Cartarvis A. Jordan v. Campbell, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13221
____________________
CARTARVIS A. JORDAN,
Plaintiff-Appellant,
versus
STATE OF GEORGIA,
Defendant,
CAMPBELL,
Officer, CO2,
SHARP,
Officer, CO2,
CANTINA ALLEN,
Officer, CO2,
Defendants-Appellees.

-- 1 of 14 --

2 Opinion of the Court 20-13221
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 7:18-cv-00061-HL-TQL
____________________
Before J ORDAN and ROSENBAUM , Circuit Judges, and S TEELE ,* Dis-
trict Judge.
PER C URIAM :
Cartarvis Jordan appeals the district court’s grant of sum-
mary judgment in favor of Richard Campbell, Patrick Sharp, and
Cantina Allen, who are correctional officers at Valdosta State
Prison. The district court ruled that the officers were entitled to
qualified immunity because they had not violated Mr. Jordan’s con-
stitutional rights. Following oral argument and a review of the rec-
ord, we reverse and remand for further proceedings because Mr.
Jordan was not provided relevant discovery and the district court
ruled on an incomplete evidentiary record.1
* The Honorable John Steele, United States District Judge for the Middle Dis-
trict of Florida, sitting by designation.
1 The record contains numerous spellings of Officer Allen’s first name,
see,
e.g., D.E. 19 (Cantina), D.E. 28 (Catina), D.E. 37 (Contina), and of Officer
Sharp’s last name,
see, e.g., D.E. 28 (Sharp), D.E. 37 (Sharpe). As to both of
these officers, we use the spelling in the district court case style for ease of
reference.

-- 2 of 14 --

20-13221 Opinion of the Court 3
I
A
On March 18, 2018, Mr. Jordan was stabbed eleven times by
his cellmate, Rickey Upshaw. The incident began when Officer
Sharp and Officer Campbell came to the men’s cell to take them to
the showers. They ordered Mr. Jordan to put his hands through
the cell door’s food slot so that they could handcuff him, and Mr.
Jordan complied. Mr. Upshaw, who had not yet been cuffed, re-
trieved a shank from his lockbox and began stabbing Mr. Jordan.
He stabbed Mr. Jordan four times in the head, four times in the
back of his left arm, two times in his legs, and once in his chest.
While Mr. Jordan was being stabbed, Officer Sharp radioed
for backup. Neither Officer Sharp nor Officer Campbell intervened
in any way—they did not order Mr. Upshaw to stop stabbing Mr.
Jordan, use pepper spray, or physically try to restrain Mr. Upshaw.
Eventually, Officer Allen responded to the call for backup and ar-
rived at the cell.
All of these facts are undisputed. But other facts, as ex-
plained below, are not.
B
On April 17, 2018, Mr. Jordan filed a
pro se verified com-
plaint under 42 U.S.C § 1983 against the officers. Mr. Jordan as-
serted that they had violated his Eighth Amendment rights by (1)

-- 3 of 14 --

4 Opinion of the Court 20-13221
failing to prevent the attack on him by Mr. Upshaw and (2) failing
to intervene while Mr. Upshaw was stabbing him.2
In later filings—all but one of which was verified—Mr. Jor-
dan set out additional allegations in support of his claims, most of
which the officers disputed. First, he asserted that after Officer Al-
len arrived at the cell, Mr. Upshaw threw the first shank out of the
cell but that he later “pulled out another shank and began hitting
[Mr. Jordan] with it again.” D.E. 47 at 2. He claimed that Mr.
Upshaw only threw the first shank out of the cell because he con-
vinced him to, rather than as the result of any action by the officers.
Second, with respect to the timing of the attack—something which
would prove to be critical—Mr. Upshaw stated that there “was no
way that he was in the [cell] with [Mr.] Upshaw for less than a mi-
nute during the . . . incident.”
Id. at 3. He later added that he “ha[d]
two witnesses who [would] testify . . . that [he] was in the cell an
additional 5 to 7 minutes until [Mr.] Upshaw threw out the second
weapon.” D.E. 50 at 8.
C
Mr. Jordan’s case eventually proceeded to discovery. He
sent the officers numerous requests for production, seeking docu-
ments such as the incident reports related to the stabbing and the
prison’s handcuffing policies.
2 The State of Georgia was also named as a defendant in the complaint, but
was dismissed on September 4, 2018, because the claims against it were barred
by the Eleventh Amendment.
See D.E. 8; D.E. 22.

