Opinion
Civil Action No. 98-0923-AH-L.
September 29, 2000.
Fred F. Bell, Esq., Office of the Attorney General, State of Alabama, 11 S. Union St., Montgomery, AL 36130.
REPORT AND RECOMMENDATION
Plaintiff, an Alabama prison inmate proceeding pro se and in forma pauperis, filed a complaint under 42 U.S.C. § 1983 alleging that the defendant used excessive force against him in violation of his Eighth and Fourteenth Amendment rights. This action was referred to the undersigned Magistrate Judge on January 5, 2000, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4), and is now before the Court on defendant's motion for summary judgment (Doe. 12).
The plaintiff also summarily alleged sexual harassment by the defendant. In his facts supporting his complaint the plaintiff argues that the sexual harassment was the improper motivation behind the excessive force used by defendant and does not appear to assert sexual harassment as an independent claim. Therefore, the court will consider the allegations regarding sexual harassment as argument regarding the defendant's subjective motivation to use excessive force.
This is one of three § 1983 lawsuits plaintiff has filed in this court. Lanier v. Tony Fralick and Luverne Pierce, Civil Action No. 97-1010-CB-S was dismissed on plaintiff's "motion to stay," which was construed as a motion to dismiss, on February 9, 1998. Another § 1983 suit, Lanier v. Wilson et al., Civil Action No. 98-0759-AH-L is pending before this Court.
The Court converted defendant's special report (Doc. 12) into a motion for summary judgment (Doc. 13). Plaintiff was given notice that the motion for summary judgment would be taken under submission, was advised of the pertinent summary judgment law and of the consequences of a summary judgment motion, and was provided an opportunity to respond to the summary judgment motion. In response, plaintiff filed a document styled "Motion for Summary Judgment", which this Court is treating as a response to Defendant's motion for summary judgment. (Doc. 14.) The undersigned Magistrate Judge recommends that the defendant's motion for summary judgment be granted as to plaintiffs claim of excessive force and that plaintiffs claims of sexual harassment and perjury be dismissed for failure to state a claim on which relief can be granted.
I. Complaint
In the complaint (Doc. 1), plaintiff named Tony Fralick, a corrections officer at Holman Correctional Facility, as the only defendant. Plaintiff complains that on August 26, 1998, the defendant falsely accused him of masturbating in public and immediately escorted plaintiff to a holding pen, about 150 yards away. The plaintiff denied the accusation and cursed the defendant with crude epithets but says that he did not resist going with the defendant to the segregation unit.
However, in his "Motion for Summary Judgment" (Doc. 14), the plaintiff states "Defendant admit I stopped several times, yet no force was used to get me to the segregation lockup unit, but once in the seg. unit he told me a final time and then he used forced. Aver the force should've been used doing those several times he had to tell me to keep moving, not inside of the seg. unit. So no inmate could witness the abuse of authority. [Sic.]" (Emphasis in original.)
Upon securing the riot gate behind them, plaintiff alleges that defendant pushed plaintiff into a glass window about four feet ahead of them. Specifically, the plaintiff says that the defendant put one hand into plaintiffs back and the other behind his neck as if to smash plaintiffs face into the glass. Plaintiff alleges that defendant kept his hands in these positions until plaintiff collided with the glass. Plaintiff claims that he crossed his arms in front of him and turned his face sideways and upon making contact with the glass pushed away, causing defendant to fall backwards. Plaintiff then fell on defendant and they "tussled" until plaintiff put defendant into a headlock.
Plaintiff claims injuries to the left side of his face and to his left arm, which he attributes to the impact with the glass. He also claims an injured right shoulder and neck. Plaintiff alleges that he has suffered from mental stress and that his health has declined since the incident. Specifically, Plaintiff states that "every since this physical confrontation with the Defendant Plaintiff has been under Doctors care, taking 7 different pills at one time". (Doc. 4).
II. Defendant's Response
The defendant responds by arguing that any force used was justified and that the defendant only sustained minor injuries and therefore plaintiff has failed to establish a constitutional violation. The defendant further asserts the defense of qualified immunity.
The defendant's incident report states that plaintiff stopped several times while being escorted to the segregation unit. Plaintiff then moved his hand as if to strike defendant, causing defendant to react. Defendant grabbed the front of plaintiff's shirt and pulled him down to the floor. Plaintiff placed defendant in a headlock and defendant placed his baton against the left side of plaintiffs neck and pushed until plaintiff let go. ( See attachment to Doc. 12.) Defendant also filed an affidavit with the court attached as "Exhibit A" to his special report (Doc. 12) in which he stated,
A hearing was held by the Alabama Department Corrections which resulted in plaintiff being found guilty of assaulting the defendant.
