Opinion
Civil Action 97-01104-RV-L
January 20, 2001
REPORT AND RECOMMENDATION
Plaintiff, an Alabama prison inmate proceeding pro se and in forma pauperis, filed a complaint under 42 U.S.C. § 1983 alleging that defendant, Correctional Officer Alex Thames used excessive force against him in violation of his Eighth Amendment rights and that Officer Thames "conspired to provoke" plaintiff to incriminate himself so that plaintiff would be put in solitary confinement. The plaintiff also complains that the prison, Fountain Correctional Facility, has an unlawful policy of retaliating against inmates who file complaints. Plaintiff demands $500,000.00 and all costs and fees (Doc. 1, Page 7-8). This action was referred to the undersigned Magistrate Judge on January 5, 2000, pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 72.2(c)(4), and is now before the Court on defendant's motion for summary judgment (Doc. 12).
Defendant's filed a special report (Doc. 11), answer (Doc. 13) and supplemental special report (Doc. 15) which the Court converted into a motion for summary judgment on July 20, 2000 (Doc. 23). Plaintiff was given notice that the motion for summary judgment would be taken under submission, was advised of the pertinent summary judgment law and of the consequences of a summary judgment motion, and was provided an opportunity to respond to the summary judgment motion. In response, plaintiff filed a document styled "Plaintiff's Motion in Opposition to the Defendant's Special Report and Plaintiff's Objection to the Court's Order Converting the Special Report to a Motion for Summary Judgment." (Doc. 24.) The Motion in Opposition contains a certificate of service, but is not notarized nor sworn under penalty of perjury for the truthfulness of the statements he makes therein. Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir.), cert. denied, 475 U.S. 1107, 106 S.Ct. 1513, 89 L.Ed.2d 912 (1986); Dickinson v. Wainwright, 626 F.2d 1184, 1185 (5th Cir. 1980). Therefore, plaintiff's unsworn statements in his motion do not constitute evidence that the Court may consider on summary judgment and that could be deemed to create a genuine issue of material fact.
Plaintiff's complaint was signed under penalty of perjury and the complaint prepared for state court but filed as an attachment to the federal complaint was sworn to and notarized. Therefore, the pleadings are treated by the Court as affidavits. Dickinson v. Wainwright, 626 F.2d 1184, 1185 (5th Cir. 1980); Murrell v. Bennett, 615 F.2d 306, 310 n. 5 (5th Cir. 1980); Vinson v. Fulton County Sheriff's Dept., 678 F. Supp. 275, 278-79 (N.D. Ga. 1988). However, a verified complaint's allegations are subject to the scrutiny that an affidavit receives from a court when a court is considering a summary judgment motion, i.e., conclusory statements of ultimate facts, conclusions of law, and statements unsupported by personal knowledge are not considered competent evidence to defeat summary judgment. See Murrell, 615 F.2d at 310; See also Bennett v. Parker, 898 F.2d 1530, 1532 n. 1 (11th Cir. 1990).
Upon consideration, the undersigned recommends that the defendant's motion for summary judgment be GRANTED as to plaintiff's claim of excessive force. Further, it is recommended that plaintiff's remaining claims be dismissed for failure to state a claim upon which relief can be granted.
I. Complaint
Plaintiff first alleges that the defendant Correctional Officer Alex Thames used excessive force against him in violation of the Eighth Amendment. Specifically, in his sworn complaint, the plaintiff alleges the following: On July 29, 1997, he was checked out to the work farm and after reaching his assigned area he refused to start work after being told to do so. When the defendant saw that plaintiff was not going to work, he told plaintiff to step away from the other inmates, which he did. Defendant then used the walkie-talkie and called another officer to take plaintiff to the "hitching rail" because he would not work. After he stood for a while, plaintiff dropped his hoe. Defendant cocked his shotgun and pointed it at plaintiff and told him to pick up the hoe. Plaintiff did not move. Defendant then told the plaintiff that he was going to make him pick up the hoe. Defendant then gave his shotgun and pistol to the other officer and then went to plaintiff, grabbed him, hit him in the side, and pushed him while telling him to pick up the hoe. The other officer stood and watched. The grabbing, hitting and pushing went on for about ten minutes before another officer arrived and pulled defendant off plaintiff. Plaintiff was taken to the infirmary, where a body chart was made. Plaintiff was then handcuffed to the hitching rail. (Doc. 1).
