                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                              JANUARY 7, 2010
                                 No. 08-15612                   JOHN P. LEY
                             Non-Argument Calendar             ACTING CLERK
                           ________________________

                      D. C. Docket No. 96-14176-CV-KAM

DAVID LEE BROWN,

                                                              Plaintiff-Appellant,

                                      versus

ACTING DIRECTOR OF METRO DADE
CORRECTIONAL, et al.,

                                                                     Defendants,

L. WESTON,
personally and In Their Official Capacity,

                                                             Defendant-Appellee.


                           ________________________

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

                                 (January 7, 2010)

Before BLACK, HULL and PRYOR, Circuit Judges.
PER CURIAM:

       Following a bench trial and a remand by this Court for further fact findings,

plaintiff David Lee Brown, proceeding pro se, appeals the district court’s judgment

in favor of defendant Leroy Weston on Brown’s 42 U.S.C. § 1983 excessive force

claim. After review, we affirm.

                                I. BACKGROUND

A.     First Bench Trial

       Brown’s excessive force claim arises out of an altercation that occurred

while he was housed as a pre-trial detainee at the Metro-Dade West Correctional

Facility. Brown was preparing to be transported to Broward County for a court

appearance when he got into an argument with corrections officer John Cowan

about bringing a change of clothes. Defendant Weston, the supervising corrections

officer on duty, responded to Cowan’s call for back-up. What happened next was

hotly disputed at trial.

       In a nutshell, Brown testified that Weston punched him in the mouth twice

without provocation, resulting in Brown losing one tooth and needing medical

treatment and a wire brace for two other loose teeth. Weston, on the other hand,

testified that Brown behaved aggressively and lunged at Cowan and Weston and

that in response Weston used a routine takedown procedure in which he pushed

                                          2
Brown against a wall, spun him around and handcuffed him.

       At the conclusion of the trial, the district court entered judgment in favor of

defendant Weston, finding that Weston was entitled to qualified immunity.1

However, the district court did not make explicit fact findings about the precise

nature of the altercation between Brown and Weston and the force Weston used.

C.     Appeal and Remand

       On appeal, this Court vacated and remanded the excessive force claim

against Weston for further proceedings. We explained that the district court’s

factual findings did not resolve the factual dispute as to: (1) “whether Plaintiff

Brown lunged or otherwise reasonably posed a danger to Defendant Weston as

Weston asserted”; (2) the type of force Weston used on Brown; and (3) whether the

type of force was consistent with the jail’s force policy. Accordingly, we

remanded for the district court to “make express fact findings about the specific

physical conduct, or lack thereof, of both Plaintiff Brown and Defendant Weston

and then should determine, applying the Whitley factors . . . , whether Defendant

Weston’s conduct violated Plaintiff Brown’s constitutional rights under the Eighth

and Fourteenth Amendments.” We further explained that the district court needed



       1
         Brown also sued Charles Felton, the Director of Metro-Dade Correctional Facility in his
official capacity for deliberate indifference to his medical needs and safety. The district court
found in favor of Defendant Felton, and this Court affirmed the judgment in the first appeal.

                                                3
to “find who did what and when and then should evaluate and decide whether

Defendant Weston’s use of force was applied in a good faith effort to maintain and

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

C.    Second Bench Trial

      On remand, the original trial judge recused himself, and the successor judge

held a hearing for the purpose of recalling witnesses to testify regarding the

disputed factual issues. The parties stipulated to the following: (1) Weston

observed a portion of the verbal altercation between Brown and Cowan and

responded when Cowan called for assistance; (2) Weston approached Brown and

ordered that he apologize for his behavior toward Cowan; (3) after the incident

between Brown and Weston, Weston took Brown to the infirmary, where he

received a saline solution to rinse his mouth; (4) Brown was placed in a holding

cell awaiting transfer to Broward County; (5) officers from Broward County

refused the transfer, and, upon complaining of pain, Brown was taken back to the

infirmary and transported to the hospital; (6) medical personnel determined that

two of Brown’s lower teeth were knocked out of their sockets and another knocked

loose; and (7) Weston was acting within the scope of his discretionary authority at

the time of the incident.

      At the hearing, Brown testified consistently with his original trial testimony



                                           4
that after he refused to apologize, Cowan hit him in the lower lip with his closed,

ringed fist, and that Brown never lunged or jumped at Weston. After Brown bent

over and looked back up, Weston hit him again with a closed fist, dislodging a

tooth. Weston again told Brown to apologize. Brown put the tooth in his pocket

and apologized to Cowan. Weston then took Brown to the infirmary. After Brown

was seen by the nurse, Weston told Brown he was sorry and escorted him to the

transport bus. Brown was not knocked to the ground by Weston’s blows, his lips

were not broken, and he bled only inside his mouth.

