BURGESS

v.

JONES

I. Status

Plaintiff Johnny Burgess initiated this action on March 29, 2017, by filing a pro se Civil Rights Complaint (Doc. 1; Complaint). After the Court dismissed the claims against the Secretary of the Florida Department of Corrections (FDOC) and the prison warden, see Order (Doc. 13), two Defendants remain: Jonathan Jorge and FNU Rouse, corrections officers at Lake Correctional Institution (LCI). In his Complaint, Plaintiff asserts Defendants failed to protect him from an inmate attack in violation of the Eighth Amendment. See Complaint at 5. As relief, Plaintiff seeks compensatory and punitive damages. Id. at 7-8. Before the Court is Defendants’ Motion for Summary Judgment (Doc. 102; Motion). In support of their Motion, Defendants provide Plaintiff’s FDOC face sheet (Doc. 118-1); a provision of the Florida Administrative Code (Doc. 118-2); an FDOC incident report dated July²³, 2015 (Doc. 118-3; Incident Report); an investigative report by the Inspector General’s Office (Doc. 118-4; IG Report); Defendant Jorge’s affidavit (Doc. 118-5; Jorge Aff.); Defendant Jorge’s responses to Plaintiff’s interrogatories (Doc. 118-6; Jorge Interr. Resp.); the transcript of the inspector’s interview with Defendant Jorge (Doc. 118-7; Jorge Interview Tr.); the affidavit of Defendant Rouse (Doc. 118-8; Rouse Aff.); Defendant Rouse’s responses to Plaintiff’s interrogatories (Doc. 118-9; Rouse Interr. Resp.); the transcript of the inspector’s interview with Plaintiff (Doc. 118-10; Pl. Interview Tr.); a MINS report dated July 20, 2015 (Doc. 118-11); copies of Plaintiff’s grievances and responses (Doc. 118-12); excerpts of Plaintiff’s deposition transcript (Doc. 118-13; Depo. Tr.); an FDOC disciplinary report against Plaintiff dated July²³, 2015 (Doc. 118-14); and Plaintiff’s medical records (Doc. 118-15; Med. Records). Plaintiff responded to the Motion (Doc. 108; Response), with exhibits, most of which are duplicative of evidence Defendants offer, including his deposition transcript, Defendants’ responses to his interrogatories, and his medical records. See Response at 12-13 (Plaintiff’s index of exhibits).¹ Plaintiff also offers his own affidavits, the affidavits of two other inmates, multiple sick-

II. Summary Judgment Standard

Under Rule 56, “[t]he 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). An issue is genuine when the evidence is such that a reasonable jury could return a verdict in favor of the nonmovant. Mize v. Jefferson City Bd. of Educ., 93 F. 3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville Sun Publ’g Co., 9 F. 3d 913, 919 (11th Cir. 1993)). “[A] mere scintilla of evidence in support of the non-moving party’s position is insufficient to defeat a motion for summary judgment.” Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F. 3d 1243,

1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). The party seeking summary judgment bears the initial burden of demonstrating to the court, by reference to the record, that there are no genuine issues of material fact to be determined at trial. See Clark v. Coats & Clark, Inc., 929 F. 2d 604, 608 (11th Cir. 1991). The record to be considered on a motion for summary judgment may include “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Rule 56(c)(1)(A). “When a moving party has discharged its burden, the non-

moving party must then go beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F. 3d 590, 593–94 (11th Cir. 1995) (internal citations and quotation marks omitted). Substantive law determines the materiality of facts, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. In determining whether summary judgment is appropriate, a court “must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment.” Haves v. City of Miami,⁵² F. 3d 918, 921 (11th Cir. 1995) (citing Dibrell Bros. Int’l, S.A. v. Banca Nazionale Del Lavoro, 38 F. 3d 1571, 1578 (11th Cir. 1994)). III. Plaintiff’s Allegations² In his Complaint, Plaintiff alleges Defendant Jorge orchestrated a plan to have another inmate attempt to kill him. See Complaint at 6. The incident occurred on July²³, 2015, in the mental health unit at LCI. Id. at 5. While Plaintiff was attending a mental health “group” session, another inmate, Martavius

Henderson, stabbed Plaintiff with a shank/knife (“weapon”) (“the stabbing incident”). Id. at 5, 6. Plaintiff states he told both Defendants that Henderson had a weapon and would kill Plaintiff if the two inmates were “allowed in the group room” together Id. at

5.

