Willie Mathews v. James McDonough

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-12515 MARCH 16, 2007
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 99-01117-CV-J-32-MMH

WILLIE MATHEWS,

Plaintiff-Appellant,

versus

JAMES V. CROSBY, JR.,
TIM GIEBEIG,
SGT. HALL,
SGT. CROCKETT,
C.O. YOUNG, in their individual capacities,
et al.,

Defendants-Appellees.

C.O. DOBSON, et al.,

Defendants.

________________________

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

(March 16, 2007)
Before TJOFLAT, BARKETT, and GOODWIN,* Circuit Judges.

BARKETT, Circuit Judge:

Willie Mathews appeals the grant of summary judgment in favor of James

V. Crosby, former warden at Florida State Prison (“FSP”),1 and Tim Giebeig,

former inspector at FSP, on the grounds that they were immune from suit on the

basis of qualified immunity. Mathews also appeals the district court’s order

granting costs and the amount of those costs to Crosby, Giebeig, and other FSP

employees who were voluntarily dismissed before trial.2

While Crosby was the warden of FSP, Mathews was transferred to FSP and

housed on X-wing, where inmates with the most serious disciplinary problems

were assigned. Mathews sued Crosby, Giebeig, and several other FSP employees,

alleging, inter alia, that they violated his Eighth and Fourteenth Amendment rights

by subjecting him to a series of attacks in which excessive and unjustified force

was used, resulting in serious injury, including a broken jaw. Mathews alleged that

prison guards repeatedly beat him, and that Crosby knew about the general

*
Honorable Alfred T. Goodwin, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
1
FSP is a Florida state maximum security facility.
2
Specifically, Mathews appeals the following cost judgments: $11,333.00 to Crosby and
Giebeig; $4,619.40 to James Poston; $6,780.29 to Timothy Thornton, Sgt. Sauls, C.O. Beck, and
Charles Brown; and $10,448.59 to Sgt. Hall, C.O. Riner, C.O. Dent, Sgt. Davidson, C.O. Young,
Sgt. Crockett, and Steve Dobbs.

2
propensity for violence against inmates at FSP – especially by certain corrections

officers who were involved in the beatings of Mathews – but that Crosby was

deliberately indifferent to the risk of abuse and deliberately indifferent to

Mathews’ serious medical needs. Crosby and Giebeig moved for summary

judgment, and the district court granted it, finding they could not be held liable for

their acts as supervisory officials. For the following reasons, we reverse the

district court’s order granting summary judgment to Crosby, affirm the district

court’s order granting summary judgement to Giebeig,3 affirm the district court’s

order granting costs to all defendants, except Crosby and Giebeig, and remand for

further proceedings consistent with this opinion.

STANDARD OF REVIEW

We review de novo a district court’s ruling on summary judgment, applying

the same legal standards as the district court. Skrtich v. Thornton, 280 F.3d 1295,

1299 (11th Cir. 2002). Summary judgment is appropriate only when the evidence

before the court demonstrates that “there is no genuine issue of material fact and

3
Mathews’ brief fails to set forth any arguments as to how, if at all, the district court
erred by granting summary judgment to Giebeig. Mathews names Giebeig in two point
headings, but does not direct any of his argument to Giebeig, and only a peripheral part of his
factual analysis to Giebeig. Accordingly, we find that he has waived his claims on appeal
against Giebeig. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n. 6 (11th Cir.
1989) (stating that passing references to issues are insufficient to raise a claim for appeal, and
such issues are deemed abandoned (citing Tedder v. F.M.C. Corp., 590 F.2d 115, 117 (5th Cir.
1979); Davis v. Hill Engineering, Inc., 549 F.2d 314, 324 (5th Cir. 1977))).

3
that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). The evidence must be viewed in the light most favorable to the non-moving

party. Skrtich, 280 F.3d at 1299 (citing Augusta Iron and Steel Works, Inc. v.

