HAYES v. BENNETT et al

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
JEROME HAYES,
D.O.C. #124113,
Plaintiff,
vs. 	Case No. 4:23cv184-MW-MAF
SERGEANT BENNETT,
LIEUTENANT LURRY,
Defendants.
_________________________/
SECOND REPORT AND RECOMMENDATION1
This is a prisoner civil rights action. Pending are two dispositive
motions filed by the Defendants - (1) a motion for judgment on the
pleadings and (2) a motion for summary judgment. ECF Nos. 64, 72.
Plaintiff has responded to both motions. ECF Nos. 74, 80.
Procedurally, Defendants’ motion to dismiss Plaintiff’s second
amended complaint, ECF No. 35, was granted, ECF Nos. 44 and 46, but
1 The first Report and Recommendation, ECF No. 44, recommended granting
Defendants’ motion to dismiss, ECF No. 35, but permitting Plaintiff to file a second
amended complaint. The recommendation was accepted and adopted. ECF No. 46.
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Plaintiff was permitted to file an amended complaint. ECF Nos. 46-47.
Ultimately, the pro se Plaintiff filed a sixth amended complaint, ECF No. 60,
alleging that during a cell extraction on February 22, 2022, Defendants
Bennett and Lurry used excessive and unnecessary force. Plaintiff also
complained that Defendant Lurry failed to protect him and was deliberately
indifferent to his serious medical needs following the use of force. 	Id. at 5-
8. Defendants filed an answer, ECF No. 62, and an Initial Scheduling
Order was entered on January 8, 2025. ECF No. 63. The discovery period
closed on June 13, 2025. ECF No. 70.
While discovery was still proceeding, Defendants filed the motion for
judgment on the pleadings in part. ECF No. 64. That motion raised three
arguments: (1) the deliberate indifference claim should be dismissed for
failure to state a claim; (2) the request for compensatory damages should
be dismissed as barred by 42 U.S.C. § 1997e(e); and (3) Plaintiff is not
entitled to punitive damages. ECF No. 64 at 5, 7, and 11.
At the conclusion of the discovery period, Defendants filed a motion
for summary judgment, ECF No. 72, supported by numerous exhibits and a
separately filed video under seal. ECF Nos. 73, 76, and 79. Defendants
argue, among other things, that the undisputed evidence shows the force
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used on Plaintiff was reasonable, that Defendant Lurry did not fail to
intervene to protect Plaintiff, and Defendants are entitled to qualified
immunity. 	Id. at 1-2. Defendants also argued for the second time that they
were not deliberately indifferent and Plaintiff is not entitled to compensatory
damages. 	Id.
Plaintiff was advised of his obligation to respond to both motions.
ECF Nos. 65 and 76. Plaintiff’s response to the motion for judgment on the
pleadings, ECF No. 74, was not timely filed but has been considered.2
Likewise, Plaintiff’s response to the summary judgment motion, ECF No.
80, was not timely filed either. Plaintiff had been given until August 18,
2025, to respond, see ECF No. 78, but his response was not mailed until
October 10, 2025. 3 Although late, Plaintiff’s response has been
considered along with Defendants’ reply, ECF No. 82, which was filed on
October 24, 2025.
2 Plaintiff was granted an extension of time and directed to respond by June 23,
2025. ECF Nos. 70-71. His response was not given to prison officials to mail for him
until June 30, 2025. ECF No. 74 at 4.
3 Plaintiff’s explanation for the delay, ECF No. 80-1, has been reviewed and
accepted as good cause to consider his belated response.
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I. Motion for Judgment on the Pleadings, ECF No. 64
A. 	Standard of Review
“Judgment on the pleadings is appropriate where there are no
material facts in dispute and the moving party is entitled to judgment as a
matter of law.” Perez v. Wells Fargo N.A., 774 F.3d 1329, 1335 (11th Cir.
2014). In ruling on a motion for judgment on the pleadings, the Court must
“accept as true all material facts alleged in the non-moving party's
pleading,” and those facts are to be viewed “in the light most favorable to
the non-moving party.” Perez, 774 F.3d at 1335 (citing Hawthorne v. Mac
Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998)). “A motion for
judgment on the pleadings is governed by the same standard as a motion
to dismiss under Rule 12(b)(6).” Carbone v. Cable News Network, Inc.,
910 F.3d 1345, 1350 (11th Cir. 2018) (quoted in Samara v. Taylor, 38 F.4th
141, 149 (11th Cir. 2022). As noted above, three defenses are presented
in this motion: (1) Plaintiff’s deliberate indifference claim is insufficient and
fails to state a claim; (2) compensatory damages are barred by 42 U.S.C. §
1997e(e); and (3) Plaintiff is not entitled to punitive damages. ECF No. 64
at 5, 7, and 11.
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B. 	Deliberate Indifference
Prison officials are required by the Eighth Amendment to provide
medical care to those inmates incarcerated in their care. An official’s
deliberate indifference to a prisoner’s medical needs violates the Eighth
Amendment. Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50
L. Ed. 2d 251 (1976); McElligott v. Foley, 182 F.3d 1248, 1254 (11th Cir.
1999). To state a claim for deliberate indifference under the Eighth
Amendment, a plaintiff must “must show: (1) a serious medical need; (2)
the defendants’ deliberate indifference to that need; and (3) causation
between that indifference and the plaintiff’s injury.” Mann v. Taser Int’l,
Inc., 588 F.3d 1291, 1306-07 (11th Cir. 2009) (quoted in Brown v. Doe, No.
24-10550, 2025 WL 2911038, at *3 (11th Cir. Oct. 14, 2025). Here,
Defendants argue that Plaintiff’s allegations fail to show they were
deliberately indifferent. ECF No. 64 at 6. Plaintiff’s response to the motion
for judgment on the pleadings did not address this issue. ECF No. 74.
The operative complaint alleged that after the use of force,
Defendants violated “rules of policy and procedure” by not giving him a “full
body scan with camera used for cell extraction so that the camera could
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detect any and all transparent visible injuries.” ECF No. 60 at 6. 4 Plaintiff
did not allege that he requested medical care from the Defendants nor did
he claim Defendants refused such a request or otherwise prevented him
from receiving medical care. Ancata v. Prison Health Servs., Inc., 769 F.2d
700, 704 (11th Cir. 1985) (refusal to take steps to see that prisoner is
provided medical care known to be necessary is deliberate indifference).
