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UNITED STATES DISTRICT COURT 

MIDDLE DISTRICT OF PENNSYLVANIA 

JAMAR ROYAL, 

 Plaintiff 

 

 v. 

 

C.O. BOONE, 

 Defendant 

) CIVIL ACTION NO. 4:19-CV-1993 

) 

) (MARIANI, D.J.) 

) 

) (ARBUCKLE, M.J.) 

) 

) 

REPORT AND RECOMMENDATION 

I. INTRODUCTION 

State inmate Jamar Royal (“Plaintiff”) initiated this pro se civil rights action 

alleging that a corrections officer at the State Correctional Facility at Rockview 

(“SCI Rockview”) applied excessive force when Plaintiff was placed on the ground 

after resisting a pat search. Currently before the Court is Defendant’s second 

motion requesting that he be granted summary judgment pursuant to Rule 56 of the 

Federal Rules of Civil Procedure. This motion was assigned to the undersigned 

Magistrate Judge to prepare a report and recommendation. 

We have reviewed the motion, statement of material facts and response, the 

parties’ briefs, and the relevant evidence (including videos of the alleged use of 

force). For the reasons explained herein, it will be RECOMMENDED that 

Defendant’s second motion for summary judgment (Doc. 45) be GRANTED, and 

that this case be CLOSED. 

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II. BACKGROUND & PROCEDURAL HISTORY 

On October 14, 2017, Plaintiff was incarcerated at SCI Rockview, and was 

housed in cell 1030 of the restricted housing unit (“RHU”). (Doc. 46, ¶¶ 1, 2). At 

approximately 11:07 a.m. Plaintiff tied his bedsheet to the wall and lit it on fire. 

(Doc. 46, ¶ 3).1

Through the closed cell door, Defendant put Plaintiff in handcuffs, ordered 

Plaintiff to go to the back of his cell, and used a fire extinguisher to put out the fire. 

(Doc. 46, ¶¶ 4-5).2

 Once the fire was extinguished, Defendant opened the cell door 

and four corrections officers escorted Plaintiff to RHU cell 1048. (Doc. 46, ¶¶ 6-8). 

When they arrived at cell 1048, Plaintiff took a step into the cell. (Doc. 46, 

¶ 8). Officers guided him backwards, out of the cell, for a pat search of his person. 

1

 Plaintiff’s motivations for starting the fire are not material to the use of 

force that followed. We discuss it here to provide context for the events that 

transpired. 

Plaintiff alleges that Defendant Boone brought breakfast to the RHU 

between 6:00 a.m. and 7:17 a.m. each morning. (Doc. 59, ¶¶ 3, 5). Plaintiff alleges 

that Defendant Boone brought lunch to the RHU between 10:00 a.m. and 11:00 

a.m. each day. (Doc. 59 ¶¶ 4, 5). Plaintiff, apparently deaf in one ear, did not hear 

Defendant Boone announce the trays, and therefore did not receive a tray. (Doc. 

59, ¶ 5). Plaintiff alleges that he begged Defendant Boone to give him his food or 

trays. (Doc. 59, ¶ 6). 

Plaintiff alleges that, because he missed two meals, he told two non-party 

staff members that he was going to kill himself. (Doc. 59, ¶ 8). Those staff 

members ignored Plaintiff. (Doc. 59, ¶ 9). Then, Plaintiff lit his bedsheets on fire, 

intent on burning himself alive because he had been deprived of all food that day. 

(Doc. 59, ¶ 10).

2

 Plaintiff suggests that Sargent Stabley sprayed the fire extinguisher. Even 

assuming this dispute is genuine, it is not material to the resolution of Plaintiff’s 

excessive force claim. 

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(Doc. 46, ¶ 8). Defendant conducted the pat search. (Doc. 46, ¶ 9). When 

Defendant reached Plaintiff’s lower back, Plaintiff began to resist the search by 

pulling away from the officers. (Doc. 46, ¶ 10). Defendant and two other 

corrections officers put Plaintiff on the ground. (Doc. 46, ¶ 11). 

Plaintiff alleges that, while he was on the ground, unresisting and in 

handcuffs, Defendant “struck” Plaintiff in the face “with a closed fist.” (Doc. 1-1, 

p. 5, ¶ 14). Defendant argues, relying on video footage of the incident, that there is 

no evidence Plaintiff was “punched” in the face. (Doc. 46, ¶¶ 16-17). He suggests 

that this video illustrates that no member of the correctional staff moved an arm 

backwards in a striking motion with a closed fist, as Plaintiff alleges. (Doc. 46, 

¶ 17). 

Following the incident, Plaintiff was escorted to medical for assessment and 

treatment. (Doc. 46, ¶ 20). Photographs were taken of Plaintiff’s person. (Doc. 46, 

¶ 25). Medical staff noted no injuries. (Doc. 46, ¶ 24). 

On September 23, 2019, the Centre County Court of Common Pleas 

received Plaintiff’s complaint. (Doc. 1-1, p. 3). On October 3, 2019, the Centre 

County Court of Common Pleas received Plaintiff’s civil cover sheet. (Doc. 1-1, p. 

2). On October 10, 2019, Plaintiff was granted leave to proceed in forma pauperis. 

(Doc. 6, p. 1). On October 23, 2019, Defendant was served. Id.

