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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ISAAC L. PETERSON,

Plaintiff,

vs. Case No. 4:10cv332-MP/WCS

MICHAEL R. McCOY,

Defendant.

 /

SECOND REPORT AND RECOMMENDATION1

Discovery ended on July 18, 2011, doc. 43, and Defendant filed a motion for

summary judgment on August 4, 2011. Doc. 53. Plaintiff, a pro se inmate, was advised

of his obligation to respond to that motion, doc. 61, and advised that his own motion for

summary judgment, doc. 54, was procedurally insufficient. Doc. 61. Plaintiff withdrew

his motion for summary judgment, doc. 65, and Plaintiff's motion to strike parts of the

Defendants' motion for summary judgment, doc. 63, was denied. Doc. 70. 

Furthermore, it was determined that Plaintiff's "amended sworn affidavit," doc. 64, could

not be considered because Plaintiff did not sign the affidavit. Doc. 70. 

1

 The first report and recommendation, doc. 33, recommended denial of

Defendant's motion to dismiss, doc. 22. It was adopted on April 22, 2011. Doc. 44.

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On September 26, 2011, Plaintiff filed his memorandum in opposition to the

Defendant's motion for summary judgment. Doc. 71. Defendant's motion for leave to

file a reply, doc. 72, was denied. Doc. 73. The summary judgment motion, doc. 53, and

Plaintiff's response, doc. 71, are ready for a ruling.

Allegations of the Amended Complaint, Doc. 7

Plaintiff alleged that on March 26, 2010, after he had a sick call visit, Defendant

McCoy ordered Plaintiff to step into the hallway to be handcuffed. Doc. 7, p. 5. 

Defendant told Plaintiff he was going to be placed in administrative confinement for

disorderly conduct. Id. While another officer put handcuffs on Plaintiff, Plaintiff asked

Defendant McCoy how he was being disorderly. Id. The Defendant suddenly grabbed

Plaintiff's right arm and pushed him "hard up against the wall in medical hallway." Id.

Plaintiff said he felt a sharp pain in the arm Defendant McCoy grabbed. Id. 

Plaintiff was escorted to administrative confinement and as he entered the area,

Plaintiff noticed his arm was bleeding from the place on his arm where he had felt the

sharp pain. Id. Plaintiff informed the on-duty confinement officer of his injury, and the

officer told Plaintiff to write an informal grievance to the warden. Id., at 6. Plaintiff said

that on that same day, he wrote an informal grievance as directed and requested the

video record from the security camera be preserved for grievance purposes. Id.

On April 1, 2010, Plaintiff was taken back to the medical building and the wound

on Plaintiff's right arm was documented. Id. Plaintiff was transferred several times in

mid-April, 2010, and then on April 22, 2010, the Regional Inspector visited Plaintiff and

gave him the opportunity to write a witness statement detailing the incident that

occurred on March 26, 2010. Id., at 6. Plaintiff completed his witness statement, and

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then was placed under oath by the Inspector, swearing to the truth of the statement. Id.

Plaintiff alleged that he exhausted administrative remedies prior to initiating this case,

and states that the use of force by Defendant McCoy on March 26, 2010, is unrelated to

the disciplinary reports he received. Id., at 7. Plaintiff received two disciplinary reports

from this incident, charging disorderly conduct and disrespect to officials. Id.,

attachment, page number not available (doc. 7-1 on ECF, pp. 8 and 13).2

Legal standards governing a motion for summary judgment

On a motion for summary judgment, the Defendant initially has the burden to

demonstrate an absence of evidence to support the nonmoving party's case. Celotex

Corporation v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2553-54, 91 L. Ed. 2d

265 (1986). If they do so, the burden shifts to Plaintiff to come forward with evidentiary

material demonstrating a genuine issue of material fact for trial. Id. An issue of fact is

"material" if it could affect the outcome of the case. Hickson Corp. v. Northern

Crossarm Co., Inc., 357 F.3d 1256, 1259 (11th Cir. 2004) (citations omitted). 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. The court must decide "whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law." Hickson Corp., 357 F.3d at 1260, quoting Anderson v.

2

 References are to the paper copy and page number, followed by a reference (in

parenthesis) to the corresponding document and page in the electronic docket. Both

citations are referenced as a pro se litigant will not have access to the court's electronic

docket.

