IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

RANDY L. WOULLARD,

Plaintiff,

vs. CASE NO: 3:20-CV-5421-LC-MAF

SERGEANT ERYN CARTER,

Defendant.

_______________________/

REPORT AND RECOMMENDATION

Plaintiff, Randy L. Woullard, an inmate proceeding pro se, initiated this 

civil rights action, pursuant to 42 U.S.C. § 1983, and was granted leave to 

proceed in forma pauperis. ECF Nos. 1, 4. The amended complaint, ECF 

No. 8, was served upon Defendant Eryn Carter who filed an answer. ECF 

Nos. 18, 21. This Cause is currently before the Court upon Carter’s motion 

for summary judgment. ECF No. 51. Woullard did not file any dispositive 

motion and did not file a response to the motion for summary judgment.

After careful review, for the reasons stated below, Carter’s “Motion for 

Summary Judgment,” ECF No. 51, should be DENIED and certain claims 

against Carter should PROCEED.

Case 3:20-cv-05421-MCR-MAF Document 63 Filed 06/10/21 Page 1 of 17
Page 2 of 17

Case No: 3:20-CV-5421-LC-MAF

I. Allegations of Woullard’s Amended Complaint, ECF No. 8.

Woullard alleges that, while he was an inmate at Santa Rosa 

Correctional Institution, he was sexually harassed and then sexually 

assaulted by Carter, an on-duty sergeant at the time. ECF No. 8. Initially, on 

June 29, 2018, between 10:00 p.m. and 10:40 p.m., Carter told Woullard, 

“I’m going to knock you off,” which was a threat to harm Woullard or, 

alternatively, meant he “want[ed] to have sex with [Woullard].” Id., p. 5. The 

next morning, on June 30, around 6:15 a.m. to 6:25 a.m., Carter came to the 

front of Woullard’s cell and told Woullard to take his clothes off. Id. Woullard

did not respond; and Carter walked away. Id. 

Some hours later, between 8:10 and 8:20 (whether morning or evening 

is unclear from the complaint), officers escorted Woullard’s cellmate to the 

shower and left Woullard in an unsecured cell without restraints. Id. Woullard

claims Carter saw the breach of security but did not intervene or correct the 

officers. Id., p. 5-6. Then, between 8:30 p.m. and 8:40 p.m., Carter entered 

Woullard’s cell and said, “Let’s have fun.” Id., p. 6. Woullard was laying down

in the upper bunk when Carter grabbed Woullard’s right ankle and bent his 

right leg up toward his head causing arthritic pain. Id. Woullard alleges Carter

then pulled Woullard’s shorts and boxers away and penetrated Woullard’s 

rectum with his fingers; Woullard “jerk[ed]” away. Id., p. 6. Carter slapped 

Case 3:20-cv-05421-MCR-MAF Document 63 Filed 06/10/21 Page 2 of 17
Page 3 of 17

Case No: 3:20-CV-5421-LC-MAF

Woullard in the face, walked away, and warned no one should find out about 

the incident as he secured the cell door. Id. Woullard also states, in Section 

V of the complaint, “Defendant Carter unjustly sexually harassed Plaintiff (2) 

time[s] prior to entering Plaintiff’s cell without [the] presence of another staff, 

penetrating Plaintiff’s rectum.” Id., p. 8.

Woullard claims he suffered sharp, temporary rectal pain; shock; chest 

pain; arthritis pain; post-traumatic stress disorder; depressive disorder; 

“humiliation and quality of life.” Id., p. 7. Woullard claims violations of his 

rights under the Eighth Amendment; mental and emotional injuries; and 

seeks to pursue the state tort claims of sexual harassment, sexual battery, 

and battery. Id., p. 8. As relief, Woullard seeks a “state indictment,” which 

the Court construes as a request for criminal prosecution; $100,000 in 

compensatory damages; $500,000 in punitive damages; the recovery of 

court costs including attorney fees; and any other relief the Court deems 

proper. Id., p. 10.

II. Standard of Review

Rule 56(c) of the Federal Rules of Civil Procedure provides that 

summary judgment is proper: 

[i]f the pleadings, depositions, answers to interrogatories, 

and admissions on file, together with the affidavits, if any, 

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

Case 3:20-cv-05421-MCR-MAF Document 63 Filed 06/10/21 Page 3 of 17
Page 4 of 17

Case No: 3:20-CV-5421-LC-MAF

and that the moving party is entitled to judgment as a 

matter of law.

