Whitaker v. Lancaster et al
Filing
119
MEMORANDUM OPINION re 118 Final Judgment Dismissing Case. Signed by Michael P. Mills on 6/11/13. (mhg)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
TIMMY DALE WHITAKER
PLAINTIFF
v.
No. 1:10CV254-M-V
DAVID LANCASTER, ET AL.
DEFENDANT
MEMORANDUM OPINION
This matter comes before the court on the pro se prisoner complaint of Timmy Dale
Whitaker, who challenges the conditions of his confinement under 42 U.S.C. § 1983. For the
purposes of the Prison Litigation Reform Act, the court notes that the plaintiff was incarcerated
when he filed this suit. In an earlier memorandum opinion and final judgment, the court
dismissed all claims and defendants – except Whitaker’s claim of excessive force against
defendant Mike Shipman. The court requested and received additional briefing as to the extent
of Whitaker’s injuries arising out of the incident. The matter is ripe for resolution. For the
reasons set forth below, the instant case will be dismissed for failure to state a claim upon which
relief could be granted.
Discussion
The sole remaining claim in this case is Whitaker’s allegation that defendant Mike
Shipman used excessive force against him. Medical records, including an exam approximately
eight hours after the incident, and x-rays taken the same day, showed nothing more than de
minimis injury. A free world doctor examined and treated Whitaker about eight hours after the
incident. He complained that his ear and jaw were sore, that his jaw was “mashed in,” that his
left ear was ringing so much that he could not hear out of it, and that his elbow hurt. The doctor
found that the left side of Whitaker’s jaw was slightly swollen and tender, but with full range of
motion. No medical personnel made any reference to Whitaker’s jaw being “mashed in.”
Whitaker’s left ear canal was also slightly swollen; however, the doctor determined Whitaker’s
hearing to be intact from performing several tests, including speaking to him from behind on
both the right and left sides, then whispering to him from more than five feet away. Whitaker
heard and responded each time. In addition, the doctor found that Whitaker’s elbow was
“tender” to the touch when he brought his arm near his chest. The doctor further found that
Whitaker’s lungs sounded “coarse” from smoking. The doctor ordered x-rays of Whitaker’s
head and elbow and prescribed non-steroidal anti-inflammatory (“NSAID”) medication and ice
packs on Whitaker’s jaw and elbow two to three times per day for two days. The doctor also
recommended that Whitaker stop smoking to prevent further damage to his lungs. In his
response to the court’s request for additional briefing Whitaker claims that in the section entitled
“Doctor’s Orders,” the doctor stated that Whitaker’s jaw bone (calvarium) was “mashed in.”
However, a review of the document reveals that the doctor did not, in fact, make such a
statement. The term “mashed in” appears first when the hospital intake person simply recorded
Whitaker’s complaint, which is not a medical finding. The only other place where the term
“mashed in” appears is on the document containing the results of his head x-ray, and Whitaker,
himself, hand-wrote the term on the document and initialed it. That altered document appears as
an exhibit to Whitaker’s additional briefing; however, the handwritten “mashed in” reference
does not appear in the copy of the same document in the defendant’s brief. Thus, though the
plaintiff complained to the doctor of his jaw being “mashed in,” neither the doctor nor the
personnel conducting and interpreting the x-rays found any such thing. Indeed, the medical
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examinations conducted on the same day of the incident show nothing more than de minimis
injury. Likewise, the x-rays performed also revealed nothing more than de minimis injury.
Excessive Force Discussion
This case presents the court with a claim that a prison official used excessive force
against a prisoner in violation of the Eighth Amendment. A court must balance the
constitutional rights of convicted prisoners with the needs of prison officials to effectively use
force to maintain prison order; to establish liability on the part of defendants the plaintiff must
prove the force was applied “maliciously and sadistically to cause harm,” and not “in a goodfaith effort to maintain or restore discipline . . . .” Hudson v. McMillian, 503 U.S. 1, 6-7, 112 S.
Ct. 995, 117 L. Ed. 2d 156 (1992) (citing Whitley v. Albers, 475 U.S. 312, 320-21, 106 S. Ct.
1078, 89 L. Ed. 2d 251 (1986)); see Rankin v. Klevenhagen, 5 F.3d 103 (5th Cir. 1993). Factors
which are relevant to this issue include, but are not limited to “(1) the extent of the injury
suffered; (2) the need for the application of force; (3) the relationship between the need and the
amount of force used; (4) the threat reasonably perceived by the responsible officials; and, (5)
any efforts made to temper the severity of the forceful response.” Rankin, 5 F.3d at 107 n.5
(citation omitted).
A prisoner need not prove “significant” or “serious injury” in order to prevail in an
Eighth Amendment claim of excessive force. Hudson, 503 U.S. at 7. “The absence of serious
injury is therefore relevant to the Eighth Amendment inquiry, but does not end it.” Id. A de
minimis use of force, however, is insufficient to state a cognizable Eighth Amendment claim.
Jackson v. Culbertson, 984 F.2d 699, 700 (5th Cir. 1993). “Not every malevolent touch by a
prison guard gives rise to a federal cause of action.” Hudson, 503 U.S. at 9 (citation omitted).
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“The Eighth Amendment’s prohibition of ‘cruel and unusual’ punishment 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 (citation omitted).
Moreover, “[i]n cases post-Hudson, ‘certainly some injury is still required.’” Rankin, 5 F.3d at
108; see also Knight v. Caldwell, 970 F.2d 1430 (5th Cir. 1992), cert. denied, 507 U.S. 926, 113
S. Ct. 1298, 122 L. Ed. 2d 688 (1993). A single incident of force or a single blow is de minimis
and thus does not violate the Eighth Amendment. Jackson v. Colbertson, 984 F. 2d 699, 700 (5th
1993). The injury must be more than de minimis, but need not be significant. Indeed a “sore,
bruised ear lasting for three days – was de minimis.” Siglar v. Hightower, 112 F.3d 191, 193(5th
Cir. 1997).
Whitaker has not proved any of the elements necessary to sustain his claim of
excessive force. First, as discussed in detail above, his injuries were de minimis, akin in severity
to the sore, bruised ear in Siglar, supra. Second, Whitaker has conceded in his pleadings that he
was not compliant with the defendant’s orders. He argued with the officers, he looked back at
the officers after being told to turn around. He, at some point, scuffled with the officers. Given
Whitaker’s behavior, certainly some force was necessary to gain his compliance. Third, the
relationship between the need to use force and the amount of force applied was appropriate,
given the de minimis nature of Whitaker’s injuries. Fourth, the defendant could reasonably have
perceived a threat simply from Whitaker’s refusal to do what he was told, to turn away during
the search of his cell. Fifth, it appears that the defendant tempered the severity of his response,
as his actions caused only de minimis injury to Whitaker. In addition, Whitaker complains of
only a single incident of force, which does not, except in extreme circumstances, constitute
excessive force. Jackson, supra. Finally, the use of force – was not of a nature “repugnant to
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the conscience of mankind,” as set forth in Hudson, supra. Under these circumstances,
Whitaker’s claim of excessive force must be dismissed for failure to state a constitutional claim.
A final judgment consistent with this memorandum opinion will issue today.
SO ORDERED, this the 11th day of June, 2013.
/s/ MICHAEL P. MILLS
CHIEF JUDGE
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI
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