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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-15992
Non-Argument Calendar
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D.C. Docket No. 4:09-cv-00444-RH-WCS
TRAVIS MCKINNEY,
Plaintiff - Appellant,
versus
SHERIFF,
JASON NEWLIN,
Deputy,
Defendants - Appellees,
SCOTT POWELLS, et al.,
Defendants.
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Appeal from the United States District Court
for the Northern District of Florida
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(May 31, 2013)
Before CARNES, BARKETT and BLACK, Circuit Judges.
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PER CURIAM:
Travis McKinney, a prisoner proceeding pro se, appeals the district court’s
grant of summary judgment for former Wakulla County Sheriff David Harvey in
his 42 U.S.C. § 1983 action, as well as the denial of his request to file a third
amended complaint. McKinney alleged that the state circuit judge ordered him
gagged during a violation of probation hearing, and that Harvey observed but took
no action as the courtroom deputies gagged him with duct tape and a used
handkerchief.1 The district court concluded that Harvey’s observation of these acts
did not cross a constitutional threshold because the use of a gag is not per se
unconstitutional, and assuming all facts in the light most favorable to McKinney,
the deputies’ actions did not amount to excessive force. After review, we affirm
the district court.
Excessive Force
McKinney first argues the district court erred in granting summary judgment
because he only needed to prove that his rights were violated to prevail.
McKinney contends the officers behaved maliciously and sadistically by removing
and reapplying duct tape to his mouth, and by using a dirty handkerchief.
1
To the extent McKinney’s claim arose when he was a pre-trial detainee, his claim is grounded
in the Fourteenth Amendment. Bozeman v. Orum, 422 F.3d 1265, 1271 (11th Cir. 2005).
Notwithstanding, “[a] claim of excessive force under the Fourteenth Amendment is analyzed as
if it were an excessive-force claim under the Eighth Amendment.” Fennell v. Gilstrap, 559 F.3d
1212, 1216 n.5 (11th Cir. 2009).
2
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We review the grant of summary judgment de novo. Rioux v. City of
Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir. 2008). “Summary judgment is
rendered if the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show 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.” Id. (citing Fed. R. Civ. P. 56(c)). In making this assessment, we must view
all evidence and all factual inferences reasonably drawn from the evidence in the
light most favorable to the nonmoving party, and must resolve all reasonable
doubts about the facts in favor of the nonmovant. Id.
To determine whether the deputies used excessive force in gagging
McKinney such that Harvey is liable under § 1983,2 our core inquiry is “whether
force was applied in a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.” Hudson v. McMillian, 112 S. Ct. 995,
999 (1992). In determining whether force was applied maliciously and
sadistically, we 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 . . .” Campbell v. Sikes, 169
2
“If
a police officer, whether supervisory or not, fails or refuses to intervene when a
constitutional violation . . . takes place in his presence, the officer is directly liable under
[§] 1983.” Ensley v. Soper, 142 F.3d 1402, 1407 (11th Cir. 1998).
3
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F.3d 1353, 1375 (11th Cir. 1999) (quotations omitted). However, “[t]he 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, 112
S. Ct. at 1000 (quotations omitted).
The district court did not err in granting summary judgment in favor of
Harvey because no genuine issue of material fact existed as to whether
McKinney’s constitutional rights were violated. The order by a state court judge to
gag McKinney was not itself per se unconstitutional, because it was directed by the
judge to be done for the restoration of order in his courtroom. See Illinois v. Allen,
90 S. Ct. 1057, 1061 (1970) (stating that “bind[ing] and gag[ging a defendant],
thereby keeping him present” is one “constitutionally permissible way[] for a trial
judge to handle an obstreperous defendant”).
Furthermore, evidence indicated that the duct tape and handkerchief were
not used maliciously or sadistically to cause harm, but rather, in a good faith effort
to maintain or restore discipline. Hudson, 112 S. Ct. at 999. Due to McKinney’s
persistent interruptions, the repeated removal of the duct tape, allowing him to
speak, and subsequent reapplication, permitting the judge to speak, was reasonably
related to the need for the application of the gag. Sikes, 169 F.3d at 1375. Any
force used in gagging McKinney was only increased relative to his continued
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refusal to remain quiet. Id. Moreover, the extent of the alleged injury—that
removal of the gag caused his hair to be pulled and his gums to bleed—was
minimal. Id. McKinney himself removed the gag more than once. Because the
evidence does not support an inference of malicious or sadistic application of
force, we affirm the district court’s grant of Harvey’s motion for summary
judgment.
Motion for Leave to Amend the Complaint
McKinney next argues the district court erred in denying his request to
amend as futile, particularly because he alleged a civil rights violation. We review
the denial of a motion for leave to amend a complaint for an abuse of discretion.
Covenant Christian Ministries, Inc. v. City of Marietta, 654 F.3d 1231, 1239 (11th
Cir. 2011). Futility justifies the denial of leave to amend where the complaint, as
amended, would be subject to dismissal. Burger King Corp. v. Weaver, 169 F.3d
1310, 1320 (11th Cir. 1999).
The district court did not abuse its discretion in denying McKinney’s motion
for leave to amend as futile because it permitted him to amend his complaint on
two prior occasions, and he only requested leave to amend a third time after
Harvey filed his motion for summary judgment. Furthermore, his proposed third
amended complaint named a party previously dismissed by the court and included
claims not properly brought under a civil rights action.
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AFFIRMED.
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