4:23-cv-00184•HAYES v. BENNETT et al
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Page 1 of 38 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION JEROME HAYES, D.O.C. #124113, Plaintiff, vs. Case No. 4:23cv184-MW-MAF SERGEANT BENNETT, LIEUTENANT LURRY, Defendants. _________________________/ SECOND REPORT AND RECOMMENDATION1 This is a prisoner civil rights action. Pending are two dispositive motions filed by the Defendants - (1) a motion for judgment on the pleadings and (2) a motion for summary judgment. ECF Nos. 64, 72. Plaintiff has responded to both motions. ECF Nos. 74, 80. Procedurally, Defendants’ motion to dismiss Plaintiff’s second amended complaint, ECF No. 35, was granted, ECF Nos. 44 and 46, but 1 The first Report and Recommendation, ECF No. 44, recommended granting Defendants’ motion to dismiss, ECF No. 35, but permitting Plaintiff to file a second amended complaint. The recommendation was accepted and adopted. ECF No. 46. Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 1 of 38
Page 2 of 38 Plaintiff was permitted to file an amended complaint. ECF Nos. 46-47. Ultimately, the pro se Plaintiff filed a sixth amended complaint, ECF No. 60, alleging that during a cell extraction on February 22, 2022, Defendants Bennett and Lurry used excessive and unnecessary force. Plaintiff also complained that Defendant Lurry failed to protect him and was deliberately indifferent to his serious medical needs following the use of force. Id. at 5- 8. Defendants filed an answer, ECF No. 62, and an Initial Scheduling Order was entered on January 8, 2025. ECF No. 63. The discovery period closed on June 13, 2025. ECF No. 70. While discovery was still proceeding, Defendants filed the motion for judgment on the pleadings in part. ECF No. 64. That motion raised three arguments: (1) the deliberate indifference claim should be dismissed for failure to state a claim; (2) the request for compensatory damages should be dismissed as barred by 42 U.S.C. § 1997e(e); and (3) Plaintiff is not entitled to punitive damages. ECF No. 64 at 5, 7, and 11. At the conclusion of the discovery period, Defendants filed a motion for summary judgment, ECF No. 72, supported by numerous exhibits and a separately filed video under seal. ECF Nos. 73, 76, and 79. Defendants argue, among other things, that the undisputed evidence shows the force Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 2 of 38
Page 3 of 38 used on Plaintiff was reasonable, that Defendant Lurry did not fail to intervene to protect Plaintiff, and Defendants are entitled to qualified immunity. Id. at 1-2. Defendants also argued for the second time that they were not deliberately indifferent and Plaintiff is not entitled to compensatory damages. Id. Plaintiff was advised of his obligation to respond to both motions. ECF Nos. 65 and 76. Plaintiff’s response to the motion for judgment on the pleadings, ECF No. 74, was not timely filed but has been considered.2 Likewise, Plaintiff’s response to the summary judgment motion, ECF No. 80, was not timely filed either. Plaintiff had been given until August 18, 2025, to respond, see ECF No. 78, but his response was not mailed until October 10, 2025. 3 Although late, Plaintiff’s response has been considered along with Defendants’ reply, ECF No. 82, which was filed on October 24, 2025. 2 Plaintiff was granted an extension of time and directed to respond by June 23, 2025. ECF Nos. 70-71. His response was not given to prison officials to mail for him until June 30, 2025. ECF No. 74 at 4. 3 Plaintiff’s explanation for the delay, ECF No. 80-1, has been reviewed and accepted as good cause to consider his belated response. Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 3 of 38
Page 4 of 38 I. Motion for Judgment on the Pleadings, ECF No. 64 A. Standard of Review “Judgment on the pleadings is appropriate where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law.” Perez v. Wells Fargo N.A., 774 F.3d 1329, 1335 (11th Cir. 2014). In ruling on a motion for judgment on the pleadings, the Court must “accept as true all material facts alleged in the non-moving party's pleading,” and those facts are to be viewed “in the light most favorable to the non-moving party.” Perez, 774 F.3d at 1335 (citing Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998)). “A motion for judgment on the pleadings is governed by the same standard as a motion to dismiss under Rule 12(b)(6).” Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1350 (11th Cir. 2018) (quoted in Samara v. Taylor, 38 F.4th 141, 149 (11th Cir. 2022). As noted above, three defenses are presented in this motion: (1) Plaintiff’s deliberate indifference claim is insufficient and fails to state a claim; (2) compensatory damages are barred by 42 U.S.C. § 1997e(e); and (3) Plaintiff is not entitled to punitive damages. ECF No. 64 at 5, 7, and 11. Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 4 of 38
Page 5 of 38 B. Deliberate Indifference Prison officials are required by the Eighth Amendment to provide medical care to those inmates incarcerated in their care. An official’s deliberate indifference to a prisoner’s medical needs violates the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251 (1976); McElligott v. Foley, 182 F.3d 1248, 1254 (11th Cir. 1999). To state a claim for deliberate indifference under the Eighth Amendment, a plaintiff must “must show: (1) a serious medical need; (2) the defendants’ deliberate indifference to that need; and (3) causation between that indifference and the plaintiff’s injury.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306-07 (11th Cir. 2009) (quoted in Brown v. Doe, No. 24-10550, 2025 WL 2911038, at *3 (11th Cir. Oct. 14, 2025). Here, Defendants argue that Plaintiff’s allegations fail to show they were deliberately indifferent. ECF No. 64 at 6. Plaintiff’s response to the motion for judgment on the pleadings did not address this issue. ECF No. 74. The operative complaint alleged that after the use of force, Defendants violated “rules of policy and procedure” by not giving him a “full body scan with camera used for cell extraction so that the camera could Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 5 of 38
