             Case: 18-13292     Date Filed: 08/25/2020   Page: 1 of 11



                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-13292
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 5:15-cv-00317-WTH-PRL

JOSE RIVERA,

                                                               Plaintiff-Appellant,

                                      versus

RUBEN LEBRON, et al.

                                                            Defendants-Appellees.

                          ________________________

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

                                (August 25, 2020)

Before JORDAN, NEWSOM, and BRASHER, Circuit Judges.

PER CURIAM:

      Jose Rivera, a federal prisoner, appeals the district court’s grant of summary

judgment to correctional officers Ruben LeBron, Todd Brasfield, and Adrian

Billings. Proceeding pro se, Rivera brought an Eighth Amendment excessive force
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claim against the officers. The district court, applying Scott v. Harris, 550 U.S. 372

(2007), rejected Rivera’s version of his confrontation with the officers and granted

the officers’ summary judgment motion. On appeal, Rivera argues that the court

misapplied Scott and, therefore, erred in not viewing the evidence in the light most

favorable to him as the nonmoving party. We agree and reverse.

                                          I.

      On March 3, 2012, Rivera attempted to dispose of contraband after a

“suspicious greeting” with a visitor during his incarceration at U.S. Penitentiary

Coleman I. This appeal concerns the events that followed. Because this case comes

to us on appeal of a grant of summary judgment, we view the evidence in the light

most favorable to Rivera and take the facts he alleged in his complaint and response

as true. See Sears v. Roberts, 922 F.3d 1199, 1203 (11th Cir. 2019).

      Upon observing Rivera’s suspicious interaction, LeBron and Billings escorted

Rivera out of the visitation area and into the inmate clothing room where Rivera

walked to the toilet and attempted to flush several items. LeBron responded by

triggering his body alarm, throwing Rivera to the ground, and, with the help of

Billings, placing Rivera in handcuffs. LeBron was able to recover one balloon that

Rivera was attempting to flush. While Rivera was lying face down on the ground in

handcuffs, LeBron punched Rivera repeatedly in the face and forcefully planted his

knee on Rivera’s back. With Rivera still handcuffed, Billings kicked and stomped


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Rivera’s side. Responding to the alarm, Brasfield entered the room and used his fist

and elbows to repeatedly strike Rivera in the head, back, and neck. An unidentified

fourth officer then joined and helped to place Rivera in leg restraints and carry him

out of the room “handcuffed and shackled like a pig about to be roasted.”

      The officers promptly escorted Rivera to the infirmary where medical staff

treated his visible contusions, swollen right eye, swollen areas around his neck and

back, and shoulder injuries. During the medical assessment, staff took pictures of his

injuries, which depict swelling covering his right eye, visible contusions and

bruising on his forehead and right side of his face, and bruising on the left side of

his back around his ribs. Staff also photographed Brasfield’s hand, showing injuries

to his knuckles.

      Within hours of the altercation, prison officials completed the investigation of

Rivera’s misconduct, obtained memoranda from the officers involved, and gave

Rivera a copy of an incident report that LeBron wrote. Rivera was read his rights

and said he had “no comment” about the incident but also stated “the staff were

abusive to me.” Testing of the recovered balloon showed that it contained tobacco,

and the discipline committee charged Rivera with (1) disposal of an item during a

search and (2) possession of non-hazardous contraband. The committee referred the

charges to the Discipline Hearing Officer who conducted a hearing on March 7,




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2012. The DHO determined that Rivera possessed non-hazardous contraband and

imposed sanctions but dismissed the charge of disposal of an item during a search.

      Rivera twice appealed the sanctions, both times stating that LeBron “severely

hurt him” while Billings looked on, resulting in extensive swelling to his eye and

ribs. He also argued that the officers exaggerated the amount of contraband he

flushed down the toilet in an attempt “to cover the beating.” In his second appeal, he

added that a third officer “bruised and scuffed his knuckles” while participating in

the assault.

                                         II.

