MEMORANDUM OPINION

ROBERT B. PROPST, Senior District Judge.

This cause comes to be heard on the Motion for Summary Judgment filed by the defendants on May 25, 2012, and orally argued by the parties at a recorded hearing on July 26, 2012.1

While Shakespeare suggested in The Merchant of Venice that a good deed "`shines' in a naughty world," others have said that "no good deed goes unpunished."2 Sheriff Amerson's good deed was to volunteer to conduct a community service program (not one of his prescribed duties) attempting to steer juveniles away from disorderly conduct and more serious conflicts with law enforcement, and to aid public schools in this pursuit. The plaintiff was voluntarily enrolled by his mother in a program Amerson created called "Success Academy" or "Suspended Student Program." The program was distinguished, in writing, from so-called "scared straight" programs.

After some initial legal jousting, the remaining issue in this case has become whether the plaintiff suffered from more than de minimis force by defendant Amerson in violation of the Fourth Amendment. In other words, did Amerson apply excessive force to the plaintiff? What happened with regard to the only remaining issue in this case is substantially established by a video of the interaction between Amerson and the plaintiff,3 the depositions of plaintiff and his mother, and documents maintained by the Coosa Valley Youth Services and Juvenile Detention of the State of Alabama.

Standard of Review

Under Rule 56(c)(2) of the Federal Rules of Civil Procedure, summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. The burden then shifts to the nonmoving party, who is required to "go beyond the pleadings" to establish that there is a "genuine issue for trial." Id. at 324, 106 S.Ct. 2548 (citation and internal quotation marks omitted).

A dispute about a material fact 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, 91 L.Ed.2d 202 (1986). The court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); see also Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (all justifiable inferences must be drawn in the non-moving party's favor). "On summary judgment, `[i]f there is conflict between the plaintiff's and the defendant's allegations or in the evidence, the plaintiff's evidence is to be believed and all reasonable inferences must be drawn in his favor.'" Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1164 (11th Cir.2003) (quoting Molina v. Merritt & Furman Ins. Agency, 207 F.3d 1351, 1356 (11th Cir. 2000)). However, "mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion." Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir.1989)). Moreover, "[a] mere `scintilla' of evidence supporting the opposing 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) (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505).

Qualified Immunity

Amerson argues that there is no evidence of a Constitutional violation because, among other reasons, the alleged force was de minimis and not excessive. He argues that, in any event, he is entitled to a dismissal of claim(s) based on qualified immunity.

"Qualified immunity operates `to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful.'" Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (citing Saucier v. Katz, 533 U.S. 194, 206, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). Therefore, "[g]overnment officials performing discretionary functions are entitled to qualified immunity `insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Lancaster v. Monroe County, 116 F.3d 1419, 1424 (11th Cir.1997) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Indeed, officers are entitled to qualified immunity unless the "supposedly wrongful act was already established to such a high degree that every objectively reasonable official standing in the defendant's place would be on notice that what the defendant official was doing would be clearly unlawful given the circumstances." Bozeman v. Orum, 422 F.3d 1265, 1273 (11th Cir.2005) (internal quotation marks and citations omitted). In other words, qualified immunity "gives government officials breathing room to make reasonable but mistaken judgments." Messerschmidt v. Millender, ___ U.S. ___, 132 S.Ct. 1235, 1244-45, 182 L.Ed.2d 47 (2012). Therefore, "`[b]ecause qualified immunity shields government actors in all but exceptional cases, courts should think long and hard before stripping defendants of immunity.'" GJR Investments, Inc. v. County of Escambia, 132 F.3d 1359, 1366 (11th Cir.1998)(quoting Lassiter v. Alabama A & M Univ. Bd. of Trs., 28 F.3d 1146, 1149 (11th Cir.1994)).

To receive qualified immunity from suit, "the government official must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred." Mathews v. Crosby, 480 F.3d 1265, 1269 (11th Cir.2007). The burden then shifts to the plaintiff to demonstrate that qualified immunity is not appropriate by showing that (1) "the government official's conduct violated a Constitutional right" and (2) the Constitutional right was "clearly established" by preexisting federal law at the time of the action. Id. (citing Saucier, 533 U.S. at 201, 121 S.Ct. 2151). A court need no longer follow the rigid two-prong approach introduced in Saucier. The Supreme Court has provided that "judges of the district courts ... should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

"`Whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful action generally turns on the `objective legal reasonableness' of the action, assessed in light of the legal rules that were `clearly established' at the time it was taken.'" Messerschmidt, 132 S.Ct. at 1244-45 (quoting Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). In the Eleventh Circuit, "the law can be `clearly established* for qualified immunity purposes only by decisions of the U.S. Supreme Court, Eleventh Circuit Court of Appeals, or the highest court of the state where the case arose." Jenkins v. Talladega Bd. of Educ., 115 F.3d 821, 827 (11th Cir.1997) (en banc) (internal citations omitted). To be "clearly established," pre-existing law must provide "fair warning" to the defendant government official that his conduct was illegal. Messerschmidt, 132 S.Ct. at 1244-45. The Eleventh Circuit has held that "[w]hen an excessive force plaintiff shows that the official's conduct lies so obviously at the very core of what the Constitution prohibits that the unlawfulness of the conduct was readily apparent to the official, notwithstanding the lack of case law, the official is not entitled to the defense of qualified immunity." Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 926 (11th Cir.2000).

