Demetrius Hill v. C.O. Crum , 727 F.3d 312 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6705
DEMETRIUS HILL,
Plaintiff − Appellee,
v.
C.O. CRUM,
Defendant – Appellant,
and
TERRY O’BRIEN, Warden; MR. STRICKLAND, Associate Warden; MR.
WILSON, Captain; LT. STIGER; PULIVAR, Counselor; COUNSELOR
MULLINS; MS. HALL, Case Manager; NURSE MEADE; DR. ALLRED;
DR. ROFF, Health Administrator; C.O. T. TAYLOR; C.O. TAYLOR;
C.O. MARTIN,
Defendants.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior
District Judge. (7:08-cv-00283-JCT-RSB)
Argued: March 22, 2013 Decided: August 14, 2013
Before NIEMEYER, AGEE, and THACKER, Circuit Judges.
Reversed and remanded by published opinion. Judge Agee wrote
the majority opinion, in which Judge Niemeyer joined. Judge
Thacker wrote a dissenting opinion.
James J. O'Keeffe, IV, GENTRY, LOCKE, RAKES & MOORE, Roanoke,
Virginia, for Appellant. Arlene Sokolowski, SOKOLOWSKI LAW
OFFICE, North Royalton, Ohio, for Appellee.
2
AGEE, Circuit Judge:
Plaintiff Demetrius Hill (“Hill”) sued Correctional Officer
William Crum (“Crum”) pursuant to Bivens v. Six Unnamed Agents,
403 U.S. 388 (1971), alleging that Crum used excessive force
against him in violation of Hill’s Eighth Amendment rights.
Claiming he was entitled to qualified immunity, Crum appeals the
district court’s denial of his Rule 50(b) motion for judgment as
a matter of law. For the reasons that follow, we reverse the
district court’s order denying Crum’s motion for judgment as a
matter of law, and remand with instructions to enter judgment in
favor of Crum.
I. Factual Background
At all times relevant to this appeal, Hill was an inmate in
the U.S. Penitentiary Lee (“USP Lee”) in Jonesville, Virginia.
Hill shared a cell with Delmont Logan (“Logan”). 1 On November 1,
2007, Logan broke a fire sprinkler in their cell, which caused
the cell to flood. Hill and Logan submitted to hand restraints
in order to be moved to a new cell so the damage could be
repaired. Logan was first escorted by a correctional officer to
1
Crum disputes Hill’s version of events. However, because
the district court denied Crum’s Rule 50(b) motion for judgment
as a matter of law, we review the facts in the light most
favorable to Hill, the non-movant. Konkel v. Bob Evans Farms,
Inc., 165 F.3d. 275, 279 (4th Cir. 1999).
3
a different cell, which left Crum alone in the flooded cell with
Hill.
After Logan was removed, Crum shoved Hill and required him
to leave his legal material in the flooded cell. Without
provocation, Crum then assaulted Hill, punching him in the
abdomen and ribs, and elbowing the side of his head. During the
assault, Crum shouted at Hill, “break another sprinkler, I’ll
break your neck.” (J.A. 219). The assault lasted about two
minutes before Crum moved Hill to a holding cell, knocking his
head against a gate on the way out. The prison staff kept Hill
in ambulatory restraints for seventeen hours following the
assault. 2 Hill alleged that as a result of Crum’s assault, he
suffered a bruised rib, temporary dizziness, and a “vicious,
vicious headache.” (J.A. 150-51, 223).
About an hour after the assault, prison officials recorded
two videos of Hill and Logan in their new cell. The videos
depict Hill standing in his cell. While he does not seem to be
2
The captain and the warden, not Officer Crum, decide how
long an inmate remains in ambulatory restraints. Hill does not
contend the ambulatory restraint confinement is part of his
cause of action against Crum.
4
in visible distress, he alleged he had a swollen eye, although
that is not apparent in any of the videos. 3
Theresa Meade (“Meade”), a registered nurse, examined Hill
after he was moved to the holding cell. Meade found that Hill
had “[n]o injuries,” (J.A. 192), and documented her assessment
in a contemporaneous report, “Inmate Injury Assessment and
Followup,” (J.A. 201). Meade testified that while her
examination focused on injuries caused by the ambulatory
restraints, it would have included notes regarding Hill’s
dizziness, feelings of pain, inability to stand or understand
had she noticed any problems, or if he had complained of any
injuries. Hill’s medical records did not indicate any
complaints of injuries resulting from his alleged assault by
Crum.
On April 9, 2008, Hill brought a pro se Bivens suit in the
United States District Court for the Western District of
Virginia against eleven USP Lee prison officials alleging
various deprivations of his rights. Hill’s complaint did not
name Crum as a defendant or claim any injuries arising out of
the November 1, 2007 assault; however, he did complain about the
length of time during which he was subjected to ambulatory
3
The video does not show the alleged assault and begins
running more than an hour after the assault occurred. Hill
stands for much of the video and does not appear to be in pain.
5
restraints that day. On April 18, 2008, Hill, still proceeding
pro se, amended his pleading to include a separate excessive
force claim against Crum based on the alleged assault in the
flooded cell on November 1, 2007. 4
Initially, the district court sua sponte dismissed Hill’s
excessive force claim against Crum for failure to state a claim,
pursuant to 28 U.S.C. § 1915A(b)(1). 5 In doing so, the court
relied on Norman v. Taylor, 25 F.3d 1259 (4th Cir. 1994) (en
banc), 6 which held, “absent the most extraordinary circumstances,
a plaintiff cannot prevail on an Eighth Amendment excessive
force claim if his injury is de minimis.” Id. at 1263. Finding
that Hill did not allege that Crum’s assault had caused more
than a de minimis injury, the district court dismissed his
claim. Hill, still without counsel, appealed.
While Hill’s case was pending on appeal to this Court, the
Supreme Court decided Wilkins v. Gaddy, 559 U.S. 34, 130 S. Ct.
1175 (2010), holding that there is no de minimis injury
4
Although Hill and other plaintiffs brought multiple claims
against multiple defendants in the district court, Hill’s
excessive force claim against Crum is the only claim pertinent
to this appeal.
