Garrett v. Williams (INMATE 3)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

LARRY DEAN GARRETT, JR., )

Reg. No. 34790-001 )

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 2:17-CV-470-ECM-JTA

) [WO]

U.S. MARSHALS SERVICE, et al., )

)

Defendants. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

I. INTRODUCTION1

This action under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388

(1971), is before the court on an amended complaint filed pro se by Plaintiff Larry Dean

Garrett, Jr. Doc. 28. Garrett alleges he suffered serious injuries when officers with the

United States Marshals Service (“USMS”) used excessive force in effecting his arrest at a

mobile home in Eufaula, Alabama, on April 15, 2016. Id. at 2–3. Named as Defendants

by Garrett are two of the officers involved in his arrest: USMS Inspector David Onofry and

USMS Supervisory Deputy Ernest Williams. Id. Garrett seeks $50,000 in compensatory

damages and $25,000 in punitive damages against each Defendant in his individual

capacity. Id. at 4.

1 References to document numbers are to the pleadings, motions, and other materials in the court file, as

compiled and designated on the docket sheet by the Clerk. Pinpoint citations are to the page of the

electronically filed document in the court’s CM/ECF filing system, which may not correspond to pagination

on the “hard copy” of the document presented for filing.

Defendants filed a special report and supporting evidentiary materials addressing

the allegations in Garrett’s amended complaint. Doc. 50. Defendants maintain they did

not use excessive force in arresting Garrett, they did not cause Garrett’s injuries, and the

record establishes Garrett’s injuries were incurred the day before his arrest when Garrett

was beaten by three men in Birmingham who attacked him for molesting a young boy. Id.

at 1–3, 11–12. Thus, Defendants contend there is no genuine dispute as to any material

fact that would allow a reasonable factfinder to return a verdict in Garrett’s favor on his

claim that Defendants used excessive force in effecting his arrest. Id. Pursuant to the

directives in orders entered in this case (see Doc. 51 at 2–3), the court now treats

Defendants’ special report as a motion for summary judgment. Upon consideration of this

motion and the other materials in the record, the court concludes that Defendants’ motion

for summary judgment (Doc. 50) is due to be granted.

II. SUMMARY JUDGMENT STANDARD

A motion for summary judgment looks to “pierce the pleadings and to assess the

proof in order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Summary judgment is appropriate if

the pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, show there is no genuine [dispute] as to any material fact and that the

moving party is entitled to judgment as a matter of law.” Greenberg v. BellSouth

Telecomm., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (internal quotation marks omitted);

Fed. R. Civ. P. 56(a). The party moving for summary judgment “always bears the initial

responsibility of informing the district court of the basis for its motion, and identifying

those portions of the [record, including pleadings, discovery materials and affidavits],

which it believes demonstrate the absence of a genuine [dispute] of material fact.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). To shoulder this burden, the moving party can

present evidence to this effect. Id. at 322–23. Or it can show that the nonmoving party has

failed to present evidence in support of some element of its case on which it ultimately

bears the burden of proof. Id.

If the moving party meets its burden, the nonmoving party must “go beyond the

pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and

admissions on file, designate specific facts showing that there is a genuine issue for trial.”

Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593–94 (11th Cir. 1995); see also Celotex,

477 U.S. at 324; Fed. R. Civ. P. 56(e)(3). A genuine dispute of material fact exists when

the nonmoving party produces evidence that would allow a reasonable factfinder to return

a verdict in its favor. See Greenberg, 498 F.3d at 1263.

General, blatantly contradicted and merely “[c]onclusory, uncorroborated

allegations by a plaintiff in [his verified complaint or] an affidavit . . . will not create an

issue of fact for trial sufficient to defeat a well-supported summary judgment motion.”

Solliday v. Fed. Officers, 413 F. App’x 206, 207 (11th Cir. 2011) (citing Earley v.

