Robinson v. Larson

CHARLES BERNARD ROBINSON, JR., Plaintiff, v. D. LARSON, et al., Defendants.

Case No. 3:13cv387-LC-CJK

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

August 31, 2017

ORDER and REPORT AND RECOMMENDATION

This prisoner civil rights case is before the court on defendants' motion for summary judgment. (Docs. 157, 161, 166). Plaintiff responded in opposition (docs. 167, 169), defendants filed a reply (doc. 170), and plaintiff filed a surreply (doc. 172). The matter is referred to the undersigned Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(C). After reviewing the record, the parties' submissions, and the relevant law, the undersigned recommends that the motion for summary judgment be granted in part and denied in part.

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff, proceeding pro se and in forma pauperis, is an inmate of the Florida Department of Corrections ("FDOC") currently confined at Florida State Prison. He initiated this action by filing a civil rights complaint pursuant to 42 U.S.C. § 1983. (Doc. 1). In May 2015 he filed the fourth amended complaint, the operative pleading in this action. (Doc. 92). At the time of the events described in the complaint, plaintiff was incarcerated at Santa Rosa Correctional Institution ("SRCI") in Milton, Florida. The complaint names 3 employees of SRCI as defendants: Sergeant Larson, Lieutenant Delapp, and Nurse Martin.

Three of plaintiff's claims remain pending following the resolution of defendants' motion to dismiss. (Docs. 113, 114). Plaintiff alleges: (1) Larson violated the Eighth Amendment by placing plaintiff in a cold cell in December 2011; (2) Larson and Delapp violated the Eighth Amendment by spraying plaintiff with chemical agents on December 3, 2011; and (3) Larson, Delapp, and Martin violated the Eighth Amendment by denying plaintiff mental health treatment on December 3, 2011. As relief, plaintiff seeks nominal and punitive damages.

FACTS

The facts pertinent to the resolution of the defendants' motion are drawn from plaintiff's verified fourth amended complaint and the evidence in the summary judgment record. See Perry v. Thompson, 786 F.2d 1093, 1095 (11th Cir. 1986) (holding specific facts pled in a sworn complaint must be considered in opposition to a motion for summary judgment). Where the parties offer conflicting accounts of the events in question, the court "sets forth the facts, drawn from the evidence presented, in the light most favorable to the plaintiff." Snow ex rel. Snow v. City of Citronelle, 420 F.3d 1262, 1265 (11th Cir. 2005). Nevertheless, matters stated below as "facts" for purposes of summary judgment review may not be the actual facts. See Montoute v. Carr, 114 F.3d 181, 182 (11th Cir. 1997).

Plaintiff was housed in cell F3215 at SRCI. (Doc. 167, p. 58-59). On December 1, 2011 at 9:00 a.m., plaintiff told Officer Jankowski he was experiencing a psychological emergency. (Doc. 157-7, p. 3-4, 7; Doc. 167, p. 58). He told multiple correctional officers, including defendant Larson, that he was having homicidal and suicidal thoughts. (Doc. 157-7, p. 7; Doc. 161-1, p. 1). Plaintiff was escorted from his cell to a shower unit. (Doc. 167, p. 58). Larson then placed plaintiff on property restriction, which entailed: (1) removing all of plaintiff's clothing except his underwear and shower slides; and (2) transferring plaintiff's cellmate and removing plaintiff's property from his cell. (Doc. 157-7, p. 4-5; Doc. 167, p. 59). Larson also threatened plaintiff, stating that if plaintiff "wants to play mind games and overwork [Larson], . . . plaintiff will be placed on a 'special management meal' and written a disciplinary report[.]"¹ (Doc. 167, p. 59).

While still in the shower stall, plaintiff met with Jeffrey Arney, a mental health specialist, at 10:00 a.m. (Doc. 167, p. 58). Plaintiff described having suicidal andhomicidal thoughts; Arney then "walked away to confer with" Larson and defendant Delapp. (Doc. 157-7, p. 5-6; Doc. 167, p. 59-60). Arney returned to the shower unit and told plaintiff he was being placed on 72-hour self-harm observation status ("SHOS"); plaintiff, however, later learned he was not placed on SHOS.² (Doc. 167, p. 59-60).

After meeting with Arney, plaintiff was placed in the propertyless cell; the cell had "a broken window that wouldn't completely close[.]" (Doc. 92, p. 8; Doc. 167, p. 58-60). He remained in the cell on property restriction from December 1 to December 6. (Doc. 167, p. 60).