Plaintiff also did not allege that Defendants delayed his receipt of medical
care. Goebert v. Lee Cnty., 510 F.3d 1312, 1330 (11th Cir. 2007) (noting
“an official acts with deliberate indifference when he intentionally delays
providing an inmate with access to medical treatment”). The simple fact
that Defendants did not comply with an administrative rule or procedure
which required a “body scan” or to use a video camera to record any visible
4 Plaintiff does not cite or reference the rule, policy, or procedure that allegedly
requires a “body scan” after a cell extraction. The Court’s independent research did not
locate a rule that requires such a “scan,” but Administrative Rule 33-602.210(4) requires
video recording of a use of force incident and specifies that the recording must continue
through “[a]ny medical examination performed after the use of force.” FLA . ADMIN . CODE
R. 33-602.210(4)(c)3-4. The rule states: “Immediately prior to securing the inmate in a
cell or a vehicle for transportation, the officer in charge shall ensure the camera
operator records the inmate's anterior and posterior body for the presence or absence
of visible injuries.” FLA . ADMIN . CODE R. 33-602.210(4)(c)4.b. Presumably, that
requirement is the basis for Plaintiff’s assertion of a “body scan.”
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injuries is insufficient to state a claim for deliberate indifference to Plaintiff’s
medical needs. 5
Additionally, Plaintiff acknowledged in his response to Defendants’
motion that “following the cell extraction, Plaintiff was taken to the prison
medical emergency room” where he complained about his injuries. ECF
No. 74 at 1. He said that “he was denied medical care by staff members,”
id., and at a later point Plaintiff said he “requested Medical to provide him
the care he required and they were completely indifferent to his needs.” 	Id.
at 3. Those statements support the conclusion reached above that the
named Defendants were not deliberately indifferent to Plaintiff’s needs and
did not prevent Plaintiff from receiving medical care.
Furthermore, Plaintiff said that on the following day, he was seen in
mental health. 	Id. at 1. His mental health doctor expressed concern about
Plaintiff’s eye which he said “was extremely swollen, bruised and slightly
bleeding.” 	Id. at 1-2. After that visit, Plaintiff said he was then “seen again
by medical staff.” 	Id. 	Those statements demonstrate that Plaintiff did, in
5 In addition to the fact that Plaintiff’s factual allegations are insufficient,
Defendants submitted a video recording of the use of force. ECF No. 72. That video
will be examined in the summary judgment portion of this Report and Recommendation
and includes review of the post-use-of-force procedures.
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fact, receive care, although Plaintiff is not, at this point, satisfied with the
medical care he received. The Defendants’ motion for judgment on the
pleadings should be granted as to Plaintiff’s Eighth Amendment claim for
deliberate indifference.
C. Compensatory Damages
Defendants once again argue 6 that Plaintiff’s request for
compensatory damages is barred by 42 U.S.C. § 1997e. ECF No. 64 at 7.
Defendants contend that Plaintiff’s injuries are de minimis and must be
stricken. 	Id. at 7-10. In response, Plaintiff says that his injuries were not
de minimis and he claims that fact is demonstrated because he “did in fact
go to a prison medical emergency room” and his injuries were
“documented” in video recordings. 7 ECF No. 74 at 2.
Plaintiff alleged that as a result of the use of force, he suffered a
“closed black eye” injury in his left eye. ECF No. 60 at 5. He said that his
6 This argument was previously raised in Defendants’ motion to dismiss in part. ECF
No. 54. The motion to dismiss was ultimately denied as moot and Plaintiff was
permitted to file a sixth amended complaint. ECF No. 59. After Plaintiff did so, see ECF
No. 60, Defendants filed an answer, ECF No. 62, instead of another motion to dismiss.
7 Plaintiff’s response also revels that Defendants did, in fact, have his injuries
recorded and, therefore, they did not fail to comply with Rule 33-602.210(4).
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eye had redness and blood clotting, and that he also had a “bloody busted
lip.” 	Id. at 5-6.
As part of the Prison Litigation Reform Act [PLRA], Congress
enacted 42 U.S.C. § 1997e(e) which, as amended in 2013, states:
No Federal civil action may be brought by a prisoner confined
in a jail, prison, or other correctional facility, for mental or
emotional injury suffered while in custody without a prior
showing of physical injury or the commission of a sexual act (as
defined in section 2246 of Title 18).
42 U.S.C. § 1997e(e). “An ‘injury’ is ‘any harm, damage, wrong, or
injustice.’” Injury, Garner's Dictionary of Legal Usage (quoted in Hoever v.
Marks, 993 F.3d 1353, 1357 (11th Cir. 2021)). As explained by the
Eleventh Circuit Court of Appeals, “the text of § 1997e(e) bars only
requests for compensatory damages stemming from purely mental or
emotional harms.” Hoever, 993 F.3d at 1358 (holding that § 1997e(e) does
not bar punitive damages). Put another way, Ҥ 1997e(e) limits a prisoner
only from recovering damages that redress, or compensate him for, a
mental or emotional injury, when no physical injury is shown.” 993 F.3d at
1360; see also Brooks v. Warden, 800 F.3d 1295, 1298 (11th Cir. 2015)
(holding that because Brooks did not allege “any physical injury resulting
from his hospital stay, under the Prison Litigation Reform Act, 42 U.S.C. §
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1997e(e), he” could not recover compensatory damages). In this case,
however, Plaintiff alleged physical injury. Thus, he is not seeking monetary
damages as relief solely for mental or emotional harm.
