1

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

ANTHONY SMITH

Plaintiff,

v. Case No. 1:20-cv-249-AW-GRJ

SERGEANT HOWARD, et al.,

Defendants.

_______________________________/

ORDER ADOPTING REPORT AND RECOMMENDATION

AND GRANTING SUMMARY JUDGMENT

Anthony Smith is a Florida inmate. After he declared a “psychological 

emergency,” prison officials tried to remove him from his cell. Smith contends that 

through that process, the officials used excessive force in violation of the Eighth

Amendment. He further contends that the officials were deliberately indifferent to 

his medical needs, also in violation of the Eighth Amendment. 

Defendants moved for summary judgment, and the magistrate judge issued a 

report and recommendation, concluding I should grant the motion. ECF No. 47. 

Having considered the report and recommendation, and having considered de novo 

Smith’s objections, ECF No. 54, as well as his supplemental response in opposition 

to summary judgment, ECF No. 48, I conclude summary judgment is warranted. 

A.

The report and recommendation sets out the facts in more detail, but the short 

of it is that Smith refused to comply with instructions, and officers pepper-sprayed 

Case 1:20-cv-00249-AW-GRJ Document 57 Filed 06/22/22 Page 1 of 9
2

him before eventually forcibly extracting him from his cell. Smith contends that both 

the pepper spraying and the forceable extraction were unreasonable uses of force. 

As to the pepper spray, I agree with the magistrate judge and fully incorporate that 

portion of the report and recommendation.

1

As to the forceable extraction, I agree with the magistrate judge’s ultimate 

conclusion, although I acknowledge there is a factual dispute as to whether the 

extraction injured Smith. Smith submitted an affidavit in which he claimed he 

suffered “severe pain” in his “eye and ears,” ECF No. 35 at 11, and his verified 

complaint likewise says he suffered ear and eye pain from the cell extraction, ECF 

No. 6 ¶ 18. Finally, his sworn supplement in opposition to summary judgment 

alleges that he still needs medical treatment for blindness and deafness following the 

extraction. ECF No. 48 ¶ 6.

The episode was captured on video, which is part of the summary judgment 

record. The magistrate judge correctly concluded that the videos do not show any 

injuries consistent with Smith’s claims. R&R at 22-24. But neither does the video 

decisively refute those claims. And while the lack of corroborating evidence in the 

video or in the police reports may make Smith’s claims less credible, at this stage I 

must accept Smith’s version of the facts. See Strickland v. Norfolk So. Ry. Co., 692 

1 The same is true for the magistrate judge’s conclusions about the claim for 

deliberate indifference to medical needs.

Case 1:20-cv-00249-AW-GRJ Document 57 Filed 06/22/22 Page 2 of 9
3

F.3d 1151, 1162 (11th Cir. 2012). And therefore, for now, I will accept that the 

extraction caused serious injury.

But this does not preclude summary judgment. “Injury and force . . . are only 

imperfectly correlated, and it is the latter that ultimately counts.” Wilkins v. Gaddy, 

559 U.S. 34, 38 (2010). Of course, “the extent of injury suffered by an inmate is one 

factor that may suggest ‘whether the use of force could plausibly have been thought 

necessary’ in a particular situation.” Hudson v. McMillan, 503 U.S. 1, 7 (1992) 

(quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)). But here, the video shows an 

application of force that no reasonable jury could find excessive—even if Smith 

suffered an injury greater than one might expect from the amount of force applied.

Cf. Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007) (“There is no way that 

Deputy King could have foreseen that a simple push would result in as much injury 

as Cockrell unfortunately suffered. That the severity of the injury could not have 

been reasonably anticipated makes it less likely that King acted ‘maliciously and 

sadistically for the very purpose of causing harm.’” (quoting Whitley, 475 U.S. at 

320-21)).

The undisputed evidence shows that Smith repeatedly refused to submit 

himself to restraints to be led out of the holding cell. See ECF No. 43 (sealed), HH1

at 25:15-45:15. When the cell-extraction team opened the cell door, Smith raised his 

hands, id. at 46:16, and the force that took Smith to the ground was objectively 

Case 1:20-cv-00249-AW-GRJ Document 57 Filed 06/22/22 Page 3 of 9
4

reasonable as a matter of law in light of “the need for application of force[,] . . . the 

relationship between the need and the amount of force used,” and the “extent of the 

threat to the safety of staff” that the extraction team “reasonably perceived . . . on 

the basis of the facts known to them.” Campbell v. Sikes, 169 F.3d 1353, 1375 (11th 

Cir. 1999) (quoting Whitley, 475 U.S. at 321). These factors warrant summary 

judgment even accepting Smith’s account of his injuries. See id. (“Unless it appears 

that the evidence, viewed in the light most favorable to the plaintiff, will support a 

reliable inference of wantonness in the infliction of pain under the standard we have 

described, the case should not go to the jury.” (quoting Whitley)). 

