IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ZACHERY WILSON, *

 *

Plaintiff, *

 *

vs. * CIVIL ACTION NO. 14-00114-KD-B

 *

GARY SCARBROUGH, et al., *

 *

Defendants. *

REPORT AND RECOMMENDATION

Plaintiff, Zachery Wilson, proceeding pro se and in forma 

pauperis, filed a complaint seeking relief under 42 U.S.C. §

1983. (Doc. 7). This action was referred to the undersigned 

Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. 

Ala. CivLR 72(a)(2)(R), and is now before the Court on 

Defendants Gary Scarbrough and Ashley Kidd’s Motion for Summary 

Judgment (Docs. 29, 30). After careful consideration of 

Defendants’ motion and supporting materials, and Plaintiff’s 

Amended Complaint, evidentiary materials, and brief in 

opposition, the undersigned recommends that Defendants’ motion 

be GRANTED and that this action be DISMISSED with prejudice. 

I. SUMMARY OF FACTUAL ALLEGATIONS 

The relevant facts from Plaintiff’s Amended Complaint 

disclose the following events. Plaintiff Wilson is a state 

prisoner in the custody of the Alabama Department of 

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Corrections. Plaintiff’s claims arise out of an incident that 

occurred on October 1, 2013, while Wilson was incarcerated at 

Holman Correctional Facility. According to Wilson, he was 

smoking a cigarette at the S-4 gate when he was approached by 

Defendant Kidd. (Doc. 7 at 4). (Id.). Kidd instructed Wilson to 

put out his cigarette and informed him he would receive a 

disciplinary for smoking at the gate. (Id. at 9). Wilson claims 

that Kidd was “personalizing and singling [Wilson] out of a 

crowd of people who were smoking cigarettes”. (Id.). According 

to Wilson, Kidd “snapped” and told him to stop making gestures 

because she felt threatened, so he threw his hands “Sky High” in 

the air. (Id.). Kidd then instructed him to take his hands out 

of the air and place them behind his back, because he was going 

to lock up. (Id.). While Wilson “pleaded” with Kidd not to lock 

him up, several officers came running to where Wilson and Kidd 

were standing, including Defendant Scarbrough. (Id. at 9-10). 

Wilson contends that Scarbrough grabbed another officer’s 

mace and sprayed an “exceeding” amount in Wilson’s left eye at 

“point blank range”. (Id. at 10). Scarbrough then snatched 

Wilson’s arms and placed them behind his back in an awkward 

position. (Id.). While Wilson’s arms were behind his back, 

Defendant Scarbrough grabbed Wilson’s right thumb and bent it 

until it popped. (Id.). Wilson further alleges that Scarbrough 

bent one of his arms upward and twisted the other inward. (Id.). 

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Kidd observed Scarbrough’s actions, but failed to intervene and 

stop Scarbrough. (Id.). While escorting Wilson to the health 

care unit, Scarbrough yanked, snatched, and twisted on the chain 

of Wilson’s handcuffs. (Id.). 

Wilson asserts a claim of excessive force against Defendant 

Scarbrough and claims of failure to intervene, and supervisor 

liability against Defendant Kidd1. (Id.). Wilson claims that he 

was injured as a result of this incident. (Id. at 11). 

Specifically, Wilson claims that he suffered a pinched nerve in 

his left eye, a dislocated joint in his right thumb, and joint 

inflammation caused by the excessive force that Scarbrough used 

against him. (Id.). He seeks $250,000 in punitive damages and

$25,000 in compensatory damages from each Defendant. (Id. at 7). 

In support of his amended complaint, Wilson submitted 

copies of inmate request sheets that he submitted regarding his 

medical care, and two declarations, signed under penalty of 

perjury, by two fellow inmates. In his declaration, LaSamuel 

Gamble #197984, assets that on October 1, 2013, he observed 

Defendant Kidd tell Wilson to “put the damn cigarette out and 

bring his ass here”. (Doc. 17 at 5). Gamble asserts that Wilson 

 1 While Wilson originally asserted multiple claims against 

several Defendants in his Amended Complaint, he voluntarily 

dismissed all claims against all Defendants except for his 

claims against Defendants Scarbrough and Kidd. (Doc. 7 at 5, 

Doc. 20). 

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went over to Kidd, but he was not able to hear the conversation 

between them. However, he observed Wilson throw his hands in 

the air, several officers surround Wilson, and Defendant 

Scarbrough grab officer Smith’s mace and spray “a lot of mace 

directly into Wilson’s face”.(Id.) Gamble further asserts that 

he then saw Scarbrough turn Wilson around and place Wilson’s 

arms in an awkward position, and then handcuff him. According 

to Gamble, Scarbrough handled Wilson “pretty rough”, and as a 

result, a lot of the guys got frustrated watching Scarbrough. 

(Id.). Gamble also questioned whether Wilson should have been 

sent to segregation for smoking rather than just issued a 

citation. (Id.)

