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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

DARRYLL JOEL McKENZIE,

Plaintiff,

vs.

WALTER McNEIL, et al.,

Defendants.

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

RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

COMES NOW the Plaintiff, by and through the undersigned attorney, and 

responds to Defendants’ Motion for Summary Judgment and would show:

1. Defendants have filed a Motion for Summary Judgment on these grounds:

a. “Plaintiff’s Claims on First Use of Force are Heck-Barred”

b. “Plaintiff Hasn’t Shown a Valid Excessive Force Claim”

c. “Ragans, Swift, Norris, Givens and Derringer Were Not There”

d. “Plaintiff Has Not Stated a Retaliation Claim”

e. “No Deliberate Indifference Shown as to Singer or Anderson”

f. “No Failure to Treat Claim as to Defendant Singer”

g. “Plaintiff Cannot Recover Compensatory or Punitive Damages”

2. Plaintiff responds as follows:

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a. A “Heck-bar” does not implicate jurisdiction. Plaintiff’s claims are not 

inconsistent with and do not necessarily imply the invalidity of the 

Disciplinary Report and, finally, this is an issue already decided by the 

Court. Doc 37, Order Denying Motion to Dismiss. Defendants have not 

brought forward new admissible evidence to justify re-litigation of this issue.

b. Defendants’ claim that Plaintiff hasn’t shown a valid excessive force claim is 

based on their rendition of the facts, not his. It is disingenuous for 

Defendants to claim a jury could not watch the fixed wing video as Mr. 

McKenzie is escorted casually by one arm and is seen actually entering the 

holding cell before he is pulled back and thrown to the floor, and 

reasonably find that Mr. McKenzie did not resist or attack the officers. And 

they do not address at all the allegation that the officers attacked him again 

after taking him off the wing or the testimony of Plaintiff or of other inmate 

witnesses. Exhibit A, Deposition of Darryll McKenzie, p. 24-54, 74-106; 

Exhibit B, Declaration of Darryll McKenzie; Exhibit C, Declaration of 

Kevin Jones; Exhibit D, Declaration of Isaac Smith; Exhibit E, 

Inspector General’s Report, Statement of Inmate Witnesses, p. 5-20.

c. Defendants Ragans, Swift, Norris, Givens and Derringer claim they are 

entitled to summary judgment because they say they were not at the scene 

although Mr. McKenzie says they were. Mr. McKenzie did agree to drop 

Mr. Norris because he now believes he was misinformed as to the identity 

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of the officer he was told was Norris. As to the others, it is clear that 

officers moved around and even Defendants admit that some of the people 

present that day were not where the work roster said they were. Exhibit A,

Deposition of Darryll McKenzie, p. 157-58.

d. Defendants state Plaintiff has not stated a retaliation claim. An inmate may 

state a cause of action for physical abuse as retaliation for filing grievances. 

The abuse of Mr. McKenzie occurred immediately after his declaration that 

he would grieve Sgt. Ford for his mistreatment in confinement. Sgt. Ford's 

behavior in stating "my word is God back here," and in removing Mr. 

McKenzie from his cell on a pretext and in jerking him from the holding 

cell when he was certainly no threat, as well as Capt. Roundtree's curses 

followed by a beating, supports a jury finding that the physical abuse of Mr. 

McKenzie was retaliation. Exhibit A, Deposition of Darryll McKenzie, 

p. 76-78;.Exhibit B, Declaration of Darryll McKenzie.

e. Defendants claim no deliberate indifference was shown as to Defendant 

Singer or Anderson. Plaintiff agreed to drop Defendant Anderson from the 

case. However as to Defendant Singer, he was made well aware of the 

numerous allegations of brutality against the officers who committed 

physical abuse of Mr. McKenzie. Documents reporting on these incidents, 

which were neither substantiated nor unsubstantiated, were routed to him 

for disposition. Exhibit F, Deposition of Steven Singer, p. 11.

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f. Defendants claim there is no failure to treat claim as to Defendant Singer. 

First of all, on the date of the incident complained of, plaintiff had a visible 

injury that required a physician’s evaluation. No such evaluation was done 

and that fact would have been clear on the face of the Inspector General’s 

Report and Use of Force Reports reviewed by Warden Singer. Medical 

issues are ultimately reviewable by the Warden. Not until the August 2009 

evaluation by Dr. Lord at RMC did a physician evaluate Mr. McKenzie’s 

neck injury. Exhibit E, Inspector General and Use of Force Reports, p. 