Even so, and even though the statute does not specifically address
the severity of physical injury, the Eleventh Circuit has held that “to avoid
dismissal under § 1997e(e),” a prisoner must include “allegations of
physical injuries that are greater than de minimis.” Mitchell v. Brown &
Williamson Tobacco Corp., 294 F.3d 1309, 1312-13 (11th Cir. 2002)
(quoted in Mann v. McNeil, 360 F. App’x 31, 32 (11th Cir. 2010)); see also
Furman v. Warden, 827 F. App’x 927, 933 (11th Cir. 2020)). The Eleventh
Circuit has explained that although “section 1997e(e) does not define
physical injury, we have concluded that, to satisfy the statute ‘the physical
injury must be more than de minimis, but need not be significant.’” Quinlan
v. Pers. Transp. Servs. Co., 329 F. App’x 246, 249 (11th Cir. 2009)
(quoting Harris v. Garner, 190 F.3d 1279, 1286 (11th Cir.1999), vacated, in
part, on other grounds, 216 F.3d 970 (11th Cir. 2000) (en banc )
(concluding that a “dry shave” was not the kind of physical injury
cognizable under section 1997e(e)).
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In making that pronouncement in Quinlan, 329 F. App’x at 249, the
Eleventh Circuit cited to Nolin v. Isbell, 207 F.3d 1253, 1258 n.4 (11th Cir.
2000), a case which stands for “the principle that the application of de
minimis force, without more, will not support a claim for excessive force in
violation of the Fourth Amendment.” Nolin, 207 F.3d at 1257. That case
did not, however, involve § 1997e(e). Thus, it seems that case law has
conflated § 1997e(e)’s bar with the standard for an excessive force claim -
that “[a]n inmate who complains of a ‘push or shove’ that causes no
discernible injury almost certainly fails to state a valid excessive force
claim.” Wilkins v. Gaddy, 559 U.S. 34, 38, 130 S. Ct. 1175, 1178, 175 L.
Ed. 2d 995 (2010) (citations omitted). Doing so is unnecessary because
the “de minimis” standard “generally aligns with the ‘physical injury
analysis’ used in Eighth Amendment cases and must exceed a ‘routine
discomfort’ threshold.” Glick v. Corbin, No. 1:22-CV-328-AW-MAF, 2024
WL 4359920, at *10 (N.D. Fla. Aug. 7, 2024), report and recommendation
adopted, No. 1:22-CV-328-AW-MAF, 2024 WL 4349998 (N.D. Fla. Sept.
30, 2024) (relying on Furman, 827 F. App’x at 933). Without some level of
injury which is more than de minimis, an excessive force will necessarily
fail.
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Nevertheless, this Court is bound by the Eleventh Circuit’s
pronouncement that a prisoner’s alleged “physical injury must be more than
de minimis, but need not be significant” to avoid the § 1997e(e) bar. 827 F.
App’x at 933 (explaining that the de minimis standard is “appropriate in the
light of the PLRA's ‘essential purpose’ -- ‘to curtail frivolous and abusive
prisoner litigation’ -- and of ‘our basic understanding that ‘routine discomfort
is part of the penalty that criminal offenders pay for their offenses against
society.’”). Here, Plaintiff's injuries are not more than “de minimis.” His
black eye and bloody lip were temporary issues that did not require
immediate medical attention. 	See Tate v. Rockford, 497 F. App'x 921, 925
(11th Cir. 2012) (holding that a laceration on the inmate’s “forehead,
several small abrasions and cuts, and a swollen right eye” were de minimis
injuries); Parker v. Dubose, No. 3:12cv204-MCR-CJK, 2013 WL 4735173,
at *2 (N.D. Fla. Sept. 3, 2013) (“Plaintiff’s alleged black eye, bloody lip,
scrapes, abrasion and ‘backpains’ do not amount to more than de minimis
physical injury and are not sufficient to meet the physical injury requirement
of § 1997e(e)”). Plaintiff has acknowledged that he was seen in the
prison’s emergency room, and no treatment was provided. Indeed, outside
of the prison environment, there would be no need for medical treatment
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for a bloody lip or black eye. Those temporary discomforts heal without the
need for medical care. Although Plaintiff has argued in his response that
he has had to wear eye glasses and he contends he has “been diagnosed
with permanent eye damage,” the pleadings did not present such injury.
ECF No. 74 at 2. Furthermore, Plaintiff’s conclusory assertion of his injury
is not supported by medical evidence. Thus, Defendants’ motion for
judgment on the pleadings, ECF No. 64, should be granted because
Plaintiff's request for compensatory damages is barred by 42 U.S.C. §
1997e(e). 8
D. Punitive Damages
Defendants also seek to dismiss Plaintiff’s request for punitive
damages as statutorily barred by 18 U.S.C. § 3626(a)(1)(A). 9 Id. at 11.
8 Because Plaintiff is pro se, he is informed that this recommendation does not
eliminate the possibility of nominal damages and does not dismiss his Eighth
Amendment claim for the use of excessive and unnecessary force.
9 The statute provides:
Prospective relief in any civil action with respect to prison conditions shall
extend no further than necessary to correct the violation of the Federal
right of a particular plaintiff or plaintiffs. The court shall not grant or
approve any prospective relief unless the court finds that such relief is
narrowly drawn, extends no further than necessary to correct the violation
of the Federal right, and is the least intrusive means necessary to correct
the violation of the Federal right. The court shall give substantial weight to
any adverse impact on public safety or the operation of a criminal justice
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They argue that punitive damages “are never necessary to correct a
violation of a federal right,” and “could not satisfy the additional, stringent
limitations imposed by the PLRA . . . .” 	Id. at 12. Plaintiff did not address
this issue in his response. ECF No. 74.
In presenting this argument, Defendants acknowledge that the
Eleventh Circuit held in Hoever v. Marks, 993 F.3d 1353, 1356 (11th Cir.
2021), that § 1997e(e) “permits claims for punitive damages without a
showing of physical injury.” Defendants also acknowledge that the Court in
Hoever did not address whether a claim for punitive damages was barred
by 18 U.S.C. § 3626(a)(1)(A). ECF No. 64 at 13. Indeed, the Court
“decline[d] the government’s invitation to address the availability of punitive
damages in prison condition cases under 18 U.S.C. § 3626, as it [fell]
outside the scope of the en banc briefing question posed to the parties.”
993 F.3d at 1364, n.5. In short, Defendants argue that § 3626(a)(1)(A)
system caused by the relief.
18 U.S.C. § 3626(a)(1)(A). Punitive damages are included within the definition of
“prospective relief” used in the statute. See Johnson v. Breeden, 280 F.3d 1308, 1325
(11th Cir. 2002), abrogated on other grounds by Kingsley v. Hendrickson, 576 U.S. 389,
395 (2015).