In his declaration, Andrew Askew alleges that as he was 

leaving the pill call window, he saw Wilson talking to Kidd with 

his hands in the air, while surrounded by other officers, 

including Scarbrough. (Doc. 17 at 6). Askew asserts that Wilson 

was “crying real bad” and telling Kidd “Why do she keep 

personalizing against him”. Askew further asserts that 

Scarbrough directed him to move on, and that by the time he 

reached the S-5 gate, Scarborough had snatched officer Smith’s 

mace, and started spraying Wilson. (Id.) Askew contends that 

Scarborough sprayed almost the whole can of mace directly in 

Wilson’s face at close range. According to Askew, Scarborough 

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started getting “over aggressive” with Wilson when he was 

handcuffing him.(Id.)

On June 26, 2015, Defendants Scarbrough and Kidd filed 

their Special Report and Answer denying Wilson’s allegations 

against them and denying that any of his constitutional rights 

were violated. (Docs. 29, 30). In their Special Report, 

Defendants argue that Wilson’s excessive force claim is without 

merit, as the force used was not exercised “maliciously and 

sadistically for the very purpose of causing harm”, but was 

instead used to subdue Wilson and maintain order and discipline 

for the safety of the officers and other inmates. (Doc. 29 at 5-

7)(citations omitted). They further contend that prison 

officials did not act with deliberate indifference to the 

possibility of serious harm, and the injuries suffered by the 

Plaintiff were de minimis. (Id. at 7-9). Finally, Defendants 

contend that all claims against them are barred by absolute and 

qualified immunity. (Id. at 9-10). 

In support of their Special Report, Scarbrough and Kidd 

have submitted sworn affidavits and other documents. (Docs. 29-

1; 29-2; 29-3; 29-4; 29-5; 29-6; 29-7; 29-8; 29-9; 29-10). In 

Defendant Kidd’s affidavits, she asserts that on the day in 

question, while working as the assistant shift commander at the 

Holman facility, she observed Wilson smoking a cigarette in the 

main hall, near the S-4 gate, in violation of institution policy 

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prohibiting smoking on the inside. (Doc. 29-2). Kidd asserts 

that she reprimanded Wilson about his behavior and informed him 

that he would be disciplined. (Id.). Wilson complained that he 

was being singled out. (Id.). She directed Wilson to exit the 

hall, but he refused to do so, and instead, followed her. (Id.) 

She then instructed Wilson to step back away from her, and to 

calm down. (Id.). Although Wilson stepped back, he continued to 

complain, and he raised his hands in the air with his fists 

clinched in a threatening manner. (Id.) Kidd ordered Wilson to 

face the wall to be handcuffed, but he refused to comply. (Id.).

Wilson yelled “Ya’ll going to have to kill me today”. (Id.)

Defendant Scarbrough observed Wilson’s noncompliance, and 

intervened by administering a one second burst of the chemical 

agent Sabre towards Wilson’s facial area. (Id.). Although 

Wilson continue to resist, Scarbrough and another officer, 

Douglas Parham, were able to restrain Scarbrough while Kidd 

handcuffed him. (Id.)

Kidd and Parham escorted Wilson to the healthcare unit for 

decontamination and for a medical assessment. (Id.). According 

to Kidd, she and Wilson had a previous encounter in 2012 while 

he was running as runner for her in the prison. Wilson was 

terminated from his position, and disciplined for indecent 

exposure, after he exposed his penis, while watching Kidd. (Id.)

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Defendant Scarbrough also submitted sworn affidavits. 

(Docs. 29-1; 29-7). He denies Wilson’s substantive allegations, 

and alleges that he observed Wilson refuse to comply with Kidd’s 

commands to exit the main hall, and to turn around, face the 

wall and submit to handcuffing. (Doc. 29-1 at 1-2). Scarbrough 

asserts that he also directed Wilson to “cuff” up and that 

Wilson refused to comply and kept saying “Yall are going to have 

to kill me today”. (Id. at 2). In response, Scarbrough retrieved 

his canister of Sabre Red and administered one single burst to 

Wilson’s facial area. (Id.). He then restrained Wilson while 

Kidd placed him in handcuffs. (Id.). Wilson was taken to the 

Healthcare unit by Kidd and officer Douglas Parhan for 

decontamination and a medical assessment. (Id.). Scarbrough 

expressly denies doing anything to injure Wilson’s thumb or 

eyes. (Doc. 29-7 at 1-2).

Defendants also submitted the sworn affidavit of Douglas 

Parham, who asserts that he observed Wilson yelling and 

screaming on the main hall during on October 1, 2013. (Doc. 29-

6). According to Parham, he observed Scarbrough and Kidd order 

Wilson to cuff up, and saw Wilson refuse to comply. (Id.). He 

also observed Scarbrough administer a one second burst of Sabre 

Red to Wilson’s facial area, at which point, Wilson complied. 

(Id.). Parham and Kidd then escorted Wilson to the Health unit 

for decontamination and for a medical assessment. (Id.). 

