WILLIAMS v. GONZALEZ

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
JERMAR D. WILLIAMS,
Plaintiff,
v. 	Case No. 3:25cv632/LAC/ZCB
M. GONZALEZ,
Defendant.
/
REPORT AND RECOMMENDATION
Plaintiff is a prisoner of the Florida Department of Corrections
(FDOC). He is proceeding pro se and in forma pauperis in this civil rights
action under 42 U.S.C. § 1983. (Docs. 4, 13). Defendant has filed a motion
to dismiss the second amended complaint in part. (Doc. 21). Specifically,
Defendant seeks dismissal of Plaintiff’s state negligence claim and his
request for declaratory relief. (Id.). Plaintiff has responded in opposition.
(Doc. 23). 	For the reasons below, dismissal of the negligence claim and
the request for declaratory relief is warranted.
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I. 	Background1
Plaintiff’s second amended complaint names Officer M. Gonzalez as
the sole Defendant. 	(Doc. 13 at 1-2).2 	Plaintiff alleges Defendant
Gonzalez used excessive force on April 30, 2024 by “brutally punching”
him with a closed fist “countless times” in his face. (Id. at 5). He alleges
Gonzalez did so “without need or provocation” and while Plaintiff was
fully restrained with handcuffs behind his back and leg restraints. (Id.).
Plaintiff alleges Gonzalez or another officer then grabbed Plaintiff’s head
and repeatedly pounded his face on the concrete ground. (Id.).
Plaintiff 	alleges 	Defendant 	Gonzalez 	charged 	him 	with 	two
disciplinary infractions, one for disobeying an order and the other for
attempted battery (for attempting to spit on him). (Id. at 6-7). According
to Plaintiff, Gonzalez knowingly falsified the charges. 	(Id. at 7). 	As a
result 	of 	the 	disciplinary 	charges, 	Plaintiff 	was 	placed 	on property
1 At the motion to dismiss stage, the Court accepts the allegations of the
operative 	complaint 	as 	true 	and 	construes 	them 	in 	the 	light 	most
favorable to him. See Gundy v. City of Jacksonville, Fla., 50 F.4th 60, 69
(11th Cir. 2022). The operative complaint in this case is Plaintiff’s second
amended complaint. (Docs. 13, 14).
2 The Court refers to the page numbers automatically assigned by the
Court’s electronic filing system.
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restriction for seventy-two hours and “management meal” for seven days.
(Id. at 8).
Plaintiff claims that Defendant Gonzalez’s conduct violated the
Eighth Amendment and constituted state torts of assault, battery, and
negligence. (Id. at 9-10). He seeks declaratory relief as well as monetary
damages for physical and emotional injuries. (Id. at 8-9, 11).
Defendant seeks dismissal of Plaintiff’s negligence claim on the
basis of immunity under Fla. Stat. § 768.28(9)(a). 	(Doc. 21 at 3-4).
Defendant also seeks dismissal of Plaintiff’s request for declaratory relief
because such relief is unavailable. 	(Id. at 4-5). 	Plaintiff opposes both
arguments. (Doc. 23).
II. 	Discussion
A. 	Dismissal 	of 	Plaintiff’s 	state 	negligence 	claim 	is
warranted.
Defendant 	argues 	he 	is 	statutorily 	immune 	from 	Plaintiff
negligence claim under Fla. Stat. § 768.28(9)(a). 	(Doc. 21 at 3-4).3 	That
statute provides that an FDOC officer cannot be sued for acts committed
3 Defendant does not argue statutory immunity with respect to Plaintiff’s
state tort claims of assault and battery.
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within the scope of his employment unless he “acted in bad faith or with
malicious 	purpose 	or 	in 	a 	manner 	exhibiting 	wanton 	and 	willful
disregard of human rights, safety, or property.” Fla. Stat. § 768.28(9)(a);
Fla. Highway Patrol v. Jackson, 288 So. 3d 1179, 1185 (Fla. 2020)
(holding that immunity under Fla. Stat. § 768.28(9) is both immunity
from liability and immunity from suit).
Plaintiff 	argues 	his 	negligence 	claim 	meets 	the 	exceptions 	to
§ 768.28 immunity. 	(Doc. 23 at 3-4). 	He argues Defendant Gonzalez
acted “in bad faith with malicious purpose or in a manner exhibiting
wanton and willful disregard of human rights or safety.” (Id. at 3, 10).