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bars Plaintiff’s request for punitive damages, but cite to no controlling
precedent.
In fact, “section 3626 does not imposes a categorical prohibition on
an award of punitive damages.” Hart v. Lt. Hardbower, No. 5:23cv75-TKW-
MJF, 2024 WL 4497117, at *3 (N.D. Fla. Sept. 17, 2024), report and
recommendation adopted sub nom. Hart v. Hardbower, No. 5:23-CV-75-
TKW-MJF, 2024 WL 4495507 (N.D. Fla. Oct. 15, 2024) (citing Benton v.
Rousseau, 940 F. Supp. 2d 1370, 1379–80 (M.D. Fla. 2013) (finding the
prisoner was entitled to $15,000 in punitive damages for violations of his
First and Fourteenth Amendment rights). The current law of the Eleventh
Circuit is that “18 U.S.C. § 3626 does not categorically prohibit a prisoner
from recovering punitive damages in a case of this kind.” Walker v. Noles,
No. 4:24cv289-RH-MAF, 2025 WL 2677113, at *1 (N.D. Fla. Sept. 18,
2025); see also Dicks v. Bearden, No. 4:24cv495-RH-MAF, 2025 WL
2672562, at *2 (N.D. Fla. Sept. 18, 2025) (noting the Eleventh Circuit “did
not say the statute categorically prohibited punitive damages”); Andrews v.
Ciccone, No. 3:23-CV-88-MMH-SJH, 2025 WL 2508878, at *14 (M.D. Fla.
Sept. 2, 2025) (holding “that § 3626 does not preclude a request for
punitive damages” and refusing to “disregard the Eleventh Circuit's
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long-standing recognition that punitive damages are available in prisoner
civil rights actions”); Holland v. Mundella, No. 2:23-CV-399-JES-NPM,
2025 WL 621882, at *3 (M.D. Fla. Feb. 26, 2025) (denying motion to
dismiss the request for punitive damages because “the Eleventh Circuit
has consistently held that the PLRA allows for punitive damages to punish
defendants for willful or malicious conduct”). Despite those rulings,
Defendants argue that “this Court cannot find that punitive damages are
necessary to correct a violation of Plaintiff’s rights or are the least intrusive
means necessary to do so,” and thus, they contend “punitive damages are
barred by section 3626(a)(1)(A).” ECF No. 64 at 14. Yet the Eleventh
Circuit has not so held. Indeed, the Court has remanded for consideration
of the punitive damage factors mandated by § 3626(a)(1)(A). See Johnson
v. Breeden, 280 F.3d 1308, 1325 (11th Cir. 2002); Hoever v. Marks, 993
F.3d 1353, 1364 (11th Cir. 2021) (“On remand, Mr. Hoever should be given
an opportunity to obtain punitive damages too”). Because the Eleventh
Circuit has not held that the statute bars a prisoner’s request for punitive
damages, this aspect of the motion for judgment on the pleadings, ECF No.
64, should be denied.
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II. Motion for Summary Judgment, ECF No. 72
Defendants move for summary judgment based on five arguments.
ECF No. 72 at 1-2. Only three of those arguments need be addressed
because the recommendation for adjudicating the motion for judgment on
the pleading, ECF No. 64, was to dismiss Plaintiff’s deliberate indifference
claim and find that § 1997e(e) bars an award of compensatory damages.
Thus, ruling is limited to Defendants’ three reasons summary judgment
should be granted in their favor: (1) Defendant Bennett’s use of force was
reasonable; (2) Defendant Lurry did not fail to intervene to protect Plaintiff
from an unreasonable use of force; and (3) Defendants are entitled to
qualified immunity. ECF No. 72 at 1.
A. 	Standard of Review
“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). Thus,
summary judgment is proper “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,
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477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). As
noted above, the parties were provided adequate time to conduct
discovery.
The “party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’
which it believes demonstrate the absence of a genuine issue of material
fact.” Celotex Corp., 477 U.S. at 323, 106 S. Ct. at 2553. The non-moving
party must then show10 though affidavits or other Rule 56 evidence “that
there is a genuine issue for trial” or “an absence of evidence to support the
nonmoving party’s case.” 	Id. at 325, 106 S. Ct. at 2554; Beard v. Banks,
548 U.S. 521, 529, 126 S. Ct. 2572, 2578, 165 L. Ed. 2d 697 (2006).
10 "Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings and by
her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on
file,' designate 'specific facts showing that there is a genuine issue for trial.' " Owen v.
Wille, 117 F.3d 1235, 1236 (11th Cir. 1997), cert. denied 522 U.S. 1126 (1998) (quoting
Celotex, 477 U.S. at 324, 106 S. Ct. at 2553) (quoting Fed. R. Civ. P. 56(c), (e))). The
nonmoving party need not produce evidence in a form that would be admissible as Rule
56(e) permits opposition to a summary judgment motion by any of the kinds of
evidentiary materials listed in Rule 56(c). Owen, 117 F.3d at 1236; Celotex, 477 U.S. at
324, 106 S. Ct. at 2553.
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An issue of fact is “material” if it could affect the outcome of the case.
Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256, 1259 (11th
Cir. 2004) (citations omitted). Additionally, “the issue of fact must be
‘genuine’” and the non-moving party “must do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348,
1356, 89 L. Ed. 2d 538 (1986) (other citations omitted). “The mere
existence of some factual dispute will not defeat summary judgment unless
that factual dispute is material to an issue affecting the outcome of the
case.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th
Cir. 2003) (quoting Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir.
2000)). All reasonable inferences must be resolved in the light most
favorable to the nonmoving party, Sconiers v. Lockhart, 946 F.3d 1256,
1262-63 (11th Cir. 2020), and the Court must decide “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.”
Hickson Corp., 357 F.3d at 1260 (quoting Anderson v. Liberty Lobby, 477
U.S. 242, 252, 106 S. Ct. 2505, 2505, 91 L. Ed. 2d 202 (1986)).
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“Summary judgment is not a time for fact-finding; that task is reserved
for trial.” Sconiers, 946 F.3d at 1263 (11th Cir. 2020) (citing Tolan v.
