IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MICHAEL DARNELL OLIVER, *

(AIS #: 207467) *

 Plaintiff, *

*

vs. * CIVIL ACTION NO. 11-00520-KD-B

*

JOHNNY L. JOHNSON, et al., *

*

 Defendants. *

REPORT AND RECOMMENDATION

Michael Darnell Oliver, an Alabama prison inmate proceeding 

pro se and in forma pauperis, filed a complaint under 42 U.S.C. 

§ 1983. In an order entered on September 11, 2014, the Court 

entered summary judgment in favor of Defendants on all of 

Plaintiff’s claims except his excessive force claim arising out 

of a prison incident that occurred on November 12, 2011. (Doc. 

80). The undersigned Magistrate Judge conducted an evidentiary 

hearing on December 18, 2014 on Oliver’s remaining claim for 

injunctive relief and monetary damages against Defendants 

Christopher Kimbrel, Kenneth Tyus, Charles Andrews, Joel 

Broadhead, Earnest Stanton and Anthony Gipson. After duly 

considering all relevant pleadings, hearing testimony, and 

exhibits, the undersigned concludes that judgment should be 

entered in favor of Defendants and against Plaintiff. 

I. SUMMARY OF HEARING TESTIMONY

A. MICHAEL OLIVER

As evidentiary support for his claim, Plaintiff relied on 

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records from his medical file, his testimony and the testimony 

of inmate James Maples. At the evidentiary hearing, Oliver 

testified that at approximately 3:00 a.m. on November 12, 2011, 

Defendants Broadhead, Stanton and Gipson came to his cell door, 

and instructed him to place his hands through the tray so he 

could be handcuffed for a cell search. According to Oliver, he 

put on his pants and shoes and placed his hands through the 

tray. He was handcuffed behind his back, the cell door was 

opened, and he walked out of the cell and began talking to a 

fellow inmate whose cell was also being searched. 

Oliver testified that he and the other inmate were 

discussing all of the drama with the early morning search when 

Gipson approached and told them to shut the “fuck up.” Oliver 

responded that Gipson could not tell him to shut up and the two 

began exchanging words. Broadhead and Stanton, who had been 

searching inside Oliver’s cell, came out of the cell and pushed 

Oliver’s head into the wall twice. Oliver was then taken back 

into his cell and words were exchanged between him and the 

officers. Oliver testified that Kimbrel, Andrews, and Tyus 

joined the other officers in his cell. 

According to Oliver, rather than commence with a strip 

search per procedure, the officers were patting his pants and 

trying to snatch his pants off. When Oliver questioned what 

they were doing, they threw him against the wall, and through 

the bunk bed (which did not have a mattress), and they all 

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started to beat him up. Oliver testified that the officers 

were grabbing him by the throat and choking him, punching him in 

his face and ribs, and stomping him in his chest. Oliver 

estimates that the beating lasted about ten minutes. 

Oliver further testified that the officers took him out of 

his cell, and en route to the health unit, Broadhead and Gipson 

continued to punch and slap him, and threw him against a door 

causing a bump on his head. Oliver also testified that once in 

the health unit, the officers continued to rough him up and 

holler at him in front of the nurses. Oliver further testified 

that en route from the health unit, the officers punched and 

stomped him on the elevator. 

According to Oliver, he was seen in the health unit by a 

male nurse, and while he told the nurse about his arm being 

swollen, the nurse did not record anything Oliver told him. 

Oliver further testified that the male nurse did not give him an 

ice pack although he requested one, and that while in the 

medical unit, a female nurse completed a body chart, which was 

falsified. He also testified that he did not swell immediately.

Oliver testified that he requested a follow-up medical 

visit, and during that medical visit, he was seen by a female 

nurse, Poindexter. Oliver stated that the nurse tried to get 

more pictures made because his eyes were swollen, he had 

bruises, and a loose tooth, which he indicated had gingivitis in 

it. Oliver told the nurse about pain in his ribs, and she 

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recommended that he see a doctor for fractured ribs. Oliver 

testified that his tooth was later extracted, and that the 

doctor was suppose to order x-rays, but failed to do so. 