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On November 20, 2019, Defendant removed Plaintiff’s state court action to 

federal court. (Doc. 1). 

Under the heading “Legal Claims” in his complaint, Plaintiff wrote: 

20. The defendant above is guilty of excessive force. 

21. The defendant is being sued in his individual and official 

capacities at all times mentioned in this complaint while 

purporting to be acting under the color of state law. 

22. Defendant use excessive force when strikeing [sic] Mr. Royal to 

the right side of his face with a close fist cuseing [sic] Mr. 

Royal right side of face to swell. 

23. Defendant did inflix [sic] cruel and unusual punishment when 

strikeing [sic] Mr. Royal on the right side of his face while 

laying on the floor of Mr. Royal hands cuff behind his back 

makeing [sic] Mr. Royal no type of threat. Vilateing [sic] Mr. 

Royal 8th Amendment right to be free of unusual and crule [sic] 

punishment. 

(Doc. 1-1, ¶¶ 20-23). 

 As relief, Plaintiff requests money damages. (Doc. 1-1, p. 6). 

After receiving extensions of time, on January 21, 2020, Defendant filed an 

answer. (Doc. 14). Then, on May 18, 2020, Defendant filed his first motion for 

summary judgment, which was limited to the issue of PLRA exhaustion. (Doc. 17). 

Along with that motion, Defendant filed a brief in support, statement of material 

facts, and exhibits. (Docs. 18, 19, and 19-1). On the date this motion was filed, 

Plaintiff was advised that he needed to file a brief in opposition and response to 

Defendant’s statement of material facts on or before June 8, 2020. (Doc. 20). He 

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was also advised that if he failed to respond, his case may be dismissed. After 

being granted an extension of time, on June 4, 2020, Plaintiff filed a brief in 

opposition and exhibits. (Doc. 23 et seq.). 

On September 9, 2020, the undersigned Magistrate Judge recommended that 

summary judgment be granted. (Doc. 31). In reaching that recommendation, 

Defendant’s statement of facts was deemed admitted under L.R. 56.1 because 

Plaintiff did not provide a responsive statement of material facts. Id. On April 20, 

2022, United States District Judge Robert D. Mariani declined to adopt the 

recommendation. (Doc. 37). In his order, Judge Mariani reasoned that, given 

Plaintiff’s alleged mental functioning level, and the fact that Plaintiff attempted to 

set out facts in his brief in opposition, Defendant’s statement of material facts 

should not be deemed admitted. Id. Reviewing the facts set out in Plaintiff’s brief, 

Judge Mariani found that there was a genuine issue of material fact as to whether 

Plaintiff exhausted his administrative remedies, and summary judgment was 

denied. Id. 

On December 23, 2022, Defendant filed a second motion for summary 

judgment to address the merits of Plaintiff’s Eighth Amendment claim. (Doc. 45). 

Along with that motion, Defendant filed a statement of facts, exhibits, and brief in 

support. (Docs. 46 et seq., 47, and 48). The exhibits include a flash drive 

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containing videos of the use of force. (Doc. 48). Plaintiff was afforded multiple 

extensions of time to respond. (Docs. 51, 54, and 56). 

In one request for additional time, filed on April 14, 2023, Plaintiff reported 

he had not viewed Defendant’s videos. (Doc. 55). A telephone conference was 

scheduled to discuss this issue. (Doc. 57). Before that conference took place, 

Plaintiff filed his brief in opposition, response to Defendant’s statement of facts, 

and exhibits. (Docs. 58, and 59 et seq.). During the telephone conference, the 

undersigned confirmed that Plaintiff viewed two out of three videos. Following the 

telephone conference, Defense Counsel collaborated with staff at SCI Houtzdale to 

make arrangements for Plaintiff to view the third video. (Doc. 61). Plaintiff was 

directed to notify the Court whether he needed to supplement his brief in 

opposition or response to Defendant’s statement of material facts after viewing that 

video. Id. On June 5, 2023, Plaintiff sent a letter confirming that he was able to 

view the third video, and submitted a supplement. (Docs. 62, 63). On June 20, 

2023, Defendant filed a reply. (Doc. 65). 

Defendant’s second motion for summary judgment has been fully briefed, 

and is ready to decide. 

III. LEGAL STANDARDS 

It is helpful to restate the familiar legal standard for reviewing motions for 

summary judgment. We will also discuss the legal standards relevant to Plaintiff’s 

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Eighth Amendment excessive force claim and Defendant’s qualified immunity 

argument. 

A. MOTIONS FOR SUMMARY JUDGMENT UNDER RULE 56 

Defendant requests summary judgment under Rule 56 of the Federal Rules 

of Civil Procedure. Pursuant to this rule: 

A party may move for summary judgment, identifying each claim or 

defense—or the part of each claim or defense—on which summary 

judgment is sought. The court shall grant summary judgment if the 

movant shows that there is no genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of law. The court 

should state on the record the reasons for granting or denying the 

motion.3

 

Through summary adjudication, a court is empowered to dispose of those 

claims that do not present “a genuine dispute as to any material fact,”4

 and for 

which trial would be “an empty and unnecessary formality.”5

 A fact is material if 

proof of its existence or nonexistence might affect the outcome of the suit under 

the applicable substantive law.6

 For a dispute to be genuine, “all that is required is 

that sufficient evidence supporting the claimed factual dispute be shown to require 

a jury or judge to resolve the parties’ differing versions of the truth at trial.”7

 

3

 Fed. R. Civ. P. 56(a). 