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Defendants have also submitted Wilson’s medical records, 

incident reports and Wilson’s disciplinary record arising from 

the incident. (Docs. 29-3; 29-9; 29-10; 37; 37-1; 37-2; 37-3; 

37-4; 37-5; 37-6; 37-7; 37-8; 37-9; 37-10; 37-11; 37-12; 37-13; 

37-14). A “Use of Force” investigative report was prepared by 

Captain Howard a few days after the incident. (Doc. 29-3 at 4). 

The report reflects that Captain Howard took statements from 

Kidd, Scarbrough and inmate Wilson. (Id.). Kidd and Scarbrough 

reported that Wilson was smoking in a prohibited area, he

disobeyed orders to be handcuffed, yelled that “Ya’ll are going 

to have to kill me today”, and threw his hands up and clinched 

his fists in a threatening manner before being administered a 

one second burst of Sabre Red to his facial area. (Id.) In 

addition, Wilson admitted that he was smoking in the main 

hallway, that he was waiving his hands back and forth towards 

Kidd, and that he was angry because he felt Kidd was picking on 

him.2 (Id.). Captain Howard concluded that the use of force was 

justified. (Id.) Additionally, the disciplinary records reflect 

that following an investigation, Plaintiff was disciplined for 

smoking in an unauthorized area. (Doc. 29-9 at 2).

 2 In Wilson’s written statement submitted the day of the 

incident, he admitted that he “got loud a lil bit with my hands 

still in the air” when Kidd told him that he was going to be 

locked up. (Doc. 29-3 at 10).

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Defendants have also submitted Wilson’s relevant medical 

records. A body chart from the date of the injury shows no 

noticeable injuries, and the medical report from an examination 

of Wilson immediately after the incident reflects that he was 

was alert, his skin was in tact, his eyes were flushed with 

water, and no signs of distress or injuries were noted. (Doc. 

29-3 at 12; 37-2 at 19). The report also reflects that Wilson’s 

only complaint was that he could not breathe, that he was 

administered albuterol nebulizer, and that he was released to 

prison officials. (Id.) 

Later that evening, Wilson made a request for medical 

services stating his left eye was blurry. (Doc. 29-10 at 20-22). 

The request was received on October 2, 2013 and a “Nursing 

Encounter Tool” form from that date noted that Wilson’s left eye 

was blurry, that redness and swelling were present, but there 

was no associated eye pain. (Id.). An entry from Wilson’s 

medical visit notes that he has a very slight corneal abrasion 

and erythema in the left eye. (Id. at 29). A steroid eye drop 

and a patch were prescribed as needed. (Id.)

On November 2, 2013, Wilson filled out another medical 

request form and stated that his “left eye won’t stop jumping”. 

(Id. at 7, 11). Upon examination, it was noted that Plaintiff 

reported that his vision was blurry and jumping; however, no 

redness or swelling was observed. (Id.). On November 6, 2013, 

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Wilson was seen by an offsite physician. (Id. at 11). The chart 

entry notes there is a possibility of traumatic iritis in the 

eye.3 (Id.). The entry further reflects that Wilson refused to 

read the eye chart with both eyes, and lists a new eye 

prescription, with 20/20 vision in one eye and 20/70 vision in 

the other. (Id.). 

Notes from Wilson’s November 20, 2013 appointment reflects 

that he reported his “eye feels fine now” but the “lid [is] 

twitching”. (Id. at 16). It also reflects that the iritis had 

resolved, that Maxitrol was prescribed for Wilson’s eye until 

November 30, 20134 and that glasses were ordered. (Id.). 

The medical records also show that Wilson was seen by the 

nurse for thumb pain the day after the incident. (Doc. 29-10 at 

1). The pain was reported to be an ‘8/10’ and ‘throbby’. (Id.). 

The nurse reported swelling in the thumb. (Id.). She noted that 

urgent intervention was not required, but recommended that the 

thumb be treated with the “R.I.C.E.” method.5 (Id.). She further 

recommended that Wilson be seen by an M.D. and receive an X-Ray, 

 

3 Traumatic iritis is a traumatic inflammation of the eye. See

http://www.summitmedicalgroup.com/library/adult_health/oph_traum

atic_iritis/. 

4 Maxitrol is a combination of two antibiotics and a steroid to 

treat bacterial infections in the eye. See

http://www.rxlist.com/maxitrol-side-effects-drug-center.htm. 5 The term “R.I.C.E.” stands for Rest, Ice, Compression, and 

Elevation. See http://www.uhs.wisc.edu/health-topics/musclesand-bone/rice.shtml.

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which was performed on October 3, 2013. (Id. at 2-3). The scan 

found no fracture, dislocation, or other significant bony 

abnormality in the right thumb.6 (Id. at 3). 

On October 9, 2013, Wilson filled out a Health Services 

Request Form stating that his “right thumb is in serious pain”. 

(Id. at 4). This request was referred to a physician. (Id.). 

Urgent intervention was again not required, but he was 

prescribed 500 mg of Naproxen and 750 mg of Robaxin.7 (Id. at 6). 