29-30; Exhibit G, Rule 33-602.210(20), Florida Rules of Administrative 

Procedure; Exhibit F, Deposition of Steven Singer, p. 26-27.

g. Defendants claim that Mr. McKenzie cannot recover compensatory or 

punitive damages because his injuries were not severe enough. Mr. 

McKenzie suffered a bleeding gash over his eye and an insult to his neck 

where he had previously had surgery that caused a "popping sound" that 

had not existed before. The injury caused Mr. McKenzie a great deal of pain 

and he has not yet received actual treatment. Exhibit A, Deposition of 

Darryll McKenzie, p. 167; Exhibit B, Declaration of Darryll McKenzie; 

Exhibit C, Declaration of Kevin Jones.

3. For the above reasons, Defendants’ Motion for Summary Judgment must be 

DENIED.

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PLAINTIFF’S STATEMENT OF FACTS

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

Correctional Institution in Lake City, Florida. For weeks, Plaintiff was denied changes 

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 

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. 

Exhibit A, Deposition of Darryll McKenzie, p. 24-45; Exhibit B, Declaration of 

Darryll McKenzie; Exhibit D, Declaration of Isaac Smith.

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

the gray sweatshirt, which was still in Plaintiff’s hands. Defendants Ford and Moore 

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

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corridor. 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 by Officer Moore. 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. 

Exhibit A, Deposition of Darryll McKenzie, 43-45, 70-75, 80-86; Exhibit B,

Declaration of Darryll McKenzie; Exhibit H, Fixed Wing Video Recording.

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. Defendant Stevens punched Plaintiff in the 

forehead with his fist, causing blood to flow freely from a wound above his right eye. 

Plaintiff was then dragged into another room by Stephens, Roundtree, Ford, and 

Moore, all of whom punched or kicked Plaintiff. While this was going on, Defendant 

Officers Ragans, Swift, Derringer, and Givens, had the ability to intervene to prevent 

the violation of Plaintiff’s rights 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. Exhibit A,

Deposition of Darryll McKenzie, p. 87-106; 139-150; Exhibit B, Declaration of 

Darryll McKenzie; Exhibit C, Declaration of Kevin Jones.

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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 

Captain Stephens had struck him. Plaintiff was placed in a cell with no clothing but 

his boxers although the temperature in the unheated cell block was close to freezing.

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. Exhibit A, Deposition of Darryll McKenzie, p. 164-74.

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 

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distress. The Defendants aggravated a prior injury to Mr. McKenzie’s neck. 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 existed at Columbia 

Correctional Institution under Defendant Singer. This policy existed prior to the time 

Defendant Steven Singer became Warden of Columbia Correctional Institution but it 

was continued in force by Singer. Nine months later, Plaintiff saw a doctor 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.

Exhibit I, Medical Records from Reception Medical Center.

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. 

Exhibit F, Deposition of Steven Singer, p. 56. Defendant Singer was also present 

when Defendant Roundtree, referring to the use of force incident, threatened 

Plaintiff. Exhibit A, Deposition of Darryll McKenzie, p. 174. 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.

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MEMORANDUM OF LAW

Summary judgment is appropriate only when the pleadings, depositions, and 

affidavits submitted by the parties show no genuine issue of material fact exists and 

that the movant is entitled to judgment as a matter of law. Rule 56(c), Federal Rules of 

Civil Procedure. The court should view the evidence and any inferences that may be 

drawn in the light most favorable to the non-movant. Adickes v. S.H. Kress and Co., 398 

U.S. 144, 158-159, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). The party seeking 

judgment must first identify grounds that show absence of a genuine issue of material 

fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 

(1986). The burden then shifts to the non-movant, who must go beyond the pleadings 

and present affirmative evidence to show that a genuine issue of material fact does 

exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 91 L. Ed. 2d 202, 106 S. Ct. 