Chamption Int’l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990). Summary judgment requires

the nonmoving party to “do more than simply show that there is some metaphysical doubt

as to the material facts.” Matsushita, 475 U.S. at 587. “A mere ‘scintilla’ of evidence

supporting the opposing party’s position will not suffice; there must be enough of a

showing that the [trier of fact] could reasonably find for that party.” Walker v. Darby, 911

F.2d 1573, 1576–77 (11th Cir. 1990).

A court ruling on a motion for summary judgment must draw all justifiable factual

inferences from the evidence in the nonmoving party’s favor. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986). Although factual inferences must be viewed in a light most

favorable to the nonmoving party and pro se complaints are entitled to liberal

interpretation, a pro se litigant does not escape the burden of establishing by sufficient

evidence a genuine dispute of material fact. Beard v. Banks, 548 U.S. 521, 525 (2006);

Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990). Finally, “[w]hen 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

(2007).

III. FACTUAL BACKGROUND

A. Garrett’s Claims

Garrett claims he suffered serious injuries as a result of excessive force used by

Defendants Onofry and Williams when they arrested him at a mobile home in Eufaula,

Alabama, on April 15, 2016. Doc. 28 at 2–3. At the time of his arrest, Garrett was a

fugitive under investigation for sexually abusing children and was wanted on a warrant for

violating the Sex Offender Registration and Notification Act (“SORNA”). Doc. 50-9 at 3;

Doc. 50-10 at 3. On April 15, Onofry and Williams, who were working with the USMS

Gulf Coast Regional Fugitive Task Force, received information that Garrett had recently

left Birmingham and gone to the Eufaula residence of his aunt, Katenia Miller. Doc. 50-9

at 3; Doc. 50-10 at 3. Onofry and Williams, accompanied by another deputy from the

USMS, went to Miller’s residence, a mobile home, to arrest Garrett. Doc. 50-9 at 3–4;

Doc. 50-10 at 3. After Onofry and Williams told Miller why they were there, Miller told

them Garrett was sitting on a bed in the master bedroom and to “go in and get him.” Doc.

50-9 at 4; Doc. 50-10 at 4. Defendants shouted, “Police, come out with your hands up.”

Doc. 50-10 at 4. When there was no response, Defendants entered the mobile home to

make the arrest. Id.

In his amended complaint, Garrett alleges that the following ensued:

Inspector Onofry came into the room of the trailer I was residing in and

pulled me out the closet and hit me across the face with a hard metallic object.

Then as I held my hand up to shield my face, I was struck again. After being

snatched into the bedroom and struck a few more times, I couldn’t see

because my eyes began to swell. I continued to shield my face and felt myself

being dragged outside the trailer.

Doc. 28 at 3.

Garrett further alleges:

After being dragged out the trailer, I was dropped on the ground on my face

down as I notice[d] Senior Inspector Williams waiting. Once I was down on

the ground and handcuffed, Williams kicked my legs apart and then kicked

me in the groin. He then stepped on my scrotum before stating, “so you like

drawing pictures of little boys, huh?” I could barely make out the Marshals

around me through my swollen eyes.

Doc. 28 at 3.

To his amended complaint, Garrett attaches two pages of medical records from

Medical Center Barbour, a hospital in Eufaula, to demonstrate the injuries he attributes to

the excessive force used by Onofry and Williams during his arrest. Doc. 28 at 6–7. The

medical records reflect that Garrett was admitted and discharged from the hospital on April

15, 2016, and indicate Garrett had sustained head injuries (specifically, contusions,

hematoma, laceration, pain, and swelling); chest injuries (to his clavicle, xyphoid, and

sternal areas); and injuries to his foot and knee. Id. The physician notes in the medical

records state that Garrett’s injuries occurred on April 14, 2016, and that the “mechanism

of injury” was “[a]lleged assault: with fists, shoes/feet while getting kicked, by unknown

person(s), ‘some dude(s).’”2 Id. at 7.

Also attached to Garrett’s amended complaint is a photograph of Garrett with a

badly swollen face, including substantial swelling around his eyes, again to demonstrate

the injuries Garrett attributes to the Defendants’ actions in his arrest.3 Doc. 28 at 8.

