Allain Delont Norman v. Otis Taylor, Deputy Sergeant
9 F.3d 1078
4th Cir.
1994
Check Treatment

*1 fact, 48-49, at In at 752-53. from Hams Younger of instruction the following the district hours within several the of system judicial the interfering with yesterday dismissal their of action motion the Virginia, Commonwealth afternoon, Virginia Supreme Court is denied. injunction claims, appellants’ agreed consider day a.m., 30th 5:55 Entered parties by by the 10:00 a.m. briefing ordered October, 1993. Monday morning. Nor, availability given the fair Luttig Michael J. remedy at thе time when adequate state Judge sought, was court intervention was federal great, threat of such im- there “a sufficient mediate, injury,” Kugler, irreparable 1530-31, 124-25, as

U.S. at judicial pro- in the state warrant intervention Plaintiff-Appellant, recognized exception pursuant cess to the “extraordinary circumstances.” Younger for 53-54, Younger, at 754- Indeed, at the time the federal district 55. TAYLOR, Deputy Sergeant, Otis filing, Virginia court state courts were in Defendant-Appellee. court position

the same federal great appellants did not suffer ensure that No. 92-6648. irreparable injury. appel- If and immediate Appeals, United States Court Virginia Supreme petitioned lants Fourth Circuit. Friday morning, Court even as late as rather court, proceeding in than federal district Argued June 1993. might already have well considered their claims. Decided Nov. sum, the courts the Commonwealth Granted, Opinion Rehearing In Banc appellants’ to consider claims were available June Vacated timely following in a fair and manner is- injunction. suance of state circuit court’s

Appellants those chose circumvent courts filing directly their suit in the federal Virginia, The state

district court. courts opportuni- consequence,

as a denied

ty in an to address their own state law area peculiar ‍​‌​​​​​‌‌​​​‌‌‌‌​‌‌​​‌​‌‌‌​​​​​‌‌‌​​‌‌​​​‌‌​​‌​​‍interest elec- state —state practices way might in a

tion have —and for further consideration of obviated the need

appellants’ federal constitutional claims. Es-

pecially given Virginia Supreme appel- agreed has to consider even

Court petition, perhaps

lants’ eleventh-hour expedition further

would consider still its dispute, appear

review of this would be

precisely circumstances in the Su- which Younger

preme Court has admonished appropriate.

abstention is strong have appellants

Because not made

showing of a likelihood success given appeal,

merits of their the likelihood properly

that the district court refrained *2 Counsel, Feiwus, Ap- A. Student

Leonard Program, George- Litigation pellate Clinical Center, University Washington, Law town (Steven Goldblatt, Director, DC, supporting vits Norman’s claim that argued H. Program, up swung Litigation on the ran at Norman’s face Clinical Appellate and, later, against brief), pushed up plaintiff-appellant. (Norman) attempted speak wall when he Stiles, Savage, Douglas Willcox Mark & jail to another official. One of affiants *3 (Conrad P.C., Norfolk, VA, argued M. Shu- allegation also corroborated Norman’s that madine, brief), defendant-appellee. for on Taylor verbally him. threatened HALL, PHILLIPS, LUTTIG, and Before Taylor’s affidavit the incident described Judges. Circuit differently. He stated that Norman was not well, yelling smoking making but thus OPINION carry to difficult for correctional officers HALL, Judge: K.K. jail leaving of out the roll call inmates Taylor day. that claimed that he told Nor- appeals D. Allain Norman quiet man to and closed the door between be judgment grant in favor area roll call Normаn and the where the Deputy Taylor Otis in Norman’s 42 U.S.C. held, being he denied he ever threat- but that Taylor alleging action that § 1983 violated jail’s ened or hit Norman. classification rights through Eighth Amendment his stating officer an submitted affidavit we excessive force. Because find that use of requests Norman’s record showed no for fact genuine issue material re- a exists medical treatment for thumb. Norman his garding сircumstances Norman’s facility Sep- to was transferred another claim, we reverse and remand.1 tember, 1990. I. Norman district found that did Norman, adequately not refute statement that According waiting to he was to be thus, disturbance, causing he was force was for processed admittance Norfolk necessary and the force was 5,1990, amount of not County (Virginia) jail March when excessive under circumstances. Sum- drag asked the inmate watchman he mary Taylor, judgment was entered for cigarette. The moment Norman started his smoke, appeals. Norman hallway ran down swung keys ring on a him and a set brass misses, at his face. After two Norman was II. hand, right

