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Jackson v. Catanzariti

United States District Court, S.D. Georgia, Statesboro Division

October 2, 2019

MIGUEL JACKSON; and KELVIN STEVENSON, Plaintiffs,
v.
JOSEPH CATANZARITI, et al., Defendants.

          ORDER

          R. STAN BAKER, UNITED STATES DISTRICT JUDGE

         Before the Court are Defendants Joshua Eason, Derius Attical, and Sherry Ritchie's Motions for Summary Judgment as to all claims brought against them in this action. (Docs. 233, 237, 244.) This case arises out of a December 31, 2010 disturbance at Smith State Prison in Glennville, Georgia, where Plaintiffs allege that Defendants, corrections officers, either subjected them to excessive force or failed to intervene on their behalf, or both, in violation of their constitutional rights. (Doc. 24.) Against Defendants Eason, Attical, and Ritchie, Plaintiffs bring Eighth Amendment excessive force and failure to intervene claims pursuant to 42 U.S.C. § 1983, regarding alleged unlawful force inflicted upon them in the prison dorm, during their escort to the infirmary, and while they were in the infirmary. (Id.) In their Motions for Summary Judgment, Defendants Eason, Attical, and Ritchie argue that the undisputed evidence shows they neither used excessive force against Plaintiffs nor were in a position to intervene in other officers' use of force during the events in question. (Docs. 233, 237, 244; see also docs. 233-1, 238, 244-1.) They also contend that qualified immunity bars Plaintiffs' claims against them. (Id.) Plaintiffs filed Responses in Opposition, (docs. 277, 278, 282), to which Defendants Eason, Attical, and Ritchie filed Replies, (docs. 293, 294, 295).

         For the reasons set forth below, the Court GRANTS in part and DENIES in part Defendants Eason and Attical's Motions for Summary Judgment, (docs. 233, 237), but GRANTS in full Defendant Ritchie's Motion for Summary Judgment, (doc. 244). Specifically, the Court:

GRANTS Defendant Eason's Motion as to: both Plaintiffs' in-dorm failure to intervene and excessive force claims; Plaintiff Stevenson's escort excessive force claim; and both Plaintiffs' claims regarding failure to intervene and excessive force in the prison's infirmary. As such, the Court DISMISSES with prejudice these claims against Defendant Eason as well as Plaintiffs' supervisory liability claims against him.
DENIES Defendant Eason's Motion as to: the portion of his Motion predicated on Plaintiffs' alleged failure to exhaust and state a claim; and both Plaintiffs' escort failure to intervene claims and as to Plaintiff Jackson's escort excessive force claim. As such, these claims remain pending before the Court.
GRANTS Defendant Attical's Motion as to: Plaintiff Jackson's in-dorm failure to intervene and excessive force claims; Plaintiff Stevenson's escort excessive force claim; and both Plaintiffs' claims regarding failure to intervene and excessive force in the prison's infirmary. As such, the Court DISMISSES with prejudice these claims against Defendant Attical.
DENIES Defendant Attical's Motion as to: Plaintiff Stevenson's in-dorm failure to intervene and excessive force claims; Plaintiff Jackson's escort failure to intervene and excessive force claims; and Plaintiff Stevenson's escort failure to intervene claim. As such, these claims remain pending before the Court.
GRANTS Defendant Ritchie's Motion as to all failure to intervene and excessive force claims alleged against her by Plaintiffs. As such, the Court DISMISSES with prejudice all of Plaintiffs' claims against her and DIRECTS the Clerk of Court to TERMINATE her as a Defendant upon the docket and record of this case.

         In light of this disposition, the Court ORDERS all remaining parties to file one joint updated status report within twenty-one (21) days of the date of this Order.[1] The parties shall address the status of this case and whether the parties are prepared to proceed to trial. The parties' report must also address the status of those Defendants who were not subject to this Order or the companion Order filed contemporaneously herewith, (doc. 313). As previously indicated, (docs. 174, 231), the parties have discussed voluntarily dismissing, pursuant to Federal Rule of Civil Procedure 41(a), the following yet to be dismissed Defendants: Carolyn Carrol, Kim Hardee, Jeffery Mullis, and Joseph White. However, in their Stipulation of Dismissal, (doc. 232), the parties declined to dismiss these Defendants, and they remain in this case. The parties must update the Court on the status of these defendants and their relevancy to this case. Furthermore, Plaintiffs have failed to file the requisite proof of service as to Defendants Brandon Cearnel, Christopher Henderson, Candice Hill, John Jones, Justin Swope, and Gene Tootle. Pursuant to Federal Rule of Civil Procedure 4(m), the Court ORDERS Plaintiffs to show cause, within twenty-one (21) days of the date of this Order, as to why these Defendants should not be dismissed from this action for lack of timely service. Additionally, Plaintiffs must explain these Defendants' continued relevancy to this case and what actionable claims, if any, remain against them. Alternatively, Plaintiffs may move to dismiss these Defendants rather than showing cause regarding Plaintiffs failure to properly comply with Federal Rule of Civil Procedure 4(m).

         BACKGROUND

         I. Procedural History

         Plaintiffs, formerly inmates at Smith State Prison (“Smith State”) in Glennville, Georgia, brought this 42 U.S.C. § 1983 action on December 10, 2012, alleging that Defendants violated their constitutional right to be free from excessive force while they were incarcerated at Smith State. (Doc. 1.) Plaintiffs filed their First Amended Complaint on January 25, 2013, specifically claiming that, during a prison disturbance occurring the night of December 31, 2010, Defendants used excessive force against them, failed to intervene in other officers' use of excessive force against them, or both. (Doc. 24, pp. 5-17.) Plaintiffs set forth these claims under two general counts: Count One against all Defendants for violations of the Eighth and Fourteenth Amendments; and Count Two against Defendant Eason and two other Defendants for Supervisory Liability. (Id. at pp. 17-21.) After Plaintiffs filed their First Amended Complaint, the Court stayed this civil action while criminal proceedings against Plaintiffs, stemming from the December 31, 2010 incident at Smith State, ran their course. (Doc. 81.)