B. Defendants’ Evidentiary Materials

Defendants deny Garrett’s claim they used excessive force in arresting him and also

deny Garrett’s specific allegations about their actions during his arrest. Doc. 50.

Defendants argue Garrett’s allegations are blatantly contradicted by the evidentiary

materials included with their special report and that these materials, including Garrett’s

own sworn testimony at his criminal trial in December 2017, demonstrate that the injuries

about which Garrett complains were incurred on April 14, 2016—the day before

2 Garrett includes only part of the medical records. With their special report, Defendants attach additional

pages from Garrett’s medical records from Medical Center Barbour. Doc. 50-11. Garrett’s hospital

discharge summary from April 15, 2016, indicates that he suffered from contusions and soft tissue swelling

throughout his face, facial bone fracture, dental fracture, and nasal bone fracture. Id. at 5, 10.

3 Under Fed. R. Civ. P. 10 (c), the medical records and photograph attached by Garrett to his amended

complaint are part of the amended complaint for all purposes. Solis-Ramirez v. U.S. Dept. of Justice, 758

F.2d 1426, 1430 (11th Cir. 1985).

Defendants arrested Garrett—when Garrett was beaten by three men in Birmingham who

attacked him for molesting a young boy. Doc. 50 at 1–2.

The evidentiary materials submitted by Defendants show that on October 3, 2016,

(around five months after Garrett’s arrest by Defendants), a federal grand jury in the

Northern District of Alabama indicted Garrett on one count of production of child

pornography, in violation of 18 U.S.C. §§ 2251(a) and (e). Doc. 50-1. The case came to

trial in December 2017. Doc. 50-5. Garrett, assisted by standby counsel, represented

himself. Id. Garrett also testified in his own behalf. Doc. 50-4. On December 11, 2017,

the jury found Garrett guilty of the production of child pornography as charged in the

indictment. Doc. 50-2.

1. Anthony Jones’s Testimony at Garrett’s Criminal Trial

The production of child pornography charge against Garrett concerned a video on a

secure digital card (“SD card”)4 showing a five-year-old boy performing oral sex on

Garrett. Anthony Jones testified at Garrett’s trial that Garrett routinely burned movies on

CDs and sold them to others in their Birmingham neighborhood. Doc. 50-3 at 7. On April

13, 2016, Garrett had no CDs, so he burned some movies to an SD card and gave the card

to Jones. Id. That night, Jones put the SD card in his cell phone intending to watch the

movies. Id. at 8. Jones opened a file and saw a video of Garrett masturbating and making

a young boy perform oral sex on him until he ejaculated on the boy’s face. Id. at 9. Jones

4 An SD card is a memory card used in portable electronic devices. See Solo v. SD-3C LLC, 751 F.3d 1081,

1084 (9th Cir. 2014) (noting that “SD cards are the dominant form of flash memory card on the market, and

are widely used in consumer electronics devices such as cellular phones and digital cameras”).

recognized the boy in the video because he was close with the boy’s family, who lived in

the same Birmingham apartment complex as Jones, the Valley Brook Apartments. Id. at

7–8. Jones contacted the boy’s family members and showed them the video. Id. at 10–11.

The family members got extremely upset and called the Birmingham police. Id. at 11.

2. Garrett’s Testimony and Statements at His Criminal Trial

Garrett took the stand at his criminal trial, where his standby counsel conducted his

direct examination. Garrett testified that around midnight on April 13–14, 2016, Jones

lured him to an apartment in the Valley Brook Apartments, where Jones and two other men

severely beat him in retribution for his molestation of the boy seen on the SD card. Doc.

