            Case: 13-11402   Date Filed: 08/27/2014   Page: 1 of 14


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 13-11402
                          Non-Argument Calendar
                        ________________________

                  D.C. Docket No. 4:11-cv-00432-RH-CAS



VICTOR DONTAVIOUS STALLWORTH,

                                                       Plaintiff-Appellant,

                                    versus

S. TYSON, Sergeant,

                                                       Defendant-Appellee.

                        ________________________

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

                              (August 27, 2014)

Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
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      Victor Dontavious Stallworth, a Florida prisoner, appeals pro se the district

court’s grant of summary judgment in favor of defendant Sgt. S. Tyson in a 42

U.S.C. § 1983 civil rights action alleging violations of the First, Eighth, and

Fourteenth Amendments. Stallworth also appeals the district court’s grant of

Tyson’s application to tax costs.

                                I.        BACKGROUND

      In his complaint, Stallworth alleged that in December 2010 he submitted a

grievance against Tyson, a prison correctional officer. In the early morning of

January 1, 2011, Tyson sprayed Stallworth with pepper spray through the feeding

flap on Stallworth’s cell door. Stallworth alleged that Tyson sprayed him in

retaliation for the filed grievance, thus violating Stallworth’s First Amendment

right to free speech. Stallworth also alleged that the use of pepper spray qualified

as unconstitutional cruel and unusual punishment. The district court granted

summary judgment in favor of Tyson as to both claims, after concluding that

Tyson used the pepper spray because Stallworth refused to surrender a razor blade

and was threatening to kill himself. After Stallworth filed a notice of appeal for

the summary judgment order, the court granted Tyson’s application to tax costs

and ordered Stallworth to pay Tyson $385.05.

                                    II.   DISCUSSION




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       Stallworth claims that the district court erred in granting summary judgment

as to both his retaliation claim under the First Amendment and his excessive-force

claim under the Eighth Amendment, because he sufficiently established that

genuine issues of material fact existed with regard to the reasons why Tyson used

pepper spray on him. 1 First, Stallworth argues that the prison surveillance footage

cannot definitively show that Stallworth had been threatening to kill himself with a

razor blade at the time that Tyson sprayed him, and the surveillance camera’s

partially-obscured view of the hallway in front of Stallworth’s cell makes it

impossible to know whether or not Tyson threw a razor into the cell through the

feeding flap. Stallworth also argues that he did not confess to owning a razor, and

that the court misinterpreted several of his statements that were recorded with a

hand-held video camera during his post-pepper spray shower.

       Second, Stallworth argues that his account of the pepper-spray incident—

that Tyson threw a razor blade into his cell and then sprayed him with pepper spray

in retaliation for filing grievances against him—makes more sense than the court’s

conclusion that he threatened to kill himself with a razor blade, given that prison

regulations barred him from owning a razor. Stallworth also asserts that the

court’s version of events would have been impossible, because Tyson could not


       1
         Stallworth raises several arguments on appeal but we will only address Stallworth’s
claim that his complaint should have been give the same weight as an affidavit and his
constitutional claims.
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have warned Stallworth to put down the razor blade, told his cellmate to cover

himself, opened the feeding flap, broken the seal of the pepper-can spray, and then

sprayed Stallworth, all within a matter of seconds.

      “We review the district court’s grant of summary judgment de novo,

considering all evidence in the light most favorable to the non-moving party.”

O’Bryant v. Finch, 637 F.3d 1207, 1212 n.9 (11th Cir. 2011) (per curiam).

Summary judgment is proper “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 party moving for summary judgment has the initial

burden of showing that there is no genuine issue of material fact. Josendis v. Wall

to Wall Residence Repairs, Inc., 662 F.3d 1292, 1314 (11th Cir. 2011). The

movant can meet his burden by presenting evidence indicating that there is no

dispute of material fact or by showing that the non-moving party has failed to

present evidence in support of some element of his case on which he bears the

ultimate burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24, 106 S.

Ct. 2548, 2552–53 (1986). The non-moving party must then go beyond his own

pleadings to “designate specific facts showing that there is a genuine issue for

trial.” Id. at 324, 106 S. Ct. at 2553 (internal quotation marks omitted).