Page 6 of 38 detect any and all transparent visible injuries.” ECF No. 60 at 6. 4 Plaintiff did not allege that he requested medical care from the Defendants nor did he claim Defendants refused such a request or otherwise prevented him from receiving medical care. Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985) (refusal to take steps to see that prisoner is provided medical care known to be necessary is deliberate indifference). Plaintiff also did not allege that Defendants delayed his receipt of medical care. Goebert v. Lee Cnty., 510 F.3d 1312, 1330 (11th Cir. 2007) (noting “an official acts with deliberate indifference when he intentionally delays providing an inmate with access to medical treatment”). The simple fact that Defendants did not comply with an administrative rule or procedure which required a “body scan” or to use a video camera to record any visible 4 Plaintiff does not cite or reference the rule, policy, or procedure that allegedly requires a “body scan” after a cell extraction. The Court’s independent research did not locate a rule that requires such a “scan,” but Administrative Rule 33-602.210(4) requires video recording of a use of force incident and specifies that the recording must continue through “[a]ny medical examination performed after the use of force.” FLA . ADMIN . CODE R. 33-602.210(4)(c)3-4. The rule states: “Immediately prior to securing the inmate in a cell or a vehicle for transportation, the officer in charge shall ensure the camera operator records the inmate's anterior and posterior body for the presence or absence of visible injuries.” FLA . ADMIN . CODE R. 33-602.210(4)(c)4.b. Presumably, that requirement is the basis for Plaintiff’s assertion of a “body scan.” Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 6 of 38
Page 7 of 38 injuries is insufficient to state a claim for deliberate indifference to Plaintiff’s medical needs. 5 Additionally, Plaintiff acknowledged in his response to Defendants’ motion that “following the cell extraction, Plaintiff was taken to the prison medical emergency room” where he complained about his injuries. ECF No. 74 at 1. He said that “he was denied medical care by staff members,” id., and at a later point Plaintiff said he “requested Medical to provide him the care he required and they were completely indifferent to his needs.” Id. at 3. Those statements support the conclusion reached above that the named Defendants were not deliberately indifferent to Plaintiff’s needs and did not prevent Plaintiff from receiving medical care. Furthermore, Plaintiff said that on the following day, he was seen in mental health. Id. at 1. His mental health doctor expressed concern about Plaintiff’s eye which he said “was extremely swollen, bruised and slightly bleeding.” Id. at 1-2. After that visit, Plaintiff said he was then “seen again by medical staff.” Id. Those statements demonstrate that Plaintiff did, in 5 In addition to the fact that Plaintiff’s factual allegations are insufficient, Defendants submitted a video recording of the use of force. ECF No. 72. That video will be examined in the summary judgment portion of this Report and Recommendation and includes review of the post-use-of-force procedures. Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 7 of 38
Page 8 of 38 fact, receive care, although Plaintiff is not, at this point, satisfied with the medical care he received. The Defendants’ motion for judgment on the pleadings should be granted as to Plaintiff’s Eighth Amendment claim for deliberate indifference. C. Compensatory Damages Defendants once again argue 6 that Plaintiff’s request for compensatory damages is barred by 42 U.S.C. § 1997e. ECF No. 64 at 7. Defendants contend that Plaintiff’s injuries are de minimis and must be stricken. Id. at 7-10. In response, Plaintiff says that his injuries were not de minimis and he claims that fact is demonstrated because he “did in fact go to a prison medical emergency room” and his injuries were “documented” in video recordings. 7 ECF No. 74 at 2. Plaintiff alleged that as a result of the use of force, he suffered a “closed black eye” injury in his left eye. ECF No. 60 at 5. He said that his 6 This argument was previously raised in Defendants’ motion to dismiss in part. ECF No. 54. The motion to dismiss was ultimately denied as moot and Plaintiff was permitted to file a sixth amended complaint. ECF No. 59. After Plaintiff did so, see ECF No. 60, Defendants filed an answer, ECF No. 62, instead of another motion to dismiss. 7 Plaintiff’s response also revels that Defendants did, in fact, have his injuries recorded and, therefore, they did not fail to comply with Rule 33-602.210(4). Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 8 of 38
Page 9 of 38 eye had redness and blood clotting, and that he also had a “bloody busted lip.” Id. at 5-6. As part of the Prison Litigation Reform Act [PLRA], Congress enacted 42 U.S.C. § 1997e(e) which, as amended in 2013, states: No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act (as defined in section 2246 of Title 18). 42 U.S.C. § 1997e(e). “An ‘injury’ is ‘any harm, damage, wrong, or injustice.’” Injury, Garner's Dictionary of Legal Usage (quoted in Hoever v. Marks, 993 F.3d 1353, 1357 (11th Cir. 2021)). As explained by the Eleventh Circuit Court of Appeals, “the text of § 1997e(e) bars only requests for compensatory damages stemming from purely mental or emotional harms.” Hoever, 993 F.3d at 1358 (holding that § 1997e(e) does not bar punitive damages). Put another way, “§ 1997e(e) limits a prisoner only from recovering damages that redress, or compensate him for, a mental or emotional injury, when no physical injury is shown.” 993 F.3d at 1360; see also Brooks v. Warden, 800 F.3d 1295, 1298 (11th Cir. 2015) (holding that because Brooks did not allege “any physical injury resulting from his hospital stay, under the Prison Litigation Reform Act, 42 U.S.C. § Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 9 of 38