4 Id. 

5 Univac Dental Co. v. Dentsply Int’l, Inc., 702 F.Supp.2d 465, 468 (M.D. 

Pa. 2010). 

6 Haybarger v. Laurence Cnty. Adult Prob. & Parole, 667 F.3d 408, 412 (3d 

Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). 

7 Id. (quoting Anderson, 477 U.S. at 248-49). 

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The moving party has the initial burden of identifying evidence that it 

believes shows an absence of a genuine issue of material fact.8 Once the moving 

party has shown that there is an absence of evidence to support the non-moving 

party’s claims, “the non-moving party must rebut the motion with facts in the 

record and cannot rest solely on assertions made in the pleadings, legal 

memoranda, or oral argument.”9 If the non-moving party “fails to make a showing 

sufficient to establish the existence of an element essential to that party’s case, and 

on which that party will bear the burden at trial,” summary judgment is 

appropriate.10 Summary judgment is also appropriate if the non-moving party 

provides merely colorable, conclusory, or speculative evidence.11 There must be 

more than a scintilla of evidence supporting the non-moving party and more than 

some metaphysical doubt as to the material facts.12 In making this determination, 

the Court must “consider all evidence in the light most favorable to the party 

opposing the motion.”13 

8 Conoshenti v. Pub. Serv. Electric & Gas Co., 364 F.3d 135, 145-46 (3d 

Cir. 2004). 

9 Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); 

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). 

10 Celotex, 477 U.S. at 322. 

11 Anderson, 477 U.S. at 249. 

12 Id. at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 

U.S. 574, 586 (1986). 

13 A.W. v. Jersey City Pub. Sch., 486 F.3d 791, 794 (3d Cir. 2007). 

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A party who seeks to resist a summary judgment motion by citing to 

disputed material issues of fact must show by competent evidence that there is a 

genuine dispute of material fact. “[O]nly evidence which is admissible at trial may 

be considered in ruling on a motion for summary judgment.”14 Similarly, it is wellsettled that: “[o]ne cannot create an issue of fact merely by . . . denying averments . 

. . without producing any supporting evidence of the denials.”15 Thus, “[w]hen a 

motion for summary judgment is made and supported . . ., an adverse party may 

not rest upon mere allegations or denial.”16 “[A] mere denial is insufficient to raise 

a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the 

opposing affidavit is also not sufficient.”17 Furthermore, an adverse party “cannot 

expect to rely merely upon bare assertions, conclusory allegations or 

suspicions.”18 

Finally, when ruling on a motion for summary judgment, it is not the 

province of the court to weigh evidence or assess credibility. The court must view 

14 Countryside Oil Co. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J. 

1995). 

15 Thimons v. PNC Bank, N.A., 254 F.App’x 896, 899 (3d Cir. 

2007) (citation omitted). 

16 Fireman’s Ins. Co. of Newark N.J. v. DuFresne, 676 F.2d 965, 968 (3d 

Cir. 1982); see Sunshine Books, Ltd. v. Temple Univ., 697 F.2d 90, 96 (3d Cir. 

1982). 

17 Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969). 

18 Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985) (citing Ness v. Marshall, 

660 F.2d 517, 519 (3d Cir. 1981)). 

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the evidence presented in the light most favorable to the non-moving party,19 and 

draw all reasonable inferences in the light most favorable to the non-moving 

party.20 Where the non-moving party’s evidence contradicts the movant’s, then the 

non-movant’s must be taken as true.21 Additionally, the court is not to decide 

whether the evidence unquestionably favors one side or the other, or to make 

credibility determinations, but instead must decide whether a fair-minded jury 

could return a verdict for the non-movant on the evidence presented.22 In reaching 

this determination, the Third Circuit has instructed that: 

To raise a genuine issue of material fact . . . the opponent need not 

match, item for item, each piece of evidence proffered by the movant. 

In practical terms, if the opponent has exceeded the “mere scintilla” 

threshold and has offered a genuine issue of material fact, then the 

court cannot credit the movant’s version of events against the 

opponent, even if the quantity of the movant’s evidence far outweighs 

that of its opponent. It thus remains the province of the fact finder to 

ascertain the believability and weight of the evidence.23

In contrast, “[w]here the record taken as a whole could not lead a rational trier of 

fact to find for the non-moving party, there is no genuine issue for trial.”24 

19 Anderson, 477 U.S. at 255. 

20 Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d 

Cir. 1992).

21 Id. 22 Anderson, 477 U.S. at 252; see also Big Apple BMW, 974 F.2d at 1363.

23 Id.

24 Matsushita Elec. Indus. Co., 475 U.S. at 587. 

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B. CLAIMS UNDER 42 U.S.C. § 1983 

Plaintiff’s Eighth Amendment claim is brought under 42 U.S.C. § 1983. 

“Section 1983 imposes civil liability upon any person who, acting under the color 

of state law, deprives another individual of any rights, privileges, or immunities 

secured by the Constitution or laws of the United States.”25 “It is well settled that 

§ 1983 does not confer any substantive rights, but merely ‘provides a method for 

vindicating federal rights elsewhere conferred.’”26 To establish a claim under 

§ 1983, Plaintiff must establish a deprivation of a federally protected right and that 

this deprivation was committed by a person acting under color of state law.27 

C. EIGHTH AMENDMENT: CORRECTIONAL OFFICER’S USE OF FORCE 

The Eighth Amendment prohibits infliction of “cruel and unusual 

punishment.”28 The Eighth Amendment serves as the primary source of substantive 

protection where an inmate alleges that a prison official’s use of force was 

excessive.29 It does not, however, protect inmates against an objectively de minimis 

25 Shuman ex rel. v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir. 

2005).