At approximately 9:00 a.m. on December 3, 2011, Larson and Delapp approached plaintiff's cell and threatened him. (Doc. 92, p. 8). They told plaintiff that they would only use 2 cans of chemical agents on him if he took the agents "to the face head up." (Doc. 92, p. 9). Larson and Delapp retrieved a handheld camera in preparation for using chemical agents. (Doc. 157-2, p. 2). Officer Jacobsen operated the camera. (Doc. 157-2, p. 2). The handheld video footage began at 9:50 a.m.³

Outside the presence of plaintiff, Delapp and Larson describe on the video events that purportedly preceded the recording. Delapp states plaintiff was creating a disturbance by kicking his cell door and yelling obscenities at staff. Larson indicates he: (1) counseled plaintiff and ordered him to cease his disruptive behavior, but plaintiff refused to comply; and (2) informed Delapp about the situation. Delapp states he also spoke with plaintiff and unsuccessfully asked plaintiff to cease the behavior.

Larson and Delapp then enter the dormitory and walk to plaintiff's cell. Delapp tells plaintiff that he is being given a final order to cease his disruptive behavior and no more warnings will be given before the officers use chemical agents. At that point, plaintiff began stating he was going to kill himself and the officers were retaliating against him. (Doc. 157-7, p. 13-14). He then declared a psychological and medical emergency. (Doc. 157-2, p. 2; Doc. 157-5, p. 14).

After plaintiff declared the emergency, Delapp and Larson summoned Nurse Martin to respond to the medical emergency. (Doc. 157-4, p. 1; Doc. 157-7, p. 16). Plaintiff subsequently told Larson he had a razor and showed it to Larson. (Doc. 157-7, p. 16-17).

When Martin arrived, plaintiff told her he had blood in his urine, which he attributed to kidney stones. (Doc. 157-4, p. 1). Martin asked if plaintiff had been seen by medical staff concerning the issue; he replied that he had and was told to drink lots of water. (Doc. 157-4, p. 1). Martin, therefore, denied the medical emergency and told plaintiff to access sick call for a follow-up. (Doc. 157-4, p. 1).

Plaintiff also told Martin he was experiencing a psychological emergency. (Doc. 157-4, p. 2). Plaintiff subsequently used the razor to make superficial cuts on his hands. (Doc. 157-7, p. 18). Because Martin is not a mental health professional, she told plaintiff she could not assist him but would contact the mental health department. (Doc. 157-4, p. 2). Martin and Delapp left and informed mental health staff about the situation. (Doc. 157-2, p. 2; Doc. 157-4, p. 2). The mental health staff declined plaintiff's psychological emergency and Delapp relayed that denial to plaintiff in his cell. (Doc. 157-2, p. 2; Doc. 157-4, p. 2). Because plaintiff was no longer acting disorderly, Delapp concluded application of chemical agents was not necessary and directed the camera operator to cease recording. (Doc. 157-2, p. 2-3).

Two hours later, Delapp and Larson returned to plaintiff's cell and Delapp directed Larson to apply chemical agents to plaintiff. (Doc. 157-2, p. 3; Doc. 161-1, p. 2). About 5 minutes after the initial application of chemical agents, Delapp instructed Larson to use chemical agents a second time. (Doc. 157-2, p. 3; Doc. 161-1, p. 2).

The handheld camera footage resumes at 12:40 p.m. Plaintiff is removed from his cell and taken for a decontamination shower. (Doc. 157-2, p. 3). After the shower, plaintiff received a clean pair of boxers and was escorted to the medical department. Nurse Martin conducted a post-use-of-force examination of plaintiff. (Doc. 157-4, p. 2). Larson returned plaintiff to his cell at 12:54 p.m.

DISCUSSION

Summary Judgment Standard

"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). "[T]he plain language of Rule 56(a) mandates the entry of summary judgment, 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, 477 U.S. 317, 322 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is "material" if it might affect the outcome of the case under the governing law, and it is "genuine" if the record taken as a whole could lead a rational fact finder to find for the non-moving party. Id. Summary judgment is not appropriate "if a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact." Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 594 (11th Cir. 1995). Generally, a court must view the facts in the light most favorable to the non-moving party (here, plaintiff) and draw all reasonable inferences in favor of that party. Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009). The court may not, however, accept any facts that are "blatantly contradicted by the record, so that no reasonable jury could believe [them]." Scott v....