IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

JAMAR ROY AL, No. 4:19cv1993 

(Judge Munley) 

Plaintiff 

v. 

C.O. BOONE, 

Defendant ............................................................................................................ 

............................................................................................................ 

MEMORANDUM 

Before the court for disposition is the Report and Recommendation ("R&R") 

issued by Magistrate Judge William I. Arbuckle on August 29, 2023. The R&R 

recommends granting the defendant's second motion for summary judgment in 

this action involving allegations of the use of excessive force on plaintiff. Plaintiff 

Jamar Royal has filed objections to the R&R. The parties have briefed their 

respective positions, and the matter is ripe for disposition. 

Background1 

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

housed in cell 1030 of the restricted housing unit ("RHU"). At approximately 

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

1 These facts are derived from the R&R. The court quotes them here with only minor editing 

and stylistic changes. (See Doc. 67, R&R at 1-4). To avoid repetition, the citations to the 

record have been omitted. 

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Through the closed cell door, Defendant Corrections Officer Boone put 

plaintiff in handcuffs, ordered him to go to the back of his cell, and used a fire 

extinguisher to put out the fire. Once the fire was extinguished, defendant 

opened the cell door and four corrections officers escorted plaintiff to RHU cell 

1048. 

When the plaintiff and the corrections officers arrived at cell 1048, plaintiff 

took a step into the cell. Officers guided him backwards out of the cell, for a pat 

search of his person. Defendant Corrections Officer Boone conducted the pat 

search. When defendant reached plaintiff's lower back, plaintiff began to resist 

the search by pulling away from the officers. Defendant and two other 

corrections officers put plaintiff on the ground. 

Plaintiff alleges that, while he was on the ground, not resisting and in 

handcuffs, defendant "struck" him in the face "with a closed fist." Defendant 

argues, relying on video footage of the incident, that there is no evidence plaintiff 

was "punched" in the face. 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. 

Following the incident, plaintiff was escorted to the medical room for 

assessment and treatment. Photographs were taken of plaintiff's person. 

Medical staff noted no injuries. 

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Based upon this incident, plaintiff instituted the instant lawsuit pursuant to 

42 U.S.C. § 1983 for a violation of his Eighth Amendment right to be free from 

cruel and unusual punishment. On September 23, 2019, the Centre County 

Court of Common Pleas received plaintiff's complaint. 

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 [sic] 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] crule [sic] 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 , Com pl.) 

As relief, plaintiff requests money damages. (kl) On October 3, 2019, the 

Centre County Court of Common Pleas received plaintiff's civil cover sheet. On 

October 10, 2019, plaintiff was granted leave to proceed in forma pauperis. On 

October 23, 2019, defendant was served. 

On November 20, 2019, defendant removed plaintiff's state court action to 

federal court. The defendant filed an initial motion for summary judgment based 

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solely on the issue of PLRA exhaustion. Ultimately, the court denied this motion. 

(Doc. 37). 

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

judgment addressing the merits of plaintiff's Eighth Amendment claim. (Doc. 45). 

After the parties fully briefed the motion, Magistrate Judge Arbuckle issued the 

instant R&R. The R&R recommends the granting of defendant's motion for 

summary judgment on the grounds that the evidence does not support a claim for 

excessive force, and the defendant is thus shielded by qualified immunity. 

Plaintiff filed objections and the parties have briefed their respective positions, 

bringing the case to its present posture.

2 

Jurisdiction 

As plaintiff brings suit for the use of excessive force, his claim falls under 

42 U.S.C. § 1983, and we have federal question jurisdiction. See 28 U.S.C. § 

1331 ("The district courts shall have original jurisdiction of all civil actions arising 

under the Constitution, laws, or treaties of the United States."). 

Legal standard 

In disposing of objections to a magistrate judge's report and 

recommendation, the district court must make a de novo determination of those 

2 The Honorable Robert D. Mariani transferred this case to the undersigned on November 7, 

2023. 