“The Florida courts have consistently and unambiguously held that
‘it is not possible to have a cause of action for negligent use of excessive
force because there is no such thing as the negligent commission of an
intentional tort.’” 	Secondo v. Campbell, 327 F. App’x 126, 131 (11th Cir.
2009) (per curiam) (quoting City of Miami v. Sanders, 672 So. 2d 46, 48
(Fla. 3d DCA 1996)); see also Lewis v. City of West Palm Beach, Fla., 561
F.3d 	1288, 	1294 	(11th 	Cir. 	2009) 	(affirming 	dismissal 	of 	plaintiff’s
wrongful death claim based on allegation that officers’ use of force was
negligent because “it is inapposite to allege the negligent commission of
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an intentional tort, such as the use of excessive force.”). In other words,
“[a] claim for negligence cannot be premised solely on a defendant’s
alleged commission of an intentional tort.” 	Brown v. J.D. Penney Corp.,
521 F. App’x 922, 924 (11th Cir. 2013) (citing Sanders, 672 So. 2d at 48).4
Here, 	to the extent 	Plaintiff’s 	negligence 	claim 	is 	based upon
Defendant 	Gonzalez’s 	negligent 	use 	of 	excessive 	force, 	Defendant’s
actions were the intentional use of excessive force, which cannot support
a negligence claim. 	See Lewis, 561 F.3d at 1294; Secondo, 327 F. App’x
at 131.5
4 “[A] separate negligence claim based upon a distinct act of negligence
may be brought … in conjunction with a claim for excessive use of force,
... [but] the negligence component must pertain to something other than
the actual application of force….” 	Secondo, 327 F. App’x at 131 (quoting
Sanders, 672 So. 2d at 48). 	For example, “a cause of action for the
negligent handling of a firearm and the negligent decision to use a
firearm separate and distinct from an excessive force claim” is recognized
under Florida law. 	Lewis v. City of St. Petersburg, 260 F.3d 1260, 1263
(11th Cir. 2001) (citation omitted); see also Wyatt v. City of Jacksonville,
No. 3:08-cv-264-J-32TEM, 2008 WL 2916358, at *1 (M.D. Fla. July 29,
2008) (finding that the plaintiff adequately alleged a cause of action for
negligent handling of a police dog separate from excessive force claim).
5 See also Reed v. Waters, No. 3:24cv463, 2024 WL 4529253, at *10-11
(M.D. Fla. Oct. 18, 2024) (dismissing negligence claims against officers
for conducting strip search because officers were entitled to immunity
under § 768.28(9)(a) to the extent plaintiff alleged officers were merely
negligent during strip search, and to the extent plaintiff alleged the
officer acted with a malicious purpose or a wanton and willful disregard
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Plaintiff’s complaint also alleges Defendant Gonzalez knowingly
falsified two disciplinary charges, which resulted in Plaintiff’s placement
on property restriction for seventy-two hours and “meal management” for
seven days. (Doc. 13 at 6-8). This claim is barred by the doctrine of issue
preclusion. In another lawsuit in this Court, Plaintiff previously litigated
the issue of whether a negligence claim concerning Defendant Gonzalez’s
for 	human 	rights, 	their 	actions 	were 	intentional 	torts, 	which 	were
mutually exclusive of negligence claims; in either case, the negligence
claims were subject to dismissal); Shadmani v. Barnes, No. 3:22cv1008,
2023 WL 2664180, at *3 (M.D. Fla. Mar. 28, 2023) (dismissing negligence
claim against officers because plaintiff alleged officers used excessive
force); Bowman v. Hunter, No. 3:22cv545, 2023 WL 2561335, at *8-9
(M.D. Fla. Mar. 17, 2023) (dismissing negligence claim against deputy for
commanding dog to attack plaintiff because deputy was entitled to
immunity under § 768.28(9)(a) to the extent plaintiff alleged deputy was
merely negligent, and allegations that deputy acted with a malicious
purpose or a wanton and willful disregard for human rights described
intentional conduct and thus could not support a negligence claim); Zonja
v. Blake, No. 8:21cv2128, 2023 WL 130753, at *10 (M.D. Fla. Jan. 9, 2023)
(dismissing negligence claim because the factual allegations underlying
that claim were not separate and distinct from plaintiff’s excessive force
claim); Sherman v. Blair, No. 5:15cv36, 2015 WL 9685940, at *9 (M.D.
