                                                            [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                      FILED
                         ________________________          U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 October 24, 2006
                                No. 06-11930                  THOMAS K. KAHN
                            Non-Argument Calender                 CLERK
                          ________________________

                      D. C. Docket No. 03-03029-CV-CC-1

GARY D. MULLIS,

                                                                  Plaintiff-Appellee,

                                     versus

COBB COUNTY BOARD OF COMMISSIONERS, et al.,

                                                                        Defendants,

SGT. WILLIAMS,
Shift Commander,

                                                            Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                        _________________________

                               (October 24, 2006)

Before TJOFLAT, CARNES and PRYOR, Circuit Judges.

PER CURIAM:
       This is a prisoner civil rights action brought under 42 U.S.C. § 1983. The

plaintiff, Gary Mullis, claims that while he was an inmate at the Cobb County

Adult Detention Center (the “Detention Center”),1 Sergeant Michael Williams, the

shift commander, used excessive force in violation of the Eighth and Fourteenth

Amendments in removing a homemade necklace that, according to Williams,

Mullis was wearing in violation of the Center’s rules and the standards contained

in the inmate handbook. Williams plead qualified immunity as a defense to

Mullis’s claim and filed a motion for summary judgment. The court denied the

motion and thus rejected that defense. In this interlocutory appeal, Williams

challenges the court’s rejection of his qualified immunity defense.

       As an initial matter, we note that a district court’s denial of qualified

immunity on summary judgment “is an immediately appealable order, provided

that it concerns [as in this case] solely the pure legal decision of (1) whether the

implicated federal constitutional right was clearly established and (2) whether the

alleged acts violated that law.” Koch v. Rugg, 221 F.3d 1283, 1294 (11th Cir.

2000) (emphasis in original). In reviewing the court’s ruling, “we do not make

credibility determinations or choose between conflicting testimony, but instead

accept Plaintiff’s version of the facts drawing all justifiable inferences in Plaintiff’s


       1
         Mullis had been booked into the Detention Center on a probation violation warrant on July
2, 2003. The incident complained of occurred on July 23, 2003.

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favor.” Bozeman v Orum, 422 F.3d 1265, 1267 (11 th Cir. 2005).

      We have often stated that “[q]ualified immunity offers complete protection

for government officials sued in their individual capacities as long as their conduct

violates no clearly established statutory or constitutional rights of which a

reasonable person would have known.” Valdes v. Crosby, 450 F.3d 1231, 1236

(11th Cir. 2006). “In order to receive the protection of qualified immunity, the

government official must first prove that he was acting within the scope of his

discretionary authority when the allegedly wrongful acts occurred.” Id. at 1236.

There is no dispute in this case that Williams was acting within the scope of his

discretionary authority as a shift commander at the Detention Center.

      “Once eligibility for qualified immunity is established, the burden shifts to

the plaintiff to show that qualified immunity is not appropriate.” Valdes, 450 F.3d

at 1236. We explained that:

      First, we ask, do the facts alleged show the government official’s
      conduct violated a constitutional right? If a constitutional violation is
      established, based on the facts in the light most favorable to the
      plaintiff, we then must determine whether such conduct would have
      violated federal law that was clearly established at the time of the
      incident.

Id. (internal citations and quotations omitted).

       Thus, the first question in the analysis is whether Williams violated Mullis’s

Eighth Amendment right to be free from cruel and unusual punishment. “The

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Constitution does not mandate comfortable prisons, but neither does it permit

inhumane ones, and it is now settled that the treatment a prisoner receives in prison

and the conditions under which he is confined are subject to scrutiny under the

Eighth Amendment.” Valdes, 450 F.3d at 1236. “In its prohibition of ‘cruel and

unusual punishments,’ the Eighth Amendment places restraints on prison officials,

who may not, for example, use excessive physical force against prisoners.” Id.

       Under the Eighth Amendment standard, “whether or not a prison guard’s

application of force is actionable turns on whether that force was applied in a good

faith effort to maintain or restore discipline or maliciously or sadistically for the

very purpose of causing harm.” Bozeman, 422 F.3d at 1271.2 “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.” Skrtich v. Thornton, 280 F.3d 1295, 1300

(11th Cir. 2002) (internal citations omitted). “From consideration of such factors,

inferences may be drawn as to whether the use of force could plausibly have been


       2
          We explained in Bozeman that, even though the plaintiff in that case was a pretrial
detainee alleging the use of excessive force in violation of the Fourteenth Amendment’s Due
Process Clause, we applied the standard used to assess excessive force claims by convicted
prisoners under the Eighth Amendment. Bozeman, 422 F.3d at 1271.

                                             4
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.” Id. at 1300-01 (internal citations omitted). We have also noted that

“words-alone-are far from determinative of bad faith on the part of [officers] . . .

such language is used by law enforcement officers ‘to attempt to defuse a situation

before the actual use of force is imminent.’” Bozeman, 422 F.3d at 1272 n.11.

       Additionally, the Supreme Court explained in Hudson “that [not] every

malevolent touch by a prison guard gives rise to a federal cause of action” and that

“[t]he Eighth Amendment’s prohibition of ‘cruel and unusual’ punishments

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.’” Hudson, 503 U.S. at 9-10, 112 S.Ct. at 1000 (holding that the Fifth

Circuit erred in holding the prisoner’s claim “untenable” based on his injuries

being “minor” because the blows directed at the prisoner, which caused bruises,

swelling, loosened teeth, and a cracked dental plate, were not de minimis for

Eighth Amendment purposes).

      On the record before us in this case, we do not hesitate in concluding that the

district court erred in failing to grant Williams summary judgment based on his

qualified immunity defense. Mullis failed to establish, first, that Williams violated



                                           5
his Eighth Amendment right to be free from cruel and unusual punishment.

Williams’s application of force was not actionable under the Eighth Amendment

because it was applied in a good faith effort to maintain discipline rather than

maliciously or sadistically for the purpose of causing harm. In fact, the statements

of Mullis’s fellow inmates and Mullis’s deposition testimony support the need for

the force Williams applied. Moreover, the relationship between the need and the

amount of force was reasonable. Neither Mullis nor the other inmates stated that

Williams’s actions extended beyond grabbing and holding onto Mullis to remove

the necklace. And Mullis stated that Williams neither struck him nor kicked him

and only held him against the door until it could be manually opened.

Furthermore, none of the inmates’ statements set forth any injuries suffered by

Mullis because of Williams’s actions, and Mullis provided no evidence of injuries.

Nothing in the record establishes that Williams’s actions injured Mullis. Mullis’s

treating doctor stated, and the medical records reflect, that Mullis sought treatment

two days after the incident for his hernia and heartburn condition and, at that time,

never referred to any injuries supposedly caused by Williams.

      In sum, the evidence viewed in the light most favorable to Mullis fails to

establish that Williams violated his Eighth Amendment right to be free from cruel

and unusual punishment. Williams was entitled to qualified immunity. The



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district court’s ruling denying him that defense is accordingly reversed.

      SO ORDERED.




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