Excessive Force

The Supreme Court has provided that a plaintiff's excessive force claim is "properly analyzed under the Fourth Amendment's `objective reasonableness' standard." Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).4 The objective reasonableness standard requires the court to "carefully balance `the nature and quality of the intrusion on the individual's Fourth Amendment interests' against `the countervailing governmental interests at stake.'" Oliver v. Fiorino, 586 F.3d 898, 905 (11th Cir.2009) (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865). See also Terrell v. Smith, 668 F.3d 1244, 1250 (11th Cir.2012). The Eleventh Circuit has stated that "[i]n determining the reasonableness of the force applied, we look at the fact pattern from the perspective of a reasonable officer on the scene with knowledge of the attendant circumstances and facts, and balance the risk of bodily harm to the suspect against the gravity of the threat the officer sought to eliminate." Id. at 1251 (quoting McCullough v. Antolini, 559 F.3d 1201, 1206 (11th Cir.2009)). Courts must take into account the Supreme Court's statement that "`[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments about the amount of force that is necessary in a particular situation.'" Penley v. Eslinger, 605 F.3d 843, 850 (11th Cir.2010) (quoting Graham, 490 U.S. at 397, 109 S.Ct. 1865). The "reasonableness of the officer's belief as to the appropriate level of force should be judged from [the] on-scene perspective." Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

However, "the application of de minimis force, without more, will not support a claim for excessive force in violation of the Fourth Amendment." Durruthy v. Pastor, 351 F.3d 1080, 1094 (11th Cir.2003)(citing Nolin v. Isbell, 207 F.3d 1253, 1257(11th Cir.2000)). The Eleventh Circuit has considered de minimis force to include "where an officer grabbed the plaintiff from behind the shoulder and wrist, threw him against a van three or four feet away, kneed him in the back and pushed his head into the side of the van, searched his groin area in an uncomfortable manner, and handcuffed him." Id. (quoting Nolin, 207 F.3d at 1255). See also Jones v. City of Dothan, 121 F.3d 1456, 1460 (11th Cir.1997) (finding the level of force used to be only minor where officers pushed the plaintiff against a wall, kicked his legs apart, put his arms above his head, and removed his wallet from his pants pocket). The Supreme Court has recognized that "[n]ot every push or shove, even if it may seem unnecessary in [the] peace of a judge's chambers, violates the Fourth Amendment." Saucier, 533 U.S. at 209, 121 S.Ct. 2151.

At least one factor that has been considered by the court in determining the reasonableness of the level of force used against a plaintiff is whether the plaintiff was restrained at the time the force was used. See Durruthy, 351 F.3d at 1094 ("Notably, Durruthy had not been restrained at the time the force was applied, distinguishing the instant case from two cases on which the district court relied.").5 For example, Lee v. Ferraro, 284 F.3d 1188, 1191, 1198-99 (11th Cir.2002), the court denied qualified immunity, finding the level of force used against the plaintiff to be excessive where the plaintiff had already been handcuffed when officers slammed her into a car. Similarly, in Priester v. City of Riviera Beach, 208 F.3d 919, 927 (11th Cir.2000), the court found force to be excessive where an officer had released an attack dog on the plaintiff after the plaintiff had already been forced to lie on the ground and while the officer pointed his gun at the plaintiff's head.

In Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the Court stated:

Id. at 397, 109 S.Ct. 1865.