-- 4 of 14 --

20-13221 Opinion of the Court 5
On October 29, 2018, Mr. Jordan filed a motion for extension
of time to complete discovery, stating that he had not yet received
responses to the requests for production. He requested that the
district court extend the discovery period until 45 days from the
date of receipt of that discovery.
See D.E. 25. The following day,
the district court entered an order directing the officers to address
the status of their responses to Mr. Jordan’s requests for production
and their position on the requested extension.
See D.E. 26.
The officers responded, stating in part that they would be
producing the incident reports and handcuffing policies.
See D.E.
28 at 2. They further stated that they had no objection to continued
extensions of time in the event that they were unable to timely pro-
duce the documents. The officers advised the district court that
they “d[id] not intend to hamper [Mr. Jordan’s] ability to prosecute
his case by late production of documents.”
Id.
Then, beginning on December 18, 2018, Mr. Jordan filed
three separate motions to compel. The motions specified that alt-
hough the officers had produced some of the requested docu-
ments, they had failed to turn over the incident reports from the
stabbing on March 18, 2018.
See D.E. 31, 33–34. The officers re-
sponded to the motions, representing that they had complied with
their discovery obligations. The magistrate judge subsequently

-- 5 of 14 --

6 Opinion of the Court 20-13221
entered an order denying the motions to compel because Mr. Jor-
dan had not complied with the local rules.
See D.E. 36.3
Two weeks later, the officers filed their motion for summary
judgment, arguing that Mr. Jordan could not demonstrate that they
had knowledge of the fact that Mr. Upshaw was a danger. They
stated that Mr. Upshaw “was a well-respected inmate” who they
had no “reason to believe . . . was a threat to anyone.” D.E. 38 at
6. They also asserted that they had acted reasonably under the cir-
cumstances, particularly given the fact that “the assault by [Mr.]
Upshaw ended within 60 seconds after it started.”
Id. at 8–9. They
further argued that the claims were barred by qualified immunity.
Mr. Jordan opposed the motion, in part arguing that sum-
mary judgment should not be entered against him “because [the
d]efendants ha[d] not complied with his discovery requests.”
See
D.E. 49 at 11 (citing D.E. 41 at 10). Mr. Jordan’s opposition made
clear that he was not in possession of “the most important and ma-
terial [documents] to the case at bar . . . the incident reports.” D.E.
41 at 11.
The magistrate judge issued a report recommending that
the officers’ motion for summary judgment be granted on qualified
3 We now know that the officers in fact had
not complied with their discovery
obligations at the time they filed their responses to Mr. Jordan’s motions to
compel.
See Oral Argument Audio at 11:14–16, 13:13–24. After we set this
case for oral argument and appointed counsel for Mr. Jordan, the officers pro-
vided copies of the incident report, the emergency report, and the internal in-
vestigation report to his new attorneys.
See Appellant’s Br. at Ex. A–C.