         Over three years later, following the end of criminal proceedings against Plaintiffs, the Court lifted the previously imposed stay. (Doc. 118.) A lengthy, disputed, and heavily litigated discovery period ensued. (See, e.g., Docs. 168, 175, 177, 196, 202, 221, 222, 224-26, 228.) After multiple extensions and the resolution of several disputes, discovery in this case finally closed on December 15, 2017, with motions for summary judgment due on February 5, 2018. (Docs. 221, 228.) Pursuant to this deadline, Defendants Eason, Attical, and Ritchie (“Defendants”) filed the present Motions for Summary Judgment.[2] (Docs. 233, 237, 244.)

         II. Factual Background

         The Court begins this Background section by setting forth the general, undisputed facts of the case relevant to the disposition of Defendants' Motions for Summary Judgment. Subsequently, the Court delves into the facts, both undisputed and disputed, particular to each Defendant's Motion presently before the Court.

         At the time of the subject events, Plaintiffs were inmates in the custody of the Georgia Department of Corrections (“GDC”) and assigned to the D-2 dorm at Smith State.[3] (Doc. 282-1, p. 1.) On the night of December 31, 2010, corrections officers in charge of D-2 instituted a lockdown to search for contraband and released the inmates to dinner. (Doc. 278-1, p. 1.) While searching cell D-234, located on the second story of the dorm and assigned to Plaintiff Jackson, Defendant Joseph Catanzariti uncovered a substance resembling marijuana hidden in a pillow. (Doc. 277-1, p. 2.) Defendant Catanzariti continued his search and located cellphones hidden behind a heater vent; he then requested a screwdriver, hammer, and channel locks so that he could open the vent and seize the contraband. (Id.)

         Defendant Catanzariti and the other officers had not yet finished conducting their contraband search when inmates returned to D-2 from dinner.[4] (Doc. 278-1, p. 2.) Inmates were moving freely about the dorm on the top and bottom ranges as Defendant Catanzariti searched cell D-234. (Doc. 277-1, p. 2.) Before the disturbance began, multiple inmates dressed in heavy clothing and boots were congregating outside of D-234, which caused officers concern that an incident was imminent and prompted a call for assistance. (Id. at pp. 2-4; doc. 282-1, pp. 2-3.) Defendants Ritchie and Bennett were present with Defendant Catanzariti at that time, and over ten additional officers eventually arrived on the top range. (Doc. 277-1, p. 4.) In total, approximately ninety-six inmates who resided in D-2 were in various parts of the dorm at this time. (Doc. 282-1, p. 2.) At some point after inmates returned from dinner, Defendants Catanzariti and Andrew McFarlane ordered the inmates to “lockdown” by going into their cells and closing the door. (Doc. 291, pp. 7-8.) Some inmates, however, refused to lockdown. (Id.)

         After the lockdown was ordered and additional officers had arrived on the scene, (id.), Defendant Catanzariti finished searching D-234 and exited onto the walkway carrying tools and contraband seized from the cell, (doc. 277-1, pp. 3-4; doc. 278-1, p. 2). Plaintiffs went upstairs to ask Defendant Catanzariti about the lockdown. (Doc. 291, p. 8.) As Defendant Catanzariti walked on the second-story range outside of cell D-234, Plaintiff Jackson, who resided in the searched cell, confronted Catanzariti and told him to “give me that stuff.” (Doc. 282-1, p. 3.) The two exchanged words, and Plaintiff Jackson then, according to him, “playfully swiped” at Catanzariti, causing Catanzariti to turn away to protect the tools and contraband he held in his hands. (Id. at pp. 3-4; doc. 278-1, pp. 2-3.) Defendant Catanzariti then struck Plaintiff Jackson in response.[5] (Doc. 277-1, pp. 6, 16.) Immediately following this altercation, the disturbance erupted with several inmates and officers fighting in a skirmish close by on the upper level range. (Doc. 277-1, pp. 4-6; see also doc. 278-1, p. 3; doc. 282-1, p. 4.)

         During the disturbance, both Plaintiffs were involved in separate physical altercations with officers on the upper range. (Doc. 282-1, p. 2.) Defendant Ritchie called for backup and more officers arrived on the scene. (See Doc. 291, pp. 12-14.) After Plaintiff Stevenson was handcuffed and restrained in a prone position on the ground by two officers, Defendant Catanzariti struck Stevenson multiple times toward his head area.[6] (Doc. 291, pp. 21-22; HHV at 11:02:47- 11:02:52PM.) Elsewhere in the dorm, inmates were in their cells or assumed prone positions on the ground as officers worked to regain control of the situation. (CAM 7 at 22:04:30-22:09:45.) In order to quell the disturbance, officers deployed pepper spray and were able to quickly subdue the inmates. (Doc. 278-1, p. 3; doc. 282-1, p. 25.) Starting from when the commotion began until the time at which corrections officers on the scene had largely quelled the situation, approximately two minutes passed. (See HHV at 11:00:00-11:03:45PM; CAM 9 at 22:07:20-22:09:30.)

         However, soon after officers regained control of the situation, Defendant Catanzariti became involved in another physical altercation with Plaintiff Jackson. (Doc. 282-1, pp. 26-28; HHV 11:04:00-11:07:43PM.) In this instance, Defendant Catanzariti made an arm movement toward Plaintiff Jackson's head with an object in his hand-while Jackson was handcuffed, held, and surrounded by other officers-that caused Jackson to collapse to the ground.[7] (Doc. 291, pp. 124-29; HHV at 11:07:25-11:07:40PM.) Officers, including Defendant Eason, then escorted a bloodied Plaintiff Jackson down the stairs from the upper range and out of the D-2 dormitory. (Doc. 282-1, pp. 29-32, 36; HHV at 11:07:40-11:08:03PM.) Less than one minute prior to this escort, Defendant Harrison and another officer escorted a bloodied Plaintiff Stevenson down the same stairs and out of D-2, toward the infirmary. (Doc. 268, pp. 7, 11-12, 25-27; HHV at 11:06:51-11:06:59PM; CAM8 at 22:13:30-22:13:40.)

