COOPER v. CANNON

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JAMELL M. COOPER,

Plaintiff,

v. Case No. 4:23-cv-91-MW-MJF

A. CANNON,

Defendant.

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REPORT AND RECOMMENDATION

In this section 1983 action, Plaintiff Jamell M. Cooper, a prisoner

proceeding pro se, alleges that FDC Lieutenant A. Cannon used excessive

force when he attempted to pin Cooper to the wall and then pushed

Cannon after Cooper resisted. Cannon moves to dismiss the complaint

for failure to state a claim and qualified immunity. Doc. 34. Cooper

opposes the motion. Doc. 37. The undersigned recommends that Cannon’s

motion to dismiss be granted.

I. BACKGROUND

Cooper is an inmate of the Florida Department of Corrections. Doc.

22 at 7. Cooper’s third amended complaint alleges that on October 18,

2021, while Cooper was in his cell, an “Officer Greene” conducted a

security check. Id. Greene told Cooper that he smelled smoke. Id. Greene

left the area but soon returned with Lieutenant Cannon. Id.

Upon entering Cooper’s cell, Lieutenant Cannon pushed Cooper

against the wall, put his hand around Cooper’s neck, and said, “Fuck boy!

You want to smoke in my confinement!” Doc. 22 at 8. Cooper concedes

that he resisted Cannon by grabbing Cannon’s arm and attempting to

remove Cannon’s hand from Cooper’s neck. Id. After Cooper resisted him,

Cannon shoved Cooper. Cooper’s back struck the toilet. Id.

Cooper filed this civil action against Cannon to recover

compensatory and punitive damages. Id. at 12. Cannon moves to dismiss

this action for failure to state a claim on which relief can be granted and

because Cannon purportedly enjoys qualified immunity.

II. DISCUSSION

A. Eighth-Amendment Excessive-Force Standard

Under the Eighth Amendment, “[f]orce that is ‘applied in a good-faith

effort to maintain or restore discipline’ is acceptable, while force that is

inflicted ‘maliciously and sadistically to cause harm’ is prohibited.”

Williams v. Radford, 64 F.4th 1185, 1196 (11th Cir. 2023) (quoting

Wilkins v. Gaddy, 559 U.S. 34, 37 (2010)). “[U[nreasonable or

unnecessary force does not necessarily constitute excessive force for

purposes of the Eighth Amendment.” Williams, 64 F.4th at 1196

(emphasis added) (citing Whitley v. Albers, 475 U.S. 312, 319 (1986)).

A prisoner asserting an Eighth-Amendment excessive-force claim

must prove two elements—one subjective and the other objective.

Sconiers v. Lockhart, 946 F.3d 1256, 1265 (11th Cir. 2020). The prisoner

must establish that the prison official “acted with a sufficiently culpable

state of mind” and that the official’s conduct was “objectively harmful

enough to establish a constitutional violation.” Hudson v. McMillian, 503

U.S. 1, 8 (1992).

Courts use primarily five factors to evaluate the subjective element:

“[1] the need for application of force, [2] the relationship between that

need and the amount of force used, [3] the threat ‘reasonably perceived

by the responsible officials,’ . . . [4] ‘any efforts made to temper the

severity of a forceful response,’” and “[5] [t]he absence of serious injury.”

Hudson, 503 U.S. at 7 (quoting Whitley, 475 U.S. at 321). This evaluation

“give[s] a wide range of deference to prison officials acting to preserve

discipline and security, including when considering decisions made at the

scene of a disturbance.” Fennell v. Gilstrap, 559 F.3d 1212, 1217 (11th

Cir. 2009) (quotation marks omitted).

Under the objective element, the use of force must be “harmful

enough” or “sufficiently serious.” DeJesus v. Lewis, 14 F.4th 1182, 1195

(11th Cir. 2021). “Not every malevolent touch by a prison guard gives rise

to a federal cause of action.” Wilkins, 559 U.S. at 37.

B. Cooper Fails to State an Eighth-Amendment Claim

Cooper claims that Cannon used excessive force when Cannon: (1)

pinned Cooper against the wall by the neck and (2) pushed Cooper away

(toward the toilet).

1. Cooper’s Allegations Fail to Satisfy the Subjective

Element of an Eighth-Amendment Claim

Cooper’s allegations fail to raise a reasonable inference that

Cannon’s force—gauged under the Hudson/Whitley factors—was applied

“maliciously and sadistically for the very purpose of causing harm,” as

opposed to “in a good-faith effort to maintain or restore discipline.”

Wilkins, 559 U.S. at 37; Hudson, 503 U.S. 7–8; Whitley, 475 U.S. at 320–

21.

