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. This action was referred to the undersigned pursuant to 

28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4), and is now 

before the undersigned on Defendants’ Motion for Summary 

Judgment (Doc. 73)1 and Plaintiff’s Response thereto (Doc. 74). 

Upon consideration of the foregoing pleadings, and all other 

relevant pleadings in this file, the undersigned recommends that 

Defendants’ motion be GRANTED, in part, and be DENIED, in part, 

and that the remaining issue be set for an evidentiary hearing.

Specifically, Defendants’ motion is due to be GRANTED and 

Plaintiff’s claims arising out of the incident occurring on July 

10, 2011 and involving Defendants Shelton Forney, L. Bailey, K. 

																																																							

1 Defendants’ Answers and Special Reports (Docs. 48, 49, 53, 59 

70, and 72) were collectively converted into and treated as a 

motion for summary judgment.

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Reynolds, R. Armstrong, Johnny L. Johnson, C. Kimbrel, and 

Thaddeus Betts should be dismissed. Likewise, Defendant’s 

motion is due to be GRANTED, and Plaintiff’s claims arising out 

of the incidents occurring on August 24-25, 2011, and involving 

Defendants Johnny L. Johnson, C. Kimbrel, J. Broadhead, Earnest 

Stanton, A. Gipson, C. Daughtry, Russell Johnson, and Carroll

are due to be dismissed. Defendants’ motion is due to be DENIED 

however to the extent Defendants seek the dismissal of 

Plaintiff’s excessive force claims arising out of the incident 

occurring on November 12, 2011 and involving Defendants Kimbrel, 

Tyus, Andrews, Broadhead, Stanton and Gipson.

I. BACKGROUND

a. JULY 10, 2011

Plaintiff filed this action on July 18, 2011 (Doc. 1 at 

4), in the Middle District of Alabama. After the case was 

transferred to this district, Oliver filed several amended 

complaints, the last complaint, which is the operative one, was 

filed on August 21, 2012, pursuant to § 1983 action. (Doc. 28).

In his complaint, Oliver alleges that while incarcerated at 

Holman Correctional Facility (“Holman”), he was physically 

assaulted by prison officials on three separate occasions, 

namely July 10, 2011, August 24, 2011 and November 12, 20ll. 

(Doc. 28 at 5 – 11). 

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With respect to the July 10, 2011 incident, Oliver 

alleges that at approximately 12:15 a.m., while in the 

segregation unit at Holman, Defendant Sergeant C. Kimbrel, 

(hereafter “Kimbrel”) handcuffed him though the tray slot area 

of his cell to escort Oliver for a haircut. (Id., at 10). 

Kimbrel went into Oliver’s cell and threw away Oliver’s “Victory 

Magazine and a drawing”. (Id.). Oliver contends that he 

complained about Kimbrel’s action to Defendant Sergeant Johnny 

Johnson (hereinafter “J. Johnson”) and as Oliver sat into the 

chair for his haircut, J. Johnson began “hollering words of 

profanity” at him, punching him in face, and choking him 

numerous times. (Id.). Then, a “Code Red” was called and 

Defendants Kimbrel, Correctional Officer Reynolds (hereafter 

“Reynolds”), C.O. Thaddeus Betts (hereafter “Betts”), C.O. 

Shelton Forney (hereafter “Forney”), Sergeant L. Bailey

(hereafter “Bailey”), and C.O. R. Armstrong (hereafter 

“Armstrong”) came to assist. (Id.). Oliver contends that 

Kimbrel and Betts begin spraying his face with Sabre Red mace 

several times, until he began choking. (Id.). At this point, 

all of the guards began repeatedly punching and kicking Oliver 

until his chair flipped over. (Id.). Next, the guards started 

stomping, kicking, and punching him in all areas of his body. 

(Id.). Oliver contends that he pleaded with the guards for his 

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asthma inhaler and begged them not to reinjure his right arm, 

which had been broken several months earlier in an unrelated 

fight at another prison facility. (Id., at 11). Oliver asserts 

that despite his requests, the assault continued as the officers 

picked him up and “rammed” his head into the walls several 

times. (Id.). 

According to Oliver, Defendants Bailey and Armstrong 

“snatched [his] shower shoes” and his pants off and stated “you 

got a pretty booty” in agreement with one another. (Id.). 

Oliver asserts that when they arrived at the medical ward, Betts 

and Kimbrel took turns choking him until he began 

hyperventilating and fainting and ultimately, suffered an asthma 

attack. (Id., at 11-12). The officers then began shouting “die 

you fucking Mason – die you fucking Mobster, die you fucking 

B.G.D.N.!” (Id., at 12) (emphasis in original). The nurse then 

provided Oliver with a “brand new inhaler” and gave him “two 

puffs”. (Id.). Oliver asserts that cold water was run over his 

head and that a “chronic care visit and sick call” were 

conducted, which reflect that he suffered “lumps, bruises, 

swollen eyes, and cuts all over [his] body!” (Id.).

b. AUGUST 24-25, 2011

With respect to the August 24-24, 2011 incidents, Oliver 

alleges that on August 24, 2011, he and Defendant Carroll, who 

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was standing outside of Oliver’s segregation cell, engaged in a 

verbal dispute, and that Carroll left the cell cursing and 

saying that he was going to “whip [Oliver’s] ass”, and Oliver 

responded, “[n]ot by yourself you won’t – chump!” (Id.). Oliver 

asserts that Carroll returned to Oliver’s cell accompanied by 

Defendants J. Johnson, Russell Johnson (hereafter “R. Johnson”), 

C. Daughtry (hereafter “Daughtry”), Earnest Stanton (hereafter 

“Stanton”), Kimbrel, Anthony Gipson (hereafter “Gipson”), and J. 

Broadhead (hereafter “Broadhead”), and that J. Johnson opened 

Oliver’s tray slot and told the other guards to assist him in 

spraying Oliver with Sabre Red mace. (Id.). After six (6) 

bursts of the chemical were sprayed, Oliver began struggling to 

breathe and pleading with the officers to stop because he feared 

suffering an asthma attack. (Id., at 8-9). The officers 

administered three (3) more bursts of the chemical. J. Johnson 

then handcuffed Oliver as he was gasping for air. (Id., at 9).

According to Oliver, at that point, all of the officers 

began punching him repeatedly in the face, neck, and back. 

(Id.). Oliver contends that the guards “ramm[ed]” his head into 

the side panel of the doorway and repeatedly punched him in 

different parts of his body. (Id.). Oliver was then pushed down 

on the bed and his pants were snatched off. (Id.). Defendant 

Daughtry told Oliver to “suck his penis” and stated, “I bet you 

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don’t feel like a man now”. (Id.). Oliver responded, “go tell 

yo’ daddy sissyboy!” (Id.). The guards continued punching and 

stomping Oliver. (Id.). According to Oliver, the nurse rushed 

him his inhaler, and his asthma worsened after this incident. 

(Id.). 

Oliver further contends that later the same night, on 

August 25, 2011, his cell was “stripped down” and “fecal water”

was left on the floor. (Id.). Oliver contends that he was left 

in his cell for three (3) weeks with no “running water” and 

“flies and maggots [were] crawling in the fecal water that was 

on the floor”. (Id.). 

c. NOVEMBER 11, 2011

With respect to the November 11, 2011 incident, Oliver 

alleges that at approximately 3:00 a.m., Defendant Broadhead, 

who was accompanied by Defendants Stanton and Gipson, placed 

handcuffs on him for a cell search. (Id., at 3). Oliver 

contends that as he was standing outside of the cell, Stanton 

grabbed him by the back of his head and began repeatedly banging 

the front of his head against the outside wall. (Id.). 

Defendants Kimbrel, Sergeant K. Tyus, and Andrews joined the 

other three officials. (Id., at 7). The guards pushed Oliver 

onto a bed and snatched off his pants and boxers. (Id.). The 

men began choking and punching Oliver repeatedly while his hands 

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were still in handcuffs behind his back. (Id.). Oliver informed 

the men that he had asthma and was having trouble breathing and 

the men refused to stop the beating. (Id.). The guards then 

transported Oliver to the medical ward and continued to punch 

and kick him while on the elevator. (Id.). Oliver received “two 

puffs” for his asthma attack and “a brand new inhaler!” (Id., at 

7-8). According to Oliver, the next day, Nurse Debra Poindexter 

conducted a follow-up sick call and chronic care visit and 

documented the “damages done by the” prison guards, which 

included two black eyes, cuts, bruises, swelling, and a 

fractured right ribcage. (Id., at 8). 

d. PROCEEDINGS

In his complaint, Oliver names as Defendants: J. Johnson, 

Kimbrel, Betts, Tyus, Andrews, J. Broadhead, Stanton, Gipson, 

Daughtry, Carroll, Reynolds, R. Johnson, S. Forney, Armstrong, 

and Bailey and asserts claims of excessive force, deliberate 

indifference, negligence, wantonness, reckless endangerment, 

sexual harassment, and inhumane conditions. (Doc. 28, 4-5, 13-

17)2. 

