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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

KENNETH ODOM,

Plaintiff,

v. Case No: 3:09cv570/MCR/CJK

FLORIDA DEPARTMENT OF

CORRECTIONS, et al.,

Defendants.

_________________________/

ORDER and

REPORT AND RECOMMENDATION

This case filed under 42 U.S.C. § 1983 and the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12132, is before the court upon defendants’ motion for

summary judgment (doc. 106) and evidentiary materials (doc. 108). Plaintiff has not

responded to the motion. The matter is referred to the undersigned magistrate judge 1

for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R.

72.2(C). Having fully considered the pleadings, arguments, applicable law and

1On February 14, 2014, the court invited plaintiff to respond to the motion for summary judgment

and advised the parties that defendants’ motion and plaintiff’s response (if any) would be taken

under advisement on March 17, 2014. (Doc. 109). Plaintiff sought (doc. 110) and was granted (doc.

111) a 20-day extension in which to respond to defendants’ motion. Over 90 days beyond plaintiff’s

new deadline have passed, and plaintiff has neither responded to the motion nor sought an additional

extension. 

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evidence of record, the undersigned recommends that defendant’s motion for

summary judgment be granted.

BACKGROUND AND PROCEDURAL HISTORY

Background

The events giving rise to plaintiff’s fifth amended complaint occurred from

July 2007 through January 2008 at Santa Rosa Correctional Institution (“Santa Rosa

CI”). (Doc. 61). Plaintiff sues the DOC under the ADA for the denial of

participation in the outdoor exercise program for inmates held in close management

confinement and raises questionsregarding the reasonableness ofthe accommodation

provided. In addition, plaintiff sues Captain “Swartz” (hereinafter “Schwarz”) and

2

Sergeant Ellis in their individual capacities under 42 U.S.C. § 1983, for their alleged

retaliation against plaintifffor filing grievances, in violation ofthe First Amendment. 

As relief, plaintiffseeks injunctive relief, compensatory and punitive damages, costs,

and any other relief the court deems just and proper. (Doc. 61).

Procedural History

Plaintiff initiated this action on December 24, 2009, while in the custody of the

Florida Department of Corrections (“DOC”) confined at Hamilton Correctional

Institution. (Doc. 1). On December 16, 2010, plaintiff filed a third amended

complaint naming eight defendants (Martie Taylohr, Pilar Tourney, J.J. Taylor, W.D.

Rummel, M. Nichols, John Doe, Captain Schwarz and Jennifer Haas), each sued in

his or her individual and official capacities. (Doc. 35, pp. 1-2). The complaint

asserted three claims/counts. Count I asserted a claim of disability discrimination

2Plaintiff’s fifth amended complaint identifies this defendant as Captain “Swartz.” Defendants have

clarified that this defendant’s name is Captain John Schwarz. 

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under the ADA against all defendants. (Id., pp. 19-20). Count II asserted a claim of

medical deliberate indifference under the Eighth Amendment against defendantsDoe,

J.J. Taylor, Rummel and Nichols. (Id., pp. 20-21). Count III asserted a claim of

retaliation under the First Amendment and the ADA against defendant Schwarz. (Id.,

pp. 21-22). On October 27, 2011, the undersigned recommended that the complaint

be dismissed prior to service for failure to state a claim upon which relief may be

granted. (Doc. 40). On July 7, 2012, the District Judge adopted in part and rejected

in part the recommendation. (Doc. 51). The District Judge’s order provided as

follows:

a. The Recommendation is reversed as to Count I insofar as the

plaintiff states a claim of disability discrimination in violation of the

Americans with Disabilities Act (“ADA”) against the Department of

Corrections for the denial of participation in the outdoor exercise

program for inmates held in close management confinement and raises

questions regarding the reasonableness ofthe accommodation provided.

b. The Recommendation isreversed asto the retaliation claimset 

forth in Count III.

c. In all other respects, the Recommendation is adopted and

incorporated herein by reference.

2. Thus, Count II and any claims against individual officers in

Count I are DISMISSED WITH PREJUDICE under 28 U.S.C. §

1915(e)(2)(B)(ii) for the plaintiff’s failure to state a claim upon which

relief may be granted.

(Doc. 51, p. 3). The District Judge remanded the case to the undersigned for further

proceedings.

On July 10, 2012, the undersigned issued an order directing plaintiff to file an

amended complaint limiting his claims to those that survived dismissal. (Doc. 52). 

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The July 10, 2012 order specified the claims (and defendants) upon which plaintiff

was allowed to proceed, and admonished plaintiff that his amended complaint

“should be limited to the claims subject to the [District Judge’s] remand.” (Doc. 52,

p. 2). In response, plaintiff filed a fourth amended complaint, but declined to comply

withe the July 10, 2012 order. The court disapproved plaintiff’s fourth amended

3

complaint and gave plaintiff another opportunity to comply with the court’s order. 

(Doc. 60). 

