           Case: 11-15992   Date Filed: 05/31/2013   Page: 1 of 6


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 11-15992
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 4:09-cv-00444-RH-WCS

TRAVIS MCKINNEY,

                                                     Plaintiff - Appellant,

                                   versus

SHERIFF,
JASON NEWLIN,
Deputy,

                                                      Defendants - Appellees,

SCOTT POWELLS, et al.,

                                                      Defendants.
                       ________________________

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

                              (May 31, 2013)


Before CARNES, BARKETT and BLACK, Circuit Judges.
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PER CURIAM:

       Travis McKinney, a prisoner proceeding pro se, appeals the district court’s

grant of summary judgment for former Wakulla County Sheriff David Harvey in

his 42 U.S.C. § 1983 action, as well as the denial of his request to file a third

amended complaint. McKinney alleged that the state circuit judge ordered him

gagged during a violation of probation hearing, and that Harvey observed but took

no action as the courtroom deputies gagged him with duct tape and a used

handkerchief.1 The district court concluded that Harvey’s observation of these acts

did not cross a constitutional threshold because the use of a gag is not per se

unconstitutional, and assuming all facts in the light most favorable to McKinney,

the deputies’ actions did not amount to excessive force. After review, we affirm

the district court.

Excessive Force

       McKinney first argues the district court erred in granting summary judgment

because he only needed to prove that his rights were violated to prevail.

McKinney contends the officers behaved maliciously and sadistically by removing

and reapplying duct tape to his mouth, and by using a dirty handkerchief.

1
  To the extent McKinney’s claim arose when he was a pre-trial detainee, his claim is grounded
in the Fourteenth Amendment. Bozeman v. Orum, 422 F.3d 1265, 1271 (11th Cir. 2005).
Notwithstanding, “[a] claim of excessive force under the Fourteenth Amendment is analyzed as
if it were an excessive-force claim under the Eighth Amendment.” Fennell v. Gilstrap, 559 F.3d
1212, 1216 n.5 (11th Cir. 2009).
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          We review the grant of summary judgment de novo. Rioux v. City of

Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir. 2008). “Summary judgment is

rendered if the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter of

law.” Id. (citing Fed. R. Civ. P. 56(c)). In making this assessment, we must view

all evidence and all factual inferences reasonably drawn from the evidence in the

light most favorable to the nonmoving party, and must resolve all reasonable

doubts about the facts in favor of the nonmovant. Id.

          To determine whether the deputies used excessive force in gagging

McKinney such that Harvey is liable under § 1983,2 our core 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, 112 S. Ct. 995,

999 (1992). In determining whether force was applied maliciously and

sadistically, we look to five factors: “(1) the extent of injury; (2) the need for

application of force; (3) the relationship between that need and the amount of force

used; (4) any efforts made to temper the severity of a forceful response; and (5) the

extent of the threat to the safety of staff and inmates . . .” Campbell v. Sikes, 169

2
    “If
     a police officer, whether supervisory or not, fails or refuses to intervene when a
constitutional violation . . . takes place in his presence, the officer is directly liable under
[§] 1983.” Ensley v. Soper, 142 F.3d 1402, 1407 (11th Cir. 1998).


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F.3d 1353, 1375 (11th Cir. 1999) (quotations omitted). However, “[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, 112

S. Ct. at 1000 (quotations omitted).

      The district court did not err in granting summary judgment in favor of

Harvey because no genuine issue of material fact existed as to whether

McKinney’s constitutional rights were violated. The order by a state court judge to

gag McKinney was not itself per se unconstitutional, because it was directed by the

judge to be done for the restoration of order in his courtroom. See Illinois v. Allen,

90 S. Ct. 1057, 1061 (1970) (stating that “bind[ing] and gag[ging a defendant],

thereby keeping him present” is one “constitutionally permissible way[] for a trial

judge to handle an obstreperous defendant”).

      Furthermore, evidence indicated that the duct tape and handkerchief were

not used maliciously or sadistically to cause harm, but rather, in a good faith effort

to maintain or restore discipline. Hudson, 112 S. Ct. at 999. Due to McKinney’s

persistent interruptions, the repeated removal of the duct tape, allowing him to

speak, and subsequent reapplication, permitting the judge to speak, was reasonably

related to the need for the application of the gag. Sikes, 169 F.3d at 1375. Any

force used in gagging McKinney was only increased relative to his continued


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refusal to remain quiet. Id. Moreover, the extent of the alleged injury—that

removal of the gag caused his hair to be pulled and his gums to bleed—was

minimal. Id. McKinney himself removed the gag more than once. Because the

evidence does not support an inference of malicious or sadistic application of

force, we affirm the district court’s grant of Harvey’s motion for summary

judgment.

Motion for Leave to Amend the Complaint

      McKinney next argues the district court erred in denying his request to

amend as futile, particularly because he alleged a civil rights violation. We review

the denial of a motion for leave to amend a complaint for an abuse of discretion.

Covenant Christian Ministries, Inc. v. City of Marietta, 654 F.3d 1231, 1239 (11th

Cir. 2011). Futility justifies the denial of leave to amend where the complaint, as

amended, would be subject to dismissal. Burger King Corp. v. Weaver, 169 F.3d

1310, 1320 (11th Cir. 1999).

      The district court did not abuse its discretion in denying McKinney’s motion

for leave to amend as futile because it permitted him to amend his complaint on

two prior occasions, and he only requested leave to amend a third time after

Harvey filed his motion for summary judgment. Furthermore, his proposed third

amended complaint named a party previously dismissed by the court and included

claims not properly brought under a civil rights action.


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AFFIRMED.




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