      Rivera filed pro se a civil rights complaint on June 26, 2015. He alleged that

LeBron, Brasfield, Billings, and an unidentified fourth guard used excessive force

against him, violating his Fourth, Eighth, and Fourteenth Amendment rights. He also

brought claims against the United States of America and the warden at USP-I. Rivera

later supplemented the complaint with several medical records in support of his

allegation that the officers caused him serious, chronic injuries. Those records

included a radiology report of his shoulder dated May 11, 2012, noting trauma and

pain at the right shoulder and lumbar spine with abnormal findings and a separated

shoulder; a radiology report of his c-spine dated September 18, 2013, noting

posterior chronic neck pain and right side pain with abnormal findings and mild

degenerative disc disease and degenerative joint disease; a MRI report of his lumbar


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spine for chronic lower back pain dated September 20, 2013, noting a central and

left paracentral disc bulge at L4-L5 causing foraminal narrowing with possible

contact with the left L5 nerve root; neurosurgical clinic reports dated June 16, 2014,

noting multilevel discogenic degenerative change in his lower back and a disc bulge

at L4-L5 and L5-S1; a hospital record dated October 14, 2014, noting that he

received an epidural injection for severe pain, recorded as a ten out of ten, in his

back and left leg from an internal disc disruption at both L5-S1 and L4-L5; and a

hospital record dated October 28, 2014, noting that he received a second epidural

injection in his left L4-L5 for pain in his back and left leg.

      The district court dismissed the warden, unidentified guard, and United States.

The remaining defendants then answered the complaint, denying any use of

excessive force and claiming qualified immunity. They then filed a motion to

dismiss, or alternatively, motion for summary judgment, attaching sworn

memoranda and affidavits from the officers, an incident report, disciplinary hearing

reports, Rivera’s administrative remedy appeals, and a BOP health services clinical

encounter report dated March 3, 2012. The officers’ affidavits and other BOP

materials state that force was used to subdue Rivera and prevent him from disposing

of contraband. The health services report describes Rivera’s injuries as minor. The

district court granted summary judgment.




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      In its summary judgment order, the district court stated that “Rivera’s claims

in the Complaint are not consistent with his previous, evolving statements” and

decided, therefore, that his version of the facts was “not credible,” “neither plausible

nor supported by the evidence or his prior statements,” and “no reasonable jury could

believe it.” Relying on this Court’s application of Scott in Morton v. Kirkwood, 707

F.3d 1276 (11th Cir. 2013), the district court disregarded Rivera’s factual

contentions as “blatantly contradicted by the record” and held that there was no

genuine dispute of material fact regarding whether the officers were entitled to

qualified immunity. It based that holding solely on the memoranda, affidavits,

inmate investigative report, and clinical encounter report that the officers submitted

with their motion for summary judgment and failed to address any of the medical

records that Rivera provided. Accordingly, the district court granted summary

judgment to all defendants. We now address Rivera’s appeal of that order.

                                          III.

      We review the district court’s grant of summary judgment de novo and view

the evidence in the light most favorable to Rivera as the nonmoving party. See Sears

v. Roberts, 922 F.3d 1199, 1205 (11th Cir. 2019) (citation omitted). Summary

judgment is appropriate “if the movant shows that 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 fact is “material” “if it is a legal element of the claim under the


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applicable substantive law which might affect the outcome of the case.” Allen v.

Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (citations omitted). A dispute

is “genuine” if “the record taken as a whole could lead a rational trier of fact to find

for the nonmoving party.” Id. (quotations omitted) (citation omitted).

                                          IV.

      Rivera’s claim that the officers’ use of force violated the Eighth Amendment

turns on “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 (1992). To determine whether an officer’s use of force was legitimate, we

consider (1) “the need for the application of force;” (2) “the relationship between the

need and the amount of force that was used;” (3) “the extent of the injury inflicted

upon the prisoner;” (4) “the extent of the threat to the safety of staff and inmates, as

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

them;” and (5) “any efforts made to temper the severity of a forceful response.”

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

      Rivera contends that the district court erred by disregarding his factual

contentions about these matters when granting summary judgment to the officers.

Specifically, he argues that the district court overlooked evidence that (1) the officers

continued to use force on Rivera after he was subdued and (2) his injuries were




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inconsistent with the officers’ testimony about the extent of force they used. We

agree on both counts.

      First, the district court should not have discredited Rivera’s account of the

confrontation as “blatantly contradicted” by the record. The officers relied on several

exhibits to support their position that they used force on Rivera only to subdue him

and prevent him from destroying contraband, including their own memoranda and

affidavits, an inmate investigative report, and a BOP health services clinical

encounter report describing Rivera’s injuries. In response, Rivera relied on his

verified complaint and supplemented medical records to support his position that the

officers continued to use force on him after he was handcuffed and on the ground.