Page 10 of 38 1997e(e), he” could not recover compensatory damages). In this case, however, Plaintiff alleged physical injury. Thus, he is not seeking monetary damages as relief solely for mental or emotional harm. Even so, and even though the statute does not specifically address the severity of physical injury, the Eleventh Circuit has held that “to avoid dismissal under § 1997e(e),” a prisoner must include “allegations of physical injuries that are greater than de minimis.” Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1312-13 (11th Cir. 2002) (quoted in Mann v. McNeil, 360 F. App’x 31, 32 (11th Cir. 2010)); see also Furman v. Warden, 827 F. App’x 927, 933 (11th Cir. 2020)). The Eleventh Circuit has explained that although “section 1997e(e) does not define physical injury, we have concluded that, to satisfy the statute ‘the physical injury must be more than de minimis, but need not be significant.’” Quinlan v. Pers. Transp. Servs. Co., 329 F. App’x 246, 249 (11th Cir. 2009) (quoting 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 ) (concluding that a “dry shave” was not the kind of physical injury cognizable under section 1997e(e)). Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 10 of 38
Page 11 of 38 In making that pronouncement in Quinlan, 329 F. App’x at 249, the Eleventh Circuit cited to Nolin v. Isbell, 207 F.3d 1253, 1258 n.4 (11th Cir. 2000), a case which stands for “the principle that the application of de minimis force, without more, will not support a claim for excessive force in violation of the Fourth Amendment.” Nolin, 207 F.3d at 1257. That case did not, however, involve § 1997e(e). Thus, it seems that case law has conflated § 1997e(e)’s bar with the standard for an excessive force claim - that “[a]n inmate who complains of a ‘push or shove’ that causes no discernible injury almost certainly fails to state a valid excessive force claim.” Wilkins v. Gaddy, 559 U.S. 34, 38, 130 S. Ct. 1175, 1178, 175 L. Ed. 2d 995 (2010) (citations omitted). Doing so is unnecessary because the “de minimis” standard “generally aligns with the ‘physical injury analysis’ used in Eighth Amendment cases and must exceed a ‘routine discomfort’ threshold.” Glick v. Corbin, No. 1:22-CV-328-AW-MAF, 2024 WL 4359920, at *10 (N.D. Fla. Aug. 7, 2024), report and recommendation adopted, No. 1:22-CV-328-AW-MAF, 2024 WL 4349998 (N.D. Fla. Sept. 30, 2024) (relying on Furman, 827 F. App’x at 933). Without some level of injury which is more than de minimis, an excessive force will necessarily fail. Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 11 of 38
Page 12 of 38 Nevertheless, this Court is bound by the Eleventh Circuit’s pronouncement that a prisoner’s alleged “physical injury must be more than de minimis, but need not be significant” to avoid the § 1997e(e) bar. 827 F. App’x at 933 (explaining that the de minimis standard is “appropriate in the light of the PLRA's ‘essential purpose’ -- ‘to curtail frivolous and abusive prisoner litigation’ -- and of ‘our basic understanding that ‘routine discomfort is part of the penalty that criminal offenders pay for their offenses against society.’”). Here, Plaintiff's injuries are not more than “de minimis.” His black eye and bloody lip were temporary issues that did not require immediate medical attention. See Tate v. Rockford, 497 F. App'x 921, 925 (11th Cir. 2012) (holding that a laceration on the inmate’s “forehead, several small abrasions and cuts, and a swollen right eye” were de minimis injuries); Parker v. Dubose, No. 3:12cv204-MCR-CJK, 2013 WL 4735173, at *2 (N.D. Fla. Sept. 3, 2013) (“Plaintiff’s alleged black eye, bloody lip, scrapes, abrasion and ‘backpains’ do not amount to more than de minimis physical injury and are not sufficient to meet the physical injury requirement of § 1997e(e)”). Plaintiff has acknowledged that he was seen in the prison’s emergency room, and no treatment was provided. Indeed, outside of the prison environment, there would be no need for medical treatment Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 12 of 38
Page 13 of 38 for a bloody lip or black eye. Those temporary discomforts heal without the need for medical care. Although Plaintiff has argued in his response that he has had to wear eye glasses and he contends he has “been diagnosed with permanent eye damage,” the pleadings did not present such injury. ECF No. 74 at 2. Furthermore, Plaintiff’s conclusory assertion of his injury is not supported by medical evidence. Thus, Defendants’ motion for judgment on the pleadings, ECF No. 64, should be granted because Plaintiff's request for compensatory damages is barred by 42 U.S.C. § 1997e(e). 8 D. Punitive Damages Defendants also seek to dismiss Plaintiff’s request for punitive damages as statutorily barred by 18 U.S.C. § 3626(a)(1)(A). 9 Id. at 11. 8 Because Plaintiff is pro se, he is informed that this recommendation does not eliminate the possibility of nominal damages and does not dismiss his Eighth Amendment claim for the use of excessive and unnecessary force. 9 The statute provides: Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 13 of 38
Page 14 of 38 They argue that punitive damages “are never necessary to correct a violation of a federal right,” and “could not satisfy the additional, stringent limitations imposed by the PLRA . . . .” Id. at 12. Plaintiff did not address this issue in his response. ECF No. 74. In presenting this argument, Defendants acknowledge that the Eleventh Circuit held in Hoever v. Marks, 993 F.3d 1353, 1356 (11th Cir. 2021), that § 1997e(e) “permits claims for punitive damages without a showing of physical injury.” Defendants also acknowledge that the Court in Hoever did not address whether a claim for punitive damages was barred by 18 U.S.C. § 3626(a)(1)(A). ECF No. 64 at 13. Indeed, the Court “decline[d] the government’s invitation to address the availability of punitive damages in prison condition cases under 18 U.S.C. § 3626, as it [fell] outside the scope of the en banc briefing question posed to the parties.” 993 F.3d at 1364, n.5. In short, Defendants argue that § 3626(a)(1)(A) system caused by the relief. 18 U.S.C. § 3626(a)(1)(A). Punitive damages are included within the definition of “prospective relief” used in the statute. See Johnson v. Breeden, 280 F.3d 1308, 1325 (11th Cir. 2002), abrogated on other grounds by Kingsley v. Hendrickson, 576 U.S. 389, 395 (2015). Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 14 of 38