First, Cannon’s belief that the smoke was emanating from Cooper’s

cell made use of minimal force “necessary.” Cooper concedes that (1)

Greene believed the smoke smell was emanating from Cooper’s cell, and

(2) Cannon came to Cooper’s cell based on Greene’s report that Cooper’s

cell smelled of smoke. Cannon’s alleged statement to Cooper—“You want

to smoke in my confinement”—confirms Cannon entered Cooper’s cell to

address the smell of smoke and once in Cooper’s cell, pinned Cooper to

the wall and reprimanded him. The use of an appropriate degree of force

was justified to accomplish the legitimate penological objective of

determining the origin of the smoke and deterring the improper smoking

of unauthorized substances in prisons. See, e.g., Lawn v. Sec’y, Fla. Dep’t

of Corr., No. 21-10819, 2023 WL 2292263, at *3 (11th Cir. Mar. 1, 2023)

(the need for the use of force—jumping on, restraining and handcuffing

inmate—was established by officers’ honest but mistaken belief that

inmate was high on drugs); see also Fla. Admin. Code r. 33-601-314(9-27)

(prohibiting the use of unauthorized drugs).

Furthermore, Cooper’s resistance of Cannon—by grabbing

Cannon’s arm and attempting to remove it from Cooper’s body—justified

Cannon’s use of force insofar as Cannon pushed Cooper. Cannon was

justified in pushing Cooper both for Cannon’s protection and to restore

discipline. See, e.g., Sanks v. Williams, 402 F. App’x 409, 412 (11th Cir.

2010) (officer’s use of limited force on prisoner who was acting

aggressively was justified to subdue prisoner and regain control of

situation).

Second, the need for force was proportional to the force Cannon

used. Pinning Cooper to the wall in response to a report that he was

smoking in his cell was a limited, measured show of force to restore and

maintain discipline. Similarly, shoving Cooper was a measured response

to Cooper grabbing Cannon’s arm.

As to the remaining Whitley factors, Cannon ceased all force after

Cooper fell and there no longer was a need for force. Although Cooper

sustained a back injury when he hit the toilet, there is no indication that

Cannon intended to cause such injury or that the push was an excessive

use of force. See Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007)

(prison guard’s open-handed shove of unruly inmate was not excessive

even though it resulted in inmate’s falling and breaking his hip).

In short, construing Cooper’s allegations in the light most favorable

to him, they raise only a “mere dispute over the reasonableness of the

particular use of force” and do not support a reasonable inference that

Cannon applied force “maliciously and sadistically for the very purpose

of causing harm.” Whitley, 475 U.S. at 320–21.

2. Cooper’s Allegations Fail to Satisfy the Objective

Element of an Eighth Amendment Claim

Cooper failed to state a claim upon which relief can be granted in

yet a second respect: Cooper’s allegations fail to satisfy the objective

element of an Eighth-Amendment claim. Cannon’s act of pinning Cooper

to the wall by the neck and pushing Cooper away in response to Cooper

grabbing Cannon’s arm was an objectively de minimis use of force that

was “not of a sort repugnant to the conscience of mankind.” See Hudson,

503 U.S. at 10. Rather, it was similar to the “push or shove” referenced

in Wilkins, which “almost certainly fails to state a valid excessive force

claim.” Wilkins, 559 U.S. at 38 (quotation marks omitted); see also Smith

v. Sec’y, Dep’t of Corr., 524 F. App’x 511, 513–14 (11th Cir. 2013) (prison

guard’s twisting handcuffed inmate’s arms upward while pressing him

against the wall in an “unprovoked attack” was a de minimis use of force

that did not violate the Eighth Amendment).

C. Cannon Is Entitled to Qualified Immunity.

Even if Cooper had stated an excessive-force claim, Cannon would

be entitled to qualified immunity.

1. Qualified Immunity Standard

Qualified immunity provides “complete protection for government

officials sued in their individual capacities as long as their conduct

violates no clearly established statutory or constitutional rights of which

a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). To receive qualified immunity, the public official “must

first prove that he was acting within the scope of his discretionary

authority when the allegedly wrongful acts occurred.” Sebastian v. Ortiz,

918 F.3d 1301, 1307 (11th Cir. 2019). At that point, the burden shifts to

the plaintiff to allege that the defendant violated a constitutional right

that was clearly established at the time of the alleged violation. Whittier

v. Kobayashi, 581 F.3d 1304, 1308 (11th Cir. 2009).

2. Failure to Allege an Eighth-Amendment Violation

As discussed above, Cannon’s alleged conduct did not violate the

Eighth Amendment. For this reason alone, Cannon is entitled to qualified

immunity.

3. Failure to Demonstrate Clear Establishment

Even if Cooper’s third amended complaint plausibly alleged a

violation of the Eighth Amendment, Cannon still is entitled to qualified

immunity because the law did not place the constitutionality of Cannon’s

conduct “beyond debate.” District of Columbia v. Wesby, 583 U.S. 48, 63

(2018).

To be clearly established, “the contours of the right must be

sufficiently clear that a reasonable official would understand that what

he is doing violates that right.” Corbitt v. Vickers, 929 F.3d 1304, 1311

(11th Cir. 2019) (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)). “This is because officials are not obligated to be creative or

imaginative in drawing analogies from previously decided cases, and an

official’s awareness of the existence of an abstract right does not equate

to knowledge that his conduct infringes the right.” Corbitt, 929 F.3d at

1311–12 (internal quotation marks and citation omitted).