         Once out of the dormitory, Plaintiffs were taken to the prison infirmary for treatment. (Doc. 278-1, p. 9.) Plaintiffs allege that, after being steered through D-2's sally port and brought outside, multiples officers repeatedly beat them during the rest of their escort to the infirmary and while they were held there.[8] (Id.; doc. 282-1, pp. 36-39.) Plaintiffs' medical conditions required that they be taken to the hospital that night for evaluation and treatment, but they did not stay overnight and later returned to Smith State's medical unit. (Doc. 291, pp. 22-23, 63-64; see doc. 233-2, pp. 84-94 (Plaintiffs' medical records).)

         Plaintiff Stevenson suffered extensive injuries to his head area, including a fractured right eye orbital socket (upper and lower), a broken jaw, damage to a vertebra in his neck, severe facial damage on the right side of his face, nerve damage in his shoulder and neck, lost teeth, headaches, and PTSD. (Id. at pp. 22, 60; see also doc. 259-2, pp. 52-54 (photographs of Plaintiff Stevenson's injuries); doc. 233-2, pp. 89-94 (Plaintiff Stevenson's medical records.)) Plaintiff Jackson's injuries were not as significant, but per his testimony, he suffered a broken nose, facial lacerations, a knocked-out tooth, knee complications, a ruptured ear drum, headaches, and PTSD. (Doc. 291, p. 145; see also doc. 282-2, pp. 10-11 (photographs of Plaintiff Jackson's knee injury); doc. 281, pp. 46-48 (photographs of Plaintiff Jackson's head injuries); doc. 233-2, pp. 84-88 (Plaintiff Jackson's medical records).) The medical evidence of record shows that both Plaintiffs' main injuries were to their head areas. (See Doc. 282-1, pp. 34, 41.)

         With this general overview in mind, the Court now turns to detailing what the evidence shows Defendants did, or did not do, in relation to the prison disturbance incident and Plaintiffs' ensuing excessive force and failure to intervene claims. The Court begins each section by outlining the specific claims Plaintiffs maintain against each Defendant at summary judgment, based on their stipulations to the evidence of record. To parallel Plaintiffs' alleged claims, the Court will recount what the evidence shows as to these Defendants' conduct in the D-2 dorm, during the escort to the prison's infirmary, and in the infirmary. As will be seen, the parties dispute much of the evidence in this regard.

         A. Defendant Joshua Eason

         Against Defendant Eason, Plaintiffs are pursuing claims for his alleged: (1) failure to intervene in Plaintiffs' dorm altercations with officers, (2) failure to intervene in the events which took place during Plaintiffs' escort outside of D-2, and (3) excessive force during Plaintiff Jackson's escort outside. (See Doc. 282-1, pp. 4-9, 20-23, 27-32, 35-40.)

         (1) Events in the D-2 Dormitory

         Prior to the start of the disturbance, Defendant Eason entered D-2 carrying a large pepper-spray canister and walked half-way up the stairs nearest where inmates were gathering before walking back downstairs. (Doc. 282-1, p. 11; CAM 8 at 22:06:16-22:07:21.) When the skirmish between officers and inmates began seconds later, Defendant Eason stood on the bottom range of D-2, just below the area of the top range where the disturbance unfolded. (Doc. 282-1, p. 11.) Almost immediately, he darted toward the action and discharged a torrent of pepper spray upward, at the skirmishing group of officers and inmates, for approximately thirteen seconds. (Id.; CAM 9 at 22:07:22-22:07:37.) He then went upstairs to assist Officer Henderson in handcuffing an inmate who was to the left of the top of the stairs, but the parties dispute which inmate Defendant Eason assisted with, and the evidence on this point is unclear. (Doc. 282-1, p. 12; CAM 8 at 22:07:50-22:07:57; CAM 9 at 22:07:43-22:07:52.)

         Defendant Eason testified that, although he did not recall going upstairs at this time, he believed the video evidence showed him assisting with handcuffing Plaintiff Jackson. (Doc. 270, pp. 24-25.) Officer Henderson testified that he was not sure whether Defendant Eason assisted in handcuffing either Plaintiff Stevenson or Jackson and that he was also not sure whether he himself ever cuffed either Plaintiff, but Henderson acknowledged that his witness statement indicated he handcuffed Plaintiff Jackson. (Doc. 266, pp. 4-6, 15, 25-26, 28.) Surveillance camera footage depicts Defendant Eason going upstairs and bending down to assist with an inmate located at the top of the stairs to the left, in the location where Plaintiff Jackson alleges Defendant Catanzariti struck him. (CAM 8 at 22:07:50-22:09:07; CAM 9 at 22:07:43-22:09:02; HHV at 11:07:27- 11:07:32PM; doc. 282-1, pp. 25-27; see also doc. 259-2, p. 5 (Plaintiff Stevenson's Declaration identifying himself in the skirmish located further down to the left of the upper range from where Plaintiff Jackson alleges Defendant Catanzariti struck him).)

         After assisting for approximately one minute, Defendant Eason headed back down the stairs and toward the control booth, away from the top-range skirmishes. (Doc. 282-1, pp. 12-13; CAM 8 at 22:09:00-22:09:18; CAM 9 at 22:09:02-22:09:08.) At this juncture, Defendant Eason appears to have left the scene as he was no longer visible on the surveillance camera video. (Id.) While Defendant Eason was away from the action, Defendant Catanzariti struck Plaintiff Stevenson several times toward the head area. (HHV at 11:02:47-11:02:52PM; doc. 282-1, pp. 14-15; see also doc. 233-2, p. 82 (“Summary of Video Evidence” chart submitted by Defendant Eason noting that Eason left the upper range fifteen seconds before the strikes seen on the HHV).) Sixteen seconds later, Defendant Eason returned to the bottom range and walked back up the same flight of stairs toward where Plaintiffs were restrained. (Doc. 282-1, pp. 13-14; CAM 8 at 22:09:35-22:10:00; CAM 9 at 22:09:38-22:09:56.) The parties dispute, however, whether this was the only time that Defendant Catanzariti struck Plaintiff Stevenson and also where Defendant Eason was during all of Catanzariti's alleged strikes. (Doc. 282-1, pp. 14-23.)