Accordingly, summary judgment should be entered only 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. 

In such a situation, there can be ‘no genuine issue as to 

any material fact,’ since a complete failure of proof 

concerning an essential element of the non-moving party’s 

case necessarily renders all other facts immaterial. The 

moving party is ‘entitled to judgment as a matter of law’

because the non-moving party has failed to make a 

sufficient showing on an essential element of her case with 

respect to which she has the burden of proof.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citations omitted).

Thus, pursuant to Celotex and its progeny, a movant for summary 

judgment bears the initial responsibility of informing the court of the basis for 

her motion by identifying those parts of the record that demonstrate the 

nonexistence of a genuine issue of material fact. This demonstration need 

not be accompanied by affidavits. Hoffman v. Allied Corp., 912 F.2d 1379, 

1382 (11th Cir. 1990). If the party seeking summary judgment meets the 

initial burden of demonstrating the absence of a genuine issue of material 

fact, the burden shifts to the non-moving party to present sufficient evidence 

to rebut this showing with affidavits or other relevant and admissible 

evidence. Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). 

Case 3:20-cv-05421-MCR-MAF Document 63 Filed 06/10/21 Page 4 of 17
Page 5 of 17

Case No: 3:20-CV-5421-LC-MAF

It is the non-moving party’s burden to come forward with evidence on 

each essential element of his claim sufficient to sustain a jury verdict. Earley 

v. Champion Int’l Corp., 907 F.2d 1077, 1080 (11th Cir. 1990). The nonmoving party cannot rely solely on his complaint and other initial pleadings 

to contest a motion for summary judgment supported by evidentiary material, 

but must respond with affidavits, depositions, or otherwise show there are 

material issues of fact which demand a trial. Fed. R. Civ. P. 56(e); Coleman 

v. Smith, 828 F.2d 714, 717 (11th Cir. 1987). The trial judge, at the summary 

judgment stage, does not weigh the evidence but rather determines whether 

there is a genuine issue for trial: “if the evidence is merely colorable, or is not 

significantly probative, summary judgment may be granted.” Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); Baldwin Cty., Ala. v. Purcell 

Corp., 971 F.2d 1557, 1563 (11th Cir. 1992). “A mere ‘scintilla’ of evidence 

supporting the opposing party’s position will not suffice; there must be 

enough of a showing that the jury could reasonably find for that party.” 

Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 

supra).

The Supreme Court has stressed:

[w]hen the moving party has carried its burden under rule 

56(c) its opponent must do more than simply show that 

there is some metaphysical doubt as to the material facts . 

. . Where the record taken as a whole could not lead a 

Case 3:20-cv-05421-MCR-MAF Document 63 Filed 06/10/21 Page 5 of 17
Page 6 of 17

Case No: 3:20-CV-5421-LC-MAF

rational trier of fact to find for the nonmoving party, there is 

no ‘genuine issue for trial.’

Matasushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 

(1986) (footnote omitted). “[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, 477 U.S. at 247-48. Finally, “[w]hen 

opposing parties tell two different stories, one of which is blatantly 

contradicted by the record, so that no reasonable jury could believe it, a court 

should not adopt that version of the facts for purposes of ruling on a motion 

for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

III. Defendant’s Motion for Summary Judgment, ECF No. 51.

Carter argues he is entitled to summary judgment because “Plaintiff’s 

claim stands discredited.” ECF No. 51, p. 8. In support, Carter provides the 

incident report by Lieutenant Shawn Norris dated July 1, 2018 (ECF No. 51-

3); Plaintiff’s “Alleged Sexual Battery Protocol” form, a health record, dated 

July 1, 2018 (ECF No. 51-5); the MINS Incident Report dated July 2, 2018 

(ECF No. 51-4); and Inspector Gustafson’s 2019 OIG “Investigative Activity 

Case 3:20-cv-05421-MCR-MAF Document 63 Filed 06/10/21 Page 6 of 17
Page 7 of 17

Case No: 3:20-CV-5421-LC-MAF

Report.” (ECF No. 51-2). 1 Carter also provides a sworn declaration denying 

Plaintiff’s allegations. ECF No. 51-1.

