              Case: 12-14237   Date Filed: 07/26/2013   Page: 1 of 5


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-14237
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 3:09-cv-00659-TJC-JRK



WALTER NATHANIEL SMITH,

                                                         Plaintiff-Appellant,

                                     versus

SECRETARY, DEPARTMENT OF CORRECTIONS, et al.,

                                                        Defendants,

ALTO DANIELS,
Correctional Officer,

                                                        Defendant-Appellee.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                 (July 26, 2013)

Before HULL, MARTIN and JORDAN, Circuit Judges.

PER CURIAM:
                 Case: 12-14237        Date Filed: 07/26/2013         Page: 2 of 5


       Walter Smith, a prisoner proceeding pro se, appeals the district court’s grant

of summary judgment to Correctional Officer Alto Daniels 1 on Smith’s Eighth

Amendment excessive force claim. 2 In his Amended Complaint, Smith alleged

that Officer Daniels “twist[ed] [his] arms upwards in the cuffs, while he pressed

[him] against the wall . . . . for some minutes” in an “unprovoked attack” away

from surveillance cameras. Smith further alleged that, as a result of the attack, he

suffered pain in “his shoulder and right hand with wrist injury as well; and minor

bruises to his eye and a swollen face.” The district court granted summary

judgment to Officer Daniels because “the amount of force at issue . . . was de
1
  Smith’s complaint also named as a defendant Walter A. McNeil, the former Secretary of the
Florida Department of Corrections. The district court dismissed McNeil from this action before
ruling on summary judgment. Smith does not challenge McNeil’s dismissal on appeal, so any
issues related to the district court’s dismissal of McNeil have been abandoned. Irwin v. Hawk,
40 F.3d 347, 347 n.1 (11th Cir. 1994).
2
  Smith has raised several other arguments in his brief that are not properly before this Court.
Although we liberally construe pro se pleadings, we nonetheless require pro se litigants to
“conform to procedural rules.” Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007)
(quotation marks omitted).
        First, Smith makes arguments regarding: (1) the denial of his requests to appoint counsel;
(2) the denial of his discovery motions; and (3) the release of his medical records. These issues
were raised below and, with the exception of one order addressing Smith’s request for a
temporary restraining order, were resolved by the Magistrate Judge. However, because Smith
“fail[ed] to timely challenge [the] magistrate’s nondispositive order[s] before the district court,
[he] waived his right to appeal those orders in this Court.” See Smith v. Sch. Bd. of Orange
Cnty., 487 F.3d 1361, 1365 (11th Cir. 2007).
        Second, Smith makes several arguments that were not raised in the district court. For
example, he argues that if his wrist injury actually occurred prior to the assault at issue here, then
the “physicians were deliberately indifferent to [his] serious medical needs.” “It is well
established in this circuit that, absent extraordinary circumstances, legal theories and arguments
not raised squarely before the district court cannot be broached for the first time on appeal.”
Bryant v. Jones, 575 F.3d 1281, 1308 (11th Cir. 2009).
        Third, Smith argues against Officer Daniels’s Motion to Tax Costs. Because the district
court deferred ruling on Daniels’s motion until after this appeal, there is not a final decision on
this issue for us to review. See 28 U.S.C. § 1291.
                                                  2
               Case: 12-14237     Date Filed: 07/26/2013    Page: 3 of 5


minimis” and “no reasonable jury could find in favor of [Smith].”

      “We review de novo the district court’s grant of summary judgment,

applying the same standard as the district court.” Burton v. Tampa Hous. Auth.,

271 F.3d 1274, 1276 (11th Cir. 2001). Summary judgment is appropriate if the

pleadings and other evidence demonstrates that “there is no genuine dispute as to

any material fact and the movant is entitled to a judgment as a matter of law” Fed.

R. Civ. P. 56(a). “The moving party bears the initial burden of showing . . . that

there are no genuine issues of material fact” and, if the moving party discharges its

burden, “the non-moving party must . . . go beyond the pleadings . . . [to] designate

specific facts showing that there is a genuine issue for trial.” Allen v. Bd. of Pub.

Educ. for Bibb Cnty., 495 F.3d 1306, 1313–14 (11th Cir. 2007) (quotation marks

omitted). All evidence is viewed, and all reasonable inferences are drawn, in the

light most favorable to the nonmoving party. Burton, 271 F.3d at 1277.

      When prison officials are accused of using excessive physical force “the

core judicial inquiry is . . . whether force was applied in a good-faith effort to

maintain or restore discipline, or maliciously and sadistically to cause harm.”

Hudson v. McMillian, 503 U.S. 1, 7, 112 S. Ct. 995, 999 (1992). However, not

“every malevolent touch by a prison guard gives rise to a federal cause of action.”

Id. at 9, 112 S. Ct. at 1000. “The Eighth Amendment’s prohibition of ‘cruel and

unusual’ punishments necessarily excludes from constitutional recognition de


                                           3
               Case: 12-14237     Date Filed: 07/26/2013     Page: 4 of 5


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, 112 S. Ct. at 1000

(quotation marks omitted). Thus, “[a]n inmate who complains of a ‘push or shove’

that causes no discernible injury almost certainly fails to state a valid excessive

force claim.” Wilkins v. Gaddy, 559 U.S. 34, ___, 130 S. Ct. 1175, 1178 (2010).

While a lack of serious injury is relevant to the inquiry, “[i]njury and force . . . are

only imperfectly correlated and it is the latter that ultimately counts.” Id.

      Taking Smith’s account as true, the attack was no more than a de minimis

use of force. First, there was a lack of serious injury. The district court properly

concluded that Smith’s only injury was minimal swelling around the left eye. It is

undisputed that Smith had “minimal swelling” when treated the day after the

incident. Smith alleges that he also suffered facial bruising and a fractured wrist as

a result of the incident. However, Officer Daniels has met his burden of showing

that there is no genuine dispute about the existence of these injuries (no such

injuries were caused by the incident), and Smith has not rebutted that showing by

designating specific facts beyond the pleadings. See Allen, 495 F.3d at 1313–14.

Notes from Smith’s medical examination after the incident stated that there was no

“discoloration” and did not reference wrist pain. Also, Smith’s medical records

show that he made inconsistent statements about when his wrist injury occurred.

Finally, while later examinations indicated that Smith had fractured his wrist at


                                            4
               Case: 12-14237     Date Filed: 07/26/2013   Page: 5 of 5


some point, the Director of Medical Services for the Florida Department of

Corrections explained that it was “highly unlikely, if not near impossible, that the

incident as alleged by Mr. Smith . . . led to” the type of fracture he suffered. Thus,

the record supports the finding that Smith suffered only the minor injury of facial

swelling as a result of the incident.

      Second, the type of force allegedly used by Officer Daniels (twisting

Smith’s arm and pressing him against the wall) was “not of a sort repugnant to the

conscience of mankind.” See Hudson, 503 U.S. at 10, 112 S. Ct. at 1000

(quotation marks omitted). Instead, it was similar to the “push or shove”

referenced in Wilkins, which “almost certainly fails to state a valid excessive force

claim.” Wilkins, 130 S. Ct. at 1178 (quotation marks omitted).

      Therefore, even taking Smith’s version of the events as true, any use of force

was de minimis and the district court did not err in concluding that no genuine

issue of material fact existed about whether Officer Daniels used excessive force in

violation of the Eighth Amendment.

      AFFIRMED.




                                          5