On November 2, 2013, Wilson filed another Health Services 

Request Form, claiming his thumb was “still swollen and 

disconnected”, and blamed Officer Scarbrough for these issues. 

(Id. at 7). On that date, the nurse noted redness, swelling, 

obvious deformity, and a decreased range of motion in the thumb, 

but no acute distress or joint involvement. (Id. at 8). She 

further noted that no emergent or urgent intervention was 

required. (Id.). 

 

6 The doctor noted a “tiny particulate metal like density” at the 

base of the fifth metacarpal (pinky finger) “that could 

represent a tiny foreign body or film processing artifact”. 

(Doc. 29-10 at 3). 

7 Naproxen is an anti-inflammatory used to relieve pain, 

tenderness, swelling, and stiffness. See

https://www.nlm.nih.gov/medlineplus/druginfo/meds/a681029.html.

Robaxen (also known as Methocarbamol) is a skeletal muscle 

relaxant used to treat muscle pain and spasms. See 

http://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0011134/.

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Another X-Ray was completed on November 4, 2013, and no 

fracture or dislocation was seen.8 (Doc. 29-10 at 12). The 

impression is listed as “mild osteoarthritis to the right hand”.

(Id.). On November 11, 2013, an orthopedic referral was made for 

what was believed to be a ‘displaced’ or ‘dislocated’ thumb, and 

pain, swelling, and an inability to bend the thumb were noted. 

(Id. at 13-14)(emphasis added). An appointment was scheduled 

with an orthopedic doctor for November 12, 2013, and Wilson was 

again prescribed Robaxen and Naprosyn.9 (Id. at 8). On November 

20, 2013, Wilson references the dislocated thumb indicated by 

“Dr. Barber”, and indicated that he wanted painkillers. (Id. at 

24). Another request for medication is made on December 10, 

2013, and Wilson is told that he was only prescribed a Medrol 

dose pack, which includes a high dose of steroids that is 

eventually lowered over several days. (Doc. 17 at 3, see Doc. 

29-10 at 16). The medical records reflect that on March 12, 

2014, Wilson complained of a bump on his thumb; however, no 

edema or other sign of injury was noted.(Doc. 29-10 at 28). 

 

8 The scan did reveal that the distal interphalangeal joints of 

all fingers were narrowed and scherotic “due to degenerative 

changes”, and that to a lesser extent the proximal 

interphalangeal joints also showed degenerative changes. (Doc. 

29-10 at 12). 

9 Naprosyn is another name for Naproxen. See supra, footnote 8.

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Defendants’ Answer, Special Report and supporting materials 

were converted into a Motion for Summary Judgment on January 14, 

2016. (Doc. 47). The parties were notified of the effects of the 

conversion and provided an opportunity to file briefs and 

materials in support of or in opposition to the motion. (Id.). 

Wilson filed a twenty-five page brief in opposition to the 

motion. (Doc. 46). The summary judgment motion has now been 

fully briefed and is now ready for resolution. 

II. SUMMARY JUDGMENT STANDARD

Summary judgment is proper “if the movant shows that there 

is no genuine dispute as to any material fact and that the 

movant is entitled to judgment as a matter of law.” Fed. R. Civ. 

P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

247-48, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 

L. Ed. 2d 265 (1986); Garczynski v. Bradshaw, 573 F.3d 1158, 

1165 (11th Cir. 2009) (“[S]ummary judgment is appropriate even if 

‘some alleged factual dispute’ between the parties remains, so 

long as there is ‘no genuine issue of material fact.’” (citation 

omitted)(emphasis in original)). 

The party asking for summary judgment “always bears 

the initial responsibility of informing the district 

court of the basis for its motion, and identifying 

those portions of the ‘pleadings, depositions, answers 

to interrogatories, and admissions on file, together 

with the affidavits, if any,’ which it believes 

demonstrate the absence of a genuine issue of material 

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fact.” The movant can meet this burden by presenting 

evidence showing there is no dispute of material fact, 

or by showing, or pointing out to, the district court 

that the nonmoving party has failed to present 

evidence in support of some element of its case on 

which it bears the ultimate burden of proof. 

Once the moving party has met its burden, Rule 56(e) 

“requires the nonmoving party to go beyond the 

pleadings and by its own affidavits, or by the 

‘depositions, answers to interrogatories, and 

admissions on file,’ designate ‘specific facts showing 

that there is a genuine issue for trial.’” To avoid 

summary judgment, the nonmoving party “must do more 

than show that there is some metaphysical doubt as to 

the material facts.” On the other hand, the evidence 

of the nonmovant must be believed and all justifiable 

inferences must be drawn in its favor. 

ThyssenKrupp Steel USA, LLC v. United Forming, Inc., 926 F. 

Supp. 2d 1286, 1289-90 (S.D. Ala. Jan. 29, 2013)(citations 

omitted). 

As noted supra, in considering whether the Defendants are

entitled to summary judgment in this case, the Court has viewed 

the facts in the light most favorable to Plaintiff. Comer v. 

