Cherry v. Sherin
Filing
38
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 2/28/12. Copy sent Yes(tdai, )
IN THE UNITED
FOR THE
STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
Richmond Division
DARRYL L.
CHERRY,
Plaintiff,
v.
Civil Action No.
3:10CV434
OFFICER SHERIN,
Defendant.
MEMORANDUM OPINION
Plaintiff Darryl
L.
Cherry,
pro se and in forma pauperis,
U.S.C.
§
1983.
correctional
where
Cherry
officer
Cherry was
Cherry7 s
Eighth
at
housed
a Virginia prisoner proceeding
brings this action pursuant to 42
asserts
Deerfield
at
the
Amendment2
that
Correctional
time
right
Defendant
of
to
Shearin,1
Center
the
incident,
freedom
from
a
("DCC")
violated
cruel
and
unusual punishment by shoving him in the back while performing a
search.
This
matter
is
now
Motion for Summary Judgment.
before
the
(Docket No.
23.)
the appropriate Roseboro3 notice to Cherry.
1 The
Court
notes
that
the
Officer
Cherry's complaint is actually Officer
hereafter will refer to Shearin by the
Court
on
Shearin's
Shearin provided
(Docket No.
Sherin
25.)
referred to in
M. Shearin.
The Court
correct spelling of her
name.
2 "Excessive bail shall not be required, nor excessive fines
imposed,
Const,
nor
amend.
cruel
and
unusual
punishments
inflicted."
VIII.
3 Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).
U.S.
Cherry has responded.
(Docket Nos.
32, 33.)
The matter is ripe
for disposition.
I.
Standard for Summary Judgment
Summary judgment must be rendered "if the movant shows that
there
is
movant
Civ.
no
is
P.
genuine
entitled
56(a).
dispute
to
It
is
the
judgment
to
motion,
and
See
the
Celotex
"[W]here
trial
Corp.
the
on
a
properly
the
be
made
a
Id. at 324
pleadings
answers
to
trial.'"
Id.
(1986)).
which
issue
of
material
fact.
U.S.
317,
the
burden of
solely
on
interrogatories,
(quoting
(1986).
proof at
may
pleadings,
admissions
on
When the
the nonmoving party must go beyond
citing
showing
the
motion
the
and
for
323
reliance
by
seeking
record
judgment
to
R.
the
bear
basis
the
of
477
the
Fed.
party
summary
interrogatories,
facts
the
(internal quotation marks omitted).
and,
^specific
law."
a
motion is properly supported,
the
of
and
parts
genuine
issue,
in
answers
matter
fact
of
Catrett,
dispositive
material
court
the
of
v.
a
nonmoving party will
depositions,
file."
inform
absence
as
any
responsibility of
identify
demonstrate
to
judgment
summary
to
as
and
that
former
affidavits
admissions
there
Fed.
R.
is
a
Civ.
or
on
xx ^depositions,
file,'
genuine
P.
56(c)
designate
issue
and
for
56(e)
In
draw
reviewing
all
a
justifiable
party."
United
832,
(4th
Cir.
U.S.
242,
835
Inc.,
summary
477
judgment
inferences
States
v.
1992)
255
in
Carolina
(citing
(1986)).
motion,
the
favor
of
Transformer
Anderson
However,
v.
court
the
nonmoving
Co.,
978
Liberty
a mere
Anderson,
at
for the
"[T]here
is
a preliminary question
whether there is literally no evidence,
. . . upon whom the
onus
Lobby,
477 U.S.
judge,
not
but whether there is any
upon which a jury could properly proceed to
the party
F.2d
scintilla of
evidence will not preclude summary judgment.
251.
"must
find a verdict
of proof is imposed."
for
Id.
(internal quotation marks omitted).
Additionally,
"*Rule 56 does
not
impose upon the district
court a duty to sift through the record in search of evidence to
support a party's opposition to summary judgment.'"