According to Oliver, by the time he was transferred to the 

Donaldson facility, the doctor at Donaldson told him that he had 

fractured ribs, but that it was too late for a cast because his 

ribs had healed pretty good. 

Oliver testified that he had heard that Kimbrel is a 

“Klansman,” and that Tyus and the others are “white 

supremacists.” Oliver further testified that he believes that 

he was assaulted because of the color of his skin.

B. JAMES MAPLES

Also testifying on Oliver’s behalf was James Maples, an 

inmate who was housed across from Oliver on the day of the 

incident. Maples testified that he was in cell L12 on the 

second level, which was directly across from Oliver’s cell. He 

also testified that although the cell door and walls are solid, 

he could look through a window in the front of his cell directly 

into Oliver’s cell. On direct examination, Maples testified 

that the officers were conducting a routine shakedown on their

floor, and that Oliver was led out of his cell, with his hands 

cuffed behind his back, and told to stay against the wall while 

his cell was being searched. Maples observed Stanton grab 

Oliver’s neck and push him against the wall and Oliver jerked 

away twice. They then took Oliver back into his cell and all of 

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the officers in the courtroom started stomping, kicking, and 

beating up Oliver. 

On cross-examination, Maples testified that the whole 

incident lasted approximately two minutes, and that it is 

routine for officers to conduct cell searches and to remove an 

inmate from the cell while the search is being conducted. He

acknowledged that at Oliver’s disciplinary hearing, the only two 

officers he mentioned as being involved in the altercation were 

Stanton and Broadhead. Maples testified that he saw Kimbrel, 

Broadhead and Stanton push Oliver into the cell and kick and 

stomp him. He also testified that he saw the officers push 

Oliver straight to the floor, that he could see over Broadhead 

because Broadhead appeared to be kind of bent over like he was 

holding Oliver down, and that he did not see Oliver kick 

Stanton. 

Maples testified that he observed Oliver, dressed in 

boxers, exit the cell accompanied by Kimbrel and Stanton. He 

surmised they were going to the health unit. Maples testified 

that Tyus and Broadhead returned Oliver to his cell and that he 

did not pay attention to any bruises that may have been on 

Oliver when he returned.

C. CHRISTOPHER KIMBREL

Defendant Kimbrel testified that on the day of the incident 

he was a supervisor assigned to the segregation room at Holman. 

He testified that he went to Oliver’s cell the night of the 

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incident, and that Oliver was neither kicked nor beaten. 

According to Kimbrel, following a routine cell search, Oliver 

turned and kicked Stanton, who then took Oliver to the floor. 

Kimbrel testified that while Stanton was taking Oliver to the 

floor, Oliver hit the bed, and his lip was bruised. Kimbrel 

further testified that Broadhead assisted Stanton in gaining 

control of Oliver so that he would stop resisting. According to 

Kimbrel, Oliver was then helped onto his feet and he and Gipson 

escorted Oliver to the health unit. At the health unit, Kimbrel 

took photographs of Oliver, and he prepared an incident report 

documenting the use of force by Stanton. (See Defendants’ Joint 

Exs. 1, 2, 3, 6a-6c).

D. EARNEST STANTON

Stanton testified that he is a correctional officer at 

Holman, and that on the night of the incident, he searched 

Oliver’s cell as part of a routine cell search in the 

segregation unit. According to Stanton, he instructed Oliver to 

place his hands in the tray so that he could be handcuffed. 

Once handcuffed, Oliver was led out of the cell and Stanton and 

Broadhead went into the cell to began the search. Stanton 

testified that Oliver started to curse so he left the cell and 

directed Oliver to be quiet. Stanton further testified that 

Oliver was agitated and started moving around, and in response, 

he told Oliver to calm down. Stanton testified that he then 

placed his hand on Oliver’s back and placed him against the 

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wall. 

