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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ROBERT JOHNSON,

D.O.C. #L10847,

Plaintiff,

vs. Case No. 4:20cv410-MW-MAF

CAPTAIN A. MASSEY, 

SERGEANT A. DOWDEN,

and OFFICER BROWN,

Defendants.

________________________/

SECOND REPORT AND RECOMMENDATION

In February 2022, a Report and Recommendation, ECF No. 48, was

entered on Defendants’ first summary judgment motion, ECF No. 45,

recommending that the motion be granted as to Plaintiff’s Eighth

Amendment claim for the use of excessive force. ECF No. 48. It was

further recommended that the case be remanded for further proceedings

on Plaintiff’s remaining claims for retaliation, failure to protect, and state

law claims for assault and battery and intentional infliction of emotional

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distress which were not addressed in the summary judgment motion. ECF

No. 28 at 25-26. In March 2022, the Report and Recommendation was

rejected, ECF No. 51, and the case was remanded to consider the effect of

the chemical agents on Plaintiff, whether there was a question of material

fact, and to consider issues related to Plaintiff’s damages.1

The parties were given leave to file supplemental motions for

summary judgment. ECF No. 53. After doing so, Plaintiff filed a motion

requesting leave to file an amended civil rights complaint, ECF No. 56. In

particular, Plaintiff sought to add a request for compensatory damages. Id.

at 2. Defendants filed a response to Plaintiff’s motion, stating they had no

objection to Plaintiff’s request to “modify the punitive and nominal

damages” request. ECF No. 59 at 2. However, Defendants opposed

Plaintiff’s effort to request compensatory damages. Id. Plaintiff’s motion

was ultimately granted and Plaintiff’s amended complaint, ECF No. 61, is

now the operative pleading. 

 1 The issue concerning damages has now been resolved with Plaintiff’s filing of his

amended complaint. ECF No. 61. Previously, Plaintiff had requested nominal and

punitive damages, but not compensatory damages. Thus, it was questionable whether

Plaintiff was entitled to a jury trial. See ECF No. 53.

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Plaintiff proceeds against the three named Defendants, each of

whom is sued in his or her individual capacity. ECF No. 61 at 1. He

asserts five claims: (1) retaliation under the First Amendment; (2) failure to

protect under the Eighth Amendment; (3) excessive force under the Eighth

Amendment; (4) state law claim for assault and battery; and (5) state law

claim for intentional infliction of emotional distress. ECF No. 61 at 18. As

relief, Plaintiff seeks nominal, compensatory, and punitive damages, a

declaratory judgment, and injunctive relief. Id. at 19.

Defendants filed an answer to the amended complaint, ECF No. 64,

followed by a second supplemental motion for summary judgment, ECF

No. 67. Plaintiff was reminded again of his obligation to respond to the

summary judgment motion. ECF No. 68. Plaintiff’s response, ECF No. 69,

was timely filed and the motion is ready for a ruling.2

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,

 2 Plaintiff’s recent notice on inquiry, ECF No. 72, received on January 12, 2023, is

hereby acknowledged.

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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). Here,

the parties were given from April 6, 2021, through August 17, 2021, to

conduct discovery. ECF Nos. 22, 42.3

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

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 show 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). 

 3 The discovery period was extended briefly so Plaintiff could have sufficient time to

review a video (DVD) and other documentary evidence. ECF No. 42. 

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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

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)). 

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

for trial.” Sconiers, 946 F.3d at 1263 (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)). 

The Relevant Rule 56(e) Evidence

1. Plaintiff’s Evidence 

On the morning of July 4, 2018, between 8:30 and 10:00 a.m.,

Plaintiff was “accosted” by “several unknown inmates” on the recreation

yard at Franklin Correctional Institution. ECF No. 61 at 7.4

 Plaintiff reports

that the inmates, who were apparently members of different gangs, told

Plaintiff that he was making “things hard for them” because Plaintiff had

been writing grievances about staff “misconduct.” ECF No. 61 at 7. The

 4 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.”)). Plaintiff’s amended complaint includes a declaration that the

statements of fact were true and correct. ECF No. 61 at 20.

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inmates told Plaintiff that he had 24 hours to “remove himself from that

institution or else they were going to kill him.” Id. Plaintiff alerted his

dormitory sergeant to this issue and he was placed in administrative

confinement pending placement in “protective management status.” Id.;

ECF No. 47 at 47 (Plaintiff’s declaration).5

On July 28th, Plaintiff was housed in Wing 2 Cell 113 when

Defendant Dowden approached his cell between 6:00 - 7:00 p.m. and told

Plaintiff that he “was getting a cellmate.” ECF No. 61 at 7-8; ECF No. 47 at

47 (Plaintiff’s Declaration). Plaintiff “protested” and informed Defendant

Dowden he was in “fear for [his] life because members of security were

paying & coercing inmates . . . to threaten & kill him.” ECF No. 47 at 47;

see also ECF No. 61 at 8.6

 Defendant Dowden told Plaintiff that he “did not

 5 Plaintiff’s declaration, ECF No. 47, was submitted with his response to the first

summary judgment motion, ECF No. 45. In Plaintiff’s response to the current summary

judgment motion, Plaintiff adopts and incorporates by reference “the background

contained in his initial response” to Defendant’s summary judgment motion and his

“statement of disputed material facts” that were contained in his initial response. ECF

No. 69 at 2 (citing to ECF No. 47 at 2-4). Plaintiff swore that his response was “true &

correct” and may by considered as evidence. See ECF No. 47 at 42. Plaintiff did not

specifically incorporate his prior declaration, ECF No. 47 at 46-54, in his response. 

Nevertheless, Rule 55 permits the Court to consider other materials in the record even

when not cited by the parties. Fed. R. Civ. P. 56(c)(3). In an effort to be as thorough as

possible, the prior declaration has been considered.

 6

 In his complaint, Plaintiff alleged that security officers were “coercing gang

members” to threaten and kill him. ECF No. 1 at 8.

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have a choice” about getting a cellmate. ECF No. 61 at 8. Plaintiff asked

to speak with the Officer in Charge [“OIC”] and Defendant Massey came to

Plaintiff’s cell. Id. She told Plaintiff he was getting a cellmate and she did

not care if Plaintiff “was in fear for his life or not.” Id. 

Approximately ten to fifteen minutes later, Defendants Massey,

Dowden, and Brown returned to Plaintiff’s cell with an “unknown white

inmate” and ordered Plaintiff to submit to hand restraints. ECF No. 61 at 8. 

Plaintiff “repeatedly pleaded” to the Defendants, stating again that he was

in fear for his life and could not consent to accepting the cellmate. Id.

Defendant Massey then threatened Plaintiff with a disciplinary report and

the use of chemical agents, causing Plaintiff to submit to hand restraints. 