																																																							

2 Oliver seeks damages in the amount of $2.3 million for each of 

the three incidents alleged in the complaint as well as a 

permanent restraining order which would require Defendants to 

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In their Answers and Special Report filed on April 18, 

2013, January 21, 2014, and January 31, 2014, Defendants deny 

Oliver’s allegations to the extent that he claims his rights 

were violated and that he was assaulted, and they assert the 

defenses of absolute and qualified immunity3, failure to state a 

																																																																																																																																																																																		

remain at least 100 yards from him for at least three (3) years, 

and a “triple black with sparkle-change color in day-then at 

night paint job: Rolls-Royce Ghost year 2013 fully paid w/ 

insurance paid for up to (3) three months worth.” (Doc. 28 at 

6). Plaintiff also seeks nominal damages because Defendants’ 

conduct allegedly caused his asthma condition to become more 

serious. (Id.). Finally, Plaintiff seeks court costs, 

attorney’s fees, and transportation for his witnesses, inmates 

James Maples and John E. White and Nurse Debra Poindexter. 

(Id.).

3 It is unclear from the Complaint whether Plaintiff is suing 

Defendants in their official capacities, individual capacities, 

or both. Thus, the Court will consider both. As state 

officials, Defendants are absolutely immune from suit for 

damages in their official capacities, see Harbert Int’l, Inc. v. 

James, 157 F.3d 1271, 1277 (11th Cir. 1998) (state officials 

sued in their official capacities are protected from suit for 

damages under the Eleventh Amendment). Defendants are not 

immune, however, from suit in their official capacities for 

prospective injunctive relief to end continuing violations of 

federal law. See Ex parte Young, 209 U.S. 123, 155-56 (1908); 

see also Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1336 

(11th Cir. 1999).

“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 (2002)). The Eleventh Circuit has made clear that the 

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claim, failure to exhaust administrative remedies, contributory 

negligence, self-defense, estoppel, preclusion of claims by the 

Prison Litigation Reform Act, no actionable injury, unclean 

hands doctrine, and assumption of risk by Plaintiff’s assault on 

officers. (Docs. 48, 49, 58, 70, 72). In support of their 

defenses, Defendants have submitted their affidavits, 

investigative and disciplinary reports concerning the incidents, 

and Oliver’s relevant medical records. (Docs. 48-1 – 48-14, 70, 

72).

On February 4, 2014, the Court ordered that Defendants’

Special Report and Answers be converted into a Motion for 

Summary Judgment, and afforded the parties an opportunity to 

submit a response in support of or opposition to the motion. 

(Doc. 73). On February 25, 2014, Oliver submitted a document 

entitled “Affidavits and Answer/Response” wherein he included a 

personal affidavit, an affidavit from inmate James Maples and an 

affidavit from inmate Ricky Gilland. (Doc. 74 at 1-17). The 

motion and response are now before the Court on review.

																																																																																																																																																																																		

defense of qualified immunity “is not available in cases 

alleging excessive force in violation of the Eighth Amendment, 

because the use of force ‘macliciously and sadistically to cause 

harm’ is clearly established to be a violation of the 

Constitution by the Supreme Court decisions in Hudson and 

Whitley.” Skritich v. Thorton, 280 F.3d 1295, 1301 (llth Cir. 

2002)(citation omitted). 

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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, 

247-248, 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.”)

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 admissions on file,’

designate ‘specific facts showing that there 

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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., 2013 U.S. 

Dist. LEXIS 28034, *5-7, 2013 WL 765314 (S.D. Ala. Jan. 29, 

2013) (citations omitted). 

In considering whether the Defendants in this case are 

entitled to summary judgment, the Court has viewed the material 

facts in the light most favorable to Oliver where there are 

genuine disputes. 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 metphysical doubt as to material facts.”

A “mere scintilla” of evidence is insufficient; the nonmoving 

party must produce substantial evidence in order to defeat a 

motion for summary judgment. Garczynski, supra, 573 F.3d at 1165 

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(internal citations omitted). 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 Fed. 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 adopted the 

contradicted allegations.” (citations omitted)).4

III. DISCUSSION

In this action, Oliver seeks redress pursuant to 42 U.S.C. 

§ 1983 for alleged constitutional deprivations arising out of

altercations between himself and several staff members at the 

																																																							

4 “Unpublished opinions are not considered binding precedent, but 

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

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Holman facility on July 10, August 24-25, and November 12, 2011. 

The Court addresses each incident in turn. 

a. JULY 10TH INCIDENT

As best the Court can discern, with respect to the July 10 

incident, Oliver alleges that Defendants J. Johnson, Broadhead, 

Kimbrel, Betts, Forney, Bailey, Reynolds and Armstrong used 

excessive force against him.

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 (llth Cir. 1999). In order to 

establish an Eighth amendment excessive force claim against 

Defendants, Oliver 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, 117 L. Ed. 2d 156 & 8, 

112 S. Ct. 995, 999, 117 L. Ed. 2d 156 (1992) (citations 

omitted).

Subjectively, Oliver must establish that “force was 

applied. . .maliciously and sadistically to cause harm[,]” as 

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

restore discipline[.]” Hudson, supra, 503 U.S. at 7; 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 

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 (citing

Whitley, 475 U.S. at 321); 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.”). 

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Before analyzing Oliver’s claims, the Court has engaged in 

an exhaustive review of the record, including the medical 

records, statements by all involved parties and witnesses, 

incident reports, Use-of-Force investigation reports, and 

disciplinary hearings, records, and reports, and finds that 

Oliver’s assertions regarding the July 10th incident are

contradicted by the record evidence. 

Not surprisingly, Defendants, through sworn affidavits, 

dispute Oliver’s version of the July 10th incident5. (Docs. 48-2, 

48-3 48-4, 48-5, 48-6, 48-7, 70, 72). Defendants contend that 

on July 10, 2011, Oliver was confined to segregation and had at 

least one prior disciplinary infraction involving threats and an 

assault against officers although he had only been in ADOC 

custody for eight (8) months at the time. (Doc. 48-1 at 3-4). 

According to Defendants, Oliver became upset because officer

Kimbrel, who had come to take Oliver to receive a haircut,

removed papers from Oliver’s cell that had been covering his 

observation window, in violation of segregation policy. (Doc. 48

at 4; Doc. 48-2 at 2). When Oliver reached the area for his 

haircut, he complained about the removal of the papers and began 

																																																							

5 Defendants J. Johnson, Broadhead, Kimbrel, Betts, Forney, 

Bailey, Reynolds and Armstrong, submitted affidavits that 

directly dispute Oliver’s version of the July 10th incident. 

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to engage in threatening and aggressive conduct. Officer J. 

Johnson warned Oliver that threats would not be tolerated, 

whereupon, Oliver attempted to aggressively stand up. In 

response, J. Johnson restrained Oliver in his seat. (Doc. 48-4 

at 1-2, Doc. 72). Oliver then kicked J. Johnson in his shin and 

spat on J. Johnson’s chest. (Id.). J. Johnson attempted to 

place his left hand on Oliver’s shoulder to prevent him from 

getting up, but Oliver continued to attempt to get up. Other 

officers arrived on the scene. Officer Betts administered a 

one-second burst of Sabre Red and Officers Broadhead and Betts 

then took Oliver to the ground. (Id.). At that time, all force 

ceased and Oliver was taken to the Health Care Unit where the 

medical staff examined Oliver and completed a body chart, which 

indicates no injuries. Also, officer Bailey took photographs of 

Oliver’s body (Id., at 5)6. After leaving the Health Care Unit, 

Oliver was returned to the area for his haircut, which was 

completed without incident. (Id., at 5-6).

The medical records from July 10, 2011 reflect that Oliver 

reported that his face was burning, and that he had been pepper 

sprayed. The medical records also reflect that Oliver 

																																																							

6 Defendants submitted a number of pictures taken of Oliver’s 

body immediately after all three incidents. The pictures are 

grainy and difficult to make out; thus they are of little value.

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complained of arm pain, but he had no cuts or abrasions or signs 

of trauma. (Doc. 48-1 at 11). Further, a couple of hours after 

the incident, an incident report was generated which reflects

that at 12:15 a.m. on July 10, 2011, after being released from 

his segregation cell M-26, Oliver became upset because officer 

Kimbrel had removed the paper that he was using to cover the 

observation window to his cell. (Doc. 48-1). The report 

reflects that Oliver stated “You fucking bitches got no right to 

go in my cell and take off my window!”. And “I ain’t scare of 

yall! I’ll take all of ya’ll down. I am an ex-convict.!” (Id.).

When Oliver was seated in the shower area to await his haircut, 

Sargent J. Johnson began to counsel Oliver that threatening 

officers would not be tolerated, and in response, Oliver began 

with the threats again, and aggressively attempted to stand up. 