The Court assumes that plaintiff has sued defendant in his individual capacity, since a claim against defendant in his official capacity for the relief sought would be barred by the Eleventh Amendment. Brandon v. Holt, 469 U.S. 464, 471, 105 S.Ct. 873, 878 (1985); Harbert International, Inc. v. James, 157 F.3d 1271, 1277 (11th Cir. 1998).
Plaintiff further claims that unidentified Fountain officials have an unlawful policy of retaliation, i.e. writing a disciplinary report against inmates who attempt to file complaints against the staff. (Doc. 1, Attachment at p. 3). Plaintiff fails to give anymore detail regarding these allegations.
The plaintiff also summarily alleges that Officer Thames conspired to have the plaintiff "incriminate" himself so that he would be put in solitary confinement. Again, plaintiff fails to give any detail regarding this allegation.
II. Defendant's Response
Defendant argues that he did not use excessive force against the plaintiff as is seen by the fact that the plaintiff received no more than a de minimis injury. (Doc. 11). Specifically, the defendant stated in his affidavit as follows: On July 29, 1997, Thames was assigned to the six dorm work squad which is composed of inmates with behavioral problems (such as exhibitionism and public masturbation). While the defendant was overseeing this work squad, plaintiff faced the guard tower and exposed his penis. Defendant ordered plaintiff to put his penis back in his pants and start to work and the plaintiff complied. Then, approximately five minutes later, plaintiff stated he was not going to work. Defendant notified Purvis (another correctional officer) by radio and stated that plaintiff should be removed from the squad. Plaintiff became belligerent and threw his hoe across the field. Defendant ordered plaintiff to retrieve the hoe and plaintiff refused. When Purvis arrived, defendant gave his shot gun and pistol to Purvis, approached plaintiff, and again ordered him to retrieve the hoe. Plaintiff refused to comply and defendant pushed plaintiff toward the hoe. Plaintiff still refused to comply. Sergeant David Martinie and Sergeant DeAngelo Burrell observed the incident and assisted defendant. Plaintiff was then restrained, transported to the health care unit, examined, and placed on the restraining bar. (Doc. 11).
Defendant states that he only used the force necessary to insure plaintiff's compliance with orders given, that he did not violate plaintiff's rights and that all actions were in the normal course and scope of defendant's duties as a correctional officer. (Doc. 11).
In further support of his motion for summary judgment the defendant submitted the affidavits of the other officers present when the July 29, 1997, incident occurred. The affidavit of Officer Purvis states that on the morning of July 29, 1997, defendant notified Purvis that he "had an inmate who refused to work and needed to be placed on the restraining bar." Purvis arrived in about five minutes and defendant told him that plaintiff had "thrown his hoe into the field and stated that he was not going to work." Defendant gave Purvis his weapons and told Purvis that he was going to make plaintiff get his hoe. Purvis advised defendant to prepare a disciplinary report. Instead, defendant stated that plaintiff was "going to pick up his hoe and bring it with him", at which point defendant walked toward plaintiff and plaintiff pulled off his tee shirt and threw it on the ground. Defendant confronted plaintiff and pushed his shoulder. Defendant pushed plaintiff approximately ten feet toward the squad. Purvis radioed for Sergean. White to come to the location. Purvis observed the defendant and plaintiff continuing to push and shove, however, Purvis did not see any blows thrown by either man. Plaintiff was subequently subdued by another officer (Martinie) who then handcuffed him from behind.