In his first of two affidavits, Plaintiff avers he had been in fear of Henderson since Henderson attacked him the week before the stabbing incident (“the first incident”). See Response at 15. On the morning of the stabbing incident, inmate Henderson, from his cell, showed Plaintiff he had a weapon, and Henderson threatened to kill Plaintiff with it. Id. At that time, Defendant

Jorge and the mental health official were on the wing to determine

Trimanye was moved to another wing of the prison. Id. at 24. However, he says he later “heard of staff allowing Henderson into the [mental health] group with a weapon,” which resulted in Plaintiff’s stabbing. According to Trimanye, the mental health official overheard Plaintiff warn Defendant Rouse of Henderson’s threat and possession of a weapon. Id. The mental health official told Trimanye he did not report what he overheard because he was scared to lose his job. Id. Trimanye, in a second affidavit, explains he was later transferred to two different correctional institutions along with Henderson. Id. at 27. He avers the following:

Henderson bragged . . . about how he had almost killed [Plaintiff] and gotten away with it … because officers did not like [Plaintiff] so they covered up the evidence… [P]lus Henderson bragged about how [Plaintiff] had snitched and forewarned officers Jorge and Rouse that he had a knife but they wouldn’t listen to him …. Henderson stated that he consulted with officer Jorge to leave his handcuffs on 1 click so that he could easily slide his hands out of the handcuffs and jump on [Plaintiff] and officer Jorge agreed. Id. at 27-28. Henderson also stated, however, Defendant Jorge did not know Henderson had a weapon; Defendant Jorge “only wanted Henderson to jump on [Plaintiff,] not stab him.” Id. at 28.

IV. Summary of the Arguments

In their Motion, Defendants argue there is no evidence demonstrating they were deliberately indifferent to a serious risk of harm, they are entitled to qualified immunity, and Plaintiff cannot recover compensatory or punitive damages under 42 U.S.C. § 1997e(e). See Motion at 13, 16, 17. Additionally, Defendants assert Eleventh Amendment protects them from damages in their official capacities. Id. at 15. Defendants argue there is no evidence they knew of the first incident between inmate Henderson, and Plaintiff initiated the stabbing incident, thus causing his own injury. Id. at 13. Defendants state, “[t]here is no evidence to support Plaintiff’s assertion that [they] knew ahead of time that Inmate Henderson intended to attack Plaintiff.” Id. In their Reply, Defendants contend Plaintiff “can show no evidence” they knew Henderson posed a threat of harm to Plaintiff. Reply at 3. They reason, “Defendants did not place Plaintiff in any vulnerable position or at risk because Plaintiff himself initiated the attack.” Id. Defendants rely in part upon internal FDOC records and their own statements. In the incident report, the reporting employee recorded, “[Defendant] Jorge informed me during this group session [Plaintiff] . . . stood up out of his chair and charged at Inmate Henderson . . . . [who] stabbed [Plaintiff] in the neck with a homemade knife.” Incident Report at 1. Defendants aver in their affidavits that they saw Plaintiff rush at Henderson. Defendant Jorge states, Plaintiff “aburuptly jumped out of his chair and charged Henderson.” Jorge Aff. at 4. According to Defendant Rouse,

“[P]laintiff stood up and charged at Inmate Henderson and attempted to fight him.” Rouse Aff. at 3. Defendants also rely upon Plaintiff’s deposition testimony and his statements to the inspector who investigated the incident on behalf of the Inspector General’s Office. In his deposition, Plaintiff testified he “rushed” at Henderson when Henderson walked into the group room. Depo. Tr. at 6. Plaintiff told the inspector he knew Henderson had a weapon but “still had an altercation with him.” Pl. Interview Tr. at 5. Additionally, Plaintiff informed the inspector he (Plaintiff) told Henderson to bring the weapon with him to group because Plaintiff wanted the officers to catch

Henderson with it. Id. at 6. The inspector referred the matter to the State Attorney’s Office. IG Report at 12. The State Attorney’s Office declined to prosecute Henderson, stating “the victim [Plaintiff] was the individual who instigated the fight in a rather calculated way to get the suspect [Henderson] in trouble.” Id. at

14.

Defendants explain in their affidavits the process for moving inmates from their cells to the group room. On the day in question, Rouse strip-searched Plaintiff and escorted him to the group room. See Rouse Aff. at 2. Defendant Jorge avers he strip-searched Henderson and brought him to the group room after Plaintiff was already there. See Jorge Aff. at 3-4. See also Jorge Interr. Resp. ¶ 24 (stating Defendant Jorge searched Inmate Henderson “prior to pulling him out for group”). Defendants deny any recollection or knowledge of the first incident between Plaintiff and Henderson. See Jorge Aff. at 1-2; Rouse Aff. at 3; Jorge Interr. Resp. ¶ 10; Rouse Interr. Resp. ¶ 10. However, neither Defendant directly disputes Plaintiff informed them, prior to the stabbing incident, that Henderson had a weapon and planned to harm Plaintiff during group. See Jorge Aff. at 3-4; Rouse Aff. at 3. In response to the Motion, Plaintiff asserts he did not instigate the stabbing incident. He acknowledges he told the inspector and testified during deposition that he rushed at

