[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-12049

Non-Argument Calendar

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D.C. Docket No. 3:10-cv-00081-TJC-JBT

MICHAEL ANTWON HOWARD,

 Plaintiff-Appellant,

versus

JACQUEZ MEMNON,

Correctional Officer, Union Correctional Institution,

JAMES JOHNS,

Classification Officer, Union Correctional Institution,

JOSEPH ALLEN,

Lieutenant Officer, Union Correctional Institution,

SGT. CROSBY,

Correctional Officer, Union Correctional Institution,

LT. NEWELL,

Correctional Officer, Union Correctional Institution, et al.,

 Defendants-Appellees.

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Appeal from the United States District Court

for the Middle District of Florida

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(July 15, 2014)

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Before MARCUS, PRYOR and MARTIN, Circuit Judges.

PER CURIAM: 

Michael Howard, a state prisoner proceeding pro se, appeals the district 

court’s grant of summary judgment in favor of several prison officials, and its 

dismissal of his remaining claims against prison officials as frivolous, in his 42 

U.S.C. § 1983 civil rights action alleging violations under the Eighth and 

Fourteenth Amendments. On appeal, Howard argues that the district court erred 

in: (1) granting summary judgment in favor of Lieutenant Robert Newell and 

Sergeant Anthony Crosby concerning Howard’s claim of excessive use of force in 

connection with a cell extraction; (2) granting summary judgment in favor of Dr. 

Julian Aviles when Howard established each element of a medical indifference 

claim; (3) granting summary judgment in favor of Officer Jacques Memnon1

concerning the falsified disciplinary report claim, and in favor of Supervisor 

Michael Davis, Officer James Johns, and Lieutenant Joseph Allen concerning the 

due process claim related to their review of the disciplinary report; and (4) 

dismissing as frivolous his claim of excessive force against Dr. Cecilia Trivino, his 

claim of deliberate indifference against Lt. Newell, his claim of falsifying reports 

against Nurse Payne, and his claim of excessive force against Nurse Christine 

Green. After careful review, we affirm.

 1 We use the spelling of the defendants’ names provided by the defendants, where 

applicable. We also note that for some defendants, the plaintiff did not provide first names.

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We review de novo a district court’s grant of a motion for summary 

judgment, viewing the evidence in the light most favorable to the nonmovant.

Arrington v. Cobb County, 139 F.3d 865, 871 (11th Cir. 1998). We review a 

district court’s sua sponte dismissal based on frivolity under 28 U.S.C. § 1915A(b) 

for abuse of discretion. Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008).

First, we find no merit to Howard’s claim that the district court erred in 

granting summary judgment in favor of Lieutenant Newell and Sergeant Crosby. 

Summary judgment is proper when “there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 

56(a). The substantive law controls which facts are material and which are 

irrelevant. Raney v. Vinson Guard Service, Inc., 120 F.3d 1192, 1196 (11th Cir. 

1997). Typically, the nonmoving party may not rest upon only the allegations of 

his pleadings, but must set forth specific facts showing there is a genuine issue for 

trial. Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir. 1990). A pro se

plaintiff’s complaint, however, if verified under 28 U.S.C. § 1746, is equivalent to 

an affidavit, and thus may be viewed as evidence. See Murrell v. Bennett, 615 

F.2d 306, 310 n.5 (5th Cir. 1980).2 Nevertheless, “[a]n affidavit or declaration 

used to support or oppose a motion must be made on personal knowledge.” 

Fed.R.Civ.P. 56 (c)(4). “[A]ffidavits based, in part, upon information and belief, 

 2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted as 

binding precedent all Fifth Circuit decisions issued before October 1, 1981.

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rather than personal knowledge, are insufficient to withstand a motion for 

summary judgment.” Ellis v. England, 432 F.3d 1321, 1327 (11th Cir. 2005).

