DELICES v. TUCKER

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
VILES DELICES,
Plaintiff,
vs. 	Case No.: 3:24cv284/LC/ZCB
PRESTON TUCKER,
Defendant.
_____________________________/
REPORT AND RECOMMENDATION
This is a pro se prisoner civil rights case filed under 42 U.S.C. §
1983. Plaintiff, Viles Delices, is an inmate of the Florida Department of
Corrections (FDOC). His complaint asserts an Eighth Amendment claim
of excessive force and a First Amendment claim of retaliation against
FDOC Officer Preston Tucker. 	(Doc. 1). 	Plaintiff also asserts state law
claims for intentional infliction of emotional distress and breach of
fiduciary duty. 	(Id.). 	Plaintiff has moved for summary judgment (Doc.
32), Defendant has responded in opposition (Doc. 35), and Plaintiff has
replied (Doc. 39). For the reasons below, Plaintiff’s motion for summary
judgment should be denied.
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I. 	Factual Background
A. 	Plaintiff’s version of events1
On July 4, 2020, around 1:30 a.m., Plaintiff was in his cell at Santa
Rosa Correctional Institution. (Doc. 1 at 3-4). He claims an officer came
to his cell, told him to pack up his property, and exit his cell. 	(Id. at 4).
As Plaintiff exited his cell, he claims he “was met by Defendant Tucker,”
who ordered him to submit to hand restraints. 	(Id. at 4-5). 	Plaintiff
claims he complied and was handcuffed with his hands behind his back.
(Id. at 5).
Defendant then escorted Plaintiff outside of the dormitory. 	(Doc.
32-1 at 1). 	Defendant told Plaintiff he could “make all [of] this stop if
Plaintiff drop[ped] the lawsuit against” Defendant’s fellow officers. (Id.).
Plaintiff 	refused. 	(Id.). 	Plaintiff 	alleges 	Defendant 	then 	became
“aggressive” 	and 	“used 	his 	knee 	to 	strike 	Plaintiff 	in 	the 	back 	of
[Plaintiff’s] left knee.” (Doc. 1 at 5). Plaintiff claims he fell to his knees.
(Id.). Plaintiff alleges Defendant then “repeatedly kicked” Plaintiff in the
1 Plaintiff’s version of events is taken from his complaint (Doc. 1) and
affidavit attached to his motion for summary judgment (Doc. 32-1), which
were signed under penalty of perjury.
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back of his legs and slammed his face into the fence. 	(Id.). 	Defendant
allegedly refused to take Plaintiff to medical for an assessment after the
attack. (Id.).
Plaintiff 	claims 	that 	he 	suffered 	“multiple 	contusions” 	and
lacerations to the back of his legs and knees, lacerations to his lips, and
abrasions to his face and forehead. 	(Id.). 	Plaintiff states that a nurse
came to assess him later, but she refused to document his injuries
because Defendant was a supervisor at the prison. (Doc. 32-1 at 2). After
the incident, Plaintiff received a disciplinary report. 	(Doc. 1 at 6).
Plaintiff 	claims 	Defendant 	fabricated 	this 	report 	in 	retaliation 	for
Plaintiff’s lawsuit against fellow FDOC officers. (Id. at 6-7).
According to Plaintiff, Defendant used excessive force in violation
of the Eighth Amendment and retaliated against him in violation of the
First Amendment. 	(Id. at 4-7). 	He also brings state law claims for
intentional infliction of emotional distress and breach of fiduciary duty.
(Id. 	at 	8-9). 	Plaintiff 	seeks 	nominal, 	compensatory, 	and 	punitive
damages. (Id. at 9-10).
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B. 	Defendant’s version of events
Defendant tells a different story about what happened. Defendant
states that he has no recollection of interacting with Plaintiff on July 4,
2020, but Defendant disputes that he has ever threatened, intimidated,
denied medical treatment to, or used force against a prisoner for filing a
lawsuit against himself or fellow colleagues. (Doc. 35-2).
Defendant has also submitted Plaintiff’s disciplinary report.2 (Doc.
35-1). The disciplinary report states that on July 4, 2020, Defendant was
called to Plaintiff’s dormitory due to Plaintiff refusing to go to his
assigned cell. 	(Doc. 35 at 2; Doc. 35-1 at 1). 	While counseling Plaintiff
about returning to his cell, Defendant claims Plaintiff stated “I’m not
2 In considering a summary judgment motion, a court may only consider
evidence that is admissible or that could be presented in an admissible
form. Denney v. City of Albany, 247 F.3d 1172, 1189 n.10 (11th Cir. 2001).
