MENDOZA

v.

DIXON

This Court has considered, without hearing, the Magistrate Judge’s Report and Recommendation, ECF No. 197, and has also reviewed de novo Plaintiff’s objections, ECF No. 198. For the reasons that follow, the Report and Recommendation is ACCEPTED in part and REJECTED in part. Defendants’ motion for summary judgment, ECF No. 175, is GRANTED in part and DENIED in part. Plaintiff’s primary objection is that he raised genuine disputes of material fact that should preclude summary judgment on his Eighth Amendment failure-to-protect claim and his First Amendment retaliation claims. ECF No. 198 at 6–7. While a close call, this Court agrees. Plaintiff has raised genuine disputes of material fact on both claims, so this Court rejects the Magistrate Judge’s recommendation that Defendants be awarded summary judgment on those grounds. This Court also rejects the Magistrate Judge’s recommendation that Defendants be entitled to qualified immunity. This Court accepts, however, the remainder of the Magistrate Judge’s recommendations.

I Summary judgment is appropriate when “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). “Material” facts are those that might affect the outcome of the case under the governing substantive law, not those that “are irrelevant or unnecessary.” Id. (citation omitted). Failure by the nonmoving party to prove an essential element of its case, for which it has the burden of proof at trial, entitles the moving party to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

A First, Plaintiff’s Eighth Amendment deliberate indifference claim against Defendants Mote and Tom. The Magistrate Judge recommended that Defendants be awarded summary judgment because Plaintiff failed to point to any facts indicating that Defendants knew “Mendoza (or anyone) faced a substantial risk of serious harm that was more than just a mere possibility of serious harm.” ECF No. 197 at 24. This

Court disagrees and finds that Plaintiff raises a genuine dispute of material fact as to all elements of his failure-to-protect claim. A prison official’s alleged failure to protect an inmate from a substantial risk of harm violates the Eighth Amendment when the official acts with deliberate indifference. “To survive summary judgment in a case alleging deliberate indifference, a plaintiff must ‘produce sufficient evidence of (1) a substantial risk of serious harm; (2) the defendants’ deliberate indifference to that risk; and (3) causation.’ ” Goodman v. Kimbrough, 718 F. 3d 1325, 1331 (11th Cir. 2013) (quoting Carter v. Galloway, 352 F. 3d 1346, 1349 (11th Cir. 2003) (per curiam)). Plaintiff has shown a genuine dispute of material fact on the substantial risk of serious harm element. In his sworn complaint, which this Court must consider for purposes of summary judgment, see Sears v. Roberts, 922 F. 3d 1199, 1208 (11th Cir. 2019),1 Plaintiff alleges that at the time he was assaulted, he was housed with security-threat inmates in gangs that target transgender and gay individuals with violence. ECF No. 33 at 8; see also ECF No. 175-3 at 32. Plaintiff is transgender

Goodman, 718 F. 3d at 1332. “Whether prison officials had the requisite awareness of the risk ‘is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.’ ” Id. (quoting Farmer, 511 U.S. at 842). By the slenderest of reeds, Plaintiff has come forward with sufficient evidence to show that Defendants had the requisite awareness of his substantial risk of harm.²

As set out above, Plaintiff makes sworn factual allegations that illustrate an obvious danger that transgender, gay inmates like Plaintiff face when housed with high-risk inmates in allegedly notorious gangs that target such prisoners with violence.