Page 15 of 38 bars Plaintiff’s request for punitive damages, but cite to no controlling precedent. In fact, “section 3626 does not imposes a categorical prohibition on an award of punitive damages.” Hart v. Lt. Hardbower, No. 5:23cv75-TKW- MJF, 2024 WL 4497117, at *3 (N.D. Fla. Sept. 17, 2024), report and recommendation adopted sub nom. Hart v. Hardbower, No. 5:23-CV-75- TKW-MJF, 2024 WL 4495507 (N.D. Fla. Oct. 15, 2024) (citing Benton v. Rousseau, 940 F. Supp. 2d 1370, 1379–80 (M.D. Fla. 2013) (finding the prisoner was entitled to $15,000 in punitive damages for violations of his First and Fourteenth Amendment rights). The current law of the Eleventh Circuit is that “18 U.S.C. § 3626 does not categorically prohibit a prisoner from recovering punitive damages in a case of this kind.” Walker v. Noles, No. 4:24cv289-RH-MAF, 2025 WL 2677113, at *1 (N.D. Fla. Sept. 18, 2025); see also Dicks v. Bearden, No. 4:24cv495-RH-MAF, 2025 WL 2672562, at *2 (N.D. Fla. Sept. 18, 2025) (noting the Eleventh Circuit “did not say the statute categorically prohibited punitive damages”); Andrews v. Ciccone, No. 3:23-CV-88-MMH-SJH, 2025 WL 2508878, at *14 (M.D. Fla. Sept. 2, 2025) (holding “that § 3626 does not preclude a request for punitive damages” and refusing to “disregard the Eleventh Circuit's Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 15 of 38
Page 16 of 38 long-standing recognition that punitive damages are available in prisoner civil rights actions”); Holland v. Mundella, No. 2:23-CV-399-JES-NPM, 2025 WL 621882, at *3 (M.D. Fla. Feb. 26, 2025) (denying motion to dismiss the request for punitive damages because “the Eleventh Circuit has consistently held that the PLRA allows for punitive damages to punish defendants for willful or malicious conduct”). Despite those rulings, Defendants argue that “this Court cannot find that punitive damages are necessary to correct a violation of Plaintiff’s rights or are the least intrusive means necessary to do so,” and thus, they contend “punitive damages are barred by section 3626(a)(1)(A).” ECF No. 64 at 14. Yet the Eleventh Circuit has not so held. Indeed, the Court has remanded for consideration of the punitive damage factors mandated by § 3626(a)(1)(A). See Johnson v. Breeden, 280 F.3d 1308, 1325 (11th Cir. 2002); Hoever v. Marks, 993 F.3d 1353, 1364 (11th Cir. 2021) (“On remand, Mr. Hoever should be given an opportunity to obtain punitive damages too”). Because the Eleventh Circuit has not held that the statute bars a prisoner’s request for punitive damages, this aspect of the motion for judgment on the pleadings, ECF No. 64, should be denied. Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 16 of 38
Page 17 of 38 II. Motion for Summary Judgment, ECF No. 72 Defendants move for summary judgment based on five arguments. ECF No. 72 at 1-2. Only three of those arguments need be addressed because the recommendation for adjudicating the motion for judgment on the pleading, ECF No. 64, was to dismiss Plaintiff’s deliberate indifference claim and find that § 1997e(e) bars an award of compensatory damages. Thus, ruling is limited to Defendants’ three reasons summary judgment should be granted in their favor: (1) Defendant Bennett’s use of force was reasonable; (2) Defendant Lurry did not fail to intervene to protect Plaintiff from an unreasonable use of force; and (3) Defendants are entitled to qualified immunity. ECF No. 72 at 1. A. Standard of Review “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). Thus, summary judgment is proper “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 17 of 38
Page 18 of 38 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). As noted above, the parties were provided adequate time to conduct discovery. The “party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323, 106 S. Ct. at 2553. The non-moving party must then show10 though affidavits or other Rule 56 evidence “that there is a genuine issue for trial” or “an absence of evidence to support the nonmoving party’s case.” Id. at 325, 106 S. Ct. at 2554; Beard v. Banks, 548 U.S. 521, 529, 126 S. Ct. 2572, 2578, 165 L. Ed. 2d 697 (2006). 10 "Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.' " Owen v. Wille, 117 F.3d 1235, 1236 (11th Cir. 1997), cert. denied 522 U.S. 1126 (1998) (quoting Celotex, 477 U.S. at 324, 106 S. Ct. at 2553) (quoting Fed. R. Civ. P. 56(c), (e))). The nonmoving party need not produce evidence in a form that would be admissible as Rule 56(e) permits opposition to a summary judgment motion by any of the kinds of evidentiary materials listed in Rule 56(c). Owen, 117 F.3d at 1236; Celotex, 477 U.S. at 324, 106 S. Ct. at 2553. Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 18 of 38
Page 19 of 38 An issue of fact is “material” if it could affect the outcome of the case. Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256, 1259 (11th Cir. 2004) (citations omitted). Additionally, “the issue of fact must be ‘genuine’” and the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (other citations omitted). “The mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (quoting Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000)). All reasonable inferences must be resolved in the light most favorable to the nonmoving party, Sconiers v. Lockhart, 946 F.3d 1256, 1262-63 (11th Cir. 2020), and the Court must decide “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Hickson Corp., 357 F.3d at 1260 (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S. Ct. 2505, 2505, 91 L. Ed. 2d 202 (1986)). Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 19 of 38
Page 20 of 38 “Summary judgment is not a time for fact-finding; that task is reserved for trial.” Sconiers, 946 F.3d at 1263 (11th Cir. 2020) (citing Tolan v. Cotton, 572 U.S. 650, 655-57, 134 S. Ct. 1861, 188 L. Ed. 2d 895 (2014)). “[A]t the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249, 106 S. Ct. at 2511 (quoted in Sears v. Roberts, 922 F.3d 1199, 1205 (11th Cir. 2019)). B. The Relevant and Undisputed Rule 56(e) Evidence11 On February 22, 2022, Plaintiff was housed at the Wakulla Correctional Institution Annex, ECF No. 80, Ex. 1, and was housed in close management. ECF No. 72-6 at 122 (Ex. 6). Plaintiff admitted covering his cell door window, obstructing the view into the cell. 12 ECF No. 80 at 4; see also Ex. 2-A (Handheld video recording, part 1). Defendant Lurry ordered 11 In response to Defendants’ summary judgment motion, Plaintiff filed a “memorandum” and presented argument, but Plaintiff did not submit any evidence. ECF No. 80. Furthermore, Plaintiff’s statement of facts is essentially a restatement of Defendants’ facts from the summary judgment motion. Id. at 3-10. 12 On the day before this incident, Plaintiff was seen in mental health and was upset because he had not received his property. ECF No. 72-6 at 117. Plaintiff said he was going to refuse taking his blood pressure medications and “go on a food strike until” he received his property. Id. The clinician’s comments noted Plaintiff was “new to the DTU program” and was “not adjusting well to the policies and procedures.” Id. Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 20 of 38
