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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

CHRISTOPHER C. CARTER,

Plaintiff,

vs. Case No. 4:10cv34-SPM/WCS

SANDRA HUGHES, 

and MR. LEE,

Defendants.

 /

REPORT AND RECOMMENDATION

The pro se Plaintiff filed a second amended civil rights complaint, doc. 20, on

May 14, 2010. Service was directed, doc. 25, and Defendant Hughes filed an answer,

doc. 23, a motion for summary judgment, doc. 24, and then filed an amended answer,

docs. 30, 34. The amended answer was filed as document 31.1 Plaintiff was provided a

discovery period, doc. 27, and he filed his response in opposition to summary judgment,

doc. 35, on September 2, 2010. This report and recommendation concerns only the

summary judgment motion filed by Defendant Hughes.

1

 Service has just recently been carried out as to Defendant Lee, doc. 39, and a

notice of appearance has been filed, doc. 40,, on December 2, 2010. 
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Plaintiff alleged in the amended complaint, doc. 20, that on June 28, 2008,

Defendant Hughes struck Plaintiff numerous times in the face with her radio. Plaintiff

alleged the incident was unprovoked and occurred in the laundry room of A-dormitory. 

Plaintiff alleged that he has suffered permanent disfigurement by the use of force, which

violated his Eighth and Fourteenth Amendment rights.

Legal standards governing a motion for summary judgment

On a motion for summary judgment the Defendant initially has the burden to

demonstrate an absence of evidence to support the nonmoving party's case. Celotex

Corporation v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2553-54, 91 L. Ed. 2d

265 (1986). If accomplished, the burden shifts to Plaintiff to come forward with

evidentiary material demonstrating a genuine issue of material fact for trial. Id. 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). 

Plaintiff must show more than the existence of a "metaphysical doubt" regarding the

material facts, Matsushita Electric Industrial Co., LTD. v. Zenith Radio Corporation, 475

U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986), and a "scintilla" of

evidence is insufficient. 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). All reasonable inferences must be resolved in the light most favorable to the

nonmoving party, Watkins v. Ford Motor Co., 190 F.3d 1213, 1216 (11th Cir. 1999), if

there is a genuine dispute as to those facts. Scott v. Harris, 550 U.S. 372, 380, 127

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S.Ct. 1769, 167 L.Ed.2d 686 (2007), cited in Ricci v. DeStefano, 129 S.Ct. 2658, 2677

(2009). "Where the record taken as a whole could not lead a rational trier of fact to find

for the nonmoving party, there is no genuine issue for trial." Matsushita Elec. Industrial

Co., 475 U.S. at 587 (internal quotation marks omitted), quoted in Ricci v. DeStefano,

129 S.Ct. at 2677. 

"Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings and by

her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on

file,' designate 'specific facts showing that there is a genuine issue for trial.' " Owen v.

Wille, 117 F.3d 1235, 1236 (11th Cir. 1997), cert. denied 522 U.S. 1126 (1998), quoting

Celotex, 477 U.S. at 324, 106 S. Ct. at 2553 (quoting Fed. R. Civ. P. 56(c), (e)). The

nonmoving party need not produce evidence in a form that would be admissible as Rule

56(e) permits opposition to a summary judgment motion by any of the kinds of

evidentiary materials listed in Rule 56(c). Owen v. Wille, 117 F.3d at 1236; Celotex, 477

U.S. at 324, 106 S. Ct. at 2553.

The relevant Rule 56(e) evidence

Defendant Hughes is a Correctional Officer employed at Taylor Correctional

Institution, a prison facility within the Florida Department of Corrections. Doc. 24, ex. F

(Hughes affidavit). At the time of the incident alleged, Plaintiff was incarcerated at

Taylor C.I., having just arrived on June 26, 2008. Doc. 24, ex. A (doc. 24-1, p. 4).2

 

On June 27, 2008, the day before the incident alleged by Plaintiff in the amended

complaint, Defendant Hughes wrote Plaintiff a disciplinary report for lewd and lascivious

2

 The citation in parenthesis provides a pin-point citation to the document on the

court's electronic docket.