      Weston, on the other hand, testified that as he approached he had Brown and

Cowan move out of the cell and into the hallway. Brown was angry, would not

listen and kept moving around. Brown then lunged at Weston and Cowan, so

Weston applied a spin-around technique in which he pushed Brown away from

him, spinning him toward the wall, and then held him against the wall until he

could handcuff him. When Brown turned around, Weston noticed a small amount

of blood, so he took Brown to the infirmary.

      Weston denied punching Brown in the mouth, explaining that, under the

circumstances, he did not need to punch Brown and would not have been justified

in doing so. When Weston pushed Brown against the wall, his intent was to secure

Brown so he would not be a threat and the argument would not escalate.



                                          5
      Weston admitted that his report prepared immediately after the incident

stated that Brown took an aggressive stance and began cursing and threatening to

attack Cowan, but did not state that Brown lunged or jumped at either officer.

Weston explained that, because he managed to intervene and prevent the attack, he

did not list Brown’s actions as an attack.

      In addition, Dr. Jay Stein, an orthopedist, testified that, based on the

photographs, the witnesses’ statements, and the medical records, he believed that it

was more likely that Brown sustained his injuries by hitting a flat surface, like a

wall, than by a closed-fist punch to the face. In particular, Dr. Stein testified that a

closed-fist punch would have resulted in injuries to the person delivering the punch

and injuries to the soft tissues of Brown’s lips and face. On the other hand,

because a wall is an immobile, flat surface, the tissue in the mouth could be injured

without external injuries. On cross-examination, Dr. Stein admitted that he had not

examined Brown, Weston, or the site of the incident.

      Leonard McMullen, a supervisor in internal affairs at Metro-Dade

Correctional Facility, testified that the jail policy permitted an officer to use

whatever force was necessary to gain control of an inmate who lunges or jumps at

the officer. McMullen testified that, during the investigation, Brown gave a

statement that Weston punched him in the face when he refused to go apologize to



                                             6
Cowan, he fell to the floor, one tooth fell out, and Weston punched him again

while he was on his knees. According to McMullen, jail policy requires that an

officer submit an injury report if he is injured at the prison, and Weston did not file

an injury report after the incident with Brown.

       The defense recalled Brown, who testified that he refused medical treatment

to have the wire in his mouth removed, and he had not requested any dental

treatment since June 1995. The defense then read into the record portions of

testimony from the first bench trial, including (1) correctional officer Rafael

Pedrero’s testimony regarding his observation of the altercation between Weston

and Brown,2 (2) correctional officer Maria Escobar’s testimony regarding Brown’s

statement that he was hit,3 (3) Arthur Brown’s testimony assessing Brown’s




       2
        Officer Pedrero testified that he heard loud noises coming from the hallway outside
Brown’s cell and saw Brown cursing at Cowan. While guarding other inmates, Pedrero saw
Weston walk down the hallway in response. After sending other inmates downstairs, Pedrero
returned to see Weston with Brown, who was leaning up against the wall. Pedrero testified that:
(1) he heard Brown using racially derogatory remarks toward Cowan; (2) he observed Weston
attempting to calm Brown verbally, (3) Brown was acting aggressively before the incident; (4)
both Cowan and Weston appeared calm after the incident; (5) Brown apologized to Weston for
his behavior with Cowan; and (6) he did not see any injuries on Brown. On redirect
examination, Pedrero stated that his addendum to the incident report did not indicate that Brown
jumped or leapt at Weston, which he would have included had he observed such a thing.
       3
         Officer Escobar testified that, when she took Brown’s telephone complaint four months
after the incident, Brown did not mention Cowan or that he was punched twice and lost teeth, but
only that he was hit, pushed by and told to apologize to one of the officers.