At that point, J. Johnson restrained Oliver and Oliver 

kicked J. Johnson in his right shin and spit on his chest. As 

J. Johnson attempted to restrain Oliver with his right hand and 

to turn Oliver’s head away from him, Oliver became more violent 

and repeatedly kicked his legs and attempted to get out of the 

chair into a standing position. Officer Betts administered a 

one second burst of chemical agent “Sabre Red” to Oliver’s 

facial area and both officers Betts and Broadhead took Oliver to 

the ground to gain control of him. Immediately after the 

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incident, Oliver was taken to the Health Care Unit for 

decontamination and medical assessment. Oliver was treated by 

Nurse Billy Booker and pictures were taken of him. Oliver was 

taken back for his regulation haircut, which he received without

further incident. The report reflects that statements were 

taken from officers Broadhead and Betts, but Oliver refused to 

give a statement. (Doc. 48-1 at 5-8).

The record also contains a Use-Of-Force Investigative 

Report dated July 14, 2011 and prepared by Captain William 

Howard. (Doc. 48-1 at 8). In the Investigative Report, Captain 

Howard found that on October 11, 2011, Oliver had become 

combative and kicked Sargent J. Johnson in the right shin and 

spit on him, that a one second burst of Sabre Red was 

administered to Oliver’s face area, that Oliver was taken to the 

ground to gain control of the situation, and that the use of 

force was necessary to maintain control over Oliver and to 

complete the task of his haircut, as well as escort him to the 

Health Unit. (Doc. 48-1).

The record reflects that Oliver was charged with assaulting 

a correctional official (rule #29) and making threats (rule # 

44), and disciplinary hearings ensued. (Doc. 48-1 at 14-28) The 

hearing on the charge of making threats was conducted on July 

19, 2011 at 5:40 a.m. (Doc. 48-1 at 14). At the hearing, Oliver 

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testified that Kimbrel took something out of his room (a 

newspaper and a drawing) and that when he told J. Johnson about 

the problem, J. Johnson told him to shut the fuck up and hit him 

in the face while he was in handcuffs, and that they all started

beating him. Ricky Gilland, an inmate, appeared as Oliver’s 

witness. He testified that he did not see anything-that he was 

getting his hair cut. He also testified that he did not see him 

making any threats, and that he just saw them fighting, and then 

they carried him off. (Doc. 48-1 at 15).

J. Johnson testified that he and Kimbrel were supervising 

haircuts on M-Tier, and that when Oliver came in and sat in the 

chair to get his haircut, he stated that “that bitch went and 

took paper out of my window. Ya’ll gonna quit fuckin with me or 

I’m gonna start getting at ya’ll. J. Johnson testified that he 

instructed Oliver to stop making threats, and that Oliver 

stated, in a threating tone, that “I ain’t scared of ya’ll. 

I’ll take all of ya’ll down, I’m an ex-convict. (Doc. 48-1 at 

15). In his final written statement to the hearing officer, 

Oliver asserts that “There was no apparent threat made to [Sgt.] 

Johnny L. Johnson or his staff! There was no need to force Mr. 

Oliver in a chair, punch him, or spray him with chemical agent!”

(Id., at 18).

 At the conclusion of the hearing, the hearing officer found 

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that Oliver did make threatening statements towards officers J. 

Johnson and Kimbrel and recommended 30 days disciplinary 

segregation. The Warden approved the hearing officer’s 

recommendation. (Id., at 16). 

The record reflects that a hearing on the charge of 

assaulting a correctional official was conducted on July 28, 

2011, at 3:45 a.m. (Id., at 22). J. Johnson testified that 

Oliver became aggressive and attempted to get up from his chair 

while he was being counseled about his threatening behavior 

towards the officers. J. Johnson testified further that as he 

attempted to restrain Oliver, Oliver kicked him in the right leg 

and attempted to get up again. According to J. Johnson, as he 

continued to restrain Oliver, Oliver spat on him in his chest 

area. At that point, Betts administered the chemical agent 

“Sabre Red” in order to end Oliver’s behavior. (Id.).

The hearing report reflects that Oliver was removed from 

the hearing due to his “extremely disruptive behavior”; however, 

he was given and took advantage of an opportunity to submit 

written questions and a written statement. (Id., at 26-28). In 

his final written statement, which was submitted mere days after 

the July 10th incident, Oliver asserts that “Not only did [J.

Johnson] step out of bounds as a[n] officer by so called being a 

mental health counselors, but he also put his hands on Mr. 

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Oliver in a threatening manner as he stated in his disciplinary 

actions numerous amounts of times!” (Id.). In his second 

written statement regarding the July 10th incident, Oliver 

asserted that he was poked in the nose several times, punched in 

the head, choked, stomped and his head was rammed into the brick 

wall going towards the health unit. Inmate Ricky Gilland’s 

testimony from the first hearing was provided to the hearing 

officer. (Doc. 48-1 at 23). The hearing officer concluded that 

on July 10, 2011, that Oliver had violated rule #29-Assault on 

Person(s) associated with ADOC by kicking J. Johnson in the 

right leg and spitting on him in his chest area. The hearing 

officer’s recommendation of 45 days disciplinary segregation and 

loss of privileges was approved by the warden. (Id., at 24).

The undersigned finds that the incident report, use of 

force investigation, medical report, disciplinary hearing 

records, including Oliver’s first final written statement 

regarding the July 10, 2011 incident, flatly contradict his 

later versions of the facts. Indeed, when Oliver was taken to 

the medical unit, immediately following the incident, not only 

were no injuries or distress observed, but Oliver reported that 

he had been pepper sprayed, and that he had right hand pain, 

both of which are consistent with Defendant’s version of the 

facts. Further, the records reflect and Oliver does not dispute 

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that after leaving the medical unit, officers returned him to 

the area for his haircut, and his hair was cut without further 

incident. (Id., at 8). 

Also telling is the fact that nowhere in the medical report 

or disciplinary hearing records, including Oliver’s first final 

written statement regarding the July 10, 2011 incident, does 

Oliver deny that he kept attempting to stand up, or that he 

kicked and spit on officer Johnson 7 . Additionally, these 

documents do not obtain any assertion by Oliver that his pants 

were pulled off during the July 10th incident and that he was 

sexually taunted8. Further, while Oliver’s witness inmate Ricky 

																																																							

7 In fact, in his written submission for the hearing, Oliver 

pointed out that he is a Marine Vet and capable of handling 

himself against J. Johnson. (Doc. 48-1 at 20). 

8 In fact, although Oliver relates three instances (namely July 

10, 2011, August 24, 2011, and November 11, 2011) in which his 

pants were allegedly “snatched off”, and he was told “you got a 

pretty booty” (on July 10th) and “suck my penis” (on August 24th), 

the disciplinary records, including Oliver’s testimony, and his 

hand written statements and questions, are completely devoid of 

any assertions by him that his pants were “snatched off” or that 

he was subjected to sexual taunting. Moreover, even viewing 

Oliver’s assertions in the light most favorable to him, they do 

not establish harassment that was severe and pervasive. With 

respect to Defendants Bailey and Armstrong, Oliver only 

identifies one instance on July 10, 2011 when they allegedly 

snatched off his pants and made sexual statements. Likewise, 

Oliver only identifies one instance, August 24, 2011, when 

Defendants Daughtry and Kimbrel allegedly pulled off his pants 

and made sexual remarks. With respect to the remaining 

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Gilland denied hearing Oliver make a threat, inmate Gilland did 

not and has not offered any testimony disputing Defendants’

assertion that Oliver kept attempting to stand up, and that he 

kicked and spit on Officer Johnson9 . Thus, Oliver’s version of 

the facts are rejected to the extent they are contradicted by 

the record evidence10 . See Vicks v. Knight, 380 Fed. App’x 847, 

																																																																																																																																																																																		

Defendants, while Oliver contends that his pants were snatched 

off on November 11, 2011, he has not identified who snatched off 

his pants, or engaged in sexual taunting. Accordingly, he has 

failed to establish that any of the Defendants engaged in sexual 

harassment that can be deemed severe and pervasive. Boxer X v. 

Harris, 437 F.3d 1107, 1111 (11th Cir. 2006)(“[S]evere or 

repetitive sexual abuse of a prisoner by a prison official can 

violate the Eighth Amendment.”) Boddie v. Schnieder, 105 F.3d 

857, 860-61 (2d Cir. 1997)(finding prisoner’s allegations that 

he was “verbally harassed, touched, and pressed against without 

his consent” were insufficient to satisfy the objective element 

of his attempted § 1983 sexual abuse claim), Allen v. McDonough, 

2011 U.S. Dist. LEXIS 107984, at *14 (N.D. Fla. Aug. 17, 2011) 

(collecting cases in support of the proposition that isolated 

incidents of non-severe sexual harassment are not sufficient to 

meet the cruel and unusual punishment standard).

9 The undersigned observes that Oliver filed two Gilland 

affidavits. The affidavits, which are clearly in Oliver’s 

handwriting, and essentially repeat allegations made in Oliver’s 

complaints, are not consistent with Gilland’s hearing testimony. 

Moreover, nowhere in the affidavits does Gilland deny Defendants’ 

allegations that Oliver kept attempting to stand up, and that he 

kicked and spit on Officer Johnson. (Docs. 29 at 1-3, 74 at 15-

17).

10 Moreover, Oliver’s claim that Stanton and Armstrong took his 

shower shoes and he never got them back fails to state a due 

process claim because a post-deprivation remedy was available to 

him at the time of the alleged seizure of his property. Hudson v. 