5
Section 1915A(b)(1) directs a district court to identify
and dismiss a civil action filed by a prisoner that is
“frivolous, malicious, or fails to state a claim upon which
relief may be granted.”
6
Abrogated by Wilkins v. Gaddy, 559 U.S. 34, 130 S. Ct.
1175 (2010).
6
threshold for an excessive force claim, specifically rejecting
the Fourth Circuit’s approach in Norman. In light of Wilkins,
this Court vacated the district court’s dismissal of Hill’s
excessive force claims and remanded the case to the district
court. See Hill v. O’Brien, 387 F. App’x 396 (4th Cir. 2010)
(unpublished); (J.A. 86-87).
On remand, Crum filed motions to dismiss and for summary
judgment on several grounds, including that he was entitled to
qualified immunity. The district court ruled that Crum was not
entitled to qualified immunity because a trier of fact could
conclude that Hill’s Eighth Amendment rights had been violated.
Crum answered Hill’s complaint, denied liability, and again
moved for summary judgment based on qualified immunity, which
was again denied based on the same rationale that it “cannot
credibly be claimed that Defendants were not on notice that
unnecessarily inflicting pain on the Plaintiff violated his
constitutional rights.” (J.A. 136). Hill obtained counsel and
the case proceeded to trial by jury.
At trial, Crum moved pursuant to Federal Rule of Civil
Procedure 50(b) for judgment as a matter of law at the close of
Hill’s case and again at the close of all the evidence on the
basis of qualified immunity. The district court denied both
motions, and the jury returned a verdict in Hill’s favor,
finding Crum liable and awarding $25,000 in damages. (J.A.
7
207). After trial, Crum moved for a new trial under Rule 59(a)
and again for judgment as a matter of law under Rule 50(b) on
the ground of qualified immunity, arguing that his conduct did
not violate a clearly established constitutional right under
Norman at the time of the alleged assault.
The district court granted Crum’s motion for a new trial on
all issues, stating that “$25,000 in compensatory damages for a
bruised rib and an impermanent headache simply shocks the
conscience of the Court. It is a miscarriage of justice that
cannot stand.” 7 (J.A. 227, 233).
7
Hill did not file a cross-appeal of the district court’s
grant of Crum’s motion for a new trial. As a consequence, we
must treat that trial as a nullity. See United States ex rel.
Drakeford v. Tuomey Healthcare Sys., Inc., 675 F.3d 394, 405
n.18 (4th Cir. 2012) (“Where a motion for new trial has been
sustained, the issues stand as though they had never been tried.
The cause is to be tried de novo. The whole case, including the
issues of fact at the former trial, is open for hearing and
determination.”) (quoting 66 C.J.S. New Trial § 331 (2011)
(footnotes omitted).
Despite the fact that the district court set aside the
verdict and ordered a new trial, Hill’s counsel stated on brief
that “[t]he jury found that the injuries were not de minimis,”
(Br. of Appellee at 18), and “a jury has already determined that
Defendant Crum used an amount of force that was repugnant to
their conscience,” (Br. of Appellee at 18-19). The jury did not
return a special verdict on either point, and we have identified
no support in the record for counsel’s statements regarding the
jury’s “findings.” Notwithstanding the dubious veracity of
counsel’s claims, however, any findings that were made by the
jury are now void by the grant of a new trial.
8
Although granting the new trial motion, the district court
denied Crum’s motion for judgment as a matter of law on the
issue of qualified immunity, again stating that “[i]t is
apparent—and cannot be credibly denied—that a reasonable officer
in Crum’s position in 2007 would have known that repeatedly
punching a restrained prisoner in the stomach, ribs, and head
for a sustained period, for no other reason but to punish him
for a behavioral issue, was unlawful in light of pre-existing
law.” (J.A. 225). As with its earlier rulings, the district
court cited no authority for its decision. Crum timely appealed
the denial of his Rule 50(b) motion. 8
28 U.S.C. § 1291 affords this Court jurisdiction over final
orders of the district court. Pursuant to § 1291, the Court has
jurisdiction to hear the appeal of the denial of a qualified
immunity defense, before there is a final order, if the denial
rests on a legal issue. Valladares v. Cordero, 552 F.3d 384,
387-88 (4th Cir. 2009). If, however, the appeal presents an
issue of the insufficiency of the evidence to raise a genuine
issue of material fact, this Court does not have jurisdiction
under § 1291 to consider such a claim. Bailey v. Kennedy, 349
F.3d 731, 738 (4th Cir. 2003); see Johnson v. Jones, 515 U.S.
8The district court has stayed further proceedings pending
this appeal.
9
304, 319-20 (1995) (“[A] defendant, entitled to invoke a
qualified immunity defense, may not appeal a district court’s
summary judgment order insofar as that order determines whether
or not the pre-trial record sets forth a ‘genuine’ issue of fact
for trial.”). We do possess jurisdiction to consider this
appeal from the denial of qualified immunity to the extent that
Crum claims that his conduct did not violate clearly established
law. See Winfield v. Bass, 106 F.3d 525, 530 (4th Cir. 1997)
(en banc) (“[W]e have jurisdiction over a claim that there was
no violation of clearly established law accepting the facts as
the district court viewed them.”). Because the district court’s
rejection of Crum’s qualified immunity defense turns only on a
question of law, it is subject to immediate appeal. Valladares,
552 F.3d at 387-88.
II. Legal Background
The Supreme Court has extended the application of the
Eighth Amendment’s prohibition against “cruel and unusual
punishments” to the treatment of prisoners by prison officials.
In this context, the Court has stated that the Eighth Amendment
forbids “the unnecessary and wanton infliction of pain.”
Whitley v. Albers, 475 U.S. 312, 319 (1986) (quoting Ingraham v.
Wright, 430 U.S. 651 (1977)). “When prison officials
maliciously and sadistically use force to cause harm,
10
contemporary standards of decency always are violated.” Hudson
v. McMillian, 503 U.S. 1, 9 (1992) (quoting Whitley, 475 U.S. at
327). “This is true whether or not significant injury is
evident. Otherwise, the Eighth Amendment would permit any
physical punishment, no matter how diabolic or inhuman,
inflicting less than some arbitrary quantity of injury.” Id. at
9.