Next, Stanton testified that he directed Oliver to return 

to his cell because the search was completed, and that while in 

the cell, Oliver turned around and kicked him in his left leg. 

Stanton testified that at that point, he immediately grabbed 

Oliver under his left arm pit, did a take down and that Oliver 

ended up with the top part of his body on the bed, and his knees 

on the floor. Stanton also testified that Broadhead assisted 

him in gaining control of Oliver, and that Oliver was not kicked 

nor punched during the incident. Stanton further testified that 

Oliver was taken to the health unit with a busted lip following 

the incident. According to Stanton, Oliver was charged with two 

disciplinary infractions, namely making threats and assaulting 

an officer, and was found guilty following a disciplinary 

hearing. (See Defendants’ Joint Ex. 4).

On cross examination, Stanton testified that following the 

cell search, when Oliver entered the cell, he patted Oliver’s 

pockets. According to Stanton, patting Oliver’s pockets was not 

the procedure for conducting a strip search and he never 

progressed to a strip search because Oliver turned and kicked 

him. Stanton also testified that as Oliver was taken down, his 

face/head hit the bed. Stanton testified that he did not see 

any officer inflict pain on Oliver and that he did not accompany 

Oliver to the health unit. Stanton further testified that he 

did not recall Defendant Andrews being in Oliver’s cell during

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the incident.

E. JOEL BROADHEAD

Broadhead testified that on the day of the incident, he and 

Stanton searched Oliver’s cell for contraband. He also 

testified that Oliver was being loud and aggressive and that a 

strip search of Oliver was never conducted because he turned and 

kicked Stanton. Broadhead testified that he observed Stanton 

then grab Oliver from the side and take him down towards the 

bed. According to Broadhead, he assisted Stanton in gaining 

control of Oliver by holding Oliver’s legs down until he was no 

longer combative. They then stood Oliver up and escorted him 

out of the cell, where other officers took him to the health 

unit. Broadhead testified that Oliver had a busted lip and that 

he did not observe anyone punch or kick Oliver.

On cross examination, Broadhead testified that he squatted 

down to hold Oliver’s legs in order to gain control of the 

situation. He also testified that he did not recall Gipson nor 

Andrews being in Oliver’s cell. Broadhead further testified 

that that he believes that if an inmate is involved in an 

altercation, the procedure is to remove his pants for pictures 

in the health unit. 

F. ANTHONY GIPSON

Gipson testified that he was employed as a sergeant at 

Holman on the day of the incident. According to Gipson, he and 

Kimbrel were involved with another inmate when they heard Oliver 

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talking loudly outside of his cell. By the time Gipson arrived 

at Oliver’s cell, the incident was over and Oliver was being 

escorted to the health unit, so Gipson never entered Oliver’s 

cell. Gipson testified that they typically had three officers 

escorting Oliver because of his violent past and his behavior. 

According to Gipson, he remained with Oliver in the health unit

and escorted him back to his cell. He also testified that he 

did not observe anyone kick or punch Oliver and that he did not 

see Defendant Andrews that night.

H. KENNETH TYUS

Tyus testified that he was employed as a sergeant at Holman 

on the day of the incident. According to Tyus, he was involved 

in another cell search when he heard Oliver talking in a loud 

and aggressive voice and making derogatory comments directed at 

the officers. Tyus testified that he left his area and headed 

towards Oliver’s cell. When Oliver was placed back in his cell 

after the shakedown, he turned and kicked Stanton as if he was 

trying to trip him up. According to Tyus, Stanton took Oliver 

to the ground, and no additional force was used. Tyus also 

testified that Oliver was taken to the health unit, with an

abrasion on his lip.

