          Case: 11-11708   Date Filed: 11/19/2012   Page: 1 of 10

                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 11-11708
                        Non-Argument Calendar
                      ________________________

                 D. C. Docket No. 1:09-cv-00268-WS-M


LEE CURTIS TATE,
                                                           Plaintiff-Appellant,

                                 versus

OFFICER ROCKFORD,
OFFICER LANG,
LT. ENGLISH,
                                                        Defendants-Appellees.

                      ________________________

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

                           (November 19, 2012)



Before MARCUS, EDMONDSON and BLACK, Circuit Judges.
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PER CURIAM:



          Lee Curtis Tate, a state prisoner proceeding pro se, appeals the grant of

summary judgment in favor of defendants in his 42 U.S.C. § 1983 lawsuit.1 No

reversible error has been shown; we affirm.

          In his complaint, Tate raised an Eighth Amendment excessive force claim

against Correctional Officer Kerry Rothchild.2 According to Tate, on 9

September, 2008, he asked Rothchild for permission to retrieve his prison

identification card from the prison shift office. In response, Rothchild pushed

Tate; and after Tate turned to discard a radio that he was holding, Rothchild

punched Tate in the head, causing Tate to begin bleeding. Tate further alleged

that Rothchild beat him, threw him to the floor, and handcuffed him before taking

him to the shift office. Captain Shirley Smith arrived at the shift office,

interrupted Correctional Lieutenant Steven Lane (who was in the office) before


      1
      We review de novo the district court’s grant of summary judgment. Thomas v. Cooper
Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007). And we view the evidence in the light most
favorable to the non-moving party. Id.
  2
     Tate also alleged an Eighth Amendment claim against Correctional Lieutenant Steven Lane for
instigation and failure to intervene, and a Fourteenth Amendment due process violation against
Correctional Lieutenant James English. We conclude that Tate abandoned these claims because he
fails to argue on appeal that the district court erred in granting summary judgment on these claims.
See N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1217 n.4 (11th Cir. 2008)
(stating that “issues not raised on appeal are abandoned”).

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Lane could begin to beat Tate, and ordered Lane to leave the office after Lane

repeatedly threatened to kill Tate. Smith then ordered Rothchild and several other

officers to escort Tate to the infirmary.3

       Tate further alleged that Lieutenant Lane was waiting in the hallway on the

way to the infirmary and that, after Lane told the officers “y’all know what to do,”

Rothchild and the officers twisted Tate’s handcuffs, pushed him against the wall,

and beat him in the head with handcuffs -- causing Tate to bleed profusely. Upon

hearing the altercation, Captain Smith ran into the hallway and was knocked to the

ground by Rothchild and other unknown officers. After picking herself up from

the floor, Smith asked Lane whether he would help stop the beating; but Lane --

according to Tate -- only smiled in response. Smith eventually was able to stop

the beating by yelling repeatedly, and Tate was taken to the infirmary and then the

hospital.

       The district court determined that the record could not support a conclusion

that the officers used excessive force in subduing Tate either during the initial

confrontation in the prison dormitory or during the altercation in the hallway

outside the shift office. The court specifically noted that (1) Rothchild’s use of



  3
    Tate’s complaint incorrectly identified Kerry Rothchild as Officer Rockford and Steven Lane
as Lieutenant Lang.

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force was motivated by a good-faith effort to end Tate’s disruptive and violent

outburst, (2) Tate’s resulting injuries were de minimis, and (3) the prompt

administration of medical treatment tempered the severity of the officers’ forceful

response. The court stressed that Tate’s acts posed a danger to all of the officers

and inmates in the area, as well as to Tate himself. The court concluded that there

was no support in the record for Tate’s allegation that he was attacked without

justification by the officers.

      On appeal, Tate argues that the district court erred in granting summary

judgment because there were genuine issues of material fact about whether he or

Rothchild escalated the initial encounter in the dormitory. He maintains that the

evidence established that it was Rothchild who struck him and created a chaotic

and dangerous situation. He further states that he was handcuffed and not

resisting when Rothchild and the other officers assaulted him in the hallway.

      Summary judgment is appropriate when “there is no genuine dispute as to

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

Fed.R.Civ.P. 56(a). A district court must view the evidence and all reasonable

inferences therefrom, to the extent supported by the record, “in the light most

favorable to the nonmovant.” Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th

Cir. 2010).

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      The Eighth Amendment prohibits the infliction of cruel and unusual

punishment. U.S. Const. amend. VIII. 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). Tate failed

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

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

Eighth Amendment, force is deemed legitimate in a custodial setting only so 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.” Skrtich v.