On November 29, 2013, plaintiff filed a fifth amended complaint, setting out

the claims now before the court. (Doc. 61). Although plaintiff’s fifth amended

complaint continues to name all eight of the original defendants (including five

against whom all claims had been dismissed), the court accepted the complaint with

the provision that plaintiff’s naming of Martie Taylor, Peter Tourney, J.J. Taylor,

W.D. Rummel and M. Nichols as defendants would be disregarded and only three

defendants would be served (the Florida Department ofCorrections,Captain Schwarz

and Correctional Officer Ellis). (Doc. 62, p. 2). Defendants DOC, Schwarz and Ellis

were served and filed an answer. (Doc. 88). During the discovery period, plaintiff

was released from incarceration. (See Doc. 99, p. 2 ¶ 4). Defendants now move for

summary judgment on the following bases:

(1) Plaintiff lacks a case or controversy to seek the injunctive relief

requested in the Fifth Amended Complaint.

3Plaintiff’s proposed fourth amended complaint was not on the court form, continued to name as

defendants (and assert claims against) several individual officers who had been dismissed and were

no longer the subject of Count I(the ADA claim against the DOC) or Count III(the retaliation claim

against defendants Captain Schwarz and Officer Ellis), and contained essentially the same factual

allegations as the third amended complaint. (Doc. 59). 

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(2) Plaintiff cannot show an adequate physical injury to overcome the bar

on compensatory and punitive damages under 42 U.S.C. § 1997e(e).

(3) The alleged adverse actions of the DOC did not actually violate

plaintiff’s constitutionalrights; therefore, plaintiff cannot seek damages

against the DOC for its alleged violation of the ADA, because Title II

of the ADA only abrogates the State’s sovereign immunity for state

actions that actually violate a plaintiff’s constitutional rights.

(4) Plaintiff cannot show the defendants’ alleged actions violated Title II of

the ADA, because:

a. Plaintiff was not denied accessto outdoor exercise on the basis of

his disability; rather, plaintiff independently refused outdoor

exercise when offered.

b. Defendant Crews evaluated plaintiff for and offered plaintiff

reasonable accommodations so he could enjoy the benefits of the

programs and services offered by the DOC.

c. Plaintiff’s insistence on a single accommodation was

unreasonable and contradicts medical evaluation.

(5) Plaintiff failed to exhaust his administrative remedies regarding

defendants’ alleged retaliation on October 25, 2007.

(6) Plaintiff cannot show the defendants’ alleged retaliatory actions on

October 25, 2007, were in response to plaintiff’s filing medical

grievances, because:

a. Plaintiff cannot show the defendants knew of his constitutionallyprotected actions(filing medical grievances) when they allegedly

took adverse action against him.

b. Plaintiff’s placement in a handicap cell was contrary to medical

policy of the DOC.

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(Doc. 106). 

On February 14, 2014, the court ordered plaintiff to respond to the summary

judgment motion on or before March 17, 2014, and warned plaintiff that failure to do

so may result in the motion being granted and final judgment being entered in favor

of the defendants without a trial. (Doc. 109). Plaintiff has not responded to

defendant’s motion.

DISCUSSION

Summary Judgment Standard

A motion for summary judgment may be granted 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). The moving party bears the

initial burden of proof to set forth the basis for its motion, identifying facts as to

which there is no genuine dispute. See Celotex Corp. v. Catrett, 477 U.S. 317, 323,

106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The failure of the nonmoving party to

create a factual dispute does not itself authorize the entry of summary judgment; the

moving party must establish the absence of a material dispute of fact. See Dixie

Stevedores, Inc. v. Marinic Maritime, Ltd., 778 F.2d 670, 673 (11th Cir. 1985). 

When, however, the nonmoving party fails to properly address the moving party’s

assertion of a fact, the court may consider the fact undisputed and may grant summary

judgment if the motion and supporting materials show that the moving party is

entitled to it. Fed. R. Civ. P. 56(e)(2), (3); see also N.D. Fla. Loc. R. 56.1(A) (stating

that facts set forth in the moving party’s statement of undisputed material facts will

be deemed admitted unless controverted by the opposing party).

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Allegations of Plaintiff’s Fifth Amended Complaint

The allegations of plaintiff’s fifth amended complaint are summarized here for

the limited purpose of providing context to the “Undisputed Material Facts” set forth

below. The allegations of plaintiff’s fifth amended complaint cannot be considered

for purposes of determining whether a genuine dispute ofmaterialfact exists, because

plaintiff’s fifth amended complaint is neither sworn, verified, nor subscribed as true

under penalty of perjury. (See Doc. 61, p. 23). Compare Gordon v. Watson, 622 F.2d

120, 123 (5th Cir. 1980) (“Although pro se litigants are not held to the same standards

of compliance with formal or technical pleading rules applied to attorneys, we have

never allowed such litigants to oppose summary judgments by the use of unsworn

materials.”), and Piper v. United States, 392 F.2d 462, 464 (5th Cir. 1968) (holding 4

that denials in unverified pleading were insufficient to controvert affidavit offered in

support of motion for summary judgment); with Perry v. Thompson, 786 F.2d 1093,

1095 (11th Cir. 1986) (holding that specific facts pled in a sworn complaint and

repeated in a separate affidavit must be considered in opposition to summary

judgment); see also 28 U.S.C. § 1746 (providing an alternative to making a sworn

statement, but requiring that the statement include a handwritten subscription, signed

and dated, that the statement is true under penalty of perjury). Plaintiff has filed no

response whatsoever to defendants’ motion for summary judgment or statement of

undisputed material facts. 

