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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

DARRYLL McKENZIE,

Plaintiff,

v. 

WALTER McNEIL, et al.,

Defendants.

Case No. 4:11-cv-45-RH-WCS

PLAINTIFF’S TRIAL BRIEF

Plaintiff, DARRYLL McKENZIE, by and through his undersigned attorney, 

files the following Trial Brief in the above-styled case: 

Introduction:

This is not just a case about a series of beatings. Darryll McKenzie, a prison 

whistleblower, had angered corrections officers by speaking out about abuses and 

unfair and unlawful treatment in prison. He had been denied clean clothes for weeks 

prior to the incident that resulted in his physical injury by corrections officers. After 

his injury he was kept in his boxer shorts during some nights when the temperature 

fell into the 30’s. When he finally got bedding it was wet and smelled of urine.

Sgt. Timothy Ford was the Dorm Officer. He liked to say “My word is God 

back here.” He knew well that Darryll McKenzie was getting sick from filthy clothing 

and he wanted that. He knew Darryll McKenzie was freezing in his cell after the 

beatings and he wanted that too. He could have changed those conditions anytime.

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Captain Roundtree and Captain Stephens were also aware of the conditions 

under which Darryll McKenzie suffered both before and after the beatings that 

McKenzie received, beatings that they participated in. Both of them, but especially 

Capt. Roundtree, were notorious in the prison for their violence and cruelty. Warden 

Singer was present when Capt. Roundtree told Mr. McKenzie afterwards, “I could 

have killed you.” Warden Singer said nothing to McKenzie but, “You can go.”

Facts to Be Proven at Trial

On October 20, 2008, Mr. McKenzie was housed in confinement at Columbia 

Correctional Institution in Lake City, Florida. For weeks, he was denied a change of 

clothing. Plaintiff rinsed his clothing in the shower but had no way to dry it. The wet 

clothing caused the spread of mildew in the cell, adding to the unbearable smell of the 

clothing. On November 11, 2008, Mr. McKenzie and his roommate Shawn Bair could 

no longer endure the smell and Mr. McKenzie washed the only set of clothing he had 

and hung them on a light fixture to dry. Defendant Ford ordered the clothing 

removed and later, when he saw the clothing hanging on the bed, told Plaintiff he was 

going to give him a Disciplinary Report (DR). Plaintiff told Defendant Ford he would 

write him up (grieve Ford) as well. Defendant Ford replied, “I run confinement and 

my word is God back here.” Sgt. Ford called Officer Moore to get McKenzie’s cell 

mate Shawn Bair for a medical call-out. It was a holiday weekend and a medical callout would be unlikely. Moreover, all medical callouts are published first thing in the 

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morning and this was not on the list. Plaintiff suspected a pretext and that he was 

going to be beaten. Both inmates were cuffed and led out of the cell about 12:45 p.m. 

When McKenzie left the cell, Sgt. Ford entered and took all his clothing except 

the gray sweatshirt, which was still in Mr. McKenzie’s hands. Defendants Ford and 

Moore then escorted Plaintiff and his cell mate, Shawn Bair, to the showers at the end 

of the hall. As Plaintiff was entering the shower cell, as ordered, Sgt. Ford grabbed 

McKenzie and slammed him on the floor. Mr. McKenzie was sprayed with chemicals 

by Sgt. Ford. Plaintiff McKenzie was also beaten. Defendant Captain Kenneth 

Roundtree came to the area and Mr. McKenzie and Mr. Bair tried to explain what 

happened. Defendant Roundtree said, “Shut your goddamned mouth you son of a 

bitch.” Mr. McKenzie informed Roundtree that he would grieve him as well. 

Defendant Roundtree then ordered Defendants Ford and Moore to move Plaintiff 

from the shower into the hallway out of the scope of the video cameras. A hand-held 

camera had been sent for but Capt. Roundtree did not wait.

Inmate witnesses, including Isaac Smith, saw the initial interchange between 

Sgt. Ford and Mr. McKenzie. They heard Sgt. Ford say that Shawn Bair had a medical 

call-out. They saw Sgt. Ford and Officer Moore take the two inmates down the hall. 

And they saw Mr. McKenzie enter the shower cell and get pulled out again.

