Smith v. Owens (INMATE 1)(CONSENT)

Filing 22

MEMORANDUM OPINION. Signed by Honorable Judge Terry F. Moorer on 1/31/2012. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CARL LASHANE SMITH, #197247,
Plaintiff,
v.

OFFICER OWENS,
Defendant.

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CASE NO. 2:08-CV-852-TFM
[WO]

MEMORANDUM OPINION
I. INTRODUCTION
In this 42 U.S.C. § 1983 action, Carl LaShane Smith [Smith”], a state inmate,
challenges the constitutionality of actions taken against him during his incarceration at the
Elmore Correctional Facility. Specifically, Smith alleges officer Billy Owens [“Owens ”]
subjected him to excessive force on June 26, 2008.
The defendant filed a special report and supporting evidentiary materials addressing
Smith’s claim for relief. Pursuant to the orders entered in this case, the court deems it
appropriate to construe the report as a motion for summary judgment. January 5, 2009
Order (Doc. No. 16). Thus, this case is now pending on the defendant’s motion for
summary judgment. Upon consideration of this motion, the evidentiary materials filed in
support thereof and the plaintiff’s response, the court concludes the defendant’s motion for

summary judgment is due to be granted.
II. STANDARD OF REVIEW
“Summary judgment is appropriate ‘if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show there is
no genuine [dispute] as to any material fact and that the moving party is entitled to
judgment as a matter of law.’” Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258,
1263 (11th Cir. 2007) (per curiam) (citation to former rule omitted); Fed.R.Civ.P. Rule
56(a) (“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.”).1 The party moving 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 [record, including pleadings, discovery materials and affidavits], which it believes
demonstrate the absence of a genuine issue [- now dispute -] of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet this burden by
presenting evidence indicating there is no dispute of material fact or by showing the
nonmoving party has failed to present evidence in support of some element of its case on

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Effective December 1, 2010, Rule 56 was “revised to improve the procedures for presenting and deciding
summary-judgment motions.” Fed.R.Civ.P. 56 Advisory Committee Notes. Under this revision, “[s]ubdivision (a)
carries forward the summary-judgment standard expressed in former subdivision (c), changing only one word -genuine ‘issue’ becomes genuine ‘dispute.’ ‘Dispute’ better reflects the focus of a summary-judgment
determination.” Id. “‘Shall’ is also restored to express the direction to grant summary judgment.” Id. Thus, although
Rule 56 underwent stylistic changes, its substance remains the same and, therefore, all cases citing the prior versions
of the rule remain equally applicable to the current rule.

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which it bears the ultimate burden of proof. Id. at 322-324.
The defendant has met his evidentiary burden and demonstrated the absence of any
genuine dispute of material fact. Thus, the burden shifts to the plaintiff to establish, with
appropriate evidence beyond the pleadings, that a genuine dispute material to his case
exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Celotex, 477 U.S.
at 324; Fed.R.Civ.P. 56(e)(3) (“If a party fails to properly support an assertion of fact or
fails to properly address another party’s assertion of fact by [citing to materials in the
record including affidavits, relevant documents or other materials] the court may ... grant
summary judgment if the motion and supporting materials -- including the facts considered
undisputed -- show that the movant is entitled to it.”) A genuine dispute of material fact
exists when the nonmoving party produces evidence that would allow a reasonable factfinder to return a verdict in its favor. Greenberg, 498 F.3d at 1263. Consequently, to
survive the defendant’s properly supported motion for summary judgment, Smith is
required to produce “sufficient [favorable] evidence” which would be admissible at trial
supporting his claims for relief. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986); Rule 56(e), Federal Rules of Civil Procedure. “If the evidence [on which the
nonmoving party relies] is merely colorable ... or is not significantly probative ... summary
judgment may be granted.” Id. at 249-250. “A mere ‘scintilla’ of evidence supporting the
opposing party’s position will not suffice; there must be enough of a showing that the [trier

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of fact] could reasonably find for that party. Anderson v. Liberty Lobby, 477 U.S. 242, 106
S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).” Walker v. Darby, 911 F.2d 1573, 1576-1577
(11th Cir. 1990).