Nothing in Smith’s supplement opposing summary judgment (ECF No. 48)—

filed five days after the report and recommendation issued—changes any of this. 

Normally, I would not consider supplements filed after a report and recommendation 

issued, but here, the filing came within the deadline the court set. See ECF No. 46 at 

3. The supplement was therefore timely, and I have considered it.

The supplement alleges that the injuries were even worse than Smith

previously stated—that he “pas[sed] out from the pain” and “went into seizure.” ECF 

No. 48 ¶ 7. This last claim is clearly false; the video shows Smith consciously 

walking to the decontamination shower immediately after the cell extraction. See 

ECF No. 43 (sealed), FW2 at 00:00-00:15. Cf. Scott v. Harris, 550 U.S. 372, 380 

(2007) (holding that where a video “blatantly contradict[s]” one party’s version of 

Case 1:20-cv-00249-AW-GRJ Document 57 Filed 06/22/22 Page 4 of 9
5

the facts, that “a court should not adopt that version of the facts for purposes of ruling 

on a motion for summary judgment”). Perhaps recognizing that the videos contradict 

his claim, Smith contends the videos were manipulated. ECF No. 48 ¶ 7. But he 

offers no basis for this conclusion. Cf. Fed. R. Civ. P. 56(c)(4) (holding that an 

affidavit counts as summary judgment evidence only if it is “made on personal 

knowledge” and “show[s] that the affiant or declarant is competent to testify on the 

matters stated”).

B.

Smith’s objections to the report and recommendation are unpersuasive. He 

alleges new facts apparently related to his deliberate-indifference claim, including 

specific allegations about how prison staff ignored his declaration of a psychological 

emergency. ECF No. 54 at 3-5. But none of this appeared in his complaint or in 

earlier filings, so I will not consider these allegations here. See Williams v. McNeil, 

557 F.3d 1287, 1292 (11th Cir. 2009) (holding that “a district court has discretion to 

decline to consider a party’s argument when that argument was not first presented 

to the magistrate judge”). I do note, however, that the additional allegations still 

show no injury from the alleged indifference to his psychological emergency, so the 

new allegations would not undermine the conclusion that the PLRA barred Smith’s 

deliberate-indifference claim. See R&R at 14 (citing Mitchell v. Brown & 

Williamson Tobacco Corp., 294 F.3d 1309, 1312-13 (11th Cir. 2002)). 

Case 1:20-cv-00249-AW-GRJ Document 57 Filed 06/22/22 Page 5 of 9
6

The rest of the objection does not deal at all with the excessive-force claim 

alleged in the complaint or addressed in the report and recommendation. Instead, it 

alleges that Smith was pepper-sprayed and beaten twice on October 12, 2018 and

that the complaint was only talking about the second time. ECF No. 54 at 7. He now 

claims that his alleged eye and ear injuries are actually from being pepper sprayed 

and beaten earlier in the day—after he declared a psychological emergency but 

before the extraction addressed above. Id. at 6-8. And he asks for leave to amend his 

complaint to allege this new excessive-force claim. ECF No. 54 at 8.

Smith has not shown good cause to amend his complaint. Although leave to 

amend should be “freely give[n] . . . when justice so requires,” Fed. R. Civ. P. 

15(a)(2), in my discretion I find that Smith has not met this standard. First, the 

request to amend is untimely: even though Smith now claims the “first beating” was 

the real source of the injuries he alleged all along, see ECF No. 54 at 7, he has not 

sought to plead it until after summary judgment was briefed and the magistrate judge 

issued the report and recommendation.2 The timing alone justifies denying leave to 

amend. 