      The district court reasoned that Rivera’s account could be ignored under Scott

v. Harris, 550 U.S. 372 (2007), because it was “blatantly contradicted” by the prison

records and the officers’ testimony. In Scott, the Supreme Court held that a

nonmovant’s testimony need not be credited when it is “blatantly contradicted” by

video evidence that “so utterly discredit[s]” the nonmovant’s version of events “that

no reasonable jury could have believed him.” 550 U.S. at 380. In an excessive force

case very similar to this one, however, we have clarified that the “blatantly

contradicted” exception from Scott does not apply to the type of evidence the officers

provided in support of their motion for summary judgment. Sears v. Roberts, 922

F.3d 1199, 1208–09 (11th Cir. 2019). Specifically, we held that the “blatantly


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contradicted by the record” exception does not apply to evidence that “consists

mainly of various forms of [the officers’] own testimony.” Id. Rather, evidence that

merely “pit[s] the correctional officers’ word against” an inmate’s is distinct from

the type of videotape evidence in Scott that “definitively established what happened

and what did not.” Id. Accord Morton v. Kirkwood, 707 F.3d 1276, 1284 (11th Cir.

2013); Witt v. W. Va. State Police, Troop 2, 633 F.3d 272, 276 (4th Cir. 2011);

United States v. Hughes, 606 F.3d 311, 319–20 (6th Cir. 2010); Blaylock v. City of

Phila., 504 F.3d 405, 414 (3d Cir. 2007).

      The officers argue that the district court properly disregarded Rivera’s

statements in his verified complaint “because his factual allegations in the complaint

regarding the purported assault were inconsistent with his earlier assertions.” As a

general rule, that kind of credibility determination is not appropriate at the summary

judgment stage. See Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253 (11th

Cir. 2013) (reversing the grant of summary judgment based on plaintiff’s “self-

serving” but “non-conclusory descriptions of specific, discrete facts . . . based on her

first-hand personal knowledge”).

      Nonetheless, even assuming a court could, in an unusual circumstance,

disregard a witness’s testimony at summary judgment because of the witness’s

previous inconsistent statements in other contexts, the alleged inconsistencies in

Rivera’s current and previous statements do not rise to such a level. Rivera provided


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sworn testimony through his verified complaint that describes LeBron throwing him

to the ground and placing him in handcuffs before the officers began punching,

kicking, and stomping on his head, neck, side, and back. Although it is true that

Rivera provided more detail in his complaint than in the initial incident report or in

his administrative appeals, he has consistently maintained that the officers were

abusive. And even though he did not mention a third officer being involved in his

earliest accounts, he never stated that LeBron and Billings were the only officers

involved. Further, his earlier accounts do not mention when he was handcuffed in

relation to the use of force; accordingly, they do not clearly contradict his current

account that he was handcuffed and lying face down on the ground when the beating

occurred. A finder of fact may view Rivera’s testimony as not credible, but a court

at summary judgment cannot.

      Second, the district court did not consider Rivera’s extensive medical records

in the light most favorable to Rivera. The court concluded that it was undisputed that

Rivera’s injuries were minor because of the prison’s clinical assessment report. But

the district court did not address any of Rivera’s supplemented medical records

evidencing long-term injuries and chronic pain. For their part, the officers’ brief does

not respond to Rivera’s arguments about this medical evidence.

      Consistent with his account that the officers repeatedly punched him in the

face, stomped on his rib cage, and struck his head, neck, and back, the clinical


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assessment report includes photographs showing substantial swelling and bruising

to Rivera’s right eye, multiple contusions and visible bruising on his forehead and

right side of his face, and bruising on the left rib area of his back. The report also

notes that Rivera had multiple fractured teeth when examined immediately after the

encounter. Further, Rivera’s supplemented medical records describe chronic back

and neck pain due to disc bulges and a separated right shoulder with torn ligaments.

His hospital records reflect Rivera’s continued need for medical treatment for

injuries allegedly sustained during the beating, including two epidural injections for

severe pain from an internal disk disruption in his lower back. Taking all reasonable

inferences in Rivera’s favor, this medical evidence creates a genuine dispute as to

the amount of force used and the severity of Rivera’s injuries.

                                         V.

      Rivera presented sufficient evidence to create a genuine dispute of material

fact regarding the need for the use of force, the amount of force used, and the extent

of his injuries. Accordingly, we REVERSE the district court’s grant of summary

judgment and REMAND for further proceedings.




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