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portions of the report against which objections are made. 28 U.S.C. § 

636(b)(1)(c); see also Sullivan v. Cuyler, 723 F.2d 1077, 1085 (3d Cir. 1983). 

The court may accept, reject, or modify, in whole or in part, the findings or 

recommendations made by the magistrate judge. Henderson v. Carlson, 812 

F.2d 874,877 (3d Cir. 1987). The district court judge may also receive further 

evidence or recommit the matter to the magistrate judge with instructions. kl 

In deciding whether to adopt portions of the the report and recommendation 

to which no objections have been filed, we must determine if a review of the 

record evidences plain error or manifest injustice. FED. R. CIv. P. 72(b) 1983 

Advisory Committee Notes ("When no timely objection is filed, the court need 

only satisfy itself that there is no clear error on the face of the record to accept 

the recommendation"); see also 28 U.S.C. § 636(b)(1 ); Sullivan v. Cuyler, 723 

F.2d 1077, 1085 (3d Cir. 1983). 

Discussion 

The R&R concludes that summary judgment is appropriate in favor of the 

defendant under the doctrine of qualified immunity. Qualified immunity shields 

"government officials performing discretionary functions .. . from liability for civil 

damages insofar as their conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have known." Harlow v. 

Fitzgerald, 457 U.S. 800, 102 (1982). "In considering whether qualified immunity 

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attaches, courts perform a two-pronged analysis to determine: (1) 'whether the 

facts that the plaintiff has alleged make out a violation of a constitutional right,' 

and (2) 'whether the right at issue was "clearly established" at the time of the 

defendant's alleged misconduct.'" Kedra v. Schroeter, 876 F.3d 424, 434 (3d Cir. 

2017), cert. denied, 138 S. Ct. 1990 (2018) (quoting Pearson v. Callahan, 555 

U.S. 223, 232 (2009)). Here the R&R suggests that the plaintiff has not alleged 

facts that make out a violation of a constitutional right; therefore, qualified 

immunity applies. 

Plaintiff alleges defendant exerted excessive force in violation the Eighth 

Amendment prohibition of cruel and unusual punishment. To constitute cruel and 

unusual punishment, the force used must be "repugnant to the conscience of 

mankind" and "inconsistent with contemporary standards of decency." Whitley v. 

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

The court's task when evaluating an excessive force claim is to determine if 

officers used force in a good faith effort to maintain/restore discipline or if they 

applied force maliciously and sadistically to cause harm. Smith v. Mensigner, 

293 F.3d 641, 649 (3d Cir. 2002). The United States Supreme Court has 

identified the following five (5) factors a court may examine in making this 

decision: 1) the need for the application of force; 2) the relationship between the 

need and the amount of force used; 3) the extent of the injury inflicted; 4) the 

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extent of the threat to the safety of staff and inmates, as reasonably perceived by 

responsible officials on the basis of facts known to them; and 5) any efforts made 

to temper the severity of the forceful response. Whitley, 475 U.S. at 322. 

The R&R analyzed all of these factors and concluded that the first, second, 

third, and fourth factor weigh in favor of the defendant. According to the R&R, 

the fifth factor is neutral. Thus, a balancing of the factors indicate that plaintiff did 

not make out a claim of excessive force under the Eighth Amendment and the 

doctrine of qualified immunity shields the defendant from liability. (Doc. 67, R&R 

at 23-26). The plaintiff raises six (6) objections to the R&R which the court will 

address seriatim. 

1. Court acting as fact-finder 

The plaintiff first objects to the R&R's analysis of the facts of the case, and 

asserts that the court acted like a "jury" in interference with the plaintiff's right to a 

jury trial under the Seventh Amendment to the Constitution. (Doc. 70, Pl. 's Obj. 

at 2). This objection lacks merit. 

Before performing the analysis of plaintiff's excessive force claim, the R&R 

discusses whether the defendant's statement of material facts should be deemed 

undisputed and whether the portions of plaintiff's statement of material fact, 

which are non-responsive to defendant's statement of material facts should be 

disregarded. (Doc. 67, R&R, 14-16). 