Plaintiff’s allegations relating to his ADA claimare these. Plaintiff alleges that

when he arrived at Santa Rosa CI, his medically-prescribed walking cane and

4In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1098) (en banc), the Eleventh Circuit

adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close

of business on September 30, 1981.

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therapeutic Magnum boots were confiscated. (Doc. 61). Plaintiff was evaluated by

Marsha Nichols, an Advanced Registered Nurse Practitioner (“ARNP”). Plaintiff

alleges that ARNP Nichols’ prescription, which was not the return of his Magnum

boots and cane but rather a replacement pair of boots and no cane, was inadequate 5

medically and, because of the inadequacy of the replacement boots and lack of cane,

he was unable to participate in outdoor exercise from August 2007 through January

2008. Plaintiff submitted a reasonable accommodation request form (DC2-530)

requesting the return of the Magnum boots and walking cane. The form was denied

based on a review of plaintiff’s medical records. Plaintiff claims that this alleged

denial of an ADA accommodation (the Magnum boots and walking cane) resulted in

his not receiving the benefits of a state program based on his disability, and caused

himto suffer deterioration in his condition (right-sided semi-paralysis) and worsening

symptoms. (Doc. 61).

Plaintiff also claims defendants Schwarz and Ellis retaliated against him in

violation of the First Amendment when they moved him from a “handicap cell” to a

standard cell on October 25, 2007, and took (and/or destroyed) some of plaintiff’s

photographs in reprisal for his filing grievances concerning the Magnum boots and

cane. 

Undisputed Material Facts

The facts set forth in defendants’ statement of undisputed material facts (doc. 

106, pp. 6-9) have not been disputed, and will therefore be deemed admitted and

incorporated by reference herein. See Fed. R. Civ. P. 56(e); N.D. Fla. Loc. R. 56.1(A)

5Magnum boots are described by the manufacturer as, “Sold in 80 countries around the world. The

first choice for Law Enforcement, Ambulance, Fire and SecurityProfessionals. Lightweight Athletic

comfort, yet built like a battleship!” http://us.magnumboots.com/history.html.

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(“The party opposing a motion for summary judgment shall, in addition to other

papers or matters permitted by the rules, file and serve a separate, short and concise

statement of the material facts as to which it is contended that there exists a genuine

issue to be tried. . . . All material facts set forth in the statement required to be served

by the moving party will be deemed to be admitted unless controverted by the

statement required to be filed and served by the opposing party.”). Additionally, the

court finds that these undisputed facts are sufficiently supported by defendants’

evidentiary materials. (Doc. 108, Exs. A-I). The undisputed material facts are these.6

Plaintiff is no longer in the custody of the DOC, having fully completed his

sentence on October 30, 2013. (Doc. 99, p. 2 ¶4; Doc. 102). Plaintiff presently

resides in Mobile, Alabama. (Doc. 102; Doc. 110, p. 3). 

On July 27, 2007, while in the custody of the DOC, plaintiff was transferred

from Northwest Florida Reception Center, formerly known as Washington CI, to

Santa Rosa CI. (Doc. 108, Ex. A, Agerton Decl. at Ex. 2). Prior to being transferred,

plaintiff had been issued a pair of Magnum boots, style 7903, size 10.5 from Dr.

McClunney (a consultant in the Brace Clinic at the Reception and Medical Center)

for plaintiff’s right foot drop. (Doc. 108, Ex. B, Do Decl. at Comp. Ex. 1, pp. 28-29). 

Plaintiff was referred back to Dr. McClunney on May 25, 2007, at the request of the

Chief Health Officer at Washington CI, because plaintiff was “not happy with the

way the AFO and Magnum boots fit and demands new measurements and new design

to fit his needs.” (Id. at p. 44). The AFO is plaintiff’s leg brace. As a result, Dr.

McClunney changed plaintiff’s prescription on June 15, 2007, from Magnum boots

6Each factual statement contained in this Report and Recommendation is drawn from defendant’s

Statement of Facts (doc. 106) and supporting evidence (doc. 108), but cites only the evidentiary

material (doc. 108).

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to Spot Bilt Midtown boots size 10.5 E, and ordered this pair for plaintiff. (Id., p. 45). 

Prior to receiving the new pair of boots, plaintiff was transferred on July 27, 2007,

to Santa Rosa CI to be placed into close management. (Doc. 108, Ex. A at Ex. 2). 

According to the declaration of Albert Agerton, the Assistant Bureau Chief for

Security Operations, close management facilities have more stringent security

requirementsthan less-restrictive facilities. (Doc. 108, Ex. A, Agerton Decl. ¶ 4). As

a result of these more stringent security requirements, items, even health care

appliances, allowed at a prior facility may be disallowed upon placement in close

management supervision. (Id.). 

