William C. Bennett, AKA John A. Richardson v. Garrison A. Parker, Warden, Robert M. Jackson, Officer, Daniel W. Cooper, Officer ( 1990 )

HATCHETT, Circuit Judge.

Although intertwined with issues of jurisdiction and qualified immunity, this appeal concerns the severity of injury to an inmate required to establish a constitutional claim of excessive use of force. Because we find no constitutional violation in that the injury in this case was minimal or nonexistent, we reverse the district court’s denial of summary judgment on motion of the public officials.

I. FACTS

William C. Bennett, a/k/a John A. Richardson, an inmate at Augusta Correctional and Medical Institution, in Georgia, brought this action pursuant to 42 U.S.C. § 1983 against Prison Warden Garrison Parker and prison staff officers Robert M. Jackson and Daniel W. Cooper (appellants). Bennett alleges that on July 13, 1987, at approximately 1 p.m., Jackson and Cooper instructed him to clean up his cell. After Bennett cleaned the cell, Jackson and Cooper refused to allow Bennett to go to the gymnasium as they had earlier promised. When Bennett asked Jackson why he was not being allowed to go to the gymnasium, Jackson replied, “You shut your goddamn mouth,” and “I don’t have to let you go no goddamn where.” Officer Jackson then called Bennett out of the cell, grabbed him by the throat, and said, “Let me tell you something you black ass mother-fucker, I am sick and tired of your goddamn mouth; furthermore nigger, I’ve had it with you.” When Bennett began to struggle, and asked Jackson to remove his hands, Cooper pushed Bennett against the cell bars. According to Bennett, Jackson hit Bennett with a nightstick on the left side of his head, near the eye. Bennett claims that he sought medical treatment later that evening, but the medical staff denied him treatment. The injury to his left eye is still painful. Bennett also alleges that he was denied due process during grievance procedures.

The appellants state different facts. They allege that while Jackson and Cooper were conducting a count of the inmates, Bennett became belligerent and demanded to go to recreation. He began cursing at the officers and creating a disturbance. When Bennett refused to calm down, Jackson and Cooper ordered him outside of his cell into the hallway. Jackson and Cooper state that they never touched Bennett, and therefore they never filed a use of force report. Such a report is mandatory in incidents where force is used. Although sick call is held everyday, Bennett never went to the prison hospital or reported the injury he now alleges.

Because of this disorderly behavior, Bennett received a disciplinary report for insubordination, failure to follow instructions, and disruption of the count of inmates. Bennett pleaded guilty to these charges at a disciplinary hearing.

II.PROCEDURAL HISTORY

Bennett filed this section 1983 lawsuit in the Northern District of Georgia claiming that the appellants violated his constitutional rights through an excessive use of force and failure to provide due process. The appellants filed a motion to dismiss based on the defense of qualified immunity. The district court notified Bennett that it would treat the motion to dismiss as one for summary judgment and advised Bennett of the consequences of a summary judgment motion. In response, Bennett submitted two sworn statements and five unsworn statements from inmates. The district court dismissed the claims against Parker, the warden, finding that the claims against him were based on the doctrine of respondeat superior. The district court denied the motion for summary judgment for Jackson and Cooper because it found that material issues of fact regarding excessive use of force were in dispute. Consequently, the district court rejected the qualified immunity defense.

III.CONTENTIONS OF THE PARTIES

Jackson and Cooper contend that the district court erred by denying their motion for summary judgment. They argue that although they did not use any force, the undisputed facts show that they were entitled to use force against Bennett and, if force was used, Bennett was not injured. As a threshold issue, Bennett contends that the court has no jurisdiction over this appeal because material facts are in dispute. Bennett argues that no force was necessary under the circumstances.

IV.ISSUES

The issues before the court are: (1) whether the court has jurisdiction over this appeal resulting from the denial of summary judgment based on qualified immunity; and (2) whether the district court properly denied Jackson and Cooper’s motions for summary judgment.

V.DISCUSSION

A. Jurisdiction

The United States Supreme Court has held that the appellate courts have jurisdiction over “a district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, [and that it] is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). Whether an official is entitled to qualified immunity is an issue of law. Waldrop v. Evans, 871 F.2d 1030, 1032 n. 1 (11th Cir.1989). Nevertheless, this court has consistently held that denial of a motion for summary judgment based on a claim of qualified immunity is not a final appealable order if the claim is denied because the case turns on factual questions in dispute. Goddard v. Urrea, 847 F.2d 765 (11th Cir.1988); Williams v. Cash, 836 F.2d 1318 (11th Cir.1988); Riley v. Wainwright, 810 F.2d 1006 (11th Cir.1986); Perry v. Thompson, 786 F.2d 1093 (11th Cir.1986).

The existence of material disputed facts will not defeat summary judgment in favor of a public official, however, when the plaintiff “fails to make a showing sufficient to establish the existence of an element essential to [plaintiff’s] case, and on which [plaintiff] will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Facts in dispute cease to be “material” facts when the plaintiff fails to establish a prima facie case. “In such a situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552. Thus, under such circumstances, the public official is entitled to judgment as a matter of law, because the plaintiff has failed to carry the burden of proof. This rule facilitates the dismissal of factually unsupported claims prior to trial.

The doctrine of qualified immunity accomplishes a similar purpose by shielding public officials from civil liability when their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Thus, in this case, for Bennett to defeat Jackson and Cooper’s motions for summary judgment, he must show that their conduct violated clearly established statutory or constitutional rights. See Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir.1989) (burden of proving constitutional violation on plaintiff).¹ Because we hold that Bennett failed to establish a constitutional violation, rendering immaterial any facts still in dispute, we have jurisdiction.

