IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LEE CURTIS TATE, :

Plaintiff, :

vs. : CIVIL ACTION 09-0268-WS-M

OFFICER ROCKFORD, et al., :

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff, an Alabama prison inmate proceeding pro se and in

forma pauperis filed a Complaint under 42 U.S.C. § 1983. This

action was referred to the undersigned pursuant to 28 U.S.C. §

636(b)(1)(B) and Local Rule 72.2(c)(4), and is now before the

undersigned on Defendants’ Motion for Summary Judgment (Docs. 15,

16), and Plaintiff’s Response and Argument thereto (Doc. 28). 

After consideration of these pleadings, and for the reasons set

out below, it is recommended that Defendants’ Motion for Summary

Judgment be granted and that Plaintiff’s action be dismissed with

prejudice. 

I. FACTS

From its review of the record, the Court summarizes the

parties’ allegations which are material to the issues addressed

in this Report and Recommendation. On or about September 9,

2008, while incarcerated at Fountain Correctional Facility

(“Fountain”), Plaintiff claims that he was beaten by Defendant

Correctional Officer Kerry Rothchild. (Doc. 1 at 8). 

Specifically, Plaintiff states the following:

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1

In his Complaint, Plaintiff incorrectly refers to Defendant

Correctional Officer Kerry Rothchild as “Rockford.” (Doc. 1).

2

In his Complaint, Plaintiff incorrectly refers to Defendant

Correctional Lieutenant Steven Lane as “Lang.” (Doc. 1). 

2

On or about the 9th day of September, 2008, Tate

was within the Fountain Correctional Centers Dorm

G wherein he encountered defendant Rockford.1

Tate requested of Rockford to be allowed to go to

the shift office in order to obtain his prison

identification card. Rockford took his two arms

and pushed Tate in the chest and told him, nigger

that killer shit doesn’t impress me (sic). Tate

turned to place his radio down and Rockford with a

ball fist with a ring on one of his fingers, hit

Tate in the head and open a bleeding wound upon

his head (sic). Tate was beaten and thrown to the

floor, handcuffed and taken to the shift office.

Defendant Lt. Lang2 once in the shift office took

his shift office (sic) and was about to commence

beating Tate while handcuffed in the shift office. 

Captain Shirley Smith came in and asked Lang why

did he have her shift office. Lang told Captain

Smith repeatively (sic) that if you don’t get that

nigger out of here I’m going to kill him. Captain

Smith then ordered Lang to get out of the shift

office. Smith then ordered Lang to get out of the

shift office. Smith then told Rockford and other

John Doe defendant officer’s [Does] (sic) to take

Tate to the infirmary.

On the way to the infirmary Lang was in the

hallway and told Rockford and Does (sic), y’all

know what to do. Rockford and Does (sic) then

took the handcuffs and twisted them very hard

causing Tate severe pain and Tate attempted to

turn to complain. He was pushed into the wall,

turned around and Rockford and one of the Doe’s

took handcuffs that were held in his hand and beat

Tate up against his head causing open laceration

and blood pooring out of it (sic). 

Captain Smith heard the beating and ran out to

stop it and was thrown to the floor by Rockford

and the Does (sic). She got up and looked at

defendant Lt. Lang and asked him was he going to

do anything to help her stop the beating of Tate,

Lang just smiled (sic). Lang stood their (sic)

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In his Complaint, Plaintiff also names “John Doe -

Officer(s)” as Defendant(s) in this action. (Doc. 1 at 5). “As

a general matter, fictitious-party pleading is not permitted in

federal court.” Richardson v. Johnson, 598 F.3d 734, 738 (11th

3

and would not intervene. Captain Smith after

hollaring (sic) repeatively (sic) was finally able

to stop the maliciously (sic) beating of Tate and

have him taken to the infirmary where he was then

immediately transported to the hospital. 

(Doc. 1 at 8-9). 

In Count II of his Complaint, Plaintiff alleges a denial of

due process by Defendant English, a correctional lieutenant at

Holman Correctional Facility (“Holman”). Specifically, Plaintiff

states the following:

Plaintiff realleges Count I and avers the

following. Tate was given a disciplinary by

Rothchild for assault upon a correctional officer. 

Tate was denied procedure due process (sic) by

defendant Lt. English who was the hereing (sic)

officer. Tate upon being served the disciplinary

report requested witness Captain Smith of the

ADOC. When Tate was taken to the hearing he asked

Lt. English [English] where was his witness. Lt.

English told Tate to shut his damn mouth up he

wasn’t there to ask questions. Tate told English

if you’re not going to bring my witnesses here to

the hearing you can railroad me without me being

present. Take me back to my cell. 

(Doc. 1 at 9-10).

On May 12, 2009, Plaintiff filed the present § 1983 action,

asserting an Eighth Amendment excessive force claim against

Defendants Correctional Officer Kerry Rothchild and Correctional

Lieutenant Steven Lane, and alleging a Fourteenth Amendment due

process violation against Defendant Correctional Lieutenant James

English.3

 (Doc. 1). In his Complaint, Plaintiff claims that

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Cir. 2010). “We have created a limited exception to this rule

when plaintiff’s description of the defendant is so specific as

to be ‘at the very worst, surplusage.’” (Id.). In Plaintiff’s

Response to Defendants’ Motion for Summary Judgment, Plaintiff

identifies Correctional Officers Travis Brown, Corey Sykes,

Timothy McCorvey, and Antywon Madison as additional defendants,

presumably the “John Doe officers” referenced in Plaintiff’s

Complaint. The determination of whether or not to allow

substitution of these officers into this lawsuit is not

necessary, however, as this Court has determined that Plaintiff

has failed to show a constitutional violation. 

4

Defendant Rothchild violated his Eighth Amendment rights by using

excessive force against him during two altercations at Fountain

on September 9, 2008, and further that Defendant Lane witnessed

and failed to intervene in said altercations. (Id. at 5, 8-9). 

Plaintiff also complains that Defendant English, a lieutenant at

Holman Correctional Facility, violated his due process rights

when English, as the hearing officer, found Plaintiff guilty of a

disciplinary related to the incident. (Id. at 5, 9-11). 

Plaintiff seeks compensatory damages in the amount of $75,000,

punitive damages in the amount of $250,000, and an order vacating

the disciplinary report from his record. (Id. at 10).

In their Answer filed on December 11, 2009, Defendants deny

Plaintiff’s allegations and assert the defenses of qualified,

absolute, discretionary function, and state agent immunity. 

(Doc. 15). Additionally, Defendants have provided the Court

extensive documentation of the records and reports generated in

connection with the reporting of and investigation of the

altercations which occurred on September 9, 2008. (Doc. 16, Exs.

A-O). 

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The Court notes that the inmate assisting Plaintiff in this

litigation has stated under oath that Plaintiff “has a quick and

violent temper based upon his low IQ, illiteracy, indigent

status, and when he’s unable to understand things.” (Doc. 20 at

4).

5

Defendant Correctional Officer Kerry Rothchild avers that on

September 9, 2008, as he was in the process of locking down the

G-block at Fountain at approximately 6 p.m., he was approached

aggressively by Plaintiff who stated that he needed to leave to

get his I.D. from Lieutenant Lane. (Doc. 16, Ex. 1 at 1-2). In

response, Defendant Rothchild ordered Plaintiff to remain in Gblock and advised Plaintiff that he would contact Lieutenant Lane

regarding the I.D. (Id. at 2). When Plaintiff stepped forward,

Defendant Rothchild extended his right arm and ordered Plaintiff

to step away from the grill gate. (Id.). However, Plaintiff

refused to step away, instead warning Officer Rothchild, “if you

touch me, I’m gonna fire your ass up.” (Id.). According to

Defendant Rothchild, Plaintiff then slapped down Defendant

Rothchild’s hand. (Id.). 

Meanwhile, according to Defendant Rothchild, an unidentified

inmate grabbed Plaintiff, advising Plaintiff that “you don’t want

to do that.” (Id.). However, Plaintiff “continued to be loud

and belligerent, yelling ‘I’ll kill your bitch ass.’” (Id.). 