26 Williams v. Pennsylvania Hum. Rels. Comm'n, 870 F.3d 294, 297 (3d Cir. 

2017) (quoting Hildebrand v. Allegheny Ctny., 757 F.3d 99, 104 (3d Cir. 2014)).

27 Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005). 

28 U.S. Const. amend VIII. 

29 Brooks v. Kyler, 204 F. 3d 102, 106 (3d Cir. 2000) (citing Whitley v. 

Albers, 475 U.S. 312, 327 (1986)).

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use of force.30 The pivotal inquiry in reviewing an inmate’s claim of excessive 

force is “whether the force was applied in a good-faith effort to maintain or restore 

discipline, or maliciously and sadistically to cause harm.”31 

In making this determination courts examine the following factors: 

(1) “the need for the application of force”; (2) “the relationship 

between the need and the amount of force that was used”; (3) “the 

extent of injury inflicted”; (4) “the extent of the threat to the safety of 

staff and inmates, as reasonably perceived by responsible officials on 

the basis of the facts known to them”; and (5) “any efforts made to 

temper the severity of a forceful response.”32

D. QUALIFIED IMMUNITY

Qualified immunity protects public officials who have violated a plaintiff’s 

rights if that plaintiff’s rights were not clearly established when the violation 

occurred.33 “Qualified immunity balances two important interests—the need to 

hold public officials accountable when they exercise power irresponsibly and the 

need to shield officials from harassment, distraction, and liability when they 

perform their duties reasonably.”34 

30 Hudson v. McMillan, 503 U.S. 1, 9-10 (1992) (“The Eighth Amendment’s 

prohibition of ‘cruel and unusual’ punishments necessarily excludes from 

constitutional recognition de minimis uses of physical force provided that the use 

of force is not of a sort ‘repugnant to the conscience of mankind.’”). 

31 Whitley, 475 U.S. at 320-322. 

32 Brooks, 204 F.3d at 106 (quoting Whitley, 475 U.S. at 322). 

33 Pearson v. Callahan, 555 U.S. 223, 244-45 (2009). 

34 Id. at 231. 

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The availability of qualified immunity turns on two separate but related 

issues: (1) whether a federal right has been violated; and (2) whether that right was 

“clearly established” at the time of the violation.35 Qualified immunity applies 

unless an official’s conduct violated a clearly established federal right. When 

conducting this two-part inquiry, a court may “exercise [its] sound discretion in 

deciding which of the two prongs of the qualified immunity analysis should be 

addressed first in light of the circumstances of the particular case at hand.”36 

IV. DISCUSSION 

In this case Defendant argues he is entitled to qualified immunity because 

video evidence of the alleged use of force blatantly contradicts Plaintiff’s claim 

that Defendant’s use of force violated the Eighth Amendment. In his reply, 

Defendant also argues that Plaintiff’s statement of material facts should be 

stricken, Defendant’s statement of material facts should be deemed admitted 

pursuant to Local Rule 56.1, and that Plaintiff should not be permitted to assert 

new claims in his brief in opposition. 

We will begin our analysis by addressing the threshold issues of whether 

Plaintiff’s statement of material facts should be stricken, whether Defendant’s 

statement of material facts should be deemed admitted, and by defining the scope 

35 Tolan v. Cotton, 572 U.S. 650, 656 (2014).

36 Pearson, 555 U.S. at 236. 

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of Plaintiff’s excessive force claim. Then, we will address Defendant’s qualified 

immunity argument. 

A. THE COURT SHOULD DISREGARD THE NON-RESPONSIVE PORTIONS 

OF PLAINTIFF’S STATEMENT OF MATERIAL FACTS AND SHOULD 

DEEM THE UNDISPUTED PORTIONS OF DEFENDANT’S STATEMENT OF 

MATERIAL FACTS ADMITTED

In his reply, Defendant observed that “Plaintiff filed an independent 

statement of material facts that are wholly separate and apart from Defendant’s 

Statement of Material Facts.” (Doc. 65, p. 5). He argues that, because Plaintiff’s 

statement is not responsive, the entire statement should be struck and should not be 

considered by the Court when it is deciding Defendant’s motion for summary 

judgment. 

Under Local Rule 56.1, a party opposing summary judgment is required to 

file “a separate, short and concise statement of the material facts, responding to the 

numbered paragraphs” in the movant’s statement of material facts. This rule “does 

not permit a non-moving party to file an additional statement of material facts that 

does not respond to the movant’s statement.”37 A court may strike, or disregard, 

37 Romero v. Tobyhanna Twp., 3:19-CV-1038, 2021 WL 4037837, at *2 

(M.D. Pa. Sept. 3, 2021) (citing Farmer v. Decker, 353 F. Supp. 3d 342, 347 n.1 

(M.D. Pa. 2018); Barber v. Subway, 131 F. Supp. 3d 321, 322 n.1 (M.D. Pa. 2015); 

and Rau v. Allstate Fire & Cas. Ins. Co., 793 F. App’x 84, 87 (3d Cir. 2019)). 