      Before we address Stallworth’s constitutional claims, we briefly address his

argument that the district court should have given the factual statements in his


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complaint the same weight as an affidavit. We agree. The factual assertions that

Stallworth made in his amended complaint should have been given the same

weight as an affidavit, because he verified his complaint with an unsworn written

declaration, made under penalty of perjury, and his complaint meets Rule 56’s

requirements for affidavits and sworn declarations. See 28 U.S.C. § 1746; Barker

v. Norman, 651 F.2d 1107, 1114–15 (5th Cir. Unit A July 1981) (referring to the

affidavit requirements listed in Rule 56(c)(4)’s predecessor, Rule 56(e)).

      Therefore, in reviewing de novo the district court’s grant of summary

judgment, we consider whether the allegations of fact made in Stallworth’s verified

complaint raise genuine disputes of material fact. See Celotex, 477 U.S. at 323,

106 S. Ct. at 2552.

             A. First Amendment Retaliation Claim

      A prisoner may establish a First Amendment retaliation claim by showing

that prison officials retaliated against him for exercising his right to free speech.

O’Bryant, 637 F.3d at 1212. To prevail, the prisoner must establish that: “(1) his

speech was constitutionally protected; (2) [he] suffered adverse action such that the

[defendant’s] allegedly retaliatory conduct would likely deter a person of ordinary

firmness from engaging in such speech; and (3) there is a causal relationship

between the retaliatory action . . . and the protected speech.” Id. (internal quotation

marks omitted).


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      With respect to the first element, a prisoner’s filing of a grievance

concerning the conditions of his imprisonment is protected speech under the First

Amendment. Wildberger v. Bracknell, 869 F.2d 1467, 1468 (11th Cir. 1989) (per

curiam). The second element—whether the prisoner suffered an adverse action—

is an objective standard based on factual inquiry. Smith v. Mosley, 532 F.3d 1270,

1277 (11th Cir. 2008). To meet the third element, a prisoner bears the burden of

showing that his protected speech was a motivating factor behind the actions taken

by prison officials. O’Bryant, 637 F.3d at 1217. To establish causation, the

plaintiff must show that the defendant was “subjectively motivated to discipline”

the plaintiff for exercising his First Amendment rights. Mosley, 532 F.3d at 1278.

      Although we have yet to hold in a published opinion that a close temporal

proximity between protected speech and an adverse action may serve as

circumstantial evidence of causation in a prisoner’s First Amendment retaliation

claim, we have determined in another type of retaliation case that temporal

proximity is relevant to proving causation. See, e.g., Stanley v. City of Dalton,

219 F.3d 1280, 1282, 1291 & n.20 (11th Cir. 2000) (listing temporal proximity as

among the relevant factors for showing causation in an employment case involving

wrongful termination in violation of the First Amendment).

      Here, Stallworth is correct that the two-week gap between the filing of the

December 16, 2010, informal grievance and the pepper-spray incident constituted a


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close temporal proximity that weighs in favor of a causal relationship. See

O’Bryant, 637 F.3d at 1217. The causal connection is further strengthened by the

fact that Tyson had been interviewed about the grievance two days before the

pepper-spray incident.

      However, the district court granted summary judgment in favor of Tyson

after concluding that the record showed that Stallworth had threatened to hurt

himself with a razor, and thus Tyson would have used the pepper spray regardless

of whether Stallworth had filed any grievances. O’Bryant, 637 F.3d at 1217. The

question then turns to whether the district court correctly concluded that no

genuine issue of material fact existed that Tyson used the pepper spray, not in

response to the grievances filed against him, but because Stallworth possessed a

razor blade and posed a threat to himself and others.

      At the outset, Stallworth’s arguments on appeal that he could not have

possessed a razor blade because he was being housed in the Administrative

Confinement Unit and had a shaving pass need not be considered by this court,

because he did not introduce any evidence to support these contentions before the

district court. See Dominick v. Dixie Nat’l Life Ins. Co., 809 F.2d 1559, 1573 (11th

Cir. 1987) (refusing to consider any exhibits, attached to an appeal brief, that had

not been presented to the district court prior to the grant of summary judgment).




