind his back and secure Inmate Lee 

in wrist restraints. Officer Tona and Sergeant Williams utilized 

downward pressure on Inmate Lee’s lower extremities to gain control 

of Inmate Lee and secure Inmate Lee in leg restraints. At this time 

Inmate Lee became compliant and all force ceased.

Id. The sworn Use of Force Reports of Cattnach and Tona, ECF Docs. 59-4 and 59-

5, are essentially identical to the above, as is that of Officer Williams, ECF Doc. 51 

at 33. The sworn report of Officer Miller is also identical except that it added that 

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Richburg and Miller escorted Plaintiff to a cold-water decontamination shower, to 

the medical room and then back to his decontaminated cell. ECF Doc. 51 at 29. 

II. LEGAL STANDARDS ON SUMMARY JUDGMENT

Summary judgment may only be granted when “the pleadings, depositions, 

answers to interrogatories, and admissions on file, together with the affidavits, if 

any, show that there is no genuine issue as to any material fact and that the moving 

party is entitled to summary judgment as a matter of law.” Fed. R. Civ. P. 56(c). The 

“purpose of summary judgment is to pierce the pleadings and to assess the proof in 

order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co., 

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting the Advisory 

Committee's note to Fed. R. Civ. P. 56). “[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 [record before the court] which it 

believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. 

v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non-movant to 

establish, by going beyond the pleadings, that there is indeed a genuine issue as to 

the material facts its case. Thompson v. Metro. Multi–List, Inc., 934 F.2d 1566, 1583 

n.16 (11th Cir. 1991); Chanel, Inc. v. Italian Activewear of Fla., Inc., 931 F.2d 1472, 

1477 (11th Cir. 1991). A dispute of material fact “is ‘genuine’ ... [only] if the 

evidence is such that a reasonable jury could return a verdict for the non-moving 

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party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also 

Matsushita, 475 U.S. at 587.

When ruling on the motion, the Court must view all the evidence in the record 

in the light most favorable to the non-moving party and resolve all factual disputes 

in the non-moving party's favor. Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th 

Cir. 1992); Ryder Int'l Corp. v. First Am. Nat'l Bank, 943 F.2d 1521, 1523 (11th Cir. 

1991). The Court must avoid weighing conflicting evidence. Liberty Lobby, 477 

U.S. at 255; McKenzie v. Davenport–Harris Funeral Home, 834 F.2d 930, 934 (11th 

Cir. 1987). Nevertheless, the non-moving party's response to the motion for 

summary judgment must consist of more than conclusory allegations, and a mere 

“scintilla” of evidence will not suffice. Walker v. Darby, 911 F.2d 1573, 1577 (11th 

Cir. 1990); Pepper v. Coates, 887 F.2d 1493, 1498 (11th Cir. 1989). But where a 

reasonable fact finder may “draw more than one inference from the facts, and that 

inference creates a genuine issue of material fact, then the court should refuse to 

grant summary judgment.” Barfield v. Brierton, 883 F.2d 923, 933–34 (11th Cir. 

1989) (citation omitted). The essential question is “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.” Anderson, 477 U.S. at 251–52.

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III. THE AMENDED COMPLAINT

In the amended complaint’s “Statement of Claims” section, Plaintiff lists 

seventeen (17) numbered claims for relief, which can be divided into the following 

categories. ECF Doc. 6 at 13-14.

Eighth Amendment excessive force:

Claim 1: Tona, Cattnach, Richburg, and two John Does used excessive force 

on Lee during cell extraction

Claim 3: Dice and McCranie failed to intervene to stop excessive force during 

cell extraction

Claim 4: Richburg and Cattnach used excessive force in striking him with 

handcuffs

Claim 5: McCranie and Dice blocked the view of the camera (and re-alleges 

their failure to intervene) facilitating the excessive force

Claim 6: McCranie and Dice used excessive force with chemical agents prior 

to the cell extraction

Claim 9: Richburg used excessive force when he stood in front of Plaintiff 

and kicked him in the face during the cell extraction

Claim 15: All nine defendants organized this abuse without due process of 

law

Claim 17: Richburg and Cattnach used excessive force in clawing out his eyes 

with fingers covered with chemical agents

Fourth Amendment unreasonable search and seizure:

Claim 16: McCranie ordered Richburg to strip Plaintiff in front of inmates and 

staff including females, in violation of Fourth Amendment restriction on 

unreasonable searches and seizures

Property Restriction:

Claim 2: McCranie, Dice, Tona, Cattnach, Richburg, and the two Does 

deprived him of his property in violation of his 14th and 4th amendment rights

Claim 7: McCranie and Tona deprived him of due process for putting him on 

property restriction without a valid reason

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Statements Made by Defendants:

Claim 8: McCranie violated due process when she stated “if you had cuffed 

up this would have never happened.”