Employers Ins. of Wausau, 835 F.2d 855, 856 (11th Cir. 1988)). That is, courts

must construe the facts and draw all inferences in the light most favorable to the

nonmoving party and “when conflicts arise between the facts evidenced by the

parties, we credit the nonmoving party’s version.” Evans v. Stephens, 407 F.3d

1272, 1278 (11th Cir. 2005) (emphasis omitted). Even though the “‘facts,’ as

accepted at the summary judgment stage of the proceedings, may not be the

‘actual’ facts of the case,” Priester v. City of Riviera Beach, 208 F.3d 919, 925 n.3

(11th Cir. 2000), our analysis for purposes of summary judgment must begin with

a description of the facts in the light most favorable to the plaintiff, Skrtich, 280

F.3d at 1299.

DISCUSSION

As we have often stated, “[q]ualified immunity offers complete protection

for government officials sued in their individual capacities as long as their conduct

violates no clearly established statutory or constitutional rights of which a

reasonable person would have known.” Lee v. Ferraro, 284 F.3d 1188, 1193-94

(11th Cir. 2002) (internal citations and quotation marks omitted). In order to

4
receive the protection of qualified immunity, the government official must first

prove that he was acting within the scope of his discretionary authority when the

allegedly wrongful acts occurred. Kesinger v. Herrington, 381 F.3d 1243, 1248

(11th Cir. 2004) (citing Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir.

2002)).4

Once eligibility for qualified immunity is established, the burden shifts to

the plaintiff to show that qualified immunity is not appropriate. Lee, 284 F.3d at

1194. This step consists of a two-part inquiry, set forth in Saucier v. Katz, 533

U.S. 194 (2001). First, we ask, “do the facts alleged show the government

official’s conduct violated a constitutional right?” Id. at 201. If a constitutional

violation is established, based on the facts in the light most favorable to the

plaintiff, we then must determine whether such conduct would have violated

federal law that was clearly established at the time of the incident. Garrett v.

Athens-Clarke County, 378 F.3d 1274, 1278-79 (11th Cir. 2004) (citing Saucier,

533 U.S. at 201-02).

I. Constitutional Claims

We first address the question of whether Crosby violated Mathews’ Eighth

Amendment right to be free from cruel and unusual punishment. “The

4
There is no question in this case that Crosby was acting within the scope of his
discretionary authority as warden of FSP.

5
Constitution does not mandate comfortable prisons, but neither does it permit

inhumane ones, and it is now settled that the treatment a prisoner receives in prison

and the conditions under which he is confined are subject to scrutiny under the

Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citations and

quotation marks omitted). “In its prohibition of ‘cruel and unusual punishments,’

the Eighth Amendment places restraints on prison officials, who may not, for

example, use excessive physical force against prisoners.” Id. “Being violently

assaulted in prison is simply not part of the penalty that criminal offenders pay for

their offenses against society.” Id. at 833 (citations and quotation marks omitted).

We have held that supervisors can be held liable for subordinates’

constitutional violations on the basis of supervisory liability under 42 U.S.C. §

1983. Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003). Supervisory

liability under § 1983 occurs “when the supervisor personally participates in the

alleged constitutional violation or when there is a causal connection between the

actions of the supervising official and the alleged constitutional deprivation.” Id.

The question before us on appeal is whether there was a causal connection between

Crosby’s actions or inaction and the beatings suffered by Mathews.

A causal connection may be established when: 1) a “history of widespread

abuse” puts the responsible supervisor on notice of the need to correct the alleged

6
deprivation, and he or she fails to do so; 2) a supervisor’s custom or policy results

in deliberate indifference to constitutional rights; or 3) facts support an inference

that the supervisor directed subordinates to act unlawfully or knew that

subordinates would act unlawfully and failed to stop them from doing so. Cottone

v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003).

Therefore, we next examine whether the district court erred in concluding

that insufficient facts were presented to support liability against Crosby through a

causal connection between his actions and the alleged constitutional deprivation

committed by Crosby’s subordinates.

A.

The facts, construed in the light most favorable to Mathews, the nonmoving

party, are as follows. Willie Mathews arrived at FSP on July 4, 1999, along with

four other inmates from Hamilton Correctional Institution following an incident in

which they were accused of assaulting two correctional officers. At FSP, Mathews

was placed in isolation on X-wing. On or about July 4, 5, and 10, Mathews claims

he was beaten by corrections officers because of the incident at Hamilton. He

claims that on or about July 12, 1999, his mother called warden Crosby to inform

him that she had received a letter from an officer working at the prison, stating that

her son was in danger and was being abused by prison guards. The same day,

7
Mathews was visited by Giebeig, the on-site inspector at FSP. Mathews told

Giebeig that he had been repeatedly beaten. Mathews was seen by a doctor, but no

other action was taken to protect Mathews from further beatings or to determine

the validity of the allegations.