Upon arrival at Santa Rosa CI, plaintiff went through inmate intake where his

personal property wasinventoried. (Doc. 108, Ex. F). At thisinventory, an unknown

correctional officer confiscated plaintiff’s walking cane and Magnum boots and

marked the boots to be mailed home. (Id.). The confiscation of plaintiff’s boots and

cane was a result of the more stringent security requirements while in close

management, and the DOC policy that allows a clinician at the facility where an

inmate is housed to change or alter recommendations of a specialist to fit the facility’s

needs. (Doc. 108, Ex. A, Agerton Decl. ¶ 4).

Also upon plaintiff’s arrival at Santa Rosa CI, plaintiff’s medical records were

reviewed by a clinician, who instructed the ARNP at Santa Rosa CI to “address 

passes.” (Doc. 108, Ex. A, Agerton Decl. at Ex. 4;see also Doc. 108, Ex. B, Do Decl.

at Comp. Ex. 1, p. 82). Medical passes include such items as therapeutic boots and

a walking cane. (Doc. 108, Ex. A, Agerton Decl. ¶ 5). 

ARNP Nichols addressed plaintiff’s passes on August 7, 2007. (Doc. 108, Ex.

A, Agerton Decl. at Ex. 5; see also Doc. 108, Ex. B, Do Decl. at Comp. Ex. 1, pp. 76,

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86). During Nichols’ visit with plaintiff, Nichols observed and listened to plaintiff

concerning his boots and cane. (Doc. 108, Ex. A, Agerton Decl. at Ex. 5). Plaintiff

requested his Magnum boots back, not to wear with the AFO brace but to wear

without the brace, and informed Nichols that he was supposed to wear the boots

without the brace. (Id.). ARNP Nichols advised plaintiff that he was incorrect and

that he was to wear the AFO brace with a boot wide enough to support the brace. 

(Id.). Plaintiff also requested a handicap cell. (Id.). ARNP Nichols observed that

plaintiff was wearing flip flops and dragging his right foot, but wassteady on his feet. 

(Id.). ARNP Nichols issued plaintiff passes for a low bunk, low tier, right foot brace,

no work with plaintiff’s right hand, no prolonged standing, and size 101⁄2 EE boots

to accommodate his brace. (Id.). ARNP Nichols did not issue plaintiff a pass for a

walking cane. (Id.).

On August 10, 2007, RN Specialist Keith Gardner conducted an Impaired

Inmate Evaluation of plaintiff at Santa Rosa CI. (Doc. 108, Ex. B, Do Decl. at Comp.

Ex. 1, p. 87). Plaintiff informed Gardner that his boots were taken from him at

Washington CI and that he needed a handicap cell and a cane. (Id.). Gardner

observed: (1) plaintiff’s gait was steady with a noticeable limp on his right side, (2)

plaintiff dropped his right foot and (3) plaintiff had moderate difficulty sitting in a

chair but was able to manage. (Id. at p. 87). Plaintiff completed an Independent

Living Assessment in which he reported difficulty transferring to the toilet. (Id.). 

Plaintiff also reported that he had had an inmate assistant on the open compound but

was able to function adequately on his own now that he was in his own cell. (Id.). 

Gardner concluded that plaintiff “function[ed] independently with activities of daily

living,” and that he had been given passes appropriate for his condition. (Id., p. 87). 

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Based on Gardner’s observation and interview, Gardner “asked the dormSgt. to move

[plaintiff] into a handicap cell so that he would have an easier time getting [up and

down] from toilet.” (Id., p. 87). Gardner “[e]ncouraged inmate to take every

opportunity to use recreation time to maintain muscle tone.” (Id., p. 87). Plaintiff

was moved to a handicap cell. (Doc. 108, Ex. A, Agerton Decl. at Ex. 2). 

In September and October of 2007, plaintiff requested the return of his

Magnum boots and was told he could obtain the boots issued by ARNP Nichols by

contacting the laundry department. (Doc. 108, Ex. B, Do Decl. at Comp. Ex. 1, pp.

88, 98). During a sick call visit on September 24, 2007, plaintiff inquired about the

therapeutic boots Dr. McClunney had ordered. (Id., p. 97). Medical staff noted that

the boots ordered on June 15, 2007, had not been received. (Id.). On November 22,

2007, plaintiff received therapeutic boots (Dr. Comfort, size 101⁄2 4E), with a notation

on the receipt that the boots were issued by Dr. McClunney. (Id., p. 95). Plaintiff

received the Dr. Comfort boots from the medical department, put them on, walked

around the medicalsally port, stated that the boots fit well, and voiced no complaints. 

(Doc. 108, Ex. B, Do Decl. at Comp. Ex. 1, p. 101). 

Plaintiff’s Daily Record of Segregation forms for July 2007 through January

2008 (DC6-229A forms) show that plaintiff was offered, but refused participate in,

outdoor exercise. (Doc. 108, Ex. G). The DC6-229 forms track the status of each

inmate on close management and document everyday occurrences such as meals,

dayroomtime, work assignment and outdoor exercise periods. (Doc. 108, Ex. E, Ellis

Decl. ¶ 4 ;see also Doc. 108, Ex. I, pp. 13-14 (outlining what must be documented on

the DC6-229 form, including exercise periods)). One of the responsibilities of

correctional officers on close management duty is to fill out the DC6-229 forms. 