-- 6 of 14 --

20-13221 Opinion of the Court 7
immunity grounds. The report specifically addressed the discovery
claims and concluded that Mr. Jordan “had an adequate oppor-
tunity for discovery.” D.E. 49 at 12. In reaching that conclusion,
the magistrate judge expressly relied on the officers’ representation
that they had produced the relevant documents to Mr. Jordan and
complied with their discovery obligations.
See id. Because of this,
and because Mr. Jordan had not served any other requests for pro-
duction of documents, the magistrate judge found that outstanding
discovery did not present a bar to summary judgment.
See id. at
12–13. On the merits, the magistrate judge concluded that the of-
ficers were entitled to summary judgment regarding “any failure
to intervene once the attack had begun” because “[b]ased upon the
facts before the [c]ourt that the incident was very short and less
than one minute . . . [the officers] did not have a realistic chance to
intervene given the brevity of the attack.”
Id. at 9–10 (internal quo-
tation marks and citations omitted). The magistrate judge also
concluded that the officers were entitled to qualified immunity be-
cause “the facts [did] not show that [the officers] violated a consti-
tutional right.”
See id. at 11.
Over Mr. Jordan’s objection,
see D.E. 50, the district court
adopted the report and recommendation, and granted summary
judgment in favor of the officers. This appeal followed.
II
We review for an abuse of discretion the grant or denial of
discovery under rule 56(d).
See Fla. Power & Light Co. v. Allis

-- 7 of 14 --

8 Opinion of the Court 20-13221
Chalmers Corp., 893 F.2d 1313, 1316 (11th Cir. 1990) (citing to a
prior label).
III
On appeal, Mr. Jordan argues that the district court erred in
“granting summary judgment before [he] obtained . . . requested
discovery.” Appellant’s Initial Br. at 13. He asserts that the officers
“promised to turn [the incident reports and prison policies] over
but never did.”
Id. As a result, he argues that we should reverse
and remand to “give [him] a chance to rely on this discovery when
responding to the [officers’] summary judgment motion.”
Id. at 14.
We agree that the district court abused its discretion.
“The law in this circuit is clear: the party opposing a motion
for summary judgment should be permitted an adequate oppor-
tunity to complete discovery prior to consideration of the motion.”
Jones v. City of Columbus, 120 F.3d 248, 253 (11th Cir. 1997) (citing
Snook v. Tr. Co. of Ga. Bank of Savannah, N.A., 859 F.2d 865, 870–
71 (11th Cir. 1988);
WSB–TV v. Lee, 842 F.2d 1266, 1269 (11th Cir.
1988)). “Generally[,] summary judgment is inappropriate when
the party opposing the motion has been unable to obtain responses
to his discovery requests.”
Snook, 859 F.2d at 870 (citation omit-
ted).
See also Cowan v. J.C. Penney Co., Inc., 790 F.2d 1529, 1532
(11th Cir. 1986) (“We have held that, generally, summary judg-
ment is premature when the moving party has not answered the
opponent’s interrogatories.”) (citation omitted). This is “especially
true” where the propounded discovery “request[s] information

-- 8 of 14 --

20-13221 Opinion of the Court 9
that is critical to the issues in dispute.”
Cowan, 790 F.2d at 1532–
33.
Mr. Jordan asserted claims against the officers for failure to
prevent the attack and failure to intervene. We have held that “an
officer who is present at the scene and who fails to take reasonable
steps to protect the victim of another officer’s use of excessive force
can be held liable for his nonfeasance.”
Velazquez v. City of Hia-
leah, 484 F.3d 1340, 1341 (11th Cir. 2007). The duty to intervene in
such a situation arises when “the non-intervening officer was in a
position to intervene yet failed to do so.”
Hadley v. Gutierrez, 526
F.3d 1324, 1331 (11th Cir. 2008). An officer is “in a position to in-
tervene” when the use of force at issue “may have lasted as long as
two minutes.”
Priester v. City of Riviera Beach, Fla., 208 F.3d 919,
925 (11th Cir. 2000) (emphasis omitted). Although we have not
addressed the question of an officer’s duty to intervene in an in-
mate-on-inmate attack, as the magistrate judge recognized, district
courts within the circuit have discussed the issue.
See, e.g., Metcalf
v. Hetzel, No. 13-cv-002, 2015 WL 7751683, at *7 (M.D. Ala. Oct.
22, 2015);
Williams v. Simmons, No. 11-cv-378, 2014 WL 1664549,
at *3, 9 (N.D. Fla. Apr. 24, 2014);
Clary v. Hasty, No. 12-cv-044,
2013 WL 4008634, at *4 (M.D. Ga. Aug. 5, 2013). Those courts
have concluded, in the inmate-on-inmate context, that the non-in-
tervening officer must have had a realistic chance to intervene and
act in time in order to have violated his duty to intervene—just as
we have held in the officer-on-inmate context.
Cf. Harrison v. Cul-
liver, 746 F.3d 1288, 1298 (11th Cir. 2014) (“Prison officials have an