Conclusory allegations based on subjective beliefs are likewise

insufficient to create a genuine issue of material fact and, therefore, do not suffice to
oppose a motion for summary judgment. Waddell v. Valley Forge Dental Associates, Inc.,
276 F.3d 1275, 1279 (11th Cir. 2001); Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir.
1997) (plaintiff’s “conclusory assertions ..., in the absence of [admissible] supporting
evidence, are insufficient to withstand summary judgment.”); Harris v. Ostrout, 65 F.3d
912, 916 (11th Cir. 1995) (grant of summary judgment appropriate where inmate produces
nothing beyond “his own conclusory allegations” challenging actions of the defendants);
Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984) (“mere verification of party’s own
conclusory allegations is not sufficient to oppose summary judgment....”). Hence, when
a plaintiff fails to set forth specific facts supported by requisite evidence sufficient to
establish the existence of an element essential to his case and on which the plaintiff will
bear the burden of proof at trial, summary judgment is due to be granted in favor of the
moving party. Celotex, 477 U.S. at 322 (“[F]ailure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all other facts immaterial.”);
Barnes v. Southwest Forest Industries, Inc., 814 F.2d 607, 609 (11th Cir. 1987) (If on any
part of the prima facie case the plaintiff presents insufficient evidence to require

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submission of the case to the trier of fact, granting of summary judgment is appropriate).
For summary judgment purposes, only disputes involving material facts are relevant.
United States v. One Piece of Real Property Located at 5800 SW 74th Avenue, Miami,
Florida, 363 F.3d 1099, 1101 (11th Cir. 2004). What is material is determined by the
substantive law applicable to the case. Anderson, 477 U.S. at 248; Lofton v. Secretary of
the Department of Children and Family Services, 358 F.3d 804, 809 (11th Cir. 2004) (“Only
factual disputes that are material under the substantive law governing the case will
preclude entry of summary judgment.”). “The mere existence of some factual dispute will
not defeat summary judgment unless that factual dispute is material to an issue affecting
the outcome of the case.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243
(11th Cir. 2003) (citation omitted). To demonstrate a genuine dispute of material fact, the
party opposing summary judgment “must do more than simply show that there is some
metaphysical doubt as to the material facts.... Where the record taken as a whole could not
lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine [dispute]
for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
In cases where the evidence before the court which is admissible on its face or which can
be reduced to admissible form indicates there is no genuine dispute of material fact and
establishes the party moving for summary judgment is entitled to it as a matter of law,
summary judgment is proper. Celotex, 477 U.S. at 323-324 (Summary judgment is

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appropriate where pleadings, evidentiary materials and affidavits before the court show
there is no genuine dispute as to a requisite material fact); Waddell, 276 F.3d at 1279 (To
establish a genuine dispute of material fact, the nonmoving party must produce evidence
such that a reasonable trier of fact could return a verdict in his favor).
Although factual inferences must be viewed in a light most favorable to the
nonmoving party and pro se complaints are entitled to liberal interpretation by the courts,
a pro se litigant does not escape the burden of establishing by sufficient evidence a genuine
dispute of material fact. Beard, 548 U.S. at 525, 126 S.Ct. at 2576; Brown v. Crawford,
906 F.2d 667, 670 (11th Cir. 1990). Thus, the plaintiff’s pro se status alone does not
mandate this court’s disregard of elementary principles of production and proof in a civil
case. In this case, Smith fails to demonstrate a requisite genuine dispute of material fact
in order to preclude summary judgment. Matsushita, supra.
III. DISCUSSION
A. Absolute Immunity
With respect to any claims Smith lodges against Owens in his official capacity, the
defendant is entitled to absolute immunity from monetary damages. Official capacity
lawsuits are “in all respects other than name, ... treated as a suit against the entity.”
Kentucky v. Graham, 473 U. S. 159, 166 (1985). “A state official may not be sued in his
[or her] official capacity unless the state has waived its Eleventh Amendment immunity,

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see Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900,
908, 79 L.Ed.2d 67 (1984), or Congress has abrogated the state’s immunity, see Seminole
Tribe v. Florida, [517 U.S. 44, 59], 116 S.Ct. 1114, 1125, 134 L.Ed.2d 252 (1996).
Alabama has not waived its Eleventh Amendment immunity, see Carr v. City of Florence,
916 F.2d 1521, 1525 (11th Cir. 1990) (citations omitted), and Congress has not abrogated
Alabama’s immunity. Therefore, Alabama state officials are immune from claims brought
against them in their official capacities.” Lancaster v. Monroe County, 116 F.3d 1419,
1429 (11th Cir. 1997).
In light of the foregoing, it is clear the defendant is a state actor entitled to sovereign
immunity under the Eleventh Amendment for claims seeking monetary damages from him
in his official capacity. Lancaster, 116 F.3d at 1429; Jackson v. Georgia Department of
Transportation, 16 F.3d 1573, 1575 (11th Cir. 1994); Parker v. Williams, 862 F.2d 1471
(11th Cir. 1989).
B. Uncontested Material Facts2
On the morning of June 26, 2008, Owens attempted to conduct a routine search of
Smith and his assigned living area. Owens issued Smith several orders in an effort to carry
out the search. Smith did not comply with the orders and, instead, became belligerent
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The facts are gleaned from the complaint and the undisputed evidentiary materials submitted by the
defendants. In his response to the defendant’s report, Smith does not contest the facts as set forth in the affidavits
and other relevant documents filed by the defendant; rather, he maintains these documents are “redundant” and adopts
them as“proof positive that the defendant” improperly used force against him. Plaintiff’s January 28, 2009 Response
- Doc. No. 17 at 2.