Plaintiff continued to threaten to kill Officer Rothchild, and

also stated “when I put this knife in your ass.”4

 (Id.). 

Defendant Rothchild avers that he gave Plaintiff a loud verbal

order to be quiet and not to disrespect him. (Id.). Defendant

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Officer Rothchild states that Plaintiff then threw down his radio

and began to throw a punch at Rothchild. (Id. at 3). At this

point, Defendant Rothchild claims that he was forced to defend

himself by counter striking Plaintiff, who then fell to the

ground, pulling Rothchild on top of him. (Id.). In the process,

Plaintiff pulled off Officer Rothchild’s radio and all of the

buttons from his uniform shirt. (Id.). 

Officer Rothchild avers that he tried to hold Plaintiff on

the floor until backup arrived, and that Plaintiff became even

more aggressive, screaming “I’m going to kill you bitch,” while

beginning to get up and wrestle with Defendant Rothchild. (Id.). 

While fearing for his life and safety, Defendant Rothchild picked

Plaintiff up and attempted to break away from his grasp, but both

he and Plaintiff fell. (Id.). Subsequently, two unidentified

inmates pulled Defendant Rothchild from Plaintiff’s grasp,

pushing the officer out of G-block. (Id.). Once out of G-block,

Officer Rothchild states that he walked to the shift office to

report the incident. (Id.).

According to Officer Rothchild, approximately two minutes

after arriving at the shift office, Correctional Officer Timothy

McCorvey escorted Plaintiff into the shift office. As Plaintiff

entered the office, he began threatening to kill Rothchild, and

“anyone in blue.” (Id.). Subsequently, Correctional Captain

Shirley Smith entered the shift office, ordering Plaintiff to be

quiet and ordering Defendant Rothchild to stand at the back of

the shift office. (Id. at 3-4). Defendant Rothchild complied

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with the order, but Plaintiff continued to be aggressively loud

and disruptive, shouting threats toward Rothchild and anyone

associated with ADOC security. (Id. at 4). Captain Smith was

unable to interview Plaintiff, as he continued to be loud and

disruptive. 

Rothchild states that Captain Smith next ordered Officer

McCorvey to escort Plaintiff to Fountain’s Healthcare Unit to

receive medical treatment. (Id.). However, as Officer McCorvey

began to escort Plaintiff to the Healthcare Unit, Plaintiff

“snatched away” from Officer McCorvey in an aggressive manner. 

(Id.). Defendant Officer Rothchild avers that he and Captain

Smith exited the shift office in an attempt to assist Officer

McCorvey. (Id.). Officer Rothchild says that he observed

Plaintiff grab the legs of Captain Smith, knocking her to the

floor. Plaintiff then began to rise up as if to charge at

Captain Smith who was still on the floor, and Rothchild states

that he, in an attempt to stop Plaintiff’s forward progress,

attempted to kick Plaintiff. (Id.). Subsequently, at

approximately 6:12 p.m., Lieutenant Lane escorted Plaintiff to

the Healthcare Unit. (Id.). Officer Rothchild avers that

Plaintiff was never handcuffed in his presence. 

According to Captain Shirley Smith, on the date in question,

at 5:50 p.m., she instructed all security officers to begin

locking down Fountain because of bad weather. (Doc. 16, Ex. D). 

Captain Smith states that she became aware of a problem and then

observed Officer McCorvey restraining Plaintiff on the main hall

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in front of G-dorm. (Id. at 2). Captain Smith reported to the

shift office and observed Plaintiff and Officer Rothchild yelling

obscenities at each other, and threatening bodily harm to each

other. (Id. at 2-3). 

As Plaintiff began telling Captain Smith his version of the

incident, he referred to the officers as “these motherfuckers,”

and Captain Smith ordered Plaintiff to cease name calling and the

use of profanity. (Id. at 3). Officer Rothchild jumped from his

chair, and attempted to come forward, but Captain Smith ordered

him back. (Id.). Captain Smith recalls that Officer Travis

Brown grabbed Plaintiff around the neck, and Captain Smith pulled

him away from Plaintiff. (Id.). Officer Rothchild wanted

Plaintiff taken away from him. (Id.). 

Another inmate then approached Captain Smith, handing her

the security keys to G-dorm, which had apparently been dislodged

from Officer Rothchild’s uniform during the altercation. (Id.). 

Smith then immediately left the office and secured G-dorm. 

(Id.). When Captain Smith returned to the shift office, she

instructed Officer McCorvey to escort Plaintiff to the Healthcare

Unit for a medical assessment, and that for security reasons,

Plaintiff was escorted onto the main hall un-cuffed, due to the

main hall being populated with other inmates. (Id. at 4). 

From the shift office, Captain Smith states that she

observed Plaintiff, while being escorted along the main hall to

the Healthcare Unit, pull away from Officer McCorvey’s grasp. 

(Id.). According to Smith, Officer McCorvey pinned Plaintiff

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against the wall, and she ran to assist in restraining Plaintiff

by attempting to take him to the floor. (Id.). Captain Smith

was then hit from the rear and knocked to the floor by several

officers who came to assist, hurting her arm when she fell. 

(Id.). Captain Smith states that she observed Officers McCorvey,

Madison, Brown and Rothchild hitting Plaintiff with closed fists,

and that she attempted to get up but was knocked to the floor

again, as Plaintiff and the officers fell to the ground. (Id.). 

Captain Smith observed Officer Rothchild kick at Plaintiff with

his right leg, but does not know whether Rothchild made contact

with anyone. She states that Officer Rothchild fell to the

ground. (Id.).

Captain Smith avers that she yelled for the officers to stop

fighting with Plaintiff, as Plaintiff had stopped resisting, but

they did not immediately comply with her order. (Id. at 5). 

Captain Smith called for Lieutenant Steven Lane and Officer

Garyon Johnson to assist on the main hall. (Id.). She also

directed an officer to notify the wardens and captains of the

need to report to the institution. (Id.). Plaintiff was then

escorted by Lieutenant Lane and Officer James Murphy to the

Healthcare Unit for a medical assessment. (Id.). Captain Smith

attempted to interview Plaintiff in the Healthcare Unit, but he

refused to speak to her, only wanting to speak to the Warden. 

(Id.). Captain Smith was injured during this altercation, and

was transported by Warden Folks to Atmore Community Hospital,

where she was treated and released. (Id.). 

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Correctional Officer Timothy McCorvey has averred that on

September 9, 2008, he detained Plaintiff and escorted him to the

shift office. (Doc. 16, Ex. G at 2). Once in the shift office,

he and Captain Smith attempted to calm Plaintiff and Officer

Rothchild, who were exchanging words. (Id.). Officer McCorvey

began escorting Plaintiff, without handcuffs, to the Healthcare

Unit as instructed by Captain Smith, but as they were walking,

Plaintiff “snatched away” from his grasp and stated, “I’m was

tired of this shit, I’m going to start killing y’all

motherfuckers.” (Id. at 2, 3). According to Officer McCorvey,

as he attempted to calm Plaintiff, Plaintiff proceeded to become

more violent, pushing against Officer McCorvey. (Id. at 2).

Officer McCorvey avers that he tried to restrain Plaintiff

by forcing him to the floor, and that he held Plaintiff against

the floor until he “felt that the safety of his life was out of

harm’s way.” (Id.). Officer McCorvey states that he was hit

with a closed fist in the face and chest area several times by

Plaintiff, and further states that he hit Plaintiff back several

times, while trying to defend himself. (Id. at 3). 

According to Lieutenant Steven Lane, his first involvement

in this incident occurred when he entered the shift office and

observed Officer Rothchild’s shirt on the table, Officer

Rothchild standing in the back of the office, and Plaintiff being

restrained in the office. (Doc. 16, Ex. B at 2). Officer

Rothchild advised Lieutenant Lane that Plaintiff had ripped

Rothchild’s shirt off of him. (Id.). At this time, Captain

Shirley Smith was questioning Plaintiff, and Lieutenant Lane

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noticed that the hallway was becoming more congested with

inmates. (Id.). Lane left the shift office and began

instructing all inmates to report to their assigned dormitories. 

(Id.). 