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exhibition and Plaintiff was placed in administrative confinement pending resolution of

the disciplinary report. Doc. 24, ex. B (doc. 24-1, p. 5).3 On the following day, June

28th, Defendant Hughes was assigned as A-dormitory Housing Officer in the Main Unit

of Taylor C.I. Doc. 24, ex. C (doc. 24-1, p. 7). The Daily Security Roster indicates that

"Confinement Population" was not located in "Dorm A." Id. Defendant has provided

evidence that Plaintiff was not housed in A-dormitory on June 28, 2008, because he had

been taken to administrative confinement on June 27, 2010. Doc. 24, Ex. E (doc. 24-1,

pp. 12-13). Defendant Hughes avers that she has "never, at any time or place, been

involved in a physical altercation with" Plaintiff and never struck Plaintiff at any time. 

Doc. 24, Ex. F (doc. 24-1, pp. 14-15). 

Defendant notes that despite the fact that Plaintiff now alleges that the incident

having occurred in June, Plaintiff did not report the alleged abuse until November 24,

2008, when Plaintiff filed an informal grievance and he did not even allege the date

upon which this occurred in the grievance. Doc. 24, Ex. G (doc. 24-1, pp. 16-17). 

Thereafter, an Incident Report for alleged abuse was prepared on December 1, 2008,

Id. (doc. 24-1, p. 16), and an Inspector General's Investigation was conducted. Doc. 24,

Ex. H (doc. 24-1, p. 18). In the course of that investigation, Plaintiff made the following

assertion:

I was lying on my bunk and I touched myself and the female officer thought I was

gunning her but I wasn't. Once getting off my bunk she began to hit me in the

face with the radio and then a Sgt. held my arms and I was struck again with the

radio.

3

 The disciplinary report asserted that while Defendant Hughes as assigned as Adormitory housing officer, she observed Plaintiff "laying on his bunk, in plain view of the

officer's station, with his exposed penis in his hand, staring directly at" the Defendant

while she was in the Officer's Station. Doc. 24-1, p. 5. 

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Doc. 24, Ex. I (doc. 24-1, p. 19). Apparently Plaintiff then told the investigator that the

assault had occurred about six months earlier. Id. (doc. 24-1, p. 18). The investigation

revealed no injury to Plaintiff. Id. (doc. 24-1, p. 20).

Plaintiff's statement of facts, submitted in opposition to Defendant Hughes'

summary judgment motion, is accepted as sworn testimony. Doc. 35. Plaintiff states

that he will testify to every statement made and states the "facts are personally known

by [him] to be true and correct." Doc. 35, p. 4. Plaintiff states he arrived at Taylor

Correctional Institution in June, 2008, as a "minimum custody" inmate and was housed

in A-Dormitory. Doc. 35, p. 2. Plaintiff states that on his "first day of arrival" at Taylor

C.I., he was housed in A-Dormitory. Id. The housing officer was Defendant Hughes,

and Plaintiff states that he used the bathroom, and on his way back to his assigned

bunk, he "was stopped by" Defendant Hughes. Id. "A verbal confrontation ensued after

which [Plaintiff] was ordered to the A-Dormitory laundry room." Id. Plaintiff says that as

soon as he "entered through the door [he] was immediately struck numerous times in

the face with her radio." Id. Plaintiff states that "[a] Sergeant Lee responding to her call

entered through the rear door of A-Dormitory laundry room." Id. Sergeant Lee then

grabbed Plaintiff and lifted him off the floor by his neck. Id.4

 

Plaintiff has provided an affidavit by inmate Eduardo Rodriguez who states that

he has "witnessed severe physical abuse of inmates [at] Taylor Correctional Institution." 

Doc. 35, Plaintiff's Appendix 2 (Doc. 35-1, p. 5). He states the "abuse was performed

4

 The remainder of Plaintiff's statement of facts have nothing to do with the

allegations of the complaint, nor do they concern Defendant Hughes. Doc. 35, pp. 2-5

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by Correctional Officers currently employed at Taylor Correctional Institution." Id. An

identical affidavit was provided by inmate Tony Lewis Harris. Id. (Doc. 35-1, p. 6).