While escorting Plaintiff off the wing, just outside the scope of the fixed wing 

cameras, Defendants Ford and Moore threw Plaintiff to the ground. The other 

officers punched and kicked him. Plaintiff was then dragged into another room by 

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Stephens, Roundtree, Ford, and Moore, all of whom punched or kicked Plaintiff. 

Defendant Stevens punched Plaintiff in the forehead with his fist, causing blood to 

flow freely from a wound above his right eye. While this was going on, Defendant 

Officers Ragans, Swift, Derringer, and Givens, witnessed the misconduct, had the 

ability to intervene to prevent the violation of Plaintiff’s rights either then or shortly 

thereafter by writing required reports but did not do so. After this beating, Plaintiff 

was escorted to Wing 3, a gash over his eye and blood dripping down his face.

Kevin Jones, an inmate in a holding cell on the other side of the control room, 

where they took Mr. McKenzie, saw still another beating outside a row of offices that 

included the nurse’s office, where they then took Mr. McKenzie. He saw officers 

beating McKenzie in the hall and then saw them take him into one of the officers and 

heard them shouting and beating him. He saw them take Mr. McKenzie back out of 

the officer with a gash over his eye and blood dripping down.

After Plaintiff was moved to Wing 3 of H Dorm, the hand-held video camera 

was started. Plaintiff was permitted to shower and was given only boxer shorts. 

Plaintiff was then taken to the nurse’s station and saw Nurse Heather Sherman. 

Plaintiff told Nurse Sherman he had recently had surgery and needed a doctor’s exam 

to assess the effect of the beating. Despite Plaintiff’s request and despite the fact that 

he had a visible injury, Nurse Sherman ignored his request to see a doctor. Sherman 

merely took vital signs and put a bandage on the gash over Plaintiff’s eye where 

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Captain Stephens had struck him. Department of Corrections rules require an inmate 

to be seen by a doctor when he has a visible injury.

Plaintiff was placed in a cell with no clothing but his boxers although the 

temperature in the unheated cell block was close to freezing at night. The next day, 

November 12, 2008, Plaintiff again sought in vain to see a doctor. On November 13, 

2008, a female officer brought Plaintiff a witness statement for the use of force 

incident. Plaintiff said he needed his glasses and a pen. The female officer wrote that 

he refused to make a statement and went away. After two days in the cell with nothing 

but his underclothes, a corrections officer on the midnight shift finally gave Plaintiff 

pants and a shirt. On November 14, 2008, Plaintiff was brought some of his property. 

Plaintiff’s sheets and legal materials were wet with urine. After two more days in the 

cell, a corrections officer on the midnight shift said “enough is enough” and gave 

Plaintiff a change of clothing and ordered that he be brought clean bed linens. 

As a result of the attack, Mr. McKenzie suffered significant injuries to his head, 

mouth, neck, shoulders, back, and legs. Mr. McKenzie suffered pain and emotional 

distress. The Defendants aggravated a prior injury to Mr. McKenzie’s neck on which 

he had previously had an operation to fuse disks. 

Warden Singer maintained a policy of ignoring, minimizing, and failing to 

document or treat injuries to inmates suffered as a result of uses of force by 

corrections officers as a way of protecting prison security officers from liability for 

excessive uses of force at Columbia Correctional Institution. This policy existed prior 

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to the time Defendant Steven Singer became Warden of Columbia Correctional 

Institution but it was continued in force by Singer. Nine months later, Plaintiff was 

actually examined by a doctor, Dr. Michael Lord at the Reception Medical Center,

about the injury to his neck, which was causing a “popping” sound. This condition 

was noted for observation but no treatment was ever offered other than a cervical 

collar. No therapy or treatment was offered to Mr. McKenzie.

Defendant Singer was specifically aware of MINS reports that Defendants 

Stevens, Roundtree, Ford, and Moore, had been involved in multiple incidents of 

abuse of inmates prior to the incident sued upon but did nothing to prevent it. 

Defendant Singer was also present when Defendant Roundtree, referring to the use of 

force incident, threatened Plaintiff. Defendant Singer, knowing of the tradition of 

inmate abuse at Columbia C.I. failed to supervise or train corrections staff not to 

abuse inmates or to impress them that such behavior would not be tolerated. Plaintiff 

suffered bodily injury and resulting pain and suffering, disability, aggravation of an 

existing condition, humiliation, and mental anguish.