Barr,
19
F.3d
1527,
1537
Tenneco Resins,
Inc.,
953 F.2d 909,
see Fed.
R.
Civ.
cited materials
of
the
Motion
complaint,
the
her Motion for
P.
(5th
56(c)(3)
. . . .").
for
Summary
materials
Cir.
1994)
915 & n.
Forsyth v.
(quoting
7
Skotak
(5th Cir.
v.
1992));
("The court need consider only the
Therefore,
Judgment
that
Shearin
Summary Judgment,
the
is
Court's
based
upon
submitted
in
and the
materials
disposition
the
sworn
support
of
that Cherry
submitted in opposition to the Motion for Summary Judgment.
In
support of her Motion for Summary Judgment,
Shearin has
submitted her own affidavit and those of Sergeant D. Shearin4 and
R. Brown.5
(Mot. Summ. J. Ex. I ("Shearin Aff.").)
submitted copies of Cherry's medical records.
at
4-11.)
In response,
Shearin also
(Docket No.
24-3,
Cherry submitted his sworn complaint and
attached copies of his informal and formal grievances concerning
this incident,
also
as well as copies of his medical records.
submitted
"OPPOSITION
OF
JUDGMENT."
Of
his
IN
and
a
SUPPORT
sworn
OF
document
MOTION
entitled
FOR
SUMMARY
(Docket No. 33 ("Opposition Memorandum").)6
declaration
must
evidence.
See
in
personal
affidavit
MEMORANDUM
course,
statement
own
Cherry
the
set
Fed.
the
facts
out
R.
facts
Civ.
affidavit
knowledge,
offered
set
or
out
by
that
P.
affidavit
would
admissible
To
that
sworn declaration
that
sworn
be
56(c)(4).
facts
or
would
"must
end,
the
made
on
admissible
be
be
in
in
evidence, and show that the affiant or declarant is competent to
testify
on
the
matters
stated."
Fed.
R.
Civ.
P.
56(c)(4).
4 Sgt. Shearin is a staff member at DCC who is not related
to the defendant,
Aff.")
Shearin.
(Mot. Summ.
J. Ex. II ("Sgt. Shearin
flfl 1, 3.)
5 R.
Brown
Correctional
is
the
Center.
Health
(Mot.
Administrator
Summ.
J.
Ex.
Ill
at
St.
Bride's
("Brown
Aff.")
SI 2.)
6 Cherry also submits a Motion for Leave to Amend requesting
permission
to
affidavits
largely
submit
two
repeat
more
the
of
his
sworn
own
affidavits.
statements
Complaint and Opposition Memorandum.
Nevertheless,
for Leave to Amend (Docket No. 35) will be granted.
in
These
Cherry's
the
Motion
Therefore,
"summary judgment affidavits
based upon hearsay."
80
F.3d
954,
962
(4th
(citing Rohrbough
Cir.
1246,
1990);
1252
Md.
v.
1996)
Wyeth Labs.,
be
conclusory or
Applications
(internal
Inc.,
916
& Serv.
Co.,
citations
omitted)
F.2d 970,
975
Maryland,
(4th
933 F.2d
1991)).
Complaint
and
Opposition Memorandum run afoul of these basic principles.
For
example,
of
Cir.
Techs.
Highways Contractors Ass'n v.
(4th Cir.
Several
Evans v.
cannot
in
statements
his
from
the
statements
Opposition
fellow
if
offered by Cherry,
R. Evid.
801, 802.7
following facts
are
for summary judgment.
Memorandum,
inmates
him and Defendant Shearin.
in
Cherry
concerning
(Opp'n Mem.
would be
Cherry's
the
5.)
relates
several
incident
between
Those statements,
inadmissible hearsay.
See
Fed.
In light of the foregoing principles, the
established for the purposes of the motion
And,
all permissible inferences are drawn
in favor of Cherry.
7
about
Of course, if the other inmates were to testify in court
their
personal
knowledge
that
would be
admissible.
