[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 13, 2007
No. 06-12350 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00202-CV-OC-10-GRJ
ERNEST CLARK,
Plaintiff-Appellant,
versus
ARGUTTO, Correctional Officer at the Federal
Correctional Complex in Coleman,
et al.,
Defendants,
ANDERSON, former Lieutenant at Federal
Correctional Complex in Coleman,
WARD, Correctional Officer at the Federal
Correctional Complex in Coleman,
JOHNSON, Associate Warden at the Federal
Correctional Complex in Coleman,
JENKINS, Captain at the Federal
Correctional Complex in Coleman,
LYNGAAS, Special Criminal Investigations Agent
at the Federal Correctional Complex in Coleman,
et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 13, 2007)
Before HULL, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Federal inmate Ernest Franklin Clark, proceeding pro se, appeals the district
court’s orders granting summary judgment in favor of the defendants on all of his
claims filed pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971). Clark also appeals the district
court’s orders denying two motions to amend his complaint and his motion for
default judgment. After review, we affirm in part and reverse in part.
I. BACKGROUND
The gravamen of Clark’s Bivens complaint revolves around a May 1, 2002
incident while Clark was housed at Coleman Federal Correctional Facility
(“Coleman”). Among other things, Clark’s Bivens complaint alleges that, because
Clark is a prison litigator, prison guards tortured him by repeatedly tightening hand
restraints, injuring his left wrist, and then kicking him to the floor.1
1
We do not discuss the facts relating to Clark’s other claims, which we conclude herein
were properly disposed of by the district court. Furthermore, the facts we discuss are taken from
2
According to Clark, during a “controlled move” at Coleman, Clark
attempted to enter the prison library. As Clark passed through the metal detector,
the machine’s alarm was triggered, falsely indicating that he was carrying metal.
After Clark tried two more times to pass through the metal detector without
success, Clark turned to the guard, Brian Argutto, and asked that he be pat-
searched. When Argutto refused, Clark explained that he needed to go to the
library to use the typewriters to meet a litigation deadline. Argutto responded with
profanity and also stated, “The Bureau is tired of punks like you and your ... damn
law suits. You’re not going to the Law Library today, Litigator. Get yor [sic] ass
against the wall!” Clark complied.
While Clark stood against the wall, Argutto told Clark that if he continued to
file grievances and lawsuits, the Coleman staff would “make [his] life a living
hell!” Clark requested to speak with a Lieutenant. Argutto shouted angrily, “Shut
yor [sic] . . . mouth, Ligitator. The Lieutenant doesn’t speak to shit like you!”
Afraid that Argutto would become physically violent, Clark attempted to
leave to go to the Lieutenant’s Office to speak with the Operations Lieutenant.
Argutto and another guard, Mark Anderson, instructed Clark to submit to hand
Clark’s sworn declaration submitted in support of summary judgment and from portions of the
record that are not in dispute. At the summary judgment stage, we must construe the facts in
favor of Clark. However, we note that the defendants vigorously dispute most of Clark’s version
of events.
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restraints. Clark told Argutto and Anderson that being put in hand restraints during
a controlled move, while hundreds of inmates were present in the compound, posed
an unnecessary threat to his physical safety and that he would agree to put the hand
restraints on once the other inmates had been evacuated or Clark had been taken to
a secure area.
Anderson ultimately placed the hand restraints on Clark’s wrists “unbearably
tight,” and told Clark, “Once th[e]se babies work their magic, those hands won’t be
much good for writting [sic] law suits anymore!” Argutto then added, “Don’t you
just love how those cuffs feel, Litigator!”
Once Clark was handcuffed, guards Brian Ward, Mariano Perez and “ a
number of unknown named defendants” converged on the area. Clark told Perez
that he was in a great deal of pain because the hand restraints were too tight. Perez
told Clark to “shut . . . up!” Anderson, Perez and Ward, along with one of the
unidentified guards, escorted Clark to the Lieutenant’s Office and into the holding
cell.
Once in the holding cell, Clark pleaded with his escorts to loosen the hand
restraints. Anderson again told Clark to “shut . . . up” and told Clark to stand and
face the wall. Clark complied, with Ward holding him by one arm and the
unidentified guard by the other. While Clark stood facing the wall, guards Scott
Lyngaas, Feliz Berrios, Vincent Soto and approximately ten unidentified guards
4
entered the holding cell. Ward removed his hand from Clark’s arm and placed it
over the hand restraint on Clark’s left wrist. After standing facing the wall for
approximately 15 minutes, Clark began to lose feeling in his left hand and wrist.