The affidavit of Martinie and Burrell are consistent with Purvis' affidavit and state that defendant and plaintiff "appeared to be pushing and pulling on one another" and that they did not see either man "throw any punches." Martinie also noted that he saw plaintiff throw defendant to the ground. He then saw defendant arise and resume pushing and shoving with plaintiff. Martinie grabbed plaintiff by his right wrist and instructed defendant to let him go. Martinie maintained control of plaintiff without resistance and escorted him to Sergeant William White's (White) truck for transport. (Doc. 15, Attachment).
The examination notes prepared by the Fountain Health Care Unit nurse on July 29, 1997, state that plaintiff received a small scratch to the left side of his chest and was instructed to "wash the area with soap and water." (Doc. 11, Attachment).
The defendant did not respond to the plaintiff's claims of retaliation or conspiracy, other than to summarily state that the plaintiff failed to state a claim.
III. Findings of Fact and Conclusions of Law
A. Facts
The following facts are not in dispute. Defendant ordered plaintiff to begin work. Plaintiff refused, told defendant he was not going to work, and threw his floe to the ground. Defendant told plaintiff to pick up his hoe and plaintiff refused. Defendant radioed for another officer to take plaintiff to the restraining bar. When the officer arrived, defendant gave his weapons to the officer, approached plaintiff and by pushing him toward the hoe, attempted to make plaintiff obey defendant's order to pick up the hoe. Plaintiff continued to refuse and pushed back. Plaintiff and defendant then began pushing, shoving and pulling on each other. The altercation was stopped by other correctional officers.
Plaintiff was taken to the health care unit, and a slight scratch on his left side was identified. Plaintiff makes no statement of specific injury to his person but rather summarily states that he was beaten badly by defendant.
B. Conclusions of Law
The defendant claims that he is entitled to qualified immunity. In Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 1697 (1999), the Supreme Court held:
A court evaluating a claim of qualified immunity "must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation." Conn v. Gabbert, 526 U.S. 286, [290], 119 S.Ct. 1292, 1295, [143] L.Ed. [399] (1999). This order of procedure is designed to "spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit." Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). Deciding the constitutional question before addressing the qualified immunity question also promotes clarity in the legal standards for official conduct, to the benefit of both the officers and the general public. See County of Sacramento v. Lewis, 523 U.S. 833, 840-842, n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).
Hence, a constitutional violation must be sufficiently established by plaintiff before the court must determine whether the constitutional right was clearly established. Therefore, the undersigned will first evaluate the pleadings to determine whether plaintiff has supported his claim with sufficient evidence of a constitutional violation whereas to avoid summary judgment.
For defendant to prevail on summary judgment, defendant must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A factual dispute is "`genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing [substantive] law." Id.; accord Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998-999 (11th Cir. 1992), cert. denied, 507 U.S. 911, 113 S.Ct. 1259 (1993). However, an issue is not genuine if it is unsupported by evidence, or if it is created by evidence that is "merely colorable" or is "not significantly probative." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505, 2511-12.
Since the moving party has the burden of showing the absence of a genuine issue as to any material fact, the Court must view the movant's evidence and all factual inferences arising from it in the light most favorable to the nonmoving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993); Tipton, 965 F.2d at 998-999.
Once the movant satisfies its initial burden under Rule 56(c), the nonmovant must "show the existence of a genuine issue as to a material fact." Fitzpatrick, 2 F.3d at 1116. "A mere `scintilla' of evidence supporting the [nonmoving] party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted). "[T]he nonmoving party may avail itself of all facts and justifiable inferences in the record taken as a whole." Tipton, 965 F.2d at 998 (citing United States v. Diebold, Inc. 369 U.S. 654, 655, 82 S.Ct. 993, 994 (1962)). "[T]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Tipton, 965 F.2d at 999 (quoting Anderson, 477 U.S. at 255).
Moreover, the non-movant bears "the burden of coming forward with sufficient evidence on each element that must be proved." Earley v. Champion Int'l Corp., 907 F.2d 1077, 1080 (11th Cir. 1990) (emphasis in original) (citation omitted). If "a party . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which [the] party will bear the burden of proof at trial[,]" Rule 56(c) mandates that summary judgment be entered against the nonmovant. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1980).