-- 9 of 14 --

10 Opinion of the Court 20-13221
obligation to protect prisoners from violence inflicted upon them
by other prisoners.”).
So if the attack on Mr. Jordan had been by an officer rather
than another inmate, the officers may have had a duty to intervene.
If the stabbing lasted five to seven minutes, as Mr. Jordan contends,
and not “60 seconds,” as the officers contend, the officers had an
opportunity to do something. The duration of the attack on Mr.
Jordan, then, speaks directly to the officers’ duty to intervene.
The reports related to the stabbing are arguably the most
important piece of discovery for Mr. Jordan’s claims. And we now
know that the incident report, the emergency report, and the inter-
nal investigation report, at least in part, corroborate Mr. Jordan’s
account of the stabbing incident. For example, the reports indicate
an apparent time discrepancy. The incident report states that the
stabbing occurred at 7:44 a.m. and that Mr. Jordan was taken to the
hospital at 9:15 a.m. The emergency report states that the stabbing
occurred at 8:15 a.m. and that Mr. Jordan was transported to the
hospital at 9:25 a.m. The internal investigation report states that
the incident took place at 9:06 a.m. and makes no mention of when
Mr. Jordan was taken to the hospital. The timing and length of the
attack was crucial to the officers’ arguments both below and on ap-
peal. And, as we have stated, it may also be critical to the merits of
Mr. Jordan’s failure to intervene claim.
See, e.g., Hadley, 526 F.3d
at 1331. The officers contend that the attack lasted less than one
minute, which made it hard (or impossible) for them to respond,
prevent, or intervene. Mr. Jordan, for his part, asserts that he has

-- 10 of 14 --

20-13221 Opinion of the Court 11
witnesses who will state that it actually lasted several minutes. The
times reported on each of the documents matters to Mr. Jordan’s
claims and to his response to the officers’ asserted defenses.
The incident report also indicates that Mr. Upshaw in fact
had “2 homemade weapons,” states that he “stabb[ed] [Mr. Jordan]
with two homemade weapons,” and notes that “[b]oth weapons
were recovered.” Finally, the reports state that Mr. Upshaw be-
longs to the security threat group (or STG) “Bounty Hunter.” This
suggests that, contrary to what the officers argued below in their
summary judgment motion,
see D.E. 38 at 2, 6, Mr. Upshaw may
not have been “a well-respected inmate” who did not present a
threat to anyone.
Without the incident report, emergency report, and internal
investigation report, Mr. Jordan did not have adequate discovery
with which to refute many of the officers’ factual and legal asser-
tions at summary judgment. And that is a problem.
See Dean v.
Barber, 951 F.2d 1210, 1213 (11th Cir. 1992) (“[A]lthough Sheriff
Bailey responded to Dean’s interrogatories, we cannot say from the
record that the responses were complete or that Dean had an ade-
quate opportunity to discover the facts necessary to justify his op-
position to Sheriff Bailey’s motion for summary judgment.”).
The district court abused its discretion in not delaying its
consideration of summary judgment. The magistrate judge and
the district court were on notice of the outstanding discovery issue.
Mr. Jordan repeatedly complained that the officers had not given
him a copy of the incident report.
See, e.g., D.E. 25 (motion for