Henderson. But he explains he did so to protect himself because he realized Defendants were not going to do so. See Pl. Interview Tr. at 5; Depo. Tr. at 6. During the interview with the inspector, Plaintiff admitted he had the altercation with Henderson knowing Henderson had a weapon, but he explained why: I told the [prison guards] – before I came out because I knew [Henderson] had [the weapon]. I knew he was gonna brang [sic] it. So what I did was I try to set him up. I told him make sure he brang [sic] it at the group with him. So when I came out, I told the police [prison guards] so they can catch him with it. But . . . Officer Jorge . . . me and him had a problem . . . . I tried to tell him, I said, “Man, dude got a knife, you know what I’m saying, he gonna try to do something to me,” but he – I don’t know. He overlooked it.

Then I told the officer in the group home . . . but he was saying something about don’t worry about it, he ain’t gonna let nothing happen. Ain’t gonna be a fight. They gonna break it up regardless, so.

Pl. Interview Tr. at 5-6. In his deposition, Plaintiff testified he “rushed” at inmate Henderson because he believed the guards were not going to protect him even though he told them inmate Henderson was planning to bring a weapon to group. See Depo. Tr. at 6, 8. He elaborated that he told the guards Henderson had a weapon and that the two of them had a prior altercation, but “[the guards] let [Henderson] out of his cell with th[e] [weapon].” Id. at 9. Plaintiff agreed he was “trying to set up Henderson,” but he disagreed with the characterization of him as the “instigator,” saying he “was trying to get [the guards] to disarm [Henderson].” Id. at 8. Plaintiff testified as follows: I told the [guard] when [Henderson] showed [the weapon] to me, I told him before they pulled me in group. That’s when I found out that morning, so I was like, Man, he got the shank, hoping they go search him and take the shank from him, but they just – that’s how I thought it was going to turn out. . . . Usually . . . if an inmate say that, especially in that type of environment, because it’s a mental health treatment facility, so it’s kind of treated – it’s like different from everywhere else, so like you tell the officer, Man, that inmate got a knife, they going to search him down or something, but they just ignored it . . . .

Id. Plaintiff explains he believed if he told the prison guards Henderson had a weapon, they would search Henderson and confiscate the weapon, thereby protecting Plaintiff from the planned attack. Id. Legal Analysis & Conclusions of Law

A. Eleventh Amendment Immunity

Defendants assert they are entitled to Eleventh Amendment immunity as to any claims against them for damages in their official capacities. See Motion at 15. Plaintiff does not address this argument. See Response. When a plaintiff sues a state actor in his official capacity, “the action is in essence one for the recovery of money from the state.” Zatler v. Wainwright, 802 F. 2d 397, 400 (11th Cir. 1986). As such, “the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.” Id. (finding the FDOC Secretary was immune from suit in his official capacity). Defendants are entitled to Eleventh Amendment immunity as to any claim against them for monetary damages in their official capacities. To that extent, Defendants’ motion is due to be granted.

B. Qualified Immunity

An officer sued in his individual capacity “is entitled to qualified immunity for his discretionary actions unless he violated ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’” Black v. Wigington, 811 F. 3d 1259, 1266 (11th Cir. 2016) (quoting Case v. Eslinger, 555 F. 3d 1317, 1325 (11th Cir. 2009)). Qualified immunity allows officers to exercise their official duties without fear of facing personal liability. Alcocer v. Mills, 906 F. 3d 944, 951 (11th Cir. 2018). The doctrine protects all but the plainly incompetent or those who knowingly violate an inmate’s constitutional rights. Id. Upon asserting a qualified immunity defense, a defendant bears the initial burden to demonstrate he was acting in his discretionary authority at the relevant times. Dukes v. Deaton,

852 F. 3d 1035, 1041-42 (11th Cir.), cert. denied, 138 S. Ct. 72 (2017). For purposes of this motion, the Court accepts Defendants’ assertions that they were acting within the scope of their discretionary duties at the time of the stabbing incident. See Motion at 16.4 As such, the burden shifts to Plaintiff. To overcome

of his discretionary duties; however, Plaintiff does not directly address this contention in his Response. Thus, to establish an Eighth Amendment violation, an inmate must show a prison official “actually (subjectively) knows that an inmate is facing a substantial risk of serious harm, yet disregards that known risk by failing to respond to it in an (objectively) reasonable manner.” Rodriguez v. Sec’y for Dep’t of Corr., 508 F. 3d 611, 617 (11th Cir. 2007) (citing Farmer, 511 U.S. at 837,