Carter believes summary judgment is warranted because Plaintiff’s 

allegation in his complaint is contradicted by some records. See ECF No. 51 

generally. Carter emphasizes that Plaintiff alleged in his complaint that 

penetration occurred with “multiple fingers,” which is contradictory to 

Woullard’s sworn statement to Inspector Gustafson alleging that Carter used

a “gloved finger” to sexually assault him. ECF No. 51, pp. 8-9. Carter admits 

that other exhibits document that allege Carter used multiple fingers during 

the assault; however, because those are statements are not sworn, Carter 

suggests they are less credible. Id. According to Carter, these discrepancies 

are enough to disregard Plaintiff’s allegations as presented in the complaint 

and to grant summary judgment in Carter’s favor. Carter relies on Sconiers 

v. Lockhart, 946 F.3d 1256 (11th Cir. 2020).

As stated previously, Woullard did not file a response to Carter’s 

motion for summary judgment. Nonetheless, Woullard’s failure to respond to 

a motion for summary judgment does not inevitably result in summary 

1 There is no apparent date on the OIG report; and the report is unsigned. The Court 

refers to the document as the 2019 Report because the report makes clear that Inspector 

Gustafson conducted a medical records review and a review of the Roster Management 

System on July 29, 2019, and notified Woullard of the OIG findings on August 13, 2019. 

ECF No. 51-2, p. 2. Sergeant Carter resigned from the Florida Department of Corrections 

on July 13, 2019. Id.

Case 3:20-cv-05421-MCR-MAF Document 63 Filed 06/10/21 Page 7 of 17
Page 8 of 17

Case No: 3:20-CV-5421-LC-MAF

judgment by default. See Trustees of Cent. Pension Fund of Int’l Union of 

Operating Engineers & Participating Employers v. Wolf Crane Serv., Inc., 

374 F.3d 1035, 1039-40 (11th Cir. 2004) (“summary judgment cannot be 

granted as a sanction for merely failing to file a response to a motion for 

summary judgment”). Instead, the court “must consider the merits of the 

motion” under the usual summary judgment standard articulated in Fed. R. 

Civ. P. 56. Id. at 1039 (citing United States v. One Piece of Real Prop. 

Located at 5800 SW 74th Ave., 363 F.3d 1099, 1101 (11th Cir. 2004)).

IV. Discussion

Having fully considered Carter’s arguments, the Court is mindful that 

at the summary judgment stage, it is not tasked with fact finding; that is a 

matter reserved for a trial. See Sconiers, 946 F.3d at 1263. The Court is 

required to accept as fact all of Plaintiff’s allegations if they are sufficiently 

supported by evidence on the record and is not at liberty to weigh the 

evidence. See Anderson, 477 U.S. at 521. A court cannot grant summary

judgment if “the only issue is one of credibility,” because the issue is factual. 

Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742-43 (11th Cir. 1996).

The Court is required to “view all evidence and make all reasonable 

inferences in favor of” the non-moving party.” Allen v. Bd. of Pub. Educ. for 

Bibb Cty., 495 F.3d 1306, 1315 (11th Cir. 2007) (citations and quotation 

Case 3:20-cv-05421-MCR-MAF Document 63 Filed 06/10/21 Page 8 of 17
Page 9 of 17

Case No: 3:20-CV-5421-LC-MAF

marks omitted). “If a reasonable fact finder evaluating the evidence could 

draw more than one inference from the facts, and if that inference introduces 

a genuine issue of material fact, then the court should not grant summary 

judgment.” Id. "Credibility determinations, the weighing of the evidence, and 

the drawing of legitimate inferences from the facts are jury functions, not 

those of a judge, whether he is ruling on a motion for summary judgment or 

for a directed verdict." See Anderson, 477 U.S. at 255.