Fla. Dec. 18, 2015), adopted 2016 WL 99570, at *1 (M.D. Fla. Jan. 8, 2016)
(dismissing claims for negligent infliction of excessive force and battery
because Florida does not recognize such claims); Asia v. City of Miami
Gardens, 2014 WL 12496894, at *5 (S.D. Fla. Aug. 15, 2014) (dismissing
claim for negligent use of excessive force because the theory fails as a
matter of law).
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falsification 	of 	disciplinary 	charges 	was 	precluded 	by 	Fla. 	Stat.
§ 768.28(9)(a), 	Williams v. Gonzalez, et al., No. 3:24cv355/LAC/HTC
(N.D. Fla.) (Williams I). 	See Williams v. Gonzalez, 2025 WL 715755, at
*4 (N.D. Fla. Feb. 20, 2025), adopted 2025 WL 711532, at *1 (N.D. Fla.
Mar. 5, 2025).
Issue preclusion is established when: 	“(1) the issue at stake is
identical to the one involved in the prior litigation; (2) the issue was
actually litigated in the prior litigation; (3) the determination of the issue
must have been a critical and necessary part of the judgment in the prior
litigation; and (4) the party against whom [issue preclusion] is asserted
must have had a full and fair opportunity to litigate the issue in the prior
litigation.” McCulley v. Bank of Am., N.A., 605 F. App’x 875, 877-78 (11th
Cir. 2015). All of those prongs are satisfied here.
Prong one is easily satisfied. The issue in the present case (whether
Plaintiff’s negligence claim against Gonzalez for falsifying disciplinary
reports is precluded by Florida’s immunity statute) is the same issue at
stake in Williams I. 	See Williams, 2025 W 715755, at *4.
As for the second prong, the issue was actually litigated. 	In
Williams I, Defendant Gonzalez filed a motion to arguing that Plaintiff’s
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negligence claim was precluded by Fla. Stat. § 768.28(9)(a). (Williams I,
Doc. 37 at 9-10). Plaintiff responded in opposition. (Williams I, Doc. 42).
The Court agreed with Defendant’s argument. 	Williams v. Gonzalez,
2025 WL 715755, at *4 (N.D. Fla. Feb. 20, 2025), adopted 2025 WL
711532, at *1 (N.D. Fla. Mar. 5, 2025). The issue was “actually litigated”
because 	it 	was 	properly 	raised 	in 	Defendant 	Gonzalez’s 	motion 	to
dismiss, submitted for determination, and determined by the Court. 	See
Comty. State Bank v. Strong, 651 F.3d 1241, 1267-68 (11th Cir. 2011)
(explaining that an issue is considered “actually litigated” when the
“issue is properly raised, by the pleadings or otherwise, and is submitted
for determination, and is determined.”) (cleaned up).
The 	issue 	was 	also 	“necessarily 	decided.” 	Id. 	at 	1268. 	In
adjudicating Williams I, the Court’s decision as to whether Plaintiff’s
negligence claim was precluded by Fla. Stat. § 768.28(9)(a) was not
incidental or mere dicta. The Court, in finding that Defendant Gonzalez
was entitled to dismissal of Plaintiff’s negligence claim, found that the
negligence claim was precluded by Florida’s immunity statute. Williams,
2025 WL 715755, at *4.
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As for the fourth and final prong, Plaintiff had a full and fair
opportunity to litigate the immunity issue. 	Plaintiff filed a response in
opposition to Defendant Gonzalez’s motion to dismiss and objected to the
report 	and 	recommendation 	that 	recommended 	dismissal 	of 	the
negligence claim. 	(Williams I, Docs. 42, 44). Plaintiff’s arguments were
not persuasive. 	(Id., Docs. 43, 45). 	Because all four prongs of issue
preclusion have been met, the doctrine prevents Plaintiff from pursuing
in this case the same issue regarding whether Defendant Gonzalez is
entitled to immunity from suit for Plaintiff’s negligence claim based on
Gonzalez’s 	falsifying 	two 	disciplinary 	charges 	which 	resulted 	in
Plaintiff’s placement on property restriction for seventy-two hours and
“meal management” for seven days.
