IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ZACHERY WILSON,

Plaintiff,

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:

:

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vs. : CIVIL ACTION 14-337-CB-M

:

EMILY WHITTLE, et al.,

Defendants.

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:

REPORT AND RECOMMENDATION

This action under 42 U.S.C. § 1983 brought by an 

Alabama prison inmate, Zachery Wilson, proceeding pro se 

and in forma pauperis, 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 Court on Plaintiff’s 

Complaint (Doc. 1), Defendants’ Answer and Special Report, 

(Docs. 22, 23), which the Court converted into a Motion for 

Summary Judgment. (Doc. 27). After careful consideration 

of the relevant pleadings and motion, and Plaintiff’s 

eyewitness statement, it is recommended that Defendants’ 

Motion for Summary Judgment be granted, and Plaintiff’s 

Eighth Amendment claims regarding excessive force and 

inadequate medical care be dismissed with prejudice. 

I. Fact and Proceedings

Plaintiff filed his § 1983 Complaint on July 21, 2014, 

alleging claims for Eighth Amendment conditions of 

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confinement, excessive force, medical care violations, 

supervisory liability, and Fourteenth Amendment due process 

violations. The claims for conditions of confinement, 

supervisory liability and due process were previously 

dismissed without prejudice as frivolous pursuant to 28 

U.S.C. §§ 1915A and 1915(e)(2)(B)(i), and process was 

thereafter issued on his excessive force and medical care 

claims. Those excessive force claims against Defendants 

Whittle, Franklin and Ezell, and the delayed, denied or 

inadequate medical care claim against Defendant Ezell have 

been fully briefed, and are ripe for consideration. Though 

the factual allegations were thoroughly set out in the 

previous report and recommendation (Doc. 7), the relevant 

facts are recapped below. 

The Court notes that, with their Special Report, 

Defendants submitted two videos of the incidents in 

question, which proved to be highly relevant in the 

analysis herein. The Court will consider Plaintiff’s 

version of the facts in the light most favorable to him up 

to the point in time where the videos begin. Thereafter, 

the Court will rely on the videos for a factual depiction, 

as the videos show exactly how Plaintiff’s own 

insubordinate, indignant and insulting behavior caused the 

situation and injuries for which he complains. 

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Plaintiff’s complaints stem from the six-hour period 

of 12:30 a.m. until 6:00 a.m., when the toilet in his 

segregation cell began to overflow “off and on with ‘FECES’ 

water, together with the cell toilet above Plaintiff’s 

cell!” (Doc. 1 at 4). Plaintiff notified a guard of the 

problem, and asked for “cleaning chemicals and utensils to 

properly sanitize [his] cell of the ‘raw sewage.’” (Id. at 

8). In the meantime, Officer Leggett (who is not a named 

defendant) opened the tray door to Plaintiff’s cell “to 

give Plaintiff a well need [sic] breath of fresh air!” 

(Id.). Officer Leggett left Plaintiff’s cell to retrieve a 

mop, but while he was gone, and while the tray door was 

open, Plaintiff tied socks (or some other type of fabric in 

strips) around the hinges of the tray door so the tray door 

could not be closed and latched. (Doc. 23 at 4). Officer 

Leggett gave Plaintiff several orders to remove the socks, 

but he refused. (Id.). Officer Leggett informed Defendant 

Whittle about Plaintiff’s refusal to remove the socks, and 

the two of them returned to Plaintiff’s cell to address the 

problem. (Id). Defendant Whittle informed Plaintiff that 

she would notify maintenance of the issue when they arrived 

at work, but that she was going to remove the socks 

Plaintiff had tied around the tray door, and close the tray 

door until they arrived. With his hands and arms sticking 

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out of the tray slot, Plaintiff became irate yelling, “You 

not removing sh*t!” (Doc. 23-7 at 2). 

The first video begins here, with Defendant Whittle 

approaching Plaintiff’s cell with “the cut down tool,” 

which is a small handheld tool with a hook-shaped end that 

presumably has a cutting edge. As Defendant Whittle tried

to cut the sock off the tray door hinges, Plaintiff stuck

his hands and arms in her way, deliberately placing his 

hands and arms in contact with the cut down tool. 

Defendant Whittle repeatedly, but respectfully, instructed

Plaintiff to “move your hands, move your arms. It’s going 

to cut your hands.” Plaintiff refused, and instead 

continued to place his hands and arms over the top of the 

hinges, and then stuck his fingers underneath the tray door 

so Defendant Whittle could not cut the socks from the 

bottom. Plaintiff then started yelling, “you gonna [sic] 

cut me!” Plaintiff slapped Defendant Whittle’s hand as she 

tried to continue cutting the sock, and he knocked a 

canister of SABRE red chemical agent from her hand and on 

to the floor. Defendant Whittle, without raising her voice 

or changing her tone, informed Plaintiff that he had just 

assaulted her and that it was recorded on the video camera. 