"Inmate Lanier has a disciplinary history for masturbation and by his own admission in his complaint he became insubordinate when I ordered him to come with me to the main hall. Inmate Lanier did refuse to keep walking when ordered to do so and he did assault me when I attempted to insure his compliance with my order to continue walking."
The Defendant also submitted medical records in support of his argument that Plaintiff received only minor injuries. The medical records, which are signed by a physician and dated August 26, 1998, document that plaintiff had a
"3/4 inch bump [with] a 1/2 inch tear of the skin behind his left ear. There are [several] one-inch scratches in a circular area on his left elbow and a 1/2 inch abrasion on top of his right shoulder. Moves arms and shoulders in full [range of motion]. No edema to left jaw and opens mouth wide with do pain." (Attachment to Doc. 12).
II. STATEMENT OF THE LAW
A. Summary Judgment
For the defendant to prevail on summary judgment, defendant must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A factual dispute is "`genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing [substantive] law." Id; accord Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992). cert. denied, 507 U.S. 911 (1993). However, an issue is not genuine if it is unsupported by evidence, or if it is created by evidence that is "merely colorable" or is "not significantly probative." Anderson, 477U.S. at 249-50.
Since the moving party has the burden of showing the absence of a genuine issue as to any material fact, the Court must view the movant's evidence and all factual inferences arising from it in the light most favorable to the nonmoving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993); Tipton, 965 F.2d at 989-99.
Once the movant satisfies its initial burden under Rule 56(c) the nonmovant must "show the existence of a genuine issue as to a material fact." Fitzpatrick, 2 F.3d at 1116. "A mere `scintilla' of evidence supporting the [nonmoving] party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1575, 1577 (11th Cir. 1990) (citation omitted). "[T]he nonmoving party may avail itself of all facts and justifiable inferences in the record taken as a whole." Tipton, 965 F.2d 998 (citing United States v. Diebold, Inc. 369 U.S. 654, 655 (1962)). "[T]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Tipton, 965 F.2d at 999 (quoting Anderson, supra at 255).
B. Qualified Immunity.
In Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 1697 (1999), the Supreme Court held as follows:
A court evaluating a claim of qualified immunity "must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation." Conn v. Gabbert, 526 U.S. 286, [290], 119 S.Ct. 1292, 1295, [143] L.Ed. [399] (1999). This order of procedure is designed to "spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit." Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). Deciding the constitutional question before addressing the qualified immunity question also promotes clarity in the legal standards for official conduct, to the benefit of both the officers and the general public. See County of Sacramento v. Lewis, 523 U.S. 833, 840-842, n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).
Without a constitutional violation the Plaintiff can not prove the violation of a clearly established statutory or constitutional right of which a reasonable person would have known. "Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U. 800, 102 S.Ct. 2727, 2738, L.Ed.2d 396 (1982).
For qualified immunity not to be available to a governmental actor, "the law must have earlier been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in defendant's place, that `what he is doing' violates federal law." Id. (citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)). The body of law that determines whether the right is clearly established is comprised of decisions from the United States Supreme Court, the Eleventh Circuit Court of Appeals, and the Alabama Supreme Court (if the Alabama Supreme Court has addressed an issue involving a federal right that has not been addressed by either of the preceding courts). Courson v. McMillian, 939 F.2d 1479, 1497-80 n. 32 (11th Cir. 1991).
However, "[a] necessary concomitant to the determination of whether the constitutional right asserted by plaintiff is `clearly established' at the time the defendant acted is the determination of whether the plaintiff asserted a violation of a constitutional right at all." Seigert v. Gilley, 500 U.S. 226, 232, 233, 235, 111 S. Ct. 1789, 1793, 1794, 114 L. Ed 2d 277 (1991) (finding that the defendant was improperly denied qualified immunity by the district court because plaintiff "failed not only to allege the violation of a constitutional right that was clearly established at the time of [defendant's] actions, but also to establish the violation of any constitution right at all"); accord County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 1714 n. 5, 140 L.Ed.2d 1043 (1998) (validating Seigert's approach).
