UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ROBERT JOHNSON, 

Plaintiff, Case No.: 4:20cv410-MW-MAF

vs. 

CAPTAIN MASSEY, et al.,

 Defendants.

______________________________/ 

 

DEFENDANTS’ SECOND SUPPLEMENTAL 

MOTION FOR SUMMARY JUDGMENT1

Defendants MASSEY, BROWN, and DOWDEN, through undersigned 

counsel, and pursuant to Rule 56(a), Fed. R. Civ. Pro., move for the entry of an Order 

granting summary judgment in their favor in this cause. As grounds therefore, 

Defendants allege the following:

PRELIMINARY STATEMENT

Plaintiff, an inmate in the custody of the Florida Department of Corrections 

(hereinafter ‘FDC’), currently confined at Charlotte Correctional Institution,

initiated this case by filing a civil rights complaint pursuant to 42 U.S.C. §1983. 

1 Defendants’ initial Motion for Summary Judgment and supplemental motion have both been denied, However, in

light of Plaintiff’s filing an ‘amended complaint’ [Doc. 61], which Defendants have ‘answered’ [Doc. 64], 

Defendants are herewith filing a ‘second supplemental motion for summary judgment’ to address anew the issues 

presented in the amended complaint, and as invited by the Court in its last Order [Doc. 63, pg. 7]. 

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[Doc. 1], and a first amended complaint. [Doc. 61]2 He alleges that when formerly 

confined at Franklin Correctional Institution (hereinafter ‘Franklin’), on July 28, 

2018, the Defendants, who were then correctional officials at Franklin, either used 

excessive and unnecessary force upon him, or failed to protect him from another 

inmate’s assault and force used on him.

The basis of Plaintiff’s complaint, is that on July 28, 2018, Defendant Dowden 

advised him that he would be receiving a cell mate, to which he objected, notifying 

Dowden that he had been threatened with physical harm by inmates allegedly acting 

at the behest of security staff, and was in ‘fear for his life’ by having a cell mate.

Allegedly, Plaintiff reiterated this fear to Defendant Massey, in her role as 

Captain and Officer in Charge, but she disregarded him and repeated the threats, as 

well as stating that she was aware of a lawsuit he had filed against correctional 

officers at another institution. Furthermore, she allegedly threatened Plaintiff that if 

he did not cooperate with the placement of another inmate in his cell, and cease his 

disruptive behavior, chemical agents would be used on him.

Plaintiff alleges a series of actions wherein he cooperated with the placement 

of hand restraints on him to effectuate the placement of the other inmate in his cell, 

but finally refused to relinquish the restraints due to ‘fear for his life.’ He further 

2 The only change apparent in the ‘first amended complaint’ is to the ‘relief sought’ paragraphs (pg. 19 of both 

documents). Plaintiff adds a request for compensatory damages not included in his initial complaint. Also, he 

changes the amounts requested for nominal and punitive damages, presumably in light of the Court’s previous 

instructional language.

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alleges that Defendants Dowden and Brown at one point used excessive force on 

him while trying to force him into the cell; that Defendant Massey ordered an 

unknown officer to spray him with chemical agents; and that he was eventually 

physically assaulted by his new cellmate, for which he claims Defendants are liable 

for failure to protect him. [Doc. 61; pgs. 7 through 16].

Defendants have filed their ‘answer, etc.’ to the ‘first amended complaint’

[Doc. 64]. Accordingly, the action is now at issue.

STATEMENT OF MATERIAL UNDISPUTED FACTS

1. On July 28, 2018, Defendant Audrey Massey was employed by the FDC as a 

Correctional Captain at Franklin [Docs. 45-1; 55-1]3

. 

2. She does not specifically recall that incident, however, after review of reports 

concerning the incident, Ms. Massey confirms the following: [Id.] 

3. On July 28, 2018, in her supervisory role as Captain, she was informed that 

inmate Robert Johnson was verbally refusing to have another inmate placed into his 

cell. [Id.] 

4. Ms. Massey arrived at the cell front of cell A2113L, which housed inmate

Johnson. [Id.] 

5. To her knowledge, Sgt. Andrew Dowden counselled with inmate Johnson in

an effort to have him accept his designated cell mate and ordered Johnson to submit 

3

 References will be to the CM/ECF Doc. No. when they are already previously filed of record. 

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to hand restraints so the new cell mate could be placed in the cell, to which Johnson 

refused to comply. [Id.]