The Hudson Court further stated
[t]hat is not to say that every malevolent touch by a
prison guard gives rise to a federal cause of action.
The Eighth Amendment’s prohibition of cruel and
unusual punishments 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.
Id. at 9-10 (citations and quotation marks omitted).
Referencing this statement in Hudson as its basis, the Fourth
Circuit in Norman focused on the extent of the plaintiff’s
injury rather than the nature of the defendant’s force as the
threshold a plaintiff must cross to state an Eighth Amendment
claim. 9 The Norman court reasoned that “Hudson does not suggest,
much less hold, that the extent of injury is irrelevant to
whether excessive force has been employed and therefore that an
9
The inmate, Norman, alleged that the defendant swung his
keys at him and “caught his right hand, hitting him on his thumb
with the cell keys causing his hand to swell[].” Norman, 25
F.3d at 1260-61 (brackets omitted).
11
excessive force claim cannot be defeated by evidence that the
plaintiff's injury was de minimis.” Norman, 25 F.3d at 1262-63.
We held in Norman that “absent the most extraordinary
circumstances, a plaintiff cannot prevail on an Eighth Amendment
excessive force claim if his injury is de minimis.” Id. at
1263.
Following the Norman decision, until abrogated by the
Supreme Court in Wilkins in 2010, the Fourth Circuit
consistently held that a plaintiff could not prevail on an
excessive force claim, “absent the most extraordinary
circumstances,” if he had not suffered more than de minimis
injury. “Extraordinary circumstances” were defined as those
situations in which the force used is “repugnant to the
conscience of mankind,” or the pain suffered is so significant
that it constitutes more than de minimis injury. Id. at 1263
n.4.
In Riley v. Dorton, 115 F.3d 1159 (4th Cir. 1997), we
observed the continuing validity of the Norman holding,
extending that holding to pre-trial detainees. Riley, a pre-
trial detainee, alleged that the defendant used excessive force
against him while he was handcuffed and awaiting booking at the
police station. 115 F.3d at 1161. Specifically, Riley alleged
that the defendant inserted the tip of his pen a quarter of an
inch into Riley’s nose and threatened to rip his nose open. Id.12
He further alleged that the defendant slapped him in the face
with “medium” force. Id. In determining that the defendant’s
conduct was not actionable, we applied the holding in Norman
that “a plaintiff cannot prevail on an Eighth Amendment
excessive force claim if his injury is de minimis” to Fourteenth
Amendment excessive force claims of pre-trial detainees. Id. at
1166 (quoting Norman, 25 F.3d at 1263). We thus reiterated
“[a]n injury need not be severe or permanent to be actionable
under the Eighth Amendment, but it must be more than de minimis.
We think this same rule applies to excessive force claims
brought by pre-trial detainees.” Id. at 1167 (citation
omitted).
In Taylor v. McDuffie, 155 F.3d 479 (4th Cir. 1998), a pre-
trial detainee, Taylor, in “handcuffs and leg irons,” id. at
481, alleged that officers shoved a small wooden object into his
nose with such force that it caused a nose hemorrhage, shoved
the same wooden object into his mouth, which cracked his tooth,
hit him in the back of his head, and punched him in the ribs.
155 F.3d at 481. Applying Norman and Riley, we affirmed summary
judgment for defendants on the basis that plaintiff suffered
only de minimis injury. Id. at 484.
Judge Murnaghan dissented in Taylor, contending that under
the Court’s holding in Norman, “officers in our circuit are free
to use excessive or unjustified force against inmates, so long
13
as they are careful or fortunate enough to leave only minor
traces of their blows.” 155 F.3d at 487 (Murnaghan, J.,
dissenting). This was one of the “unacceptable results achieved
when a finding of de minimis injury is considered dispositive of
the excessive force inquiry.” Id. at 486 (Murnaghan, J.,
dissenting). Despite Judge Murnaghan’s objections, Norman and
Taylor remained the settled law in the Fourth Circuit.
Consistent with Norman, Riley, and Taylor, we have
consistently applied the rule that a plaintiff cannot prevail on
an excessive force claim if his injuries were de minimis. See,
e.g., Stanley v. Hejirika, 134 F.3d. 629, 634-36 (4th Cir. 1998)
(reversing the district court and finding as a matter of law
that plaintiff’s bruising, swelling, and a loosened tooth were
de minimis); Hines v. Young, 142 F. App’x 780, 781 (4th Cir.
2005) (unpublished) (per curiam) (affirming district court’s
grant of summary judgment for defendants where plaintiff’s
hairline fracture to his finger required little medical
treatment and no pain medication and was thus de minimis);
Germain v. Ruzicka, No. 99-6979, 2000 WL 139255, at *3 (4th Cir.
Feb. 8, 2000) (unpublished) (per curiam) (summary judgment in
favor of defendants was proper where plaintiff’s only alleged
injury, a severe headache, was clearly de minimis); Williams v.
Dehay, Nos. 94-7114, 94-7115, 1996 WL 128422, at *3 (4th Cir.