Cotton, 572 U.S. 650, 655-57, 134 S. Ct. 1861, 188 L. Ed. 2d 895 (2014)).
“[A]t the summary judgment stage the judge’s function is not himself to
weigh the evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249, 106
S. Ct. at 2511 (quoted in Sears v. Roberts, 922 F.3d 1199, 1205 (11th Cir.
2019)).
B. 	The Relevant and Undisputed Rule 56(e) Evidence11
On February 22, 2022, Plaintiff was housed at the Wakulla
Correctional Institution Annex, ECF No. 80, Ex. 1, and was housed in close
management. ECF No. 72-6 at 122 (Ex. 6). Plaintiff admitted covering his
cell door window, obstructing the view into the cell. 12 ECF No. 80 at 4; see
also Ex. 2-A (Handheld video recording, part 1). Defendant Lurry ordered
11 In response to Defendants’ summary judgment motion, Plaintiff filed a
“memorandum” and presented argument, but Plaintiff did not submit any evidence.
ECF No. 80. Furthermore, Plaintiff’s statement of facts is essentially a restatement of
Defendants’ facts from the summary judgment motion. Id. at 3-10.
12 On the day before this incident, Plaintiff was seen in mental health and was upset
because he had not received his property. ECF No. 72-6 at 117. Plaintiff said he was
going to refuse taking his blood pressure medications and “go on a food strike until” he
received his property. Id. The clinician’s comments noted Plaintiff was “new to the DTU
program” and was “not adjusting well to the policies and procedures.” Id.
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Plaintiff to uncover his window, submit to hand restraints, and follow all
orders given by corrections staff. Ex. 2-A at 10:04-10:05 AM. Plaintiff was
warned that chemical agents would be applied, but the undisputed
evidence shows that Plaintiff failed to comply with Defendant Lurry’s order
and failed to remove the coverings on his cell door window. Id.; see also
ECF No. 80 at 5.
At 10:09 AM, a final order was given to Plaintiff to uncover his
window and submit to hand restraints. Ex. 2-A. It is undisputed that
Plaintiff refused. 	Id.; see ECF No. 80 at 5. Plaintiff barricaded the door,
attempting to make it difficult for chemical agents to be used against him.
Ex. 2-A; see also ECF No. 80 at 5. Nevertheless, Lieutenant Dodson
sprayed chemical agents into Plaintiff’s cell at 10:10 AM. Ex. 2-A.
Six minutes later, Defendant Lurry again ordered Plaintiff to uncover
his window and submit to hand restraints. Ex. 2-A at 10:16 AM. When he
failed to do so, Lieutenant Dodson administered a second round of
chemical agents. 	Id. 	Plaintiff still refused to comply with Lurry’s orders. 	Id.
After several more minutes, Defendant Lurry and Lieutenant Dodson
returned to Plaintiff’s cell front. 	Id. 	At 10:26 AM, Defendant Lurry repeated
the order for Plaintiff to remove the window obstruction and submit to hand
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restraints. 	Id. 	Plaintiff admits that he “continued to resist all lawful
commands.” ECF No. 80 at 6; see also Ex. 2-A. Lieutenant Dodson
issued a third round of chemical agents at 10:27 AM. Ex. 2-A; see ECF
No. 80 at 6.
At 10:33 AM, Plaintiff finally removed the window covering from his
cell door window. Ex. 2-A. Three minutes later, Defendant Lurry returned
to Plaintiff’s cell front and asked if Plaintiff would submit to hand restraints.
Id. 	Plaintiff’s response is indiscernible because his mouth covered, but he
made no visible demonstration that he was willing to submit to hand
restraints. 	Id. 	Plaintiff can be seen pacing back and forth in his cell but he
never indicates a willingness to submit to restraints and voluntarily leave
his cell. 	Id.
The cell extraction team was deployed and arrived few minutes
before 11:00 AM. Ex. 2-B (handheld video recording, part 2). Defendant
Bennett was the shield operator in the cell extraction team. ECF No. 80 at
6; Ex. 2-B. Defendant Lurry gave Plaintiff another order to submit to hand
restraints or the cell extraction team would remove him from the cell. Ex.
2-B at 10:53 AM. When Plaintiff refused to comply, the cell extraction team
went in to restrain Plaintiff. 	Id.; Ex. 3. As the cell door opened, Plaintiff can
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be seen attempting to push back against the officers and escape the cell.
Ex. 2-B. Defendant Bennett used his shield to push Plaintiff back into the
call, and the cell extraction team then pushed forward to place Plaintiff into
restraints. 	Id.
Plaintiff was told to get on the ground, but he refused to do so; the
team pushed Plaintiff to the ground. 	Id. 	Plaintiff continued to resist while
on the ground, trying to crawl under his bed. Ex. 2-B at 10:54 AM. Plaintiff
had to be pulled out from under the bed, and it took several minutes for the
team to successfully put Plaintiff in restraints as he continued to fight
against the team and failed to comply with commands to stop resisting. 	Id.
There are no physical movements which indicate punching movements
made by the cell extraction team. 	Id.
The cell extraction team was able to put all restraints on Plaintiff’s
legs and hands, and Defendant Lurry told Plaintiff he would be escorted to
the decontamination shower. 	Id. 	Plaintiff responded that the team would
have to carry him. 	Id. 	Plaintiff can be seen kicking while the team attempts
to pick him up and carry him. 	Id. 	Just as the team exits the cell door, they
all go to the ground because of Plaintiff’s kicking. 	Id.
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The team picked Plaintiff up and carried him down a flight of stairs
and towards the shower. 	Id. 	Again, there are no punching or otherwise
violent movements made by the cell extraction team as Plaintiff is carried.
Id. at 10:58 AM – 11:05 AM. After being carried down the stairs, Plaintiff
continues to be combative and refuses to stand and walk. 	Id. 	However, at
11:05 AM, almost 7 minutes into the transport from his cell to the shower,
Plaintiff is raised to his feet and finally decides to walk the rest of the way to
the decontamination shower. 	Id. 	He was escorted by Defendant Bennett
and another officer. 	Id. at 11:05 AM.