Id. at 9. Restraints were placed on Plaintiff by Defendant Dowden, but

after the cell door was opened, Plaintiff refused to “back away & permit the

inmate to enter the cell with him.” Id. Plaintiff again said he was “in fear for

his life.” Id. Plaintiff’s door was secured, his hand restraints removed, and

Defendants escorted the unknown inmate away. Id. 

Moments later, Defendant Massey returned to Plaintiff’s cell with

Defendant Brown who held a camcorder. ECF No. 61 at 9. Defendant

Massey ordered Plaintiff to cease his “disruptive behavior” and advised that

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if he did not cease, chemical agents would be used. Id. at 9-10. She then

directed Defendant Brown to stop the video recording and ordered Plaintiff

once again to submit to hand restraints. Id. at 10. Plaintiff complied and

Defendants Massey and Brown removed Plaintiff from his cell. Id.

Defendant Dowden then escorted the unknown white inmate into Plaintiff’s

cell. Id. Defendants then escorted Plaintiff to a holding cell outside of

Wing 2. Id. Once there, and “away from all audio & video recording

devices,” Defendants began threatening and insulting Plaintiff. Id. at 10-11.

Defendant Massey told Plaintiff that she knew about a lawsuit he had filed

against correctional officers at Calhoun Correctional Institution as well as

the “numerous grievances” he had written against staff. Id. at 11. She told

Plaintiff that she did not “give a damn if [Plaintiff] was in confinement or on

the compound, they were going to get him one way or another because he

was in their world [and] there was nothing that he could do about it.” Id.

Defendant Dowden called Plaintiff a “child molestor [sic]” and a

“coward mother f–—,” and promised that Plaintiff “would never make it out

of prison alive.” ECF No. 61 at 11. Defendant Dowden further told Plaintiff

that “they had paid the white inmate that was being forced into the cell with

him to f— [him] up” and Plaintiff was “going into the cell with that inmate

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one way or another.” Id. Defendant Massey then told Plaintiff that he

could “write that up in you want to,” adding, “if you be alive in the morning.” 

Id. Defendant Brown made a derogatory racial slur to Plaintiff, and they left

him in the cell for approximately an hour or hour and a half “without any

drinking water or toilet.” Id. at 12. 

Defendants Dowden and Brown returned to the cell between 9:00

and 10:00 p.m. and Plaintiff was asked if he was “ready to die.” ECF No.

61 at 12. Plaintiff was ordered to submit to hand restraints, which he did,

and Defendants escorted him from the holding cell back to his original cell. 

Id. Plaintiff states that the other inmate had already been placed in the cell. 

Id. Again, Plaintiff said he “was not going in the cell with the unknown

white inmate because he was in fear for his life.” Id. at 12-13. Defendant

Dowden directed the officer in the control station to open the cell door, and

Plaintiff “began putting up a little resistance as the Defendants tried to force

him inside of the cell.” Id. at 13. Defendant Dowden ordered Plaintiff to

stop resisting, and then slammed Plaintiff to the floor. Id. Plaintiff says he

continued to resist, so Defendants Dowden and Brown grabbed him and

“forcefully shoved” him into the cell with the other inmate. Id. at 13-14. 

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Plaintiff said the Defendants bent his wrists “in painful positions” when they

shoved him into the cell. ECF No. 47 at 10.

The cell door was secured and Plaintiff was ordered to relinquish his

hand restraints. ECF No. 61 at 14. Plaintiff refused and asked to “either

be removed from the cell or speak to the OIC.” Id. Plaintiff said he “was

refusing to relinquish his hand restraints because he was in fear for his

life.” ECF No. 1 at 14. Defendant Dowden “slammed the flap, smiled &

winked at the unknown white inmate inside the cell with” him, then walked

away from the cell door. Id.

Immediately after Defendants left the cell, the inmate told Plaintiff he

was “going to kill your f— ass.” ECF No. 61 at 15. The inmate then

attacked Plaintiff and began choking him. Id. Plaintiff said that while his

hands were cuffed behind his back, the other inmate was cuffed with his

hands in the front “thereby making his attack easy.” Id. Plaintiff tried to

defend himself by kicking the other inmate several times. Id. After a short

struggle, Plaintiff and the other inmate stood on opposite sides of the cell

“in a standoffish position until the Defendants returned.” Id.

Defendants Massey and Dowden returned with another female officer

and ordered the other inmate to “go to a safe corner in the cell.” ECF No.

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61 at 15. Once the inmate was in a safe position, Defendant Massey

ordered the female officer to spray Plaintiff with chemical agents. Id. at 15-

16.7

 The other inmate began yelling, “I can’t breathe” and kicking the cell

door. Id. at 16. Defendant Dowden opened the cell door flap to re-cuff the

inmate “behind his back [and] removed him from the cell.” Id. Plaintiff was

left inside the cell for approximately four or five minutes before the

Defendants removed him from the cell. Id. 

Plaintiff was taken to a cold water shower, given clothing, and

escorted to the nurse’s station for examination. Id. at 16-17. Plaintiff said

that he did “not report any major injuries to the nurse because he didn’t

have any.” Id. at 17; see also ECF No. 47 at 53-54 (Plaintiff’s declaration).8

Plaintiff did, however, assert in his first response to summary judgment that

he suffered “physical pain” from the use of the chemical agents, and he

pointed to several exhibits (8, 12, and 14) submitted with his response.9

 7 Plaintiff points out that during this encounter with Defendant Massey, she did not

give him an order to relinquish his hand restraints but, instead, ordered the other officer

to spray Plaintiff with the OC spray. ECF No. 47 at 53. 

 8 Plaintiff against said he “did not suffer any medical injuries, however, [he] did feel

emotionally distressed due to the” events. ECF No. 47 at 53-54.

 9

 Exhibit 8 is the Department’s administrative rule on the use of force which

describes the chemical agent as an “irritant agent that causes a burning sensation and

tearing of the eyes, nasal discharge, and skin and upper respiratory irritation.” ECF No.

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ECF No. 47 at 40. After the nurse examined him, Defendants escorted

Plaintiff back to his original cell where he was “housed alone.” ECF No. 61

at 17. 

2. Defendants’ Evidence10

Defendant Audrey Massey was a Captain at Franklin Correctional

Institution on July 28, 2018. ECF No. 45-1 at 1 (Ex. A). She submitted a

declaration, acknowledging that she did not specifically recall this incident,

but after reviewing relevant reports, she stated that she had been informed

that Plaintiff “was verbally refusing to have another inmate placed into his

cell.” ECF No. 45-1 at 1-2. She arrived at Plaintiff’s cell after Defendant

Dowden had counseled with the Plaintiff in an attempted to have Plaintiff

accept his cell mate, but Plaintiff refused to comply. Id. at 2. She states

that Plaintiff eventually complied and “was placed in hand restraints, and

escorted off the wing, so his new cell mate could be placed in the cell.” Id.

Defendant Massey said that the new cell mate was “placed in the cell with

his hands cuffed behind his back.” Id. Plaintiff was then returned to the

47 at 72. That does not provide evidence that Plaintiff suffered those conditions.