March 21, 1996) (unpublished) (per curiam) (affirming that
14
plaintiff’s “[t]ransitory back and shoulder aches of limited
duration” caused by the defendant were de minimis). 10
The dissent correctly observes that Stanley involved the
use of force that was at least arguably justified by a prison
security interest. See post at [37] n.3. Stanley, however,
like the myriad other cases from this Circuit decided in the
Norman line, recognized that the proper inquiry, pre-Wilkins,
was “whether the injury of which [the plaintiff] complains is
significant enough, when viewed in its factual context, to
amount to a violation of his right to be free from cruel and
10
District courts within our circuit have routinely applied
the Norman holding to excessive force claims. See e.g., Martin
v. Mathena, No. 7:08-cv-00573, 2009 U.S. Dist. LEXIS 3856, at
*5-6 (W.D. Va. Jan. 21, 2009) (dismissing excessive force claim
for failure to state more than a de minimis injury in which
inmate received a scratch with a small amount of blood as a
result of a dog bite); Lewis v. Green, No. RWT-08-2649, 2009 WL
2969584, at *4-5 (D. Md. Sept. 14, 2009) (scratches left by
alleged assault by prison guards constituted de minimis injury);
Smalls v. S.C. Dep’t of Corr., No. 6:09-2654-TLW-WMC, 2009 WL
5062393, *4 (D. S.C. Dec. 16, 2009) (injuries to eyes from
alleged mace use de minimis where plaintiff failed to seek
medical attention); Brown v. Spencer, No. 3:07-CV-61, 2008 WL
4763317, at *4 (N.D.W. Va. Oct. 29, 2008) (summary judgment
appropriate where plaintiff suffered only de minimis injuries
resulting from use of pepper spray); Chatman v. Anderson, No.
7:05 cv 0047, 2005 U.S. Dist. LEXIS 36560, *7-8 (W.D. Va. Aug.
26, 2005) (finding de minimis plaintiff’s neck pain and bruising
due to alleged choking incident); Garrett v. Bliley, No. 7:05 cv
00497, 2005 U.S. Dist. LEXIS 37610, *7-8 (W.D. Va. Sept. 23,
2005) (finding de minimis plaintiff’s “superficial scratch”
caused by correctional officer firing live round at another
inmate).
15
unusual punishment[.]” Stanley, 134 F.3d at 636 (emphasis
added).
More to the point, however, the distinction referenced in
Stanley, and relied upon by the dissent, between excessive force
in the context of restoring prison order versus inflicting
punishment on a nonviolent inmate, was not recognized under
Norman or its following cases in the de minimis injury analysis.
For example, Norman, Riley, and Wilkins involved cooperating
prisoners. While there was some allegation in Taylor that the
plaintiff was not cooperating with police, there was no
suggestion that the plaintiff was involved in any disturbance
that justified the assault alleged in that case.
The Norman court specifically declined to base its de
minimis injury rule on a prison security distinction because it
did “not base [its] conclusion on a separate conclusion that the
force used by Sergeant Taylor was in response to the disturbance
that Taylor alleges Norman was creating by yelling during the
prison role call.” Norman, 25 F.3d at 1263 n.5. Thus, the fact
that Hill alleged that he was not causing a disturbance is not
dispositive of the issue of qualified immunity. Moreover, the
dissent’s distinction for a “restrained and cooperative” inmate
cannot be found in the Norman line of cases. In fact, the
plaintiff in Riley was “handcuffed,” Riley, 115 F.3d at 1161,
16
and in “handcuffs and leg irons” in Taylor, 155 F.3d at 481,
when the alleged assaults took place.
The threshold requirement that a plaintiff suffer more than
a de minimis injury to state an excessive force claim was thus
settled law in this circuit until 2010, when the Supreme Court
in Wilkins abrogated Norman, Riley, and Taylor. In Wilkins, the
prisoner alleged that a corrections officer, Gaddy, “maliciously
and sadistically” assaulted him “without any provocation.”
Wilkins, 130 S. Ct. at 1177. Gaddy allegedly slammed Wilkins
onto the floor and “proceeded to punch, kick, knee and choke
[Wilkins] until another officer had to physically remove him
from [Wilkins].” Id. (citations in original). As a result of
Gaddy’s force, Wilkins sustained “a bruised heel, lower back
pain, increased blood pressure, as well as migraine headaches
and dizziness” and “psychological trauma and mental anguish
including depression, panic attacks and nightmares of the
assault.” Id.Wilkins’ complaint was filed in the district court for the
Western District of North Carolina, which dismissed the
complaint for failure to state a claim pursuant to Norman. “In
order to state an excessive force claim under the Eighth
Amendment, a plaintiff must establish that he received more than
a de minimis injury.” Wilkins v. Gaddy No. 3:08CV138-01-MU,
2008 WL 1782372, at *1 (W.D. N.C., Apr. 16, 2008). The district
17
court, which found Wilkins’ injuries no more severe than those
deemed de minimis in Taylor and Riley, also noted that Wilkins
failed to assert that his injuries had required medical
attention. Id. We summarily affirmed that conclusion on appeal
based on the district court’s rationale under Norman and its
progeny. See Wilkins v. Gaddy, 308 F. App’x 696 (4th Cir. 2009)
(unpublished) (per curiam).
Reversing the holding of this Court and abrogating Norman,
Taylor, and Riley, the Supreme Court stated “[a]n inmate who is
gratuitously beaten by guards does not lose his ability to
pursue an excessive force claim merely because he has the good
fortune to escape without serious injury.” Wilkins, 130 S.Ct.
at 1178-79. The Court also concluded that the
Fourth Circuit’s strained reading of Hudson is not
defensible. This Court’s decision did not, as the
Fourth Circuit would have it, merely serve to lower
the injury threshold for excessive force claims from
‘significant’ to ‘non-de minimis’—whatever those ill-
defined terms might mean. Instead, the Court aimed to
shift the ‘core judicial inquiry’ from the extent of
the injury to the nature of the force—specifically,
whether it was nontrivial and ‘was applied . . .
maliciously and sadistically to cause harm.’
Id. at 1179 (quoting Hudson, 503 U.S. at 7). The Wilkins Court
clarified that the nature of the force, rather than the extent
of the injury, is the relevant inquiry. “Injury and force,
however, are only imperfectly correlated, and it is the latter
that ultimately counts. ” Id. at 1178. Thus, it is clear that
18
the de minimis injury threshold that this Court (and the
district courts within this circuit) had relied upon in
considering excessive force claims is no longer the appropriate
test. The question , however, is whether Crum’s alleged conduct
which took place prior to the Supreme Court’s Wilkins decision,
is covered by qualified immunity.
