IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

BOBBY SMITH, JR., :

 :

Plaintiff, :

 :

vs. : CIVIL ACTION 09-0448-CG-M

 :

GWENDOLYN GIVENS, 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. 11,

12) and Plaintiff’s Opposition thereto (Doc. 14). 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 June 11, 2009,

while incarcerated at Fountain Correctional Facility

(“Fountain”), Plaintiff claims that he was handcuffed and beaten

by Defendant Lieutenant Gwendolyn Givens and Correctional Officer

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Although somewhat unclear, it appears that the only two

Defendants in this action are Lieutenant Givens and Correctional

Officer Knight. (Doc. 1). Plaintiff actually only lists

Lieutenant Givens as a Defendant, however, he references actions

by Officer Knight in his factual allegations. While Plaintiff

does state the name “Jerry Ferrell” on the style of his

Complaint, he asserts no claims against Jerry Ferrell in the

Complaint. Plaintiff also identifies Correctional Officers

Timothy McCorvey, James Sellers, and someone by the name of

Williams as being involved with his transport to segregation. 

(Doc. 1 at 6). The Court does not consider Jerry Ferrell,

Officer Timothy McCorvey, Officer James Sellers, or “Williams” as

Defendants, as there have been no actual claims asserted against

these individuals. Furthermore, this issue is moot because even

if these individuals had been included as Defendants, Plaintiff

has failed to show a constitutional violation regarding this

incident. 

2

Harvey Knight, following a “scuffle” in the chow hall. (Doc. 1

at 4). Plaintiff alleges that Officers McCorvey, Sellers, and

Williams also participated in escorting him to segregation,

instead of the Health Care Unit for an examination.1 (Id. at 6). 

According to Plaintiff, there was a “scuffle in the chow

hall,” and he was handcuffed and beaten by Defendants Givens and

Knight. (Id. at 4). Plaintiff claims that Officer Knight was

“trash talking” to him, warning “wait til we get you into seg.” 

At the door, Plaintiff alleges that Officer Knight “kept trying

to push [his] head in the wall.” (Id.). Plaintiff complains

that he was taken to segregation instead of the Health Care Unit

for an examination. (Id.). Once in segregation, Plaintiff

contends that he was beaten by Defendants Givens and Knight, and

that when he fell to the ground, Defendant Knight continued

kicking him in the chest. (Id.). Plaintiff claims that

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Defendants “nearly beat [him] to death.” (Id. at 5).

 On July 21, 2009, Plaintiff filed the present § 1983 action,

asserting an Eighth Amendment claim against Defendants

Correctional Lieutenant Gwendolyn Givens and Correctional Officer

Harvey Knight. (Doc. 1). In his Complaint, Plaintiff claims

that Defendants Givens and Knight violated his Eighth Amendment

rights by using excessive force against him during the

altercation in Fountain’s dining hall on June 11, 2009. (Id. at

4-6). Plaintiff seeks monetary damages in the amount of $75,000,

as well as an order lowering Lieutenant Givens’ rank and

suspending Officers McCorvey, Knight, Sellers and Williams. (Id.

at 7).

In their Answer filed on February 8, 2010, Defendants Givens

and Knight deny Plaintiff’s allegations and assert the defenses

of qualified and sovereign immunity. (Doc. 11). Defendant

Gwendolyn Givens avers that while she was assisting with the

inmate population evening meal at Fountain on June 11, 2009, she

observed Plaintiff wrapping several corndogs in tissue paper. 

(Doc. 12, Ex. 1 at 2). After issuing several unheeded direct

orders to Plaintiff to either eat the corndogs or throw them

away, Defendant Givens attempted to remove the corndogs from the

table. (Id.). As Defendant Givens was attempting to remove the

corndogs from the table, Plaintiff grabbed Officer Givens’ wrist. 

(Id.). Officer Givens ordered Plaintiff to release her wrist,

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but instead Plaintiff rose from the table and “forcefully” pushed 

Officer Givens in the chest using both of his hands. (Id.). 