As Lieutenant Lane was attempting to clear the area of

inmates, he turned and looked back down the hall and observed

Officer McCorvey with both hands around Plaintiff’s neck, pushing

Plaintiff against the wall. (Id.). Lane avers that he ran down

the hall, instructing McCorvey to let Plaintiff go. (Id.). 

Despite his instruction, as well as the instruction of Captain

Smith, Officer McCorvey did not release his grasp on Plaintiff. 

(Id. at 2-3). Lieutenant Lane states that he approached Officer

McCorvey and grabbed him around the upper chest area, yelling for

him to let go of Plaintiff. (Id. at 3). According to Lane,

Officer McCorvey did not release his grasp on Plaintiff. Lane

saw Captain Smith fall to the floor. (Id.). Another officer,

Correctional Officer Murphy was pulling Plaintiff in the opposite

direction, and they all fell to the floor on top of Officer

McCorvey’s back, including Lieutenant Lane. (Id.). Lane was

able to break Officer McCorvey’s grasp from Plaintiff, and

continued to restrain McCorvey when Officer Travis Brown began

hitting Plaintiff. (Id.). Plaintiff was punching and kicking

upwards. (Id.). 

Lieutenant Lane states that he released Officer McCorvey

when he saw Officer Rothchild attempt to kick Plaintiff, and Lane

instructed Officer Madison to restrain Officer Rothchild. (Id.). 

Subsequently, Lane avers that he escorted Plaintiff to the

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Healthcare Unit, without handcuffs, and without any further

incident. (Id.). According to Lieutenant Lane, Plaintiff was

handcuffed in the lobby of the Healthcare Unit. (Id. at 4). 

Lane then had Officer Garyon Johnson bring the evidence camera to

photograph Plaintiff prior to the medical staff cleaning his

injuries. (Id.). 

According to Lane, Plaintiff was very upset in the

examination room, stating, “I’m gonna kill all of you hoes as

soon as I get a chance. You better keep me in lock up until I

leave this bitch. Y’all are gonna pay for this shit. On my

Momma, I’m gonna kill one of you hoes.” (Id.). Looking directly

at Lieutenant Lane, Plaintiff stated, “[y]ou set me up. I

thought you was a man, you weak bitch. You stood around and let

them hoes kludge me out. That’s some weak shit. You gonna pay

for that shit on my Momma, I’m going to get everyone of them weak

bitches that put their hands on me.” (Id.). When advised to

calm down, Plaintiff responded, “[f]uck calm down, I’m gonna kill

one of you hoes!” (Id.). At that point, the examination camera

arrived, and photographs of Plaintiff’s injuries were taken. 

When asked if the nursing staff could go ahead with his medical

assessment, Plaintiff responded, “[t]hem nurses ain’t done

nothing to me. I’m not gonna hurt them. It’s y’all mother

fucking ass that gonna get it. Just as soon as I get a chance,

I’m gonna kill one of you hoes.” (Id.).

Lieutenant Lane avers that Officer McCorvey walked into the

Healthcare Unit, but was advised to leave, as Lane had enough

officers in the unit. (Id. at 5). As McCorvey turned to leave,

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Plaintiff yelled, “[a]ll you weak bitches are going to pay. I’m

gonna kill all your mammies when I get out.” When Officer

McCorvey yelled from the hallway for Plaintiff to shut up and

that Plaintiff “ain’t gonna do nothing but talk,” Plaintiff

replied, “[t]hat was some weak shit, Goldmouth, you gonna pay for

that shit.” (Id.).

Lane states that he and Officer Murphy remained with

Plaintiff in the examination room, until instructed by Warden

Ferrell to step out. (Id. at 6). Lane advised Plaintiff to calm

down so that the nurses could assess him. However, when Nurse

Turberville placed a thermometer in his mouth, Plaintiff grabbed

it and slammed it on the floor, smashing it to pieces. (Id.). 

Lieutenant Lane instructed the medical staff to leave the room,

advising Plaintiff that he would not get treatment if he could

not calm down. (Id. at 7). After the nursing staff concluded

their examination, Plaintiff was transported to Atmore Community

Hospital for further examination. Upon his return from the

hospital, Plaintiff’s property, medical file and institutional

file was placed on a van and transferred along with Plaintiff to

Holman Correctional Facility. (Id.). 

Additional information submitted by Defendants include the

affidavit of Correctional Officer Wesley Murphy who avers that he

witnessed Lieutenant Lane pulling Officer McCorvey by the chest,

attempting to pull McCorvey and Plaintiff apart. (Doc. 16, Ex. H

at 2). Officer Murphy states that he attempted to restrain

Plaintiff by grabbing him around his upper torso, and giving

Plaintiff several loud and clear verbal orders to stop resisting. 

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(Id.). However, according to Officer Murphy, Plaintiff continued

to resist. (Id.). Murphy says that he released his grasp on

Plaintiff as Plaintiff fell to the floor, but he then held

Plaintiff down to try and stop Plaintiff from fighting and

resisting. (Id.). Officer Murphy states that he released

Plaintiff when he heard Lieutenant Lane order him to do so. 

(Id.). Murphy then accompanied Lane in escorting Plaintiff to

the Healthcare Unit. (Id.). 

Prison records reflect that Plaintiff was examined in the

Healthcare Unit on September 9, 2008, at approximately 6:10 p.m.,

just moments following the incident. (Doc. 16, Ex. K at 16). 

The medical record reflects that Plaintiff reported that he

wanted to get his ID from Lieutenant Lane and that an officer had

pushed him. (Id.). Plaintiff advised medical personnel that he

told the officer that “he better get the ‘fxxx’ out of my face &

he pushed me & I fell into the bed - Thats how I cut my eye.” 

(Id.). Plaintiff also explained that he and the officer started

wrestling, that he was then taken to the shift office, and that

the officers jumped on him. (Id.). 

The medical record also indicates that Plaintiff was

screaming at the nurses and officers. (Id.). It was noted that

Plaintiff had a one inch laceration over his right eye, a onefourth inch laceration on the left side of his forehead, small

abrasions on his knees, a small cut in his left ear, a small cut

behind his left ear, and a small cut in the corner of his right

eye. A large swollen area was also observed under Plaintiff’s

right eye. (Id.). Plaintiff denied any loss of consciousness.

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(Id.). The medical staff cleaned Plaintiff’s wounds, and applied

steri-strips to two of the lacerations. (Id.).

Progress Notes prepared by two nurses involved in

Plaintiff’s medical treatment following the altercation reflect

Plaintiff’s use of profanity and numerous threats to kill the

officers. (Doc. 16, Ex. M at 1-2). According to the records,

when the nurses attempted to obtain Plaintiff’s vital signs, he

broke the thermometer by throwing it to the ground. (Id.). When

finally able to perform their assessment on Plaintiff, they

cleaned his wounds and administered Motrin 600mg to help with

swelling and pain. (Id.). Plaintiff was then transferred to the

ER at Atmore Community Hospital by Warden Ferrell, where

examinations, tests and x-rays revealed Plaintiff had suffered no

additional injuries or broken bones. (Id. at 3-16). 

Body chart reports were also prepared for each officer

involved in the altercation, with Officer Murphy, Officer Brown,

and Lieutenant Lane reporting no injuries. (Doc. 16, Ex. K at

19-26). Officer Rothchild’s record reflects a right hand injury,

a swollen right knee, and complaints of hand, back and knee pain. 

(Id. at 24). Officers Madison and Sykes reported neck and back

pain, respectively, and Officer McCorvey was experiencing pain in

his hand, as well as an abrasion on his right knee. (Id. at 20-

22). 

Defendants have also submitted a copy of the official

incident report, including statements made at the time by

Defendants Rothchild and Lane, as well as the additional officers

involved in the altercation. (Id. at 1-15). Additionally, a

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Specifically, Officer Rothchild was charged with “Failure

to follow supervisor’s instructions; non-compliance with policies

and procedures - 1st offense;” “Serious violations of rules,

policies, procedures, regulations, laws, or reasonable conduct

expectations - 1st offense;” “Abusive or misuse of authority - 1st

offense;” “Abusive or excessive physical force in dealing with

inmates - 1st offense.” (Doc. 16, Ex. N at 14). 