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Liberty Lobby, 477 U.S. 242, 252, 106 S. Ct. 2505, 2505, 91 L. Ed. 2d 202 (1986). All

reasonable inferences must be resolved in the light most favorable to the nonmoving

party, Watkins v. Ford Motor Co., 190 F.3d 1213, 1216 (11th Cir. 1999), if there is a

genuine dispute as to those facts. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769,

167 L.Ed.2d 686 (2007), cited in Ricci v. DeStefano, 129 S.Ct. 2658, 2677 (2009). 

"Where the record taken as a whole could not lead a rational trier of fact to find for the

nonmoving party, there is no genuine issue for trial." Matsushita Elec. Industrial Co.,

475 U.S. at 587 (internal quotation marks omitted), quoted in Ricci v. DeStefano, 129

S.Ct. at 2677. 

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

her 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.

The relevant Rule 56(e) evidence

Defendant's Evidence 

At approximately 6:30 a.m. on March 26, 2010, Plaintiff was in the medical

building for a sick call visit with Nurse Boatenreiter when Plaintiff became belligerent,

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and he was "becoming increasingly agitated." Doc. 53, p. 3; Ex. B (doc. 53-2).3 The

nurse stopped the sick call for Plaintiff due to Plaintiff's increasing agitation. Ex. J (doc.

53-10, pp. 3-4). The nurse called Defendant McCoy to the medical unit at

approximately 6:30 a.m. and Defendant McCoy tried to calm Plaintiff down. Ex. B. As

Plaintiff and the Defendant walked into the hallway, Defendant McCoy "continued to try

to calm him down." Id. However, Plaintiff became even more agitated, he "became

louder, more belligerent, disruptive and argumentative" and was "flailing his arms and

moving in a hostile and aggressive manner." Id. At that point, Defendant McCoy told

Plaintiff he would receive a disciplinary report for disorderly conduct and would be going

to confinement. Id. Plaintiff then yelled and cursed at Defendant McCoy, and was very

disrespectful. Id. 

Officer Wayne Scott was assigned to the medical unit that morning and heard

Plaintiff yelling and cursing at Defendant McCoy. Exhibits B, E (doc. 53-5). Officer

Scott went to assist Defendant McCoy and McCoy put Plaintiff "in a custodial hold" by

using his left hand to hold Plaintiff's right tricep. Ex. B. Plaintiff put his hands behind his

back and Defendant McCoy directed Officer Scott to put hand restraints on Plaintiff. 

Exhibits B, E. Defendant McCoy continued his custodial hold on Plaintiff while

summoning Sergeant Swain to escort Plaintiff to confinement. Ex. B. When Swain

arrived, Defendant McCoy released his custodial hold on Plaintiff and returned to his

regular duties. Id. Sergeant Swain then "summoned Sergeant Riggles and when he

arrived" they escorted Plaintiff to confinement without further incident. Ex. F (doc. 53-6),

3

 References to exhibits are to those attached to document 53, Defendant's

summary judgment motion. Plaintiff submitted only one exhibit, his affidavit, and it will

simply be referred to as Plaintiff's affidavit. 

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Ex. G (doc. 53-7). Sergeant Swain recalled that Plaintiff "was wearing a jacket" when

he escorted him from the medical building because Swain "had to search the jacket he

was wearing upon reaching confinement." Ex. F. 

Officer Scott did not observe Defendant McCoy push or shove Plaintiff into the

wall either before or after the restraints were applied. Ex. E. Plaintiff did not inform

Scott that Defendant McCoy had scratched his arm, "nor did he state that his right arm

hurt in any way." Id. Neither Sergeant Swain nor Sergeant Riggles saw Defendant

McCoy push or shove Plaintiff into a wall, and they saw no signs of injury to Plaintiff or

any blood. Exhibits F, G. 

Defendant McCoy states in his affidavit, "At no time did I push or shove [Plaintiff]

into a wall either before or after hand restraints were applied." Ex. B. Further, he

denies trying to scratch Plaintiff when placing him in the custodial hold. Id. He avers, "I

do not recall scratching him with my fingernail when I placed him in the custodial hold." 

Id. Additionally, Defendant McCoy points out that it is "unlikely" that he scratched

Plaintiff with his fingernail because he bites his "fingernails so they stay short." Id.