2505 (1986). Plaintiff responds to each of the grounds for dismissal as follows:

A. “Heck-Barred First Use of Force Precludes Jurisdiction”

A Heck v. Humphrey issue is not a jurisdictional bar but rather a defense that is 

subject to waiver. 1 Polzin v. Gage, 636 F.3d 834, 837, 838 (7th Cir. 2011):

 

1 Contrary to defendants’ claim for an analogy, it is abundantly clear that neither does a failure to 

exhaust remedies void subject matter jurisdiction. 42 U.S.C. 1997e(2) states that if “a claim is, on its 

face, frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary 

relief from a defendant who is immune from such relief, the court may dismiss the underlying claim 

without first requiring the exhaustion of administrative remedies.” The U.S. Supreme Court emphasized that 

fact in Woodford v. Ngo, 548 U.S. 81 (2009), holding that “§ 1997e(c)(2) still serves a useful function 

by making it clear that the PLRA exhaustion requirement is not jurisdictional, and thus allowing a district 

court to dismiss plainly meritless claims without first addressing what may be a much more complex 

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Mr. Polzin maintains that the district court improperly ruled on the merits of 

his claims. In his view, the district court could not address his constitutional 

arguments on the merits because Heck required the court to dismiss his case 

without prejudice. The Heck doctrine is not a jurisdictional bar. . . Because it is 

not jurisdictional, the Heck defense is subject to waiver. . . We have implied, 

but never explicitly held in a published opinion, that district courts may bypass 

the question of whether Heck applies to decide a case on its merits. We now 

hold explicitly that district courts may bypass the impediment of the Heck 

doctrine and address the merits of the case."). 

Regardless of that fact, however, no Heck v. Humphrey issue is raised in the 

instant case, as the Court ruled in Defendants Motion to Dismiss. The Defendants 

should not be trying to re-litigate this issue here.

A plaintiff may prevail on an excessive force claim without necessarily implying 

the invalidity of the underlying conviction for the offense giving rise to the excessive 

force. See Smithart v. Towery, 79 F.3d 951, 952 (9th Cir.1996) (“Because a successful 

section 1983 action for excessive force would not necessarily imply the invalidity of 

Smithart's arrest or conviction [for assault with a deadly weapon during a traffic stop], 

Heck does not preclude Smithart's excessive force claim.”). See also, e.g., Vinyard v. 

Wilson, 311 F.3d 1340 (11th Cir.2002) (defendant who pleaded guilty to offenses for 

which she was arrested avoided summary judgment on claim of excessive force in 

effecting the arrest). See Wells v. Cramer, 158 F. App'x. 203, 204 (11th Cir. 2005).

Although Defendants work hard to blur the difference between the language 

“necessarily imply the invalidity” of the conviction and “cast doubt on” the 

 

question, namely, whether the prisoner did in fact properly exhaust available administrative 

remedies.” Id. at 101.

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disciplinary report. Disciplinary reports are not held to a very high standard of proof 

(“some evidence”) and little can be said about the actual process that does not cast 

doubt on its results. However especially in cases of excessive force the use of a 

particular level of force can almost always be challenged without challenging the 

finding that a prisoner violated a rule prior to its exercise.

As the U.S. Supreme Court stated in Heck v. Humphrey, “[I]f the district court 

determines that the plaintiff's action, even if successful, will not demonstrate the 

invalidity of any outstanding criminal judgment against the plaintiff, the action should 

be allowed to proceed, in the absence of some other bar to the suit. Heck v. Humphrey, 

512 U.S. 477, 487, 114 S. Ct. 2364, 2372-73, 129 L. Ed. 2d 383 (1994). Here, if the 

Plaintiff’s action does not negate the elements of the rule underlying the disciplinary 

report, it is not barred by Heck. For the Heck bar to apply, a plaintiff must negate “an 

element of the offense of which he has been convicted” in order to prevail in his civil 

action. Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003). That is not to say that 

because the version of events told by the officer and the plaintiff differ, the suit is 

barred. Rather, the suit may proceed if, even under the plaintiff’s version of events, 

the conviction “might still be valid.” Hughes at 1161. As expressed by the Eleventh 

Circuit in Dyer v. Lee, “for Heck to apply, it must be the case that a successful § 1983 

suit and the underlying conviction be logically contradictory.” Dyer v. Lee, 488 F.3d 

876, 884 (11th Cir. 2007). The Dyer court goes on to quote the Seventh Circuit:

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Were we to uphold the application of Heck in this case, it would imply that 

once a person resists law enforcement, he has invited the police to inflict any 

reaction or retribution they choose, while forfeiting the right to sue for 

damages. Put another way, police subduing a suspect could use as much force 

as they wanted-and be shielded from accountability under civil law-as long as 

the prosecutor could get the plaintiff convicted on a charge of resisting. This 

would open the door to undesirable behavior and gut a large share of the 

protections provided by § 1983.