A. The Evidence

There are two fixed wing video recordings and one hand-held video recording. 

The fixed wing recordings are grainy and jerky but show the escort of Darryll

McKenzie and Shawn Bair from the vicinity of their cell to the shower cells that were 

used as holding cells at the far end of the corridor, the end closest to the control room.

The escort, which ends with Darryll McKenzie being snatched back out of the shower 

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cell he has already entered and thrown on the floor, is recorded from cameras at each 

end of the hall. The camera then shows Capt. Roundtree walking onto the wing. It 

shows Capt. Roundtree having an argument with Shawn Bair and then Sgt. Ford 

spraying Shawn Bair with chemicals. It shows Darryll McKenzie being taken off the 

wing, supposedly to go to a shower cell in Wing 3. However if Wing 3 was their 

destination, they would have gone left. But they go right.1Inmates in their cells on 

Wing 2 are able to see Mr. McKenzie beaten again once he is just out of range of the 

cameras. The officers in the control room, which is in the center of all this activity,

would have been able to see all the uses of force against Darryll McKenzie.

The hand-held video was not started until about 13 minutes after Darryll 

McKenzie is led off the wing. The hand-held video shows Mr. McKenzie showering 

and being given only a pair of boxer shorts. The sweater that he had in his hand in the 

fixed wing camera is missing. He is escorted in only boxer shorts to the nursing station. 

It is hard to hear what goes on but it is clear that Mr. McKenzie is not happy about his 

medical treatment. Mr. McKenzie will explain that he was asking to see a doctor and 

being denied. Capt. Stephens becomes upset and asks Mr. McKenzie if he is “refusing”

medical treatment. Capt. Stephens starts to take him out. Mr. McKenzie then accepts 

 

1 Capt. Roundtree, later, in discovery, adjusts his testimony to explain this anomaly, stating that 

Darryll McKenzie himself caused this route deviation by pulling to the right so that the officers had 

to leave him in a holding cell outside Wing 3, a detail that is missing from any of the reports of the 

incident. On the video it is clear Mr. McKenzie is not pulling away.

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the treatment that is being offered – a bandage for the gash on his forehead.2 He is 

taken to his cell still in his boxer shorts by Capt. Stephens and that is how Stephens 

leaves him. The temperature will go down to 37 degrees that night and the temperature 

on the wing will be about the same. He will not receive clothing for several days. When 

he finally receives bedding, it will be wet and smell of urine.

B. Failure to Intervene

The officers in and around the control room had a complete view of all the 

activity in all three wings, 1, 2, and 3, as well as the corridor of the periphery of the 

control room where Darryl McKenzie was beaten twice and taken into a room and 

beaten yet again. Their failure to intervene does not simply consist in their failure to 

order officers – including, admittedly, senior officers – to cease and desist in their 

constitutionally abusive behavior, but in their failure to write required incident reports 

that would presumably have forced administrative attention on Mr. McKenzie and 

saved him from further retaliation, secured him medical treatment for his visible injury 

and brought him clean, warm clothing in his cell in confinement in Wing 3.

C. Excessive Force

Mr. McKenzie was physically abused on camera outside the shower/holding cell 

at the opposite end of the corridor from his cell. He was clearly going into the cell,

physically inside it when Sgt. Ford, who could then have closed the door if he feared 

 

2 Department rules state Mr. McKenzie is supposed to see a doctor if he has a visible injury.

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Mr. McKenzie, is seen yanking him back out and onto the floor. Inmates will describe 

Mr. McKenzie being beaten again just off the scope of the cameras in the corridor 

around the central control room, beaten again outside the offices on the far side of the 

control room from Wing 2, and again inside one of the offices.. Not only was Mr. 

McKenzie a victim of an Eighth Amendment violation, but a reasonable jury could 

conclude that the physical abuse was an effort to retaliate against Mr. McKenzie for his 

exercise of free speech as a “writ writer” and create a sense of fear and despair that 

would make a lasting mark on Mr. McKenzie.