And,
if they had submitted affidavits outlining what they would
testify about, those affidavits could be considered assuming
they
that
were based on personal knowledge and posited information
was
otherwise
admissible.
That,
however,
is
not
the
current
state
of
the
record.
II.
A.
On
room
Summary of Pertinent Facts
Use of Excessive Force Against Cherry
or
at
about
DCC.
June
6,
(Compl.
2008,
4.)
Cherry
leaving
placed
Cherry
was
his
the
tray
dining
in
appropriate tray slot and prepared for a pat down search.
Cherry placed himself
in
and his
air.
felt
this
in
upper
(Id.)
floor.
under
to
who
and
found
(Id.)
Shearin,
[him]"
Cherry
(Id.)
Shearin.
extended."
too
close
was
(Id.)
to
Hall."
" [A] 11
back
prevent
that
of
a
sudden
[Cherry]
[him]
knocking
stun
Cherry managed to "kick
himself
himself
from
looking
falling
up
at
[his]
to
Sergeant
the
D.
Cherry then turned and looked at the defendant,
me.'"
"standing
The
there
defendant,
(Id.)
xWoman just do your job,'
hall
(Id. )
[his]
leg
force
the
(Id.)
of Shearin with his back to her
down to the floor."
[him]
left
hands
front
the
with
Shearin,
"[Cherry]
. . . then
both
hands
stated,
raised
back
[Cherry exited]
fully
"^Don't
up
get
saying,
the Dining
(Id. at 5.)8
For her part, Shearin states that she "was in the dining
. . . observing the offenders, moving around and holding
the doors for offenders in wheelchairs."
(Shearin Aff. § 4.)
Shearin swears that she "[does] not recall ever seeing Cherry or
seeing any offender fall."
(Id.)
Shearin further avers that
she "did not assault offender Cherry in any way as he alleges in
his law suit."
(Id.)
Sergeant Shearin also swears that
"[Defendant Shearin] did not push or assault offender Cherry as
he alleges."
(Sgt. Shearin Aff. 1 4.)
B.
Cherry's Injuries
Cherry
any
does
significant
Cherry
states
headaches,
pain
in
further
due
"[a]s
stiffness
back,
alleges
complain
pain
that
from
his
not
and
that
he
Shearin's
time
in
pain
he
the back of my neck."
to
that
in
(Id.)
actions.
progressed,"
his
feels
immediately
neck,
his
"like
he
pain
left
Nevertheless,
began
in
knee.
needles
experienced
his
to
shoulders,
(Id. )
[are]
suffer
Cherry
sticking
in
Cherry asserts that,
Daily I struggle with this pain.
The doctor and
I for the concern of my health have come to the
conclusion that
[I] should not take the medication
continually for fear what the medicine might do to my
internal
organs
leaving
me
have
to
deal
with
headaches, headflashes, neck pain upper and lower back
pain, the nerve that run down from my back (lower)
through my left leg and left knee.
Also shoulder pain
from time to time.
(Opp'n Mem. 7 (capitalization corrected).)
Cherry's medical records,
knee
and
with
Shearin.
shoulder
shoulder
and
incident.9
problems
Brown
knee
that
says,
problems
(Brown Aff.
however,
in
predate
his
existed
^lSI
indicate that Cherry had
4-10.)
his
alleged
affidavit,
prior
to
the
encounter
that
Cherry's
June
6,
2008
Brown notes that Cherry's
9 The record suggests that Cherry was moved to St. Bride's
sometime
after
he
filed
his
complaint
on
June
28,
2010
(see
Compl.
1
(suggesting that Cherry was housed at Greensville
Correctional Center at the time of filing)), and remained there
until approximately August 30, 2011.
(See Docket No. 36 (letter
from St. Bride's indicating that Cherry had been transferred to
another facility).)
Brown swears that he has personal knowledge
of Cherry's medical conditions.
