FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DECEMBER 20, 2007

THOMAS K. KAHN

CLERK

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-10984

________________________

D. C. Docket No. 05-00195-CV-RLV-4

THOMAS G. COCKRELL, 

Plaintiff-Appellant, 

versus 

ROBERT S. SPARKS, 

Sheriff, Polk County, Georgia, 

JAIL CORPORAL KENYON BALLEW, 

SERGEANT HENRY KING, III., 

 Defendants-Appellees, 

KEVIN REDDEN, 

Deputy Sheriff, Polk County, Georgia,

Individually and in his 

official capacity,

 Defendant. 

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

 (December 20, 2007)
 We will view the facts in the light most favorable to Cockrell, the non-moving party, as 1

we are required to do at this stage of the proceedings. See Shotz v. City of Plantation, Fla., 344

F.3d 1161, 1164 (11th Cir. 2003).

 We accept it as true that “Deputy King moved Plaintiff from cell 139 (the drunk tank) 2

to adjacent cell 138 in order to accommodate the inmate who attempted suicide” because this

statement was included in the defendants’ statement of undisputed material facts and Cockrell

did not object to it. Under local rules, the district court considers “each of the [party moving for

summary judgment]’s facts as admitted unless the respondent . . . directly refutes the movant’s

fact with concise responses supported by specific citations to evidence (including page or

paragraph number).” N.D. Ga. R. 56.1(B)(2)(a)(2)(i). For that reason, we do not accept as given

Cockrell’s contrary statement in his deposition. See Jones v. Gerwens, 874 F.2d 1534, 1537 n.3

(11th Cir. 1989) (treating a fact as conceded, under a local district court rule, when the party

2

Before BIRCH, CARNES and COX, Circuit Judges.

PER CURIAM:

This is an appeal from the district court’s grant of summary judgment to the

defendant, Deputy Henry King, on Thomas Cockrell’s excessive force claim

against King in his individual capacity. 

I.

On the evening of October 2, 2004, Cockrell was arrested for public

drunkenness and placed in the Polk County Jail’s “drunk tank.” While Cockrell 1

was there, an inmate in another cell attempted suicide. Jail policy requires that

inmates who attempt suicide be put in the drunk tank because there is nothing in it

with which they can hurt themselves. Deputy King, at that time a supervisor at the

Polk County Jail, moved Cockrell out of the drunk tank and into a neighboring cell

to make room for the other inmate. While King was seeing to the inmate who had 2
opposing summary judgment failed to object to the fact in the movant’s statement of undisputed

material facts). 

3

attempted suicide, Cockrell, still drunk, began banging on the door to his cell with

his shoe, shouting for a deputy to let him pay for a bond so that he could be

released. King opened Cockrell’s cell door, told him to “shut the hell up” and

gave Cockrell an open-hand shove. Cockrell fell, broke his hip and wrist, and

lacerated his ear. King and Deputy Kenyon Ballew, who was also on duty in the

jail at the time, immediately summoned medical attention for Cockrell, and he was

taken to the hospital that night. 

Cockrell filed a complaint asserting, among other state and federal claims, a

42 U.S.C. § 1983 excessive force claim against the Sheriff of Polk County and

Deputy Kevin Redden, whom he believed to be the deputy who shoved him, in

their official and individual capacities. During discovery, Cockrell realized that

Deputy King, not Redden, had shoved him. Cockrell then made a motion, which

the district court granted, to dismiss Redden and add King and Ballew as

defendants. Those two were served with the complaint, but the factual allegations

stated that Redden pushed Cockrell, making no mention of King and Ballew. 

The defendants then moved for summary judgment on various grounds,

including that the complaint failed to state a claim against Deputy King because it
4

still alleged that the excessive force had been used by Deputy Redden, not by

King. In response, Cockrell moved for leave to amend his complaint. In that

motion, he also abandoned all of his claims against the defendants with the

exception of the excessive force claim against King in his individual capacity. 

In a consolidated order, the district court denied the motion to amend as

futile and granted summary judgment to the defendants. As to all of the

defendants except Deputy King, the district court ruled that Cockrell had

abandoned his claims. The court granted summary judgment to King in his

individual capacity on the excessive force claim (the only claim Cockrell wanted

to assert against him) because the complaint made no allegations against him, and,

in the alternative, because shoving “a belligerent, drunk, yelling inmate while also

trying to see that a prisoner who had just attempted suicide was placed in a more

secure environment” did not violate the Constitution. 

Cockrell contests only the denial of his motion to amend and the grant of

summary judgment insofar as they involve his intended claim against King in his

individual capacity on the excessive force claim.

II.

We first address whether the district court erred in denying as futile

Cockrell’s motion to amend his complaint to name Deputy King instead of Deputy
5

Redden. Although we review a district court’s denial of a motion to amend only

for abuse of discretion, we review de novo a decision that a particular amendment

to the complaint would be futile. Harris v. Ivax Corp., 182 F.3d 799, 802 (11th

Cir. 1999). Leave to amend a complaint is futile when the complaint as amended

would still be properly dismissed or be immediately subject to summary judgment

for the defendant. See Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1263 (11th

Cir. 2004). Cockrell’s motion to amend was futile, and therefore properly denied,

only if King would be entitled to summary judgment on the merits of the claim if

the amendment were allowed. Because we conclude below that King would be 

entitled to summary judgment on the merits, the district court correctly held that

Cockrell’s motion to amend was futile.

