IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

JOSE ELIAS SEPULVEDA,

Plaintiff, 

vs. 1:01-CV-011-SPM

FLOYD GIPSON,

Defendant.

_____________________________/

ORDER

Plaintiff, an inmate in a medium security Federal Correctional Institution in

Coleman, Florida, seeks relief under 42 U.S.C. § 1983 for alleged violations of

his Eighth Amendment right to be free from cruel and unusual punishment. The

lone defendant in this action is Floyd Gipson, who was employed as a

correctional officer at the Alachua County Sheriff’s Office during the event in

question. Gipson let Plaintiff and another inmate Donald Small out of their cells at

the same time, in order to obtain haircuts. While released from their cells inmate

Small physically attacked Plaintiff. 

Both inmates were Special Management inmates and in allowing both

inmates out of their cell at the same time, Gipson violated three specific Alachua

County Correctional Center policies. 1) only one Special management inmate is

allowed out of his cell at one time; 2) Special Management inmates must be

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placed in leg restraints before leaving their cell; and 3) metal chairs should not

have been left in the common area where the inmates were released. The

Eleventh Circuit stated “[h]ad Officer Gipson followed established procedures,

Small would not have had the opportunity to attack Sepulveda.” Sepulveda v.

Burnside, 170 Fed. Appx. 119, 121 (11th Cir. Fla. 2006). As a result of the

attack, Plaintiff suffered hearing damage. Plaintiff claims that Gipson was fully

aware of Small’s animosity towards Plaintiff and Gipson “had good reason to

expect that Small would assault Sepulveda if given the opportunity.” Id. “The

primary question in this case concerns Officer Gipson's knowledge of the threat

that Small posed to Sepulveda, and there is sufficient evidence of such

knowledge to establish the subjective element of an Eighth Amendment claim.”

Id.

Plaintiff is proceeding pro se. It appears that the interest of justice may be

served if Plaintiff were represented by counsel in this case, although he has not

moved for such appointment. The court will not appoint an attorney (that is,

require an attorney to accept the case), but it will notify members of the court’s

bar that Plaintiff will benefit from legal representation. This will be done through

the court’s electronic fling system.

Accordingly, it is ORDERED that the Clerk of the Court shall send a notice

to all members of the court’s bar providing in substance:

This is a notice of an opportunity to provide pro bono representation in a

case ready to be set for jury trial in Gainesville. The case is Sepulveda v.

Burnside, Case No. 1:01cv11.

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Plaintiff, an inmate in the Bureau of Prisons, currently incarcerated at a

medium security Federal Correctional Institution in Coleman, Florida, seeks relief

under 42 U.S.C. § 1983 for alleged violations of his Eighth Amendment right to

be free from cruel and unusual punishment. The lone defendant in this action is

Floyd Gipson, who was employed as a correctional officer at the Alachua County

Sheriff’s Office during the event in question. Defendant Gipson allowed Plaintiff

and another inmate, Donald Small, out of their cells at the same time, in order to

obtain haircuts. While released from their cells inmate Small physically attacked

Plaintiff. 

Both inmates were Special Management inmates and in allowing both

inmates out of their cell at the same time, Gipson violated three specific Alachua

County Correctional Center policies. 1) only one Special management inmate is

allowed out of his cell at one time; 2) Special Management inmates must be

placed in leg restraints before leaving their cell; and 3) metal chairs should not

have been left in the common area where the inmates were released. The

Eleventh Circuit stated “[h]ad Officer Gipson followed established procedures,

Small would not have had the opportunity to attack Sepulveda.” Sepulveda v.

Burnside, 170 Fed. Appx. 119, 121 (11th Cir. Fla. 2006). As a result of the

attack, Plaintiff suffered hearing damage. “The primary question in this case

concerns Officer Gipson's knowledge of the threat that Small posed to

Sepulveda, and there is sufficient evidence of such knowledge to establish the

subjective element of an Eighth Amendment claim.” Id.

The case has not yet been set for trial. There are pending discovery and

other pretrial motions that will not be ruled upon until resolution of the matter of

possible representation by counsel.

Public funds are not available for payment of attorney’s fees. Fees may be

recoverable under applicable law if plaintiff ultimately prevails. See 42 U.S.C. §

1988. Limited funds sometimes are available from the district’s Bench and Bar

Fund for payment of out-of-pocket expenses incurred by attorneys providing

representation of this type.

Members of the district’s bar will be afforded access to the electronic

docket without charge for the purpose of considering whether to undertake the

representation. Any attorney who wishes to provide representation may contact

plaintiff directly and may enter the case by filing a notice of appearance. If

counsel appears, the court will hold a scheduling conference by telephone and

will consider what discovery, if any, is indicated.

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Any attorney who wishes to appear should file a notice of appearance by

Monday, August 21, 2008. Subject to Plaintiff’s veto, the attorney who appears

first will be counsel until the case is resolved.

DONE AND ORDERED this twenty-third day of July, 2008.

 s/ Stephan P. Mickle 

Stephan P. Mickle

United States District Judge

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