Plaintiff became extremely hostile yelling at Defendant 

Whittle saying, “you ain’t [sic] supposed to be around me 

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any g****** way! I done [sic] told you man. Look at all 

this d*mn sh*t water. That ain’t [sic] no mother-f*cking 

assault! You already mother-f*cking cut me man, you cut me 

twice!” By this point, Defendant Whittle successfully 

removed the sock from one hinge; only one hinge still had a 

sock tied to it, and Plaintiff would not move his arm from 

across it. Defendant Whittle continued to urge Plaintiff 

to move his arm, but Plaintiff became even more irate 

toward Officer Leggett who was nearby and filming the 

altercation. Plaintiff started pointing at Officer Leggett 

and yelling at him saying, “Hey Leggett. What did I tell 

you? What did I tell you man? All this mother-f*cking 

sh*t. Every time the man flushes his g****** toilet, man, 

this sh*t is coming up out [sic] my g****** toilet, man!”

Defendant Whittle told Plaintiff that the plumbing 

issue had nothing to do with his tray hole, and Plaintiff 

belligerently yelled, “yeah it do [sic]! Yeah the f*ck it 

do, man! . . . Hey, hey, listen! I done threatened this 

female twice. Get this female from around me man! Captain 

Howard told me she wasn’t supposed to be around me! She 

done cut my mother-f*cking hand with this g******* thing 

right here!” This malicious banter continued on until 

Defendant Whittle was finally able to remove all hindrances 

from the tray door hinges. 

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Though the socks were removed, Plaintiff refused to 

move his arms from tray hole so the door could be closed. 

Defendant Whittle continued asking Plaintiff to move his 

arms, but Plaintiff continued to exhibit hostile behavior 

by pulling a shampoo bottle out and trying to squirt what 

was presumed to be shampoo on Defendant Whittle. Defendant 

Whittle remained calm and continued to tell Plaintiff to 

move his arm, while gently pushing his hands out of the 

way. Plaintiff started slapping at Defendant Whittle’s 

hands, so Defendant Whittle administered a two (2) second 

burst of the chemical agent to Plaintiff’s facial area. 

The chemical agent hardly fazed Plaintiff as he began to 

taunt Defendant Whittle saying, “hit that arm! Hit it!”

Defendant Whittel issued another burst of the chemical 

agent and waited for Plaintiff to move his arm, which he 

finally did. Defendant closed the tray door and exited the 

cell area. 

Despite Plaintiff’s allegations that Defendant Whittle 

“maliciously whittled, snipped, and/or lacerated” him (Doc. 

30 at 4), the Court notes that at no point during the video 

is there visible blood on Plaintiff’s arms or hands, or the 

tray door where his arms and hands were resting. An 

Incident Report was filed, and an Investigative Report was 

conducted by Captain Darryl Fails, each of which directly 

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contradict Plaintiff’s version of the facts, indicating 

that Plaintiff’s own indignant, antagonistic, and selfdestructive behaviors caused any injury he may have 

received; and that Defendant Whittle “only used the amount 

of force [necessary] to gain control of the situation and 

get inmate Wilson to comply by utilizing her chemical 

agent. The force used is justified.” (Docs. 23-1, -2).

According to the Incident Report, and approximately

twenty minutes after Defendant Whittle exited Plaintiff’s 

cell area, Plaintiff was escorted by Defendant Franklin and 

Officer Madison to the health care unit for a medical 

assessment and decontamination. (Doc. 1 at 9). Plaintiff 

contends that on the way to the health care unit (“HCU”), 

Defendant Franklin cuffed Plaintiff to the back, then 

“started grabbing the chains of the handcuffs, yanking them 

upward very aggressively, almost over [Plaintiff’s head].” 

(Id.). Plaintiff states that he immediately felt agonizing 

and sharp pain to his right wrist as Defendant Franklin 

told Plaintiff that he should “beat yo maf***in ass chump!” 

(Id. at 10). 

Once in the HCU around 6:58 a.m., the nurse noted on 

Plaintiff’s body chart that he was “awake, alert, agitated 

[and] yelling at DOC.” (Doc. 23-6 at 2). The nurse also 

noted that Plaintiff presented with a “superficial 

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laceration to [left] middle finger. . . . No other injuries 

noted.” (Id.). Plaintiff was released to DOC with 

instructions to return to HCU if other problems occurred. 

(Id.). By this time, maintenance was in Plaintiff’s cell 

repairing the plumbing, so Plaintiff was escorted to the 

shower area for holding until the maintenance was complete. 

(Doc. 23-4 at 1). At 8:05 a.m., Officer Leggett observed 

Plaintiff “kick out the glass of the shower door. . . [and] 

stepped through the glass of out of the shower.” (Id.). 

Plaintiff was immediately ordered to stop kicking the glass 

and to step back in the shower, which he did. (Id.). 