50-4 at 20, 33–35. According to Garrett, Jones told him that a DVD he had given him

didn’t work and then brought him to the apartment on the pretext of demonstrating it didn’t

work. Id. at 20, 33. Jones took Garrett to the back of the apartment, plugged in the TV,

turned it on, and ejected the DVD. Id. at 34. According to Garrett, Demetrius Holmes

(who was related to the minor in the video) and an unknown man with dreadlocks entered

the apartment. Id. Garrett testified that Jones then came from behind and grabbed him and

held up his arms. Id. Garrett testified that Demetrius Holmes started punching him in the

face, and his nose began bleeding. Id. Garrett testified that Jones pushed him onto the

floor and kicked him in the back, and then all three men “stomp[ed] [him] on the floor.”

Id. Garrett stated that Jones urinated on him while he lay bleeding on the floor. Id. Garrett

testified that Jones then pulled out a gun and told Garrett that if he told anyone what

happened, he would kill him and his family. Id. Garrett attributed the beating he received

to the boy’s family’s outrage over the video of the boy being molested by Garrett.5 Id. at

35.

Garrett testified that, after the beating, he went to his cousin’s apartment in the same

apartment complex. Doc. 50-4 at 20, 35. From there, he called his aunt Katenia Miller,

and she came to Birmingham and picked him up and took him to her place in Eufaula. Id.

at 20. Garrett testified that, then, “the [M]arshals came. They got me in Eufaula and took

me to the medical center from my aunt’s house, took me to the medical center.” Id. at 36.

At Garrett’s criminal trial, Garrett’s standby counsel introduced a photograph of

Garrett with a battered and badly swollen face, and established through Garrett’s testimony

that the photograph (Doc. 50-6) was taken at the hospital in Eufaula on April 15, 2016.

Doc. 50-4 at 4–5. Standby counsel asked Garrett, “[W]hy were you in the Eufaula Hospital,

Eufaula Medical Center?” Doc. 50-4 at 5. Garrett testified, “I had been assaulted by some

guys in Valley Brook apartment.” Id. Standby counsel then asked: “One of those guys,

was that Anthony Jones who testified here the other day?” Id. Garrett answered, “Yes,

sir.” Id. The very same photograph introduced by Garrett at his criminal trial to show the

injuries he testified were caused by Jones and “some guys” in the Valley Brook Apartments

in Birmingham on April 14, 2016 (Doc. 50-6) is attached by Garrett to his amended

complaint in this Bivens action (Doc. 28 at 8) to demonstrate the injuries Garrett now says

were caused by Defendants when they arrested him on April 15, 2016. Earlier in his trial,

5 In his opening statement at the trial, Garrett told jurors that “[t]here was a time in the victim’s apartment,

which I’m going to show you evidence, where I was assaulted. I was brutally beaten, urinated on, ejaculated

on by a couple of the offenders[.]” Doc. 50-5 at 8.

when cross-examining Jones, Garrett himself sought to introduce the same photograph,

telling the court, “I just want to clarify that it is me in the picture, Your Honor, and that’s

what the witness [i.e., Jones] did.”6 Doc. 50-3 at 22. As indicated above, the photograph

was admitted in evidence during standby counsel’s direct examination of Garrett. Doc. 50-

4 at 4–5.

3. Birmingham Police Report

With their special report, Defendants produce a copy of a report by the Birmingham

Police Department created on April 14, 2016, detailing police officers’ response to a phone

call about the video of Garrett molesting a five-year-old boy at the Valley Brook

Apartments in Birmingham. Doc. 50-7. The police report states that, upon the officers’

arrival at the Valley Brook Apartments, a woman told the officers that her son was possibly

sexually assaulted and that the suspect, Garrett, may have been physically assaulted by

some men inside her apartment. Id. at 5. A responding officer “observed a large amount

of blood over the floor and walls of the apartment.” Id. Another responding officer spoke

with Garrett on the phone, and Garrett told the officer he was in “serious pain” but would

not disclose his location. Id.