As we’ve emphasized, “[w]hen the moving party has carried its burden 

under Rule 56[], its opponent must do more than simply show that there is some 

metaphysical doubt as to the material facts . . . Where 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.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 

U.S. 574, 586-87 (1986). “[T]he mere existence of some alleged factual dispute 

between the parties will not defeat an otherwise properly supported motion for 

summary judgment; the requirement is that there be no genuine issue of material

fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). 

Unsupported, conclusory allegations that a plaintiff suffered a constitutionally 

cognizant injury are insufficient to withstand a motion for summary judgment. See

Bennett v. Parker, 898 F.2d 1530, 1532-34 (11th Cir. 1990) (discounting inmate’s 

claim as a conclusory allegation of serious injury that was unsupported by any 

physical evidence, medical records, or the corroborating testimony of witnesses). 

Moreover, “[w]hen opposing parties tell two different stories, one of which is 

blatantly contradicted by the record, so that no reasonable jury could believe it, a 

court should not adopt that version of the facts for purposes of ruling on a motion 

for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

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In an excessive force case, the core inquiry is “whether force was applied in 

a good-faith effort to maintain or restore discipline, or maliciously and sadistically 

to cause harm.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (quotation omitted). In 

determining whether force was applied maliciously and sadistically to cause harm, 

courts consider the following factors: “a) the need for the application of force; b) 

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

extent of the injury inflicted upon the prisoner; d) the extent of the threat to the 

safety of staff and inmates; and e) any efforts made to temper the severity of a 

forceful response.” Fennell v. Gilstrap, 559 F.3d 1212, 1217 (11th Cir. 2009). 

Courts examine the facts as reasonably perceived by the defendants on the basis of 

the facts known to them at the time. Id.

Here, the district court did not err in granting summary judgment in favor of 

Lt. Newell and Sgt. Crosby regarding Howard’s claim of excessive use of force. 

The defendants presented evidence that force was applied in a good faith effort to 

maintain or restore discipline, and that the post-force exam showed that he 

received only a superficial abrasion on his back. Because Howard’s accounting of 

the incident was blatantly contradicted by the record, so that no reasonable jury 

could have believed it, we cannot adopt that version of the facts for purposes of 

summary judgment. Scott, 550 U.S. at 380. Additionally, Howard’s claim that no 

member of the extraction team alleged resistance is incorrect. Sgt. Crosby’s report 

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stated that “Howard refused . . . orders to stop turning and twisting his upper 

torso” and that he continued resisting during the post-use-of-force physical. 

We are also unpersuaded by Howard’s claim that the district court erred in 

granting summary judgment in favor of Dr. Aviles. “Supervisory officials are not 

liable under section 1983 on the basis of respondeat superior or vicarious liability.” 

Belcher v. City of Foley, Ala., 30 F.3d 1390, 1396 (11th Cir. 1994) (quotation 

omitted). Under § 1983, liability attaches to a supervisor only if the supervisor 

personally participated in the events, or if there is a causal connection between the 

action of the supervising official and the alleged constitutional deprivation. Brown 

v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990).

In this case, the district court did not err in granting summary judgment in 

favor of Dr. Aviles because there is no respondeat superior liability under § 1983. 

Belcher, 30 F.3d at 1396. The record reveals no evidence indicating that Dr. 

Aviles personally participated in the medical care provided to Howard, or that 

there was a causal connection between his actions and the alleged constitutional 

deprivation. Brown, 906 F.2d at 671.

Third, we reject Howard’s claim that the district court erred granting 

summary judgment in favor of Officer Memnon, Supervisor Davis, Officer Johns, 

and Lieutenant Allen. The due process requirements in prison disciplinary 

proceedings include advance written notice of the charge, the opportunity to call 

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witnesses and present documentary evidence, and a written statement of the 

evidence and reasons for the disciplinary action. Wolff v. McDonnell, 418 U.S. 

539, 563-66 (1974). In addition, “government officials performing discretionary 

functions generally are shielded 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, 818 (1982). To claim qualified immunity, a defendant must first show he was 

performing a discretionary function. Mercado v. City of Orlando, 407 F.3d 1152, 

1156 (11th Cir. 2005). The burden then shifts to the plaintiff to show that: (1) the 

defendant violated a constitutional right; and (2) the right was clearly established at 

the time of the violation. Id.