Around 8:10 a.m., Plaintiff was verbally reprimanded for 

his behavior, and escorted back to his assigned cell (Id.), 

and “given cleaning supplies and utensils to properly 

sanitize his cell from the raw sewage.” (Doc. 1 at 9). 

 On the same day, around 9:25 a.m., Plaintiff 

returned to the HCU presenting with a cut on his arm. (Id. 

at 3). The nurse’s notes reflect a “superficial abrasion 

noted to [right] elbow apprx. 1⁄2 cm long. Area cleansed and 

covered with band-aid. [No] further need voiced.” (Id). 

Plaintiff was released to DOC with instructions to return 

to HCU if needed. (Id.). Later, at 11:46 a.m., Plaintiff 

returned to the HCU complaining that “it wasn’t like that 

earlier.” (Id. at 4). The notes from the nurse’s physical 

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exam reflect Plaintiff as “ambulatory to HCU with [a]

steady gait, . . . superficial laceration remains to [left] 

middle finger . . . shallow laceration remains to [right] 

elbow. Now [complains of] [right] wrist pain. No 

swelling, redness nor [sic] deformity noted.” (Id.). 

Plaintiff was released from HCU, but again returned that 

evening around 8:45 p.m. saying, “They didn’t give me no 

[sic] pain meds for my wrist. I’m in pain.” (Id. at 5). 

The nurse’s notes to this complaint indicate that no new 

trauma was presented at this time and that the patient 

complains of pain to hand from an old injury from October 

2013. (Id.). Plaintiff was again released to DOC, with no 

special instructions to return to the HCU.

At 4:30 p.m., on that same day and during the evening 

meal, Defendant Whittle was notified that more inmates, 

including Plaintiff, were refusing to move their arms from 

their tray doors so the officers could secure the cell 

doors. (Doc. 23-4 at 1). Defendant Whittle completed 

feeding the evening meal, and at 5:40 p.m., reported to the 

segregation annex to secure those open tray doors. (Id.). 

Before approaching any of the inmates refusing to remove 

their arms from the tray doors, Defendant Whittle 

instructed Officer Madison to begin recording as Defendant 

Whittle approached each inmate. (Id.). 

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Once the other inmates’ tray doors were secured, at 

least one of which required the use of Defendant Whittle’s 

chemical agent, Whittle approached Plaintiff’s cell and saw 

that his arms were again impeding the closure of the tray 

door. (Id.). This time, Whittle is operating the video 

camera as Officer Ezell ordered Plaintiff several times to 

remove his arm from the tray door. (Id.). Plaintiff 

refused to comply, and Officer Ezell administered a twosecond burst of his chemical agent to Plaintiff’s face. 

(Id.). Plaintiff finally removed his arms and his tray 

door was secured. (Id.). At 8:45 p.m., after the relevant 

authorities were notified of the events, Warden Meyers and 

Captain Fails escorted Plaintiff to the HCU for a medical 

assessment and decontamination. (Id. at 2). For evidence 

purposes, Defendant Whittle also took pictures of Plaintiff 

and instructed him to submit a written statement for 

evidence purposes. (Id.). Captain Fails conducted an 

Investigative Report concluding “the force used [was]

justified [and] only the amount of force necessary was used 

to get each inmate to comply.” (Doc. 23-5 at 1). 

The video of this incident supports Defendants’ 

written record as well. In fact, the video clearly shows 

Officer Ezell respectfully and considerately ordering 

Plaintiff to remove his arms, but Plaintiff continued to 

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refuse, resulting in Officer Ezell’s use of his chemical 

agent on Plaintiff. The video also shows Plaintiff’s right 

elbow which he claims was “maliciously whittled, snipped 

and/or lacerated” by Defendant Whittle, and which, with 

such severe sounding wounds, would have extensive 

bandaging. However, it is plain to see that only a mediumsized regular band-aid was placed on Plaintiff’s elbow by 

the nurse, as opposed to any stitches or gauze and medical 

tape which may have been used to mend and bandage a larger, 

more serious wound. 

Plaintiff’s Complaint and Response to Defendants’

Motion is a twenty-four-page and thirty-page diatribe of 

verbiage scattered with randomly placed quotation marks, 

underlinings, parentheticals and words in all-caps. (Docs. 

1, 30). Without rehashing Plaintiff’s verbose rants, the 

Court has interpreted Plaintiff’s submissions to allege 

Eighth Amendment claims of excessive force against 

Defendants Whittle, Franklin and Ezell; and Eighth 

Amendment claims of inadequate, delayed or denied medical 

care against Defendants Whittle, Ezell and Franklin. 

(Id.). Plaintiff submits disciplinary reports for each 

incident and an affidavit from inmate Gerard McCree to 

support his position. (Doc. 6). 