6. Johnson did eventually comply and was placed in hand restraints, and escorted 

off the wing, so his new cell mate could be placed in the cell. [Id.]

7. The new cell mate was then placed in the cell with his hands cuffed behind

his back. [Id.]

8. Johnson was then placed back in cell A2113 but refused to relinquish his hand 

restraints. [Id.]

9. Correctional staff approached the cell several times to retrieve the hand 

restraints from Johnson, but he repeatedly refused. [Id.]

10. Massey then approached the cell and gave Johnson a final order to relinquish 

his hand restraints, to which he again refused. [Id.]

11. She then directed Officer Dana Keith to administer one burst of chemical 

agent OC spray through the chain breached cell door of A2113, which struck 

Johnson in the head and upper torso area. [Id.]

12. At that time, Johnson complied with further orders and was removed from 

the cell and taken off the wing and received a decontamination shower. [Id.]

13. Johnson also was issued clean clothing and secured into a decontaminated 

cell. He also received a post use of force physical examination. [Id.]

14. Massey never personally used physical force on Johnson, but authorized and 

observed only the minimal amount of force (chemical agent) to be used on him, to 

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retrieve the hand restraints from him which he refused to relinquish. [Id.]

15. She never observed any officer threaten Johnson or otherwise use 

unnecessary physical force or abuse him. [Id.]

16. Nor did she ever verbally threaten Johnson, or ‘retaliate’ against him due to 

his having filed a lawsuit against any correctional official at any institution, or for 

any other reason. [Id.]

17. On July 28, 2018, Defendant Andrew Dowden was employed by the FDC as 

a Correctional Sergeant at Franklin [Docs. 45-2; 55-2].

18. He does not specifically recall that incident, however, after review of 

reports his only involvement was as follows: [Id.]

19. On that date, Dowden was assigned as a dorm supervisor. [Id.]

20. At approximately 6:35 PM, he gave Johnson a verbal order to submit to 

hand restraints, which he did not initially comply with. [Id.]

21. Only after Dowden gave him a second order, did he comply. [Id.]

22. After returning Johnson to his assigned cell (A2113), he initially

disregarded verbal orders to relinquish his hand restraints, and only complied after 

chemical agents were applied to his cell. [Id.]

23. Dowden never personally used force on Johnson on that date, and did not 

observe the use of force by application of chemical agents by another correctional 

officer. [Id.]

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24. However, he did write a ‘disciplinary report’ charging Robert Johnson with 

the infraction of ‘disobeying order’, for which he was found ‘guilty’ following a 

disciplinary hearing. [Docs. 45-2; 45-7]

25. Dowden never observed any officer threaten Johnson or otherwise use

unnecessary physical force or abuse him [Doc. 45-2].

26. On July 28, 2018, Defendant Brown was employed by the FDC as a

Correctional Officer at Franklin [Docs. 45-3; 55-3].

27. Brown does not specifically recall that incident, however, after review of 

reports, his knowledge of it, is as follows: [Id.]

28. On that date, Brown was directed to operate the handheld camera to record 

an incident involving the application of chemical agents upon inmate Johnson. [Id.]

29. In the capacity of recording the video, he did observe the application of 

chemical agents, as reflected in the ‘Report of Force Used’ concerning that incident. 

[Id.]

30. Brown himself never used force on Johnson on that date, and never 

observed any officer use unnecessary physical force or abuse Johnson on that date. 

[Id.]

31. Plaintiff sustained no physical injuries during the subject incident 

[Doc. 45-8].

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MEMORANDUM OF LAW

I. Summary Judgment Standard

“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). A genuine dispute is present if a reasonable 

jury could return a verdict in favor of the non-moving party. Allen v. Bd. of Public 

Educ. for Bibb Cnty., 495 F.3d 1306, 1313 (11th Cir. 2007). It is only when the 

moving party meets its initial burden does the burden shift to the non-moving party 

to demonstrate there are “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). 

When the burden shifts, the non-moving party must show more than “a mere 

scintilla of evidence to defeat a [properly presented] motion for summary judgment.” 

Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1249 (11th Cir 

2004). They may not rest simply on the allegations presented in the pleadings but 

are required to set forth facts showing the presence of a genuine issue for trial. 

Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir. 1990). See also Ekokotu v. 