hit on which he raised to Summary judgment face. protect appropriate Norman claimed that he is immediately report pleadings, depositions, attempted the incident when “the answers to file, sergeant, Taylor pushed interrogatories, the desk but him to admissions affidavits, against gether any, “run up wall and threatened to with the if show that my genuine cell As a there issue material [sic] threw heart.” is no as to result, report moving fact party Norman not the incident and that the is entitled did judgment action was until later. When this filed some as a matter law.” Fed.R.Civ.P. 56(c). incident, and one-half months after the five “The evidence the non-movant complained believed, justifiable his hand Norman was still be and all inferences are times; in painful an in his Anderson swollen affidavit drawn favor.” (two Inc., 242, 255, years Lobby, Liberty dated March after the (1986) (cita incident), 2505, 2513, that the Norman in his S.Ct. omitted). persisted did ‍​‌​​​​​‌‌​​​‌‌‌‌​‌‌​​‌​‌‌‌​​​​​‌‌‌​​‌‌​​​‌‌​​‌​​‍tion thumb and that he not have full We review the district cоurt’s right grant of his Two hand. inmates who de novo. Far Cir.1990). Un, eyewitnesses to have well v. been filed affida- pro complaint, se 1. In his Norman also raised a unheeded. The district court dismissed this ground claim of deliberate indifference to correc- his medical claim on the defendant claim, support responsibility needs. In of this Norman tional officer had no for medical requested jail. Apрointed he medical treatment for his hand treatment at the counsel has requests appeal. than 15 but that his went this issue on times abandoned case, if force the need Even we assume that Norman an excessive relationship of force and the for the use knottier issue re- used and the need are the force between mains —are the claimed that are relevant tо the ultimate de enough factors serious a claim of a consti- of “whether the use force was termination tutional violation? We believe are. unnecessary ...” Hudson v. wanton