 10 Defendants’ supplemental summary judgment motion did not include any new

evidence but cited only to the evidence presented with the first motion, ECF No. 45. 

ECF No. 67 at 3-6.

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cell, but “refused to relinquish his hand restraints.” Id. Staff approached

his “cell several times to retrieve the hand restraints,” but Plaintiff

“repeatedly refused.” Id. 

Defendant Massey “then approached the cell and gave [Plaintiff] a

final order to relinquish his hand restraints, to which he again refused.” Id.

Defendant Massey directed Officer Dana Keith to administer one burst of

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

which struck [Plaintiff] in the head and upper torso area.” Id. Plaintiff then

complied with “further orders and was removed from the cell and taken off

the wing” and given a decontamination shower. ECF No. 45-1 at 2 (Ex. A). 

Plaintiff was issued clean clothing, a post use of force physical

examination, and “secured into a decontaminated cell.” Id. at 3. 

Defendant Massey declares that she “never personally used physical

force” on the Plaintiff, but authorized and observed the use of chemical

agents when Plaintiff refused to relinquish his hand restraints. Id. She

denies observing any officer threaten Plaintiff, use unnecessary force, or

otherwise abuse him. Id. Further, Defendant Massey denies verbally

threatening him, retaliating against him for having filed a lawsuit, or “any

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other reason.” Id. Following the incident, Plaintiff received a disciplinary

report for disobeying an order and was found guilty of that charge. Id. 

Defendant Massey also submitted a supplemental declaration11 in

which she specifically denies failing to provide Plaintiff with “protection from

any inmate or staff member who presented a known risk of danger” to him. 

ECF No. 55-1 (Ex. A). She said that she “never received any information”

that Plaintiff “was in verifiable danger of being physically attacked by his

new cell mate.” Id. She further denies threatening Plaintiff, instigating

others to assault him, or retaliating against him for filing grievances or

lawsuits. Id. 

Similar to Defendant Massey, Defendant Andrew Dowden did not

specifically recall this incident with Plaintiff but after reviewing reports

concerning the incident, he also submitted a declaration. ECF No. 45-2

(Ex. B). Defendant Dowden was employed as a Correctional Sergeant at

Franklin Correctional Institution and was assigned as a dormitory

supervisor on July 28, 2018. Id. at 1. On that evening, Defendant Dowden

gave Plaintiff a verbal order to submit to hand restraints at approximately

 11 The declaration contains a typed signature, not a handwritten signature. ECF No.

55-1 at 2. It is nevertheless accepted. Any deficiency with the form could easily be

corrected with personal testimony in a trial or evidentiary hearing. 

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6:35 p.m. Plaintiff did not initially comply, but he ultimately complied with

Defendant Dowden’s second order. Id. at 2. 

Defendant Dowden said that after Plaintiff was returned to his

assigned cell, he again “disregarded verbal orders to relinquish his hand

restraints, and only complied after chemical agents were applied to his

cell.” Id. Defendant Dowden denied using any force on Plaintiff and said

he “did not observe the use of force by application of chemical agents.” Id.

He also never observed any officer threaten Plaintiff, use unnecessary

physical force, or otherwise abuse him. Id. Defendant Dowden wrote

Plaintiff a disciplinary report for disobeying an order, for which he was

found guilty following a disciplinary hearing. Id. at 2. 

Defendant Dowden also submitted a supplemental declaration in

which he specifically denies failing to provide Plaintiff with “protection from

any inmate or staff member who presented a known risk of danger” to him. 

ECF No. 55-2 (Ex. B). He likewise said that he “never received any

information” that Plaintiff “was in verifiable danger of being physically

attacked by his new cell mate.” Id. Finally, Defendant Dowden denied

threatening Plaintiff, instigating others to assault him, or retaliating against

him for filing grievances or lawsuits. Id. 

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Defendant Ronderious Brown was a Correctional Officer at Franklin

Correctional Institution on July 28, 2018. ECF No. 45-3 at 1 (Ex. C). 

Similar to Defendants Dowden and Massey, Defendant Brown does not

specifically recall the incident but has submitted a declaration after

reviewing relevant reports. Id. at 1. 

Defendant Brown was the operator of the hand held camera which

recorded the “incident involving the application of chemical agents” on the

Plaintiff. Id. at 1-2. While recording the video, Defendant Brown observed

the application of chemical agents which was “reflected in the ‘Report of

Force Used’ concerning that incident.” Id. at 2. Defendant Brown declares

that he “did not use any physical force” on Plaintiff on July 28, 2018, and

did not “observe any officer use unnecessary physical force or abuse”

Plaintiff on that date. Id. 

Similar to Defendants Massey and Dowden, Defendant Brown also

submitted a supplemental declaration. ECF No. 55-3 (Ex. C). He denies

failing to provide Plaintiff with protection and contends he “never received

any information” that Plaintiff “was in verifiable danger.” Id. Further, he

denied threatening Plaintiff, instigating others to assault him, or retaliating

against him for filing grievances or lawsuits. Id. 

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Defendants submitted a copy of the “Report of Force Used” which

shows that Defendant Dowden initially counseled with Plaintiff at 6:31 p.m.

on July 28, 2018, prior to the use of force. ECF No. 45-4 at 1 (Ex. C). The

result of the counseling was “negative,” and the use of force was requested

by Defendant Massey, and approved by Warden Duvall, at 6:53 p.m. Id.

Defendant Massey gave Plaintiff a “final order” at 7:18 p.m. and warned

him that if his “disruptive behavior” continued, “chemical agents [would] be

administered.” Id. The record indicates that chemical agents (OC spray)

were obtained by Defendant Massey at 8:30 p.m. Id. The weight of the

OC spray when checked out was 438 grams. Id. 

Plaintiff reportedly became “disruptive again” at 8:55 p.m. ECF No.

45-4 at 1. Officer Dana Keith administered three “one second bursts of

chemical agents” (OC spray)” through the “chain breached cell door,”

hitting Plaintiff “in the head and upper torso areas.” Id. Officer Keith used

110 grams of OC spray at 9:08 p.m., and Plaintiff was reported to be

compliant by 9:17 p.m. Id. The use of force was witnessed by Defendants

Massey and Brown. Id.

Three minutes later, at 9:20 p.m., Plaintiff was removed from the cell

and given a shower. ECF No. 45-4 at 1. He was given clean clothing at

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9:43 p.m., a medical evaluation at 10:06 p.m., and placed in a

decontaminated cell at 10:12 p.m. Id. The OC spray canister was weighed

by Defendant Massey at 9:45 p.m. and an ending weigh of 328 grams was

reported. Id. at 2. 