Federal Exp. Corp., 408 F. Appx. 331, 333 (11th Cir. 2011) (once the moving party 

meets its burden, “the nonmoving party must present evidence beyond the pleadings 

showing that a reasonable jury could find in its favor”) (quoting Fickling v. U.S., 

507 F.3d 1302, 1304 (11th Cir. 2007)). 

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The 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). “[T]he mere existence of some alleged factual dispute 

between the parties will not defeat an otherwise properly supported motion for 

summary judgment; the requirement is that there be no genuine issue of material 

fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–248, 106 S.Ct. 2505, 91 

L.Ed.2d 202 (1986). Implausible inferences drawn from the record and relied upon 

by the non-moving party need not proceed to trial. Cuesta v. School Bd. of MiamiDade Cnty., 285 F.3d 962, 970 (11th Cir. 2002). The court may not accept any 

version of the facts that are “blatantly contradicted by the record, so that no 

reasonable jury could believe it.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 

167 L.Ed.2d 686 (2007).

II. Defendant Massey is not Liable for Excessive Use of Force During 

the Subject Incident, as the Force Used was Reasonable and 

Necessary Under the Circumstances.

As demonstrated by the referenced exhibits, Defendant Massey, as 

Correctional Captain was fully authorized and justified to direct another officer to 

administer chemical agents into Plaintiff’s cell, after Plaintiff refused to comply with 

several verbal orders to cease his disruptive behavior. Once Plaintiff finally

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complied, all use of force ceased. She acted within her correctional authority to

direct the use of the reasonable and necessary force to maintain order within the 

correctional setting. 4

`5

In Miles v. Jackson, 757 Fed. Appx. 828 (11th Cir. 2018), the appellate court

affirmed an order by the Northern District of Florida granting summary judgment

to correctional officers in an excessive force case brought under §1983. And in

Reed v. Mitchem, 707 Fed. Appx. 617 (11th Cir. 2017), an inmate alleged that the

correctional officer defendant therein used excessive force upon him in violation of

the Eighth Amendment during an altercation. On appeal, the appellate court

affirmed the lower court’s judgment in favor of the correctional officer, and cited

the standard applied by the Supreme Court in excessive force cases:

“‘[W]henever prison officials stand accused of using excessive physical force in 

violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry 

is...whether force was applied in a good-faith effort to maintain or restore 

discipline, or maliciously and sadistically to cause harm.’ Hudson, 503 U.S. at 6-7, 

112 S. Ct. 995. (citing Hudson v. McMillian, 112 S. Ct. 995 (1992) Certain 

objective factors may bear on this core inquiry, including ‘[1] the extent of injury 

suffered by the inmate...[,] [2] the need for application of force, [3] the relationship 

between that need and the amount of force used, [4] the threat ‘reasonably 

perceived by the responsible officials,’ and [5] ‘any efforts made to temper the 

severity of a forceful response.’...(citing Whitley v. Albers, 475 U.S. 312, 321, 106 

S. Ct. 1078, 89 L. Ed. 2d 251 (1986). ‘From consideration of such factors, 

‘inferences may be drawn as to whether the use of force could plausibly have been 

thought necessary, or instead evinced such wantonness with respect to the 

unjustified infliction of harm as is tantamount to a knowing willingness that it 

occur.’ (internal citations omitted) ... Once it determined Reed was acting in an 

aggressive manner, as Brock testified, and that Reed made a quick movement in 

Brock’s direction, the court found that the ‘evidence support[ed] the conclusion 

that Brock reasonably perceived a need for action.’ We find no error in this 

conclusion;...” Id. at 621. 

4

 Defendants Dowden and Brown deny using any force on Plaintiff on July 28, 2018 whatsoever. 

5 Defendant Massey furthermore denies ‘retaliating’ against Robert Johnson in any manner. 

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 In Smith v. Secretary, Department of Corrections, 524 Fed. Appx. 511 

(11th Cir. 2013), the Eleventh Circuit affirmed an order granting summary judgment 

in favor of a correctional officer on an excessive force claim brought by a state 

prisoner in the Middle District of Florida. The plaintiff’s allegations were described 

as follows: 

“In his Amended Complaint, Smith alleged that Officer Daniels ‘twist[ed] [his] 

arms upwards in the cuffs, while he pressed [him] against the wall...for some 

minutes’ in an ‘unprovoked attack’ away from surveillance cameras. Smith further 

alleged that, as a result of the attack, he suffered pain in ‘his shoulder and right 

hand with wrist injury as well; and minor bruises to his eye and a swollen face.’ 