The plaintiff's primary claim is that defendant used excessive force against him. The "`unnecessary and wanton infliction of pain' . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment." Ingraham v. Wright, 430 U.S. 651, 670, 97 S.Ct. 1401, 1412 (1977) (citations omitted). An Eighth Amendment violation is established upon proof that plaintiff's injury was caused by the "unnecessary and wanton infliction of pain." Hudson v. McMillian, 503 U.S. 1, 5, 112 S.Ct. 995, 998 (1992). Such a claim includes both an objective and a subjective component. Plaintiff must establish that "the alleged wrongdoing was objectively `harmful enough' to establish a constitutional violation" and, subjectively, that defendant acted "with a sufficiently culpable state of mind." Sims v. Mashburn, 25 F.3d 980, 983 (11th Cir. 1994) (citing Hudson, 503 U.S. at 8, 112 S.Ct. at 999).
When the act of a prison official involves an effort to forestall a threat to security or restore the official's control, "the Eighth Amendment inquiry is `whether force was applied in a good faith effort to maintain or restore discipline or inflicted maliciously or sadistically for the very purpose of causing harm."' Sims, 25 F.3d at 984 (citation omitted; internal quotation omitted); Hudson, 503 U.S. at 7, 112 S.Ct. at 998; Whitley v. Albers, 475 U.S. 312, 320-321, 106 S.Ct. 1078, 1085 (1986).
In the objective analysis under Hudson, "only those deprivations denying `the minimal civilized measure of life's necessities' are sufficiently grave to form the basis of an Eighth Amendment violation."' Hudson, 503 U.S. at 9, 112 S.Ct. at 1000 (quoting Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324 (1991). The objective component of an excessive force claim "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, 503 U.S. at 9-10, 112 S.Ct. at 1000 (quoting Whitley, 475 U.S. at 327, 106 S.Ct. at 1088). The Hudson Court did not define " de minimis use of force" but suggested that the degree of injury received is at least relevant to determining whether more than de minimis force was used. See Hudson, 503 U.S. at 10, 112 S.Ct. 1000 (blows causing bruising, swelling, loosened teeth and a cracked dental plate do not constitute a de minimis use of force). However, the Court rejected the argument that "serious" or "significant" injury is required to satisfy the objective component. Hudson, 503 U.S. at 9, 112 5. Ct. 1000. Moreover, the Court rejected the concept that any arbitrary quantum of injury is an absolute requirement of an excessive force claim, apparently out of concern that certain forms of torture are capable of inflicting extreme pain without leaving any mark or tangible injury. See id. ("Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury.").
After Hudson, several courts concluded that, except perhaps in cases where substantial pain (as from torture) is alleged, more than de minimis force cannot be found unless more than de minimis injuries were received. See Norman v. Taylor, 25 F.3d 1259, 1263 n. 4 (4th Cir. 1994); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). Other appellate cases have implicitly followed similar reasoning.
The following injuries have been held by courts of appeal to be too minor to support an excessive force claim: A bruised shoulder from being shoved into a wall, Markiewicz v. Washington, 1999 WL 196596 (7th Cir. 1999); a sore, bruised ear lasting three days, Siglar v. Hightower, 112 F.3d 191 (5th Cir. 1997); transitory back and shoulder aches of limited duration, Williams v. Dehay, 1996 WL 128422 (4th Cir. 1996); a 1.5 inch scratch on the back of the hand from handcuffs, Schoka v. Swinney, 1995 WL 251126 (9th Cir. 1995); a welt from a slap on the face, Riley v. Dotson, 115 F.3d 1159 (4th Cir. 1997); daily headaches (without treatment) from being hit with a water bucket, Lunsford v. Bennett, 17 F.3d 1574 (7th Cir. 1994); a sore and swollen thumb from being hit with keys, Norman v. Taylor, 25 F.3d 1259 (4th Cir. 1994).