                                                7
medical records and concluding that his injuries were inconsistent with a punch.4

       The district court entered judgment in favor of Defendant Weston. In its

order, the district court credited Weston’s testimony over Brown’s testimony and

found that Brown lunged at Weston and Cowan, leading Weston to push Brown

against the wall to subdue and handcuff him, which caused Brown’s injuries, as

follows:

              Defendant stopped Plaintiff before Plaintiff reached the
       elevators and told Plaintiff that he did not like the way Plaintiff treated
       Officer Cowan, and that Plaintiff owed Officer Cowan an apology.
       Plaintiff became enraged while listening to Officer Cowan explain to
       Defendant what had transpired. Plaintiff was out of control, he would
       not listen to reason and he would not stay still. Plaintiff then took an
       aggressive stance and lunged at Defendant and Officer Cowan. In an
       effort to control Plaintiff and protect himself and Officer Cowan from
       potential attack, Defendant spun Plaintiff around, turning Plaintiff’s
       shoulders and pushing his own weight against Plaintiff. Because
       Plaintiff was standing next to a wall, Defendant pushed Plaintiff
       against the wall in order to subdue and handcuff him. The push
       against the wall while Defendant was attempting to protect himself
       and Officer Cowan from a perceived attack is what caused the injury
       to Plaintiff’s mouth. The Court rejects Plaintiff’s testimony that
       Defendant punched him.

In a footnote, the district court explained that, while it found that Weston “was

credible and exuded professionalism,” Brown “was not credible and his testimony


       4
         Arthur Brown, a registered nurse and the Director of Patient Care Services at the jail,
testified that plaintiff Brown was sent to the hospital, diagnosed with a contusion and three
loosened teeth, but no fractures, lacerations or swelling, and released the same day. Brown
opined that these injuries were inconsistent with someone being punched twice with a large,
ringed hand.

                                                 8
regarding this incident provided no reasonable basis for finding that Defendant

punched him.” The district court noted that Brown’s injury was consistent with the

testimony of both Weston and Dr. Stein.

      Based on these facts, the district court concluded that Weston was entitled to

qualified immunity. The court found that Weston was acting within the scope of

his discretionary authority and that the force he used was to maintain order in the

jail. The district court explained (1) that the force was required to prevent an

attack after Weston reasonably perceived Brown taking an aggressive stance and

lunging and (2) that Weston’s decision to spin Brown around and push him against

the wall for handcuffing was a reasonable response to the perceived threat.

Accordingly, despite the significant, though accidental, injury that occurred, the

district court found that the amount of force Weston used was reasonable under the

circumstances to restore order and was not applied maliciously and sadistically for

the purpose of harming Brown. Brown appealed.

                                 II. DISCUSSION

      The Eighth Amendment’s prohibition against cruel and unusual punishment

governs a prisoner’s claim that a prison official used excessive force. Campbell v.

Sikes, 169 F.3d 1353, 1374 (11th Cir. 1999). Claims involving the mistreatment of

arrestees or pretrial detainees in custody are governed by the Fourteenth



                                           9
Amendment’s Due Process Clause, rather than the Eighth Amendment. Bozeman

v. Orum, 422 F.3d 1265, 1271 (11th Cir. 2005). Because the applicable standard is

the same, however, courts apply Eighth Amendment caselaw to cases involving

arrestees and pretrial detainees. Id. In the context of a measure taken to prevent a

security threat or to restore official control, the inquiry is whether “force was

applied in a good faith effort to maintain or restore discipline or maliciously and

sadistically for the very purpose of causing harm.” Whitely v. Albers, 475 U.S.

312, 320-21, 106 S. Ct. 1078, 1085 (1986) (quotation marks omitted).

      The Supreme Court has identified five factors, commonly called the Whitley

factors, to consider in determining whether force was used “maliciously and

sadistically” for the purpose of causing harm: (1) the extent of the 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, as reasonably

perceived by the responsible officials on the basis of facts known to them.

Campbell, 169 F.3d at 1375. From consideration of these factors, inferences may

be drawn as to “whether the use of force could plausibly have been 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.” Skrtich



                                           10
v. Thornton, 280 F.3d 1295, 1300 (11th Cir. 2002). Prison officials who are

“acting to preserve discipline and security,” including during a disturbance, are

given “a ‘wide range of deference.” Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th

Cir. 2007) (quoting Bennett v. Parker, 898 F.2d 1530, 1533 (11th Cir. 1990)).

Nevertheless, deference to prison officials is not absolute and does not insulate

from review actions taken in bad faith or for no legitimate purpose. Ort v. White,

813 F.2d 318, 322 (11th Cir. 1987).

      Under qualified immunity analysis, after the public official proves that he

was acting within the scope of his discretionary authority when the allegedly

wrongful acts occurred, the burden then shifts to the plaintiff to show that qualified

immunity is not appropriate. Courson v. McMillian, 939 F.2d 1479, 1487 (11th

Cir. 1991). Ordinarily, to defeat qualified immunity, a plaintiff must show that (1)

a constitutional violation occurred, and (2) the constitutional right violated was

clearly established. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156

(2001), abrogated in part by Pearson v. Callahan, 555 U.S. __, __, 129 S.Ct. 808,

818 (2009) (holding that district courts now have discretion as to the order in

which to address the two prongs).