         At his deposition, Plaintiff Stevenson testified Defendant Catanzariti struck him ten to fifteen times with a hammer, while he was lying handcuffed on the floor of the upper range, causing him to momentarily lose consciousness. (Doc. 240-3, pp. 10-11, 14, 23-24.) It is undisputed that part of this alleged beating is shown on the handheld video-from 11:02:47PM to 11:02:52PM-and that during this portion Defendant Eason was not on the upper range. (Doc. 282-1, pp. 12-17.) However, Plaintiff Stevenson contends that evidence supports his claim that force was being used against him while Defendant Eason was still on the upper range, before he headed back downstairs, and that the handheld video fails to show when the hammer beating incident began. (Doc. 282-1, pp. 13-22.) Defendant Eason maintains that the handheld video captured the entirety of the time period during which force was used against Plaintiff Stevenson in D-2, and that he was downstairs during this time period. (Id.) He also denies ever seeing Catanzariti using force on an inmate that night, (doc. 270, p. 11).

         Plaintiff Stevenson points to the following evidence to show Defendant Eason was still on the upper range during part of the alleged hammer beating incident: Officer Hill testified she saw Defendant Eason on the upper range, near an inmate Catanzariti struck, but she was not sure whether she observed this before or after the events captured on the handheld held video. (Doc. 267, pp. 12, 25-26.) Officer Hill testified to seeing Defendant Eason walk from the vicinity of Catanzariti and the inmate who was lying on the ground at the 11:03:47PM mark, (id. at p. 26), which is after Catanzariti is shown (on the handheld video) striking Plaintiff Stevenson. Defendant Attical testified to seeing Defendant Eason with Catanzariti and other officers prior to these strikes, sometime following the 11:01:52PM mark of the handheld video, but his testimony is unclear as to precisely when or where he saw Defendant Eason with Catanzariti. (Doc. 214, p. 21; see also doc. 291, p. 88.) Officer Davis placed Defendant Eason on the upper range, walking leftward toward a group of officers less than a minute before the strikes captured on the handheld video occurred, but he was not clear which officers Defendant Eason walked toward. (Doc. 212, pp. 22- 23.) Inmate Satterfield testified that he believed he saw Defendant Eason restraining Plaintiff Stevenson during the subject hammer attack. (Doc. 262, pp. 15, 25, 28-29.) He also explained that the at-issue portion of handheld video does not show the time during which he witnessed Defendant Catanzariti strike Plaintiff Stevenson with a hammer. (Id. at pp. 16-18 (indicating that HHV sequence 11:02:47-11:02:50PM occurred after what he witnessed).) Lastly, in the period when Defendant Eason was undisputedly on the upper range after the disturbance broke out-from 22:07:50 to 22:09:00 on surveillance cameras eight and nine-Officer Harvey can be heard on the handheld video shouting, “that a damn hammer.”[9] (HHV at 11:01:46-11:01:50PM; doc. 213, pp. 13-14.) Officer Harvey testified that she recalled seeing someone holding a hammer on the upper range at this time but was not sure who. (Doc. 213, pp. 13-14.)

         Sixteen seconds after Defendant Catanzariti struck Plaintiff Stevenson multiple times, as shown on the handheld video, Defendant Eason reappeared on the bottom range of D-2 and went up the same flight of stairs he had previously traversed. (Doc. 282-1, pp. 13-14; CAM 8 at 22:09:35-22:10:00; CAM 9 at 22:09:38-22:09:56.) While on the upper range at this time, Defendant Eason assisted officers, including Defendant Catanzariti, with arresting and escorting Plaintiff Jackson out of the dormitory.[10] (Doc. 282-1, pp. 26-27, 35-36; doc. 270, pp. 11, 20-23.) Prior to escorting him outside of D-2, Defendant Eason held a handcuffed Jackson up by the back of his shirt, against a wall, while surrounded by other officers. (HHV at 11:07:27-11:07:32PM; doc. 282-1, pp. 26-28.)

         As Defendant Eason held Plaintiff Jackson, Defendant Catanzariti positioned himself between Jackson and another inmate, and then made a single arm movement with an object toward Jackson's head. (Id.) Defendant Catanzariti motioned his arm and the object at Plaintiff Jackson underneath the arms of Defendant Eason, who did not react. (Id.) Plaintiff Jackson, with Defendant Eason still holding the back of his shirt near his arm, then stumbled backward and fell to his knees. (HHV at 11:07:32-11:07:36PM; doc. 282-1, p. 28.) Thereafter, Defendant Eason and another officer lifted Plaintiff Jackson up and escorted him down the stairs and toward the exit of the dormitory, holding him by the back of his shirt. (HHV at 11:07:36-11:07:49PM, 11:07:57- 11:08:04PM; CAM 8 at 22:14:08-22:14:29; doc. 282-1, pp. 30-32.) Defendant Catanzariti and other officers followed closely behind, escorting another inmate toward D-2's exit. (CAM 8 at 22:14:11-22:14:30; HHV at 11:08:03PM; doc. 291, pp. 151, 153-55.)

         Although this incident is captured on the handheld video, the parties dispute whether Defendant Catanzariti contacted Plaintiff Jackson's person and whether he held a flashlight, metal detector, or some other object. Additionally, they dispute whether Plaintiff Jackson resisted in some way and whether he intentionally fell to his knees. (Doc. 282-1, pp. 26-28.) The handheld video is not absolutely conclusive on these issues and the relevant testimony is conflicting. (See HHV at 11:07:27-11:07:36PM; doc. 282-1, pp. 26-30.)

         (2) Escort Outside of the D-2 Dormitory

         Plaintiff Jackson testified that, while outside D-2 and while being escorted to the prison's infirmary, six to seven officers beat him in the knees and legs with objects, and kicked and hit him all over his body. (Doc. 282-1, pp. 33-34; doc. 240-4, pp. 15-16, 18, 33.) Defendant Eason did not escort Plaintiff Jackson all the way to the infirmary, but he did take Jackson outside of D-2. (Doc. 282-1, pp. 35-36; doc. 270, p. 11.) Once outside, Defendant Eason worked to clear his eyes and lungs of pepper spray, and while doing so, other officers took Plaintiff Jackson to the infirmary. (Id.) According to Plaintiff Jackson, he was assaulted by officers once he was outside of D-2 and he suffered additional abuse along the way and in the infirmary itself. (Doc. 282-1, p. 36; doc. 240-4, pp. 15-16, 18, 33.) Three inmates testified to witnessing these assaults against Plaintiff Jackson outside of D-2 and on the way to the infirmary. (Doc. 191, pp. 7-8; doc. 192, pp. 9-10, 19-20; doc. 263, pp. 24-25.) Defendant Eason disputes this account of the events outside of D-2 and denies using excessive force against Plaintiff Jackson while outside the dorm. (Doc. 282-1, pp. 5-7; see doc. 270, p. 11.)