But see the following cases where injuries have been held to be sufficient to support excessive force claims: Cuts scrapes and contusions to the face, head and body from a group beating, Gomez v. Chandler, 163 F.3d 921 (5th Cir. 1999); a broken finger Escobar v. Zavaras, 1998 WL 314303 (10th Cir. 1998); cuts, bruises, a swollen hand and a possible broken finger, Mitchell v. Maynard, 80 F.3d 1433 (10th Cir. 1996); permanent scarring and numbness from handcuffs, Davidson v. Flynn, 32 F.3d 27 (2d Cir. 1994).
IV. Discussion
A. Excessive Force
This Court is required to construe the evidence in the light most favorable to the plaintiff. Therefore the undersigned will assume that the plaintiff was shoved, pushed and hit by the defendant after the plaintiff refused to comply with an order from the defendant. The plaintiff states that he was hurt badly as a result of the incident; however he has not described his injuries, nor has he presented any evidence to substantiate this allegation. The records presented by defendant show that plaintiff suffered only a slight scratch to his left side (Doc. 11, Attachment). Furthermore, the affidavits of all the officers present at the altercation indicate that the plaintiff was only pushed by the defendant. Therefore, the plaintiff has failed to establish with more than a mere scintilla of evidence that his injuries were more than de minimis.
However, the injury received by plaintiff is only one factor for consideration. While the absence of serious injury is relevant to the Eighth Amendment inquiry, it does not end it. Hudson, 503 U.S. at 7, 112 S.Ct. 999. The court must also consider the need for the application of force and the amount exerted, the threat reasonably perceived by the official and any efforts to temper the severity of the forceful response. Id.
In regard to the need for the force, plaintiff admits that he refused an easily-accomplished and legitimate order from defendant, i.e. first to get back to work, then to pick up his hoe. Plaintiff further admits that the force used was an attempt to make the plaintiff to pick up his hoe. While the continued pushing and shoving by the defendant may have been futile and unnecessary, it was not constitutionally excessive. Force does not violate the constitution merely because it is unreasonable or unnecessary. "The infliction of pain in the course of a prison security measure does not amount to cruel and unusual punishment simply because it may appear in retrospect that the degree of force authorized or applied for security purpose was unreasonable, and hence unnecessary in the strict sense." Whitley 475 U.S. at 319, 106 S.Ct. 1084. Moreover, this court should not supplant the judgment of prison officials who make decisions of institutional security with its own. "`Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner s constitutional rights.'" Hudson, 503 U.S. at 9, 112 S.Ct. 1000 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d. Cir. 1973)).
Next, the court considers the threat reasonably perceived by the correctional officer. Defendant was assigned to control a work squad consisting of inmates who had previously been disciplinary problems, albeit for exhibitionism and public masturbation. Furthermore, it is not disputed that the plaintiff was defying the legitimate orders of the officer, i.e. to continue to work and then to pick up the hoe. While the plaintiff was not necessarily a physical threat at the time the defendant pushed him, he certainly was a threat to the officer's ability to maintain control and security over the work squad. In Bennett v. Parker, 898 F.2d 1530 (11th Cir. 1990), the Eleventh Circuit stated that "the management by a few guards of large numbers of prisoners, not usually the most gentle and tractable of men and women, may require and justify the occasional use of a degree of intentional force." Bennett, 898 F.2d at 1533.
Last, the court considers whether efforts were made to temper the severity of a forceful response. The plaintiff stated in his complaint that the defendant initially attempted to force him to pick up his hoe by pointing a gun at him. Plaintiff still refused. According to plaintiff, at this point the defendant gave his gun to another officer and attempted to make the plaintiff pick up the hoe by pushing and hitting him. As stated previously, the altercation did not result in injury to plaintiff except for the slight scratch on his left side. Thus, it does not appear that the physical force that was exerted was severe. However, even according to the plaintiff, the defendant did make an effort to make the plaintiff comply with his order prior to using any physical force.