Plaintiff also alleges that, after he reported the assault, Defendants Mote and Tom commented that Plaintiff would not have been attacked if he were not gay. ECF No. 33 at 11; ECF No 175-3 at 19, 29.3 Despite this apparent knowledge of the dangerous conditions in Plaintiff’s housing unit, Defendants Mote and Tom failed to man their posts, leaving Plaintiff and another inmate subject to attack from the high-risk inmates. See ECF No. 175-3 at 25–26. This obvious risk, combined with Defendants

3At his deposition, Plaintiff alleges that both Defendant Mote and Defendant Tom made comments to this effect, ECF No. 175-3 at 19, before noting later that Defendant Tom was not present for some part of the exchange, id. at 29. While these allegations could be read to contradict each other, this Court must view the evidence in the light most favorable to Plaintiff as the nonmovant and draw all reasonable inferences in his favor. From this testimony, this Court draws the reasonable inference that both Defendants made comments regarding Plaintiff’s sexuality and its role in his attack, with Defendant Mote making additional comments separate from Defendant Tom at some point in the exchange. Mote and Tom’s alleged statements after Plaintiff’s attack implying they knew of his risk, would permit a reasonable jury to find that Defendants Mote and Tom had subjective knowledge of a risk of serious harm and disregarded that risk by conduct that was more than negligent. Finally, Plaintiff has produced sufficient record evidence to create a genuine dispute of material fact on the causation element of his deliberate indifference claim. In his deposition, Plaintiff explains that the unmanned guard station was surrounded by glass and “feet away” from the bathroom where he was assaulted. ECF No. 175- 3 at 27. While Plaintiff does not estimate how long the assault in the bathroom took place, the assault involved other inmates taking the few items in Plaintiff’s possession, forcing him to disclose the passcode to his locker, dispatching other inmates to steal items from Plaintiff’s locker, receiving confirmation that the locker had been cleared out, and moving Plaintiff to a different area of the bathroom to sexually assault him. In plain terms, this was not a brief incident. From this evidence, a reasonable jury could conclude that if Defendants Mote and Tom had been at their duty stations, Plaintiff would not have been assaulted.

Accordingly, Defendants’ motion for summary judgment as to Plaintiff’s Eighth Amendment claim fails because he has made out genuine disputes of material fact as to all three elements of the claim. B Next, Plaintiff’s First Amendment retaliation claim against Defendant Cruz.

The Magistrate Judge recommended that Defendant Cruz be awarded summary judgment because Plaintiff failed to come forward with evidence that he suffered an adverse effect. ECF No. 197 at 25–26. This Court disagrees and finds that Plaintiff raises a genuine dispute of material fact as to all elements of his retaliation claim. “An inmate may maintain a cause of action for retaliation under 42 U.S.C. § 1983 by showing that a prison official’s actions were ‘the result of [the inmate’s] having filed a grievance concerning the conditions of his imprisonment.’ ” O’Bryant v. Finch, 637 F. 3d 1207, 1212 (11th Cir. 2011) (quoting Farrow v. West, 320 F. 3d 1235, 1248 (11th Cir. 2003)). To prevail on a retaliation claim, an inmate must establish that: “(1) his speech was constitutionally protected; (2) the inmate suffered adverse action such that the [official’s] allegedly retaliatory conduct would likely deter a person of ordinary firmness from engaging in such speech; and (3) there is a causal relationship between the retaliatory action [the disciplinary punishment] and the protected speech [the grievance].” O’Bryant, 637 F. 3d at 1212 (quoting Smith v. Mosley, 532 F. 3d 1270, 1276 (11th Cir. 2008)). Plaintiff points to sufficient evidence on the first element, noting that he reported his assault to corrections officers and filled out a written statement. ECF

No. 175-3 at 11–12. Lodging such a grievance with prison officials “is unquestionably a constitutionally protected act.” Bates v. Anderson, No. CV210- 088, 2011 WL 2550466, at *4 (S.D. Ga. May 9, 2011), report and recommendation adopted, No. CV210-088, 2011 WL 2550365 (S.D. Ga. June 27, 2011). Plaintiff also comes forward with enough evidence to raise a genuine dispute of material fact on the second element of his retaliation claim—that a person of ordinary firmness would likely be deterred from reporting his sexual assault. This standard is an objective one, focusing not on whether Plaintiff was deterred, but instead on whether a person of ordinary firmness would be deterred from engaging in protected speech. See Bennett v. Hendrix, 423 F. 3d 1247, 1254 (11th Cir. 2005);

Hall v. Martin, No. 5:19-CV-471-TKW/MJF, 2021 WL 2420149, at *5 (N.D. Fla. May 21, 2021), report and recommendation adopted, No. 5:19-CV-471-TKW/MJF, 2021 WL 2416372 (N.D. Fla. June 14, 2021).

