Maximo Gomez v. Captain Steven W. Lister, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10808
Non-Argument Calendar
____________________
MAXIMO GOMEZ,
Plaintiff-Appellant,
versus
CAPTAIN STEVEN W. LISTER,
CAPTAIN JASON CARTER,
SGT. SLATER WILLIAMS,
SGT. ANTHONY MCCRAY,
JALENAH STORMANT,
Defendants-Appellees,
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2 Opinion of the Court 22-10808
LPN JALENA MCELWAIN,
Defendant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:20-cv-00253-BJD-MCR
____________________
Before W ILSON, L UCK , and MARCUS, Circuit Judges.
PER CURIAM:
Maximo Gomez, a Florida state prisoner proceeding
pro se,
appeals from the district court’s order granting summary judgment
to the defendants in his case alleging,
inter alia, civil rights viola-
tions under 42 U.S.C. § 1983. On appeal, Gomez argues that: (1)
the district court erred in concluding that the defendants did not
use excessive force against him or disregard the risk of harm; and
(2) the district court erred in determining that the defendants were
not deliberately indifferent to his serious medical needs. After thor-
ough review, we affirm.
I.
We review a district court’s summary judgment ruling
de
novo, viewing the facts in the light most favorable to the non-
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22-10808 Opinion of the Court 3
movant.
Hallums v. Infinity Ins. Co., 945 F.3d 1144, 1148 (11th Cir.
2019). Summary judgment is proper when “there is no genuine
dispute as to any material fact and the movant is entitled to judg-
ment as a matter of law.” Fed. R. Civ. P. 56(a). “[U]nsupported
speculation does not meet a party’s burden of producing some de-
fense to a summary judgment motion,” however, because it does
not create a genuine issue of material fact, but instead “creates a
false issue, the demolition of which is a primary goal of summary
judgment.”
Cordoba v. Dillard’s Inc., 419 F.3d 1169, 1181 (11th Cir.
2005) (quotations omitted). Further, on summary judgment, we
will “accept facts clearly depicted in a video recording even if there
would otherwise be a genuine issue about the existence of those
facts.”
Shaw v. City of Selma, 884 F.3d 1093, 1097 (11th Cir. 2018)
(citing
Scott v. Harris, 550 U.S. 372, 380–81 (2007)). An appellant
abandons a claim on appeal “when he either makes only passing
references to it or raises it in a perfunctory manner without sup-
porting arguments and authority.”
Sapuppo v. Allstate Floridian
Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014).
II.
The relevant background -- based on the summary judg-
ment record, which includes video recordings of the incident in
question -- is this. On October 8, 2017, Gomez was housed at Ham-
ilton Correctional Institution in Jasper, Florida, when he advised
Sergeant Chamele James that he was feeling extremely depressed
and having a psychological emergency. Sergeant James escorted
Gomez to Jalenah Stormant, the facility’s nurse, for a mental health
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4 Opinion of the Court 22-10808
evaluation. At the end of the evaluation, Gomez laid prone on the
floor and refused to be escorted back to his cell. Officers carried
Gomez to a confinement cell, where he began yelling, banging his
body against the cell wall, and resisting the removal of his hand
restraints, preventing the closure of the flap of the cell door. At the
direction of Captain Steve Lister, Gomez was administered one ap-
plication of chemical agents and the officers were able to close the
door flap. Officers then escorted Gomez to a decontamination
shower and when he again began yelling that he needed help and
felt suicidal, Lister ordered a second and third application of chem-
ical agents. Gomez continued to yell and curse, refused multiple
orders to submit to restraints or change out of his wet shorts, and
began jumping up and down. At that point, a cell extraction team,
which included Sergeants Slater Williams and Anthony McCray,
entered the shower cell, repeatedly demanded that Gomez “stop
resisting,” and restrained him.