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(Id.). As a correctional officer gives an inmate certain things, or completes certain

requirements(e.g., providing a shower and shave), the officer notes that action on the

DC6-229 form and initials the notation. (Id). If an inmate refuses exercise or food,

it is documented on the DC6-229 form. (Id.). Plaintiff refused exercise both before

and after he received the therapeutic boots on November 22, 2007. (Doc. 108, Ex.

G).

Defendants have submitted a sworn declaration from Dr. Long Ngoc Do, MD

who has been licensed to practice Medicine and Surgery in the State of Florida since

1986. (Doc. 108, Ex. B, Do Decl.). Dr. Do has been employed with the DOC from

1987 to the present, and currently serves as Director of Medical Services of the DOC. 

(Doc. 108, Ex. B, Do Decl. ¶ 1). Dr. Do reviewed plaintiff’s medical records in

connection with plaintiff’s ADA accommodation claim regarding his cane and

therapeutic boots and the alleged retaliatory move from a handicap cell in October of

2007. (Id. ¶ 2). Dr. Do states his medical opinion that: (1) plaintiff did not qualify

under the DOC’s guidelinesfor a handicap cell and, therefore, his removal therefrom

was not of medical consequence; (2) although plaintiff was in need of therapeutic

boots that fit his brace, and possibly a cane, there is nothing to indicate that the pair

of boots ARNP Nichols authorized, or that those received by plaintiff on November

22, 2007, were inadequate medically; (3) plaintiff’s needs for special shoes and

orthotics were handled appropriately from a medical standpoint; and (4) plaintiff did

not incur any worsening, exacerbation, or deterioration of any of his medical

conditions during the times relevant to his complaint. (Id. ¶ 6). Moreover, the

undisputed evidence in the summary judgment record demonstrates that plaintiff did

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not suffer any physical injury or any increased pain, muscle atrophy, or foot drop,

during the time period at issue (July 2007 through January 2008). (Doc. 108, Ex. B). 

Plaintiff was moved from a handicap cell to a standard cell on October 25,

2007. (Doc. 108, Ex. A, Agerton Decl. at Ex. 2). Defendant Schwarz declares under

oath that at the time he ordered plaintiff to be moved from a handicap cell to a regular

cell, he had no knowledge of grievances plaintiff had filed concerning his therapeutic

boots and walking cane. (Doc. 108, Ex. D, Schwarz Decl. ¶ 3). Defendant Schwarz

further states that he did not verbally threaten plaintiff, did not retaliate against him

in any way, and did not instruct anyone to retaliate against plaintiff. (Id. ¶ 2). 

Defendant Ellis declares under oath that in 2007 he had no knowledge of the

grievances plaintiff had filed; that he became aware of the grievances only recently

after reviewing the allegations of plaintiff’s complaint; that he did not retaliate

against or harass plaintiff in any way; and that defendant Schwarz never instructed

Ellis to retaliate against or harass plaintiff. (Doc. 108, Ex. E, Ellis Decl. ¶¶ 2, 3). 

Plaintiff did not file grievances regarding the alleged retaliatory cell move. (Doc.

108, Ex. C). This concludes the factual record concerning plaintiff’s claims.

Legal Conclusions

A. Plaintiff’s Claims For Injunctive Relief Are Moot

Plaintiffseeks, among other relief, an injunction commanding the DOC to take

the following actions as a result of its alleged violation of the ADA:

(1) return the Magnum boots to plaintiff,

(2) establish a rule prohibiting the confiscation of a disabled inmate’s health

care aid upon the inmate’s arrival at a new facility,

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(3) establish a procedure requiring that all handicapped “new arrival

inmates” be seen by the receiving institution’s Impaired Coordinator

within seven days, 

(4) establish a rule prohibiting the housing of handicapped inmates on close

management when such housing would hinder the inmate’s access to

essential aids or would exclude the inmate from a service, program, or

activity,

(5) require mandatory training of close management officers “on the proper

restraintsto be used condusive [sic] to disability on out of cell, call-outs,

and transport,”

(6) equip outdoor exercise areas with “strengthening equipment for the

handicap as to maintain muscle tone due to inability to use dip and pullup bars,”

(7) establish a rule prohibiting medical personnel “from tak[ing] valid

medical passes of handicap inmate to suit institutional and/or close

management requirement” and

(8) implement a “no tolerance rule of accountability to deter present and

future non-medical personnel fromintentional [sic] depriving ofmedical

necessary aides for the handicap inmate.”

(Doc. 61, pp. 21-22). Defendants assert that plaintiff lacks an Article III case or

controversy to seek injunctive relief against the DOC, because plaintiff is no longer

in the DOC’s custody. (Doc. 106, pp. 11-12). 

“Article III ofthe Constitution limits the jurisdiction of the federal courtsto the

consideration of ‘Cases’ and ‘Controversies.’” Soliman v. U.S. ex rel. INS,, 296 F.3d

1237, 1242 (11th Cir. 2002) (quoting U.S. Const. art III, § 2). “The doctrine of

mootness derives directly fromthe case-or-controversy limitation, because ‘an action

that is moot cannot be characterized as an active case or controversy.’” Soliman at

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1242 (quoting Adler v. Duval Cnty. Sch. Bd., 112 F.3d 1475, 1477 (11th Cir. 1997)). 