         Plaintiff Stevenson also testified to being beaten during his escort to the prison's infirmary. (Doc. 282-1, pp. 36-37.) Specifically, according to Stevenson, after he was taken outside to the front of D-2, Defendant Catanzariti and other officers attacked him with the butt end of a pepperball gun, kicked him, and punched him using handcuffs as brass knuckles. (Doc. 240-3, pp. 11-12.) While this attack against Plaintiff Stevenson occurred, other officers allegedly watched without intervening. (Id. at p. 14.) One of the inmates who saw the attack against Plaintiff Jackson outside of D-2 also testified that he saw officers attack Plaintiff Stevenson in this same area. (Doc. 263, pp. 12-13.) Other inmates described seeing officers beating handcuffed inmates outside of the dorm. (See Doc. 282-1, pp. 38-39.) Defendant Eason, however, disputes being outside of D-2 when these alleged events took place. (Doc. 282-1, p. 37.) Nonetheless, it is undisputed that Plaintiff Stevenson was escorted out of the dorm approximately one minute before Defendant Eason took Plaintiff Jackson outside. (Id. at p. 40; doc. 291, p. 149; see also CAM 8 at 22:13:21-22:13:40 (Stevenson being escorted toward D-2's sally port), 22:14:08-22:14:29 (Jackson being escorted toward D-2's sally port).) Both Plaintiffs were injured and bleeding prior to being taken out of D-2, and the medical evidence of record indicates severe injuries to their head and facial areas but not elsewhere. (Doc. 282-1, pp. 32-33, 34, 41.)

         B. Defendant Derius Attical

         Against Defendant Attical, Plaintiffs assert claims regarding his alleged: (1) failure to intervene in Plaintiff Stevenson's dorm altercations with officers, (2) use of excessive force against Plaintiffs in the dorm, (3) failure to intervene in the events which took place during Plaintiffs' escort from the dorm, and (4) use of excessive force during Plaintiffs' escort from the dorm. (See Doc. 278, pp. 1-2, 14-22; see also doc. 278-1, pp. 4-11.)

         (1) Events in the D-2 Dormitory

         Prior to the start of the disturbance, when officers were searching for contraband in D-2, Defendant Attical, seen on video wearing a wool cap, was walking around on the bottom range as inmates milled about. (HHV at 10:57:04-10:58:01PM; doc. 214, p. 11.) Defendant Attical circled the bottom range, checking cell doors, before disappearing from the view of any camera. (CAM 9 at 22:03:40-22:04:47; doc. 293, p. 6.) The disturbance broke out two minutes and thirty-six seconds later, with Defendant Attical's precise whereabouts unknown. (Doc. 238, pp. 4-5; doc. 293, p. 6; HHV at 11:00:57PM.) Shortly after it began, however, Defendant Attical was struck with pepper spray in his eyes as he subdued an inmate on the upper level of the dorm. (Doc. 214, p. 22.) Defendant Attical testified that an officer came to assist him with handcuffing the inmate and then walked him to the control booth so he could wash his eyes out. (Id.) It is unclear precisely when this occurred.[11] (Doc. 278-1, pp. 3-4.)

         Almost three minutes after the disturbance began, and approximately fifty seconds after Catanzariti is shown striking Plaintiff Stevenson, Defendant Attical can be seen on the upper range approaching the area where Catanzariti and other officers were still involved with Stevenson. (HHV at 11:03:37-11:03:40PM; doc. 238, p. 5.) Defendant Attical is shown approaching this area from the far side of D-2, away from where Plaintiffs' altercations occurred. (Id.) But the handheld video quickly cuts away before he reaches the group, (HHV at 11:03:40PM), and neither party points to any other video evidence of record showing Defendant Attical's whereabouts during the time period surrounding the disturbance and Plaintiffs' in-dorm use of force claims, (see docs. 238, 278, 278-1, 293).

         However, Plaintiffs assert that several eyewitnesses have placed Defendant Attical near the area where Catanzariti attacked Stevenson during this time period. (Doc. 278-1, pp. 5-8.) For example, Plaintiffs point to the testimony of Defendant Caleb Harrison who testified that Attical was with him on the upper range when the disturbance began and when Harrison tackled Plaintiff Stevenson. (Doc. 268, pp. 5, 19.) In addition, Officer Hill stated that she believed she saw Defendant Attical on the upper range standing near where Catanzariti was engaged with an inmate, but she could not be sure based on her memory. (Doc. 267, pp. 12, 41.) Several inmates-Briscoe, Satterfield, Neely, and Thomas-also testified that Defendant Attical was involved in Plaintiff Stevenson's altercation with Catanzariti in some fashion, including using force against and restraining Stevenson. (See Doc. 278-1, pp. 5-6.) Defendant Attical disputes the weight of this eyewitness testimony and contends that, for various reasons, it fails to show he was ever in a position to intervene on Plaintiff Stevenson's behalf or to use excessive force against him while inside D-2.[12] (Doc. 293, pp. 4-10.)

         (2) Escort Outside of the D-2 Dormitory

         After the disturbance, both Plaintiffs were escorted to the Smith State infirmary to receive treatment. (Doc. 278-1, p. 9.) As has been noted, Plaintiffs allege that officers beat them while they were escorted from the dormitory. (Id.) Defendant Attical did not escort either Plaintiff from D-2, but the surveillance camera shows him quickly following Defendants Eason and Catanzariti as they escorted Jackson and another inmate outside. (CAM 8 at 22:14:30-22:14:33; doc. 278, p. 19.) However, per the evidence submitted by the parties, no witness specifically identified Defendant Attical as an individual who used force against Plaintiffs while they were being escorted to the infirmary. (Doc. 238, p. 9; see docs. 278, 278-1.) The surveillance video only shows Defendant Attical running in the direction of an off-camera exit, and no witnesses placed him outside of D-2 at this time. (Doc. 293, pp. 12-13.)