At 6:40 a.m. on the day of the incident, approximately 10 minutes after the

incident, a pre-special housing health assessment form was filled out. Ex. J (doc. 53-

10, p. 4). This form listed Plaintiff's vital signs. Id. Plaintiff's weight was 202 pounds. 

Id. "No" was indicated for the question as to whether Plaintiff had any apparent acute

medical reason that would preclude placement in special housing. Id. There was no

notation that he had any injury from the altercation with Defendant McCoy. Id. 

On the day after the incident, March 27th, Plaintiff had an appointment for

medical exercises for knee pain, but he signed a refusal of health services form. Ex. J

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(doc. 53-10, p. 5). There is no evidence on this form that Plaintiff told medical

personnel that day that he had any injury from the previous day. Id. 

Plaintiff first complained that he was injured on the second day after the incident

day, on March 28th, in response to two disciplinary reports for disorderly conduct and

disrespect to officials for his behavior on March 26th.4

 Ex. B (doc. 53-2, pp. 8-9). 

Plaintiff completed two witness statement forms and at that point, complained that

"Captain McCoy's fingernail dug into [his] flesh causing [him] loss of blood." Id., at 8. 

Plaintiff also claimed that Defendant McCoy's action is what "provoked [Plaintiff] to

anger." Id., at 9.

On April 1, 2010, Plaintiff again officially asserted that he had been injured. This

occurred when Plaintiff declared a "medical emergency" and a "post use of force

examination" was performed by Nurse Robinson. Ex. J (doc. 53-10, pp. 7-8). Plaintiff

alleged "staff abuse." Id. The medical record assessment states, "scab noted above

right elbow" but found "no other bruises, scratches or discoloration." Id. On a standard

diagram, the position of the scab was indicated behind the right elbow. Id. No medical

treatment was provided and the physician was not notified. Id. 

Plaintiff submitted an informal grievance on March 26, 2010, complaining that

Defendant McCoy used excessive force on him when he grabbed Plaintiff's arm and

4

 Plaintiff was found guilty of both disciplinary reports and punished with time in

disciplinary confinement but he did not have gain time forfeited. Exhibits C, D (doc. 53-

3, doc. 53-4).

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"pushed" him into the wall. Ex. H (doc. 53-8). Plaintiff did not mention injury to the back

of his right elbow.5 Id. 

Based on that informal grievance, an incident report was generated and

forwarded to Inspector Hayden for review and investigation. Ex. I (doc. 53-9). Inspector

Hayden obtained witness statements and reviewed Plaintiff's medical record as part of

his investigation. Exhibits L, M. Affidavits were obtained from several nurses,

Sergeants Riggles and Swain, Officer Scott, and Plaintiff. Id. During the investigation,

Nurse Carla Rhea stated in her affidavit that Plaintiff became upset because he did not

agree with Nurse Boatenreiter's assessment, and then he began yelling profanities at

Defendant McCoy. Ex. L (doc. 53-12, pp. 4-5). She admitted she could not see into the

hallway, but said she heard no noises that would indicate a struggle. Id. She said

Defendant McCoy "did not raise his voice or use any inappropriate language." Id. She

further said Plaintiff did not call out for help or indicate he was hurt, and she heard no

"thumps or bangs against walls in the hallway." Id. 

Nurse Boatenreiter also provided a sworn statement attesting to Plaintiff's

belligerent behavior. Ex. L (doc. 53-12, p. 7). She said that after Defendant McCoy

took Plaintiff out into the hallway, she remained in the triage room. Id. She could not

see them in the hall, but she heard Plaintiff cursing at Defendant McCoy. Id. She said

that Defendant McCoy calmly told Plaintiff "to face the wall and cuff up." Id. She further

5

 Plaintiff asserted in this informal grievance that while Defendant McCoy was

telling Plaintiff he would be locked up in confinement, a Sergeant put Plaintiff "in

handcuffs and after [Plaintiff] was secured in the handcuffs, Captain McCoy grabbed

[his] right arm and pushed [him] into the wall." Ex. H (doc. 53-8). Plaintiff said the

incident "took place in the Medical Department hallway directly in view of the

surveilance [sic] camera." Id. Plaintiff said he was "grieving against Capt. McCoy" and

the "use of excessive force." Id. 

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said that she never heard Plaintiff "give any verbal indication of being hurt or abused"

and she did not hear noise from the hallway indicating someone was "being pushed into

the wall." Id. 