On cross examination, Tyus testified that Oliver was in 

cell L25 and he and Andrews were two cells down in L27. Tyus 

also testified that when Oliver became loud and said something 

indicating that he would fight the officers if he were not in 

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handcuffs, he left Andrews to finish up the search of L27 

because he did not want things with Oliver to escalate. Tyus 

further testified that he never entered Oliver’s cell, but 

observed from the Tier. According to Tyus, he cannot recall if 

he helped to escort Oliver to the health unit, but he was 

present when Oliver was escorted back to his cell. 

I. BENNY ANDREWS

Finally, Benny Andrews, a nurse employed by Corizon Health 

testified for Defendants. Nurse Andrews testified that Corizon 

provides health cares services at the Holman facility through a 

contract with the department of corrections. According to Nurse 

Andrews, he treated Oliver when he was brought to the health

unit on November 12, 2011, and he prepared the body chart dated 

November 12, 2011. (Defendants’ Joint Ex. 5). Nurse Andrews 

said all Oliver told him about his injury was that “they busted 

my lip.” On examination, Nurse Andrews observed a minor 

abrasion to Oliver’s lower lips. Nurse Andrews also noted that 

Oliver was fully oriented, that his skin was warm and dry, and 

that he was in no acute distress. Nurse Andrews testified that 

he examined Oliver for bruises, but did not see any except for 

the abrasion on Oliver’s lip. Thus, Nurse Andrews did not 

proscribe any treatment but directed Oliver to return if he was 

in distress.

On cross examination, Nurse Andrews reiterated that he 

examined Oliver on November 12, that he did not see anything 

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aside from the bruised lip, and that Oliver did not bring 

anything else to his attention. He also testified that Oliver 

kept his head lowered while talking to him and that might be why 

he did not observe Oliver’s loose tooth. Nurse Andrews reviewed 

pictures taken of Oliver on November 12, 2011 and testified that 

the pictures reflected shadows as opposed to any bruises on 

Oliver’s body. According to Nurse Andrews, no bruises, except 

from the bruised lip, were present when he examined Oliver; 

however, he explained that bruises go through healing stages, 

and that while a bruise may initially start out as red, it can

later turn to purple or dark black as time passes. 

Nurse Andrews also testified that it is not uncommon for 

the inmates to enter the health unit wearing boxers so that a 

complete exam can be conducted. He further testified that a 

body chart is completed whenever requested by the department of 

corrections. 

Nurse Andrews identified Plaintiff’s Ex. No. 7 as a nursing 

assessment sheet with a sick call request by Oliver. According 

to Andrews, the document reflects that Oliver made the sick call 

request on November 13, 2011, and was seen by the nurse the next 

day. On the sick call request, Oliver reported that he had been 

assaulted, that he had a swollen and blacken eye, bruises on his 

back and body that needed treatment, allergy and a strength 

headache. He also reported that his head was still itching and 

that he had not received his shampoo, which was to have been

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ordered a month ago. Oliver also asserted that his legs and 

back were aching, that he had a loose tooth, and that he needed 

to see the dentist.

Nurse Andrews identified Plaintiff’s Exs. 3 and 4 as

assessments by Nurse Poindexter, who examined Oliver on November 

14, 2011. Nurse Poindexter’s assessment included a black eye 

(at left eye), loose tooth, left neck abrasion, dry scalp, small 

raised bumps, no flakes noted, and left thigh discoloration

blush. The records also reflect Plaintiff was proscribed 

Motrin.

At the hearing, Oliver submitted a medical record that

reflects that he had a tooth extracted on November 30, 2011, 

which was approximately two weeks following his altercation with 

officers. (Plaintiff’s Ex. No. 2). Oliver also submitted 

medical records dated May 12, 2012. These records reflect that 

at Donaldson, Oliver reported pain in his side and asserted that

it started on November 12, 2011 after he was assaulted by 

“ADOC,” and that he was supposed to have X-rays of his ribs. 

(Plaintiff’s Exs. Nos. 8, 9) The records also reflect that the 

nurse found no evidence of Oliver’s prior complaints of rib pain 

in his medical jacket.