Giebeig testified that he “had conversations with [Crosby] every day on

everything going on at FSP” and that therefore the inspector was “almost positive”

that by July 13, 1999, Crosby was aware of Mathews’ allegations that he was being

repeatedly attacked. The inspector later testified that he was “sure somewhere

between the 13th and the . . . 16th” of July 1999, he “spoke with [Crosby] . . .

concerning the Mathews allegations.”

On July 15, 1999, Mathews filed an emergency grievance stating that he was

in fear for his life and was suffering from an untreated broken jaw following

repeated assaults by prison guards on X-wing. Mathews urged authorities to send

someone to remove him from X-wing “before [he is] killed.” By July 16, 1999,

Giebeig was advised by dental staff that Mathews had a fractured jaw. Giebeig

claims he reported this information to the acting warden, A.D. Thornton. FSP had

procedures which required officers to document any use of force against inmates

on an official use of force form. Copies of the use of force forms were forwarded

to the warden. No use of force forms were completed in this case to explain the

8
cause of Mathews’ injury.

On July 17, 1999, another inmate, Frank Valdes, housed on X-wing, was

repeatedly beaten and killed by several officers, including Timothy Thornton, one

of the defendants in this case.5 Only after that incident was Mathews transferred

from FSP and surgery was performed on his fractured jaw. Based on these facts,

we are satisfied that a jury could find that guards at FSP committed a constitutional

violation and thus, we turn to the issue of whether Crosby can be held liable as a

supervisor for that constitutional violation.

B.

Construed in the light most favorable to Mathews, the nonmoving party, the

facts pertaining to whether Crosby was put on notice by a history of widespread

abuse at FSP, or whether he had established customs or policies resulting in

deliberate indifference to a prisoner’s constitutional rights, reflect the following.6

Crosby was preceded as warden of FSP by Ron McAndrew.7 Warden McAndrew

testified that when Crosby succeeded him as FSP warden, the two had several

5
See Valdes v. Crosby, No. 05-13065, ___ F.3d ___ (11th Cir. 2006).
6
We repeat many of the factual allegations set forth in Valdes, No. 05-13065, ___ F.3d
___, as the depositions we rely on in this case were also submitted in Valdes.
7
McAndrew testified that he had over twenty years of experience as an officer, sergeant,
lieutenant, investigatory, deputy warden, and warden of another Florida state facility before
becoming warden of FSP.

9
phone conversations (Crosby declined McAndrew’s invitation to meet in person).

In those conversations, McAndrew specifically warned Crosby about certain

guards, who McAndrew believed were abusive toward inmates and needed to be

kept out of high profile areas, such as X-wing, because “[t]hey were out of hand

and [McAndrew] was afraid they would kill an inmate.” McAndrew also taped a

list of these guards to the center drawer of the warden’s desk.

One of the guards that McAndrew testified he specifically warned Crosby

about was Timothy Thornton, one of the defendant officers in this case accused of

overseeing at least one of the beatings suffered by Mathews. When McAndrew left

FSP in February 1998, Timothy Thornton had recently been one of the guards

involved when a prisoner was extracted from his cell in X-wing and beaten so

severely that the prisoner had to be “airlifted by helicopter to a hospital, where he

remained for nine days and was treated for extensive injuries and spent several

months recuperating.” Skrtich, 280 F.3d at 1300. The inmate’s injuries from that

incident included “(1) left chest trauma with multiple fractures to the left ribs and

left hemopneumothorax, (2) back injury with fractured multiple transverse

processes, (3) right scalp laceration, (4) left shoulder and right knee injury, (5)

abdominal trauma, and (6) post trauma anemia” Id. The inmate’s chest “revealed

the presence of an extensive amount of injuries with multiple abrasions and

10
contusions and several markings of shoes on his back and left chest,” which

markings a doctor found “were probably made from a stomping motion as opposed

to merely holding [the inmate] down,” “consistent with physical abuse.” Id.