D. Cognizable Injury

There are two kinds of injuries in this case. One is the physical injury, the gash 

over Mr. McKenzie’s eye. The other is the weeks of going without clean clothing prior 

to the violent incident and being placed in a cell without clothing (other than boxers)

over cold nights. Both kinds of injuries were in retaliation for Mr. McKenzie’s exercise 

of free speech in criticizing inhumane conditions and unfairness in the prison.

The physical injuries, including a gash to Mr. McKenzie’s forehead and trauma 

that caused a “popping sound” when he moved his neck, and trauma to his tongue

(which does later receive treatment), constitute cognizable injury under 42 U.S.C. 

1997e(e). Though section 1997e(e) does not define physical injury, courts have 

concluded that “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 ). Johnson v. Breeden, 280 F.3d 

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1308, 1312, 1321 (11th Cir.2002) (a head injury that caused swelling and seizure, along 

with lacerations and contusions, constituted more than de minimis injury). In Wilkins v. 

Gaddy, the U.S. Supreme Court rejected the idea that “significant injury” is a threshold 

requirement for an excessive force claim. The Court found that:

The “core judicial inquiry,” was 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.” 503 

U.S. at 7, 112 S.Ct. 995; see also Whitley v. Albers, 475 U.S. 312, 319-321, 106 

S.Ct. 1078, 89 L.Ed.2d 251 (1986). “When prison officials maliciously and 

sadistically use force to cause harm,” the Court recognized, “contemporary 

standards of decency always are violated ... whether or not significant injury is 

evident. Otherwise, the Eighth Amendment would permit any physical 

punishment, no matter how diabolic or inhuman, inflicting less than some 

arbitrary quantity of injury.” Hudson, 503 U.S. at 9, 112 S.Ct. 995; see also id., at 

13-14, 112 S.Ct. 995 (Blackmun, J., concurring in judgment) (“The Court today 

appropriately puts to rest a seriously misguided view that pain inflicted by an 

excessive use of force is actionable under the Eighth Amendment only when 

coupled with ‘significant injury,’ e.g., injury that requires medical attention or 

leaves permanent marks”).

Wilkins v. Gaddy, 130 S.Ct. 1175, 1178 (2010).

E. Qualified Immunity

Qualified immunity, once called “good faith” immunity, is intended to ensure 

that before an official is subjected to a lawsuit, that official is on notice that the 

alleged conduct is unlawful. Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 153 (2002).

However the U.S. Supreme Court in United States v. Lanier, 520 U.S. 259, 117 

S.Ct. 1219, 137 L.Ed.2d 432, makes clear officials may be on notice that their actions 

violate the law even in novel factual situations. The Court clearly rejected a 

requirement that previous cases be “fundamentally similar.” The question is simply 

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whether the state of the law gave the official warning that the actions were 

unconstitutional. Hope v. Pelzer , 536 U.S. at 731.

In Vinyard v. Wilson, the Eleventh Circuit suggested that there are three kinds of 

cases that differently address issues of qualified immunity. The first kind of cases will 

be those that are specific enough to establish clearly the law applicable to particular 

conduct and circumstances with “obvious clarity” and to overcome qualified 

immunity, even in the total absence of case law. Vinyard v. Wilson, 311 F.3d 1340, 1350 

(11th Cir. 2002). The next kind of case will be reviewable based on “broad statements 

of principle” which, again, with “obvious clarity,” govern the subject matter of the 

lawsuit without being tied to particularized facts. Id. at 1351. The third type of case is 

that which does depend on particularized facts, and in those cases, a court will seek to 

determine whether the particularized facts of the case at bar can be “fairly 

distinguished” from the precedent such that qualified immunity may apply. This case 

certainly belongs in the “obvious clarity” category of cases.

F. Deliberate Indifference

“Deliberate indifference” may be shown through circumstantial evidence. See 

Farmer v. Brennan, 511 U.S. 825, 842, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). In Farmer, 

a case involving a prisoner who claimed that prison officials showed “deliberate 

indifference” in violation of the Eighth Amendment by placing him at risk among the 

general prison population, the Supreme Court stated that [w]hether a prison official had 

the requisite knowledge of a substantial risk is a question of fact subject to 

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demonstration in the usual ways, including inference from circumstantial evidence and 

a factfinder may conclude that a prison official knew of a substantial risk from the very 

fact that the risk was obvious. Id. There is no longer a “heightened pleading standard” 

in the Eleventh Circuit as it relates to cases governed by Rule 8(a)(2), including civil 

rights complaints since Ashcroft v. Iqbal, 556 U.S. ----, 129 S.Ct. 1937, 173 L.Ed.2d 868 

(2009),. Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010). 