4. Defendants’ Affidavits

Defendants submit affidavits in which they adamantly deny Garrett’s allegations of

excessive force. Docs. 50-9, 50-10. Defendant Williams states he entered the mobile home

in Eufaula on April 15, 2016, carrying a bullet-resistant shield, followed by Defendant

6 When Garrett sought to cross-examine Jones specifically about the beating administered in Birmingham,

Jones asserted his Fifth Amendment right to remain silent. Doc. 50-3 at 14.

Onofry and Task Force Investigator Jeremy Adkins. Doc. 50-10 at 4. Onofry and Adkins

entered the master bedroom and discovered Garrett hiding in the closet under a pile of

clothes curled around four rifles and shotguns. Doc. 50-9 at 4; Doc. 50-10 at 4. Onofry

and Adkins removed Garrett from the closet, placed him on the floor, and handcuffed him.

Doc. 50-9 at 4–5. They then removed him from the mobile home and placed him outside

on the driveway. Id. Onofry and Williams state that at no time did they or any other officer

strike, kick, or beat Garrett. Doc. 50-9 at 5; Doc. 50-10 at 4. Onofry specifically states:

I have read Garrett’s complaint where he alleges that I struck him multiple

times in the face with a hard metallic object. This allegation is completely

false. At no time during my arrest of Garrett did I, or any other officer, strike,

beat, or kick him. I did not even carry a flashlight, baton, or any other

metallic object when I arrested Garrett. The only force that I used on him

was the minimal force necessary to grab him and remove him from the closet

containing the guns and to pull his arm behind his back to handcuff him.

Doc. 50-9 at 5. Williams specifically states:

I have read Garrett’s complaint where he alleges that I kicked him in the

groin and stepped on his scrotum when he was handcuffed and lying face

down on the ground outside the mobile home. This allegation is completely

false. At no time during our arrest of Garrett did I, or any other officer, strike,

beat, or kick him. In addition. When we removed him from the mobile

home, we placed him in a sitting position in the driveway, not face down.

Doc. 50-10 at 5.

Both Onofry and Williams state they could see obvious, preexisting trauma to

Garrett’s face and head when he was arrested, and they immediately requested medical

assistance for him. Doc. 50-9 at 5; Doc. 50-10 at 5. At the scene, they took photographs

of Garrett’s injuries to document his condition. Those photographs are attached as exhibits

to Onofry’s affidavit. Doc. 50-9 at 14–15. Onofry states that, while they were waiting for

medical personnel to arrive, Garrett told him he had been beaten by “approximately four

men” in Birmingham the previous day over a misunderstanding about the sale of DVDs.

Id. at 5. Emergency medical personnel arrived at the scene and transported Garrett to the

Medical Center Barbour in Eufaula for evaluation and treatment. Doc. 50-9 at 5; Doc. 5-

10 at 4.

5. Katenia Miller’s Affidavit

With their special report, Defendants also produce an affidavit from Garrett’s aunt,

Katenia Miller. Doc. 50-12. Miller states that Garrett called her on April 14, 2016, and

asked her to pick him up in Birmingham. Id. at 2. She picked Garrett up at a Birmingham

gas station. Id. According to Miller, when she picked Garrett up, she saw he had been

badly injured. Id. His eyes were swollen shut, his lip was bleeding, and he was covered

in blood. Id. Garrett also complained of injuries to his chest, back, and head. Id. Miller

stated Garrett told her he had been jumped by some guys and their brothers over a dispute

about money. Id. Miller drove Garrett to her mobile home in Eufaula, cleaned him up,

and put band-aids on his cuts. Id. The following day, Defendants came to her residence

and arrested Garrett. Id. at 3. Miller avers:

I did not see any officer strike or beat Garrett during his arrest. I saw him

handcuffed in the driveway before the ambulance came and the injuries he

had were the same injuries he had the day before when I picked him up.

I understand that he is now claiming that the Marshals caused his injuries

when they arrested him. This is false.

Doc. 5-12 at 3.