III. Analysis
A. Standard of Review
We review the district court’s denial of Crum’s Rule 50(b)
motion de novo. Sloas v. CSX Transp., Inc., 616 F.3d 380, 392
(4th Cir. 2010). We view the facts in the light most favorable
to Hill. Id.B. Analysis
“Qualified immunity shields government officials from civil
liability insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Trulock v. Freeh, 275 F.3d
391, 399 (4th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). Qualified immunity protects law enforcements
officers from liability for “bad guesses in gray areas” and
ensures that they will be held liable only for violating bright-
line rules. Braun v. Maynard, 652 F.3d 557, 560 (4th Cir.
2011). It “operates to ensure that before they are subjected to
19
suit, officers are on notice that their conduct is unlawful.”
Hope v. Pelzer, 536 U.S. 730, 731 (2002).
In deciding whether a defendant is entitled to qualified
immunity, we examine (1) whether the facts illustrate that Crum
violated Hill’s constitutional right to be free from excessive
force; and, (2) if so, whether Crum’s conduct was objectively
reasonable in view of the clearly established law at the time of
the alleged event. See Orem v. Rephann, 523 F.3d 442, 445 (4th
Cir. 2008) (citing Saucier v. Katz, 533 U.S. 194, 200 (2001)). 11
Crum does not dispute the first prong, that there is a
constitutional right to be free of excessive force. His
argument is that he is entitled to qualified immunity because
Hill’s claimed constitutional violation was not clearly
established at the time of the assault. Under the clearly
established law of the Fourth Circuit on November 1, 2007, we
must agree with Crum.
11
Pearson v. Callahan, 555 U.S. 223 (2009), clarified that
we are not required to look first at prong one:
[w]hile the sequence set forth [in Saucier] is often
appropriate, it should no longer be regarded as
mandatory. The judges of the district courts and the
courts of appeals 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.
555 U.S. at 236.
20
For a right to be “clearly established,” in a qualified
immunity case, “the contours of the right must be sufficiently
clear that a reasonable officer would understand that what he is
doing violates that right.” Wilson v. Layne, 526 U.S. 603, 615
(1999). Therefore, in deciding whether the right was clearly
established, we must determine whether an official in the
defendant’s position knew or reasonably should have known that
the action he took violated the constitutional rights of the
plaintiff. See id. at 614-15. However, “[t]his 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 pre-existing law
the unlawfulness must be apparent.” Id. at 615.
“[W]e have long held that it is case law from this Circuit
and the Supreme Court that provide notice of whether a right is
clearly established.” Lefemine v. Wideman, 672 F.3d 292, 298
(4th Cir. 2012), vacated on other grounds, 133 S. Ct. 9 (2012).
In determining whether a right was clearly established
at the time of the claimed violation, courts in this
circuit ordinarily need not look beyond the decisions
of the Supreme Court, this court of appeals, and the
highest court of the state in which the cases arose.
. . . If a right is recognized in some other circuit,
but not in this one, an official will ordinarily
retain the immunity defense.
Id. at 298-99 (quoting Edwards v. City of Goldsboro, 178 F.3d
21231, 251 (4th Cir. 1999) (internal quotation marks, alterations,
and citation omitted).
As the Supreme Court made clear in Wilkins, Norman was an
incorrect reading of Hudson. Regardless of how we view Norman
in retrospect, however, we evaluate whether the right at issue,
for qualified immunity purposes, was clearly established at the
time of Crum’s conduct on November 1, 2007, three years before
the Supreme Court decided Wilkins. See Meyers v. Baltimore
Cnty., Md., 713 F.3d 723, 731 (4th Cir. 2013) (“[A] court . . .
must determine whether the right at issue was ‘clearly
established’ at the time of the officer’s conduct.”). At the
time of the alleged assault on Hill, Norman and its progeny were
controlling in the Fourth Circuit and had been since 1994.
Although Wilkins abrogated Norman in 2010, Wilkins can only be
applied prospectively in the context of a qualified immunity
analysis. See Fields v. Prater, 566 F.3d 381, 390 (4th Cir.
2009) (qualified immunity protects defendants from being
“retroactively subject to significant penalties at law for which
they did not have proper notice”). In other words, the 2010
holding in Wilkins cannot be imputed retroactively to an officer
in this circuit whose allegedly tortious conduct predated the
Wilkins decision. The applicable law for qualified immunity
purposes would be that in existence in 2007, the time of the
alleged assault.
22
In 2007 under Norman, a reasonable correctional officer
would have objectively believed that the law in this circuit was
what the Fourth Circuit said it was; that is, a plaintiff could
not prevail on an excessive force claim “absent the most
extraordinary circumstances,” if he had suffered only de minimis
injury. Norman, 25 F.3d at 1263. Although Wilkins established
that the Fourth Circuit had been applying the incorrect
standard, the inquiry—for qualified immunity purposes—is not
whether the officer correctly interpreted the law as it would be
changed in later years, but rather, whether the conduct at issue
was reasonable based on the officer’s imputed knowledge of the
law at the time. Crum’s reliance on Norman satisfies this
standard.
Crum’s alleged conduct was no more egregious than the
conduct of other officers in a multitude of cases in which those
officers were found not to have used excessive force under the
Norman rule, including the Wilkins decision in our court. See,
e.g., Riley, 115 F.3d at 1161 (inserting tip of his pen into
pre-trial detainee’s nose, threatening to rip nose open, and
slapping him with “medium” force); Taylor, 155 F.3d at 484(shoving a small wooden object into pre-trial detainee’s nose,
cracking his tooth, hitting him in the back of his head, and
punching him in the ribs). The similarity of these cases to the
case at bar demonstrates that, under the law of our circuit
23
prior to Wilkins, Crum’s conduct would have been settled by the
Norman analysis.
Our decision in Wilkins provides a representative decision
that supports Crum’s qualified immunity argument. Over two
years after the events at issue here, we affirmed the grant of
qualified immunity for failure to establish more than de minimis
injury where Wilkins alleged injury from a prison guard beating
based on “multiple physical injuries including ‘a bruised heel,
low back pain, increased blood pressure, as well as migraine
headaches and dizziness’” and “psychological injuries such as
anxiety, depression, and panic attacks.” Wilkins, 2008 WL
1782372 at *1. Viewing Hill’s evidence in the light most
favorable to him, his claim of injury is no greater (and would
objectively appear less) than those found to be no more than de
minimis in Wilkins for qualified immunity purposes.