A. Woullard’s Eighth Amendment Claims Should Proceed.

The Eighth Amendment explicitly prohibits the imposition of cruel and 

unusual punishment. It is well-settled that prison officials violate the Eighth 

Amendment through “the unnecessary and wanton infliction of pain.” Farmer 

v. Brennan, 511 U.S. 825, 835 (1994). The Eleventh Circuit recognizes that 

“severe or repetitive sexual abuse” by prison officials can violate the Eighth 

Amendment. Boxer X v. Harris, 437 F.3d 1107, 1111 (11th Cir. 2006). More 

specifically, “[a] guard who sadistically and maliciously forces his finger into 

an inmate’s anus . . . plainly commits ‘severe . . . sexual abuse of a prisoner’

and violates the Eighth Amendment.” Sconiers, 946 F.3d at 1266 (citing 

Boxer X, 437 F.3d at 1111).

Ordinarily, “verbal taunts . . . however distressing” do not violate the 

Eighth Amendment. Edwards v. Gilbert, 867 F.2d 1271, 1274 n.1 (11th Cir. 

Case 3:20-cv-05421-MCR-MAF Document 63 Filed 06/10/21 Page 9 of 17
Page 10 of 17

Case No: 3:20-CV-5421-LC-MAF

1989). Nonetheless, the Eleventh Circuit recently acknowledged in an 

unpublished opinion:

some other circuits have at least held out the possibility that 

verbal threats, under certain circumstances, may be 

sufficient to state a constitutional claim. See Chandler v. 

D.C. Dep’t of Corr., 145 F.3d 1355, 1360-61 (D.C. Cir. 

1998) (“Although a verbal threat standing alone is generally 

inadequate to state a constitutional claim, such a threat 

could violate the Eighth Amendment if the resulting harm 

were sufficiently severe.”); cf. Freitas v. Ault, 109 F.3d 

1335, 1338 (8th Cir. 1997) (stating that “sexual harassment 

or abuse of an inmate by a corrections officer . . . may well 

result in severe physical and psychological harm,” which 

may “constitute the unnecessary and wanton infliction of 

pain forbidden by the Eighth Amendment” (citations and 

quotation marks omitted)).

In re Watkins Litig., 829 F. App’x 428, 431 (11th Cir. 2020). Woullard alleged 

that Carter verbally taunted him at least twice prior to committing the sexual

assault. ECF No. 1. The Court reviewed Carter’s exhibits, particularly the 

various prison reports documenting the incident, which are described below 

in apparent chronological order.

Two reports are dated July 1, 2018. First, Nurse Bray completed an 

“Alleged Sexual Battery Protocol” form documenting the assault and 

Woullard’s “rectum pain.” ECF No. 51-5, p. 1. The report indicates Woullard 

alleged that a “staff” member sexually assaulted him when the “officer stuck 

[his] finger up [Woullard’s] rectum.” Id. Second, Lieutenant Norris completed 

an incident report documenting the assault. ECF No. 51-3. Norris’ report 

Case 3:20-cv-05421-MCR-MAF Document 63 Filed 06/10/21 Page 10 of 17
Page 11 of 17

Case No: 3:20-CV-5421-LC-MAF

purports that Woullard submitted a written statement to Norris alleging that

Carter “sexually assaulted him by placing [multiple] fingers in his rectum.” Id., 

p. 1. According to the report, Norris interviewed Woullard who described the

incident as “physical and involv[ing] penetration.” Id. Norris’ report also

references Nurse Bray’s examination but only that Nurse Bray noted there 

were no injuries. Id. One issue is concerning about Norris’ report. It states 

that Woullard’s “DC6-112c statement is attached”; however, that statement 

is apparently missing from the exhibit as submitted by Carter. ECF No. 51-

3, p. 1.

On July 2, 2018, Amy Paulk prepared a MINS Incident Report. ECF 

No. 51-4. The report states that Norris reported he received a witness 

statement from Woullard alleging that “Carter had sexually assaulted him by 

placing fingers in his rectum” and that Woullard was interviewed and stated 

“this incident was physical and involved penetration.” Id.

In 2019, Inspector Gustafson issued an OIG “Investigative Activity 

Report.” ECF No. 51-2, p. 1. The OIG report reflects inconsistencies. For 

example, Norris “indicated” to OIG that “Carter penetrated [Woullard’s] anus 

with his (Sergeant Carter’s) finger.” Id., p. 1. It is unknown why Norris would 

report to the OIG a distinct set of facts from those listed in his own report, 

specifically, whether Carter used one or multiple fingers to assault Woullard. 