         C. Defendant Sherry Ritchie

         Against Defendant Ritchie, Plaintiffs are pursuing a single claim: failure to intervene on Plaintiff Stevenson's behalf during his dorm altercation with officers. (See Doc. 277-1, pp. 7-10, 13, 15-16; see also doc. 277, pp. 1-2.)

         Prior to the disturbance, Defendant Ritchie stood in the doorway of D-234 to prevent inmates from entering the cell while Catanzariti searched for contraband. (Doc. 277-1, p. 2.) After completing his search, Catanzariti walked out of the cell carrying tools and seized contraband whereupon he encountered Plaintiff Jackson, a resident of D-234. (Id. at pp. 3-4.) An altercation over the contraband ensued between Catanzariti and Plaintiff Jackson, causing Defendant Ritchie to radio for officer backup. (Id. at pp. 4-6.) Catanzariti struck Plaintiff Jackson, and thereafter the disturbance in D-2 broke out. (Id.)

         Defendant Ritchie claims to have only witnessed this single, initial strike by Catanzariti against Jackson, but Plaintiffs contend that Ritchie also observed Catanzariti striking a compliant, handcuffed Plaintiff Stevenson after the inciting incident. (Id. at pp. 8-10.) Plaintiff Stevenson observed Defendant Ritchie on the upper range while Catanzariti beat him, but he also described how “she had backed away” as the strikes occurred. (Doc. 240-3, p. 11.) On the handheld video, Defendant Ritchie can be seen walking toward and then standing next to Catanzariti as he struck Plaintiff Stevenson, who was lying prone on the ground and restrained by officers. (HHV at 11:02:48-11:02:53PM; doc. 214, pp. 17-18; doc. 213, pp. 15, 19.) She appears to then walk away from the group of officers surrounding Plaintiff Stevenson. (HHV at 11:03:14PM; doc. 260, pp. 8-9.) Approximately thirty-seconds later, Defendant Ritchie was still on the upper range looking toward the group of officers surrounding Plaintiff Stevenson, but by this time, she had moved slightly further down the range in the direction of the stairs. (HHV at 11:03:47PM; doc. 260, pp. 6, 9.) Defendant Ritchie remained on the upper range until she descended the stairs and left the dorm almost two and a half minutes later. (HHV at 11:06:04PM; CAM 8 at 22:12:27- 22:12:58; doc. 260, p. 7.)

         As a matter of background, Defendant Ritchie notes she is 5'2” in height. (Doc. 277-1, p. 13.) In the Fall of 2010, she had surgery to repair meniscus tears and remove arthritic build up in both knees and was out of work for a period of time. (Id.) Defendant Ritchie returned to work that October, but she was still recovering as of December 31, 2010, the night in question. (Id.)

         STANDARD OF REVIEW

         Summary judgment “shall” be granted if “the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it “might affect the outcome of the suit under the governing law.” FindWhat Inv'r Grp. v. FindWhat.com, 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is “genuine” if the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         The moving party bears the burden of establishing that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. See Williamson Oil Co. v. Philip Morris USA, 346 F.3d 1287, 1298 (11th Cir. 2003). Specifically, the moving party must identify the portions of the record which establish that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011) (quoting Fed.R.Civ.P. 56(a)). When the nonmoving party would have the burden of proof at trial, the moving party may discharge his burden by showing that the record lacks evidence to support the nonmoving party's case or that the nonmoving party would be unable to prove his case at trial. See id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). If the moving party discharges this burden, the burden shifts to the nonmovant to go beyond the pleadings and present affirmative evidence to show that a genuine issue of fact does exist. Anderson, 477 U.S. at 257.

         In determining whether a summary judgment motion should be granted, a court must view the record and all reasonable inferences that can be drawn from the record in the light most favorable to the nonmoving party. Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee County, 630 F.3d 1346, 1353 (11th Cir. 2011) (citing Rodriguez v. Sec'y for Dep't of Corr., 508 F.3d 611, 616 (11th Cir. 2007)). However, “facts must be viewed in the light most favorable to the non-moving party only if there is a ‘genuine' dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Fed.R.Civ.P. 56(c)). “[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.” Id. (emphasis and citation omitted).

         DISCUSSION

         Plaintiffs' excessive force and failure to intervene claims, as presented on Defendants' Motions for Summary Judgment, require analysis of the Eighth Amendment's proscription against cruel and unusual punishment.

         That proscription governs the amount of force that prison officials are entitled to use against inmates. Campbell v. Sikes, 169 F.3d 1353, 1374 (11th Cir. 1999). An excessive force claim has two requisite parts: an objective and a subjective component. Sims v. Mashburn, 25 F.3d 980, 983 (11th Cir. 1994). To satisfy the objective component, the inmate must show that the prison official's conduct was “sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). The subjective component requires a showing that the official acted with a “sufficiently culpable state of mind.” Sims, 25 F.3d at 983 (citing Hudson v. McMillan, 503 U.S. 1, 8 (1992)). “The core judicial inquiry . . . is whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34, 37, 39 (2010) (citation and internal quotations omitted) (holding that there is no “significant” or “non-de minimis” threshold injury requirement).

         In order to determine whether the official used force maliciously and sadistically to cause harm or in good faith to restore order, courts consider the following factors: (1) the need for the exercise of force; (2) the relationship between the need for force and the amount of force applied; (3) the extent of injury inflicted on the inmate; (4) the extent of the threat to the safety of staff and other inmates; (5) and any efforts taken to temper the severity of a forceful response. Fennell v. Gilstrap, 559 F.3d 1212, 1217 (11th Cir. 2009)). These factors are viewed from the correctional officer's point of view based on the facts known at the relevant time, and courts are to “give a wide range of deference to prison officials acting to preserve discipline and security.” Id. Deference, however, “is not absolute and does not insulate from review actions taken in bad faith or for no legitimate purpose.” Id. (citing Ort v. White, 813 F.2d 318, 322 (11th Cir. 1987)). “Once a prisoner has stopped resisting there is no longer a need for force, so the use of force thereafter is” unconstitutionally excessive. Danley v. Allen, 540 F.3d 1298, 1309 (11th Cir. 2008).