16

copy of the disciplinary report charging Plaintiff with “Assault

on DOC” has been filed with the Court, reflecting the violation

that Plaintiff was charged, as well as details regarding the

hearing. (Doc. 16, Ex. L at 1-7). Plaintiff was found guilty of

the violation, and ordered to 45 days of disciplinary

segregation, as well as 45 days loss of store, phone, and

visitation privileges. (Id. at 2). 

A full investigation into the facts of the altercations with

Plaintiff on September 9, 2008, was conducted by the

Investigation and Intelligence Division of the Alabama Department

of Corrections, with the investigator, Donnie Nunley, determining

that Officer Kerry Rothchild “did not use reasonable, necessary,

physical force.” (Doc. 16, Ex. N at 1). As a result of the

investigation, Correctional Officer Kerry Rothchild was charged

with violating ADOC Administrative Regulation 208, Employee

Standards of Conduct and Discipline.5

 (Id. at 14). 

An administrative hearing was held on June 2, 2009, in the

Warden’s Office at Fountain. (Id. at 13). Correctional Officer

Kerry Rothchild was found guilty as to certain violations and not

guilty as to others. Specifically, the hearing officer

determined that Officer Rothchild was guilty of failing to render

full, efficient, and industrious service; failing to respond

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In making these determinations, the hearing officer noted

that Officer Rothchild could have avoided an escalation in

violence by locking the cell gate and requesting assistance via

radio once he realized that Plaintiff was verbally threatening

and abusive toward authority. (Doc. 16, Ex. N at 19). It was

also noted that Officer Rothchild did not comply with the

instructions of his supervisor, and that he should not have

engaged in physical force in the dorm alone. (Id. at 20). 

Additionally, the hearing officer found that Officer Rothchild

admitted that he left the shift office after being told to remain

there by Captain Smith. (Id.).

7

Officer Rothchild was also found not guilty as to the

charges of abuse of authority attached to the use of a badge, and 

failing to cooperate with investigations. (Doc. 16, Ex. N at

20). 

17

promptly to directions and instructions of supervisor; failing to

observe all laws, rules and regulations; and failing to conduct

himself in a manner consistent with the maintenance of proper

security and welfare of the institution and of inmates under his

supervision.6 (Id. at 19-21). 

However, notably, as to the charge of using unnecessary

physical force, Officer Rothchild was found not guilty.7 (Id. at

20). According to the hearing officer, “[t]he use of force in

the dorm was reasonable to quell a disturbance and the officer

was alone in the cell.” (Id.). Furthermore, it was determined

that “[b]ased upon the incident report, investigative report, and

testimony, none of the witnesses testified that Officer Rothchild

actually hit or kicked Inmate Tate during the 2nd altercation in

the hall.” (Id.). 

On January 19, 2010, the Court ordered that Defendants’

Answer and Special Report be treated as a Motion for Summary

Judgment. (Doc. 19). On January 21, 2010, Plaintiff filed a

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Motion to Appoint Counsel (Doc. 20), which was denied by this

Court on February 1, 2010. (Doc. 21). In the Motion to Appoint

Counsel, fellow inmate James McConico, Jr., identifies himself as

the drafter of the pleadings in this action. (Doc. 20 at 2). 

Inmate McConico also submits a “Declaration” of his own in which

he states the following:

I have communicated with Tate. He has a quick and

violent temper based upon his low IQ, illiteracy,

indigent status and when he’s unable to understand

things. This has led to numerous arguments, which I

can no longer assist or subject myself to belittlement

by Tate. 

(Id. at 4). McConico signed this Declaration “under penalty of

perjury.” (Id.).

On February 26, 2010, Plaintiff appealed to United States

District Judge William H. Steele, who affirmed the denial of

Plaintiff’s Motion to Appoint Counsel on March 2, 2010. (Docs.

24, 25). Plaintiff filed his Response and Argument to

Defendants’ Motion for Summary Judgment on March 25, 2010. (Doc.

28). In his response, Plaintiff reaffirms his claims of Eighth

Amendment excessive force and due process against Defendants, and

identifies Correctional Officers Travis Brown, Corey Sykes,

Timothy McCorvey, and Antywon Madison as additional Defendants. 

(Doc. 28).

II. SUMMARY JUDGMENT STANDARD

In analyzing the propriety of a motion for summary judgment,

the Court begins with these basic principles. The Federal Rules

of Civil Procedure grant this Court authority under Rule 56 to

render “judgment as a matter of law” to a party who moves for

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summary judgment. “[S]ummary judgment is proper ‘if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact. . . .’” 

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.

R. Civ. P. 56(c)). 

The Court must view the evidence produced by “the nonmoving

party, and all factual inferences arising from it, in the light

most favorable to” that party. Barfield v. Brierton, 883 F.2d

923, 934 (11th Cir. 1989). However, the Court is only to “make

all reasonable inferences in favor of the party opposing summary

judgment...not to make all possible inferences in the nonmoving

party’s favor.” Torjagbo v. United States, 285 Fed. Appx. 615,

619 (11th Cir. 2008) (emphasis in original). 

Rule 56(e)(2) states that:

[w]hen a motion for summary judgment is

properly made and supported, an opposing

party may not rely merely on allegations or

denials in its own pleading; rather, its

response must-by affidavits or as otherwise

provided in this rule-set out specific facts

showing a genuine issue for trial. If the

opposing party does not so respond, summary

judgment should, if appropriate, be entered

against that party.

Fed. R. Civ. P. 56(e).

“[T]here is no issue for trial unless there is sufficient

evidence favoring the nonmoving party for a jury to return a

verdict for that party. . . . If the evidence is merely

colorable, . . . or is not significantly probative, . . . summary

judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477

Case 1:09-cv-00268-WS-M Document 29 Filed 05/27/10 Page 19 of 41
20

U.S. 242, 249-50 (1986) (internal citations omitted). “Summary

judgment is mandated where a party ‘fails to make a showing

sufficient to establish the existence of an element essential to

that party’s case, and on which that party will bear the burden

of proof at trial.’” Custom Mfg. & Eng’g, Inc. v. Midway Servs.,

Inc., 508 F.3d 641, 647 (11th Cir. 2007) (citations omitted).

In civil actions filed by inmates, although drawing “all

justifiable inferences in [the inmate’s] favor,” federal courts 

must distinguish between evidence of disputed

facts and disputed matters of professional

judgment. In respect to the latter, our

inferences must accord deference to the views

of prison authorities. Unless a prisoner can

point to sufficient evidence regarding such

issues of judgment to allow him to prevail on

the merits, he cannot prevail at the summary

judgment stage.

Beard v. Banks, 548 U.S. 521, 529-30 (2006) (internal citation

omitted). “‘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.”’” Scott v. Harris, 550 U.S. 372,

380 (2007) (quoting Matsushita Elec. Industrial Co. v. Zenith

Radio Corp., 475 U.S. 574, 586-87 (1986). 

III. DISCUSSION

As discussed above, Plaintiff seeks redress pursuant to 42

U.S.C. § 1983 for alleged constitutional deprivations arising

from a physical altercation between himself and Officer Kerry

Rothchild that occurred on September 9, 2008, in the G Dorm at

Fountain, another altercation involving numerous officers in the

hallway leading to the Healthcare Unit, and a corresponding

Case 1:09-cv-00268-WS-M Document 29 Filed 05/27/10 Page 20 of 41
8

Plaintiff does not state whether he is asserting his Eighth

Amendment claim against Defendants in their official or

individual capacities, or both. As state officers, Defendants

are entitled to absolute immunity from suit for damages in their

official capacity. See Harbert Int’l, Inc. v. James, 157 F.3d

1271, 1277 (11th Cir. 1998) (state officials sued in their

official capacities are protected from suit for damages under the

Eleventh Amendment). 