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For relief, Plaintiff requests “$100,000 in punitive 

damages from Whittle. . . . Punitive damages of 75,000 

from Ezell and Franklin. $30,000 in compensatory Damages 

from each individual, $10,000 in emotional damages from 

each individual.” (Doc. 1 at 7). 

Defendants deny Plaintiff’s allegations with 

affidavits, incident reports, medical records and two 

videos documenting each altercation. As previously noted, 

the videos depict the events giving rise to Plaintiff’s 

allegations, discrediting them entirely, and supporting 

Defendants’ version of what occurred. 

II. Discussion

a. Summary Judgment Standard

In analyzing the propriety of a motion for summary

judgment, the Court begins with the following basic 

principles. The Federal Rules of Civil Procedure grant 

this Court authority under Rule 56 to render “judgment as a 

matter of law” to the party who moves for summary judgment. 

FED.R.CIV.P. 56(a). Summary 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). The Court must view the evidence produced by “the 

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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, 

Rule 56(e) states that:

If a party fails to properly support an 

assertion of fact or fails to properly 

address another party’s assertion of fact as 

required by Rule 56(c), the court may:

(1) give an opportunity to properly support 

or address the fact;

(2) consider the fact undisputed for 

purposes of the motion; 

(3) grant summary judgment if the motion and 

supporting materials—including the facts 

considered undisputed—show that the movant 

is entitled to it; or

(4) issue any other appropriate order.

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 U.S. 242, 249-50 

(1986) (internal citations omitted). “A mere ‘scintilla’ 

of evidence supporting the opposing party's position will 

not suffice; there must be enough of a showing that the 

[trier of fact] could reasonably find for that party.” Id. 

Additionally, it is well settled that a conclusion cannot 

be taken as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 

(2009). Conclusory allegations based on subjective beliefs 

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are likewise insufficient to create a genuine dispute of 

material fact and, therefore, do not suffice to oppose a 

motion for summary judgment. Holifield v. Reno, 115 F.3d 

1555, 1564 n. 6 (11th Cir.1997); see also Leigh v. Warner 

Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000)(“[t]his 

court has consistently held that conclusory allegations 

without specific supporting facts have no probative 

value”); Fullman v. Graddick, 739 F.2d 553, 556-57 (11th 

Cir. 1984)(a plaintiff’s mere verification of conclusory 

allegations is not sufficient to oppose a motion for 

summary judgment). Therefore, “[s]ummary 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. and Eng’g, Inc. v. Midway 

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

Although factual inferences must be viewed in a light 

most favorable to the nonmoving party and pro se complaints 

are entitled to liberal interpretation by the courts, a pro 

se litigant does not escape the burden of establishing by 

sufficient evidence a genuine dispute of material fact. 

Brown v. Quality Corr. Healthcare, Inc. 2014 WL 2916747, 

at *2-*3 (M.D.Ala. June 26, 2014)(citing Beard v. Banks,

548 U.S. 521, 525 (2006)(citation omitted). Thus, the 

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plaintiff's pro se status alone does not mandate this 

court's disregard of elementary principles of production 

and proof in a civil case. See Matsushita Elec. Indus. Co. 

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 

Furthermore, where the record before a court directly 

contradicts a plaintiff’s version of the facts, the Court 

must not adopt the plaintiff’s version, and instead rely on 

the creditable version of those facts in making its 

decision. See Scott v. Harris, 550 U.S. 372, 380 

(2007)(“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.”); Vicks v. Knight, 380

Fed. Appx. 847, 851 (11th Cir. 2010)(unpublished).

III. Excessive Force and Failure to Protect

As stated above, Plaintiff seeks redress for alleged 

injuries he received from Defendants Whittle and Ezell when 

they allegedly used excessive force on him while attempting 

to close the cell tray door, and from Defendant Franklin 

when he used excessive force by pulling Plaintiff’s rearhandcuffed arms up over his head as Franklin escorted him 

to the HCU. Plaintiff also claims Defendant Franklin 

failed to protect him from the excessive force used on him 

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by Defendant Whittle. (Docs. 1, 30). Section 1983 provides 

in pertinent part:

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). Additionally, the Eighth 

Amendment provides that, “[e]xcessive bail shall not be 

required, nor excessive fines imposed, nor cruel and 

unusual punishments inflicted.” U.S. Const. amend. VIII. 

The Eighth Amendment’s proscription against cruel and 

unusual punishment prohibits prison officials from 

exhibiting deliberate indifference to a substantial risk of 

serious harm to an inmate. Farmer v. Brennan, 511 U.S. 

825, 828 (1994).

In DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 

489 U.S. 189 (1989), the Supreme Court summarized a state’s 

constitutional responsibilities with regard to inmates:

[W]hen the State takes a person into 

its custody and holds him there against 

his will, the Constitution imposes upon 

it a corresponding duty to assume some 

responsibility for his safety and 

general well-being . . . . The 

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rationale for this principle is simple 

enough: when the State by the 

affirmative exercise of its power so 

restrains an individual’s liberty that 

it renders him unable to care for 

himself, and at the same time fails to 

provide for his basic human needs –

e.g., food, clothing, shelter, medical 

care, and reasonable safety – it 

transgresses the substantive limits on 

state action set by the Eighth 

Amendment and the Due Process Clause. 