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towards Owens drawing the attention of other inmates in the dorm. During this time, Smith
questioned Owens’ authority, failed to comply with Owens’ orders, demanded Owens not
touch him and repeatedly cursed Owens. Due to Smith’s unruly behavior, Owens escorted
Smith to the shift office. Owens did not place handcuffs on Smith.
While in the waiting area outside the shift office, Smith continued cursing and
muttering derogatory statements towards Owens. Smith then called Owens a “Bitch” while
turning towards Owens in what Owens perceived as “an aggressive manner.” Defendant’s
Exhibit A (Owens’ Aff.) - Doc. No. 15-1 at 2. Based on Smith’s hostile behavior and
aggressive movement, Owens attempted to restrain Smith by placing his arm around Smith.
Smith resisted and the two fell to the floor where a struggle ensued. During this struggle,
Owens kicked Smith in the upper torso while Smith kicked Owens in the groin area and
bit Owens’ finger. Sgt. Willie Burks arrived on the scene and intervened by placing
himself between Owens and Smith. “At this time, [Burks] felt Smith attempt to kick
Officer Owens by kicking between my legs at Officer Owens. Officer Owens became
frustrated, causing me to restrain Officer Owens from Smith.” Defendant’s Exhibit B
(Burks’ Aff.) - Doc. No. 15-2 at 1.
Capt. Richard Naile entered the waiting room, handcuffed Smith and escorted him
to the health care unit. Upon arrival at the health care unit, a nurse examined Smith and
observed only small scratches to the left side of his neck and redness to his right knee.

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Defendants’ Exhibit I (Inmate Body Chart) - Doc. No. 15-9 at 9. The nurse found no other
injuries during her examination of Smith, deemed no treatment no treatment necessary and
released him for return to his cell. Id.
Owens likewise reported to the health care unit for treatment and examination. Dr.
James Mracek examined Owens and observed a bite wound to his hand and a contusion in
the groin area. Defendants’ Exhibit J - Doc. No. 15-10 at 1. Due to the bite received from
Smith, Dr. Mracek ordered Owens to undergo various tests for communicable diseases.
Id. at 2.
C. Disposition of Claim
Smith alleges the use of force by Owens constituted excessive force violative of the
Eighth Amendment. The defendant adamantly denies Smith’s allegation of excessive
force. Specifically, the Owens maintains he used only the amount of force necessary under
the circumstances to maintain discipline and gain control of inmate Smith. The objective
and undisputed evidentiary materials filed herein support this assertion.
The Eighth Amendment prohibits the infliction of cruel and unusual punishments
and this “proscription ... governs prison officials’ use of force against convicted inmates.”
Campbell v. Sikes, 169 F.3d 1353, 1374 (11th Cir. 1990).
Under the Eighth Amendment, force is deemed legitimate in a custodial
setting as long as it is applied “in a good faith effort to maintain or restore
discipline [and not] maliciously and sadistically to cause harm.” Whitley v.
Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)
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(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir.1973)); see also
Hudson v. McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992).
To determine if an application of force was applied maliciously and
sadistically to cause harm, a variety of factors are considered including: “the
need for the application of force, the relationship between that need and the
amount of force used, the threat reasonably perceived by the responsible
officials, and any efforts made to temper the severity of a forceful response.”
Hudson, at 7-8, 112 S.Ct. 995; see also Whitley, 475 U.S. at 321, 106 S.Ct.
1078; Harris v. Chapman, 97 F.3d 499, 505 (11th Cir.1996). From
consideration of such factors, “inferences may be drawn as to whether the
use of force could plausibly have been thought necessary, or instead evinced
such wantonness with respect to the unjustified infliction of harm as is
tantamount to a knowing willingness that it occur.” Whitley, 475 U.S. at
321, 106 S.Ct. 1078 (quoting Johnson, 481 F.2d at 1033)....
Skrtich v. Thornton, 280 F.3d 1295, 1300-1301 (11th Cir. 2002) (footnote omitted);
Campbell, 169 F.3d 1374 (“To establish an Eighth Amendment claim for excessive force,
... Plaintiff must meet [a heightened] intent requirement ... [and] must prove that ‘force was
applied ... maliciously and sadistically for the very purpose of causing harm.’ Whitley, 475
U.S. at 320-21, 106 S.Ct. 1078 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir.
1973).... [F]orce does not violate the Eighth Amendment merely because it is unreasonable
or unnecessary.”). Another relevant factor in ascertaining whether a correctional officer
used force “maliciously and sadistically” is the extent of the injury suffered by the inmate.
Campbell, 169 F.3d at 1375. Federal courts “must also give a ‘wide range of deference to
prison officials acting to preserve discipline and security,’ including when considering
‘[d]ecisions made at the scene of a disturbance.’ Bennett v. Parker, 898 F.2d 1530, 1533
(11th Cir. 1990).” Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007).