Officer Givens fell to the floor, requiring assistance to stand

up again. 

At Officer Givens’ request, an inmate alerted Correctional

Officer Timothy McCorvey, that she needed assistance in the

dining hall. (Id.). Subsequently, Correctional Officers

McCorvey, Sellers, and Knight reported to the dining hall and

helped to restrain Plaintiff from further assault on Officer

Gwendolyn Givens. (Id.). Despite Plaintiff’s continued

resistance, handcuffs were applied, and Plaintiff was escorted by

Officers Knight, Sellers, and Lieutenant Givens to the Health

Care Unit for medical treatment. (Id.).

Prison records reflect that Plaintiff was examined in the

Health Care Unit on June 11, 2009, at approximately 4:50 p.m.,

just moments following the incident. (Doc. 12, Ex. 3 at 10). 

Plaintiff reported to the medical staff that he “was sitting at

the table and an incident happened and they contained me.” 

(Id.). It was noted that Plaintiff had a one half inch

superficial abrasion on his right shoulder, a small scratch above

his lip, and a hematoma, and superficial laceration above his

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

(Id.). Plaintiff’s medical treatment consisted of cleansing the

wounds with water and applying a dressing. Plaintiff was advised

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to apply an ice pack to his hematoma that night, and released for

placement in segregation. (Id.).

A body chart documentation was also prepared for Defendant

Lieutenant Gwendolyn Givens, who advised the health care staff of

the attack by Plaintiff. It was noted that Defendant Givens had

sustained an abrasion on her right elbow, and she was released

back to work. (Id. at 11). Body charts were also prepared for

Officer James Sellers, Officer Harvey Knight, and Officer Timothy

McCorvey, with no injuries being noted for these officers. (Id.

at 12-14). 

An incident report was prepared by Defendant Correctional

Lieutenant Givens, detailing the incident on June 11, 2009,

occurring at 4:50 p.m. in Fountain’s dining hall. (Id. at 2-6). 

The incident report reflects Defendant Givens’ account of

Plaintiff’s grabbing her hand and then pushing her to the ground,

noting also that witnesses were Correctional Officers McCorvey,

Knight and Sellers. (Id.). 

According to the report, the incident occurred at 4:50 p.m.,

and Plaintiff was escorted to the Health Care Unit approximately

one minute later. (Id. at 3). The report, consistent with

Health Care Unit records, reflects that Lieutenant Givens was

medically assessed at approximately 5 p.m., followed by Officer

Sellers at 5:05 p.m., Officer Knight at 5:10 p.m., and Officer

McCorvey at 5:15 p.m. (Id.). Also a part of the incident report

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In his opposition to Defendants’ Motion for Summary

Judgment, Plaintiff also states that Warden Jerry Ferrell “lacked

proper control over Lt. Givens, Officer Knight, Officer Sellers,

Officer McCorvey due (sic) to the fact that they assaulted the

plaintiff while in handcuff restraints.” (Doc. 14 at 1-2). To

the extent that Plaintiff is attempting to assert a claim against

Warden Ferrell, Officer Knight, and Officer McCorvey, the Court

rejects these allegations as the time for amending and adding

claims to Plaintiff’s Complaint has passed. That being said,

Plaintiff’s claims would fail anyway as to these individuals, as

there has been no constitutional violation shown in this action 

6

were individual statements by Officers McCorvey, Knight and

Sellers detailing their account of the altercation. (Id.). The

report additionally contained a statement by Captain Richard

Hetrick, who investigated the incident, noting conversations with

two different inmates who witnessed the altercation. (Id. at 6). 

Each inmate, separately, advised Captain Hetrick that Plaintiff

had hit Lieutenant Givens and knocked her to the floor. (Id.). 

Inmate Miller also advised Captain Hetrick that he had assisted

Lieutenant Givens to her feet following the attack. (Id.). 

As a result of this incident, Plaintiff was charged with

Assault on a Person Associated with the ALDOC, Insubordination,

and Failure to Obey a Direct Order. (Id. at 15-32). Plaintiff

was found guilty of each of these three violations. (Id.). 