(Brown Aff. SI 2. )
medical
records
reflect
staff in January,
shoulders.
reveal
February,
(Brown Aff.
that
that
Cherry
n
was
Cherry
was
seen
by
the
and August of 2004 for pain in both
4-6.)
again
Cherry's medical records also
seen
by
medical
personnel
shoulder pain in January 2005 and November of 2006.
9.)
medical
for
(Id. 1SI 7-
Further,
[Cherry's
March
26,
medical
2008
[more
r]ecords
than
two
reflect
months
[that]
before
the
on
June
6, 2008 incident] Cherry complained of right leg pain.
Cherry stated he injured himself while shadowboxing.
The doctor noted that the pain Cherry described was
sciatic nerve pain and that Cherry was satisfied with
the explanation because he stated he had [that] injury
before.
(Id.
"31 10.)
With
until
respect
June
13,
to
2008
the
to
June
visit
6,
2008
incident,
the medical
Cherry
department.
waited
At
visit,
Cherry stated that on June 5, 2008, while exiting the
dining hall he was pushed from behind and almost fell
Cherry stated that he works out daily,
to the floor.
jogs, shadow boxes, and lifts weights.
Cherry stated
he began having headaches six days ago along with
stiffness in his neck.
He stated he had pain in both
shoulders,
his lower back,
his neck and his knee.
Cherry was asked to rate his pain on a scale of 1 to
10.
He rated his pain to be a 4 and stated it was not
constant.
Cherry was prescribed Motrin for the pain.
(Id.
SI 11.)
that
III.
To
survive
summary
Analysis
judgment
on
an
Eighth Amendment
claim,
an inmate must demonstrate that "*the prison official acted with
a sufficiently culpable state of mind
(subjective component)
and
. . . the deprivation suffered or injury inflicted on the inmate
was
sufficiently
Shreve,
535
F.3d
11
Benjamin,
225,
F.3d
be
punishment
Wilson v.
(4th Cir.
756,
from
intentionality,
properly
(objective
238
spring
requirements
absent
serious
called
cannot
Seiter/
established with
a
761
the
component).'"
2008)
(4th
text
condition
1996)).
the
imposed on
an
called
501
and unusual.'"
U.S.
^cruel
294,
regard to
298-300
each
absent
Id.
F.3d
at
761
(quoting
Hudson
v.
^varies
McMillian,
such
(citing
"What must be
according
the nature of the alleged constitutional violation.'"
77
cannot
severity,
(1991)).
component
itself;
inmate
and
v.
"These
amendment
^punishment,'
be
v.
(quoting Williams
Cir.
of
Iko
503
to
Williams,
U.S.
1,
5
(1992)) .
A.
Excessive Force Inquiry
When an inmate claims that prison officials used excessive
force
against
his
person,
demanding relative to
the
objective
component
the subjective component.
respect to the objective component,
that the "nature" or amount of
is
See id.
less
With
the inmate must demonstrate
force employed "was nontrivial."
Wilkins v. Gaddy, 130 S. Ct. 1175,
1179 (2010); see id^ at 1178
(observing
that
injury almost
claim"
the
of
component,
v.
an
effort
maliciously
and
503 U.S.
assist
Supreme
courts
wantonness."
omitted).
in
must
312,
causes
a valid
at
rko,
U.S.
to
state
inmate
pain.'"
475
that
U.S.
to
discernible
excessive
demonstrate
535
322
F.3d
at
(1986)).
or
the
"^wantonness
239
(quoting
Specifically,
subjective component
restore
cause
force
Regarding
^whether force was
maintain
sadistically
no
9)).
regarding the
force claim is
good-faith
The
to
503
judicial inquiry'
excessive
Hudson,
shove'
fails
the
of
Albers,
xcore
or
Hudson,
infliction
Whitley
"the
^push
certainly
(quoting
subjective
in
"a
applied in a
discipline,
harm.'"
Id.
or
(quoting
at 7) .