McMillicm, 1,-, III. 999, 117 or not Whether To on an succeed Amend is, then, causing a disturbance Norman was claim, prove ment inmate must clearly a material fact. The district court’s unnecessary officials “inflicted аnd wanton genuine conclusion that there was no issue *4 Albers, suffering.” Whitley and v. 475 regarding matter is on a narrow this based 312, 320, 1078, 1084, U.S. 89 reading of the record. (1986). 251 In the excessive force expressly It is true that Norman failed to context, Court has determined deny a disturbance. The that he had created judicial inquiry that “the core is that out set gave required district court Roseboro Whitley: applied in whether force was in a inviting Norman to submit affidavits notice2 good-faith effort to maintain or restore disci parties] truly disagree [the “that show that pline, sadistically maliciously and to cause important present facts about one or Hudson, at-, harm.” 503 112 U.S. S.Ct. case,” what turned out to be the but Eighth comprise at 999. Amendment claims you creating a distur pivotal question —were (was objective compоnent an the harm suffi directly posed never to him. bance? —was serious?) subjective ciently component and a Moreover, repre because Norman was (did sufficiently culpa the official act with a counsel,3 by pleadings should be sented mind?). Seiter, ble state of v. Wilson 501 degree with a certain of latitude. See viewed -, -, 2321, 2324, 111 U.S. S.Ct. 115 Kerner, 92 Haines U.S. S.Ct. (1991). that, Taylor L.Ed.2d 271 contends (1972) (inmate’s pro 30 L.Ed.2d 652 se сom regardless of the need for or of his force standards). stringent At plaint held to less mind,4 injuries alleged by state of Nor least, have should allowed sufficiently satisfy man were not serious to clarify position impor on this Norman objective prong. Hutto, tant factual matter. See Carter v. (4th Cir.1986) (where pretrial Eighth proscribes The F.2d 1028 or Amendment required degree “pain” der did not inform inmate of wanton infliction of and the malicious “harm,” specificity summary testimony although from use of force cause de witnesses, potential the court should have minimis uses of force are excluded from Hudson, deficiency recognition. informed the inmate of this and constitutional cure). -, opportunity him at 1000. The “harm” afforded S.Ct. event, logical alleged by Norman includes the initial and inference from the hand, inju- by lingering pain physical to his materials submitted Norman is that the (the only catalyst swelling and decreased for the attack was Norman’s ries sustained hand), cigarette. mobility psychological and Garrison, clearly 528 F.2d 309 Cir. Norman’s face exceeded the amount of Roseboro 1975). required. imagine It a sound force is hard using any physical penological justification for forcе, any prior warning, appointed only appeal for such a 3. Counsel was after the without may jail's have received minor of the rules. The actions of had been filed. violation Norman, Taylor, could some assistance from a student involved in a Officer as described Virginia certainly support finding postconviction project that he acted "mali assistance at a school, sadistically ciously law but this is no reason to bend the rules and to cause harm.” At this pertaining pro litigants. point, subjective Norman has satisfied the com se Leathers, ponent. See Miller v. facts, (en banc) (if (4th Cir.1990) sup 4. Under version of the Norman’s wantonness," prima only enough stop ports needed force to Norman from “reliable inference of denied, events, established), smoking. Aсcepting must, this version of as we facie case is cert. swinging heavy, keys at the act of brass fall by Taylor.5 plate). dental Norman’s flowing from the threats “sig- territory lying inju- largely uncharted below us is whether these question before The of nificant” or “serious.” ries, the circumstances apart from viewed infliction, insignificant as are so their to dissect the various find no occasion We Eighth Amendment unаble injury, harm and force correlations between claim. cetera, injury, injury pain, et and analysis each fits into the constitutional how injury” is not lack of “serious purposes For the of excessive force cases.8 Id., force claim. an excessive fatal to us, that we appeal before it suffices (“The -, absence of seri Norman, injury including find the injury is ... relevant ous aspeсts physical psychological both the inquiry, but force] [excessive Amendment continuing pain, to be and the initial and it”).6 Although the Court stat does not end objective beyond the de minimis level. decency “contemporary standards ed met at the component has been “prison officials always are when violated” inju- of this judgment level. How the extent maliciously force to cause sadistically subjective ry inquiry informs the into the words, subjective when the harm” —in other explo- component is a matter left for further *5 satisfied—Hudson does component is remand. ration on may in be stated the that such a claim hold minimis or one of de injury absence IV. at-, 1000; Id. 112 S.Ct. proportions. Wrigley, v. Dep’t Revenue Wisconsin ‍​‌​​​​​‌‌​​​‌‌‌‌​‌‌​​‌​‌‌‌​​​​​‌‌‌​​‌‌​​​‌‌​​‌​​‍see summary judg- grant of We reverse the 2447, 2458, 120 U.S.-,-, 505 and re- on the excessive force claim ment (1992) (citing Hudson for the 174 proceedings. mand for further curat lex that de minimis non