At 11:07 AM, Plaintiff is placed in the decontamination shower and
the cell extraction team leaves. 	Id. 	However, when Plaintiff is ordered by
Defendant Lurry to strip down for the shower, Plaintiff refused to do so,
saying he wanted his property. 	Id. Plaintiff was reminded that he was on
property restriction, and his property would not be returned for 72 hours.
Id.
Because Plaintiff refused to strip down, the cell extraction team
returned to force Plaintiff to strip. 	Id. at 11:12 AM. Plaintiff again attempted
to force his way out of the cell, and Defendant Bennett used the shield to
force Plaintiff back into the shower cell and to the floor. 	Id. 	Officers yell
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repeatedly for him to stop resisting. 	Id. 	Eventually, the team used a
“ligature cutter” to remove Plaintiff’s clothes and then two of the officers
stood Plaintiff up for the decontamination shower. ECF No. 72-1 at 2 (Ex.
1); Ex. 2-B. 	Again, the video does not show any punching movements; the
only force used is to hold Plaintiff down while officers cut off his clothes.
Ex. 2-B. After the clothes are removed, officers have to physically hold
Plaintiff in an upright position and hold a hose over Plaintiff to wash off the
chemical agents. 	Id. 	Plaintiff took a 3-minute shower, between 11:18 -
11:21 AM. 	Id.
Following the shower, Plaintiff was clothed in a yellow protective
smock by the cell extraction team and escorted to medical at 11:25 AM. 	Id.
The Emergency Room record indicates Plaintiff voiced no complaints and
was in no distress. ECF No. 72-4 at 2; ECF No. 72-6 at 137 (Ex. 6). The
only injuries noted were redness to his lower lip, and redness to his upper
right cheek. 	Id.
At 11:31 AM, Plaintiff is escorted from medical and placed in a
different cell. Ex. 2-B. As he passes by the video operator, there are no
apparent injuries to Plaintiff beyond the red area on his right cheek. 	Id. 	He
is placed in the cell without incident. 	Id.
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Later that afternoon, Plaintiff complained about a headache. ECF
No. 72-4 at 2; ECF No. 72-6 at 131. He was assessed and found to have
an elevated blood pressure of 180/123, but he was not in “obvious
distress.” ECF No. 72-6 at 131. The nurse notified the physician who
ordered Metoprolol and HCTZ, but Plaintiff refused the medications, saying
“he would ‘talk to the doctor tomorrow.’” 	Id. 	Plaintiff was to be monitored
for any worsening symptoms. 	Id.
Plaintiff was also seen by mental health the same day as the use of
force, February 22, 2022. ECF No. 72-4 at 3; ECF No. 72-6 at 127. 	The
notes reflect that Plaintiff said, he “didn’t get his property yesterday like
they said I would, so I turned up like I said I would. . . .” 	Id. 	Plaintiff said
staff had gassed him, cut off his clothes, and “jumped on” him. ECF No.
72-6 at 127, 128. He claimed they “busted my face and beat me up on
purpose.” 	Id. 	The clinician noted that during his interview, Plaintiff had a
swollen bottom lip, a bruise under his right eye, and “the right side of his
face was starting to swell up.” 	Id. at 128.
The day after the use of force, an “Infirmary Progress Record reveals
that Plaintiff said he was going to “sue them for beating [him] up and
touching [his] private areas.” ECF No. 72-6 at 148. He admitted that he
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had not taken his medications since February 19th, and said he would
keep refusing them until he received his property. 	Id. 	A health care note
reflects that Plaintiff was seen at his cell front and denied chest pain,
hyspnea, 13 or blurred vision. 	Id. at 149.
Two days after the use of force, Plaintiff was seen at medical for
hypertension and his refusal to take his medication. ECF No. 72-6 at 161.
At another point that day, Plaintiff requested “medical come check his eye.”
Id. at 162. He complained that he had pain in his right eye. 	Id. at 165. He
was given “artificial tears solution” for his right eye. 	Id. at 164-165. 	The
medical record indicates there was redness in his right eye, and that his
blood pressure was 161/101. 	Id. at 165. He was instructed to comply with
all his prescribed medications. 	Id.
On March 1, 2022, Plaintiff complained of blurred vision in his right
eye. 	Id. at 174-75. The attending clinician documented that Plaintiff had
decreased visual acuity and a subconjunctival hemorrhage to Plaintiff’s
right eye. 	Id. 	It was recommended that Plaintiff have an urgent referral to
an ophthalmologist. 	Id. 	In the meantime, Plaintiff was “advised to report
13 Dyspnea is a medical term for difficult or labored breathing.
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any worsening signs or symptoms to medical via sick-call process and/or
declaration of medical emergency if urgent.” 	Id. at 174. The request was
approved. 	Id. at 178. On March 11, 2022, Plaintiff’s eye was still red and
swollen, and he said his vision was “still blurry.” 	Id. at 183. Plaintiff said he
was using the eye drops but “they aren’t working that good because I still
can’t see.” 	Id.
Plaintiff was seen at Eye Associates of Tallahassee on June 2, 2022.
ECF No. 72-7 at 316. The notes from that visit indicate Plaintiff reported
suffering “blunt trauma” in his right eye about “two months ago.” 14 Id.
Plaintiff was diagnosed with “right optic atrophy.” Id. at 319; ECF No. 72-4
at 3. The notes state there was “[n]o observed damage from trauma,
suspect retrobulbar optic nerve damage.” ECF No. 72-7 at 319. Plaintiff
was referred to neurology and he was directed to take lisinopril (10mg)
daily. 15 Id. 	No other treatment was recommended. ECF No. 72-7 at 369.
14 The February 22nd cell extraction took place a little over 3 months prior to the visit.
15 Lisinopril is primarily used to treat high blood pressure; the medical record from
Eye Associates noted Plaintiff had hypertension. Id. at 316. At the time of the incident,
Plaintiff was prescribed Metoprolol, another medication used to treat high blood
pressure, but the evidence here shows he often refused medication. See, e.g., ECF No.
72-7 at 328. Notably, he refused both Lisinopril and Metoprolol multiple times in August
2022. Id. at 373, 379-381, 383-385, 393-394, 401, 406, 411, 415, 419, 433, 436.
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According to a declaration submitted by Nurse Kellie Caswell with the
medical records, “hypertension can be a cause of optic atrophy.” ECF No.