Id. at 189-200 (citations omitted).

To establish a constitutional violation for excessive 

use of force, Plaintiff must first show that the alleged 

wrongdoing was objectively “harmful enough” to establish a 

constitutional violation, meaning defendant’s conduct 

“shocks the conscience,” Lumley v. City of Dade City, Fla., 

327 F.3d 1186, 1196 (11th Cir. 2003), and, second, 

Plaintiff must show that “the officials act[ed] with a 

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

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

Mack, 2014 WL 2435655, at *6 (S.D.Ala. May 30, 2014) 

(citing Hudson v. McMillian, 503 U.S. 1, 6–8 (1992)). A 

higher standard with a more culpable intent requirement is 

applied where a plaintiff claims the use of excessive 

force. Flowers v. Bennett, 135 F.Supp. 2d 1150, 1155 

(N.D.Ala. Dec. 11, 2000). “Under the Eighth Amendment, 

force is deemed legitimate in a custodial setting as long 

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as it is applied ‘in a good faith effort to maintain or 

restore discipline [and not] maliciously and sadistically 

to cause harm.’ “ Skrtich v. Thornton, 280 F.3d 1295, 1300 

(11th Cir. 2002) (quoting Whitley v. Albers, 475 U.S. 312, 

320–21 (1986)). 

Under Whitley and its progeny, the Supreme Court 

delineated factors used to determine whether there has been 

a violation of the Eighth Amendment in the prison security 

context: the need for the application of force, the 

relationship between that need and the amount of force 

used, the threat reasonably perceived, any efforts 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). While the extent of any injury is not 

alone dispositive of an excessive force case, it is “one 

factor that may suggest whether the use of force could 

plausibly have been thought necessary in a particular 

situation.” Id.; see also Hudson at 10 (stating that blows 

causing bruising, swelling, loosened teeth and a cracked 

dental plate do not constitute a de minimus use of force). 

a. Defendant Whittle and the Hook Knife

Though Plaintiff claims Defendant Whittle 

intentionally, maliciously and sadistically “lacerated” his 

finger and arm with a “hook knife,” the Court does not find 

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that Defendant Whittle acted in such a fashion, and 

Plaintiff’s claim of excessive force against her is due to 

be dismissed with prejudice. First, the video account of 

the incident directly discredits and contradicts 

Plaintiff’s version of the facts, so the Court does not 

accept as true Plaintiff’s allegations in this instance. 

Instead, it relies on the audio and video provided by 

Defendants which depicts Plaintiff intentionally impeding 

Defendant Whittle’s attempts to secure his tray door. 

Plaintiff intentionally created this situation by tying 

socks around the hinges of his tray and placing his arms in 

the tray hole slot and refusing to move them when ordered 

to do so. The video further portrays Defendant Whittle 

attempting to avoid cutting Plaintiff’s arms as she tried 

to cut the socks away from the tray door. Defendant 

Whittle can also be heard, without anger or malice,

repeatedly asking Plaintiff to move his arms before she 

attempted to remove the socks. Based on the vide evidence, 

the Court concludes that Defendant Whittle’s conduct did 

not “shock the conscience” as she tried to remove the socks 

from the tray door. See Lumley v. City of Dade City, Fla., 

327 F.3d 1186, 1196 (11th Cir. 2003).

Regardless of the video, though, the Court finds that 

Plaintiff fails to meet his burden of proof on at least one 

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element of his excessive force claim. As to the first 

objective element of an excessive force claim, the Court 

does not conclude, but will acknowledge that Defendant 

Whittle’s actions could be viewed as rising to the level of 

a constitutional tort, even though Plaintiff does not 

provide sufficient proof of such. 

The Court finds that Plaintiff also fails to meet his 

burden on the second, subjective element of his claim. 

Nowhere in his Complaint (Doc. 1), or Response to 

Defendants’ Motion (Doc. 30), does Plaintiff provide any 

evidence indicating that Defendant Whittle acted 

“maliciously and sadistically to cause harm.” Jacoby, 

supra p. 17. Plaintiff does not indicate any sort of 

unnecessary or wanton infliction of pain was used to 

accomplish the closing of his tray door. Rather, Plaintiff 

relies on his own assertions which are not substantially 

probative, but merely conclusory, and it is well settled 

that a conclusion cannot be taken as true. Ashcroft, 556 

U.S. 662, 678-79; see also Leigh, 212 F.3d 1210, 1217 

(“[t]his court has consistently held that conclusory 

allegations without specific supporting facts have no 

probative value”); Fullman, 739 F.2d 553, 556-57 (a 

Plaintiff’s mere verification of conclusory allegations is 

not sufficient to oppose a motion for summary judgment).