II. DISCUSSION

A. Relevant law

The Eighth Amendment’s prohibition against cruel and 

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

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force by prison officials against convicted inmates. Campbell v. 

Sikes, 169 F.3d 1353, 1374 (llth Cir. 1999). “[W]hether a 

prison guard’s application of force is actionable turns on 

whether that force was applied in a good faith effort to 

maintain or restore discipline or maliciously or sadistically 

for the very purpose of causing harm.” Bozeman v. Orum, 422 

F.3d 1265, 1271 (llth Cir. 2005)(per curiam)(citation omitted). 

To determine whether an application of force was applied 

maliciously and sadistically to cause harm, a variety of factors 

are considered including: “the need for application of force, 

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

the threat reasonably perceived by reasonable officials, and any

efforts made to temper the severity of a forceful response.”

Hudson v. McMillian, 503 U.S. 1, 7-8, 112 S. Ct. 995, 117 L. Ed. 

2d 156 (1992)(citations omitted); see also Whitley v. Albers, 

475 U.S. 312, 320-21, 106 S. Ct. 1078, 1085, 89 L. Ed. 2d 251 

(1986) 

Notably, ‘not . . . every malevolent touch by a prion guard 

gives rise to a federal cause of action.” Hudson, 503 U.S. at 9. 

Rather, the use of force must be “gratuitous or 

disproportionate” and must have “no object but to inflict pain.”

Skritch v. Thornton, 280 F.3d 1295, 1304 (llth Cir. 2002). “It 

is obduracy and wantonness, not inadvertence or error in good 

faith that characterize the conduct prohibited by the Cruel and 

Unusual Punishments Clause. Whitley, 475 U.S. at 319. “The 

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infliction of pain in the course of a prison security measure, 

therefore, does not amount to cruel and unusual punishment 

simply because it may appear in retrospect that the degree of 

force authorized or applied for security purposes was 

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

Further, an excessive force claim “necessarily excludes from 

constitutional recognition de minimis uses of physical force, 

provided that the use of force is not of a sort ‘repugnant to 

the conscience of mankind.’” Hudson, 503 U.S. at 9-10(citation

omitted).

However, a plaintiff is not required to show that the 

application of force resulted in serious injury. Id. at 8. 

Rather, the key inquiry under Hudson is whether the alleged 

conduct involved “unnecessary and wanton infliction of pain.” 

Id. Whether a defendant’s use of force is excessive, and thus 

violative of an inmate’s right to be free from cruel and unusual 

punishment, “depends on whether the [defendant’s] act ‘shocks 

the conscience,’ Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th

Cir. 2007), and it necessarily will if the force was applied . . 

. maliciously and sadistically for the very purpose of causing 

harm.’” Danley v. Allen, 540 F.3d 1298, 1307 (llth Cir. 2008). 

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

irrelevant to the Eighth Amendment inquiry.” Hudson, 503 U.S. at 

7. "[T]he extent of injury suffered by an inmate is one factor 

that may suggest 'whether the use of force could plausibly have 

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been thought necessary' in a particular situation." Id. (quoting 

Whitley, supra, at 321). The extent of injury may also provide 

some indication of the amount of force actually applied. Wilkens 

v. Gaddy, 599 U.S. 34, 37, 130 S.Ct. 1175, 175 L. Ed. 2d 995 

(2010). 