Officer Scott said he responded to the scene to provide assistance because he

heard the verbal altercation between Plaintiff and Defendant McCoy. Ex. L (doc. 53-12,

p. 11). Officer Scott said he put Plaintiff in handcuffs and Plaintiff was given a "direct

verbal order by Captain McCoy to stay on the wall." Id. Officer Scott said Defendant

McCoy did not push Plaintiff against the wall, but "used verbal instructions to calm"

Plaintiff. Id. Likewise, Sergeant Swain stated that when he arrived on scene,

Defendant McCoy was holding Plaintiff in a custodial hold and Plaintiff was "facing the

wall and verbally abusing" Defendant McCoy. Ex. L (doc. 53-12, p. 9). He did not

observe Defendant McCoy "abuse, push, or shove" Plaintiff. Id. The Inspector's

disposition statement is that "the witnesses refuted" Plaintiff's allegations. Ex. L (doc.

53-12, p. 3).

Plaintiff provided his own sworn affidavit with his response. Doc. 71, pp. 4-5. 

Plaintiff said that while he was at sick call on March 26, 2010, the Nurse offered him an

exercise manual, which Plaintiff refused. Id., at 4. Defendant McCoy "entered the sick

call room and told" Plaintiff he was "going to confinement for disorderly conduct and"

directed Plaintiff to "step out into the hallway." Id. Plaintiff did so and Officer Scott

"came to place handcuffs on" Plaintiff. Id. While the handcuffs were being applied on

Plaintiff's wrist, with Plaintiff's arms behind his back, Plaintiff asked Defendant McCoy,

"How was I being disorderly?" Id. The Defendant did not answer Plaintiff, "but instead

grabbed [Plaintiff's] right tricep with his left hand and pushed [him] into the wall." Id.

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Plaintiff averred that he felt a sharp pain in his right tricep when Defendant McCoy

grabbed Plaintiff's "right tricep and pushed [him] into the wall." Id. 

Plaintiff said he was taken to confinement and when he "was uncuffed and put in

a cell [he] noticed that [he] was bleeding from [his] right tricep." Id., at 5. Plaintiff said

he "immediately told the officer in charge of confinement" but was told to just write an

informal grievance about it to the warden. Id. Plaintiff did so the same day, and it was

not until April 1, 2010, that Lieutenant Gray came to Plaintiff's cell and escorted Plaintiff

to the medical building. Id. There, Lieutenant Gray "took a picture of the wound caused

by [the Defendant] while a nurse took [his] vitals." Id. 

Legal Analysis

A claim that excessive and unnecessary force was used by correctional officers

is founded upon the Eighth Amendment and requires a showing of "unnecessary and

wanton infliction of pain." Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084,

89 L.Ed.2d 251 (1986). Relevant to the inquiry will be "the need for the application of

force, the relationship between the need and the amount of force that was used, [and]

the extent of injury inflicted." Id. at 320; see e.g., Williams v. Burton, 943 F.2d 1572,

1575 (11th Cir. 1991). The court should take a deferential view, "balancing the

prisoner's Eighth Amendment rights with the competing institutional concerns for the

safety of prison staff and inmates." Williams, 943 F.2d at 1575.

"The absence of serious injury is . . . relevant to the Eighth Amendment inquiry,

but does not end it." Hudson v. McMillian, 503 U.S. 1, 7, 112 S. Ct. 995, 999, 117 L.

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Ed. 2d 156 (1992).6 "[T]he Eighth Amendment's prohibition of cruel and unusual

punishment 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.' " 

Siglar v. Hightower, 112 F.3d 191, 193-94 (5th Cir. 1997) (emphasis added), quoting

Hudson, 503 U.S. at 10, 112 S. Ct. at 1000 (considering the "physical injury"

requirement of the PLRA). Further, "the injury must be more than de minimus, but need

6

 With respect to the "injury" issue in excessive force cases, it is important to

review what the Court said in Hudson in context, and not confuse the extent of injury

incurred with more relevant question, whether the force used was excessive:

In the excessive force context, society's expectations are different [from

society's expectations as to the level of conditions-of-confinement and

medical care for prisoners]. When prison officials maliciously and

sadistically use force to cause harm, contemporary standards of decency

always are violated. See Whitley,[] supra, 475 U.S., at 327, 106 S.Ct., at

1088. This is true whether or not significant injury is evident. Otherwise,

the Eighth Amendment would permit any physical punishment, no matter

how diabolic or inhuman, inflicting less than some arbitrary quantity of

injury. Such a result would have been as unacceptable to the drafters of

the Eighth Amendment as it is today. See Estelle, supra, 429 U.S., at

102, 97 S.Ct., at 290 (proscribing torture and barbarous punishment was

"the primary concern of the drafters" of the Eighth Amendment); Wilkerson

v. Utah, 99 U.S. 130, 136, 25 L.Ed. 345 (1879) ("[I]t is safe to affirm that

punishments of torture ... and all others in the same line of unnecessary

cruelty, are forbidden by [the Eighth Amendment]").

That is not to say that every malevolent touch by a prison guard gives rise

to a federal cause of action. See Johnson v. Glick, 481 F.2d, at 1033

("Not every push or shove, even if it may later seem unnecessary in the

peace of a judge's chambers, violates a prisoner's constitutional rights").

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.' " Whitley, 475 U.S., at 327, 106 S.Ct., at

1088 (quoting Estelle, supra, 429 U.S., at 106, 97 S.Ct., at 292) (internal

quotation marks omitted).

503 U.S. at 9-10, 112 S.Ct. at 1000 (emphasis added).

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not be significant." Siglar, 112 F.3d at 193. "[T]he type of punishment, rather than

some arbitrary quantity of injury, may be relevant for Eighth Amendment Claims." 

Harris v. Chapman, 97 F.3d 499, 505 (11th Cir. 1996), cert. denied 520 U.S. 1257

(1997). See also United States v. LaVallee, 439 F.3d 670, 687-688 (10th Cir. 2006)

(rejecting the notion that "de minimis injury can serve as conclusive evidence that de

minimis force was used").

There is a factual dispute as to whether Defendant McCoy pushed or shoved

Plaintiff against the wall, and Plaintiff's version must be accepted as true on this motion. 

There is no dispute, however, that Defendant McCoy put Plaintiff into a custodial hold

until another officer arrived to escort Plaintiff to confinement, tightly gripping Plaintiff's

arm. Further, Plaintiff's affidavit does not clearly dispute Defendant's evidence, that

Plaintiff was yelling and causing a disruption in the medical department. But there is no

dispute that when Defendant arrived, he was told that Plaintiff had been disruptive and

thus thought that Plaintiff had been disorderly. This is shown by Plaintiff's question,

asking Defendant how he had been disorderly. It is undisputed that Defendant

encountered Plaintiff at the health clinic, with other health clinic staff present, including

females. It is undisputed that Plaintiff weighed 202 pounds. Finally, it is undisputed that

only de minimis injury occurred. Plaintiff said he felt a "sharp pain" when Defendant

McCoy grabbed him and "pushed him into the wall." The only result of that minimal

force was a scab, noted about a week later. Plaintiff said that he "noticed he was

bleeding" from his tricep where Defendant McCoy grabbed him, yet Plaintiff did not even

know himself that he had been scratched and was "bleeding" until arriving in the

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confinement cell, likely when he removed his jacket. There is no evidence that this was

anything more than a minor scratch that healed without the need for treatment.

In summary, it is assumed that Plaintiff was shoved against the wall after he was

handcuffed. Plaintiff has not described the degree of impact with the wall, and it cannot

be assumed that the impact was in any way painful or caused any injury. Plaintiff's only

complaint is that Defendant's grip on his right arm was painful and caused a minimal

scratch that bled somewhat. Plaintiff weighed 202 pounds, and when Defendant

encountered Plaintiff, Defendant thought that Plaintiff had just been disruptive in the

clinic. Considering the lack of serious injury, the lack of any injury or pain from the

shove, Plaintiff's weight and the danger he presented to clinic staff due to his weight,

and Defendant's belief that Plaintiff had been disorderly, a violation of the Eighth

Amendment has not been shown.

Accordingly, it is RECOMMENDED that Defendant McCoy's motion for summary

judgment, doc. 53, be GRANTED and judgment be entered in the Defendant's favor. 

IN CHAMBERS at Tallahassee, Florida, on October 20, 2010.

s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE 

NOTICE TO THE PARTIES

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

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14

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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