The district court granted summary judgment to Officer Daniels because ‘the 

amount of force at issue...was de minimis’ and no reasonable jury could find in 

favor of [Smith].’.......................................................................... 

Taking Smith’s account as true, the attack was no more than a de minimis use of 

force. First, there was a lack of serious injury. The district court properly 

concluded that Smith’s only injury was minimal swelling around the left eye. It is 

undisputed that Smith had ‘minimal swelling’ when treated the day after the 

incident. Smith alleges that he also suffered facial bruising and a fractured wrist as 

a result of the incident. However, Officer Daniels has met his burden of showing 

that there is no genuine dispute about the existence of these injuries (no such 

injuries were caused by the incident), and Smith has not rebutted that showing by 

designating specific facts beyond the pleadings.... (internal citation omitted). Notes 

from Smith’s medical examination after the incident stated that there was no 

‘discoloration’ and did not reference wrist pain. Also, Smith’s medical records 

show that he made inconsistent statements about when his wrist injury occurred... 

Thus, the record supports the finding that Smith suffered only the minor injury of 

facial swelling as a result of the incident. Second, the type of force allegedly used 

by Officer Daniels (twisting Smith’s arm and pressing him against the wall) was 

‘not of a sort repugnant to the conscience of mankind.’ See Hudson, 503 U.S. at 10, 

112 S. Ct. at 1000 (quotation marks omitted). Instead, it was similar to the ‘push 

or shove’ referenced in Wilkins, (citing to Wilkins v. Gaddy, 130 S. Ct. 1175 

(2010)), which ‘almost certainly fails to state a valid excessive force claim.’ 

Wilkins, 130 S. Ct. at 1178 (quotation marks omitted). Therefore, even taking 

Smith’s version of the events as true, any use of force was de minimis and the 

district court did not err in concluding that no genuine issue of material fact existed 

about whether Officer Daniels used excessive force in violation of the Eighth 

Amendment.” (Id. at 512-514). 

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And in another excessive force case brought by a state prisoner against 

correctional officers, the Eleventh Circuit affirmed the grant of summary judgment 

for the defendants. In Howard v. Memnon, 572 Fed. Appx. 692 (11th Cir. 2014), the 

Eleventh Circuit held as follows: 

“Here, the district court did not err in granting summary judgment in favor of Lt. 

Newell and Sgt. Crosby regarding Howard’s claim of excessive use of force. The 

defendants presented evidence that force was applied in a good faith effort to 

maintain or restore discipline, and that the post-force exam showed that he received 

only a superficial abrasion on his back. Because Howard’s accounting of the 

incident was blatantly contradicted by the record, so that no reasonable jury could 

have believed it, we cannot adopt that version of the facts for purposes of summary 

judgment...” (Id. at 695). 

See also, Ledlow v. Givens, 500 Fed, Appx. 910 (11th Cir. 2012).

III. Plaintiff’s Claim of Retaliation is Unsubstantiated and Should be

Dismissed on Summary Judgment.

 The legal standard for a valid First Amendment ‘retaliation’ claim was stated 

by the Northern District in Rager v. Augustine, 2017 WL 6627416, (N.D. Fla. 

2017), where the Court recognized Eleventh Circuit precedents as follows:

“To prevail on a claim of retaliation, the inmate must establish these elements:

(1)His speech was constitutionally protected; (2) the defendant’s retaliatory 

conduct adversely affected the protected speech; and (3) there is a causal 

relationship between the retaliatory action and the protected speech. See, Douglas

v. Yates, 535 F. 3d 1316, 1321 (11th Cir. 2008) (citing Bennett v. Hendrix, 423 F. 

3d 1247, 1250, 1254 (11th Cir. 2005)).” Rager, supra, at 7.

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Contrary to Plaintiff’s unsubstantiated allegations in his Declaration filed

in response to Defendants’ initial Motion for Summary Judgment, that Defendant 

Massey advised him that she was aware of his grievances and lawsuit against 

correctional officers, and that ‘they were going to get [him] one way or another’ 

[Doc. 47, pg. 49], Defendants have filed their supplemental Declarations, in which 

each denies ever physically or verbally retaliating against Plaintiff for his filing 

grievances or lawsuits against any correctional official [Docs. 55-1; 55-2; 55-3]. 

