              Case: 19-10889    Date Filed: 07/01/2020   Page: 1 of 9



                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 19-10889
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 3:15-cv-01536-HLA-MCR


EDDIE L. ASH,


                                                               Plaintiff-Appellant,

                                     versus

CHRISTOPHER LANDRUM, et al.,

                                                                        Defendants,

J. L. BLACK,
In Their Individual Capacity,
J. N. KIRBY,
In Their Individual Capacity,

                                             Defendants-Appellees.
                          ________________________

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

                                  (July 1, 2020)
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Before ROSENBAUM, JILL PRYOR and DUBINA, Circuit Judges.

PER CURIAM:

      Appellant Eddie Ash, a federal prisoner proceeding pro se, appeals the

district court’s grant of summary judgment in favor of Suwanee Correctional

Institute Officers J.L. Black and J.N. Kirby (collectively, “the officers”) on his

excessive force claim. On appeal, Ash argues that (1) the magistrate judge abused

its discretion by denying Ash’s motion to compel discovery; and (2) the district

court erred by granting summary judgment to the officers because it misconstrued

video footage of the incident at issue and failed to consider the full extent of his

injuries. Ash contends that the officers violated his Eighth Amendment rights

when they slammed him “head first to the floor,” and the district court’s denial of

his motion to compel discovery prevented him from introducing evidence

supporting his claim that he suffered a serious injury as a result of the incident.

                                           I.

      We generally review the denial of a motion to compel discovery for abuse of

discretion. Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282, 1285 (11th Cir.

2001). “When a pretrial matter not dispositive of a party’s claim or defense is

referred to a magistrate judge to hear and decide,” a party may object to the

magistrate judge’s order on the matter “within 14 days after being served with a

copy.” Fed. R. Civ. P. 72(a). “A party may not assign as error a defect in the order


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not timely objected to.” Id. We have stated that a party who fails to object to a

magistrate judge’s order in a non-dispositive matter waives the issue and cannot

raise it on appeal. Farrow v. West, 320 F.3d 1235, 1248 n.21 (11th Cir. 2003).

      Ash cannot challenge on appeal the magistrate judge’s order denying his

motion to compel discovery because he did not object to the order before the

district court. Hence, we will not consider this issue.

                                          II.

      We review a grant of summary judgment de novo. Alvarez v. Royal Atl.

Developers, Inc., 610 F.3d 1253, 1263 (11th Cir. 2010). In doing so, we “will

affirm if, after construing the evidence in the light most favorable to the

non-moving party, we find that no genuine issue of material fact exists.” Id. at

1263-64. “Genuine disputes are those in which the evidence is such that a

reasonable jury could return a verdict for the non-movant. For factual issues to be

considered genuine, they must have a real basis in the record.” Mize v. Jefferson

City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quotation marks omitted).

The moving party has the initial burden of demonstrating, in the record, an absence

of a genuine issue of material fact. Clark v. Coats & Clark, Inc., 929 F.2d 604,

608 (11th Cir. 1991). When that burden is met, the burden then shifts to the

non-movant to show a genuine issue of material fact to preclude summary

judgment. Id.


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      The Eighth Amendment “prohibits the unnecessary and wanton infliction of

pain.” Thomas v. Bryant, 614 F.3d 1288, 1303 (11th Cir. 2010) (quotation marks

omitted). In determining whether prison officials are entitled to summary

judgment in the context of an excessive force claim, courts “must determine

whether the evidence goes beyond a mere dispute over the reasonableness of a

particular use of force or the existence of arguably superior alternatives.”

Campbell v. Sikes, 169 F.3d 1353, 1375 (11th Cir. 1999) (quotation marks

omitted). Instead, courts must determine whether “the evidence, viewed in the

light most favorable to the plaintiff, will support a reliable inference of wantonness

in the infliction of pain.” Id. (quotation marks and emphasis omitted).

      In the prison context, an excessive force claim requires a plaintiff to make

“an objective showing of a deprivation or injury that is sufficiently serious to

constitute a denial of the minimal civilized measure of life’s necessities and a

subjective showing that the official had a sufficiently culpable state of mind.”

Thomas, 614 F.3d at 1304 (quotation marks omitted). Both inquiries are

contextual, and the objective harm inquiry is responsive to contemporary standards

of decency. Id. Not every “malevolent touch” by a prison guard amounts to

excessive force, but a de minimis use of force may be cognizable under the Eighth

Amendment if it is “repugnant to the conscience of mankind.” Wilkins v. Gaddy,

559 U.S. 34, 37–38, 130 S. Ct. 1175, 1178 (2010) (quotation marks omitted).


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While a plaintiff complaining about a push or shove almost certainly fails to state a

valid excessive force claim where no discernible injury occurs, “[i]njury and force

. . . are only imperfectly correlated,” and “[a]n inmate who is gratuitously beaten

by guards does not lose his ability to pursue an excessive force claim merely

because he has the good fortune to escape without serious injury.” Id. at 38, 130 S.

