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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

PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT

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

moves this Court for Partial Summary Judgment on Defendants’ Affirmative 

Defenses and would further show:

1. Defendants have raised the following affirmative defenses:

a. Defendants assert the actions taken were taken in the course and 

scope of their duties and did not involve any violation of any 

constitutional right of Plaintiff.

b. Plaintiff failed to fully and properly exhaust his administrative 

remedies regarding Counts IV and V.

c. Plaintiff failed to state a claim against Defendants Singer and 

Anderson.

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d. Defendants Singer, Anderson, Ford, and Moore are entitled to 

qualified immunity.

e. Plaintiff failed to mitigate any damages he may have received from 

the approved use of force on 11/11/08.

f. Plaintiff’s claims regarding the 11/11/08 use of force outside the 

shower cell are barred by Heck v. Humphrey, 512 U.S. 477 (1994).

g. Defendants Norris, Swift, Givens, and Derringer were not present in 

H-dorm during any 11/11/08 use of force. As none of these 

defendants were present in H-dorm on 11-11-08, they should be 

dropped from this suit. Otherwise, a Rule 11 motion may be filed.

h. Defendants Moore and Ford assert self-defense and defense of 

another.

2. Plaintiff responds to the Affirmative Defenses as follows:

a. The statement that Defendants did not violate Plaintiff’s rights is not 

truly an affirmative defense. It is merely a denial of the Plaintiff’s 

allegations.

b. That Plaintiff sufficiently exhausted his administrative remedies has 

been resolved on Defendants’ Motion to Dismiss.

c. That Plaintiff sufficiently stated a claim against Defendants Singer 

and Anderson has been resolved on Defendants’ Motion to Dismiss.

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d. Qualified Immunity is not available to Defendants Singer, Anderson, 

Ford, or Moore. As to Defendants Ford and Moore, they are alleged 

to have inflicted excessive force on the Plaintiff. The threshold for 

such allegations is so high that, should the underlying constitutional 

violation be proven, qualified immunity would, by definition, be 

unavailable.

e. To show a failure to mitigate is the burden of the Defendants. There 

is no evidence Plaintiff failed to mitigate his damages. Plaintiff sought 

medical care for his injuries and was refused a requested medical 

examination by a doctor on the date of his injuries. In any case, it is 

the burden of the Defendants to show Plaintiff could have mitigated 

his damages without undue burden.

f. That the Heck v. Humphrey bar does not apply in this case has already 

been resolved on Defendants’ Motion to Dismiss.

g. The denial of some Defendants that they were present does not 

constitute an affirmative defense but is merely a denial of Plaintiff’s 

allegations as to them.

h. There are no facts that justify a conclusion that Officers Ford and 

Moore were acting in defense of themselves or others. As to the 

scene outside the shower, it is clear from the video recording that at 

the moment force was used, Plaintiff was trying to enter the shower 

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cell where he was ordered to go and that he was pulled back and onto 

the floor literally as he stepped into the cell. As to the subsequent 

uses of force, Defendants Ford and Moore deny they occurred and 

thus the defense is not available to them.

MEMORANDUM OF LAW

Plaintiff submits that each and every one of the Defendants’ Affirmative 

Defenses should be denied for the following reasons.

A. “Defendants Did Not Violate Plaintiff’s Rights”

A denial does not constitute an affirmative defense. The court found in Curry v. 

High Springs Family Practice Clinic & Diagnosis Ctr. Inc., 2008 WL 5157683 (N.D. Fla. 

Dec. 9, 2008), that “[a]n affirmative defense, by definition, states that even if all of the 

plaintiff's allegations are true, the defendant should still not be found liable. An 

affirmative defense cannot simply deny an element of the initial complaint.” Id. at *2. 

See also Goodbys Creek, LLC v. Arch Ins. Co., 2009 WL 1139572, *3 (M.D. Fl 2009) 

(“an affirmative defense [that] is a denial of the allegations...rather than an affirmative 

defense... is therefore legally insufficient.”)

B. “Plaintiff Failed To Exhaust Remedies”

The Plaintiff maintains, and the Court has agreed in its Order on Defendants’ 

Motion to Dismiss, Doc. 37, that the grievances filed exhausted the remedies available 

to the plaintiff. The Plaintiff did “comply with the applicable procedures established 

by the state...the only requirement established by the Department’s rules is that the 

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‘inmate shall ensure that the form is legible, that included facts are accurately stated, 

and that only one issue or complaint is addressed.’” Johnson v. Testman, 380 F.3d 691 

(2d Cir. 2004). In any case the Court has found, “On any reasonable view, Mr. 

McKenzie adequately exhausted his claim. He filed multiple grievances and appealed 

to the end of the line.” (Doc. 37, p.7).

C. “Plaintiff Fails to State a Claim against Singer and Anderson”

Again, denial that a plaintiff has stated a case is not an affirmative defense. In a 

case where defendants used the same language as that used by Defendants in this case 

to state an affirmative defense of “of failure to state a claim,” Gonzalez v. Spears 

Holdings, Inc., 2009 WL 2391233 (S.D. Fla. July 31, 2009), the court found that “the 

foregoing statement is not an affirmative defense. Rather, it is a denial, as it alleges 

only a defect in Plaintiff's prima facie case. See In re Rawson Food Service, Inc., 846 F.2d 

1343, 1349 (11th Cir.1988) (“A defense which points out a defect in the plaintiff's 

prima facie case is not an affirmative defense.”); Morrison v. Executive Aircraft Refinishing, 

Inc., 434 F. Supp. 2d 1314, 1318 (S.D. Fla. 2005) (“a defense which simply points out a 

defect or lack of evidence in a plaintiff's case is not an affirmative defense”). In any 

case, here the Court found the complaint stated a claim against the Defendants.