VanGilder v. Baker, 435 F.3d 689, 692 (7th Cir.2006). The Dyer court continues, “Heck

was not intended to be a shield to protect officers from § 1983 suits. It was intended 

to protect habeas corpus and promote finality and consistency. Provided those goals 

are met, a § 1983 suit is not barred by Heck.” 488 F.3d at 884.

In Harrell v. Goodman, 4:06-cv-00362-RH-WCS, this Court declined to impose a 

Heck bar in constitutional excessive force litigation where the plaintiff was convicted 

of battery of a law enforcement officer, resisting an officer with violence, and fleeing 

and eluding. Id., p. 9. This Court held that the issue was not the averments of the 

officer or of the criminal information, but whether the elements of the offense were 

inconsistent with the success of the plaintiff’s civil action (Doc. 23, Order on 

Summary Judgment, 03/09/07).

In the instant case, Plaintiff received disciplinary reports for violating rule 9-17, 

Disorderly Conduct, and Disobeying an Order. Although each of the reports resulted 

in punishment by loss of gain time, neither is punishable by being slammed on 

concrete, beaten, or being sprayed with chemicals, much less being housed for an 

extended time without clothing in frigid temperatures. Nor are any of those rule 

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violations inconsistent with the allegation that officers violated the Plaintiff’s rights 

through the use of excessive force or failure to intervene in same.

At deposition, Plaintiff did state that the Disciplinary Reports that were written 

after the excessive force incident were, in fact, false. However his claim is not based 

on that fact but rather the fact that the force that was used was still excessive whether 

or not the Disciplinary Reports were true.

In Curry v. Syracuse, 316 F.3d 324 (2003), the court held:

The district court appears in this statement to have accorded collateral estoppel 

effect not only to the ALJ's finding that Curry struck Lynch, but also to the 

ALJ's mention in the course of his decision that Curry “reached for something 

on his ankle, socks.” However, unlike the ALJ's finding that Curry struck 

Lynch, the ALJ's statement that Curry reached for his sock was not necessary 

to the outcome of the parole revocation hearing. Curry's parole could have 

been revoked because he struck Lynch, whether or not he reached for his sock. 

Thus, it would not be proper to accord preclusive effect to this aspect of the 

ALJ's decision."

Similarly here, the fact that events did not unfold as claimed by the officer in 

the report was not essential to Plaintiff’s constitutional claim. The force that was used 

was not responsive to the behavior alleged in the Disciplinary Report but continued 

for a sustained period of time and was clearly a post-incident effort to “teach Plaintiff 

a lesson” because of his history of grievances against the officers. In any case, there 

were subsequent uses of force that were not responsive to any alleged wrongful acts 

by Plaintiff, which took place after Plaintiff was taken off the wing and which provide 

additional bases for the constitutional complaint.

B. “Plaintiff Hasn’t Shown a Valid Excessive Force Claim”

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Defendants’ claim that Plaintiff hasn’t shown a valid excessive force claim is

based on their rendition of the facts, not his. “As a ‘threshold question,’ a court must 

ask, ‘[t]aken in the light most favorable to the party asserting the injury, do the facts 

alleged show the officer’s conduct violated a constitutional right?’” Lee v. Ferraro, 284 

F.3d 1188, 1194 (11th Cir. 2002). The basis cannot ride solely on the defendant’s 

rendition of the facts. The question remains whether or not “a constitutional right 

would have been violated under the plaintiff’s version of the facts...” Id. 

Furthermore, it is disingenuous for Defendants to claim a jury could not watch 

the fixed wing video as Mr. McKenzie is escorted casually by one arm and is seen 

actually entering the holding cell before he is pulled back and thrown to the floor, and 

reasonably find that Mr. McKenzie did not resist or attack the officers. The video is 

not outside the realm of understanding for the average lay juror. The Jury will be able 

to view the video and “determine the officer’s intent in the incident. Questions 

regarding the reasonableness, excessiveness, or wantonness of an officer’s actions are 

matters left to the jury’s determination” Howell v. Houston County, Ga., 5:09-CV-402 

CAR, (M.D. Ga. Aug. 26, 2011). Additionally, from this video they will be able to 

“decide whether the officers acted in a good faith attempt to restore order or with a 

malicious and sadistic intent to cause harm” Id.