Defendants also submitted a copy of an incident report which was

created based on Plaintiff’s allegation in an informal grievance that

Defendants did not protect his safety, threatened him, “hurled insults at”

him, and physically assaulted him on July 18, 2018. ECF No. 45-5 at 1

(Ex. E). Plaintiff complained that he was in fear and could not consent to a

cellmate. Id. He generally related the same events as he alleged in the

amended complaint. Id. at 1-2; cf. ECF No. 61 at 7-17. Plaintiff claimed

the conduct of the Defendants “was egregious,” in violation of the Rules of

Prohibited Conduct, and said they infringed his rights by “failing to safely

protect” him and physically abused him. ECF No. 45-5 at 2. 

Lieutenant Cortney Gray responded to the allegations made in the

grievance by completing an Incident Report on August 7, 2018. Id. at 1. 

Lt. Gray reviewed the fixed wing video camera of the incident at Plaintiff’s

cell on July 18, 2018. Id. Lt. Gray noted that at 19:24 hours, Plaintiff

refused to receive a cellmate. Id. He was placed in restraints and escorted

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off the wing while the other inmate was placed in the cell. Id. At 19:33

hours, Plaintiff was placed back in the cell, but he refused “to relinquish his

hand restraints to security staff.” Id. at 1. Staff approached the cell

“several times to retrieve” Plaintiff’s restraints, but he refused. Id. Captain

Massey approached the cell at 21:10 hours and gave Plaintiff a final order

to relinquish his restraints.12 Id. At 21:16, “the uninvolved inmate was

removed from the cell.” Id. at 1-2. Two minutes later, at 21:18, Plaintiff

was removed from the cell and the wing. Id. at 2. 

Lt. Gray specifically noted in the report that the inmate who was

placed in Plaintiff’s cell had “his hands cuffed behind his back” both when

entering the cell, and when he was removed after the use of force. Id. at 1-

2. Secondly, Lt. Gray noted that Plaintiff’s allegations “against staff were

not observed in the video recording.”13 Id. at 2. Lt. Gray concluded that

Plaintiff’s allegation that he was “subjected to Cruel and Unusual

Punishment because he was not being disorderly” was “false as the

minimal amount of force necessary was utilized in order to retrieve the

 12 Chemical agents were administered one minute later. ECF No. 45-6 at 1 (Ex. F).

 13 Notably, neither party submitted the video as evidence. Plaintiff said in his

response that he had “substantiated his allegations by presenting specific video

evidence,” ECF No. 69 at 3, but he did not provide the video to this Court. 

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handcuffs from” Plaintiff since he “disobeyed security staffs direct orders to

relinquish the hand restraints.” Id.

Defendants also submitted a copy of the “MINS” incident report which

reveals that at approximately 8:42 pm on July 29, 2018,14 Plaintiff “refused

to relinquish the hand restraints.” ECF No. 45-6 at 1 (Ex. F). At

approximately 9:11 p.m., Officer Keith administered the chemical agents to

Plaintiff’s head and upper torso area. Id. At approximately 9:16 p.m.,

Plaintiff complied with “all lawful orders” and he was removed from his cell,

given a shower, clean clothing, and then “secured back into a

decontaminated cell.” Id. The report also noted that Plaintiff would remain

in administrative confinement pending a disciplinary charge for “disobeying

verbal or written order.” Id. at 2. 

The disciplinary report charged Plaintiff with not complying with

Defendant Dowden’s order to submit to hand restraints, and then failing to

comply with verbal orders to relinquish his hand restraints. ECF No. 45-7

(Ex. G). Plaintiff entered a “not guilty” plea to the charge but was found

guilty. Id. The punishment imposed was 30 days in disciplinary

confinement and he was denied canteen for 30 days. Id. at 2. 

 14 All other evidence reveals the incident occurred on July 28, 2018. 

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Finally, the “emergency room record” of Plaintiff’s post use of force

examination was also provided. ECF No. 45-8 at 1 (Ex. H). Plaintiff denied

any injuries and no injuries were noted by medical staff. Id. No treatment

was given and Plaintiff was advised to notify nursing if his condition

changed. Id. 

Analysis

1. Use of Excessive Force

Plaintiff alleged an excessive force claim “against all Defendants.” 

ECF No. 61 at 18. Defendants’ second supplemental motion for summary

judgment asserts that Defendant Massey “was fully authorized and justified

to direct” the use of chemical agents into Plaintiff’s cell. ECF No. 67 at 8. 

Defendant contends that because force is permissible when a prisoner

refuses to comply with orders of correctional staff, her actions were

reasonable and necessary to maintain order. Id. at 8-9. 

Before addressing the defense presented by Defendant Massey, this

claim has been considered as asserted against Defendants Dowden and

Brown. The claim against them is based on a use of physical force and not

on the use of chemical agents. 

Case No. 4:20cv410-MW-MAF
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Plaintiff’s evidence was that he resisted Defendants’ efforts when

they were trying to “force him” to go inside his assigned cell with the

unknown inmate. Plaintiff said that both Defendants Dowden and Brown

grabbed him, bent his wrists, and “forcefully shoved” him into the cell with

the other inmate. He further said Defendant Dowden slammed him to the

ground. 

Defendants Dowden and Brown deny using any physical force on the

Plaintiff. Defendants have presented no evidence concerning Plaintiff’s

alleged refusal to go into his cell. Rather, Defendants report only that

chemical agents were used when Plaintiff refused to relinquish his

restraints. 

The Eighth Amendment forbids cruel and unusual punishment. 

Farrow v. West, 320 F.3d 1235, 1242 (11th Cir. 2003). A claim that a

prison official unnecessarily used excessive physical force on a prisoner

falls within the Cruel and Unusual Punishments Clause. The “core judicial

inquiry” for this claim uses the standard set forth in Whitley v. Albers, 475

U.S. 312, 106 S. Ct. 1078, 89 L. Ed. 2d 251 (1986): “whether force was

applied in a good-faith effort to maintain or restore discipline, or maliciously

and sadistically for the very purpose of causing harm.” Hudson v.

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McMillian, 503 U.S. 1, 6, 112 S. Ct. 995, 998, 117 L. Ed. 2d 156 (1992)

(quoting Whitley, 475 U.S. at 320-21, 106 S. Ct. at 1085); see also

Sconiers, 946 F.3d at 1265 and 1267 (noting that the core inquiry is “the

nature of the force - specifically, whether it was nontrivial and was applied

maliciously and sadistically to cause harm”). 

It has been well established for thirty years now that “the use of

excessive physical force against a prisoner may constitute cruel and

unusual punishment [even] when the inmate does not suffer serious injury.” 

Wilkins v. Gaddy, 559 U.S. 34, 34, 130 S. Ct. 1175, 1176, 175 L. Ed. 2d

995 (2010) (quoting Hudson, 503 U.S. at 4, 112 S. Ct. 995). The Supreme

Court has held that the “core judicial inquiry” is “not whether a certain

quantum of injury was sustained, but rather ‘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 7, 112 S. Ct. 995 (quoted

in Wilkins, 559 U.S. at 37, 130 S. Ct. at 1178). 

