United States District Court, N.D. Alabama, Jasper Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
magistrate judge filed a report and recommendation on May 14,
2018, recommending that this action be dismissed without
prejudice for failing to state a claim upon which relief can
be granted, pursuant to 28 U.S.C. § 1915A(b). (Doc. 9).
The report notified plaintiff of his right to file objections
within fourteen days of the report and recommendation
(id.), and on May 29, 2018, the court received the
plaintiff's objections (doc. 10).
complaint, construed liberally, the plaintiff asserted that
in November 2016 Officer Hall made sexually derogatory
comments to him; that in April 2017 at defendant Warden
Givens' direction, various officers planted a knife and
then used excessive force against the plaintiff upon
“discovery” of the knife; and that in June 2017
defendant Warden Givens pushed the plaintiff into a microwave
in retaliation for reporting the November 2016 derogatory
comments. In response to the report and recommendation of the
magistrate judge, the plaintiff objects only to the
conclusion that his claim against defendant Warden Givens for
pushing him into the microwave failed to state an Eighth
Amendment excessive force claim. (Doc. 10).
plaintiff asserts that because he is blind and walks with a
“blind stick, ” defendant Warden Givens could
hear the plaintiff walking and therefore had to have planned
to push the plaintiff into the microwave. (Doc. 10 at 3-4).
In his objections, the plaintiff asserts for the first time
that he twisted his ankle and, because he is blind, could not
see to catch himself when pushed. (Id., at 4).
However, whether the push by defendant Givens was intentional
or accidental, it is still within the category of a
“push or shove” causing no discernible
injury. See Wilkins v. Gaddy, 559 U.S. 34, 38 (2010)
(citations omitted). Although no requirement of a significant
injury exists, a plaintiff must demonstrate more than a
de minimus use of force to state a claim. Hudson
v. McMillian, 503 U.S. 1, 9-10 (1992).
cases within the Eleventh Circuit have found both the type of
force and the type of injuries described here to fall short
of a constitutional violation. See Jones v. City of
Dothan, 121 F.3d 1456, 1460-61 (11th Cir. 1997)
(officers slammed man against a wall, kicked his legs apart,
forced him to raise his hands above his head; man suffered
pain from raising hands due to prior stroke, and from kicking
due to arthritic knees, and received medical treatment for
knees thereafter; although force was unnecessary, force used
and injury inflicted were minor, and excessive force standard
would not inevitably lead officer to conclude that force was
unlawful, thus officer entitled to qualified immunity);
Post v. City of Ft. Lauderdale, 7 F.3d 1552, 1559
(11th Cir. 1993) (pushing handcuffed individual against a
wall, although unnecessary, was not plainly unlawful, and
officer entitled to qualified immunity because “it was
not clearly established that the amount of force he used ...
was unlawful.”); Smith v. Sec'y, Dept. of
Corrections, 524 Fed. App'x 511, 513 (11th Cir.
2013) (minimal swelling around eye supported finding of
de minimus force); Ledlow v. Givens, 500
Fed. App'x 910, 914 (11th Cir. 2012) (bloody nose with no
lasting injury insufficient to constitute an Eighth Amendment
violation); McCall v. Crosthwait, 336 Fed. App'x
871, 873 (11th Cir. 2009) (where officer pushed pre-trial
detainee out of jail elevator, causing him to hit partially
open steel cell door and fall against plexiglass window, and
detainee suffered bruised shoulder and elbow, force was
de minimus); Johnson v. Moody, 206 Fed.
App'x 880, 885 (11th Cir. 2006) (minor nature of injury
suggested that officer's pushing or kicking metal tray
door on inmate's hand was de minimis use of
force); Sepulveda v. Burnside, 170 Fed. App'x
119, 124 (11th Cir. 2006) (claim that officer on one occasion
jerked inmate by the ankle while checking his leg shackles
did not state constitutional violation); Springs v.
Lagravinese, 2008 WL 2074415 (M.D. Fla. May 15, 2008)
(inmate who was grabbed by the arm, had it twisted behind him
and was shoved into his cell did not support a finding
malicious and sadistic purpose).
plaintiff also argues that, because he is blind, defendant
Givens should have considered the substantial risk of serious
harm that could have befallen him when she pushed him. (Doc.
10 at 4). This argument mixes apples and oranges. A failure
to intervene claim against a prison official arises in the
Eighth Amendment deliberate indifference context. However,
such standards do not apply to excessive force claims.
Defendant Givens cannot be said to have failed to intervene
to protect the plaintiff from her own actions. See e.g.,
Ledlow, 500 Fed.App'x at 914 (noting that an officer
who is not a participant in the
excessive force can still be liable if he fails to take
reasonable steps to protect the victim) (citing Skrtich
v. Thornton, 280 F.3d 1295, 1301 (11th Cir. 2002). The
plaintiff's argument otherwise lacks merit.
carefully reviewed and considered de novo all the
materials in the court file, including the report and
recommendation and the plaintiff's objections, the court
OVERRULES plaintiff's objections. The
court ADOPTS the magistrate judge's
report and ACCEPTS the recommendation.
Therefore, in accordance with 28 U.S.C. § 1915A(b), this