Defendants also contend that because “no constitutional violation occurred” 

they are entitled to qualified immunity. This misconstrues the meaning of the term. As 

this Court’s Order on Defendants’ Motion to Dismiss makes clear,

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Qualified immunity applies to damages claims against public officials and 

protects “all but the plainly incompetent or those who knowingly violate the 

law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). See generally Hope v. Pelzer, 536 

U.S. 730 (2002); Harlow v. Fitzgerald, 457 U.S. 800 (1982). Thus an official may 

be held individually liable only if the official’s conduct violates clearly 

established law. That standard is easily satisfied here: the law has long been 

clear that a supervisor can be held liable for maintaining a practice under which 

inmates are beaten or sprayed for no legitimate reason, and for keeping in place 

officers who have repeatedly done it.

Doc. 37, p. 10-11.

C. “Ragans, Swift, Norris, Givens and Derringer Were Not There”

Defendants Ragans, Swift, Norris, Givens and Derringer claim that they are 

entitled to summary judgment because they say they were not at the scene although 

Mr. McKenzie says they were. Mr. McKenzie did agree to drop Mr. Norris because he 

now believes he was misinformed as to the identity of the officer he was told was 

Norris. As to the others, it is clear that officers moved around and even Defendants 

admit that some of the people present that day were not where the work roster said 

they were. Defendant Kenneth Roundtree discusses how officers are moved around 

the compound based on need. He also specified that if officer is assigned on short 

notice he may not appear on log. Exhibit J, Deposition of Kenneth Roundtree, p. 

21. Similarly, Defendant Jason Stephens talks about secondary duties and their place 

on the roster. He states that if secondary duties do not last 30 minutes, they do not go 

on the log. Exhibit K, Deposition of Jason Stephens, p. 28. The Use of Force 

Paperwork shows that Scott Burleson, the cameraman who carried the hand-held 

camera on Plaintiff, and Scott Teston, both present, were not assigned to Dorm H. 

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Exhibit E, Inspector General and Use of Force Report, p. 33-34; Exhibit L,

Employee Roster.

Defendants also argue for summary judgment because they had no authority to 

order their superior officers to do—or not to do—anything. Defendants rely on 

Keating v. City of Miami, 598 F.3d 753, 765 (11th Cir. 2010). In Keating, Miami Police 

Major Adam Burden was present when their subordinate officers “herded” 

demonstrators out of the demonstration area in violation of their first amendment 

rights. The court there found Burden not liable on a failure to intervene claim because 

the “herding” had been set in motion by officers still higher in rank than Burden and 

he had no authority to countermand their orders. Burden had been singled out 

because he was a superior officer and because he was present. Id.

Even to the extent that this defense may obtain in the Eleventh Circuit, these 

facts do not justify it. Unlike the case in Keating, the officers here were not simply 

bystanders. They were clearly part of the savage use of force and encouraged it with 

taunts and jeers through the various stages of abuse and prolonged the abuse by 

failing to report it. And co-equal officers do not act to intervene to prevent a 

constitutional abuse on the basis of “authority.” One correctional officer may not 

have any authority to tell another what to do but must still intervene to prevent the 

abuse, if able, or be guilty of abuse as well.

D. “Plaintiff Has Not Stated a Retaliation Claim”

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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.” Farrow v. 

West, 320 F.3d 1235, 1248 (11th Cir. 2003). To establish a First Amendment 

retaliation claim, a prisoner need not allege the violation of an additional separate and 

distinct constitutional right; instead, the core of the claim is that the prisoner is being 

retaliated against for exercising his right to free speech. Id. To prevail on a retaliation 

claim, the inmate must establish that: “(1) his speech was constitutionally protected;

(2) the inmate suffered adverse action such that the [official's] allegedly retaliatory 

conduct would likely deter a person of ordinary firmness from engaging in such 

speech; and (3) there is a causal relationship between the retaliatory action [the 

disciplinary punishment] and the protected speech [the grievance].” Smith v. Mosley, 

532 F.3d 1270, 1276 (11th Cir. 2008).

Here, Mr. McKenzie was taken from his cell on a pretext after stating that he 

intended to file a grievance against Sgt. Ford. Mr. McKenzie was escorted to a holding 

cell and was actually inside the cell when Sgt. Ford yanked him out of the cell and 

threw him on the floor. He was subsequently beaten and sprayed without a valid 

penological purpose. When he tried to explain matters to Captain Roundtree, 

Roundtree replied, “Shut your goddamned mouth you son of a bitch.” Roundtree 

ordered Mr. McKenzie taken from the holding cell without a camera and later 

participated in beating and kicking Mr. McKenzie. Sgt. Ford yelled that, “My word is 

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God back here.” All the officers who physically abused Mr. McKenzie had expressed 

their hatred and contempt for him as a “writ writer,” a pejorative term.2

E. “No Deliberate Indifference Shown as to Singer or Anderson”

Defendants claim no deliberate indifference was shown as to Defendant Singer 

or Anderson. In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court set out 

elements that must be shown to establish an Eighth Amendment violation. 