Thornton, 280 F.3d 1295, 1300 (11th Cir. 2002) (citation omitted). Relevant to

ascertaining whether force was used “maliciously and sadistically” for the purpose

of causing harm are, at least, five factors: (1) the need for the application of force,

(2) the relationship between that need and the amount of force used, (3) the extent

of the prisoner’s injuries, (4) the threat reasonably perceived by the officials on the

basis of the facts known to them, and (5) efforts made to temper the severity of the

force. Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007). When

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considering these factors, we “give a wide range of deference to prison officials

acting to preserve discipline and security, including when considering decisions

made at the scene of a disturbance.” Id. (internal quotation marks, alterations, and

citation omitted). We strive to avoid judgments based on hindsight.

      Under the objective component, we 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 determined 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).

      Here, the district court did not err in concluding that no genuine issues of

material fact exist about whether defendants used excessive force in subduing Tate

during either of the incidents giving rise to the complaint. That Tate and

Rothchild were involved in a physical altercation in the prison dormitory while

Rothchild was the only prison official in an area filled with inmates is undisputed.

Tate does not dispute that Rothchild -- in advance of a struggle -- ordered Tate to

step away from the gate several times after Tate approached Rothchild about

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getting Tate’s identification card. After Rothchild attempted to push Tate away,

Tate admits that he pushed Rothchild’s hand away. A struggle between Rothchild

and Tate resulted: Rothchild’s uniform was ripped and bloodied, and Rothchild

lost his radio and security keys.

      Tate argues that an internal investigation conducted by the Alabama

Department of Corrections determined that Rothchild engaged in the unnecessary

escalation of violence. The report also noted that, instead of simply locking the

gate to avoid the physical confrontation, Rothchild entered the dormitory alone to

confront Tate, resulting in an altercation during which Rothchild did not use just

reasonable, necessary physical force. After an administrative hearing, Rothchild,

however, was later found not guilty of applying unnecessary force. See Fennell v.

Gilstrap, 559 F.3d 1212, 1217 (11th Cir. 2009) (highlighting that, the standard for

showing excessive force in violation of the Constitution is higher than that

required by a law enforcement department’s administrative policies). Rothchild

was found to have violated some prison policies and procedures.

      As the district court observed correctly, Tate’s threats, coupled with his

refusal to obey Rothchild’s commands to be quiet and move away from the gate

made use of force necessary, particularly because the altercation occurred in the




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presence of other inmates and Rothchild was the only officer in the area. See

Skrtich, 280 F.3d at 1300.

        On the later incident in the hallway, the evidence, viewed in the light most

favorable to Tate, shows these circumstances. Tate was placed in handcuffs while

being escorted to the healthcare unit.4 After an officer twisted his handcuffs, Tate

turned around; and an officer pushed Tate against the wall and several officers

beat him. Rothchild and another officer hit Tate with handcuffs.

        Tate argues that the district court did not consider the facts and draw all

reasonable inferences in the light most favorable to him. Furthermore, in her

declaration -- submitted by defendants -- Captain Smith described that, although

she continuously yelled for the officers (including Rothchild) to stop beating Tate

in the hallway, none of them complied immediately with her orders, even when

Tate ceased resisting. Our precedent, however, permits the use of force even when

a defendant is not physically resisting. We have concluded that when a prisoner

created a disturbance by failing to follow a prison guard’s instructions and

shouting obscenities, it was not unreasonable for the guard to grab the prisoner by

the throat and shove him against the prison bars. Bennett v. Parker, 898 F.2d



    4
      The district court concluded that Tate was not in handcuffs while being escorted to the
healthcare unit; Tate, however, alleged in his verified complaint that he was handcuffed.

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1530, 1533 (11th Cir. 1990). Indeed, we previously concluded that the use of

force sufficient to break bones did not violate the Eighth Amendment under the

circumstances even though the prisoner had not offered physical resistance. See

Cockrell, 510 F.3d at 1311. And the total record shows a complex set of

circumstances actually faced the officers.

      Tate does not dispute that the hallway was filled with other inmates and that

he had been yelling obscenities and threats against the officers. The officers knew

that Tate had been violent and disruptive and that he already had been involved in

a recent physical altercation with Rothchild in the prison dormitory. In the light of

Tate’s threats and recent prior violent behavior, when Tate turned around in the

hallway, the officers might have reasonably believed that force was necessary to

ensure his compliance. The officers likely also recognized that a struggle with

Tate could escalate to involve the other inmates in the hallway; and, therefore,

they acted with the force necessary to subdue Tate and maintain order and

discipline. See id. Force was justified.

      About the objective part of his excessive force claim, the evidence shows

Rothchild applied the amount of force necessary simply to restore order; it was not

excessive. The medical records bely Tate’s claim that his injury was not de

minimis: briefly stated, he had a laceration on his forehead, several small

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abrasions and cuts, and a swollen right eye. It is important that he suffered no

broken bones or additional injuries and that nothing evidences that he suffered

permanent injury or debilitating pain. See Boxer, 437 F.3d at 1111. Tate never

lost consciousness. By the way, some of the officers were also injured.

      In sum, the district court did not err in concluding that no genuine issue of

material fact existed on whether defendants used excessive force in violation of

the Eighth Amendment.

       AFFIRMED.




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