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Viewing the facts in a light most favorable to Smith and applying the pertinent
factors to those facts, the court concludes Smith fails to establish the use of excessive force
as the record is devoid of evidence showing the defendant acted “maliciously and
sadistically” for the very purpose of causing harm. Initially, the minor injuries suffered by
Smith are clearly indicative of a use of minimal force and reflect the type injuries attendant
to an officer undertaking actions necessary to obtain control of an inmate. The minimal
nature of Smith’s injuries suggests the force about which he complains was not used
maliciously and sadistically. Williams v. Scott, 433 Fed.Appx. 801, 804 (11th Cir. 2011)
(“While a significant injury is not required to establish an Eighth Amendment ... violation,
Wilkins v. [Gaddy, ___ U.S. ___, 130 S.Ct. 1175, 1178 (2010)], the minor nature of the
injury runs counter to a finding of malicious and sadistic intent. Instead, the minor nature
of the injury shows that the amount of force was plausible under the circumstances. Id.”).
Next, the undisputed facts demonstrate a need for the use of force because Smith disobeyed
several orders, confronted the defendant in a combative manner and posed a reasonably
perceived threat to the safety of the officer. When Owens attempted to restrain Smith for
his unruly and aggressive behavior, Smith kicked Owens in the groin and bit the officer on
the finger. “The need for the use of force is established by the undisputed evidence that
[the inmate] created a disturbance.... Prison guards may use force when necessary to
restore order and need not wait until disturbances reach dangerous proportions before
responding.” Bennett, 898 F.2d at 1533. In addition, the relationship between the need for
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the use of force and the amount of force used fails to support a finding of malicious and
sadistic intent. The record before the court therefore clearly demonstrates Owens used only
the amount of force necessary to protect himself from attack and gain control of an inmate.3
The facts before the court establish a need for the use of force and show the amount
of force used by Owens was reasonable in light of the circumstances created by Smith.
Consequently, the court concludes Owens did not apply force maliciously and sadistically
for the purpose of causing harm to Smith but did so in a good faith effort to maintain
discipline. Owens is therefore entitled to summary judgment in this case.
A separate order will accompany this memorandum opinion.
Done this 31st day of January, 2012.

/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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The fact correctional officials ensured Smith received medical treatment within a few minutes of the
altercation is another reason which supports the finding of a lack of malicious or sadistic conduct. Also, Smith does
not allege the defendant, in applying force, used threatening or abusive language. See Bozeman v. Orum, 422 F.3d
1265, 1271 n.11 (11th Cir. 2005) (explaining that, although mere words are not determinative of bad faith on the part
of correctional officers in their use of force, “threatening language as part of the totality of the circumstances can be
relevant to what is constitutionally reasonable,” and may be relevant in the determination of reasonable inferences
which can be drawn regarding the officers’ subjective state of mind). Moreover, unlike the inmate plaintiff in Skrtich,
the defendant did not electrically stun Smith, repeatedly seek to harm him nor beat him unconscious, and Smith did
not require medical treatment at an off-site hospital. After the altercation with Owens, Smith required only cursory
treatment from correctional medical personnel for relatively minor injuries. Smith likewise does not dispute he
caused injuries to Owens during the altercation by kicking and biting him nor does he dispute he continued to kick
at Owens even after another officer intervened.

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