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852 (llth Cir. 2010) (when resolving factual disputes in summary 

judgment motions, a district court may ignore the plaintiff’s 

version of the facts when it is clearly contradicted by the 

other evidence of record, including the defendants’ affidavits, 

incident reports, and medical records.); Scott v. Harris, 550 

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

opposing parties tell two different stories, one of which is 

blatantly contradicted by the record so that no reasonable jury 

could believe it, a court should not adopt that version of the 

facts for purposes of ruling on a motion for summary 

judgment.”).

As indicated, in order to establish an Eighth Amendment 

claim against the Defendants, Oliver must prove both an 

objective and subjective component. That is, he must show that 

the alleged wrongdoing was objectively “harmful enough” to 

																																																																																																																																																																																		

Palmer, 468 U.S. 517, 533, 104 S. Ct. 3194, 82 L. Ed. 2d 393 

(1984)(“[W]e hold that an unauthorized intentional depravation 

of property by a state employee does not constitute a violation 

of the procedural requirements of the Due Process Clause of the 

Fourteenth Amendment if a meaningful postdeprivation remedy for 

the loss is available. For intentional, as for negligent 

deprivations of property by state employees, the state action is 

not complete until and unless it provides or refuses to provide 

a suitable postdeprivation remedy”). Oliver has an available 

remedy in a tort action for this alleged deprivation. Dawson v. 

City of Mongtomery, 2008 US. Dist. LEXIS 19833, 2008 WL 6599800 

(M.D. Ala. Mar. 6, 2008).

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establish a constitutional violation and that Defendants

“act[ed] with a sufficiently culpable state of mind,” i.e., that 

they acted “maliciously and sadistically to cause harm.” Hudson 

v. McMillian, 503 U.S. 1, 7-8, 112 S. Ct. 995, 117 L. Ed. 2d 156 

(1992). 

Turning first to the subjective element of Oliver’s claims, 

the Court adopts Defendants’ version of the facts as the medical 

records, incident report and disciplinary records contradict 

Oliver’s version of the facts surrounding the July 10th incident 

and confirm Defendants’ version. See Vicks, 380 Fed. App’x at

852; Scott, 550 U.S. at 380. Thus, the force in question is J. 

Johnson’s grabbing of Oliver by the shoulder, forcing him in the 

chair, and securing of Oliver’s chin, as well as Betts’

administering of a burst of Sabre-Red to Oliver’s face and 

working with Broadhead and Armstrong to take Oliver to the 

ground in an attempt maintain security.

In Hudson, the Supreme Court recognized that, whenever 

guards use force to keep order, they “must balance the need ‘to 

maintain or restore discipline’ through force against the risk 

of injury to inmates.” Hudson, 503 U.S. at 6 (quoting Whitley v. 

Albers, 475 U.S. 312 (1986)). Thus, “the core judicial inquiry 

is . . . whether force was applied in a good-faith effort to 

maintain or restore discipline, or maliciously and sadistically 

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to cause harm.” Id. In making this determination, the Court 

considers the need for the application of force, the 

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

threat reasonably perceived, any efforts to temper the severity 

of a forceful response, and the extent of injury suffered. Id., 

503 U.S. at 7 (citing Whitley, 475 U.S. at 321).

Before the application of any force by Defendants on July 

10, 2011, Oliver was upset that Kimbrel had removed the magazine 

and drawing that Oliver had covering his window. When J. 

Johnson attempted to counsel Oliver, he attempted to stand up 

from his chair. J. Johnson then tried to force Oliver back in 

his chair, and Oliver proceeded to kick and spit on J. Johnson. 

At that point, J. Johnson attempted to restrain Oliver by 

grabbing his chin and Oliver began aggressively kicking and 

trying to get up from the chair. So, a “Code Red” was called 

and Betts, and several other officers, rushed to the scene, and 

Betts sprayed Oliver with Sabre Red. Betts, Broadhead, and 

Armstrong worked together to gain control of the situation by 

taking Oliver to the ground. (Doc. 48-1 at 14, 22-23). 

Given these facts, J. Johnson could have reasonably 

believed that Oliver’s behavior in attempting to stand up from 

the chair was a threat to prison order and discipline and could 

have reasonably believed it necessary to use some measure of 

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force to subdue him. Thus, J. Johnson’s grabbing Oliver and 

forcing him back in his chair was justified under the 

circumstances as the nature of the altercation indicates that 

the force was applied in “a good-faith effort to maintain or 

restore discipline,” not “maliciously and sadistically to cause 

harm.” Hudson, 503 U.S. at 6. The same holds true for J. 

Johnson’s grabbing Oliver’s chin in efforts to restrain him. 

Likewise, Betts, Broadhead, and Armstrong were justified in 

their role in the altercation as they were responding to the 

“Code Red”, which was called after Oliver kicked J. Johnson in 

the shin and spat on his chest, and began kicking and 

aggressively resisting J. Johnson’s control. These facts 

indicate that once Betts arrived to answer the “Code Red”, he 

could have reasonably believed that the Sabre Red was necessary 

to subdue Oliver and that Betts, Broadhead, and Armstrong also 

held the beliefs that their force was necessary to restrain 

Oliver who was continuing to resist the officers’ control. 

Particularly in the state of the “Code Red” in the segregation 

unit, such force is indicative of the Defendants’ “good-faith 

effort to maintain or restore discipline”. Id. Thus, Oliver has 

failed to establish the subjective element of his Eighth 

Amendment claim. 

Assuming arguendo, that Oliver has established that the 

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Defendants’ alleged conduct, in spraying, stomping and beating 

him, were, in fact, malicious, he has failed to show that 

Defendants’ application of force was objectively “harmful 

enough” to establish a constitutional violation. 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 (S.D. Ala. September 

20, 2000) (unpublished) (quoting Hudson, 503 U.S. at 9-10). 

Indeed, “‘[n]ot every push or shove, even if it may later seem 

unnecessary in the peace of a judge’s chambers, violates a 

prisoner’s constitutional rights.’” Hudson, 503 U.S. at 9 

(citations omitted). The objective component of an Eighth 

Amendment excessive force claim “necessarily excludes from 

constitutional recognition de minimis uses of physical force, 

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

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

Whitley, 475 U.S. at 327). 

While the Supreme Court in Hudson did not define “de 

minimis use of force,” it did hold that neither “serious” nor 

“significant” injury is required to satisfy the objective 

component of an Eighth Amendment claim, nor is any arbitrary 

quantum of injury an absolute requirement of an excessive force 

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claim, apparently out of concerns that certain forms of torture 

are capable of inflicting extreme pain without leaving any mark 

or tangible injury. 503 U.S. at 9 (“Otherwise, the Eighth 

Amendment would permit any physical punishment, no matter how 

diabolic or inhuman, inflicting less than some arbitrary 

quantity of injury.”). At the same time, the court suggested 

that the degree of injury received is relevant to determining 

whether more than de minimis force was used. See Id., 503 U.S. 

at 10 (blows causing bruising, swelling, loosened teeth and a 

cracked dental plate do not constitute a de minimis use of 

force). 

In the present case, there are no allegations of torture 

designed to inflict extreme pain without leaving tangible injury 

or conduct that otherwise is so egregious that one could 

reasonably call it repugnant to the conscience of mankind. 

Therefore, if Oliver suffered only de minimis injuries that

would be an important factor in determining whether more than de 

minimis force was used.

Based on the evidence before the Court, the undersigned 

finds that the force used on July 10th was de minimis. 

Plaintiff’s medical records show that, when he was examined at 

the prison infirmary immediately after the incident, there were 

no marks, bruises, or injuries of any kind anywhere on his body, 

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and he reported only that “my face is burning...I have been 

pepper sprayed” and complained of pain to his arm that had been 

broken a few months earlier at another facility. (Doc. 48-1 at 

11). Additionally, Oliver does not dispute that after leaving 

the infirmary, he was returned to the haircut area and had his 

hair cut without incident. Further, there are no medical 

records evidencing any subsequent disability or infirmity 

arising from the incident. Accordingly, the undersigned finds 

that Oliver has failed to establish a constitutional claim based 

on the amount of force used by Defendants on July 10, 2011. 

b. AUGUST 24-25, 2011 INCIDENT

As outlined supra, Oliver alleges that on August 24, 2011, 

he engaged in a verbal dispute with Defendant Carroll, that 

Carroll left Oliver’s cell stating that he was going to “whip 

[Oliver’s] ass” and he returned with J. Johnson, R. Johnson, 

Daughtry, Stanton, Kimbrel, Gipson, and Broadhead, all of whom

began repeatedly spraying, punching, kicking, and stomping 

Oliver, and ramming his head into the walls. (Doc. 28 at 8). 

Oliver contends that on the same night, his cell was “stripped 

down” and “fecal water” was left on the floor where he was left 

for three (3) weeks with no “running water” and “flies and 

maggots [were] crawling in the fecal water that was on the 

floor”. (Id.).