Page 21 of 38 Plaintiff to uncover his window, submit to hand restraints, and follow all orders given by corrections staff. Ex. 2-A at 10:04-10:05 AM. Plaintiff was warned that chemical agents would be applied, but the undisputed evidence shows that Plaintiff failed to comply with Defendant Lurry’s order and failed to remove the coverings on his cell door window. Id.; see also ECF No. 80 at 5. At 10:09 AM, a final order was given to Plaintiff to uncover his window and submit to hand restraints. Ex. 2-A. It is undisputed that Plaintiff refused. Id.; see ECF No. 80 at 5. Plaintiff barricaded the door, attempting to make it difficult for chemical agents to be used against him. Ex. 2-A; see also ECF No. 80 at 5. Nevertheless, Lieutenant Dodson sprayed chemical agents into Plaintiff’s cell at 10:10 AM. Ex. 2-A. Six minutes later, Defendant Lurry again ordered Plaintiff to uncover his window and submit to hand restraints. Ex. 2-A at 10:16 AM. When he failed to do so, Lieutenant Dodson administered a second round of chemical agents. Id. Plaintiff still refused to comply with Lurry’s orders. Id. After several more minutes, Defendant Lurry and Lieutenant Dodson returned to Plaintiff’s cell front. Id. At 10:26 AM, Defendant Lurry repeated the order for Plaintiff to remove the window obstruction and submit to hand Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 21 of 38
Page 22 of 38 restraints. Id. Plaintiff admits that he “continued to resist all lawful commands.” ECF No. 80 at 6; see also Ex. 2-A. Lieutenant Dodson issued a third round of chemical agents at 10:27 AM. Ex. 2-A; see ECF No. 80 at 6. At 10:33 AM, Plaintiff finally removed the window covering from his cell door window. Ex. 2-A. Three minutes later, Defendant Lurry returned to Plaintiff’s cell front and asked if Plaintiff would submit to hand restraints. Id. Plaintiff’s response is indiscernible because his mouth covered, but he made no visible demonstration that he was willing to submit to hand restraints. Id. Plaintiff can be seen pacing back and forth in his cell but he never indicates a willingness to submit to restraints and voluntarily leave his cell. Id. The cell extraction team was deployed and arrived few minutes before 11:00 AM. Ex. 2-B (handheld video recording, part 2). Defendant Bennett was the shield operator in the cell extraction team. ECF No. 80 at 6; Ex. 2-B. Defendant Lurry gave Plaintiff another order to submit to hand restraints or the cell extraction team would remove him from the cell. Ex. 2-B at 10:53 AM. When Plaintiff refused to comply, the cell extraction team went in to restrain Plaintiff. Id.; Ex. 3. As the cell door opened, Plaintiff can Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 22 of 38
Page 23 of 38 be seen attempting to push back against the officers and escape the cell. Ex. 2-B. Defendant Bennett used his shield to push Plaintiff back into the call, and the cell extraction team then pushed forward to place Plaintiff into restraints. Id. Plaintiff was told to get on the ground, but he refused to do so; the team pushed Plaintiff to the ground. Id. Plaintiff continued to resist while on the ground, trying to crawl under his bed. Ex. 2-B at 10:54 AM. Plaintiff had to be pulled out from under the bed, and it took several minutes for the team to successfully put Plaintiff in restraints as he continued to fight against the team and failed to comply with commands to stop resisting. Id. There are no physical movements which indicate punching movements made by the cell extraction team. Id. The cell extraction team was able to put all restraints on Plaintiff’s legs and hands, and Defendant Lurry told Plaintiff he would be escorted to the decontamination shower. Id. Plaintiff responded that the team would have to carry him. Id. Plaintiff can be seen kicking while the team attempts to pick him up and carry him. Id. Just as the team exits the cell door, they all go to the ground because of Plaintiff’s kicking. Id. Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 23 of 38
Page 24 of 38 The team picked Plaintiff up and carried him down a flight of stairs and towards the shower. Id. Again, there are no punching or otherwise violent movements made by the cell extraction team as Plaintiff is carried. Id. at 10:58 AM – 11:05 AM. After being carried down the stairs, Plaintiff continues to be combative and refuses to stand and walk. Id. However, at 11:05 AM, almost 7 minutes into the transport from his cell to the shower, Plaintiff is raised to his feet and finally decides to walk the rest of the way to the decontamination shower. Id. He was escorted by Defendant Bennett and another officer. Id. at 11:05 AM. At 11:07 AM, Plaintiff is placed in the decontamination shower and the cell extraction team leaves. Id. However, when Plaintiff is ordered by Defendant Lurry to strip down for the shower, Plaintiff refused to do so, saying he wanted his property. Id. Plaintiff was reminded that he was on property restriction, and his property would not be returned for 72 hours. Id. Because Plaintiff refused to strip down, the cell extraction team returned to force Plaintiff to strip. Id. at 11:12 AM. Plaintiff again attempted to force his way out of the cell, and Defendant Bennett used the shield to force Plaintiff back into the shower cell and to the floor. Id. Officers yell Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 24 of 38
