IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

 SOUTHERN DIVISION

ALEX EARL TATE *

(AIS # 182349) *

Plaintiff, *

 *

vs. * CIVIL ACTION NO.12-00593-WS-B

 *

COREY SYKES, *

 *

Defendant. *

REPORT AND RECOMMENDATION

Plaintiff Alex Earl Tate, an Alabama prison inmate 

proceeding pro se and in forma pauperis, filed a complaint 

seeking relief 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 Court on 

Defendant’s Motion for Summary Judgment. (Docs. 32, 34, 36). 

After careful consideration of the motion, and the documents 

filed in support of and in opposition to the motion, and for the 

reasons stated below, the undersigned recommends that Defendant 

Corey Sykes’ Motion for Summary Judgment be granted and that 

Plaintiff’s action be dismissed with prejudice.

I. SUMMARY OF FACTUAL ALLEGATIONS

From its review of the record, the Court summarizes the 

allegations that are material to the issues addressed in this 

Report and Recommendation. At all times relevant to Plaintiff’s 

complaint, Plaintiff Tate was incarcerated at the Fountain 

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Correctional Facility (“Fountain”) and was serving a thirty-year 

sentence for robbery in the first degree.1 (Doc. 1 at 6-7). In 

his complaint, Tate alleges that Defendant Sykes, who was then 

employed as a correctional officer at Fountain, assaulted and 

injured him.2 (Docs. 1 at 5; 32-1 at 1). According to Tate, on 

December 12, 2011,3 his uncle, who was also an inmate, awakened

him and told him that Defendant Sykes was “walking around with 

his stick in his hand, circling around [Tate’s] bunk,” while

making a security check in the dorm. (Doc. 1 at 6). Sykes 

asked Tate for his identification and while Tate was reaching 

for it, Sykes searched his box but did not find any contraband. 

(Id.). Tate asserts that while reaching for his pants to get 

dressed, Sykes placed his arm around Tate’s neck, choked him, 

and began beating him “striking the left side of [his] face and 

eye multiple times, causing injury and swelling.” (Id.). Tate 

contends that when he asked Sykes why he beat him, Sykes

 

1 Plaintiff is currently serving his prison sentence at 

Decatur Community Work Center. See

http://www.doc.state.al.us/InmateHistory.aspx

2 The Defendant is currently serving as a correctional 

officer at Holman Correctional Facility. (Doc. 32-1 at 1). 

3 The Plaintiff states that the altercation occurred on 

December 12, 2011, however, the records indicate that the 

incident actually occurred on December 9, 2011. Therefore, the 

Court will refer to December 9, 2011 as the date of incident in 

its Report and Recommendation. 

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replied, “‘the last thing I’m going to do is scar you up, I can 

do what I want to do, I ware [sic] the blue uniform.’” (Id.). 

Tate seeks compensation in the amount of $300,000.00 for 

“assault with injury [and] pain and suffering.” (Id. at 8). 

In an Answer and Special Report filed with the Court, 

Defendant Sykes denies Tate’s allegations and further denies 

that excessive force was used against Tate. (See Docs. 31, 32 at 

10-12, 32-1, 32-2, 32-3, 32-4, 32-5). In a sworn affidavit, 

Sykes asserts that on December 9, 2011, at approximately 7:30 

a.m., he conducted a search of Tate’s bed box. (Doc. 34-2). 

During the search, Sykes twice instructed Tate to step back so 

he could conduct the search. At one point, Sykes retrieved a 

laundry bag from Tate’s living space, whereupon, Tate snatched 

the laundry bag from Sykes’ hands and proceeded to swing at 

Sykes’ chest with his left elbow. (Id.). Sykes pushed Tate 

“away to gain distance and ordered him to step back.” (Id.). 

Tate then bent down and grabbed Sykes and in response, Sykes 

struck inmate Tate one time in the face with a closed fist and 

Tate fell back to the bed as a result. (Id.). Sykes held Tate 

down on the bed and radioed for assistance. Several officers 

arrived to assist and “Sergeant Drew then escorted inmate Tate 

to the health care unit for an examination.” (Id.). 

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Both Tate and Sykes received medical attention. (Id.; Doc. 

32-3, 4). Tate was examined by the medical staff immediately 

following the incident. The medical records reflect that on 

physical examination, Tate’s vital signs were within normal 

limits, his face was red, he was bleeding under his left eye, 

and he had a laceration 1 and 1⁄2 inches long under his left eye. 

(Id.) Tate does not allege, and the records do not reflect that 

Tate required stitches or any further medical treatment.