         The Eighth Amendment also “imposes a duty on prison officials to take reasonable measures to guarantee the safety of the inmates.” Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1099-1100 (11th Cir. 2014) (quoting Farmer, 511 U.S. at 832). Pursuant to this duty, “an officer can be liable for failing to intervene when another officer uses excessive force.” Priester v. City of Riviera Beach, 208 F.3d 919, 924 (11th Cir. 2000) (“If a police officer, whether supervisory or not, fails or refuses to intervene when a constitutional violation such as an unprovoked beating takes place in his presence, the officer is directly liable[.]” (alteration in original) (quoting Ensley v. Soper, 142 F.3d 1402, 1407-08 (11th Cir. 1998))); see also Skrtich v. Thornton, 280 F.3d 1295, 1301 (11th Cir. 2002). “Even if an officer personally did not use excessive force, an officer who is present at the scene can be alternatively liable for failing to take ‘reasonable steps to protect the victim of another officer's use of excessive force.'” Johnson v. White, 725 Fed.Appx. 868, 878 (11th Cir. 2018) (per curiam) (quoting Hadley v. Gutierrez, 526 F.3d 1324, 1330-31 (11th Cir. 2008)).

         “This liability, however, only arises when the officer is in a position to intervene and fails to do so.” Priester, 208 F.3d at 924. A successful claim requires “facts showing the necessity or real opportunity for the defendant-officers to intervene in a fellow officer's unlawful conduct.” Keating v. City of Miami, 598 F.3d 753, 764 (11th Cir. 2010). When events occur so quickly that the officer cannot intervene in the use of excessive force, he or she is not liable for another's constitutional violation. Fils v. City of Aventura, 647 F.3d 1272, 1290 n.21 (11th Cir. 2011) (citing Brown v. City of Huntsville, 608 F.3d 724, 740 n.25 (11th Cir. 2010)). Moreover, if there is no underlying use of excessive force, there is no obligation to intervene. Crenshaw v. Lister, 556 F.3d 1283, 1294 (11th Cir. 2009).

         I. Defendant Eason's Motion for Summary Judgment (Doc. 233)

         At summary judgment, Plaintiffs maintain the following claims against Defendant Eason: (1) failure to intervene in both Plaintiffs' dorm altercations with officers, (2) failure to intervene in the events that took place during both Plaintiffs' escorts outside of D-2, and (3) use of excessive force against Plaintiff Jackson during his escort outside.[13] (See Doc. 282-1, pp. 4-9, 20-23, 27- 32, 35-40; see also doc. 282, pp. 14-19.) Defendant Eason seeks summary judgment as to all claims brought against him by Plaintiffs.[14] (Doc. 233.)

         A. The Parties' Arguments

         As to Plaintiff Stevenson's failure to intervene claims against him, Defendant Eason argues not only that there is insufficient evidence to support those claims, but also that the undisputed evidence actually proves he was not in a position to intervene during the events that took place in the D-2 dorm or in the events that took place when Stevenson was taken outside of the dorm and was being escorted to the infirmary. (Doc. 233-1, pp. 14-18, 22-24.)

         As to Plaintiff Jackson's in-dorm failure to intervene claim, Defendant Eason argues that it fails because Jackson neglected to exhaust his prison administrative remedies as to the claim. Eason also argues there is no evidence supporting Jackson's in-dorm failure to intervene claim, and furthermore, that the video evidence insulates Eason from liability on this claim because it shows there was insufficient time for him to intervene. (Id. at pp. 19-21.) On Plaintiff Jackson's claims regarding the infirmary escort, Defendant Eason argues there is no evidence of his involvement in or knowledge of the events that took place outside of D-2, nor is there any evidence of injury consistent with Jackson's escort allegations, so both the excessive force and failure to intervene claims in this regard fail. (Id. at pp. 22-24.) Lastly, Defendant Eason asserts qualified immunity with respect to all claims. (Id. at pp. 24-25.)

         In response, Plaintiffs contend the evidence shows Defendant Eason had the opportunity to intervene in Defendant Catanzariti's attacks on them in the dorm. (Doc. 282, pp. 2-3.) Additionally, Plaintiffs aver that evidence “places Eason at the scene outside when multiple officers continued to brutalize nonresistant Jackson and Stevenson.” (Id.) Defendant Eason's contention that he was not in a position to intervene in Stevenson's dorm altercation, Plaintiff Stevenson further argues, “rests largely on an elaborate but materially inaccurate interpretation of the video evidence.” (Id. at pp. 15-16.) As for Plaintiff Jackson, he argues Defendant Eason should have intervened in the force used against him in the dorm because he had “already observed [Catanzariti's] wrath on Stevenson moments earlier.” (Id.) In sum, Plaintiffs contend that a rational jury could find Defendant Eason knew what was happening to both of them in the dorm and outside, that he participated, and that he disregarded opportunities during which he could have reasonably intervened. (Id. at pp. 17-19.) Lastly, Plaintiffs argue that, because “precedent clearly establishe[s] that government officials may not use gratuitous force against a prisoner who has been already subdued, ” Defendant Eason is not entitled to qualified immunity. (Id. at pp. 20-22.) In reply, Defendant Eason contends Plaintiff Stevenson's deposition testimony, in combination with the video evidence, shows he could not have intervened in the dorm altercation between Stevenson and Catanzariti because he was not in the area at that time. (Doc. 294, pp. 6- 7, 15-20.) Defendant Eason also emphasizes that, as a matter of law, he cannot be held liable for not intervening in Catanzariti's single strike against Plaintiff Jackson on the upper range of D-2 (while he was restrained and about to be taken downstairs in the dorm). (Id. at pp. 8-10.) As for the events which took place outside of D-2, Defendant Eason argues there is no credible evidence that Plaintiffs were attacked in the manner asserted and, further, that their claims are belied by the medical evidence of record. (Doc. 294, pp. 2-6, 11-15, 20.) Thus, Defendant Eason concludes, Plaintiffs cannot successfully maintain their claims against him regarding the events outside D-2. (Id.)