B. Denial of Summary Judgment

On review of the denial of summary judgment based on qualified immunity, to determine whether a plaintiff has sufficiently established a constitutional violation, we follow the standard for a directed verdict under Federal Rule of Civil Procedure 50(a). Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53. If the facts taken in the light most favorable to the plaintiff do not establish a constitutional violation, then the public official should be granted summary judgment as a matter of law. Brown v. Smith, 813 F.2d 1187, 1188 (11th Cir.1987). Our review of the denial of summary judgment based on qualified immunity is plenary. Waldrop v. Evans, 871 F.2d at 1032 n. 1.

Bennett contends that Jackson and Cooper violated his constitutional rights through the use of excessive force. The eighth amendment prohibition against cruel and unusual punishment is triggered when a prisoner is subjected to a “unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986) (citations omitted). The Court found in Albers that the determination of whether a prisoner has suffered unnecessary and wanton pain turns on “whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” 475 U.S. at 320-21, 106 S.Ct. at 1085 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied sub nom. John v. Johnson, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)). In Albers, the Court also adopted three factors set forth in Johnson v. Glick for determining whether a prison guard has used excessive force: the need for the application of force, the relationship between the need and the amount of force used, and the extent of the injury inflicted upon the prisoner. Whitley v. Albers, 475 U.S. at 321, 106 S.Ct. at 1085.

In Brown v. Smith, 813 F.2d 1187 (11th Cir.1987), this court recently used these three factors to determine whether a prison guard’s conduct constituted excessive use of force. We found that force was needed because undisputed evidence showed that Brown had refused to enter his cell when Smith, the guard, ordered him to do so. Smith put his riot baton against Brown’s neck and pinned him against the wall; another officer then assisted Smith in putting Brown back into his cell. Under these circumstances, we found that the amount of force used was justified. We also found that because Brown’s affidavit contained only a conclusory allegation of serious injury without any other supporting evidence, the allegation should be discounted. Accordingly, we concluded that Brown suffered, at most, a minimal injury.

Analyzing this case according to the same factors used in Brown, we conclude that Bennett has not established a constitutional violation. The need for the use of force is established by the undisputed evidence that Bennett created a disturbance. As a result of this incident, Bennett pleaded guilty to disciplinary charges for insubordination, for failure to follow instructions, and for disrupting the count of inmates. We give a wide range of deference to prison officials acting to preserve discipline and security. Brown v. Smith, 813 F.2d at 1188.

In evaluating the relationship between the need and the amount of force used, we weigh the prison's security interest in maintaining order against the force used against Bennett. Although the affidavits of other prisoners attest to the fact that Jackson and Cooper grabbed Bennett by the throat and pushed him against the bars, no other evidence supports his claim that Officer Jackson struck him with a nightstick. Prison guards may use force when necessary to restore order and need not wait until disturbances reach dangerous proportions before responding.

The management by a few guards of large numbers of prisoners, not usually the most gentle or tractable of men and women, may require and justify the occasional use of a degree of intentional force. 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.

Johnson v. Glick, 481 F.2d at 1033. Decisions made at the scene of a disturbance to restore order are entitled to a degree of deference.

Bennett claims that a blow to the head near his left eye caused him considerable and long-lasting pain. Yet, Bennett’s medical records contain no report of head injuries or treatment for pain following the incident, even though he had daily opportunities to seek medical assistance.

In order to survive a motion for directed verdict at trial, Bennett would have to support his claim of excessive use of force by showing “severe injuries,” as required by this court in Shillingford v. Holmes, 634 F.2d 263 (5th Cir. Unit A 1981). Cf. Norris v. District of Columbia, 737 F.2d 1148 (D.C.Cir.1984) (if use of force unjustified, substantial immediate pain with lingering ill effects states a constitutional violation). “The degree of force exerted and the extent of physical injury inflicted that together amounts to a constitutional deprivation must, of course, be determined by the facts of a given case.” Shillingford, 634 F.2d at 265. While we do not require that a prisoner sustain a permanent injury, the prisoner must offer some evidence of injury beyond a minimal one. See Brown v. Smith, 813 F.2d at 1189 (conclusory allegations in inmate’s affidavit discounted absent corroboration); cf. Williams v. Cash, 836 F.2d 1318 (11th Cir.1988) (inmate’s elbow broken); Perry v. Thompson, 786 F.2d 1093 (11th Cir.1986) (prisoner bled after allegedly being struck in face, head, arms, legs, and kicked in the sides and head).

As in Brown, Bennett’s claim of serious injury is only a conclusory allegation, unsupported by any physical evidence, medical records, or the corroborating testimony of witnesses, and we therefore discount it. If Jackson and Cooper struck Bennett, the injury was minimal.

When faced with a motion for summary judgment based on a defense of qualified immunity, the district courts should first focus on whether the plaintiff has established a constitutional violation before determining whether material issues of fact are present. No material issues can be in dispute where the plaintiff’s evidence fails to establish a constitutional violation.

VI. CONCLUSION

We conclude that the amount of force used was appropriate based on the prison’s security interests in maintaining order and the minimal injuries Bennett sustained.² Accordingly, viewed in the light most favorable to Bennett, the evidence will not support a reasonable inference of wantonness in the infliction of pain.

For the foregoing reasons, we hold that this court has jurisdiction and that the district court improperly denied the defendants’ motion for summary judgment. The decision of the district court is therefore reversed, and the case remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

1 . On motion for summary judgment, Bennett could not rely solely on allegations in the pleadings to establish a constitutional violation.

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

Fed.R.Civ.P. 56(e).

2 . We leave for another case the decision whether highly provocative language, such as alleged in this case, when proved, may render unconstitutional any force used to subdue an inmate's reflexive reaction.