(internal quotation marks omitted).8

McAndrew further testified that he moved Thornton off of X-wing and away

from areas where he thought Thornton would have opportunities to abuse inmates.

McAndrew testified that shortly after he became warden he wanted to terminate

Thornton. McAndrew described Thornton as “an extremely dangerous person. . . .

[T]his guy’s a walking hand grenade . . . and the pin’s pulled.” McAndrew

specifically told Crosby “this guy is dangerous. . . . You need to get him off the

payroll.” However, McAndrew only reprimanded Thornton based in part on the

advice of two of his subordinates, who advised McAndrew that Crosby (who at the

time was the state corrections department Director of Security and Institutional

Management), had called them to intervene on Thornton’s behalf to ask that he be

given every possible consideration. Deputy Warden A.D. Thornton, no relation to

Timothy Thornton, similarly testified that both he and McAndrew had concerns

about Timothy Thornton. Notwithstanding McAndrew’s briefing on Thornton,

after Crosby became the FSP warden, Timothy Thornton was promoted to Captain,

8
In Skrtich, we held that the officer defendants were not entitled to qualified immunity
for the alleged beating of Skrtich. Skrtich, 280 F.3d 1295.

11
was permitted to work on X-wing, and was personally selected by Crosby to

receive preferential staff housing. In his deposition, McAndrew summarized

Crosby’s approach to Thornton as “[Crosby was] told he has a potential killer on

his hands and he promotes the guy from lieutenant to captain.”

McAndrew further testified that he asked Crosby to sit with him for a “desk

audit” to review all issues and problems McAndrew was passing on to Crosby. He

wanted to have the “desk audit” with Crosby because FSP “had a notorious

reputation for the beating of inmates” and McAndrew was attempting to address

the problem. Crosby, however, said he did not have time or was not interested in

meeting for the “desk audit.”

A.D. Thornton also testified that Crosby was instrumental in bringing

Montrez Lucas to FSP from another correctional institution where he had worked

with Crosby. Lucas had been disciplined before being brought to FSP by Crosby.

Lucas bragged about how he had been suspended for using excessive force against

an inmate but had not been terminated for it. In addition, shortly after Mathews

was beaten, Lucas was investigated for teaching correctional officer trainees

improper practices in June 1999, prior to the Mathews beating. The Department of

Corrections investigation report stated that Lucas taught the following techniques:

taking “free shots” at inmates while they were handcuffed, using chemical agents

12
on inmates without the required notice and even after inmates became compliant,

reviewing medical reports before completing use-of-force forms to ensure

conformity between the two, instructing trainees about which areas of the human

body could be kicked without leaving bootprints, and bringing inmates to the

medical ward for treatment of minor injuries and then beating the inmates severely

after they had been returned to their cells.

McAndrew stated that while he was warden he hired an “assistant warden

who was aggressively helping fight the excessive use of force in the prison.”

McAndrew specifically hired this assistant warden because he believed the

assistant warden could be trusted and would actively pursue McAndrew’s goals of

reducing inmate abuse. When Crosby became warden, he “transfer[red] her out to

another prison.”

Additionally, evidence was presented that FSP, like most facilities, had

procedures for extracting inmates from their cells when they refused to submit to

being restrained by handcuffs and leg irons. On X-wing, cell extractions consisted

of four or five officers using the physical force necessary to restrain and remove an

inmate from his cell. Cell extractions and any other use of force were to be

documented by prison officials. Copies of the use-of-force forms were forwarded

to the warden.

13
 Prior wardens at FSP required officials to videotape cell extractions.

Warden McAndrew testified that his predecessor at FSP suggested videotaping cell

extractions as a method to cut down on problems during uses of force. McAndrew

testified that FSP had a “notorious reputation” as an institution where guards beat

the inmates, and he continued videotaping because he felt staff were more likely to

act professionally and inmates were less likely to resist the commands of the

guards when they knew they were being videotaped. When Crosby became

warden, however, he discontinued the practice of videotaping cell extractions.