Here, the district court did not err in granting summary judgment in favor of 

Officer Memnon, Supervisor Davis, Officer Johns, and Lt. Allen, because Howard 

received sufficient due process in connection with his disciplinary report. Indeed, 

he does not dispute on appeal that he received advance written notice of the charge 

against him, he appeared at the hearing, and he was provided a written basis for the 

guilty finding. Wolff, 418 U.S. at 563-66. While Howard claimed that Officer 

Memnon falsified the report, Officer Hill corroborated Officer Memnon’s report by 

attesting that he found a weapon in Howard’s cell. Moreover, it is notable that the 

disciplinary process ultimately worked in Howard’s favor, as the report was 

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overturned due to a technical error. As for Officer Johns and Lt. Allen, they were 

entitled to qualified immunity because there is no dispute they were performing a 

discretionary function in processing disciplinary infractions, and, as we’ve 

discussed above, Howard did not show that any defendant violated a constitutional 

right, much less a clearly established one. Mercado, 407 F.3d at 1156.

We are also unconvinced by Howard’s argument that the district court 

abused its discretion in dismissing as frivolous his excessive force claims against 

Dr. Trivino and Nurse Green, his deliberate indifference claim against Lt. Newell, 

and his falsifying reports claim against Nurse Payne. A court must dismiss a claim 

at any time if it determines that the claim is frivolous, malicious, fails to state a 

claim upon which relief can be granted, or seeks monetary relief against a 

defendant who is immune from such relief. 28 U.S.C. § 1915A(b). At the same 

time, a court must hold a plaintiff’s pro se allegations to less stringent standards 

than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 

(1972). “A claim is frivolous if it is without arguable merit either in law or fact,”

and if it appears that a plaintiff has little or no chance of success. Bilal v. Driver, 

251 F.3d 1346, 1349 (11th Cir. 2001); Bingham v. Thomas, 654 F.3d 1171, 1176-

77 (11th Cir. 2011) (holding that a frivolity determination was not an abuse of 

discretion where the allegations were bare or conclusory). “To state a claim under 

42 U.S.C. § 1983, a plaintiff must allege that (1) the defendant deprived him of a 

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right secured under the United States Constitution or federal law and (2) such 

deprivation occurred under color of state law.” Richardson v. Johnson, 598 F.3d 

734, 737 (11th Cir. 2010). 

A court should give leave to amend freely “when justice so requires.” 

Fed.R.Civ.P. 15(a). Even when the plaintiff did not seek leave to amend until after 

final judgment or when the plaintiff never sought leave to amend, where a more 

carefully drafted pleading might state a claim, a plaintiff must be given at least one 

chance to amend the complaint before the district court dismisses the action with 

prejudice. Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991), overruled in part by

Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 & n.1 (11th Cir. 

2002) (en banc). If a more carefully drafted complaint could not state a claim, then 

dismissal is proper. Id. In Wagner, we said we did not decide the issue with 

respect to pro se parties. Id. at 542 n.1 (“In this opinion, we decide and intimate 

nothing about a party proceeding pro se.”). Leave to amend may not be 

appropriate for certain reasons, such as undue delay. McKinley v. Kaplan, 177 

F.3d 1253, 1258 (11th Cir. 1999).

Here, the district court did not abuse its discretion in dismissing as frivolous 

the claims against Lt. Newell, Nurse Payne, Nurse Green, and Dr. Trivino for 

giving Howard a forced injection, nor do any factual statements in the complaint 

support a claim that all of the defendants violated Howard’s rights to equal 

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protection and due process of law. Among other things, Howard has failed to point 

to any clearly established law that any of the defendants have violated, which 

means that any claims he alleges would be barred by qualified immunity. 

Mercado, 407 F.3d at 1156. Furthermore, it would be futile for Howard to try to 

amend, as the record reflected that the claims were clearly without merit, and there 

is no indication that a more carefully drafted pleading might have stated a claim. 

AFFIRMED.

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