C. Excessive Force
"The unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eight Amendment." Ingraham v. Wright, 430 U.S. 651, 670 (1997). Thus, the use of excessive force against an inmate may constitute cruel and unusual punishment in violation of the Eight Amendment. Such a claim includes both an objective and a subjective component. The plaintiff must establish that "the alleged wrongdoing was objectively `harmful enough' to establish a constitutional violation." Subjectively, the plaintiff must establish that the defendant acted "maliciously or sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 8 (1992). Factors to consider in making this determination include (1) the extent of injury suffered; (2) the need for the application of force; (3) the relation between the need for force and the amount of force actually used; (4) the threat reasonably perceived; and (5) any efforts to temper the severity of a forceful response. Id. at 7.
In the objective analysis under Hudson, "only those deprivations denying `the minimal civilized measure of life's necessities' are sufficiently grave to form the basis of an Eighth Amendment violation.'" Hudson, at 9 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991). The objective component of 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.'" Id. at 9-10 (quoting Whitley v. Albers, 475 U.S. 312, 327 (1986). The Hudson Court did not define " de minimis use of force" but suggested that the degree of injury received is at least relevant to determining whether more than de minimis force was used. See 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). However, the Court rejected the argument that "serious" or "significant" injury is required to satisfy the objective component. Id. at 9. Moreover, the Court rejected the concept that any arbitrary quantum of injury is an absolute requirement of an excessive force claim, apparently out of concerns that certain forms of torture are capable of inflicting extreme pain without leaving any mark or tangible injury. See id. ("Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury.").
After Hudson, several courts have concluded that, except perhaps in cases where substantial pain (as from torture) is alleged, more than de minimis force cannot be found unless more than de minimis injuries were received. See Norman v. Taylor, 25 F.3d 1259, 1263 n. 4 (4th Cir. 1994); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). Other appellate cases have implicitly followed similar reasoning.
The following injuries have been held by courts of appeal to be too minor to support an excessive force claim: A bruised shoulder from being shoved into a wall, Markiewicz v. Washington, 1999 WL 196596 (7th Cir. 1999); a sore, bruised ear lasting three days, Siglar v. Hightower, 112 F.3d 191 (5th Cir. 1997); transitory back and shoulder aches of limited duration, Williams v. Dehay, 1996 WL 128422 (4th Cir. 1996); a 1.5 inch scratch on the back of the hand from handcuffs, Schoka v. Swinney, 1995 WL 251126 (9th Cir. 1995); a welt from a slap on the face, Riley v. Dotson, 115 F.3d 1159 (4th Cir. 1997); daily headaches (without treatment) from being hit with a water bucket, Lunsford v. Bennett, 17 F.3d 1574 (7th Cir. 1994); a sore and swollen thumb from being hit with keys, Norman v. Taylor, 25 F.3d 1259 (4th Cir. 1994).
But see the following cases where injuries have been held to be sufficient to support excessive force claims: Cuts scrapes and contusions to the face, head and body from a group beating, Gomez v. Chandler, 163 F.3d 921 (5th Cir. 1999); a broken finger Escobar v. Zavaras, 1998 WL 31403 (10th Cir. 1998); cuts, bruises, a swollen hand and a possible broken finger, Mitchell v. Maynard, 80 F.3d 1433 (10th Cir. 1996); permanent scarring and numbness from handcuffs, Davidson v. Flynn, 32 F.3d 27 (2d Cir. 1994).
III. DISCUSSION
Because the law requires this Court to construe the facts in the light most favorable to the Plaintiff, the undersigned assumes for summary judgment purposes that Plaintiff was unreasonably pushed by Defendant into the glass window and that a struggle ensued in which plaintiff placed defendant in a headlock. The question, therefore, is whether a jury could reasonably conclude that the defendant violated the Plaintiffs Eight Amendment rights by using excessive force when he allegedly pushed Plaintiff into the window. Answering this question requires an application of the objective and subjective standards articulated in Hudson to the facts of the present case.
Proceeding to the objective analysis from Hudson, the undersigned is of the opinion that the injuries in this case are de minimis, and that they do not satisfy the objective element necessary for an Eighth Amendment violation. "`Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights.'" Hudson, 503 U.S. at 9 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d. Cir. 1973)).