Once restrained, Captain Jason Carter took Gomez back to
Nurse Stormant for a post-use-of-force evaluation. The post-use-
of-force examination form showed that Stormant evaluated
Gomez for injuries, found no neurological trauma, and treated a
laceration above his left eye. The next day, the prison doctor saw
Gomez and sent him to an outside hospital, Shands Live Oak,
which diagnosed him with a hand contusion and an eyebrow lac-
eration.
Thereafter, Gomez brought this case in the United States
District Court for the Middle District of Florida, raising state-law
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22-10808 Opinion of the Court 5
battery and civil rights violations under § 1983. Following the filing
of cross-motions for summary judgment, the district court granted
each of the defendants’ motions and denied Gomez’s motion.
This timely appeal follows.
III.
First, we are unpersuaded by Gomez’s claim that the district
court erred in granting summary judgment to the defendants on
his excessive-force claim. Under § 1983, no person acting under
color of law shall deprive another of their constitutional rights. 42
U.S.C. § 1983. The Eighth Amendment, in turn, prohibits the in-
fliction of cruel and unusual punishment. U.S. Const. amend. VIII.
This “places restraints on prison officials, who may not . . . use ex-
cessive physical force against prisoners.”
Farmer v. Brennan, 511
U.S. 825, 832 (1994). The “unnecessary and wanton infliction of
pain . . . constitutes cruel and unusual punishment forbidden by the
Eighth Amendment.”
Hudson v. McMillian, 503 U.S. 1, 5 (1992)
(quotations omitted). Unnecessary and wanton inflictions of pain
include “those that are totally without penological justification.”
Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (quotations omitted).
In considering an Eighth Amendment excessive force claim,
we must consider both an objective and subjective component:
whether officials “acted with a sufficiently culpable state of mind”;
and whether “the alleged wrongdoing was objectively harmful
enough to establish a constitutional violation.”
Hudson, 503 U.S.
at 8 (quotations and brackets omitted). “Under the Eighth
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Amendment, force is deemed legitimate in a custodial setting as
long as it is applied in a good faith effort to maintain or restore dis-
cipline and not maliciously and sadistically to cause harm.”
Skrtich
v. Thornton, 280 F.3d 1295, 1300 (11th Cir. 2002) (quotations and
brackets omitted). To determine whether an application of force
is excessive, we consider: (1) “the need for the application of force”;
(2) “the relationship between that need and the amount of force
used”; (3) “the threat reasonably perceived by the responsible offi-
cials”; and (4) “any efforts made to temper the severity of a forceful
response.”
Id. (quotations omitted).
Additionally, “an officer who is present at the scene and who
fails to take reasonable steps to protect the victim of another of-
ficer’s use of excessive force can be held personally liable for his
nonfeasance.”
Id. at 1301. However, “[m]ere knowledge of a sub-
stantial risk of serious harm” is insufficient.
Hale v. Tallapoosa
Cnty., 50 F.3d 1579, 1583 (11th Cir. 1995). A plaintiff must produce
evidence that the officer “knowingly or recklessly disregarded that
risk by failing to take reasonable measures to abate it.”
Id. (quota-
tions and brackets omitted).
Here, the district court did not err in concluding that the de-
fendants -- Captain Lister, Sergeant Williams, and Sergeant
McCray -- were entitled to summary judgment on Gomez’s exces-
sive-force claims. First, as for Gomez’s claim that Captain Lister
used excessive force by authorizing chemical agents to be used
against him, there is no genuine dispute of material fact concerning
this claim. The video recording reveals that before the first
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22-10808 Opinion of the Court 7
application of chemical agents, Gomez repeatedly defied orders
and engaged in disruptive, aggressive behavior, screaming and
banging his body against the cell wall. Then, before the subsequent
applications of chemical agents, Gomez again refused to comply
with orders, yelled and cursed at officers, and attempted to com-
municate with other inmates. On this record, Captain Lister rea-
sonably concluded that force was needed after Gomez ignored his
verbal orders, and authorized only the use of chemical agents nec-
essary to gain Gomez’s compliance.