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The R&R appropriately addressed this issue. Local Rule 56.1 provides that 

a party moving for summary judgment must file a statement of material facts as 

to which that party contends there is no genuine issue to be tried. A party 

opposing summary judgment must file "a separate, short and concise statement 

of material facts, responding to the numbered paragraphs" in the movant's 

statement of material facts. L.R. 56.1. "All material facts set forth in the 

statement required to be served by the moving party will be deemed to be 

admitted unless controverted by the statement required to be served by the 

opposing party." Here, defendant filed a statement of material facts but instead 

of responding thereto, plaintiff filed a separate statement of material facts -

unresponsive to the defendant's statement. (Doc. 59). The non-responsive 

portions of a statement of material facts filed by a non-moving party may be 

stricken or disregarded. See. e.g. , Williams v. Gavins, No. 1:13-cv-0387, 2015 

WL 65080, at *5 (M.D. Pa. Jan. 5, 2015), aff'd sub nom. Williams v. Gavin, 640 F. 

App'x 152 (3d Cir. 2016) (unpublished); Bautista v. Carey, No. 1 :21cv126, 2023 

WL 157991 , at *5 n.2 (M.D. Pa. Jan. 11 , 2023). Thus, Magistrate Judge 

Arbuckle appropriately refrained from the consideration of any unsupported and 

non-responsive allegations set forth in plaintiff's statement of facts. 

The R&R further deemed as admitted the material facts set forth in 

defendant's statement of material facts if those facts were not contradicted by 

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other evidence in the record. (Doc. 67, p. 15). This procedure was appropriate 

under Local Rule 56.1. See Bautista, No. 1:21cv126, 2023 WL 157991, at *5 n.2 

Accordingly, plaintiff's objection dealing with the manner in which the R&R treats 

the facts of this case will be denied. 

2. The R&R's use of terminology 

Plaintiff next objects to the court referring to his being struck by a closed fist 

as a "redirection." The R&R, however, does not suggest that the use of the term 

"redirection" is more appropriate than indicating defendant struck plaintiff with a 

closed fist. The R&R merely points out that a review of plaintiff's materials 

indicates that the strike he refers to is the same as the "redirection" discussed in 

the correctional facility's report, DC-121. (See Doc. 67 at 16-17). The fact that 

two different terms are used to describe the use of force does not affect the 

substance of plaintiff's claim. Accordingly, this objection will be denied. 

3. Use of force 

The plaintiff's third objection refers the following statement made on page 

20 of the R&R: "After the use of force, Plaintiff was offered medical care twice .. 

. . " Plaintiff evidently contends that the R&R is inconsistent in that it deems the 

defendant's actions as a "use of force" but then ultimately rules against the 

plaintiff. This objection lacks merit. The R&R concludes, by reviewing the facts 

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in the light most favorable to the plaintiff, that a triable issue of fact exists as to 

whether force was used against him. (Doc. 67, R.&R. at 22) The fact that 

defendant may have used force, however, does automatically give rise to a 

violation of defendant's Eighth Amendment rights. The force used must be 

"excessive" in a constitutional sense. See Whitley, supra. The R&R concludes, 

based upon its legal analysis, and applicable Supreme Court precedent, as 

discussed more fully below, that any force used was not excessive under the 

Eighth Amendment. Accordingly, plaintiff's third objection will be overruled. 

4. Visible injury 

The R&R concludes that plaintiff suffered no visible injury due to the 

incident. This conclusion is based upon the video of the incident. Plaintiff 

objects to this conclusion on the basis that injuries do not always leave visible 

marks and he may not have exhibited much of a bruise as his complexion is 

medium brown. This objection will be overruled. 

The video speaks for itself and reveals no injury to the plaintiff's face. 

Plaintiff's face does not appear swollen or bruised. The R&R appropriately uses 

the evidence to determine that plaintiff suffered no visible injury. See Scott v. 