“If events that occur subsequent to the filing of a lawsuit or an appeal deprive

the court of the ability to give the plaintiff or appellant meaningful relief, then the

case is moot and must be dismissed.” Al Najjar v. Ashcroft, 273 F.3d 1330, 1336

(11th Cir. 2001). “The general rule in our circuit is that a transfer or a release of a

prisoner from prison will moot that prisoner’s claims for injunctive and declaratory

relief.” Smith v. Allen, 502 F.3d 1255, 1267 (11th Cir. 2007), abrogated on other

grounds by Sossamon v. Texas, — U.S. —, 131 S. Ct. 1651, 179 L. Ed. 2d 700

(2011). “The reason for this rule is that injunctive relief is ‘a prospective remedy,

intended to prevent future injuries,’ Adler, 112 F.3d at 1477, and, as a result, once the

prisoner has been released, the court lacks the ability to grant injunctive relief and

correct the conditions of which the prisoner complained.” Smith at 1267 (citations

omitted); see also Siegel v. Lapore, 234 F.3d 1163, 1172-73 (11th Cir. 2000) (“A

claim for injunctive relief may become moot if: (1) it can be said with assurance that

there is no reasonable expectation that the alleged violation will recur and (2) interim

relief or events have completely and irrevocably eradicated the effects of the alleged

violation.”) (quoting Reich v. Occupational Safety & Health Review Comm’n, 102

F.3d 1200, 1201 (11th Cir. 1997)).

The record establishes that plaintiff was released from the DOC’s custody on

October 30, 2013. (Doc. 99, p. 4 ¶ 4; Doc. 102). The chance of a repeated injury due

to plaintiff’s new violation of a criminal law, plaintiff’s criminal prosecution,

conviction and sentence to a term of imprisonment, and plaintiff’s subsequent

institutional conduct warranting placement in close management segregation, is too

speculative. See Cotterall v. Paul, 755 F.2d 777, 780 (11th Cir. 1985) (dismissing

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as moot inmate’s claim for injunctive relief relating to conditions of confinement at

county jail, where inmate had been transferred from jail to prison and chance of

repeated injury due to the inmate’s return to county jail was too speculative); Zatler

v. Wainwright, 802 F.2d 397, 399 (11th Cir. 1986) (inmate’s release from prison

mooted claim for declaratory and injunctive relief against head of prison). As there

is no reasonable expectation the alleged injury to plaintiff will recur, plaintiff’s claims

for injunctive relief are moot, and defendants are entitled to summary judgment on

those claims.

B. Plaintiff’s Claims For Compensatory and Punitive Damages Are Barred

By 42 U.S.C. § 1997e(e) 

Plaintiff seeks compensatory and punitive damages for the DOC’s alleged

violation of the ADA (denying him participation in the outdoor exercise program for

inmates held in close management and refusing a reasonable accommodation) and

Schwarz’s and Ellis’ alleged retaliation in violation of the First Amendment

(removing plaintiff from the handicap cell and confiscating his personal property). 

(Doc. 61, p. 23). The Prison Litigation Reform Act (“PLRA”) provides, “No Federal

civil action may be brought by a prisoner confined in a jail, prison, or other

correctional facility, for mental or emotional injury suffered while in custody without

a prior showing of physical injury.” 42 U.S.C. § 1997e(e). “[T]he phrase ‘Federal

civil action’ means all federal claims, including constitutional claims.” Napier v.

Preslicka, 314 F.3d 528, 532 (11th Cir. 2002). Although § 1997e(e) does not define

physical injury, the Eleventh Circuit has concluded that, to satisfy the statute, “the

physical injury must be more than de minimis, but need not be significant.” Harris

v. Garner, 190 F.3d 1279, 1286 (11th Cir. 1999), vacated, in part, on other grounds,

216 F.3d 970 (11th Cir. 2000) (en banc) (concluding that a “dry shave” was not the

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kind of physical injury cognizable under § 1997e(e)); see also e.g., Quinlan v. Pers.

Transp. Servs Co., 329 F. App’x 246, 249 (11th Cir. June 5, 2009) (concluding that

temporary chest pain, headache, difficulty breathing and periodic episodes of back

pain, none of which required immediate medical attention or evidenced physical

injury besides discomfort, did not surmount § 1997e(e)’s bar). 

This action, brought by plaintiff under 42 U.S.C. § 1983 and the ADA, is a

“Federal civil action” for purposes of § 1997e(e). Plaintiff was a prisoner at the time

he filed this action, and the harmof which plaintiff complains occurred while plaintiff

was in custody. Plaintiff seeks compensatory and punitive damages either for the

mental and emotional injury he suffered as a result of defendants’ conduct, or for the

alleged violations of his federal rights divorced from any mental or emotional injury

defendants caused. The only physical injury plaintiff alleges – in his unsworn and

unverified complaint – is that he suffered increased muscle atrophy, foot drop and

pain. The undisputed evidence in the summary judgment record completely refutes

this and demonstrates that plaintiff did not suffer any physical injury – increased

muscle atrophy, foot drop, pain, or other injury – due to the events at issue in this

lawsuit. As plaintiff did not suffer any physical injury as a result of defendants’

conduct, much less physical injury that is more than de minimis, he cannot recover

compensatory or punitive damages on any claim. 