Court
has
identified
assessing
Iko,
535
whether
F.3d
at
a
an
239
number
officer
(internal
of
"factors
has
acted
quotation
to
with
marks
These include:
(1) *the need for the application of force' ; (2) xthe
relationship between the need and the amount of force
that was used';
(3) the extent of any reasonably
perceived threat that the application of force was
intended to quell; and (4) ^any efforts made to temper
the severity of a forceful response.'
Id.
(quoting Whitley,
not dispositive,
475 U.S.
at 321).
Additionally,
the extent of the injury suffered by the inmate
is also relevant to the subjective inquiry.
at
of
1178.
force
although
Wilkins,
130 S. Ct.
The extent of the injury "may suggest whether the use
could
plausibly
have
10
been
thought
necessary
in
a
particular situation" or "provide some indication of the amount
of
force
applied."
Id.
(internal
quotation
marks
omitted).
Comments or actions by a defendant suggesting a malicious motive
also
are
relevant
Rephann,
523
evidence
force
of
to
F.3d
the
442,
"From
drawn as
to
thought
necessary,
to
or
321
(emphasis added)
652
(7th Cir.
or
Shearin
does
with
a
the
"standing
4.)
inference
10
2008)
(observing
relevant
to
the
v.
that
excessive
inferences
may
be
force could plausibly have been
evinced
such
infliction of
that it
harm as
occur."
(citing Duckworth v.
wantonness
is
Whitley,
Franzen,
with
tantamount
475
U.S.
at
780 F.2d 645,
1985)) .
feeling
(Compl.
is
Orem
Analysis of Cherry's Claim
Cherry
after
See
considerations
instead
unjustified
inquiry.
Cir.
motives
such
a knowing willingness
weapon
(4th
whether the use of
to the
B.
subjective
447
defendant's
inquiry).
respect
the
that
From
not
assert
closed
fist
"force"
there
this
Shearin
that
Shearin
blow.
contact
with
his
both
description,
pushed
Cherry
struck
Rather,
back,
hands
the
he
he
her
with
states
turned
fully
Court
with
him
a
that,
and
saw
extended."
can
open
draw
the
palms.10
Of course, given the facts of record, it could also be
inferred that the extended hands were a demonstrative warning
that accompanied her verbal statement "don't get too close to
me," made while Cherry was getting up.
And, if that is the
inference that is drawn, the record is of dubious probative
effect respecting any proof that Shearin even shoved Cherry.
11
Although,
by
pushing
unprofessionally,
Cherry,
no
Defendant
reasonable
jury
Shearin
could
may
have
conclude
acted
that
her
conduct supports an inference of malicious and sadistic intent.11
"The Supreme Court has instructed that
*not every push or shove,
even if it may later seem unnecessary in the peace of a judge's
chambers,
violates
a
Stanley v.
Hejirika,
134
Hudson,
503
U.S.
at
prisoner's
F.3d 629,
9.)
constitutional
636
(4th Cir.
Accordingly,
and
rights.'"
1998)
for
(quoting
the
reasons
articulated more fully below, Cherry's claim will be denied.
1.
Need for the Application of Force
Cherry states that he was standing with his back to Shearin
and
that
his
"hands
[were]
contact his upper back.
Shearin stated,
in
the
(Compl.
"Don't get
air"
4.)
when
Then,
he
felt
a
"force"
Cherry claims,
too close to me."
(Id.)
that
Shearin's
comment indicates that she perceived a threat from Cherry due to
his
close
Shearin
proximity
gave
Cherry
her.
any
Nothing
verbal
indicates,
was
the
favorable to
that
his
that
conduct
the inference most
warning
however,
Though this factor marginally favors Cherry,
inappropriate.
However,
to
Cherry is that Shearin
shoved him.
11
"One
acts
cause or reason,
a
^maliciously'
in contrast, one acts
excessive cruelty or
Barnett,
Third
New
21
F.3d
by
undertaking,
course of action intended to
^sadistically'
by delighting
868,
International
872
(8th
by engaging in
in cruelty."