City of Palm Bay, 265 F.3d 1186, 1192 (11th Cir. 2001)(“We view 

the evidence and all factual inferences raised by it in the 

light most favorable to the non-moving party, and resolve all 

reasonable doubts about the facts in favor of the non-moving 

party.”)(citations omitted). The requirement to view the facts 

in the nonmoving party’s favor extends only to “genuine” 

disputes over material facts. A genuine dispute requires more 

than “some metaphysical doubt as to material facts.” Garczynski, 

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573 F.3d at 1165 (internal citations omitted). A “mere 

scintilla” of evidence is insufficient; the nonmoving party must 

produce substantial evidence in order to defeat a motion for 

summary judgment. Id.

Moreover, where “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, 127 S. Ct. 1769, 1776, 167 L. Ed. 2d 686 (2007); see also

Logan v. Smith, 439 F.App’x 798, 800 (11th Cir. Aug. 20, 

2011)(“In cases where opposing parties tell different versions 

of the same events one of which is blatantly contradicted by the 

record – such that no reasonable jury could believe it- a court 

should not adopt the contradicted allegations.” (citations 

omitted)(unpublished)).10

Additionally, the undersigned recognizes that while the 

Court is required to liberally construe a pro se litigant’s

pleadings, the Court does not have “license to serve as de facto 

counsel for a party. . . or to rewrite an otherwise deficient 

pleading in order to sustain an action.” GJR Invs., Inc. v. 

 

10 “Unpublished opinions are not considered binding precedent, 

but may be cited as persuasive authority.” 11th Cir. R. 36-2. 

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Cnty. Of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 

1998)(citations omitted), overruled on other grounds by Randall 

v. Scott, 610 F.3d 701 (11th Cir. 2010); see also Giles v. WalMart Distrib. Ctr., 359 F. App’x 91, 93 (11th Cir. 2009) 

(internal citations and quotations omitted) (“Although pro se 

pleadings are held to a less strict standard than pleadings 

filed by lawyers and thus are construed liberally, this liberal 

construction does not give a court license to serve as de facto 

counsel for a party, or to rewrite an otherwise deficient 

pleading in order to sustain an action.”).

Based on a liberal construction of Wilson’s complaint, the 

Court construes his factual allegations as asserting an 

excessive force claim based upon his altercation with the 

Defendants in October of 2013, as well as a claim of failure to 

intervene and/or supervise on the part of Defendant Kidd. The 

undersigned will discuss each of these claims in turn 

individually below. 

III. DISCUSSION

a. Qualified Immunity 

i. Official Capacity 

It is well-established that, “suits against an official in 

his or her official capacity are suits against the entity the 

individual represents.” Parker v. Williams, 862 F.2d 1471, 1476 

n.4 (11th Cir. 1998), overruled on other grounds in Turquitt v. 

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Jefferson County, 137 F.3d 1285 (11th Cir. 1998); see Monell v. 

Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55, 98 S. Ct. 2018, 56 

L. Ed. 2d 611 (1978)(“[O]fficial capacity suits generally 

represent only another way of pleading an action against an 

entity of which an officer is an agent.”); Farred v. Hicks, 915 

F.2d 1530, 1532 (11th Cir. 1990). For the purposes of qualified 

immunity, it is not disputed that Defendants are state 

officials. 

Thus, to the extent that Wilson’s claims are against 

Defendants in their official capacities, his claims are 

effectively claims against the State of Alabama. The Supreme 

Court has held that states and state officials are not “persons” 

subject to liability pursuant to 42 U.S.C. § 1983. See Will v. 

Mich. Dep’t of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 

L. Ed. 2d 45 (1989). Further, pursuant to the Eleventh Amendment 

of the United States Constitution, a state’s own citizens may 

not sue unless the state consents to suit or Congress acts to 

abrogate immunity. See Carr v. Florence, 916 F.2d 1521, 1524-25 

(11th Cir. 1990). There is nothing before the Court that suggests 

that the State of Alabama has consented to the suit or that

Congress has acted to abrogate immunity. Accordingly, Defendants 

have absolute immunity against claims asserted against them in 

their official capacities.

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ii. Individual Capacity 

“Qualified immunity offers complete protection for 

government officials sued in their individual capacities if 

their conduct ‘does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have 

known.” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 

2002)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. 

Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982)). A law enforcement 

officer is entitled to qualified immunity if “an objectively 

reasonable officer in the same situation could have believed 

that the force used was not excessive.” Id. Qualified immunity 

from suits is intended to “allow government officials to carry 

out their discretionary duties without the fear of personal 

liability or harassing litigation, protecting from suit all but 

the plainly incompetent or one who is knowingly violating 

federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 

2002)(internal quotation marks and citations omitted). 