However, not “every malevolent touch by a prison guard gives rise to

a” civil rights claim. 503 U.S. at 9, 112 S. Ct. 995 (quoted in Wilkins, 559

U.S. at 37, 130 S. Ct. at 1178). “An inmate who complains of a ‘push or

shove’ that causes no discernible injury almost certainly fails to state a

Case No. 4:20cv410-MW-MAF
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valid excessive force claim.” 559 U.S. at 38, 130 S. Ct. at 1178 (citations

omitted).

Shoving an inmate in an effort to gain compliance with a command is

not, in and of itself, unconstitutional. Here, Plaintiff admitted that he did not

comply with the command given to him. He alleged that his refusal to go

into the cell with the unknown inmate precipitated the use of physical force

by Defendants Dowden and Brown, followed by the use of chemical agents

as directed by Defendant Massey. Although whether this incident

happened at all is disputed by the parties, it still remains that Plaintiff

identified no injury or harm from the force allegedly used by Defendants

Dowden and Brown. Plaintiff said only that his wrists were bent in a painful

position and he was shoved into the cell. Plaintiff provided no evidence of

a bruise, swelling, or sprained wrist. In this situation, even accepting

Plaintiff’s evidence as true, the use of some force was necessary because

Plaintiff admittedly refused to comply with a command. Moreover, the force

used, according to Plaintiff, was not “excessive” - the hallmark of an

“excessive force” claim - because Plaintiff’s own evidence shows the force

used was minimal and harmless. Summary judgment should be granted in

favor of Defendants Dowden and Brown on the use of force claim.

Case No. 4:20cv410-MW-MAF
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Plaintiff’s excessive force claim against Defendant Massey is

evaluated separately because it is based on the use of chemical agents

that were administered against Plaintiff when he refused to comply with

Defendant Massey’s verbal order. Defendant Massey did not personally

use the force challenged, but she directed application of chemical agents, 

which is a viable basis for an excessive force claim.

Analysis of an excessive force claim considers: “[1] the need for

application of force, [2] the relationship between that need and the amount

of force used, [3] the threat ‘reasonably perceived by the responsible

officials,’ ... [4] ‘any efforts made to temper the severity of a forceful

response,’” and “[5] [t]he absence of serious injury.” Hudson, 503 U.S. at

7, 112 S. Ct. at 999 (quoting Whitley, 475 U.S. at 321, 106 S. Ct. at 1085)

(quoted in Miles v. Jackson, 757 F. App’x 828, 829 (11th Cir. 2018)); see

also Kingsley v. Hendrickson, 576 U.S. 389, 402, 135 S. Ct. 2466, 2476,

192 L. Ed. 2d 416 (2015). Courts must take into account “the ‘legitimate

interests that stem from [the government’s] need to manage the facility in

which the individual is detained,’” and defer “to ‘policies and practices that

in th[e] judgment’ of jail officials ‘are needed to preserve internal order and

discipline and to maintain institutional security.’” Kingsley, 576 U.S. at 397,

Case No. 4:20cv410-MW-MAF
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135 S. Ct. at 2473 (quoting Bell v. Wolfish, 441 U.S. 520, 540, 547, 99 S.

Ct. 1861, 60 L. Ed. 2d 447 (1979)). 

Demonstrating an excessive use of force “requires a prisoner to

establish two elements—one subjective and one objective: the official must

have both ‘acted with a sufficiently culpable state of mind’ (the subjective

element), and the conduct must have been ‘objectively harmful enough to

establish a constitutional violation.’” Sconiers, 946 F.3d at 1265 (quoting

Hudson, 503 U.S. at 8). To meet the subjective element, a prisoner must

show that the excessive force was “sadistically and maliciously applied for

the very purpose of causing harm.” 946 F.3d at 1265 (quoting Johnson v.

Breeden, 280 F.3d 1308, 1321 (11th Cir. 2002)); see also Thomas v.

Bryant, 614 F.3d 1288, 1304 (11th Cir. 2010). The objective component

“focuses on whether the official’s actions were ‘harmful enough,’ Hudson,

503 U.S. at 8, 112 S. Ct. 995, or ‘sufficiently serious,’ Wilson v. Seiter, 501

U.S. 294, 298, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991), to violate the

Constitution.” 946 F.3d at 1265. Nevertheless, “[u]nder the objective

component of an Eighth Amendment claim, the force used, not the injury

sustained, is what ‘ultimately counts.’” Id. at 1267 (quoting Wilkins, 559

U.S. at 38).

Case No. 4:20cv410-MW-MAF
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Here, there is evidence that Plaintiff refused to comply with verbal

orders given to relinquish his handcuffs. Plaintiff admittedly did not allow

the officers to remove his handcuffs, telling them that he was afraid to be in

the cell with the other inmate. However, viewing Plaintiff’s evidence in the

light most favorable to him as the non-moving party, he was not sprayed for

failing to comply with an order to relinquish handcuffs. Instead, the use of

chemical agents came later - after Plaintiff and his cellmate had an

altercation inside the cell. Further, even though there was an altercation in

the cell between the two inmates, Plaintiff reported that he was the only

one sprayed. Plaintiff said the other inmate was instructed to go to a safe

corner in the cell, and the chemical agents were directed only at him. ECF

No. 47 at 52-53. The inference is that Plaintiff was sprayed to punish him,

not for the purpose of restoring order because, in that situation, both

inmates would have been sprayed with chemical agents if it was necessary

to break up a cell scuffle. 

Plaintiff also provided evidence that all three Defendants were

together in the holding cell with him when they called him derogatory

names, promised him that he “would never make it out of prison alive,” and

told him “they had paid the inmate” who was to be placed in Plaintiff’s cell

Case No. 4:20cv410-MW-MAF
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“to f— [him] up.” The Defendants told Plaintiff he was going into the cell

with that inmate “one way or another.” If that evidence were believed by a

jury, it would be reasonable to conclude that the use of chemical agents

was not for a lawful, penological purpose but, instead, was “sadistically and

maliciously applied for the very purpose of causing harm.” 946 F.3d at

1265. The inference which can be made in Plaintiff’s favor is that when the

inmate placed in the cell failed to hurt Plaintiff, chemical agents were used

instead. In the Eleventh Circuit, “‘where chemical agents are used

unnecessarily, without penological justification, or for the very purpose of

punishment or harm,” such use may be the basis of an Eighth Amendment

claim. Thompson v. Smith, 805 F. App’x 893, 902 (11th Cir. 2020) (citing

to Thomas v. Bryant, 614 F.3d 1288, 1311 (11th Cir. 2010)). 