proposition AND REMANDED. REVERSED enactments). Although legal applies to all clearly by are injuries claimed the LUTTIG, dissenting: Judge, “push from a something more than those majority’s holding that shove,”7 inju disagree I with the than the are less severe (bruis genuine of material inmate in Hudson appellant raised a issue by ries suffered the causing a distur- es, and a cracked fact as to whether he was swelling, loosened teeth shove, eveiy may push or even if later alleged Norman are 7. "Not it threats directed at 5. The unnecessary peace judge’s the of a seem chambers, in inquiry Hudspeth v. as well. See relevant to this prisoner's violates a constitutional (4th Cir.1978) (noting Figgins, 584 F.2d 1345 Glick, 1028, rights.” 481 F.2d 1033 Johnson may Eighth claim be stated that an Amendment 1033, denied, (2d Cir.), cert. 414 U.S. prison guards by two who an inmate 462, denied, life), 99 cert. threatened his (1979); 386 see also Hud 60 L.Ed.2d instance, fairly direct 8. For while there is often U.S., at--, (Black son, 112 S.Ct. (" force used between the amount of correlation mun, J., ordinary concurring) its ‘Pain’ in always resulting injuries, the such is not and the psychologi meaning surely a notion of includes Waters, Strickler v. 989 F.2d case. See Jackson, harm”) Northington v. 973 F.2d cal and Cir.1992) (4th Cir.1993) injury (noting that can 1381 n. 6 (10th (holding that inmate stated pain inflicted with- be inflicted without by Eighth Amendment excessive-force problem injury). Compounding the the is out prison put gun to alleging official that a tendency concepts to use the Court's him). to kill head and threatened injuries” uses of and “de minimis "de minimis interchangeably. physical See force" almost Hudson, -, context of a conditions-of-confinement In the S.Ct. аt 1000 503 U.S. at case, received, objective the (holding or medical treatment extent of -the that the minor, high, subjective quite com- while the threshold which the circuit court found ponent dismissing § in force cases. because is lower than excessive 1983 claim no basis for Hudson, See, e.g., Griffin, which caused Williams "the blows directed at teeth, Cir.1991) (to bruises, prima swelling, a cracked establish a condi- lоosened facie case, Eighth plate, demon- de inmate must dental are not minimis tions-of-confinement Strickler, purposes”); deprivation human see also a serious of a basic Amendment strate interchangeable by (noting to conditions F.2d 1381 n. need and deliberate indifference terms). officials). justi- appellant, in any force was informed who event thus whether some bance аnd counsel, represented by I the circumstances. also dis- in order to fied under majority’s summary judgment required in avoid conclusion dicta he was agree with the specific any injury appellant was “set out ... that show that [he] sustained facts cogniza- truly disagree[d] and therefore and the defendant about more than de minimis important present Amendment. Accord- one or more in ble under the this facts added). (emphasis case.” Id. at 46 ingly, I dissent. instructed, significant court further in lan- guage majority, not mentioned I. plaintiff, exhibits, in “the his affidavits and majority, only holding by the In the himself, clearly possi- should address as as of sum the district court’s award reverses ble, to the issues and facts stated mary judgment in the defendant’s favor complaint and in the affidavits of defen- ground court niggling added).2 (emphasis dants.” Id. at 46-47 directly posed [appellant]” “never majority As and the acknowl- creating a distur question of whether he was edge, despite pointed these admonitions from added). (emphasis Ante at 1081 bance. court, appellant disputed, never in either court, however, no obli district was under original supplemental submissions or his question plaintiff in gation pose filings,3 allegation the material that he wаs motion, ruling on the being disruptive at the time of the majority authority offers no whatsoever Nor, specifi- incident. district as the discussion) (and of its con little found, cally Sergeant id. 77 n. were event, trary implied by conclusion. challenged by averments either of holding majority’s forced that the district appellant’s fellow inmates who af- submitted *6 “directly” question, not ask this court did Tay- fidavits in of his assertion that аppellant district court fact did ask lor struck him. See id. at 68-70. Under question for not ask that is now reversed circumstances, prop- these the district court ing directly. appended affidavit more erly concluded there existed no material summary judgment, to his motion for Ser dispute appellant as to whether was geant Taylor explicitly represented alleged disturbance the time disruptive” “began “Norman became incident. being yelling at and to the inmates assem passageway bled outside the to be taken II. 34-35,1 court,” (Taylor’s) and that his J.A. discipline Although it reverses the district court’s “maintain[]