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non-responsive portions of a non-movant’s statement of material facts.38 In his 

reply brief, Defendant requests that we do so in this case. 

Defendant’s request is appropriate. We have not considered the unsupported 

and non-responsive allegations set forth in Plaintiff’s statement of material facts. 

Defendant also urges the Court to deem his statement of material facts 

admitted. He is correct that under Local Rule 56.1: 

A failure to file a counter-statement equates to an admission of all the 

facts set forth in the movant's statement. This Local Rule serves 

several purposes. First, it is designed to aid the Court in its 

determination of whether any genuine issue of material fact is in 

dispute. Second, it affixes the burden imposed by Federal Rule of 

Civil Procedure 56(e), as recognized in Celotex Corp. v. Catrett, on 

the nonmoving party ‘to go beyond the pleadings and by her own 

affidavits, or by the depositions, answers to interrogatories, and 

admissions on file, designated specific facts showing that there is a 

genuine issue for trial.’ 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 

265 (1986) (internal quotations omitted) (emphasis added).39

Therefore, to the extent the averments set out in Defendant’s statement of facts are 

material, and are not contradicted by other evidence in the record, these facts are 

deemed admitted. We note, however, that although “[t]he court need consider only 

38 See e.g. Bautista v. Carey, No. 1:21-CV-00126, 2023 WL 157991, at *5 

n.2 (M.D. Pa. Jan. 11, 2023) (disregarding a pro se prisoner’s non-responsive 

statement statements in his response to Defendant’s statement of material facts, 

and deeming Defendant’s statement of material facts admitted). 

39 Bautista, 2023 WL 157991, at *5 (emphasis in original). 

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the cited materials, . . . it may consider other materials in the record” and has done 

so in this case.40 

B. PLAINTIFF CANNOT AMEND HIS COMPLAINT IN HIS BRIEF, BUT WE 

WILL LIBERALLY CONSTRUE HIS EIGHTH AMENDMENT EXCESSIVE 

FORCE CLAIM

In his eight-page complaint, Plaintiff asserts one Eighth Amendment 

excessive force claim against one Defendant. To support that claim, Plaintiff 

alleges that Defendant “used excessive force when striking Mr. Royal to the right 

side of his face with a close fist causing Mr. Royal right side of face to swell.” 

(Doc. 1-1, ¶ 22). In the materials Plaintiff submitted to oppose Defendant’s motion 

for summary judgment, Plaintiff appears to broaden the scope of his claim, 

alleging that the closed-fisted “strike” he complains of was characterized by 

Defendant in his DC-121 as “redirecting” Plaintiff’s face. In the DC-121 report at 

issue, Defendant wrote: 

During the pat search the inmate began to resist and was placed on the 

ground. The inmate attempted to roll and clinched his mouth as if he 

was going to spit, and this officer redirected the inmate[’]s face away 

from staff. Positive control of the inmate was maintained and this 

officer retrieved a spit hood. The inmate attempted to resist and bite 

this officer while this officer placed the spit hood on the inmate. 

(Doc. 46-2, p. 2). Reading Plaintiff’s materials we are persuaded that this “strike” 

and “redirection” both refer to the same application of force in different terms. 

Plaintiff’s statements about the alleged “redirection,” are therefore not a new claim 

40 Fed. R. Civ. P. 56(c)(3) (emphasis added). 

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and fall within the scope of his complaint. We also acknowledge that there appears 

to be some confusion in the record as to whether the force was applied to the left or 

right side of Plaintiff’s face. 41 We will liberally construe the complaint as alleging 

force applied to the face, left or right. 

 In his brief, Plaintiff also suggests that he is asserting Eighth Amendment 

conditions of confinement claims related to the denial of two meals (breakfast and 

lunch) on October 14, 2017. (Doc. 58, p. 4). Although Plaintiff discusses the denial 

of food, his complaint does not put Defendant on notice that he intended to assert 

an Eighth Amendment claim related to the denial of food. A litigant cannot amend 

a complaint or add new claims in a brief, as Plaintiff attempts to do here.42 We will 

not consider Plaintiff’s arguments that Defendant violated his Eighth Amendment 

rights by denying him two meals. 

41 In the video, after refusing medical care two times, Plaintiff points to his 

left cheekbone and announced that there was a welt caused by Defendant. 

(Handheld Camera, 48:35-48:56).

42 Commonwealth of Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 

F.2d 173, 181 (3d Cir. 1988) (quoting Car Carriers Inc. v. Ford Motor Co., 745 

F.2d 1101, 1107 (7th Cir. 1984)). 

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C. SUMMARY OF THE RELEVANT EVIDENCE

The summary judgment record includes three videos of the relevant use of 

force and its aftermath; two videos without audio from stationary surveillance 

cameras, and one handheld camera video with audio.43 

The stationary surveillance videos commence with Plaintiff being walked 

down a corridor by four corrections officers, identified as Stabley, LoDuca, 

Novosal, and Defendant. (DIVAR 365, 00:08-00:12); (DIVAR 364, 00:04-00:05); 

(Doc. 46-6, pp. 46-6, pp. 21-22) (identifying that LoDuca and Novosal escorted 

Plaintiff to cell 1048, Defendant conducted the pat search, and Stabley operated the 

hand camera). Plaintiff’s hands are cuffed behind his back. (DIVAR 365, 00:08-

00:12); (DIVAR 364, 00:04-00:05). Plaintiff took one or two steps into a cell. 