Case 3:20-cv-05421-MCR-MAF Document 63 Filed 06/10/21 Page 11 of 17
Page 12 of 17

Case No: 3:20-CV-5421-LC-MAF

Gustafson’s report includes an interview with Woullard accusing Carter of 

“insert[ing] a finger” and then “a gloved finger” during the sexual assault. Id., 

pp. 1-2. The OIG report also indicates that the complaint review was 

upgraded to a criminal investigation on August 13, 2019, the same day 

Woullard was notified of the findings resulting from the OIG investigation. Id. 

However, at this stage, no exhibits from the criminal investigation have been 

provided to the Court to consider. Id.

Although Gustafson’s and Nurse Bray’s reports suggest that Carter 

used one finger during the alleged assault, the Norris’ incident report (ECF 

No. 51-3) and the MINS Incident Report (ECF No. 51-4) are identical to 

Woullard’s operative complaint. Plaintiff’s initial written statement to Norris, 

which was supposedly attached Norris’ report, is missing. In his sworn 

declaration, Carter outright denies that the assault occurred. ECF No. 51-1. 

Still, Carter maintains that the variations in the reports of whether one or 

more fingers were used to assault Woullard is sufficient to support the motion 

for summary judgment. Not so. At this stage, the Court cannot pick and 

choose between these official reports because it is tantamount to making a 

factual- and credibility determination, which should be reserved for trial.

Carter’s motion for summary judgment should be denied because he 

fails to demonstrate the nonexistence of any genuine issue of material fact. 

Case 3:20-cv-05421-MCR-MAF Document 63 Filed 06/10/21 Page 12 of 17
Page 13 of 17

Case No: 3:20-CV-5421-LC-MAF

If Woullard can prove to a reasonable jury’s satisfaction that Carter 

sadistically and maliciously digitally penetrated Woullard’s anus, whether 

with one or multiple fingers, then Carter’s actions violate the Eighth 

Amendment because this act constitutes severe sexual abuse of a prisoner.

It is for the fact finder to determine the weight which should be given to any, 

all, or none of the official reports and other evidence. Plaintiff’s allegations of 

sexual harassment and sexual abuse are sufficiently supported by evidence 

on the record. Because there are genuine issues of material fact, the motion 

for summary judgment should be DENIED.

B. Woullard’s Claim for Mental and Emotional Damages Should Proceed.

Carter argues that Woullard has failed to show a physical injury that is 

more than de minimis; therefore, his damage recovery should be limited to 

nominal damages. ECF No. 51, pp. 11-12. This is incorrect. In Sconiers, 946 

F.3d at 1259, the Eleventh Circuit emphasized that physical injuries are not 

required when a plaintiff is seeking damages resulting from a sexual act:

Sexual abuse ‘has no legitimate penological purpose, and 

is simply not part of the penalty that criminal offenders pay 

for their offenses against society.’ Graham v. Sheriff of 

Logan Cty., 741 F.3d 1118, 1122-23 (10th Cir. 2013) 

(citation and quotation marks omitted). Nor does it comport 

with contemporary standards of decency. Congress itself 

implicitly recognized as much in 2013, when it amended 

the Prison Litigation Reform Act (‘PLRA’) to allow prisoners 

to recover damages ‘for mental or emotional injury suffered 

while in custody[,] without a prior showing of physical 

Case 3:20-cv-05421-MCR-MAF Document 63 Filed 06/10/21 Page 13 of 17
Page 14 of 17

Case No: 3:20-CV-5421-LC-MAF

injury,’ when the prisoner can demonstrate ‘the 

commission of a sexual act’ as the basis for the damages 

he seeks. See 42 U.S.C. § 1997e(e) (2013).

Accordingly, Woullard’s claims for mental and emotional damages, in 

addition to compensatory damages, should PROCEED against Carter.

C. The State Tort Claims Should Proceed.

The Eleventh Circuit outlined the state tort claims of assault and battery 

as occurring within the context of a Section 1983 action:

In Florida, an assault is ‘an intentional, unlawful offer of 

corporal injury to another by force, or exertion of force 

directed toward another under such circumstances as to 

create a reasonable fear of imminent peril.’ Sullivan v. Atl. 