Page 25 of 38 repeatedly for him to stop resisting. Id. Eventually, the team used a “ligature cutter” to remove Plaintiff’s clothes and then two of the officers stood Plaintiff up for the decontamination shower. ECF No. 72-1 at 2 (Ex. 1); Ex. 2-B. Again, the video does not show any punching movements; the only force used is to hold Plaintiff down while officers cut off his clothes. Ex. 2-B. After the clothes are removed, officers have to physically hold Plaintiff in an upright position and hold a hose over Plaintiff to wash off the chemical agents. Id. Plaintiff took a 3-minute shower, between 11:18 - 11:21 AM. Id. Following the shower, Plaintiff was clothed in a yellow protective smock by the cell extraction team and escorted to medical at 11:25 AM. Id. The Emergency Room record indicates Plaintiff voiced no complaints and was in no distress. ECF No. 72-4 at 2; ECF No. 72-6 at 137 (Ex. 6). The only injuries noted were redness to his lower lip, and redness to his upper right cheek. Id. At 11:31 AM, Plaintiff is escorted from medical and placed in a different cell. Ex. 2-B. As he passes by the video operator, there are no apparent injuries to Plaintiff beyond the red area on his right cheek. Id. He is placed in the cell without incident. Id. Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 25 of 38
Page 26 of 38 Later that afternoon, Plaintiff complained about a headache. ECF No. 72-4 at 2; ECF No. 72-6 at 131. He was assessed and found to have an elevated blood pressure of 180/123, but he was not in “obvious distress.” ECF No. 72-6 at 131. The nurse notified the physician who ordered Metoprolol and HCTZ, but Plaintiff refused the medications, saying “he would ‘talk to the doctor tomorrow.’” Id. Plaintiff was to be monitored for any worsening symptoms. Id. Plaintiff was also seen by mental health the same day as the use of force, February 22, 2022. ECF No. 72-4 at 3; ECF No. 72-6 at 127. The notes reflect that Plaintiff said, he “didn’t get his property yesterday like they said I would, so I turned up like I said I would. . . .” Id. Plaintiff said staff had gassed him, cut off his clothes, and “jumped on” him. ECF No. 72-6 at 127, 128. He claimed they “busted my face and beat me up on purpose.” Id. The clinician noted that during his interview, Plaintiff had a swollen bottom lip, a bruise under his right eye, and “the right side of his face was starting to swell up.” Id. at 128. The day after the use of force, an “Infirmary Progress Record reveals that Plaintiff said he was going to “sue them for beating [him] up and touching [his] private areas.” ECF No. 72-6 at 148. He admitted that he Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 26 of 38
Page 27 of 38 had not taken his medications since February 19th, and said he would keep refusing them until he received his property. Id. A health care note reflects that Plaintiff was seen at his cell front and denied chest pain, hyspnea, 13 or blurred vision. Id. at 149. Two days after the use of force, Plaintiff was seen at medical for hypertension and his refusal to take his medication. ECF No. 72-6 at 161. At another point that day, Plaintiff requested “medical come check his eye.” Id. at 162. He complained that he had pain in his right eye. Id. at 165. He was given “artificial tears solution” for his right eye. Id. at 164-165. The medical record indicates there was redness in his right eye, and that his blood pressure was 161/101. Id. at 165. He was instructed to comply with all his prescribed medications. Id. On March 1, 2022, Plaintiff complained of blurred vision in his right eye. Id. at 174-75. The attending clinician documented that Plaintiff had decreased visual acuity and a subconjunctival hemorrhage to Plaintiff’s right eye. Id. It was recommended that Plaintiff have an urgent referral to an ophthalmologist. Id. In the meantime, Plaintiff was “advised to report 13 Dyspnea is a medical term for difficult or labored breathing. Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 27 of 38
Page 28 of 38 any worsening signs or symptoms to medical via sick-call process and/or declaration of medical emergency if urgent.” Id. at 174. The request was approved. Id. at 178. On March 11, 2022, Plaintiff’s eye was still red and swollen, and he said his vision was “still blurry.” Id. at 183. Plaintiff said he was using the eye drops but “they aren’t working that good because I still can’t see.” Id. Plaintiff was seen at Eye Associates of Tallahassee on June 2, 2022. ECF No. 72-7 at 316. The notes from that visit indicate Plaintiff reported suffering “blunt trauma” in his right eye about “two months ago.” 14 Id. Plaintiff was diagnosed with “right optic atrophy.” Id. at 319; ECF No. 72-4 at 3. The notes state there was “[n]o observed damage from trauma, suspect retrobulbar optic nerve damage.” ECF No. 72-7 at 319. Plaintiff was referred to neurology and he was directed to take lisinopril (10mg) daily. 15 Id. No other treatment was recommended. ECF No. 72-7 at 369. 14 The February 22nd cell extraction took place a little over 3 months prior to the visit. 15 Lisinopril is primarily used to treat high blood pressure; the medical record from Eye Associates noted Plaintiff had hypertension. Id. at 316. At the time of the incident, Plaintiff was prescribed Metoprolol, another medication used to treat high blood pressure, but the evidence here shows he often refused medication. See, e.g., ECF No. 72-7 at 328. Notably, he refused both Lisinopril and Metoprolol multiple times in August 2022. Id. at 373, 379-381, 383-385, 393-394, 401, 406, 411, 415, 419, 433, 436. Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 28 of 38
Page 29 of 38 According to a declaration submitted by Nurse Kellie Caswell with the medical records, “hypertension can be a cause of optic atrophy.” ECF No. 72-4 at 2. No medical opinion was cited, however, showing definitively that Plaintiff’s hypertension was the cause of his optic atrophy. Plaintiff had a follow-up appointment at a Tallahassee Neuro-Ophthalmology Clinic on November 17, 2022. ECF No. 72-9 at 157. Plaintiff reported that he was “struck in the right eye by a police officer,” and said that within a day or two of the injury, “he had an ecchymosis around his eye, which was swollen, and his vision blurred.” Id. He complained that he “has had continuous blurring of vision” since then and images “seem to ‘jump.’” Id. He said it was not worsening, “but not improving either.” Id. At the time of that appointment, Plaintiff’s blood pressure was 187/106, which the doctor noted was “elevated.” Id. at 158. Plaintiff was diagnosed with traumatic optic neuropathy. Id. The ophthalmologist said that finding was “consistent with” Plaintiff’s story of “a blow to the right orbit, but it does not necessarily mean that is the explanation.” Id. Almost a year later, on October 2, 2023, Plaintiff’s vision in his right eye was 20/25 without glasses. ECF No. 72-7 at 145. Plaintiff told the Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 29 of 38