Clark told the guards that he could not feel his left hand and begged them to do
something about the hand restraints.
At this point, Ward increased the force of his grip on the left restraint,
squeezing the cuff tighter, causing a burning sensation to shoot from the left side of
Clark’s hand, along his left arm, to his shoulder. Clark again begged the guards to
loosen the hand restraints and again Ward applied more force to the left cuff.
According to Clark, for the next twenty minutes, each time Clark begged
Ward to stop tightening the cuffs or told the guards that he could not feel his left
hand, Ward would squeeze the cuff again and Anderson would state, “stop suing!”
While in the holding cell, the guards did not question Clark about the incident at
the metal detector. Furthermore, none of the other guards present in the holding
cell intervened. Instead, they “sadistically cheer[ed] and urg[ed] the defendant
Ward on.”
At one point, Dennis Johnson, an associate warden at Coleman, entered the
holding cell and asked Anderson what Clark had done. Anderson told Johnson that
Clark “is a trouble maker that likes to sue, so we are teaching him a lesson!” Clark
told Johnson he had done nothing wrong and that the hand restraints were too tight
5
and Clark could not feel his hand. Johnson looked at Clark with contempt and left.
After Johnson left, Anderson told Ward to “kick his ass down!” Ward
“very violently and very painfully,” kicked Clark down to the floor. Because
Clark’s hands were restrained, he could not break his fall and his head struck the
floor, causing Clark to become dazed and disoriented.
When Clark’s head cleared, he had been carried from the holding cell by
Anderson and Ward and was lying face down on the floor in the hallway leading to
the Health Services and Special Housing Units. An education technician, Eugene
Nabritt arrived and observed Clark. Clark begged Nabritt to loosen the hand
restraints because Clark could not feel his hand. Nabritt did nothing in response.
Anderson knelt down to Clark’s face and said, “[D]on’t worry about the pain, it’ll
soon go away because dead men do not feel pain. As soon as we get to the hole,
I’m going to kill your ass!” Afraid that Anderson would carry out his threat, Clark
told Anderson that he would never file another lawsuit as long as he lived and that
he had learned his lesson. Anderson then ordered Ward and another unidentified
guard to take Clark to “the hole.”
Ward and the other guard took Clark to the Special Housing Unit (“SHU”)
and placed Clark in a receiving cell. At this point, one of the SHU staff loosened
the cuff on Clark’s left wrist and took Clark to be examined by the medical staff.
Prison medical records of the May 1 examination note superficial abrasions
6
on his right leg, left arm and chest, but do not mention a wrist injury. Clark,
however, contends the medical staff ignored his requests that they examine his
wrist. According to Clark, a red patch formed on the back of his left hand on the
evening of May 1 and, by May 2, his left wrist was swollen and numb and even a
slight touch to his left wrist produced a tingling sensation from the left side of his
hand up to his left shoulder.
Prison medical records first note Clark’s wrist injury on May 13, when an
examining doctor explained to Clark that his wrist nerve would take time to heal.
Clark was seen by another prison doctor the following day, May 14. This doctor
noted superficial abrasions on Clark’s left wrist and ordered an X-ray, which
revealed no bony abnormality. By May 29, although Clark continued to complain
of wrist pain, the abrasions to Clark’s left wrist had completely healed, but resulted
in two small scars.
An MRI performed several months after the incident showed no sign of
injury, but revealed that a small ganglion cyst had developed in a 4 mm area on
Clark’s left wrist. A ganglion is a collection of nerve cell bodies or a cyst that
commonly is found attached to the tendon sheath or the tendon of the hand, foot or
wrist. Ganglion cysts are often treated by “waiting and watching” because they
sometimes disappear on their own. Ganglion cysts can be painful, at which point
immobilization of the hand may be recommended. Also, the cyst may grow larger,
7
requiring aspiration of the fluid or surgery.
In Clark’s case, the medical staff concluded that no further treatment was
necessary. The prison’s medical records indicate that Clark never sought pain
medication for his wrist from either the medical staff or the prison commissary.
