1 

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

LAVAROS DAVIS, 

DOC #M63150 

 

Plaintiff,

v. Case No. 3:20-cv-5935-MCR-HTC

MARK INCH, et al., 

 

Defendants.

________________________________________/

DEFENDANTS’ RESPONSE IN OPPOSITION TO 

PLAINTIFF’S MOTION FOR AN ORDER TO SHOW CAUSE

Defendants, Vaughn, Nousiainen, Daniels, and Newcomb (together, 

“Defendants”), by and through counsel, hereby responds in opposition to Plaintiff’s 

Motion for an Order to Show Cause (Doc. 147), and respectfully requests the Court 

deny Plaintiff’s Motion as he has provided insufficient basis for the Court to issue 

such an order. As grounds, Defendants’ state the following in support thereof: 

1. On May 23, 2023, a settlement conference was held by the parties before 

the Honorable Magistrate Judge Charles J. Kahn. (Docs. 141, 144).

2. On May 31, 2023, Plaintiff filed a Motion for an Order to Show Cause, 

alleging that the Florida Department of Corrections (“FDC”) officers, who had 

transported Plaintiff to the courthouse for the settlement conference, had divulged 

confidential communications from the settlement negotiations to other officers after 

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they had returned to the Florida State Prison. (Doc. 147). Plaintiff also alleged that 

non-party officers physically attacked and taunted him after they heard the transport 

officers disclosures regarding the settlement conference. Id. In Plaintiff’s Motion, 

he asks the Court to issue an order to those unidentified transport officers to show 

cause why they should not be held in civil contempt for violating the settlement 

conference confidentiality rules. Id. 

Defendants now state:

MEMORANDUM OF LAW

I. Plaintiff has failed to proffer any admissible evidence that a civil contempt

violation has occurred. 

A party seeking civil contempt bears the initial burden of proving by clear and 

convincing evidence that the alleged contemnor has violated an outstanding court 

order. See Citronelle–Mobile Gathering, Inc. v. Watkins, 943 F.2d 1297, 1301 (11th 

Cir. 1991); Combs v. Ryan's Coal Co., 785 F.2d 970, 984 (11th Cir. 1982), cert. 

denied, 479 U.S. 853 (1986). Because a contempt order is a severe sanction, it is 

subject to a higher standard of proof than the “preponderance of the evidence” 

standard applicable to other civil cases. Hart Schaffner & Marx v. Alexander's Dep't 

Stores, Inc., 341 F.2d 101, 102 (2d Cir. 1965). The burden of proof is thus a “clear 

and convincing” standard. New York State Nat'l Org. For Women v. Terry, 886 

F.2d 1339, 1351 (2d Cir. 1989). “This [‘clear and convincing’ evidence standard] is 

more exacting than the ‘preponderance of the evidence’ standard but, unlike criminal 

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contempt, does not require proof beyond a reasonable doubt.” Jordan v. Wilson, 851 

F.2d 1290 , 1292 (11th Cir. 1988); see also International Controls & Measurements 

Corp. v. Watsco, Inc., 853 F.Supp. 585, 587 (N.D.N.Y.1994) (noting that the “clear 

and convincing evidence” standard lies at an intermediate point between the 

“preponderance of the evidence” and “beyond a reasonable doubt” standards). 

Plaintiff’s Motion is deficient because it fails to proffer any admissible evidence that 

the alleged contemnors violated a court order.

Rule 56(e) of the Federal Rules of Civil Procedure provides that an affidavit 

“shall be made on personal knowledge, shall set forth such facts as would be 

admissible in evidence, and shall show affirmatively that the affiant is competent to 

testify to matters stated therein.” Because affidavits must be based on personal 

knowledge, an affidavit based on nothing more than “information and belief” is not 

sufficient as a matter of law. See Givhan v. Electronic Engineers, Inc., 4 F.Supp.2d 

1331, 1334 (M.D. Ala. 1998). According to Federal Rule of Civil Procedure 56(e), 

an affidavit must be stricken when it is a conclusory argument rather than a statement 

of fact, or when the affidavit is not based on personal knowledge. Id. at 1031

(emphasis added); see also Interfase Marketing, Inc. v. Pioneer Technologies Group, 

Inc., No. 91–572–CIV–T–17A, 1993 WL 229601, at *2 (M.D. Fla. June 23, 1993). 

The Federal Rules of Civil Procedure and Federal Rules of Evidence require that any 

affidavits submitted to the court be based upon an affiant's personal knowledge and 

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contain facts that would be admissible as evidence. See, e.g., Federal Rule of Civil 

Procedure 56(e); Federal Rule of Evidence 602.

Here, Plaintiff has not provided proffered any admissible evidence that the 

officers who transported Plaintiff disclosed confidential information because 

Plaintiff’s Motion is based on Plaintiff’s counsel affidavit, which merely proffers 

hearsay. (Doc. 147-1). Plaintiff’s counsel has no personal knowledge of the 

circumstances of these officers’ alleged disclosure, and relies entirely upon a letter 

Plaintiff purportedly sent him which described the transport officers’ disclosure to 

other correctional officers upon their return to the Florida State Prison. Id. The 

proffered hearsay is not admissible under any exception or exemption under the 

Federal Rules. Because the affidavit proffers hearsay rather than facts based on 

personal knowledge, the Court must strike the affidavit, which renders Plaintiff’s 

Motion baseless. In other words, Plaintiff has failed to meet his initial burden of 

presenting clear and convincing evidence that the transport officers violated a court 

order because Plaintiff failed to present any admissible evidence supporting this 

allegation. Accordingly, the burden of production of evidence cannot shift to the 

transport officers. Thus, an order to show cause is not warranted. 