The Eleventh Circuit recently reiterated the objectivity requirement of the reasonableness analysis in the excessive force context in Garczynski v. Bradshaw, 573 F.3d 1158, 1166(11th Cir.2009) ("`the `reasonableness' inquiry in an excessive force case is an objective one ...'") (quoting Graham, 490 U.S. at 397, 109 S.Ct. 1865). The plaintiff cites an Eleventh Circuit case, Hadley v. Gutierrez, 526 F.3d 1324 (11th Cir.2008), for the proposition that in determining the reasonableness of force used, a court can consider whether the officer applied the force in a "malicious" and "sadistic" manner or else in "good faith." See Hadley, 526 F.3d at 1324 ("Our cases identify several factors instructive in determining whether an officer's use of force was objectively reasonable, including ... (4) whether the force was applied in good faith or maliciously and sadistically.") (quoting Slicker v. Jackson, 215 F.3d 1225, 1233 (11th Cir.2000). However, inquiry into the officer's subjective intentions behind using force was expressly foreclosed in Graham, 490 U.S. at 397, 109 S.Ct. 1865. The Hadley and Slicker opinions directly rely on a quote from the Eleventh Circuit's decision in Leslie v. Ingram, which came out three years before the Supreme Court's 1986 decision in Graham. The Leslie court stated that one of the factors a court could consider in "determining whether an officer's use of force was objectively reasonable" was "whether the force was applied in good faith or maliciously and sadistically." 786 F.2d 1533, 1536 (11th Cir.1986). The Graham decision directly overruled the use of this factor. 490 U.S. at 397, 109 S.Ct. 1865 ("An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional."). See also Graham, 490 U.S. at 397, 109 S.Ct. 1865 ("We do not agree with the Court of Appeals' suggestion,") see 827 F.2d 945, 948 (4th Cir.1987), that the "malicious and sadistic" inquiry is merely another way of describing conduct that is objectively unreasonable under the circumstances ... the fact remains that the "malicious and sadistic factor puts in issue the subjective motivations of the individuals officers, which our prior cases make clear has no bearing on whether a particular seizure is `unreasonable' under the Fourth Amendment.").

Other Eleventh Circuit cases have recognized Graham's overruling of Leslie's use of the subjective intent factor. In Nolin v. Isbell, 207 F.3d 1253, 1257 n. 3 (11th Cir.2000), the court stated, "[t]he district court correctly noted that Leslie included the now-superceded four part test for excessive force claims." Furthermore, the Eleventh Circuit in Lee v. Ferraro, 284 F.3d 1188, 1198 n. 7 (11th Cir.2002) stated:

(emphasis in original). When examining the reasonableness of the force used by an officer against the plaintiff, the officer's motivations and intentions will not be taken into account. The only thing the court will consider is whether the officer's use of force was objectively reasonable under the circumstances. Therefore, the court will not consider any argument put forth by the plaintiff that the defendant allegedly used force against the plaintiff in a malicious or sadistic manner.

De Minimis Force

In the Fourth Amendment excessive force analysis, courts do not give de minimis injury separate consideration from de minimis force, but instead consider them in conjunction with one another. For example, in Jones v. City of Dothan, 121 F.3d 1456, 1460 (11th Cir.1997), the Eleventh Circuit determined that qualified immunity protected the officers because while "the use of force against [the plaintiff] may have been unnecessary, the actual force and the injury inflicted were both minor in nature." The Eleventh Circuit has also considered de minimis injury as evidence that the level of force applied against the plaintiff was also merely de minimis, as opposed to excessive. See Nolin v. Isbell, 207 F.3d 1253, 1256 (11th Cir.2000) (quoting Gold v. City of Miami, 121 F.3d 1442, 1446-47 (11th Cir.1997)) ("The minor nature of this injury reflects that minimal force was used to apply the handcuffs.").

Analysis and Conclusions of the Court

The undisputed evidence in this case establishes that the purported injury to the plaintiff was de minimis, if existent, and, thus, that any force was de minimis and not excessive. The court initially looks to the depositions of plaintiff and his mother. The plaintiff's deposition suggests that he had social-type problems before the incident and that his experiences at the jail may have actually caused some improvement in his interaction with authority figures. He was polite throughout his deposition. At one point he stated, "I used to have a problem with authority. I'm getting over that now."6 Plaintiff stated that his present grades are good. Plaintiff stated that prior to the incident with Amerson he had been confronted with inappropriate language and that he responded in kind with a female officer and perhaps others. He said that he got disrespectful and may have been trying to "pick a fight or something." He threatened to sue the officers he dealt with before he was turned over to Amerson.

Plaintiff testified that he was cuffed and shackled before Amerson came to the bench where he was sitting. He testified that Amerson said he was "here to help me and all this other stuff and I made the statement, I don't really care about this.... I remember saying that and all I remember after that was the moment where he had choked me." He did not remember being struck by Amerson.7 The alleged "choking" incident was all that he could recall with reference to any physical conduct by Amerson. Plaintiff stated that Amerson's hand(s) were on his neck and throat, not his mouth, and that it "shortened" his breath after he applied a "small amount of pressure." (Emphasis added). He acknowledged that he challenged Amerson to fight. Plaintiff stated, "I did not try to spit." After the incident he was taken to a room where he cracked a window with a chair and did other damage because he allegedly had been told that inmates would come in the room.