Defendants’ evidence, however, is that Plaintiff was sprayed for

failing to comply with a lawful order to relinquish his handcuffs. A

prisoner’s failure to comply with verbal orders of a correctional officer

provides a basis for a use of force. Miles, 757 F. App’x at 830 (finding

“there was a need for that force because, as Miles conceded in his

deposition, he not only failed to comply with officer Jackson’s order to go

further into the jail cell, but also evaded Jackson’s attempt to get him to

Case No. 4:20cv410-MW-MAF
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comply”) (citing Bennett v. Parker, 898 F.2d 1530, 1533 (11th Cir. 1990)

(“The need for the use of force [was] established by the undisputed

evidence that [the prisoner] created a disturbance”); Sconiers, 946 F.3d at

1264 (11th Cir. 2020) (finding it is permissible for correctional officers to

“use pepper-spray or a takedown to subdue an inmate as long as a valid

penological reason supports the use of such force”) (citing Thomas, 614

F.3d at 1301-11, and Danley v. Allen, 540 F.3d 1298, 1306 (11th Cir.

2008)). 

The evidence on this claim is disputed. A jury should decide whether

chemical agents were used for a lawful purpose or for the purpose of

causing Plaintiff harm in violation of Plaintiff’s Eighth Amendment rights. 

When this issue was originally considered during the first summary

judgment stage of litigation, the dispute of fact was noted but found to be

immaterial because of the objective component which considers whether

an official’s actions were “harmful enough” or “sufficiently serious” to violate

the Constitution. 946 F.3d at 1265. As noted above, not every push or

shove is sufficient to show a constitutional violation, and “routine

discomforts” or “de minimis uses of physical force” are insufficient to violate

Case No. 4:20cv410-MW-MAF
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the Eighth Amendment. Hudson, 503 U.S. at 9-10, 112 S. Ct. at 1000

(quotation marks omitted) (quoted in Thompson, 805 F. App’x at 901). 

The Eighth Amendment’s prohibition of ‘cruel and unusual’

punishments necessarily excludes from constitutional

recognition de minimis uses of physical force, provided that the

use of force is not of a sort repugnant to the conscience of

mankind.” Id. at 37-38, 130 S. Ct. 1175. Instead, the Eighth

Amendment prohibits force that offends “contemporary

standards of decency,” regardless of whether “significant injury

is evident,” though the extent of injury may shed light on the

amount of force applied or “whether the use of force could

plausibly have been thought necessary.”

Sconiers, 946 F.3d at 1265-66 (quoting Wilkins, 559 U.S. at 37, 130 S. Ct.

1175 (citation and internal quotation marks omitted)). 

It is easy to confuse “the requirements for recovering damages under

the PLRA with the standards for proving an Eighth Amendment

excessive-force claim.” Pierre v. Padgett, 808 F. App’x 838, 843 (11th Cir.

2020). The failure to show an entitlement to compensatory damages does

not mean a prisoner has failed to support his claim. A “prisoner need not

prove that he suffered a more than de minimis injury to establish an Eighth

Amendment violation.” Wilkins, 559 U.S. at 39–40 (quoted in Pierre, 808 F.

App’x at 843). Where force is not used to restore order or maintain

discipline but, instead, is used to cause harm, an inmate’s Eighth

Case No. 4:20cv410-MW-MAF
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Amendment rights have been violated. That is so whether or not a prisoner

has been fortunate enough “to escape without serious injury.” Wilkins, 559

U.S. at 38, 130 S. Ct. at 1179. 

It is well recognized that “being pepper sprayed sadistically and

without penological justification is not a routine discomfort of confinement.” 

Thompson v. Smith, 805 F. App'x 893, 905 (11th Cir. 2020). A prisoner

presents a valid claim based on such an incident regardless of whether he

shows an entitlement to compensatory or punitive damages. Accordingly,

because the evidence is disputed as to whether or not the use of chemical

agents on Plaintiff was for a valid penological purpose, the motion for

summary judgment should be denied as to Defendant Massey on Plaintiff’s

claim for the unnecessary and excessive use of force.

2. Retaliation

Plaintiff asserted a First Amendment retaliation claim against all

Defendants. ECF No. 61 at 18. Defendants deny that claim and contend

Plaintiff’s allegations are “unsubstantiated.” ECF No. 67 at 12. All

Defendants specifically declare that they did not threaten Plaintiff, instigate

others to assault him, or otherwise retaliate against him for filing grievances

or lawsuits. Id. 

Case No. 4:20cv410-MW-MAF
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It is well established that prisoners have a right under the First

Amendment to file grievances and petition the government for redress of

grievances. Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008);

Thomas v. Evans, 880 F.2d 1235, 1242 (11th Cir.1989); Farrow v. West,

320 F.3d 1235, 1248 (11th Cir. 2003); O’Bryant v. Finch, 637 F.3d 1207,

1212 (11th Cir. 2011). Prison officials violate the First Amendment when

they threaten a prisoner for writing a grievance, or issue threats to prevent

him from filing a grievance. Pittman v. Tucker, 213 F. App’x 867, 870-71

(11th Cir. 2007) (threats made to deter inmate’s filing of a grievance

violates the First Amendment). The Eleventh Circuit has employed a 3-part

“ordinary firmness” test for evaluating a First Amendment retaliation claim. 

Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005). Under this test,

a plaintiff must establish: (1) that his speech or act was constitutionally

protected; (2) that the defendant’s retaliatory conduct adversely affected

the protected speech; and (3) that there is a causal connection between

the retaliatory actions and the adverse effect on speech. Pittman v.

Tucker, 213 F. App’x 867, 870 (11th Cir. 2007) (citing to Bennett). “A

plaintiff suffers adverse action if the defendant’s allegedly retaliatory

Case No. 4:20cv410-MW-MAF
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conduct would likely deter a person of ordinary firmness from the exercise

of First Amendment rights.” Bennett, 423 F.3d at 1254.

As to the first element, Plaintiff’s right to file a grievance or a lawsuit

is a constitutionally protected right. Smith v. Mosley, 532 F.3d 1270, 1276

(11th Cir. 2008) (“an inmate is considered to be exercising his First

Amendment right of freedom of speech when he complains to the prison's

administrators about the conditions of his confinement”); Farmer v.

Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 1976, 128 L. Ed. 2d 811

(1994) (holding that prison officials are required to “take reasonable

measures to guarantee the safety of the inmates”). Here, Plaintiff has

provided evidence that he had filed grievances and a lawsuit in state court

prior to the incident with the Defendants. He was also placed in

administrative confinement because other inmates told him that his

grievance writing was making it hard on them and they were going to kill

him if he did not remove himself from that institution. 

Plaintiff’s evidence also shows that after he was escorted to the

holding cell outside of Wing 2, the Defendants, collectively, began

threatening him. Plaintiff said Defendant Massey specifically told him she

knew about a lawsuit he had filed against correctional officers at Calhoun

Case No. 4:20cv410-MW-MAF
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Correctional Institution as well as “numerous grievances” he had written

against staff. She told Plaintiff “they were going to get him one way or

another . . . .” Defendant Dowden said Plaintiff “would never make it out of

prison alive” and said “they had paid the white inmate” that was placed in

his cell to “f— him up.” Defendant Dowden also told Plaintiff he could

“write that up” if he wanted to, if he was “alive in the morning.” Defendant

Brown was present and made a derogatory racial slur to Plaintiff, but did

not specifically threaten him. Later, when Defendants Dowden and Brown

returned to take Plaintiff back to his cell, Defendant Dowden asked Plaintiff

if he was “ready to die.” Construing those comments together, and giving

all reasonable inferences to Plaintiff as the non-moving party, Plaintiff has

shown that Defendants collectively threatened him, at least in part,

because of Plaintiff’s prior lawsuit15 and for filing grievances. 