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Regardless of Plaintiff’s allegations being deemed 

conclusory, the Court reverts back to its reliance on the 

video, as the video indeed speaks for itself. It shows 

Defendant Whittle respectfully asking Plaintiff to move his 

arms so she can maintain the order and protocol of tray 

doors in the segregation unit. It shows her trying to 

avoid cutting Plaintiff’s arms as he refused to move them 

from where she was cutting. The video also shows very 

little to no injury to Plaintiff’s arms, and shows 

Plaintiff becoming increasingly disrespectful and hostile 

toward Whittle as she attempted to remove the socks. 

Nowhere in the record is it demonstrated that 

Defendant Whittle engaged in “unnecessary and wanton 

infliction of pain is distinguished from punishment and 

defined as an “immediate coercive measure undertaken by a 

prison official, necessitated by a spontaneous violation of 

a prison rule or regulation.” Ort v. White, 813 F.2d 318, 

322 (11th Cir. 1987). Situations such as the one Plaintiff 

created dictates that prison officials, like Defendant 

Whittle, undertake immediate action to end the violation 

without the luxury of hindsight and reflection. Id. The 

final determination “ultimately turns on whether force was 

applied in a good faith effort to maintain or restore 

discipline or maliciously and sadistically for the very 

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purpose of causing harm.” Id. The Court concludes that 

Defendant Whittle did not act with malicious and sadistic 

intent, but in a good faith effort to restore the security 

of Plaintiff’s cell. Without anything more than conclusory 

allegations, and with contradictory video evidence in the 

record, Plaintiff has failed to make a showing sufficient 

to establish the existence of the subjective element of his 

excessive force claim, of which he would bear the burden of 

proof at trial, and thus, his claim against Defendant 

Whittle is due to be dismissed with prejudice.1 

b. Defendant Ezell and the Chemical Agent

The same § 1983 Eighth Amendment excessive force 

analysis set out above regarding Defendant Whittle applies 

to Defendant Ezell where Plaintiff claims that Ezell’s use 

of a chemical agent on him was excessive force. The Court 

finds that he likewise fails to meet his burden on the 

second, subjective element. At no point in Plaintiff’s 

ongoing rants does he submit any evidence that Defendant 

Ezell acted with a malicious or sadistic intent to harm 

Plaintiff beyond what was necessary to restore order. 

Instead, the video again shows Defendant Ezell encouraging 

																																																							 1

 Because Plaintiff fails to meet the most basic 

elements of his excessive force claim, the Court will not 

engage in applying the five Whitley factors to Defendant 

Whittle’s conduct. 

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Plaintiff to move his arms from the tray hole, and when he 

refuses, Ezell sprays him with a two second burst of a 

chemical agent. Without any indication to the contrary, 

the Court concludes that Defendant Ezell’s actions do not 

“shock the conscience,” and that he acted in good faith to 

restore the order of the segregation unit when he was 

forced to use his chemical agent on Plaintiff. Because 

Plaintiff again fails to make a showing sufficient to 

establish the existence of the subjective element of his 

excessive force claim against Defendant Ezell on which he 

would carry the burden at trial, his claim should be 

dismissed with prejudice. 

c. Defendant Franklin and the Failure to Protect; 

Alleged Misuse of Handcuffs

Plaintiff contends that Defendant Franklin failed to 

protect him from Defendant Whittle’s “maliciously 

cut[ting], and sadistically mac[ing] Plaintiff [] through 

[his] tray slot, and failing to make an endeavor to stop 

the assault.” (Doc. 30 at 10). Plaintiff also alleges 

that, as Defendant Franklin was escorting him to the HCU, 

that Franklin “maliciously and sadistically misused the 

handcuffs after he applied the handcuffs to the rear . . . 

by ‘yanking [his] arms upward, very aggressively, almost 

over Plaintiff’s ‘pate.’” (Id. at 10-11). 

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Regarding the failure to protect allegation, the Court 

finds that Plaintiff fails to demonstrate that a genuine 

dispute of material fact exists wherein a reasonable jury 

could find in Plaintiff’s favor. 

The Eighth Amendment is only violated by a prison 

official’s deliberate indifference to a substantial risk of 

serious harm to an inmate. Farmer v. Brennan, 511 U.S. 

825, 828 (1994). “An officer who is present at the scene 

[of an altercation,] and who fails to take reasonable steps 

to protect the victim of another officer’s use of excessive 

force can be held liable for his nonfeasance.” Jacoby, 

2014 WL 2435655, at *10 (citing Hadley v. Gutierrez, 526 

F.3d 1324, 1330 (11th Cir. 2008). But, it must also be 

true that the non-intervening officer was in a position to 

intervene yet failed to do so. Priester v. City of Riviera 

Beach, Fla., 208 F.3d 919, 924 (11th Cir. 2000). 