For the aforementioned reasons, Plaintiff has proffered inadequate evidence

for the Court to issue an order to show cause on this matter. As such, the Court must

deny Plaintiff’s Motion.

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II. Plaintiff’s Motion is outside the purpose of a civil contempt charge.

Civil contempt sanctions may either coerce the party into compliance or 

compensate the injured party for losses sustained. See In re McLean, 794 F.3d 1313, 

1323 (11th Cir. 2015). Once the “contumacious conduct” ceases, the need for a 

coercive sanction ends, but the court retains the power to impose compensatory 

sanctions. FTC v. Garden of Life, Inc., 516 F. App'x 852, 860 (11th Cir. 2013). 

[C]ivil contempt sanctions, or those penalties designed to compel future compliance 

with a court order, are considered to be coercive and avoidable through obedience, 

and thus may be imposed in an ordinary civil proceeding upon notice and an 

opportunity to be heard.” Int'l Union, United Mine Workers of Am. v. Bagwell, 512 

U.S. 821, 827 (1994). “The district court has broad discretion in fashioning coercive 

remedies.” King v. Allied Vision, Ltd., 65 F.3d 1051, 1062 (2d Cir. 1995). 

Damages only need to be shown by a preponderance of the evidence. See

McGregor, 206 F.3d at 1387. A compensatory sanction “reimburses the injured 

party for the losses and expenses incurred because of his adversary's noncompliance. 

This [reimbursement] includes losses flowing from noncompliance....” Rickard v. 

Auto Publisher, Inc., 735 F.2d 450, 458 (11th Cir. 1984). 

Here, Plaintiff seeks coercive contempt sanctions against the transport 

officers. He does not seek compensatory sanctions because he cannot cite a 

sustained loss specifically due to the alleged disclosure of confidential settlement 

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negotiations. (Doc. 147).1 Plaintiff has also not alleged that the purported 

contumacious conduct, namely the disclosure of confidential settlement information, 

is continuing. Id. Rather, he cites a single past instance of an alleged disclosure by 

the transport officers who informed other officers at Florida State Prison of 

unspecified information disclosed from the settlement conference. Id. However, 

sanctions for civil contempt are to coerce future compliance and to remedy past 

noncompliance, and as in this case there is no need to remedy a loss for past 

noncompliance as Plaintiff did not suffer a loss, there equally is no need to coerce 

future compliance as the violation is no longer ongoing. “Although one may be held 

in civil contempt for refusing to comply with a court order, a sanction for one's past 

failure to comply with an order is criminal in nature.” Cobell v. Norton, 334 F.3d 

1128, 1146–47 (D.C. Cir. 2003). Plaintiff’s claim is that of civil contempt, which is 

not cognizable for past failure to comply with a court order as such a claim would 

1 The only injury Plaintiff claims as a result of the disclosure of the settlement 

negotiations are allegations that he was physically battered as a result of the 

disclosure. (Doc. 147). This injury is subject to the Prison Litigation Reform Act’s 

(“PLRA”) administrative exhaustion requirement, which requires Plaintiff 

administratively exhaust his claim through the inmate grievance process before it is 

brought before the Court. “The [Prison Litigation Reform Act (“PLRA”), 42 U.S.C. 

§ 1997e,] exhaustion requirement requires full and proper exhaustion.” See

Woodford v. Ngo, 548 U.S. 81, 93, 126 S. Ct. 2378 (2006). Exhaustion is a 

mandatory pre-condition to filing a suit. Woodford, 548 U.S. at 85. Completion of 

the exhaustion requirement means properly completing each step of the prison’s 

grievance procedures. Jones v. Bock, 549 U.S. 199, 219, 127 S. Ct. 910 (2007); 

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be criminal contempt. A criminal contempt sanction is punitive in nature, meant to 

“vindicate the authority of the court,” and can only be imposed through criminal 

proceedings. Int'l Union, United Mine Workers of Am., 512 U.S. 821 at 845.

 “Unlike the civil contemnor, who has refused to perform some discrete, 

affirmative act commanded by the court, Gompers explains, the criminal contemnor 

has ‘do[ne] that which he has been commanded not to do.’ Id. at 845, quoting 

Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 442 (1911). The criminal 

contemnor's disobedience is past, a “completed act,” Gompers at 443, “a deed no 

sanction can undo.” See id., at 442. 

As such, Plaintiff’s claim for civil contempt based on the transport officers 

past conduct allegedly disclosing confidential settlement communications is 

improper for a civil contempt charge. Therefore, the Court should deny Plaintiff’s 

Motion for an Order to Show Cause. 

CONCLUSION

WHEREFORE, based on the foregoing, Plaintiff’s Motion is insufficient, 

and Defendants respectfully request the Court deny Plaintiff’s Motion for an Order 

to Show Cause. (Doc. 147). 

 Respectfully Submitted,

 ASHLEY MOODY

 ATTORNEY GENERAL

 /s/ Ravi N. Sharma

 Ravi N. Sharma

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 Office of the Attorney General

 Florida Bar No.: 1019119

 The Capitol PL-01

 Tallahassee, Florida 32399-1050

 Telephone: (850) 414-3300

 Facsimile: (850) 488-4872

 Ravi.Sharma@myfloridalegal.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing 

Defendants’ Response in Opposition to Plaintiff’s Motion for an Order to Show 

Cause was electronically filed through CM/ECF and served on all counsel of record

on June 5, 2023.

 /s/ Ravi N. Sharma

Ravi N. Sharma, Esq.

CERTIFICATE OF COMPLIANCE WITH WORD LIMIT

I HEREBY CERTIFY that the above Response totals 1,610 words, and does 

not exceed the 8,000 total word maximum created by N.D. Fla. Loc. R. 7.1. 

 /s/ Ravi N. Sharma

Ravi N. Sharma, Esq.

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