Viewing all facts and inferences in the light most favorable to Mathews, it could be

inferred that Crosby’s action in discontinuing the use of the cameras once he

became warden, despite knowledge that specific FSP officers were suspected of

unwarranted assaults upon inmates, sent a message to corrections officers that the

administration at FSP was going to permit further abuse of inmates.9

Reverend Andrew MacRae, an FSP prison chaplain from 1994 until August

1999, testified about the marked difference in the culture at FSP after Crosby

became the warden. MacRae testified that although he never witnessed an inmate

being physically abused during any warden’s administration, Crosby had a more

9
In a March 25, 1999, meeting of FSP supervisory personnel allegedly attended by
Crosby, there was a discussion about the frequency with which certain officers were being
accused of abusing inmates and what steps might be taken to remedy the situation.

14
“hands-off” approach than prior wardens had, thus permitting the “good old boys”

network of guards to mistreat inmates. MacRae testified that after Crosby became

warden, there were occasions when MacRae was prevented from seeing inmates

following uses of force – which previously had been a time that he would often

offer counsel to those inmates. MacRae was also familiar with the practice of

“touching up” an inmate, wherein an inmate would be subjected to minor injuries

during an apparently justifiable use of force and then, following corroboration of

the injuries by the medical facility, the inmate would be returned to X-wing and

beaten. MacRae testified that he believed these instances increased during

Crosby’s tenure because of Crosby’s hands-off approach.

Evidence was also provided regarding the manner in which Crosby handled

abuse-of-force complaints from inmates. FSP’s procedures relating to prisoners’

abuse-of-force complaints required inmates to report an accusation on a grievance

form that would then be forwarded to the Inspector General’s central office via an

on-site prison inspector’s report. The central office would review the reports and

respond to the on-site prison inspector regarding what further action, if any, should

be taken by the inspector. Copies of the inspector’s report to the central office and

copies of the central office’s response would be forwarded to the warden. The

central office also would receive inquiries about prison conditions from persons

15
outside the prison, such as an inmate’s family or government officials whom an

inmate or his family may have contacted. Copies of the documentation of such

inquiries and directions about what action would be taken were also forwarded to

the warden.

Evidence was submitted that despite having the abuse-of-force complaints

and use-of-force forms forwarded to him, Crosby did not read them. Rather,

Crosby delegated the responsibility of handling the complaints to his secretary,

who had no law enforcement background. In his deposition, McAndrew stated that

he had “reasons” to believe that the secretary was obstructing inmate abuse

investigations. McAndrew told Crosby about his concerns relating to the secretary.

Nonetheless, Crosby delegated the responsibility for reviewing and acting on

inmate complaints to the secretary. Nearly all of the inmate-related

correspondence set forth below regarding alleged abuse contained notations of an

“r” next to Crosby’s initials, which Crosby testified indicated that his secretary

may have handled the matter without him becoming involved or having specific

knowledge of the complaints or the secretary’s responses.

Included in the numerous complaints and inquiries sent to Crosby between

December 1998 and July 1999 were a reference to an inmate’s complaint that he

was “being maliciously harassed and threatened by staff” who “threatened to kill”

16
the inmate and that his efforts to remedy the issue at the institutional level had been

“to no avail”; an inmate’s complaint that officers were falsifying disciplinary

reports against him as a means to keep him in close management confinement; a

complaint from an inmate’s spouse stating that FSP staff had locked her husband in

a stripped cell, were depriving him of food and were “threatening to physically

abuse” him; an inmate’s letter “concerning drug dealing and physical abuse by

staff” which also notes that the Department of Corrections agreed to take steps to

ensure that the inmate’s safety would not be jeopardized because of his testimony

as a witness; an inquiry on behalf of an inmate’s family members who were

“concerned about the inmate’s safety since they allege he was beaten by [a sergeant

and] was taken to the hospital for sustained injuries” and had not had contact with

him since; an inmate who wrote “alleging fear for [his] life and wishing to file a

complaint against four officers” he stated were “trying to kill [him]”; a letter from

another inmate who complained of being “harassed and threatened by both staff

and other inmates” as a result of his status “as a witness for the State Attorney’s

Office”; an inquiry on behalf of an inmate who feared for his safety at FSP because

he had murdered a corrections officer at another Florida correctional institute more

than 15 years earlier; a letter from a death row inmate to the Florida Department of

Law Enforcement, asking it to investigate his claims that supervisory staff at FSP

17
failed to investigate allegations that prison officials assigned to death row

permitted a violent inmate to be out of his cell without restraints so that he could

threaten and intimidate other inmates; letters from several different inmates

claiming that corrections officers had threatened to kill them; and a letter on behalf

of an inmate discussing allegedly criminal acts committed by various guards, and

questioning the need for officers to continue to use force against an inmate once he

had already been restrained by handcuffs and shackles.