-- 11 of 14 --

12 Opinion of the Court 20-13221
extension of time to complete discovery); D.E. 31, 33–34 (motions
to compel discovery responses); D.E. 41 at 10–11 (opposition to
motion for summary judgment); D.E. 50 at 3–4 (objection to report
and recommendation). And he was clear that he opposed sum-
mary judgment because of the officers’ failure to adequately re-
spond to his discovery requests.
See D.E. 41 at 10–11 (stating that
the officers had “circumvent[ed] the proper discovery procedure”
and failed to provide him a copy of the incident report). Mr. Jordan
did not merely assert general complaints about wanting additional
unspecified discovery; he specified what he needed and was miss-
ing—the incident report of the stabbing, a document essential to
his claim. The report and recommendation from the magistrate
judge, which the district court “review[ed]” and “accept[ed],” set
forth Mr. Jordan’s opposition on the same grounds.
See D.E. 49 at
11–12; D.E. 53.4
4 Based on our precedent, it is immaterial that Mr. Jordan did not file a separate
Rule 56(f) affidavit.
See Snook, 859 F.2d at 871.
See also Wallace v. Brownell
Pontiac-GMC Co., 703 F.2d 525, 527 (11th Cir. 1983) (stating that Rule 56(f) “is
infused with a spirit of liberality”). We have recognized that “the interests of
justice sometimes require postponement in ruling on a summary judgment
motion, although the technical requirements of Rule 56(f) have not been met.”
Fernandez v. Bankers Nat. Life Ins. Co., 906 F.2d 559, 570 (11th Cir. 1990) (cit-
ing
Snook, 859 F.2d at 871). Mr. Jordan’s opposition to the motion for sum-
mary judgment, which was sworn to and notarized as an affidavit would be,
was sufficient to apprise the magistrate judge and the district court of the of-
ficers’ failure to produce the incident report.

-- 12 of 14 --

20-13221 Opinion of the Court 13
At oral argument, counsel for the officers acknowledged
that Mr. Jordan had not received any of the reports related to the
stabbing before the district court granted summary judgment, de-
spite having requested them in discovery.
See Oral Argument Au-
dio at 13:21–24. Counsel for the officers also agreed that the inci-
dent report should have been timely produced to Mr. Jordan.
See
id. at 14:27–28. We thank counsel for her candor.5
Under our precedent, Mr. Jordan was entitled to a copy of
the incident report, as requested, prior to the district court’s grant
of summary judgment. The court erred in granting the officers’
motion before they had adequately responded to Mr. Jordan’s dis-
covery requests and complied with their discovery obligations.6
5 We do not hold that a district court must
sua sponte delay summary judg-
ment after the end of discovery where there are no pending motions to com-
pel or a request to extend the discovery period. But in this particular case, in
which the magistrate judge denied several motions to compel due to an im-
prisoned pro se litigant’s failure to comply with a technical requirement of the
local rules—failure to certify good faith conferral with opposing counsel—and
the district court was aware that Mr. Jordan was clearly entitled to (at least
part of) the discovery he sought—the incident report for his incident and Mr.
Upshaw’s prior incident—“[t]he interests of justice” require more.
See Fer-
nandez, 906 F.2d at 570.
6 We thank Thomas Burch, Esq. and the University of Georgia School of Law
for accepting the appointment to represent Mr. Jordan on appeal. Given the
factual issues raised by the contents of the incident report, the emergency re-
port, and the internal investigation report, on remand the district court may
want to reconsider appointing counsel for Mr. Jordan.

-- 13 of 14 --

14 Opinion of the Court 20-13221
IV
We vacate the summary judgment in favor of the officers
and remand for further proceedings. The parties are free to move
for summary judgment once the district court ensures that all rele-
vant discovery has been provided.7
VACATED and REMANDED.
7 We don’t consider whether the officers are entitled to qualified immunity
because we lack a full evidentiary record. The district court can address the
issue on remand in light of the new evidence.

-- 14 of 14 --