B. 	Dismissal of Plaintiff’s request for declaratory relief is
warranted because such relief unavailable as a matter
of law.
Next, Defendant argues that Plaintiff’s request for declaratory
relief should be dismissed. (Doc. 21 at 4-5). Defendant argues such relief
is unavailable as a matter of law because Plaintiff’s request is based
purely on past conduct. (Id.).
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A court only may issue a declaratory judgment only in a case of
“actual controversy.” 	28 U.S.C. § 2201. 	This means a plaintiff must
allege facts demonstrating that the harm caused by the defendants is
ongoing or will be repeated in the future. Emory v. Peeler, 756 F.2d 1547,
1552 (11th Cir. 1985). 	A declaration that only past conduct violated a
plaintiff’s constitutional rights would be “nothing more than a gratuitous
comment without any force or effect.” Id. (cleaned up); see also Malowney
v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1348 (11th Cir. 1999)
(“Injury in the past … does not support a finding of an Article III case or
controversy when the only relief sought is a declaratory judgment.”)
(citation omitted).
Here, 	Plaintiff’s 	request 	for 	declaratory 	relief 	is 	based 	on
Defendant’s past conduct―his use of force on April 30, 2024 at Santa Rosa
C.I. 	(Doc. 13 at 5-8). 	Plaintiff was not housed at Santa Rosa C.I. when
he filed this § 1983 action; instead, he was housed at Florida State
Prison, which is where he remains. 	(Doc. 1 at 1-2, 16, 19; Doc. 23).
Plaintiff does not allege Defendant Gonzalez is employed at Florida State
Prison or that he (Plaintiff) will soon be transferred back to Santa Rosa
C.I. 	While it is possible Plaintiff may once again be incarcerated at a
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prison 	where 	Defendant 	works, 	such 	speculation 	is 	insufficient 	to
establish a basis for injunctive relief. 	See City of Los Angeles v. Lyons,
461 U.S. 95, 105 (1983) (explaining that speculation is insufficient to
establish 	the 	existence 	of 	a 	present, 	live 	controversy 	required 	for
injunctive relief).
For these reasons, Plaintiff’s request for declaratory relief should
be dismissed. 	See Thorpe v. Dumas, 788 F. App’x 644, 649 	(11th Cir.
2019) (affirming dismissal of plaintiff’s claims for declaratory relief
where plaintiff was attempting to adjudicate defendants’ past conduct
and did not claim any ongoing violation of his constitutional rights); see
also Holt v. Crist, 233 F. App’x 900, 903-04 (11th Cir. 2007) (affirming
dismissal of plaintiff’s claims for declaratory and injunctive relief where
plaintiff’s factual allegations related to past conduct, and he made no
allegation of a continuing injury or a showing of a substantial likelihood
of irreparable injury which was neither remote nor speculative but actual
and imminent).
Accordingly, it is respectfully RECOMMENDED that:
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1. 	Defendant’s motion to dismiss (Doc. 21) be GRANTED and
Plaintiff’s 	negligence 	claim 	and 	request 	for 	declaratory 	relief 	be
DISMISSED.
2. 	This case be recommitted to the magistrate judge for further
proceedings 	on 	Plaintiff’s 	claims 	for 	monetary 	damages 	against
Defendant for excessive force under the Eighth Amendment and state
torts claims of assault and battery.
At Pensacola, Florida, this 22nd day of December 2025.
/s/ Zachary C. Bolitho
Zachary C. Bolitho
United States Magistrate Judge
Notice to the Parties
Objections to these proposed findings and recommendations must be
filed within fourteen days of the date of the Report and Recommendation.
Any different deadline that may appear on the electronic docket is for the
Court’s internal use only and does not control. 	An objecting party must
serve a copy of the objections on all other parties. 	A party who fails to
object to the magistrate judge’s findings or recommendations contained
in a report and recommendation waives the right to challenge on appeal
the 	district 	court’s 	order 	based 	on 	unobjected-to 	factual 	and 	legal
conclusions. 	See 11th Cir. Rule 3-1; 28 U.S.C. § 636.
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