“Deliberate indifference” may be shown through circumstantial evidence. Id. at 842.

An administrator such as Defendant Singer may be found liable, “when there is a 

causal connection between actions of the... official and the alleged constitutional 

deprivation. Lewis v. Smith, 855 F.2d 736, 738 (11th Cir.1988).

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 

 

2 Exhibit F, Deposition of Warden Steven Singer, p. 28-29:

Q. Okay. And have you heard the term writ writers?

A. Absolutely.

Q. Somebody who files a lot of grievances is known as a writ writer?

A. Absolutely. Yes, sir.

Q. Not a fond term?

A. Well, they have the right. They have to right to grieve. . . . So, but what happens with writ 

writers is the reason why folks are not all that fond of them is because their intent is to punish the 

staff --

Q. Mm-hmm.

A. -- by putting them to work, making allegations that are unfounded and so forth and I'm not 

saying that all of them are unfounded either, okay?

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subject to 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. 

According to Matthews v. Crosby, 480 F.3d 1265 (11th Cir. 2007), a causal 

connection can be established by a “history of widespread abuse” and the 

administrator is “put on notice of the need to correct the alleged deprivation” Id. at 

1270. The court in Mathews found that things such as inmate reports, grievances, and 

other factors that come to the warden for review constitute notice “of the need to 

correct [an] alleged deprivation” of rights Id. Courts have found that “[a] causal 

connection” may be established if there are facts that “support an inference” that the 

administrator had knowledge that the “subordinates would act unlawfully and failed to 

stop them from doing so” Gonzalez v. Reno, 325 F.3d 1228, 1235 (11th Cir. 2003).

Plaintiff agreed to drop Defendant Anderson from the case. But Defendant 

Singer was well aware of numerous allegations of brutality against Officers Roundtree, 

Stephens, Ford, and Moore. Numerous MINS (Management Information 

Notification System) reports alleging misconduct by those officers, See Exhibit M,

MINS Reports, served as notice to Defendant Singer. Defendant Singer noted: “I 

see every MINS on my computer every day that goes out and I see every disposition 

that comes back from the IG's case, what they think about it.” Exhibit F,

Deposition of Defendant Steven Singer, p. 56. See Brown v. Crawford, 906 F.2d 667, 

671 (11th Cir. 1990). In this case, the MINS documents did not rule out the validity of 

Case 4:11-cv-00045-RH-CAS Document 52 Filed 02/17/12 Page 19 of 24
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the allegations. Yet the subject of most of these misconduct reports, Defendant 

Roundtree, was actually promoted from Sergeant to Captain during Defendant 

Singer’s tenure as Warden at Columbia C.I. If more were needed, Warden Singer was 

present days after the incident when Capt. Roundtree threatened Mr. McKenzie in 

referring to the incident. Exhibit A, Deposition of Darryll McKenzie, p. 174.

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. A professed failure to draw an inference of risk of 

harm may be disbelieved by a jury and a factfinder “may conclude that a prison 

official knew of a substantial risk from the very fact that the risk was obvious.” Id.

Defendants once again, as in Section B, make a claim for Qualified Immunity.

In Fennell v. Gilstrap, 559 F.3d 1212 (11th Cir. 2009), the Eleventh Circuit held that 

once a plaintiff makes a factual case for an excessive force violation, he need not go 

on to show the right violated was “clearly established. Specifically, this Court held:

The qualified immunity inquiry usually involves two prongs. First, a plaintiff 

must show that a constitutional or statutory right has been violated. Second, a 

plaintiff must show that the right violated was clearly established. Danley v. 

Allen, 540 F.3d 1298, 1306 (11th Cir.2008) (citations omitted). For claims of 

excessive force in violation of the Eighth or Fourteenth Amendments, 

however, a plaintiff can overcome a defense of qualified immunity by showing 

only the first prong, that his Eighth or Fourteenth *1217 Amendment rights 

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have been violated. Johnson v. Breeden, 280 F.3d 1308, 1321-22 (11th Cir.2002). 