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        However, the district court did err in concluding that Stallworth had

completely failed to bring forth any evidence to refute Tyson’s justification for

using the pepper spray against Stallworth. Tyson supported his version of events

with a case summary from the Florida Department of Corrections, which stated

that Tyson observed Stallworth with a razor blade on January 1, 2011, and that

Stallworth threatened to kill himself. Stallworth, in response to the summary

judgment motion, cited to his amended verified complaint, in which he alleged that

Tyson threw the razor blade into his cell as retaliation for Stallworth filing a

grievance against Tyson. Therefore, in giving credit to Stallworth’s version of

events—that Tyson threw the razor blade into the cell—genuine issues of fact

remain as to whether Stallworth’s filed grievances motivated Tyson to spray him

with pepper spray, or whether Tyson in fact responded to Stallworth’s attempt to

hurt himself with a razor. See Josendis, 662 F.3d at 1314–15; Mosley, 532 F.3d at

1278.

        Moreover, the district court also erred in concluding that the prison

surveillance footage refuted Stallworth’s factual allegations. First, while the

surveillance video did confirm that Tyson was not holding his pepper spray when

he first walked toward Stallworth’s cell door, the footage did not clearly show the

actions that Tyson took once he arrived at the cell door. Tyson can be seen in the

footage standing in front of Stallworth’s cell door, shining his flashlight into the


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cell’s window with his left hand, and then reaching for something on his right side.

Although Tyson contends that he only reached for his pepper spray, the video does

not clearly show the contents of his hands, in particular whether he held a razor

blade. Also, given that Tyson had his back to the camera and a staircase partially

obscured the view, the footage does not reveal Tyson’s actions when he opened the

feeding flap, much less whether he threw in a razor or merely sprayed the pepper

spray. Second, given the cell’s distance from the camera, the small window on the

otherwise solid cell door, and the staircase obstructing the view, it is impossible to

tell from the surveillance video exactly what Stallworth was doing inside his cell,

including whether he was making threatening gestures with a razor blade. Third,

because the surveillance video did not include audio, there is no confirmation that

Tyson warned Stallworth to relinquish his razor blade, rather than, as Stallworth

contends, stating that the spraying was in retaliation for Stallworth’s filed

grievances.

      Finally, Stallworth argues that the district court misinterpreted two

statements about razor blades that he made during his post-pepper spray shower

and that were recorded on a hand-held video recorder. As an initial matter, the

district court only considered one of those statements in granting summary

judgment: “That’s my motherf------- razor, man, no cuts on me, man,” which the

court interpreted as an admission by Stallworth that he possessed a razor in his cell


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at the time of the pepper-spray incident. The content of the rest of the hand-held

video footage, however, makes it unclear whether Stallworth did in fact admit to

possession of the razor. See Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769,

1776 (2007). The rest of the footage showed Stallworth stating at least four

separate times that he had not possessed a razor, and that he had been “set up” by

Tyson. Thus, in light of the obscured view and the lack of audio on the

surveillance camera, as well as the contradictory statements recorded on the hand-

held video camera, neither piece of surveillance footage appears to be “obviously

contradictory” to Stallworth’s version of events, and the account of events

supported by Stallworth’s amended verified complaint should be credited when

deciding the issue of summary judgment. See Pourmoghani-Esfahani v. Gee, 625

F.3d 1313, 1315 (11th Cir. 2010) (per curiam) (“Credit[ing] Plaintiff’s version of

the record evidence where no obviously contradictory video evidence is

available.”).

                B. Eighth Amendment Excessive-Force Claim

      The Eighth Amendment to the U.S. Constitution “governs prison officials’

use of force against convicted inmates.” Campbell v. Sikes, 169 F.3d 1353, 1374

(11th Cir. 1999). Under the Eighth Amendment, force is deemed legitimate in a

custodial setting 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


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causing harm.” Whitley v. Albers, 475 U.S. 312, 320–21, 106 S. Ct. 1078, 1085

(1986) (internal quotation marks omitted).