Therefore, considering the objective factors in Hudson, the plaintiff has failed to establish that the defendant's behavior denied the plaintiff "the minimal civilized measure of life's necessities'". The evidence of defendant's physical efforts to force the plaintiff to comply with a legitimate order, simply does not constitute evidence of cruel and unusual punishment in violation of the Eighth Amendment.
Moreover, the plaintiff has also failed to establish subjectively that the force used was inflicted maliciously or sadistically for the very purpose of causing harm. "Courts must determine whether the evidence goes beyond a mere dispute over the reasonableness of a particular use of force or the existence of arguably superior alternatives. Unless it appears that the evidence, viewed in the light most favorable to the plaintiff, will support a reliable inference of wantonness in the infliction of pain under the standard we have described, the case should not go to the jury." Whitley, 475 U.S. at 322, 106 S.Ct. 1085. See also, Campbell v. Sikes, 169 F.3d 1353, 1375 (11th Cir. 1999). The plaintiff has failed to carry his burden of presenting sufficient evidence that the defendant acted with malice and sadistic intent to cause plaintiff harm. Rather, the evidence shows perhaps an episode of unnecessary pushing and shoving. There is no evidence that the defendant acted with any sadistic intent. The evidence shows, and the plaintiff states, that the defendant's intent was to make him comply with an order to pick up his hoe. The evidence of record simply does not support a reliable inference of wantonness on the part of the defendant.
In summary, considering the evidence in the light most favorable to the plaintiff, the plaintiff has failed to establish a violation of his constitutional rights on the claim of excessive force and thus defendant is entitled to summary judgment. If a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial," Rule 56(c) mandates that summary judgment be entered against the nonmovant. CelotexCorp, 477 U.S. at 322, 106 S.Ct. 2548. Moreover, no material issues can be in dispute where plaintiff's evidence fails to establish a constitutional violation. Bennett, 898 F.2d at 1534.
B. CLAIMS OF CONSPIRACY AND RETALIATION
Plaintiff summarily claims that Officer Thames "conspired to provoke" plaintiff to "incriminate" himself so that plaintiff would be put in solitary confinement. Title 28 U.S.C. § 1915 (e)(2)(ii) provides for the dismissal of an action if it fails to state a claim upon which relief may be granted. An action fails to state a claim "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232 (1984). Plaintiff's conclusory, vague and incomprehensible allegation that the defendant was conspiring against him fails to state a claim for which relief could be granted. See Fullman v. Graddick, 739 F.2d 553, 556-557 (11th Cir. 1984) (finding that vague and conclusory conspiracy allegations are subject to dismissal).
The plaintiff also complains that the prison facility, Fountain Correctional Facility, has an unlawful policy of retaliating against inmates who file complaints. While it is not clear from plaintiff's complaint, the alleged retaliation is presumably that discipline is taken against inmates who attempt to complain. A disciplinary act in retaliation against a prisoner who has exercised a constitutionally protected right is actionable under § 1983. See., e.g. Wildberger v. Bracknell, 869 F.2d 1467, 1468 (11th Cir. 1989). However, "in pleading a § 1983 action in the Eleventh Circuit . . . some factual detail is necessary; conclusory allegations are insufficient." McCain v. Scott, 9 F. Supp.2d 1365, 1369 (N.D. Ga. 1998). The relevant inquiry is whether the plaintiff "adequately asserted that disciplinary actions were taken against him in retaliation for his exercise of a constitutional right." Id. In the present case, the plaintiff has failed to allege any facts which would show that he was the victim of this alleged retaliation policy. The plaintiff has not alleged any disciplinary actions that were taken against him after he exercised a constitutional right. In sum, the plaintiff totally fails to allege any facts or claims upon which relief could be granted. Accordingly, these claims are due to be dismissed.
IV. RECOMMENDATION
For the above-stated reasons, the undersigned Magistrate Judge RECOMMENDS that the motion for summary judgment as to the claim of excessive force be GRANTED and that all claims including the claims of retaliation and conspiracy be DISMISSED with prejudice.
The attached sheet contains important information regarding objections to the Report and Recommendation entered this date.