The disciplinary report, as an out of court statement, is hearsay that
cannot be used to prove the truth of the matter asserted in the report
unless a hearsay exception applies. Fed. R. Evid. 801(c); see also Santos
v. White, 18 F.4th 472, 477 (5th Cir. 2021) (recognizing the prison
disciplinary reports submitted by defendants were hearsay that could not
be offered to prove the truth of the matter asserted). Defendant has not
offered an exception to the hearsay rule that applies to the disciplinary
report. 	Therefore, the Court has only relied on Defendant’s declaration
in deciding Plaintiff’s summary judgment motion and has not considered
the disciplinary report.
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going back in that cell. 	I’m going to f*** someone up.” 	(Id.). 	Plaintiff
was found guilty of the disciplinary charge for a spoken threat.
II. 	Summary Judgment Standard
Summary judgment is appropriate “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). 	A dispute is
“genuine” if the “evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” 	Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). 	A fact is “material” if it “might affect the outcome
of the suit under the governing law.” 	Id.
At 	bottom, 	the 	summary 	judgment 	question 	is 	“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.” 	Id. at 251-52. 	When answering that question, courts view the
evidence in the light most favorable to the nonmoving party. 	Scott v.
Harris, 550 U.S. 372, 380 (2007). 	But the nonmoving party bears the
burden of coming forward with sufficient evidence on each element.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 	A mere “scintilla”
of evidence is insufficient to meet that burden. 	Young v. City of Palm
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Bay, Fla., 358 F.3d 859, 860 (11th Cir. 2004). 	Likewise, speculation or
conjecture cannot create a genuine issue of material fact. 	Cordoba v.
Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005).
III. 	Discussion
When there are “two competing, contradictory stories of what
happened,” it is generally improper to grant summary judgment. Hall v.
Bennett, 447 F. App’x 921, 924 (11th Cir. 2011). That is so because at the
summary judgment stage it “is inappropriate for the district court to
make credibility determinations or to weigh the evidence.” 	Sears v.
Warden Okeechobee Corr. Inst., 762 F. App’x 910, 914 (11th Cir. 2019).
Here, granting Plaintiff’s motion for summary judgment would be
improper. 	At the end of the day, this case comes down to which party’s
version of events is accurate. 	And making that decision requires a
determination as to who is telling the truth about what happened.
Because there is no uncontroverted evidence that “blatantly contradicts”
Defendant’s version of events, that is not a call the Court can make at
the summary judgment stage. 	That is so because “[i]t is not the court’s
role to weigh conflicting evidence or to make credibility determinations.”
Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996)
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(citations omitted). Rather, “the non-movant’s evidence is to be accepted
for purposes of summary judgment.” 	Id. 	Determinations of credibility
and 	“the 	weighing 	of 	the 	evidence, 	and 	the 	drawing 	of 	legitimate
inferences from the facts are jury functions, not those of a judge[.]”
Anderson, 477 U.S. at 255.
Plaintiff’s motion for summary judgment largely relies on the fact
that Defendant does not recall much of what happened on July 4, 2020.
But Defendant’s failure to recall specific events from a particular date
several years earlier does not constitute an admission that the Plaintiff’s
version of those events is accurate. 	And although Defendant admits he
cannot recall his interaction with Plaintiff on July 4, 2020, he denies that
he has ever engaged in the type of conduct set forth in Plaintiff’s version
of the facts. The Eleventh Circuit has recognized that a litigant’s sworn
statement can “create an issue of material fact and preclude summary
judgment even if it is self-serving and uncorroborated.” 	United States v.
Stein, 881 F.3d 853, 854 (11th Cir. 2018). Thus, when viewed in the light
most 	favorable 	to 	Defendant, 	“the 	evidence 	presents 	a 	sufficient
disagreement to require submission to a jury.” 	Anderson, 477 U.S. at
248.
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IV. 	Conclusion
For the reasons above, it is respectfully RECOMMENDED that
Plaintiff’s motion for summary judgment, (Doc. 32), be DENIED.
At Pensacola, Florida this 21st day of January 2026.
/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 	this 	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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