          Case: 15-13469    Date Filed: 08/05/2016   Page: 1 of 7


                                                         [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-13469
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 3:13-cv-00607-BJD-MCR



JEAN JOASSIN,

                                                           Plaintiff-Appellant,

                                 versus

LIEUTENANT MURPHY,
SERGEANT RODGERS,
OFFICER COATS,
OFFICER MARTIN,
OFFICER WOODS,

                                                        Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                             (August 5, 2016)
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Before WILLIAM PRYOR, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM:

       Jean Joassin, a Florida state prisoner proceeding pro se, appeals the district

court’s order granting summary judgment in favor of the Defendants, five prison

officers at Suwannee Correctional Institution, on Joassin’s 42 U.S.C. § 1983 claims

for excessive force and deliberate indifference in violation of the Eighth

Amendment. On appeal, Joassin contends the district court abused its discretion

by failing to strike several declarations submitted by the Defendants and

erroneously granted summary judgment where the evidence presented competing

witness testimony. After review, 1 we affirm the denial of the motion to strike but

reverse summary judgment.

       The district court did not abuse its discretion in declining to strike the

declarations and incident report. Each declarant expressly limited his or her

declaration to events that he or she personally observed. The fact that some

declarants did not personally observe every relevant portion of the incident does

not render speculative their declarations regarding events the declarants did

observe. The declarations were based on personal knowledge and are therefore

admissible summary judgment evidence. See Fed. R. Civ. P. 56(c)(4).

       1
         We review for abuse of discretion a district court’s ruling on a motion to strike. See
Evans v. Books-A-Million, 762 F.3d 1288, 1295 (11th Cir. 2014). We review de novo a district
court order granting summary judgment, applying the same legal standards as the district court.
Smith v. Fla. Dep’t of Corr., 713 F.3d 1059, 1063 (11th Cir. 2013).
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      The district court improperly granted summary judgment in favor of the

Defendants. While some details of Joassin’s account of the incident have varied,

the bulk of Joassin’s claims have remained consistent. In both his verified

complaint and his deposition, Joassin stated that the officers slammed him to the

ground three times without provocation while he was restrained, grabbed and

squeezed his genitals, and spit in his face, causing various injuries. Drawing all

reasonable inferences in Joassin’s favor, Joassin’s sworn testimony creates a

genuine issue of material fact as to “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.” Whitley v. Albers, 475 U.S. 312, 320–21, 106 S. Ct.

1078, 1085 (1986).

      In concluding that summary judgment was appropriate, the district court

relied on the declarations of the Defendants and three non-parties: a prison officer,

a prison nurse, and a Florida Department of Corrections investigator. Although

competing affidavits generally create a genuine issue of fact, the district court held

that this case was similar to the Supreme Court’s opinion Scott v. Harris, under

which we should disregard a party’s sworn account of the events if it is “blatantly

contradicted by the record, so that no reasonable jury could believe it.” Scott v.

Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776 (2007). In Scott, a video of the

high-speed chase at issue in the case “so utterly discredited” the plaintiff’s


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description of the events that the Court held no reasonable jury could believe the

plaintiff. Id. at 380, 127 S. Ct. at 1776. We have interpreted Scott as reaffirming

our understanding of the summary judgment standard. See Morton v. Kirkwood,

707 F.3d 1276, 1284 (11th Cir. 2013) (“Thus, where an accurate video recording

completely and clearly contradicts a party’s testimony, that testimony becomes

incredible.”). In Morton, we affirmed a district court’s denial of summary

judgment because the defendant offered not a video recording but “forensic

evidence that does not so utterly discredit [the plaintiff’s] testimony that no

reasonable jury could believe it.” Id.

      Here, Joassin’s self-serving testimony is contradicted by the self-serving

testimony of the prison officials who are either Defendants in this action or

colleagues of the Defendants in this action. In concluding that Joassin’s testimony

was blatantly contradicted by the record, the district court relied upon a

Department of Corrections investigator’s declaration relaying what he saw on a

now-destroyed videotape and a prison nurse’s declaration introducing Joassin’s

medical records from the date at issue. But neither declaration is so inherently

credible as to “blatantly contradict[]” and “utterly discredit[]” Joassin’s testimony.

See Scott, 550 U.S. at 380, 127 S. Ct. at 1776. Additionally, even if we treated the

two declarations as sacrosanct, neither declaration contradicts enough of Joassin’s

testimony to warrant judgment as a matter of law.


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      Though based on the investigator’s observation of a videotape, the

investigator’s declaration is not videotape evidence. Because the videotape was

destroyed, neither the district court nor this Court has the benefit of an irrefutable

videotape that “completely and clearly contradicts” Joassin. See Morton, 707 F.3d

at 1284. Rather, the investigator’s declaration presents just another interested

witness’s recitation of what he claims to have observed. Furthermore, the

investigator’s declaration, if credited, refutes Joassin’s allegations with respect to

only the portion of the incident that took place in or near the shower. The

investigator concedes that he observed no videotape evidence of the portion of the

incident that took place in the vestibule while prison officers led Joassin to the

infirmary. Therefore, even if we discredited Joassin’s testimony to the extent the

investigator testifies otherwise, there would remain a genuine issue of fact as to

whether the prison officers squeezed Joassin’s genitals and twice unnecessarily

slammed Joassin to the ground.

      Likewise, the prison nurse’s declaration and records of Joassin’s medical

treatment do not “completely and clearly contradict[]” Joassin’s testimony. See id.

As a former employee and current contractor of the Department of Corrections, the

nurse is an interested witness. Even if the nurse was disinterested, her declaration

cannot be credited to the extent Joassin’s testimony contradicts it. See Jackson v.

West, 787 F.3d 1345, 1357 n.6 (11th Cir. 2015). The declaration and medical


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records, which the nurse completed, remain contradicted to the extent that Joassin

stated in his deposition that the nurse did not examine him on the date at issue.

This action is therefore no more than a swearing contest between interested

witnesses. See id. (“One cannot ‘refute’ a witness’s statements using another

witness’s statements at summary judgment; such a swearing contest is one for the

jury to resolve.”). Furthermore, the nurse’s declaration and medical records, if

credited, refute Joassin’s allegations only as to the severity or existence of

Joassin’s injuries. The nurse does not claim to have witnessed any portion of the

allegedly excessive use of force. “[T]he 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.” Hudson v. McMillian, 503 U.S. 1, 7, 112 S. Ct.

995, 999 (1992). We may not superimpose onto this inquiry an arbitrary injury

threshold. See Wilkins v. Gaddy, 559 U.S. 34, 39, 130 S. Ct. 1175, 1179 (2010)

(“To conclude . . . that the absence of some arbitrary quantity of injury requires

automatic dismissal of an excessive force claim improperly bypasses this core

inquiry.” (quotation marks omitted)); Saunders v. Duke, 766 F.3d 1262, 1270 (11th

Cir. 2014) (acknowledging Wilkins and extending it to a Fourth Amendment

excessive-force case). Therefore, even if Joassin overstates his alleged injuries, the

Defendants are not entitled to judgment as a matter of law.




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      The summary judgment evidence reveals a genuine dispute regarding

whether the Defendants “maliciously and sadistically” inflicted and permitted one

another to “maliciously and sadistically” inflict force upon Joassin “for the very

purpose of causing harm.” Whitley, 475 U.S. at 320, 106 S. Ct. at 1085.

Therefore, summary judgment was inappropriate.

      AFFIRMED in part, REVERSED and REMANDED in part.




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