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Before analyzing Oliver’s claims, the Court engaged in an 

exhaustive review of the record, including the medical records, 

statements by all involved parties and witnesses, incident 

reports, and Use-of-Force investigation reports, regarding the 

August 24-25 incidents. Based on said review, the Court rejects 

Oliver’s version of the facts to the extent that he claims that 

he was repeatedly punched, kicked, stomped, and sprayed, and 

that his head was rammed against the wall several times, as his 

version is overwhelmingly contradicted by the other evidence of 

record. See Vicks, 380 Fed. App’x at 852; Scott, 550 U.S. at 380. 

Not surprisingly, affidavits from J. Johnson, Kimbrel, Broadhead,

Stanton, Gipson, Daughtry, R. Johnson, and Carroll directly 

conflict with the version of events that Oliver sets forth in 

his complaint and affidavit. (Docs. 48-2, 48-3, 48-8, 48-9, 48-

10, 48-11, 72). 

More importantly, the Incident Reports, Use-of-Force 

investigation report and medical records contradict Oliver’s 

version of the August 24-25 incident. (Doc. 48-1 at 29-31). The 

incident report was generated on August 24, 2011, a little over 

an hour after the incident. The report reflects that R. Johnson, 

Carroll, Stanton, and Broadhead were conducting searches of the 

K-tier at 10:30 pm., and that when R. Johnson requested Oliver 

to come to the door so that restraints could be applied, he 

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responded “Why you fuckin with me?”. When R. Johnson instructed 

him a second time, he responded “I ain’t cuffin’ up for no 

shakedown”, grabbed a cup of an unknown substance, started to 

move towards the cell, and threaten to throw the contents on R. 

Johnson. At that point, R. Johnson administered a one second 

burst of chemical agent Sabre Red mace into Oliver’s facial area 

in accordance with Administrative Regulation #312, and Oliver 

dropped the cup. R. Johnson secured the tray door and notified 

J. Johnson of the incident via two-way radio. J. Johnson, Craft 

and Kimbrel responded. After questioning R. Johnson, J. Johnson 

instructed R. Johnson to leave the area. J. Johnson then 

instructed Oliver to come to the door to be escorted to the 

Health Unit for decontamination. Oliver was handcuffed and 

taken to the Health unit for assessment. Oliver was assessed 

and photographed. Before his return, Oliver’s cell was searched, 

and a large quantity of trash was removed. Also, the cup was 

recovered, and it smelled of urine. Oliver was returned to cell 

K-56 without incident. The incident report reflects that Oliver 

declined to provide a written statement. (Doc. 48-1 at 29).

The record also contains a Use-Of-Force Investigative 

Report that was completed by Captain James Power on August 25, 

2011 at 12:18 p.m. (Doc. 48-1 at 31). Powers found, after an 

extensive review of the incident report and interviews, that on 

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August 24, 2011, at approximately 10:30 p.m., Oliver had refused 

R. Johnson’s repeated directives to come to the door to be 

handcuffed for a cell search, and at one point, came towards him 

with a cup filled with an unknown substance. In response, 

Oliver administered a one-second burst of Sabre Red to Oliver’s 

facial area, and he ceased his aggressive behavior. J. Johnson 

was notified and he arrived at Oliver’s unit with Kimbrel and 

Craft. R. Johnson was instructed to leave the area. After 

being instructed by J. Johnson to come to the cell door to be 

handcuffed, Oliver complied. He was escorted to the health care 

unit for a medial assessment, and upon completion, was escorted 

back without incident. Powers concluded that the force was 

justified. (Id.).

The record also contains an incident report dated August 

25, 2011. (Doc. 48-1 at 36). In the report, it was reported 

that when R. Johnson passed by Oliver’s segregation cell K-56, 

he observed a large quantity of water coming from under the cell 

door. Upon approaching the area, he observed Oliver repeatedly 

flushing the toilet and causing water to overflow into the cell 

and the tier. R. Johnson reported the incident to J. Johnson by 

telephone and was instructed to cut the water to the cell off to 

prevent further flooding. J. Johnson in turn notified Craft and 

Kimbrel who reported to the area. Kimbrel handcuffed Oliver, 

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and he along with Stanton, Daughtry, and Broadhead escorted 

Oliver to the Health Care Unit for medical assessment. The 

incident was reported to Captain Power who determined that 

Oliver would be placed in a stripped cell status in accordance 

with standard operating procedure #009-017. As a result, 

Oliver’s property was secured in stored property room, and a 

Water Allowance Sheet was initiated. (Id.). The record also 

reflects that a few months prior to this incident, in May 2011, 

Oliver was recommended for a mental health review because he 

“[t]hrew cups or urine in other inmates cells.” (Doc. 48-14 at 

16).

Further, Oliver’s medical records and his own statements to 

the medical personnel directly contradict his version of the 

events and fail to support any claims related to the alleged 

physical abuse. (Doc. 48-1 at 33). In his complaint, Oliver 

contends that he was repeatedly punched, kicked, and stomped in 

his face and different parts of his body, and that his head was 

rammed against the panel of the doorway several times, by nine 

(9) prison guards. 11 (Doc. 28 at 8-10). And, Oliver contends

																																																							

11 While Oliver’s amended complaint alleges, on four (4) separate 

occasions, that the incident involved nine (9) prison guards 

(Doc. 28 at 8-10), in Oliver’s response to Defendants’ summary 

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that he was maced several times and as a result, he suffered an 

asthma attack and was rushed a new inhaler by the medical staff. 

(Id.). Yet, in a medical assessment immediately following the 

incident, Oliver reported to the medical personnel only that 

“[t]hey sprayed me & mace in my cell”. (Doc. 48-1 at 33). 

Additionally, while Oliver contends that his head was repeatedly 

rammed against the doorway panel and he was repeatedly punched, 

kicked, and stomped by nine (9) guards, the medical records

immediately following the incident reflect that Oliver was in no 

distress, his vital signs were normal, his body chart was clear, 

and no injuries were noted. (Id.). Additionally, other than 

Oliver’s eyes being reddened from the guards’ use of Sabre Red, 

no lumps, bruises, tenderness, redness, or open wounds were 

noted on Oliver’s body chart to corroborate Oliver’s version of 

the events. (Id.). 

In addition, the record reflects that on the next day, 

August 25, 2011, Oliver submitted a medical request form and his

statements on the medical request form directly contradict his 

version of the event. (Doc. 48-10 at 10). While Oliver contends 

that he was sprayed with pepper spray until he suffered an 

																																																																																																																																																																																		

judgment motion, Oliver contends that the incident only involved 

eight (8) guards. (Doc. 74 at 6-7).

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asthma attack and was rushed an inhaler by the medical staff, in 

the medical request form that Oliver submitted on August 25, 

2011, Oliver stated, “[l]ast night 8-24-11 during a cell search 

Sergeant C. Kimbrel took my inhaler! I need another one” (Doc. 

48-14 at 10). This clearly contradicts his assertion that on 

the 24th, he suffered a life-threatening asthma attack that 

required that medical staff rush him a new inhaler, which he 

kept that night. Additionally, while Oliver contends that he 

was repeatedly punched, stomped, kicked, and his head was rammed 

against the door several times, on the same medical request 

form, in addition to the request for an inhaler, Oliver stated, 

“I’m experiencing minor pain in my left arm which was broken in 

Jan. 2011! Need an arm guard. My top portion of my cranium 

(head) [is] severely itching for about 3 weeks & I’m unsure 

why.” (Id.) (parentheses in original; emphasis added). 

Oliver’s own medical request form contradicts his version 

of the events, particularly his contention that he was severely 

beaten by nine (9) guards who repeatedly punched, kicked, 

stomped, and rammed his head into the wall several times; yet, 

only a few hours later, the only medical complaints Oliver lists 

are his need for a new inhaler for his chronic asthma condition, 

an itchy scalp for about three (3) weeks, and lingering “minor”

pain from his arm that was broken six (6) months earlier. 

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Oliver fails to complain of any pain, soreness, swelling, or 

bruising from the alleged punches, kicks, stomps, and ramming of 

his head into the door by the nine (9) guards. As this 

evidence, along with the overwhelming record evidence outlined 

supra, clearly contradicts 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, that 

his head was rammed into the doorway several times, and that he 

was sprayed with Sabre Red until he suffered an asthma attack, 

as a reasonable fact-finder could not believe Oliver’s version 

of the facts. See Vicks, 380 Fed. App’x at 852; Scott, 550 U.S. 

at 380.

i. EXCESSIVE FORCE

As outlined supra, the force at issue involving the August 

24, 2011 incident was R. Johnson’s administering of the Sabre 

Red spray to Oliver’s face when Oliver threatened to throw the 

liquid substance on him. In order to establish an Eighth 

Amendment excessive force claim against R. Johnson regarding his 

administration of a one-second burst of Sabre Red pepper spray, 

Oliver must prove both an objective and subjective component. 

That is, Plaintiff must show that the alleged wrongdoing was 

objectively “harmful enough” to establish a constitutional 

violation and that R. Johnson “‘act[ed] with a sufficiently 

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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 

R. Johnson 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 because of Oliver’s

refusal to follow R. Johnson’s orders to submit to handcuffs in 

order to conduct a shakedown of his cell. Compare Danley v. 