Mathews produced evidence from which a jury could find that Crosby

received copies of all the complaints referenced above concerning the abuse of

inmates by guards at FSP, including allegations of abuse of Mathews.

Furthermore, Crosby had been specifically warned by his predecessor about certain

guards whose abuse of inmates was so severe that the prior warden felt one of them

might kill an inmate if not stopped. Crosby, however, did not take steps to

neutralize those guards and on at least one occasion sought to give one of the

guards preferential treatment in housing. Mathews also presented evidence that

Crosby had a reputation for being a “hands-off” warden; regularly delegated

responsibility for his office’s grievance response management to his secretary; and

failed to keep guards with known records of alleged abuse away from assignments

near at-risk inmates, such as those on X-wing.

18
 This evidence, when taken together, is more than adequate to entitle

Mathews to proceed to trial and show that inmate abuse at the hands of guards was

not an isolated occurrence, but rather occurred with sufficient regularity as to

demonstrate a history of widespread abuse at FSP. The facts presented, if found by

a jury, sufficiently support a conclusion that Crosby knew of the widespread abuse

and was “on notice of the need to correct or to stop” abuse by officers. Cottone,

326 F.3d at 1362.

The same evidence, again taken together and in the light most favorable to

Mathews, is sufficient to allow a jury to consider whether Crosby had established

customs and policies that resulted in deliberate indifference to constitutional

violations and whether Crosby failed to take reasonable measures to correct the

alleged deprivations. Id. at 1360; see Smith v. Brenoettsy, 158 F.3d 908, 912-13

(5th Cir. 1998) (dismissing warden’s appeal of denial of summary judgment in

light of factual disputes as to warden’s knowledge of substantial risk and

reasonableness of warden’s response where plaintiff, who was stabbed by a prison

guard, sent letters to warden complaining of verbal abuse and threats by guard, and

warden responded that sheer volume of unsubstantiated complaints made

investigation of every complaint unreasonable).10

10
Mathews also asserts that he was unconstitutionally denied adequate medical care, and
that Crosby is liable for this constitutional violation under his supervisory liability. Mathews

19
 II. Clearly Established Law

Crosby argues that even if Mathews can establish a constitutional violation,

Crosby is protected by qualified immunity because Mathews has failed to show

that it was clearly established at the time of the beatings that a warden could face

liability under § 1983 predicated on his failure to take reasonable steps in the face

of a history of widespread abuse or his adoption of custom or policies which

resulted in deliberate indifference. We disagree. By 1999, it was clearly

established that a warden, the person charged with directing the governance,

discipline, and policy of the prison and enforcing its orders, rules, and regulations

would bear such liability. See, e.g., LaMarca v. Turner, 995 F.2d 1526, 1539 (11th

Cir. 1993) (holding that prison warden could face liability when his failure to take

appropriate measures to improve prisoner safety created a climate that preordained

the ensuing violence); Fundiller v. City of Cooper City, 777 F.2d 1436, 1443 (11th

Cir. 1985) (holding that safety director whose responsibility included disciplining

police officers and setting police department policy could be liable for failing to

take corrective steps in the face of a pattern of excessive force engaged in by

sets forth little, if any, facts relating to a causal connection between Crosby’s actions and the
alleged constitutional deprivation in the denial of medical care. All of Mathews’ allegations
concern the beatings on X-wing and the culture of violence at FSP. Accordingly, Mathews has
failed to allege a claim for § 1983 supervisory relief against Crosby for the denial of medical
care.

20
officers); see also Skrtich, 280 F.3d at 1303 (stating that by 1998 “precedent

clearly established that government officials may not use gratuitous force against a

prisoner who has been already subdued or, as in this case, incapacitated”); Bruce v.

