                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              October 31, 2006
                             No. 06-12422                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                  D. C. Docket No. 05-00196-CV-WS-M

DAVID LEE JOHNSON,


                                                           Plaintiff-Appellant,

                                  versus

ISAAC MOODY,
OFFICER DUNSFORD,


                                                        Defendants-Appellees.


                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                      _________________________

                            (October 31, 2006)

Before ANDERSON, BIRCH and FAY, Circuit Judges.

PER CURIAM:
      David Lee Johnson, an Alabama state prisoner, appeals pro se the district

court’s grant of summary judgment in favor of the defendants, Officers Isaac

Moody and Eddie Dunsford, in his civil rights action alleging excessive force in

violation of the Eighth Amendment, filed pursuant to 42 U.S.C. § 1983. In his

complaint, Johnson alleged that Officer Moody, a correctional officer at the

Holman Correctional Facility where Johnson was incarcerated, intentionally kicked

a metal tray door on Johnson’s hand in an attempt to break Johnson’s finger,

resulting in injury. According to Johnson’s affidavit, the incident occurred after

Johnson refused to take a cold breakfast tray that Moody wanted to give him.

Johnson further alleged that Officer Dunsford was present when the incident

occurred, but he did not try to stop Moody, and Dunsford laughed after the

incident. Johnson submitted affidavits from several inmates that corroborated his

account of the incident.

      In response, the defendants submitted affidavits and medical records from

Prison Health Services. According to Moody’s affidavit, Moody pushed the tray

door closed after Johnson had removed his arm from the door, and the incident was

an accident. Moody claimed that Johnson had refused to remove his arm from the

tray door, and Moody was concerned that Johnson would throw something out of

it. The defendants submitted a copy of the emergency medical report from Prison



                                          2
Health Services, which stated that Johnson sustained a cut to his right middle

finger for which he was given Motrin, a bandage, and a tetanus shot. The

defendants also submitted copies of sick call requests that Johnson made over a

period of six months, in which he complained of pain in his right middle finger for

which he was treated with non-prescription pain medication and bandages. The X-

rays of his finger revealed that it was not fractured.

      The magistrate judge issued a report and recommendation (“R & R”),

recommending the granting of the defendants’ motion for summary judgment. The

magistrate noted that, in order to establish an Eighth Amendment violation, the

plaintiff must show an objective and subjective component. The magistrate found

that Johnson did not establish the subjective component because he did not show

that Moody acted maliciously or sadistically to cause harm. In addition, the

magistrate found that Johnson did not establish the objective component because

Johnson’s injury was de minimus and not objectively harmful enough to establish a

constitutional violation. Johnson filed objections to the R & R, arguing that he

satisfied the objective and subjective components because Moody intentionally

shut the tray door on his hand, and Johnson was treated for his injury for six

months. The district court adopted and affirmed the magistrate’s R & R and

granted the defendants’ motion for summary judgment.



                                           3
       On appeal, Johnson argues that the district court erred in granting the

defendants’ motion for summary judgment because the injury he sustained to his

finger was not de minimus, as he received treatment for more than six months.

Second, Moody’s statements about the amount of force used were inconsistent

because, in the Institutional Institute Report, Moody stated that he “kicked” the

tray door, but in his affidavit, Moody stated that he “pushed” the tray door. Third,

Moody provided inconsistent accounts of the incident because, in his affidavit,

Moody stated that he wanted to shut the tray door because he thought that Johnson

would throw something at the correctional officers. However, in the Institutional

Institute Report, Moody did not mention his concern that Johnson would throw

something and claimed that it was an accident.1

       We review de novo a district court’s grant of summary judgment. Mercado

v. City of Orlando, 407 F.3d 1152, 1156 (11th Cir. 2005). Summary judgment is

appropriate when “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



       1
         Johnson attached two affidavits to his brief, which primarily reassert his previous
allegations. However, we do not consider the affidavits because they were never before the district
court. See Smith v. United States, 343 F.2d 539, 541 (5th Cir. 1965) (declining to consider
affidavits offered for the first time on appeal, and holding that Court of Appeals cannot “go behind
the record” in reviewing a case).

                                                 4
judgment as a matter of law.” Id. (quoting Fed.R.Civ.P. 56(c). When making this

determination, we view all facts in the light most favorable to Johnson, the non-

moving party. Id.

      The Eighth Amendment prohibits the infliction of cruel and unusual

punishment. U.S. Const. amend. VIII. The Eight Amendment’s proscription of

cruel and unusual punishment governs prison officials’ use of force against

convicted inmates. Campbell v. Sikes, 169 F.3d 1353, 1374 (11th Cir. 1999). In

considering an Eighth Amendment excessive force claim, we must consider both a

subjective and objective component: (1) whether the “officials act[ed] with a

sufficiently culpable state of mind,” and (2) “if the alleged wrongdoing was

objectively harmful enough to establish a constitutional violation.” Hudson v.

McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 999, 117 L.Ed.2d 156 (1992) (internal

quotations omitted). For the reasons set forth more fully below, Johnson has failed

to establish the subjective and objective components of an excessive force claim.

                                 A. Subjective Prong

      Under the subjective prong of our analysis of excessive force claims under

the Eighth Amendment, force is deemed legitimate in a custodial setting only as

long as it is applied “in a good faith effort to maintain or restore discipline [and

not] maliciously and sadistically for the very purpose of causing harm.” Hudson,



                                            5
503 U.S. at 6, 112 S.Ct. at 998. “Moreover, an officer who is present at the scene

and who fails to take reasonable steps to protect the victim of another officer’s use

of excessive force can be held personally liable for his nonfeasance.” Skrtich v.

Thornton, 280 F.3d 1295, 1301 (11th Cir. 2002).

      Five factors relevant to ascertaining whether force was used “maliciously

and sadistically” for the purpose of causing harm include (1) the extent of the

injury, (2) the need for application of force, (3) the relationship between the 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,

as reasonably perceived by the responsible officials on the basis of facts known to

them. Campbell, 169 F.3d at 1375.

      Applying the Campbell factors, we held in Skrtich that the officers’ use of

an electronic shield to shock and incapacitate the prisoner, after the prisoner

refused to be handcuffed during a search of his cell, and the officers’ subsequent

punching, kicking, and beating the prisoner to the extent he had to be airlifted from

the prison to a hospital where he remained for nine days, constituted an Eighth

Amendment violation. Id. at 1299-1300. Conceding that some degree of force was

lawful in light of the prisoner’s non-compliance with the officers’ order to submit

to handcuffing, the prisoner challenged as excessive the assault that occurred after



                                           6
he had been incapacitated by the shock of the electronic shield. Id. at 1301-02.

We held that, although the officer may have been justified in taking extra

precautions in performing the cell extraction because of the prisoner’s status as a

“disciplinary problem,” the officers acted maliciously and sadistically when they

beat the prisoner after he had been shocked with the shield. Id. at 1302. Similarly,

in Bozeman v. Orum, 422 F.3d 1265, 1271-72 (11th Cir. 2005), we held that the

correctional officers acted maliciously and sadistically because, once the officers

had subdued Haggard, they held him face-down, forced Haggard’s head into a

mattress, and stated, “Oh, we don’t think you’ve had enough,” until Haggard was

unconscious. Further, even though Haggard was clearly unconscious, the officers

waited 14 minutes to call for medical assistance. Id. at 1273.

      In the instant case, the district court did not err in finding that there was no

genuine issue of material fact that Moody did not use force “maliciously and

sadistically” for the very purpose of causing harm. Viewing the facts in the light

most favorable to Johnson, Moody did not act maliciously or sadistically for

several reasons. First, the extent of the injury shows that the force was not used

maliciously and sadistically. See Campbell, 169 F.3d at 1375. Johnson sustained

only a superficial injury to his finger and fingernail, for which he was treated for

only 15 minutes on the day of the injury. The medical records reflect that



                                           7
Johnson’s treatment included bandages, non-prescription pain medication, and a

tetanus shot. Although Johnson complained of pain for several months, the

objective medical evidence does not support his subjective complaints because his

finger was not fractured, he was able to bend it, there was no infection, and he only

received non-prescription pain medication.

      Second, the fact that Moody immediately reported the incident to Hicks, and

the officers escorted Johnson to the Health Services Unit less than 20 minutes after

the incident for treatment, shows that Moody’s conduct was not malicious or

sadistic because, unlike in Bozeman, the officers ensured that Johnson received

prompt emergency treatment for his relatively minor injury. Third, unlike in

Bozeman, Johnson does not claim that Moody, in applying force, used language

that was threatening or abusive. See Bozeman, 422 F.3d at 1271 n.11 (explaining

that, although words, alone, are not determinative of bad faith on the part of

officers in their use of force, “threatening language as part of the totality of the

circumstances can be relevant to what is constitutionally reasonable,” or in the

determination of reasonable inferences about the officers’ subjective state of

mind).

      Fourth, unlike the prisoner in Skrtich, Johnson was not stunned or beaten

during the incident, and he did not need treatment at an off-site hospital. See



                                            8
Skrtich, 280 F.3d at 1302. Unlike the prisoner in Skrtich who was hospitalized for

nine days, Johnson was only treated for 15 minutes on the day of his injury.