Page 30 of 38 nurse he could not see out of his left eye due to “history of surgery,” but no evidence has been presented which shows that Plaintiff ever had eye surgery. 16 Id.; see also ECF No. 72-7 at 150. On that same day, a consult request was submitted to refer Plaintiff to an optometrist. Id. at 151. However, the records show that Plaintiff refused to see the optometrist on November 9, 2023. ECF No. 72-7 at 166; ECF No. 72-4 at 4. Plaintiff had a periodic screening on January 18, 2024, and his vision on that day was 20/25 in both his right and left eye, without glasses. ECF No. 72-7 at 203, 205. When asked whether there had been any changes to his vision since his last visit, Plaintiff answered, “no.” Id. at 205. Curiously, Plaintiff complained of vision problems in late March 2024. ECF No. 72-7 at 294. A notation in his medical reveals that health care personnel from Santa Rosa Annex (where Plaintiff was currently housed) received records from Plaintiff’s ophthalmology appointment in November, 2022. ECF No. 72-8 at 172. It was noted that a recommendation had been made for Plaintiff to have “an orbit scan,” and it was decided that Plaintiff should repeat his “visual acuity” examination to determine if 16 There is evidence, however, which shows that Plaintiff was seen in the prison emergency room on July 21, 2022, after an altercation with another inmate. ECF No. 72-8 at 2. Plaintiff said he was “struck on the left side of [his] face.” Id. Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 30 of 38
Page 31 of 38 Plaintiff was “still having the same visual difficulty.” ECF No. 72-8 at 172. On April 7, 2024, Plaintiff “refused to come to medical for Visual Acuity;” attempts were made on both Saturday and Sunday. Id. at 173; see also Id. at 176. Plaintiff was eventually “brought in for vision exam” on April 9, 2024. Id. at 194. The comments indicate the examine was “difficult” as Plaintiff “kept looking around.” Id. at 195. The doctor noted the vision in Plaintiff’s right eye was normal, but he had decreased visual acuity in the left eye. Id. Plaintiff indicated he could “only see in the center of the field.” Id. His acuity in the right eye was 20/30 and his left eye was 20/200. Id. However, the doctor noted that he he or she was unsure if that was true or if Plaintiff was “exaggerating his visual problems.” Id. The doctor offered to submit a consult request for Plaintiff to see an optometrist or ophthalmologist, but Plaintiff refused. Id. Plaintiff also refused to sign the refusal form. Id.; see also ECF No. 72-8 at 199. Plaintiff said he did not “need glasses or want to see an eye doctor, because he only needs to be able to see out of one eye, and he can see out of the R eye.” Id. at 194. Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 31 of 38
Page 32 of 38 C. Unnecessary Excessive Force Claim The Eighth Amendment forbids cruel and unusual punishment. Farrow v. West, 320 F.3d 1235, 1242 (11th Cir. 2003). A claim that a prison official unnecessarily used excessive physical force on a prisoner falls within the Cruel and Unusual Punishments Clause. The “core judicial inquiry” for this claim uses the standard set forth in Whitley v. Albers, 475 U.S. 312, 106 S. Ct. 1078, 89 L. Ed. 2d 251 (1986): “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically for the very purpose of causing harm.” Hudson v. McMillian, 503 U.S. 1, 6, 112 S. Ct. 995, 998, 117 L. Ed. 2d 156 (1992) (quoting Whitley, at 320-21, 106 S. Ct. at 1085). The inquiry in this case is an easy one. The video evidence depicts the events at issue and Plaintiff does not dispute them. Plaintiff failed to comply with multiple commands of prison officials to remove the material blocking his cell window and to submit to hand restraints. As a result, he was subjected to pepper spray three times, and then forcibly cuffed and carried from his cell. There is no dispute that force was used against him. Yet the force used was neither unreasonable nor excessive. Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 32 of 38
Page 33 of 38 “An officer’s use of force is excessive, and thus violates the prisoner’s Eighth Amendment right to be free from cruel and unusual punishments, only if the force “was applied ... maliciously and sadistically for the very purpose of causing harm.” Campbell v. Sikes, 169 F.3d 1353, 1374 (11th Cir. 1999) (quoting Whitley v. Albers, 475 U.S. 312, 320–21, 106 S. Ct. 1078, 1085, 89 L. Ed. 2d 251 (1986)) (quoted in Miles v. Jackson, 757 F. App’x 828, 829 (11th Cir. 2018)). The force used against Plaintiff was not done maliciously or sadistically, but solely for the purpose of gaining control and placing Plaintiff in restraints. He fought them at every step. He blockaded the door in an attempt to prevent the chemical agents from reaching him. He charged at the officers when his cell door was opened. He attempted to crawl under his bed to avoid being placed in restraints. He refused to walk, requiring staff to carry him by his arms and legs. Even then, Plaintiff was continuing to resist by kicking and pulling while he was carried. Force was necessary. See Miles, 757 F. App’x at 830 (finding “there was a need for that force because, as Miles conceded in his deposition, he not only failed to comply with officer Jackson’s order to go further into the jail cell, but also evaded Jackson’s attempt to get him to comply”). Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 33 of 38