C. Plaintiff Cannot Recover Any Damages (Even Nominal Ones) Against

The DOC On His ADA Claim, Because The Eleventh Amendment Bars

His Claim For Damages And Because Defendants Did Not Violate

Plaintiff’s Rights Under Title II Of The ADA

Plaintiff’s fifth amended complaint can be liberally construed as requesting

nominal damages against the DOC for its alleged violation of the ADA. Plaintiff

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claims the confiscation of his Magnum boots and walking cane denied him the

benefits of, and participation in, outdoor exercise offered by the DOC for inmates

housed in close management. (Doc. 61, p. 20). Title II of the ADA applies to

prisoners in state correctional facilities. See 42 U.S.C. § 12132; Pa. Dep't of Corr.

v. Yeskey, 524 U.S. 206, 210, 118 S. Ct. 1952, 1954-55, 141 L. Ed. 2d 215 (1998). 

The Eleventh Amendment prohibits a damages action by a private individual

against a state (or state agency) in federal court, absent waiver or express

congressional abrogation. Fed. Maritime Comm’n v. S.C. State Ports Auth., 535 U.S.

743, 765-66, 122 S. Ct. 1864, 152 L. Ed. 2d 962 (2002); Kentucky v. Graham, 473

U.S. 159, 167 n. 14, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985). As the Eleventh

Circuit explained recently in the context of a prisoner’s ADA claim against the State

of Georgia and the Georgia Department of Corrections:

A state is not immune where Congress has (1) unequivocally expressed

its intent to abrogate the states’ immunity through a clear legislative

statement, and (2) acted pursuant to a valid grant of constitutional

authority. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 72-73, 80, 120

S. Ct. 631, 640, 145 L. Ed. 2d 522 (2000) (citations omitted). The ADA

states that “[a] State shall not be immune under the [E]leventh

[A]mendment to the Constitution of the United States from an action in

Federal or State court of competent jurisdiction for a violation of this

chapter.” 42 U.S.C. § 12202. The Supreme Court has held that because

the Fourteenth Amendment grants Congress the power to enforce its

provisions, Title II of the ADA validly abrogates state sovereign

immunity to the extent that it creates a cause of action for damages

against states for conduct that violates the Fourteenth Amendment.

United States v. Georgia, 546 U.S. 151, 158-59, 126 S. Ct. 877, 881-82,

163 L. Ed. 2d 650 (2006).

Redding v. Georgia, 557 F. App’x 840, 844 (11th Cir. Feb. 18, 2014). Thus, unless

plaintiff establishes that the conduct underlying his ADA claim also violated his

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constitutional rights, he is barred by the Eleventh Amendment from recovering 

money damages against the DOC on his ADA claim.

This court determined previously that the conduct underlying plaintiff’s present

ADA claim did not violate plaintiff’s constitutional rights. (See Docs. 35, 51

(concluding that plaintiff’s medical deliberate indifference claims against individual

DOC employees who denied plaintiff his Magnum boots and walking cane and

replaced the Magnum boots with different boots – failed to state a constitutional

violation)). Because plaintiff has not shown the defendants’ conduct violated his

constitutional rights, the Eleventh Amendment precludes his recovery of any money

damages on his ADA claim. See, e.g., Redding, 557 F. App’x at 845 (holding that

state prison officials were entitled to Eleventh Amendment immunity from suit

arising out of assignment of disabled prisoner to top bunk in alleged violation of the

ADA, where prisoner’s allegations did not show the defendants’ conduct violated the

prisoner’s constitutional rights). 

Even if the court considered the issue anew in light of defendants’ summary

judgment materials, the evidence confirms that the defendants were not deliberately

indifferent to plaintiff’s federallyprotected rights. The evidence further demonstrates

that plaintiff was not denied the benefits of the DOC’s outdoor exercise program. 

To establish a claim of deliberate indifference, the plaintiff must prove “(1)

subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by

conduct that is more than [gross] negligence.” Townsend v. Jefferson Cnty., 601 F.3d

1152, 1158 (11th Cir. 2010) (alteration in original). In other words, a plaintiff must

demonstrate that the defendant was “aware of facts from which the inference could

be drawn that a substantial risk of serious harm exists” and drew the inference. 

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Farrow v. West, 320 F.3d 1235, 1245 (11th Cir. 2003) (quotation omitted). “[A]

simple difference in medical opinion between the prison’s medical staff and the

inmate as to the latter’s diagnosis or course of treatment” does not support a claim of

deliberate indifference. Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991).

Moreover, matters of medical judgment do not constitute deliberate indifference. 

Estelle v. Gamble, 429 U.S. 97, 107, 97 S. Ct. 285, 292-93, 50 L. Ed. 2d 251 (1976).

To state a prima facie case of disability discrimination under Title II, a plaintiff

must prove

(1) that he is a qualified individual with a disability; (2) that he was

either excluded from participation in or denied the benefits of a public

entity’s services, programs or activities, or was otherwise discriminated

against by the public entity; (3) that the exclusion, denial of benefit, or

discrimination was by reason of the plaintiff’s disability.

