                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                                No. 09-11556                ELEVENTH CIRCUIT
                                                                APRIL 19, 2010
                            Non-Argument Calendar
                                                                 JOHN LEY
                          ________________________
                                                                  CLERK

                   D. C. Docket No. 07-00606-CV-T-23-MSS

WARREN DARREL SMITH,

                                                               Plaintiff-Counter-
                                                             Defendant-Appellee,

                                     versus

P. VAVOULIS,
Deputy/Correctional Officer,
B. BORS,
Deputy/Correctional Officer,

                                                            Defendants-Counter-
                                                           Claimants-Appellants,
BOB WHITE, Sheriff,

                                                    Defendant-Counter-Claimant.


                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________
                                (April 19, 2010)
Before EDMONDSON, BIRCH and ANDERSON, Circuit Judges.

PER CURIAM:

      Defendants Peter Vavoulis and Benjamin Bors bring this interlocutory

appeal from the district court’s order denying their motion for summary judgment

on the basis of qualified immunity in Warren Smith’s 42 U.S.C. § 1983 action

against them. In the case at hand, Smith alleges that Vavoulis and Bors used

excessive force against him, in violation of the rights secured to him as a pretrial

detainee under the Fourteenth Amendment. Vavoulis and Bors contend that the

district court erred in denying their claim of qualified immunity because the district

court failed to consider the extent of Smith’s alleged injuries. They argue that

Smith’s alleged injuries were de minimis; therefore, Smith cannot prevail on his

claim of excessive force and summary judgment should be granted on the basis of

qualified immunity.

      “We review the denial of summary judgment on qualified immunity grounds

de novo.” Reams v. Irvin, 561 F.3d 1258, 1262-63 (11th Cir. 2009) (quotation

marks omitted). At the summary judgment stage, all issues of material fact are

resolved in favor of the plaintiff, and then, under that version of the facts, the legal

question of whether the defendant is entitled to qualified immunity is determined.

Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003). “[I]f the evidence at the



                                            2
summary judgment stage, viewed in the light most favorable to the plaintiff, shows

there are facts that are inconsistent with qualified immunity being granted, the case

and the qualified immunity issue along with it will proceed to trial.” Johnson v.

Breeden, 280 F.3d 1308, 1317 (11th Cir. 2002).

       In ruling on the qualified immunity issue, we engage in a two-step analysis:

(1) whether the facts alleged, viewed in the light most favorable to the party

asserting the injury, show that the official’s conduct violated a constitutional right;

and, if so, (2) whether the right violated was clearly established. Saucier v. Katz,

533 U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001).1 “For claims of excessive force

in violation of the Eighth or Fourteenth Amendments, however, a plaintiff can

overcome a defense of qualified immunity by showing only the first prong, that his

Eighth or Fourteenth Amendment rights have been violated.” Fennel v. Gilstap,

559 F.3d 1212, 1216-17 (11th Cir. 2009).

       A pretrial detainee’s claim of excessive force is governed by the Due

Process Clause of the Fourteenth Amendment. Cottrell v. Caldwell, 85 F.3d 1480,

1490 (11th Cir. 1996). Such claims are analyzed under the same standard as a

prisoner’s claim under the Eighth Amendment. Id.



       1
        The Supreme Court recently held that, “while the sequence set forth [in Saucier] is often
appropriate, it should no longer be regarded as mandatory.” Pearson v. Callahan, --- U.S. ----,
129 S.Ct. 808, 818 (2009).

                                                3
      To establish a claim for excessive force, a plaintiff must establish both a

subjective and objective component. Subjectively, a plaintiff “must prove that

‘force was applied ... maliciously and sadistically for the very purpose of causing

harm.’” Campbell v. Sikes, 169 F.3d 1353, 1374 (11th Cir. 1999) (quoting

Whitley v. Albers, 475 U.S. 312, 320-21, 106 S. Ct. 1078 (1986)). In determining

whether force was applied maliciously and sadistically for the very purpose of

causing harm, courts look to five factors: “(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). Objectively, a plaintiff must prove that

a requisite amount of force was used against him. “The Eighth Amendment’s

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 mankind.’” Hudson v.