IV. Defendants were not Deliberately Indifferent to Plaintiff’s Need for 

Protection.

The Eighth Amendment of the U.S. Constitution forbids ‘cruel and unusual 

punishments.’ U.S. Const. Amend. VIII. “A prison official’s ‘deliberate 

indifference’ to a substantial risk of serious harm to an inmate violates the Eighth 

Amendment.” Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003) (citing 

Farmer v. Brennan, 511 U.S. 825, 828, 114 S.Ct. 1970, 1974, 128 L.Ed.2d 811 

(1994)). “[P]rison officials have a duty... to protect prisoners from violence at the 

hands of other prisoners.” Id. “It is not, however, every injury suffered by one 

inmate at the hands of another that translates into a constitutional liability for prison 

officials responsible for the victim’s safety.” Id. (citing Farmer v. Brennan, 511 

U.S. at 834). 

To establish a violation, the prisoner must produce sufficient evidence of (1) 

a substantial risk of serious harm; (2) defendants’ deliberate indifference to that risk; 

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and (3) causation. Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003) (citing 

Hale v. Tallapoosa Co., 50 F.3d 1579, 1582 (11th Cir. 1995). For the first element, 

an officer will be found to have violated an inmate’s Eighth Amendment rights when 

“a substantial risk of serious harm, of which the official is subjectively aware, exists 

and the official does not ‘respond reasonably to the risk’...” Id. citing Marsh v. 

Butler Co., Ala., 268 F.3d 1014, 1028 (11th Cir. 2001). 

The second element, “deliberate indifference,” is a subjective standard having 

three components: “(1) subjective knowledge of a risk of serious harm; (2) disregard 

of that risk; (3) by conduct that is more than mere negligence.” McElligott v. Foley, 

182 F.3d 1248, 1254 (11th Cir.1999); Thomas v. Bryant, 614 F.3d 1288, 1312 (11th 

Cir.2010). Prison officials may avoid liability if (1) “they did not know of the 

underlying facts indicating a sufficiently substantial danger” (2) “they knew the 

underlying facts but believed (albeit unsoundly) that the risk to which the facts gave 

rise was insubstantial or nonexistent,” or (3) “they responded reasonably to the risk, 

even if the harm ultimately was not averted.” Rodriguez v. Sec’y for Dep't of Corr., 

508 F.3d 611, 617–18 (11th Cir. 2007) (quoting Farmer, 511 U.S. at 844, 114 S.Ct. 

at 1982–83). “[B]efore a defendant’s awareness arises to a sufficient level of 

culpability, there must be much more than mere awareness of [an inmate’s] generally 

problematic nature.” Carter, 352 F.3d at 1349. Mere negligent failure to protect an 

inmate from an attack does not create a constitutional violation. Id. at 1350. 

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Finally, the constitutional violation must be shown to have caused the 

plaintiff’s injury. Cottone v. Jenne, 326 F.3d 1352, 1359 (11th Cir. 2003). And 

there must be some realistic opportunity for a defendant to respond to prevent the 

illegal conduct. See Ensley v. Soper, 142 F.3d 1402, 1407-08 (11th Cir. 1998). 

 In the recent case of Milledge v. Florida Department of Corrections Secretary, 

760 Fed. Appx. 741 (11th Cir. 2019), a state prisoner alleged that the assistant warden 

“violated his Eighth Amendment rights by not protecting him after he informed him 

that his cellmate threatened him and he feared for his life, and then the cellmate 

attacked and injured him.” (Id.)

Summary judgment was granted for the defendant and the prisoner appealed. 

After reiterating the standard for ‘deliberate indifference’ in cases of alleged ‘failure 

to protect’, the Eleventh Circuit stated: 

“To have subjective knowledge, the plaintiff ‘must show more than a generalized 

awareness of risk.... Mere knowledge of a substantial risk of serious harm ‘is insufficient 

to show deliberate indifference.’ Thus, a plaintiff must produce evidence that, with 

knowledge of the substantial risk of serious harm, the government official knowingly or 

recklessly ‘disregard[ed] that risk by failing to take reasonable measures to abate it.’

******************************************************************** 

Here, the district court did not err in granting summary judgment in favor of 

English. The most the record before us reveals is that Milledge may have informed officials 

of a single threat directed toward him by his cellmate.....Because ‘there must be a ‘strong 

likelihood’ of injury, ‘rather than a mere possibility,’ before an official’s failure to act can 

constitute deliberate indifference,’ ...we cannot say that a single threat, on the 

circumstances of this case, is sufficient by itself to constitute a substantial risk of serious 

harm.” 