Under Norman, the key inquiry in determining whether a
prisoner stated an excessive force claim is whether the
plaintiff’s injuries were more than de minimis. We may
determine whether Hill’s injuries were de minimis as a matter of
law. See Carter v. Morris, 164 F.3d 215, 219 n.3 (4th Cir.
1999) (finding that the plaintiff’s claimed injury was “so
insubstantial that it cannot as a matter of law support her
claim”).
24
Hill contends on appeal that his injuries were more than de
minimis because he “received more injuries than just a sore
thumb or a stretched leg.” )Br. of Appellee at 18.) However,
Hill offered no proof that he suffered any injuries as a result
of the assault. Nurse Meade, a registered nurse, who examined
Hill after the assault, found that Hill had “[n]o injuries,”
(J.A. 192) and documented this in a contemporaneous report,
“Inmate Injury Assessment and Followup” (J.A. 201). Meade
testified that her report would have included notes regarding
his dizziness, feelings of pain, inability to stand or
understand had she noticed any problems, or if he had complained
of any injuries. Hill’s medical records do not indicate any
complaints of injuries stemming from the assault. And when Hill
first filed his pro se lawsuit against eleven prison officials
at USP Lee alleging various deprivations of rights, he did not
name Crum as a defendant or claim any injuries arising out of
the November 1, 2007 assault in his complaint. Hill simply
cannot rise above the allegations in his complaint or the
evidence tendered to the district court for resolution of the
Rule 50(b) motion. While we must construe the evidence in the
light most favorable to Hill, we cannot construe that which does
not exist. Hill’s injuries were clearly de minimis.
Under Norman, however, a plaintiff with only de minimis
injuries may still bring an excessive force claim under the
25
Eighth Amendment when certain “extraordinary circumstances” are
present. Such “extraordinary circumstances” are either that the
force used was “repugnant to the conscience of mankind” or the
pain suffered was “such that it can properly be said to
constitute more than de minimis injury.” Norman, 25 F.3d at1263 n.4.
The types of actions that have been classified as
“repugnant to the conscience of mankind” are torture,
humiliation, or degradation. See, e.g., Riley, 115 F.3d at 1168
n.4 (citing Rochin v. California, 342 U.S. 165 (1952) for the
proposition that forcibly pumping a suspect’s stomach for
information after illegally entering his house shocks the
conscience); Jordan v. Gardner, 986 F.2d 1521, 1523, 1526 (9th
Cir. 1993) (en banc) (prison policy of subjecting female inmates
to random, non-emergency pat-downs by male prison guards is
cruel and unusual punishment). But see Jackson v. Morgan, 19 F.
App’x 97, 101 (4th Cir. 2001) (unpublished) (placing inmate in
isolation cell for three days wearing only underwear and in a
three-point restraint did not constitute force repugnant to the
conscience of mankind).
District courts within our circuit have similarly found
only egregious conduct “repugnant to the conscience of mankind.”
See, e.g., Davis v. Lester, 156 F. Supp. 2d 588, 594 (W.D. Va.
2001) (finding that forcing a prisoner to be “restrained for 48
26
hours with all four of his limbs and his chest immobilized,
lying on his back in his own urine in a cold cell” to be
repugnant to the conscience of mankind); Peoples v. S.C. Dep’t
of Corr., No. 8:07-1203-CMC-BHH, 2008 WL 4442583, at *4-10 (D.
S.C. Sept. 25, 2008) (plaintiffs allegations that prison
officials flooded his cell with unknown “chemical munition,”
after which he was not allowed to seek medical attention,
shower, or clean his cell, rose to the level of alleging conduct
repugnant to the conscience of mankind); Acevedo v. Warner, No.
7:03CV00526, 2005 U.S. Dist. LEXIS 32332, *11-12, 15-*16 (W.D.
Va. Mar. 29, 2005) (finding that beating a restrained prisoner,
making racial slurs to him, and smearing feces and urine on his
face was repugnant to the conscience of mankind).
On the other hand, breaking a prisoner’s finger by slamming
his hand in a mail slot, Hines, 142 F. App’x at 781, and hitting
a prisoner with twelve blasts of pepper spray while confined in
a cell, Jackson 19 F. App’x at 101, were not “repugnant to the
conscience of mankind.” Moreover, we have previously found in
favor of defendants who assaulted a restrained inmate in
circumstances similar to those alleged by Hill. See Germain,
2000 WL 139255, at *2-3 (affirming summary judgment for
defendants who sprayed mace at and struck with a baton a
prisoner who was restrained, locked in his cell, compliant, and
was not involved in the disturbance). We have not classified
27
mere brute force, therefore, as “repugnant to the conscience of
mankind.” Hill has cited to no case, and we have found none,
where the injury pled or proved was “repugnant to the conscience
of mankind” in circumstances even remotely close to those of the
case at bar.
Crum’s alleged conduct, which is undoubtedly reprehensible,
nevertheless is more akin to brute force, rather than
humiliation, degradation, or torture as we have described
“extraordinary circumstances” in other cases. It is, therefore,
clear that his conduct does not rise to the level of conduct
“repugnant to the conscience of mankind.” In no sense do we
suggest that Crum’s alleged conduct was appropriate for a
correctional officer, but it fails to cross the very high
threshold for extraordinary circumstances that permit an
excessive force claim to advance in the absence of more than de
minimis injury for purposes of a pre-Wilkins qualified immunity
analysis.
Furthermore, Hill’s injuries do not suggest that they were
so painful that they constituted “more than de minimis injury,”
the second of Norman’s two extraordinary circumstances. 25 F.3d
at 1263 n.4. Nurse Meade found no injuries and documented this
in her report, and Hill did not complain of any injuries during
this examination. In the videotape taken a few hours after the
assault, Hill shows no visible distress and does not appear to
28
have any injuries. Hill never pled more than de minimis injury
and introduced no evidence of any injury, de minimis or
otherwise.