Moreover, unlike in Bozeman, Moody did not repeatedly seek to harm Johnson or

render him unconscious. See Bozeman, 422 F.3d at 1271-72. Moody’s kicking of

the tray door with his foot was a single incident resulting in a minor injury. Thus,

although Moody arguably could have waited to see whether Johnson would

remove his hand from the tray door completely, Johnson failed to produce

evidence showing that this action was taken “maliciously and sadistically for the

very purpose of causing harm.” See also Hudson, 503 U.S. at 6, 112 S.Ct. at 998;

see also Campbell, 169 F.3d at 1374 (explaining that “force does not violate the

Eighth Amendment merely because it is unreasonable or unnecessary”).

Furthermore, to the extent that Dunsford was present during the alleged use of

force and failed to intervene, no constitutional violation occurred because Moody

did not use excessive force. See Skrtich, 280 F.3d at 1301. The district court,

therefore, did not err in concluding that no genuine issue of material fact existed as

to whether the defendants used excessive force in violation of the Eighth

Amendment.




                                           9
                                 B. Objective Prong

        We next consider whether the alleged wrongdoing was “objectively harmful

enough to establish a constitutional violation.” Hudson, 503 U.S. at 8, 112 S.Ct. at

999. Eighth Amendment claims based on de minimis uses of physical force by

prison guards are not cognizable unless they involve “force that is repugnant to the

conscience of mankind.” Id. at 9-10, 112 S.Ct. at 1000. We have held that “an

injury can be ‘objectively, sufficiently serious’ [to constitute a constitutional

violation] only if there is more than de minimus injury.” Boxer v. Harris, 437 F.3d

1107, 1111 (11th Cir. 2006).

        In Hudson, the Supreme Court held that Hudson’s injuries, which included

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

for Eighth Amendment purposes. Hudson, 503 U.S. at 10, 112 S.Ct. at 1000.

Similarly, in Skrtich, we held that the kinds of injuries the prisoner suffered,

including rib fractures, back injuries, lacerations to the scalp, and abdominal

injuries that required nine days of hospitalization and months of rehabilitation,

could not have been the result of a de minimus use of force. Skrtich, 280 F.3d at

1302.

        In Harris v. Chapman, 97 F.3d 499, 505-506 (11th Cir. 1996), the defendant,

an officer at a correctional facility, moved for judgment as a matter of law after a



                                           10
jury verdict in the prisoner’s favor as to his excessive force claim. The district

court granted the defendant’s motion, and we reversed, noting that it was a “very

close case.” Id. at 506. The facts at trial revealed that officers, including the

defendant, kicked and beat Harris, and the defendant snapped Harris’s head back

with a towel, slapped him twice in the face, and harassed him with racial epithets.

Id. at 505-06. We held that Harris’s injuries were more than de minimus because

the defendant’s actions caused or exacerbated Harris’s back condition. Id. at 506.

      Here, unlike in Skrtich and Harris, the minor nature of Johnson’s injury

suggests that the force applied was de minimus. Although Johnson argues that his

injuries were not de minimus because he was treated for more than five months,

the fact that Johnson made sick call requests does not mean that his subjective

complaints of pain were accurate or that his injury was serious. The medical

records bely his claim that his injury was not de minimus because he was given a

tetanus shot, and he was subsequently treated with bandages and non-prescription

pain relievers. Johnson’s finger was not broken or fractured, and there is no

evidence that he suffered any permanent injury or debilitating pain.

      Johnson argues that there is a genuine issue of material fact as to the degree

of force Moody used because Moody stated in his affidavit that he “pushed” the

tray door, but, in the “Institutional Institute Report,” Moody stated that he “kicked”



                                           11
the tray door. Whether Moody pushed or kicked the tray door is not determinative

because, as discussed above, Johnson’s injury was de minimus.

      Finally, Johnson argues that there is a genuine issue of material fact

regarding Moody’s credibility because Moody first stated that he pushed the door

with his foot and later stated that he kicked it. Even if these statements create an

issue of fact about Moody’s credibility, Moody’s credibility is not a material issue

because we assume for purposes of summary judgment that Johnson’s version of

the incident is true. See Mercado, 407 F.3d at 1156.

      From the evidence in the record, a rational jury could draw two possible

conclusions: (1) that the incident was an accident, or (2) that Moody deliberately

and perhaps unnecessarily applied a relatively minor amount of force in response

to Johnson’s failure to follow a direct order. Neither scenario would involve a use

of force that is “repugnant to the conscience of mankind.” See Hudson, 503 U.S.

at 9-10, 112 S.Ct. at 1000. Accordingly, there is no genuine issue of material fact

that Johnson’s injury was not “objectively, sufficiently serious” to constitute a

constitutional violation. See Boxer, 437 F.3d at 1111. Accordingly, we affirm the

district court’s decision granting summary judgment to the defendants on

Johnson’s excessive force claim.

      AFFIRMED.



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