Claim 10: McCranie, Dice, Richburg, Tona, Cattnach, and the two John Does 

violated his Fourth Amendment rights by chanting “Stop resisting” when he 

was already restrained.

Claim 11: Dice violated the Eighth and Fourteenth Amendments by 

approaching the back window (out of camera view) and telling him that he 

had orders to send the extraction team to “teach Lee a lesson”

Incident Reports:

Claim 14: All nine defendants violated his due process rights by failing to 

turn in timely incident reports

Deliberate indifferent to serious medical needs:

Claim 12: Dice, McCranie, Richburg, Tona and Cattnach were deliberately 

indifferent to his medical needs by refusing to let him see a doctor

Claim 13: C. Jones was deliberately indifferent to his medical needs when Lee 

declared a medical emergency, but Jones failed to honor that by bringing over 

a nurse and then walked off after 20 minutes rather than observing him for 

one hour.

IV. ANALYSIS

As set forth below, the Court recommends Defendants’ motion for summary 

judgment be GRANTED and Plaintiff’s motions be DENIED.

A. Defendants’ Amended Motion for Partial Summary Judgment

(ECF Doc. 53).

The Defendants seek summary judgment on only three of the above categories

of claims: (I) claims involving Plaintiff’s placement on property restriction; (II) 

claims involving statements made by Defendants; and (III) claims involving 

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untimely incident reports. Plaintiff contends the conduct in those claims violated his 

Fourth and Fourteenth Amendment rights. Defendants are entitled to summary 

judgment on these claims because, as a matter of law, the conduct complained of 

does not rise to the level of a constitutional violation.2

 

1. Property Restriction Claims

In numbered claims 2, 7, and 16, Plaintiff contends his Fourth and Fourteenth 

Amendment rights were violated when he was placed on property restriction, 

deprived of property, and strip searched. By virtue of their incarceration, prisoners 

have some reduced constitutional rights and the loss of many privileges and rights. 

See Sandin v. Conner, 515 U.S. 472, 485 (1995). Thus, prisoners have no reasonable 

expectations of privacy in their prison cells and thus no Fourth Amendment 

protection against unreasonable searches of their cells. See Hudson v. Palmer, 468 

U.S. 517, 526 (1984) (holding Fourth Amendment has no applicability to a prison 

cell); see also Davis v. Crew, No. 4:13cv504/MW/CAS, 2014 WL 961201, at *8 

(N.D. Fla. Mar. 11, 2014) (dismissing prisoner plaintiff's Fourth Amendment claim 

based upon defendant's placing him on 72-hour property restriction); O'Connor v. 

Carnahan, No. 3:09cv224/WS/EMT, 2012 WL 2201522, at *8 (N.D. Fla. Mar. 27, 

2012) (holding that “Hudson precludes Fourth Amendment challenges to prison cell 

2 Because the undersigned finds these claims fail to rise to the level of a constitutional violation, 

the undersigned does not address the qualified immunity argument.

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searches and seizures taken for any reason, whether reasonable or not”), report and 

recommendation adopted, 2012 WL 2317546, at *1 (N.D. Fla. June 15, 2012).

Moreover, “an unauthorized intentional deprivation of property by a state 

employee does not constitute a violation of the procedural requirements of the Due 

Process Clause of the Fourteenth Amendment if a meaningful post[-]deprivation 

remedy for the loss is available.” Hudson, 468 U.S. at 533; Parratt v. Taylor, 451 

U.S. 527, 541 (1981). Florida's civil theft statute provides a remedy for a defendant's 

knowingly obtaining or endeavoring to obtain the property of another with the intent 

to either temporarily or permanently deprive that person of his right to the property. 

See Fla. Stat. § 772.11(1). Finally, to the extent Plaintiff claims to be entitled to 

some sort of process before his placement on property restriction, he is mistaken. 

See Burns v. Fugate, 2020 WL 2198198, at *2 (M.D. Fla. May 6, 2020) (“To the 

extent Plaintiff’s claim is premised on his placement on property restriction, his 

claim fails.”) (citing Woodson v. Whitehead, 673 F. App’x 931, 933 (11th Cir. 2016) 

(“The Due Process Clause does not create an enforceable liberty interest in freedom 

from restrictive confinement while a prisoner is incarcerated.”)).

Although Plaintiff filed an opposition to Defendants’ motion, ECF Doc. 63, it 

does not appear that Plaintiff makes any arguments as to these property claims. 