2 Smith filed an additional affidavit styled as a further supplement opposing 

summary judgment, see ECF No. 56 at 1, although in substance it mostly repeats

claims Smith made in his earlier objection. Compare id. at 15-21; with ECF No. 54 

at 6-8. It also renews his request to amend his complaint. See ECF No. 56 at 2. The 

motion is untimely, whether I construe it as an affidavit opposing summary 

judgment, see ECF No. 46 (setting February 21 deadline), or a supplementary 

Case 1:20-cv-00249-AW-GRJ Document 57 Filed 06/22/22 Page 6 of 9
7

Second, and as an independent reason to deny leave to amend, the amendment 

is not in good faith. See Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (“A 

district court need not, however, allow an amendment [] where there has been undue 

delay, bad faith, [or] dilatory motive . . . .”). Smith’s new allegations flatly 

contradict his earlier sworn submissions. While he has repeatedly tied his alleged 

eye and ear injuries to the cell extraction, he now says they actually happened in a 

completely different (and previously undisclosed) beating involving the same 

defendants as initial complaint. See ECF No. 54 at 6-7. The timeline he now alleges 

is also inconsistent with his earlier sworn pleadings. Compare, e.g., FAC ¶ 17 (“The 

Plaintiff, having three (3) times declared a “psychological emergency” was escorted 

through pre-confinement procedures and ultimately placed in his confinement cell 

without incident.” (emphasis added)); with ECF No. 54 at 6 (“Based on the 

plaintiff[’s] [d]emands to declare a psychological emergency, the officers mentioned 

in this claim (defendants) all participated by taking cheap shots and punching him, 

kicking him and, while in handcuff[s] behind his back the captain ordered McGraw 

to use chemical agent on the plaintiff.”); and id. at 7 (“Now the plaintiff Smith was 

taken out of the cages in which the assault and chemical agent as administered, but 

objection to the report and recommendation, see ECF No. 50. But even if I 

considered the affidavit, it would not alter my conclusions here.

Case 1:20-cv-00249-AW-GRJ Document 57 Filed 06/22/22 Page 7 of 9
8

now the plaintiff is being escorted to his assigned confinement cell . . . .”).3In light 

of these inconsistencies, Smith has not shown that the interests of justice favor 

starting all over again with a new complaint. Cf. Van T. Junkins & Assocs. v. U.S. 

Indus., 736 F.2d 656, 657 (11th Cir. 1984) (explaining that “[w]hen a party has given 

clear answers to unambiguous questions which negate the existence of any genuine 

issue of material fact, that party cannot thereafter create such an issue with an 

affidavit that merely contradicts, without explanation, previously given clear 

testimony”).

4

3 Smith’s latest filing suggests again that there was only one incident involving 

pepper spray and physical force—the same incident alleged in his original 

complaint. See ECF No. 56 at 19 (claiming that Smith “has the attack on video” 

(citing ECF No. 43 (sealed)). If Smith indeed refers to the same incident, his new 

allegations are inconsistent with the video. Compare id. at 20 (claiming Smith was 

“still in restraints/handcuffs” when he was pepper sprayed); with ECF No. 43 

(sealed), HH1 at 46:00-46:30 (showing Smith was not handcuffed but refused to 

submit to restraints before the cell extraction). Smith’s inability to provide a 

consistent timeline of events that does not contradict the video evidence in the record 

is further reason to deny his request to amend.

4 Smith again seeks appointed counsel. ECF No. 52 at 7. Appointed counsel 

for civil plaintiffs is warranted “only in exceptional circumstances.” Bass v. Perrin, 

170 F.3d 1312, 1320 (11th Cir. 1999). Here, as in Bass, “[t]he core facts of the 

case . . . are not in [genuine] dispute,” and Smith’s Eighth Amendment claims “are 

straightforward.” Id. (affirming denial of appointed counsel in § 1983 lawsuit). 

Smith’s motion for appointed counsel is denied. To the extent his most recent filing 

raises another request for appointed counsel, see ECF No. 56 at 11, it is denied for 

the same reasons.

Case 1:20-cv-00249-AW-GRJ Document 57 Filed 06/22/22 Page 8 of 9
9

C.

The report and recommendation (ECF No. 47) is adopted and incorporated 

into this order, except to the extent it suggested there was no dispute about the injury.

Defendants’ Motion for Summary Judgment (ECF No. 33) is GRANTED. Plaintiff’s 

motion for appointed counsel (ECF No. 52) is DENIED. The clerk will enter a 

judgment that says, “This case was resolved on summary judgment. Plaintiff’s 

claims are dismissed on the merits, and Plaintiff shall recover nothing.” The clerk 

will then close the file.

SO ORDERED on June 22, 2022.

s/ Allen Winsor

United States District Judge

Case 1:20-cv-00249-AW-GRJ Document 57 Filed 06/22/22 Page 9 of 9