Bircoll v. Miami-Dade Cnty., 480 F.3d 1072, 1083 (11th Cir. 2007) (citing Shotz v.

Cates, 256 F.3d 1077, 1079 (11th Cir. 2001)). 

After plaintiff’s Magnum boots and cane were confiscated upon his arrival at

SantaRosaCI (boots which plaintiff had complained did not fit himproperly and had

demanded replacement, and which Dr. McClunney had ordered replaced with

different boots), the DOC offered plaintiff an alternative accommodation in

accordance with medical practitioners’ recommendations – different boots wide

enough to accommodate plaintiff’s brace. Plaintiff has not shown how or why the

alternative prescribed boots were inadequate. Plaintiff’s disagreement with that

course of treatment is not sufficient to establish deliberate indifference or that the

accommodation was unreasonable. With regard to the cane, ARNP Nichols did not

issue plaintiff a pass for a walking cane because she observed plaintiff was “steady

on feet” without use of a cane (Nichols observed plaintiff walk in flip-flops without

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therapeutic boots). Plaintiff had the opportunity for outdoor exercise, but refused,

independently, when outdoor exercise was offered. Plaintiffrefused outdoor exercise

even after receiving (on November 22, 2007) the new therapeutic boots Dr.

McClunney had ordered – boots which plaintiff admitted fit himwell. (Doc. 108, Ex.

G, pp. 21-24). In light of this evidence, a reasonable jury could not conclude that the

DOC denied plaintiff accessto outdoor exercise. Defendants are entitled to summary

judgment on plaintiff’s ADA claim.

D. Defendants Did Not Retaliate Against Plaintiff In Violation Of His First

Amendment Rights 

Plaintiff claims defendants Schwarz and Ellis “demonstrated intentional

retaliation” for plaintiff’s filing grievances, when Schwarz threatened plaintiff,

moved him from a handicap cell to a standard cell, and ordered Ellis to confiscate

plaintiff’s personal property. Plaintiff claims Ellis carried out Schwarz’s command

by confiscating and threatening to destroy some of plaintiff’s photographs. (Doc. 61,

pp. 17-18, 20-21). The First Amendment prohibits a prison official from retaliating

against an inmate for exercising his free speech rights, including the right to complain

about the conditions of confinement and to file prison grievances. Farrow v. West,

320 at 1248. “An inmate may maintain a cause of action for retaliation under 42

U.S.C. § 1983 by showing that a prison official’s actions were the result of the

inmate’s having filed a grievance concerning the conditions of his imprisonment.”

O’Bryant v. Finch, 637 F.3d 1207, 1212 (11th Cir. 2011) (quotation marks and

brackets omitted). A First Amendment retaliation claim requires an inmate to prove

that “(1) he engaged in constitutionally protected conduct; (2) the defendant’s

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

connection between the retaliatory act and the adverse effect on the conduct.” Smith

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v. Fla. Dep’t of Corr., 713 F.3d 1059, 1063 (11th Cir. 2013) (citing Bennett v.

Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005)). To establish causation, the plaintiff

must show that the defendant was “subjectively motivated to discipline” the plaintiff

for exercising his First Amendment rights. Smith v. Mosley, 532 F.3d 1270, 1278

(11th Cir. 2008). 

Defendant Schwarz’s affidavit, submitted in support of hismotion for summary

judgment, states that at the time he moved plaintiff, he had no knowledge of

plaintiff’s grievances concerning his therapeutic boots and walking cane. (Doc. 108,

Ex. D, Schwarz Decl. ¶ 3). Defendant Schwarz further states that he did not verbally

threaten plaintiff, did not retaliate against himin any way, and did not instruct anyone

else to retaliate against plaintiff. (Id. ¶ 2). Similarly, defendant Ellis’ affidavit states

that he had no contemporaneous knowledge of the grievances plaintiff had filed; that

he did not retaliate against or harass plaintiff in any way; and that defendant Schwarz

never instructed Ellis to retaliate against or harass plaintiff. (Doc. 108, Ex. E, Ellis

Decl. ¶¶ 2, 3). By failing to contest defendants’ affidavits or to provide any evidence

in support of his general, unsworn assertion of retaliation, plaintiff has not raised a

genuine issue of material fact as to whether defendants Schwarz and Ellis knew of

plaintiff’s medical grievances (and thus were subjectively motivated to discipline

plaintiff for filing them). As plaintiff cannot establish the requisite causation,

defendants are entitled to summary judgment on plaintiff’s First Amendment

retaliation claim. 

Accordingly, it is ORDERED:

The clerk shall correct the docket to reflect that defendant “Swartz” is

defendant “John Schwarz.”

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And it is respectfully RECOMMENDED:

1. That defendants’ motion for summary judgment (doc. 106) be GRANTED.

2. That the clerk be directed to close the file.

At Pensacola, Florida this 15th day of July, 2014.

/s/Charles J. Kahn, Jr. 

CHARLES J. KAHN, JR.

UNITEDSTATES MAGISTRATEJUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen days after being served a copy hereof. Any different deadline that may

appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

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