[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-10241 May 11, 2007
Non-Argument Calendar THOMAS K. KAHN
CLERK
D. C. Docket No. 05-00170-CV-1
NICKOLAS FELDER,
Plaintiff-Appellant,
versus
TONY HOWERTON, Warden,
DENNIS BROWN, Deputy Warden, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Georgia
(May 11, 2007)
Before DUBINA, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
At the time he filed this lawsuit, appellant Nickolas Felder (“Felder”) was a
prisoner at Augusta State Medical Prison in August, Georgia. Felder brought this
action under 42 U.S.C. § 1983 alleging that defendants Riles, Taylor, and
Woodson, used excessive force on him. Felder also claimed that defendants
Brown and Howerton were aware that other inmates of the prison were being
beaten and/or tortured by security staff and yet they failed to take any corrective
action. Felder’s complaint also contained a torture claim under 18 U.S.C. § 2340,
et seq., and state law claims under the Georgia Tort Claims Act. See O.C.G.A. §
50-21-25(a).
We review a district court’s grant of summary judgment de novo. U.S.
Anchor Mfg., Inc. v. Rule Industries, Inc., 7 F.3d 986, 993 (11th Cir. 1993).
After reviewing the record and reading the parties’ briefs, we conclude that
the district court properly granted the defendants’ motion for summary judgment
on Felder’s Eighth Amendment excessive force claims and his Fourteenth
Amendment due process claims. The record demonstrates that Felder suffered at
most a superficial three millimeter abrasion on his chest. The record also
demonstrates that Felder initiated the incident in question by attacking Officer
Riles. Feeling threatened, Officer Riles responded by pushing Felder down and
holding him down until help arrived. Felder received no marks on his neck and no
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bruises. Other than the self-serving testimony offered by Felder, there was no
other evidence that Officers Taylor and Woodson used any force against him.
Indeed, the medical evidence demonstrated that Felder suffered no fractures and
indicated that his superficial abrasion was suffered in a basketball game five days
prior to the incident in question.
We also agree with the district court’s conclusion that Warden Howerton
and Deputy Warden Brown were entitled to summary judgment because they were
not present during the incident. As the district court correctly found, it is well-
settled law that § 1983 does not provide for vicarious liability. See Monell v.
Dep’t of Soc. Servs., 436 U.S. 658 (1978); Denno v. Sch. Bd. of Volusia County,
218 F.3d 1267, 1276 (11th Cir. 2000). Because Felder failed to establish that a
constitutional violation occurred, it was not necessary for the district court to
determine if there was a policy, custom or practice causing such deprivation. See
Graham v. Conner, 490 U.S. 386, 394 (1989). We also agree with the district
court that Felder’s claim for a violation of 18 U.S.C. § 2340, et seq., fails as a
matter of law. Because the district court determined that there was no excessive
force, there can be no torture as defined by § 2340.
Finally, we agree that the district court properly dismissed Felder’s state law
claims.
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For the above-stated reasons, and because we find no merit to any of the
arguments Felder makes in this appeal, we affirm the district court’s grant of
summary judgment.
AFFIRMED.
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Nickolas Felder v. Tony Howerton
Combined Opinion