Instead, the majority of the opposition is spent on the excessive force claim – but 

Defendants have not moved for judgment on that claim. Thus, as a matter of law, 

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Plaintiff cannot recover on his Fourteenth or Fourth Amendment claims and there is 

no reason for them to go to a jury for resolution. 

2. Claims Based on Statements by Defendants

In numbered claims 8, 10, and 11 Plaintiff claims Defendants violated his due 

process rights by making certain statements to him. Words alone rarely, if ever, 

provide the basis of a constitutional violation. Hernandez v. Fla. Dep't of Corr., 281 

F. App'x 862, 866 (11th Cir. 2008) (holding that allegations of verbal abuse and 

threats by prison officials do not state a claim because “verbal abuse alone is 

insufficient to state a constitutional claim”). “This is because derogatory, 

demeaning, profane, threatening, or abusive comments made by an officer to an 

inmate, no matter how repugnant or unprofessional, do not rise to the level of a 

constitutional violation.” Dees v. Lamar, 2021 WL 1953137 (N.D. Ala. Mar. 4, 

2021), report and recommendation adopted, 2021 WL 1661195 (N.D. Ala. Apr. 28, 

2021) (citing Bennett v. Chitwood, 519 F. App'x 569, 575–76 (11th Cir. 2013)); 

Edwards v. Gilbert, 867 F.2d 1271, 1273 n.1 (11th Cir. 1989) (holding that verbal 

taunts, despite their distressing nature, fail to show a violation of an inmate's 

constitutional rights); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) 

(“Verbal abuse by a prison guard does not give rise to a cause of action under § 

1983.”); Crenshaw v. City of Defuniak Springs, 891 F. Supp. 1548, 1555 (N.D. Fla. 

1995) (finding that “verbal harassment and abusive language, while ‘unprofessional 

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and inexcusable,’ are simply not sufficient to state a constitutional claim under 

Section 1983”). 

Therefore, as a matter of law, Defendants are entitled to summary judgment 

on Plaintiff’s due process claims as set forth in numbered claims 8, 10 and 11. 

3. Claims Based on Incident Reports

In numbered claim 14, Plaintiff claims Defendants violated his due process 

rights by not turning the incidents report in on time. ECF Doc. 6 at 14. As 

Defendants point out, however, Plaintiff offers nothing more than this conclusory 

allegation. He does not explain how this harmed him in any way or why the reports 

were even untimely. See Papasan v. Allain, 478 U.S. 265, 286 (1986) (noting courts

“are not bound to accept as true a legal conclusion couched as a factual allegation”); 

see also Cunningham v. School Board of Lake County, 2016 WL 1755612, at *6 

(M.D. Fla. May 3, 2016) (“[w]hile this allegation is a virtual parroting of the legal 

standard, it provides no factual basis from which the Court can plausibly infer that 

the standard ... has been met”). 

Regardless, an allegation of noncompliance with a prison regulation by prison 

officials is not, in itself, sufficient to give rise to a § 1983 claim upon which relief 

may be granted. See Sandin v. Conner, 515 U.S. 472, 481–82 (1995) (noting that 

many prison regulations “are primarily designed to guide correctional officers in the 

administration of a prison” and that “such regulations are not designed to confer 

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rights on inmates”); Mathews v. Moss, 506 F. App'x 981, 984 (11th Cir.2013) 

(district court properly dismissed prisoner's claim concerning prison officials' 

alleged failure to follow prison procedures with respect to grievances); Taylor v. 

White, 2012 WL 404588, at *5 (S.D.Ala. Jan. 10, 2012) (“A claim based on a prison 

official's failure to follow prison regulations or state regulations, without more, 

simply does not state a claim for deprivation of a constitutional right.”), report and 

recommendation adopted, 2012 WL 403849 (S.D.Ala. Feb. 7, 2012); Jones v. 

Schofield, 2009 WL 902154, at *3 (M.D.Ga. Mar. 30, 2009) (“Prison regulations 

and Standard Operating Procedures do not confer federal rights to prisoners that may 

be enforced or redressed in a § 1983 action.”). Therefore, summary judgment should 

be granted to Defendants on the due process claims set forth in numbered claim 14.