Ct. at 1178–79.

      For the subjective intent prong of excessive force claims, a plaintiff must

show that “the defendants applied force maliciously and sadistically for the very

purpose of causing harm.” Thomas, 614 F.3d at 1304 (quotation marks omitted).

“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 to cause harm.” Skrtich v. Thornton, 280 F.3d 1295,

1300 (11th Cir. 2002) (quotation marks omitted, alteration in original). To

determine whether force was applied maliciously and sadistically to cause harm,

we consider:

      (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 (quotation marks omitted).



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      “Qualified immunity protects government officials performing discretionary

functions from suits in their individual capacities unless their conduct violates

clearly established statutory or constitutional rights of which a reasonable person

would have known.” Andujar v. Rodriguez, 486 F.3d 1199, 1202 (11th Cir. 2007)

(quotation marks omitted). “When it is undisputed . . . that government officials

were acting within their discretionary authority, the burden is on the plaintiff to

establish that qualified immunity is not appropriate.” Id. at 1203 n.2. “To

determine whether a plaintiff has met h[is] burden, a court must both decide

whether the facts that a plaintiff has alleged . . . make out a violation of a

constitutional right and whether the right at issue was clearly established at the

time of defendant’s alleged misconduct.” Maddox v. Stephens, 727 F.3d 1109,

1120 (11th Cir. 2013) (quotation marks omitted, second alteration in original).

However, a plaintiff alleging excessive force can overcome a qualified immunity

defense by showing that his Eighth Amendment rights have been violated without

showing that the rights were clearly established. Fennell v. Gilstrap, 559 F.3d

1212, 1216–17 (11th Cir. 2009).

      “When opposing parties tell two different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury could believe it, a court

should not adopt that version of the facts for purposes of ruling on a motion for

summary judgment.” Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776


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(2007). Accordingly, when an incident is recorded and “the video obviously

contradicts [the p]laintiff’s version of the facts, we accept the video’s depiction.”

Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1315 (11th Cir. 2010); see also

Mobley v. Palm Beach Cty. Sheriff Dep’t, 783 F.3d 1347, 1350 n.1 (11th Cir 2015)

(noting that a photograph showing the collapsed roof of a truck contradicted the

plaintiff’s contention that a collision caused minimal damage and bent the door

frame). “[W]here an accurate video recording completely and clearly contradicts a

party’s testimony, that testimony becomes incredible.” Morton v. Kirkwood, 707

F.3d 1276, 1284 (11th Cir. 2013). However, where the video does not clearly

depict the event, and there is evidence supporting both versions of events, we will

accept the plaintiff’s version as controlling. Shaw v. City of Selma, 884 F.3d 1093,

1097 & n.1, 1099 (11th Cir. 2018) (assuming that an armed individual did not raise

his weapon, as alleged by the individual’s estate, where the video did not show the

arm in which he held the weapon). In Pourmoghani-Esfahani, we noted that the

video footage of the events at issue was “often not obviously contradictory” to the

plaintiff’s account, so we “credited [p]laintiff’s version of the record evidence

where no obviously contradictory video evidence [wa]s available.” 625 F.3d at

1315.

        “[A]bsent extraordinary circumstances, legal theories and arguments not

raised squarely before the district court cannot be broached for the first time on


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appeal.” Bryant v. Jones, 575 F.3d 1281, 1308 (11th Cir. 2009). Therefore, as an

initial matter, we do not consider Ash’s argument that the officers violated the

Florida Department of Corrections’ rules, as he did not raise it before the district

court.

                                           III.

         We conclude from the record that the district court erred in granting

summary judgment to the officers because there is a genuine issue of material fact

regarding whether the force used was excessive. Due to its poor quality, the video

footage, which we reviewed, does not obviously contradict Ash’s statements that

he did not resist the officers and they slammed him head-first to the ground, so the

district court should have accepted Ash’s account of those events for purposes of

summary judgment. The district court further erred by finding that Ash suffered

only bruising and tenderness to his left shoulder, as there also was evidence that he

suffered ongoing pain and numbness to his neck, left arm, and fingers. Construing

the evidence in the light most favorable to Ash, we conclude that he satisfied both

prongs of an excessive force claim. Moreover, as Ash’s allegations establish an

Eighth Amendment violation, we conclude that the district court erred in

determining that the officers were entitled to qualified immunity.

         Accordingly, for the aforementioned reasons, we dismiss Ash’s appeal to the

extent that he challenges the discovery order, and we vacate the district court’s


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grant of summary judgment to the officers and remand the case to the district court

for further proceedings consistent with this opinion.

      DISMISSED IN PART, VACATED AND REMANDED IN PART.




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