III.

We review a district court’s grant of summary judgment using the same

legal standards that the district court was required to apply in its decision. 

Lancaster v. Monroe County, Ala., 116 F.3d 1419, 1424 (11th Cir. 1997).

Government action, including the use of force by prison guards, will only

violate substantive due process rights under the Fourteenth Amendment when it is

so egregious that it shocks the conscience. See Carr v. Tatangelo, 338 F.3d 1259,

1271 (11th Cir. 2003). In both Fourteenth and Eighth Amendment excessive force
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claims, whether the use of force violates an inmate’s constitutional rights

“ultimately turns on ‘whether force was applied in a good faith effort to maintain

or restore discipline or maliciously and sadistically for the very purpose of causing

harm.’” Whitley v. Albers, 475 U.S. 312, 320–21, 106 S. Ct. 1078, 1085 (1986)

(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)) (establishing the

standard for an Eighth Amendment excessive force claim); see Bozeman v. Orum,

422 F.3d 1265, 1271 (11th Cir. 2005) (applying the Whitley test in a Fourteenth

Amendment excessive force case). If force is used “maliciously and sadistically

for the very purpose of causing harm,” then it necessarily shocks the conscience. 

See Brown v. Smith, 813 F.2d 1187, 1188 (11th Cir. 1987) (stating that the Eighth

and Fourteenth Amendments give equivalent protections against excessive force). 

If not, then it does not. 

Under this standard, we look at “the need for the application of force; the

relationship between the need and the amount of force that was used; and the

extent of the injury inflicted upon the prisoner.” Id. (citing Whitley, 475 U.S. at

321, 106 S. Ct. at 1085). Additionally, we consider “the extent of the threat to the

safety of staff and inmates, as reasonably perceived by the responsible officials on

the basis of the facts known to them, and any efforts made to temper the severity

of a forceful response.” Whitley, 475 U.S. at 321, 106 S. Ct. at 1085. Not only
7

that, but we must also give a “wide range of deference to prison officials acting to

preserve discipline and security,” including when considering “[d]ecisions made at

the scene of a disturbance.” Bennett v. Parker, 898 F.2d 1530, 1533 (11th Cir.

1990). 

Applying that law, we conclude that, although it is a close question, Deputy

King is entitled to summary judgment on the merits. Cockrell was creating a

disturbance, and, given the need to relocate the inmate who had attempted suicide,

King legitimately needed to quiet Cockrell. It was not unreasonable for him to use

some force to do that. As we said in Bennett, “[t]he need for the use of force is

established by the undisputed evidence that [the inmate] created a disturbance. . . . 

Prison guards may use force when necessary to restore order and need not wait

until disturbances reach dangerous proportions before responding.” Id. The

amount of force conveyed by an open-handed push or shove is as near to the

minimum amount as an officer can employ, and it is not disproportionate to the

need to restore order when dealing with a drunk and boisterous inmate. In the

Bennett case we held that grabbing an inmate by the throat and pushing him

against the bars of his cell during an inmate count was not disproportionate to the

need to stop the inmate from shouting and demanding to be let out. Id. at 1531,

1534. The force used here and the occasion for it are similar to those in that case. 
8

Although in this case the extent of the injury was relatively extensive, this

factor alone is not dispositive. There is no way that Deputy King could have

foreseen that a simple push would result in as much injury as Cockrell

unfortunately suffered. That the severity of the injury could not have been

reasonably anticipated makes it less likely that King acted “maliciously and

sadistically for the very purpose of causing harm.” Whitley, 475 U.S. at 320–21,

106 S. Ct. at 1085 (quotation omitted). That the minimal forced was used to quiet

Cockrell to care for another inmate in need of medical attention, instead of for

some other reason, also weighs against a finding of excessive force. Finally, the

fact that King and Ballew immediately summoned medical assistance for Cockrell,

“temper[ed] the severity of [the] forceful response,” id., and makes it less likely

that either of them was acting sadistically instead of in good faith. 

Although threatening comments are circumstantial evidence of mental state 

that can be considered in determining the intent underlying the use of force,

Bozeman, 422 F.3d at 1272, the fact that Deputy King told Cockrell to “shut the

hell up” evidences a desire to restore order, not a wish to sadistically cause harm. 

After carefully considering all of the circumstances, as we are required to

do, we conclude that the unfortunate extent of Cockrell’s injuries, which resulted

from a push or shove by Deputy King, are not the result of force applied
9

maliciously and sadistically for the purpose of causing harm, but instead resulted

from force applied in a good faith effort to maintain or restore discipline in a

difficult situation. Whitley, 475 U.S. at 320–21, 106 S. Ct. at 1085. King’s

actions therefore do not shock the conscience. For that reason, the district court

did not err in denying Cockrell’s motion to amend as futile because King would

have been entitled to summary judgment on the claim against him if the

amendment were allowed. 

AFFIRMED.