Courts utilize a two-part framework to evaluate individual 

capacity qualified immunity claims. One inquiry into a qualified 

immunity analysis is whether the plaintiff’s allegations, if 

true, establish a constitutional violation. Hope v. Pelzer, 536 

U.S. 730, 736, 122 S. Ct. 2508, 2513, 153 L. Ed. 2d 666 

(2002)(citing Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 

2151, 2156, 150 L. Ed. 2d 272 (2001)). The Eleventh Circuit has 

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observed that in determining whether a right was “clearly 

established”, the courts do not require a case directly on 

point; however, “existing precedent must have placed the 

statutory or constitutional question beyond debate.” Ashcroft v. 

al-Kidd, 563 U.S. 731, 741, 131 S. Ct. 2074, 2083, 179 L. Ed. 2d 

1149 (2011)(internal quotation marks omitted); see also Wilson 

v. Blankenship, 163 F.3d 1284, 1288 (11th Cir. 1998)(internal 

citation omitted)(emphasis in original)(“General propositions 

and abstractions do not qualify for bright line, clearly 

established law. For qualified immunity to be surrendered, preexisting law must dictate, that is, truly compel (not just 

suggest or allow to raise a question about), the conclusion for 

every like-situated, reasonable government agent that what 

defendant is doing violates federal law in the circumstances.”). 

Both elements of the two part test must be present for an 

official to lose qualified immunity, and this two-pronged 

analysis may be done in whatever order is deemed appropriate for 

the case. Pearson v. Callahan, 555 U.S. 223, 241, 129 S. Ct. 

808, 821, 172 L. Ed. 2d 565 (2009). Based upon a careful review 

of the record evidence, the undersigned finds that Plaintiff has 

not shown a constitutional violation; thus, the defense of 

qualified immunity does not need to be reached. See Saucier v. 

Katz, 533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272 

(2001)(finding that in analyzing a qualified immunity case, a 

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court should first ask whether, “on the facts alleged, a 

constitutional violation could be found.”).

b. Excessive Force Claim

As noted supra, Wilson contends that Defendants used 

excessive force when he was sprayed with Sabre Red and placed in 

handcuffs on October 1, 2013. The analysis of an excessive force 

claim brought under § 1983 begins with determining the specific 

constitutional right allegedly infringed by the challenged 

application of force. Graham v. Conner, 490 U.S. 386, 394, 109 

S. Ct. 1865, 104 L. Ed. 2d 443 (1989). 

The Eighth Amendment’s prohibition against cruel and 

unusual punishment, U.S. Const. amend. VIII, governs the use of 

force by prison officials against convicted inmates. Campbell v. 

Sikes, 169 F.3d 1353, 1374 (11th Cir. 1999). In order to 

establish an Eighth Amendment excessive force claim against 

Defendants, Wilson must prove both an objective and subjective 

component. That is, he must show that the alleged wrongdoing was 

objectively “harmful enough” to establish a constitutional 

violation and that the Defendants “act[ed] with a sufficiently 

culpable state of mind, i.e., that the defendant acted 

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

McMillian, 503 U.S. 1, 7, 112 S. Ct. 995, 999, 117 L. Ed. 2d 156 

(1992)(citations omitted). Factors relevant to this 

determination include the “need for the application of force, 

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

the threat reasonably perceived by the responsible officials, 

and any efforts made to temper the severity of a forceful 

response.” Skritch v. Thornton, 280 F.3d 1295, 1300 (llth Cir. 

2002). When considering these factors, courts afford “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 v. Gilstrap, 559 F. 

3d 1212, 1217 (llth Cir. 2009)(quotation marks omitted).

When looking at the objective component of an Eighth 

Amendment excessive force claim, it is important to note 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 U.S. Dist. LEXIS 15347 at *34, 2000 WL 1568337 at 

*12. (S. D. Ala. Sept. 20, 2000) (unpublished) (quoting Hudson, 

503 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 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 

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Whitley v. Albers, 475 U.S. 312, 327, 106 S. Ct. 1078, 89 L. Ed. 

2d 251 (1986)). 

The use of chemical agents on disruptive prisoners is not 

per se unconstitutional. Danley v. Allen, 540 F. 3d 1298, 1307 

(llth Cir. 2008)(overruled on other grounds)(“Pepper spray is an 

accepted non-lethal means of controlling unruly inmates[,]. . 

.[and a] short burst of pepper spray is not disproportionate to 

the need to control an inmate who has failed to obey a jailer’s 

orders”); Soto v. Dickey, 744 F. 2d 1260, 1270 (7th Cir. 

1984)(“The Supreme Court has never held, nor have we or any 

other court of appeals, so far as we can determine, that the use 

of tear gas or a chemical agent is a per se violation of the 

Eighth Amendment. . .”). However, when chemical agents are used 

unnecessarily, without penological justification, or for the 

purpose of punishing or harming an inmate, the use is 

unconstitutional. See Danely, 540 F. 3d at 1311. (holding that 

prolonged exposure to pepper spray due to a failure to properly 

decontaminate an inmate may form the basis of an Eighth 

Amendment claim); Iko v. Shreve, 535 F. 3d 225, 239 (4th Cir. 

2008)(use of additional bursts of pepper spray after inmate 

attempted to comply sufficiently alleged Eighth Amendment 

claim).