      We review a district court’s bench trial findings of fact for clear error and its

conclusions of law de novo. O’Ferrell v. United States, 253 F.3d 1257, 1265 (11th



                                          11
Cir. 2001); see also Fed. R. Civ. P. 52(a) (providing that a district court’s findings

of fact in a non-jury trial “must not be set aside unless clearly erroneous, and the

reviewing court must give due regard to the trial court’s opportunity to judge the

witnesses’ credibility”). “For a finding to be clearly erroneous, the reviewing

court, looking at all the evidence, must be left with the definite and firm conviction

that a mistake has been committed.” Daley v. United States, 792 F.2d 1081, 1086

(11th Cir. 1986) (quotation marks omitted). We will not reverse “[i]f the district

court’s account of the evidence is plausible in light of the record viewed in its

entirety,” even if we, sitting as the trier of fact, would weigh the evidence

differently. Id. (quoting Anderson v. City of Bessemer, 470 U.S. 564, 573-74, 105

S. Ct. 1504, 1511 (1985)). Further, “when a trial judge’s finding is based on his

decision to credit the testimony of one of two or more witnesses, each of whom has

told a coherent and facially plausible story that is not contradicted by extrinsic

evidence, that finding, if not internally inconsistent, can virtually never be clear

error.” Anderson, 470 U.S. at 575, 105 S. Ct. at 1512; see also Stano v.

Butterworth, 51 F.3d 942, 944 (11th Cir. 1995) (explaining, based on Anderson,

that “we will give even ‘greater deference’ to factfindings of the district court that

are based on determinations of the credibility of witnesses”).

      Here, the district court found by a preponderance of the evidence that Brown



                                           12
became “enraged,” “would not listen to reason” and “would not stay still” after

Weston intervened and Officer Cowan tried to explain the situation to Weston.

When Brown “took an aggressive stance” and then lunged at the two officers,

Weston spun Brown around and pushed him against the wall, causing the injury to

Brown’s mouth. Weston used this maneuver to prevent Brown from attacking him

and Officer Cowan. Although Brown’s injury was significant, it was accidental.

       These findings are supported by substantial evidence, including the

testimony of Officers Weston and Pedrero and the medical opinions of Dr. Stein

and Nurse Brown. Brown’s argument that the district court’s verdict is not

supported by the evidence relies upon his version of events. However, the district

court explicitly discredited his testimony and credited Weston’s testimony as to

what transpired. Brown has not shown that Weston’s testimony was facially

implausible, internally inconsistent or contradicted by extrinsic evidence. Rather,

Weston’s testimony is contradicted only by Brown’s testimony. Given the great

deference we give to a district court’s credibility findings, the district court’s fact

findings are not clearly erroneous.5



       5
         We reject Brown’s argument that the district court exceeded the scope of this Court’s
mandate by making findings of fact as to what happened during the altercation. This Court
specifically concluded that the qualified immunity issue could not be resolved until the district
court in the first instance made specific fact findings regarding the sequence of events, i.e., “who
did what and when.”

                                                 13
      Further, given the established facts, the district court did not err in

concluding that Weston applied force in a good faith effort to maintain and restore

discipline and not maliciously and sadistically for the purpose of causing Brown

harm. In applying the Whitley factors, we agree with the district court that force

was needed to prevent an attack and maintain order in the jail. At the time, Brown

was unrestrained and standing in the hallway outside his cell. Weston reasonably

perceived Brown as a physical threat when he became “extremely agitated” and

lunged at the officers. Further, the amount of force Weston applied – spinning

Brown around and pushing him against the wall so that he could handcuff him –

was reasonable in light of Brown’s actions. Although Brown’s injury was not

insignificant, “this factor alone is not dispositive.” See Cockrell, 510 F.3d at 1311.

The injury was not inflicted maliciously, as evidenced by the fact that, as soon as

the altercation ended, Weston took Brown to the infirmary for medical attention

and even apologized to Brown. Furthermore, it does not appear the injury

reasonably could have been anticipated based on the amount of force applied.

Accordingly, no constitutional violation occurred, and Weston is entitled to

qualified immunity.

      AFFIRMED.




                                           14