Therefore, if excessive force is not used, then an officer 

has no duty to intervene. See Crenshaw v. Lister, 556 F.3d 

128, 1294 (11th Cir. 2009). With the finding above that 

neither Defendant Whittle nor Defendant Ezell used 

excessive force, in Franklin’s presence or at all, then 

Defendant Franklin had no duty to protect from or intervene 

upon the situation as it played out with either Defendant 

Whittle or Ezell. 

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Furthermore, it is well-settled that “not every 

malevolent touch by a prison guard gives rise to federal 

cause of action.” Hudson, 503 U.S. 1, 9. “Not every push 

or shove, even if it may later seem unnecessary in the 

peace of a judge’s chambers, violates a prisoner’s 

constitutional rights.” Id. at 9 (citations omitted). 

Therefore, the Court concludes that Defendant Franklin had 

no duty to protect or intervene, and Plaintiff’s claims of 

such are due to be dismissed with prejudice.

As for Plaintiff’s claims that Defendant Franklin 

engaged in excessive force against him by yanking his rearcuffed arms over his head, the Court likewise finds those 

allegations fail as a matter of law. Again, applying the 

objective and subjective elements of an excessive force 

claim, and its corresponding analysis set out above, to 

Plaintiff’s assertions, it is clear, based on Franklin’s

affidavit and Plaintiff’s medical charts, that such yanking 

of handcuffs did not occur. Defendant Franklin expressly 

states in his affidavit that he did not grab the chain of 

the handcuffs and yank them over Plaintiff’s head, and that 

he has no knowledge of the use of excessive force against 

Plaintiff on any occasion. (Doc. 23-8). Furthermore, 

Plaintiff’s body charts do not indicate any sort of injury 

associated with yanking rear-cuffed arms over one’s head. 

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If this action had occurred, Plaintiff presumably would 

have presented to the HCU with severe shoulder injuries, 

but instead, he only complained of cuts to his finger and 

elbow, and later a sore wrist, which the nurse noted 

stemmed from an older injury in October of 2013. (Doc. 23-

6 at 5). 

Once again, Plaintiff relies upon his own assertions 

which are not substantially probative, or probative at all, 

but mere conclusions without supporting facts or law. Such 

conclusory allegations cannot be taken as true, and as 

such, Plaintiff fails to make a showing sufficient to 

establish the existence of an element essential to his 

claim, and on which he bears the burden of proof at trial. 

Custom Mfg. and Eng’g, Inc. v. Midway Servs., Inc., 508 

F.3d 641, 647 (11th Cir. 2007). Plaintiff’s claims against 

Defendant Franklin are due to be dismissed with prejudice 

as a matter of law. 

IV. Adequate Medical Care

To the extent Plaintiff claims he was delayed, denied 

or given inadequate medical care, the Court finds 

Plaintiff’s unsubstantiated allegations to be conclusory, 

as there is nothing in the record indicating any delay, 

denial or inadequate medical care. To prevail on a claim 

for inadequate medical care, an inmate must show that the 

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defendants acted with deliberate indifference to his 

serious medical needs. Estelle v. Gamble, 429 U.S. 97 

(1976). In Estelle, the Supreme Court held that a prison 

official’s deliberate indifference to the serious medical 

needs of a prisoner constitutes the unnecessary and wanton 

infliction of pain proscribed by the Eighth Amendment. 

Estelle at 104; see also Campbell v. Sikes, 169 F.3d 1353, 

1363 (11th Cir. 1999)(stating “[t]he Eighth Amendment 

prohibits prison officials from exhibiting deliberate 

indifference to prisoners’ serious medical needs”). 

“However, not every claim by a prisoner that he has not 

received adequate medical treatment states a violation of 

the Eighth Amendment.” McElligot v. Foley, 182 F.3d 1248, 

1254 (11th Cir. 1999)(citation omitted). The inadvertent 

or negligent failure to provide adequate medical care 

cannot be said to constitute an unnecessary and wanton 

infliction of pain. . . . Medical malpractice does not 

become a constitutional violation merely because the victim 

is a prisoner.” Estelle, 429 U.S. 97, 105-06. Thus, a 

prisoner must allege acts or omissions sufficiently harmful 

to evidence deliberate indifference to serious medical 

needs. Id. at 106.

The Eleventh Circuit delineated the objective and 

subjective portions of an Eighth Amendment claim, which 

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must be met in order to prove an Eighth Amendment 

violation: 

An Eighth Amendment claim is said to 

have two components, an objective 

component, which inquires whether the 

alleged wrongdoing was objectively 

harmful enough to establish a 

constitutional violation, and a 

subjective component, which inquires

whether the officials acted with a 

sufficiently culpable state of mind.