Skrtich, 280 F.3d at 1300. Fur-
ther, in light of Gomez’s aggressive behavior and his attempts to
communicate with other inmates, Lister reasonably considered
Gomez a threat to prison safety.
Id.
There is also no genuine dispute of material fact concerning
Gomez’s claims against Sergeants Williams and McCray. As the
video recording shows, when the cell extraction team arrived,
Gomez refused to submit to hand restraints or change into dry
clothes, raised his arms in the air, and jumped in an aggressive man-
ner. Thus, in conjunction with Gomez’s previous noncompliance
with numerous orders, the officers reasonably believed that the use
of force was required.
Id. Moreover, nothing in the record sug-
gests the officers used more physical force than necessary.
Id. Only
three members of the five-man cell extraction team entered the
cell, and the extraction took just two minutes, after which the of-
ficers used no further physical force and took Gomez to the medi-
cal room. And because Gomez cannot show that Sergeants Wil-
liams and McCray used excessive force, he likewise cannot show
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8 Opinion of the Court 22-10808
that Lister failed to intervene to protect him from excessive force.
Accordingly, we affirm the district court’s grant of summary judg-
ment in favor of Lister, Williams and McCray.1
IV.
We also find no merit to Gomez’s argument that the district
court erred in concluding that the defendants were not deliberately
indifferent to his serious medical needs when he was seen in the
post-use-of-force medical evaluation. “[D]eliberate indifference to
serious medical needs of prisoners constitutes the unnecessary and
wanton infliction of pain . . . proscribed by the Eighth Amend-
ment.”
Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quotations and
citation omitted). In bringing a deliberate indifference claim, a
plaintiff must show “(1) a serious medical need; (2) the defendant’s
deliberate indifference to that need; and (3) causation between that
indifference and the plaintiff’s injury.”
Gilmore v. Hodges,
738 F.3d 266, 273–74 (11th Cir. 2013) (quotations omitted).
“A plaintiff must first show an objectively serious medical
need that, if unattended, posed a substantial risk of serious harm,
and that the official’s response to the need was objectively
1 Gomez only mentions in one sentence that the district court erred in inter-
preting his unlawful battery claims against Sergeants McCray and Williams as
part of his constitutional claims, and, therefore, he has abandoned this argu-
ment.
Sapuppo, 739 F.3d at 681. In any event, any claim by Gomez for battery
fails for the same reasons as his constitutional claims, whether considered as
part of his constitutional claims or independently under state law.
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22-10808 Opinion of the Court 9
insufficient.”
Id. at 274. A serious medical need is “one that has
been diagnosed by a physician as mandating treatment or one that
is so obvious that even a lay person would easily recognize the ne-
cessity for a doctor’s attention.”
Id. (quotations omitted). In gen-
eral, serious medical needs require immediate medical attention.
Id. Next, the plaintiff must show that “the official subjectively
knew of and disregarded the risk of serious harm, and acted with
more than mere negligence.”
Id. “[K]nowledge of the need for
medical care and intentional refusal to provide that care has con-
sistently been held to surpass negligence and constitute deliberate
indifference.”
Id. (quotations omitted). “Even when medical care
is ultimately provided, a prison official may nonetheless act with
deliberate indifference by delaying the treatment of serious medi-
cal needs.”
Nam Dang by & through Vina Dang v. Sheriff, Semi-
nole Cnty., 871 F.3d 1272, 1280 (11th Cir. 2017). However, the de-
lay must “seriously exacerbate the medical problem” and be “med-
ically unjustified.”
Taylor v. Adams, 221 F.3d 1254, 1259–60 (11th
Cir. 2000).
A prisoner alleging deliberate indifference “has a steep hill to
climb.”