Allen, 540 F.3d 1298, 1303 (11th Cir. 2008) (“[P]epper spray is 

an accepted non-lethal means of controlling unruly inmates . . . 

.”), overruled on other grounds as recognized by Randall v. 

Scott, 610 F.3d 701 (11th Cir. 2010), with Soto v. Dickey, 744 

F.2d 1260, 1270 (7th Cir. 1984) (“[I]t is a violation of the 

Eighth Amendment for prison officials to use mace or other 

chemical agents in quantities greater than necessary or for the 

sole purpose of punishment or the infliction of pain. . . . The 

use of mace, tear gas or other chemical agent of the like nature 

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when necessary . . . to subdue recalcitrant prisoners does not 

constitute cruel and inhumane punishment. . . . The ‘use of the 

substance [] in small amounts may be a necessary prison 

technique if a prisoner refuses after adequate warning to move 

from a cell or upon other provocation presenting a reasonable 

possibility that slight force will be required.’”), cert. 

denied, 470 U.S. 1085, 105 S. Ct. 1846, 85 L. Ed. 2d 144 (1985).

Second, given the need for force, the Court finds that the 

evidence is insufficient for a reasonable jury to find that the

administration of a one-second burst of pepper spray was 

unreasonable, malicious, or sadistic. Third, the extent of the 

injury also in no way supports a reasonable finding that the 

force used was used maliciously and sadistically. See Campbell 

v. Sikes, 169 F.3d 1353, 1375 (11th Cir. 1999). Oliver

sustained only temporary redness and burning of his eyes, which 

were admittedly flushed of the pepper spray on the date of the 

“injury.” 

Finally, the fact that Oliver was immediately escorted to 

the Health Care Unit immediately after the administration of the 

pepper spray for treatment also undermines Oliver’s unsupported

allegation that R. Johnson’s conduct was malicious or sadistic 

inasmuch as the officers took steps to immediately ensure that 

Oliver received prompt treatment for his relatively minor 

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injuries.

Turning to the objective component, the alleged injuries 

suffered by Oliver are de minimis. Oliver’s eyes and face were 

immediately cleaned in the Health Care Unit after R. Johnson’s

administration of a one-second burst of pepper spray and Oliver 

sustained no injury to the eyes cause by the pepper spray.

These de minimis eye injuries, as well as all other facts and 

circumstances heretofore explored, establish that R. Johnson’s 

administration of a one-second burst of pepper spray into the 

area of Oliver’s face constitute no more than a de minimis use 

of force. Cf. Wilkins v. Gaddy, 559 U.S. 34, 37, 130 S. Ct. 

1175, 1178, 175 L. Ed. 2d 995 (2010) (“Injury and force, 

however, are only imperfectly correlated, and it is the latter 

that ultimately counts.”). Thus, Oliver’s claims are 

insufficient to establish a constitutional violation under the 

Eighth Amendment.

ii. CONDITIONS OF CONFINEMENTS 

Oliver also alleges that the Defendants violated his Eighth 

Amendment rights by confining him in a strip cell for three (3) 

weeks and depriving him of his personal property and running 

water. (Doc. 28 at 9). The undisputed evidence shows that 

Oliver’s cell was stripped on August 25, 2011, after he 

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repeatedly flushed the toilet and caused the water to overflow 

in his cell and flood the tier. (Docs. 48-1 at 37; 48-10).

As discussed above, an Eighth Amendment claim has two 

components, “an objective component, which inquires whether the 

alleged wrongdoing was objectively harmful enough to establish a 

constitutional violation, and a subjective component, which 

inquires whether the officials acted with a sufficiently 

culpable state of mind.” Sims v. Mashburn, 25 F.3d 980, 983

(11th Cir. 1994). In addition, Plaintiff must show “that the 

constitutional violation caused his injuries.” Marsh v. Butler 

County, Ala., 268 F.3d 1014, 1028 (11th Cir. 2001). Plaintiff 

has failed to establish any of these elements.

With respect to the objective component, prison conditions 

constitute cruel and unusual punishment only when they result in 

the “unquestioned and serious deprivation of basic human needs.”

Rhodes, 452 U.S. at 347. The law is clear that “the 

Constitution does not mandate comfortable prisons.” Id., 452 

U.S. at 349. “[R]outine discomfort is part of the penalty that 

criminal offenders pay for their offenses against society[.]”

Hudson, 503 U.S. at 9 (citations and internal quotation marks 

omitted). All that is required is that prison officials “ensure 

that inmates receive adequate food, clothing, shelter, and 

medical care, and . . . ‘take reasonable measures to guarantee 

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the safety of the inmates[.]’” Farmer v. Brennan, 511 U.S. 825, 

828, 832, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) (citations 

omitted). 

With respect to the subjective component of Oliver’s Eighth 

Amendment claim, “[w]hen the conduct in question involves any 

measure taken to prevent a security threat or restore official 

control, the Eighth Amendment inquiry is ‘whether force was 

applied in a good faith effort to maintain or restore discipline 

or inflicted maliciously or sadistically for the very purpose of 

causing harm.’” Sims, 25 F.3d at 984 (quoting Hudson, 503 U.S. 

at 6). 

In this case, Defendants engaged in the strip cell 

procedure, pursuant to standard operating procure, as a security 

measure used for inmates who intentionally create a security, 

safety, or health hazard. (Doc. 48-1 at 36). According to the 

incident report, after Oliver was observed repeatedly flushing 

the toilet in his cell, thereby causing water to overflow onto 

the floor of his cell and the tier, he was sent to the Health 

Unit for medical assessment, and then per orders from Captain 

Powers, Oliver was placed in Stripped Cell status in accordance 

with SOP #00-9-017, his property was secured in the Stored 

Property Room, a Water Allowance Sheet was initiated, and Oliver 

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received a disciplinary violation for violation of Rule #62 –

Intentionally Creating a Security, Safety, Health Hazard. (Id.). 

Taking Oliver’s allegations as true, he was deprived of his 

personal property and running water for three (3) weeks because

he flooded his cell in his attempt to wash the mace off of the 

floor. (Doc. 48-1 at 37). While, unquestionably, Oliver’s

confinement in the strip cell for three (3) weeks was unpleasant 

and uncomfortable, Oliver has not shown that he was denied 

adequate food, clothing, shelter, or medical care during his 

confinement in the strip cell, nor has he shown that he suffered 

any injury from his strip cell confinement. Moreover, Oliver

has not shown that his confinement in the strip cell was 

malicious and sadistic and for the very purpose of causing harm.

To the contrary, in addition to being provided adequate 

food, clothing, and shelter while he was in the strip cell, 

Oliver was provided medical care as he completed the medical 

request form discussed supra. (Doc. 48-1 at 14). While Oliver 

did complain to the medical staff that he needed a new inhaler 

and that he was experiencing “minor” pain in his arm that was 

broken six (6) months earlier and severe itchiness on his scalp 

for three (3) weeks; he never complained to the medical staff 

about any problem related to his confinement in the strip cell. 

(Id.). 

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The “broad and idealistic concepts” of the Eighth Amendment 

“must be balanced against competing penological goals.” LaMarca 

v. Turner, 995 F.2d 1526, 1535 (11th Cir. 1993) (quoting Estelle 

v. Gamble, 429 U.S. 97, 102 (1976) (internal quotation marks 

omitted)). Prison officials “should be accorded wide-ranging 

deference in the adoption and execution of policies and 

practices that in their judgment are needed to preserve internal 

order and discipline and to maintain institutional security.”

Bell v. Wolfish, 441 U.S. 520, 547 (1979). 

Because Oliver has failed to allege circumstances that 

would establish a deprivation so grave as to deprive him of the 

minimal civilized measures of life’s necessities, he has failed 

to meet the objective component of his Eighth Amendment claim. 

Cf. White v. Marshall, 2008 U.S. Dist. LEXIS 90351, 2008 WL 

4826283 (M.D. Ala. Nov. 5, 2008) (unpublished) (plaintiff’s 

confinement in a strip cell for thirty days with only a drain in 

the floor for urinating, no clothing except for a paper gown, no 

mattress for twenty-four days, and no blanket was not a 

deprivation of “the minimal civilized measure of life’s 

necessities.”); Mosley v. Bishop, 2009 U.S. Dist. LEXIS 64103, 

2009 WL 1564778 (S.D. Ala. July 21, 2009) (denial of mattress 

and bed linens for nine days, which forced inmate to sleep on a 

“cold, raw steel slab,” did not rise to the level of a 

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deprivation of the minimal civilized measure of life’s 

necessities or of a basic human need.); Brown v. Goodman, 2010 

U.S. Dist. LEXIS 52843, 2010 WL 2202515 (S.D. Ala. April 19, 

2010) (confinement in strip cell for eight days where plaintiff 

had to sleep on the “hard iron bed frame a whole week” and “was 

very cold day (sic) and every night” did not pose “an 

unreasonable risk of serious damage to his future health or 

safety[]”).