         B. Failure to Intervene During Plaintiffs' Dorm Altercations

         On a failure to intervene claim, the “plaintiff has the burden to demonstrate that the defendant was in a position to intervene but failed to do so.” Ledlow v. Givens, 500 Fed.Appx. 910, 914 (11th Cir. 2012) (per curiam) (citing Hadley, 526 F.3d at 1330-31). To meet this burden, the plaintiff must adduce “facts showing the necessity or real opportunity for the defendant-officers to intervene in a fellow officer's unlawful conduct.” Keating, 598 F.3d at 764.

         (1) Plaintiff Stevenson

         To show Defendant Eason was in a position to intervene in Catanzariti's attack on him while he was handcuffed and prone, Plaintiff Stevenson points to several pieces of evidence that indicate Eason was near, if not directly involved in, this event: Officers Hill and Attical's testimony that Defendant Eason was around, or walking away from, the area where Catanzariti repeatedly struck Stevenson; Officer Davis's testimony that Defendant Eason was walking toward the area where Catanzariti repeatedly struck Stevenson prior to what is shown on the handheld video; inmate Satterfield's testimony that he witnessed Defendant Eason restraining Stevenson during the subject attack and that the handheld video does not show that attack that he observed; and Officer Harvey's testimony, along with her handheld video remark, that someone had a hammer when Defendant Eason was on the upper range.

         Against this evidence, Defendant Eason argues that the surveillance videos undisputedly show he was on the lower range when Catanzariti repeatedly struck Stevenson as shown on the handheld video and that, per Eason's characterization of Stevenson's own testimony, this single sequence of strikes is the only in-dorm use of force against him at issue in this case. Moreover, Eason argues that, prior to the handheld video sequence, he assisted with handcuffing Plaintiff Jackson and was thus not near any possible use of force against Plaintiff Stevenson.

         In reviewing the evidence adduced by the parties, the Court finds that undisputed evidence shows Defendant Eason was not in a position to intervene in the strikes Catanzariti made against Plaintiff Stevenson. Plaintiffs admit that Defendant Eason was downstairs at the time Catanzariti is shown on the handheld video striking Plaintiff Stevenson. (Doc. 282-1, pp. 12-17.) Instead, Plaintiffs contend the handheld video does not capture all of Catanzariti's use of force against Stevenson and that Defendant Eason was in a position to intervene in additional force not captured by the handheld video. (Id.; doc. 282, pp. 15-16.)

         Plaintiff Stevenson's best evidence in attempting to create a genuine dispute on this point is testimony by inmate Satterfield.[15] At his deposition, Mr. Satterfield testified that he witnessed Defendant Eason holding down Stevenson while Catanzariti hit him with a hammer and that the handheld video depicts an incident that occurred after what he witnessed. (Doc. 262, pp. 15-18.) However, Mr. Satterfield later qualified this testimony, stating that he was not sure who all was around Stevenson at the time he described and that he could only positively identify Catanzariti and an Officer Green. (Id. at pp. 25, 28-29.) More importantly, during the time leading up to the handheld video sequence, the surveillance video shows Defendant Eason going up the stairs and assisting with Plaintiff Jackson, away from where Plaintiff Stevenson was on the upper ramp. (CAM 8 at 22:07:43-22:07:52; CAM 9 22:07:46-22:09:01; see also doc. 270, p. 25; doc. 259-2, p. 5.) Because the video evidence contradicts Mr. Satterfield's admittedly uncertain testimony about Defendant Eason's whereabouts and actions, the Court finds it insufficient to create a genuine factual dispute. See Scott, 550 U.S. at 378-81 (instructing courts to view the facts as depicted by authentic video evidence when it clearly discredits contrary testimony); Morton v. Kirkwood, 707 F.3d 1276, 1284 (11th Cir. 2013) (“[W]here an accurate video recording completely and clearly contradicts a party's testimony, that testimony becomes incredible.”).

         A close study of the surveillance video definitively shows that Defendant Eason remained in this separate location on the upper ramp, assisting with Plaintiff Jackson, until he returned downstairs fifteen seconds before the attack shown on the handheld video:

• Defendant Eason reaches the top of the stairs. (CAM 8 at 22:07:54.)
• After pausing at the top of the stairs and looking to his right, he steps to the left on the upper ramp and bends down, taking a knee on the ground immediately to the left of the stairs. (Id. at 22:07:54-22:07:58.)
• He remains in this position for fifty-five seconds until standing up. (Id. at 22:07:58-22:08:53.)
• After standing up, he briefly looks down at Plaintiff Jackson and around at other officers in the immediate vicinity. (Id. at 22:08:53-22:08:59.)
• Defendant Eason then steps to the right and makes his way back down the stairs to the bottom level. (Id. at 22:08:59-22:09:10.)
• Finally, he walks right, toward the exit of the dorm and out of screenshot. (Id. at 22:09:10-22:09:18.)

         When asked during his deposition to review video footage from surveillance camera nine, Plaintiff Stevenson identified himself during this time period in a location further down the upper ramp, much to the left of where Defendant Eason was assisting with Plaintiff Jackson near the top of the stairs. (Doc. 259-2, p. 5; see CAM 9 at 22:07:41-22:08:51.) Thus, even assuming Catanzariti also struck Plaintiff Stevenson earlier than what is shown on the handheld video, Defendant Eason was not in a position to intervene in that use of force.

         Furthermore, Plaintiff Stevenson presents no competent testimony that tends to disprove that Defendant Eason assisted with Plaintiff Jackson at this time, much less does he present evidence that would place Eason in a position to intervene in Catanzariti's use of force against Stevenson in D-2. In addition to inmate Satterfield's discredited “identification” of Defendant Eason as an officer who restrained Stevenson while Catanzariti repeatedly struck him, Plaintiffs argue other eyewitness testimony places Eason near Stevenson, but that testimony is either blatantly contradicted by the record or not probative of whether Eason was actually in a position to intervene on Stevenson's behalf during the time in question. For example, Plaintiffs cite Officer Henderson's testimony that Defendant Eason assisted with handcuffing Stevenson, (doc. 266, pp. 5, 14), however Henderson later clarified his testimony, stating he was altogether unsure and that Defendant Eason may have assisted with Jackson's handcuffing, (id. at pp. 6, 25, 28). Moreover, Officer Henderson's testimony is contradicted by the video evidence and the contemporaneous incident report he made, which indicates that Defendant ...


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