Wade, 537 F.2d 850, 853 (5th Cir. 1976) (a violation of § 1983 is clearly stated by

the unjustified beating of an inmate at the hands of prison officials).

III. Award of Costs

Initially, because we reverse the summary judgment as to Crosby, we vacate

any judgment of costs awarded to him. On remand, Giebeig may move for costs,

consistent with our discussion of indigency below.

As to the other costs awarded, Mathews objects: 1) to any costs, except to

those costs awarded to James Poston, because the magistrate judge improperly

“assisted” the Defendants by requesting an additional filing; and 2) to the failure of

the district court to reduce the amount of costs given that he is indigent.

We reject as meritless Mathews’ first argument that the magistrate judge

improperly “assisted” the Defendants by allowing them to submit an additional

filing to address Mathews’ indigency. Moreover, Mathews failed to file objections

to the magistrate judge’s order within the ten days required by Federal Rule of

Civil Procedure 72(a). Thus, Mathews failed to timely assert this claim.

As to Mathews’ second claim that the costs should be reduced based on his

21
indigence, we review a district court’s decision about whether to award costs to the

prevailing party for abuse of discretion.11 Chapman v. AI Transp., 229 F.3d 1012,

1023-24 (11th Cir. 2000). The Defendants, having obtained from Mathews a

voluntary dismissal with prejudice, are considered prevailing parties. See also

Sequa Corp. v. Cooper, 245 F.3d 1036, 1037-38 (8th Cir. 2001) (noting that

voluntary dismissal without prejudice under Fed. R. Civ. P. 41(a)(1)(i) does not

deprive a district court of authority to award costs) (citing Cantrell v. Int'l Bhd. of

Elec. Workers, Local 2021, 69 F.3d 456, 458 (10th Cir. 1995) (en banc) (holding

that district courts have discretion to award costs when a party dismisses an action,

with or without prejudice)). An abuse of discretion occurs if the trial judge bases

an award or denial upon findings of fact that are clearly erroneous. Mut. Serv. Ins.

Co. v. Frit Indus., Inc., 358 F.3d 1312, 1323 (11th Cir. 2004).

Federal Rule of Civil Procedure 54(d)(1) provides that “[e]xcept when

express provision therefor is made either in a statute of the United States or in

these rules, costs other than attorneys’ fees shall be allowed as of course to the

prevailing party unless the court otherwise directs . . . . ” Fed. R. Civ. P. 54(d)(1).

Under Rule 54(d), there is a strong presumption that the prevailing party will be

11
There is no question that Mathews timely filed objections relating to this claim, as the
magistrate judge’s order was issued on March 10, 2005, and Mathews objected on March 21,
2005, within the ten day limitation. See Fed. R. Civ. P. 6(a) (Saturdays and Sundays are
excluded from computation of time when under eleven days).

22
awarded costs. Arcadian Fertilizer, L.P. v. MPW Indus. Serv., Inc., 249 F.3d 1293,

1296 (11th Cir. 2001). Such costs, however, may not exceed those permitted by 28

U.S.C. § 1920. Maris Distrib. Co. v. Anheuser-Busch, Inc., 302 F.3d 1207, 1225

(11th Cir. 2002). Costs that may be awarded under § 1920 include: “(1) fees of the

clerk and marshal; (2) fees of the court reporter for all or any part of the

stenographic transcript necessarily obtained for use in the case; (3) fees and

disbursements for printing and witnesses; [and] (4) fees for exemplification and

copies of papers necessarily obtained for use in the case.” 28 U.S.C. § 1920.

Here, the magistrate judge’s report and recommendation went through an

extensive analysis of each individual cost under § 1920 and whether Mathews was

entitled to a reduction of costs because of his indigence. As we explained in

Chapman, a district court needs a “sound basis” to overcome the strong

presumption that a prevailing party is entitled to costs. There was none in this

case, and the magistrate judge thoroughly considered each cost of the awards

individually. Accordingly, we affirm the costs to all parties, except to Crosby and

Giebeig as set forth above.

CONCLUSION

Accordingly, the district court’s order granting summary judgment in favor

of Crosby is REVERSED, and in favor of Giebeig is AFFIRMED. The district

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court’s order awarding costs is REVERSED to Crosby and Giebeig and

AFFIRMED to all other parties.

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