In Plaintiff’s opposition, he argues his due process rights were violated 

because he never received a disciplinary report. As an initial matter, this is not a 

claim he made in his amended complaint and Plaintiff cannot amend his complaint 

through an opposition to a summary judgment motion. Miccosukee Tribe of Indians 

of Fla. v. U.S., 716 F.3d 535, 559 (11th Cir. 2013). Regardless, while a due process 

claim may arise if a disciplinary report was issued that resulted in the loss of a liberty 

right without the appropriate process, Catron v. City of St. Petersburg, 658 F.3d 

1260, 1266 (11th Cir. 2011), there is no due process right to the issuance of a 

disciplinary report. As stated above, even if Defendants failed to follow procedure 

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by not issuing a disciplinary report, such failure does not rise to the level of a 

constitutional violation.

B. Plaintiff’s Motion for Summary Judgment and Second Amended 

Motion for Summary Judgment (ECF Docs. 49 and 51)

Plaintiff appears to seek summary judgment in his favor on all claims.3

 

However, because the undersigned recommends judgment in favor of Defendants on 

Plaintiff’s Fourth and Fourteenth Amendment claims, Plaintiff is not entitled to 

judgment on those claims. Thus, the only remaining claims are Plaintiff’s Eighth 

Amendment excessive force and deliberate indifference claims. Plaintiff is also not 

entitled to judgment on those claims.

While Plaintiff has provided his sworn testimony that, if believed, supports an 

Eighth Amendment use of excessive force claim and deliberate indifference claim, 

Defendants have offered sworn evidence that puts at issue Plaintiff’s claims. Indeed, 

in Plaintiff’s opposition to the Defendants’ motion, Plaintiff states, “[t]he affidavit 

of the plaintiff and the defendants’ are squarely contradictory as to what type of force 

was used, and why it was used.” ECF Doc. 63 at 12. Thus, by Plaintiff’s own 

3 Plaintiff filed a document entitled “Amended Motion for Summary Judgment” on or about July 

21, 2021. ECF Doc. 49. Despite its title, Plaintiff had not filed a prior motion for summary 

judgment. Moreover, it is wholly unclear from the motion whether Plaintiff is seeking summary 

judgment, on what claims, or whether he mistook some of Defendants’ affirmative defenses to 

seek summary judgment and thus was filing a “general affidavit” to oppose the entry of judgment 

in favor of Defendants. Regardless, because Plaintiff is proceeding pro se, the Court directed 

Defendants to file responses to both the amended motion and “second amended” motion and will 

treat the motions as Plaintiff’s request for judgment on all claims. 

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admission, Plaintiff’s excessive force claims cannot be decided on summary 

judgment. 

The Use of Force Reports provides a reason for the use of chemical agents: 

the refusal of Plaintiff to obey verbal commands to prepare for property restriction. 

See, e.g., Use of Force Reports at 59-3 through 59-9, Officer Eiland’s User of Force 

Report at ECF Doc. 51 at 27, and Major Oakes’ Use of Force Authorization at ECF 

Doc. 59-2. 

Also, these same reports provide sworn evidence supporting the need for a 

cell extraction: Plaintiff refusal to remove his boxers to submit to a strip search and 

a decontamination shower. See Use of Force Reports, supra, and McCranie’s 

Answers to Interrogatories, ECF Doc. 51 at 15. Third, the emergency room report, 

ECF Doc. 51 at 26, and Officer Miller’s Use of Force Report, id. at 29, provide 

evidence putting at issue the degree of medical care Plaintiff was afforded by 

Defendants and therefore disputes Plaintiff’s claims of deliberate indifference to 

serious medical needs. Thus, Plaintiff is not entitled to summary judgment. See 

Fed. R. Civ. P. 56(c).

V. CONCLUSION

Based on the foregoing, it is ORDERED:

1. The clerk is directed to change the last name of Defendant McCraine to 

“McCranie” in the CMECF system.

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Case No. 3:20cv5462-MCR-HTC

Additionally, it is respectfully RECOMMENDED that:

1. The Defendants’ Amended Motion for Partial Summary Judgment 

(ECF Doc. 53) be GRANTED, and Plaintiff’s Claims 2, 7, 8, 10, 11, and 14 be 

DISMISSED from the case.

2. Plaintiff’s Motion for Summary Judgment (ECF Doc. 49) and Second 

Amended Motion for Summary Judgment (ECF Doc. 51) be DENIED in their 

entirety.

3. Judgment not be entered on any claims at this time, but the matter 

referred back to the undersigned to be prepared for trial.

At Pensacola, Florida, this 19th day of November 2021.

/s/ Hope Thai Cannon

HOPE THAI CANNON

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations must be filed 

within fourteen (14) days of the date of the Report and Recommendation. Any 

different deadline that may appear on the electronic docket is for the court’s internal 

use only and does not control. An objecting party must serve a copy of its objections 

upon all other parties. A party who fails to object to the magistrate judge’s findings 

or recommendations contained in a report and recommendation 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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