Because no extraordinary circumstances are applicable to
Hill’s injuries, and Hill suffered no more than de minimis
injury, he could not, at the time the assault took place, state
a claim upon which relief could be granted under the Eighth
Amendment. Therefore, the right he seeks to avail himself of
was not clearly established in the Fourth Circuit at the time of
the alleged assault. Consequently, Crum is entitled to
qualified immunity.
IV. Conclusion
For the foregoing reasons, the district court’s order
denying Crum’s Rule 50(b) motion is reversed and the case is
remanded to the district court for the entry of judgment in
favor of Crum on the basis of qualified immunity.
REVERSED AND REMANDED
29
THACKER, Circuit Judge, dissenting:
With all due respect to the majority, I must dissent.
Under prevailing Supreme Court precedent available at the time
of the assault in this case, it was clearly established that an
officer could not maliciously or sadistically impose harm on a
custodial, handcuffed, and completely non-resistant inmate
without violating the inmate’s Eighth Amendment right to be free
from cruel and unusual punishment –– and any reasonable officer
would have known as much.
As the district court correctly concluded, Appellant
Crum is not entitled to qualified immunity in as much as “[i]t
cannot credibly be claimed that [Appellant Crum] w[as] not on
notice that unnecessarily inflicting pain on [Hill] violated
[Hill’s] constitutional rights.” Hill v. O’Brien, No. 7:08-cv-
00283, 2011 WL 4566442, at *4 (W.D. Va. Sept. 30, 2011); see
also Hill v. O’Brien, No. 7:08-cv-00283, 2012 WL 517544, at *4
(W.D. Va. Feb. 16, 2012) (“It is apparent –– and cannot be
credibly denied –– that a reasonable officer in Crum’s position
in 2007 would have known that repeatedly punching a restrained
prisoner in the stomach, ribs, and head for a sustained period,
for no other reason but to punish him for a behavioral issue,
was unlawful in light of pre-existing law.”). Therefore, I
would affirm the ruling of the district court.
I.
This case involves the intersection of two judicial
doctrines: qualified immunity and the use of excessive force in
violation of the Eighth Amendment’s prohibition on cruel and
unusual punishment.
Whether Appellant Crum is entitled to qualified
immunity for his alleged assault on inmate Hill requires a
familiar two-pronged inquiry. That inquiry requires a court to
determine (1) “whether the facts that a plaintiff has
alleged . . . or shown . . . make out a violation of a
constitutional right,” Pearson v. Callahan, 555 U.S. 223, 232
(2009) (internal citations omitted) (citing Saucier v. Katz, 533
U.S. 194, 201 (2001)); and (2) “whether the right at issue was
‘clearly established’ at the time of defendant’s alleged
misconduct,” id. (quoting Saucier, 533 U.S. at 201) (holding
that the sequence of the Saucier inquiry is not mandatory).
A.
Here, Appellant Crum has conceded that the first prong
of the qualified immunity analysis –– the alleged violation of a
constitutional right –– is satisfied. Appellant’s Br. 15
(“[T]he evidence would allow a reasonable jury to conclude that
he had violated Hill’s constitutional rights.”). More
specifically, Crum’s repeated blows allegedly levied against
31
Hill for “a good solid two minutes,” J.A. 142, 1 while Hill was
restrained, cooperative, and “attempt[ing] to hunch over [a]
desk,” id., in an effort to protect himself, even if they may
have caused only minor injuries, clearly constituted excessive
force in violation of his Eighth Amendment right.
B.
This case then turns on the second prong of the
qualified immunity analysis: whether the aforementioned right
was clearly established. See Pearson, 555 U.S. at 232. When
available, we consider “decisions of the Supreme Court, this
court of appeals, and the highest court of the state in which
the case arose” to discern whether a right was clearly
established. Owens ex rel. Owens v. Lott, 372 F.3d 267, 279
(4th Cir. 2004) (internal quotation marks omitted). To be
“clearly established,”
[t]he contours of the right must be sufficiently clear
that a reasonable official would understand that what
he is doing violates that right. 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 pre-existing law the unlawfulness must
be apparent.
Anderson v. Creighton, 483 U.S. 635, 640 (1987) (internal
citations omitted).
1
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
32
Thus, we must inquire whether on November 1, 2007, a
reasonable officer could have believed that repeatedly striking
a restrained, cooperative, hunched-over inmate, so long as only
de minimis injury resulted, “was lawful[] in light of clearly
established law and the information the officer[] possessed.”
Wilson v. Layne, 526 U.S. 603, 615 (1999). Appellant Crum
claims that he was entitled to assault Mr. Hill unabated for
over two minutes so long as any resulting injury was de minimis.
Indeed, at oral argument, Appellant Crum argued, in essence,
that there were no limits to excessive force as long as there
were no marks left on the victim, or in other words, “as long as
he didn’t hurt him, as long as he didn’t cause more than de
minimis injury.” Oral Argument at 2:17, Hill v. Crum, (No. 12-
6705), available at http://www.ca4.uscourts.gov/OAaudiotop.htm.
Not so. Under controlling Supreme Court precedent at the time –
– not to mention applying pure common sense –- no reasonable
officer could have believed such abuse was lawful.
1.
Controlling Precedent
On November 1, 2007, the controlling Supreme Court
authority for excessive force cases in the Eighth Amendment
context was Hudson v. McMillian, 503 U.S. 1 (1992). One need
only read the first paragraph of Hudson to realize the right at
issue was clearly established:
33
This case requires us to decide whether the use
of excessive physical force against a prisoner may
constitute cruel and unusual punishment when the
inmate does not suffer serious injury. We answer that
question in the affirmative.
503 U.S. at 4. The Supreme Court went on to emphasize as
follows:
When prison officials maliciously and sadistically use
force to cause harm, contemporary standards of decency
always are violated. This is true whether or not
significant injury is evident. Otherwise, the Eighth
Amendment would permit any physical punishment, no
matter how diabolic or inhuman, inflicting less than
some arbitrary quantity of injury.
Id. at 9 (emphasis supplied) (citation omitted).