Cir.
Dictionary
without
1994)
1367,
just
injure another;
(citing
1997-98
extreme or
Howard v.
Webster's
(unabridged
1981); Black's Law Dictionary 956, 958, 1336 (6th ed. 1990); The
American Heritage Dictionary 759, 1084 (2d ed. 1982)).
12
record
does
not
maliciously
that
or
"[t]he
security
permit
degree of
infliction
.
.
.
to
pain
does
it
find
Moreover,
of
simply because
in
not
that
the
the
amount
may appear
Shearin
Court
course
to
in
is
of
cruel
acted
mindful
a
and
prison
unusual
retrospect that
the
force authorized or applied for security purposes was
unreasonable,
Whitley,
jury
sadistically.
measure
punishment
a
475
applied,"
and
U.S.
id.,
hence
at
unnecessary
319.
Here,
in
the
though
perhaps
not
it
assumed
that
the
"degree
strictly
strict
of
sense."
force
.
.
necessary,12
.
was
slight.
In
Shearin
sum,
if
shoved
Cherry,
separate Cherry,
thought
he
was
judgment but
is
proof
would
that
so
to
a physically fit
inmate,
from her because
she
it does not
That
certainly
may
did
that
appear
close.
she
show
would
too
it
the
reflect
poor
amount to cruel and unusual punishment
and no jury could reasonably find that it was.
2.
Relationship
Between
any Need
and the Amount
of
Force
Cherry has submitted no
or
felt
Instead,
12
significant
discomfort
Cherry states that,
The
Court
evidence that he cried out in pain
after
Shearin
pushed
after Shearin pushed him,
recognizes
the
necessity
of
he
him.
stood
evaluating
Shearin's actions with "the appropriate hesitancy to critique in
hindsight decisions necessarily made in haste, under pressure,
and frequently without the luxury of a second chance."
Whitley,
475
U.S.
at
320.
13
up,
made a comment,
5.)
Nor
did
and walked out of the dining hall.
Cherry
seek
immediate
medical
(Compl.
attention.
(Id.
(stating that Cherry did not request medical evaluation for five
days
after
the
incident).)
medical attention,
Aff.
SI
11.)
applied
eventually
sought
he received only Motrin for his pain.
(Brown
These
[by
factors
Shearin]
When
Cherry
indicate
was
not
"that
Barriet,
No.
I:10cv703
at
Va.
13,
2011)
(E.D.
1178.)
was
Thus,
slight,
the
3.
much
less
(TSE/IDD),
of
powerful."
2011 WL
(citing Wilkins,
force
130
2728933,
S.
Ct.
at
though Shearin's need to use force against Cherry
related to that
Shearin
July
amount
extraordinarily
Robertson v.
*2
the
actual
force
used,
a
shove,
was
reasonably
need.
Extent of Shearin's Reasonably Perceived Threat
denies
shoved
that
she
him.
even
(Shearin
saw
on
f
Aff.
Cherry
Thus,
4.)
June
6,
the
2008,
record
provides no insight into the extent of the perceived threat from
Cherry.
The
Court
can
only
draw
comment Cherry contends
that
to
Shearin
me,"
that
Defendant
the
bare
Shearin made,
felt
inference
from
the
"Don't get too close
affronted
to
some
degree.
(Compl. 4.)
4.
Shearin's
Efforts
to
Temper
the
Severity
the
Court
of
her
Response
Likewise,
Shearin's
evidence that Shearin made,
denial
leaves
or did not make,
14
without
an effort to temper
her response to
of
Shearin's
inference
F.3d at
Cherry.
perception,
that
Shearin
As
of
the
"delight[ed]
in
evidence
raises
cruelty."
the
Howard,
21
suggest
or
Shearin's Lack of Malicious Motive
stated
contradict
above,
a
"Don't
get
inference
too
that
she
the
Shearin
perceived
Further,
Cherry
history
of
had
comment
motive
2011)
No.