Sims v. Mashburn, 25 F.3d 980, 983 (11th Cir. 1994)(citing 

Hudson v. McMillian, 503 U.S. 1, 8 (1992)). The objective 

component of the Eighth Amendment requires a plaintiff to 

demonstrate that an “objectively serious medical need” 

exists. Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 

2003). A serious medical need is “considered one that has 

been diagnosed by a physician as mandating treatment or one 

that is so obvious that even a lay person would easily 

recognize the necessity for a doctor’s attention.” Id. 

(citing Hill v. DeKalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 

1187 (11th Cir. 1994) overruled on other grounds in Marsh 

v. Butler Cnty., Ala., 268 F.3d 1014, 1031 n. 8 (11th Cir. 

2001)(quotation marks omitted)). “In either of these 

situations, the medical need must be one that, if left 

unattended, pos[es] a substantial risk of serious harm.” 

Id. (citations and quotation marks omitted). 

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In order to meet the subjective requirement of an 

Eighth Amendment denial of medical care claim, Plaintiff 

must demonstrate “deliberate indifference” to a serious 

medical need. Farrow, 320 F.3d at 1243. “Deliberate 

indifference entails more than mere negligence. Estelle, 

429 U.S. at 106; Farmer v. Brennan, 511 U.S. 825, 835 

(1994). The Supreme Court held that a prison official 

cannot be found deliberately indifferent under the Eighth 

Amendment “unless the official knows of and disregards an 

excessive risk to inmate health or safety; the official 

must both be aware of facts from which the inference could 

be drawn that a substantial risk of serious harm exists, 

and he must also draw the inference.” Farmer, 511 U.S., 

825, 837-38 (emphasis added). However, “an official’s 

failure to alleviate a significant risk that he should have 

perceived but did not, while no cause for commendation, 

cannot under our cases be condemned as the infliction of 

punishment.” Id. at 838. Therefore, “under Estelle and 

Farmer, deliberate indifference has three components: (1) 

subjective knowledge of a risk of serious harm; (2) 

disregard of that risk; (3) by conduct that is more than 

mere negligence.” Farrow, 320 F.3d 1235, 1246 (citing 

McElligot, 182 F.3d 1248, 1255)(stating that defendant must 

have subjective awareness of an “objectively serious need” 

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and that his response must constitute “an objectively 

insufficient response to that need”)). 

Applying the objective element to Plaintiff’s 

allegations, the Court does not find that Plaintiff’s 

injuries were an objectively serious medical need. That 

is, Plaintiff’s “superficial abrasions” (Doc. 23-6 at 3), 

do not rise to the level of “physician mandated treatment” 

or wounds “so obvious that even a lay person would easily 

recognize the necessity for a doctor’s attention.” Farrow, 

320 F.3d at 1243. 

Based on the video evidence of each incident, as well 

as the body charts submitted by Defendants, the Court 

concludes that Plaintiff’s injuries were “superficial

abrasions,” and therefore, not rising to the level of an 

objectively serious medical need as required by the 

objective element of his Eighth Amendment medical care 

claim. Thus, Plaintiff has failed to meet his burden on at 

least one element of his medical care claim, which he would 

be required to prove should this matter go before a jury. 

Without a genuine issue of material fact, Plaintiff’s 

medical care claims as they relate to any and all 

Defendants should be dismissed with prejudice. 

V. Conclusion

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Based on the forgoing, the Court concludes that 

Defendants Whittle, Franklin and Ezell are entitled to 

summary judgment in their favor on all claims asserted 

against them by Plaintiff. Accordingly, it is recommended 

that Defendants’ Motion for Summary Judgment be granted, 

and that this action against these Defendants be dismissed 

with prejudice, and that judgment be entered in favor of 

Defendants and against Plaintiff on all claims.

NOTICE OF RIGHT TO FILE OBJECTIONS 

A copy of this report and recommendation shall be 

served on all parties in the manner provided by law. Any 

party who objects to this recommendation or anything in it 

must, within fourteen (14) days of the date of service of 

this document, file specific written objections with the 

Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 

72(b); S.D. ALA. L.R. 72.4. The parties should note that 

under Eleventh Circuit Rule 3-1, “[a] party failing to 

object to a magistrate judge's findings or recommendations 

contained in a report and recommendation in accordance with 

the provisions of 28	U.S.C.	§	636(b)(1) waives the right to 

challenge on appeal the district court's order based on 

unobjected-to factual and legal conclusions if the party 

was informed of the time period for objecting and the 

consequences on appeal for failing to object. In the 

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absence of a proper objection, however, the court may 

review on appeal for plain error if necessary in the 

interests of justice.” 11th Cir. R. 3-1. In order to be 

specific, an objection must identify the specific finding 

or recommendation to which objection is made, state the 

basis for the objection, and specify the place in the 

Magistrate Judge’s report and recommendation where the 

disputed determination is found. An objection that merely 

incorporates by reference or refers to the briefing before 

the Magistrate Judge is not specific. 

DONE this 29th day of April, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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