McMillian, 503 U.S. 1, 10, 112 S.Ct. 995, 1000 (1992) (citation omitted). Thus,

we have required that the plaintiff suffer more than a de minimis injury, Johnson,

280 F.3d at 1321, while remaining mindful of the fact that a significant injury is



                                           4
not required to establish an Eighth Amendment violation, Hudson, 503 U.S. at 8-

10, 112 S. Ct. 995, 999-1001.

      Because we must view the facts in the light most favorable to the plaintiff at

the summary judgment phase, we will summarize the facts as presented by Smith.

According to Smith, officers came to his cell after hearing him discussing an

earlier disciplinary incident with another inmate through a vent between cells. He

alleges that he submitted to being handcuffed and shackled. At that point,

Vavoulis and Bors pushed him up against the wall and began beating him. He

alleges that he was elbowed in the back of the head and that Valvoulis grabbed his

legs, causing him to fall face first onto the floor. Once on the floor, he claims he

was punched in the head, that Bors kicked him, and that Valvoulis opened his eyes

and sprayed mace or pepper spray in his face. Smith claims that after he was

removed from his cell, he was placed in a shower for 30 seconds to wash his face,

but that his cuffs were not removed to allow him to wipe his face. As to injuries

suffered, Smith claims that his wrists were cut, that he had “knots” on his head,

that he was bleeding from the mouth, and was bruised from the kicks. He also

claims he suffered a burning sensation from the mace. Smith admits that a nurse

was called to examine him directly after the incident. According to her reports,

Smith reported no injuries beyond the burning sensation from the mace and her



                                           5
visual inspection revealed none. Smith alleges that she ignored his injuries and

only asked him if the mace was bothering him. Smith also admits that all of his

alleged injuries healed without treatment.

      The district court did not err in concluding that under Smith’s version of the

facts, the defendants applied force not in “a good faith effort to maintain or restore

discipline” but “maliciously and sadistically for the very purpose of causing harm.”

Whitley, 475 U.S. at 320-21. Smith concedes that he was interacting with another

inmate. Based on previous disturbances Smith had created, those actions justified

the defendants shackling him and removing him from his cell. According to

Smith’s deposition, however, when the defendants came to remove him from his

cell, he calmly submitted to being shackled. At that point, the need for the

application of any force, other than escorting Smith out of the cell, was very low.

Smith claims that after calmly submitting to being shackled, the defendants set

upon him, elbowing him to the head, throwing him to the ground, kicking him, and

spraying him in the face with mace. Given the minimal need for additional force

under Smith’s version of the events, the amount of force applied necessarily

appears inordinate compared to the need for force.

      Turning to the objective component of the inquiry, we find this a closer

question. According to Smith, in addition to the burning from the mace, he



                                             6
suffered bruises, a deep cut on his wrist and swelling, and “knots” on his head.

The attack also left him bleeding from the mouth. He stated that his wrists were so

swollen that he could barely write. The nurse’s report, taken roughly 10 to 15

minutes after the event occurred, shows that Smith reported no injuries to the nurse

at that time. Smith contends that the nurse ignored his injuries. Although a

significant injury is not required, by his own admission, Smith’s alleged injuries

healed without any medical treatment. Nevertheless, the injuries alleged by Smith

are of a similar character to those suffered by the inmate in Hudson. In that case,

the Supreme Court held that “bruises, swelling, loosened teeth, and a cracked

dental plate, are not de minimis for Eighth Amendment purposes.” 503 U.S. at 10.

As in that case, the extent of Smith’s alleged injuries, if proven, “provides no basis

for dismissal of his § 1983 claim.” Id.

      Because Smith’s version of the facts satisfies both the subjective and

objective requirements for an Eighth Amendment violation, the district court did

not err in denying the defendants motion for summary judgment. Upon review of

the record on appeal and the parties’ briefs, we affirm.

      AFFIRMED.2




      2
          Appellants’ motion to file reply brief out of time is granted.

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