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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

TAREYAN COOKS,

Plaintiff,

vs. CASE NO. 4:02CV423-SPM/AK

G. R. BRANNEN, et al,

Defendants.

 /

REPORT AND RECOMMENDATION

Plaintiff brings this cause of action pursuant to 42 U.S.C. §1983 alleging that

Defendants use excessive force against him when they sprayed him with chemical

agents while he was sitting in his cell. (Doc. 19). Defendants moved to stay these

proceedings pending class certification in a case involving the use of chemical agents

by DOC personnel in Brown v. Crosby, Case No. 2:03CV526-FtM-29 DNF. (Doc. 43). 

This matter was stayed (doc. 45) until February 13, 2006, (doc. 78), after Defendants

filed a Status Report (doc. 71) and responded to a show cause order that class

certification in Brown had been denied and the reasons supporting a stay in this case no

longer existed. (Doc. 77). Defendants have now filed a special report (doc. 81), which

has been construed as a motion for summary judgment (doc. 82) and Plaintiff has

responded. (Docs. 85, 86, 101, 102, 103, 104, 108).

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No. 4:02CV423-SPM/AK

By separate Order entered on this same date, the undersigned is denying

Plaintiff additional discovery and additional time to respond for the reasons set forth in

that order.

I. Third Amended Complaint (doc. 19)

On November 6, 2002, Plaintiff complained to Defendant Carroll that he was not

served bologna with his noon meal. After 30 minutes Plaintiff began kicking on his cell

door to get the dorm sergeant’s attention and Defendants Davis, Brannen, Smith and

Carroll returned and cuffed him and sprayed him with mace in the face and ear after

pretending that they were approaching him to give verbal counsel. Within 30 minutes,

he was taken to the shower where the hot water caused burning and pain in his head,

neck, ears, side of face, waist line, and back. When he returned to his cell, he was

allowed to change his bedding, but he and his cell mate, Brian McCoy declined the offer

to see the nurse. 

Plaintiff claims that use of the chemical agents was excessive force under

constitutional law and prison regulations because he was not posing a danger to himself

or others and was not disrupting prison order; therefore, when they maced him they

were being malicious. He claims the use of mace caused “extensive burning from his

head, neck, ears, backsides, waistline, face.” 

He seeks $10,0000 from each defendant for the constitutional violation 

and $30,000 from each defendant as punitive damages. 

a) Disciplinary Report dated November 12, 2002 (Exhibit 1)

This report is prepared by J. C. Carroll and states:

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No. 4:02CV423-SPM/AK

At approximately 1200 hours, on 11/06/02, while assigned as G-Dormitory

Housing Officer, while feeding the noon meal in Quad Three, I approached

Cell G3-106, which houses Inmate McCoy, Brain DC#T24600 and Inmate

Cook, Tareyan DC# 388887. At t his time I observed Inmate Cook take

his food tray, sit it on the food flap and then state to me, “My cookie isn’t

big enough, I want another one.” I then advised Inmate Cook that his

cookie was the proper portion sent by Food Service. Inmate Cook then

began to yell obscenities and to kick on the cell door. I ordered Inmate

Cook to cease his disruptive behavior, to no avail. It should be noted that

chemical agents were used to gain compliance of a lawful verbal order

given. Inmate Cook is in violation of Disciplinary Charge 9-17, Disorderly

Conduct.

b) Disciplinary Hearing Worksheet dated November 14, 2002

The form shows that Plaintiff refused to appear, that witness statements were

read and considered by the team, but that he was found guilty and received

confinement not to exceed 30 days.

c) Grievances (Exhibits 3 - 6).

Since exhaustion is not at issue, the substance of the grievances and the

responses thereto will not be repeated in this report.

II. Standard of Review

A district court should grant summary judgment when, “after an adequate time for

discovery, a party fails to make a showing sufficient to establish the existence of an

essential element of that party’s case.” Nolen v. Boca Raton Community Hospital, Inc.,

373 F.3d 1151, 1154 (11th Cr. 2004), citing Celotex Corporation v. Catrett, 477 U.S. 317,

322 (1986). All issues of material fact should be resolved in favor of the Plaintiff or nonmoving party before the Court determines the legal question of whether the defendant is

entitled to judgment as a matter of law under that version of the facts. Durruthy v.

Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003); Skrtich v. Thornton, 280 F.3d 1295, 1299

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(11th Cir. 2002). The Plaintiff has the burden to come forward with evidentiary material

demonstrating a genuine issue of fact for trial. Celotex, 477 U.S. at 322-23. Plaintiff

must show more than the existence of a "metaphysical doubt" regarding the material

facts, Matsushita Electric Industrial Co., LTD. v. Zenith Radio Corporation, 475 U.S.

574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986), and a "scintilla" of evidence is

insufficient. There must be such evidence that a jury could reasonably return a verdict

for the party bearing the burden of proof. Anderson v. Liberty Lobby, 477 U.S. 242,

251, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986). “For factual issues to be

considered genuine, they must have a real basis in the record.” Mize v. Jefferson City

Board of Education, 93 F.3d 739, 742 (11th Cir. 1996).

"Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings and by

his own affidavits, or by the 'depositions, answers to interrogatories, and admissions on

file,' designate 'specific facts showing that there is a genuine issue for trial.' " Owen v.

Wille, 117 F.3d 1235, 1236 (11th Cir. 1997), cert. denied 522 U.S. 1126 (1998), quoting

Celotex, 477 U.S. at 324, 106 S. Ct. at 2553 (quoting Fed. R. Civ. P. 56(c), (e)). The

nonmoving party need not produce evidence in a form that would be admissible as Rule

56(e) permits opposition to a summary judgment motion by any of the kinds of

evidentiary materials listed in Rule 56(c). Owen v. Wille, 117 F.3d at 1236; Celotex, 477

U.S. at 324, 106 S. Ct. at 2553.

While a moving party is not required to support his motion for summary judgment

with affidavits, Celotex, supra at 323, the facts stated in uncontradicted affidavits or

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other evidentiary materials must be accepted as true for purposes of summary

judgment. Gauck v. Meleski, 346 F.2d 433, 436 (5th Cir. 1965).

III. Defendants Relevant Rule 56(e) evidence

a) Use of Force investigative report (Exhibit A)

The report states that “Sgt. Smith administered three one [sic] second burst of O.

C. (Oleoresin capsicum) to Inmate Cook’s upper torso area” because he was creating a

disturbance yelling and banging on the cell door and refused all orders given to him by

Sgt. Smith and Captain Brannen.

b) Report of Force Used (Exhibit B)

Signed by the Warden and approved by the Inspector General’s Office, the

conclusion after review of all the papers was that no inappropriate actions were noted. 

In addition, it was noted that Inmate McCoy was present during the use of force and

was subjected to overspray of the chemical, but he was never disorderly and was

escorted with Inmate Cooks to the showers when Cooks ceased his disorderly conduct. 

Both McCoy and Cooks received clean bedding and clothes, but “there were no injuries

to staff or inmate....”

c) Authorization for Use of Force (Exhibit C)

This form shows that Assistant Warden Thomas E. Patterson authorized use of

force to Gary M. Brannen on November 6, 2002, to gain compliance from Inmate Cooks

who was creating a disturbance by yelling and banging on the cell door. The form

indicates that Sgt. Robert Smith used the force.

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d) Incident Report dated November 6, 2002 (Exhibit D)

The details of the incident are the same as in the previous forms. The Officer in

Charge Comment, made by Captain Brannen is:

Force became necessary to bring Inmate Cook into compliance with all

orders given and to cease his disruptive behavior. Several orders were

given to Inmate Cook to cease his actions prior to using chemical agents,

but to no avail. Duty Warden Mr. Tom Patterson was notified prior to

using chemical agents and gave clearance. EAC Duty Officer Johnson

was notified. Inmate Cook received a D.R. for 9-17, Disorderly Conduct. 

Both Staff and Inmates were evaluated by Medical with no injuries noted.

Both Inmates received a shower, change of clothing and cell G3-106 was

decontaminated. Inmate McCoy was not involved bu received overspray

of the agents.

e) Emergency Room Record dated November 6, 2002 (Exhibit E)

Signed by Penne Reed, L. P. N., she states that she observed no injuries on

Plaintiff at 12:55 p.m. following the use of force incident and he stated to her, “I’m

alright.” She instructed him to seek medical if any problems arose later.

IV. Plaintiff’s response

Plaintiff has provided only one piece of evidentiary material, which had already

been submitted with Defendant’s motion. (See Doc. 82, Exhibit B). The Court allowed

Plaintiff to serve written deposition questions upon Inmates Kenneth Walker and Brian

McCoy, but Walker refused to answer any questions and McCoy’s response to all the

questions was “Don’t remember.” (See Doc. 134). 