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Milledge, supra, at 743-44. (Internal citations omitted.) Summary judgment 

for the defendant was accordingly affirmed.

Here the evidence is clear that Plaintiff cannot sustain his burden of showing 

‘deliberate indifference’ to survive summary judgment. While Plaintiff claims in his 

Declaration filed in opposition to Defendants’ initial Motion for Summary Judgment 

that he ‘protested’ having a cellmate placed in his cell:

“I protested, advising Defendant Dowden that I was in fear for my life because 

members of security were paying and coercing inmates of different nationalities to 

threaten and attempt to kill me...” [Doc. 47, pg. 47], that is not sufficient evidence 

of ‘deliberate inf=difference’ in light of the case law cited herein. All the named 

Defendants have attested that they did not fail to provide Plaintiff protection from 

any inmate who posed a known risk of danger to Plaintiff. Furthermore, they have 

attested that they never received any information of a ‘verifiable’ danger to Plaintiff 

of being attacked by his new cell mate [Docs. 55-1; 55-2; 55-3]. 

The above evidence shows that the standard required for liability for 

deliberate indifference to a need for protection, as set forth in the cases cited 

previously herein, has not been met by Plaintiff. Accordingly, Defendants are 

entitled to an Order granting summary judgment in their favor on this issue.

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V. Plaintiff’s State Law Claim for Assault and Battery Should be 

Dismissed for the Same Reasons Stated as to his §1983 Excessive 

Force Claim.

 The elements of a Florida state law claim for Assault and Battery are 

virtually identical to those required to state a claim under 42 U.S.C. § 1983 for 

excessive use of force, in violation of the Eighth Amendment. Defendants submit 

that the argument presented in Point II, supra, is equally applicable to Plaintiff’s 

state law claim for assault and battery. It too should be dismissed on summary 

judgment.

 VI. Plaintiff’s State Law Claim for Intentional Infliction of Emotional

Distress Should be Dismissed on Summary Judgment.

 

Plaintiff has failed to adequately plead or present sufficient evidence to

support his claim of ‘intentional infliction of emotional distress’ under Florida

state law. In Broberg v. Carnival Corporation, 303 F. Supp. 3d 1313 (S.D. Fla. 

2017), the District Court cited the elements required to state a valid claim for 

‘intentional infliction of emotional distress’ under Florida state law: “Under

Florida law, a plaintiff must plead the following elements in order to state a claim

for intentional infliction of emotional distress: (1) extreme and outrageous conduct;

(2) an intent to cause, or reckless disregard to the probability of causing, 

emotional distress; (3) severe emotional distress suffered by the plaintiff and (4)

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that the conduct complained of caused the plaintiff’s severe emotional distress...

Under the first prong, a defendant’s conduct must be ‘so outrageous in character, 

and so extreme in degree, as to go beyond all bounds of decency, and to be 

regarded as atrocious, and utterly intolerable in a civilized community.’...

‘While there is no exhaustive or concrete list of what of what constitutes 

outrageous conduct, Florida common law has evolved an extremely high standard.’

...Whether conduct is outrageous enough to support a claim of intentional 

infliction of emotional distress is a question of law for the court to decide, not a

question of fact...” Broberg, supra, at 1317-18. (internal citations omitted). 

CONCLUSION

 For the foregoing reasons, Defendants submit that Plaintiff’s claims should 

be dismissed, and an Order entered granting summary judgment in their favor 

herein.

 Respectfully submitted,

ASHLEY MOODY 

ATTORNEY GENERAL

/s/ Joe Belitzky JOE BELITZKY

Senior Assistant Attorney General

Florida Bar No. 0217301 

Office of the Attorney General

The Capitol, PL-01 

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Tallahassee, Florida 32399-1050 

Telephone: (850) 414-3300 

Facsimile: (850) 488-4872 

Joe.belitzky@myfloridalegal.com

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was electronically 

filed via CM/ECF and furnished by United States Mail to Robert Johnson #L10847, 

Charlotte Correctional Institution, 33123 Oil Well Road, Punta Gorda, FL 33955, on 

June 1, 2022. 

/s/ Joe Belitzky 

JOE BELITZKY

 

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