A. Evidentiary Analysis

Based on a review of the evidence presented at the 

evidentiary hearing, and the case pleadings, the undersigned 

rejects Oliver’s version of the November 12, 2011 incident for a 

number of reasons. First of all, Oliver’s testimony conflicts

greatly with the testimony of the Defendants, as well as his own 

witness. As noted supra, Oliver testified that on the date in 

question, Defendants brutally attacked him in his cell by 

repeatedly kicking, stomping, and punching him for ten minutes, 

and that they continued to beat him and ram his head into the 

wall en route to the health unit, and then again while returning 

to his cell. His witness, James Maples, first testified that he 

witnessed the six Defendants beating Oliver.1 However, on crossexamination, Maples acknowledged that at Oliver’s disciplinary 

hearing, Broadhead and Stanton were the only two officers he 

identified as being involved in the altercation with Oliver on 

November 12th. Maples also acknowledged he observed Oliver 

																																																							 1

		While Maples testified that the Defendants assaulted Oliver, 

his testimony was not credible because his hearing testimony 

conflicted with his testimony at the disciplinary hearing, and 

his direct testimony at the hearing was inconsistent with 

responses he provided during cross-examination.

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twice pull away from Stanton despite being instructed by Stanton 

to face the wall and that he only observed three officers, 

namely Stanton, Broadhead, and Kimbrel enter Oliver’s cell. 

Maples also admitted, on cross examination, that the altercation 

lasted all of two minutes, and that he saw Broadhead kneeling 

down as if he was trying to hold Oliver’s leg. 

Further, Defendants Stanton, Broadhead, Tyus, and Kimbrel 

all testified without contradiction that Stanton and Broadhead 

were the only two officers involved in the altercation with 

Oliver, that Oliver was taken to the floor after kicking 

Stanton, and that Oliver made contact with the bed while being 

taken to the floor. Defendants’ version of the events is 

corroborated by the Use-of-Force investigation findings and the 

disciplinary hearings following the incidents. (See Defendants’ 

Joint Exs. 1, 2, 3, 4). 

Most importantly, the medical records following the 

incident do not support Oliver’s version of the events. (See 

Defendants’ Joint Exs. 5, 6a-c; Plaintiff’s Exs. 2, 3, 4, 7, 8, 

9). While Oliver contends that he was brutally assaulted by six 

(6) guards who repeatedly punched, kicked, and stomped him in 

all parts of his body, including his face, and who choked him 

and repeatedly banged his head against the wall, all for a least 

ten (10) minutes, the objective medical records from Oliver’s 

medical assessment immediately following the incident fail to 

reveal any evidence of such a brutal attack. (Id.). In fact, 

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Oliver’s medical record from the health visit immediately 

following the incident reveals that Oliver only suffered a 

“minor abrasion to his lower lip”. (Defendants’ Joint Ex. 5). 

Indeed, other than his lip, no other abnormalities were noted on 

Oliver’s body chart and the records reflect that his breathing 

was “easy,” his speech was clear, and he was in no acute 

distress. (Id.). Furthermore, Oliver’s own statement to the 

medical personnel discredits his version of the events as 

Oliver’s only complaint to the medical staff immediately 

following the incident was “[t]hey busted my lip”. (Id.). 

While Oliver was seen in the medical unit two days later, 

and was noted to have one loose tooth, a left black eye, 

abrasions to the left side of his neck, and left thigh 

discoloration, these injuries are consistent with Defendants’ 

contention that after Stanton placed his arm under Oliver’s left 

armpit and took him down, the upper part of Oliver’s body hit 

the bed while his legs came to rest on the floor. Given that 

Oliver’s injuries were on the left side of his body, the medical 

findings are consistent with the Defendants’ version of the 

altercation, and completely contradict Oliver’s contention that 

he was brutally kicked, stomped, punched, choked, and his head 

was repeatedly banged against the wall for at least ten (10) 

minutes by six (6) prison officials. Indeed, those same records 

reflect that Oliver suffered no injury to his ears, nose, 

throat, jaw, lungs, head, abdomen, and right eye. (Id.). 

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Further, no injuries, bruising, or swelling were noted on 

Oliver’s back, arms, head, 2 or his right arm. Furthermore, 

although Oliver contends that his right rib cage was fractured 

during the incident, the medical reports fail to document any 

existence of such injury and specifically note that Oliver’s 

abdominal exam was completely normal. (Plaintiff’s Ex. 3). 