actions were taken to security, ‘maliciously judgment award of because an is- and not and sadisti ” harm,’ cally very causing question fact existed on the purpose for the sue material Glick, (quoting appellee’s prompted actions were id. at 23 Johnson v. 481 F.2d whether (2d 1028, Cir.), appellant’s proceeds the court cert. denied sub nom. Johnson, appellant’s alleged dicta to conclude also that John v. (1973)). serious, injury, although significant district court not 38 L.Ed.2d explained appellant's respond Taylor's structed the court to to the "affidavits affidavit "disruptive prison security conduct was as the of the defendants.” See J.A. at 47. deputies attempting to an accurate create being transported list of the inmates to court that appellant originally submitted his sum- 3.When day,” through that was "verified a roll call list original signa- mary judgment materials without procedure." notarization, Id. at 35. provid- tures the district court twenty thirty days, ed and then addi- him first appellant disingenuоusly argues days, to refile those documents. Id. at 48- 2. Counsel for tional Sergeant Tay- appellant appellant responded "not 49. After that the district court instructed motion, requested respond direct- lor’s he [to] or refer to affidavit affidavits, supplemental ly.” Reply time to file See Br. at 2 n. 1. It did not so additional post- appellant, the full in- because he had obtained assistanсe from instruct as is clear from court, struction, project. misquoted by appellant Id. at 60. The over which was conviction objection, granted well. Id. at 62. appellant specifically in- this motion as as to omit that of Rule governing application ry principles purposes of minimis for than de judgment. appellee is entitled Ante at 1082.4 Eighth Amendment. especially un- unnecessary discussion This

fortunate, is even more reason ‍​‌​​​​​‌‌​​​‌‌‌‌​‌‌​​‌​‌‌‌​​​​​‌‌‌​​‌‌​​​‌‌​​‌​​‍there because grant of sum-

to affirm regard.

mary judgment in that he has only claim is

Appellant’s thumb, single piece is not a and there sore support this claim. even to

record evidence (district finding appel- J.A. America, STATES UNITED corroborating any evi- produce lant failed Plaintiff-Appellee, Indeed, injury). of his dence proffer fail to evi- appellant did independent injury to rebut dence MOLEN, Eg E. Charles Charles E. a/k/a stating that a provider’s affidavit medical bire-Molen, Eromosele Charles a/k/a no files revealed Norman’s medical search of Defendant-Appellant. Molen, injured, see id. that he had been evidence of record there is an abundance America, STATES UNITED injury signifi- at all. Most that there was no Plaintiff-Appellee, cantly, record shows examinatiоns, separate medical three at least day including one the MOLEN, Defendant-Appellant. Harrison incident, which disclosed none of 92-5788, 92-5789. Nos. by the ma- not mentioned to his hand —facts surprisingly, as jority. Id. at 30-38.5 Not Appeals, States Court United acknowledges, there is majority impliedly Fourth Circuit. psychological absence of evidence a similar injury. Argued Oct. *7 9, 1993.

Decided Nov. III. sum, recognized, as the district kind of for which precisely the case

this is Appellant chose

Rule 56 was intended. unsupported allegations entirely

rest response proffered pleadings in

in his summary judgment.

evidence only there no consequence, not

As a appellant was dispute that

factual no evidence that he there was injured. the most elementa- Under

was even that, complaint Appellant’s original stated that he majority dicta even 5. also states in all, requests for med- had submitted fifteen to sixteen assuming was no that there single produce could not swinging keys ical attention. He at Norman is itself mere act of requests one of those to defeat sufficient force actually material "maliciously submitted. In the that the actions were taken (and complaint ‍​‌​​​​​‌‌​​​‌‌‌‌​‌‌​​‌​‌‌‌​​​​​‌‌‌​​‌‌​​​‌‌​​‌​​‍beyond appellant's af- sadistically n. submitted fidavit, cause harm.” Ante at 1081 again merely a restatement of insurgent prison- which Merely swinging at an cannot, complaint's allegations), com- under an effort to restore order er in plained Grievance Form that reading in an Inmate Court’s or reasonable "faking" thought give doctor that he precedent, to an rise injury. Id. at 66. hand Amendment violation.