Perry v. Thompson, 85-3551

Citation786 F.2d 1093
Decision Date15 April 1986
Docket NumberNo. 85-3551,85-3551
PartiesDonald PERRY, Petitioner-Appellant, v. R.E. THOMPSON, Sgt., et al., Respondents-Appellees. Non-Argument Calendar.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Lynda Quillen, Tallahassee, Fla., for respondents-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before GODBOLD, Chief Judge, HILL and ANDERSON, Circuit Judges.

PER CURIAM:

This is a Sec. 1983 case filed December 29, 1982 by inmate Perry against two prison officers. His sworn complaint alleged detailed facts. He alleged that he was being escorted to a "control room" by one of the officers where he was to be visited by an attorney. He was in waist chains and his hands were cuffed in front of him. The officer asked plaintiff why he had not shaved his face "clean," and the plaintiff allegedly responded that he had a "shaving pass" from a dermatologist prescribing that he should keep and maintain "a low clipped beard." But, plaintiff alleged, the first officer, assisted by another officer, forcibly carried plaintiff into the barber shop to be shaved. Plaintiff alleged that the officers struck him in the face, head, shoulder, arms and legs with their hands and that while he was down on the floor in the hallway they kicked him in the sides, ribs, back and head. After the encounter his mouth and arms were bleeding a little. They "beat [him] on down to the control room," presumably after the barber shop incident was over.

Defendants answered April 28, 1983, admitting that one officer asked plaintiff why he was not clean shaven and denying that plaintiff stated he had a shaving pass.

Plaintiff responded with an affidavit, filed May 18, 1983, stating in conclusory fashion that he was physically assaulted as alleged in the complaint and that he had a shaving pass as alleged. Later, in July 1983, plaintiff filed the affidavit of another inmate who stated that he had heard a dialogue between plaintiff and one of the officers about his not shaving his face clean and heard plaintiff explain that he had a shaving pass not to shave his face to the skin. The inmate went on to state that the first officer did not want to hear what plaintiff had to say and that the two officers forced plaintiff into the barber shop where he was forced, by being held down, to shave his face down to the skin. He saw plaintiff's mouth and arm bleeding, and he verified that plaintiff was in a waist chain.

In April 1985 plaintiff moved for summary judgment, restating his claim that he was forcibly required to shave clean and reiterating in detail the alleged facts of being struck and kicked. The motion was sworn.

On May 7, 1985 defendants filed a composite pleading. It moved to deny plaintiff's motion for summary judgment, and, on behalf of defendants, it moved to dismiss the complaint and cross-moved for summary judgment for defendants. Attached were affidavits from the officers which said that the first officer questioned plaintiff concerning his beard and plaintiff said he had a pass to be shaved with clippers only, that he ordered plaintiff into the barber shop to be shaved with clippers, plaintiff refused and began to walk away. The two officers, each grasping an arm, "led" or "escorted" plaintiff into the barber shop to be shaved with clippers, and he was shaved with clippers without further incident. The officers attached incident reports they had filed supporting their descriptions of what occurred, plus a statement from a medical technician that plaintiff's medical records showed no complaints of injury on the day of the incident or the next day. Also they filed a supervisor's statement that shaving of inmates is done by clippers and razors are not permitted.

The court found several facts, based upon the defendants' affidavits and documents submitted with their composite motion. It found that plaintiff had disobeyed a verbal order and was walking away from the officers, and that the force used by them was reasonably necessary to regain control of him and to prevent further disobedience. It held that there was no "intentional and culpable misconduct" in controlling plaintiff. The court found, "based upon the defendants' convincing presentation" that the...

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133 cases
  • Watson v. Edelen
    • United States
    • U.S. District Court — Northern District of Florida
    • 5 January 2015
    ...penalty of perjury. Therefore, the factual allegations in the complaint may be used as an opposing affidavit. See Perry v. Thompson, 786 F.2d 1093, 1095 (11th Cir.1986) ; Sammons v. Taylor, 967 F.2d 1533, 1545 n. 5 (11th Cir.1992) (“[F]acts alleged in an inmate's sworn pleading are sufficie......
  • Cloy v. Boutwell
    • United States
    • U.S. District Court — Southern District of Alabama
    • 22 December 2014
    ...declaration under penalty of perjury that may be considered as evidence for purposes of summary judgment. See Perry v. Thompson, 786 F.2d 1093, 1095 (11th Cir. 1986) (per curiam) ("Plaintiff alleged specific facts in his sworn complaint and they were required to be considered in their sworn......
  • Pate v. Peel
    • United States
    • U.S. District Court — Northern District of Florida
    • 31 March 2003
    ...of perjury it is treated as his sworn affidavit. Sammons v. Taylor, 967 F.2d 1533, 1545 n. 5 (11th Cir.1992); Perry v. Thompson, 127 786 F.2d 1093, 1095 (11th Cir. 1986). Nevertheless, a verified complaint's allegations are subject to the scrutiny that an affidavit receives from a court whe......
  • Kelly v. Ambroski
    • United States
    • U.S. District Court — Northern District of Alabama
    • 31 March 2015
    ...facts” pled in a pro se plaintiff's sworn complaint must be considered in opposition to summary judgment. See Perry v. Thompson, 786 F.2d 1093, 1095 (11th Cir.1986).III. Summary Judgment FactsBased on the foregoing summary judgment standard, the following facts are undisputed or, if dispute......
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