II. DISCUSSION
On appeal, Clark raises several arguments that are clearly without merit and
which we address only briefly. First, the district court did not abuse its discretion
when it denied Clark’s June 2004 and November 2005 motions to amend his
complaint due to prejudice to the defendants, who already had filed summary
judgment motions, one of which already had been ruled upon. See Maynard v. Bd.
of Regents, 342 F.3d 1281, 1287 (11th Cir. 2003) (explaining that, although
motions to amend are to be freely granted when justice so requires, the district
court may deny the motion for, among other things, undue prejudice to the
defendant).
Second, the district court did not abuse its discretion when it denied Clark’s
motion for a default judgment because, contrary to Clark’s claims, the defendants
defended against every claim Clark asserted and Clark failed to produce any
evidence that the defendants committed perjury.
Third, the district court properly dismissed without prejudice Clark’s claims
against defendants Dr. Jae Shim, Mark Anderson and Brian Argutto because Clark
8
failed to serve these defendants within the time required under Federal Rule of
Civil Procedure 4(m), failed to request an extension of time for service, and, in any
event, failed to show good cause for extending the service period. See Fowler v.
Jones, 899 F.2d 1088, 1095 (11th Cir. 1990).
Fourth, because defendants Anderson and Argutto were never served and
thus were properly dismissed, the district court did not err in granting summary
judgment on Clark’s Eighth Amendment excessive force claim relating to them,
including the initial application of handcuffs. See Brown v. Johnson, 387 F.3d
1344, 1351 (11th Cir. 2004) (explaining that we may affirm on any ground that
finds support in the record).
Fifth, the district court did not err in granting summary judgment on Clark’s
Eighth Amendment medical treatment claims as to the cyst on Clark’s wrist
because even assuming arguendo that the cyst was an objectively serious medical
need, Clark received an MRI and has not shown deliberate indifference to a serious
medical need. See Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003); Brown,
387 F.3d at 1351.
Sixth, the district court properly granted summary judgment as to Clark’s
Fifth Amendment due process claim because Clark failed to present evidence of a
protected property interest in the withdrawn prisoner account funds because he
consented to their withdrawal. Furthermore, to the extent Clark brought a claim
9
under the Federal Tort Claims Act for the mishandling of those account funds after
they were withdrawn, Clark failed to exhaust his administrative remedies.
In addition to the above, Clark argues that the district court erred when it
granted summary judgment on his excessive force claim against Ward, who
applied the excessive force of repeatedly tightening the left hand cuff in response
to Clark’s complaints of pain and numbness and kicking Clark, and against
Lyngaas, Berrios, Soto and Johnson, who were present in the holding cell during
Ward’s actions and failed to intervene.2 We now address these claims.
Under the Eighth Amendment, “‘whether or not a prison guard’s application
of force is actionable turns on whether that force was applied in a good faith effort
to maintain or restore discipline or maliciously or sadistically for the very purpose
of causing harm.’” Bozeman v. Orum, 422 F.3d 1265, 1271 (11th Cir. 2005)
2
We reject the defendants’ claims that Clark failed to exhaust his administrative remedies
as to these particular Eighth Amendment claims. On the portion of the BP-8 form describing his
specific complaint, Clark wrote, “On May 1, 2002, in contrariety [sic] to BOP Regulatory
directives governing the use of mechanical restraints I was brutally tortured by staff while other
staff present refused to intervien [sic], and as a result of such torture I sustained severe physical
and psycological [sic] injuries.” On May 30, 2002, Clark completed a Request for
Administrative Remedy, case number 269769-F1, in which he stated the following:
On May 1, 2002, in contrariety [sic] to BOP regulatory directives governing
the use of mechanical restraints, I was brutally tortured by staff while other staff that
were present callusly [sic] refused to intervene.
It is clear from the record that the BOP was given sufficient notice to investigate Clark’s
allegations of (1) excessive force in the holding cell after he was placed in hand restraints and (2)
failure to intervene. See Jones v. Bock, __ U.S. ___, 127 S. Ct. 910, 922-23 (2007).
10
(quoting Brown v. Smith, 813 F.2d 1187, 1188 (11th Cir. 1987)).3 In determining
whether the force was applied maliciously and sadistically to cause harm, courts
consider a variety of factors, including: “the need for the application of force, the
relationship between that need and the amount of force used, the threat reasonably
perceived by the responsible officials, and any efforts made to temper the severity
of a forceful response.” Skrtich v. Thornton, 280 F.3d 1295, 1300 (11th Cir. 2002)
(quotation marks ommitted). “From consideration of such 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.” Id. at
1300-01 (internal quotation marks omitted).
