FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 May 11, 2007

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 07-10241

Non-Argument Calendar

 

D. C. Docket No. 05-00170-CV-1

NICKOLAS FELDER,

Plaintiff-Appellant,

versus

TONY HOWERTON, Warden,

DENNIS BROWN, Deputy Warden, et al.,

Defendants-Appellees.

 

Appeal from the United States District Court

for the Southern District of Georgia

 

(May 11, 2007)

Before DUBINA, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
2

At the time he filed this lawsuit, appellant Nickolas Felder (“Felder”) was a

prisoner at Augusta State Medical Prison in August, Georgia. Felder brought this

action under 42 U.S.C. § 1983 alleging that defendants Riles, Taylor, and

Woodson, used excessive force on him. Felder also claimed that defendants

Brown and Howerton were aware that other inmates of the prison were being

beaten and/or tortured by security staff and yet they failed to take any corrective

action. Felder’s complaint also contained a torture claim under 18 U.S.C. § 2340,

et seq., and state law claims under the Georgia Tort Claims Act. See O.C.G.A. §

50-21-25(a). 

We review a district court’s grant of summary judgment de novo. U.S.

Anchor Mfg., Inc. v. Rule Industries, Inc., 7 F.3d 986, 993 (11th Cir. 1993). 

After reviewing the record and reading the parties’ briefs, we conclude that

the district court properly granted the defendants’ motion for summary judgment

on Felder’s Eighth Amendment excessive force claims and his Fourteenth

Amendment due process claims. The record demonstrates that Felder suffered at

most a superficial three millimeter abrasion on his chest. The record also

demonstrates that Felder initiated the incident in question by attacking Officer

Riles. Feeling threatened, Officer Riles responded by pushing Felder down and

holding him down until help arrived. Felder received no marks on his neck and no
3

bruises. Other than the self-serving testimony offered by Felder, there was no

other evidence that Officers Taylor and Woodson used any force against him. 

Indeed, the medical evidence demonstrated that Felder suffered no fractures and

indicated that his superficial abrasion was suffered in a basketball game five days

prior to the incident in question. 

We also agree with the district court’s conclusion that Warden Howerton

and Deputy Warden Brown were entitled to summary judgment because they were

not present during the incident. As the district court correctly found, it is wellsettled law that § 1983 does not provide for vicarious liability. See Monell v.

Dep’t of Soc. Servs., 436 U.S. 658 (1978); Denno v. Sch. Bd. of Volusia County,

218 F.3d 1267, 1276 (11th Cir. 2000). Because Felder failed to establish that a

constitutional violation occurred, it was not necessary for the district court to

determine if there was a policy, custom or practice causing such deprivation. See

Graham v. Conner, 490 U.S. 386, 394 (1989). We also agree with the district

court that Felder’s claim for a violation of 18 U.S.C. § 2340, et seq., fails as a

matter of law. Because the district court determined that there was no excessive

force, there can be no torture as defined by § 2340. 

Finally, we agree that the district court properly dismissed Felder’s state law

claims. 
4

For the above-stated reasons, and because we find no merit to any of the

arguments Felder makes in this appeal, we affirm the district court’s grant of

summary judgment.

AFFIRMED.