72-4 at 2. No medical opinion was cited, however, showing definitively that
Plaintiff’s hypertension was the cause of his optic atrophy.
Plaintiff had a follow-up appointment at a Tallahassee
Neuro-Ophthalmology Clinic on November 17, 2022. ECF No. 72-9 at 157.
Plaintiff reported that he was “struck in the right eye by a police officer,”
and said that within a day or two of the injury, “he had an ecchymosis
around his eye, which was swollen, and his vision blurred.” 	Id. 	He
complained that he “has had continuous blurring of vision” since then and
images “seem to ‘jump.’” Id. 	He said it was not worsening, “but not
improving either.” 	Id. 	At the time of that appointment, Plaintiff’s blood
pressure was 187/106, which the doctor noted was “elevated.” 	Id. at 158.
Plaintiff was diagnosed with traumatic optic neuropathy. 	Id. 	The
ophthalmologist said that finding was “consistent with” Plaintiff’s story of “a
blow to the right orbit, but it does not necessarily mean that is the
explanation.” 	Id.
Almost a year later, on October 2, 2023, Plaintiff’s vision in his right
eye was 20/25 without glasses. ECF No. 72-7 at 145. Plaintiff told the
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nurse he could not see out of his left eye due to “history of surgery,” but no
evidence has been presented which shows that Plaintiff ever had eye
surgery. 16 Id.; see also ECF No. 72-7 at 150. On that same day, a consult
request was submitted to refer Plaintiff to an optometrist. 	Id. at 151.
However, the records show that Plaintiff refused to see the optometrist on
November 9, 2023. 	ECF No. 72-7 at 166; ECF No. 72-4 at 4.
Plaintiff had a periodic screening on January 18, 2024, and his vision
on that day was 20/25 in both his right and left eye, without glasses. ECF
No. 72-7 at 203, 205. When asked whether there had been any changes
to his vision since his last visit, Plaintiff answered, “no.” 	Id. at 205.
Curiously, Plaintiff complained of vision problems in late March 2024.
ECF No. 72-7 at 294. A notation in his medical reveals that health care
personnel from Santa Rosa Annex (where Plaintiff was currently housed)
received records from Plaintiff’s ophthalmology appointment in November,
2022. ECF No. 72-8 at 172. It was noted that a recommendation had
been made for Plaintiff to have “an orbit scan,” and it was decided that
Plaintiff should repeat his “visual acuity” examination to determine if
16 There is evidence, however, which shows that Plaintiff was seen in the prison
emergency room on July 21, 2022, after an altercation with another inmate. ECF No.
72-8 at 2. Plaintiff said he was “struck on the left side of [his] face.” Id.
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Plaintiff was “still having the same visual difficulty.” ECF No. 72-8 at 172.
On April 7, 2024, Plaintiff “refused to come to medical for Visual Acuity;”
attempts were made on both Saturday and Sunday. 	Id. at 173; see also Id.
at 176.
Plaintiff was eventually “brought in for vision exam” on April 9, 2024.
Id. at 194. The comments indicate the examine was “difficult” as Plaintiff
“kept looking around.” 	Id. at 195. The doctor noted the vision in Plaintiff’s
right eye was normal, but he had decreased visual acuity in the left eye. 	Id.
Plaintiff indicated he could “only see in the center of the field.” 	Id. 	His
acuity in the right eye was 20/30 and his left eye was 20/200. 	Id.
However, the doctor noted that he he or she was unsure if that was true or
if Plaintiff was “exaggerating his visual problems.” 	Id. 	The doctor offered
to submit a consult request for Plaintiff to see an optometrist or
ophthalmologist, but Plaintiff refused. 	Id. 	Plaintiff also refused to sign the
refusal form. 	Id.; see also ECF No. 72-8 at 199. Plaintiff said he did not
“need glasses or want to see an eye doctor, because he only needs to be
able to see out of one eye, and he can see out of the R eye.” 	Id. at 194.
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C. 	Unnecessary Excessive Force Claim
The Eighth Amendment forbids cruel and unusual punishment.
Farrow v. West, 320 F.3d 1235, 1242 (11th Cir. 2003). A claim that a
prison official unnecessarily used excessive physical force on a prisoner
falls within the Cruel and Unusual Punishments Clause. The “core judicial
inquiry” for this claim uses the standard set forth in Whitley v. Albers, 475
U.S. 312, 106 S. Ct. 1078, 89 L. Ed. 2d 251 (1986): “whether force was
applied in a good-faith effort to maintain or restore discipline, or maliciously
and sadistically for the very purpose of causing harm.” Hudson v.
McMillian, 503 U.S. 1, 6, 112 S. Ct. 995, 998, 117 L. Ed. 2d 156 (1992)
(quoting Whitley, at 320-21, 106 S. Ct. at 1085).
The inquiry in this case is an easy one. The video evidence depicts
the events at issue and Plaintiff does not dispute them. Plaintiff failed to
comply with multiple commands of prison officials to remove the material
blocking his cell window and to submit to hand restraints. As a result, he
was subjected to pepper spray three times, and then forcibly cuffed and
carried from his cell. There is no dispute that force was used against him.
Yet the force used was neither unreasonable nor excessive.
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“An officer’s use of force is excessive, and thus violates the
prisoner’s Eighth Amendment right to be free from cruel and unusual
punishments, only if the force “was applied ... maliciously and sadistically
for the very purpose of causing harm.” Campbell v. Sikes, 169 F.3d 1353,
1374 (11th Cir. 1999) (quoting Whitley v. Albers, 475 U.S. 312, 320–21,
106 S. Ct. 1078, 1085, 89 L. Ed. 2d 251 (1986)) (quoted in Miles v.
Jackson, 757 F. App’x 828, 829 (11th Cir. 2018)). The force used against
Plaintiff was not done maliciously or sadistically, but solely for the purpose
of gaining control and placing Plaintiff in restraints. He fought them at
every step. He blockaded the door in an attempt to prevent the chemical
agents from reaching him. He charged at the officers when his cell door
was opened. He attempted to crawl under his bed to avoid being placed in
restraints. He refused to walk, requiring staff to carry him by his arms and
legs. Even then, Plaintiff was continuing to resist by kicking and pulling
while he was carried. Force was necessary. 	See Miles, 757 F. App’x at
830 (finding “there was a need for that force because, as Miles conceded in
his deposition, he not only failed to comply with officer Jackson’s order to
go further into the jail cell, but also evaded Jackson’s attempt to get him to
comply”).