In an Order dated January 13, 2015, the Court converted 

Sykes’ Special Report and Answer into to a Motion for Summary 

Judgment, explained to the parties the procedure under Federal 

Rule 56, and afforded the parties an opportunity to respond to 

the motion. (Doc. 36). On February 9, 2015, Tate filed a 

response expressing his desire to continue with the litigation 

and included an affidavit signed by Jeremy Walker, a fellow 

inmate. (Doc. 37). In the affidavit, Walker asserts that he 

witnessed the incident on December 9, 2008 involving Tate and 

Sykes. 4 (Id. at 2). According to Walker, he saw Officer Sykes 

talking “crazy” to Tate, and hit Tate for no reason. He further 

asserts that he left and went to the bathroom, and when he 

 

4 As noted supra, the records indicate that the physical 

altercation between Tate and Sykes occurred on December 9, 2011, 

rather than 2008. (Docs. 32-2, 3, 4, 5)

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returned, the officers were putting handcuffs on Tate. (Id.). 

The Court finds that Syke’s motion is now ripe for resolution.

II. STANDARD OF REVIEW 

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 (“[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.’”(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 

fact.” Id. at 323. 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. 

Id. at 322–24.

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 

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admissions on file,’ designate ‘specific facts showing 

that there is a genuine issue for trial.’” Id. at 324. 

To avoid summary judgment, the nonmoving party “must 

do more than show that there is some metaphysical 

doubt as to the material facts.” Matsushita Elec. 

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 

106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). On the 

other hand, the evidence of the nonmovant must be 

believed and all justifiable inferences must be drawn 

in its favor. See Anderson, 477 U.S. at 255. 

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

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

omitted). 

In considering whether Defendant is entitled to summary 

judgment in this case, the Court views the facts in the light 

most favorable to Plaintiff. Comer v. City of Palm Bay, Florida, 

265 F. 3d 1186, 1192 (llth 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.”). 

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, 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.

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In addition, “[t]here is no burden upon the district court to 

distill every potential argument that could be made based upon 

the materials before it on summary judgment.” Resolution Trust 

Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995). More 

importantly, 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 (llth Cir. Aug. 29, 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)).5

III. DISCUSSION 

As a preliminary matter, the undersigned observes that 

although the Court is required to liberally construe a pro se

litigant’s pleadings, the Court does not have “license to serve 

 

5 “Unpublished opinions are not considered binding

precedent, but may be cited as persuasive authority.” 11th Cir. 

R. 36-2.

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as de facto counsel for a party . . . or to rewrite an otherwise 

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

Inc. v. 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 upon a liberal 

construction of Tate’s complaint, the Court construes his 

factual allegations as asserting a federal excessive force claim 

based upon his altercation with Defendant Sykes in December of 

2011.

As set forth above, Tate seeks redress pursuant to 42 

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

out of a physical altercation between himself and Defendant 

Sykes that took place on December 9, 2011, inside of Tate’s cell 

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at Fountain Correctional Facility 6 . (Doc. 1). 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. 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. Connor, 490 U.S. 386, 394, 109 

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

which attaches "after conviction and sentence," protects 

 

6 Plaintiff Tate is suing Defendant Sykes in his individual 

capacity. (Doc. 1 at 5-6). “Qualified immunity protects 

government officials performing discretionary functions from 

suits in their individual capacities unless their conduct 

violates ‘clearly established statutory or constitutional rights 

of which a reasonable person would have known.’” Dalrymple v. 

Reno, 334 F.3d 991, 994 (11th Cir. 2003) (quoting Hope v. 

Pelzer, 536 U.S. 730, 739), 122 S. Ct. 2508, 153 L. Ed. 2d 666 

(2002)). With respect to Tate’s excessive force claim, qualified 

immunity does not apply. See Skrtich v. Thornton, 280 F.3d 

1295, 1301 (11th Cir. 2002). 

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incarcerated prisoners, like Tate, from punishment that is 

"cruel and unusual." Id. at 392 n.6, 394. Specifically, 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 Sykes, Tate 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 

Defendant "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, 8, 112 S. Ct. 

995, 999, 117 L. Ed. 2d 156 (1992) (citations omitted).

Subjectively, Tate must establish that "force was applied. 

. .maliciously and sadistically to cause harm[,]" as opposed to 

being applied "in a good-faith effort to maintain or restore 

discipline[.]" Hudson, supra, 503 U.S. at 7, 112 S. Ct. at 999; 

see also Whitley v. Albers, 475 U.S. 312, 320-321, 106 S. Ct. 