(DIVAR 365, 00:14-00:23); (DIVAR 364, 00:06-00:16). The officers then guided 

Plaintiff backwards, out of the cell. Id. 

Once Plaintiff was outside the cell, Defendant began a pat search. (DIVAR 

365, 00:21-00:23). When Defendant reached Plaintiff’s lower back, Plaintiff pulled 

away and stepped towards the cell. Id. Three of the officers (LoDuca, Novosal, and 

43 These videos are identified in the motion as Exhibits 3, 4, and 5. They 

were provided to the Court on a thumb drive. They are saved under the following 

filenames: DEF000003-DIVAR 365_CONVERTED; DEF000064 (DIVAR 

364)_CONVERTED; and DEF00004-Handheld_CONVERTED. For ease of 

reference we will cite to these videos as DIVAR 365, DIVAR 364, and Handheld 

Camera. Where appropriate, references will include a timestamp to direct the Court 

and parties to the relevant portion of the video. 

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Defendant), were met with resistance as they pulled Plaintiff back and put him on 

the ground. (DIVAR 365, 00:23-00:43). Novosal secured Plaintiff’s left side, 

LoDuca secured Plaintiff’s right side, and Defendant was immediately behind 

Plaintiff over the center of Plaintiff’s body. Id. 

Defendant rose from the scrum as soon as Plaintiff appeared secure, and 

began conducting a pat search while Plaintiff was on the ground in cuffs. (DIVAR 

365, 00:38-01:55); (DIVAR 364, 00:26-01:46). Novosal and LoDuca continued to 

restrain Plaintiff, one officer on each side. Id. While the pat search was underway, 

Stabley left the frame. Id. Once the pat search was complete, Defendant joined the 

other two officers in restraining Plaintiff. Id. His hands appear to be placed on or 

near Plaintiff’s right arm. Id. 

One minute after he left the frame, Stabley reappeared with a handheld 

camera and began to record. Id. Shortly after Stabley returned, Defendant left the 

frame and returned with a spit hood, which he and LoDuca attempted to place over 

Plaintiff’s head. (DIVAR 365, 01:55-02:26); (DIVAR 364, 01:46-02:18). 

Unlike the surveillance videos, the video taken with the handheld camera 

includes audio. The handheld camera shows that Novosal was calmly restraining 

Plaintiff’s left side, with his hands on Plaintiff’s arm and leg. (Handheld Camera, 

00:08-14:57). LoDuca was calmly restraining Plaintiff’s right side, with his hands 

placed on Plaintiff’s head and neck, and then later on Plaintiff’s neck and arm. Id. 

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While on the ground, Plaintiff announced that Defendant punched him. 

(Handheld Camera, 04:34-05:02). He then reported that it didn’t hurt, and that his 

sister hits harder than Defendant. Id. 

When Defendant returned, he had a spit hood and attempted to place it over 

Plaintiff’s head. (Handheld Camera, 06:02-07:46). A corrections officer instructed 

“hold on Royal. Don’t resist.” Id. At that time, the right side of Plaintiff’s face was 

on the ground. Id. Defendant reached over Plaintiff from behind. Id. LoDuca was 

on Plaintiff’s right side. Id. Defendant and LoDuca appeared to have some 

difficulty getting the spit hood to fit over Plaintiff’s hair. Id. The corrections 

officers again cautioned Plaintiff to stop resisting and put on the spit hood. Id. One 

officer said, “he is trying to bite me.” Id. Plaintiff appeared to be moving his jaw in 

order to displace the spit hood. Id. LoDuca noted that the hood was “off Plaintiff’s 

mouth again,” and pulled it down. Id. LoDuca remarked that Plaintiff was 

“chewing through” the spit hood. Id. Later, when Plaintiff was brought to the 

medical room, there were large holes in the spit hood. (Handheld Camera, 21:52-

22:28). 

Following the use of force, Plaintiff was escorted to the medical room. (Doc. 

46, ¶ 20). After confirming with Plaintiff that he was not going to spit, the spit 

hood was removed. (Handheld Camera, 22:13-22:28). LoDuca conducted a pat 

search of Plaintiff’s person. (Handheld Camera, 25:28-27:48). Plaintiff denied he 

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had any contraband. Id. Plaintiff did not resist the search. Id. When LoDuca 

reached Plaintiff’s leg he discovered a package of tobacco concealed in Plaintiff’s 

thermal pants. Id. A misconduct report was issued charging Plaintiff with 

possession of contraband (the tobacco), and failing to report the presence of 

contraband. (Doc. 46-6, p. 36); (Doc. 46-6, p. 38). 

After the use of force, Plaintiff was offered medical care twice; first at 11:32 

a.m., then at 11:56 a.m. (Doc. 46-6, p. 22); (Handheld Camera, 21:29-22:13, 

46:27-46:43). He refused each offer, and stated that there was nothing wrong with 

him. Id. No visible injury to Plaintiff’s face was shown on the video. 

The photographs were taken around 11:32 a.m., fifteen to twenty minutes 

after the use of force. (Doc. 46-6, p. 22); (Handheld Camera, 22:16-24:25). No 

visible injury to Plaintiff’s face is shown in the relevant picture. (Doc. 46-6, p. 53). 

D. DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT

 The video does not show any “punch” or closed-fisted strike to Plaintiff’s 

face. To the extent Plaintiff alleges that Defendant applied some minor force to 

“redirect” Plaintiff’s face, however, the video evidence does not bear this out. 

Plaintiff’s face, and Defendant’s hands, are not clearly visible on either DIVAR 

video. The use of force at issue occurred before the handheld camera was in use. 

Thus, construing the facts in the light most favorable to Plaintiff, we are compelled 

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to conclude for the purposes of this motion that there is a triable issue as to 

whether Defendant used some minor degree of force on Plaintiff’s face. 

 Having found that there is a triable issue as to whether some type of force 

was applied, we must now evaluate whether that force was excessive. Defendant 

argues that, based on the application of the Whitley factors the force used was de 

minimis, and therefore is excluded from constitutional recognition. Plaintiff 

disagrees. 

 Based on Defendant’s DC-121 report, his application of force was a 

response to Plaintiff’s conduct (i.e., Plaintiff rolled away and clinched his mouth as 

if he was going to spit). Plaintiff contends that he did not clinch his mouth, had no 

intention to spit, and never did spit. Once again, the video footage does not 

blatantly contradict either account. It is not clear whether Plaintiff clinched his 

mouth.44 Even assuming he did not, and gave no indication he was going to spit on 

the officers physically securing him on the floor, the Whitley factors almost 

universally weigh in favor of Defendant. There is no evidence that force was 

applied to Plaintiff’s face to inflict harm, and instead was applied in an effort to 

assist the corrections officers attempting to restore order when faced with an 

agitated inmate, possibly in possession of a fire-starting device, who refused a pat 

search after setting his own cell on fire in an apparent suicide attempt. 

44 Although Plaintiff denies that he attempted to roll of clinched his mouth, 

this denial is not included in his sworn declaration. (Doc. 58-1, p. 1). 

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 The first and fourth Whitley factors, the need for application of force and the 

extent of the threat, both weigh in favor of Defendant. Plaintiff had a past history 

of spitting on staff. (Handheld Camera, 55:06-55:14). On the day in question, 

approximately five minutes before Defendant’s use of force, Plaintiff set fire to his 

cell, and the fire-starting device had not been recovered. (Doc. 46-6, p. 30) (noting 

that a fire was observed in Plaintiff’s original cell at 11:07 a.m.); (Handheld 

Camera, 26:24-27:26) (corrections officer speculating Plaintiff must have had a 

lighter or something to set the fire); (Doc. 46-6, p. 39) (reporting that a lighter was 

recovered in the cell where plaintiff started the fire on October 14, 2017, at 6:40 

p.m.). Seconds before Defendant’s application of force Plaintiff physically resisted 

a pat search. (Doc. 46-6, p. 30) (noting that Plaintiff resisted a pat search and was 

put on the ground to gain compliance at 11:11 a.m.). According to his DC-121 

report, Defendant redirected Plaintiff’s head away from other corrections officers 

because he believed Plaintiff intended to spit or bite. (Doc. 46-6, p. 29). Given 

Plaintiff’s history coupled with his agitated state and physical resistance, 

Defendant’s belief was objectively reasonable. Plaintiff’s actions after the 

application of that force lend further credence to the objective reasonableness of 

that belief.45 

45 Plaintiff resisted and became agitated when Defendant and LoDuca put a 

spit hood over Plaintiff’s head. (Handheld Camera, 06:02-07:46). The video shows 

that Plaintiff attempted to dislodge the spit hood by moving his jaw, and chewed 

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Thus, even accepting Plaintiff’s position that he had no intention of spitting, 

no reasonable factfinder could conclude from the evidence that Defendant was 

objectively unreasonable in his belief that Plaintiff’s conduct posed a threat to the 

security of the institution and to the safety of the officers tasked with securing 

Plaintiff. Plaintiff was agitated, had a history of spitting on corrections staff, may 

have been in possession of a fire-starting device, and physically resisted attempts 

to conduct a pat search.46 

The second Whitley factor, the relationship between the need and amount of 

force used, weighs in favor of Defendant. In his DC-121 report, Defendant states 

that he believed Plaintiff intended to spit on staff. Novosal and LoDuca were on 

the floor in close proximity to Plaintiff at the time. Plaintiff, once again, only offers 

the unsupported assertion that he was not going to spit. The force applied, 

several holes in the spit hood. (Handheld Camera, 06:02-07:46); (Handheld 

Camera, 21:52-22:28). 

46 See Lewis v. Wetzel, No. 1:12-CV-02208, 2017 WL 3233053, at *9 (M.D. 

Pa. July 31, 2017) (finding that taking an inmate to the ground and applying a spit 

hood was not excessive force even if the resisting inmate had no intention of 

spitting because the Defendant reasonably perceived a threat); Young v. Coleman, 

No. Civ. A. 10-786, 2012 WL 2327917 (W.D. Pa. Apr. 16, 2012) (granting a 

defendant’s motion for summary judgment on an excessive force claim because the 

defendant reasonably perceived the plaintiff to be a threat), report and 

recommendation adopted 2012 WL 2325722 (W.D. Pa. June 19, 2012); Whitley, 

475 U.S. at 320-21 (providing that given the “ever present potential for violent 

confrontation and conflagration” in prison settings, measures taken by prison 

officials to prevent internal disturbances are “accorded wide-ranging deference” 

and the court must refrain from “critique[ing] in hindsight decisions necessarily 

made in haste, under pressure, and frequently without the luxury of second 

chance.”). 