D. “Defendants Are Entitled To Qualified Immunity”

Qualified immunity is not applicable if the plaintiff’s allegations include a claim 

of a violation of a clearly established law. The court in Skrtich v. Thornton, 280 F.3d 

1295, 1301 (11th Cir. 2002) found that “a defense of qualified immunity is not 

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available in cases alleging excessive force in violation of the Eighth Amendment, 

because the use of force ‘maliciously and sadistically to cause harm’ is clearly 

established to be a violation of the Constitution by the Supreme Court decisions in 

Hudson and Whitley.” Id.; Bozeman ex rel. Estate of Haggard v. Orum, 302 F. Supp. 2d 1310, 

1313 (M.D. Ala. 2004) (“acting with this extreme intent against a convicted prisoner 

leaves no room for qualified immunity...”)

E. “Plaintiff Failed To Mitigate Damages”

Defendants have presented no evidence that Plaintiff failed to mitigate his 

damages. Plaintiff sought medical care for his injuries and was refused a requested 

medical examination by a doctor on the date of his injuries. In Florida, the doctrine 

does not require reduction of damages based on what “could have been avoided” 

through “Herculean efforts.” Rather, an injured party is accountable for “ameliorative 

actions” that could have been accomplished through “ordinary and reasonable care,” 

without requiring undue effort or expense. Sys. Components Corp. v. Florida Dept. of 

Transp., 14 So. 3d 967, 982 (Fla. 2009), citing Thompson v. Fla. Drum Co., 651 So.2d 180, 

182 (Fla. 1st DCA 1995) (“Extraordinary efforts on the part of a plaintiff to mitigate 

are not required.”), approved, 668 So.2d 192 (Fla.1996).

In any case, it is the burden of the Defendants to show that Plaintiff could have 

mitigated his damages “without undue risk, burden, or humiliation.” Air Caldonie Intl v. 

AAR Parts Trading Inc., 315 F.Supp.2d 1319, 1337 (S.D. Fla. 2004). That Defendants 

have not done and cannot do.

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F. “Plaintiff’s Claims Are Barred by Heck v. Humphrey”

Plaintiff’s claims are not barred by Heck v. Humphrey because the Disciplinary 

Report and the lawsuit’s claim are not mutually exclusive. The claim is not barred 

because “a judgment in favor” would not “necessarily imply the invalidity of his 

conviction or sentence...” Heck v. Humphrey, 512 U.S. 477, 487, 114 S. Ct. 2364, 2372, 

129 L. Ed. 2d 383 (1994). In any case, the Court has already found that “disobeying 

orders and being disorderly do not without more authorize correctional officers to 

beat an inmate until blood is flowing freely, nor to leave him in that condition. Mr. 

McKenzie’s claims thus are not wholly barred by Heck...” (Doc. 37, p. 3).

G. “Defendants Norris, Swift, Givens, and Derringer Were Not Present”

As noted previously, a denial does not constitute an affirmative defense. The 

court found in Curry v. High Springs Family Practice Clinic & Diagnosis Ctr. Inc., 2008 WL 

5157683 (N.D. Fla. Dec. 9, 2008), that “An affirmative defense, by definition, states 

that even if all of the plaintiff's allegations are true, the defendant should still not be 

found liable. An affirmative defense cannot simply deny an element of the initial 

complaint.” Id. at *2. See also Goodbys Creek, LLC v. Arch Ins. Co., 2009 WL 1139572,

*3 (M.D. Fl 2009) (“an affirmative defense [that] is a denial of the allegations...rather 

than an affirmative defense... is therefore legally insufficient.”)

H. “Defendants Moore and Ford Acted in Self-Defense”

The video evidence shows no precipitating action by Plaintiff from which the 

Defendants would need to defend themselves or others. Video evidence consists of 

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two video files submitted on disk with this Motion as Exhibit A. They are recordings 

from two different cameras, denominated “Ch05” and “Ch07.” These recordings 

show no violence or noncompliance by Plaintiff during his transport from his cell to 

the holding/shower cell.

The first of the files, denominated Ch.5, shows the escort of Plaintiff by 

Defendants Ford and Moore from the cell towards the holding/shower cell from the 

frontal angle beginning at the top left of the screen. The second of the files, 

denominated Ch. 7, shows the same scene from the opposite angle with the 

Defendants and Plaintiff moving from the bottom right of the screen. The video 

denominated Ch. 5 shows both Plaintiff and Defendants leaving the cell at the top left 

of the screen at 12:46:14. From that point the video shows the walk across the hall 

and a compliant McKenzie attempting to enter the shower cell and being brought to 

the floor from behind as he tries to enter the shower/holding cell. Video Ch. 7 shows 

this from the opposite direction. At timestamp 12:46:45, it shows Plaintiff attempting 

to enter the cell. The Ch. 7 video then shows Plaintiff being brought to the floor, an

action claimed by the defendants as having been taken in self-defense. The video 

shows no threat on the part of the plaintiff that would justify the take down or the 

subsequent use of chemicals as self-defense. See video stills attached as Exhibit B.

As to the subsequent uses of force complained of, Defendants deny having 

used force subsequent to the use of force on video and thus cannot claim to have 

acted in self-defense with regard to those actions.

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WHEREFORE, Plaintiff Moves this Honorable Court for its Order of Partial 

Summary Judgment as to the Affirmative Defenses.

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 1/27/12 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____________________

JAMES V. COOK

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Exhibit A

Fixed Wing Video Disc filed by 

mail under seal.

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Exhibit B

Video Stills filed by mail under 

seal.

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