Furthermore, because Oliver has failed to allege 

circumstances that would establish that his strip cell 

confinement for three (3) weeks was malicious, sadistic, and 

engaged in for the purpose of causing harm, he has failed to 

meet the subjective component of his Eighth Amendment claim as 

well. Further, Oliver has failed to show that any of the named 

Defendants were responsible for the decision to place in in 

stripped cell status. Indeed, the undisputed evidence reflects 

that Captain Powers made that determination after investigating 

the circumstances surrounding the overflow of water in Oliver’s 

cell and the tier on August 25, 2011. (Doc. 48-1 at 36).

Accordingly, Oliver has failed to state a constitutional 

violation based upon his three (3) week confinement in a strip 

cell, and Defendants are entitled to summary judgment on this 

claim. 

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c. NOVEMBER 12, 2011

As noted supra, Oliver claims that on November 12, 2011, at 

approximately 3:00 a.m., Broadhead, who was accompanied by 

Stanton and Gipson, handcuffed Oliver and began searching his 

cell. According to Oliver, after he commented to a fellow 

inmate that “man it’s too early in the morning for this cramp 

(sic)”, Stanton and Gipson instructed Oliver to “shut the fuck 

up!”, to which Oliver replied, “I’m a grown man, and you don’t 

tell me to shut the fuck up!”. Then, Stanton grabbed Oliver by 

the back of his head and began repeatedly banging the front of 

his head against the wall. (Doc. 14 at 10; Doc. 28 at 3). 

Oliver contends that Kimbrel, Tyus, and Andrews joined the other 

guards in his cell, that they snatched off his pants and boxers, 

that he was thrown on the bed, and the officers began punching, 

kicking, stomping, and choking him repeatedly in his head, face, 

chest, stomach, and ribs for at least ten (10) minutes. (Doc. 28 

at 7; Doc. 74 at 4). Oliver further contends that despite 

informing the guards that he was suffering an asthma attack, the 

guards refused to stop the beating and continued to punch, kick, 

and stomp him in the face, ribs, and back as they took him on 

the elevator to the medical ward. (Id.). Once in the medical 

ward, Oliver contends that the medical staff documented that he 

suffered “two (2) black eyes, cuts, bruises, and swellings (sic) 

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all in different parts of [his] body” and a fractured right rib 

cage. (Id., at 7). Additionally, he contends that he received 

“two puffs” for his asthma attack and “a brand new inhaler!”

(Id., at 7-8).

On the other hand, Defendants Kimbrel, Broadhead, Stanton, 

Gipson, Tyus, and Andrews have submitted affidavits that 

directly conflict with the version of events that Oliver sets 

forth in his complaint and affidavit. (Docs. 48-2, 48-3, 48-10, 

48-12, 48-13, 53-1). Defendants also point to the Health Unit 

record dated November 11, 2011 (Doc. 48-1 at 40) that reflects 

that Oliver was examined within minutes of the alleged beating 

incident, and his only report was that “They busted my lip”. 

(Id.). The medical record from Oliver’s November 11, 2011 visit 

reflects that Oliver had a minor abrasion to his lower lip, that 

he was alert and oriented times three, that his skin was warm 

and dry, he was breathing easily, and his speech was clear and 

coherent, and no cute distress was noted. (Id.) 

The medical record also reflects that on November 12, 2011, 

the date after the incident, Oliver submitted a sick call 

request. (Doc. 48-14 at 8). On the form, Oliver asserts that he 

was assaulted on November 12, 2011 and that he had a swollen and 

blacken left eye, bruises on his back and body, an “allergy 

cough”, and a strenuous headache. (Id.). He also indicates that 

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his head was still itching, and that his shampoo had been 

ordered more than a month earlier. (Id.). Oliver also asserts

that his legs and back were aching, and that he had a loose 

tooth and needed to see the dentist. (Id.).

The medical records reflect that Oliver was seen in the 

Health Unit on November 14, 2011, and he reported that he was 

assaulted on November 12, 2011. (Doc. 48-14 at 6-7). Oliver’s 

chief complaint was a black eye and bruises. He also reported 

that “I have loose tooths” (sic). (Id., at 6). The medical 

records also document that on examination, Oliver had a black 

eye on the left side, he had abrasions on the left side of his 

neck, his left thigh was discolored and “blush-black’, and he 

had a knot. (Id., at 7). It was also noted that Oliver’s scalp 

was dry, he had small raised bumps on his scalp, and his scalp 

was non-flaky. (Id.). 

The dental records reflect that in June 2011, Oliver made a 

request to see a dentist and advised that the teeth in the front 

of his month was broken by the police, and that he needed dental 

cleaning and the repair of “my 2 teeth”. According to the 

dental records, Oliver received a filing in tooth # 9 on July 14, 

2011. On November 23, 2011, Oliver was examined by the dentist 

and informed that tooth #7 needed to be extracted. The 

extraction took place on November 30, 2011. (48-14 at 20-21). 

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The medical records also reflect that in May 2012, after being 

transferred to another facility, Oliver complained of pain in 

his right rib cage, which he attributed to the physical

alteration on November 12, 2011. (Doc. 48-14 at 5). Oliver 

claimed that the medical unit at Holman was supposed to have 

arranged to have his right rib cage x-rayed, but they failed to 

do so. The medical records include a nurse’s notation that 

nothing in Oliver’s medical jacket indicates that he was to have 

an x-ray, and that upon examination, Oliver’s abdominal was 

normal and nothing out of the ordinary was present. (Id., at 3-

4). Oliver was prescribed 200 mg. of ibuprofen for up to five 

(5) days. (Id.). 

Also contained in the record is a Use-Of-Force 

Investigative Report that was completed by Captain Powers on 

November 15, 2011. (Doc. 48-1 at 41). The report reflects that 

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

conducting random shakedowns in the Segregation Unit and at 

approximately 3:00 a.m., Kimbrel, Stanton, and Broadhead 

handcuffed Oliver from behind to begin a search of his cell. 

(Id.). Oliver became verbally aggressive to Officers Stanton 

and Broadhead, and stated “While y’all shaking me down, I’ll 

whip your ass. You can’t do anything to me!” (Id.). Although 

Oliver was instructed to calm down, he continued to become 

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verbally aggressive towards the officers during the search. 

(Id.). Oliver was ordered to step into his cell and stand 

against the wall so that he could be stripped searched, and 

while he complied, he continued to complain. (Id.). As Stanton 

began to search Oliver’s pants pockets, Oliver turned quickly 

and kicked Stanton on his right leg. (Id.). Stanton grabbed 

Oliver by the left arm and took him down to the bed to stop the 

assault. (Id.). Oliver’s face struck the bed resulting in a 

minor abrasion to his lower lip. (Id.). No further force was 

needed and Oliver was escorted to the Health unit for a medical 

assessment at approximately 3:13 a.m. (Id.). By 3:20 a.m., he 

was returned to his cell without further incident. (Id.). 

Powers noted that Oliver would be charged with a Rule #29 

violation for assault on a person associated with ADOC and a 

Rule #44 violation, for threats. (Id.).12

																																																							

12 The record also contains an incident report that recounts much 

of the same information contained in the Use-Of-Force 

Investigative Report. (Doc. 48-1 at 39). In addition, it 

reflects that immediately prior to reaching Oliver’s cell, the 

officers had conducted a search of inmate Kory Johnson’s cell 

(M-20) and found a cellphone and charger hidden in his crotch 

area, the officers had conducted a search of inmate Rocky 

Langford’s cell (L-26) and confiscated one hand-rolled tobacco 

cigarette, and the officers had conducted a search of Travis 

Poke (L-27) and found cigarettes and tobacco packets hidden 

inside Poke’s crotch area. (Id.).

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Oliver was charged with both violations and a disciplinary 

hearing was conducted on November 27, 2011. (Id., at 45). 

Officer Stanton testified that on the date of the incident, he 

and Gipson were conducting shakedowns in the Annex, they went to 

Oliver’s cell and handcuffed him, and told him to step out of 

the cell while they searched his property. (Id., at 46). 

Stanton testified further that Oliver became angry and made 

threats such as “I’ll whip your ass”, that the officers placed 

Oliver against the wall and told him to clam down, that they 

then took Oliver inside the cell and sat him on the bed, and

that Oliver continued to make the threat and kicked Stanton in 

his left leg. (Id.).

The disciplinary hearing records reflect that Oliver

testified that the officers came into his cell to conduct a 

search, that they grabbed him by the neck, choked him, and 

pushed him against the wall, and that several officer took him 

back in the cell and threatened him, beat him, and choked him 

repeatedly. (Id.). Oliver denied threatening the officers and 

testified that he was in handcuffs, that he felt like he was 

provoked, and that he defended himself. (Id., at 45-52). Oliver 

submitted written questions before the hearing, and a final 

written statement to the hearing officer in which he asserted as 

follows:

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Hearing Officer, Mr. Michael Darnell Oliverconvict #207467 received a blackened Left 

eye and bruise neck (Left side) which you 

can physically see! He also received other 

bruises and swellings (sic) on his body 

including also a busted lip and a Loosen 

teeth which was documented by medical care 

professional the day of the incident! Mr. 