IV. DISCUSSION

In claiming that Defendants used excessive force in effecting his arrest, Garrett

asserts that Defendants violated his Eighth Amendment right to be free from cruel and

unusual punishment. Doc. 28 at 2. However, where, as in Garrett’s case, an excessive force

claim arises from an arrest of a nonincarcerated citizen, it is most properly characterized as

one invoking the protections of the Fourth Amendment, which guarantees citizens the right

“to be secure in their persons . . . against unreasonable . . . seizures” of the person. Graham

v. Connor, 490 U.S. 386, 394 (1989). Thus, this court analyzes Garrett’s excessive force

claim under the Fourth Amendment.

“[C]laims that law enforcement officers have used excessive force . . . in the course

of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under

the Fourth Amendment and its ‘reasonableness’ standard[.]” Graham, 490 U.S. at 395.

“[T]he ‘reasonableness’ inquiry in an excessive force case is an objective one: the question

is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and

circumstances confronting them[.]” Id. at 397. The reasonableness test is not mechanically

applied, but instead depends on the facts and circumstances of each particular case. The

Eleventh Circuit’s analysis of this question includes the following Graham factors: (1) the

severity of the crime; (2) whether the suspect poses an immediate threat to the safety of the

officers or others; and (3) whether the suspect is actively resisting arrest or attempting to

evade arrest by flight. See, e.g., Brown v. City of Huntsville, Ala., 608 F.3d 724, 738 (11th

Cir. 2010) (citing the Graham factors). Other factors relevant to the resolution include “the

need for the application of force, the relationship between the need and the amount of force

used, and the extent of the injury inflicted.” Saunders v. Duke, 766 F.3d 1262, 1267 (11th

Cir. 2014) (citation omitted, alteration accepted).

While, as stated above in this Recommendation, the summary judgment standard

typically means drawing all factual inferences in a light most favorable to the nonmoving

party, Anderson, 477 U.S. at 255, where the nonmoving party’s version of the facts is

blatantly contradicted by the record, “so that no reasonable jury could believe it,” the court

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

judgment, Scott, 550 U.S. at 380. The undersigned finds this to be the case here regarding

the factual issue of whether the injuries about which Garrett complains resulted from

actions of the Defendants when effecting his arrest on April 15, 2016. In his allegations in

his amended complaint, Garrett asserts that Defendants severely beat him when effecting

his arrest, and he submits medical records and a photograph purporting to demonstrate the

injuries caused by Defendants. Defendants deny that they beat Garrett or that they caused

the injuries about which he complains. But besides Defendants’ denials, the record

contains evidentiary materials, in the form of Garrett’s testimony and his statements at his

criminal trial and the photograph introduced by Garrett at that trial, that have the effect of

so utterly discrediting Garrett’s factual assertions in his amended complaint that no

reasonable jury could believe the assertions in his amended complaint. This court will not

rely on the evident fictions in Garrett’s amended complaint where the record shows that

Garrett, in his criminal case, testified under oath that he was severely beaten by Anthony

Jones and two other men on April 14, 2016; testified that the beating by Jones and the two

other men caused the injuries that led to his admission and treatment at the hospital in

Eufaula on April 15, 2016; and introduced a photograph at his criminal trial to demonstrate

the injuries resulting from the beating by Jones and the two other men where he presents

the very same photograph with his amended complaint in this Bivens action purporting to

show the injuries he now says were caused by Defendants when they arrested him. With

this civil matter, Garrett is trying to falsely attribute to Defendants the injuries he suffered

at the hands of others in the April 14, 2016, beating in Birmingham.

Because the record utterly discredits Garrett’s allegations in his amended complaint

that his injuries were caused by Defendants, there can be no genuine dispute of material

fact on the question of whether Defendants’ actions caused Garrett’s injuries. Thus, as

Defendants correctly maintain, there is no genuine dispute as to any material fact that

would allow a reasonable factfinder to return a verdict in Garrett’s favor on his claim that

Defendants used excessive force—i.e., acted unreasonably under the Fourth Amendment—

in effecting his arrest.