“This is not to say that an official action is protected by qualified

immunity unless the very action in question has previously been held

unlawful, but it is to say that in the light of the pre-existing law the

unlawfulness must be apparent.” Anderson, 483 U.S. at 640. “[T]he

salient question is whether the state of the law gave the defendant[] fair

warning that [his] alleged conduct was unconstitutional.” Corbitt, 929

F.3d at 1312 (internal quotation marks and citation omitted).

There are three independent ways that “a plaintiff can show that

the state of the law gives officials fair warning of a clearly established

right.” Id. First, the plaintiff could “show that a materially similar case

has already been decided.” Id. (quoting Mercado v. City of Orlando, 407

F.3d 1152, 1159 (11th Cir. 2005)). “This category consists of cases where

judicial precedents are tied to particularized facts.” Loftus v. Clark-

Moore, 690 F.3d 1200, 1204 (11th Cir. 2012).

Second, the plaintiff could “show that a broader, clearly established

principle should control the novel facts” of a particular situation.

Mercado, 407 F.3d at 1159. “The rule’s contours must be so well defined

that it is clear to a reasonable officer that his conduct was unlawful in

the situation he confronted.” Wesby, 583 U.S. at 63 (internal quotation

marks and citation omitted). “This requires a high degree of specificity.”

Id. at 63 (internal quotation marks and citation omitted). “A rule is too

general if the unlawfulness of the officer’s conduct does not follow

immediately from the conclusion that the rule was firmly established.”

Id. at 64 (internal quotation marks and citation omitted).

Third, the plaintiff could show that his case “fits within the

exception of conduct which so obviously violates [the] constitution that

prior case law is unnecessary.” Mercado, 407 F.3d at 1159; see also Hope

v. Pelzer, 536 U.S. 730, 738 (2002) (noting in a case where the Eighth-

Amendment violation was “obvious,” that there need not be a materially

similar case for the right to be clearly established); Wesby, 583 U.S. at 64.

Cooper has not demonstrated that the state of the law clearly

established the unlawfulness of Cannon’s conduct. Cooper asserts that

H.C. by Hewett v. Jarrard, 786 F.2d 1080 (11th Cir. 1986) clearly

established that Cannon’s conduct violated the Eighth Amendment. See

Doc. 37 at 9–12. The Hewett case, however, is distinguishable on its facts.

In Hewett, a juvenile pretrial detainee giggled about another

detainee’s prank, and protested the superintendent’s placement of the

other detainee in isolation. The superintendent slammed the juvenile

against the wall, took him to an isolation cell, shoved him against the cell

wall, and shoved him again against a metal cot, injuring the juvenile’s

shoulder. Id. at 1082–83. The superintendent kept the juvenile in

isolation for seven days, and disallowed medical treatment for the first

three days. The Eleventh Circuit held that the superintendent’s force

constituted “punishment” in violation of the Fourteenth Amendment’s

due process clause because (1) the juvenile was merely a bystander who

had not participated in any rule violation or improper conduct; (2) the

juvenile had not threatened to harm any property, employees, or other

detainees; (3) the force was applied by an adult against a juvenile; and

(4) the superintendent kept the juvenile in isolation for seven days and

purposely withheld medical treatment for three days.

The circumstances alleged here bear no resemblance to those in

Hewett. Cannon believed that Cooper had engaged in prohibited conduct

by smoking an unauthorized substance in his cell. Cannon pinned Cooper

against the wall and reprimanded him. Cannon shoved Cooper only after

Cooper, by his own account, “resist[ed] against [Cannon’s] grip around

his kneck [sic] by grabbing his arm attempting to remove it.” Doc. 22 ¶

10.

Because Cooper has not demonstrated that Cannon’s alleged

conduct clearly was unconstitutional, Cannon is entitled to qualified

immunity.

III. CONCLUSION

For the reasons set forth above, the undersigned respectfully

RECOMMENDS that the District Court:

1. GRANT Defendant Cannon’s motion to dismiss this action;

and

2. DIRECT the clerk to close this case.

At Pensacola, Florida, this 21st day of October 2024.

/s/ Michael J. Frank

Michael J. Frank

United States Magistrate Judge

NOTICE TO THE PARTIES

The District Court referred this case to the

undersigned to address preliminary matters and to

make recommendations regarding dispositive matters.

See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b); Fed.

R. Civ. P. 72(b). Objections to these proposed findings

and recommendations must be filed within fourteen

(14) days of the date of the report and recommendation.

Any different deadline that may appear on the

electronic docket is for the court’s internal use only

and does not control. An objecting party must serve a

copy of the objections on all other parties. A party who

fails to object to the magistrate judge’s findings or

recommendations contained in a report and

recommendation waives the right to challenge on

appeal the district court’s order based on unobjected-

to factual and legal conclusions. See 11th Cir. Rule 3-1;

28 U.S.C. § 636.