However, in Skrtich v. Thornton, 280 F.3d 1295, 1301 (11th

Cir. 2002), the Eleventh Circuit held that the defense of

qualified immunity is unavailable in a case such as this,

stating: “a defense of qualified immunity is not available in

cases alleging excessive force in violation of the Eighth

Amendment, because the use of force ‘maliciously and sadistically

to cause harm’ is clearly established to be a violation of the

Constitution. . . .” See also Johnson v. Breeden, 280 F.3d 1308,

1321 (11th Cir. 2002) (“[I]t is clearly established that all

infliction of excessive force on a prisoner sadistically and

maliciously for the very purpose of causing harm and which does

cause harm violates the Cruel and Unusual Punishment Clause. So,

where this type of constitutional violation is established there

is no room for qualified immunity.”). The only question, then,

is whether Plaintiff has alleged facts sufficient to survive a

motion for summary judgment. “If he has done so, that is the end

of the inquiry.” Skrtich, 280 F.3d at 1301. 

21

disciplinary charge for which Plaintiff was found guilty for

assaulting an officer. (Doc. 1). Plaintiff claims that

Correctional Officer Kerry Rothchild, and other officers, used

excessive force in restraining him and beating him. (Doc. 1 at

8-10). Defendants deny the use of excessive force and assert the

defenses of absolute, discretionary function, state agent, and

qualified immunity.8 

Section 1983 provides in pertinent part that: 

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State or Territory or the District of

Columbia, subjects, or causes to be

subjected, any citizen of the United States

or other person within the jurisdiction

thereof to the deprivation of any rights,

privileges, or immunities secured by the

Constitution and laws, shall be liable to the

Case 1:09-cv-00268-WS-M Document 29 Filed 05/27/10 Page 21 of 41
22

party injured in an action at law, suit in

equity, or other proper proceeding for

redress. . . . 

42 U.S.C. § 1983 (1994). 

In addressing Plaintiff’s claims brought under §1983, the

Court begins its analysis “by identifying the specific

constitutional right allegedly infringed....” Graham v. Connor,

490 U.S. 386, 394 (1989). Plaintiff claims that he has suffered

a violation of his Eighth Amendment right to be protected from

cruel and unusual punishment, as well as a violation of his right

to due process of law. 

A. Excessive Force

The Eighth Amendment, which attaches “after conviction and

sentence,” protects incarcerated prisoners, like Plaintiff, from

punishment that is “cruel and unusual.” Graham, 490 U.S. at 392

n.6, 394. Specifically, the Eighth Amendment “prohibits the

unnecessary and wanton infliction of pain, . . . the infliction

of pain totally without penological justification. . . , [and]

the infliction of punishment grossly disproportionate to the

severity of the offense.” Ort v. White, 813 F.2d 318, 321 (11th

Cir. 1987) (citing Rhodes v. Chapman, 452 U.S. 337, 346 (1981)).

In order to establish an Eighth Amendment claim against

Defendants, Plaintiff must prove both an objective and subjective

component. That is, Plaintiff must show that the alleged

wrongdoing was objectively “harmful enough” to establish a

constitutional violation and that Defendants “act[ed] with a

sufficiently culpable state of mind,” i.e., that they acted

“maliciously and sadistically to cause harm.” Hudson v.

Case 1:09-cv-00268-WS-M Document 29 Filed 05/27/10 Page 22 of 41
23

McMillian, 503 U.S. 1, 7-8 (1992). 

In Hudson, the Supreme Court recognized that, whenever

guards use force to keep order, they “must balance the need ‘to

maintain or restore discipline’ through force against the risk of

injury to inmates.” Hudson, 503 U.S. at 6 (quoting Whitley v.

Albers, 475 U.S. 312, 321-22 (1986)). Thus, “the core judicial

inquiry is . . . whether force was applied in a good-faith effort

to maintain or restore discipline, or maliciously and

sadistically to cause harm.” Id. at 7. In making this

determination, the Court considers 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) (citing

Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007). “When

considering these factors, we ‘give a wide range of deference to

prison officials acting to preserve discipline and security,

including when considering decisions made at the scene of a

disturbance.’” Fennell, 559 F.3d at 1217 (quoting Cockrell, 510

F.3d at 1311) (internal quotation marks, alterations, and

citation omitted). “We examine the facts as reasonably perceived

by [the officer] on the basis of the facts known to him at the

time.” Id. (citing Whitley v. Albers, 475 U.S. 312, 321 (1986). 

Considering the evidence in the light most favorable to

Case 1:09-cv-00268-WS-M Document 29 Filed 05/27/10 Page 23 of 41
24

Plaintiff, the question is whether a jury could reasonably

conclude that Defendants violated Plaintiff’s rights under the

Eighth Amendment. Under the circumstances of this case,

Plaintiff’s allegations fail to establish a constitutional

violation. 

1. G-Dorm Altercation

It is undisputed that Plaintiff and Correctional Officer

Kerry Rothchild were involved in a physical altercation in

Fountain’s G-Dorm, which Officer Rothchild was attempting to lock

down on September 9, 2008. (Doc. 1, Doc. 16, Ex. A, Doc. 28 at

15). It is further undisputed that the physical confrontation

between Officer Rothchild and Plaintiff occurred in G-Dorm, with

Officer Rothchild being the only officer in the area filled with

inmates. (Doc. 16, Doc. 28). Plaintiff admits that he

approached Officer Rothchild “about going to get [his] I.D.

card,” and claims that Officer Rothchild “start to pushed me.” 

(Doc. 28 at 15). Plaintiff also acknowledges “[t]hats when I

pushed his hand back.” (Id.). Subsequently, a struggle between

the two ensued which the evidence reflects resulted in Officer

Rothchild’s uniform shirt being ripped, as well the loss of

Rothchild’s radio and security keys for G-Dorm. (Doc. 16, Ex. A). 

It was only later that an unidentified inmate returned the keys

to Captain Smith in the shift office. (Id., Doc. 16, Ex. D). 

Although Plaintiff only acknowledges “pushing” Officer

Rothchild’s hand, the evidence clearly reflects that Officer

Rothchild’s uniform shirt was torn, bloodied, and that his radio

Case 1:09-cv-00268-WS-M Document 29 Filed 05/27/10 Page 24 of 41
25

and security keys were stripped from his body. (Doc. 16, Exs. A,

B, D, G, Doc. 28). Officer Rothchild has averred that during the

confrontation with Plaintiff, Plaintiff was aggressively yelling

threats that he would kill Rothchild. (Doc. 16, Ex. A). That

Plaintiff was yelling obscenities and threats throughout the

evening of September 9, 2008, is verified by numerous witnesses

including other officers and the nurses in the Healthcare Unit. 

(Doc. 16, Exs. B, D, G, M). The physical altercation ended when

Officer Rothchild was pushed out of G-Dorm by another inmate, and

Rothchild walked directly to the shift office. (Doc. 16, Ex. A).

The Court notes that ADOC investigator Donnie Nunley

concluded that Correctional Officer Rothchild “did not use

reasonable, necessary, physical force.” (Doc. 16, Ex. N at 1,

10). However, following an administrative hearing which included

testimony from Mr. Nunley, Captain Shirley Smith, Lieutenant

Steven Lane, Officer Rothchild, as well as other officers, it

was determined that Rothchild had not used excessive force

against Plaintiff. (Id. at 20-21). 

While the determination of the Alabama Department of

Corrections or even the opinion of its investigator may be a

consideration in determining whether Defendant Rothchild’s

actions were in violation of the Eighth Amendment, it does not

answer the question. In Fennell v. Gilstrap, 559 F.3d 1212 (11th

Cir. 2009), the Eleventh Circuit held that a plaintiff failed to

show that a jailer’s use of force violated the Fourteenth

Amendment, despite the fact that the Bartow County Sheriff’s

Case 1:09-cv-00268-WS-M Document 29 Filed 05/27/10 Page 25 of 41
26

Office, “after an internal investigation, concluded that [the

jailer’s] use of force was both excessive and unnecessary.” Id.

at 1217. The Court noted that the conclusion of the sheriff’s

office, “even if correct, does not answer the question of whether

[the jailer] maliciously and sadistically used force to cause

[plaintiff] harm, and thus violated [plaintiff’s] Fourteenth

Amendment rights.” Id.