We created this rule because, for an excessive-force violation of the Eighth or 

Fourteenth Amendments, “the subjective element required to establish it is so 

extreme that every conceivable set of circumstances in which this constitutional 

violation occurs is clearly established to be a violation of the Constitution....” 

Id. See also Danley, 540 F.3d at 1310 (conducting qualified immunity analysis for 

alleged Fourteenth Amendment violation by examining solely the first prong).

Fennell at 1216-17.

F. “No Failure to Treat Claim as to Defendant Singer”

Defendant Singer, as Warden of Columbia Correctional Institution, had the 

power of review over the medical program if it failed to address the needs of the 

inmates. As Defendant Singer stated in his deposition:

Q. Okay. And then the formal, the first formal grievance comes to you?

A. (Witness nodding head.)

Q. And then, of course, it goes to the Secretary after that.

A. But medical issues have priority and if it's a grievance of gain time, 

discipline, medical, then they can file a formal as a first step.

Q. Mm-hmm. But now what do you do as Warden when you get a grievance, 

you think it's a fair grievance, but it involves medical issues including medical 

expenditures, how do you do that? Are you locked into your area or can you 

--

A. I'm not locked in.

Q. Okay.

A. I'm responsible for every inmate and every staff member here.

Q. Okay.

A. And if something is brought to my attention that an inmate needs, then, and 

is not getting, then I will try to intercede. I'll find out why they are not 

getting it and it's usually a physician will say that, the chief health officer will 

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say he really doesn't need it. His condition doesn't warrant it. He's not giving 

you a true depiction of his condition. Similarly we have mother's 

complaining that my son is not getting medical needs or my husband is not 

getting their medical needs met and we evaluate that and respond back in 

writing what we found.

Q. But in the other case where despite what the health officer tells you you 

perceive that this is a real need that's not being met, how do you deal with 

that?

A. I tell them to do it.

Q. Okay. So you can tell the --

A. Absolutely.

Q. -- medical officer?

A. Absolutely. He works, the chief health officer works, I'm his supervisor.

Exhibit F, Deposition of Steven Singer, p. 26-27.

According to Section 33-602.210(20), Florida Administrative Code, “noticeable 

physical injuries” must be examined by a physician. The Section reads::

Any noticeable physical injury shall be examined by a physician and the 

physician shall prepare a report documenting the extent of the injury and the 

treatment prescribed. Such report shall be completed within 1 working day of 

the incident and shall be submitted to the warden for initial review.

Plaintiff had a noticeable physical injury – i.e., a gash above his eye. Yet there is 

no indication in the use of force records that he ever saw a physician about it and 

Warden Singer was required to review the paperwork and would have seen on its face 

that the rule was violated. Exhibit E, Inspector General and Use of Force Report

p. 29-30; Exhibit G, Section 33-602.210(20), Florida Administrative Code (2008).

G. “Plaintiff Cannot Recover Compensatory or Punitive Damages”

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Defendants allege that an inmate being slammed on the ground and sustaining 

a gash above his eye is de minimis and not a 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 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).

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Here, Plaintiff suffered a gash above his eye which bled freely according to 

Plaintiff and at least one witness. He also had a change to his neck where he had had 

surgery which resulted in a “popping” sound as he turned his neck which was deemed 

worthy at least of “observation” by Dr. Lord at RMC.

Based on the above argument and citations to authority, Plaintiff requests that 

the Defendants Motion for Summary Judgment be DENIED.

Respectfully Submitted,

s/James V. Cook______________________

JAMES V. COOK, ESQ.

Florida Bar Number 0966843

Law Office of James Cook

314 West Jefferson Street

Tallahassee, Florida 32301

(850) 222-8080; 561-0836 fax

cookjv@nettally.com

I CERTIFY the foregoing was filed electronically on 2/17/12 and that the person 

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

Lance Eric Neff

Office of the Attorney General

The Capitol, PL 01

Tallahassee, FL 32399-1050

Lance.neff@myfloridalegal.com

Mark Hiers

Office of the Attorney General

The Capitol, PL 01

Tallahassee, FL 32399-1050

Mark.Hiers@myfloridalegal.com

Ginger Barry Boyd

Broad and Cassel

200 Grand Boulevard, Suite 205A

Destin, Florida 32550

gbarry@broadandcassell.com

s/James Cook____________________

JAMES V. COOK

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