Keohane v. Fla. Dep’t of Corr. Sec’y, 952 F.3d 1257, 1266
(11th Cir. 2020). Medical treatment only violates the Eighth
Amendment when it is “so grossly incompetent, inadequate, or ex-
cessive as to shock the conscience or to be intolerable to fundamen-
tal fairness.”
Id. (quotations omitted). The Eighth Amendment
does not require medical care to be “perfect, the best obtainable,
or even very good.”
Id. (quotations omitted). “[M]ere negligence
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10 Opinion of the Court 22-10808
or a mistake in judgment does not rise to the level of deliberate
indifference.”
Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1308 (11th
Cir. 2009). Further, “a simple difference in medical opinion be-
tween the prisoner’s medical staff and the inmate as to the latter’s
diagnosis or course of treatment” does not support a claim of de-
liberate indifference.
Keohane, 952 F.3d at 1266.
Here, there is no genuine dispute of material fact concerning
whether Captain Carter and Nurse Stormant knew of and disre-
garded any risk of harm and acted with more than mere negligence
when Gomez went for the initial post-use-of-force evaluation.
Gil-
more, 738 F.3d at 274. Indeed, the undisputed record reflects that
when Stormant evaluated Gomez for injuries during the evalua-
tion -- assessing and finding, among other things, that there was no
indication that he had suffered a concussion or other neurological
trauma -- she found a laceration above his left eye that required
treatment, she cleaned and applied an antibiotic to the laceration,
and she applied steri-strips. The evaluation form stated that
Gomez tolerated the treatment well and had no further com-
plaints. After Gomez’s laceration reopened about an hour later,
Nurse Stormant noted in a laceration protocol form that it had re-
opened, cleaned the wound again and reapplied steri-strips. She
contacted Dr. Colombani, a prison doctor, who advised her to use
bandages and said he would evaluate it the morning to see if su-
tures were required; as a licensed practical nurse, Stormant was not
authorized to apply sutures herself.
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22-10808 Opinion of the Court 11
On this record, Gomez cannot show that Stormant was de-
liberately indifferent to, or intentionally disregarded, a serious
medical need, or that her care was “so grossly incompetent, inade-
quate, or excessive as to shock the conscience or to be intolerable
to fundamental fairness.”
Keohane, 952 F.3d at 1266. Instead, his
claims amount to mere disagreements as to the course of his treat-
ment, which do not support a claim of deliberate indifference.
Id.
Nor can Gomez show that his medical treatment was de-
layed in any way that seriously exacerbated his medical problem.
Taylor, 221 F.3d at 1259–60. As the undisputed record reflects,
prison officers brought him promptly to the medical room for a
post-use-of-force evaluation after the cell extraction. Nurse
Stormant determined at this evaluation that suturing was unneces-
sary, and, regardless, she was not authorized to apply sutures.
There is also nothing to suggest that Stormant delayed Gomez’s
treatment in a way that exacerbated his injuries. Although Gomez
was prescribed eyeglasses in 2018, medical forms showed that nei-
ther Dr. Colombani nor the doctors at Shands Live Oak diagnosed
him with an eye injury.
As for Gomez’s claim that Captain Carter told Stormant to
stop treating him during the post-use-of-force evaluation, it is based
on pure speculation.
Cordoba, 419 F.3d at 1181. While Carter
moved Gomez to a confinement cell during the evaluation,
Stormant explained that Carter temporarily moved Gomez to a
confinement cell while she went to obtain more steri-strips -- which
is routine procedure. After Stormant obtained the necessary
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supplies, the officers returned Gomez to the medical room for fur-
ther treatment, and Stormant continued treating him until he re-
quired no further treatment in her medical opinion. Further, be-
cause Sergeants McCray and Williams did not use excessive force,
as we’ve already discussed, Gomez’s claim that Carter was deliber-
ately indifferent in failing to intervene to protect him fails as well.
We, therefore, also affirm the district court’s grant of summary
judgment in favor of Nurse Stormant and Captain Carter.
AFFIRMED.
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