Fed. Sav. & Loan Ass’n, 454 So. 2d 52, 54 (Fla. 4th DCA 

1984). A battery is ‘the infliction of a harmful or offensive 

contact upon another with the intent to cause such contact 

or the apprehension that such contact is imminent.’ Quilling 

v. Price, 894 So. 2d 1061, 1063 (Fla. 5th DCA 2005). To 

determine whether an officer’s actions are an assault and 

battery, courts inquire whether the officer’s use of force 

was reasonable. City of Miami v. Sanders, 672 So. 2d 46,

47 (Fla. 3d DCA 1996) (applying the reasonableness

standard to battery); City of Fort Pierce v. Cooper, 190 So. 

2d 12, 14 (Fla. 4th DCA 1966) (applying the 

reasonableness standard to assault).

Pena v. Marcus, 715 F. App’x 981, 988 (11th Cir. 2017). Only where a 

plaintiff’s allegations are sufficient to state a claim under § 1983 for excessive 

force are they are also sufficient to state the parallel claim of battery under 

Florida law. Detris v. Coats, 523 F. App’x 612 (11th Cir. 2013) (citing City of 

Miami v. Sanders, 672 So. 2d at 47 (holding in analogous context that “[i]f 

Case 3:20-cv-05421-MCR-MAF Document 63 Filed 06/10/21 Page 14 of 17
Page 15 of 17

Case No: 3:20-CV-5421-LC-MAF

excessive force is used in an arrest, the ordinarily protected use of force by 

a police officer is transformed into a battery”)).

Similarly, sexual assault amounts to tortious conduct in Florida. Malicki 

v. Doe, 814 So. 2d 347 (Fla. 1st DCA 1997). “Florida law equates sexual 

battery with an intentional tort.” Doe v. Celebrity Cruises, Inc., 394 F.3d 891 

(11th Cir. 2004) (citations omitted). As narrated above, Carter’s actions, as 

alleged by Woullard are unreasonable and sufficiently present an Eighth 

Amendment claim under § 1983. Therefore, it follows that Woullard’s state 

claims of sexual assault and battery against Carter should PROCEED.

D. The Request for Criminal Prosecution Should Be Dismissed.

Woullard seeks a criminal prosecution against Carter for the alleged

sexual assault. Nonetheless, the Florida statutes which criminalize the 

alleged acts are designed for the protection of the public; and no language 

indicates the statutes create a private right of action. Woullard’s reliance on 

Florida’s criminal statutes to create a private right of action is misplaced. See

Linda R.S. v. Richard C., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks 

a judicially cognizable interest in the prosecution or nonprosecution of 

another.”); see also Love v. Delta Air Lines, 310 F.3d 1347, 1352-53 (11th 

Cir. 2002) (stating “[c]riminal statutes generally do not provide a private 

cause of action”). More importantly, the decision to prosecute generally rests 

Case 3:20-cv-05421-MCR-MAF Document 63 Filed 06/10/21 Page 15 of 17
Page 16 of 17

Case No: 3:20-CV-5421-LC-MAF

entirely in the prosecutor’s discretion. Bordenkircher v. Hayes, 434 U.S. 357, 

364 (1978). For these reasons, Woullard’s request for criminal prosecution

should be DISMISSED for lack of standing.

V. Conclusion and Recommendation

For the reasons stated above, it is respectfully RECOMMENDED that:

1. The claims against Defendant Carter for sexual 

harassment and severe sexual abuse in violation of the 

Eighth Amendment PROCEED;

2. The claim for mental and emotional damages 

PROCEED;

3. The state tort claims for sexual assault and battery 

PROCEED;

4. The request for criminal prosecution be DISMISSED for 

lack of standing.

5. The case be remanded to the Undersigned for further 

proceedings.

IN CHAMBERS at Tallahassee, Florida, on June 10, 2021.

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 

Case 3:20-cv-05421-MCR-MAF Document 63 Filed 06/10/21 Page 16 of 17
Page 17 of 17

Case No: 3:20-CV-5421-LC-MAF

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(b)(1)(C).

Case 3:20-cv-05421-MCR-MAF Document 63 Filed 06/10/21 Page 17 of 17