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redirecting Plaintiff’s head away from the officers so that he could not easily spit 

on them, was proportionate to the need. In other cases, courts have reasoned more 

aggressive applications of force were not excessive to thwart an inmate’s attempt 

to spit on a corrections officer.47 

The third Whitley factor, the extent of the injury inflicted, weighs in 

Defendant’s favor. An inmate need not prove a significant injury in order to 

establish an excessive force claim.48 The absence of serious injury, however, 

“provide[s] some indication of the amount of force applied.”49 For example, “[a]n 

inmate who complains of a ‘push or shove’ that causes no discernible injury almost 

certainly fails to state a valid excessive force claim.”50 Here, Plaintiff alleges his 

face was bruised and swollen. This allegation is blatantly contradicted by the video 

evidence and pictures Defendant supplied to support his motion.51 Moreover, 

Plaintiff was twice offered, and twice refused, medical assessment because there 

was “nothing wrong” with him. 

47 Lewis, 2017 WL 3233053, at *9 (citing Hardwick v. Packer, No. 1:12-

CV-1936, 2013 WL 4016495 at *14 (M.D. Pa. Aug. 6, 2013) (finding that using 

force to put an inmate on the ground was not excessive where an inmate spat on a 

corrections officer)). 

48 Wilkins v. Gaddy, 559 U.S. 34, 37 (2010). 

49 Id. 50 Id. (citing Hudson, 503 U.S. at 9). 

51 See Scott v. Harris, 550 U.S. 372, 380 (2007) (explaining that where a 

party’s “version of events is so utterly discredited by the record that no reasonable 

jury could have believed him,” the court ruling on a motion for summary judgment 

should not rely “on such visible fiction; I should [view] the facts in the light 

depicted by the videotape.”). 

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The fifth Whitley factor, efforts made to temper the force, is neutral. The 

force applied, redirecting Plaintiff’s head away from the other corrections officers 

to thwart potential spitting, is comparable to a “push” or “shove” at most. 

Tempering such a de minimis use of force is likely not possible. 

Based on our consideration of these factors, we find that no reasonable trier 

of fact could conclude that Defendant’s application of force to redirect Plaintiff’s 

face in an effort to thwart a potential spitting threat was excessive in violation of 

Plaintiff’s Eighth Amendment rights. Plaintiff has not presented evidence that 

would establish that there is an issue of material fact as to whether Defendant acted 

maliciously or sadistically to cause harm to him. In fact, Plaintiff himself admitted 

on camera that the force caused no physical harm. Instead, the evidence establishes 

that Defendant, and the other corrections officers, used a reasonable amount of 

force to preserve internal order and secure Plaintiff. Because Plaintiff’s Eighth 

Amendment right was not violated by this use of force, Defendant is entitled to 

qualified immunity. 

[The next page contains the Recommendation] 

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V. RECOMMENDATION 

Accordingly, it is RECOMMENDED that: 

(1) Defendant’s Motion for Summary Judgment (Doc. 45) be 

GRANTED. 

(2) The Clerk of Court be DIRECTED to CLOSE this case. 

Date: August 29, 2023 BY THE COURT 

 s/William I. Arbuckle 

 William I. Arbuckle 

 U.S. Magistrate Judge 

 

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UNITED STATES DISTRICT COURT 

MIDDLE DISTRICT OF PENNSYLVANIA 

JAMAR ROYAL, 

 Plaintiff 

 

 v. 

 

C.O. BOONE, 

 Defendant 

) CIVIL ACTION NO. 4:19-CV-1993 

) 

) (MARIANI, D.J.) 

) 

) (ARBUCKLE, M.J.) 

) 

) 

NOTICE OF LOCAL RULE 72.3 

NOTICE IS HEREBY GIVEN that any party may obtain a review of the 

Report and Recommendation pursuant to Local Rule 72.3, which provides: 

Any party may object to a magistrate judge’s proposed findings, 

recommendations or report addressing a motion or matter described in 28 

U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a 

prisoner case or a habeas corpus petition within fourteen (14) days after 

being served with a copy thereof. Such party shall file with the clerk of 

court, and serve on the magistrate judge and all parties, written objections 

which shall specifically identify the portions of the proposed findings, 

recommendations or report to which objection is made and the basis for such 

objections. The briefing requirements set forth in Local Rule 72.2 shall 

apply. A judge shall make a de novo determination of those portions of the 

report or specified proposed findings or recommendations to which 

objection is made and may accept, reject, or modify, in whole or in part, the 

findings or recommendations made by the magistrate judge. The judge, 

however, need conduct a new hearing only in his or her discretion or where 

required by law, and may consider the record developed before the 

magistrate judge, making his or her own determination on the basis of that 

record. The judge may also receive further evidence, recall witnesses, or 

recommit the matter to the magistrate judge with instructions. 

Failure to file timely objections may constitute a waiver of any appellate rights. 

Date: August 29, 2023 BY THE COURT 

 s/William I. Arbuckle 

 William I. Arbuckle 

 U.S. Magistrate Judge 

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