The first issue with regard to Wilson’s Eighth Amendment 

claim focuses on whether or not there was a penological 

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justification for the use of the chemical spray on Wilson. In 

this case, Defendants have submitted uncontested sworn evidence 

that Defendant Scarbrough utilized Sabre Red only after Wilson 

failed to comply with commands and engaged in behavior that 

Defendants viewed as threatening, such as talking loudly and 

waiving his hands in the air, when he was repeatedly told to 

place his hands behind his back to be handcuffed. Indeed, in 

his brief in opposition to Defendants’ motion, Wilson himself 

acknowledges that he became uncooperative and disruptive when 

informed that he was being placed in segregation for smoking a 

cigarette on the main hallway. (Doc. 46). Moreover, Wilson does 

not dispute that he was in fact smoking a cigarette in a 

prohibited area. And, the prison’s use of force investigation 

resulted in a finding that the use of Sabre Red was justified 

under the circumstances. While Wilson has submitted the 

declarations of two fellow inmates who witnessed some or all of 

the encounter, neither of them contend that Wilson was not 

smoking, or that he placed his hands behind his back when he was 

repeatedly directed to do so. Accordingly, the undersigned 

finds that the uncontested evidence establishes that 

Scarbrough’s use of Sabre Red spray was for a penological reason 

rather than for the purpose of inflicting harm.

The next issue is whether the force used was excessive in 

relation to the need for force. The Eleventh Circuit addressed 

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this issue in Danley, and held that a “short burst of spray is 

not disproportionate to the need to control an inmate who has 

failed to obey a jailer’s orders.” Danley, 540 F. 3d at 1307. 

The exact same situation presents itself here. While Wilson 

contends that Scarbrough grabbed another officer’s mace and 

sprayed an “exceeding” amount in Plaintiff’s eye at “point blank 

range” (Doc. 7 at 10), he has not presented facts sufficient to 

dispute Defendants’ specific showing that Scarbrough 

administered a one second burst to Wilson’s facial area. 

Plaintiff’s assertion that an exceeding amount of spray was used 

is conclusory and offers nothing to suggest the number of bursts 

or the actual duration of the spraying by Scarbrough. 

Similarly, while Wilson’s fellow inmates assert that “a lot of 

mace” was utilized, or that Scarbrough used “almost the whole 

can”, their assertions are conclusory at best. Here again, 

neither statement offers information regarding the number of 

bursts of spray or the actual duration of the spraying by 

Scarbrough. Further, Askew offers absolutely no basis for his 

assertion that Scarbrough sprayed “almost the whole can”. Such 

conclusory, unsupported assertions, based merely on subjective 

beliefs, are not sufficient to create a genuine issue of 

material fact. See e.g. Waddell v. Valley Forge Dental 

Associates, Inc., 276 F, 3d 1275, 1279 (llth Cir. 2001). Given 

the uncontested record reflects that a single burst of spray was

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utilized in an effort to control Wilson, who was exhibiting 

disruptive behavior, the undersigned finds that there is no 

violation as to the amount of force used in relation to the need 

for force.

Finally, the Court must consider whether Wilson’s exposure 

to the pepper spray caused injury that violates the Eighth 

Amendment. In the instant case, it is undisputed that 

immediately after the incident, Wilson was taken for 

decontamination and evaluation in the Health unit. The only 

injuries alleged by Wilson are a pinched nerve and eye 

irritation caused by a single burst of pepper spray to the face 

and an injured thumb. As noted supra, Wilson’s only complaint 

when he reached the Health unit immediately after the October 1, 

2013 incident was that he could not breathe. He was provided 

treatment with an aerosol nebulizer and his eyes were flushed 

with water. (Doc. 29-3 at 12). A body chart showed no noticeable 

injuries, and the medical staff noted no signs of distress. The 

following day, and during a couple of subsequent visits, Wilson 

complained about his right thumb; however, an X-ray performed on 

October 3, 2013 showed no fracture or dislocation (Doc. 29-10 at 

3), and a second one performed a month later, on November 4, 

2013 again revealed no fracture or dislocation. (Doc. 29-10 at 

12). As a result of the second X-ray, mild osteoarthritis was 

diagnosed. (Id.). While a November 11, 2013 entry on Wilson’s 

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medical chart indicates that the thumb appeared to be dislocated 

and swollen, that he would be started on steroids and referred 

for orthopedic evaluation, there are no X-rays in the file 

documenting a dislocation, and it appears that the only course 

of treatment recommended as a result of the orthopedic 

evaluation was the use of Medrol dose pack. (Doc. 29-10 at 16, 

24; Doc. 17 at 3). Similarly, Wilson made multiple complaints 

about his left eye following the October 1, 2013 incident, and 

the medical records document a very slight corneal abrasion and 

erythema in the left eye, and possible traumatic iritis in the 

eye. (Doc. 29-10 at 11, 29). By November 20, 2013, the records 

reflect that Wilson reported that his “eye feels fine now” but 

the “lid [is] twitching”. (Id. at 16). The note further reflect 

that the iritis was resolved, and that Maxitrol was prescribed 

for Wilson’s eye until November 30, 2013. Glasses were also 

ordered; however, the notes reflect that Wilson refused to read 

the eye chart with both eyes. (Id.). The upshot of these 

records is that any injuries arguably sustained by Wilson as a 

result of the October 1st incident were de minimis at best, and 

had significantly improved by the middle of November 2013.