844). A prison official subjectively knows of a risk of harm to an inmate when he “disregards an excessive risk to [the] inmate’s health or safety.” Farmer, 511 U.S. at 837. “The known risk of injury must be a ‘strong likelihood, rather than a mere possibility’ before a guard’s failure to act can constitute deliberate indifference.” Brown v. Hughes, 894 F. 2d 1533, 1537 (11th Cir. 1990). “Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from the circumstantial evidence.” Rodriguez, 508 F. 3d at 617 (emphasis in original) (quoting Farmer, 511 U.S. at 843).

Furthermore, “an Eighth Amendment claimant need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Thus, a jury need not infer that the defendants intended that [the aggressor- inmate] harm [the plaintiff] or that they actually believed that [the aggressor-inmate] would harm [the plaintiff]. It is enough that a jury be able to infer from the evidence that the defendants actually knew of a substantial risk that [the aggressor-inmate] would seriously harm [the plaintiff]. Caldwell v. Warden, FCI Talladega, 748 F. 3d 1090, 1102 (11th Cir. 2014) (internal citations omitted) (emphasis in original). Generally, where a plaintiff presents evidence that he reported to the defendants only a vague, generalized fear of harm, summary judgment may be appropriate. See, e.g., Carter v. Galloway, 352 F. 3d 1346, 1349 (11th Cir. 2003). For example, in Carter, the court held the plaintiff presented no evidence “of a particularized threat or fear” because he did not tell the defendants he feared his cellmate or his cellmate had directly threatened him, and he did not request protection. Id. at 1348, 1350. The plaintiff only demonstrated prison officials knew his cellmate was a “problem inmate,” had been roaming the cell like a “caged animal,” intended to fake a hanging, and told the plaintiff he (the plaintiff) would help fake the hanging “one way or another.” Id. at 1348. See also Losey v. Thompson, 596 F. App’x 783, 789 (11th Cir. 2015) (holding no Eighth Amendment violation because the plaintiff did not allege a prior attack by the aggressor-inmate, and the plaintiff did not state he notified any officer or the defendant that he was in danger). On the other hand, where a plaintiff presents evidence of a particularized, well-founded fear, summary judgment is not warranted. Rodriguez, 508 F. 3d at 619; Caldwell, 748 F. 3d at 1102. In Rodriguez, the court vacated summary judgment in the defendant’s favor because the parties disputed material facts: whether the plaintiff informed the defendant he feared his life was in danger and he needed protection or transfer. 508 F. 3d at 619. In a declaration, the plaintiff averred he orally reported the threat to the defendant at least twice, and he submitted an inmate request form stating he needed protection. Id. at 618-19. The defendant, however, denied having had “security-related conversations” with the plaintiff and having knowledge of the plaintiff’s grievance. Id. at 619. See also Caldwell, 748 F. 3d at 1101 (finding a jury reasonably could infer the defendants had subjective knowledge of a risk of harm where the plaintiff expressed he feared his cellmate and the fear was “well-founded” because the cellmate set fire to the cell earlier in the day). ii. Plaintiff’s Reports of a Threat of Harm To overcome Defendants’ assertion of qualified immunity, Plaintiff must demonstrate at least a genuine issue of material fact as to whether Defendants were deliberately indifferent to a known risk of serious harm. “Because § 1983 ‘requires proof of an affirmative causal connection between the official’s acts or omissions and the alleged constitutional deprivation,’ each defendant is entitled to an independent qualified-immunity analysis as it relates to his or her actions and omissions.” Id. (quoting Zatler, 802 F. 2d at 401). As such, the Court will analyze Plaintiff’s allegations against each Defendant. As to Defendant Jorge, Plaintiff tells the following narrative, which this Court must accept as true. On the morning of group, Defendant Jorge was present on the wing in his role as “administrative officer,” whose duties were to “be the security and supervising staff for the counsellors, psychologists and psychiatrists.” See Jorge Aff. at 2. Plaintiff’s cell on the mental health wing was close to Henderson’s cell. Pl. Response at 15. While in their cells, Henderson threatened Plaintiff and showed Plaintiff a weapon he planned to use to carry out his threat. Id. Out of fear, Plaintiff informed Defendant Jorge about Henderson’s threat, whispering a warning to Jorge and holding up a sign saying Henderson had a weapon. Id. at 15, 16. Plaintiff reported the threat to Defendant Jorge believing Jorge knew about the first incident between him and Henderson. The first incident was described as “the talk of the mental health unit.” Pl. Response at