Page 34 of 38 In addition, considering the five factors 17 in analyzing excessive force claims, the evidence reveals Defendants did not violate Plaintiff’s rights. Plaintiff’s own defiant actions compelled the officers to use force to maintain discipline and order. The force used was not disproportionate. Only that amount of force which was needed to “control an inmate who has failed to obey a jailer’s orders” was used. See Miles, 757 F. App’x at 830 (quoting Danley v. Allen, 540 F.3d 1298, 1307 (11th Cir. 2008), overruled on other grounds as recognized by Randall v. Scott, 610 F.3d 701 (11th Cir. 2010)). It was reasonable for the officers to perceive Plaintiff’s behavior as threatening, particularly because he rushed forward towards them when his cell door was opened, and then was combative. The force used was tempered because officers stopped holding Plaintiff down as soon as restraints were successfully applied to his hands and feet. Finally, although it is unnecessary to discuss the fifth factor at length in light of the analysis explained in considering the motion for judgment on 17 The five factors used to determine whether force was maliciously and sadistically applied are: “[1] the need for application of force, [2] the relationship between that need and the amount of force used, [3] the threat ‘reasonably perceived by the responsible officials,’ ... [4] ‘any efforts made to temper the severity of a forceful response,’ ” and “[5] [t]he absence of serious injury.” Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 999, 117 L.Ed.2d 156 (1992) (quoting Whitley, 475 U.S. at 321, 106 S.Ct. at 1085) (quoted in Miles, 757 F. App’x at 829)). Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 34 of 38
Page 35 of 38 the pleadings, Plaintiff was not seriously injured. He had a swollen lip and a red swollen area on his cheek. Although he subsequently claimed to have suffered a blackened eye and vision problems, his version of the facts does not support his claim. Plaintiff alleged in his complaint that he was “hit in the left eye” causing problems in his “left eye.” ECF No. 60 at 5. First, there is no evidence to show that Plaintiff was “hit.” Second, there is no evidence to show a problem with his left eye following the incident. Instead, the evidence showed redness to his upper right cheek, and subsequently, he was found to have decreased visual acuity in his right eye. Whether that problem is from his lack of compliance with his blood pressure or something else, it still does not support his claim that he suffered a “left eye” injury. The Court finds that the evidence in this case is not disputed. Because excessive force was not used against him by either Defendant Bennet or Lurry, neither Defendant failed to protect him from unnecessary and excessive force. Summary judgment should be granted in favor of the Defendants. Finally, Defendants request that this case be designated as frivolous and malicious. ECF No. 82 at 6-8. Their argument is persuasive - that Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 35 of 38
Page 36 of 38 because Plaintiff conceded he was not compliant with orders given to him by prison officials - the use of force was not unconstitutional. Further, if Plaintiff had originally alleged in his complaint that he was actively resisting the orders to submit to restraints, the Court agrees that this case would likely have been dismissed prior to service. Id. at 6. This lawsuit has been pending for over two years, proceeding to summary judgment. Yet at this point, Plaintiff only adopted the facts presented by the Defendants, facts which unquestionably show his rights were not violated. Their frustration is understandable. Notably, in making the recommendation that summary judgment should be granted in favor of the Defendants, the Court has “considered more than the allegations in” the prisoner’s complaint. See Wells v. Brown, 58 F.4th 1347, 1361 (11th Cir. 2023). This is not a case in which the complaint failed to state a claim; the evidence refutes the claim. Even so, Plaintiff came forward with zero evidence to support his claims. He has conceded the events were not as he claimed in his complaint by presenting Defendants’ version of facts in response to the summary judgment motion. In light thereof, it appears this action was maliciously brought, and a “strike” should be assessed against Plaintiff under § 1915(g) for this action. See Sweet v. Boyd, No. Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 36 of 38
Page 37 of 38 407-CV-00484-MP-AK, 2010 WL 940360, at *2 (N.D. Fla. Mar. 12, 2010) (granting defendant’s summary judgment motion and imposing a strike against plaintiff on the basis that the case was “frivolous and malicious pursuant to 28 U.S.C. § § 1915(e)(2)” based on the “utter lack of evidence” plaintiff presented other what a “factually dis-proven affidavit”). RECOMMENDATION It is respectfully RECOMMENDED that Defendants’ motion for judgment on the pleadings, ECF No. 64, be GRANTED in part, and that Defendants’ motion for summary judgment, ECF No. 72, be GRANTED. It is also RECOMMENDED that the Clerk of Court be directed to note on the docket that this case was “malicious” pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). IN CHAMBERS at Tallahassee, Florida, on December 1, 2025. S/ Martin A. Fitzpatrick MARTIN A. FITZPATRICK UNITED STATES MAGISTRATE JUDGE Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 37 of 38
Page 38 of 38 NOTICE TO THE PARTIES Within fourteen (14) days after being served with a copy of this Report and Recommendation, a party may serve and file specific written objections to these proposed findings and recommendations. Fed. R. Civ. P. 72(b)(2). A copy of the objections shall be served upon all other parties. A party may respond to another party’s objections within fourteen (14) days after being served with a copy thereof. Fed. R. Civ. P. 72(b)(2). Any different deadline that may appear on the electronic docket is for the Court’s internal use only and does not control. If a party fails to object to the Magistrate Judge’s findings or recommendations as to any particular claim or issue contained in this Report and Recommendation, that party waives the right to challenge on appeal the District Court’s order based on the unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636. Case No. 4:23cv184-MW-MAF Case 4:23-cv-00184-MW-MAF Document 84 Filed 12/01/25 Page 38 of 38
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