Here, Plaintiff submits evidence showing that after he reported his sexual assault at the hands of other inmates, Defendant Cruz slapped him several times, all while Plaintiff was restrained, and directed him to withdraw his report. ECF No. 33 at 16; ECF No. 175-3 at 20–21. In Plaintiff’s telling, Defendant Cruz also threatened to “to have an inmate put in the cell with [Plaintiff] to get [him] beat up . . . .” ECF No. 175-3 at 20. After this interaction, Plaintiff was placed in protective custody, meaning that no other inmates should have been housed with him.⁴ See id. at 22–23. Nevertheless, an inmate was soon placed in Plaintiff’s cell. Id. The inmate was larger in size than Plaintiff and was awaiting reassignment following a disciplinary issue in another facility that prompted a use of force from correctional officers. Id. In sum, Plaintiff submitted sworn allegations and testimony describing

Defendant Cruz physically assaulting him, demanding that he withdraw his report of sexual assault, and threatening to assign an inmate to be housed with Plaintiff and beat him up. After this exchange, an inmate was placed in Plaintiff’s cell, despite his being in protective custody, in line with Defendant Cruz’s threat. Defendant Cruz’s alleged battery of Plaintiff, his threats, and his attempt to carry out the threat would permit a reasonable jury to find that a reasonable person would be deterred from reporting a sexual assault to prison officials.⁵

Cruz did not retaliate against Plaintiff for reporting a sexual assault. But at the summary judgment stage, this Court must take Plaintiff’s evidence as true and draw all justifiable inferences in his favor. See Anderson, 477 U.S. at 255. Here, Plaintiff’s sworn allegations in his complaint and deposition testimony raise a genuine dispute of material fact as to whether a reasonable person would be deterred from engaging in protected conduct following Defendant Cruz’s alleged actions. Plaintiff also comes forward with sufficient evidence on the causal connection element of his retaliation claim. “To establish causation, the plaintiff must show that the defendant was ‘subjectively motivated to discipline’ the plaintiff for exercising his First Amendment rights.” Moton v. Cowart, 631 F. 3d 1337, 1341 (11th Cir. 2011) (quoting Smith v. Mosley, 532 F. 3d 1270, 1278 (11th Cir. 2008)). Here, as set out above, Plaintiff avers that Defendant Cruz made specific threats linking the promised harm to his sexual assault report. Plaintiff also alleges that Defendant Cruz regulations . . . .” 545 U.S. at 221. Setting aside this distinction, Plaintiff’s claim involves First Amendment retaliation, and courts regularly find that changes in inmate housing can qualify as an adverse effect. See Hall, 2021 WL 2420149 at *5 (collecting cases). interspersed his demands that Plaintiff withdraw the sexual assault report with physical strikes. This sequence of events would permit a reasonable jury to find that

Defendant Cruz was motivated to discipline Plaintiff for exercising his First Amendment right to report a sexual assault.⁶ Accordingly, Plaintiff has demonstrated a genuine dispute of material fact as to all three elements of his First

Amendment retaliation claim, and Defendant Cruz’s motion for summary judgment on this claim fails. II Having addressed Defendants’ motion for summary judgment on its merits,

this Court must now turn to whether Defendants are entitled to qualified immunity. Qualified immunity is a shield from liability for government actors, prohibiting “civil damages for torts committed while performing discretionary duties unless their conduct violates a clearly established statutory or constitutional right.” Hadley v. Gutierrez, 526 F. 3d 1324, 1329 (11th Cir. 2008) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). An official asserting qualified immunity must first prove that he or she was acting within the scope of his or her “discretionary authority at the time of the alleged constitutional violation.” Morris v. Town of Lexington, 748 F. 3d