Harris, 550 U.S. 372, 380-81 (2007) (explaining that when a party's "version of 

events is so utterly discreditted by the record that no reasonable jury could have 

believed him," the court deciding the summary judgment motion should not rely 

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on plaintiff's allegations, but should view "the facts in the light depicted in the 

videotape.") Moreover, plaintiff refused medical treatment twice and indicated 

that nothing was wrong with him. (Doc. 46-6, Def. Stmt. of Facts, p. 22). The 

R&R, however, does point out that a plaintiff "need not prove a significant injury 

in order to establish an excessive force claim." (Doc. 67 at 25). 

Plaintiff's argument that the bruising could not be seen because of his 

complexion is evidently raised for the first time in his objections and is not 

supported by evidence of record. Therefore, plaintiffs objection lacks merit and 

will be overruled. 

5. Video of the punch or closed fist strike 

Plaintiff's fifth objection involves the R&R's statement that the "video does not 

show any 'punch' or closed-fisted strike to Plaintiffs face." (Doc. 67, R&R at 21 ). 

Plaintiff appears to allege that this statement is improper as the R&R further 

notes that the handheld camera was not in use at the time force was applied and 

the R&R suggests that due to the angle of the other cameras, it could not be 

determined whether a punch occurred or not. 

This objection appears to merely be a misreading of the R&R. When 

Magistrate Judge Arbuckle wrote that the video does not show a punch, he was 

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not determining that a punch did not occur. He merely points out that the video 

itself does not show whether a punch occurred. 

Moreover, the R&R concludes for the purpose of the motion that it is a 

question of fact as to whether force was used on plaintiff's face. (Doc. 67, R&R 

at 22). The R&R then analyzes whether the force was excessive. Accordingly, 

the plaintiff's fifth objection will be overruled. 

6. Whitley factors 

As noted above, the R&R applies the factors set forth in Whitley v. Albers, 

4 75 U.S. 312 ( 1986) and concludes that the balance of the factors weighs in 

favor of summary judgment being granted to the defendant. Plaintiff objects to 

this recommendation for several reasons. First, he claims the handheld camera 

was turned off and then defendant used force and the camera was turned back 

on. Plaintiff cites to nothing in the record that establishes or even raises a 

question as to whether this occurred. It appears that the handheld camera was 

turned on at some point during the incident, after the alleged use of force, not 

that the camera was turned on, then turned off and then turned back on again. 

Accordingly, this objection will be overruled. 

Plaintiff sixth objection deals with whether he tried to bite the corrections 

officers during the incident. Plaintiff argues that he did not try to bite the officers. 

The R&R, however, does not base its holding on a finding that plaintiff tried to 

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bite the officers. Magistrate Judge Arbuckle suggests that even assuming that 

plaintiff did not clinch his mouth to spit or bite, and that he 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 Defendants. (Doc. 67 at 22). 

The R&R further explains that "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 

officer 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." (~ at 24 ). 

Thus, plaintiff's statement that he had no intention of spitting is not a convincing 

objection to the R&R's analysis which was made "even accepting Plaintiff's 

position that he had no intention of spitting." (Doc. 67, R&R at 24). This portion 

of the objection will be overruled. 

Plaintiff's also notes in his objection that he need not prove a significant 

injury to prevail on a § 1983 claim. Any objection plaintiff makes on this point 

lacks merit. The R&R applied the same legal tenet upon which plaintiff relies, 

that is: "An inmate need not prove a significant injury in order to establish an 

excessive force claim." (Doc. 67 at 25). The R&R in no way held that plaintiff's 

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claim should be dismissed because he did not prove a significant injury. Thus, 

any claim that the R&R did not properly identify, state or apply this law will be 

overruled. 

The court has addressed all the specific objections raised by the plaintiff. 

The remainder of the R&R is not objected to and will be adopted as there is no 

clear error on the face of the record. 28 U.S.C. § 636(b)(1 ); Sullivan v. Cuyler, 

723 F.2d 1077, 1085 (3d Cir. 1983). 

Conclusion 

For the foregoing reason, the plaintiff's objections will be overruled. The 

R&R's recommendation that the defendant's motion for summary judgment be 

granted will be adopted. An appropriate order follows. 

Date:#f 

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