On February 11, 2010, the Court ordered that Defendants’

Answer and Special Report be treated as a Motion for Summary

Judgment. (Doc. 13). On February 23, 2010, Plaintiff filed a

response in opposition to Defendants’ motion, reasserting his

Eighth Amendment excessive force claim against Defendants.2 (Doc.

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(Doc. 14).

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

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) states that:

an adverse party [to a motion for summary

judgment] may not rest upon the mere

allegations or denials of the adverse party’s

pleading, but the adverse party’s response,

by affidavits or as otherwise provided in

this rule, must set forth specific facts

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showing that there is a genuine issue for

trial. If the adverse party does not so

respond, summary judgment, if appropriate,

shall be entered against the adverse party. 

Fed. R. Civ. P. 56(e); see also Celotex Corp., 477 U.S. at

325-27. 

“[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

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

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Plaintiff does not state whether he is asserting his Eighth

Amendment claim against Lieutenant Givens and Correctional

Officer Knight 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

9

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 an alleged constitutional deprivation arising

from a physical altercation between himself and Lieutenant Givens

and Officer Knight that occurred on June 11, 2009, in Fountain’s

dining hall. (Doc. 1). Plaintiff claims that Lieutenant Givens

and Correctional Officer Knight used excessive force in

restraining him with handcuffs, and “nearly beat[ing] [him] to

death.” (Doc. 1 at 4). Defendants deny the use of excessive

force and assert the defenses of sovereign and qualified

immunity.3 

Case 1:09-cv-00448-CG-M Document 15 Filed 04/08/10 Page 9 of 22
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. 

10

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

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 claim 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. 

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]

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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.

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 need for the application

of force, the relationship between that need and the amount of

force used, the threat reasonably perceived, any efforts made to

temper the severity of a forceful response, and the extent of

injury suffered. Hudson, 503 U.S. at 7 (citing Whitley, 475 U.S.

at 321).

Case 1:09-cv-00448-CG-M Document 15 Filed 04/08/10 Page 11 of 22
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Considering the evidence in the light most favorable to

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.

It is undisputed that Plaintiff physically attacked

Lieutenant Givens in the dining hall of Fountain, knocking her to

the ground in the presence of approximately 200 inmates. (Doc.

12, Exs. 1, 2, 3, 4). At Lieutenant Givens’ request, fellow

inmates called another correctional officer for help, and

assisted Defendant Givens to her feet. (Doc. 12, Ex. 1 at 1-2,

Ex. 3 at 6). Plaintiff complains that he was “jumped” in the

“chow hall” by Defendants Givens and Knight, as they were

attempting to restrain Plaintiff. (Doc. 1 at 4-6). Additionally,

contrary to the numerous detailed records maintained in

Plaintiff’s inmate file, Plaintiff complains that he was taken to

segregation, rather than being taken to the Health Care Unit for

a body chart. (Doc. 1 at 4-6). Although he makes no specific

allegation of physical injury in his Complaint, months later, in

his Opposition to Defendants’ Motion for Summary Judgment,

Plaintiff alleges that he suffered head and heel injuries. (Doc.

14). 

Case 1:09-cv-00448-CG-M Document 15 Filed 04/08/10 Page 12 of 22
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In assessing the factors enumerated above, specifically, the

threat reasonably perceived by Defendants, the need for the use

of force, and Defendants’ motive in using force, it is evident

that the disruptive behavior of Plaintiff created a chaotic and

dangerous situation which undermined the authority and control of

Lieutenant Givens, as well as the other correctional officers in

the area. The record reflects, with no objection from Plaintiff,

that Plaintiff openly disobeyed an order from Lieutenant Givens

and then forcefully hit her, knocking her to the floor. (Doc.

12, Ex. 1, Ex. 3). This incident occurred in Fountain’s dining

hall, in the presence of approximately 200 inmates. (Id. at 1). 