Garrett’s allegation that Defendant Williams kicked him in the groin and stepped on

his scrotum in effecting his arrest is not necessarily encompassed in the injuries reflected

in the medical records and photograph that Garrett represents as showing the injuries

caused by Defendants. In making this conclusory allegation regarding Williams, Garrett

does not assert that he sustained any injuries or even experienced any pain as result of

Williams’s actions. Indeed, Garrett’s amended complaint and the medical records and the

photograph he attaches focus entirely on the serious injuries allegedly resulting from other

actions by the Defendants in effecting his arrest. Thus, as to these specific actions by

Williams, even if Garrett’s allegations are taken as true, Garrett establishes at most the use

of de minimis force by Williams, which cannot constitute a Fourth Amendment violation.

Nolin v. Isbell, 207 F.3d 1253, 1256 (11th Cir. 2000).

Under the de minimis principle, a minimal amount of force and injury will not

sustain a claim of excessive force. Nolin, 207 F.3d at 1258 (emphasis added). “The minor

nature of [an] injury [can] reflect[ ] that minimal force was used. . . .” Gold v. City of

Miami, 121 F.3d 1442, 1446 (11th Cir. 1997) (in the context of handcuffing); see also

Skrtich v. Thornton, 280 F.3d 1295, 1302 (11th Cir. 2002) (describing the type of injury as

a way of showing that force was not de minimis ). The Eleventh Circuit has found de

minimis force in the following circumstances: when an officer put a foot on the face of the

plaintiff, who was face down on the pavement, after he asked why he was being arrested,

Crosby v. Monroe County, 394 F.3d 1328, 1334–35 (11th Cir. 2004); when the plaintiff

was grabbed and shoved a few feet against a vehicle while pushing a knee against his back

and pushing his head into the van and searching the groin area in an uncomfortable way,

Nolin, 207 F.3d at 1258 n.4; when the plaintiff’s legs were kicked apart, requiring him to

raise his arms, and pulling his wallet from his pants, Jones v. City of Dothan, 121 F.3d

1456, 1460 (11th Cir. 1997); and when tight handcuffs were on the plaintiff’s wrists for

twenty minutes causing pain and skin abrasions, Gold, 121 F.3d at 1446. See also Bryan

v. Spillman, 217 F. App’x 882, 886 (11th Cir. 2007) (finding the “temporary pain” and “no

treatment” and “no lasting injury” of a rough search of the genitals, and pushing a defendant

against a car and holding his head down, to be de minimis ). Garrett’s conclusory allegation

regarding Williams’s specific actions establishes no more than the use of de minimis force

by Williams, which does not constitute a Fourth Amendment violation.

For the reasons set forth above, the court concludes that Garrett has not presented

sufficient evidence of excessive force under the Fourth Amendment to survive summary

judgment.

V. CONCLUSION

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that:

1. Defendants’ motion for summary judgment (Doc. 50) be GRANTED.

2. Judgment be GRANTED in favor of Defendants.

3. This case be DISMISSED with prejudice.

It is further

ORDERED that the parties shall file any objections to this Recommendation by

March 25, 2021. A party must specifically identify the factual findings and legal

conclusions in the Recommendation to which objection is made; frivolous, conclusive, or

general objections will not be considered. Failure to file written objections to the

Magistrate Judge’s findings and recommendations under 28 U.S.C. § 636(b)(1) shall bar a

party from a de novo determination by the District Court of legal and factual issues covered

in the Recommendation and waives the right of the party to challenge on appeal the District

Court’s order based on unobjected-to factual and legal conclusions accepted or adopted by

the District Court except upon grounds of plain error or manifest injustice. Nettles v.

Wainwright, 677 F.2d 404 (5th Cir. 1982); 11TH CIR. R. 3-1. See Stein v. Lanning

Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661

F.2d 1206 (11th Cir. 1981) (en banc).

DONE this 10th day of March, 2021.

/s/ Jerusha T. Adams

JERUSHA T. ADAMS

UNITED STATES MAGISTRATE JUDGE