While prison officials cannot be held liable based on constructive notice, they are 

not free to ignore obvious dangers to inmates. Farmer v. Brennan, 511 U.S. at 826. 

Circumstantial evidence may be enough to prove liability. A prisoner need not show 

that an official failed to act believing that harm actually would befall an inmate; it is 

enough that the official acted or failed to act despite his knowledge of a substantial risk 

of serious harm. Id. at 842.

Warden Singer was on notice that the officers involved in the abuse of Darryll 

McKenzie were implicated in multiple incidents of inappropriate force and threats.

Capt. Roundtree, in fact, was the subject of a huge number of such incidents. These 

were not incidents that were resolved in the officers’ favor but essentially left 

undetermined. In some cases, they were returned to Warden Singer in MINS reports as 

“management issues.” He read the reports. There is no evidence that he did anything to 

follow up on the reports in his “management” role.

G. Distractions

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Defendants will try to distract the Jury from the issues in this case. They will seek 

to find a way to suggest to the Jury that Mr. McKenzie had a homosexual relationship 

with one or more of his cellmates. Counsel for Defendants was very interested in his 

deposition of Mr. McKenzie in knowing whether Mr. McKenzie’s cell mate at the time 

of the incident complained of was homosexual.

When they run out of bad things to say about Mr. McKenzie personally, they will 

bring corrections staff at all levels to say, “prisoners do this” and “prisoners do that.”

They will say that prisoners are manipulative. They will say prisoners exaggerate, 

prisoners lie. Prisoners are just looking for a chance to physically attack corrections 

officers. Prisoners are violent. Prisoners all keep contraband. The Court should strongly 

warn Defendants’ counsel to instruct their witnesses to curb their generalizations and 

innuendo. We, on the other hand, do not claim that corrections officers are all violent 

and cruel. It happens that the officers at the center of this case are very violent.

H. Damages

Mr. McKenzie suffered an actual physical injury that was more than de minimis, 

a bleeding gash over his eye. He suffered physical pain, mental distress, feelings of rage 

and hopelessness, humiliation, depression and anxiety. In addition to damages based on 

physical pain and suffering, under the law a § 1983 plaintiff also may be awarded 

compensatory damages based on demonstrated mental and emotional distress, 

impairment of reputation, and personal humiliation. Slicker v. Jackson, 215 F.3d 1225, 

1231 (11th Cir. 2000), citing Carey v. Piphus, 98 S.Ct. 1042, 1052 (1978); Memphis 

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Community School District v. Stachura, 477 U.S. 299, 307, 106 S.Ct. 2537, 2543. See also, 

Wright v. Sheppard, 919 F.2d 665, 669 (11th Cir. 1990) (holding humiliation, emotional 

distress, and mental anguish and suffering are all within the ambit of § 1983 

compensatory damages); O'Neill v. Krzeminski, 839 F.2d 9, 13 (2d Cir.1988)(holding that 

§ 1983 plaintiff alleging excessive force by a law enforcement officer was entitled to full 

compensation for his emotional pain).

Respectfully Submitted,

s/James Cook____________________

JAMES V. COOK

Florida Bar Number 0966843

314 West Jefferson Street

Tallahassee, Florida 32301

(850) 222-8080; 561-0836 fax

cookjv@nettally.com

I CERTIFY the foregoing was filed electronically on 02/22/2012, and that the person 

noted below is registered to be notified by the CM/ECF electronic mail system:

Lance Eric Neff, Mark Hiers

Office of the Attorney General

The Capitol, PL 01

Tallahassee, FL 32399-1050

Lance.neff@myfloridalegal.com

Ginger Barry Boyd

Broad and Cassel

200 Grand Boulevard, Suite 205A

Destin, Florida 32550

gbarry@broadandcassell.com

s/James Cook____________________

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