Compare Maddox v. Gibson, 2014 U.S. Dist. LEXIS 38252 at *28-29, 

2014 WL 1202743 at *8-9 (S.D. Ala. Mar. 24, 2014)(lingering 

effects after the use of pepper spray considered de minimis

despite continued complaints when a subsequent exam showed no 

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chemical side effects a month later) with Johnson v. Ashworth, 

2014 U.S. Dist. LEXIS 41620 at *32-34, 2014 WL 1331019 at *10

(S.D. Ala. Mar. 27, 2014)(a genuine issue of material fact 

existed for the jury on the subject of de minimis injury where 

diagnosed acute iritis took two months to be resolved, 

ultimately ending in a loss of vision and the development of a 

cataract) and Sumner v. Glover, 2008 U.S. Dist. LEXIS 55671 at 

*5, 2008 WL 2873672 at *6-14 (M.D. Ala. July 23, 2008)(corneal 

abrasion and swelling caused by pepper spray and being rammed 

into the wall required several rounds of multiple prescription 

eye drops and the stitching of the eyelids together for 

temporary relief, presenting a question of material fact as to 

the use of excessive force in the situation).

Accordingly, for the reasons set forth above, the Court 

concludes that there is no genuine issue of material fact that 

precludes the entry of summary judgment on Wilson’s Eighth 

Amendment claim. Therefore, the undersigned recommends that 

Defendants’ motion be granted with respect to Wilson’s excessive 

force claim against Scarborough.

c. Failure to Intervene/Supervisory Liability 

In addition to his excessive force claim against Defendant 

Scarborough, Wilson also alleges that Defendant Kidd failed to 

intervene and “stop Scarbrough from assaulting me”, while 

further noting that she was the supervisor on the shift in which 

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the incident occurred. (Doc. 7 at 5). He further alleges that 

Kidd failed to supervise Wilson in order to ensure that he was 

properly decontaminated, claiming that she did not let him wash 

after the incident with pepper spray. (Doc. 46 at 19-20). The 

second claim is refuted multiple times by the record, both by 

affidavits of the officers involved and the medical charts 

present on the day of the incident. (Doc. 29-3; Doc. 29-10 at

31). 

Wilson’s vague claim of supervisor liability must fail. On

this subject, the Eleventh Circuit held: 

[Supervisor] liability under section 1983 must be 

based on something more than a theory of respondeat 

superior. Supervisory liability occurs either when 

the supervisor personally participates in the 

alleged constitutional violation or when there is a 

causal connection between the actions and the 

supervising official and the alleged constitutional 

violation. 

Dolihite v. Maughon, 74 F. 3d 1027, 1052 (11th Cir. 1996). In the 

instant case, while Wilson alleges that Kidd was directly 

responsible for the altercation that ultimately ended in 

Scarbrough’s use of force, the undersigned has outlined in 

detail why this incident does not rise to the level of a 

constitutional violation. 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, 114 S. Ct. 1970, 128 L. Ed. 2d 811 

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(1994). Prison officers may be held liable under § 1983 if “they 

fail or refuse to intervene when a constitutional violation 

occurs in their presence”; however, for this liability to 

attach, the officer in question “must have been in a position to 

intervene.” Terry v. Bailey, 376 F. App’x 894, 896 (11th Cir. 

2010)(citing Ensley v. Soper, 142 F. 3d 1402, 1407 (11th Cir. 

1998)). 

As the undersigned has concluded that no reasonable jury 

would conclude that Scarbrough used excessive force against 

Wilson in this case, it stands to reason that no reasonable jury 

could find that Kidd was liable in her position as a supervisor 

or for failing to intervene. If no excessive use of force takes 

place, an officer has no duty to intervene. Crenshaw v. Lister, 

556 F. 3d 1283, 1294 (11th Cir. 2009); McBride v. Rivers, 170 F. 

Appx. 648, 658 (11th Cir. 2006)(defendant could not be held 

liable for failing to intervene after court determined no 

excessive force had been used). Accordingly, the undersigned

recommends that Kidd be entitled to summary judgment on 

Plaintiff’s claims of supervisory liability and failure to 

intervene. 

IV. CONCLUSION

For the reasons set forth above, the undersigned concludes 

that Defendants Gary Scarbrough and Ashley Kidd are entitled to 

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summary judgment on all claims. Accordingly, it is recommended 

that Defendants’ Motion for Summary Judgment be GRANTED, that 

this action be DISMISSED with prejudice, and that judgment be 

entered in favor of Defendants Gary Scarbrough and Ashley Kidd

and against Plaintiff Zachery Wilson. 

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. GenLR 72(c). 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 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, 

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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 7th day of September, 2016.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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