To determine whether there has been a constitutional

violation, the Court must assess the factors enumerated above,

just as the Eleventh Circuit did in Fennell. In assessing these

factors, specifically, the threat reasonably perceived by

Defendant Rothchild, the need for the use of force, and the

extent of the injury to Plaintiff, it is evident that the

disruptive behavior of Plaintiff created a chaotic and dangerous

situation which undermined the authority and control of Officer

Rothchild, and placed Officer Rothchild, as well as the other

inmates, in danger. 

The Plaintiff himself admits that he was seeking to leave

the dorm to retrieve his prison I.D., and also that he pushed

Officer Rothchild’s hand. (Doc. 28 at 15). Moreover, the

evidence in the record reflects that a violent altercation

occurred, resulting in Officer Rothchild’s shirt being torn and

his security keys being stripped from his body. (Doc. 16, Ex.

A). Clearly, this altercation, occurring in the dorm in the

presence of numerous other inmates, created a dangerous situation

for not only Officer Rothchild, but also for the other inmates,

Case 1:09-cv-00268-WS-M Document 29 Filed 05/27/10 Page 26 of 41
27

correctional officers, and even Plaintiff himself. Furthermore,

there has been no indication that Defendant Rothchild’s motive in

attempting to restrain Plaintiff was anything other than a good

faith effort to end Plaintiff’s disruptive and violent outburst

and restore discipline and control. 

With respect to the amount of force used by Defendant

Rothchild, the Court is mindful that, while an inmate must be

protected from the “‘unnecessary and wanton infliction of pain’

by prison officials,” prison officials must maintain order and

discipline “in an often dangerous and unruly environment.” Ort

v. White, 813 F.2d 318, 321-22 (11th Cir. 1987). Thus, prison

officials must be extended deference “in acting to insure the

proper administration, safety and security of a penal

institution.” Id. at 322. 

“‘The infliction of pain in the course of a prison security

measure, therefore, does not amount to cruel and unusual

punishment simply because it may appear in retrospect that the

degree of force authorized or applied for security purposes was

unreasonable, and hence unnecessary in the strict sense.’” Id. at

323 (citations omitted). Additionally, the Court “examine(s) the

facts as reasonably perceived by [Rothchild] on the basis of the

facts known to him at the time.” Fennell, 559 F.3d at 1217. 

With these considerations in mind, the Court finds that the

force used by Defendant Rothchild in attempting to restrain

Plaintiff was applied for the purpose of restoring order and was

not, in any event, excessive. Defendant’s restraint of Plaintiff

Case 1:09-cv-00268-WS-M Document 29 Filed 05/27/10 Page 27 of 41
9

“Pursuant to Eleventh Circuit Rule 36-2, unpublished

opinions are not considered binding precedent, but may be cited

as persuasive authority.” Lanier Constr., Inc. v. Carbone Props.

of Mobile, LLC, 253 Fed. Appx. 861, 865, 2007 WL 3307384, *3

(11th Cir. 2007).

28

ended a threatening situation, which as the Court has noted, was

a danger not only to Officer Rothchild, but also to the other

correctional officers, inmates, and Plaintiff himself. Moreover,

following his restraint, the record clearly reflects that

Plaintiff was escorted straight to the Healthcare Unit, where he

was provided medical treatment. (Doc. 16, Exs. K, M). 

Considering the extent of injury suffered, the Court is

mindful that inherent in the protection afforded by the Eighth

Amendment is the principle that “not ‘every malevolent touch by a

prison guard gives rise to a federal cause of action.’” Clark v.

Johnson, 2000 WL 1568337, *12 (S.D. Ala. 2000) (unpublished)9

(quoting Hudson, 503 U.S. at 9-10). Indeed, “‘[n]ot 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.’”

Hudson, 503 U.S. at 9 (citations omitted). 

The objective component of an Eighth Amendment excessive

force claim “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.’”

Hudson, 503 U.S. at 9-10 (quoting Whitley v. Albers, 475 U.S.

312, 327 (1986)). 

While the Supreme Court in Hudson did not define “de minimis

Case 1:09-cv-00268-WS-M Document 29 Filed 05/27/10 Page 28 of 41
29

use of force,” it did hold that neither “serious” nor

“significant” injury is required to satisfy the objective

component of an Eighth Amendment claim, nor is any arbitrary

quantum of injury an absolute requirement of an excessive force

claim, apparently out of concerns that certain forms of torture

are capable of inflicting extreme pain without leaving any mark

or tangible injury. Id. at 9. (“Otherwise, the Eighth Amendment

would permit any physical punishment, no matter how diabolic or

inhuman, inflicting less than some arbitrary quantity of

injury.”). 

Recently, the Supreme Court noted that “injury and

force...are only imperfectly correlated, and it is the latter

that ultimately counts. An inmate who is gratuitously beaten by

guards does not lose his ability to pursue an excessive force

claim merely because he has the good fortune to escape without

serious injury.” Wilkins v. Gaddy, __ U.S. __, 130 S. Ct. 1175,

1178-79, __ L. Ed. 2d __, 2010 WL 596513, *3 (February 22, 2010).

“This is not to say that the ‘absence of serious injury’ is

irrelevant to the Eighth Amendment inquiry.” Id. at 1178 (citing

Hudson, 503 U.S. at 7). “[T]he extent of injury suffered by an

inmate is one factor that may suggest ‘whether the use of force

could plausibly have been thought necessary’ in a particular

situation.” Id. (quoting Whitley, 475 U.S. at 321). 

In the present action, there are no allegations of torture

designed to inflict extreme pain without leaving tangible injury

or conduct that otherwise is so egregious that one could

Case 1:09-cv-00268-WS-M Document 29 Filed 05/27/10 Page 29 of 41
30

reasonably call it repugnant to the conscience of mankind. 

Therefore, if Plaintiff suffered only de minimis injuries, that

would be an important factor in determining whether more than de

minimis force was used.

Plaintiff’s health record indicates that he suffered a one

inch laceration over his right eye, a one-fourth inch laceration

on the left side of his forehead, small abrasions on his knees, a

small cut in his left ear, a small cut behind his left ear, and a

small cut in the corner of his right eye. A large swollen area

was also observed under Plaintiff’s right eye. (Doc. 16, Ex. K

at 16). Plaintiff denied any loss of consciousness. (Id.). 

Treatment consisted of cleansing Plaintiff’s wounds, and applying

steri-strips to two of the lacerations. (Id.). Motrin was given

to Plaintiff for pain. Following his examination in Fountain’s

Healthcare Unit, Plaintiff was transported to a local hospital

where he was administered numerous tests and x-rays, reflecting

no broken bones or additional injuries. (Id., Ex. M). 

In his Complaint, Plaintiff makes no allegations of any

significant, lasting ill effects from the altercation, nor does

he claim that he ever requested additional medical treatment for

his minor injuries. (Doc. 1). Indeed, the record in this action

is devoid of evidence of lasting injury to Plaintiff resulting

from any altercation. 

While the Court is aware that, even in the absence of

serious or significant injury, a plaintiff can establish a

Case 1:09-cv-00268-WS-M Document 29 Filed 05/27/10 Page 30 of 41
10In determining whether the extent of Plaintiff’s alleged

injuries indicates the use of excessive force, the Court finds

instructive the types of injuries which have been held to be

insufficient to support excessive force claims under the Eighth

Amendment, such as: a scratch on inmate’s side from a

correctional officer pushing, shoving, and hitting him in an

effort to force inmate to comply with an order to pick up his hoe

and get back to work, Walker v. Thames, 2001 WL 394911, * 6 (S.D.