1078, 1085, 89 L. Ed. 2d 251 (1986)("[W]e think the question 

whether the measure taken inflicted unnecessary and wanton pain 

and suffering ultimately turns on "whether force was applied in 

a good faith effort to maintain or restore discipline or 

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maliciously and sadistically for the very purpose of causing 

harm.") In making this determination, the Court considers the 

need for application of force, the relationship between the 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, 112 S. 

Ct. at 999, (citing Whitley, 475 U.S. at 321, 106 S. Ct. at 

1085); see also Campbell, supra, 169 F.3d at 1375("Hudson and 

Whitley outline five distinct factors relevant to ascertaining 

whether force was used 'maliciously and sadistically for the 

purpose of causing harm': (1) 'the extent of injury'; (2) 'the 

need for application of force'; (3) 'the relationship between 

that need and the amount of force used'; (4) 'any efforts made 

to temper the severity of a forceful response'; and (5) 'the 

extent of the threat to the safety of staff and inmates, as 

reasonably perceived by the reasonable officials on the basis of 

acts known to them.’").

In the instant case, the evidence is uncontroverted that on 

the morning of December 9, 2011, Sykes was conducting a 

legitimate search of Tate’s cell for contraband. In a sworn 

affidavit, Skye contends, and Tate has not disputed, that twice 

during the search, Skye directed him to step back for officer 

security, and Tate failed to do so. (Doc. 34-1). While Tate 

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has presented the affidavit of Walker, a fellow inmate, who 

asserts that he saw Skye talking “crazy” to Tate, and that Skyes

hit Tate for no reason, Walker does not dispute Skye’s assertion 

that twice during the search, Sykes directed Tate to step back, 

and Tate failed to do so 7 . Additionally, Walker does dispute 

Skye’s sworn assertion that he hit Tate once with his closed 

fist. Further, the medical evidence reflects that upon a medical 

examination immediately following the incident, it was noted 

that Tate sustained a 1 and 1⁄2 laceration below his left eye. 

Tate did not require stiches or any follow-up treatment. 

Utilizing the Hudson factors, and viewing the uncontroverted 

facts in the light most favorable to Tate, the undersigned finds 

that Sykes has met his burden of establishing that he applied a 

reasonable amount of force in a good faith effort to maintain 

order during a legitimate search of Tate’s cell rather than 

maliciously and sadistically for the purpose of causing harm. 

Indeed, while in the complaint, Tate contends that Sykes was 

armed with a stick while conducting the search, there is no 

assertion, let alone evidence that Sykes was acting for an 

improper purpose or that he used the stick during the physical 

 

7 Interestingly, while Walker contends that Skye was talking 

“crazy” to Tate, he does not detail Sykes’ alleged statements to 

Tate nor does he contend that the search was not being conducted 

for a valid reason.

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confrontation with Tate. Thus, the uncontroverted evidence that 

Sykes was alone with Tate in the cell attempting to conduct the 

search, that Tate had disobeyed two orders to step away from 

Sykes, that Sykes struck Tate one time with a closed fist, as 

opposed to the stick referenced by Tate, and that Tate sustained 

de minimis injuries, demonstrates that Sykes did not act 

maliciously and sadistically for the purpose of causing harm. 

See Smith v. Sec’y Dep’t of Corr., 524 Fed. Appx. 511 (llth Cir. 

2013) (where inmate sustained swollen eye after officer twisted 

his arm and pressed him against the wall to maintain order, 

officer met his burden of showing no genuine dispute about the 

use of de minimis use of force and no serious injury, and the 

plaintiff failed to rebut the showing by pointing to specific 

facts beyond the pleadings.); Al-AMeen v. Chapman, 2013 U.S. 

Dist. LEXIS 135777 (M.D. Ala. August 30, 2013)(Although the 

plaintiff inmate was struck while restrained in handcuffs and 

wounded with stiches, officer’s act of striking inmate one time 

with a closed fist in the back of head after inmate became loud 

and disruptive was not “repugnant to the conscience of 

mankind.”) As courts have aptly noted, a wide range of 

deference is given to prison officials acting to preserve 

discipline and security. Brown v. Smith 813 F. 2d 1187, 1188 

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(llth Cir. 1987). Accordingly, Skye’s motion for summary 

judgment on Tate’s excessive force claim is due to be granted.

IV. CONCLUSION

For the reasons set forth above, the undersigned concludes 

that Defendant Corey Sykes is entitled to summary judgment in 

his favor on all claims asserted against him by Tate. 

Accordingly, it is recommended that Defendant’s Motion for 

Summary Judgment be GRANTED, that this action be DISMISSED with 

prejudice, and that judgment be entered in favor of Defendant

Corey Sykes and against Plaintiff Alex Earl Tate.

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. 

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 

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Judge is not specific.

DONE this 11th day of September, 2015.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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