Oliver was also secured in handcuffs which 

were pinned on behind Mr. Oliver’s back when 

this incident occurred! Mr. Oliver did not 

threatned (sic) or kick C.O. Earnest Stanton 

in the Left Leg! Instead, C.O. Earnest 

Stanton provoked a physical altercation with 

Mr. Oliver during a procedural cell search 

and beat this convict with several other 

officers to show off their badge and misuse 

the little authority he has and the officers 

as a d.o.c. official!

(Id., at 52). In addition to himself, Oliver offered testimony 

from two other inmates, namely John White and James Maples. 

Inmate White testified that officer Stanton and Oliver were 

outside the cell, that Oliver was yelling, that Stanton directed 

Oliver to face the wall and be quiet, that Oliver kept hollering, 

that Stanton held Oliver to the wall and told him to calm down, 

and that Stanton took Oliver back into the cell. (Id., at 49). 

Inmate Maples testified that he occupied the cell (L-26) 

directly across from Oliver’s cell, that he looked out his 

window and saw Stanton grab Oliver’s neck and push him against 

the wall, and that they then took Oliver into the cell and beat 

him up. (Id.). Maples testified that he was able to see over 

officer Broadhead’s shoulder. The hearing officer found neither 

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Oliver nor Maples to be credible witnesses, and found Oliver 

guilty of making threats to officers and assaulting Stanton. 

(Id., at 47). The hearing officers’ recommendation that Oliver 

be found guilty of both offenses was adopted. (Id.).

As noted supra, to establish his excessive force claim, 

Oliver must prove both an objective and subjective component.

Objectively, Oliver must show that the officers’ alleged 

wrongdoing was objectively “harmful enough” to establish a 

constitutional violation and that they “‘act[ed] with a 

sufficiently culpable state of mind,’” i.e., that the defendants

acted “maliciously and sadistically to cause harm.” Hudson, 503 

U.S. at 7. He must also 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. 

With respect to the November 12, 2011 incident, there is no 

dispute that the incident arose in connection with a legitimate 

search being conducted in the Segregation Unit. However, Oliver 

denied both threatening the officers and kicking Stanton in his 

written statement to the hearing officer and during his 

testimony during the hearing, and he has steadfastly maintained 

that he did not do anything to provoke the officers and cause 

them to repeatedly beat him while handcuffed. Further, he 

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relies on the testimony of a fellow inmate, and he points to his 

medical records, which document that he sustained injuries in 

close proximity to the November 12th encounter. While 

Defendants dispute Oliver’s version of the facts, Oliver has 

created an issue of fact as to whether he was compliant with 

Defendants’ instructions so as to render Defendants’ alleged 

actions in beating him while handcuffed without any discernable 

penological justification. 

Also in dispute is the severity of the injuries suffered by 

Oliver as a result of the November 12th encounter. Defendants 

argue that Oliver’s injuries were de minimis, indicating that 

only a de minimis amount of force was used. However, Oliver 

contends that he was repeatedly kicked and beaten by the 

officers and that as a result of said beating, he suffered “two 

(2) black eyes, cuts, bruises, and swellings (sic) all in 

different parts of [his] body” and a fractured rib cage (Doc. 28 

at 7). Additionally, he contends that he received “two puffs”

for his asthma attack and a brand new inhaler.” (Id., at 7-8). 

Based on the parties conflicting allegations, and the 

objective medical evidence in this case, the undersigned finds 

that although a close call, viewing the evidence in the light 

most favorable to Oliver, he has created a genuine issue of 

whether his claims involve more than a de minimis or 

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insignificant use of force. Hudson, 503 U.S. at 10 (supreme 

court held that the plaintiff’s injuries which included bruises, 

swelling, loosened teeth, and a cracked dental plate were not de 

minimis for Eighth Amendment purposes); Hasemeier v. Shepard, 

252 Fed. App’x 282, 284-85 (llth Cir. 2007); (evidence of injury 

including unconsciousness, cuts, bruises and broken dental 

bridge resulting from alleged beating was sufficient to create a 

genuine issue of material fact as to whether officers applied 

excessive force); see also Higgins v. Johnson, 2006 U.S. Dist. 

LEXIS 101474 (N.D. Fla. Nov. 7, 2006) (court held that where the 

plaintiff alleged that the defendants repeatedly kicked and beat 

him after he had been disarmed and was on the ground no longer 

resisting arrest, and the medical records reflected that the 

plaintiff’s face was swollen such that it resembled a balloon, 

he suffered a black eye, a chipped tooth, an injury to his right 

knee and various abrasions, a reasonable jury could conclude 

that the plaintiff’s claims constitute more than a “de minimis”

or insignificant use of force).

In reaching this conclusion, the undersigned is cognizant 

of the fact that when Oliver was initially examined almost 

immediately after the November 12th incident, a busted lip was 

the only injury noted. However, the next day, Oliver requested 

medical treatment, and on November 14th, more extensive injuries 

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were noted, i.e., black left eye, loose tooth, and abrasions on 

the left thigh. Interestingly, these injuries are all to 

Oliver’s left side and appear to be completely consistent with 

Defendants’ contention that Oliver kicked Stanton, and in 

response, he grabbed Oliver’s left hand, and as they proceeded 

to take Oliver down, Oliver hit his head on the bed. 

Moreover, the record evidence reflects that months before 

this incident, Oliver, in June 2011, sought dental care and 

alleged that the “tooth in front of [his] mouth [was] broken by 

police”. Oliver requested a dental cleaning and repair for 

“[his] 2 teeth”. (Doc. 48-14 at 21). The record reflects that 

Oliver received a filing for his tooth #9 on July 14, 2011, 

prior to the incident in question, and he had tooth #7 extracted 

a few weeks after the November incident. (Doc. 48-14 at 19, 20, 

23). This evidence certainly suggests that Oliver’s tooth #7 

was likely in a defective condition prior to the November 

testimony. Finally, to the extent Oliver now claims to have 

suffered a bruised or cracked right rib, there is nothing in the 

medical records that reflect that Oliver ever reported any 

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problems with his ribs to the medical staff at Holman 13 . That 

said, upon consideration of the record evidence, the Court 

concludes that based on Oliver’s version of the November 2011 

incident and the objective medical evidence, Oliver has created 

a genuine issue with respect to whether Defendants Kimbrel, 

Broadhead, Stanton, Gipson, Tyus, and Andrews used excessive 

force against him on November 12, 2011. 

																																																							

13 In his complaint, Oliver asserts deliberate indifference, yet, 

he has not developed the claim. To the extent that Oliver is 

contending that Defendants were deliberately indifferent in not 

ordering an x-ray of his ribs while he was at Holman, that claim 

is due to be dismissed. A prison official violates the Eighth 

Amendment when he acts with deliberate indifference to an

inmate's serious medical needs, giving rise to a cause of action 

under § 1983. See Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S. 

Ct. 285, 50 L. Ed. 2d 251 (1976). To prevail on a deliberateindifference claim, a plaintiff must show that he had an 

objectively serious medical need and that the defendant acted 

with deliberate indifference to that need. See Burnette v. 

Taylor, 533 F.3d 1325, 1330 (11th Cir. 2008). To establish 

deliberate indifference, a plaintiff must show that the 

defendant had: “(1) subjective knowledge of a risk of serious 

harm; (2) disregard of that risk; (3) by conduct that is more 

than gross negligence.” Id. (citation and internal quotation 

marks omitted). No liability arises under the Constitution for 

an official’s failure to alleviate a significant risk that he 

should have perceived but did not. See id., 533 F.3d at 1331 

(citation and internal quotation marks omitted). In this case, 

Oliver has not alleged nor established that the named Defendants 

were responsible for his medical care, let alone for arranging 

for an x-ray. Plus, the medical records fail to demonstrate any 

problems with Oliver’s ribs or any request by him, while 

confined at Holman, relating to his ribs. Accordingly, to the 

extent Oliver is seeking to make out a deliberate indifference 

claim, he has failed to do so. 

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IV. CONCLUSION

Based on the foregoing, it is recommended that Defendants’

Motion for Summary Judgment (Doc. 73) be GRANTED in part.

Specifically, it is recommended that Plaintiff’s claims with 

respect to the incident occurring on July 10, 2011 and involving 

Defendants Shelton Forney, L. Bailey, K. Reynolds, R. Armstrong, 

Johnny L. Johnson, C. Kimbrel, and Thaddeus Betts be DISMISSED

with prejudice and that Plaintiff’s claims with respect to the 

incidents occurring on August 24-25, 2011, and involving 

Defendants Johnny L. Johnson, C. Kimbrel, J. Broadhead, Earnest 

Stanton, A. Gipson, C. Daughtry, Russell Johnson, and Carroll be 

likewise DISMISSED with prejudice. It is further recommended 

that Defendants’ motion for summary judgment on Plaintiff’s 

excessive force claim arising out of the incident occurring on 

November 12, 2011 and involving Defendants Kimbrel, Tyus, 

Andrews, Broadhead, Stanton and Gipson be DENIED, and that an 

evidentiary hearing be scheduled to address that claim.

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. § 

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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 refers to the 

briefing before the Magistrate Judge is not specific.

DONE this 19th day of August, 2014.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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