Ala. 2001) (unpublished); scratches on plaintiff’s elbow, bump

and one-half inch skin tear behind the ear, abrasion on the

shoulder, and jaw pain from correctional officer pushing

plaintiff into a glass window while taking him to a holding cell,

Lanier v. Fralick, 2000 WL 1844679, *1-2, 5-6 (S.D. Ala. 2000)

(unpublished); blow to the forehead with a baton, resulting in no

bruising or swelling, Clark, 2000 WL 1568337, *18-19; a sore,

bruised ear lasting three days, Siglar v. Hightower, 112 F.3d

191, 193 (5th Cir. 1997); bruises on a prisoner’s back from being

shoved into a door frame, DeWalt v. Carter, 224 F.3d 607, 620

(7th Cir. 2000); lacerations, bruises, cuts, and swelling as a

result of a guard hitting plaintiff’s hand with a plastic box

when plaintiff reached through a trap in the door of his cell,

White v. Matti, 58 Fed. Appx. 636, 638 (7th Cir. 2002)

(unpublished); pain, swelling, and bruising from a guard closing

a cuffport door on a prisoner’s hand, Outlaw v. Newkirk, 259 F.3d

833, 839-40 (7th Cir. 2001); a bruised shoulder from being shoved

into a wall, Markiewicz v. Washington, 175 F.3d 1020, *1 (7th

Cir. 1999) (unpublished); a 1.5 inch scratch on the back of the

hand from handcuffs, Schoka v. Swinney, 53 F.3d 340, *1 (9th Cir.

1995) (unpublished); and daily headaches, not requiring

treatment, from being hit with a water bucket, Lunsford v.

Bennett, 17 F.3d 1574, 1582 (7th Cir. 1994).

On the other hand, the following types of injuries have been

held to be sufficient to support excessive force claims: injury

to an inmate’s back from guards snapping inmate’s head back with

a towel, slapping inmate twice in the face, and kicking inmate,

Harris v. Chapman, 97 F.3d 499, 506 (11th Cir. 1996); cuts,

scrapes and contusions to the face, head, and body from a group

beating, Gomez v. Chandler, 163 F.3d 921, 924-25 (5th Cir. 1999);

31

constitutional claim based on excessive force, Defendant

Rothchild’s actions in this case, as described by Plaintiff, do

not involve diabolic or inhuman torture designed to inflict

extreme pain without leaving any mark or tangible injury, nor are

they otherwise so egregious that one could reasonably call them

repugnant to the conscience of mankind.10 

Case 1:09-cv-00268-WS-M Document 29 Filed 05/27/10 Page 31 of 41
a broken finger, Escobar v. Zavaras, 149 F.3d 1190, *3 (10th Cir.

1998) (unpublished); and permanent scarring and numbness from

handcuffs, Davidson v. Flynn, 32 F.3d 27, 29 n.1 (2d Cir. 1994).

32

 Assuming, as Plaintiff alleges, that he was beaten by

Officer Rothchild in G-Dorm, his injuries were de minimis and

simply do not support his claim that he was subjected to anything

other than de minimis force, which in this instance, considering

all other factors, is insufficient to establish a constitutional

violation under the Eighth Amendment. In light of the undisputed

altercation between Plaintiff and Officer Rothchild, Plaintiff’s

injuries are certainly consistent with the necessary use of

restrained force by Defendant, not force “grossly

disproportionate to the severity of the offense.” Ort, 813 F.2d

at 321. 

2. Hallway Altercation

The second altercation on which Plaintiff is basing his

excessive force claim occurred in the main hallway, while

Plaintiff was being escorted to the Healthcare Unit. Captain

Smith ordered Officer McCorvey to escort Plaintiff to the

Healthcare Unit following the altercation between Plaintiff and

Officer Rothchild in G-Dorm. (Doc. 16, Ex. A at 3, Ex. D at 4,

Ex. G at 2). The evidence in the record consistently and clearly

reflects that Plaintiff was escorted without handcuffs because of

the number of inmates out in the hallway. (Doc. 16, Ex. A at 4,

Ex. B at 4, Ex. D at 4, Ex. G at 3, Ex. H at 2, Ex. I at 2, Ex. J

at 2). 

Further, the record reflects that once Officer McCorvey

Case 1:09-cv-00268-WS-M Document 29 Filed 05/27/10 Page 32 of 41
33

escorted Plaintiff from the shift office into the hallway,

Plaintiff broke away from McCorvey, thus beginning the second

altercation of the evening. (Doc. 16, Ex. A at 4, Ex. D at 4,

Ex. E at 1, Ex. G at 2). Officer McCorvey began attempting to

restrain Plaintiff, who was angry and yelling threats,

specifically stating “I’m was tired of this shit, I’m going to

start killing y’all motherfuckers.” (Doc. 16, Ex. G at 2). 

Lieutenant Lane, Captain Smith, Officer Rothchild, Officer

Madison, Officer Brown, Officer Sykes, Officer Murphy, and

Officer Johnson each had to assist in restraining Plaintiff and

the officers and calming the situation. Plaintiff was then

escorted by Lieutenant Lane and Officer Murphy to the Healthcare

Unit, where Plaintiff continued to yell and curse, and continued

to be violent even while the medical staff began his examination. 

(Doc. 16, Exs. B, M). Plaintiff’s allegation that the officers

“jumped” him for no reason is simply not supported by the record. 

Again, in assessing the factors to determine whether actions

by Defendants Rothchild and Lane as well as other involved

officers violated Plaintiff’s right against cruel and unusual

punishment, the Court looks first to the threat reasonably

perceived by the officers. The record reflects that Plaintiff

was being escorted to the Healthcare Unit, without handcuffs,

down a hallway populated with inmates. (Doc. 16, Exs. A, B, D,

G, H, I, J). Further, it is undisputed that Plaintiff had been,

and was continuing to yell obscenities and threats against the

officers. (Doc. 16, Exs. A, B, D, G). According to Officer

Case 1:09-cv-00268-WS-M Document 29 Filed 05/27/10 Page 33 of 41
34

Corey Sykes, he heard a “loud commotion in the hallway.” (Doc.

16, Ex. F at 1). The evidence reflects that Plaintiff pulled

away from Officer McCorvey, creating a dangerous situation for

the officers and inmates as well. As a result of Plaintiff’s

disruptive and threatening behavior, there was a need for force

by the officers to gain control of and end what was clearly a

chaotic and dangerous situation in the main hallway of Fountain. 

Specifically regarding Defendant Rothchild’s involvement in

the hallway altercation, Rothchild averred that he left the shift

office to help restrain Plaintiff when he witnessed Plaintiff

pull away from Officer McCorvey. (Doc. 16, Ex. A at 4). Officer

Rothchild admits that he attempted to kick Plaintiff when

Rothchild witnessed Plaintiff begin to rise up as if he was about

to charge Captain Smith, who had been forced to the floor during

the struggle. (Id.). However, there has been no indication that

Defendant Rothchild’s motive in attempting to restrain Plaintiff

was anything other than a good faith effort to end Plaintiff’s

disruptive and violent outburst and restore discipline and

control. 

Moreover, Plaintiff’s injuries do not reflect excessive

force administered maliciously and sadistically. Plaintiff’s

minor injuries are more indicative of subdued force, force

necessary only to end the chaotic altercation. The Court is

mindful that prison officials must be extended deference “in

acting to insure the proper administration, safety and security

of a penal institution.” Ort v. White, 813 F.2d 318, 322 (11th

Case 1:09-cv-00268-WS-M Document 29 Filed 05/27/10 Page 34 of 41
35

Cir. 1987). Additionally, the Court “examine(s) the facts as

reasonably perceived by [Rothchild] on the basis of the facts

known to him at the time.” Fennell v. Gilstrap, 559 F.3d 1212,

1217 (11th Cir. 2009). 

With these considerations in mind, the Court finds that the

force used by Defendant Rothchild in attempting to restrain

Plaintiff was applied for the purpose of restoring order and was

not, in any event, excessive. The actions of Defendant

Rothchild, Defendant Lane, and the other officers ended a

threatening situation, which notably, was a danger to all

officers and inmates in the area, and to Plaintiff himself. 

Moreover, following his restraint, the record clearly

reflects that Plaintiff was escorted straight to the Healthcare

Unit, where he was examined and treated, and then further

transferred to the Atmore Community Hospital for x-rays and

additional examination. The fact that medical treatment was

immediately given, which Plaintiff does not dispute, “‘temper[ed]

the severity of [the] forceful response,’ and makes it less

likely that [the defendants were] acting sadistically instead of

in good faith.” Cockrell v.Sparks, 510 F.3d 1307, 1313 (11th

Cir. 2007) (internal citation omitted). 