At the time of the incident in this case, Hudson had
been controlling Supreme Court precedent for 15 years. In fact,
this was the controlling law even before Hudson. The Hudson
Court merely extended its prior holding in Whitley v. Albers,
475 U.S. 312 (1986) (regarding the legal standard for an Eighth
Amendment excessive force claim arising out of a prison riot),
to standard claims by inmates against prison officials for the
use of excessive force. Hudson, 503 U.S. at 6–7. Under Whitley
and Hudson, “‘the unnecessary and wanton infliction of
pain . . . constitutes cruel and unusual punishment forbidden by
the Eighth Amendment.’” Id. at 5 (quoting Whitley, 475 U.S. at
319). The Court explained that “the core judicial inquiry” in
excessive force cases is not whether a certain quantum of injury
was sustained, but rather “whether force was applied in a good-
34
faith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.” Id. at 7; see also Wilkins v.
Gaddy, 559 U.S. 34, 36 (2010) (“In requiring what amounts to a
showing of significant injury in order to state an excessive
force claim, the Fourth Circuit has strayed from the clear
holding of this Court in Hudson.” (emphasis supplied)). Thus,
although this circuit misinterpreted Hudson in Norman v. Taylor,
25 F.3d 1259 (4th Cir. 1994), the fact remains that Hudson and
Whitley set forth the long standing and clearly established
controlling precedent at the time of this incident.
2.
Use of Force
The law was, and is, clear; the proper focus is on the
force used, not on the resulting injury. In determining whether
force is permissibly applied, the Supreme Court has held that
“the extent of injury suffered by an inmate is one factor” of
many that should be considered. Hudson, 503 U.S. at 7 (emphasis
supplied); see also Williams v. Benjamin, 77 F.3d 756, 762 (4th
Cir. 1996) (“The absence of serious injury is a relevant, but
not dispositive, additional factor to be considered in the
subjective analysis [of an Eighth Amendment excessive force
claim].”). Other factors include “[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
35
responsible officials, and [4] any efforts made to temper the
severity of a forceful response.” Hudson, 503 U.S. at 7(internal quotation marks omitted).
Even if we assume Hill’s injuries were minor –– which
he does not concede –– analysis of the other factors make clear
Crum’s alleged use of force could be deemed excessive. Although
there had been a prior disturbance in Hill’s cell that resulted
in a broken sprinkler, there was no reason to exercise force to
restore order –– order had already been restored. Indeed, the
source of the disturbance –- Hill’s cellmate –- had been removed
from the cell at the time of the incident at issue. Hill
remained restrained, compliant, and cooperative when the prison
guards arrived on the scene. See J.A. 141–42 (“Officer Crum
came over to the cell and requested that we submit to hand
restraints. I submitted to hand restraints. He placed
handcuffs on us. . . . [Officer Crum] began to tell me I
couldn’t take my legal work out of the cell which was soaked
with water. During that time I put my legal work down, I put
the legal work down.”). Appellant Crum does not refute Hill’s
testimony. A lone cooperative inmate, handcuffed and hunched
over a desk could not pose a reasonable threat to a prison
officer sufficient to justify the use of force. Moreover,
Appellant Crum did not temper the severity of the force
employed, but, rather, allegedly continued beating Hill for a
36
total of two minutes. These factors indicate that Crum
exercised force, not in a good-faith effort to restore order,
but, rather, maliciously and sadistically simply to cause harm. 2
3.
Norman v. Taylor
Critically, as the district court correctly pointed
out, the facts of Hudson –– where a restrained, cooperative
inmate in the course of being transported to another cell, was
physically beaten by prison officials –- are far more analogous
to the present case than the facts of Norman. Indeed, Norman is
distinguishable from this case.
Unlike the present case, the inmate in Norman had
himself created a disturbance by yelling to other inmates which
disrupted prison security and justified at least some response.
Norman, 25 F.3d at 1263 n.5 (“On this understanding of the
incident, there can be no question that the district court
properly held that the force used was justified in a good faith
effort to maintain or restore discipline.” (internal quotation
marks omitted)). Here, as the majority notes, it was Hill’s
2
According to Hill, Crum threatened him saying “break
another sprinkler, I’ll break your neck.” J.A. 52. Hill’s
testimony further revealed that Crum’s use of force may have had
another malevolent purpose –- retribution. Hill testified that
in the month leading up to the incident at issue, he filed a
grievance with the prison against Officer Crum. Id. at 145 (“I
had Officer Crum written up previously.”).
37
cellmate, not Hill, who had broken the sprinkler and created the
initial disturbance. Ante at 3–4. And, in any event, the
disturbance had been quelled at the time of this incident. 3 As a
result, a reasonable officer could not have relied on Norman to
justify the sustained beating of a restrained and cooperative
inmate.
II.
Ultimately, whatever erroneous interpretive gloss
Norman placed on Hudson, see Wilkins v. Gaddy, 559 U.S. 34(2010) (abrogating Norman), on November 1, 2007, it would have
been readily apparent to a reasonable officer that where a
disturbance had already been abated, he could not assault a
restrained, compliant, and cooperative inmate for “a good solid
two minutes,” J.A. 142, punching and elbowing him repeatedly in
the abdomen and head, without applying excessive force in
violation of the inmate’s Eighth Amendment right to be free from
3
It should come as no surprise that this distinction ––
that is, the distinction between instances where force is
applied to restore order and instances where it is applied
without justification –– is of significance. In fact, we
recognized this exact distinction and its constitutional
consequences in Stanley v. Hejirika, 134 F.3d 629 (4th Cir.
1998). In Stanley, we found that “bruises, swelling, and a
loosened tooth sustained in a fracas that occurred while prison
guards were trying to quell a disturbance are constitutionally
insignificant and distinct from a loosened tooth and a cracked
dental plate sustained in the context of punishment deliberately
inflicted by guards because of a verbal argument.” Id. at 638.
38
cruel and unusual punishment. Accordingly, I would hold
Appellant Crum is not entitled to qualified immunity, and affirm
the decision of the district court.
39