However, not “every malevolent touch by a prison guard gives rise to a
federal cause of action.” Hudson v. McMillian, 503 U.S. 1, 9-10, 112 S. Ct. 995,
1000 (1992). Rather, “[t]he Eighth Amendment’s prohibition of ‘cruel and
unusual’ punishments necessarily excludes from constitutional recognition de
3
We review de novo a district court’s grant of summary judgment, viewing all the facts in
the record in a light most favorable to the non-moving party. Skrtich v. Thornton, 280 F.3d
1295, 1299 (11th Cir. 2002). Summary judgment is proper if the record shows that “there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c).
Clark also argues that the district court erred in considering the defendants’ second
summary judgment motion because that motion exceeded the page limit prescribed by the local
rules. The district court’s decision to consider the second summary judgment motion was within
its discretion and falls under the district court’s power to control its docket. See Young v. City
of Palm Bay, 358 F.3d 859, 863-64 (11th Cir. 2004).
11
minimis uses of physical force, provided that the use of force is not of a sort
repugnant to the conscience of mankind.” Id. (quotation marks omitted)
Here, accepting as we must Clark’s version of events, we conclude that the
district court erred in granting summary judgment on Clark’s Eighth Amendment
excessive force claim. As Clark describes it, Ward repeatedly tightened Clark’s
left hand restraint in response to Clark’s complaints of pain and numbness. Ward
also kicked Clark to the floor hard enough that Clark hit his head and became
disoriented and dazed.
During this treatment, Clark alleges that he was subjected to threatening and
abusive language. See Bozeman, 422 F.3d at 1271 n.11 (explaining that prison
guards’ words, though not determinative, are relevant to the prison guards’
malicious intent). According to Clark, he was repeatedly taunted for being “a
litigator.” One guard present allegedly told Clark that the treatment he was
receiving was to teach Clark a lesson for being a litigious prisoner and, in response
to Clark’s complaints of pain, threatened to kill Clark. Other guards present not
only failed to intervene, but allegedly encouraged Ward. Furthermore, this alleged
treatment continued for approximately twenty minutes and stopped only after
Clark agreed not to file any more lawsuits. Under Clark’s version of events, Clark
was safely restrained in handcuffs in a secure holding cell and was fully complying
with the guards’ instructions to stand facing the wall. See, e.g., Bozeman, 422
12
F.3d at 1271-72 (involving the malicious application of force after the threat had
passed and the inmate had agreed to comply).
In other words, Clark presented evidence from which a jury could conclude
that Ward, with other guards looking on approvingly, applied force maliciously
and sadistically to cause Clark harm and not in a good faith effort to restore or
maintain discipline. Furthermore, a jury could conclude that the force applied
actually caused Clark harm. The abrasions and nerve damage to Clark’s left wrist
took several weeks to heal and left scars and a possible ganglion cyst. Clark also
alleges that he still experiences some pain, numbness and stinging. While Clark’s
injuries were not severe, we cannot say that they were de minimis.
In sum, the evidence viewed in a light most favorable to Clark is sufficient
to support a jury finding that Ward violated Clark’s Eighth Amendment rights in
the holding cell of the Lieutenant’s office.4 Furthermore, because liability can be
imposed upon prison guards who are present at the scene and who are in a position
to intervene but fail to take reasonable steps to stop excessive force by other
guards, a jury could also conclude that defendants Lyngaas, Berrios, Soto and
Johnson violated Clark’s Eighth Amendment rights by being present in the holding
4
Under our circuit precedent, where an Eighth Amendment excessive force violation is
established, “there is no room for qualified immunity.” Johnson v. Breedon, 280 F.3d 1308,
1321-22 (11th Cir. 2002). Therefore, to the extent defendants asserted that they were entitled to
qualified immunity, that argument is unavailing.
13
cell and in a position to intervene, but failing to intervene. See Skrtich, 280 F.3d at
1301; Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986). Accordingly, we
reverse the district court’s entry of summary judgment in favor of defendants
Ward, Lyngass, Berrios, Soto and Johnson on Clark’s excessive force claim as it
relates to events occurring inside the holding cell of the Lieutenant’s office. We
conclude that factual issues exist as to what the actions were of Ward and Clark in
the holding cell and whether Lyngaas, Berrios, Soto and Johnson were present in
the cell when Ward’s actions occurred and, if present, were in a position to
intervene and failed to do so.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
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