As the United States Supreme Court recently noted, “the

extent of injury suffered by an inmate is one factor that may

suggest ‘whether the use of force could plausibly have been

thought necessary’ in a particular situation.” Wilkins v. Gaddy,

__ U.S. __, 130 S. Ct. 1175, 1178-79, __ L. Ed. 2d __, 2010 WL

Case 1:09-cv-00268-WS-M Document 29 Filed 05/27/10 Page 35 of 41
36

596513, *3 (February 22, 2010). Although Plaintiff suffered a

few initial cuts and bruises, Plaintiff has made no allegations

of any significant, lasting ill effects from the altercation. 

(Doc. 1). Indeed, the record in this action is devoid of

evidence of lasting injury to Plaintiff resulting from any

altercation. 

 Assuming, as Plaintiff alleges, that he was “jumped on” by

officers in the hallway, his injuries were de minimis and simply

do not support his claim that he was subjected to anything other

than de minimis force, which in this instance, considering all

other factors including the need to restore order and control, is

insufficient to establish a constitutional violation under the

Eighth Amendment. In light of the altercation between Plaintiff

and the officers when Plaintiff pulled away from Officer McCorvey

in the hallway, Plaintiff’s minor injuries are certainly

consistent with the necessary use of restrained force by

Defendants, not force “grossly disproportionate to the severity

of the offense.” Ort, 813 F.2d at 321.

There is no support in the record for Plaintiff’s allegation

that he was unjustifiedly attacked by the various officers,

including Defendant Rothchild, during the altercation in either

the G-Dorm or the hallway. To the contrary, the evidence

reflects a dangerous, chaotic situation provoked by Plaintiff,

who in the words of his own fellow inmate “has a quick and

violent temper.” (Doc. 20 at 4). 

Regarding Defendant Steven Lane, Plaintiff does not contend

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37

that Lane was physically involved in the altercation, but instead

that the lieutenant stood and watched, instructing the officers

to hit Plaintiff. (Doc. 1 at 9). However, after reviewing all

of the documents in the record, including the incident report,

disciplinary charge, ADOC investigatory report, witness

statements, and each of the affidavits filed by the security

staff involved in this altercation, the Court is of the opinion

that the evidence does not support Plaintiff’s allegation. 

“When 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). 

The court may disregard “visible fiction” where the opposing

party’s “version of events is so utterly discredited by the

record that no reasonable jury could have believed him.” Id. at

380-381. 

Furthermore, Plaintiff has failed to show a constitutional

violation regarding the altercations, both in G-Dorm and the

hallway, therefore, Plaintiff’s claim against Lieutenant Lane,

even if believable, would fail. Plaintiff’s Eighth Amendment

claims fail as a matter of law. 

B. Due Process

Plaintiff also contends that his Fourteenth Amendment right

to due process has been violated. (Doc. 1 at 9-10). As a result

of the altercation with Officer Rothchild in G-Dorm, Plaintiff

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38

was charged with Assault on DOC, and Plaintiff requested that

Captain Smith appear as a witness on his behalf. (Doc. 16, Ex. L

at 1). Defendant Officer James English conducted the hearing on

October 7, 2008, but Plaintiff refused to attend. (Id. at 1-4). 

Although Plaintiff complains that he refused to attend because

his witness, Captain Smith, was not present, the Court notes to

the contrary that Captain Smith was present at the hearing, and

that she testified that she had no knowledge of the altercation

between Officer Rothchild and Plaintiff, as she was not present

at that time. (Id. at 3). Plaintiff was found guilty of the

charge, and was given 45 days disciplinary segregation and 45

days loss of store, phone and visitation privileges. (Id. at 2). 

In order to assert a Fourteenth Amendment due process 

claim, Plaintiff must have been deprived of “life, liberty, or

property.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974); U.S.

Const. amend. XIV, § 1 (providing, in part: “[N]or shall any

State deprive any person of life, liberty, or property, without

due process of law...”). In this action, the Court assumes that

Plaintiff is alleging a loss of liberty as a result of

confinement to disciplinary segregation. 

However, an inmate must have a protected liberty interest in

order for due process to attach. Gray v. Board of Regents of

Univ. System of Ga., 150 F.3d 1347 (11th Cir. 1998). Whether a

prisoner has a liberty interest in receiving due process when he

is disciplined or has a change in his housing is governed by the

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39

Supreme Court’s decision in Sandin v. Conner, 515 U.S. 472, 487

(1995). The Sandin Court held that there is no right inherent in

the Constitution, nor is there a state-created liberty interest,

to be free from disciplinary segregation. The Court found that

placement in disciplinary segregation as a form of punishment was

not a "dramatic departure" from the ordinary conditions of

incarceration and “did not present the type of atypical,

significant deprivation in which a State might conceivably create

a liberty interest.” Id. at 485-86. The Court determined that

mere confinement to disciplinary segregation was a type of

discipline that should be expected by an inmate as an incident to

his criminal sentence. Id. 

Thus, under Sandin, Plaintiff has no protected liberty

interest regarding his 45 days of disciplinary segregation. Id. 

Therefore, Plaintiff’s due process claim fails as a matter of

law. 

 IV. CONCLUSION

If a party “fails to make a showing sufficient to establish

the existence of an element essential to that party’s case, and

on which the party will bear the burden of proof at trial,” Rule

56(c) mandates that summary judgment be entered against the

nonmovant. Celotex Corp., 477 U.S. at 322. “No material issues

can be in dispute where the plaintiff’s evidence fails to

establish a constitutional violation.” Bennett v. Parker, 898

F.2d 1530, 1534 (11th Cir. 1990). Therefore, since no

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11 Effective December 1, 2009, the time for filing written

objections was extended to “14 days after being served with a

copy of the recommended disposition[.]” Fed. R. Civ. P.

72(b)(2).

40

constitutional violation has been established, Defendants’ Motion

for Summary Judgment is due to be granted.

Based on the foregoing, it is recommended that the Motion

for Summary Judgment of Defendants Correctional Officer Kerry

Rothchild, Lieutenant Steven Lane, and Lieutenant James English

be granted (Docs. 15, 16), that Plaintiff’s action be dismissed

with prejudice, and that judgment be entered in favor of

Defendants on all claims.

MAGISTRATE JUDGE’ S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within fourteen days of the date of service of

this document, file specific written objections with the clerk of

court. Failure to do so will bar a de novo determination by the

district judge of anything in the recommendation and will bar an

attack, on appeal, of the factual findings of the magistrate judge.

See 28 U.S.C. § 636(b)(1)(c); Lewis v. Smith, 855 F.2d 736, 738

(11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir.

Unit B, 1982)(en banc). The procedure for challenging the findings

and recommendations of the magistrate judge is set out in more

detail in SD ALA LR 72.4 (June 1, 1997), which provides that:

A party may object to a recommendation entered by a magistrate

judge in a dispositive matter, that is, a matter excepted by

28 U.S.C. § 636(b)(1)(A), by filing a “Statement of Objection

to Magistrate Judge’s Recommendation” within ten11 days after

being served with a copy of the recommendation, unless a

different time is established by order. The statement of

objection shall specify those portions of the recommendation

to which objection is made and the basis for the objection.

The objecting party shall submit to the district judge, at the

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41

time of filing the objection, a brief setting forth the

party’s arguments that the magistrate judge’s recommendation

should be reviewed de novo and a different disposition made.

It is insufficient to submit only a copy of the original brief

submitted to the magistrate judge, although a copy of the

original brief may be submitted or referred to and

incorporated into the brief in support of the objection.

Failure to submit a brief in support of the objection may be

deemed an abandonment of the objection.

A magistrate judge’s recommendation cannot be appealed to a

Court of Appeals; only the district judge’s order or judgment can

be appealed.

2. Transcript (applicable where proceedings tape recorded).

Pursuant to 28 U.S.C. § 1915 and Fed. R. Civ. P. 72(b), the

magistrate judge finds that the tapes and original records in this

action are adequate for purposes of review. Any party planning to

object to this recommendation, but unable to pay the fee for a

transcript, is advised that a judicial determination that

transcription is necessary is required before the United States

will pay the cost of the transcript.

DONE this 26th day of May, 2010.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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