Clearly, this altercation caused by Plaintiff created a dangerous

situation for not only Lieutenant Givens, but also for the other

inmates, correctional officers, and even Plaintiff himself. 

There can be no question as to the need for force against

Plaintiff, and further, there has been no indication that

Defendants’ motive in restraining 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 Defendants, 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

Case 1:09-cv-00448-CG-M Document 15 Filed 04/08/10 Page 13 of 22
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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).

With these considerations in mind, the Court finds that the

force used by Defendants in restraining Plaintiff was applied for

the purpose of restoring order and was not, in any event,

excessive. Defendants’ restraint of Plaintiff ended a

threatening situation, which notably, was a danger not only to

Lieutenant Givens, 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 Health Care

Unit, where he, as well as Defendant Givens and the other

correctional officers involved, were each examined, as documented

by the body charts. (Doc. 12, Ex. 3 at 10-13). “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

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4

“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).

15

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. 

Considering the final factor, 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)4

 (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)). 

Case 1:09-cv-00448-CG-M Document 15 Filed 04/08/10 Page 15 of 22
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While the Supreme Court in Hudson did not define “de minimis

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). 

Case 1:09-cv-00448-CG-M Document 15 Filed 04/08/10 Page 16 of 22
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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

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

superficial abrasion, a small scratch above his lip, and a

hematoma and superficial laceration above his right eye. (Doc.

12, Ex. 3 at 10). Treatment consisted of cleansing with water,

and applying dressings. (Id.). Pain medication was not

necessary, nor was it requested by Plaintiff. Plaintiff was

released for placement in segregation within minutes of his

medical examination. (Id.). 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). In his

opposition to Defendants’ Motion for Summary Judgment, Plaintiff

makes a conclusory, self-serving allegation that he “sustained a

head injury” and that he “must have surgery on his Achilles heel”

as a result of the incident. (Doc. 14 at 2). 

Other than the one conclusory, and notably, delayed

allegation by Plaintiff regarding his “head injury” and “Achilles

Case 1:09-cv-00448-CG-M Document 15 Filed 04/08/10 Page 17 of 22
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In 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.

18

heel,” the record in this action is devoid of evidence of lasting

injury to Plaintiff resulting from this altercation. Plaintiff

did not even mention these alleged injuries until six months

after filing his Complaint, following Defendants’ argument to the

Court that Plaintiff had not suffered any lasting injury. (Doc.

12). Further, the Court finds significant the fact that

Plaintiff never complained of any injury to his feet or ankles at

the Health Care Unit immediately following the altercation, nor

was such an injury noted by the medical staff. Again, Plaintiff

was released after having his small wounds washed with water and

dressed. (Doc. 12, Ex. 3 at 10). 

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

serious or significant injury, a plaintiff can establish a

constitutional claim based on excessive force, Defendant Givens’

and Defendant Knight’s, as well as the other involved officers’ 

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.5

 

Case 1:09-cv-00448-CG-M Document 15 Filed 04/08/10 Page 18 of 22
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);

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).

19

Assuming, as Plaintiff alleges, that he was “beaten” while

being restrained following his attack on Lieutenant Givens, 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 Plaintiff’s undisputed attack on

Case 1:09-cv-00448-CG-M Document 15 Filed 04/08/10 Page 19 of 22
20

Lieutenant Givens, his 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. 

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

constitutional violation has been established, Defendants’ Motion

for Summary Judgment is due to be granted.

IV. CONCLUSION

Based on the foregoing, it is recommended that the Motion

for Summary Judgment of Defendants Lieutenant Gwendolyn Givens

and Correctional Officer Harvey Knight be granted (Docs. 11, 12),

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

Case 1:09-cv-00448-CG-M Document 15 Filed 04/08/10 Page 20 of 22
6 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).

21

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 ten6

 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

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.

Case 1:09-cv-00448-CG-M Document 15 Filed 04/08/10 Page 21 of 22
22

DONE this 8th day of April, 2010.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

Case 1:09-cv-00448-CG-M Document 15 Filed 04/08/10 Page 22 of 22