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1

 Harris v. Garner, 190 F.3d 1279 (11th Cir. 1999) was vacated by 197 F.3d

1059, and the Opinion Reinstated in Part on Rehearing by 216 F.3d 970 (11th Cir.

2000), cert. denied 121 S. Ct. 2214 (2001). The parts of the panel opinion relevant to

this legal issue were reinstated. 

No. 4:02CV423-SPM/AK

V. Analysis

a) No physical injury

Section 1997e(e) provides: "No Federal civil action may be brought by a prisoner

confined in a jail, prison, or other correctional facility, for mental or emotional injury

suffered while in custody without a prior showing of physical injury." 42 U.S.C. §

1997e(e). Despite the wording of § 1997e(e), that ”[n]o Federal civil action may be

brought,” this circuit has established that the statute limits relief, not causes of action. If

there is no physical injury alleged, then mental or emotional monetary damages, as well

as punitive damages, cannot be recovered, but declaratory and injunctive relief may be

available. Harris v. Garner, 216 F.3d 970 (11th Cir. 2000)1, reinstating in part 190 F.3d

1279 (11th Cir. 1999) and Osterback v. Ingram, et al., No. 00-10558, 263 F.3d 169

(11th Cir. 2001) (Table). 215 F.3d at 1230. Plaintiff, however, does not seek

declaratory or injunctive relief. 

The documents submitted by the Defendants show that there were no visible

injuries to Plaintiff immediately following the incident and his statements to the medical

staff were that he was alright. Plaintiff himself admits in the complaint that he declined

the offer to go to medical. Despite the Court’s patient assistance during nearly ten

months of discovery, Plaintiff has come forward with no medical or other evidence to

support his contention that the chemical agents caused extensive burns over a large

part of his body. It is simply not credible that Plaintiff suffered any significant injury, yet

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refused treatment for what he describes as extensive burning and severe pain. Even

more incredible is his assertion for the first time, raised in his brief in response to the

motion for summary judgment, (doc. 101), that he suffered a broken arm the next day

that later required surgery. It is inconceivable that Plaintiff would fail to mention this in

his complaint. In fact, Plaintiff never claimed that the Defendants ever touched him. His

sole assertion of excessive force has been based on the use of chemical agents. 

Further, Brian McCoy was Plaintiff’s cell mate and a direct observant of the

incident itself, as well as the aftermath, including his own experience having been

sprayed with the substance himself, yet he says he does not remember anything about

the incident. (See Doc. 134). 

Defendants were directed by the Court to produce all medical records pertaining

to this incident (doc. 129) and Plaintiff was provided these records on August 17, 2007,

(doc. 131), but has not come forward with any evidence to show that he suffered the

injuries described in the complaint. Thus, the undersigned finds that no injury resulted

from the Defendants’ actions on the date in question.

b) Excessive force

Under the Eighth Amendment force is deemed legitimate in a prison setting as

long as it is used “in a good faith effort to maintain or restore discipline [and not]

maliciously and sadistically to cause harm.” Whitley v. Albers, 475 U.S. 312, 320-21

(1986), quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir. 1973). A variety of

factors are considered in determining whether the force was applied maliciously or

sadistically, including the need for force, the relationship between that need and the

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amount of force used, the threat reasonably perceived by the prison officials applying it,

and any efforts made to temper the severity of the force used. Hudson v. McMillian,

503 U.S. 1, 7-8 (1992). 

 A de minimis use of force, as evidenced by no injury, is one of the factors for

consideration and cannot support a claim of excessive use of force. Hudson, at 7. 

In the present case, even Plaintiff admits to banging on the cell door. While his version

places him quietly sitting on his bunk when the force was applied, the undersigned is of

the opinion that even under Plaintiff’s version of the facts there was no excessive force

used because there was no injury resulting from the spray.

In light of the foregoing, it is respectfully RECOMMENDED that Defendants’

Motion for Summary Judgment (doc.82) be GRANTED, and this cause be DISMISSED

for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. §

1915(e)(2), and that the order adopting this report and recommendation direct the clerk

of court to note on the docket that this cause was dismissed pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii) and constitutes a “strike” within the meaning of 28 U.S.C. §1915(g).

IN CHAMBERS at Gainesville, Florida, this 5th day of September, 2007.

s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

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NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party’s objections within 10 days after

being served with a copy thereof. Failure to file specific objections limits the scope of

review of proposed factual findings and recommendations.

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