Plaintiff also provided a second "statement of material facts" in which he reasserts what was provided within his response. Doc. 35-2, p. 1. In this second

statement, which he also swears is "true and correct," Plaintiff states that he was

"severely beaten by two Correctional Officers" who Plaintiff identifies as Defendant

Hughes and Sergeant Lee. Doc. 35-2, p. 1. Plaintiff states the "incident took place in

the laundry room of A-dormitory between the hours of 2 PM and 4 PM." Id. Plaintiff

denies that he was "gunning" at Defendant Hughes as she alleged in the disciplinary

report. Id. Plaintiff states that in his "over 15 years of incarceration [he has] never

indulged in [that] behavior." Id. Plaintiff states that Defendant Hughes' "entire summary

judgment is falsified and untrue." Id. Plaintiff asserts that he was threatened with more

abuse if he spoke about what happened, and was placed in confinement to silence him

from coming forward with the information. Id. 

Analysis

A claim that excessive and unnecessary force was used by correctional officers

is founded upon the Eighth Amendment and requires a showing of "unnecessary and

wanton infliction of pain." Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084,

89 L.Ed.2d 251 (1986). Relevant to the inquiry will be "the need for the application of

force, the relationship between the need and the amount of force that was used, [and]

the extent of injury inflicted." Id. at 320; see e.g., Williams v. Burton, 943 F.2d 1572,

1575 (11th Cir. 1991); Ruble v. King, 911 F.Supp. 1544, 1554 (N.D. Ga. 1995). 

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Furthermore, while the absence of serious injury is relevant to an excessive force

claim, that does not end the inquiry. Baldwin v. Stalder, 137 F.3d 836, 839 (5th Cir.

1998), citing Hudson v. McMillian, 503 U.S. 1, 7, 112 S. Ct. 995, 999, 117 L. Ed. 2d 156

(1992). In Hudson v. McMillian, the Court stated that "the Eighth Amendment's

prohibition of cruel and unusual punishment 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.' " Siglar v. Hightower, 112 F.3d 191, 193-94 (5th Cir.

1997), quoting Hudson, 503 U.S. at 10, 112 S. Ct. at 1000 (considering the "physical

injury" requirement of the PLRA). "[T]he injury must be more than de minimus, but need

not be significant." Siglar, 112 F.3d at 193. 

Thus, an absence of serious injury to an inmate is only one part of the inquiry. 

503 U.S. at 7, 112 S. Ct. at 999; see also Harris v. Chapman, 97 F.3d 499, 505 (11th

Cir. 1996), cert. denied 520 U.S. 1257 (1997). If prison officials did not use force "in a

good-faith effort to maintain or restore discipline," but did so "maliciously and sadistically

to cause harm" see Hudson, 503 U.S. at 7, 112 S.Ct. at 999, an inmate presents a

viable claim. 

Defendant Hughes has provided evidence that on the date alleged by Plaintiff,

Plaintiff could not have been where he said the incident occurred. The evidence shows

that on June 27th, Plaintiff was placed in administrative confinement. The evidence

reveals that Plaintiff was not in A-dormitory on June 28th when he alleged the assault

took place. To create a genuine dispute of material fact, Plaintiff must show that he was

with the Defendant on that date. Alternatively, Plaintiff must show that the assault

occurred on another date, and must explain why he alleged that it occurred on June

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28th. When confronted with such a direct contradiction of his material allegations,

Plaintiff cannot sit idly by and fail to come forward with proof.5

Accordingly, it is RECOMMENDED the summary judgment motion filed by

Defendant Hughes, doc. 24, be GRANTED in favor of Hughes, that judgment not yet

been entered, and that this case be REMANDED for further proceedings concerning

Plaintiff's claim against Defendant Lee.

IN CHAMBERS at Tallahassee, Florida, on December 7, 2010.

 s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14 days

after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.

5

 While not dispositive, it has not gone unnoticed that Plaintiff has been

inconsistent with other material allegations. The complaint alleges that on June 28,

2008, Defendant Hughes struck Plaintiff numerous times in the face with her radio, that

the attack was unprovoked, and that the attack occurred in the laundry room of Adormitory. During the Inspector General's investigation, it is reported that Plaintiff said

that while Plaintiff was lying on his bunk touching his penis, the Defendant mistakenly

believed Plaintiff was "gunning" her and then, after Plaintiff got off his "bunk she began

to hit [him] in the face with the radio and then a Sgt. held [his] arms and [Plaintiff] was

struck again with the radio." Doc. 24-1, p. 19.

Case No. 4:10cv34-SPM/WCS