These injuries, which are primarily to Oliver’s left side and 

were not apparent immediately following the incident, fail to 

support Oliver’s version of the facts that he was brutally 

beaten, stomped, kicked, punched, and choked, and his head was 

repeatedly banged against the wall by six (6) guards for over 

ten (10) minutes. 

As this evidence, along with the overwhelming record 

evidence outlined supra, clearly contradicts and discredits 

Oliver’s version of the events, the Court rejects Oliver’s 

version of the facts to the extent that Oliver claims he was 

repeatedly punched, stomped, kicked, and choked, and that his 

head was rammed into the wall as a reasonable fact-finder could 

not believe Oliver’s version of the facts. See Vicks v. Knight, 

380 F. App’x 847, 852 (11th Cir. 2010); Scott v. Harris, 550 

U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (U.S. 2007). 

Based on the testimony and exhibits, the Court finds that: 

At approximately 3:00 a.m. on November 12, 2011, as Kimbrel, 

																																																							 2 Records reflect that Oliver had small raised bumps on his head 

associated with his dry scalp. (Doc. 48-14 at 7).

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Tyus, Broadhead, Stanton, Andrews, and Gipson were conducting 

shakedowns in the segregation unit, Oliver, who was handcuffed, 

twice jerked away from Stanton while his cell was being 

searched, and that upon escorting Oliver back into the cell, 

Oliver turned quickly and kicked Stanton as he attempted a pat 

down of Oliver. In attempt to subdue Oliver and stop the 

assault, Stanton aggressively grabbed Oliver by his left arm, 

under his armpit, and forcefully pushed him down towards the 

bed, causing Oliver to hit his face and upper body on the bed 

and forcefully hit the ground on his left side. Broadhead 

squatted down and held Oliver’s feet and legs until he stopped 

resisting. At this point, Oliver was stood up and escorted to 

the medical unit by Kimbrel and Gibson. In the medical unit, 

Oliver complained “they busted my lip” and a minor abrasion to 

Oliver’s lip was noted on his body chart. Two days following 

the incident, Oliver was seen again in the health unit, and the 

nurse noted that he had bruises to his left side, including a 

swollen and black left eye, left neck bruises, left thigh 

bruises, and a loose tooth, resulting from Stanton’s grabbing 

Oliver’s left arm and forcefully pushing him towards the ground. 

As outlined supra, the force at issue involving the 

November 12, 2011 incident was Stanton’s grabbing of Oliver’s 

arm and forcefully pushing Oliver towards the ground, causing 

Oliver to hit his head and upper body on the bed and sustain 

injuries to his left side, in attempt to subdue Oliver after 

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Oliver kicked him. In order to establish an Eighth Amendment 

excessive force claim against Stanton regarding his forcefully 

pushing Oliver in order to stop Oliver’s assault, Oliver must 

prove both an objective and subjective component. That is, 

Oliver must show that the alleged wrongdoing was objectively 

“harmful enough” to establish a constitutional violation and 

that Stanton “‘act[ed] with a sufficiently culpable state of 

mind,’” i.e., that the defendant acted “maliciously and 

sadistically to cause harm.” Hudson, 503 U.S. at 7.

Subjectively, then, Oliver must establish that the “force 

was applied . . . maliciously and sadistically to cause harm[,] 

as opposed to being applied “in a good-faith effort to maintain 

or restore discipline[.]” Id. In the instant case, there is 

simply insufficient evidence that would support a finding that 

Stanton used force “maliciously and sadistically” for the 

purpose of causing harm. First, as found by the Use-of-Force 

investigation, there was need for application of some force in 

order to stop Oliver’s assault on Stanton. 