Plaintiff's mother testified to the medicines he has been taking since before the incident and that "he's doing pretty good." Plaintiff's mother testified that prior to the incident a judge had "placed him on probation" and put him in the "Success Academy." This resulted from a "squabble" with a teacher when plaintiff used vile language and a threat. She stated that at the time of the deposition (April 26, 2012) he was current with his grades and "on time."

His mother signed plaintiff into Amerson's program. She dropped him off at the jail. She testified that he did not have as much problem with people of authority as with what he perceived as untruthful people. She testified that his ADHD had something to do with it; that he gets frustrated and finds it hard to pull back on it. She stated that, "he had gotten suspended at the middle school a couple of times .... [for] fighting with another student, arguing, speaking out, talking at lunch." Asked, "How are his grades now," she stated, "they have improved greatly." She's had no out of pocket expenses on account of the incident. She does not know of any medical treatment he has received since the incident. He's refused to go to therapists.

Entries in various documents created by the Coosa Valley Youth Services and Juvenile Detention of Alabama reveal some consistencies with the depositions of plaintiff and his mother and some possible inconsistencies. One entry (6.), indicates some possibility of unmeasured pain in "shoulder-wrists from being arrested." There is no indication as to who may have caused any such pain. There is no suggestion that Amerson caused any such pain. The depositions suggest to the contrary. The document is apparently dated Feb. 7, 2011. Another document provides a list of possible "skin problems," (13.), with a listing of such problems including "abrasions, bruises." The section indicates no such problems, "abrasions, bruises" or otherwise. No. 16 pictures body sketches with no indication of bruises, abrasions or otherwise. It is dated Feb. 7, 2011.

Under a category of Initial Medical Assessment, No. 7, it is stated that there is no appearance of being tearful, fearful, sad, anxious, withdrawn, agitated or with anger regarding placement. The entry is apparently dated Feb. 18, 2011. No. 20 under this heading has the same listing as No. 13 stated above, again with a statement of none. No. 24 of this Feb. 18, 2011 document has the same body sketches referred to above as being under 16, but, unlike the number 16 sketches, has a statement of "1) abrasions" beneath the sketches.

Under a heading of "Juvenile Detention, State of Alabama," there are entries which state the plaintiff is not ill or suffering any pain but that he has recently been physically or sexually abused. There is no suggestion of who committed any such abuse. The form is dated Feb. 4, 2011 and further states, "Claims he was beaten at the Sheriffs De [sic] arriving to CVYS." It does not state by whom. The depositions suggest to the contrary with regard to any "beating" by Amerson. The same form indicates that the plaintiff has no "serious injury" and does not appear to be in need of medical attention. The same form also indicates that there are no "altered mental status," "trauma," "markings/bruises," or "open sores/wounds."

A form dated Feb. 7, 2011, states, "Youth stated that he was beaten up by Sheriff deputy (not Amerson)." Plaintiff's unsworn handwritten "Statement of Allegation of Abuse" dated Feb. 7, 2011 mentions Amerson only as follows: "And then even later that day they call the Sheriff and told him that I was going to tell. So when the sheriff got there I was chained to a metal bench. So the Sheriff ask to `speak to me in private' and they left and locked the door behind them. And [illegible] when the sheriffs started hitting me [contrary to the video and plaintiff's deposition]...."

Attached hereto as Exhibit 1 is a photograph of what purports to be a slight bruise to plaintiff's neck.8 Even a slight bruise cannot be truly perceived from an examination of the photograph. Plaintiff never sought nor received any medical examination or treatment for any purported physical or mental injury. There has been no expert testimony or other evidence of injury except that which might be gleaned from the depositions. Plaintiff testified that he could not "remember" any other physical injury other than the alleged "bruise." Plaintiff did not remember any doctor "checking out" any injury he may have had. He could not "remember any long-term effect" of any alleged injury.

The case of Nolin v. Isbell, 207 F.3d 1253 (11th Cir.2000) has a good discussion of the Eleventh Circuit law on the consideration of de minimis injury in the context of excessive force claims. Among the statements in that case are the following:

In granting qualified immunity to the officer, this Court stated that

This court concludes that there was no Constitutional violation because there was no excessive force; there was only de minimis physical or mental injury, if any injury. Further, even it could be reasonably argued that there is a question of fact as to whether there was a Constitutional Fourth Amendment violation, the defendant Amerson is entitled to prevail on his qualified immunity defense. The plaintiff has not met the burden of defeating qualified immunity by showing that the law was clearly established that such force was excessive under the circumstances. Even if it could be established that Amerson acted with rudeness and anger, that would not, in and of itself, establish excessive force. It is apparent that Amerson started out to, as plaintiff testified, "to help me and all this other stuff." Plaintiff didn't "really care about this," and abruptly and defiantly turned away from Amerson.

The court will enter judgment in favor of defendant Amerson.10

EXHIBIT 1