The Court further concludes that Defendants’ conduct adversely

affected the protected speech, the second part of the 3-part test. Bennett,

423 F.3d at 1250-51. The proper inquiry is whether the challenged conduct

“would likely deter a person of ordinary firmness from the exercise of his

 15 Plaintiff previously submitted an exhibit which demonstrates he had filed a case in

state court in Calhoun County on April 5, 2018. ECF No. 47, Ex. 3 (ECF No. 47at 59).

Case No. 4:20cv410-MW-MAF
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First Amendment rights.” Pittman, 213 F. App’x at 870 (“plaintiff need not

show that his own exercise of First Amendment rights have been chilled,

but instead a plaintiff can establish an injury if he can show that the

retaliatory acts are sufficiently adverse that a jury could find that the acts

would chill a person of ordinary firmness from exercising his First

Amendment rights”). In this case, Plaintiff’s testimony is that correctional

officers told him they knew he had filed grievances against staff and a

lawsuit. They told him that an inmate had been placed in his cell and was

paid to “f— [him] up.” ECF No. 47 at 49-50. Under these circumstances, a

reasonable person would be deterred from filing further grievances. 

Finally, there is a causal connection between the Defendants’ actions and

the adverse effect on speech. 

Plaintiff has demonstrated the violation of his First Amendment rights. 

Because the evidence is disputed as to whether or not Defendants made

any of the threats, summary judgment must be denied as to the First

Amendment retaliation claim.

3. Failure to Protect

Plaintiff’s failure to protect claim is also brought against all three

Defendants. ECF No. 61 at 18. Defendants contend they were not

Case No. 4:20cv410-MW-MAF
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deliberately indifferent to Plaintiff’s need for protection. ECF No. 67 at 12. 

The basis for that defense is Defendants’ denial of any knowledge that

Plaintiff was in danger. Id. at 13-15. 

“A prison official violates the Eighth Amendment 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.” Caldwell v. Warden,

FCI Talladega, 748 F.3d 1090, 1099 (11th Cir. 2014) (quoted in Brooks v.

Warden, 800 F.3d 1295, 1300 (11th Cir. 2015)). “To prevail on such a

claim brought under § 1983, the plaintiff must show: (1) a substantial risk of

serious harm; (2) the defendants’ deliberate indifference to that risk; and

(3) a causal connection between the defendants’ conduct and the Eighth

Amendment violation.” Brooks, 800 F.3d at 1300. 

The first element, a substantial risk of serious harm, is evaluated

using an objective standard. Id. “There must be a ‘strong likelihood’ of

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

constitute deliberate indifference.” Brooks, 800 F.3d at 1301 (citations

omitted). Here, Plaintiff has shown that he was placed in administrative

confinement pending a determination of “protective management status”

based on threats from other inmates to harm him. When confronted with

Case No. 4:20cv410-MW-MAF
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an unknown inmate being placed in his cell, Plaintiff repeatedly advised

Defendants of his fear of assault. Moreover, according to Plaintiff’s

evidence, Defendants placed the inmate in his cell to harm him and paid

him to do so. Thus, Defendants had knowledge that Plaintiff was in danger

of assault. When Plaintiff was left in the cell with the other inmate, he was

attacked. 

Defendants deny instigating any violence against Plaintiff. They deny

threatening him or being aware of any information that Plaintiff was in

“verifiable danger.” Because there is a genuine dispute of material fact on

Plaintiff’s failure to protect claim, summary judgment cannot be granted.

4. State law claim for Assault and Battery

Plaintiff asserted a state law claim for assault and battery against all

named Defendants. ECF No. 61 at 18. Defendants contend that because

the elements for a 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,” the claim should also “be dismissed on summary

judgment.” ECF No. 67 at 16. 

The crucial question in deciding a state-law assault and battery claim

against law enforcement or correctional officers is “whether a reasonable

Case No. 4:20cv410-MW-MAF
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officer would believe that this level of force is necessary in the situation at

hand.” Christie ex rel. estate of Christie v. Scott, 923 F. Supp. 2d 1308,

1328–29 (M.D. Fla. 2013) (quoting Lee v. Ferraro, 284 F.3d 1188, 1197

(11th Cir. 2002). “If the force used was ‘clearly excessive’ and not

‘reasonable under the circumstances,’ City of Miami v. Sanders, 672 So.2d

46, 47 (Fla. 3d DCA 1996), the Defendants may be liable for assault and

battery under Florida law.” Christie, 923 F. Supp. 2d at 1329; see also

Cutino v. Untch, 79 F. Supp. 3d 1305, 1315 (S.D. Fla. 2015) (stating that a

state law “battery claim for excessive force is analyzed by focusing upon

whether the amount of force used was reasonable under the

circumstances”). 

In analyzing the § 1983 excessive force claim against Defendants

Dowden and Brown, it was concluded that the force used against the

Plaintiff was neither unnecessary or excessive. Because Plaintiff

admittedly refused to comply with a command, the use of force was

reasonable. Because Plaintiff was unharmed, the force was not excessive.

Summary judgment should be granted in favor of Defendants Dowden and

Brown on the state law claim of assault and battery.

Case No. 4:20cv410-MW-MAF
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As for the assault and battery claim brought against Defendant

Massey, summary judgment should be denied. The evidence is disputed

as to whether or not the use of chemical agents on Plaintiff was for a valid

penological purpose. Thus, summary judgment cannot be granted as to

Plaintiff’s state law claim based on this use of force. 

5. State law claim for Intentional Infliction of Emotional Distress

Plaintiff brings this claim against all Defendants, and the Defendants

contend Plaintiff has “failed to adequately plead or present sufficient

evidence to support” this claim. ECF No. 67 at 16. 

“To state a claim under Florida law for intentional infliction of

emotional distress, a plaintiff must demonstrate ‘(1) intentional or reckless

conduct (2) that is outrageous in that it is beyond all bounds of decency

and utterly intolerable in a civilized community (3) and that causes the

victim emotional distress (4) that is severe.’” Kim v. Jung Hyun Chang, 249

So. 3d 1300, 1305 (Fla. Dist. Ct. App. 2018) (citations and internal

quotation marks omitted) (quoted in Hammer v. Sorensen, 824 F. App’x

689, 694 (11th Cir. 2020)). Under the “outrageous” element of the claim, it

“is not enough ‘that the defendant has acted with an intent which is tortious

or even criminal, or that he has intended to inflict emotional distress, or

Case No. 4:20cv410-MW-MAF
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even that his conduct has been characterized by ‘malice,’ or a degree of

aggravation which would entitle the plaintiff to punitive damages for another

tort.’” Williams v. City of Minneola, 575 So. 2d 683, 691 (Fla. Dist. Ct. App.