The defendant presented evidence that the Plaintiff suffered only minor injuries: (1) several one-inch scratches in a circular area on his left elbow, which, were cleaned, covered with ointment and bandaged; (2) a 3/4 inch bump with a one-half inch skin tear behind the left ear, which was cleaned but otherwise untreated; (3) a 1/2 inch abrasion on top of his right shoulder; (4) a complaint of injury to the left jaw, but without edema, pain, or decreased range of motion. (Doc. 12, attachment.) In addition to these injuries Plaintiff alleges that he developed a stiff neck and that he continues to suffer mental stress and a general decline in health. However, these additional complaints are unsupported by any evidence. The Plaintiff alleges he returned to the infirmary later the same day after developing a stiff neck, but he does not allege any treatment. No medical record has been produced documenting such a visit, nor has any evidence been offered to support Plaintiff's claim that since the incident he has been "under Doctors care taking 7 different pills at one time". Conclusory allegations without supporting evidence are due to be discounted. Bennett v. Parker, 898 F.2d 1530, 1534 (11th Cir. 1990).
Even if the court presumes for summary judgment purposes that all of Plaintiff's injuries came from contact with the window, and not from the subsequent struggle in which Plaintiff admittedly placed defendant in a headlock, the Plaintiff has not met the objective component required to establish an Eighth Amendment claim. The alleged injuries that are supported by any evidence, i.e. small elbow scratches, shoulder abrasion and scalp tear, appear comparable to the bruises, welts, scratches, and soreness that have also been found by other courts to be insufficient to support an excessive force claim. See note 5, supra.
Moreover, assuming Plaintiff's version of the incident, the unwelcome shove, if proven, would not establish a violaton of Plaintiff's constitutional rights. In DeWalt v. Carter, 2000 WL 1137385 (7th Cir. 2000), the court determined that the Plaintiff had failed to state a claim when faced with a similiar allegation of excessive force. Specifically, in DeWalt, the Plaintiff alleged that a correctional officer, without justification, shoved the Plaintiff into a door frame which resulted in bruising on his back. The court held that the officer's "simple act of shoving [the Plaintiff] qualifies as the kind of de minimis use of force that does not constitute cruel and unusual punishment". Id * 11. Although, in the present case, unlike in DeWalt, a tussle ensued after the alleged push, the Plaintiff does not allege excessive force in the struggle but rather admits that he put the defendant in a headlock. Nevertheless, the incident as described by the Plaintiff, is not so egregious that one could reasonably call it repugnant to the conscience of mankind.
If a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial," Rule 56(c) mandates that summary judgment be entered against the nonmovant. CelotexCorp. v. Catrett, 477 U.S. 317, 322 (1980). Moreover, no material issues can be in dispute where the Plaintiffs evidence fails to establish a constitutional violation. Bennett at 1534. Based on a careful review of the entire record and the relevant caselaw, the undersigned concludes that Plaintiff has failed to establish that the "wrongdoing was objectively harmful enough to establish a constitutional violation," since no more than a de minimis injury has been established. Thus, Plaintiff has failed to establish the objective component of an Eighth Amendment claim. Sims v. Mashburn, 25 F.3d 980, 983 (11th Cir. 1994); see also, Farmer v. Brennan, 511 U.S. 825, 834 (1994) (ruling that an Eighth Amendment violation is found only when both the subjective and objective components of the claim are met). Therefore, since no constitutional violation has been established, Defendant's motion for summary judgment is due to be GRANTED.
The Plaintiff also summarily alleges sexual harassment and perjury by the Defendant. However, the Plaintiff fails to support these allegations with specific facts or legal arguments which support a constitutional claim. Therefore, these claims are due to be dismissed for failure to state a claim upon which relief may be granted under 28 U.S.C. § 1915(e)(2)(B)(ii). See, Fullman v. Graddick, 739 F.2d 553, 556-557 (11th Cir. 1984).
III. RECOMMENDATION.
For the above-stated reasons, the undersigned Magistrate Judge RECOMMENDS that Defendant Fralick's motion for summary judgment be GRANTED and that this action be dismissed with prejudice.
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION AND FINDINGS CONCERNING NEED FOR TRANSCRIPT
1. Objection . Any party who objects to this recommendation or anything in it must, within ten days of the date of service of this document, file specific written objections with the clerk of court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) ( en banc). The procedure for challenging the findings and recommendations of the magistrate judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:
A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a "Statement of Objection to Magistrate Judge's Recommendation" within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection.
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.
2. Transcript (applicable where proceedings tape recorded) . Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this action are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.