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In addition, considering the five factors 17 in analyzing excessive force
claims, the evidence reveals Defendants did not violate Plaintiff’s rights.
Plaintiff’s own defiant actions compelled the officers to use force to
maintain discipline and order. The force used was not disproportionate.
Only that amount of force which was needed to “control an inmate who has
failed to obey a jailer’s orders” was used. 	See Miles, 757 F. App’x at 830
(quoting Danley v. Allen, 540 F.3d 1298, 1307 (11th Cir. 2008), overruled
on other grounds as recognized by Randall v. Scott, 610 F.3d 701 (11th
Cir. 2010)). It was reasonable for the officers to perceive Plaintiff’s
behavior as threatening, particularly because he rushed forward towards
them when his cell door was opened, and then was combative. The force
used was tempered because officers stopped holding Plaintiff down as
soon as restraints were successfully applied to his hands and feet.
Finally, although it is unnecessary to discuss the fifth factor at length
in light of the analysis explained in considering the motion for judgment on
17 The five factors used to determine whether force was maliciously and sadistically
applied are: “[1] the need for application of force, [2] the relationship between that need
and the amount of force used, [3] the threat ‘reasonably perceived by the responsible
officials,’ ... [4] ‘any efforts made to temper the severity of a forceful response,’ ” and “[5]
[t]he absence of serious injury.” Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 999,
117 L.Ed.2d 156 (1992) (quoting Whitley, 475 U.S. at 321, 106 S.Ct. at 1085) (quoted in
Miles, 757 F. App’x at 829)).
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the pleadings, Plaintiff was not seriously injured. He had a swollen lip and
a red swollen area on his cheek.
Although he subsequently claimed to have suffered a blackened eye
and vision problems, his version of the facts does not support his claim.
Plaintiff alleged in his complaint that he was “hit in the left eye” causing
problems in his “left eye.” ECF No. 60 at 5. First, there is no evidence to
show that Plaintiff was “hit.” Second, there is no evidence to show a
problem with his left eye following the incident. Instead, the evidence
showed redness to his upper right cheek, and subsequently, he was found
to have decreased visual acuity in his right eye. 	Whether that problem is
from his lack of compliance with his blood pressure or something else, it
still does not support his claim that he suffered a “left eye” injury.
The Court finds that the evidence in this case is not disputed.
Because excessive force was not used against him by either Defendant
Bennet or Lurry, neither Defendant failed to protect him from unnecessary
and excessive force. Summary judgment should be granted in favor of the
Defendants.
Finally, Defendants request that this case be designated as frivolous
and malicious. ECF No. 82 at 6-8. Their argument is persuasive - that
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because Plaintiff conceded he was not compliant with orders given to him
by prison officials - the use of force was not unconstitutional. Further, if
Plaintiff had originally alleged in his complaint that he was actively resisting
the orders to submit to restraints, the Court agrees that this case would
likely have been dismissed prior to service. 	Id. at 6.
This lawsuit has been pending for over two years, proceeding to
summary judgment. Yet at this point, Plaintiff only adopted the facts
presented by the Defendants, facts which unquestionably show his rights
were not violated. Their frustration is understandable. Notably, in making
the recommendation that summary judgment should be granted in favor of
the Defendants, the Court has “considered more than the allegations in”
the prisoner’s complaint. 	See Wells v. Brown, 58 F.4th 1347, 1361 (11th
Cir. 2023). This is not a case in which the complaint failed to state a claim;
the evidence refutes the claim. Even so, Plaintiff came forward with zero
evidence to support his claims. He has conceded the events were not as
he claimed in his complaint by presenting Defendants’ version of facts in
response to the summary judgment motion. In light thereof, it appears this
action was maliciously brought, and a “strike” should be assessed against
Plaintiff under § 1915(g) for this action. 	See Sweet v. Boyd, No.
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407-CV-00484-MP-AK, 2010 WL 940360, at *2 (N.D. Fla. Mar. 12, 2010)
(granting defendant’s summary judgment motion and imposing a strike
against plaintiff on the basis that the case was “frivolous and malicious
pursuant to 28 U.S.C. § § 1915(e)(2)” based on the “utter lack of evidence”
plaintiff presented other what a “factually dis-proven affidavit”).
RECOMMENDATION
It is respectfully RECOMMENDED that Defendants’ motion for
judgment on the pleadings, ECF No. 64, be GRANTED in part, and that
Defendants’ motion for summary judgment, ECF No. 72, be GRANTED. It
is also RECOMMENDED that the Clerk of Court be directed to note on the
docket that this case was “malicious” pursuant to 28 U.S.C. §
1915(e)(2)(B)(i).
IN CHAMBERS at Tallahassee, Florida, on December 1, 2025.
S/ 	Martin A. Fitzpatrick
MARTIN A. FITZPATRICK
UNITED STATES MAGISTRATE JUDGE
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NOTICE TO THE PARTIES
Within fourteen (14) days after being served with a copy of this
Report and Recommendation, a party may serve and file specific written
objections to these proposed findings and recommendations. 	Fed. R.
Civ. P. 72(b)(2). A copy of the objections shall be served upon all other
parties. 	A party may respond to another party’s objections within
fourteen (14) days after being served with a copy thereof. Fed. R. Civ.
P. 72(b)(2). 	Any different deadline that may appear on the electronic
docket is for the Court’s internal use only and does not control. 	If a
party 	fails 	to 	object 	to 	the 	Magistrate 	Judge’s 	findings 	or
recommendations as to any particular claim or issue contained in this
Report and Recommendation, that party waives the right to challenge on
appeal the District Court’s order based on the unobjected-to factual and
legal conclusions. 	See 11th Cir. Rule 3-1; 28 U.S.C. § 636.
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