      Factors relevant to ascertaining whether force was used “maliciously and

sadistically” for the purpose of causing harm include the following:

      (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, as reasonably
      perceived by the responsible officials on the basis of facts known to
      them.

Campbell, 169 F.3d at 1375 (internal quotation marks omitted). When 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.” Fennell v. Gilstrap, 559 F.3d 1212, 1217 (11th Cir. 2009)

(per curiam) (internal quotation marks omitted). A prisoner may avoid summary

judgment, “only if the evidence viewed in the light most favorable to him goes

beyond a mere dispute over the reasonableness of the force used and will support a

reliable inference of wantonness in the infliction of pain.” Brown v. Smith, 813

F.2d 1187, 1188 (11th Cir. 1987) (per curiam).

      The absence of serious injury does not necessarily preclude a claim under

the Eighth Amendment, yet the “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
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mankind.” Wilkins v. Gaddy, 559 U.S. 34, 37–38, 130 S. Ct. 1175, 1178 (2010)

(internal quotation marks omitted). Although the extent of injury is a relevant

factor in determining whether the use of force could plausibly have been thought

necessary under the circumstances and may be an indication of the amount of force

applied, it is not solely determinative of an Eighth Amendment claim. Id. at 38,

130 S. Ct. at 1178–79. Instead, the focus of the Eighth Amendment inquiry is on

the nature of the force applied, rather than the extent of injury inflicted. Id. at 39,

130 S. Ct. at 1179.

      Here, the district court granted Tyson’s motion for summary judgment on

the excessive-force claim for two reasons: (1) Stallworth “came forward with no

evidence to demonstrate any injury”; and (2) the evidence demonstrated that

necessary and non-excessive force had been used to prevent Stallworth from

harming himself with a razor blade. However, the court erred in reaching both

conclusions. First, as discussed above, genuine issues of fact exist as to whether

Stallworth actually threatened to harm himself with a razor blade in his cell.

Because the prison’s surveillance footage failed to blatantly contradict Stallworth’s

contention from his amended verified complaint that the blade had been thrown

into his cell, it remains for a jury to determine whether Stallworth in fact possessed

a razor within his cell and threatened to harm himself, and hence whether Tyson

needed to use force in the first place. See Pourmoghani-Esfahani, 625 F.3d at


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1315; Campbell, 169 F.3d at 1375 (determining whether the use of force was

malicious and sadistic based on the need for the application of force and the extent

of the threat to safety, among other factors). Had Tyson thrown a razor blade into

the cell, as Stallworth alleged, there would not have been a legitimate use for the

pepper spray, leading to the conclusion that the spraying was instead a malicious

and sadistic act. See Whitley, 475 U.S. at 320–21, 106 S. Ct. at 1085. Since this

factual dispute goes beyond the reasonableness of the pepper spray’s use, and

instead potentially supports an inference that the spraying had wantonly inflicted

pain, Stallworth successfully avoided summary judgment. See id.

      Second, the district court wrongly concluded that Stallworth failed to present

any evidence of injury. Rather, in responding to the motion for summary

judgment, Stallworth cited his amended verified complaint as evidence of his

injuries. In his complaint, he alleged that he suffered burns, permanent vision loss,

and psychological trauma. As to whether these injuries are de minimis, the alleged

permanence of his vision loss suggests a severe injury. Moreover, even if his

alleged injuries were not serious, this would not necessarily preclude a claim of

cruel and unusual punishment because, in viewing the evidence in the light most

favorable to Stallworth, Tyson’s use of the pepper spray after planting a razor in

Stallworth’s cell would be “repugnant to the conscience of mankind.” Id. at 327,




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106 S. Ct. at 1088 (internal quotation marks omitted); O’Bryant, 637 F.3d at 1212

n.9.

                                  CONCLUSION

       Accordingly, we vacate the order granting summary judgment and remand to

the district court for further proceedings consistent with this opinion.

Consequently, the cost judgment in favor of Tyson no longer is applicable, and we

dismiss as moot Stallworth’s appeal of the cost judgment.

       VACATED AND REMANDED in part; DISMISSED as moot in part.




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