(the
motive
to
523
me"
a
that
does
are
(Compl.
relevant
4),
to
the
Shearin's comment,
does
motive
the
which
in
not
support
pushing
reasonable
an
Cherry.
inference
that
Cherry
was
acting
inappropriately.
assert
that
he
Shearin
that
would
wanton
3:07cv591,
fact
also
malicious
not
was
comments
F.3d at 447.
supports
conflict
Inc.,
defendant's
Orem,
close
Rather,
Shearin's
a
malicious
subjective inquiry.
18,
none
even without the benefit
872.
5.
Group,
Nevertheless,
or
and
support
plaintiff
and
an
inference
See
malicious.
2011 WL 166289,
that
had
Majette
at *5
(E.D.
that
v.
Va.
defendant
any
GEO
Jan.
"had
a
contentious history" favors a finding of malicious intent).
6.
Cherry's Injuries
Although not dispositive,
the extent of the injury suffered
by the inmate is relevant to the
130
S. Ct.
force
injury
are
"may
at
1178.
"only
Wilkins/
Though the relationship between injury and
imperfectly
suggest
subjective inquiry.
whether
correlated,"
the
15
use
of
the
force
extent
could
of
the
plausibly
have
been
thought
necessary
"provide some indication of
in
a
particular
the amount of
situation"
force applied."
or
Id.
(internal quotation marks omitted).
"[T]he
belie
the
relatively
notion
Amendment."
U.S.
at
that
Majette,
322).
just
do
your
current
[had]
medical
conflict
10.)
as
that
as
a result
of
"[rise]
the
did
June
11,
2008,
he
Eighth
475
suffered any
Shearin's
hall.
manifest
Indeed,
the
actions.
back up saying,
dining
not
[Cherry]
(citing Whitley,
indicate
(Id.)
until
*6
violated
not
exit
ailments
Cherry's
suffered
with
Thus,
^Woman
(Compl.
themselves
5.)
until
Cherry did not request
five
days
after
the
on
and
June
support
shoulder
6,
Shearin's use of
malicious
Williams
(concluding
continuous
knee
records
pain
2008.
(See
the
well
inference
before
his
n
4-
Brown Aff.
the proof respecting the extent of Cherry's injuries
establishing
Shearin.
medical
from
Shearin
a result of
2011)
conduct
by
(Id.)
Moreover,
he
and
progressed."
evaluation
incident.
that
does
discomfort
job,'"
sustained
2011 WL 166289 at
Cherry's response was to
Cherry's
"time
injuries
[Shearin's]
Cherry
immediate pain or
Rather,
minor
v.
and
sadistic
Scott,
433 F.
that
headaches,
force do
plaintiff's
were
of
a
not weigh in favor of
intent
on
App'x 801,
injuries,
"modest
the
804
neck
variety"
part
(11th Cir.
pain,
which
counter to a finding of malicious and sadistic intent.").
16
of
and
"runs
Shearin's
fail
to
other
most
rise
words,
actions,
to
the
the
while
level
weight
favorable to
of
of
Cherry,
perhaps
"maliciously
sadistically
Whitley,
omitted).
475
U.S.
For
the
foregoing
(Docket No.
be dismissed and the
The
to
a
violation.
viewed
reasonable
ill-advised,
in
inference
maintain good order,
for
the
320-21
very
purpose
(internal
the
In
light
that
rather than
of
causing
quotation
marks
Accordingly, Cherry's claim will be dismissed.
IV.
Judgment
evidence,
supports
an effort
harm."
constitutional
the
Shearin acted in
and
a
improper and
Clerk
is
23)
Conclusion
reasons,
Shearin's
Motion
will be
granted.
Cherry's
for
Summary
claim will
action will be dismissed.
directed
to
send
a
copy
of
the
Memorandum
Opinion to Cherry and counsel of record.
It
is
so ORDERED.
/s/
&?
Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date: February 7^, 2012
17
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