Indeed, James Maples, Oliver’s own witness testified that 

immediately prior to the incident, he twice observed Oliver jerk 

away when Stanton instructed him to stop yelling and remain 

still while his cell was being searched. Further, Gipson 

testified that due to Oliver’s propensity for violence, they 

often arranged triple escorts when Oliver needed to be moved 

within the facility. Under these circumstances, the court finds 

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that upon being kicked by Oliver, Stanton reasonably perceived 

the need for the application of force to restore discipline, and 

that the evidence is insufficient for a reasonable jury to find 

that the force used was unreasonable, malicious, or sadistic.

Second, the extent of Oliver’s injuries do not support a 

reasonable finding that the force used was used maliciously and 

sadistically. See Campbell v. Sikes, 169 F.3d 1353, 1375 (11th 

Cir. 1999). As noted, Oliver’s injuries were by and large on 

the left side of his body, consistent with Defendants’ testimony 

that Stanton took Oliver to the floor by placing his left hand 

under Oliver’s armpit. In the immediate aftermath of the take 

down, only a minor lip abrasion was apparent. Within two days, 

a swollen and black left eye, left neck abrasions, and left 

thigh bruises were noted. However, the fact that Oliver was 

escorted to the health unit immediately after the incident for 

treatment also undermines Oliver’s unsupported allegation that 

Stanton’s conduct was malicious or sadistic inasmuch as the 

officers took steps to immediately ensure that Oliver received 

prompt treatment for his injuries. Further, while Oliver 

testified that he believes the assault was motivated by the 

color of his skin because he had heard that some of the 

Defendants were “Klansmen” or “white supremacists,” the court 

takes note of the fact that like Oliver, Stanton is black, and 

that no one testified that the Defendants used any racial 

epithets or slurs during the incident in question.

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Turning to the objective component, Oliver’s documented 

injuries do not support a finding that Oliver was subjected to 

anything other than de minimis force, which is insufficient to 

establish a constitutional violation under the Eighth Amendment.

Cf. Johnson v. Moody, 206 F. App’x 880, 882 (11th Cir. 2006) 

(summary judgment proper where plaintiff failed to show that 

alleged wrongdoing was objectively harmful enough to establish a 

constitutional violation; evidence showed guard slammed tray 

door on inmate’s finger resulting in complaints of pain for six 

months and a cut for which inmate was given Motrin, a bandage, 

and a tetanus shot). Bearing in mind all of the factors 

enumerated above, the Court finds that the force used by Stanton

against Oliver was substantial, but it was not excessive. 

Therefore, Oliver’s Eighth Amendment excessive force claim fails 

as a matter of law.3

III. CONCLUSION

In sum, the credible evidence supports Defendants’ defense. 

Having resolved in Defendants Broadhead, Stanton, Gipson, 

Kimbrel, Tyus and Andrews’ favor the disputed account of their 

																																																							 3 To the extent Oliver contends that his ribs were injured during 

the November 12th incident, and that he was denied medical care 

because no X-ray was taken of his ribs, this claim must fail. 

The objective medical records and Oliver’s own medical requests 

immediately following the incident contradict his contention. 

Plus, there is nothing before the Court that suggests, let alone 

demonstrates, that Defendants were responsible for ordering an 

X-ray for Oliver. (Plaintiff’s Exs. No. 4, 7, 9).

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physical encounter with Oliver on November 12, 2011, the Court 

concludes that the record does not establish any 

constitutionally impermissible use of force and that Defendants 

are entitled to judgment as a matter of law. 

Accordingly, the undersigned RECOMMENDS that judgment be 

entered in favor of Defendants Broadhead, Stanton, Gipson, 

Kimbrel, Tyus, and Andrews and that this case be dismissed with 

prejudice. 

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 precedent, 

“the failure to object limits the scope of [] appellate review 

to plain error review of the magistrate judge’s factual 

findings.” Dupree v. Warden, Attorney General, State of Alabama,

715 F.3d 1295, 1300 (11th Cir. 2011). 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 

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refers to the briefing before the Magistrate Judge is not 

specific.

DONE this 3rd day of March, 2015.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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