One way for Plaintiff to show that the law is clearly established is to point to a “broader, clearly established principle [that] should control the novel facts [of the] situation.” Terrell v. Smith, 668 F. 3d 1244, 1255 (11th Cir. 2012) (internal citation omitted). In plain terms, the Supreme Court and the Eleventh Circuit have clearly established the broad principles that corrections officers cannot act with deliberate indifference to a substantial risk of violence faced by an inmate nor can they retaliate against that inmate for filing a grievance. Those broad principles should control the facts here. For the Eighth Amendment deliberate indifference claim against Defendants Mote and Tom, the Supreme Court’s decision in Farmer sets forth the broad principle that failing to take reasonable steps to protect a transgender inmate when there is a substantial threat of harm from other inmates violates the Eighth Amendment. This broad, clearly established principle should have put Defendants

Mote and Tom on notice that, in a dorm where gay and transgender inmates are housed with security-risk inmates belonging to gangs that target gay and transgender individuals, abandoning an officer station near the bathroom for at least several minutes violates the Eighth Amendment. Cf. Scott v. Miami Dade Cnty., 657 F. App'x 877, 885 (11th Cir. 2016) (holding Farmer established broad principle putting corrections officers on sufficient notice for qualified immunity purposes that doing nothing in face of threat to inmate from other inmates violates Eighth Amendment).

For the First Amendment retaliation claim, the Eleventh Circuit’s holding in Bennett makes clear that, “since at least 1988 . . . it is ‘settled law’ that the government may not retaliate against citizens for the exercise of First Amendment rights.” 423 F. 3d at 1256. This broad, clearly established principle should have put

Defendant Cruz on notice that physically striking Plaintiff, in addition to threatening (and apparently attempting) to have an inmate beat Plaintiff up if he did not withdraw his sexual assault report, qualifies as First Amendment retaliation. Accordingly, this Court finds that Plaintiff has demonstrated a violation of his First and Eighth Amendment rights and that these rights were clearly established when the violations in question occurred. Thus, Defendants are not entitled to qualified immunity at this stage.

III

This Court finds no error in the remainder of the Magistrate Judge’s recommendations. Accordingly, this Court adopts the Magistrate Judge’s following recommendations: • Defendants’ exhaustion defenses are moot or otherwise untimely;

• Defendants are entitled to Eleventh Amendment immunity from official capacity claims; and • Plaintiff’s state law property claims have already been properly dismissed.

IV This Court is sympathetic to the difficulties corrections officers face in balancing their duty to protect inmates while also maintaining order, all with limited resources. This Court also notes that Defendants’ version of events may well be true, which would doom Plaintiff’s claims. But at the summary judgment stage, this Court cannot weigh evidence and supplant the role of the factfinder. Here, while a close call, Plaintiff has come forward with sufficient evidence to defeat Defendants’ motion for summary judgment. Accordingly,

IT IS ORDERED: 1. The Report and Recommendation, ECF No. 197, is ACCEPTED in part and REJECTED in part.

2. Defendants’ motion for summary judgment, ECF No. 175, is GRANTED in part and DENIED in part. 3. Defendants’ motion for summary judgment is GRANTED as to their entitlement to Eleventh Amendment immunity from official capacity claims,

and Plaintiff’s state law property claims have already been properly dismissed. 4. Defendants’ motion for summary judgment is DENIED as to Plaintiff’s First

Amendment and Eighth Amendment claims, as well as to their entitlement to qualified immunity. 5. This Court does not direct entry of judgment on the issues decided in this Order under Federal Rule of Civil Procedure 54(b).

6. The Clerk is DIRECTED to set this matter for a pretrial conference and trial. SO ORDERED on September⁵, 2023.

s/Mark E. Walker ____ Chief United States District Judge