1991) (citation and quotation marks omitted) (quoted in Hammer, 824 F.

App’x at 694). Florida law imposes a “high burden” to show conduct that is

“outrageous,” “atrocious,” or “utterly intolerable in a civilized society.” Scott

v. Walmart, Inc., 528 F. Supp. 3d 1267, 1273 (M.D. Fla. 2021). “Generally,

the case is one in which the recitation of the facts to an average member of

the community would arouse his resentment against the actor, and lead

him to exclaim, ‘Outrageous!’ ”). Garcia v. Carnival Corp., 838 F. Supp. 2d

1334, 1339 (S.D. Fla. 2012).

An allegation that correctional officers have set up a prisoner to be

attacked by other prisoners is disturbing, but it is not outrageous. That is

especially true when compared16 with other cases of even more disturbing

conduct, none of which held that the conduct did not rise to the level of

intentional infliction of emotional distress:

 16 The list of cases were cited in a prior case decided in this Court, Whidden v.

Roberts, No. 5:19-CV-80-MCR-MJF, 2020 WL 6566961, at *9 (N.D. Fla. July 28, 2020),

report and recommendation adopted, No. 5:19-CV-80-MCR-MJF, 2020 WL 6566322

(N.D. Fla. Nov. 9, 2020).

Case No. 4:20cv410-MW-MAF
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# Pena v. Marcus, 715 F. App’x 981, 982, 989 (11th Cir. 2017)

(holding that sheriff deputies' conduct was not outrageous for

purposes of an intentional infliction of emotional distress claim

when they broke into plaintiff's home to search it, fractured

plaintiff's foot, hit plaintiff in the shoulder with a rifle, and caused

physical damage to her home).

# Rubio v. Lopez, 445 F. App’ x 170, 175 (11th Cir. 2011)

(holding that the plaintiff had failed to allege sufficiently

outrageous conduct where a deputy Sheriff hobble-tied him on

black asphalt pavement in the sun, resulting in second degree

burns to plaintiff's face and chest).

# Christman v. Walsh, 416 F. App'x 841, 846 (11th Cir. 2011)

(holding that citing the Christmans for criminal contempt and

ordering them to be imprisoned for ten days without a hearing

“did not rise to the level of extreme, outrageous conduct that

was utterly intolerable in a civilized community”).

# Foreman v. City of Port St. Lucie, 294 F. App’x 554, 557-58

(11th Cir. 2008) (holding that police officer’s act of pointing an

unloaded BB gun at a man's chest and pulling the trigger while

wife, who was unaware the gun was not loaded, watched, was

“not beyond all possible bounds of decency, and to be regarded

as atrocious, and utterly intolerable in a civilized community”).

# Garcia, 838 F. Supp. 2d at 1336, 1339 (allegations that after a

“disagreement” with a bartender onboard a cruise ship, seven

crew members grabbed Garcia causing her to have a panic

attack; they kicked and punched her, threw her to the ground,

handcuffed her, dragged her across the floor while restrained,

and confined her to her cabin until the following day were

insufficient to state a claim for intentional infliction of emotional

distress).

# Hill v. Lee Cty. Sheriff's Office, No. 2:11-cv-242-FtM-29SPC,

2012 WL 4356818, at *2, 4 (M.D. Fla. Sept. 24, 2012) (holding

Case No. 4:20cv410-MW-MAF
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that falsely accusing, arresting, detaining, and prosecuting a

person for a crime he did not commit was not sufficiently

“outrageous” conduct to state a claim for intentional infliction of

emotional distress).

# Frias v. Demings, 823 F. Supp. 2d 1279, 1289 (M.D. Fla. 2011)

(holding that an officer’s conduct was not sufficiently

outrageous where the officer followed an unarmed witness into

her apartment, grabbed her arms, falsely arrested her,

handcuffed her and took her out to his patrol car while she was

wearing only a towel).

# Vamper v. United Parcel Serv., Inc., 14 F. Supp. 2d 1301,

1306-07 (S.D. Fla. 1998) (holding that the defendants’ conduct

was insufficiently outrageous even though the defendants

fabricated a reckless driving charge against the plaintiff in an

effort to terminate him, called him a racial epithet, denied him

pay and other bonuses, suspended and demoted him, and

physically struck him on the ankle). 

# Valdes v. GAB Robins N. Am. Inc., 924 So. 2d 862, 866 (Fla.

3d DCA 2006) (holding that a false report that plaintiff had

committed the crime of insurance fraud—which resulted in the

plaintiff's arrest—“is not the sort of outrageous conduct”

sufficient to state a claim for intentional infliction of emotional

distress).

# Legrande v. Emmanuel, 889 So. 2d 991, 995 (Fla. 3d DCA

2004) (holding that falsely accusing a minister in front of his

congregation of the crime of theft was not sufficiently

outrageous behavior).

# Scheller v. Amer. Med. Intern., Inc., 502 So. 2d 1268, 1269,

1271 (Fla. 4th DCA 1987) (holding that the intentional

falsification of documents used in a civil trial in conjunction with

attempts to bribe witnesses to testify falsely in a civil trial were

Case No. 4:20cv410-MW-MAF
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not sufficiently outrageous to support a claim of intentional

infliction of emotional distress).

# Whidden, 2020 WL 6566961, at *9 (plaintiff’s claim that

defendants made false statements so plaintiff would be

unjustifiably arrested, imprisoned, and prosecuted and looked

upon by the community as a person of ill repute based on a

“wanted poster” were insufficient to state a claim for intentional

infliction of emotional distress).

As demonstrated by the cases above, threats or potential harm – and

even the infliction of actual harm – is not sufficient by itself to meet the

standard to support such a claim.

Accepting Plaintiff’s evidence as true that Defendants paid an inmate

to assault him and forced him into a cell with the inmate is unacceptable,

unprofessional, and unconstitutional. However, that conduct does not rise

to the level of such extreme conduct that it meet’s Florida’s standard to

support a claim of intentional infliction of emotional distress. Summary

judgment should be granted in Defendants’ favor on this claim.

RECOMMENDATION

In light of the foregoing, it is respectfully RECOMMENDED that

Defendants’ motion for summary judgment, ECF No. 67, be GRANTED in

part and DENIED in part. Summary judgment should be granted in favor

of Defendants Dowden and Brown on Plaintiff’s § 1983 claim for the use of

Case No. 4:20cv410-MW-MAF
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excessive force and the state law assault and battery claim, and summary

judgment should be granted in favor of all Defendants on the state law

claim for intentional infliction of emotional distress. Summary judgment

should be denied as to all other claims because there is a genuine dispute

of material fact. 

IN CHAMBERS at Tallahassee, Florida, on January 27, 2023.

 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.

Case No. 4:20cv410-MW-MAF